author: JUSTICE NELSON

text:
    LIBERTY NORTHWEST INSURANCE CORPORATION, Appellant/Insurer for, BRAND S LUMBER, Employer, v. STATE COMPENSATION INSURANCE FUND, Respondent.
    No. 97-691.
    Submitted on Briefs June 11, 1998.
    Decided July 8, 1998.
    1998 MT 169.
    55 St.Rep. 684.
    962 P.2d 1167.
    289 Mont. 475.

      See C.J.S. Workmen’s Compensation § 426.
    For Appellant: Larry W. Jones, Missoula.
    For Respondent: Laurence A. Hubbard, State Compensation Insurance Fund, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

¶1 This is an appeal by Liberty Northwest Insurance Corporation (Liberty) from the October 1, 1997 order of the Workers’ Compensation Court dismissing for lack of subject matter jurisdiction Liberty’s petition filed against the State Compensation Insurance Fund (State Fund). We affirm.

Background

¶2 On August 25,1997, Liberty filed in the Workers’ Compensation Court a Petition for Hearing naming the State Fund as the respondent. In its petition, Liberty alleged that it was the workers’ compensation carrier for Brand S Lumber (Brand S). According to Liberty, Brand S subcontracted with McNeilly Line Logging (McNeilly) for McNeilly to provide Brand S with logs. On November 25, 1994, the State Fund wrote to Brand S stating that McNeilly had applied for coverage with the State Fund and that “we will also notify you if cancellation procedures are initiated for any reason.”

¶3 Liberty’s petition also alleged that on September 25, 1995, McNeilly’s employee, Durwood Park (Park), was injured. Brand S and Liberty then discovered that McNeilly was without workers’ compensation insurance. As a result, Liberty began paying benefits to Park pursuant to § 39-71-405, MCA. Basically, this statute requires that an employer (in this case Brand S) who contracts with an independent contractor (McNeilly) is liable for payment of benefits to the employees of the independent contractor (Park) if the independent contractor has not properly complied with the coverage requirements of the Workers’ Compensation Act (the Act).

¶4 Liberty alleged that prior to Park’s injury the State Fund never notified Brand S that it (the State Fund) did not provide coverage for McNeilly. Liberty also alleged that State Fund’s letter of November 25, 1994, was provided to Brand S for its guidance in its business transactions and that the statement in the letter referred to above was a false statement or, alternatively, made without the reasonable exercise of care or competence in obtaining or communicating this information. Liberty’s petition claimed that State Fund provided the information in its letter to Brand S for its benefit and guidance; that State Fund knew or was charged with knowing that Brand S intended to rely on that information; and that State Fund failed to observe a duty of care to Brand S in supplying information for use in commercial transactions. Finally, Liberty alleged that it demanded that State Fund accept liability and reimburse Liberty for money paid to Park and that State Fund refused.

¶5 In response to Liberty’s petition, State Fund moved to dismiss on the ground that the Workers’ Compensation Court lacked subject matter jurisdiction to decide Liberty’s cause of action because it sounded in tort. The Workers’ Compensation Court agreed and dismissed Liberty’s petition. This appeal followed.

Issue

¶6 The sole issue on appeal is whether the Workers’ Compensation Court has subject matter jurisdiction to hear and determine Liberty’s petition.

Standard of Review

¶7 When deciding a motion to dismiss based on lack of subject matter jurisdiction, a trial court must determine whether the complaint states facts that, if true, would vest the court with subject matter jurisdiction. This conclusion is a question of law. Poteat v. St. Paul Mercury Ins. Co. (1996), 277 Mont. 117, 119, 918 P.2d 677, 679 (citations omitted). Our review of the Workers’ Compensation Court’s conclusions of law is plenary; we simply determine whether its legal conclusions are correct. Heath v. Montana Municipal Ins. Authority, 1998 MT 111, ¶ 9, 288 Mont. 463, ¶ 9, 959 P.2d 480, ¶ 9 (citing Loss v. Lumbermens Mut. Cas. Co. (1997), 282 Mont. 80, 81, 936 P.2d 313, 314).

Discussion

¶8 Liberty contends that the allegations in its petition state a claim under the holding in Jim’s Excavating Service v. HKM Assoc. (1994), 265 Mont. 494, 878 P.2d 248 (adopting Restatement (Second) of Torts § 552 (1977) (information negligently supplied for the guidance of others)) and Restatement (Second) of Torts § 551 (1977) (liability for non-disclosure). Furthermore, Liberty concedes that “[ujndeniably [its] theory ‘sounds in tort.’ ” Notwithstanding, Liberty maintains that the underlying subject matter of its dispute with the State Fund is the State Fund’s alleged liability for the payment of workers’ compensation benefits, and that, accordingly, the Workers’ Compensation Court has subject matter jurisdiction of its cause of action. We agree that Liberty’s cause of action sounds in tort; we disagree, however, with Liberty’s conclusion that the Workers’ Compensation Court has jurisdiction of this cause nonetheless.

¶9 The jurisdiction of the Workers’ Compensation Court is set forth in § 39-71-2905, MCA, (1995), which, in relevant part provides:

Petition to workers’ compensation judge. A claimant or an insurer who has a dispute concerning any benefits under chapter 71 of this title may petition the workers’ compensation judge for a determination of the dispute after satisfying dispute resolution requirements otherwise provided in this chapter [at § 39-71-2401, MCA], [Emphasis added.]

¶10 Even though the Workers’ Compensation Court has broad jurisdictional powers over disputes under the Act, see State ex rel. Uninsured Emp. Fund v. Hunt (1981), 191 Mont. 514, 518-19, 625 P.2d 539, 541-42, and Wunderlich v. Lumbermens Mut. Cas. Co. (1995), 270 Mont. 404, 411, 892 P.2d 563, 567-68, we have never gone so far as to interpret the court’s jurisdiction to encompass common law tort actions. In this regard, we agree with the rationale articulated by the Workers’ Compensation Court in dismissing Liberty’s petition:

While the jurisdiction of the [Workers’ Compensation Court] extends to any matter relating to benefits, including claims between insurers to determine which of them is liable to a claimant, Belton v. Hartford Accident and Indemnity Co, 202 Mont. 384, 658 P.2d 405 (1983), no decision of which [the Workers’ Compensation Court] is aware has ever held or even suggested that [the Workers’ Compensation Court] has jurisdiction over tort actions, even though the tort action might result in a judgment requiring another party to pay, as damages, the amount which an insurer has paid to a claimant under the Workers’ Compensation Act.

¶11 The jurisdictional parameters of the Workers’ Compensation Court are defined by statute as interpreted, from time to time, by the decisions of this Court. Section 39-71-2905, MCA, restricts the jurisdiction of the Workers’ Compensation Court to disputes concerning “any benefits under chapter 71” of Title 39. Our role is simply to ascertain and declare what is in terms or in substance contained in a statute and not to insert what has been omitted or omit what has been inserted. Section 1-2-101, MCA. Clearly, the plain language of this statute does not empower the Workers’ Compensation Court to hear or decide common law tort actions. Indeed, jurisdiction over “all civil matters and cases at law and in equity” — including actions sounding in tort — resides in this State’s courts of general jurisdiction, the district courts. Art. VII, Sec. 4, Mont. Const. Notwithstanding how Liberty may choose to arbitrarily characterize its claims against State Fund, its cause of action is substantively one for damages based upon tort theories of recovery and is not a dispute over benefits payable under the Act.

¶ 12 We hold that the Workers’ Compensation Court correctly determined that, as matter of law, it lacked subject matter jurisdiction over Liberty’s cause of action. Accordingly, the court’s dismissal of Liberty’s petition is affirmed.

JUSTICES TRIEWEILER, GRAY, HUNT and REGNIER concur.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JERRY LANTIS, Defendant and Appellant.
    No. 97-229.
    Submitted on Briefs February 18, 1998.
    Decided July 15, 1998.
    1998 MT 172.
    55 St.Rep. 694.
    962 P.2d 1169.
    289 Mont. 480.

      See C.J.S. Homicide S 21.

      For Appellant: Marvin Anderson, Nathan Homes, Great Falls.
    For Respondent: Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; Brant Light, Cascade County Attorney, Julie Macek, Deputy Cascade County Attorney, Great Falls.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶ 1 Jerry Lantis (Appellant) appeals from a jury verdict, judgment, and sentence of the Eighth Judicial District Court, Cascade County, convicting him of deliberate homicide by accountability. We affirm.

¶2 We address the following issues:

¶3 1. Was the evidence sufficient to support Appellant’s conviction for deliberate homicide by accountability?

¶4 2. Did the District Court abuse its discretion when it refused Defense Proposed Instruction No. 8?

¶5 3. Did the District Court abuse its discretion when it admitted the kitchen knife into evidence?

BACKGROUND

¶6 Appellant came to Great Falls in late January, 1996, to visit his mother. Appellant arranged to stay with Albert Gonzales (Gonzales), a friend of Appellant’s mother’s boyfriend. Also staying with Gonzales was Michael Barnaby (Barnaby) and his wife Susan Gladue. Appellant and Barnaby did not know each other prior to meeting at the Gonzales residence. At about noon on January 25, 1996, Appellant and Barnaby left the Gonzales residence with two quarts of beer. The two played basketball for awhile and ended up driving around the city drinking more beer.

¶7 Later that evening, at about midnight, Appellant and Barnaby decided to visit Garry Bailey (Bailey). Barnaby and Bailey knew each other from serving time together at the Swan River Boot Camp, being involved in the Great Falls Transition Center, and working at a local motel. B ailey was working two jobs and trying to stay sober in order to make a positive change in his life. A co-worker of Bailey’s and Barnaby’s, Delisa Protsman, testified that Bailey did not like Barnaby’s drinking habits and that Bailey and Barnaby had occasional “run-ins” over Barnaby’s alcohol consumption.

¶8 Bailey let Appellant and Barnaby into his apartment and the three sat in the living room and discussed basketball. Bailey had just finished his night shift at the motel and was getting ready for bed. At about 1:30 a.m., Bailey called two friends, Vicki Martinez and Delisa Protsman, and asked them each to give him a wake-up call because his alarm was broken and he had to work the next morning. Neither Vicki nor Delisa heard anything unusual during Bailey’s call.

¶9 At 3:30 a.m., the police officers arrived at Bailey’s apartment in response to a 9-1-1 call made by Donald Fann (Fann) who reported a disturbance there. Fann lived in the apartment directly behind Bailey and was the manager of the apartment building. Fann testified he was awakened by a lot of noise and what he described as the sound of “furniture flying” in Bailey’s apartment. Fann testified that he heard Bailey say, “What are you guys doing this to me for?” In a prior statement made to the police, Fann reported that he heard Bailey say, “What are you doing this for?” The 9-1-1 tape was played for the jury at trial. On the tape, Fann stated, “They’re fighting to beat hell. There’s two guys, I think.”

¶10 When Officers Grubb, Stinar, and Moccasin arrived, they heard voices coming from a corner apartment. Fann met the officers outside and confirmed that the corner apartment was Bailey’s. Fann told Officer Grubb, “It sounds like they’re choking him or something.” The officers knocked on the door and advised the people within to open the door. Barnaby opened the door approximately two inches. Officer Grubb shined his flashlight through the opening and saw fresh blood on Barnaby’s face. Barnaby mentioned an argument between him and his wife, then attempted to shut the door. Officer Grubb placed his foot across the threshold, instructed Barnaby to back away, opened the door, and entered the apartment. Officer Grubb saw that Barnaby’s hands and clothing were bloody. Officer Grubb then saw Appellant sitting in a chair and noticed that Appellant’s face and jacket were also bloody. Officer Grubb asked if there were others in the apartment. Officer Grubb noticed feet in the bedroom and saw Bailey lying unconscious on the bedroom floor.

¶ 11 Officer Grubb instructed Officer Moccasin to call an ambulance and felt Bailey for a pulse. Officer Grubb heard Bailey gurgling but could detect no pulse. As Officer Grubb examined Bailey, Officer Stinar tried to handcuff Barnaby, but Barnaby turned and ran out the door. Appellant followed Barnaby. Officers Grubb, Stinar, and Moccasin left the apartment in pursuit of Appellant and Barnaby. The officers caught and handcuffed the men, whereupon Officer Moccasin discovered a kitchen knife tucked in Appellant’s pants. Upon his arrest, Appellant told Officer Moccasin, “I’m innocent.” Appellant and Barnaby were transported to the police station and Officer Grubb went back to the crime scene. Emergency paramedics arrived but were unsuccessful in reviving Bailey.

¶12 Detectives Steven Lohse, William Bellusci, and Officer David Bissonnette investigated the crime scene. The officers retrieved from Bailey’s apartment the following items which were taken into evidence: a bloody pen cartridge which was found on the living room floor next to the chair where Appellant had been sitting; a broken pen tip found on the bedroom floor near Bailey’s body; hairs found on and near Bailey’s body; the mattress cover, sheets, pillow, quilt, and dust ruffle from the bed; a pair of gloves; Bailey’s wallet; pen fragments; a baseball cap belonging to Appellant which was found lying next to Bailey’s ankle; a pen spring found in the bedroom closet; keys; pieces of the bedroom closet door; and a butcher block knife holder from Bailey’s kitchen.

¶13 Detective Lohse videotaped and photographed the crime scene. The videotape and photographs showed a closet door ripped off its hinges, a lamp and other items knocked to the floor, a poster torn off the wall, clothing strewn about, blood smears on the carpet, dresser, walls, and kitchen counter, and blood stains on the bedding. At the time of death, Bailey was wearing only pants. The photographs of Bailey’s body showed blood on Bailey’s head, face, neck, chest, back, arms, and hands; wounds on the inside of Bailey’s arm, and a large blue ink smear on the side of Bailey’s torso. The photographs also showed a hat, later identified as belonging to Appellant, lying next to Bailey’s left ankle.

¶14 Detective Lohse photographed the butcher block knife holder in Bailey’s kitchen which had two empty slots. At trial, the butcher block and knives were admitted into evidence. Lohse testified that the brand imprinted on the knives in the butcher block, “Regent Sheffield Stainless, England,” exactly matched the brand imprinted on the knife found tucked in Appellant’s pants upon his arrest.

¶15 At the police station, Officer Bissonnette took photographs of Appellant and Barnaby. These photographs showed a large amount of blood on Barnaby’s pants, especially in the crotch area; cuts and scratches on Barnaby’s cheek; blood on Barnaby’s face and hands; blood on Appellant’s face and right hand, and blue ink stains on Appellant’s right hand. Officer Bissonnette also took swabs of blood from Barnaby’s hands and Appellant’s face. Bissonnette then went to the crime scene and took swabs of blood from the bedroom carpet, the dresser, and the kitchen counter. Bissonnette sent all the swabs to the state crime lab for further processing.

¶16 Detective Bellusci assisted in transporting Appellant and Barnaby to the hospital to execute body search warrants. Detective Bellusci testified that Barnaby had a small cut on the inside of his right knee; cuts on his lower right cheek; cuts and scratches on his upper left arm and left knee; and abrasions on his back. Bellusci testified that Appellant had abrasions on his right arm. Photographs of these cuts and abrasions were admitted into evidence. Appellant’s and Barnaby’s clothes were removed and sent to the state crime lab for further processing.

¶17 Appellant was placed in a room at the police station and interviewed by Detective Ronald Steffens. Detective Steffens testified that Appellant had blood on his face and hands. Steffens also noticed a few cuts and ink stains on Appellant’s hands. Appellant waived his Miranda rights and gave a taped statement. Appellant told Steffens that when Barnaby and Bailey were discussing basketball, he fell asleep in a chair and awoke to the sound of the police pounding on the door. Appellant stated that he did not witness any fighting between Barnaby and Bailey, and that if there was a fight, he must have slept through it. Appellant told Steffens that he fled the apartment because Barnaby fled the apartment. Appellant denied being in any fight, and denied having a knife on him when he was arrested. Appellant did not know where the knife found in his pants came from, and he did not know how blood got on his face and hands. Appellant claimed that the small injury on his right hand occurred when he was rebuilding an engine and that the small injury on his back probably occurred when he was playing basketball.

¶18 At trial, Appellant testified on his own behalf and recounted new facts not previously mentioned in his taped statement to Detective Steffens. Appellant testified that he fell asleep in a chair and awoke when Barnaby grabbed him and told him they had to go. Appellant testified that he asked Barnaby why they had to go, to which Barnaby replied, “I think he’s dead. I think I killed him.” Appellant testified that he went to the bedroom, discovered Bailey’s body lying on the floor, and began administering CPR. Appellant stated that Barnaby kicked him and that he rolled partly on top of Bailey. Appellant testified that he and Barnaby then heard knocking on the door and that Barnaby stuck something down his pants. Appellant did not know what was in his pants. Appellant stated that Barnaby then sat him in the chair and told him to be quiet. Appellant testified that he thought the blood on his face came from a nosebleed that occurred when he jumped the apartment railing and hit the ground. Appellant testified that he lied to Detective Steffens because he was scared and because he thought Detective Steffens would let him go home.

¶19 Later in the trial, the State recalled Detective Lohse as a rebuttal witness. Detective Lohse testified that he questioned Appellant’s brother, Glen Lantis (Glen), two days after Bailey’s death. Glen told Detective Lohse that Appellant contacted him and related the following events: that Appellant fell asleep in the chair; that he got blood on himself when Barnaby tripped over him on Barnaby’s way to answer the door; that Barnaby planted the knife on him; and that blood got on his hands when a police officer wiped them with the knife. Glen also told Detective Lohse that Appellant specifically denied ever going into the bedroom.

¶20 The State presented several forensic scientists of the Montana State Crime Lab to comment on the physical evidence in this case. Deborah Hewitt (Hewitt) specializes in print and impression analysis and examined the knife which was found on Appellant. Hewitt testified that the knife had no fingerprints on it suitable for identification. Hewitt also examined the blood stains on Barnaby’s jeans and a photograph taken after the attack of Bailey’s face covered with dried blood. Hewitt testified that the pattern of dried blood imprinted on Bailey’s forehead was consistent in element size and fabric weave with Barnaby’s denim jeans.

¶21 Julie Long (Long) specializes in the typing and identification of body fluids. Long analyzed blood samples from Appellant, Barnaby, and Bailey. She testified that the blood type of each individual was distinct. Long identified blood stains on Appellant’s pants, sweatshirt, and coat as consistent with Bailey’s blood type. The blood on Appellant’s hands was consistent with Bailey’s blood type, and the blood on Appellant’s face was a mixture of both Appellant’s blood and Bailey’s blood. Long testified that the blood stain in the crotch area of Barnaby’s pants was consistent with Bailey’s blood type. Long testified that the blood inside the pen cartridge found on the floor of Bailey’s apartment was also consistent with Bailey’s blood. Long also testified that the blood stains found on the dust ruffle, the blanket, the quilt, the sheets, the pillow, the wall, the dresser, the carpet, the door, and the kitchen counter were all consistent with Bailey’s blood type.

¶22 Alice Ammen (Ammen) specializes in the analysis of certain “trace” evidence such as hairs. Ammen examined hair samples from Appellant and Barnaby and testified that some of the hairs found on Bailey were consistent with both Appellant’s and Barnaby’s hair. She testified that hairs from Bailey’s head were found in the carpet and the sheets and appeared to have been forcibly removed. Ammen testified that the hair combings taken from Appellant and Barnaby contained what appeared to be blood.

¶23 Dr. Jack Henneford (Dr. Henneford), a pathologist, performed the autopsy of Bailey. Dr. Henneford testified that Bailey suffered multiple injuries which he described in detail using autopsy photographs. Dr. Henneford found a large smear of blue ink located on the side of Bailey’s torso, and numerous gouges and scratch marks on Bailey’s face, neck, and chest that he presumed were made with the tip of a ball-point pen. Dr. Henneford identified both single and double track scratch marks, and stated that these marks suggest Bailey was scratched with a pen before and after the tip was broken. Dr. Henneford also testified that the single track scratches could have been caused by the tip of a knife. Dr. Henneford examined the pen cartridge which was found in Bailey’s apartment near the chair where Appellant sat and found a small piece of human tissue inside.

¶24 Dr. Henneford found stretch marks on Bailey’s face, neck, and chest and testified that these stretch marks indicated Bailey’s neck had been hyper extended back or held in a choke hold. Additionally, Dr. Henneford testified that the bruises found on Bailey’s lips, the cuts found on the inside of Bailey’s lips, and Bailey’s black eye, indicated that Bailey suffered blunt-force trauma to the mouth and eye. Dr. Henneford found bruises on the back of Bailey’s head caused by blunt-force trauma, most likely by Bailey’s head hitting the floor. Dr. Henneford testified that the scrape found on Bailey’s knuckle was consistent with a defense-type wound.

¶25 In examining Bailey’s arms, Dr. Henneford identified two wounds on Bailey’s right forearm and lower wrist. Dr. Henneford described the wounds as circular, made up of a series of abrasions, and resulting in the skin being completely raked away. After seeing the other injuries and the broken pen, he testified that it was logical that these wounds were caused by the pen being ground into the skin in a repeated circular motion. On the same arm, he also found a puncture-type wound that he stated was consistent with either the pen or the tip of the knife. Dr. Henneford testified that for these wounds to be inflicted, someone would have had to hold Bailey’s arm out to the side, without allowing the arm to thrash around.

¶26 Dr. Henneford found hemorrhaging around Bailey’s eye, indicating a lack of oxygen. He also found bleeding points on Bailey’s forehead and a bruised larynx, also indicating a lack of oxygen. Dr. Henneford testified that the cause of Bailey’s death was asphyxia, which could have been caused by smothering, compression of the neck, or immobilization of the chest. Dr. Henneford described the process of asphyxia as losing consciousness within the first two to three minutes, brain damage within four minutes, and then death.

¶27 The State called Agent Ward McKay (McKay) of the Montana Department of Justice Criminal Investigation Bureau to offer his interpretation of the crime scene at trial. McKay examined the photographs, the videotape, the physical evidence, and lab reports. McKay also interviewed the investigating officers and Dr. Henneford. Based on his review of the evidence, McKay testified that the struggle occurred only in the bedroom of Bailey’s apartment. He opined that the struggle began near the front of the closet, where Bailey received some type of blows that made him bleed. He opined that the struggle must have proceeded to the bed, because the blue lines on the sheets indicated that the pen was still intact. McKay testified that the pen broke sometime after the struggle left the bed, but before Bailey hit the dresser, where an ink stain was found which was a mirror image of an ink stain found on the side of Bailey’s torso. McKay testified that the struggle ended near where it began with Bailey lying on the floor on top of the closet door. McKay testified that the liquid ink found on the door indicated that the pen broke in front of the dresser and was still being used as a weapon while Bailey was lying on the floor.

¶28 McKay testified that the presence of Appellant’s hat in the room, the significant amount of ink on the fingers of Appellant’s right hand, and Appellant being right-handed, indicated that Appellant was in the bedroom and was involved in the struggle. McKay also observed that Bailey was found with his pants bunched up at the knees indicating that either Bailey raised his legs or someone was trying to pin Bailey down on the floor by holding his legs.

¶29 Appellant presented Robert Kopec (Kopec), a consultant forensic scientist, to testify as an expert in the areas of crime scene reconstruction and blood spatter interpretation. Kopec reviewed the photographs, physical evidence, police reports, lab reports, and McKay’s report. He also interviewed Appellant the night before he testified at trial.

¶30 Kopec agreed with McKay concerning the procession of the struggle from the closet area, to the bed, to the dresser area, and back to the closet area. However, Kopec disagreed with McKay’s opinion that Appellant was involved in the struggle. Kopec defined blood spatter as blood that is moving and hits an object. Kopec testified that there was blood spatter on Barnaby, but none on Appellant. He opined that Appellant would have had blood spatter all over his clothes if he was involved in the crime. Kopec testified that Appellant must have gotten blood on his face when he attempted to resuscitate Bailey, and that the blood and ink on Appellant’s hands were contact transfers from the closet door. Kopec testified that there existed no scientific evidence that Appellant held Bailey down while Barnaby inflicted wounds or tried to suffocate him. He testified that he thought items of evidence had been moved around by emergency personnel or police officers while they were attending to Bailey. Additional facts will be provided as necessary to dispose of the issues raised.

DISCUSSION

Issue 1

¶31 Was the evidence sufficient to support Appellant’s conviction for deliberate homicide by accountability?

¶32 This Court reviews the sufficiency of the evidence to determine whether, upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Bower (1992), 254 Mont. 1, 6, 833 P.2d 1106, 1110.

¶33 Appellant was charged and convicted of deliberate homicide by accountability pursuant to §§ 45-2-301, 45-2-302, and 45-5-102, MCA, which provide in relevant part:

45-2-301. Accountability for conduct of another. A person is responsible for conduct which is an element of an offense if the conduct is either that of the person himself or that of another and he is legally accountable for such conduct as provided in 45-2-302, or both.
45-2-302. When accountability exists. A person is legally accountable for conduct of another when:... (3) either before or during the commission of an offense with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense.
45-5-102. Deliberate homicide. (1) A person commits the offense of deliberate homicide if: (a) the person purposely or knowingly causes the death of another human being.

Taking these statutes in combination, the State, in order to convict Appellant of deliberate homicide by accountability, was required to prove beyond a reasonable doubt that Appellant: (1) had the purpose to promote or facilitate commission of deliberate homicide, and (2) aided or abetted Barnaby in the planning or commission of deliberate homicide.

¶34 Appellant disputes the sufficiency of the evidence relating to mental state for deliberate homicide by accountability. Appellant’s argument is two-fold. First, Appellant argues that the State was required to prove that he engaged in conduct with the conscious object of assisting Barnaby in causing Bailey’s death by asphyxiation. Appellant argues that no rational jury could have found him accountable for Bailey’s death because there is not sufficient evidence that he had the purpose to engage in, or acted in furtherance of, Bailey’s asphyxiation. Second, Appellant argues that even if the State was not required to prove that he had the purpose to engage in Bailey’s asphyxiation, there was still insufficient evidence from which a rational jury could find him accountable for Bailey’s death. We address each argument in turn.

¶35 Appellant’s first argument challenges the requirements for proof of mental state for deliberate homicide by accountability. Appellant points to Dr. Henneford’s testimony that the cause of Bailey’s death was asphyxiation. He then points to the photographs, physical evidence, and witness testimony tending to establish that Barnaby suffocated Bailey either by sitting on his face or choking him, or both. Appellant asserts that he cannot be held accountable for causing Bailey’s death because there is not sufficient evidence that he assisted Barnaby in asphyxiation. Appellant cites State v. Rothacher (1995), 272 Mont. 303, 901 P.2d 82, for his proposition that in order to convict him of deliberate homicide by accountability, the State was required to prove that he had the conscious object to engage in Bailey’s asphyxiation or a similar type of lethal harm. In Rothacher, we held that the mental state for deliberate homicide can be established if the result involves the same or similar kind of harm or injury as contemplated by the defendant, although the actual degree of injury is greater than intended. Rothacher, 272 Mont. at 307, 901 P.2d at 85. In reaching our holding, we relied on § 45-2-201(2)(b), MCA, which provides:

Causal relationship between conduct and result. If purposely or knowingly causing a result is an element of an offense and the result is not within the contemplation or purpose of the offender, either element can nevertheless be established if:... the result involves the same kind of harm or injury as contemplated but the precise harm or injury was different or occurred in a different way, unless the actual result is too remote or accidental to have a bearing on the offender’s liability or on the gravity of the offense.

Rothacher, 272 Mont. at 307, 901 P.2d at 84-85. We reject Appellant’s argument concerning the mental state necessary to prove deliberate homicide by accountability for two reasons.

¶36 First, Rothacher is inapposite for the position advanced by Appellant. In arguing that Rothacher applies to deliberate homicide by accountability, Appellant ignores the distinction between deliberate homicide and deliberate homicide by accountability, and how § 45-2-201(2)(b), MCA, applies differently to each offense. For deliberate homicide, the “result” referenced in § 45-2-201(2)(b), MCA, is the death of another human being. However, for deliberate homicide by accountability, the “result” referenced in § 45-2-201(2)(b), MCA, is not the death of another human being, but rather some act designed to promote or facilitate causing the death of another human being. Because the application of § 45-2-20 l(2)(b), MCA, to each offense is distinguishable, Rothacher is distinguishable from the instant case.

¶37 Second, Appellant’s position flows from a narrow interpretation of causation and runs contrary to the theory and settled law of accountability. Regarding accountability in general, we have held:

A true accomplice is one who knowingly, voluntarily and with common intent with the principal offender unites in the commission of a crime .... One may be an accomplice by being present and joining in the criminal act, by aiding and abetting another in its commission, or not being present, by advising and encouraging its commission; but knowledge and voluntary actions are essential in order to impute guilt.

State v. Nordahl (1984), 208 Mont. 513, 517, 679 P.2d 241, 243 (citations omitted). The key words in the above quotation are impute guilt. “Impute” means “to attribute vicariously,” Black’s Law Dictionary 682 (5th ed. 1979), or “to credit by transferal to the account of someone other than the initiating agent.” Webster’s Third New International Dictionary 1139 (1971). Accountability is “merely a conduit by which one is held criminally responsible for the acts of another.” Matter of B.D.C. (1984), 211 Mont. 216, 220-21, 687 P.2d 655, 657. We further commented upon the theory of accountability in State v. Gollehon (1993), 262 Mont. 1, 25-26, 864 P.2d 249, 265:

Accountability ... is a connection provided by our legislature that gives courts and juries a way to make people “accountable” or responsible for a crime that has definitely been committed. The responsibility for the crime attaches by way of acts committed by the accused. The accused either participated in a communal crime or aided, abetted another, or planned the crime.

¶3 8 Appellant seeks to change the theory of accountability by introducing varying degrees of causation or culpability into the accountability statute. Appellant argues that he is less culpable because he did not engage in suffocating Bailey, and that because of this lesser degree of culpability, he cannot be held accountable for Bailey’s death. We specifically rejected such an argument in Gollehon. We stated:

[0]ur legislature never meant to dilute responsibility for a criminal act when that act was committed by more than one person, but instead meant that all those participating in a crime be “accountable” for the whole of the responsibility of that act.
If a person has conspired to commit and facilitated the commission by another of a criminal act, he is no less guilty because he did not “pull the trigger.”

Gollehon, 262 Mont. at 26, 27, 864 P.2d at 265, 266 (citations omittedXemphasis in original).

¶39 In determining the level of involvement an accused must have to be found guilty of a crime by accountability, we have held that although mere presence at the scene of a crime is insufficient to prove accountability, “the accused need not take an active part in any overt criminal acts to be adjudged criminally liable for the acts.” State v. Miller (1988), 231 Mont. 497, 511, 757 P.2d 1275, 1284 (citations omitted). In other words, an accused’s act of aiding or abetting under the accountability statute need not be criminal in nature; it need only promote or facilitate commission of the crime. Compare Miller, 231 Mont. at 509-12, 757 P.2d at 1283-84 (defendant’s convictions of deliberate homicide under the felony murder rule and felony assault by accountability were upheld where, even though the evidence did not create a prima facie case against the defendant, it tended to connect him to the charged crimes); and State v. Dess (1984), 207 Mont. 468, 473, 674 P.2d 502, 505 (defendant’s conviction for theft by accountability was upheld where although he did not physically steal the bicycles, he was seen in a car following the perpetrators who were riding the stolen bicycles, and was later stopped with one of the bicycles in the back of his car); with State v. Fish (1980), 190 Mont. 461, 469-71, 621 P.2d 1072, 1077-78 (defendant’s conviction for attempted burglary by accountability was overturned where the only evidence against defendant was testimony that he had been seen with the perpetrators earlier in the evening, and that he knocked on the victim’s door but then got off the porch and watched the perpetrators kick down the door).

¶40 Upon the above statutory and case law, we conclude that Appellant’s argument that the State was required to prove that he acted with the conscious object to engage in Bailey’s asphyxiation is groundless. We turn then to Appellant’s second argument.

¶41 Appellant argues that even if we reject his argument concerning Rothacher and the mental state for deliberate homicide by accountability, there was still insufficient evidence from which a rational jury could find that Appellant had the purpose to promote or facilitate commission of deliberate homicide, or that he aided and abetted Barnaby in the planning or commission of deliberate homicide. Appellant argues that at best the evidence shows he was present in the bedroom, he got blood on his face and ink transfers on his hand from attempting to resuscitate Bailey, and he fled the scene because he was scared. The State counters that Appellant’s challenge to the sufficiency of the evidence must fail as it is wholly dependent on his version of the facts, which the jury was entitled to reject. We agree with the State.

¶42 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.

As in Bower, the jury in the instant case 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.

¶43 The State produced sufficient evidence from which a jury could find that Appellant had the purpose to promote or facilitate commission of deliberate homicide, and aided and abetted Barnaby in the commission of deliberate homicide. The blood on Appellant’s face was consistent with Bailey’s blood and also Appellant’s own blood, suggesting that Appellant received some injury during the incident. Appellant also had blood in his hair, which was consistent with the State’s theory that Appellant was an active participant in the crime and did not merely attempt to resuscitate Bailey. Some of the hairs found on Bailey were consistent with Appellant’s, Appellant’s hat was found near Bailey’s feet, and a bloody kitchen knife was found tucked into Appellant’s pants upon arrest.

¶44 The broken ink pen which was used to injure Bailey was found next to the chair where Appellant had been sitting when police officers arrived. Photographs of Appellant taken after the incident showed ink stains primarily on Appellant’s right hand. Appellant was right-handed. Pen fragments and a broken pen tip were found near Bailey’s body. Dr. Henneford found both single and double track scratch marks on Bailey suggesting that the marks were made before and after the pen tip broke. Dr. Henneford described circular wounds on Bailey’s arms which were likely inflicted with the ink pen while Bailey was immobilized on the floor with his arm out to the side, suggesting that one person probably held Bailey down while the other gouged marks in Bailey’s skin. Bailey was found with his pant legs bunched up to his knees, indicating that one person might have tried to pin Bailey down for the other person.

¶45 It is also significant that Appellant’s version of events at trial was not consistent with previous statements he made to Detective Steffens and his brother, Glen. Appellant initially told Detective Steffens that he slept through the whole incident, and was unaware of what happened until shortly before the police arrived. Appellant told Detective Steffens that he did not know where the knife found in his pants came from, and did not know how blood got on his face. Two days later, Appellant told his brother that he got blood on himself when Barnaby tripped over him on his way to answer the door; that Barnaby planted the knife on him; and that he got blood on his hands when a police officer wiped them with the knife. It was not until trial that Appellant claimed that he tried to resuscitate Bailey, causing the transfer of blood to his face and ink to his hands. In light of these conflicting statements, the jury was entitled to question Appellant’s credibility and reject his version of events at trial.

¶46 Appellant argues that it was improper for the jury to infer from circumstantial evidence alone that he had the common purpose with Barnaby to promote or facilitate commission of deliberate homicide. “[W]e have held numerous times that circumstantial evidence is sufficient to support a conviction.” Miller, 231 Mont. at 511-12, 757 P.2d at 1284. In State v. Bradford (1984), 210 Mont. 130, 142, 683 P.2d 924, 930, we upheld a jury’s finding of common purpose based on circumstantial evidence. The State also notes that Montana’s accountability statutes, §§ 45-2-301 through 303, MCA, were taken from the Illinois Criminal Code sections 5-1 through 5-3 (1961), and that Illinois has held that proof of common purpose need not be supported by words of agreement or direct evidence, but can be inferred from circumstantial evidence. See People v. Hubbard (Ill. 1972), 281 N.E.2d 767, 770. This Court has already determined that when Montana adopts statutes from other states, we will also adopt the case law from that state which interprets the statute. State v. Tower (1994), 267 Mont. 63, 67, 881 P.2d 1317, 1319; State v. Murphy (1977), 174 Mont. 307, 311, 570 P.2d 1103, 1105. We hold that it was proper for the jury to infer from circumstantial evidence that Appellant had the common purpose with Barnaby to promote or facilitate commission of deliberate homicide.

Issue 2

¶47 Did the District Court abuse its discretion when it refused Defense Proposed Jury Instruction No. 8?

¶48 We review jury instructions in a criminal case to determine whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Goulet (1997), 283 Mont. 38, 41, 938 P.2d 1330, 1332. The district court has broad discretion in instructing the jury, and, while the defendant is entitled to have instructions on his theory of the case, he is not entitled to an instruction concerning every nuance of his argument. Goulet, 283 Mont. at 41, 938 P.2d at 1332.

¶49 Appellant offered the following proposed instruction No. 8 which provides:

To convict Jerry Lantis of Accountability (Deliberate Homicide) by being legally accountable for the conduct of Michael Barnaby, the State must prove the following elements:
1. That the crime of Deliberate Homicide as defined in Instruction No._has been committed by Michael Barnaby;
2. That Jerry Lantis solicited, aided, abetted, agreed or attempted to aid Michael Barnaby in the planning or commission of Deliberate Homicide;
3. That Jerry Lantis participated either before or during commission of Deliberate Homicide; and
4. That Jerry Lantis had the concurrent specific purpose to promote or facilitate the commission of Deliberate Homicide.

The District Court refused this jury instruction on the grounds that it was cumulative, and that the State’s Proposed Jury Instruction Nos. 14 and 22, as modified by the court, adequately instructed the jury on deliberate homicide by accountability. State Proposed InstructionNo. 14 (given as Court’s Instruction No. 23) provides in relevant part:

To convict the defendant of ACCOUNTABILITY FOR DELIBERATE HOMICIDE by being legally accountable for the conduct of another, the State must prove the following elements:
1. That the crime of DELIBERATE HOMICIDE as defined in Instruction No. 18 has been committed; and
2. that the defendant, with common purpose with the principal offender, either before or during the commission of an offense, and with the purpose to promote or facilitate such commission solicits, aids, abets, agrees, or attempts to aid, such other person in the planning or commission of the offense.

State Proposed Instruction No. 22 (given as Court’s Instruction No. 22) set out verbatim the language of § 45-2-201(2)(b), MCA, and added the following caveat: ‘You may not infer purpose or knowledge on the part of Mr. Lantis solely from actions of Mr. Barnaby.”

¶50 Appellant claims that the given instructions misstated the law on mental state for deliberate homicide by accountability. Citing Rothacher, Appellant argues that the jury should have been instructed that in order to convict him of deliberate homicide by accountability, the State was required to prove that he had the specific intent to promote or facilitate commission of deliberate homicide. We reject Appellant’s argument for the reasons already discussed in Issue 1 of this Opinion. Having reviewed the given instructions, we con-elude that they correctly and adequately instructed the jury on the mental state for deliberate homicide by accountability.

Issue 3

¶51 Did the District Court abuse its discretion when it admitted the kitchen knife into evidence?

¶52 The standard of review for evidentiary rulings is whether the district court abused its discretion. Gollehon, 262 Mont. at 301, 864 P.2d at 1263. The determination of whether evidence is relevant and admissible is left to the sound discretion of the trial judge and will not be overturned absent a showing of abuse of discretion. Gollehon, 262 Mont. at 301, 864 P.2d at 1263.

¶53 During its case in chief, the State admitted into evidence the knife found on Appellant at the time he was arrested. Appellant objected to this evidence on grounds of relevancy, but the court overruled his objection. On appeal, without citation to authority, Appellant argues that the knife was not relevant to the issues in this case because Bailey died of asphyxiation, and because there was no evidence that the knife was used to attack Bailey. Appellant’s argument is without merit.

¶54 “Relevant evidence” is defined as:

evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Relevant evidence may include evidence bearing upon the credibility of a witness ....

Rule 401, M.R.Evid. The knife found on Appellant matched the set of knives found in Bailey’s kitchen. The knife had Bailey’s blood on it. Dr. Henneford testified that the single track scratch marks found on Bailey’s body could have been made with the tip of a knife. These facts tend to connect Appellant to the crime scene and suggest his involvement in the crime. We conclude that the presence of the bloody knife on Appellant after he fled Bailey’s apartment is relevant to the issue of whether Appellant aided and abetted Barnaby in the commission of deliberate homicide.

¶55 Appellant argues that even if relevant, the prejudicial effect of the knife outweighed any probative value. Rule 403, M.R.Evid. provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury ....

Without citation to authority, Appellant contends that admission of the knife into evidence mislead the jury as it permitted the jury to “jump to the conclusion” that the knife was somehow involved in the murder when the evidence showed that Bailey died of asphyxiation. Appellant’s argument is unpersuasive. In light of the evidence pertaining to the knife previously discussed, any inference by the jury that the knife was somehow involved in the murder is justified. In any violent homicide, most evidence linking the defendant to the crime is likely to be somewhat prejudicial. In the instant case, admission of the knife was not so prejudicial as to warrant exclusion under Rule 403, M.R.Evid. We conclude that the District Court did not abuse its discretion in admitting the knife into evidence.

¶56 Affirmed.

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


author: JUSTICE LEAPHART

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DONITA HERRERA, Defendant and Appellant.
    No. 97-436.
    Submitted on Briefs May 14, 1998.
    Decided July 15, 1998.
    1998 MT 173.
    55 St.Rep. 703.
    962 P.2d 1180.
    289 Mont. 499.

      See C.J.S. Criminal Law § 1682.

      For Appellant: Carrie L. Garber, Yellowstone County Public Defenders Office, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Ass’t Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Billings.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 Donita Herrera (Donita) appeals from the decision of the Thirteenth Judicial District Court, Yellowstone County, granting in part and denying in part her motion to suppress evidence obtained during a search of an automobile and her purse. In addition, Donita requests that this Court review the issue of whether the officers legally stopped the automobile in which Donita was a passenger. Donita asserts that she presented this issue to the District Court during an evidentiary hearing, but that the District Court failed to address the issue in its findings of fact and conclusions of law. We deny Donita’s request to review the issue of the legality of the automobile stop and affirm the decision of the District Court denying Donita’s motion to suppress.

Factual and Procedural Background

¶2 On the evening of June 13,1996, Donita went to Gabby’s Casino where she met her friend Anne Ditzel (Anne). Anne was accompanied by Arnold Muhs (Arnold). Donita asked Anne if she would give her a ride to a friend’s house. They left Gabby’s at approximately 10:00 p.m. Anne was driving, Donita sat in the front passenger seat and Arnold sat in the backseat. They made one stop at the Lobby Liquor Store, then proceeded south on 27th Street.

¶3 Officer Hirst was stopped at the corner of 1st Avenue and 27th Street when he received a call from an undercover officer. The undercover officer indicated that a blue Dodge hatchback was traveling two vehicles in front of Officer Hirst. The undercover officer further advised Officer Hirst that he “knew who the person was in the car” and that Officer Hirst “should pay particular attention to that person.” Officer Hirst followed the blue vehicle until it turned down an alley. Officer Hirst testified that, when the car turned into the alley, the driver shut off the headlights then continued to travel through the alley. Officer Hirst stopped at the north end of the alley while he observed Anne’s vehicle.

¶4 Anne testified that she drove into the alley and then into the driveway which belonged to John, a mutual friend of Anne and Donita. Anne parked the car, turned off the headlights and went to knock on the door to see if anyone was home. When no one answered the door, Anne returned to the vehicle, backed out of the driveway, proceeded down the alley and turned right onto the street.

¶5 Upon seeing Anne’s vehicle pull out of the parking spot, Officer Hirst began following Anne’s vehicle through the alley. When Anne turned onto the street, Officer Hirst activated his overhead lights and pulled the vehicle over. Officer Hirst testified at trial that he pulled the vehicle over based on his earlier observation of the vehicle traveling at night without its headlights.

¶6 Officer Hirst approached the vehicle and requested Anne’s driver’s license. Anne indicated that she did not have identification, and gave the officer a false name. About this time, Officer Paharik arrived on the scene. Officer Paharik recognized Anne and told Officer Hirst her correct identity. Anne explained that she gave a false name because she believed there was an outstanding warrant for her arrest. Officer Hirst placed Anne under arrest for the offense of obstructing a peace officer and based on the outstanding warrant.

¶ 7 While Officer Hirst placed Anne in the back of his patrol car, Officer Paharik went to the passenger side of the vehicle to question Donita. Donita identified herself and gave Officer Paharik her birth date, but explained that she did not have any identification with her. Officer Paharik asked Donita to exit the vehicle. He testified that when he shined his flashlight through the windshield, he saw, underneath the driver’s seat, a rolled up baggie which contained a brownish powdery substance and a brown pouch next to the baggie. Upon seeing the suspicious items, Officer Paharik began searching the vehicle. Inside the pouch, Officer Paharik found syringes, a silver container and what he described as a “coke spoon.”

¶8 Donita, believing she was free to leave the scene, began to walk away to call for a ride. However, when Officer Paharik found the drug paraphernalia, he requested that she come back and remain near the vehicle. Donita returned to the scene, set her purse and sack of beer on the hood of the car and waited while Officer Paharik conducted the search. Officer Paharik found what he described as a black checkbook cover sitting on the floor of the passenger side where Donita had been sitting. Although he testified that he did not notice anything suspicious about the checkbook cover, he found syringes when he looked inside. When he finished searching the passenger side of the vehicle, Officer Paharik indicated that he needed to check Donita’s purse for identification. Officer Paharik testified that Donita consented to letting him search her purse. In addition, Officer Paharik testified that when he found bindles containing a yellowish white substance inside the purse, Donita asked if he needed a warrant to look in her purse. Donita, on the other hand, testified that as soon as Officer Paharik sought permission to look in her purse, she asked if he needed a warrant. Donita further testified that Officer Paharik responded that he did not need a warrant because he could search the purse as part of the search of the car.

¶9 After finding the bindles in Donita’s purse, Officer Paharik called a third officer to the scene. The third officer placed Donita under arrest for possession of dangerous drugs and transported her to the Yellowstone County Detention Facility for processing. Donita was charged with one count of possessing dangerous drugs, a felony, and one count of possessing drug paraphernalia, a misdemeanor.

¶ 10 Donita moved to suppress the evidence obtained by the officers, arguing that the search of her purse was conducted without a warrant and not pursuant to an exception to the warrant requirement. Donita’s motion did not challenge the legality of the traffic stop. Although Anne and Donita were charged separately, the District Court held a combined evidentiary hearing for Anne and Donita. Anne, in her motion to suppress, had raised the issue of whether the investigatory stop by Officer Hirst was legal. Therefore, during the course of the hearing, the issue of whether Officer Hirst had grounds for initiating the stop of the vehicle was discussed. As a result, Donita addressed the issue in her proposed findings of fact and conclusions of law. The District Court, however, despite holding a combined hearing, issued separate findings and conclusions for Anne and Donita. In its findings of fact and conclusions of law on Donita’s motion, the court limited its order to the suppression issues presented by Donita in her motion and did not discuss the issue of whether Officer Hirst had grounds to stop the vehicle. The District Court suppressed the drug paraphernalia found in the checkbook cover, but determined that Donita consented to the search of her purse. Thereafter, Donita pled guilty to the offense of possessing dangerous drugs, reserving her right to appeal the portion of the District Court’s order denying her motion to suppress. Donita presents three issues on appeal:

¶11 1) Did the District Court err in failing to address the issue of whether Officer Hirst had grounds to stop the vehicle?

¶12 2) Did the District Court err in holding that Officer Hirst had grounds to stop the vehicle?

¶ 13 3) Did the District Court err in denying Donita’s motion to suppress the evidence found in her purse?

Discussion

I

¶14 1) Did the District Court err in failing to address the issue of whether Officer Hirst had grounds to stop the vehicle?

f 15 Donita argues that the District Court erred in failing to address the issue of whether Officer Hirst had a reasonable, articulable suspicion warranting the stop of Anne’s vehicle. In support of her argument, Donita asserts that the record reveals that the validity of the traffic stop was at issue at the evidentiary hearing. In addition, Donita presented proposed findings of fact and conclusions of law which stated that the traffic stop was not supported by a reasonable, articulable suspicion that the occupants of the car had been or were engaged in criminal activity. Alternatively, Donita requests that this Court review the issue pursuant to the plain error doctrine.

¶16 The State of Montana (State), however, argues that Donita did not properly raise or preserve this issue in the District Court. The State contends that this Court should deny Donita’s request for review of this issue for two reasons. First, Donita did not raise the issue in her motion to suppress. The State argues that the reason the issue was litigated at the hearing is that Anne raised the issue in her motion to suppress. The State points out that the District Court made findings and conclusions regarding the issue in its order denying Anne’s motions to suppress, but did not address the issue in its findings and conclusions on Donita’s motion. Second, Donita did not object to the alleged oversight and thereby failed to give the District Court an opportunity to amend its findings and conclusions. Rather, she entered her guilty plea and now raises the issue for the first time on appeal.

¶17 Section 46-20-104, MCA, provides that an appeal for purposes of criminal procedure “may be taken by the defendant only from a final judgment of conviction and orders after judgment which affect the substantial rights of the defendant.” Moreover, that section provides that “[ujpon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2).” Section 46-20-104(2), MCA (emphasis added). This Court has clearly established that it will consider for review only those issues raised in the pleadings or otherwise before the district court. Matter of Estate of Rogers (1986), 223 Mont. 78, 82, 725 P.2d 544, 546. We explained in State v. Walker (1966), 148 Mont. 216, 223, 419 P.2d 300, 304, and affirmed in State v. Long (1986), 223 Mont 502, 726 P.2d 1364, that “[a] District Court will not be put in error where it was not accorded an opportunity to correct itself.” Long, 223 Mont. at 506, 726 P.2d at 1366. Thus, we determine that Donita’s failure to raise the issue of the legality of the traffic stop in her motion to suppress and her further failure to give the District Court an opportunity to amend its findings and conclusions preclude her from raising this issue on appeal.

¶18 We also reject Donita’s alternative request that we review the issue pursuant to the plain error doctrine. As a general rule, this Court will not review an issue which the defendant fails to present to the district court or an issue to which the defendant fails to timely object. State v. Thompson (1993), 259 Mont. 62, 65, 853 P.2d 1188, 1190. However, one exception to that general rule is the plain error doctrine set forth at § 46-20-701, MCA.

¶19 Section 46-20-701(2), MCA, provides:

Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. A claim alleging an error affecting jurisdictional or constitutional rights may not be noticed on appeal if the alleged error was not objected to as provided in 46-20-104, unless the convicted person establishes that the error was prejudicial as to the convicted person’s guilt or punishment and that:
(a) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the convicted person or the convicted person’s attorney that prevented the claim from being raised and disposed of; or
(c) material and controlling facts upon which the claim is predicated were not known to the convicted person or the convicted person’s attorney and could not have been ascertained by the exercise of reasonable diligence.

Donita states that her “fundamental constitutional right against unreasonable searches and seizures is implicated by the investigative traffic stop.” Thus, she contends that she raised an alleged error implicating a constitutional right. However, we determine that Donita fails to satisfy the required elements of § 46-20-701(2), MCA. Specifically, the material and controlling facts regarding the traffic stop were known to Donita and her attorney at the time of filing her motion to suppress. Yet, Donita failed to assert a claim regarding the traffic stop at the time of filing that motion. Second, Donita has not alleged that she was prevented from raising the claim due to suppression of evidence by the prosecutor, the judge or law enforcement.

¶20 Having failed to satisfy the requirements of § 46-20-701, MCA, we refuse to review Donita’s claim pursuant to the plain error doctrine. Moreover, we reject Donita’s request that we invoke our common law plain error review pursuant to State v. Finley (1996), 276 Mont. 126, 137-38, 915 P.2d 208, 215. As we explained in Finley, we will use our common law plain error review sparingly and only where failing to review a claimed error may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the proceedings, or may compromise the integrity of the judicial process. Finley, 276 Mont. at 137, 915 P.2d at 215. This is not such a case.

¶21 In sum, we determine that Donita did not properly raise the issue of the legality of the traffic stop in her motion to suppress, nor did she object to the District Court’s failure to address the issue in its findings and conclusions. Therefore, Donita is precluded from raising the issue on appeal. Furthermore, we determine that Donita fails to satisfy the prerequisites for obtaining a plain error review. We hold that the District Court did not err in failing to address the issue of whether Officer Hirst had grounds to stop the vehicle. Accordingly, we do not reach the merits of Donita’s second issue.

II

¶22 3) Did the District Court err in denying Donita’s motion to suppress the evidence found in her purse?

¶23 The Fourth Amendment of the United States Constitution and Article II, Section 11 of the Montana Constitution prohibit searches and seizures by law enforcement without a valid warrant. In addition, Montana statutory law at § 46-5-101, MCA, provides that “[a] search of a person, object, or place may be made and evidence, contraband, and persons may be seized in accordance with Title 46 when a search is made: (1) by the authority of a search warrant; or (2) in accordance with judicially recognized exceptions to the warrant requirement.” Consent to a search is a judicially recognized exception to the warrant requirement. State v. Kim (1989), 239 Mont. 189, 779 P.2d 512. The State has the burden of showing that the defendant’s consent was given voluntarily. Kim, 239 Mont. at 196, 779 P.2d at 517. “Voluntariness is a factual issue and is determined from the totality of the circumstances.” Kim, 239 Mont. at 196, 779 P.2d at 517 (citing Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248-49, 93 S.Ct. 2041, 2058-59, 36 L.Ed.2d 854).

¶24 The parties agree that Officer Paharik searched Donita’s purse without a warrant. Donita argues that the search was not conducted pursuant to a judicially recognized exception to the warrant requirement and therefore the search was illegal. In support of her argument, Donita contends that when Officer Paharik requested to look in her purse, she asked Officer Paharik if he needed a warrant and he responded that he did not. Donita also contends that she did not consent to Officer Paharik’s search of her purse. Officer Paharik, on the other hand, testified that after finding the drugs and drug paraphernalia in the vehicle, he asked to look in Donita’s purse. Officer Paharik further testified that Donita consented to the search and it was not until after he found the bindles in Donita’s purse that she asked him if he needed a warrant.

¶25 The District Court, based on the evidence presented at the hearing, concluded that Donita voluntarily permitted the officer to search her purse and thus the evidence was admissible. When considering a court’s ruling on a motion to suppress, this Court considers whether the record contains substantial credible evidence to support the district court’s findings, and whether those findings were applied correctly as a matter of law. Kim, 239 Mont at 196, 779 P.2d at 517 (citing State v. Beach (1985), 217 Mont. 132, 147, 705 P.2d 94, 103). The trial court is the finder of fact at a suppression hearing and the credibility of the witnesses is properly determined by the trial court that heard the testimony and observed the witnesses. Kim, 239 Mont. at 196, 779 P.2d at 517.

¶26 Donita contends that the District Court’s conclusions regarding the voluntariness of her consent are not supported by her testimony at the hearing. Specifically, she argues that, while she may not have felt compelled to remain at the scene initially, after Officer Paharik asked her to return and stand by the car, she did not feel free to leave. Additionally, Donita maintains that Officer Paharik attempted to manipulate her into consenting to his search of the purse by telling her that he did not need a warrant.

¶27 The State argues that the District Court properly concluded that, based on the totality of the circumstances, Donita’s consent was given voluntarily. The State points to Officer Paharik’s testimony that he did not order Donita to give him the purse, nor did he coerce her. It was his testimony that Donita consented to the search of the purse. Furthermore, Officer Paharik recalled that it was not until after he found the bindles in Donita’s purse that she asked him if he needed a warrant.

¶28 The issue before the District Court was one of credibility. The District Court found Officer Paharik’s recollection of the events more credible than Donita’s. We determine that the record contains substantial credible evidence to support the District Court’s findings. Since the District Court is in a better position to determine the credibility of the witnesses, this Court will not disturb the District Court’s findings if they are supported by substantial credible evidence. We determine that the District Court did not err in finding that, based on the totality of the circumstances, Donita voluntarily consented to the search of her purse. Accordingly, we hold that the District Court did not err in denying Donita’s motion to suppress. Affirmed.

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


author: JUSTICE GRAY

text:
    IN THE MATTER OF THE ADOPTION OF H.M.O.
    No. 97-262.
    Submitted on Briefs March 26, 1998.
    Decided July 16, 1998.
    1998 MT 175.
    55 St.Rep. 710.
    962 P.2d 1191.
    289 Mont. 509.

      See C.J.S. Evidence S 527.

      For Appellant: Carl White, Attorney at Law, Havre.
    For Respondent: Chris Christensen, Attorney at Law, Conrad.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶1 Barbara R. (Barbara) appeals from the order and judgment entered by the Twelfth Judicial District Court, Chouteau County, which terminated her parental rights and granted the petition of Shannen R. (Shannen) to adopt H.M.O. We reverse and remand with instructions.

ISSUES

¶2 Barbara presents the following issues on appeal:

¶3 1. Did the District Court err by applying a retroactive child support obligation to the one-year period prior to the filing of the petition for adoption for purposes of granting the petition without Barbara’s consent?

¶4 2. Does § 40-8-lll(l)(a)(v), MCA (1995), allow for a de minimis exception to the rule that a parent’s consent to adoption is not required when a parent, although able to do so, fails to pay child support for the year preceding the petition for adoption?

¶5 3. Did the District Court err under the Indian Child Welfare Act by granting the petition for adoption absent supporting testimony from a qualified expert witness?

¶6 4. Does sufficient evidence support the District Court’s finding that Barbara’s continued joint custody likely would result in serious emotional or physical damage to H.M.O.?

Because our resolution of issue 3 is dispositive, we do not address Barbara’s other issues.

BACKGROUND

¶7 Barbara married Randy R. (Randy) in November of 1990. They separated after six months and H.M.O. was born five and one-half months later. Sometime after H.M.O.’s birth, Randy requested a paternity test which established that he was H.M.O.’s father. Barbara and Randy’s marriage was dissolved in Cascade County on July 21, 1993. They were awarded joint legal custody of H.M.O., with Barbara designated as the physical custodian. Randy was awarded reasonable visitation rights. Child support was determined and Randy paid regularly until he took physical custody of H.M.O. on April 15, 1994.

¶8 On that date, Heidi — Barbara’s teenage daughter from a previous marriage — called her stepmother, Karen, and asked to be picked up from softball practice. She told Karen that she was tired of Barbara’s drinking and of being H.M.O.’s care giver and wanted to stay with her father and Karen. Karen then called Shannen, Randy’s live-in girlfriend, reported that Barbara was drinking again and suggested that Shannen pick up H.M.O. because she might be left unsupervised. Shannen contacted Randy, who called the Great Falls Police Department. Officer Christopher Paul Hickman (Officer Hickman) responded and met Shannen and Karen at Barbara’s apartment. Barbara’s babysitter arrived with H.M.O., called Barbara, and let everyone into Barbara’s apartment. Officer Hickman told Karen and Shannen that it was better if Heidi and H.M.O. went to stay with their respective fathers, since both fathers had joint custody of their daughters.

¶9 Barbara did not return to her apartment and Officer Hickman tracked her down at a house party. He observed that she was highly intoxicated, and informed her that her daughters were with their fathers. Barbara responded that now maybe she could get a life.

¶10 Barbara and Randy entered into a stipulation on May 9,1994, which gave Randy residential custody of H.M.O. with reasonable visitation rights in Barbara. The Cascade County district court adopted the stipulation by order the following day and placed restrictions on Barbara’s visitation, including that she could not drink in H.M.O.’s presence and could not have overnight visitation until her continued abstinence from alcohol had been proven to the court. In addition, Randy’s child support obligation was retroactively terminated as of April 15,1994. Finally, the district court ordered that Barbara’s support obligation be determined.

¶ 11 Barbara attempted to contact H.M.O. several times during the subsequent two and one-half years. Each time, Randy and Shannen denied Barbara any contact with H.M.O.

¶12 Randy initiated child support proceedings sometime in 1994, but Barbara could not be located and served until April of 1995. Shortly thereafter, Randy terminated the child support proceedings because he and Shannen had married in January of 1995, and Shannen wanted to adopt H.M.O. Shannen filed her petition for adoption in the Twelfth Judicial District Court, Chouteau County, on April 19,1995, alleging that Barbara’s consent to the adoption was not necessary because Barbara had not paid child support during the prior year and had abandoned H.M.O. Randy consented to Shannen’s adoption of H.M.O., but Barbara refused to do so.

¶13 By the time the adoption petition was filed, Barbara had completed inpatient chemical dependency treatment in Butte and moved to Missoula, where she enrolled in outpatient treatment at the Missoula Indian Center. Barbara is an enrolled member of the Chippewa-Cree Tribe (Tribe) of the Rocky Boy Reservation. Neither H.M.O. nor Heidi is enrolled. In June of 1995, Heidi went to stay with Barbara in Missoula for the summer and decided to stay with her while attending high school.

¶14 During the course of the adoption proceedings, the District Court requested home studies of both Barbara and Shannen. Star Jackman (Jackman), a family resource specialist for the Department of Public Health and Human Services (the Department), issued a report recommending that H.M.O. remain permanently with Randy and Shannen. Jackman’s report, which contained numerous inaccuracies, focused more on Barbara’s failure to visit H.M.O. during Randy’s custody than on the suitability of Shannen and Randy’s home. She concluded that H.M.O. had become an integral part of the family unit — consisting of Shannen, Randy, H.M.O., an older stepbrother, and a younger half-sister — and, as a result, that everyone but Barbara would suffer loss if Randy and Shannen did not retain permanent custody of H.M.O.

¶15 Martha Vaughan Crago (Crago), another family resource specialist for the Department, submitted a report regarding the suitability of Barbara’s home after meeting with Barbara and Heidi. The report focused on Barbara’s recent success in controlling her alcoholism and Shannen’s negative attitude toward Barbara. Crago concluded that, although there was no guarantee that Barbara would remain alcohol-free, there was no basis to deny her unsupervised visitation or terminate her parental rights without her consent.

¶ 16 Reba McCracken (McCracken), Shannen’s mother, was deposed during the course of the adoption proceedings. McCracken, a teacher with an endorsement in special education, testified that H.M.O. had not developed the social skills of the average child of a similar age when Randy and Shannen initially took custody of H.M.O. McCracken also testified that Shannen is an “excellent” parent and worked extensively with H.M.O. to help H.M.O. develop social skills.

¶ 17 At the beginning of the hearing on Shannen’s petition, the District Court concluded that H.M.O. would be treated as an Indian child for purposes of the Indian Child Welfare Act (the ICWA) and, therefore, that the ICWA applied to the adoption proceedings. It further noted that the Tribe was notified of the adoption proceedings, as required by the ICWA, but did not respond. Shannen, Randy, Barbara, and various friends and family members testified. In addition, Carol Richard (Richard), a chemical dependency counselor, testified on Barbara’s behalf. Shannen’s accounting expert also testified that, if Barbara’s support obligation had been determined, she would have owed $43 per month in child support to Randy.

¶18 The District Court concluded that Barbara’s consent to the adoption was not required because, although she was able, Barbara had not paid child support for the year prior to Shannen’s initiation of the adoption proceedings, but that Barbara had not willfully abandoned H.M.O. The District Court also concluded beyond a reasonable doubt, based on what it characterized as the expert testimony of Jackman, McCracken and Richard, that custody of H.M.O. by Barbara likely would result in serious emotional or physical damage to H.M.O.; that H.M.O.’s custody should be with Randy; that Barbara’s parental rights should be terminated; and that Shannen’s petition for adoption should be granted. Barbara appeals from the order and judgment entered on the District Court’s findings of fact and conclusions of law.

STANDARDS OF REVIEW

¶19 We review a district court’s findings of fact to determine whether the findings are clearly erroneous. Matter of P.E. (1997), 282 Mont. 52, 56, 934 P.2d 206, 209 (citations omitted). Findings of fact are clearly erroneous “if they are not supported by substantial evidence, the court misapprehends the effect of the evidence, or this Court’s review of the record convinces it that a mistake has been made.” In re Marriage of Nevin (1997), 284 Mont. 468, 472, 945 P.2d 58, 61 (citation omitted). We review a district court’s conclusions of law to determine whether they are correct. Matter of P.E., 282 Mont. at 56-57, 934 P.2d at 209 (citations omitted).

¶20 Determinations regardingthe qualifications and competency of an expert witness are within the discretion of the trial court. Cottrell v. Burlington Northern R. Co. (1993), 261 Mont. 296, 301, 863 P.2d 381, 384 (citation omitted). We will not overturn such determinations absent a showing of an abuse of that discretion. Cottrell, 261 Mont. at 301, 863 P.2d at 384 (citation omitted).

DISCUSSION

¶21 Did the District Court err under the ICWA by granting the petition for adoption absent supporting testimony from a qualified expert witness?

¶22 At the beginning of the hearing, the District Court determined that H.M.O. would be treated as an Indian child and, therefore, that the ICWA applied to the proceedings; neither party appealed from that determination. The District Court subsequently concluded that Jackman’s report, McCracken’s deposition, and Richard’s opinion testimony constituted the qualified expert evidence required by the ICWA to support its finding, beyond a reasonable doubt, that Barbara’s continued custody of H.M.O. would likely result in serious emotional or physical damage to H.M.O. On that basis, the District Court ordered Barbara’s parental rights terminated and granted Shannen’s petition for adoption.

¶23 Barbara argues that, under the ICWA, her parental rights cannot be terminated absent testimony from at least one qualified expert witness that serious emotional or physical damage to H.M.O. likely will occur if Barbara’s joint custody is continued. She contends that the District Court’s “serious emotional or physical damage” determination is not supported by qualified expert testimony.

¶24 As a threshold matter, Shannen contends that this issue is not properly before us because Barbara raises it for the first time on appeal. Barbara responds that the first notice she had that Jackman and McCracken were to be treated as experts for ICWA purposes was when the District Court entered its findings of fact, conclusions of law, and order.

¶25 We generally will not address an issue raised for the first time on appeal when the appellant had an opportunity to object at the trial level. Cenex v. Board of Com’rs of Yellowstone (1997), 283 Mont. 330, 337-38, 941 P.2d 964, 968 (citation omitted); State v. Weeks (1995), 270 Mont. 63, 86, 891 P.2d 477, 491 (citation omitted). In cases where the party has not had an adequate opportunity to object, however, we will address the issue. See Cenex, 283 Mont. at 338, 941 P.2d at 968. For the reasons set forth below, we conclude that Barbara did not have an adequate opportunity to object to the District Court’s reliance on Jackman and McCracken as expert witnesses. Therefore, this issue is properly before us.

¶26 The ICWA provides that:

[n]o termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

25 U.S.C. § 1912(f). Thus, qualified expert testimony that Barbara’s continued joint custody would likely result in serious emotional or physical damage to H.M.O. is a prerequisite to the termination of Barbara’s parental rights. Further, Rule 702, M.R.Evid., provides that:

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Both Rule 702, M.R.Evid., and our case law are clear that, before expert evidence can be admitted, “some foundation must be laid to show that the expert has special training or education and adequate knowledge on which to base an opinion.” Cottrell, 261 Mont. at 301, 863 P.2d at 384.

¶27 With regard to the foundation necessary to qualify an expert pursuant to Rule 702, M.R.Evid., and Cottrell, it is clear that no such foundation was laid for either Jackman or McCracken. Jackman did not testify at the hearing and, as a result, no effort was made to qualify her as an expert for ICWA purposes. Consequently, the only information of record regarding her qualifications is contained in her routine report regarding the suitability of Shannen and Randy’s home as a permanent home for H.M.O., which was submitted for the District Court’s consideration by stipulation of the parties. That information disclosed only that Jackman was a social worker for the Department. No party having laid the necessary foundation, the District Court had insufficient information before it to determine that Jackman qualified as an expert under Rule 702, M.R.Evid.

¶28 Similarly, Shannen did not offer — or qualify — McCracken, who is Shannen’s mother, as an expert witness. Like Jackman, McCracken did not testify in person during the hearing. Her testimony was admitted via her perpetuation deposition and there is no suggestion therein that she was being offered as an expert witness. While McCracken’s deposition reflects that she is a school teacher with an elementary education degree and an endorsement in special education, we conclude that such information set forth in a vacuum — that is, without any disclosure that the witness is being offered and qualified as an expert — cannot constitute an adequate foundation. Therefore, we conclude that the District Court abused its discretion by implicitly determining that an adequate foundation had been laid for receipt of McCracken’s deposition testimony as expert evidence.

¶29 Shannen contends, however, that Jackman, McCracken and Richard were, in fact, qualified expert witnesses for ICWA purposes and that their testimony supported the District Court’s finding, beyond a reasonable doubt, that Barbara’s continued joint custody of H.M.O. would likely result in serious emotional or physical damage to the child. We address these matters in turn.

¶30 Where the ICWA applies, the Guidelines for State Courts; Indian Child Custody Proceedings (the Guidelines), regarding expert witnesses for ICWA purposes, also apply. Matter of M.E.M. (1981), 195 Mont. 329, 336, 635 P.2d 1313, 1318. The Guidelines provide:

D.4. Qualified Expert Witnesses
(a) Removal of an Indian child from his or her family must be based on competent testimony from one or more experts qualified to speak specifically to the issue of whether continued custody by the parents or Indian custodian is likely to result in serious physical or emotional damage to the child.
(b) Persons with the following characteristics are most likely to meet the requirements for a qualified expert witness for purposes of Indian child custody proceedings:
(i) A member of the Indian child’s tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childbearing practices.
(ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childbearing practices within the Indian child’s tribe.
(iii) A professional person having substantial education and experience in the area of his or her specialty.

44 Fed.Reg. 67584, 67593 (1979).

¶31 Nothing of record suggests in any way that Jackman, McCracken or Richard could be qualified as experts for ICWA purposes under the first two categories set out above. Thus, they could qualify — if at all — only under the third category.

¶32 Shannen contends that, because Jackman is a social worker, the District Court did not err in relying on the expert opinions set forth in her home-study report. For this proposition, Shannen relies on In re Adoption of M.T.S. (Minn. Ct. App. 1992), 489 N.W.2d 285, 287. However, Adoption of M.T.S. provides little support for Shannen’s argument because, beyond a statement that the social workers who provided the home-study reports were qualified experts under the ICWA, the opinion provides no information on the expertise of the social workers. Adoption of M.T.S., 489 N.W.2d at 287. In short, whether the social workers were qualified experts under the ICWA was not an issue. Adoption of M.T.S., 489 N.W.2d at 287.

¶33 Other courts have held that social workers must have qualifications beyond those of the normal social worker to be qualified as experts for the purposes of the ICWA. See, e.g., In re Elliott (Mich. Ct. App. 1996), 554 N.W.2d 32, 37 (citation omitted); Matter of N.L. (Okla. 1988), 754 P.2d 863, 868 (citations omitted). Those courts based their conclusions on the legislative history of the ICWA which requires “expertise beyond the normal social worker qualifications.” See In re Elliott, 554 N.W.2d at 37 (citation omitted); Matter of N.L., 754 P.2d at 868 (citations omitted); see also House Report for the Indian Child Welfare Act, H.R. 1386, 95 Cong., 2d Sess. 22, reprinted in 1978 U.S.C.C.A.N. 7530,7545. Based on these cases and legislative history, we hold that a social worker must possess expertise beyond that of the normal social worker to satisfy the qualified expert witness requirement of 25 U.S.C. § 1912(f).

¶34 As discussed above, Jackman’s report contains no substantive information regarding her qualifications and experience other than that she was a social worker employed by the Department. On the basis of the record before us, we hold that the District Court abused its discretion in concluding that Jackman was a qualified expert witness for ICWA purposes.

¶35 With regard to McCracken, Shannen cites to no authorities under which McCracken’s skill and experience as a teacher with a special education endorsement would render her a qualified expert witness for ICWA purposes on the issue of whether — and to what extent — Barbara’s continued joint custody would result in serious physical or emotional damage to H.M.O. Nor do such education and experience appear — from a logic standpoint — to be sufficient qualifications for an expert on that particular issue. Therefore, we hold that the District Court abused its discretion in concluding that McCracken was qualified as an expert on the issue of whether serious emotional or physical damage to H.M.O. likely would result if Barbara retained joint custody of H.M.O.

¶36 Finally, Shannen contends that Richard was called and qualified by Barbara as an expert on chemical dependency and its potential impacts on the children of chemically dependent people. She also contends that Richard testified that Barbara is an alcoholic and clinically depressed and that that testimony is sufficient to support the District Court’s conclusion regarding the likelihood of serious emotional or physical damage to H.M.O. if Barbara maintained her parental rights. We agree — and, indeed, Barbara concedes — that Richard was qualified as an expert on the issue of serious emotional or physical damage to H.M.O. should Barbara retain joint custody. We disagree, however, that Richard’s testimony is sufficient to support the District Court’s finding.

¶37 At no point in Richard’s testimony did she opine or even infer that leaving H.M.O. in the joint legal custody of Barbara and Randy likely would result in serious emotional or physical damage to the child. While Richard did state that Barbara was both alcoholic and clinically depressed, those conditions — without more — will not support a “likely serious emotional or physical damage” finding. Moreover, Richard testified that Barbara had had a great deal of success in working on her recovery and that Barbara’s chances of successfully dealing with her alcoholism have increased because Barbara is also being treated for depression.

¶38 As discussed, Richard’s testimony was the only expert evidence before the District Court on the likelihood of serious emotional or physical damage to H.M.O. in the event Barbara retained joint custody. That testimony is not substantial evidence in support of the District Court’s finding, beyond a reasonable doubt, that continued joint custody by Barbara would result in serious physical or emotional damage to H.M.O. We conclude, therefore, that the court’s finding is clearly erroneous and, as a result, we hold that the District Court erred in granting the petition for adoption absent substantial supporting testimony from a qualified expert witness.

¶39 Reversed and remanded with instructions to the District Court to vacate its judgment and enter a judgment reinstating Barbara’s parental rights and denying Shannen’s petition for adoption.

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