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NO. 83-155 114 THE SUPREME COURT OF THE STATE OF MONTANA 1933
STATE OF MONTANA, Plaintiff and Appellant, -vs-HOWARD EDWARD GREETWELL, Defendant and Respondent.
APPEAL FROM: District Court of the Nineteenth Judicial District, In and for the County of Lincoln, The Ifonorable Robert ?I.Holter, Judge presiding.
COUNSEL OF RECORD: For Appellant: Bon. Mike Greely, Attorney General, Helena, Montana William A. Douglas, County Attorney, Libby, Montana
For Respondent:
Scott B. Spencer, Libby, Montana

Submitted on Briefs: August 4, 1383 Decided: October 6, 1983
Filed: OCT 6- '1983
clerk
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.

This is an appeal of a conviction of two counts of
aggravated assault following a jury trial in the Nineteenth
Judicial District, the Honorable Robert H. Holter presiding.
The appellant was sentenced to serve a period of ten years
in the Montana State Prison on each count, sentences to run
concurrently. In addition, each of the sentences were
enhanced by a two-year term pursuant to section 46-18-221,

MCA, due to the  fact  that  a  weapon  was  involved  in the  
assaults.  The  appellant  was  designated  a  dangerous  
offender.  

The appellant and his family attended a Libby Logger
Days carnival in Libby, Montana, on July 18, 1982.
Appellant drove to the carnival in a 1973 two-door Pontiac
which contained several guns which he was keeping, according
to his testimony, because of a recent burglary of his home.

Appellant testified that earlier in the day he had
gotten into an altercation with Bob Precht and Randy Martin,
a/k/a "Teardrop." At the time of this altercation, the
appellant apparently pulled a pocketknife on "Teardrop" and
he testified that "Teardrop" tried to pull a knife first.
Fortunately, a deputy sheriff was summoned and managed to
stop the argument and sent the appellant home.

According to the appellant's testimony, they returned
to the carnival about 6:00 p.m. at the request of his

children. He testified that he and his wife stayed outside
the carnival grounds while the children went in. At the
time the children were returning to the car, the appellant
testified he had a confrontation with "Teardrop" and that
"Teardrop" stated he was going to get a gun. He testified

that  "Teardrop"  ran  off when the children arrived  at  the  
car.  They then got into the car and started to drive off.  
The appellant testified that as he was driving through  

the gate to the carnival, he saw "Teardrop" with a gun
pointed at him, and that his daughter Eva screamed at him,
"Daddy, he's got a rifle." In addition, his son Howard, Jr.
said, "He's got a rifle. Let's get out of here." He
testified that he jumped out of his car, pulled his rifle
out and at that time, he could see "Teardrop's" gun pointed
at him. He further testified that he consciously pointed
the gun only at "Teardrop." Shortly thereafter, a deputy
sheriff arrived and took away the appellant's rifle.

The State's witnesses tell a considerably different
story. Michelle Taaffe is a thirty-year-old Libby resident
and a mother of one child. On the evening of July 18, 1982,
she was volunteering her time selling watermelons in a Girl
Scout booth at the Libby Logger Days carnival, helping to
raise money for a babysitting co-op. Camilla Leckrone,
another State witness, is a thirteen-year-old eighth grader
who attends Libby Junior High School.

Mrs. Taaffe testified that at approximtely 7:00 p.m. she was getting ready to close down the watermelon stand. The stand was located near the entrance of the fairgrounds. Camilla Leckrone was walking out of the parking lot in the vicinity of the watermelon stand and at that time she
testified she saw a scared, unarmed man running toward her, going toward the entrance to the fairgrounds. She recognized the man as a carnival worker named Randy Martin.
At the same time, a car was coming from the same direction as Martin had been running from, and she testified it pulled directly in front of the watermelon stand. The car stopped and the appellant, Howard Greenwell, pushed a rifle out of the window of the car. She testified that the rifle was pointed at her. Mrs. Taaffe further testified that Randy Martin was running through the entrance of the fairgrounds when the defendant got out of the car with a rifle. Randy Martin had not yet reached a pickup parked in the carnival grounds and she testified that the appellant pointed his gun at her before Randy Martin left her line of sight.
Testimony further indicates as the appellant got out of the car, he raised the rifle to his shoulder, looked Mrs. Taaffe right in the eyes and trained the rifle at her. Mrs. Taaffe testified that the rifle was held on her for several seconds and that it was leveled at her three times. She testified that she was afraid of being shot because it looked to her as though the appellant, who was very close to her, could shoot her and others around her. She was afraid of serious bodily harm. Testimony indicates that she was worried about the children around her and that she felt she should get the youngsters into a vehicle backed up against the watermelon stand and leave the place. She grabbed a friend's little girl and put her in the car and tried to protect a little girl who was standing to her left. This little girl was Camilla Leckrone. According to Mrs. Taaffe,
Camilla was "petrif ied" and "couldn' t move. " Camilla "was crying, her face was all red, her hands were down at her sides, and she was just shaking." At that point, Mrs. Taaffe grabbed Camilla, put her in the back of the car and went directly to the police department.
Camilla testified that as she was leaving the
fairgrounds she saw a dark blue car approach her. The car
stopped, the defendant got out of the car, waved a gun at
the people, and pointed the gun directly at her head. She
testified that the appellant held the gun into his
shoulders, leveled the gun at her, and told her to "get the

out of here." She said the defendant's eyes were
looking at her while the rifle was leveled at her and that
all of this happened at a distance of about twelve feet. In
addition to the testimony of these two women, Vicky
Ericksmoen, a friend who was with Camilla, testified that
the appellant pointed the gun in the direction of Camilla
and Mrs. Taaffe. Jean Richmond, another friend who was with
Camilla, testified that the appellant pointed the gun at her
for three seconds when she startled him.

In addition to the testimony of the women, there was
testimony by the law officers who were in the area. Don
Bernall, a detective for the Lincoln County sheriff's
department testified that he was off-duty and driving past
the Logger Day's carnival after picking up his two children.
He testified he saw the appellant yelling and waving his
rifle in front of the crowd of people. Bernall, fearing for
the safety of his two little boys who were in the car with
him, pulled his car up the road, turned it off and ran back
to the appellant's location. At that point, he observed

another Lincoln County deputy sheriff, Clint Gassett, who had arrived on the scene about the same time and saw him grab the gun (which was pointed up in the air) away from the defendant, disarming him. The weapon was placed in Gassett's car where Bernall examined it and found it to be a British .303 rifle, which was loaded with a round in the chamber, additional rounds in the clip, and the safety was off. At that point, the appellant was placed under arrest and charged with three counts of aggravated assault, At the close of the evidence, the trial court granted the appellant's motion to dismiss count three, the aggravated assault charges involving Randy Martin. The trial judge denied motions to dismiss count one and two, those involving Mrs. Taaffe and Camilla Leckrone because there was sufficient evidence and therefore the matter should go to the jury.
Two issues are presented:
1. Is there sufficient substantial evidence to support the verdict; and 2, Is the evidence consistent with any theory of innocence?
The State notes that the appellant offers two inconsistent propositions for reversal: (1)a total lack of evidence that proves a culpable mental state; and, (2) the circumstantial evidence is as equally consonant with innocence as with guilt, therefore, mandating an acquittal. But since the appellant admitted that a weapon was involved and that both victims were apprehensive of serious bodily injury, the sole issue on appeal is whether the evidence supports the jury's findings that the appellant acted with
the requisite mental state.

It is the respondent's position that the appellant's

intent was proven by the use of circumstantial evidence, and

that the evidence relied on by the jury to convict under the

facts here is susceptible of only one reasonable inter-

pretation --that the appellant knowingly or purposely
caused a reasonable apprehension of serious bodily harm to

the two victims. Finally, the State argues that the

evidence is substantial and more than adequate to support

the verdict.

The statute delineates the offense: "a person commits

the offense of aggravated assault if he purposely or

knowingly causes reasonable apprehension of serious bodily

injury in another by use of a weapon." Section

This Court recently, in the case of State v. Starr

(Mont. 1983), 664 P.2d 893, 40 St.Rep. 796, considered the
statutory words of purposely and knowingly. We noted in

that opinion:

"Occasionally, this Court has referred to
'specific intent' in discussing mental
states since the adoption of the 1973
Criminal Code. Parties and attorneys
should not be misled. It is well to keep
in mind the provisions of the Montana
Criminal Code as explained by Essman, A
Primer on Mental state in the ~ontana
Criminal Code of 1973. 37 Mont.L.Rev.

"The Montana Code used only three
classifications in evaluating the
defendant's mental state: purposely,
knowingly, and negligently. These mental
state classifications are defined in
relation to four objectively measurable
conditions or occurrences: conduct,
circumstances, facts, and result.
However, all four criteria do not apply
to each mental state. 'Purposely,' which
means with a conscious objective, relates

to conduct or result. 'Knowingly,'
defined as 'awareness,' relates to
conduct, circumstances, facts or result.
'Negligently,' relates only to
circumstances and result, thus two
functions are performed in analyzing the
statute which describes an offense.
First, determining which mental state
must be proved, and second, determining
to which of the four conditions or
occurrences the mental states relate."
664 P.2d at 897-8.

In this case, whether the appellant had the requisite

"specific intent" as set forth by our stautes to assault the

victims is a question for the jury. The problem of proving

intent was considered by this Court in State v. Gone (1978),

179 Mont. 271 at 278, 587 P.2d 1291 at 1296:

". . . criminal intent, being a state of mind, is rarely susceptible of direct or positive proof and therefore must usually be inferred from the facts testified to by witnesses and the circumstances as developed by the evidence. The question of intent is a question for the jury." State v. Pascgo (1977), 173 Mont. 121, 566 P.2d 802, 805, citing State v. Cooper (1971), 158 Mont. 102, 489 P.2d 99.
Here, the State's direct evidence proved that the

appellant acted with a culpable mental state, and it was not

necessary to rely on circumstantial evidence.

It is the appellant's position that a reasonable

interpretation of the evidence given at trial, is that the

appellant did not point the gun at the victims. He

testified that any assault against Mrs. Taaffe and Miss

Leckrone were unintentional and excusable. The other

interpretation of the evidence is that the defense was not

established, the assaults upon the victims were deliberate

and were not excusable. Under this view, the circumstances

of the assault clearly prove that the appellant acted with

the requisite mental state. This interpretation established

the appellant's guilt. The appellant argues that the jury was bound to accept the first view and reject the second, simply because the appellant would be found innocent under the former and guilty under the latter.
We have long held that it is up to the jury to resolve conflicts of evidence. It is also up to the jury to give some testimony more weight than others or to discount some testimony altogether. On appeal, we have held that presumptions change. This Court is not a judge of evidence, the jury is. The evidence is weighed on appeal in a light most favorable to the State, and application of the rule to circumstantial evidence does not change that mandate.
Our standard of review on criminal case on appeal is well established. The evidence is examined to determine if the verdict is supported by substantial evidence. See, State v. Merseal (1975), 167 Mont. 412 at 415, 538 P.2d 1366 at 1368; Pascgo, 173 Mont. at 125, 566 P.2d at 805. In State v. Fitzpatrick (1973), 163 Mont. 220 at 226, 516 P.2d 605 at 609, we noted that this Court will not act as a trier of facts. If there is substantial evidence to support a verdict, it will stand.
A careful and thorough consideration of the record convinces us that there is more than sufficient evidence to support the verdict of the jury and the judgment entered thereon. The judgment of the District Court is affirmed.
We concur:
Chief Justice
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