No. 94-487

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Respondent,

v.

DUSTY DENNIS BROWN,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

David E. Stenerson, Hamilton, Montana

Kirk Krutilla, Superior, Montana

For Respondent:

Honorable Joseph P. Mazurek, Attorney General;

Kathy Seeley, Assistant Attorney General, Helena,

Montana

Daniel J. Safransky, Deputy County Attorney,

Missoula, Montana

Filed:

Submitted on Briefs: March 10, 1995

Decided: April 6, 1995

Clejrk
Chief Justice J. A. Turnage delivered the Opinion of the Court.

In a trial before the District Court for the Fourth Judicial

District, Missoula County, a jury found Dusty Dennis Brown guilty

of negligent endangerment. He appeals. We affirm.

The issue is whether the District Court erred in denying

Brown's motion for a directed verdict.

On August 3, 1993, Janet Hatt was driving on U.S. Highway 93

northbound from Missoula, Montana, with her two young daughters as

passengers. Hatt heard a gunshot behind her. When she looked in

the rearview mirror, she saw a large mustard-yellow car following

her vehicle. The arm and hand of the front-seat passenger, a man,

were extended from the window on that side, holding a gun.

Hatt saw the shooter fire the gun three more times. It

appeared to her that the shots were being fired at an older blue

car which had pulled over at the side of the road. Although the

gun was not aimed at her, she was frightened for herself and her

daughters.

Speeding up, Hatt looked for a safe place to get off the road.

She stopped at Joe's Smoke Ring, a business located about a mile

from where the shooting occurred. The mustard-yellow car passed

without slowing. Hatt ran into the business and called the 911

dispatcher to notify authorities of what she had seen and heard.

She then drove on toward her destination.

Six minutes later, a Montana Highway Patrol officer stopped a

mustard-yellow Cadillac about six miles north of Joe's Smoke Ring.

Hatt, passing by, saw them. She pulled over and told the officer

2
that the Cadillac was the vehicle from which the shots had been

fired.

Dusty Dennis Brown was sitting in the front passenger seat of

the Cadillac. TWO guns, a 9 mm semi-automatic pistol and an M-l

carbine, were in the back seat of the car, along with ammunition

for both. The magazine of the pistol, which had been fired since

it was last cleaned, was empty. A spent 9 mm casing was found on

the floor on the passenger side of the front seat. Brown denied

shooting from the Cadillac. The driver and two women riding in the

back seat of the car denied knowledge of any shots being fired.

Brown was charged with criminal endangerment, a felony. The

jury was instructed on negligent endangerment, a misdemeanor, as a

lesser included offense. The jury acquitted Brown of criminal

endangerment but found him guilty of negligent endangerment.

Did the District Court err in denying Brown's motion for a

directed verdict?

Our standard of review of a denial of a motion for a directed

verdict is whether, after reviewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the offense beyond a reasonable

doubt. State v. Mummey (19941, 264 Mont. 272, 276, 871 P.2d 868,

870.

Section 45-5-208(l), MCA, defines negligent endangerment:

A person who negligently engages in conduct that creates

a substantial risk of death or serious bodily injury to

another commits the offense of negligent endangerment.

3
Brown's argument on appeal relates to only one aspect of the

State's case. According to Brown, § 45-s-208, MCA, requires proof

of a substantial risk of death or serious bodily injury to an

identified individual. Brown contends that the State failed to

produce, as a necessary element of proof for his conviction,

testimony by either the occupants of the blue car or occupants of

the houses along Highway 93 that they were put at risk of death or

serious bodily injury as a result of his conduct.

In creating the statutory offense of negligent endangerment,

Montana's legislature also enacted § 45-5-207, MCA, which defines

criminal endangerment, a felony requiring the mental state of

"knowingly." Ch. 196, L. 1987. The intent was to "plug a hole in

the criminal law" and address conduct such as placing poison into

aspirin in a store. Minutes of the Montana House Judiciary

Committee, February 5, 1987.

Brown lists Montana cases involving prosecutions under the

endangerment statutes, and, in each case, he identifies specific

individuals put at risk by the conduct charged as criminal. Other

than that list of cases, Brown cites no authority for his "identified individual" argument. More importantly, he cites no authority

for the proposition that, in a prosecution for negligent endangerment, the individual put at risk must personally testify at trial

in support of the State's case.

Hatt testified that there were several homes along Highway 93

on the side of the highway and in the area toward which she saw

shots fired. Her testimony was supported by photographs of the

4
area, taken by a Missoula County Sheriff's Department officer with

whom Hatt returned to the scene of the crime. Hatt's testimony

further identified the occupant or occupants of the blue car as

persons put at risk by the shooting. Additionally, we conclude

that a rational trier of fact could have found beyond a reasonable

doubt that Hatt and her daughters were put at risk of death or

serious bodily injury from the gun fired from the Cadillac as it

proceeded down the highway.

We hold that the State presented sufficient evidence of "a

substantial risk of death or serious bodily injury to another" to

allow this case to be submitted to the jury. We hold that the

court did not err in denying Brown's motion for a directed verdict.

Affirmed.

We concur:

/BG. i

Chief Justice
I hereby certify that the following certified order was sent by United States mail, prepaid,

. .

foilowing named:

David E. Stenerson

Attorney At Law

Box 1667

Hamilton MT 59840-1667

KIRK KRUTILLA

P.O. Box 724

Superior, MT 59872

Hon. Joseph P. Mazurek, Attorney General

Kathey Seeley, Assistant

215 N. Sanders

Helena MT 59620

Daniel J. Safransky

Deputy County Attorney

Missoula County Courthouse

Missouia MT 59802

IZD SMITH

r

STATE OF MONTANA

ZLERK OF THE SUPREME COURT

By:

to the