NO. 81-82 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

STATE OF MONTANA, Plaintiff and Respondent,

MIKE SHURTLIFF, Defendant and Appellant.

Appeal from: DistrictCourt of theThird JudicialDistrict, In and fortheCounty 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, DeerLodge, Montana

Submitted on briefs: July 16, 1981 Decided: 

### $

ClerkMr. JusticeGene B. Daly delivered the Opinion of theCourt. 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 assaultunder section45-5-201, MCA. During the evening of April 8, 1980, a guard atthe 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 inLower B Unit inCloseUnitNo. 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 consistsof two facingrows of sixcells each. When hit, the guard was facing the row containing cells one through six, with hisback to cells seven through twelve. The defendant occupied cell twelve atthe timeof the attack. No one saw fromwhich cellthedartscame. 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 thatwas used forpassingmeals intothe 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. Attrial, it was demonstrated that the handmade darts could be propelled for at least fortyfeetby blowing them through one of theplastictubes. The defendant's cellwas approximately fortyfeetfromwhere theguard was standingwhen hit. Evidence was introduced that defendant had made two separate threats against the guard approximately ten hours before the incident. Further

## , defendant testified attrial thathe did not liketheguard. Defendant's fingerprintswere 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 dartwhen he and the other inmates were shooting thedartsintothebox 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 sixmonths in the Powell Countyjail, with the last two months suspended. The sentence was to be served consecutivelywith hispresent sentence. Henow appealshis conviction. The only issue on appeal 

### is whether the State presented sufficientevidence tosupportthe verdict. Defendant contends that there was insufficient evidence for a conviction. He cites encyclopedia law and case law that 

### isnot relevant tothe issuepresented. ThisCourtin 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 incriminalbench trialsin Statev. 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, Statev. 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, thisCourt held in Statev. Stoddard (1966), 147 Mont. 402, 408, 412 P.2d 827, 831, that

# ".



# .. if the record shows any substantial evidence to support the judgment thepresumption 

### is infavor of suchjudgment. Statev. 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 at793. 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 offersno other explanation than the one presented by the Stateand 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 CaliforniaSupreme Court inPeople v. Gardner (1969), 79 Cal.Rptr. 743, 747, 457 P.2d 575, 579, held, 

### "[flingerprint evidence 

### is the strongest evidence of identity and 

### is ordinarily sufficient alone to identify thedefendant." 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 eyewitnesspresent atthe scene of everycrime. Further, it 

### is up tothe trier of fact, not thisCourt, todetermine if the defendant's explanation of the presence of his fingerprints 

### is to be believed. Again, in Gardner, the court held: "Thejury is 

### entitledtodraw its

### own inferences asto how the defendant's prints came to be on the bag and when (seePeople v. Wise, 199Cal.App.2d 57, 59-60, 18Cal.Rptr. 343) and toweigh the evidence and opinion of the fingerprintexperts." 457 P.2d at579. The State introduced other evidence showing: the defendant had a motive (.elhe 

### testified he disliked the guard and had threatened him atleast twice the day of the incident);thedefendant's cellwas locatedbehind theplace where theguard was standing; theplastictube inthe defendant's cell was not secured to the wall; and the defendantknew how to use the apparatus. When this evidence, though circumstantial, 

### is viewed in a light most favorable to the State, there 

### isno doubt that the conclusion reached by the trier of factwas 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 willestablish 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, thisCourt 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 

### isclear that a convictionmay reston circumstantialevidence aseasilyasit restson directevidence.The State met 

### its burden of proof, and the judgment of the trial court 

### is affirmed.

We concur: 

# c-4 Chief 

### Justie