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                                                                No. 99-271


                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2000 MT 364

                                                             303 Mont. 386

                                                               15 P. 3d 944

                                                  THE STATE OF MONTANA,

                                                      Plaintiff and Respondent,

                                                                      v.

                                                       JAMES GUSTAFSON,

                                                     Defendant and Appellant.

                           APPEAL FROM: District Court of the Eighth Judicial District,

                                                In and for the County of Cascade,

                                The Honorable Thomas M. McKittrick, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                              Chad Wright, Appellate Defender Office, Helena, Montana

                                                            For Respondent:

                                Hon. Joseph P. Mazurek, Attorney General; Ilka Becker,

                                        Assistant Attorney General, Helena, Montana

                      Brant S. Light, Cascade County Attorney; Julie Macek, Deputy County

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                                                   Attorney, Great Falls, Montana

                                            Submitted on Briefs: November 2, 2000
                                                Decided: December 28, 2000

                                                                    Filed:

                                    __________________________________________

                                                                     Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

¶1 The Defendant, James Gustafson, was charged by Information filed in the District
Court for the Eighth Judicial District in Cascade County with felony assault, misdemeanor
partner/family member assault, and unlawful restraint. Gustafson pled not guilty. The jury
found Gustafson guilty of all three counts. The District Court sentenced Gustafson to ten
years in the Montana State Prison with two years suspended for the felony assault
conviction. Gustafson received an additional consecutive two-year sentence for use of a
weapon during the commission of the felony assault and was given consecutive sentences
for the other offenses. Gustafson appeals from evidentiary rulings by the District Court
and from application of the weapon enhancement statute at sentencing. We affirm
Gustafson's conviction but strike the sentence enhancement for use of a weapon.

¶2 The following issues are raised on appeal:

         1. Did the District Court err when it denied Gustafson's motions to exclude
         testimony regarding the events surrounding his arrest?

         2. Did the District Court err when it enhanced Gustafson's sentence for use of a
         weapon?

                                                FACTUAL BACKGROUND

¶3 On April 13, 1998, Michelle Dahl attended a family friend's wedding reception. After
going home and changing clothes, she went to James Gustafson's residence. Because
Gustafson lived outside of Great Falls, Dahl did not arrive at his house until about 11 p.m.

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Dahl and Gustafson had been dating for approximately two years.

¶4 Dahl and Gustafson were sitting on a sofa watching television when Dahl told
Gustafson that his guitar was in her car and that she would bring it inside before she left.
Dahl testified that Gustafson stood up and said "I am so tired of you hurting me," kicked
her in the chest and knocked her backwards on the sofa. Gustafson then hit Dahl, called
her names, and dragged her through the house.

¶5 When Gustafson went to the bathroom to get a washrag for Dahl, Dahl grabbed her
keys from the floor and attempted to escape. As she reached the door, Gustafson grabbed
her and threw her back on the couch. Gustafson told Dahl that he hated her, sat on top of
her and put his knee on her throat, threatening to choke her if she spoke.

¶6 Gustafson then took a shotgun and put it under his chin with his finger on the trigger
and said "I'm going to do it. I'm going to do it." Dahl begged Gustafson not to kill himself.
After a few minutes, Gustafson waived the shotgun around and intentionally fired at the
ceiling. Dahl testified that she thought Gustafson would kill her and then shoot himself.
Throughout this episode, Gustafson also told Dahl he loved her. Dahl repeatedly asked
Gustafson to let her leave.

¶7 After restraining Dahl at his house for approximately four hours, Gustafson agreed to
let her leave but again suggested the possibility of taking his own life. Around 4 a.m.,
Dahl drove home and went to sleep for a few hours before going to work. At work the
next morning, Dahl called the Victim Witness Office. Over her lunch hour, she met with
two deputy sheriffs. She recounted the events of the previous night and handed over keys
she had been given to Gustafson's residence.

¶8 Several officers went to Gustafson's house. They knocked on the door and announced
their presence. After getting no response, the officers entered the house. Deputy Cascade
County Sheriff Jim Panagopolous noticed a loaded shotgun in the foyer. He emptied the
shotgun but noticed another shotgun in the living room. Panagopolous also noticed a rifle,
with ammunition on the chair next to it, in one of the bedrooms. One of the officers
checked the other bedroom door, which was locked. The officers believed that Gustafson
was in the locked bedroom and were concerned that he might have additional weapons.

¶9 The officers went outside and took the weapons with them. Officer Panagopolous
contacted his captain and explained the situation. It was decided that the officers should


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knock out a window in the bedroom where they believed Gustafson was hiding. The
officers threw a brick through Gustafson's bedroom window. As the officers pushed aside
the blinds covering the window, they heard Gustafson yell "What the hell is going on?"
The officers explained their presence and told Gustafson that they needed to talk to him
about the incident with Michelle Dahl. The officers asked him to come out of his house
several times, but Gustafson refused. Gustafson told the officers that he had weapons
inside, but refused to specify what type of weapons. Gustafson told the officers that he
would only talk to his friend Dennis Kuiper.

¶10 After being contacted by the officers, Kuiper arrived at Gustafson's house and talked
to Gustafson through the window. Kuiper and Gustafson then talked on the front porch for
about 30 minutes. Kuiper asked about the hole in the ceiling. Gustafson admitted that he
shot the hole in the ceiling during his fight with Dahl. Finally, Gustafson agreed to go to
the hospital and Kuiper drove him there. Officers arrested Gustafson for domestic abuse
soon after he arrived at the hospital.

¶11 The Cascade County Attorney charged Gustafson with felony assault pursuant to § 45-
5-202(2)(b), MCA (1997), partner/family member assault pursuant to § 45-5-206(1)(a),
MCA (1997), and unlawful restraint pursuant to § 45-5-301, MCA (1997). Gustafson pled
not guilty to the charges. Following a trial, the jury found Gustafson guilty of all three
counts. The District Court sentenced Gustafson to ten years in the Montana State Prison
with two years suspended for the assault charge and added a two-year consecutive
sentence for the use of a weapon pursuant to § 46-18-221, MCA (1997). The District
Court also imposed consecutive sentences for the other two offenses.

¶12 Before trial, Gustafson made a motion to exclude the testimony of Kuiper. Gustafson
argued that testimony concerning the circumstances surrounding his arrest was irrelevant
and unnecessarily prejudicial. The District Court denied the motion subject to relevancy,
stating that "I'll have to wait and hear the testimony." However, the District Court invited
Gustafson to "object anyplace that you think is necessary" during the trial. At trial,
Gustafson's attorney did object to the testimony of Kuiper and Panagopolous as it related
to Gustafson's conduct during his arrest. The District Court overruled these objections.

¶13 Gustafson now appeals from the District Court's evidentiary rulings. Gustafson further
appeals imposition of an additional two-year consecutive sentence for the use of a weapon
in the commission of a felony. We affirm Gustafson's conviction but strike the two- year
sentence enhancement.


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                                                  STANDARD OF REVIEW

¶14 The standard of review for evidentiary rulings in a criminal case is whether the district
court abused its discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257,
1263. The determination of whether evidence is relevant and admissible is left to the
sound discretion of the trial court and will not be overturned absent a showing of an abuse
of that discretion. Gollehon, 262 Mont. at 301, 864 P.2d at 1263.

¶15 We review a criminal sentence to determine whether the sentence is lawful. State v.
Montoya, 1999 MT 180, ¶ 15, 295 Mont. 288, ¶ 15, 983 P.2d 937 ¶ 15.

                                                             DISCUSSION

                                                                 ISSUE 1

¶16 Did the District Court err when it denied Gustafson's motions to exclude testimony
regarding the events surrounding his arrest?

¶17 Gustafson contends that the District Court erred when it denied his motion to exclude
testimony and when it overruled his objections to the introduction of evidence regarding
the events surrounding his arrest. According to Gustafson, his conduct, more than 12 hours
after the altercation with Dahl, had no relation to the charges against him. Therefore,
testimony about the "armed standoff" between Gustafson and the officers at Gustafson's
house was merely calculated to "provoke the jury's instinct to punish people who place
law enforcement officers in such a dangerous position."

¶18 The State argues that the testimony in question was properly admitted as relevant
corroborating evidence which was not overly prejudicial to Gustafson. The State contends
that the testimony Gustafson sought to exclude was directly relevant to proving the felony
assault charge. Moreover, the State notes that Panagopolous merely testified that he saw
numerous weapons when he entered the house while Kuiper made no reference to
weapons other than to say that he observed the hole in the ceiling and that Gustafson
admitted shooting at the ceiling.

¶19 At trial, Gustafson conceded that his conduct toward Dahl constituted partner/family
member assault and unlawful restraint. Therefore, the felony assault charge remained the
only disputed charge at trial. In order to convict Gustafson of felony assault, the State had

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the burden of proving that Gustafson purposely or knowingly caused Dahl reasonable
apprehension of serious bodily injury by use of a weapon. See § 45-5-202(2)(b), MCA
(1997). Relevant evidence is evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more or less probable than it
would be without the evidence. Rule 401, M.R.Evid. Because Kuiper corroborated Dahl's
testimony that Gustafson assaulted her and fired his shotgun into the ceiling, his testimony
was relevant to the felony assault charge.

¶20 Relevant evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Rule
403, M.R.Evid. Having thoroughly reviewed the record, we find no support for
Gustafson's contention that Kuiper's testimony was overly prejudicial. Kuiper testified that
Gustafson admitted shooting a hole in the ceiling with one of his shotguns. That testimony
was relevant because it corroborated important elements of the victim's account.
Consequently, we affirm the District Court's admission of Kuiper's testimony.

¶21 However, except for his testimony that he saw weapons in Gustafson's house, the
testimony of Officer Panagopolous was not relevant because the circumstances
surrounding Gustafson's arrest bore no relation to the incident between Dahl and
Gustafson. We conclude that the testimony was not relevant pursuant to Rule 401, M.R.
Evid., and was therefore inadmissable.

¶22 Nevertheless, even when a district court has abused its discretion by admitting
irrelevant testimony, we will not set aside a conviction on that basis unless the error was
prejudicial. See State v. Lancione, 1998 MT 84, ¶ 24, 288 Mont. 228, ¶ 24, 956 P.2d 1358,
¶ 24. When reviewing error for prejudice, we examine the totality of the circumstances in
which the error occurred. State v. Bower (1992), 254 Mont. 1, 6, 833 P.2d 1106, 1109. We
must determine, based on the record, whether the inadmissable evidence might have
contributed to a conviction. Bower, 254 Mont. at 6, 833 P.2d at 1109.

¶23 In the context of the conduct alleged and admitted, we conclude that description of the
circumstances surrounding Gustafson's arrest was not prejudicial. Notwithstanding
Gustafson's claim to the contrary, Panagopolous did not make any reference to an "armed
standoff" with police, nor did he otherwise unfairly provoke the jury's "instinct to punish."
Gustafson admitted that he committed partner/family member assault and unlawful
restraint and Dahl's testimony provided graphic detail to support the felony assault
conviction. By comparison, the circumstances surrounding Gustafson's arrest were not


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inflammatory. Accordingly, we conclude that the admission of Panagopolous' testimony
was not reversible error.

                                                                 ISSUE 2

¶24 Did the District Court err when it enhanced Gustafson's sentence for use of a weapon?

¶25 Gustafson was convicted of and sentenced for felony assault based on his use of a
weapon, and received an additional sentence for the use of a weapon during the
commission of an offense pursuant to the weapon enhancement statute. The State
concedes that our holding in Guillaume applies to Gustafson's case. This Court held in
Guillaume that application of the weapon enhancement statute to a felony assault
conviction violates the prohibition against double jeopardy found at Article II, Section 25
of the Montana Constitution. State v. Guillaume, 1999 MT 29, ¶ 16, 293 Mont. 224, ¶ 16,
975 P.2d 312, ¶ 16. Therefore, we conclude, as we did in State v. Aguilar, 1999 MT 159, ¶
10, 295 Mont. 133, ¶ 10, 983 P.2d 345, ¶ 10, that the illegal sentence enhancement should
be stricken and the judgment amended to that limited extent.

¶26 The judgment of the District Court is affirmed in part and reversed in part, and this
case is remanded to the District Court for further proceedings consistent with this opinion.

                                                /S/ TERRY N. TRIEWEILER

                                                               We Concur:

                                                     /S/ JAMES C. NELSON

                                                      /S/ KARLA M. GRAY

                                                         /S/ JIM REGNIER

                                               /S/ W. WILLIAM LEAPHART




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