NO. 90-373 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

STATE OF MONTANA, Plaintiff and Respondent,

-vEUGENE WILBUR BOUSQUET, Defendant and Appellant.

APPEAL FROM: District Court of the Third Judicial District, In and for the County of Powell, The Honorable Mark P. Sullivan Judge presiding.

COUNSEL OF RECORD: For Appellant: C.F. Mackay; Public Defender ~roj ect Office; Anaconda, Montana For Respondent: Marc Racicot,Attorney General;Deanne L. Sandholm, Assistant Attorney General; Helena, Montana Christopher G. Miller; Powell CountyAttorney; Deer Lodae. Montana
Submitted on Briefs: February 7, 1991

ClerkJusticeWilliam E. Hunt, Sr. delivered the Opinion of the Court. Eugene W. Bousquet appeals from the unanimous verdict of a twelve-member jury sitting in the District Court of the Third Judicial District, Powell County, Montana, Judge Mark Sullivan presiding. The jury found Bousquet guilty of possession of a deadly weapon by a prisoner, a felony. We affirm. Bousquet presents the following issues: 1. Did the District Court err in denying Bousquet'smotion for a change ofvenue? 2. Was the evidence sufficient for the jury to conclude that Bousquetwasguilty of possession of adeadlyweaponby aprisoner? Eugene W. Bousquet, an inmate at Montana State Prison in Powell County, was housed in upper A4 cell in themaximum security

area of the prison. Inmates housed in A Block were allowed only minimum personal belongings, reading material, personal papers, writing materials, and hygiene items. In the early morning hours of April 3, 1989, a correctional officer noticed that an inmate, who was not Bousquet, had a Itpassingstringtt inhis possession. A Itpassingstringtt is a piece of sheet torn into strips or a collection of socks tied together used topass items from one cell to another. The officer requested the inmate to give the passing string to him. When the inmate refused, the officer warned the inmates to stop running items. When an officer went into the area, he was greeted with a general disturbance of inmates banging, yelling, and kicking doors. At this point, an officer called the shift sergeant 

### whoordered a response team into the area. When a response team went into the area, the inmates reacted with more banging and yelling and used their shampoo bottles to squirt liquid at the officers through the cracks of the cell doors. The response team decided to do a "~hakedown.~~ During a shakedown, each prisoner is asked to put his hands through the food door of his cell to be handcuffed, the prisoner is removed from his cell,and the cell is searched for weapons or contraband of any sort. Bousquet's cell was the third cell the officers "shookdown." Bousquet refused to put his hands through the slot to be handcuffed. Officers testified that they could see that Bousquet was holding a wet towel with a large knot at the end of it and a homemade knife,a llshank,ll in his right hand. Bousquet would not drop the items when requested. One of the officers called the Command Post and asked for an officer to bring mace. Bousquet, swinging the wet towel, refused to comply with several requests to drop the weapons, and the mace

was sprayed in Bousquetls face. According to correctional officers, when the mace was used, the shank dropped to the floor,

was picked up by one of the officers, and given to Captain DeYott who placed the shank in the evidence locker. No attempt to identify fingerprints on the shank wasmade, since several officers had seen Bousquet with the shank. Bousquet testified that he never possessed a shank in his cell. According to the testimony of another inmate, the inmate heard officers in Bousquet's cell saying that they "were going tofix his [Bousquetls]buttv1and saw one of the officers place a shank under Bousquetlsmattress and then pretend to find it. As a result of the incident, Bousquet was charged with possessionof adeadlyweaponby aprisoner. Bousquetls motion for change of venue was denied onAugust 24, 1989. After a three-day trial, a jury found Bousquet guilty on September 7, 1989. The District Judge sentenced Bousquet to ten years in Montana State Prison, to be served consecutively to the sentence Bousquet was already serving. Fromthe jury'sguiltyverdict,Bousquet appeals. I The first issue is whether the District Court erred in denying Bousquetlsmotion for a change of venue. Bousquet contends that the District Court should have granted his motion for a change of venue pursuant to 46-13-203, MCA, which provides in relevant part:The defendant or the prosecution may move for a change of place of trial on the ground that there exists in the county inwhich thecharge ispending suchprejudice that a fair trial cannot be had in such county. Section 46-13-203(1)

## , MCA. According to Bousquet, he could not have had a fair trial in Powell County for two reasons: (1) formation of Citizens Protective Association in Powell County, publicized in local newspapers;and (2)location of Montana State Prison in Powell County and near the town of Deer Lodge, areas of small population. Bousquet claims that the citizens of Powell County, exposed over the years to disturbances at the prison involving inmates and escaped prisoners, have become prejudiced, consciously or subconsciously,against prison inmates. Bousquetasserts that the formation of Citizens protective Association demonstrates the prejudice of Powell County residents. The standard for a showing of prejudice pursuant to 5 46-13- 203(1) is set forth in State v. Link (Mont. 1981), 640 P.2d 366,

I1[T]he rule is that an accused in entitled to a change ofvenue when it appears there are reasonable grounds to believe that the prejudice alleged actually exists and that by reason of the prejudice there 

### is a reasonable apprehension that the accused cannot receive a fair and impartial trial. Link 640 P.2d at 368, 38 St.Rep. at 985 (quotingPeoplev. Berry I(Ill. 1967), 226 N.E.2d 591, 592-93). A district court's denial of a motion for change of venue is not in error absent abuse of discretionby the district court. State ex rel. Coburnv. Bennett

(1982), 202 Mont. 20, 29, 655 P.2d 502, 506. Each motion for change of venue must be determined by the factsand circumstancesof theparticular case. Coburn, 202 Mont. at 29-30, 655 P.2d at 507. The facts of this case are similar to those in State v. Ritchson (1982), 199 Mont. 51, 647 P.2d 830. Ritchson moved for change of venue from Powell County because "during the past two years there has been an unusual number of escapes from the stateprison and because of the anxietywhichhas been created from this situationa citizens protective association

was reorganized 

# . . . .I1 Ritchson, 199 Mont. at 54, 647 P.2d at 832. Ritchson claimed that the media attention given to the citizens'group resulted in a ''poisonatmosphere inthecommunity. 

### A defendant seeking a change of venue because of adverse publicity must show (1)thenews reports were inflammatory;and (2)the news reports actually inflamed the prejudice of the community to an extent that a reasonable possibility exists that the defendant may not receive a fair trial. State v. Miller (1988), 231 Mont. 497, 504-505, 757 P.2d 1275, 1280; Ritchson, 199 Mont. at 54, 647 P.2d at 832. As in Ritchson, neither testwas met here. Bousquet has not produced the news articles to which he refers and has not alleged any prejudicial statements or publicity directed at Bousquet personally. During voir dire of the jury panel, Bousquet's counsel thoroughlyand expertly questioned potential jurorsand challenged for cause any potential jurors who had a connection with Montana State Prison or other possible prejudice. The District Court excused all those challenged for cause by defense counsel. Since no reasonable groundsexisted to support Bousquet'sclaim of actual prejudice,we hold that the District Court did not err by denying Bousquet's motion for change of venue. I1 The second issuepresentedby Bousquet is whether theevidence

was sufficient for the jury to conclude that he was guilty of possession of a deadly weapon by a prisoner beyond a reasonable doubt. Thetest for sufficiency of the evidence in a criminal case is whether the evidence,when viewed in a light most favorable to theprosecution,would allow

### any rational trier of factto find the essential elements of the crimebeyond a reasonable doubt. State

v. Kaczmarek (1990), 243 Mont. 456, 461, 795 P.2d 439, 442; State

v. Holman (1990), 241Mont. 238, 241, 786 P.2d 667, 669.In order to find Bousquet guilty of possession of a deadly weapon, the jury had to find thatall threeelementsexistedbeyond a reasonabledoubt: (1)the individual chargedwas a prisoner; (2) the individual knowinglypossessed, actually or constructively,a deadly weapon at the time shown in the information; and (3) the individual possessed theweaponwithout lawful authority. Section 45-8-318, MCA. A review of the record shows sufficient evidence for a jury to find each of the elementsbeyond a reasonabledoubt. Bousquetpoints out thatBousquet deniedhaving a shank inhis cell and that another inmate testified that the shankwas planted by correctional officers. The jury is the exclusive judge of a witness1 credibility. While a witness is presumed to speak the truth, the presumption can be overcome by any number of factors, including the demeanor of the witness while testifying, the character of the witnessrtestimony, the bias of thewitness, the extentof the witness1opportunitytoperceive theevent,and other evidence contradicting the witnessrtestimony. Section 26-1-302, MCA. We note that later testimony made questionable the other inmate's ability to observe what occurred in Bousquetlscell. Bousquet also argues that someof the incidentreportsomitted mention of the shank. Omission of mention of the shank in some of the reports does not prove that a shank was not found. Three correctional officers testified that they sawtheblade of a shank in Bousquetlshand at the time shown in the information. Testimony also established the chain of custody of the shank from the time it was picked up from the floor of Bousquetlscell.We hold that sufficient evidence supported the jury s verdict that Bousquet was guilty of possession of a deadly weapon by a prisoner beyond a reasonable doubt. Affirmed.

We Concur: 

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