NO. 96-109 IN THESUPREME

COURTOFTHESTATEOFMONTANA 1996

STATEOFMONTANA,

Plaintiff and Respondent,

v. DOUGLASLEMIRE,

Defendant andAppellant.

APPEALFROM: District Court of the Eighth Judicial District,

1nand for the County of Cascade, TheHonorable ThomasM.McKittrick, Judge presiding.

COUNSELOFRECORD:

For Appellant: John Keith, Attorney at Law, Great Falls, Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena, Montana D. Randy Winner, Assistant City Attorney, Great Falls, Montana

Submitted onBriefs: July 11, 1996 crp 10 1596 Decided: September 10, 1996 [d-;'&iJ, suP:~i-z:'<; <.;'J$JEir *r .*,./,-*.._Justice Terry N. Trieweiler delivered the opinion of the Court.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal Operating Rules, the following decision shall not be cited asprecedent andshall bepublished by its filing asapublic document with the Clerk of the SupremeCourt andby areport of its result to State Reporter Publishing Companyand West Publishing Company. Thedefendant, Douglas Lemire, wasconvicted in the City Court of the City of Great Falls of: (1) failure to identify himself after striking an unattended vehicle in violation of §61-7-106, MCA; and (2) failure to obey the basic rule regarding speed restrictions in violation of §61-8-303, MCA. He appealed his conviction to the District Court for the Eighth Judicial District in CascadeCounty, andfollowing anonjury trial, wasagain found guilty and convicted of both charges. Lemire appeals the District Court's judgment. Weaffirm the District Court. The issue on appeal is whether there wassufficient evidence to support the judgment of the District Court. FACTUALBACKGROUND At approximately 6p.m. onFebruary 12, 1995, anorange pickup truck crashed into a burgundy Plymouth Voyager van which was legally parked at the 900block of Seventh Avenue North in Great Falls. The collision resulted in damages to the van totalling $1500.

2At trial, the State called aswitnesses David Morgan andVena

Morgan whoresided at 922Seventh AvenueNorth andheard the impact of the collision. Although neither actually witnessed the collision, both were able to view the scene of the accident just seconds after the impact. Both witnesses testified that anorange pickup backed up from the van and proceeded down Seventh Avenue North. According to the Morgans, the driver then parked the orange pickup, got out, and entered a residence located at 909 Seventh Avenue North. Neither witness wasable to accurately describe the driver of the vehicle. VenaMorgan described the driver asbeing "fairly tall" when, in fact, Lemire is only 5'5" tall. David Morgan stated that the driver was wearing "blue jeans" when, in fact, Lemire waswearing white pants. Despite these discrepancies, both witnesses were certain of the events immediately following the collision and the description of the vehicle involved. Bill Lahr testified that helived at 909Seventh Avenue North

on the night in question, and that hewas aco-worker of Lemire. He stated that Lemire had cometo his homefor a one-half hour visit at approximately 6p.m. onthat date. Officer Keith Kercher of the Great Falls Police Department investigated the collision. Hetestified regarding the damagedone to the van and the manner in which the collision occurred. He related that after questioning the Morgans and then Lahr, he located Lemire's pickup at the Heritage Inn where heworked. The officer inspected the pickup, found scratches and flecks of maroon-colored paint on the pickup, anddetermined that the paint 3flecks matched the color of the damagedvan. Lemire denied any

involvement in the collision, but admitted that heownedthe orange pickup, that he hadvisited Lahr earlier in the evening, andthat he was the only person who had driven the orange pickup that evening. DISCUSSION Wasthere sufficient evidence to support the judgment of the District Court? Whenwereview the sufficiency of evidence in acriminal case, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Statev.Brogan (1993), 261 Mont. 79, 87, 862 P.2d 19, 24. Lemire claims that there wasinsufficient evidence to support his conviction because hewas not identified as the driver of the offending vehicle. This Court has recognized that an essential element of the State's burden of proof in a criminal case is the identification of the defendant as the perpetrator of the crime. Statev.Stringer (1994), 263 Mont. 295, 301, 868 P.2d 588, 591. In support of his claim, Lemire points to the lack of eyewitnesses to the actual collision; the discrepancies in David Morgan's andVena Morgan's descriptions of the driver whencompared to him; the lack of significant damageto his pickup, and the failure of Officer

4Kercher to obtain samples of the paint found on Lemire's pickup

bumper and compare it to the paint on the van. However, in Shingerweheld that "a state can satisfy its burden of proving identity through circumstantial evidence." Stringer,263 Mont. at 301, 868 P.2d at 591. In fact, circumstantial evidence may, even by itself, be sufficient to sustain aconviction. state v. Bromgard (1993), 261 Mont. 291, 295, 862 P.2d 1140, 1142. Furthermore, even where, as in this case, the State's proffered evidence contains discrepancies or is met with conflicting evidence produced by the defendant, it does not necessarily follow that the State's evidence was insufficient to sustain a conviction. As we have recognized, it is within the province of the trier of fact to resolve inconsistencies in the circumstantial evidence; and "[wlhen circumstantial evidence is susceptible of two interpretations, one supporting guilt and the other supporting innocence, the trier of fact determines which is most reasonable." Bromgard , 261 Mont. at 295, 862 P.2d at 1142. Ultimately, Lemire's brief does nothing more than ask this Court to review the facts of the case and decide that the District Court erred in its resolution of the factual issues. That is not

our role. It is well established that issues of evidentiary weight and witness credibility are exclusively within the province of the trier of fact and that, when such evidence conflicts, the trier of fact must weigh that evidence. Statev.Bower(1992), 254 Mont. 1, 8, 833 P.2d 1106, 1111. Furthermore, the trier of fact is authorized

5to makereasonable inferences based onthe circumstantial facts in

evidence. Brogan, 261 Mont. at 89, 862 P.2d at 26. The evidence presented by the State, along with the permissible inferences drawn therefrom, wassufficient to support Lemire's conviction. Theevidence included: (1) the testimony from David Morgan, VenaMorgan, andBill Lahr; (2) the observations and independent investigation madebyOfficer Kercher; and (3) several admissions madeby Lemire himself. The District Court noted that the Morgans were practically eyewitnesses to the collision, and that both watched asadistinctive orange pickup pulled away from the damagedvan only moments after the collision. Thewitnesses then saw the pickup park near Lahr's residence, and sawthe male driver emerge from the pickup and enter Lahr's home. Lahr later confirmed that such avisit hadtaken place. Officer Kercher found pieces of paint onthe bumper of Lemire's pickup that resembled the paint on the van. Lemire admitted owning the orange pickup, that he hadvisited Lahr during the time in question, and that hewas the only person whohaddriven his orange pickup on that day. Wehold that, whenviewed in the light most favorable to the prosecution, the evidence wassufficient to allow arational trier of fact to find the essential elements of the crimes charged beyond

a reasonable doubt. Accordingly, weaffirm the judgment of the District Court.

6Weconcur: