No. 80-334
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
STATE OF MONTANA,
Plaintiff and Respondent,
VS .
JAMES W. BRUBAKER,
Defendant and Appellant.
Appeal from: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone.
Honorable Charles Luedke, Judge presiding.
Counsel of Record:
For Appellant:
John L. Adams, Billings, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Harold F. Hanser, County Attorney, Billings, Montana
Submitted on briefs: February 17, 1981
Decided : MAR 2 8 1981
Filed: @A!? 2 0 1981
Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e O p i n i o n o f
t h e Court.
On November 4 , 1 9 7 7 , d e f e n d a n t was c o n v i c t e d o f t h e
offense of aggravated assault. This Court reversed the
conviction and ordered a new trial. State v. Brubaker
(1979 I Mont . , 602 P.2d 974, 36 S t . R e p . 1915. On
June 4 , 1 9 8 0 , d e f e n d a n t was a g a i n c o n v i c t e d o f t h e o f f e n s e
of aggravated a s s a u l t following a j u r y t r i a l i n t h e District
C o u r t of the Thirteenth Judicial District. D e f e n d a n t now
appeals.
On J a n u a r y 1 2 , 1 9 7 7 , d e f e n d a n t - a p p e l l a n t brought h i s
g i r l f r i e n d and roommate, S h a r o n W a t s o n , a l s o known a s S h a r o n
B r u b a k e r , t o t h e emergency room o f B i g Horn County Memorial
Hospital. Dr. Robert Whiting, the attending physician,
t e s t i f i e d t h a t Watson was c o m a t o s e w i t h a b n o r m a l r e s p i r a t i o n
and other neurological symptoms indicating severe brain
damage. He n o t e d m u l t i p l e b r u i s e s o v e r t h e l e f t s i d e o f h e r
forehead, her eye, her arms and s h o u l d e r s . He e s t i m a t e d
t h a t t h e b r u i s e s were a t l e a s t f o r t y - e i g h t h o u r s o l d .
Watson was transported by ambulance to Billings,
Montana, where s h e was t r e a t e d by Dr. Lashman S o r i y a . Dr.
S o r i y a d i a g n o s e d a head i n j u r y c a u s i n g s e v e r e b r a i n damage.
H e a l s o o b s e r v e d m u l t i p l e b r u i s e s and s t a t e d i n h i s o p i n i o n
t h e y were a p p ro x i m a t e l y f o r t y - e i g h t h o u r s o l d and c o u l d n o t
have been caused by a fall. Dr. S o r i y a performed brain
s u r g e r y on Watson t h e n e x t m o r n i n g t o r e l i e v e i n t r a c r a n i a l
pressure caused by a large blood clot. Based on his
e v a l u a t i o n of t h e symptoms, h i s o p i n i o n was t h a t o n c e t h e
i n j u r y was i n f l i c t e d , Watson would h a v e l o s t c o n s c i o u s n e s s
and c o u l d n o t have p o s s i b l y awakened.
On January 17, 1977, Detective Rickard Ross
interviewed appellant regarding the circumstances under
which Watson was injured. Appellant told Ross that he had
closed the bar where he and Watson lived and worked at
approximately 1: 00 a.m. on Wednesday, January 12, 1977.
Appellant stated that he spent approximately one-half hour
hauling coal from an outbuilding into the bar and that he
then discovered Watson lying unconscious on the floor on
some electrical wires. He stated that he took Watson into
their living quarters where she regained consciousness, took
two aspirins, and drank some 7-Up. Appellant stated that
Watson regained consciousness several times in the next few
hours but that her condition deteriorated in the afternoon
leading him to take her to the hospital that evening. A
tape recording of appellant's statement was played at trial.
Appellant's testimony at trial was essentially consistent
with the taped statement.
The State presented several witnesses at trial who
contradicted appellant's story. Cy Welch and Jim Clifton
testified that appellant had told them that Watson received
her injuries Tuesday morning, rather than Wednesday morning.
Dr. Whiting and Dr. Soriya also contradicted appellant's
story. Both doctors testified that the bruises they
observed on Watson's body on Wednesday evening were at least
forty-eight hours old.
The State also presented testimony from two witnesses
as to a previous assault on Watson by appellant. Kenneth
Perrin and Don Gilreath testified that sometime in late
spring of 1977 they observed appellant strike Watson in the
parking lot of the Prairie Diner east of Custer, Montana.
In both instances, an admonition was given to the jury to
comply w i t h the decision of this Court in S t a t e v. Just
(1979) I Mont . , 602 P.2d 957, 36 S t . R e p . 1649.
A p p e l l a n t r a i s e s two i s s u e s :
1. Whether the D i s t r i c t Court e r r e d in permitting
w i t n e s s e s P e r r i n and G i l r e a t h t o t e s t i f y a s t o a n a l l e g e d
p r i o r a s s a u l t by a p p e l l a n t on t h e v i c t i m a p p r o x i m a t e l y e i g h t
o r n i n e months b e f o r e t h e c r i m e h e r e c h a r g e d ?
2. Whether t h e D i s t r i c t Court e r r e d in failing to
d i s m i s s t h e c h a r g e of a g g r a v a t e d a s s a u l t b e c a u s e t h e r e was
not s u f f i c i e n t evidence t o connect appellant t o the alleged
a s s a u l t on t h e v i c t i m ?
Appellant argues t h a t the testimony on t h e p a r t of
t h e two w i t n e s s e s c a l l e d t o t e s t i f y a s t o a p r i o r a s s a u l t by
t h e a p p e l l a n t on t h e v i c t i m was t o o r e m o t e i n t i m e . He a l s o
argues t h a t the prior a s s a u l t had no r e l a t i o n t o t h e c r i m e
charged here. He further argues t h a t the probative value
was less than the inherent prejudicial nature of the
testimony.
I n t h e p r i o r B r u b a k e r c a s e , we a d d r e s s e d t h e i s s u e s
raised here and held that the testimony of these two
witnesses was properly admissible as evidence of other
crimes. "The e v i d e n c e o f P e r r i n and G i l r e a t h r e l a t e s t o a n
i n c i d e n t where t h e a s s a u l t by B r u b a k e r r e s u l t e d i n a s e v e r e
i n j u r y t o S h a r o n and i t was a n a t t a c k w i t h i n t h e k i n d t h a t
m u s t h a v e o c c u r r e d t o h e r on J a n u a r y 1 0 o r 11, 1977. . ."
S t a t e v . B r u b a k e r , 602 P.2d a t 981.
"We r e c o g n i z e t h a t t h e a d m i s s i o n o f s u c h
e v i d e n c e is a n e x c e p t i o n t o t h e g e n e r a l r u l e
and a c c o r d i n g l y w e a r e o b l i g a t e d t o l o o k
very carefully a t the r e l a t i v e probative
v a l u e of s u c h e v i d e n c e , i f a n y , and weigh i t
against the prejudice inherent i n t h i s type
of e v i d e n c e i n t h e l i g h t of t h e a c t u a l need
t o i n t r o d u c e s u c h e v i d e n c e by t h e s t a t e . "
S t a t e v. F r a t e s ( 1 9 7 2 ) , 160 Mont. 431, 503
P.2d 47, 50.
The admission of "other crimes" evidence is
determi n e d under a f o u r - p a r t test: (1) w h e t h e r t h e a c t s a r e
sufficiently similar; ( 2 ) whether t h e a c t s a r e t o o remote i n
time; ( 3 ) whether t h e evidence is o f f e r e d for one of the
purposes permitted by Rule 404(b), Mont.R.Evid. ; and (4)
whether t h e p r o b a t i v e v a l u e of t h e evidence outweighs its
inherently prejudicial nature. S t a t e v. J u s t (1979),
Mont . , 602 P.2d 957, 36 S t . R e p . 1649.
The f i r s t element of the t e s t was satisfied. The
a c t s were s i m i l a r i n n a t u r e . Second, t h e o t h e r a c t occurred
a p p r o x i m a t e l y e i g h t months p r i o r t o t h e c r i m e c h a r g e d h e r e .
T h i s is n o t t o o r e m o t e i n t i m e . S t a t e v. J e n s e n ( 1 9 6 9 ) , 153
Mont. 233, 455 P.2d 631. (Allowing evidence of previous
c r i m e s f i f t e e n months b e f o r e o t h e r c r i m e c h a r g e d . ) Third,
Rule 404 ( b ) , Mont . R . E v i d . , states: ". . . [other crimes
evidence] may be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident."
(Emphasis s u p p l i e d . )
The evidence was offered to show a course of
assaultive conduct by the appellant and to negate any
suggestion that the victim had suffered her injuries by
accident. I n S t a t e v. H e i n e ( 1 9 7 6 ) , 1 6 9 Mont. 2 5 , 544 P.2d
1 2 1 2 , w e h e l d t h a t e v i d e n c e o f a p r i o r a s s a u l t on t h e same
victim was admissible for precisely the same purpose as
presented i n t h i s case.
Finally, the evidence was highly probative and
necessary t o the S t a t e ' s case. The e v i d e n c e i n t h i s c a s e
was entirely circumstantial. The S t a t e proved -- r p u s
co
d e l e c t i and o p p o r t u n i t y , but the evidence of other crimes
added substantially to the State's case by showing that
a p p e l l a n t had on a p r i o r o c c a s i o n i n f l i c t e d s e r i o u s i n j u r i e s
on t h e same v i c t i m and i n t h e same m a n n e r , t h u s n e g a t i n g t h e
i n £ e r e n c e t h a t t h e i n j u r i e s were s u s t a i n e d by a c c i d e n t .
Next, appellant contends the evidence was
i n s u f f i c i e n t t o support t h e j u r y ' s v e r d i c t of g u i l t y .
Reviewing the entire record this Court finds
s u f f i c i e n t evidence t o support t h e v e r d i c t . Dr. W h i t i n g and
Dr. Soriya clearly established that the injuries to the
v i c t i m w e r e i n f l i c t e d some f o r t y - e i g h t hours prior t o the
time a p p e l l a n t brought the victim to the emergency room.
Appellant t e s t i f i e d t h a t he found t h e v i c t i m injured some
e i g h t e e n h o u r s b e f o r e he s o u g h t t r e a t m e n t o f h e r injuries.
Dr. S o r i y a ' s t e s t i m o n y showed t h a t the i n j u r i e s could not
have been sustained in a f a l l or in several f a l l s . His
testimony further directly contradicted appellant's
t e s t i m o n y t h a t t h e v i c t i m had r e g a i n e d c o n s c i o u s n e s s s e v e r a l
times.
A p p e l l a n t had the opportunity t o commit t h e crime.
T h e r e i s no e v i d e n c e t h a t anyone o t h e r t h a n a p p e l l a n t was
w i t h t h e v i c t i m when t h e i n j u r i e s o c c u r r e d . Appellant never
reported an assault on the victim. Appellant's own
s t a t e m e n t provided evidence of motive. H i s s t a t e m e n t shows
t h e e x i s t e n c e of prior d o m e s t i c d i s c o r d which r e s u l t e d in
physical confrontation between him and the victim.
A p p e l l a n t a d m i t t e d s t r i k i n g t h e v i c t i m on a n o t h e r o c c a s i o n
during an argument over her prior husband. When the
testimony of Perrin and Gilreath is added, the evidence
against appellant is sufficient as a case built on
circumstantial evidence to exclude any hypothesis consistent
with appellant's innocence. See State v. Fitzpatrick
(1973), 163 Mont. 220, 516 P.2d 605.
The fact that appellant never reported the incident
to the police and waited some forty-eight hours before
seeking medical attention for life-threatening injuries is
certainly not consistent with innocent conduct. Further,
appellant's explanation of his failure to report the alleged
assault to the sheriff--that he assumed the doctors would
automatically do so--is belied by the fact that appellant
never told Dr. Soriya that an assault had occurred.
When the evidence is reviewed in a light most
favorable to the State, State v. Pascgo (1977), 173 Mont.
121, 566 P.2d 802, we find that the verdict clearly is
supported by substantial evidence. While the evidence is
circumstantial in part, it indicates injuries inflicted by
the appellant in a domestic quarrel and not some type of
accidental injury.
Affirmed.
We concur: