State v. Smith
| Decision Date | 26 July 2004 |
| Docket Number | No. 02-459.,02-459. |
| Citation | 95 P.3d 137,2004 MT 191,322 Mont. 206 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Scott S. SMITH, Defendant and Appellant. |
| Court | Montana Supreme Court |
For Appellant: Robert L. Stephens, Jr., Southside Law Center, Billings, Montana.
For Respondent: Mike McGrath, Attorney General; Carol E. Schmidt, Assistant Attorney General, Helena, Montana, Dennis Paxinos, County Attorney; Melodee Hanes, Deputy County Attorney, Billings, Montana.
¶ 1 Scott S. Smith (Smith) appeals from the order entered by the Thirteenth Judicial District Court, Yellowstone County, denying his motion to dismiss. We reverse.
¶ 2 The following issue is presented on appeal:
¶ 3 Did the District Court err in denying Smith's motion to dismiss Count I of the second amended Information on grounds that: (a) the prosecutor erroneously charged him with the offense of assault with a weapon, pursuant to § 45-5-213, MCA, rather than the offense of privacy in communications through intimidation over the telephone, pursuant to § 45-8-213, MCA; and (b) the affidavit supporting the charge of assault with a weapon pursuant to § 45-5-213, MCA, failed to state the required elements to establish the offense of assault with a weapon?
¶ 4 On July 12, 2001, the Yellowstone County Attorney filed an Information charging Smith with two counts of felony assault with a weapon, pursuant to § 45-5-213, MCA. Count I charged Smith with causing Tami Smith (Tami), his wife, reasonable apprehension to believe Smith would inflict serious bodily injury on Mac Hernandez (Hernandez), Tami's boyfriend. Count II charged Smith with causing Hernandez reasonable apprehension to believe Smith would inflict serious bodily injury on Hernandez.
¶ 5 The affidavit in support of the Information alleged that on or about July 9, 2001, Smith and Tami were estranged husband and wife, and that Tami had begun a relationship with Mac Hernandez, a security officer for Saint Vincent's Hospital. During a telephone conversation, Smith told Tami he was going to kill Hernandez with a gun. He then made a metallic clicking noise over the telephone. Smith asked, "Do you know what this is?" He told her it was the sound of a gun cocking and that he was going to go kill Hernandez. Smith then hung up. Tami immediately notified Hernandez to warn him. Shortly thereafter, Smith called Hernandez twice on Hernandez's cell phone while Hernandez was at work. In the first call, Smith said he was on his way to kill Hernandez. In the second call, Smith told Hernandez he was in the hospital where Hernandez worked looking for him to kill him. When Hernandez asked Smith to identify his location, he responded, "No, I think we will make this interesting." Hernandez put on a bulletproof vest and immediately contacted the police who later arrested Smith in front of his home. At the time of arrest, police recovered three firearms from Smith's living room. Later, one of Smith's friends gave police two bullets upon one of which Smith had allegedly written the name "Mac" and upon the other a "?".
¶ 6 The affidavit in support of the Information stated that Smith used the cocking of the gun, or that sound, with Tami, but not with Hernandez, and further indicated that "Mac Hernandez believed that the defendant was on his way to the hospital to shoot him that evening," and that "Tami Smith believed that the defendant would carry out his threat to go to the hospital and shoot Mr. Hernandez."
¶ 7 On September 25, 2001, Smith filed a motion to dismiss the Information and memorandum in support which asserted: (1) the Information failed to set forth a prima facie allegation of assault with a weapon in violation of § 45-5-213, MCA; (2) since assault with a weapon could not be committed over the telephone, the proper violation with which Smith should have been charged was violation of privacy in communications through intimidation over the telephone, in violation of § 45-8-213(1)(a), MCA; and (3) the alleged victim was required by § 45-5-213, MCA, to "see" the weapon or "reasonably believe that there is a weapon being utilized by the perpetrator to cause `reasonable apprehension of serious bodily injury,'" which, Smith asserts, Hernandez, as the intended victim, did not do. In response, the State argued that the victim of an assault with a weapon need not actually "see" the weapon for sufficient evidence to exist of reasonable apprehension of serious bodily injury with a weapon.
¶ 8 On October 24, 2001, the State filed a second amended affidavit which set forth the same facts, but more precisely delineated the alleged victims involved. The State also requested leave to file a second amended Information. On the same day, after hearing oral argument, the District Court denied Smith's motion to dismiss on the following grounds:
What we have here is purposely or knowingly caused reasonable apprehension. The apprehension has to do with apprehension of serious bodily injury, in another. I think that means in someone other than the defendant, and it has to include use of a weapon.... [T]his statute is primarily to — it's designed to punish, to criminalize, the use or threatened use of a weapon, and that's what occurred here. Bottom line is, he threatened to kill and he threatened to kill with a gun. And I think that's the main intent of this statute.
¶ 9 On November 1, 2001, the State filed a second amended Information, and Smith pled not guilty to both counts of assault with a weapon, subject to the reservation of his objections previously made.
¶ 10 On April 5, 2002, Smith entered into a plea agreement that required him to plead guilty to Count I of the amended Information which alleged that Smith caused reasonable apprehension in Tami that Smith would kill Hernandez with a weapon. In exchange for Smith's plea of guilty to Count I, the State agreed: (1) to dismiss with prejudice Count II of the second amended Information which alleged that Smith caused reasonable apprehension in Hernandez that Smith would kill Hernandez with a weapon; and (2) to recommend a deferred sentence of two years, providing that Smith follow specified probation conditions. Smith reserved the right to appeal to this Court on issues related to the appropriateness of the charges brought in the second amended Information.
¶ 11 On June 11, 2002, the District Court entered an order deferring imposition of sentence for a period of two years and placed Smith on probation. Smith appeals.
¶ 12 A district court's denial of a motion to dismiss criminal charges is a matter of law which we review de novo, determining only whether the court correctly interpreted the law. State ex rel. Booth v. Montana Twenty-First Judicial Dist., 1998 MT 344, ¶ 10, 292 Mont. 371, ¶ 10, 972 P.2d 325, ¶ 10 (citing State v. Bowles (1997), 284 Mont. 490, 492, 947 P.2d 52, 53).
¶ 13 Did the District Court err in denying Smith's motion to dismiss the Information on grounds that the prosecutor erroneously charged him with the offense of assault with a weapon rather than the offense of privacy in communications through intimidation over the telephone?
¶ 14 Smith recounts the facts alleged in the affidavit in support of the second amended Information:
[T]he ex-wife was talking on the telephone with the defendant when he became angry and stated he was going to kill the boyfriend.... [T]he defendant made a metallic clicking sound over the telephone and then asked, "Do you know what this is?" He continued to tell her it was the sound of a gun cocking and that he was going to kill Mr. Hernandez. The [sic] then hung up.
¶ 15 Smith asserts that, based upon these facts, the District Court erred in denying his motion to dismiss the Information on grounds the prosecutor erroneously charged him with what Smith terms the "generalized" offense of assault with a weapon, pursuant to § 45-5-213, MCA, rather than the "specific" violation of privacy in communications through intimidation over the telephone, pursuant to § 45-8-213(1)(a), MCA. Smith argues that the essence of the difference between these two statutes is that the privacy in communications statute is a "specific," or "particularized," version of the "general" assault with a weapon statute.
¶ 16 Section 45-5-213, MCA, assault with a weapon, states:
Section 45-8-213, MCA, privacy in communications, states in pertinent part:
¶ 17 Smith cites State v. Feight, 2001 MT 205, 306 Mont. 312, 33 P.3d 623, in support of his contention that the "specific...
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