State v. Tonkovich , 221 Mont. 8 ( 1986 )

No. 85-415
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1986
S T A T E O F MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
SERENA TONKOVICH, a / k / a
SERENA EARLEY,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e T h i r d J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of D e e r L o d g e ,
T h e H o n o r a b l e R o b e r t B o y d , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
C. F. M a c k a y , A n a c o n d a , Montana
For R e s p o n d e n t :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l . , H e l e n a , M o n t a n a
?atricia Schaeffer, A s s t . A t t y . G e n e r a l , H e l e n a
J o h n N. R a d o n i c h , C o u n t y A t t o r n e y , A n a c o n d a , M o n t a n a
M a r j o r i e L. Thomas, Deputy County A t t o r n e y , Anaconda
C
S u b m i t t e d on B r i e f s : Jan. 23, 1 9 8 6
Filed: APR 9 - 1986
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
Serena Tonkovich appeals from her conviction of aggra-
vated assault in the District Court for the Third Judicial
District, Deer Lodge County. We affirm.
The sole issue raised on appeal is whether there is
substantial evidence to support the findings and conclusions
of the District Court.
This case was tried to the District Court rather than to
a jury, and the court prepared extensive findings of fact,
many of which are basically uncontraverted. The court found
that Serena Tonkovich and the victim, Rita Lee, had once been
friends, but for almost two years had not been on speaking
terms. On the evening of this incident, both women were
bar-hopping in Anaconda. Each of them presented testimony
that she was trying to avoid the other that evening. At the
time of the incident, Rita Lee had iust walked out of a bar
and Serena Tonkovich was outside in her car. Serena shot a
.25 caliber automatic pistol at Rita Lee, wounding her in the
leg.
At trial, Serena Tonkovich raised a defense of self-de-
fense. She argues that she met her burden of proof, which
she correctly states as raising a reasonable doubt as to her
guilt. State v. Cooper (1979), 180 Mont. 68, 73, 589 P.2d
133, 136. However, our function on appeal is not to deter-
mine whether she raised a reasonable doubt as to her guilt,
but to determine the sufficiency of the evidence to support
her conviction. The standard of review is whether, viewing
the evidence in the light most favorable to the State, there
is substantial evidence to support the conviction. State v.
Lamb (Mont. 1982), 646 P.2d 516, 518, 39 St.Rep. 1021, 1024.
Disputed questions of fact and the credibility of witnesses
will not be considered on appeal. State v. DeGeorge ( 1 9 7 7 ) ,
173 Mont. 35, 38, 566 P.2d 59, 60.
Serena Tonkovich's testimony was that she was afraid of
Rita. Lee, that she had started her car to leave but it had
stalled, that Rita Lee and another woman were coming toward
her yelling obscenities, that she thought Rita had something
in her hand, and that she attempted to warn Rita Lee away by
shooting at the ground in front of her. She was then able to
get her car started, and drove away.
The testimony relied upon by the District Court included
the following: Rita Lee testified that she went outside the
bar to get some fresh air because she was feeling ill. She
testified that she was alone and did not have anything in her
hands. She heard a car engine rev and then recognized the
car as Serena Tonkovich's. She saw Serena, who was in the
driver's seat, point a gun at her and shoot twice. Serena
then drove away. During this time, Serena Tonkovichls male
friend was standing next to Serenals car, between the car and
Rita Lee. He testified that he sa.w Rita Lee come out of the
bar, and that he saw nothing in her hand. After he heard the
shots, he told Serena she was stupid for firing the gun, and
went into the bar.
In resolving the conflicting testimony, the District
Court concluded that:
[tlhe facts conclusively demonstrate that
there was no imminent threat of an attack
by the victim, Rita Lee, or even the
appearance of the necessity for the use
of deadly force, or any physical peril to
the Defendant, Serena Tonkovich . . .
since no w0rd.s were spoken, no threat
issued and the Defendant was in her
automobile, with a friend . . . who had
previously demonstrated his willingness
to prevent any type of confrontation
between the Defendant and others, includ-
ing the victim, Rita Lee.
The D i s t r i c t Court held that S e r e n a Tonkovich was n o t
justified i n using force l i k e l y t o cause death o r serious
bodily harm. The record contains s u b s t a n t i a l evidence to
s u p p o r t t h e f i n d i n g s o f f a c t and c o n c l u s i o n s o f t h e D i s t r i c t
Court. We therefore affirm the judgment of the District
Court.
W e Concur:
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