*1 MONTANA, STATE OF Respondent, Plaintiff Appellant. THOMAS J. CYR, Defendant 87-249. No. Submitted on Briefs Oct. 1987. Dec. 1987. Decided Anaconda, Mackay, C.F. for defendant and Helena, Atty. Gen., Roberts, Gen., Greely, Atty. Mike Joe R. Asst. Radonich, Anaconda, plaintiff John N. Atty., Co. respondent. Opinion
MR. JUSTICE HARRISON delivered the Court. of the Third Judicial This is an from the District Court Montana, County of Deer District of State of in and Lodge, presiding. appellant was Boyd the Honorable Robert felony, charged aggravated with the crime of in violation *2 guilty by jury after a of Section MCA. He was found a day of was five the crime of assault. Thereafter a notice The requesting newly on evidence. filed a new trial based discovered by followed. motion was denied the District Court and We affirm. wife, met
Testimony Cyr, appellant’s indicates that Brenda bar, Anaconda, Montana, Butte, on two men from Montana at an men, Spolar, he under- 1986. One of the Mark testified that separated. During af- stood that the Brenda and her husband were 25, 1986, Brenda, company Spolar of June in of and ternoon the others, frequented city Throughout in of Anaconda. several bars the evening, the the late afternoon encounters were had with and several appellant trying get who home. In one of the was to his wife to come encounters, car, her jerked to Brenda went over the he her, around, grabbed by all made her the throat and cursed of which accompany appellant to home. her more their reluctant to early eve- frequenting After several bars of the afternoon and most to ning, Spolar, motorcycle with his club friends decided several of outside, them, they getting of return to Butte. When went one off, in motorcycle by appellant his starting pursued on was over. appeared attempt This to be to run them car. to them appellant where During the to one of bars when went them, group he partying, and after had confronted several appellant, reported seeing gun group several members However, sev- though threatening he did in a manner. not use it armed. This called eral of the members were alerted that he was discussion, down attempt run particularly some after his to motorcyclists. Madrid, Shepard, time, and Brian closing Spolar, At Mark Manuel ap- Bar, they again went outside the encountered Garden where obtained pellant, by that time had seated in his car. Manuel Madrid party, so Woodbury, in gun from the women a hand Jean one of they con- “equal case were protection” would some time, Spolar by confronted appellant. fronted About attempted him his car appellant get out of his and he car process ap- kicked out at least one window. At that time the pellant pistol, hitting Spolar fired his groin Mark area. Sev- by appellant, eral more shots were fired and at that time Manual opened by Madrid fire on the One of the shots fired Ma- appel- drid wounded son small who was seated inside the lant’s car. investigation
An appellant followed and the and Madrid were both charged by Lodge County. authorities Deer re- year years Also, ceived a nine suspended. sentence with four his sen- tence years, was enhanced an additional three to be served con- secutively sentence, with the above for the use of a firearm in the commission of the offense.
Three issues are for review this Court: (1) Whether jury upon sufficient evidence before the which to base their verdict.
(2) Did the District in refusing grant appellant’s Court err mo- tion to dismiss at the close of the State’s case?
(3) Did the refusing District Court err in motion for a new trial on the basis of discovered evidence? there is no dis pute shot Mark There were witnesses Spolar effect, other than is sufficient *3 of itself to convict. kicking activities in out the window were sufficient, not and were not found to be jury, sufficient for the open fire, shooting through the door of his car and seri ously wounding This is a jury. heard the evidence in five-day trial and their verdict indicates that listening after to all appellant guilty. found the
In proving offense of prove the State had to (1) following cause; (2) elements: purposely knowingly bodily or in- (3) jury; (4) another; weapon. with a Section MCA. (Mont. State v. Oliver In 1987), 322,] 999, Mont. 742 P.2d [228 1002, St.Rep. 1567, 1572, 44 we stated:
“The standard for review of the of the evidence is: “Whether, viewing the evidence in the most favorable to prosecution, any rational trier of fact could have found the es- sential Jackson beyond elements of the crime a reasonable doubt.” Virginia (1979), 307, 319, 2781, 2787, 443 U.S. 99 S.Ct. 61 L.Ed.2d 560, 573.
Under this legal support standard there was sufficient evidence to jury’s 340 properly
The second is whether court denied defendant’s closely motion to dismiss. Here the is tied convict. As the first issue where we found sufficient evidence to support substantial evidence to noted there was credible correctly charges and trial denied therefore the court motion. 3, properly deny did the motion new trial?
Issue the court for a 46-16-702, MCA, provides for granting Section of a motion justice.” “in the Where the the motion new trial interest of basis for long-standing criteria newly-discovered for new trial is in State evaluating the motion has been set forth this Court (1959), 580, 1052. In Greeno this v. Greeno 135 Mont. following Court established the criteria: “(1) knowledge must to the That evidence have come trial; (2) of dili- applicant through since that it was not want earlier; (3) gence it was that it is so material that not discovered trial; upon probably produce it would result another that different — (4) is, merely speak as to that it is not that cumulative trial; (5) in relation to at the facts which evidence whose application must affidavit of the witness be discovered, ac- evidence is to have been or its absence for; (6) only not be as will counted the evidence must such impeach or tend to the character credit of witness.
Greeno, 586, All 135 342 at 1055. six of the criteria Mont. at P.2d below, fails to conjunctive, are stated noted defendant as at least establish the first three. 483, 346, 351,
In State v. Lewis (1978), 582 177 P.2d Mont. within the a new trial lies Court the decision to held appeal un- discretion of and will not be disturbed is have also noted less a clear abuse of discretion shown. We are not newly-discovered motions for a new based on evidence trial, time, prior to already had favored because defendant has Greeno, crite- supra. cited the prepare his Two recent cases case. (Mont. 1984), Kutnyak 155,] in Greeno. 685 State v. Mont. ria [211 (Mont. State v. Short 901, 909, 1277, 1287; St.Rep. 41 P.2d In 1985), 979, 984, 62,] St.Rep. Mont. P.2d [217 criteria, but we Kutnyak, necessary only it was to cite three *4 appropriate. note that all six are criteria, we Greeno
Noting the evidence was ob- previously hole unfound note a bullet in the car opportu- ample by appellant’s He had during served counsel trial. firearms, nity expert the State’s witnesses on but now alleges appreciate significance he did not of that evidence. How- ever, impounded shooting, vehicle had been on the inspection and was available for and examination appellant during period Having the whole failed some six months. forward, bring the evidence is not sufficient to set aside the verdict. evaluating newly-discovered the second criterion for
evidence, earlier, regarding whether it could have.been discovered had considerable time to find this evidence. Much of analysis applies the above Having bring here. failed to it to the at- tention of the court such failure comes too late this trial to set aside the verdict.
A presence third criterion is that must show that the probably produced evidence at trial would a different re- sult. As noted supporting no other evidence at trial claiming Spolar gun contention that he now makes had a at approached the time he vehicle. This “new evidence” disputed favor, point resolve a in the rather it attempts entirely to raise an new issue which is not any Further, other facts in evidence. this “new evidence” is not nec- essarily inconsistent with the of the trial. Manuel Madrid apparently fired four shots at the vehicle and some were angle fired from appellant sped away behind the vehicle as the from the scene of the trouble.
The trial heard the for a new trial and against ruled following: that motion and stated the certainly “There any has not diligence been exhibition of exam- ining vehicle, impounded because the Court it on or notes was June, about subsequently the 27th of made available to the wit- State, ness just readily any as it was available for that the present. defendant wished to this is fact It does notthat is, most, fully explored new but evidence which was not Defendant, and the Motion for New Trial is denied. The decision of the District Court is affirmed.
MR. CHIEF GUL- JUSTICE TURNAGE and MR. JUSTICES BRANDSON and McDONOUGH concur. SHEEHY, specially concurring:
MR. JUSTICE agree I with the result based