96-623




                                                                                 No. 96-623

                                                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                                 1997



                                                 CITY OF HAMILTON, STATE OF MONTANA,

                                                                      Plaintiff and Respondent,

                                                                                         v.

                                                                       JOSEPH MAVROS,

                                                                       Defendant and Appellant.




              APPEAL FROM:                    District Court of the Twenty-First Judicial District,
                                                        In and for the County of Ravalli,
                                               The Honorable Jeffrey H. Langton, Judge presiding.


                                                                   COUNSEL OF RECORD:

                                                                                 For Appellant:

                                                                  Judith A. Loring, Attorney at Law,
                                                                        Stevensville, Montana

                                                                                For Respondent:

                                                        Hon. Joseph P. Mazurek, Attorney General;
                                                     Cregg W. Coughlin, Assistant Attorney General;
                                                                     Helena, Montana

                                                         T. Geoffrey Mahar, Hamilton City Attorney,
                                                                     Hamilton, Montana



                                                                               Submitted on Briefs: May 29, 1997

                                                                               Decided:               July 17, 1997
                                                                               Filed:


                                                         __________________________________________

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                                                                                          Clerk

                             Justice Jim Regnier delivered the Opinion of the Court.

      Joseph Mavros was charged by amended complaint in the Hamilton City Court
with five misdemeanor counts; including assault, domestic abuse, reckless driving,
and
improper license plates, on March 20, 1996. He was convicted of reckless driving and
two counts of assault. Mavros appealed this determination to the Twenty-First
Judicial
District Court, Ravalli County.    The District Court heard the case de novo pursuant
to
   25-33-301, MCA. Following a jury trial, Mavros was again found guilty of reckless
driving and two counts of assault. Mavros appeals from the sentence and judgment of
the District Court. We reverse.
      The issues on appeal are:
      1.   Did the District Court abuse its discretion when it allowed a Hamilton
County Municipal Court Judge to testify from her recollection as to the testimony of
a
material witness?
      2.   Was sufficient evidence presented at trial to convict Mavros of assault
against Janet Ohl?
      3.   Is Montana's assault statute unconstitutionally overbroad or vague, as
applied to this case?
                        FACTUAL BACKGROUND
      On the afternoon of August 7, 1995, Janet Ohl was driving in Hamilton. Wendy
Clary was in the front passenger seat. Stephanie Hughes, Clary's eleven-year-old
niece,
and Ohl's toddler son were in the back seat. As Ohl waited at an intersection to
make
a turn, Joe Mavros, her then-estranged common-law husband, pulled his car to a halt
in
front of Ohl's car and slammed on the brakes. At this point, Mavros either hit the
front
of Ohl's car and knocked it backward or Ohl became startled when she saw Mavros,
popped her clutch, and hit Mavros's car.
      Mavros got out of his car and attempted to open the driver's door of Ohl's
vehicle.
He was angry and exchanged swear words with Ohl. As he argued with Ohl, he stood
against the back door and prevented Hughes from exiting the car. As Hughes was
crying,
Mavros laughed and mocked her. Mavros demanded that Ohl return his key. Ohl threw
a key out of the car and Mavros left to retrieve it. At this time, the police
arrived and
Mavros was arrested.
      On March 20, 1996, Mavros was charged by a second amended complaint of the
crimes of domestic abuse in violation of    45-5-206, MCA, a misdemeanor, and, in the
alternative, with the crime of assault in violation of    45-5-201, MCA, a
misdemeanor,
as against Janet Ohl; and two additional counts of assault in violation of    45-5-
201,
MCA, as against Wendy Clary and Stephanie Hughes; improper license plates in

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violation
of    61-3-301, MCA, and reckless driving in violation of   61-8-301, MCA.
      Mavros pled not guilty. He was tried before a jury in the Hamilton City Court
with Judge Martha Bethel presiding. He was found not guilty of domestic abuse,
assault
against Hughes, and the improper license plate charge. He was convicted of reckless
driving and the two counts of assault against Ohl and Clary. He appealed to the
District
Court the jury's finding of guilty on these charges and his sentence.
      The Twenty-First Judicial District Court, Ravalli County, heard the trial de
novo
pursuant to    25-33-301, MCA, before a jury. At this trial, Wendy Clary was
unavailable to testify in court. The District Court, over Mavros's objection,
allowed
Judge Bethel to testify from her recollection and notes taken in City Court as to
Clary's
testimony regarding the incident and the alleged assault.
      Mavros was found guilty of assault as against Janet Ohl, assault as against
Wendy
Clary, and the reckless driving charge. Mavros appeals from the judgment and
sentence
for the two assault convictions.
                              ISSUE 1
      Did the District Court abuse its discretion when it allowed a Hamilton County
Municipal Court Judge to testify from her recollection as to the testimony of a
material
witness?
      The standard of review for evidentiary rulings is whether the district court
abused
its discretion. State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380
(citing
State v. Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054). The district court
has
broad discretion to determine if evidence is admissible. Accordingly, absent an
abuse of
discretion, we will not overturn the district court's determination. Passama, 261
Mont.
at 341, 863 P.2d at 380.
      Mavros argues that Judge Bethel's testimony was hearsay and should have been
excluded at trial. The State counters that the testimony of Judge Bethel was
allowable
as an exception to the hearsay rule set forth in Rule 804(b)(1)(B), M.R.Evid. The
State
contends, and Mavros does not dispute, that Wendy Clary was unavailable for purposes
of Rule 804, M.R.Evid., in the District Court proceeding.
      The District Court allowed Judge Bethel to testify as to what Clary said during
the
City Court trial pursuant to Rule 804, M.R.Evid., which states, in relevant part:
           (b) Hearsay exceptions. The following are not excluded by the
      hearsay rule if the declarant is unavailable as a witness:
           (1) Former testimony. Testimony given as a witness at another
      hearing of the same or a different proceeding, or in a deposition taken in

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          compliance with law in the course of the same or another proceeding . . .
          and (B) in criminal actions and proceedings, if the party against whom the
          testimony is now offered had an opportunity and similar motive to develop
          the testimony by direct, cross, and redirect examination.

Rule 804(b)(1)(B), M.R.Evid. Judge Bethel's testimony at trial as to Wendy Clary's
feelings during the incident with Mavros was based on statements Clary made while
testifying before Judge Bethel in the City Court proceedings. Judge Bethel had no
personal knowledge of the alleged incident which occurred approximately eight months
before the City Court trial.
      This Court determines that the testimony of Judge Bethel constituted
inadmissible
hearsay. Since Clary's previous testimony was in the City Court proceedings, there
was
no transcript available which would have provided a verbatim record of her direct and
cross-examination. The State offered Clary's testimony, over the objection of the
defendant, through Judge Bethel's testimony in the District Court. This was
essentially
Judge Bethel's recollection of Clary's testimony in the City Court. The error in this
procedure is clearly evident when reviewing the record in this case. On numerous
occasions, and in regard to material facts, Judge Bethel either could not recall or
had no
notes to refresh her recollection as to how Clary testified to certain questions
regarding
the incident in the City Court proceeding.    Although Mavros had an opportunity to
cross-examine Clary in the City Court, he did not have that opportunity in the
District
Court. Obviously Mavros could only cross-examine Judge Bethel on her recollection of
Clary's testimony.
      Former testimony is a recognized exception to the hearsay rule and is codified
in
our Rules of Evidence at Rule 804(b)(1). The rationale behind the exception is that
there
is a guarantee of trustworthiness at the time the testimony is given, namely, the
witness
is under oath and subject to cross-examination. State v. Bouldin (1969), 153 Mont.
276,
282, 456 P.2d 830, 833. This guarantee of trustworthiness is lost when prior
testimony
is represented to the jury, as was done here, without the benefit of a transcript or
other
recording and through only the memory of a person who was present in the former
proceeding. The District Court in this instance did not admit the prior testimony,
but
admitted Judge Bethel's recollection of the prior testimony.
      Here, the testimony was admitted, not through a transcript which accurately
repeated the direct and cross-examination before the District Court jury, but through
another person's memory. This was error. The prior testimony of a witness is only
an
exception to hearsay under Rule 804(b)(1), M.R.Evid., when that testimony is offered
through the use of a transcript or some other recording device which accurately
presents

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a verbatim record of the testimony from the earlier proceeding.
      We hold that the testimony of Judge Bethel as to Wendy Clary's testimony in the
City Court proceedings about the incident with Mavros was inadmissible hearsay and
the
District Court abused its discretion in admitting this testimony. Without any
testimony
from the complaining witness, or any other evidence from the trial, the assault
conviction
as against Clary fails.
                              ISSUE 2
      Was sufficient evidence presented at trial to convict Mavros of assault against
Janet
Ohl?
      In criminal appeals, this Court reviews the sufficiency of the evidence to
determine
whether, after viewing the evidence in the light most favorable to the prosecution,
any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. State v. Richards (1995), 274 Mont. 180, 184, 906 P.2d 222, 224.
      Mavros argues that sufficient evidence in the record does not exist to support
the
convictions for assault. Under     45-5-201, MCA, a person commits assault if he:
      (a) purposely or knowingly causes bodily injury to another;
      (b) negligently causes bodily injury to another with a weapon;
      (c) purposely or knowingly makes physical contact of an insulting
or provoking nature with any individual; or
      (d) purposely or knowingly causes reasonable apprehension of
bodily harm in another.

      First, the State relies on State v. Walsh (Mont. 1997), 931 P.2d 42, 54 St. Rep.
64, for the proposition that because Mavros did not move the District Court, either
at the
close of the prosecution's case or at the close of all the evidence, for a judgment
of
acquittal because the evidence was insufficient to go to the jury on the charges of
assault
against Ohl, this Court should decline to consider this claim on appeal. In Walsh,
this
Court declined to consider Walsh's challenge to charges of accountability "because
Walsh
failed to argue at any time prior to filing his brief on appeal that the evidence was
insufficient to support the verdict on accountability charges." Walsh, 931 P.2d at
45.
In the alternative, if Mavros has not waived the claim, the State contends that
there was
sufficient evidence presented at trial for a jury to find that Mavros was guilty of
assault.
      This Court recently overruled Walsh insofar as it bars a claim on appeal of
insufficiency of the evidence to support a verdict for failure to raise the issue in
the
district court. State v. Granby (Mont. 1997), 54 St. Rep. 558. In Granby, we
determined that the Legislature intended that a reviewing court have the power to

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provide
a comprehensive review of the district court proceedings for sufficiency of the
evidence
without the necessity of a motion challenging the sufficiency of the evidence in the
district
court. Granby, 54 St. Rep. at 560. Accordingly, Mavros is not barred from raising a
claim of insufficiency of the evidence to support his conviction on the assault
charge
against Ohl on appeal.
     The only way that Mavros's conviction can be upheld is if there is sufficient
evidence that Ohl had a "reasonable apprehension of bodily injury." Section 45-5-201
(d),
MCA.
     Mavros contends that the evidence at trial was not sufficient to sustain his
conviction of assault against Ohl because there was no physical contact between him
and
Ohl, and Ohl had no reasonable apprehension of injury. He maintains that this
incident
involved a verbal yelling match between two people who had an intimate relationship
and
which was created by Ohl by her actions several days before in trashing and
burglarizing
Mavros's home and retaining his keys.
     The evidence at trial showed that Mavros drove his car in a reckless manner into
the wrong lane of traffic and slammed on his brakes to stop his car in front of Ohl's
vehicle, which was stopped at an intersection. Two witnesses testified that after the
collision, Mavros got out of his car, jumped over other cars in an attempt to get at
Ohl,
and yelled profanities at Ohl. However, the testimony at trial was clear that
Mavros did
not physically strike or touch Ohl. The act of yelling obscenities at someone does
not
constitute an assault unless it creates reasonable apprehension of bodily injury in
that
person. Section 45-5-201(d), MCA.
     At trial, Ohl testified that she was only startled when Mavros drove his
vehicle up
in front of her vehicle stopped at the intersection. She stated that she
anticipated that
some sort of confrontation would take place between her and Mavros because she had
trashed and burglarized his home two days before the incident in order to provoke him
to seek her out and confront her. Although she was aware of the upcoming
confrontation
before it happened, that awareness does not preclude Ohl from being afraid of bodily
injury; however, she also testified that she was not scared or afraid of Mavros
during the
entire incident. She stated that she was not afraid of bodily injury at all during
the time
of the incident. Ohl testified to this based on previous incidents between her and
Mavros
during their relationship.
     This Court is aware that Ohl was a reluctant witness against Mavros. After the

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incident, Mavros and Ohl reconciled. Ohl testified that she and Mavros considered
themselves common-law husband and wife. At the time of trial, Ohl and Mavros were
living together and raising their child. However, no evidence was offered at trial
to show
that Mavros had caused a reasonable apprehension of injury in Ohl to support a claim
of
assault against her.
       After viewing the evidence in the light most favorable to the prosecution, we
hold
that the evidence presented is not sufficient to support the conviction for assault
against
Ohl, and Mavros's conviction on this charge is reversed.
                              ISSUE 3
      Is Montana's assault statute unconstitutionally overbroad or vague as applied
to this
case?
      Because this Court has reversed both convictions for assault against Mavros, we
decline to address his argument that Montana's assault statute is unconstitutional,
both on
its face and as applied to him, because it violates his right to free speech.
      In conclusion, we hold that the District Court abused its discretion in
admitting
Judge Bethel's testimony regarding Clary's testimony in the City Court proceeding.
We
also hold that there was not sufficient evidence to convict Mavros of assault
against Ohl.
Therefore, Mavros's convictions for assault against Ohl and Clary are reversed. His
conviction for reckless driving was not appealed and still stands. This case is
remanded
to the District Court for proceedings consistent with this opinion.

                                                            /S/        JIM REGNIER

We Concur:

/S/       J. A. TURNAGE
/S/       JAMES C. NELSON
/S/       WILLIAM E. HUNT, SR.
/S/       KARLA M. GRAY
/S/       TERRY N. TRIEWEILER
/S/       W. WILLIAM LEAPHART




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