No. 91-611 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

5 *, STATE OF MONTANA, ? t! Plaintiff and Respondent, -vs- 

## JUL2 1992 DAVID FOREST BOWER, CLERKOFS::::,RS:,!;: C:ltJtii STATEGF MONTANA Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Douglas G. Harkin, Judgepresiding.

COUNSEL OF RECORD: For Appellant: John E. Smith and Marcia M. Jacobson, Public Defender's Office, Missoula, Montana For Respondent: Hon. Marc Racicot, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena, Montana Robert L. Deschamps, 111, County Attorney, Robert Zimmerman,DeputyCountyAttorney, Missoula,Montana

Filed: Submitted on Briefs: May 7, 1992 Decided: July 2, 1992

ClerkJustice Karla M. Gray delivered the Opinion of the Court.

The defendant,

### avid Forest Bower, appeals his conviction of aggravated assault following

### a nonjury trial in the District Court of the Fourth Judicial District,Missoula County. We affirm. The issues on appeal are: 1. Did the District Court commit reversible error when it admitted evidence concerning the defendant's character during the State's case-in-chief? 2. Is there sufficient evidence in the record to support the defendant's conviction of aggravated assault? On the evening of July 20, 1990, the defendant went to Connie's Lounge in Missoula,Montana where he encountered his exgirlfriend, Holly Torgerson, and her boyfriend, Mark Moore. Torgerson is the mother of the defendant's son. Moore testified that on three occasions thedefendant approached him and Torgerson and loudly made remarks maligning Torgerson's reputation. After the third occasion he approached the defendant to ask him to stop the verbal harassment. Moore testified that, before he could say anything to the defendant, the defendant struck him in the head with a bar glass. The blow and resulting struggle left several lacerations on Moore's forehead and right cheek. Bar employees separated thedefendantandMoore and moved them outside the bar. Missoula police officers arrived and transported Moore to thehospital. Moore testified thathewas at thehospital for three or four hours during which timehe received 57 sutures to close his facial lacerations. 2Tracy Reinke was in Connie's Lounge during the time of the altercation between the defendant and Moore. She testified that she heard an argument start as the defendant walked up to Moore. She stated that later in the evening shewas standing next to and talking with the defendant when he threw a punch at Moore "[alnd the next thing I knew he [Moore]got sliced." The defendant testified that Moore and Torgerson were attempting to fightwithhim because of a continuing custody battle over his son and a pending assault charge which he made against Torgerson. He claimed that while he was in the bar he tried to avoid Moore and Torgerson as much as possible and that he was concerned forhis safety. He testified that whenMoore approached, he thought it was to fight sohe "reached out and stopped him1# and told him to stay away. Moore thenhit him in the lip and head. He then defended himself, strikingMoore. The defendant claimed that he was unaware that he had a bar glass in his hand when he struck Moore because he was concentrating on defending himself. Reinke testified inrebuttalto thedefendant's testimony that approximatelyonemonth after the incidentat Connie's Lounge,the defendant approached her on the street and inquired if she was going to testify at trial. She claimed thatwhen she told him that shewas going to testify,he advised her not to say anything. She testified that the defendant threatened her by stating, "1 know where your kids go to school and where you live." Moore testified that in August or September 1990 he was driving down a Missoula street when he saw the defendant standingat the street corner. He claimed that the defendant threatened to hit him again with a glass. Darla Veltkamp,whowasalso present at Connie's Lounge on the night of the altercation, told the investigating police officer thatMoore threw the firstpunch. She testified at trial,however, that she did not see the altercation at all and had lied to the officer because she was intimidated by the defendant, who was standing nearby when she gave her original statement. She testified that,before the altercation, the defendant had offered to give her ten dollars and buy her a drink if she would "punch out" Torgerson. Veltkamp further testified that the defendant approached her at a later time and told her to tell authorities that he did not throw the first punch so he could "get off the charges.I' The defendant denied that he threatened Moore in August or September 1990. He testified that Moore drove up to him on the street and said, "You ain't going to get away with threatening me any more." He claimed that he did not knowwhat Moore's statement meant because he had not said a word to the defendant since their altercation. The defendant also claimed that it was Veltkamp who offered to "punch out" Torgerson for ten dollars and a drink and that he rejected her offer. The defendant was charged by an amended information with aggravated assault in violation of 45-5-202, MCA. A nonjury trial was held on April 1, 1991. At the conclusion of the State's case-in-chief,theDistrict Courtdenied thedefendant's motion fora directed verdict of acquittal. The court took the matter under advisement at the conclusion of the trial and thereafter,onApril 5, 1991, found the defendant guilty of aggravated assault. The defendant was sentenced to fifteenyears in prison and designated a dangerous offender for purposes ofparole. This appeal followed. I. Did the District Court commit reversible error when it admitted evidence concerning the defendant's character during the State's case-in-chief? During the direct examination of Joe Marshall, who was bartending at Connie's Lounge on the night of the altercation, the prosecutor inquired of the victim Moore's reputation in the community for violence or nonviolence. He then asked the same question about the defendant's reputation. Over objection, Marshall was permitted to answer, "I've known him [thedefendant] to be in one or two scuffles before." The defendant asserts that the District Court's admission of evidence concerninghis reputationor character during the State's case-in-chief was reversible error. He argues that under Rule 404(a)(l), M.R.Evid., the prosection can offer character evidence only in rebuttal to an accused's offer of character evidence, citing State v. Gommenginger (1990), 242 Mont. 265, 790 P.2d 455. He claims that he did not present such character evidence. The State concedes that the District Court's admission of the evidencewas error. Itargues, however, that the response elicited from Marshall was not prejudicial to the defendant and, thus, thecourt's error was harmless. An error by the trial court will be deemed harmless llunless the record shows that the error was prejudicial." Section 46-20- 701(1)

## ,MCA. "The test of prejudicial error requiring reversal is whether there is a reasonablepossibility the inadmissible evidence might have contributed to theverdict." Brodniakv. State (1989), 239 Mont. 110, 114, 779 P.2d 71, 73 (citations omitted). When assessing the prejudicial effect of an error, we examine the totality of the circumstances in which the error occurred. Brodniak, 239 Mont. at 115, 779 P.2d at 74. In addition, when the

error involves inadmissible evidence, we will not evaluate the evidence in isolation; to do so would risk magnifying the prejudicial effect of the error beyond its actual impact on the verdict. Brodniak, 239 Mont. at 115, 779 P.2d at 74. After a careful review of the record, we are not convinced that Marshall's testimony was prejudicial to the defendant. The limited reference to one or two prior scuffles did not indicate that the defendant had a propensity or reputation for violence. Marshall did not statewhether theprior scuffles were in or out of the barroom setting. Nor did he indicate whether the defendant instigated those scuffles. Given the substantial, if not overwhelming, evidence in the record supporting the defendant's conviction, we conclude that there is no reasonable possibility that Marshall's testimony contributed to the defendant's conviction. Accordingly,we hold that the error on thepart of the District Court in admitting the testimony was harmless.11. Is there sufficient evidence in the record to support the defendant's conviction of aggravated assault? The defendant contends that the District Court erred when it denied his motion for a directed verdict of acquittal at the conclusion of the State's case-in-chief and when it found him guilty at the conclusion of trial. He argues that the evidence presented was not sufficient to establish that he committed the offense of aggravated assault. The standard of review of the sufficiency of the evidence is whether, after reviewing the evidence in a lightmost favorableto the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State

v. Riley (Mont. 1992), 

### -P.2d 

### , 49 St.Rep. 408. This standard of review is the same whether reviewing the trial court's refusal togrant thedefendant's motion for a directedverdict of acquittal

or the verdict of guilty. See State

### v. Downing (1989), 240 Mont. 215, 783 P.2d 412: Statev. Miller (1988), 231Mont. 497, 757 P.2d 1275. We note that in Statev. Cope (1991), 250Mont. 387, 819 P.2d 1280, we adopted a "clearly erroneous" standard of review for judge-made findings of fact in criminal cases. cpDe involved our review of a district court's findings of fact relating to evidence presented at a suppressionhearing aswell as evidencepresented at

a bench trial with respect to the substantive elements of the criminal offense. We applied the "clearly erroneous" standard tothe court's findings in both situations, stating that "[wle see no

reasontomaintain a different standard of review in criminal cases thanwe apply in civil cases, as long aswe continue to requirethe State to prove the substantive elements of the criminal offense beyond a reasonable doubt at trial on themerits." Cope, 250Mont.

Subsequentto

### D, we further developedtheclearly erroneous standard of review by adopting a three-part test to be applied in reviewing judge-made findings of fact: First, the Court will review the record to see if the findingsare supported by substantialevidence. Second, if the findings are supported by substantial evidencewe will determine if the trial courthasmisapprehended the effect of evidence. [Citations omitted.] Third, if substantial evidence exists and the effect of the evidencehas not beenmisapprehended the Courtmay still find that lTIA] finding is 'clearly erroneous1 when, althoughthere is evidenceto support it,a reviewof the record leaves the court with the definite and firm conviction that amistake has been committed." [Citation omitted.] InterstateProd. creditAss'nv. DeSaye (1991),250Mont. 320, 323, 820 P.2d 1285, 1287. In light of the impropriety of applying the second and third prongs of the DeSaye test to findings of fact regarding a defendant's guilt in a criminal case,we conclude that it is necessary to overrule that portion of which holds that the "clearly erroneous" standard is to be applied to judge-made findings of fact on the substantive elements of the criminal offense. Where sufficiency of the evidence or elements of the offense issues arepresented on appeal, our standard of review, as stated above, will be whether, after reviewing the evidence in a light most favorable to theprosecution, any rational trierof factcould have found the essential elements of the crime beyond a reasonabledoubt. We will continue touse the "clearly erroneous" standard of review for judge-made findings of fact on other issues in criminal proceedings pursuant to

# m. The defendant first argues that because no testifying witness actually sawwho threw the first punch, "itwas impossible for the State to prove assault beyond a reasonable doubt in the face of Defendant's claim of self defense." We disagree. Moore testified that when he approached the defendant to ask him to stop theverbal harassment, the defendant struckhim in the head with the bar glass. He denied that he threw the first punch and alleged that the defendant had instigated the physical altercation. Although it isunclear fromthe recordwhetherReinke witnessed the altercation from its beginning, shedid testify that shewas standing next to and talking with the defendant when "the next thing [she] knew [Moore] got sliced." The fact that the defendant's testimonyconflictedwith thatof theState'switnesses does not, by itself, render the evidence insufficient to support his conviction. Theweight of the evidence and the credibility of the witnesses are exclusively within the province of the trier of fact; when the evidence conflicts, the trier of fact determines which shallprevail. Statev. Whitcher (1991), 248Mont. 183, 188, 810 P.2d 751, 754. In State v. Lozeau (1982), 200 Mont. 261, 650 P.2d 789, this Court rejected a similar argument that the evidence was insufficient because there were no eyewitnesses who saw thedefendant stab the victim. We concluded that the defendant's argument that his convictionwas based on speculation, conjecture

or probability was without merit, stating: Section 26-1-501, MCA, permits the [trier of fact] to make such inferences based on the facts proved. "The

[trier of fact] is not bound to blindly accept defendant's version of the facts. It is freetopick and choose the evidence it wishes to believe." State v. Sorenson (1980),Mont., 619 P.2d 1185, 1194, 37 St.Rep. 1834, 1845. Lozeau, 200 Mont. at 265, 650 P.2d at 791 Similarly, in Statev. Reiner (1978), 179 Mont. 239, 254, 587 P.2d 950, 959, we held that "[tlhe mere fact that defendant testified to a self-defense claim does not entitle him to an acquittal." We stated that where the evidence on a self-defense claim is conflicting, it is the function of the trier of fact to weigh the testimony and decide whether thedefendant actedwith the belief that theuse of forcewas necessary and, if so,whether such belief was reasonable. Reiner, 179 Mont. at 254, 587 P.2d at 958- 59. Here, the District Court, as the trier of fact, weighed the evidence, assessed the credibility of thewitnesses and found that the State's version of the incident was more credible than the defendant's. Such a finding is supported by the evidence. Given the testimony of the State's witnesses regarding the incident and the defendant's subsequent threats related to the incident, the District Court reasonablycould inferthat thedefendant instigated the physical altercation and was not acting in self-defense. Thedefendantnext argues that theevidencewasnot sufficientto establish aggravated assault because the State did not prove beyond a reasonable doubt that he possessed the necessary mental state for the offense. A person commits the offense of aggravated assault if thatpersonpurposely or knowinglycauses seriousbodily injuryto anotherperson. Section 45-5-202 (I),MCA. Thedefendant maintains that in order for the District Court to find that he possessed the necessary mental state for aggravated assault, the State had to prove that he intended to cause cuts to Moore's face with the bar glass. The defendant's argument is misplaced. In order topossess the necessary mental state for aggravated assault, the defendant must have acted purposely or knowingly. "Purposely" is defined in 

### 5 45-2-101(58), MCA, which provides in part:[A]person acts purposely with respect to a result or to conduct describedby a statutedefining an offense if it is his conscious obiect to enqaqe in that conduct or to cause that result. [Emphasisadded.] "Knowingly" is defined in 9 45-2-101(33), MCA, which provides in part: [A] person acts knowingly with respect to conduct or to a circumstancedescribedby a statute defininganoffense when he is aware of his conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when he is aware that it ishiahlv orobable that such result will be caused bv his conduct. [Emphasis added.] The record contains substantial evidence from which the District Court could infer that the defendant acted both purposely and knowingly. In addition to the testimony of the State's witnesses, the defendant admitted that he voluntarily andintentionally struckMoore. The court,asthe trierof fact, chose not to believe the defendant's testimony that he struck Moore in self-defense. Even if the defendant did not intend to cut Moore, it cannot reasonably be argued that he was not aware of the high probability that striking Moore in the face with the bar glass would cause facial lacerations. Finally, the defendant argues that the evidence was not sufficientto establish that Moore suffered serious bodily injury. "Seriousbodily injury" is defined as "bodily injurywhich creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of the function or process of any bodilymember or organ." Section 45-2-101(59), MCA. Whether Moore's injury created a substantial risk of death is not at issue in this case. The defendant argues that, because the State did not present expert medical testimony, it was impossible for the District Court to find beyond a reasonable doubt that Moore

### 's injurywas a seriouspermanent disfigurement. We disagree. We previously have stated that a nonexpert witness is competent to testify as to his or her past or present condition. Cain v. Stevenson (1985), 218 Mont. 101, 105, 706 P.2d 128, 131. Further, expert medical testimony is not necessary to prove the permanency of an injury where the permanency is undisputed and apparent from the nature of the injury itself. 

# u, 218 Mont. at 105, 706 P.2d at 131. In our view, it is clear thatMoore suffered seriouspermanent disfigurement. "The term 'disfigurement' connotes, among otherthings, deformity, defacement, marring and/or damage to one's attractiveness." Statev. ~oodwin (1984), 208 Mont. 522, 529, 679 P.2d 231, 235. Moore testified to the extensive scarring on his face and that his scarswere permanent. He also testified that at the time of trial, over eight months after the altercation,hewas still experiencing numbness in his right cheek where one of the lacerations occurred. Moore's testimony was uncontroverted at trial. The State's failure to present expert medical testimony was not fatal to establishing serious bodily injury under the circumstances of this case. The District Court, based upon the nature of Moore's injury and his uncontroverted testimony, could find without the aid of expert medical testimony that Moore suffered serious bodily injury. We hold that, based on the evidence presented at trial, any rational trier of fact could have found the defendant guilty of the offense of aggravated assault beyond a reasonable doubt. Affirmed.

We concur:July2, 1992 CERTIFICATEOFSERVICE Ihereby certify that thefollowingorderwassentbyUnitedStatesmail,prepaid, to the following named:

JohnE.Smith Public Defender's Office 317WoodySt. Missoula,MT 59802 Hon.MarcRacicot,AttorneyGeneral CreggW. Coughlin,Assistant Justice Bldg. Helena,MT 59620 RobertL.Deschamps, 111,County Attorney Robert Zimmerman,Deputy Missoula County Courthouse Missoula.MT 59802 EDSMITH CLERKOF

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