STATE OF MONTANA v. GREGORY M. SMITH,

Helena, Montana - Criminal defense attorney represented Gregory Smith with the offense of partner family member assault (PFMA) charge.

On March 10, 2018, Molly Busby-Schroeder (Schroeder) called 911 and reported

that she had been assaulted. She requested help and was heard asking Smith to move his

foot so that she could close the bedroom door. Schroeder advised dispatch that there were

weapons in the home.

¶4 Upon arrival, officers spoke with Smith and Schroeder separately. Smith appeared

agitated but told officers that nothing had happened. Smith stated that he and Schroeder

had been dating for approximately seven years and also lived together. After further

questioning, Smith admitted that an argument occurred after Schroeder arrived home an

hour later than he expected. Smith stated that he cooked dinner and Schroeder would not

get off her computer. Then he asked her to leave his house because she was being a "bitch.”

¶5 Schroeder told officers that the argument started after she arrived home and would

not cook Smith dinner. Smith was close enough to Schroeder that he was spitting on her

while yelling and she put her hand up to block it. Smith knocked Schroeder's hand out of 3

the way and headbutted her. Schroeder went into a bedroom and tried to close the door,

but Smith blocked it with his foot. Schroeder was scared for her safety. Smith was arrested

for PFMA and transported to Gallatin County Detention Center.

¶6 At trial in City Court, Schroeder testified that she and Smith began dating in 2013

and moved in together in 2015 or 2016. At the time of the incident, Schroeder and Smith

were not sharing a bedroom. When Schroeder arrived home later than expected, Smith

was angry. Schroeder moved towards her bedroom as the argument escalated, and Smith

continued to yell and pushed her towards the front door of the house. Smith was screaming

at Schroeder and spit was hitting her face. Schroeder put her arms up to block the spit, and

testified, "[He] grabbed my arms and threw them down . . . then he rammed his head into

my head and said, 'no bruises' and he laughed, turned around, and walked away and I went

into the bedroom to grab my phone to call 911.”

¶7 Schroeder testified that she was in pain immediately following the incident and that

she felt "scared out of [her] mind.” She testified that she called 911 because she was scared

for her life. The State played the 911 recording which was admitted into evidence. The

following morning, Schroeder felt pain and soreness in her arms. She also continued to

have head pain. Schroeder noticed swelling in her arms a couple of days later and saw

bruising. She documented the bruising by taking a photograph that was admitted into

evidence.

¶8 Two of the officers who had arrived on the scene after the incident testified at trial.

One testified that Schroeder was in tears and appeared to be extremely stressed. The other

officer testified that he spoke with Smith and that Smith appeared agitated and angry. 4

Smith's statement to the officer had been recorded and was admitted into evidence. Smith

said on the recording that Schroeder was irrational and "being a bitch.”

¶9 Smith testified that he and Schroeder got into an argument but denied that he was

physically violent. Smith admitted that he told officers that Schroeder was being irrational

and "a complete bitch.” He also admitted to getting upset and yelling at Schroeder.

¶10 The jury convicted Smith of PFMA. He appealed to the District Court, which

affirmed the conviction.

¶11 Smith argues that the State failed to produce sufficient evidence to support his

conviction, that the prosecution committed prosecutorial misconduct, and that the District

Court erred by including moving expenses as an element of restitution.

¶12 We review questions on the sufficiency of the evidence in a criminal matter to

determine whether, after reviewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt. State v. Spottedbear, 2016 MT 243, ¶ 8, 385 Mont. 68, 380

P.3d 810 (citation omitted). "A person commits the offense of partner or family member

assault if the person: (a) purposely or knowingly causes bodily injury to a partner or family

member. . .” Section 45-5-206(1)(a), MCA. "Partner” includes persons who have been in

a dating or intimate relationship. Section 45-5-206(2)(b), MCA. "Bodily injury” means

"physical pain, illness, or an impairment of physical condition and includes mental illness

or impairment.” Section 45-2-101(5), MCA. 5

¶13 Both parties agree that they had been dating or in an intimate relationship. Based

on Schroeder's testimony, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.

¶14 Smith argues that the prosecutor committed prosecutorial misconduct by using the

word "victim” at trial when referring to Schroeder because by doing so the prosecutor was

offering an opinion on Schroeder's credibility. Generally, we decline to address issues of

prosecutorial misconduct that were not objected to at trial. State v. Lawrence, 2016 MT

346, ¶ 6, 386 Mont. 86, 385 P.3d 968. Smith does not meet the burden of showing that his

fundamental constitutional rights were violated when the prosecutor referred to Schroeder

as a "victim” and referenced "victim blaming” and "violence against women” in closing

argument. We decline to review this issue under the plain error doctrine. State v. Lackman,

2017 MT 127, ¶ 30, 387 Mont. 459, 395 P.3d 477.

¶15 Finally, Smith argues that the City Court erred by including moving expenses as an

element of restitution. Section 46-18-201(5), MCA, provides that the judge "shall, as part

of the sentence require payment of full restitution” when the victim of the crime has

suffered a pecuniary loss. Schroeder provided the court with evidence of her pecuniary

loss related to moving following the assault. That was sufficient information for the City

Court judge to impose the restitution payment under § 46-18-201(5), MCA.

¶16 There was sufficient evidence presented at trial to support Smith's conviction under

§ 45-5-206(1)(a), MCA. The City Court did not err in ordering restitution for moving

expenses. 6

¶17 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.

Affirmed