No. 91-170
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA
Plaintiff and Respondent,
-V-
JIMMY RAY BROMGARD.
Defendant and Appellant
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender, Helena,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, George M.
Schunk, Assistant Attorney General, Helena, Montana
Dennis Paxinos, Yellowstone County Attorney, David
W. Hoefer, Deputy County Attorney, Billings, Montana
Submitted on Briefs: August 26, 1993
Decided: November 2, 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
Jimmy Ray Bromgard (Bromgard) appeals from a judgment of the
Thirteenth Judicial District, Yellowstone County. In November
1987, a jury convicted Bromgard of three counts of sexual
intercourse without consent. Bromgard was sentenced to three
forty-year terms of imprisonment in the Montana State Prison to be
served concurrently and was designated a dangerous offender.
This Court dismissed Bromgard's initial appeal on August 30,
1988 for failure to file an appellant's brief or Anders memorandum.
On March 29, 1991, Bromgard filed a petition for post-conviction
relief. This Court denied relief on six of the seven claims
alleged: we granted relief on Bromgard's claim of ineffective
assistance of counsel by virtue of his counsel's failure to
properly appeal the convictions. The state Appellate Defender was
appointed as counsel by this Court. We granted the Appellate
Defender's motion to file an out-of-time appeal.
The question presented for our review is whether the District
Court erred in denying defendant's motion for a directed verdict of
acquittal at the close of the defendant's case-in-chief. We
affirm.
In the early morning hours of March 20, 1987, an intruder
entered the home of a Billings family through a bathroom window.
In addition to burglarizing the home, the intruder raped an eight-
year-old girl while the rest of the family slept.
The assault took place between the hours of 4:OO and 5:OO a.m.
The intruder awakened the victim, threatened her and gagged her
mouth with clothing, and then committed acts of oral, vaginal and
anal intercourse. He then put a pillow over her head and left.
After the man left, the victim woke her father. Her father
woke the victim's mother so that he could look around the house.
He noticed a bathroom window propped open with a stick and
immediately notified the police. The victim was taken to a
physician who confirmed that she had been vaginally and anally
raped.
The victim had been able to see her assailant quite clearly as
a hallway light had been left on during the night. A police artist
made a composite sketch of the assailant from the description the
victim gave to him. Another officer looked at the sketch and
mentioned that he thought the sketch looked like Bromgard. The
sketch was shown to a neighbor of Bromgard's who also said the man
in the sketch was Bromgard. Police also found a stolen checkbook
belonging to the victim's mother near Bromgard's home.
The Billings police then conducted a lineup of six people,
including Bromgard. The victim identified Bromgard from the lineup
and also identified Bromgard at trial as the man she had picked out
of the lineup.
Bromgard agreed to submit head and pubic hair samples. These
samples were sent to the State Crime Laboratory and were found to
be indistinguishable from certain samples recovered from the
victim's bedding. Bromgard was arrested, charged and tried on
three counts of sexual intercourse without consent. The District
Court denied Bromgard's counsel's motion for a directed verdict of
3
acquittal at the close of Bromgard's case-in-chief. The jury found
Bromgard guilty of all three counts.
Did the District Court err in denying Bromgardgs motion for a
directed verdict of acquittal at the close of the evidence?
Defense counsel moved the court to direct a verdict of
acquittal on the ground that the evidence was conjectural and
insufficient to prove Bromgard's guilt beyond a reasonable doubt.
The motion was denied. The decision to direct a verdict in favor
of a defendant lies within the discretion of the trial court and
will not be disturbed absent an abuse of that discretion. State v.
Haskins (1992), 255 Mont. 202, 210, 841 P.2d 542, 547. A directed
verdict of acquittal is appropriate only when there is no evidence
to support a guilty verdict. Haskins, 841 P.2d at 547.
[Tlhe 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 proved beyond
a reasonable doubt.
State v. White Water (1981), 194 Mont. 85, 87-88, 634 P.2d 636,
638.
Bromgard contends that the evidence offered by the State fell
into three categories, none of which supports the conviction. We
will address each category separately.
a. The hair sample comparison.
The State Crime Lab compared hair samples found in the
victim's bedding with hair samples taken from the victim's head and
with Bromgard's head and pubic hair samples. Forensic scientist
Arnold Melnikoff of the State Crime Lab testified that both head
hair and pubic hair taken from the victim's bedding were
4
microscopically comparable to the samples provided by Bromgard.
Unlike fingerprint comparison, hair comparison does not
produce absolute identification. Melnikoff testified that in his
experience the odds were one in one hundred that two people would
have head hair pubic hair so similar that they could not be
distinguished by microscopic comparison and the odds of both head
and pubic hair from two people being indistinguishable would be
about one in ten thousand.
Other courts have held that hair analysis evidence such as
that provided in this case is insufficient by itself to positively
identify a person. See, e.q., State v. Faircloth (N.C. App. 1990),
394 S.E.2d 198. Bromgard contends that the evidence of hair
comparison by itself is insufficient as a means of identification;
thus, he claims that because other evidence is insufficient, the
hair comparison testimony is relevant but not conclusive. Bromgard
also cites Faircloth for the premise that comparative hair
microscopy serves to exclude persons and is conclusive only to
negative identity. Faircloth, 394 S.E.2d at 202. We need not rule
on whether such evidence is sufficient by itself for identification
purposes as it does not rule out Bromgard as the perpetrator of the
assault in this case.
b. The identification made by the victim.
Bromgard contends that the identification made by the victim
is insufficient for several reasons. First, Bromgard contends that
only the victim saw her assailant and the light was limited because
it came from a 100-watt light in the hallway; therefore, she could
5
not have seen him clearly. Next, Bromgard contends that the lineup
was suggestive and that the victim's identification at the lineup
was less than positive. Finally, he contends that the victim
became less sure as time passed that she had identified the right
person.
We find none of these arguments compelling. The jury is in
the best position to judge the credibility of the victim and her
identification of her assailant. In this case, she saw him clearly
enough to give the police a description from which police were able
to create a composite sketch of her assailant, which led to further
investigation of Bromgard. She identified Bromgard from a live
lineup which did not prejudice Bromgard. Any inconsistencies,
indecision or flaws in the victim's testimony more properly go to
the weight to be given by the jury to the victim's testimony. This
is a matter which is within the province of the jury.
c. Lack of other physical evidence.
Bromgard next contends that there was no physical evidence
other than the hair comparison evidence and a composite sketch to
link him to the offense. Specifically, he claims that the
checkbook belonging to the victim's mother which was found near his
home is not relevant because there was no discernible pattern or
route established by the State between the victim's home and
Bromgard's residence. He further contends that there was no
fingerprint evidence or other forensic evidence from the blood
stains found on the victim's bedding from which to link Bromgard to
the crime.
6
The State has no obligation to provide this sort of physical
proof to prevent a directed verdict of acquittal from being entered
in favor of the defendant. A conviction may be based on
circumstantial evidence alone. State v. Atlas (1986), 224 Mont.
92, 95, 728 P.2d 421, 423. When circumstantial evidence is
susceptible of two interpretations, one supporting guilt and the
other supporting innocence, the trier of fact determines which is
most reasonable. State v. Tome (1987), 228 Mont. 398, 401, 742
P.2d 479, 481.
The State introduced other evidence in addition to the hair
microscopy analysis, the description and identification made by the
victim and the placement of the checkbook in the location of
Bromgard's home. This consisted of further testimony inculpating
Bromgard. Friends testified that on the date of the incident,
Bromgard probably arrived home between 3:OO and 4:OO a.m. from an
evening of drinking and cruising town. The victim's home was
within walking distance of Bromgard's home and the assault took
place shortly before 4:45 a.m. This testimony tends to establish
the opportunity Bromgard had to commit the assault. We conclude
that there was sufficient evidence to submit the question of
Bromgard's guilt to the jury.
We hold the District Court did not err in denying Bromgard's
motion for a directed verdict of acquittal at the close of his
case-in-chief.
AFFIRMED.
7
We Concur:
8