Lee R. KERR

ROSEBUD COUNTY ATTORNEY

Rosebud County Courthouse

P.O. Box 69

Forsyth, Montana 59327

(406) 356-2236

Attorney for Plaintiff

MONTANA SIXTEENTH JUDICIAL DISTRICT, ROSEBUD COUNTY

STATE OF MONTANA )

)

Plaintiff, ) CAUSE NO. DC 96-01

)

vs. ) STATE’S REPLY TO DEFENSE’S

) MOTION TO DISMISS ALTERNATIVE

DAVID BARA, ) AGGRAVATED ASSAULT CHARGES

) AND BRIEF IN SUPPORT OF MOTION

Defendant, )

COMES NOW, the State of Montana, by and through Lee R. Kerr, Rosebud County Attorney, and responds to Defendant’s motion to dismiss alternative aggravated assault charges in Counts’ I, II, and III of the Information. The State contends that the Defense has omitted key portions of relevant statutory law, case law, the nature of the counts, and what is required by the affidavit in support of the information.

ARGUMENT:

SERIOUS BODILY INJURY

The Defendant begins by an incomplete quotation to the 1993 code, which completely omits subsection (iii) of subparagraph (59) to MCA 45-2-101. The applicable statute in effect at the time of this offense was 45-2-101(64) which reads as follows:

45-2-101 M.C.A.(64) (a) "Serious bodily injury" meansbodily injury that: (I) creates a substantial risk of death;

(ii) causes serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ; or (iii) at the time of injury, can reasonably be expected to result in serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ. (b) The term includes serious mental illness or impairment.

As the Court can see, the Defendant has completely omitted the language that provides “at the time of injury, can reasonably be expected to result in serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ.”

Further, the following points and authorities are relevant to the Defendant’s claims:

In Goodwin, the Defendant was charged with and pleaded guilty to aggravated kidnaping and sexual intercourse without consent. After sentencing, the defendant contended that there was insufficient evidence to support the District Court's finding that the victim suffered serious bodily injury, an element increasing the possible sentence. Serious bodily injury is defined as injury creating a substantial risk of death or which causes serious permanent disfigurement. The Supreme Court found that the victim had suffered a serious internal laceration requiring major surgery. Two physicians testified that the victim had faced a substantial risk of death from possible infection. The record also showed thatpermanent serious disfigurement had been inflicted on the victim. There was sufficient evidence to support the finding of serious bodily injury. St. v. Goodwin, 208 M 522, 679 P2d 231, 41 St. Rep. 508 (1984).

In Fuger, evidence was that after being kicked by defendant complainant, the victim, was admitted to the emergency room in Hamilton in a semiconscious state, with extensive bruises and swelling around the face, a broken nose, and a fractured palate. The examining physician testified that complainant was transferred to Missoula because the facilities at Hamilton were not equipped "to handle seriously injured or gravely injured headtype cases" was sufficient to enable jury to find that complainant's injuries created a "substantial risk of death" although no serious complications actually resulted. St. v. Fuger, 170 M 442, 554 P2d 1338 (1976).

The New York court has held that a defendant who caused protracted impairment of function of complainant's eye could be found guilty of causing "serious physical injury" (defined as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ"). People v. Rumaner, 45 A.D.2d 290, 357 N.Y.S.2d 735 (1974).

In Fuger, the question of whether the victim of an assault incurred a "substantial risk of death" as a result of his injuries is one fact to be determined by the jury and does notdepend on whether the victim ultimately lives or dies. St. v. Fuger, 170 M 442, 554 P2d 1338 (1976).

Thus, in this case, the Court should readily see that the injury, received by the victim at the time of the offense, was expected to result in serious permanent disfigurement or protracted loss of impairment of the function of any process or body member or organ or create a substantial risk of death from the facts stated in the affidavit.

Further, it is a question for the jury to determine. The information and affidavit in support adequately puts the Defendant on notice that the injuries that were received placed the injuries to the victim within the classification of serious bodily injury. The burden will be upon the State to prove serious bodily injury at trial, and the Defendant has by the pleadings been given adequate notice of the nature and extent of the injuries.

Information and Affidavit

The following cases are relevant to the Court’s determination of the adequacy of the State’s information and affidavit in support thereof:

In Hamilton, the Defendant, charged with mitigated deliberate homicide, argued that the affidavit in support of the application for leave to file an information was insufficient without statements which were suppressed on his motion being included. The court disagreed, saying that a prima facie case showing that defendant committed an offense was not necessary in the affidavit. A mere probability is sufficient for probable cause.Evidence to establish probable cause need not be as complete as evidence to establish guilt. Judges reviewing such affidavits should use their common sense in determining whether probable cause exists. There is no requirement that the affidavit claim that no other persons had access to the home where the deceased was found. The court concluded that a commonsense reading of the affidavit, with the parts objected to deleted, indicates that the statutory and decisional guidelines were more than adequately met by the affidavit. St. v. Hamilton, 185 M 522, 605 P2d 1121 (1980).

In Bretz, the affidavit in support of a motion for leave to file an information charging defendant with larceny by bailee under section 942701, R.C.M. 1947 (now repealed), listed the alleged victims and set out three fact situations alleging the issuance of insurance settlement checks. The affidavit also allowed that the victims had sometime thereafter received their portion of the settlement, with or without an accounting from the defendant, or had not received any portion of the settlement. This was held sufficient to establish probable cause given the improbability that the facts alleged resulted from innocent bookkeeping errors or clerical mistakes. St. v. Bretz, 185 M 253, 605 P2d 974 (1979)

In Longneck, the Motion for leave to file information served as the supporting affidavit for the information, and could thus be considered in determining the meaning of the language contained in the information, because an affidavit supporting a motion for leave to file an information may be considered indetermining the meaning of the language contained in the information. St. v. Longneck, 196 M 151, 640 P2d 436, 38 St. Rep. 2160 (1981), affirmed, 201 M 367, 654 P2d 977, 39 St. Rep. 2170 (1982), followed in St. v. Madera, 206 M 140, 670 P2d 552, 40 St. Rep. 1558 (1983).

In McKenzie, a certified motion for leave to file a second amended information, which was signed by the County Attorney but not supported by separate affidavit, was sufficient by itself as an affidavit within the meaning of this section. State ex rel. McKenzie v. District Court, 165 M 54, 525 P2d 1211 (1974).

The Supreme Court concluded that the lower court properly relied on the presence of probabilities in finding probable cause to believe that an offense was committed by the defendant, in light of the large array of facts presented by the County Attorney when seeking leave to file the information. St. v. McGuinn, 177 M 215, 581 P2d 417 (1978).

In Bradford, the court held that an affidavit in support of a motion to file an information need not make out a prima facie case that a defendant committed an offense; a mere probability that the defendant committed the offense is sufficient. Similarly, evidence to establish probable cause need not be as complete as the evidence necessary to establish guilt. The scope of appellate review of a District Court's ruling on a motion to file an information is limited to whether or not the District Court abused its discretion. St. v. Bradford, 210 M 130, 683 P2d 924, 41 St. Rep. 962 (1984), followed in St. v. Arrington, 260 M 1, 858 P2d343, 50 St. Rep. 905 (1993).

Therefore, the State’s information and affidavit in support states a probability that the victim received at the time of injury either a substantial risk of death, or an injury that could reasonably be expected to result in serious permanent disfigurement or protracted loss or impairment of the function of the process of any bodily member or organ. The victim suffered a laceration that may lead to permanent disfigurement or could cause permanent disfigurement, at the time of injury, without later cosmetic surgery. Burns that were suffered by the victim, that resulted in a need to transport the victim to a burn center out of state, and broken bones suffered by the victim, that could lead to disfigurement or protracted loss of or impairment of function or loss of use at the time of injury, are all stated in the affidavit in support of leave to file, and are sufficient to state a probability that the defendant committed the stated offenses, giving the Defendant adequate notice of the offenses that he has been charged with. Lastly, these are questions of fact for the jury to address at trial.

THEREFORE, the State request that the Defendant’s motion be denied.

DATED this day of January, 1996.

LEE R. KERR

ROSEBUD COUNTY ATTORNEY