The opinion
No. 94-487
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
DUSTY DENNIS BROWN,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Ed McLean, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David E. Stenerson, Hamilton, Montana
Kirk Krutilla, Superior, Montana
For Respondent:
Honorable Joseph P. Mazurek, Attorney General;
Kathy Seeley, Assistant Attorney General, Helena,
Montana
Daniel J. Safransky, Deputy County Attorney,
Missoula, Montana
Submitted on Briefs: March 10, 1995
Decided: April 6, 1995
Filed:
Clejrk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
In a trial before the District Court for the Fourth Judicial
District, Missoula County, a jury found Dusty Dennis Brown guilty
of negligent endangerment. He appeals. We affirm.
The issue is whether the District Court erred in denying
Brown's motion for a directed verdict.
On August 3, 1993, Janet Hatt was driving on U.S. Highway 93
northbound from Missoula, Montana, with her two young daughters as
passengers. Hatt heard a gunshot behind her. When she looked in
the rearview mirror, she saw a large mustard-yellow car following
her vehicle. The arm and hand of the front-seat passenger, a man,
were extended from the window on that side, holding a gun.
Hatt saw the shooter fire the gun three more times. It
appeared to her that the shots were being fired at an older blue
car which had pulled over at the side of the road. Although the
gun was not aimed at her, she was frightened for herself and her
daughters.
Speeding up, Hatt looked for a safe place to get off the road.
She stopped at Joe's Smoke Ring, a business located about a mile
from where the shooting occurred. The mustard-yellow car passed
without slowing. Hatt ran into the business and called the 911
dispatcher to notify authorities of what she had seen and heard.
She then drove on toward her destination.
Six minutes later, a Montana Highway Patrol officer stopped a
mustard-yellow Cadillac about six miles north of Joe's Smoke Ring.
Hatt, passing by, saw them. She pulled over and told the officer
2
that the Cadillac was the vehicle from which the shots had been
fired.
Dusty Dennis Brown was sitting in the front passenger seat of
the Cadillac. TWO guns, a 9 mm semi-automatic pistol and an M-l
carbine, were in the back seat of the car, along with ammunition
for both. The magazine of the pistol, which had been fired since
it was last cleaned, was empty. A spent 9 mm casing was found on
the floor on the passenger side of the front seat. Brown denied
shooting from the Cadillac. The driver and two women riding in the
back seat of the car denied knowledge of any shots being fired.
Brown was charged with criminal endangerment, a felony. The
jury was instructed on negligent endangerment, a misdemeanor, as a
lesser included offense. The jury acquitted Brown of criminal
endangerment but found him guilty of negligent endangerment.
Did the District Court err in denying Brown's motion for a
directed verdict?
Our standard of review of a denial of a motion for a directed
verdict 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 offense beyond a reasonable
doubt. State v. Mummey (19941, 264 Mont. 272, 276, 871 P.2d 868,
870.
Section 45-5-208(l), MCA, defines negligent endangerment:
A person who negligently engages in conduct that creates
a substantial risk of death or serious bodily injury to
another commits the offense of negligent endangerment.
3
Brown's argument on appeal relates to only one aspect of the
State's case. According to Brown, § 45-s-208, MCA, requires proof
of a substantial risk of death or serious bodily injury to an
identified individual. Brown contends that the State failed to
produce, as a necessary element of proof for his conviction,
testimony by either the occupants of the blue car or occupants of
the houses along Highway 93 that they were put at risk of death or
serious bodily injury as a result of his conduct.
In creating the statutory offense of negligent endangerment,
Montana's legislature also enacted § 45-5-207, MCA, which defines
criminal endangerment, a felony requiring the mental state of
"knowingly." Ch. 196, L. 1987. The intent was to "plug a hole in
the criminal law" and address conduct such as placing poison into
aspirin in a store. Minutes of the Montana House Judiciary
Committee, February 5, 1987.
Brown lists Montana cases involving prosecutions under the
endangerment statutes, and, in each case, he identifies specific
individuals put at risk by the conduct charged as criminal. Other
than that list of cases, Brown cites no authority for his "identi-
fied individual" argument. More importantly, he cites no authority
for the proposition that, in a prosecution for negligent endanger-
ment, the individual put at risk must personally testify at trial
in support of the State's case.
Hatt testified that there were several homes along Highway 93
on the side of the highway and in the area toward which she saw
shots fired. Her testimony was supported by photographs of the
4
area, taken by a Missoula County Sheriff's Department officer with
whom Hatt returned to the scene of the crime. Hatt's testimony
further identified the occupant or occupants of the blue car as
persons put at risk by the shooting. Additionally, we conclude
that a rational trier of fact could have found beyond a reasonable
doubt that Hatt and her daughters were put at risk of death or
serious bodily injury from the gun fired from the Cadillac as it
proceeded down the highway.
We hold that the State presented sufficient evidence of "a
substantial risk of death or serious bodily injury to another" to
allow this case to be submitted to the jury. We hold that the
court did not err in denying Brown's motion for a directed verdict.
Affirmed.
. i
/BG Chief Justice
We concur:
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
. .
foilowing named:
David E. Stenerson
Attorney At Law
Box 1667
Hamilton MT 59840-1667
KIRK KRUTILLA
P.O. Box 724
Superior, MT 59872
Hon. Joseph P. Mazurek, Attorney General
Kathey Seeley, Assistant
215 N. Sanders
Helena MT 59620
Daniel J. Safransky
Deputy County Attorney
Missoula County Courthouse
Missouia MT 59802
IZD SMITH
rZLERK OF THE SUPREME COURT
STATE OF MONTANA
By: