City of Missoula v. Walker

370 Mont. 553

311 P.3d 443

CITY OF MISSOULA, Plaintiff and Appellee,

v.Robert Oscar WALKER, Defendant and Appellant.

No. DA 12–0391.

Supreme Court of Montana.

Submitted on Briefs March 27, 2013.

Decided May 14, 2013.

APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC–12–24, Honorable Edward McLean, Presiding Judge.

For Appellant: Wade Zolynski, Chief Appellate Defender, Nicholas Domitrovich, Assistant Appellate Defender, Helena, Montana.

For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana, Jim Nugent, Missoula City Attorney, Andrew Scott, Assistant City Attorney, Missoula, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Pursuant to Section I, Paragraph 3(d), 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 Robert Walker was charged with misdemeanor criminal trespass and misdemeanor partner/family member assault (PFMA). Following a bench trial, he was acquitted of trespass but convicted of PFMA. Walker appeals his PFMA conviction. We affirm.

¶ 3 In June 2011, Walker entered the apartment of his ex-girlfriend Debra Hemmer while she was not at home. He testified that he did this regularly to clean her apartment and to help her in other ways. On this particular day when she returned home, Walker became frustrated with Hemmer because he claimed she was not taking care of herself adequately. He alleged she was intoxicated. He stated that when he spoke to her she looked down instead of at him so he lifted her chin and tapped her on the head to “get her attention.” Hemmer became frightened, told him to leave and called the police. Walker left before the police arrived. When Officer Poling arrived, Hemmer claimed Walker had frightened her and caused her physical pain that she was still experiencing. Following the interview with Hemmer, Poling found Walker on the street. He was arrested and charged shortly thereafter.

¶ 4 In December 2011, Walker and Poling testified at Walker's Municipal Court bench trial. Hemmer did not testify. Poling stated that at the time she responded to Hemmer's call and interviewed Hemmer, she saw no evidence that Hemmer was intoxicated. However, a short time later when she picked up Walker, Walker displayed signs of intoxication. Walker testified that he raised his voice to Hemmer and he might have “hit her kind of hard” but he never intended to hurt her. The court found Hemmer not guilty of criminal trespass but guilty of PFMA. It pronounced sentence from the bench. The sentence was stayed pending appeal of the conviction to the Fourth Judicial District Court. The District Court's two sentence order, containing no factual findings or rationale, denied Walker's appeal and remanded the case for imposition of sentence. Walker filed a timely appeal to this Court. On appeal Walker claims that the evidence before the court was insufficient to support his conviction of PFMA and his conviction should be overturned.

¶ 5 Section 45–5–206(1)(a), MCA, provides: “A person commits the offense of partner or family member assault if the person purposely or knowingly causes bodily injury to a partner or family member.” “Partners” is defined as “spouses ... and persons who have been or are currently in a dating ... relationship....” Section 45–5–206(1)(b), MCA. “Bodily injury” is “physical pain, illness, or an impairment of physical condition and includes mental illness or impairment.” Section 45–2–101(5), MCA. Walker argues on appeal that there was no evidence presented that he “purposely or knowingly” caused Hemmer bodily injury.

¶ 6 As we noted in State v. Bay, 2003 MT 224, ¶ 16, 317 Mont. 181, 75 P.3d 1265, “[a] person's mental state rarely can be proved by direct evidence; it usually must be inferred from the facts and circumstances about which the witnesses testify. Indeed, a defendant's mental state may be inferred from his or her actions and the facts and circumstances connected with the offense charged.” (Internal citations omitted.) See also§ 45–2–103(3), MCA. In Bay, Bay attempted to leave the courtroom after the judge pronounced her in contempt. An officer blocked her exit and Bay pushed the officer very hard and caused the officer to fall back in pain. A struggle ensued and as the officer was attempting to restrain Bay, the officer collapsed in pain when her knee gave out. Bay, ¶ 5. Bay left the courtroom but was arrested a short time later and charged with assault of a peace officer and resisting arrest. Bay, ¶¶ 8–9.

¶ 7 As does Walker, Bay argued that “the State did not present sufficient evidence regarding the requisite mental state for the offense because she did not...