No. 90-426 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

EMIL LONGNECK, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert W. Holmstrom, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Allen Beck, Esq., Billings, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General; James 

Yellowtail, Assistant Attorney General; Helena, 

Montana 

Harold Hanser, County Attorney; Charles A. 

Bradley, Deputy County Attorney, Billings, 

Montana 

Filed: 

Submitted on Briefs: January 3, 1991 

Decided: January 29, 1991 B 

Clerk 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Defendant Emil Longneck was convicted of negligent homicide 

after a jury trial in the District Court of the Thirteenth Judicial 

District, Yellowstone County. He appeals. We affirm. 

The issue is whether the District Court properly enhanced 

Longneck's sentence under 1 46-18-221, MCA, for the use of a gun. 

On November 6, 1989, the body of Winchell Birdtail was found 

lying in an alley on the south side of Billings, Montana. He had 

been shot once in the head. His body had apparently been dragged 

from a motor vehicle and placed in the alley. An autopsy revealed 

that he had died in the late evening hours of November 5 or early 

in the morning of November 6, 1989. 

Witnesses at trial testified that Birdtail and the defendant 

left the Arcade Bar in Billings at about 8:00 p.m., November 5, in 

defendant's car. One witness testified that several days earlier, 

defendant had stated that he was trying to obtain a gun. Another 

testified that defendant told her he had a gun. After leaving the 

Arcade Bar, defendant and Birdtail visited the homes of several 

acquaintances, trying to borrow money to continue drinking. They 

were both described as intoxicated at that time. 

An acquaintance in whose basement defendant had been staying 

testified that the defendant returned to his home alone about 10: 00 

or 10:30 p.m. The witness observed defendant wetting a rag on an 

outdoor faucet and then "mess[ing] aroundw in the front seat of 

defendant's car. ~uring the police investigation, rags and pieces 

2 
of clothing stained with blood consistent with Birdtail's were 

found in the yard and basement of that house. The front passenger 

side of defendant's car was heavily bloodstained. 

The defendant testified in his own behalf. He stated that he 

and Birdtail were sitting in the car after their last attempt to 

borrow money failed, and Birdtail indicated that he wanted to 

commit a robbery to get money. He testified that when he refused 

to go along with this, Birdtail produced a gun, they struggled over 

the gun, and Birdtail was shot when it went off. Defendant 

testified that, "scaredfnl he had put Birdtail's body in an alley. 

He testified that he did not know what had happened to the gun 

because he had blacked out after the shooting. 

Defendant was charged with deliberate homicide. The jury 

found him guilty of the lesser included offense of negligent 

homicide. He was sentenced to ten years in prison plus an 

additional ten years, to run consecutively, for the use of a deadly 

weapon in the commission of the offense, under 5 46-18-221, MCA. 

Montana's weapon enhancement statute, 5 46-18-221, MCA, 

provides that 

[a] person who has been found guilty of any 

offense and who, while engaged in the 

commission of the offense, knowingly displayed, 

brandished, or otherwise used a firearm, 

destructive device, as defined in 45-8-332 (1) , or other dangerous weapon shall, in addition 

to the punishment provided for the commission 

of such offense be sentenced to a term of 

imprisonment in the state prison of not less 
than 2 years or more than 10 years, except as 

provided in 46-18-222. 

Defendant argues that the "knowingly" state of mind required under 

S 46-18-221, MCA, has not been established and that application of 

the weapon enhancement statute is therefore improper. 

The weapon enhancement statute may be applied in a negligent 

homicide. State v. Redfern (1987), 228 Mont. 311, 741 P.2d 1339; 

State v. Stroud (1984), 210 Mont. 58, 683 P.2d 459; State v. 

Hubbard (1982), 200 Mont. 106, 649 P.2d 1331. By its own terms, 

the enhancement statute applies to "any offense.'' 

The defendant's testimony concerning the events surrounding 

the shooting was that 

I started back towards my door, and he told me 

to wait. And he turned around and looked back 

towards the back, and that's when I grabbed 

for the gun. 

Q. Okay. his was while you were parked 

someplace on the south side? 

A. Yes. 

Q. All right. When you grabbed for the gun, 

will you tell the jury what happened? 

A. We struggled over it. 

Q. Please continue. 

A. And it went off, and he flew back - - or 

I thought he jumped back at first, but I guess 

he flew back from the bullet wound. The 

bullet hit him. 

The defendant's assertion that the shooting of Birdtail was 

accidental does not negate his admission that he voluntarily 
grabbed for the gun being held by Birdtail. We hold that, under 

the facts of this case, defendant's voluntary act of grabbing for 

the gun is sufficient to meet the wknowinglyll requirement of the 

enhancement statute. 

Defendant's counsel states in his reply brief that he has been 

instructed to bring to this Court's attention defendant's argument 

that the evidence is insufficient to support his conviction. 

Attached to the reply brief is a typewritten sheet containing 

defendant's argument on that issue. Issues first raised in a reply 

brief are not properly before this Court and will not be considered 

on appeal. Rule 23 (c) , M.R.App. P. ; Downs v. Smyk (1982) , 200 Mont. 

334, 336-37, 651 P.2d 1238, 1239, aff'd. after remand, 211 Mont. 

374, 685 P.2d 347; Denend v. Bradford Roofing & Insulation (1985), 

218 Mont. 505, 509, 710 P.2d 61, 63-64. 

Affirmed. 

/ A / 

Chief Justice 

We concur: