State v. Matson
| Decision Date | 04 June 1987 |
| Docket Number | No. 86-471,86-471 |
| Citation | 227 Mont. 36,736 P.2d 971,44 St.Rep. 874 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Dan Louis MATSON, Defendant and Appellant. |
| Court | Montana Supreme Court |
Cannon & Sheehy; Edmund F. Sheehy, Jr., Helena, for defendant and appellant.
Mike Greely, Atty. Gen., Helena, John Paulson, Asst. Atty. Gen., Helena, Robert Deschamps, III, Co. Atty., Missoula, Robert Slomski, Deputy Co. Atty., for plaintiff and respondent.
Defendant Matson appeals a bench conviction for aggravated assault in the Fourth Judicial District, Missoula County. On August 21, 1986, Matson was sentenced to ten years in prison, with all ten years suspended, and placed on probation. We affirm the conviction.
Matson raises five issues for our review:
1. Does substantial evidence support Matson's conviction?
2. Did the District Court abuse its discretion when it denied Matson's motion to dismiss at the close of the State's case?
3. Did the District Court abuse its discretion when it allowed the State to amend its information after trial began but before the verdict?
4. Did the District Court abuse its discretion when it admitted evidence of prior acts by Matson?
5. Did Matson receive effective assistance of counsel?
Matson is thirty-seven years old and resides with his parents on a six and one-half acre homesite in Seeley Lake, Montana. On June 15, 1985, two chickens belonging to Matson's neighbor flew onto Matson's property. Matson came out of his house with a pistol in his hand. For the next few minutes, Matson chased the chickens around his property until they flew back to his neighbor's land. As he stood at his fence, Matson waved the pistol and shouted at two neighbor children, ages ten and eleven, to keep their chickens off his property or "something will have to be done."
Does substantial evidence support Matson's conviction?
The court found Matson guilty of aggravated assault against one of the children, as defined in § 45-5-202(1)(c), MCA (1983): "A person commits the offense of aggravated assault if he purposely or knowingly causes ... reasonable apprehension of serious bodily injury in another by use of a weapon ..."
Matson contends that the evidence produced at trial was insufficient to support his conviction, because the State failed to prove that the children suffered reasonable apprehension of serious bodily injury.
Our standard of review on issues of substantial evidence is that a conviction cannot be overturned if the evidence, when viewed in a light most favorable to the prosecution, would allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Kutnyak (Mont.1984), 685 P.2d 901, 910, 41 St.Rep. 1277, 1289. If events are capable of different interpretations, the trier of fact shall determine which is the most reasonable. State v. Atlas (Mont.1986), 728 P.2d 421, 423, 43 St.Rep. 2042, 2044.
A careful review of the trial transcript convinces us that the evidence fully supports Matson's conviction for aggravated assault. The key elements of the crime are reasonable apprehension, serious bodily harm and use of a weapon. In their testimony, the neighbor children repeatedly stated that Matson had a pistol in his hand, that Matson pointed the pistol at them and that they were afraid they would be shot. The victim of the aggravated assault, Jason, testified to his fear:
Q. Was there anything special about what he was doing with the gun that you remember?
A. He cocked it.
* * *
Q. What were you thinking when that gun was pointed at you?
A. I thought he was going to shoot me.
Q. How did that make you feel?
A. Real scared.
The other child who witnessed Matson's aggravated assault was Jason's sister, Jennifer. She testified about her fear and resultant nightmares, in which "I dreamed that he shot me." Furthermore, Matson admitted that he shouted at the children with a pistol in his hand:
Q. When you were standing at the raised pistol position, did you yell at the children at that time, or did you yell at them when the pistol was in the holster?
A. I already had intentions of putting it in the holster. So as I yelled to them I was already going to put it in the holster. Its kind of a spontaneous action. I thought it would do some good, maybe, to tell them to keep the chickens out or something will have to be done.
However, Matson contends that the pistol in his hand was only a pellet pistol and not actually a "weapon." We note that section 45-2-101(71), MCA, defines "weapon" as "any instrument, article, or substance which ... is readily capable of being used to produce ... serious bodily injury." Serious bodily injury is defined as causing "protracted loss or impairment of the function or process of any bodily member or organ." Section 45-2-101(59), MCA. A pellet pistol does not escape the purview of "weapon," because a high-velocity pellet in the eye is certainly capable of inflicting "serious bodily injury."
Furthermore, Matson's contention is directly rebutted by the testimony of both Jason and Jason's father. When Jason was shown Matson's pellet pistol, he was asked:
Q. What's the difference about this gun compared to the one that was pointed at you?
A. The other gun was silver, it had a brown handle, and it had a shorter barrel.
Jason's father also testified that he saw Matson holding a large caliber pistol, not a pellet pistol:
Q. How do you know it was a large caliber pistol?
A. Well, I'm fairly familiar with firearms enough to realize that the length of barrel, the configuration of the frame and so forth led me to believe at that time that that was a large caliber pistol.
In summary, the testimony of Matson himself, corroborated by three other witnesses, placed Matson in the immediate vicinity of the children, with an unholstered pistol in Matson's hand. By his own admission, and corroborated by two witnesses, Matson spoke menacing words to the children while holding the pistol. This evidence, when combined with the children's testimony that they feared they would be shot, was sufficient to establish the elements of reasonable apprehension of serious bodily injury by use of a weapon. State v. Van Haele (1983), 675 P.2d 79, 82, 40 St.Rep. 1964, 1967. We hold that the evidence fully supports the court's conclusion that Matson committed aggravated assault.
Did the District Court abuse its discretion when it denied Matson's motion to dismiss at the close of the State's case?
Matson contends that the State failed to prove Matson used a "weapon" and, therefore, the court should have granted his motion.
We review this issue under the provisions of § 46-16-403, MCA, which states:
When, at the close of the state's evidence or at the close of all the evidence, the evidence is insufficient to support a finding or verdict of guilty, the court may, on its own motion or on the motion of the defendant, dismiss the action and discharge the defendant. [Emphasis added.]
In construing the statute, we note that the motion for dismissal is conditioned upon "insufficient evidence" to support a finding of guilty. A motion to dismiss under § 46-16-403, MCA, should be granted only where there is no evidence upon which a trier of fact could base a verdict. State v. White Water (Mont.1981), 634 P.2d 636, 638, 38 St.Rep. 1664, 1666. Based upon the State's presentation of direct evidence on the use of a weapon, we hold that the trial court exercised sound discretion and properly allowed the trial to proceed.
Did the District Court abuse its discretion when it allowed the State to amend its information after trial began but before the verdict?
On July 19, 1985, the State filed an information against Matson, stating:
Defendant committed the offense of AGGRAVATED ASSAULT, a Felony, as specified in Section 45-5-202, MCA ... On or about June 15, 1985, the above-named Defendant purposely or knowingly caused reasonable apprehension of bodily injury in Jason Nentwig, by use of a handgun, a large pistol, by pointing it at the victim.
However, § 45-5-202, MCA (1983), requires that the victim be under reasonable apprehension of serious bodily injury. Therefore, the information was amended, after the trial began but before the verdict, by inserting the word "serious" before "bodily."
The District Court concluded that the amendment was one of form and not of substance, that no additional or different offense was charged by the amendment, and that the amendment did not prejudice any substantial right of the defendant. Matson contends that the amendment was substantive and should not have been allowed.
In reviewing this issue, we are guided by § 46-11-403, MCA, which states:
(2) The court may permit an information to be amended as to form at any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced.
(3) No charge may be dismissed because of a formal defect which does not tend to prejudice a substantial right of the defendant. [Emphasis added.]
Before analyzing the propriety of the amendment, we must first analyze the adequacy of the original information. An information is a written accusation prepared by a prosecutor in the name of the state against a person for the commission of a crime. The information must reasonably apprise the accused of the charges against him, so that he may have the opportunity to prepare and present his defense. State v. Coleman (1978), 177 Mont. 1, 22, 579 P.2d 732, 745. This requirement is satisfied if the charges sufficiently express the language of the statute which defines the offense. State v. Hankins (Mont.1984), 680 P.2d 958, 962, 41 St.Rep. 762, 766; § 46-11-401(1)(c), MCA.
The original information fulfilled its primary purpose of notifying the defendant of the charges by capitalizing the words "aggravated assault" and...
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