No. 88-263 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and. Respondent, 

-vsKENNETH TRASK, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Moses Law Firm; Jay F. Lansing, Billings, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Paul D. Johnson, Asst. Atty. General, Helena 

I- Harold Hanser, County ~ttorne~, Billings, Montana 

cx Curtis L. BevoLden, Deputy County Atty., Billings 3 

c; 

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Ill 

Submitted on Briefs: Aug. 26, 1988 

Decided: October 27, 1988 

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Clerk 
Mr. Justice William E. Hunt, Sr., d.elivered the Opinion of 

the Court. 

Kenneth Trask, the defendant, appeals his conviction by 

the District Court of the Thirteenth Judicial District, 

Yellowstone County for the offense of felony assault, 5 

45-5-202 (2) (b) , MCA. We affirm. 

The sole issue presented on appeal is whether sufficient 

evidence existed to sustain the District Court's verdict 

convicting Kenneth Trask of felony assault under S 

45-5-202 (2) (b) , MCA. I 

In January, 1987, Bonnie Gill and her fiance, Robert 

Aukshun, resided together in his trailer house on Highway 

312, near Huntley, Montana. Gill had previously been married 

to Kenneth Trask, the defendant, from June 13, 1981 and until 

the dissolution of their marriage on July 12, 1985. 

On January 23, 1987, Gill and Aukshun retired between 

9:00 p.m. and 9:30 p.m. At approximately 10:OO p.m., Gill. 

and Aukshun heard their puppy barking and then shortly 

thereafter, knocking on their trailer door. Both looked out 

the windows but were unable to see either lights or a 

vehicle. Aukshun then opened the front door a "little bit" 

and looked out, but was unable to see anyone. He did, 

however, notice that the safety chain on the screen door had 

been unlatched and the screen door, which had been latched 

and secured earlier in the evening, was wide open. Aukshun 

then poked his head out the front door, looked around, and 

noticed a man crouched down near the door, aiming a rifle at 

him. Aukshun quickly slammed the door, moved away from 

behind the door, and as he was attempting to lock the door, 

six shots were fired in rapid succession through the trailer 

door. A subsequent investigation revealed that the firearm 
used was a Ruqer Mini-14 ,223 semi-automatic rifle belonginq 

to Trask and that the height and angle at which the bullets 

entered the door would have hit a person between the 

midsection and just below the hip, depending on where the 

person was standing. 

Immediately after the shooting, Aukshun, in fear for his 

life, got his handgun and attempted to telephone the sheriff. 

The telephone, although working properly earlier in the 

evening, was dead. Aukshun then ran approximately 1/8 mile 

to his nearest neighbor's home and called the Yellowstone 

County Sheriff's Office. In the meantime, Gill remained in 

the trailer, lying frightened in the bathtub and in the dark. 

Deputy Steven Harms of the Yellowstone County Sheriff's 

Office answered the call. The investigation revealed that 

the telephone line to the trailer had been cut with a sharp 

object, both before and after the line entered the junction 

box located on the outside of the trailer. The T.V. cable 

had also been cut. Footprints, later identified as belonginq 

to Trask, were discovered both beneath the telephone box and 

where Aukshun testified that the man with the rifle had been 

kneeling. Gill told Deputy Harms that she thought that Trask 

was the one who fired the rifle and then relayed to Deputy 

Harms that she was once married to Trask and that Trask had 

told her that if she ever began dating other men he would 

kill her and the particular man involved. 

Four days after the shooting, deputies located Trask at 

the Parkside Lodge Alcohol Treatment Center near Denver, 

Colorado. On January 27, 1987, following a Miranda warning, 

Detective Jensen obtained a statement from Trask. In his 

statement, Trask admitted that he remembered shooting at 

Aukshun's trailer door on January 23, 1987 and burying his 

Ruger Mini-14 .223 rifle in some rocks near his sawmill 

because of his concern about firing it at Aukshun's trailer 
door. Upon following Trask's directions, Jensen was able to 

locate the buried Ruger Mini-14 .223 rifle along with several 

boxes of .223 ammunition. The Ruger Mini-14 .223 rifle, the 

ammunition, and the six cartridge casings collected near the 

Aukshun's trailer door on January 23, 1987, were sent to a 

FBI laboratory for comparison. The FBI report concluded that 

the six cartridge casings were fired from Trask's Ruger 

Mini-14 .223 rifle. 

Trask also stated in his statement that prior to the 

shooting, he had spent the day drinking at a tavern and that 

he was intoxicated when he drove to Aukshun's trailer. He 

stated that he bought the Ruger Mini-14 .223 rifle 

approximtely two weeks prior to January 23, 1987 and that he 

recalled taking the rifle with him to the Aukshun's trailer. 

Trask acknowledged that he carried wire-cutting tools in his 

pickup and that he knew his ex-wife, Gill, was living at the 

trailer when he fired the six .223 rounds into it. He also 

recalls parking on the southside of the railroad tracks and 

driving, after the shooting, to a local tavern to cash a 

check and purchase more beer. 

Trask was charged by information on March 4, 1987, with 

the offense of felony assault, $ 45-5-202(2) (b), MCA. Trask 

pled not guilty and on April 30, 1987, filed his notice, 

pursuant to S; 46-14-201 (I), MCA, indicating he would rely on 

a mental disease or defect to prove that he did not have the 

particular state of mind which is an essential element of the 

offense charged. The District Court granted Trask's motion 

for a psychiatric examination and he was subsequently 

examined by Dr. Joseph Rich, a psychiatrist. 

Trask waived his right to a jury trial and the matter 

was tried before the District Court of the Thirteenth 

Judicial District. After the trial, the District Court filed 

its finding of facts and conclusions of law on October 2, 
1987, finding that Trask had the requisite mental state and 

therefore finding him guilty of the offense of felony assault 

under § 45-5-202 (2) (b) , MCA. Following a presentence 

investigation, the court sentenced Trask to eight years in 

the Montana State Prison for the offense of felony assault 

along with a consecutive two year term, pursuant to § 

46-18-221, MCA, because Trask used a firearm in committing 

the assault. The court subsequently ordered both sentences 

suspended subject to certain conditions. Trask appealed his 

conviction on February 16, 1988. 

The sole issue presented on appeal is whether sufficient 

evidence existed to sustain Kenneth Trask's conviction of 

felony assault under S 45-5-202(2) (b) , MCA. 

Trask argues that the State failed to prove beyond a 

reasonable doubt that Trask had the requisite mental state to 

commit the offense of felony assault, S 45-5-202(2) (b), MCA, 

when he fired the six shots at Aukshun's trailer door. In 

arguing this contention, Trask primarily relies upon the 

opinion of the expert witness, Dr. Joseph Rich. After 

evaluating Trask, Dr. Rich concluded that Trask suffered from 

a mental disease, resulting from major depression and alcohol 

related problems, and therefore was incapable of acting 

knowingly or purposely. Trask then argues that the State 

failed to offer any testimony that would rebut Dr. Rich's 

opinion regarding Trask's mental state and therefore failed 

to prove beyond a reasonable doubt that Trask committed the 

offense of felony assault. We disagree. 

The statute under which Trask was charged and convicted 

is $ 45-5-202(2) (b), MCA, which reads that " [a] person 

commits the offense of felony assault if he purposely or 

knowingly causes . . . reasonable apprehension of serious 

bodily injury in another by use of a weapon . . . . " The 

requisite mental state under this statute is either purposely 
or knowingly. The definition for 'purposely1 includes when a 

person's conscious object is to engage in a particular 

conduct or to cause a particular result. Section 

45-2-101(58), MCA. The definition for 'knowingly' includes a 

person who is aware that it is highly probable that a 

particular result will be caused by his conduct. Section 

45-2-101 (33), MCA. 

In the present case, the record reveals that 

approximately two weeks before the shooting, Trask bought the 

.223 caliber Ruger Mini-14 semi-automatic rifle that he used 

in the shooting incident. Detective Jensen testified that 

the ammunition used in the shooting was probably a full metal 

jacket variety, considered ideal for penetrating, especially 

an object such as a trailer house door. On January 23, 1987, 

the day of the shooting, Trask voluntarily consumed excessive 

amounts of alcohol before and after the shooting incident. 

Before engaging in the shooting, Trask parked his truck 

approximately 286 feet from Aukshun's trailer and on the 

opposite side of an eight foot high railroad embankment. The 

truck therefore was not visible from Aukshun's trailer. 

Trask then traversed the 286 feet to the trailer and 

proceeded to cut the telephone line leading into the trailer 

and. just outside the junction box. The telephone line, 

however, was also cut inside the junction box, which required 

unscrewing a small screw to remove the cover from the box. 

The record also indicates that Trask unlatched and 

opened the screen door, such that anyone appearing at the 

door opening would be fully exposed. Trask had his rifle 

aimed at the door when Aukshun opened it. Immediately after 

Aukshun slammed the door closed, Trask fired the six shots 

into the door. Trask then fled the scene, buried the rifle 

and ammunition, and subsequently checked himself into an 

alcohol treatment center near Denver, Colorado. In addition, 
the record reveals that he knew that his ex-wife, Gill, lived 

in the trailer with Aukshun and that he had previously made 

threats that if she ever began dating other men he would kill 

her and the particular man involved. 

Trask's contention that Dr. Rich's opinion that he, 

Trask, was incapable of acting purposely or knowingly was 

uncontroverted is unfounded in light of the above evidence. 

Upon reviewing this issue, a conviction may not be overturned 

when the evidence presented, viewed in the light most. 

favorable to the prosecution, would permit a rationale trier 

of fact to find the essential elements necessary to establish 

the offense. State v. Lundblade (Mont. 1986), 717 P.2d 575, 

577, 43 St.Rep. 732, 733-34 (citing Jackson v. Virginia 

(1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 

560). This standard applies regardless of whether a judge, 

as in the present case, or a jury is acting as the trier of 

fact. See, e.g., State v. Tibbitts (Mont. 1987), 733 P.2d 

1288, 1290-92, 44 St.Rep. 439, 441-42. The trier of fact 

therefore is responsible for determining whether a defendant 

has the requisite mental state to be convicted under the 

statute charged. State v. Doney (Mont. 1981), 636 P.2d 1377, 

1382, 38 St.Rep. 1707, 1712-13; State v. Hardy (1980), 185 

Mont. 130, 135-36, 604 P.2d 792, 795-96; State v. Jackson 

(1979), 180 Mont. 195, 205, 589 P.2d 1009, 1015 (citing State 

v. Madden (1954), 128 Mont. 408, 416, 276 P.2d 974, 978). 

Mental state may be inferred from circumstantial evidence, 

including a defendant ' s actions and evidence found 

surrounding the alleged offense. Hardy, 185 Mont. at 136-37, 

604 P.2d at 796; Jackson, 180 Mont. at 205, 589 P.2d at 1015 

(citing Madden, 128 Mont. at 416, 276 P.2d at 978). Further, 

the interpretation of an expert witness's opinion and the 

amount of weight given to that opinion compared to the other 

evidence presented is within the province of the trier of 
fact. Doney, 636 P.2d at 1381, 38 St.Rep. at 1711; Hardy, 

185 Mont. at 136, 604 P.2d at 796. 

The crucial determination for the trier of fact in thi-s 

case is whether Trask acted purposely or knowingly. While 

Dr. Rich's opinion may tend to establish that Trask suffered 

from a mental disease, the evidence is overwhelming that 

Trask nonetheless acted purposely or knowingly in connection 

with the shooting incident. The evidence presented allowed 

the trier of fact to determine that Trask acted purposely or 

knowingly when he attempted to shoot Aukshun, as well as when 

he performed successfully all the actions necessary that 

brought him to Aukshun's trailer. Fleeing the scene 

afterwards and burying the rifle and ammunition is also 

evidence that demonstrates he acted purposely or knowingly. 

Upon reading the District Court file, including the 

transcripts and the letters submitted by family, friends, 

acquaintances, and psychiatrists, we acknowledge that the 

file is replete with information supporting Trask and his 

progress towards becoming a contributing member of society. 

The District Court, which suspended Trask's sentence subject 

to conditions, including refraining from visiting places 

where intoxicating beverages are the chief items of sale and 

continuing with necessary treatment, apparently took note of 

Trask's pursuits and accomplishments. 

The evidence and the law, however, supports the District 

Court. We therefore hold that substantial credible evidence 

exist to support the District Court's finding that Trask, 

beyond a reasonable doubt, purposely or knowingly caused 

reasonable apprehension of serious bodily injury in another. 

Affirmed. / 
;7:#k cA* 

hief Justice