                            No. 94-112
           IN THE SUPREME COURT OF THE STATE OF MONTANA

                               1995




APPEAL FROM:   District Court of the First Judicial District,
               In and for the County of Lewis and Clark,
               The Honorable Thomas C. Honzel, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Charles E. Petaja, Helena, Montana
          For Respondent:
               Honorable Joseph P. Mazurek, Attorney General;
               Paul Johnson, Assistant Attorney General, Helena,
               Montana
               Robert Wood, Assistant City Attorney, Helena,
               Montana


                               Submitted on Briefs:   March 2, 1995
                                           Decided: April 4, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
     Charles Lee Reynolds, Jr., appeals his conviction of resisting

arrest,   in violation of 5 45-7-301, MCA, following a jury trial in

the First Judicial District Court,        Lewis and Clark County. We

affirm.
     The issues are:

     1.      Did the District Court err in failing to dismiss the

resisting arrest chargesua sponte?

     2.    Did the District Court err in its administration of the

trial?

     3.   Was Charles denied effective assistance of counsel?

     4.   Did the District Court err in sentencing Charles?

     On July 30, 1993,    Helena Police Officers Brett Helling      and

Jerry McGee were dispatched to a disturbance at the home of Charles

and Robin Reynolds.    Gordon Eslick,    a civilian passenger, accompa-

nied Officer Helling to the scene.        When the officers arrived at

the Reynolds residence, they heard loud voices coming from inside

the house.     Officer Helling   knocked at the front door but nobody

responded.      Helling went to an open window and called to the

occupants.     Charles then came to the door and voluntarily exited

the house.      Charles stood in the front yard with Officer McGee

while Officer Helling entered the residence and spoke with Robin.
     Officer Helling described Robin as "hysterical." While he did

not observe any physical signs of abuse,        he stated she was very

upset. After a short discussion with Officer Helling, Robin signed

a complaint of domestic abuse against Charles.

                                     2
        Officer Helling exited the house and proceeded down the front

steps.      He informed Charles that he was under arrest for domestic

abuse.      Charles faced the house and placed his hands behind his

back.      Officer Helling secured a handcuff to Charles' left wrist,

grasped his right wrist, and attempted to complete the handcuffing

procedure.

        At this point the witnesses' stories vary.           Officer Helling,
Officer McGee, and Eslick testified that Charles pulled his right

arm away and swung it around the left side of his body in a

circular motion.       Although both Officer Helling and Officer McGee

were located behind Charles,             they both testified that             they

interpreted his conduct as an aggressive gesture and as an attempt

to resist arrest.        Both officers testified that, as he swung his

right arm he said something like "you are not going to arrest me."

        After Charles swung his right arm, Officer Helling took him to

the ground.      Officer McGee immediately came to Officer Helling's

aid and assisted in restraining Charles.              The   officers    completed

the     handcuffing   procedure   and   transported   Charles   to     the   police

station for processing.

         Charles claims that he did not attempt to strike either of the

officers.     Rather, he argues that pulling his arm away was a reflex

reaction to Officer Helling's "wrenching" on his shoulder. He

claims that Officer Helling pulled his arm too hard and it caused

him substantial pain.        His arm movement, he argues, was merely an

involuntary reaction to relieve the pain.



                                         3
     On September 20, 1993, Charles was found guilty of domestic
abuse and resisting arrest in the Helena City Court.               Charles

appealed his conviction denovo to the First Judicial District Court

of Lewis and Clark County.         On January 31, 1994, a jury found

Charles guilty of resisting arrest.          The domestic abuse charge was

dismissed following the State's case-in-chief. Charles appeals his

conviction and the sentence imposed.          We affirm.

                                   Issue 1

     Did the District Court err in failing to dismiss the resisting

arrest charge ma sponte?

     Charles did not move the District             Court to dismiss the

resisting arrest charge after the State's case-in-chief or at the

conclusion of the trial.       However,   the District Court may dismiss

a case upon its own motion if it finds that there is insufficient

evidence to support a conviction.         Section 46-16-403, MCA, states,

in relevant part:

           When, at the close of the prosecution's evidence or
     at the close of all the evidence, the evidence is
     insufficient to support a finding or verdict of guilty,
     the~.court may, on its own motion or on the motion of the
     defendant, dismiss the action and discharge the defen-
     dant.

No dismissal is warranted if any rational trier of fact, viewing

the evidence in a light most favorable to the prosecution, could

conclude that the essential elements of the crime had been proven

beyond   a   reasonable   doubt.   We will not overturn the District

Court's decision not to dismiss a charge absent an abuse of
discretion.       State v. Haskins (1992), 255 Mont. 202, 841 P.2d 542;
State v. Laverdure (1990), 241 Mont. 135, 785       P.2d 718.

        Section   45-7-301,   MCA,   sets out the elements of resisting

arrest as follows:

              (1)  A person commits the offense of resisting
        arrest if he knowingly prevents or attempts to prevent a
        peace officer from effecting an arrest by:
              (a)  using or threatening to use physical force or
        violence against the peace officer or another; or
              (b) using any other means which creates a risk of
        causing physical injury to the peace officer or another.

              (2)  It is no defense to a prosecution under this
        section that the arrest was unlawful, provided the peace
        officer was acting under color of his official authority.

Charles argues that the arrest did not comply with § 46-6-312, MCA,

which sets forth the manner in which warrantless arrests are to be

made.     Charles claims that because the officers did not follow the

criteria established in 5 46-6-312, MCA, they were not acting under

color of authority.

        We reject this argument for two reasons.       First,   the State

presented sufficient evidence by which a jury could find that the

officers did comply with 5 46-6-312, MCA.        The officers testified

that they identified themselves, that they informed Charles that he

was under arrest and that the charge was domestic abuse.          This is

all that 5 46-6-312, MCA, requires.

        Second,   we conclude that law enforcement officers need not

necessarily comply with the requirements of § 46-6-312, MCA, in

order to be acting under color of authority.         Both officers were

dressed in official Helena Police Department uniforms and identi-

fied themselves as police officers.         These acts alone are suffi-


                                       5
cient to establish that the officers acted under color of authori-

ty.   See Florida v. Shipman (Fla. Ct. App. 1979), 370 So.2d 1195.
Compliance with § 46-6-312, MCA, addresses the lawfulness of the

arrest,    not whether the officers acted under color of authority.

Therefore, regardless of whether or not the officers complied with

§ 46-6-312, MCA, a resisting arrest charge is proper because the

officers acted under color of authority.

      Next,   Charles challenges the sufficiency of the evidence

concerning his mental state.       He claims that he did not act

"knowingly"    as required by 5 45-7-301(l), MCA.         Rather,   Charles

insists that his arm movement was a reflexive reaction to the pain

caused by Officer Helling's    handcuffing procedure.

      Conversely, the State presented testimony from Officer McGee,

Officer Helling and Eslick that Charles' arm movement was much more

than "reflexive" in nature.     All   three   witnesses    testified   that

Charles'   conduct was much more like an aggressive swing or punch,

twisting around his body toward the officers.              Both     officers

testified that, as he swung his arm, Charles stated that he was not

going to allow them to arrest him.    Viewing the testimony of these

three witnesses in the light most favorable to the prosecution, a

rational juror could conclude that Charles' conduct was a conscious
effort to prevent the officers from effecting his arrest.

      We   conclude   that the District Court did not abuse its

discretion in failing to dismiss suc2 sponte the resisting arrest

charge
                                         Issue 2

        Did the District Court err in its administration of the trial?

        Charles     alleges    various         errors in     the   District     court ' s
administration of the trial.             These claims include: 1) allowing the

State to present its case-in-chief concerning the domestic abuse

charge; 2)        allowing the State to comment on the domestic abuse

charge after its dismissal;              and 3) limiting Charles to evidence

concerning the resisting arrest charge after the dismissal of the

domestic abuse charge.

        In Montana Rail Link v. Byard (1993), 260 Mont. 331, 860 P.Zd

121,    we stated,     w [tlhe standard of abuse of discretion is applied

to     discretionary    rulings,        such    as   trial   administration     issues,

post-trial motions and similar rulings."                     Montana Rail Link, 860

P.2d at 125.        Similarly,    we apply an abuse of discretion standard

to trial court's evidentiary rulings.                 State v. Passama (19931, 261

Mont. 338, 341, 863 P.2d 378, 380.

        Defense    counsel's     only    objection     concerning    these    matters came

during the State's cross-examination of Charles, and this objection

was    properly    sustained.      Charles did not object to the court's

limiting his defense to evidence concerning resisting arrest or the

prosecution's references to domestic abuse.                   Charles concedes that

no objection was made to the District Court, but argues that we

should review it under the plain error doctrine.                    In the absence of

a      timely   objection, we      may     still review a          district court's

decisions in order to assure that the substantial rights of the
parties have not been infringed and to prevent manifest injustice.
State v. Wilkins (1987), 229 Mont. 78, 80, 746 P.2d 588, 589.    Such
appeals are also limited by   5 46-20-701(Z), MCA, which states:

          Any error, defect, irregularity, or variance which
     does not affect substantial rights shall be disregarded.
     No claim alleging an error affecting jurisdictional or
     constitutional rights may be noticed on appeal, if the
     alleged error was not objected to as provided for in 46-
     20-104, unless the defendant establishes that the error
     was prejudicial as to his guilt or punishment and that:
           (a) the right asserted in the claim did not exist
     at the time of the trial and has been determined to be
     retroactive in its application;
           (b)  the prosecution, the judge, or a law enforce-
     ment agency suppressed evidence from the defendant or his
     attorney that prevented the claim from being raised and
     disposed of; or
           (c)  material and controlling facts upon which the
     claim is predicated were not known to the defendant or
     his attorney and could not have been ascertained by the
     exercise of reasonable diligence.

See State v. Reynolds (1990), 243 Mont. 1, 792 P.Zd 1111.

     We note that the references to the underlying domestic abuse

during the State's closing argument were appropriate to establish

why the officers were at the Reynolds residence and to put the
resisting arrest charge in proper context.     We reiterate that the

prosecution's questioning of Charles during       cross-examination

concerning the alleged domestic abuse was objected to by defense

counsel and sustained by the District Court.

     After a careful review of the record, we conclude that Charles

has not been prejudiced by the alleged errors nor has he complied

with any of the requirements contained in § 46-20-701(2), MCA.

Charles has failed to show how the court's trial administration

infringed upon his right to a fair trial on the resisting arrest

charge.   Therefore, we need not address these claims further



                                  8
                                     Issue 3
         Was Charles denied effective assistance of counsel?

         Charles claims that he was prejudiced by ineffective assis-

tance     of   counsel.     We have adopted the United States Supreme

Court's test for determining whether a party has been denied

effective      assistance   of   counsel.       In State v. Aills (1991),   250

Mont. 533, 822 P.2d 87, we stated:

         To demonstrate that counsel's performance was deficient,
         defendant must prove that counsel's performance fell
         below the range of competence reasonably demanded of
         attorneys in light of the Sixth Amendment.   Second, the
         defendant must demonstrate that counsel's deficiency was
         so prejudicial that the defendant was denied a fair
         trial.

Aills,     822 P.2d at 88 (citing Strickland v. Washington (1984),          466

U.S. 668, 687,       104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693). In

reviewing an ineffective assistance of counsel claim,               the trial

counsel's      performance "must not be tested by a greater sophistica-

tion of appellate counsel, nor by that counsel's unrivaled opportu-

nity to study the record at leisure and cite different tactics of

perhaps doubtful efficacy."          State v. Marts (1988), 233 Mont. 136,

140,     760 P.2d 65, 68

         In his appeal to this Court,             Charles has summarized the

alleged prejudicial deficiencies as follows:

         It is the position of the Appellant that trial counsel
         knew or should have known that his wife would not testify
         at District Court.   Counsel should have concentrated on
         the elements of the offense, and should have objected to
         a continuation of the trial when the charge of domestic
         abuse was dropped.   Further, it is the position of the
         Appellant   that counsel should have requested       that
         judgment notwithstanding as to the verdict be granted.
         Finally, Appellant believes that a mistrial should have
         been requested by his counsel.
                                            9
Charles has      failed to   established    these   alleged     prejudicial
deficiencies.

      First, the record does not indicate that either the prosecu-

tion or defense counsel knew with any degree of certainty that

Robin would not appear and testify at trial.                Therefore,    the
prosecution was entitled to present its case-in-chief and attempt

to establish the elements of the domestic abuse charge.          See State
v. Pinkerton (Mont. 1995),         Mont. ~, 52 St.Rep.        186.

      Second, the record shows that the jury was properly instructed

on the elements of resisting arrest and the applicable burden of

proof.    Charles has failed to show how his trial counsel's failure
to "concentrate" on these elements at trial prejudiced his right to

a fair trial.

      Third, based on our determination that the State was entitled

to   present   its case-in-chief as to the domestic abuse charge,

Charles has established no reasonable grounds by which his trial

counsel    could have   objected   to the trial      continuing on        the

resisting arrest charge after the dismissal of the domestic abuse

charge.

      Finally,   as discussed above,       the   prosecution's       comments

concerning domestic abuse after the dismissal of the domestic abuse

charge did not constitute reversible error.         Thus,   Charles' trial

counsel did not err by failing to request a mistrial or a judgment

notwithstanding the verdict on such grounds.

      We conclude that Charles was not prejudiced by ineffective

assistance of counsel as his trial counsel's performance clearly

                                   10
fell "within the wide range of reasonable professional assistance"

required by law.        Strickland,    466   U.S. at 689.

                                      Issue 4

       Did the District Court err in sentencing Charles?

       Within    the   statutory   sentencing    guidelines,   district    courts
are given broad discretion in sentencing criminals and such

sentences will not be overturned absent an abuse of discretion.

State v. Carson (1984), 208 Mont. 320, 677 P.2d 587.                      Charles

claims that the District Court erred by sentencing him to the same

sentence ordered by the City Court.                  He claims that he was
convicted and sentenced for both domestic               abuse and resisting

arrest in City Court while he was convicted and sentenced for only

resisting arrest in District Court.             He claims receiving the same

sentence was inequitable and denied him adenovo review of the City

Court's   determinations.

       Charles' position is based on two misconceptions.           First, this

Court does not review the equity of sentences.              Reviewing     whether

a sentence within the applicable statutory range is equitable under

the facts and circumstances of any given case is more properly the

duty of the Sentence Review Board, not this,Court.              State v. Dahms

(1992),   252   Mont. 1,   825   P.2d 1214.

       Second,   a review of the record reveals that Charles did not

receive identical sentences in the City Court and the District

Court.     The City Court sentenced Charles to 180 days in jail and

$500   plus costs for each conviction. Thus, his total sentence in
City Court was one year in jail with no time suspended and over

                                        11
$1000 in fines and costs. The District Court, on the other hand,

sentenced Charles to 180 days in jail with 120 suspended and $500
plus one-half the cost of trial.             His total sentence from District

court,     therefore,     is 60 days     in jail with the remaining          120

suspended and a $500 fine plus one-half the costs.

        We conclude      that the District        Court did not abuse its

discretion     in     sentencing   Charles.     The sentence is within the

statutory guidelines for resisting arrest and did not deny Charles

his     right ofdenovo review from the City Court.

         In his reply brief,       Charles claims that any references to

domestic abuse in this trial were improper due to the prosecution's

failure to satisfy the notice requirements of the modified just

rule.      See State v. Matt (1991), 249 Mont. 136, 814 P.2d 52.            This

issue is raised for the first time in Charles'               reply brief.    The

scope of a reply brief must be limited to issues raised in the

response     brief.     Rule 23(c),   M.R.App.P.      Therefore,   we will not

address this issue on appeal.

        We affirm the decision of the District Court

         Pursuant to Section I, Paragraph 3(c),           Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of this Court and by a report of its result to State

Reporter Publishing Company and West Publishing Company



                                                      I

                                                   Chief Justice

                                        12
We concur:
                                          April 4, 1995

                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail,       the
following named:


Charles L. Reynolds
P.O. Box 9653
Helena, MT 59604

Charles E. Petaja
Helena Avenue Law Offices
1085 Helena Avenue
Helena, MT 59601

Hon. Joseph P. Mazurek, Attorney General
Paul Johnson, Asst. Attorney General
Justice Bldg.
Helena, MT 59620

Robert Wood
Assistant City Attorney
101 No. Last Chance Gulch
Helena, MT 59601


                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA

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