State v. Mummey

• Decision Date: 17 March 1994
• Docket Number: No. 93-165,93-165
• Citation: 51 St.Rep. 198,264 Mont. 272,871 P.2d 868
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Mike MUMMEY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 868

871 P.2d 868

264 Mont. 272

The STATE of Montana, Plaintiff and Respondent, v. Mike MUMMEY, Defendant and Appellant.

No. 93-165.

Supreme Court of Montana.

Submitted on Briefs Dec. 2, 1993.

Decided March 17, 1994.

Patrick F. Flaherty, Great Falls, for defendant and appellant.

Joseph P. Mazurek, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Donald Ranstrom, County Atty., Chinook, for plaintiff and respondent.

DOROTHY McCARTER, District Judge. ^*

Mike Mummey (Defendant) appeals from Blaine County District Court orders denying his motions for directed verdict, and for judgment notwithstanding the verdict after his conviction for felony assault. We affirm.

On December 9, 1991, Raymond Miller, Merle Darling and Wade Hillier drove to Montana from their home in Canada to visit friends and purchase some equipment for a hot water tank. When they arrived in Harlem, Montana, they stopped at the Nite Train Bar to visit with Miller's friends and have some drinks.

A few blocks from the Nite Train Bar was Kennedy's Bar, where Defendant was drinking with Joe Mohar and Louis "Puddy" Mount. Defendant and Mohar became disruptive and after being rebuked by the bartender, they left Kennedy's and proceeded to the Nite Train Bar.

At the Nite Train Bar, Defendant noticed the three Canadian men and made a derogatory comment to the bartender, asking if the men were "some of your pig farmer friends from up north." Mohar saw one of the Canadians, Wade Hillier, talking to three local women. Mohar went over to Hillier, shoved him away and, using profane language, told him to get out of the way and leave his women alone. Raymond Miller went over to Mohar and asked what the problem was. Mohar replied with profanity, telling Miller that he and his Canadian friends should get out of the bar and out of the country.

The owner of the bar intervened and told Mohar to leave. Mohar yelled to Defendant that he did not like Canadians, and yelled to Miller that he would take him outside and fight him. Mohar then left the bar. Defendant purchased some beer and a bottle of liquor and also left the bar.

Miller remained in the bar for about five minutes, then left. Merle Darling, who had not witnessed the shoving incident and the exchange of words between Mohar and Miller, assumed that Miller was going to Kennedy's, and decided to go see what was happening there. When he opened the front door of the Nite Train Bar to leave, Darling saw Miller lying on the street on his back, being kicked by Defendant and Mohar. Darling charged into Defendant and Mohar in an attempt to get them off Miller. Darling was knocked to the ground by a blow and then was kicked four or five times in the head. One kick struck him in the mouth. When the assailants left, Darling got up, checked Miller, and returned to the bar to get help.

Darling was cut and bruised, and his false teeth were shattered. Miller suffered severe facial injuries, including injuries to his eyes. As a result of the severe beating, Miller suffered a memory lapse and could not recall the events that led to his injuries. Darling testified that he was hit in the teeth with what felt like boots, but he did not see whose boots they were. Defendant testified that he wore tennis shoes that night.

During the trial, Puddy Mount and Defendant both testified that Defendant did not participate in the beating of Miller. Mount testified that Defendant attacked Darling as he walked out of the bar. Defendant testified that he intercepted Darling in order to keep him out of the fight; he stated that Mount kicked Darling and he, Defendant, attempted to stop Mount from doing so.

Defendant was charged with two crimes: aggravated assault (Count 1) upon Raymond Miller, and felony assault (Count 2) upon Merle Darling. The case proceeded to trial and, at the close of the State's case, Defendant moved for a directed verdict as to both counts. The motion was denied. On September 23, 1992, the jury returned its verdict, finding Defendant not guilty of aggravated assault and guilty of felony assault. Defendant moved for judgment notwithstanding the verdict. That motion was also denied. At the sentencing hearing the District Court deferred imposition of sentence for three years and placed Defendant on probation, subject to certain conditions.

There are two assignments of error on appeal:

1. That the court erred in refusing to grant the motion for directed verdict; and

2. That the court erred in refusing to grant the motion for judgment N.O.V.

The issues raised in these motions are twofold:

1. Whether the tennis shoes worn by Defendant were a weapon under the assault statute; and

2. Whether the language in the felony assault count of the information precluded the jury from convicting Defendant of that count after acquitting him of aggravated assault.

Standards of Review

Section 46-16-403, MCA, permits the district court to dismiss a criminal action at the close of the prosecution's case when the evidence is insufficient to support a finding or verdict of guilty. This Court has construed this statute to mean that " 'a verdict of acquittal may be directed in favor of the defendant only if no evidence exists upon which to base a guilty verdict.' " State v. Haskins (1992), 255 Mont. 202, 210, 841 P.2d 542, 547 (quoting State v. Christofferson (1989), 238 Mont. 9, 11, 775 P.2d 690, 692) (emphasis in original). The Court has repeatedly stated that a defendant is entitled to an acquittal if reasonable persons could not conclude from the evidence taken in the light most favorable to the prosecution that guilt has been proven beyond a reasonable doubt. See State v. Doney (1981), 194 Mont. 22, 29, 636 P.2d 1377, 1381; Haskins, 841 P.2d at 547 (citing State v. Laverdure (1990), 241 Mont. 135, 785 P.2d 718).

The standard of review for a trial court's refusal to grant a defendant's motion for a directed verdict of acquittal is 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. This is the same standard of review used by the Court to determine the sufficiency of the evidence supporting a conviction. State v. Bower (1992), 254 Mont. 1, 6, 833 P.2d 1106, 1110.

The decision to direct a verdict at the close of the State's case lies within the sound discretion of the trial court and is not disturbed on appeal absent an abuse of that discretion. See State v. Graves (1990), 241 Mont. 533, 535, 788 P.2d 311, 313.

The statutes governing practice and procedure in criminal proceedings do not provide for judgment notwithstanding the verdict. Cf. Rule 50(b), (c), (d), M.R.Civ.P. However, § 46-16-702, MCA, permits a defendant to move for a new trial following a verdict of guilty, and under this statute, the district court may modify or change the verdict by finding the defendant guilty of a lesser included offense or finding the defendant not guilty. Defendant's motion for judgment notwithstanding the verdict will be deemed one made under that section.

The standard of review of a district court's ruling on a motion for new trial is whether the district court abused its discretion. State v. Gambrel (1990), 246 Mont. 84, 91, 803 P.2d 1071, 1076.

Issue 1

Defendant argues that the State failed to prove with sufficient evidence that his footwear was a weapon under the felony assault statute. In chambers, while arguing the motion for directed verdict, Defendant conceded that he had been fighting with and had committed "a technical assault" on Merle Darling, but argues that the State had failed to identify the weapon. He further argues that the tennis shoes, which Defendant wore during the assault, are not weapons as defined in the statute because they are incapable of producing serious bodily injury.

Section 45-2-101(71), MCA, defines "weapon" as "any instrument, article, or substance that, regardless of its primary function, is readily capable of being used to produce death or serious bodily injury." One of the elements of felony assault upon Darling was use of a weapon. Section 45-5-202(2)(a), MCA. "Serious bodily injury" means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ. It includes serious mental illness or impairment. Section 45-2-101(59), MCA.

Whether a weapon was used in the commission of a criminal assault is a factual element to be determined by the jury. The test for sufficiency of the evidence with respect to a factual element of a crime is whether any rational trier of fact could have found that element beyond a reasonable doubt. State v. Evans (1991), 247 Mont. 218, 224, 806 P.2d 512, 516.

The statute defining "weapon" for purposes of the assault statutes must be construed according to the plain meaning of the language therein. See State ex rel. Woodahl v. District Court (1973), 162 Mont. 283, 292, 511 P.2d 318, 323. When the language of the statute is plain, unambiguous, direct and certain, the statute speaks for itself and there is nothing left for the court to construe. Hammill v. Young (1975), 168 Mont. 81, 85-86, 540 P.2d 971, 974. The language of § 45-2-101(71), MCA, is broad enough to include any instrument that although not dangerous per se may be considered a weapon, depending on its manner of use and the circumstances in which it is used.

Many jurisdictions have adopted this approach, when considering shoes as weapons. See Jones v. Commonwealth (Ky.1953), 256 S.W.2d 520 (shoes may be regarded within the term "deadly weapon" when employed in such a manner as may be reasonably calculated to produce great bodily injury or death); Medlin v. United States (D.C.Cir.1953), 207 F.2d 33, cert. denied, (1954) 347 U.S. 905, 74 S.Ct. 431, 98 L.Ed. 1064 (shoes are dangerous weapons when they inflict serious injury); United...