State v. Boyd
| Decision Date | 28 December 2021 |
| Docket Number | DA 19-0668 |
| Citation | 407 Mont. 1,501 P.3d 409 |
| Parties | STATE of Montana, Plaintiff and Appellee, v. Banner Lee BOYD, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Chad Wright, Appellate Defender, Koan Mercer, Assistant Appellate Defender, Helena, Montana
For Appellee: Austin Knudsen, Montana Attorney General, Brad Fjeldheim, Assistant Attorney General, Helena, Montana, Wyatt A. Glade, Custer County Attorney, Miles City, Montana
¶1 Defendant and Appellant Banner Lee Boyd (Boyd) appeals from the October 2, 2019 Judgment and Sentencing Order issued by the Sixteenth Judicial District Court, Custer County, which sentenced Boyd to 10 years at the Montana State Prison (MSP) for Assault on a Peace Officer and 80 years at MSP for Attempted Deliberate Homicide after he was convicted of both charges following a February 13-14, 2019 jury trial.
¶2 We address the following restated issues on appeal:
¶3 We reverse and remand.
¶4 On the evening of July 27, 2018, Boyd was drinking at the Olive Bar in Miles City. The bartender on duty asked the bar's owner, Jess Nelson (Nelson), to ask Boyd to leave. Nelson then approached Boyd and asked him to leave. Boyd was upset about being asked to leave the bar, and began a verbal altercation with Nelson which eventually spilled onto the street in front of the Olive Bar. From the patio of the bar, several patrons observed Boyd and Nelson's verbal altercation in the street.
¶5 The 5'6" Boyd repeatedly attempted to goad the approximately 6'5" Nelson into hitting him, calling him "baby boy" and telling him he had "one shot." Boyd also repeatedly started to walk away before returning to argue with Nelson some more. Finally, Boyd said to Nelson, Boyd, who lived in a second-floor apartment across the street, then walked away and went up the stairs to his apartment.
¶6 After Boyd walked away from the verbal altercation with Nelson, Miles City Police Officer Ryan Ketchum, who had been on a routine patrol when he noticed Nelson and Boyd arguing in the street, arrived on the scene and spoke to Nelson. Neither Nelson nor any of the bar patrons had called the police about the altercation. Officer Ketchum remained in his vehicle while Nelson, who he knew, leaned in and spoke with him. Nelson explained to Officer Ketchum that he had kicked Boyd out of the bar, that Boyd said he was going to return, and that Nelson thought Boyd was going to return with a weapon. While speaking to Officer Ketchum, Nelson saw Boyd on the second floor of his apartment building and motioned for Boyd to come down and speak to the officer.
¶7 Officer Ketchum then drove forward to speak to Boyd. Boyd came down the stairs of his apartment building while Nelson returned to the sidewalk in front of the Olive Bar. Officer Ketchum asked for Boyd's identification, which Boyd initially declined to give him as he wanted to go back to his apartment. Officer Ketchum would not allow Boyd to leave, however, so Boyd gave Officer Ketchum his identification. When Officer Ketchum went to radio in Boyd's information to dispatch, Boyd began "swatting" at Officer Ketchum's hands. Officer Ketchum pushed Boyd up against the wall of the apartment building and attempted to handcuff him. Boyd resisted and the two went to the ground. Nelson and a couple of the bar patrons, who had been watching from across the street, ran over to help Officer Ketchum. With Nelson's help, Officer Ketchum was able to subdue and handcuff Boyd. Officer Ketchum did a brief pat-down search but did not find any weapons.
¶8 While in handcuffs, Boyd continued to yell at Nelson, continuing to repeatedly call him "baby boy." Officer Ketchum attempted to walk Boyd to the patrol vehicle, but Boyd again struggled and the two went to the ground once more. Nelson again helped Officer Ketchum subdue Boyd, this time pressing Boyd's face into the pavement after Officer Ketchum told him to "[g]o ahead and do what you got to do." While his face was being pressed into the pavement by Nelson, Boyd shouted, "I surrender, I surrender." Boyd was then lifted from the ground and placed in the back seat of the patrol vehicle. While in the vehicle, Officer Ketchum again searched Boyd—this time discovering an approximately ten-inch kitchen knife Boyd had concealed in his pants. Boyd continued to call Nelson "baby boy" and yelled at him from the back of the patrol vehicle. Nelson asked Boyd what he was planning to do with the knife. Boyd answered, "[s]tab you in the heart." Nelson responded, "[g]ood, that's what I thought."
¶9 On August 16, 2018, Boyd was charged by Information with one felony count of Assault on a Peace Officer and one felony count of Attempted Deliberate Homicide. In addition, the State asked for a weapons enhancement on the Attempted Deliberate Homicide charge. The matter ultimately went to a jury trial on February 13-14, 2019. The original Information stated the incorrect penalty for Assault on a Peace Officer, so the State filed an Amended Information correcting the error on the morning of the first day of trial. At trial, the jury heard testimony during the State's case-in-chief from Nelson, Jeremy Smith, Amanda Desjarlais, and four officers with the Miles City Police Department—Officer Coy Sheets, Lieutenant Dan Baker, Officer Ketchum, and Captain Casey Prell. At the close of the State's case, Boyd moved to dismiss the attempted deliberate homicide charge for lack of sufficient evidence. The District Court denied Boyd's motion, finding the State presented sufficient evidence Boyd committed the offense of attempted deliberate homicide for the matter to go to the jury. Boyd then took the stand and testified in his own defense.
¶10 After deliberation, the jury convicted Boyd on both the assault on a peace officer and attempted deliberate homicide charges, but found Boyd did not "knowingly display[ ], brandish[ ], or otherwise use[ ] a dangerous weapon" when committing the offense of attempted deliberate homicide. At the sentencing hearing on October 1, 2019, the District Court sentenced Boyd to 10 years at MSP for Assault on a Peace Officer and 80 years at MSP for Attempted Deliberate Homicide, with no time suspended on either charge. In addition, the District Court orally imposed supervision conditions in the event of Boyd's release:
In its October 2, 2019 Judgment and Sentencing Order, however, the District Court stated it was "recommend[ing]" the PSI and medication conditions if Boyd was paroled, not imposing them as it previously stated during the sentencing hearing.
¶11 Boyd appeals. Additional facts will be discussed as necessary below.
¶12 We review a district court's denial of a motion to dismiss a criminal charge for insufficient evidence de novo. State v. McAlister , 2016 MT 14, ¶ 6, 382 Mont. 129, 365 P.3d 1062 (citing State v. Swann , 2007 MT 126, ¶¶ 18-19, 337 Mont. 326, 160 P.3d 511 ). Whether sufficient evidence exists to convict a defendant is also reviewed de novo. State v. Gunderson , 2010 MT 166, ¶ 58, 357 Mont. 142, 237 P.3d 74 (citing Swann , ¶ 19 ). "The standard of review of sufficiency of the evidence on appeal is whether, upon 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." Gunderson , ¶ 58 (citing State v. Fish , 2009 MT 47, ¶ 27, 349 Mont. 286, 204 P.3d 681 ).
¶13 We review criminal sentences for legality. State v. Coleman , 2018 MT 290, ¶ 4, 393 Mont. 375, 431 P.3d 26. A sentence is legal if it falls within the statutory parameters. State v. Clark , 2008 MT 112, ¶ 8, 342 Mont. 461, 182 P.3d 62.
¶14 1. Was there sufficient evidence presented to convict Boyd of attempted deliberate homicide?
¶15 "A person commits the offense of attempt when, with the purpose to commit a specific offense, the person does any act toward the commission of the offense." Section 45-4-103(1), MCA. "A person commits the offense of deliberate homicide if ... the person purposely or knowingly causes the death of another human being[.]" Section 45-5-102(1)(a), MCA.
¶16 In this case, Boyd was charged with, and convicted of, attempted deliberate homicide. While this is a weighty charge, the facts of the case are straightforward. Boyd, upset at being kicked out of the Olive Bar by Nelson, got into a verbal altercation with Nelson which spilled out into the street. Boyd repeatedly tried to antagonize Nelson into a physical fight, which Nelson declined. Eventually, Boyd walked away and went up to his apartment across the street, where he retrieved a large kitchen knife and placed it down his pants. When Boyd left his second-floor apartment, Nelson was speaking with Officer Ketchum in the street. Nelson beckoned Boyd down to speak with Officer Ketchum, so Boyd came down the stairs to meet Officer Ketchum.1 Boyd was subsequently arrested and the kitchen knife was found once he was placed into the patrol vehicle. While Boyd was handcuffed in the back of the patrol vehicle, Nelson asked...
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