State v. McCaslin

Decision Date10 August 2004
Docket NumberNo. 03-519,03-519
Citation322 Mont. 350,2004 MT 212,96 P.3d 722
PartiesSTATE OF MONTANA, Plaintiff and Respondent, v. CLAY ELWOOD McCASLIN, Defendant and Appellant.
CourtMontana Supreme Court

For Appellant: Jay F. Lansing (argued), Moses Law Firm, Billings, Montana.

For Respondent: Hon. Mike McGrath, Attorney General; Pamela P. Collins (argued), Assistant Attorney General, Helena, Montana, Marty Lambert, Gallatin County Attorney; Todd Whipple, Deputy County Attorney, Bozeman, Montana.

Justice JIM REGNIER delivered the Opinion of the Court.

¶1 Clay Elwood McCaslin (McCaslin), appeals from his conviction of Aggravated Assault, a felony in violation of § 45-5-202, MCA; Assault, a misdemeanor in violation of § 45-5-201, MCA; and Assault with a Weapon, a felony in violation of § 45-5-213, MCA, following a jury trial in the Eighteenth Judicial District Court, Gallatin County. We affirm.


¶2 This appeal arises out of events that took place during the early morning hours of February 2, 2002. McCaslin and Brittany Olson (Brittany) entered the Robin Bar in the Baxter Hotel, downtown Bozeman, Montana, and both ordered a drink. The bartender, Nicholas DiBerardinis (DiBerardinis), testified that after observing McCaslin, while he appeared to be under the influence of alcohol, McCaslin did not slur his speech nor swagger while he walked. McCaslin, a twenty-two year old 152 pound male, had been drinking prior to arriving at the Robin. DiBerardinis asked them to leave at closing time and they left through the lobby of the Baxter Hotel onto Main Street.

¶3 Brittany and McCaslin proceeded east on Main Street towards Willson Avenue in the direction of Brittany's car and they encountered four large men from Billings at the corner: Chad Lehman, Mark Turner, Randy Stone and Dan Oltrogge. The four men had been drinking on the way over to Bozeman from Billings and continued to drink at the bars in Bozeman. Each man varied in degree of drunkenness.

¶4 As each group passed each other, Turner testified that he said to McCaslin, "Watch for deer," and the others snickered. In response to what he thought was a derogatory comment, "Watch out for the queer," McCaslin testified that he said, "F--off." McCaslin and the four men exchanged heated words as each group proceeded towards their cars in opposite directions, shouting across Willson Avenue. DiBerardinis heard yelling outside so he stepped out the side door of the Robin and observed the altercation. He testified that he saw McCaslin and Brittany on one side of the road and the four men on the other side; one man inside a car with the car door open and the others standing next to it. Eventually the exchange escalated and three of the four men, Lehman, Turner and Stone, crossed Willson Avenue towards McCaslin. Oltrogge remained with their car.

¶5 Lehman reached McCaslin first and the evidence conflicts at this point. It is not clear as to who threw punches, however, McCaslin testified that he ducked under a punch thrown by Lehman. McCaslin then stated that he grabbed a knife from his boot and lunged forward with the knife, cutting Lehman's pinky finger. Lehman denied punching McCaslin. McCaslin further testified that Turner then stepped in front of Lehman and he interpreted this movement as an indication that the two were joining forces against him. He further testified that he lunged at Turner with the knife in his hand puncturing Turner's chest. McCaslin testified that he used his knife to protect himself against the three men.

¶6 At or around the same time, Russell Tolman emerged from the Robin after a few drinks. He made his way over to his car in the Armory parking lot and observed the altercation before he got into his vehicle. He approached the altercation to try to calm the situation down and one of the men from Billings yelled at him to run because McCaslin would stab him. Tolman turned around and threw his hands up. McCaslin testified that he thought that Tolman was one of the three men that had been aggressive towards him and he was standing his ground. McCaslin punched Tolman on the side and stabbed him in his flank area.

¶7 On November 20, 2002, a jury convicted McCaslin on three Counts. McCaslin appeals and we affirm. On April 26, 2004, this Court heard oral argument and limited the issues argued to Issues One and Three.

¶8 McCaslin raises the following issues on appeal:

¶9 1. Whether the District Court erred in instructing the jury upon the issue of intoxication as set forth in Given Instruction No. 17(a), which was based upon § 45-2-203, MCA?

¶10 2. Whether the District Court erred in admitting evidence of the Defendant's state of intoxication after his arrest?

¶11 3. Whether the District Court erred in refusing to instruct the jury regarding injury to a third party bystander while acting in self-defense?

¶12 4. Whether sufficient evidence supported McCaslin's convictions of Count I, Aggravated Assault, and Count III, Assault with a Weapon?

¶13 5. Whether the Defendant was entitled to credit for time served for time spent on house arrest prior to sentencing?


¶14 The standard of review of jury instructions in criminal cases is whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. A district court has broad discretion when it instructs the jury. State v. Hall, 2003 MT 253, ¶ 24, 317 Mont. 356, ¶ 24, 77 P.3d 239, ¶ 24. Statutes carry the presumption of constitutionality, therefore the party making the constitutional challenge bears the burden of proving, beyond a reasonable doubt, that the statute is unconstitutional, and any doubt must be resolved in favor of the statute. State v. Turbiville, 2003 MT 340, ¶ 18, 318 Mont. 451, ¶ 18, 81 P.3d 475, ¶ 18. Because the issue of whether a defendant's due process rights were violated is a question of law, we review the district court's conclusion to determine whether its interpretation of the law was correct. Turbiville, ¶ 10.

¶15 We review a district court's evidentiary rulings to determine whether the district court abused its discretion. State v. DuBray, 2003 MT 255, ¶ 67, 317 Mont. 377, ¶ 67, 77 P.3d 247, ¶ 67. A district court has broad discretion to determine whether evidence is relevant and admissible. Absent a showing of abuse of discretion, we will not overturn a court's evidentiary determination. State v. Bingman, 2002 MT 350, ¶ 31, 313 Mont. 376, ¶ 31, 61 P.3d 153, ¶ 31. An abuse of discretion occurs when a district court acts arbitrarily without conscientious judgment or exceeds the bounds of reason. State v. Russette, 2002 MT 200, ¶ 7, 311 Mont. 188, ¶ 7, 53 P.3d 1256, ¶ 7.

¶16 We review the evidence in a criminal trial in the light most favorable to the prosecution to determine whether the trier of fact could have found the essential elements of the offense beyond a reasonable doubt. State v. McMahon, 2003 MT 363, ¶ 11, 319 Mont. 77, ¶ 11, 81 P.3d 508, ¶ 11.

¶17 This Court reviews a district court's imposition of a sentence for legality only. State v. Mason, 2003 MT 371, ¶ 19, 319 Mont. 117, ¶ 19, 82 P.3d 903, ¶ 19. The standard of review of the legality of a sentence is whether the sentencing court abused its discretion. State v. Meeks, 2002 MT 246, ¶ 15, 312 Mont. 126, ¶ 15, 58 P.3d 167, ¶ 15.


¶18 Whether the District Court erred in instructing the jury upon the issue of intoxication as set forth in Given Instruction No. 17(a), which was based upon § 45-2-203, MCA?

¶19 McCaslin's main defense in this case was the justifiable use of force. The District Court instructed the jury that voluntary intoxication is not a defense to a crime. See Montana v. Egelhoff (1996), 518 U.S. 37, 116 S.Ct. 2013, 135 L.Ed.2d 361

. Jury Instruction No. 17(a) provided the following:

A person who is in an intoxicated condition is criminally responsible for his conduct. An intoxicated condition is not a defense to any offense and may not be taken into consideration in determining the existence of a mental state which is an element of the offense unless the defendant proves that he did not know that it was an intoxicating substance when he consumed, or otherwise ingested the substance causing the condition.

Authority for this instruction is § 45-2-203, MCA.

¶20 McCaslin makes two arguments to support his claim that the District Court erred when it issued this instruction. He contends that the first sentence of the given instruction improperly shifted the burden of proof in violation of Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, because it created a conclusive presumption, in essence a mandate, of McCaslin's criminal responsibility. He claims the mandate is further demonstrated by the fact that the instruction has a period after "conduct" instead of "and," as reflected in the statute. Relying upon Sandstrom, McCaslin alleges that the contended language can easily be interpreted by a reasonable juror as creating an irrebuttable direction by the court to find intent if the State convinced the jury that McCaslin was in an intoxicated condition, effectively nullifying his defense of justifiable use of force.

¶21 Additionally, he maintains that the jury instruction violates his right to due process of law as set forth in Article II, Section 17 of the Montana Constitution. McCaslin recognizes that the United States Supreme Court in Montana v. Egelhoff (1996), 518 U.S. 37, 116 S.Ct. 2013, 135 L.Ed.2d 361, upheld § 45-2-203, MCA, on federal constitutional grounds, but urges us to readdress this issue on independent state constitutional grounds. McCaslin asserts that the significance becomes evident when one considers the fact that the court presented the issue of negligence to the jury in the form of lesser included offense instructions. McCaslin contends that it is fundamentally unfair on the one hand, for the State to introduce evidence of his...

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