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FORT PECK COURT OF APPEALS
ASSINIBOINE AND SIOUX TRIBES
FORT PECK INDIAN RESERVATION
POPLAR, MONTANA
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    FOR APPELLANT/PLAINTIFF: RON ARNESON, Special Tribal Prosecutor, P.O. Box 1027, Poplar, Montana 59255

    FOR APPELLEE/DEFENDANT: Clayton Reum, Lay Advocate, 821 6th Ave. South, Wolf Point, Montana 59201

    CRIMINAL: FEDERAL RULE OF EVIDENCE 404(a) (2) PERMITS CHARACTER EVIDENCE OF VICTIM OF CRIME OFFERED BY AN ACCUSED; IN ALL CRIMINAL PROCEEDINGS, THE TRIBES MUST SUSTAIN ITS BURDEN OF PROOF AS TO ALL THE ELEMENTS OF THE OFFENSE CHARGED; AND ONLY THE ACCUSED’S TESTIMONY IS NOT THE SUFFICIENT EVIDENCE OF A DEFENSE CONTEMPLATED BY III CCOJ 103(b).

    Argued:     October 27, 1989            Decided:     January 3, 1990

    OPINION by Arnie A. Hove, Chief Justice, joined by Gary James Melbourne, Associate Justice and Floyd Azure, Associate Justice.

    HELD: THE APPELLEE’S JUDGMENT OF "NOT GUILTY" FOR SIMPLE ASSAULT OF VANESSA EAGLE ON FEBRUARY 6, 1989 IS HEREBY REVERSED AND A JUDGMENT OF "GUILTY" ENTERED. THIS MATTER IS REMANDED TO TRIBAL COURT FOR IMPOSITION OF AN APPROPRIATE SENTENCE WHICH IS TO INCLUDE RESTITUTION TO THE VICTIM AND COUNSELING WITHIN TEN (10) DAYS OF THE FILING OF THIS OPINION.

FACTS:

    On February 6, 1989, the defendant was charged by a Criminal Complaint with Simple Assault a violation of III CCOJ 215. The Criminal Complaint was signed by Vanessa Eagle. Vanessa Eagle alleged defendant kicked and hit her. Vanessa Eagle further alleged that as a result of the incident some of her teeth were knocked out and she had to go to a dentist and have the roots pulled and stitches put in her mouth.

    A trial was scheduled for July 6, 1989 at 1:30 p.m. Defendant filed to appear. A Warrant to Apprehend dated July 7, 1989, was served upon defendant July 10, 1989 for his failure to show for the trial. On July 20, 1989, the bench trial was held and defendant found "not guilty". From this judgment the Tribes appeal.

    On appeal, the Tribes raised the following issues:

Whether the Tribal Court committed reversible error when it allowed into evidence character evidence of the victim?

Whether the Tribe met its burden of proof and proved each element of the Simple Assault by defendant and defendant should be found guilty thereof.

    A transcript of the July 20, 1989 proceedings was available which enables this Court to thoroughly address the Tribes issues.

I.

    Defendant was charged with Simple Assault, a violation of III CCOJ 215.  This section reads in applicable part as follows:

    "A person who

    "(a) intentionally causes bodily injury to another; or

    "(b) recklessly or negligently causes bodily injury to another with a deadly weapon; or

    "(c) attempts by physical menace to put another in fear of serious bodily harm, or be physical menace causes another to harm himself/herself

" is guilty of an assault.

"...."

    On July 20, 1989, there was a judgment of "not guilty" entered by Chief Judge Bemer after a bench trial. The Tribes have the right of appeal as provided for under I CCOJ 205(a). This section reads as follows:

    "The defendant in a criminal case shall have an appeal as of right from a judgment of conviction. The Tribe shall have no right of appeal from a jury verdict of "not guilty" in criminal cases, but shall have a right of appeal from a judgment of "not guilty" rendered by the Tribal Court without a jury. Appeals in criminal cases shall be taken as provided in Section 206. (Emphasis Added.)

    Upon the granting of an appeal, the jurisdiction and extent of this Court’s review is established in I CCOJ 202. This section reads in applicable part as follows:

    "The jurisdiction of the Court of Appeals shall extend to all appeals from final orders and judgments of the Tribal Court. The Court of Appeals shall review de novo all determinations of the Tribal Court on matters of law, but shall not set aside any factual determinations of the Tribal Court if such determinations are supported by substantial evidence...."

    In the instant case, the Tribes complain the Tribal Court erred by allowing into evidence character evidence of the victim. This determination of the Tribal Court is a matter of law and will be reviewed de novo by this Court.

    In reviewing the transcript, the Tribal Court did permit character evidence on the victim’s previous drinking and fighting with defendant. The relevant portion of the transcript read as follows:

        [Transcript, p. 20, 1. 18 through p. 22, 1. 10.]

    This Court has previously recognized and adopted the Federal Rules of Evidence. (See Fort Peck Assiniboine and Sioux Tribes vs. McDonald, Appeal No. 039, March 31, 1988. Affirmed in Fort Peck Assiniboine and Sioux Tribes vs. Ronald Keiser, Appeal No. 038, August 4, 1988.) Federal Rule of Evidence 404(a) (2) sets forth when character evidence of a victim is admissible and reads:

"Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

"...

"Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

"...."

    The accused offered evidence the victim was drunk and had fought with him on the day in question and on previous occasions. In that regard, the evidence would have been admissible under Federal Rules of Evidence 404(a)(2). Therefore, the Tribal Court did not commit reversible error when it allowed into evidence character evidence of the victim by way of testimony from the accused. However, the Tribal Court erred in the amount of weight given to the testimony of the accused as will be discussed in the next issue.

    Before concluding the discussion on this issue, this Court must address a possible error by the Tribal Court judge which is evident from the judge’s comments in the portion of the transcript set out above. The Tribal Court judge may have erred in not disqualifying himself pursuant to I CCOJ 307 since he admitted to personal knowledge of both people which implies "personal knowledge of disputed evidentiary facts concerning the proceeding". Because the Tribal Court judge may have erred in not disqualifying himself pursuant to I CCOJ 307 he must clarify if his personal knowledge of the people includes knowledge of disputed evidentiary facts concerning the proceeding before hearing anything further in this matter.

II.

    In addressing issue no. 2, under I CCOJ 202 this Court shall not set aside any factual determinations of the Tribal Court if such determinations are supported by substantial evidence. The Court finds the Tribal Court erred in entering a judgment of "not guilty" when the Tribe met its burden of proof and proved each element of the Simple Assault by defendant. Therefore, this Court has the right to set aside any factual determinations of the Tribal Court not supported by substantial evidence.

    This Court recognizes defendant asserted a defense during Tribal Court proceedings. Although the defendant asserted a defense of self defense for his assault upon the victim, the only evidence offered was defendant’s testimony most of which corroborated the victim’s testimony and the significance of this will be discussed below.

    In the instant case, the Tribes’ burden of proof and defendant’s introduction of evidence of a defense is governed by

III CCOJ 103. This section reads in full as follows:

    "(a) The Tribes have the burden of proving each element of an offense beyond a reasonable doubt.

    "(b) Whenever the defendant introduces sufficient evidence of a defense to support a reasonable belief as to the existence of that defense, the Tribes have the burden of disproving such defense beyond a reasonable doubt, unless this Code or another ordinance expressly requires the defendant to prove the defense by a preponderance of evidence.

    The elements of the offense of Simple Assault were previously set out. The following will address each element and the evidence offered by the Tribes and proved the same. The Tribes proved defendant intentionally caused bodily injury to the victim in her home in the following:

        [Transcript p. 10, 1, 4-5.]

    The Tribes proved defendant intentionally caused bodily injury to the victim. The Tribes also proved the victim sustained medical bills as a result of the defendant’s intentional acts. Finally, the Tribes proved the victim was not so much out for vengeance but for restitution and counseling for defendant. This proof is set forth in the following:

        [Transcript, p. 16, 1. 13 through p. 20, 1. 5.]

    In addition to the above, the victim admits defending herself but denied the use of any knife in the following:

        [Transcript, p. 23, 1. 6-13.]

    Defendant then corroborated much of the victim’s version of events while raising the issue of self defense. The evidence of self defense presented by defendant is only his testimony which went as follows:

        [Transcript, p. 34, 1. 8 through p. 35, 1.17.]

    In addition to the above, defendant admitted agreeing to and actually paying towards the victim’s injuries. This portion of defendant’s testimony went as follows:

        [Transcript, p. 37, 1. 17-24.]

    In viewing the above testimony in the light most favorable to defendant and applying III CCOJ 103(b), defendant did not introduce sufficient evidence of self defense with only his testimony to support a reasonable belief as to the existence of that defense.

    First, the knife (or an injury from a knife however slight) was never produced by defendant. Second, defendant made no effort to leave the victim’s premises when this knife was allegedly produced by the victim, but admittedly proceeded to attack the victim and inflicted serious injuries to the victim. Third, defendant never immediately reported the alleged knife attack as he would have been reasonable expected to do in light of the injuries he alleged were necessary to inflict on the victim. Finally, defendant could not reasonably be expected to voluntarily agree to pay victim (or anyone else) for damages he necessarily inflicted as a result of the person’s own knife attack.

    In conclusion, because the Tribes met their burden of proof and defendant did not introduce sufficient evidence of self defense, the Tribal Court erred in finding defendant "not guilty" of Simple Assault. Therefore, based on this Court’s reasoning in Fort Peck Assiniboine and Sioux Tribes vs. John Stormy, Appeal No. 075, June 23, 1989, the only remedy available is that the judgment of "not guilty" be and the same hereby is set aside and judgment entered that defendant Darrell Reddog is "guilty" of Simple Assault on the victim Vanessa Eagle on February 6, 1989.

_______________________________________________________________________________

IT IS THE UNANIMOUS DECISION OF THIS COURT THAT DEFENDANT DARRELL REDDOG IS HEREBY "GUILTY" OF SIMPLE ASSAULT ON THE VICTIM VANESSA EAGLE ON FEBRUARY 6, 1989. THIS MATTER IS REMANDED TO THE TRIBAL COURT FOR IMPOSITION OF AN APPROPRIATE SENTENCE WHICH IS TO INCLUDE RESTITUTION TO THE VICTIM AND COUNSELING WITHIN TEN (10) DAYS OF THE FILING OF THIS OPINION.

    DATED this _____ day of January, 1990

BY THE COURT OF APPEALS:

_____________________________
Arnie A. Hove, Chief Justice

_____________________________
Gary James Melbourne, Associate Justice

_____________________________
Floyd G. Azure, Associate Justice

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