State v. Cyr

• Decision Date: 03 December 1987
• Docket Number: No. 87-249,87-249
• Citation: 229 Mont. 337,746 P.2d 120,44 St.Rep. 2013
• Parties: STATE of Montana, Plaintiff and Respondent, v. Thomas J. CYR, Defendant and Appellant.
• Court: Montana Supreme Court

Page 120

746 P.2d 120

229 Mont. 337

STATE of Montana, Plaintiff and Respondent, v. Thomas J. CYR, Defendant and Appellant.

No. 87-249.

Supreme Court of Montana.

Submitted on Briefs Oct. 29, 1987.

Decided Dec. 3, 1987.

C.F. Mackay, Anaconda, for defendant and appellant.

Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, John N. Radonich, Co. Atty., Anaconda, for plaintiff and respondent.

HARRISON, Justice.

This is an appeal from the District Court of the Third Judicial District of the State of Montana, in and for the County of Deer Lodge, the Honorable Robert Boyd presiding. The appellant was charged with the crime of aggravated assault, a felony, in violation of Sec. 45-5-202(1), MCA. He was found guilty by a jury after a five day trial of the crime of felony assault. Thereafter a notice was filed requesting a new trial based on newly discovered evidence. The motion was denied by the District Court and this appeal followed. We affirm.

Testimony at trial indicates that Brenda Cyr, appellant's wife, met two men from Butte, Montana at an Anaconda, Montana, bar, on June 25, 1986. One of the men, Mark Spolar, testified that he understood that Brenda and her husband were separated. During the afternoon of June 25, 1986, Brenda, in the company of Spolar and others, frequented several bars in the city of Anaconda. Throughout the late afternoon and evening, several encounters were had with the appellant who was trying to get his wife to come home. In one of the encounters, Brenda went over to the appellant's car, he jerked her around, grabbed her by the throat and cursed her, all of which made her more reluctant to accompany the appellant to their home.

After frequenting several bars most of the afternoon and early evening, Spolar, with several of his motorcycle club friends decided to return to Butte. When they went outside, one of them, after getting on a motorcycle and starting off, was pursued by the appellant in his car. This appeared to them to be an attempt to run them over.

During the day when appellant went to one of the bars where the group was partying, and after he had confronted several of them, several members of the group reported seeing a gun on appellant, though he did not use it in a threatening manner. However, the several of the members were alerted that he was armed. This called for some discussion, particularly after his alleged attempt to run down the motorcyclists.

At closing time, Mark Spolar, Manuel Madrid, and Brian Shepard, went outside the Garden Bar, where they again encountered the appellant, seated in his car. Manuel Madrid by that time had obtained a hand gun from Jean Woodbury, one of the women in the party, so that they would have some "equal protection" in case they were confronted by the appellant. About that time, Spolar confronted the appellant in his car and he attempted to get him out of his car and in the process kicked out at least one window. At that time the appellant fired his pistol, hitting Mark Spolar in the groin area. Several more shots were fired by the appellant, and at that time Manual Madrid opened fire on the appellant. One of the shots fired by Madrid wounded appellant's small son who was seated inside the appellant's car.

An investigation followed and the appellant and Madrid were both charged by the authorities of Deer Lodge County. The appellant received a nine year sentence with four years suspended. Also, his sentence was enhanced by an additional three years, to be served consecutively with the above sentence, for the use of a firearm in the commission of the offense.

Three issues are presented for review by this Court:

(1) Whether there was sufficient evidence before the jury upon which to base their verdict.

(2) Did the District Court err in refusing to grant appellant's motion to dismiss at the close of the State's case?

(3) Did the District Court err in refusing to grant the appellant's motion for a new trial on the basis of newly discovered evidence?

Concerning issue 1, sufficiency of the evidence, there is no dispute that the appellant shot Mark Spolar. There were witnesses other than Spolar to that effect, and Spolar's testimony is sufficient of itself to convict. Spolar's activities in kicking out the window were not sufficient, and were not found to be sufficient by the jury, for the appellant to open fire, shooting through the door of his car and seriously wounding Spolar. This is a question for the jury. The jury heard the evidence in the five-day trial and their verdict indicates that after listening to all witnesses they found the appellant guilty.

In proving the offense of felony assault, the State had to prove the following elements: (1) purposely or knowingly cause; (2) bodily injury; (3) to another; (4) with a weapon. Section 45-5-202(2), MCA.

In State v. Oliver (Mont.1987), 742 P.2d 999, 1002, 44 St.Rep. 1567, 1572, we stated:

The standard for review of the sufficiency of the evidence is: "Whether, after viewing 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." Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2787, 61 L.Ed.2d 560, 573.

Under this standard there was sufficient legal evidence to support the jury's verdict.

The second issue is whether the court properly denied defendant's motion to dismiss. Here the appellant's argument is tied closely to the first issue where we found sufficient evidence to convict. As noted above, there was substantial credible evidence to support the charges and therefore the trial court correctly denied appellant's motion.

Issue 3, did the court properly deny the motion for a new trial? Section 46-16-702, MCA, provides for the granting of a motion for new trial "in the interest of justice." Where the basis for the motion for new trial is newly-discovered evidence, the long-standing criteria for evaluating the motion has been set forth by this Court in State v....