No. 90-017 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

STATE OF MONTANA, Plaintiff and Respondent,

-vsOWEN TODD EVANS, Defendant and Appellant- ""RK@~~uPREE~~wY~ &TAT%O(P. 4 APPEAL FROM: ~istrict Court of the EighteenthJudicialDistrict, In and for the County of Gallatin, The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD: For Appellant: Edward G. Beaudette; Knight, Dahood, McLean and Everett,Anaconda, Montana For Respondent: Hon.MarcRacicot,Attorney General,Helena,Montana Elizabeth L. Griffing,Assistant Attorney General, Helena, Montana A. Michael Salvagni, County Attorney, Bozeman, Montana Marty Lambert, Deputy County Attorney, Bozeman, Montana

Filed: Submitted on Briefs: October 19, 1990 Decided: February 14, 1991 ..I*Justice Diane G. Barz delivered the Opinion of the Court.

Owen Todd Evans appeals from his September 28, 1989, conviction of aggravated burglary, two counts of felony assault, and one count of felony theft by a jury sitting in the District Court of the Eighteenth Judicial District, Gallatin County. We affirm. Evans presents the following issues: 1. Did the jury improperly find a llstun-gunn to be a weapon forpurposes of aggravated burglary and felony assault? 2. Did theDistrictCourt err in failingto instructthe jury

on the definition of a weapon under Montana law and on the lesser included offense of assault? 3. Was Evans subjected to double jeopardyby being convicted for both aggravated burglary and felony assault? 4. Did the District Court err in failing to exclude from evidence the contents of Evans1 gym bag when it was shown to contain itemsnot listed on the original inventorywhen thebag was seized? 5. Did the District Court err in allowing the testimony of William Kayser as an expert in the field of handwriting analysis and questioned document examination? 6. Was the sentence imposed by the District Court improper due to its scope and severity? 7. Did the District Court properly exclude Evans1parents, who were potential witnesses, from the courtroom? On the night of March 2, 1989, Holly Engdahl, a student at 2Montana State University, was awakened in her bedroom by a man wearing a skimask and gloves. The attacker told Engdahl to "shut up1'and jabbed Holly repeatedly with a device later identified as

a ''stun gun,'' leaving burns on Engdahl's body. Engdahl also suffered bruises and a bloody nose in the attack. The two struggled, and Engdahl broke free and ran to the basement of her condominium, where she tried the telephone,which

was inoperable, and hid for a few minutes. When all was quiet, Engdahl came out of her hiding place. She then heard a noise and went to the gun cabinet. As Engdahl unlocked the gun cabinet, a bullet was fired from upstairs through the floor, striking the gun cabinetand the light switch. Engdahl grabbed a rifle from thegun cabinetand heard the front door shut. carrying the rifle,she ran in her nightshirt and bare feet through snow to a neighbor's residence for help. Engdahl thought thather assailant's voice sounded similar to that of a neighbor, Owen Evans, whom she had known for a number of years. Evans had sent Engdahl flowers and asked her for dates, which she refused after going out with him twice. police searched Evans' condominium, one door down from Engdahl's residence. They seized several items demonstrating Evans1obsession with Engdahl, including a calendar noting when various people had come to her condominium. Police also seized a cassette tape of recordedphone conversationsbetweenEngdahl and other peopleand laterdiscovered that Evans had tapped Engdahl's phone. The police additionally seized a slide and barrel mechanismfor a .45caliber handgun, abox of instructions for a DefenderPro 40 stun gun, and battery chargers with a 9-volt rechargeable battery, the size necessary to operate the stun gun. Police also took a wallet containing forms of identification belonging to the defendant, cash, and credit cards. When thepolice searched Evans1pickup truck, they discovered two loaded .45calibermagazines andnumerous roundsof .45 caliber ammunition. On March 4, 1990, the police issued a warrant for Evans1 arrest, and the next day his truck disappeared. One of Evans1 credit card companies, contacted by police, notified them that Evanshad used a creditcard in Pocatello, Idaho. Pocatellopolice apprehended Evans who consented to a search of his truck. Police seized a gym bag containing 30 items, including a .45 caliber pistol frame and a Defender Pro 40 model stun gun. Evans later moved for suppression of the evidence contained in the gym bag on the ground that two items in the bag, two tubes of lubricant,were omitted in the inventory of its contents. Policewere able topiece togetherwhere Evanshad hidden from the time of the attack until he left in his truck. Distinctive footprints led from Engdahl's condominium to condominium No. 34 owned by a woman who lived out of town. Engdahllsfingerprints

were found on a lightbulb and telephone in the condominium. Some items missing from condominium 34 were later found in Evans1 possession. The police also seized a Ruger .44 caliber pistol taken from the gun case in Engdahllscondominium, a slide andbarrel mechanism for a .45 caliberhandgun, a black knit ski mask, and a pair of tennis shoes. The cartridge casing taken from Engdahllscondominiummatched the .45 receiver taken from Evans' truck in Pocatello and the barrel and slide found in condominium 34. The hairs found on the ski mask were substantially similar to those taken from Evans1 head. The tennis shoesmatched theprints in the snow leading from Engdahllscondominium to condominium 34. The morning after the attack, Engdahl's automobile was discovered missing. Her car was later found in the garage for condominium 34. Plastic garbage bags had been stapled over the garage windows. Staples used to secure the garbage bags matched fired staples from a staple gun seized from Evans1condominium. Evanspresented no evidence at trial. He was found guilty of all four offenses with which he was charged. Duringthe sentencing hearing, an expert testified that Evans was not suffering from amnesia as he had claimed, that he had a preoccupation with weaponry and methods of restraint, and that he showed indications that he was a sexual psychopath or sexual sadist. The District Court imposed the following prison sentence on Evans: 1. Aggravated burglary: 40yearswith an additional 10years for use of a weapon, the stun gun. 2. Felony assault: 10yearswith 10 additionalyears foruse of the stungun to be served concurrently with the above sentence. 3. Felony assault: 10 years with 10 additional years forfiring a gun, to be served consecutively to the sentence imposed for counts one and two. 4. Felony theft: 10 years to be served consecutively to the sentences for counts one, two, and three. The ~istrict Court designated Evans as a sexual offender to receive sexual offender treatment in Montana State prison and ordered that Evans not be released for parole until he had satisfactorily completed such treatment. The court also declared Evans ineligible for parole for 25 years.

I Did the jury improperly find a llstun-gunll to be a weapon for purposes of aggravated burglary and felony assault? Owen Evans was convicted of one count of felony assault arising from the attack upon Holly Engdahl with an electric stun gun. Thedifferencebetween misdemeanor assaultand felony assault is whether a weapon is used to cause bodily harm: (2)A person commits the offense of felony assault if he purposely or knowingly causes: (a)bodily injury to another with a weapon; (b)reasonable apprehensionof seriousbodily injury in another by use of a weapon; or (c)bodily injury to apeace officer or aperson who is responsible for the care or custody of a prisoner. Section 45-5-202(2), MCA. 

### A "weapon" is Itanyinstrument, article,

or substancewhich, regardless of its primary function, is readily capable of being used to produce death or seriousbodily injury." Section 45-2-101(71), MCA. 

### In turn, llserious bodily injury1'is 6defined as follows: I1Seriousbodily injuryI1means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ. It includes seriousmental illness or impairment. Section 45-2-101(59), MCA. Evans claims that the State did not show that a stun gun meets the statutory requirements of 55 45-2- lOl(71) and (59),MCA, by demonstrating that a stun gun is capable of causing death, llsubstantial risk of death,"or Itprotractedloss or impairment of the function or process of any bodily member or organ. The test for sufficiency of the evidence with respect to a factual element of a crime is whether any rational trier of fact could have found that element beyond a reasonable doubt. Statev. Earl (Mont. 1990), 790 P.2d 464, 465, 47 St.Rep. 351, 353. The weaponproducedburns on Engdahlls body,and Engdahl testified that shewas burned by I1somesort of device that every time it touched me, it set off sparks. And it would drain me. IId feel real drained after I got hit with it." Further, the stun gun instructions admitted into evidence stated: A short blast of 1/4 second duration will startle an attacker, cause minor muscle contractions and have a repelling effect. A moderate length blast of 1 to 4 seconds can cause an attacker to fall to the ground and result in somemental confusion. It may make an assailant unwilling to continue an attack,but hewill be able to get up almost immediately. A full charge of 5 seconds can immobilize an attacker, cause disorientation, loss of balance, falling to the ground and leave them weak and dazed for some minutesafterward. NOTE: Any blast lasting over 1 second is likely to cause your assailant to fall. If you do not help them down, gravitymay injure them. The instructions show that a stun gun is capable of immobilizing

a person and could seriously injure a person who falls afterbeing shocked by the gun. Previously, instruments potentially less harmful than a stun gun have been found to be weapons. We have upheld the jury's finding that an ashtray is a weapon. State 

### v. Klemann (Mont. 1981), 634 P.2d 632. A pair of panty hose qualified as a weapon in State v. Howard (1981), 195 Mont. 400, 637 P.2d 15. In State

v. Matson (1987),227Mont. 36,736 P.2d 971,a pellet gunwas said to be a weapon. Statutes in Illinois,Michigan, North Carolina, North Dakota, and the City of New York describe stun guns as weapons. See Ill. Rev. Stat. ch. 38,para. 24-1 (1985);Mich. Comp. Laws § 750.224 (a)

(Supp. 1990);N.C. Gen. Stat. 5 14-269(a) (1990);N.D. Cent. Code § 62.1-01-Ol(1) (1985); New York City Adm. Code 

### 5 10-135(a)-(d)

# . The New York City Council made it an offense to possess or sell a stun gunbecause stun guns "Imaybe used by criminalsto subdueand disable their victims while engaged in the commission of crimes against them. People v. Lynch (N.Y. City Crim. Ct. 1989), 546 N.Y.S.2d 538, 539 (quotingLocal Laws 1985,No. 38, Section 1). Recently, the Ninth Circuit Court of Appeals upheld a conviction of boarding an airplane while concealing a dangerous weapon where the defendant had a concealed stun gun. U.S. v.Wallace (9th Cir. 1986), 800 F.2d 1509, cert. denied, 481 U.S. 1019, 107 S.Ct. 1901, 95 L.Ed.2d 507. According to federal caselaw, a dangerous weapon is an instrument which is capable of producing death or great bodily harm, a definition similar to the Montana definition of aweapon. SeeUnited States

### v. Dishman (9th Cir. 1973), 486 F.2d 727, 730. Rejecting the defendant'sargument that a stun gun merely incapacitates its victims temporarily and cannot inflict serious permanent harm, the court noted that a single stungun could incapacitate twenty to fortypeople at a time and could cause permanent injury to the eyes. Wallace, 800 F.2d at 1513. In Matson the rationale for finding a pellet gun to be

a weapon was that ''ahigh-velocity pellet in the eye is certainly capable of inflicting 'seriousbodily injury."' Matson, 227 Mont. at 40-41, 736 P.2d at 974. The jury's finding that a stun gun is a weapon is consistent with federal caselaw, statutes of other states, and Montana law and is supported by the evidence. We hold that the evidence is sufficient for the trier of fact to deduce that a stun gun is a weapon capable ofproducing seriousbodily injury as defined by 55 45-2-lOl(71) and (59)

### , MCA.

I1 Did the District Court err in failing to instruct the jury on the definition of a weapon under Montana law and on the lesser included offense of assault? Evans claims that the District Court failed to instruct thejury on the definition of a weapon, which in turn meant that the jury should have been instructed on simple assault, as well as aggravated assault. Since Evans failed to object to the instruction at trial, he is now precluded from raising the issue on review. Section 46- 20-104(2)

### ,MCA,provides that [f]ailure tomake a timelyobjection during trial constitutes a waiver of the objection except as provided in 46-20-701(2)

# . Since 5 46-20-701(2), MCA, does not apply, Evans may not challenge this instruction on appeal. State

v. Smith (1984), 208 Mont. 66, 71-74, 676 P.2d 185, 188-190. In addition, Evans failed to offer an instruction that misdemeanor assault is a lesser included offense of burglary. Errormay notbe predicated upon the failuretogive an instruction when theparty alleging the error failed to offer the instruction. Statev. Smith (1987), 228 Mont. 258, 265, 742 P.2d 451, 455. We decline to consider this issue because it is not properly before the Court.

I11 Was Evans subjected to double jeopardyby being convicted for both aggravated burglary and felony assault? Evans claims that since a stun gun is not a weapon, he was subjected to double jeopardy by being punished twice for the same misdemeanor assault arising from the use of the stun gun and also by having two sentencing enhancements for use of a weapon. Since we have held that the evidence was sufficient for 

### thejury to conclude that the stun gun was a weapon, Evans1argument ismoot. In addition, Evans asserts that the District Court erred in imposing sentences forboth aggravated burglaryand felony assault. Aggravated burglary and felony assault are two distinct offenses requiring proof of several different elements. One can commit aggravated burglary without perpetrating aggravated assault, and

onecancarry out aggravatedburglarywithout performing aggravated assault. Statev. Wells (1983), 202 Mont. 337, 352, 658 P.2d 381, 389. As explained in Wells: The legislature unmistakably intended multiple punishments for the offenses of aggravated burglary and aggravated assault. If a person enters or remains unlawfully in an occupied structure with the intent to commit an aggravated assault, he has committed a burglary. If he then commits the aggravated assault,he may be convicted of it and sentenced for it in addition to conviction and sentencing for the burglary. Wells, 202 Mont. at 354, 658 P.2d at 390. Evans' conviction of both crimes did not constitute double jeopardy.

Did theDistrict Courterr in failingto exclude from evidence the contents of Evans1gym bag when it was shown to contain items not listed on the original inventory when the bag was seized? Evans asserts that the omission of two items from the inventoryof the contentsof thegymbag demonstrated a substantial change of the evidence warranting that thegymbag and its contents be excluded from evidence. Sincethebag contained a stungun, the evidencewas critical to the charges against Evans.Determinationofwhether aproper foundationhasbeen laid for the introduction of exhibits into evidence rests with the trial court and itsdeterminationwill notbe overturnedon appeal absent clear abuse of discretion. State 

### v. Fox (1984), 212 Mont. 488, 491, 689 P.2d 252, 254. To support proper identification and foundation,theprosecutionmust show that the exhibit isconnected with the crime and identified as such. McGuinn 

### v. State (1978), 177 Mont. 215, 221, 581 P.2d 417, 421. Montana recognizes two methods of identifying physical evidence: ready identification and chain of custody. When the evidence has a unique characteristic that makes it readily identifiable,chain of custody need not be shown. State

### v. Conrad (Mont. 1990), 785 P.2d 185, 189, 47 St.Rep. 32, 37. Here, the chain of custody method was appropriate. The burden is on defendant to show any tampering prior to acquisition of the evidence. State v. Walton (1986), 222 Mont. 340, 343, 722 P.2d 1145, 1147. The burden is on the prosecution to demonstrate that after the Stateacquired the evidence,no substantialchange in the evidence occurred and that the evidence was in the State's continuouspossession. Conrad, 785 P.2d at 189, 47 St.Rep. at 37. The exhibit was identified as the same bag that was seized from Evansftruck. The officer testified that the bag was in the

same condition as when it was seized and established its chain of custody. Two items out of thirty in the bag were omitted from the inventory due to a clerical error. A defect or deficiencywith respect toproper identification,such as a clerical error, goes to the weight of evidence and not its admissibility. Statev. Grant (1986), 221Mont. 122, 134, 717 P.2d 562, 570. As in Grant, the defendant challenged the chain of evidence in front of the jury, and the jury had the opportunity to weigh the evidence. Further, no evidence exists of any change in the items in thebag or tampering with the evidence. We hold that the District Court did not abuse its discretion in admitting the bag and its contents.



### v Did the District Court err in allowing the testimony of William Kayser as an expert in the field of handwriting analysis and questioned document examination? Evans maintains thatKayser should not havebeen qualified as

an expertpursuant toRule 702,M.R.Evid., becausehis trainingand experience as an expert in handwriting analysis and questioned document examination were inadequate. Under Rule 702, M.R.Evid., a witness may be qualified as an expert by knowledge, skill, experience, training, or education. Thedeterminationthat a witness isan expert is largelywithin the discretion of the trial judge, and such determination will not be disturbed on appeal unless the court is shown to have abused its discretion. State v. Martin (1987), 226 Mont. 463, 736 P.2d 477. "Thedegree of a witness1qualificationsaffects theweight of the expert's testimony, not its admissibility.I1 Martin, 226 Mont. at 466, 736 P.2d at 479.William Kayser, a detective with the Bozeman Police Department, had taken a two-week questioned document course, had worked on approximately 20 criminal cases as a handwriting expert, and was spending approximately 25 percent of his time on the examination of questioned documents. Based on his experience and training,he gave a very complete examination of the documents in this case. As we have previously stated, ll[c]ross-examinationis the shield to guard against unwarranted 

### opinion^.^^ Stewart v. Casey (1979), 182Mont. 185, 193, 595 P.2d 1176, 1180. In addition, the defense was free to offer testimony rebutting the detective's analysis, but did not do so. The District Court instructed the jury that the jury could give expert testimony whatever weight it deserved and could reject the testimony entirely, if in the jury's opinion the testimonywasunsound. Wehold that theDistrict Court did not abuse its discretion by allowing Detective Kayser to testify as an expert.

VI Was the sentence imposed by the District Court improper due to its scope and severity? Evans contends that he should not have been charged with felony assault for use of the stun gun because a stun gun is not

a weapon under Montana law. Since we have upheld the jury's treatment of a stun gun as a weapon, the charge of felony assault is appropriate, and the District Court did not err in enhancingEvans1 sentence for use of a weapon. Evans also alleges that the District Court abused its discretion in denying eligibility for parole for twenty-fiveyears and requiring sexual offender treatment. Ineligibility for parole is governed by 5 46-18-202(2), MCA:

Whenever the district court imposes a sentence of imprisonment in the stateprison for a term exceeding 1 year, the courtmay also impose the restriction that the defendant be ineligible for parole and participation in the supervised release program while serving his term. If such a restriction is to be imposed, the court shall state the reasons for it in writing. 

# . . . The District Court stated in its Reasons for Sentence:

[The defendant] is deemed to be shrewd, self-serving, deceitful, extremely dangerous, a high risk for escape and for futurecrimes. The court also takes intoaccount the testimony in this case which indicates a very thorough preparation for the crime on behalf of the defendant,an insidious invasion into theprivacy of the victim, the tapping of her phone wires, the ordering of lingerie in her name deliverable to him, the careful analysis of theMontana Criminal Code to see what crimes hewould be committingandwhat theconsequences of those crimeswould be, a very elaborate attempt to set up the crime and to cover his escape.

The District Court designated Evans as a I1dangerous person,I1 taking thedefendantoutof the categoryof llnondangerous offender" pursuant to § 46-18-404(1)

## , MCA. We have previously held that a defendant need not have had a prior criminal record to "represent

a substantial danger to other persons or society,11 as required by 5 46-18-404(1), MCA. Statev. Baldwin (1990),242 Mont. 176, 184- 86, 789 P.2d 1215, 1221-22. Similarly,we hold that the District Court set forth sufficient reasons for finding that Evans is not

anondangerous offenderand for limitinghis eligibility forparoleto 25 years pursuant to 5 46-18-202(2), MCA. Inexacting additional sentencing restrictions,suchassexual offender treatment, the District Court must comply with 

### 55 46-18- 201 and 202, MCA. Pursuant to 

### 5 46-18-201(1) (a) (x)

## , MCA, reasonable restrictions may include Ifany 

# . . 

# . reasonable conditions considered necessary for rehabilitation or for the protection of society.'I Pursuant to 5 46-18-202(1) (e)

### , MCA, the courtmay impose any restriction or condition "reasonably related to the objectivesof rehabilitationand theprotection of society.I1

The sentencing condition must correlate with either the rehabilitationof the offender or theprotection of society. State

v. Black (Mont. 1990), 798 P.2d 530, 534, 47 St.Rep. 1677, 1682. InBlack theDistrictCourt foundthe court'sadditional sentencing condition of sexual offender treatment reasonable sincethe record supported the sexual nature of the assault conviction and the defendant's need for sexual offender treatment. Black, 798 P.2d at 534-35. The record reveals Evanst obsession with the victim and suggests a sexualmotive for the assault. In addition, during the sentencing hearing, a psychologist testified that Evans could be

a 'Isexualpsychopathl1or "sexual sadistu and recommended that he be fully evaluated by an expert in this field. We hold that the District Court did not err in imposing the condition of sexual offender treatment as part of Evans1sentence since it correlates with Evans1need for rehabilitation.Evans also alleges that the District Court abused its discretion in imposing the maximum sentence on each count and enhancing the sentence for use of a weapon. To the extent that Evans is disputing the severity of the sentence, he must seek relief from the Sentence Review Division. As we have long held, "I[w]e will not review a sentence on appeal for mere inequity or disparity. Such a review is tobe conductedby the SentenceReview Division.111Statev. Almanza (1987), 229 Mont. 383, 386, 746 P.2d 1089, 1090-91 (quotingStatev. Lloyd (1984), 208 Mont. 195, 199, 676 P.2d 229, 231). We hold that the District Court did not abuse its discretion in sentencing Evans.

VII Did the District Court properly exclude Evans1parents, who

were potential witnesses, from the courtroom? Evans complains that the District Court should not have excluded hisparents from the courtroom because it deprived him of their comfort and support during the trial. Sequestrationof witnesses is amatter of discretion with the court. Statev. Radi (1975), 168 Mont. 320, 326, 542 P.2d 1206, 1210. Although Evans1parents did not testify, they were listed

aspotential witnesses at thebeginning of the trial. Wehold that theDistrictCourtdid not abuse its discretion in excluding Evans1 parents from the courtroom since they were potential witnesses.Affirmed.