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: DistrictCourtof the ThirdJudicial District, Inand for the Countyof DeerLodge, The Honorable RobertBoyd, Judge presiding.
COUNSEL OF RECORD:
For Appellant: C. F. Mackay, Anaconda, Montana
For Respondent: Hon. Mike Greely, AttorneyGeneral., Helena, Montana ?atricia Schaeffer, Asst. Atty. General, Helena John N. Radonich, CountyAttorney, Anaconda, Montana MarjorieL. Thomas, DeputyCountyAttorney, Anaconda C

Submittedon Briefs: Jan. 23, 1986

Filed: 

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## 1986Mr. 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 DistrictCourt. This casewas 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 thevictim,Rita Lee,had oncebeen 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 shewas trying to avoid the other that evening. At the time of the incident, Rita Lee had iust walked out of a bar and Serena Tonkovichwas 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 lightmost favorable to the State, there is substantial evidence to support the conviction. Statev. 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), 

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

### Serena Tonkovich's testimony was that shewas 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 frontofher. Shewas 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 shewas 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 Tonkovichlsmale friendwas standingnext to Serenalscar,between the car and Rita Lee. He testified that he sa.wRita Lee come out of the bar, and thathe sawnothing in her hand. After he heard the shots, he told Serena she was stupid for firing the gun, and went into thebar. In resolving the conflicting testimony, the District Court concluded that: [tlhefacts conclusively demonstrate that therewas no imminent threat of an attack by the victim, Rita Lee, or even the appearance of the necessity for the use ofdeadly force, or anyphysical 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 thevictim,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.

WeConcur:

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