No. 84-41 INTHE SUPREME COURT OF THE STATE OF MONTANA 1984

STATE OF MONTANA, Plaintiff and Respondent,

-vsGEORGE GREEN, Defendant and Appellant.

APPEAL FROM: DistrictCourt of the Fourteenth Judicial District, In and for theCounty of Musselshell, The Honorable Roy Rodeghiero, Judge presiding.

COUNSEL OF RECORD:

For Appellant: George Green, pro se, Roundup, Montana

For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana John L. Pratt, County Attorney, Roundup, Montana

Filed: Submitted On Briefs: July 19, 1984 Decided: August 15, 1984



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ClerkMr. Justice John C. Sheehy delivered the Opinion. of the Court. George Green appeals from his conviction of misdemeanor assault in the District Court, Fourteenth Judicial District, Musselshell County. Green had earlier been charged in the Justice Court in Roundup Township, of misdemeanor assault under section 45-5-201(1)(c),MCA, ofpurposely and knowingly making physical contact in an insulting and provoking manner against twelve-year-old Michael Fawcett, grabbing him by the arms, setting him down, and attempting to hypnotize him. He

was convicted in Justice Court, and sentenced to ten days in jail and fined $500. He appealed to the District Court, where, after trial by the court, a jury having been waived, defendant was again found guilty of misdemeanor assault and sentenced by the District Court to five days in jail and a fine of $500. It is from the latter judgment that Green appeals. Mike Fawcett testified thaton June 17, 1983,he went to the city park in Roundup for baseball practice. When he first arrived,he saw sitting in the bleachers, an associate of the defendant, Mary Okey Green, conducting a session with Fawcettqsyoung teammate, Jason Djernes. Afterward Jason told Mike that the session was "weird," that he went to Switzerland, Norway, and other exotic places like Hawaii. Mike testified that when ba-seballpractice was finished, he walked toward his home and in so doing, passed close to George Green. Mike testified that Green grabbed him by the arms, and sat him down, and at this time, he was terrified. Green said, "Look atme, I can help youwith your pitching." Then Green started counting, "One, deeper, deeper, deeper, deeper,two, floatdeeper, deeper, deeper,deeper," 

### - et ceterathrough the numbers. Mike testified thatwhile it was going

on he feltscared. Inthemeantime, Susan Hewett, whose nephew had attended the baseball practice, learned from another young boy that

someone was inthe park hypnotizing people. She went tothe city park, and in looking around, heard the voice of Green doing his routine on the other side of the trees. She attempted togo therebutwas interceptedby Mary Okey Green, who kept asking her whether she wished to engage in meditation. On the stand, Mary Okey Green admitted that she purposely intercepted Susan Hewett to keep her away from George Green while he was conducting his session with Mike. Atany rate, Susan Hewett refused tobe intercepted, made her way toGreen and shouted what was he doing. He told her to be quiet. Atthispoint Mike got up and ran from the scene. He testified that he was scared ashe ran away. Mike also testified that Green grabbed for him as he started to run away and triedtokeep him there. Indefense, Green and Mary Okey Green denied thatatany point Green had touched Mike orgrabbed forhim inconducting the session. Green's defense was thathe teaches meditation and that meditation is a method of having the subconscious mind overcome the conscious mind, the latter of which Green characterizes as the "devil." He maintains that he had reached level 17incountingwithMike, which Green statesis the levelof peace, and attrial, therecord indicateshe was disturbed, ifnot angry, atSusan Hewettforinterruptingthe proceedings. Green conducted his appeal without benefit of counsel. For that reason, we have examined the transcript of the record carefully, and the brief filed by Green. He raisestwo issues on appeal, whether there was sufficient evidence to justifyhis conviction ofmisdemeanor assault,andwhether the DistrictCourt could properly order him to cease teaching meditation in public parks in the light of the First Amendment. Our powers of appellate review are the sa.mewhether or not a defendant appealing from a criminal conviction is represented by counsel on the appeal. It may generally be stated that the Supreme Court does not try facts on appea.1, but determines whether a miscarriage of justice has been shown. State v. Stod.dard. (1966), 147 Mont. 402, 412 P.2d 827. Disputed questions of fact and credibilitywill not be disturbed on appeal-. State v. Crockett (1966), 148 Mont. 402, 421 P.2d 722. The credibility of witnesses and the weight to be assigned to their testimony is for the determination of District Court in a nonjury trial. See Matter of Jones (1978), 176 Mont. 412, 578 P.2d 1150. Disputed questions of factwill not be considered on appeal, State 

### v. Messerl-y (1-952) 

## , 126 Mont. 62, 244 P.2d 1054, and all conflicts are resolved on appeal. in favor of the judgment. State v. Cor (1964), 144 Mont. 323, 396 P.2d 86. If there is substantial evidence pointing to the judgment, that 

### is, such relevant evidence as a. reasonable mind might a.cceptas adequate to supporta conclusion,viewed in a light most favorable to the State, a convictionmust be sustained. Statev. Wilson (Mont. 1981), 631P.2d 1273, 38 St.Rep. 1040. Under those appellate decisions, we find the testimony of Mike Fawcett is the kind of substantial evidence upon which this verdict must be sustained. The second issue raised by Green is that the court limited his First A-mendment right of free expression inordering him not to engage voung people in meditation sessions without the consent orpresence of their parents or guardians. In admonishing the defendant after passing judgment of guilt, the District Court told the defendant: "Your intentions originallymay have been good,and maybe they have been good all along. But you have placed yourself in such a position, dealing with these young children without their guardian or parent around, you are taking the child's upbringing inyour ownhandswithout any permission or any say soby the parent or theirguardian. And I don't know what they do in Denver or down that way, hut around_ here that's a no no. Do you understand that? "MR. GREEN: Iunderstand." There is no need for us to pass on the propriety of the admonition although it seems to have been common senseadvice to the defendant. The a.ppea1here is from the judgment of conviction. The sentence which was levied against the defendantwas thathe serve five days in the county jail,and pay a fine of $500. He is not prevented under the sentence from any expression allowed him under the First Amendment. Affirmed.

We Concur: