State v. T. Giffin

2021 MT 190, 491 P.3d 1288

Opinion

07/27/2021 DA 19-0428

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 19-0428

2021 MT 190

STA IE OF MONTANA,

Plaintiff and Appellant, FiLLD v. JUL 27 2021 Bowen Greenwood Clerk of Supreme Court TYLER EDWARD GIFFIN, State of IVIontena

Defendant and Appellee.

APPEAL FROM: District Court ofthe Eleventh Judicial District, In and For the County of Flathead, Cause No. DC-19-176A Honorable Amy Eddy, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Austin Knudsen, Montana Attorney General, Micheal S. Wellenstein, Tammy K Plubell, Assistant Attorneys General, Helena, Montana

Travis Ahner, Flathead County Attorney, Ashley Suzanne Frechette, Deputy County Attorney, Kalispell, Montana

For Appellee:

Chad Wright, Appellate Defender, Helena, Montana

Submitted on Briefs: June 16, 2021

Decided: July 27,2021

Filed:

Clerk Justice Laurie McKinnon delivered the Opinion of the Court.

The State appeals from an Eleventh Judicial District Court, Flathead County, order

granting Tyler Giffin's Motion to Disrniss for lack of probable cause. We reverse.

¶2 We review the following issue on appeal:

Did the State establish probable cause in its Information when it charged Giffin with criminal endangerment?

FACTUAL AND PROCEDURAL BACKGROUND

On June 24, 2019, the State moved for leave to file an information charging Giffin

with felony criminal endangerment, in violation of § 45-5-207(1), MCA. In the affidavit

in support of its motion, the State set forth the following facts:

On June 22, 2019, [an] officer with the Kalispell Police Departrnent responded to a report ofa possible gunshot at the Outlaw Inn on Highway 93, within Flathead County. Officer Smith spolce with Michael Slaughter who stated he heard what sounded like a gunshot and observed a hole in the window of the room below his. Slaughter also reported he heard similar sounds the night before.

Officers observed the blinds ofthe downstairs unit had a gunshot-like pattern of holes and the glass was broken out of the window. Officers Smith, Bain, and Clackler made contact with David Giffin and TYLER EDWARD GIFFIN at the room. TYLER EDWARD GIFFIN stated that he was the person who fired the gun. David stated that TYLER EDWARD GIFFIN is a drug user and was hallucinating when he fired a shotgun at the window. David also stated the night before TYLER EDWARD GIFFIN fired a revolver into a wall. Another person in the unit also stated TYLER EDWARD GIFFIN was hallucinating.

Officer Smith noted the rounds exited the window towards the parking area and into an unoccupied unit of the building. The parking area outside the window is commonly used by the occupants of the Outlaw Inn.

2 ¶4 The District Court granted the State's Motion for Leave to File an Information. On

June 24, 2019, the State filed its Information charging Giffin with felony criminal

endangerrnent under § 45-5-207(1), MCA.

On July 9, 2019, Giffin filed a motion to dismiss the criminal endangerrnent charge,

arguing that there were no facts establishing probable cause that he had committed the

offense of criminal endangerment. Specifically, Giffin argued: "Nowhere in the affidavit

does it allege that there were people in the parking lot at the time ofthe offense. No specific

victim is alleged in the charging documents." He argued that "[n]one of the facts set forth

in the charging documents conclude that another was actually subjected to a substantial

risk of death or serious bodily injury by the alleged acts of the Defendant." On

July 10, 2019, before the State could file a response, the District Court issued an order

granting the Motion to Disrniss and did not provide any reasons for its decision.

¶6 The State appeals.

STANDARD OF REVIEW

¶7 Initially, we must resolve what standard ofreview to apply. The State provides that

a district court's decision to grant a motion to dismiss in a criminal case is a question of

law that this Court reviews de novo, citing State v. White Bear, 2005 MT 7, ¶ 5,

325 Mont. 337, 106 P.3d 516. Giffin argues that because this case involves a question of

whether the State established probable cause in the charging documents, this Court should

review the District Court's decision for an abuse of discretion, citing State v. Holt,

2006 MT 151, If 20, 332 Mont. 426, 139 P.3d 819. ¶8 We have consistently stated the standard of review with respect to motions to

dismiss as follows: a trial court's grant or denial of a motion to disrniss in a crirninal case

is a question of law that we review de novo. State v. Violette, 2009 MT 19, ¶ 10,

349 Mont. 81, 201 P.3d 804 (rnotion to disrniss on speedy trial grounds); State v. Mallak,

2005 MT 49, ¶ 13, 326 Mont. 165, 109 P.3d 209 (rnotion to dismiss on double jeopardy

grounds); State v. Adgerson, 2003 MT 284, ¶ 24, 318 Mont. 22, 78 P.3d 850 (motion to

dismiss based on the assertion that Montana's stalking statute was overbroad);

State v. Knowles, 2010 MT 186, ¶ 23, 357 Mont. 272, 239 P.3d 129 (motion to disrniss

based on vindictive prosecution). However, we have also generally deferred to a district

court's discretion when the district court has reviewed an information and affidavit and

found the charging documents established probable cause that a particular person

committed a particular offense. State v. Dunfee, 2005 MT 147, ¶ 31, 327 Mont. 335,

114 P.3d 217("The determination of whether a motion to file an information is supported

by probable cause is left to the sound discretion ofthe trial court."). The official comments

to Montana's leave to file information statute, § 46-11-201, MCA, suggest such review

("Obtaining leave to file an information is not a mere perfunctory rnatter, but rests in the

sound discretion of the district judge.").

¶9 Though the precise question of what standard of review should be applied was not

directly before the Court in Holt, Justice Nelson's concurrence discussed the issue at

length. He identified the inconsistencies between an abuse of discretion standard when

reviewing probable cause, and a de novo standard when reviewing a motion to dismiss. He

4 noted that the standard used seemed to depend largely on whether the alleged insufficiency

in the affidavit was grounded in an underlying question oflaw or was based on an alleged

failure to set forth sufficient factual data to support the charge. Holt, ¶ 56 (Nelson, J.,

concurring). Even this distinction, however, has not clarified what standard of review the

Court should apply. We have applied de novo review in cases involving questions of both

factual and legal sufficiency,' as well as in cases involving only a question of legal

sufficiency.2 We have applied abuse of discretion review in cases involving only questions

of factual sufficiency,3 in cases involving questions of both factual and legal sufficiency,4

and in cases involving only questions of legal sufficiency.5

1110 It is often difficult to categorize the question for establishing probable cause as being

purely one offactual sufficiency or of legal sufficiency. Every case contains both a factual

cornponent and a legal component. Each case involves a set ofunique facts and, as a rnatter

oflaw, the "recitation ofsome minimum quantum ofthose facts in the affidavit supporting

1 E.g., State v. Thompson, 243 Mont. 28, 33, 792 P.2d 1103, 1107 (1990); State v. Smith, 2004 MT 191, ¶ 12, 322 Mont. 206, 95 P.3d 137.

2 E.g., State v. Matthews, 183 Mont. 405,600 P.2d 188 (1979); State v. Villanueva, 2005 MT 192, ¶ 9, 328 Mont. 135, 118 P.3d 179.

3 E.g., State v. Riley, 199 Mont. 413, 423, 649 P.2d 1273, 1278 (1982); State v. Buckingham, 240 Mont. 252, 255-56, 783 P.2d 1331, 1334 (1989); State v. Ramstead, 243 Mont. 162, 166, 793 P.2d 802, 804 (1990); State v. Arrington, 260 Mont. 1, 6-8, 858 P.2d 343, 346-47 (1993); Dunfee, ¶ 31.

4 E.g., State v. Bradford, 210 Mont. 130, 139, 683 P.2d 924, 929 (1984); State v. Elliott, 2002 MT 26, ¶ 27, 308 Mont. 227, 43 P.3d 279.

5 E.g., State v. Fehringer, 2013 MT 10, ¶ 22, 368 Mont. 226, 293 P.3d 853; City ofBozeman v. Lehrer, 2020 MT 55, ¶ 7, 399 Mont. 166, 459 P.3d 850. 5 the rnotion for leave to file information" is necessary to establish the probability that the

accused committed the crime or crimes to be charged. Holt, ¶ 66 (Nelson, J., concurring)

(citing State v. Arrington, 260 Mont. 1, 6-7, 858 P.2d 343, 346 (1993); State v. Elliott,

2002 MT 26, ¶ 26, 308 Mont. 227, 43 P.3d 279). "It is simply impossible to determine

whether probable cause has been established in either a factual or legal vacuum."

Holt, ¶ 67 (Nelson, J., concurring). It is thus clear that categorizing these cases simply as

questions of either factual sufficiency or legal sufficiency does little to inform us on the

appropriate standard of review.

¶11 The determination is a mixed question of law and fact. "We have, with minor

exceptions not important here, applied the de novo standard in criminal cases where we

consider mixed questions of law and fact . . ." Holt, ¶ 67 (Nelson, J., concurring);

see State v. Grixti, 2005 MT 296,¶ 15, 329 Mont. 330, 124 P.3d 177(ineffective assistance

of counsel); State v. Favi, 2005 MT 288, ¶ 10, 329 Mont. 273, 124 P.3d 164 (voluntariness

of plea); Stop Over Spending Mont. v. State, 2006 MT 178, ¶ 10, 333 Mont. 42,

139 P.3d 788 (issues surrounding ballot statements approved by the Attorney General).

"Mixed questions of law and fact are presented to this Court when the historical facts of a

case are admitted or established, the applicable law is undisputed, and the issue is whether

the facts satisfy the statutory standard." Stop Over Spending Mont., ¶ 10 (citing State v.

Warclub, 2005 MT 149, ¶ 21, 327 Mont. 352, 114 P.3d 254 (citing Lambert v. Blodgett,

393 F.3d 943, 965 (9th Cir. 2004) (citing Pullman-Standard v. Swint, 456 U.S. 273,

289 n. 19, 102 S. Ct. 1781, 1790(1982)))). When parties raise the issue ofthe sufficiency

6 of the evidence to establish probable cause, the issue is whether the alleged facts satisfy

the statutory elements of the crirne charged; that is, whether there is probable cause that

the accused had committed the offense of criminal endangerment. Thus, parties are

presenting a mixed question of fact and law. Accordingly, where the question is whether

the affidavit in support of a motion for leave to file an information directly in the district

court is legally or factually sufficient, it is a mixed question of law and fact that we will

review de novo. A de novo standard of review addresses both the factual and legal

components in a motion to dismiss an information for lack of probable cause.

DISCUSSION

¶12 Did the State establish probable cause in its Information when it charged GWin with criminal endangerment?

¶13 On appeal, the State argues the District Court erred in granting Giffin's motion to

disrniss. It maintains the District Court's grant of Giffin's motion to dismiss was based on

Giffin's argument that the State failed to identify a specific victim in the charging

documents—an identification of which, the State asserts, is not a requirement when

charging a defendant with criminal endangerment. Giffin argues this is a rnisrepresentation

of the dismissal and rnaintains, rather, that the State failed to establish probable cause

because the Information was devoid of details showing Giffin knowingly created a risk of

death or serious bodily injury to another. On appeal, Giffin concedes that the offense of

criminal endangerment does not require identification of a specific victim but argues it

7 does require that Giffin had to knowingly create a specific identifiable risk of harm to

another.

¶14 The statutory requirements governing the filing ofan inforrnation and the supporting

affidavit are set forth in § 46-11-201, MCA,which provides:

(1)The prosecutor may apply directly to the district court for permission to file an information against a named defendant . . . .

(2)An application must be by affidavit supported by evidence that the judge . . . may require. If it appears that there is probable cause to believe that an offense has been committed by the defendant,the judge ... shall grant leave to file the information, otherwise the application is denied.

¶15 "The sufficiency of charging documents is established by reading the inforrnation

together with the affidavit in support of the motion for leave to file the information."

Elliott, ¶ 26. "[E]vidence to establish probable cause need not be as complete as the

evidence necessary to establish guilt." Arrington, 260 Mont. at 6, 858 P.2d at 346(quoting

State v. Bradford,210 Mont. 130, 139,683 P.2d 924,929(1984)). The supporting affidavit

does not have to make out a prima facie case that the defendant committed an offense;

rather, a probability that the defendant committed the offense is sufficient. Elliott, ¶ 26.

Nonetheless, the inforrnation must reasonably apprise the accused of the charges against

him to enable him the opportunity to prepare a defense. State v. Wilson, 2007 MT 327,

¶ 25, 340 Mont. 191, 172 P.3d 1264. We apply the "common understanding" rule to

determine ifthe charging language ofa document allows a person to understand the charges

against him. Wilson, ¶ 25 (citing State v. Brogan, 261 Mont. 79, 86, 862 P.2d 19,

23 (1993)). "Under this standard, the test of the sufficiency of a charging document is

8 whether the defendant is apprised ofthe charges and whether he will be surprised." Wilson,

¶ 25 (citing Brogan, 261 Mont. at 86, 862 P.2d at 23)(internal quotation marks omitted).

¶16 Section 45-5-207(1), MCA, defines the offense of criminal endangerment. It

provides in pertinent part, "A person who knowingly engages in conduct that creates a

substantial risk of death or serious bodily injury to another commits the offense of criminal

endangerrnent."

¶17 We turn first to the issue of whether a specific victirn need be identified to charge a

defendant with criminal endangerment. Though neither party is challenging our holding

in State v. Bell, 277 Mont. 482, 489, 923 P.2d 524, 528 (1996), that "no specific victirn

need be identified tofind a defendant guilty of criminal endangerment"(emphasis added);

here, the issue is whether a specific victim rnust be identified to charge a defendant with

criminal endangerment. As we have held that identification of a specific victim is not an

element of criminal endangerment before a case may be subrnitted to a jury,

Bell, 277 Mont. at 489,923 P.2d at 528, it cannot be a requirement under the lesser standard

required to withstand a motion to disrniss an information. Accordingly, the State was not

required to identify a specific victim in its charging documents.

¶18 Giffin argues the issue lies not in the State's failure to identify a specific victirn;

rather, Giffin argues the State's "complete lack of basic evidence showing his knowledge

about the substantial risk of death or serious bodily injury" to another is insufficient as a

charging document. Giffin argues that because the statute requires a defendant knowingly

engages in conduct that creates a substantial risk of death or serious bodily injury to

9 another, probable cause would depend on facts Giffin knew, or should have known, that

where he was shooting could cause the substantial risk of death or serious bodily injury.

Giffin relies on State v. Lambert, 280 Mont. 231, 929 P.2d 846 (1996). In Lambert, we

defined "knowingly" as it applies to the offense of criminal endangerment. We further

analyzed and clarified the mental state required for criminal endangerrnent in State v.

Fleming, 2019 MT 237, 397 Mont. 345, 449 P.3d 1234. In Lambert, we explained that

"the criminal endangerment statute emphasizes result over conduct and that more is

required of the accused's mental state than that he be aware only that his conduct is

incorrect." Fleming, ¶ 26; see Lambert, 280 Mont. at 236, 929 P.2d at 849. Rather, it is

the "appreciation of the probable risks to others posed by one's conduct that creates

culpability for criminal endangerment . . . ." Lambert, 280 Mont. at 236, 929 P.2d at 849.

Thus, we held that "the mental state 'knowingly' applies, without apparent distinction, to

the elements (1) engage in conduct (2) that creates a substantial risk of death or serious

bodily harm to another." Lambert, 280 Mont. at 237, 929 P.2d at 850. Knowingly,

therefore, applies to both the conduct and to the result of that conduct.

¶19 Here, the parties do not dispute that Giffin knowingly engaged in the conduct of

firing a shotgun—indeed, Giffin admitted as much to the responding officers. Giffin,

however, argues that by itself, firing a gun indoors cannot form the basis of a criminal

endangerment charge. He maintains that the discharge must be accompanied by knowledge

ofthe high probability that the discharge would create a substantial risk of death or serious

bodily injury. This is true, but the "evidence necessary to establish probable cause need

10 not be as complete as the evidence necessary to establish guilt." Arrington, 260 Mont. at 6,

858 P.2d at 346 (quoting Bradford, 120 Mont. at 139, 683 P.2d at 929).

¶20 Here, the State only had to establish a probability that Giffin committed the offense

of criminal endangerment. Firing a gun through a hotel window into a parking lot that is

"commonly used" by the hotel's patrons clearly could endanger a person in the parking lot.

The State sufficiently alleged facts that Giffin "knowingly" engaged in conduct and the

conduct created a substantial risk of death or serious bodily injury. The State's affidavit

established that Giffin was hallucinating on drugs in a hotel room when, in the presence of

two other occupants of the room, he fired his shotgun through the hotel roorn window,

which faced the hotel parking lot commonly used by guests. Officers observed that the

blinds to the window had a shotgun-like pattern of holes, and the glass was brolcen out of

the window. Though we pass no judgment on the merits of this case, the facts alleged are

sufficient to show for purposes of the charging documents that Giffin knew of the high

probability firing a gun into the hotel's parking lot would create a substantial risk of death

or serious bodily injury to another.

¶21 We recognize that the Information and supporting affidavit in this case could have

included more detail. However, here, the charging documents met the minimum

requirements. As a matter of law, they apprised the defendant of the offense charged and

the alleged facts in support of the offense were sufficient to enable hirn the opportunity to

prepare a defense. Wilson, ¶ 25. Though Giffin contends that to establish probable cause

the State needed to provide the specific time that Giffin discharged the shotgun, the

11 direction the broken window faced, the type of shotgun Giffin shot, the shotgun shell he

used, and whether or not the parking lot was in use when the shotgun discharged, these

facts are not required to withstand a motion to dismiss his criminal endangerrnent charge.

These challenges and arguments would more appropriately be raised at trial.

CONCLUSION

¶22 We conclude, under a de novo standard of review, that the State alleged sufficient

facts in support of its charge of criminal endangerment to withstand a motion to dismiss.

¶23 Reversed. C._

Justice

We concur:

Chief Justice

/4eA' /4j 0 l* e

Justices