                               NO.    95-320
             IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1997


STATE OF MONTANA,
     Plaintiff and Respondent,
     v.
NEIL HART,
     Defendant and Appellant.




APPEAL FROM:      District Court of the Fourth Judicial District,
                  In and for the County of Missoula,
                  The Honorable Douglas G. Harkin, Judge presiding.



COUNSEL OF RECORD:

             For Appellant:

                  Thomas S. Winsor,    Helena, Montana
             For Respondent:

                  Joseph P. Mazurek, Attorney General, Patricia J.
                  Jordan, Assistant Attorney General, Helena, Montana;
                  Robert L. Deschamps III, Missoula County Attorney,
                  Betty   Wing  Deputy   Missoula   County   Attorney,
                  Missoula, Montana



                                     Submitted on Briefs: June 27, 1996

                                                 Decided: January 9, 1997
Filed:
Justice James C. Nelson delivered the Opinion of the Court.


      Pursuant to Section I, Paragraph 3 (c),                 Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of the Supreme Court and by a report of its

result     to    State    Reporter   Publishing     Company    and   West    Publishing

Company.

      Neil Hart (Hart) appeals his conviction in the District Court

for the Fourth Judicial District, Missoula County,                          of felony

robbery.        We affirm.

      Hart raises the following issues on appeal:

      1.         IS   5   45-5-401,    MCA,     unconstitutionally          vague      and
overbroad?

      2.        Is the definition of "bodily injury" in § 45-2-101(5),
MCA, unconstitutionally vague and overbroad?

      3.    Is "pain"       that is not objectively and empirically proven

sufficient to meet the standard of                  "bodily    injury"      in    5 45-2-

101(5) ,   MCA, and as used in § 45-4-401, MCA?

      4.    Does the alleged assault of a store detective qualify as

an element of robbery?

      5.    Is misdemeanor theft a lesser included offense of robbery?

      6.         Is $125,000 an excessive appeal bond and does the

appellant properly qualify as dangerous under § 46-18-404, MCA?

      7.        Is a 40-year   sentence excessive for the offense charged

considering the appellant's age,               family   responsibilities         and   the

offense?
                                           2
                    Factual and Procedural Background

         On June 8, 1993,    Hart was charged by information with the

offenses of robbery, a felony, in violation of § 45-5-401, MCA, and

theft,    a   felony, in violation of 5 45-6-301, MCA.     The   information

was later amended to substitute a charge of misdemeanor theft for

the charge of felony theft.

         The charges stemmed from an incident occurring on April 23,

1993.      Hart and an accomplice,    Charlene   Collett   (Collett),   were

observed shoplifting in the Bon department store in Missoula.           When

the pair attempted to leave the store without paying for the items

they had in their possession, Jennifer Jordan (Jordan), a security
officer for the Bon, attempted to apprehend them.

         Hart opened the first exit door and was standing in the

vestibule when Jordan approached him.       Collett was standing in the

doorway.      Jordan identified herself as Bon security and showed her

security badge.       Hart pushed Jordan away and as he did so, Jordan

grabbed at his coat.         Hart hit Jordan's arms with his fists to

break her grasp.       As Jordan yelled for a co-worker to help her,

Hart stomped on her foot with his cowboy boot.             Hart broke free

from Jordan and ran out of the store pursued by two                 male store

employees.      Hart ran through an alley and dumped the merchandise he

had stolen into a dumpster before being apprehended.                      The

merchandise was retrieved by a store employee.

         After Hart fled the store, Jordan detained Collett.          Jordan

later complained to the police that she had been assaulted trying

to apprehend Hart.          Hart was 63-years old at the time of this


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incident.        He was 6 feet 2 inches tall and weighed 200 pounds.

Jordan was 5 feet 7 inches tall and weighed 127 pounds.
        Hart was tried by a jury on November 2, 1994.                       He was found

guilty on the charge of felony robbery and not guilty on the charge

of   misdemeanor     theft.       The District Court sentenced Hart to 40

years     at Montana State Prison with 20 years                      suspended.       Hart

appeals his conviction and sentence.
                                        Issue 1.

         Is § 45-s-401, MCA, unconstitutionally                  vague   and    overbroad?
        Hart contends that the inclusion of the                   term   "flight" in the

definition of robbery, § 45-5-401(3), MCA,                  is vague and overbroad

since there is no provision in the law for a cessation of "flight"

and there is no provision to distinguish the intent of the suspect.
A statute is         overbroad when it              impermissibly        infringes    upon

activities or speech protected by the First Amendment.                            State   v.

Martel (1995), 273 Mont. 143, 152, 902 P.2d 14, 20.                         A statute is

void on         its face if it fails to give a person of ordinary

intelligence        fair     notice     that       his   contemplated          conduct is

forbidden.         Martel,    902 P.Zd at 18.            Thus,     the    issue   properly

stated    is:    Whether § 45-5-401, MCA, is unconstitutionally vague as

applied.

         Hart argues that the act of theft was already completed and

that he was not "in flight" at the time Jordan stopped him. Rather

Hart      argues    that     he   and    Collett         were     leaving      the   store

"peacefully,"       as evidenced by Hart making the effort to leisurely

open and hold the door for his cohort as they attempted to exit the

                                               4
Bon.     According to Hart,     the theft being complete, the two had

reached a "safe      harbor" because they were peacefully exiting the

premises from which they had just stolen merchandise.

        While Hart might score points for inventiveness, he cites no

legal authority for his position.           In fact, we conclude that Hart's

"safe    harbor"     has a    shallow   bottom,       indeed.      There   is   no

requirement in the law to which we have been cited that "flight"

from a crime must consist of the sort of running away or chase that

Hart apparently envisions.       Furthermore, we are not about to impose

a requirement that a criminal's flight from the crime scene be

judged by how "leisurely" the accused attempts to or effects his

escape with the loot.

        As we pointed out in State v. Walker (1966), 148 Mont. 216,

419 P.2d 300, "flight"        in legal parlance signifies a leaving or
concealment under a consciousness of guilt and for the purpose of

evading    arrest.      It is the consciousness and the purpose which

gives to the act of leaving its              real    incriminating    character.

Flight from the scene of a crime "requires neither a physical act

of running nor a         far-away   haven."         Walker,     419 P.2d at 306

(citations omitted).         It is only logical that a shoplifter would

want to leave the premises as unobtrusively as possible with his

stolen merchandise; that does not render his exit any less of a

"flight,"    however.     Hart and his accomplice were attempting to

leave the store in a "leisurely" manner so as not to draw attention

to themselves because they were conscious of having just committed

a theft and because of their desire to conceal that fact and avoid


                                        5
arrest.      Hart's arguments to the contrary, he and    Collett were in

"flight" from the scene of the crime when Jordan was assaulted.
       Moreover,     Hart was   still on store premises     when Jordan
attempted to apprehend him.      Hart had concealed on his person items

of store merchandise which he was attempting to remove from the

store.       Whether the assault upon Jordan was committed in the

commission of the theft or in flight after the commission of the

theft is irrelevant as either interpretation of the facts falls

within the robbery statute, which provides in pertinent part:

              (1) A person commits the offense of robbery if in
         the course of committing a theft he:
              (a) inflicts bodily injury upon another;

               i3j l;In the course of committing a theft" as used in
         this section includes acts which occur in an attempt to
         commit or in the commission of theft or in flight after
         the attempt or commission.

Section 45-5-401, MCA (emphasis added).

         Finally,   Hart argues that he did not intend to commit a

robbery,     thus he should not have been charged with that crime.

However,      in Montana one need not     "form the intent to commit a

specific crime . . . to be found guilty of knowingly committing a

crime." State v. Ottwell (1989), 239 Mont. 150, 157, 779 P.2d 500,

504.      Hart only had to be aware that there was a high probability

that his actions against Jordan were prohibited by criminal law.

Hart intended to break free from Jordan's grasp by pushing her,

hitting her and stomping on her foot.          His actions clearly fall

within the robbery statute.




                                      6
                                           Issue 2.
        Is the definition of "bodily injury" in § 45-2-101(5),                            MCA,

unconstitutionally           vague   and    overbroad?

        Hart contends that the definition of "bodily injury" in 5 45-

2-101(5), MCA, is unconstitutionally vague and overbroad.                          However,

Hart fails to support his contentions with any relevant authority,

and his arguments are                completely        without    merit.   As    previously

stated,      a statute   is overbroad when it impermissibly                infringes upon

activities   or   speech     protected     by   the   First    Amendment.       Martel, 902

P.2d at 20.              Thus,   the issue properly stated is:                  Whether    the

definition of              "bodily    injury"         in   §   45-2-101(5),        MCA,     is
unconstitutionally vague as applied.

        Section 45-2-101(5), MCA, provides:

              "Bodily injury" means physical pain, illness, or any
        impairment of physical condition and includes mental
        illness or impairment. [Emphasis added.]

Despite Hart's protestations, "physical pain" is not an ambiguous

term,        as any human being who             has ever suffered such pain is

obviously         aware.     This Court has previously stated that words of

common usage in the English language need not be defined.                           Martel,

902 P.Zd at 18-19.

                                           Issue 3.

        Is    "pain"       that is not objectively and empirically proven

sufficient to meet the standard of "bodily injury" in § 4%2-

101(5),       MCA, and as used in 5 45-4-401, MCA?
        Hart contends that Jordan's pain was not objectively and

empirically proven and was thus insufficient to meet the standard
of "bodily injury" in 5 45-2-101(5), MCA, and as used in 5 45-4-

401,   MCA.   However, there is no requirement that "physical pain" be

empirically proven and once again              Hart fails to cite to any

authority to that effect.

       Jordan testified that she did not pursue Hart out of the store

because of the injury to her foot.         She stated that she was in pain

for several hours after the incident and that she had a bruise on
her foot for about a week.         The testimony of one witness who is

entitled to full credit is sufficient proof of any fact.              State v.

Flack (1993), 260 Mont. 181, 188, 860 P.2d 89, 94. Hart's argument

is without merit.
                                   Issue 4.

       Does the alleged assault of a store detective qualify as an

element of robbery?
       Hart contends that the alleged assault upon Jordan does not

qualify as an element of robbery and the offense should have been

charged under § 45-7-301, MCA, for resisting arrest.             This argument

is also totally without merit.       Section 45-7-301, MCA, prohibits an

individual    from   resisting   arrest   by   preventing   or   attempting   to

prevent a "peace officer" from effecting an arrest.              Jordan is not

a peace officer as defined in § 45-Z-101(53), MCA.

        The robbery statute prohibits the infliction of bodily injury

"upon    another."     It does not make any exceptions for security

personnel     such as Jordan.      Moreover,     when the facts of a case

support a charge of more than one crime, the crime to be charged is
a matter of prosecutorial discretion.            State ex rel. Fletcher v.


                                      8
Dist. Court (1993), 260 Mont. 410, 415, 859 P.2d 992, 995.
                                   Issue 5.

        Is misdemeanor theft a lesser included offense of robbery?

        Hart contends that misdemeanor theft is not a lesser included

offense of robbery.     However,    since Hart concedes that this issue

is moot as he was found guilty of robbery rather than theft, we

need not discuss this issue.
                                   Issue 6.

        Is $125,000 an excessive appeal bond and does the appellant
properly qualify as dangerous under § 46-18-404, MCA?

        In its April 24, 1995 Judgment,        the District Court set an

"appeal bail bond" of $125,000.            However,   on May 10, 1995, the
court entered a written order denying Hart's motion to allow bond
pending appeal, because Hart "poses a danger to the community. . .
 II    Hart contends that this "does not jibe with § 46-18-404, MCA,"

because Hart has not had any other felony convictions within the
past five years.      Hart is confusing the court's denial of bail

pending appeal with designating Hart as a dangerous offender for

purposes of parole eligibility.           Pursuant to § 46-18-404(3), MCA

(repealed 19951,    since the court did not specify a designation of

dangerousness for parole eligibility, it is presumed Hart was

designated    nondangerous.

        The requirement for admitting a defendant to bail pending

appeal is whether the defendant is likely "to flee or pose a danger

to the safety of any person or the community."           Section 46-g-107,
MCA.    At the time of Hart's sentencing, the requirement for finding


                                      9
a defendant a dangerous offender for purposes of parole eligibility

was whether the offender represented "a substantial danger to other
persons or society."     Section 46-18-404,       MCA (repealed 1995).      Thus

a defendant could be designated nondangerous for purposes of parole

eligibility and still be denied bail pending appeal.

        On June 15,    1995,   the District Court entered an order

approving Hart's request for a property bond for the $125,000 bail,

pending appeal.     The court required Hart to post a $10,000 surety
bond and secure the remaining $115,000 of bail with a property

bond.     Hart contends that this is excessive.           The imposition of
bail is within the discretion of the trial court and the amount set

will always be upheld if it is reasonable.           State v. Lance (1986),
222 Mont. 92, 105, 721 P.2d 1258, 1267.              After   considering     the
factors found in § 46-g-301, MCA, regarding the determination of

the amount of bail, we conclude that the District Court did not

abuse its discretion.

                                 Issue 7.

        Is a 40-year   sentence excessive for the offense charged

considering the appellant's age,         family    responsibilities   and    the

offense?
        Hart contends that a 40-year sentence is excessive considering

his age, family responsibilities and the offense committed.                 Once

again Hart fails to cite any authority to support his contentions.

Notwithstanding,    the review of sentences for inequity or disparity

must be conducted by the Sentence Review Division, rather than this

Court,     according to statutes applicable to those proceedings.


                                    10
Petition of Slice (1995), 271 Mont. 337, 338, 896 P.2d 1125, 1126.
     In   summary,   we conclude that none of Hart's arguments are

meritorious.     Not one was    supported by any persuasive   legal

argument or authority as required by Rule 23(a) (4), M.R.App.P.

Were this a civil case, we might well conclude that an award of

sanctions for a frivolous appeal would be in order.    Accordingly,

finding no merit in any of Hart's contentions,        we affirm the

judgment of the District Court.
     Affirmed.




           Justices




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