State v. Weitzel

• Decision Date: 06 April 2000
• Docket Number: No. 99-047.,99-047.
• Citation: 998 P.2d 1154,2000 MT 86
• Parties: STATE of Montana, Plaintiff and Respondent, v. Richard Alfred WEITZEL, Defendant and Appellant.
• Court: Montana Supreme Court

998 P.2d 1154

2000 MT 86

STATE of Montana, Plaintiff and Respondent, v. Richard Alfred WEITZEL, Defendant and Appellant.

No. 99-047.

Supreme Court of Montana.

Submitted on Briefs October 14, 1999.

Decided April 6, 2000.

Thomas S. Winsor, Michael Scott Winsor, Winsor Law Firm, Helena, Montana, For Appellant.

Joseph P. Mazurek, Montana Attorney General, John Paulson, Assistant Montana Attorney General, Helena, Montana; Mike McGrath, Lewis and Clark County Attorney, Helena, Montana, For Respondent.

Justice WILLIAM E. HUNT, Sr., delivered the Opinion of the Court.

¶ 1 Richard Alfred Weitzel (Weitzel) appeals from a jury verdict finding him guilty of felony assault and the corresponding sentence imposed by the First Judicial District Court, Lewis and Clark County. We affirm the verdict but reverse the District Court's sentence enhancement for use of a weapon during the commission of an offense.

¶ 2 Weitzel raises three issues on appeal:

¶ 3 (1) Was there sufficient evidence to sustain the conviction for felony assault?

¶ 4 (2) Did the District Court abuse its discretion by allowing rebuttal evidence showing that Weitzel had pawned a handgun in July of 1996?

¶ 5 (3) Should this case be remanded to the District Court for resentencing in light of the recent decision in State v. Guillaume, 1999 MT 29, 293 Mont. 224, 975 P.2d 312?

Factual and Procedural Background

¶ 6 On April 10, 1998, the State of Montana (the State) filed an Information charging Weitzel with two counts of felony assault and one count of felony conspiracy to sell dangerous drugs. Count I alleged that Weitzel had pointed a handgun at the head of Jeffrey Brewer (Brewer), causing him reasonable apprehension of serious bodily injury. Count II alleged that Weitzel had pointed a handgun at Veronica Jenkins (Jenkins), causing her reasonable apprehension of serious bodily injury. And Count III alleged that Weitzel had agreed with Cynthia Thilmony (Thilmony) to the sale of marijuana and provided her with $800 cash for that purpose. Weitzel pleaded not guilty to the charges.

¶ 7 The events giving rise to the charges against Weitzel occurred on March 12, 1998, in Helena, Montana. At that time, Weitzel was a self-employed flooring contractor. He lived in a house on Choteau Street and was engaged to Judy Weidner (Weidner). Weidner's nineteen-year-old niece, Thilmony, lived nearby in an apartment on Broadwater Circle. On March 12, Thilmony called Weitzel at his house and asked if she could come over and use his washing machine to do some laundry. Weitzel agreed and Thilmony arrived at his house around noon. During this visit, according to Thilmony, Weitzel asked her if she could procure a half-pound of marijuana for him to purchase. Thilmony agreed to make some inquiries on behalf of Weitzel.

¶ 8 Thilmony then called her boyfriend, Brewer, who in turn called two friends, Mike Zandhuisen (Zandhuisen) and Jeremy Younkin (Younkin). Younkin stated that he could obtain a half-pound of marijuana for $800; Brewer related this information to Thilmony, who informed Weitzel. Weitzel allegedly gave Thilmony $800, and she turned the money over to Brewer to make the purchase of marijuana. Brewer then gave Younkin $700 cash, keeping $100 for himself. However, after obtaining the $700 from Brewer, Younkin and Zandhuisen decided to steal the money from Brewer and split it between themselves.

¶ 9 At about 6:15 p.m., Weitzel allegedly first learned that $800 cash was missing from his wallet, which had been sitting on a desk in his home office throughout the day, and he called Weidner to inform her of the fact. Weitzel and Weidner assumed that the culprit was Thilmony. Sometime after 9:00 p.m., Brewer went to Jenkins' apartment on Broadwater Circle and called Zandhuisen, who then informed Brewer that he and Younkin did not have the money or the drugs because the $700 had been "ripped off" by their supplier. Subsequently, Thilmony went to her apartment and was confronted by Weitzel about the missing cash. According to Weitzel, Thilmony admitted to stealing the money and giving it to Brewer to purchase marijuana.

¶ 10 Weitzel then decided to find and confront Brewer. Thilmony drove Weitzel to Jenkin' apartment. According to Thilmony, Weitzel had a handgun in a shoulder holster under his jacket, and he informed Thilmony that someone's "going to die tonight." Upon arriving, Weitzel got out of the car, walked into Jenkins' apartment, and pinned Brewer's head against the wall with a dark object, demanding his money back and shouting obscenities. Brewer, Zandhuisen, Scott Smith (Smith), and Rob Hollow (Hollow) subsequently escaped on foot, while Jenkins remained at her apartment. Weitzel left Jenkins' apartment in Thilmony's car, but asked her to drop him off at Weidner's apartment. About fifteen minutes thereafter, Weitzel showed up at Thilmony's apartment on foot, carrying a cell phone instead of a gun.

¶ 11 At 10:08 p.m., the Helena Police Department received a call from Thilmony's mother, who stated that she believed Thilmony was in danger and expressed concern that there might be a gun involved. Upon responding to the call and arriving at Thilmony's apartment on Broadwater Circle, the police encountered Weitzel at the front door. Weitzel was immediately patted down but the police found no firearm or holster on his person. The police advised Weitzel of the concern that their might be a gun involved, to which Weitzel responded that the confusion may have been caused by his cell phone. When questioned, Thilmony told the police that $800 had been stolen from her and that Weitzel was helping her to get the money back. Weitzel did not contradict Thilmony's story at that time.

¶ 12 A few days after this incident, Thilmony told the police about the alleged drug deal and the events leading up to the assault by Weitzel. Weitzel eventually told the police that Thilmony had taken the $800 from his apartment, and that he had gone with Thilmony to Jenkins' apartment in an attempt to recover the money. Weitzel denied that he had used a gun to threaten Brewer, instead claiming that he had held his cell phone against Brewer's face during the confrontation at Jenkins' apartment.

¶ 13 The other witnesses to the incident recalled varying, and often contradictory, details about the assault. Although Thilmony did not initially represent to police that a gun had been involved in the incident, she subsequently testified that Weitzel had been holding a handgun when he entered Jenkins' apartment on the night in question. Zandhuisen claimed that after the incident with Weitzel, Brewer had injuries consistent with having been hit in the head with a gun. However, Brewer denied the same at trial. Smith and Hollow also testified, consistent with Zandhuisen, that Weitzel had wielded a gun against Brewer on the night of March 12. Immediately following the assault incident, Jenkins had excitedly told a neighbor that Weitzel had come into her apartment and thrown Brewer against the wall, but at that time she never mentioned that Weitzel had a gun. However, Jenkins subsequently stated to police that Weitzel had threatened her with a gun. Shortly after the incident, Jenkins mysteriously moved out of Montana.

¶ 14 All of the State's key witnesses (excluding the police) were friends prior to the incident. The authorities did not search Weitzel's home for any guns, nor did they search Weidner's apartment for any handguns belonging to Weitzel. At trial, Weidner testified that she did not believe that Weitzel owned a handgun. Weitzel's criminal record consisted of only two misdemeanors, neither of which involved drugs or violence. Thilmony was charged with conspiracy but pleaded to theft in return for her testifying against Weitzel. Zandhuisen was also charged with conspiracy but, notwithstanding the absence of an agreement to testify against Weitzel, the charges against him were dismissed. Brewer was not charged in connection with this case.

¶ 15 Prior to trial, Weitzel gave notice that he would present evidence of his good character and assert the defense of justifiable use of force. At trial, Weitzel testified that he had last purchased a handgun in March or April of 1996 and had given it to his brother at that time. On cross-examination, Weitzel clarified that he had purchased a .9mm Baretta as a belated birthday present for his brother in 1996, and further denied having any handguns himself. Weitzel's brother testified at trial about the gift of the pistol in 1996 and also testified that Weitzel did not have any handguns.

¶ 16 At the close of Weitzel's case-in-chief, the State moved to present rebuttal testimony to the effect that Weitzel had pawned and then subsequently retrieved a handgun from a pawnshop in 1996. That handgun was a .45 caliber Llama similar in appearance to the one described by the State's witnesses. The State explained that it had not known prior to trial what the testimony of Weitzel and his brother would be concerning Weitzel's ownership of handguns, and offered the rebuttal evidence to impeach Weitzel's credibility. The District Court overruled Weitzel's objections and permitted the State to present the rebuttal evidence in the form of pawn shop records. The court also allowed the State to show the jury an actual .45 caliber Llama to demonstrate the type of firearm that Weitzel had owned in 1996.

¶ 17 On August 26, 1998, the jury returned its verdict, unanimously finding Weitzel guilty of felony assault under Count I, and not guilty of conspiracy to commit the criminal sale of dangerous drugs under Count III. The jury was unable to reach a verdict as to the felony assault charge alleged in Count II. Following the verdict, Weitzel filed a "Motion for Judgment Notwithstanding the Verdict," which was denied by the District Court. On October 23, 1998, the District Court sentenced Weitzel to the Montana State Prison for a term of four years for Count I, felony assault, with...