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State v. Hocevar6/19/2000
on or process of any bodily member or organ" was also an applicable definition. While the jury could have convicted Susan under either statutory definition of "serious bodily injury," we have no way of knowing on which definition the jury relied.
In conclusion, a "crime of violence" is a crime in which the offender causes a serious bodily injury. Given the various options that were given to the jury, we cannot tell from the jury's verdict whether it found that Susan actually caused a "substantial risk of death" or whether she merely caused the risk of "serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ." In light of the uncertainty inherent in the definitions and the verdict, the District Court erred in concluding that Susan had committed a "crime of violence."
We hold that the District Court erred in refusing to classify Susan a first-time, nonviolent felony offender for sentencing purposes. We reverse on this issue and remand for resentencing consistent herewith.
Issue 11
Whether Susan's renewed motion to dismiss counts III, IV, and V based on double jeopardy grounds was properly denied.
The denial of a motion to dismiss in a criminal case is a question of law. See State v. Weaver, 1998 MT 167, 43, 290 Mont. 58, 43, 964 P.2d 713, 43 (citations omitted). Our standard of review of a district court's conclusions of law is plenary and we will review the court's conclusions of law to determine whether those conclusions are correct. See Weaver, 43 (citations omitted).
a. Whether Susan's motion to dismiss counts III, IV, and V for insufficiency of the evidence should have been granted, barring further prosecution pursuant to § 46-16-403, MCA.
Susan argues that the District Court abused its discretion in denying her motion to dismiss counts III, IV, and V (motion for directed verdict of acquittal) on the basis of insufficiency of the evidence. She maintains that the court should have ordered a directed verdict of acquittal on the charges relating to Mathew's death and that such a verdict would bar further prosecution as to those counts. The State argues that the court did not abuse its discretion in denying Susan's motion because, as the District Court noted in denying the motion, the court had already considered and ruled against Susan's insufficiency of the evidence claim several times and did not see a reason to reverse its rulings at that juncture.
A district court should grant a motion for directed verdict of acquittal only when there is no evidence whatsoever to support a guilty verdict. State v. Campbell (1996), 278 Mont. 236, 246, 924 P.2d 1304, 1310-11 (citation omitted). A defendant is entitled to an acquittal " 'if reasonable men could not conclude from the evidence taken in a light most favorable to the prosecution that guilt has been proved beyond a reasonable doubt.' " State v. Bromgard (1993), 261 Mont. 291, 293, 862 P.2d 1140, 1141 (citation omitted).
Here, although Susan points to testimony suggesting a contrary finding and notes that she challenged the admissibility of some of this evidence, she acknowledges in her Brief that some of the evidence presented at trial supported the State's theory that Susan smothered Mathew. Dr. Gary Dale testified that in his opinion the cause of Mathew's death was smothering. Further, our review of the transcript shows that Dale based his conclusion "on a comprehensive review of all the records, the interviews, a very large amount of data." Southall testified that "it is my opinion that [Mathew] was suffocated by his mother." The fact that there is conflicting evidence
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Montana DUI Attorneys
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