State v. Bower

Decision Date02 July 1992
Docket NumberNo. 91-611,91-611
PartiesSTATE of Montana, Plaintiff and Respondent, v. David Forest BOWER, Defendant and Appellant.
CourtMontana Supreme Court

John E. Smith and Marcia M. Jacobson, Public Defender's Office, Missoula, for defendant and appellant.

Marc Racicot, Atty. Gen., Cregg W. Coughlin, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, County Atty., Robert Zimmerman, Deputy County Atty., Missoula, for plaintiff and respondent.

GRAY, Justice.

The defendant, David 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 ex-girlfriend, 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.

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 "[a]nd 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 him" 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, "I 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."

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 Sec. 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)(1), M.R.Evid., the prosecution 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 "unless 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.

II.

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), --- Mont. ----, 830 P.2d 549. 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), 231 Mont. 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. Cope 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 "[w]e 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...

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