author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DAVID JAMES CHRISTENSON, Defendant and Appellant.
    No. 91-134.
    Submitted on briefs Aug. 1, 1991.
    Decided Nov. 19, 1991.
    250 Mont. 351.
    820 P.2d 1303.

      Edward G. Beaudette, Knight, Dahood, McLean & Everett, Anaconda, for defendant and appellant.
    Marc Racicot, Atty. Gen., Barbara Harris, Asst. Atty. Gen., Helena, Robert L. Deschamps, County Atty., Missoula, for plaintiff and respondent.
   JUSTICE GRAY

delivered the Opinion of the Court.

The defendant, David James Christenson, appeals his convictions of criminal possession of cocaine, criminal possession of methamphetamine and criminal possession of dangerous drug paraphernalia following a jury trial in the District Court of the Fourth Judicial District, Missoula County. We affirm.

The defendant raises the following issues:

1. Was the defendant denied effective assistance of counsel arising from a conflict of interest of trial counsel?

2. Was the defendant denied effective assistance of counsel as a result of trial counsel's stipulation to the admission of a videotape of the crime scene into evidence?

3. Did the District Court err by allowing the jury to view the videotape during deliberations?

On September 5,1989, a search warrant was executed at 911 Char-lo, Missoula, Montana, by members of the Missoula County Sheriff’s Department, the Missoula City Police Department and the Montana Criminal Investigation Bureau. The defendant answered the door to the residence and, upon entry, officers found Robert L. Peterson exiting one of the bedrooms. By checking identification and paperwork in the two bedrooms of the residence, officers established that one bedroom was occupied by the defendant and the other was occupied by Peterson.

Both the defendant and Peterson were arrested and transported to jail shortly after officers arrived. The officers continued their search of the residence and, as they conducted their search, a videotape was made of the items found and the rooms in which they were found.

In the bedroom occupied by the defendant, officers found the defendant’s wallet, including his driver’s license, and an envelope and numerous prescription pill bottles with his name on them. On top of the dresser, in plain view, Detective Larry Jacobs found a plastic bag containing white powder residue which was later identified as cocaine. In plain view on another dresser, Detective Jacobs found a spoon with white powder on it which was later identified as methamphetamine. Detective Jacobs also found a pipe in a dresser drawer. Cannabinol, a substance contained in marijuana, later was determined to be in the residues in the pipe. Detective Jacobs also found thirteen bindles, or folded paper containers, in the dresser. Three of the bindles contained methamphetamine. Numerous other items were found in the defendant’s and Peterson’s bedrooms, including additional dangerous drugs, scales, a police scanner and loaded weapons.

On September 12,1989, the defendant was charged by information with criminal possession of valium, criminal possession of methamphetamine with intent to sell, and criminal possession of dangerous drug paraphernalia. An amended information was filed on June 1, 1990, charging the defendant with criminal possession of cocaine, criminal possession of methamphetamine with intent to sell and criminal possession of dangerous drug paraphernalia.

A jury trial was held on October 29 through 31,1990 on the charges stated in the amended information. During trial, the defendant’s trial counsel, William Dee Morris, stipulated to the admission of the videotape into evidence with the provision that it be played without sound. After the jury began its deliberations, it requested a video cassette recorder in order to view the videotape. The court allowed the jury to view the videotape without volume in the jury room.

On October 31, 1990, the jury found the defendant guilty of criminal possession of cocaine, a lesser included offense of criminal possession of methamphetamine, and criminal possession of dangerous drug paraphernalia. Following trial, the defendant retained new counsel. The defendant was sentenced on December 6, 1990 to five years imprisonment in the Montana State Prison on the first two counts and to six months in the Missoula County Jail on the third count. The sentences on the first and third counts are to run concurrently; the sentence on the second count is to run consecutively and was suspended on certain terms and conditions. The defendant appeals his convictions.

I

Was the defendant denied effective assistance of counsel arising from a conflict of interest of trial counsel?

The Sixth Amendment guarantee of effective assistance of counsel is comprised of two correlative rights. The first is the right to counsel of reasonable competence. McMann v. Richardson (1970), 397 U.S. 759, 770-71, 90 S.Ct. 1441, 1448-49, 25 L.Ed.2d 763, 773. The second is the right to counsel’s undivided loyalty. Wood v. Georgia (1981), 450 U.S. 261, 271-72, 101 S.Ct. 1097, 1103-04, 67 L.Ed. 2d 220, 230.

The United States Supreme Court has articulated several standards by which to determine whether these rights have been violated. General claims of ineffective assistance of counsel involving challenges to counsel’s competency or performance are reviewed under the two-pronged test articulated in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. However, in cases raising claims of ineffective assistance of counsel due to conflicts of interest, the Strickland Court retained the standard articulated in Cuyler v. Sullivan (1980), 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed. 2d 333. Under Cuyler, a defendant must show: (1) that counsel actively represented conflicting interests, and (2) that an actual conflict of interest adversely affected counsel’s performance. Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719.

Where an ineffective assistance of counsel claim is based on an alleged conflict of interest, rather than a lack of reasonable competence, prejudice is presumed if the defendant satisfies both prongs of the Cuyler test. Strickland, 466 U.S. at 692, 104 S.Ct. at 2066. In such a situation, the presumption of prejudice is warranted because the duty of loyalty, “perhaps the most basic of counsel’s duties,” is breached, and “it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.” Strickland, 466 U.S. at 692, 104 S.Ct. 2066. Although Cuyler involved a conflict of interest between clients, the presumption of prejudice extends to conflicts between the client and his or her counsel’s personal interests. Mannhalt v. Reed (9th Cir. 1988), 847 F.2d 576, 580.

A short time after the defendant’s convictions in the District Court, his trial counsel, William Dee Morris, was charged by federal authorities with conspiracy to manufacture and distribute methamphetamine, income tax fraud arising from the sale of methamphetamine and other associated criminal activity. The defendant contends that because of Morris’ “apparent participation in the use, manufacture and distribution of methamphetamine at the same time” he was representing the defendant, the first prong of the Cuyler test is satisfied because an actual conflict of interest existed. The defendant cites Mannhalt, in which the Ninth Circuit Court of Appeals held that an actual conflict of interest exists when an attorney is accused of crimes similar or related to those of his client, in support of his argument. Mannhalt, 847 F.2d at 581.

The defendant asserts that the second prong of the Cuyler test can be presumed from the overall lack of aggressiveness shown by trial counsel in cross-examination and in counsel's failure to establish critical facts in presentation of the defense. He argues that a reading of the transcript demonstrates the lack of a coherent defense strategy and an avoidance of inquiry into issues such as Robert Peterson’s source for the methamphetamine which he testified he brought into the defendant’s residence.

In Mannhalt, the defendant, Guenter Mannhalt, was tried on charges of conspiracy to commit robbery, robbery, attempted robbery, and possession of stolen property. Before trial, a witness for the prosecution told police officers that Mannhalt’s trial counsel had purchased stolen property. Counsel became aware of this accusation while preparing for Mannhalt’s trial and, although he discussed the accusation with Mannhalt, he did not point out a potential conflict of interest. Counsel then represented Mannhalt at trial and Mannhalt was convicted. In Mannhalt’s claim for federal habeas corpus relief, the Ninth Circuit Court of Appeals held that the first prong of the Cuyler test was satisfied, stating:

‘We find that when an attorney is accused of crimes similar or related to those of his client, an actual conflict exists because the potential for diminished effectiveness in representation is so great. For example, a vigorous defense might uncover evidence of the attorney’s own crimes, and the attorney could not give unbiased advice to his client about whether to testify or whether to accept a guilty plea.”

Mannhalt, 847 F.2d at 581.

In this case, the defendant relies solely on the fact that shortly after his convictions in District Court, his trial counsel was charged by federal authorities with similar criminal offenses. Although the defendant asserts that Morris’ participation in drug-related offenses during the time of Morris’ representation is apparent, he does not allege that a conflict of interest existed because the basis of the federal charges were acts committed by Morris during Morris’ representation or that Morris was under investigation by federal authorities during Morris’ representation of him. In Mannhalt, trial counsel’s personal interests were conclusively shown to be at odds with those of the defendant during the time of his representation of the defendant because he was accused of a crime similar or related to those of the defendant during that time. Therefore, an actual conflict of interest existed. However, we do not read Mannhalt to imply that an actual conflict of interest exists where the only basis for the alleged conflict is a similar but unrelated charge against trial counsel occurring after the defendant was tried and convicted. In such a situation, whether counsel actually represented conflicting interests is left to speculation. At best, a “possibility’ of a conflict of interest exists which “is insufficient to impugn a criminal conviction.” Cuyler, 446 U.S. at 350, 100 S.Ct. 1719. We are not convinced that an actual conflict existed in this case between the defendant and his trial counsel.

Even assuming arguendo that an actual conflict of interest existed between trial counsel and the defendant, the defendant cannot establish that the actual conflict of interest adversely affected trial counsel’s performance under the second prong of the Cuyler test. Nothing in the record suggests that Morris’ method of cross-examination or his defense strategy was in any way motivated by a desire to protect his own personal interests at the defendant’s expense. In addition, Morris’ defense strategy at trial was to show that the defendant had invited Robert Peterson to stay with him at his residence while Peterson was experiencing marital difficulties and that the defendant was unaware of the fact that Peterson had brought the drugs and related paraphernalia into the residence. Peterson’s own testimony supported that claim. The State offered two witnesses, Detective Jacobs, who participated in the arrest of the defendant and the search of his residence, and Judith Hoffmann, a forensic scientist at the Montana State Criminal Laboratory, who examined and analyzed evidence seized from the defendant’s residence. Much of their testimony concerned the drugs and related paraphernalia which was found and the locations within the residence in which they were found, all of which was damaging to the defendant. In light of the State’s evidence, trial counsel’s decision not to conduct extensive cross- examination was a tactical decision within his discretion. Extensive cross-examination would have ran the risk of eliciting cumulative or additional damaging testimony, further harming the defendant’s case. Given trial counsel’s defense strategy, we see no reason why Peterson’s source of methamphetamine was critical to the defendant’s case in any way, and the defendant has failed to demonstrate otherwise.

We conclude that trial counsel’s performance was not adversely affected by an actual conflict of interest and, thus, the defendant was not denied effective assistance of counsel under the standard set forth by the United States Supreme Court in Cuyler.

II

Was the defendant denied effective assistance of counsel as a result of trial counsel’s stipulation to the admission of the videotape of the crime scene into evidence?

The defendant maintains that he received ineffective assistance of counsel in that trial counsel failed to vigorously and competently oppose the admission of the videotape into evidence. In evaluating general claims of ineffective assistance of counsel, this Court utilizes the two-pronged test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. First, counsel’s performance must be deficient. To assess deficient performance, this Court employs the “ ‘reasonably effective assistance’ test of whether a defendant’s counsel acted within the range of competence demanded of attorneys in criminal cases. [Citation omitted.]” State v. Elliott (1986), 221 Mont. 174, 178, 717 P.2d 572, 575. Second, counsel’s deficient performance must have so prejudiced the defendant as to deprive the defendant of a fair trial. State v. Leavens (1986), 222 Mont. 473, 475, 723 P.2d 236, 237. The standard for evaluating prejudice is whether a reasonable probability exists that but for counsel’s deficient performance, the trial’s outcome would have been different. Leavens, 222 Mont. at 475, 723 P.2d at 237.

In this case, the testimony of Detective Jacobs was used as foundation for the admission of the videotape into evidence. The defendant claims that the videotape was inadmissible because its “authenticity or correctness” was not established in that Detective Jacobs’ statement that the videotape was made during the search of the premises is false. He states that “[t]he tape itself clearly establishes that the videotaping was not of the search in progress but rather a documentation of the search results after the initial discovery of what was purported to be evidence of crime.” The defendant contends that the videotape does not show the condition of the premises before the search began and that it does not accurately depict the circumstances of the search because it does not actually show the search in progress. The defendant argues that the prejudice he suffered is evident by the fact that the jury requested and was allowed to view the videotape during deliberations.

Under Rule 901(a), M.R.Evid., the requirement of authentication or identification is satisfied “by evidence sufficient to support a finding that the matter in question is what its proponent claims.” In addition, the trial court judge has wide discretion in determining the adequacy of foundation for the admission of evidence. City of Missoula v. Forest (1989), 236 Mont. 129, 134, 769 P.2d 699, 702.

The record reflects that the videotape at issue shows the defendant’s residence in Missoula. More specifically, the bedrooms occupied by the defendant and Robert Peterson are shown at length; in addition, items of personal identification, dangerous drugs, drug paraphernalia, money, and weapons are displayed, some after they were moved by officers and others both before and after they were moved. However, the defendant’s argument that the videotape’s authenticity could not be established overlooks Detective Jacobs’ testimony as to how and when the videotape was made. Detective Jacobs testified that the videotape shows him searching the defendant’s bedroom; the videotape also shows items in the other bedroom because other officers in the search had the video camera operator move at various times to the other bedroom and tape items that they had found while Detective Jacobs continued his search.

To be authentic, the videotape in this case did not have to be filmed in a certain way or at a certain time. Neither the State nor Detective Jacobs asserted that the videotape showed the search in a step-by-step manner but rather asserted that the videotape documented items found in the residence. Given the purpose for which it was offered, the videotape was properly authenticated. In addition, the defendant’s concern that the videotape did not fully show the premises prior to, diming, and after the search goes to the weight of the evidence, which is in the exclusive province of the jury, and not to its admissibility. See State v. Armstrong (1980), 189 Mont. 407, 616 P.2d 341; State v. Laverdure (1990), 241 Mont. 135, 785 P.2d 718.

We also disagree with the defendant’s assertion that the videotape was unduly prejudicial and, therefore, should have not been admitted into evidence. Because the videotape was shown to the jury without sound, there was no verbal testimony by any person, only a view of the items later introduced at trial as evidence of the crimes charged. Thus, any possible prejudicial effect of the videotape was minimal. The videotape was probative to the issues involved in the case in that it served to corroborate and illustrate Detective Jacobs’ testimony. The videotape was properly admitted into evidence.

Not only has the defendant failed to show that trial counsel’s performance was deficient, he has also failed to show that but for the admission of the videotape into evidence a reasonable probability exists that the outcome of the trial would have been different. There was substantial evidence, including the items of evidence and their locations in the residence as established by testimony at trial, of the defendant’s possession of dangerous drugs and related paraphernalia. We hold that the defendant was not denied effective assistance of counsel as a result of trial counsel’s stipulation to the admission of the videotape into evidence.

Ill

Did the District Court err by allowing the jury to review the videotape during deliberations?

The defendant asserts that he was prejudiced by the District Court allowing the videotape to be viewed by the jury during its deliberations. He argues that the videotape was unreliable and contained prejudicial information which was emphasized by the jury’s opportunity to view the videotape again. In addition, citing People v. Montoya (Colo.App.1989), 773 P.2d 623, the defendant contends that the videotape was testimonial in nature and argues that the jury was allowed to give undue weight to this testimonial evidence.

Section 46-16-504, MCA (1989), in effect at the time of the defendant’s trial, states:

“Upon retiring for deliberation, the jury may take with them all papers which have been received as evidence in the cause, except depositions or copies of such papers as ought not, in the opinion of the court to be taken from the person having them in his possession. The jury may also take with them any exhibits which the court may deem proper and notes of the proceedings taken by themselves.” [Emphasis added.]

In State v. Morse (1987), 229 Mont. 222, 233, 746 P.2d 108, 115, we found no error in allowing the jury to take audio tapes into the jury room, stating that “[j]ust as with papers which have been properly admitted into evidence that are allowed in the jury room during deliberations, the tapes were evidence which, at the discretion of the court, could be allowed.” Here, we have already concluded that the videotape was properly admitted into evidence. Having been properly admitted, the videotape was evidence which, at the discretion of the court, could be viewed by the jury during deliberations.

We also note that Montoya, cited by the defendant, is not applicable to the present case. Montoya involved a videotaped statement to police given by a witness to a robbery. Analogizing the videotaped statement to a deposition, the Colorado Court of Appeals held that the trial court committed prejudicial error in allowing the jurors unrestricted, unsupervised access to the videotape during their deliberations, stating:

“[B]ecause jurors may give undue weight to the testimony contained within a deposition which they take with them and may not accord adequate consideration to controverting testimony received from live witnesses, it is the universal rule that depositions may not be reviewed by a jury on an unsupervised basis. [Citations omitted.]
“For these reasons, we conclude that a trial court may allow jurors to review a videotape of a witness’ previous statements, which has been admitted for substantive purposes, only under circumstances that will assure that such statements are not given ‘undue weight or emphasis.’ ” [Citation omitted.]

Montoya, 773 P.2d at 625-26. In the present case, the videotape of the crime scene documenting the evidence seized was played to the jury without a sound track. As such, the videotape is analogous to a photograph or series of photographs. It is not akin to deposition testimony or other testimonial evidence which carries with it those dangers recited by the Court in Montoya. We conclude that the District Court did not abuse its discretion when it allowed the jury to review the videotape during deliberations.

Affirmed.

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


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    JESSE BRICENO, Petitioner and Appellant, v. CEREAL FOOD PROCESSORS, INC. Employer and Defendant, and NATIONWIDE INSURANCE COMPANY, Defendant and Respondent.
    No. 91-094.
    Submitted on briefs Oct. 10, 1991.
    Decided Nov. 19, 1991.
    250 Mont. 362.
    820 P.2d 1310.

      Michael J. Whalen, Whalen & Whalen, Billings, for petitioner and appellant.
    JonT. Dyre, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, for defendant and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Jesse Briceno appeals from an order of the Workers’ Compensation Court denying his claim for continuing temporary total disability benefits and for a lump-sum payment of benefits. Nationwide Insurance Company cross-appeals on the issue of whether Briceno has proven that he suffered an industrial injury which resulted in a disability. We affirm in part and reverse and remand in part.

The issues are:

1. Did the Workers’ Compensation Court err in concluding that Briceno’s condition is causally related to the injury received at Cereal Food Processors, Inc.?

2. Did the court err in ruling that Briceno was not entitled to continuing total disability benefits on August 7,1989, and thereafter during the retraining which he is pursuing?

3. Did the court err in failing to award Briceno any lump-sum payment of benefits and a 20 percent increase in his award pursuant to § 39-71-2907, MCA (1985)?

The parties stipulated that Jesse Briceno suffered a back injury on June 17,1986, while working for Cereal Food Processors, Inc. (Cereal Food), and that this injury was an aggravation of a previous injury on December 4, 1985. Nationwide Insurance Company (Nationwide) is the insurance carrier for Cereal Food.

Cereal Food accepted liability for Briceno’s injury, and Nationwide paid him temporary total disability benefits from December 9, 1988, through August 7, 1989. At that time, Nationwide converted Briceno’s benefits to partial disability benefits, after being advised by Briceno’s doctor that he had reached maximum medical healing and was approved for several alternate job positions. Later that month, Briceno enrolled as a student at Eastern Montana College. He initially obtained funds for this endeavor from Project Challenge-Work Again, through the AFL-CIO, but since April 1990, he has been enrolled under a State of Montana Department of Social and Rehabilitation Services written rehabilitation program. He is pursuing a bachelor of science degree in human services.

Briceno filed a petition with the Workers’ Compensation Court alleging that he is entitled to continued temporary total disability benefits during retraining and asking for a lump-sum conversion of a portion of the benefits awarded to him. The Workers’ Compensation Court ruled that Briceno’s condition is causally related to the injury he received at Cereal Food. It also ruled that conversion of Briceno’s benefits from temporary total to permanent partial was proper because Briceno’s doctor had determined that he had reached maximum medical healing and could return to work in a full-time position as a management trainee, material clerk, inventory clerk, or keypunch operator, and Briceno had been given proper notice of the conversion of his benefits. The court ruled that Briceno is not entitled to receive temporary total disability benefits during retraining, nor is he entitled to receive a lump-sum payment or a penalty for unreasonable delay or refusal to pay pursuant to § 39-71-2907, MCA (1985). It awarded Briceno his attorney fees and costs for proving a causal relationship between his condition and his injury at Cereal Food.

I

Did the Workers’ Compensation Court err in concluding that Briceno’s condition is causally related to the injury received at Cereal Food Processors Inc.?

The Workers’ Compensation Court concluded that

“[t]he evidence indicates that when claimant began working with Cereal Foods or its predecessor in August 1978, his spine was already involved in a degenerative process. However, the injury which occurred when he lifted a 70-pound motor happened to accelerate his condition.”

Nationwide argues that Briceno did not prove that his pre-existing degenerative disc disease was aggravated by an industrial accident so that benefits can be awarded. It argues that the deposition of Dr. Lewallen, which was not taken until shortly before the Workers’ Compensation Court hearing, supports its position that the cause of Briceno’s degenerative disc disease was wear and tear, not injury. Nationwide relies upon the following testimony of Dr. Lewallen:

“Q: Based upon your knowledge and treatment and evaluation of Jesse Briceno, can you state to a reasonable degree of medical certainty whether Jesse’s degenerative disc disease is due to injury or to wear and tear?
“[Objection omitted.]
“A: Well, I think it’s — I guess my opinion is that it’s a result of wear and tear.
“Q: And upon what are you basing that opinion?
“[Objection omitted.]
“A: Well, in going through the records, it doesn’t seem like — Well, there was one incident where he lifted an object and had increased pain. But his medical record reflects exacerbations of back discomfort associated with activity, and some of it associated to activities at work, some not, that resulted in exacerbation of his back discomfort. It was Dr. Dorr’s opinion when he initially saw him that he had”
“[Objection omitted.]
“A: It was his opinion that he had some degenerative disc problems initially.”

Briceno’s uncontradicted testimony was that he had a complete physical and was not having any trouble with his back when he began work for Cereal Food in 1978. Then, for several years, he was an “elevator man” for Cereal Food, which involved shoveling grain with a scoop shovel weighing approximately forty to fifty pounds when filled. In December 1985, he began suffering back pain. Briceno’s doctor took him off work for a week.

On June 17,1986, when Briceno was lifting a seventy-pound motor to be used in emptying a grain bin at work, he had a crushing sensation in his back and went home, unable to continue working. He saw Dr. Lewallen, who prescribed pain medication. Briceno returned to work about a week later, but his back continued to bother him. In October 1987, on the advice of the Cereal Food company doctor, he was moved to a lighter duty job at Cereal Food. However, he continued to have pain and problems with his back. In November 1988, a .ain on the company doctor’s advice, his employment was terminated. Dr. Lewallen testified that a 1990 CAT Scan of Briceno’s back showed no change from a CAT Scan conducted in 1988, just before he terminated his employment with Cereal Food.

If there is strong enough evidence that a gradually developing injury is job related, it is an “injury” within the meaning of the workers’ compensation law and is compensable. Jones v. St.Regis Paper Co. (1981), 196 Mont. 138, 149, 639 P.2d 1140, 1146. During his deposition, Dr. Lewallen was not advised of the technical definitions of “injury” and “wear and tear” when used in workers’ compensation matters.

There is no evidence that Briceno suffered any injury to his back other than in the performance of his duties for Cereal Food. We conclude that there is sufficient evidence to support the Workers’ Compensation Court’s conclusion that the June 1986 injury accelerated his condition. We hold that the Workers’ Compensation Court did not err in concluding that Briceno’s condition is causally related to his injuries at Cereal Food.

II

Did the court err in ruling that Briceno was not entitled to continuing total disability benefits on August 7,1989, and thereafter during the retraining which he is pursuing?

Because Briceno’s industrial accident occurred between 1985 and 1987, this Court’s recent opinion in Peile v. State Fund (Mont. 1991) [250 Mont. 81,] 817 P.2d 1149, 48 St.Rep. 853, applies. As in that case, §§ 39-71-1001 and -1003, MCA (1985), govern. Section 39-71-1001, MCA (1985), was not limited to totally permanently disabled individuals but applied to all workers “who have become permanently disabled as the result of injuries sustained within the scope and course of employment... and who, in the opinion of the division, can be vocationally rehabilitated.” Section 39-71-1003, MCA (1985), provided that “[a] person undergoing vocational rehabilitation must be paid temporary total disability benefits.” (Emphasis supplied.) As in Peile, any doubt as to the meaning of the statutes must be resolved in favor of the injured worker. Section 39-71-104, MCA (1985).

Briceno is permanently disabled. Since April 1990, he has been undergoing an individual program of vocational rehabilitation through the Department of Social and Rehabilitation Services (SRS), which was the only entity authorized to provide such a program under § 39-71-1001, MCA (1985). We conclude that Briceno is entitled to temporary total disability benefits while he is undergoing vocational rehabilitation through SRS. As to that period of time, we reverse the decision of the Workers’ Compensation Court.

Ill

Did the court err in failing to award Briceno any lump-sum payment of benefits and a 20 percent increase in his award pursuant to § 39-71-2907, MCA (1985)?

Briceno asserts that while he is continuing with his program of retraining at Eastern Montana College, he “should have sufficient of his compensation awarded in a lump sum so as to prevent him from having to live upon the charity of his aged parents.” He also claims entitlement to a 20 percent increase in benefits under § 39-71-2907, MCA (1985), for unreasonable delay or refusal to pay.

In the hearing before the Workers’ Compensation Court, Briceno did not present any documentation of his debts, nor did he request a specific amount as a lump sum. The Workers’ Compensation Court concluded that “[Briceno] has failed to demonstrate to the Court that the receipt of a lump sum would be in his best interest.” Section 39-71-741(2), MCA (1985), provided that “[i]t is presumed that biweekly payments are in the best interests of the worker.” In the absence of any documentation of the amount of Briceno’s debts or a request for a lump sum in a specific amount, we hold that the court did not err in determining that Briceno failed to demonstrate that a lump-sum payment would be in his best interest.

Affirmed in part, reversed in part and remanded for farther proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, TRIEWEILER, GRAY, McDONOUGH, HUNT, and WEBER concur.


text:
    ARLENE BRACKMAN, RN, License No. RN 06169; MARY MOUAT, RN, License No. RN 07358; DEBBIE RUGGLES, RN, License No. RN 17406; RUTH SASSER, RN, License No. RN 18738; VERNA VanDUYNHOVEN, RN, License No. RN 18699; LYNN ZAVALNEY, RN, License No. RN 08577; Petitioners and Respondents, v. BOARD OF NURSING, an Administrative Agency of the Department of Commerce, State of Montana, Respondent and Appellant.
    No. 91-402.
    Submitted on briefs Nov. 12, 1991.
    Decided Nov. 21, 1991.
    250 Mont. 368.
    820 P.2d 1314.

      Robert J. Emmons, Emmons & Sullivan, Great Falls, Steven J. Shapiro, Spec. Asst. Atty. Gen., Helena, for respondent and appellant.
    Gary L. Davis, Luxan & Murfitt, Helena, for petitioners and respondents.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The Board of Nursing (Board) appeals from an order of the District Court for the First Judicial District, Lewis and Clark County, granting a stay of enforcement of the administrative order entered in this matter, pending judicial review. We affirm.

Two issues raised by the Board are dispositive. They are:

1. Must the petitioners and respondents formally apply to the Board for a stay of its final order before a stay may be sought in the District Court?

2. Did the District Court abuse its discretion by issuing an order staying enforcement of the Board’s order pending judicial review?

The Board is charged with administrative responsibility for issuing, revoking, and suspending licenses of registered nurses in Montana. Title 37, Chapter 8, MCA. Petitioners and respondents are registered nurses who the Board determined violated certain federal statutes and Montana statutes and administrative rules while they were employed in the Hospice Department of St. Peter’s Community Hospital, Inc., in Helena, Montana, during the years 1989 and 1990.

This matter was heard by a hearing examiner contracted by the Board on April 15 through 17, 1991. The Board met to consider the matter on May 8, 1991, and reconvened on May 29, 1991, after adjourning to review the entire record. The Board rejected the findings and conclusions of its hearing examiner. On June 28,1991, based on its review of the record, the Board issued its own findings of fact, conclusions of law, and a final order placing the nursing licenses of petitioners and respondents on probation for periods ranging from three to five years. On July 2,1991, the petitioners and respondents petitioned for judicial review in District Court. Simultaneously, they moved for a stay of enforcement of the Board’s final order, with supporting affidavits.

The District Court immediately granted an ex parte temporary restraining order and set a show cause hearing for July 12,1991. At that hearing, petitioners and respondents filed updated affidavits in support of their motion for a stay. After hearing argument, the District Court made oral findings and conclusions and signed an order staying enforcement of the Board’s action until judicial review is completed. The Board appeals.

I

Must the petitioners and respondents formally apply to the Board for a stay of its final order before a stay may be sought in the District Court?

This argument is based on the requirement that administrative remedies must be exhausted before judicial relief may be pursued. Section 2-4-702(l)(a), MCA. The Board argues that the District Court should have deferred to the expertise of the Board and allowed the Board to consider the motion for a stay before entering its own ruling on the motion.

The Board concedes that petitioners and respondents moved for an order to delay the effective date of the Board’s order at the end of the last hearing before the Board. The order later issued by the Board did not include such a delayed effective date or even refer to that request. While, technically, the Board may be correct that there was no formal request for a stay pending judicial review, we conclude that requiring a formal motion to the Board after it issued its final order would be elevating form over substance. We hold that petitioners and respondents were not required to again apply to the Board for a stay before they could make the same request to the District Court.

II

Did the District Court abuse its discretion by issuing an order staying enforcement of the Board’s order pending judicial review?

A person who has exhausted all administrative remedies and who is aggrieved by a final decision of an administrative agency may petition for judicial review under 2-4-701 through 711, MCA. Section 2-4-702(3), MCA, provides:

“Unless otherwise provided by statute, the filing of the petition shall not stay enforcement of the agency’s decision. The agency may grant or the reviewing court may order a stay upon terms which it considers proper, following notice to the affected parties and an opportunity for hearing.” [Emphasis supplied.]

The Board argues that this Court should adopt the standards set forth in Virginia Petroleum Job. Ass’n v. Federal Power Comm’n (D.C. Cir. 1958), 259 F.2d 921, to guide a district court’s exercise of discretion under 2-4-702(3), MCA. The petitioners and respondents argue that the standards governing the issuance of preliminary injunctions, set forth at 27-19-201, MCA, apply, and that they have been met. The Board points out, however, that under 27-19-303(2)(b), MCA, an injunction may not be based upon affidavits “upon information and belief.” The Board argues that the first set of affidavits filed by petitioners and respondents addressed what they believed the Board’s final order would contain and thus were “upon information and belief.”

Standards for judicial review of certain aspects of administrative decisions are specifically set forth under 2-4-704, MCA, but the consideration of a motion for stay pending judicial review is not one of the areas listed there. No authority is cited for the idea that the standards for issuing preliminary injunctions apply. The legislature has not seen fit to limit the discretion of the district courts in deciding motions for stays under 2-4-702(3), MCA. We decline to adopt the suggested restrictions upon the discretion of district courts in deciding such motions.

In deciding the motion for a stay, the District Court had before it the petition for judicial review; two sets of affidavits of each of the petitioners and respondents; and the findings, conclusions, and order of the Board. The court also heard the arguments of counsel. Near the end of the hearing on the motion for a stay, the District Court stated:

“[I]t is my inclination to extend the stay unless — unless there is a danger that the nurses are going to commit the same conduct that is specifically addressed in the board’s order, the findings of fact and conclusions of law, and it is my feeling that because of the public scrutiny that everybody is under now with respect to this particular case, that it is highly unlikely that the nurses are going to engage in the conduct that is the specific issue that is specifically addressed by this Board’s order.”

The court then asked if counsel for the Board had anything to support the argument that there was a genuine danger that the nurses would continue with the same conduct that was addressed in the Board’s order. The Board presented no argument on that aspect. We hold that it has not been shown that the District Court abused its discretion in issuing the stay pending judicial review.

The Court stresses that this matter is before us on procedural issues only. Although it is not raised as an issue, because of our ruling that the statutes on injunctions do not apply, technically no appeal-able order has been entered. The merits of the case are not now before this Court, nor have they yet been considered by the District Court. Review of the record on its merits will take place in further proceedings, as part of the judicial review to which petitioners and respondents are entitled.

The order granting a stay of execution of the Board’s order pending judicial review is affirmed.

JUSTICES HARRISON, HUNT, GRAY, WEBER, TRIEWEILER, and McDONOUGH concur.


text:
    SAMUEL J. GRENZ, Claimant and Appellant, v. FIRE AND CASUALTY OF CONNECTICUT, Insurer, Defendant and Respondent.
    No. 91-221.
    Submitted on briefs July 25, 1991.
    Decided Nov. 5, 1991.
    Rehearing Denied Dec. 4, 1991.
    250 Mont. 373.
    820 P.2d 742.

      Samuel J. Grenz, pro se.
    Terry G. Spear, Matovich, Addy & Keller, Billings, for insurer, defendant and respondent.
   JUSTICE GRAY

delivered the Opinion of the Court.

The claimant, Samuel J. Grenz, appearing pro se, appeals from the judgment of the Workers’ Compensation Court denying him workers’ compensation benefits. We affirm.

The dispositive issue on appeal is whether the Workers’ Compensation Court erred in ruling that the claimant is not permanently totally disabled as a result of his August 22,1984, right elbow injury and that the claimant’s psychological problems are not compensably related to that injury.

At the time of trial, the claimant was 46 years old, married and living in Whitefish, Montana. His work history includes employment as a laborer, mill worker, driller and miner. The claimant has been a body builder since he was eight years old.

On August 22,1984, the claimant bumped his right elbow on a steel hand railing while working for American Stud Company in Flathead County; the claimant had been working as a side edger for his employer since 1979. The elbow became sensitive and inflamed, and the claimant was examined the next day by Dr. Ken McFadden at the Family Physicians Clinic in Whitefish. The injury involved limited medical bills and no lost wages. The claimant’s medical bills were paid by the workers’ compensation insurer, Fire and Casualty of Connecticut.

On January 29,1985, Dr. Ronald A. Miller, the claimant’s treating physician since 1977, saw the claimant for discomfort in both elbows, both wrists, both hands, and his cervical, thoracic and lumbar spine. Based on laboratory data, X-rays, the claimant’s personal history and a physical examination, Dr. Miller diagnosed the claimant as having degenerative arthritis which is an inflammatory disease of the joints. Dr. Miller also discussed with the claimant in February 1985 the probability that the claimant’s continued weight lifting activities would make his symptoms worse.

On November 18, 1985, Dr. Miller saw the claimant again and diagnosed his condition as degenerative arthritis of his fingers, wrists and shoulders, and recurrent bursitis and epicondylitis of his elbows. That same day, Dr. Miller gave the claimant a note in which he recommended that the claimant not do any lifting or physical use of his elbows and shoulders for several weeks due to a flare-up of bursitis and arthritis.

The claimant gave the note to his employer and reported that his condition at that time was related to his August 22,1984, right elbow injury. The employer then notified the insurer that the claimant would be off work for several weeks due to his 1984 elbow injury. Thereafter, the insurer assumed liability for the injury and paid compensation and medical benefits to and for the claimant. The claimant received temporary total disability benefits. The claimant has not worked since November 18, 1985, due to progressive degenerative problems. The insurer continued to pay workers’ compensation benefits to the claimant through the time of trial.

Dr. Miller’s deposition testimony was that the claimant’s work activity over a period of time was probably more responsible for the claimant’s degenerative arthritis than his body building. He could not provide any reasonable medical explanation of how the claimant’s left elbow, left thumb, index finger and joint pain could have been the result of bumping his right elbow at work.

Beginning in April 1986, the claimant, complaining of lower back pain and stiffness, received a series of chiropractic adjustments to his lower back from Dr. Arvin R. Wilson. He had received similar treatments from Dr. Wilson from August 1977 to December 1979 and was directed to return if and when he needed further treatment. At the time the claimant returned for chiropractic treatments in 1986, he was receiving workers’ compensation benefits and had been off work for five months. However, the claimant never suggested to Dr. Wilson that his back problem was related to his bumped right elbow. When 63 chiropractic adjustments failed to improve the claimant’s lower back condition, he was referred to a pain management specialist.

In February 1988, at the insurer’s request, the claimant was examined by a panel of multi-disciplinary medical specialists assembled and coordinated by Medical Management Northwest. The panel diagnosed the claimant as having lumbar degenerative disease attributable to both work-related injuries and the claimant’s weight lifting avocation. In addition, the panel found X-ray evidence of calcification and abnormal bone formation in the claimant’s right elbow and again traced the condition to his recurrent work-related injuries and aggravation from his weight-lifting activities. The panel felt that the claimant was at “maximum medical improvement” and further medical treatment was not needed at that time. In relation to psychological difficulties, the panel found that the claimant was suffering from a personality disorder and learning disability but determined that these conditions were not work related.

Subsequent to the panel’s evaluation, the insurer, on August 24, 1988, reduced the claimant’s benefits from temporary total disability to permanent partial disability. The claimant’s total disability status was reinstated on December 15,1988, retroactive to August 24,1988, following mediation of the claimant’s claim. The claimant at this time received permanent total disability benefits.

Dr. John W. Hilleboe, an orthopedic surgeon who was a member of the medical panel, explained in his deposition that the medical panel’s use of the phrase “work-related injuries” reflected its belief that the claimant’s progressive degenerative problems may have resulted from heavy occupational or vocational activity as well as avocational activity. Dr. Hilleboe testified that the kind of degenerative changes that the claimant has experienced are not likely to result from an acute injury. He further testified that he found no significant difference between the condition of the claimant’s two elbows and that he found no evidence that the claimant’s back problems are related to the claimant’s August 22, 1984, right elbow injury.

Dr. John V. Stephens, the director of the physical medicine and rehabilitation program at the Kalispell Regional Hospital Rehabilitation Center, was also a member of the medical panel which examined the claimant in February 1988 and he authored the panel’s evaluation summary. Dr. Stephens testified in his deposition that he had no opinion as to whether the 1984 right elbow injury might be responsible for the problems found by the panel. He deferred that question to Dr. Hilleboe. Dr. Stephens testified that nothing in his records relating to the medical panel’s evaluation suggested that the 1984 right elbow injury was causally related to the chronic irritation of the claimant’s left elbow or that that injury may have contributed to the claimant’s back problems.

Dr. Herbert Gray is a psychiatrist who treated the claimant for major depression requiring hospitalizations in January 1986 and December 1989. Dr. Gray testified in his deposition that the claimant has suffered from chronic depression throughout his life. In a letter dated October 17,1988, addressed “TO WHOM IT MAY CONCERN,” he agreed with the medical panel’s conclusion that the claimant’s learning disability is not a consequence of his industrial accident. However, Dr. Gray believed that the industrial injury represented a greater insult to the claimant than would otherwise have occurred because the claimant overemphasized his physical ability.

Dr. Gray noted that due to serious abuse as a child, and perhaps other factors, the claimant had preexisting psychological problems. He further noted that the claimant’s ability to fight with and intimidate people was a way of coping which the claimant learned as a child and continued to use as an adult. Dr. Gray did not testify that the claimant’s hospitalizations or psychotherapy were caused by the claimant’s 1984 right elbow injury.

Dr. James H. Mahnke, a neurosurgeon, examined the claimant on March 6, 1989. Based on X-rays and scans, Dr. Mahnke diagnosed cervical spondylosis at C6-7 and lumbar spondylosis with herniated discs at L4-5 and L5-S1. Dr. Mahnke testified in his deposition that he did not know what caused the claimant’s condition.

On March 7,1990, Dr. William Stratford, a psychiatrist, examined and tested the claimant on the insurer’s behalf. Dr. Stratford testified in his deposition that the claimant suffered from anxiety and depression due to his loss of physical prowess and inability to work. However, Dr. Stratford could not opine to what extent the claimant’s right elbow injury, as distinguished from the claimant’s other medical complaints, may have contributed to his psychological problems.

In his May 2, 1990, petition to the Workers’ Compensation Court, the claimant asserted that he was totally disabled as a result of his August 22, 1984, right elbow injury and requested that the insurer be ordered to convert all future benefits into a lump-sum payment, assessed a statutory 20 percent penalty, and ordered to pay costs. The claimant also requested payment of the expenses from his 1989 hospitalization for depression and for continuing psychotherapy. The insurer disputed both the claimant’s entitlement to a lump-sum conversion and his disability status.

After a trial held on September 17,1990, the Workers’ Compensation Court ruled that the claimant is not permanently totally disabled as a result of his August 22, 1984, right elbow injury and that his psychological problems are not compensably related to that injury. The claimant’s motion for reconsideration or a new trial was denied. This appeal followed.

Did the Workers’ Compensation Court err in ruling that the claimant is not permanently totally disabled as a result of his August 22, 1984, right elbow injury and that the claimant’s psychological problems are not compensably related to that injury?

The Workers’ Compensation Court found that the claimant failed to establish, by a preponderance of the medical evidence, a causal connection between his current degenerative condition and his 1984 right elbow injury and, therefore, concluded that the claimant is not permanently totally disabled as a result of his August 22,1984, right elbow injury. The Workers’ Compensation Court also found that the psychological problems that the claimant experiences may have been aggravated by his loss of physical prowess but that no medical evidence was presented showing that the claimant’s loss of physical functioning is related to his 1984 right elbow injury. Based on this finding, the court concluded that the claimant is not entitled to payment for his 1989 hospitalization for depression or for continuing psychotherapy.

This Court will not overturn findings of fact of the Workers’ Compensation Court if there is substantial credible evidence in the record to support them. Kraft v. Flathead Valley Labor & Contr. (1990), 243 Mont. 363, 365, 792 P.2d 1094, 1095. The Workers’ Compensation Court’s conclusions of law will be upheld if the tribunal’s interpretation of the law is correct. Steer, Inc., v. Dept. of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

The claimant raises several arguments challenging the decision of the Workers’ Compensation Court. Initially, the claimant asserts that the court’s determination that he was not permanently totally disabled ignored the first issue in the pretrial order, which was whether the claimant is “totally disabled.” He argues that disability may be temporary total or permanent total and by limiting its decision to whether he is permanently totally disabled the Workers’ Compensation Court changed the whole intent of the first issue to the insurer’s advantage. We disagree. The claimant argued before the Workers’ Compensation Court that the parties’ stipulation in a prior action that the claimant was at that time “presently” permanently disabled, is res judicata in the present action. The Workers’ Compensation Court rejected the claimant’s position, stating that:

“The stipulation previously entered only binds the parties for the purposes of that action only, and it has no effect on subsequent litigation. Defendant refused such stipulation and it was agreed by both parties that it is the first issue for determination in this litigation.”

In addition, in his petition to the Workers’ Compensation Court, the claimant sought a lump-sum conversion of permanent total disability benefits. The issue of whether the claimant is permanently totally disabled necessarily had to be determined in order to reach his lump-sum demand.

The claimant next asserts that the Workers’ Compensation Court erred in finding that his current disabilities were not caused by his employment. He argues that, through his employment, he suffered a series of “micro-traumas” attributable to constant vibrations of machinery, heavy lifting, and multiple jars and jolts to his joints. The claimant asserts that these “industrial injuries,” which he suffered after and in addition to this August 22, 1984, injury and which were reported to his employer, caused him to develop bis degenerative joint disease.

The insurer argues that the claimant’s sole basis for entitlement to benefits was his August 22, 1984, right elbow injury and asserts that the claimant is now arguing a completely different theory on appeal than that which was presented to the Workers’ Compensation Court. We agree. Our review of the record shows that the claimant admitted at trial that the sole basis for his claim to benefits in that proceeding was his 1984 injury.

“Q. Your injury occurred in 1984?
“A. Right.
“Q. That’s the only industrial injury you claim; is that right?
“A. Right

The claimant is limited on appeal to those issues which he presented to the Workers’ Compensation Court. Baldwin v. Orient Express Restaurant (1990), 242 Mont. 373, 376, 791 P.2d 49, 50. Thus, on appeal, we will consider only whether the Workers’ Compensation Court properly determined that the claimant failed to establish a causal connection between his current physical condition and his August 22, 1984, right elbow injury and, therefore, was not permanently totally disabled as a result of the 1984 injury.

Section 39-71-116(13), MCA (1983), in effect at the time of the claimant’s 1984 injury, defines permanent total disability as follows:

“ ‘Permanent total disability’ means a condition resulting from injury as defined in this chapter that results in the loss of actual earnings or earning capability that exists after the injured worker is as far restored as the permanent character of the injuries will permit and which results in the worker having no reasonable prospect of finding regular employment of any kind in the normal labor market. Disability shall be supported by a preponderance of medical evidence.”

Causation is an essential element to an entitlement to benefits and the claimant has the burden of proving a causal connection by a preponderance of the evidence. Brown v. Ament (1988), 231 Mont. 158, 163, 752 P.2d 171, 174. After reviewing the entire record in this case, we hold that there is substantial credible evidence to support the Workers’ Compensation Court’s finding that the claimant failed to establish a causal connection between his current physical condition and his 1984 right elbow injury. Virtually all of the medical testimony in this case reflects that, while it was possible that prolonged work activity combined with strenuous avocational body building activity caused the claimant’s current degenerative condition, a causal connection between the claimant’s current physical problems and his 1984 right elbow injury is not present. Because no causal connection between the claimant’s current physical condition and his 1984 right elbow injury was shown, the Workers’ Compensation Court correctly concluded that the claimant is not permanently totally disabled.

In the proceedings before the Workers’ Compensation Court, the claimant requested payment of the expenses from his 1989 hospitalization for depression and for continuing psychotherapy. The responsibility of the insurer to provide medical benefits for treatment which is the result of an injury is set forth in § 39-71-704, MCA(1983), in pertinent part as follows:

“Payment of medical, hospital, and related services. (1) In addition to the compensation provided by this chapter and as an additional benefit separate and apart from compensation, the following shall be furnished:
“(a) After the happening of the injury, the employer or insurer shall furnish, without limitation as to length of time or dollar amount, reasonable services by a physician or surgeon, reasonable hospital services and medicines when needed, and such other treatment as may be approved by the division for the injuries sustained.”

Both Dr. Herbert Gray and Dr. William Stratford, psychiatrists who examined the claimant, testified that due to serious abuse as a child, and perhaps other factors, the claimant had preexisting psychological problems before his 1984 right elbow injury. In addition, both agreed that the claimant’s emotional problems may have been aggravated by his loss of physical prowess. However, there is no credible medical evidence in the record establishing a relationship between the claimant’s loss of physical prowess and his 1984 right elbow injury. Absent a causal connection between his current psychological problems and the 1984 right elbow injury, the claimant is not entitled to payment for his 1989 hospitalization for depression or continuing psychotherapy treatment.

The claimant also argues that because the insurer assumed liability in this case and paid benefits to him for over five years, the insurer waived its right to deny his claim for benefits. We disagree. Section 39-71-608, MCA (1983), provides that:

“An insurer may, after written notice to the claimant and the division, make payment of compensation benefits within 30 days of receipt of a claim for compensation without such payments being construed as an admission of liability or a waiver of any right of defense.”

It is clear that under the particular facts of this case, the insurer accepted liability for the 1984 right elbow injury and paid workers’ compensation benefits to the claimant. However, under § 39-71-608, MCA (1983), the insurer, by making such payments, did not waive its right to subsequently assert nonliability for the claimant’s condition insofar as it was not causally related to the elbow injury.

In conclusion, we hold that the Workers’ Compensation Court did not err in ruling that the claimant is not permanently totally disabled as a result of his August 22, 1984, right elbow injury and that his psychological problems are not compensably related to that injury.

Affirmed.

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


text:
    ALTON EUGENE WALKER, Petitioner, v. THE HONORABLE MAURICE R. COLBERG, Respondent.
    No. 91-427.
    Oct. 29, 1991.
    48 St.Rep. 971.
    250 Mont. 382
    822 P.2d 83..
   ORDER

On September 4,1991, petitioner, Alton Eugene Walker, filed with this Court a petition for writ of mandamus requesting that this Court issue an order directing the Honorable Maurice R. Colberg, District Judge, to issue an order granting petitioner copies of all transcripts, minutes and documents in a matter currently pending in Judge Colberg’s court in Yellowstone County.

Petitioner alleges that he filed a motion with Judge Colberg on July 26, 1991, and on August 7, 1991, after waiting over 90 days for a ruling on said motion, he wrote a letter to the Clerk of the Court of the Thirteenth Judicial District requesting information as to the status of the motion, copies of the letter were sent to Judge Colberg and to the Honorable William J. Speare, Chief Judge of the Thirteenth Judicial District. Petitioner’s letter was answered by the Clerk of the District Court noting that Judge Colberg was out of town for a week. Petitioner now alleges that it has been over 60 days since he first filed his motion for transcript, and over 20 days since he wrote requesting information as to the status of his motion, and over ten days since Judge Colberg returned to the bench and he has received no answer. He states that the only issue is whether Judge Colberg should grant his motion for transcripts and issuing an order directing the Clerk of the Thirteenth Judicial District to prepare and transmit all copies of the transcript, minutes and documents related to District Court cause No. DC-88-223.

In response to this matter, this Court on September 5, 1991, ordered a response from the County Attorney of Yellowstone County and a response from the Attorney General concerning petitioner’s motion.

The Attorney General, on behalf of Judge Colberg, moved in its response to this Court that this matter be dismissed “[o]n the grounds that the petitioner has failed to state a claim upon which relief can be granted. More particularly, petitioner Walker has failed to give any reason why this Court should interfere in a matter currently pending before the District Court of the Thirteenth Judicial District.”

Such writ of mandamus “will only issue where there has been a showing that a clear legal duty exists and there is no speedy or adequate remedy in the ordinary course of law.” State ex rel. Intake Water Co. v. Board of Natural Resources and Conservation (1982), 197 Mont. 482, 487, 645 P.2d 383, 386, cert. denied, 459 U.S. 969 (1982).

As the State’s response notes:

“Further, with respect to judicial officers, mandamus does not lie to compel a discretionary action (State ex rel. Werner v. District Court of the First Judicial District, 142 Mont. 145, 153, 382 P.2d 824, 829, (1963)), but only to compel performance of an affirmative duty,suchas one specificallyimposedbystatute. State ex rel. Brophy v. District Court of the Second Judicial District, 95 Mont. 479, 483, 27 P.2d 509, 510 (1933). Pursuant to Rule 17(a), Mont.R.App.R, the institution of original proceedings in this Court may be justified under circumstances where appeal would be inadequate or where supervision of the trial court is deemed necessary or proper. Here, any final decision by the district court on Walker’s petition for post-conviction relief is appealable to this Court under § 46-21-203, MCA. Further, supervision of the trial court is neither necessary nor proper because the motion to dismiss is currently pending before the district court.

IT IS ORDERED that the writ of mandamus requested is DENIED.

The Clerk is directed to mail a true copy hereof to the County Attorney of Yellowstone County, to the Attorney General of the State of Montana, to the Honorable Maurice R. Colberg, District Judge, and to the petitioner, personally.

DATED this 29th day of October, 1991.

s/J.A. TTTRNAGE- Chief Justice

s/ JOHN CONWAY HARRISON. Justice

s/ TERRY TRIEWEILER. Justice

s/ WTLLTAM E. HUNT SR.. Justice

s/ R..Q- McDonough, justice

s/ KARLA M. GRAY. Justice

s/ FRED J. WEBER. Justice


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMES ZACKUSE, Defendant and Appellant.
    No. 91-449.
    Decided September 18, 1991.
    250 Mont. 385.
   OPINION AND ORDER

Notice of appeal was filed in this matter on May 30, 1991. The District Court record was transmitted to the Clerk of this Court on September 11,1991. The District Judge presiding has now forwarded to the Court a copy of an August 28, 1991, letter in which defendant and appellant Zackuse asks that different counsel be appointed to represent him on appeal because his present counsel “is very ineffective and insufficient.”

A defendant’s right to assistance of counsel at public expense extends through an original appeal of right, but the accused does not have the right to counsel of his or her choice. State v. Pepperling (1978), 177 Mont. 464, 472, 582 P.2d 341, 346. It is within the discretion of the trial court to rule on a motion for substitution of counsel. State v. Long (1983), 206 Mont. 40, 45, 669 P.2d 1068, 1071.

If the trial court determines that the defendant and his counsel have a conflict so great that it results in a total lack of communication or if counsel is failing to render effective assistance, new counsel should be appointed. State v. Martz (1988), 233 Mont. 136, 139-40, 760 P.2d 65, 67; Pepperling, 582 P.2d at 346. The burden of proof is on the defendant to come forward with material facts establishing total lack of communication or ineffective assistance of counsel, and bare unsupported allegations are insufficient to justify appointment of new counsel. Long, 669 P.2d at 1071. If defendant does not meet his burden, then he has the choice of continuing with his present counsel or having counsel dismissed and proceeding pro se. Pepperling, 582 P.2d at 346.

IT IS ORDERED:

1. This matter is remanded to the District Court for the Twentieth Judicial District, Lake County, for a ruling on defendant’s request for appointment of new counsel. The District Court may, in its discretion, base its ruling upon written briefing, without the need for defendant to appear personally before the court.

2. The Clerk shall send copies of this order to defendant personally, to defendant’s counsel, to the County Attorney for Lake County, and to the office of Montana’s Attorney General, all of whom shall be granted the opportunity to brief the issues before the District Court.

3. The Clerk shall return the District Court file and one copy of the transcript to the District Court for Lake County. The Clerk shall send a copy of every document in the District Court file and one copy of the transcript to defendant personally. The third copy of the transcript shall be retained by the Clerk of this Court, and may be used by the Montana Attorney General.

DATED this 18th day of September, 1991.

s/ J.A. TURNAGE. Chief Justice

s/ JOHN CONWAY HARRISON. Justice

s/ TERRY TRIEWEILER. Justice

s/ WILLTAM E. HUNT SR.. Justice

s/ r,.c. McDonough, justice

s/ KARLA M. GRAY. Justice

s/ FRED J. WERER. Justice


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RICHARD COPE and Rosa Dickson, a/k/a Rosa Cope, Defendants and Appellants.
    No. 91-211.
    Submitted on briefs Sept. 19, 1991.
    Decided Oct. 30, 1991.
    250 Mont. 387.
    Rehearing Denied Dec. 4, 1991.
    819 P.2d 1280.

      John L. Pratt, Ask & Pratt, Roundup, for defendants and appellants.
    Marc Racicot, Atty. Gen., Matthew F. Heffron and Barbara C. Harris, Assistant Attorneys General, Helena, Vicki Krause, Mussel-shell County Attorney, Roundup, for plaintiff and respondent.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

On November 28, 1989, the State filed an Information in the District Court of the Fourteenth Judicial District in Musselshell County charging defendants Richard and Rosa Cope (a/k/a Rosa Dickson) with one count each of Possession of Dangerous Drugs and Possession of Dangerous Drugs With Intent to Sell. The State also charged Richard Cope with Felony Assault. The case was tried by the District Court without a jury on September 27-28, 1990. The court found Rosa Cope guilty of Possession of Dangerous Drugs With Intent to Sell. The court found Richard Cope guilty of both Possession of Dangerous Drugs With Intent to Sell and Felony Assault. The Copes appeal. We affirm.

The issues are:

1. Did the District Court err in denying the Copes’ motion to suppress because the judge who issued the search warrant failed to comply with the “four corners” rule?

2. Did the District Court err in denying the Copes’ motion to suppress based on the alleged overbreadth of the search warrant?

3. Did the District Court err in denying the Copes’ motion to suppress based on the State’s failure to leave the search warrant documents with the issuing judge until the search warrant was executed?

4. Did the District Court err in denying the Copes’ motion to suppress based on the State’s alleged failure to serve the search warrant on the Copes at the time of the search?

5. Did the District Court err in finding Richard Cope guilty of felony assault?

6. Did the District Court err in sentencing Richard Cope, who suffers from physical and mental disabilities, to Montana State Prison?

In September 1989, FBI agent Carl Zarndt received an anonymous tip about marijuana growing south of Roundup, Montana. Agent Zarndt, who mistakenly believed the location to be in Golden Valley County, called Golden Valley County Sheriff Fred Cougill. Sheriff Cougill told Zarndt that the location was in Musselshell County and later relayed the tip to Musselshell County Sheriff Brian Neidhardt. On September 14, 1989, Sheriff Neidhardt called Zarndt to confirm the tip and learned that the marijuana was near Fort Hall.

The next day Sheriff Neidhardt and Deputy Sheriff Rick Seidlitz rented a plane and flew over the Fort Hall area. Sheriff Neidhardt had concentrated on drug enforcement for 15 of his 18 years in law enforcement and had training and experience in aerial surveillance. Based on this training and experience, Sheriff Neidhardt had no doubt that plants he observed during the flight were marijuana plants.

After the flight, Sheriff Neidhardt checked the location he had seen from the air on a county map. He and Deputy Mike Thomas then drove out to the property and observed the marijuana plants again through binoculars. Sheriff Neidhardt noted that the plants were quite close to the residence on the property.

Sheriff Neidhardt and Deputy Thomas returned to Roundup to get a search warrant. The sheriff called the county land classifier for a legal description of the property and learned that it was tract BJ-7 on Section 6, Township 6N, Range 26E. Sheriff Neidhardt then supplied the Musselshell County Attorney’s Office with a property description for use in preparing a search warrant application.

The warrant application contained the following property description:

“Atannish colored framed dwelling located at 23 Harshman Road, by the junction of Shortcut Road and Harshman Road, more particularly described as BJ West V% of NE, SW, Section 6, Township 6, Range 26, Musselshell County, Montana.”

This is not the description Sheriff Neidhardt received from the land classifier. The land classifier’s testimony at the suppression hearing established that the discrepancy may have resulted from unfamiliarity with legal property descriptions by either Sheriff Neidhardt or the county attorney’s typist.

The warrant application also contained the following statement of probable cause:

“Sheriff Brian Neidhardt and Deputy Sheriff Rick Seidlitz flew over the Bull Mountains in Musselshell County on September 15, 1989, at approximately 12:00 o’clock noon, and observed the residence of Rosa Dickson where what appeared to be marijuana growing on the south side of the residence [sic]. At approximately 1:30 p.m. on this same date, Sheriff Brian Neidhardt drove to Shortcut Road and observed with binoculars, at approximately 200 yards, what appeared to be marijuana plants.”

Sheriff Neidhardt took this warrant application to District Court Judge Roy Rodeghiero, who placed the sheriff under oath and discussed the entire situation with him. Judge Rodeghiero issued a search warrant containing the property description reprinted above and commanding a search of all “vehicles, outbuildings, houses, and surrounding property” at that location. The sheriff did not leave the warrant application with Judge Rodeghiero.

Sheriff Neidhardt and several deputies then returned to the Dickson property to execute the search warrant. As the sheriff and Deputy Seidlitz approached, they heard loud music coming from a Jeep parked near the house. Deputy Seidlitz approached from the passenger side of the Jeep while Sheriff Neidhardt approached from the driver’s side. Richard Cope was sitting in the driver’s seat with the driver’s side door open. When Sheriff Neidhardt identified himself, Cope reached down to his right, picked up a pistol, and began to swing it counterclockwise across his body toward Neidhardt. The sheriff knocked the pistol from Cope’s hand while it was still pointing toward the front of the Jeep.

The authorities then approached the house and ordered everyone out. Rosa Cope and Dr. James Cope, Richard’s father, came out. Sheriff Neidhardt gave Rosa Cope a copy of the search warrant. The officers handcuffed Richard, Rosa, and Dr. Cope and then proceeded to search the property. The search produced a number of weapons, some drug paraphernalia, and approximately 35 pounds of marijuana. Dr. Cope was neither arrested nor charged.

On August 23, 1990, the Copes moved to suppress the search results. The Copes disqualified Judge Rodeghiero because they wanted to have him testify at their suppression hearing. A suppression hearing was held on September 11, 1990, and the motion to suppress was denied on September 13, 1990.

The Copes were found guilty of Possession With Intent to Sell after a trial on September 27-28,1990. Richard Cope was also convicted of Felony Assault. The court sentenced Rosa Cope to five years at Montana State Prison with all but 30 days in the county jail suspended on conditions. The court sentenced Richard Cope to ten years for Possession With Intent to Sell, and ten years for Felony Assault, with the sentences to run concurrently, and with eight years suspended on conditions. The court added a consecutive two-year sentence enhancement to Richard Cope’s sentence for his use of a dangerous weapon in the assault.

I

Did the District Court err in denying the Copes’ motion to suppress because the judge who issued the search warrant failed to comply with the “four corners” rule?

The Copes cite a long line of Montana cases, including State v. Van Voast (1991), 247 Mont. 194, 805 P.2d 1380, 48 St.Rep. 160, for the proposition that the issuing judge cannot go beyond the “four corners” of the warrant application to find probable cause to search a suspect’s property. The Copes claim the probable cause statement in the warrant application was insufficient and that the issuing judge must have gone beyond the application to find probable cause. Specifically, they argue that the warrant application did not allege that Sheriff Neidhardt had any training or experience in marijuana identification. The Copes conclude that Judge Rodeghiero could not find probable cause without finding that his affiant could identify marijuana on sight and that the warrant application was fatally flawed without this information.

We disagree. The cases relied on by the Copes involve tips by informants which were relied upon to establish probable cause. See, e.g., State v. Hendrickson (1985), 217 Mont. 1, 701 P.2d 1368. This case does not require the usual analysis involving informant tips because in this case a law enforcement officer acting in his official capacity personally observed marijuana plants on two separate occasions. The same officer signed the warrant application and swore to its accuracy in front of the issuing judge. Questions of informant reliability and credibility are irrelevant because the county sheriff does not require the same accreditation as an unknown informant. We hold that under the circumstances of this case an allegation of personal observation by a law enforcement officer was sufficient to establish probable cause.

II

Did the District Court err in denying the Copes’ motion to suppress based on the alleged overbreadth of the search warrant?

The Copes argue that the District Court should have suppressed the search results because the search warrant incorrectly described a much larger piece of land than the tract on which they lived. The property description should have read “Tract B J-7, WV2, of NE SW, Section 6.” This would have directed the authorities to the west half of the northeast quarter of the southwest quarter-section of Section 6. Instead, the property description read “B J WestV2 of NE, SW, Section 6.” A literal reading of this erroneous description would have led the authorities to the west half of the northeast quarter-section and all of the southeast quarter-section of Section 6. The Copes believe this error merits suppression.

In State v. Ballew (1973), 163 Mont. 257, 261, 516 P.2d 1159, 1161-62, we said:

“The warrant must designate the premises to be searched and contain a description so specific and accurate as to avoid any unnecessary or unauthorized invasion of the right of privacy. To this end it should identify the property in such manner as to leave to the officer no discretion as to the premises to be searched.” [Emphasis in original.]

(Quoting State ex rel. King v. Dist. Court (1924), 70 Mont. 191, 198, 224 P. 862, 865). In Ballew, we found that the warrant was overly broad because it directed the authorities to search two cabins located in a particular area that in fact contained three cabins. Ballew, 516 P.2d at 1162.

This case does not present that problem. Here, notwithstanding the erroneous property description as to tract number and section location, the warrant directed the authorities to “23 Harshman Road, by the junction of Shortcut Road and Harshman Road.” There was only one tract of land at 23 Harshman Road. The authorities had no discretion as to which tract to search, and the Copes do not allege that any of the evidence offered against them was recovered from beyond the bounds of this tract. Nor do they deny living at “23 Harshman Road.” We hold that the search warrant was not overly broad.

Ill

Did the District Court err in denying the Copes’ motion to suppress based on the State’s failure to leave the search warrant documents with the issuing judge until the search warrant was executed?

Section 46-5-204, MCA (1989), provided:

“The application on which the warrant is issued shall be retained by the judge but need not be filed with the clerk of the court or with the court, if there is no clerk, until the warrant has been executed or has been returned ‘not executed.’ ”

The authorities did not leave the warrant application with Judge Rodeghiero, and they did not file it with the clerk of court until September 21, six days after they executed the search warrant. The Copes argue that this delay merits suppression of the search results.

The State responds that the delay in filing the warrant application did not result in substantial prejudice to the Copes. Section 46-5-103(3), MCA (1989), provided that “[n]o search and seizure, whether with or without warrant, shall be held to be illegal as to a defendant if... any irregularities in the proceedings do not affect the substantial rights of the accused.” (Emphasis added.) The State notes that the purpose of § 46-5-204, MCA (1989), is to protect “the person being searched from harmful publicity.” Section 46-5-204, MCA Annotations, Commission Comments. The Copes’ interest in protection from harmful publicity was at most merely collateral to the substantial development of their defense. We do not believe this oversight by Sheriff Neidhardt affected their substantial rights.

However, the Copes cite State v. Tropf (1975), 166 Mont. 79, 530 P.2d 1158, for the proposition that failure to leave the warrant application with the issuing judge is “prejudicial error.” We disagree with their interpretation of our holding in that case. The defendant in Tropf challenged the search warrant on the grounds that: (1) the issuing police judge lacked the necessary jurisdiction; and (2) the authorities did not leave the application with the issuing judge. Tropf, 530 P.2d at 1160.

We held that police judges lacked jurisdiction to issue search warrants and that the warrant was therefore void. Tropf, 530 P.2d at 1161. At that point all subsequent discussion of the warrant paperwork became dicta. We noted perfunctorily and in passing that the district court in that case did not err in condemning the State’s failure to leave the warrant application with the issuing judge. We did not consider the impact of the “substantial rights” requirement of § 46-5-103(3), MCA (1989) (then codified as § 95-717, R.C.M 1947). The words “substantial” and “prejudicial” do not even appear in our discussion of the issue.

We have never since relied upon the dicta in Tropf to suppress search results because the authorities failed to leave the warrant application in the proper place. We decline to do so now. We hold that the District Court did not err in denying the Copes’ motion to suppress based on Sheriff Neidhardt’s failure to leave the warrant application with Judge Rodeghiero.

IV

Did the District Court err in denying the Copes’ motion to suppress based on the State’s alleged failure to serve the search warrant on the Copes at the time of the search?

Section 46-5-206, MCA (1989), required the authorities executing a search warrant to exhibit it and leave a duplicate copy on the property. The Copes and their father all deny either seeing an original warrant or receiving a duplicate copy. They conclude that this justifies suppression of the search results. We note that they cite no cases so holding.

Furthermore, the evidence at the suppression hearing supports an inference that Sheriff Neidhardt did exhibit the warrant and leave an original on the property. Sheriff Neidhardt testified as follows:

“Q Where did you put the copy?
“A I don’t recall if I — obviously I might have — if I gave it to her, I had to put it in her hand, but I showed it to her. I showed her the original, and I had a copy there.
“Q What did you do with the copy?
“A I would have handed a copy to her then.
“Q Do you recall putting it in her hand?
“A I would have had to. I don’t recall exactly, but I would have had to; because I gave her a copy at that time. I know I wouldn’t have thrown it on the ground, so I obviously put it in her hand.”

This testimony is far from unimpeachable, but perfection is not required. The Copes bore the burden of proof on this issue. Section 46-13-302(4), MCA (1989). In finding that the Copes did not discharge that burden, the District Court said:

“Sheriff Neidhardt testified that he placed a copy of the Search Warrant in Rosa Dickson’s hand after showing her the original. He is well trained and experienced in these matters and had or has no reason to lie about it. The Defendants’ testimony on the point is, however, more suspect, whether from the motive of personal interest or from the confusion and excitement of the event. The Court must resolve contradictory testimony and does so, accepting the Sheriff’s testimony as true.”

In the past, we have used two different standards of review for evidence presented at suppression hearings.

At first, we expressed the standard as whether the trial court’s findings were “clearly against the weight of the evidence.” In re R.P.S. (1980), 188 Mont. 317, 613 P.2d 999; State v. Blakney (1979), 185 Mont. 470, 605 P.2d 1093; State v. Lenon (1977), 174 Mont. 264, 570 P.2d 901; State v. Smith (1974), 164 Mont. 334, 523 P.2d 1395; State v. Chappel (1967), 149 Mont. 114, 423 P.2d 47; State v. White (1965), 146 Mont. 226, 405 P.2d 761.

Our more recent decisions express the standard as whether the record contains “substantial credible evidence” to support the trial court’s findings. State v. Kim (1989), 239 Mont. 189, 779 P.2d 512; State v. Beach (1985), 217 Mont. 132, 705 P.2d 94; State v. Camitsch (1981), [192 Mont. 124,] 626 P.2d 1250, 38 St.Rep. 563; State v. Allies (Allies II) (1980), 190 Mont. 475, 621 P.2d 1080; State v. Davison (1980), 188 Mont. 432, 614 P.2d 489; State v. Allies (Allies I) (1979), 186 Mont. 99, 606 P.2d 1043.

In one case, we cited both standards. State v. Grimestead (1979), 183 Mont. 29, 598 P.2d 198.

In Walden v. State (Mont. 1991), [250 Mont. 132,] 818 P.2d 1190, 48 St.Rep. 893, we considered the appropriate standard of review for judge-made findings of fact in civil cases. We cited Rule 52(a), M.R.Civ.P., and held that we will not overturn the trial judge’s findings of fact unless they are “clearly erroneous.” Walden, 250 Mont. 132,] 818 P.2d at_, 48 St.Rep. at 896. The issue in Walden was whether the trial court had improperly refused a challenge for cause during jury selection. We adopted the “clearly erroneous” standard of review, even though we noted that challenges for cause do not fit squarely within the literal parameters of Rule 52(a). Walden, [250 Mont. 132,] 818 P.2d at_, 48 St.Rep. at 896. Our purpose in that case was to begin clarifying the standards of review applicable to judge-made findings of fact and to settle on one expression of the standard that would be applicable to all future findings of fact.

We extend our rationale in Walden to the District Court’s findings of fact regarding the suppression hearing in the instant case. We see no reason to maintain a different standard of review in criminal cases than we apply to civil cases, as long as we continue to require the State to prove each substantive element of the criminal offense beyond a reasonable doubt at trial on the merits. In fact, the “clearly erroneous” formulation is the one applied to suppression hearings by the Ninth Circuit. See U.S. v. Elliott (9th Cir. 1990), 893 F.2d 220. Therefore, from this point forward, we will not overturn a District Court’s findings of fact regarding suppression hearing evidence unless those findings are clearly erroneous.

Upon reviewing the evidence presented at the suppression hearing in this case, we are unable to say the District Court’s findings of fact regarding that evidence are clearly erroneous. We hold that the District Court did not err in finding that Sheriff Neidhardt exhibited the original warrant and left a duplicate copy on the Copes’ premises.

V

Did the District Court err in finding Richard Cope guilty of felony assault?

Section 45-5-202(2)(b), MCA (1989), provided:

“A person commits the offense of felony assault if he purposely or knowingly causes ... reasonable apprehension of serious bodily injury in another by use of a weapon ... .” [Emphasis added.]

Richard Cope argues that he was trying to surrender his pistol to Sheriff Neidhardt and that he did not intend to cause apprehension of serious bodily harm. He concludes that the District Court erred in finding that he possessed the necessary mental state for felony assault.

Cope has confused the mental states necessary under the 1973 Criminal Code. Section 45-2-101(33), MCA (1989), provided:

“[A] person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware of his conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when he is aware that it is highly probable that such result will be caused by his conduct. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence. Equivalent terms such as ‘knowing” or ‘with knowledge’ have the same meaning.” [Emphasis added.]

Thus, it was not necessary for Cope to intend to cause apprehension. He committed the offense if he was aware that his conduct would probably cause that result.

The record contains evidence from which the District Court could infer that Cope acted knowingly. He reached down to his right, picked up a pistol, and began swinging it toward Sheriff Neidhardt. He testified that he held it by only two fingers, but Sheriff Neidhardt and Deputy Seidlitz testified that he had his right hand around the grip. The District Court found Neidhardt and Seidlitz more credible and chose to believe their testimony rather than Cope’s.

Cope also argues that any apprehension experienced by Sheriff Neidhardt was unreasonable because Cope never pointed the pistol directly at the sheriff. Cope cites § 45-5-201(l)(d), MCA(1989), which raises a presumption of intent to cause apprehension when one person points a firearm at another. We do not believe that the converse is necessarily true. It is unreasonable to infer that the necessary state of mind did not exist simply because Cope did not succeed in pointing the firearm at his victim.

Sheriff Neidhardt knocked the pistol out of Cope’s hand while it was pointing toward the front of the Jeep. Cope cannot now take advantage of Neidhardt’s quick reflexes and argue that he never had a chance to point the gun at his victim. Neidhardt testified that he thought Cope would shoot him. Deputy Seidlitz, who was “covering” the incident, perceived Cope’s act as threatening and actually began tightening the slack in his rifle trigger. Seidlitz testified that this was the closest he had come to shooting a suspect in his entire law enforcement career.

In the past, we have expressed the standard of review on criminal bench trials as whether there is “substantial evidence to support the defendant’s guilt beyond a reasonable doubt.” State v. Duncan (1979), 181 Mont. 382, 387, 593 P.2d 1026, 1029-30; State v. Longacre (1975), 168 Mont. 311, 313, 542 P.2d 1221, 1222. For the reasons enumerated in Part IV of this opinion, we believe that the correct standard of review to be applied to all judge-made findings of fact is whether they are “clearly erroneous.” Based on our review of the record in this case, we do not believe that the District Court’s findings that Cope acted knowingly and that Sheriff Neidhardt reasonably apprehended serious bodily harm are clearly erroneous. Therefore, we hold that the record contains sufficient evidence to support Richard Cope’s conviction for felony assault.

VI

Did the District Court err in sentencing Richard Cope, who suffers from physical and mental disabilities, to Montana State Prison?

Richard Cope argues that prison is an inappropriate environment for him because he suffers from certain physical and mental disabilities. Several years ago, Cope suffered severe head injuries in a motorcycle accident. He now has an acrylic plate in his skull and suffers from an organic personality disorder attributable partly to the injury and partly to years of substance abuse. He presented medical testimony at his sentencing hearing that prison would be dangerous for him because the plate in his skull renders him easily susceptible to injury and because his personality disorder will make him susceptible to manipulation by other inmates.

We believe this is a question of sentencing equity, rather than sentencing legality. We review sentences for legality only. State v. Hurlbert (1988), 232 Mont. 115, 756 P.2d 1110. The standard of review on sentence legality is whether the district court abused its discretion. State v. Lloyd (1984), 208 Mont. 195, 199, 676 P.2d 229, 231. We find no such abuse here, since Cope’s sentence is well within the statutory limits. Questions of sentencing equity, on the other hand, are to be presented to the Sentence Review Division. Lloyd, 676 P.2d at 231. If Cope wishes to pursue his equity argument, he may do so in the Sentence Review Division.

Affirmed.

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