NO. 81-82 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Respondent, 

MIKE SHURTLIFF, 

Defendant and Appellant. 

Appeal from: District Court of the Third Judicial District, 

In and for the County of Powell. 

Honorable Robert Boyd, Judge presiding. 

Counsel of Record: 

For Appellant: 

C. F. Mackay, Anaconda, Montana 

For Respondent: 

Honorable Mike Greely, Attorney General, Helena, Montana 

Ted L. Mizner, County Attorney, Deer Lodge, Montana 

Submitted on briefs: July 16, 1981 

Decided: $ 

Clerk 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal from a conviction of simple assault 

in the Third Judicial District of the State of Montana, 

Powell County, the Honorable Robert J. Boyd presiding. The 

defendant had previously been charged, along with two 

others, with the offense of aggravated assault. After the 

charges against the two others were dismissed, the defendant, after waiver of a jury trial, was found guilty of 

assault under section 45-5-201, MCA. 

During the evening of April 8, 1980, a guard at the 

Montana State Prison was struck in the back by two handmade 

darts. The incident occurred while he was conducting the 

9:00 p.m. count in Lower B Unit in Close Unit No. One of the 

prison. The guard was treated in the emergency room of 

Powell County Memorial Hospital, and after the darts were 

extracted from his back, he was inoculated for tetnus and 

given antibiotics. 

Lower B Unit consists of two facing rows of six cells 

each. When hit, the guard was facing the row containing 

cells one through six, with his back to cells seven through 

twelve. The defendant occupied cell twelve at the time of 

the attack. No one saw from which cell the darts came. 

An investigation of the unit immediately after the 

incident resulted in the discovery of three plastic tubes 

used to hang clothes inside the cells. The evidence indicated that the tubes in three cells, including that of the 

defendant, were loose and capable of being removed from the 

walls. Also, the evidence illustrated that to hit the 

guard, a tube had to be aimed through a hole in the cell 

door that was used for passing meals into the cell. 
Defendant testified that he and several other 

inmates, none of whom he could remember, were firing some 

handmade darts into a box, set up in one of the cells, 

minutes before the incident. At trial, it was demonstrated 

that the handmade darts could be propelled for at least 

forty feet by blowing them through one of the plastic tubes. 

The defendant's cell was approximately forty feet from where 

the guard was standing when hit. 

Evidence was introduced that defendant had made two 

separate threats against the guard approximately ten hours 

before the incident. Further , defendant testified at trial 

that he did not like the guard. 

Defendant's fingerprints were found on one of the two 

darts which struck the guard. Defendant testified that the 

fingerprints were on the dart because he sometimes handed 

out the writing paper used for the dart fins to other 

inmates. He also testified that the fingerprints may have 

been placed on the dart when he and the other inmates were 

shooting the darts into the box moments before the incident. 

Defendant, after waiving a jury trial, was found 

guilty of assault under section 45-5-201, MCA. He was 

sentenced to six months in the Powell County jail, with the 

last two months suspended. The sentence was to be served 

consecutively with his present sentence. He now appeals his 

conviction. 

The only issue on appeal is whether the State presented sufficient evidence to support the verdict. 

Defendant contends that there was insufficient evidence for a conviction. He cites encyclopedia law and case 

law that is not relevant to the issue presented. This Court 
in State v. Duncan (1979), 181 Mont. 382, 593 P.2d 1026, 

1029, 36 St.Rep. 748, 751, held that: 

"We set forth the proper standard of review 

in criminal bench trials in State v. Longacre 

(1975), 168 Mont. 311, 313, 542 P.2d 1221, 

1222: 

"'It is the function of the trier of the 

facts, in this case the trial judge, to 

determine the credibility of the witnesses 

and the weight to be given their testimony 

and he may pick and choose which of the 

witnesses are to be believed from a consideration of all of the evidence. gfi~tate v. 

Medicine Bull, Jr., 152 Mont. 34#, 445 P.2d 

916. On appeal we simply determine if there 

is substantial evidence to support the defendant's guilt beyond a reasonable doubt. 

State v. Stoddard, 147 Mont. 402, 412 P.2d 

827, State v. White, 146 Mont. 226, 405 P.2d 

761. ' 

"Thus, the 'substantial evidence' test 

applies to appeals from both judge and jury 

convictions. Therefore, in determining 

whether there is substantial evidence to 

support the verdict entered by the trial 

court, this Court will examine the evidence 

in the light most favorable to the State. -ri$ 

State v. Pascgo (1977), 173 Mont. 121, -596Sbk 

P.2d 802, 805; State v. Stoddard (1966), 147 

Mont. 402, 408, 412 P.2d 827, 831." 

Further, this Court held in State v. Stoddard (1966), 

147 Mont. 402, 408, 412 P.2d 827, 831, that ". . . if the 

record shows any substantial evidence to support the judgment the presumption is in favor of such judgment. State v. 

Robinson, 109 Mont. 322, 96 P.2d 265; State v. Cor, 144 

Mont. 323, 396 P.2d 86." 

Substantial evidence means such relevant evidence as 

a reasonable man might accept as adequate to support a 

conclusion. State v. Merseal (1974), 167 Mont. 409, 416, 

538 P.2d 1364, 1368; 24A C.J.S. Criminal Law, §I880 at 793. 

With these rules in mind, a review of defendant's contentions concerning the evidence shall follow. 

Defendant argues that since there was no eyewitness 
to identify the assailant, the State failed to meet its 

burden of proof. However, defendant offers no other explanation than the one presented by the State and supported by 

the evidence . 

The evidence presented by the State, though circumstantial, was sufficient to uphold a conviction. For 

example, defendant's fingerprints were on one of the darts 

removed from the guard's back. The California Supreme Court 

in People v. Gardner (1969), 79 Cal.Rptr. 743, 747, 457 P.2d 

575, 579, held, " [fl ingerpr int evidence is the strongest 

evidence of identity and is ordinarily sufficient alone to 

identify the defendant." 

Defendant's contention that an eyewitness is necessary to uphold a conviction is without merit. Indeed, the 

criminal justice system would be hard pressed to have an 

eyewitness present at the scene of every crime. Further, it 

is up to the trier of fact, not this Court, to determine if 

the defendant's explanation of the presence of his fingerprints is to be believed. Again, in Gardner, the court 

held: "The jury is entitled to draw its own inferences as to 

how the defendant's prints came to be on the bag and when 

(see People v. Wise, 199 Cal.App.2d 57, 59-60, 18 Cal.Rptr. 

343) and to weigh the evidence and opinion of the fingerprint experts." 457 P.2d at 579. 

The State introduced other evidence showing: the 

defendant had a motive (.el he testified he disliked the 

guard and had threatened him at least twice the day of the 

incident); the defendant's cell was located behind the place 

where the guard was standing; the plastic tube in the defendant's cell was not secured to the wall; and the defendant 
knew how to use the apparatus. When this evidence, though 

circumstantial, is viewed in a light most favorable to the 

State, there is no doubt that the conclusion reached by the 

trier of fact was a reasonable one. 

In State v. Fitzpatrick (1973), 163 Mont. 220, 226, 

516 P.2d 605, 609, we held: 

"To find a person guilty beyond a reasonable 

doubt, each fact in a chain of circumstances 

that will establish guilt need not be proven 

beyond a reasonable doubt. What must be 

proved is that there is not reasonable doubt 

arising from consideration of all the evidence in the case. State v. Medicine Bull, 

Jr., (1968), 152 Mont. 34, 445 P.2d 916; 

People v. Eddy (1954), 123 Cal.App.2d 826, 

268 P.2d 47, 52; People v. Kross (1952), 112 

Cal.App.2d 602, 247 P.2d 44, 51; People v. 

~eihert (1953). 117 Cal.App.2d 410, 256 P.2d 

355, 362." 

Finally, defendant argues that the only evidence the 

State used to convict was circumstantial in nature. In 

State v. Cor (1964), 144 Mont. 323, 326-327, 396 P.2d 86, 

88, this Court held: 

"Circumstantial evidence is not always 

inferior in quality nor is it necessarily 

relegated to a 'second class status' in the 

consideration to be given it. The very fact 

it is circumstantial is not a sufficient 

allegation to justify a reversal of the 

judgment for such evidence may be and frequently is, most convincing and satisfactory. 

In any criminal case, evidence that is 

material, relevant and competent will be 

admitted, 'nothing more and nothing less.' 

The test is whether the facts and 

circumstances are of such a quality and 

quantity as to legally justify a jury in 

determining guilt beyond a reasonable doubt. 

If such be the case, then the court should 

not, indeed cannot, set aside the solemn 

findings of the tri'er of the facts." 

It is clear that a conviction may rest on circumstantial evidence as easily as it rests on direct evidence. 
The State met its burden of proof, and the judgment 

of the trial court is affirmed. 

We concur: 

c-4 Chief Justi e