author: JUSTICE WEBER

text:
    JOHN H. CROWLEY, Plaintiff and Respondent, v. VALLEY WEST WATER COMPANY, a Montana corporation, R MONTANA, INC., a Montana corporation, and MISSOULA WATER WORKS LIMITED PARTNERSHIP, a Montana limited partnership, Defendants and Appellants.
    No. 91-587.
    Submitted on Briefs August 4, 1994.
    Decided October 13, 1994.
    51 St.Rep. 976.
    267 Mont. 144.
    882 P.2d 1022.

      For Appellant: George C. DeVoe, Missoula.

      For Respondent: Christopher B. Swartley, Datsopoulos, MacDonald & Lind, Missoula.
   JUSTICE WEBER

delivered the Opinion of the Court.

Defendants appeal the Order of the District Court of the Fourth Judicial District, Missoula County, appointing a receiver to administer their assets during the pendency of this litigation. In addition to the request for appointment of a receiver, plaintiff has also asserted claims of fraudulent conveyances and alleged a constructive trust; these claims are not before this Court at this time. We affirm.

The sole question in this appeal is whether the District Court erred in appointing a receiver to handle assets of defendants.

Plaintiff John H. Crowley (Crowley) and Valley West Water Company (Valley West) negotiated a written contract signed July 1,1981, agreeing to transfer Crowley’s shares of stock in Valley West back to the corporation for $75,000. Crowley was president of Valley West and owned 25 percent of total shares prior to the sale. The only other shareholder was Charles Isaly (Isaly), secretary of the corporation.

The contract between the parties provided that $20,000 would be paid to Crowley by January 4,1982, and that the $55,000 remaining balance would be amortized over ten years and paid in quarterly installments at 12 percent interest on the declining balance. The contract also provided for additional security, including the requirement that an escrow account be established for payments to Valley West, so that Crowley would receive his payments under the contract before the balances could be paid to Valley West. The contract also provided that Crowley’s rights to receive quarterly payments would be protected if Valley West transferred its interest in the water system operating rights to another entity. Further, it had provisions relating to default by Valley West by which Crowley could foreclose on Valley West pursuant to foreclosure provisions for trust indentures, to apply as though the security provided by Valley West was real property subject to a trust indenture.

Valley West’s major asset was the water system operating rights it owned under an agreement with the City of Missoula. When Valley West and Crowley contracted to sell Crowley’s stock back to Valley West in 1981, Crowley knew that Valley West intended to try to sell its operating rights. Valley West sold the operating rights on November 18,1982 to R Montana, Inc. The same day, R Montana, Inc. sold the operating rights to Missoula Water Works Limited Partnership (Missoula Water Works). Concurrently, Missoula Water Works executed an agreement with Valley West to ‘lease back” the operating rights to Valley West. Although Montana law requires that any sale of assets of a public utility be approved by the Montana Public Service Commission, the Commission did not approve any sale of Valley West’s assets between 1981 and 1991 and does not recognize either of these sales as valid.

For approximately eight years, quarterly payments under the contract between Crowley and Valley West were made as agreed through the escrow account. Starting in September 1989, Valley West stopped making these payments. Pursuant to the contract’s default provisions, Crowley gave thirty days notice of default to Valley West on April 9,1990, and instituted the breach of contract action against Valley West on June 19,1990. Crowley later amended the complaint to include claims for fraudulent conveyance and constructive trust. After Valley West notified its customers that effective June 1, 1991, Missoula Water Works would assume revenue collection responsibilities for customer water charges, Crowley amended his complaint again to add Missoula Water Works as a defendant.

Isaly is president and sole shareholder of Valley West and the only general partner of Missoula Water Works. An addendum to the 1982 lease agreement between Missoula Water Works and Valley West, which was signed by Isaly for both entities, states they had

just and substantial cause to believe that in the near future there will be attempts by creditors of Lessee to attach or in some way interfere with the flow of customer payments to Lessee for water services.

This addendum, dated June 4,1991, allowed Missoula Water Works to collect income for water services that previously was paid directly to Valley West. Isaly subsequently stated in a letter to Ron Woods of the Public Service Commission dated June 17, 1991, that

the reason for this change [in payee to Missoula Water Works] is so that the Internal Revenue Service cannot interrupt the cash flow stream from the water system customers pursuant to a tax hen that they have filed against Valley West Water Company.

On June 6, 1991, partial summary judgment in this action was granted by the District Court in favor of Crowley, giving him a money judgment in the amount of $32,818.31 for contract damages and attorney’s fees of $6,000.00, the total of $38,818.31 to accrue interest at 12 percent.

Although Valley West was involuntarily dissolved by the Secretary of State as of February 28, 1985, it has continued to operate in a corporate capacity by holding itself out as a corporation and doing business under its former name. In fact, Valley West requested approval from the Public Service Commission and was granted a rate increase under that name in 1990. According to Ron Woods of the Public Service Commission, the assets of Valley West, including the rights under the Agreement with the City of Missoula, still remain with Valley West, and would so remain unless and until a transfer request was submitted and approved by that entity. Nonetheless, Missoula Water Works collected the accounts for Valley West for water services beginning in June 1991.

In addition, Valley West and Missoula Water Works both use the same telephone numbers and addresses in Missoula and in Phoenix, Arizona, which is also Isaly’s mailing address. The District Court determined that the intermingling of names, addresses and telephone numbers and the status of Isaly as general partner and president indicated that Isaly’s actions on behalf of the entities in question constitute an effort to avoid legitimate creditors’ claims and that Isaly seemed to control all of the entities, including R Montana, Inc. Further, the court determined that the transactions were undertaken with little or no attention to the requirements of Montana law in regulating corporations, particularly private utility companies, or to the legitimate interest of creditors, including the IRS and the plaintiff. Payments have gone to Isaly at the same address in Phoenix both before and after the name change.

Because Valley West’s major asset, the water system operating rights, had been transferred to Missoula Water Works and then leased back to Valley West, Crowley was unable to collect the money due him from Valley West. On September 5,1991, Crowley moved the District Court to appoint a receiver to administer assets of Valley West, Missoula Water Works and R Montana, Inc. The court determined that immediate action needed to be taken to prevent irreparable damage to Crowley by virtue of the transfers of assets between entities. The District Court granted Crowley’s motion on October 22, 1991, stating:

For the Court to allow the continuance of the transfer during the litigation would produce great and irreparable injury to Plaintiff Crowley, due to the lack of other assets and the dissolved status of Defendant Valley West Water Company. Furthermore, it appears that during the course of the litigation, Defendant Valley West Water Company, through Mr. Isaly, is undertaking transfers in violation of the rights of a judgment hen creditor, respecting the subject of this action which would tend to render Plaintiff Crowley’s Judgment ineffectual if concluded; such conduct consists in the removal or disposition of Valley West Water Company’s property from the State of Montana with the stated purpose of avoiding legitimate creditor’s [sic] claims. Pecuniary compensation would not afford adequate relief to the Plaintiff under the circumstances.

This appeal concerns only the appointment of a receiver in this action. Valley West filed an application to stay the order appointing a receiver on October 30, 1991, which was subsequently denied by the District Court.

Defendants Missoula Water Works and Valley West have filed petitions for bankruptcy in the United States Bankruptcy Court for the District of Arizona. Valley West filed a Chapter 7 bankruptcy petition on January 17, 1992, and Missoula Water Works, as debtor and debtor in possession, initiated a Chapter 11 bankruptcy reorganization in April 1993. Crowley moved for and was granted temporary lifting of the stay in the Valley West Chapter 7 proceeding pending resolution of the Montana District Court action on April 5, 1993. Missoula Water Works initiated its Chapter 11 proceeding later the same month. After more than two years of proceedings in state court including the removal of both bankruptcy stays in the Arizona Bankruptcy Court, Missoula Water Works removed this case to federal district court. On March 7, 1994, Judge Lovell remanded the case to state court and this appeal followed.

Did the District Court err in appointing a receiver to handle the assets of defendants?

Valley West contends that the District Court erred in appointing a receiver because Crowley failed to show that his claim of fraudulent conveyances is probable of succeeding at trial or that Valley West has any interest in the operating rights under the agreement with the City of Missoula. According to Valley West, because the propriety of the receivership hinges upon the validity of Crowley’s claim for fraudulent conveyances, Crowley must show that he will prevail on that claim. Therefore, Valley West contends that the court should not have appointed the receiver nor ordered that the receiver set aside the 1982 sales. Although they are not in agreement about the probability of success concerning the claim for fraudulent conveyances, both Valley West and Crowley agree that there is a genuine issue of material fact here concerning the statute of limitations for fraud. The issue involves the application of the “discovery doctrine” to the facts of this case.

An order appointing a receiver is immediately reviewable by this Court pursuant to Rule 1(b)(2), M.R.App.P. However, any other findings and conclusions reached by the District Court in this case are not reviewable at this time. Thus our review is limited in scope to only such evidence as was relied on by the District Court to reach the conclusion that a receiver be appointed. Our standard of review for discretionary trial court rulings is abuse of discretion. Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603-04.

District courts in Montana have statutory authority to appoint receivers. Section 27-20-102, MCA, governs the appointment of a receiver and provides in pertinent part:

27-20-102. When and. by whom receiver appointed. Areceiver may be appointed by the court in which an action is pending or by the judge thereof:
(1) in an action ... by a creditor to subject any property or fund to his claim ... on the application of the plaintiff or of any party whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured;
(3) after judgment, to carry the judgment into effect;...

Section 27-20-102, MCA, remains virtually unchanged since it was originally enacted and provides for specific instances where a receiver may be appointed. It also continues the common law of courts of equity in instances where receivers had been appointed prior to February 1, 1864. See § 27-20-102(5), MCA. For those instances where the petition to appoint a receiver is based upon statute, as here, § 27-20-102(1), MCA, explains what must be shown by the petitioner. The plaintiff must have a probable right to or interest in the property or fund or proceeds thereof and the property or fund must be in danger of being lost, removed, or materially injured.

Prior Montana cases concerning receivership emphasize that the power to appoint a receiver is to be exercised sparingly and not as a matter of course. Further, a strong showing must be made and even then, that power is to be exercised with conservation and caution. See, e.g., Little v. Little (1951), 125 Mont. 278, 234 P.2d 832. A receiver is appointed in a matter pending litigation to preserve and manage property prior to a decision on the merits of the litigation.

A receiver cannot be appointed in an action merely for the purpose of collecting a judgment debt. Little, 234 P.2d at 835. Thus, if Crowley was merely a judgment creditor as argued by Valley West, he could not use the remedy of receivership to protect his interests. In this case, the matter is not that of a simple judgment debt, but it is a judgment debt for which a hen attached to the actual property which is the substance of the alleged fraudulent transfer. Crowley’s allegation of fraud concerning the multiple transfers of that asset remains to be litigated.

The District Court determined that Crowley had demonstrated sufficient evidence to establish a prima facie case for fraud and further ruled that there are genuine issues of material fact as to whether the two-year limitation for an action alleging fraud had been tolled by the “discovery doctrine.” These issues cannot be reviewed by this Court until a final judgment is reached on their merits. Until that issue is resolved, without a receivership, customer payments would continue to be made to Missoula Water Works at the address in Arizona which is also the address for Charles Isaly, the alleged perpetrator of the fraud.

This Court has held that a receivership is justified where there is a fraudulent appropriation of partnership funds, together with the probability of insolvency and the danger that money in which plaintiffs have an interest will ultimately be lost to them. The purpose of the receivership in such a case is to prevent the partner at fault from dissipating the property and thereby defeating the objective of the ancillary suit. Stoner v. Hannan (1942), 113 Mont. 210, 223, 127 P.2d 233, 236-37. It is a general rule that, aside from statutory provisions, in order to obtain the appointment of a receiver, the plaintiff “must show that the possession of the property by defendant was obtained by fraud, or that the property itself, or the income arising from it, is in danger of loss from neglect, waste, misconduct, or insolvency,” particularly where the defendants control the property under a claim of right. 75 C.J.S. Receivers § 18 (1952). This Court has followed the general rule holding that a receiver will not be appointed if there is another way to protect the property in question or otherwise achieve the desired outcome. See State ex rel. Larry C. Iverson, Inc. v. District Court (1965), 146 Mont. 362, 371, 406 P.2d 828, 833.

Applying § 27-20-102, MCA, together with the general rule as previously applied to other Montana cases on receivership, to the record before us, we conclude that the District Court properly appointed a receiver in this case. The record discloses that both Valley West and Missoula Water Works have filed bankruptcy petitions in Arizona and the United States Bankruptcy Court for the District of Arizona has lifted the stays in those proceedings for the purpose of allowing the resolution of this litigation to proceed. The filing of those petitions infers representations of insolvency by Isaly on behalf of both Missoula Water Works and Valley West. Payments from some 225 water customers totalling approximately $7,000 per month were directed, pursuant to a letter by Isaly in June of 1991, to be paid to Missoula Water Works in Arizona rather than to Valley West, and the income stream is thus being diverted out of Montana. Isaly’s letter was written within days of the judgment in the District Court in favor of Crowley against Valley West.

In addition, Valley West and Missoula Water Works have delayed the resolution of this case by filing bankruptcy petitions and by removing the case to federal district court in Montana. Crowley has already been injured by the necessity of responding to these actions on the part of defendants and is in danger of further injury if a receiver is not appointed to administer the assets of these entities until such time as the District Court reaches its decision on the merits. Contrary to the position taken by Valley West, it is not necessary that plaintiff show that he is absolutely, conclusively, or incontrovertibly entitled to the relief he has asked for; it is sufficient that he appears to have reasonable expectations of succeeding, that there is a showing of a reasonable probability of ultimate success, or that his right to a judgment is probable. This is particularly so when the plaintiff has a lien on or interest in the fund in the hands of the defendant. 75 C.J.S. Receivers § 11 (1952).

Crowley’s interest in Valley West’s assets is not in controversy here. However, the major asset of Valley West was transferred to R Montana, Inc. and then to Missoula Water Works and then leased-back to Valley West all in the same day in 1982. Although Crowley knew that Valley West was going to attempt a sale of assets, his testimony indicates he had no reason to participate in or to question the actual sales that subsequently occurred. He continued to receive payments through the escrow agent and testified to his belief that his security interest in Valley West’s assets was intact. Valley West continued to collect accounts receivable until the time Crowley was granted a judgment against Valley West in June of 1991 when Isaly directed that payments be made from that time onward to Missoula Water Works instead of to Valley West, but continued to operate in the same manner in all other respects.

An affidavit signed by Isaly indicates that the limited partnership was established as an attempt to create a tax advantage pursuant to a tax loophole which was later extinguished under the 1986 Tax Reform Act. Isaly did not obtain approval for any of the transfers from the Public Service Commission. He did, however, write to the Commission in 1991 to explain the change in payee for customer accounts to Missoula Water Works as an attempt to evade an IRS lien on Valley West’s cash flow. He also added an addendum to the lease agreement between Missoula Water Works and Valley West to change the terms of the lease to reflect the change in payee, explaining the purpose as one of avoiding execution on assets by judgment creditors. Crowley is the only demonstrated judgment creditor, according to the record. This demonstrates that the major asset, the water system operating rights, is in danger of loss, removal or material injury.

Valley West also contends that, to be “probable,” Crowley must show that his claims are not time-barred. The District Court’s decision states there are genuine issues of material fact regarding tolling of the statute of limitations. This threshold issue also remains to be decided and no more probable showing can be made at this point than a demonstration of facts — already made here — that defeat a motion for summary judgment on the issue. We conclude the facts relied on by the District Court, which are in the record at this point, are sufficient without further proof to support the court’s appointment of a receiver for the reasons stated by the District Court and restated in this opinion.

We hold the District Court did not abuse its discretion by appointing a receiver in this case.

Affirmed.

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


source: Caselaw Access Project

author:
JUSTICE NELSON JUSTICE HARRISON,
      JUSTICE TRIEWEILER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DONALD BARRACK, Defendant and Appellant.
    No. 93-086.
    Submitted on Briefs July 6, 1994.
    Decided October 13, 1994.
    51 St.Rep. 983.
    267 Mont. 154.
    882 P.2d 1028.

      For Appellant: J. Dirk Beccari and Marcia M. Jacob son, Public Defender Office, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Carol Schmidt, Assistant Attorney General; Robert L. Deschamps, HI, Missoula County Attorney, Fred Van Valkenburg, Deputy Missoula County Attorney.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from a Fourth Judicial District Court, Missoula County, jury verdict finding Donald Barrack, guilty of aggravated assault, and from the accompanying judgment filed on August 21, 1992. We affirm.

The following are issues on appeal:

I. Did the District Court err in treating Barrack’s motion for a new trial as a petition for post-conviction relief under a writ of coram nobis?

II. Did the District Court err when it denied Barrack’s motion for a new trial based upon insufficient evidence to support the jury verdict?

III. Did the District Court err when it denied Barrack’s motion for a new trial based upon his “excusable mistake” in failing to subpoena hospital records containing the victim’s blood alcohol content?

FACTUAL BACKGROUND

The defendant/appellant, Donald Barrack (Barrack), was living in a trailer at 4625 Graham, Westview Trailer Court in Missoula, Montana, with Robert Cole (Cole), whom Barrack worked with at the Mahlum Ace Hardware Store in Missoula. Robert Cole owned the trailer with his wife, Joan Cole (Joan), from whom he had separated in August of 1991. Joan and Cole decided to sell the trailer during January and February of 1992, and they were able to find a buyer. The buyer wanted to move into the trailer within a week of closing.

This was a problem because Barrack was still living in the trailer. Cole also still lived there “on and off’ but he spent a great deal of time at the home of Sue Llewellyn (Sue), who was his fiancee. At the time of the sale of the trailer, he was in the process of moving into her home.

Joan and Cole met with Barrack on February 13, 1992, to inform him that the trailer had been sold and he would have to vacate the trailer in a very short time. Cole and Barrack “finally worked it out,” ending their negotiations with a signed note stating that Barrack would vacate the trailer around February 20. They then went to two taverns in town, spent about two hours together and drank a few beers. Barrack left the second tavern, Mulligan’s, but Cole stayed with another friend and continued drinking.

At some point later in the evening, Cole and his friend, Marty, went to a tavern in Marty’s neighborhood. A fight started at the neighborhood tavern, the police were called to end, the altercation, and they took Cole and Marty to Marty’s house because the two men were not able to drive. When Cole arrived at Marty’s house, he called Sue to come and get him. Sue arrived at Marty’s house, retrieved Cole and as they were driving to Sue’s house, they started to discuss whether Barrack had left the trailer. Sue wanted to make sure that Barrack was either packing or had moved out so she drove to the trailer.

Testimony after that point in time is contradictory. Cole testified that when they arrived at the trailer, they went to the front door, knocked loudly, heard no answer, went to the back door, knocked, heard no answer, and tried the front door one more time. The two went to the car, discussed the issue for a while, Cole tired of the discussion, and he walked away. Cole also testified that while the two were going from door to door, they were yelling, screaming and making loud noises. He further testified that the porch light and a yard light were on, as well as a light under the hood of the stove in the kitchen.

Cole stated that when he walked away, Sue got back in the car, pulled out of the driveway, stopped and pulled back into the driveway. He decided to return to the car, walked back to where it was parked and as he came around the car, he saw Barrack standing near the car, holding a gun and Sue laying by the car.

Sue testified that she was taking care of Cole and Joan’s child on the evening of February 13, 1992, because Cole was out celebrating his friend, Marty’s birthday. She stated that he called her from Marty’s house later in the evening for a ride and they discussed the situation with Barrack and the trailer as she was driving. She testified that they drove to the trailer, both walked to the front door, knocked hard, received no answer, went to the back door to knock, and then returned to the front door. She testified that she was yelling at Cole at the time and there were outside lights on but none inside as far as she could see. After they received no response, the two walked back to the car, continued to fight and then Cole started to walk away.

Sue got in the car in an attempt to follow him, changed her mind, turned the car off, and went back to the front door. The door was locked so she kicked the door as hard as she could. On the third try, she kicked the door open, took a step inside the door, then she saw a flash, and felt a bullet enter her chest.

Mike Davenport, a trailer park neighbor, testified that at about 10:15 or 10:20 on the evening in question, he heard a loud banging and noise. He went to his door and looked outside in the direction of the pounding. He saw a woman hollering, screaming and pounding on the door. He said he could not see any lights on at the house nor was there a light on the porch. He stated that he could just see one person, a woman, pounding on the door and yelling. She could not get inside so she returned to the car, and tried to get the person in the car to help her get into the trailer. She had a fight with the person in the car until the other person left and started walking down the street. Davenport then saw the woman get into the driver’s side of the car, start the engine, start to leave, pause and return to the trailer. At that point, he went to get dressed, and while he was returning to where he had been watching the events of the night, he heard a loud, high-pitched crack. He testified that when he got to the door, he looked out and saw the woman walking, leaning over a bit, to the rear of her car. She was looking up the street toward where the person who left the car had walked and ultimately, she collapsed. At that point, Mike Davenport called 911 and reported the incident.

Barrack testified that he discussed the move from the trailer on February 13, 1992, with Cole and Joan. After Joan left, Cole and Barrack came to an agreement that Barrack would move to another place within a week. At a later point in time, the two men went to a tavern called Joker’s Wild for a few beers. The two then met with Cole’s friend, Marty, to celebrate Marty’s birthday and the three drank beer at a tavern called Mulligan’s. Barrack left that tavern after drinking 1 1/2 beers, ordered some takeout food from a restaurant, went home, ate, watched television and went to sleep. He stated that he went to bed around 8:30 to 9:00.

Barrack further testified that he had been asleep for some time when he thought he heard knocking at the back door, “more of a feeling of something striking the trailer than I had heard, but I thought I heard a knock,” and he went to the back door. He further reported that he did not put on his glasses because he was not sure that he had heard or felt something, he thought perhaps it was a gust of wind rocking the trailer. He did not hear anything at the back door so he returned toward the bedroom and as he was proceeding, he heard a loud crash which physically rocked the trailer.

He stated that he grabbed his pistol because of the violence of the repeated crashing that followed. He went to the front of the trailer, still listening to the banging, which was “exceedingly violent and rapid.” He asked, ‘Who is it?” and received no response. He repeated his question, then stated, “[d]on’t kick the door in, I’m armed.” Barrack heard kicking at the door, the door flew open, he backed up, saw a large human form, unidentifiable, rush through the door and then he recalls the “muzzle flash when the gun went off.”

PROCEDURAL BACKGROUND

On February 21, 1992, a deputy county attorney of Missoula County filed an affidavit and motion for leave to file an information on Donald Barrack, charging him with committing the offense of aggravated assault, a felony, pursuant to § 45-5-202(1), MCA. The motion was granted on that same day and on March 4,1992, Barrack was arraigned and pled “not guilty.” Trial in the matter commenced on June 29, 1992, and a jury found Barrack guilty of the offense of aggravated assault on June 30,1992.

On August 5,1992, Barrack’s motion for a new trial was heard and sentence was pronounced against him. He was sentenced to Montana State Prison for 10 years, with all but two years suspended. The final judgment of the court was filed on August 21, 1992, confirming Barrack’s sentence of 10 years in prison with all but two years suspended. Later that same day, the District Court filed an order amending the judgment, suspending the entire prison term under certain conditions.

Barrack filed a written motion for a new trial on August 26,1992. Ahearing on the motion for a new trial was held on December 16, and on December 17, 1992, an opinion and order was filed, stating that at an October 14, 1992, post trial hearing, “the Court informed the parties that it [would] treat the Defendant’s Motion for New Trial as a Petition for Post Conviction Relief under a Writ of Coram Nobis pursuant to § 46-21-101(1), MCA.” The District Court denied the motion for a new trial (petition for post-conviction relief) on the issues of the sufficiency of the evidence and the alleged failure of the State to provide medical reports on the victim’s blood alcohol content at the time of the incident. Barrack appealed to this Court on January 5, 1993.

STANDARD OF REVIEW

The standard of review for denial of post-conviction relief is whether substantial evidence will support the findings and conclusions of the district court. Walker v. State (1993), 261 Mont. 1, 6, 862 P.2d 1, 4.

I. POST-CONVICTION RELIEF

Barrack makes two arguments regarding his motion for a new trial — 1) there was insufficient evidence to support the jury’s verdict and 2) the State’s alleged failure to provide Barrack with the test results of the victim’s blood alcohol content on the night of the incident. However, before deciding those issues, we take this opportunity to clarify the District Corut’s treatment of Barrack’s motion for a new trial as a petition for post-conviction relief. In its opinion and order, dated December 17,1992, the District Court stated that it would treat the motion for a new trial as a petition for post-conviction relief under a writ of coram nobis, pursuant to § 46-21-101(1), MCA.

However, a writ of coram nobis is no longer available as a remedy for post-conviction relief. Section 46-21-101(1), MCA, provides as follows:

When validity of sentence may be challenged. (1) A person adjudged guilty of an offense in a court of record who has no adequate remedy of appeal and who claims that a sentence was imposed in violation of the constitution or the laws of this state or the constitution of the United States, that the court was without jurisdiction to impose the sentence, that a suspended or deferred sentence was improperly revoked, or that the sentence was in excess of the maximum authorized by law or is otherwise subject to collateral attack upon any ground of alleged error available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy may petition the court that imposed the sentence or the supreme court to vacate, set aside, or correct the sentence or revocation order.

“The post-conviction hearing statutes are an attempt by the legislature to consolidate all of the common-law statutory remedies normally available to challenge a sentence.” In re McNair (1980), 189 Mont. 321, 323, 615 P.2d 916, 917. While the Constitution of Montana (Art. II, Sec. 19) and Title 46, Chapter 22, Parts 1 through 3 of the Montana Code Annotated, provide for separate habeas corpus proceedings, Montana law does not provide for a separate writ of coram nobis.

The State argues that Barrack’s motion for a new trial was untimely, should have been denied, and that it was improper to treat the motion as a petition for post-conviction relief. Barrack was found guilty of aggravated assault on June 30,1992. According to § 46-16-702(2), MCA, a motion for a new trial must be in writing and filed by the defendant within 30 days following a finding of guilty. The State points out Barrack’s written motion for a new trial was not filed until August 26, 1992. Therefore, Barrack’s motion for a new trial was untimely because it was not filed within 30 days of the verdict and for this reason, the State contends, Barrack’s motion should have been summarily denied.

Barrack’s motion for a new trial was indeed, untimely. However, under Rule 5, M.R. App. P, he could have filed an appeal within 60 days of the judgment. The judgment in the instant case was filed on August 21, 1992; the last day for Barrack to appeal his case would have been October 21, 1992. However, at a post-trial hearing on October 14, the District Court informed Barrack that it would treat his motion for a new trial as a petition for post-conviction relief. At this point in time, Barrack still could have appealed his case. However, the District Court’s decision to treat the motion as a petition for post-conviction relief may have effectively curtailed any attempt Barrack may have made to appeal within the remaining statutory time limit.

Even though Barrack was possibly lulled into inaction as far as appealing during the statutory time limit, he must still be allowed an opportunity to seek review of his case before this Court. In Fitzpatrick v. State (1983), 206 Mont. 205, 210-211, 671 P.2d 1, 4, in discussing § 46-21-101, MCA, the post-conviction relief statute, we stated that:

“The first element of the test which a petitioner must satisfy is that petitioner be “adjudged guilty of an offense in a court of record who has no adequate remedy of appeal...” This phrase does not mean that a petitioner may avail him or herself of the appellate review process, and, when the results are unfavorable, utilize the post-conviction review procedure to, in effect, file numerous and successive “appeals.” The language of the statute for part one of the test clearly intends this form of relief to be available to convicted persons who have not had their sentences reviewed by the appellate court. It is clearly an abuse of the relief procedure to withhold issues which could and should have properly been raised on appeal....”

In the instant case, Barrack did not have an opportunity to avail himself of the appellate review process because of the District Court’s treatment of his untimely motion for new trial as a petition for post-conviction relief. He effectively did not have an opportunity to properly raise issues on appeal. Moreover,

[a]buse of process occurs where an applicant raises in post-conviction proceedings a factual or legal contention which the petitioner deliberately or inexcusably failed to raise in the proceedings leading to conviction, or having raised the contention in the court, failed to pursue the matter on appeal.

McKenzie v. Osborne (1981), 195 Mont. 26, 34, 640 P.2d 368, 373. Barrack did not deliberately or inexcusably fail to pursue the matter on appeal because he was unintentionally misled by the District Court, thereby failing to appeal within the proper time period. The abuse of the post-conviction relief process is not a concern in this case because there is no evidence that Barrack intentionally failed to appeal or failed to exercise due diligence in seeking review of the legal issues raised.

The District Court erred in treating Barrack’s untimely motion for a new trial as a petition for post-conviction relief under § 46-21-101(1), MCA, and as a writ of coram nobis. Nevertheless, because the District Court possibly lulled the defendant into a position where he did not timely pursue his appeal rights, we will affirm the District Court’s decision to rule on the merits' of Barrack’s untimely motion for new trial.

In doing so we wish to emphasize, however, that our decision here is not in any way to be read as enlarging the scope of post-conviction relief or as diminishing a defendant’s obligation to timely file a motion for a new trial and a petition for post-conviction relief or appeal in accordance with the applicable statutes. The circumstances of this case are unique.

II. INSUFFICIENCY OF THE EVIDENCE

“The standard of review of the sufficiency of the evidence is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Bower (1992), 254 Mont. 1, 6, 833 P.2d 1106, 1110.

Barrack argues that there was insufficient evidence to support the jury’s verdict of guilty of aggravated assault. He contends that:

Ms. Llewellyn’s appearance and demeanor on the witness stand were very sympathetic. No hint emerged of her intoxicated and irrational rage on the night in question. The defense believes that Mr. Barrack was convicted because the jury’s emotions were inflamed by the idea of a former law enforcement officer shooting a woman they perceived as someone he should have recognized under any circumstance.

Finally, Barrack claims that he was the victim, not the aggressor, and that he was acting in self-defense. At trial, he pled the affirmative defense of justifiable use of force. Although Barrack argues there was insufficient evidence to support his conviction,

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

Bower, 833 P.2d at 1111. Moreover, in determining whether the use of force was justified, “[t]he mere fact that defendant testified to a self-defense claim does not entitle him to an acquittal;” the trier of fact must weigh the testimony and decide whether Barrack acted with the belief that the use of force was necessary and his belief was reasonable. Bower, 833 P.2d at 1111. In essence, the jury must determine whether the defendant was justified in his use of force when Sue entered the trailer on the evening in question.

In the instant case, the jury weighed the evidence, assessed the credibility of the witnesses and determined that the State’s witnesses were more credible. They determined that Barrack was not justified in his use of force against Sue Llewellyn and that he was guilty of aggravated assault. As stated above, the fact that the defendant’s testimony conflicts with the State’s witnesses does not render the evidence insufficient to support a conviction. Here, the jury’s verdict is sufficiently supported by the evidence.

There was testimony that there was adequate lighting for a person inside the trailer to see anyone outside knocking on the doors. Both Sue and Cole testified that Barrack knew Sue well enough to recognize her if he saw her. Moreover, there was testimony that there was enough noise, with the knocking and other sounds being made, that a person inside the house would have heard that there were people outside the trailer. Sue testified that Barrack did not ask “[w]ho are you?” nor did she hear anyone say “I’m armed, [d]on’t come in here,” or warn her at all when she was entering the trailer. She testified that she did not feel that there was anyone in the trailer at the time she entered.

“The [trier of fact] is not bound to blindly accept defendant’s version of the facts. It is free to pick and choose the evidence it wishes to believe.” Bower, 833 P.2d at 1111, citing State v. Sorenson (1980), 190 Mont. 155, 170, 619 P.2d 1185, 1194. Here, the jury chose to believe the State and, as stated above, there is sufficient evidence to support the jury’s verdict. The District Court did not err in denying Barrack post-conviction relief based on his claim that there was insufficient evidence to support the jury’s verdict.

III. BLOOD ALCOHOL REPORT

Barrack argues that defense counsel was relying on a longstanding course of conduct with the State when it failed to subpoena records of Sue’s blood alcohol content for use during the trial. He asserts that his error in failing to discover her blood test is excusable because in the past, the State routinely provided law enforcement reports, including blood test results, upon request by the defense attorneys. Barrack’s attorney had requested results from the State and the Sheriff’s Office but did not receive them so he was led to believe that there were no test results. The attorney did not realize there were blood test results until he subpoenaed them on August 4, 1992, in preparation for sentencing.

The State contends that Barrack wanted the State to conduct his own discovery for him. It also states that it did not subpoena the blood alcohol records at any time nor did it use any information regarding the blood alcohol content of the victim at trial.

A hearing was held on the issue of the blood alcohol results on December 16, 1992, in which defense counsel testified that he had asked Lt. Brannin and Mr. Van Valkenburg, a deputy county attorney, for blood alcohol reports. Counsel stated that Lt. Brannin told him he did not think that there was a blood alcohol test because she was a Jehovah’s Witness. Further, counsel stated that although available from St. Patrick’s Hospital, he did not receive a copy of the blood alcohol results until he subpoenaed them for sentencing purposes. He argued at the hearing that if he had known that he was not going to get them through the sheriff’s office, he would have gotten them on his own, but he was led to believe that none existed because he had never had a “problem in getting anything from the sheriff’s department or county attorney’s office in the past, and I think it was just a mistake that they missed it....”

When Brannin testified, he stated that he remembered that the fact that Sue was a Jehovah’s Witness was a factor in the case, but that he did not remember any specific request for blood alcohol results. Brannin also testified that he never received a blood alcohol test for Sue, although Brannin did know she had been drinking that evening because she did acknowledge the fact during a police interview. Moreover, Brannin had prepared a memorandum to the deputy county attorney stating that “there was certainly no specific request for this information,” referring to the blood alcohol results.

The Deputy County Attorney stated at the hearing that when the defense attorney interviewed Sue, she did tell counsel that she had had “either two or three glasses of wine mixed with 7-Up, or something of that nature, prior to the incident that night.” Moreover, the county attorney asserted, she also told Brannin that she had been drinking when she made her statement to the police officer and that statement was made available to the defense but defense counsel never cross-examined Sue on that issue at trial.

The District Court, in its order of December 17, 1992, stated the following:

Hearing on Defendant’s petition was had on December 16,1992 with defense counsel testifying that he asked State’s counsel for blood alcohol results on the victim and was referred to the sheriff’s office. Defense counsel further testified that the investigative officer in the Sheriff’s office said he did not think there was one because the victim was a Jehovah’s witness. The officer testified at hearing that he does not recall the conversation and that his files do not contain blood alcohol results for the victim. Defense counsel subpoenaed the hospital records following trial for sentencing purposes and those records contained blood alcohol results of the victim.
The Court would grant Defendant a new trial if the State had exculpatory evidence in its possession which was not available to Defendant and did not turn over the evidence to defense counsel. However, it does not appear the State had the blood alcohol results on the victim in its possession. The hospital records were equally available to both parties by subpoena and therefore the evidence is not newly discovered evidence which was unavailable for trial and a new trial is not warranted in this case.

We agree with the District Court that it does not appear that the State had blood alcohol results on Sue in its possession. Moreover, the hospital records were available to both parties by subpoena. Defense counsel had information that she had been drinking and if counsel thought that jury knowledge of her drinking may have changed the outcome of the trial, it was counsel's responsibility to request the information from the sheriff’s office or county attorney’s office in a formal manner if informal requests were of no avail. A written request for the necessary information addressed to the county attorney’s office or a request to the District Court for an order requesting that the information be made available to the defendant could have been employed to obtain the blood alcohol results, pursuant to § 46-15-322, MCA.

The problem of the prosecution failing to reveal evidence necessary for a defendant’s case is not present here. Lt. Brannin stated that they did not have any reports on Sue’s blood alcohol level on the night of the incident and never requested such reports. “Police officers may not frustrate or hamper a defendant’s right to obtain exculpatory evidence but they have no affirmative duty to gather such evidence absent express statutory mandate.” State, City of Bozeman v. Heth (1988), 230 Mont. 268, 272, 750 P.2d 103, 105. We recently clarified the State’s obligation of disclosure under § 46-15-322, MCA, in State v. Licht (1994), [266 Mont. 123], 879 P.2d 670, 673. While, as we pointed out in that case, subsections (l)(a) through (d) and subsections (2)(a) through (c) of that statute require the prosecution to disclose all material and information described, whether inculpatory or exculpatory, and while subsection (l)(e) requires disclosure of all exculpatory or mitigating material or information, there is no obligation under the statute for the State to disclose material or information which it does not have in its possession. Here, neither the prosecution nor the police had the blood alcohol results and they had no affirmative duty to obtain them. Therefore, the District Court did not err when it denied the motion for a new trial (petition for post-conviction relief) based on Barrack’s argument that his failure to discover Sue’s blood test results was an excusable mistake.

AFFIRMED.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and WEBER concur.

JUSTICE HARRISON,

dissenting.

I respectfully dissent. Section 45-3-103, MCA, provides:

Use of force in defense of occupied structure. A person is justified in the use of force or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other’s unlawful entry into or attack upon an occupied structure. However, he is justified in the use of force likely to cause death or serious bodily harm only if:
(1) the entry is made or attempted in violent, riotous, or tumultuous manner and he reasonably believes that such force is necessary to prevent an assault upon or offer of personal violence to him or another then in the occupied structure; or
(2) he reasonably believes that such force is necessary to prevent the commission of a forcible felony in the occupied structure.

If § 45-3-103, MCA, had been followed by the jury in this case, a not guilty verdict would have resulted. Clearly, the evidence showed that Sue Llewellyn was the aggressor. She broke into an occupied dwelling in the middle of the night by creating a scene and then kicking down the door. Such actions are a clear invasion of defendant’s home and he was justified in his use of force in defense of his home. I would reverse and remand for a new trial.

JUSTICE TRIEWEILER

specially concurring in part and dissenting in part.

I concur with the majority’s resolution of Issues I and II. I dissent from that part of the majority opinion which concludes that there was sufficient evidence to convict defendant of aggravated assault.

Based on the undisputed evidence, I conclude that justifiable use of force by defendant was established as a matter of law and that judging the evidence in the light most favorable to the prosecution, no rational trier of fact could have found defendant guilty of aggravated assault beyond a reasonable doubt.

Donald Barrack testified that on February 13,1992, he was awakened in the middle of the night by a blow to his trailer that was so violent it physically rocked the trailer. He went to the back door, but heard nothing further in that vicinity. The next thing he knew, there was a loud crash in the vicinity of the front door of his home, which again physically rocked the trailer as if it had been hit by a motor vehicle. He picked up his pistol and went to the area of his front door where the crashing sound continued. The impact to his home was exceedingly violent and rapid and continued to occur with such force that it rocked his whole trailer. He asked the person outside to identify herself, but received no response. With all the noise described by both Barrack and his neighbor, it is not surprising that the violent and aggressive intruder did not hear his question.

He then advised the person outside, “Don’t kick the door in, I’m armed.” He still received no response, and after several more kicks, the door flew open. He backed away from the door, not knowing who was entering his home. The next thing he observed was alarge human form rushing through the door, despite his repeated warnings. He was understandably scared and upset and feared for his safety. He fired his pistol in the direction of the door, striking the intruder.

Defendant testified that at no time prior to firing his pistol in the direction of the intruder did he recognize her as Sue Llewellyn.

Defendant’s testimony clearly established the affirmative defense of justifiable use of force in defense of an occupied structure, which is set forth at § 45-3-103, MCA. That statute provides that:

A person is justified in the use of force or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other’s unlawful entry into or attack upon an occupied structure. However, he is justified in the use of force likely to cause death or serious bodily harm only if:
(1) the entry is made or attempted in violent, riotous, or tumultuous manner and he reasonably believes that such force is necessary to prevent an assault upon or offer of personal violence to him or another then in the occupied structure; or
(2) he reasonably believes that such force is necessary to prevent the commission of a forcible felony in the occupied structure.

The majority opinion correctly points out that if defendant’s testimony was contradicted in some material respect, it was up to the jury to resolve the factual issue created by that contradiction. However, defendant’s testimony was not contradicted in any material respect. There were only two witnesses to the incident which formed the basis of the charges against defendant. The other witness was Sue Llewellyn, the person who forcibly and violently broke into his home. The only relevant part of her testimony related to her activity after her boyfriend left the scene on foot.

She stated that she got back out of her car and returned to defendant’s home with the express purpose of breaking in. She tried the knob, but it was locked. She kicked the door with as much force as she could until it flew open. After the door opened, she was not screaming, yelling, or saying anything else that would enable defendant to identify her. Furthermore, she testified that because of the darkness inside the trailer, she could not see inside.

With her identity concealed by that same darkness, she entered the trailer without identifying herself. Only at that point was she shot.

Llewellyn acknowledged that she had no right to kick in the door to defendant’s home. She had been warned before going to the trailer that he was still living there, but was angry about his continued presence and intended to do something about it.

Based upon the testimony given by the only two witnesses who have full knowledge of what happened that evening, Llewellyn’s entry was made in a violent, riotous, and tumultuous maimer, and defendant had every right to believe that force likely to cause seriously bodily harm was necessary in order to prevent an assault on himself.

It is truly shocking that a person abruptly awakened in the middle of the night by an unknown intruder who violently and forcibly breaks into to his or her home, can be convicted of a felony punishable by 20 years in the State Prison and a fine of $50,000 for taking reasonable measures to protect himself.

While the prosecutor, the jury, and the majority may, with the benefit of hindsight, conclude that defendant was not in danger of serious bodily harm from Llewellyn’s violent assault on his home, defendant did not have the benefit of hindsight, anymore than he had the benefit of knowing the intruder’s identity or intentions before making his split-second decision to defend himself.

He had no way of knowing whether the intruder was armed or unarmed. However, based upon the intruder’s disregard for his warning, and based upon the manner of her entry, he had every right to presume that her intentions were hostile and a threat to his well-being.

For these reasons, I dissent from that part of the majority opinion which concludes that there was sufficient evidence to convict defendant of aggravated assault. I would reverse the judgment of the District Court and remand for entry of judgment dismissing all charges against defendant, Donald Barrack.

JUSTICE HUNT, joins in the foregoing concurring and dissenting opinion.


author: JUSTICE HUNT,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BETH ANN BRISTOW, Defendant and Appellant.
    No. 93-574.
    Submitted on Briefs July 13, 1994.
    Decided October 20, 1994.
    51 St.Rep. 1010.
    267 Mont. 170.
    882 P.2d 1041.

      For Appellant: Chris Christensen, Conrad.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Carol Schmidt, Assistant Attorney General, Helena; and Thomas J. Esch, County Attorney, Kalispell.
   JUSTICE HUNT,

delivered the Opinion of the Court.

Defendant Beth Ann Bristow appeals from a jury verdict of the Eleventh Judicial District Court, Flathead County, finding her guilty of accountability for aggravated kidnapping, and a judgment sentencing her to 30 years in the Women’s Correctional Facility and designating her a dangerous offender for the purposes of parole eligibility.

We reverse.

Defendant raises the following issues:

1. Did the District Court err in permitting the State to inquire into the criminal history of defendant’s witness?

2. Did the District Court err in admitting into evidence and permitting the jury to view color photographs of the victim’s injuries?

3. Was there sufficient corroboration of the accomplices’testimony?

Defendant and Tom Boesch had been common-law married since 1987. The marriage produced two children, Bruce and Ryan. In February 1992, Boesch filed a petition for dissolution after defendant decided to move with the children from the Kalispell area to Battle Mountain, Nevada, to be near Rick Crosthwaite. Both parties filed petitions for temporary custody of the two children. Boesch was eventually awarded temporary custody of the children. Following the custody hearing, defendant returned to Nevada and began spending time with Dwayne Todd Cannady and Rick Smith, friends of Crosthwaite. Cannady testified that defendant offered him money to beat up Boesch. Cannady, Smith, and defendant drove from Battle Mountain, Nevada, to Reno, Nevada, so that Cannady and Smith could rent a car. Thereafter, defendant drove back to Battle Mountain. Cannady and Smith drove to Boesch’s home in Whitefish and attempted, unsuccessfully, to gain entry.

The next day, Cannady and Smith returned disguised as Easter bunnies bearing candy and baskets. Boesch opened the door and was attacked by the pair who used their fists, a hammer, and a padlock tied to a bandanna. The children were locked in a bedroom while Boesch was left tied up in another bedroom. Approximately two hours later, Cannady telephoned an ambulance for Boesch. Cannady and Smith pled guilty to the offense of aggravated assault for their part in beating Boesch.

Defendant was charged with accountability for aggravated kidnapping. While in chambers, defendant objected to the State’s attempt to introduce into evidence color photographs of Boesch’s injuries. The court allowed the photographs. Following the State’s case-in-chief, defendant moved to dismiss due to lack of corroborative evidence to support the testimony of Smith and Cannady. The court denied the motion. Over defendant’s objection, the State cross-examined defense witness Crosthwaite as to his prior criminal history. Defendant moved for a mistrial; the court denied the motion.

A jury found defendant guilty of accountability for aggravated kidnapping, and the court sentenced her to 30 years in the Women’s Correctional Facility, designating her a dangerous offender for the purposes of parole eligibility.

Defendant appeals.

ISSUE 1

Did the District Court err in permitting the State to inquire into the criminal history of defendant’s witness?

Our standard of review relating to rulings on the admissibility of evidence is whether the trial court abused its discretion in allowing the evidence. State v. Wing (1994), 264 Mont. 215, 870 P.2d 1368; State v. Stewart (1992), 253 Mont. 475, 833 P.2d 1085; Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

Defendant was charged with aggravated kidnapping by accountability pursuant to §§ 45-2-302 and 45-5-303, MCA. In order to convict defendant under § 45-2-302, MCA, the State had the burden of proving that she promoted or facilitated the aggravated kidnapping of Boesch by soliciting, aiding, or abetting Cannady and Smith. To that end, the State relied heavily on the testimony of Cannady and Smith. In response, the defense relied heavily on the testimony of Crosthwaite to rebut the testimony of Cannady and Smith.

Prior to being questioned about his criminal past, Crosthwaite gave substantial testimony in defendant’s behalf. Crosthwaite testified that he never heard defendant wish that Boesch would be crippled or paralyzed. He testified that he had nothing to do with the beating, and that he also believed defendant had nothing to do with the beating. Crosthwaite testified that he never gave Cannady money to beat Boesch. He testified as to Cannady’s reputation in the community for violence and dishonesty. Crosthwaite denied furnishing Cannady and Smith with the money to rent a car and to finance their trip to Montana. Crosthwaite testified that it was contrary to defendant’s character to hire someone to beat Boesch so that she could regain custody of the children.

The State concluded its cross-examination of Crosthwaite with the following:

BY MR. ESCH (for the State):
Q: Mr. Cannady ever blow up somebody’s pickup truck?
A: No, sir.
Q: Do you know somebody who has?
A: Yes, sir.
MR. CHRISTENSEN (for defendant): Objection, Your honor. That is not relevant.
THE COURT: Overruled.
BY MR. ESCH:
Q: Do you know somebody who has?
A: Yes, sir.
Q: Who?
MR. CHRISTENSEN: Objection, Your Honor. Continuing objection. It is not relevant.
THE COURT: Okay. Overruled.
BY MR. ESCH:
Q: Tell the jury who blew up somebody’s pickup truck in 1986?
A: I did, sir.
Q: For revenge?
A: No, sir.
Q: Why did you do it?
A: It was accidental.
Q: You were convicted of blowing up somebody’s pickup truck?
A: Yes, sir.
BY MR. ESCH: I don’t have any other questions.

Defendant argues that by allowing testimony about Crosthwaite’s criminal past, the court deprived her of a fair trial.

Evidence of Crosthwaite’s criminal history was offered to impeach his credibility as a defense witness. That evidence should have been excluded pursuant to Rule 609, M.R.Evid., which provides that “[f]or the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime is not admissible.” The rationale behind Montana’s statutory prohibition against inquiry into criminal history for impeachment purposes is that impeachment by evidence of conviction of a crime has low probative value in relation to credibility. Sloan v. State (1989), 236 Mont. 100, 104, 768 P.2d 1365, 1367. This rule also avoids the highly prejudicial effect on a jury that is inherent in this type of evidence. Sloan, 768 P.2d at 1367. There is a strong possibility that a jury, hearing that a witness is a convicted criminal, will immediately discredit the testimony of that witness. Sloan, 768 P.2d at 1368.

However, the prohibition of Rule 609 must be weighed against the prohibition of § 46-20-701, MCA, which provides:

(1) [N]o cause shall be reversed by reason of any error committed by the trial court against the appellant unless the record shows that the error was prejudicial.
(2) Any error, defect, inequity, or variance which does not affect substantial rights shall be disregarded.

The test this Court has adopted in determining whether the prejudicial error requires a reversal is whether there is a reasonable possibility that the inadmissible evidence might have contributed to the conviction. State v. Bower (1992), 254 Mont. 1, 6, 833 P.2d 1106, 1109; Brodniak v. State (1989), 239 Mont. 110, 114, 779 P.2d 71, 73; State v. Brush (1987), 228 Mont. 247, 252, 741 P.2d 1333, 1336. When assessing the prejudicial effect of an error, we examine the totality of the circumstances in which the error occurred. Brodniak, 779 P.2d at 74.

The State argues that the introduction of such evidence was harmless error that neither prejudiced defendant nor contributed to her conviction. We disagree. There is a strong possibility that the jury dismissed Crosthwaite’s testimony upon learning of his criminal conviction, despite the low probative value of that information in relation to his credibility. Given the importance of Crosthwaite’s testimony to the defense, there is a reasonable possibility that the inherently prejudicial and inadmissible evidence of his criminal history might have contributed to defendant’s conviction.

The record fails to disclose any appropriate reason for the State’s inquiry as to the prior criminal conduct of Crosthwaite. We conclude that the prosecution’s inquiry was improper under Rule 609, M.R.Evid., and prejudicial under § 46-20-701, MCA.

We hold that the District Court abused its discretion in permitting the State to inquire into the criminal history of defendant’s witness.

ISSUE 2

Did the District Court err in admitting into evidence and permitting the jury to view color photographs of the victim’s injuries?

As with Issue 1, our standard of review on the admissibility of evidence is whether the trial court abused its discretion. Wing, 870 P.2d at 1372; Stewart, 833 P.2d at 1087; Steer, 803 P.2d at 603.

The State submitted, and the court admitted into evidence, four enlarged color photographs showing the severe injuries to Boesch’s face, legs, and back. Defendant argues that the photographs were offered to arouse the sympathy of the jury, rather than to show any material facts. As a result, defendant argues, the photographs should have been excluded.

Photographs are admissible if they are relevant to describe a person, place, or thing in the case. State v. Johnson (1986), 221 Mont. 503, 515, 719 P.2d 1248, 1256; Fulton v. Chouteau County Farmers’ Co. (1934), 98 Mont. 48, 54, 37 P.2d 1025, 1028. However, otherwise relevant photographs are not admissible if their probative value is outweighed by prejudice to the defendant. Rule 403, M.R.Evid.; State v. Mayes (1992), 251 Mont. 358, 371, 825 P.2d 1196, 1205; State v. Henry (1990), 241 Mont. 524, 531, 788 P.2d 316, 320. The balancing of probative value against unfair prejudice is a matter within the discretion of the trial court, and a ruling on the admissibility of photographs will not be disturbed on appeal absent abuse of discretion. Mayes, 825 P.2d at 1205; State v. Devlin (1991), 251 Mont. 278, 283, 825 P.2d 185, 188; State v. Austad (1982), 197 Mont. 70, 83, 641 P.2d 1373, 1380.

Defendant was charged with accountability for aggravated kidnapping. While the State had the burden of proving that the victim suffered bodily injury under § 45-5-303(l)(c), MCA, the record shows that bodily injury was not in dispute. Cannady and Smith, as witnesses for the State, testified as to the bodily injury they had inflicted on Boesch. Both testified that they had been convicted of aggravated assault as a result of the bodily injury they inflicted on the victim. Boesch testified for the State as to the nature and extent of his injuries.

What was in dispute was whether, pursuant to § 45-2-302, MCA, defendant promoted or facilitated the commission of the aggravated kidnapping by soliciting, aiding, or abetting Cannady and Smith. Because bodily injury was not in dispute, the photographs were of little or no probative value in establishing accountability for aggravated kidnapping. In the absence of probative value, the photographs were irrelevant to the State’s case, and therefore, could only serve to inflame the jury against the defendant. We conclude that the probative value of the photographs was far outweighed by their prejudicial effect on the jury to the detriment of defendant.

We hold that the District Court erred in admitting into evidence, and permitting the jury to view, color photographs of the victim’s injuries.

ISSUE 3

Was there sufficient corroboration of the accomplices’ testimony? Because we have found reversible error on the evidence concerning inquiry into the criminal past of a defense witness and the admissibility of photographs, we decline to discuss further evidence of sufficient corroboration.

We reverse and remand for a new trial.

JUSTICES GRAY, TRIEWEILER, NELSON and WEBER concur.


text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY, a Maryland corporation, Plaintiff and Appellant, v. THOMAS E. RODGERS, d/b/a THE CLANSMAN, Defendant and Respondent.
    No. 94-186.
    Submitted on Briefs August 11, 1994.
    Decided October 20, 1994.
    51 St.Rep. 1023.
    267 Mont. 178.
    882 P.2d 1037.

      For Appellant: Barry G. O’Connell, Moore, O’Connell & Refling, Bozeman.
    For Respondent: Matthew W. Knierim, Christoffersen & Knierim, Glasgow; Robert Hurly, Glasgow; and Donald W. Molloy, Molloy Law Offices, Billings.
   JUSTICE HUNT,

delivered the Opinion of the Court.

The Seventeenth Judicial District Court, Valley County, granted plaintiff United States Fidelity and Guaranty Company’s (USF&G) motion for voluntary dismissal and awarded defendant attorney fees and costs. USF&G appeals from that portion of the District Court’s memorandum opinion and order which awards fees and costs to defendant. We reverse.

We frame the issues on appeal as follows:

1. Did the amount of discovery conducted by Rodgers preclude USF&G from filing a notice to dismiss under 41(a)(l)(i), M.R.Civ.R?

2. Did the District Court abuse its discretion by conditioning USF&G’s voluntary dismissal upon its paying of defendant’s attorney fees and costs?

Thomas E. Rodgers owned the Clansman Bar in Glasgow, Montana. On October 28,1992, fire completely destroyed the bar. Preliminary investigation indicated that the fire was caused by arson. Rodgers submitted a claim for insurance benefits under a fire insurance policy issued by USF&G. On February 18,1993, USF&G filed a declaratory judgment action against Rodgers doing business as the Clansman, seeking judicial determination of its rights and responsibilities under the insurance policy.

On March 23, 1993, Rodgers filed a motion requesting that the District Court grant him additional time in which to serve and file his answer. Rodgers stated that depositions were scheduled for April 15, 1993, and that the information which he expected to obtain from the depositions was necessary to file a meaningful and responsive answer. USF&G did not object to the motion, and the District Court ordered that Rodgers “may delay filing of its responsive pleading to Plaintiff’s Complaint until twenty (20) days after the completion of the taking of depositions.”

On June 24, 1993, USF&G filed a notice of voluntary dismissal pursuant to 41(a)(1)(i), M.R.Civ.P. Prior to USF&G’s notice of dismissal on June 23, Rodgers did not file an answer or a summary judgment motion. Rodgers resisted the notice of dismissal. Two days later, USF&G filed a complaint for declaratory judgment in the United States District Court for the District of Montana, Billings Division. Except for the allegations of proper jurisdiction and venue contained in paragraphs III and IV, the complaint filed in federal court is virtually identical to the complaint filed in the Montana District Court.

Rodgers moved the District Court to review the voluntary dismissal filed by USF&G. In a memorandum opinion and order dated December 21, 1993, the District Court concluded that USF&G “has the right under Rule 41(a)(2) to dismiss, however this right is subject to the exercise of discretion by this court to protect the Defendant from the cost of having to prepare multiple cases in differing forums.” The District Court ordered that a hearing be held later to determine Rodgers’ costs and attorney fees. The hearing to determine fees and costs was held on March 9, 1994, after which the District Court ordered USF&G to pay Rodgers’ attorney fees of $19,713.75 and costs of $1314.85. USF&G appeals the conditional dismissal and award of fees and costs.

We review conclusions of law to determine whether the district court’s interpretation of the law was correct. In re Marriage of Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 618; Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

The issues raised on appeal require this Court to interpret the provisions of 41(a), M.R.Civ.P., which provides:

Voluntary dismissal — effect thereof. (1) By plaintiff— by stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the state of Montana, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, which ever [sic] first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice.
(2) By order of court. Except as provided in paragraph (1) of this subdivision of this rule, an action shall not be dismissed at the plaintiff’s instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.

Rules 41(a) and 41(d) of the Montana Rules of Civil Procedure are identical in all respects to Rules 41(a) and 41(d) of the Federal Rules of Civil Procedure. Because the language of the state and federal rules is identical, the interpretation of the federal rules have persuasive application to the interpretation of the state rules. Petritz v. Albertsons, Inc. (1980), 187 Mont. 102, 608 P.2d 1089.

ISSUE 1

Did the amount of discovery conducted by Rodgers preclude USF&G from filing a notice to dismiss under 41(a)(1)(i), M.R.Civ.P.?

Because USF&G filed its notice of voluntary dismissal under subsection (l)(i) of 41(a), M.R.Civ.P., the threshold question is whether the notice was filed “before service by the adverse party of an answer or of a motion for summary judgment....” Rule 41(a)(l)(i), M.R.Civ.P. An examination of the record reveals that neither an answer nor a motion for summary judgment was filed by Rodgers before USF&G filed its notice of dismissal.

Rodgers contends on appeal that, because he obtained “special permission and a court order” allowing him to submit an answer 20 days after the completion of necessary depositions, it “was within his right not to have filed an answer” because he had not completed deposing necessary persons. He states that this is not “a case where nothing had occurred prior to the voluntary dismissal under Rule 41(a).” By the time USF&G filed its notice of dismissal, Rodgers asserts that “[t]he case had progressed so far that filing a written pleading denying the allegations of the complaint was a mere formality.”

The Sixth Circuit Court of Appeals rejected an argument substantially similar to Rodgers’in D.C. Electronics, Inc. v. Nartron Corp. (6th Cir. 1975), 511 F.2d 294. Defendant Nartron argued that,

since the purpose of Rule 41(a)(l)(i) “is to facilitate the voluntary dismissal of an action, but safeguard abuse of the right by limiting its application to an early stage of the proceedings,” courts are vested with the discretion to determine whether a particular case has progressed to a point at which voluntary dismissal is no longer proper, even though an answer or motion for summary judgment has yet to be filed.

D.C. Electronics, Inc., 511 F.2d at 296 (citation omitted). In rejecting Nartron’s argument, the court held that

[t]he drafters of Rule 41(a)(l)(i) ... did not attempt to effectuate their purpose by phrasing the rule in vague terms or, as in Rules 41(a)(l)(ii) and 41(a)(2), by calling for judicial involvement or the exercise of judicial discretion.

D.C. Electronics, Inc., 511 F.2d at 297. Rule 41(a)(1)(i), therefore, does not limit the filing of a notice to dismiss to a general period of time at an early stage of the proceedings; instead, the rule specifically permits the filing of a notice to dismiss “at any time before service by the adverse party of an answer or of a motion for summary judgment, which ever [sic] first occurs.” Rule 41(a)(1)(i), M.R.Civ.P.

The Seventh Circuit Court of Appeals also rejected an argument similar to Rodgers’ in Merit Ins. Co. v. Leatherby Ins. Co. (7th Cir. 1978), 581 F.2d 137. Defendant Leatherby contended that

dismissal by notice should not be allowed where it would lead to prejudice. It argue[d] that the drafters of the rule [41(a)(1)(i), Fed.R.Civ.P.,] were concerned with limiting the plaintiff’s right to prevent the waste of resources so that once the parties have committed substantial resources to preparation of their case voluntary dismissal would no longer be allowed. Leatherby claim [ed] that it ha[d] incurred substantial legal costs and expenses in litigation.

Merit Ins. Co., 581 F.2d at 140. The court in Merit Ins. Co. stated “that ‘Rule 41 (a)(1)(i) is clear and unambiguous on its face and admits of no exceptions that call for the exercise of judicial discretion by any court.’ ” Merit Ins. Co., 581 F.2d at 141 (emphasis added) (citing D.C. Electronics, Inc., 511 F.2d at 298). Although Leatherby claimed that it had “expended great time and effort,” the court held that “ [t]he mere institution of and work on discovery . . . will not justify preclusion of a Rule 41(a)(1) notice.” Merit Ins. Co., 581 F.2d at 143; see Sheldon v. Amperex Electronic Corp. (E.D.N.Y. 1971), 52 F.R.D. 1, 7, aff’d, 449 F.2d 146 (2nd Cir. 1971); Scam Instruments Corp. v. Control Data Corp. (7th Cir. 1972), 458 F.2d 885, 886; Pilot Freight Carriers, Inc. v. Int’l Bhd. of Teamsters (5th Cir. 1975), 506 F.2d 914, 916, cert. denied, 422 U.S. 1048, 95 S. Ct. 2665, 45 L. Ed. 2d 700 (1975); see also Plains Growers, Inc. v. Ickes-Braun Glasshouses, Inc. (5th Cir. 1973), 474 F.2d 250, 253. In both Sheldon and Scam Instruments Corp., the courts refused to set aside the plaintiffs’ notices of dismissal under 41(a)(l)(i), Fed.R.Civ.P., even though extensive discovery had been conducted for more than a year in the former and approximately one year in the latter. Sheldon, 52 F.R.D. at 6; Scam Instruments Corp., 458 F.2d at 886.

We conclude that, while in the instant case the defendant may have engaged in substantial discovery, such progress did not amount to and cannot take the place of a formal answer or motion for summary judgment pursuant to 41(a)(l)(i), M.R.Civ.P. USF&G, therefore, properly filed its notice of dismissal under 41(a)(l)(i), M.R.Civ.P.

ISSUE 2

Did the District Court abuse its discretion by conditioning USF&G’s voluntary dismissal upon its paying of defendant’s attorney fees and costs?

Rule 41, M.R.Civ.P., like its federal counterpart, “provides three distinct and separate methods whereby an action may be voluntarily dismissed.”D.C. Electronics, Inc., 511 F.2d at 296. Subsection (a)(1)(i) provides for dismissal upon the unilateral filing of a notice of dismissal by the plaintiff; subsection (a)(1)(h) provides for dismissal by filing a stipulation in which all parties have agreed to dismiss; and subsection (a)(2) provides for dismissal by express order of the court. D.C. Electronics, Inc., 511 F.2d at 296.

By its express language, 41(a)(2), M.R.Civ.P, gives the district court discretion to dismiss an action upon the plaintiff’s motion and “upon such terms and conditions as the court deems proper.” Rule 41(a)(2), M.R.Civ.P. Under 41(a)(1)(i), M.R.Civ.P., however, a voluntary dismissal by a plaintiff automatically terminates the action upon the filing of the notice of dismissal with the clerk of court. Miller v. Reddin (9th Cir. 1970), 422 F.2d 1264, 1266 (construing 41(a)(1)(i), Fed.R.Civ.P); accord Scam Instruments Corp., 458 F.2d at 888; Hyde Const. Co. v. Koehring Co. 4(10th Cir. 1968), 388 F.2d 501, 507, cert. denied, 391 U.S. 905, 88 S. Ct. 1654, 20 L. Ed. 2d 419 (1968). Under 41(a)(1)(i), M.R.Civ.P., no court order is required. Miller, 422 F.2d at 1266. As the Fifth Circuit Court of Appeals stated, the proper filing of a notice of dismissal

closes the file. There is nothing the defendant can do to fan the ashes of that action into life and the court has no role to play. This is a matter of right running to the plaintiff and may not be extinguished or circumscribed by adversary or court. There is not even a perfunctory order of court closing the file. Its alpha and omega was the doing of the plaintiff alone. He suffers no impairment beyond his fee for filing.

American Cyanamid Co. v. McGhee (5th Cir. 1963), 317 F.2d 295, 297.

Moreover, 41(a)(1), M.R.Civ.P., provides “no authority for the district court imposing conditions upon a motion clearly intended to proceed under 41(a)(1)(i).” Scam Instruments Corp., 458 F.2d at 889; 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 2366, at 176 (1971). We conclude that the District Court abused its discretion by conditioning USF&G’s voluntary dismissal upon its payment of Rodgers’ fees and costs.

In its December 21,1993, memorandum opinion, the District Court cited Petritz for the proposition that the “court is vested with ‘wide discretion’ to impose conditions, including an award of attorney fees and costs, which will attach to a voluntary dismissal under Rule 41.” This Court’s decision in Petritz, 608 P.2d 1089, however, dealt exclusively with the application of Rule 41(a)(2). The District Court in the instant case concluded that

[i]n interpreting the similar federal rule, the federal courts have held that a trial court continues to have jurisdiction to decide issues concerning Rule 11, sanctions, and other remedial orders concerning discovery practices even after the filing of a voluntary dismissal under Rule 41(a)(2).

(Emphasis added.) Because USF&G filed its notice of dismissal pursuant to 41(a)(1)(i), M.R.Civ.P., the District Court’s reliance on authority construing Rule 41(a)(2) is misplaced.

Finally, the District Court ordered that a hearing be held to determine “the amount of attorney fees and costs to be awarded Defendant pursuant to Rule 41(d).” Rule 41(d), M.R.Civ.P., provides:

If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.

Again, the District Court’s application of this rule in this case is erroneous. Rule 41(d), M.R.Civ.P., clearly vests the power to award costs with the court in which the subsequent action is commenced. While Rodgers may be entitled to relief under 41(d), M.R.Civ.P., or 41(d), Fed.R.Civ.P., such relief must be sought from the federal district court in which USF&G commenced the subsequent action.

Reversed.

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


author: JUSTICE NELSON

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. JOHN JACOB LORENZ, Defendant and Appellant.
    No. 94-286.
    Submitted on Briefs October 13, 1994.
    Decided October 20, 1994.
    51 St.Rep. 1027.
    267 Mont. 186.
    883 P.2d 98.

      For Appellant: William Hooks, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Cregg Coughlin, Assistant Attorney General, Helena; and Gary Ryder, Deputy Richland County Attorney, Sidney.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from the entry of the statement of reasons of the Seventh Judicial District Court supporting its prior designation of John J. Lorenz (Lorenz) as a dangerous offender for purposes of parole eligibility. We reverse and remand.

The sole issue on appeal is whether the District Court erred in interpreting § 46-18-404(1), MCA, to require, as a matter of law, that Lorenz be designated as a dangerous offender.

Lorenz, along with a codefendant, was tried and found guilty by a Richland County juiy of various felony sex offenses. On appeal of his sentence, we reversed the designation of Lorenz as a dangerous offender and remanded the case to the District Court “for additional findings articulating its reasons for a dangerous or nondangerous designation.” State v. Wing and Lorenz (1994), 264 Mont. 215, 870 P.2d 1368.

The court did not hold an additional hearing, but, instead, entered a “Statement of Reasons for Court’s Designation.” The court stated that its “sole reason” for designating Lorenz as a dangerous offender was its interpretation of § 46-18-404, MCA, as requiring such a designation.

Section 46-18-404(1), MCA, provides, in pertinent part:

(Tlhe sentencing court shall designate an offender a nondangerous offender for purposes of eligibility for parole under part 2 of chapter 23 if:
(a) during the 5 years preceding the commission of the offense for which the offender is being sentenced, the offender was neither convicted of nor incarcerated for an offense committed in this state or any other jurisdiction for which a sentence to a term of imprisonment in excess of 1 year could have been imposed; and
(b) the court has determined, based on any presentence report and the evidence presented at the trial and the sentencing hearing, that the offender does not represent a substantial danger to other persons or society.

The District Court interpreted this statute as requiring a dangerous designation unless the defendant can satisfy the conditions of both (a) and (b) — i.e. that he not have been convicted of nor incarcerated for any felony within the preceding five years and that he does not represent a danger to other persons or society. Since the court found that Lorenz had two prior felony convictions within the last five years, it concluded that he must be designated a dangerous offender as a matter of law. The court did not make any finding concerning whether Lorenz represented a substantial danger to other persons or society.

We review the District Court’s conclusions of law to determine whether its interpretation of the law was correct. State v. Christensen (1994), [265 Mont. 374], 877 P.2d 468. Here, we hold that the District Court incorrectly interpreted § 46-18-404(1), MCA.

Lorenz argues, and the State concedes, that our decision in State v. Dahl (1980), 190 Mont. 207, 620 P.2d 361, is dispositive of the issue raised in the instant appeal. In that case the defendant had a prior felony within five years of the offense involved in the appeal. The district court, concluding that it was required to do so under the statute, designated Dahl as a dangerous offender at sentencing. Dahl, 620 P.2d at 364-65. We determined that the district court erred and that, while not a model of clarity, the statute is “mandatory only where the circumstances require the sentencing court to sentence one as a non-dangerous offender.” Dahl, 620 P.2d at 365. We concluded that § 46-18-404(1), MCA, “does not require the judge to designate one as dangerous; rather, it sets forth the circumstances under which the defendant must be designated as nondangerous.” Dahl, 620 P.2d at 365.

Under the statute, as interpreted in Dahl, if the defendant satisfies both subsections (a) and (b) of § 46-18-404(1), MCA, then he must be designated as a nondangerous offender for parole eligibility purposes. On the other hand, if the defendant satisfies the prerequisites of only one of the subsections of § 46-18-404(1) then the court may, in its discretion, designate the defendant either dangerous or nondangerous. State v. Miller (1988), 231 Mont. 497, 517, 757 P.2d 1275, 1287.

Here, the court erroneously concluded that it had no discretion and that it was required to designate Lorenz a dangerous offender as a matter of law. Accordingly, no inquiry was made nor were any findings entered or reasons articulated as to whether Lorenz represents a substantial danger to other persons or society. Where the court refuses to exercise its discretion because it erroneously concludes that, as a matter of law, it has none, reversal and remand are required.

The District Court’s designation of Lorenz as a dangerous offender is, accordingly, reversed, and this case is remanded with instructions that the court hold a hearing on whether Lorenz represents a substantial danger to other persons or society under § 46-18-404(1)(b), MCA. In addition to any presentence report and the evidence at trial and sentencing hearing, the court shall consider, along with the arguments of counsel, such additional admissible evidence as the defendant and the State may wish to offer. Thereafter the court shall enter its finding designating Lorenz either dangerous or nondangerous for parole eligibility purposes and shall articulate its reasons for such designation. See, § 46-18-404(3), MCA; State v. Buckman (1989), 236 Mont. 37, 40, 768 P.2d 1361, 1363; and State v. Belmarez (1991), 248 Mont. 378, 381-82, 812 P.2d 341, 343-44.

REVERSED and REMANDED for further proceedings consistent with this opinion.

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