No. 85-415 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

SERENA TONKOVICH, a/k/a 

SERENA EARLEY, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Deer Lodge, 

The Honorable Robert Boyd, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

C. F. Mackay, Anaconda, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General., Helena, Montana 

?atricia Schaeffer, Asst. Atty. General, Helena 

John N. Radonich, County Attorney, Anaconda, Montana 

Marjorie L. Thomas, Deputy County Attorney, Anaconda C 

Submitted on Briefs: Jan. 23, 1986 

Filed: APR 9 - 1986 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Serena Tonkovich appeals from her conviction of aggravated assault in the District Court for the Third Judicial 

District, Deer Lodge County. We affirm. 

The sole issue raised on appeal is whether there is 

substantial evidence to support the findings and conclusions 

of the District Court. 

This case was tried to the District Court rather than to 

a jury, and the court prepared extensive findings of fact, 

many of which are basically uncontraverted. The court found 

that Serena Tonkovich and the victim, Rita Lee, had once been 

friends, but for almost two years had not been on speaking 

terms. On the evening of this incident, both women were 

bar-hopping in Anaconda. Each of them presented testimony 

that she was trying to avoid the other that evening. At the 

time of the incident, Rita Lee had iust walked out of a bar 

and Serena Tonkovich was outside in her car. Serena shot a 

.25 caliber automatic pistol at Rita Lee, wounding her in the 

leg. 

At trial, Serena Tonkovich raised a defense of self-defense. She argues that she met her burden of proof, which 

she correctly states as raising a reasonable doubt as to her 

guilt. State v. Cooper (1979), 180 Mont. 68, 73, 589 P.2d 

133, 136. However, our function on appeal is not to determine whether she raised a reasonable doubt as to her guilt, 

but to determine the sufficiency of the evidence to support 

her conviction. The standard of review is whether, viewing 

the evidence in the light most favorable to the State, there 

is substantial evidence to support the conviction. State v. 

Lamb (Mont. 1982), 646 P.2d 516, 518, 39 St.Rep. 1021, 1024. 

Disputed questions of fact and the credibility of witnesses 
will not be considered on appeal. State v. DeGeorge (1977), 

173 Mont. 35, 38, 566 P.2d 59, 60. 

Serena Tonkovich's testimony was that she was afraid of 

Rita. Lee, that she had started her car to leave but it had 

stalled, that Rita Lee and another woman were coming toward 

her yelling obscenities, that she thought Rita had something 

in her hand, and that she attempted to warn Rita Lee away by 

shooting at the ground in front of her. She was then able to 

get her car started, and drove away. 

The testimony relied upon by the District Court included 

the following: Rita Lee testified that she went outside the 

bar to get some fresh air because she was feeling ill. She 

testified that she was alone and did not have anything in her 

hands. She heard a car engine rev and then recognized the 

car as Serena Tonkovich's. She saw Serena, who was in the 

driver's seat, point a gun at her and shoot twice. Serena 

then drove away. During this time, Serena Tonkovichls male 

friend was standing next to Serenals car, between the car and 

Rita Lee. He testified that he sa.w Rita Lee come out of the 

bar, and that he saw nothing in her hand. After he heard the 

shots, he told Serena she was stupid for firing the gun, and 

went into the bar. 

In resolving the conflicting testimony, the District 

Court concluded that: 

[tlhe facts conclusively demonstrate that 

there was no imminent threat of an attack 

by the victim, Rita Lee, or even the 

appearance of the necessity for the use 

of deadly force, or any physical peril to 

the Defendant, Serena Tonkovich . . . since no w0rd.s were spoken, no threat 

issued and the Defendant was in her 

automobile, with a friend . . . who had 

previously demonstrated his willingness 

to prevent any type of confrontation 

between the Defendant and others, including the victim, Rita Lee. 
The District Court held that Serena Tonkovich was not 

justified in using force likely to cause death or serious 

bodily harm. The record contains substantial evidence to 

support the findings of fact and conclusions of the District 

Court. We therefore affirm the judgment of the District 

Court. 

We Concur: , " 

/:' ,&-7- L: ' Q 4 Chief Justice