State v. Cesnik

CourtUnited States State Supreme Court of Montana
Citation2005 MT 257,122 P.3d 456
Docket NumberNo. 04-573.,04-573.
PartiesSTATE of Montana, Plaintiff and Respondent, v. Robert Anthony CESNIK, Sr., Defendant and Respondent.
Decision Date19 October 2005
122 P.3d 456
2005 MT 257
STATE of Montana, Plaintiff and Respondent,
Robert Anthony CESNIK, Sr., Defendant and Respondent.
No. 04-573.
Supreme Court of Montana.
Submitted on Briefs August 10, 2005.
Decided October 19, 2005.

Page 457

For Appellant: Sean D. Hinchey, Hinchey & Hinchey, Kalispell, Montana, Steinbrenner & Binney, P.C., Missoula, Montana.

For Respondent: Mike McGrath, Attorney General; Jim Wheelis, Assistant Attorney General, Helena, Montana, Ed Corrigan, County Attorney; Katie Schulz, Deputy County Attorney, Kalispell, Montana.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

¶ 1 Subsequent to a trial by jury, the Montana Eleventh Judicial District Court, Flathead County, convicted Robert Anthony Cesnik, Sr., of felony assault with a weapon. The court sentenced Cesnik to the Montana State Prison for a term of ten years with six of those years suspended. Cesnik appeals on two grounds. First, he argues that the District Court incorrectly admitted testimony at trial referencing offensive phrases displayed on Cesnik's truck and clothing. Second, Cesnik argues that the District Court improperly based the sentence on negative inferences

Page 458

drawn from his silence at the sentencing hearing. We affirm and reverse.

¶ 2 We restate the issues as follows:

¶ 3 1. Whether the District Court correctly admitted evidence of phrases on Cesnik's truck and clothing.

¶ 4 2. Whether the District Court imposed a legal sentence when it based Cesnick's punishment, in large part, on his refusal to accept responsibility and show remorse.


¶ 5 The weekend of July 26, 2003, the Flathead Valley Clay Target Club, a trap shooting club, sponsored a three-day registered shoot, sanctioned by the American Trapshooters Association (ATA) and the Montana State Trapshooters Association (MSTA). During the event, Robert Cesnik, Sr., became upset over a discrepancy involving a shoot his son won on Friday. Cesnik believed the club unfairly required his son to participate in a re-shoot because of a complaint filed by Keith Brian Sipe — a complaint Cesnik contends did not conform with ATA laws. On Saturday morning, Cesnik walked into the club and engaged in a verbal altercation with Sipe. Cesnik then exited the building and, according to witnesses, retrieved his shotgun from the shotgun rack, loaded it with what appeared to be a live round, closed the shotgun and motioned for Sipe to come outside. Some time after the incident, Sipe notified police, resulting in the State charging Cesnik with the crime of assault with a weapon.

¶ 6 Throughout proceedings, Cesnik maintained his innocence, arguing that by the time he exited the building, he had begun focusing on his shoot and was not threatening Sipe. Consistent with his position regarding the events that transpired, Cesnik pled not guilty and requested a trial by jury. Cesnik filed a motion in limine prior to trial requesting that the court preclude any argument or testimony regarding inflammatory writings or expletives appearing on Cesnik's truck and clothing. Cesnik's truck contained writings that stated "Fuck Liberals," but with the "F" reversed so that it apparently read, "Puck Liberals" (as in a hockey puck). His truck also contained the wording "pro-gun," and a phrase with a Spanish expletive — "chinga Calif. Liberals." Cesnik had also worn clothing with similar phrases. Because some club members objected to the visibility of such language on Cesnik's truck when parked in the club's lot, the board asked him to lower his tailgate and back in when attending the club. Cesnik complied with this request.

¶ 7 Cesnik filed a motion in limine to bar reference to these phrases at trial, arguing that the language on his truck and clothing had no relevance to the charges to be tried and that the introduction of such evidence created an unfair prejudice. The District Court did not rule on the motion in limine. During the two-day trial, Cesnik repeatedly objected to the State's attempts to solicit testimony regarding the language on his truck and clothing. Eventually, the court admitted the evidence during the testimony of Rick L. Craig, vice-president of the club. During direct examination of Craig by Cesnik's attorney, the following exchange took place:

Cesnik's Attorney: Okay. As a board member, do you know whether Mr. Sipe has been interested in getting Mr. Cesnik banned from the trap club?

Craig: Oh, I think there was definitely an interest on Mr. Sipe's part to have Bob removed.

Cesnik's Attorney: Has Mr. Cesnik ever been banned from your trap club?

Craig: No.

The State then cross-examined Craig:

State: You mentioned a discussion to possibly ban Mr. Cesnik from the gun club. That was a general discussion among several of the club members, correct?

Craig: I don't know what "several of the club members" means, but there was a discussion amongst a few of them.

State: And this has to do with different behaviors the Defendant has engaged in?

Craig: Yes.

State: Are they offensive behaviors?

Craig: In my opinion, no.

Page 459

State: In the opinion of some of the other club members?

Cesnik objected to this questioning of Craig by the State:

Cesnik's Attorney: Objection, he can't testify to the opinions of other club members."

Court: No, you asked him if — whether or not there was definitely an interest in Mr. Sipe — in having the Defendant removed from the trap club, and the State's entitled to inquire as to a basis for that. The door's been opened for that purpose, so the objection is overruled.

The State then proceeded to ask the witness specifically whether Cesnik's truck and clothing contained the phrases "fuck Californians, fuck liberals."

¶ 8 Cesnik testified at trial, maintaining his innocence regarding the offense charged. When asked by his attorney if he picked up his weapon to threaten Sipe, Cesnik responded, "No, sir," explaining that he picked up his weapon in order "[t]o proceed to the practice trap to shoot a round." At the end of the two-day trial, a jury found Cesnik guilty of assault with a weapon.

¶ 9 Prior to sentencing, the Department of Corrections, Office of Probation and Parole, prepared a presentence report. When interviewing Cesnik for the report, the probation officer asked Cesnik to provide his thoughts on how the court should proceed with his sentence. Cesnik responded: "I'm not being a smart-ass, my charges should be dropped."

¶ 10 While Cesnik testified at trial, he chose not to speak at the sentencing hearing. Cesnik's counsel did not invoke Cesnik's right to remain silent; nor did the District Court comment on his silence. After hearing testimony, the court stated the basis for its sentencing decision, in significant part, reflected its concern over Cesnik's tendency toward violent outbursts, and his continued denial and lack of remorse for such incidences.

[T]he Court has concern at page 4 of the presentence report where the Defendant is asked to give his own statement: "In your own words what did you do to get arrested on this charge?" And quoting the Defendant — this isn't my language — he, Cesnik, "I called Brian Sipe a motherfucker." That's not what he was convicted of, and that's not what the evidence indicated he did. He did do that, but that's not why we're here. . . .

And in further — giving rise to further concern as to a lack of acceptance of responsibility, when the officer, through this report, asked Mr. Cesnik, the Defendant, to give his recommendation as to what the Court should do, he says, "I'm not being a smart-ass, my charges should be dropped." This is after he has been convicted of threatening a person with a loaded shotgun.

. . . .

These are concerns that the court has. Refusal to accept responsibility is a big one. . . . [W]ithout remorse and acceptance of responsibility, you cannot have rehabilitation, it doesn't happen.

And the record will reflect the Judge agrees.

There is evidence here of a history of violence. As I have indicated, remorse is important. There is none here. A purpose in sentencing in the State of Montana is — it's many-fold, the Court must try to promote rehabilitation, it must impose a sanction for the behavior that the Defendant has been convicted of engaging in, it must consider protection of society. And what is contemplated here is...

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