No. 87-249
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987

STATE OF MONTANA, Plaintiffand Respondent,-vsTHOMASJ. CYR, Defendantand Appellant.

APPEAL FROM: District Court of the Third JudicialDistrict, In and for the County of Deer Lodge, TheHonorable Robert J. Boyd, Judgepresiding.
COUNSEL OF RECORD:
ForAppellant:
C. F. Mackay, Anaconda,Montana
For Respondent:
Hon. Mike Greely,Attorney General, Helena,Montana JoeR. Roberts,Asst. Atty. General,Helena JohnN. Radonich,CountyAttorney, Anaconda,Montana

Submitted on Briefs: Oct. 29, 1987 Decided: December 3, 1987 Filed:

ClerkMr. Justice JohnConwayHarrison delivered the Opinion of the Court.

This is an appeal from the DistrictCourt 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 thathe 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 cursedher, all ofwhichmade her more reluctantto accompany the appellant to theirhome. 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 appellantwent to one of the bars where the group was partying, and after he had confrontedseveral of them, several members of the group reported seeking a gun on appellant, though he did not use it in a threateningmanner. However, the several of themembers 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 inhis car. Manuel Madrid by that time had obtained a hand gun from JeanWoodbury, 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 outat least onewindow. At that time the appellant fired his pistol, hitting Mark Spolar in the groin
area. Severalmore shotswere firedby the appellant,and at that time ManualMadrid opened fire on the appellant. One of the shots fired by Madrid wounded appellant's small sonwho
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 sentencewith four years suspended. Also, his sentencewas 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 juryuponwhich to base theirverdict. (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
werewitnesses 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 theirverdict indicates that after listening to all witnesses they found the appellantguilty. Inproving the offense of felony assault, the Statehad toprove 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 Statev. 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 crimebeyond a reasonabledoubt." 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 issuewherewe found sufficient evidence to convict. As noted above, there was substantialcredible evidence to support the charges and therefore the trial court correctly denied appellant'smotion. 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 evidencemusthave come to the knowledge of the applicant since the trial; (2) that itwas not throughwant 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 evidencemustnot be such aswill only tend to impeach the characteror creditof awitness. 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 firstthree. In State v. Lewis (1978), 177Mont. 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 notbe disturbed on appealunless a clearabuseofdiscretion 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 thecriteria in Greeno. State v. Kutnyak (Mont. 1984)

## , 685 P.2d 901, 909, 41 St.Rep. 1277, 1287; and State v. Short (Mont. 1985), 702P.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 unfoundwas observedby appellant'scounselduring 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 appellantduring the whole period of some sixmonths. Having failed to bring this forward,the evidence is not sufficient to setaside theverdict. Concerning the second criterion for evaluating newly-dicovered evidence, regarding whether it could have been discovered earlier, the appellanthad 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 theverdict. A third criterion is that appellantmust show that the presence of the evidence at trial would probably have produced a different result. As noted above, there was no other supportingevidence at trial for the contention thathe
nowmakes claiming Spolarhad a gun at the timehe 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 supportedby any other facts in evidence. Further, this "new evidence" is not necessarily inconsistentwith the testimony of the trial. Manuel Madrid apparently fired four shots atthe 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 exhibitionofdiligence 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 anywitnesses that the defendant wished to present. It does not appear that this is in factnew evidence, but is, at most, evidence which was not fully explored by the Defendant, and the Motion for New Trial isdenied.
The decision of the District Court is affirmed.

We concur: //

Justices
Mr. Justice JohnC. Sheehy, specially concurring:

I agreewith the resultbased on the juryverdict.