STATE v BRUBAKER

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No. 80-334 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981 STATE OF MONTANA, Plaintiff and Respondent, VS . JAMES W. BRUBAKER, Defendant and Appellant. Appeal from: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone. Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellant: John L. Adams, Billings, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Harold F. Hanser, County Attorney, Billings, Montana Submitted on briefs: February 17, 1981 Decided : Filed: @A!? 2 0 1981 MAR 2 8 1981 Mr. J u s t i c e J o h n Conway H a r r i s o n d e l i v e r e d t h e O p i n i o n o f t h e Court. On November 4 , 1 9 7 7 , d e f e n d a n t was c o n v i c t e d o f t h e offense of conviction (1979 aggravated and ordered Mont I June 4 , assault. . a , new This trial. 602 P.2d Court reversed State v. 974, 36 S t . R e p . the Brubaker 1915. On 1 9 8 0 , d e f e n d a n t was a g a i n c o n v i c t e d o f t h e o f f e n s e of aggravated a s s a u l t following a j u r y t r i a l i n t h e District C o u r t of the Thirteenth Judicial District. D e f e n d a n t now appeals. On J a n u a r y 1 2 , 1 9 7 7 , d e f e n d a n t - a p p e l l a n t brought h i s g i r l f r i e n d and roommate, S h a r o n W a t s o n , a l s o known a s S h a r o n B r u b a k e r , t o t h e emergency room o f B i g Horn County Memorial Hospital. Dr. Robert Whiting, the attending physician, t e s t i f i e d t h a t Watson was c o m a t o s e w i t h a b n o r m a l r e s p i r a t i o n and other damage. neurological symptoms indicating severe brain He n o t e d m u l t i p l e b r u i s e s o v e r t h e l e f t s i d e o f h e r forehead, her eye, her arms and s h o u l d e r s . He e s t i m a t e d t h a t t h e b r u i s e s were a t l e a s t f o r t y - e i g h t h o u r s o l d . Watson was transported by ambulance Montana, where s h e was t r e a t e d by Dr. to Billings, Lashman S o r i y a . Dr. S o r i y a d i a g n o s e d a head i n j u r y c a u s i n g s e v e r e b r a i n damage. H e a l s o o b s e r v e d m u l t i p l e b r u i s e s and s t a t e d i n h i s o p i n i o n t h e y were a p p ro x i m a t e l y f o r t y - e i g h t h o u r s o l d and c o u l d n o t have S o r i y a performed been caused by a fall. Dr. brain s u r g e r y on Watson t h e n e x t m o r n i n g t o r e l i e v e i n t r a c r a n i a l pressure caused e v a l u a t i o n of by a large t h e symptoms, blood clot. Based on his h i s o p i n i o n was t h a t o n c e t h e i n j u r y was i n f l i c t e d , Watson would h a v e l o s t c o n s c i o u s n e s s and c o u l d n o t have p o s s i b l y awakened. On January 17, 1977, Detective Rickard Ross interviewed appellant regarding the circumstances under which Watson was injured. closed Appellant told Ross that he had the bar where he and Watson lived and worked approximately 1: 00 a.m. on Wednesday, January at 12, 1977. Appellant stated that he spent approximately one-half hour hauling coal from an outbuilding into the bar and that he then discovered Watson lying unconscious on the floor on some electrical wires. He stated that he took Watson into their living quarters where she regained consciousness, took two aspirins, and drank some 7-Up. Appellant stated that Watson regained consciousness several times in the next few hours but that her condition deteriorated in the afternoon leading him to take her to the hospital that evening. A tape recording of appellant's statement was played at trial. Appellant's testimony at trial was essentially consistent with the taped statement. The State presented several witnesses at trial who contradicted appellant's story. Cy Welch and Jim Clifton testified that appellant had told them that Watson received her injuries Tuesday morning, rather than Wednesday morning. Dr. Whiting story. and Dr. Soriya also contradicted appellant's Both doctors testified that the bruises they observed on Watson's body on Wednesday evening were at least forty-eight hours old. The State also presented testimony from two witnesses as to a previous assault on Watson by appellant. Kenneth Perrin and Don Gilreath testified in late that sometime spring of 1977 they observed appellant strike Watson in the parking lot of the Prairie Diner east of Custer, Montana. In both instances, an admonition was given to the jury to comply w i t h the decision (1979) I Mont . , of this Court in S t a t e v. 602 P.2d 957, 36 S t . R e p . Just 1649. A p p e l l a n t r a i s e s two i s s u e s : 1. Whether the D i s t r i c t Court e r r e d in permitting w i t n e s s e s P e r r i n and G i l r e a t h t o t e s t i f y a s t o a n a l l e g e d p r i o r a s s a u l t by a p p e l l a n t on t h e v i c t i m a p p r o x i m a t e l y e i g h t o r n i n e months b e f o r e t h e c r i m e h e r e c h a r g e d ? 2. Whether t h e D i s t r i c t Court e r r e d d i s m i s s t h e c h a r g e of in failing to a g g r a v a t e d a s s a u l t b e c a u s e t h e r e was not s u f f i c i e n t evidence t o connect appellant t o the alleged a s s a u l t on t h e v i c t i m ? Appellant argues t h a t the testimony on t h e p a r t of t h e two w i t n e s s e s c a l l e d t o t e s t i f y a s t o a p r i o r a s s a u l t by t h e a p p e l l a n t on t h e v i c t i m was t o o r e m o t e i n t i m e . argues t h a t the prior charged was here. less He than a s s a u l t had no r e l a t i o n t o t h e c r i m e further the He a l s o argues t h a t the probative value inherent prejudicial nature of the testimony. I n t h e p r i o r B r u b a k e r c a s e , we a d d r e s s e d t h e i s s u e s raised here witnesses crimes. was and held properly that the admissible testimony as of evidence these of two other "The e v i d e n c e o f P e r r i n and G i l r e a t h r e l a t e s t o a n i n c i d e n t where t h e a s s a u l t by B r u b a k e r r e s u l t e d i n a s e v e r e i n j u r y t o S h a r o n and i t was a n a t t a c k w i t h i n t h e k i n d t h a t m u s t h a v e o c c u r r e d t o h e r on J a n u a r y 1 0 o r 11, 1977. S t a t e v . B r u b a k e r , 602 P.2d a t 981. "We r e c o g n i z e t h a t t h e a d m i s s i o n o f s u c h e v i d e n c e is a n e x c e p t i o n t o t h e g e n e r a l r u l e and a c c o r d i n g l y w e a r e o b l i g a t e d t o l o o k very carefully a t the r e l a t i v e probative v a l u e of s u c h e v i d e n c e , i f a n y , and weigh i t against the prejudice inherent i n t h i s type of e v i d e n c e i n t h e l i g h t of t h e a c t u a l need t o i n t r o d u c e s u c h e v i d e n c e by t h e s t a t e . " . ." S t a t e v. F r a t e s ( 1 9 7 2 ) , 160 Mont. P.2d 47, 50. The admission of "other determi n e d under a f o u r - p a r t sufficiently similar; time; ( 3 ) whether purposes whether test: by Rule , The is one of the Mont.R.Evid. ; and (4) t h e evidence outweighs its 404(b), t h e p r o b a t i v e v a l u e of . evidence (1) w h e t h e r t h e a c t s a r e is o f f e r e d inherently prejudicial nature. Mont crimes" 503 ( 2 ) whether t h e a c t s a r e t o o remote i n t h e evidence permitted 431, S t a t e v. 602 P.2d 957, 36 S t . R e p . f i r s t element of the a c t s were s i m i l a r i n n a t u r e . for J u s t (1979), 1649. t e s t was satisfied. The Second, t h e o t h e r a c t occurred a p p r o x i m a t e l y e i g h t months p r i o r t o t h e c r i m e c h a r g e d h e r e . T h i s is n o t t o o r e m o t e i n t i m e . Mont. 455 P.2d 233, 631. S t a t e v. J e n s e n ( 1 9 6 9 ) , 153 (Allowing evidence of previous c r i m e s f i f t e e n months b e f o r e o t h e r c r i m e c h a r g e d . ) Rule 404 ( b ) , Mont . R . E v i d . , evidence] may proof motive, of knowledge, be admissible for opportunity, identity, or ". . . states: other intent, Third, [other crimes purposes, such preparation, absence of mistake as plan, or accident." a course (Emphasis s u p p l i e d . ) The evidence was assaultive conduct suggestion that accident. I n S t a t e v. the by offered the victim to appellant had show and suffered to her H e i n e ( 1 9 7 6 ) , 1 6 9 Mont. of negate any injuries by 2 5 , 544 P.2d 1 2 1 2 , w e h e l d t h a t e v i d e n c e o f a p r i o r a s s a u l t on t h e same victim was admissible for precisely the same purpose as presented i n t h i s case. Finally, the evidence was highly probative and necessary t o the S t a t e ' s case. The e v i d e n c e i n t h i s c a s e was The entirely circumstantial. S t a t e proved co -- r p u s d e l e c t i and o p p o r t u n i t y , added substantially but the evidence of to the State's case by other crimes showing that a p p e l l a n t had on a p r i o r o c c a s i o n i n f l i c t e d s e r i o u s i n j u r i e s on t h e same v i c t i m and i n t h e same m a n n e r , t h u s n e g a t i n g t h e i n £ e r e n c e t h a t t h e i n j u r i e s were s u s t a i n e d by a c c i d e n t . Next, appellant contends the evidence was i n s u f f i c i e n t t o support t h e j u r y ' s v e r d i c t of g u i l t y . Reviewing the entire record this s u f f i c i e n t evidence t o support t h e v e r d i c t . Dr. Soriya clearly established that the v i c t i m w e r e i n f l i c t e d some f o r t y - e i g h t time a p p e l l a n t brought Appellant t e s t i f i e d the victim Court Dr. W h i t i n g and injuries the t h a t he found t h e v i c t i m S o r i y a ' s t e s t i m o n y showed t h a t have been sustained testimony in further a f a l l or directly the the t o the emergency room. injured e i g h t e e n h o u r s b e f o r e he s o u g h t t r e a t m e n t o f h e r Dr. to hours prior to finds some injuries. i n j u r i e s could not in several f a l l s . contradicted His appellant's t e s t i m o n y t h a t t h e v i c t i m had r e g a i n e d c o n s c i o u s n e s s s e v e r a l times. A p p e l l a n t had the opportunity t o commit t h e T h e r e i s no e v i d e n c e t h a t anyone o t h e r t h a n a p p e l l a n t was w i t h t h e v i c t i m when t h e i n j u r i e s o c c u r r e d . reported an assault on the victim. s t a t e m e n t provided evidence of motive. t h e e x i s t e n c e of physical prior crime. Appellant never Appellant's H i s s t a t e m e n t shows d o m e s t i c d i s c o r d which r e s u l t e d confrontation between own him and the in victim. A p p e l l a n t a d m i t t e d s t r i k i n g t h e v i c t i m on a n o t h e r o c c a s i o n during an testimony against argument of Perrin appellant over and is her prior Gilreath sufficient husband. is as added, a When the case the evidence built on circumstantial evidence to exclude any hypothesis consistent with appellant's innocence. See State v. Fitzpatrick (1973), 163 Mont. 220, 516 P.2d 605. The fact that appellant never reported the incident to the police and waited some forty-eight hours before seeking medical attention for life-threatening injuries is certainly not consistent with innocent conduct. Further, appellant's explanation of his failure to report the alleged assault to the sheriff--that he assumed the doctors would automatically do so--is belied by the fact that appellant never told Dr. Soriya that an assault had occurred. When the evidence is reviewed in a light most favorable to the State, State v. Pascgo (1977), 173 Mont. 121, 566 P.2d 802, we find that the verdict clearly supported by substantial evidence. is While the evidence is circumstantial in part, it indicates injuries inflicted by the appellant in a domestic quarrel and not some type of accidental injury. Affirmed. We concur:

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