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 Eighteenth Judicial District, 

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. Marc Racicot, 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 

for purposes of aggravated burglary and felony assault? 

2. 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? 

3. Was Evans subjected to double jeopardy by 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 items not listed on the original inventory when the bag 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 Evans1 parents, 

who were potential witnesses, from the courtroom? 

On the night of March 2, 1989, Holly Engdahl, a student at 

2 
Montana State University, was awakened in her bedroom by a man 

wearing a ski mask 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 

cabinet and the light switch. Engdahl grabbed a rifle from the gun 

cabinet and 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 that her 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 Evans1 obsession with Engdahl, 

including a calendar noting when various people had come to her 

condominium. Police also seized a cassette tape of recorded phone 

conversations between Engdahl and other people and later discovered 

that Evans had tapped Engdahl's phone. 

The police additionally seized a slide and barrel mechanism 
for a .45 caliber handgun, a box of instructions for a Defender Pro 

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 the police searched Evans1 pickup truck, they discovered 

two loaded .45 caliber magazines and numerous rounds of .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 

Evans had used a credit card in Pocatello, Idaho. Pocatello police 

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. 

Police were able to piece together where Evans had 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. Engdahlls fingerprints 

were found on a light bulb 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 Engdahlls condominium, a slide and 
barrel mechanism for a .45 caliber handgun, a black knit ski mask, 

and a pair of tennis shoes. 

The cartridge casing taken from Engdahlls condominium matched 

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 shoes matched the prints in the snow leading from 

Engdahlls condominium 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 Evans1 condominium. 

Evans presented no evidence at trial. He was found guilty of 

all four offenses with which he was charged. During the 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: 40 years with an additional 10 years 

for use of a weapon, the stun gun. 

2. Felony assault: 10 years with 10 additional years for use 

of the stun gun to be served concurrently with the above sentence. 

3. Felony assault: 10 years with 10 additional years for 
firing 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. The difference between misdemeanor assault and 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 apprehension of serious bodily injury 

in another by use of a weapon; or 

(c) bodily injury to a peace officer or a person who 

is responsible for the care or custody of a prisoner. 

Section 45-5-202 (2), MCA. A "weapon" is Itany instrument, article, 

or substance which, regardless of its primary function, is readily 

capable of being used to produce death or serious bodily injury." 

Section 45-2-101(71), MCA. In turn, llserious bodily injury1' is 

6 
defined as follows: 

I1Serious bodily injuryI1 means 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 serious mental 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 Itprotracted loss 

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. State v. 

Earl (Mont. 1990), 790 P.2d 464, 465, 47 St.Rep. 351, 353. The 

weapon produced burns on Engdahlls body, and Engdahl testified that 

she was burned by I1some sort of device that every time it touched 

me, it set off sparks. And it would drain me. I Id 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 some mental 

confusion. It may make an assailant unwilling to 

continue an attack, but he will 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 minutes 
afterward. 

NOTE: Any blast lasting over 1 second is likely to cause 

your assailant to fall. If you do not help them down, 

gravity may injure them. 

The instructions show that a stun gun is capable of immobilizing 

a person and could seriously injure a person who falls after being 

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), 227 Mont. 36, 736 P.2d 971, a pellet gun was 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 gun because stun guns "Imay be used by criminals to subdue and 

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 (quoting Local 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 a weapon. See United States v. Dishman (9th 

Cir. 1973), 486 F.2d 727, 730. Rejecting the defendant's argument 

that a stun gun merely incapacitates its victims temporarily and 

cannot inflict serious permanent harm, the court noted that a 

single stun gun could incapacitate twenty to forty people 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 ''a high-velocity pellet in the eye is certainly 

capable of inflicting 'serious bodily 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 of producing serious bodily 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 the 
jury 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 to make a timely objection 

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. 

Error may not be predicated upon the failure to give an instruction 

when the party alleging the error failed to offer the instruction. 

State v. 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 jeopardy by 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 the 
jury to conclude that the stun gun was a weapon, Evans1 argument 

is moot. 

In addition, Evans asserts that the District Court erred in 

imposing sentences for both aggravated burglary and 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 

one can carry out aggravated burglary without performing aggravated 

assault. State v. 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 the District Court err in failing to exclude from evidence 

the contents of Evans1 gym 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 

inventory of the contents of the gym bag demonstrated a substantial 

change of the evidence warranting that the gym bag and its contents 

be excluded from evidence. Since the bag contained a stun gun, the 

evidence was critical to the charges against Evans. 
Determination of whether a proper foundation has been laid for 

the introduction of exhibits into evidence rests with the trial 

court and its determination will not be overturned on 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, the prosecution must show that the exhibit is connected 

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 State acquired the evidence, no substantial change in the 

evidence occurred and that the evidence was in the State's 

continuous possession. Conrad, 785 P.2d at 189, 47 St.Rep. at 37. 

The exhibit was identified as the same bag that was seized 

from Evansf truck. 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 deficiency with respect to proper identification, 
such as a clerical error, goes to the weight of evidence and not 

its admissibility. State v. Grant (1986), 221 Mont. 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 the bag 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 that Kayser should not have been qualified as 

an expert pursuant to Rule 702, M.R.Evid., because his training and 

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. 

The determination that a witness is an expert is largely within 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. 

"The degree of a witness1 qualifications affects the weight 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-examination is the 

shield to guard against unwarranted opinion^.^^ Stewart v. Casey 

(1979), 182 Mont. 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 testimony was unsound. We hold that the District 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 enhancing 
Evans1 sentence for use of a weapon. 

Evans also alleges that the District Court abused its 

discretion in denying eligibility for parole for twenty-five years 

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 state prison for a term exceeding 1 

year, the court may 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 future crimes. The court also takes into account 

the testimony in this case which indicates a very 

thorough preparation for the crime on behalf of the 

defendant, an insidious invasion into the privacy of the 

victim, the tapping of her phone wires, the ordering of 

lingerie in her name deliverable to him, the careful 

analysis of the Montana Criminal Code to see what crimes 

he would be committing and what the consequences of those 

crimes would 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 the defendant out of the category of 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. State v. 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 

a nondangerous offender and for limiting his eligibility for parole 
to 25 years pursuant to 5 46-18-202(2), MCA. 

In exacting additional sentencing restrictions, such as sexual 

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 

court may impose any restriction or condition "reasonably related 

to the objectives of rehabilitation and the protection of society.I1 

The sentencing condition must correlate with either the 

rehabilitation of the offender or the protection of society. State 

v. Black (Mont. 1990), 798 P.2d 530, 534, 47 St.Rep. 1677, 1682. 

In Black the District Court found the court's additional sentencing 

condition of sexual offender treatment reasonable since the 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 sexual motive for the assault. In addition, during the 

sentencing hearing, a psychologist testified that Evans could be 

a 'Isexual psychopathl1 or "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 Evans1 sentence since it correlates 

with Evans1 need 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 to be conducted by the Sentence Review 

Division.111 State v. Almanza (1987), 229 Mont. 383, 386, 746 P.2d 

1089, 1090-91 (quoting State v. 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 Evans1 parents, who 

were potential witnesses, from the courtroom? 

Evans complains that the District Court should not have 

excluded his parents from the courtroom because it deprived him of 

their comfort and support during the trial. 

Sequestration of witnesses is a matter of discretion with the 

court. State v. Radi (1975), 168 Mont. 320, 326, 542 P.2d 1206, 

1210. Although Evans1 parents did not testify, they were listed 

as potential witnesses at the beginning of the trial. We hold that 

the District Court did not abuse its discretion in excluding Evans1 

parents from the courtroom since they were potential witnesses. 
Affirmed.