                              No. 83-28

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1984



STATE OF MONTANA,
                Plaintiff and Respondent,
    -vs-
DAN ROBERT GOODWIN,
                Defendant and Appellant.




APPEAL FROM:   District Court of the Sixteenth Judicial District,
               Intand for the County of Custer,
               The Honorable Alfred B. Coate, Judge presiding.

COUNSEL OF RECORD:
         For Appellant:
                Gary E. Wilcox argued, Billings, Montana


         For Respondent:
               Hon. Mike Greely, Attorney General, Helena, Montana
               Mark Murphy argued, Asst. Atty. General, Hcklena
               Keith D. Haker, County Attorney, Miles City, Montana
               Dennis Corbin, Deputy County Atty. present at argu-
               ment, Miles City, Montana




                               Submitted: 12/1/83
                                 Decided:   3/29/84

         PAR 2 9 1984
Filed:




                               Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.


     Defendant      Daniel    Robert   Goodwin    appeals       from   the
sentence imposed for aggravated kidnapping by the Sixteenth
Judicial District Court, Custer County.           The District Court
found that the victim suffered serious bodily injury and
imposed a 60-year sentence. We affirm.
     The following issue is dispositive:
     Is there sufficient evidence to support the District
Court's   finding    that the victim      suffered   serious bodily
injury?
     On February 17, 1981 at about 6:50 p.m.,               the Custer
County dispatcher received a call from parents reporting
their seven-year-old daughter missing.            They said she had
last been seen near a local church around 5:30 p.m. talking
to a middle-aged man with glasses who was sitting in a
two-tone maroon or dark-red. Chevy pickup with Yellowstone
County license plates.
    Around    7:30   p.m.,    the girl appeared at home looking
dirty,    dishevelled   and    bloody.      She    gave     a    detailed
description of a man, who later turned out to be defendant,
and his vehicle.      She stated she had been taken by the man
toward the airport on the Jordan highway.         The man parked the
truck by the road.      He took her clothes off and tied her to
the truck seat with a white rope.          The man choked her and
assaulted her, sexually and otherwise.       He threatened to have
her killed if she told anyone what he had done.                  He then
dropped her off about 5 blocks from home and she walked the
rest of the way home.
     The girl was taken to the hospital where an examination
revealed various bruises and lacerations, including a severe
laceration in the vaginal area extending all the way to the
cervix.      Major surgery was required to repair the vaginal
laceration.
        Meanwhile, authorities began a search of local motels.
At   one    local    motel,    police     discovered        a    parked   pickup
matching     the     description    given      by    the    victim.          After
attending the medical            examination of        the victim, police
returned to the motel.         Through the window of the truck, they
observed what appeared to be blood stains on the seat.                        They
knocked on the door of the room and defendant opened the
d.oor. The police advised him of his rights and told him that
he and his truck matched the description given by a possible
rape victim.        He was arrested and taken to the Custer County
Jail.
        Defendant    was   charged      on    February          19,   1.981 with
aggravated kidnapping and sexual intercourse without consent.
The State gave notice of intent to treat him as a persistent
felony offender.        He pleaded guilty on October 1, 1981 to
aggravated kidnapping and felony sexual assault.                       Defendant
acknowledged by affidavit that he was a persistent felony
offender.
        Prior to sentencing, defendant's counsel moved the court
to   declare        sections     45-5-303(2)         and        46-18-223,    MCA
unconstitutional.       Section 45-5-303(2), MCA is the aggravated
kidnapping sentencing statute, which in part provides that a
person convicted of the offense may be imprisoned up to 100
years unless he has voluntarily released the victim alive, in
a safe place and not suffering from serious bodily injury, in
which case the maximum term of j-mprisonment is 10 years.
Section     46-18-223,     MCA     sets      forth    the       procedures    and
standards for determining the applicability of exceptions to
mandatory minimum sentences.              Defendant argued that these
statutory provisions impermissibly shift the burden of proof
to the defendant or fail to require establishment of facts by
the State by a sufficiently stringent standard.                  After a
lengthy sentencing hearing, the court sentenced defendant to
60 years for aggravated kidnapping and 15 years for sexual
assault and ordered the sentences to run concurrently.               The
court designated defendant a persistent felony offender and a
dangerous offender.        The sentences were conditioned upon the
court's rulings on the constitutional issues.              The motions
were   briefed    and    later denied by      the court.        Defendant
appeals.
       The dispositive issue is whether there is sufficient
evidence to support the District Court's findings that the
victim suffered serious bodily injury.
       The extent of the victim's injuries is important here
because    if    the    victim   suffered    serious   bodily     injury,
defendant may receive a sentence of up to L O O years under the
aggravated kidnapping statute.        But if the victim was injured
to some lesser degree, defendant's maximum sentence under
that statute is 10 years.         Section 45-5-303(2), MCA.        Here,
the District Court         specifically     found   there was    serious
bodily injury.
       Montana law disthguishes "serious bodily injury" from
"bodily injury."        Section 45-2-101(59), MCA defines "serious
bodily injury" as:
       "  ...  bodily injury which creates - substantial
                                           a
       risk of death or which causes serious permanent
       - -
       disfiqurement orprotracted loss or impairment of
       the function or process of any bodily member or
       organ.    It includes serious mental illness or
       impairment." (emphasis added)
"Bodily injury" is defined as "physical pain, illness or any
impairment of physical condition and includes mental illness
or impairment."        Section 45-2-101(5), MCA.
        The Compiler's Comment on the "serious bodily injury"
definition states that aggravated kidnapping and assault are
"graded in part by the degree of bodily harm threatened or
inflicted.         Serious     bodily   injury   differs     from   bodily
injury    ...     in     the    substantiality       of     pain,     risk,
disfigurement, or impairment which is created."              The statutes
leave for the courts the difficult line-drawing involved in
distinguishing the two categories of injury.
      The defendant contends the evidence satisfies none of
the criteria listed in the definition of serious bodily
injury.       A review of the sentencing transcript is appropriate
here.
      The testimony indicated that defendant inflicted upon
the victim a laceration of the vaginal cavity extending from
the opening of the vagina to the cervix.                   The laceration
stopped just short of the perineal membrane, which encloses
the abdominal cavity.            The danger of       infection is most
significant if bacteria          is introduced into the a.bdomina1
cavity by a puncture in that membrane, although no puncture
occurred here.
      Major surgery was performed to repair the laceration.
The     surgeons       u.sed general    anesthesia    to    perform    the
operation.      One of the doctors, Dr. Rauh, testified:
      "Q: Now, Dr. R-auh, if [the victim's] injury had
      gone untreated           ...
                           would   you  consider this
      injury     ...
                 a serious injury?
        "A:   Yes, sir.
        IIQ:  And in what terms would you say it was
        serious, could you explain to the Court why it is a
        serious injury?
      "A:    This injury was serious because of the
      potential long-term scarring and alteration with
      particularly normal sexual function. The wound was
      contaminated with potential risk for overwhelming
      infection. Those were the primary serious natures
      of the wound.
        "Q:   ... if [the victim] had not been brought to
        you   for medical     treatment, was   there  any
        substantial risk of death to her?
        "A:    There would have been a risk of death, yes.
        r'Q:   In what form, for not having the surgery,
        bleeding, or what would be the substantial risk of
        death?
        "A:   Infection."      Tr. at 12-14.
On cross-examination, Dr. Rauh further indicated that upon
initial examination he considered her life in substantial
danger.       He stated that the laceration was more severe than
incurred in ordinary childbirth.            Due to the injury a portion
of the hymen was missing.                He agreed that the victim was
permanentl-y scarred.
        Dr. Parke, who assisted Dr. Rauh, testified that "this
was a very serious laceration."            The laceration was very near
the perineal membrane.           The abdominal cavity could have been
exposed to bacteria            normally present in the vaginal and
rectal areas and the seriousness of any infection would be
greater       because    the    victim    was   a   preadolescent.   In
preadolescents, blood supply which helps fight infection is
less than in a.n adult.             Dr. Parke testified there is a
permanent scar resulting from the laceration.                There were
also bruises on the neck, throat, back and chest, as well as
bleeding from the soft palate.              Dr. Parke stated the victim
ha.d been in substa.ntia1 rj-sk of death from choking.               He
testified there is usually an emotional scar in such cases of
child sexual abuse, although in this case it was too early to
tell.     It was also too early to know whether normal sexual
intercourse or childbearing would be possible.
        Defend.ant, however, emphasizes the la.ck of certainty in
the testimony.          He contends that conditions threatening to
life were only possibilities which did not occur.              He argues
there was no substantial risk of death because the infection
feared by the doctors never occurred.                      Further, he contends
that successful medical treatment obviated the risks.
       In State v. Fuger ( 1 9 7 6 ) ,       170 Mont. 442, 554 P.2d 1-338,
defendant was convicted of aggravated assault for inflicting
serious bodily injury to another by kicking and beating him
about the face and upper portion of the body.                     The defendant
contended that the evidence was insufficient to show tha.t the
victim     faced    a        "substantial     risk    of     death"   under       the
definition of serious bodily injury.
       In Fuger, the victim was first treated in the emergency
room at Daly Hospital in Hamilton and later transported to
Missoula for further examination and treatment.                       The doctor
testified h.e was transferred because the Hamilton hospital
was not equipped to handle seriously injured or gravely
injured head-type cases.               The examining physician testified
that at the time of examination he was in a potentially
dangerous sit.uation and facing a substantial risk of death.
When     admitted       to     the    hospital,      the    victim    was    in    a
semi-conscious      state with          extensive bruises and             swelling
around the face.         Further examinations showed he had suffered
a broken nose and a fractured palate.                      170 Mont. a.t 444-45,
554 P.2d at 1340.
       The substance of defendant's argument in Fuger was that
in retrospect the victim had not been in substantial risk of
death.        We    stated           that    even    though     " [nlo      serious
complications in fact developed as a result of [the victim's]
injuries," the evidence was sufficient to support a finding
of serious bodily injury.                   The test is not "whether the
victim lives or dies."               170 Mont. at 445, 554 P.2d at 1340.
       The defendant's argument here is indistinguishable from
that     rejected       in     Fuger.         He     argues    that      potential
complications must actually occur before there can be a
substantial risk of death.               However, as Fuger makes clear, it
is the element of substantial risk of death rather than near
death      or    death     itself which         establishes     serious    bodily
injury.
      The clear and uncontradicted evidence is that the victim
suffered a serious laceration requiring major surgery.                          Both
physicians testified the victim faced a substantial risk of
death from possible infection and gave reasons to support
their conclusions.                The evidence is sufficient under any
standard        to     support    a     findinq   that    the   victim    was     in
substantial risk of death and was suffering serious bodily
injury.
      The record also supports a finding that the defendant
inflicted serious permanent disfigurement on the victim.                         The
term "disfigurement" connotes, among other things, deformity,
defacement, marring and/or damage to one's attractiveness.
The doctors testified that the victim would bear a permanent
scar in the vaginal and perineal areas and that after the
injury a portion of the victim's hymen was missing.                            It is
beyond dispute that the victim has been left with a serious
permanent disfigurement within the commonly accepted meaning
of    that      word.       Serious       permanent      disfigurement     is     an
additional basis for a finding of serious bodily injury.
      We        hold     there     is    sufficient      evidence      under     any
evidentiary standard to support the District Court's finding
of serious bodily injury.
      Defendant also argues that the aggravated kidnapping
sentencing             statute,       section     45-5-303 ( 2 )   ,   MCA ,      is
unconstitutional because it shifts the burden to defendant to
disprove an element of the offense or it requires proof by
the   State by          too low an evidentiary            standard.       Section
45-5-303 ( 2 ) , MCA provides:
      "(2) Except as provided in 46-18-222, a person
      convicted of the offense of aggravated kidnapping
      shall be punished by death or life imprisonment as
      provided in 46-18-301 through 46-1-8-310 or be
      imprisoned in the state prison for a term of not
      less than 2 years or more than 100 years and may be
                                         -           -
      fined not more than $50,000, unless - -     he has
      voluntarily released the victim alive, - -a- safe
                                               in
      place, - - sufferinq from serious bodily
              and not
      injury, in which event he shall be imprisoned in
      the stateprison - - - t e r m - not less t h a n 2
                         for a - - - of
      years or more than 10 vears and mav be fin.ed no'f:
      -            -              L
      more than $50,000. I (emphasis addedf
                         '
Here, it is not disputed whether the defendant voluntarily
released the victim alive and in a safe place.                The dispute
is whether the victim was suffering from serious bodily
injury.           The     defendant      contends       this      statute
unconstitutionally places          the burden     on him      to disprove
serious bodily injury to avoid enhancement of his sentence.
      However, we find it unnecessary for several reasons to
reach this issue.       First, as noted above, regardless of what
evidentiary   standard      is    applied,    the   evidence     here   is
sufficient to support a finding of serious bodily injury.
Second, even if it could be established that the statute
places the burden of proof on the defendant, the burden was
not so placed in this case.            Here, the State assumed the
burden of proving serious bodily injury.            The State presented
two medical witnesses whose testimony established that the
victim suffered serious bodily injury.
      The defendant also complains that section 46-18-223 (3),
MCA applies an unconstitutionally low evidentiary standard.
However, this statute was not applied in d.efendantts case.
The   defendant was       not    subjected   to   any   of    the alleged
constitutional errors he complains of and these issues are
therefore not before this Court.
      Moreover,    even    if    the defendant prevailed        on   these
issues, there is a valid alternative basis which supports his
60-year aggravated        kidnapping sentence.          The   State gave
notice of intent to seek persistent felony offender status
for defendant.       Defendant admitted by affidavit the prior
felonies, the sentences received and that less than 5 years
had elapsed since his last felony conviction.            In short,
defendant admitted to being a persistent felony offender and
the District Court designated defenda.nt a persistent felony
of fender.        Section   46-18-502(1),   MCA   provides   that   a
persistent felony offender "shall be imprisoned in the state
prison for a term of not less than 5 years or more than 100
years   . . .."     Defendant's sentence is within the range of
sentences authorized by the Legislature for persistent felony
offenders.
     We affirm the judgment of the District Court.




We concur:


 3 ~ & & d ~
 Chief Justice
