State v. Mummey

871 P.2d 868, 264 Mont. 272, 51 State Rptr. 198, 1994 Mont. LEXIS 54

• Court: Montana Supreme Court
• Decided: March 17, 1994
• Docket: 93-165
• Status: Published

Opinions

DISTRICT JUDGE McCARTER

delivered the Opinion of the Court.

Mike Mummey (Defendant) appeals from Blaine County District Court orders denying his motions for directed verdict, and for judgment notwithstanding the verdict after his conviction for felony assault. We affirm.

On December 9, 1991, Raymond Miller, Merle Darling and Wade Hillier drove to Montana from their home in Canada to visit friends and purchase some equipment for a hot water tank. When they arrived in Harlem, Montana, they stopped at the Nite Train Bar to visit with Miller’s friends and have some drinks.

A few blocks from the Nite Train Bar was Kennedy’s Bar, where Defendant was drinking with Joe Mohar and Louis “Puddy” Mount. Defendant and Mohar became disruptive and after being rebuked by the bartender, they left Kennedy’s and proceeded to the Nite Train Bar.

At the Nite Train Bar, Defendant noticed the three Canadian men and made a derogatory comment to the bartender, asking if the men were “some of your pig farmer friends from up north.” Mohar saw one of the Canadians, Wade Hillier, talking to three local women. Mohar went over to Hillier, shoved him away and, using profane language, told him to get out of the way and leave his women alone. Raymond Miller went over to Mohar and asked what the problem was. Mohar replied with profanity, telling Miller that he and his Canadian friends should get out of the bar and out of the country.

The owner of the bar intervened and told Mohar to leave. Mohar yelled to Defendant that he did not like Canadians, and yelled to Miller that he would take him outside and fight him. Mohar then left the bar. Defendant purchased some beer and a bottle of liquor and also left the bar.

Miller remained in the bar for about five minutes, then left. Merle Darling, who had not witnessed the shoving incident and the exchange of words between Mohar and Miller, assumed that Miller was going to Kennedy’s, and decided to go see what was happening there. When he opened the front door of the Nite Train Bar to leave, Darling saw Miller lying on the street on his back, being kicked by Defendant and Mohar. Darling charged into Defendant and Mohar in an attempt to get them off Miller. Darling was knocked to the ground by a blow and then was kicked four or five times in the head. One kick struck him in the mouth. When the assailants left, Darling got up, checked Miller, and returned to the bar to get help.

Darling was cut and bruised, and his false teeth were shattered. Miller suffered severe facial injuries, including injuries to his eyes. As a result of the severe beating, Miller suffered a memory lapse and could not recall the events that led to his injuries. Darling testified that he was hit in the teeth with what felt like boots, but he did not see whose boots they were. Defendant testified that he wore tennis shoes that night.

During the trial, Puddy Mount and Defendant both testified that Defendant did not participate in the beating of Miller. Mount testified that Defendant attacked Darling as he walked out of the bar. Defendant testified that he intercepted Darling in order to keep him out of the fight; he stated that Mount kicked Darling and he, Defendant, attempted to stop Mount from doing so.

Defendant was charged with two crimes: aggravated assault (Count 1) upon Raymond Miller, and felony assault (Count 2) upon Merle Darling. The case proceeded to trial and, at the close of the State’s case, Defendant moved for a directed verdict as to both counts. The motion was denied. On September 23,1992, the jury returned its verdict, finding Defendant not guilty of aggravated assault and guilty offelony assault. Defendant moved for judgment notwithstanding the verdict. That motion was also denied. At the sentencing hearing the District Court deferred imposition of sentence for three years and placed Defendant on probation, subject to certain conditions.

There are two assignments of error on appeal:

1. That the court erred in refusing to grant the motion for directed verdict; and

2. That the court erred in refusing to grant the motion for judgment N.O.V.

The issues raised in these motions are twofold:

1. Whether the tennis shoes worn by Defendant were a weapon under the assault statute; and

2. Whether the language in the felony assault count of the information precluded the jury from convicting Defendant of that count after acquitting him of aggravated assault.

Standards of Review

Section 46-16-403, MCA, permits the district court to dismiss a criminal action at the close of the prosecution’s case when the evidence is insufficient to support a finding or verdict of guilty. This Court has construed this statute to mean that “ ‘a verdict of acquittal may be directed in favor of the defendant only if no evidence exists upon which to base a guilty verdict.’ ” State v. Haskins (1992), 255 Mont. 202, 210, 841 P.2d 542, 547 (quoting State v. Christofferson (1989), 238 Mont. 9, 11, 775 P.2d 690, 692) (emphasis in original). The Court has repeatedly stated that a defendant is entitled to an acquittal if reasonable persons could not conclude from the evidence taken in the light most favorable to the prosecution that guilt has been proven beyond a reasonable doubt. See State v. Doney (1981), 194 Mont. 22, 29, 636 P.2d 1377, 1381; Haskins, 841 P.2d at 547 (citing State v. Laverdure (1990), 241 Mont. 135, 785 P.2d 718).

The standard of review for a trial court’s refusal to grant a defendant’s motion for a directed verdict of acquittal is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This is the same standard of review used by the Court to determine the sufficiency of the evidence supporting a conviction. State v. Bower (1992), 254 Mont. 1, 6, 833 P.2d 1106, 1110.

The decision to direct a verdict at the close of the State’s case lies within the sound discretion of the trial court and is not disturbed on appeal absent an abuse of that discretion. See State v. Graves (1990), 241 Mont. 533, 535, 788 P.2d 311, 313.

The statutes governing practice and procedure in criminal proceedings do not provide for judgment notwithstanding the verdict. Cf. Rule 50(b), (c), (d), M.R.Civ.P. However, § 46-16-702, MCA, permits a defendant to move for a new trial following a verdict of guilty, and under this statute, the district court may modify or change the verdict by finding the defendant guilty of a lesser included offense or finding the defendant not guilty. Defendant’s motion for judgment notwithstanding the verdict will be deemed one made under that section.

The standard of review of a district court’s ruling on a motion for new trial is whether the district court abused its discretion. State v. Gambrel (1990), 246 Mont. 84, 91, 803 P.2d 1071, 1076.

Issue 1

Defendant argues that the State failed to prove with sufficient evidence that his footwear was a weapon under the felony assault statute. In chambers, while arguing the motion for directed verdict, Defendant conceded that he had been fighting with and had committed “a technical assault” on Merle Darling, but argues that the State had failed to identify the weapon. He further argues that the tennis shoes, which Defendant wore during the assault, are not weapons as defined in the statute because they are incapable of producing serious bodily injury.

Section 45-2-101(71), MCA, defines “weapon” as “any instrument, article, or substance that, regardless of its primary function, is readily capable of being used to produce death or serious bodily injury.” One of the elements of felony assault upon Darling was use of a weapon. Section 45-5-202(2)(a), MCA. “Serious bodily injury” means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ. It includes serious mental illness or impairment. Section 45-2-101(59), MCA.

Whether a weapon was used in the commission of a criminal assault is a factual element to be determined by the jury. The test for sufficiency of the evidence with respect to a factual element of a crime is whether any rational trier of fact could have found that element beyond a reasonable doubt. State v. Evans (1991), 247 Mont. 218, 224, 806 P.2d 512, 516.

The statute defining “weapon” for purposes of the assault statutes must be construed according to the plain meaning of the language therein. See State ex rel. Woodahl v. District Court (1973), 162 Mont. 283, 292, 511 P.2d 318, 323. When the language of the statute is plain, unambiguous, direct and certain, the statute speaks for itself and there is nothing left for the court to construe. Hammill v. Young (1975), 168 Mont. 81, 85-86, 540 P.2d 971, 974. The language of § 45-2-101(71), MCA, is broad enough to include any instrument that although not dangerous per se may be considered a weapon, depending on its maimer of use and the circumstances in which it is used.

Many jurisdictions have adopted this approach, when considering shoes as weapons. See Jones v. Commonwealth (Ky. 1953), 256 S.W.2d 520 (shoes may be regarded within the term “deadly weapon” when employed in such a manner as may be reasonably calculated to produce great bodily injury or death); Medlin v. United States (D.C.Cir. 1953), 207 F.2d 33, cert. denied, (1954) 347 U.S. 905, 74 S.Ct. 431, 98 L.Ed. 1064 (shoes are dangerous weapons when they inflict serious injury); United States v. Barber (D. Del. 1969), 297 F.Supp. 917, aff’d, (3rd Cir. 1971), 442 F.2d 517; State v. Born (Minn. 1968), 159 N.W.2d 283; Hay v. State (Okla. Crim. App. 1968), 447 P.2d 447 (shoes are not dangerous weapons per se but the manner of their use might make them so); Johnson v. State (Miss. 1970), 230 So.2d 810; People v. Hale (Mich. Ct. App. 1980), 292 N.W.2d 204, vacated on other grounds, (Mich. 1980) 298 N.W.2d 421; State v. Wraggs (Mo. Ct. App. 1973), 496 S.W.2d 38, cert. denied, (1974) 414 U.S. 1160, 94 S.Ct. 920, 39 L.Ed.2d 113.

In Commonwealth v. Polydores (Mass. Ct. App. 1987), 507 N.E.2d 775, rev. denied, (Mass. 1987) 509 N.E.2d 1202, the defendant, wearing running shoes, kicked the victim repeatedly, causing a fractured nose, black eyes and bruises. The court held that the evidence at trial was sufficient to support a conviction of assault with a dangerous weapon. In State v. Munoz (La. Ct. App. 1991), 575 So.2d 848, cert. denied, (La. 1991), 577 So.2d 1009, the defendant kicked the victim while wearing tennis shoes, causing serious injuries. The tennis shoes qualified as a dangerous weapon within the meaning of the aggravated battery statute.

Kicking with a tennis shoe clad foot presents a question for the jury whether Defendant employed a weapon, under all the circumstances surrounding the incident. See e.g. Hale, 292 N.W.2d at 205; Johnson, 230 So.2d at 811; Polydores, 507 N.E.2d at 776. To rule that a tennis shoe is not a weapon as a matter of law would deprive the jury of this important fact-finding function. The inquiry here is not whether the tennis shoe is a weapon per se, but whether, under the circumstances of the assault and the manner in which it was used, it was a weapon. Accordingly, the State was required to prove beyond a reasonable doubt that the ordinarily harmless footwear was used in such a way that rendered it readily capable of producing death or serious bodily injury.

This holding is consistent with our prior decisions addressing weapons. In State v. Evans (1991), 247 Mont. 218, 806 P.2d 512, we affirmed the jury finding that a stem gun was a weapon. In State v. Howard (1981), 195 Mont. 400, 637 P.2d 15, we upheld a finding that pantyhose was a weapon where it was used to strangle the victim. In State v. Klemann (1981), 194 Mont. 117, 634 P.2d 632, a glass ashtray was properly found to be a weapon, when the victim was struck on the head with it repeatedly. In State v. Matson (1987), 227 Mont. 36, 736 P.2d 971, a pellet gun qualified as a weapon when the defendant pointed it at the victims and threatened them.

Defendant refers to State v. Deshner (1977), 175 Mont. 175, 573 P.2d 172, in urging us to declare that a tennis shoe is not a weapon. In that case, the victim was struck in the face with a projectile while he was in his car. He testified that he was not aware of exactly what had hit him and was not sure if the projectile had been propelled by a slingshot; nor did he know who flung the projectile at him. The defendant stated that he had shot at the victim’s car, but was not sure that he had actually struck the victim. No other witnesses were called to show that the victim had been struck by a projectile fired from a slingshot or that defendant had fired a projectile at the victim, even though there were two other individuals in the victim’s car at the time of the incident. Neither the slingshot nor the projectile was introduced into evidence. The record was barren of any testimony that the slingshot-projectile combination was in fact a weapon capable of producing death or bodily injury, and the victim suffered only a bruise. We held that the testimony when taken as a whole failed to prove that the assault was committed with a weapon “capable of being used to produce death or serious bodily injury.” Deshner, 573 P.2d at 174.

In the instant case, the victim, Merle Darling, testified that he was kicked repeatedly with what he thought was a boot, because it felt like one. Defendant testified that he wore tennis shoes that night, and introduced them into evidence. Darling sustained various facial injuries, including shattering of his dentures, cutting of his gums and the inside of his lip, cuts above the eyes and behind the ears, and bruised arms, shoulders and ribs. The jury had sufficient evidence, therefore, to find that Defendant had kicked Darling with a tennis shoe, and that based on the circumstances of the assault and the resulting injuries sustained by Darling, the tennis shoe was readily capable of causing serious bodily injury.

Issue 2

Defendant asserts that the jury’s verdict as to the felony assault count should be reversed, because the language in that count referred to the occurrence in the aggravated assault count, of which he was acquitted. Specifically, Defendant asserts that the jury verdict of guilty on Count 2 but not guilty on Count 1 is inconsistent because the language in Count 2 describes the footwear as the same used in the assault against Raymond Miller in Count 1.

The information contained the following language, which was included in Jury Instruction Number 5:

Count II

The Defendant, on or about December 9, 1991, committed the offense of Felony Assault, a Felony, in that he did purposely or knowingly cause bodily injury to another with a weapon, to-wit: Defendant knocked Merle Darling to the ground and kicked him in the head with footwear which caused pain, bruising, contusions and broken teeth to Merle Darling. Said footwear was the same as used on Raymond Miller and was readily capable of being used to produce death or serious bodily injury as evidenced by injuries caused to Raymond Miller as set forth in Count I.

During their deliberations, the jury presented questions to the court, one of which was:

If the defendant is found guilty on Count II do we have to find him guilty on Count 1? Since the bottom line on Court’s #5 page 1 indicates that the footwear was the same as used on Raymond Miller.

ANSWER: No.

It is well settled that the only purpose of an information is to let the defendant know what he is charged with having done, so that he can prepare his defense. State v. Straight (1959), 136 Mont. 255, 263, 347 P.2d 482, 487; State v. D.B.S. (1985), 216 Mont. 234, 238, 700 P.2d 630, 633. Incorporating the information in instructions to the jury is not error where it contains basically statutory language that applies to the crime of which the defendant is charged. State v. Riley (1982), 199 Mont. 413, 430, 649 P.2d 1273, 1281-82; State v. McKenzie (1980), 186 Mont. 481, 507-08, 608 P.2d 428, 444-45, cert. denied, (1980) 449 U.S. 1050, 101 S.Ct. 626, 66 L.Ed.2d 507.

The language of the information that was incorporated into Instruction 5 did not redefine the elements of the crime of felony assault, nor did it change the nature of the offense or the burden of proof. It merely contained surplus language about the footwear used by Defendant. That same instruction specifically instructed the jury that each count in the information charged a distinct offense, that they must decide each count separately, and that the Defendant may be found guilty or not guilty of any or all of the offenses charged. It also enumerated the individual elements of each of the offenses charged, as well as the applicable definitions.

This Court has previously held that each instruction must be viewed in the context of the overall charge. If all instructions reviewed as a whole, fairly and accurately present the case to the jury, the fact that one instruction, standing alone is not as full as it might have been is not reversible error. Riley, 649 P.2d at 1281.

The jury’s question concerning the surplus language in Count 2 indicated some confusion which was adequately cleared up by the court in its answer. In view of all of the instructions given to the jury, the surplus language contained in Count 2 of the information did not invalidate the verdict.

Defendant refers to State v. Later (1993), 260 Mont. 363, 860 P.2d 135. In that case, the defendant was charged with official misconduct, but the information charged the crime under the wrong statutes. The district court submitted an instruction to the jury that quoted the language of the correct statute. We held that this amendment of the information was reversible error, because the change was substantive to the charge, and thus deprived the defendant of adequate notice of the crime charged and of the opportunity to defend himself. Later, 860 P.2d at 137. In the instant case, the language in Count 2 simply refers to footwear used against another victim as described in Count 1. It does not substantively affect the elements of the crime of felony assault.

In his reply brief, Defendant raised the issue of whether the judge’s answers to jury questions during the deliberations were prejudicial and inaccurate. This issue was raised for the first time in Defendant’s reply brief, and is thus not proper for consideration. Rule 23, M.R.App.P.

In summary, we conclude that the issue of whether the tennis shoe used by Defendant in the assault in Count 2 was a weapon was properly a question of fact for the jury. The jury’s finding that a weapon was used in the assault was supported by the evidence. The surplus language in Count 2, which was given to the jury in an instruction, did not invalidate the jury’s verdict of guilty as to that count.

The judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY and WEBER concur.