No 

No. 97-332

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 265

STATE OF MONTANA,

Plaintiff and Respondent, 

v.

VINCENT MARTINEZ, 

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Maurice R. Colberg, Jr., Judge presiding.

COUNSEL OF RECORD:

For Appellant:

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William A. D'Alton, Deputy Public Defender, Billings, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Pam Collins, Assistant Attorney General, Helena, Montana; Dennis 

Paxinos, Yellowstone County Attorney, Billings, Montana

Submitted on Briefs: July 2, 1998

Decided: November 5, 1998

Filed:

__________________________________________

Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

¶1. Vincent Martinez (Martinez) appeals from the judgment entered by the 

Thirteenth Judicial District Court, Yellowstone County, on a jury verdict finding 

him guilty of felony assault and criminal endangerment. We affirm.

¶2. We address the following issues:

¶3. 1. Did the District Court err in refusing Martinez's proposed jury instruction on 

misdemeanor assault as a lesser included offense of felony assault?

¶4. 2. Did the District Court err in refusing Martinez's proposed jury instruction on 

negligent endangerment as a lesser included offense of criminal endangerment?

¶5. 3. Did the District Court abuse its discretion when it denied Martinez's motion 

for a continuance on the day of trial?

BACKGROUND

¶6. On the evening of December 30, 1995, Jason Gillespie (Gillespie) and three of his 

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friends were out driving around in Billings, Montana. Gillespie eventually decided to 

go home and had his friends return him to the house where he had left his car. When 

they pulled up to the house, they observed Martinez and Chad Peak (Peak) fighting 

in the front yard. While his friends went into the house, Gillespie stood next to his 

parked car and watched the fight. Peak eventually disengaged from the fight, left the 

yard and started running down the street. Gillespie then observed Martinez pull 

a .22 caliber handgun out from underneath his clothing, aim the gun toward Peak 

and fire a shot.

¶7. After firing at Peak, Martinez turned, pointed the gun at Gillespie and told him 

to get into Martinez's nearby truck. Gillespie did so and Martinez drove off with 

Gillespie toward Laurel, Montana, at a high rate of speed. Upon reaching Laurel, 

Martinez stopped in the Pelican Truck Stop parking lot for a short time, then drove 

to a trailer park where Dan Sisk (Sisk) lived. Martinez got out of the truck, told 

Gillespie to stay where he was and went into Sisk's garage. While Martinez was in 

the garage talking to Sisk, Gillespie climbed out the truck's passenger-side window, 

ran to a neighboring trailer and called 911. Officers from the Laurel police 

department and the Yellowstone County sheriff's department arrived shortly 

thereafter and, after a brief high-speed chase, arrested Martinez in the Pelican Truck 

Stop parking lot.

¶8. Martinez was charged by amended information in the District Court with the 

offenses of kidnaping, a felony, in violation of § 45-5-302, MCA; felony assault, in 

violation of § 45-5-202, MCA; criminal possession of dangerous drugs, a felony, in 

violation of § 45-9-102, MCA; and criminal endangerment, a felony, in violation of § 

45-5-207, MCA. The criminal possession of dangerous drugs charge subsequently 

was dismissed and a jury trial was held on the remaining three counts. The jury 

found Martinez not guilty of kidnaping and guilty of both felony assault and criminal 

endangerment. The District Court sentenced Martinez and entered judgment and 

Martinez appeals.

DISCUSSION

¶9. 1. Did the District Court err in refusing Martinez's proposed jury instruction on 

misdemeanor assault as a lesser included offense of felony assault?

¶10. A criminal defendant is entitled to an instruction on a lesser included offense if 

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the jury, in light of the evidence presented, could be warranted in finding the 

defendant guilty of the lesser, rather than the greater, offense. Section 46-16-607(2), 

MCA; State v. Fisch (1994), 266 Mont. 520, 522, 881 P.2d 626, 628. Two criteria must 

be met before a defendant is entitled to a lesser included offense instruction. First, 

the offense must actually constitute a lesser included offense of the offense charged, 

and, second, there must be sufficient evidence to support the included offense 

instruction. Fisch, 266 Mont. at 522, 881 P.2d at 628. Furthermore, although a 

defendant is entitled to jury instructions on every issue or theory having support in 

the evidence, a lesser included offense instruction is not supported by the evidence 

where the defendant's evidence or theory, if believed, would require an acquittal. 

State v. Schmalz, 1998 MT 210, ¶23, ___ P.2d ___, ¶23, 55 St. Rep. 889, ¶23. In this 

case, because we conclude that the evidence did not support Martinez's proposed 

instruction, we need not address whether misdemeanor assault is a lesser included 

offense of felony assault.

¶11. Martinez was charged with felony assault under § 45-5-202(2)(b), MCA, for 

purposely or knowingly causing reasonable apprehension of serious bodily injury by 

use of a weapon when he pointed the handgun at Gillespie. At trial, Gillespie was the 

prosecution's only witness on the felony assault charge. Gillespie testified that, when 

Peak began running down the street, Martinez turned to him, jabbed him in the 

chest with the gun, called him a bastard for not having helped Martinez in the fight 

with Peak and told him that Martinez would "get him next." According to Gillespie, 

Martinez then fired the gun at Peak, turned back to Gillespie, pointed the gun at his 

head or chest and told him to get into Martinez's truck. Gillespie further testified 

that, when Martinez pointed the gun at him, he was in fear for his life because he 

thought Martinez would shoot him. Martinez did not testify on his own behalf to 

controvert Gillespie's version of what happened. Consequently, Gillespie's testimony 

was the only evidence supporting the felony assault charge.

¶12. Martinez's theory at trial was that Gillespie was not a credible witness. On crossexamination of Gillespie, Martinez's counsel established a number of inconsistencies 

between Gillespie's trial testimony and his previous statements to law enforcement 

officers regarding the events of December 30, 1995. For example, Gillespie gave 

differing descriptions of the manner in which Martinez pulled out the gun and from 

what part of his clothing Martinez withdrew the gun. Further, Gillespie was unclear 

as to whether Martinez pointed the gun at his head, his chest or some other part of 

his body. Defense counsel also elicited admissions from Gillespie that he had lied to 

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law enforcement in various aspects of his prior statements, previously had been 

addicted to methamphetamine and had smoked marijuana on the night in question.

¶13. During settlement of jury instructions, Martinez's counsel offered a proposed 

jury instruction that misdemeanor assault as defined in § 45-5-201(1)(d), MCA, is a 

lesser included offense of the felony assault with which Martinez was charged. 

Section 45-5-201(1)(d), MCA, provides that a person commits the offense of 

misdemeanor assault if he or she "purposely or knowingly causes reasonable 

apprehension of bodily injury in another." The District Court refused to give the 

proposed misdemeanor assault instruction and Martinez contends that the court 

erred. 

¶14. Martinez argues that there was sufficient evidence before the jury to warrant an 

instruction on misdemeanor assault. His argument is premised on his contention that 

Gillespie was not a credible witness and, therefore, that the jury reasonably could 

have discounted Gillespie's testimony as to the manner in which Martinez used the 

gun and found that the gun was not a factor in the assault. Accordingly, urges 

Martinez, the jury could have determined that the "with a weapon" element of 

felony assault under § 45-5-202(2)(b), MCA, had not been established and that 

Martinez committed only misdemeanor assault by putting Gillespie in reasonable 

apprehension of bodily injury.

¶15. As discussed above, Gillespie provided the only testimony at trial regarding the 

specific events underlying the felony assault charge. The only other eyewitness to the 

events was Martinez, and he did not testify. As a result, if the jury had discounted 

Gillespie's testimony--as Martinez asserts it should have--there would have been no 

evidence at all in support of an assault charge. The absence of evidence establishing 

the elements of a criminal charge supports a verdict of acquittal. See State v. 

Mergenthaler (1994), 263 Mont. 198, 203, 868 P.2d 560, 562-63. Moreover, a lesser 

included offense instruction is not supported by the evidence where the defendant's 

evidence or theory, if believed, would require an acquittal. Schmalz, ¶23. As a result, 

we conclude that, under Martinez's theory, the evidence before the jury did not 

support an instruction on misdemeanor assault. Therefore, we hold that the District 

Court did not err in refusing Martinez's proposed jury instruction on misdemeanor 

assault.

¶16. 2. Did the District Court err in refusing Martinez's proposed jury instruction on 

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negligent endangerment as a lesser included offense of criminal endangerment?

¶17. Martinez also was charged with criminal endangerment, a felony, in violation of 

§ 45-5-207, MCA, for knowingly engaging in conduct which created a substantial risk 

of death or serious bodily injury to another by firing a shot at Peak. Gillespie's 

testimony was the prosecution's primary evidence in support of this charge and he 

testified that he observed Martinez pull the handgun out from under his clothing, 

aim the gun at Peak and fire a shot at Peak's back. Peak testified that, although he 

saw Martinez reaching for something and heard the report of a gunshot, he did not 

actually see Martinez with a gun in his hand. Moreover, because he was running 

away from Martinez, Peak did not observe Martinez shoot the gun. Thus, Peak could 

not testify whether Martinez aimed the gun at him or anywhere in his general 

direction. As stated above, Martinez did not testify on his own behalf to controvert 

Gillespie's testimony.

¶18. Martinez offered a proposed jury instruction on negligent endangerment as a 

lesser included offense of criminal endangerment. Negligent endangerment is defined 

as negligently engaging in conduct that creates a substantial risk of death or serious 

bodily injury to another. Section 45-5-208, MCA. The District Court refused the 

instruction and Martinez asserts error.

¶19. Martinez advances the same argument here as he advanced regarding his 

proposed instruction on misdemeanor assault. He contends that, because Gillespie 

was not a credible witness, the jury could have discounted Gillespie's testimony and, 

as a result, reasonably could have found that Martinez acted negligently, rather than 

knowingly, in shooting the gun. Under this scenario, Martinez posits that the jury 

could have found him guilty of the lesser charge of negligent endangerment. Here 

again, because we conclude that the evidence did not support Martinez's proposed 

jury instruction, we need not address the threshold criterion of whether negligent 

endangerment is a lesser included offense of criminal endangerment.

¶20. Gillespie's testimony was the only evidence admitted at trial that Martinez fired 

the gun at Peak. If the jury discounted Gillespie's testimony as incredible, there 

would have been no evidence at all regarding Martinez's actions and the absence of 

evidence would have required a verdict of acquittal. See Schmalz, ¶23. As a result, 

we conclude that, under Martinez's theory here, the evidence before the jury did not 

support an instruction on negligent endangerment. We hold, therefore, that the 

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District Court did not err in refusing Martinez's proposed jury instruction on 

negligent endangerment.

¶21. 3. Did the District Court abuse its discretion when it denied Martinez's motion 

for a continuance on the day of trial?

¶22. Section 46-13-202, MCA, provides, in part, as follows:

(2) The court may upon the motion of either party or upon the court's own motion order a 

continuance if the interests of justice so require.

(3) All motions for continuance are addressed to the discretion of the trial court and must 

be considered in the light of the diligence shown on the part of the movant. This section 

must be construed to the end that criminal cases are tried with due diligence consonant 

with the rights of the defendant and the prosecution to a speedy trial.

Thus, it is within a district court's discretion to determine, in light of the interests of justice 

and the due diligence of the moving party, whether to grant a motion for a continuance. 

Consequently, we review a district court's denial of a motion for continuance in a criminal 

case to determine whether the court abused its discretion. State v. Big Hair, 1998 MT 61, 

¶9, 955 P.2d 1352, ¶9, 55 St. Rep. 257, ¶9 (citation omitted).

¶23. The trial in this case initially was set for April 29, 1996. After several 

continuances, trial was rescheduled for November 18, 1996. On that date, the 

prosecution requested another continuance as a result of its inability to locate its 

primary witness, Gillespie, and the District Court set trial for December 2, 1996. 

During the interim, the prosecution located Gillespie in Wyoming and Martinez's 

counsel requested an opportunity to interview Gillespie prior to trial. The interview 

did not occur until the day before the trial date and, during the interview, defense 

counsel learned that Gillespie had been addicted to methamphetamine before and at 

the time of the events on which the charges against Martinez were based. Further, 

defense counsel learned of a number of inconsistencies in Gillespie's description of 

the events as compared to his previous statements.

¶24. On the morning of trial, Martinez requested the District Court to continue the 

trial date to allow him to interview witnesses regarding information that came to 

light during the Gillespie interview and to locate an expert witness to testify as to the 

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effects of long-term use of methamphetamine on the ability of a witness to accurately 

recollect events. The court denied the request and proceeded with the trial. Martinez 

asserts that the District Court abused its discretion in denying his request for a 

continuance because the revelation of Gillespie's inconsistent version of the events at 

issue and admission of drug addiction, on the eve of trial, hampered his defense.

¶25. Martinez's first contention is that the prosecution should have made Gillespie 

available for an interview prior to the eve of trial and that its failure to do so 

prevented him from adequately preparing for trial and cross-examination. The 

record reflects, however, that an investigator for the defense interviewed Gillespie in 

March of 1996. Further, although Gillespie remained in the Billings area until 

September of 1996 and was available for further questioning during that period, 

Martinez's counsel did not attempt to interview Gillespie again until after the 

November 18, 1996 trial date was vacated due to the prosecution's inability to locate 

Gillespie. In light of the fact that Martinez's counsel could have interviewed Gillespie 

at any time between March and September of 1996, but did not do so, we conclude 

that the prosecution's failure to make Gillespie available for an interview until the 

day before trial, after locating him in Wyoming sometime after November 18, did not 

prevent Martinez from adequately preparing for trial.

¶26. Martinez also argues that the District Court should have granted a continuance 

to further investigate Gillespie's last-minute revelation that he had been addicted to 

methamphetamine at the time of the events in question and to consult with an expert 

regarding the effect of long-term drug use on the ability of a witness to recollect 

events. We disagree.

¶27. When the investigator for the defense interviewed Gillespie in March of 1996, 

Gillespie admitted to smoking marijuana on a recreational basis. The investigator 

apparently did not inquire as to whether Gillespie used other types of drugs and 

Gillespie did not offer the information. Martinez's counsel requested--and received--

records of Gillespie's criminal history, however, including those pertaining to drugrelated incidents. Furthermore, the record indicates that on June 24, 1996, 

Martinez's counsel filed notice of intent to present expert testimony at trial regarding 

the effects of drug use--specifically, hallucinogenic drugs--on a person's "ability to 

perceive accurately events and circumstances around him and, further, the effects of 

long-term use of hallucinogenic substances on a witness's mental state . . . ." Thus, it 

is clear that Martinez intended long before trial to make Gillespie's drug use an issue 

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at trial.

¶28. Additionally, although the District Court denied Martinez's motion to continue, 

it granted his request to call a previously undisclosed expert witness to testify 

regarding the effects of methamphetamine use on the ability of a witness to perceive 

and recall events. Although Martinez eventually did not call this witness for fear that 

cross-examination of the expert would be detrimental to his defense, he was not 

prevented from presenting such evidence by Gillespie's last-minute revelation of 

methamphetamine addiction. 

¶29. Finally, Martinez relies on State v. Timblin (1992), 254 Mont. 48, 834 P.2d 927 

and State v. Borchert (1997), 281 Mont. 320, 934 P.2d 170, for the proposition that 

the interests of justice required the District Court to grant his motion for 

continuance based on Gillespie's contradictory statements discovered on the eve of 

trial. In Timblin, the victim's testimony at trial differed in a number of respects from 

a previous statement she had given. The prosecution and the investigating officer 

were aware that the victim's version of the events had changed prior to trial, but did 

not inform the defense. Timblin, 254 Mont. at 49-50, 834 P.2d at 928. Upon hearing 

the victim's trial testimony, the defense attempted to subpoena two witnesses who 

could testify to the events at issue and impeach the victim's credibility, but was 

unable to serve the subpoenas because the witnesses could not be located. Timblin, 

254 Mont. at 50, 834 P.2d at 928. The defense then moved for a continuance until 

such time as the witnesses could be subpoenaed, but the district court denied the 

motion. Timblin, 254 Mont. at 50, 834 P.2d at 928. We concluded that the defense 

had shown due diligence in attempting to subpoena the witnesses as soon as it heard 

the victim's unexpected testimony and that the testimony of the witnesses was highly 

important to the defendant's ability to present a defense. On that basis, we held that 

the district court abused its discretion in denying the motion to continue. Timblin, 

254 Mont. at 51, 834 P.2d at 929.

¶30. In the present case, there is no indication that the prosecution was aware of 

Gillespie's methamphetamine addiction at any earlier point in the proceedings or 

that it knew, and failed to inform Martinez, that Gillespie's version of the events had 

changed in any way. Nor was Martinez unable to present evidence at trial 

impeaching Gillespie's credibility. To the contrary, Martinez's counsel crossexamined Gillespie at length on his inconsistent statements regarding what occurred 

on December 30, 1995, and even elicited admissions that Gillespie had lied to law 

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enforcement officers about the events of that evening. Furthermore, Martinez had 

the opportunity to subpoena and present witnesses--namely, his expert witness on 

drug use--in support of his contention that Gillespie lacked credibility; Martinez 

simply chose not to present such testimony. Thus, Timblin is distinguishable and of 

no assistance to Martinez here.

¶31. In Borchert, the second case on which Martinez relies, the defendant discovered 

on the eve of trial that his co-defendant had entered into a plea agreement with the 

prosecution in which the co-defendant agreed to lead law enforcement to relevant 

evidence and to testify against the defendant. The prosecution did not inform the 

defendant of the plea agreement and defense counsel learned of it only by accident. 

Borchert, 281 Mont. at 323-24, 934 P.2d at 172-73. The defendant moved for a 

continuance in order to construct a new trial strategy and the district court denied 

the motion. Borchert, 281 Mont. at 324, 934 P.2d at 173. On appeal, we held that the 

district court had abused its discretion in denying the motion for continuance. 

Borchert, 281 Mont. at 327, 934 P.2d at 175. The defendant's entire strategy leading 

into trial had been that both he and his co-defendant would deny involvement in the 

offense charged. His co-defendant's last minute plea agreement effectively 

eviscerated the 

defendant's trial strategy and the interests of justice required granting him a 

continuance to develop a new strategy. Borchert, 281 Mont. at 325, 934 P.2d at 173-

74.

¶32. The circumstances of the present case bear no similarity to those in Borchert. 

Here, Gillespie's differing versions of the events did not completely eviscerate 

Martinez's trial strategy of discrediting Gillespie. Rather, Martinez's counsel 

remained able to attack--and, in fact, effectively attacked--Gillespie's credibility by 

impeaching him with his inconsistent statements and cross-examining him regarding 

his drug use. Borchert does not support Martinez's argument that the interests of 

justice required the District Court to grant his motion to continue the trial in this 

case.

¶33. We hold that the District Court did not abuse its discretion when it denied 

Martinez's motion for a continuance on the day of trial.

¶34. Affirmed.

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/S/ KARLA M. GRAY

We Concur:

/S/ J. A. TURNAGE

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

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