Porter v. State

Decision Date19 December 2002
Docket NumberNo. 01-585.,01-585.
Citation313 Mont. 149,2002 MT 319,60 P.3d 951
CourtMontana Supreme Court
PartiesSteven PORTER, Petitioner and Appellant, v. STATE of Montana, Respondent and Respondent.

Jeffrey T. Renz, Kelly Lawson, School of Law, University of Montana, Missoula, Montana, For Appellant.

Mike McGrath, Montana Attorney General, John Paulson, Assistant Montana Attorney General, Helena, Montana; George J. Corn, Ravalli County Attorney, T. Geoffrey Mahar, Deputy Ravalli County Attorney, Hamilton, Montana, For Respondent.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Appellant Steven Porter was convicted of criminal endangerment, a felony, in violation of § 45-5-207, MCA (1997), negligent endangerment, a misdemeanor, in violation of § 45-5-208, MCA (1997), and misdemeanor assault, in violation of § 45-5-201(1), MCA (1997), in the Twenty-First Judicial District Court, Ravalli County. Porter filed a petition for post-conviction relief, in which he alleged that several errors resulted in his conviction, and that he received ineffective assistance of counsel. The District Court granted Porter's petition with regard to his counsel's ineffective assistance for failure to file a notice of appeal, and allowed Porter ten days in which to file an appeal. The District Court dismissed the remainder of Porter's claims. Porter appeals his original conviction for criminal endangerment, as well as the District Court's dismissal of the remaining claims in his petition for post-conviction relief. We affirm the judgment of the District Court.

¶ 2 We restate the issues on appeal as follows:

¶ 3 1. Was there sufficient evidence to support Porter's conviction of criminal endangerment?

¶ 4 2. Was Porter denied his right to effective assistance of counsel by defense counsel's failure to move for a mistrial?

FACTUAL AND PROCEDURAL BACKGROUND

¶ 5 On July 18, 1998, Steven Porter traveled to the Slate Creek Campground, located 30 miles south of Darby, Montana, intending to camp there for the night. Porter was accompanied by his brother, Jeff Porter (Jeff), Jeff's son J.C., and their friend Dustin Willoughby. At the campground, Porter encountered Randy Hill (Randy) and his family. Porter and Randy were acquaintances, as both men worked for the Selway Corporation in Stevensville, Montana.

¶ 6 Porter, Jeff and Willoughby drank beer while at the campground, and by the evening of July 18, 1998, Porter was noticeably intoxicated. Randy returned to the campground and spoke with Porter, who was drinking beer and brandishing a rifle. At Porter's insistence, Randy examined the rifle and shot a round off into a tree. As the evening progressed, Porter and his friends continued to drink beer, and Porter grew increasingly loud and obnoxious. Porter eventually became upset over a disagreement he had with his brother Jeff. Porter tackled Jeff, and a physical fight ensued between the two men. Willoughby broke up the fight by putting Porter in a headlock. When Willoughby released Porter, Porter grabbed his rifle and a couple of beers and walked to the road, which traversed a nearby hill.

¶ 7 From his vantage point on the hill, Porter verbally taunted the other campers. Porter also directed specific threats at Willoughby. In an attempt to resolve the conflict, Willoughby went up to the road to speak with Porter. The two men sat down and began to talk. At some point during their conversation, Porter became angry with Willoughby, held up his rifle, and fired approximately five shots behind Willoughby's head. Willoughby stood up, and Porter hit Willoughby with the rifle in his face and lower back.

¶ 8 Willoughby returned to his campsite and warned the others campers that it was not safe for them to remain at the campground. Willoughby then hid in some nearby bushes. Porter reappeared at the campsite and spoke with Randy. Porter informed Randy that he had shot rounds off near Willoughby's ear to scare him. Porter also told Randy that he could have killed any of the campers sitting around the campfire, as he had "beaded down" on them with his rifle. Randy understood the phrase "beaded down" to mean "take aim."

¶ 9 The Respondent, State of Montana, filed an information on August 19, 1998, charging Porter with two counts of felony assault, in violation of § 45-5-202(2), MCA (1997), misdemeanor assault, in violation of § 45-5-201(1), MCA (1997), and criminal endangerment, a felony, in violation of § 45-5-207, MCA (1997). Porter pled not guilty to all four charges on August 19, 1998. On November 10, 1998, the State filed an amended information, charging Porter with three counts of felony assault, in violation of § 45-5-202(2), MCA (1997), misdemeanor assault, in violation of § 45-5-201(1), MCA (1997), and two counts of criminal endangerment, a felony, in violation of § 45-5-207, MCA (1997). Porter pled not guilty to all charges in the amended information on November 25, 1998.

¶ 10 The case proceeded to jury trial on December 14, 1998. At the close of the State's case, Porter moved for a directed verdict on the three felony assault charges and the two criminal endangerment charges. The District Court granted Porter's motion with regard to the felony assault charges, but denied the motion with regard to the charges for criminal endangerment. Porter was convicted of one count of criminal endangerment, one count of negligent endangerment, and misdemeanor assault on December 17, 1998. Porter was sentenced by the District Court on February 16, 1999.

¶ 11 On February 7, 2000, Porter filed a petition for post-conviction relief. He later filed an amended petition for post-conviction relief on November 14, 2000. In his amended petition, Porter alleged that numerous errors resulted in his conviction, and that he received ineffective assistance of counsel. The District Court conducted a hearing on Porter's petition on February 20, 2001. On July 2, 2001, the District Court issued an order, granting in part and denying in part Porter's requested relief. The District Court found that Porter received ineffective assistance of counsel, as Porter's counsel failed to appeal his conviction. Pursuant to Rule 5(c), M.R.App.P., the District Court granted Porter ten days in which to file an appeal. The District Court dismissed the remainder of Porter's petition. On July 9, 2001, Porter appealed his original conviction for criminal endangerment, as well as the District Court's dismissal of the remaining claims in his petition for post-conviction relief.

STANDARD OF REVIEW

¶ 12 We review the sufficiency of evidence to support a jury verdict to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Bauer, 2002 MT 7, ¶ 15, 308 Mont. 99, ¶ 15, 39 P.3d 689, ¶ 15.

¶ 13 The correct standard of review of a district court's denial of a petition for post-conviction relief is whether the district court's findings of fact are clearly erroneous and whether its conclusions of law are correct. State v. Wright, 2001 MT 282, ¶ 9, 307 Mont. 349, ¶ 9, 42 P.3d 753, ¶ 9. In this regard, we note that we have in the past articulated two different standards of review in cases addressing the denial of post-conviction relief, that standard noted above and most commonly applied, and the standard of "whether substantial evidence supports the findings and conclusions of the district court." See State v. Moorman (1996), 279 Mont. 330, 335, 928 P.2d 145, 148

; Walker v. State (1993), 261 Mont. 1, 6, 862 P.2d 1, 4; and State v. Coates (1990), 241 Mont. 331, 336, 786 P.2d 1182, 1185. This "substantial evidence for findings and conclusions" standard of review is incorrect and should no longer be cited as the standard of review in post-conviction relief cases. To the narrow extent that Moorman, Walker, Coates, and other "substantial evidence" cases have applied this incorrect standard of review, they are overruled.

DISCUSSION
ISSUE 1

¶ 14 Was there sufficient evidence to support Porter's conviction of criminal endangerment?

¶ 15 The elements of the offense of criminal endangerment are enumerated in § 45-5-207(1), MCA (1997), which 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 endangerment.

¶ 16 In State v. Lambert (1996), 280 Mont. 231, 929 P.2d 846, we considered the meaning of the term "knowingly," with regard to the offense of criminal endangerment, and concluded that "the `knowingly' element of criminal endangerment contemplates a defendant's awareness of the high probability that the conduct in which he is engaging, whatever that conduct may be, will cause a substantial risk of death or serious bodily injury to another." Lambert, 280 Mont. at 237, 929 P.2d at 850. Porter contends that under the Lambert definition of "knowingly," the State failed to prove that he was aware of the high probability that his conduct on July 18, 1998, would cause a substantial risk of death or serious bodily injury to other campers at the Slate Creek campground. In support of his contention, Porter cites an excerpt from Justice Leaphart's concurring opinion in Lambert, which applied the Lambert definition of "knowingly" to a fictional situation.

¶ 17 Justice Leaphart's fictional situation in Lambert contemplates three men standing in a field, each holding a rifle. Lambert, 280 Mont. at 242, 929 P.2d at 853. Jones fires in the direction of an open field. Smith fires in the direction of a grove of trees. Unbeknownst to Smith, a house sits in the grove of trees. Finally, Johnson fires in the direction of a cluster of houses, which sit before him in plain view. Lambert, 280 Mont. at 242, 929 P.2d at 853. Justice Leaphart concluded that each man was aware of his conduct, i.e.,...

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