96-392




                                                                                 No. 96-392

                                                  IN THE SUPREME COURT OF THE STATE OF MONTANA


                                                                                  1997



                                                                    STATE OF MONTANA,

                                                              Plaintiff and Respondent,

                                                                                         v.

                                                                  PATRICK DALE NEARY,

                                                                Defendant and Appellant.



 APPEAL FROM:                   District Court of the Sixteenth Judicial District, In and for the
                                                     County of
                                     Custer, the Honorable Kenneth R. Wilson, Judge Presiding.


                                                                   COUNSEL OF RECORD:

                                                                                  For Appellant:

                                                                Terry J. Hanson, Miles City, Montana

                                                                                 For Respondent:

                                      Honorable Joseph P. Mazurek, Attorney General; Christina Goe,
                                               Assistant Attorney General, Helena, Montana

                                               Garry P. Bunke, County Attorney, Miles City, Montana




                                                                               Submitted on Briefs: June 26, 1997

                                                                               Decided: September 11, 1997

                                                                               Filed:


                                                         __________________________________________
                                                                     Clerk

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                     Chief Justice J. A. Turnage delivered the Opinion of the Court.

          A jury in the Sixteenth Judicial District Court, Custer County, found Patrick
Neary
guilty of aggravated assault. Neary appeals. We affirm.
      We restate the following two issues Neary raises on appeal:
      1.   Is the jury verdict supported by substantial evidence?
      2.   Did the District Court err when it granted the Stateþs proposed jury
instruction No. 13 and denied Nearyþs proposed weapon instruction?
BACKGROUND
      On June 7, 1995, Patrick Neary invited Victoria Haaser to his house in Miles
City,
Montana. The two spent much of the day in bed together. That afternoon, Neary
received a phone call from another woman. Haaser left, informing Neary, "Iþm
finished
with you." Later, Haaser and Neary separately visited several Miles City bars. When
the bars closed, Neary stopped to talk with Haaser after he saw her van parked
outside
Linda Merchantþs house.
      Various individuals gathered in a room above a flight of stairs leading from
Merchantþs garage to her house observed Neary and Haaser standing together on the
stairs. Donald Bair heard a "thud" and ran to investigate. He saw Haaser falling
down
the stairs as Neary backed away and headed for the garage door saying, "Iþm getting
the
hell out of here." Bair rushed down the stairs. Haaser had landed with her head on
the
floor and her feet lying up the stairs. Blood was flowing from her head, nose, and
ear.
Bair propped Haaser up, placed her over his shoulder in a "firemanþs carry," and
drove
her to the hospital.
      Bair did not see Neary holding Haaser. During cross-examination, he maintained
that Haaser was still falling when he arrived. Bair testified that when he sat
Haaser on
the stairs, her head was nowhere near a pipe which protruded from the garage wall.
Darin Ewalt heard a "loud crack." As he came to the top of the stairs, Haaser was
still
falling. He observed Neary leaving the garage, but did not see him holding Haaser at
any time.
      According to Linda Merchant, Neary and Haaser had an argument at her house
earlier the evening of June 7, 1995. After she asked them to leave, Neary and Haaser
departed separately. When Neary returned to Merchant's house after the bars closed,
Haaser agreed to speak with him, but Merchant was nervous about what might happen.
She testified:
I wanted them to come upstairs so . . . we could keep an eye on them. I
left the door open to the top of stairs into the house to where we were at,
just above them. So we could hear in case . . . it got out of hand.

. . .



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[A]fter I checked on them, I walked up . . . into my bedroom . . . and sat
down on my stool. I just barely got sat down, and I heard it. It sounded
like, I believe, a shotgun. It was just a bang.

I have a china closet in my bedroom thatþs against the far wall, the dishes
in it rattled. And thatþs when I looked and Donny Bair and Darin Ewalt
were literally falling over each other to go down and see what happened,
and thatþs when I went down.

As Merchant stood at the top of the stairs, she saw Bair attempting to sit Haaser up
on
the stairwell. Neary was standing in the garage, and Merchant yelled at him to
leave.
She did not notice whether Neary had anything in his hands.
      Shannon Dalbec, one of Nearyþs friends, testified that Neary arrived at her home
around 3:00 a.m. Neary stated Haaser had fallen, he was innocent, and "he was going
to leave town because even if he was innocent nobody would believe him." Later that
morning, Neary called Dalbec and said he was going to Canada and was going to take
a boat to Mexico. Monica Foreman testified that Neary telephoned her between 3:30
and
4:30 a.m. He stated, "I hurt Vicki really bad. Itþs my fault." Neary informed
Foreman
that he was leaving town or probably the country.
      At 7:30 a.m., Miles City police arrived at Merchantþs house. Inside her garage,
they photographed blood stains on the wall, concrete floor, and stairs. They also
searched the area for a weapon but were unable to find one.
      Due to the severity of Haaserþs injuries, she was airlifted to St. Vincent
Hospital
in Billings, Montana. Upon learning this information, Neary drove to Billings. Ella
Wood, Haaserþs mother, testified that Neary was already at St. Vincent Hospital when
she arrived at 10:00 a.m. Neary told her a friend had called him and that was how he
learned about the accident. Haaserþs sister was also at the hospital. When she
asked
Neary what happened, he responded that he did not know. Neary explained he was not
at Merchantþs house when the accident occurred and that a friend had called him.
Then
he stated, "This is all my fault." Donald Wood, Haaserþs father, confirmed that
Neary
claimed not to know anything about how Haaser was injured.
      Billings police arrested Neary at St. Vincent Hospital and seized his blood-
stained
clothes. At trial, the Stateþs forensic scientist testified that the blood on
Nearyþs shirt and
pants was not his but belonged to the same type as Haaserþs.
      Neary testified that he stopped at Merchantþs house because he wanted Haaser to
leave, claiming to be concerned about her children and career. Haaser was standing
on
the steps with her back leaning against the wall near a pipe. Neary started walking
away
from her. Haaser fell, and when Neary turned around, she was lying on the floor.
Neary knelt beside Haaser and turned her over on her back. Bair "shouldered" him out
of the way, and Merchant yelled at him to leave.

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      Neary denied hitting Haaser on June 8. He claimed his statements to friends and
Haaserþs family were either taken out of context or were lies. During cross-
examination,
he stated that when he examined Haaser, he did not observe anything stuck to her
head.
He further claimed that he received blood stains on his clothing when he knelt down
to
examine Haaser.
      As a result of her injuries, Haaser has no memory of the incident and suffers
long-term brain damage. She testified that prior to the incident, however, Neary
had not
shown any concern for her children or her career.
      At trial, two physicians testified regarding the extent of Haaserþs injuries.
Dr.
Fred McMurry, Haaserþs attending neurosurgeon and the Stateþs medical expert,
testified
that Haaser suffered a subdural hematoma and an extradural hematoma on the right and
left sides of her head. She also received a fracture to the left side of her head
and a scalp
injury. Dr. McMurry testified that the injury, "a round hole in the scalp going
right
down to bone," was probably caused by a blow to the side of the head. It would be
unlikely for a fall to cause such an injury unless it was from a considerable
distance onto
an object.
      Dr. Scott Callaghan, a neurologist and Nearyþs medical expert, testified by
deposition that Haaserþs injuries would not be expected to result from a punch from a
bare fist but could have been caused by a fall from a considerable distance and
hitting an
object on the floor. Her scalp wound could not have been caused by hitting a flat
surface. Dr. Callaghan did not disagree with Dr. McMurryþs opinion that Haaserþs
injury could also have been caused by a blow to the side of the head with an object.
According to Dr. Callaghan, Haaser had a blood alcohol level of .15, tested positive
for
amphetamines, and was taking a prescription medication. This combination would cause
her to have a propensity to fall.
      On June 26, 1995, the State charged Neary with attempted deliberate homicide,
or in the alternative, aggravated assault. The information stated:
[O]n or about June 8, 1995, in Custer County, Montana, . . . Patrick Neary
. . . did commit the offense of attempted deliberate homicide, a felony, as
specified in section 45-4-103(1) and 45-5-102(1)(a) . . . or, in the
alternative, aggravated assault, a felony, as specified in section 45-5-
202(1)[.]

The State alleged the facts constituting the offense of aggravated assault as:
Patrick Neary . . . purposely or knowingly caused serious bodily injury to
Victoria Haaser, by striking her with some type of blunt weapon, on the left
side of her head, just above the ear, with enough force to cause trauma to
the left side of the skull with right subdural hematoma.

          At the close of the Stateþs case-in-chief, Neary moved for a directed verdict
or to

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dismiss the information based on insufficient evidence. The court took his motion
under
advisement. At the conclusion of the case, Neary again moved for a directed verdict
and
to dismiss the information. The court granted a directed verdict on the charge of
attempted deliberate homicide but concluded there was sufficient evidence for the
charge
of aggravated assault to go to the jury.
      During settlement of jury instructions, Neary objected to the Stateþs proposed
instruction No. 13 because it stated "caused serious bodily injury" but did not
include that
the serious bodily injury was caused by a weapon. Neary requested the addition of
the
words "with a weapon" to the Stateþs proposed instruction No. 13. The court
overruled
the objection and gave the Stateþs proposed instruction No. 13.
      A jury found Neary guilty of aggravated assault, and the District Court
sentenced
him to twelve years at the Montana State Prison with seven years suspended. Neary
appeals.
DISCUSSION
      1.   Is the jury verdict supported by substantial evidence?
       The standard of review of sufficiency of the evidence is whether, after
reviewing
the evidence in a 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.
Bower (1992), 254 Mont. 1, 6, 833 P.2d 1106, 1110.    The credibility of witnesses and
the weight to be given to their trial testimony are determined by the trier of fact,
and if
events are capable of different interpretations, the trier of fact determines which
is the
most reasonable. State v. Ahmed (1996), 278 Mont. 200, 212, 924 P.2d, 679, 686;
State
v. Brogan (1993), 261 Mont. 79, 87, 862 P.2d 19, 24.
      Neary argues this is a circumstantial evidence case and the evidence does not
support the verdict. He contends, as he did at trial, that Haaser lost her balance,
fell
down the stairs, and struck the floor where there was a beer bottle cap which removed
a piece of her scalp. When Haaser was taken to the hospital, the bottle cap fell
from her
head. Neary relies on State v. Lucero (1984), 214 Mont. 334, 693 P.2d 511, to argue
that when circumstantial evidence is susceptible to two reasonable interpretations,
one
pointing to innocence and one pointing to guilt, a jury must adopt the
interpretation that
points to innocence.
      In Lucero, we concluded that absent affirmative evidence to the contrary, the
jury
did not err as a matter of law in finding that the defendantþs interpretation of the
circumstantial evidence was not reasonable. Lucero, 693 P.2d at 513-14. At trial
Neary

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did not produce a bottle cap or any physical evidence of Haaserþs missing hair or
scalp.
He testified that he examined Haaser and did not see anything stuck to her head.
Neary
did not provide affirmative evidence that Haaser fell on a bottle cap, or other
similar
object, with such force to cause her injuries. His bottle cap theory was nothing
more
than an alternative theory for the juryþs consideration.
      The State argues the verdict against Neary is supported by substantial
evidence.
We agree. Neary and Haaser were involved in a sexual relationship and argued on June
7. Merchant testified that she was afraid to leave the two alone together. Three
witnesses at Merchantþs house testified they heard a loud noise and ran to the
stairs to
investigate. When they arrived, Neary was not touching Haaser, but was backing away
towards the garage door. This testimony is inconsistent with Nearyþs explanation
that he received blood on his clothing because he kneeled to examine Haaser. A
forensic
expert identified the blood type on Nearyþs pants and shirt as Haaserþs. Blood
spatters
covered the wall, stairs, and floor near where Neary and Haaser were standing. Neary
left Merchantþs house immediately after Bair, Ewalt, and Merchant arrived. The
Stateþs
medical expert testified it would be unlikely that Haaserþs injuries were caused by
a fall
onto a flat surface.
      Nearyþs statements and actions following the incident also support the juryþs
verdict. After leaving Merchantþs house, Neary arrived at Dalbecþs home and informed
her that he was leaving town. Later, he called her and said he was going to Canada
and
would take a boat to Mexico. Foreman testified that Neary called and told her that
he
had hurt Haaser badly, that it was his fault, and that he was going to leave town or
probably the country. Although Neary admitted being at Merchantþs house, Haaserþs
family testified that Neary did not know what happened to Haaser, that he was not
there,
and that a friend had called him.Neary relies on State v. Gommenginger (1990),
242 Mont. 265, 790 P.2d 455, to argue that his statements made to various persons
after
the incident as subsequent inconsistent statements cannot be the sole substantive
evidence
upon which a jury should be allowed to base guilt. Gommenginger is distinguishable
from this case. Gommenginger involved testimony from a drug informant who had a
motive to lie. Here, the Stateþs witnesses had no identifiable motive to lie. In
Gommenginger, the court restricted cross-examination of the informant. Neary was
free
to cross-examine and impeach the Stateþs witnesses, which he attempted to do.
      Bair's only prior inconsistent statement in this case was his testimony from the
hearing on Nearyþs motion to dismiss. At trial, Neary attempted to impeach Bair by
using his previous testimony. Bair explained the inconsistencies and the jury was
free

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to weigh Bairþs testimony.
      Moreover, Nearyþs subsequent inconsistent statements were not the only evidence
upon which the jury could base Nearyþs guilt. Nearyþs acts before, during, and
after the
incident would allow a jury to find him guilty. We conclude that Nearyþs subsequent
inconsistent statements were not the sole substantive evidence upon which a jury
could
have found him guilty of aggravated assault.
      In further support of his argument that the verdict is unsupported by the
evidence,
Neary relies on State v. Gould (1985), 216 Mont. 455, 466, 704 P.2d 20, 28, to argue
that his out-of-court statements do not meet the requisite trustworthiness as
competent
admissions against interest. Gould differs from the present case. Gould moved to
suppress his pretrial admission pursuant to    46-13-301, MCA (1981). Neary did not
move to suppress his out-of-court statements, and he did not object to the admission
of
his statements at trial. We will not review issues which have not been properly
preserved
for appeal. See     46-20-104(2), MCA; State v. Arlington (1994), 265 Mont. 127, 151,
875 P.2d 307, 321.
      When the evidence is viewed in a light most favorable to the prosecution, the
jury,
as a rational trier of fact, could reasonably have concluded that Neary purposely or
knowingly caused Haaser serious bodily injury. We hold that the verdict convicting
Neary of aggravated assault is supported by substantial evidence.
      2. Did the District Court err when it granted the Stateþs proposed jury
instruction
No. 13 and denied Nearyþs proposed weapon instruction?

     We review jury instructions in a criminal case to determine whether the
instructions, as a whole, fully and fairly instruct the jury on the law applicable
to the
case. State v. Leyba (1996), 276 Mont. 45, 51, 915 P.2d 794, 797.
     Section 45-5-202(1), MCA (1985), provides, "(1) A person commits the offense
of aggravated assault if he purposely or knowingly causes serious bodily injury to
another." Section 45-5-202(2), MCA (1985), provides, in relevant part, "(2) A person
commits the offense of felony assault if he purposely or knowingly causes: (a) bodily
injury to another with a weapon[.]"
     The Stateþs proposed instruction No. 13, adopted by the court, stated:
To convict the defendant of aggravated assault, the State must prove the
following elements:

          1.    That the defendant caused serious bodily injury to Vicki Haaser,
and
     2. That the defendant acted purposely or knowingly.
Neary requested the addition of the words "with a weapon" to the above instruction.
     Neary argues that the District Court erred when it granted the Stateþs proposed
instruction No. 13 and refused his proposed weapon instruction because the
information
alleged that he caused Haaser serious bodily injury using a weapon.
     The State charged Neary with aggravated assault, not felony assault. Felony

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assault requires the use of a weapon; aggravated assault does not. Cf.    45-5-202
(2),
MCA (1985) and   45-5-202(1), MCA (1985). See also Arlington, 875 P.2d at 307.
     The information charged Neary with attempted deliberate homicide, or in the
alternative, aggravated assault. Under the section "facts constituting the
offense," the
information stated:
Neary . . . purposely or knowingly caused serious bodily injury to Victoria
Haaser, by striking her with some type of blunt weapon, on the left side of
her head, just above the ear, with enough force to cause trauma to the left
side of the skull with right subdural hematoma.

       The District Courtþs jury instruction No. 13 stated the elements of aggravated
assault as they are enumerated in    45-5-202(1), MCA (1985). Because    45-5-202(1),
MCA (1985), does not require that serious bodily injury be caused by a weapon, the
jury
was not required to find that Neary used a weapon to find him guilty of aggravated
assault.
      Neary maintains he was prevented from preparing an adequate defense because
instruction No. 13 does not require the use of a weapon, but the facts in the
information
alleged that he used a weapon. He relies on State v. Later (1993), 260 Mont. 363,
860
P.2d 135. In Later, the State charged the defendant with misdemeanor official
misconduct. During settlement of jury instructions, the State conceded that it had
charged
the defendant under the incorrect statute. The State offered an alternative
instruction
charging the defendant with violation of another statute. We reversed, reasoning
that the
function of an information is to notify the defendant of the offense charged, thereby
giving him the opportunity to defend. Later, 860 P.2d at 137, citing State v. Tropf
(1975), 166 Mont. 79, 88, 530 P.2d 1158, 1163.
      Nearyþs reliance on Later is misplaced. Unlike in Later, the State charged
Neary
with aggravated assault, which was contained in the information, and the District
Court
instructed the jury using the same language taken from the aggravated assault statute
contained at    45-5-202(1), MCA (1985). Notwithstanding the recital of facts
contained
in the information, Neary knew with what offense he was being charged and its
elements.
The jury had to find that Neary purposely or knowingly caused serious bodily injury
to
Haaser in order to convict him of aggravated assault. We conclude that Neary was not
prevented from preparing an adequate defense based on the courtþs instruction of the
elements of aggravated assault.
      The cases cited by Neary from other states are also distinguishable from the
facts
of this case. In State v. Jones (Kan. 1995), 896 P.2d 1077, the trial court added
another
type of intent to the jury instruction which was not included in the information. In

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Atterberry v. State (Okla. Crim. App. 1986), 731 P.2d 420, the trial court broadened
the
definition of child abuse by adding elements not contained in the statute. In State
v.
DeSantos (N.M. 1976), 553 P.2d 1265, the court erred by adding instructions on
felony
murder and depraved mind murder when the evidence did not support the instruction.
     We conclude that the District Courtþs jury instructions, as a whole, fully and
fairly
presented the applicable law on aggravated assault. Nearyþs proposed weapon
instruction
was an inaccurate statement of the law and was an attempt to broaden the statutory
definition of aggravated assault. We hold that the District Court did not abuse its
discretion when it adopted the Stateþs proposed instruction No. 13 and denied Nearyþs
proposed weapon instruction.
     Affirmed.

                                                                       /S/        J. A.         TURNAGE


We concur:

/S/       JAMES C. NELSON
/S/       KARLA M. GRAY
/S/       WILLIAM E. HUNT, SR.
/S/       JIM REGNIER




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