No. 87-249 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsTHOMAS J. CYR, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Deer Lodge, 

The Honorable Robert J. Boyd, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

C. F. Mackay, Anaconda, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Joe R. Roberts, Asst. Atty. General, Helena 

John N. Radonich, County Attorney, Anaconda, Montana 

Submitted on Briefs: Oct. 29, 1987 

Decided: December 3, 1987 

Filed: 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from the District Court of the Third 

Judicial District or' the State of Montana, in and for the 

County of Deer Lodge, the Honorable Robert Boyd presiding. 

The appellant was charged with the crime of aggravated 

assault, a felony, in violation of S 45-5-202 (I), MCA. He 

was found guilty by a jury after a five day trial of the 

crime of felony assault. Thereafter a notice was filed 

requesting a new trial based on newly discovered evidence. 

The motion was denied by the District Court and this appeal 

followed. We affirm. 

Testimony at trial indicates that Brenda Cyr, 

appellant's wife, met two men from Butte, Montana at an 

Anaconda, Montana, bar, on June 25, 1986. One of the men, 

Mark Spolar, testified that he understood that Brenda and her 

husband were separated. During the afternoon of June 25, 

1986, Brenda, in the company of Spolar and others, frequented 

several bars in the city of Anaconda. Throughout the late 

afternoon and evening, several encounters were had with the 

appellant who was trying to get his wife to come home. In 

one of the encounters, Brenda went over to the appellant's 

car, he jerked her around, grabbed her by the throat and 

cursed her, all of which made her more reluctant to accompany 

the appellant to their home. 

After frequenting several bars most of the afternoon 

and early evening, Spolar, with several of his motorcycle 

club friends decided to return to Butte. When they went 

outside, one of them, after getting on a motorcycle and 

starting off, was pursued by the appellant in his car. This 

appeared to them to be an attempt to run them over. 

During the day when appellant went to one of the bars 

where the group was partying, and after he had confronted 
several of them, several members of the group reported 

seeking a gun on appellant, though he did not use it in a 

threatening manner. However, the several of the members were 

alerted that he was armed. This called for some discussion, 

particularly after his alleged attempt to run down the 

motorcyclists. 

At closing time, Mark Spolar, Manuel Madrid, and Brian 

Shepard, went outside the Garden Bar, where they again 

encountered the appellant, seated in his car. Manuel Madrid 

by that time had obtained a hand gun from Jean Woodbury, one 

of the women in the party, so that they would have some 

"equal protection" in case they were confronted by the 

appellant. About that time, Spolar confronted the appellant 

in his car and he attempted to get him out of his car and in 

the process kicked out at least one window. At that time the 

appellant fired his pistol, hitting Mark Spolar in the groin 

area. Several more shots were fired by the appellant, and at 

that time Manual Madrid opened fire on the appellant. One of 

the shots fired by Madrid wounded appellant's small son who 

was seated inside the appellant's car. 

An investigation followed and the appellant and Madrid 

were both charged by the authorities of Deer Lodge County. 

The appellant received a nine year sentence with four years 

suspended. Also, his sentence was enhanced by an additional 

three years, to be served consecutively with the above 

sentence, for the use of a firearm in the commission of the 

offense. 

Three issues are presented for review by this Court: 

(1) Whether there was sufficient evidence before the 

jury upon which to base their verdict. 

(2) Did the District Court err in refusing to grant 

appellant's motion to dismiss at the close of the State's 

case? 
(3) Did the District Court err in refusing to grant 

the appellant's motion for a new trial on the basis of newly 

discovered evidence? 

Concerning issue 1, sufficiency of the evidence, there 

is no dispute that the appellant shot Mark Spolar. There 

were witnesses other than Spolar to that effect, and Spolar's 

testimony is sufficient of itself to convict. Spolar ' s 

activities in kicking out the window were not sufficient, and 

were not found to be sufficient by the jury, for the 

appellant to open fire, shooting through the door of his car 

and seriously wounding Spolar. This is a question for the 

jury. The jury heard the evidence in the five-day trial and 

their verdict indicates that after listening to all witnesses 

they found the appellant guilty. 

In proving the offense of felony assault, the State had 

to prove the following elements: (1) purposely or knowingly 

cause; (2) bodily injury; (3) to another; (4) with a 

weapon. Section 45-5-202(2), MCA. 

In State v. Oliver (Mont. 19871, 742 P.2d 999, 1002, 44 

St.Rep. 1567, 1572, we stated: 

The standard for review of the 

sufficiency of the evidence 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." 

Jackson v. Virginia (1979), 443 U.S. 

307, 319, 99 S.Ct. 2781, 2787, 61 

L.Ed.2d 560, 573. 

Under this standard there was sufficient legal evidence to 

support the jury's verdict. 

The second issue is whether the court properly denied 

defendant's motion to dismiss. Here the appellant's argument 

is tied closely to the first issue where we found sufficient 

evidence to convict. As noted above, there was substantial 
credible evidence to support the charges and therefore the 

trial court correctly denied appellant's motion. 

Issue 3, did the court properly deny the motion for a 

new trial? Section 46-16-702, MCA, provides for the granting 

of a motion for new trial "in the interest of justice." 

Where the basis for the motion for new trial is 

newly-discovered evidence, the long-standing criteria for 

evaluating the motion has been set forth by this Court in 

State v. Greeno (1959), 135 Mont. 580, 342 P.2d 1052. In 

Greeno this Court established the following criteria: 

(1) That the evidence must have come to 

the knowledge of the applicant since the 

trial; (2) that it was not through want 

of diligence that it was not discovered 

earlier; (3) that it is so material 

that it would probably produce a 

different result upon another trial; 

(4) that it is not cumulative 

merely--that is, does not speak as to 

facts in relation to which there was 

evidence at the trial; (5) that the 

application must be supported by the 

affidavit of the witness whose evidence 

is alleged to have been newly 

discovered, or its absence accounted 

for; and (6) that the evidence must not 

be such as will only tend to impeach the 

character or credit of a witness. 

Greeno, 135 Mont. at 586, 342 P.2d at 1055. A11 six of the 

criteria are stated in the conjunctive, and as noted below, 

defendant fails to establish at least the first three. 

In State v. Lewis (1978), 177 Mont. 474, 483, 582 P.2d 

346, 351, this Court held that the decision to grant a new 

trial lies within the discretion of the trial judge and will 

not be disturbed on appeal unless a clear abuse of discretion 

is shown. We have also noted that motions for a new trial 

based on newly-discovered evidence are not favored because 

the defendant has already had time, prior to trial, to 

prepare his case. Greeno, supra. Two recent cases cited the 
criteria in Greeno. State v. Kutnyak (Mont. 1984) , 685 P. 2d 

901, 909, 41 St.Rep. 1277, 1287; and State v. Short (Mont. 

1985), 702 P.2d 979, 984, 42 St.Rep. 1026, 1032. In Kutnyak, 

it was only necessary to cite three of the criteria, but we 

note that all six are appropriate. 

Noting the evidence presented in light of the Greeno 

criteria, we note a bullet hole in the car that was 

previously unfound was observed by appellant's counsel during 

trial. He had ample opportunity to question the State's 

expert witnesses on firearms, but now alleges he did not 

appreciate the significance of that evidence. However, the 

vehicle had been impounded on the day of the shooting, June 

26, and was available for inspection and examination by the 

appellant during the whole period of some six months. Having 

failed to bring this forward, the evidence is not sufficient 

to set aside the verdict. 

Concerning the second criterion for evaluating 

newly-dicovered evidence, regarding whether it could have 

been discovered earlier, the appellant had considerable time 

to find this evidence. Much of the above analysis applies 

here. Having failed to bring it to the attention of the 

court such failure comes too late in this trial to set aside 

the verdict. 

A third criterion is that appellant must show that the 

presence of the evidence at trial would probably have 

produced a different result. As noted above, there was no 

other supporting evidence at trial for the contention that he 

now makes claiming Spolar had a gun at the time he approached 

the appellant's vehicle. This "new evidence" does not 

resolve a disputed point in the appellant's favor, rather it 

attempts to raise an entirely new issue which is not 

supported by any other facts in evidence. Further, this "new 

evidence" is not necessarily inconsistent with the testimony 

of the trial. Manuel Madrid apparently fired four shots at 
the appellant's vehicle and some were fired from an angle 

behind the vehicle as the appellant sped away from the scene 

of the trouble. 

The trial judge heard the appellant's argument for a 

new trial and ruled against that motion and stated the 

following: 

There certainly has not been any 

exhibition of diligence in examining the 

vehicle, because the Court notes it was 

impounded on or about the 27th of June, 

and subsequently made available to the 

witness for the State, just as it was 

readily available for any witnesses that 

the defendant wished to present. It 

does not appear that this is in fact new 

evidence, but is, at most, evidence 

which was not fully explored by the 

Defendant, and the Motion for New Trial 

is denied. 

The decision of the District Court is affirmed. 

We concur: // 

Justices 

Mr. Justice John C. Sheehy, specially concurring: 

I agree with the result based on the jury verdict.