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State v. Berrington

Supreme Court of Montana

October 15, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
STEVEN MICHAEL BERRINGTON, Defendant and Appellant,

          Submitted on Briefs: September 4, 2019

          District Court of the Second Judicial District, In and For the County of Butte-Silver Bow, Cause No. DC-17-26 Honorable Brad Newman, Presiding Judge.

         For Appellant:

          Quentin M. Rhoades, Nichole L. Siefert, Rhoades Siefert & Erickson PLLC, Missoula, Montana

         For Appellee:

          Timothy C. Fox, Montana Attorney General, Aislinn W. Brown, Assistant Attorney General, Helena, Montana

          Eileen Joyce, Butte-Silver Bow County Attorney, Kelli Fivey, Deputy County Attorney, Butte, Montana

          OPINION

          Mike McGrath, Chief Justice.

         ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

         ¶2 Steven Michael Berrington ("Berrington") appeals from an order of the Second Judicial District Court, Butte-Silver Bow County, whereby the District Court denied his pretrial motion to dismiss the State's Information on grounds that the affidavit supporting the charge of assault with a weapon failed to present probable cause. Berrington also argues on appeal that the State failed to present sufficient evidence at trial to convict Berrington of assault with a weapon. We affirm the District Court's order denying Berrington's motion to dismiss and deny Berrington's alternative argument of failure to present sufficient evidence.

         ¶3 On January 17, 2017, Berrington was arrested for and charged with assault with a weapon pursuant to § 45-5-213, MCA. At the time of his arrest, Berrington was the subject of a fugitive warrant for failure to report to probation and parole. While questioning Berrington at Berrington's son's apartment, Probation Officer Cameron noticed that Berrington was wearing "a black woven style carrier usually used to carry a knife or firearm." During questioning, Berrington had pushed back his coat with his right hand revealing a holster that probation officers later discovered contained a loaded .22 caliber semi-automatic pistol with a bullet in the chamber. Berrington's movement towards the holster led Probation Officer Cameron and Probation Officer Miller, who was also present during the encounter, to become fearful that Berrington was going to use a weapon to harm them. Probation Officer Cameron and other law enforcement officers, after struggling to restrain Berrington, gained control over Berrington and removed the weapon. Berrington was then placed under arrest.

         ¶4 On February 24, 2017, after reviewing the State's affidavit, the District Court determined the State presented probable cause and granted leave to file the Information. On February 27, 2017, the State filed its Information detailing the encounter between Berrington and Probation Officer Cameron. On March 2, 2017, Berrington pled not guilty to the offenses charged in the Information. On October 2, 2017, Berrington filed a motion to dismiss the charge for assault with a weapon for lack of probable cause. On December 6, 2017, after an evidentiary hearing, the District Court denied Berrington's motion, and on February 5, 2018, Berrington was found guilty of assault with a weapon by a jury. On April 16, 2018, the District Court issued its judgment and order of commitment. Berrington now appeals the District Court's denial of his motion to dismiss, and, alternatively, that there was insufficient evidence for the jury to convict him of assault with a weapon.

         ¶5 This Court reviews a district court's denial of a motion to dismiss in a criminal proceeding de novo. State v. Burns, 2011 MT 167, ¶ 17, 361 Mont. 191, 256 P.3d 944. We review a question on the sufficiency of the evidence to determine whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Booth, 2012 MT 40, ¶ 7, 364 Mont. 190, 272 P.3d 89 (citing State v. Azure, 2008 MT 211, ¶ 13, 344 Mont. 188, 186 P.3d 1269). Our review of a jury's verdict to determine whether sufficient evidence exists to support the verdict is de novo. Booth, ¶ 7.

         ¶6 As to the first issue, Berrington maintains that the District Court erred in granting leave to the State to file its Information on the basis that the State's Information charging Berrington and the attached affidavit did not allege facts that would satisfy the essential elements of assault with a weapon under § 45-5-213, MCA. The essence of the defense argument is that Berrington did not actually use, but merely ...


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