                            NO. 94-118
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                               1995


STATE OF MONTANA,
          Plaintiff and Respondent,
     v.
ROBERT A. MEYERS,
          Defendant and Appellant.



APPEAL FROM:   District Court of the Eighth Judicial District,
               In and for the County of Cascade,
               The Honorable Thomas M. McKittrick, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Bethany F. Schendel, Attorney at Law, Great Falls,
               Montana
          For Respondent:
               Hon. Joseph P. Mazurek, Attorney General; Barbara C.
               Harris, Assistant Attorney General, Helena, Montana

               Brant Light, County Attorney; Michael Fanning,
               Deputy County Attorney, Great Falls, Montana


                               Submitted on Briefs:    May 12, 1995
                                            Decided:   August 4, 1995
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
        This is an appeal from a jury verdict in the Eighth Judicial

District Court, Cascade County.          We affirm.

        The following are the dispositive issues:

I.      Was the jury verdict supported by sufficient evidence?

II.      Did the prosecutor make improper remarks during his closing

argument such as to necessitate a new trial?

         Shelly Migneault (Shelly) testified as follows at the trial:

On April 15, 1993, Shelly returned from the restaurant where she

worked as a waitress at approximately 3:30 a.m.              After she returned

home,     she turned on the kitchen light, a lamp, the television, and
the     VCR.   She then changed her clothes and returned to the living

room,     where she heard snoring.   She looked around and found that

someone was lying behind her couch asleep.               Shelly       grabbed   her

purse and keys and drove to a nearby grocery store where she called
911.       Two officers met her at the store and drove back to her

apartment with her.       Shelly described the layout of the apartment

and trailed behind the officers until she heard a scuffle begin, at

which time she ran out of the apartment

         The testimony of officers John Catlett (Catlett) and Paul

Smith (Smith) established the following:         Catlett and Smith entered

Shelly's apartment, walked through the kitchen and dining area, and

into the living room.      Catlett, who went first, did not see anyone

in the living room, but as he walked around the couch, Robert A.

Meyers (Meyers) sprang up.           At about         this    time,    Smith was

approaching the couch.        Meyers lunged at Smith, overturning the


                                     2
couch in the process.           As     Smith   struggled   with    Meyers,   Catlett
attempted to assist Smith in getting control of Meyers.                       Meyers
struggled to free himself.

       After Catlett told Meyers to stop struggling, he noticed a

wooden screwdriver handle protruding from Meyers' pocket.                    Catlett
called for additional assistance on his radio and continued to

restrain      Meyers.     Finally,     Catlett threatened to use his pepper

mace    on Meyers       and   Meyers    settled   down     so that he could be

handcuffed.
       The testimony established that an investigation at the scene

showed that all windows and both doors had pry marks on them that
matched the screwdriver found in Meyers' pocket.                  The marks had not

been on the windows and doors before the incident.
       Smith testified at trial that Meyers grabbed his face first,

after lunging across the couch.            Smith sustained cuts and abrasions

to the face and strained his back in the struggle with Meyers.

Meyers testified that he did not remember anything from the time he

smoked a marijuana cigarette with a friend until he woke up behind

Shelly's couch.         Meyers, who had been living with his brother for

several weeks, also testified that his brother lived next door to

Shelly but that he had never seen her.              Meyers stated that when he

woke up he did not know where he was and all he wanted to do was

get    out.   He said he remembers falling into someone and wrestling

to get free, but he was not aware that they were police.                     He said

that he stopped struggling when he heard the threat about mace.



                                           3
     Although Meyers was originally given a citation for resisting
arrest, he was charged by information with felony assault pursuant

to § 45-5-202, MCA, criminal mischief, a misdemeanor, pursuant to

§ 45-6-101, MCA, and criminal trespass to property, a misdemeanor,

pursuant to 5 45-6-203, MCA.               On August 23 and 24, 1993, he was

tried in the Eighth Judicial District Court, Cascade County, and

found guilty on all three counts.

     On November 12, 1993, Meyers was sentenced to ten years in the

Montana State Prison for felony assault and six months in the

Cascade County Jail for the charges of criminal mischief and

trespass    to   property      misdemeanors.          The   jail    time    was   to   run

concurrently     with    the   prison   time    and   numerous     parole   conditions

were imposed.
     Meyers appeals his conviction.

                                           1.


     Was the jury verdict supported by sufficient evidence?

     Meyers contends that there were significant contradictions in

the testimony of the two officers and that there was not sufficient

evidence presented at trial to convict him.                         As a result he

contends that his motion for judgment notwithstanding the verdict

(JNOV) should have been granted by the District Court.

     The    record      indicates   that    after     the   State's   case-in-chief,

Meyers moved the court to dismiss the charges against Meyers

because the State had not presented enough evidence to support a

prima facie case of felony assault or misdemeanor criminal
mischief.    The record also shows that following the jury verdict,


                                            4
counsel   for Meyers asked the court to "overturn" the verdict. At
no time did counsel ask for a JNOV or,            more appropriately, a
directed verdict.

        In the course of trial, defense counsel did contend there was

a lack of sufficient evidence.       A directed verdict is appropriate
only where there is no evidence upon which the trier of fact could

base a guilty verdict.      State v. Henderson (1994), 265 Mont. 454,
877 P.Zd 1013.

        At trial, counsel also argued to the court that the State had

not presented a prima facie case.            This Court will overturn a

verdict only when after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could not

have found the essential elements of the crime beyond a reasonable

doubt.      State v. Arlington (1994), 265 Mont. 127, 875       P.2d 307.

        A felony assault will be found when a person "purposely or

knowingly causes bodily injury to . a peace officer." Section

45-5-202, MCA.     While Meyers testified that he did not know who the

men were in the room,      both   officers   testified   that   Meyers    came

across the couch at Smith.        It was the jury's responsibility to

sort through any inconsistencies in the officers'               stories    and

Meyers' story.     Once evidence is admitted, it is the trier of fact

that has the duty to weigh it and decide which parts it finds

credible.      State v. Gollehon (1993), 262 Mont. 1, 864 P.2d 249.

        Smith testified that Meyers "lunged" at him and grabbed at his

face.     Meyers' own testimony reveals that his only thought was that

he had to defend himself because he thought he was going to get

                                     5
beat    up.   He stated that he had to get out of there.       When Officer
Smith's       testimony is     added to Meyers'   testimony    and officer
Catlett's testimony that it took two officers to subdue Meyers, the

record shows that substantial evidence exists to demonstrate that

the essential elements of felony assault had been committed.

        Further, both officers were in uniform. When asked about his

recognition of this fact, Meyers' only reply was that all he knew

was that he had to get out of there because two guys were going to

beat him up.
        A person need not form the specific intent to commit a crime

or intend the result that occurred to be found guilty of knowingly

committing a crime.          State v. Blalock (19881, 232 Mont. 223, 756

P.2d 454.       It was obvious from Meyers' testimony that he intended

to do what he had to in order to escape.
        We conclude that any rational trier of fact could have found

the essential elements of the crimes of which Meyers was convicted

beyond a reasonable doubt.         We hold the District Court was correct
in refusing to direct a verdict.

                                      II

        Did the prosecutor make improper remarks during his closing

argument such as to necessitate a new trial?

        Meyers argues that the State made insinuations during closing

statements that Meyers intended harm to Shelly          and that because

these     allegations   were     not founded on any kind of evidence

introduced at trial,         the verdict should be reversed.     The State
replies that it did nothing but react to statements made during

Meyers'    concluding   comments.

        Counsel   for   Meyers   argued to     the   jury during closing

arguments:
        And when the judge instructs you as to what you're not
        supposed to do, sentiment, conjecture, sympathy, you have
        to remember in that regards what the defendant is not
        charged with and what is not an issue here in this case.
        He is not charged with committing or attempting to commit
        any crime of violence against Shelly Migneault. With all
        due respect, he's not charged with that, is he?

        The State then made the following comments during its closing

argument:
        The defense attorney also said, for example, that of
        things that are not shown that the defendant was not
        charged   with a crime of violence       against  Shelly
        Migneault. But comments like that can only do one thing,
        raise a question in your mind as to what the defendant
        was doing there in the first place. Do we have proof as
        to why he was there? No. We don't have proof as to why
        he was there.
             But in the Court's instructions, as you recall, the
        Court stated that you can use your common sense, and you
        can infer from the defendant's acts what his intent was.

In State v. Staat (1991), 251 Mont. 1, 822 P.2d 643, we held that

a prosecutor may comment on inferences to be drawn from various

phases of evidence.       However,    we conclude that the prosecution's

statement that the jury could use its common sense to infer from

the defendant's acts what his intent was with regard to Shelly

Migneault was not appropriate.
        Appellant must show that prosecutorial misconduct worked to

deprive him of his rights.           Staat
                                     ,       251 Mont. at 10, 822 P.2d at

648.      There is no evidence presented to show that such was the

case.     While the State's use of first person singular in several
                                        7
statements is unfortunate, the references to what counsel thinks is

irrelevant.        The record   indicates     that   the     court     correctly
instructed the jury of its responsibility.

       While     such   personalized       statements   of      counsel      are

inappropriate,     they do not automatically work to deprive Meyers of

his    rights.   Meyers had the responsibility to produce evidence that

the comments by opposing counsel worked to prejudice him.                Without

proof of such prejudice, mere allegations are inadequate to warrant

a new trial.       State v. Campbell (1990), 241 Mont. 323, 787 P.2d

329.      Meyers failed to present any evidence to demonstrate

prejudice.
       While the prosecutor     should have chosen more              appropriate

language, we conclude that his remarks to the jury do not

necessitate a new trial.

       Pursuant to Section I, Paragraph 3 cc), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document

with the Clerk of this Court and by a report of its result to State

Reporter Publishing Company and West Publishing Company.

       Affirmed.




                                       8
we concur:




       Chief Justice   n
                                         August 4, 1995

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:


BETHANY F. SCHENDEL
 1         -
Attorney at, L;~W
600 Central Plaza, Ste. 18
Great Falls, MT 59401

Hon. Joseph Mazurek
Attorney General
Justice Bldg.
Helena, MT 59620

Brant Light, County Attorney
Michael Fanning, Deputy
Cascade County Courthouse
Great Falls, MT 59401

                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
