                                                                                          January 3 2012


                                         DA 10-0614

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2012 MT 1



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

CHARLES IVAN BRANHAM,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Fourth Judicial District,
                      In and For the County of Missoula, Cause No. DC 10-8
                      Honorable Douglas G. Harkin, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      David Avery, Avery Law Office, Missoula, Montana

               For Appellee:

                      Steve Bullock, Montana Attorney General; Mardell Ployhar,
                      Assistant Attorney General, Helena, Montana

                      Fred Van Valkenburg, Missoula County Attorney; Kristen LaCroix,
                      Suzy Boylan, Deputy County Attorneys, Missoula, Montana



                                                  Submitted on Briefs: November 9, 2011

                                                             Decided: January 3, 2012


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1        Charles Ivan Branham appeals from the October 22, 2010 judgment and

conviction of the Fourth Judicial District Court, Missoula County, entered after a jury

trial, adjudging him guilty of mitigated deliberate homicide, § 45-5-103, MCA, and

sentencing him to forty years at the Montana State Prison without the possibility of

parole.

                                FACTUAL BACKGROUND

¶2        During the night of December 10-11, 2009, Branham fatally stabbed Michael

Kinross-Wright during a fight. The fight arose from the fact that Brittany Wells, the

mother of one of Branham’s children, had a romantic and drug-using relationship with

Kinross-Wright.       After discovering text messages from Kinross-Wright to Wells,

Branham went to Kinross-Wright’s apartment. The two fought and during the fight

Branham obtained a knife from the floor and stabbed Kinross-Wright.

                                 STANDARD OF REVIEW

¶3        The applicable standards of review will be discussed with the individual issues.

                                        DISCUSSION

¶4        Issue One: Whether the District Court erred in refusing to admit evidence offered

by Branham to show Kinross-Wright’s propensity for violence.

¶5        At trial, Branham acknowledged that he stabbed Kinross-Wright, but argued that

the stabbing was a justifiable use of force. The State and Branham disputed who was the

initial aggressor as well as some of the details of the fight. Branham contended that


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Kinross-Wright attacked him when he got to the apartment, punching him multiple times

until he fell to the ground. Branham testified that Kinross-Wright continued to beat him,

and that he picked up a knife he saw on the floor, stabbing backward toward Kinross-

Wright. Branham testified that he managed to then break free but that Kinross-Wright

ran at him and Branham stabbed him again. Kinross-Wright suffered multiple stab

wounds, including one to the stomach which was the fatal wound. Branham testified that

he left the apartment and threw the knife in the river. Upon arrest, Branham had bruises,

scratches and a cut lip.

¶6     The State’s theory of the case was that the stab wound to Kinross-Wright’s

stomach was the fatal wound, and was inflicted early in the fight. The State contended

that the stomach wound caused Kinross-Wright to fall across Branham’s back, and that

the stomach wound was inflicted before Branham’s life was threatened.           The State

presented evidence of Branham’s statements the night of the fight that if he had not found

the knife, he and Kinross-Wright “probably would have duked it out” and he would have

ended up running away.

¶7     Branham presented evidence, admitted by the District Court, to support his

defense of justifiable use of force. Wells testified that when she called Kinross-Wright to

tell him that Branham was coming to the apartment, Kinross-Wright said that Branham

would get what he deserved. Branham testified that Kinross-Wright was aggressive, used

threatening language, and attacked him with punches to the face. Branham testified that

after Kinross-Wright knocked him to the ground punching and kicking him, he feared

severe injury or death. Branham testified that he grabbed the knife because he was scared

                                            3
that he was going to die. Branham testified that he knew that Kinross-Wright was in a

gang and had a violent past, and that this influenced his fearfulness and his use of force.

¶8     In addition to this evidence, Branham sought to introduce evidence that some

months prior to the fight, Kinross-Wright had threatened Jamie Landsness and her mother

with a knife. He also sought to introduce evidence of other specific instances of Kinross-

Wright’s aggressive personality and threatening behavior toward others. After extended

discussion out of the presence of the jury, the District Court disallowed this evidence

because Branham was not aware of these facts at the time of the fight with Kinross-

Wright and because the probative value was “outweighed by danger of unfair prejudice,

confusion and misleading to the jury.”

¶9     District courts have broad discretion to determine what evidence is relevant and

admissible, and this Court reviews evidentiary issues for abuse of discretion. State v.

Damon, 2005 MT 218, ¶ 12, 328 Mont. 276, 119 P.3d 1194.

¶10    At trial Branham relied upon the defense of justifiable use of force. Section 45-3-

102, MCA, provides:

       A person is justified in the use of force or threat to use force against another
       when and to the extent that the person reasonably believes that the conduct
       is necessary for self-defense or the defense of another against the other
       person’s imminent use of unlawful force. However, the person is justified
       in the use of force likely to cause death or serious bodily harm only if the
       person reasonably believes that the force is necessary to prevent imminent
       death or serious bodily harm to the person or another or to prevent the
       commission of a forcible felony.




                                              4
The primary issue in the affirmative defense of justifiable use of force is the

reasonableness of the defendant’s belief that the use of force is necessary. Therefore,

only facts known to the defendant at the time of the incident are relevant. State v.

Montgomery, 2005 MT 120, ¶ 19, 327 Mont. 138, 112 P.3d 1014; State v. Henson, 2010

MT 136, ¶ 27, 356 Mont. 458, 235 P.3d 1274. While Branham acknowledges that

evidence pertaining to whether his use of force was reasonable must be limited to facts

that he knew about Kinross-Wright at the time of the fight, he contends that the other

evidence of Kinross-Wright’s character, unknown to him at the time, was admissible to

show that Kinross-Wright was likely the aggressor. At trial Branham sought to introduce

evidence of other incidents where Kinross-Wright allegedly acted in a violent manner.

¶11    Rule 405, M. R. Evid., allows admission of evidence of character when the

character of a person “is an essential element of a charge, claim, or defense” or where the

“character of the victim relates to the reasonableness of force used by the accused in self

defense.” Character may be proven through reputation evidence or through specific

instances of conduct. M. R. Evid. 405; State v. Sattler, 1998 MT 57, ¶ 44, 288 Mont. 79,

956 P.2d. 54. In this case Branham sought to introduce evidence of specific instances in

which Kinross-Wright acted in an aggressive or violent manner. However, neither the

identity of the aggressor nor proof of the victim’s violent character is an element of the

defense of justifiable use of force under § 45-3-102, MCA. And, evidence of specific

instances of a victim’s prior acts, unknown to the defendant, is not admissible under M.




                                            5
R. Evid. 405. Sattler, ¶ 45 (identity of the aggressor); State v. Deschon, 2008 MT 380, ¶

24, 347 Mont. 30, 197 P.3d 476 (evidence of victim’s violent character).1

¶12    While evidence of the victim’s character was relevant to Branham’s defense that

he reasonably believed that he needed to use force to defend himself, that evidence is

limited to facts known to Branham at the time. Branham introduced evidence of multiple

instances of Kinross-Wright’s violent and threatening tendencies which were at least

arguably known to him at the time of the fight.      This evidence was properly admitted

under settled law on the issue of whether Branham’s actions were reasonable, but

evidence of facts unknown to Branham was not relevant to whether he acted reasonably

and was therefore properly excluded. The District Court did not abuse its discretion.

¶13    There is language in some prior cases, such as State v. Harville, 2006 MT 292, ¶

15, 334 Mont. 380, 147 P.3d 222, stating that a defendant must establish that he was not

the aggressor as an element of the defense of justifiable use of force. Harville relied

upon State v. Russell, 2001 MT 278, ¶ 24, 307 Mont. 322, 37 P.3d 678 as authority for

the proposition that identity of the aggressor is an essential element of justifiable use of

force. Russell, in turn, relied upon Sattler, ¶ 55, as authority for that same proposition.

While there is such language in Sattler, ¶ 55, that opinion also cites the correct rule that

“[n]othing in the statutorily-defined defense [§ 45-3-102, MCA] relates directly to the

question of the identity of the aggressor and Sattler cites to no authority under which the


1
  Section 45-3-105, MCA, provides limited circumstances under which an aggressor—the
person who provokes the use of force by another, may still rely on the defense of
justifiable use of force. Branham did not rely on that statute and it is not an issue in this
case. See State v. Sorenson, 190 Mont. 155, 168, 619 P.2d 1185, 1193 (1980).
                                             6
identity of the aggressor is an ‘essential element’ of the justifiable use of force defense.”

This is a correct statement of the law and a proper application of the affirmative defense

of justifiable use of force under § 45-3-102, MCA. Statements, such as those in Harville,

¶ 15 and Russell, ¶ 24, that the identity of the aggressor is an essential element of the

defense, are not correct and are therefore overruled.

¶14    At the same time, nothing said in this opinion should be construed to categorically

exclude evidence of the identity of the aggressor in a case involving the affirmative

defense of justifiable use of force. Evidence of the identity of the aggressor may still be

relevant and admissible if it tends to prove the reasonableness of a defendant’s belief at

the time of the incident that the use of force is necessary under § 45-3-102, MCA.

¶15    Issue Two: Whether the prosecutor’s comments deprived Branham of a fair trial.

¶16    Branham first contends that during closing argument the prosecutor made a

deliberate misrepresentation concerning testimony about a knife that had been in Kinross-

Wright’s apartment. At trial, one of Branham’s contentions was that Kinross-Wright

brought the knife into their fight, and he produced the testimony of several witnesses who

said that Kinross-Wright had a knife with him or in his apartment on prior occasions.

Branham’s attorney examined Kinross-Wright’s ex-girlfriend about a particular knife that

was in their apartment on a prior occasion when the Kinross-Wright had threatened her

and the police arrived. She testified that she remembered the incident, and Branham’s

attorney offered a photograph of that knife, and the photograph was admitted into

evidence. The State presented rebuttal evidence that the knife in the photograph had been

in police custody since before Kinross-Wright was stabbed.

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¶17    During closing argument, Branham’s attorney accused the State of ignoring the

issue of the whereabouts of the knife used to kill Kinross-Wright. He asked the jury to

focus on the knife, on the fact that the knife had never been located, and on the fact that a

“big knife” that had been in Kinross-Wright’s apartment had “disappeared.” In rebuttal,

the prosecutor responded with the obvious, which was that Branham admitted that he

threw the knife used in the fight in the river. In addition, the prosecutor observed that the

defense had “concocted” an issue with the knife shown in the photograph to send the jury

“down a rabbit trail.” Branham’s attorney objected that this was a misstatement of the

evidence, and that objection was overruled. The prosecutor continued briefly that the

knife in the defense photograph had been “under lock and key” since before Kinross-

Wright was killed and so had nothing to do with the crime.

¶18    A prosecutor’s comments to the jury may be reversible if the defendant

demonstrates that the comments were improper and that the comments prejudiced his

right to a fair trial. State v. Lindberg, 2008 MT 389, ¶ 25, 347 Mont. 76, 196 P.3d 1252.

This Court will not presume prejudice. State v. Tadewaldt, 2010 MT 177, ¶ 9, 357 Mont.

208, 237 P.3d 1273. A prosecutor may argue the gravity of the crime, the volume of

evidence, the credibility of witnesses, the inference that may be drawn from the evidence,

and the legal principles involved in the case. State v. Green, 2009 MT 114, ¶ 33, 350

Mont. 141, 205 P.3d 798. While it is generally improper for the prosecutor to offer her

personal opinion on the credibility of a witness or of the accused, Lindberg, ¶ 34, the

prosecutor may point out conflicts and contradictions in the testimony, comment on the

evidence and suggest inferences that may be drawn. Green, ¶ 33.

                                             8
¶19    In the present case, Branham’s objection at trial and on appeal was that the

prosecutor had “misstated” the evidence about the knife in the defense photograph.

Branham has not made a convincing argument that anything the prosecutor said about

this matter constituted improper argument. Branham raised the issue of the knife seized

by the police during questioning of Kinross-Wright’s ex-girlfriend, had the photograph

of the knife admitted into evidence, and then argued that the State was ignoring the knife

“issue.”

¶20    A prosecutor is “entitled to some latitude in his argument” about credibility and

about the evidence. Green, ¶ 34. The prosecutor’s arguments were based upon a

reasonable interpretation of the potentially confusing evidence and argument presented

by the defense. Branham has failed to demonstrate that the prosecutor said anything that

was improper and so has failed to demonstrate that he was denied a fair trial.

¶21    Branham next contends that the prosecutor made improper argument by stating her

personal assessment of credibility.    This arose from blood residue evidence, which

showed that Kinross-Wright’s blood was found on the seat of Branham’s car.             The

prosecutor argued that the presence of the victim’s blood in that location was consistent

with the State’s theory that Branham first inflicted the fatal stab to the stomach, causing

Kinross-Wright to fall across Branham’s back and bleed on him. When Branham sat in

his car, he transferred Kinross-Wright’s blood to the seat. The defense countered that this

was a “quibble” about the evidence and that no one knows what really happened. The

prosecutor rebutted that two people know what happened, that one of them is dead, and



                                             9
that “the other one is sitting over there telling you things that aren’t true that are

contracted by the . . . .”

¶22    The defense objected at that point on the ground that the prosecutor was

improperly injecting her personal opinion. The District Court overruled the objection,

stating that the jury could “make their own decisions” about the evidence. The District

Court subsequently instructed the jury that they were the sole judges of the credibility of

the witnesses who testified at trial.

¶23    Branham has failed to carry his burden to demonstrate that the prosecutor engaged

in improper argument in this instance. It is clear that the point the prosecutor was making

when interrupted by the objection was that Branham’s version of events was not true

because it was contradicted by the blood evidence. This was not an improper injection of

the prosecutor’s personal belief as to the credibility of the witness. A prosecutor is

entitled to point out inconsistencies in the evidence and to argue which version is the

truth. Green, ¶ 34. The prosecutor did not engage in improper argument and Branham

was not denied a fair trial.

¶24    Issue Three: Whether the District Court provided sufficient reasons for limiting

parole eligibility.

¶25    The District Court imposed a sentence of 40 years at Montana State Prison with no

time suspended, and declared Branham ineligible for parole. The District Court stated at

sentencing:

       The reason for the not-eligible-for-parole restriction is based upon the
       protection of society, your extensive history of drugs and alcohol use and
       the circumstances of the offense.
                                            10
Similar language was included in the written sentencing order. Branham contends that

the District Court failed to comply with the requirement of § 46-18-202(2), MCA, that

the reasons for a parole restriction be stated in writing. He also contends that the

sentence was based upon misinformation as to his drug and alcohol use.

¶26   We review criminal sentences for legality. State v. Hill, 2009 MT 134, ¶ 19, 350

Mont. 296, 207 P.3d 307. A sentence that falls within statutory parameters is not an

illegal one. State v. Kotwicki, 2007 MT 17, ¶ 13, 335 Mont. 344, 151 P.3d 892.

¶27   The sentence in Branham’s case was within the statutory power of the District

Court. A person convicted of mitigated deliberate homicide may be sentenced to the

state prison for a term of 40 years, § 45-5-103, MCA, and the district court may limit

parole eligibility, § 46-18-202(2), MCA. The District Court clearly gave written reasons

for the parole restriction and therefore complied with the statutory requirement. We have

upheld sentences with similarly brief stated reasons. State v. Kratz, 241 Mont. 501, 505,

788 P.2d 298, 301 (1990).

¶28   Branham also contends that his sentence was based upon misinformation about

drug and alcohol use.       While a defendant may not be sentenced based upon

misinformation, a defendant seeking to overturn a sentence has an affirmative duty to

demonstrate that the disputed information was materially inaccurate. State v. Phillips,

2007 MT 117, ¶ 17, 337 Mont. 248, 150 P.3d 1078. In the present case there was ample

information in the presentence investigation report as to Branham’s history of use,

beginning with marijuana when he was nine and alcohol at age 13 and continuing


                                           11
thereafter. There was evidence that he drank the night of the offense. Branham has not

demonstrated that the information on drug and alcohol use before the District Court was

materially inaccurate.

¶29    The conviction and sentence are affirmed.



                                               /S/ MIKE McGRATH


We concur:


/S/ BRIAN MORRIS
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ JIM RICE




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