NO. 95-335

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

STATE OF MONTANA,

Plaintiff and Respondent,

v.

DAVID B. LAMBERT,

Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-First Judicial District

In and for the County of Ravalli,

The Honorable Jeffrey Langton, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, Appellate Defender, Helena,

Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Cregq W.

Couqhlin, Assistant Attorney General, Helena,

Montana; George Corn,. Ravalli County Attorney,

Hamilton, Montana

Filed:

Heard: September 19, 1996

Submitted: September 19, 1996

Decided:;.; December 16, 1996

,.~2~,.',
Justice William E. Hunt, Sr. delivered the Opinion of the Court

Following a jury trial in the Twenty-first Judicial District

court, Ravalli County, David B. Lambert (Lambert) was found guilty

of criminal endangerment, a felony, and was sentenced to a term of

years at the Montana State Prison. Lambert appealed.

We reverse and remand with instructions.

We address the following issue:

Did the District Court apply an incorrect mental state element

to the offense of criminal endangerment?

FACTS

On August 20, 1994, Christine Peterson, along with her three

children and a friend of theirs, was driving south on U.S. Highway

93 toward Darby, Montana, Peterson's hometown. The group had just

spent the day in Missoula shopping for school clothes. As they

approached the town of Stevensville, travelling at about 50 or 55

miles per hour, Ms. Peterson saw a car pulling out of a roadside

parking lot to her left. That car, driven by Lambert, proceeded

across the highway immediately ahead of Ms. Peterson's car, and Ms.

Peterson applied her brakes, expecting to collide with the middle

or rear side of Lambert's car. Instead, Lambert turned his car

toward Ms. Peterson's car; his car was now facing north in Ms.

Peterson's southbound lane, and the two vehicles collided head-on.

Witnesses at the scene immediately after the collision

occurred noted that Lambert smelled and acted as if he had been

drinking. A Montana highway patrol officer, after questioning

Lambert and conducting a field sobriety test, determined that

2
Lambert had indeed been drinking and suspected that he was

intoxicated. Lambert was unable to provide the officer a driver's

license or proof of auto insurance, and the officer soon discovered

that Lambert's driving privileges had previously been revoked.

Lambert was ultimately charged with the following offenses:

criminal endangerment; DUI; driving while license suspended or

revoked; failure to have auto insurance; and failure to use a

seatbelt.

Lambert proceeded to trial on the charges of criminal

endangerment and DUI, having previously entered guilty pleas to the

other three charges. After the State presented its case-in-chief,

Lambert moved for an acquittal of the criminal endangerment charge,

claiming that the State had not proven beyond a reasonable doubt

that Lambert had acted "knowingly," the requisite mental state for

the offense of criminal endangerment. The court denied Lambert's

motion, after first hearing arguments from Lambert and the State

regarding which definition of "knowingly" applied to criminal

endangerment.

After the defense rested without calling any witnesses, the

parties and the court settled jury instructions. The court decided

t o instruct the jury on three out of four definitions of

"knowingly" contained in a pattern jury instruction, and to

instruct the jury that Lambert did not need to intend the result

that occurred in order to have acted with the requisite mental

state. The court also decided to instruct the jury that a person

in an intoxicated condition is criminally responsible for his

3
conduct, and that an intoxicated condition could not be taken into

account in determining the existence of a mental state which is an

element of the offense. Lambert objected to these instructions.

The jury returned a verdict finding Lambert guilty of criminal

endangerment, but did not return a verdict on the 'DUI charge.

Lambert was subsequently sentenced to a term of years at the

Montana State Prison. This appeal followed.

DISCUSSION

Did the District Court apply an incorrect mental state element

to the offense of criminal endangerment?

Lambert argues that the District Court misinterpreted the

meaning and application of "knowingly," the mental state element of

the offense of criminal endangerment. We review a district court's

interpretation or application of the law to determine if that

interpretation or application was correct. State v. Christensen

(1994), 265 Mont. 374, 877 P.2d 468.

Section 45-5-207(l), MCA, provides, in pertinent part, that a

person commits the offense of criminal endangerment if he

"knowingly engages in conduct that creates a substantial risk of

death or serious bodily injury to another." Section 45-2-101(34),

MCA, provides multiple definitions of'"knowingly":

[A] person acts knowingly with respect to conduct or to

a circumstance described by a statute defining an offense

when the person is aware of the person's own conduct or

that the circumstance exists. A person acts knowingly

with respect to the result of conduct described by a

statute defining an offense when the person is aware that

it is highly probable that the result will be caused by

the person's conduct. When knowledge of the existence of

a particular fact is an element of an offense, knowledge

4
is established if a person is aware of a high probability

of its existence.

In denying Lambert's motion for acquittal, the court determined

that "knowingly," the mental state 'element of the offense of

criminal endangerment, could be established by evidence showing

that a defendant was aware of his conduct. The court decided that

the State had presented sufficient evidence on this issue for the

case to go to the jury. Later, when settling jury instructions,

the court determined that it would instruct the jury as to three

distinct definitions of "knowingly." Instruction No. 12, given to

the jury, reads as follows:

Knowingly

A person acts knowingly:

(1) when he is aware of his conduct or

(2) when he is aware under.the circumstances that

his conduct constitutes a crime or

(3) when he is aware there exists the high

probability that his conduct will cause a

specific result. (Emphasis added.)

Lambert argues that the court applied an incorrect mental

state element to the offense of criminal endangerment, and that the

court, in relying on this mistaken interpretation of the law, erred

in denying Lambert's motion for an acquittal and erred in

instructing the jury with respect to the applicable definition of

"knowingly." We will review the court's interpretation of the law,

and then determine whether it was proper for the court to rely on

5
this interpretation of the law in denying Lambert's motion for

acquittal and in instructing the jury.

Lambert contends that the different definitions of "knowingly"

found in § 45-Z-101(34), MCA, distinguish between different

elements of criminal offenses, and that therefore "the statute

defining the offense" governs which definition of "knowingly"

applies. Lambert contends that the offense of criminal

endangerment is defined in terms of the result of conduct. Under

that construction, Lambert argues that in order to prove the

"knowingly" element of criminal endangerment beyond a reasonable

doubt; the State must establish that an accused was aware of the

high probability that his conduct would cause a substantial risk of

death or serious bodily injury to another. Lambert contends that

we reached this same conclusion in State v. Crisp (19911, 249 Mont.

199, 814 P.2d 981.

In Crisp, we rejected a constitutional challenge to the

criminal endangerment statute. The defendant in that case alleged

that the statute was unconstitutionally vague because it did not

require a specific intent to cause the substantial risk. We noted

that the appropriate mental state was "knowingly," set out the

definitions of "knowingly" provided in § 45-2-101(33), MCA (these

same definitions of "knowingly" are now found in § 45-2-101(34),

MCA (1995)), and concluded that "[alccordingly, a defendant commits

the crime of criminal endangerment when he is aware that there is

a high probability that his conduct may cause a substantial risk of

death or serious bodily injury to another." Crisp, 814 P.2d at 983.

6
The State argues that our holding in Crisp does not imply that

there can be only one definition of "knowingly" applied to the

offense of criminal endangerment. Put another way, the State

argues that in defining criminal endangerment as we did in Crisp,

we were merely asserting one of a number of different definitions

of "knowingly" that could apply. The State also contends that

Crisp is not controlling here because the issue of which definition

of "knowingly" applied to criminal endangerment was not before us

in that case. In any event, the State argues that the definition

of "knowingly" that we used in Criso was incorrect; the language of

the criminal endangerment statute plainly provides that "knowingly"

refers to a defendant's conduct, not the result of his conduct.

While we agree with the State that our holding in Crisp does

not directly control the disposition of the matter before us, we

cannot agree that in Crisu we applied the wrong definition of

"knowingly" to the offense of criminal.endangerment. Moreover, we

cannot agree that any one of the definitions of "knowinglyl' found

in 5 45-2-101(34), MCA, is applicable to the offense of criminal

endangerment. Finally, agreeing as we do that the issue of what

definition of "knowingly" applies to this offense has not

previously been before this Court does not require us to ignore how

we have consistently articulated the elements of criminal

endangerment. See Criso, 814 P.2d at 983; State v. Smaage (1996),

276 Mont. 94, 98, 915 P.2d 192, 195. We find Lambert's arguments

persuasive, and dispose of this issue in his favor.

7.
Our reading of the criminal endangerment statute is that it

emphasizes result over conduct. The portion of the statute that we

are reviewing here does not particularize the conduct that, if

engaged in, results in the commission of the offense. Rather, a

person may engage in a wide variety of conduct and still commit the

offense of criminal endangerment, provided that the conduct creates

a substantial risk of death or serious bodily harm. It is the

avoidance of this singular result, the risk of death or serious

harm, that the law attempts to maintain.

There being no particularized conduct which gives rise to

criminal endangerment, applying to that offense's mental element

the definition of "knowingly" that an accused need only be aware of

his conduct is incorrect. It is the appreciation of the probable

risks to others posed by one's conduct that creates culpability for

criminal endangerment; were it otherwise, where culpability could

lie for mere appreciation of one's conduct, such as driving a car

or shooting a hunting rifle, some very unfair results could follow.

In our view, the relevant statutory scheme recognizes and

addresses these concerns. As Lambert points out, 5 45-2-101(34),

MCA, provides on the one hand that "a. person acts knowingly with

respect to conduct . . . described by a statute defining an offense

when the person is aware of the person's own conduct . . ..I'. and

provides on the other hand that "[a] person acts knowingly with

respect to the result of conduct described by a statute defining an

offense when the person is aware that it is highly probable that

the result will be caused by the person's conduct." (Emphasis
added. ) Conduct is not described by § 45-5-207(l), MCA, but the

result of conduct is: "a substantial risk of death or serious

bodily harm."

In addition, § 45-2-103(4), MCA, explains that "[iIf the

statute defining an offense prescribes a particular mental state

with respect to the offense as a whole without distinguishing among

the elements of the offense, the prescribed mental state applies to

each element." The criminal endangerment statute provides that the

mental state "knowingly" applies, without apparent distinction, to

the elements (1) engage in conduct (2) that creates a substantial

risk of death or serious bodily harm to another. According to 5

45-2-103 (41, MCA, "knowingly" applies to both conduct and the

result of that conduct.

W e conclude that the "knowingly" element of criminal

endangerment contemplates a defendant's awareness of the high

probability that the conduct in which he is engaging, whatever that

conduct may be, will cause a substantial risk of death or serious

bodily injury to another.

We hold that the District Court incorrectly applied as the

mental element of the offense of criminal endangerment the

definition of "knowingly" that a defendant need only be aware of

his conduct. We also hold when the District Court relied on this

misinterpretation of the law in denying Lambert's motion for

acquittal and in instructing the jury, the court committed

reversible error. The general effect of the court's

misinterpretation, manifest in the two rulings complained of, was

9
to alter the State's burden of proving beyond a reasonable doubt

the elements of the offense: to prove that a defendant was aware of

his conduct is one thing; to prove that he was aware of the high

probability of the risks posed by his conduct is quite another.

The particular effect of the court's interpretation is a violation

of due process rights as provided by Article II, Section 17 of the

Montana Constitution.

We remand this case to the District Court to reconsider the

motion for acquittal under the standard set forth in this opinion.

If the evidence presented at trial was'not sufficient to establish

the element that the defendant was aware of the high probability of

the risk posed by his conduct, the motion for acquittal must be

granted. If the court finds that the State's evidence was

sufficient to withstand the motion for acquittal, then the court

must grant a new trial because of the erroneous jury instruction.

We reverse and remand for reconsideration of appellant's motion for

acquittal. If the motion for acquittal is denied then a new trial

must be granted.

Reversed and remanded with instructions.

We Concur:

Chief Justice
Justices

1 1
Justice Terry N. Trieweiler specially concurring.

I concur with the majority opinion. I write in response to

the dissent which, in my opinion, ignores the plain language of the

statute we have been asked to construe, relies on authorities which

are not remotely related to the issue we have been asked to decide,

and would treat simple negligence as a felony punishable by ten

years in prison and a $50,000 fine.

Although the dissent correctly states that when we interpret

a statute we should neither insert what has been omitted nor omit

what has been inserted, the dissent repeatedly omits critical

language from § 45-5-207, MCA, when it discusses that statute. The

criminal endangerment statute does not, as the dissent suggests,

simply punish someone who "knowingly engages in conduct." It

punishes someone who "knowingly engages in conduct that creates a

substantial risk of death or serious bodily injury." Any

straightforward analysis of what "knowingly" refers to in the

criminal endangerment statute must include the qualitative

description of the kind of conduct that is engaged in. The dissent

repeatedly ignores that critical language.

For example, it is clear, based on the plain language of the

statute, that it would not be sufficient to prove that a person

knowingly drove in a northerly direction in a southbound lane if he

or she assumed that the road was closed for construction. The

statute, by its plain terms, would only punish that type of conduct

if a person drove in a northerly direction in a southbound lane

knowing that southbound traffic might also be using that lane. Any

12
other interpretation is nonsensical. It is not knowingly engaging

in conduct that is prohibited; it is knowingly engaging in a

specific type of conduct that is prohibited. It is impossible to

grammatically separate "knowingly" from the specific danger

presented by a person's conduct.

The dissent goes to great lengths to point out that based on

the facts in this case there was, obviously, evidence that Lambert

was aware that his conduct would create a substantial risk of harm

to others. I agree. However, it is impossible for us to say that

his conviction was based on a finding by the jury that he was aware

that his conduct presented a substantial risk of harm to others

because the jury was never properly advised that that kind of

finding had to be the basis for its verdict. Therefore, it makes

no difference what a rational trier of fact could have found based

on the evidence in this case, because we do not know what this jury

would have found had it been correctly instructed regarding the law

applicable to this case.

None of the cases cited by the dissent involved an issue

regarding the necessary mental state for the crime of criminal

endangerment. None of them involved a jury instruction related to

the necessary mental state for the crime of criminal endangerment.

At most, they discuss facts, and conclude that those facts could or

could not suffice to support a conviction for the crime.

Therefore, I see no point to the dissent's reliance on them as

authority for the issue with which we are concerned in this case.

13
In this case, there is evidence that the defendant, after

consuming alcoholic beverages, entered the highway in the wrong

direction, knowing that to do so would create a substantial risk of

harm to other motorists on the highway. However, based on the

argument of the dissent, the same conduct could be punished as a

felony under circumstances which would have led no one to believe

that it was dangerous. For example, assume that the same stretch

of highway was under construction and was closed off to through

traffic at points north and south of Lambert's point of entry.

Assume that instead of Lambert entering the highway at that

location, a vehicle driven by an employee of the State Department

of Transportation turned onto the highway, proceeding in a

northerly direction in the southbound lane, but believing that the

highway barricades would be honored and no one else would be using

the highway. Further assume that it was Lambert proceeding in the

southbound lane, but that he had ignored the construction signs,

and therefore, collided with the Transportation Department vehicle.

Based on the dissent's interpretation of the criminal endangerment

statute, it would be the driver of the Transportation Department

vehicle who committed a felony punishable by ten years in prison

and a $50,000 fine because the driver of that vehicle knowingly

engaged in the same conduct that Lambert engaged in in this case.

The fact that the driver of that vehicle had every reasonable

expectation that what he did was safe would make no difference

under the law.

14
The dissent is based on a grammatically incorrect reading of

the statute, finds no support in the prior decisions of this Court,

and would lead to absurd results.

For these reasons, I concur with the majority opinion.

15
Justice W. William Leaphart, specially concurring.

I concur in the opinion of the Court and write separately to

address what I see as the fallacy in the reasoning of the dissent.

At issue is the question of which definition of "knowingly" is

appropriate in the context of a charge of criminal endangerment.

Knowingly" is defined in § 45-2-101(33), MCA (1993), as follows:

[A] person acts knowingly with respect to conduct or to

a circumstance described by a statute defining an offense

when the person is aware of the person's own conduct or

that the circumstance exists. A person acts knowingly

with respect to the result of conduct described by a

statute defining an offense when the person is aware that

it is highly probable that the result will be caused by

the person's conduct. When knowledge of the existence of

a particular fact is an element of an offense, knowledge

is established if a person is aware of a high probability

of its existence. Equivalent terms, such as "knowing" or

"with knowledge", have the same meaning.

The trial court used the smorgasbord approach and instructed

the jury such that it could employ any one of the definitions

contained in 5 45-2-101(33), MCA (1993). Court's instruction #12

read as follows:

A person acts knowingly:

(1) when he is aware of his conduct or

(2) when he is aware under the circumstances that his

conduct constitutes a crime or

(3) when he is aware there exists the high probability

that his conduct will cause a specific result.

In rejecting this approach, the majority has held that, in essence,

the court cannot give the jury the choice of which definition

applies to the crime charged; rather, the statute defining the

crime dictates which definition of l'knowingly" is appropriate.

The first of the three definitions presented to this jury

16
stated: "A person acts knowingly when he is aware of his conduct."

Although some crimes only require that a person engage in conduct,

without regard to any result, criminal endangerment is not such a

crime. For example the charge of issuing a bad check, § 45-S316 (1), MCA, only requires:

(1) A person commits the offense of issuing a bad

check when the person issues or delivers a check or other

order upon a real or fictitious depository for the

payment of money knowing that it will not be paid by the

depository.

In a trial for issuing a bad check, it would be appropriate to

instruct the jury that a person acts "knowingly" when he is aware

of his conduct, that is, when he is aware that the check will not

be paid by a depository. The crime, by definition, focuses

entirely upon conduct. The crime is complete upon passing of the

bad check regardless of any result. That is, it matters not

whether anyone attempts to negotiate the check or whether anyone is

defrauded.

The § 45-2-101(33), MCA (1993), definitions of "knowingly"

draw a distinction between (1) statutes which do nothing more than

proscribe conduct (without regard to result), and (2) statutes

which not only describe conduct, but also focus on the result of

that conduct.

Justice Nelson in his dissent contends that the crime of

criminal endangerment is similar to a bad check charge in that it

does not require that the defendant act knowingly with respect to

the result of the conduct. Specifically, he reviews numerous

decisions of this Court involving criminal endangerment and

concludes that:

17
In each case we have focused on conduct which creates a

substantial risk as that which is proscribed by a

statute. The result of that conduct was

irrelevant in our prior decisions.

wholly

It was irrelevant

that no particular victim was identified as being put at

risk by the conduct at issue; it was irrelevant that no

one was actually injured by the conduct at issue.

Rather, we focused entirely on the risk-creating nature

of each defendant's conduct.

For example, Justice Nelson cites State v. Smaage (1996), 276

Mont. 94, 915 P.2d 192, which involved a defendant with eight prior

DUIs who was convicted of criminal endangerment. While drunk,

Smaage swerved down a city street during early morning traffic.

Smaase, 915 P.2d at 193. Smaage's conduct was the driving while

drunk. However, in order to convict him of criminal endangerment,

the State had to do more than prove that he was aware that there

was a high probability of his conduct, that is, prove more than

that he knowingly drove his car while drunk. As Justice Nelson

points out, the State did not have to prove that his conduct

actually resulted in bodily injury. It did, however, have to prove

that he was aware that there was a high probability that his

driving, under those circumstances, created a specific result, that

is, a substantial risk of death or serious bodily injury. Smaase,

915 P.2d at 194.

Justice Nelson seems to read conduct as including the risk

inherent in the conduct; that the conduct and the result are one in

the same. In contrast, the Court's decision is premised on the

understanding that the risk (the endangerment) is the result of the

conduct. This dichotomy is necessary in order to maintain the

distinction drawn by § 45-2-101(33), MCA (1993), between offenses

which proscribe conduct (e.g., issuing bad checks) without regard

18
to result from offenses which proscribe conduct which creates a

specific result. For example, the crime of unlawful restraint, §

45-5-301, MCA, defines the offense as follows:

(1) A person commits the offense of unlawful

restraint if he knowingly or purposely and without lawful

authority restrains another so as to interfere

substantially with his liberty.

The conduct involved is the restraining of another individual. The

result is the substantial interference with liberty.

Justice Nelson apparently agrees that the defendant must be

aware of the risk factor. The difference is that he sees the risk

factor as being part and parcel of the conduct, rather than a

"result" of the conduct. Although this may not appear to be a

meaningful distinction, in the context of § 45-2-101(33), MCA

(1993), there is a substantive difference. By way of example,

assume that three men are standing in a field and each has a rifle.

Jones fires to the west where there is nothing but open field.

Smith fires to the south in the direction of a grove of trees.

Unbeknownst to Smith, there is a house in the grove of trees.

Johnson fires to the north where, in plain view, there is a cluster

of houses. Each of these men knowingly engaged in the same

conduct, i.e., shooting a rifle. However, the legal consequence of

any one man's conduct will vary depending upon his awareness.

Jones' conduct did not create a risk of harm. Smith's conduct did

create a risk of harm but he was unaware of that risk. Johnson's

conduct resulted in a risk of harm of which he should have been

aware.

Under the instruction given in the present case, a jury would

most likely find that each man was aware of his conduct (shooting

19
the rifle) The first definition of "knowingly" would therefore be

satisfied. Thus, Smith could be found guilty of criminal

endangerment even though he had no "knowledge" of the risk. Such

a result does not jibe with the definition of criminal

endangerment. Rather, in order to convict of criminal

endangerment, the State must prove that the defendant was aware

that it was highly probable that the result (the risk) would be

caused by the person's conduct.

In deliberating a charge of criminal endangerment, the jury

should not be given the option of definition #l: "A person acts

knowingly when he is aware of his conduct." This definition does

not bring the element of risk (endangerment) into the definition.

It does not state that risk is considered to be inherent in the

conduct nor does it state (like definition #3) that he must be

aware of the high probability of a result. Were the jury to

convict on the basis of definition #l, the State would be relieved

of its burden of proving that, despite being aware of the risks,

the defendant proceeded to engage in the conduct in question. In

the absence of such proof, negligent endangerment and criminal

endangerment become indistinguishable.

Section 45-2-101(33), MCA (1993), sets forth separate

definitions of knowingly. In determining which definition is

appropriate, the court must look to the requirements of the offense

charged. The court cannot simply instruct the jury, "Here are 3

definitions, take your pick." Criminal endangerment requires that

the conduct "create" a substantial risk. "Create" means to cause

to exist, give rise to or produce. THE AMERICAN HERITAGE DICTIONARY OF

20
THE ENGLISH LANGUAGE, 438 (3d ed. 1992). In other words, create means

to "result in." The conduct in question must "create" or "result

in" a risk. A jury instruction (definition #l) which focuses

solely on conduct rather than conduct and result, simply does not

apply to this offense.

Justice Karla M. Gray joins in the foregoing special concurrence.

2 1
Justice James C. Nelson dissenting.

I would hold that the District Court properly instructed the

jury as to the mental state element for the offense of criminal

endangerment, and, accordingly, I would affirm.

Section 45-5-207, MCA,l provides in pertinent part:

(1) A person who knowingly engages in conduct that

creates a substantial risk of death or serious bodily

injury to another commits the offense of criminal

endangerment. This conduct includes but is not limited

to knowingly placing in a tree, log, or any other wood

any steel, iron, ceramic, or other substance for the

purpose of damaging a saw or other wood harvesting,

processing, or manufacturing equipment.

In interpreting a statute, we must first look to the words

used and, if the language and meaning are plain, unambiguous,

direct and certain, we simply ascertain and declare what is in

terms or in substance contained therein, neither inserting what has

been omitted nor omitting what has been inserted. See § l-2-101,

MCA; State v. Gould (19951, 273 Mont.'207, 219, 902 P.2d 532, 540

(citing State v. Christensen (1994), 265 Mont. 374, 376, 877 P.2d

468, 469 and Clarke v. Massey (1995), 271 Mont. 412, 416, 897 P.2d

1085, 1088.)

While the majority holds that 5 45-5-207(l), MCA, defines the

mental state element of the offense of criminal endangerment, and,

hence, the State's burden of proof, in terms of the result of

conduct, I conclude that, to the contrary, the plain language of

the statute clearly and unambiguously requires that the State

'Unless otherwise stated, the 1993 version of the Montana Code

is cited herein as that was the version in effect when Lambert

committed the offenses with which he was charged.

22
simply prove that the defendant knowingly engaged in risk-creating

conduct, without the necessity of also proving his or her knowledge

of the probability that this conduct would cause a result.

Moreover, I believe that our prior case law mandates this

interpretation of the statute and does not at all support the

majority's view.

The operative language in the statute is "knowingly engages in

conduct that creates a substantial risk of death or serious bodily

injury to another. .'I The language chosen by the legislature

makes unlawful a particular form of conduct--i.e., that which

creates a substantial risk of death or serious bodily injury in

another. Whether this conduct actually causes the result--death

or serious bodily injury--is immaterial. The term "knowingly"

modifies the term "conduct" and specifies the mental state required

of the defendant during the time that he or she engages in this

conduct if it is to be chargeable as the offense of criminal

endangerment. It is the conduct which must create the risk, and it

is knowledge of or awareness of this conduct that makes engaging in

such conduct a criminal offense. So long as the defendant

"knowingly" engages in the conduct and so long as that conduct is

risk-creating, then, under the statute, it is irrelevant that the

defendant also "know" or be aware that death or serious bodily

injury will or will likely be caused by that conduct.

In short, there is nothing in the plain language of the

statute that supports the majority's interpretation. Rather, the

majority has effectively rearranged the wording of § 45-5-207(l),

23
MCA, and, hence, its statutory elements. To support the majority's

conclusion, the statute would have to provide: "A person who

engages in conduct knowing that it creates a substantial risk . .

.'I or "A person who knowingly causes a substantial risk . . . .I)

That is not how the statute is written, however. Rather, the

mental state element of criminal endangerment focuses on the

defendant's knowledge of his or her risk-creating conduct and not

on his or her knowledge of the result of such conduct.

Consequently, so long as the State demonstrated that Lambert's

conduct was risk-creating and so long as the State proved that he

"knowingly" engaged in this conduct then the State met its burden

of proof and Lambert was properly convicted of criminal

endangerment. In making this determination, it is first necessary

to focus on the conduct at issue.

In this case, the conduct in which Lambert engaged and which

created a substantial risk of death or serious bodily injury to

others was his driving while grossly intoxicated into the oncoming

lane of traffic while his driving privileges were revoked. Neither

causation nor result--his causing a serious automobile accident

resulting in personal injuries to other persons--are elements of

the offense of criminal endangerment; rather it is his riskcreating conduct which the legislature proscribed.

For this risk-creating conduct to be chargeable as the offense

of criminal endangerment, however, the statute also requires that

it must be engaged in "knowingly.'P Generally, this mental state

can be proven in alternative ways under Montana's criminal code:

24
[Al person acts knowingly with respect to conduct or to

a circumstance described by a statute defining an offense

when the person is aware of the person's own conduct or

that the circumstance exists. A person acts knowingly

with respect to the result of conduct described by a

statute defining an offense when the person is aware that

it is highly probable that the result will be caused by

the person's conduct. When knowledge of the existence of

a particular fact is an element of an offense, knowledge

is established if a person is aware of a high probability

of its existence. [Emphasis added.1

Section 45-Z-101(33), MCA.

In this case, the trial court instructed the jury on this

mental state element as follows:

A person acts knowingly:

(1) when he is aware of his conduct or

(2) when he is aware under the circumstances that his

conduct constitutes a crime or

(3) when he is aware there exists the high probability

that his conduct will cause a specific result.

Court's Instruction No. 12 (emphasis added).

Lambert objects only to definition (11, apparently conceding

the applicability of definitions (2) and (3). The correctness of

that concession aside, it is clear that definition (1) from

Instruction No. 12 is included within the statutory definition of

§ 45-2-101(33), MCA, and based upon the statutory definition of

criminal endangerment it is also clear that definition (1) is the

mental state element applicable to this offense.

As pointed out above, the "conduct" proscribed by the statute

defining criminal endangerment is that which "creates a substantial

risk of death or serious bodily injuryto another." Section 45-5-

207(1), MCA. The State is required to prove that the defendant

25
engaged in this conduct "knowingly." It does that under 5 45-2-

101(33), MCA, by demonstrating that the defendant was "aware of his

conduct"--i.e., that the defendant was aware that he was conducting

himself in such a fashion so as to create a substantial risk of

death or serious bodily injury in another.

While a person's state of mind can rarely be proven by direct

evidence, the existence of a mental state may be inferred from the

acts of the accused and the facts and circumstances connected with

the offense, § 45-Z-103(3), MCA, and may b e demonstrated

circumstantially. State v. Brogan (1993), 261 Mont. 79, 89, 862

P.2d 19, 25-26.

The evidence here was that Lambert drank to the point of being

heavily intoxicated and that, with his driving privileges revoked,

he, nonetheless, drove his vehicle from the bar parking lot into

the oncoming lane of traffic and collided with the Petersen

automobile. At the accident scene, to the police, emergency

responders and everyone else present, Lambert gave every appearance

and physical manifestation of being grossly intoxicated; he was

belligerent; he refused medical treatment; he was unconcerned about

the carnage he had caused; he acted inappropriately in view of the

seriousness of the situation; and there were full and empty bottles

of beer in his car along with a partially consumed bottle of

whiskey.

Lambert was obviously aware that he had been drinking--he

indicated that to the investigating officer, although he minimized

the amount he had drunk. Moreover, he was obviously aware that he

26
was driving--he first stated that he did not see the Peterson car

and then attempted to lay fault on Christine Petersen. When asked

what happened, Lambert said:

Pulled up, turned out, and they were right there.

I thought they were going the other way. They were there

just like right now, so either I didn't see them, or they

were going way too fast.

Under such circumstances any rational trier of fact could

have, and likely would have, concluded that Lambert was "aware of

his conduct"--i.e., that his conduct was such to create a

substantial risk of death or serious bodily injury to another--and

that he, therefore, acted "knowingly." It was irrelevant that

Lambert may not have intended to cause the accident or that he even

intended to put any one in general or in particular at risk. It

was sufficient that his conduct--driving blind drunk into oncoming

traffic--was risk-creating and that he was aware of what he was

doing when he engaged in that conduct.

This interpretation is fully supported by and consistent with

our prior case law which, for the most part, is virtually ignored

by the majority.

In State v. Clawson (1989), 239 Mont. 413, 781 P.2d 267, we

stated that "it is clear that the statute is created to punish

reckless or negligent behavior which has the inherent potential of

resulting in death or serious bodily injury to another person."

Clawson, 781 P.2d at 272 (emphasis added).

Moreover, in State v. Crisp (1991), 249 Mont. 199, 814 P.2d

981, we pointed out that the statute "does not require that the

victim suffer actual physical injury . . . [but rather1 [ilt

27
requires only that the defendant engage in conduct that creates a

substantial risk of death or serious bodily injury.11 Criso, 814

P.2d at 904. Unfortunately, in addressing the primary issue in

Crisp--the constitutionality of the criminal endangerment statute--

and with no real analysis of the ordering of language defining that

offense, we erroneously misstated which definition of "knowingly"

is applicable in discussing the mental state element. Unlike the

majority, I would take this opportunity to clarify Crisp rather

than perpetuate that error.

In State v. Willson (1991), 250 Mont. 241, 818 P.2d 1199, we

affirmed the defendant's conviction of criminal endangerment and

his designation as a dangerous offender where he drove through

downtown Billings at speeds up to 100 miles per hour while under

the influence of crank and cocaine, with resulting property damage

and personal injury to innocent people. Willson, 818 P.2d at 1203.

Likewise, in State v. Brown (19951, 270 Mont. 454, 893 P.2d

320, we rejected the notion that either criminal endangerment or

negligent endangerment (§ 45-5-208, MCA) required the State to

prove that any specifically identified individual was put at risk

by the defendant's conduct in firing several gunshots from a moving

vehicle in the direction of homes and vehicles along the highway.

Similarly, in State v. Smaage (1996), 276 Mont. 94, 915 P.2d

192, we affirmed a conviction of criminal endangerment where,

having been previously convicted of six DUIs (one of which resulted

28
in a death and negligent homicide convictionJ2 and with a blood

alcohol level of .250, the defendant. swerved his Buick through

early morning Helena traffic. We concluded that Smaage knowingly

engaged in conduct that created a substantial risk of death or

serious bodily injury to others. Smaaqe, 915 P.2d at 195.

Finally, and most recently, in State v. Bell (Mont. 1996), 923

P.2d 524, 53 St.Rep. 792, we upheld the defendant's conviction of

criminal endangerment where he entered his pickup and then

accelerated and sped away while a deputy sheriff had one hand on

Bell's arm and the other on the truck's open door and where the

defendant then drove at speeds of between 50 and 80 miles per hour

through Hardin streets with the authorities in pursuit

In w we cited the language of the statute itself, its

legislative history and our decisions in Smaaqe and Brown in

concluding that the defendant's knowing conduct creating a

substantial risk of death or serious bodily injury to another--

rather than the result off that conduct--was what violated the law.

Referring to the "tree spiking" language of § 45-5-207, MCA, and

likening that to driving 80 miles per hour down a city street, we

'By comparison, Smaage's record pales in the face of Lambert's

criminal history. According to the presentence investigation

report, Lambert, at 31 years of age, had been convicted of driving

under the influence 9 times in Montana and California; his license

had been suspended or revoked 16 times; he had been charged with

driving while his license was suspended or revoked some 20 times;

he had received 11 separate jail sentences that ranged from serving

two days in jail to serving 60 days in jail; he had been fined

between $30 and $1000 for his offenses; he had failed to complete

court-ordered after-care or Alcoholics Anonymous; and, while

released on bond in the instant case, he was again arrested for

DTJI, driving while his license was suspended or revoked and eluding

a peace officer.

29
stated:

In a prosecution for spiking trees, it is sufficient that

the State prove that the spike was "placed" for the

purpose of damaging a saw. It is not necessary that the

State prove that the tree was actually sawed or that an

identifiable person was

spike. Additionally,

endangered or injured by the

the criminal endangerment statute

does not require proof that the defendant intended to

injure another. Rather, it reauires that the State prove

that the defendant "knowinslv" encased in conduct and

that the conduct created a substantial risk of death or

serious bodilv iniurv to another. [Emphasis added.]

Bell - I 923 P.2d at 526.

We went on to cite Brown and its discussion of the legislative

history of criminal endangerment, noting that it was the

legislature's intent "to 'plug a hole in the criminal law' and

address conduct such as placing poison into aspirin in a store."

,Bell, 923 P.2d at 527 (emphasis added) (citing Brown, 893 P.2d at

322).

We concluded with the following:

Although Bell may have had no intent to injure

anyone, he knowingly drove down a city street at up to 80

mph. The fortuitous circumstance that he did not

actually harm anyone or have any near misses is

irrelevant. His driving down a city street at excessive

speed created a risk of death or serious bodily injury to

unnamed, unidentified people. .

. .

[Wle hold that where a person drives a car at speeds up

to 80 mph through occupied city streets, ignoring traffic

signs, in the middle of the morning, that person creates

a substantial risk of death or serious bodily injury to

another, thus committing the offense of criminal

endangerment. [Emphasis added.]

Bell -I 923 P.2d at 528.

While the majority reads the criminal endangerment statute as

emphasizing result over conduct, our prior decisions, to the case,

30
support precisely the opposite conclusion. In each case we have

focused on conduct which creates a substantial risk as that which

is proscribed by a statute. The result of that conduct was wholly

irrelevant in our prior decisions. It was irrelevant that no

particular victim was identified as being put at risk by the

conduct at issue; it was irrelevant that no one was actually

injured by the conduct at issue. Rather, we focused entirely on

the risk-creating nature of each defendant's conduct.

Whether the conduct at issue is spiking a tree, poisoning a

bottle of aspirin, firing a gun in the general direction of houses

and vehicles, driving at an excessively high rate of speed through

occupied streets, or driving while grossly intoxicated, we have

uniformly and consistently focused on the perpetrator's riskcreating conduct only and not on whether he was aware that his

conduct would cause any particular result.

Contrary to the majority's suggestion, criminal endangerment

does not arise in situations where one is simply "driving a car" or

"shooting a hunting rifle." Rather, it arises where the conduct at

issue involves driving a car, blind drunk, into oncoming traffic or

driving a car at a high speed through occupied city streets with

the police in hot pursuit or shooting a hunting rifle in the

direction of homes and vehicles. If the defendant is aware that he

is engaging in that sort of risk-creating conduct, then he is

acting knowingly and whether he is also aware of the result or

potential result of his conduct is irrelevant. When I fire my

rifle.into a moving train, or, while dead drunk, I drive my car

3 1
into oncoming traffic, all the time being aware of my conduct in

doing those activities, then I have acted knowingly. MY

protestations that I wasn't aware that anyone would be hurt or

killed is meaningless.

Having set forth what is, I believe, the correct analysis of

the applicable law, I next address Justice Leaphart's special

concurrence. First, the author criticizes the District Judge for

instructing the jury utilizing various definitions of "knowingly."

In point of fact, the judge instructed the jury in accordance with

the statute defining the mental state, only one portion of which

was objected to by Lambert; the defendant, himself, agreed with

two-thirds of the "smorgasbord."

Next Justice Leaphart tries to make sense out of the majority

holding by using an example involving issuing a bad check. He then

goes on to claim that the dissent contends that the mental state

element for issuing a bad check and for criminal endangerment are

similar. The concurring Justice is wrong on both counts. The

dissent did not and does not make that contention. Moreover, the

dissent strongly disagrees that Justice Leaphart has articulated

the correct mental state element for issuing a bad check in his

example.

A person simply aware that he is issuing or delivering a

check--i.e., a person who is "aware of his conduct" (subsection (1)

of the court's instruction) has not the mental state required for

commission of the criminal offense. Again, focusing on the actual

ordering of the language of the statute, the person must issue or

32
deliver the check "knowing that it will not be paid by the

depository." In other words he must not only be aware of his

conduct (issuing or delivering the check), but he must also be

aware that under the circumstances his conduct constitutes a crime

or will cause a specific result--i.e., that the check will not be

paid by the depository (subsections (2) and (3) of the court's

instruction).

Unlike the offense of criminal endangerment wherein

"knowingly" modifies the term conduct, in the offense of issuing a

bad check, "knowing" modifies the result. Contrary to the special

concurrence, the result proscribed by the statute is not that the

check was issued or delivered (that is simply conduct) or that

anyone is defrauded (that is not even'an element of the offense).

The prohibited result of issuing or delivering the check is that

the check will not be paid by the depository. If one issues or

delivers a check knowing that will be the result, then the offense

is committed.

The special concurrence then goes on to state that in Smaaqe,

the State had to prove that the defendant "was aware that there was

a high probability that his driving, under [the facts of the case],

created a specific result, that is, a substantial risk of death or

serious bodily injury." Justice Leaphart misquotes our opinion.

In Smaaqe, we referred to the mental state element of the offense

as follows:

The elements of criminal endangerment are the mental

state of "knowinglyl' and the act of engaging in conduct

that creates a substantial risk of death or serious

bodily injury to another. A person commits the offense

33
of criminal endangerment when he is aware that there is

a high probability that his conduct may cause a

substantial risk of death or serious bodily injury to

another. State v. Crisp (1991), 249 Mont. 199, 203, 814

P.2d 981, 983. [Emphasis added.]

Smaaqe, 915 P.2d at 195. We then went on to describe the trial

court ' s quoting with approval comments from Smaage's prior

negligent homicide sentencing regarding his extensive criminal

history involving DUI, and stated: .

The above comments by the District Court outline the

evidence in the record supporting a finding that Smaage

acted "knowingly." The presence of other people on the

streets down which Smaage weaved the Buick--a potential

lethal missile in the hands of a driver with a ,250 blood

alcohol content--supports a finding that Smaage engaged

in conduct creating a substantial risk of death or

serious bodily injury to another.

Smaaqe, 915 P.2d at 195.

At no point in Smaaqe did we hold or even imply that the

defendant had to be aware of a specific result of his conduct to be

convicted of criminal endangerment. To the contrary, the language

quoted above states that Smaage was properly convicted because he

"knowingly" engaged in risk-creating conduct.

While Justice Leaphart criticizes the dissent for "see[ingl

the risk factor as being part and parcel of the conduct, rather

than a 'result' of the conduct," that is precisely how the

Legislature has chosen to define the offense of criminal

endangerment--*conduct that creates a substantial risk of death or

serious bodily injury to another. . . ." The result of conduct is

not proscribed; rather, a specific sort of conduct itself is

prohibited. If the Legislature wanted to prohibit the result of

the conduct--e.g., engaging in conduct, knowing that it creates a

34
substantial risk, etc.,--the Legislature could have and would have

used different language than it did.

Finally, Justice Leaphart uses the example of the three

shooters. Jones fires in the direction where there is nothing but

an open field. He is aware that he is engaging in conduct that is

not causing a substantial risk of death or serious bodily injury to

another. Obviously, Jones is not criminally endangering anyone.

Smith fires in the direction of a grove of trees, wherein,

unbeknownst to him, there is located a house. Justice Leaphart

concludes that under subsection (1) of the court's instruction,

Smith could be charged with criminal endangerment since he was

aware of his conduct. I suggest that such a conclusion depends

necessarily on facts which are not set out in his example. If the

grove of trees is located in the Bob Marshall Wilderness, a jury

might well conclude that Smith's conduct was not risk-creating at

all. I.e., in the words of the statute, shooting into a grove of

trees in the Bob was not conduct that "create[dl a substantial risk

of death or serious bodily injury. . . .II Accordingly, being aware

that one was engaging in that conduct would not be criminally

chargeable because the conduct was not proscribed by the statute.

On the other hand, if the grove of trees was located in a

residential development adjacent to the field, then a jury might

well conclude that, under those circumstances, shooting into the

trees was risk-creating conduct. Being aware that one was engaging

in that conduct would be chargeable.

Johnson fires toward a cluster of houses in plain view.

35
Obviously Johnson is aware that his conduct is risk-creating. me

can be charged with and convicted of criminal endangerment.

Again the focus of criminal endangerment is on the conduct--

was it risk-creating or not? The State must prove that the conduct

was risk-creating--i.e., that the conduct creates a substantial

risk of death or serious bodily to another--and that the defendant

was aware he was engaging in that conduct. Under the language

chosen by the Legislature, the State does not have to prove that

the defendant was aware of any specific result.

Justice Leaphart's suggestion that proof of knowledge based on

subsection (1) of the court's instruction would render negligent

endangerment (§ 45-5-208, MCA) and criminal endangerment

indistinguishable is an issue not raised in this case. Moreover,

this suggestion is likely incorrect in any event, given that the

mental state of "negligently" is specifically defined in terms of

result instead of conduct. Section 45-2-101(42), MCA.

Furthermore, contrary to the special concurrence, the issue in

this case was not a claim of error in giving the jury the option of

picking and choosing definitions of the mental state element of the

crime .charged. The issue involves an instruction that gave the

jury three statutory definitions of the mental state element, two

of which the parties and the court agreed to and one of which was

objectionable to Lambert. The defendant had no problem with the

"smorgasbord;" he merely did not like one of the entrees.

Finally, in regard to Justice Trieweiler's special

concurrence, suffice it to say that I agree with neither his

36
analysis nor with the outcome of the factual scenarios he has

chosen to use as examples--none of which even remotely approximate

the facts presented to the jury in this case. I find it

interesting, however, that he concedes, as he must, that while "in

this case there was obviously evidence that Lambert was aware that

his conduct would create a substantial risk of harm," in the next

sentence he concludes that the jury might not have reached this

same "obvious" conclusion because of an instruction which allowed

them to determine Lambert's mental state if they were convinced

that he was aware that he was engaging in this very risk-creating

conduct. It is instructive, indeed, to learn that while judges are

capable of discerning the obvious, men and women who serve on our

trial juries, apparently, are not. Our collective agonizing over

the definition of mental states aside, I suspect that the next jury

will be in no better position to divine what was going on in

Lambert's drunken mind with the new instruction than the present

jury was with the instruction given by the court. Fortunately, the

next panel will likely still be able to discern the "obvious",

regardless.

In failing to properly analyze the mental state element of

criminal endangerment within the context of the actual language of

the statute and our prior case law, the majority has come to the

wrong conclusion. The trial court's instruction that Lambert

acted knowingly if he was "aware of his conduct" was correct.

I would affirm,
Chief Justice J.A. Turnage and Justice Charles E. Erdmann join in

the foregoing dissent.

Ystice

38
Chief Justice J. A. Turnage, dissenting:

I concur with the dissent of Justice James C. Nelson and

emphasize that Justice Nelson's dissent is absolutely correct as a

matter of law and in keeping with this Court's precedents.

On August 20, 1994, at approximately 1O:OO a.m. Christine

Peterson drove her Jeep Cherokee from her home in Darby, Montana,

to Missoula, Montana. Riding with her were her three school-aged

children and Mary Nelson, a seventh grader and friend of her

daughter. The purpose of the trip to Missoula was school shopping

for the children.

At approximately 5:30 p.m., Christine Peterson and her

passengers were traveling from Missoula on the return trip to their

home in Darby. For Christine Peterson and the children, traveling

south on Highway 93 at approximately 6:00 p.m. and at a point near

Stevensville, Montana, all hell broke loose.

Christine Peterson was driving safely in her southbound lane

of Highway 93 at a speed well within the speed limit when David B.

Lambert, defendant and appellant in this cause, drove his Monte

Carlo vehicle from the parking area of the Fort Owen Inn saloon,

onto Highway 93, crossing into the southbound lane occupied by the

Peterson vehicle and smashing head-on into her vehicle. Lambert's

actions caused a substantial risk of death and caused serious

bodily injury to Christine and her passengers.

At the scene Highway Patrol Officer Thomas Hamilton described

Lambert’s condition when he drove his vehicle head-on into the

Peterson vehicle in this manner:

. . . He was--I have always referred to it as pie faced.

He didn't seem to be in physical control of his muscles

39
and whatnot. He was slouched. His speech was slurred.

He was leaning. He wasn't standing erect. Just his

physical appearance struck me as someone under the

influence of alcohol.

Lambert's person had an odor of alcohol and he failed field

sobriety tests at the scene. When taken to the sheriff's office at

Hamilton, he refused to cooperate in any other sobriety tests and

also refused to give a breath test for alcohol content in his body.

At the scene, Officer Hamilton found in Lambert's vehicle a bottle

of Black Velvet whiskey approximately three-fourths full and both

empty and full bottles of beer.

After Lambert's trial for felony criminal endangerment, a jury

found him guilty of that charge.

At sentencing, Lambert's criminal history for driving motor

vehicles was reviewed by the District Court. This record is an eye

Popper.

For the period June 11, 1983, to November 28, 1994, Lambert's

criminal history record discloses that, at the time of sentencing

in this case, he had been convicted thirty-eight times of serious

driving offenses and that nine charges of serious driving offenses

were still pending.

Nine of the serious convictions were for driving under the

influence of alcohol or drunken driving. Three of the charges

still pending at the time of sentencing were for driving under the

influence of alcohol or drunken driving. The last such charge

still pending is alleged to have been committed while Lambert was

released on bail for the felony criminal endangerment charge and

the pending driving under the influence of alcohol charge of August

20, 1994.

40
Lambert's driver's license has also been suspended on two

occasions when he refused to take a chemical test for alcohol in

his body.

Between May 23, 1987, and August 20, 1994, Lambert had been

convicted seven times of driving a motor vehicle while his license

was suspended or revoked and, at the time of sentencing in this

case, he had pled guilty to driving a motor vehicle while his

license was suspended or revoked on August 20, 1994. Three other

charges against Lambert of driving while his license was suspended

or revoked apparently are still pending.

Mary Nelson, a seventh grader and one of the victims in the

crash, has said it all when she stated, "I feel that when David

gets out of jail, it's not a matter of if he kills someone, but

when."

The majority of this Court is reversing the felony criminal

endangerment conviction of Lambert essentially because of their

holding that the District Court misled the jury in giving court's

instruction no. 12. The majority's opinion is not correct as a

matter of law, as clearly pointed out by Justice Nelson's dissent.

Further, the majority opinion is not correct as a matter of common

sense.

Section 45-5-207, MCA, the statute under which Lambert was

charged and properly convicted of felony criminal endangerment,

insofar as pertinent to this case, provides:

(I) A person who knowingly engages in conduct that

creates a substantial risk of death or serious bodily

injury to another commits the offense of criminal

endangerment.

4 1
Instruction no. 12 given to the jury stated:

A person acts knowingly:

(1) when he is aware of his conduct or

(2) when is aware under the circumstances that his

conduct constitutes a crime or

(3) when he is aware there exists the high probability

that his conduct will cause a specific result.

The statute is clear, and the instruction is clear. The jury

simply could not have been misled. Lambert acted knowingly under

any of the three definitions in instruction no. 12. Lambert in all

probability has had more experience as a drunken driver than anyone

in Montana--he knew what he was doing and was aware of his conduct

on August 20, 1994, when he drove under the influence of alcohol.

The Bench and Bar are well aware that the rule of law, a basis

of stability in our society, is dependent upon public confidence in

our courts and justice system. In its legal arabesque, pirouette,

and struggle to reverse Lambert's conviction, the majority in this

case will, I believe, undermine public confidence in the court and

justice system of Montana. Decisions such as this leave no doubt

why MADD is angry.

I would affirm the District Court.

Justice Charles E. Erdmann concurs in the dissent of Chief &stice

Turnage.

Justice

42