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. CLERKOF 5U;PREiilECOIJR' STATEOf P<?QNP9P44

APPEAL FROM: District Court of theThirteenth 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.MarcRacicot,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: SubmittedOnBriefs: April 11, 1991 Decided: July 2, 1991

ClerkJustice 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 ?j45-5-207,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 drinkingwith friends in Billings. Testimony at trial conflicted regarding the time the couple left thenightclubknownasT-Birds, theroutethey tookhome,and,most importantly,theeventsthattranspiredduring the ride home. Yancey, who is 5'3" tall and weighs 108 lbs., testified that

on theway home defendant accused her of spending money on someone else, called her a tramp and a whore,grabbed herby thehair,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 herhands 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 4a.m., over three hours later. Hekicked her inthehead,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 tobeat her. He followedher into thebathroom,where he began to draw a bath. He told her that she needed to get cleaned up to go to thehospital. When she went into the living room to get away fromhim,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 onhis ownbehalf and testified that he and Yancey began arguing on theway 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 thevehicle. 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 Yanceyhad jumped out of theJeepwhile itwasmoving. 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 thehead and body with cowboy boots could possibly causeprotracted loss or impairmentof

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 thevictim in a substantial risk of seriousbodily 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 sovague that it is void on its face

or that it is vague as applied in his particular situation. City of Choteauv. Joslyn, 208Mont. 499, 505, 678P.2d 665,668 (1984). "A statute is void on its face if it fails to give a person of ordinary intelligence fair notice thathis contemplated conduct is forbidden." Statev. Woods, 221Mont. 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 limitedto 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 $50,000or imprisoned in the stateprison for a term not to exceed 10 years, or both. (Emphasisadded.) Section 45-5-207,MCA. Defendantargues that the statute isvague on its facebecause 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 endangermentby engaging innegligent or recklessconduct. 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 knowinglywith respect to conduct or to a circumstancedescribedby a statutedefining anoffense 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 offensewhen 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 aperson is aware of ahigh probability of its existence.Equivalent terms such as "knowingtt or "with knowledgett have the samemeaning. Accordingly, a defendant commits the crime of criminal endangerment whenhe isaware that there is ahigh probability that his conductmay cause a substantial risk of death or seriousbodily injury to another. By incorporating the intent element of knowingly, a mental state that is adequately defined by statute, the legislaturehasgiven fair warning of themental staterequired in order to be convicted of felony criminal endangerment. The use of the mental state of knowingly does not render a statute unconstitutionallyvague. 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 statutesdo not define thephrase substantial risk of death. Thephrase isnot so arcane or obscure, however, as togive 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.tgWebstergsat 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 thecrime 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 injuriesthatmustbe sufferedby thevictim. 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 thevictim 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 seriousbodily injury. Defendanthas not persuaded us that the statute is unconstitutionally vague on its face. Nor is the statuteunconstitutionallyvague 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 threehours. With cowboy boots, he kicked her in the head, the stomach, and almost every otherpart of her body. Surely, aperson of ordinary intelligence would understand that such conduct created a substantial risk of death or seriousbodily injury.Did theDistrict Court err in refusingdefendant'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 riskofdeathexist, it isnot necessary that theperson die; however, in order for a substantial risk of death to exist, it isnecessary that a condition or injury exist that without treatment of which, the likelihood of death increases. A substantial risk of death ismore 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 thevictim 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 ofdeath is composed of commonly understood words. The jury was perfectly capable of determining whether defendant'sconduct posed a substantial risk of death without an instruction defining the term. The instructionclouded, rather thanclarified, the issues for the jury. The District Court did not err in refusing it. Affirmed. /

We Concur: