As part of a plea agreement reached with the state Attorney General’s Office, a Helena man accused of threatening restaurant employees with a gun after being repeatedly asked to wear a face covering will admit to disturbing the peace and pay a $50 fine.
Rodney Robert Smith was previously charged with felony assault with a weapon, which carried a possible prison sentence of up to 20 years and a $50,000 fine if he was convicted. Smith was also charged with three misdemeanors — assault, carrying a concealed weapon and carrying a concealed weapon in a prohibited place.
Montana Attorney General Austin Knudsen’s office in August directed the Lewis and Clark County attorney to drop the two misdemeanor conceal-carry charges. After County Attorney Leo Gallagher said he had probable cause and could not dismiss those charges and still "comply with my oath of office," Gallagher then requested the case be reassigned and the Attorney General’s office took over.
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In filings shortly after the Attorney General's Office assumed the case, Smith's attorney, Palmer Hoovestal, indicated the parties were involved in settlement talks and an agreement was likely. A trial scheduled for the end of August was called off.
The charge Smith will admit to in the plea deal was not part of the original charges, but an amendment to the misdemeanor assault charge.
In the plea agreement, Smith admits he “quarreled with a staff member of the restaurant and knocked over all the water glasses on a table where he and others were seated when the staff member told them to leave the restaurant for not wearing masks.”
That happened Nov. 6, 2020, when Montana was under a statewide mask requirement.
An affidavit dated Nov. 27, 2020, includes Smith knocking over water glasses.
The affidavit also said Smith’s wife told a Helena Police Department officer her husband shoved a staff member at the restaurant, causing the employee pain. The staff member told police he tried to detain Rodney Smith, who then struck the staff member “in the genitals several times and pinned that staff member to a wall.”
After that, according to the affidavit, Smith exposed his handgun and said "I’m going to get you" to the employee.
Smith signed the plea agreement Nov. 8 and Derek Oestreicher, general counsel for the Attorney General’s Office, signed it Wednesday, the day it was filed in Lewis and Clark County District Court. Smith’s attorney also filed a motion Wednesday to set a change of plea hearing.
While the Attorney General’s Office did not return an email Wednesday seeking information about the status of the case or requesting comment about the plea deal, Hoovestal did return a message seeking an update.
“ … The truth is that this is the appropriate disposition of the matter under the facts of the case, and is the proper exercise of prosecutorial discretion,” Hoovestal wrote.
Hoovestal in an email wrote that there was not video from the restaurant “proving or corroborating the allegations made by the complainant, and witnesses who were present substantially disputed the events, including whether Mr. Smith was even carrying a firearm.”
Before the attorney general’s office assumed the case, the deputy county attorney filed the affidavit stating a corporal with the Helena Police Department observed Smith in his van outside the restaurant "pull something from his waistband and then place it in the glove box of the van. Rodney Smith’s movements were consistent with drawing a handgun from a holster on the right side of his body,” the affidavit reads.
The affidavit also says Smith exposed a handgun he had on his waist band in a black hostler on his belt and “patted it with his hand and made a statement to (a restaurant employee) to the effect of ‘I’m going to get you.’”
Hoovestal wrote Wednesday that the lack of a video of the incident “calls into play” a segment of state law saying if stronger evidence is available, weaker evidence “should be viewed with distrust.”
Hoovestal also wrote “the complainant at Hokkaido was quite vocal in asserting that there was video of the event, but he could not and did not produce it when asked for it, because it didn’t exist.”
The affidavit does not reference a video. In the back-and-forth between Gallagher and Oestreicher after the Attorney General’s Office requested Gallagher turn over his case files, Gallagher did reference that the file did not have the A/V (audio/visual) evidence because it was stored in an electronic evidence locker for which the server went down. Gallagher said if Oestreicher needed the evidence, he could contact an HPD evidence technician who was listed on a possible witness list. It’s not clear what the evidence was.
Hoovestal also wrote the “complainant further had a dispute with Mrs. Smith arising from a prior transaction between the two which gave him motive to lie about what occurred,” but did not elaborate.
Hoovestal also said it was “disputed” if Smith had a firearm but that if he did, state law “clearly allowed him to ‘communicate to another person the fact that [he had] a weapon,’ and it also allowed him to ‘warn or threaten the use of force, against the aggressor, including drawing or presenting a weapon,’” Hoovestal wrote.
That part of state law governs openly carrying a weapon, while the original charges were related to carrying a concealed weapon and doing so in a prohibited place.
Under the plea agreement, Smith must also pay $75 in fees.
While the Attorney General’s Office told the Montana State News Bureau when it initially reported this story in August it could not comment on a pending case, spokesperson Kyler Nerison told the Montana Television Network then two of the charges against Smith were changed by the state Legislature after the altercation at the restaurant.
In the most recent legislative session, lawmakers passed a bill that dramatically expanded where concealed firearms could be carried.