DA 09-0490

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 116

IN THE MATTER OF

T.J.B.,

A Youth Under the Age of Eighteen.

APPEAL FROM: Youth Court of the Fourth Judicial District,

In and For the County of Missoula, Cause No. DJ 09-29

Honorable Robert L. Deschamps, III, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joslyn Hunt, Chief Appellate Defender; Eric Bunn, Assistant Appellate

Defender; Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; Jonathan M. Krauss,

Assistant Attorney General; Helena, Montana

Fred R. Van Valkenburg, Missoula County Attorney; Dori Brownlow,

Deputy County Attorney; Missoula, Montana

Submitted on Briefs: March 17, 2010

Decided: May 25, 2010

Filed:

__________________________________________

Clerk

May 25 2010
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Justice Brian Morris delivered the Opinion of the Court.

¶1 T.J.B. appeals from an order of the Youth Court for the Fourth Judicial District,

Missoula County, adjudicating himas a serious delinquent youth, and committing himto the

custody of the Department of Corrections until he reaches the age of 18. We affirm.

¶2 We review the following issues on appeal:

¶3 Did the Youth Court violate the Confrontation Clause when it denied T.J.B.’s motion 

in limine?

¶4 Did the Youth Court properly deny T.J.B.’s motion for a directed verdict?

¶5 Did the Youth Court properly refuse T.J.B.’s proposed jury instruction?

¶6 Did sufficient evidence support the Youth Court’s jury instruction on serious bodily

injury?

FACTUAL AND PROCEDURAL BACKGROUND

¶7 T.J.B. and several of his friends engaged in numerous acts of vandalism in Missoula

over the course oftwo weeksin February 2009. T.J.B. and hisfriends “hung out” and drank

together. They drove around Missoula smashing car windows. They accomplished much of

the damage by shooting car windows with BB guns. T.J.B. and his friends took turns

shooting from the front passenger seat. Sometimes they would shoot at parked cars as they

drove past. Other times they would get out, walk up to the parked car, and shoot the

windows. They would decide at random whether to shoot at a parked car.

¶8 T.J.B. and his friends also shot the windows of businesses and schools, and

sometimes used rocks or metal pipe to break the windows. T.J.B. and his friend J.F. also
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stole a carstereo from one ofthe carsthat they had vandalized. T.J.B. estimated that he and

his friends broke between seventy-five and one hundred windows during their vandalism

spree. T.J.B. occasionally shot at moving vehicles, and on at least one occasion, he shot at a

pedestrian. T.J.B. and J.F. stole spray paint, food, beer, and later a BB gun from Wal-Mart.

They used the stolen paint to “tag” graffiti at the skate park and at other locations around

Missoula.

¶9 Detectives conducted a videotaped interview with T.J.B. on February 20, 2009.

Detectives arrested T.J.B. after the interview. The State filed a petition in which it alleged

that T.J.B. was a delinquent youth. The State alleged that T.J.B. had committed the offenses

of felony conspiracy to commit criminal mischief by common scheme, felony criminal

endangerment, misdemeanor criminal mischief, and misdemeanor theft.

¶10 The investigating officerstestified at trial subject to cross-examination by T.J.B. The

State played the videotape of T.J.B.’s interview at trial. T.J.B. did not object. T.J.B. did

object to ten “statements” contained in the interview questions. T.J.B. asserted that these

statements constituted hearsay because they were attributable to witnesses who were not

testifying at trial and therefore who would not be subject to cross-examination. T.J.B.

claimed that the introduction of the statements would violate his constitutional right to

confront the witnesses against him.

¶11 The Youth Court admitted eight of the ten statements that did not constitute hearsay

or that T.J.B. had adopted, affirmed, or admitted. The Youth Court initially sustained

T.J.B’s objection to the remaining two statements because T.J.B. had denied them and the
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declarant was not scheduled to testify at trial. The Youth Court reversed its initial ruling

after the declarant, J.F., testified.

¶12 T.J.B. moved to dismiss the conspiracy charges at the close of the State’s case based

upon insufficient evidence. The Youth Court found the record to be “replete with evidence

of conspiracy.” The Youth Court refused T.J.B.’s proffered jury instruction on negligent

endangerment as a lesser included offense of criminal endangerment. The Youth Court

instead instructed the jury on criminal endangerment and the definition of “serious bodily

injury” over T.J.B.’s objection.

¶13 The jury returned a unanimous verdict. The jury found that T.J.B. had committed all

of the offenses with which the State had charged him. The Youth Court adjudicated T.J.B.

as a delinquent youth and seriousjuvenile offender. The court committed T.J.B. to the Pine

Hills Youth Correctional Facility until his eighteenth birthday. T.J.B. appeals.

STANDARD OF REVIEW

¶14 We review a court’s evidentiary decisions for an abuse of discretion. State v.

Mizenko, 2006 MT 11, ¶ 8, 330 Mont. 299, 127 P.3d 458. A court possesses no discretion,

however, in the correct interpretation of the Sixth Amendment. Id. (citing Crawford v.

Washington, 541 U.S. 36, 42, 124 S. Ct. 1354, 1359). We review de novo a court’s

interpretation of the Sixth Amendment. Id.

¶15 We review de novo a court’s denial of a motion for a new trial on sufficiency of

evidence grounds. State v. Jackson, 2009 MT 427, ¶ 23, 354 Mont. 63, 221 P.3d 1213. We

view the evidence in the light most favorable to the prosecution to determine whether a
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rational trier of fact could have found the essential elements of the crimes beyond a

reasonable doubt. Id. We will not substitute our judgment for that of the jury, and we will

assume every fact that the jury could have deduced from the evidence. Id.

¶16 We review jury instructions in their entirety to determine whether the instructions,

taken as a whole, fully and fairly presented the applicable law to the jury. State v. Schmidt,

2009 MT 450, ¶ 26, 354 Mont. 280, 224 P.3d 618. The trial court has broad discretion in

formulating jury instructions. Id. The instructions must affect prejudicially the appellant’s

substantial rights to constitute reversible error. Id.

DISCUSSION

¶17 Did the Youth Court violate the Confrontation Clause when it denied T.J.B.’s motion

in limine?

¶18 T.J.B. filed a motion in limine to prevent any mention of portions ofthe interviewthat

referred to the statements ofsuspects who were not scheduled to testify at trial. T.J.B. argues

on appeal that the Youth Court’s admission often “statements” taken fromhis interviewwith

police officers violated his Sixth Amendment right to confront the witnesses against him.

The ability to cross-examine a witness represents the cornerstone of a defendant’s right to

confront the witnesses against him. See State v. Sanchez, 2008 MT 27, ¶ 32, 341 Mont. 240,

177 P.3d 444. This rule does not apply to non-hearsay statements, however, or to hearsay

statements made by a declarant who is available for cross-examination at trial. UnitedStates

v. Mitchell, 502 F.3d 931, 966 (9

th Cir. 2007).
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¶19 The Youth Court initially admitted eight ofthe statements after determining that they

did not constitute inadmissible hearsay. The court determined that a number of the

statements constituted adoptive admissions. A party’s own statement, or one in which the

party has manifested an adoption or belief in its truth, does not qualify as hearsay. M. R.

Evid. 801(d)(2)(A), (B). ThisCourt addressed the issue of whether a defendant has adopted

the statement of another for purposes of Rule 801(d)(2)(B) in State v. McCollom, 2009 MT

257, 323 Mont. 10, 214 P.3d 1230, and State v. Widenhofer, 286 Mont. 341, 950 P.2d 1383

(1997).

¶20 ThisCourt in Widenhofer determined that a suspect had not adopted a statement under

Rule 801(d)(2)(B) where the suspect had entered a patrol car at the officer’srequest, had not

heard the initial statement, and had not responded to the officer’s question about the

statement. In McCollom, we applied a Sixth Circuit test articulated in U.S. v. Jinadu, 98

F.3d 239, 244 (6

thCir. 1996). The Sixth Circuit determined that a criminal defendant’s“yes”

answer to an officer’s question about the contents of a package containing drugs constituted

sufficient evidence to determine that the defendant had “heard, understood, and acquiesced

in the statement.” Jinadu at 244.

¶21 The purported adoption at issue in McCollum involved an equivocal statement by the

defendant – who was intoxicated at the time – that another suspect’s statement that

McCollum had started a fire “possibly” could be true. McCollum, ¶ 25. McCollum

equivocated and asserted repeatedly that he had been extremely intoxicated and could not

remember the incident. Like the defendant in Widenhofer, McCollum had not heard the
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suspect’s statement to the officer and the officer had recounted only portions of his

conversation with the suspect. McCollum never affirmatively agreed with the officer’s

statements. McCollum stated only that the other suspect was generally a trustworthy and

honest person and that it was “possible” that McCollum had lit the fire about which he was

being questioned. Id. at ¶ 14. We determined that insufficient facts existed to support the

requirement under Jinadu that McCollum had “heard, understood, and acquiesced in the

statement.” Id. at ¶ 26.

¶22 The statements that T.J.B. challenges do not present the same ambiguity. The

interviewing officer asked T.J.B. if he had been at a party. T.J.B. indicated that he did not

remember, but agreed that the statements of other suspects placing him at the party were

likely to be correct. The officer asked “so you were with them if they said you were?”

T.J.B. answered, “yes, sir.” The officer further inquired whether T.J.B. had been breaking

windows with the other suspects, and T.J.B. answered, “yes, sir.” The officer asked T.J.B.

how he could remember having broken windows when he could not remember having been

present. T.J.B. responded “because I’m pretty sure that’s something I would do.” Unlike

McCollum, T.J.B. clearly understood, and more importantly, agreed unequivocally with the

statements. We conclude based on the record before us that T.J.B. effectively adopted the

statements at issue, and that the Youth Court therefore properly denied T.J.B.’s motion in

limine.

¶23 The Youth Court denied T.J.B.’s motion with respect to two other statements on the

basis that the statements did not constitute hearsay. Hearsay is a statement, other than one
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made by the declarant while testifying, offered in evidence to prove the truth of the matter

asserted. M. R. Evid. 801(c). One ofthe statementsinvolved a statement by T.J.B.’s brother

about the artistic abilities of an alleged graffiti tagger.

Officer: Well, I mean your brother commented about [B.] had some style so, I 

mean, was he with you or wasn’t he?

T.J.B.: I guess he was.

The Youth Court determined that the State had not offered the statement in order to “prove 

the truth of the matter asserted” – that B. possessed artistic ability while wielding a can of 

spray paint – but rather to indicate whether T.J.B. knew of B.’s participation in the 

vandalism. 

¶24 The second “statement” involved an observation by the interviewing police officer

that one of the suspects preferred to shoot from a moving vehicle.

Officer: [K.] seemed to like driving by. He didn’t like to stop. He just liked 

to drive by and, wham. That sound right?

The Youth Court admitted the officer’s statement because it was not the statement of another 

person. The interviewing officer himself uttered the “statement” about the shooting habits of 

K., one of T.J.B.’s alleged co-conspirators. The officer testified at trial and T.J.B. crossexamined him at length. The officer’s statement does not constitute hearsay under M. R.

Evid. 801 because the officer was available to be cross-examined at trial. The Youth Court

properly allowed the statements in evidence.

¶25 The Youth Court initially sustained T.J.B.’s objection to two remaining statements

made by J.F., one of T.J.B.’s alleged co-conspirators. The court granted T.J.B.’s motion
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because T.J.B. had denied the assertions and J.F. initially was not scheduled to testify attrial.

The Youth Court later admitted the video in its entirety when J.F. testified at trial. T.J.B.

cross-examined J.F. at trial. The Youth Court’s admission of the interview tape in its

entirety did not violate T.J.B.’s confrontation rights.

¶26 Did the Youth Court appropriately deny T.J.B.’s motion for a directed verdict?

¶27 The Youth Court denied T.J.B.’s motion for a directed verdict to dismiss the two

counts of conspiracy to commit criminal mischief based upon insufficiency of evidence.

Section 46-16-213, MCA, precludes a defendant from being convicted based solely on an

accomplice’s testimony “unless the testimony is corroborated by other evidence that . . .

tends to connect the defendant with the commission of the offense.” T.J.B. argues that his

participation in a conspiracy could not have been proven based solely on the evidence of his

alleged co-conspiratorJ.F. T.J.B. relies on State v. Marler, 2008 MT 13, 341 Mont.120,176

P.3d 1010, for the proposition that he could not have been convicted of a conspiracy based

solely on J.F.’s testimony. T.J.B. misplaces reliance on Marler.

¶28 We determined in Marler that “evidence may corroborate accomplice testimony

sufficiently even though standing alone it fails to support a conviction or fails to make out a

prima facie case against the defendant.” Id. at ¶ 23. Corroborating evidence presented by

the State created an issue of fact that rendered a directed verdict inappropriate. The District

Court in Marler “correctly did not resolve conflicting testimony . . . with regard to § 46-16-

213, MCA.” Id. at ¶ 35.
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¶29 The State presented extensive circumstantial evidence in addition to J.F.’stestimony.

The State presented evidence that T.J.B. and J.F. were together on the nights that the

vandalism had been committed. The State presented evidence that T.J.B. and J.F. met at

T.J.B.’s house and went out together with the purpose of breaking windows. The State

presented evidence that T.J.B. and J.F. stole items together that they later used to commit

acts of vandalism. The State presented numerous photographic exhibits of the guns that

T.J.B. and J.F had used to engage in the vandalismand ofthe damage that they had inflicted.

The court evaluated this evidence in concert with the admissions contained in T.J.B.’s

interview with police officers and J.F.’s testimony. The State presented sufficient

“independent evidence tending to connect [T.J.B.] with the conspiracy to commit [criminal

mischief], when viewed in the light most favorable to the prosecution.” Marler, ¶ 36. The

Youth Court correctly referred resolution of this factual issue to the jury.

¶30 Did the Youth Court appropriately refuse T.J.B.’s proposed jury instruction?

¶31 The Youth Court found that the intentional nature of T.J.B.’s acts did not support

T.J.B.’s request for a lesser included offense instruction on criminal endangerment. T.J.B.

claimsthat the factssupported a negligent endangerment instruction because T.J.B. admitted

in the taped interview that he “may” have shot at moving cars “one time.” T.J.B. arguesthat

“the jury certainly could have concluded that it was merely negligent to shoot once in the

general direction of moving cars.”

¶32 A person commitsthe offense of criminal endangerment when he knowingly engages

in conduct that creates a substantial risk of death orserious bodily injury to another. Section
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45-5-207(1), MCA. A person acts “knowingly” when he is aware of his own conduct and

when he is aware that it is highly probable that his conduct will cause a proscribed result.

Section 45-2-101(35), MCA. Negligent endangerment differs fromcriminal endangerment

by the state of mind required for commission of the offense. Section 45-5-208, MCA. A

person acts “negligently” when he consciously disregards a risk that a result will occur or

that a circumstance exists. Section 45-2-101(43), MCA.

¶33 A court must provide a lesser included offense instruction only if a party requests it

and the jury rationally could find the defendant guilty of the lesser included offense.

Schmidt, ¶ 42. The record indicatesthat T.J.B. took aim and fired at moving vehicles, and on

at least one occasion fired at a pedestrian. The act of aiming and firing a gun at a person

implicates knowing, rather than negligent, conduct. T.J.B.’s purpose in firing a gun at a

person was to cause the intended result of hitting the person. The Youth Court properly

determined that T.J.B. had engaged in knowing conduct and that a jury rationally could not

find him guilty of negligent conduct. The Youth Court did not abuse its considerable

discretion in the formulation of the jury instruction. Schmidt, ¶ 26.

¶34 Did sufficient evidence support the Youth Court’s jury instruction on serious bodily

injury?

¶35 The Youth Court instructed the jury on serious bodily injury based on its conclusion

that the question of whether T.J.B.’s actions created a “substantial risk of serious bodily

injury” presented a question of fact for the jury. The Youth Court reasoned that the jury

should determine whether T.J.B.’s admitted conduct created a substantial risk of death,
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serious permanent disfigurement, or an expected result ofserious permanent disfigurement.

Section 45-2-101(66), MCA.

¶36 T.J.B. argues that the State failed to present evidence of actual death or permanent

disfigurement. T.J.B. adduces no authority in support of his position. In fact, T.J.B. citesto

portions of the transcript in which he admitted that he thought injury could result from his

actionsin shooting at a person. Criminal endangerment, by definition, creates a “substantial

risk” of serious bodily injury. The State need not demonstrate that serious bodily injury

actually resulted in order to satisfy the elements of the offense. Section 45-5-207(1), MCA.

“Serious bodily injury” constitutes one element of criminal endangerment. The YouthCourt

did not abuse its discretion by choosing to instruct the jury on the definition of “serious

bodily injury” in the context of the criminal endangerment charge. Schmidt, ¶ 26.

¶37 Affirmed.

/S/ BRIAN MORRIS

We Concur:

/S/ MIKE McGRATH

/S/ JAMES C. NELSON

/S/ PATRICIA O. COTTER

/S/ W. WILLIAM LEAPHART