No. 14213 

IN THE STJPFSEE COW OF THE STATE OF M3NTANA 

1978 

STATE OF mNTANA, 

Plaintiff and Respondent, 

-VSSTEPHEN GONE, JR. , 

Defendant and Appellant. 

Aqpeal from: District Court of the Seventeenth Judicial District, 

Homrable -nard H. Langen, Judge presiding. 

Counsel of Record: 

For Appellant: 

Peter 0. mltese argued, Glasgow, Pbntana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, mntana 

Mike NTarter argued, Assistant Attorney General, Helena, 

Pbntana and Mark Racicot argued, Assistant Attorney General, 

Helena, Fbntana 

For Amicus Curiae: 

Stephen L. Pevar, Denver, Colorado 

Suhitted: September 14, 1978 

Decided: @T S Q 2978 

Filed : , -- * 'C 

c! 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Defendant appeals from his conviction of the crime of 

aggravated assault following a jury trial in the District Court 

of Phillips County. 

Defendant Stephen Gone, Jr. and several companions 

spent the afternoon and early evening of June 20, 1977, drinking and visiting friends. En route from the home of one friend 

to another, they stopped at Kalal's Bar and Cafe in Zortman, 

Montana. While seated in the cafe waiting for their order to be 

served, defendant used some profane language and further commented: 

"If one more Indian gets killed at this establishment, we're going 

to close it down". The bar owner, John Kalal, told defendant to 

leave. A scuffle ensued and defendant was forcibly ejected. 

Thereafter, according to one witness, defendant said, "Let's go 

get that gun and fix him", while another witness indicated he 

said "It's lucky they didn't have a gun in there." 

About 4:30 the following afternoon John Kalal was working 

outside behind his bar building when he noticed defendant's car 

approaching. Sensing trouble, Kalal went in the back door of 

the bar and called to his wife that "they were back". As Kalal 

watched from inside the bar, defendant's car made a U-turn in 

front of the bar so that his car was parked facing the direction 

from which it had come. Defendant's car was 50 to 75 feet from 

the front of the building. 

Defendant stepped out of his car with a bolt action 30-06 

rifle, aimed and fired about five shots into the building where 

Kalal and his wife were. Defendant then sped out of town in his 

car. Kalal, who had flattened himself on the floor after the 

first shot, telephoned the authorities upon hearing defendant's 

car leave. 

Buddy Walsh, a highway safety patrolman on the Fort Belknap 
~eservation, was working on his father's ranch outside Zortman 

when his wife told him he had just received a call about a 

shooting in Zortman. He observed defendant's car speed by 

and gave pursuit. Defendant disregarded the siren and lights 

on Walsh's patrol car and the patrolman's order over the P.A. 

system to pull over. Defendant continued to the home of a 

friend with the patrolman following. When defendant finally 

stopped, he got out of his car and pointed his rifle at the 

patrolman. Walsh pointed his pistol at defendant and ordered 

him to drop his rifle. Defendant ignored the order and darted 

into the brush. 

Shortly thereafter, Walsh spotted the defendant on a 

ridge several hundred yards away, heard a loud report, and heard 

a shot that sounded close to him. Walsh backed his patrol car 

out of range, leaving the matter in the hands of tribal police 

who had arrived at the scene. 

Defendant was arrested the following morning. He was 

charged with the crimes of attempted deliberate homicide and 

aggravated assault arising out of the incident at Kalal's Bar 

and Cafe. Defendant entered a plea of "not guilty" to each charge. 

Trial by jury in the District Court of Phillips County 

began on November 21, 1977. Two days later the jury returned a 

verdict of "not guilty" of the crime of attempted deliberate 

homicide and a verdict of "guilty" of the crime of aggravated 

assault. Following a presentence investigation, defendant was 

sentenced to a term of 40 years in the State Prison as a persistent felony offender pursuant to section 95-1507, R.C.M. 1947, as 

amended. The judgment and sentence further provided that defendant would be ineligible for parole or participation in the prisoner 

furlough program while serving the first one-half of his term 

pursuant to section 95-2206(3) (b), R.C.M. 1947, as amended. 

Four specifications of error are presented for review in 
this appeal: (1) Denial of defendant's motion for a jury view 

of the scene of the crime; (2) admission of Buddy Walsh's testimony concerning defendant's assault upon him and resisting 

arrest; (3) insufficiency of the evidence to support conviction; 

(4) the provision in the sentence that defendant would be ineligible for parole or the prisoner furlough program while 

serving the first half of his term. 

Defendant contends it was reversible error to deny his 

motion that the jury be permitted to view the scene of the crime. 

He argues that a fundamental issue in the case was whether he 

could see inside the bar at the time of the shooting. If not, 

he argues, he could not have intended to kill or injure anyone 

inside. Therefore, he concludes, a jury view was required to 

provide a real perspective on the location and distance of defendant from the bar when the shots were fired, the location of 

the buildings, the size of the front windows in the bar, the 

size and dimension of objects in the windows that may have obstructed his vision, the lighting conditions inside the bar, and 

the amount of glare reflected off the windows. 

Statutory authority for a jury view of the scene of the 

crime provides : 

"When the court deems it proper that the jury 

view any place or personal property pertinent 

to the case, it will order the jury to be conducted in a body under the custody of the sheriff 

or bailiff, to view said place or personal 

property in the presence of the defendant and 

his counsel." Section 95-1912, R.C.M. 1947. 

The purpose of a jury view is to enable the jury to 

understand and apply the evidence given in the courtroom. State 

v. Cates (1934), 97 Mont. 173, 33 P.2d 578; 75 Am Jur 2d Trial, 

572. The general rules governing the trial court's discretion 

to grant or deny a jury view has been expressed in this manner: 

"As a general principle, a view or inspection 

should be granted only where it is reasonably 

certain that it will be of substantial aid to the 
jury in reaching a correct verdict. The court 

may refuse to allow a view where it does not 

appear that the jury would be materially assisted 

thereby, or where they are already familiar with 

the premises involved, or where photographs, diagrams, or maps in evidence adequately present the 

situation, or where the jury does not feel that 

a view would be helpful or of benefit to them. 

The court may also, in determining whether the 

view shall be permitted, consider such matters 

as expense, delay, the distance to be traveled, 

inconvenience, and the complication and uncertainty, 

or want of it, in the evidence." 88 CJS Trial 547. 

Under Montana law, the matter of permitting a jury view rests 

entirely in the discretion of the trial court and its determination will not be overturned except in case of manifest abuse. 

State v. Allison (1948), 122 Mont. 120, 142, 199 P.2d 279, 292. 

In this case there was extensive testimony describing the 

scene of the shooting, the positions of defendant and the victim, 

and relevant angles and measurements. Testimony was introduced 

concerning the measurements of the bar windows; the lighting and 

weather conditions; the position and distance of defendant from 

the bar at the time of the shooting; and the position and distance of the victim from the windows at the time of the shooting. 

Illustrative diagrams of the scene were drawn to aid the jury in 

understanding this testimony. Two color photographs of the bar 

were admitted in evidence, one taken from the position where 

testimony placed the defendant at the time of the shooting. Testimony from the victim, the victim's wife, and the deputy sheriff 

indicated that defendant could have seen persons inside the bar 

from a distance of 50 to 75 feet where testimony placed defendant. 

One defense witness claimed he could not see into the bar, while 

another defense witness claimed she could not see into the bar 

from 150 feet, but could see into the bar when closer than that 

distance. 

A 45 mile trip one way from the courtroom to the scene of 

the crime under zero degree weather conditions was involved in a 

jury view. Under such circumstances the juror's ability to 
perceive and appreciate the subtleties defendant suggests inhered 

in the scene would have been diminished,if not destroyed. 

Finally there was a significant danger that the jury 

might be misled by the view. Six months had elapsed between the 

date of the crime and the time of trial. The seasons had changed; 

the lighting and weather conditions were substantially different; 

the sun was in a different position in the sky and its rays shone 

on the crime scene from a different angle than at the time of the 

crime. A substantial potential for mischief regarding any determination of opacity and glare on the bar windows was inherent in 

a jury view under such circumstances. 

Because these substantial reasons existed for denying a 

jury view of the crime scene, we hold there was no abuse of discretion or error in denying defendant's motion for a jury view. 

Defendant next contends that the admission in evidence of 

Buddy Walsh's testimony concerning defendant's assault on him 

and resisting arrest constituted reversible error. He argues 

that this testimony was irrelevant because other witnesses testified regarding intent and motive, and such testimony was prejudicial because the jury would think the worst of a person who 

would commit unrelated crimes against a law enforcement officer. 

The controlling statute reads: 

"Other crimes, wrongs, acts. Evidence of other 

crimes, wrongs, or acts is not admissible to 

prove the character of a person in order to show 

that he acted in conformity therewith. It may, 

however, be admissible for other purposes, such 

as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of 

mistake or accident." Rule 404(b), Mont.R.Evid. 

The Commission Comment to this rule notes that Montana law is 

consistent with the concept that purposes other than those listed 

may be used to admit evidence of other crimes. 

In Montana the flight of defendant may be considered by 

the jury as a circumstance tending to prove consciousness of 
guilt. State v. Walker (1966), 148 Mont. 216, 225, 419 ~.2d 300, 

305. The testimony of Buddy Walsh is also admissible on the 

issue of criminal intent; it has probative value as evidence of 

defendant's state of mind. It tends to prove that notwithstanding his drinking, defendant possessed the state of mind or intent 

required to constitute the crime. Balancing this probative 

value against the unfair prejudice defendant claims, we cannot 

conclude that the latter outweighs the former and renders the 

evidence inadmissible. Rule 403, Mont.R.Evid. We hold the 

evidence admissible. 

Defendant claims the evidence is insufficient to support 

his conviction for two reasons: (1) That he was too intoxicated 

to form the intent that constitutes an element of the crime of 

aggravated assault, and (2) that his acquittal on the charge of 

attempted deliberate homicide is inconsistent with his conviction of aggravated assault. 

We recognize that an intoxicated or drugged condition may 

be taken into consideration in determining the existence of a 

mental state which is an element of an offense. Section 94-2-109, 

R.C.M. 1947. However, we have recognized that each case must 

be determined by the jury on its own facts: 

"'The element of felonious intent in every contested criminal case must necessarily be determined 

from the facts and circumstances of the particular 

case--this for the reason that criminal intent, 

being a state of mind, is rarely susceptible of 

direct or positive proof and therefore must usually 

be inferred from the facts testified to by witnesses 

and the circumstances as developed by the evidence. 

"'The question of intent is a question for the 

jury. 'I' State v. Pascgo (1977), Mont . 566 P.2d 802, 805, 34 St.Rep. 65731, citing I 

State v. Cooper (1971), 158 Mont. 102, 489 P.2d 99. 

Where the record contains considerable evidence of activity by 

the defendant which the jury might have used to determine the 

degree of his intoxication, the question of the relationship 
between voluntary intoxication and criminal intent will not be 

reconsidered on appeal. State v. Austad (1975), 166 Mont. 425, 

430, 533 P.2d 1069, 1071; State v. Lukus (1967), 149 Mont. 45, 

55-56, 423 P.2d 49, 55; State v. Reagin (1922), 64 Mont. 481, 

489, 210P. 86, 88. 

Here the shooting took place on the day after defendant 

had been ejected from Kalal's bar. Uncontradicted testimony 

established that defendant was sufficiently in control of his 

faculties to drive to the bar, make a U-turn in contemplation 

of his escape, and aim and fire his rifle several times with 

calm deliberation. In the course of leaving the scene, he 

attempted to elude a pursuing police officer and later resisted 

arrest by that officer. Thus there was substantial circumstantial evidence to support a finding of the requisite criminal 

intent that is an element of the crime. 

Defendant objects that he could not see into the bar 

and was merely "shooting up a building" rather than knowingly 

attempting to inflict serious bodily injury or reasonable apprehension of serious bodily injury as required by section 94-5-202(1), 

R.C.M. 1947. Even conceding that defendant might not have been 

able to actually see anyone inside the bar, that does not negate 

the possibility that he acted knowingly. There was still the 

jury question of whether he was necessarily aware of a high probability that someone was in the bar at 4:30 in the afternoon. 

Section 94-2-101(28), R.C.M. 1947. Defendants argument in this 

regard is not persuasive. 

Likewise, we reject defendant's contention that the 

verdict must be reversed for inconsistency. Consistency in verdicts on multiple charges is not required in all cases. State 

v. Thompson (1978), Mont . , 576 P.2d 1105, 1108, 35 St.Rep. 

343, 347. "Inconsistency in a verdict is not in itself ground 

for a new trial, unless the inconsistency is such as to invalidate 
the verdict." 24 C.J.S. Criminal Law S1450. 

We find no such inconsistency present here. Contrary 

to defendant's contention, the elements of the crime of attempted 

deliberate homicide and the crime of aggravated assault are not 

almost identical. The two crimes are distinguishable in that 

the crime of attempted deliberate homicide requires a specific 

intent or purpose to cause death while the crime of aggravated 

assault does not. Under the facts here, the jury could properly 

find that although defendant did not specifically intend to kill 

anyone, he did purposefully and knowingly place another in reasonable apprehension of serious bodily injury, or he knew or should 

have known that there was a high probability that shooting into 

the bar would place another in fear of serious bodily injury. 

The final issue concerns the legality of the provision 

in the sentence rendering defendant ineligible for parole or 

prisoner furlough until one-half of his sentence is served. This 

issue was raised by the Attorney General; the American Civil 

Liberties Union filed an amicus brief directed to this issue; and 

upon oral argument both parties agreed that this restriction 

could not be imposed in this case. 

The crime of which defendant was convicted occurred on 

June 21, 1977. The statute authorizing imposition of such restriction had an effective date of July 1, 1977. Section 95-2206(3)(b), 

R.C.M. 1947. Thus its application here was -- ex post facto. A law 

which eliminates or delays a defendant's parole eligibility after 

the criminal offense has been committed is -- ex post facto as applied 

to that defendant. State ex rel. Nelson v. Ellsworth (1963), 142 

Mont. 14, 380 P.2d 886; Greenfield v. Scafati (D. Mass. 1967) 

277 F.Supp. 644, aff'd per curiam (1968), 390 U.S. 713. We order 

such restriction stricken from the judgment and sentence. 

Affirmed as modified. 
Chief Justice 

Mr. Justice Daniel J. Shea dissents and will file a written 

dissent later.