NO. 91-411 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Powell, 

The Honorable Ted L. Mizner, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael T. Birthmark, Pro se, Deer Lodge, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Jennifer M. 

Anders, Assistant Attorney General, Helena, Montana 

Christopher G. Miller, County Attorney, Deer Lodge, 

Montana 

Filed: 

Submitted on Briefs: May 28, 1992 

Decided: July 2, 1992 

i 

' Clerk 
Justice Karla M. Gray delivered the Opinion of the Court. 

The defendant, Michael T. Birthmark (Birthmark), appeals his 

conviction of possession of a deadly weapon while in prison, 

pursuant to § 45-8-318, MCA, following a jury trial in the Third 

Judicial District Court, Powell County. We affirm. 

As a preliminary matter, we note that after the notice of 

appeal was filed in this case, Birthmark's trial counsel filed with 

the District Court a motion to withdraw as counsel on the basis of 

lack of meritorious appealable issues. Counsel ' s motion was 

accompanied by a Memorandum which referred to possible arguments in 

support of the appeal. The District Court granted the motion. 

While the District Court was not the appropriate forum for a motion 

to withdraw at that stage of the proceedings, we issued an Order 

upon receipt of the District Court's order granting the motion 

stating that the Memorandum submitted would be considered an 

"Anders" brief. Anders v. California (l967), 386 U.S. 738, 87 

S.Ct. 1396, 18 L.Ed.2d 493. We provided Birthmark with an 

opportunity to respond to his counsel's brief. 

Following that response, we examined the record, as required 

by Anders, and concluded that counsel's evaluation of the case was 

sound; therefore, we granted counsel leave to withdraw and allowed 

Birthmark to proceed pro se with his appeal. The State responded 

to the "Andersn brief and Birthmark's supplement thereto. 

We consider the following issues raised by Birthmark: 

1. Did the District Court commit reversible error in 
admitting certain testimony? 

2. Is there sufficient evidence in the record to support the 

defendant's conviction? 

3. Is Birthmark entitled to further representation? 

This action stems from an incident in the Montana State Prison 

in which Officer Neil Lehto discovered a potentially dangerous 

weapon in Birthmark's cell in "A" block, the maximum security unit 

of the prison. Lehto found an altered eyeglass arm-piece tucked 

away in a roll of toilet paper underneath Birthmark's sink. The 

arm-piece appeared to have been straightened and sharpened. 

On September 27, 1990, an information was filed charging 

Birthmark with the offense of possession of a deadly weapon by a 

prisoner in violation of 5 45-8-318, MCA. A jury trial was held at 

which Birthmark was represented by court-appointed counsel 

The jury found Birthmark guilty on April 18, 1991. The court 

sentenced him to five years' imprisonment with an additional twoyear sentence as a result of the court's finding that Birthmark was 

a persistent felony offender. Birthmark appealed. 

I. 

Did the District Court commit reversible error in admitting 

certain testimony? 

Birthmark contends that the District Court erred in admitting 

certain testimony by Officer Lehto. The State responds that any 

error in admission of the testimony was harmless. 

Birthmark contends that Officer Lehto's testimony that the 

arm-piece had been sharpened was inadmissible. Defense counsel 

made a general objection to this testimony; no specific grounds 

3 
were given. Following the objection, counsel was allowed to voir 

dire the witness. When the voir dire became cross-examination and 

not voir dire, the District Court ended the voir dire. 

We note that defense counsel's objection to this testimony was 

inadequate; no specific basis for the objection was made. I1[A]n 

objection, to be good, must point out the specific ground of the 

objection. . . ." State v. Walker (1966), 148 Mont. 216, 223, 419 

P.2d 300, 304; Rule 103, M.R.Evid. We conclude that defense 

counsel's general objection was insufficient to preserve the error 

for appeal. 

In addition, Birthmark objected to Officer Lehto's testimony 

concerning the purpose for treating the arm-piece as evidence, 

tagging it and taking steps to preserve it. Defense counsel 

objected that the question called for a legal conclusion which the 

witness was not qualified to make. The court overruled counsel's 

objection and Officer Lehto responded: 

We send it up to the prison base for them to make a 

determination on this as a dangerous weapon. 

Lehto testified that tagging the evidence preserves the matter for 

future prosecution. 

The record reveals that Officer Lehto's testimony concerning 

these procedures was descriptive only. The question did not call 

for a legal conclusion, nor did Lehto's response constitute such a 

conclusion. We conclude, therefore, that the admission of Officer 

Lehtols testimony concerning the processing of evidence was not 

error. 

Lehto also was allowed to testify, over objection that the 

4 
testimony was speculative, that the arm-piece had been sharpened 

and that: 

A: The only conceivable reason that this [altered 

eyeglass arm-piece] would be in an inmate's cell, in my 

opinion, is to be used as a shank. It was either given 

to Mr. Birthmark to keep for somebody, or it was made 

into this position to trade for other contraband -- 

Birthmark is correct that Lehto's testimony concerning the 

sharpness of the arm-piece and its possible uses called for 

speculation. Therefore, admission of this testimony was error. 

The judge, however, had the testimony stricken from the record and 

admonished the jury to disregard it. Striking erroneously admitted 

evidence and admonishing the jury to disregard it serves to cure 

the error. State v. Smith (1986), 220 Mont. 364, 715 P.2d 1301. 

Birthmark further objected, on relevancy grounds, to Lehto's 

testimony that specific items were not permitted in "A" block. 

This testimony was irrelevant and its admission was error. We must 

decide, therefore, whether the error was prejudicial and affected 

the substantial rights of the party, or whether the error is 

harmless. Section 46-20-701, MCA. The test for prejudicial error 

is whether there is a reasonable possibility that the evidence 

might have contributed to the conviction. Brodniak v. State 

(1989), 239 Mont. 110, 779 P.2d 71. 

Lehto's testimony was a mere recitation of prison policy which 

added nothing to the case. It was not related to the controlling 

facts of the case and did not cast Birthmark, or any action or 

activity by him, in a negative light. We conclude that no 

reasonable possibility exists that this improperly admitted 
evidence contributed to the jury's verdict. Accordingly, we hold 

that any error on the part of the District Court in admitting 

Officer Lehtols testimony was harmless error. 

Is there sufficient evidence in the record to support the 

defendant's conviction? 

Birthmark claims that he is innocent of the charge of 

possession of a deadly weapon in prison. The State contends that 

there is sufficient evidence on the record to support the 

conviction. 

The standard of review for sufficiency of the evidence in 

criminal cases is whether "evidence, when viewed in a light most 

favorable to the prosecution, would allow a rational trier of fact 

to find essential elements of the crime beyond a reasonable doubt." 

State v. Beach (1991), 247 Mont. 147, 805 P.2d 564. Birthmark was 

convicted under 1 45-8-318, MCA, which provides: 

Every prisoner committed to the Montana state prison . . . who, while at the state prison . . . purposely or 

knowingly possesses or carries upon his person or has 

under his custody or control without lawful authority a 

dirk, dagger, pistol, revolver, slingshot, sword cane, 

billy, knuckles made of any metal or hard substance, 

knife, razor not including a safety razor, or other 

deadly weapon is guilty of a felony. 

The evidence is undisputed that Birthmark was an inmate at the 

Montana State Prison and that he possessed the altered eyeglass 

arm-piece. The only elements of the offense at issue, therefore, 

are whether the arm-piece was: 1.) a deadly weapon 2.) knowingly 

or purposely possessed by Birthmark. 

The jury was instructed on the basis of 45-2-101(71), MCA, 
that a weapon is "any instrument, article, or substance which, 

regardless of its primary function, is readily capable of being 

used to produce death or serious bodily injury.1t The jury had the 

altered arm-piece before it. In addition, Lehto testified that the 

arm-piece had been classified as a deadly weapon by prison 

authorities. We conclude that sufficient evidence was presented 

upon which the jury could properly determine beyond a reasonable 

doubt that the arm-piece was a deadly weapon. 

We must also determine if Birthmark 11knowingly8t possessed a 

deadly weapon. "When knowledge of the existence of a particular 

fact is an element of an offense, such knowledge is established if 

a person is aware of a high probability of its existence." Section 

45-2-101 (33) , MCA. Here, knowledge that the altered arm-piece 

could have been construed as a deadly weapon is needed to satisfy 

the statute. Testimony was offered that prisoners in "A" block 

were allowed nothing that had been altered. Birthmark testified 

not only that he altered the arm-piece, but that after doing so, 

the arm-piece was sharper. We conclude that there is evidence on 

the record that Birthmark was aware of a high probability that the 

altered arm-piece could be construed as a deadly weapon. 

We hold that there was sufficient evidence for the jury to 

find the elements of the crime beyond a reasonable doubt and, 

therefore, to support defendant's conviction. 

111. 

Is Birthmark entitled to further representation? 

Birthmark requests this Court appoint new counsel to handle 
his appeal. We decline to do so. The requirements of Anders are 

met by the orders issued and procedures utilized by this Court in 

the present case. Having determined that no meritorious issues 

exist on appeal, we hold that Birthmark is not entitled to further 

representation. 

Affirmed. 

We concur: A 

ces 
July 2, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

Michael T. Birthmark 

700 Conley Lake Road 

Deer Lodge, MT 59722 

Hon. Marc Racicot 

Attorney General 

Justice Bldg. 

Helena, MT 59620 

Christopher Miller 

County Attorney 

Powell County Courthouse 

Deer Lodge, MT 59722 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: 

Depu