State v. Meyers ( 1995 )

NO. 94-118
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
ROBERT A. MEYERS,
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:
Bethany F. Schendel, Attorney at Law, Great Falls,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Barbara C.
Harris, Assistant Attorney General, Helena, Montana
Brant Light, County Attorney; Michael Fanning,
Deputy County Attorney, Great Falls, Montana
Submitted on Briefs: May 12, 1995
Decided: August 4, 1995
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This is an appeal from a jury verdict in the Eighth Judicial
District Court, Cascade County. We affirm.
The following are the dispositive issues:
I. Was the jury verdict supported by sufficient evidence?
II. Did the prosecutor make improper remarks during his closing
argument such as to necessitate a new trial?
Shelly Migneault (Shelly) testified as follows at the trial:
On April 15, 1993, Shelly returned from the restaurant where she
worked as a waitress at approximately 3:30 a.m. After she returned
home, she turned on the kitchen light, a lamp, the television, and
the VCR. She then changed her clothes and returned to the living
room, where she heard snoring. She looked around and found that
someone was lying behind her couch asleep. Shelly grabbed her
purse and keys and drove to a nearby grocery store where she called
911. Two officers met her at the store and drove back to her
apartment with her. Shelly described the layout of the apartment
and trailed behind the officers until she heard a scuffle begin, at
which time she ran out of the apartment
The testimony of officers John Catlett (Catlett) and Paul
Smith (Smith) established the following: Catlett and Smith entered
Shelly's apartment, walked through the kitchen and dining area, and
into the living room. Catlett, who went first, did not see anyone
in the living room, but as he walked around the couch, Robert A.
Meyers (Meyers) sprang up. At about this time, Smith was
approaching the couch. Meyers lunged at Smith, overturning the
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couch in the process. As Smith struggled with Meyers, Catlett
attempted to assist Smith in getting control of Meyers. Meyers
struggled to free himself.
After Catlett told Meyers to stop struggling, he noticed a
wooden screwdriver handle protruding from Meyers' pocket. Catlett
called for additional assistance on his radio and continued to
restrain Meyers. Finally, Catlett threatened to use his pepper
mace on Meyers and Meyers settled down so that he could be
handcuffed.
The testimony established that an investigation at the scene
showed that all windows and both doors had pry marks on them that
matched the screwdriver found in Meyers' pocket. The marks had not
been on the windows and doors before the incident.
Smith testified at trial that Meyers grabbed his face first,
after lunging across the couch. Smith sustained cuts and abrasions
to the face and strained his back in the struggle with Meyers.
Meyers testified that he did not remember anything from the time he
smoked a marijuana cigarette with a friend until he woke up behind
Shelly's couch. Meyers, who had been living with his brother for
several weeks, also testified that his brother lived next door to
Shelly but that he had never seen her. Meyers stated that when he
woke up he did not know where he was and all he wanted to do was
get out. He said he remembers falling into someone and wrestling
to get free, but he was not aware that they were police. He said
that he stopped struggling when he heard the threat about mace.
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Although Meyers was originally given a citation for resisting
arrest, he was charged by information with felony assault pursuant
to § 45-5-202, MCA, criminal mischief, a misdemeanor, pursuant to
§ 45-6-101, MCA, and criminal trespass to property, a misdemeanor,
pursuant to 5 45-6-203, MCA. On August 23 and 24, 1993, he was
tried in the Eighth Judicial District Court, Cascade County, and
found guilty on all three counts.
On November 12, 1993, Meyers was sentenced to ten years in the
Montana State Prison for felony assault and six months in the
Cascade County Jail for the charges of criminal mischief and
trespass to property misdemeanors. The jail time was to run
concurrently with the prison time and numerous parole conditions
were imposed.
Meyers appeals his conviction.
1.
Was the jury verdict supported by sufficient evidence?
Meyers contends that there were significant contradictions in
the testimony of the two officers and that there was not sufficient
evidence presented at trial to convict him. As a result he
contends that his motion for judgment notwithstanding the verdict
(JNOV) should have been granted by the District Court.
The record indicates that after the State's case-in-chief,
Meyers moved the court to dismiss the charges against Meyers
because the State had not presented enough evidence to support a
prima facie case of felony assault or misdemeanor criminal
mischief. The record also shows that following the jury verdict,
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counsel for Meyers asked the court to "overturn" the verdict. At
no time did counsel ask for a JNOV or, more appropriately, a
directed verdict.
In the course of trial, defense counsel did contend there was
a lack of sufficient evidence. A directed verdict is appropriate
only where there is no evidence upon which the trier of fact could
base a guilty verdict. State v. Henderson (1994), 265 Mont. 454,
877 P.Zd 1013.
At trial, counsel also argued to the court that the State had
not presented a prima facie case. This Court will overturn a
verdict only when after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could not
have found the essential elements of the crime beyond a reasonable
doubt. State v. Arlington (1994), 265 Mont. 127, 875 P.2d 307.
A felony assault will be found when a person "purposely or
knowingly causes bodily injury to . a peace officer." Section
45-5-202, MCA. While Meyers testified that he did not know who the
men were in the room, both officers testified that Meyers came
across the couch at Smith. It was the jury's responsibility to
sort through any inconsistencies in the officers' stories and
Meyers' story. Once evidence is admitted, it is the trier of fact
that has the duty to weigh it and decide which parts it finds
credible. State v. Gollehon (1993), 262 Mont. 1, 864 P.2d 249.
Smith testified that Meyers "lunged" at him and grabbed at his
face. Meyers' own testimony reveals that his only thought was that
he had to defend himself because he thought he was going to get
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beat up. He stated that he had to get out of there. When Officer
Smith's testimony is added to Meyers' testimony and officer
Catlett's testimony that it took two officers to subdue Meyers, the
record shows that substantial evidence exists to demonstrate that
the essential elements of felony assault had been committed.
Further, both officers were in uniform. When asked about his
recognition of this fact, Meyers' only reply was that all he knew
was that he had to get out of there because two guys were going to
beat him up.
A person need not form the specific intent to commit a crime
or intend the result that occurred to be found guilty of knowingly
committing a crime. State v. Blalock (19881, 232 Mont. 223, 756
P.2d 454. It was obvious from Meyers' testimony that he intended
to do what he had to in order to escape.
We conclude that any rational trier of fact could have found
the essential elements of the crimes of which Meyers was convicted
beyond a reasonable doubt. We hold the District Court was correct
in refusing to direct a verdict.
II
Did the prosecutor make improper remarks during his closing
argument such as to necessitate a new trial?
Meyers argues that the State made insinuations during closing
statements that Meyers intended harm to Shelly and that because
these allegations were not founded on any kind of evidence
introduced at trial, the verdict should be reversed. The State
replies that it did nothing but react to statements made during
Meyers' concluding comments.
Counsel for Meyers argued to the jury during closing
arguments:
And when the judge instructs you as to what you're not
supposed to do, sentiment, conjecture, sympathy, you have
to remember in that regards what the defendant is not
charged with and what is not an issue here in this case.
He is not charged with committing or attempting to commit
any crime of violence against Shelly Migneault. With all
due respect, he's not charged with that, is he?
The State then made the following comments during its closing
argument:
The defense attorney also said, for example, that of
things that are not shown that the defendant was not
charged with a crime of violence against Shelly
Migneault. But comments like that can only do one thing,
raise a question in your mind as to what the defendant
was doing there in the first place. Do we have proof as
to why he was there? No. We don't have proof as to why
he was there.
But in the Court's instructions, as you recall, the
Court stated that you can use your common sense, and you
can infer from the defendant's acts what his intent was.
In State v. Staat (1991), 251 Mont. 1, 822 P.2d 643, we held that
a prosecutor may comment on inferences to be drawn from various
phases of evidence. However, we conclude that the prosecution's
statement that the jury could use its common sense to infer from
the defendant's acts what his intent was with regard to Shelly
Migneault was not appropriate.
Appellant must show that prosecutorial misconduct worked to
deprive him of his rights. Staat
, 251 Mont. at 10, 822 P.2d at
648. There is no evidence presented to show that such was the
case. While the State's use of first person singular in several
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statements is unfortunate, the references to what counsel thinks is
irrelevant. The record indicates that the court correctly
instructed the jury of its responsibility.
While such personalized statements of counsel are
inappropriate, they do not automatically work to deprive Meyers of
his rights. Meyers had the responsibility to produce evidence that
the comments by opposing counsel worked to prejudice him. Without
proof of such prejudice, mere allegations are inadequate to warrant
a new trial. State v. Campbell (1990), 241 Mont. 323, 787 P.2d
329. Meyers failed to present any evidence to demonstrate
prejudice.
While the prosecutor should have chosen more appropriate
language, we conclude that his remarks to the jury do not
necessitate a new trial.
Pursuant to Section I, Paragraph 3 cc), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to State
Reporter Publishing Company and West Publishing Company.
Affirmed.
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we concur:
Chief Justice n
August 4, 1995
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
BETHANY F. SCHENDEL
1 -
Attorney at, L;~W
600 Central Plaza, Ste. 18
Great Falls, MT 59401
Hon. Joseph Mazurek
Attorney General
Justice Bldg.
Helena, MT 59620
Brant Light, County Attorney
Michael Fanning, Deputy
Cascade County Courthouse
Great Falls, MT 59401
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA