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State v. Hart12/14/2000
APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Susan Watters, Judge presiding.
Submitted on Briefs: June 8, 2000
1 David Hart appeals from the conviction and sentence entered by the Thirteenth Judicial District Court, Yellowstone County, sentencing him to 12-years' imprisonment for felony assault. We affirm Hart's conviction, but strike part of his sentence and remand for entry of judgment consistent with this opinion.
2 Hart 's appeal raises the following issues:
3 . Whether the District Court erred when it permitted the State to submit rebuttal testimony?
4 . Whether the District Court erred when it permitted the State to ask Hart whether he believed the State's witnesses were lying?
5 . Whether the State violated Hart's right to a fair trial when presenting its closing arguments?
6 . Whether the District Court erred when it imposed a dangerous weapon sentence enhancement?
BACKGROUND
7 On February 9, 1998, the State filed an Information charging Hart with felony assault. The State alleged that David Hart struck his niece, Shandel Hart, in the face with his fist several times and struck her in the back of the head and shoulder with a cattle prod in violation of § 45-5-202, MCA. Hart pled not guilty and the court appointed counsel. Hart was tried by jury on July 13 and 14, 1998.
8 During Hart's trial, the State presented the testimony of three eyewitnesses to Hart's assault: Shandel Hart, Michelle Floor, and Vanessa Sutton. The State also presented the testimony of the arresting officer, Jason Gartner. Shandel testified that she was at her home on the evening of February 5, 1998, with her 17-year-old ward, Vanessa Sutton; Vanessa's boyfriend, Michael; Shandel's friend, Michelle Floor; and Michelle's three children. Shandel had planned on cutting Michelle's children's hair that evening. Shandel's uncle, David Hart, and his friend, Roy Pearl, stopped by Shandel's house at around 7:30 or 8 p.m. When Hart and Roy arrived, Shandel and Michelle were home alone, the others having left earlier in Michelle's car to buy dinner.
9 Michelle testified that Shandel planned to repay Hart some money she owed him with the money she earned from the haircuts. Michelle owed Shandel $20 for the haircuts but only had a $50 bill. Roy offered to drive Michelle somewhere in order to change the bill. Roy and Michelle drove to the Tap Inn, a nearby bar, leaving Hart and Shandel alone. Shandel testified that after Roy and Michelle departed, Hart showed her a cattle prod that he was carrying in his pocket.
10 About 15 minutes after Michelle and Roy departed, Hart left Shandel's house and walked to the Tap Inn. Michelle testified that Hart entered the bar and sat down next to her and Roy. Michelle bought Hart a drink and gave him the money that Shandel owed him. Michelle testified that Hart made a rude sexual comment to her. She told Hart that she was offended by his comment. Hart then pulled the cattle prod out of his pocket and pointed it at her. Michelle got up, flipped Hart's cowboy hat off his head, moved to the other side of the bar and had another drink. Michelle testified that Hart was incensed. Shortly thereafter, Hart and Roy left the bar without Michelle and returned to Shandel's house.
11 While Hart, Roy, and Michelle were at the Tap Inn, Vanessa, her boyfriend, and Michelle's children returned to Shandel's house. They were watching television when Hart and Roy walked in the door. Shandel testified that Hart had been gone about an hour and a half. Shandel testified that Hart was angry
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