647 P.2d 847 | Mont. | 1982
STATE of Montana, Plaintiff and Respondent,
v.
Carl PIERCE, Defendant and Appellant.
Supreme Court of Montana.
*848 A. Michael Salvagni, Bozeman, for defendant and appellant.
Mike Greely, Atty. Gen., Helena, Donald E. White, County Atty., Bozeman, for plaintiff and respondent.
MORRISON, Justice.
On May 13, 1981, a jury for the Eighteenth Judicial District Court, Gallatin County, found Carl Pierce guilty of one count of aggravated assault, a felony, and one count of misdemeanor assault. Pierce had previously pled guilty to another misdemeanor, failure to stop at the scene of an accident. The court issued a sentence and judgment June 8, 1981, sentencing defendant to: twenty years on one count of aggravated assault; one year to run concurrently, on failure to stop; and six months, to run consecutively, for misdemeanor assault. Defendant appeals. We affirm.
At approximately 2:00 P.M., March 7, 1981, defendant Carl Pierce left Dillon, Montana, and drove toward Gallatin Gateway to visit his wife. His nephew and a hitchhiker accompanied defendant as far as Bozeman. Defendant then proceeded alone, west on U.S. Highway 191, until becoming involved in a serious accident around 6:15 P.M. He abandoned his car and fled the scene of the accident.
Defendant was later apprehended in Country Lanes Bowling Alley and arrested for leaving the scene of an accident. He was taken to the Bozeman police station, where he agreed to submit to a breathalyzer test. The results of the test indicated that defendant's blood alcohol level was .16 percent. In Montana, an individual whose blood alcohol level is greater than .10 percent is presumed to be under the influence of alcohol in a criminal prosecution for driving under the influence of alcohol. See section 61-8-401(3)(c), MCA.
Defendant pled guilty March 9, 1981, in Gallatin County Justice Court, to driving under the influence of alcohol. On March 11, 1981, defendant participated in a taped interview with an investigator from the Gallatin County Attorney's Office, during which defendant discussed his activities the *849 day of the accident. An information was then filed March 13, 1981, charging defendant with the following:
COUNT I: AGGRAVATED ASSAULT, a felony, for knowingly causing serious bodily injury to Jeri Lyn Francisco, in violation of section 45-5-202(1)(a), MCA;
COUNT II: AGGRAVATED ASSAULT, a felony, for knowingly causing bodily injuries to the other passengers with a weapon, in violation of section 45-5-202(1)(b), MCA; and
COUNT III: FAILURE TO STOP AT THE SCENE OF AN ACCIDENT, a misdemeanor, in violation of section 61-7-103, MCA.
Defendant pled guilty to Count III and proceeded to trial on Counts I and II. At trial, several individuals testified that as they were travelling west on U.S. Highway 191 around 6:00 P.M., March 7, 1981, an older green car passed them on the right shoulder of the road, travelling at a high rate of speed. The car defendant was driving, and which was abandoned at the scene of the accident, was a green 1968 Mercury.
According to witnesses, the driver of the older green car attempted to similarly pass a 1979 Toyota pickup truck. The pickup was occupied by Shirley Francisco and four children. Mrs. Francisco and two of the children sitting in the back of the enclosed pickup testified that they saw the green car rapidly approach the rear of their pickup while on the right shoulder of the road and then felt the impact of the crash. All five passengers were thrown from the vehicle. Mrs. Francisco suffered a fractured right shoulder and a compound fracture of her left ankle. Kevin Schmidt, the other passenger in the cab of the pickup, received lacerations on his back and was dazed. The three girls sitting in the bed of the enclosed pickup were also injured. Rochelle Francisco was hospitalized for chest pains and dizziness, while Brenda Schmidt was hospitalized for back and neck pain.
Jeri Lyn Francisco suffered the most serious injuries. She was flown to Billings for emergency surgery to remove broken skull fragments from the back of her head and to stop the bleeding of lacerated brain tissue. Attending physicians testified that prior to completion of the surgery on Jeri Lyn, they had believed she was in serious danger of losing her life.
The investigating police officers testified that by conducting a vehicle license check, they learned that the owner of the Mercury automobile was Virginia Pierce. When Mrs. Pierce was contacted, she told the police that her husband, Carl Pierce, had been in possession of the car for approximately one month. Mrs. Pierce later contacted Bozeman police and told them her husband had called and requested she pick him up at the Country Lanes Bowling Alley. Two officers proceeded to the bowling alley, found defendant sipping his first drink at the bar, questioned him and arrested him for failure to stop at the scene of an accident.
The officers testified that Mr. Pierce initially denied being involved in the accident. Mr. Pierce told the officers that he had left his car in Sheridan, Montana, and had hitchhiked to Bozeman. He later admitted to being the driver of the 1968 Mercury at the time of the accident.
During the taped interview, Pierce admitted that he was intoxicated at the time of the accident and stated that he probably should not have been driving. He had consumed twelve beers between noon and the time of the accident.
He also stated that he did not recall passing any vehicle on the right shoulder of U.S. Highway 191. Defendant's version of the accident was that the brake lights of the Toyota came on as he was properly passing it, causing him to apply the brakes of his car and slide into the Toyota. He then fled the scene of the accident out of fear.
At the close of the trial, the jury found defendant guilty of aggravated assault for knowingly causing serious bodily injuries to Jeri Lyn Francisco and guilty of misdemeanor assault for negligently causing bodily injuries with a weapon to the others in the car. In his appeal of those convictions, *850 defendant presents three issues to this Court:
(1) Whether defendant's constitutional right against being placed in double jeopardy was violated when, as a result of the same transaction, defendant pled guilty in justice court to driving under the influence of alcohol and was later charged in District Court with aggravated assault?
(2) Whether there was sufficient evidence to prove defendant knowingly caused serious bodily injury to Jeri Lyn Francisco, so as to constitute an aggravated assault?
(3) Whether the convictions should be overturned as requiring two mutually exclusive mental states to exist simultaneously?
Both before and during trial, defendant made motions to dismiss the aggravated assault charges against him. He alleged that a charge of aggravated assault would violate his constitutional right against being placed in double jeopardy as he had already pled guilty to another charge arising from the same accident, driving under the influence of alcohol. We disagree with defendant's contention.
The applicable codification of defendant's constitutional right against being placed in double jeopardy is found in section 46-11-504(1):
"XX-XX-XXX. Former prosecution in another jurisdiction when a bar. When conduct constitutes an offense within the concurrent jurisdiction of this state and of the United States or another state or of two courts of separate, overlapping, or concurrent jurisdiction in this state, a prosecution in any such other jurisdiction is a bar to a subsequent prosecution in this state under the following circumstances:
"(1) The first prosecution resulted in an acquittal or in a conviction as defined in XX-XX-XXX and the subsequent prosecution is based on an offense arising out of the same transaction."
Section 46-11-503(3)(c) defines conviction as including "a plea of guilty accepted by the court..." Therefore, section 46-11-504 may apply to defendant as his guilty plea is considered a conviction for purposes of that statute.
The prohibition against double jeopardy was construed by the United States Supreme Court in Blockburger v. U.S. (1932), 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306: "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." 384 U.S. at 304, 52 S.Ct. at 182.
Driving under the influence of alcohol, § 61-8-401(1)(a), MCA, requires proof that the individual was under the influence of alcohol and proof that he was driving or in control of a vehicle while under the influence. Aggravated Assault, § 45-5-202(1)(a), MCA, requires proof defendant knowingly caused serious bodily injury. Assault, § 45-5-201(1)(b), MCA, requires proof defendant negligently induced injury with a weapon. Driving under the influence does not require proof of bodily injury. Assault does not require proof of intoxication. Each offense requires proof which the other does not. We therefore find no violation of defendant's constitutional right against being placed in double jeopardy.
As his second contention, defendant asserts that there was insufficient evidence presented at trial on which a jury could base a determination that defendant knowingly caused serious bodily injury to Jeri Lyn Francisco. "Knowingly" is defined in part as follows:
"... 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..." Section 45-2-101(33), MCA.
A jury may use circumstantial evidence to determine the existence of a particular mental state. State v. Pascgo (1977), 173 Mont. 121, 126, 566 P.2d 802, 805. That is, they may infer the mental state *851 from what the defendant does and says and from all the facts and circumstances involved. State v. Jackson (1979), 180 Mont. 195, 589 P.2d 1009. Flight by the defendant may be considered by the jury as a circumstance tending to prove consciousness of guilt. State v. Gone (1978), 179 Mont. 271, 277, 587 P.2d 1291, 1295.
During his interview with the investigator from the County Attorney's Office, defendant admitted that he had consumed twelve beers, that he was intoxicated, and that he probably should not have been driving when the accident occurred. He also admitted fleeing the scene of the accident because of fear. Witnesses described defendant's high rate of speed and illegal passing maneuvers. These facts support the jury's determination that defendant knew there was a high probability that driving while under the influence of alcohol would cause serious bodily injury to another.
Defendant's third contention is that the two verdicts are inconsistent in that they require mutually exclusive mental states to exist simultaneously. Although they arose from the same accident, one charge alleged defendant knowingly caused serious bodily injury to another while the second alleged defendant knowingly caused bodily injury to others with a weapon. The jury found defendant knowingly caused serious bodily injury to one victim, but as to the less seriously injured victims, the jury found defendant acted negligently and therefore convicted defendant of misdemeanor assault under § 45-5-201(1)(b), MCA. However, we do not agree with defendant that the two mental states are mutually exclusive.
The aggravated assault conviction requires a mental state of "knowingly." The assault conviction requires a mental state of "negligently." They are not mutually exclusive mental states.
"Negligently" is defined in relevant part as follows:
"... a person acts negligently with respect to a result or to a circumstance described by a statute defining an offense when he consciously disregards a risk that the result will occur or that the circumstance exists or when he disregards a risk of which he should be aware that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. `Gross deviation' means a deviation that is considerably greater than lack of ordinary care ..." Section 45-2-101(37), MCA. (Emphasis supplied.)
The jury was so instructed.
The jury, in finding the knowledge required for aggravated assault, found that defendant was aware of the high probability that serious bodily injury would occur if he drove while under the influence of alcohol. Thus, defendant violated § 45-5-202(1)(a), MCA. It was not inconsistent for the jury to also find that defendant disregarded the risk that bodily injury would occur and thus found defendant guilty of criminal negligence, in violation of § 45-5-201(1)(b), MCA. Aggravated assault requires a knowledge which is aware and therefore understands that a certain result is likely to follow. Misdemeanor assault, in its negligent form, requires only an indifference to result.
The mental state required to satisfy "knowledge" is more culpable than that for "criminal negligence" because the actor must know it probable that a result will follow. "Criminal negligence" can be shown if risk to others is disregarded. However, proof of knowledge necessarily proves the elements of criminal negligence. You cannot engage in conduct knowing it likely will harm others without, at the same time, disregarding the risk to those others. The mental states are therefore not mutually exclusive.
The judgment of the District Court is affirmed in its entirety.
HASWELL, C.J., and HARRISON, SHEEHY and WEBER, JJ., concur.
DALY and SHEA, JJ., dissent and their written dissent will be filed later.
