author: JUSTICE McDONOUGH JUSTICE WEBER,

text:
    JAMES ROUSE, Plaintiff and Appellant, v. ANACONDA-DEER LODGE COUNTY, and Joseph Martelli, individually and in his capacity as law enforcement officer of Anaconda-Deer Lodge County, and Edward Cutler, individually and in his capacity as law enforcement officer of Anaconda-Deer Lodge County, Defendants and Respondents.
    No. 91-169.
    Submitted on briefs July 25, 1991.
    Decided September 11, 1991.
    250 Mont. 1.
    817 P.2d. 690.

      Jay F. Lansing, Moses Law Firm, Billings, for plaintiff and appellant.
    Jon R. Binney, Milodragovich, Dale & Dye, Missoula, for defendants and respondents.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal involves allegations of police brutality. The plaintiff James Rouse appeals the order of the Third Judicial District Court, Anaconda-Deer Lodge County, granting summary judgment to the defendants Anaconda-Deer Lodge County (County) and officers Joseph Martelli and Edward Cutler. The court granted the defendants’ motion on the grounds that the plaintiff’s claims were barred by the statute of limitations. We reverse and remand the case for further proceedings.

Rouse raises the following issue on appeal:

Did the District Court err in granting the defendants’ motion for summary judgment on the grounds that Mr. Rouse’s claims were barred by the statute of limitations set forth in § 27-2-203, MCA?

The incidents giving rise to the allegations in Rouse’s complaint occurred on October 25,1984. We will not describe the details of these allegations at length, as they are not material to our determination of the issues on appeal. It is sufficient for us to note that Rouse alleges that he was stopped by Officers Cutler and Martelli while urinating in a doorway and was brutally beaten without justification or cause. After the incident, Rouse was charged with misdemeanor attempted assault on Officer Martelli. In their amended answer dated April 27,1990, the defendants raised the affirmative defense of the statute of limitations arguing that it barred all of Rouse’s claims. The County moved the court for summary judgment on June 25, 1990. For purposes of this motion, Rouse conceded that there was no evidence that Officer Cutler took part in the alleged assault. The court granted the motion on January 30, 1991. The court ruled that the defendants were not entitled to immunity under § 2-9-111, MCA, and that § 27-2-204(3), MCA, was the applicable statute of limitations and the statute barred Rouse’s claims. Plaintiff filed this appeal regarding the statutory bar of his claims for assault and malicious prosecution. He has not appealed the disposition of his claim of failure to provide medical treatment.

I. DEFENDANT COUNTY

The District Court ruled that Rouse’s claims of assault against officers Martelli and Cutler were barred by § 27-2-204(3), MCA. Rouse argues that § 27-2-209, MCA, a three year statute of limitations concerning liability incurred by a sheriff, coroner, or constable, provides the applicable limitation period in this case. Rouse also argues that § 27-2-209, MCA, allows a plaintiff to file a lawsuit within six months after his claims are rejected by a county, and that because the county has yet to reject his claims, the six month statute has not begun to run against him.

Actions against the state and political subdivisions are governed by Title 2, Chapter 9, Part 3, MCA. The statutes provide in pertinent part:

“2-9-301. Filing of claims against state and political subdivisions — disposition by state agency as prerequisite. (1) All claims against the state arising under the provisions of parts 1 through 3 of this chapter must be presented in writing to the department of administration.
“(2) A complaint based on a claim subject to the provisions of subsection (1) may not be filed in district court unless the claimant has first presented the claim to the department of administration and the department has finally denied the claim. The department must grant or deny the claim in writing sent by certified mail within 120 days after the claim is presented to the department. The failure of the department to make final disposition of a claim within 120 days after it is presented to the department must be considered a final denial of the claim for purposes of this subsection. Upon the department’s receipt of the claim, the statute of limitations on the claim is tolled for 120 days. The provisions of this subsection do not apply to claims that may be asserted under Title 25, chapter 20, by third-party complaint, cross-claim, or counterclaim.
“(3) All claims against a political subdivision arising under the provisions of parts 1 through 3 shall be presented to and filed with the clerk or secretary of the political subdivision.” (Emphasis added.) Thus, the statutory requirements enacted by the legislature mandate a plaintiff asserting a cause of action against a governmental entity to first file a claim against that entity before filing an action in district court. The purpose of such statutes is the furtherance of the public policy to prevent needless litigation and to save unnecessary litigation expenses by affording an opportunity to amicably adjust and settle all claims before suit is brought. See 56 Am. Jur.2d, Municipal Corporations, § 686, p. 730 (1971). The statutes also provide a limitation period for such claims:
“2-9-302. Time for filing — limitation of actions. A claim against the state or a political subdivision is subject to the limitation of actions provided by law.”

In this case, the parties dispute whether Rouse’s causes of action are governed by a two year or a three year statute of limitation. See §§ 27-2-209(1), 27-2-204(1) and (3), MCA. We will discuss the applicability of these sections in greater detail with respect to the individual defendants later in this opinion. With respect to the County, Rouse filed a claim on August 15, 1986, approximately 22 months after the incident. Thus, regardless of whether a two or three year limitation period applies, Rouse’s claim against the County was timely filed with the County within two years of the incident. The record indicates that no action was taken by the County in approving or denying the claim. With respect to causes of action filed on a claim against a county political subdivision, the statutes provide that “[a]ctions for claims against a county which have been rejected by the county commissioners must be commenced within 6 months after the first rejection thereof by such board.” Section 27-2-209(3), MCA.

With respect to claims against the state, § 2-9-301, MCA, set forth above, provides that the department of administration must grant or deny a claim against the state within 120 days after presentation to the department. Expiration of the 120 day period with no final disposition of the claim is deemed a denial of the claim. The statute’s title indicates that disposition of the claim by a state agency is a prerequisite to filing an action in district court. The statutes do not provide a shortened limitation period to file an action on a claim against the state once the claim is denied, as is the case with the six month period for actions on claims against a county.

With respect to claims against political subdivisions, the statutes do not state that a final disposition of the claim before a local tribunal is a prerequisite to filing an action in district court. The statutes also do not provide an automatic denial period for claims made against a county or political subdivision similar to the 120 day period for claims against the state. Here, Rouse’s claim against the County was subject to a six month limitation period after denial by the appropriate body, but no such denial occurred and the statutes do not provide an automatic denial period applicable in this case.

Some jurisdictions have dealt with this problem by holding that the plaintiff must file his action within a reasonable time after presentation of the claim should the government entity fail to act upon the claim. See Annotation, Limitation period as affected by requirement of notice or presentation of claim against governmental body, 3 A.L.R.2d 711, § 10 (1949). We hesitate to legislate what a reasonable time would be after presentation of a claim before it should be deemed denied.

Furthermore, we think that the reasoning of the Wisconsin Supreme Court in Gutter v. Seamandel (1981), 103 Wis.2d 1, 308 N.W.2d 403, applies to this case. In Gutter, the court discussed the applicability of a statute [Wis. Stat. 1975 § 62.25(l)(e)] providing a six month limitation period after rejection of a claim and requiring the tribunal to serve the claimant with a notice of disallowance. In holding that this statute applied rather than a statute providing a 90 day disallowance period when the council fails to act [Wis. Stat. 1975 § 345.05], the court stated:

“Our interpretation is also consistent with the public policy justifications for statutes of limitation. Statutes of limitation are imposed to ensure prompt litigation of valid claims and to protect a defendant from fraudulent or stale claims. Armes v. Kenosha County, 81 Wis.2d 309, 319-320, 260 N.W.2d 515 (1977). Interpreting § 62.25(l)(e) to apply does not unduly lengthen the period during which suit may be commenced. On the contrary, the length of the period is controlled by the council which has only to serve notice of disallowance in order to start the six month period within which the action must begin. In this respect, § 345.05, not requiring proof of service of notice of disallowance, does little to ensure prompt litigation; such a statute is more likely to deprive unwary plaintiffs of the opportunity to litigate.” (Emphasis added.)

Gutter, 308 N.W.2d at 414. Here, after Rouse filed his timely claim with the County, the County had notice of pending claims against it and also controlled the commencement of the six month limitation period. It would be inherently unfair to require Rouse to file a timely claim against the County before filing an action in District Court and then to penalize him for the County’s failure to act, or stalling on the claim. We hold that under §§ 2-9-302 and 27-2-209(3), MCA, the initial period of limitation for claims against a county is tolled upon timely filing of the claim and the six month period of limitation for filing an action in district court does not begin to run until the claimant receives notice of the county board’s first denial of the claim.

II. DEFENDANTS MARTELLI AND CUTLER

A. Malicious Prosecution Claim

The District Court held that § 27-2-204, MCA, is the statute of limitation applicable to the claims of assault and malicious prosecution against the individual defendants Martelli and Cutler. The statute provides:

“27-2-204. Tort actions — general and personal injury. (1) Except as provided in 27-2-216, the period prescribed for the commencement of an action upon a liability not founded upon an instrument in writing is within 3 years.
“(2) The period prescribed for the commencement of an action to recover damages for the death of one caused by the wrongful act or neglect of another is within 3 years.
“(3) The period prescribed for the commencement of an action for libel, slander, assault, battery, false imprisonment, or seduction is within 2 years.” (Emphasis added.)

Subsection (3) provides a two year limitation period for specific intentional torts. Subsection (1) provides a residual three year limitation period for torts not specifically enumerated in the statute. The District Court held that Rouse’s claims of assault and malicious prosecution were barred by subsection (3), stating:

“The Court has already concluded that the assault ... was not a lawful act committed in the lawful discharge of an official duty. Therefore, the specific two year statute for assault still applies even if the claim presented to Anaconda-Deer Lodge County was never acted upon. This same logic applies to the malicious prosecution claims which stem from allegations of false reports by the Officers involved. The statute of limitations for fraud is also two years as set out in Section 27-2-203, MCA.” (Emphasis added.)

Thus the District Court held that Rouse’s claim of malicious prosecution was based on fraud and the two year limitation period, rather than the three year residual limitation period, applies. See § 27-2-203, MCA.

We need not determine in this case whether a cause of action for malicious prosecution is governed by the two year rather than the three year statute of limitations.

“[A] claim or cause of action accrues when all elements of the claim or cause exist or have occurred, the right to maintain an action on the claim or cause is complete, and a court or other agency is authorized to accept jurisdiction of the action. ... Unless otherwise provided by statute, the period of limitation begins when the claim or cause of action accrues.”

Section 27-2-102, MCA; Kitchen Krafters v. Eastside Bank (1990), 242 Mont. 155, 161-62, 789 P.2d 567, 571; see also Heckaman v. Northern Pac. Ry. Co. (1933), 93 Mont. 363, 375-76, 20 P.2d 258, 261. The elements of the tort of malicious prosecution are:

“1. A judicial proceeding commenced against the party alleging malicious prosecution;
“2. the other party’s responsibility for instigating the proceeding;
“3. a want of probable cause for the other party’s action;
“4. the existence of malice as the motivator behind the other party’s action;
“5. the termination of the proceeding in favor of the alleging party, and
“6. damages suffered by the party alleging malicious prosecution.” (Emphasis added.)

First Bank (N.A.) Billings v. Clark (1989), 236 Mont. 195, 204-05, 771 P.2d 84, 90. The complaint alleges that Rouse was tried by a jury on March 13 and 14, 1986 and acquitted of the assault charge. The judgment is not part of the record. Assuming Rouse’s allegations are true, his cause of action for malicious prosecution did not accrue until the acquittal. Rouse filed his cause of action in District Court on October 22, 1987. Assuming he was acquitted in March of 1986, his claim of malicious prosecution falls within either a three or two year statute of limitation and thus would not be barred.

B. Assault Claim Against Officer Martelli

The District Court ruled that the assault cause against the individual defendants was barred by § 27-2-204(3), MCA, the two year statute of limitation for assault claims. Rouse argues that because the defendants are law enforcement officers of Anaconda-Deer Lodge County, his cause of action is governed by a different statute, namely § 27-2-209(1), MCA. The latter provides:

“27-2-209. Actions against local government or local government official. (1) The period prescribed for the commencement of an action against a sheriff, coroner, or constable upon a liability incurred by the doing of an act in his official capacity and in virtue of his office or by the omission of an official duty, including the nonpayment of money collected upon an execution, is within 3 years; but this subsection does not apply for an action for an escape.”
The District Court ruled that this section does not apply “because none of the officials listed in the statute are involved in the instant case.”

We agree. There is authority that the statute does not apply to these types of actions, see Dixon v. Seymour (N.Y. 1978), 62 A.D.2d 444, 405 N.Y.S.2d 320, 321-22; Ingo v. Koch (2d Cir.1942), 127 F.2d 667, 671; 80 C.J.S., Sheriffs and Constables, § 151(b) (1953). However, even assuming they do apply, neither Officer Martelli nor Officer Cutler is a sheriff or coroner within the plain meaning of the statute. Rather, they are law enforcement officers of a consolidated city-county government entity. Furthermore, they are not “constables” within the true meaning of that word. Black’s Law Dictionary (6th Edition 1990) defines constable as

“[a]n officer of a municipal corporation (usually elected) whose duties are similar to those of the sheriff, though his powers are less and his jurisdiction smaller. He is to preserve the public peace, execute the process of magistrates’ courts, and of some other tribunals, serve writs, attend the sessions of the criminal courts, have the custody of juries, and discharge other functions sometimes assigned to him by the local law or by statute. Powers and duties of constables have generally been replaced by sheriffs.”

We also note that in at least one other jurisdiction where a similar statute of limitation has been held to apply to the tortious acts of law enforcement officials, the statute contains the words ‘peace officer’ rather than ‘sheriff’ and ‘constable.’ See Jenkins v. Daniels (Alaska 1988), 751 P.2d 19, 21. On the other hand, the wording of § 27-2-209(1), MCA, is virtually unchanged from the original statute contained in the Field Code and first enacted in New York in 1829. See Dixon, 405 N.Y.S.2d at 321. If the legislature intended this limitation period to apply to all “peace officers” for all their tortious acts, it could have so amended it. Thus, the two year statute of limitation contained in § 27-2- 204(3), MCA, applies to Rouse’s assault claim against Martelli, and it is thus barred.

III. DEFENDANTS’ ISSUE

In their response brief, the defendants attempt to raise the following issue, in the event that we reverse on the statute of limitation:

Did the District Court err in determining that the defendants are not protected from suit based on the immunity provided in § 2-9-111, MCA?

The record indicates that the defendants have failed to properly preserve this issue for appeal by filing timely cross-appeal on this issue.

“Although Rule 14 [M.R.App.Civ.P.] provides for review of matters by cross-assignment of error, this does not eliminate the necessity for cross-appeal by a respondent who seeks review of rulings on matters separate and distinct from those sought to be reviewed by the appellant.”

Johnson v. Tindall (1981), 195 Mont. 165, 169, 635 P.2d 266, 268. Thus, we are precluded from reviewing this issue on appeal.

In summary, Rouse’s assault claim against Officer Martelli is barred by § 27-2-204(3), MCA. Rouse’s claims against the individual officers for malicious prosecution and his claim against the County are not barred, and we reverse the District Court’s order to that extent. AFFIRMED in part and REVERSED and REMANDED for further proceedings consistent with this opinion.

JUSTICES HARRISON, TRIEWEILER, and HUNT concur.

JUSTICE WEBER,

specially concurring:

I agree with the holding of the majority opinion that the cause of action was not barred by the statute of limitations contained in § 27-2-204(3), MCA. I base my concurrence upon my conclusion that the plaintiff filed his action within a reasonable time after presentation of the claim to the governmental entity. That rationale is not specifically approved in the majority opinion.

As quoted in the majority opinion, § 2-9-301, MCA, provides that claims against the State of Montana must be presented to the Department of Administration and the Department must grant or deny the claim in writing sent by certified mail within 120 days. Failure of the Department to make a final disposition within 120 days after presentation “must be considered a final denial of the claim.” In addition, the statute of limitations on the claim is tolled by 120 days.

Unfortunately the legislature did not make any provision with regard to the time limitations on claims made to a political subdivision. Under paragraph (3) of the same code section, such claims are required to be presented to the clerk or secretary of the political subdivision. There is no reference to the manner of responding on the part of the political subdivision or its clerk, nor is there any reference to an extension for statute of limitation purposes. I would hope that this absence will be noted by the legislature and cared for in future legislation.

While I generally agree that this Court should not legislate on matters, I question that the application of a reasonable time standard constitutes legislation for this purpose. Here plaintiff waited more than 14 months after filing his claim with the City-County before he filed his complaint in District Court. Notwithstanding that wait, because the complaint was filed within three years of the original date of injury, I conclude that the filing occurred within a reasonable time. I therefore join in the majority opinion.

The holding of the majority indicates there is no time limitation which begins to run until the claimant actually receives notice of the County Board’s denial of the claim. Had the plaintiff here delayed 14 years from the filing of his claim to the filing of the District Court complaint, I would conclude that was an unreasonable time which barred his right to recover.

The majority has also provided that the six month period of limitation does not begin to run until the claimant “receives notice” of the denial of his claim. That is even more strict than the statutory requirement with regard to the State of Montana, which only requires the State to send their denial by certified mail. I do not agree with that conclusion.


source: Caselaw Access Project

author: JUSTICE McDONOUGH

license: Public Domain

text:
    ALAN FRANK, Plaintiff and Respondent, v. LAWRENCE BIRKY, Defendant and Appellant.
    No. 91-096.
    Submitted on briefs August 1, 1991.
    Decided September 17, 1991.
    250 Mont. 11.
    817 P.2d 696.

      Chris Christensen, Kalispell, for defendant and appellant.
    William E. Hileman, Hedman, Hileman & LaCosta, Whitefish, Daniel W. Hileman, Murray & Kaufman, Kalispell, for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Defendant Lawrence Birky appeals from the judgment of the District Court of the Eleventh Judicial District, Flathead County. The issue is whether the District Court was clearly erroneous in its findings relative to the accounting and distribution of the parties’ partnership assets following dissolution of the partnership. We affirm.

On July 1, 1978 Lawrence Birky (appellant/defendant) and Alan Frank (respondent/plaintiff) entered into a written partnership agreement to engage in the general business of logging and related industries. The agreement provided in part that the initial capital of the partnership would be contributed equally, that individual capital accounts would be kept for each partner, and that in the event of termination the assets would be divided equally. In October, 1983 Frank filed a complaint in the District Court alleging that Birky had breached the partnership agreement, requesting that the court dissolve the partnership and that the court award Frank his partnership share plus damages.

On October 21, 1985, the parties stipulated to bifurcate the trial; first to determine the scope of the partnership and then to resolve the issue of accounting and distribution. Judgment on the scope of the partnership was entered September 26, 1986. The partnership was determined to be composed of the following assets:

1976 — Barko Loader mounted on a Kenworth truck complete with winch

1978 — Kenworth Truck and Trailer

1978 — 450 Timbeijack rubber-tire Skidder with chains

Air compressor and fuel tank.

The District Court found that the partnership was dissolved by mutual agreement in May, 1983 and ordered that the above property be divided equally between the parties.

For the second phase, a Special Master was appointed by the court to provide an accounting of the partnership property. During presentation of evidence to the Special Master a dispute arose concerning the court’s order that the property be divided equally and whether Birky would be precluded from offering evidence of capital contributions. Birky filed a motion for clarification with the District Court. The District Court ruled that:

“evidence shall be admissible of individual capital accounts as they stood on the books of the partnership as of the date of its dissolution in May of 1983 insofar as said accounts relate to the three items of property described ... in the September 26, 1986 Judgment of this Court. Such capital accounts ... are relevant for ... determining the amount in which the former partners will share equally after the payment of all liabilities including those to the partners’ individual capital accounts.
“3. In the event that the books of the partnership did not contain any such capital accounts on the date of dissolution, then the court shall deem the contributions with respect to the three items of property to have been equal and no evidence shall be admissible by the Special Master for the pin-pose of now creating any such accounts.

Birky was unable to provide books containing a record of individual capital accounts and admitted that such a record did not exist.

Thereafter the Special Master completed his findings and the District Court adopted the findings of the Special Master which included the following distribution of the partnership property.

1) The Barko loader (sold by Birky for $42,000)

$9000 — allowed to Birky for repairs necessary to promulgate the sale.

$15,500 — to Frank.

$15,500 — retained by Birky.

2) The Kenworth truck and trailer (sold for $42,000)

$21,000 — to Frank.

$21,000 — retained by Birky. (including responsibility for collecting $6,000 owed by purchaser.)

3) The Timberjack Skidder (Value of $40,000 at dissolution)

$20,000 — owed Frank by Birky who retained control and later sold.

4) Profits, wages and other compensation generated dining the partnership

$22,325.00 — owed Frank by Birky.

Birky believes the equal distribution of the assets as delineated above is inequitable in light of the evidence presented.

First, appellant Birky contends that the court committed prejudicial error by ordering (in the absence of individual capital accounts on the partnership books) the capital contributions of the partners to be deemed equal. Birky relies on § 35-10-401(1), MCA, which provides:

“Rules determining rights and duties of partners. The rights and duties of the partners in relation to the partnership shall be determined, subject to any agreement between them, by the following rules:
“(1) Each partner shall be repaid his contributions whether by way of capital or advances to the partnership property and share equally in the profits and surplus remaining after all liabilities, including those to partners, are satisfied and must contribute towards the losses, whether of capital or otherwise, sustained by the partnership according to his share in the profits.’ ”

Birky argues that by failing to remunerate him for his alleged capital contributions the District Court has circumvented the mandate of § 35-10-401(1), MCA. Birky further argues that to ignore the capital contributions creates an inequitable distribution of the property which results in the unjust enrichment of Frank. A substantial portion of his alleged capital contributions would have to be proved by parol or extrinsic evidence.

A subissue necessary for review is, did the District Court err by instructing the Special Master to exclude parol or extrinsic evidence when determining the capital contributions. An evidentiary ruling by a trial court is a discretionary act. The standard of review for discretionary acts is: was the ruling a misuse or an abuse of the court’s discretion. Steer, Inc. v. Department of Revenue of the State of Montana, (Mont. 1990), [245 Mont. 470,] 803 P.2d 601, 47 St.Rep. 2199.

Birky contends that the court abused its discretion by not allowing him to present evidence pertaining to his capital contributions other than the business records.

In the dissolution of a partnership and the sale and distribution of the partnership’s assets, a partner against whom an action was brought and who failed to keep records was estopped from objecting to the court’s finding of value of each party’s contribution to the venture. Loney v. Pettapiece (1970), 156 Mont. 1, 475 P.2d 999. In Loney, the trial court was faced with incomplete information regarding capital contributions to the venture. Based on the testimony received, the trial court attempted to accurately estimate the value of each partner’s contribution to the partnership. On appeal, the defendant argued that his capital contributions had not been fully considered. The court ruled that because he was in a position to keep records and did not he was precluded from objecting to the court’s valuation. Here Birky kept the records of the partnership. We conclude that the court did not abuse its discretion in refusing to allow parol or extrinsic evidence to be presented by Birky in determining capital contributions.

The ultimate determination of capital contribution to the partnership is a question of fact to be determined by the District Court. Rule 52(a), M.R.Civ.P., requires that findings of facts be upheld unless they are found to be clearly erroneous. “[A] finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.” U.S. v. U.S. Gypsum Co. (1948) 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746; Steer, Inc. v. Department of Revenue of the State of Montana (Mont. 1990), [245 Mont. 407,] 803 P.2d 601, 47 St.Rep. 2199, citing Wage Appeal of Montana State Highway Patrol Officers v. Board of Personnel Appeals (1984), 208 Mont. 33, 40, 676 P.2d 194, 198. (Citations omitted.)

The District Court stated that in deciding to deem the contributions equal in the absence of partnership records, consideration was given

"... the fact that the Defendant was primarily responsible for maintaining the books of the partnership, the passage of time, the confusing and incomplete evidence relating to this issue at the initial hearing and other factors.”

There are ample facts in the record to support the District Court’s finding that the capital contributions should be deemed equal. First, the partnership agreement itself clearly indicates that the contributions would be equal. Second, in the event that contributions were made they were to be documented in the capital accounts as part of the partnership records. As previously indicated, there were no such records. Third, the record of the proceeding before the District Court reflects evidence to support such a finding. The findings as supported above are not clearly erroneous and therefore cannot be set aside.

The appellant raises the additional claim that the manner in which the court provided the accounting and distribution of the partnership was inconsistent with the evidence on record. We disagree. Specifically, the appellant finds error with the District Court’s reliance on expert testimony, the court’s lack of consideration of draws taken by Frank, the court’s lack of consideration of partnership obligations, and the court’s valuation of the skidder. Each of these four related issues is a question of fact to be determined by the trial court.

The District Court relied on the findings of the Special Master and is obligated to follow the valuations as determined by the Special Master unless they are clearly erroneous. Rule 53(e)(2), M.R.Civ.P., Mehl v. Mehl (1990), 241 Mont. 310, 786 P.2d 1173.

Both parties had opportunity to present expert testimony and thereby opportunity to provide a manner for the court to calculate the value of wages and profits generated by the partnership. The appellant takes exception with the court’s acceptance of Frank’s expert’s method. Both experts testified that it was difficult to impossible to accurately verify the partnership’s expenses. The finder of fact weighs the evidence and we conclude the findings are not clearly erroneous and are therefore affirmed.

Lastly, appellant asks for review of the determination of the value of the skidder because he believes it was valued at an improper date. It is uncontested that the net value of assets is generally made at or near the time of dissolution. See In re the Marriage of Halverson (1988), 230 Mont. 226, 749 P.2d 518. The appellant argues that to follow the general rule achieves an inequitable result and that an exception should be made. Once again, decisions regarding valuation of partnership property will be overturned only if they are clearly erroneous. The decision of the court to adhere to the general rule is not clearly erroneous.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, HUNT, and GRAY concur.


author: JUSTICE GRAY

text:
    GERALD F. ANDERSON, Plaintiff and Appellant, v. STATE OF MONTANA, Defendant and Respondent.
    No. 91-118.
    Submitted on briefs July 2, 1991.
    Decided Sept. 24, 1991.
    Rehearing Denied Oct. 21, 1991.
    250 Mont. 18.
    817 P.2d. 699.

      Terry G. Sehestedt, Missoula, for plaintiff and appellant.
    Robert J. Phillips, Phillips & Williams, Missoula, for defendant and respondent.
   JUSTICE GRAY

delivered the Opinion of the Court.

The appellant, Gerald Anderson, appeals from a judgment entered on a jury verdict rendered in the District Court of the Fourth Judicial District, Missoula County, in favor of the defendant, State of Montana. Anderson filed suit in the District Court seeking to recover from the State damages which he claimed to have sustained as result of (1) the wrongful seizure and suspension of his driver’s license, and (2) the failure of the Department of Justice to timely return his driver’s license to him after having been ordered to do so in a prior judicial proceeding. We affirm.

The dispositive issue on appeal is whether the District Court erred in denying the appellant’s motion for partial summary judgment in which Anderson asserted that the issue of the State’s liability was determined in a prior judicial proceeding and that further litigation of that issue was barred by the doctrine of collateral estoppel.

On June 24, 1986, Anderson was arrested in Missoula County by Montana Highway Patrol Officer James Wierson on a charge of driving under the influence of alcohol in violation of § 61-8-401, MCA. Anderson was transported to the Missoula City Police Department for further processing. At the police department Anderson was videotaped performing sobriety tests, advised of his Miranda rights, and requested to take a breathalyzer test. During the course of the booking procedure, Officer Wierson determined that Anderson had refused to take the breathalyzer test as requested and, therefore, he seized Anderson’s driver’s license pursuant to § 61-8-402, MCA.

On July 3,1986, Anderson filed a petition in district court pursuant to § 61-8-403, MCA, seeking judicial review of the seizure and attendant ninety day suspension of his driver’s license. Missoula Deputy County Attorney Betty Wing represented the Department of Justice in that proceeding, Cause No. 64983. On July 11, 1986, a hearing was conducted before the district court at which time the videotape of the booking procedure at the police department was viewed. Anderson contended that he had not refused to submit to a breathalyzer test but was simply invoking his right to counsel. On August 8,1986, after reviewing briefs submitted by counsel, the court agreed with Anderson’s contention. The court ruled that the State’s treatment of Anderson’s assertion of his right to counsel as a refusal to take a breathalyzer test was “improper” and issued an order reversing the suspension of Anderson’s license and directing the Department of Justice to return it to him. The State did not appeal the court’s decision.

Apparently, Ms. Wing never notified the Department of Justice of the court’s order requiring that Anderson’s license be returned. His license was ultimately returned to him on September 24,1986.

On March 26, 1987, Anderson filed the present action, Cause No. 66629, against the State to recover damages which he claimed to have sustained as a result of (1) the wrongful seizure and suspension of his driver’s license, and (2) the failure of the Department of Justice to timely return his driver’s license after having been ordered to do so in the prior judicial proceeding. Anderson sought to recover attorney’s fees incurred in the prior judicial proceeding and damages resulting from his inability to operate his vehicle during the time in which he did not have his driver’s license.

During the course of the proceedings in Cause No. 66629, Anderson moved for partial summary judgment and the State subsequently made its own motion for summary judgment. Anderson based his motion on the doctrines of res judicata and collateral estoppel. The State based its motion on the doctrine of quasi-judicial immunity. The District Court denied both motions.

The case was tried to a jury on November 26 and 27, 1990, based upon a theory of negligence. The jury found that the State was not negligent in seizing Anderson’s driver’s license, but was negligent in failing to return the license after being ordered to do so. However, the jury found that the State’s negligence did not proximately cause injuries to Anderson. The District Court entered judgment on the jury’s verdict and denied Anderson’s motion for a new trial.

The issue before the Court is whether the District Court erred in denying Anderson’s motion for partial summary judgment as to the issue of the State’s liability based on the doctrine of collateral estoppel. Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Summary judgment may be granted on the issue of liability alone, reserving the question of damages, where appropriate. Rule 56(d), M.R.Civ.P. In Smith v. Schweigert (1990), 241 Mont. 54, 58, 785 P.2d 195, 197, this Court made the following observation regarding the doctrine of collateral estoppel:

“Collateral estoppel is a form of res judicata. Quite simply, the doctrine ‘precludes relitigation of issues actually litigated and determined in a prior suit.’ Lawlor v. National Screen Service (1955), 349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122. It differs from res judicata, in that res judicata bars the same parties from relitigating the same cause of action, while collateral estoppel bars the same parties, or their privies, from relitigating issues which have been decided with respect to a different cause of action. Brault v. Smith (1984), 209 Mont. 21, 679 P.2d 236.”

Collateral estoppel has three elements. These are: (1) the issue has been decided in a prior adjudication and is identical to the one presented; (2) a final judgment on the merits was issued; and (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication. Smith, 241 Mont. at 58, 785 P.2d at 197; In re Marriage of Stout (1985), 216 Mont. 342, 349-50, 701 P.2d 729, 733-34.

Anderson contends that the three elements of collateral estoppel are satisfied in the present case. Specifically, he argues that the issue present in both cases is whether the State was entitled to, or was justified in, seizing and suspending his license. He argues that because the court in the prior proceeding determined that the State was not entitled to seize his license, the State was estopped in the present proceeding from contesting the issue of liability. We disagree with Anderson’s characterization of the issue presented in both cases.

Of the three elements of collateral estoppel, the identity of issues is the most crucial. Stapleton v. First Security Bank (1983), 207 Mont. 248, 258, 675 P.2d 83, 89. In order to satisfy this element, the identical issue or “precise question” must have been litigated in the prior action. Stapleton, 207 Mont. at 258, 675 P.2d at 89. Here, the judicial review proceeding did not involve the “precise question” presented in the subsequent tort action.

Anderson sought judicial review of the seizure and suspension of his driver’s license pursuant to § 61-8-403, MCA. That statute provides, in pertinent part:

“Such court is hereby vested with jurisdiction and it shall be its duty to set the matter for hearing upon 10 days’ written notice to the county attorney of the county wherein the appeal is filed and such county attorney shall represent the state, and thereupon the court shall take testimony and examine into the facts of the case, except that the issues shall be limited to whether a peace officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle upon the ways of this state open to the public, while under the influence of alcohol, whether the person was placed under arrest, and whether such person refused to submit to the test. The court shall thereupon determine whether the petitioner is entitled to a license or is subject to suspension as heretofore provided. [Emphasis added.]”

Under this statute, the judicial review proceeding was limited to three underlying issues. The court’s findings regarding these issues served as the bases on which to make its ultimate determination of whether Anderson was entitled to a license or was subject to suspension. Based on its finding that Anderson did not refuse to take a breathalyzer test, the court ultimately determined that Anderson was entitled to his driver’s license and was not subject to suspension.

In the present action, Anderson moved for partial summary judgment on the issue of the State’s civil liability. Unlike the judicial review proceeding, the issue in the present case did not involve a determination of whether Anderson was entitled to his driver’s license. The issue in the present case was whether the State, having seized and suspended Anderson’s license, was civilly liable for the seizure and suspension of the license. The issue of the State’s civil liability for the seizure and suspension of Anderson’s license was not before the court in the judicial review proceeding, nor, under § 61-8-403, MCA, could it be. The crucial collateral estoppel element of identity of issues, therefore, does not exist in the present case. Accordingly, we hold that the District Court did not err in denying Anderson’s motion for partial summary judgment.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES McDONOUGH, TRIEWEILER and WEBER concur.


author: JUSTICE HARRISON

text:
    AGRICREDIT ACCEPTANCE CORPORATION, Plaintiff and Respondent, v. OMAR MICHELS, Defendant and Appellant.
    No. 91-206.
    Submitted on briefs Aug. 1, 1991.
    Decided Sept. 24, 1991.
    250 Mont. 23.
    817 P.2d. 704.
    David F. Stufft, Frisbee, Moore, Stufft & Olson, Cut Bank, for defendant and appellant.
    Kevin C. Meek, Alexander, Baucus & Linnell, P.C., Great Falls, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Plaintiff, Agricredit Acceptance Corporation (Agricredit), initiated this suit to recover a deficiency judgment from the defendant, Omar Michels, after the lawful repossession and subsequent sale of collateral in which Agricredit held security interests. Omar Michels appeals from a summary judgment of the District Court of the Ninth Judicial District, Glacier County, Montana, granting summary judgment in favor of Agricredit. We reverse.

The issue is whether the District Court erred in granting plaintiff’s motion for summary judgment by ruling that Agricredit conducted a commercially reasonable sale when it sold two pieces of Michels’ farm equipment.

I.

This case involves the sale of two pieces of farm equipment repossessed from Michels. Following repossession, Agricredit conducted separate sales and sold each piece of equipment applying the net sales proceeds to the balance due on Michels’ accounts.

On June 27, 1986 Michels purchased a 1982 Massey-Ferguson Model 850 combine from Palmer Implement, Inc. Michels and Palmer Implement, Inc. entered into a retail installment contract and a security agreement for the sale of the combine. Palmer Implement, Inc. assigned this contract and security agreement to Massey-Ferguson Credit Corporation which in turn assigned the contract and security agreement to Agricredit.

The terms of the contract required Michels to make four annual payments of approximately $11,367, which he failed to do. In addition, the contract allowed Agricredit to accelerate the balance due on the contract or repossess the collateral in the event of default. Sometime after Michels defaulted, Agricredit lawfully repossessed the combine.

After failure to make the payments, on October 22, 1988 Michels was sent a notice of repossession and pending sale of the combine setting forth the balance due plus expenses of repossession. The notice specified that the combine would be sold at a public sale on November 8, 1988 at Munson Equipment in Shelby, Montana.

On November 3, 1988 Agricredit published a notice regarding the sale of the combine in the classified section of the Shelby Promoter, a weekly newspaper. This notice set forth the make and model of the combine; the date, time and place of the sale; and an out-of-state phone number for interested parties to make inquiries regarding the combine.

The net proceeds from the sale of the combine totaled $12,500 which was applied to Michels’ past due account. On November 17, 1988 Agricredit notified Michels of the sale. This notice stated that $32,998.99 was the balance due on the contract, however, after deducting the $12,500, the total net proceeds of the sale, Michels owed Agricredit a deficiency in the amount $20,594.79.

Agricredit sought a second deficiency after a default and subsequent sale relating to a Versatile Model 850 four wheel drive tractor purchased by Michels from Palmer Implement, Inc. under contract dated November 16,1986. This deficiency arose from Michels’ default on the November 16,1986 contract and security agreement. Michels had entered into this contract and security agreement with Palmer Implement, Inc. for the purchase of a tractor. As with the combine contract, Palmer Implement, Inc. assigned the contract and security agreement to Agricredit.

Michels agreed to pay the purchase price of $33,000 for the tractor. Michels received $9,000 credit for a trade-in plus he paid $2,000 cash for a total down payment of $11,000. This contract required Michels to make yearly payments in the amount of $9,203.70 beginning December 1, 1987 until the account was paid in full. In the event of default, Agricredit had the right to accelerate the remaining payments due or repossess the collateral. Michels defaulted on the tractor contract when he failed to make the December 1, 1987 payment. After notice published in the Shelby paper, notice to Michels and public sale, Agricredit sent Michels a notice stating that after deducting the net sales proceeds of $16,000 from the balance due on the tractor account at the time Agricredit repossessed the tractor, Michels owed a $10,508.70 deficiency to Agricredit.

When Michels failed to pay the deficiencies, Agricredit filed suit in the District Court against Michels for the deficiencies. On January 31, 1991, the District Court granted summary judgment in favor of Agricredit. The District Court found that Agricredit was entitled to the deficiencies because it conducted commercially reasonable sales when it sold the combine and tractor. The District Court found the sales to be commercially reasonable because Agricredit notified Michels of the pending sales pursuant to § 30-9-504(3), MCA.

Michels, in opposing summary judgment in this matter submitted to the trial court the affidavit of Sherwin Palmer, a former farm equipment dealer in Shelby. This affidavit stated the following:

“SHERWIN PALMER, being first duly sworn upon his oath, deposes and says:
“1. My name is Sherwin Palmer.
“2. I am 62 years of age.
“3. I was a Massey Ferguson dealer in the Cut Bank area from 1971 to 1987.
“4. Massey Ferguson, through its credit agency, First Massey Ferguson Credit, and subsequently Agricredit Acceptance Corporation, has conducted and transacted business in Montana on a regular and systematic basis.
“5. I know Mr. Elmer Fandrich. Fandrich was one of the Agricredit Acceptance Corporation collection men who would regularly come into the Cut Bank area and not only work on accounts with me, but would also travel through the Cut Bank/Glacier County area and confer with farmers who had accounts with Agricredit Acceptance Corporation. Fandrich would travel into my area approximately every two months at the minimum.
“6. Prior to Fandrich being assigned this territory, the previous credit man would come to Cut Bank on a regular basis of not less than once a month. He met with me, talked with me and worked on accounts and attempted to encourage the sale of farm equipment through his company. These were not isolated instances. In addition, he would work the rural areas and talk to farmers about Agricredit loans.
“7. I am also very familiar with the sale of farm equipment in north central Montana. Almost all farm equipment is sold by implement dealers in the farm publication commonly known as ‘The Prairie Star.’ It is on very remote occasions that any farm equipment is ever sold by an implement dealer in [the] weekly newspapers commonly referred to as ‘The Cut Bank Pioneer Press’ or ‘The Shelby Promoter’ for the reason that farmers simply do not read these advertisements in looking for quality farm equipment.
“8. I am very familiar with the 1982 Massey Ferguson 850 combine. This combine was sold by my business to Mr. Omar Michels. The combine was in excellent condition at the time Mr. Michels delivered the combine to Agricredit Acceptance Corporation. It had very few hours on it. In Fall 1988, this combine had a book value of $30,325.00. In addition, the headers had individual values as follows: 24 foot header — $2,123.00; 13 foot header — $1,512.00. Attached to my affidavit is the ‘Official Guide Tractors and Farm Equipment’ published by the National Farm & Power Equipment Dealers Association for this combine.
“9. It is my opinion, based upon my experience as a Massey Ferguson implement dealer, that this combine would have sold higher than simply the book value due to its excellent condition if it had been properly advertised. I know the person, Jim Edwards, who bought the combine at the repossession sale. This individual feels that he got a ‘steal.’ Since Mr. Edwards has purchased this machine, there has been very little work required as it was a quality, well-maintained machine at all times.
“10. I am also familiar with the 1977 Versatile Series II 4 wheel drive tractor. I took this tractor in on trade and subsequently sold it to Mr. Michels. In 1988, the tractor had a new engine and a new axle installed. In addition, the tractor had excellent tires at the time the tractor was delivered to Agricredit Acceptance Corporation. Once again, based upon my opinion knowing the condition of the tractor and the trade area, this tractor would have sold if properly advertised in the area of $30,000.00. [Signed by Sherwin Palmer; dated October 26, 1990.]”

The District Court found that Agricredit satisfied its obligation of conducting commercially reasonable sales of the combine and tractor.

We hold that the District Court erred in granting summary judgment in view of Mr. Palmer’s affidavit set forth above, which raised a genuine issue of material fact concerning whether the sales were commercially reasonable. The judgment of the District Court is reversed and the case remanded.

JUSTICES TRIEWEILER, GRAY, McDONOUGH and WEBER concur.


text:
    In re the MARRIAGE OF JOHN J. DRISCOLL, III, Joint Petitioner, Respondent and Cross-Appellant, and CHRISTINA M. POWELL-DRISCOLL, Joint Petitioner, Appellant and Cross-Respondent.
    No. 91-276.
    Submitted on briefs Aug. 29, 1991.
    Decided Sept. 24, 1991.
    250 Mont. 28.
    817 P.2d. 702.
    Peter S. Lineberger, Lineberger & Walsh, P.C., Bozeman, for joint petitioner, appellant and cross-respondent.
    Brenda Riley Cole and Bonnie Swandal, Swandal & Douglass Law Firm, Livingston, for joint petitioner, respondent and cross-appellant.
   JUSTICE HARRISON

delivered the Opinion of the Court.

John J. Driscoll III and Christina M. Powell-Driscoll, as joint petitioners, commenced dissolution of their marriage in the Eighteenth Judicial District, Gallatin County, Montana. The District Court entered its decree on November 26, 1990, and both parties appeal. We affirm in part and modify in part.

The parties present a number of arguments to support their theories and positions. We address only the most significant issue: Did the District Court err by decreeing that the sum of $22,500, plus interest, awarded to the husband and to be paid by the wife, was not dischargeable in bankruptcy?

John and Christina were married in Coeur d’Alene, Idaho, on February 28,1976. Two children were born to the parties during their fourteen-year marriage. Throughout the course of the marriage the parties acquired various residential and business properties. The most significant assets include a day care business, a retail camera shop and the family residence. The properties were financed by gifts, loans, fire insurance proceeds, advancements on life insurance, cash from stock liquidation, wages, and rental property proceeds. Throughout the marriage, the parties jointly contributed time and effort to the maintenance of the properties and businesses. They cooperated in operating the businesses and often worked together in the ventures in various capacities. After nearly fourteen years of marriage, the couple began to experience marital difficulties and in 1989, the wife filed a motion requesting exclusive control of the camera business. The husband agreed to stop working at the camera business in 1989, and the dissolution proceeding took place on July 23,1990.

The District Court entered the decree on November 26, 1990, which addressed child custody, visitation, child support, medical coverage for the children, property valuation and distribution issues. Both parties appeal on various issues.

On appeal, we will not overturn the district court’s judgment distributing marital property unless the court has abused its discretion. Marriage of Dzivi (Mont. 1991), [247 Mont. 165,] 805 P.2d 567, 568, 48 St.Rep. 140. We find that the District Court based its decision on substantial credible evidence. Except for the bankruptcy issue addressed later in this opinion, the District Court’s holdings on all other matters, including payment of equity and visitation revisions, will remain undisturbed.

Prohibition of Discharge of Indebtedness in Bankruptcy:

The District Court stated in findings of fact #14 A) that:

“The amount due husband shall not be dischargeable in bankruptcy and shall be considered as personal obligation of wife regardless of the future financial condition of The Camera Shop. [Emphasis in original.]”

Such a statement, while meant to prevent the wife from obtaining an equitable division of the assets and then essentially retaining the entire marital estate via a bankruptcy proceeding, is nevertheless improper in the District Court’s findings and decree. Here, the District Court awarded the wife sole ownership of the couple’s day care business and retail camera shop according to her wishes. The court awarded the husband the family home on which he assumed all debt.

The record indicates continued reluctance on the part of the wife to compensate the husband for his interest in the camera shop. Further, there is evidence to show that the wife has threatened bankruptcy to discharge the payment obligation to the husband. She alone has the opportunity to sell or operate the businesses as she sees fit, but in obtaining the businesses, she must pay the husband for his interest.

One of the marital assets addressed by the court was the camera shop which it distributed to the wife with a net fair value of $45,000. The court decreed that the husband was to receive $22,500 from the wife as his share of the camera shop, with interest of 10% per annum until paid. The court further decreed that this amount due the husband shall not be dischargeable in bankruptcy, and shall be a personal obligation of the wife.

The United States Bankruptcy Code, 11 U.S.C. § 523(a)(5), provides that:

“A discharge under section 727, 1141, 1228(a), 1228(b) or 1328(b) of this title does not discharge an individual debtor from any debt... (5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that... (B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support;...”

The District Court’s decree prohibiting discharge of indebtedness in bankruptcy denying the wife’s rights under the Bankruptcy Code is error. The District Court did not find and decree that the $22,500 awarded to the husband was for alimony, maintenance or support.

Accordingly, the final decree is reversed with regard to the inclusion of the statement prohibiting a discharge of indebtedness in a bankruptcy proceeding.

The judgment, decree, findings of fact and conclusions of law of the District Court are modified by striking therefrom the provision that the $22,500 awarded to the husband and to be paid by the wife is not dischargeable in bankruptcy. The judgment, decree, findings of fact and conclusions of law are otherwise affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES TRIEWEILER, HUNT and WEBER concur.


author: JUSTICE WEBER JUSTICE TRIEWEILER,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CURTIS ALAN PAULSON, Defendant and Appellant.
    No. 90-163.
    Heard March 6, 1991.
    Submitted April 4, 1991.
    Decided September 13, 1991.
    250 Mont. 32.
    817 P.2d. 1137.

      Kenneth R. Olson argued, Great Falls, for defendant and appellant.
    Marc Racicot, Atty. Gen., George Schunk argued, Asst. Atty. Gen., Helena, Patrick L. Paul, County Atty., Stephen E. Hagerman, Deputy County Atty., Great Falls, for plaintiff and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Defendant, Curtis Alan Paulson, was convicted of the offense of criminal possession of dangerous drugs with the intent to sell, a felony pursuant to § 45-9-103, MCA, following a jury trial in the District Court for the Eighth Judicial District, Cascade County. Defendant appeals. We affirm.

The issues as restated are:

1. Must accomplice testimony as to other crimes, wrongs or acts be corroborated before it is admissible?

2. Should this Court adopt a sufficiency of the evidence standard of proof which must be met before evidence of other crimes, wrongs or acts is admissible?

3. Did the District Court err when it admitted testimony of other crimes, wrongs or acts of the defendant?

4. Was the defendant denied his right to effective assistance of counsel under the Sixth Amendment to the United States Constitution?

5. Was the evidence sufficient to support a verdict of guilty on the charge of criminal possession of dangerous drugs with intent to sell?

6. Does the sentence imposed constitute an excessive sanction in violation of the defendant’s rights under the Eighth Amendment to the United States Constitution and Art. II, § 22 of the Montana Constitution?

As background information, we summarize the evidence as submitted by the State. Where necessary, we will set forth additional information. The defendant, Curtis Paulson, ran a marijuana importing and distribution business in Great Falls, Montana for a period of at least ten years. This evidence showed the following general pattern of operation. Paulson imported the marijuana from a grower in Hawaii. The marijuana was delivered by UPS to various addresses in Great Falls. Each package weighed from 15 to 40 pounds and consisted of compressed bales of marijuana. The smell of the marijuana was suppressed through the use of multiple layers of plastic wrapping, duct tape, and baking soda to avoid detection by drug-sniffing dogs at airports.

Paulson arranged to have the marijuana packages shipped to different addresses using incorrect first names for the recipients. Each recipient accepted the package from UPS and then marked the package “Return to Sender”. The package was allowed to sit for a few days. This precaution was intended to create an alibi if law enforcement personnel traced the packages, obtained a search warrant, and seized the boxes. The recipient could claim the boxes did not belong to him because the name was incorrect and were waiting to be picked up by UPS. After the cautionary waiting period, Paulson either picked up the marijuana from the recipient or left the boxes with the recipient for storage until needed for sale. Paulson and the recipient broke up the marijuana as needed for sale, and weighed the marijuana and placed marketable quantities in plastic ziplock baggies.

In November, 1988, the Great Falls Police Department’s drug investigation led to a confidential informant who made several controlled buys of marijuana from Doug Smith at his home. A search of Doug Smith’s home resulted in seizure of approximately four and one-half pounds of marijuana, a scale, cash, plastic baggies, and other paraphernalia typically used in sale operations. Doug Smith gave a detailed statement to the police and identified Curtis Paulson as his source of the marijuana. This information confirmed other sources that had over the past several years identified to authorities that Curtis Paulson was a major drug dealer in Great Falls.

The State Identification Bureau tested the items seized from Doug Smith’s home and found Curtis Paulson’s fingerprints on one of the bags of marijuana and on one of the baggies found with the scale. Paulson presented evidence to explain his fingerprints on the baggies found in Doug Smith’s home through testimony of a witness who had observed Paulson and Doug Smith cleaning game birds in Doug Smith’s back yard and placing the birds into baggies for freezing.

A search of Curtis Paulson’s residence resulted in the seizure of 1,000-watt grow lamps, a hood, a timer, tubing, planters, a carbon dioxide dispenser, transformers, shipping boxes and labels, false picture identification cards, financial and banking records, and cash. No marijuana was found during the search.

I.

Must accomplice testimony as to other crimes, wrongs or acts be corroborated before it is admissible?

Over objections of defense counsel, the State presented testimony from two admitted Great Falls drug dealers that detailed Curtis Paulson’s importation and distribution scheme in Great Falls spanning at least ten years. Jarl Garber and Dale Davidson both had previously received UPS shipments of marijuana from Hawaii for Paulson in a manner similar to that described by Doug Smith. The testimony indicated that Paulson only used a recipient two or three times and then arranged delivery to a different recipient. Both Garber and Davidson were previous recipients of marijuana shipments for Paulson. Neither Garber nor Davidson were involved in any manner in the drug shipments for which Paulson was charged.

Paulson argues that § 46-16-213, MCA, requires corroboration of Smith’s accomplice testimony to convict Paulson and therefore the same standard should apply to the accomplice testimony of Garber and Davidson as to other crimes, wrongs or acts. Section 46-16-213, MCA, states:

“A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, as defined in 45-2-301, unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. (Emphasis supplied.)”

Section 46-16-213, MCA, prohibits a conviction on the testimony of a person legally accountable for the same offense unless that testimony is corroborated by other evidence. Neither Garber nor Davidson were chargeable with the crimes for which Paulson was convicted. We conclude there is no basis for applying § 46-16-213, MCA, to the testimony of Garber and Paulson.

We hold that as to crimes, wrongs or acts other than those upon which the defendant is charged, accomplice testimony need not be corroborated before it is admissible.

II.

Should this Court adopt a sufficiency of the evidence standard of proof which must be met before evidence of other crimes, wrongs or acts is admissible?

Defendant also argues that this Court should adopt a rule that before admitting the testimony the District Court must determine that the sufficiency of the evidence would support a finding by a jury that the defendant committed the other crimes, wrongs or acts. Huddleston v. United States (1988), 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771. Huddleston addressed the issue of the rule or standard to be applied in federal courts in determining the admissibility of other crimes, wrongs or acts evidence under Rule 404(b), Fed.R.Evid.

In Montana, the Modified Just Rule determines the admissibility of other crimes, wrongs or acts under Rule 404(b), M.R.Evid. State v. Matt (Mont. 1991), [249 Mont. 136,] 814 P.2d 52, 55, 48 St.Rep. 614, 616. Neither the old Just Rule under State v. Just (1979), 184 Mont. 262, 602 P.2d 957, nor the new Modified Just Rule in Matt incorporate a sufficiency of the evidence standard. While developing the Modified Just Rule in Matt, this Court considered imposing a standard of review in addition to the Modified Just Rule and concluded that the incorporation of Rules 404(b) and 403, M.R.Evid., into the Modified Just Rule was adequate protection against improper admissibility of Rule 404(b) evidence. This Court concluded that a separate standard of review was neither necessary nor compatible with the Modified Just Rule. Upon reconsideration in this case we decline to impose such a standard of review to be used in addition to the Modified Just Rule in determining the admissibility of Rule 404(b) evidence.

III.

Did the District Court err when it admitted testimony of other crimes, wrongs or acts of the defendant?

The defendant objected to two aspects of other crimes evidence. The first was the testimony by Garber and Davidson with regard to the shipment of drugs. The second was the objection to the testimony of Detective Lockerby that the 1,000-watt grow lamps, hood, timer, tubing, planters, carbon dioxide dispenser, and transformers were also evidence of a marijuana operation and admissible as other crimes evidence. Defendant asserts the other crimes testimony was highly prejudicial and improperly admitted under the Just Rule. Just, 184 Mont. 262, 602 P.2d 957.

We will analyze the contentions on the part of the defendant under the Modified Just Rule as adopted in State v. Matt. The Modified Just Rule states:

“(1) The other crimes, wrongs or acts must be similar.
“(2) The other crimes, wrongs or acts must not be remote in time.
“(3) The evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
“(4) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

Element (1) of the Modified Just Rule requires that the other crimes, wrongs or acts be similar. With regard to the testimony of Garber and Davidson, such evidence related to Paulson’s involvement in the distribution and sale of marijuana. Such testimony described methods of shipping marijuana from Hawaii to the witnesses in Great Falls, in a manner directly comparable to the method used in connection with the charged crimes as testified to by Smith. We conclude that element (1) has been met so far as the Garber and Davidson testimony is concerned.

Defendant argues that the evidence of the possession of grow equipment is not similar to the charged offense. Detective Lockerby testified the equipment included 1,000-watt bulbs and transformers used to change voltage from 110 volts to about 400 volts as needed, because of the amount of energy required by the light; and that grow equipment of this type and size is circumstantial evidence of an operation consistent with the cultivation of marijuana with intent to sell. We point out that the evidence was admissible as a part of the corpus delicti of the charged offenses. With regard to element (1) of the Modified Just Rule, the method by which Paulson had the grow equipment shipped was similar to the method by which Paulson had the marijuana shipped from Hawaii. Detective Lockerby testified that the shipping label on the package used for the shipping of the grow equipment was addressed to “Jim Garber,” at a Great Falls address. He further testified that the person who lived at that address was “Jarel Garber.” This allowed recipient Garber to retain the package for several days so that he could contend it was not addressed to him should police authorities investigate. We conclude that the admission of the grow equipment has met the requirements of element (1) of the Modified Just Rule.

Under element (2) of the Modified Just Rule, defendant argues that the testimony on the part of Garber and Davidson established offenses too remote in time. Garber testified he had received a marijuana shipment two and one-half years before trial. Davidson testified that the defendant had been shipping marijuana from Hawaii for at least ten years. The District Court concluded that the testimonies showed a continuous pattern of conduct by the defendant and were therefore admissible.

In State v. Tecca (1986), 220 Mont. 168, 172, 714 P.2d 136, 139, this Court quoted from State v. Doll (1985), 214 Mont. 390, 692 P.2d 473, stating:

“Whether evidence of prior crimes is too remote is directed to the discretion of the district court and is a matter that goes to the credibility of the evidence rather than its admissibility, unless the remoteness is so great that the proffered evidence has no value.
‘We agree that an isolated incident from nine years ago is too remote; however, where there is a continuing pattern of similar conduct, the remoteness problem is alleviated ....”

The testimony of Garber and Davidson demonstrated that the defendant’s conduct had occurred in a consistent manner over a period of close to ten years. We affirm the conclusion of the District Court that the Garber and Davidson testimony was not too remote in time under element (2) of the Modified Just Rule.

So far as the evidence on grow equipment shipment is concerned, this evidence clearly was not remote in time. It occurred during the course of the commission of the acts charged. We conclude that the grow equipment evidence was not too remote in time under element (2) of the Modified Just Rule.

The State introduced the testimony of Garber and Davidson for the purpose of showing a common scheme, plan or system. This is a permissible purpose under element (3) of the Modified Just Rule. Matt, 814 P.2d at 55, 48 St.Rep. at 616. We conclude that the Garber and Davidson testimony tended to establish a plan and was properly admissible under element (3) of the Modified Just Rule.

With regard to the grow equipment evidence, we have previously pointed out that the method of shipment was directly comparable to the method of shipment used with regard to marijuana. In addition, the grow equipment of the type and size found at Paulson’s residence is circumstantial evidence of an operation consistent with the cultivation of marijuana with intent to sell. We conclude that the grow equipment testimony was admissible under element (3) of the Modified Just Rule.

With regard to element (4) of the Modified Just Rule, the defendant argues that the probative value of the other crimes evidence was substantially outweighed by the unfair prejudice of its admission so the evidence should not have been admitted. We conclude that as to the testimony of Garber and Davidson, and the evidence of the grow equipment, because the first three elements of the Modified Just Rule have been met, the probative value of the evidence has been established. See State v. Ramstad (1990), 243 Mont. 162, 168, 793 P.2d 802, 806. We must next determine if unfair prejudice under element (4) of the Modified Just Rule is sufficient to outweigh the established probative value. In Matt, by the adoption of the Modified Just Rule, we clarified the procedural protections that are required under that Rule to protect against unfair prejudice. These procedures include:

“(1) Evidence of other crimes, wrongs or acts may not be received unless there has been written notice to the defendant that such evidence is to be introduced. The notice to the defendant shall specify the evidence of other crimes, wrongs or acts to be admitted, and the specific Rule 404(b) purpose or purposes for which it is to be admitted.
“(2) At the time of the introduction of such evidence, the trial court shall explain to the jury the purpose of such evidence and shall admonish it to weigh the evidence only for such purposes.
“(3) In its final charge, the court shall instruct the jury in unequivocal terms that such evidence was received only for the limited purposes earlier stated and that the defendant is not being tried and may not be convicted for any offense except that charged, warning them that to convict for other offenses may result in unjust double punishment.”

Matt, 814 P.2d at 56, 48 St.Rep. at 616.

Defendant challenges the adequacy of the Just notices. The State served several Just notices. The initial Just notice generally stated that the State intended to introduce other crimes evidence to show motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Such notices do not meet the specificity required in a Modified Just notice. See State v. Croteau (Mont. 1991), [248 Mont. 403,] 812 P.2d 1251, 48 St.Rep. 484, 486-87.

However, subsequent Just notices did meet the requirements of the Modified Just Rule. Two of such subsequent notices qualified the general statement by pointing out that the State intended to present other crimes evidence to show:

“[Additional evidence of drug dealing which corroborates Doug Smith’s testimony to-wit: showing a common pattern and scheme of Defendant to ship narcotics to individuals other than himself using a different first name for that individual; that the Defendant shipped drug paraphernalia to [name of witness] in the same manner as shipments of narcotics were made to other people, which ultimately would go to Defendant. (Emphasis supplied.)”

Two other notices followed the general statement with:

“[T]he drug dealings of Curtis Paulson and his relationship with Doug Smith, who is the State’s witness in this case, including prior shipments of marijuana sent to Smith and other information dealing with drugs between them. The specific actions are found in the statement of Doug Smith taken by Detectives Larry Renman and Bryan Lockerby on May 2, 1989, a copy of which has been supplied to defense counsel.”

Those Just notices did adequately advise the defendant as to the matters to be included in the testimony of the other crimes witnesses. We conclude that the first procedural requirement under the Modified Just Rule was met in this case as to both the testimony of Garber and Davidson, and the evidence with regard to the shipment of grow equipment.

The District Court clearly satisfied the second procedural requirement of the Modified Just Rule which requires the trial court to explain to the jury the purposes of the evidence and to admonish the jury to weigh the evidence only for such purposes. The required admonition was given to the jury by the District Court at all critical points and on four different occasions. We conclude that the second procedural requirement of the Modified Just Rule was met.

The third procedural requirement is that the court instruct the jury in unequivocal terms. Here, Instruction No. 16, given at the conclusion of the trial is identical to the instruction this Court has approved as meeting such third procedural requirement. Tecca, 220 Mont. at 174, 714 P.2d at 140. We conclude that the third procedural requirement of the Modified Just Rule was met. We conclude that the procedural protections contained in the three elements of the Modified Just Rule were met in this case.

This leaves for evaluation whether or not unfair prejudice to the defendant outweighed the established probative value as described in element (4) of the Modified Just Rule. 10 James Wm. Moore, Moore’s Federal Practice § 403.10, contains an excellent description of the nature of the unfair prejudice which is required under element (4) of the Modified Just Rule:

“To guide courts in balancing the ‘probative value’ and the ‘unfair prejudice’ of evidence, the Committee states that the latter term means evidence which has ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’ Application of this thought and the ultimate determination of admissibility are matters left to the discretion of the trial court and will necessarily be decided on a case by case basis. However, by restricting the rule to evidence which will cause ‘unfair prejudice’ the draftsmen meant to caution courts that mere prejudicial effect is not a sufficient reason to refuse admission. Probative evidence will frequently be prejudicial to a party, but that does not mean that it will cause the fact finder to ground a decision on an emotional basis. Thus, evidence which tends to horrify, evoke sympathy or increase a desire to punish due to a prior act of a party and whose probative value is slight may be properly excluded. (Emphasis added.) (Citations omitted.)”

After our review of the cases cited in support of the foregoing quote from Moore’s Federal Practice, we conclude that it is an appropriate definition of unfair prejudice. We therefore adopt the foregoing as the holding of this Court in defining unfair prejudice under element (4) of the Modified Just Rule.

In the present case, the testimony of Garber and Davidson, and the testimony with regard to the grow equipment was clearly prejudicial, but because it meets other aspects of the Modified Just Rule, that prejudice alone is not a sufficient reason to refuse admission. We conclude that the evidence is not of the type which would cause the jury to ground its decision on an emotional basis. The evidence is not of the type which tends to horrify, evoke sympathy or increase a desire to punish and whose probative value is slight. Here both aspects of the evidence are clearly significant to the issue of the commission by the defendant of the charged crimes. We therefore hold that the probative value of the Garber and Davidson testimony, and the evidence of the grow equipment, is not substantially outweighed by the danger of unfair prejudice or misleading of the jury under element (4) of the Modified Just Rule.

Considering the Modified Just Rule as a whole, we conclude that the four substantive elements of the Modified Just Rule, and the procedural elements of the Modified Just Rule, have been properly satisfied in this case. We hold that the testimony of Garber and Davidson and the evidence as to the grow equipment was properly admitted by the District Court as evidence of other crimes, wrongs or acts under the Modified Just Rule.

IV.

Was the defendant denied his right to effective assistance of counsel under the Sixth Amendment to the United States Constitution?

Defendant presents the following examples for his argument that he was ineffectively represented at trial: failure to formulate a workable trial strategy, failure to present a fingerprint expert, failure to adequately interview witnesses before trial, failure to object to critical evidence, failure to properly instruct the jury, and failure to present an effective closing argument.

In State v. Kolberg (1990), 241 Mont. 105, 109, 785 P.2d 702, 704, we stated:

“Ineffective assistance of counsel requires specific acts or omissions which prejudice defendant’s case and result in the denial of a fair trial... First the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. To show prejudice, a defendant must show that, but for counsel’s unprofessional errors, there was reasonable probability that the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. (Citations omitted.)”

In order for trial errors to rise to the level of ineffective assistance of counsel, those errors must stem from neglect or ignorance rather than from informed, professional deliberation. State v. Morigeau (1982), 202 Mont. 36, 44, 656 P.2d 185, 189. This Court will not second-guess counsel’s trial tactics and strategies and, where no prejudice is shown, counsel’s professional deliberations will not be questioned. State v. Stewart (1988), 235 Mont. 239, 242, 767 P.2d 296, 298. The record contains no factual basis to support an argument that the alleged failures on the part of defendant’s trial counsel stemmed from neglect or ignorance. Defendant fails to point to any evidence that proves his counsel’s actions were anything other than trial tactics and strategies, or that his counsel’s actions deprived him of a fair trial. We find no merit in defendant’s contention that he was deprived of his right to effective assistance of counsel.

V.

Was the evidence sufficient to support a verdict of guilty on the charge of criminal possession of dangerous drugs with intent to sell?

The defendant argues that his conviction for possession of dangerous drugs with intent to sell was not supported by sufficient evidence because the State failed to provide sufficient independent corroborating evidence to support the testimony of the accomplice, Doug Smith. In prior cases we have summarized the guidelines for testing the sufficiency of corroborating evidence:

“To be sufficient, corroborating evidence must show more than that a crime was in fact committed or the circumstances of its commission. It must raise more than a suspicion of the defendant’s involvement in, or opportunity to commit, the crime charged. But corroborative evidence need not be sufficient, by itself, to support a defendant’s conviction or even to make out a prima facia case against him. Corroborating evidence may be circumstantial and may come from the defendant and his witnesses ...
“Corroborating testimony is viewed in a light most favorable to the State. The corroborating evidence need only tend to connect the defendant with the crime charged and need not extend to every fact to which the accomplice testifies. Thus, corroborating evidence is not insufficient merely because it is circumstantial, disputed, or possibly consistent with innocent conduct, it is the jury’s duty to resolve such factual questions. (Cites Omitted.) [Emphasis added.]”

State v. Kaczmarek (1990), 243 Mont. 456, 459-60, 795 P.2d 439, 441-42.

In the present case Doug Smith’s testimony was corroborated by circumstantial evidence. Two of defendant’s fingerprints were found on baggies found in Doug Smith’s home that were used for packaging and marketing the marijuana. One of these baggies contained marijuana, the other baggie was found with other drug paraphernalia. Telephone records of the defendant’s residence verified that six phones calls were made to the supplier in Hawaii in the two week period prior to one of the shipments of marijuana to Doug Smith’s home.

UPS records verified Doug Smith’s testimony as to the dates of shipments and use of incorrect first names on shipping labels. The UPS witness also testified that it takes exactly three business days to receive a shipment from Hawaii. One of the shipments to Doug Smith’s home arrived exactly three business days following the sixth phone call made from defendant’s residence to the supplier in Hawaii.

Doug Smith’s testimony was also corroborated by the testimonies of Garber and Davidson. Both of these witnesses gave similar detailed accounts of the method used when they received drug shipments from Hawaii for the defendant. Jarl Garber testified that he had also received a shipment of drug growing equipment for Paulson. Shipping labels found with the growing equipment at the residence of Paulson were addressed to “Jim” Garber, 1305 5th Avenue Northwest, Great Falls, Montana.

Corroborative evidence must clearly (1) be independent, (2) point toward the defendant’s guilt, and (3) provide a legally sufficient connection between the defendant and the offense. Kaczmarek, 795 P.2d at 442. Here the evidence meets this three part test, thus corroborating Smith’s testimony and tending to establish Paulson’s guilt.

The proper standard of review for sufficiency of the evidence in a criminal case is whether, after viewing 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. Kaczmarek, 795 P.2d at 442. Having determined that Smith’s testimony was sufficiently corroborated by the physical evidence and by the corroborating testimonies of Garber and Davidson, the essential elements of possession of dangerous drugs with intent to sell have been met. Clearly, a rational jury could have found the defendant guilty in this case. We hold that the evidence was sufficient to support a verdict of guilty on the charge of criminal possession of dangerous drugs with intent to sell.

VI.

Does the sentence imposed constitute an excessive sanction in violation of the defendant’s rights under the Eighth Amendment to the United States Constitution and Art. II, § 22 of the Montana Constitution?

Defendant received a twenty year sentence with five years suspended. He will not be eligible for parole for five years. In addition he was assessed a $30,000.00 fine and had his hunting privileges suspended during the twenty year period.

Defendant’s counsel prepared an affidavit containing computations based on sentencing statistics prepared by the Montana State Judicial Information Center outlining the sentences imposed in 1988 and 1989 for offenses of possession of dangerous drugs with intent to sell. Based on those statistics, defendant argues that his sentence is especially harsh for a first time offender and violates the United States and Montana Constitutions’ prohibitions against imposition of excessive sanctions.

Section 45-9-103(3), MCA, sets forth the sentence guidelines for criminal possession with intent to sell. That provision states:

“A person convicted of criminal possession with intent to sell ... shall be imprisoned in the state prison for a term of not more than 20 years or be fined an amount not to exceed $50,000, or both.”

The District Court stated its reasons for defendant’s sentence as follows:

“1. Testimony during trial established that this was a sophisticated operation wherein the Defendant attempted to insulate his activities through the use of other people. Testimony also revealed that the Defendant has been involved in drug dealings for approximately twelve years.
“2. The Defendant had a large income which was not explained to the Court’s satisfaction. There was testimony at the Sentencing hearing that much of the Defendant’s income had not been reported for tax purposes. There was farther testimony that the Defendant was engaged in money laundering.
“3. The Court considered the harm to society.
“4. The Court considered the recommendation contained in the Pre-Sentence Report, but notes that the officer who prepared the report was not present during the trial and did not have the benefit of hearing all the testimony. Furthermore, the officer did not have the benefit of the testimony which the State presented during the sentencing hearing.
“5. This court heard testimony from Det. Renman, that the total shipment containing some of the drugs introduced at trial had a wholesale value of approximately $27,000.00. The court is of the opinion that there should be no profit from the illegal sale of drugs. Furthermore, the Court feels that it is appropriate that those dealing in drugs ought to pay for some of the costs associated with the detection and prosecution of drug offenders and for these reasons fined the Defendant $30,000.00.
“6. The Defendant is an admitted non-user of drugs, yet he was possession of dangerous drugs with intent to sell. The Defendant is not an addict dealing to supply his own habit. The Defendant’s motive is simply money.
“7. The Probation and Parole Officer recommended that the Defendant was not to hunt with a gun during the suspended portion of his sentence. This provision was made to comply with Federal Laws prohibiting a convicted felon from possessing a gun.
“8. In declaring the Defendant ineligible for parole for the first five years of his sentence it was the Court’s intention that the Defendant serve more than a token few months in the penitentiary. The facts and seriousness of this case have caused this Court to be concerned. The Defendant had a well planned operation which allowed him to escape the law for many years. Grow lights were found at the house of the Defendant. The State of Montana characterized the Defendant as a ‘major drug dealer’. The Court cannot fix any mitigating factors other than this is the first time the Defendant has been caught and sentenced.”

These reasons set forth by the District Court are well-reasoned and supported by the evidence. The sentence itself is within the guidelines set forth in § 45-9-103(3), MCA. We hold that the sentence imposed does not constitute an excessive sanction in violation of the defendant’s rights under the Eighth Amendment to the United States Constitution and Art. II, § 22 of the Montana Constitution.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, McDONOUGH and GRAY concur.

JUSTICE TRIEWEILER,

dissenting:

I dissent from the majority’s conclusion that accomplice testimony regarding past crimes, wrongs, or acts of the defendant, other than those charged, need not be corroborated before it is admissible. I conclude, based upon established precedent and logic, that it does need to be corroborated; and since such testimony was admitted in this case without corroboration, I would reverse the conviction of the defendant. For that reason, I would not reach the merits of the other issues raised by the defendant on appeal.

In Huddleston v. United States (1988), 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771, in discussing the circumstances under which evidence of other acts could be admitted under Fed.R.Evid. 404(b), the United States Supreme Court stated that:

“We conclude that such evidence should be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act.”

Huddleston, 485 U.S. at 685, 108 S.Ct. at 1499, 99 L.Ed.2d at 779-80.

Under Montana law, the testimony of a co-conspirator, unsupported by independent corroborating evidence, is not sufficient to convict a defendant of the criminal act with which he is charged. The reasons are obvious.

Testimony of co-conspirators is among the most unreliable forms of evidence available. Co-conspirators to a criminal act are, by definition, dishonest people to begin with. Added to their presumed character weaknesses there are invariably inducements for their testimony, such as lenient or favorable treatment from the State for their own criminal conduct.

For example, in this case all three of the co-conspirators who testified that the defendant engaged in prior criminal acts had been caught selling drugs and bargained with the State of Montana for lenient treatment in exchange for their testimony against the defendant. Smith was charged with the same crime for which the defendant was convicted. The defendant was sentenced to 20 years in prison with five years suspended and required to serve a minimum of five years without parole. Smith was sentenced to five years in prison with all five years suspended.

Dale Davidson was also charged with possession of drugs with intent to sell, but was promised that in exchange for his testimony the government would recommend a maximum sentence of 18 months, as opposed to the five years to which he would be exposed without favorable testimony.

Jarl Garber was promised that in exchange for his testimony he would be charged with only one attempt to sell cocaine, rather than three. At the time of defendant’s trial, that charge had still not been filed. He gave the following testimony:

“Q. And what did they say they would do for you?
“A. Drop two counts of my sales.
“Q. Sale of cocaine?
“A. Correct.
“Q. Are you generally aware of the penalty for possession of cocaine?
“A. Iam.
“Q. It’s a big one?
“A. Yes, it is.
“Q. Have you been charged?
“A. No, I have not.
“Q. So they got ya. They got you right where they want you?
“A. (Nods head.)”

If an attorney practicing civil law in the State of Montana went to the lengths that the State regularly goes to in order to induce testimony from co-conspirators he would be subject to disciplinary proceedings for violation of Rule 3.4 of Montana’s Rules of Professional Conduct. Yet, such conduct is freely permitted in the prosecution of criminal cases when inducing testimony of witnesses as disreputable as those who testified against the defendant in this case.

The majority seeks to distinguish testimony of co-conspirators when used simply to prove uncharged prior crimes from testimony of co- conspirators which is offered to prove the crime that has been charged. However, the distinction is one of form rather than substance. The fact is that the evidence of prior crimes was offered in an effort to convict the defendant of the crime charged, even though we have a stated public policy in § 46-16-213, MCA, that such evidence is unreliable without corroboration.

The majority has offered no authority for permitting uncorroborated testimony of an accomplice to prove prior crimes, when by statute, such testimony could not have been offered to prove the crime charged. However, there is prior authority for excluding this evidence.

Texas has a statute similar to § 46-16-213, MCA. Article 38.14, Tex. Code Crim. Proc. Ann., dealing with Testimony of Accomplice, states:

“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”

The Texas Court of Appeals, in Bustamante v. State (Tex.Ct.App. 1982), 653 S.W.2d 846, 849, rev. dismissed 702 S.W.2d 193 (Tex. Crim. App. 1985), concluded that based on that state’s similar statute the trial court erred when it admitted extraneous offenses based solely upon uncorroborated testimony of an accomplice. The court in Bustamante relied upon the 1931 case of Wells v. State (1931), 118 Tex. Crim. 355, 42 S.W.2d 607, which “held that it was necessary to corroborate evidence of extraneous offenses in reversing a conviction for possession of liquor for purposes of sale.” Bustamante, 653 S.W.2d at 848-49. Furthermore, the court in Bustamante stated:

“We conclude that the intent of the legislature in enacting § 38.14 Tex. Code Crim. Pro. Ann. was to make its terms applicable to extraneous offenses as well as to primary offenses. Therefore, in the case before us it was error to admit this uncorroborated evidence of extraneous offenses and, having admitted it, to refuse to give the jury a proper limiting charge.”

Bustamante, 653 S.W.2d at 849.

It makes no sense to establish by statute a public policy to the effect that people of Montana cannot be convicted of a criminal charge based on the uncorroborated testimony of an alleged co-conspirator, but then allow the State to circumvent that public policy by convicting people with uncorroborated testimony of co-conspirators regarding acts that are not even the subject of the State’s charges. Either the testimony is unreliable or it is not. It cannot be unreliable if offered to directly convict the defendant, and reliable if offered to indirectly convict the defendant.

For these reasons I would reverse the judgment against the defendant and remand this case to the District Court for retrial. During retrial I would require that the testimony of the people who claim to have been partners in the defendant’s sale of drugs either be corroborated or excluded.

JUSTICE HUNT concurs in the foregoing dissent of JUSTICE TRIEWEILER.