author: CHIEF JUSTICE TURNAGE JUSTICE NELSON JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT DEE CLOSE, Defendant and Appellant.
    No. 93-370.
    Submitted on Briefs June 24, 1994.
    Decided September 15, 1994.
    51 St.Rep. 876.
    267 Mont. 44.
    881 P.2d 1312.

      For Appellant: Gregory A. Jackson, Jackson & Rice, Helena; and William F. Hooks, Appellate Defender, Helena.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Joseph E. Thaggard and Barbara C. Harris, Assistant Attorneys General, Helena; and Christopher Miller, County Attorney, Deer Lodge.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Robert Dee Close was convicted in a jury trial in the District Court for the Third Judicial District, Powell County, of burglary, five counts of deliberate homicide, and sexual intercourse without consent by accountability. He appeals. We affirm.

The issues are:

1. Did the District Court err in refusing to instruct the jury on the defense of necessity?

2. Did the court err in allowing admission of the autopsy photographs of the five homicide victims?

3. Did the court err in denying Close’s motion to dismiss on the ground that the State failed to preserve evidence?

Close concedes in his reply brief that a fourth issue raised in his opening brief was not properly preserved for appeal. Therefore, we shall not address that issue.

On September 22,1991, inmates in the maximum security unit at the Montana State Prison took control of the building. When correctional officers regained control four hours later, five protective custody inmates housed in cellblock D had been killed. The facts of the riot are set forth in greater detail in our opinion in State v. Gollehon (1993), 262 Mont. 293, 864 P.2d 1257.

Robert Close was an inmate on cellblock C of the maximum security unit at the time of the riot. The information filed against him charged him with burglary, five counts of deliberate homicide, and sexual intercourse without consent by accountability. As to the burglary charge, the information alleged that Close

knowingly entered or remained unlawfully in an occupied structure, the D block area of the maximum security unit, with the purpose to commit an offense therein, namely, Riot.

Each of the five separate deliberate homicide counts stated that

with the purpose of promoting or facilitating the offense of burglary, [Close] aided, abetted or attempted to aid other inmates in the maximum security unit in the planning or commission of the offense of burglary and in the course of said burglary, [Close] or other persons legally accountable for said burglary, caused the death of [one of the five victims].

The count of sexual intercourse without consent charged that Close,

with the purpose of promoting or facilitating the commission of the offense of Sexual Intercourse Without Consent, aided, abetted or attempted to aid Brian Spray in the planning or commission of the offense of Sexual Intercourse Without Consent against Inmate Doe.

The jury found Close guilty of all charges filed against him. He appeals.

ISSUE 1

Did the District Court err in refusing to instruct the jury on the defense of necessity?

In his defense to the State’s evidence at trial concerning his activities during the prison riot, Close testified that the only reason he entered cellblock D, where the five homicides occurred, was because an inmate housed on that cellblock asked him to come there. Close testified that he only entered D block in response to a message conveying the request of that inmate, Dan Willson; that he assured Willson he would do what he could to protect him from the other rioting inmates; and that he then returned to his own cellblock. He claims that he went to cellblock D of necessity, to prevent the imminent threat of death or serious bodily injury to Willson. Close offered two jury instructions concerning the defense of necessity, but the District Court refused both of them.

Close argues that the defense of necessity is a separate common law defense from the defense of compulsion now codified at § 45-2-212, MCA. However, at the settling of jury instructions, Close’s counsel acknowledged that “the statement of the law in regard to compulsion and necessity is said to be the same.” In State v. Ottwell (1989), 240 Mont. 376, 784 P.2d 402, this Court recognized that § 45-2-212, MCA, abandons the distinction between the related defenses of necessity, duress, and compulsion and represents a “statutory amalgamation.” “It brings together all of the related defenses, by whatever name called, under a single codification.” Ottwell, 784 P.2d at 404.

In City of Helena v. Lewis (1993), 260 Mont. 421, 860 P.2d 698, this Court restated the scope of the defense of necessity or compulsion under the statute: “[§ 45-2-212, MCA] does not excuse criminal conduct unless the person asserting the defense reasonably believes that death or serious bodily injury will be inflicted upon him if he does not perform the criminal act.” Lewis, 860 P.2d at 701 (emphasis in original).

Close’s claim that he was entitled to jury instructions on the necessity defense is based on an alleged threat of death or serious bodily injury to another person, Willson. Under our holding in Lewis, the necessity defense is limited to situations in which the defendant reasonably believes there is a threat against the defendant himself. The necessity defense has no application here.

If the jury had believed Close’s defense, it could have properly found that the burglary charge had not been proven because of failure of the State to establish the element of intent beyond a reasonable doubt. We hold that the District Court did not err in refusing Close’s offered instructions on the defense of necessity.

ISSUE 2

Did the court err in allowing admission of the autopsy photographs of the five homicide victims?

This Corut recently ruled that the same autopsy photographs which are at issue in this case were admissible in the trial of another person facing charges out of the September 22, 1991 riot at Montana State Prison. In Gollehon, 864 P.2d at 1263, we set forth the standard that, when considering whether photographs should be admitted as evidence at trial, the court must determine whether their probative value is substantially outweighed by the danger of unfair prejudice, citing Rule 403, M.R.Evid., and State v. Henry (1990), 241 Mont. 524, 788 P.2d 316. We noted that the autopsy photographs were offered in that case, as they were in the present case, to prove the means by which the victims were killed and to corroborate the testimony of the inmates who described what they heard or saw in cellblock D during the riot. We pointed ouu that although the photographs were graphic depictions of the assaults committed against the victims, they were only exhibited during the State Medical Examiner’s testimony and the jury was not allowed to take them into deliberations. That was also true in the present case. We concluded:

After considering the evidence in question, we are aware that the photographs depict the brutality and viciousness of the crimes committed. However, we do not believe that they would have aroused the jurors’ passions any more than other evidence of Gollehon’s conduct. As we stated in State v. Doll (1985), 214 Mont. 390, 400, 692 P.2d 473, 478, “[w]e will not demand that a trial be sanitized to the point that important and probative evidence must be excluded.” We, therefore, hold that the District Court did not abuse its discretion when it admitted the autopsy photographs into evidence.

Gollehon, 864 P.2d at 1263.

In this case, a juror fainted while the autopsy photographs were being displayed. The defense moved for a mistrial. Close argues that this distinguishes this case from Gollehon. We conclude that, while it may add a different twist, it does not require a different result under the circumstances here presented.

After the juror fainted, she was assisted from the jury box by two of the State’s witnesses, without verbal communication. The court immediately asked the other jurors to return to the jury room. When the juror was revived, she was taken into the judge’s chambers, where she told the judge and counsel for both parties that she had fainted without forewarning, probably because of the autopsy photos. Although she was willing to continue on the case, the court removed her from the jury and an alternate was substituted. When trial resumed the following morning, the court instructed the jury as follows:

During the course of this trial, there has been reason for the Court to replace one of the jurors with an alternate. That procedure, or the reason therefor, should not play any part in your deliberations regarding this case. If any of you feel that you cannot fairly and impartially take part in deliberations because of the replacement of the juror, or the reason therefor, please let the Court know at the next available break in the trial.

The defendant did not object to this instruction, and no juror contacted the court in response to it.

This Court has affirmed the use of alternate jurors to avoid a mistrial where no prejudice has been shown to a defendant from juror conduct. State v. Pease (1986), 222 Mont. 455, 724 P.2d 153; State v. Baugh (1977), 174 Mont. 456, 571 P.2d 779. Here, Close has not shown prejudice to his case as a result of the juror’s fainting while viewing the autopsy photographs. The juror who fainted and was assisted by the State’s witnesses was removed from the case. The involvement of the other jurors in this event was de minimus. The court offered, but none of them found necessary, the opportunity to disqualify themselves because of it.

We hold that the District Court acted within its discretion in admitting the autopsy photographs into evidence.

ISSUE 3

Did the court err in denying Close’s motion to dismiss on the ground that the State failed to preserve evidence?

Close argues that the State violated his due process rights by failing to preserve exculpatory evidence — his clothing which was turned in immediately after the riot. He contends that the absence of bloodstain on that clothing would support his defense.

In Gollehon, 864 P.2d at 1264-65, we held that the destruction of the prisoners’ clothing after the September 1991 prison riot did not constitute a deliberate suppression of valuable exculpatory evidence, and that, therefore, no deprivation of the right to due process occurred. Close argues that the incorrect standard was employed in Gollehon, and that the standard for preserving evidence, rather than the standard for gathering evidence, should have been used. He argues that even a negligent suppression of evidence is a denial of due process if the defense shows that the evidence was material, of substantial use, and exculpatory in that “it "[w]ould have tended to clear the accused of guilt, to vitiate a conviction,’ ” citing State, City of Bozeman v. Heth (1988), 230 Mont. 268, 272, 750 P.2d 103, 105.

Close has not shown that the clothing he turned in at the end of the riot was the clothing he wore throughout the riot. Further, an absence of bloodstain on the clothing would not establish that he did not enter cellblock D for the purpose of participating in the riot. He has not, therefore, shown that the clothing he turned in after the riot would be of substantial use and would have tended to clear him from guilt. We hold that the District Court did not err in denying Close’s motion to dismiss for failure to preserve evidence.

Affirmed.

JUSTICES HARRISON and WEBER concur.

JUSTICE NELSON

concurs.

I concur in the Court’s opinion. I agree that in City of Helena v. Lewis (1993), 260 Mont. 421, 860 P.2d 698, we unequivocally held that, by reason of language of § 45-2-212, MCA, the defense of necessity is not available where the person asserting the defense acts in the reasonable belief that death or serious bodily injury will be inflicted on someone other than himself or herself. See also City of Missoula v. Asbury (1994), [265 Mont. 14], 873 P.2d 936, in accord.

I suggest, however, that the restrictive language in our statutory law and our interpretations of that law leave the criminal defendant without a legitimate and important affirmative defense that was traditionally recognized at common law and which may very well be his or her only defense under the facts of a given case. While a defendant can always argue that he or she did not have the requisite mental state to commit the crime charged, that defense, in my experience, is rarely persuasive and certainly does not impact the jury with the same significance or force as does a recognized affirmative defense.

Whether § 45-2-212, MCA, was written to be restrictive by accident or by design, I respectfully submit that the statute should be amended to include a legitimate third-party necessity, justification, compulsion, duress, or “choice of two evils” defense.

JUSTICE TRIEWEILER

specially concurring.

I concur with Issues 2 and 3 of the majority opinion.

I specially concur with the result of Issue 1 of the majority’s opinion, but disagree with the majority’s reason for arriving at that result.

Specifically, I disagree that the common law defense of necessity is subsumed in and eliminated by the statutory defense of compulsion set forth at § 45-2-212, MCA. To the extent that City of Helena v. Lewis (1993), 260 Mont. 421, 860 P.2d 698, holds otherwise, I would reverse that decision.

In State v. Ottwell (1989), 240 Mont. 376, 784 P.2d 402, we recognized the common law defense of necessity and characterized it as follows:

The necessity defense has also been characterized by situations in which the defendant faced a choice between two evils. In this type of case, defendants argued that they were justified in breaking the law to prevent a greater harm than the law was intended to cure. Thus, in one case, the defendants claimed necessity as a defense to charges of smuggling Laetrile into the United States to treat cancer patients. United States v. Richardson (9th Cir. 1978), 588 F.2d 1235, 1239, cert. den. [(1979)] 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636. In another, a defendant who felt a moral obligation to fhistrate United States military efforts in Southeast Asia claimed necessity as a defense to charges of burning Selective Service System records. United States v. Simpson (9th Cir. 1972), 460 F.2d 515, 517-18.

Ottwell, 784 P.2d at 403-04.

While Ottwell did not pertain to a situation where a law was broken to prevent harm to a third person, this Court did hold that the codification of the defense of compulsion did not preclude retention of the defense of necessity under other circumstances. We retained the defense of necessity as it pertains to prisoners charged with escape. We held as follows:

We conclude that the compulsion statute and necessity doctrine of [State v.] Strandberg [(1986), 223 Mont. 132, 724 P.2d 710,] do not provide mutually exclusive defenses; they are complimentary. Strandberg is merely an application of the compulsion statute tailored to the circumstances of prison escapes. "When dealing with prison escapes, therefore, Strandberg provides the appropriate analysis.

Ottwell, 784 P.2d at 405.

Likewise, I conclude that the compulsion statute and the common law doctrine of necessity, as it pertains to the defense of third persons, are not mutually exclusive and would retain that common law doctrine. For that reason, I disagree with the majority’s conclusion under Issue 1.

However, in spite of my conclusion that the common law doctrine of necessity is a viable affirmative defense in Montana, I also conclude that the defense was inapplicable to the facts in this case.

The defense of necessity applies where someone violates the law to avoid the threat of harm to another. In this case, defendant was charged with burglary for knowingly entering and remaining in Cellblock D for the purpose of engaging in a riot. However, defendant denied that he entered Cellblock D for the purpose of engaging in a riot. His contention is that he entered Cellblock D only for the purpose of protecting an inmate who resided there. Therefore, by his own testimony, he did not violate the law to avoid the threat of harm to another, and the defense of necessity was not applicable in this case. For these reasons, I would affirm the District Court’s refusal to give defendant’s proposed instructions on the defense of necessity.


source: Caselaw Access Project

author: JUSTICE WEBER

license: Public Domain

text:
    RONALD C. KOEPPLIN, Plaintiff and Appellant, v. ZORTMAN MINING, INC., a Montana Corporation, Defendant and Respondent.
    No. 93-646.
    Submitted on Briefs May 26, 1994.
    Decided September 15, 1994.
    51 St.Rep. 880.
    267 Mont. 53.
    881 P.2d 1306.

      For Appellant: Jerrold L. Nye, Nye & Meyer, Billings.
    For Respondent: Steven J. Lehman, Crowley, Haughey, Hanson, Toole & Dietrich, Billings; Thomas E. Hattersley, IH, Gough, Shanahan, Johnson & Waterman, Helena.
   JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiff Ronald C. Koepplin appeals the Memorandum Opinion and Order of the District Court of the Seventeenth Judicial District, Phillips County, which granted defendant’s motion for summary judgment. We affirm.

The sole issue for review is whether the District Court erred in granting summary judgment in favor of the defendant on Koepplin’s claims for wrongful discharge, invasion of privacy and malice.

Ronald C. Koepplin (Koepplin) worked for Zortman Mining, Inc. (Zortman) from October 1991 until his termination on February 17, 1993, when Zortman discharged Koepplin from his job as a haul truck driver. Koepplin had worked at the Zortman mine in other capacities dating back to 1986 when the mine was under other ownership.

Frank Green (Green) supervised Koepplin. In January of 1993, Green noticed there was tension and discord among crew members. Upon inquiry of crew members, Green was told that Koepplin had been verbally deriding and “downgrading” co-employees, intimidating them and throwing items on the lunch bus. On February 14,1993, a female crew member reported to Green that she had experienced numerous incidents of egregious sexual harassment from Koepplin. Green transcribed the employee’s oral statement onto an Employer Personal File Entry form on February 14, 1993 and called Mine Superintendent Clayton Krall (Krall) because of the seriousness of the complaint.

On February 15, 1993, Zortman management employees Green, Krall, George Lytle (Lytle), and Jim Geyer (Geyer) began to investigate the complaints against Koepplin. Their investigation included interviews with persons who had witnessed Koepplin’s treatment of the female employee. These interviews indicated that there were more problems with Koepplin’s conduct than the sexual harassment incidents.

As a result of the interviews, Koepplin was called into Lytle’s office later that day to meet with Geyer, Krall and Lytle so that he could tell his side of the story involving the female employee and also his side of an incident involving a scuffle with another male employee. Koepplin denied the sexual harassment and termed the scuffle “calisthenics.” Krall advised Koepplin in detail regarding the complaint from the female employee; Koepplin denied the sexual harassment. At the conclusion of the meeting, Koepplin was suspended pending further investigation of the complaint and was asked to return the morning of February 17,1993 for another meeting with management. Koepplin was told specifically not to threaten or intimidate anyone involved in the investigation.

Despite being told not to threaten or intimidate investigators, Koepplin made telephone calls to his supervisor (Green) and the three other mine managers (Krall, Lytle and Geyer) after 10:00 p.m. that same evening. Krall, Lytle and Geyer all testified they felt threatened by Koepplin’s calls to them. Geyer testified that from the tone of voice and the words used, he felt threatened and believed that Koepplin was trying to intimidate him. Geyer immediately reported the threat to the Phillips County Sheriff.

The next day, after discovering Koepplin had similarly called other mine managers, Geyer provided the sheriff with information about these calls also. Geyer specifically reported Koepplin’s intent to take Lytle on a “trip to hell.” Koepplin testified in his deposition as follows:

[By Mr. Hattersley]... As you left the meeting from George’s office, when George, Jim, Clayton and you were there. You know what meeting I’m talking about, right, when they told you you were suspended. You know what meeting I’m talking about.
A. Yes, sir.
Q. You were also told that you were not to threaten or intimidate anyone involved in the investigation; isn’t that right?
A. Yes, sir.
Q. Clearly told that, right?
A. Yes, sir.
Q. Who told you that?
A. Jim Geyer.
Q. Then you called George Lytle, didn’t you?
A. Yes, sir.
Q. And you said to George, “Do you have a suitcase?”
A. I asked him.
Q. You asked him if he had a suitcase?
A. Yes, sir.
Q. Why did you ask if he had a suitcase? What was your purpose in asking that?
A. Because he was going to need it.
Q. “Why did you think he was going to need it? Did you tell him he was going to need it?
A. I asked him.
Q. You asked him if he had a suitcase?
A. Yes, sir.
Q. And you said the reason you asked is because you felt he was going to need it, right?
A. Best get £er packed.
Q. And that’s what you said to him, right?
A. Yes, sir.
Q. Why in your mind did you think that he needed a suitcase?
A. Because I do believe George Lytle is a lot of my problems here in this situation.
Q. But why would he need a suitcase if he’s part of your problem in your view?
A. At one time earlier, I called George Lytle a court jester.
Q. But why did you think he was going to need a suitcase packed and why did you tell him that? In your mind, why did you tell him those things?
A. Because he’s going to need it.
Q. Why was he going to need it from your standpoint?
A. For his little trip.
Q. What was his little trip going to be?
A. lb hell.
Q. And that’s what you told him, right?
A. Yes, sir.

Lytle, Krall and Geyer all felt that Koepplin’s calls to them were threatening and intimidating and all hung up on Koepplin. Koepplin testified he called the managers because he was concerned about his job and that he was not angry nor did he intend to threaten or intimidate anyone. Koepplin had also acted in a threatening and excitable manner during the meeting the previous day, according to testimony by management employees. The investigation conducted by mine management elicited information from other employees that they, too, were concerned with their safety and the safety of others because of Koepplin’s threats.

Zortman’s personnel policy provided for different ‘levels” of discipline, including termination if warranted by the serious nature of the circumstances involved. Because of Koepplin’s most recent threats to management and his prior behavior as reported by co-employees and as noted in his personnel file, Zortman managers decided to terminate Koepplin’s employment at the prearranged meeting on February 17, 1993.

Sheriff Eugene Peigneux was asked to be present at the meeting in order to keep the peace should Koepplin become violent. Sheriff Peigneux testified that he decided to frisk Koepplin when he arrived for the meeting. He further testified that this was his own independent decision based on his professional training and experience and that Zortman had not requested this be done. Koepplin testified that his feelings were not hurt by this conduct and that after he was frisked, he got a cup of coffee and asked the sheriff and the two deputies if they cared for a cup also. Sheriff Peigneux also decided to have one of his deputies patrol the Zortman area during his regular shift for the next few days in order to keep an eye on Koepplin.

After his termination, Koepplin brought this action for wrongful discharge, invasion of privacy and malice. Further facts are provided throughout this opinion.

Did the District Court err in granting summary judgment in favor of the defendant on Koepplin’s claims for wrongful discharge, invasion of privacy and malice?

Our standard of review for an appeal of a district court’s summary judgment decision is the same as that used by the district court under Rule 56(c), M.R.Civ.P. Morton v. M-W-M, Inc. (1994), 263 Mont. 245, 249, 868 P.2d 576, 578. Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. The party seeking summary judgment bears the burden to show the Court that it has met the standards set forth in Rule 56(c), M.R.Civ.P. Morton, 868 P.2d at 579. If the moving party has met this burden of proof, the nonmoving party has the burden of showing that a genuine issue of material fact exists or that the moving party is not entitled to judgment as amatter of law. Morton, 868 P.2d at 579. When raising the allegations that disputed issues of fact exist, the nonmoving party has an affirmative duty to respond by affidavits or other sworn testimony containing material facts that raise genuine issues; conelusory or speculative statements will not suffice. Morton, 868 P.2d at 579.

WRONGFUL TERMINATION

Under the Wrongful Discharge from Employment Act (the Act), an employee who has completed the employer’s probationary period has a valid ground for maintaining a cause of action against the employer if the employee’s discharge was not for “good cause.” Section 39-2-904(2), MCA. The Act defines “good cause” as “reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer’s operation, or other legitimate business reason.” Section 39-2-903(5), MCA.

The issue in this case is whether Koepplin was properly terminated for disruption of the employer’s operation or other legitimate business reason. A‘legitimate business reason” is defined as “a reason that is neither false, whimsical, arbitrary or capricious, and it must have some logical relationship to the needs of the business.” Kestell v. Heritage Health Care Corp. (1993), 259 Mont. 518, 525, 858 P.2d 3, 7. The District Court emphasized disruption in the work place, noting that Zortman had the right to serve its own business interest as well, stating as follows:

Koepplin’s threat that he was going to send a supervisor on a trip to hell was shocking and outrageous, and no employer under Montana law has to tolerate threats and abuse of that nature. This threat by Koepplin was disruptive to the Zortman work place and gave Defendant good cause to discharge him from employment.
In his Reply Brief, Koepplin’s attorney argues that Koepplin did not intend this statement to be a threat. Koepplin’s attorney cites no Deposition or Affidavit for this assertion. Without any basis in the factual record, the attorney for Koepplin has put his own interpretation on the statement arguing he can tell the jury that it was not a threat. Since Defendant has the right to serve its own legitimate business interest in discharging the Plaintiff, the proper focus of the inquiry should not be on whether Plaintiff’s attorney characterizes this statement as a threat, but whether the statement was heard as a threat by George Lytle. George Lytle specifically testified he found the statement threatening.

Koepplin testified in his deposition that he called the managers because he was concerned about his job. He further stated he was not angry at the time, had consumed beer that evening and denied that his conversation with Lytle constituted a threat. He claims that he was making use of Zortman’s “open door” policy and that his discharge from employment did not comply with the terms of Zortman’s written personnel policy.

The undisputed facts which the District Court relied on center around Koepplin’s telephone calls to Zortman managers on the night of February 15, 1993, particularly the call to Lytle. Both Krall and Geyer hung up on Koepplin and testified they interpreted the calls as threatening. Geyer called the Phillips County Sheriff after he hung up on Koepplin. The third call Koepplin made was to Lytle and the substance of that call is quoted above as testified to by Koepplin in his deposition. Earlier that day, Koepplin was specifically told not to threaten or intimidate any person involved with the investigation of the sexual harassment complaint.

Despite being warned not to threaten anyone involved in the investigation, Koepplin called Krall, Geyer, Lytle and Green after 10:00 p.m. that same evening. These four men were in attendance at the meeting when Koepplin was suspended. Koepplin’s disingenuous contention that he was making use of the Zortman’s “open door” policy is unconvincing. Koepplin knew that management was investigating the incidents. He had been suspended during the investigation and told to come back for another meeting two days later.

If there were matters of importance concerning the investigation, Koepplin would have had an opportunity to respond to them at a later time. Koepplin testified to no such concerns, he did not discuss them at the meeting when he was terminated and he did not raise them after his termination. An employer’s “open door” policy does not exist for the purpose of allowing employees to threaten or otherwise intimidate management; it is used for the purpose of encouraging meaningful communication between employer and employee relating to the employer’s operations.

Koepplin testified that his statements to Lytle — that he had best get his suitcase packed for his “little trip to hell” — were not threats. He did not testify what he intended by them. He merely testified that he was concerned about his job. Lytle testified he felt threatened by the conversation. We agree with the District Court that the proper emphasis here is whether the statements were heard as a threat by Lytle and not whether Koepplin’s attorney characterizes them as a threat.

The District Court termed Koepplin’s threats to Lytle as “shocking and outrageous” and stated that under Montana law, no employer has to tolerate threats and abuse of that nature. Geyer’s call to the sheriff after hanging up on Koepplin and his subsequent request for the sheriff’s presence at Koepplin’s termination reinforce Zortman’s contention that Koepplin’s statements were taken seriously. Zortman’s personnel policy has three “levels” of disciplinary treatment which may apply according to the severity of the particular circumstances. It provides for immediate termination under certain enumerated circumstances depending on the seriousness of the situation. We conclude that, in the overall context of this case, Koepplin’s threat to send Lytle on a “little trip to hell” was at least insubordination which justified immediate termination under Zortman’s personnel policy. We further conclude that the District Court properly characterized this conduct as disruptive to the work place and that Zortman had the right to serve its own legitimate business interest by discharging Koepplin under the circumstances of this case.

Moreover, Krall and Geyer both testified by deposition that Koepplin told them he would have his “mouthpiece” with him at the meeting and that it was the sort you would say “sir” to. Although Koepplin did not admit to these statements, he did admit that both Geyer and Krall hung up on him. It is further undisputed that Geyer called Sheriff Peigneux after hanging up on Koepplin. Koepplin has not presented any evidence that there is an issue of material fact relating to his wrongful discharge claim. This Court has previously held that a party cannot create a disputed issue of material fact by putting his own interpretations and conclusions on an otherwise clear set of facts. See, e.g., Sprunk v. First Bank Sys. (1992), 252 Mont. 463, 466-67, 830 P.2d 103, 105. We conclude Koepplin’s conclusory and interpretive statements of material fact do not rise to the level of genuine issues of material fact required to defeat Zortman’s motion for summary judgment on Koepplin’s claim for wrongful discharge.

INVASION OF PRIVACY

Koepplin contends that Zortman requested the Phillips County Sheriff’s presence at the termination meeting and that the ensuing frisk was a violation of his right of privacy. He maintains that the sheriff’s actions cannot be separated from Zortman’s because Zortman had asked Sheriff Peigneux to be there.

Sheriff Peigneux and two deputies were present and frisked and searched Koepplin upon his arrival. They did not frisk Koepplin’s wife who accompanied him to the meeting. The frisk and search lasted for less than two minutes, according to Koepplin’s testimony. After the termination, one of the deputies was assigned to patrol the Zortman area exclusively for a few days because of the circumstances surrounding Koepplin’s termination. Jim Geyer requested that Sheriff Peigneux be present at Koepplin’s termination “to keep the peace.” Sheriff Peigneux asked that the request and the reasons for asking for assistance be made in writing. Geyer provided a written request, giving details of the call he received as well as the calls received by Krall and Lytle. This was the only request made of the sheriff by any Zortman employee. The decisions to frisk Koepplin and to have a deputy patrol the Zortman area for a few days were made independently by Sheriff Peigneux based on his professional judgment.

The District Court found that the officers’ search was not a substantial invasion of a legally protected interest, that Koepplin had provided no authority to support an invasion of privacy tort theory, and that the search of Koepplin was part of his being fired and could not be separated from the termination.

Koepplin cites Johnson v. Supersave Markets, Inc. (1984), 211 Mont. 465, 686 P.2d 209, for the premise that a person’s right to liberty is legally protected from invasion and his emotional distress proximately caused thereby are recoverable damages for invasion of privacy. He maintains that Johnson held that the invasion of privacy itself could cause substantial emotional distress in and of itself. Koepplin’s argument relates to a constitutional protection found in Article II, § 10 of the Montana Constitution and involves Sheriff Peigneux’s independent decision to frisk and search him. We conclude there is no evidence that Zortman participated in the decision to frisk and search Koepplin nor has any agency relationship been established. Thus, there is no invasion of privacy proximately caused by Zortman’s request for the sheriff “to keep the peace.”

MALICE

As conceded in his brief, Koepplin has no independent claim for malice. Pursuant to our ruling on his claims for wrongful discharge and invasion of privacy, Koepplin has no cause of action for which damages for malice may be awarded.

We hold the District Court properly granted summary judgment in favor of the defendant on Koepplin’s claims for wrongful discharge, invasion of privacy and malice.

Affirmed.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. STEVEN TOWER, Defendant and Appellant.
    No. 93-272.
    Submitted May 24, 1994.
    Decided September 27, 1994.
    51 St.Rep. 946.
    267 Mont. 63.
    881 P.2d 1317.

      For Appellant: Margaret L. Borg (argued), Public Defender’s Office Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Micheál Wellenstein (argued), Assistant Attorney General, Helena; and Robert L. Deschamps, IH, County Attorney, Karen S. Townsend, Deputy County Attorney, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Steven Scott Tower appeals from his conviction, in a jury trial in the Fourth Judicial District Court, Missoula Comity, of criminal sale of dangerous drugs. We affirm.

The issues are:

1. Whether the State was required to set forth a theory of accountability in the information in order to satisfy the legislature’s purpose in enacting criminal statutes.

2. Whether Tower was given sufficient notice of the charged offense to satisfy the requirements of due process.

3. Whether there was sufficient evidence presented at trial to convict Tower of the criminal sale of dangerous drugs.

During the summer of 1992, Steven Tower, Tron Skarland, and Tim Richardson lived together at a house on Mount Street in Missoula, Montana. Tower’s grandparents owned the house.

A confidential informant told local authorities that illegal drug activities were occurring at the house. The local authorities contacted the State of Montana Criminal Investigation Bureau (CIB) for assistance in providing an undercover officer to attempt to purchase illegal drugs from the residence.

CIB agent Mark Long, posing as a citizen of Butte, Montana, became acquainted with the residents of the Mount Street house. He and Skarland met on three occasions in August and September of 1992, and Long made three purchases of marijuana from Skarland at the house.

On September 16, 1992, Long went to the Mount Street house to make another, larger, marijuana purchase. Tower and Richardson invited Long in to wait for Skarland’s return. When Long told Tower and Richardson he wanted to do some business, they said, “Okay, how much?” Agent Long replied that he wanted four times more than what he had purchased before, and Tower nodded his head and said, “Okay, okay.” Agent Long left the house without buying any marijuana that evening.

The next evening, Agent Long, wearing a body wire, again went to the Mount Street house. Once again, Skarland was not home, but Richardson, Tower, and six or seven other people were there. When Skarland did not return after about twenty minutes, Long told Tower that he was going to go to the Town & Country Lounge. He asked Tower to tell Skarland to meet him there, and Tower agreed to do so.

Approximately one hour later, Tower and Skarland approached Long in the parking lot of the Town & Country Lounge. Skarland was driving a pickup truck and Tower was seated in the passenger’s seat. Long testified that he went to the passenger side of the vehicle and said he wanted to buy a quarter-pound of marijuana. Skarland replied that would be no problem, produced a plastic baggie containing about an ounce of marijuana, and said something to the effect of “This is the quality you’ll be getting.” After Long agreed the quality was acceptable, he and Skarland negotiated a price of $700. Long testified that, during the negotiations, Tower passed the sample from Skarland to Long. Long further testified that, while he was counting out the money, Tower explained that they were late because he had forgotten to give Skarland the message that Long was waiting at the Town & Country Lounge. Long gave the money to Tower and told him to count it. When Tower announced it was only $650, Long gave him another $50.

Long testified that Skarland and Tower both said they needed to go somewhere to pick up the marijuana for him. They agreed to meet at Ole’s convenience store a half-hour later for delivery of the marijuana. Long testified that both Skarland and Tower gave him directions to Ole’s. Prior to meeting Long at Ole’s, Skarland and Tower, under surveillance, drove from the Town & Country Lounge to a Toole Avenue house, which they entered briefly. When they exited the house, the person who got into the passenger seat of the truck was observed to be carrying a package.

When Skarland and Tower arrived at Ole’s, minutes later, Tower got out of the passenger seat of the truck and went into the store. Long got into the truck and Skarland gave him a duffel bag. In the duffel bag was a baggie containing four ounces of marijuana. Both Skarland and Tower were subsequently arrested.

At trial, the jury heard an audio tape of the September 17 conversations between Long, Skarland, and Tower. Over Tower’s objection, the court instructed the jury about accountability for a crime under §§ 45-2-301 and -302, MCA. The jury found Tower guilty of criminal sale of dangerous drugs.

Issue 1

Was the State required to set forth a theory of accountability in the information in order to satisfy the legislature’s purpose in enacting criminal statutes?

One purpose of the Montana legislature in enacting criminal statutes is “to give fair warning of the nature of the conduct declared to constitute an offense.” Section 45-l-102(c), MCA. This statement of purpose was adopted from an Illinois statute, as part of the 1973 general revision of criminal law in Montana. Tower contends that to fulfill this purpose, when the State’s case against a criminal defendant is based upon the accountability statutes, the State must give the defendant notice of that fact in the information filed against the defendant.

Montana’s accountability statutes are also patterned after Illinois law. Section 45-2-301, MCA, provides:

Accountability for conduct of another. Aperson is responsible for conduct which is an element of an offense if the conduct is either that of the person himself or that of another and he is legally accountable for such conduct as provided in 45-2-302, or both.

Section 45-2-302, MCA, defines the circumstances under which such accountability may exist. It provides in part that a person is legally accountable for the conduct of another when:

(3) either before or during the commission of an offense with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense.

When Montana’s legislature adopts a statute from a sister state, Montana courts follow the general rule of also adopting the construction which has been placed upon that statute by the highest court of the sister state. Dew v. Dower (1993), 258 Mont. 114, 125-26, 852 P.2d 549, 556; State v. Murphy (1977), 174 Mont. 307, 311, 570 P.2d 1103, 1105. In State v. Oppelt (1978), 176 Mont. 499, 580 P.2d 110, and in Murphy, 570 P.2d at 1105, this Court noted that the accountability statutes borrowed from Illinois had not been interpreted to require the theory of accountability to be included in the charging document.

This rule is consistent with the previous law of accountability in Montana. State v. Zadick (1966), 148 Mont. 296, 300, 419 P.2d 749, 751. “[N]o other facts need be alleged in any indictment or information against ... an accessory, than are required in an indictment or information against his principal.” Section 94-6423, RCM (1947). The Criminal Law Commission comments to § 45-2-302, MCA, state that the statute “accepts the approach of the existing law and endeavors to develop it in full and systematic fashion.”

We hold that the State was not required, under the purpose stated at § 45-l-102(c), MCA, to set forth a theory of accountability in the information.

Issue 2

Was Tower given sufficient notice of the charged offense to satisfy the requirements of due process?

Tower cites the general rule that due process requires that a person charged with an offense must be duly advised of the nature and cause of the accusation against him. See Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. He asserts that due process requires that the information against him should have included language from the accountability statutes.

Under the Model Penal Code and subsequent recodifications of criminal law in a majority of states, a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime; distinctions between what used to be referred to as the “principal” and “accessory before the fact” have largely been abandoned. See 2 W. LaFave and A. Scott, Jr., Substantive Criminal Law § 6.6 (1986). Criminal accountability is not considered a substantive separate offense, but merely a conduit by which to find a person criminally liable for the acts of another. Matter of B.D.C. (1984), 211 Mont. 216, 220-21, 687 P.2d 655, 657.

A charging document must give a

plain, concise, and definite statement of the offense charged, including the name of the offense, whether the offense is a misdemeanor or felony, the name of the person charged, and the time and place of the offense as definitely as can be determined. The charge must state for each count the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.

Section 46-11-401(1), MCA. In this case, the information alleged that Tower “purposefully or knowingly sold a dangerous drug as defined in Section 50-32-101, MCA, marijuana, to Mark Long.”

Additionally, Tower’s claim that he was surprised by the accountability instruction is simply not persuasive. Prior to trial, Tower and his counsel were provided with the audio tape, access to the materials in the State’s case file, and the opportunity to interview the State’s witnesses. The opening statement of the State at trial clearly outlined the evidence which the State intended to present. In light of the defense’s knowledge of the State’s case, and the consistent history of the law of accountability in Montana, there was every reason to anticipate an accountability instruction.

We conclude that Tower was given fair warning of the nature and cause of the accusation against him, and of the conduct declared to constitute an offense. Because accountability is not a separate offense, we hold that due process did not require that the State set forth a theory of accountability in the information.

Issue 3

Was sufficient evidence presented at trial to convict Tower of the criminal sale of dangerous drugs?

Skarland testified in Tower’s behalf at trial. His testimony minimized Tower’s involvement in the sale of the marijuana. Tower claims he had no active role in the marijuana sale and that he was simply in the wrong place at the wrong time.

In reviewing the sufficiency of the evidence to support a jury verdict of conviction in a criminal case, our standard of review 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. State v. McLain (1991), 249 Mont. 242, 246, 815 P.2d 147, 150. Viewing the evidence in this case in the light most favorable to the prosecution, it showed that Tower gave Skarland the message to meet Agent Long, and that he clearly understood the purpose of their meeting to be a sale of marijuana. Tower then accompanied Skarland to the meeting, passed the marijuana sample from Skarland to Long, and counted the money Long paid for the marijuana. He gave Long directions to the meeting place for the delivery of the marijuana. He went with Skarland to pick up the marijuana and carried the package apparently containing the marijuana from the house to the truck. He then accompanied Skarland to deliver the marijuana. We conclude that a rational trier of fact could have found Tower guilty, beyond a reasonable doubt, of the criminal sale of dangerous drugs.

We therefore affirm the decision of the jury and of the District Court.

JUSTICES HARRISON and WEBER concur.

JUSTICE NELSON

specially concurs.

While I concur in the Court’s opinion and with the reasoning set forth, I would also clarify our decisions in State v. Murphy (1977), 174 Mont. 307, 570 P.2d 1103, and State v. Oppelt (1978), 176 Mont. 499, 580 P.2d 110.

As stated, in Murphy, we initially point out that in adopting Montana’s accountability statute from Illinois, we follow the rule of statutory construction of “adopt[ing] the construction placed upon [the statute] by the highest court of the state from which it is adopted.” Murphy, 570 P.2d at 1105. Having said that, we then go on to discuss and reject defendant’s claim of surprise that the state interjected the accountability theory in the trial and placed it before the jury. Citing the language of the statute, we then, however, observe:

While the record is clear that no surprise existed, this Court does not condone the method used by the state in charging the defendant. If the state planned to charge the defendant with aiding and abetting, in proper practice it should have done so from the onset. [Emphasis added.]

Murphy, 570 P.2d at 1105.

Moreover, we never reached defendant’s claim that the accountability instructions were improperly given because defense counsel’s failure to lodge proper objections at the time of settlement of instructions precluded the defendant from assigning error to the instructions on appeal. Murphy, 570 P.2d at 1105.

We next addressed this issue in State v. Oppelt (1978), 176 Mont. 499, 580 P.2d 110. In that case the state raised the issue of legal accountability at trial and the court so instructed, although the theory of legal accountability was not set forth in the information. Oppelt, 580 P.2d at 112. Nearly the entirety of our opinion in Oppelt discussed the issue of admissibility of the out-of-court identification from a photographic lineup. In the final paragraph of the opinion, with no analysis whatsoever, we nevertheless, concluded:

Nor did the court err in allowing the state to introduce the theory of legal accountability at trial when that theory was not listed in the Information. This Court recently held that Montana follows the Illinois rule that “* * * an indictment need not distinguish an act performed by the accused himself and the act of another for which he is legally accountable.”

Oppelt, 580 P.2d at 114 (citing Murphy, 570 P.2d at 1105).

We did not so hold in Murphy. In that case, as pointed out above, we, in fact, criticized the state for not providing notice of the accountability theory in the charging document, and, instead, grounded our decision to affirm the conviction on the rationale that “no surprise existed” and on the failure of defense counsel to lodge proper objections to the jury instructions on accountability. Murphy, 570 P.2d at 1105.

Finally, in both Murphy and in Oppelt, we also imply or state outright that accountability is a separate offense. In Oppelt we refer to the ‘legal accountability offense,” and to legal accountability as “that crime.” Oppelt, 580 P.2d at 112. In Murphy, we refer throughout the opinion to “charg[ing]” the defendant with aiding and abetting or with accountability. Murphy, 570 P.2d at 1105. As we point out in our discussion of Issue 2 in the instant case, criminal accountability is not a separate substantive offense, but is merely a conduit or theory by which to find one person criminally liable for the acts of another. In re B.D.C. (1984), 211 Mont. 216, 220-21, 687 P.2d 655, 657. Accordingly, our statements in Murphy and in Oppelt to the effect that accountability is a separate offense are in error.

Both Murphy and Oppelt contain dicta and misstatements that are at odds with our decision in the instant case. Accordingly, those cases should be clarified.

For those reasons I specially concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority’s conclusion that neither constitutional nor statutory notice requirements are violated when a defendant is convicted based solely on his accountability for the acts of another without first being notified that his accountability is the basis for the charges against him.

I agree with Justice Nelson’s concurring opinion that neither State v. Murphy (1977), 174 Mont. 307, 570 P.2d 1103, nor State v. Oppelt (1978), 176 Mont. 499, 580 P.2d 110, support the majority’s decision. This Court’s conclusion in Murphy was just the opposite of the majority’s conclusion in this case, and Murphy was erroneously relied on in Oppelt for a rule of law that Murphy did not establish.

However, unlike the author of the concurring opinion, I do not agree that the majority’s conclusion can logically be arrived at on other grounds.

Both the Sixth Amendment to the United States Constitution, and Article II, Section 24, of the Montana Constitution, guarantee people who are accused of crimes the right to be informed of both the nature and cause of the accusation against them. Furthermore, those rights guaranteed in the Sixth Amendment are part of the “due process of law” that is guaranteed by the Fourteenth Amendment to the United States Constitution. As stated by the United States Supreme Court in Faretta v. California (1975), 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562:

The Sixth Amendment includes a compact statement of the rights necessary to a full defense:
“In all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”
Because these rights are basic to our adversary system of criminal justice, they are part of the “due process of law” that is guaranteed by the Fourteenth Amendment to defendants in the criminal courts of the States. The rights to notice, confrontation, and compulsory process, when taken together, guarantee that a criminal charge may be answered in a manner now considered fundamental to the fair administration of American justice — through the calling and interrogation of favorable witnesses, the cross-examination of adverse witnesses, and the orderly introduction of evidence. In short, the Amendment constitutionalizes the right in an adversary criminal trial to make a defense as we know it. See California v. Green, 399 U.S. 149, 176 [90 S.Ct. 1930, 1944, 26 L.Ed.2d 489 (1970)] (Harlan, J., concurring).

Faretta, 422 U.S. at 818 95 S.Ct at 2532-33, (emphasis added) (footnote omitted).

The Supreme Court has elaborated on the extent of information which must be included in an indictment to satisfy the Constitution’s notice requirements in Hamling v. United States (1974), 418 U.S. 87, 94 S. Ct. 2887, 41 L. Ed. 2d 590. There, the Court stated:

Our prior cases indicate that an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861 (1932); United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953). It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as “those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.” United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882). “Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.”

Hamling, 418 U.S. at 117, 94 S.Ct. at 2907, 41 L. Ed. 2d at 620-21 (citation omitted).

The majority and concurring opinions conclude that the defendant in this case was adequately notified of the “nature and cause” of the accusation against him by engaging in the legal fiction that being accountable for someone else’s sale of dangerous drugs is the same as if defendant had sold dangerous drugs himself. This conclusion is based on a semantic construct which has little to do with reality and ignores the purpose for which we have a notice requirement.

The purpose of a notice requirement is to inform someone accused of a crime of the nature of his or her conduct which forms the basis of the State’s accusation. The nature of conduct which must necessarily be proven to convict a person of the sale of dangerous drugs is significantly different than that conduct which is sufficient to show that a defendant assisted someone else with the sale of dangerous drugs. In this case, Count II of the State’s information pursuant to which defendant was convicted merely alleged that “[o]n or about September 17,1992, the above-named defendant purposely or knowingly sold a dangerous drug as defined in § 50-32-101, MCA, marijuana, to Mark Long.”

How did that accusation adequately inform defendant that the nature of his conduct for which he was actually being charged was helping someone else sell dangerous drugs to Mark Long? How did that mere allegation satisfy the requirement in Hamling that when the language of a statute is used, it must be accompanied by such a statement of the facts and circumstances as will inform the accused of the “specific” nature of his offense?

Selling drugs and helping another sell drugs are two separate and distinct activities. Those activities are made unlawful by two separate and distinct statutes. No matter how many times this Court says that guilt by accountability is not a separate offense, common sense requires the conclusion that it is a separate offense. If notice that the defendant is accused of selling dangerous drugs is sufficient to inform the accused that he is really charged with helping someone else sell dangerous drugs, then why is it even necessary to have a separate statute making aiding and abetting the commission of a crime, a crime in and of itself?

Even Montana statutory law requires more specific notice to defendant than was provided in this case. Section 46-11-401, MCA, provides in relevant part that “[t]he charge must state for each count the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.”

The majority concludes that that requirement was satisfied by notifying defendant that he was accused of violating § 45-9-101, MCA, which prohibits the sale of dangerous drugs. However, based on the proof presented in this case, the State could not have convicted defendant of violating that statute alone. Defendant’s conviction can only be sustained by reading that statute in combination with Montana’s accountability statutes found at § 45-2-301 and -302, MCA. Therefore, by the plain language of § 46-11-401, MCA, the defendant in this case was entitled to notice of the combination of statutes which form the basis of the State’s accusations against him.

Based on the facts in this case, as indicated by the State’s evidence, defendant had every right to prepare his defense based on the presumption that the State could not prove that he committed the act with which he was accused in Count II of the State’s information. There was absolutely no evidence that defendant “sold, bartered, exchanged, or gave away” any dangerous drug as defined in § 50-32-101, MCA. It was not until after the conclusion of all the evidence and defendant had proceeded under that assumption that he was first notified in the form of jury instructions offered by the State that it intended to convict him based on facts and a statute which were never alleged in the information. This is exactly what is prohibited by the Ünited States Constitution, our State Constitution, and Montana’s statutory notice requirement. To hold otherwise by engaging in the fiction that selling dangerous drugs is the same thing as being accountable for someone else’s sale of dangerous drugs makes a mockery of those notice requirements.

The constitutional notice requirement of the Sixth Amendment is very plain and the majority opinion simply engages in semantics to circumvent that requirement. While that may accomplish the desired social objective in this case, it does not satisfy this Court’s primary responsibility which is to enforce the plain language of the Constitution.

For these reasons I dissent from the majority opinion.

JUSTICE GRAY and JUSTICE HUNT, join in the foregoing dissenting opinion.


author: JUSTICE HUNT,

text:
    IN RE THE CUSTODY OF T.M., A Youth in Need of Care.
    No. 93-622.
    Submitted on Briefs June 2, 1994.
    Decided October 4, 1994.
    51 St.Rep. 952.
    267 Mont. 75.
    881 P.2d 1333.
    For Appellant: J. Mayo Ashley, Attorney at Law, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Assistant Attorney General, Helena; and Mike McGrath, Lewis and Clark County Attorney, Carolyn Clemens, Deputy County Attorney, Helena.
   JUSTICE HUNT,

delivered the Opinion of the Court.

Appellant Robert Darell Martz appeals from an order of the First Judicial District Court, Lewis and Clark County, terminating appellant’s parental rights over T.M.

Affirmed.

The sole issue on appeal is whether the District Court abused its discretion in terminating the parental rights of appellant.

T.M. was bom May 5, 1989. Appellant is T.M.’s natural father. T.M.’s mother, Cindy Bruno Martz, died in an automobile accident when T.M. was 14 months old.

T.M. has been diagnosed as having fetal alcohol syndrome. As a result, he requires a structured environment and constant parental supervision.

Appellant was incarcerated in Washington State when T.M. was bom, and from October 1991 through November 1992, as well as on several other occasions while T.M. was in his care.

In February 1993, appellant was convicted of driving under the influence and served five days in jail. In April 1993, he was convicted of domestic abuse and served three days in jail. Appellant was convicted of driving under the influence for the third time in April 1993. He was sentenced to one year in the county jail, with all but 30 days suspended, on the condition that he receive treatment at Galen State Hospital. Appellant attended the program but did not graduate because of rule infractions.

On or about April 7, 1993, appellant was arrested for abusing his live-in girlfriend. The Department of Family Services (DFS) was informed that appellant had been driving intoxicated with T.M. in the car. Thereafter, the DFS removed T.M. from appellant and placed him in foster care.

The DFS requested family-based services to assist appellant. Appellant was assessed as needing chemical dependency treatment, parenting assistance, and family therapy.

On April 16, 1993, the DFS filed a petition for temporary investigative authority, protective services, temporary custody, and for adjudication ofT.M. as a youth inneed of care. At the time the petition was filed, T.M. was in foster care because appellant was incarcerated for domestic abuse.

By stipulation dated May 6,1993, appellant agreed that T.M. was a youth in need of care and that the DFS would have temporary investigatory authority, protective services, and temporary custody ofT.M. for six months. The stipulation was entered as an order of the court on May 14, 1993, and it authorized the DFS to develop a treatment plan. The plan required appellant to obtain treatment for his chemical dependency; to complete an anger management or domestic abuse program; to successfully complete a parenting class; to attain and maintain safe housing; and to remain a law abiding citizen.

On June 13, 1993, appellant was arrested for obstructing a police officer. Appellant was intoxicated at the time. He was referred to the Boyd Andrew Chemical Dependency Care Center which placed him in its intensive outpatient program. Appellant was discharged from the program for failing to complete an assignment and for failing to keep an appointment with his counselor.

The DFS agreed to pay the costs for appellant’s July 1993 alcohol treatment, parenting classes, and anger management classes. Appellant was dropped from each of these programs because he was arrested three times in July 1993 for alcohol related incidents.

As a result of the above facts, the State filed a petition to terminate parental rights on August 25,1993. Ahearing was held on September 23 and 27, 1993. On October 25, 1993, the District Court entered its order which provides:

1. [T.M.] is a youth in need of care. All parental rights of Robert
Martz, the father of the youth, are hereby terminated and he shall
have no further legal claims to [T.M.] or to his property.
2. [T.M.] is hereby placed in the permanent legal custody of the Montana Department of Family Services.
3. The Montana Department of Family Services is authorized to place the youth for adoption and to consent to his adoption.

The court concluded that appellant failed to comply with his treatment plan, and that the conditions that made appellant unfit as a parent were not likely to change with the passage of time.

Did the District Court abuse its discretion in terminating the parental rights of appellant?

Appellant argues that the court failed to consider all of the available information regarding appellant’s efforts to become a good parent, and abused its discretion by terminating his parental rights pursuant to § 41-3-609, MCA.

The appropriate standard of review to be applied to purely factual findings in a proceeding to terminate parental rights is whether the findings are clearly erroneous. Matter of J.J.G. (1994), [266 Mont. 274], 880 P.2d 808, 812; Matter of D.H. and F.H. (1994), 264 Mont. 521, 872 P.2d 803; Interstate Production Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 820 P.2d 1285. We review conclusions of law in a termination proceeding to determine whether they are correct. Matter of J.J.G. [266 Mont. 274], 880 P.2d at 812; Matter of D.H. and F.H., [264 Mont. 521], 872 P.2d at 805; In re Marriage of Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 619.

The criteria for termination of parental rights are set forth in § 41-3-609, MCA, which provides in part:

(1) The court may order a termination of the parent-child legal relationship upon a finding that any of the following circumstances exist:
(c) the child is an adjudicated youth in need of care and both of the following exist:
(1) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time; or
(d) the parent has failed to successfully complete a treatment plan approved by the court within the time periods allowed for the child to be in foster care under 41-3-410 unless it orders other permanent legal custody under 41-3-410.

T.M. was adjudicated a youth in need of care on May 6, 1993. On May 10, 1993, appellant signed his court approved treatment plan. However, appellant did not complete his chemical dependency programs at either Galen State Hospital or Boyd Andrew Chemical Dependency Care Center. Appellant did not complete his parenting and anger management classes after being arrested on three separate alcohol related incidents. At the time of the District Court hearing, appellant did not have a stable home. Appellant did not remain law-abiding. He was arrested and incarcerated five times in June and July, 1993. The record clearly demonstrates that appellant did not comply with or succeed at his treatment plan.

The District Court concluded that the conduct or conditions that rendered appellant unfit as a parent were unlikely to change within a reasonable time pursuant to § 41-3-609(2) and (3), MCA, which provides in part:

(2) In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court must enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care. In making such determinations, the court shall consider but is not limited to the following:
(g) any reasonable efforts by protective service agencies that have been unable to rehabilitate the parent.
(3) In considering any of the factors in subsection (2) in terminating the parent-child relationship, the court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child.

The record supports the District Court’s conclusion. In an effort to rehabilitate appellant, the DFS agreed to pay the cost of appellant’s July 1993 treatment programs. Appellant did not complete these programs, due to his incarcerations. Pam Ponick, a licensed family services counselor, worked closely with appellant. She expressed serious concerns about appellant’s ability to parent and his refusal to address his chemical dependency. She determined that before he could parent T.M., appellant would need at least one year of sobriety, parent training, and therapy.

Dr. Susan Lewin, a geneticist at Shodair Hospital, diagnosed T.M. as having suffered a prenatal event that was probably fetal alcohol effect. She found that T.M. needed a stable, highly structured environment with a consistent, full-time parent. Having a parent drop out of his life for periods of time would be very damaging to T.M. Prior to being placed in foster care, T.M. had seven care takers, appellant not included. T.M. was enrolled in a preschool program for children with disabilities. His teacher, Peggy Hollow-Phelps, testified that when T.M. first arrived he had difficulties with fine motor coordination, communication, problem solving, and social interaction. By contrast, Ms. Hollow-Phelps found that T.M. made a 21-month gain in development after being placed in foster care.

Finally, the District Court was bound to give primary consideration to the physical, mental, and emotional conditions and needs of the child. Section 41-3-609(3), MCA. The best interest of the child is paramount and takes precedence over parental rights. Matter of J.J.C.H. (1992), 252 Mont. 158, 165, 827 P.2d 812, 816; In re J.W. (1988), 232 Mont. 46, 50, 757 P.2d 769, 771. It is clear from the record that T.M.’s best interest was served by terminating appellant’s parental rights.

We conclude the District Court’s findings are not clearly erroneous. The District Court properly applied the criteria set forth in § 41-3-609, MCA, to the facts in the present case. The court concluded, and we agree, that T.M. was a youth in need of care; that appellant failed to comply with his treatment plan; and that the conditions that made appellant unfit as a parent were unlikely to change within a reasonable time.

We hold that the District Court did not abuse its discretion in terminating appellant’s parental rights.

We affirm.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, NELSON and GRAY concur.


text:
    IN THE MATTER OF T. N., A Youth.
    No. 94-122.
    Submitted on Briefs July 6, 1994.
    Decided October 4, 1994.
    51 St.Rep. 955.
    267 Mont. 81.
    881 P.2d 1329.
    For Appellant: Jon A. Oldenburg, Lewistown.

      For Respondent: Hon. Joseph P. Mazurek, Attorney General, Cregg Coughlin, Assistant Attorney General, Helena; and Thomas P. Meissner, Fergus County Attorney, Lewistown.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a decision of the Tenth Judicial District Court, Fergus Comity, transferring the case of T.N. to Adult Criminal Court to be tried for the offense of Deliberate Homicide. We affirm.

We consider the following issue on appeal:

Did the District Court abuse its discretion in transferring T.N. from Youth Court to the Adult Court of the Tenth Judicial District?

T.N. is fifteen years old. His parents are divorced; his mother lives in Billings, Montana, and his deceased father lived in Roy, Montana. T.N. stated that he loved his mother, but he hated Billings, and he hated his father, but he loved Roy, Montana. T.N. was living with his father at the time of his father’s death. Evidence exists that T.N.’s father engaged in both physical and emotional abuse of T.N.

On September 30,1993, the Fergus County Sheriff’s office received a report from an individual in Roy, who complained that a foul smell was emanating from a neighborhood residence. At 11:30 a.m. on that day, a deputy responded to this complaint. Upon reaching the residence, the deputy did not find anyone about and called the Under-sheriff for advice on how to proceed.

The deputy recruited Gary Smith, a business person and an E.M.T.(Emergency Medical Technician), to come to the residence. The two men forced their way into the house where they discovered the body of Michael Nelson, T.N.’s father, laying on the living room couch with blankets and clothes piled on top of him. A gunshot wound to the head was obvious. The coroner and further assistance from the Sheriff’s office were requested.

While the officers were investigating, several high school students gathered outside the residence. Because of talks with these students, officers learned that T.N. might have information about the death of his father.

One of the officers went with the students to the Roy School building to have the students write out statements. During this process, another student approached the deputy and stated that he had T.N. on the telephone from Billings and that T.N. was admitting that he had killed his father.

The deputy got on the phone and taped the conversation with T.N. T.N. told the deputy that he had shot his father in the back of the head with a 30-30 rifle early in the morning before school started.

T.N. was charged in Youth Court of the Tenth Judicial District, Fergus County, as a delinquent youth or a youth in need of supervision and was accused of committing the offense of Deliberate Homicide. The Fergus County Attorney moved to transfer the case to Adult Criminal Court. A hearing was held on this motion and on February 11, 1994, the court entered its Findings of Fact and Conclusions of Law and Order which transferred this case to Adult Criminal Court. T.N. appeals this order.

Did the District Court abuse its discretion in transferring T.N. from Youth Court to the Adult Court of the Tenth Judicial District?

The court noted that one psychologist and one psychiatrist had testified to the mental condition of T.N. and that although they disagreed on certain aspects of T.N.’s rehabilitation, both doctors agreed that T.N. needed a structured residential setting in order for rehabilitation to occur. Both doctors agreed that Yellowstone Treatment Center in Billings would be adequate and Pine Hills School for Boys would not.

Also in its findings, the court noted that Dr. Rich, a psychiatrist and the director of the Deaconess Psychiatric Center in Billings, believed that it would take T.N. a one year period to be rehabilitated at Yellowstone Treatment Center (Yellowstone). The court did not find this testimony to be as credible as that of Dr. Gumper, a clinical psychologist at Deaconess Medical Center in Billings. The court found that it was more credible, according to Dr. Gumper, that T.N. would need several years of treatment in a structured residential setting, although there is no way to tell exactly how much treatment T.N. would need. The court agreed in its findings with Dr. Gumper’s assessment that it would be advisable to be able to require residential treatment of the youth beyond the time period that would be available through the youth facilities, but the youth court’s jurisdiction is limited. Because of the limitations placed upon the youth court for youth past the age of 19, Dr. Gumper, and the court, had serious reservations that the youth system would be able to require residential treatment beyond the age of 19 if needed.

Further, the court found that both doctors agreed that T.N. would be resistant to treatment, possibly lengthening the time that he would be required to be in treatment. The court also noted that Dr. Gumper stated that the ability to secure T.N. in a locked environment would be advisable. The court further found that Yellowstone does not have the security necessary and Pine Hills has no facilities for T.N.’s rehabilitation.

The court, therefore, found that substantial evidence existed to show that T.N. killed his father in an aggressive, violent, or premeditated manner and that the seriousness of the offense and the protection of the community require treatment of the youth beyond that afforded by the juvenile facilities. The court further explained that the youth system is seriously limited in the time that it could provide for T.N.’s treatment.

Appellant argues that the ruling law on transfer of juveniles to adult court is § 41-5-206, MCA:

Transfer to criminal court. (1) After a petition has been filed alleging delinquency, the court may, upon motion of the county attorney, before hearing the petition on its merits, transfer the matter of the prosecution to the district court if:
(i) the youth committed the delinquency act alleged;
(ii) the seriousness of the offense and the protection of the community require treatment of the youth beyond that afforded by juvenile facilities; and
(iii) the alleged offense was committed in an aggressive, violent, or premeditated manner.

T.N. concedes that the only part of this statute that is in dispute is subsection (d)(ii) — the seriousness of the offense and the protection of the community require treatment of the youth beyond that afforded by juvenile facilities. T.N. argues that there was no evidence to support the court’s determination that T.N. was a serious threat to the community or that T.N. required treatment beyond that of the youth facilities. TN.’s argument here is that he cannot be transferred to adult court simply because the crime he committed was a serious one.

The state argues that sufficient evidence exists to support the court’s findings.

The standard of review on appeal of a youth court order transferring a matter to district court is whether the youth comb abused its discretion. In re J.A. (1992), 255 Mont. 214, 841 P.2d 1130. This court will not find abuse of discretion where there is substantial evidence to support the findings of the youth court. J.A., 255 Mont. at 216, 841 P.2d 1130. Nor will this Court resolve conflicts in evidence for it is the trial court’s domain to assess the demeanor and credibility of witnesses. J.A., 255 Mont. at 216, 841 P.2d 1130. When considering the individual findings of that court we review the findings to see if they are clearly erroneous according to the three-prong test we set out in Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 820 P.2d 1285. While we have clarified that we will utilize a clearly erroneous standard in reviewing court findings of fact, the first prong of the clearly erroneous test remains whether substantial evidence supports the court’s findings. J.A., 255 Mont. at 216, 841 P.2d 1130.

An extensive review of the record indicates that two expert witnesses testified concerning the mental state of T.N. and his ability to be rehabilitated within the youth system. Also testifying was Sheila Rebich (Rebich), a clinical social worker for Pine Hills School for Boys and Michael Otto (Otto), the chief juvenile probation officer for the Tenth Judicial District of the State of Montana.

Both Dr. Gumper and Dr. Rich agreed that Pine Hills School was not a proper placement for T.N. because the school did not provide the rehabilitation that T.N. requires. This was further borne out by the testimony of Ms. Rebich who also stated thatthe school would not be able to provide serious rehabilitation.

Both Dr. Gumper and Dr. Rich agreed that Yellowstone Treatment Center in Billings would be an adequate placement. However, Dr. Gumper testified the youth system could only provide residential arrangements for T.N. up to the age of 19. Further, Yellowstone placements usually last from 10 to 14 months. If T.N. were to be sent there, Yellowstone would have to make special arrangements for T.N. Otto testified that officials of the school had already been contacted about placement of T.N. and had stated that Yellowstone would probably not accept T.N. If Yellowstone does not accept T.N. the only other placement would be Pine Hills, an unsuitable placement according to everyone who testified.

Of particular significance is the length of time that T.N. may require treatment. Dr. Gumper was very specific in stating that it would be preferable to have the option of providing residential treatment for T.N. past the age of 19. However, such an arrangement is impossible under the system in Montana. Otto testified that the court would lose jurisdiction of T.N. once it placed him in a facility. The Department of Family Services would assume jurisdiction of T.N. after the court’s initial placement. Technically, the Department would have control of T.N. until age 21; however, there could be no residential placement anywhere beyond age 19.

The court made a point throughout the hearing to ask questions on its own. It questioned Dr. Gumper at one point as to whether the youth system would provide the extended treatment that Dr. Gumper stated that T.N. needed. Dr. Gumper answered that the only way the youth system could adequately rehabilitate T.N. would be if supplemental funding were to be provided to the institution in which T.N. was finally placed. There was no evidence presented at the hearing that additional funding could or would be provided either to Pine Hills or Yellowstone.

We conclude that there was substantial evidence from which the court could have determined that the youth system was inadequate to handle T.N.’s needs.

On the issue of whether T.N. posed a threat to the community, Dr. Gumper spoke to this at some length stating that a possibility existed that once T.N. became attached to someone in a close relationship, he may feel pressured into the same kind of violent behavior. Both doctors testified that T.N. had not shown remorse about the killing and had not shown any signs of coming to terms with the seriousness of what had happened. While both Dr. Gumper and Dr. Rich felt it unlikely that there would be another violent occurrence, neither of them ruled it out.

T.N argues that what he needs is rehabilitation and not incarceration. The fact that this action is being sent to the criminal justice system does not preclude rehabilitation and mandate incarceration. The court has other options available to it should T.N. be found guilty of this crime.

We conclude that the record establishes that the court had substantial evidence before it that T.N. could pose a threat to the community if not removed from society at least for the period of time needed for rehabilitation.

We hold that the District Court did not abuse its discretion in transferring T.N. from Youth Court to the Adult Court of the Tenth Judicial District.

Affirmed.

JUSTICES HARRISON, HUNT, TRIEWEILER and GRAY concur.


text:
    IN THE MATTER OF J.D.W., A Youth Under the Age of Eighteen, Defendant and Appellant.
    No. 94-140.
    Submitted on Briefs July 6, 1994.
    Decided October 4, 1994.
    51 St.Rep. 958.
    267 Mont. 87.
    881 P.2d 1324.

      For Appellant: Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Barbara C. Harris, Assistant Attorney General, Helena; and George H. Com, Ravalli County Attorney, Hamilton.
   JUSTICE WEBER

delivered the Opinion of the Court.

J.D.W. appeals the order of the Youth Court of the Twenty-First Judicial District, Ravalli County, transferring this proceeding concerning criminal conduct to district court for treatment of the youth as an adult. We vacate the Order of the Youth Court dated February 9, 1994, and remand to the Youth Court for a hearing on the matter.

The sole issue on appeal is whether the Youth Court abused its discretion by ordering the proceeding transferred to District Court.

On January 6, 1994, the Ravalli County Attorney filed a petition alleging J.D.W. to be a delinquent youth based on his alleged participation in criminal activity that took place in November and December of 1993. J.D.W. was sixteen years old on October 24, 1993. The State alleged that J.D.W. had committed criminal offenses including accountability for criminal mischief (common scheme), two counts of burglary, accountability for another burglary, conspiracy to commit arson, possession of explosives and three counts of obscuring the identity of a machine.

J.D.W. admitted in an interview which took place on December 28, 1993, that he was involved in or participated in each of three separate burglaries of the Porter, Eden and Starr residences, which took place on November 12, November 26 and December 27, 1993, respectively. Also in that interview, J.D.W. told law enforcement authorities about an explosive device that had been constructed at another youth’s home. This device was highly explosive and was subsequently dismantled by law enforcement. Testimony at the hearing indicated that the bomb may have been built to blow up one of the three homes burglarized by the youths.

Numerous firearms were stolen in each of the three burglaries. In one of the homes, the guns were taken from a safe which was accessed with the aid of power tools. The “machines” involved in the charges of altering machines included a .357 Coonan automatic handgun, a Smith & Wesson Model 422 automatic, and a Colt MK - IV automatic. These were not the only firearms stolen in the burglaries.

The Youth Court determined that the residential burglaries committed by J.D.W. and two other youths were premeditated. One of the homes was ransacked during the burglary and had extensive damage done to it during the course of the burglary. In addition, there was testimony at the hearing on this matter that the youths may have intended to sell the guns, after altering the serial numbers, to students at Corvallis School. The firearms were not loaded when stolen, but were loaded at the time of confiscation.

Concurrently with the petition alleging delinquency, the State moved the Youth Court to transfer the matter for prosecution in District Court rather than Youth Court, alleging that the offenses committed by J.D.W. were premeditated and of such seriousness and magnitude that the protection of the community needed to be insured for a longer time beyond that which could be afforded under the Youth Court Act.

When charged with the above offenses, J.D.W. was on Youth Court probation for a 1992 shooting of another youth with an air rifle, which resulted in the blinding of an eye. The pertinent terms of probation for the 1992 offense were that J.D.W. was not to be in possession of or to use a firearm, except when hunting with his father, and that he obey all laws. J.D.W.’s probation has been revoked in connection with this proceeding and he is currently incarcerated in the Kalispell Juvenile Detention Center pending its outcome.

Did the Youth Court abuse its discretion by ordering the proceedings in this matter transferred to District Court?

The Montana Youth Court Act authorizes transfer of cases from youth court to district court for treatment as an adult under certain circumstances set forth in § 41-5-206, MCA, as follows:

41-5-206. Transfer to criminal court. (1) After a petition has been filed alleging delinquency, the court may, upon motion of the county attorney, before hearing the petition on its merits, transfer the matter of prosecution to the district court if:
(a)...
(ii) the youth charged was 16 years of age or more at the time of the conduct alleged to be unlawful and the unlawful act is one or more of the following:
(E) burglary or aggravated burglary as defined in 45-6-204;
(G) possession of explosives as defined in 45-8-335;
(J) attempt, as defined in 45-4-103, of any of the acts enumerated in subsections (l)(a)(ii)(A) through (l)(a)(ii)(I);
(d) the court finds upon the hearing of all relevant evidence that there is probable cause to believe that:
(1) the youth committed the delinquent act alleged;
(ii) the seriousness of the offense and the protection of the community require treatment of the youth beyond that afforded by juvenile facilities; and
(iii) the alleged offense was committed in an aggressive, violent, or premeditated manner.
(2) In transferring the matter of prosecution to the district court, the court may also consider the following factors:
(a) the sophistication and maturity of the youth, determined by consideration of the youth’s home, environmental situation, and emotional attitude and pattern of living;
(b) the record and previous history of the youth, including previous contacts with the youth court, law enforcement agencies, youth courts in other jurisdictions, prior periods of probation, and prior commitments to juvenile institutions. However, lack of a prior juvenile history with youth courts will not of itself be grounds for denying the transfer.
(4) Upon transfer to district court, the judge shall make written findings of the reasons why the jurisdiction of the youth court was waived and the case transferred to district court.

J.D.W. contends that the Youth Court incorrectly drew inferences from the evidence presented through the testimony of Deputy Bruce Hennell, who essentially opined that the burglaries, possession of explosives and conspiracy to commit arson were serious offenses involving loaded firearms which were going to be sold at the Corvallis School. He further contends that the court incorrectly decided that it did not need any evidence on the adequacy of the juvenile facilities and incorrectly assumed that the juvenile facilities were inadequate based on the average length of stay at Pine Hills School for Boys (Pine Hills). J.D.W. maintains that by concluding that the juvenile facilities in Montana are inadequate to deal with a juvenile offender such as J.D.W., the Youth Court completely ignored the rehabilitative purpose of the Youth Court Act and instead focused only on retribution.

To begin our discussion, we emphasize that one of the stated purposes of the Montana Youth Court Act is

to remove from youth committing violations of the law the element of retribution and to substitute therefor a program of supervision, care, rehabilitation, and, in appropriate cases, restitution as ordered by the Youth Court.

Section 41-5-102(2), MCA. Therefore, our review of the Youth Court’s Order transferring this case to District Court, where J.D.W. will likely be placed in the custody of the Department of Corrections rather than the Department of Family Services, necessarily must ensure that the Youth Court has determined after careful consideration that the available juvenile facilities in Montana are inadequate in this case.

The overall standard of review applicable here is whether the Youth Court abused its discretion in ordering the transfer of the case to District Court for prosecution. In the Matter of J.A. (1992), 255 Mont. 214, 216, 841 P.2d 1130, 1131. As to specific findings of fact relied on by the Youth Court in making the decision to transfer the case to District Court, the standard is whether such findings are clearly erroneous according to the test set forth in Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. J.A., 841 P.2d at 1131. The first prong of the DeSaye test addresses whether the findings are supported by substantial evidence.

In accord with § 41-5-206(l)(d)(i), MCA, J.D.W. conceded there was probable cause to believe he committed the alleged offenses, but argued that the seriousness of the offense and protection of the community did not require treatment beyond that afforded by juvenile facilities. His argument pursuant to § 41-5-206(l)(d)(iii), MCA, that the offenses were not committed in a premeditated manner, is that the Youth Court’s finding that the acts were “premeditated” is not the same thing as “in a premeditated manner.” We agree with the State that this is a distinction without a difference. In addition, we conclude that there is substantial evidence in the record that the offenses were premeditated.

The critical determination we are concerned with on appeal, however, is § 41-5-206(l)(d)(ii), MCA — whether the seriousness of the offense and the protection of the community require treatment of the youth beyond that afforded by juvenile facilities. The Youth Court stated:

THE COURT: Well, in that regard, I’ll take judicial notice of the nature of the Youth Court system and specifically the fact that the most I can do in Youth Court is make an indefinite commitment to DFS. I can’t order DFS to retain anybody for any length of time ...
Whereas in adult court, I have more power over the Department of Corrections, and I can make definite commitments timewise to the Department of Corrections, but I simply don’t have that ability anymore under the statutes with the Department of Family Services.
Furthermore, I’ll take notice of the fact that... the commitment has to be indefinite, but the average length of time that youths are kept at Pine Hills, as I recall, [is] in the range of three to four months, and it’s rare that they’re kept longer. At this point, there are really no other youth detention facilities in the state of Montana that are available. So I don’t think I need any evidence.

The Youth Court took judicial notice of the history of Youth Court commitments in general. No evidence was presented as to whether the treatment to be afforded the youth in this case from Pine Hills and the Youth Court System would be adequate for J.D.W.’s rehabilitation. To the contrary, the court emphasized the inability under the Youth Court system to incarcerate J.D.W. beyond the average length of time at Pine Hills after a commitment there versus the length of time J.D.W. could be incarcerated or under the control of the court under the criminal court system if proceedings were transferred out of Youth Court. Furthermore, no findings were set forth by the court to support the conclusion that facilities under the Youth Court system are inadequate for treating J.D.W.

Prior cases addressing this same issue are helpful in addressing the question before us. In In the Matter of Stevenson (1975), 167 Mont. 220, 228, 538 P.2d 5, 9, the Court discussed the requirement of what is now § 41-5-206(1)(d)(ii), MCA, in a similar factual situation where the Youth Court had waived jurisdiction because of the seriousness of the offense. The youth contended that the transfer hearing was inadequate because there was no evidence presented to show that juvenile facilities were inadequate. The State argued that the very nature of the offenses demonstrated the need for treatment of the youth beyond available juvenile facilities. The Court stated:

We cannot agree. Tb assume that juvenile facilities are inadequate from the mere fact that the youth is charged with a serious offense, completely ignores the rehabilitative purpose of the Act... and is tantamount to a judicial admission the juvenile facilities in Montana are inadequate to cope with the hard core youth offender. We will not do this.
... there was no inquiry into the important question of whether Stevenson could be rehabilitated within the present structure of the youth system. As a related matter, there was no inquiry into the availability of facilities, programs and personnel under the youth court system and whether he would be amenable to these. Yet, a judicial consideration of this factor is required by [§ 41-5-206, MCA].

Stevenson, 538 P.2d at 9-10. Stevenson further stated that the Montana Youth Court Act does not require that the court make a specific finding that the youth is not amenable to the rehabilitative programs currently existing for a valid waiver of youth court jurisdiction, but it does require the judge to carefully consider this factor along with all other factors set out by the statute on transfer. Stevenson, 538 P.2d at 10. Stevenson further cited an article on waiver of youth court jurisdiction which stated that juvenile court personnel and judges regard waiver of youth court jurisdiction as the most severe sanction that may be imposed by juvenile court because

the probability of severe punishment [and] the confidentiality and individuality of the juvenile proceeding is replaced by the publicity and normative concepts of penal law [and] the child acquires a public arrest record which, even if he is acquitted, will inhibit his rehabilitation because of the opprobrium attached thereto by prospective employers ....

Stevenson, 538 P.2d at 10, citing F. Thomas Schomhorst, The Waiver of Juvenile Court Jurisdiction: Kent Revisited, 43 Ind. Law Journal 583, 586. Stevenson held that a proper transfer hearing requires the youth court to hear evidence relating to all factors set forth in § 41-5-206, MCA, and preserve that evidence in the transcript which will permit a meaningful appellate review and to make written findings giving reasons why the jurisdiction of the youth court is being waived. “[A] ll factors set forth by statute must be carefully considered and a very deliberate evaluation of each individual case must be effectuated prior to the entry of a waiver order.” Stevenson, 538 P.2d at 10.

Subsequently, in In the Matter of K.M.H. (1988), 231 Mont. 180, 183, 752 P.2d 162, 164, a case concerning a transfer hearing, we affirmed the order of a youth court transferring the youth to adult court where a medical director from a psychiatric treatment facility testified that the youth in question suffered from a schizotypal personality with a mild dysthymic disorder, recommended that the youth live in a structured environment and received treatment for several years and opined that the youth could have another explosive reaction if faced with a similarly stressful situation. In K.M.H., the superintendent of Pine Hills testified that Pine Hills was not an appropriate place to treat a “psychologically impaired youth who committed a homicide.” K.M.H., 752 P.2d at 164. The youth court in K.M.H. considered these and other factors before determining that the Youth Court system was inadequate for the length of time needed for psychiatric treatment of the youth and that the adult court system was in a better position to afford the appropriate psychiatric treatment needed by K.M.H. K.M.H., 752 P.d at 165.

In this case, there was no recommendation from the staff at Pine Hills, nor is there any evidence in the record that anyone from that facility or from the Department of Family Services or an appropriate psychiatric facility was ever contacted regarding this matter. What we have here is a summary determination by the Youth Court that the average length of stay at Pine Hills is inadequate for rehabilitation in this case. There is nothing in the record to support this determination. There is no testimony or other evidence from the staff at Pine Hills or anyone else that could indicate that the rehabilitative question — the purpose of the Montana Youth Court Act — was considered by the Youth Court. Therefore, we conclude that the Youth Court’s decision to transfer this matter to District Court for the sole reason of retaining control over his length of incarceration is an improper waiver of youth court jurisdiction.

We hold the Youth Court abused its discretion by ordering the proceedings transferred to District Court.

The Order of the Youth Court transferring this matter to District Court is vacated and the cause is remanded to the Youth Court for a further hearing and redetermination.

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