                                           No. 04-713

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 300N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

JAMES MICHAEL WARREN,

              Defendant and Appellant.



APPEAL FROM:         District Court of the First Judicial District,
                     In and for the County of Lewis and Clark, Cause No. ADC 2003-312,
                     The Honorable Dorothy McCarter, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Martin J. Eveland and Jeremy Gersovitz, Assistant Public Defenders,
                     Helena, Montana

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Joslyn M. Hunt, Assistant
                     Attorney General, Helena, Montana

                     Leo Gallagher, Lewis and Clark County Attorney; Carolyn Clemens
                     and Tara Harris, Deputy County Attorneys, Helena, Montana


                                  Submitted on Briefs: September 20, 2005

                                              Decided: November 29, 2005
Filed:


                     __________________________________________
                                       Clerk
Justice John Warner delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be cited

as precedent. Its case title, Supreme Court cause number and disposition shall be included

in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and

Montana Reports.

¶2     James Michael Warren (Warren) appeals from his jury conviction in the First Judicial

District Court, Lewis and Clark County, of two counts of assault with a weapon, in violation

of § 45-5-213(1)(b), MCA, and one count of criminal mischief, in violation of § 45-6-101,

MCA. Warren raises two issues on appeal. First, Warren alleges that he was denied his

right to a fair trial because discussion of the later dismissed charge of carrying a concealed

weapon occurred during voir dire. Second, Warren alleges that the District Court erred in

not dismissing the charge of criminal mischief because the State did not elicit testimony from

anyone that Warren inflicted damage to the victim’s property without consent. We affirm

the judgment of the District Court.

¶3     Warren moved for a mistrial on the basis of the discussion of the dismissed charge

of carrying a concealed weapon during voir dire. Warren claimed prejudice from the

discussion of the concealed weapons charge that was dismissed during the trial. The District

Court denied this motion, noting that a curative instruction was given and that the final

instructions did not mention that charge.

¶4     After the State finished presenting its case, Warren moved for a directed verdict as

to the criminal mischief charge. Warren argued that the State had failed to show that the

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owner did not consent to the damage done to the trailer, a necessary element of the crime.

The District Court denied this motion as well.

¶5     We have determined to decide this case according to Section I, Paragraph 3(d) of our

1996 Internal Operating Rules, as amended in 2003, which provides for memorandum

opinions. This Court has previously explained that a District Court’s determination of

whether to grant a motion for a mistrial must be based on whether the defendant has been

denied a fair and impartial trial, and we review the District Court’s determination for an

abuse of discretion. State v. Kennedy, 2004 MT 53, ¶ 14, 320 Mont. 161, ¶ 14, 85 P.3d

1279, ¶ 14. This Court reviews a District Court’s denial of a motion for directed verdict in

a criminal case for an abuse of discretion, and no abuse of discretion results where sufficient

evidence exists for the trier of fact to find the elements of the charged offense beyond a

reasonable doubt. State v. Grindheim, 2004 MT 311, ¶ 16, 323 Mont. 519, ¶ 16, 101 P.3d

267, ¶ 16.

¶6     The Court concludes that the curative instruction offered by the District Court

sufficiently cured any possible prejudice. As the other three charges dealt with Warren’s use

of an axe, rather than a concealed knife, we fail to see how Warren could have suffered

prejudice from the voir dire discussion. Finally, Warren provides no showing of prejudice.

¶7     In arguing that the criminal mischief charge had to be dismissed, Warren makes much

of the fact that the owner of the trailer, while testifying, never mentioned that she did not

consent to Warren causing damage to her trailer. While this point lacks direct evidence,

there is plenty of circumstantial evidence, and this Court has previously explained that “[a]

criminal conviction may be based entirely on circumstantial evidence.” State v. Field, 2005

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MT 181, ¶ 18, 328 Mont. 26, ¶ 18, 116 P.3d 813, ¶ 18 (quoting State v. Vukasin, 2003 MT

230, ¶ 20, 317 Mont. 204, ¶ 20, 75 P.3d 1284, ¶ 20). In the present case, there was

testimony that the owner of the damaged trailer heard banging on the night of the incident

which woke her up, the damage caused to the trailer was consistent with the use of an axe,

multiple people saw Warren carrying the axe on the night of the incident, and the axe was

found hanging from a window of the trailer. This evidence connects Warren to the axe,

suggests that the axe caused the damage, and suggests that the owner of the trailer did not

consent to the damage. Also, had the owner consented to having someone chop up the side

of her trailer with an axe, she likely would not have felt the need to call her daughter, who

lived close by, to try and figure out what was going on. Substantial circumstantial evidence

suggests that the damage occurred without the owner’s consent, making it possible for the

jury to find beyond a reasonable doubt that the owner did not consent to the damage.

¶8     We affirm the judgment of the District Court.



                                                       /S/ JOHN WARNER


We Concur:

/S/ KARLA M. GRAY
/S/ BRIAN MORRIS
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




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