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 Off ice; 

Anaconda, Montana 

For Respondent: 

Marc Racicot, Attorney General ; Deanne L. Sandholm, 

Assistant Attorney General; Helena, Montana 

Christopher G. Miller; Powell County Attorney; Deer 

Lodae. Montana 

Submitted on Briefs: February 7, 1991 

Clerk 
Justice William 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's motion 

for a change of venue? 

2. Was the evidence sufficient for the jury to conclude that 

Bousquet was guilty of possession of a deadly weapon by a prisoner? 

Eugene W. Bousquet, an inmate at Montana State Prison in 

Powell County, was housed in upper A4 cell in the maximum 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 

Itpassing stringtt in his possession. A Itpassing stringtt is a piece 

of sheet torn into strips or a collection of socks tied together 

used to pass 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 who 
ordered 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 "shook down." 

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 was made, 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 to 
fix his [Bousquetls] buttv1 and saw one of the officers place a 

shank under Bousquetls mattress and then pretend to find it. 

As a result of the incident, Bousquet was charged with 

possession of a deadly weapon by a prisoner. Bousquetls motion for 

change of venue was denied on August 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. From the jury's guilty verdict, Bousquet appeals. 

I 

The first issue is whether the District Court erred in denying 

Bousquetls motion 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 in which the charge is pending such prejudice 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. Bousquet 
asserts 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 

of venue 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. 

I Link 640 P.2d at 368, 38 St.Rep. at 985 (quoting People v. Berry 

(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 

discretion by the district court. State ex rel. Coburn v. Bennett 

(1982), 202 Mont. 20, 29, 655 P.2d 502, 506. 

Each motion for change of venue must be determined by the 

facts and circumstances of the particular 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 state prison and because of the anxiety which has 

been created from this situation a 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 ''poison atmosphere in the community. 

A defendant seeking a change of venue because of adverse 

publicity must show (1) the news 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 test was 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 

thoroughly and expertly questioned potential jurors and 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 grounds existed to support Bousquet's claim of actual 

prejudice, we hold that the District Court did not err by denying 

Bousquet's motion for change of venue. 

I1 

The second issue presented by Bousquet is whether the evidence 

was sufficient for the jury to conclude that he was guilty of 

possession of a deadly weapon by a prisoner beyond a reasonable 

doubt. The test for sufficiency of the evidence in a criminal case 

is whether the evidence, when viewed in a light most favorable to 

the prosecution, would allow any rational trier of fact to find the 

essential elements of the crime beyond a reasonable doubt. State 

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

v. Holman (1990), 241 Mont. 238, 241, 786 P.2d 667, 669. 
In order to find Bousquet guilty of possession of a deadly 

weapon, the jury had to find that all three elements existed beyond 

a reasonable doubt: (1) the individual charged was a prisoner; (2) 

the individual knowingly possessed, actually or constructively, a 

deadly weapon at the time shown in the information; and (3) the 

individual possessed the weapon without lawful authority. Section 

45-8-318, MCA. A review of the record shows sufficient evidence 

for a jury to find each of the elements beyond a reasonable doubt. 

Bousquet points out that Bousquet denied having a shank in his 

cell and that another inmate testified that the shank was 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 witnessr testimony, the bias of the witness, the 

extent of the witness1 opportunity to perceive the event, and other 

evidence contradicting the witnessr testimony. Section 26-1-302, 

MCA. We note that later testimony made questionable the other 

inmate's ability to observe what occurred in Bousquetls cell. 

Bousquet also argues that some of the incident reports omitted 

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 saw the blade of a shank 

in Bousquetls hand 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 Bousquetls cell. 
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: ,4'