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State v. Lafley

2/11/1998

Appellant Shane Lafley (Lafley) appeals from the January 9, 1997 judgment and order of the Second Judicial District Court, Silver Bow County. Lafley was convicted of felony assault and sentenced to 10 years in the Montana State Prison plus 2 years for the use of a dangerous weapon pursuant to Section 46-18-221(1), MCA. We affirm.


Lafley raises the following issues on appeal:


1. Did Lafley establish the elements of the defense of justifiable use of force?


2. Did the District Court violate the law by sentencing Lafley to an additional 2 years imprisonment for his use of a dangerous weapon in the commission of the crime?


Factual and Procedural Background


On June 15, 1996, Gerald Carey (Carey) and his wife Chris met several friends, including Dan Lehti (Lehti) and Don Leverton (Leverton), at the Arizona Bar in Butte, Montana. Shortly before midnight, Lafley and two other men, Terry LaVelle (LaVelle) and Immanuel Pausanos (Pausanos), entered the bar and asked Carey and his group for help in jump-starting their vehicle. The Careys refused to help Lafley because he was loud, obnoxious, and seemed intoxicated. Lafley admitted that he had consumed about twelve cans of beer from noon until the time he arrived at the Arizona Bar. The bartender refused to serve Lafley and asked his group to leave.


Lafley asked to use the phone behind the bar and stood on the back of Chris Carey's stool while making his call, bumping and crowding her. When he hung up, the Carey group asked Lafley and his friends to leave the bar. They refused, and Carey and Lehti pushed Lafley, LaVelle, and Pausanos out of the bar. All parties agree that no punches were thrown at this time.


Soon after, the bartender saw Lafley outside attempting to jump-start his car and noticed that one of his group was yelling at patrons as they attempted to come into the bar. The bartender called the police, and Butte police officer Jim Jemmings was dispatched to the scene. Officer Jemmings testified that Lafley and LaVelle seemed intoxicated. Lafley asked the officer if he would jump-start his vehicle, and Officer Jemmings told them to leave their vehicle and walk home or he would arrest them for driving under the influence of alcohol.


While the officer was speaking to Lafley, Carey and his friends attempted to approach them. Officer Jemmings testified that he told the Carey group to stay on their side of the street and that they complied. Officer Jemmings stated that he waited at the scene until the Lafley group had left and that no altercations occurred at that time. However, Lafley testified that Carey punched Pausanos while Officer Jemmings was at the scene, but the officer refused to arrest him.


Lafley, LaVelle, and Pausanos left the scene and proceeded to walk home. At home, Lafley called the 911 police dispatch center and told the operator that he had a 9mm pistol and intended to return to the Arizona Bar and "settle the score." The dispatcher traced the call and sent Officer Jemmings and Lieutenant Jeffrey Miller to speak with Lafley. Lafley admitted that he had made the call, but assured the officers that he did not own a gun and did not intend to shoot anyone. The officers advised Lafley not to return to the bar as it would only create further problems.


Against the officers' advice, Lafley returned to the bar around 1:30 a.m. accompanied by LaVelle's 16-year-old son. Lafley testified at trial that he walked into the bar and asked the bar patrons: "What is your guys's problem?" He testified that Leverton then hit him in the face and pushed him onto a pool table. Lafley stated that Carey came toward him and, as Lafley pushed him a

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