No. 96-001 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

STATE OF MONTANA, 

Plaintiff and Appellant, 

AUG 2 2 1995 

v. 

BRADLEY J. BELL, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Big Horn, 

The Honorable Robert W. Holmstrom, Judge presiding. 

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. 

Pursuant to § 46-20-103(2) (b), MCA, the State appeals from the 

Big Horn County, Thirteenth Judicial District Court's Order 

modifying the jury verdict of defendant Bradley J. Bell (Bell). In 

response to Bell's motion for judgment notwithstanding 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 

County Deputy Sheriff Gary Seder went to Bell's place of business, 

an auto shop, in Hardin, Montana, to investigate a stolen vehicle 

report. Bell denied Deputy Seder permission to search his place of 

business. Deputy Seder then went to Bell's residence in Hardin to 

further investigate. Bell, and his passenger Carl Venne, followed 

Deputy Seder to the house in Bell's yellow pickup 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's door when Bell accelerated and sped away. Deputy Seder was 

2 
thrown 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 took him past 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 involved Bell's high speed drive through Hardin. 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 

pursued Bell but that he did not 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, the jury found Bell not guilty on 

the first count of criminal endangerment, guilty on the second 

3 
count of criminal endangerment, and guilty on the count of 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 for the offense of misdemeanor reckless driving. The court 

changed the verdict because it determined that the State had not 

proven an element of criminal endangerment. The court stated " [n] 0 

evidence was presented by the prosecution indicating that an 

identified person had been placed 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 jury verdict. 

STANDARD OF REVIEW 

As we stated in State v. Mummey (1994), 264 Mont. 272, 276, 

871 P.2d 868, 870, the statutes governing criminal procedure do not 

provide for judgment notwithstanding the verdict. However, we also 

noted that: 

[Section] 46-16-702, MeA, permits a defendant to move for 

a new trial following a verdict of guilty, and under this 

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 in Mummey, Bell's motion for judgment 

notwithstanding the verdict will be deemed a motion for a new trial 

made under § 46-16-702, MCA. Our standard of review of a district 

4 
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 case presents a question 

of statutory interpretation which should be reviewed as a question 

of law. State v. Christensen (1994), 265 Mont. 374, 375, 877 P.2d 

468, 468-69. We agree. The District Court changed Bell's verdict 

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 

interpretation of the phrase on the statute's legislative history, 

our decision in State v. Brown (1995), 270 Mont. 454, 893 P.2d 320, 

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 evidence was 

presented by the prosecution indicating that an identified person 

had been placed in substantial risk of death or serious bodily 

injury by the defendant's actions," criminal endangerment had not 

been proven. Section 45-5-207, MCA, provides: 

(1) A person who knowingly engages in conduct that 

creates a substantial risk of death or serious bodily 

injury to another commits the offense of criminal 

endangerment. This conduct includes but is not limited to 

knowingly placing in a tree, log, or any other wood any 

steel, iron, ceramic, or other substance for the purpose 

5 
of damaging a saw or other wood harvesting, processing, 

or manufacturing equipment. 

The second sentence of § 45-5-207, MeA, sets out an example of 

criminal endangerment in which there is no identified victim. 

Someone who knowingly places a "spike" in a tree creates a risk to 

an unknown, unidentified logger or mill 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 State prove that the spike was "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 intended to 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. Sma age 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 

6 
rather than the more general criminal endangerment statute. 

Although Smaage raised a different issue, much of the discussion in 

Smaage is relevant to the instant case. In Sma age , we determined 

that: 

[t]he presence of other people on the streets down which 

Smaage weaved the Buick--a potential lethal missile in 

the hands of a driver with a .250 blood alcohol 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 Sma age , 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. Senator Halligan said an [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 

legislature envisioned including drivers of cars within the purview 

of the criminal endangerment statute. Thus, Sma age 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 victim must be identified in order 

for a defendant to be found guilty of criminal endangerment. 

Brown, 893 P.2d 320. In the instant case, the District Court based 

7 
its change of verdict, in part, on Brown. In Brown, the defendant 

fired several gunshots from his vehicle while traveling northbound 

from Missoula, Montana, on Highway 93. Janet Hatt was driving in 

front of Brown and saw him fire the shots. Although Brown was not 

aiming at her, Hatt was frightened for herself and her daughters 

who were also in her car. Shortly after the shots were fired, Hatt 

reported the incident and the police arrested Brown. Brown was 

charged with criminal endangerment. The jury acquitted him of 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: 

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. 

[Emphasis added.] 

The italicized portion of the negligent endangerment statute is 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 in passing 

§ 45-5-207, MCA, the criminal endangerment statute: "The intent 

was to 'plug a hole in the criminal law' and address conduct such 

as placing poison into aspirin in a store." Brown, 893 P.2d at 322 

(citing Minutes of the Montana House Judiciary Committee, 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 would be impossible to identify a 

specific person put at risk by the defendant's conduct. 

8 
Brown moved for a directed verdict arguing that negligent 

endangerment requires proof of a substantial risk of death or 

serious bodily injury to an identified individual. 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 another by proving that there were several homes 

along the highway and that there were unidentified passengers 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. 

In interpreting Brown, the District Court concluded that since 

Hatt was an identifiable potential victim, the Brown decision does 

not stand for the proposition that the State need not prove that 

there was an identifiable victim in order 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 

specifically includes conduct (tree spiking) involving unidentified 

victims, the legislative history which provides examples of drunk 

9 
drivers and poisoned aspirin, neither of which necessarily require 

identified victims, and our holdings in Smaage and Brown, we hold 

that the District Court erred in concluding that the identification 

of a particular victim is an element of the offense of criminal 

endangerment. 

Justice Trieweiler's dissent, relying on Bell's self-serving, 

after-the-fact assertions that his car was in good mechanical 

condition, that he was completely in control and that no one was 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, our system of justice requires that the jury, not 

the accused, determines whether he violated the law; that is, 

whether his conduct created a substantial risk of death or serious 

bodily injury. Bell's contention that no one was in danger because 

he was "in control" is about as compelling as having someone shoot 

a rifle into a moving passenger train and downplay the significance 

of his conduct by arguing that his rifle is in good condition, 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 

knowingly drove down a city street at up to 80 mph. The fortuitous 

circumstance that he did not actually harm anyone or have any near 

misses is irrelevant. His driving down a city street at excessive 

speed created a risk of death or serious bodily injury to unnamed, 

unidentifiable people. 

10 
We note that not all speeding violations necessarily rise to 

the level of criminal endangerment. However, in situations such as 

the instant case, we hold that where a person drives a car at 

speeds up to 80 mph through occupied city streets, ignoring traffic 

signs, in the middle of the morning, that person creates a 

substantial risk of death or serious bodily injury to another, thus 

committing the offense of criminal endangerment. 

Reversed and remanded for reinstatement of the verdict of 

guilty of criminal endangerment and resentencing in accordance with 

that verdict. 

Justices 

11 
Justice 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 

intersection before the sheriff's parking lot. However, the people 

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 

one person that Brad Bell caused substantial risk of injury to?" he 

answered, "I don't know of anybody, no." 

The majority opinion characterizes Bell's testimony regarding 

the condition of his vehicle and the degree of his control over 

12 
that 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 every crime 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 

law whether 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 moving passenger train. Beyond that, analysis of why 

the majority would choose to compare a speeding vehicle to an armed 

assault is beyond my field of expertise. 

13 
The 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 or property. 

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 safety of 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 in by the defendant to be no more than six months in prison 

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 

14 
conduct 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 

under other circumstances he might have endangered someone had they 

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 State proved 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 limited only by the fertile imagination of 

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 in Montana, this Court has now held that law 

enforcement authorities can, at their discretion, charge the people 

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. 

15 
For these reasons I dissent from the maj ori ty opinion. I 

would affirm the judgment of the District Court. 

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

opinion. 

16 
Justice 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 opportunity to know what is prohibited so that he or she 

may act in accordance therewith." State v. Huebner (1992), 252 

Mont. 184, 187, 827 P.2d 1260, 1262. As Justice Trieweiler points 

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 driving at excessive speeds in a 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 

therein was introduced as H.B. 301 in the 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 

17 
apply 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, upon which H.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 offenses were 

misdemeanors. The two court decisions supporters also provided--

one from Washington and one from Arizona--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 

18 
endangerment originally was enacted. 

Nothing in the legislative history of § 45-5-207, MeA, 

supports charging Bell's operation of a vehicle at 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. 

19