State v. Bromgard

• Citation: 862 P.2d 1140,261 Mont. 291
• Decision Date: 02 November 1993
• Docket Number: No. 91-170,91-170
• Parties: STATE of Montana, Plaintiff and Respondent, v. Jimmy Ray BROMGARD, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 1140

862 P.2d 1140

261 Mont. 291

STATE of Montana, Plaintiff and Respondent, v. Jimmy Ray BROMGARD, Defendant and Appellant.

No. 91-170.

Supreme Court of Montana.

Submitted on Briefs Aug. 26, 1993.

Decided Nov. 2, 1993.

William F. Hooks, Appellate Defender, Helena, for defendant and appellant.

Joseph P. Mazurek, Atty. Gen., George M. Schunk, Asst. Atty. Gen., Helena, Dennis Paxinos, Yellowstone County Atty., David W. Hoefer, Deputy County Atty., Billings, for plaintiff and respondent.

WEBER, Justice.

Jimmy Ray Bromgard (Bromgard) appeals from a judgment of the Thirteenth Judicial District, Yellowstone County. In November 1987, a jury convicted Bromgard of three counts of sexual intercourse without consent. Bromgard was sentenced to three forty-year terms of imprisonment in the Montana State Prison to be served concurrently and was designated a dangerous offender.

This Court dismissed Bromgard's initial appeal on August 30, 1988 for failure to file an appellant's brief or Anders memorandum. On March 29, 1991, Bromgard filed a petition for post-conviction relief. This Court denied relief on six of the seven claims alleged; we granted relief on Bromgard's claim of ineffective assistance of counsel by virtue of his counsel's failure to properly appeal the convictions. The state Appellate Defender was appointed as counsel by this Court. We granted the Appellate Defender's motion to file an out-of-time appeal.

The question presented for our review is whether the District Court erred in denying defendant's motion for a directed verdict of acquittal at the close of the defendant's case-in-chief. We affirm.

In the early morning hours of March 20, 1987, an intruder entered the home of a Billings family through a bathroom window. In addition to burglarizing the home, the intruder raped an eight-year-old girl while the rest of the family slept.

The assault took place between the hours of 4:00 and 5:00 a.m. The intruder awakened the victim, threatened her and gagged her mouth with clothing, and then committed acts of oral, vaginal and anal intercourse. He then put a pillow over her head and left.

After the man left, the victim woke her father. Her father woke the victim's mother so that he could look around the house. He noticed a bathroom window propped open with a stick and immediately notified the police. The victim was taken to a physician who confirmed that she had been vaginally and anally raped.

The victim had been able to see her assailant quite clearly as a hallway light had been left on during the night. A police artist made a composite sketch of the assailant from the description the victim gave to him. Another officer looked at the sketch and mentioned that he thought the sketch looked like Bromgard. The sketch was shown to a neighbor of Bromgard's who also said the man in the sketch was Bromgard. Police also found a stolen checkbook belonging to the victim's mother near Bromgard's home.

The Billings police then conducted a lineup of six people, including Bromgard. The victim identified Bromgard from the lineup and also identified Bromgard at trial as the man she had picked out of the lineup.

Bromgard agreed to submit head and pubic hair samples. These samples were sent to the State Crime Laboratory and were found to be indistinguishable from certain samples recovered from the victim's bedding. Bromgard was arrested, charged and tried on three counts of sexual intercourse without consent. The District Court denied Bromgard's counsel's motion for a directed verdict of acquittal at the close of Bromgard's case-in-chief. The jury found Bromgard guilty of all three counts.

Did the District Court err in denying Bromgard's motion for a directed verdict of acquittal at the close of the evidence?

Defense counsel moved the court to direct a verdict of acquittal on the ground that the evidence was conjectural and insufficient to prove Bromgard's guilt beyond a reasonable doubt. The motion was denied. The decision to direct a verdict in favor of a defendant lies within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. State v. Haskins (1992), 255 Mont. 202, 210, 841 P.2d 542, 547. A directed verdict of acquittal is appropriate only when there is no evidence to support a guilty verdict. Haskins, 841 P.2d at 547.

[T]he defendant is entitled to an acquittal if reasonable men could not conclude from the evidence taken in a light most favorable to the prosecution that guilt has been proved beyond a reasonable doubt.

State v. White Water (1981), 194 Mont. 85, 87-88, 634 P.2d 636, 638.

Bromgard contends that the evidence offered by the State fell into three categories, none of which supports the conviction. We will address each category separately.

a. The hair sample comparison.

The State Crime Lab compared hair samples found in the victim's bedding with hair samples taken from the victim's head and with Bromgard's head and pubic hair samples. Forensic scientist Arnold Melnikoff of the State Crime Lab testified that both head hair and pubic hair taken from the victim's bedding were microscopically comparable to the samples provided by Bromgard.

Unlike fingerprint comparison, hair comparison does not produce absolute identification. Melnikoff testified that in his experience the odds were one in one hundred that two people would have head hair or pubic hair so similar that they could not be distinguished by microscopic comparison and the odds of both head and pubic hair from two people being indistinguishable would be about one in ten thousand.

Other courts have held that hair...