                                          NO.    83-155

                  1 4 THE SUPREME COURT O THE STATE O F M N A A
                   1                     F               O T N

                                                 1933




STATE O MONTANA,
       F

             P l a i n t i f f and Appellant,

    -vs-

HOWARD EDWARD GREETWELL,

             Defendant and Respondent.




APPEAL FROM:      D i s t r i c t Court of t h e Nineteenth J u d i c i a l D i s t r i c t ,
                  I n a n d f o r t h e County o f L i n c o l n ,
                  The I f o n o r a b l e R o b e r t ? . o l t e r , J u d g e p r e s i d i n g .
                                                       IH


COUNSEL O RECORD:
         F

         For Appellant:

                  Bon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
                  W i l l i a m A. D o u g l a s , County A t t o r n e y , L i b b y , Montana


         For Respondent:

                  S c o t t B.   S p e n c e r , L i b b y , Montana




                                          S u b m i t t e d on B r i e f s :   August 4 ,    1383

                                                              Decided:         October 6 , 1983


Filed:    OCT 6 - '1983



                                                                       --
                                          clerk
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.




        This is an appeal of a conviction of two counts of
aggravated assault following a jury trial in the Nineteenth
Judicial District, the Honorable Robert H. Holter presiding.
The appellant was sentenced to serve a period of ten years
in the Montana State Prison on each count, sentences to run
concurrently.         In addition, each of       the sentences were
enhanced by a two-year term pursuant to section 46-18-221,
MCA, due to the fact that a weapon was involved in the
assaults.       The    appellant was        designated   a   dangerous
offender   .
        The appellant and his family attended a Libby Logger
Days    carnival      in   Libby,   Montana,    on   July    18, 1982.
Appellant drove to the carnival in a 1973 two-door Pontiac
which contained several guns which he was keeping, according
to his testimony, because of a recent burglary of his home.
        Appellant testified that earlier in the day he had
gotten into an altercation with Bob Precht and Randy Martin,
a/k/a   "Teardrop."        At the time of this altercation, the
appellant apparently pulled a pocketknife on "Teardrop" and
he testified that "Teardrop" tried to pull a knife first.
Fortunately, a deputy sheriff was summoned and managed to
stop the argument and sent the appellant home.
        According to the appellant's testimony, they returned
to   the carnival about 6:00         p.m.    at the request of his
children.     He testified that he and his wife stayed outside
the carnival grounds while the children went in.          At the
time the children were returning to the car, the appellant
testified he had a confrontation with "Teardrop" and that
"Teardrop" stated he was going to get a gun.        He testified
that "Teardrop" ran off when the children arrived at the
car.     They then got into the car and started to drive off.
         The appellant testified that as he was driving through
the gate to the carnival, he saw "Teardrop" with a gun
pointed at him, and that his daughter Eva screamed at him,
"Daddy, he's got a rifle."     In addition, his son Howard, Jr.
said, "He's got a rifle.           Let's get out of here."      He
testified that he jumped out of his car, pulled his rifle
out and at that time, he could see "Teardrop's" gun pointed
at him.      He further testified that he consciously pointed
the gun only at "Teardrop."         Shortly thereafter, a deputy
sheriff arrived and took away the appellant's rifle.
         The State's witnesses tell a considerably different
story.     Michelle Taaffe is a thirty-year-old Libby resident
and a mother of one child.     On the evening of July 18, 1982,
she was volunteering her time selling watermelons in a Girl
Scout booth at the Libby Logger Days carnival, helping to
raise money for a babysitting co-op.           Camilla Leckrone,
another State witness, is a thirteen-year-old eighth grader
who attends Libby Junior High School.
         Mrs. Taaffe testified that at approximtely 7 : 0 0   p.m.
she was getting ready to close down the watermelon stand.
The stand was located near the entrance of the fairgrounds.
Camilla Leckrone was walking out of the parking lot in the
vicinity     of   the watermelon   stand and   at that time she
t e s t i f i e d s h e saw a s c a r e d , unarmed man r u n n i n g t o w a r d h e r ,
going       toward        the      entrance          to        the     fairgrounds.             She
r e c o g n i z e d t h e man a s a c a r n i v a l w o r k e r named Randy M a r t i n .

          At     the    same      time,      a   car       was       coming    from    the     same
d i r e c t i o n a s M a r t i n had b e e n r u n n i n g f r o m , and s h e t e s t i f i e d

it p u l l e d d i r e c t l y    i n f r o n t of        t h e watermelon s t a n d .          The
c a r s t o p p e d and t h e a p p e l l a n t ,         Howard G r e e n w e l l ,    pushed      a
r i f l e o u t o f t h e window o f t h e c a r .                She t e s t i f i e d t h a t t h e
r i f l e was p o i n t e d      a t her.         Mrs.         Taaffe further          testified

t h a t Randy M a r t i n was r u n n i n g t h r o u g h t h e e n t r a n c e o f             the
f a i r g r o u n d s when t h e d e f e n d a n t g o t o u t o f            the car with a

rifle.         Randy M a r t i n had n o t y e t r e a c h e d a p i c k u p p a r k e d i n
t h e c a r n i v a l g r o u n d s and s h e t e s t i f i e d t h a t         the appellant
p o i n t e d h i s gun a t h e r b e f o r e Randy M a r t i n l e f t h e r l i n e o f
sight.

          Testimony f u r t h e r i n d i c a t e s a s t h e a p p e l l a n t g o t o u t

o f t h e c a r , he r a i s e d t h e r i f l e t o h i s s h o u l d e r , l o o k e d Mrs.
T a a f f e r i g h t i n t h e e y e s and t r a i n e d t h e r i f l e a t h e r .          Mrs.

T a a f f e t e s t i f i e d t h a t t h e r i f l e was h e l d on h e r f o r s e v e r a l
s e c o n d s a n d t h a t i t was l e v e l e d a t h e r              t h r e e times.       She

testified         that     she     was     afraid         of     being     shot     because       it

l o o k e d t o h e r a s t h o u g h t h e a p p e l l a n t , who was v e r y c l o s e t o
h e r , c o u l d s h o o t h e r and o t h e r s a r o u n d h e r .         She was a f r a i d
of   s e r i o u s b o d i l y harm.         T e s t i m o n y i n d i c a t e s t h a t s h e was

w o r r i e d a b o u t t h e c h i l d r e n around h e r and t h a t s h e f e l t s h e

s h o u l d g e t t h e y o u n g s t e r s i n t o a v e h i c l e backed up a g a i n s t

t h e w a t e r m e l o n s t a n d and l e a v e t h e p l a c e .            She g r a b b e d a
friend's        l i t t l e g i r l and p u t h e r            i n t h e c a r and t r i e d      to
p r o t e c t a l i t t l e g i r l who was s t a n d i n g t o h e r l e f t .                This
l i t t l e g i r l was C a m i l l a L e c k r o n e .      A c c o r d i n g t o Mrs. T a a f f e ,
Camilla was "petrified" and "couldn't move. "                Camilla "was
crying, her face was all red, her hands were down at her
sides, and she was just shaking."                At that point, Mrs.
Taaffe grabbed Camilla, put her in the back of the car and
went directly to the police department.
      Camilla     testified      that    as   she    was    leaving     the
fairgrounds she saw a dark blue car approach her.                 The car
stopped, the defendant got out of the car, waved a gun at
the people, and pointed the gun directly at her head.                   She
testified    that      the   appellant    held      the    gun   into   his
shoulders, leveled the gun at her, and told her to "get the
     out of here."           She said the defendant's eyes were
looking at her while the rifle was leveled at her and that
all of this happened at a distance of about twelve feet.                 In
addition    to   the    testimony of      these     two    women,   Vicky
Ericksmoen, a friend who was with Camilla, testified that
the appellant pointed the gun in the direction of Camilla
and Mrs. Taaffe.       Jean Richmond, another friend who was with
Camilla, testified that the appellant pointed the gun at her
for three seconds when she startled him.
      In addition to the testimony of the women, there was
testimony by the law officers who were in the area.                     Don
Bernall, a detective for the Lincoln County sheriff's
department testified that he was off-duty and driving past
the Logger Day's carnival after picking up his two children.
He testified he saw the appellant yelling and waving his
rifle in front of the crowd of people.            Bernall, fearing for
the safety of his two little boys who were in the car with
him, pulled his car up the road, turned it off and ran back
to the appellant's location.            At that point, he observed
a n o t h e r L i n c o l n County d e p u t y s h e r i f f ,       Clint Gassett,           who
had a r r i v e d on t h e s c e n e a b o u t t h e same t i m e and saw him
g r a b t h e g u n ( w h i c h was p o i n t e d u p i n t h e a i r ) away f r o m t h e

defendant,            disarming           him.         The    weapon       was     placed      in
G a s s e t t ' s c a r where B e r n a l l examined i t and found it t o b e a

British        .303     rifle,     w h i c h was l o a d e d w i t h a r o u n d i n t h e
chamber, a d d i t i o n a l r o u n d s i n t h e c l i p ,         and t h e s a f e t y w a s
off.      At     that point,         t h e a p p e l l a n t was p l a c e d u n d e r a r r e s t
and c h a r g e d w i t h t h r e e c o u n t s o f a g g r a v a t e d a s s a u l t ,    A t the

close       of     the     evidence,             the    trial      court        granted       the
a p p e l l a n t ' s motion t o d i s m i s s count t h r e e ,            the     aggravated

a s s a u l t charges         involving       Randy M a r t i n .         The     trial     judge

d e n i e d m o t i o n s t o d i s m i s s c o u n t o n e a n d two, t h o s e i n v o l v i n g
Mrs.      Taaffe         and     Camilla           Leckrone        because         there      was
s u f f i c i e n t e v i d e n c e and t h e r e f o r e    the matter         should go t o

the jury.

          Two i s s u e s a r e p r e s e n t e d :
          1.       Is    there      sufficient              substantial         evidence       to
s u p p o r t t h e v e r d i c t ; and
          2,      Is     the    evidence         consistent        with      any     theory of
innocence?
          The     State        notes       that        the    appellant           offers      two
inconsistent propositions for reversal:                              (1) a t o t a l l a c k o f

evidence t h a t proves a culpable mental s t a t e ; and,                                (2) the

circumstantial              evidence          is       as    equally      consonant          with
innocence a s with g u i l t ,             t h e r e f o r e , mandating an a c q u i t t a l .

B u t s i n c e t h e a p p e l l a n t a d m i t t e d t h a t a weapon was i n v o l v e d
a n d t h a t b o t h v i c t i m s were a p p r e h e n s i v e o f         serious bodily
injury,        the     sole    i s s u e on a p p e a l is whether              t h e evidence
supports the jury's                findings t h a t the appellant acted with
the requisite mental state.
       It is the respondent's position that the appellant's
intent was proven by the use of circumstantial evidence, and
that the evidence relied on by the jury to convict under the
facts here is susceptible of only one reasonable inter-
pretation        --    that     the    appellant    knowingly   or   purposely
caused a reasonable apprehension of serious bodily harm to
the   two   victims.            Finally,      the   State   argues    that   the
evidence is substantial and more than adequate to support
the verdict.
       The statute delineates the offense:                  "a person commits
the offense of aggravated assault                       if he purposely or
knowingly causes reasonable apprehension of serious bodily
injury      in        another     by    use   of    a   weapon."       Section


       This Court recently, in the case of State v.                      Starr
(Mont. 1983), 6 6 4 P.2d              893, 40 St.Rep. 796, considered the
statutory words of purposely and knowingly.                        We noted in
that opinion:
                 "Occasionally, this Court has referred to
                 'specific intent' in discussing mental
                 states since the adoption of the 1973
                 Criminal Code.     Parties and attorneys
                 should not be misled. It is well to keep
                 in mind the provisions of the Montana
                 Criminal Code as explained by Essman, A
                 Primer o n Mental state in the ~ o n t a n a
                 -----------
                 Criminal Code of 1973. 37 Mont.L.Rev.

                 "The Montana Code used only three
                 classifications    in   evaluating    the
                 defendant's mental state:     purposely,
                 knowingly, and negligently. These mental
                 state classifications are defined in
                 relation to four objectively measurable
                 conditions or occurrences:      conduct,
                 circumstances,    facts,   and   result.
                 However, all four criteria do not apply
                 to each mental state. 'Purposely,' which
                 means with a conscious objective, relates
            to conduct or result.       'Knowingly,'
            defined as 'awareness,' relates to
            conduct, circumstances, facts or result.
            'Negligently,'     relates    only    to
            circumstances and result, thus two
            functions are performed in analyzing the
            statute which describes an offense.
            First, determining which mental state
            must be proved, and second, determining
            to which of the four conditions or
            occurrences the mental states relate."
            664 P.2d at 897-8.
      In this case, whether the appellant had the requisite
"specific intent" as set forth by our stautes to assault the
victims is a question for the jury.           The problem of proving
intent was considered by this Court in State v. Gone (1978),
179 Mont. 271 at 278, 587 P.2d 1291 at 1296:
             ". . . criminal intent, being a state of
            mind, is rarely susceptible of direct or
            positive proof and therefore must usually
            be inferred from the facts testified to
            by witnesses and the circumstances as
            developed by the evidence. The question
            of intent is a question for the jury."
            State v. Pascgo (1977), 173 Mont. 121,
            566 P.2d 802, 805, citing State v. Cooper
            (1971), 158 Mont. 102, 489 P.2d 99.

     Here,      the State's     direct evidence proved         that the
appellant acted with a culpable mental state, and it was not
necessary to rely on circumstantial evidence.
      It   is   the   appellant's      position    that   a   reasonable
interpretation of the evidence given at trial, is that the
appellant did     not   point    the    gun   at   the    victims.   He
testified that any assault against Mrs.              Taaffe and Miss
Leckrone were unintentional and excusable.                    The other
interpretation of the evidence is that the defense was not
established, the assaults upon the victims were deliberate
and were not excusable.         Under this view, the circumstances
of the assault clearly prove that the appellant acted with
the requisite mental state.        This interpretation established
the appellant's guilt.                      The a p p e l l a n t a r g u e s t h a t t h e j u r y

was bound t o a c c e p t t h e f i r s t v i e w a n d r e j e c t t h e s e c o n d ,
s i m p l y b e c a u s e t h e a p p e l l a n t would b e f o u n d i n n o c e n t u n d e r
t h e former and g u i l t y under t h e l a t t e r .
          W e h a v e l o n g h e l d t h a t i t is u p t o t h e j u r y t o r e s o l v e

c o n f l i c t s of    evidence.           I t is a l s o up t o t h e j u r y          t o give
some t e s t i m o n y more w e i g h t t h a n o t h e r s o r t o d i s c o u n t some
testimony          altogether.                 On    appeal,        we    have      held     that
p r e s u m p t i o n s change.        T h i s Court is n o t a judge of e v i d e n c e ,

t h e j u r y is.           The e v i d e n c e i s w e i g h e d o n a p p e a l i n a l i g h t
m o s t f a v o r a b l e t o t h e S t a t e , and a p p l i c a t i o n o f t h e r u l e t o
c i r c u m s t a n t i a l e v i d e n c e d o e s n o t change t h a t mandate.
          Our s t a n d a r d o f r e v i e w on c r i m i n a l c a s e o n a p p e a l i s
w e l l established.               The e v i d e n c e i s e x a m i n e d t o d e t e r m i n e i f
the    verdict          is s u p p o r t e d    by    substantial         evidence.           See,

S t a t e v . M e r s e a l ( 1 9 7 5 ) , 1 6 7 Mont. 412 a t 4 1 5 , 5 3 8 P.2d 1 3 6 6

a t 1368;       Pascgo,          1 7 3 Mont.        a t 125,      566 P.2d        a t 805.       In
S t a t e v.   F i t z p a t r i c k ( 1 9 7 3 ) , 1 6 3 Mont.     220 a t 2 2 6 , 516 P.2d
6 0 5 a t 6 0 9 , we n o t e d t h a t t h i s C o u r t w i l l n o t a c t a s a t r i e r
of    facts.           If    t h e r e is s u b s t a n t i a l   evidence t o support a
v e r d i c t , it w i l l s t a n d .
          A    careful         and    thorough        consideration          of    the     record

c o n v i n c e s u s t h a t t h e r e is more t h a n s u f f i c i e n t e v i d e n c e t o
support t h e v e r d i c t of             the jury         and    the   judgment        entered

thereon.        The j u d g m e n t o f t h e D i s t r i c t C o u r t i s a f f i r m e d .




W e concur:
Chief J u s t i c e   -
