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. Justice John Conway Harrison delivered the Opinion of 

the Court. 

On November 4, 1977, defendant was convicted of the 

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 St.Rep. 1915. On 

June 4, 1980, defendant was again convicted of the offense 

of aggravated assault following a jury trial in the District 

Court of the Thirteenth Judicial District. Defendant now 

appeals. 

On January 12, 1977, defendant-appellant brought his 

girlfriend and roommate, Sharon Watson, also known as Sharon 

Brubaker, to the emergency room of Big Horn County Memorial 

Hospital. Dr. Robert Whiting, the attending physician, 

testified that Watson was comatose with abnormal respiration 

and other neurological symptoms indicating severe brain 

damage. He noted multiple bruises over the left side of her 

forehead, her eye, her arms and shoulders. He estimated 

that the bruises were at least forty-eight hours old. 

Watson was transported by ambulance to Billings, 

Montana, where she was treated by Dr. Lashman Soriya. Dr. 

Soriya diagnosed a head injury causing severe brain damage. 

He also observed multiple bruises and stated in his opinion 

they were approximately forty-eight hours old and could not 

have been caused by a fall. Dr. Soriya performed brain 

surgery on Watson the next morning to relieve intracranial 

pressure caused by a large blood clot. Based on his 

evaluation of the symptoms, his opinion was that once the 

injury was inflicted, Watson would have lost consciousness 

and could not have possibly 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 with the decision of this Court in State v. Just 

(1979) I Mont . , 602 P.2d 957, 36 St.Rep. 1649. 

Appellant raises two issues: 

1. Whether the District Court erred in permitting 

witnesses Perrin and Gilreath to testify as to an alleged 

prior assault by appellant on the victim approximately eight 

or nine months before the crime here charged? 

2. Whether the District Court erred in failing to 

dismiss the charge of aggravated assault because there was 

not sufficient evidence to connect appellant to the alleged 

assault on the victim? 

Appellant argues that the testimony on the part of 

the two witnesses called to testify as to a prior assault by 

the appellant on the victim was too remote in time. He also 

argues that the prior assault had no relation to the crime 

charged here. He further argues that the probative value 

was less than the inherent prejudicial nature of the 

testimony. 

In the prior Brubaker case, we addressed the issues 

raised here and held that the testimony of these two 

witnesses was properly admissible as evidence of other 

crimes. "The evidence of Perrin and Gilreath relates to an 

incident where the assault by Brubaker resulted in a severe 

injury to Sharon and it was an attack within the kind that 

must have occurred to her on January 10 or 11, 1977. . ." 

State v. Brubaker, 602 P.2d at 981. 

"We recognize that the admission of such 

evidence is an exception to the general rule 

and accordingly we are obligated to look 

very carefully at the relative probative 

value of such evidence, if any, and weigh it 

against the prejudice inherent in this type 

of evidence in the light of the actual need 

to introduce such evidence by the state." 
State v. Frates (1972), 160 Mont. 431, 503 

P.2d 47, 50. 

The admission of "other crimes" evidence is 

determined under a four-part test: (1) whether the acts are 

sufficiently similar; (2) whether the acts are too remote in 

time; (3) whether the evidence is offered for one of the 

purposes permitted by Rule 404(b), Mont.R.Evid. ; and (4) 

whether the probative value of the evidence outweighs its 

inherently prejudicial nature. State v. Just (1979), 

Mont . , 602 P.2d 957, 36 St.Rep. 1649. 

The first element of the test was satisfied. The 

acts were similar in nature. Second, the other act occurred 

approximately eight months prior to the crime charged here. 

This is not too remote in time. State v. Jensen (1969), 153 

Mont. 233, 455 P.2d 631. (Allowing evidence of previous 

crimes fifteen months before other crime charged.) Third, 

Rule 404 (b) , Mont .R.Evid., 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 supplied.) 

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. In State v. Heine (1976), 169 Mont. 25, 544 P.2d 

1212, we held that evidence of a prior assault on the same 

victim was admissible for precisely the same purpose as 

presented in this case. 

Finally, the evidence was highly probative and 

necessary to the State's case. The evidence in this case 

was entirely circumstantial. The State proved -- corpus 
delecti and opportunity, but the evidence of other crimes 

added substantially to the State's case by showing that 

appellant had on a prior occasion inflicted serious injuries 

on the same victim and in the same manner, thus negating the 

in£ erence that the injuries were sustained by accident. 

Next, appellant contends the evidence was 

insufficient to support the jury's verdict of guilty. 

Reviewing the entire record this Court finds 

sufficient evidence to support the verdict. Dr. Whiting and 

Dr. Soriya clearly established that the injuries to the 

victim were inflicted some forty-eight hours prior to the 

time appellant brought the victim to the emergency room. 

Appellant testified that he found the victim injured some 

eighteen hours before he sought treatment of her injuries. 

Dr. Soriya's testimony showed that the injuries could not 

have been sustained in a fall or in several falls. His 

testimony further directly contradicted appellant's 

testimony that the victim had regained consciousness several 

times. 

Appellant had the opportunity to commit the crime. 

There is no evidence that anyone other than appellant was 

with the victim when the injuries occurred. Appellant never 

reported an assault on the victim. Appellant's own 

statement provided evidence of motive. His statement shows 

the existence of prior domestic discord which resulted in 

physical confrontation between him and the victim. 

Appellant admitted striking the victim on another occasion 

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: