State v. Finley

• Decision Date: 26 April 2011
• Docket Number: No. DA 10–0416.,DA 10–0416.
• Citation: 360 Mont. 173,252 P.3d 199,2011 MT 89
• Parties: STATE of Montana, Plaintiff and Appellant,v.John Shannon FINLEY, Defendant and Appellee.
• Court: Montana Supreme Court

360 Mont. 173

252 P.3d 199

2011 MT 89

STATE of Montana, Plaintiff and Appellant,

v.John Shannon FINLEY, Defendant and Appellee.

No. DA 10–0416.

Supreme Court of Montana.

Submitted on Briefs March 29, 2011.Decided April 26, 2011.

For Appellant: Steve Bullock, Montana Attorney General; John Paulson, Assistant Attorney General, Helena, Montana, Leo J. Gallagher, Lewis and Clark County Attorney, Mary Cochenour, Deputy County Attorney, Helena, Montana.For Appellee: Joslyn Hunt, Chief Appellate Defender; Matthew Wilcox, Assistant Appellate Defender, Helena, Montana.Chief Justice MIKE McGRATH delivered the Opinion of the Court.

[360 Mont. 174] ¶ 1 The State of Montana appeals an order of the District Court, First Judicial District, Lewis and Clark County, reversing John Finley's (Finley) conviction for partner or family member assault, entered in a Justice Court of record. We reverse and remand for further proceedings.

ISSUES

¶ 2 On appeal, the State raises the issue of whether the evidence presented to establish reasonable apprehension of bodily injury was sufficient to support Finley's conviction for partner or family member assault.

¶ 3 Finley raises the issue of whether the State's appeal is precluded by law.

BACKGROUND

¶ 4 At 1:41 a.m., on April 4, 2009, Debbie Finley made a 911 call to the Lewis and Clark County dispatch center. She placed the call from her cellular telephone after she fled her house by sneaking out of the back door. Breathless and audibly crying, Debbie told the dispatcher that her husband, Finley, had come home drunk and was trashing the place. She claimed that Finley blamed her for the recent arrest of their older son. She expressed fear for her ten-year-old son and mother, who were still asleep at the residence. The dispatcher asked if Finley had hurt anyone. Debbie responded, “He's trying to hurt me .... He's telling me he's going to crush my fucking head in, and stuff like that.” She told the dispatcher that she was cold, because she had fled without shoes and was wearing only a tee-shirt and pajama pants.

¶ 5 Initially, Debbie ran to a Montana Lil's Casino, down the street from her house. At one point during the 911 call, she became agitated when she thought she saw Finley walking towards the casino. The dispatcher convinced Debbie to proceed to the nearby Town Pump and wait for the police. Once there, Debbie informed the dispatcher that she had positioned herself away from the windows and refused to look outside. Ultimately, the dispatcher managed to coax Debbie to look outside and confirm that the police had arrived. During the eight-minute 911 call, Debbie repeatedly asked where the officers were and how soon they would reach her.

¶ 6 Reserve Officer Phil Richards, of the East Helena Police Department, was the first to arrive at the Town Pump. He encountered Debbie as she exited the building. She was shaking, hesitant to speak and exhibited redness around the eyes. Debbie informed Richards that she and her husband had a disagreement. Richards later testified that he was surprised that Debbie lacked shoes and was clad in only pajamas.

¶ 7 Next to arrive was Lewis and Clark County Sheriff's Deputy Eric Gilbertson. He testified that Debbie was emotionally upset, shaking and nervous. Gilbertson confirmed that Debbie was underdressed for the weather and estimated the temperature was between 20 and 30 degrees.

¶ 8 Third to arrive was Lewis and Clark County Sheriff's Deputy Matt Reighard. He too observed that Debbie was underdressed, nervous, afraid, and emotionally distressed. Debbie told Reighard that she probably would not be alive had she not left the house when she did. She further expressed fear that Finley had pursued her after she fled. Additionally, she repeated the story she told to the 911 dispatcher and again expressed concern for her son and mother.

¶ 9 Reighard accompanied Debbie back to the residence. She remained in his patrol vehicle while he checked the house for Finley. During his sweep of the premises, Reighard visually confirmed that the damage was consistent with Debbie's story. After failing to locate Finley, Reighard returned to his vehicle. There, Debbie informed him she might have just seen Finley. Out of fear of remaining at her house, Debbie accompanied Reighard as he searched the neighborhood. The search proved unsuccessful.

¶ 10 Reighard and Debbie returned to her residence, where Debbie provided a written statement of the night's events. Reighard took photographs of the damaged closet, and the broken floor heater. He also photographed blood on the wall, which Debbie claimed was the result of Finley punching something. Additionally, Reighard found and photographed footprints in the fresh snow outside of the back door, heading towards the Town Pump. The footprints were too large to belong to Debbie and were made by someone wearing shoes. The deputy then left the residence and continued to search for Finley. Out of fear of remaining at home that night, Debbie called a friend to come get her, her son and her mother. Ultimately, the officers were unable to locate Finley, and the case was referred to the Lewis and Clark County Attorney's Office.

¶ 11 Finley was charged with partner or family member assault, second offense. A bench trial was held on October 29, 2009. Debbie, Reighard, Gilbertson and Richards were all called as witnesses.

¶ 12 At trial, Debbie testified that many of her statements on April 4, 2009, were lies. She admitted calling 911, but claimed she fabricated the story so the police would remove Finley from her house. When asked why she would do this, Debbie responded that she disliked when Finley was drunk, because her father had been an alcoholic. She acknowledged that Finley yelled at her and blamed her for the trouble with their older son but denied he used violence or threats. She asserted that the door and heater had been in disrepair prior to April 4, and the blood was from a previous incident. She testified that she took advantage of these pre-existing conditions to strengthen her story to the police.

¶ 13 Furthermore, Debbie claimed she had never said that Finley wanted to crush her head. Alternatively, she asserted that if she had said something to that effect, it had been a lie. She claimed that she rarely wore shoes, and she had made a voluntary decision to leave her house wearing only pajamas. When the prosecutor asked Debbie about all of the inconsistent statements, Debbie responded that she would rather lie to the police than lie in court.

¶ 14 Finley was found guilty of partner or family member assault. The Lewis and Clark County Justice Court of record found Debbie's testimony to be unbelievable. It further found her to be a less than credible witness because her assertions were contradicted by all of the physical evidence and the 911 recording. Pursuant to § 46–17–311(1), MCA, Finley appealed to the District Court of Lewis and Clark County. He argued that the State had presented insufficient evidence, and the prosecutor had engaged in misconduct.

¶ 15 On August 11, 2010, the District Court reversed the Justice Court. As provided in § 3–10–115(1), MCA, the District Court did not conduct a new trial, but rather confined its review to the record and questions of law. It concluded the evidence was insufficient to support Finley's conviction. The District Court explained that Debbie was the only witness capable of establishing the element of reasonable apprehension of bodily injury. The District Court then reasoned that the State had failed to establish Debbie's reasonable apprehension of bodily injury because her testimony “was found by the trier of fact to be inherently incredible.” Because the District Court reversed the conviction based upon evidentiary insufficiency, it did not address Finley's allegation of prosecutorial misconduct.

¶ 16 On August 31, 2010, the State filed notice of appeal to this Court. In response, Finley filed a motion to dismiss, arguing the State's appeal was unauthorized. On January 4, 2011 this Court denied Finley's motion to dismiss and allowed the State's appeal to proceed.

STANDARDS OF REVIEW

¶ 17 When a district court acts in an appellate capacity, we review to determine whether the district court reached the correct conclusions under the appropriate standards of review. Stanley v. Lemire, 2006 MT 304, ¶ 26, 334 Mont. 489, 148 P.3d 643.

¶ 18 We review an appeal concerning evidentiary sufficiency to determine whether, when viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the required elements of the offense beyond a reasonable doubt. State v. Gunderson, 2010 MT 166, ¶ 58, 357 Mont. 142, 237 P.3d 74.

¶ 19 Our review of constitutional questions is plenary. State v. Brooks, 2010 MT 226, ¶ 11, 358 Mont. 51, 243 P.3d 405.

DISCUSSION

¶ 20 Whether the State's appeal is precluded.

¶ 21 As a threshold matter, we address Finley's contention that the State's appeal is barred. Generally, the State may not appeal in criminal cases. Section 46–20–103(1), MCA. However, there are exceptions to this rule, including when a lower court's order or judgment substantively results in the dismissal of a case, or modifies or changes a verdict. Section 46–20–103(2), MCA. We conclude that the State's appeal is authorized.

¶ 22 First, Supreme Court precedent permits the State's appeal, without offending the Double Jeopardy Clause of the United States Constitution. In a bench trial, jeopardy attaches “when the judge begins to receive evidence.” U.S. v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977); accord State v. Barron, 2008 MT 69, ¶ 14, 342 Mont. 100, 179 P.3d 519. When a governmental appeal does not threaten a defendant with successive prosecutions, the Double Jeopardy Clause is not offended. United States v. DiFrancesco, 449 U.S. 117, 132, 101 S.Ct. 426, 435, 66 L.Ed.2d 328 (1980). In Smith v....