                                No. 87-167
                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1987



STATE OF MONTANA,
                 Plaintiff and Respondent,
         -vs-
RONALD ALBERT KEUP,
                 Defendant and Appellant.




APPEAL FROM:     District Court of the Thirteenth Judicial District,
                 In and for the County of Yellowstone,
                 The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
         For Appellant:
                 Richard J. Carstensen, Billings, Montana
         For Respondent:
                 Hon. Mike Greely, Attorney General, Helena, Montana
                 Joe Roberts, Asst. Atty. General, Helena
                 Harold Hanser, County Attorney, Billings, Montana
                 Brent Brooks, Deputy County Atty., Billings


                                           - -
                                            -




                                   Submitted on Briefs: July 14, 1987
                                     Decided: August 20, 1987

Filed:
           AUG 2 0 1987
Mr. Justice John C. Harrison delivered the Opinion of the
Court.

      Defendant appeals a verdict of misdemeanor    assault,
S 45-5-201(1) (d), MCA, in the District       Court of the
Thirteenth Judicial District in and for       the County of
Yellowstone.   The conviction was the result of a trial de
novo from similar conviction in Yellowstone County Justice
Court. Defendant also appeals the District Court's denial of
a motion for new trial.
      Defendant was fined $500, sentenced to six months in
jail with all but five days suspended and ordered to sell his
firearms and donate the proceeds to charity. We affirm the
District Court.
      Defendant claims on appeal that the District Court
erred when it denied his motion to dismiss the case at
conclusion of State's evidence.    He argues that there was
insufficient evidence on which a reasonable trier of fact
could have found the defendant guilty. He also appeals the
District Court's decision not to allow the defendant to
testify as to buckshot found in the defendant's yard.
Defendant intended to use this evidence to show that he shot
into the ground, not in the direction of the complaining
witness, Carolyn Pederson.
      The facts in this case are relatively simple.       Ms.
Pederson had recently moved to a duplex next to the
defendant.    Ms. Pederson had two dogs, which she left
confined to the backyard while she was at work. On December
23, 1985, Ms. Pederson arrived home at approximately 9:30
p.m. to find the defendant's wife waiting to complain about
the noise of the dogs.       Ms. Pederson proceeded to her
backyard to unleash the dogs so as to put them in the garage
and away from the defendant's property. She testified that
a s s h e was s t a n d i n g n e x t t o t h e l a r g e r dog, s h e t u r n e d around
and saw a r i f l e b a r r e l p r o t r u d i n g from t h e d e f e n d a n t ' s d o o r ,
some t h i r t y y a r d s away.                She l a t e r t e s t i f i e d t h a t a l t h o u g h
s h e c o u l d n o t s e e who was h o l d i n g t h e r i f l e , t h e b a r r e l was
pointed       a t her.            Ms.     Pederson t e s t i f i e d t h e r i f l e was t h e n
fired      and     she heard             a male v o i c e      say,       "This i s m doggie
                                                                                     y
barking.           This i s m doggie barking.
                             y                                   "    She r e t r e a t e d t o h e r
house        and    eventually              authorities         were          summoned       and    the
d e f e n d a n t was a r r e s t e d .
          Another n e i g h b o r , John D a u b e r t , who was g e n e r a l l y aware
of     t h e problem d e f e n d a n t had w i t h t h e d o g s ,                   testified that
when he h e a r d t h e s h o t he t o l d h i s w i f e "he [Keup] p r o b a b l y
s h o t t h e dog."         I n a d d i t i o n , t h e S t a t e c a l l e d Peggy Z i e l i e , a
business         acquaintance of               t h e defendant,           who t e s t i f i e d    that
t h e d e f e n d a n t had asked h e r t o t e s t i f y i n t h i s m a t t e r .                  At
t r i a l s h e s a i d "he had grabbed h i s gun and s h o t a t t h e dog."
          Defendant t e s t i f i e d t h a t he was awakened by t h e n o i s e
of     the    dogs       and       went      to     the    backdoor            to     see   what    was
occurring.             He    testified            that    he    saw       a    "big white          [dog]
l u n g i n g a g a i n s t t h e c h a i n and I c o u l d s e e s h e was r e l e a s i n g
him and he was coming s t r a i g h t t o me                         ...            I was a f r a i d he
was     going t o g e t           loose       and    get out         of       her     control."      He
t e s t i f i e d t h a t he t h e n " f i r e d a s h o t i n t o t h e ground" o u t s i d e
h i s d o o r t o " d i s s u a d e " t h e dog.            He l a t e r t e s t i f i e d t h a t he
d i d not recognize M s .                  Pederson a t t h e t i m e ,              he saw " j u s t a
form,      an o u t l i n e . "         He t e s t i f i e d t h a t he d i d n o t i n t e n d t o
harm M s .      P e d e r s o n , t h a t t h e dog calmed down and he went back
t o bed.
          Defendant was c h a r g e d w i t h v i o l a t i n g S 4 5 - 5 - 2 0 1 ( 1 )             (d),
MCA.      That s u b s e c t i o n r e a d s :
                   A person         commits t h e o f f e n s e o f             assault
                   i f he:
           (d) purposely    or    knowingly   causes
           reasonable apprehension of bodily injury
           in another.      The purpose to cause
           reasonable apprehension or the knowledge
           that reasonable apprehension would be
           caused shall be presumed in any case in
           which a person knowingly points a firearm
           at or in the direction of another,
           whether or not the offender believes the
           firearm to be loaded.
      Defendant's first argument is that the District Court
should have dismissed the case because the State failed to
prove the elements of the crime. This argument is meritless.
The State demonstrated that Ms. Pederson saw a rifle pointed
at her from inside defendant's home, that a shot was fired
and that at the time of the shooting Ms. Pederson was
standing near her dogs.     The State offered evidence from
Daubert and a county sheriff's deputy that the general area
was well lit.      Ms. Zielie's testimony shows that the
defendant admitted he fired at the dogs, near where Ms.
Pederson was standing.
      Section 46-16-403, MCA, entitles the District Court to
dismiss a case at the end of the State's case, or to grant
such a defense motion, when such evidence is insufficient to
support a verdict of guilty. The decision whether to grant a
motion to dismiss lies solely in the sound discretion of the
trial court and that decision will not be disturbed unless an
abuse of judicial discretion is shown.       State v. Gonyea
(Mont. 1987), 730 P.2d 424, 426, 44 St.Rep. 39, 42; State v.
Doney (Mont. 1981), 636 P.2d 1377, 1381, 38 St.Rep. 1707,
1711; State v. White Water (Mont. 1981), 634 P.2d 636, 637,
38 St.Rep. 1664, 1666; State v. Hart (Mont. 1981), 625 P.2d
21, 28, 38 St.Rep. 133, 139, cert. denied 454 U.S. 827, 102
S.Ct. 119, 70 L.Ed.2d 102.
      The District Court did not abuse its discretion. The
evidence offered by the State in this case was sufficient to
convince a rational trier of fact that defendant did fire at
the dog, that Ms. Pederson was standing next to the dog, that
she was aware a shot had been fired in her direction. Such
evidence satisfies this Court's standard of review for
sufficiency of evidence:
           Whether, after viewing the evidence in
           the   light   most   favorable   to   the
           prosecution, any rational trier of fact
           could have found the essential elements
           of the crime beyond a reasonable doubt.
State v. Kutnyak (Mont. 1981), 685 P.2d 901, 910, 41 St.Rep.
1277, 1288-89. See Jackson v. Virginia (1979), 443 U.S. 307,
319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573.
      Defendant asserts the evidence is insufficient since
Pederson claimed she saw a rifle and he testified he fired a
"snakeload" of BB's with a derringer, although there were two
rifles in the house. Defendant claims such a shot from the
derringer would have been harmless thirty feet away.
      Even assuming the defendant is correct in these
assertions of fact, he is still guilty of assault under the
law. Section 45-5-201 (1)(d) makes it an offense to point a
firearm, be it a high powered rifle or a tiny derringer, in
the direction of another, regardless of whether the firearm
is loaded, so as to cause apprehension of bodily injury in
that other person.    The jury may use common experience to
conclude that a person would experience fear in a given
situation. State v. Lewis (Mont. 1986), 715 P.2d 1064, 1067,
43 St.Rep. 492, 495; State v. Case (Mont. 1980), 621 P.2d
1066, 1069, 37 St.Rep. 2057, 2059-60.
      Defendant ' s second basis for appeal is similarly
without merit.     He argues that the buckshot the defendant
later located in his yard is physical evidence capable of
proving the fact that defendant did not fire in the direction
of Ms. Pederson.    He further claims that the testimony of
defendant and another proposed witness is sufficient
foundation for this physical evidence. Such is patently not
the case.
      Section 26-1-201, MCA, vests in the District Court the
authority to admit or to reject any evidence that lacks
proper foundation. State v. Austad (1982), 197 Mont. 70, 94,
641 P.2d 1373, 1386.     Where the proposed exhibit is not
properly linked to the event in dispute, the District Court
is free to refuse admission of the exhibit.    State v. Fox
(Mont. 1984), 689 P.2d 252, 254, 41 St.Rep. 1884, 1886. In
the present case, the District Court concluded that the BB
pellets lacked any probative value since no ballistics tests
were conducted and the pellets could not be tied to the
alleged weapon or the alleged time and place of the incident
except by the defendant's testimony.
      Coupled with the fact that the defendant did not notify
the State of such evidence until less than a week before
trial, the court decided to grant the State's motion in
limine to exclude such evidence. We fail to see any abuse of
discretion by the trial court; defendant attempted to
introduce tangible evidence after the thirty-day notice
period set forth in § 46-15-323(4) (c), MCA, and he was unable
to vouch for it to the trial court's satisfaction.        Such
evidence is properly excludable and does not form any grounds
for a demand to a new trial.
      ~f firmed.
