DA 10 - 0416 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 11 MT 89 STATE OF MONTANA, Plaintiff and Appellant, v. JOHN SHANNON FINLEY, Defendant and Appellee.
APPEAL FROM: District Court o f the First Judicial District,

In and For the County of Lewis & Clark, Cause No. CDC 2010
- 23 Honorable Kathy Seeley, Presiding Judge COUNSEL OF RECORD:

For Appellant: Steve Bullock, Montana Attorney General; John Paulson, Assistant Attorney General, H elena, Montana Leo J. Gallagher, Lewis and Clark County Attorney, Mary Cochenour, Deputy County Attorney, Helena, Montana For Appellee : Joslyn Hunt, Chief Appellate Defender; Matthew Wilcox, Assistant Appellate Defender, Helena, Montana
Submitt ed on Briefs: March 29, 2011 Decided: April 26, 2011 Filed:

__________________________________________ Clerk April 26 20112

Chief Justice Mike McGrath delivered the Opinion of the Court. ¶1 The State of Montana appeals an order of the District Court, First Judicial District, Lewis and Clark County, reversing John Finley’s( Finley) c onviction for partner o r fa mily me mber assault, enteredinaJustice Courtof record . We rev erse and remand for further proceedings. ISSUES ¶2 On appeal, the State raises the issue of whether the evidence presented to establish reasonable apprehension of bodily injury was sufficient to support Finley ’ s conviction for partner or family member assault. ¶3 Finley raises the issue of whether the State’s appeal is precluded by law. BACKGROUND ¶4 At 1:41 a.m. , on April 4, 2009, Debbie Finley made a 911 call to the Lewis and Clark County dispatch center. She p laced the call from her cellular telephone after she fled her house by sneaking out of the back door. Breathlessand audibly crying, D ebbi e told the dispatcher that her husband, Finley, had come home drunk and was trashing the place. She c laimedthat Finley blamed her for the recent arrest of their older

s on . She expressed fear for her ten
- year - old son and mother, who were still asleep at the residence. The dispatcher asked i f Finley had hurt anyone. Debbie resp onded, “He’s trying to hurt me. . . . He’s telling me he’s going to crush my fucking head in, and stuff like that.” She told the dispatcher that she was cold ,because she had fle d without shoesand waswearing3

only a tee - shirt and pajama pants. ¶5 Initially, Debbi e r an to aM ontana Lil’s Casino, d own the streetf rom her house. At one pointduring the 911 call , she became ag itatedw hen she thoug

ht she saw Finley walking towards the c asino
. The dispatcher convinced Debbie to pr oceed to the nearby Town Pump andwait for the police. Once there, Debbie informed the dispatcher that she had positioned herself away from the windows and refused tol ook outside
. Ultimately, the dispatcher managed to coax D ebbie to look outside andc onfirm that the police had arrived. During the eight
- minute 911 call, D ebbie repeatedly asked where the officers were and how soon they would reach her
. ¶6 Reserve Officer Phil Richards, of the East Helena Police Department , was the first to arrive at the Town Pump . He encountered Debbie as she exitedthe building . She was shaking, hesitant to speak and exhibited redness around the eyes. D ebbie informed Ri chards that she and her husband had a disagreement. Rich ards later testified that he was surprised that Debbie lacked shoes and was clad in only pajamas
. ¶7 Nextto arriv

e wasLewis and Clark County Sheriff’s Deputy Eric Gilbertson . He testified that Debbie was emotionally upset, shaking and nervous. Gilbertson confirmed that Debbie was underdressedfor the weather and estimated the temperature was between 20 and 30 degrees. ¶8 Third to arrive was Lewis and Clark County Sheriff’s Deputy Matt Reighard. He too observed that Debbie wasunderdressed, nervous, afraid, and emotionally distressed. Debbie told Reighardthat she probably would not be alive had she not left the house4

when she did. She further expressed fear that Finley

h ad pursued he r after she fled. Additionally, she repeated the story she told to the 911 d ispatcher and again expressed concernfor her son and mother. ¶9 Reighard accompanied Debbie back to the residence. She remained in his patrol vehicle w

hile he checked the house for Finley
. During his sweep o f the premises , Reighard visually confirmed that the damag e was consistent with Debbie’s story. Af ter fa iling to locate Finley , Reighard returned to his vehicle. There, Debbie informed him she might have just seen Finley
. Out of fear of remaining at her house, Debbie accompanied Reighard as he searc hed the n eighborhood
. The search prov ed unsuccessful. ¶10 Reighard and Debbie returned to her residence , where Debbie provided a written statementof

the nig ht’s ev ents . Reighard took photographs of the damag

ed closet, and the broken floor h eater. He also photographedblood on the wall , whichDebbie claimed was the result of Finley punching so mething
. Additionally, Reighard found and photographed footprints in the fresh snow outside of the back door , heading towards the Town Pump. The footprints were too l arge to belong to Debbie and were made by someone wearing shoes
. The deputy t hen left the residence and continued t o search for Finley . Out of fear of remaining at home that nig ht, Debbie called a friend to come get her , her son and her mother. Ultimate ly, the officers were unable to locate Finley , and the case was referredto the Lewis and Clark County Attorney ’s O ffice
. ¶11 Finley

w as charged with partner o r f amily me mber assault, second offense. A5

bench trial was held on October 29, 2009. D ebbie, Reighard, Gilbertson and Richards were all called as witnesses. ¶12 At trial, Debbie testified that many of her statements on April 4, 2009 , w ere lies
. She admitted calling 911, but claimed she fabricated the story so the police would remove Finley

f rom her house . W

hen asked why she would do this, Debbie responded that she disliked when Finley was drunk , because her father had been an alcoholic . She acknowledged that Finley yelledat her and blamed her

for the trouble with their older son but denied he used viol ence or threats . She assertedthat the door a ndheater had been in disrepair prior to April 4, and the blood was from a previous incident
. She testified that she took advantage of these pre
- existing conditions to strengthen her story to the police
. ¶13 Furth ermore, Debbi e claimed she had nev er said that Finley

w anted to crush her head. Alternatively, she asserted that if she had said so mething to that effect, it had been a lie . She claimed that she rarely wore shoes, and she had made avoluntary decisiont o leave her house wearing only pajamas . W hen the prosecutor

a sked Debbie about all of the inconsistent statements, Debbie responded that she would rather lie to the police than lie in court. ¶14 Finley

w as found guilty of partner or fa mily me mber assault. The L ewis and Clark County

J ustice Courto f recordf

ound Debbie’s testimony to be unbelievable. I t further found her to be a less than credible witness because her assertions were contradicted by all of the physical evidence and the 911 recording. Pursuan t to § 46 - 17 - 311(1), MCA, F inley

appealed to the District Court of Lewis and Clark County . H e6

arg uedthat the State had presented insufficient evidence, andthe prosecutor had engaged in misconduct
. ¶15 On August 11, 2010, the District Court reversed the Just ice Court. As provided in § 3 - 10 - 115(1), MCA, the District Court did not conduct a new trial, but rather confined its review to the record and questions of law. It concluded the evidence was insufficient to support Finley’sc onviction. The District Court explained that Debbie was the only witnessc apable of establishing the e lement of r easonable apprehension of bodily injury
. The District Courtthenreasonedthat the State had failed to establish Debbie’s reasonable apprehension of bodily injury because her testimony “ was found by the trier of fact to be inherently incredible. ” Because the District Court reversed the conviction based upon ev identiary insufficiency, it did not address Finley’s allegation of prosecutorial misconduct. ¶16 On A

ugust 31 ,2 010, the State filed notice of appeal to this Court. I

n response, Finley filed a motion to dismiss , arg uing the State’s appeal was unauthorized. O n January 4, 2011 this Court denied Finley’s motion to dismiss and allowed the S tate’s appeal to proceed. STANDARD S OF REVIEW ¶17 When a district court acts in an appellate capacity, we review to determine whether the district court reached the correct conclusions under the appropriate standards of review. Stanley v. Lemire , 2006 MT 304, ¶ 26, 334 Mont. 489, 148 P.3d 643
. ¶18 We review an appeal concerning ev identiary sufficiency to determine whether,7

when viewing the evidence in the light most fa vorable to the prosecution, a rational finder of fact could have found the required elements of the offense beyond a reasonable dou bt. State v. Gunderson , 2010 MT 166, ¶ 58, 357 Mont . 142, 237 P.3d 74. ¶19 Our review of constitutional questions is plenary. State v. Brooks , 2010 MT 226 , ¶ 11, 358 Mont. 51, 243 P.3d 405
. DISCUSSION ¶20 Whether the State’s appeal is precluded
. ¶21 As a thresholdmatter, we address Finley’s contentiont hat the S tate ’s appeal i s barred
. Generally , the State may not appeal in criminal cases. S ection 46 - 20 - 103(1) , MCA . H owever, there are exceptionsto this rule , including when alower c ourt’s order or judgment sub stantively results in the dismissal of a case , or modifies or chang es a verdict . Section 46
-20 - 103 (2) , MCA . W e conclude that the State’s appeal is authorized
. ¶22 First, Supreme Court precedent permits the State’s appeal, without offending the Double Jeopardy Clause of the United States Constitution. In a bench trial, jeopardy attaches “when the judge begins to receive evidence.” U.S. v. Martin Linen Supply Co. , 430 U.S. 564 , 569, 97 S. Ct. 1349 , 1354 (1977); accord State v. Barron , 2008 MT 69 , ¶ 14, 342 Mont. 100 , 1 79 P.3d 519 . W hen a go vernmental appeal does not threaten a defendant with successive prosecutions, the Double Jeopardy Clause is not offended. United States v. Difrancesco , 449 U.S. 117 ,132,101 S. Ct. 426 , 435 (1980)
. In Smith v. Massachuse tts , 543 U.S. 462 , 125 S. Ct. 1129 (2005), the Supreme Court explained : Our cases hav

e made a sin gle exception to the principle that acquittal by8

judge precludes reexamination of guilt no less than acquittal by jury: When a jury returns a verdict of guilty and a trial judge (or an appellate court) sets aside that v

erdict and enters a judgment of acquittal, the Double Jeopardy Clause does not preclude a p rosecution appeal to reinstate the jury verdict of guilty. Smith , 543 U.S. at4 67, 125 S. Ct. at1 134. Such an appeal is permitted , because a defendant only faces restoration of a previously
- enteredg uilty verdict, not a new trial
. Martin Linen Supply Co. , 430 U.S. at 569, 97 S. Ct. at 1354. Article II, Section 25 of the Montana C onstitution provides , in pertinent part, “[n] o person shall be again put in jeopardy for the same offense previously tried in any jurisdiction .” Although this has been constr

ued to provide gre ater protectiona gainst double jeopardy than its federal counter part, State v. Guillaume , 199 9 MT 29 , ¶ 16, 293 Mont. 224, 975 P.2d 312 , nothing in the case at hand compels departure from federal guidance
. The State seeks to reinstate a guil ty verdicts et aside by the D istrict Court, acting in an appellate capacity. This appealfits squarely

within the exception recognized in Smith
. ¶23 Second ,Finley’s cite to Burks v. United States , 437 U.S. 1, 98 S. Ct. 2141 (1978) , potentially undermineshis arg ument . The questionin Burks was “whether a defendant ma y be tried

a second time when a reviewing court has determined that in a prior trial the ev idence was insufficient to sustain the verdict of guilty. ” Burks , 437 U.S. at 5, 98 S. Ct. at 2144 (emphasis added)
. The Supreme Court explained why remand for a new trial was im permi ssible : By deciding that the Government had failed to come forward with sufficient proof of petitioner ’ s capacity to be responsible for criminal acts, that court was cle arly saying that Burks ’ criminal culpability had not been9

established. If the District Court had so held in the first instance, as the rev iewing court said it should have done, a ju dgment of acquittal would have been entered and, of course, petitioner could not be retried for the same offense. Burks , 437 U.S. at 10 - 11, 98 S. Ct. at 2147 (emphasis added). Despite Finley’s attempt to analogize th islang

uag e to the case at hand, the Burks Court explained that itsopinion did not address the government’s abil ity to appeal from the intermediate appellate court: The United States has not cross - petitioned for certiorari on the question of whether the Court of Appeals was correct in holding that the Government had failed to meet its burden of proof with respect t o the claim of insanity. Accordingly, that issue is not open for review here. Burks , 437 U.S. at 5, 98 S. Ct. at 2144. N ot only does this language f oreclose Finley’s reliance on Burks , but it suggeststhat the BurksCourt would have entertained the merit s , had the government appealed
. Thus, if Burks a dds anything to thisc ase, it implicitly supports the State’s ability to appeal
. ¶24 Finally, State v. Cool , 174 Mont. 99, 568 P.2d 567 (1977), and State v. Greenwalt, 204 Mont . 1 96, 663 P.2d 1178 (1983), do not apply
. Those cases concerned th e S tate’s ability to appeal from atrial court , after anacquittal for insufficient evidence
. Cool , 174 Mont. at 10 0 , 568 P.2d at 56 7 ; Greenwalt, 204 M ont. at 20 1 - 0 2, 663 P.2d at 118 0 - 81 . D ouble jeopardy precludes appella te r eview of the trial courtin such cases , because the State ’s appeal essentially attempts to re - try the defendant
. Greenwalt , 204 Mont. at 202, 663 P.2d at 118 1 . Here, the State’s appeal does not subject Finley to retrial
. Finley h as already been found guilty at his original trial
. On appeal he faces only potential reinstatement of the p reviously
- entered guilty verdict. The Double Jeopardy concerns10

present in Greenwalt

and Cool , are absenthere. ¶25 We conclude that t he State is not precluded from appe llate review whena district court , acting as an intermediate appellate court, sets aside a guilty verdict entered by a justice court of record
. Should the State prevail, the tangible effect is reinstatement of the trier of fact’s gu ilty verdict. S uch circumstances do not subject defendant s to impermissible retrial , further prosecutiono r double punishment for the same offense
. Moreover , such an appeal comports with this Court’s power and obligation to provide final appellate review of district court dec isions when the district court has functioned as an intermediate appellate court. State v. Seaman , 2005 MT 307, ¶ 10, 3 29 Mont. 429, 124 P.3d 1137. ¶26 W hether theS

tate’s e vidence of reasonable apprehension of bodily injury was sufficient to support Finley’s conviction for partner or family member assault. ¶27 The State argues that the District Court proceeded under a mistaken belief that only Debbie’s testimony coulde stablishthe element of r easonable apprehension of bodily injury. The State further asserts th at thism istake l ed to a flawed review b y the District Court . We agree. ¶28 Our proper scope of rev iew in this case is whether the ev idence presented in the Justice Court, when vie wed in the light most fa vorable to the prosecution, could have allowed any rati onal trier of fact to have found the essential elements of the crime beyond a reasonable doubt. Seaman , ¶ 10; Gunderson , ¶ 58. Appellate review by a district court is no broader than this Court’s review of a lower court judgment. Stanley , ¶ 26 . When11

ac ting in an appellate capacity, the District Court cannot make findings of fact, but rather must confine review to the record and questions of law. State v. Fender , 2007 MT 268, ¶ 4, n. 1, 339 Mont. 395, 170 P.3d 971. Accordingly, to assess adistrict court’sappellate conclusions , we m

ustconduct an independent review of the trial court’s record under the appropriate standard of review. Seaman , ¶ 10; Stanley , ¶ 26. ¶29 A person commits the offense of partner or fami ly me mber assault if the person

“ purposely

or knowingly causes reasonable apprehension of bodily injury in a partner or fa mily member .” S ection 45 - 5 - 206(1)(c), MCA. The standard is objective, asking whether ar easonable person under similar circumstance swould have reasonably apprehended bodily injury. State v. Vukasin , 2003 MT 230, ¶ 19, 317 Mont. 204, 75 P.3d 1284. The State need not establish fear of bodily injury, but rather must produce ev idence that a reasonable person would have r ealizedthat bodily injury could r esult
. State v. McMahon , 2003 MT 363, ¶ 2 2, 3 19 Mont . 77, 81 P.3d 508. F urthermore, the elements of a criminal offense do not require direct evidence and can be established by circumstantial evidence alone. Vukasin , ¶ 20. ¶30 Our review of Finley’s trial reveals that the evidence presented by the prosecution c ould have alloweda rational trier of fact to conclude that the “reasonabl e apprehension of bodily injury” element was satisfiedb eyond a reasonable doubt . The 911 recording was introduced as evidence in the Justice Court tri al. Itcaptured more than just words. It clearly demonstratedDebbie’s outright fear that Finley was go ing to harm her. She told the dispatcher that Finley had threatened to crush her head. Furthermore, she was scared12

enough to flee her home , into a co ld night withf reshsnow on the g

round, wearing only pajamas and socks. N ot only did Debbie repeatedly express concern that Finley h ad followed her, but her fear was gr eate nough that the dispatcher had to coax her out of hiding, once inside of the Town P um p . Additionally, the Justice Court heard from three police officers who testifiedto Debbie’s distraught appearance . She told Reighard that if she had not left her house, she would probably be dead
. Furthermore , Reighard confirmed the damage to the house and blood on the wall. These observations corroborated the story Debbie told on the 911 re c ording . D ebbie’s reluctance to remain in her house withoutp olice presence c ulminated in her d ecision to remove her entire fa mily from the home that night. F inally, the Justice Court heard Debbie’s trial testimony, which tended to conflict with almost all of the other evidence in the record. ¶31 As the trier of fact, the Justice Court had the a bility to observe the witnesses and determine credibility. State v. Pin kerton , 270 Mont. 287, 293, 891 P.2d 532, 536 (1995). The Justice Court was free to evaluate Debbie’s credibility on the witness stand separate from her statements made to the 911 operator and the investigating officers, shortly following the described ev ents. Moreover, Debbie’s earlier statements were corroborated by the 911 recording, and the officers’ testimony. Based upon this record, the trier of fact could have found the required elements of partner or fa mily me mber assault beyond a reasonable doub t. ¶32 Finley’s cite to State v. White Water , 194 Mont . 8 5, 634 P.2d 636 ( 1981) , i s inapplicable to this case. In White Water , this Court stated, “a conviction supported only13

by a prior inconsistent statement should not be allowed to stand.” White Water , 195 Mont. at 8 9 , 634 P.2d at639. Finley’s conviction was supported by far more: Debbie’s 911 call, the physical evidence, the testimony of three police officers, as well asDebbie’s prior inconsistent statements. ¶33 We conclude that the District Court erredw hen it reversed the gu ilty verdict entered by the Justice Court. However, the District Court made no ruling with regard to Finley’s claim of prosecutorial misconduct. Accordingly, we reverse the judgment of the District Courtand remand for resolution of the prosecutorial misconduct issue.

/S/ MIKE McGRATH We concur: /S/ BRIAN MORRIS /S/ PATRICIA COTTER /S/ BETH BAKER /S/ JIM RICE