### No. 82-132 INTHE SUPRE1,IECOURT OF THE STATE OF MONTANA 1982

STATE OF MONTANA, Plaintiff and Respondent,

VS

# . HERBERT RICHARD LOZEAU, Defendant and Appellant.

Appeal from: District Courtof the Fourth JudicialDistrict, In and for theCounty of Lake Honorable James B. 

### Wheelis, Judge

### re siding. Counsel of Record: ForAppellant: K. M. 

### rid ens tine, Polson,Montana For Respondent: Hon. Mike Greely,Attorney General, Helena,Montana Richard 

### P. Heinz,CountyAttorney,Polson,Montana

Submitted on briefs: August 26, 1982 D!ecided: September 9,1982 Filed:

## "P J @*;!

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### Clerkiqr. Chief Justice Frank I. Haswell delivered the Opinion of theCourt. Defendant was charged and convicted of the crime of aggravated assault following a jury trial, and judgment was entered thereon. Followingdenial of defendant's motion for

a new trial, defendant appeals. We affirm. Although defendant phrases the issues on appeal in threeparts, thebasic issuepresented is thesufficiencyof the evidence to support the conviction--more specifically, the sufficiency of the evidence to support a finding that tnedefendantwas 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 assaultvictim, 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, assaultedthetwo women, Donna Houle and Linda Stewart. Donna lost consciousness and fell to the floor, and Linda bent down on the floor attendingtoher. Immediately after Cooper struck the women, Ignace Couture grabbed Cooper's shoulder and took him outthefront 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 thedefendant approaching thegroupoutside. Hethought the defendantwas upset thathisgirlfriend had been struck in the bar so he told him to take it easy. The bartender alsotestifiedhe thought he saw thedefendantgo inbetween John Saloway and GeraldCooper who were standing therearguing. He thought the defendant was going tohit Cooper and then saw thedefendant's armmove toward Cooper's stomach. John Saloway alsotestified thathe saw ahand come in just before Cooper grabbed his stomach saying, "I've been stabbed." The victim, Cooper, testified thathe experienced

a sharp pain while Couture was holding his shoulders and talking tohim infrontof thebar. 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 towhere 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 sevenor eightblocks 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 thebar with respect toDonna Houle or Linda Stewart, nor didhe remember arguing with John Saloway outsideon the sidewalk. He did remember experiencing a sharp pain in his side while Couture was holding hisshouldersand talking tohim.No eyewitness testified thatdefendant 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 guiltyof 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 inthelightmost favorable totheprosecution, would allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. Statev. Doney (1981), Mont

# . , 636 P.2d 1377, 1383, 38 St.Rep. 1707, 1713, and cases therein cited. The State 

### is aided by a strongpresumption 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 allthe evidence in the lightmost 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 thiscase the Statewas required toprove beyond areasonable doubt that the defendant purposely or knowingly caused seriousbodily injury toGerald Cooper or negligently caused bodily injurywith a weapon. Section 45-5-202(1)(a) and (b),MCA. The element of "purposely and knowingly" was established through testimony regarding thevoluntarymotion of defendant's arm tothe victim's abdomen and supported by evidenceof motive intestimony furnishedby thedefendant's drinking buddies and his girlfriend, Donna Houle, about Cooper strikingDonna 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 thatthewound was caused by a knifewith

a blade atleastone 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 evidencewas presented toestablish that defendant stabbed Cooper. Witnesses Steve Moon, George Mitchell, John Saloway and Ignace Couture testified that the defendant was atthe scene of the assault in front of the bar. SteveMoon, 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 thistestimony, considered collectively, thejury concluded that defendant stabbed Cooper with a knife. Sec-

### tion 26-1-501,MCA, 

### permits the jury to make such inferences based on the factsproved. "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 themotion 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 Statev. Cors (1964), 144Mont. 323, 396 P.2d 86. The jury's conclusion thatdefendant 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 allthe facts and circumstances are examined collectively, there is substantialevidence, viewed inthe lightmost favorabletothe State, proving defendantguiltyof aggravated assault. Defendant's arguments thathismotion fordismissal 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 tosupport the conviction. Affirmed.

Chief ~ustice \