No. 91-611
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
5 *,
STATE OF MONTANA, ?
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Plaintiff and Respondent,
-vs- J U L 2 1992
DAVID FOREST BOWER,
CLERKOF S::::,RS:,!;: C:ltJtii
STATE GF MONTANA
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John E. Smith and Marcia M. Jacobson, Public
Defender's Office, Missoula, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Cregg W.
Coughlin, Assistant Attorney General, Helena,
Montana
Robert L. Deschamps, 111, County Attorney, Robert
Zimmerman, Deputy County Attorney, Missoula, Montana
Submitted on Briefs: May 7, 1992
Decided: July 2, 1992
Filed:
Clerk
Justice Karla M. Gray delivered the Opinion of the Court.
The defendant, avid Forest Bower, appeals his conviction of
aggravated assault following a nonjury trial in the District Court
of the Fourth Judicial District, Missoula County. We affirm.
The issues on appeal are:
1. Did the District Court commit reversible error when it
admitted evidence concerning the defendant's character during the
State's case-in-chief?
2. Is there sufficient evidence in the record to support the
defendant's conviction of aggravated assault?
On the evening of July 20, 1990, the defendant went to
Connie's Lounge in Missoula, Montana where he encountered his ex-
girlfriend, Holly Torgerson, and her boyfriend, Mark Moore.
Torgerson is the mother of the defendant's son. Moore testified
that on three occasions the defendant approached him and Torgerson
and loudly made remarks maligning Torgerson's reputation. After
the third occasion he approached the defendant to ask him to stop
the verbal harassment. Moore testified that, before he could say
anything to the defendant, the defendant struck him in the head
with a bar glass. The blow and resulting struggle left several
lacerations on Moore's forehead and right cheek.
Bar employees separated the defendant and Moore and moved them
outside the bar. Missoula police officers arrived and transported
Moore to the hospital. Moore testified that he was at the hospital
for three or four hours during which time he received 57 sutures to
close his facial lacerations.
2
Tracy Reinke was in Connie's Lounge during the time of the
altercation between the defendant and Moore. She testified that
she heard an argument start as the defendant walked up to Moore.
She stated that later in the evening she was standing next to and
talking with the defendant when he threw a punch at Moore "[alnd
the next thing I knew he [Moore] got sliced."
The defendant testified that Moore and Torgerson were
attempting to fight with him because of a continuing custody battle
over his son and a pending assault charge which he made against
Torgerson. He claimed that while he was in the bar he tried to
avoid Moore and Torgerson as much as possible and that he was
concerned for his safety. He testified that when Moore approached,
he thought it was to fight so he "reached out and stopped him1#and
told him to stay away. Moore then hit him in the lip and head. He
then defended himself, striking Moore. The defendant claimed that
he was unaware that he had a bar glass in his hand when he struck
Moore because he was concentrating on defending himself.
Reinke testified in rebuttal to the defendant's testimony that
approximately one month after the incident at Connie's Lounge, the
defendant approached her on the street and inquired if she was
going to testify at trial. She claimed that when she told him that
she was going to testify, he advised her not to say anything. She
testified that the defendant threatened her by stating, "1 know
where your kids go to school and where you live."
Moore testified that in August or September 1990 he was
driving down a Missoula street when he saw the defendant standing
at the street corner. He claimed that the defendant threatened to
hit him again with a glass.
Darla Veltkamp, who was also present at Connie's Lounge on the
night of the altercation, told the investigating police officer
that Moore threw the first punch. She testified at trial, however,
that she did not see the altercation at all and had lied to the
officer because she was intimidated by the defendant, who was
standing nearby when she gave her original statement. She
testified that, before the altercation, the defendant had offered
to give her ten dollars and buy her a drink if she would "punch
out" Torgerson. Veltkamp further testified that the defendant
approached her at a later time and told her to tell authorities
that he did not throw the first punch so he could "get off the
charges.I'
The defendant denied that he threatened Moore in August or
September 1990. He testified that Moore drove up to him on the
street and said, "You ain't going to get away with threatening me
any more." He claimed that he did not know what Moore's statement
meant because he had not said a word to the defendant since their
altercation. The defendant also claimed that it was Veltkamp who
offered to "punch out" Torgerson for ten dollars and a drink and
that he rejected her offer.
The defendant was charged by an amended information with
aggravated assault in violation of 45-5-202, MCA. A nonjury
trial was held on April 1, 1991. At the conclusion of the State's
case-in-chief, the District Court denied the defendant's motion for
a directed verdict of acquittal. The court took the matter under
advisement at the conclusion of the trial and thereafter, on April
5, 1991, found the defendant guilty of aggravated assault. The
defendant was sentenced to fifteen years in prison and designated
a dangerous offender for purposes of parole. This appeal followed.
I.
Did the District Court commit reversible error when it
admitted evidence concerning the defendant's character during the
State's case-in-chief?
During the direct examination of Joe Marshall, who was
bartending at Connie's Lounge on the night of the altercation, the
prosecutor inquired of the victim Moore's reputation in the
community for violence or nonviolence. He then asked the same
question about the defendant's reputation. Over objection,
Marshall was permitted to answer, "I've known him [the defendant]
to be in one or two scuffles before."
The defendant asserts that the District Court's admission of
evidence concerning his reputation or character during the State's
case-in-chief was reversible error. He argues that under Rule
404(a)(l), M.R.Evid., the prosection can offer character evidence
only in rebuttal to an accused's offer of character evidence,
citing State v. Gommenginger (1990), 242 Mont. 265, 790 P.2d 455.
He claims that he did not present such character evidence.
The State concedes that the District Court's admission of the
evidence was error. It argues, however, that the response elicited
from Marshall was not prejudicial to the defendant and, thus, the
court's error was harmless.
An error by the trial court will be deemed harmless llunless
the record shows that the error was prejudicial." Section 46-20-
701 (1), MCA. "The test of prejudicial error requiring reversal is
whether there is a reasonable possibility the inadmissible evidence
might have contributed to the verdict." Brodniak v. State (1989),
239 Mont. 110, 114, 779 P.2d 71, 73 (citations omitted). When
assessing the prejudicial effect of an error, we examine the
totality of the circumstances in which the error occurred.
Brodniak, 239 Mont. at 115, 779 P.2d at 74. In addition, when the
error involves inadmissible evidence, we will not evaluate the
evidence in isolation; to do so would risk magnifying the
prejudicial effect of the error beyond its actual impact on the
verdict. Brodniak, 239 Mont. at 115, 779 P.2d at 74.
After a careful review of the record, we are not convinced
that Marshall's testimony was prejudicial to the defendant. The
limited reference to one or two prior scuffles did not indicate
that the defendant had a propensity or reputation for violence.
Marshall did not state whether the prior scuffles were in or out of
the barroom setting. Nor did he indicate whether the defendant
instigated those scuffles. Given the substantial, if not
overwhelming, evidence in the record supporting the defendant's
conviction, we conclude that there is no reasonable possibility
that Marshall's testimony contributed to the defendant's
conviction. Accordingly, we hold that the error on the part of the
District Court in admitting the testimony was harmless.
11.
Is there sufficient evidence in the record to support the
defendant's conviction of aggravated assault?
The defendant contends that the District Court erred when it
denied his motion for a directed verdict of acquittal at the
conclusion of the State's case-in-chief and when it found him
guilty at the conclusion of trial. He argues that the evidence
presented was not sufficient to establish that he committed the
offense of aggravated assault.
The standard of review of the sufficiency of the evidence is
whether, after reviewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. State
v. Riley (Mont. 1992), - P.2d , 49 St.Rep. 408. This standard
of review is the same whether reviewing the trial court's refusal
to grant the defendant's motion for a directed verdict of acquittal
or the verdict of guilty. See State v. Downing (1989), 240 Mont.
215, 783 P.2d 412: State v. Miller (1988), 231Mont. 497, 757 P.2d
1275.
We note that in State v . Cope (1991), 250 Mont. 387, 819 P.2d
1280, we adopted a "clearly erroneous" standard of review for
judge-made findings of fact in criminal cases. cpDe involved our
review of a district court's findings of fact relating to evidence
presented at a suppression hearing as well as evidence presented at
a bench trial with respect to the substantive elements of the
criminal offense. We applied the "clearly erroneous" standard to
the court's findings in both situations, stating that "[wle see no
reason to maintain a different standard of review in criminal cases
than we apply in civil cases, as long as we continue to require the
State to prove the substantive elements of the criminal offense
beyond a reasonable doubt at trial on the merits." Cope, 250 Mont.
Subsequent to D,we further developed the clearly erroneous
standard of review by adopting a three-part test to be applied in
reviewing judge-made findings of fact:
First, the Court will review the record to see if the
findings are supported by substantial evidence. Second,
if the findings are supported by substantial evidence we
will determine if the trial court has misapprehended the
effect of evidence. [Citations omitted.] Third, if
substantial evidence exists and the effect of the
evidence has not been misapprehended the Court may still
find that lTIA] finding is 'clearly erroneous1 when,
although there is evidence to support it, a review of the
record leaves the court with the definite and firm
conviction that a mistake has been committed." [Citation
omitted. ]
Interstate Prod. credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323,
820 P.2d 1285, 1287. In light of the impropriety of applying the
second and third prongs of the DeSaye test to findings of fact
regarding a defendant's guilt in a criminal case, we conclude that
it is necessary to overrule that portion of which holds that
the "clearly erroneous" standard is to be applied to judge-made
findings of fact on the substantive elements of the criminal
offense. Where sufficiency of the evidence or elements of the
offense issues are presented on appeal, our standard of review, as
stated above, will be whether, after reviewing the evidence in a
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. We will continue to use the "clearly erroneous"
standard of review for judge-made findings of fact on other issues
in criminal proceedings pursuant to m.
The defendant first argues that because no testifying witness
actually saw who threw the first punch, "it was impossible for the
State to prove assault beyond a reasonable doubt in the face of
Defendant's claim of self defense." We disagree.
Moore testified that when he approached the defendant to ask
him to stop the verbal harassment, the defendant struck him in the
head with the bar glass. He denied that he threw the first punch
and alleged that the defendant had instigated the physical
altercation. Although it is unclear from the record whether Reinke
witnessed the altercation from its beginning, she did testify that
she was standing next to and talking with the defendant when "the
next thing [she] knew [Moore] got sliced." The fact that the
defendant's testimony conflicted with that of the State's witnesses
does not, by itself, render the evidence insufficient to support
his conviction. The weight of the evidence and the credibility of
the witnesses are exclusively within the province of the trier of
fact; when the evidence conflicts, the trier of fact determines
which shall prevail. State v. Whitcher (1991), 248 Mont. 183, 188,
810 P.2d 751, 754.
In State v. Lozeau (1982), 200 Mont. 261, 650 P.2d 789, this
Court rejected a similar argument that the evidence was
insufficient because there were no eyewitnesses who saw the
defendant stab the victim. We concluded that the defendant's
argument that his conviction was based on speculation, conjecture
or probability was without merit, stating:
Section 26-1-501, MCA, permits the [trier of fact] to
make such inferences based on the facts proved. "The
[trier of fact] is not bound to blindly accept
defendant's version of the facts. It is free to pick and
choose the evidence it wishes to believe." State v.
Sorenson (1980), Mont., 619 P.2d 1185, 1194, 37 St.Rep.
1834, 1845.
Lozeau, 200 Mont. at 265, 650 P.2d at 791
Similarly, in State v. Reiner (1978), 179 Mont. 239, 254, 587
P.2d 950, 959, we held that "[tlhe mere fact that defendant
testified to a self-defense claim does not entitle him to an
acquittal." We stated that where the evidence on a self-defense
claim is conflicting, it is the function of the trier of fact to
weigh the testimony and decide whether the defendant acted with the
belief that the use of force was necessary and, if so, whether such
belief was reasonable. Reiner, 179 Mont. at 254, 587 P.2d at 958-
59.
Here, the District Court, as the trier of fact, weighed the
evidence, assessed the credibility of the witnesses and found that
the State's version of the incident was more credible than the
defendant's. Such a finding is supported by the evidence. Given
the testimony of the State's witnesses regarding the incident and
the defendant's subsequent threats related to the incident, the
District Court reasonably could infer that the defendant instigated
the physical altercation and was not acting in self-defense.
The defendant next argues that the evidence was not sufficient
to establish aggravated assault because the State did not prove
beyond a reasonable doubt that he possessed the necessary mental
state for the offense. A person commits the offense of aggravated
assault if that person purposely or knowingly causes serious bodily
injury to another person. Section 45-5-202 (I), MCA. The defendant
maintains that in order for the District Court to find that he
possessed the necessary mental state for aggravated assault, the
State had to prove that he intended to cause cuts to Moore's face
with the bar glass. The defendant's argument is misplaced.
In order to possess the necessary mental state for aggravated
assault, the defendant must have acted purposely or knowingly.
"Purposely" is defined in 5 45-2-101(58), MCA, which provides in
part:
[A] person acts purposely with respect to a result or to
conduct described by a statute defining an offense if it
is his conscious obiect to enqaqe in that conduct or to
cause that result. [Emphasis added.]
"Knowingly" is defined in 9 45-2-101(33), MCA, which provides in
part:
[A] person acts knowingly with respect to conduct or to
a circumstance described by a statute defining an offense
when he is aware of his conduct or that the circumstance
exists. A person acts knowingly with respect to the
result of conduct described by a statute defining an
offense when he is aware that it is hiahlv orobable that
such result will be caused bv his conduct. [Emphasis
added. ]
The record contains substantial evidence from which the
District Court could infer that the defendant acted both purposely
and knowingly. In addition to the testimony of the State's
witnesses, the defendant admitted that he voluntarily and
intentionally struck Moore. The court, as the trier of fact, chose
not to believe the defendant's testimony that he struck Moore in
self-defense. Even if the defendant did not intend to cut Moore,
it cannot reasonably be argued that he was not aware of the high
probability that striking Moore in the face with the bar glass
would cause facial lacerations.
Finally, the defendant argues that the evidence was not
sufficient to establish that Moore suffered serious bodily injury.
"Serious bodily injury" is defined as "bodily injury which creates
a substantial risk of death or which causes serious permanent
disfigurement or protracted loss or impairment of the function or
process of any bodily member or organ." Section 45-2-101(59), MCA.
Whether Moore's injury created a substantial risk of death is not
at issue in this case. The defendant argues that, because the
State did not present expert medical testimony, it was impossible
for the District Court to find beyond a reasonable doubt that
Moore ' s injury was a serious permanent disfigurement. We disagree.
We previously have stated that a nonexpert witness is
competent to testify as to his or her past or present condition.
Cain v. Stevenson (1985), 218 Mont. 101, 105, 706 P.2d 128, 131.
Further, expert medical testimony is not necessary to prove the
permanency of an injury where the permanency is undisputed and
apparent from the nature of the injury itself. u,218 Mont. at
105, 706 P.2d at 131.
In our view, it is clear that Moore suffered serious permanent
disfigurement. "The term 'disfigurement' connotes, among other
things, deformity, defacement, marring and/or damage to one's
attractiveness." State v. ~oodwin( 1 9 8 4 ) , 208 Mont. 522, 529, 679
P.2d 2 3 1 , 235. Moore testified to the extensive scarring on his
face and that his scars were permanent. He also testified that at
the time of trial, over eight months after the altercation, he was
still experiencing numbness in his right cheek where one of the
lacerations occurred. Moore's testimony was uncontroverted at
trial.
The State's failure to present expert medical testimony was
not fatal to establishing serious bodily injury under the
circumstances of this case. The District Court, based upon the
nature of Moore's injury and his uncontroverted testimony, could
find without the aid of expert medical testimony that Moore
suffered serious bodily injury. We hold that, based on the
evidence presented at trial, any rational trier of fact could have
found the defendant guilty of the offense of aggravated assault
beyond a reasonable doubt.
Affirmed.
We concur:
July 2, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
John E. Smith
Public Defender's Office
317 Woody St.
Missoula, MT 59802
Hon. Marc Racicot, Attorney General
Cregg W. Coughlin, Assistant
Justice Bldg.
Helena, MT 59620
Robert L. Deschamps, 1 1 County Attorney
1,
Robert Zimmerman, Deputy
Missoula County Courthouse
Missoula. MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
BY: