MONTANA SIXTEENTH JUDICIAL DISTRICT COURT, ROSEBUD COUNTY

STATE OF MONTANA, ) CAUSE NO. DC 96-37

)

Plaintiff, ) RESPONSE TO DEFENDANT’S

) MOTION TO DISMISS FOR

vs. ) FOR LACK OF PROBABLE CAUSE

)

JOSEPH WHITEWOLF, )

)

Defendant. )

REASONABLE APPREHENSION

While the State is required to present evidence to show the victim’s state of mind at the time of the alleged assault, a showing of immediate fear is not the only way to prove “reasonable apprehension”. A victim may be put in a position of being so startled, shocked, or afraid, that his reaction is a delayed one. The reasonable apprehension may be a response that the victim is not instantly aware of but his actions may clearly show that he apprehends the reality of the attack. In LaMere, the victim testified that he brushed off the defendant and hurried back into the store, doing just as the Defendant told him. St. v. LaMere, 190 M 332, 621 P2d 462, 37 St. Rep. 1936 (1980).

In Dean, the Defendant pulled a loaded gun from his pocket, pointed it at the victim, stated that the victim was lucky that he was not shooting the weapon, then lowered the weapon and left the scene. The Defendant contended that hisstatement constituted a conditional threat that demonstrated that he did not have the requisite mental state to complete the crime of felony assault. However, his statement contained no conditions whatever. The victim was not given a condition with which she could comply in order not to be shot, nor was she assured that her luck might not run out before the Defendant lowered the gun and left. Following St. v. Cope, 250 M 387, 819 P2d 1280 (1991), the Supreme Court noted that it is not necessary for an assailant to intend to cause apprehension when committing felony assault--a person need only be aware that such conduct would probably cause that result. The victim’s testimony that she was extremely fearful was sufficient to support the application for leave to file an information. The motion to dismiss it, was properly denied. St. v. Dean, 262 M 189, 864 P2d 781, 50 St. Rep. 1508 (1993).

In Cope, during the process of arrest, the defendant picked up a pistol and began swinging it toward the arresting officer. Defendant claimed his subsequent conviction for felony assault was unwarranted because he was only trying to surrender the pistol and did not knowingly intend to cause apprehension of serious bodily injury. However, it was not necessary for Defendant to cause apprehension. He committed the offense if he was aware that his conduct would probably cause that result. St. v. Cope, 250 M 387, 819 P2d 1280, 48 St. Rep. 949 (1991).

The following analysis of the Court in LaMere is extremely relevant and controlling to the case at hand: “But this Court has never held that a showing of immediate fear is the only way to prove ‘reasonable apprehension.’ We recognize that, as incivil assault, ‘apprehension is not the same thing as fear,’ W. Prosser, Law of Torts Sec. 10 (4th ed. 1971), and we also recognize that a victim may be put in a position, such as the victim testified to here, of being so startled, or shocked, or afraid, that his reaction is a delayed one. The ‘reasonable apprehension’ may be a response that the victim is not instantly aware of, but his actions may clearly show that he apprehends the reality of the attack. Here the victim testified that he brushed off the Defendant and hurried back into the store, doing just as the Defendant told him. Kimble Wiley testified that the victim came running up to him and that ‘he was talking a little rapidly. You know, trying to get it all out at once, you know.’ The victim himself testified to the type of reaction that he had:

‘Q. That is what you told Miss Watts, is that right? A. That I wasn’t scared at the time.

‘Q. Yes. A. Yes.

‘Q. What were you feeling at the time? A. I was just reacting, I wasn’t feeling really nothing. Just that I reacted.

‘Q. After you did have a reaction, what reaction was that? A. That I could have got hurt or killed.

‘Q. Or killed? A. Yes.

‘Q. When did you have that reaction? A. Right after I left the person with the knife.

‘Q. And you went to warn Kimble? A. Yes.’

On the basis of this evidence, we find that the judge correctly denied defendant’s motion to dismiss, and properly submitted the case to the jury. From the testimony concerning the victim’s nonverbal responses and the victim’s own testimonyconcerning his reactions, the jury was able to make a determination that the victim was reasonably apprehensive of serious bodily injury. We will not overturn that finding because we find that it is supported by substantial evidence. State v. Merseal, supra, 167 Mont. At 415, 538 P.2d at 1368.” LaMere, at 336, 337.

The facts of LaMere are substantially the same as the facts before the Court now. Further, as demonstrated by Dean and Cope, as well as LaMere, reasonable apprehension can be proved in a number of ways, which are all questions of fact for the jury to decide. Therefore, Defendant’s motion should be denied.

DATED this _____ day of October, 1996.

________________________________________

LEE R. KERR

ROSEBUD COUNTY ATTORNEY