State v. Lewis ( 1986 )

No. 8 5 - 3 8 4
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
STATE OF MONTANA,
Plaintiff and Respondent,
-VS-
CLYDE LEWIS,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Allen Beck, Billings, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Judy Browning, Asst. Atty. General, Helena, Montana
Harold Hanser, County Attorney, Billings, Montana
Submitted on Briefs: Jan. 23, 1 9 8 6
Decided: March 20, 1 9 8 6
Filed: !'MK 2 U' 1986
-
Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
Appellant, Lewis, appeals from his Yellowstone County
District Court jury trial conviction and sentence of 30 years
in the Montana State Prison.
We affirm.
The issues raised by defendant and a-ppellant are:
1. Whether the District Court erred in granting the
State's motion in limine precluding introduction of evidence
concerning defendant's physical condition?
2. Whether there was sufficient evidence to support the
jury's finding that defendant put his victim in fear of
immediate bodily injury?
3. Whether the District Court's jury instruction on
direct and circumstantial evidence was proper?
4. Whether defendant's sentence is disproportionate to
any reasonable construction of the facts in the case?
On June 8, 1984 at 1:00 a-.m. there occurred a robbery at
a Kwik Way store in Fillings. Defendant, his brother, and
two women spent the evening riding around the city and
drinking. At approximately 1:00 a.m. they stopped at the
Kwik Way. There is conflicting testimony as to what occurred
next.
According to the clerk on. duty that night, and other
State ' s witnesses, defend.antl brother Don entered the store
s
and. a.sked about the price of beer. Don left and returned
with the defendant. Both men went to the cooler and came out
with a case of beer and two bottles of wine.
As the clerk rang up the sale, he noticed. Don go to the
door of the store and look outside. Suspecting that the men
were a b o u t t o s t e a l t h e b e e r and wine, t h e c l e r k r e a c h e d f o r
a h a s e b a l l b a t kept beneath t h e counter. A t t h i s p o i n t Don
s a i d something t o t h e d e f e n d a n t who t h e n r e a c h e d back w i t h
h i s arm, and b r o u g h t h i s arm forward a s i f t o p u t something
under h i s c o a t . With one hand under h i s c o a t , d e f e n d a n t t o l d
t h e c l e r k t h a t h e w a s n Y g o i n g t o pay f o r t h e b e e r and wine
and t h a t he wanted what was i n t h e t i l l . Although t h e c l e r k
n e v e r saw a gun, he t e s t i f i e d t h a t he b e l i e v e d t h e d e f e n d a n t
had a gun and f e l t t h r e a t e n e d . The d e f e n d a n t ' s hand remained
under h i s c o a t t h e r e s t o f t h e t i m e h e was i n t h e s t o r e a s
w e l l a s when he l e f t t h e s t o r e .
While the r o b b e r y was occurring, two men in a truck
pulled i n t o t h e s t o r e ' s parking l o t . The d e f e n d a n t saw t h e
t r u c k and t o l d t h e c l e r k he wanted t h e money f a s t . The c l e r k
emptied t h e t i l l , i n c l u d i n g a marked f i v e d o l l a r b i l l . The
d e f e n d a n t t o o k t h e money and t o l d t h e cl-erk n o t t o l e a v e t h e
store. Don t o o k t h e b e e r and wine 2nd t h e two men f l e d t h e
store.
J e f f Reed, one o f t h e p e r s o n s i n t h e t r u c k , n o t i c e d t h e
defendant running o r w a l k i n g away from t h e s t o r e w i t h one
hand in his coat pocket. The clerk grabbed Reed as he
entered the store, and a s k e d him t o g e t t h e l i c e n s e p l a t e
number o f d e f e n d a n t ' s car. Reed o b s e r v e d t h e l i c e n s e p l a t e
number, t h e c a r ' s make and c o l o r . They f o l l o w e d t h e c a r , b u t
could n o t c a t c h it.
As the defendant and h i s b r o t h e r l e f t the store, and
headed toward t h e i r c a r , one o f th.e women i n t h e c a r , Diana
Loomis, saw t h e d e f e n d a n t hand h i s b r o t h e r some money. The
o t h e r woman i n t h e c a r , Cindy Sawyer, t e s t i f i e d t h a t t h e two
men came r u n n i n g o u t o f t h e convenience s t o r e and b o t h o f
them screamed a t h e r t o g e t o u t o f t h e r e .
After leaving the st-ore, the defendant and his brother
noticed that they were being followed. The brothers then
handed Cindy Sawyer some items which she threw from the car.
Shortly thereafter they were stopped by police. The police
later recovered the beer, wine, and currency thrown from the
car, including the marked five dollar bill.
According to the testimony of defendant and his brother,
who pled guilty to the robbery, the decision to rob the store
was made unilaterally by Don 1,ewis. When the defendant and
Don were at the counter, Don said he would not pay for the
beer and wine and demanded money from the till. The
defendant had nothing to do with initiating or carrying out
the robbery. The reason he placed his hand under his coat
was because of a physical condition causing him pain in the
abdominal area. The defendant was angry with Don for robbing
the store, and the two argued intensely about the robbery
after leaving the Kwik Way.
The first issue raised by the defendant is whether the
District Court erred in granting the State's motion in limine
precluding introduction of evidence concerning the
defendant's physical condition. The defendant claims he
suffers from abdominal problems causing him severe and
continuous pain. He alleges that his physical condition
explains why he had his hand under his coat during the
robbery. Therefore, the evidence was relevant, and granting
the State's motion in limine was prejudicial. to his defense.
Defendant's argument is not persuasive.
First, the District Court did not grant the State's
motion in limine, it was denied. Instead, when the defendant
attempted to elicit testimony from the defendant's mother
concerning the nature of his illness, the State objected to
the relevance of the testimony and the objection was
sustained. Nevertheless, defendant's mother was allowed to
mention throughout her testimony that defendant was ill.
Second, the defendant and his sister were both allowed
to testify concerning the specific nature of his illness, and
the fact that defendant often placed his hand on his side
because of the pain. Defendant further testified that if he
did have one hand on his side during the robbery, it was
because of his illness.
We hold that evidence concerning defendant's physical
condition was relevant, and it was error for the trial court
to sustain the State's objection to the mother's testimony.
?.Jevertheless, the error was harmless. The defendant was
still able to introduce abundant evidence concerning his
physical condition through the testimony of his brother,
sister, and himself. The jury chose not to believe the
defendant, and there is substantial evidence on the record to
support the jury's decision.
Defendant's second issue is whether there was sufficient
evidence to support the jury's finding that the defendant put
his victim in fear of immediate bodily injury. The defendant
was convicted of robbery under 4 5 - 5 - 4 0 1 (1) (b), MCA. That
section states:
A person commits the offense of robbery if in the
course of committing a theft he:
(b) threatens to inflict bodily injury upon any
person or purposely or knowingly puts any person in
fear of immediate bodily injury . . ..
Defendant argues that there was insufficient evidence to
support a finding that he placed the clerk in fear of
immediate bodily injury. We disagree. There is amp1.e
evidence in the record to support such a finding.
The clerk testified that the defendant swiftly place6
h.is hand under his coat and demanded the money in the till..
The clerk stated that he believed the defendant had a gun and
that his life was in jeopardy. The defendant's actions were
sufficient to support the jury's finding that defendant
purposely or knowingly placed the clerk in fear of immediate
bodily injury. The jury may use common experience to
conclude that a particular situation would cause a person to
experience fear. State v. Case (Mont. 1980), 621 ~ . 2 d1066,
1069, 37 St.Rep. 2057, 2059-60. An actual weapon need not be
used. See Criminal Law Commission Comments on 5 45-5-401,
MCA. There was sufficient evidence to support the jury's
conclusion that the defendant placed the clerk in fear of
immediate bodily injury.
The third issue on appeal is whether the District
Court's jury instruction on direct and circumstantial
evidence was proper. The trial court offered the following
instruction regarding circumstantial evidence:
There are two classes of evidence recognized and
admitted in courts in the State of Montana. One is
"direct evidence," and the other is "circumstantial
evidence." In "direct evidence," the witnesses
testify directly of their own knowledge of the main
fact or facts to be proven, while "circumstantial
evidence" is the proof of certain facts and
circumstances in a given case from which the jury
may infer other connecting facts which usually and
reasonably follow according to the common
experiences of mankind.
The defendant objected to this instruction, and instead
offered the following instruction which the trial court
refused to give:
Acts may be proven by circumstantial evidence as
well as by direct testimony of eye witnesses, but
the facts and circumstances in evidence should be
consistent with each other and with the guilt of
the defendant, and inconsistent with any reasonable
theory of the defendant's innocence.
Both direct evidence and circumstantial evidence
are acceptable as means of proof. Neither is
entitled to greater weight than the other.
The trial court refused defendant's instruction because
the case did not hinge upon circumstantial evidence. The
District Court stated:
There were only three people in that store at the
time of the holdup. All three of them have
testified, and that's direct evidence.
We have addressed this issue before in State v. Gould
(Mont. 1985), 704 P.2d 20, 42 St.Rep. 946, and State 77. Bean
(1959), 135 Mont. 135, 337 P.2d 930. In those cases we held
that an instruction such as that proposed by the defendant is
only appropriate where all of the evidence is circumstantial.
Where there is substantial. direct evidence, a district court
may properly refuse to give such an instruction. Gould, 704
P.2d at 31-32; Bean, 135 Mont. at 137.
The District Court instructed the jury on the definition
of direct and circumstantial evidence, and on the equal
weight of each. It was not error for the District Court in
this case to refuse to give defendant's proffered instruction
as there was substantial direct evidence of defendant ' s
guilt.
Finally, defendant argues that his sentence is
disproportionate to any reasonable construction of the facts
in the case. Defendant's sentence was within the permissable
statutory range, and, in the absence of clear abuse of
discretion is properly reviewed by the Sentence Review
Division. Here, there was no abuse of discretion by the
District Court, and this issue is a matter for the Sentence
Review D i v i s i o n , and. n o t t h i s C o u r t . S t a t e v. Beach (Mont.
1.985), 705 P . 2 d 94, 107, 4 2 St.Rep. 1080, 1094.
For t h e r e a s o n s s t a t e d above, we a f f i r m t h e c o n v i c t i o n
and s e n t e n c e o f t h e d e f e n d a n t .
W Concur:
e
.