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 the Thirteenth Judicial 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, Assistant Attorney General, Helena, Montana 

Dennis Paxinos, Yellowstone County Attorney, David 

W. Hoefer, Deputy County Attorney, Billings, Montana 

Filed: 

Submitted on Briefs: August 26, 1993 

Decided: November 2, 1993 
Justice 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 the Montana State Prison to be 

served concurrently and was designated a dangerous offender. 

This Court dismissed Bromgard's initial appeal on August 30, 

1988 for failure to file an appellant's brief or Anders memorandum. 

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 state Appellate Defender was 

appointed as counsel by this Court. We granted the Appellate 

Defender's motion to file an out-of-time appeal. 

The question presented for our review is whether the District 

Court erred in denying defendant's motion for a directed 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 took place between the hours of 4:OO and 5:OO a.m. 

The intruder awakened the victim, threatened her and gagged her 
mouth 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. 

The victim had been able to see her assailant quite clearly as 

a hallway light had been left on during the night. 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 

sketch was shown to a neighbor of Bromgard's who also said the man 

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. The victim identified Bromgard from the lineup 

and also identified Bromgard at trial as the man she had 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's motion for a directed verdict of 

3 
acquittal at 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 not be disturbed absent an abuse of that discretion. State v. 

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. 

[Tlhe defendant is entitled to an acquittal if reasonable men 

could not conclude from the evidence taken in a light most 

favorable to the prosecution 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's bedding with hair samples taken from the victim'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 

4 
microscopically 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 

that provided in this case is insufficient by itself to positively 

identify a person. See, e.q., State v. Faircloth (N.C. App. 1990), 

394 S.E.2d 198. Bromgard contends that the evidence of hair 

comparison by itself is insufficient as a means of identification; 

thus, he claims that because other evidence is insufficient, the 

hair comparison testimony is relevant but 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 sufficient by itself for identification 

purposes as it does not rule out Bromgard as the perpetrator of the 

assault in this case. 

b. The identification made by the victim. 

Bromgard contends that the identification made by the victim 

is insufficient for several reasons. First, Bromgard contends that 

only the victim saw her assailant and the light was limited because 

it came from a 100-watt light in the hallway; therefore, she could 

5 
not have seen him 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 of her assailant. In this case, she saw him clearly 

enough to give the police a description from which police were able 

to create a composite sketch of her 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 

the weight to be given by the jury to the victim'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 

checkbook belonging to the victim's mother which was 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 the victim's bedding from which to link Bromgard to 

the crime. 

6 
The State has no obligation to provide this sort of physical 

proof to prevent a directed verdict 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, the description and identification made by 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. 

7 
We Concur: 

8