No. 91

-170 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993 STATE OF MONTANA Plaintiff and Respondent,
-VJIMMY RAY BROMGARD. Defendant and Appellant

APPEAL FROM: District Court of theThirteenthJudicial District, In and for the County of Yellowstone, The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD: For Appellant: William F. Hooks, Appellate Defender, Helena, Montana For Respondent: Hon. Joseph P. Mazurek,Attorney General,George M. Schunk,AssistantAttorneyGeneral,Helena,Montana Dennis Paxinos,Yellowstone County Attorney, David W. Hoefer,Deputy CountyAttorney, Billings,Montana

Filed: Submitted on Briefs: August 26, 1993 Decided: November 2, 1993Justice Fred J. Weber delivered the Opinion of the Court. Jimmy Ray Bromgard (Bromgard) appeals from a judgment of the Thirteenth Judicial District, Yellowstone County. In November 1987, a jury convicted Bromgard of three counts of sexual intercourse without consent. Bromgard was sentenced to three forty

-year terms of imprisonment in theMontana State Prison to be served concurrently and was designated a dangerous offender. This Court dismissed Bromgard's initial appeal on August 30, 1988 for failureto filean appellant'sbrief orAndersmemorandum. On March 29, 1991, Bromgard filed a petition for post
-conviction relief. This Court denied relief on six of the seven claims alleged: 

### we granted relief on Bromgard's claim of ineffective assistance of counsel by virtue of his counsel's failure to properly appeal the convictions. The stateAppellate Defender was appointed as counsel by this Court. We granted the Appellate Defender's motion to file an out
-of

-time appeal. The questionpresented for our review iswhether the District Court erred indenying defendant'smotion foradirected verdict of acquittal at the close of the defendant's case-in

-chief. We affirm. In the early morning hours of March 20, 1987, an intruder entered the home of a Billings family through a bathroom window. In addition to burglarizing the home, the intruder raped an eightyear-old girl while the rest of the family slept. The assault tookplacebetween thehours of 4:OO and 5:OOa.m. The intruder awakened the victim, threatened her and gagged hermouth with clothing,and then committed acts of oral, vaginal and anal intercourse. He then put a pillow over her head and left. After the man left, the victim woke her father. Her father woke the victim's mother so that he could look around the house. He noticed a bathroom window propped open with a stick and immediately notified the police. The victim was taken to a physician who confirmed that she had been vaginally and anally raped. Thevictim had been able to seeher assailantquite clearly as a hallway lighthad been left 

### onduring thenight. A police artist made a composite sketch of the assailant from the description the victim gave to him. Another officer looked at the sketch and mentioned that he thought the sketch looked like Bromgard. The sketchwas shown to a neighbor of Bromgard'swho also said theman in the sketch was Bromgard. Police also found a stolen checkbook belonging to the victim's mother near Bromgard's home. The Billings police then conducted a lineup 

### of six people, including Bromgard. Thevictim identified Bromgard from the lineup and also identified Bromgard at trial as the man shehad picked out of the lineup. Bromgard agreed to submit head and pubic hair samples. These samples were sent to the State Crime Laboratory and were found to be indistinguishable from certain samples recovered from the victim's bedding. Bromgard was arrested, charged and tried on three counts of sexual intercourse without consent. The District Court denied Bromgard's counsel'smotion for a directed verdict of
3acquittalat the close of Bromgard's case-in

-chief. Bromgard guilty of all three counts. The jury found

Did the District Court err in denying Bromgardgs motion for a directed verdict of acquittal at the close of the evidence? Defense counsel moved the court to direct a verdict of acquittal on the ground that the evidence was conjectural and insufficient to prove Bromgard's guilt beyond a reasonable doubt. The motion was denied. The decision to direct a verdict in favor of a defendant lies within the discretion of the trial court and will notbe disturbed absent anabuse of thatdiscretion. Statev. Haskins (1992), 255 Mont. 202, 210, 841 P.2d 542, 547. A directed verdict of acquittal is appropriate only when there is no evidence to support a guilty verdict. Haskins, 841 P.2d at 547. [Tlhedefendant 

### is entitled to an acquittal if reasonablemen could not conclude from the evidence taken in a light most favorableto theprosecution that guilt has been proved beyond a reasonable doubt. State 

### v. White Water (1981), 194 Mont. 85, 87

-88, 634 P.2d 636, 638. Bromgard contends that the evidence offered by the State fell into three categories, none of which supports the conviction. We will address each category separately.
a. The hair sample comparison. The State Crime Lab compared hair samples found in the victim'sbedding with hair samples taken from thevictim's head and with Bromgard's head and pubic hair samples. Forensic scientist Arnold Melnikoff of the State Crime Lab testified that both head hair and pubic hair taken from the victim's bedding were 4microscopically comparable to the samples provided by Bromgard. Unlike fingerprint comparison, hair comparison does not produce absolute identification. Melnikoff testified that in his experience the odds were one in one hundred that two people would have head hair pubic hair so similar that they could not be distinguished by microscopic comparison and the odds of 

### both head and pubic hair from two people being indistinguishable would be about one in ten thousand. Other courts have held that hair analysis evidence such as thatprovided in this case is insufficientby itself to positively identify a person. See, e.q., Statev. Faircloth (N.C. App. 1990), 394 S.E.2d 198. Bromgard contends that the evidence of hair comparisonby itself is insufficient as a means of identification; thus, he claims that because other evidence is insufficient, the hair comparisontestimony isrelevantbut not conclusive. Bromgard also cites Faircloth for the premise that comparative hair microscopy serves to exclude persons and is conclusive only to negative identity. Faircloth, 394 S.E.2d at 202. We need not rule on whether such evidence 

### is sufficientby itself for identification purposes as 

### it doesnot rule out Bromgard as theperpetrator of the assault in this case. b. The identification made by thevictim. Bromgard contends that the identification made by the victim 

### is insufficient for severalreasons. First,Bromgard contends that only thevictim sawher assailantand the lightwas limited because it came from a 100

-watt light in the hallway; therefore, she could
5not have seenhim clearly. Next, Bromgard contends that the lineup
was suggestive and that the victim's identification at the lineup was less than positive. Finally, he contends that the victim became less sure as time passed that she had identified the right person. We find none of these arguments compelling. The jury is in the best position to judge the credibility of the victim and her identification ofher assailant. Inthis case, she sawhim clearly enough to give thepolice a description fromwhich policewere able to createa composite sketch ofher assailant, which led to further investigation of Bromgard. She identified Bromgard from a live lineup which did not prejudice Bromgard. Any inconsistencies, indecision or flaws in the victim's testimony more properly go to theweight to be givenby the jury to thevictim's testimony. This is a matter which is within the province of the jury.
c. Lack of other physical evidence. Bromgard next contends that there was no physical evidence other than the hair comparison evidence and a composite sketch to link him to the offense. Specifically, he claims that the checkbookbelonging to thevictim's mother whichwas found near his home 

### is not relevant because there was no discernible pattern or route established by the State between the victim's home and Bromgard's residence. He further contends that there was no fingerprint evidence or other forensic evidence from the blood stains found on thevictim's bedding fromwhich to link Bromgard to the crime.

6The State has no obligation to provide this sort of physical proof toprevent a directedverdict of acquittal from being entered in favor of the defendant. A conviction may be based on circumstantial evidence alone. State v. Atlas (1986), 224 Mont. 92, 95, 728 P.2d 421, 423. When circumstantial evidence is susceptible of two interpretations, one supporting guilt and the other supporting innocence,the trier of fact determines which is most reasonable. State 

### v. Tome (1987), 228 Mont. 398, 401, 742 P.2d 479, 481. The State introduced other evidence in addition to the hair microscopy analysis,thedescriptionand identificationmadeby the victim and the placement of the checkbook in the location of Bromgard's home. This consisted of further testimony inculpating Bromgard. Friends testified that on the date of the incident, Bromgard probably arrived home between 3:OO and 4:OO a.m. from an evening 

### of drinking and cruising town. The victim's home was within walking distance of Bromgard's home and the assault took place shortly before 4:45 a.m. This testimony tends to establish the opportunity Bromgard had to commit the assault. We conclude that there was sufficient evidence to submit the question 

### of Bromgard's guilt to the jury. We hold the District Court did not err in denying Bromgard's motion for a directed verdict of acquittal at the close of his
case-in

-chief. AFFIRMED.

7We Concur:

8