### No. 96-001 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996

STATE OF MONTANA, Plaintiff and Appellant, 

## AUG 2 21995 v. BRADLEY J. BELL, Defendant and Respondent.

APPEAL FROM: District Court of theThirteenthJudicialDistrict, In and for the County of Big Horn, TheHonorableRobertW. Holmstrom, Judgepresiding.

COUNSEL OF RECORD: For Appellant: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Ass't Attorney General, Helena, Montana Christine A. Cooke, Big Horn County Attorney, Curtis L. Bevolden, Deputy County Attorney, Hardin, Montana For Respondent: James L. Vogel, Attorney at Law, Hardin, Montana

Submitted on Briefs: May 30, 1996 Decided: August 22, 1996

### Justice W. william Leaphart delivered the Opinion of the Court.

Pursuantto § 

### 46-20-103(2)(b), MCA, the Stateappeals fromthe Big Horn County, Thirteenth Judicial District Court's Order modifyingthejuryverdict ofdefendantBradleyJ. Bell (Bell). In response toBell'smotionforjudgmentnotwithstanding the verdict
or new trial, the District Court changed the verdict of guilty of criminal endangerment to a verdict of guilty of reckless driving. We reverse. The issue on appeal is: Whether the District Court erred in concluding that identification of a particular victim is an element of the offense of criminal endangerment. BACKGROUND In the mid-morning hours of September 21, 1994, Big Horn CountyDeputy Sheriff Gary Sederwent to Bell'splace ofbusiness,
an auto shop, in Hardin, Montana, to investigate a stolen vehicle report. Bell deniedDeputySederpermissionto searchhisplaceof business. Deputy Seder thenwent to Bell's residence inHardin to further investigate. Bell, andhis passenger Carl Venne, followed Deputy Seder to the house inBell'syellowpickup truck. After an altercation with Deputy Seder outside the house, Bell returned to the truck where Venne was still sitting in the passenger seat. Deputy Seder approached the truck and opened the driver's door. Deputy Seder had one hand on Bell's arm and the other on the truck'sdoorwhenBell acceleratedand spedaway. DeputySederwas
2thrown back by the accelerating truck but was not hurt. Deputy Seder then pursued Bell in his patrol car, flashing the emergency lights and using the siren. Bell proceeded down Custer Avenue in Hardin at speeds between 50 and 80 mph. Bell did not stop at a stop sign and did not slow for a yield sign. Custer Avenue is a
narrow city street. Bell's route tookhimpast homes, churches, a library, and a grocery store. Bell turned off Custer Avenue onto Fourth Street, made a wrong way entry into a parking lot and stopped in front of the sheriff's office at the Big Horn County Courthouse. Bell was charged by information with two counts of criminal endangerment in violation of § 45-5-207, MCA, and one count of criminal possession of dangerous drugs in violation of § 45-9- 102(2), MCA. The first count of criminal endangerment involved Bell's speeding away from Deputy Seder while Seder was holding on to Bell and the pickup door. The second count of criminal endangerment involvedBell'shigh speeddrive throughHardin. Bell pled not guilty to the three charges. At trial, Deputy Seder testified that he saw two or three people standing on the curb in front of the grocery store as he pursuedBellbut that he didnot see anyone on the roadway. Deputy Seder also testified that he saw a vehicle stopped at the intersection with the yield sign at Custer Avenue and Fourth Street. After the two-day trial, thejuryfound Bell not guiltyon the first count of criminal endangerment, guilty on the second

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### countof criminal endangerment, andguiltyonthe countof criminal possession of dangerous drugs. Subsequently, Bell moved the court for judgment notwithstanding the verdict or new trial. In response, the court ordered that the jury's guilty verdict on count two of felony criminal endangerment be set aside and replaced with a guilty verdict forthe offenseofmisdemeanorrecklessdriving. The court changed the verdict because it determined that the State had not provenanelementof criminal endangerment. The court stated "[n]0 

### evidence was presented by the prosecution indicating that an identifiedperson had beenplaced in substantial risk of death or serious bodily injury by the defendant's actions." The State, pursuant to § 

### 46-20-103(2)(b), MCA, appeals the District Court's modification of the juryverdict. STANDARD OF REVIEW As we stated in State v. Mummey (1994), 264 Mont. 272, 276, 871 P.2d868, 870, the statutesgoverningcriminalproceduredonot provideforjudgmentnotwithstandingtheverdict. However, we also noted that: [Section] 46-16-702, MeA, permitsa defendanttomove for a new trial followinga verdictofguilty, andunderthis statute, the district court may modify or change the verdict by finding the defendant guilty of a lesser included offense or finding the defendant not guilty. Mummey, 871 P.2d at 870. As inMummey, Bell'smotion for judgment notwithstandingtheverdictwillbedeemeda motionfor a new trial made under § 

### 46-16-702, MCA. Our standard of review of a district

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### court's ruling on a motion for new trial is whether the district court abused its discretion. Mummey, 871 P.2d at 870. The State, however, argues that this casepresents a question of statutory interpretationwhich shouldbe reviewed as a question of law. Statev. Christensen (1994), 265 Mont. 374, 375, 877 P.2d 468, 468-69. We agree. TheDistrict Court changedBell'sverdict based on its interpretation of the phrase "substantial risk of death or serious bodily injury to another" found in the criminal endangerment statute, § 

### 45-5-207, MCA. The court based its interpretationof thephrase onthe statute's legislativehistory,
ourdecisioninStatev. Brown (1995), 270Mont. 454, 893 P.2d320, and an Arizona decision pertaining to a similar statute, State v. Morgan (Ariz. 1981), 625 P.2d 951. Thus, we determine whether the District Court's interpretation of law is correct. Christensen, 877 P.2d at 469. DISCUSSION Whether the District Court erred in concluding that identification of a particular victim is an element of the offense of criminal endangerment. The District Court concluded that because"[n]o evidencewas presented by 

### the prosecution indicating that an identifiedperson had been placed in substantial risk of death or serious bodily injuryby the defendant's actions," criminal endangerment hadnot beenproven. Section 45-5-207, MCA, provides: (1) Apersonwho knowingly engages in conduct that creates a substantial risk of death or serious bodily injury to another commits the offense of criminal endangerment. This conductincludesbutisnotlimitedto knowingly placing in a tree, log, or any other wood any steel, iron, ceramic, orother substance for thepurpose 5of damaging a saw or other wood harvesting, processing, or manufacturing equipment. The second sentence of § 45-5-207, MeA, sets out anexample of criminal endangerment in which there is no identified victim. Someone who knowinglyplaces a "spike" in a tree creates a risk to
anunknown, unidentified logger ormill worker. Much like driving 80 mph down a city street, "spiking" has the potential of endangering a person who happens to come into contact with the dangerous object. In a prosecution for spiking trees, it is sufficient that the Stateprove that the spikewas "placed" for the purpose of damaging a saw. It is not necessary that the State prove that the tree was actually sawed or that an identifiable person was endangered or injured by the spike. Additionally, the criminal endangerment statute does not require proof that the defendant intendedto injure another. Rather, it requires that the State prove that the defendant "knowingly" engaged in conduct and that the conduct created a 

### substantial risk of death or serious bodily injury to another. Recently, in State v. Smaage (Mont. 1996), 915 P.2d 192, 53 St.Rep. 294, we held that Smaage had been correctly charged under the criminal endangerment statute rather than under the DUI statutes. Smaage was arrested for driving recklessly in downtown Helena, weaving into the oncoming lane of traffic, and swerving down the street in the early morning hours. At the county jail, Smaage's blood alcohol content tested at .250, far over the legal limit of .10. On appeal, Smaage raised the issue of whether he should have been charged under the more specific DUI statutes 6rather than the more general criminal endangerment statute. Although Smaage raiseda different issue, much of the discussion in Smaage is relevant to the instant case. In Smaage, we determined that:[t]hepresence of otherpeople on the streets down which Smaage weaved the Buick--a potential lethal missile in thehands of a driverwitha .250bloodalcohol content-- supports a finding that Smaage engaged in conduct creating a substantial risk of death or serious bodily injury to another. We conclude that the facts support a charge of criminal endangerment. 915 P.2d at 195. Additionally, in Smaage, we looked at the legislative history of § 45-5-207, MCA, and quoted the Senate Judiciary Committee minutes as follows: Senator Yellowtail asked if a person drinks a case of beer and gets into a car, is that person guilty of criminal endangerment or 1S it negligence [sic] endangerment. SenatorHalligansaidan [sic] prosecuting attorney would charge him with the highest possible charge that they can, which is criminal endangerment. 915 P.2d at 194. The legislative history reveals that the legislatureenvisionedincludingdrivers of carswithinthepurview of the criminal endangerment statute. Thus, Smaage establishes that a person who knowingly drives a car in such a manner that he creates a substantial risk of death or serious bodily injury to another, even if the "other" be an unidentified person on the street, can be guilty of criminal endangerment. Our decision in State v. Brown specifically addresses the question of whether a potential victimmust be identified in order for a defendant to be found guilty of criminal endangerment. Brown, 893 P.2d 320. In the instant case, theDistrict Court based 7

### its change of verdict, inpart, onBrown. InBrown, the defendant fired several gunshots fromhis vehiclewhile travelingnorthbound from Missoula, Montana, on Highway 93. Janet Hatt was driving in front of Brown and sawhim fire the shots. AlthoughBrown was not aiming at her, Hatt was frightened for herself and her daughters who were also inher car. Shortlyafterthe shotswere fired, Hatt reported the incident and the police arrested Brown. Brown was chargedwithcriminal endangerment. Thejuryacquittedhimof this charge and instead found him guilty of negligent endangerment. Brown, 893 P.2d at 321. Section 45-5-208(1), MCA, defines negligent endangerment: Apersonwho negligentlyengages inconduct that 

### creates a 

### substantial risk of 

### death or 

### serious bodily injury to 

### another commits the offense of negligent endangerment. [Emphasis added.] The italicizedportionofthenegligentendangerment statuteis the
same as the phrase at issue in the present case from the criminal endangerment statute. In Brown, we recognized the similarity of the statutes and we looked to the legislature's intent inpassing § 

### 45-5-207, MCA, the criminal endangerment statute: "The intent
was to 'plug a hole in the criminal law' and address conduct such
asplacingpoison intoaspirinina store." Brown, 893 P.2d at 322 (citingMinutes of theMontanaHouseJudiciaryCommittee, February 5, 1987). As with spiking trees, if, before anyone was actually poisoned by that aspirin, a defendant was prosecuted for placing poisoned aspirin in a store, it wouldbe impossible to identify a specific person put at riskby the defendant's conduct.

8Brown moved for a directed verdict arguing that negligent endangerment requires proof of a substantial risk of death or seriousbodily injuryto an identifiedindividual. Brown, 893 P.2d at 322. Brown contended that the State was required to prove that specific identified persons were put at risk by his conduct. We rejected his "identified individual" argument which would require proof that identified individuals were put at risk of death or serious bodily injury. Rather, we held that the State had presented sufficient evidence of a substantial risk of death or serious injury to anotherbyproving that there were several homes along the highway and that there were unidentifiedpassengers in a
car pulled over on the side of the road. Additionally, we concluded that a trier of fact could have found that the shots fired by Brown placed Hatt and her daughters at risk. Brown, 893 P.2d at 322. IninterpretingBrown, theDistrictCourt concludedthat since Hatt was an identifiablepotential victim, the Brown decision does not stand for the proposition that the State need not prove that therewas an identifiablevictiminorder to convict a defendant of criminal endangerment. We take this opportunity to clarify our holding in Brown. Although Brown involved both unidentified and identified potential victims, we now hold that no specific victim need be identified to find a defendant guilty of criminal endangerment

. Given the clear language of the statute which specificallyincludesconduct (treespiking) involvingunidentified victims, the legislative history which provides examples of drunk

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### drivers andpoisoned aspirin, neitherofwhichnecessarilyrequire identified victims, and our holdings in Smaage and Brown, we hold that theDistrictCourterredinconcludingthat theidentification of a particular victim is an element of the offense of criminal endangerment. JusticeTrieweiler's dissent, relyingonBell's self-serving, after-the-fact assertions that his car was in good mechanical condition, that hewas completelyincontrol andthatnoonewas in danger, expresses abhorrence at the proposition that a person can be guilty of a felony "for nothing more than driving too fast." Not surprisingly, oursystemofjusticerequires that thejury, not the accused, determines whether he violated the law; 

### that is, whetherhis conduct createda substantial risk of death or serious bodilyinjury. Bell'scontentionthatnoonewas indangerbecause he was "in control" is about as compelling as having someone shoot
a rifle intoa movingpassengertrainanddownplaythe significance ofhis conductbyarguingthathis rifle is ingoodcondition, that he is a good shot, he did nothing more than shoot at the baggage
car and the police could not identify who, if anyone, was in the train or the baggage car at the time. Although Bell may have had no intent to injure anyone, he knowinglydrove down a city street atupto 80 mph. The fortuitous circumstance that he did not actuallyharm anyone orhave any near misses is irrelevant. His driving down a city street at excessive speed created a risk of death or seriousbodily injury tounnamed, unidentifiable people.
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### We note that not all speeding violations necessarily rise to thelevel of criminal endangerment. However, in situations suchas the instant case, we hold that where a person drives a car at speedsup to 80 mph throughoccupiedcitystreets, ignoringtraffic signs, in the middle of the morning, that person creates a substantial riskofdeathorseriousbodilyinjurytoanother, thus committing the offense of criminal endangerment. Reversed and remanded for reinstatement of the verdict of guiltyof criminalendangermentandresentencinginaccordancewith that verdict.

Justices

11Justice Terry N. Trieweiler dissenting I dissent from the majority opinion which transforms anything but the most minor of traffic offenses to a felony punishable by a fine of up to $50,000 and imprisonment for a period of up to ten years. Surely as a result of this decision criminal endangerment has become Montana's "one size fits all" crime of choice for zealous prosecutors. The circumstances which led to Bradley Bell's conviction of a serious felony are quite remarkable. He drove his vehicle which
was in good mechanical condition directly from his house to the sheriff's office on a street where he had a clear field of vision with no obstructions to his line of sight. There were no other people or cars on the road. There were two or three people on the sidewalk approximately one-half block from where Bell turned into the sheriff's parking lot and there was a car at the final intersectionbefore the sheriff'sparkinglot. However, thepeople
on the sidewalk were not approaching the street and the pursuing officer acknowledged that Bell's brake lights went on prior to the last intersection. Bell testified that there was no one in danger as a result of his operation of his vehicle and that he was completely in control at all times. When the pursuing officer was asked: "Can you name
oneperson that BradBell caused substantial risk of injuryto?" he answered, "I don't know of anybody, no." The majorityopinion characterizes Bell's testimonyregarding the condition of his vehicle and the degree of his control over 12that vehicle as self-serving. The implication is that for some
reason we should assume, without proof by the State, that Bell was out of control and that someone must have been in danger. However, the last I knew, it was the State's burden to prove the factual basis for everycrime charged. It is not the defendant's burden to prove that he did not endanger anyone. In this case, the State simply failed to prove that anyone was endangered. The majority contends that it is up to the jury, not this Court, to determine whether the defendant violated the law. That is an interesting and novel approach for an appellate court. For five and one-half years I have been operating under the assumption that one of this Court's responsibilities was to assume the truth of the facts proven by the State and then determine as a matter of lawwhether those facts support the crime for which a defendant was convicted. Until now neither Justice Leaphart nor the other signators of the majority opinion had done anything to dispel that notion. The majority opinion compares Bell's conduct to shooting a rifle into a moving passenger train. Suffice it to say that driving a vehicle down a street during daylight hours with a full and clear view of all that is in front of or on either side of the vehicle seems to me to bear little resemblance to blindly firing a bullet into a movingpassengertrain. Beyond that, analysis of why the majoritywould choose to compare a speedingvehicle to an armed assault is beyond my field of expertise.

13The inference from the majority opinion is that without the sanction from the criminal endangerment statute, conduct like Bell's would go unpunished. However, that is not correct. There
are numerous statutes which were specifically intended to punish conduct exactly like Bell's. Section 61-8-301, MeA, prohibits operating a vehicle in willful or wanton disregard for the safety of persons orproperty. Section 61-8-302, MeA, prohibits careless driving, and § 61-8-303, MeA, requires that a vehicle be operated in a careful and prudent
manner and at a speed of no more than 25 miles per hour in an urban district. It is significant that that maximum penalty that the Legislature deemed appropriate for even the most serious of these offenses (operating a vehicle in willful and wanton disregard for the safetyof others while fleeing a peace officer) is imprisonment for not more than six months and a fine of not more than $500. Section 61-8-715, MeA. If the Legislature intended the penalty for the exact conduct engaged inby the defendant tobe no more than sixmonths inprison and a fine of $500, how could the Legislature have at the same time authorized a penalty of up to ten years in prison and a fine of up to $50,000 based solely on the discretion of the charging authorities? The majority's conclusion to that effect makes no
sense and opens the door to widespread abuse in the application of § 45-5-207, MeA. I conclude that based on the facts presented in this case there was no evidence that Bradley Bell "knowingly engage[d] in 14conduct that create[d] a substantial risk of death or serious bodily injury to another." added)

. Section 45-5-207(1), MCA (emphasis

The majority's suggestion·that Bell can be convicted of criminal endangerment without endangering anyone simply because underother circumstanceshemight have endangered someone hadthey been on the street and encountered his speeding vehicle is a strange theory indeed. The fact that someone might have been endangered under other circumstances is completely irrelevant to whether the Stateproved the elements of the criminal endangerment statute based on the facts in this case. Based on the majority's conclusion the possibilities for prosecution under the criminal endangerment statute are limitedonlybythe fertile imaginationof the State's prosecutors; this is exactly the kind of ambiguity and opportunity for overcharging that our criminal jurisprudence has traditionally sought to avoid. At a time when most Montanans correctly assume that there is
no daytime speed limit inMontana, this Court has nowheld that law enforcement authorities can, at theirdiscretion, charge thepeople of this state with a felony punishable by ten years in prison and
a $50,000 fine for nothing more than driving too fast. This state may now have the most severe penalty in the country for a victimless crime. Add one more bizarre twist to a year of strange developments in Montana.

15For these reasons I dissent from the majority opinion. I would affirm the judgment of the District Court.

Justice William E. Hunt, Sr., joins in the foregoing dissenting opinion.

16Justice Karla M. Gray, dissenting.

I dissent and write separately to add an additional perspective to that advanced by Justice Trieweiler. It is a fundamental precept of the law that statutes defining criminal offenses must "give a person of ordinary intelligence a reasonable opportunitytoknowwhat isprohibited so thathe or she may act in accordance therewith." State v. Huebner (1992), 252 Mont. 184, 187, 827 P.2d 1260, 1262. As Justice Trieweilerpoints out, various statutory offenses relating to operating a vehicle-- including statutes addressing reckless driving, careless driving and the "basic speed rule" for urban areas--provide notice to the driver of a vehicle that drivingat excessive speeds ina populated
area is sanctionable conduct. Bell properly could have been charged with any or several of those offenses. Section 45-5-207, MCA, the felony criminal endangerment statute, on the other hand, provides no such notice. I submit that no person of ordinary intelligence would ever dream that speeding, regardless of how egregious the rate of travel but without a resulting injury to anyone, constitutes a felony offense carrying a penalty of imprisonment for up to ten years and a fine of up to $50,000. Moreover, it is important to look to the legislative history of § 45-5-207, MCA. The criminal endangerment offense defined thereinwas introducedas H.B. 301 inthe 1987 legislative session, in the words of the bill's sponsor, to "plug a hole in the criminal law." What hole? As the sponsor explained it, the offense "would
17apply primarily to cases in which someone would introduce poison into aspirin tablets or 

### something of 

### that nature." (Emphasis added.) No supporter of the bill testified or even suggested that the offense was intended to encompass any conduct relating to operating a vehicle, much less a speeding offense. One supporter offered, as an example of conduct which would come under the statute, the situation where a nurse who was a drug addict took a patient's medication for his or her personal use and gave the patient a different medication. This example corresponds in concept and nature to the "aspirin tampering" example provided by the sponsor. Nor did any of the statutes from other states, uponwhichH.B. 301 purportedly was patterned and which were provided to the Judiciary Committees, address any conduct relating to operating a vehicle. Indeed, those statutes addressed only "reckless" endangerment and, except for one statute which made the offense a felony when the endangerment involved a substantial risk of imminent death, all of the other states' endangerment offenseswere misdemeanors. The two court decisions supporters also provided--
one fromWashington and one fromArizona--involved charges arising from gun incidents. The only amendment to § 45-5-207, MCA, came during the 1989 legislative session. That amendment specifically added conduct commonly referred to as "tree spiking" to the definition of criminal endangerment. Such conduct is of the same nature as the "aspirin tampering" conduct for which the offense of criminal
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### endangerment originally was enacted. Nothing in the legislative history of § 

### 45-5-207, MeA, supports chargingBell'soperationof a vehicleat excessive speeds
as criminal endangerment. Nor does the language of the statute apprise a person of ordinary intelligence that speeding, with nothing more, constitutes a felony offense. I dissent.

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