No. 95-455

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

STATE OF MONTANA,

Plaintiff and Respondent,

v.

SHAWN KEVIN SMAAGE,

Defendant and Appellant

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Jeffrey M. Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

J. Mayo Ashley, Helena, Montana

For Respondent:

Honorable Joseph P. Mazurek, Attorney General;

Patricia J. Jordan, Assistant Attorney General,

Helena, Montana

Mike McGrath, County Attorney; Vicki Frazier,

Deputy County Attorney, Helena, Montana

Filed:

Submitted on Briefs: March 14, 1996

Decided: April 15, 1996
Chief Justice J. A. Turnage delivered the Opinion of the Court.

Shawn Smaage was convicted of felony criminal endangerment in

a bench trial in the First Judicial District Court, Lewis and Clark

County. He appeals. We affirm.

The issue is whether Smaage was incorrectly charged under the

criminal endangerment statute rather than under DUI statutes.

In the early morning hours of December 11, 1994, a citizen

reported to the Helena, Montana, city police that he had just

observed a man who appeared very intoxicated get into an older

white Buick and start "swerving down the road." The citizen

provided a vehicle description and license plate number.

Shortly thereafter, a deputy county sheriff located the white

Buick on a city street. The Buick continued to travel over several

city blocks, making a right-hand turn from the left lane of traffic

and weaving into the oncoming lane of traffic several times. Other

vehicles on the streets managed to avoid the Buick.

When the Buick's driver, who was later identified as Shawn

Smaage, was pulled over and got out of the car, he refused to

perform several field sobriety tests. Asked if he had been

drinking, Smaage admitted that he had "had his share."

At the county jail, Smaage tested as having a ,250 blood

alcohol content--well over the legal limit of .lO. See $3 61-8-401,

MCA. He was charged with second offense DUI.

Further review of Smaage's criminal record revealed that,

while he had been charged with DUI only once in the preceding five

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years, he had five previous DTJI convictions between 1981 and 1988.

Additionally, in April 1988, Smaage pled guilty to negligent

homicide as a result of the death of a passenger in a vehicle he

wrecked. Under the law in effect in 1994, all of Smaage's DUI

convictions which were over five years old had been deleted from

his driving record and could not be used to increase the DUI

penalty on the current charge. Section 61-E-714(5), MCA (1993).

After Smaage's record of drinking and driving was reviewed,

the charge against him was changed to criminal endangerment.

Smaage moved to dismiss the charge of criminal endangerment on the

ground that the criminal endangerment statute, § 45-5-207, MCA, was

inapplicable to the facts of this case. He also argued that the

statute was unconstitutionally vague as applied to him. The

District Court denied the motion to dismiss.

Smaage was convicted in a bench trial. He was sentenced to

ten years in prison and was designated a dangerous offender.

Was Smaage incorrectly charged under the criminal endangerment

statute rather than under the DUI statutes?

Section 45-5-207, MCA, provides:

Criminal endangerment--penalty. (1) Aperson who knowinqly enqaqes in conduct that creates a substantial risk of

death or serious bodily iniurv to another commits the

offense of criminal endanserment. 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 of damaging a saw or other wood

harvesting, processing, or manufacturing equipment.

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(2) A person convicted of the offense of criminal

endangerment shall be fined an amount not to exceed

$50,000 or imprisoned in the state prison for a term not

to exceed 10 years, or both. [Emphasis added.]

Smaage argues that he should have been charged under the more

specific DUI statutes, §§ 61-E-401 and -722, MCA, rather than the

more general criminal endangerment statute.

Smaage cites State v. Langan (1968), 151 Mont. 558, 445 P.2d

565, in support of his proposition that a more specific statute

controls over a more general statute. Lansan addressed situations

in which the more specific statute conflicts with and cannot be

harmonized with the general statute. In Lanqan, a specific statute

prohibiting the issuance of a warrant to search a private residence

for contraband directly conflicted with general statutes allowing

issuance of a warrant. This Court held that the specific statute

controlled

Here, in contrast, we are not faced with a conflict between a

specific statute and a general statute, but with alternative

charging statutes. When there is no clear and manifest legislative

intent to the contrary and different proof is required under two

alternative statutes, it is not necessary that the most specific

statutory violation be charged. See State v. Booke (1978), 178

Mont. 225, 230, 583 P.2d 405, 408.

The legislative history of § 45-5-207, MCA, which was enacted

as Ch. 196, L. 1987, contains the following description of

discussion in the Senate Judiciary Committee:

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Senator Yellowtail asked if a person drinks a case of

beer and gets into a car, is that person guilty of

criminal endangerment or is it negligence [sic] endangermerit Senator Halligan said an [sic] prosecuting

attorney would charge him with the highest possible

charge that they can, which is criminal endangerment.

Minutes, Senate Judiciary Committee, March 6, 1987, at 5-6. The

above discussion does not demonstrate clear and manifest legislative intent to prohibit use of the criminal endangerment statute in

prosecutions for drinking and driving. In fact, we conclude that

the above exchange demonstrates legislative intent that the statute

may be so used.

W e recently restated the general rule of prosecutorial

discretion in the charging of crimes:

It is not only incumbent upon the county attorney to

determine when or when not to prosecute a case, but when

the facts of a case support a possible charge of more

than one crime, the crime to be charged is a matter of

prosecutorial discretion.

State ex rel. Fletcher v. Dist. Court (1993), 260 Mont. 410, 415,

859 P.2d 992, 995. The question, then, is not which statute most

specifically covers the crime, but whether the facts support the

charge of criminal endangerment.

The elements of criminal endangerment are the mental state of

"knowingly" and the act of engaging in conduct that creates a

substantial risk of death or serious bodily injury to another. A

person commits the offense of criminal endangerment when he is

aware that there is a high probability that his conduct may cause

a substantial risk of death or serious bodily injury to another.

State v. Crisp (1991), 249 Mont. 199, 203, 814 P.2d 981, 983.

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The District Court, as the trier of fact, found that the facts

supported the charge of criminal endangerment. At the close of

trial, the court restated the facts leading up to Smaage's arrest.

It then quoted from the judge's comments at Smaage's 1988 sentencing for negligent homicide:

[Tlhe Court notes this defendant has five prior convictions for driving under the influence of alcohol, and has

disregarded the risks and dangers he presents to society

by driving while drinking. The Court is aware the

defendant was raised as an alcoholic. He was raised to

kill by car. The defendant is a danger to society and

this sentence is imposed to protect the public from the

defendant, alcohol and automobiles.

After quoting the above comments of the 1988 sentencing court, the

District Court stated:

[Tlhat admonition issued by Judge Bennett some seven

years ago is a clear statement to this person that

driving drunk is going to hurt somebody. He continued to

do it. In fact, he's killed somebody. There were

vehicles on the roadway this night. We're all very lucky

no one else was killed. .

We have an 8th time DUI person. He has killed

somebody. He's been warned repeatedly, specifically by

Judge Bennett, that his conduct is creating a serious

danger to others and he's continued to engage in that

conduct.

On that basis, the District Court found Smaage guilty as charged.

The above comments by the District Court outline the evidence

in the record supporting a finding that Smaage acted "knowingly."

The 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

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serious bodily injury to another. We conclude that the facts

support a charge of criminal endangerment.

Smaage also argues on appeal that his conviction of criminal

endangerment is unconstitutional under principles of due process

and equal protection. He claims that his right to have the law

administered fairly and evenhandedly has been violated and that

5 45-5-207, MCA, is unconstitutionally vague on its face. In

Crisn, this Court upheld the facial constitutionality of 5 45-5-

207, MCA. These arguments were not raised in District Court and we

therefore decline to address them further on appeal. See § 46-zo701(2), MCA.

Finally, Smaage argues that § 45-5-207, MCA, is unconstitutionally vague as applied to him. He complains that he was not

given fair notice that driving after drinking was a felony crime.

A statute not involving First Amendment freedoms which is

challenged as void for vagueness as applied must be examined in

light of the conduct with which the defendant is charged, in order

to determine if one could reasonably understand that the defendant's conduct is proscribed. United States v. Mazurie (1975), 419

U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.Zd 706, 713. In its

review, this Court must view the facts in the light most favorable

to the State. Criw, 814 P.2d at 984.

With his history of convictions of DUI and negligent homicide,

Smaage should reasonably have understood that his drunk driving

created a substantial risk of serious bodily injury to others and

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was therefore proscribed. Under the record in this case, we

conclude that § 45-5-207, MCA, is not unconstitutionally vague as

here applied.

Affirmed.