                              No.   91-480

            IN THE SUPREME COURT OF THE STATE OF MONTANA




STATE OF MONTANA,
                 plaintiff and Respondent,
     -vs-                                              MAY 2 1 11992
                                                               '
DEAN J. GOETTLE,
                 Defendant and Appellant.



APPEAL FROM:     District Court of the Eighteenth Judicial ~istrict,
                 In and for the County of Gallatin,
                 The Honorable Thomas A. Olson, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                 Brian P. Fay, Bozeman, Montana
            For Respondent:
                Hon. Marc Racicot, Attorney General, Helena, Montana
                John Paulson, Assistant Attorney General, Helena
                A. Michael Salvagni, County Attorney; Gary Balaz,
                Deputy and Gerry Higgins, Deputy, Bozeman, Montana


                                Submitted on Briefs:    April 30, 1992

Filed:
Chief Justice J, A. Turnage delivered the Opinion of the Court.
     Dean J. Goettle appeals a sentence and judgment of the
Eighteenth Judicial District,     alla at in County, which denied his
motion for a new trial.   We   affirm.
     The issue is whether the District Court abused its discretion
by denying Goettle's motion for a new trial based on a comment made
by the prosecution during closing argument.
     On June 25, 1991, a jury found Goettle guilty of criminal
endangerment and criminal mischief in connection with an incident
that involved two gun shots fired at the ~ l p i n e
                                                   Sinclair Station in
Bozeman, Montana.    On July 3, 1991, Goettle moved the District
Court f o r a new trial based on a comment made by the deputy county
attorney during closing argument. This comment called attention to
the fact that Goettle's wife did not testify in support of his
alibi defense.
     I n a sentence and judgment d a t e d August 12, 1991, the District
Court denied Goettle's motion for a new trial.     From this sentence
and judgment, Goettle appeals.


     Did the District Court abuse its discretion by denying
Goettle's motion for a new trial based on a comment made by the
prosecution during closing argument?
     In closing argument to the jury, a deputy county attorney made
the following comment:
    Now, there is something that I wondered about here. And
    that is, that we were told in the defense's opening
    statement that Pam Goettle, the defendant's wife, was
    going to testify and we would hear from her as to what
    went on. But that didn't happen.
Goettlels counsel objected to this comment as improper and the
District Court sustained the objection.     Goettlels counsel then
moved that the comment be stricken and the ~istrictCourt granted
this motion.   Later, the ~istrictCourt issued the jury a curative
instruction regarding the comment.     Following the trial, Goettle
moved for and the ~istrictCourt denied Goettle a new trial based
on this comment.
     Goettle argues that this comment was improper and cannot be
considered harmless error. The State argues that this comment was
an invited and appropriate response to the lack of evidentiary
support to Goettlels alibi defense and did not deprive him of a
fair and impartial trial.     Alternatively, the State argues that
even if the comment was improper, it was harmless error in light of
the strong case presented by the State against Goettle.
     Section 46-16-702, MCA, provides that a district court may
grant a new trial to a criminal defendant "if required in the
interest of justice.'I   The granting or denial of a new trial rests
Ifwithinthe sound discretion of the trial court and should not be
disturbed on appeal unless an abuse of discretion is shown.I1 State
v. Goodwin (lggl), 249 Mont. 1, 17, 813 P.2d 953, 963 (citation
omitted).
      Following a review of the record, we hold that the District
Court did not abuse its discretion when it denied Goettle's motion
for a new trial.     In the absence of any reference to Goettle's
wife's testimony, the comment that she failed to testify does not
appear damaging to Goettle.     Furthermore, any prejudice caused to
Goettle from this comment was rendered harmless through the
District   Court's   actions   of   sustaining Goettle's   objection,
granting Goettle's motion to strike, and        issuing a curative
instruction to the jury. We therefore affirm the ~istrictCourt's
sentence and judgment datcd August 12, 1991.




We concur:
