INTHE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, plaintiff and Respondent,-VSDOUGLAS LEE LAVERDURE, Defendant and Appellant.

,. - .,ii -r c:,

### 2. 0 N APPEAL FROM: District Court of the Fourth Judicial

# ~ist3ict.~ In and for the County of Missoula, The Honorable Douglas Harkin, Judge presiding. COUNSEL OF RECORD: For Appellant: Douglas C. Anderson, Missoula, Montana For Respondent: Won. Marc Racicot, Attorney General, Helena, Montana Paul D. Johnson, Asst. Atty. General, Helena Robert Deschamps, 111, County Attorney, iss sou la, Montana

Filed: Submitted on Briefs: Dec. 7, 1989 Decided: January 19, 1990Justice 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 closeof theState's case,thedefense moved for directed verdict, alleging that the State had not presented sufficientevidence to sustainaverdict. Themotion was denied, the jury returned averdict of guilty on all three counts, and defendant was convicted. He appeals. We affirm. Defendantpresents 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 calledtheMissoula County sheriff'sDepartmenttoreport that someone had thrown a rock through her trailer window. A friendofhers,Mervin Pine waswithher when therock 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. Hetestified Bullchild suspecteddefendant was theperson 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 anhour later, the Deputy received a secondphone call, this time to report that Bullchild had been assaulted and had been taken to her sister'shouse. The Deputy testified that Bullchild

was llpossibly in 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 thatdefendant foundher inher bedroom,yelled to theothers "Here she isv',and thenbeat herup. During theassault,Bullchild's two children were beneath the covers on the bed. After investigating the trailer,theDeputy testified thathe 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 carwere also broken out. Defendantpersonally testified butgavea completelydifferent version of the facts. When the Deputy went to defendant's home after the second call,defendant and Wessel came to thedoor. The Deputy testified that defendant reported to him that somebody had broken out one of his windows. Defendant's testimony paintedBullchild and Pine as the aggressors, and he denied beating up Bullchild. The Deputy testified that defendant told him that an Indian, (MewinPine) 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 trialswereheld. 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 inconsistenciesin thevarious versions of the incidentas told by Bullchild. The motion was denied. Defendant was convicted and this appeal follows.

Did the District Court err in denying the defendant'smotion 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 investigationthrough the trial. The Stateurges that a district courtmay only grant amotion 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 reasonablemen could not conclude from the evidence taken in a light most favorable to the prosecution that guilt has been proven beyond a reasonable doubt. Statev. White Water (Mont. 1981), 634 P.2d 636, 38 St.Rep. 1664.The State further maintains that it is "within theprovince 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 crimebeyond a reasonabledoubt. Statev. Buckingham (Mont. 1989), P.2d 

### , 46 St.Rep. 2102. The weight of evidence and credibilityofwitnesses is exclusivelywithin the province of the jury. Statev. Urness (Mont. 1989), 778P.2d 419, 46 St.Rep. 1510. The jury heard the evidence and testimony of the witnesses and found defendantwas guilty of the charges against him. Bullchild never changed her testimony as to who assaultedher. 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 theprosecutor's remarks during closing arguments deprive defendant of a fair trial? Defendant contendsthat theprosecutionmade several impropercomments during closing argument indicating that defendant was lying. Defendant concedes that no objectionwas 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. TheStatemaintainsthatthe statements madewere 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 statementsmade. 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 "anopinion 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. Statev. 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: