State v. Torres

• Decision Date: 16 April 2013
• Docket Number: No. DA 12–0212.,DA 12–0212.
• Citation: 369 Mont. 516,299 P.3d 804
• Parties: STATE of Montana, Plaintiff and Appellee, v. Zachariah TORRES, Defendant and Appellant.
• Court: Montana Supreme Court

369 Mont. 516

299 P.3d 804

STATE of Montana, Plaintiff and Appellee,

v.Zachariah TORRES, Defendant and Appellant.

No. DA 12–0212.

Supreme Court of Montana.

Submitted on Briefs Jan. 3, 2013.

Decided April 16, 2013.

For Appellant: Brian K. Gallik; Goetz, Gallik & Baldwin, P.C.; Bozeman, Montana, Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, Washington.

For Appellee: Timothy C. Fox, Montana Attorney General; Mardell Ployhar, Assistant

Attorney General; Helena, Montana, Ed Corrigan, Flathead County Attorney; Alison Howard, Travis Ahner, Deputy County Attorneys; Kalispell, Montana.

Justice BETH BAKER delivered the Opinion of the Court.

[369 Mont. 517]¶ 1 Zachariah Torres appeals a judgment of the Eleventh Judicial District Court after a Flathead County jury convicted him of aggravated assault, burglary, criminal endangerment, and assault on a peace officer, all felonies. We consider the following issues on appeal:

¶ 2 1. Was the aggravated assault conviction supported by sufficient evidence?

¶ 3 2. Was the burglary conviction supported by sufficient evidence?

¶ 4 3. Should the Court exercise plain error review of Torres's argument that the convictions for aggravated assault and criminal endangerment violated statutory and constitutional double jeopardy protections?

¶ 5 We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 6 On May 28, 2009, Zachariah Torres (Torres) and his wife, Grendy Torres, got into an argument at their Whitefish, Montana, home. Torres had discovered that Grendy was taking money from him and his family and sending it to her family in her home country of Costa Rica. At some point during the argument, Grendy left for the home of her coworker, Marina Sunell. Torres came to Marina's house looking for Grendy and knocked on Marina's door. Marina refused to open the door and called 911. When police arrived, Torres was not present and Grendy and Marina were reluctant to speak with the officers. After the police left, Torres returned and resumed ringing the doorbell and knocking on the door. Grendy followed Marina's instructions to go upstairs. Torres broke down the door, entered Marina's home, found Grendy, and left with her. Marina again called 911 and reported that Torres had broken down her door and taken Grendy. When officers arrived, they found Marina “very upset.” She told them Torres had grabbed Grendy “like a piece of rag” and dragged her from the house.

¶ 7 Torres and Grendy got into Torres's Subaru and began driving toward their residence. They continued to argue as Torres drove. During the trip, Grendy hit her head on the windshield, causing a small crack in the glass. Torres then punched the windshield, causing a second, larger break.

¶ 8 When Torres and Grendy arrived home, Grendy went to their upstairs bedroom. Torres retrieved a Glock .45 from his truck and followed Grendy upstairs, pointing the gun at his own head. As officers who had been dispatched in response to Marina's second 911 call approached, they heard a muffled gunshot from the direction of the Torres residence. Torres had opened the sliding glass door from their bedroom and fired a shot at the ground.

¶ 9 When officers arrived and surrounded the Torres property, Torres's younger brother came out of the house. He told the officers that Torres and Grendy were arguing, told them Torres had a Glock .45, and provided Torres's phone number. An officer called the number and identified himself. A male voice reportedly answered the phone, said “go fuck yourself,” then hung up. The police could hear Torres and Grendy arguing in Spanish upstairs and heard Grendy yelling “no, no, don't,” “stop,” and “quit.” One officer reported hearing Torres use the Spanish words for “kill” and “die.” Officers then heard a male voice yell something to the effect of, “come in and get me you fucking pussies, I'll blow your heads off,” which they took to be a threat. Officer Stan Ottosen was standing on the top of a trailer in order to get a better view inside the home. Torres saw Officer Ottosen aiming a rifle in his direction and closed the sliding glass door. Torres then fired a second shot that hit the top of the sliding glass door, shattered the glass, and passed above the officers' heads.

¶ 10 Shortly thereafter, Grendy came out of the house and was taken into custody. Officers testified that she was frantic, crying and shaking, and left the house at a fast-paced walk or jog. Torres remained inside the house and fired a third shot into the bedroom floor. He then surrendered himself to police.

¶ 11 Officer Dorothy Browder took Grendy to the Flathead County Sheriff's Office, where the two spoke as they awaited the arrival of a detective. Grendy stated in English that Torres told her he wanted to show people he had a big gun. She also stated that she had been afraid she would die that night and wanted help returning to Costa Rica.

¶ 12 An officer also interviewed Torres at the station. Torres said that Grendy did not seem to want to leave Marina's house that day and acknowledged that she may have said so, but said that he grabbed her firmly by the arm and led her to the car. He stated that he had not harmed anyone and did not believe there was any reason for law enforcement to become involved in the situation. When asked about his use of the firearm, he explained that he fired the first shot because he wanted Grendy to understand the severity of the situation she had caused. He also grabbed Grendy and held her close because Officer Ottosen was pointing a rifle at the house and Torres was “unsure of the situation.” He stated that the second and third shots were accidental and not directed at the officers or at anyone else. He said he was not intending to hurt himself, but was trying to send a message to Grendy that this was a “serious situation.”

¶ 13 On May 29, 2009, the following day, Grendy provided a full statement to Detective Kirby Adams and Deb Knaff, a victim's advocate. She stated that Torres had taken her from Marina's home against her will. She also stated that, while driving in the Subaru, Torres had been hitting her and pushed her head into the windshield, causing the first small crack. He then punched the windshield in frustration and anger, causing the larger break.

¶ 14 At Torres's January 2011 jury trial, however, Grendy provided a different account of those events. Grendy testified that she willingly departed Marina's house with Torres and that they were holding hands as they left. Marina similarly changed her account at trial. Asked whether Grendy left the house willingly or by force, she responded, “half and half.” Grendy also changed her account of the events that occurred while driving in the Subaru. She testified that she had been “pushing [Torres], hitting him and pulling him” and that she “slipped from pulling and hit her head” on the windshield, since she was not wearing a seatbelt. She testified that Torres then punched the windshield because he “felt bad because I hit my head[.]” A copy of Torres's interview was entered into evidence and played for the jury.

[369 Mont. 520]¶ 15 On January 14, 2011, following five days of trial, the jury convicted Torres of four felonies: aggravated assault, burglary, criminal endangerment, and assault on a peace officer. On February 7, 2012, the District Court entered judgment and sentenced Torres to eight years in prison with five years suspended. Torres appeals.

STANDARD OF REVIEW

¶ 16 We review de novo whether sufficient evidence supports a conviction. State v. Trujillo, 2008 MT 101, ¶ 8, 342 Mont. 319, 180 P.3d 1153 (citing State v. Swann, 2007 MT 126, ¶ 19, 337 Mont. 326, 160 P.3d 511). We view the evidence in the light most favorable to the prosecution and determine whether “any rational trier of fact could have found all the essential elements of the offense beyond a reasonable doubt.” Trujillo, ¶ 8 (citing State v. Gladue, 1999 MT 1, ¶ 34, 293 Mont. 1, 972 P.2d 827). On direct appeal, “the appellant is limited to those issues that were properly preserved in the district court and to allegations that his or her sentence is illegal.” State v. Rosling, 2008 MT 62, ¶ 76, 342 Mont. 1, 180 P.3d 1102 (citations omitted).

DISCUSSION

¶ 17 1. Was the aggravated assault conviction supported by sufficient evidence?

¶ 18 Torres mounts two challenges to the sufficiency of evidence supporting his conviction for aggravated assault. First, he contends that the prosecution improperly combined separate incidents to accumulate proof of all the elements of aggravated assault.Torres points out that neither the charging documents nor the State's case at trial clarified which specific events gave rise to the charge. He divides his course of conduct on the evening of May 28, 2009, into three episodes: (1) the events at Marina's home; (2) the events in the Subaru; and (3) the events at the Torres home. He contends that the three episodes may not be viewed together to comprise the crime because aggravated assault is not a “continuous” offense. He argues that none of the three events considered in isolation yielded sufficient evidence at trial to prove the crime's elements. The State responds that “the continuous events that started when Torres broke down Marina's door and took Grendy away and ended when Grendy left her home” could be viewed together in support of the aggravated assault charge. Torres argues, secondly, that regardless of how the events are viewed, the State's case at trial rested on uncorroborated prior inconsistent statements that are legally insufficient to sustain his conviction.

[369 Mont. 521]¶ 19 Under § 45–5–202(1), MCA, “[a] person commits the offense of aggravated assault if the person purposely or knowingly causes serious bodily injury to another or purposely or knowingly, with the use of physical force or contact, causes reasonable apprehension of serious bodily injury or death in another.” The State argued in closing that the aggravated assault...