01-397 Opinion

                                                                    No. 01-397

                             IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                  2002 MT 44N



                                                        STATE OF MONTANA,

                                                           Plaintiff and Respondent,

                                                                           v.

                                                      CYNTHIA HENDERSON,

                                                           Defendant and Appellant.




                            APPEAL FROM:            District Court of the Fifth Judicial District,
                                                  In and for the County of Jefferson,
                                            The Honorable Frank M. Davis, Judge presiding.


                                                       COUNSEL OF RECORD:

                                                                   For Appellant:

                                          John K. Kurtz; Kurtz Law Office, Helena, Montana

                                                                  For Respondent:

                                         Hon. Mike McGrath, Attorney General; Ilka Becker,
                                           Assistant Attorney General, Helena, Montana

                                         Valerie Wilson, Jefferson County Attorney, Boulder,
                                                               Montana



                                                           Submitted on Briefs: January 17, 2002

                                                                      Decided: March 12, 2002
                                                                      Filed:


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                                          __________________________________________
                                                          Clerk




Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the
following decision shall not be cited as precedent. It shall be filed as a public document with the Clerk
of the Supreme Court and shall be reported by case title, Supreme Court cause number and result to the
State Reporter Publishing Company and to West Group in the quarterly table of noncitable cases issued
by this Court.

¶2 Cynthia Henderson appeals from the Findings, Verdict, Judgment and Sentence entered by the Fifth
Judicial District Court, Jefferson County, finding her guilty of three counts of misdemeanor assault. We
affirm.

¶3    Henderson presents the following issues for review:

¶4 1. Did the State fail to prove Henderson’s guilt beyond a reasonable doubt, thereby requiring her
acquittal on the three misdemeanor assault charges?
¶5 2. Did the District Court err in basing Henderson’s conviction solely on unreliable prior
inconsistent statements by the children?

                                                              BACKGROUND

¶6 Melissa, Kyler, Kelly, and Mista Ward are the children of Rhonda and Lynn Ward. Rhonda and
Lynn separated in the fall of 1998, and Rhonda subsequently moved out of the family home and into
Henderson’s residence. In January of 1999, Kelly and Mista began living with their mother in
Henderson’s home. In March of 1999, after Lynn overdosed on drugs and was hospitalized, Kyler also
moved into the Henderson residence with his mother and sisters. Kelly subsequently moved back to the
family home with Lynn, but regularly visited her mother and siblings at Henderson’s home.

¶7 In January of 2000, after Kyler told Lynn that Henderson had abused him and his sisters, Lynn
brought Kyler into the Jefferson County Sheriff’s office to swear out a complaint against Henderson.
Kyler told Deputy Sheriff Robert Gleich that Henderson threatened and beat the Ward children on
numerous occasions while they were living in her home. Specifically, Kyler stated that 1) between June
and December of 1999, he intervened in a fight between Henderson and Rhonda during which
Henderson pushed him on a couch and pulled his hair; 2) in July of 1999, Henderson spit on his sister
Kelly and called her a vulgar name; and 3) between June and December of 1999, Henderson threatened
Kyler, Mista and Kelly with a board. Kyler made several other serious allegations. Kelly and Mista also


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gave statements to Deputy Sheriff Craig Doolittle alleging Henderson had spit on Kelly, called her a
vulgar name and threatened her with a board. Henderson subsequently was arrested.

¶8 The State of Montana charged Henderson with felony assault with a weapon, two counts of felony
assault, felony assault on a minor, and four counts of misdemeanor assault. Henderson pled not guilty.

¶9 Prior to trial, Henderson’s attorney interviewed Kyler with Rhonda’s consent and cooperation.
Kyler reiterated some of the statements he had made to law enforcement. Several of Kyler’s statements,
however, were inconsistent with his earlier statements.

¶10 In light of Kyler’s later statements, the State subsequently amended the information against
Henderson to five counts: 1) felony criminal endangerment based on an alleged firing of a handgun near
two of the children; 2) misdemeanor endangering the welfare of children based on allegations
Henderson threatened to slit her own throat and cut her wrists in front of the children; and 3) three
counts of misdemeanor assault, based on allegations she knocked Kyler down and pulled his hair, spit on
Kelly and threatened to strike Kelly with a board. The District Court entered its Findings, Verdict,
Judgment and Sentence on November 20, 2000. The District Court acquitted Henderson of felony
criminal endangerment and misdemeanor endangering the welfare of children, but convicted her of the
three misdemeanor assault offenses. Henderson appeals.

                                                       STANDARD OF REVIEW

¶11 We review the sufficiency of evidence presented at trial 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 offense beyond a reasonable doubt. State v. Duffy, 2000 MT 186, ¶ 50, 300
Mont. 381, ¶ 50, 6 P.3d 453, ¶ 50 (citation omitted).

                                                                DISCUSSION

¶12 1. Did the State fail to prove Henderson’s guilt beyond a reasonable doubt, thereby requiring her
acquittal on the three misdemeanor assault charges?

¶13 Henderson argues she presented substantial evidence at trial creating reasonable doubt that she
committed the misdemeanor assaults. In this regard, she advances testimony by Rhonda and also from
the children’s counselors that Kelly and Mista are not always reliable witnesses. The record, however,
also contains testimony from the victim children regarding the assaults and from the Deputy Sheriff that
investigated the allegations against Henderson. When presented with conflicting testimony, the finder of
fact–here, the District Court–must determine which to believe. See State v. Lopez, 2001 MT 97, ¶ 26,
305 Mont. 218, ¶ 26, 26 P.3d 745, ¶ 26 (citation omitted). Further, we will not disturb disputed
questions of fact and credibility on appeal. See State v. Doyle, 1998 MT 195, ¶ 18, 290 Mont. 287, ¶ 18,
963 P.2d 1255, ¶ 18 (citation omitted). Viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found the essential elements of the misdemeanor assaults
beyond a reasonable doubt, and the District Court did so here.



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¶14 Henderson also claims that language used by the District Court in the “Reasons for the Sentence”--
which followed its findings, verdict, judgment and sentence--that “[t]he recanted testimony of the victim
children created more than a reasonable doubt, especially as to the felony,” indicates the existence of
reasonable doubt as to all of the counts against her. We disagree.

¶15 As set forth above, the District Court acquitted Henderson of felony criminal endangerment and
misdemeanor endangering the welfare of children and convicted her of three counts of misdemeanor
assault. In the context of the record before us, the District Court’s statement regarding the children’s
recanted testimony clearly applies to the felony assault offense and the misdemeanor “endangering”
offense of which Henderson was acquitted. The statement does not apply to the misdemeanor assault
charges because the children’s statements pertaining to those offenses were consistent in all material
aspects throughout the proceedings. There simply was no “recanted testimony” with regard to the
misdemeanor assaults.

¶16 On this record, we conclude the State proved the offenses of which Henderson was convicted
beyond a reasonable doubt.

¶17 2. Did the District Court err in basing Henderson’s conviction solely on unreliable prior
inconsistent statements by the children?

¶18    Montana’s misdemeanor assault statute, § 45-5-201, MCA, provides in pertinent part:

              (1) A person commits the offense of assault if the person:
              (a) purposely or knowingly causes bodily injury to another;
              ...
              (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 injury to
         another.

The District Court convicted Henderson of three counts of misdemeanor assault for 1) purposely or
knowingly causing bodily injury to Kyler when she knocked him down and pulled his hair; 2) purposely
or knowingly making contact of an insulting or provoking nature when she spit on Kelly and called her a
vulgar name; and 3) purposely or knowingly causing reasonable apprehension of bodily injury to Kelly
when she threatened to strike Kelly with a board.

¶19 Henderson argues the District Court’s reliance on the children’s inconsistent testimony is
insufficient to support her assault convictions. She argues that all of the children’s testimony constitutes
unreliable prior inconsistent statements and further contends the State failed to corroborate the children’s
statements by providing evidence of injuries sustained by the children or conducting forensic tests on the
physical items introduced into evidence.

¶20 In asserting that all of the children’s statements are inconsistent, Henderson fails to distinguish
which of the children’s statements were made before trial and which of the statements were given as

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testimony at trial. Kyler gave three different statements: his original statement to Deputy Gleich, his
subsequent interview with Henderson’s counsel, and his testimony at trial. With respect to the
misdemeanor assault charges, Kyler’s statements that Henderson had knocked him down and pulled his
hair, spit on Kelly and called her a vulgar name and threatened Kelly with a board remained unchanged
from his original statement to Deputy Gleich through his trial testimony. In this regard, there were no
prior inconsistent statements on which the District Court relied.

¶21 With regard to the assault offenses of which Henderson was convicted, Mista and Kelly both
stated before trial and testified during trial that Henderson had spit on Kelly, called her a vulgar name
and threatened Kelly and Melissa with a board. Clearly, the children’s statements and testimony
regarding the misdemeanor assaults were not inconsistent and, therefore, the District Court could not
have based Henderson’s misdemeanor assault convictions solely upon inconsistent statements made by
the children.

¶22 Henderson advances State v. Stringer (1995), 271 Mont. 367, 382, 897 P.2d 1063, 1072, in
support of her contention that prior inconsistent statements without corroboration are insufficient to
sustain a criminal conviction. In that case, a victim of domestic violence and three other witnesses
changed their testimony at trial from the statements they gave to police. Stringer, 271 Mont. at 373, 897
P.2d at 1067. We held the evidence was sufficient to withstand a motion for a directed verdict, in spite
of the inconsistent statements, because the original statements given at the scene of the assault were
corroborated by other evidence. Stringer, 271 Mont. at 382, 897 P.2d at 1072. Stringer is readily
distinguishable from the present case. Here, the children did not give prior inconsistent statements
relating to the misdemeanor assaults. Thus, pursuant to Stringer, their testimony did not require
corroboration. In any event, however, corroborating evidence existed here as it did in Stringer, where
we affirmed the district court’s denial of a directed verdict. Here, the District Court also received into
evidence recorded interviews of Kyler, Kelly and Mista, Deputy Gleich’s original report, and a
deposition from Mista’s counselor.

¶23 We hold the District Court did not err in basing Henderson’s assault convictions on the evidence
before it.

¶24    Affirmed.

                                                                               /S/ KARLA
                                                  M. GRAY


                                                                   We concur:

                                                        /S/ JAMES C. NELSON
                                                        /S/ PATRICIA COTTER
                                                     /S/ TERRY N. TRIEWEILER
                                                              /S/ JIM RICE


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