author: MR. CHIEF JUSTICE TURNAGE MR. JUSTICE McDONOUGH,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JERRY EILER, Defendant and Appellant.
    No. 87-494.
    Submitted June 14, 1988.
    Decided Sept. 14, 1988.
    Rehearing Denied Oct. 27, 1988.
    762 P.2d 210.

      Moses Law Firm, Charles F. Moses argued, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., Betsy Brandborg argued, Asst. Atty. Gen., Helena, David Rice argued, Co. Atty., Havre, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Defendant Jerry Eiler appeals his jury conviction of sexual assault in violation of Section 45-5-502, MCA, in the Twelfth Judicial District, Hill County, Montana. Defendant was charged by information on February 5, 1986, with sexually assaulting his then four-year-old stepdaughter, S.A. Eiler was sentenced to a term of fifteen years with the last seven years suspended. We affirm.

Defendant raises the following issues on appeal:

1. Did the District Court properly determine that the victim, eight-year-old S.A., was competent to testify to incidents which occurred four years earlier?

2. Did the District Court properly allow leading questions by the prosecuting attorney during the deposition of the eight-year-old victim?

3. Did the District Court properly admit evidence of defendant Eiler’s prior acts with T.M., his stepdaughter in a previous marriage?

4. Did the District Court properly rule that Dr. Jarvis, a psychologist who examined S.A., was a qualified expert whose testimony was permissible?

5. Did the evidence support the jury conviction of guilty beyond a reasonable doubt?

The victim, S.A., was born on January 21, 1978. In September, 1980, she and her mother Sharon began living with Jerry Eiler, defendant and appellant in this action. Sharon and defendant were married in October, 1981. In the summer of 1982, Eiler had sexual contact with S.A. while she was riding with him on a tractor.

In January, 1983, Sharon went to the State of Washington for treatment of alcoholism, for a period of one month. During this time S.A. stayed with Eiler. While Sharon was absent Eiler had sexual contact with S.A. in the family home on two separate occasions.

Shortly after Sharon returned home from Washington, she divorced Eiler.

By the fall of 1983, S.A. had become disobedient, destructive, and towards other children, abusive. S.A. also began masturbating frequently. This unusual behavior prompted Sharon to take S.A. to Dr. Jarvis, a psychologist, who concluded from his diagnosis that S.A. had been sexually abused. He testified to this at trial.

In February of 1986, Eiler was charged with sexual assault of his stepdaughter. S.A. testified by videotape deposition at trial. It was determined by the District Court at the deposition that S.A. was competent to testify.

S.A. testified that she understood what it meant to tell the truth and realized there were consequences if she failed to tell the truth. The videotaped deposition revealed that she was crying, quite upset, and was hesitant to answer questions concerning specific details of the alleged sexual contacts. The prosecution was allowed to use leading questions, and S.A. testified that the defendant had touched her “private parts” with his hands and had instructed her to touch his “private parts.” S.A. testified that she did not tell anyone “because he [Eiler] said he would spank me.”

T.M., Eiler’s stepdaughter in a previous marriage, testified at trial that Eiler forced her to have intercourse with him regularly from 1973 when T.M. was age nine, until 1977. Eiler and T.M.’s mother, J.E., began living together in 1973, were married in 1975, and were divorced in 1977. Counsel for the defense objected to this testimony of prior acts by T.M., but the objection was overruled. Eiler was convicted by jury verdict of sexually assaulting S.A.

Appellant first contends that S.A., the victim, was not competent to testify. S.A. was four years old when forced to engage in sexual contact with Jerry Eiler and she was eight years old when she testified to the acts. Rule 601, M.R.Evid., is controlling:

“Rule 601. Competency in general; disqualification.
“(a) General rule competency. Every person is competent to be a witness except as otherwise provided in these rules.
“(b) Disqualification of witnesses. A person is disqualified to be a witness if the court finds that (1) the witness is incapable of expressing himself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him or (2) the witness is incapable of understanding the duty of a witness to tell the truth.”

The requirements for determining competence are “capacity of expression and appreciation of the duty to tell the truth.” State v. Phelps (Mont. 1985), [215 Mont. 217,] 696 P.2d. 447, 453, 42 St.Rep. 305, 312. The rule imposes no age requirement for testifying. State v. Campbell (1978), 176 Mont. 525, 579 P.2d 1231; State v. Smith (1984), 208 Mont. 66, 676 P.2d 185. This Court has allowed testimony of five-year-old victims in Phelps, 696 P.2d 447, 42 St.Rep. 305, and State v. A.D.M. (Mont. 1985), [216 Mont. 419,] 701 P.2d 999, 42 St.Rep. 916; and testimony of four-year-old victims in State v. D.B.S. (Mont. 1985), [216 Mont. 234,] 700 P.2d 630, 42 St.Rep. 770, Campbell, 176 Mont. 525, 579 P.2d 1231, and State v. Rogers (Mont. 1984), [213 Mont. 302,] 692 P.2d 2, 41 St.Rep. 2131.

Appellant contends that S.A. did not have the ability to comprehend and relate what occurred. Appellant refers to S.A.’s testimony which indicates she could not clearly remember details of the alleged acts. First, she could not remember where she lived in 1982 and 1983. Second, when the sexual contact occurred, she could not specifically recall whether she was standing or sitting on the tractor. And third, S.A. could not remember what clothes she and Eiler were wearing when the acts took place. However, it has been established by this Court that “children especially four-year-olds are not governed by the clock and calendar as adults are. They are generally at a loss to apply times or dates to significant events in their lives.” State v. D.B.S., 700 P.2d at 634.

We have stated that what is important is the capacity to remember the occurrence and the ability of the witness to relate her impressions of what occurred. State v. Howie (Mont. 1987), [228 Mont. 497,] 744 P.2d 156, 44 St.Rep. 1711. S.A.’s testimony is consistent with her prior reports of the incidents and is supported by Dr. Jarvis’ testimony. This shows her capacity to remember the occurrence and her ability to relate her impressions. In State v. A.D.M. (Mont. 1985), [216 Mont. 419,] 701 P.2d 999, 42 St.Rep. 916, a five-year-old was held to be competent because her testimony was uniform with her prior reports and was confirmed with the testimony of a psychologist.

Although appellant argues that the inconsistencies in S.A.’s testimony are indicative of her incompetency, we held in Phelps, 696 P.2d at 453, that “the inconsistencies of [the victim’s] perception of where he was do not affect his competence.” The record shows that S.A. could not answer inquiries of where she lived or what she was doing in 1982 and 1983. However, when asked where she lived or what she was doing when she was four years old, she had a more specific time frame in which she as a child could work and could answer the questions clearly.

In addition, we have ruled that inconsistencies go to the credibility of the evidence, the weight of which is decided by the jury. Rogers, 692 P.2d 2, 5; State v. Shambo (1958), 133 Mont. 305, 322 P.2d 657, 659.

Witness competency is within the discretion of the trial court. D.B.S., 700 P.2d at 636; Phelps, 696 P.2d at 453; Rogers, 692 P.2d at 5. The judge in this case did not abuse his discretion in deciding that S.A. understood her duty to tell the truth and had the ability to clearly communicate her accounts of the events in question.

Appellant, though, argues that S.A. did not understand the duty to tell the truth. Counsel for the defendant asked S.A. when she discovered the difference between the truth and a lie. Her response was that she did not know. This question is a difficult question for any adult to answer. It would be even more rare for a child to know when she learned the difference between the truth and a lie.

In order to show that S.A. did not know the difference between the truth and a lie, appellant quoted a portion of S.A.’s deposition.

“Q. [By Mr. Rice] Is there a reason for telling the truth?
“A. Yes.
“Q. What’s the reason for telling the truth? (No response) Do you believe in God?
“A. Yes.
“Q. Okay. And does God have anything to do with you telling the truth?
“A. Yes.
“Q. What does God have to do with that?
“A. I don’t know.”

In citing this testimony counsel for the defendant contends that S.A. does not know what it means to tell the truth. However, counsel neglected to call attention to the statements made immediately prior to this testimony:

“Q. [By Mr. Rice] Okay. Now do you know what it means to tell the truth?
“A. Yes.
“Q. What does it mean to tell the truth?
“A. To tell what really happened.”

Counsel also failed to cite the testimony which continued after the referred-to passage in appellant’s brief:

“Q. Okay. Does God care if you tell the truth?
“A. Yes.
“Q. And do you wish to please God?
“A. Yes.
“Q. Okay. What do you think happens if you don’t tell the truth?
“A. You won’t be resurrected.
“Q. Okay. Do you get in trouble for not telling the truth, not telling the truth at school.
“A. Yes.
“Q. What happens if you don’t tell the truth at school?
“A. You have to go to detention.
“Q. What is detention?
“A. You have to stay in in recess.
“Q. And do you ever — would you get in trouble at home for not telling the truth?
“A. Yes.
“Q. What happens if you don’t tell the truth?
“A. You have to go to bed.”

In addition, Dr. Jarvis testified that in his opinion S.A. knew the difference between the truth and a lie.

“[By Dr. Jarvis] In my opinion she could clearly distinguish between the truth and a lie.
“Her telling me at times that she talked to her mother, and finding out, indeed, she had talked with her mother about those kinds of things.”

These passages indicate that S.A. understood what the truth was and that there were consequences if she told a lie. After hearing this testimony, the trial court judge was satisfied that S.A. had the ability to discern the difference between the truth and a lie.

Appellant’s counsel also makes allegations that in addition to an ability to appreciate telling the truth, S.A. had been coached to say that the sexual abuse had occurred. However, Dr. Jarvis testified that he saw no signs of coaching. He stated that her story was consistent over time and when he asked who had told her to say what she had said, S.A. told Dr. Jarvis that no one had told her to say those things.

The District Court properly used its discretion in deciding that S.A. was competent to testify.

The second issue on appeal is whether the District Court properly permitted the prosecution to use leading questions with the eight-year-old victim.

Rule 611(c) of the Montana Rules of Evidence reads in pertinent part:

“Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony.”

Appellant objected to the leading nature of the prosecution’s questions to the victim, S.A. However, in Bailey v. Bailey (1979), 184 Mont. 418, 421, 603 P.2d 259, 261, we held that “whether or not [leading questions] will be allowed is a matter for the trial court’s discretion.” In Bailey the court allowed leading questions where the child was withdrawn.

In the case on appeal, Dr. Jarvis testified that S.A. and other children who are involved in sexual abuse cases, do not want to talk about the incident. S.A.’s videotaped deposition clearly corroborates Dr. Jarvis’ expert opinion that child victims of sexual abuse are reticent witnesses. The trial court also noted in its memorandum on the competency issue, “it is noticeably difficult for her to testify about her experiences, a circumstance which is understandable and not unusual for a child witness in this type of case.” We find that there was no abuse of discretion by the District Court for allowing leading questions by the prosecution.

The third issue before this Court is whether the testimony by T.M. of prior acts was properly admitted by the trial judge.

T.M., a stepdaughter of Eiler’s in a previous marriage, testified that she had been sexually abused by Eiler frequently between 1973 and 1977. In her testimony she stated that in 1973, when she was nine, Eiler asked T.M. to come to his room. He told her to take off her pajamas and then felt her breasts and vagina and told her to touch his penis. It was her testimony that she did so in fear that Eiler would hurt her mother if she did not cooperate. T.M. stated that this incident and others occurred when her mother was working nights from 10:00 p.m. to 5:00 a.m. and Eiler had opportunity to be alone with her. In subsequent incidents while on hunting trips alone with T.M. or in a laundry room where Eiler worked, T.M. was forced to have intercourse with him. These acts continued from 1973 to 1977 when Eiler and J.E., T.M.’s mother, divorced.

Appellant objected to the preceding testimony on the ground that it was in violation of Rule 404(b), M.R.Evid., which states:

“(b) Other crimes, wrongs, acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, he admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Appellant contends that the effect of the prior acts evidence is prejudicial to the defendant because it was offered to show Eiler’s depravity or criminal propensities. However, respondent made it clear that the evidence was being offered to show plan, motive, or opportunity as is permitted by the rule.

In State v. Just (1979), 184 Mont. 262, 602 P.2d 957, we set forth procedures which must be strictly followed when evidence of other crimes is to be offered as testimony.

“(a) Evidence of other crimes may not be received unless there has been notice to the defendant that such evidence is to be introduced . . . . Additionally, the notice to the defendant shall include a statement as to the purposes for which such evidence is to be admitted.
“(b) At the time of the introduction of such evidence, the trial court shall explain to the jury the purpose of such evidence and shall admonish it to weigh the evidence only for such purposes.
“(c) In its final charge, the court should instruct the jury in unequivocal terms that such evidence was received only for the limited purposes earlier stated and that the defendant is not being tried and may not be convicted for any offense except that charged, warning them that to convict for other offenses may result in unjust double punishment.”

Just, 602 P.2d at 963-964.

Prior to trial, the prosecutión filed a notice of intent to rely on prior acts. The District Court admonished the jury before T.M. testified that the evidence they were about to hear was to be considered only to show plan, motive, or opportunity. Plus, Instruction No. 13 was submitted which reminded the jury that the evidence of prior acts was offered only to show proof of motive, plan, or knowledge. By adhering to the Just rule, the prosecution assured that the defendant would not be prejudiced by the evidence of prior acts.

Just also provided a four-point test to which the evidence of prior acts is applied, three parts of which were first identified in State v. Jensen (1969), 153 Mont. 233, 239, 455 P.2d 631, 634, with the addition of a fourth part from Rule 403, M.R.Evid.

“1. Similarity of crimes or acts;
“2. Nearness in time; and
“3. Tendency to establish a common scheme, plan, or system; and
“4. The probative value of evidence is not substantially outweighed by the prejudice to the defendant.”

Just, 602 P.2d at 961.

We conclude that the District Court considered all four elements and properly admitted testimony of T.M. regarding defendant’s other crimes.

1. Similarity of crimes or acts.

Appellant, in his brief, contends that the acts are not similar, without articulating why they are not. The crime charged here is sexual abuse of a stepdaughter. The prior acts testified to by T.M. were also sexual acts with Eiler when she was his stepdaughter. Both girls were minors when they were forced to engage in the sexual activities. Appellant points out that S.A. was subject to “touching” and T.M. testified that she had unwillingly engaged in intercourse and that these acts are not similar. However, the first acts to which T.M. was subject by Eiler were acts of “touching” also. In addition, we established in State v. Tecca (Mont. 1986), [220 Mont. 68,] 714 P.2d 136, 43 St.Rep. 264, that the prior acts need not be identical to the offense committed but be merely of “sufficient similarity.” Tecca was applied to State v. Long (Mont. 1986), [223 Mont. 502,] 726 P.2d 1364, 43 St.Rep. 1948. The defendant in Long was convicted of sexual abuse for “rubbing” the clothed bottom of a five-year-old. This was deemed sufficiently similar to the prior acts of “rubbing” the genitals of two four-year-olds after their pants had been removed. The acts here of sexual contact with stepdaughters are sufficiently similar.

2. Nearness in time.

Appellant contends that the time between the offense charged and the prior acts, five years, is too remote in time. To support this allegation appellant cites State v. Hansen (1980), 187 Mont. 91, 608 P.2d 1083, where we allowed a period of two and one-half years between acts, and State v. Stroud (Mont. 1984), 210 Mont. 58, 683 P.2d 459, 41 St.Rep. 919, in which testimony of prior acts three and one-half years previously was admitted. On the other hand we have made reference to putting a cap on the time frame between acts in State v. Tecca (Mont. 1986), [220 Mont. 68,] 714 P.2d 136, 43 St.Rep. 264, where the Court stated that a single act nine years before would be too remote.

The five-year span involved here is significant to show that defendant engaged in sexual activities with his stepdaughters only when he had the opportunity. Eiler had sexual contact with T.M. between 1973 and 1977, when he was married to her mother, J.E. The sexual activities with S.A. occurred when he was married to Sharon, and S.A. was his stepdaughter, in 1982 and 1983. He did not have parental control over a minor girl between 1977 and 1982 and therefore did not have the opportunity. Lack of opportunity in this case causes the actual time period between the two incidents to be less significant. State v. T.W. (Mont. 1986), [220 Mont. 280,] 715 P.2d 428, 43 St.Rep. 368.

In State v. T. W. the defendant was convicted of sexually assaulting his developmentally disabled sister. Evidence of similar sexual abuse was presented, but the defendant objected on the grounds that the evidence was too remote in time. We held that the evidence was not too remote because during the four-year interval in which the defendant did not sexually abuse his sister he was in the military. He engaged in sexual contact with her prior to enlisting in the military and at the first opportunity after being discharged.

In this case, Eiler engaged in sexual abuse during the time that he had parental control over a stepdaughter. These dates were 1973 through 1977 and 1982 through 1983.

It was held in State v. Fitzpatrick (1980), 186 Mont. 187, 606 P.2d 1343, and State v. Doll (Mont. 1985), [214 Mont. 390,] 692 P.2d 473, 42 St.Rep. 40, that remoteness affects credibility of the evidence and not its admissibility. The evidence here was properly admitted for the jury to weigh.

3. Tendency to establish a common scheme, plan, or system.

The evidence testified to by T.M. was brought forward by the prosecution to show motive, plan, or knowledge, as required by the procedures in Just. Rule 404(b), M.R.Evid., codifying the rule pertaining to admissibility of prior acts, recognizes some allowed exceptions and includes in its list, opportunity. In this case defendant engaged in sexual contact when the opportunity presented itself and the evidence shows motive to engage in sexual contact with minor girls.

Eiler coerced S.A. to participate in sexual touching on three occasions. The first was when they were alone on the tractor. The second and third times occurred when S.A.’s mother Sharon was in Washington for treatment of alcoholism and Eiler and S.A. were alone in his bedroom. These were the first opportunities Eiler had to engage in sexual contact with a stepdaughter since 1977 when he divorced J.E. Between 1973 and 1977, when T.M. was Eiler’s stepdaughter, acts of sexual contact and intercourse occurred when the two were alone either when T.M.’s mother worked nights or when Eiler and T.M. went hunting.

Like the defendant in State v. T.W., who sexually assaulted his sister before and after his military tour, Eiler forced sexual contact with his stepdaughters when given the opportunity. Rule 404(b) provides that evidence of prior acts is admissible for a showing that the defendant acted when he had the opportunity. The evidence in the case on appeal shows that Eiler acted only when he had parental control over a stepdaughter. Only when he could threaten punishment was he able to force the girls into engaging in sexual relations. T.M. testified that she engaged in the touching and sexual intercourse because she was afraid that Eiler would hurt her mother if she did not obey his commands. S.A. testified that Eiler threatened a spanking if she did not cooperate.

There is also some showing of motive behind Eiler’s actions. T.M.’s testimony showed that each time Eiler married he had control over a stepdaughter and sexually abused her when they were alone. The motive behind this is Eiler’s sexual interests in young girls. Just requires only a “tendency” to establish a common scheme, plan, or system. Just, 602 P.2d at 961. This tendency is shown by Eiler’s actions.

In Just we stated that the prior acts “testified to occurred between the defendant and the victim; all transpired when the two were alone; and all involved essentially identical behavior on the part of the defendant.” Just, 602 P.2d at 961.

In the instant appeal, although the victims were different, the acts transpired when Eiler was alone with each girl, and the acts involved comparable behavior on the part of the defendant. The prior acts here are sufficiently similar to the acts with which Eiler was charged to show motive behind the actions of the defendant, as required by Rule 404(b), M.R.Evid.

In State v. Long (Mont. 1986), [223 Mont. 502,] 726 P.2d 1364, 43 St.Rep. 1948, the District Court allowed testimony of prior crimes where the defendant touched several little girls in the vaginal area or on the upper thighs or “rubbed one girl’s bottom.”

“. . . the State introduced evidence of the prior act to show a common scheme plan or design in the defendant’s conduct. Because of the subtle nature of child abuse, we find the evidence of prior acts is similar enough to the acts involved to justify its admission.”

Long, 726 P.2d at 1367. A common plan is evident through a showing that Eiler had parental control over each stepdaughter and maintained continual control through threats of punishment. Therefore, we would also hold that the acts show a common scheme, plan or design, apparent from Eiler’s acts of sexual contact with S.A. and T.M. We hold that the evidence of prior acts showed opportunity and motive.

4. The probative value of the evidence is not substantially outweighed by the prejudice to defendant.

This Court has established that anytime evidence of prior acts is submitted to show plan, scheme, or design there will obviously be some prejudicial effect. Just, 602 P.2d at 961. However, if the evidence shows that the acts were similar, that they were near in time, and that they do in fact show a tendency to establish a common plan, scheme, or design, these factors combine to give great probative weight to the evidence of prior acts. Under the discretion of the District Court the prejudice was weighed against the probative effect. The procedural safeguards of Just were followed assuring less likelihood of prejudice to the defendant. Although T.M.’s testimony is prejudicial to Eiler, “[g]iven the elusive nature of sexual assault against very young children, [the witness’s] testimony was probative of the State’s theory that defendant’s actions were not an isolated event.” Long, 726 P.2d at 1367-68. We hold that the evidence of prior acts was properly admitted by the District Court.

The fourth issue is whether the District Court properly ruled that Dr. Jarvis, S.A.’s psychologist, was a qualified expert and that his testimony was permissible. After Dr. Jarvis testified, defense counsel moved the court to strike his testimony on the grounds that (1) he was not a qualified expert in child psychology, and (2) his opinion was not based on medical certainty.

Appellant contends that Dr. Jarvis is not a qualified expert in the field of child psychology simply because Dr. Jarvis holds no degree in child psychology. The trial court, though, determined that he was sufficiently qualified. The appropriate rule of evidence, Rule 702 M.R.Evid., states:

“If 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.”

Dr. Jarvis holds a Ph.D. in psychology and a masters degree in counseling and guidance. Seventy percent of his practice involves children who allegedly have been sexually abused. He testified that he has attended numerous programs which focused on child psychology and sexual abuse, and he is the clinical director of a sexual abuse program in Havre, Montana. Taking these credentials into consideration, the District Court determined that he was a qualified expert.

The determination that a witness is an expert witness is largely within the discretion of the trial court and such determination will not be disturbed on appeal absent a showing of abuse of discretion. State v. Berg (Mont. 1985), [215 Mont. 431,] 697 P.2d 1365, 42 St.Rep. 518; State v. Geyman (Mont. 1986), [224 Mont. 194,] 729 P.2d 475, 43 St.Rep. 2125; In the Matter of J.W.K. (Mont. 1986), [223 Mont. 1,] 724 P.2d 164, 43 St.Rep. 1483. In addition, the degree of an expert’s qualification goes to the weight of the testimony decided by the jury rather than its admissibility. Berg, 697 P.2d at 1367; Matter of J.W.K., 724 P.2d at 166.

The trial judge properly ruled that Dr. Jarvis is an expert qualified to testify in cases of sexual abuse of children.

Appellant contends that Dr. Jarvis’ diagnosis was performed in preparation of trial. However, S.A. was brought to Dr. Jarvis by her mother before the mother had any knowledge of possible sexual abuse. Dr. Jarvis stated, “I did no preparation for any kind of legal preparation or going to Court, which is typically something I do when I am currently working with a child.”

Appellant contends, in objecting to Dr. Jarvis’ testimony, that his opinion was not based on medical certainty. He states that Dr. Jarvis could not say specifically what traumatic event caused S.A.’s behavior. Dr. Jarvis, though, stated that he believed S.A. had been sexually abused. The weight of this testimony is to be decided by the jury.

Appellant cites State v. Brodniak (Mont. 1986), [221 Mont. 212,] 718 P.2d 322, 43 St.Rep. 755, in support of his contention that the testimony of Dr. Jarvis was admitted improperly for the purpose of testifying to the veracity of S.A.’s testimony. However, appellant failed to make this objection at trial. If counsel fails to raise an issue at trial, the issue cannot be raised for the first time on appeal. Long, 726 P.2d 1364; State v. Patton (1979), 183 Mont. 417, 600 P.2d 194. The appellant failed to make a timely objection at trial and so cannot raise the issue here.

Appellant also cites Brodniak in support of his objection to Dr. Jarvis’ testimony on the grounds that Dr. Jarvis was not an appropriate medical physician to give testimony. Brodniak stands for the proposition that a psychologist expert witness is limited in his opinion testimony. In Brodniak, it was held by this Court that an expert witness may testify as to his opinion of whether the victim was suffering from rape trauma syndrome, but the expert is not allowed to opine whether he believed the witness is telling the truth or whether he believed the story that the victim was narrating. Brodniak, 718 P.2d at 329.

The fifth issue on appeal here is whether the evidence was sufficiently substantial to support the jury verdict beyond a reasonable doubt. In Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, the standard of review is whether:

“[a]fter 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.”

Jackson v. Virginia, 443 U.S. at 319, 99 S.Ct. at 2780. State v. Rodriguez (Mont. 1981), [_ Mont. _,] 628 P.2d 280, 283, 38 St.Rep. 578F, 5781; State v. Geyman (Mont. 1986), [224 Mont. 194,] 729 P.2d 475, 476, 43 St.Rep. 2125, 2126.

Appellant contends that the testimonies of S.A. and T.M. were not sufficient for the jury to find guilt beyond a reasonable doubt, claiming conjecture and speculation. However, it was ruled by the District Court that S.A. was a competent witness and clearly gave testimony of abuse by Eiler. Her testimony was consistent with what she had told Dr. Jarvis when he diagnosed her. Moreover, T.M. corroborated S.A.’s testimony with accounts of prior acts which tended to show opportunity and motive behind Eiler’s forced sexual contacts.

The sexual assault statute, Section 45-5-502(1), MCA, provides that:

“A person who knowingly subjects another not his spouse to any sexual contact without consent commits the offense of sexual assault.”

Section 45-2-101(60), MCA, defines sexual contact as:

“[A]ny touching of the sexual or other intimate parts of the person of another for the purpose of arousing or gratifying the sexual desire of either party.”

S.A. testified that Eiler touched her “private parts” and instructed her to touch his “private parts.” This testimony clearly shows that any rational trier of fact could have found the essential elements of sexual assault against S.A. beyond a reasonable doubt.

Affirmed.

MR. JUSTICES HARRISON, WEBER and GULBRANDSON concur.

MR. JUSTICE McDONOUGH,

dissenting:

I dissent as to the third issue of whether the testimony of J.M. as to prior criminal acts was properly admitted by the trial court.

The general rule is that evidence of other crimes must be excluded. Rule 404(b), M.R.Evid. In State v. Tiedemann (1961), 139 Mont. 237, 362 P.2d 529, we said:

“The general rule should be strictly enforced in all cases where applicable, because of the prejudicial effect and injustice of such evidence, and should not be departed from except under conditions which clearly justify such a departure. The exceptions should be carefully limited, and their number and scope not increased.”

Tiedemann, 362 P.2d at 531.

The reason for the rule is that prior bad acts are usually considered irrelevant and prejudicial. They tend to show defendant is a bad person or has criminal propensities, and on that basis juries may find that defendant committed the crime actually charged. In other words, they do not prove the crime charged, but only go to defendant’s character or propensities. Also, as a matter of policy, they are inadmissible because there is a tendency for the trier of fact to give excessive weight to such acts, and to justify defendant’s punishment irrespective of whether defendant is guilty of the present charge. As said in State v. Jensen (1969), 153 Mont. 233, 238, 455 P.2d 631, 633:

“[t]hat when a defendant is put on trial for one offense, he should be convicted, if at all, by evidence which shows that he is guilty of that offense alone; ...”

There are exceptions to the general rule prohibiting introduction of prior bad acts. Rule 404(b), M.R.Evid. They may be admitted, but only for the purpose of showing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The majority here holds that the evidence of the prior acts showed opportunity and motive. Motive is not really an issue in this case. It is self-evident that the motive for commission of these acts was sexual gratification. Opportunity is also not an issue because anyone in a parental capacity would have plenty of opportunity to commit this type of crime. Moreover, the State appears to have relied on the common plan exception for relevance on the bad acts issue, not opportunity.

Beyond the procedural requirements of notice, explanations, warnings and instructions, State v. Just (1979), 184 Mont. 262, 602 P.2d 957, set out a four-point test: similarity of crimes or acts; nearness in time; tendency to establish a plan; and the probative value of evidence as weighed against its prejudice to defendant.

As to similarity, the act charged here was that of touching the genitalia by both the victim and the defendant and it is the same as some of the acts with J.M., but there is nothing distinguishing. The dominant prior acts with J.M. were the crimes of sexual intercourse without consent with a minor. There is no unique similarity between the prior acts and the case at bar other than the fact that both are sex crimes. Sexual intercourse without consent is a much more serious crime than sexual assault. See Sections 45-5-502 and 503, MCA. The former is a sex crime, but it is not the same as the latter, just as all larcenies are not the same. In order to tie the defendant into a plan or method of operation, there must be something distinguishable and identifiable. Otherwise the other acts are not relevant and material.

As to nearness in time, over five years elapsed between the last act with T.M. and the first with S.A. There is no continuous series of acts tending to show intentional plan by defendant. In State v. T. W. (Mont. 1986), [220 Mont. 280,] 715 P.2d 428, 43 St.Rep. 368, the interval was four years, and the prior acts were with the same victim. Because they were with the same victim, the acts in T. W. were more readily admissible. The separate crimes in this case were not a part of the history of the case, nor did they have any integrated tie-in. They were entirely separate, with some even allegedly committed in different states.

To establish a common plan, the “plan” must be a general or larger course of action. The State’s position is that Eiler’s plan was to commit sexual assault on a stepdaughter when he had an opportunity while the mother was out of the household, or when he and the victim were away from the household. This is inherently weak. It implies that one of the reasons he married S.A.’s mother was because she had a minor daughter. There is nothing more here than the general acts of a pedophile when he would have opportunity.

The probative value of T.M.’s testimony as to the crime charged is outweighed by its prejudice to the defendant. The evidence meeting each of the first three tests of the Just rule is weak. The testimony of S.A., the victim, is not the strongest because of her age and was bolstered by the testimony of the psychologist.

Other evidence of defendant’s guilt is not so overwhelming as to bend the general rule on the inadmissibility of evidence of other crimes. The lack of strength in the evidence of the crime charged also contributed to the prejudicial effect of the prior crimes. The defendant in this case should not be punished for the alleged crimes against T.M. on which the statute of limitations has run.

Another reason that caution should be employed in the admissibility of evidence of other crimes is that it opens up other issues which by inference or direct action or comment would greatly lessen a defendant’s rights against self-incrimination as to the crime actually charged.

If such evidence is ruled admissible to show a plan, scheme, etc., then it goes to the merits of the main charge, and if defendant testifies, denying and contesting such evidence of other crimes, defendant is now into the merits of the main charge and defendant has forfeited his or her constitutional Fifth Amendment protection as to the main charge. See McGahee v. Massey, (11th Cir. 1982), 667 F.2d 1357, 1362.

The testimony of T.M. was prejudicial to the defendant under these circumstances. It was an abuse of discretion to admit such testimony and I would reverse defendant’s conviction and remand for new trial.

MR. JUSTICES SHEEHY and HUNT join in the foregoing dissent.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE TURNAGE MR. JUSTICE HUNT,

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. STACY GENE HALL, Defendant and Appellant.
    No. 87-283.
    Submitted on Briefs July 14, 1988.
    Decided Sept. 15, 1988.
    761 P.2d 1283.

      J. Dirk Beccari, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Barbara Claassen, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Missoula, Ed McLean, Deputy Co. Atty., for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Stacy Gene Hall appeals his jury conviction of felony theft, in violation of Section 45-6-301, MCA. Appellant was charged by information with three counts of theft of radio equipment and tried in the District Court of the Fourth Judicial District, Missoula County, Judge Douglas G. Harkin presiding. From the trial of early October 1985, the jury did not return a verdict and a mistrial was called. A second jury trial was scheduled for September 25, 1986. In that trial, Hall was found guilty of all three counts of theft and was sentenced to three ten-year terms to run consecutively, with seven years suspended on each term.

We affirm.

The issues on appeal are:

1. Whether the District Court properly admitted evidence of other acts.

2. Whether the District Court properly admitted appellant’s first trial testimony in a second trial at which appellant did not testify.

3. Whether the doctrine of cumulative error is applicable in the case on appeal.

On January 22, 1985, Missoula police searched the residence of appellant pursuant to a search warrant and found radio equipment which had been reported as stolen from three Missoula radio stations. The equipment consisted of a disco unit with two turntables, a control board set in a portable cabinet, a cartridge rack, a cartridge eraser/splicer-finder, a cartridge recorder player, microphones, an adaptor, and numerous two-track cartridges. The pieces had been taken from KGVO radio station, KUFM, and FGRZ radio. The search warrant was issued when the equipment was identified in a picture of Stacy Hall and his low power radio station featured in the Missoulian newspaper.

At the October 3, 1985 trial, the jury was unable to reach the necessary unanimous decision on any of the counts for which the judge declared a mistrial and set a date for a second trial.

The defendant testified at the first trial but chose to refrain from testifying in his second trial declaring his right against self-incrimination under the Fifth Amendment. The State introduced into evidence portions of Hall’s testimony from the first trial. The District Court allowed the evidence pursuant to Rule 801, M.R.Evid. Defendant objected alleging that the testimony was not an admission by a party-opponent according to Rule 801(d)(2), M.R.Evid. Furthermore, the State introduced the testimony from the first trial to rebut testimony of defendant’s witness. Appellant contended that this was an improper use of Hall’s former testimony. Defendant also objected on the grounds that the new trial nullified any previous testimony of Hall. However, the District Court ruled that the testimony was admissible.

Hall was convicted on all three counts of felony theft and on December 15, 1986, was sentenced to thirty years in the Montana State Prison, with all but nine years suspended.

Appellant first contends that the District Court improperly admitted evidence of appellant’s others acts. The State attempted to introduce evidence of a burglary committed on August 4, 1984, to which Hall plead guilty. The item taken in the burglary was a stereo cartridge. The State introduced this evidence because the stereo cartridge was compatible with the radio equipment taken from the three radio stations for running a low power radio station.

The requirements for proper admittance of prior acts evidence is found in State v. Just (1979), 184 Mont. 262, 602 P.2d 957. At the procedural level, the party introducing evidence of prior acts must give advance notice of its intent to offer the prior acts into evidence. At the time that the evidence is offered, the judge must warn the jury that the prior acts evidence is admitted not to prove the defendant is of bad character but rather to show a common scheme, plan, or design by the defendant. Third, before jury deliberations, a special instruction is given to the jury to admonish them of the proper purpose for which the evidence is to be offered.

Once the State has fulfilled the requirements, the District Court applies the four-part test espoused in Just, 184 Mont. at 269, 602 P.2d at 961:

1. Similarity of crimes or acts;

2. nearness in time; and

3. tendency to establish a common scheme, plan or system; and

4. the probative value of the evidence is not substantially outweighed by the prejudice to the defendant.

Appellant contends that the burglary and the theft are not similar crimes. Although the charges are distinct, the acts are similar. Both were the illegal conversion of radio equipment, compatible for use in a low power radio station. In State v. Tecca (Mont. 1986), [220 Mont. 68,] 714 P.2d 136, 43 St.Rep. 264, we held that the acts come within the Just exception if they are sufficiently similar to sustain admission. In State v. Clausen (Mont. 1987), [228 Mont. 20,] 740 P.2d 679, 44 St.Rep. 1308, where the defendant was charged with possession of marijuana, psilocybin and magic mushrooms, evidence of prior acts of selling cocaine was admitted. We declared that the difference in the types of drugs and their quantities were irrelevant — the similarity was in the defendant’s actions.

In the case on appeal, although the charges were different, the defendant’s actions of illegally taking radio equipment were the same. The acts here are sufficiently similar.

The second Just requirement is nearness in time. Since there was a time span of only six months between the acts, remoteness is not at issue.

The third tier of the Just test is whether the prior acts tend to show a common scheme, plan or system. Both the equipment taken in the theft and the equipment taken in the burglary are suitable for use in a low power radio station. The equipment taken was similar. In both instances, appellant went to the business where the equipment was located, acting as if he was on official business, in order to gain entrance to take the equipment. This tends to show a common scheme, plan, or system.

Although there may be some showing of prejudice towards appellant by admitting evidence of prior acts, the probative value outweighs the prejudicial effect because the acts are similar, are near in time, and show a common scheme. It is important to look at all four factors of the Just test when determining the admissibility of prior acts evidence.

“. . . failure of questioned evidence to meet only one element of the Just test is not sufficient to refuse its admission, a decision to admit the evidence should not be made lightly. The four factors must be considered together.”

State v. T.W. (Mont. 1986), [220 Mont. 280,] 715 P.2d 428, 430, 43 St.Rep. 368, 371.

We hold that evidence of prior crimes or acts by Hall was properly admitted.

The second issue is whether the District Court properly admitted defendant’s testimony from the first trial in the second trial at which the defendant did not testify. Section 46-16-701, MCA, reads:

“A ‘new trial’ is a reexamination of the issue in the same court before another jury after a verdict or finding has been rendered. The granting of a new trial places the parties in the same position as if there had been no trial.”

In conjunction with Section 46-16-701, Section 46-16-702 provides in pertinent part:

“(1) Following a verdict or finding of guilty, the court may grant the defendant a new trial if required in the interest of justice.”

Appellant contends that Section 46-16-701 is applicable and that in the case of the second trial here, no testimony from the first trial can be used because it is a nullity.

The statutes show that a new trial may be granted only where there has been a “finding” or a “verdict of guilty” in the former trial. Black’s Dictionary defines a verdict as: “The formal decision or finding made by a jury, ...” A “finding” is defined as: “A decision upon a question of fact reached as the result of a judicial examination or investigation by a court, jury, . . . etc.” A hung jury is defined in Black’s as: “A jury so irreconcilably divided in opinion that they cannot agree upon any verdict.” Black’s Law Dictionary (5th ed. 1979).

Appellant contends that there was a “finding” in the previous trial and Sections 46-16-701 and -702 apply, preventing former testimony from being admissible. However, it is clear that there was no finding. The hung jury and mistrial do not meet the requisite standards of finding or verdict in Sections 46-16-701 and -702. Therefore, we hold that the statutes are not applicable. Sections 46-16-701 and -702 are concerned with a new trial in the interests of justice only for defendants who have been convicted. New trials where prior testimony is not allowed must be granted on a limited basis, limited by Sections 46-16-701 and -702 after a jury verdict of guilty or a finding of guilty by the court.

The District Court made its finding on the grounds that the former testimony by Hall was an admission of a party-opponent within the confines of Rule 801, M.R.Evid. Rule 801(d)(2) provides in pertinent part:

“(d) Statements which are not hearsay. A statement is not hearsay if:
“(2) Admission by party-opponent. The statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity, or (B) a statement of which he has manifested his adoption or belief in its truth . . .”

The State introduced the former testimony of Hall as an admission by Hall regarding his possession of the stereo and radio equipment in question. Statements made by a declarant who is a party-opponent are simply not classified as hearsay, but are admissions by him which are used later against his interest.

The statements made by Hall are reliable because they were made voluntarily, under oath, and with the opportunity of cross-examination. At the time that the appellant testified, he was represented by counsel and voluntarily took the stand. Once the defendant took the stand voluntarily, under oath, and subject to cross-examination, he made a knowing and intelligent waiver:

“A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him.”

Harrison v. United States (1968), 392 U.S. 219, 222, 88 S.Ct. 2008, 2010, 20 L.Ed.2d 1047, 1051. When appellant makes admissions, whether down at the local tavern or under oath, the statements can be used against his interest at later proceedings. The fact that the admissions have been made under oath bolsters their reliability. Therefore, under Rule 801(d)(2), M.R.Evid., in testifying at the first trial, the appellant made admissions which were properly admitted by the District Court in the second trial.

Applicable to the question of former testimony introduced into evidence at subsequent trials is Rule 804, M.R.Evid. Rule 804 provides, in pertinent part:

“Rule 804. Hearsay Exceptions: declarant unavailable.
“(a) Definition of unavailability. Unavailability as a witness includes situations in which the declarant:
“(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement; [Emphasis supplied.]
“(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
“(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, . . . (B) in criminal actions and proceedings, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, and redirect examination.”

Because Hall chose to not testify he was declared unavailable by the court as a matter of privilege. As an unavailable witness, his former testimony can be used in the second trial where he had the opportunity to decide whether or not to testify.

Whether testimony of the defendant from the previous trial may be used at the second trial is a question of first impression before this Court. There are no Montana cases which specifically address the use of prior testimony in subsequent trials. The Court of Appeals from the District of Columbia discussed the issue in Edmonds v. United States (D.C. Cir. 1959), 273 F.2d 108, 112-113, cert. denied, 362 U.S. 977, 80 S.Ct. 1062, 4 L.Ed.2d 1012:

“It is generally held, unless a statute directs otherwise, that a defendant in a criminal case who takes the stand in his own behalf and testifies without asserting his privilege against self-incrimination thereby waives the privilege as to the testimony given so that it may be used against him in a subsequent trial of the same case. The fact that the defendant does not take the stand at the second trial does not prevent the use of his testimony given at the former trial, if it would otherwise be admissible.”

Other federal cases have followed this general rule: United States v. Anderson (4th Cir. 1973), 481 F.2d 685, aff’d, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20; London v. Patterson (9th Cir. 1972), 463 F.2d 95, cert. denied, 411 U.S. 906, 93 S.Ct. 1531, 36 L.Ed.2d 196; Ayres v. United States (5th Cir. 1952), 193 F.2d 739; Warde v. United States (D.C. Cir. 1946), 158 F.2d 651; Heller v. United States (7th Cir. 1932), 57 F.2d 627, cert. denied, 286 U.S. 567, 52 S.Ct. 647, 76 L.Ed. 1298 (dictum).

A valid waiver of Fifth Amendment rights requires that the decision to testify be an intelligent decision with knowledge of its consequences.

“. . . when a witness voluntarily testifies, the privilege against self-incrimination is amply respected without need of accepting testimony freed from the antiseptic test of the adversary process .... Such a witness has the choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts and his reliability as a witness, not to testify at all.”

Brown v. United States (1957), 356 U.S. 148, 155, 78 S.Ct. 622, 627. 2 L.Ed.2d 589, 597.

In the case here on appeal, Hall was represented by counsel and made, a knowing waiver of his Fifth Amendment rights when he voluntarily chose to testify in the first trial. He was advised of his rights and therefore made a knowing and intelligent decision to testify. “[0]nce a defendant waives this privilege and testifies then his testimony can be used against him in a subsequent trial.” State v. Haggard (1971), 94 Idaho 249, 486 P.2d 260, 263. See also: People v. Arrington (Colo.App. 1983) 682 P.2d 490; People v. Carlson (Colo.App. 1983) 677 P.2d 390, aff’d, (Colo. 1986) 712 P.2d 1018; People v. Downer (1976) 192 Colo. 264, 557 P.2d 835; State v. Peele (1973) 10 Wash.App. 58, 516 P.2d 788. “[T]he defendant’s testimony at his first trial was clearly admissible at his second trial . . . [A] judicial confession or admission connected with the crime made in court is admissible.” State v. Stoneman (1977), 115 Ariz. 594, 566 P.2d 1340, 1343.

Appellant also contends that the former testimony was improperly admitted as rebuttal testimony. Hall claimed he received the radio equipment from PGL Company in New York. Other witnesses stated that Hall reported other means of acquiring the equipment. Testimony of appellant in the prior prosecution is properly admissible despite the fact that it was used as rebuttal testimony. United States v. Houp (8th Cir. 1972), 462 F.2d 1338, cert. denied, 409 U.S. 1011, 93 S.Ct. 456, 34 L.Ed.2d 305, reh. denied, 409 U.S. 1119, 93 S.Ct. 918, 34 L.Ed.2d 704.

We hold that the testimony of Hall in the first trial was properly admitted in the second trial according to Rules 801 and 804, M.R.Evid., and federal and state precedent.

The third issue is whether the doctrine of cumulative error is applicable in this appeal. The general rule of cumulative error is that reversal is required if a number of errors are accumulated which prejudice defendant’s right to a fair trial. State v. Meidinger (1972), 160 Mont. 310, 502 P.2d 58; State v. McKenzie (1978), 177 Mont. 280, 581 P.2d 1205.

Appellant contends that the prejudice to Hall by allowing prior acts evidence and his former testimony results in cumulative error. We have held the evidence of prior acts admissible and the former testimony properly admitted. Therefore, there is no cumulative error.

Affirmed.

MR. JUSTICES HARRISON, WEBER, GULBRANDSON, SHEEHY and McDONOUGH concur.

MR. JUSTICE HUNT,

concurring:

I concur in the result but not in all that is said in the majority opinion.


author: MR. JUSTICE HUNT

text:
    WILLIAM J. RUPNOW, JR., Plaintiff and Appellant, v. CITY OF POLSON, Defendant and Respondent.
    No. 88-99.
    Submitted on Briefs July 8, 1988.
    Decided Sept. 15, 1988.
    761 P.2d 802.

      Bothe & Lauridsen, P.C., David W. Lauridsen, Columbia Falls, for plaintiff and appellant.
    James E. Handley, Poison, for defendant and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

William J. Rupnow, plaintiff, appeals the decision of the District Court of the Twentieth Judicial District, Lake County, granting the City of Poison, defendant, summary judgment, pursuant to Rule 56, M.R.Civ.P., upon all three counts Rupnow sets forth in response to his termination from the City of Poison’s police department. The three counts Rupnow bases his complaint upon are wrongful discharge, breach of the implied covenant of good faith and fair dealing, and negligence. We affirm the District Court’s decision.

Rupnow raises the following issues on appeal:

1. Whether the District Court erred in granting the City of Poison’s motion for summary judgment regarding Rupnow’s claims based upon:

a. wrongful discharge

b. breach of the implied covenant of good faith and fair dealing

c. negligence.

Rupnow, a former Chief of Police for the City of Fort Benton, began working as a police officer for the City of Poison on July 15, 1985. Despite an ambiguity that exists regarding the length of a newly hired police officer’s probationary status, Rupnow accepted the position with the knowledge that he would be on a probationary status for the first year. In light of Rupnow’s past experience within law enforcement, Ronald Buzzard, who subsequently became the Chief of Police for the City of Poison, conveyed to Rupnow that the one year probation period should not be a problem for him. Rupnow was to be evaluated once every three months throughout the probationary period.

Rupnow was first evaluated on September 30, 1985 by then-Assistant Chief of Police Buzzard. The evaluator Buzzard stated on the evaluation form that Rupnow was “doing a good job, no apparent difficulties.” The evaluation marks given to Rupnow at this time supported this conclusion. Buzzard subsequently testified that although he experienced a couple difficulties with Rupnow, he did not mention the difficulties because he did not want “to come down on him too hard” during the first three month period.

Rupnow’s second evaluation occurred on January 20, 1986 by the then-Acting Chief of Police Buzzard. Twenty categories were listed on the performance evaluation report, Buzzard determined that Rupnow met the department’s standards in seventeen areas, exceeded the standard in one area, and required improvement in two areas. In rating Rupnow’s overall performance, Buzzard checked the box that stated “requires improvement.” Buzzard’s written comments on this evaluation included the following:

“Section B: Record job STRENGTHS and superior performance incidents.
“Officer Rupnow is very knowledgeable in police work and has a lot of potential. He gets along well with fellow employees and is courteous to the public. He has a lot of ideas which will benefit the police department and city in the future.
“Section C: Record PROGRESS ACHIEVED in attaining previously set goals for improved work performance, for personal, or job qualifications.
“None previously set.
“Section D: Record specific GOALS or IMPROVEMENT PROGRAMS to be undertaken, during next evaluation period.
“Officer Rupnow is to spend more time patrolling the streets of Poison looking for traffic violators, patrolling alleys and providing basic police services.
“Section E: Record specific work performance DEFICIENCIES or job behavior requiring improvement or correction ....
“Officer Rupnow is spending too much time sitting around doing nothing. This includes staying in the sheriffs office too long and taking too long of coffee breaks. This is possibly the reason his volume of work is low.”

Rupnow refused to sign this second performance evaluation and instead presented a formal protest to the mayor of Poison together with his formal application for the permanent Chief of Police position that was then available.

Rupnow was informed on March 21, 1986, at a meeting attended by Councilwoman Malgren, Mayor DeVries, Sergeant Witts, Chief Buzzard, and Rupnow, that his appointment as probationary Poison police officer was being withdrawn. Chief Buzzard and Mayor DeVries expressed to Rupnow that a primary concern of theirs was his tendency to refuse to follow Chief Buzzard’s orders. The reasons Buzzard recommended to the Mayor that Rupnow’s appointment be withdrawn were (1) failure to attend a training meeting; (2) failure to complete a log book; (3) complaints regarding Rupnow “setting up” a councilman for selling alcohol to minors; and (4) complaints by Rupnow that a fellow officer had made derogatory comments about him. The withdrawal was confirmed by a letter from Mayor DeVries dated March 24, 1986.

Rupnow then brought a complaint against the City of Poison in the Twentieth Judicial District Court, Lake County, alleging wrongful discharge, breach of the implied covenant of good faith and fair dealing, and negligence. The District Court granted the City of Poison’s motion for summary judgment. Rupnow appeals.

la. Wrongful Discharge

The first issue Rupnow raises on appeal is whether the District Court erred in granting the City of Poison’s motion for summary judgment regarding Rupnow’s claim based upon wrongful discharge.

Under Rule 56(c), M.R.Civ.P., a district court may grant a party’s motion for summary judgment when the court finds that “no genuine issue as to any material fact” exists. Evans v. Montana Nat’l Guard (Mont. 1986), [223 Mont. 482,] 726 P.2d 1160, 1161, 43 St.Rep. 1930, 1932; Clarks Fork Nat’l Bank v. Papp (Mont. 1985), [215 Mont. 494,] 698 P.2d 851, 853, 42 St.Rep. 577, 579; Cereck v. Albertson’s Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 511. As the moving party, the City of Poison has the initial burden to present the court with evidence that excludes any real doubt as to the existence of a genuine issue of material fact and that therefore it is entitled to a judgment as a matter of law. If the City of Poison meets this burden, the burden then shifts to the opposing party, Rupnow, to establish by substantial evidence the existence of genuine issue of material fact. VanUden v. Hendricksen (1980), 189 Mont. 164, 169, 615 P.2d 220, 223-24; Dooling v. Perry (1979), 183 Mont. 451, 456, 600 P.2d 799, 802.

In the present case, under Count I, Rupnow claims that he was wrongfully discharged from the Poison’s police department. Specifically, Rupnow argues that the City of Poison violated public policy by not following the progressive discipline policy adopted by the City of Poison on March 3, 1986. This section of the City of Poison’s personnel policy reads as follows:

“10. PROGRESSIVE DISCIPLINE. It is the responsibility of authority in charge to insure that all City employees subject to disciplinary [sic] measure receive corrective action appropriate to the offense and progressive in nature. The following procedure should be used:
“1. First Offense .... Oral Warning
“2. Second Offense .... Written Warning
“4. Fourth Offense .... Dismissal
“It should also be understood that, depending upon the nature and circumstances of the «violation, the authority in charge may use any disciplinary measure appropriate within their judgment.”

The City of Poison disputes Rupnow’s allegations and argues that it pursued the alternative method of discipline provided in the policy, which allows the authority in charge to use their judgment in using any appropriate disciplinary measure after considering the nature and circumstances of the violation. The District Court found that the City of Poison, through the Mayor’s and Buzzard’s affidavits, met its burden of proof by showing that no genuine issues of material fact existed with respect to a public policy violation, but that Rupnow failed, after the burden shifted to him, to show by substantial evidence that genuine issues of material fact exist to show that the City of Poison did not comply with its personnel policy. We agree.

To successfully maintain the tort of wrongful discharge, a plaintiff must show that the defendant violated a public policy. Dare v. Montana Petroleum Marketing Co. (1984), 212 Mont. 274, 281, 687 P.2d 1015, 1019; Nye v. Dept. of Livestock (1982), 196 Mont. 222, 228, 639 P.2d 498, 502; Keneally v. Orgain (1980), 186 Mont. 1, 5-6, 606 P.2d 127, 129. Rupnow argues that a violation of the City of Poison’s personnel policy is a violation of public policy and that the City of Poison violated its personnel policy when it did not follow the progressive disciplinary measures outlined in the policy.

The City of Poison’s personnel policy, however, specifically allows for an alternative means of disciplining city employees. In this case, the City of Poison presented substantial evidence to the District Court that its personnel pursued the alternative approach available to them and exercised their judgment in imposing disciplinary measures upon probationary officer Rupnow, which included oral warnings and written evaluations specifying areas that required improvement. Rupnow, on the other hand, failed to address the City of Poison’s option to pursue the alternative method of disciplining employees and instead merely offered its conclusion of law that since the City of Poison never followed the progressive disciplinary method, it violated its personnel policy and therefore violated public policy. Conclusions of law will not suffice in opposing a movant’s motion for summary judgment. VanUden, 189 Mont. at 169, 615 P.2d at 224; Silloway v. Jorgenson (1965), 146 Mont. 307, 310, 406 P.2d 167, 169; Gates v. Life of Montana Insurance Co. (1982), 196 Mont. 178, 182, 638 P.2d 1063, 1066. We therefore affirm the District Court’s finding that the City of Poison did not violate its personnel policy, and therefore no genuine issue of material fact exists with respect to the issue of a public policy violation.

lb. Implied Covenant of Good Faith and Fair Dealing

The second issue Rupnow raises on appeal is whether the District Court erred in granting the City of Poison’s motion for summary judgment regarding Rupnow’s claim based upon breach of the implied covenant of good faith and fair dealing.

This Court first adopted the implied covenant of good faith and fair dealing in Gates, 196 Mont. at 184, 638 P.2d at 1067, and then extended it to probationary employment relationships in Crenshaw v. Bozeman Deaconess Hospital (Mont. 1984), [213 Mont. 488,] 693 P.2d 487, 491, 41 St.Rep. 2251, 2258. The standard, however, as to whether the covenant applies remains the same under all circumstances. In Dare we held that the applicable standard in determining:

“[wjhether a covenant of good faith and fair dealing is implied in a particular case depends upon objective manifestations by the employer giving rise to the employee’s reasonable belief that he or she has job security and will be treated fairly.”

Dare, 212 Mont. at 282, 687 P.2d at 1020.

The District Court found that Rupnow “failed to show the existence of any facts to support a claim of any objective Rupnow, manifestation by the City to support [his] expectations.” We agree. Rupnow first asserts that the City of Poison violated its personnel policy and therefore breached the implied covenant of good faith and fair dealing. This assertion by Rupnow is irrelevant since we have affirmed the District Court’s finding that the City of Poison did not violate its personnel policy.

Rupnow next attempts to argue the existence of objective manifestations that would lead him reasonably to believe that he had job security by pointing towards his two performance evaluations, and comments made to him by Buzzard, stating that the one year probation period should not be a problem for Rupnow. The District Court found that Buzzard’s comment that the probationary period should not be a problem for Rupnow, by itself, is not sufficient to satisfy Rupnow’s burden in opposing the City of Poison’s motion for summary judgment. The court found that the comment was no more than an acknowledgment by Buzzard of Rupnow’s prior experience in law enforcement. We affirm and further hold that Rupnow’s two performance evaluations, in addition to Buzzard’s comment, still do not establish objective manifestations by the City of Poison that would lead an employee, Rupnow, reasonably to believe that he had job security. Rupnow’s second evaluation, although satisfactory overall, definitely gave Rupnow indications that he needed to improve his performance in specific areas.

In addition, Rupnow argues and the record indicates that a dispute exists as to whether Chief Buzzard or Mayor DeVries warned him that his probationary status was in jeopardy. Oral warnings that an employee’s probationary status is in jeopardy are not mandatory. The absence of such warnings are merely considered in light of other evidence when determining whether objective manifestations existed to lead to an employee’s reasonable belief of job security. Considering all of the evidence Rupnow presents in an attempt to show that he had a reasonable belief of job security, we hold that the absence of such warnings, by themselves, do not constitute a material fact that would bar the District Court from granting the City of Poison’s motion for summary judgment.

lc. Negligence

The last issue Rupnow raises on appeal is whether the District Court erred in granting the City of Poison’s motion for summary judgment regarding his claim based upon negligence.

This Court has recognized that negligence is a proper basis for recovery in wrongful termination cases. Flanigan v. Prudential Federal Savings & Loan (Mont. 1986), [221 Mont. 419,] 720 P.2d 257, 263, 43 St.Rep. 941, 948; Crenshaw, 693 P.2d at 493, 41 St.Rep. at 2259. We have also recognized that summary judgment is appropriate in negligence cases when the standard is met. The standard remaining that no genuine issue of any material fact exists so that as a matter of law the non-moving party cannot recover. Morales v. Tuomi (Mont. 1985), [214 Mont. 419,] 693 P.2d 532, 535, 42 St.Rep. 60, 63-64.

In the present case, Rupnow first argues under this claim that the City of Poison breached its duty by not following its personnel policy when terminating Rupnow. This argument of Rupnow’s is irrelevant since we have already affirmed the District Court’s finding that the City of Poison did not violate its personnel policy.

Rupnow next argues that Chief Buzzard failed to investigate adequately certain allegations against him. Chief Buzzard obviously did not conduct an investigation to Rupnow’s satisfaction, however, Rupnow does not bring forth evidence to raise a genuine issue of material fact that Buzzard was negligent in his investigation. Rupnow merely offers conclusory statements, stating in his opinion what a reasonable investigation would include.

In setting forth his argument, Rupnow relies upon Crenshaw, where this Court held that the employee’s allegation of negligence was clearly established. In reaching this holding we took note of the evidence offered by the employee, specifically a former director’s testimony that he had failed to interview all of the appropriate witnesses, an administrator’s admissions that he failed to interview key witnesses, and testimony by an expert on personnel management, stating that the allegations upon which the discharge was made were not properly investigated. Crenshaw, 693 P.2d at 493, 41 St.Rep. at 2258-59.

The evidence set forth in Crenshaw is not analogous to the evidence presented by Rupnow. Rupnow did not have an expert testifying that Buzzard improperly investigated an incident. Buzzard testified that all key witnesses were interviewed at least once. Rupnow failed to meet his burden in bringing forth evidence that would raise a genuine issue of material fact that the City of Poison was negligent. His statements, for example, that a reasonable investigation would have “consisted of calling the various parties together ... to determine an exact chronology of events and a more reasonable determination as to who was telling the truth” are merely conclusory. We therefore hold that the District Court properly found that the City of Poison was entitled to judgment as a matter of law based upon Rupnow’s claim of negligence.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER, SHEEHY, GULBRANDSON and McDONOUGH concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WILLIAM JO ARTHUR, Defendant and Appellant.
    No. 88-159.
    Submitted on Briefs Aug. 4, 1988.
    Decided Sept. 15, 1988.
    761 P.2d 806.
    Larry Jent, Bozeman, for defendant and appellant.

      Mike Greely, Atty. Gen., Helena, Kathy Seeley, Asst. Atty. Gen., Helena, A. Michael Salvagni, Co. Atty., Bozeman, Jennifer Bordy, Deputy Co. Atty., for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

William Jo Arthur, the defendant, was convicted of driving under the influence of alcohol in Gallatin County Justice Court. The District Court of the Eighteenth Judicial District, Gallatin County, dismissed defendant’s appeal from Justice Court. Defendant appeals. We affirm.

The sole issue raised on appeal is whether Section 46-17-311, MCA, requires an appellant from Justice Court to District Court to file physically his notice of appeal within 10 days after judgment.

On November 18, 1987, William Jo Arthur was found guilty of driving under the influence of alcohol and was sentenced in open court. The 10 day time limit for giving notice of appeal from Justice Court to District Court would normally have expired on November 28, 1987. However, because November 28 fell on a Saturday, the time limit was extended to the following “working” day, Monday, November 30, 1987, as provided by Section 1-1-307, MCA. Defendant therefore had two additional days in which to give notice of his intent to appeal.

Counsel for the defendant executed the notice of appeal on November 27, 1987, and mailed it on November 30, 1987, the final day on which notice could be given. The notice was received and filed in Justice Court on December 1, 1987. The District Court dismissed the appeal on the ground that the notice was not filed within the 10 day limit prescribed by Section 46-17-311, MCA.

The right to appeal a Justice Court criminal conviction to district court is given by Section 46-17-311, MCA, which provides in part:

“(1) All cases on appeal from justices’ or city courts must be tried anew in the district court
“(2) A party may appeal to the district court by giving written notice of his intention to appeal within 10 days after judgment, except that the state may only appeal in the cases provided for in 46-20-103.”

This statute is the only method by which a district court can acquire jurisdiction over an appeal from justice court. Because the right to appeal is given exclusively by statute, we have consistently held that strict compliance with Section 46-17-311, MCA, is necessary to perfect an appeal. State v. Hartford (Mont. 1987), [228 Mont. 254,] 741 P.2d 1337, 1338, 44 St.Rep. 1500, 1501; State v. Province (Mont. 1987), [226 Mont. 425,] 735 P.2d 1128, 1129, 44 St.Rep. 775, 776.

Strict compliance with the statute requires that notice be given in a timely manner. Hartford, 741 P.2d at 1338, 44 St.Rep. at 1501. We have previously held that in Justice Court the time for appeal runs from the date of oral pronouncement of judgment in open court. State v. Mortenson (1978), 175 Mont. 403, 405, 574 P.2d 581, 582. The issue that arises on this appeal is whether “giving written notice” means simply mailing the notice of appeal within the statutorily prescribed 10 day limitation period or whether it requires that notice must be actually received by the court within that period. We hold that written notice of a party’s intention to appeal a criminal conviction from Justice Court must be physically filed with the Justice Court within 10 days after judgment.

This holding is directly in line with a previous case interpreting the notice provision of the Justice Court criminal appeals statute. In Mortenson, we construed Section 95-2009, R.C.M. (1947), the predecessor of Section 46-17-311, MCA. Like the present statute, Section 95-2009, R.C.M. (1947), spoke only of “giving written notice” of intent to appeal. It did not mention actual filing. Even so, we concluded that “written notice of appeal must be filed with the Justice Court within the ten day period.” Mortenson, 175 Mont. at 405, 574 P.2d at 582. (Emphasis added.) We continued,

“In the absence of a specific provision regarding Justice Courts this language of section 95-2413, R.C.M. 1947, is applicable:
“(a) Filing. Papers required or permitted to be filed must be placed in custody of the clerk within the time fixed for filing. Filing may be accomplished by mail addressed to the clerk, but filing shall not be timely unless the papers are actually received within the time fixed for filing.

Mortenson, 175 Mont. at 405, 574 P.2d at 582.

Section 95-2413, R.C.M. (1947), quoted above, later became Section 46-20-502, MCA, which was superseded by amendments to the Montana Rules of Appellate Procedure by Supreme Court Order of June 16, 1986, effective January 1, 1987. Throughout these changes, however, the wording of the statute remained the same, and the pertinent part of Rule 20(a), M.R.App.P., is identical to the 1947 statute cited in Mortenson. The only difference between Rule 20(a) and Section 95-2413, R.C.M. (1947) is that the latter statute governed criminal appeals from all Montana courts, while the Rules of Appellate Procedure explicitly cover criminal appeals from the District Courts to the Supreme Court only. Rule 1(a), M.R.App.P. Despite this change, the reasoning of Mortenson is as applicable today as it was in 1978, and the Rules of Appellate Procedure may be applied to clarify the language of the Justice Court criminal appeals statute.

Our determination that giving written notice means actual filing is consistent with recent cases construing Section 46-17-311, MCA. In State v. Tecca (Mont. 1986), [220 Mont. 68,] 713 P.2d 541, 43 St.Rep. 180, the defendant filed a notice of appeal five days after sentencing. The notice was defective, however, because it improperly stated that the appeal was to Justice Court rather than District Court. Defendant then filed a corrected notice of appeal. We agreed with the District Court that the corrected notice, filed 11 working days after judgment, was not timely. We overturned the District Court’s dismissal of the appeal, however, because the Justice Court had actually received notice of appeal within the 10-day limitation period. See also, Hartford, 741 P.2d at 1338, 44 St.Rep. at 1501; and Province, 735 P.2d at 1129, 44 St.Rep. at 776-777.

Our position is further supported by our decision in Schaffer v. Champion Home Builders Co. (Mont. 1987), [229 Mont. 533,] 747 P.2d 872, 44 St.Rep. 2196. In that case, a civil wrongful death action, plaintiff had mailed his complaint three working days prior to the expiration of the statute of limitations. The complaint was not received by the court until one day after the limitation period had expired. We concluded that filing is not the same as mailing. “Unlike service by mail, which is complete on the date of mailing, filing by mail is not complete until the pleading is placed in the custody of the clerk of court.” Schaffer, 747 P.2d at 874, 44 St.Rep. at 2198.

Our holding that “giving written notice” requires physical filing with the court furthers the policy of the limitation period by insuring that appeals from Justice Court judgments are undertaken in a timely manner. The duty of the appellant is to make certain that written notice of appeal is actually received by the clerk of the Justice Court within 10 days after oral pronouncement of judgment.

Although William Jo Arthur mailed his notice of appeal within the time frame prescribed by the appeals statute, the Justice Court did not receive the notice until one day after the limitation period had expired. Hence, Arthur did not meet the dictates of Section 46-17-311, MCA.

The District Court’s order dismissing the appeal is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, GULBRANDSON and McDONOUGH concur.


author: MR. JUSTICE SHEEHY MR. JUSTICE WEBER,

text:
    In re the CUSTODY OF PIERRE DANIEL ANDRE, a minor child. PATRICK G. ANDRE, Petitioner and Respondent, v. CAROL DOBSON, a/k/a Ann McAllister, Respondent and Appellant.
    No. 88-21.
    Submitted on Briefs July 14, 1988.
    Decided Sept. 16, 1988.
    761 P.2d 809.

      Klaus D. Sitte, Montana Legal Services, Missoula, for respondent and appellant.
    Thomas W. Trigg, Missoula, for petitioner and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Carol Dobson, the natural mother, appeals from the findings of fact, conclusions of law and order of the District Court of the Fourth Judicial District, Missoula County, which granted custody of the minor child to Patrick Andre, the natural father. We reverse.

Although the parties vigorously contest the factual basis of the District Court’s opinion, we conclude that the dispositive issue is one of first impression: namely, what is the appropriate burden of proof justifying a change of physical custody when the child has been living with a parent pursuant to a custody agreement which has not been scrutinized by a court?

Carol Dobson (Mother) and Patrick Andre (Father) met during the summer of 1977 while both parties were residing in Arizona. The parties soon began living together but never married. Their son was born in August 1978.

Pierre is Father’s only child. Mother has two other children from an earlier marriage. Mother had custody of the two children following her divorce but admitted she was not a good mother. The children were subsequently placed in foster care by the Arizona Child Protective Services based on reports of neglect. The children were later returned to Mother during her relationship with Father but she was unable to control the children. They were eventually placed with mother’s ex-brother-in-law voluntarily.

For most of Pierre’s first four years, Mother and Father lived together and shared parental responsibility. During a portion of this time, Father was the primary caretaker while Mother supported the family through employment as an exotic dancer. Mother later resumed the role of primary caretaker when Father obtained employment on a seismograph crew.

In 1982, the parties separated permanently. At that time, Mother and Father agreed that Mother would retain custody of Pierre while Father returned to school and “got his life together.” Father was to pay an undetermined amount of child support and would be allowed to see Pierre when he wanted to. The agreement was oral and not presented for judicial approval.

From 1982 until 1984, Father’s contact with, and support of, Pierre was irregular. Beginning in the fall of 1984, Father took a more active role in his son’s life. Visitation increased significantly but was still not regular. According to Father, Mother’s interference and constant moves were partially responsible for the irregularity. Father continued to pay minimal child support.

Upon separation, Mother became acquainted with Gary Mitchell as a result of four-year-old Pierre’s wandering away and appearing at Mr. Mitchell’s door. Mr. Mitchell and Mother later began living together and eventually married. At one point in the relationship, Mother left Mr. Mitchell and later moved in with Roger Garman but continued to see Mr. Mitchell. While Mother was living alone, Pierre would usually sleep in the front room when Mother had male guests spend the night.

Father began the instant action in 1985 as a result of perceived problems with Pierre. Father was disturbed by Pierre’s alleged lack of personal hygiene, inadequate dress, lack of responsibility, failure to obey his parents, lying, stealing, pants wetting, and failure to do well at school. Father and his wife attempted to resolve the problems through constructive, consistent discipline and by enrolling Pierre at a private school at their expense. They have largely remedied the problems.

Mother, on the other hand, is alleged to be unwilling or unable to resolve Pierre’s difficulties. An impartial child psychologist retained by both parents determined that Mother’s lack of parenting skills and the instability in her life had had a negative impact on Pierre. Although Pierre was having problems in school, Mother did not consistently help with his homework on the days Pierre was with her because of her lack of time and her problems understanding the work.

Her response to other problems has also been less than adequate. When Pierre took twenty dollars from her purse and bought himself a watch, Mother allowed him to keep the watch as a birthday present. She explained that he may have thought the money was his because it came from his father. Incidents of stealing gum were dealt with by having Pierre return the gum or by Mother keeping it. Pierre is also allowed to be aggressive. He refers to his mother as Carol and issues commands to her during play. Similarly, Mother did not interfere in a fight she observed because Pierre was sticking up for a friend and allows Pierre to be rough with animals.

The psychologist concluded that Mother’s constant changes of residence and attempts to change Pierre’s name had led to so much instability and confusion in Pierre’s life that he was not sure what his name was. In addition, Mother’s smoking of marijuana in front of Pierre had not provided a good role model. The psychologist therefore recommended that Father be granted custody with reasonable visitation by Mother. The District Court agreed.

The dispositive issue in the instant case is the District Court’s use of the best interests test, as delineated in Section 40-4-212, MCA, to deprive Mother of custody. Mother argues that her de facto custody of the child since birth imposes a higher burden upon a parent seeking to deprive the custodial parent of custody. We agree.

Although Montana has not addressed the issue of de facto or de jure custody arrangements, the issue has been examined by our sister state of California. In Burchard v. Garay (1986), 42 Cal.3d 531, 229 Cal. Rptr. 800, 724 P.2d 486, the court was confronted with the question of the applicable standard of proof, justifying a change of custody in a situation in which the mother had maintained a de jure custody since the child’s birth two and one-half years earlier. Before reaching the merits, the court first examined the nature of the changed circumstances rule urged by the mother and the best interests test urged by the father. It reasoned:

“The changed-circumstance rule is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest test. It provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child’s best interest. The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements. (Citations omitted.)”

229 Cal. Rptr. at 802, 724 P.2d at 488.

Inexplainably, the California majority went on to hold that the changed circumstances rule did not apply because there had not been a prior judicial determination, a decision which, on its face, conflicts with the stated goal of fostering stability in a child’s life.

Stability of custody arrangements, whether created judicially, by agreement, or by default, is one of the most crucial factors in a child’s development. Recognizing this fact, “the Uniform Marriage and Divorce Act in effect creates a presumption that the best interests of the child are served by continuation of initial custodial arrangements and allows this presumption to be overcome only in the most limited circumstances.” Sharp, Modification of Agreement-Based Custody Decrees: Unitary or Dual Standard?, 68 Va.L.Rev. 1263, 1267-1268 (1982). See generally, Sections 40-4-212(4) and 40-4-219, MCA. We see no reason why this presumption should be ignored in de facto or de jure custody arrangements. As noted by Justice Mosk in his concurring opinion:

“First, the limited application of the changed-circumstance rule that the majority adopt is in conflict with the primary purpose of this rule. The child whose custody was established by means other than judicial decree has the same need for and right to stability and continuity — and accordingly the same entitlement to the protection the rule is intended to provide — as the child whose custody was established by judicial decree. Because it is not unreasonable to assume that the children of two-parent and relatively more affluent families are disproportionately represented in the class of children whose custody was originally established by judicial decree, the majority’s holding, I fear, will effectively deny needed protection disproportionately to children of single-parent and less affluent families.
“Second, most states — including, until today, California — appear to require ‘changed circumstances’ to modify custody regardless of how custody was originally established. [Citation omitted.] The rationale for this position was explained in [In re Marriage of] Carney, [1979, 24 Cal.3d 725, 157 Cal.Rptr. 383, 598 P.2d 36,]: ‘regardless of how custody was originally decided upon, after the child has lived in one parent’s home for a significant period it surely remains “undesirable” to uproot him from his “established mode of living,” and a substantial change in his circumstances should ordinarily be required to justify that result.’ ” [Citation omitted.]

Burchard, 229 Cal.Rptr. at 811, 724 P.2d at 497.

Although the end of a relationship is a time of great trauma, parents generally love their children and have the greatest interest in determining which of them can best care and provide for the child. Black v. Black (1906), 149 Cal. 224, 86 P. 505, 506. In addition, parents are in a much better position to determine custody arrangements. Hassell v. Means (1979), 42 N.C. App. 524, 257 S.E.2d 123, 127. It would be unrealistic to assume that the welfare of a child can better be determined by a court after a short period of self-interested testimony. We therefore conclude that the changed circumstances rule and best interests test, as set forth in Section 40-4-219, MCA, is applicable when a parent seeks modification of a de facto custody arrangement.

However, the primacy of the child’s, not the parents’, interests requires additional recognition and protection. Occasionally, in rare situations, it may appear that while circumstances have remained unchanged, custody was clearly inadequate since its inception. In such situations, strict application of the change of circumstances rule would work as a serious injustice to the child and contravene the benefits of the flexibility inherent in the interaction of the changed circumstances-best interests standard. As stated in Svennungsen v. Svennungsen (1974), 165 Mont. 161, 167, 527 P.2d 640, 643:

“We do not want to be understood as implying that a substantial change in circumstances would be required as a threshold finding in every factual situation before the issue of custody could be litigated on a petition to modify custody . . . [W]e would be receptive to the proposition that a showing of unfitness on the part of the person having custody, or some other justifiable grounds might suffice and, despite a failure to show a substantial change of circumstance, enable the district court to consider the issue of custody on a petition to modify custody.”

See also, Burchard, 229 Cal. Rptr. at 813, 724 P.2d at 499 (Mosk, J., concurring). We offer no opinion on whether this exception is applicable in the instant case.

The judgment of the District Court is reversed and remanded for a determination of whether a change of circumstances has occurred or the above-stated exception applies. The court is also instructed to cause separate counsel to be appointed to represent the interests of Pierre. Costs to Mother.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, McDONOUGH and HUNT concur.

MR. JUSTICE WEBER,

dissenting:

I express reservation about this holding because I do not feel that the facts of this case justify what I consider to be a change in our custody statutes. I do not dispute the importance of recognizing the length of time a parent serves as the primary caretaker of a child whose custody has not yet been determined under our statutory scheme. However, this Court should not override the extensive findings and judgment of the District Court in this case based on the requirement of finding a change in circumstances. Unlike the majority, I do not feel that the District Court ignored the fact of mother’s primary caretaker role. Counsel for the mother repeatedly stressed the 9 years in which the child had been in her care, with increased involvement by the father through visitation beginning when the child was 6 years old and continuing to the present. The District Court made extensive findings regarding the competence of both parents, which adequately justify his decision to award custody to the father even in light of the mother’s role as primary caretaker. I would defer to the judgment of the District Court in this matter and affirm this decision. Even under the majority’s holding I find substantial evidence in the record to justify the District Court’s determination. I respectfully dissent.

MR. JUSTICE GULBRANDSON joins in the foregoing dissent.