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State v. Fleming

Supreme Court of Montana

October 7, 2019

STATE OF MONTANA, Plaintiff and Appellee,
ROBERT JOSEPH FLEMING, Defendant and Appellant.

          Submitted on Briefs: February 20, 2019

          APPEAL 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.

          For Appellant: Gregory D. Birdsong, Birdsong Law Office, PC, Missoula, Montana.

          For Appellee: Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman, Assistant Attorney General, Helena, Montana.

          Ben Krakowka, Deer Lodge County Attorney, Ellen Donohue, Deputy County Attorney, Anaconda, Montana.



         ¶1 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 conviction;
3. Whether the criminal endangerment statute, § 45-5-207, MCA, is unconstitutionally vague as applied in Fleming's case.

         ¶2 We reverse on Issue Two and remand for a new trial.


         ¶3 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.

         ¶4 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.

         ¶5 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.

         ¶6 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.

         ¶7 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 other purpose.

         ¶8 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.


         ¶9 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 ...

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