*1
STATE OF MONTANA,
Respondent,
Plaintiff and
SMITH,
SCOTT S.
Appellant.
Defendant
No. 02-459.
Submitted on Briefs June
2003.
July 26,
Decided
2004.
For Honorable Mike Schmidt, Attorney General, Helena; Dennis E. Carol Assistant Hanes, Paxinos, Attorney; Deputy County Melodee County Attorney, Billings. delivered the Court. Opinion
JUSTICE RICE (Smith) by the S. from the order entered appeals Scott Court, County, denying his Thirteenth Judicial District Yellowstone motion to dismiss. We reverse. presented appeal: on following The issue denying motion to dismiss Did the District Court err in (a) Information grounds that: I of the amended on
Count second charged him of assault prosecutor erroneously with offense 45-5-213, MCA, rather than pursuant privacy communications through intimidation over the telephone, pursuant (b) 45-8-213, MCA; the affidavit supporting the charge of assault with a weapon pursuant to § failed to state the required elements to establish the offense of assault with a weapon?
FACTUAL AND PROCEDURAL BACKGROUND July On the Yellowstone County Attorney filed an Information charging Smith with two counts felony assault with a weapon, pursuant to § MCA. Count I charged Smith with causing (Tami), Tami Smith wife, believe Smith would inflict bodily injury on Mac Hernandez (Hernandez), boyfriend. Tami’s Count II charged Smith causing Hernandez to believe Smith would inflict injury on Hernandez. affidavit in support of the alleged that on or July 9,2001, about Smith and Tami were estranged wife, husband and and that Tami had begun a relationship Hernandez, with Mac security officer for Saint Hospital. Vincent’s During telephone conversation, Smith told Tami he going to kill Hernandez with a *3 gun. He then made a metallic clicking noise over the telephone. Smith asked, you “Do know what this is?” He told her it was the sound of a gun cocking and that he going go was to kill Hernandez. Smith then hung up. Tami immediately notified Hernandez Shortly to warn him. thereafter, Smith called Hernandez twice on phone Hernandez’s cell while Hernandez call, was at work. In the first Smith said he was on his way to kill call, Hernandez. In the second Smith told Hernandez he was in the hospital where Hernandez worked looking for him to kill him. When Hernandez asked identify location, Smith to he “No, responded, I think we will make this interesting.” put Hernandez on a bulletproof immediately vest and contacted the police who later arrested Smith in front of his At arrest, home. the time of police recovered three Later, firearms from living Smith’s room. one of gave police friends upon two bullets one of which Smith had allegedly written the name upon “Mac” and the other a “?”. The support affidavit in Information stated that Smith used cocking sound, gun, Tami, or with but not with Hernandez, and further indicated that “Mac Hernandez believed that the defendant way hospital was on his to to shoot him that evening,” and that “Tami Smith believed that the defendant would carry out go his threat to to the hospital and shoot Mr. Hernandez.” 25, 2001, a motion to dismiss Smith filed September On (1) the which asserted: support memorandum Information and with allegation of assault prima to set forth a facie failed (2) MCA; assault with since in violation weapon § telephone, proper over the could not be committed weapon violation of charged been with Smith should have violation which the telephone, over through intimidation privacy in communications 45-8-213(l)(a), MCA; victim was alleged violation “reasonably weapon to “see” required being perpetrator utilized believe that there is ” which, bodily injury,’ apprehension ‘reasonable cause asserts, Hernandez, did not do. Smith intended of an assault with a argued the State victim response, for sufficient evidence to exist actually need not “see” the bodily injury with a apprehension 24, 2001, On the State filed a second amended affidavit October facts, precisely but delineated the which set forth the same more to file requested victims involved. The State leave a second alleged also On after oral day, hearing argument, amended Information. the same following denied to dismiss on the District Court Smith’s motion grounds: knowingly we here is caused reasonable purposely
What have to do apprehension. apprehension has means in bodily injury, in another. I think that someone defendant, a weapon.... other and it has to include use of than the designed punish, primarily [T]his statute is to-it’s criminalize, weapon, the use threatened use of a and that’s is, line he and he what occurred here. Bottom threatened kill think I the main intent gun. threatened to kill with a And that’s of this statute. 1, 2001, the filed a second amended On November State
Information, to both counts of assault with pled guilty and Smith not subject objections made. previously reservation ofhis plea agreement into April On entered I the amended Information plead guilty him to to Count of required Tami alleged caused which that Smith *4 exchange for Smith kill Hernandez with a that would I, agreed: the State dismiss plea guilty Smith’s of Count alleged the Information which prejudice Count II of second amended in that Smith apprehension Hernandez that Smith caused reasonable (2) to a deferred weapon; recommend would kill Hernandez years, providing sentence of two specified Smith follow probation right appeal conditions. Smith reserved the to this Court on issues related to appropriateness brought the the in charges the second amended Information. 11, 2002, On June the District Court entered an order deferring
¶11 imposition of sentence period years placed for a two on Smith probation. appeals.
STANDARD OF REVIEW A district court’s denial of motion to criminal charges dismiss novo, a matter of law which determining only we review de whether correctly interpreted the court the law. State ex rel. Booth v. Montana Dist., 344, 10, Twenty-First 10, 371, Judicial MT Mont. ¶ ¶ 325, (1997), 10 (citing v. Bowles ¶ State 53). 947 P.2d
DISCUSSION Did District err in denying Court motion grounds dismiss on prosecutor Information charged erroneously him with the awith offense of weapon rather than the privacy in communications offense through telephone? intimidation over the alleged Smith recounts the in support facts the affidavit theof second amended Information:
[T]he on talking telephone ex-wife was with the defendant angry going when he became and stated he was to kill the boyfriend.... [T]he made clicking defendant a metallic sound over asked, the telephone you and then “Do know what this He is?” to tell gun cocking continued her it was sound of a and that he going to kill hung up. [sic] Mr. Hernandez. The then that, facts, upon Smith asserts based these District Court denying erred in his motion to on grounds dismiss prosecutor him erroneously charged with what Smith terms “generalized” weapon, of assault with a pursuant MCA, than the violation “specific” privacy rather communications 45-8-213(l)(a), through telephone, pursuant intimidation over the to § argues that MCA. Smith the essence the difference between these is that privacy statutes communications statute is “particularized,” “specific,” “general” version of the assault with weapon statute. Section assault with a states: *5 (1) the weapon. person with a A commits Assault
45-5-213. or purposely if person the with a offense knowingly causes:
(a) or weapon; injury another (b) bodily injury in another reasonably to be a appears or use of (2) be shall [A] of assault with person ... convicted or years exceed 20 prison the state for term not to imprisoned in $50,000, than or both. be fined not more communications, 45-8-213, MCA, in pertinent states privacy in Section part: Privacy person ... [A] in communications.
45-8-213. if the violating privacy in communications commits knowingly purposely: or person
(a) harass, intimidate, threaten, terrify, purpose with the offend, by electronic annoy, person or communicates with a obscene, lewd, profane language, and uses or communication act, injury to inflict or a lewd or lascivious or threatens suggests person. use of person property to the or physical harm or obscene, lewd, making or of a threat profane language intent suggestions prima lewd or lascivious facie evidence of an intimidate, harass, terrify, threaten, annoy, or offend. (3) (a) A in violating privacy convicted of the offense of imprisoned be not to $500 communications shall fined exceed months, county jail in the for a term not to exceed 6 or both. Feight, Smith cites 2001 MT State support “specific of his contention that controls over general.” relationship In where a existed Feight, “general-specific” statutes, controlled over the among specific several statutes of an general. Feight, Court affirmed a district court’s dismissal this justice from court of a denial of the defendant’s motion appeal Feight, argued The defendant that under guilty plea. withdraw a 24. ¶ statute, 46-20-104, MCA, he should “generalized” scope-of-appeal order, judgment except appeal any entitled to final have been case, however, that provided by law. We concluded otherwise 46-17-203, 3-5-303, 46-20-104, 46- MCA, inapposite because §§ sections which 17-311, “specific” code were district parameters jurisdiction of a provided for and defined in the first instance. appeals justice entertain from court court to statutory rule of 20. This Court stated well-settled Feight, ¶ construction:
[I]t is a well-settled rule of statutory specific construction that the prevails general. particular statutory over the A intent controls general over a which one is inconsistent with it. Section Further, MCA. when two deal statutes one in subject, general comprehensive terms, and the other in minute and terms, more definite the more definite statute will to the prevail extent of any opposition between them.
Feight, Thus, the specific 21. than general ¶ rather criminal statutes were applicable Feight. Smith asserts that the same “general-specific” relationship at
issue among Feight the statutes under in review exists the between However, two statutes under review the here. this case statutes in distinctly conduct, punish different criminal requiring one use of a weapon, nothing and one not. We conclude in plain language that the of these two statutes indicates either to that was meant be a “generalized” “particularized” Thus, version other. argument that the prosecutor obligated to with charge him a violation privacy in a “specific” communications as rather than a violation of assault with a as weapon “general” the offense is without merit. Further, county a attorney determining has broad discretion in
when prosecute Montana, to case and charged. a what crime will be In “[i]t only upon attorney is not incumbent the county to determine when case, prosecute or when not to a but the support when facts of a case crime, possible charge charged a of more than one the crime to is a be prosecutorial matter of ex discretion.” State rel. Fletcher District v. (1993), 410, 415, 992, Court 260 Mont. (citing 859 P.2d 995 State v. 408). (1978), 225, 405, 230, Booke Mont. 178 583 P.2d We therefore broad, conclude that the prosecutor discretionary acted within his powers charging Smith with assault a weapon. with Did denying the District Court err in Smith’s motion to dismiss the grounds on that the affidavit supporting charge weapon the assault a to with state failed required the elements establish the with a assault offense of weapon? Smith denying further asserts that the District Court erred in grounds Smith’s motion to dismiss the Information on that the the with a supporting charge weapon pursuant affidavit of assault 45-5-213, MCA, to state the the required failed elements to establish § weapon. argues offense of assault a with Smith assault
213 (2) victim to “see” the requires statute weapon utilized weapon being there is reasonably believe requisite “reasonable in order cause perpetrator telephone since threat injury.” argues of serious neither, weapon” language. “use of it did not meet the statute’s did First, that a victim must “see” we address Smith’s contention Court not weapon. as with a This has an element assault any it was enacted interpreting decided cases since § 1999, revision to the assault statutes but part general 45-5-202, (1999), nearly identical to language MCA (1997), offense,1 prior “felony assault” have MCA which we notes, correctly in the As the State 1999 revisions interpreted. (1988), did our v. 234 Mont. holdings statute not affect State Misner 33, 23, (1996), 215, 277 920 P.2d Hagberg 763 P.2d and Mont. State 86, of an wherein we concluded that it was not for victim be actually with a “see” the for there to bodily injury sufficient evidence Misner, eligibility and a technician had the defendant welfare on confrontations over defendant’s welfare claims several Misner, at P.2d at After one such occasions. 24. secretary meeting, the office observed the defendant take welfare gun in the begin yelling shaking rifle from his truck Mont, Misner, 763 P.2d at direction of the welfare office. at “Oh, screamed, secretary immediately who this 24. observed act Misner, God, P.2d at 24. The my got gun.” he’s Mont. at *7 technician, directed, were but welfare whom the defendant’s actions physically in a office and did not “see” the who was located back bodily of weapon, unequivocally apprehension testified his serious 219, 763 upheld the Misner, 234 Mont. at P.2d at 25. This Court injury. (now a felony weapon) of assault assault with defendant’s conviction for the technician to have grounds on it was not assault-felony Aggravated assault..... [1997]. 45-5-202 (2) person purposely person felony or A commits if the knowingly causes: (a) (b) weapon; bodily injury to with a or another bodily injury by apprehension of a in another use reasonable of serious weapon. (1) person weapon. a A commits the offense [1999]. Assault with 45-5-213 knowingly weapon person purposely causes: if the of assault with a (a) (b) weapon; bodily injury to another bodily injury apprehension use of a in another weapon. weapon reasonably appears to be a
personally observed the gun in order for him
experienced
to have
reasonable apprehension of
bodily
serious
injury
required by
as
Mont,
Misner,
statute.
219,
at
language
45-5-213(l)(b),
MCA,
which makes it a crime to cause
“reasonable
bodily injury
serious
another
use of
or what reasonably appears to be a weapon.” Under one
application, a crime is committed if person
uses a weapon or what
reasonably appears to
be a
to cause
bodily injury
in the victim. Under the
application,
second
crime is also
committed if a
simply causes reasonable
apprehension that the
will sustain
bodily injury
from
if
reasonably
it
appears to the victim
that a
involved,
actually
whether
seen or not.
approved
Cases which have
application
first
Roullier,
include State
37, 293
304,
1999 MT
970;
(1991),
136,
State v. Matt
249 Mont.
52;
814 P.2d
(1988),
State v. Crabb
232 Mont.
756 P.2d
holdings
1120. Our
Hagberg, however,
Misner and
generally stand for the proposition that
the statute is also satisfied under the
application,
second
specifically,
merely by the existence of circumstances which lead the victim to
reasonably apprehend that he or she
injured by
will be
See
Misner,
234 Mont. at
763 P.2d
26;
at
Hagberg,
assault, and at could sustain most (now felony between assault in Brown that distinction stated felony assault abuse was that weapon) a and domestic assault with required of a weapon: use family or injury is to a
Thus, bodily inflicted cases where member, felony and assault distinction between household weapon. use of In felony requires a domestic abuse is bodily injury in a apprehension of involving cases assault, in to member, felony comparison family or household abuse, weapon of a requires additional elements: use domestic injury of a nature. bodily apprehended is 45-5-206, 45-5-202, MCA. Sections
Brown,
light
at
of Misner
to establish the offense of assault with which clarify assault with a outset to the exact counts of Information, and which charged in the second amended Smith was 5, 2002, plea April agreement. to the pursuant count was retained as follows: Count I in the second amended Information stated Defendant, knowingly did SCOTT STEPHEN SMITH ... [T]he injury bodily apprehension cause reasonable purposely wit; Defendant told Tami Smith in another use of kill Mac Hernandez under going he was to shoot and to believe that caused her reasonable circumstances bodily injury on Mac Hernandez .... he would inflict serious Count II in the amended Information stated: second Defendant, knowingly SMITH ... did SCOTT
[T]he STEPHEN injury cause reasonable purposely another use of weapon, wit; Defendant told Mac *9 Hernandez he was going to shoot and kill Mac Hernandez under circumstances that caused him reasonable apprehension believe he would inflict bodily serious injury on him .... Thus, Count I alleged that Smith caused Tami reasonable apprehension that Smith Hernandez, would kill whereas Count II alleged that Smith caused Hernandez apprehension reasonable Smith would kill Hernandez. Pursuant plea agreement, to the Smith pled guilty alia, to Count I in exchange, inter for dismissal of Count II. Smith reserved right to appeal the appropriateness charges of the brought under Count I of the second amended Information which charged him with assault with a weapon under where, circumstances in a telephone ex-wife, call to his he threatened to shoot Mac Hernandez, boyfriend. her The question, therefore, essential did is: Count I of the Information, second amended which was retained by the plea agreement, state charge elements to Smith with the offense of assault with a weapon pursuant 45-5-213, MCA? provides statute as follows:
45-5-213. Assault with a weapon. person A commits the offense of assault if person purposely or knowingly causes:
(a) bodily injury to another with a weapon; or (b) apprehension reasonable bodily injury another by use of a or reasonably appears to be added). Section (emphasis MCA Smith argues that the word “another” means the intended and that the “reasonable (l)(b) apprehension” in subpart apprehension references the which is experienced by the intended victim the bodily injury. serious Smith argues (l)(b) phrase “in another” in subpart does not mean a party third only victim who suffers of the harm to the intended victim of bodily injury. the serious agree. We Although 45-2-101(3), MCA, we note that § defines “another” as persons offender,” “a other than the and that the District Court concluded that “another” meant “someone other than the defendant,” a fair reading phrase “in another” within the context statute, of the entire particularly phrase within the “reasonable apprehension bodily injury another,” serious means the intended victim bodily the serious injury, not a third party merely who was fearful that the intended victim would be harmed. We conclude that (l)(b) subpart expand does not the crime of assault with weapon an entire group new of third parties who were fearful about intended victim. upon an inflicting injury serious defendant (l)(b) to define a crime reasonably interpreted be cannot Subpart victims, object one who was differently postured involving only who sustained bodily injury, another harm the first victim. Therefore, of assault with to convict of the offense allege purposely that Smith the Information needed bodily injury in apprehension of serious knowingly caused reasonable Hernandez, bodily injury, use of a intended victim of or, causing reasonably appeared weapon; to be weapon, what Hernandez, apprehension in the intended victim serious Thus, injured by weapon. bodily injury, that Hernandez would be II charge alleged in Count of the second amended although statute, charge dropped was proper Information was under Only pursuant agreement. Count I of the second amended plea to the retained, apprehension in alleged which *10 bodily injury, but a Tami, who was not the intended victim of serious of to third victim who was fearful the harm the intended party Thus, I failed to by plea agreement Hernandez. Count retained the the elements for the offense of assault with a state 45-5-213, MCA. required under § denying Court erred in We therefore conclude District ¶31 motion I of to dismiss Count the Information. Reversed. WARNER, COTTER, GRAY, CHIEF JUSTICE JUSTICES LEAPHART and REGNIER concur.
JUSTICE NELSON dissents. interpretation I dissent the Courts of the term “another” from MCA, 45-5-213(l)(b), the intended victim of the serious mean § injury. bodily as, “a simply, Section defines “another”
persons Interpreting other than the offender.” the statute as statutory imposed on this majority responsibility does violates the by Court MCA: statute, simply is judge
In the the office construction declare is in terms or contained ascertain and what substance therein, to omit has to insert what has been omitted or not been inserted. directly otherwise, intrudes into contravenes doing Court duty Court authority, constitutional for this Legislatures’ enact, is to law as we find it-“not to statute construe the
interpreting 105, but expound, Marriage 43, the law.” In MT of Skillen, re ¶ 399, 105, 1, (Nelson, J., 287 Mont. 956 P.2d concurring ¶ ¶ (citing dissenting) County State ex rel. Durland v. Board Comm’rs (1937), 21, 24, 1060, 1062; 104 Mont. (1934), P.2d Clark Olson 283, 288; 31 P.2d Montana Beer Retailers’ Protective (1933), 30, 34, 25 Ass’n Bd. Equalization v. State 95 Mont. 130). language majority The inserted bemay appropriate from standpoint a policy clearly and to more term define the “another” as is, Legislature. used point language the State relied on the Legislature used by Legislature scope and if the wants limit the statute, it is free to do so. By interpreting 45-5-213(l)(b), MCA, only to refer intended injury, majority arbitrarily victim inserting language into Legislature the statute that the saw fit to omit. Thus, I respectfully dissent.