No. 32-481 

IN THE SUP3EME COURT OF THE STATE OF PIONTASA 

1983 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsTHOMAS VAN HAELE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Robert H. Wilson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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, County Attorney, Billings, Montana 

---.-----.- 

Submitted: September 12, 1983 

~ecided: December 12, 1983 
The 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 five minutes. Robert Westfall, who managed 

the business with his wife, Mae, agreed to let Van Haele in, 

and in return, Van Haele gave him five dollars. 

The Westfalls had earlier allowed another tenant and 

friend of theirs, Tim Bender, onto the premises 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, she went 

to find his cubicle. 

Mae Westfall testified that as she approached Van 

Haele's cubicle she noticed the padlock 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 my 
face." She got behind the door and Van 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 disarm Van 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 see him. 

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 on November 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-e presents the following issues on 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 

requisite proof. 

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 August 
23, 1982 (See State v. 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 saw him 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 for help. 

As for his own actions, Van Haele contends that he was 

in his cubicle when the door was 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 that he pointed the gun at Mae Westfall. 

The State contends that the jury duly consid.ered the 

conflicting evidence presented to them in relation to whether 

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 fact must be determined solely 
by 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 is whether the verdict 

is supported by substa.ntia1 evidence. Substantial evidence 

is "such relevant evidence as a reasonable mind 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 light most favorable 

to the State. Pendergrass, 179 Mont. at 118; Merseal, 167 

Mont. at 415-6. 

At trial, the State produced testimony that Mae Westfall 

opened the door to Van Haele's cubicle and found a loaded .38 

pistol pointed at her face from a dista.nce of one foot away. 

Mae Westfall testified that she was scared and that she felt 

terrible as she was looking at the gun, so terrible, in fact, 

that she couldn't even move. 

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 

intentionally point the gun a.t Westfall, 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 the 
witnesses it wished 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 

caused Mae Westfall reasonable apprehension of serious bodily 

injury. 

In conju-nction with 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), 172 Mont. 552, 562 

P.2d 1129. As the issue was not raised in the trial court, 

we will 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 instruction was necessary 
in order for the jury to understand his defense based on the 

failure of the prosecution to establish the requisite proof. 

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 'not guilty;'" 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 defendant Is ability to argue 

his theory to the jury was not impaired. (Emphasis added.) 

This Court has consistently held that the District Court 

need not give repetitious instructions nor instruct on every 

nuance of a theory of defense. State v. Graves (Mont. 1981), 

622 P.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 instructions that the 

State was 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-, 37 
St.Rep. 1313, where this Court held that a defendant is 

entitled to have his sentence pred-icated on 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 conviction and the sentence would not have 

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 that particular 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 to Van 

Haele and his sentence is upheld. 

The judgment and. sentence are affirmed. 

District. Jud.ge, Sitting 

for Mr. Justice Frank B. 

Morrison., Jr. 
We Concur: 

%A&$&&+) 

Chief Jus'tkce 

Justices 

Mr. Justice John C. Sheehy dissents and will file a written 

dissent later. 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

82-481 

THE STATE OF MONTANA, 

Plaintiff/Respondent, 

VS. 

THOMAS VAN HAELE, 

Defendant/Appellant. 

DISSENT OF MR. JUSTICE JOHN C. SHEEHY 

Opinion filed: December 12, 1983 

Dissent filed: January 11, 1984 

CLERK OF SUPREME COURT 

SPATE OF MONTANA 
Justice John C. Sheehv dissenting: 

On January 26, 1981, Thomas Van Haele, under the nane of 

Bill Hayes, entered into a written rental agreement with 

Shurgard Mini Storage, at 5504 King Ave. East, near Billings, 

Montana. The subject of the rental was a storage unit in one 

of the buildings of Shurgard. The unit itself was 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) and Van Haele (tenant) 

are defined by the written rental agreement. It is aareed in 

the instrument that Shurgard is not engaged in storing goods 

or operating a warehouse, but is "simply a landlord renting a 

storage unit in which tenants can store items of personal 

property owned by tenants." It is further provided that 

"1andl.ord will 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 safeguard whatever 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. 

The written agreement contains no provisions that fix or 

limit the times at which the tenant can come to the storage 

unit for whatever purposes he may have. 
It is obvicus that Shurgard and Van Haele entered into a 

contract of hiring. This is a contract by 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, as a matter of statute, the landlord 

hinds himself "to secure to the hirer the quite possession of 

the thing hired." Section 70-1-602, MCA. 

Mae Frances Westfall, 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 right to enter the cubicle rented to Van 

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 

therefore had the status of an interloper when she opened the 

door of the cubicle, while Van Haele was inside, to find him 

crouching inside with a gun in his hand. He had to crouch; 

the height of the cubicle would not permit standing up. 

Tim Bender was present when the Mae Westfall came to Van 

Haele's cubicle. Each of them testified that the she knocked 

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 at Mrs. Westfall. Bender claimed he waved 

it at him also. When Van Haele came out of the cubicle, 

Bender grabbed the arm that held the gun and tried to wrestle 

the gun away from Van Haele, but he was unable to do so. So 

Bender let go of Van Haele's arm and went back to his own 

bin. Van Haele thereupon left the building. 
Upon opening the door, Mae Westfall immediately said to 

Van Haele, "What in hell are you doing with that gun?" He 

responded, "Who in hell are you?" 

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 felonious aggravated 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 a weapon. 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 it was his conscious object to 

raise reasonable apprehension of serious bodily injury in Mae 

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 serious bodily injury. The proof 

is totally lacking in these two aspects. 

It is further lacking in any testimony that Mae Westfall 

was in fear of serious bodily injury. She did not so 

testify. 

It would be improper to convict Van Haele simply because 

he was standing or crouching in his cubicle, while holding a 

gun. He has a constitutional right to keep or bear arms in 
defense of his 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.