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State v. Cazier

Supreme Court of Montana

October 29, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
ROBERT CAZIER, Defendant and Appellant.

          Submitted on Briefs: August 28, 2019

          APPEAL FROM: District Court of the First Judicial District, In and For the County of Broadwater, Cause No. BDC-2016-41 Honorable Michael F. McMahon, Presiding Judge

          For Appellant: Herman A. Watson, III, Watson Law, P.C., Bozeman, Montana For Appellee:

          For Appellee: Timothy C. Fox, Montana Attorney General, Roy Brown, Assistant Attorney General, Helena, Montana Cory J. Swanson, Broadwater County Attorney, Townsend, Montana

          OPINION

          LAURIE MCKINNON 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 On June 4, 2018, a jury in the First Judicial District Court, Broadwater County, found Robert Cazier (Cazier) guilty of assault with a weapon, in violation of § 45-5-213(b), MCA. The District Court sentenced Cazier to five years with the Department of Corrections, all time suspended, and a $2, 000 fine. Cazier alleges: (1) the District Court erred by denying his motion to dismiss the assault with a weapon charge; (2) the State improperly argued use of force to the jury; and (3) the State erroneously charged assault with a weapon pursuant to common scheme. We affirm.

         ¶3 Renee and David Schiller rented a residence from Cazier and were delinquent on their rent. On July 1, 2016, law enforcement officers executed the eviction and the Schillers loaded their belongings into two vehicles-a Chevrolet Impala and a pickup truck with a horse trailer. After the Schillers loaded their two vehicles, they drove both vehicles off the property but parked the truck and trailer near the property. The Schillers then drove away in the Impala. The officers also left. Cazier remained at the property.

         ¶4 Renee called her father, David Adamson, to tell him about the eviction and ask him to pick up the truck and trailer. David called Cazier's wife, Jane, and asked for permission to retrieve the truck. Cazier was present during this conversation and understood Jane gave David permission and that David would be coming to pick up the truck.

         ¶5 Later that day, David and his wife, Irene, and their grandson, P.S., drove out to the property in a station wagon to retrieve the truck and trailer. David was driving, Irene was in the front passenger seat, and P.S. was in the backseat. They located the truck and trailer, discovered it was locked, and approached the property in their vehicle, thinking that Cazier had the keys. David tried to call Jane but discovered there was no service. As their vehicle approached the residence, David and Irene observed a man, later identified as Cazier, running from the house to his truck. Cazier started his truck and drove quickly down the road toward the Adamsons. David and Irene testified they thought Cazier was going to hit their station wagon, but Cazier swerved at the last second. David rolled his windows down and asked Cazier if he had the keys to the pickup truck and trailer. Before David could finish his question, Cazier began yelling at the Adamsons, using profanities and then "reached down and pulled up a gun." The Adamsons and P.S. testified that Cazier "threatened to shoot" them if they did not get off his property and "had his gun and was waving it around." The Adamsons and P.S. testified that Cazier pulled out the gun and waved it around repeatedly; Cazier appeared to be out of control and upset; and they were afraid Cazier would shoot them. David turned the station wagon around and went back to where the truck and trailer were parked.

         ¶6 Cazier testified he did not wave the gun around, but merely took it out and placed it on the dashboard. Cazier knew it was the Adamsons' station wagon approaching because they had previously visited to pay the Schiller's rent. Cazier also testified he thought he observed someone in the group pick up a firearm from the trailer, before coming towards the house. Cazier explained he did not say he would shoot the group, but rather said that "somebody could shoot you."

         ¶7 Cazier contends the District Court erred when it denied his motion to dismiss the felony charge of assault with a weapon. Cazier argues that he issued a "contingent" threat of force or threat of future harm to the Adamsons and P.S. and such a threat is insufficient to satisfy the use of force element of assault with a weapon. We review a district court's denial of a motion for a directed verdict de novo. State v. Ellerbee, 2019 MT 37, ¶ 13, 394 Mont. 289, 434 P.3d 910 (citation omitted). We review the sufficiency of the evidence in a criminal case to determine whether "after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Ellerbee, ¶ 13 (citation omitted).

         ¶8 Pursuant to § 45-5-213(1)(b), MCA, "[a] person commits the offense of assault with a weapon if the person purposely or knowingly causes reasonable apprehension of serious bodily injury in another by use of a weapon or what reasonably appears to be a weapon." "The crime of assault with a weapon may be established: (1) if a person uses a weapon, or what reasonably appears to be a weapon, to cause reasonable apprehension of serious bodily injury in the victim, or (2) if a person causes reasonable apprehension that the victim will sustain serious bodily injury from a weapon, if it reasonably appears to the victim that a weapon is involved, whether actually seen or not." State v. Smith, 2004 MT 191, ¶ 26, 322 Mont. 206, 95 P.3d 137. The requirements of § 45-5-213(1)(b), MCA, are satisfied by the existence of circumstances which lead the victim to reasonably apprehend that he or she will be injured by a weapon. State v. Swann, 2007 MT 126, ¶ 27, 337 Mont. 326, 160 P.3d 511.

         ¶9 Here, viewed in the "light most favorable to the prosecution," the evidence shows a rational trier of fact could find the Adamsons reasonably apprehended being shot. Ellerbee, ¶ 13. The Adamsons and P.S. consistently testified that Cazier was visibly enraged, waved a gun around, shouted profanities, and threatened that if they did not get off his property he would shoot. The Adamsons testified that based on the sight of the gun and Cazier's appearance and behavior, they were in fear of being shot. A rational trier of fact could have found the requirements of § ...


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