No. 89-600 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsODELL ECKER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Bradley B. Parrish, Attorney at Law, Lewistown, 

Montana 

,- For Respondent: 

Hon. Marc. Racicot, Attorney General, Helena, 

Montana 

Elizabeth Baker, Assistant Attorney General, Helena, 

Montana 

Craig Buehler, County Attorney, Lewistown, Montana 

-. - Submitted on Briefs: April 5, 1990 

Filed: 

~ecided: May 8, 1990 

A" 

Clerk 
Justice Diane G. Barz delivered the Opinion of the Court. 

Odell Ecker, defendant, appeals the decision of the District 

Court of the Tenth Judicial District, Fergus County, denying his 

motion to dismiss the amended information charging misdemeanor 

assault. Defendant alleged that the amended information was not 

supported by an affidavit establishing probable cause. We affirm 

the district court. 

On September 12, 1988, the deputy county attorney for Fergus 

County filed an information in the District Court for the Tenth 

Judicial District, charging the defendant with the offense of 

criminal endangerment, a felony. In support of the application for 

leave to file the information, the deputy county attorney filed an 

affidavit reciting the following facts: 

That on or about the 10th day of August, 1988, 

Charlene Garoutte was operating her motor 

vehicle on a highway in Fergus County, Montana 

near the Coffee Creek, Montana area. That the 

Defendant Odell Ecker was operating his white 

pickup truck in the same area. That the 

Defendant drove his pickup immediately behind 

the car of Charlene Garoutte and appeared to 

b[e] trying to hit her car with his pickup, 

that the Defendant also pulled his truck 

around Charlene Garoutte[, ] got in front of 

her of her [sic] car and put on his brakes, 

whereby she had to either swerve around him or 

crash into the back of his pickup. That 

Charlene Garoutte then went around him, and 

the Defendant then again put his pickup right 

on the rear bumper of her car, as well as 

tried to pass her and force her off the road. 

That such activity of the Defendant appeared 

to create a substantial risk of death or 

serious bodily injury. 

Trial was set for December 14, 1988, and was continued until August 
On August 4, 1989, defendant moved to amend the charge on the 

ground that the offense of criminal endangerment was not intended 

to create an offense for conduct involving illegal or negligent 

operation of motor vehicles, and, if so applied, would be 

unconstitutionally overbroad. The district court agreed with 

defendant and granted the motion to amend, ruling that the amended 

charge should be a misdemeanor assault in violation of § 45-5- 

201 (1) (d) , MCA. Defendant raised no objection to this ruling, and 

the court directed defense counsel to prepare the order. An order 

was subsequently entered expressing the court's determination that, 

the facts stated in the Affidavit in Support 

of the Motion for Leave to File Information 

concerning the alleged incident more precisely 

support a charge of assault under M.C.A. 

Section 45-5-201(1) (dl rather than the offense 

charged in the Information under M.C.A. 

Section 45-5-207. (Emphasis in original.) 

The district court therefore directed the deputy county attorney 

to file an amended information, but found no need for the filing 

of a separate affidavit. An amended information was filed August 

29, 1989, charging defendant with misdemeanor assault. 

prior to commencement of trial on August 29, 1989, defendant 

moved to dismiss the amended information on the ground that there 

had been no affidavit filed to support the new charge of assault. 

The court found that the affidavit in support of the original 

information clearly described "all of the elements necessary to 

charge assault" and denied defendant's motion to dismiss the 

amended information as well as defendant's request to continue the 

trial setting. 

Defendant was convicted on August 30, 1989 of misdemeanor 
assault. On September 7, 1989, he appeared in open court for 

sentencing and was ordered to pay a fine of $500, together with a 

$10 fee pursuant to 5 45-18-236, MCA, jury costs in the amount of 

$956.16, and court costs of $67.50; he was further sentenced to a 

term of six months1 incarceration at the Fergus County jail, with 

all but three days thereof suspended. 

The sole issue raised on appeal is whether the district court 

erred in denying defendant's motion to dismiss the amended 

information for failure to file a new affidavit. 

Defendant argues that the offense of criminal endangerment and 

the offense of misdemeanor assault are such dissimilar acts that 

the county attorney was required to support the amended 

information, charging defendant with misdemeanor assault, with an 

affidavit that specifically stated that defendant "purposely or 

knowingly caused reasonable apprehension of bodily injury in 

another." Defendant then argues that since the affidavit in 

support of the information charging defendant with criminal 

endangerment does not mention the language found in the assault 

statute, that the affidavit is not sufficient to establish probable 

cause for the offense of misdemeanor assault. We disagree. 

A court may use common sense and draw permissible inferences 

when examining an affidavit for a determination of probable cause. 

State v. Riley (1982), 199 Mont. 413, 423, 649 P.2d 1273, 1278. 

This Court's role on appeal is merely to determine whether the 

district court abused its discretion. State v. Buckingham (Mont. 

1989), 783 P.2d 1331, 1334, 46 St.Rep. 2102, 2105. 

The filing of an amended information does not require a second 

4 
affidavit if the affidavit filed with the original information 

established probable cause as to the amended charge. Parker v. 

Crist (1980), 190 Mont. 376, 381, 621 P.2d 484, 487. In Parker, 

this Court specifically stated that 

The filing of a second affidavit containing 

the same information and the same showing of 

probable cause would serve no purpose, would 

not contravene the policy behind the 

requirement, and would be superfluous. The 

law does not require idle acts. Section 1-3- 

223, MCA. 

Parker, 190 Mont. at 381, 621 P.2d at 487. Accordingly, leave to 

file the amended information was proper in this case if the 

affidavit in support of the criminal endangerment charge contained 

sufficient factual allegations to support a finding of probable 

cause to believe that defendant had committed the offense of 

misdemeanor assault. 

The district court, in response to defendant's motion to 

dismiss the amended information on the ground that there had been 

no affidavit filed to support the new charge of assault, found that 

the affidavit in support of the original information clearly 

described "all of the elements necessary to charge assault." In 

particular, the court noted that the affidavit described 

defendant's actions, and also the victim's actions in trying to 

avoid the assault, showing her awareness of the situation. The 

court also commented that the part of the affidavit stating I' [tlhat 

such activity of the Defendant appeared to create a substantial 

risk of death or serious bodily injury" constitutes one of the 

elements of assault. 
The offense of misdemeanor assault is committed if a person 

I1purposely or knowingly causes reasonable apprehension of bodily 

injury in another. 'I Section 45-5-201 (1) (d) , MCA. As already 

noted, assault requires apprehension of bodily injury, whereas the 

terminology in the affidavit stated that defendant's actions 

I1appeared to create a substantial risk.'' This difference in 

phraseology, however, does not defeat the showing of probable cause 

for assault. As noted above, the district court is allowed to draw 

permissible inferences from the affidavit. When the affidavit is 

examined as a whole, the district court could reasonably infer that 

defendant's actions created a reasonable apprehension of harm in 

the victim. The district court did not abuse its discretion in so 

concluding. 

Affirmed. 

We concur: 

- 

Just '