No. 90-593 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

RANDALL DEAN CRISP, 

Defendant and Appellant. 

CLERK OF 5U;PREiilE COIJR' 

STATE Of P<?QNP9P44 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Russell Fillner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gary E. Wilcox, Attorney at Law, Billings, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Patricia J. Jordan, Assistant Attorney General, 

Helena, Montana 

Dennis Paxinos, Yellowstone County Attorney, 

Billings, Montana; Charles Bradley, Deputy County 

Attorney, Billings, Montana 

Filed: 

SubmittedOn Briefs: April 11, 1991 

Decided: July 2, 1991 

Clerk 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

A jury impaneled in the Thirteenth Judicial District Court, 

Yellowstone County, found defendant and appellant, Randall Crisp, 

guilty of one count of criminal endangerment, a felony. Defendant 

appeals. We affirm. 

The following issues are raised on appeal: 

1. Is ?j 45-5-207, MCA, which defines criminal endangerment, 

unconstitutionally vague? 

2. Did the District Court err in refusing defendant's 

instruction defining "substantial risk of death"? 

Defendant and Renae Yancey had lived together off and on for 

five years. On March 16, 1990, they were living in an area of 

Billings known as Lockwood. They spent that evening drinking with 

friends in Billings. Testimony at trial conflicted regarding the 

time the couple left the nightclub known as T-Birds, the route they 

took home, and, most importantly, the events that transpired during 

the ride home. 

Yancey, who is 5'3" tall and weighs 108 lbs., testified that 

on the way home defendant accused her of spending money on someone 

else, called her a tramp and a whore, grabbed her by the hair, beat 

her head between the seats, hit her in the shoulder and face, and 

threatened to kill her. Defendant drove past the turnoff to their 

trailer and stopped in a field. He opened the passenger door and 

yanked her out by her hair. When she landed on the ground on her 
hands and knees, defendant, who is 6'4" tall and weighs between 

205 and 210 lbs., proceeded to stomp on her and kick her with his 

cowboy boots until about 4 a.m., over three hours later. He kicked 

her in the head, neck, shoulder, arms, elbows, wrists, hands, back, 

chest, stomach, shins, buttocks, knees, andthighs--in short, every 

part of her body. She lost consciousness several times. He 

threatened to kill her numerous times. 

She further testified that, after he quit beating her, 

defendant yanked her back into the Jeep, and took her to their 

trailer. There, he pulled her out of the car by her hair, pushed 

her up the steps, and continued to beat her. He followed her into 

the bathroom, where he began to draw a bath. He told her that she 

needed to get cleaned up to go to the hospital. When she went into 

the living room to get away from him, he grabbed a steak knife and 

threatened to kill her. She fell against a cupboard and crawled 

to the couch. He yelled at her for bleeding on the couch, then 

went to turn off the bath. She ran out of the front door and 

sought assistance from the neighbors. 

Defendant took the stand on his own behalf and testified that 

he and Yancey began arguing on the way home. At one point, Yancey 

started kicking him. He struck back at her, slapping her on the 

arm, leg, shin, foot, and ribs. After he had resumed driving, he 

heard the door to the Jeep open and saw Yancey falling out of the 
vehicle. He grabbed her foot, but did not have the strength to 

pull her back into the Jeep. She fell out. 

Law enforcement officers were called at approximately 

4:30 a.m. The deputy who first responded to the call testified 

that Yancey was extremely afraid that defendant was going to kill 

her. Defendant was immediately arrested. He told the deputies 

that Yancey had jumped out of the Jeep while it was moving. At the 

Yellowstone County Detention Facility, he stated that any blood on 

his clothing would be hers. 

Dr. Dennis Tek, the emergency room physician, testified that 

Yancey had suffered numerous bruises about the face, head, neck, 

chest, back, shoulders, thighs, and left shin. She had swelling 

over the left cheekbone and a two centimeter laceration on her 

scalp in the right superior temporal area. 

Dr. Tek stated that being kicked about the head and body with 

cowboy boots could possibly cause protracted loss or impairment of 

a bodily member or organ, serious permanent disfigurement, or 

death. He testified that Yancey had received a concussion, which 

could have been a life-threatening condition if she had lost 

consciousness. In response to the State's hypothetical on 

redirect, he answered that a two-hour beating that rendered the 

victim unconscious could place the victim in a substantial risk of 

serious bodily injury. He noted on recross-examination, however, 
that the injuries Yancey actually received from this incident did 

not pose a substantial risk. 

The jury found defendant guilty of criminal endangerment, a 

felony, but acquitted him of resisting arrest, a misdemeanor. 

Defendant was sentenced to ten years in the Montana State Prison, 

with all ten suspended. This appeal followed. 

Is 5 45-5-207, MCA, which defines criminal endangerment, 

unconstitutionally vague? 

A defendant may challenge the constitutionality of a statute 

by arguing that the statute is so vague that it is void on its face 

or that it is vague as applied in his particular situation. City 

of Choteau v. Joslyn, 208 Mont. 499, 505, 678 P.2d 665, 668 (1984). 

"A statute is void on its face if it fails to give a person 

of ordinary intelligence fair notice that his contemplated conduct 

is forbidden." State v. Woods, 221 Mont. 17, 22, 716 P.2d 624, 627 

(1986) ; Joslyn, 208 Mont. at 505, 678 P.2d at 668. No person 

should be required to speculate as to whether his contemplated 

course of action may be subject to criminal penalties. State v. 

Conrad, 197 Mont. 406, 412, 643 P.2d 239, 243 (1982). 

The statute challenged in this case defines the offense of 

felony criminal endangerment as follows: 

(1) A person who knowinsly ensases in conduct that 

creates a substantial risk of death or serious bodily 

injury 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. 

(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.) 

Section 45-5-207, MCA. 

Defendant argues that the statute is vague on its face because 

it does not require a specific intent to cause the risk. In State 

v. Clawson, 239 Mont. 413, 421, 781 P.2d 267, 272 (1989), we 

indicated that a defendant may commit the offense of felony 

criminal endangerment by engaging in negligent or reckless conduct. 

A plain reading of the felony criminal endangerment statute, 

however, establishes that the State must prove that the defendant 

acted knowingly. If the State can establish only that the 

defendant acted negligently, the defendant may be convicted of 

violating 5 45-5-208, MCA, misdemeanor negligent endangerment; he 

may not be convicted of violating 5 45-5-207, MCA, felony criminal 

endangerment. 

Knowingly is defined in 5 45-2-101(33), MCA, as follows: 

[A] person acts knowingly with respect to conduct or to 

a circumstance described by a statute defining an offense 

when he is aware of his conduct or that the circumstance 

exists. A person acts knowingly with respect to the 

result of conduct described by a statute defining an 

offense when he is aware that it is highly probable that 

such result will be caused by his conduct. When 

knowledge of the existence of a particular fact is an 

element of an offense, such knowledge is established if 

a person is aware of a high probability of its existence. 
Equivalent terms such as "knowingtt or "with knowledgett 

have the same meaning. 

Accordingly, a defendant commits the crime 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. By incorporating the intent element of 

knowingly, a mental state that is adequately defined by statute, 

the legislature has given fair warning of the mental state required 

in order to be convicted of felony criminal endangerment. The use 

of the mental state of knowingly does not render a statute 

unconstitutionally vague. City of Billings v. Batten, 218 Mont. 

64, 70, 705 P.2d 1120, 1124 (1985). 

The defendant also takes issue with the phrase ttsubstantial 

risk of death.It He argues that the term fails to define the type 

of conduct proscribed by the statute. 

Montana statutes do not define the phrase substantial risk of 

death. The phrase is not so arcane or obscure, however, as to give 

insufficient notice of the conduct prohibited by the criminal 

endangerment statute. ggSubstantialgg is defined as "not imaginary 

or illusory: real, true." Websterts Ninth New Collegiate 

Dictionary 1176 (1986). "Riskgt is defined as ggpossibility of loss 

or injury: peril.tg Webstergs at 1018. Thus, the term substantial 

risk of death, warns a person of ordinary intelligence that if he 

engages in conduct that could result in a real possibility of loss 

or injury--in this case, death--he could be found guilty of the 
crime of criminal endangerment. The fact that the phrase is not 

defined in the code does not make the statute vague on its face. 

Defendant also argues that the term substantial risk of death 

is ambiguous because it fails to set forth the degree of the 

injuries that must be suffered by the victim. Defendantt s argument 

rests on the faulty premise that the victim's injuries must pose 

a substantial risk of death. The statute, however, does not 

require that the victim suffer actual physical injury. See Campas 

v. Superior Court, 767 P.2d 230, 232 (Ariz. Ct. App. 1989) 

(interpreting Arizona's reckless endangerment statute). It 

requires only that the defendant engage in conduct that creates a 

substantial risk of death or serious bodily injury. Defendant has 

not persuaded us that the statute is unconstitutionally vague on 

its face. 

Nor is the statute unconstitutionally vague as applied to the 

facts of this case. Taking the facts in the light most favorable 

to the State, as we must on review, City of Whitefish v. 

OtShaughnessy, 216 Mont. 433, 437, 704 P.2d 1021, 1024 (1985), 

defendant severely beat Renae Yancey for three hours. With cowboy 

boots, he kicked her in the head, the stomach, and almost every 

other part of her body. Surely, a person of ordinary intelligence 

would understand that such conduct created a substantial risk of 

death or serious bodily injury. 
Did the District Court err in refusing defendant's instruction 

defining "substantial risk of death"? 

At trial, the District Court refused to give defendant's 

instruction defining substantial risk of death. The instruction 

read as follows: 

Substantial risk of death means something more than 

bodily injury. A substantial risk of death is posed by 

injuries which are graver and more serious. In order 

that substantial risk of death exist, it is not necessary 

that the person die; however, in order for a substantial 

risk of death to exist, it is necessary that a condition 

or injury exist that without treatment of which, the 

likelihood of death increases. A substantial risk of 

death is more than a risk of death. 

The instruction erroneously indicates that the victim must 

sustain an injury that poses a substantial risk of death. As we 

noted above, however, the statute does not require that the victim 

suffer any injuries. It requires only that the defendant engage 

in conduct that creates a substantial risk of death or serious 

bodily injury . 

Furthermore, the jury need not be instructed on words or 

phrases of common understanding or meaning. State v. Gould, 216 

Mont. 455, 477, 704 P.2d 20, 34 (1985); State v. Camitsch, 192 

Mont. 124, 138, 626 P.2d 1250, 1258 (1981). As we stated earlier, 

substantial risk of death is composed of commonly understood words. 

The jury was perfectly capable of determining whether defendant's 
conduct posed a substantial risk of death without an instruction 

defining the term. 

The instruction clouded, rather than clarified, the issues for 

the jury. The District Court did not err in refusing it. 

Affirmed. / 

We Concur: