No. 14213 INTHE STJPFSEECOWOF THE STATEOFM3NTANA 1978

STATEOFmNTANA, Plaintiff and Respondent,

-VSSTEPHENGONE, JR.

### , Defendant andAppellant.

Aqpeal from: DistrictCourtof theSeventeenthJudicialDistrict, Homrable-nard H. Langen, Judgepresiding. Counselof Record: For Appellant: Peter 0. mlteseargued,Glasgow, Pbntana For Respondent: Hon. Mike Greely, AttorneyGeneral,Helena, mntana MikeNTarterargued, AssistantAttorney General, Helena,

Pbntana andMark Racicot argued,AssistantAttorney General, Helena, Fbntana ForAmicus Curiae: StephenL. Pevar, Denver, Colorado

Suhitted: September 14, 1978 Decided: 

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## 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 someprofane 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 "theywere back". As Kalal watched from inside the bar, defendant's carmade a U-turn in front of the bar so that his carwas parked facing the direction fromwhich 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

onWalsh'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. Defendantwas arrested the followingmorning. 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 "notguilty" 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, defendantwas sentenced to a term of 40years in the State Prison as a persistent felony offender pursuant to section 95-1507,R.C.M. 1947,as amended. The judgment and sentence furtherprovided that defendant would be ineligible for parole or participation in the prisoner furloughprogram 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 inthis appeal: (1) Denial of defendant'smotion 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) insufficiencyof the evidence to support conviction;

(4) the provision in the sentence that defendantwould 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 casewas 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 realperspective on the location and distance of defendant from the bar when the shotswere fired,the location of the buildings, the size of the front windows in the bar, the size and dimension of objects in the windows thatmay 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 crimeprovides: "When the courtdeems itproper 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 thepresence 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), 97Mont. 173, 33 P.2d 578; 75Am Jur 2d Trial, 572. The general rules governing the trial court's discretion to grant or deny a jury view has been expressed in thismanner: "Asa general principle, a view or inspection should be granted only where it is reasonably certain that itwill be of substantial aid to thejury 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 familiarwith the premises involved,or where photographs, diagrams, ormaps 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 courtmay 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, thematter of permitting a jury view rests entirely in the discretion of the trial court and its determinationwill not be overturned except in case ofmanifest abuse. Statev. Allison (1948), 122Mont. 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. Testimonywas 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 theposition and distance of the victim from the windows at the time of the shooting. Illustrativediagrams of the scenewere 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 testimonyplaced the defendant at the time of the shooting. Testimony from the victim, thevictim'swife, and the deputy sheriff indicated that defendant could have seenpersons inside the bar from a distance of 50 to 75 feet where testimony placed defendant. One defensewitness 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 45mile trip oneway from the courtroom to the scene of the crime under zero degreeweather conditions was involved in a jury view. Under such circumstances the juror's ability toperceive and appreciate the subtletiesdefendant suggests inhered in the scenewould have been diminished,if not destroyed. Finally there was a significantdanger 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 substantiallydifferent; the sunwas 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 therewas 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 testimonywas 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 commitunrelated 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. Itmay, however,be admissible for other purposes, such asproof 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 consistentwith the concept thatpurposes other than those listed may be used to admit evidence of other crimes. InMontana the flight of defendantmay be considered by the jury as a circumstance tending to prove consciousness ofguilt. State v. Walker (1966), 148Mont. 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, defendantpossessed 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 inconsistentwith his conviction of aggravated assault. We recognize that an intoxicated or drugged conditionmay be taken into consideration in determining the existence of a mental statewhich 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 susceptibleof direct or positive proof and therefore must usually be inferred from the facts testified to by witnesses and the circumstancesas 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,citingI State v. Cooper (1971),158Mont. 102, 489 P.2d 99. Where the record contains considerable evidence of activity by the defendantwhich the jurymight have used to determine the degree of his intoxication, the question of the relationshipbetween voluntary intoxication and criminal intent will not be reconsidered on appeal. Statev. Austad (1975),166Mont. 425, 430, 533 P.2d 1069, 1071; Statev. Lukus (1967),149 Mont. 45, 55-56, 423 P.2d 49, 55; Statev. Reagin (1922),64Mont. 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 firehis rifle several timeswith 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 "shootingup a building" rather than knowingly attempting to inflict seriousbodily injury or reasonable apprehension of seriousbodily 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 someonewas 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 rejectdefendant's contention that the verdict must be reversed for inconsistency. Consistency in verdicts onmultiple charges is not required in all cases. State

v. Thompson (1978), Mont

# . , 576 P.2d 1105, 1108, 35 St.Rep. 343, 347. "Inconsistencyin a verdict is not in itself ground for a new trial,unless the inconsistency is such as to invalidatethe verdict." 24 C.J.S. Criminal Law S1450. We find no such inconsistencypresent 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 deathwhile the crime of aggravated assault does not. Under the facts here, the jury could properly find that although defendantdid not specifically intend to kill anyone, he did purposefully and knowingly place another in reasonable apprehension of seriousbodily injury, or he knewor should have known that therewas a high probability that shooting into the bar would place another in fear of seriousbodily 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 theAttorney General; the American Civil LibertiesUnion filed an amicus brief directed to this issue; and upon oral argumentboth parties agreed that this restriction could not be imposed in this case. The crime of which defendantwas convicted occurred on June 21, 1977. The statute authorizing imposition of such restriction had an effectivedate 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 asmodified.Chief Justice

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