                                                                                           June 24 2014


                                          DA 13-0066

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2014 MT 165N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

YMIR JULE VON KOENIGSBERG-TYRVALDSEN,

              Defendant and Appellant.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. CDC 2011-197
                        Honorable Kathy Seeley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Nancy G. Schwartz, NG Schwartz Law, PLLC, Billings, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss, Assistant
                        Attorney General, Helena, Montana

                        Leo J. Gallagher, Lewis and Clark County Attorney, Lisa Leckie, Deputy
                        County Attorney, Helena, Montana



                                                    Submitted on Briefs: May 28, 2014
                                                               Decided: June 24, 2014


Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, cause number, and disposition shall be included in this Court’s

quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2     Ymir Jule Von Koenigsberg-Tyrvaldsen (Jule) appeals from the judgment of the

Montana First Judicial District Court, Lewis and Clark County, sentencing him to the

Montana Department of Corrections for 5 years, after a jury found him guilty of assault with

a weapon. We affirm.

¶3     Jule’s conviction stems from an altercation over the purchase of a dilapidated trailer

from Mark Lorenz (Lorenz). In October or November of 2010, Jule purchased the trailer

from Lorenz for $1,100, which price included the trailer, a 100-pound propane tank, and

towing the trailer to some Bureau of Land Management (BLM) land adjacent to a mutual

friend’s property. At the time of purchase, Jule put $300 down on the trailer and he paid

additional sums of money in increments throughout the year.

¶4     By July 10, 2011, Lorenz testified, Jule still owed him several hundred dollars. In

addition, Lorenz, who still held the title to the trailer, had received a call from the BLM

telling him he needed to remove the trailer from the public land. Lorenz, with his wife and

sister, decided to go repossess the trailer. When they got to the trailer, Lorenz discovered

that the front jacks had been dismantled and the trailer could not be moved. He sought and

found Jule at the home of the mutual friend who had arranged the deal. Jule said he had paid

in full for the trailer. Jule and Lorenz returned to the trailer. There, Jule called the police;


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parked his car so that Lorenz could not access the trailer hitch; and began either pulling the

lug nuts on the wheels off of the trailer, or (he claimed) putting them back on. Lorenz got

out of his truck, approached Jule, and told Jule to stop dismantling the vehicle. Jule claimed

that at this point Lorenz yelled: “I have title, a handgun, and I will kill you,” but Lorenz

denies making this threat. As Lorenz went to return to his truck he said he heard a sound and

turned around. He said he then saw Jule pull a gun out of his shirt and point it at him.

Lorenz testified that Jule said, “Not another step, or I’ll kill you where you stand.” Although

no shots were fired during this incident, Lorenz drove to safety and called the police. When

questioned by dispatch and law enforcement, Jule twice denied having a gun—but officers

located a weapon when they later searched Jule’s trailer. Jule was charged with assault with

a weapon.

¶5     Before trial, Jule announced his intention to rely on a justifiable use of force defense.

The jury was given a series of pattern jury instructions, offered by Jule, on justifiable use of

force. The jury returned a guilty verdict.

¶6     The only issue properly presented for our review in this matter is whether the State

presented sufficient evidence to sustain Jule’s conviction for assault with a weapon, without

justification. Although Jule also makes arguments about interpretation of the justifiable use

of force statutes and the jury instructions he proposed, these arguments are raised for the first

time on appeal and we will not consider them further. See State v. Norman, 2010 MT 253,

¶ 16, 358 Mont. 252, 244 P.3d 737.

¶7     On appeal, we review the evidence to determine whether, when viewed in a light most

favorable to the State, it is sufficient for a rational trier of fact to have found the State


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rebutted the justifiable use of force affirmative defense. See State v. Crazy Boy, 232 Mont.

398, 401, 757 P.2d 341, 342-43 (1988). When confronted with two versions of the incident

in question, one version which supports acquittal and another which supports a conviction,

the jury must determine which version is reasonable. Crazy Boy, 232 Mont. at 401, 757 P.2d

at 343. We have repeatedly held that conflicting testimony does not render the evidence

insufficient to support a guilty verdict, and determinations of credibility and weight of

testimony are within the exclusive province of the jury. State v. Wood, 2008 MT 298, ¶ 43,

345 Mont. 487, 191 P.3d 463.

¶8     A person commits assault with a weapon if the person purposely or knowingly causes

reasonable apprehension of serious bodily injury in another by use of a weapon or what

reasonably appears to be a weapon. Section 45-5-213(1)(b), MCA. Sections 45-3-102 to

-104, MCA, provide that a person may use force in self defense, in defense of an occupied

structure, or in defense of other personal property. Section 46-16-131, MCA, provides: “In

a criminal trial, when the defendant has offered evidence of justifiable use of force, the state

has the burden of proving beyond a reasonable doubt that the defendant’s actions were not

justified.” The State concedes that Jule has presented sufficient evidence of justifiable use of

force to shift to the State the burden of proving his actions were not justified. To carry its

burden, the State was required to prove that “use of force” or “threat to use force” by

commission of assault with a weapon was not justified in defense of himself or in defense of

personal property in his possession. The question, then, is whether the State carried that

burden. We conclude that it has.

¶9     After hearing testimony from Lorenz and Jule, as well as other witnesses, the jury


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determined that Jule had committed aggravated assault that was not justified. Jule testified at

trial that Lorenz initially threatened to shoot him. When Lorenz supposedly made this threat,

he was not holding a weapon, nor did any evidence confirm that he was able to gain access

to one immediately. Lorenz denied making the statement. Lorenz testified that he saw Jule

pull a gun out of his pants and heard him threaten to shoot Lorenz. His wife confirmed that

Jule had threatened Lorenz with a gun. When this occurred, Jule had called police, who were

on their way. Jule had his car parked so the trailer could not be moved and may have been

removing lug bolts from the trailer’s wheels. Beyond Jule’s contested assertion that Lorenz

threatened him, there was no evidence that Lorenz posed any risk of harm to Jule’s person.

Nor was there any threat to Jule’s property, as Jule had dismantled the trailer hitch and

blocked Lorenz’s access to the trailer with his vehicle. Based on the testimony, the jury

determined Jule’s version of events was not reasonable. We conclude that the evidence

before the jury was sufficient to support its conclusion that Jule was not justified in

brandishing a gun to prevent Lorenz from removing the trailer.

¶10    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for noncitable memorandum opinions. On the

record before it, a reasonable jury could conclude that Jule’s use of force was not justified.




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¶11   Affirmed.

                          /S/ MICHAEL E WHEAT

We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ JIM RICE




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