I N THE SUPREME COURT O THE STATE O MONTANA
F F
STATE O MONTANA,
F
p l a i n t i f f and Respondent,
-VS-
D U L S LEE LAVERDURE,
O GA
Defendant and A p p e l l a n t .
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0 N
APPEAL F O :
R M D i s t r i c t Court of t h e Fourth J u d i c i a l
I n and f o r t h e County o f M i s s o u l a ,
~ist3ict.~
The Honorable Douglas H a r k i n , Judge p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Douglas C . Anderson, M i s s o u l a , Montana
For Respondent :
Won. Marc R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , Montana
P a u l D . J o h n s o n , A s s t . A t t y . G e n e r a l , Helena
R o b e r t Deschamps, 111, County A t t o r n e y , iss sou la,
Montana
S u b m i t t e d on B r i e f s : Dec. 7 , 1989
Decided: J a n u a r y 1 9 , 1990
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
Defendant, Douglas Laverdure, was charged in the ~istrict
Court for the Fourth Judicial ~istrict,Missoula County, with the
felonies of aggravated burglary and criminal mischief, and
misdemeanor assault. At the close of the State's case, the defense
moved for directed verdict, alleging that the State had not
presented sufficient evidence to sustain a verdict. The motion was
denied, the jury returned a verdict of guilty on all three counts,
and defendant was convicted. He appeals. We affirm.
Defendant presents the following two issues on appeal:
1. Did the District Court err in denying the defendant's
motion for directed verdict?
2. Did the prosecutor's remarks during closing arguments
deprive defendant of a fair trial?
Substantial evidence in the record shows: The victim, Betty
Bullchild, and her two children lived in a trailer court near
Frenchtown, Montana. Living in the same trailer court were
defendant, who lived with Lori Wessel, and defendant's sister,
Debbie Laverdure. At around 3:19 a.m. on October 4, 1988,
Bullchild called the Missoula County sheriff's Department to report
that someone had thrown a rock through her trailer window. A
friend of hers, Mervin Pine was with her when the rock came through
the window, and when the Deputy Sheriff came to investigate. The
Deputy testified that both Pine and Bullchild were drinking but
appeared sober. He testified Bullchild suspected defendant was the
person that threw the rock through the window so the Deputy went
to his trailer to investigate. He testified that the lights were
all out at the defendant's trailer and that there was no one
outside. He further testified that this ill-fated relationship
between defendant, his sister, girlfriend and Bullchild had been
going on for some time and he had personally dealt with the same
group of people before on other vandalism calls.
About an hour later, the Deputy received a second phone call,
this time to report that Bullchild had been assaulted and had been
taken to her sister's house. The Deputy testified that Bullchild
was llpossiblyin shock1'when he talked to her and had blood all
over her face and hands. Bullchild testified that defendant,
Wessel and Debbie Laverdure had broken windows in her trailer and
then forced their way into the house and beat her. She testified
that defendant found her in her bedroom, yelled to the others "Here
she isv',and then beat her up. During the assault, Bullchild's two
children were beneath the covers on the bed.
After investigating the trailer, the Deputy testified that he
found blood on the floor in the kitchen and down the hallway and
that all the windows in Bullchild's trailer had been broken out.
The windows of Bullchild's car were also broken out.
Defendant personally testified but gave a completely different
version of the facts. When the Deputy went to defendant's home
after the second call, defendant and Wessel came to the door. The
Deputy testified that defendant reported to him that somebody had
broken out one of his windows. Defendant's testimony painted
Bullchild and Pine as the aggressors, and he denied beating up
Bullchild. The Deputy testified that defendant told him that an
Indian, (Mewin Pine) had thrown a rock at him, missed and broke
the window. The Deputy arrested defendant, Debbie Laverdure and
Wessel. Separate charges were filed and separate trials were held.
At the close of the State's case against defendant, the defense
moved for directed verdict, alleging that the State had not
presented sufficient evidence to sustain a verdict based on the
inconsistencies in the various versions of the incident as told by
Bullchild. The motion was denied. Defendant was convicted and
this appeal follows.
Did the District Court err in denying the defendant's motion
for directed verdict?
Defendant contends there was not sufficient evidence to
support his conviction, and that the denial of his motion for
directed verdict was an abuse of discretion. He maintains that
the State's case was based solely on the testimony of Bullchild
and that her story varied from the time of the initial
investigation through the trial.
The State urges that a district court may only grant a motion
for directed verdict when:
there is no evidence upon which the jury could base a
verdict; that is, the 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 proven beyond a
reasonable doubt.
State v. White Water (Mont. 1981), 634 P.2d 636, 38 St.Rep. 1664.
The State further maintains that it is "within the province of the
trier of fact to determine" which evidence shall prevail when it
is conflicting, and that the jury is the exclusive judge of a
witness' credibility. We agree.
When reviewing the denial of a motion for directed verdict,
only substantial evidence in the record supporting the jury's
finding is required. Lane v. Dunkle (Mont. 1988), 753 P.2d 321,
45 St.Rep. 686. The standard of review on issues of substantial
evidence is that the conviction cannot be overturned if evidence,
when viewed in a light most favorable to the prosecution, would
allow a rational trier of fact to find essential elements of the
crime beyond a reasonable doubt. State v. Buckingham (Mont. 1989),
P. 2d , 46 St.Rep. 2102. The weight of evidence and
credibility of witnesses is exclusively within the province of the
jury. State v. Urness (Mont. 1989), 778 P.2d 419, 46 St.Rep. 1510.
The jury heard the evidence and testimony of the witnesses and
found defendant was guilty of the charges against him. Bullchild
never changed her testimony as to who assaulted her. Even with the
inconsistencies in her testimony, the jury found defendant to be
guilty of the charges against him beyond a reasonable doubt. We
hold the District Court did not err in denying the defendant's
motion for directed verdict.
I1
Did the prosecutor's remarks during closing arguments deprive
defendant of a fair trial?
Defendant contends that the prosecution made several improper
comments during closing argument indicating that defendant was
lying. Defendant concedes that no objection was made at trial to
these comments but contends that failure to object should not
necessarily bar review by this Court, citing case law from other
jurisdictions.
The State maintains that the statements made were not improper
and that failure to object at trial does bar review. The State
further urges that even if the issue is reviewable, there was no
error in the statements made. We agree.
Objections to closing arguments made for the first time on
appeal are too late. State v. Pease (1986), 222 Mont. 455, 472,
724 P.2d 153, 163. Furthermore, the State's comments were nothing
more than an opinion and "an opinion based on the State's analysis
of evidence1' does not constitute an expression of the State's
personal opinion of guilt and is not prejudicial. State v. Clawson
(Mont. 1989), 781 P.2d 267, 46 St.Rep. 1792. We hold the
prosecutor's remarks during closing arguments did not deprive
defendant of a fair trial.
Affirmed.
We Concur: