The opinion
No. 88-595
IN THE SUPREME COURT OF THE STATE OF MONTANA
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STATE OF MONTANA,
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Plaintiff and Respondent,
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WARREN DEAN BROWN, -
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Defendant and Appellant. ;o a
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APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Gordon Bennett, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Randi Hood, Public Defender, Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
George Schunk, Asst. Atty. General, Helena
Mike McGrath, County Attorney; Carolyn A. Clemens,
Deputy County Atty., Helena, Montana
Submitted on Briefs: Sept. 21, 1989
Decided: October 24, 1989
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Filed:
Justice R. C. McDonough delivered the Opinion of the Court.
This is an appeal from a conviction of felony assault.
Defendant appeals a judgment of the First Judicial District
of the State of Montana, Lewis and Clark County, contending
that the evidence presented to the jury is insufficient to
sustain the jury's verdict finding him guilty of felony
assault. We affirm the the trial court's judgment.
On March 7, 1988, Kathy Brown, the wife of defendant
Warren Brown, had asked the defendant to watch their two
children---Amber, age 3, and Crystal, age I--- for the day.
The couple had been separated for approximately one month.
Kathy was scheduled to return for the children around
5:00 p.m. but did not return until approximately 6:30 p.m.
Shortly after her arrival, the couple began arguing. The
testimony conflicts as to the nature of this argument. Kathy
testified that during the argument the defendant slapped her
in the face and hit her in the nose with his fist causing her
nose to bleed. Kathy then testified that the defendant
forced her to clean the blood from the floor and held his
pocketknife to her neck while she was cleaning. He then
elongated a wire coat hanger, wrapped it around her wrist,
and led her around by it.
According to Kathy's testimony, the defendant then took
her in the bedroom, removed a .22 caliber pistol from a
cardboard file and loaded it. When he next told her to dress
the children to go for a ride, she hesitated going to the
car, and the defendant pointed the gun at her side. Kathy
testified that the family went outside the apartment and she
began screaming and resisting her husband. She testified
that the defendant then struck her two or three times with
the gun, at least once on the forehead and then on the top of
her head. She dropped Crystal, whom she was carrying at the
time, and fell to the ground. The defendant got on top of
her, attempting to put one hand over her mouth and choke her
with the other.
Kathy then testified that she managed to get free from
the defendant, grab their oldest child and flee to a
neighbor's apartment. As she fled she saw the defendant pick
up Crystal, point the gun at her side and return to his
apartment.
Kathy's testimony then indicated that the neighbor,
Tamrny Stoke's, assisted with Kathy's bleeding and called the
police. Upon arriving, the police treated the disturbance as
a hostage situation. The officers unsuccessfully attempted
to contact the defendant in the apartment by pounding on the
door, using a bullhorn, shining spotlights in the windows,
and using a listening device to pick up sounds within the
apartment. At 1:00 a.m. officers entered the apartment,
finding the defendant and the child sleeping in the bedroom.
The defendant w a s placed under arrest. When asked by
officer's where the gun was he directed them to the .22
pistol located in the file cabinet.
Meanwhile, Kathy Brown was taken to the emergency room
of St. Peter's Hospital in Helena and examined by Dr. James
Burkholder. She informed the doctor that she had been struck
on the forehead and top of the head with the butt of a pistol
and punched in the nose. Dr. Burkholder testified that his
examination revealed a broken nose, a superficial laceration
on the forehead consistent with being struck by the butt of a
gun, and linear abrasions on her left wrist consistent with
being drug by a coat hanger.
At trial, Melissa Templin, an eight year old neighbor
child testified that she heard a scream, looked out her
window and saw Kathy on the ground with the defendant over
her. She saw Kathy get up and flee from the defendant but
did not see the defendant holding anything other than
Crystal.
J u l i e Long, a f o r e n s i c s e r o l o g i s t from t h e Montana S t a t e
Crime L a b o r a t o r y t e s t i f i e d t h a t t h e . 2 2 c a l i b e r p i s t o l had an
amount o f human blood on t h e b a r r e l .
I n h i s testimony, t h e d e f e n d a n t acknowledged h a v i n g an
argument w i t h h i s w i f e . He d e n i e d s l a p p i n g h e r , p u t t i n g a
k n i f e t o h e r t h r o a t , l e a d i n g h e r around h i s a p a r t m e n t w i t h a
coathanger, arming himself with his pistol, leaving the
apartment with his family, and pistol-whipping his wife.
Regarding K a t h y ' s broken n o s e , t h e defendant t e s t i f i e d t h a t
d u r i n g t h e c o u r s e o f t h e argument h e r e a c h e d f o r h e r t o t r y
t o g e t by h e r and due t o t h e s l i c k n e s s o f t h e m a t e r i a l o f h e r
blouse, her nose might have struck his forehead. He d i d
acknowledge t h a t s h e had a bloody n o s e , and t e s t i f i e d t h a t he
a s s i s t e d her i n stopping t h e bleeding.
The d e f e n d a n t t e s t i f i e d t h a t a f t e r t h e argument a b a t e d
Kathy t o o k Amber and l e f t t o v i s i t a n e i g h b o r . He t h e n p u t
Crystal t o s l e e p and went t o s l e e p h i m s e l f . Because of a
h e a r i n g impairment h e was u n a b l e t o h e a r and d i d n o t respond
t o the police' e f f o r t s t o c o n t a c t him w i t h i n t h e a p a r t m e n t .
He t e s t i f i e d t h a t h e w i l l i n g l y gave t h e p o l i c e t h e p i s t o l ,
which h e was c u r r e n t l y r e f u r b i s h i n g and which l a c k e d p a r t of
t h e f i r i n g mechanism.
A d d i t i o n a l l y , Arnold Garay, an a c q u a i n t a n c e o f b o t h t h e
defendant and Kathy Brown testified that Kathy frequently
s t a r t e d arguments w i t h t h e d e f e n d a n t , had once t h r e a t e n e d t h e
d e f e n d a n t w i t h a k n i f e , and o f t e n t r i e d t o claw h i s f a c e and
eyes. Mr. Garay also testified that Kathy had a poor
reputation for truthfulness.
The sole issue raised by the d e f e n d a n t on appeal is
whether t h e e v i d e n c e a t t r i a l was s u f f i c i e n t t o s u s t a i n t h e
conviction f o r felony a s s a u l t . Defendant c o n t e n d s t h a t t h e
evidence is sufficient at most to sustain a conviction for
domestic abuse.
A person commits the offense of domestic abuse if he (1)
purposely or knowingly causes bodily injury to a family
member or household member; or (2) purposely or knowingly
causes reasonable apprehension of bodily injury in a family
member or household member. Section 45-5-206 (1), MCA. The
purpose to cause reasonable apprehension or the knowledge
that reasonable apprehension would be caused shall be
presumed in any case in which a person knowingly points a
firearm at or in the direction of a family member or
household member, whether or not the offender believes the
firearm to be loaded. Section 45-5-206 (1), MCA. To convict
the defendant of the offense of felony assault the jury was
required to find that the defendant purposely or knowingly
caused (1) bodily injury to Kathy with a weapon, or (2)
reasonable apprehension in Kathy of serious bodily injury by
use of a weapon. Section 45-5-202(2), MCA. If, in fact, the
defendant purposely or knowingly caused serious bodily injury
to the victim, the offense would rise to the level of
aggravated assault. Section 45-5-202(1), MCA.
Thus, in cases where bodily injury is inflicted to a
family or household member, the distinction between felony
assault and domestic abuse is that felony assault requires
use of a weapon. In cases involving reasonable apprehension
of bodily injury in a family or household member, felony
assault, in comparison to domestic abuse, requires two
additional elements: use of a weapon and that the bodily
injury apprehended is of a serious nature. Sections
45-5-206, 45-5-202, MCA.
Here, the State offered proof of felony assault in that
defendant caused bodily injury with a weapon by striking the
victim with a handgun. The State's proof could also
establish the elements of felony assault if the jury found it
reasonable for Kathy to apprehend that the defendant might
shoot her or stab her with his pocketknife.
The well established standard of review regarding
sufficiency of the evidence is: "Whether, after reviewing
the evidence in the 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.
Tracy (Mont. 1988), 761 P.2d 398, 400, 45 St.Rep. 1705, 1707;
State v. Cox (Mont. 1987), 733 P.2d 1307, 1309, 44 St.Rep.
496, 498. "This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate
facts." Jackson v. Virginia (1979), 443 U.S. 307, 319, 99
S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573. "The weight of the
evidence and credibility of the witnesses is exclusively the
province of the trier of fact. If the evidence conflicts, it
is within the province of the trier of fact to determine
which shall prevail." State v. Oman (1985), 218 Mont. 260,
265, 707 P.2d 1117, 1120.
The issue of the sufficiency of the evidence in this
case is raised because of the conflict between the testimony
of the defendant and the victim. With respect to this
conflict, defendant's appeal is analogous to the appeal in
State v. Roberts (Mont. 1981), 633 P.2d 1214, 38 St.Rep.
1551, where we said:
The issue of sufficiency of the evidence boiled
down to the credibility of the State's witnesses
vis-a-vis the defendant's testimony. The jury by
its verdict resolved this conflict in favor of the
State.
Roberts, 633 P.2d at 1218, 38 St.Rep. at 1556. Here the jury
weighed the credibility of the conflicting evidence and chose
to believe the State's witnesses, which clearly established
with substantial evidence the essential elements of felony
assault.
Affirmed.
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