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State v. Mckimmie6/7/1988
Submitted on Briefs April 28, 1988.
Defendant McKimmie appeals his September 23, 1987, bench convictions in the Eighth Judicial District Court, Cascade County, for deliberate homicide, burglary, theft and evidence tampering. McKimmie was sentenced to one hundred years in the Montana State Prison for deliberate homicide, ten years for burglary, ten years for tampering with physical evidence, and ten years for use of a dangerous weapon, with the sentences to run consecutively. McKimmie was also sentenced to six months in the Cascade County jail for misdemeanor theft, to run concurrently. McKimmie was designated a nondangerous offender. We affirm the convictions.
McKimmie raises two issues for our review:
1. Does sufficient evidence support McKimmie's conviction of deliberate homicide?
2. Does sufficient evidence support McKimmie's conviction of burglary, theft and tampering with physical evidence?
At 2:07 a.m. on June 6, 1987, the police dispatcher in Great Falls received a call from a woman asking for help. Upon questioning, she stated that her husband had shot her with a rifle. She also stated that her husband had taken the rifle and fled in a 1976 Ford Pinto.
The dispatcher stayed on the line for several minutes until a police officer arrived at the victim's apartment. The officer found the victim, Valarie McKimmie, lying on the couch with a telephone in her hand. She had a two-inch hole in her chest. The officer hung up the phone and immediately tried to stop the bleeding by applying direct pressure to the wound. A second officer soon arrived and assisted until the ambulance arrived. The second officer asked Valarie who had shot her. She replied: "My husband." The officer then asked for her husband's name, and she replied: "Ronald."
Valarie was transported to Deaconess Medical Center in Great Falls. The police were unable to get any further statements from her. Valarie died as a result of the gunshot wound on June 11, 1987.
McKimmie was subsequently charged with deliberate homicide, burglary, theft and evidence tampering. Trial was held on September 22, 1987. Prior to presenting his case-in-chief, McKimmie stipulated to the following facts: McKimmie shot Valarie with a rifle belonging to Eugene Ameline. Following the shooting, McKimmie left the rifle alongside Interstate 15 south of Great Falls. McKimmie then drove to Salt Lake City, where he was arrested for DUI by a Utah Highway Patrol officer in the afternoon of June 6, 1987. McKimmie told the arresting officer that he had shot his wife in Montana.
Issue 1. Deliberate Homicide.
The District Court convicted McKimmie of deliberate homicide as defined in Section 45-5-102(1)(a), MCA (1985): "Criminal homicide constitutes deliberate homicide if: (a) it is committed purposely or knowingly." At sentencing, the District Court told McKimmie: " ou laid in wait for her until she came home, and you deliberately shot her. She was still holding her purse, and one of the shells penetrated the metal clasp on the purse and went into her chest, which indicates to me that this is deliberate homicide of the worst type."
However, McKimmie contends that the shooting was accidental and that the State did not prove he acted purposely or knowingly in causing Valarie's death.
Our standard of review on sufficiency of evidence is whether the evidence, when viewed in a light most favorable to the prosecution, would allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Kutnyak (Mont. 1984), [211 Mont. 155,] 685 P.2d 901, 910, 41 St.
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