State v. Smaage, 95-455
| Decision Date | 15 April 1996 |
| Docket Number | No. 95-455,95-455 |
| Citation | 276 Mont. 94,53 St.Rep. 294,915 P.2d 192 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Shawn Kevin SMAAGE, Defendant and Appellant. |
| Court | Montana Supreme Court |
Appeal from the District Court of the First Judicial District, in and for the County of Lewis and Clark, Honorable Jeffrey M. Sherlock, Judge presiding.
J. Mayo Ashley, Helena, for Appellant.
Joseph P. Mazurek, Attorney General; Patricia J. Jordan, Assistant Attorney General, Helena, Mike McGrath, County Attorney; Vicki Frazier, Deputy County Attorney, Helena, for Respondent.
Shawn Smaage was convicted of felony criminal endangerment in a bench trial in the First Judicial District Court, Lewis and Clark County. He appeals. We affirm.
The issue is whether Smaage was incorrectly charged under the criminal endangerment statute rather than under DUI statutes.
In the early morning hours of December 11, 1994, a citizen reported to the Helena, Montana, city police that he had just observed a man who appeared very intoxicated get into an older white Buick and start "swerving down the road." The citizen provided a vehicle description and license plate number.
Shortly thereafter, a deputy county sheriff located the white Buick on a city street. The Buick continued to travel over several city blocks, making a right-hand turn from the left lane of traffic and weaving into the oncoming lane of traffic several times. Other vehicles on the streets managed to avoid the Buick.
When the Buick's driver, who was later identified as Shawn Smaage, was pulled over and got out of the car, he refused to perform several field sobriety tests. Asked if he had been drinking, Smaage admitted that he had "had his share."
At the county jail, Smaage tested as having a .250 blood alcohol content--well over the legal limit of .10. See § 61-8-401, MCA. He was charged with second offense DUI.
Further review of Smaage's criminal record revealed that, while he had been charged with DUI only once in the preceding five years, he had five previous DUI convictions between 1981 and 1988. Additionally, in April 1988, Smaage pled guilty to negligent homicide as a result of the death of a passenger in a vehicle he wrecked. Under the law in effect in 1994, all of Smaage's DUI convictions which were over five years old had been deleted from his driving record and could not be used to increase the DUI penalty on the current charge. Section 61-8-714(5), MCA (1993).
After Smaage's record of drinking and driving was reviewed, the charge against him was changed to criminal endangerment. Smaage moved to dismiss the charge of criminal endangerment on the ground that the criminal endangerment statute, § 45-5-207, MCA, was inapplicable to the facts of this case. He also argued that the statute was unconstitutionally vague as applied to him. The District Court denied the motion to dismiss.
Smaage was convicted in a bench trial. He was sentenced to ten years in prison and was designated a dangerous offender.
Was Smaage incorrectly charged under the criminal endangerment statute rather than under the DUI statutes?
Section 45-5-207, MCA, provides:
Criminal endangerment--penalty. (1) A person who knowingly engages in conduct that creates a substantial risk of death or serious bodily injury to another commits the offense of criminal endangerment. This conduct includes but is not limited to knowingly placing in a tree, log, or any other wood any steel, iron, ceramic, or other substance for the purpose of damaging a saw or other wood harvesting, processing, or manufacturing equipment.
(2) A person convicted of the offense of criminal endangerment shall be fined an amount not to exceed $50,000 or imprisoned in the state prison for a term not to exceed 10 years, or both. [Emphasis added.]
Smaage argues that he should have been charged under the more specific DUI statutes, §§ 61-8-401 and -722, MCA, rather than the more general criminal endangerment statute.
Smaage cites State v. Langan (1968), 151 Mont. 558, 445 P.2d 565, in support of his proposition that a more specific statute controls over a more general statute. Langan addressed situations in which the more specific statute conflicts with and cannot be harmonized with the general statute. In Langan, a specific statute prohibiting the issuance of a warrant to search a private residence for contraband directly conflicted with general statutes allowing issuance of a warrant. This Court held that the specific statute controlled.
Here, in contrast, we are not faced with a conflict between a specific statute and a general statute, but with alternative charging statutes. When there is no clear and manifest legislative intent to the contrary and different proof is required under two alternative statutes, it is not necessary that the most specific statutory violation be charged. See State v. Booke (1978), 178 Mont. 225, 230, 583 P.2d 405, 408.
The legislative history of § 45-5-207, MCA, which was enacted as Ch. 196, L. 1987, contains the following description of discussion in the Senate Judiciary Committee:
Senator Yellowtail asked if a person drinks a case of beer and gets into a car, is that person guilty of criminal endangerment or is it negligence [sic] endangerment. Senator Halligan said an [sic] prosecuting attorney would charge him with the highest possible charge that they can, which is criminal endangerment.
Minutes, Senate Judiciary Committee, March 6, 1987, at 5-6. The above discussion does not demonstrate clear and manifest legislative intent to prohibit use of the criminal endangerment statute in prosecutions for drinking and driving. In fact, we conclude that the above exchange demonstrates legislative intent that the statute may be so used.
We recently restated the general rule of prosecutorial discretion in the charging of crimes:
It is not only incumbent upon the county attorney to determine when or when not to prosecute a case, but when the facts of a case support a possible charge of more than one crime, the crime to be charged is a matter of prosecutorial discretion.
State ex rel. Fletcher v. Dist. Court (1993), 260 Mont. 410, 415, 859 P.2d 992, 995. The question, then, is not which statute most specifically covers the crime, but whether the facts support the charge of criminal endangerment.
The elements of criminal endangerment are the mental state of "knowingly" and the act of engaging in conduct that creates a...
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