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 theThirteenthJudicial District, In and for the County of Yellowstone, TheHonorable RobertW. Holmstrom,Judgepresiding.

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, CountyAttorney; Charles A. Bradley, Deputy County Attorney, Billings, Montana

Filed: Submitted on Briefs: January 3, 1991 Decided: January 29, 1991 B

ClerkChief Justice J. A. Turnage delivered the Opinion of the Court. Defendant Emil Longneck was convicted of negligent homicide after a jury trial in theDistrict Court of theThirteenth Judicial District, Yellowstone County. He appeals. We affirm. The issue is whether the District Court properly enhanced Longneck's sentenceunder 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 amotor 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 theArcade 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 borrowmoney to continue drinking. They

were both described as intoxicated at that time. An acquaintance in whose basement defendant had been staying testified that thedefendantreturnedtohis 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 thepolice investigation,rags and pieces 2of clothing stained with blood consistent with Birdtail's were found in theyard and basement of thathouse. The front passenger side of defendant's car was heavily bloodstained. Thedefendant testified inhis ownbehalf. 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 togo along with this, Birdtailproduced 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 theuse of adeadly 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 oftheoffense, knowinglydisplayed, brandished, or otherwise used a firearm, destructive device, asdefined 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 lessthan 2 years or more than 10years, 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 statutemay be applied in a negligent homicide. Statev. 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 towardsmy door,and he told me towait. And he turned around and lookedback 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 Ithought he jumpedback at first, but Iguess 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 voluntarilygrabbed 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 inhis replybrief thathehasbeen instructed tobring to this Court's attentiondefendant'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 ina reply brief arenot properly before thisCourt andwill notbe considered

on appeal. Rule 23(c)

## ,M.R.App. P. ;Downsv. Smyk (1982)

## , 200Mont. 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: