                                                             T-
                                 NO. 83-462

                IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      1984



STATE OF MONTANA,
                          Plaintiff and Respondent,

     -vs-

LEONARD RAY ORTEGA,
                          Defendant and Appellant.




APPEAL FROM:       District Court of the Fourth Judicial District,
                   In and for the County of Missoula,
                   The Honorable Douglas Harkin, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:




         For ~espondent
                      :

                 Hon. Mike Greely, Attorney General, Helena, Montana
                 Robert L. Deschamps, 111, County Attorney, Missoula,
                 Montana




                                 Submitted on Briefs:    March 1, 1984

                                              Decided:   April 19, 1984


Filed:    APR 1 3 t984



          ,.
          .
                                 Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
      Defendant, Leonard Ray Ortega, appeals from a conviction
of   robbery entered by       the District Court of the Fourth
Judicial    District, in      the    County    of    Missoula,      and   the
imposition    of    a   40   year    sentence,      with    thirty       years
suspended, and a dangerous offender designation.
      On December 29, 1980 the defendant, Leonard Ray Ortega,
was charged with the offense of robbery, a felony, in the
District Court of Missoula County.             The defendant pled not
guilty, was tried and found guilty.              The sentencing judge
designated defendant a dangerous offender and imposed a forty
year sentence with thirty years suspended.
     After the defendant's conviction on June 19, 1981, a
Notice of Appeal was filed by his attorney and transcripts of
the trial ordered.        In February of 1982, upon closer review
of the trial transcript, the defense attorney informed the
defendant that in his belief there were no issues which
merited an appeal to the Supreme Court.             Upon written request
and consent of the defendant the defense attorney withdrew
from the case.
     March 1, 1982 a second defense attorney was appointed to
prosecute defendant Ortega's appeal.            He concluded that the
transcript revealed no meritorious issues and invited the
defendant     to   suggest    any    issues     which      he   considered
appealable.        In   response    to   the   issues      raised   by    the
Defendant, defense counsel explained why he believed they
were insufficient to sustain an appeal.               In April of 1982,
the defendant's second attorney submitted a report to the
Montana    Supreme Court, stating that having                reviewed the
transcript and other materials from the case, he found no
appealable issues.       On April 7, 1982, this Court granted the
defendant t e n days t o f i l e w r i t t e n o b j e c t i o n s t o t h i s r e p o r t

and t o show c a u s e why t h e a.ppea1 s h o u l d n o t be d i s m i s s e d a s

frivolous.           When t h e d e f e n d a n t f a i l e d t o show good. c a u s e f o r

appeal,       t h i s C o u r t e n t e r e d a P e r Curiam Order on A p r i l 29,

1982 d i s m i s s i n g M r .      O r t e g a ' s a p p e a l f o r l a c k o f an a p p e a l a b l e

issue.

        The      defendant            appeared        before         the      Sentence        Review

Division        of    t h e Montana          Supreme C o u r t on August                 11, 1982.

His     s e n t e n c e was       reduced        to   twenty y e a r s ,        with    ten years

suspended            but      the       dangerous           offender         designation           was

retained.

        The     defendant           petitioned         the    District          Court     f o r Post

Conviction            Relief         alleging         improper         dangerous           offender

d . e s i g n a t i o n and denial- o f          e f f e c t i v e assistance of           counsel.

The t r i a l judge d e n i e d r e s c i s s i o n o f t h e dangerous o f f e n d e r

s t a t u s and on J u l y 11, 1983 a p p o i n t e d a p u b l i c d e f e n d e r t o

investigate            the        remaining            issue         concerning          effective

a s s i s t a n c e of counsel.

        The     public        defender           concurred         with       the      defendant's

p r e v i o u s a t t o r n e y s t h a t t h e r e e x i s t e d no m e r i t o r i o u s i s s u e s

f o r an a p p e a l .        However,         he a r g u e d t h a t t h e d e f e n d a n t was

denied      due p r o c e s s        by    the    f a i l u r e of    t h e Montana         Supreme

Court t o o r d e r t h e defendant's                    former a t t o r n e y t o submit a

brief      along with             his     "no m e r i t "     letter       to    the    Court,      as

c o n s t i t u t i o n a l l y mandated i n Anders v. C a l i f o r n i a ( 1 9 6 7 ) , 386

U.S.    738, 18 L.Ed.2d               493, 87 S . C t .       1396.        The D i s t r i c t C o u r t

ruled      in    favor       of     the     defendant        and o r d e r e d t h e       district

c o u r t f i l e t o be t r a n s m i t t e d t o t h i s C o u r t .        Accordingly, t h e

public      defender          filed       the     appellants          brief       outlining        the

i s s u e which might a r g u a b l y s u p p o r t an a p p e a l .

        During t h e e v e n i n g o f November 23,                    1980, Bob and Loren

Lutzenhiser           left       Luke's       Bar     in     downtown        Missoula.           They
walked east along Front Street toward their parked car when
they heard footsteps approaching them from the rear.                 Alan
Hanson and the defendant walked past the Lutzenhisers, then
turned and confronted them.            Responding to Hanson's threat of
being knifed, Loren handed Hanson the six pack of Rainier
beer he and his brother had purchased at Luke's.             Hanson then
demanded        money    from    Bob    Lutzenhiser.        During   this
confrontation defendant Ortega stood approximately two feet
behind Hanson.          Although Ortega remained silent, he taunted
the     two brothers       by   aiming martial arts kicks close to
Loren's head.
        Bob made an effort to end the entire episode.             Careful
not to turn his back on Hanson who had threatened him with a
knife, Bob instructed Loren to continue to their car, while
Bob returned to Luke's to buy more beer.             Hanson allowed him
to     walk   by,    but    Marshall     Young,   another   of   Hanson's
companions, tripped Bob onto the sidewalk and proceeded to
kick him in the head.            Testimony indicates that Hanson and
Ortega joined Marshall in this assault on Bob Lutzenhiser
while the other two members of their gang fled.              Loren drove
his car onto the sidewalk disbursing the assailants and
flagged down a policeman who happened to be patrolling the
neighborhood on his regular duty.             The officer summoned an
ambulance to the scene and within minutes apprehended the
defendant and his four companions parked nearby in Ortega's
car.      All    five    suspects were     arrested and the car was
impounded.          Pursuant to    a    search warrant, investigating
officers found a six-pack of Rainier beer on the floorboards
of the back seat and discovered a wallet containing Bob
Lutzenhiser's driver's license stashed beneath the driver's
seat.
       All of the suspects who testified for the defense agreed
upon    the   afternoon's   events which    lead    to    the    incident
resulting in      their   arrests.     Defendant Ortega , who was
visiting      from his hometown, Seattle, Washington, met the
other four at the home of his aunt, Marshall Young's mother.
They imbibed ample quantities of beer and wine.            In the words
of Marshall they consumed "eight to ten bottles" of wine in a
couple of hours.      Toward dusk they decided to drive around
Missoula.      Ortega admitted that he was the driver of the car
at all times during the course of the evening.             In Missoula,
they initially went to the Top Hat where they drank more
alcohol.       The confrontation with the Lutzenhiser brothers
occurred as these five were returning to Luke's Bar from the
Top Hat.
       The only issue presented upon appeal is whether the
State    produced    substantial     evidence   that     the    defendant
personally committed the offense of robbery.
       Our scope of review is set forth in State vs. Graham


       "The test for the sufficiency of the evidence to
       support the judgment of conviction is whether there
       is substantial evidence to support the conviction,
       viewed in a light most favorable to the State.
       State v. Lamb (Mont. 1982), 646 P.2d 516, 39
       St.Rep. 1021. The resolution of factual matters is
       for the jury, and if there is substantial evidence
       to support the judgment, this Court must affirm the
       decision of the jury. State v. Hardy (Mont. 1980),
       604 P.2d 792, 37 St.Rep. 1. Disputed questions of
       fact and the credibility of witnesses will not be
       considered on appeal.    State v. DeGeorge (1977),
       173 Mont. 35, 566 P.2d 59."
       Furthermore, the     rule has    long been      established    in
Montana that use of circumstantial evidence is an acceptable
and often convincing method of proving criminal intent.               As
we restated in State v. Pascgo (1977), 173 Mont. 121, 126,
566 P.2d 802 citing State v. Farnes, 171 Mont. 368, 558 P.2d
        "The e l e m e n t o f f e l o n i o u s i n t e n t i n e v e r y c o n t e s t e d
        c r i m i n a l c a s e must n e c e s s a r i l y be d e t e r m i n e d from
        t h e f a c t s and c i r c u m s t a n c e s o f t h e p a r t i c u l a r c a s e ,
        t h i s f o r t h e reason t h a t criminal i n t e n t , being a
        s t a t e o f mind, i s r a r e l y s u s c e p t i b l e o f d i r e c t o r
        p o s i t i v e proof      and t h e r e f o r e must u s u a l l y be
        i n f e r r e d from t h e f a c t s t e s t i f i e d t o by w i t n e s s e s
        and         the    circumstances             as    developed            by     the
        evidence."

        Pursuant          to     the     statutory          definition           of     "Robbery"

45-5-401,        MCA,     t h e s t a t e f i l e d i t s charges of robbery a g a i n s t

t h e d e f e n d a n t b a s e d upon two a l l e g a t i o n s t h a t t h e d e f e n d a n t

"inflict[ed]            bodily      injury"        on    Bob     Lutzenhiser          while       the

d e f e n d a n t was " i n t h e c o u r s e o f committing a t h e f t . "

        "A     person          commits       the      offense         of     theft       when      he

purposefully            or     knowingly         obtains       or     exerts      un.authorized

control over property of                     t h e owner and h a s t h e p u r p o s e o f

depriving           the        owner        of        the       property."                 Section

45-6-301 (1)( a ) , MCA.

        The d e f e n d a n t    admits t h a t         there       is a possibility              the

j u r y may have c o n v i c t e d t h e d e f e n d a n t on t h e t h e o r y t h a t he

i n f l i c t e d b o d i l y i n j u r y on Bob L u t z e n h i s e r i n t h e c o u r s e o f

stealing h i s wallet.               However, t h e d e f e n d a n t a l l e g e s t h a t t h e

State      failed       in     i t s proof       as   follows:          the wallet,            found

under t h e d r i v e r ' s s e a t o f O r t e g a ' s c a r , was n o t c o n n e c t e d t o

Bob L u t z e n h i s e r ;    t h e r e was no showing t h a t t h e w a l l e t was

stolen.        Defendant a r g u e s t h e S t a t e f a i l e d t o p r o v e t h e f t and

therefore        the     case of        robbery w i l l         not     stand.         The    State

a r g u e s t h a t any f a i l u r e t o show t h a t t h e w a l l e t was s t o l e n

was h a r m l e s s e r r o r s i n c e u n d i s p u t e d e v i d e n c e e s t a b l i s h e d t h e

t h e f t o f t h e b e e r which was s u f f i c i e n t t o f u l f i l l t h e t h e f t

requirement.            I n response, t h e defendant maintains t h a t t h e

e v i d e n c e c l e a r l y shows t h a t Alan Hanson t o o k t h e b e e r from

t h e L u t z e n h i s e r s and t h e d e f e n d a n t n e v e r e x e r t e d c o n t r o l o v e r

o r p o s s e s s e d t h e six-pack         o f R a i n i e r a t any t i m e d u r i n g t h e

altercation.
        The law is clear that "the actor need not take part in
the overt act of the theft, or the actual taking, to be found
guilty" of theft.         State v. Hart, (Mont. 1981), 38 St.Rep.
133, 142,          P.2d        .    In Hart this Court affirmed the
trial court's conviction of robbery, based upon substantial
circumstantial     evidence    and     concluded:         "The    chain   of
evidence is a series of circumstances: presence, diversion,
silence, association and           flight.    These elements of the
State's proof present a formidable and unbroken chain of
facts and events.      The evidence was sufficient, and the case
properly submitted to the jury."
      Applying the same principle to the case before us, we
are convinced that the jury had more than ample substantial
evidence to conclude the defendant was guilty.                   Undisputed
evidence presented at trial established that the defendant
spent     the   afternoon   and     evening   of    the   crime     in    the
continuous company of the other four suspects, one of whom
was his cousin; that although the defendant was not the
instigator of the crime, he did nothing to disassociate
himself from the conduct of his friends, in fact, he acted in
a menacing and threatening manner by aiming martial arts
kicks close to the head of one of the victims.              Although Bob
Lutzenhiser did not directly identify defendant Ortega as one
of his assailants convincing expert testimony reveals that
the   injuries on the       face of the victim could have been
inflicted by a high-heeled boot similar to the boots the
defendant was wearing and not by a soft leather shoe like
those    Alan   Hanson wore.        Furthermore, the defendant            is
admittedly the registered owner and driver of the car in
which all five suspects were apprehended and the six-pack of
Rainier beer and the victim's wallet were discovered.
     The jury considered all the testimony and evidence in
conjunction with the defendant's version of the incident and
concluded    the   defendant   committed   the   crime.    There   was

substantial    evidence   to    support    the   jury's   conclusion.
Affirmed.




We concur:
