DA 07-0398

IN THE SUPREME COURT OF THE STATE OF MONTANA

2008 MT 330

STATE OF MONTANA,

 Plaintiff and Appellee,

 v.

JEANNIE M. TUOMALA,

 Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District,

In and For the County of Hill, Cause No. DC 06-082

Honorable David G. Rice, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

James B. Wheelis, Chief Appellate Defender, Helena, Montana

Cathleen O. Sohlberg, Office of Public Defender, Missoula, Montana

For Appellee:

Hon. Mike McGrath, Attorney General; C. Mark Fowler, Assistant Attorney 

General, Helena, Montana

Cyndee L. Peterson, Hill County Attorney; Gina Bishop, Deputy County 

Attorney, Havre, Montana

Submitted on Briefs: August 6, 2008

 Decided: September 23, 2008 

Filed:

__________________________________________

Clerk

Justice Brian Morris delivered the Opinion of the Court.

September 23 2008
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¶1 Jeannie Tuomala (Tuomala) appeals her conviction in the Twelfth Judicial District, 

Hill County, for Partner or Family Member Assault in violation of § 45-5-206, MCA, and 

Resisting Arrest in violation of § 45-7-301, MCA. We affirm.

¶2 We review the following issues on appeal:

¶3 Did the District Court properly deny Tuomala’s motion to dismiss the count of 

Partner or Family Member Assault on the basis of insufficient evidence?

¶4 Did the District Court properly deny Tuomala’s motion to dismiss the count of 

Resisting Arrest on the basis of insufficient evidence?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 Janice Wemmer called 911 on June 7, 2006. Wemmer reported that she was watching 

a woman beating up a man in front of the Town Pump in Havre, Montana. Officers Aaron 

Wittmer, Jason Barkus, and Dan Waldron responded to the call. Wemmer directed the 

officers to the street east of the Town Pump. The officers located three people, later 

identified as Randolph Morsette, Brent Azure, and Jeannie Tuomala. Brent Azure and 

Jeannie Tuomala are in a relationship and share a child together. 

¶6 The officers discovered Tuomala pinning Azure up against the wall. The officers 

separated Tuomala and Azure. Officer Wittmer spoke with witnesses Janice Wemmer and 

Stephanie Graves, while Officer Barkus interviewed Tuomala. Officer Wittmer also 

interviewed Morsette and Azure. Officer Waldron interviewed Matt Pourier, an employee of 

the Subway across the street. Based upon the information produced by the witnesses and 

their own observations, the officers arrested Tuomala for partner assault. 
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¶7 Tuomala refused to cooperate with the officers during the arrest. She first slipped one 

handcuff off her hand. The officers had to unlock the handcuffs in an attempt to place them 

properly. Tuomala struggled with the officers when they attempted to replace the handcuffs. 

She pulled away, disobeyed their orders, and went limp. She fell to her knees. Tuomala also 

refused to walk after the officers had secured the handcuffs. As a result, the officers had to 

carry her to the patrol car.

¶8 The State charged Tuomala with Partner or Family Member Assault in violation of 

§ 45-5-206, MCA, and Resisting Arrest in violation of § 45-7-301, MCA. Janice Wemmer 

testified that she was driving by Pizza Hut with her daughter, Stephanie Graves, when she 

saw Tuomala and Azure arguing. She pulled over to observe. Wemmer testified that 

Tuomala hit Azure six or seven times. Wemmer further testified that Azure had crossed the 

street, followed by Tuomala, who continued to try to hit him. Stephanie Graves also testified 

that she had seen Azure trying to get away from Tuomala, and had watched Tuomala hit him.

¶9 Randolph Morsette testified that he had been gambling with Tuomala and Azure that 

evening. Morsette claimed that the couple had argued over ten dollars that Morsette had 

given Azure. Tuomala started fighting with Azure in the bingo hall. Morsette followed the 

couple outside where he saw Tuomala hitting Azure in the head. Morsette testified that 

Azure crossed the street several times to get away from Tuomala, but that Tuomala jerked 

Azure by the coat and hit him in the head. 

¶10 Officer Wittmer testified that Tuomala had Azure up against the wall when he arrived 

at the scene. Officer Wittmer testified that he noticed injuries around the left side of Azure’s 
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neck while interviewing him. Officer Wittmer stated that Azure told him about the source of 

the injuries, and that he took photographs of Azure’s injuries. Officer Wittmer described the 

injuries for the jury, and testified that, based on his experience, he believed the injuries to be 

“fresh.” Officer Wittmer further testified regarding Tuomala’s conduct after he arrested her 

for partner assault. 

¶11 Officer Barkus also testified at trial. He saw Tuomala pinning Azure against the wall 

by holding his hand up and pushing against his chest and shoulder. Officer Barkus testified 

that Tuomala told him that she and Azure had been gambling and that she was angry that 

Azure would not give her some money. Officer Barkus also testified that Tuomala managed 

to remove one of the handcuffs during her arrest. Officer Barkus described how Tuomala 

went down to her knees and resisted the officers’ efforts to again place her in handcuffs.

¶12 Tuomala moved for a directed verdict of acquittal on both charges at the close of the 

State’s case. Tuomala argued that the State had failed to present sufficient evidence that 

Azure had sustained “bodily injury.” Tuomala also argued that the State had failed to 

present sufficient evidence that she had used physical force or created a risk of physical 

injury to a peace officer. The District Court denied Tuomala’s motion. The jury convicted 

Tuomala of both charges.

STANDARD OF REVIEW

¶13 This matter came before the trial court on Tuomala’s “motion for a directed verdict,” 

now correctly designated a “motion to dismiss for insufficient evidence.” State v. Rosling, 

2008 MT 62, ¶ 21 n. 2, 342 Mont. 1, ¶ 21 n. 2, 180 P.3d 1102, ¶ 21 n. 2. We review de novo 
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a district court’s denial of a motion to dismiss for insufficient evidence. Rosling, ¶ 33. 

Dismissal for insufficient evidence is appropriate only if, viewing the evidence in the light 

most favorable to the prosecution, there is not sufficient evidence upon which a rational trier 

of fact could find the essential elements of the crime beyond a reasonable doubt. Section 46-

16-403, MCA; Rosling, ¶ 35.

DISCUSSION

ISSUE ONE

¶14 Did the District Court properly deny Tuomala’s motion to dismiss the count of 

Partner or Family Member Assault on the basis of insufficient evidence?

¶15 Section 45-5-206(1)(a), MCA, provides that a person commits the offense of partner 

or family member assault if the person purposely or knowingly “causes bodily injury to a 

partner or family member.” “‘Bodily injury’ means physical pain, illness, or an impairment 

of physical condition and includes mental illness or impairment.” Section 45-2-101(5), 

MCA.

¶16 Tuomala contends that the State failed to demonstrate that Azure suffered bodily 

injury in the form of pain or impairment of physical condition. She further alleges that the 

State’s evidence presented consisted of contradictory eye witness statements. 

¶17 Tuomala argues that the failure of Montana law to define “impairment of a physical 

condition,” as used in the definition of “bodily injury,” requires this Court to look beyond the 

plain meaning of the text. In the absence of any Montana definition, Tuomala suggests that 

the court adopt the legal definition of “impairment” used by the court in State v. Higgins, 998 
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P.2d 222 (Or. App. 2000). The Oregon court determined that the phrase “impairment of 

physical condition” meant “harm to the body that results in a reduction in one’s ability to use 

the body or a bodily organ for less than a protracted period of time.” Higgins, 998 P.2d at 

224. 

¶18 When we interpret a statute, our objective is to implement the objectives the 

legislature sought to achieve. Western Energy Co. v. State, Dept. of Rev., 1999 MT 289, 

¶ 11, 297 Mont. 55, ¶ 11, 990 P.2d 767, ¶ 11. If we can determine the intent of the 

legislature from the plain meaning of the words used in the statute, the plain meaning 

controls and the Court need go no further and need not apply any other means of 

interpretation. Western, ¶ 11. 

¶19 The broad definition of bodily injury does not require us to go outside the statute to 

determine its meaning. Bodily injury encompasses physical pain or impairment of physical 

condition. Section 45-2-101(5), MCA. Multiple witnesses testified that they saw Tuomala 

strike Azure. Officer Wittmer testified that he observed scratches and other injuries on 

Azure’s face and neck. The State introduced photographic evidence of the injuries through 

Officer Wittmer. Both police officers testified that they saw Tuomala pinning Azure up 

against the wall. 

¶20 Tuomala notes that Azure did not testify that he suffered physical pain. Azure’s 

testimony is not necessary. Section 26-1-501, MCA, permits the trier of fact to make such 

inferences based on the evidence provided. State v. Heffner, 1998 MT 181, ¶ 30, 290 Mont. 

114, ¶ 30, 964 P.2d 736, ¶ 30. A person may be convicted on circumstantial evidence alone. 
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Rosling, ¶ 36. Viewing this evidence in a light most favorable to the State, sufficient 

evidence existed upon which a rational trier of fact could find that Tuomala’s actions caused 

Azure to suffer physical pain or impairment. Section 46-16-403, MCA; Rosling, ¶ 35. We 

conclude that the District Court properly denied Tuomala’s motion to dismiss the charge of 

Partner or Family Member Assault based on insufficient evidence. 

ISSUE TWO

¶21 Did the District Court properly deny Tuomala’s motion to dismiss the count of 

Resisting Arrest on the basis of insufficient evidence?

¶22 Section 45-7-301(1), MCA, provides that a person commits the offense of resisting 

arrest if he knowingly prevents or attempts to prevent a peace officer from effecting an arrest

by: (a) using or threatening to use physical force or violence against the peace officer or 

another; or (b) using any means which creates a risk of causing physical injury to the peace

officer or another. Tuomala argues that the officers did not testify as to how her actions 

placed them at risk of injury. She further asserts that the State failed to present any evidence 

of a risk of physical injury to the officers. 

¶23 Both arresting officers testified that Tuomala managed to slip one handcuff from her 

wrist. Officer Wittmer testified that the officers were forced to unlock her handcuffs in an 

attempt to replace them. Officer Wittmer testified that Tuomala pulled away when they 

unlocked the handcuffs, resisted, and then went limp and fell to the ground. Officer Barkus 

testified that Tuomala went down to her knees when they attempted to replace the handcuffs. 

Officer Wittmer further testified that the officers had to carry Tuomala to the patrol car. 
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¶24 In State v. Carter, 285 Mont. 449, 454, 948 P.2d 1173, 1175 (1997), after 

administering field sobriety tests, police officers asked the defendant to come to the station 

for more testing. The defendant refused and stated that he was going to get in his car and 

drive home. The police officers were forced to physically struggle with the defendant to 

keep him from driving off. Carter, 285 Mont. at 454, 948 P.2d at 1176. We agreed with the 

State’s argument that “once an officer has to engage in a physical struggle with an arrestee in 

order to prevent him from driving away, a risk that the officer or another might be physically 

injured is created.” Carter, 285 Mont. at 457, 948 P.2d at 1177. 

¶25 Evidence presented at trial indicated that Tuomala’s actions forced the officers to 

engage in a physical struggle with her in order to replace her handcuffs. The record also 

indicates that Tuomala’s behavior forced the officers to carry her to the patrol car. 

Considering the evidence in the light most favorable to the State, a rational trier of fact could 

have found that Tuomala resisted arrest by creating a risk of physical injury to the officers.

Section 46-16-403, MCA; Rosling, ¶ 35. We conclude that the District Court properly 

denied Tuomala’s motion to dismiss the charge of resisting arrest based on insufficient 

evidence. 

¶26 Affirmed.

/S/ BRIAN MORRIS

We Concur:

/S/ KARLA M. GRAY

/S/ JAMES C. NELSON
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/S/ W. WILLIAM LEAPHART

/S/ PATRICIA COTTER