
    STATE OF MONTANA, Plaintiff and Respondent, v. THOMAS VAN HAELE, Defendant and Appellant.
    No. 82-481.
    Submitted Sept. 12, 1983.
    Decided Dec. 12, 1983.
    Rehearing Denied Feb. 15, 1984.
    675 P.2d 79.
    
      Wade J. Dahood, argued, Anaconda, for the defendant and appellant.
    Mike Greely, Attorney General, Helena, Harold F. Hanser, County Attorney, Billings, Chris Tweeten, Assistant Attorney General, argued for Respondent.
   The Honorable CHAN ETTIEN,

District Judge, sitting for Mr. Justice Morrison, delivered the opinion of the Court.

The defendant, Thomas Van Haele, appeals from his conviction of aggravated assault, a felony, in the District Court of the Thirteenth Judicial District, Yellowstone County. We affirm the conviction.

The incident leading to Van Haele’s arrest and ultimate conviction occurred on the premises of Shur-gard Mini Storage, a rental warehouse business in Billings, Montana. At closing time on July 31, 1981, Van Haele, using the alias “Bill Hayes,” appeared at the gate leading into the storage buildings and asked if he could have access to his cubicle for approximately five minutes. Robert Westfall, who managed the business with his wife, Mae, agreed to let Van Haele in, and in return, Van Haele gave him five dollars.

The Westfalls had earlier allowed another tenant and friend of theirs, Tim Bender, onto the premises and had given him permission to lock up when he left. Now that Van Haele was also on the premises, Mae Westfall went to find Bender and tell him not to lock the other tenant in. She found Bender and asked him if he had seen the other tenant. Bender replied “yes,” and told her where Van Haele’s cubicle was located. Then, wanting to tell Van Haele to hurry, she went to find his cubicle.

Mae Westfall testified that as she approached Van Haele’s cubicle she noticed the padlock had been removed from the door but the door itself was shut. She knocked on the door and said, “hey you.” There was no response, so she knocked on the door again and hollered, “hey you in there.” Again there was no response and she opened the door. She then saw Van Haele “sitting on the floor with a gun in my face.” She got behind the door and Van Haele came out of the cubicle.

At this time, Bender, who had followed Mae Westfall to Van Haele’s cubicle, asked to look at the gun to see if it was loaded. Van Haele replied, “you’re damned right it’s loaded” and Bender attempted to grab the gun. When he could not easily disarm Van Haele, Bender left and returned to his own cubicle. Mae Westfall had already fled the area.

Van Haele stopped by the office as he was leaving and attempted to speak to Mae Westfall but was told by Robert Westfall that she refused to see him.

On August 11, 1981, the county attorney’s office filed charges against Van Haele for aggravated assault. He appeared before the court the same day and pled not guilty. Trial began on November 10, 1981, and the jury convicted Van Haele. He was sentenced to serve ten years in the Montana State Prison with five years suspended.

Van Haele presents the following issues on appeal:

1. Whether the evidence presented at trial is sufficient as a matter of law to warrant and sustain the verdict of guilty of aggravated assault.

2. Whether the District Court erred in refusing defendant’s instruction explaining the defense of reasonable doubt and failure of the prosecution to establish the requisite proof.

3. Whether the sentence of ten years should be set aside and a new hearing on sentence be conducted since the trial court considered the conviction and fifteen year sentence of Thomas Van Haele for the crime of possession of dangerous drugs with intent to sell which arose out of the instant case and which was reversed by this Court on August 23, 1982 (See State v. Van Haele (Mont. 1982), [199 Mont. 522], 649 P.2d 1311, 39 St.Rep. 1586).

With regard to the first issue, Van Haele contends that the evidence fails as a matter of law to support the jury verdict of guilty on the charge of aggravated assault. More specifically, he contends that: 1) the evidence fails to show that Mae Westfall was placed in reasonable apprehension of serious bodily injury as a result of his actions; and 2) the evidence fails to show that he acted purposely or knowingly in causing that result.

Van Haele contends that Mae Westfall was not fearful or apprehensive when she opened the door and saw him with a gun because she immediately said, “what the hell are you doing with that gun?” In addition, he points out that she did not scream or cry for help.

As for his own actions, Van Haele contends that he was in his cubicle when the door was suddenly opened, surprising him. He contends that he did not knowingly or purposely point the gun at any person, but because of the height of the cubicle, only four feet, he was forced to be in a stooped position, and in exiting from a kneeling position, it may have appeared that he pointed the gun at Mae Westfall.

The State contends that the jury duly considered the conflicting evidence presented to them in relation to whether Mae Westfall was placed in reasonable apprehension and whether Van Haele acted purposely or knowingly, and that they weighed this evidence before reaching their verdict. Therefore, they contend that this Court should be reluctant to substitute its judgment for that of the jury.

It has been recognized by this Court as a fundamental rule of law that questions of fact must be determined solely by the jury, and that given a certain legal minimum of evidence, this Court, on review, will not substitute its judgment for that of the jury. State v. Pendergrass (1978), 179 Mont. 106, 118, 586 P.2d 691, 697-8; State v. Merseal (1975), 167 Mont. 412, 415, 538 P.2d 1366, 1367-8, and cases cited therein.

The standard of legal sufficiency is whether the verdict is supported by substantial evidence. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” In reviewing the evidence to determine whether substantial evidence exists, this Court will view the evidence in the light most favorable to the State. Pendergrass, 179 Mont, at 118; Merseal, 167 Mont. 415-6.

At trial, the State produced testimony that Mae Westfall opened the door to Van Haele’s cubicle and found a loaded .38 pistol pointed at her face from a distance of one foot away. Mae Westfall testified that she was scared and that she felt terrible as she was looking at the gun, so terrible, in fact, that she couldn’t even move.

Van Haele, on the other hand, never offered Mae Westfall an innocent explanation for his conduct when he had the chance to do so. When Mae Westfall asked him what he was doing with a gun, his only reply was, “who in the hell are you?”. In addition, when Van Haele stopped at the office on his way out, Robert Westfall testified that Van Haele’s attitude was not contrite, but rather was “belligerent.”

Although Van Haele testified that he did not intentionally point the gun at Westfall, and that he had no intention to frighten her, the jury was free to consider all evidence presented and to pick and choose which of the witnesses it wished to believe. State v. Swazio (1977), 173 Mont. 440, 445, 568 P.2d 124, 127 State v. Fitzpatrick (1973), 163 Mont. 220, 226, 516 P.2d 605, 609. The jury may also use circumstantial evidence to determine the existence of a particular mental state. That is, they may infer the mental state from what the defendant does and says and from all the facts and circumstances involved. State v. Pierce (Mont. 1982), [199 Mont. 57,] 647 P.2d 847, 850-51,39 St.Rep. 1205, 1209. Based on the foregoing principles, we find that the record contains substantial evidence to support the finding that Van Haele purposely or knowingly caused Mae Westfall reasonable apprehension of serious bodily injury.

In conjunction with this issue, Van Haele contends that even if this Court should find substantial evidence to support the jury’s verdict, the conviction is still improper as a matter of law. Van Haele argues that under section 45-3-104, MCA, he had a right to use force to defend his property. However, a scrutiny of the record reveals that the issue of justification was never raised at the trial level.

It is a well settled rule that on appeal, this Court will consider for review only those questions raised in the trial court. State v. Campbell (Mont. 1981), 622 P.2d 200, 38 St.Rep. 19 ; Armstrong v. State (1977), 172 Mont. 552, 562 P.2d 1129. As the issue was not raised in the trial court, we will not consider it further on appeal.

As his next issue, Van Haele contends that his proposed instruction No.7 explaining reasonable doubt and the prosecution’s burden of proof should have been given to the jury. Van Haele contends that the instruction was necessary in order for the jury to understand his defense based on the failure of the prosecution to establish the requisite proof.

The State contends that the instruction was properly refused by the trial court in that: 1) the last sentence of the instruction told the jury “unless you find beyond a reasonable doubt that the defendant is guilty of the offense charged, your verdict should be ‘not guilty;’ ” which is an incorrect statement of the law, and; 2) substance of the refused instruction was covered by other instructions given by the court, so that the defendant’s ability to argue his theory to the jury was not impaired. (Emphasis added.)

This Court has consistently held that the District Court need not give repetitious instructions nor instruct on every nuance of a theory of defense. State v. Graves (Mont. 1981), 622 P.2d 203, 210, 38 St. Rep. 9, 16, and cases cited therein. The court gave nine instructions discussing burden of proof and presumption of innocence, including instructions that the State was required to prove every element of the charge; that the prosecution bore the burden of proof; that the defendant is presumed innocent; and that in case of reasonable doubt the defendant is entitled to an acquittal. The important elements of the refused instruction were contained in the other instructions given by the District Court, therefore it was not error for the District Court to refuse Van Haele’s proposed instruction No. 7 or a corrected version of the instruction.

Finally, Van Haele contends that the District Court erred in considering a drug charge on which he had been convicted, but was later reversed by this Court in State v. Van Haele (Mont. 1982), [199 Mont. 522,] 649 P.2d 1311, 39 St.Rep. 1586. Van Haele cites State v. Olsen (Mont. 1980) , 614 P.2d 1061, 37 St.Rep. 1313, where this Court held that a defendant is entitled to have his sentence predicated on substantially correct information, and where improper matters are considered by the sentencing court, a defendant has a right to be resentenced. However, this Court has also recognized that if it is obvious from the record that the judge did not rely on the infirm conviction and the sentence would not have been different had the judge disregarded the prior conviction, this Court will find no prejudice to the defendant. Fitzpatrick v. State (Mont. 1981) , 638 P.2d 1002, 1015, 38 St.Rep. 1448, 1462. At sentencing, the District Court stated:

“So far as the charge of which you were found guilty in this Court, you have been sentenced on that drug charge and I think hat sentence must stand on its own in that particular case.”

The court made no further reference to the drug case.

The judgment reflects that the court based its sentence on the facts set forth in the presentence report, the defendant’s past history, and his chemical dependency, not the drug conviction. Therefore, we find no prejudice to Van Haele and his sentence is upheld.

The judgment and sentence are affirmed.

MR. CHIEF JUSTICE HASWELL, and MR. JUSTICES SHEA, WEBER, GULBRANDSON and HARRISON concur.  