Submitted on Briefs: February 20, 2019
FROM: District Court of the Third Judicial District, In and
For the County of Anaconda-Deer Lodge, Cause No. DC-2016-11
Honorable Ray J. Dayton, Presiding Judge.
Appellant: Gregory D. Birdsong, Birdsong Law Office, PC,
Appellee: Timothy C. Fox, Montana Attorney General, Tammy A.
Hinderman, Assistant Attorney General, Helena, Montana.
Krakowka, Deer Lodge County Attorney, Ellen Donohue, Deputy
County Attorney, Anaconda, Montana.
An Anaconda-Deer Lodge County jury found Robert Joseph
Fleming guilty of criminal endangerment after he purchased a
half-gallon of 80-proof whiskey for a teenager who drank it
and suffered near-fatal consequences. Fleming raises the
following issues on appeal:
1. Whether the District Court should have set aside the
verdict and entered an acquittal because the State did not
prove the risk requirement of § 45-5-207, MCA;
2. Whether the District Court abused its discretion when it
allowed evidence of Fleming's prior criminal endangerment
3. Whether the criminal endangerment statute, §
45-5-207, MCA, is unconstitutionally vague as applied in
We reverse on Issue Two and remand for a new trial.
AND FACTUAL BACKGROUND
Sometime between January 5 and January 9, 2016,
eighteen-year-old James J. Zenahlik, IV ("J.J.")
contacted a man he knew as "Robby" on his cell
phone to ask him to purchase a half-gallon of Northern Lights
whiskey. Northern Lights whiskey is 80-proof, or 40% alcohol
by volume. J.J. had Robby's cell phone number saved as
"Robby B" in his contacts. J.J. did not know
Robby's last name at the time, but he testified that the
"B" meant Robby was someone who would buy alcohol
for him. J.J. testified that he drove to Robby's house,
picked Robby up, and drove him to the Anaconda Liquor Store.
J.J. parked and gave Robby $20 for the whiskey. Robby
returned with the liquor in a bag inside of his jacket. He
put the bag down on the floorboard behind J.J.'s seat.
J.J. gave Robby a couple of dollars and drove him home. As
Robby exited the car, he told J.J. to "be safe" and
"have a good one." When J.J. got to the house that
he shared with his father, James J. Zenahlik, III
("James"), he placed the bottle of whiskey in the
trunk of his car so that no one would see it.
On January 10, J.J. began drinking the whiskey. James checked
on J.J. the next morning and was unable to wake him. James
called an ambulance, and J.J. was taken to the Anaconda
hospital where he had an alcohol level of approximately .584.
J.J. was intubated and flown to a Missoula hospital for
treatment. When J.J. returned home after a few days in the
hospital, he found the bottle of whiskey, empty, in the trunk
of his car. After J.J. identified Fleming as the person who
bought the whiskey for him, Fleming was charged with criminal
endangerment in violation of § 45-5-207(1), MCA.
Prior to trial, the State gave notice of its intent to offer
evidence of Fleming's 2001 conviction of criminal
endangerment after he provided alcohol to two teenaged girls
who drank it and were involved in a serious car crash. One of
the girls did not survive. The State argued that the evidence
was relevant and admissible to show Fleming's knowledge
of the "very real potential consequences of underage
drinking" and that he "understood the potential
gravity of his actions." Fleming responded that the 2001
incident was too remote in time to be relevant for the
purposes the State argued and that "[s]uch a grim set of
facts is inherently prejudicial to the defendant."
Fleming urged the court to keep the evidence out because it
would distract the jury from the task of weighing the other
evidence, and its prejudice could not be overcome by a
curative instruction. Following a hearing in open court, the
District Court overruled Fleming's objection.
The District Court read the following instruction to the jury
panel prior to voir dire:
Ladies and Gentlemen, the State has requested and the Court
has permitted you, the jury, to hear information pertaining
to a previous act committed by the Defendant. In 2001, Robert
Joseph Fleming pled guilty to the offense of criminal
endangerment. In that matter, the Defendant acknowledged
purchasing and providing alcohol to two teen aged girls. The
girls consumed the alcohol and became intoxicated. One of the
girls subsequently drove a motorized vehicle and the second
girl was the passenger. The teenagers crashed. One girl died
and the second suffered significant physical injuries.
This information of which the Court takes Judicial notice has
been provided and may be only used to aid you, the jury, in
determining whether Mr. Fleming had the requisite mental
state of knowing regarding the possible severe consequences
of his actions. The Defendant is not being tried and may not
be convicted of any offense except for the one currently
charged. The evidence cannot be used during your
deliberations for any other purpose than to determine Mr.
Fleming's mental state of knowing. It is important to
remember this evidence is not admitted to prove the character
of Mr. Fleming or his propensity to commit this offense and
it cannot be used for either reason.
The limited purpose for the admission of this evidence is to
show Defendant's knowledge of the possible consequences
of his actions to help you, the jury, to determine whether
Mr. Fleming is guilty or not guilty of the offense of
Criminal Endangerment. You may not use this evidence for any
other purpose. And it is for you to decide what weight to
give this evidence and whether or not it helps or does not
help you in determining the, the [sic] knowing mental state.
The court reminded the jury in its final instructions at the
close of trial that it had taken judicial notice of
Fleming's prior crime solely for the purpose of showing
knowledge and that the jury could not consider it for any
The jury found Fleming guilty of criminal endangerment.
Fleming moved the District Court to set aside the verdict and
enter judgment for acquittal "based on the State's
failure to prove." The court denied the motion.
We review de novo claims of insufficient evidence. State
v. Bekemans, 2013 MT 11, ¶ 18, 368 Mont. 235, 293
P.3d 843. We review evidentiary rulings for an abuse of
discretion. A trial court abuses its discretion if it acts
arbitrarily without the employment of conscientious judgment
or exceeds the bounds of reason, resulting in ...