*1 231 OF MONTANA, STATE Respondent, Plaintiff v. LAMBERT,
DAVID B.
Appellant.
Defendant
No. 95-335.
19,
September
Heard
1996.
19,
September
1996.
Submitted
December
1996.
Decided
St.Rep.
1379.
See C.J.S. *2 Hooks, Defender, F. Appellant: Appellate For William Helena. Mazurek, General, Respondent: Joseph Attorney Cregg For P. Attorney General, Helena; George Com, Assistant Coughlin, W. Hamilton. Attorney, County Ravalli Opinion HUNT delivered the of the Court.
JUSTICE Twenty-first Court, trial in the Judicial District Following a (Lambert) County, guilty David B. Lambert was found Ravalli endangerment, felony, and was sentenced to a term of years appealed. at the Montana State Prison. Lambert remand with
We reverse and instructions. following address the issue:
We apply Did the District Court an incorrect mental state element to endangerment? of criminal the offense
FACTS 20, 1994, Peterson, along Christine with her three August On theirs, driving Highway south on U.S. children and a friend of was Montana, group just hometown. The had Darby, 93 toward Peterson’s they clothes. As day shopping in Missoula for school spent Stevensville, travelling at or 55 the town of about 50 approached hour, pulling out of a roadside per Ms. Peterson saw a car miles car, by Lambert, proceeded That driven across lot to her left. parking car, immediately ahead of Ms. Peterson’s and Ms. highway brakes, to collide with the middle or expecting her applied Peterson Instead, car. turned his car toward of Lambert’s Lambert rear side car; north in Ms. Peterson’s facing his car was now Ms. Peterson’s lane, the two vehicles collided head-on. southbound immediately at the scene Witnesses after collision occurred if noted that Lambert smelled and acted as he had drinking. been A officer, highway patrol questioning Montana after Lambert and con- test, ducting sobriety a field determined that Lambert had indeed been drinking suspected that he was intoxicated. Lambert was provide unable to the officer a driver’s proof license or of auto insurance, and the officer driving soon discovered that Lambert’s privileges previously had been revoked. Lambert ultimately charged following with the endangerment; DUI; offenses: criminal driving suspended revoked; while license failure to have auto insurance; and failure to use a seatbelt. proceeded charges
Lambert to trial endanger- DUI, having previously guilty ment and entered pleas to the other charges. presented three After the State case-in-chief, its Lambert acquittal moved for an the criminal charge, claim- ing beyond that the State had not proven reasonable doubt that “knowingly,” Lambert had acted the requisite mental state for the offense of criminal The court denied Lambert’s mo- tion, hearing arguments after first from Lambert and the State regarding which definition of “knowingly” applied to criminal endan- germent.
After the defense rested without calling witnesses, the parties *3 and jury the court settled instructions. The court decided instruct jury the on three out of four definitions of contained in a pattern jury instruction, jury instruct the that Lambert did not need to intend the result that occurred order to have acted with requisite mental state. The court also jury decided to instruct person that a an criminally intoxicated condition is responsible for and that an intoxicated condition could not be into taken account in determining the existence of a mental state which is an objected element of the offense. Lambert to these instructions. jury finding returned a verdict of guilty Lambert criminal endangerment, but did not return a charge. verdict the DUI subsequently years Lambert was of sentenced to term at the Montana This appeal State Prison. followed.
DISCUSSION apply Did the District Court an incorrect mental state element to endangerment? offense argues Lambert that the District Court misinterpreted mean- ing “knowingly,” application mental state element We review a district court’s inter-
offense of
interpretation
ofthe
to determine if that
application
or
law
pretation
374,
State v. Christensen
Mont.
or
was correct.
application
Section the offense of criminal if he commits “know- person in conduct that creates a substantial risk of death or ingly engages 45-2-101(34), MCA, injury pro- to another.” Section bodily “knowingly”: definitions of multiple vides with to conduct or to a circum- person knowingly respect acts [A] by defining person described a statute an offense when stance conduct or that the circumstance person’s aware of the own is respect to the result ofconduct person exists. A acts defining an offensewhen the is aware by statute described be highly probable that the result will caused that it knowledge particular conduct. When of the existence person’s offense, knowledge an is established if a fact is an element of high probability of a of its existence. person is aware acquittal, the court determined that denying Lambert’s motion the offense of criminal the mental state element of “knowingly,” showing evidence that a endangerment, could be established his conduct. The court decided that the State was aware of defendant go for the case to sufficient evidence on this issue presented had instructions, the court determined Later, settling jury when jury. as to three distinct definitions it instruct would jury, reads as follows: given No. “knowingly.”Instruction Knowingly knowingly: acts
A (1) aware his conduct when (2) that his conduct aware under the circumstances when he is a crime or constitutes high that his probability there exists the when he is aware added.) (Emphasis result. specific will cause a an incorrect mental state applied that the court argues
Lambert
court,
endangerment, and that
offense of criminal
element to the
law,
denying
erred in
ofthe
interpretation
mistaken
relying
on this
*4
instructing
in
and erred
acquittal
motion for an
Lambert’s
“knowingly.”
of
We will
definition
applicable
respect
law, and then determine
interpretation
review the court’s
rely
interpretation
on this
for the court to
proper
it was
whether
denying
the law in
Lambert’s
in
acquittal
motion for
instructing
jury.
“knowingly
Lambert contends that
the different definitions of
45-2-101(34), MCA,
in
found
distinguish between different ele-
§
offenses,
ments of criminal
and that therefore “the statute defining
governs
the offense”
which
“knowingly”
definition of
applies. Lambert
contends that
the offense of criminal endangerment
is defined in
construction,
terms
the result
conduct. Under that
Lambert
argues
in
to prove
that
order
the “knowingly’ element of criminal
endangerment beyond
doubt,
a reasonable
the State must establish
probability
that an accused was aware of the high
that his conduct
would cause
substantial
risk of death or
bodily injury
serious
another. Lambert contends that we reached this same conclusion in
Crisp (1991),
State v.
249 Mont.
endangerment
statute. The defendant
in that case alleged that the
unconstitutionally vague
statute was
because it did not require a
specific intent
to cause the substantial
risk. We noted that
appropriate mental state was “knowingly,” set out the definitions of
(these
“knowingly’ provided
45-2-101(33),
MCA
§
same definitions
“knowingly”
are now found in
45-2-101(34),
(1995)),
MCA
concluded that “[a]ccordingly, a defendant commits the crime of
criminal endangerment when he
high
is aware that there
prob-
ability
may
that his conduct
cause
risk of death or
bodily injury
Crisp,
another.”
The State that holding Crisp our imply does not that only there can be one definition of “knowingly’ applied to the offense way, Put another the State argues thát in defining endangerment we Crisp, did in we were merely asserting one aof number of “knowingly’ different definitions of apply. could The State also Crisp contends that is not controlling here because the issue of which definition of “knowingly” applied to crimi- nal was endangerment not before us in that case. In event, the argues State that the “knowingly definition of Crisp we used in incorrect; language of the criminal statute provides plainly to a “knowingly” refers defendant’s not the result of his conduct. agree
While we with the State that our holding Crisp does not directly disposition us, control of the matter before we cannot agree Crisp applied we wrong definition endangerment. Moreover, the offense of criminal agree we cannot *5 236 “knowingly” 45-2-101(34), the of found in
that one of definitions § criminal endangerment. Finally, the offense of MCA, applicable to definition do the of agreeing “knowingly we that issue what previously to has not been before this Court does applies this offense consistently ignore not us to how we have articulated require Crisp, 983; 814 P.2d at State elements criminal See 94, 98, Mont. 915 P.2d 195. find Smaage v. We dispose of persuasive, and this issue in arguments Lambert’s favor. endangerment of the criminal statute is that it em- reading
Our portion The of the that are phasizes result over conduct. statute we in, reviewing particularize that, engaged does not the conduct if here Rather, may person engage ofthe offense. a results the commission variety of conduct and still commit the offense of criminal in a wide a provided that the conduct creates substantial risk endangerment, bodily It this singular or harm. is the avoidance of of death serious harm, to result, attempts of death or serious law risk maintain. to particularized gives no conduct which rise being
There element the defini- applying that offense’smental endangerment, only ofhis “knowingly that an accused need be aware conduct tion of probable posed ofthe risks to others appreciation is incorrect. It is endangerment; for criminal by culpability one’s conduct that creates otherwise, appreciation where could lie for mere culpability were it shooting hunting rifle, a car some driving such as or ofone’s very results could follow. unfair view, statutory recognizes scheme and ad-
In our relevant MCA, out, 45-2-101(34), points concerns. As Lambert § dresses these person knowingly respect “a acts with on the one hand that provides n an offense when the by defining described a statute to conduct ... conduct....”, and provides of the own person’s is aware person respect to the result “[a] acts hand that other an defining a statute offense when by conduct described of is aware that the result will be caused highly probable that it is added.) (Emphasis Conduct not described conduct.” person’s MCA, “a risk the result of conduct is: substantial 45-5-207(1), but § bodily or harm.” of death serious MCA, the statute 45-2-103(4), explains “[i]f addition, § respect state with particular an mental
defining prescribes offense among elements distinguishing a whole without to the offense as to each element.” offense, prescribed applies mental state statute that the state endangerment provides mental distinction, “knowingly” applies, apparent without elements (2) that creates of death engage conduct risk bodily According 45-2-103(4), MCA, harm to another. “knowingly” applies both conduct and the result that conduct. “knowingly” conclude that the element of We criminal endan germent contemplates high prob defendant’s awareness of the ability that the conduct in which he is engaging, whatever may be, bodily will cause a substantial risk of death or serious injury to another. incorrectly applied
We hold District Court as the mental element the offense of criminal the defini only tion that a defendant need be *6 aware his conduct. We also hold when the District Court relied on this misin terpretation of the in denying acquittal law Lambert’s motion for jury, in the instructing the court committed reversible error. The general effect misinterpretation, of court’s manifest in the two of, rulings complained towas alter the State’s burden of proving beyond a reasonable doubt the elements of prove the offense: to a defendant was aware of his is thing; conduct one to prove high probability was aware of the of posed by the risks his conduct is quite another. The particular effect of the court’s a interpretation is process violation of due rights provided by II, as Article Section 17 of the Montana Constitution.
We remand this case to the to District Court reconsider the motion acquittal for under the in opinion. standard set forth this If the presented evidence at trial was to not sufficient establish the element that the defendant was aware of the of high probability posed the risk the motion for acquittal granted. must be If the court finds that the State’s evidence to was sufficient withstand the motion acquittal, then grant the court must a new trial because erroneous instruction. We reverse and remand for reconsidera- tion of appellant’s acquittal. motion for If the acquittal motion for is denied then a new trial granted. must be
Reversed and remanded with instructions. GRAY,
JUSTICES LEAPHART and TRIEWEILER concur. specially concurring. JUSTICE TRIEWEILER majority I concur I to opinion. response write in which, my opinion, ignores plain dissent in ofthe language statute we have asked to construe, been relies authorities which are not decide, to
remotely to the issue we have been asked and would related felony punishable by simple negligence years prison as ten in treat $50,000 fine. and a correctly
Although interpret states that when we dissent nor omit we should neither insert what has been omitted what statute inserted, repeatedly language omits critical from has been the dissent 45-5-207, MCA, The when it discusses that statute. criminal endan- not, simply suggests, punish germent statute does dissent punishes It “knowingly engages in conduct.” someone someone who in that creates a substantial risk “knowingly engages who conduct Any analysis bodily injury.” straightforward of what death or serious statute must refers to the criminal that is description of the kind conduct qualitative include repeatedly language. that critical ignores in. The dissent engaged statute, clear, plain language it is on the example, For based that a drove prove not be sufficient to that it would lane if he or she assumed northerly in a direction a southbound statute, plain its that the road was closed for construction. in a only type conduct if a drove terms, punish would knowing lane that southbound northerly direction in a southbound Any using interpretation that lane. other might traffic also be prohib- conduct that is knowingly engaging It is not nonsensical. that is knowingly engaging type ited; specific it is separate “knowingly” grammatically prohibited. impossible It presented by person’s conduct. specific danger from out that based on goes great lengths point The dissent that Lambert was was, obviously, this case there evidence facts in of harm to would create a substantial risk that his conduct aware *7 his However, say us that impossible I it is for to agree. .others. by jury he finding a the that was aware was based on conviction to a risk of harm others because presented to kind had finding advised that that of jury properly the was never a no difference what Therefore, its it makes be the basis for verdict. the this on evidence in trier of fact could have found based rational had jury have found do what this would case, we not know because to case. applicable the law this correctly regarding instructed it been an by regarding issue cases cited the dissent involved of the None endangerment. the crime of criminal mental state for necessary the necessary related to instruction of them involved None they most, At the crime of criminal mental state for not suffice facts could could facts, conclude that those and discuss Therefore, support to conviction the crime. I no to point see them authority dissent’s reliance on for the issue with which we are concerned in this case. case, this defendant, there evidence that the after consuming beverages, highway wrong direction,
alcoholic entered in the knowing to do so would create a substantial risk harm other highway. However, motorists on the argument based of the dissent, the same conduct could punished felony be as a under circumstances which would have led one to no believe that it was dangerous. example, For assume that the same stretch of highway was under construction and was closed off traffic through points at point entry. north and south of Lambert’s Assume that instead of at entering highway location, Lambert by vehicle driven an State employee Department Transportation turned onto the highway, proceeding northerly in a direction in the southbound lane, that the believing highway but barricades be would honored and no one would using highway. else be Further assume that it was proceeding lane, in Lambert the southbound but had ignored signs, therefore, the construction collided with the Transporta- tion Department interpretation vehicle. Based on the dissent’s statute, it be would the driver of the Trans- portation Department who felony punishable vehicle committed a $50,000 ten in years prison and a fine because the driver of that knowingly engaged vehicle in the same conduct that Lambert en- gaged this case. fact that the driver of every that vehicle had expectation reasonable that what he did was safe would make no difference under the law.
The dissent is based on a grammatically incorrect reading of the statute, support finds no prior Court, in the decisions of this would lead absurd results. reasons, majority
For these I concur with opinion. LEAPHART,
JUSTICE specially concurring. I Court opinion concur and write separately to address fallacy reasoning what I see as the in the of the dissent. At issue is question of which definition of appropriate in the charge endangerment. “Knowingly” context of is defined 45-2-101(33), MCA as follows: respect [A] acts to conduct or to a circum- stance described a statute an defining offense when the person’s is aware of the own conduct or that the circumstance *8 of person knowingly respect A acts result exists. defining person a statute an offense when is aware described be probable it is result will caused highly knowledge particular When of the existence of a person’s conduct. offense, knowledge an of an is established if a fact is element high Equivalent its existence. probability aware of of person terms, knowledge”, “with have the same “knowing” such as or meaning. smorgasbord instructed the approach
The trial court used employ any could one of the definitions contained in jury such that it (1993). 45-2-101(33), #12 MCA Court’s instruction read follows: § knowingly: person A acts
(1) of is aware his conduct or when he (2) is aware under the circumstances that his conduct when he crime or constitutes a
(3) high probability exists that his when he is aware there specific result. conduct will cause that, essence, majority held approach, the has rejecting this to jury applies cannot the choice which definition give
court rather, the the crime which charged; defining statute dictates crime “knowingly” is appropriate. definition definitions this presented jury three to stated: “A first of the The of his Although acts when he is aware conduct.” person conduct, only require person engage that a without crimes some any result, endangerment is not such a crime. For regard MCA, check, 45-6-316(1), only charge issuing a bad example § requires:
(1) issuing a bad check when person A commits the offense of upon a check other order a real or issues or delivers money that it knowing for the will depository payment fictitious depository. paid by the not be check, it be to instruct issuing appropriate
In a trial for bad would “knowingly” when he is aware that a acts is, paid by that the check will not be conduct, when is aware definition, entirely crime, by upon conduct. The focuses depository. regardless of the bad check complete upon passing crime is anyone is, attempts not it matters whether any result. That anyone defrauded. the check or whether negotiate draw a 45-2-101(33), MCA definitions of The (1) nothing pro- more than statutes which do between distinction (without regard result), scribe conduct statutes which not only describe but also focus on the result of that conduct. Justice Nelson in his dissent contends that the crime of criminal to a check it charge is similar bad does not *9 require knowingly respect that the defendant act with to the result he Specifically, of the conduct. reviews numerous decisions of this involving Court and concludes that: In each have focused on conduct which case we creates substan- proscribed by tial risk as that which is a statute. The result of that wholly prior conduct was irrelevant in our decisions. It was irrele- particular vant that no victim was identified as being put at risk issue; the conduct at it was irrelevant that actually no one was injured by Rather, the conduct at issue. entirely we focused on the nature risk-creating of each defendant’s conduct. example, (1996),
For
Justice Nelson cites State v. Smaage
192,
Mont.
915 P.2d
eight
which involved a defendant with
prior
DUIs who was convicted of criminal
drunk,
While
Smaage
city
during early
swerved down
street
morning traffic.
Smaage, 915 R2d at 193. Smaage’s conduct was the driving while
However, in
drunk.
order to convict him of
endangerment,
prove
State had
do more than
that he was aware that there
high
conduct,
is,
of his
probability
prove
was
that
more than that
knowingly
out,
drove his car while drunk. As Justice Nelson points
the State did not have
prove
actually
that his conduct
resulted in
bodily injury.
did, however,
It
prove
have to
that he was aware that
there
a high probability
driving,
that his
under those circum-
stances,
result,
is,
created a
specific
a substantial
risk of death
bodily injury. Smaage,
or serious
Justice Nelson seems to read conduct as the risk inher- conduct; ent in the that the conduct and the result are one the same. contrast, premised Court’s decision is on the understanding (the endangerment) the risk is the result of the conduct. This maintain dichotomy necessary in order to distinction drawn 45-2-101(33), (1993), MCA between offenses proscribe which con- § checks) (e.g., issuing regard duct bad without to result from offenses proscribe specific example, which conduct which creates a result. For restraint, MCA, crime 45-5-301, of unlawful defines the offense § as follows: A commits the offense of unlawful restraint if he purposely authority and without lawful restrains substantially liberty.
another so as to interfere with his The conduct involved is the restraining of another individual. The result is the substantial interference liberty. apparently agrees
Justice Nelson the defendant must be aware of the risk factor. The difference is that he sees the risk factor being part parcel rather than a “result” of the Although may appear conduct. this not to be a meaningful distinction, 45-2-101(33), in the context of MCA there is a substantive By way difference. of example, assume that three men standing are in a field and each has a rifle. Jones fires to the west where there is Smith nothing open but field. fires to the south in the direction of a Smith, grove of trees. Unbeknownst to there is a house in grove where, of trees. Johnson fires to the north in plain view, there ais Each of men knowingly cluster houses. these in the engaged same conduct, i.e., However, shooting a rifle. the legal consequence vary one man’s conduct will depending upon his awareness. Jones’ conduct did not create a risk of harm. Smith’s conduct did create a risk of harm but he was unaware of risk. Johnson’s conduct resulted in a risk of harm of which he should have been aware. given present case,
Under the instruction in the would most *10 rifle). likely find that each man was aware ofhis conduct (shooting the Thus, The first definition of would therefore be satisfied. guilty endangerment Smith could be found of criminal though even “knowledge” jibe he had no of the risk. Such a result does not Rather, the definition of criminal in order to convict endangerment, prove of criminal the State must that the defendant (the risk) highly probable was aware that it was that the would result person’s be caused conduct. deliberating
In of criminal charge endangerment, jury should “A given option not be of definition #1: acts when he is aware of his conduct.” This definition does not bring (endangerment) element of risk into the definition. It does not state that risk is considered to be inherent in the conduct nor does it state (like #3) that he must be aware of the high probability definition jury #1, result. Were the to convict on the basis definition State that, proving despite being would be relieved of its burden of aware risks, proceeded engage the defendant in the conduct in question. proof, negligent endangerment In the absence of such endangerment indistinguishable. become 45-2-101(33), separate MCA sets forth definitions
Section determining appropriate, In which definition is knowingly. charged. to the ofthe offense The court requirements court must look
243 definitions, your take “Here are 3 jury, instruct simply cannot “create” a that the conduct requires Criminal pick.” exist, rise to or give to cause to “Create” means risk. substantial (3d ed. produce ..The Dictionary English Language, Heritage American 1992). “result in.” The conduct words, create means to In other (defi- jury a risk. A instruction “create” or “result in” must question #1) rather than conduct and solely on conduct focuses nition which to this offense. result, apply does not simply foregoing special concurrence. joins in the GRAY JUSTICE dissenting. NELSON JUSTICE properly Court instructed that the District
I hold would endanger- of criminal for the offense state element as to the mental I affirm. and, accordingly, would ment, MCA,1 pertinent part: 45-5-207, provides
Section that creates a knowingly engages A who injury com- bodily or serious to another risk of death includes endangerment. This conduct offense of criminal mits the tree, other knowingly placing log, any in a is not limited to but iron, ceramic, purpose for the steel, or other substance wood harvesting, processing, or manu- or other wood damaging saw facturing equipment. and, look to the words used statute, we must first interpreting direct and plain, unambiguous, are meaning language
if the in terms or in and declare what certain, simply ascertain we what has been omitted therein, inserting neither contained substance 1-2-101, MCA; State v. inserted. See omitting § what has been nor 532, v. 207, 219, (citing 902 R2d State (1995), 273 Mont. Gould 468,469 374, 376, 877 P.2d and Clarke (1994), 265 Mont. Christensen 1088.) 412, 416, 897 P.2d (1995), 271 Mont. Massey v. 45-5-207(1), MCA, defines the majority holds While and, endangerment, the offense of criminal state element of mental conduct, I in terms of the result of hence, proof, burden of the State’s language of the statute contrary, plain that, conclude *11 simply prove the State clearly unambiguously requires conduct, without risk-creating in engaged the defendant probability knowledge or her necessity proving also as that stated, is cited herein of the Montana Code the 1993 version otherwise 1. Unless charged. with which he was committed the offenses when Lambert the version in effect that this conduct would cause a Moreover, result. I believe that our prior case law mandates this interpretation of the statute and does not at all support majority’s view. operative language in the statute is “knowingly engages in
conduct that creates a substantial risk of death or bodily serious injury to another. ...” The language chosen legislature makes unlawful a particular i.e., form of that which creates a conduct— substantial risk of bodily death or serious injury in another. Whether actually this conduct causes the result —death or bodily serious injury immaterial. The term “knowingly”modifies the term “con- —is duct” and specifies the mental state required ofthe defendant during the time that he or she engages in this conduct if it chargeable is to be as the offense of criminal endangerment. It is the conduct which must risk, create the and it knowledge is of or awareness of this conduct that makes engaging in such conduct a criminal offense. So long as defendant engages the conduct and long so as that conduct risk-creating, then, statute, is under the it is irrelevant that the defendant also “know” or be aware that death or bodily injury likely will or will be caused that conduct. short,
In there nothing plain is in the language of the statute that supports majority’s interpretation. Rather, the majority has ef- fectively rearranged the wording 45-5-207(1), MCA, and, hence, statutory its To support majority’s conclusion, elements. statute would have to provide: “A who engages knowing that it creates a substantial risk ...” or “A person who knowingly causes substantial risk ....” That not how the statute written, Rather, however. the mental state element of criminal endangerment focuses on the knowledge defendant’s of his or her risk-creating knowledge conduct and not on his or her of the result of such conduct.
Consequently, so long as the State demonstrated that Lambert’s risk-creating conduct was long proved so as the State that he “knowingly” engaged in this conduct then the State met its burden of proof properly and Lambert was convicted ofcriminal endangerment. making determination, necessary it this is first to focus on the conduct at issue. case,
In this engaged conduct which Lambert and which bodily injury created a substantial risk of death or serious to others driving grossly oncoming was his while intoxicated into the lane of driving privileges traffic while his were revoked. Neither causation causing resulting nor result —his a serious automobile accident *12 the offense of elements of injuries persons to other personal —are risk-creating rather it is his conduct which endangerment; criminal legislature proscribed. risk-creating chargeable conduct to be offense of For this however, requires the statute also it endangerment, Generally, this mental state can be “knowingly.” engaged must be criminal code: ways under Montana’s proven in alternative knowingly respect with to conduct or to acts person [A] defining an when the by described a statute offense circumstance person’s own conduct or that is aware person respect with person exists. A acts circumstance an by defining described a statute offense when result of conduct highly probable that it is the result will is aware knowledge conduct. When of the exist- by person’s be caused offense, knowledge fact is an element of an particular ence of a high probability of its exist- if a is aware of established [Emphasis added.] ence. 45-2-101(33), MCA.
Section case, on this mental state In this the trial court instructed element as follows: knowingly:
A person acts (1) of his conduct or when he aware (2) is aware under the circumstances that his conduct when he constitutes a crime or
(3) that his high probability he is aware there exists the when specific cause a result. conduct will added). 12 (emphasis Instruction No.
Court’s conceding the objects only apparently to definition Lambert (2) (3). The correctness of that conces- of definitions and applicability (1) 12 is aside, it is clear that definition from Instruction No. sion 45-2-101(33), MCA, statutory definition § included within it is statutory endangerment definition of criminal upon based applicable definition state element is the mental clear also this offense. by the statute above, proscribed “conduct” out pointed
As “creates a substantial is that which defining 45-5-207(1), Section bodily injury to another.” or serious risk of death engaged in the defendant required prove The State is MCA. MCA, 45-2-101(33), It does that under “knowingly.” § this conduct i.e., of his that the defendant was “aware demonstrating conduct” — that he conducting that the defendant was aware himself such bodily create a risk of a fashion so as to death injury in another. direct rarely state of mind can be person’s proven
While a evidence, may of a mental state inferred from the existence be the accused and the facts and circumstances connected with acts of offense, 45-2-103(3), MCA, may demonstrated circum- be 79,89,862 stantially. Brogan (1993), 19,25-26. State v. 261 Mont. P.2d the point being The evidence here was that Lambert drank to that, driving privileges revoked, he, heavily intoxicated and nonetheless, parking drove his vehicle from the bar lot into the *13 lane of traffic and collided with the Petersen automobile. oncoming scene, police, emergency responders accident and At the every gave appearance physical Lambert and everyone present, else intoxicated; being grossly belligerent; he was he manifestation of treatment; carnage about the medical he was unconcerned refused of the seriousness of caused; inappropriately he acted view he had situation; empty there full and bottles of beer in his car and were whiskey. consumed bottle of along partially obviously drinking that he had been was aware Lambert —he officer,although he minimized the investigating indicated that to the Moreover, obviously aware that he was he had drunk. he was amount car and then that he did not see the Peterson driving first stated —he lay Christine Petersen. When asked what fault on attempted said: happened, Lambert out, they right thought they there. I up,
Pulled turned and were now, just right like so way. They other were there going were way too them, they going were fast. either I didn’t see have, any rational trier offact could circumstances Under such his con- have, that Lambert was “aware of likely concluded would risk of to create a substantial i.e., that his conduct was such duct”— he, therefore, bodily injury to another —and death or serious may Lambert not have It was irrelevant “knowingly.” acted put any intended to or that he even to cause the accident intended that his at risk. It was sufficient particular or in general one in risk-creat- oncoming into traffic —was driving blind drunk conduct— engaged doing ofwhat he was when that he was aware ing and that conduct. prior
This consistent with our fully supported interpretation is by majority. virtually ignored which, part, the most law case
247 (1989), 413, In State v. Clawson 239 Mont. 267, P.2d we stated that “it is clear that the statute punish is created to reckless or negligent behavior which potential has the inherent resulting bodily injury death or serious to another person.” Clawson, 781 P.2d added). (emphasis at 272
Moreover,
Crisp (1991),
199,
in State v.
981,
Mont.
814 P.2d
we
out that the statute
pointed
require
“does not
that the victim suffer
injury
actual
...
physical
[but rather]
[i]t requires only that
engage
defendant
in conduct that
creates
risk of death
bodily injury.”
or serious
Crisp,
In State v.
(1991),
Willson
241,
250 Mont.
1199,
818 P.2d
we
affirmed the defendant’s conviction of criminal endangerment and his
designation as a dangerous offender where he
through
drove
down-
town Billings
speeds
at
up
100 miles per hour while under the
cocaine,
influence of crank and
with resulting property damage and
personal injury to
Willson,
innocent people.
Likewise, in State v. Brown 454, 270 Mont. 893 P.2d rejected we the notion that either or negli- (§ MCA) gent endangerment 45-5-208, required the State to prove specifically identified put individual at risk *14 defendant’s conduct in firing several gunshots from a moving vehicle in the direction of homes and along highway. vehicles
Similarly,
(1996),
in State
Smaage
v.
276
94,
Mont.
192,
915 P.2d
we affirmed a conviction of criminal endangerment where, having
(one
previously
been
convicted of six DUIs
ofwhich resulted in a death
conviction)2
and negligent homicide
and with a blood alcohol level of
By comparison, Smaage’s
pales
2.
record
in the face of
history.
Lambert’s criminal
According
presentence investigation report, Lambert,
years
age,
at 31
had been
driving
convicted
California;
under the influence 9 times in Montana and
his license
suspended
times;
had
charged
been
or
16
driving
revoked
he had been
while his license
suspended
times;
separate jail
was
or revoked some 20
he had received 11
sentences that
ranged
serving
days
jail
serving
days
jail;
from
two
to
60
he had been fined between
offenses;
$30 and
complete
$1000 for his
he had failed to
court-ordered after-care or
Anonymous; and,
case,
Alcoholics
again
while released on bond in the instant
he was
DUI, driving
suspended
arrested for
while his
eluding
peace
license was
or revoked and
officer.
.250,
through early
the defendant swerved his Buick
morning Helena
Smaage
traffic. We concluded that
knowingly engaged
conduct that
created a substantial
risk of death or
bodily injury
serious
to others.
Smaage,
Finally, recently, and most in State v. Bell 482, 277 Mont. upheld 923 P.2d we the defendant’s conviction of criminal endan- germent pickup where he entered his and then accelerated sped away deputy while a sheriff had one hand on Bell’s arm and the other open on the truck’s door and where the defendant then drove at speeds per through of between 50 and 80 miles hour Hardin streets with the pursuit. authorities itself, language legislative
In Bell we cited the of the statute its history Smaage decisions in and Brown in concluding and our that knowing creating the defendant’s a substantial risk of death bodily injury or to another —rather than the serious result of that Referring what violated the spiking” conduct —was law. to “tree 45-5-207, MCA, language likening that driving miles city street, hour down a we stated: per trees,
In a
it
prosecution
spiking
is sufficient
that
the State
was
for the
prove
spike
“placed”
purpose
damaging
necessary
prove
saw. It is not
the State
the tree was
that an
actually
endangered
sawed or
identifiable
injured by
spike. Additionally,
the criminal
not require proof
injure
statute does
that the defendant
intended to
Rather,
it
requires
prove
another.
the State
that the defendant
“knowingly” engaged in conduct and that
the conduct
created
bodily injury
[Em-
risk
death or serious
to another.
added.]
phasis
Bell,
We
it
history
endangerment, noting
legislature’s
that was the
‘plug
intent “to
a hole in the criminal
address
law’ and
conduct such
into
placing poison
aspirin
Bell,
in a store.”
Although may injure anyone, Bell have had no intent at city up mph. drove down a street to 80 The fortuitous actually anyone that he did not harm or have circumstance city driving near misses is irrelevant. His down a street at excessive unnamed, bodily injury created a of death or speed risk people. unidentified *15 car speeds that where a drives a at to 80 up mph
[W]e hold streets, occupied city signs, through ignoring middle traffic morning, creates a substantial risk death or of serious bodily injury another, thus committing the offense of [Emphasis added.] Bell, at 923 P.2d 528. majority endangerment
While the reads the criminal statute as conduct, decisions, result over our emphasizing prior case, support precisely opposite conclusion. In each we case have focused on conduct which creates a substantial risk as which is a proscribed by wholly statute. The result of that conduct was irrele- prior vant in our decisions. It was that no particular irrelevant victim was at being put issue; identified risk the conduct at it was actually no one injured irrelevant at conduct issue. Rather, entirely we focused on the risk-creating nature of each defendant’s conduct. tree,
Whether the conduct a spiking poisoning at issue is a bottle aspirin, firing gun general a in the direction of vehicles, houses and driving excessively at an high speed through rate of occupied streets, or driving grossly intoxicated, while uniformly we have and consis- tently perpetrator’s focused on the risk-creating only conduct and not on whether he was aware particular that his conduct would cause result.
Contrary majority’s suggestion, does not simply “driving arise situations where one is a car” or “shooting hunting Rather, it rifle.” arises where the at conduct issue driving car, drunk, involves oncoming blind into traffic or driving a car high speed through occupied city police at a streets with the hot pursuit shooting hunting or rifle in the direction of homes and defendant aware is engaging vehicles. If the that he in that sort of risk-creating acting then he and whether he is also aware the result or potential result of conduct is irrelevant. my train, or, drunk, When I rifle while moving fire into dead I drive my traffic, time oncoming being my car into all the aware of activities, I doing My protesta- then have acted knowingly. those wasn’t anyone tions that I aware would be hurt killed is meaningless. is, believe, analysis forth I correct
Having set what law, applicable I next Justice Leaphart’s special address concurrence. First, Judge instructing the jury the author criticizes the District “knowingly.” point fact, judge
utilizing various definitions jury in accordance with the statute the mental defining instructed the by Lambert; state, only objected of which was portion one *16 defendant, himself, agreed of the “smorgasbord.” with two-thirds Leaphart majority
Next Justice tries to make sense out of the by involving issuing an a bad He holding using example check. then to claim that the dissent contends that the mental state goes on a and issuing endangerment for bad check for are element criminal concurring The is both The wrong Justice counts. dissent similar. Moreover, not and does not make that contention. the dissent did Leaphart that Justice has articulated the correct strongly disagrees issuing example. a bad check in mental state element issuing delivering check-i.e;, aware that he is or a person simply A (subsection (1) “aware of his conduct” of the court’s person a who is instruction) has not the mental state for commission the required focusing on the actual of the lan- Again, ordering criminal offense. statute, the must issue or deliver the check guage the by “knowing paid depository.” it will not the In other words that be or only (issuing delivering must not be aware of his conduct check), also be that under circumstances his but he must aware i.e., specific will conduct constitutes crime or cause result — (subsections (2) paid by depository be the check will not instruction). of the court’s endangerment
Unlike the offense of criminal wherein check, in the a bad issuing modifies the term offense special concurrence, “knowing” Contrary modifies result. by is that the check was proscribed the result the statute not issued (that conduct) (that anyone or is simply is defrauded or delivered offense). prohibited issuing ofthe The result of is not even an element not paid the check that the check will be delivering knowing a check that will be the If one issues or delivers depository. result, then the offense committed. Smaage, goes then on to state special
The concurrence aware that there was a that the defendant “was prove had to State case], under facts ofthe created driving, [the that his high probability bodily result, is, of death or serious a substantial risk specific opinion. Smaage, we Leaphart misquotes our injury.” Justice offense as follows: state element referred to the mental state endangerment are mental The of criminal elements creates a in conduct that “knowingly’ engaging act of bodily injury to another. A of death or serious substantial risk commits the offense of when he is high aware that there is a probability may that his conduct cause bodily a substantial risk of death or injury serious to another. State Crisp (1991), 199, 203, v. Mont. 814 P.2d [Emphasis 983. added.] P.2d at
Smaage, 915 195. We then went on to describe the trial court’s quoting approval Smaage’s prior comments from negligent sentencing homicide regarding his extensive history DUI, involving and stated:
The
comments
outline
above
District Court
the evidence
in the record
supporting
finding that
acted
Smaage
“knowingly.”
presence
people
of other
on the streets down which Smaage
weaved the Buick —a potential
lethal missile in the hands of a
driver with a .250 blood alcohol
supports a finding that
content —
Smaage engaged in conduct creating a substantial risk of death or
bodily injury
to another.
Smaage,
At no did Smaage we hold or even imply that the defendant *17 specific had to be aware of a result of his conduct to be convicted of endangerment. criminal To the contrary, the language quoted above states that Smaage properly was convicted because he engaged in risk-creating conduct. Leaphart
While Justice criticizes the dissent for “see[ing] the risk factor as being part parcel of conduct, the rather than a ‘result’ conduct,” of the that is precisely how the Legislature has chosen to define the offense of endangerment that creates —“conduct a substantial risk of death bodily injury or serious to another....” The result proscribed; rather, of conduct is not specific sort of conduct itself prohibited. Legislature is If the prohibit wanted to the result of e.g., engaging in knowing that it creates a conduct — risk, etc., substantial Legislature could have and would have —the used language different than it did.
Finally, Leaphart Justice uses the example of the three shooters. Jones fires in the direction where there is nothing open but an field. He is that engaging aware he is in conduct causing that is not bodily risk of death or injury serious to another. Obvi- ously, criminally anyone. Jones is not endangering
Smith fires in the grove trees, wherein, direction of a of unbe- him, knownst to there is located a house. Justice Leaphart concludes (1) that under instruction, subsection of the court’s Smith could be charged endangerment with criminal since he was aware of his suggest necessarily I that such a conclusion depends
conduct. on facts out If trees is example. grove which are not set in his of located Wilderness, jury in might the Bob Marshall well conclude that risk-creating I.e., conduct was not at all. in the words Smith’s of in the statute, shooting grove into of trees Bob was not conduct that bodily a substantial risk of death injury. “create[d] ...” Accordingly, being engaging aware that one was in that conduct criminally chargeable the conduct would not be because was not proscribed by hand, grove the statute. On the other if the of trees was adjacent field, development jury located in a residential to the then a that, circumstances, those might shooting well conclude under into Being that one was risk-creating engag- trees was conduct. aware ing chargeable. that conduct would be plain Obviously fires toward a cluster of houses in view.
Johnson risk-creating. He can be charged Johnson is aware his conduct with and convicted endangerment the focus of criminal is on conduct —was
Again prove it or not? The State must that the conduct was risk-creating a substantial risk-creating i.e., that creates risk — bodily was death or serious to another —and the defendant aware chosen language that conduct. Under the engaging Legislature, prove the State does not have that the defendant was any specific aware of result. proof knowledge Leaphart’s suggestion
Justice based negligent render court’s instruction would en- subsection MCA) (§ 45-5-208, and criminal indistin- dangerment Moreover, this suggestion an issue not raised in this case. guishable is event, the mental likely given incorrect state specifically defined in terms of result instead of “negligently” is 45-2-101(42), MCA. conduct. Section
Furthermore, concurrence, the issue this contrary special giving jury option picking case a claim of error in was not definitions of the mental state element crime choosing three gave The issue involves an instruction that charged. *18 element, state two of which the statutory definitions the mental objectionable one of to agreed and the court to and which was parties “smorgasbord;” he problem had no with the The defendant Lambert. one entrees. did not like of the merely concurrence, Trieweiler’s suf-
Finally, regard special in to Justice analysis nor with the say agree that I with neither his fice it to examples— has use as factual he chosen to scenarios outcome remotely of which approximate presented none even facts jury interesting, however, in this case. I find it he concedes, must, obviously that while “in this there was he case evidence that Lambert was aware his conduct would create a substantial risk harm,” jury in the next sentence he concludes that might not reached have this same “obvious” conclusion because an instruction allowed them to Lambert’s they which determine mental state if were very was aware he engaging convinced was in this instructive, risk-creating indeed, conduct. It is learn that while obvious, are judges capable discerning the men and women who juries, apparently, serve on our trial are not. Our agonizing collective aside, mental I suspect over definition of states that the next jury position will be no better to divine what was on in going Lambert’s present drunken mind with the new than instruction was given by Fortunately, panel with instruction the court. the next likely “obvious”, will still be able to discern the regardless. failing analyze mental properly state element of
endangerment within the context of the actual language of the statute law, prior our the majority wrong and case has come to the conclusion. trial The court’s instruction that Lambert acted if he was “aware of his conduct” was correct. I affirm,
I would and dissent our do from failure to so. join CHIEF JUSTICE TURNAGE and JUSTICE ERDMANN foregoing dissent. TURNAGE, dissenting: CHIEF JUSTICE I dissent concur with the of Justice James C. and emphasize Nelson absolutely that Justice Nelson’s dissent as a correct matter of law keeping precedents. and in with this Court’s August 20,1994, approximately On at 10:00 Christine a.m. Peterson Jeep Darby, Montana, Missoula, her from drove Cherokee her home Mary her Riding school-aged Montana. were her three children and Nelson, a grader daughter. seventh and friend of her purpose of school trip shopping to Missoula was the children. 5:30 approximately p.m., passen-
At Christine Peterson her trip were from Missoula the return to their home gers traveling Darby. children, traveling For Peterson south on Christine and at near Highway approximately p.m. point 93 at 6:00 Stevens- Montana, ville, all hell broke loose. safely driving in her southbound lane
Christine Peterson limit B. speed 93 at a well when David Highway speed within *19 Lambert, cause, in appellant defendant and this drove his Monte saloon, the Owen parking Carlo vehicle from area the Fort Inn onto 93, crossing occupied by into the southbound lane Highway the smashing and her Peterson vehicle head-on into vehicle. Lambert’s bodily a substantial risk of death and caused serious actions caused her injury passengers. to Christine and Highway Patrol Officer Thomas Hamilton At the scene described when he drove head-on into Lambert’s condition his vehicle the this Peterson vehicle in manner: always to faced. pie He was —I have referred it as He didn’t seem
... He physical control of his muscles and whatnot. to be speech leaning. His was slurred. He was He wasn’t slouched. appearance standing physical Just his struck me as someone erect. of alcohol. under influence sobriety had an odor of alcohol and he failed field
Lambert’s Hamilton, office at he at the scene. When taken sheriff’s tests sobriety give and to cooperate to other tests also refused refused body. scene, At test alcohol content in his Officer a breath for whiskey of Black Velvet found in Lambert’s vehicle bottle Hamilton empty full and both and full bottles beer. three-fourths approximately felony endangerment, jury Lambert’s trial for criminal After guilty charge. him of that found history for motor vehi- driving Lambert’s criminal sentencing,
At eye popper. Court. This record is an was reviewed District cles 11, 28, 1994, 1983, to Lambert’s period June November For that, sentencing at time of in this history record discloses criminal thirty-eight driving times of serious offenses case, he had been convicted driving pending. nine of serious offenses were still charges and that driving convictions were for under influence Nine charges pending Three of at driving. or still of alcohol drunken driving the influence of sentencing were under alcohol the time for alleged charge pending The such still driving. drunken last or for released on bail committed while Lambert was have been charge pending driving under felony August 20, 1994. charge influence of alcohol on two occa- suspended has also been Lambert’s driver’s license body. in his a chemical test alcohol when he refused take sions 1994, had been 23, 1987, August 20, Lambert May Between motor while his license was driving vehicle seven times convicted case, and, sentencing this time or at the suspended revoked while his license was a motor vehicle guilty driving pled had August charges revoked on 1994. Three other suspended or re- driving suspended Lambert of while his license was against pending. are still apparently voked
Mary Nelson, grader crash, a seventh and one of the victims in the stated, gets “I feel that when David out of has said it all when she someone, jail, not a matter of if he kills hut when.” it’s felony majority reversing of this Court is endan- essentially holding conviction of Lambert because of their germent giving Court misled the court’s instruction the District law, majority’s opinion 12. The is not correct as a matter of no. *20 clearly Further, majority Justice dissent. pointed out Nelson’s correct as a matter of common sense. is not opinion 45-5-207, MCA, the under Section statute which Lambert was felony convicted charged properly endangerment, and case, provides: to this pertinent insofar as (1)A knowingly in conduct that engages who creates a bodily injury risk of death or serious to another com- mits the offense of criminal jury given no. 12 stated:
Instruction A acts knowingly:
(1) he is aware of his conduct or when (2) when is aware under the circumstances that his conduct con- n stitutes a crime or high probability he is aware there exists the when specific conduct will cause a result. clear, and the instruction is clear. The simply
The statute is could acted under not have misled. Lambert been probability in instruction no. 12. Lambert in all has three definitions anyone as a drunken driver than experience had more doing Montana —he knew what he was and was aware of his conduct influence 20, 1994, under alcohol. August when he drove law, and Bar are well aware that the rule of a basis of The Bench society, upon public confidence in our courts stability dependent in our system. arabesque, pirouette, struggle and justice legal its will, believe, in this case I conviction, majority reverse Lambert’s justice system undermine confidence in the court Montana. public why angry. leave no doubt MADD is Decisions such as this the District Court. I would affirm concurs in the dissent of CHIEF JUSTICE
JUSTICE ERDMANN TURNAGE.