NO. 83-155 

114 THE SUPREME COURT OF THE STATE OF MONTANA 

1933 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsHOWARD EDWARD GREETWELL, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Nineteenth Judicial District, 

In and for the County of Lincoln, 

The Ifonorable Robert ?I. Holter , Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Bon. Mike Greely, Attorney General, Helena, Montana 

William A. Douglas, County Attorney, Libby, Montana 

For Respondent: 

Scott B. Spencer, Libby, Montana 

Submitted on Briefs: August 4, 1383 

Decided: October 6, 1983 

Filed: OCT 6- '1983 

-- clerk 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an appeal of a conviction of two counts of 

aggravated assault following a jury trial in the Nineteenth 

Judicial District, the Honorable Robert H. Holter presiding. 

The appellant was sentenced to serve a period of ten years 

in the Montana State Prison on each count, sentences to run 

concurrently. In addition, each of the sentences were 

enhanced by a two-year term pursuant to section 46-18-221, 

MCA, due to the fact that a weapon was involved in the 

assaults. The appellant was designated a dangerous 

offender . 

The appellant and his family attended a Libby Logger 

Days carnival in Libby, Montana, on July 18, 1982. 

Appellant drove to the carnival in a 1973 two-door Pontiac 

which contained several guns which he was keeping, according 

to his testimony, because of a recent burglary of his home. 

Appellant testified that earlier in the day he had 

gotten into an altercation with Bob Precht and Randy Martin, 

a/k/a "Teardrop." At the time of this altercation, the 

appellant apparently pulled a pocketknife on "Teardrop" and 

he testified that "Teardrop" tried to pull a knife first. 

Fortunately, a deputy sheriff was summoned and managed to 

stop the argument and sent the appellant home. 

According to the appellant's testimony, they returned 

to the carnival about 6:00 p.m. at the request of his 
children. He testified that he and his wife stayed outside 

the carnival grounds while the children went in. At the 

time the children were returning to the car, the appellant 

testified he had a confrontation with "Teardrop" and that 

"Teardrop" stated he was going to get a gun. He testified 

that "Teardrop" ran off when the children arrived at the 

car. They then got into the car and started to drive off. 

The appellant testified that as he was driving through 

the gate to the carnival, he saw "Teardrop" with a gun 

pointed at him, and that his daughter Eva screamed at him, 

"Daddy, he's got a rifle." In addition, his son Howard, Jr. 

said, "He's got a rifle. Let's get out of here." He 

testified that he jumped out of his car, pulled his rifle 

out and at that time, he could see "Teardrop's" gun pointed 

at him. He further testified that he consciously pointed 

the gun only at "Teardrop." Shortly thereafter, a deputy 

sheriff arrived and took away the appellant's rifle. 

The State's witnesses tell a considerably different 

story. Michelle Taaffe is a thirty-year-old Libby resident 

and a mother of one child. On the evening of July 18, 1982, 

she was volunteering her time selling watermelons in a Girl 

Scout booth at the Libby Logger Days carnival, helping to 

raise money for a babysitting co-op. Camilla Leckrone, 

another State witness, is a thirteen-year-old eighth grader 

who attends Libby Junior High School. 

Mrs. Taaffe testified that at approximtely 7:00 p.m. 

she was getting ready to close down the watermelon stand. 

The stand was located near the entrance of the fairgrounds. 

Camilla Leckrone was walking out of the parking lot in the 

vicinity of the watermelon stand and at that time she 
testified she saw a scared, unarmed man running toward her, 

going toward the entrance to the fairgrounds. She 

recognized the man as a carnival worker named Randy Martin. 

At the same time, a car was coming from the same 

direction as Martin had been running from, and she testified 

it pulled directly in front of the watermelon stand. The 

car stopped and the appellant, Howard Greenwell, pushed a 

rifle out of the window of the car. She testified that the 

rifle was pointed at her. Mrs. Taaffe further testified 

that Randy Martin was running through the entrance of the 

fairgrounds when the defendant got out of the car with a 

rifle. Randy Martin had not yet reached a pickup parked in 

the carnival grounds and she testified that the appellant 

pointed his gun at her before Randy Martin left her line of 

sight. 

Testimony further indicates as the appellant got out 

of the car, he raised the rifle to his shoulder, looked Mrs. 

Taaffe right in the eyes and trained the rifle at her. Mrs. 

Taaffe testified that the rifle was held on her for several 

seconds and that it was leveled at her three times. She 

testified that she was afraid of being shot because it 

looked to her as though the appellant, who was very close to 

her, could shoot her and others around her. She was afraid 

of serious bodily harm. Testimony indicates that she was 

worried about the children around her and that she felt she 

should get the youngsters into a vehicle backed up against 

the watermelon stand and leave the place. She grabbed a 

friend's little girl and put her in the car and tried to 

protect a little girl who was standing to her left. This 

little girl was Camilla Leckrone. According to Mrs. Taaffe, 
Camilla was "petrif ied" and "couldn' t move. " Camilla "was 

crying, her face was all red, her hands were down at her 

sides, and she was just shaking." At that point, Mrs. 

Taaffe grabbed Camilla, put her in the back of the car and 

went directly to the police department. 

Camilla testified that as she was leaving the 

fairgrounds she saw a dark blue car approach her. The car 

stopped, the defendant got out of the car, waved a gun at 

the people, and pointed the gun directly at her head. She 

testified that the appellant held the gun into his 

shoulders, leveled the gun at her, and told her to "get the 

out of here." She said the defendant's eyes were 

looking at her while the rifle was leveled at her and that 

all of this happened at a distance of about twelve feet. In 

addition to the testimony of these two women, Vicky 

Ericksmoen, a friend who was with Camilla, testified that 

the appellant pointed the gun in the direction of Camilla 

and Mrs. Taaffe. Jean Richmond, another friend who was with 

Camilla, testified that the appellant pointed the gun at her 

for three seconds when she startled him. 

In addition to the testimony of the women, there was 

testimony by the law officers who were in the area. Don 

Bernall, a detective for the Lincoln County sheriff's 

department testified that he was off-duty and driving past 

the Logger Day's carnival after picking up his two children. 

He testified he saw the appellant yelling and waving his 

rifle in front of the crowd of people. Bernall, fearing for 

the safety of his two little boys who were in the car with 

him, pulled his car up the road, turned it off and ran back 

to the appellant's location. At that point, he observed 
another Lincoln County deputy sheriff, Clint Gassett, who 

had arrived on the scene about the same time and saw him 

grab the gun (which was pointed up in the air) away from the 

defendant, disarming him. The weapon was placed in 

Gassett's car where Bernall examined it and found it to be a 

British .303 rifle, which was loaded with a round in the 

chamber, additional rounds in the clip, and the safety was 

off. At that point, the appellant was placed under arrest 

and charged with three counts of aggravated assault, At the 

close of the evidence, the trial court granted the 

appellant's motion to dismiss count three, the aggravated 

assault charges involving Randy Martin. The trial judge 

denied motions to dismiss count one and two, those involving 

Mrs. Taaffe and Camilla Leckrone because there was 

sufficient evidence and therefore the matter should go to 

the jury. 

Two issues are presented: 

1. Is there sufficient substantial evidence to 

support the verdict; and 

2, Is the evidence consistent with any theory of 

innocence? 

The State notes that the appellant offers two 

inconsistent propositions for reversal: (1) a total lack of 

evidence that proves a culpable mental state; and, (2) the 

circumstantial evidence is as equally consonant with 

innocence as with guilt, therefore, mandating an acquittal. 

But since the appellant admitted that a weapon was involved 

and that both victims were apprehensive of serious bodily 

injury, the sole issue on appeal is whether the evidence 

supports the jury's findings that the appellant acted with 
the requisite mental state. 

It is the respondent's position that the appellant's 

intent was proven by the use of circumstantial evidence, and 

that the evidence relied on by the jury to convict under the 

facts here is susceptible of only one reasonable interpretation -- that the appellant knowingly or purposely 

caused a reasonable apprehension of serious bodily harm to 

the two victims. Finally, the State argues that the 

evidence is substantial and more than adequate to support 

the verdict. 

The statute delineates the offense: "a person commits 

the offense of aggravated assault if he purposely or 

knowingly causes reasonable apprehension of serious bodily 

injury in another by use of a weapon." Section 

This Court recently, in the case of State v. Starr 

(Mont. 1983), 664 P.2d 893, 40 St.Rep. 796, considered the 

statutory words of purposely and knowingly. We noted in 

that opinion: 

"Occasionally, this Court has referred to 

'specific intent' in discussing mental 

states since the adoption of the 1973 

Criminal Code. Parties and attorneys 

should not be misled. It is well to keep 

in mind the provisions of the Montana 

Criminal Code as explained by Essman, A 

----------- Primer on Mental state in the ~ontana 

Criminal Code of 1973. 37 Mont.L.Rev. 

"The Montana Code used only three 

classifications in evaluating the 

defendant's mental state: purposely, 

knowingly, and negligently. These mental 

state classifications are defined in 

relation to four objectively measurable 

conditions or occurrences: conduct, 

circumstances, facts, and result. 

However, all four criteria do not apply 

to each mental state. 'Purposely,' which 

means with a conscious objective, relates 
to conduct or result. 'Knowingly,' 

defined as 'awareness,' relates to 

conduct, circumstances, facts or result. 

'Negligently,' relates only to 

circumstances and result, thus two 

functions are performed in analyzing the 

statute which describes an offense. 

First, determining which mental state 

must be proved, and second, determining 

to which of the four conditions or 

occurrences the mental states relate." 

664 P.2d at 897-8. 

In this case, whether the appellant had the requisite 

"specific intent" as set forth by our stautes to assault the 

victims is a question for the jury. The problem of proving 

intent was considered by this Court in State v. Gone (1978), 

179 Mont. 271 at 278, 587 P.2d 1291 at 1296: 

". . . 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." 

State v. Pascgo (1977), 173 Mont. 121, 

566 P.2d 802, 805, citing State v. Cooper 

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

Here, the State's direct evidence proved that the 

appellant acted with a culpable mental state, and it was not 

necessary to rely on circumstantial evidence. 

It is the appellant's position that a reasonable 

interpretation of the evidence given at trial, is that the 

appellant did not point the gun at the victims. He 

testified that any assault against Mrs. Taaffe and Miss 

Leckrone were unintentional and excusable. The other 

interpretation of the evidence is that the defense was not 

established, the assaults upon the victims were deliberate 

and were not excusable. Under this view, the circumstances 

of the assault clearly prove that the appellant acted with 

the requisite mental state. This interpretation established 
the appellant's guilt. The appellant argues that the jury 

was bound to accept the first view and reject the second, 

simply because the appellant would be found innocent under 

the former and guilty under the latter. 

We have long held that it is up to the jury to resolve 

conflicts of evidence. It is also up to the jury to give 

some testimony more weight than others or to discount some 

testimony altogether. On appeal, we have held that 

presumptions change. This Court is not a judge of evidence, 

the jury is. The evidence is weighed on appeal in a light 

most favorable to the State, and application of the rule to 

circumstantial evidence does not change that mandate. 

Our standard of review on criminal case on appeal is 

well established. The evidence is examined to determine if 

the verdict is supported by substantial evidence. See, 

State v. Merseal (1975), 167 Mont. 412 at 415, 538 P.2d 1366 

at 1368; Pascgo, 173 Mont. at 125, 566 P.2d at 805. In 

State v. Fitzpatrick (1973), 163 Mont. 220 at 226, 516 P.2d 

605 at 609, we noted that this Court will not act as a trier 

of facts. If there is substantial evidence to support a 

verdict, it will stand. 

A careful and thorough consideration of the record 

convinces us that there is more than sufficient evidence to 

support the verdict of the jury and the judgment entered 

thereon. The judgment of the District Court is affirmed. 

We concur: 
Chief Justice -