author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. SCOTT DALE MILLER, Defendant and Appellant.
    No. 97-212.
    Submitted on Briefs December 18, 1997.
    Decided July 16, 1998.
    1998 MT 177.
    55 St.Rep. 719.
    290 Mont. 97.
    966 P.2d 721.

      For Appellant: Michael F. Bailey, Doreen D. Antenor, Bailey & Antenor, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, C. Mark Fowler, Assistant Attorney General, Helena; Robert L. “Dusty” Deschamps, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶ 1 Scott Dale Miller (Appellant) appeals from a jury verdict, judgment, and sentence of the Fourth Judicial District Court, Missoula County, convicting him of mitigated deliberate homicide. We affirm.

¶2 We restate the issues as follows:

¶3 1. Did the District Court err in denying Appellant’s motions for dismissal and entry of judgment as a matter of law on the basis of insufficient evidence?

¶4 2. Was Appellant denied a fair trial as a result of alleged improper comments made by the prosecutor during his closing argument?

¶5 3. Did the District Court err in requiring Appellant to register as a violent offender without issuing findings concerning Appellant’s violent offender status, and without providing Appellant a hearing to present contradictory evidence regarding his status?

BACKGROUND

¶6 This case arose out of the death of James Mitchell (Mitchell). During the morning hours of September 16, 1995, Mitchell, his wife Wendy, Brent Bovee (Bovee), and Pamela Songer (Songer) began drinking alcohol. At about noon, having consumed a fifth of liquor, Mitchell and Bovee decided to go to Appellant’s home to borrow money for more alcohol. The Mitchells, Bovee, Songer, and Appellant all lived in the same trailer court. Appellant and the Mitchells had known each other for five years. At Appellant’s home, Appellant, Mitchell, and Bovee drank beer for about an hour, and then Wendy and Songer arrived. Mitchell and Bovee then left to buy more alcohol. Appellant stayed behind and continued drinking. When Mitchell and Bovee returned an hour later, they appeared more intoxicated than when they had left. Appellant, the Mitchells, Bovee, and Songer resumed drinking together.

¶7 Later that afternoon, Appellant and Mitchell left in Appellant’s car. Soon thereafter, the two women left, but Bovee remained at Appellant’s home sleeping on the couch. Appellant and Mitchell returned at about 5:00 p.m. and Wendy returned 15 minutes later. Appellant sat in a chair and Mitchell sat on the couch. Bovee was passed out on the couch. Appellant then cleaned his pipe and began smoking marijuana. Mitchell leaned over, touched Appellant on the arm and asked Appellant for the pipe. Appellant responded, “Don’t touch me.” Mitchell pressed Appellant again for the pipe and asked him what was the matter. Appellant again told Mitchell to quit touching him. Appellant “went ballistic” and an argument erupted between the two. Appellant ordered Mitchell to get out of his house. Mitchell refused to leave. Appellant went to his bedroom and Mitchell followed apparently wanting to know why Appellant was so upset. Wendy remained in the living room.

¶8 While in the bedroom, Appellant obtained a pistol. Wendy heard scuffling in the hallway. Appellant and Mitchell ended up in the bathroom where the only means of entry and exit was the bathroom door. Wendy did not know who entered the bathroom first, but evidence suggested that Mitchell forced open the bathroom door. Wendy then went to the bathroom to convince Mitchell to leave. Several times Wendy heard Appellant order Mitchell to “get out of here.” She heard Appellant exclaim, “If you don’t get out of here, I’m going to shoot you,” and “I’m going to fire a warning shot.” Wendy testified that Appellant did not say these words in a way that would suggest he was begging Mitchell to leave him alone. Wendy then heard the warning shot. Evidence showed that Appellant fired the warning shot from the back wall of the bathroom, where the bathtub was located, toward the door. Again, Wendy heard Appellant tell Mitchell to leave or he would shoot Mitchell in the foot. Wendy heard the gun fire again. Appellant had shot Mitchell in the mouth at close range, killing him instantly.

¶9 After the shot was fired, Appellant left the bathroom and told Wendy to telephone 9-1-1. Appellant went next door where his mother, Rose Miller (Rose), lived. Rose testified that Appellant was upset and that he stated to her, “I couldn’t let him keep hurting me ... why did he make me do this?” He also stated that he didn’t know where exactly Mitchell was shot. Rose telephoned 9-1-1 and reported the incident. Appellant spoke with the 9-1-1 operator and mentioned being beaten. Officers soon arrived at Rose’s house and took Appellant into custody. The officers administered a blood test on Appellant and the state forensic pathologist administered a blood test on Mitchell’s body. Appellant’s blood sample indicated a blood alcohol content (BAC) of .20 and presence of the drug tetrahydrocannabinol (THC). Mitchell’s blood sample indicated a BAC of .25.

¶10 A trial by jury was held October 29-31,1996. Wendy testified that Mitchell and Appellant experienced physical disabilities. Mitchell once had a broken neck, he had undergone three separate surgeries for herniated discs in his back, and he was about to have reconstructive surgery on his knee. Appellant had “a problem with his shoulder.” Appellant was a sawyer by trade. Wendy testified that Mitchell was not working and was collecting social security disability benefits. She further testified that both Mitchell and Appellant drank heavily and smoked marijuana occasionally. Wendy testified that Mitchell and Appellant had argued several times in the years they had known each other, but that only one of these arguments resulted in a physical altercation. She further testified that in the months preceding the date of Mitchell’s death, the friendship between Mitchell and Appellant had changed. She stated that Appellant was angry at Mitchell for “hanging out” with his ex-wife. Wendy admitted that she once had an extramarital affair with Appellant. On the day of the shooting, Appellant told Wendy he was having a bad day and everything was going wrong. Appellant mentioned that his saw was broken and that he had a problem with his ex-wife.

¶ 11 Rose testified that although her son and Mitchell got along well, she thought Mitchell was argumentative and combative, and she did not welcome Mitchell in her home. Rose stated that Mitchell’s reputation among residents of the trailer court was “not good” and that most residents would have nothing to do with him.

¶12 Songer testified that Mitchell had fought with her boyfriend and brother-in-law. She testified that Appellant’s usual disposition when drunk was that he got mouthy and wanted to “roll around in the dirt.” Songer stated that in a prior argument at Appellant’s home, Appellant and Mitchell were engaged in pushing and shoving but Mitchell left upon Appellant’s request. Songer further testified that during the afternoon on the date of Mitchell’s death, Appellant and Mitchell appeared to be getting along well.

¶13 Nadine Jensen (Jensen), a resident of the same trailer court and an employee at a local bar often frequented by Appellant and Mitchell, testified that she had known Appellant and Mitchell for 8 or 9 years. She stated that on several occasions she heard the two men arguing outside her home at night. Jensen recounted one day, long before the incident at issue, when Appellant was drunk, approached her on her porch, mentioned the Mitchells, and briefly stated he should just shoot Mitchell. However, Jensen stated that Appellant’s demeanor at the time he made the statement was such that she thought he was joking. Jensen testified that the Mitchells often picked fights at the bar and that they were no longer welcome there. She testified that she never had any problems with Appellant while at the bar.

¶14 Sheriff’s Deputy Patrick Turner (Turner), one of the first officers to respond to the 9-1-1 call, transported Appellant to the police station. Turner testified that Appellant was cooperative, that Appellant communicated effectively, that he understood every word Appellant was saying, and that Appellant followed instructions completely. In booking Appellant, Turner took his measurements and reported that Appellant was six feet two inches tall and weighed 190 pounds.

¶15 Lynn Kurtz (Kurtz), a forensic scientist with the state crime lab, opined that Appellant’s BAC of .20 impaired Appellant’s judgment and reasoning functions, and created an unsafe condition for handling a firearm.

¶16 Doctor Gary Dale (Dr. Dale), a pathologist with the state forensic science division, performed the autopsy. Dr. Dale testified that Appellant’s gun was in direct contact with Mitchell’s skin when it discharged. The barrel of the gun was pointed at an angle of 55 degrees so that the primary direction of the bullet was upwards relative to the position of Mitchell’s body. Dr. Dale stated that the gunshot wound was in an unusual location for a homicide. Appellant’s attorney asked the following question of Dr. Dale:

Given the number of homicide victims that you have autopsied and the angle to the path of the bullet, is it not conceivable that the deceased, in driving himself into the upper body of the Defendant and the Defendant raising his hands to protect himself from blows, with the gun in one of those hands, that the deceased drove his face into the gun at the time of the discharge of the firearm?

Dr. Dale responded:

Based on the angle? Again, the best way to answer that is just using the — that angle. If you can create a scenario where the firearm discharges at that angle, it’s possible.

Dr. Dale measured Mitchell’s body and testified that Mitchell was six feet four and one half inches tall and weighed 202 pounds.

¶ 17 Sheriff’s Detective Scott McDonald (McDonald) was assigned to investigate the crime scene. McDonald testified that he found broken glass in the living room but that it was possible the broken glass may have predated the shooting. He testified that the bathroom door was broken at the hinges but that Wendy told him she “had been in the house before and knew the door was kind of that way.” McDonald testified that Mitchell’s blood and cap were found in the bathtub. McDonald also testified that firing the type of gun used by Appellant required only slight pressure, two and one half to three pounds. McDonald testified that during his interview with Appellant, Appellant stated he had been injured and complained of a sore shoulder from being pushed into a wall by Mitchell. Photographs of Appellant’s shoulders were entered into evidence. McDonald acknowledged that Appellant’s right shoulder was disproportionate in size from his left, but stated he did not know whether this condition stemmed from a pre-existing injury. Wendy had earlier testified that Appellant suffered from a disability, “a problem with his shoulder.”

¶18 Appellant neither testified nor presented any witnesses to testify on his behalf. However, based on his attorney’s opening statement, closing argument, and cross-examination of the State’s witnesses, it was apparent that Appellant was asserting justifiable use of force as an affirmative defense. Appellant claimed he was trapped in the bathroom with no means of escape, that he fired a warning shot, that Mitchell lunged at him, and that in order to protect himself from serious bodily harm, he raised his hands at which point Mitchell drove his face into the barrel of the gun and it discharged.

¶19 At the conclusion of the State’s case, Appellant moved the court for dismissal of the charge on grounds that the State had not proven its case. That motion was denied. Appellant then informed the court that he would call no witnesses to testify on his behalf and rested his case. The jury returned a verdict finding Appellant guilty of mitigated deliberate homicide after which Appellant moved the court for judgment as a matter of law. The motion was denied. Appellant appealed to this Court. Additional facts will be provided as necessary to dispose of the issues raised.

DISCUSSION

Issue 1

¶20 Did the District Court err in denying Appellant’s motions for dismissal and entry of judgment as a matter of law on the basis of insufficient evidence?

¶21 It is within the sound discretion of the District Court whether to dismiss an action at the close of the State’s case for insufficient evidence. Section 46-16-403, MCA. We will not disturb the District Court’s ruling unless Appellant shows an abuse of discretion. State v. Miller (1988), 231 Mont. 497, 509, 757 P.2d 1275, 1282. We have held that a motion to dismiss for insufficient evidence “should be granted only where there is no evidence upon which a trier of fact could base a verdict.” Miller, 231 Mont. at 509, 757 P.2d at 1282 (citations omitted)(emphasis in original). This Court reviews the sufficiency of the evidence to determine whether, upon viewing the evidence in the fight most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Miller, 231 Mont. at 509, 757 P.2d at 1283.

¶22 Appellant was charged and convicted of mitigated deliberate homicide pursuant to § 45-5-103(1), MCA. That statute provides:

A person commits the offense of mitigated deliberate homicide when the person purposely or knowingly causes the death of another human being but does so under the influence of extreme mental or emotional distress for which there is reasonable explanation or excuse. The reasonableness of the explanation or excuse must be determined from the viewpoint of a reasonable person in the actor’s situation.

“Purposely” is the most culpable mental state and implies an objective or design to engage in certain conduct, although not particularly toward some result. Sections 45-2-101(63) and -201(2), MCA; Compiler’s Comments to § 45-5-102, MCA, p.163. “Knowingly” refers to a state of mind in which a person acts, while not toward a certain objective, at least with full knowledge of relevant facts and circumstances. Sections 45-2-101(34) and -201(2), MCA; Compiler’s Comments to § 45-5-102, MCA, p.163. A finding of “extreme emotional or mental distress for which there is reasonable explanation or excuse” will not lie where the only mitigating circumstances asserted are the defendant’s anger and intoxication. State v. Williams (1993), 262 Mont. 530, 541, 866 P.2d 1099, 1106 (citation omitted).

¶23 Justifiable use of force, or self-defense, is a complete affirmative defense to mitigated deliberate homicide. Section 45-3-115, MCA. Although the State retains the burden of proving the underlying offense beyond a reasonable doubt, the defendant who raises justifiable use of force as an affirmative defense assumes the “burden of producing sufficient evidence on the issues to raise a reasonable doubt of his guilt...” State v. Daniels (1984), 210 Mont. 1, 16, 682 P. 2d 173, 180-81. To establish justifiable use of force, Montana law requires that a defendant show that: (1) he was not the aggressor; (2) he reasonably believed he was in imminent danger of unlawful harm; and (3) he used reasonable force necessary to defend himself. Sections 45-3-102 and -105, MCA; State v. DeMers (1988), 234 Mont. 273, 280, 762 P.2d 860, 865.

¶24 Appellant does not contest that he purposely or knowingly caused the death of Mitchell. However, Appellant contends that he acted in self-defense. Appellant argues that he was not the aggressor; that he reasonably believed he was in imminent danger of unlawful harm; that he used reasonable force necessary to defend himself; and that given the facts and circumstances surrounding the shooting, no rational trier of fact could have concluded otherwise. The State counters that while Appellant presents one version of the events, the evidence and testimony presented at trial clearly support another version of the events, that Appellant committed mitigated deliberate homicide. We agree with the State.

¶25 In State v. Bower (1992), 254 Mont. 1, 8, 833 P.2d 1106, 1111, we stated:

The fact that the defendant’s testimony conflicted with that of the State’s witnesses does not, by itself, render the evidence insufficient to support his conviction. The weight of the evidence and the credibility of the witnesses are exclusively within the province of the trier of fact; when the evidence conflicts, the trier of fact determines which shall prevail.

It is the jury’s prerogative to accept or reject a defendant’s claim of self-defense. State v. Crazy Boy (1988), 232 Mont. 398, 401, 757 P.2d 341, 343. Here, the jury weighed the evidence, assessed the credibility of witnesses, and found that the State’s version of the incident was more credible than Appellant’s. Such a finding is supported by the evidence.

¶26 The State produced sufficient evidence from which a jury could find that Appellant shot Mitchell under extreme mental or emotional stress. Appellant’s usual disposition when drunk was that he became mouthy and wanted to “roll around in the dirt,” yet on the day of the shooting, when Mitchell touched Appellant’s arm, Appellant “went ballistic” and ordered Mitchell out of the house. Appellant’s and Mitchell’s arguments were usually resolved nonviolently, yet on the day of the shooting, Appellant got a pistol from his bedroom. After the shooting, Appellant told his mother, “I couldn’t let him keep hurting me ... why did he make me do this?”

¶27 The State also produced sufficient evidence from which a jury could find reasonable explanation or excuse for Appellant’s extreme mental or emotional stress. Wendy testified that the friendship between Appellant and Mitchell had recently become strained due in part to her admitted love affair with Appellant and the fact that Mitchell was spending time with Appellant’s ex-wife. On the date of Mitchell’s death, Appellant told Wendy he was having a bad day because of problems with his ex-wife and his broken saw. Mitchell’s usual disposition when drunk was that he was argumentative and combative. In a prior argument at Appellant’s home that involved pushing and shoving, Mitchell left Appellant’s home upon request. However, on the day of the shooting, Mitchell refused to leave upon Appellant’s request and instead followed him into the bedroom and bathroom. Evidence showed that Appellant’s level of intoxication impaired his judgment and reasoning. Given these circumstances, the jury was justified in finding Appellant guilty of mitigated deliberate homicide because there existed other mitigating circumstances besides Appellant’s intoxication and fear of being assaulted.

¶28 We next consider Appellant’s contention that he produced sufficient evidence from which a jury could find that he acted in self-defense. Whether a defendant meets the requirements necessary to support his theory of self-defense is a question of fact for the jury. State v. Crabb (1988), 232 Mont. 170, 174, 756 P.2d 1120, 1123. We have held that the degree of force a person uses to defend himself must be commensurate with the threat of harm the person faces. See State v. Stone (1994), 266 Mont. 345, 347, 880 P.2d 1296, 1298. A person is justified in the use of deadly force “only if he reasonably believes that such force is necessary to prevent imminent death or imminent bodily harm to himself or another or to prevent the commission of a forcible felony.” Section 45-3-102, MCA. Deadly force is “force likely to cause death or serious bodily harm,” and includes the firing of a firearm in the direction of a person, even though no purpose exists to kill or inflict serious bodily harm. Section 45-3-101(1), MCA. A “felony” is an offense punishable by either death or imprisonment exceeding one year, and a “forcible felony” is a felony involving the use or threat of physical force or violence against any individual. Section 45-2-101(22) and (23), MCA. A person’s belief of imminent death or imminent serious bodily harm may be reasonable even if it is mistaken. State v. Bashor (1980), 188 Mont. 397, 425, 614 P.2d 470, 485-86.

¶29 The record shows that Mitchell weighed only twelve pounds more and measured only two and one half inches taller than Appellant. Mitchell was unarmed and suffered several physical disabilities. When Appellant told Mitchell to leave or he would shoot, Appellant did not say these words in a way that would suggest, as Appellant claims, that he was begging Mitchell to leave him alone. Although Appellant claimed the loose hinges on the bathroom door showed that Mitchell forced it open in pursuit of Appellant, Wendy told Officer McDonald that the “door was kind of that way.” Although Mitchell had an argumentative and combative disposition, Appellant and Mitchell usually resolved their arguments nonviolently. Upon these facts, any rational trier of fact could have found that Mitchell would not or could not have carried out a threat to kill or seriously injure Appellant, and that Appellant’s belief of imminent death or serious bodily harm, or his belief that a forcible felony was about to be committed, was unreasonable. The absence of a reasonable belief as to imminent death or serious bodily harm renders Appellant’s use of deadly force unreasonable. Section 45-3-102, MCA.

¶30 We hold there existed sufficient evidence from which a jury could find that Appellant shot Mitchell under extreme mental or emotional distress for which there is reasonable explanation or excuse, and that Appellant was not justified in the use of deadly force against Mitchell. We determine the District Court did not abuse its discretion in denying Appellant’s motions to dismiss and for judgment as a matter of law on the basis of insufficient evidence.

Issue 2

¶31 Was Appellant denied a fair trial as a result of alleged improper comments made by the prosecutor during his closing argument?

¶32 During his rebuttal closing argument, the prosecutor made the following statement to the jury:

Like [Dr.] Gary Dale said, there’s any number of possible ways you could arrange these bodies and have things come out the way they did. One thing we do know, there’s no blood on the Defendant. This guy is looming over the top of him, how come the Defendant wasn’t covered with blood?

Appellant objected to this statement claiming that “this was not introduced at trial” and “there’s evidence to the other effect,” but did not request the court to admonish the jury or give the jury a cautionary instruction. The court overruled the objection.

¶33 Appellant alleges prosecutorial misconduct in that the prosecutor not only improperly commented on facts not in evidence, but mischaracterized those facts. As support for his allegation, Appellant points to defendant’s Exhibit D, a forensic science division examination report describing evidence that had undergone testing by the forensic serologist. Exhibit D indicated that the serologist found blood stains on Appellant’s blue jeans, but that the results obtained for genetic typing of these blood stains were inconclusive. Appellant chose not to offer Exhibit D into evidence. On appeal, Appellant attached Exhibit D to his brief as proof that the prosecutor improperly commented on facts not in evidence. Without citation to authority, Appellant argues that the prosecutor’s statement was highly prejudicial and amounted to a denial of his right to a fair trial.

¶34 Appellant’s claim of prosecutorial misconduct is not reviewable. Appellant’s action in placing before this Court a document that was not admitted into evidence and which is not part of the record violates Rule 9, M.R.App.R It is well-established that this Court will not consider any evidence not contained in the record on appeal. Johnson v. Killingsworth (1995), 271 Mont. 1, 3, 894 P.2d 272, 273. The prosecutor’s statement to the effect that “[we know] there’s no blood on the defendant” may have been an exaggerated inference based on the state of the record before the District Court. However, based on the record before us, it is impossible to conclude that the prosecutor’s statement was an outright misrepresentation of fact. We cannot consider Appellant’s argument relating to prosecutorial misconduct.

¶35 In addition to the above claim of prosecutorial misconduct, Appellant alleges the State engaged in several other acts of prosecutorial misconduct including misstatements of fact and law; impermissible appeals to law, order, and community safety; and inflammatory remarks designed to appeal to the jury’s emotions. Appellant did not make timely objections to these alleged errors. Appellant concedes that § 46-20-104(2), MCA, precludes this Court from reviewing an alleged error unless the complaining party made a timely objection at trial or meets one of the exceptions outlined in Montana’s plain error statute, § 46-20-701(2), MCA. State v. Swoboda (1996), 276 Mont. 479, 483-84, 918 P.2d 296, 299. Appellant also concedes that § 46-20-701(2), MCA, is inapplicable as he does not meet any of the exceptions set forth therein. However, Appellant urges this Court to invoke its discretionary power of common law plain error review claiming that the alleged prosecutorial misconduct denied him his fundamental right to due process.

¶36 We clarified the common law plain error doctrine in State v. Finley (1996), 276 Mont. 126, 915 P.2d 208. We held:

[T]his Court may discretionarily review claimed errors that implicate a criminal defendant’s fundamental constitutional rights, even if no contemporaneous objection is made and notwithstanding the inapplicability of the § 46-20-701(2), MCA, criteria, where failing to review the claimed error at issue may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental farness of the trial or proceedings, or may compromise the integrity of the judicial process.

Finley, 276 Mont. at 137, 915 P.2d at 215. In determining the applicability of the common law plain error doctrine, we consider the totality of circumstances of each case. Finley, 276 Mont. at 134, 138, 915 P.2d at 213. However, we note that the common law plain error rule is reserved for “exceptional cases” and is to be used sparingly. State v. Sullivan (1996), 280 Mont. 25, 31, 927 P.2d 1033, 1036. See also State v. Arlington (1994), 265 Mont. 127, 152, 875 P.2d 307, 322.

¶37 Having reviewed the facts and circumstances of the instant case, we determine that it does not present the exceptional case envisioned to invoke the common law plain error doctrine. Many of the alleged misstatements of fact and law were either taken out of context of the prosecutor’s argument, or later cured by the jury instructions. The appeals to law, order, and community safety, and alleged inflammatory references to Appellant, although overbroad and dramatic, did not render the trial unfair. See State v. Long (1986), 223 Mont. 502, 512, 726 P.2d 1364, 1371. We conclude that none of the alleged errors, standing alone, or taken together, resulted in a manifest miscarriage of justice, left unsettled the question of the fundamental fairness of the trial or proceedings, or compromised the integrity of the judicial process. Accordingly, we decline to address the constitutional issues relating to prosecutorial misconduct.

Issue 3

¶38 Did the District Court err in requiring Appellant to register as a violent offender without issuing findings concerning Appellant’s violent offender status, and without providing Appellant a hearing to present contradictory evidence regarding his status?

¶39 The District Court sentenced Appellant to commitment to the Department of Corrections (Department) for a term of forty years with twenty years suspended. The court determined that the treatment and security needs of Appellant could be met through the pre-release and intensive supervision programs of the Department rather than confinement. As part of Appellant’s sentencing, the court ordered Appellant to register as a violent offender with the Department of Institutions, Chief of Police, and Sheriff in the county where Appellant resides, pursuant to §§ 46-23-504, -505, and-506, MCA.

¶40 Without citation to authority, Appellant claims that the court’s order requiring him to register as a violent offender infringed his fundamental right to due process. Appellant bases the alleged due process violation on the court’s failure to make specific findings regarding his violent offender status, and the court’s failure to hold a hearing to allow Appellant an opportunity to present contradictory evidence regarding his status. Appellant further challenges the sufficiency of the evidence to support his designation as a violent offender, noting that the court relied on the Department’s presentence investigation report which indicated the following: (1) Mitchell was the primary aggressor; (2) at the time Mitchell was shot, Mitchell was in the process of assaulting Appellant; (3) Mitchell did not heed a warning shot fired by Appellant before his assault of Appellant; (4) Appellant had no prior criminal history; and (6) pre-release and intensive supervised probation adequately addressed the security needs of Appellant. Appellant argues that the these facts support a finding that he was not a violent offender.

¶41 It appears Appellant has misconstrued the court’s role in designating a defendant as a violent offender. Violent offender status is determined purely by statute. Section 46-23-504, MCA, provides:

(1) A sexual or violent offender:
(a) shall register immediately after conclusion of the sentencing hearing if the offender is not sentenced to confinement or is not sentenced to the department and placed in confinement by the department.

A “violent offender” is defined as a person who has been convicted of a violent offense. Section 46-23-502(7), MCA. Mitigated deliberate homicide is a violent offense. Section 46-23-502(9), MCA. On its face, the violent offender registration statute clearly does not vest a district court with the discretion to designate defendants as violent offenders. The statute does not prescribe a notice and hearing procedure for determining violent offender status, nor does it require a district court to issue findings based on evidence regarding a defendant’s violent offender status. Rather, a defendant’s designation as a violent offender is triggered merely by conviction of a violent offense. Appellant’s challenge as to the sufficiency of the evidence is irrelevant. Because Appellant was convicted of a violent offense, by definition he is a violent offender and, therefore, must register as such. We conclude that the District Court did not err in requiring Appellant to register as a violent offender without issuing findings concerning Appellant’s violent offender status, and without providing Appellant a hearing to present contradictory evidence regarding his status.

¶42 Appellant raises the issue of a due process violation, but fails to cite specific authority for his argument as required by Rule 23(a)(4), M.R. App.P. We dispose of this issue by noting the following:

Montana recognizes that due process applies to sentencing, but the defendant’s liberty interest during sentencing is less than that interest during trial. The process that is due, therefore, is not as great as that required by the substantive criminal charges. The defendant is entitled to reasonable notice and an opportunity to be heard during sentencing. Notice of the sentencing hearing itself provides sufficient notice of potential dangerous offender designation because the statute requires the sentencing court to consider the issue. As a practical matter, the criminal defendant is always on notice.

State v. Krantz (1990), 241 Mont. 501, 512, 788 P.2d 298, 305 (citations omitted). Although Krantz concerned the process due for dangerous offender designation under § 46-18-404, MCA, a statute which has since been repealed, the analysis and holding of Krantz is no less applicable. Applying Krantz to the instant case, the process due Appellant for designating him a violent offender was reasonable notice and an opportunity to be heard during sentencing. Notice of the sentencing hearing provided Appellant with reasonable notice of his violent offender status, and Appellant was given an opportunity to be heard at his sentencing. We conclude that Appellant was afforded due process at his sentencing.

¶43 Affirmed.

JUSTICES REGNIER, GRAY, TRIEWEILER and LEAPHART concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. GERALD HEFFNER and D.J. HEFFNER, Defendant and Appellant.
    No. 97-379.
    Submitted on Briefs March 19, 1998.
    Decided July 21, 1998.
    1998 MT 181.
    55 St.Rep. 732.
    290 Mont. 114.
    964 P.2d 736.

      For Appellant: Richard L. Musick, Kalispell.
    For Respondent: Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena; Deborah Kim Christopher, Lake County Attorney, Poison.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶1 Gerald and D.J. Heffner (Appellants), father and son, were charged with threats and other improper influence in official and political matters, a felony, in violation of § 45-7-102(l)(b), MCA. Appellants were tried simultaneously in the Twentieth Judicial District Court, Lake County. A jury found each Appellant guilty and judgments of conviction were entered. Appellants jointly appeal the jury verdict and judgments of conviction. We affirm.

¶2 We address the following issues:

¶3 1. Was the evidence sufficient to support Appellants’ convictions for the charged offense?

¶4 2. Does the record support Appellants’ claims of instructional error?

¶5 3. Is Appellants’ constitutional challenge to § 45-7-102(l)(b), MCA, properly before this Court when it was not raised below?

BACKGROUND

¶6 On June 4,1996, a crew of Lake County Road Department employees were working to widen the Lake Mary Ronan Road, and build a base for the road in preparation for asphalt. The road crew was using dump trucks, road graders, and belly dumps to accomplish this project. The dump trucks and belly dumps would dump gravel on the road, and the graders would berm the gravel in the middle of the road. Finally, the graders would make passes back and forth to flatten the berm. In flattening the berm, it was not uncommon for rocks as large as one foot in diameter to turn up and be pushed to the outer edges of the road. The particular stretch of road under construction consisted of about one and one half miles, from the junction of Lake Mary Ronan and Camp Tuffit Roads to the entrance of Mountain Meadow Lodge. “Men Working” and “35 mph” signs were posted at each end of the construction zone.

¶7 When doing this type of road work, it is not possible for cars to use the road until the grader operator periodically opens the road for cars to pass. On days of heavy traffic, flaggers are used to control access to the stretch of road under construction. However, on light to medium traffic days, the road crew operators control access to the road themselves by using road signs and radios to inform each other when to let cars pass, and to warn each other of “fast movers.” On June 4, 1996, although “a lot” of cars were using the stretch of road under construction, traffic was not heavy enough to require the use of flaggers. Thus, the road crew operators controlled traffic themselves.

¶8 At approximately 10:00 a.m., Appellants were traveling on Lake Mary Ronan Road and came upon the construction zone on their way to picking mushrooms. Appellants admit that they saw the signs and the road crew operators working. Appellants traveled through the construction zone with no problems.

¶9 Later that day, at about 2:30 p.m., Appellants had finished picking mushrooms and were again traveling on Lake Mary Ronan Road. Charlie Adams (Adams), a road grader operator, was backing up the grader while in the process of spreading gravel. Adams looked in front of him and behind him using his rear view mirrors and saw no one. He glanced down at his blade for a few seconds, then looked up in his rear view mirror and saw Appellants’ truck come around the edge of the left side of his grader. The truck was traveling at a high rate of speed, and Adams panicked. He saw the truck go into the ditch on the left side of the road. When the truck came to a stop, the truck’s passenger side wheels were on the left shoulder of the road, and the rest of the truck was down into the ditch. The back of the truck was even with the front of Adams’ grader. Adams continued backing up because he knew he would not hit the truck.

¶ 10 D. J. Heffner was driving the truck. He exited the truck, walked to the door of Adams’ grader and said something to Adams which Adams could not hear because his grader was still running. It was Adams’ practice that when someone approached his grader and wanted to talk with him, Adams exited his grader. When exiting the grader, Adams had to turn around and climb down backwards. When Adams climbed down from his grader and turned around, D. J. Heffner was standing about four inches from Adams’ face. Adams felt threatened by D. J. Adams, put his arms on D. J.’s shoulders and pushed D. J. back. Adams did not remember whether he pushed D. J. hard or easy. Adams next saw Gerald Heffner out of the corner of his eye about an arm’s length away. He again felt threatened by the situation. D. J. began choking Adams and Adams was unable to breathe. Adams testified he was positive he never touched either of the Heffners except to push D. J. Heffner back.

¶ 11 The next thing Adams remembered was lying on his back and being choked. Adams also remembered being on his hands and knees, looking to his right, and seeing Bert Todd, a fellow crew member, being choked by Gerald Heffner. The next thing Adams remembered was hearing Bob Richardson, another fellow crew member, say that he ought to take Adams to the doctor. At that point, the Heffners were gone.

¶12 D. J. and Gerald Heffner were later arrested and charged with threats and improper influence in official and political matters, a violation of § 45-7-102(l)(b), MCA. A trial by jury was held March 20-21, 1997. Bert Todd (Todd), a dump truck operator, was working closely with Adams when the incident occurred. Todd testified that he was turning his truck around about a quarter of a mile from where Adams was located when he saw Appellants’ truck coming toward him going “extremely fast.” Todd testified that there wasn’t much room in the road for Appellants to pass, but that they “squeaked by” him heading in the direction of Adams. Todd stated that Appellants were traveling so fast he did not have time to radio Adams and warn him of their approach.

¶13 Todd completed his turnaround and headed in the direction of Adams. As he rounded a bend in the road, he saw Adams lying in the road. He also saw Gerald Heffner standing over Adams with his leg drawn back. Todd radioed the other crew members, told them of the situation, and exited his truck. Todd saw Gerald kneeling over Adams and saw Gerald strike Adams with his fist. Todd ran, tackled Gerald, and rolled him off of Adams into the ditch. Gerald got up, put Todd in a choke hold, and asked him twice if he “gives up.” Todd could not answer because he couldn’t breathe. After awhile, Gerald let Todd go and left with D. J. Todd testified that he never saw Adams strike, kick, or grab either Gerald or D.J. Heffner.

¶14 Bob Richardson (Richardson), a road grader operator, was also working closely with Adams on the day of the incident. Richardson testified that he saw Appellants’ truck coming around Adams’ grader “pretty fast” before it went into the ditch. Richardson saw D. J. get out of his truck and run to Adams’ grader. Richardson continued his work thinking D. J. and Adams were simply talking. A moment later, Richardson looked up again and saw Adams lying in the ditch. Richardson then heard Todd on the radio stating that “they had Charlie [Adams] down.” Richardson went to help Adams and saw Adams lying on the ground and D. J. standing over him. Richardson saw that Adams sustained severe injuries to the eye area and the chest. He looked around and saw Todd lying in the ditch with Gerald. Richardson then told Appellants that he was going to call the sheriff. At that point, Appellants jumped in their truck and left. Richardson tried to block the road with his grader but to no avail. Richardson testified he never saw Adams strike, kick, or grab either Gerald or D. J. Heffner.

¶ 15 Sheriff’s Deputy Dave Alexander was on duty the evening of the incident. He responded to a complaint made by D. J. Heffner earlier in the day regarding an assault. Officer Alexander telephoned D. J. and asked about the nature of the assault. D. J. told Officer Alexander that Adams assaulted him and that he sustained injuries to his back. Officer Alexander instructed D. J. to write a statement and wait for him to come and pick it up. When Officer Alexander arrived, Appellants gave him their written statements. Officer Alexander looked for visible marks or other signs of injury on Appellants but saw nothing. Appellants did not attempt to show him any injuries.

¶16 Doctor David Gorman (Dr. Gorman) specializes in family medicine and examined Adams after the incident. Adams told Dr. Gorman what had happened to him, and Dr. Gorman took photographs of Adams’ injuries which were admitted into evidence. Dr. Gorman stated that the photographs showed a considerable amount of swelling over Adams’ left eye and a contusion over his left cheek. Adams’ left eye was completely black and blue and almost swollen shut. The photographs also showed abrasions and a large contusion on the upper right part of Adams’ chest. Dr. Gorman defined an abrasion as a break of the skin and a contusion as the bruising and swelling occurring under the skin. Dr. Gorman testified that Adams suffered blunt force trauma. He stated that Adams’ eye and chest injuries indicated immediate and substantial swelling, consistent with being punched or kicked. He testified that the fact that Adams bruised so quickly meant that a great amount of force was used.

¶17 Appellant Gerald Heffner testified in his own behalf and recounted a different turn of events regarding June 4,1996. He testified that when he and D. J. came upon Bert Todd’s dump truck in the center of the road, they stopped and waited for the dump truck to back up before continuing down the road. When they came upon Adams’ grader, they moved to the side to avoid Adams and beeped the horn to let Adams know they were there. Gerald stated that Adams stopped the grader when its front wheel was even with the front wheel of Appellants’ truck. He stated that Adams said something to them and began exiting his grader.

¶18 Meanwhile, D.J. had exited his truck. Gerald testified that Adams and D.J. met near the truck and that Adams was angry. He saw Adams strike D.J. and push him back. Gerald stated that Adams was on top of D.J. in the ditch and that Adams hit D.J. several times. Gerald did not know where any of these blows landed on D.J. Gerald ran and pulled Adams back. Gerald testified that Adams hit him and that he responded by hitting back. Gerald did not know where he hit Adams. He did not know he had given Adams a black eye until he was arrested. In his written statement made on the day of the incident, Gerald never stated that he hit Adams. Gerald testified that after the struggle with Adams, Bert Todd swung at him but missed. Gerald threw his arm around Todd’s neck and they hit the ground in the ditch. Once Todd calmed down, Gerald let him go. Gerald and D.J. then left the scene.

¶19 D.J. Heffner also testified in his own behalf. D.J.’s account of events was similar to Gerald’s, only D.J. stated that when he came upon Adams’ grader, he came to a full stop and did not go into the ditch. He testified that Adams continued to back up his grader and was coming close to his truck. D.J. honked his horn to alert Adams of his presence. D.J. stated he could have moved his truck out of the way. D.J. testified that he sustained injuries to his right eye and right leg. This testimony was inconsistent with his written statement made on the date of the incident. D.J. testified that Adams was conscious during the entire incident and was standing up when he and Gerald left the scene. He testified that the bruise to Adams’ eye was visible when he left the scene.

¶20 When Appellants were arrested on June 6,1996, photographs of their bodies were taken by Sheriff Joe Geldrich. It is undisputed that the pictures show light bruising on Gerald’s back. However, it is disputed whether the photographs show any injuries to D.J.’s body. D.J. claimed that small red marks located under his right eye and near his right knee resulted from the struggle with Adams. The prosecutor could not see any visible injuries on D. J., let alone injuries that would have resulted from the events described by Appellants.

DISCUSSION

Issue 1

¶21 Was the evidence sufficient to support Appellants’ convictions for the charged offense?

¶22 This Court reviews the sufficiency of the evidence in a criminal case to determine whether, upon viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. State v. Ford (1996), 278 Mont. 353, 359, 926 P.2d 245, 248.

¶23 Appellants were charged and convicted of threats and other improper influence in official and political matters, a felony, pursuant to § 45-7-102(l)(b), MCA, which provides in relevant part:

(1) A person commits an offense under this section if the person purposely or knowingly: ...(b) injures the person or property of a public servant... because of the public servant’s lawful discharge of the duties of the office or to prevent the public servant from discharging the public servant’s official duties.

“Public servant” means any officer or employee of government. Section 45-2-101(62), MCA.

¶24 Appellants do not dispute that Adams is a public servant. Appellants also do not dispute that they purposely or knowingly injured Adams. Appellants only dispute the sufficiency of the evidence regarding whether they injured Adams because of Adams’ lawful discharge of his duties or to prevent Adams from discharging his official duties. Appellants argue that no evidence exists to support a finding that Appellants’ actions were motivated by either distaste for Adams’ work or a desire to prevent Adams’ from completing his work. Appellants argue the evidence shows their actions were motivated by self-defense in response to Adams pushing D. J. Appellants further argue that because Adams pushed D. J. first, the State must prove that pushing D. J. was part of Adams’ official duties in order to convict them of the charged offense.

¶25 The State counters that proof that pushing D. J. was part of Adams’ official duties is not an element of the charged offense and, therefore, need not be proven. The State further argues that Appellants have focused on a narrow time frame of the incident and have glossed over the relevant events occurring before Adams pushed D. J. The State argues that given the totality of circumstances, Appellants’ arguments are without merit. We agree with the State. We will address Appellants’ arguments in turn.

¶26 First, to obtain a conviction for a criminal offense, the State need only prove the elements of the offense as defined by statute. See Patterson v. New York (1977), 432 U.S. 197, 211 n.12, 97 S.Ct. 2319, 53 L.Ed.2d 281 (“[t]he applicability of the reasonable doubt standard has always been dependent on how a state defines the offense that is charged in any given case”); State ex rel. Keyes v. Thirteenth Judicial District, 1998 MT 34, ¶¶ 15-24, 55 St. Rep. 125, 127-28, 955 P.2d 639, 642-43 (Court considered the plain language of the accountability and felony murder statutes in determining whether the defendant was charged with a legitimate offense under Montana law). A conviction pursuant to § 47-5-102(l)(b), MCA, requires proof of the following elements:

1. That the defendant injured the person of a public servant because of the public servant’s lawful discharge of the duties of the office or to prevent the public servant from discharging the public servant’s official duties; and
2. That the defendant acted purposely or knowingly.

We hold that the State was not required to prove that pushing D. J. was part of Adams’ official duties because it is not an element of the charged offense.

¶27 Second, the State produced sufficient evidence from which a rational jury could find that Appellants’ actions were motivated by either distaste for Adams’ work, or a desire to prevent Adams’ from completing his work, or both. Appellants saw the “men working” and “35 mph” signs posted at both ends of the construction zone, yet disregarded them and continued traveling at a high rate of speed. When Appellants came upon Adams’ grader in the middle of the road, Appellants either did not stop or could not stop. Appellants were forced to move left and ended up with the their truck in the ditch.

¶28 D. J. got out of his truck and ran toward Adams’ grader. D. J. said something to Adams. Adams couldn’t hear and began to climb backwards out of his grader, as was his practice when someone wanted to talk to him. As Adams turned around, D. J. was standing four inches from his face. In response to D. J.’s invasion of Adams’ personal space, Adams put his hands on D. J.’s shoulders and pushed him back. Bert Todd saw Adams lying on the ground and Gerald standing over him with his leg drawn back. Todd tackled Gerald, rolled him off of Adams, and the two landed in the ditch at which point Gerald put a choke hold on Todd and asked him whether he “gives up.”

¶29 Bob Richardson heard Todd say over the radio, “They have Charlie [Adams] down.” Richardson saw Adams lying on the ground and D. J. standing over him. He could already see that Adams had a severe eye injury. Richardson saw Todd and Gerald in the ditch and informed them that he would call the police. Appellants then got in their vehicle and left. Neither Todd nor Richardson ever saw Adams hit, kick, or fight in any way with either D. J. or Gerald. Adams came away from the incident with a swollen black eye, a contusion to his cheek, and abrasions and a contusion to his chest, whereas D. J. came away with no visible injuries, and Gerald came away with only light bruising to his lower back.

¶30 Appellants argue that their convictions were based on mere suspicion or conjecture and, therefore, require reversal. State v. Phillips (1966), 147 Mont. 334, 340, 412 P.2d 205, 208. We do not agree. Although Appellants’ convictions were based on circumstantial evidence, “we have held numerous times that circumstantial evidence is sufficient to support a conviction.” State v. Miller (1988), 231 Mont. 497, 511-12, 757 P.2d 1275, 1284. Montana law permits a jury to draw inferences from the evidence presented at trial. Section 26-1-501, MCA. “ ‘Evidence’ is the means of ascertaining in a judicial proceeding the truth respecting a question of fact, including but not limited to witness testimony, writings, physical objects, or other things presented to the senses.” Section 26-1-101(2), MCA. Given the evidence presented in this case, a rational jury could infer that Appellants were upset that their swift travel on the road was impeded by Adams’ duties as a road grader operator, and that Appellants took their anger and frustration out on Adams.

¶31 Appellants’ theory of self-defense is wholly dependent on their version of the facts, which the jury was entitled to reject. “The weight of the evidence and the credibility of the witnesses are exclusively within the province of the trier of fact; when the evidence conflicts, the trier of fact determines which shall prevail.” State v. Bower (1992), 254 Mont. 1, 8, 833 P.2d 1106, 1111. It is the jury’s prerogative whether to accept or reject a defendant’s claim of self-defense. State v. Crazy Boy (1988), 232 Mont. 398, 401, 757 P.2d 341, 343. In this case, the jury weighed the evidence, assessed the credibility of the witnesses, and found the State’s version of the incident more credible than Appellants’. Viewing the evidence in a light most favorable to the prosecution, we hold there existed sufficient evidence from which a rational jury could find that Appellants injured Adams because of the discharge of his duties or to prevent Adams from discharging his duties, and that Appellants were not justified in the use of force against Adams.

Issue 2

¶32 Does the record support Appellants’ claims of instructional error?

¶3 3 Appellants’ argument regarding instructional error is unclear. Appellants frame the.issue in terms of whether the court erred in refusing to give an instruction on justifiable use of force. However, the substance of Appellants’ argument claims that the court erred in refusing to give an instruction on assault. We dispense with this issue by first noting that the record shows that both the State and Appellants submitted the same instruction on justifiable use of force, and that the instruction was given. Thus, it appears the first error of which Appellants speak did not occur. We also note that Appellants did not include in the record on appeal any proposed instruction on either justifiable use of force or assault. Rule 9(a), M.R.App.R provides in relevant part:

The original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the district court shall constitute the record on appeal in all cases. It is the duty of a party seeking review of a judgment, order or proceeding to present the supreme court with a record sufficient to enable it to rule upon the issues raised.

Appellants having failed to make an appropriate record on appeal, we cannot consider their claims of instructional error.

Issue 3

¶34 Is Appellants’ constitutional challenge to § 45-7-102(l)(b), MCA, properly before this Court when it was not raised below?

¶35 Appellants argue that § 45-7-102(l)(b), MCA, is unconstitutionally vague because it fails to give reasonable notice of the prohibited conduct, or is unconstitutionally overbroad because it covers protected conduct. Appellants’ constitutional challenge is not reviewable because it was not raised in the District Court and may not be raised for the first time on appeal. See Sections 46-20-104(2) and -701(2), MCA; State v. Woods (1997), 283 Mont. 359, 372, 942 P.2d 88, 96-97. Although this Court recognizes the common law doctrine of plain error review, see State v. Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215, this case does not present the “exceptional” case envisioned for plain error review. See State v. Sullivan (1996), 280 Mont. 25, 31, 927 P.2d 1033, 1037; State v. Arlington (1994), 265 Mont. 127, 152, 875 P.2d 307, 322. Thus, we decline to address Appellants’ claim regarding the constitutionality of § 45-7-102(l)(b), MCA.

¶36 Affirmed.

JUSTICES GRAY, NELSON, LEAPHART and REGNIER concur.


author: JUSTICE TRIEWEILER

text:
    JOHN L. GENTRY, individually and as Personal Representative of the Estate of Barbara Gentry, and as parent and next friend of Kalen Gentry and Kallie Gentry, Plaintiff and Appellant, v. DOUGLAS HEREFORD RANCH, INC., a Montana Corporation; and PARD CATTLE COMPANY, a limited liability company, Defendants and Respondents.
    No. 97-373.
    Submitted on Briefs January 15, 1998.
    Decided July 21, 1998.
    1998 MT 182.
    55 St.Rep. 737.
    290 Mont. 126.
    962 P.2d 1205.

      For Appellant: Gary L. Zadick; Ugrin, Alexander, Zadick & Higgins; Great Falls; Ron Efta; Attorney at Law; Wibaux.
    For Respondents: Carolyn S. Ostby; Crowley, Haughey, Hanson, Toole & Dietrich; Billings (for Douglas Hereford Ranch); Robert Savage; Habedank, Cumming, Best & Savage; Sidney (for Pard Cattle Company).
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶1 The plaintiff, John L. Gentry, brought this action in the District Court for the Seventh Judicial District in Wibaux County to recover damages from the defendants, Douglas Hereford Ranch, Inc., and Pard Cattle Company, for the wrongful death of Barbara Gentry, and for damages she sustained prior to her death. The District Court awarded summary judgment to both defendants. Gentry appeals from the District Court’s order and judgment. We affirm the judgment of the District Court.

¶2 The issues are:

¶3 1. Did the District Court err when it concluded as a matter of law that the defendants were not negligent?

¶4 2. Did the District Court err when it concluded as a matter of law that defendant Douglas Hereford Ranch, Inc., was not vicariously liable for the negligence of Brent Bacon?

DISCUSSION

¶5 Defendant Douglas Hereford Ranch, Inc., is the owner of ranch land located in Wibaux County, Montana. The principal shareholder in the ranch company is Cleone Elizabeth Douglas, the grandmother of Chris Ann Douglas who, at the time relevant to this action, was married to Brent Bacon. Defendant Pard Cattle Company was the lessee of the ranch land.

¶6 Sometime prior to November 5,1994, Chris had offered to assist Cleone by painting the interior of a house known as the “new house” located on the ranch property. Chris’s friend, Barbara Gentry, offered to assist her with the painting project in return for assistance Chris had previously provided to Barbara.

¶7 Chris and Barbara intended to paint the interior of the house on November 5,1994. However, the previous night, or that morning, they were advised that the furnace in the house was not operating. Cleone assumed that it would simply need to be turned on. Therefore, on the morning of November 5, Brent Bacon drove from Wibaux, where the couple lived, to the ranch with the intention of first starting the furnace and then hunting for deer on the ranch property. He took with him a Marlin lever action 30-30 rifle and headed to the ranch in his personal vehicle.

¶8 On his way to the ranch, Brent observed a fox, loaded six or seven rounds of ammunition into the rifle magazine, “cocked in a shell,” and fired one shot at the fox. He apparently missed and “cocked in a second shell,” but was too late to fire a second shot. According to his statement to investigators, he then pulled the trigger and released the hammer so that the hammer was resting on a live round of ammunition. He then proceeded to the ranch, where he helped Cleone dislodge her garage door, and then visited with her for awhile. After Chris, Barbara, and several of their children arrived in the ranch pickup, he walked to the “new house,” which was then unoccupied, to check on the furnace. He left his rifle in his vehicle. After repeated efforts, Brent was unable to start the furnace. So, after exchanging pleasantries with Chris and Barbara who had, by then, arrived at the “new house,” he started a fire in the fireplace and announced that he was leaving to go hunting. He walked back to his car, retrieved his rifle, put a box of shells in his pocket and returned to the “new house” to get the ranch pickup which he intended to drive to the point where he would begin his hunt.

¶9 Adjoining the house was a wooden deck accessed by two wooden steps. As Brent approached the deck, he was holding his rifle on his shoulder with his right hand. He had three of his fingers on the lever and one of them on the trigger. His thumb was on the hammer. At about the time he reached the deck, Barbara exited the house to retrieve a radio from the ranch pickup. She headed in the same direction that Brent was going and did not see him. As he reached the deck and was watching her, he stumbled and fell. Sometime after he stumbled, but before he landed on the deck, his rifle discharged; the bullet struck Barbara in the head; and, after surviving for a period of sixty-nine days, she died from the head injuries she sustained when she was shot.

¶10 In a taped interview given by Brent Bacon later in the day on November 5, he was asked the following question and gave the following answer:

Q: You don’t know how you slipped or ... ?
A: I don’t know how I slipped ....

¶11 On January3,1996, John L. Gentry, the personal representative and surviving spouse of Barbara Gentry, brought this action to recover damages for her wrongful death and a survival action to recover those damages sustained by Barbara Gentry prior to her death. The ranch company, the cattle company, and Brent Bacon were all originally named as defendants. Bacon was later dismissed when he sought protection in bankruptcy court.

¶12 In his complaint, Gentry alleged that Bacon had been negligent while working for the ranch company; that the ranch company was vicariously liable for Bacon’s negligence; and that the ranch company and cattle company were also negligent for allowing an unsafe and dangerous condition (the stairs to the deck and the area surrounding the stairs) to exist on the ranch property. He alleged that the combination of Bacon’s negligence and the dangerous condition of the stairs contributed to cause Barbara Gentry’s injuries and death.

¶13 After all three denied liability, the ranch company moved for summary judgment. That motion was later joined by the cattle company. As the basis for their motions, the defendants contended that: (l)they owed no duty to Barbara which had, in fact, been breached; (2) Barbara’s injuries were neither caused in fact nor proximately caused by any condition on the ranch property; and (3) because Bacon was not an employee of the ranch company at the time that he shot Barbara, the ranch company was not vicariously liable for his conduct.

¶14 In opposition to the defendants’ motions, Gentry contended that: (1) B aeon was the employee of the ranch because he was there at the request of its owner to perform repairs; (2) the loose condition of the bottom step which led to the deck, and the clutter around the step, created an inherently dangerous condition which contributed to Bacon’s fall and Barbara’s injury; and (3) pursuant to § 27-1-317, MCA, and Lacock v. 4B’s Restaurants, Inc. (1996), 277 Mont. 17, 919 P.2d 373, the defendants’ duty to Barbara did not depend on whether the specific circumstances of her injury were foreseeable.

¶15 The District Court granted the defendants’ motions for summary judgment based on the following conclusions:

¶ 16 1. The District Court concluded that the defendants had no duty to Barbara because the risk of this type of accident was not foreseeable. Its opinion stated: “It is inconceivable that a person standing well away from the zone of risk would be shot.”

¶17 2. The District Court concluded that no unsafe condition had been shown to exist on the defendants’ property.

¶ 18 3. The District Court held that no evidence had been offered to prove that the condition of the steps was either the actual or proximate cause of Barbara’s injuries.

¶ 19 4. The District Court concluded that even if the defendants were negligent, the manner in which Bacon handled his firearm was so unforeseeable that it was an intervening, superseding cause of Barbara’s injuries.

¶20 5. The District Court concluded that principles of respondeat superior were not applicable because Bacon was not an employee of the ranch company on the date in question, and even if he had been earlier in the day, his actions at the time of Barbara’s injuries were unrelated to any duties he had performed for the ranch.

¶21 This appeal followed. Because we conclude that no proof has been presented to establish that a condition on the ranch property contributed as an actual cause of Barbara’s injury, and that Bacon was not acting as an employee or servant of the ranch company at the time of Barbara’s injury, we will not discuss the other conclusions of the District Court, nor the other issues raised on appeal.

ISSUE 1

¶22 Did the District Court err when it concluded as a matter of law that the defendants were not negligent?

¶23 When we review appeals from an order which grants summary judgment, our review is de novo. We review the facts presented to the district court to determine whether, based on Rule 56, M.R.Civ.R, the prevailing party is entitled to judgment as a matter of law. See Schmidt v. State (1997), [286 Mont. 98], 951 P.2d 23, 26; Jarrett v. Valley Park, Inc. (1996), 277 Mont. 333, 338, 922 P.2d 485, 487.

¶24 In Bruner v. Yellowstone County (1995), 272 Mont. 261,900 P.2d 901, we held that after the moving party demonstrates that no genuine issue of material fact exists, the burden shifts to the party opposing summary judgment to prove by more than mere denial and speculation that a genuine issue does exist. See Bruner, 272 Mont. at 264, 900 P.2d at 903; see also Heiat v. Eastern Montana College (1996), 275 Mont. 322, 327, 912 P.2d 787, 791.

Anegligence action requires proof offour elements: (1) existence of a duty; (2) breach of the duty; (3) causation; and (4) damages. If the plaintiff fails to offer proof of one of these elements, the action in negligence fails and summary judgment in favor of the defendant is proper. U.S. Fidelity and Guar. Co. v. Camp (1992), 253 Mont. 64, 68, 831 P.2d 586, 589. The causation element requires proof of both cause in fact and proximate cause. Kitchen Krafters v. Eastside Bank (1990), 242 Mont. 155, 167-68, 789 P.2d 567, 574.

White v. Murdock (1994), 265 Mont. 386, 389-90, 877 P.2d 474, 476.

¶25 We have since overruled Kitchen Krafters to the extent that it required proof of proximate cause in every negligence action. In Busta v. Columbus Hospital Corp. (1996), 276 Mont. 342, 371, 916 P.2d 122, 139, we held that:

In those cases which do not involve issues of intervening cause, proof of causation is satisfied by proof that a party’s conduct was a cause-in-fact of the damage alleged. As stated in Prosser and Keeton on Torts § 41, at 266 (5th ed. 1984), a party’s conduct is a cause-in-fact of an event if “the event would not have occurred but for that conduct; conversely, the defendant’s conduct is not a cause of the event, if the event would have occurred without it.”

¶26 In those cases, such as this case, where an independent intervening act is alleged, proximate cause and the attendant notion of foreseeability is still an issue. See Estate of Strever v. Cline (1996), 278 Mont. 165, 175, 924 P.2d 666, 672. Therefore, in this case, as we noted in White, proof of causation required proof of cause in fact and proof of proximate cause. We limit our discussion, however, to our conclusion that Gentry failed to prove cause in fact.

¶27 Gentry alleged that the ranch company and the cattle company were negligent by failing to maintain the stairs to the deck adjoining the “new house” in a reasonably safe condition. He contended that the bottom stair was unstable and that the area leading to it was cluttered by debris, including a drain pipe, electric wires, and rocks. However, the defendants’ motions for summary judgment were based on Bacon’s testimony that he was unable to attribute his fall to any of those conditions. When he was deposed on May 2,1997, he gave the following testimony in response to the following questions:

Q: Do you remember stumbling as you started up the steps?
A: I don’t remember hardly anything.
Q: And you don’t remember exactly where you were when you began to stumble; is that right?
A: That’s correct.
Q: And you don’t know whether it was — whether there was even some object that caused you to slip or stumble; is that right?
A: I don’t remember anything.
Q: You don’t remember where you were?
A: No.
Q: And from the time after the rifle discharged, you don’t know exactly where you were when you fell or what caused you to fall; is that right?
A: Correct.
Q: And you don’t recall if you had even reached the steps at the time that you fell; is that right?
A. That’s correct.
Q: Did you want to add something?
A: Yes. I’ve stated umpteen numerous times that I don’t remember if I tripped or if I was just clumsy or if I missed the step or hit it or whatever. I’ve stated that and stated that, and I don’t recall.

¶28 Bacon also testified that while he had stumbled climbing those same steps prior to the incident in question, he had done so as the re-suit of his own clumsiness, and not because of the condition of the steps.

¶29 In response to Bacon’s deposition testimony, which was cited to the District Court in support of the defendants’ motions for summary judgment, Gentry cited the District Court, and now cites this Court, to the following statement made by Bacon during an interview with investigators on November 16, 1995.

TW: Okay. So, you remember stumbling, and you don’t remember on what?
BB: No, I don’t remember if I went to step up on the step or if... there’s a rock there also underneath the step to keep it level. I don’t think it was that, I think it was the step.

¶30 Gentry contends that based on this isolated statement a reasonable finder of fact could infer that it was the step which caused Bacon’s fall. However, earlier in the same interview, he was asked the following question and gave the following answer:

TW: Do you remember what you stumbled on?
BB: No I don’t.

¶31 Furthermore, when asked in his deposition whether, at the time of his November 16 statement, he had remembered what caused him to fall, he testified that he had not. That testimony was consistent with his statement on the date of the incident in which he stated that he did not know how he fell.

¶32 Finally, even the isolated statement relied on by Gentry does not support the contention that it was the condition of the step or the area surrounding the step which caused Bacon to stumble and fall. The most that could be inferred was that he was about to ascend the stairs when he did stumble and fall. Why he stumbled and fell would still require speculation. In the context of summary judgment proceedings, we have previously held that neither a suspicion nor speculation is sufficient to defeat a motion for summary judgment. In Benson v. Diehl (1987), 228 Mont. 199, 203, 745 P.2d 315, 317, we held that:

A suspicion, regardless of how particularized it may be, is not sufficient to sustain an action or to defeat a motion for summary judgment. Unsupported conclusory or speculative statements do not raise a genuine issue of material fact. The trial court has no duty to anticipate possible proof. Gates v. Life of Mont. Ins. Co. (1982), 196 Mont. 178, 638 P.2d 1063, 1066.

¶3 3 The facts presented in this case are similar to those presented in Krone v. McCann (1982), 196 Mont. 260, 638 P.2d 397, overruled on other grounds by Richardson v. Corvallis Public School Dist. (1997), [286 Mont. 309], 950 P.2d 748, 756. In that case, the plaintiff sought damages for injuries she sustained while walking on property owned by the defendant. She was injured when she stumbled over some object on the property. However, she was unable to identify what it was that caused her to stumble. We affirmed summary judgment for the defendant for the following reasons:

More importantly, the fact is undisputed that the appellant cannot describe what caused her injury. She does not know if it was merely a mound of dirt or an old corral pole.
In an action for negligence, a plaintiff must produce evidence from which it can be reasonably inferred that negligent conduct on the part of the defendant or its agents was the proximate cause of the plaintiff’s injuries. Flansberg v. Montana Power Company (1969), 154 Mont. 53, 460 P.2d 263, approved in Scott v. Robson, supra, 597 P.2d at 1155. Here, the appellant simply does not know exactly what caused her injury. As noted above, the respondents cannot be the insurers of the appellant and held liable for her injury merely because an accident happened on their land.

Krone, 196 Mont. at 266, 638 P.2d at 400-01.

¶34 Likewise, Gentry has offered no substantial evidence that any condition on the property owned by the ranch company and leased by the cattle company caused Bacon to stumble and fall immediately before his rifle discharged and struck the decedent, Barbara Gentry. Therefore, we conclude that cause in fact cannot be proven as a matter of law, and the District Court did not err when it held that the defendants, Douglas Hereford Ranch, Inc., and Pard Cattle Company were not negligent in a manner that contributed to the injuries and death of Barbara Gentry.

ISSUE 2

¶35 Did the District Court err when it concluded as a matter of law that defendant Douglas Hereford Ranch, Inc., was not vicariously liable for the negligence of Brent Bacon?

¶36 Gentry contends that even if a dangerous condition on the ranch property was not responsible for Barbara Gentry’s injury and death', the ranch company is vicariously liable for the negligence of Bacon because he was at the ranch to perform services for the ranch company on the date of Barbara’s injury. However,

A claim of respondeat superior against an employer requires there to have been an employment relationship between the defendant and the tortfeasor when the injury to the third party occurred. In the absence of statutory or contractual provisions to the contrary, a public or private entity is ordinarily not vicariously liable for, or obligated to pay expenses associated with, the tortious acts of those who are not its employees. Distinctions between the terms employer and employee, master and servant, and principal and agent are immaterial for respondeat superior purposes.

27 Am. Jur. 2d Employment Relationship § 461 (1996).

¶37 We apply the same limitation to the principle of respondeat superior in Montana. See Clawson v. Schroeder (1922), 63 Mont. 488, 498-99, 208 P. 924, 927.

¶38 Furthermore, an employment relationship is contractual in nature and generally requires the mutual assent of the parties, as well as consideration. See 27 Am. Jur. 2d Employment Relationship § 14 (1996). In this case, none of the elements of an employment relationship were proven. Bacon’s gratuitous offer to help his wife’s grandmother open the garage door, and his willingness to help start the furnace so that his wife and her friend would be warmer while they painted the walls of the “new house” did not make him the ranch’s employee.

¶39 Finally, respondeat superior only applies to an employee or agent who is acting within the scope of his duties owed to his employer or principal. See Kornec v. Mike Horse Mining Co. (1947), 120 Mont. 1, 8, 180 P.2d 252, 256; Hoffman v. Roehl (1921), 61 Mont. 290, 298-99, 203 P. 349, 350. In this case, it is undisputed that Bacon was not acting on behalf of the ranch company or the cattle company at the time that his conduct caused Barbara’s injury. He had abandoned his effort to start the furnace in the “new house.” He had gone to his personal vehicle to pick up his rifle, and was returning to borrow the pickup so that he could go hunting. Nothing about his activity at the time that he stumbled and shot Barbara was remotely related to ranch business.

¶40 For these reasons, we conclude that the District Court did not err when it held, as a matter of law, that Douglas Hereford Ranch, Inc., was not vicariously liable for the acts or omissions of Brent Bacon on November 5,1994, when he injured Barbara Gentry.

¶41 We affirm the judgment of the District Court.

JUSTICES NELSON, LEAPHART, HUNT and GRAY concur.


text:
    STATE OF MONTANA ex rel. DEPARTMENT OF ENVIRONMENTAL QUALITY, Plaintiffs and Respondents, v. ROD AND LINDA ROBINSON, Defendants and Appellants.
    No. 97-386.
    Submitted on Briefs June 25, 1998.
    Decided July 23, 1998.
    1998 MT 185.
    55 St.Rep. 745.
    290 Mont. 137.
    962 P.2d 1212.

      For Appellants: Patrick F. Flaherty, Great Falls.
    For Respondents: David M. Rusoff, Department of Environmental Quality, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶1 Rod and Linda Robinson appeal the denial of their motion to set aside a default and default judgment entered by the Ninth Judicial District Court, Toole County. Their motion was deemed denied by operation of law when the District Court failed to rule on it within 60 days as provided for by Rule 60(c), M.R.Civ.R We affirm.

¶2 The sole issue we address is whether the District Court erred when it failed to set aside the default judgment and entry of default.

BACKGROUND

¶3 The Robinsons operate a motor vehicle wrecking facility near Oilmont, Montana. The Motor Vehicle Recycling and Disposal Act (“Act”) requires persons who operate such a facility to obtain a wrecking facility license from the Department of Environmental Quality (DEQ), which is charged with enforcing the State’s motor vehicle recycling and disposal laws. Section 75-10-511(1), MCA. Additionally, such persons are required to shield the facility from public view. Section 75-10-505, MCA; Rule 17.50.202(1), ARM.

¶4 In 1995, the DEQ discovered that the Robinsons were operating a motor vehicle wrecking facility without a license, and that they had not shielded their facility from public view as required by the Act. Beginning in May 1995, the DEQ wrote letters to the Robinsons requesting that they bring their facility into compliance with the law. The Robinsons did not respond to any of the DEQ’s informal attempts to rectify the situation.

¶5 When the Robinsons still had not responded to any of the DEQ’s correspondence over the course of an entire year, in August 1996, the DEQ sent the Robinsons a certified letter stating that if they did not take steps to bring the facility into compliance with the law, the DEQ would initiate an enforcement action. The Robinsons, however, refused to accept delivery of the letter.

¶6 Finally, on August 9,1996, the DEQ filed a complaint and application for a permanent injunction. It alleged that the Robinsons violated the law by operating a motor vehicle wrecking facility without a license and by failing to shield the facility from public view. The DEQ requested that the court (1) permanently enjoin the Robinsons from accepting any additional junk vehicles at their facility, (2) order them to properly shield all junk vehicles currently located on their property or alternatively to remove the vehicles to another licensed facility, and (3) assess a civil penalty pursuant to § 75-10-542(2), MCA, in the amount of $50.00 for each day of each violation until the cessation of all the violations alleged in the complaint. The DEQ served the complaint and summons on the Robinsons on August 20, 1996.

¶7 On September 3,1996, Rod Robinson telephoned the DEQ’s attorney. According to the attorney’s testimony, he advised Robinson to retain an attorney and told him that if Robinson did not answer the complaint he “intended to procure a default [judgment].” He also told Robinson that “if he would submit the application materials [to obtain a license, he] would take no action on the default judgment.” By letter dated September 4, 1996, the attorney memorialized the conversation and stated he would give the Robinsons fifteen days to submit a completed license application. The letter provides in part:

This letter is to memorialize our telephone conversation yesterday, and to advise you of the status of your case. When we spoke, you indicated you had received your Summons, and that you needed additional time in which to erect fencing around you[r] motor vehicle wrecking facility. I told you I would speak to the Program Manager, and would take no action on the Complaint for the time being. Please be advised, the time for you to answer the Complaint in District Court continues to elapse. If you want to contest the allegations in the Complaint, I suggest you hire a lawyer as soon as possible.
However, you seemed to indicate that you wanted to resolve this matter by bringing your facility into compliance with the applicable regulations....
[T]he Program Manager is unwilling to grant you too much leeway simply because of the longstanding duration of the violations and the abortive attempts in the past to achieve compliance through various deals. Here is what the Department is willing to do: You must submit a completed application for a motor vehicle wrecking facility to the Department within 15 days from receipt of this letter. The application materials are enclosed. A partial application will not be acceptable. The only portion of the application that can be completed after the 15-day deadline is the review by the Historical Society, because that entails a process that is largely out of your control.
I intend to procure a Default Judgement against you in District Court after the time allowed for answering the Complaint expires. I will take no action on the Default Judgement so long as you continue to work with the Department to bring your facility into compliance. If you follow through with the licensing, and do not attempt to erect shielding until after the Department has issued a license for the facility (i.e., after the sixty-day in-depth review of the application), I will allow additional time for completion of the shielding according to a regimented compliance schedule. Once the facility is licensed, and the shielding is in place, I will release the Default Judgement.

¶8 On September 9,1996, the DEQ’s attorney telephoned Rod Robinson to confirm that Robinson had received the application materials. He again informed Robinson that the DEQ intended to pursue the default judgment. Subsequently, on September 21,1996, the DEQ received the Robinsons’ application form. The application, however, was incomplete, so on September 23,1996, the DEQ wrote the Robinsons a letter by certified mail enumerating the deficiencies and allowing them an additional two weeks to submit the necessary information. The Robinsons failed to supply any additional information.

¶9 Approximately four weeks later on October 16,1996, when the Robinsons still had not supplied any further information, the DEQ filed an application for entry of default. On October 23, 1996, the DEQ’s attorney telephoned Rod Robinson to question him regarding the status of the application materials. Although the District Court had not yet entered the default, the DEQ’s attorney informed Robinson that it had. He also informed Robinson that the DEQ would not pursue a judgment on the default if the Robinsons cooperated and worked diligently to comply with the law and submitted a completed application. The District Court entered default against the Robinsons on November 12,1996.

¶10 By December 1996, the DEQ still had not received any further information from the Robinsons in support of their application, and it had not heard anything from them. The DEQ’s attorney again attempted to telephone the Robinsons. However, the telephone number had either been changed or disconnected and he was unable to reach them. On December 18,1996, he sent the Robinsons another letter by certified mail. In that letter he recounted the parties’ telephone conversations and noted that it had been approximately two months since the initial deadline for submission of the application materials and since the Robinsons had communicated with the DEQ. He therefore concluded that the Robinsons were no longer attempting to cooperate with the DEQ to bring their facility into compliance. He ended his letter as follows:

Therefore, I am no longer at liberty to work with you. If I do not receive your completed application ten days from the date of this letter, I intend to pursue judgement upon my default in District Court.

¶ 11 The Robinsons did not submit the completed application within ten days. However, approximately one month later, on January 15, 1997, Rod Robinson hand-delivered a license application. Once again, the application was missing certain information that the DEQ had requested in its September 23,1996 letter. Specifically, it was missing the signature of an official with the County Planning or Zoning Board. That same day, the DEQ’s attorney and the junk vehicle program manager met with Rod Robinson to discuss the application. They advised Robinson that the DEQ would give him a final extension of time until February 7,1997, in which to obtain the necessary signature. They also told him that if the completed application was not submitted by that date, the DEQ would apply for a default judgment.

¶12 The Robinsons did not submit the completed application by February 7,1997. The DEQ waited for almost two more months past this deadline, but once again it neither received the completed application nor heard from the Robinsons. Accordingly, on April 2,1997, it filed a request for entry of default judgment. On April 2,1997, almost two years after the DEQ had first attempted on an informal basis to bring the Robinsons’ facility into compliance with the law, the District Court entered the default judgment. It enjoined the Robinsons from maintaining or operating a motor vehicle wrecking facility, and entered judgment in the amount of $68,400.

¶13 The Robinsons subsequently obtained legal counsel, and on April 18,1997, they filed a motion to set aside the default judgment. The District Court conducted an evidentiary hearing on June 5,1997. However, the court did not rule on the motion within 60 days after it was filed, and the motion was thus deemed denied by operation of law. Rule 60(c), M.R.Civ.P. The Robinsons appeal.

DISCUSSION

¶ 14 Did the District Court err when it failed to set aside the default judgment and entry of default?

¶15 The standard of review when a trial court has refused to set aside a judgment is whether there has been a slight abuse of discretion. In re Marriage of Martin (1994), 265 Mont. 95, 99, 874 P.2d 1219, 1222 (citing Lords v. Newman (1984), 212 Mont. 359, 366, 688 P.2d 290, 294). The standard for setting aside a default judgment and entry of default are well-established. The court may set aside a default judgment based upon mistake, inadvertence, surprise, excusable neglect, or any other reason justifying relief. Rules 55(c) and 60(b)(1) and (6), M.R.Civ.P. An entry of default may be set aside “for good cause shown.” Rule 55(c), M.R.Civ.P. To establish “good cause,” the defendant must show that (1) he proceeded with diligence to set aside the default, (2) his neglect was excusable, (3) the judgment will be injurious to the defendant if allowed to stand, and (4) he has a meritorious defense to the plaintiffs cause of action. In re Marriage of Martin, 265 Mont. at 99, 874 P.2d at 1222 (citing Blume v. Metropolitan Life Ins. Co. (1990), 242 Mont. 465, 467, 791 P.2d 784, 786). The policy in this state is to favor a trial or decision on the merits; default judgments are not favored. In re Marriage of Martin, 265 Mont. at 99, 874 P.2d at 1222. However, the burden of proof rests with the defendant seeking to set aside the default. In re Marriage of Martin, 265 Mont. at 99, 874 P.2d at 1222.

¶16 In this case the Robinsons contend that the default judgment and entry of default should be set aside pursuant to Rule 60(b)(1) and (6), M.R.Civ.P. They also argue that this Court “has the power to apply principles of equitable estoppel to set aside the default based on the representations of the DEQ’s agents.” Specifically, the Robinsons maintain that the DEQ repeatedly misled them into believing that as long as they cooperated with the DEQ officials by bringing their facility into compliance with the law, they would not have to get a lawyer and the DEQ would not pursue a default judgment. In particular, they point to the DEQ’s letter dated September 4,1996, wherein the DEQ attorney wrote in part that “I will take no action on the Default Judgement so long as you continue to work with the Department to bring your facility into compliance.... Once the facility is licensed, and the shielding is in place, I will release the Default Judgement.” The Robinsons contend that as lay people they understood this letter to mean that the DEQ would lift all legal process that had been initiated against them so long as they continued to cooperate with the DEQ.

¶17 The Robinsons further insist that they did cooperate with the DEQ. They contend that as of January 15,1997, they had remedied all deficiencies in the application, except that they had not yet obtained the signature or statement from an official from the Zoning Board. On that date, Rod Robinson thus drove to Helena to hand-deliver the application, but the official was not in the office that day. The Robinsons do not contend, however, that they took any steps after that date to either obtain the necessary signature by the final deadline of February 7, 1997, or that they contacted the DEQ to relay any problems with getting the signature.

¶18 In the past, this Court has set aside default judgments on the grounds of mistake or excusable neglect where pro se defendants have misunderstood communications from the opposing attorney or were misled, even if inadvertently, into believing that a cause of action would not be pursued or that they did not have to file an answer to a complaint. See, e.g., In re Marriage of Martin, 265 Mont. at 101-02, 874 P.2d at 1234; In re Marriage of Broere (1994), 263 Mont. 207, 210, 867 P.2d 1092, 1094. However, even were this Court inclined to hold that this case falls into that category of cases where default judgment should be set aside, the Robinsons still have the burden of demonstrating that they have a meritorious defense to the cause of action before the entry of default may be set aside. In re Marriage of Martin, 265 Mont. at 99, 874 P.2d at 1222. In this case, they have not met that burden. We thus need not decide whether the Robinsons’ failure to file an answer to the complaint was the result of mistake or excusable neglect.

¶ 19 When inquiring into whether a party has offered a meritorious defense, it is not the Court’s function to determine factual issues or resolve the merits of the dispute, but instead is to simply determine whether the defendant has presented a prima facie defense. Blume v. Metropolitan Life Ins. Co. (1990), 242 Mont. 465, 470, 791 P.2d 784, 787. In so doing, however, this Court will inquire as to whether the offered defense is meritorious.

¶20 In this case, the Robinsons have offered no defense at all, let alone a meritorious defense, to the charges contained in the complaint. They were charged with violating § 75-10-511(1), MCA, for failing to obtain a license to operate a motor vehicle wrecking facility, and with violating § 7-10-505, MCA and Rule 17.50.202, ARM, for failing to shield their motor vehicle wrecking facility from public view. The Robinsons did not file a proposed answer as part of their motion to set aside the default judgment and entry of default, and at the hearing on their motion to set aside the default judgment they offered no evidence to dispute the charges. At no time have they denied operating a motor vehicle wrecking facility; at no time have they disputed the allegation that they were operating their facility without a license; and at no time have they alleged that their facility was shielded from public view. Indeed, Rod Robinson admitted at the hearing that he had been operating his facility for three years and that he has never obtained a license. In short, the Robinsons have offered no evidence of a meritorious defense to these charges.

¶21 Instead of contesting the charges contained in the complaint, they contend they have a meritorious defense because there was “no rational justification to impose” the civil penalty of $68,400. A quick review of the Robinsons’ arguments in support of this position reveals that their proposed legal defense is not meritorious.

¶22 First, they argue that the District Court lacked jurisdiction to enter the judgment against them, and in so doing it imposed a criminal penalty in violation of their constitutional rights to due process. They maintain that the DEQ usurped the offices of the County Attorney and the Attorney General who alone have the authority to file an information in District Court against them. In support of their position, they cite the dissenting opinion in State v. Mummy (1994), 264 Mont. 272, 871 P.2d 868, and argue that § 75-10-542, MCA, is unconstitutional. Their position is not meritorious.

¶23 The penalty provisions of the Motor Vehicle Recycling and Disposal Act provide:

Penalties. (1) A person who willfully violates this part, except 75-10-520, is guilty of a misdemeanor and upon conviction shall be fined not to exceed $250, imprisoned in the county jail for a term not to exceed 30 days, or both.
(2) A person who violates this part, except 75-10-520, a rule of the department, or an order issued as provided in this part shall be subject to a civil penalty of not more than $50. Each day upon which a violation of this part or a rule or order occurs is a separate violation.

Section 75-10-542, MCA. What the Robinsons fail to acknowledge is that the DEQ’s prayer for relief requested the civil penalty pursuant to § 75-10-542(2), MCA; the DEQ did not file an information or seek to convict the Robinsons of a misdemeanor pursuant to § 75-10-542(1), MCA. Thus, the DEQ did not usurp any authority of the County Attorney or the Attorney General.

¶24 Additionally, Mummey is irrelevant to DEQ’s argument on appeal. In Mummy, the dissent concluded that § 45-5-201, MCA (defining the crime of assault) and § 45-5-202(2)(a), MCA (defining the crime of felony assault) were unconstitutionally vague as applied to the facts of that case, because those statutes failed to give fair warning that a person could be charged and convicted of felony assault rather than misdemeanor assault by kicking someone while wearing a tennis shoe. Mummey, 264 Mont. at 285, 871 P.2d at 875 (Trieweiler, J., dissenting). In this case, on the other hand, the Robinsons have not alleged that the Motor Vehicle Recycling and Disposal Act is unconstitutionally vague in that it fails to give fair warning that certain conduct, such as failing to obtain a license or failing to shield a motor vehicle wrecking facility from public view, can lead to the penalty provided for in § 75-10-542(2), MCA. Moreover, as already pointed out, the Robinsons were not charged with any criminal penalty. The Robinsons failed to demonstrate how their reference to the legal standard for voiding a criminal statute for vagueness has any connection to their argument that the District Court lacked jurisdiction to enter the judgment or violated their constitutional rights to due process. We hold that the Robinsons have not presented a meritorious defense to the cause of action.

¶25 The Robinsons next argue that the complaint itself did not pray for a sum certain as a penalty, and that the District Court should have held a hearing before determining the judgment amount. Although they cite no authority for their position, it appears they base their argument upon Rule 55(b), M.R.Civ.R Rule 55(b)(1), M.R.Civ.R provides that upon affidavit of the amount due, the clerk of court shall enter a judgment by default when the plaintiff’s claim is for “a sum certain or for a sum which can by computation be made certain....” In this case, the complaint requested that the court assess a civil penalty pursuant to § 75-10-542(2), MCA, in the amount of $50.00 for each day of each violation charged in the complaint, until the cessation of all violations. Contrary to the Robinsons’ contention, that request was for a sum that by computation could be made certain by multiplying $50.00 by the number of days of violation for each offense.

¶26 Moreover, the default judgment in this case was entered by the District Court and not by the clerk of court. The restrictions imposed by Rule 55(b)(1), M.R.Civ.P., that default judgment shall be entered only by the clerk when the claim is for a sum certain or which by computation could be made certain thus did not apply. Rule 55(b)(2), M.R.Civ.P., authorizes the court, if necessary, to hold a hearing to determine the amount of damages. In this case, a hearing was not necessary because the court by simple calculation could easily determine the amount of damages. The court did not abuse its discretion in failing to hold a hearing.

¶27 Finally, the Robinsons argue that the default judgment and entry of default should be set aside because the DEQ did not serve them with copies of its application for entry of default, request for entry of default judgment, and other supporting documents. However, when a party against whom a default judgment is sought has not appeared in an action, notice is not required. Rule 55(b), M.R.Civ.P.

¶28 In sum, we hold that the Robinsons have not presented a meritorious defense to the DEQ’s cause of action, and that the District Court did not err in failing to set aside the default judgment and entry of default.

¶29 Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICE GRAY, REGNIER, TRIEWEILER, LEAPHART and DISTRICT JUDGE PURCELL, sitting for JUSTICE NELSON concur.