No. 32-481 IN THE SUP3EME COURT OF THE STATE OF PIONTASA 1983

THE STATEOF MONTANA, Plaintiff and Respondent,

-vsTHOMASVAN HAELE, DefendantandAppellant.

APPEAL FROM: District Court of the Thirteenth JudicialDistrict, In and for the County of Yellowstone, TheHonorable Robert

### H. Wilson, Judgepresiding.
COUNSEL OF RECORD: ForAppellant: Wade J. Dahood argued, Anaconda,Montana

For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Chris Tweeten argued,Asst. Attorney General,Helena Harold F. Hanser,CountyAttorney, Billings,Montana

---.-----.- Submitted: September 12, 1983 ~ecided:December 12, 1983The Hon. Chan Ettien delivered the Opinion of the Court.

The defendant, Thomas Van Haele, appeals from his conviction of aggravated assault, a felony, in the District Court of the Thirteenth Judicial District, Yellowstone County. We affirm the conviction. The incident leading to Van Haele's arrest and ultimate conviction occurred on the premises of Shur-gard Mini Storage, a rental warehouse business in Billings, Montana. At closing time on July 31, 1981,Van Haele, using the alias

"Bill Hayes," appeared at the gate leading into the storage buildings and asked if he could have access to his cubicle for approximately fiveminutes. RobertWestfall, whomanaged the business with hiswife,Mae, agreed to letVan Haele in, and in return,Van Haele gave him fivedollars. The Westfalls had earlier allowed another tenant and friend of theirs,Tim Bender,onto thepremises and had given him permission to lock up when he left. Now that Van Haele
was also on the premises, Mae Westfall went to find Bender and tell him not to lock the other tenant in. She found Bender and asked him if he had seen the other tenant. Bender replied "yes," and told her where Van Haele's cubicle was located. Then,wanting to tell Van Haele to hurry, shewent to find his cubicle. Mae Westfall testified that as she approached Van Haele's cubicle shenoticed thepadlock had been removed from the door but the door itself was shut. She knocked on the door and said, "hey you." There was no response, so she knocked on the door again and hollered, "hey you in there." Again there was no response and she opened the door. She then saw Van Haele "sitting on the floor with a gun in myface." She gotbehind the door andVan Haele came out of the cubicle. At this time, Bender, who had followed Mae Westfall to Van Haele's cubicle, asked to look at the gun to see if it
was loaded. Van Haele replied, "you're damned right it's loaded" and Bender attempted to grab the gun. When he could not easily disarmVan Haele, Bender left and returned to his
own cubicle. Mae Westfall had already fled the area. Van Haele stopped by the office as he was leaving and attempted to speak to Mae Westfall but was told by Robert Westfall that she refused to seehim. On August 11, 1981, the county attorney's office filed charges against Van Haele for aggravated assault. He appeared before the court the same dav and pled not guilty. Trial began onNovember 10, 1981, and the iury convicted Van Haele. He was sentenced to serve ten years in the Montana State Prison with five years suspended. Van Hael-epresents the following issueson appeal: 1. Whether the evidence presented at trial is sufficient as a matter of law to warrant and sustain the verdict of guilty of aggravated assault. 2. Whether the District Court erred in refusing defendant's instruction explaining the defense of reasonable doubt and failure of the prosecution to establish the requisiteproof. 3. Whether the sentence of ten years should be set aside and a new hearing on sentence be conducted since the trial court considered the conviction and fifteen year sentence of Thomas Van Haele for the crime of possession of dangerous drugs with intent to sell which arose out of the instant case and which was reversed by this Court on August23, 1982 (SeeStatev. Van Eaele (Plont. 1980), 649 P.2d 1311, 39 St.Rep. 1586). With regard to the first issue,Van Haele contends that the evidence fails as a matter of 1.aw to support the jury verdict of guilty on the charge of aggravated assault. More specifically, he contends that: 1) the evidence fails to show that Mae Westfall was placed in reasonable apprehension of serious bodily injury as a result of his actions; and 2) the evidence fails to show that he acted purposely or knowingly in causing that result. Van Haele contends that Mae Westfall was not fearful or apprehensive when she opened the door and sawhim with a gun because she immediately said, "what the hell are you doing with that gun?" In addition,he points out that she did not
scream or cry forhelp. As for his own actions,Van Haele contends that he was in his cubiclewhen the doorwas suddenly opened, surprising him. He contends that he did not knowingly or purposely point the gun at any person, but because of the height of the cubicle, only four feet, he was forced to be in a stooped position, and in exiting from a kneeling position, it may have appeared thathe pointed the gun at Mae Westfall. The State contends that the jury duly consid.ered the conflictingevidence presented to them in relation towhether Mae Westfall was placed in reasonable apprehension and whether Van Haele acted purposely or knowingly,and that they weighed this evidence before reaching their verdict. Therefore, they contend that this Court should be reluctant to substitute its judgment for that of the jury. It has been recognized by this Court as a fundamental rule of law that questions of factmust be determined solelyby the jury, and that given a certain legal minimum of evidence, this Court, on review, will not substitute its judgment for that of the jury. State v. Pendergrass (1978), 179 Mont. 106, 118, 586 P.2d 691, 697-8; State v. Merseal (1975), 167 Mont. 412, 415, 538 P.2d 1366, 1367-8,and cases cited therein. The standard of legal sufficiency iswhether the verdict is supported by substa.ntia1evidence. Substantial evidence is "such relevant evidence as a reasonablemind might accept
as adequate to support a conclusion." In reviewing the evidence to determine whether substantial evidence exists, this Court will view the evidence in the lightmost favorable to the State. Pendergrass, 179 Mont. at 118; Merseal, 167 Mont. at 415-6. At trial, the Stateproduced testimony thatMae Westfall opened the door toVan Haele's cubicle and found a loaded .38 pistol pointed at her face from a dista.nceof one foot away. Mae Westfall testified that shewas scared and that she felt terrible as shewas looking at the gun, so terrible, in fact, that she couldn'tevenmove. Van Haele,on the other hand,never offered Mae Westfall
an innocent explana.tion for his conduct when he had the chance to do so. When Mae Westfall asked him what he was doing with a gun, his only reply was, "who in the hell are you?" In addition, when Van Haele stopped at the office on his way out, Robert Westfall testified that Van Haele's attitude was not contrite, but rather was "belligerent." Although Van Haele testified that he did not intentionallypoint the gun a.tWestfall, and that he had no intention to frighten her, the jury was free to consider all evidence presented and to pick and choose which of thewitnesses itwished to believe. State v. Swazio (1977), 173 Mont. 440, 445, 568 P.2d 124, 127, citing State v. Fitzpatrick (1973), 163 Mont. 220, 226, 516 P.2d 605, 609. The jury may also use circumstantial evidence to determine the existence of 

### a particular mental state. That is, thev may infer the mental state from what the defendant does and says and from all the facts and circumstances involved. State v. Pierce (Mont. 19821, 647 P.2d 847, 850-51, 39 St-Rep. 1205, 1209. Based on the foregoing principl-es,we find that the record contains substantial evidence to support the jury's finding that Van Haele purposely or knowingly causedMaeWestfall reasonable apprehension of seriousbodily injury. In conju-nctionwith this issue,Van Haele contends that
even if this Court should find substantial evidence to support the jury's verdict, the conviction is still improper
as a matter of law. Van Haele argues that under section 45-3-104, MCA, he had a right to use force to defend his property. However, a scrutiny of the record reveals that the issue of justification was never raised at the trial level. It is a well settled rule that on appeal, this Court will consider for review only those questions raised in the trial court. State v. Campbell (Mont. 1981), 622 P.2d 200, 38 St.Rep. 19; State v. Armstrong (1977),172Mont. 552, 562 P.2d 1129. As the issue was not raised in the trial court,
wewill not consider it further on appeal. As his next issue,Van Haele contends that his proposed instruction no. 7 explaining reasonable doubt and the prosecution's burden of proof should have been given to the jury. Van Haele contends that the instructionwas necessaryin order for the jury to understand his defense based on the failure of the prosecution to establish the requisiteproof. The State contends that the instruction was properly refused by the trial court in that: 1) the last sentence of the instruction told the jury "unless you find beyond a reasonable doubt that the defendant is - not guilty of the offense charged, your verdict should he 'notguilty;'" which is an incorrect statement of law, and; 2) the substance of the refused instruction was covered by other instructions given by the court, so that the defendantIs ability to argue his theory to the jury was not impaired. (Emphasisadded.) This Courthas consistently held that the District Court need not give repetitious instructions nor instruct on every nuance of a theory of defense. Statev. Graves (Mont.1981), 622P.2d 203, 210, 38 St.Rep. 9,16,and cases cited therein. The court gave nine instructions discussing burden of proof and presumption of innocence, including instructionsthat the Statewas required to prove every element of the charge; that the prosecution bore the burden of proof; that the defendant is presumed innocent; and that in case of reasonable doubt the defendant is entitled to an acquittal. The important elements of the refused instruction were contained in the other instructions given by the District Court, therefore it
was not error for the District Court to refuse Van Haelels proposed instruction no. 7 or a corrected version of the instruction. Finally, Van Haele contends that the District Court erred in considering a drug charge on which he had been convicted,but was later reversed by this Court in State v. Van Haele (Mont.1982), 649 P.2d 1311, 39 St-.Rep.1586. Van Haele cites State v. Olsen (Mont. 1980), 614 P.2d 1061-,37St.Rep. 1313, where this Court held that a defendant is entitled to have his sentence pred-icatedon substantially correct information, and where improper matters are considered by the sentencing court, a defendant has a right to be resentenced. However, this Court has also recognized that if it is obvious from the record that the judge did not rely on the infirm convictionand the sentencewould nothave been different had the judge disregarded the prior conviction, this Court will find no prejudice to the defendant. Fitzpatrick

### v. State (Mont. 1981), 638~.2d 1002,

At sentencing,the District Court stated:

"So far as the charge of which you were found guilty in this Court, you have been sentenced on that drug charge and I think that sentence must stand on its own in thatparticular case." The court made no further reference to the drug case. The judgment reflects that the court based its sentence
on the facts set forth in the presentence report, the defendant's past history, and his chemical dependency, not the drug conviction. Therefore,we find no prejudice toVan Haele and his sentence is upheld. The judgment and.sentenceare affirmed.

District.Jud.ge,Sitting forMr. Justice Frank B. Morrison.,Jr.WeConcur:
%A&$&&+) Chief Jus'tkce

Justices

Mr. JusticeJohn C. Sheehy dissentsand willfilea written dissentlater.IN THE SUPREME COURT OF THE STATE OF MONTANA

82-481

THE STATE OF MONTANA, Plaintiff/Respondent,
VS. THOMASVAN HAELE, Defendant/Appellant.

DISSENT OF MR. JUSTICE JOHN C. SHEEHY
Opinion filed: December 12, 1983 Dissent filed: January 11, 1984

CLERKOFSUPREMECOURT SPATEOF MONTANA

### Justice John C. 

### Sheehvdissenting: On January 26, 1981,

### ThomasVan Haele,under the nane of Bill Hayes, entered into a written rental agreement with Shurgard Mini Storage,at 5504

### KingAve. East,near Billings, Montana. The subject of the rentalwas a storageunit in one of the buildings of Shurgard. The unit itselfwas small in dimensions, 5 

### feet by 5 

### feet in floor area and about 4 

### feet in height. Such cubicles are used for the storage of personal property. The rights of Shurgard (landlord)andVan Haele (tenant)
are defined by thewritten rentalagreement. Itis aareed in the instrument that Shurgard is not engaged in storing goods or operatingawarehouse, but is "simplya landlord renting a storage unit in which tenants can store items of personal property owned by tenants." It is further provided that "1andl.ordwill not maintain supervision or control over the storage unit rented herein, but said unit is under the exclusive control of tenant and tenant must take whatever steps are necessary to safeguardwhatever property is stored in the unit." It is the duty of the tenant to buy a lock if he wishes to maintain a locked unit. The landlord has a right to inspect the unit but even that is fenced around: "Tenant will allow landlord free access at all reasonable times to the unit for the purpose of inspection, making repairs, additions or alterations to the unit that may be required under the landlord

## 's obligations contained" in the instrument. Thewritten agreement containsnoprovisions that fix or limit the times at which the tenant can come to the storage unit for whateverpurposes hemay have.Itisobvicus that Shurgard and Van Haele entered intoa contractof hiring. This isa contractby which one gives to another the temporary possession and use of property, other than money, for reward, and the tenant agrees to return the
same to the landlord at a future time. Section 70-1-601, MCA. In such contracts, asa matter of statute, the landlord hinds himself "tosecure tothehirer thequitepossession of the thinghired." Section 70-1-602, MCA. Mae FrancesWestfall, and her husband Robert F. Westfall apparently were hired as caretakers by Shurgard for the rental unit premises. As a representative of the landlord, Mrs. Westfall's only righttoenter the cubiclerented toVan Haele was for the reasons listed in the agreement, for the purpose of inspection, or to make alterations or repairs. She had no right to enter for any other purpose. She thereforehad the statusof an interloperwhen she opened the door of the cubicle, while Van Haele was inside, to find him crouching inside with a gun in his hand. Hehad tocrouch; theheight of the cubiclewould not permit standingup. TimBender was presentwhen theMae Westfall came toVan Haele's cubicle. Each of them testified thatthe sheknocked
on the door 2 or 3 times, that there was no answer and that she thereupon opened the door which was unlocked. When she opened the door, the defendant was inside hol-ding a handgun and it was pointed atMrs. Westfall. Bender claimed he waved it athim also. When Van Haele came out of the cubicle, Bender grabbed the arm thatheld the gun and triedtowrestle the gun away from Van Haele, but he was unable todo so. So Bender let go of Van Haele's arm and went back to his own bin. Van Haele thereupon leftthebuilding.

### Upon opening the door, MaeWestfall immediately said to Van Haele, "What in hell are you doing with that gun?" He responded, "Who in hell areyou?" The only testimony as to any effect upon Mae Westfall
was that she was "scared." She left the premises immediately. It is upon this evidence that the defendant has been convicted of feloniousaggravated assault. Under section 45-5-202, the defendant is guilty of aggravated assault only if he purposely or knowingly caused reasonable apprehension of serious bodily injury in Mae Westfall by use of aweapon. Van Haele would be justified in the use of threat of force against her to the extent that 

### he reasonably believed that such was necessary to prevent or terminate her unlawful entry into his occupied structure, section 45-3-103,MCA. 

### Jn my opinion, the evidence fails completely to establish an offense of aggravated assault. Van Haele could only have acted purposely if itwas his conscious object to raise reasonableapprehension of seriousbodily injury inMae Westfall by use of the weapon. Section 45-2-101(15), MCA. 

### He could act "knowingly" with respect to 

### aggravated assault if he was aware that his conduct would raise in her a reasonable apprehension of seriousbodily injury. The proof is totally lacking in these two aspects. It is further lacking in any testimony thatMae Westfall
was in fear of serious bodily injury. She did not so testify. Itwould be improper to convictVan Haele simplybecause he was standing or crouching in his cubicle,while holding a gun. He has a constitutional right to keep or bear arms indefense ofhis own home, person and property, which right may not be called into question, Article 11, section 12, (1972) Mont. Constitution. In my opinion, this incident was ballooned all out of proportion and the sentence imposed is harsh in the extreme.