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, 

CLERK OF S::::,RS:,!;: C:ltJtii 

STATE GF 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, Judge presiding. 

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, Deputy County Attorney, Missoula, Montana 

Filed: 

Submitted on Briefs: May 7, 1992 

Decided: July 2, 1992 

Clerk 
Justice 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 the defendant 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 the defendant and Moore and moved them 

outside the bar. Missoula police officers arrived and transported 

Moore to the hospital. Moore testified that he was at the hospital 

for three or four hours during which time he received 57 sutures to 

close his facial lacerations. 

2 
Tracy 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 she was 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 fight with him 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 for his safety. He testified that when Moore approached, 

he thought it was to fight so he "reached out and stopped him1# and 

told him to stay away. Moore then hit him in the lip and head. He 

then defended himself, striking Moore. 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 in rebuttal to the defendant's testimony that 

approximately one month after the incident at Connie's Lounge, the 

defendant approached her on the street and inquired if she was 

going to testify at trial. She claimed that when she told him that 

she was 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 standing 
at the street corner. He claimed that the defendant threatened to 

hit him again with a glass. 

Darla Veltkamp, who was also present at Connie's Lounge on the 

night of the altercation, told the investigating police officer 

that Moore threw the first punch. 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 know what 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, the District Court denied the defendant's motion for 
a directed verdict of acquittal. The court took the matter under 

advisement at the conclusion of the trial and thereafter, on April 

5, 1991, found the defendant guilty of aggravated assault. The 

defendant was sentenced to fifteen years in prison and designated 

a dangerous offender for purposes of parole. 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 [the defendant] 

to be in one or two scuffles before." 

The defendant asserts that the District Court's admission of 

evidence concerning his reputation or 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 

evidence was error. It argues, however, that the response elicited 

from Marshall was not prejudicial to the defendant and, thus, the 
court'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 reasonable possibility the inadmissible evidence 

might have contributed to the verdict." Brodniak v. 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 state whether the prior 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 the part 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 light most favorable to 

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 

to grant the defendant's motion for a directed verdict of acquittal 

or the verdict of guilty. See State v. Downing (1989), 240 Mont. 

215, 783 P.2d 412: State v. Miller (1988), 231Mont. 497, 757 P.2d 

1275. 

We note that in State v. Cope (1991), 250 Mont. 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 suppression hearing as well as evidence presented at 

a bench trial with respect to the substantive elements of the 

criminal offense. We applied the "clearly erroneous" standard to 
the court's findings in both situations, stating that "[wle see no 

reason to maintain a different standard of review in criminal cases 

than we apply in civil cases, as long as we continue to require the 

State to prove the substantive elements of the criminal offense 

beyond a reasonable doubt at trial on the merits." Cope, 250 Mont. 

Subsequent to D, we further developed the clearly 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 

findings are supported by substantial evidence. Second, 

if the findings are supported by substantial evidence we 

will determine if the trial court has misapprehended the 

effect of evidence. [Citations omitted.] Third, if 

substantial evidence exists and the effect of the 

evidence has not been misapprehended the Court may still 

find that lTIA] finding is 'clearly erroneous1 when, 

although there is evidence to support it, a review of the 

record leaves the court with the definite and firm 

conviction that a mistake has been committed." [Citation 

omitted. ] 

Interstate Prod. credit Ass'n v. DeSaye (1991), 250 Mont. 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 are presented on appeal, our standard of review, as 

stated above, will be whether, after reviewing the evidence in a 

light most favorable to the prosecution, any rational trier of fact 
could have found the essential elements of the crime beyond a 

reasonable doubt. We will continue to use 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 saw who threw the first punch, "it was 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 the verbal harassment, the defendant struck him 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 is unclear from the record whether Reinke 

witnessed the altercation from its beginning, she did testify that 

she was standing next to and talking with the defendant when "the 

next thing [she] knew [Moore] got sliced." The fact that the 

defendant's testimony conflicted with that of the State's witnesses 

does not, by itself, render the evidence insufficient to support 

his conviction. The weight 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 shall prevail. State v. Whitcher (1991), 248 Mont. 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 the 
defendant stab the victim. We concluded that the defendant's 

argument that his conviction was 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 free to pick 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 State v. 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 the defendant acted with the 

belief that the use of force was 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 the witnesses 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 reasonably could infer that the defendant instigated 

the physical altercation and was not acting in self-defense. 

The defendant next argues that the evidence was not sufficient 
to 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 that person purposely or knowingly causes serious bodily 

injury to another person. Section 45-5-202 (I), MCA. The defendant 

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 to possess 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 described by a statute defining an offense if it 

is his conscious obiect to enqaqe in that conduct or to 

cause that result. [Emphasis added.] 

"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 circumstance described by a statute defining an offense 

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 is hiahlv 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 and 
intentionally struck Moore. The court, as the trier of 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 

sufficient to establish that Moore suffered serious bodily injury. 

"Serious bodily injury" is defined as "bodily injury which creates 

a substantial risk of death or which causes serious permanent 

disfigurement or protracted loss or impairment of the function or 

process of any bodily member 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 injury was a serious permanent 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 that Moore suffered serious permanent 

disfigurement. "The term 'disfigurement' connotes, among other 
things, deformity, defacement, marring and/or damage to one's 

attractiveness." State v. ~oodwin (1984), 208 Mont. 522, 529, 679 

P.2d 231, 235. Moore testified to the extensive scarring on his 

face and that his scars were permanent. He also testified that at 

the time of trial, over eight months after the altercation, he was 

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: 

July 2, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

John E. Smith 

Public Defender's Office 

317 Woody St. 

Missoula, MT 59802 

Hon. Marc Racicot, Attorney General 

Cregg W. Coughlin, Assistant 

Justice Bldg. 

Helena, MT 59620 

Robert L. Deschamps, 111, County Attorney 

Robert Zimmerman, Deputy 

Missoula County Courthouse 

Missoula. MT 59802 

ED SMITH 

CLERK OF THE SUPREME COURT 

BY: