State v. Fleming, DA 17-0273
Citation | 397 Mont. 345,449 P.3d 1234,2019 MT 237 |
Decision Date | 07 October 2019 |
Docket Number | DA 17-0273 |
Parties | STATE of Montana, Plaintiff and Appellee, v. Robert Joseph FLEMING, Defendant and Appellant. |
Court | United States State Supreme Court of Montana |
For Appellant: Gregory D. Birdsong, Birdsong Law Office, PC, Missoula, Montana
For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana, Ben Krakowka, Deer Lodge County Attorney, Ellen Donohue, Deputy County Attorney, Anaconda, Montana
¶1 An Anaconda-Deer Lodge County jury found Robert Joseph Fleming guilty of criminal endangerment after he purchased a half-gallon of 80-proof whiskey for a teenager who drank it and suffered near-fatal consequences. Fleming raises the following issues on appeal:
¶2 We reverse on Issue Two and remand for a new trial.
¶3 Sometime between January 5 and January 9, 2016, eighteen-year-old James J. Zenahlik, IV ("J.J.") contacted a man he knew as "Robby" on his cell phone to ask him to purchase a half-gallon of Northern Lights whiskey. Northern Lights whiskey is 80-proof, or 40% alcohol by volume. J.J. had Robby's cell phone number saved as "Robby B" in his contacts. J.J. did not know Robby's last name at the time, but he testified that the "B" meant Robby was someone who would buy alcohol for him. J.J. testified that he drove to Robby's house, picked Robby up, and drove him to the Anaconda Liquor Store. J.J. parked and gave Robby $20 for the whiskey. Robby returned with the liquor in a bag inside of his jacket. He put the bag down on the floorboard behind J.J.'s seat. J.J. gave Robby a couple of dollars and drove him home. As Robby exited the car, he told J.J. to "be safe" and "have a good one." When J.J. got to the house that he shared with his father, James J. Zenahlik, III ("James"), he placed the bottle of whiskey in the trunk of his car so that no one would see it.
¶4 On January 10, J.J. began drinking the whiskey. James checked on J.J. the next morning and was unable to wake him. James called an ambulance, and J.J. was taken to the Anaconda hospital where he had an alcohol level of approximately .584. J.J. was intubated and flown to a Missoula hospital for treatment. When J.J. returned home after a few days in the hospital, he found the bottle of whiskey, empty, in the trunk of his car. After J.J. identified Fleming as the person who bought the whiskey for him, Fleming was charged with criminal endangerment in violation of § 45-5-207(1), MCA.
¶5 Prior to trial, the State gave notice of its intent to offer evidence of Fleming's 2001 conviction of criminal endangerment after he provided alcohol to two teenaged girls who drank it and were involved in a serious car crash. One of the girls did not survive. The State argued that the evidence was relevant and admissible to show Fleming's knowledge of the "very real potential consequences of underage drinking" and that he "understood the potential gravity of his actions." Fleming responded that the 2001 incident was too remote in time to be relevant for the purposes the State argued and that "[s]uch a grim set of facts is inherently prejudicial to the defendant." Fleming urged the court to keep the evidence out because it would distract the jury from the task of weighing the other evidence, and its prejudice could not be overcome by a curative instruction. Following a hearing in open court, the District Court overruled Fleming's objection.
¶6 The District Court read the following instruction to the jury panel prior to voir dire :
¶7 The court reminded the jury in its final instructions at the close of trial that it had taken judicial notice of Fleming's prior crime solely for the purpose of showing knowledge and that the jury could not consider it for any other purpose.
¶8 The jury found Fleming guilty of criminal endangerment. Fleming moved the District Court to set aside the verdict and enter judgment for acquittal "based on the State's failure to prove." The court denied the motion.
¶9 We review de novo claims of insufficient evidence. State v. Bekemans , 2013 MT 11, ¶ 18, 368 Mont. 235, 293 P.3d 843. We review evidentiary rulings for an abuse of discretion. A trial court abuses its discretion if it acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice. State v. Passmore , 2010 MT 34, ¶ 51, 355 Mont. 187, 225 P.3d 1229.
¶10 1. Whether the District Court should have set aside the verdict and entered an acquittal because the State did not prove the risk requirement of § 45-5-207, MCA.
¶11 After the jury returned its verdict and was released, the District Court asked the parties if there were any post-trial motions. Fleming moved the court to set aside the verdict and rule an acquittal for Fleming "based on the State's failure to prove." Fleming offered no argument, and the State did not wish to be heard on the matter. The District Court denied the motion, holding that it was a triable case and "that the jury had plenty to work with to determine that all the elements of the crime of Criminal Endangerment were committed by [Fleming]."
¶12 We review a question on the sufficiency of the evidence to determine whether, after reviewing the evidence in a 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. Yuhas , 2010 MT 223, ¶ 7, 358 Mont. 27, 243 P.3d. 409. It is within the province of the jury to weigh the evidence based on the credibility of the witnesses and to determine which version of events should prevail. State v. Weigand , 2005 MT 201, ¶ 7, 328 Mont. 198, 119 P.3d 74. We therefore review a jury's verdict to determine whether sufficient evidence exists to support the verdict, not whether the evidence could have supported a different result. Weigand , ¶ 7.
¶13 A person commits the offense of criminal endangerment when he "knowingly engages in conduct that creates a substantial risk of death or serious bodily injury to another." Section 45-5-207(1), MCA. The criminal endangerment statute does not require the victim to suffer actual physical injury. It requires only that the defendant engage in conduct that creates a substantial risk of death or serious bodily injury. State v. Crisp , 249 Mont. 199, 204, 814 P.2d 981, 984 (1991). A person acts knowingly for the purposes of criminal endangerment when the person is aware "of the high probability that the conduct in which he is engag[ed] ... will cause a substantial risk of death or serious bodily injury to another." State v. Lambert , 280 Mont. 231, 237, 929 P.2d 846, 850 (1996) ; see also §§ 45-2-101(35) and 45-5-207(1), MCA. "[T]he term substantial risk [of death or serious bodily injury] warns a person of ordinary intelligence that if he engages in conduct that could result in a real possibility of loss or injury ... he could be found guilty of the crime of criminal endangerment." Crisp , 249 Mont. at 204, 814 P.2d at 984.
¶14 We have held that the mental state required for criminal endangerment is the defendant's awareness of the high probability of substantial risk posed by his conduct. See, e.g. , State v. Bekemans , 2013 MT 11, ¶ 21, 368 Mont. 235, 293 P.3d 843 ( ); State v. G'Stohl , 2010 MT 7, ¶ 15, 355 Mont. 43, 223 P.3d 926 (...
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