State v. Mackrill, CA 06-0728.

Citation191 P.3d 451,2008 MT 297
Decision Date20 August 2008
Docket NumberNo. CA 06-0728.,CA 06-0728.
PartiesSTATE of Montana, Plaintiff and Appellee, v. Jason Tyler MACKRILL, Defendant and Appellant.
CourtUnited States State Supreme Court of Montana

For Appellant: Jim Wheelis, Chief Appellate Defender, David Avery, Assistant Appellate Defender, Helena, Montana.

For Appellee: Hon. Mike McGrath, Montana Attorney General, John Paulson, Assistant Attorney General, Helena, Montana, Brett Linneweber, Park County Attorney, Livingston, Montana.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Jason Tyler Mackrill appeals from his conviction in the District Court for the Sixth Judicial District, Park County, of aggravated assault. We affirm.


¶ 2 Mackrill visited a number of bars in Livingston, Montana, during the evening of October 23, 2005. He entered the Whiskey Creek Saloon at around 9:30. The bartender, Lori Munro, observed that he appeared to be intoxicated. According to Munro, Mackrill staggered around the bar for awhile and then walked up to two patrons, ordered a drink for one, and turned to the other and began to pick a fight. At that point, Munro ordered Mackrill to leave, and he did so. Roughly an hour later, Mackrill poked his head in the door of the bar but then turned around and left.

¶ 3 A similar scenario occurred at the Murray Bar. The bartender, Christina Gillespie, observed that Mackrill was intoxicated, and Mackrill indicated to Gillespie that he did not know where he was. Gillespie refused to serve Mackrill alcohol and instead gave him a glass of water and told him that he could sober up there for a little while. According to Gillespie, Mackrill initially was polite, but he eventually began "misbehaving" and became upset that Gillespie would not serve him alcohol. Mackrill walked up to a woman sitting at the bar and got into an argument with her. Gillespie asked the woman if Mackrill was bothering her, and the woman replied that he was. So, Gillespie asked Mackrill to leave. Mackrill later returned to the bar, insisting that he had left his jacket there, but Gillespie informed him that there was no jacket in the bar and that she would call the police if he entered again. Mackrill lingered outside the bar for awhile peering through the window.

¶ 4 Mackrill also visited the Mint Bar two or three times that evening, where he eventually got into the altercation at issue in this case. According to Dan Connelley, a patron at the Mint Bar who noticed Mackrill during these visits, Mackrill was "beyond intoxication" and was trying to pick fights. Mackrill was asked to leave the bar at around 7:30, and he did so; but when he returned at around midnight and the bartender, Kaylene Little, asked him to leave, Mackrill became obstinate and argumentative. In Connelley's view, Mackrill "just wouldn't comprehend that it was time for him to leave" and "that they were going to call the cops."

¶ 5 Mackrill eventually approached Connelley, who had been chatting with a friend, Robert Gluesing. Mackrill positioned himself between Connelley and Gluesing and asked Connelley for a drink. Gluesing offered Mackrill a couple of dollars and suggested that he get a drink someplace else, since Little was unwilling to serve him. At this point, Little again ordered Mackrill to leave; and when he refused to do so, she picked up the phone to call the police. Gluesing attempted to persuade Mackrill to leave, but Gluesing ended up escorting Mackrill out the door.

¶ 6 Meanwhile, Jeremy Shields, the operator of the Sport Bar located half a block from the Mint Bar, was standing outside of the Sport Bar talking on the phone when he observed two men (Mackrill and Gluesing) exit the Mint Bar. Shields observed that "they had their hands on each other" and that "it looked like there was a scuffle going on." Shields called two of his friends in the Sport Bar, Nate Ousley and Jory Mitchell, to come out and witness the commotion. Shields saw Mackrill, whom Shields characterized as "larger" and "thicker" than Gluesing, hit Gluesing several times, including a "very solid shot" that caused Gluesing's feet to come off the ground and the back of his head to hit the pavement. According to Shields, the sound of Gluesing's head hitting the pavement "sounded like a pumpkin breaking." Mitchell noted that prior to the final punch, Gluesing's hands were down and he was basically "sleeping on his feet." After Gluesing hit the ground, Mitchell contacted 911 to report the incident.

¶ 7 Livingston City Fire and Rescue responded to the scene and found Gluesing unconscious in the street. Gluesing was bleeding from the back of his head and from his right ear and was unresponsive. He was transported to Livingston Memorial Hospital, where he was treated for head injuries, including a skull fracture. Gluesing's blood-alcohol concentration was .246. He remained in the hospital for about a week to receive treatment for his injuries.

¶ 8 Livingston Police Department Officers Jerry Harmon and Joseph Harris also responded to the emergency call. After arriving at the scene, they checked on Gluesing's condition and gathered information about the assailant from witnesses. Officer Harris then set out to search for Mackrill. Harris eventually made contact with Mackrill and observed that although he was able to give his name, date of birth, and social security number, Mackrill appeared to be highly intoxicated and confused. Harris placed Mackrill under arrest and transported him to the police station, where the officers conducted a voluntary videotaped interview with Mackrill.

¶ 9 On November 17, 2005, the State charged Mackrill with one count of aggravated assault, a felony, in violation of § 45-5-202, MCA. Mackrill pleaded not guilty to the charge. Thereafter, he filed a Notice of Affirmative Defenses, in which he stated that he would be arguing consent at trial (i.e., that Gluesing had consented to the fight and that Mackrill, therefore, was not guilty of the charge).

¶ 10 Trial commenced on April 13, 2006. Following opening statements, defense counsel made a motion to exclude any questions or testimony regarding the fact that Mackrill had been asked to leave several of the bars he visited on October 23, 2005, due to disorderly conduct. Counsel argued that such evidence would be prejudicial and that it was inadmissible under M.R. Evid. 404(b). The prosecutor responded that evidence of the events which occurred before, during, and after the offense was committed was relevant and admissible under the transaction rule. See § 26-1-103, MCA. The court agreed with the State and denied Mackrill's motion, explaining: "I think it's part of res gestae, which is a transaction rule, both before and after." The court also indicated, albeit not explicitly, that the evidence was not unfairly prejudicial.

¶ 11 Mackrill's trial proceeded, and the jury heard testimony from several witnesses, including Connelley, Gluesing, and a number of the bartenders on duty the evening of October 23. On the second day of trial, the issue arose as to whether the State could introduce the videotape of Mackrill being interviewed at the police station after his arrest. Mackrill objected "to any presentation, whatsoever," of the video on the grounds that its prejudicial value outweighed its probative value and that it was cumulative of earlier testimony. The District Court agreed that portions of the taped interview were unduly prejudicial. Thus, the court ordered the prosecution to edit out any references to Mackrill's criminal record, tattoos, and violent tendencies. The prosecutor edited the tape and then moved to admit it at trial, at which point Mackrill reiterated his objection that the video was cumulative. The court overruled the objection.

¶ 12 The jury ultimately found Mackrill guilty as charged. Thereafter, Mackrill filed a post-trial motion requesting that the court, pursuant to § 46-16-702, MCA, "find him not guilty of Aggravated Assault, or in the alternative, guilty of the lesser included offense of Misdemeanor Assault." Mackrill argued that the State had "failed to introduce evidence upon which the jury could conclude that Robert Gluesing did not consent to the October 24, 2005 bar fight" and had "failed to introduce evidence upon which the jury could conclude that Robert Gluesing, by reason of intoxication, was unable to make a reasonable judgment as to the nature or harmfulness of the bar fight." The District Court held a hearing and denied the motion. The court reasoned that the jury had been properly instructed on the law and had heard the facts and that the court was not permitted under the circumstances to substitute its judgment for that of the jury. Mackrill now appeals.


¶ 13 We restate the issues on appeal as follows:

1. Did the District Court err in denying Mackrill's motion for a new trial?

2. Did the District Court err in admitting evidence concerning Mackrill's conduct before and after the altercation with Gluesing?

3. Does Mackrill's conviction violate due process?


¶ 14 Issue 1. Did the District Court err in denying Mackrill's motion for a new trial?

Mackrill's Contentions

¶ 15 We begin with Mackrill's sufficiency-of-the-evidence claim, as it provides context for our discussion of the evidentiary issues under Issue 2. As noted, Mackrill filed a post-trial motion contending that the State had failed to present evidence sufficient to prove two matters: (1) that Gluesing did not consent to the assault, and (2) that Gluesing, by reason of intoxication, was unable to make a reasonable judgment as to the nature or harmfulness of the assault. Mackrill asked the District Court either to find him not guilty of aggravated assault or to find him guilty of the lesser offense of misdemeanor assault.

¶ 16 We note that Mackrill captioned his motion as one for "judgment notwithstanding the verdict." On appeal, he refers to the...

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