No. 82-132 

IN THE SUPRE1,IE COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

HERBERT RICHARD LOZEAU, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Lake 

Honorable James B. Wheelis, Judge re siding. 

Counsel of Record: 

For Appellant: 

K. M. rid ens tine, Polson, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Richard P. Heinz, County Attorney, Polson, Montana 

Submitted on briefs: August 26, 1982 

D!ecided: September 9, 1982 

Filed: "P J @*;! 

Y 

Clerk 
iqr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Defendant was charged and convicted of the crime of 

aggravated assault following a jury trial, and judgment was 

entered thereon. Following denial of defendant's motion for 

a new trial, defendant appeals. We affirm. 

Although defendant phrases the issues on appeal in 

three parts, the basic issue presented is the sufficiency of 

the evidence to support the conviction--more specifically, 

the sufficiency of the evidence to support a finding that 

tne defendant was the assaulter. 

Defendant Herbert Richard Lozeau was drinking at a 

tavern in Ronan, Montana, on the evening of June 5, 1980. 

Several regular customers of the bar were there that 

evening: Donna "Chicken" Houle, Linda Stewart, Ignace 

Couture, George Mitchell, John Saloway, Jeff Dance, Dennis 

Webster, Vonnie Webster, Gerald Cooper, and defendant Rick 

Lozeau. Defendant and Donna Boule, although unmarried, are 

the parents of a daughter. 

During the course of the evening, Gerald Cooper, the 

assault victim, became intoxicated. Cooper took Donna Houle 

out the back door of the bar into the alley attempting to 

get her to go out with him, but she refused and they both 

reentered the bar. At that time, the victim, Cooper, assaulted the two women, Donna Houle and Linda Stewart. Donna 

lost consciousness and fell to the floor, and Linda bent 

down on the floor attending to her. 

Immediately after Cooper struck the women, Ignace 

Couture grabbed Cooper's shoulder and took him out the front 

door of the bar. Saloway and the bartender followed them. 

The bartender watched while Saloway and Cooper argued. 
Couture stood in front of Cooper the whole time with his 

hands on Cooper's shoulders. 

Just before the stabbing, the bartender, Steve iiloon, 

saw the defendant approaching the group outside. He thought 

the defendant was upset that his girlfriend had been struck 

in the bar so he told him to take it easy. The bartender 

also testified he thought he saw the defendant go in between 

John Saloway and Gerald Cooper who were standing there arguing. He thought the defendant was going to hit Cooper and 

then saw the defendant's arm move toward Cooper's stomach. 

John Saloway also testified that he saw a hand come in 

just before Cooper grabbed his stomach saying, "I've been 

stabbed." The victim, Cooper, testified that he experienced 

a sharp pain while Couture was holding his shoulders and 

talking to him in front of the bar. 

Saloway and the bartender saw the defendant go back 

into tne bar. George Mitchell, who had remained inside, 

said that after Rick went out the front door to where the 

group had gathered, the next thing he remembered was somebody charging in saying Cooper got stabbed. 

After Cooper was stabbed, Couture took him to the 

hospital. The bartender closed the bar. Defendant walked 

home seven or eight blocks and passed out. 

Cooper, the victim, testified that he was pretty 

intoxicated during the events of that evening and did not 

remember anything that happened inside the bar with respect 

to Donna Houle or Linda Stewart, nor did he remember arguing 

with John Saloway outside on the sidewalk. He did remember 

experiencing a sharp pain in his side while Couture was 

holding his shoulders and talking to him. 
No eyewitness testified that defendant stabbed Cooper. 

The weapon was never found. 

Based on facts gathered during the police investigation, defendant was charged with the offense of aggravated 

assault. He pled not guilty. Following trial, the jury 

returned a verdict of guilty of aggravated assault. Defendant was sentenced to eight years imprisonment with six 

years suspended and credited with time served prior to 

conviction. 

Defendant moved for a new trial which was denied on 

the ground that reasonable men might conclude the State 

proved the allegations of the information beyond a reasonable doubt. This appeal followed. 

We hold that the evidence is sufficient to support the 

conviction. A conviction cannot be overturned when the 

evidence, viewed in the light most favorable to the prosecution, would allow any rational trier of fact to find the 

essential elements of the crime beyond a reasonable doubt. 

State v. Doney (1981), Mont . , 636 P.2d 1377, 1383, 

38 St.Rep. 1707, 1713, and cases therein cited. The State 

is aided by a strong presumption in favor of the correctness 

of the judgment. State v. Shurtliff (1981), Mont . 

, 635 P.2d 1294, 1296, 38 St.Rep. 1798, 1800. On appeal 

we view all the evidence in the light most favorable to the 

State to determine whether it constitutes "such relevant 

evidence as a reasonable mind might accept as adequate to 

support a conclusion" of guilt. State v. Wilson (1981), 

Plont. , 631 P.2d 1273, 1278, 38 St.Rep. 1040, 

1047. 

In this case the State was required to prove beyond a 
reasonable doubt that the defendant purposely or knowingly 

caused serious bodily injury to Gerald Cooper or negligently 

caused bodily injury with a weapon. Section 45-5-202(1)(a) 

and (b), MCA. The element of "purposely and knowingly" was 

established through testimony regarding the voluntary motion 

of defendant's arm to the victim's abdomen and supported by 

evidence of motive in testimony furnished by the defendant's 

drinking buddies and his girlfriend, Donna Houle, about 

Cooper striking Donna unconscious just minutes before being 

stabbed. The element of "serious bodily injury" was supplied by Dr. McDonald's testimony as to the gravity of 

Cooper's wound and that the wound was caused by a knife with 

a blade at least one and one-half inches long. 

Since there were no eyewitnesses who actually saw 

defendant stab Cooper in the abdomen and the weapon was 

never found, circumstantial evidence was presented to establish that defendant stabbed Cooper. Witnesses Steve Moon, 

George Mitchell, John Saloway and Ignace Couture testified 

that the defendant was at the scene of the assault in front 

of the bar. Steve Moon, the bartender, saw the defendant's 

drm move toward Cooper's abdomen. John Saloway saw a hand 

come in quickly just before the victim grabbed his stomach 

saying he had been stabbed. George Mitchell said that 

shortly after defendant left the bar someone ran back into 

the bar saying Cooper had been stabbed. Dr. McDonald 

testified as to the seriousness of Cooper's injury and gave 

his expert medical opinion that the wound was caused by a 

knife. 

From this testimony, considered collectively, the jury 

concluded that defendant stabbed Cooper with a knife. Sec- 
tion 26-1-501, MCA, permits the jury to make such inferences 

based on the facts proved. "The jury is not bound to blindly 

accept defendant's version of the facts. It is free to pick 

and choose the evidence it wishes to believe." State v. 

Sorenson (1980), Mont . , 619 P.2d 1185, 1194, 37 

St.Rep. 1834, 1845. 

Defendant's contention that his conviction was based 

on speculation, conjecture or probability because no witness 

testified that he saw him stab Cooper is without merit. As 

we stated in State v. Shurtliff (1981), - Mont. , 635 

P.2d 1294, 1297, 38 St.Rep. 1798, 1801, a case involving the 

assault of a prison guard with a dart in the back where no 

one saw the defendant throw the dart but motive and 

opportunity were established and his fingerprint was found 

on the dart, we said: 

"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." 

Defendant also argues that the circumstances of the 

case demonstrate a number of credible theories other than 

the guilt of the defendant. He states that the circumstantial evidence applies with equal force against Couture, 

Saloway, Moon, Houle and Stewart. This is not correct. The 

evidence shows the motion of defendant's arm to the victim's 

abdomen and shows motive insofar as defendant is concerned, 

all of which is not true as to these other individuals. 

The issue of the sufficiency of the evidence boils 

down to the credibility of the State's circumstantial evidence versus the defendant's testimony. The jury by its 

verdict resolved this conflict in favor of the State. See, 
State v. Johnson (1982), - Mont . - , 641 P.2d 462, 466, 

39 St.Rep. 419, 423, quoting State v. Cors (1964), 144 Mont. 

323, 396 P.2d 86. The jury's conclusion that defendant held 

a knife in his hand when he moved toward Cooper is a rational finaing of fact, based on the direct evidence that 

defendant approached Cooper extending his arm quickly toward 

Cooper's abdomen; Cooper said, "I've been stabbed"; that 

defendant immediately turned and left the scene of the 

assault; and that Cooper's bodily injury was a serious, 

penetrating knife wound in the abdomen. When all the facts 

and circumstances are examined collectively, there is substantial evidence, viewed in the light most favorable to the 

State, proving defendant guilty of aggravated assault. 

Defendant's arguments that his motion for dismissal or 

acquittal at the close of the State's case and that the 

trial court should have granted his motion for a new trial 

or for judgment notwithstanding tke verdict are answered by 

the foregoing discussion and our finding of sufficient 

evidence to support the conviction. 

Af f irmed. 

Chief ~ustice \