STATE v GREEN
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No. 84-41 I N THE SUPREME COURT O THE STATE O M N A A F F O T N 19 84 STATE OF MONTANA, P l a i n t i f f and Respondent, -vsGEORGE GREEN, D e f e n d a n t and A p p e l l a n t . APPEAL FROM: D i s t r i c t Court of t h e Fourteenth J u d i c i a l D i s t r i c t , I n a n d f o r t h e County o f M u s s e l s h e l l , The H o n o r a b l e Roy R o d e g h i e r o , J u d g e p r e s i d i n g . COUNSEL O RECORD: F For Appellant: George G r e e n , p r o s e , Roundup, Montana F o r Respondent: Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana J o h n L. P r a t t , County A t t o r n e y , Roundup, Montana S u b m i t t e d On B r i e f s : Decided: Filed: & */- Clerk J u l y 1 9 , 1984 A u g u s t 1 5 , 1984 Mr. Justice John C. Sheehy delivered the Opinion. of the Court. George Green appeals from his conviction of misdemeanor assault in the District Court, Fourteenth Judicial District, Musselshell County. Green had earlier been charged in the Justice Court in Roundup Township, of misdemeanor assault under section 45-5-201(1) (c), MCA, of purposely and knowingly making physical contact in an insulting and provoking manner against twelve-year-old Michael Fawcett, grabbing him by the arms, setting him down, and attempting to hypnotize him. He was convicted in Justice Court, and sentenced to ten days in jail and fined $500. He appealed to the District Court, where, after trial by the court, a jury having been waived, defendant was again found guilty of misdemeanor assault and sentenced by the District Court to five days in jail and a fine of $500. It is from the latter judgment that Green appeals. Mike Fawcett testified that on June 17, 1983, he went to the city park in Roundup for baseball practice. When he first arrived, he saw sitting in the bleachers, an associate of the defendant, Mary Okey Green, conducting a session with Fawcettqs young teammate, Jason Djernes. Afterward Jason told Mike that the session was "weird," that he went to Switzerland, Norway, and other exotic places like Hawaii. Mike testified that when ba-seball practice was finished, he walked toward his home and in so doing, passed close to George Green. Mike testified that Green grabbed him by the arms, and sat him down, and at this time, he was terrified. Green said, "Look at me, I can help you with your pitching." Then Green started counting, "One, deeper, deeper, deeper, deeper, two, float deeper, deeper, deeper, deeper," - cetera et t h r o u g h t h e numbers. Mike t e s t i f i e d t h a t w h i l e it was g o i n g on he f e l t s c a r e d . I n t h e meantime, Susan Hewett, whose nephew had a t t e n d e d the baseball practice, l e a r n e d from a n o t h e r young boy t h a t someone w a s i n t h e p a r k h y p n o t i z i n g p e o p l e . c i t y park, and i n l o o k i n g around, doing h i s routine on the other She went t o t h e h e a r d t h e v o i c e o f Green side of the trees. She a t t e m p t e d t o go t h e r e b u t was i n t e r c e p t e d by Mary Okey Green, who kept asking meditation. purposely her whether she wished to engage in On t h e s t a n d , Mary Okey Green a d m i t t e d t h a t s h e intercepted Susan Hewett t o keep h e r away from George Green w h i l e he was c o n d u c t i n g h i s s e s s i o n w i t h Mike. A t any r a t e , Susan Hewett r e f u s e d t o be i n t e r c e p t e d , made h e r way t o Green and s h o u t e d what was he d o i n g . be q u i e t . H e told her t o A t t h i s p o i n t M i k e g o t up and r a n from t h e s c e n e . H e t e s t i f i e d t h a t h e w a s s c a r e d a s h e r a n away. Mike a l s o t e s t i f i e d t h a t Green grabbed f o r him a s h e s t a r t e d t o r u n away and t r i e d t o keep him t h e r e . I n d e f e n s e , Green and Mary Okey Green d e n i e d t h a t a t any p o i n t Green had touched Mike o r grabbed f o r him i n c o n d u c t i n g the session. G r e e n ' s d e f e n s e was t h a t he t e a c h e s m e d i t a t i o n and t h a t m e d i t a t i o n i s a method o f h a v i n g t h e s u b c o n s c i o u s mind overcome t h e c o n s c i o u s mind, characterizes as the "devil." t h e l a t t e r o f which Green He maintains that he had r e a c h e d l e v e l 1 7 i n c o u n t i n g w i t h Mike, which Green s t a t e s i s t h e l e v e l of p e a c e , and a t t r i a l , t h e r e c o r d i n d i c a t e s he was d i s t u r b e d , i f n o t a n g r y , a t Susan H e w e t t f o r i n t e r r u p t i n g t h e proceedings. Green conducted h i s a p p e a l w i t h o u t b e n e f i t o f c o u n s e l . For that reason, record c a r e f u l l y , we have examined and t h e b r i e f the transcript f i l e d by Green. of the He r a i s e s two issues on appeal, whether there was sufficient evidence to justify his conviction of misdemeanor assault, and whether the District Court could properly order him to cease teaching meditation in public parks in the light of the First Amendment. Our powers of appellate review are the sa.me whether or not a defendant appealing from a criminal conviction is represented by counsel on the appeal. It may generally be stated that the Supreme Court does not try facts on appea.1, but determines whether a miscarriage of justice has been shown. 827. State v. Stod.dard. (1966), 147 Mont. 402, 412 P.2d Disputed questions of fact and credibility will not be disturbed on appeal-. 402, 421 P.2d weight to be 722. State v. Crockett (1966), 148 Mont. The credibility of witnesses and the assigned to their testimony is for the determination of District Court in a nonjury trial. Matter of Jones (1978), 176 Mont. 412, 578 P.2d See 1150. Disputed questions of fact will not be considered on appeal, State v. Messerl-y (1-952) 126 Mont. 62, 244 P.2d 1054, and , all conflicts judgment. are resolved on appeal. in favor of the State v. Cor (1964), 144 Mont. 323, 396 P.2d 86. If there is substantial evidence pointing to the judgment, . that is, such relevant evidence as a reasonable mind might a.cceptas adequate to support a conclusion, viewed in a light most favorable to the State, a conviction must be sustained. State v. Wilson (Mont. 1981), 631 P.2d 1273, 38 St.Rep. 1040. Under those appellate decisions, we find the testimony of Mike Fawcett is the kind of substantial evidence upon which this verdict must be sustained. The second issue raised by Green is that the court limited his First A-mendment right of free expression in ordering him not to engage voung people in meditation sessions without the consent or presence of their parents or guardians. In admonishing the defendant after passing judgment of guilt, the District Court told the defendant: "Your intentions originally may have been good, and maybe they have been good all along. But you have placed yourself in such a position, dealing with these young children without their guardian or parent around, you are taking the child's upbringing in your own hands without any permission or any say so by the parent or their guardian. And I don't know what they do in Denver or down that Do you way, hut around_ here that's a no no. understand that? "MR. GREEN: I understand." There is no need for us to pass on the propriety of the admonition although it seems to have been common sense advice to the defendant. The a.ppea1 here is from the judgment of conviction. sentence which was The levied against the defendant was that he serve five days in the county jail, and pay a fine of $500. He is not prevented under the sentence from any expression allowed him under the First Amendment. Affirmed. We Concur:
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