State v. Evans
| Decision Date | 14 February 1991 |
| Docket Number | No. 90-017,90-017 |
| Citation | 806 P.2d 512,48 St.Rep. 170,247 Mont. 218 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Owen Todd EVANS, Defendant and Appellant. |
| Court | Montana Supreme Court |
Edward G. Beaudette, Knight, Dahood, McLean and Everett, Anaconda, for defendant and appellant.
Marc Racicot, Atty. Gen., Elizabeth L. Griffing, Asst. Atty. Gen., Helena, A. Michael Salvagni, County Atty., Marty Lambert, Deputy County Atty., Bozeman, for plaintiff and respondent.
Owen Todd Evans appeals from his September 28, 1989, conviction of aggravated burglary, two counts of felony assault, and one count of felony theft by a jury sitting in the District Court of the Eighteenth Judicial District, Gallatin County. We affirm.
Evans presents the following issues:
1. Did the jury improperly find a "stun-gun" to be a weapon for purposes of aggravated burglary and felony assault?
2. Did the District Court err in failing to instruct the jury on the definition of a weapon under Montana law and on the lesser included offense of assault?
3. Was Evans subjected to double jeopardy by being convicted for both aggravated burglary and felony assault?
4. Did the District Court err in failing to exclude from evidence the contents of Evans' gym bag when it was shown to contain items not listed on the original inventory when the bag was seized?
5. Did the District Court err in allowing the testimony of William Kayser as an expert in the field of handwriting analysis and questioned document examination?
6. Was the sentence imposed by the District Court improper due to its scope and severity?
7. Did the District Court properly exclude Evans' parents, who were potential witnesses, from the courtroom?
On the night of March 2, 1989, Holly Engdahl, a student at Montana State University, was awakened in her bedroom by a man wearing a ski mask and gloves. The attacker told Engdahl to "shut up" and jabbed Holly repeatedly with a device later identified as a "stun gun," leaving burns on Engdahl's body. Engdahl also suffered bruises and a bloody nose in the attack.
The two struggled, and Engdahl broke free and ran to the basement of her condominium, where she tried the telephone, which was inoperable, and hid for a few minutes. When all was quiet, Engdahl came out of her hiding place. She then heard a noise and went to the gun cabinet. As Engdahl unlocked the gun cabinet, a bullet was fired from upstairs through the floor, striking the gun cabinet and the light switch. Engdahl grabbed a rifle from the gun cabinet and heard the front door shut. Carrying the rifle, she ran in her nightshirt and bare feet through snow to a neighbor's residence for help.
Engdahl thought that her assailant's voice sounded similar to that of a neighbor, Owen Evans, whom she had known for a number of years. Evans had sent Engdahl flowers and asked her for dates, which she refused after going out with him twice. Police searched Evans' condominium, one door down from Engdahl's residence. They seized several items demonstrating Evans' obsession with Engdahl, including a calendar noting when various people had come to her condominium. Police also seized a cassette tape of recorded phone conversations between Engdahl and other people and later discovered that Evans had tapped Engdahl's phone.
The police additionally seized a slide and barrel mechanism for a .45 caliber handgun, a box of instructions for a Defender Pro 40 stun gun, and battery chargers with a 9-volt rechargeable battery, the size necessary to operate the stun gun. Police also took a wallet containing forms of identification belonging to the defendant, cash, and credit cards.
When the police searched Evans' pickup truck, they discovered two loaded .45 caliber magazines and numerous rounds of .45 caliber ammunition.
On March 4, 1990, the police issued a warrant for Evans' arrest, and the next day his truck disappeared. One of Evans' credit card companies, contacted by police, notified them that Evans had used a credit card in Pocatello, Idaho. Pocatello police apprehended Evans who consented to a search of his truck. Police seized a gym bag containing 30 items, including a .45 caliber pistol frame and a Defender Pro 40 model stun gun. Evans later moved for suppression of the evidence contained in the gym bag on the ground that two items in the bag, two tubes of lubricant, were omitted in the inventory of its contents.
Police were able to piece together where Evans had hidden from the time of the attack until he left in his truck. Distinctive footprints led from Engdahl's condominium to condominium No. 34 owned by a woman who lived out of town. Evans' fingerprints were found on a light bulb and telephone in the condominium. Some items missing from condominium 34 were later found in Evans' possession. The police also seized a Ruger .44 caliber pistol taken from the gun case in Engdahl's condominium, a slide and barrel mechanism for a .45 caliber handgun, a black knit ski mask, and a pair of tennis shoes.
The cartridge casing taken from Engdahl's condominium matched the .45 receiver taken from Evans' truck in Pocatello and the barrel and slide found in condominium 34. The hairs found on the ski mask were substantially similar to those taken from Evans' head. The tennis shoes matched the prints in the snow leading from Engdahl's condominium to condominium 34.
The morning after the attack, Engdahl's automobile was discovered missing. Her car was later found in the garage for condominium 34. Plastic garbage bags had been stapled over the garage windows. Staples used to secure the garbage bags matched fired staples from a staple gun seized from Evans' condominium.
Evans presented no evidence at trial. He was found guilty of all four offenses with which he was charged. During the sentencing hearing, an expert testified that Evans was not suffering from amnesia as he had claimed, that he had a preoccupation with weaponry and methods of restraint, and that he showed indications that he was a sexual psychopath or sexual sadist.
The District Court imposed the following prison sentence on Evans:
1. Aggravated burglary: 40 years with an additional 10 years for use of a weapon, the stun gun.
2. Felony assault: 10 years with 10 additional years for use of the stun gun to be served concurrently with the above sentence.
3. Felony assault: 10 years with 10 additional years for firing a gun, to be served consecutively to the sentence imposed for counts one and two.
4. Felony theft: 10 years to be served consecutively to the sentences for counts one, two, and three.
The District Court designated Evans as a sexual offender to receive sexual offender treatment in Montana State Prison and ordered that Evans not be released for parole until he had satisfactorily completed such treatment. The court also declared Evans ineligible for parole for 25 years.
Did the jury improperly find a "stun-gun" to be a weapon for purposes of aggravated burglary and felony assault?
Owen Evans was convicted of one count of felony assault arising from the attack upon Holly Engdahl with an electric stun gun. The difference between misdemeanor assault and felony assault is whether a weapon is used to cause bodily harm:
(2) A person commits the offense of felony assault if he purposely or knowingly causes:
(a) bodily injury to another with a weapon;
(b) reasonable apprehension of serious bodily injury in another by use of a weapon; or
(c) bodily injury to a peace officer or a person who is responsible for the care or custody of a prisoner.
Section 45-5-202(2), MCA. A "weapon" is "any instrument, article, or substance which, regardless of its primary function, is readily capable of being used to produce death or serious bodily injury." Section 45-2-101(71), MCA. In turn, "serious bodily injury" is defined as follows:
"Serious bodily injury" means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ. It includes serious mental illness or impairment.
Section 45-2-101(59), MCA. Evans claims that the State did not show that a stun gun meets the statutory requirements of §§ 45-2-101(71) and (59), MCA, by demonstrating that a stun gun is capable of causing death, "substantial risk of death," or "protracted loss or impairment of the function or process of any bodily member or organ."
The test for sufficiency of the evidence with respect to a factual element of a crime is whether any rational trier of fact could have found that element beyond a reasonable doubt. State v. Earl (1990), 242 Mont. 279, ----, 790 P.2d 464, 465. The weapon produced burns on Engdahl's body, and Engdahl testified that she was burned by Further, the stun gun instructions admitted into evidence stated:
A short blast of 1/4 second duration will startle an attacker, cause minor muscle contractions and have a repelling effect.
A moderate length blast of 1 to 4 seconds can cause an attacker to fall to the ground and result in some mental confusion. It may make an assailant unwilling to continue an attack, but he will be able to get up almost immediately.
A full charge of 5 seconds can immobilize an attacker, cause disorientation, loss of balance, falling to the ground and leave them weak and dazed for some minutes afterward.
NOTE: Any blast lasting over 1 second is likely to cause your assailant to fall. If you do not help them down, gravity may injure them.
The instructions show that a stun gun is capable of immobilizing a person and could seriously injure a person who falls after being shocked by the gun.
Previously, instruments potentially less harmful than a stun gun have been found to be weapons. We have upheld the...
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