                              No.    93-309
            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1994


STATE OF MONTANA,
            Plaintiff and Respondent,
     -vs-
STUART STRINGER,
            Defendant and Appellant.



APPEAL FROM:    District Court of the Eighth Judicial District,
                In and for the County of Cascade,
                The Honorable Thomas M. McKittrick, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                 John Keith, Attorney at Law, Great Falls, Montana

            For Respondent:
                 Hon. Joseph P. Mazurek, Attorney General, Jennifer
                 Anders, Ass't Attorney General, Helena, Montana
                 Randy Winner, Ass't City Attorney, Great Falls,
                 Montana



                              Submitted on Briefs:       November 18, 1993
                                              Decided:   February 3, 1994
Filed:
Justice John Conway Harrison.delivered the opinion of the Court.

     T h i s is an appeal from the Eighth Judicial District Court,

Cascade County. Appellant Stuart Stringer (Stringer) appeals from
the denial of his motions to dismiss on grounds of double jeopardy
and on failure of the State of Montana's       (State's ) witnesses to
make an in-court identification of the perpetrator.      We affirm.
     The issues before this Court are:
     1,   Did the District Court err in denying Stringer's motion to
dismiss on grounds of double jeopardy?
     2.   Did the District Court err in denying Stringer's motion to
dismiss based on the failure of the State's witnesses to make an
in-court identification of the perpetrator?
     On January 12, 1992, at approximately 3:00 a.m.,          police
officers Paul Smith and Jack Allen responded to a disturbance in
Great Falls, Montana.       Upon arrival at Stringer's residence, the
officers could hear yelling and banging inside. Officer Allen went
to the back of the house, while Officer Smith knocked on the front
door, which was a j a r .   No one answered.
      Officer Smith saw a woman, later identified as Stringer's
wife, Kathy, on the kitchen floor covering her head with her arms.
He also heard Stringer, who stood over his wife, yelling he was
going to kill her.      Officer Smith entered the house and announced
himself again.     Stringer heard Officer Smith this time.    Officer
Smith advised Stringer he was under arrest. Stringer--who had been
drinking--responded peaceably at first, offering his hands so that
he could be handcuffed.
                                     2
    Stringer, 37, then became inexplicably violent, physically
challenging the arrest. By that time, Officer Allen had returned
from the back of the house, entered the front door, and assisted
Officer Smith in restraining Stringer.    Because Stringer resisted
arrest so forcefully, Officer Allen radioed for back-up police
support.
    Officers Smith and Allen forcibly handcuffed Stringer, who,
according to officers, was salivating and acting wildly.    During
the struggle, Stringer kicked Officer Allen in the head.       The
officers restrained Stringer until back-up help arrived.   Because
of Stringer's kicking, the officers bound his legs.   The officers
then carried Stringer, whose arms were handcuffed behind his back,
face down to a police car in front of the house. Stringer resisted
continuously.   He screamed profanities, threatened to kill the
officers, and disturbed neighborhood residents.
     Stringer was charged by complaint with two misdemeanors:
disorderly conduct, in violation of 5 45-8-101(1)(c), MCA, and
resisting arrest, in violation of 3 45-7-301(1)(a), MCA.     After
failing to appear on the date scheduled for trial in city court,
Stringer was convicted of both charges.    Stringer appealed to the
District Court on June 19, 1992, whereupon trial was set for
November 2, 1992.
     The November 2nd trial was vacated on the court's motion due
to a jury trial that was in progress.      A new trial was set for
November 24, 1992. The State and Stringer, who was unrepresented
by counsel, appeared on November 24th; however, the State was
granted a continuance because Officer Smith, a material witness,
was ill.   The trial was reset for December 15, 1992; however,
Stringer was granted a continuance because he needed to get an
attorney. At that time, the court appointed a public defender, and
trial was reset for February 10, 1993.
     At the February 10th trial, Stringer appeared without counsel.
At the outset, the District Court Judge asked Stringer if he was
ready to proceed. He replied, "1 still don't have a lawyer, sir."
Because the trial had already been delayed once to allow Stringer
to retain counsel, the Judge determined that the trial should
proceed.
     After Officer Smith was sworn and testified, the District
Court Judge interrupted the proceedings and asked Stringer about a
letter in the court file which indicated that John Keith, a public
defender for the City of Great Falls, was going to represent
Stringer. Stringer responded that he had not contacted Mr. Keith,
but that he still wanted a lawyer.        The court recessed and
unsuccessfully attempted to locate Mr. Keith.      The court then
vacated the trial to allow Stringer an opportunity to secure
counsel.
     The trial de novo was finally held on March 19, 1993. At the
trial, Stringer was represented by Mr. Keith, who moved to dismiss
on the grounds that double jeopardy attached at the February 10th
trial. The motion was denied. Mr. Keith later moved to dismiss on
the basis that Stringer was never identified by the Staters
witnesses as the perpetrator.   That motion was denied as well.
    Stringer was convicted on both charges and sentenced to two
days in jail.   He was ordered to pay a $300 fine for disorderly
conduct and a $100 fine for resisting arrest.   All but one day of
the jail sentence was suspended, and Stringer was given credit for
one day of jail time already served.   The fines imposed were also
suspended on the condition that Stringer obey all laws and perform
forty hours of community service.   Stringer appeals.


     Did the District Court err in denying Stringer's motion to
dismiss on grounds of double jeopardy?
      Stringer argues that double jeopardy attached at the February
10, 1993, trial, after the first witness was sworn.     See 3 46-11-
503 (1)(d)(ii), MCA.    Section 46-11-503(2),   MCA, provides in
pertinent part that prosecution of the same transaction as a former
prosecution is barred unless:
          (a) the defendant consents to the termination or
     waives his right to object to the termination; or
          (b) the trial court finds that the termination is
     necessary because:


          (ii) there is a legal defect in the proceedings that
     would make any judgment entered upon a verdict reversible
     as a matter of law;
           (iii) prejudicial conduct makes it impossible to
     proceed with the trial without manifest injustice to
     either the defendant or the state;


     In the present case, the District Court based its denial of
Stringer's motion to dismiss on this statute. First, the District
Court found that Stringer waived his right to object to termination
and consented to the discontinuance of the trial when he stated,
"Yes, I do want a lawyer." Second, the District Court found that
the termination was necessary because there would be a legal defect
in the proceedings which would make any judgment entered upon a
verdict reversible as a matter of law.       The court based this
finding on the llpossibility
                           that jail time might be in the sentence
if the defendant was found guiltyt1
                                  and that the case would have had
built-in error because Stringer was not represented by counsel at
the time.   The court also found that allowing Stringer to continue
without counsel would have resulted in manifest injustice to
Stringer.
     Stringer contends that the court's      findings were clearly
erroneous, were unsupported by the record, and resulted from the
District Court's   failure to promptly determine the propriety of
appointing counsel for Stringer.    Stringer argues, and the record
shows, that Stringer twice expressed his desire to continue without
counsel at the February 10th trial.
     The waiver rule was designed to prevent defendants from
alleging a double jeopardy bar to retrial where they, not the
prosecutors, cause the mistrial or are otherwise responsible for
terminating the proceedings:    "Where the defendant has an active
hand in arranging the disposition of the causes so he might benefit
from the results, he waives any double jeopardy claims."    Boze v.
State   (Ind. 1987),   514 N.E.2d   275, 277   (citation omitted).
Although    Stringer did   not explicitly   request a mistrial   or
continuance, his request for counsel is what prompted the court to
vacate the proceedings.     T-he termination of the proceedings
ultimately worked to Stringer's advantage because it allowed him
the opportunity to secure Mr. Keith's representation.
     The District Court determined that, pursuant to 5      46-11-
503(2)(b)(ii),   MCA, this case would embody built-in reversible
error if Stringer were allowed to proceed without counsel. Section
46-8-101, MCA, which governs the right to counsel in criminal
trials, provides in pertinent part:
          (2) If the defendant desires counsel, is unable to
     employ counsel, and is entitled to have counsel assigned,
     the court shall assign counsel to the defendant without
     unnecessary delay.
          (3) The defendant, if unable to employ counsel, is
     entitled to have counsel assigned if:
          (a) the offense charged is a felony;
          (b) the offense charged is a misdemeanor and the
     court desires to retain imprisonment as a sentencing
     option; or
          (c) the interests of justice would be served by
     assignment.
     Once the District Court determined that Stringer had properly
preserved his right to counsel, the State asserts, it had an
affirmative duty under this statute to determine whether Stringer
qualified for court-appointed counsel, whether Stringer might be
subjected to imprisonment, or whether appointment of counsel was
required in the interests of justice. See State v. Skurdal (1988),
235 Mont. 291, 767 P.2d 304.   Stringer contends, however, that no
legal defect requiring reversal of the judgment would have occurred
because the only consequence of the court's    failure to appoint
counsel in this misdemeanor case would be to limit any jail
sentence which could be imposed. See Scott v. Illinois (1979), 440
U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383.
    Stringer's argument lacks merit.     Stringer requested counsel,
which    triggered the court's     obligation to determine whether
appointment was required.       See 3 46-8-101, MCA.       Stringer now
suggests that the District Court should have:      1) sacrificed its
authority to consider whether the gravity of the offense warranted
jail time--a result which the court acknowledged was an option in
this case; and 2) disregarded Stringer's     request for counsel and
allowed "the trial     [to] proceed to its conclusion despite a
legitimate claim of serious prejudicial error."     United States v.
Dinitz (1975), 424 U.S. 600, 610, 96 S.Ct. 1075, 1081, 47 L.Ed.2d
267, 275.
     The District Court properly avoided reversible error by
terminating the trial when it did. We hold, therefore, that no bar
to retrial exists under    §   46-11-503(2)(b)(ii), MCA.     Because we
determine that the court properly avoided reversible error, no
further inquiry into the double jeopardy issue is necessary.
                                   II

        Did the District Court err in denying Stringer's motion to
dismiss based on the failure of the State's witnesses to make an
in-court identification of the perpetrator?
        At the conclusion of the State's   case, Stringer moved for
dismissal of the charges because none of the Staters witnesses
identified Stringer as the perpetrator. The State agrees that the
officers who testified during the State's case-in-chief did not
specifically identify Stringer as the perpetrator or otherwise
physically indicate Stringer's presence in the courtroom.
    While Stringer could find no Montana case law supporting this
argument, he did find where the Wyoming Supreme Court dealt with
this issue.    See Capwell v. State (Wyo. 1984), 686 P.2d 1148.    In
Cawwell, the court found that the burden of proof on the State to
prove all elements of the offense includes identification of the
defendant as the perpetrator. Capwell, 686 P.2d at 1157. While an
in-court visual identification is not required, there must be some
basis for establishing the identity of the defendant as the
perpetrator.    Capwell, 686 P.2d at 1157.
     In Cawwell, the court found that the witnesses testified from
their personal    knowledge of the     identity   of the defendant.
Capwell, 686 P.2d at 1157.   In the case before us, Stringer argues
that the   State's   witnesses, the    officers, have no personal
knowledge of Stringer's    identity.   Merely calling him by name,
Stringer asserts, fails to establish any basis         for personal
knowledge of Stringer's identity.
     The State agrees that the prosecution must prove all elements
of the crime charged beyond a reasonable doubt, including the fact
that the party charged was the person who committed the offense.
See Capwell, 686 P.2d at 1157.      However, as the State correctly
asserts, Cawwell stands for the proposition that the method of
identification used in a criminal trial is largely within the
discretion of the trial court.    See Capwell, 686 P.2d at 1157.
     According to the State, there is no requirement that the
accused be identified in court as the perpetrator.     Rather, it is
only necessary that the person committing the crime be identified
as the person charged in the-information.     See United States v.
Capozzi (8th Cir. 1989), 883 F.2d 608, 617.
     Courts have held that an in-court identification is not
necessary where the evidence is sufficient to permit an inference
that the defendant on trial is the person who committed the
offense.   United States v. Morrow (4th Cir. lggl), 925 F.2d 779,
781; Price v. State (Ga. Ct. App. 1986), 348 S.E.2d 740, 742.       In
fact, a state can satisfy its burden of proving identity through
circumstantial evidence.   State v. Mecum (Neb. 1987), 404 N.W.2d
431; Creech v. State (Tex. Ct. App. 1986), 718 S.W.2d 89.
     Although there was no in-court identification of Stringer, the
District Court could have drawn the inference from the evidence
presented that Stringer was the perpetrator.       When responding to
the State's question regarding the identity of the suspect, Officer
Smith testified that the person was "[llater identified as Stuart
Stringer."     Furthermore, all   the   officers    referred   to   the
perpetrator as "Mr. Stringer."
     At no time during the trail was there any question of
misidentification.    Stringer took the stand and gave his own
version of the events which were previously described by the police
officers. Stringer's brother, wife and daughter also testified on
Stringer's behalf.   Nothing in their testimony raises any question
that the perpetrator was someone other than Stringer.
     No basis exists to reverse the District Court's ruling denying
Stringer's motion to dismiss for failure to identify him as the
perpetrator.   The District Court was entitled to infer Stringer's
identity and--in light of the record--correctly determined that

Stringer was, in fact, the perpetrator.

     Af finned.




We concur:
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