No

No. 96-236

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 138

STATE OF MONTANA,

Plaintiff and Respondent,

v.

KATHLEEN COCHRAN, 

Defendant and Appellant.

 APPEAL FROM: District Court of the Seventeenth Judicial District,

In and for the County of Blaine,

The Honorable John C. McKeon, Judge presiding.

COUNSEL OF RECORD:

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For Appellant:

William F. Hooks, Appellate Defender Office, Helena, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana; 

Mark Harshman, Blaine County Attorney, Chinook, Montana

Submitted on Briefs: December 30, 1997

 Decided: June 9, 1998

Filed:

__________________________________________

Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

¶1 Kathleen Cochran (Cochran) appeals from the judgment entered by the Seventeenth 

Judicial District Court, Blaine County, on a jury verdict, convicting her of felony assault, 

and specifically from the District Court’s denial of her motion to suppress evidence, her 

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motion for a directed verdict of acquittal, and her motion for a mistrial. We reverse.

¶2 Although Cochran raises several issues on appeal, we address only one, which is 

dispositive of this case: did the District Court abuse its discretion when it denied 

Cochran’s motion for a directed verdict.

BACKGROUND

¶3 Because the issue in this case involves the sufficiency of the evidence presented to 

support Cochran’s conviction, we review in detail the following facts presented at trial. 

Police Officer Robert Painter was on patrol duty at approximately 4:30 a.m. on January 

10, 1995, in Harlem, Montana, when he saw Cycil Jackson walking down the street. 

Painter approached him in his vehicle and asked him what he was doing at that hour. 

Jackson responded that he was on his way to a friend’s house. Painter noticed that Jackson 

was holding his right arm, but assumed it was simply because Jackson was cold. Painter 

continued his patrol duties. 

¶4 Fifteen to twenty minutes later, Painter saw Jackson again, approximately six city 

blocks from his first encounter. This time Painter got out of his car and approached 

Jackson. Jackson told him that his friend was not home, so he was walking to his brother’s 

house. Painter offered him a ride, but Jackson declined. Painter noticed that Jackson was 

still holding his arm, but again assumed that Jackson was simply cold. 

¶5 A little while later, Painter was dispatched to the home of Victoria Johnson. Painter 

was aware that Johnson resided with Lloyd Jackson, who was Cycil Jackson’s brother. As 

Painter was driving to the home, he received another message that Johnson had withdrawn 

her request for police assistance. Painter went off duty at approximately 5:30 a.m.

¶6 According to Johnson, she was awakened during the early morning hours to the sound 

of someone knocking on her door. When she realized it was Jackson, she invited him in. 

Both Lloyd Jackson and she could see he was bleeding from his arm. Johnson asked 

Jackson if he had been stabbed, but he denied it, and instead stated that he had fallen on 

glass. Although his brother also repeatedly asked him what had happened, Jackson never 

gave him an explanation. Johnson telephoned the police, but canceled the call after 

Jackson told her that he did not want the police involved. 

¶7 Johnson and Lloyd Jackson then took Jackson to the Indian Health Services Hospital at 

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Fort Belknap where he was treated by Dr. Ethel Moore. Dr. Moore testified that Jackson 

had sustained three wounds to his left arm: one across the shoulder joint, one in the midupper arm, and one just above the elbow. The two upper wounds were shallow and less 

than a half-inch in length, while the lower wound was deep and was an inch to an inch and 

a half in length. She characterized his wounds as stab wounds which could have been 

inflicted by a knife or a pair of sharp scissors. However, Jackson again denied having been 

stabbed and refused to tell her how he sustained the wounds. 

¶8 In the meantime, Officer Charles Hunger, who is employed by the Fort Belknap BIA 

Police Department, was told that there was a stabbing victim in the emergency room and 

was dispatched to the hospital. However, Jackson similarly refused to tell Hunger what 

had happened, where he received his injuries, or who had been involved. Because Jackson 

was uncooperative, Hunger feared that there may be another victim somewhere. Hunger 

thus spoke with Jackson’s brother, Lloyd, who informed him that he did not know how 

Jackson sustained the wound. Lloyd did tell him that Jackson lived with Kathleen 

Cochran, and gave him their address in Harlem, Montana. Because Harlem was outside of 

Hunger’s jurisdiction, Painter, who by now was off work, was dispatched by the Harlem 

Police Department to assist Hunger. 

¶9 Painter, Hunger, and a criminal investigator named Martin Wilke proceeded to 

Jackson’s residence. As they approached the trailer house, they observed blood on the 

second stair leading to the house and blood in front of the windows in the snow. The three 

officers knocked on the door and on the windows on the north and east sides of the trailer, 

with no response. As they walked around the trailer, they observed no signs of a struggle 

or fight in the snow outside the residence. Painter saw blood droplets to the area north of 

the trailer with one set of footsteps by the blood spots. On the east side of the trailer, 

Painter and Hunger noticed that curtains in the east side window opened, then closed, but 

they did not see a person at that time. 

¶10 While on the south side of the trailer, the officers heard voices and a banging noise 

coming from the inside of the trailer. It sounded to them as if a male and a female were 

fighting or wrestling. Painter testified that he heard a male state that he was going to get a 

gun, and a female trying to keep him from getting the gun. The officers feared that 

someone inside was about to be hurt. Painter thus radioed to the dispatch officer and 

informed him that there was an altercation proceeding in the trailer, and he did not have 

time to obtain a search warrant. He then forcibly entered, and Hunger and Wilke followed 

him inside. 

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¶11 Once inside, the officers discovered that the noise they had heard was actually coming 

from a television. They also found three individuals smeared with blood to varying 

degrees. The first individual was a man lying on the couch in the living room. According 

to Painter, he "was really hard to wake up." When he finally regained consciousness, he 

identified himself as Stan Lindemulder. 

¶12 The officers located a second man in the bathroom, who was later identified as 

William Azure, also known as Billy Rose. Rose was sitting fully clothed in the bathtub 

with his legs draped over the edge as though he had been pushed in. He was intoxicated 

and was kicking and mumbling incoherently. He appeared to be trying to get out of the 

tub. Painter observed blood on his right coat sleeve. 

¶13 Finally, in a bedroom where the officers had seen the curtains moving from the 

outside of the trailer, they located Kathleen Cochran. She was on her stomach on the floor, 

wearing a sweat top and spandex bicycle shorts inside out. They observed blood on her 

top, shorts, hands, feet, face and hair. Cochran appeared to be asleep, and the officers were 

unable to awaken her. They also noticed a set of keys clutched tightly in her fist. For their 

protection they took the keys in the event she did wake up or if she were only pretending 

to be passed out. 

¶14 Painter returned to the Harlem Police Department, which was one block away, to 

obtain a camera and some sheets of paper to question the individuals and read them their 

rights, while Hunger and Wilke stayed with the individuals at the house. After taking the 

pictures, Painter was eventually able to awaken Cochran by standing her on her feet. He 

then placed Lindemulder, Rose and Cochran under arrest when they refused to cooperate 

or answer questions about what had happened. 

¶15 Before leaving the trailer, the officers also observed blood on the kitchen floor, the 

table, and in the sink. In a wash basin in the kitchen sink they saw bloody water and a 

meaty tissue. They also observed a pair of scissors in the garbage can sitting on the top of 

the trash, that appeared to be functional and very clean. 

¶16 After placing the individuals under arrest, Painter obtained a search warrant, and 

returned to the trailer. Among various items of evidence seized, Painter seized several 

knives, a broken plate, a pint-size empty bottle of Black Velvet whiskey that had blood on 

it, the pair of scissors in the garbage can, and a tin can that had been converted into a first 

aid kit, which was sitting on the table. The lid to the can was off and it contained gauze 

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pads and rolls. He also seized a pair of blood-stained women’s jeans which were located 

under a shelf in a bedroom. Later that day, Painter also retraced the route he had seen 

Jackson walking on earlier. He observed blood droplets in various places along the route. 

¶17 Subsequently, Cochran was charged by information with committing the felony 

offense of assault in violation of § 45-5-202(2)(a), MCA (1993), by stabbing Jackson with 

a knife or scissors. At trial, Painter demonstrated how the scissors he had seized were still 

functional. He also showed the jury a picture he had taken of Cochran’s hand that depicted 

one large cut and several scratches. Painter demonstrated that when he held the scissors in 

his hand by grasping the blade of the closed scissors, the edge made contact with the lower 

part of his palm which approximated the area on Cochran’s smaller hand where she was 

cut.

¶18 However, Jackson offered another explanation at trial as to how both Cochran and he 

sustained their wounds. Jackson specifically denied that Cochran stabbed him, and he 

specifically denied that he had ever told Johnson he injured himself by falling on glass. 

Instead, he blamed his injuries on two unknown assailants. 

¶19 Jackson elaborated on the events that allegedly unfolded. He testified that he has lived 

with Cochran since the summer of 1993, and he continued to live with her throughout the 

trial. At approximately 10:00 p.m, Cochran and he went to a bar and played pool with 

Lindemulder and the bartender. Rose, who was with them at the trailer, stayed behind. 

Jackson drank two beers and two shots of whiskey, and at approximately 11:00 p.m., 

Cochran, Lindemulder and he returned to the trailer. Rose was still there and the four sat 

around drinking and talking. According to him, no one was arguing or fighting during this 

time period. 

¶20 Lindemulder eventually passed out on the couch, and Rose passed out in a back room 

while Cochran and Jackson continued drinking and talking. After they had passed out, 

Jackson claims he exited the trailer to investigate a banging noise. He discovered two 

people whom he had never seen before wrestling by the stairs to the front door. Jackson 

approached the two men to try to break up the fight. He was not concerned for his own 

safety, because he had been an amateur boxer and believed he could defend himself. 

However, when he tried to push the two men apart, he felt some pain in his arm. When he 

grabbed his arm, it felt wet, and he realized he had been stabbed. Jackson did not see a 

knife, and he does not know which person actually stabbed him. He then walked back to 

the trailer, and he said he saw the two individuals run away in a northern direction. 

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¶21 Once inside the trailer, Jackson claims that he grabbed four steak knives and intended 

to assault the two men who had injured him. Before he could, however, Cochran grabbed 

his arm with both hands to stop him, and in the process she got blood on herself. She also 

scratched her own hand on the knifes when he attempted to jerk away from her. 

Eventually, Cochran dissuaded him from going after the two men, and she attempted to 

bandage his arm. When the bleeding did not stop, he walked to a friend’s home for help 

and when the friend was not home, he walked to his brother’s home. It was during his 

walk that he encountered Officer Painter twice.

¶22 Although the police station was one block from Cochran’s home, Jackson said he did 

not want to walk there or tell the police what had happened because he feared they had a 

warrant out for his arrest in connection with other events. For that same reason, when he 

learned that Johnson had telephoned the police at his brother’s home, he requested that she 

cancel the call. However, although the police now know where Jackson is, Jackson has 

still refused to talk with either the police or with anyone from the County Attorney’s 

office about the incident. 

¶23 Rose was also called as a witness at the trial. Rose had been a longtime friend of 

Cochran and her family since she was a child. Although he could not remember any 

particular dates, he did recall an incident when Jackson was injured at Cochran’s 

residence, but he "wasn’t paying too much attention" because he was "cooking vegetable 

soup." According to Rose, there was a party going on and people were coming and going, 

but again he was not paying attention to who else might have been there. When questioned 

whether he saw Jackson bleed, he again responded that he "didn’t pay no attention." Rose 

recalled giving a statement to Officer Painter in January about the incident, but at the time 

of trial he claimed he did not recall any alleged statement that he saw Cochran grab 

Jackson and turn him around. He also claimed he did not recall any statement that he 

heard Jackson say to Cochran "Ouch, don’t do that." No alleged statement of Rose was 

ever offered or admitted into evidence. Painter did not testify about Rose’s alleged 

statement.

¶24 Lindemulder did not testify. He was not a resident of Harlem, and the prosecution was 

unsuccessful in its attempts to locate him. 

¶25 At the close of the State’s case, Cochran moved for a directed verdict. The court 

denied the motion, and the jury ultimately convicted Cochran of felony assault. The court 

sentenced her to a term of two years in the Montana State Prison on the charge of felony 

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assault, and an additional six years because the offense was committed with a dangerous 

weapon. Cochran appeals.

DISCUSSION

¶26 Did the District Court abuse its discretion when it denied Cochran’s motion for a 

directed verdict?

¶27 The State charged Cochran with felony assault in violation of § 45-5-202(2)(a), MCA, 

which provides:

(2) A person commits the offense of felony assault if the person purposely or 

knowingly causes:

(a) bodily injury to another with a weapon[.] 

In this case, it was necessary for the State to prove that Cochran (1) purposely or 

knowingly, (2) caused bodily injury to Jackson, (3) with a weapon. At the close of the 

State’s case, Cochran moved for a judgment of acquittal on the grounds that the State 

failed to prove that it was Cochran who stabbed Jackson. 

¶28 Pursuant to § 46-16-403, MCA, a district court may direct a verdict of acquittal and 

dismiss a criminal action when the evidence is insufficient to support a verdict of guilty. 

Section 46-16-403, MCA, provides:

When, at the close of the prosecution’s evidence or at the close of all the 

evidence, the evidence is insufficient to support a finding or verdict of guilty, 

the court may, on its own motion or on the motion of the defendant, dismiss 

the action and discharge the defendant. However, prior to dismissal, the court 

may allow the case to be reopened for good cause shown. 

We review a trial court’s denial of a motion for a directed verdict to determine whether, 

after viewing the evidence in the 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. Granby (1997), 283 Mont. 193, 199, 939 P.2d 1006, 1009 (citation omitted). A 

district court’s decision lies within its sound discretion and will not be overturned absent 

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an abuse of that discretion. State v. Romannose (1997), 281 Mont. 84, 88, 931 P.2d 1304, 

1307 (citation omitted). 

¶29 In this case, we conclude that there is insufficient evidence to establish that it was, in 

fact, Cochran who assaulted Jackson. First, no direct evidence links Cochran to the crime. 

No witness testified that Cochran stabbed Jackson. Jackson himself never claimed to his 

family, the police, or his physician that he had been stabbed by Cochran, and at trial he 

expressly denied that it was she who assaulted him. The State argues that Jackson’s 

account of how he sustained his wounds is not believable because both Officers Painter 

and Hunger testified that there was no sign of a scuffle with two other persons in the snow 

outside the trailer. Additionally, at no time did Jackson report the crime or take any steps 

to locate and prosecute these two unidentified assailants. However, proving that someone 

other than these two alleged unknown men stabbed Jackson does not constitute proof that 

Cochran stabbed him. 

¶30 Second, the circumstantial evidence was equally insufficient. Officers Painter and 

Hunger found blood inside the trailer, particularly in the kitchen area, and to varying 

degrees on each of the three persons located in the home. They also observed signs of a 

scuffle inside the trailer, such as the broken plate. Although the evidence thus indicates 

that Jackson was probably stabbed inside the trailer, no evidence established that it was 

Cochran, as opposed to Rose or Lindemulder, who assaulted Jackson. The State argues 

that more blood was found on Cochran than on Rose or Lindemulder and that blood was 

found on a pair of jeans she had allegedly hidden. But the quantity of blood does not 

necessarily establish guilt. It is just as possible that blood got on Cochran when she 

attempted to give Jackson first aid, as he testified. The State presented no evidence as to 

when the blood got on the pants.

¶31 The State argues that other evidence suggests that Cochran is guilty. It points to the 

"suspicious disposal" of the clean, functional scissors. However, the State presented no 

evidence that Jackson sustained his wounds from the scissors, as opposed to a knife, and 

no evidence suggests that it was Cochran rather than Rose or Lindemulder who threw the 

scissors away. Additionally, the scissors were located on the top of the garbage in plain 

view; they were not "suspiciously" buried or hidden.

¶32 The State also points to cuts on Cochran’s hands. Again, however, there is no 

evidence establishing when she got the cuts, and none of the kitchen implements were 

directly tied either to her cuts or to the stab wounds. Even if the cuts were obtained on the 

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evening of the incident, it is possible that she cut herself while trying to grab knives from 

Jackson’s hands, as Jackson testified. 

¶33 The State next argues that Cochran’s behavior when the police arrived indicates a 

consciousness of guilt. The State insists that Cochran was only feigning sleep when the 

police arrived, and that she was the only person who could have opened and shut the 

curtains to the trailer moments before the police entered. However, the police did not 

actually see a person at the window when the curtains briefly opened and shut. Even 

assuming a person did open and shut the curtains, it could have been Rose, for example, 

who, although was heavily intoxicated when the police entered, was nevertheless awake. 

No evidence other than pure speculation indicates that Cochran was pretending to sleep. 

Officer Painter testified that he was unable to awaken Cochran until after he had retrieved 

his camera, taken pictures, and then forcibly stood her on her feet. 

¶34 We conclude that the evidence presented was not sufficient to establish that it was 

Cochran who assaulted Jackson. Accordingly, we hold that the District Court abused its 

discretion when it failed to direct a verdict in favor of Cochran and dismiss the case. 

Cochran’s conviction for felony assault is reversed and her sentence is vacated.

/S/ WILLIAM E. HUNT, SR.

 We Concur:

 /S/ J. A. TURNAGE

/S/ JIM REGNIER 

/S/ TERRY N. TRIEWEILER

/S/ W. WILLIAM LEAPHART

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