No. 86-569 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSMARTIN MORRIS REDFERN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

E. June Lord, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Barbara Claassen, Asst. Atty. General, Helena 

Patrick L. Paul, Cascade County Attorney, Great Falls, 

Montana 

GE? 1 C 1981 

Filed: 

Submitted on Briefs: July 30, 1987 

Decided: September 10, 1987 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

The defendant was initially charged by information in 

the District Court, Eighth Judicial District, Cascade County, 

with deliberate homicide in connection with the shooting 

death and subsequent concealment of the body of Scott 

Scissons. Following a jury trial in which the jury could not 

reach a verdict, a plea bargain agreement was entered into 

between the defendant and the Cascade County Attorney's 

office. Pursuant to the plea bargain agreement, the 

defendant entered a plea of guilty to an amended information 

charging negligent homicide. 

The District Court sentenced the defendant to a term of 

ten years in prison with an additional ten years to run 

consecutively for the use of a dangerous weapon. The 

defendant now challenges the application of the enhancement 

statute, § 46-18-221, MCA, to his sentence. We affirm. 

Defendant presents the following issues to the Court: 

1. Does S 46-18-221, MCA, providing for an additional 

sentence if a firearm is used during the commission of a 

crime, apply to negligent homicide? 

2. Does 46-18-221, MCA, as written and applied 

deprive the defendant of due process of law in violation of 

the Montana and United States Constitutions? 

We shall address the issues in the order presented. 

The crux of the defendant's argument is that the 

"knowingly" mental state required by the sentence enhancement 

statute precludes its application to a situation where the 

victim of a homicide is "negligently" or more particularly 

"accidentally" killed. Such an interpretation of the 

enhancement statute conflicts with the plain meaning of the 

language used by the legislature. Section 46-18-221, MCA, 

provides, in pertinent part: 
A person who has been found guilty of any offense 

and who, while enqaqed in the commission of the 

offense, knowingly - displayed, brandished, or 

otherwise used a firearm . . . shall, in addition 

to the punishment provided for the commission of 

such offense, be sentenced to a term of 

imprisonment in the state prison of not less than 2 

years or more than 10 years,. . . (Emphasis 

added. ) 

By its terms, the enhancement statute applies to the 

commission of "any offense." The defendant asserts that the 

"knowingly" mental state required by the enhancement statute 

and the "negligent" mental state required by the negligent 

homicide provision are mutually exclusive. We disagree. As 

this Court has stated, "a person can knowingly use a firearm 

and still be negligent by grossly deviating from the conduct 

of a reasonable person in a similar situation with regard to 

the results of his actions." State v. Hubbard (1982), 200 

Mont. 106, 112, 649 P.2d 1331, 1334; State v. Stroud (Mont. 

1984), 683 P.2d 459, 41 St.Rep. 919. 

The defendant's attempt to distinguish Hubbard and 

Stroud, supra, based on the allegedly accidental nature of 

the homicide in the instant case does not hold water. In 

each case, the defendant was found to have committed 

negligent homicide. Negligently, within the meaning of 

negligent homicide, is defined in S 45-2-101(37), MCA. It 

provides : 

"Negligentlyw--a person acts negligently with 

respect to a result or to a circumstance described 

by a statute defining an offense when he 

consciously disregards a risk that the result will 

occur or that the circumstance exists or when he 

disregards a risk of which he should be aware that 

the result will occur or that the circumstance 

exists. The risk must be of such a nature and 

degree that to disregard it involves a gross 

deviation from the standard of conduct that a 

reasonable person would observe in the actor's 

situation. "Gross deviation" means a deviation 

that is considerably greater than lack of ordinary 

care. 
Whether the gross deviation occurs because the offender 

"only intended to wing [the victim]" as in Hubbard or 

accidently released the hammer of the pistol as is alleged in 

the instant case is immaterial. In both situations the 

result is the same, a person lost their life due to the 

inexcusably negligent and criminal actions of another. 

Either situation satisfies the definition of criminal 

negligence. 

Defendant next contends that the enhancement statute as 

written and applied is violative of due process as guaranteed 

by the Montana and United States Constitutions. A review of 

the trial proceedings demonstrates that the issue was not 

raised at the time, however. Subject to the exceptions of S 

46-20-702, MCA, this Court will not entertain issues not 

raised at trial. State v. St. Goddard (Mont. 1987), 734 P.2d 

680, 682, 44 St.Rep. 551, 554. 

We hold that the sentence enhancement statute was 

properly applied in this case. 

Affirmed. 

i 

i tx 

, 

Justice I 

We- Concur: