No. 88-26 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsMARK MISNER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourteenth Judicial District, 

In and for the County of Musselshell, 

The Honorable Roy Rodeghiero, Judge presiding. II 

COUNSEL OF RECORD: 

For Appellant: 

Michael M. Morse, Billings, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

+ Robert F.W. Smith, Asst. Atty. General, Helena 

5 Peter W. LaPanne, County Attorney, Roundup, Montana 

0 

0 

It I " - 

Submitted on Briefs: Aug. 4, 1988 

Decided: October 6, 1988 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Mr. Misner appeals his conviction of felony assault and 

disorderly conduct in a jury trial in the District Court for 

the Fourteenth Judicial District, Musselshell County. We 

affirm. 

The issues are: 

1. Was there sufficient evidence to convict Mr. Misner 

of felony assault on Mr. Taber? 

2. Can Mr. Misner's actions properly give rise to 

verdicts of felony assault and disorderly conduct? 

At approximately 4:30 p.m. on March 31, 1987, Mr. Misner 

and his wife went to the Musselshell County Welfare Office in 

Roundup, Montana. Mrs. Taber, a secretary in the office, and 

her husband, the eligibility technician, both testified at 

trial that Mr. Misner had become angry and shouted on previous visits to the office. For example, Mr. Taber testified 

that: 

The earliest meeting in January did result in an 

argument. I again had tried to explain the criteria that we use to determine eligibility, the types 

of things that an applicant must present for verification or proof, if you will, of their 

circumstances. 

Q. How was there an argument; how did an argument 

develop? 

A. Things that are required of an individual when 

applying for programs, things like birth certificates, marriage licenses, things of that nature, 

Mr. Misner said he didn't have and couldn't get,, 

and what was he supposed to do if he couldn't get 

them? And he would get angry because I wasn't, you 

know, handing him money right then and there on the 

spot. And I don't control those things. That's 

policy, you know. And he left the office that day. 

He wanted my supervisor's name; he wanted to talk 

to somebody else. I can assume he did not approve 
or like what I was saying, and perhaps didn't 

believe what I was telling him; I don't know. I 

can only assume. I did give him the number to 

Lewistown. And as he left my office that day he 

was again volatile and angry, and you know, we had 

already had arguments in the past. I gave him the 

number, and as he walked out of the office he 

leaned up against the door and he said, "Well, I 

don' t know," he says, "I'm going to call 

Lewistown," but he says, "I'm going to get some 

help if I have to bust some heads around here.'' 

There isn't but one tech in this County, and that's 

my head. 

When he came into the welfare office on March 31, Mr. Misner 

complained to Mrs. Taber about being required to fill out 

certain forms as part of the process of applying for welfare 

benefits. She testified that: 

Well, after a time, you know, I couldn't calm him 

down any more, and he just kept yelling. So at 

this point Dan came out of his office, and he asked 

what the problem was. And Mark then continued to 

say the same things to Dan, yell and swear, and 

told him he was sick of everything, filling out 

papers. And Dan said, "Well, you don' t have to 

fill out the papers if you don't want to.'' He 

said, "I'm just doing my job." And he said, 

"Frankly, I don't need this abuse from you; every 

time you come in you are like this." So at that 

point Mark turned around and he stormed out the 

door and he stopped in the middle of the street and 

he lifted up his fist like this (indicating) and he 

said -- I understood it to mean he was yelling at 

Dan -- he said, "Come out here and we'll settle 

this right now." And I just kept standing there 

watching him. And so at this point Dan had turned 

around and gone back into his office, so he didn't 

see him do this. So I watched him walk across the 

street -- 

Mr. Taber testified as to what happened after he spoke to Mr. 

Misner : 

I just kind of shook my head. I was pretty rattl-ed. I've been through this same scenario with 
Mr. Misner many times. It keeps getting worse each 

time. Every contact he is displeased with what I 

have to say or what action has been taken. And I 

just kind of shook my head as he was going out the 

door, and he hollered back, "Why don't you come out 

here and we'll settle this right here and now." 

And I took that to mean he wanted to fight me out 

in the street. 

Q. Did you? 

A. Is that going to settle anything? No. I 

didn ' t . 

Q. Did you respond at all to his invitation? 

A. No. I didn't make any comments. I just walked 

back in my office, you know. . . . 

Mrs. Taber testified as to what happened next: 

[Wlhen he got to his pickup he opened the door all 

the way open, and with his left hand he flipped the 

seat forward, reached in with his right and just 

picked [a rifle] up like this (indicating). I 

couldn't tell if he had his finger on the trigger 

or not, but he just picked it up with one hand like 

this (indicating) and was yelling and shaking it. 

And at that point I said, "Oh, my God, he's got a 

gun." And I just stood there. 1 just stood there. 

Mr. Taber testified as follows: 

About that time I was standing in the office, my 

door was open, Kathy yelled "Oh, my God, he's got a 

gun. " I looked out there; I could see her desk -- 

her desk is in full view of mine. She was standing 

there kind of bolt upright, in a daze, and I didn't 

know what to do. I mean frankly I don't know how 

long I stood there. When she said, "Oh, my God, 

he's got a gun," I knew in my heart he had a gun. 

Q. How did that make you feel? 

A. I was scared. I hunt a lot. I know what guns 

can do. And I watch TV too. I'm scared. You 

know, I'm not in this job to get shot. And frankly 

I \7e heen scared for a long time, because I don't 
know when this guy is going to go off the deep end 

and do something. I've had too many arguments, 

every time he comes in the office. And now he's 

got a gun. I stood there in shock for a few seconds; I don't know how long. I walked out there, 

and at that time I saw just enough to see him 

closing the door, and he drove off. 

Mr. Misner was charged with two counts of felony assault. At trial, he presented the testimony of his wife and 

a third party that he had not waved a gun, but that he had 

banged a shovel against his truck before he got into it. The 

jury found him guilty of felony assault upon Mr. Taber and 

guilty of disorderly conduct, a lesser included offense, in 

relation to Mrs. Taber. Mr. Misner was sentenced to seven 

years in prison with the sentence suspended on seven conditions including 90 days in the county jail and staying away 

from the victims. He appeals. 

I 

Was there sufficient evidence to convict Mr. Misner of 

felony assault on Mr. Taber? 

"A conviction cannot he overturned when the evidence, 

viewed in the light most favorable to the prosecution would 

allow - any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt." State v. 

George (1983), 203 Mont. 124, 130, 660 P.2d 97, 100, citing 

Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 

2789, 61 L.Ed.2d 560, 573. Our review is therefore limited 

to a determination of whether any rational jury could have 

found the elements of felony assault. 

A person commits the offense of felony assault if he 

purposely or knowingly causes reasonable apprehension of 

serious bodily injury in another by use of a weapon. Section 

45-5-202 (2) (b) , MCA. The defense appears to be addressing 

its arguments to the element of reasonable apprehension of 
serious bodily injury. It refers to the absence of any 

evidence that Mr. Misner pointed the rifle at Mr. Taber or 

even at the welfare office. It also refers to the absence of 

any claim that Mr. Taber saw the rifle. Further, it empha-- 

sizes the physical distance between Mr. Misner and Mr. Taber 

at the time Mr. Misner waved the rifle. 

The essence of the defense's argument is that Mr. Taber 

neither saw nor came into close enough physical proximity to 

the gun. The defense would appear to ask us to require that 

Mr. Taber must step outside the welfare office and into the 

street in order for an apprehension of serious bodily injury 

to be reasonable. However, Mr. Taber did testify about his 

previous confrontations with Mr. Misner and that he was told 

by his wife that Mr. Misner, who had just left the office, 

had a gun outside the building. He unequivocally testified 

to his apprehension of serious bodily injury. We conclude 

that it was not necessary that Mr. Taber personally observe 

the gun being waved at him in order to experience reasonable 

apprehension of serious bodily injury. 

We hold that the jury in this case, as a rational trier 

of fact, could have found the presence of the essential 

elements of felony assault upon Mr. Taber, beyond a reasonable doubt. We therefore affirm the conviction on that 

charge. 

Can Mr. Misner's actions properly give rise to verdicts 

of felony assault and disorderly conduct? 

The defense asserts that one act on the part of Mr. 

Misner cannot give rise to the two divergent verdicts reached 

here. It does not develop this argument any further and the 

State points out that no objection was made to the instructions given at trial. We may assume that the question raised 
is how the acts could constitute felony assault as to Mr. 

Taber and only disorderly conduct as to Mrs. Taber. 

We conclude, based on Mrs. Taber's testimony, that a 

rational jury could have found that she did not have reasonable apprehension of serious bodily injury because she did 

not believe Mr. Misner's threats were aimed at her. Also 

based on that testimony, a rational jury could have found 

that Mr. Taber had reasonable apprehension of serious bodily 

injury because he reasonably believed Mr. Misner's threats 

from the street were aimed at him. Since we conclude that 

the evidence would allow the above findings by a rational 

jury, we affirm the convictions. 

Affirmed. 

We Concur: 

n Chief Justice 

Justices 
Mr. Chief Justice J. A. Turnage, dissenting: 

I agree with Mark Misner that there was insufficient 

evidence to convict him of felony assault upon Dan Taber 

under 5 45-5-202(2) (b), MCA. This section provides: 

(2) A person commits the offense of 

felony assault if he purposely or knowingly causes : 

(b) reasonable apprehension of serious 

bodily injury in another by use of a 

weapon. 

Dan Taber and his wife Kathy Taber on March 31, 1987, 

were employed at the Musselshell County Welfare office at 

Roundup, Montana. 

Misner was at this office seeking assistance and was 

verbally abusive to Kathy over filling out certain forms. 

Dan Taber came out of his office, separate from what was 

apparently the reception area, and told Misner he did not 

have to fill out the forms if he chose not to do so. Misner 

left, Dan Taber returned to his office and did not see any 

more of the conduct of Misner that resulted in his conviction 

of felony assault; but Kathy did, and therein lies the 

problem. 

Kathy testified that, out of the sight of Dan Taber, 

Misner stood in the middle of the street outside the welfare 

building and yelled, "come out here and we'll settle this 

right now." Dan Taber heard this. 

Kathy further testified that Misner then crossed the 

street to his truck, about thirty yards from the welfare 

building, took a .22 caliber rifle from it, and with one 

hand, the barrel point in the air, shook it in the direction 

of the welfare building. Misner never aimed or pointed the 
rifle at Kathy, Dan or the welfare building. Dan Taber never 

saw Misner with the rifle. Misner then drove away. 

Kathy Taber yelled, "oh, my God, he's got a gun." At 

that time Dan Taber came out of his office, after Misner had 

driven away. 

The jury found Misner not guilty of felony assault upon 

Kathy Taber and guilty only of disorderly conduct, a misdemeanor, as to his conduct towards her. It is logically 

inconsistent that the jury would find Misner not guilty of 

felony assault upon Kathy Taber, who was the only one to 

testify as an eyewitness to Misner's conduct with the rifle. 

If any one, under these facts, could have had a reasonable 

apprehension of serious bodily injury, it would have been 

Kathy Taber, not Dan Taber. 

The only testimony that the jury heard concerning a 

felony assault upon Dan Taber was the statement of Kathy that 

Misner had a gun. Dan Taber did not see the gun or that it 

was aimed at him, which it never was. The only reference to 

the gun was the statement by Kathy Taber that Misner had a 

gun. 

The record is insufficient as to evidence that Misner 

purposely or or knowingly caused reasonable apprehension in 

Dan Taber of serious bodily injury by use of a weapon. 

This evidence, when viewed in the light most favorable 

to the prosecution, would not allow a rational trier of fact 

to find the essential elements of the crime beyond a reasonable doubt. 

The determined and successful effort of the county 

attorney over objection to get before the jury testimony that 

Misner had received considerable assistance and money from 

the welfare office did little to encourage the jury to avoid 

bias toward Misner. 
Undoubtedly, Misner was less than a good witness in his 

own defense, leaving the jury with little reason to search 

their minds for compassion, but the result in this case is 

not how our justice system determines the basis of guilt or 

innocence of an accused. 

I would reverse Mark Misner's conviction of felony 

assau1.t . 

' Chief Justice 

We concur in the foregoing dissent: 

Justlces