author: JUSTICE ERDMANN

text:
    AMERIMONT, INC., A MONTANA CORPORATION, CALVIN SMITH and ALICE K. SMITH, Plaintiffs and Appellants, v. DAVID E. GANNETT and MONTANA LAND RELIANCE, Defendants and Respondents.
    No. 96-034.
    Submitted on Briefs July 18, 1996.
    Decided September 30, 1996.
    53 St.Rep. 929.
    278 Mont. 314.
    924 P.2d 1326.

      For Appellants: Karl Knuchel, Attorney at Law, Livingston.
    For Respondents: James J. Masar, Knight & Masar, Missoula.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

Amerimont, Inc., a Montana corporation, and Calvin Smith and Alice K. Smith appeal from the judgment entered by the Eighteenth Judicial District Court, Gallatin County, decreeing that Amerimont does not have a prescriptive easement over the property of David E. Gannett and the Montana Land Reliance, a non-profit corporation, which holds a conservation easement on Gannett’s property. We affirm.

The issue on appeal is whether the District Court erred in concluding that Amerimont does not possess a prescriptive easement over Gannett’s property.

FACTS

Amerimont purchased property located in Gallatin County from the Smiths in 1993. The property lies near the town of Manhattan and the legal description of the land is the StsSEi4 of Section 26 and the NEV4 of Section 35 and all of Section 25, all situated in Township 2 North, Range 3 East.

Amerimont’s chain of title dates back to 1887 when George Oyler obtained title to the property by homesteading a portion of the ground and purchasing different sections from private individuals. In 1924 George Oyler conveyed title to Robert Oyler, and in 1949 Robert Oyler sold the property to Hugh Smith, Calvin Smith’s father. In 1975 Hugh Smith deeded one-half interest in the property to Calvin Smith, and when Hugh Smith died in 1990, Calvin Smith inherited the remaining one-half of the property. In July 1993, the Smiths transferred their interest to Amerimont by conveying fee title to Section 25 and executing a contract for deed on the respective portions of Sections 26 and 35.

In 1992 Gannett acquired title to the SEVi of Section 36 in Township 2 North, Range 3 East, Gallatin County. Gannett’s chain of title dates back to Annie and Enoch Sales who homesteaded the property in 1922. The Saleses conveyed the property to C. W. Zelie in 1928, and in 1930 Gallatin County foreclosed on the property after Zelie failed to pay taxes. Enoch Sales repurchased the property from Gallatin County in 1939 and then sold the land to Elwyn Freeman in 1964. Freeman sold the property to Philip Ver Wolf in 1979, and Ver Wolf conveyed his interest by warranty deed to Keith Fairbank in 1987. Fairbank executed a warranty deed to Gannett in 1992, who later that year conveyed a conservation easement on the entire property to the Montana Land Reliance.

The properties are separated by a tract of land in Section 36, which is owned by the State of Montana. Amerimont and its predecessors in interest accessed the south one-half of Section 25 by crossing Gannett’s property on a two-track dirt road. The road is approximately the width of a pickup truck and traverses a heavily grassed area. The roadway was not the only access to the Smiths’ property and they and their predecessors periodically used the road to access the homestead on their land and to gain access to the property for agricultural and recreational purposes. A map of the properties and the disputed roadway is shown below.

In 1994, Amerimont and the Smiths, filed suit against Gannett seeking to establish that they had a prescriptive easement across Gannett’s property. The case was tried before the District Court without a jury on January 19 and 20, 1995. On December 14, 1995, the District Court entered its findings of fact, conclusions of law, and order, concluding that Amerimont and the Smiths do not have a prescriptive easement over Gannett’s property. On January 2, 1996, the District Court entered judgment in favor of Gannett and the Montana Land Reliance, incorporating its earlier findings of fact and conclusions of law. This appeal followed.

STANDARD OF REVIEW

This Court reviews a district court's findings of fact to determine whether they are clearly erroneous. Dames v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. We have adopted a three-part test to determine whether the findings are clearly erroneous. First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence, we will determine if the trial court has misapprehended the effect of the evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still find that a finding is clearly erroneous when, although there is evidence to support it, a review of the record leaves the Court with the definite and firm conviction that a mistake has been committed. Interstate Prod. Credit Ass'n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

We review a district court's conclusions of law to determine whether the court's interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

DISCUSSION

Did the District Court err in concluding that Ainerimont does not possess a prescriptive easement over Gannett's property?

To establish an easement by prescription, the party claiming the easement must show open, notorious, exclusive, adverse, continuous, and uninterrupted use of the easement claimed for the full statutory period of five years. Tanner v. Dream Island, Inc. (1996), 275 Mont. 414, 424, 913 P.2d 641, 647-48 (citing Public Lands Access v. Boone & Crockett (1993), 259 Mont. 279, 283, 856 P.2d 525, 527; Keebler v. Harding (1991), 247 Mont. 518, 521, 807 P.2d 1354, 1356). The burden is on the party seeking to establish the prescriptive easement and all elements must be proved. Tanner, 913 P.2d at 648 (citing Public Lands Access, 856 P.2d at 527; Downing v. Grover (1989), 237 Mont. 172, 175, 772 P.2d 850, 852).

If the owner shows permissive use, no easement can be acquired since the theory of prescriptive easement is based on adverse use. Tanner, 913 P.2d at 648 (citing Public Lands Access, 856 P.2d at 527; Rathbun v. Robson (1983), 203 Mont. 319, 322, 661 P.2d 850, 852). Where the use of a way by a neighbor is by express or implied permission of the owner, continuous use of the way by the neighbor is not adverse and does not ripen into a prescriptive right. Public Lands Access, 856 P.2d at 528 (citing Wilson v. Chestnut (1974), 164 Mont. 484, 491, 525 P.2d 24, 27).

Amerimont argues that use of the roadway by the Oylers was sufficient to establish a prescriptive easement and that use by the Smiths was open and notorious to a degree that Gannett should have been placed on notice that the Smiths and their predecessors were making a hostile claim against his ownership. Amerimont claims that its and its predecessors’ use was continuous and uninterrupted for the full statutory time period. Amerimont maintains that the historic use of the roadway by the Smiths and the Oylers was under a claim of right and not by privilege or license.

Amerimont claims that it established the preliminary requirements of a prescriptive easement, thus creating a presumption of adverse use. According to Amerimont, the burden then shifted to Gannett to establish that the use was permissive or a neighborly accommodation and that Gannett did not bring forth any evidence to rebut the presumption of adverse use. Amerimont argues that the gates across the road were installed to control livestock and restrict public access and that the gates were never meant to keep Amerimont or its predecessors in interest from accessing their property.

Gannett argues that Amerimont and the Smiths failed to prove that their use of the road was open and notorious. Gannett relies on Greenwalt Family Trust v. Kehler (1994), 267 Mont. 508, 885 P.2d 421, to argue that Amerimont must have made a distinct and positive assertion of a right hostile to the owner. Gannett argues that without bringing such an assertion to the owner’s attention, neither he nor his predecessors in interest were placed on notice that use of the roadway was hostile. Gannett claims that he cannot now be forced to give up what is rightfully his without ever having had the opportunity to know that his title was in jeopardy. Gannett also argues that Amerimont failed to prove uninterrupted use because Gannett and his predecessor, Fairbank, required Smith to ask for a key to open the gate when he needed to use the road. According to Gannett, such an arrangement indicates Smith’s assent to Gannett’s ownership and control of the roadway and that such a position is inconsistent with a claim for a prescriptive easement. Gannett maintains that Amerimont and its predecessors’ use of the road began as permissive and that the character of that use never changed. Gannett argues that the ranchers and farmers in the area had always been good friends with strong social ties and a commitment to helping one another. According to Gannett, the close working and social relationships among the landowners engendered a practice of neighborly accommodation with respect to the use of roads across one another’s property.

The District Court found as follows:

The court finds that the close working and social relationships among neighbors engendered a custom and practice of “neighborly accommodation” with respect to use of the road across the Gannett property. ...
The court finds ... that plaintiffs and their predecessors have crossed the Gannett property with express or implied permission at all times material to this action.
Cal Smith testified Gannett and his predecessors generally locked a gate at the beginning of the road at all times pertinent to this action. ... [T]he court finds that this widespread practice of giving out keys to friends and neighbors reflects the custom and practice of neighborly accommodation in the area ....
Defendant Gannett and Keith Fairbank did not give keys to the gate to the Smiths. They required Smiths to obtain permission to cross the Gannett property every time he wanted to visit his property. The practice of locking gates and restricting access to the Gannett property is evidence that plaintiffs’use of the road across the Gannett property has always been and continues to be permissive.
Even if Mr. Smith and his father, Hugh Smith, intended to establish a right to cross the Gannett property by prescription, the evidence before the court does not show that they placed Gannett or his predecessors on notice of such hostile or adverse claim.

George Oyler’s grandson, Enos Oyler, testified that he was acquainted with Gannett’s predecessors and that “everybody got permission” to use the property. Oyler stated that after the Saleses moved away, the new owners locked the gate and “you had to ask permission.”

Marguerite Fulker, a neighboring landowner, testified she had occasions when she had to go into the southeast quarter of Section 36 to hunt mushrooms with Elwyn Freeman and take sheep across the property. Fulker stated that neighbors in the area got along beautifully. She indicated that “[t]hey’d loan you anything they had ... and we did everything together.”

Cal Smith testified that he worked with the Saleses, the Freemans, and Philip Ver Wolf during haying season. The Smiths used the Freemans’ corrals when moving cattle. Smith and Ver Wolf checked on and worked each other’s cattle, and on at least one occasion, Ver Wolf helped move the Smiths’ cattle to another ranch in Harrison.

Cal Smith also testified in review of his earlier deposition concerning conversations he had with Sales, Freeman, and Ver Wolf:

Q: And then I apparently asked a question that starts with, ‘Yes,” and then I would like you to — having read your answer that begins at line 16, I would like to have you explain what you said in response to that question with respect to your conversations with Sales. What is Mr. Sales telling you there? Would you read that?
A: We asked a long time ago, we asked Sales about fit]. He said, ‘Ah, hell, there’s no problem. You people have been doing it for years.’ Like I said, that’s the way we get along.
Q: And I asked, “Okay. That[’s] back to [the] neighborly accommodation?” And your answer is—
A: I said, ‘Yes.”
Q: And do you recall we talked during that deposition about neighborly accommodation, do you not?
A: I recall.
Q: And again, we’re talking about the three predecessors in interest, Sales, Freeman, Ver Wolf, all said the same things to you?
A: Yeah, that’s the way to the property.
Q: ‘You don’t need to ask. Just go right on in there.”
A: That’s right, that’s the way you get there.
Q: To avoid you having to go through the whole answer, I’m going to have you begin reading at line 6. And the sentence that starts with, “We went when we — when you had to go or when you wanted to go — .” Would you read that and then complete the sentence?
A: ‘We went when you had to go or when you wanted to go, whether it be summer, winter or whatever. Nobody said boo, you can’t go. It was a gentlemen’s agreement, I’ll put it that way.”
Q: And then I said, ‘Well, more than gentlemen, could it be described as being a neighborly accommodation? It’s what one good neighbor would do to another?” And your answer is—
A: “I would hope so, or however you want to say it. It’s just that there was never any problem getting there.”

Cal Smith testified that he first remembered needing a key to open the gate when he was in high school. He stated that when Fairbank bought the place, “he did not give me a key.” Smith indicated that the first time he learned there was a problem was when Gannett locked the gate and told Smith “I’ll leave the key for you.” Smith said “[f]ine” and when Gannett failed to give him a key, Smith indicated “I went anyway.”

Fairbank testified that when he purchased the property “[w]e put our own lock on the gate ... fairly early on.” He indicated that, for the most part, he maintained a locked gate after that. Fairbank testified that no one told him that Calvin Smith had an absolute right to cross the property and indicated there were times when Smith would borrow a key.

Gannett testified as follows concerning his knowledge of the Smiths’ right to access the road across his property:

Q: And up to this point in time, as you’ve just testified, all the information that was made available to you indicated that the Smiths’ use of that quarter section was permissive?
A: Yes.
Q: Now, what inquiry did you make of Mr. Smith with respect to whether or not that was the case?
A: He mentioned — he, Cal, told me that ... “If we do sell in two different pieces of property — ”, he had always had permission to go across the Sales’ road quarter section and that’s the way he referred to the ground as the “Sales Road quarter section”—
Q: Now, I’d like to stop you there. You’ve used the word “permission”—
A: Yes.
Q: Is that—
A: That’s the exact word he used. “I have always had permission to go across that property.”
Q: Okay. Yesterday Mr. Smith testified that he told you that is was an “absolute right” that he had to go across that property. Do you recall him using the words “absolute right”?
A: No, he did not.
Q: Do you recall him using any words that would indicate a use that was other than permissive?
A: No.
Calvin Smith himself stated that:
It’s always been my understanding that the easement was there when we bought the property. That we didn’t have to tell anybody

Our review of the record indicates that the District Court’s findings are supported by substantial evidence. The court did not misapprehend the effect of the evidence, nor is this Court left with the definite and firm conviction that a mistake has been committed.

In ordering that Amerimont and the Smiths do not have a prescriptive easement over Gannett’s property, the District Court concluded that:

Plaintiffs have failed to carry their burden of showing that their use of the road across the Gannett property was open and notorious.
Plaintiffs have also failed to show that their use of the road was “uninterrupted” by the owners of the Gannett property.
Plaintiffs have also failed to establish that their use of the road was adverse.

The first element in establishing a prescriptive right is that the use be open and notorious. We have defined “open and notorious” as a distinct and positive assertion of a right hostile to the rights of the owner and brought to the attention of the owner. Lemont, 887 P.2d at 726-27 (citing Downing, 772 P.2d at 852). In the present case, neither the Smiths nor their predecessors in interest made a distinct and positive assertion to Gannett or his predecessors that a right hostile to the rights of the owner was being made. Amerimont’s assertion that the extensive use of the road by the Oylers and the Smiths should have put the owners of the servient ground on notice that the road was being used as a primary access to get to their property is simply insufficient to prove that their use was open and notorious.

The claimant must also prove that the use is continuous and uninterrupted. We have defined “continuous” use as that which is made often enough to constitute notice of the claim to the potential servient owner, and “uninterrupted use” as a use not interrupted by the act of the owner of the land or by voluntary abandonment by the party claiming the right. Lemont, 887 P.2d at 727 (citing Downing, 772 P.2d at 852). While in the present case use of the road may have been continuous, it was not uninterrupted. Gannett’s predecessors locked the gate at the beginning of the road and supplied keys to their neighbors, including the Smiths, as a matter of accommodation. However, when Fairbank bought Gannett’s property in 1987, Fair-bank changed the locks on the gate and did not provide the Smiths with a key. Rather, the Smiths had to ask for the key to open the gate when they needed to use the road. Calvin Smith admitted that he asked both Fairbank and Gannett for keys to the gate as necessary. Such an arrangement clearly interrupted any claim of right which the Smiths allege they had to use the road.

The final requirement in establishing a prescriptive easement is that the use be adverse. To be “adverse” the use must be exercised under a claim of right and not as a mere privilege or license revocable at the pleasure of the owner of the land; such claim must be known to and acquiesced in by the owners of the land. Lemont, 887 P.2d at 727. In most instances, adverse use will be proven (or not proven) from the same evidence by which the claimant establishes open, notorious, continuous, and uninterrupted use for the statutory period. Lemont, 887 P.2d at 727.

A use of a neighbor’s land based upon mere neighborly accommodation or courtesy is not adverse and cannot ripen into a prescriptive easement. Public Lands Access, 856 P.2d at 528. This Court has consistently reaffirmed this doctrine. See Greenwalt, 885 P.2d at 425; Lemont, 887 P.2d at 728. Furthermore, we have repeatedly held that a landowner should not be forced to give up title to property without notice of the alleged adverse claim and the opportunity to know that his title is in jeopardy. See Unruh v. Task (1995), 271 Mont. 246, 250, 896 P.2d 433, 436; Greenwalt, 885 P.2d at 424; Downing, 772 P.2d at 852.

Here, Amerimont and its predecessors had the privileged use of the roadway pursuant to the permission and neighborly accommodation extended by Gannett and his predecessors. Residents of the area routinely helped each other with farm and ranch work and the parties and their predecessors understood that this custom and practice included the ability to cross one another’s property without having to ask for permission each time, as long as the neighbors had business to attend to, did not abuse recreational privileges, and closed all gates after each passage. The roadway was used by the express or implied permission of the landowner and as a neighborly accommodation to surrounding landowners. Amerimont’s and its predecessors’ use of the road across the Gannett property was not adverse.

We therefore hold that the District Court correctly interpreted the law when it concluded that Amerimont and the Smiths do not possess a prescriptive easement over Gannett’s property.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE LEAPHART

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BRYAN KEITH ALLEN, Defendant and Appellant.
    No. 95-282.
    Submitted on Briefs August 29, 1996.
    Decided October 8, 1996.
    53 St.Rep. 935.
    278 Mont. 326.
    925 P.2d 470.

      For Appellant: Sherry Petrovich Staedler, Public Defender Project, Anaconda.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Micheál Wellenstein, Ass’t Attorney General, Helena; Edward G. Beaudette, County Attorney, Anaconda.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Bryan Keith Allen (Allen) appeals from the judgment and sentence of the Third Judicial District Court, Deer Lodge County, jury verdict convicting him of assault, aggravated burglary, and aggravated assault. We affirm.

We restate the following issues raised by Allen:

(1) Did the District Court abuse its discretion in permitting the State to amend its information after the State’s case-in-chief?
(2) Did the District Court err in denying Allen’s motion for a directed verdict?
(3) Did the District Court abuse its discretion by not admitting testimony of the victim’s character?
(4) Did the District Court increase Allen’s punishment because he exercised his constitutional right to a trial?

BACKGROUND

Allen and Sandra Evans (Evans) had been involved in a turbulent relationship for several years. One evening in April, 1994, Allen and Evans began arguing at a local tavern. After this argument, Allen went to Evans’ home and requested permission to enter. After Allen entered Evans’ home, they began arguing. The argument became violent and Allen started head butting Evans in the face and banging her head against the wall. Allen then twisted her neck and told her that he “ought to just beat her to death.” Allen proceeded to throw Evans into the bathtub and threatened to drown her. From this assault, Evans suffered a broken nose and numerous cuts and bumps on her face.

While Allen was beating Evans, Evans’ son, D.E., was awakened. D.E. telephoned his grandparents. After Evans was able to escape from the house, Allen approached D.E. and asked him where Evans had gone. Allen then put D.E. behind a door and began hitting D.E. with the door. When D.E.’s grandparents arrived at Evans’ home, Allen left. The police were contacted and eventually apprehended Allen.

In May of1994, the State of Montana charged Allen by information with assault (against D.E.) and aggravated assault (against Evans). In June of 1994, the State amended the information by adding the charges of aggravated burglary and attempted deliberate homicide (of Evans). In the information, the State alleged that Allen was guilty of aggravated burglary because he remained in Evans’ home and attacked both Evans and D.E. Allen pled not guilty and the trial was held in December of 1994.

At trial, after the close of the State’s case-in-chief, Allen moved for a directed verdict on the charges of aggravated burglary and attempted deliberate homicide. Allen contended that the State failed to prove that he committed the additional offense necessary to prove an aggravated burglary. In response to the motion, the State moved to amend the information and Allen objected. The District Court granted the motion to amend the information and denied Allen’s motion for a directed verdict. The jury found Allen guilty of aggravated burglary, aggravated assault (against Evans), and assault (against D.E.). Following the jury’s verdict, Allen brought this appeal requesting relief in the form of either a reversal, a new trial or a re-sentencing.

DISCUSSION

(1) Did the District Court abuse its discretion when it allowed the State to amend its information after its case-in-chief?

The standard of review for a district court’s decision to permit the State to amend an information is abuse of discretion. State v. Matson (1987), 227 Mont. 36, 42, 736 P.2d 971, 975. An information is a written accusation of criminal conduct prepared by a prosecutor in the name of the State. The information must reasonably apprise the accused of the charges against him, so that he may have the opportunity to prepare and present his defense. Matson, 736 P.2d at 975.

Allen was originally charged with aggravated assault (against Evans), and assault (against D.E.). Prior to trial, the State charged Allen by amended information with aggravated burglary, aggravated assault (against Evans), attempted deliberate homicide (of Evans), and assault (against D.E.). At trial, Allen made a motion for a directed verdict. Allen argued that in order to prove the aggravated burglary, the State had to prove that Allen committed all three elements of the charge: (1) remaining unlawfully in an occupied structure; (2) that he was there with the purpose to commit an offense therein; and (3) he inflicted bodily injury on another. See § 45-6-204, MCA. At the time Allen objected to the information, it stated that Allen was guilty of aggravated burglary because he remained in Evans’ home and assaulted both Evans and D.E. The information did not refer to a separate offense as grounds for an aggravated burglary charge.

In order to prove aggravated burglary, the State had to prove that “in the course of committing the offense ... he purposely, knowingly, or negligently inflicts or attempts to inflict bodily injury upon anyone.” Section 45-6-204(2)(b), MCA. Allen contends that, assuming the State proved that he assaulted Evans and D.E. as part of the burglary, the State failed to establish aggravated burglary by proving that he also inflicted bodily injury on another; that is, someone other than Evans or D.E. Even assuming, without so holding, that the charge of aggravated burglary requires proof of a separate charge of infliction of bodily injury upon an additional party, that argument was satisfied by both the amendment to the information and the proof adduced at trial.

At the beginning of Allen’s trial, the June 15, 1994, amended information stated:

On or about April 29, 1994, at approximately 02:30 a.m. in Opportunity, Anaconda, Montana, BRYAN KEITH ALLEN knowingly entered or remained unlawfully in the occupied structure at 17 1/2 Leslie St., Opportunity, [A]naconda, Montana, with the purpose to commit an offense therein and in the course of committing the offense therein purposely, knowingly or negligently inflicted bodily injury upon SANDEALEE EVANS andD.E., aminor, thereby committing the crime of AGGRAVATED BURGLARY, a felony, in violation of § 45-6-204(2)(b) MCA.

After its case-in-chief, the State again amended the above information. In its amendment, the State made the assault against Evans the basis for the aggravated assault and burglary, while the assault against D.E. was the additional charge forming the basis of the charge of aggravated burglary. Allen argues that these amendments to the information were changes of substance and not form in two respects. First, Allen maintains that the amended information changed the nature of the charge. Second, Allen argues that the amended information lowered the State’s burden of proof.

In support of these contentions, Allen cites to State v. Sor-Lokken (1991), 247 Mont. 343, 805 P.2d 1367. In Sor-Lokken, this Court held that an amendment is one of form and not substance when, “the same crimes are charged, the elements of the crimes remain the same, the required proof remains the same, and the defendant is informed of the charges against him.” Sor-Lokken, 805 P.2d at 1371 (citing Matson, 736 P.2d at 975). This requirement may be satisfied if the charges sufficiently express the language of the statute which defines the offense. Matson, 736 P.2d at 975 (citing State v. Hankins (1984), 209 Mont. 365, 372, 680 P.2d 958, 962).

In addition to the requirements set out in Sor-Lokken, § 46-11-205 MCA, also restricts the State’s ability to make substantive changes to an information. Specifically, § 46-11-205, MCA, states:

46-11-205. Amending information as to substance or form. (1) The court may allow an information to be amended in matters of substance at any time, but not less than 5 days before trial, provided that a motion is filed in a timely manner, states the nature of the proposed amendment, and is accompanied by an affidavit stating facts that show the existence of probable cause to support the charge as amended. A copy of the proposed amended information must be included with the motion to amend the information.
(2) If the court grants leave to amend the information, the defendant must be arraigned on the amended information without unreasonable delay and must be given a reasonable period of time to prepare for trial on the amended information.
(3) The court may permit an information to be amended as to form at any time before a verdict or finding is issued if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced.

The State’s amendment to Allen’s information did not relieve the State of the burden of proving any of the elements of aggravated burglary. Rather, it allowed the State to satisfy the aggravating element by reference to proof that was already offered in the context of the separate charge of assault on D.E. Applying both the test set forth in Sor-Lokken, and the above statute to the record in this case, we conclude that the State’s amendments to the information were changes in form and not substance. Although these changes were made after the State’s case-in-chief, Allen was charged with the same crime, the elements remained the same, the proof required remained the same, and Allen was fully informed of the charges against him. Allen was not prejudiced by these amendments. Because the changes to the information were merely of form and not substance, we affirm the District Court’s decision permitting the State to amend its information.

(2) Did the District Court err in denying Allen’s motion for a directed verdict?

A district court’s decision to grant or not to grant a directed verdict will not be disturbed absent an abuse of discretion. A decision to grant an acquittal is appropriate only where there is no evidence to support a guilty verdict. State v. Bromgard (1993), 261 Mont. 291, 293, 862 P.2d 1140, 1141; State v. Haskins (1992), 255 Mont. 202, 210, 841 P.2d 542, 547.

In the instant case, the District Court was justified in finding that there was enough evidence for the jury to consider the charges against Allen. Allen argued that the aggravated burglary statute requires both the purpose to commit an offense, and the infliction of bodily injury. See Section 45-6-204(2), MCA. Allen maintains that since the State was relying on his assault of both Evans and D.E. as the requisite offense for the simple burglary, it needed to prove infliction of bodily injury upon someone other than Evans or D.E. in order satisfy its burden of aggravated burglary. Section 45-6-204(2), MCA. In other words, Allen argues that since his assaults of Evans and D.E. were the basis for the burglary charge, they could not also support the aggravated burglary charge. Without ruling on the validity of Allen’s analysis of the requirements of aggravated burglary under these facts, we note that the record indicates that the State presented the jury with testimony from Evans, and D.E., both of whom explained that Allen remained in Evans’ home and assaulted D.E. after he assaulted Evans. From the record, it is clear that the jury was presented with sufficient evidence to find each of the elements of each crime. Therefore, we find that there was sufficient evidence to support a jury conviction and affirm the District Court’s decision not to grant Allen a directed verdict.

(3) Did the District Cotut abuse its discretion by not admitting testimony of the victim’s character?

The standard of review for evidentiary rulings is whether the district court abused its discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. The determination of whether evidence is relevant and admissible is left to the sound discretion of the trial judge and will not be overturned absent a showing of abuse of discretion. Gollehon, 864 P.2d at 1263. See also State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063, 1067; State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380.

Allen argues that the District Court erred when it sustained the State’s objection to his inquiry of Evans regarding a previous physical altercation between Allen and Evans. During his cross-examination of Evans, defense counsel inquired about an altercation between Allen and Evans in which Evans supposedly lied about Allen having injured her. In that 1991 incident, Evans maintained that Allen had twisted her arm and snapped it. Allen maintained that none of this was true. When defense counsel questioned Evans about this incident, the State objected, stating that defense counsel was going beyond the scope of direct examination. This objection was sustained. Furthermore, Allen did not contend that under Rule 608(b), M.R.Evid., he should be allowed to pursue this line of questioning. Rather, Allen presents an argument based on Rule 608(b), M.R.Evid., for the first time on appeal to this Court.

In order to have properly preserved this issue for appeal, Allen should have offered the testimony as character evidence under Rule 608(b), M.R.Evid., thereby affording the trial court an opportunity to evaluate the questions in the context of that Rule. This he did not do. He did not raise the issue of admissibility under Rule 608 with the District Court. Rather, he simply acquiesced in the court’s ruling that the questioning exceeded the scope of the direct. Because Allen failed to argue to the District Court that he should be allowed to question Evans as to credibility pursuant to. Rule 608, M.R.Evid., we can not now address the merits of that argument raised for the first time on appeal. Marsh v. Overland (1995), 274 Mont. 21, 29, 905 P.2d 1088, 1093; Buhr v. Flathead County (1994), 268 Mont. 223, 237, 886 P.2d 381, 389. Therefore, we hold that the District Court’s decision to restrict cross-examination which exceeded the scope of the direct examination was not an abuse of discretion.

(4) Did the District Court increase Allen’s punishment because he exercised his constitutional right to a trial?

District courts have broad discretion in sentencing defendants convicted of criminal offenses. State v. Smith (1996), [276 Mont. 434], 916 P.2d 773, 780 (citing State v. Lloyd (1984), 208 Mont. 195, 199, 676 P.2d 229, 231). This Court will generally review a criminal sentence only for legality — that is, to determine whether it is within the statutory parameters established by the legislature; where a sentence is within those parameters, we generally will affirm it. Smith, 916 P.2d at 780; See also State v. Almanza (1987), 229 Mont. 383, 386, 746 P.2d 1089,1091. However, there are exceptions to these general rules.

Punishing a person for exercising a constitutional right is a basic due process violation. State v. Baldwin (1981), 192 Mont. 521, 525, 629 P.2d 222, 225. Pointing to the disparity between the pre-trial plea offer and the ultimate sentence imposed, Allen contends that his sentence may have been in retaliation for rejecting the plea offer and going to trial. Relying on Baldwin, Allen maintains that the disparity between the sentence he received and the pre-trial plea offer was a result of the District Court’s punishing him for exercising his constitutionally protected right to a trial. As this Court explained in Baldwin, 629P.2dat225,“[a] policy of leniency following a plea is proper, but its converse, ‘extra’ severity following trial is not.” However, a mere disparity between the sentence offered during plea bargaining and that ultimately imposed is not, of itself, improper. Baldwin, 629 P.2d at 225; In re Lewallen (Calif. 1979), 590 P.2d 383, 386.

This case significantly differs from Baldwin where the sentencing court wrote defense counsel a letter which explained,

[u]pon a plea of guilty the minimum sentence that I would give Mr. Baldwin would be a 5 year sentence with all but 45 days suspended, said 45 days to be served in the State Prison at Deer Lodge, Powell County, Montana. ... I feel that this is as lenient as I can possibly be in the case, and that if he does not want to enter a plea on these conditions why should we prepare to go to trial on the merits of the case.

Baldwin, 629 P.2d at 224. Unlike Baldwin, where the district court participated in the plea bargaining process, Allen has presented no evidence that the District Court in this case was involved in pre-trial plea negotiations. Although there is a disparity between the sentence proposed by the State and the sentence Allen ultimately received, Allen has failed to show that this disparity is the result of the District Court’s punishing him for going to trial. Because Allen has failed to substantiate his claim that he was punished for exercising his right to a trial, we affirm the District Court’s sentence.

Accordingly, we affirm the District Court.

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


author: JUSTICE TRIEWEILER

text:
    IN RE MARRIAGE OF JAMES ALAN ABRAHAMSON, Petitioner and Respondent, and MICHELLE SHERRIE ABRAHAMSON, Respondent and Appellant.
    No. 96-091.
    Submitted on Briefs June 27, 1996.
    Decided October 8, 1996.
    53 St.Rep. 939.
    278 Mont. 336.
    924 P.2d 1334.

      For Appellant: James P. Reynolds, Reynolds, Motl and Sherwood, Helena.
    For Respondent: John L. Hollow, Attorney at Law, Helena.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The respondent, James Abrahamson, filed a motion in the District Court of the First Judicial District in Lewis and Clark County, pursuant to § 40-4-219(l)(f), MCA, to modify primary residential custody of the parties’ child, Jordin. The District Court granted James’ motion. The appellant, Michelle Abrahamson, appeals the District Court’s judgment. We affirm the order and judgment of the District Court.

The issue on appeal is whether the District Court erred when it granted James Abrahamson’s motion to modify custody of the parties’ child.

FACTUAL BACKGROUND

In December 1992, the parties’ marriage was dissolved by decree of the District Court. Incorporated into that decree is a Custody, Support, and Property Settlement Agreement. The agreement granted the parties joint legal custody of Jordin, the sole child of the marriage, designated Michelle as the primary residential custodian, and provided James with visitation rights.

After the dissolution, both parties remained in Helena. However, in January 1995, Michelle told James that she might be moving to Salt Lake City, Utah. James filed a motion with the District Court, in which he moved for a modification of custody and a restraining order to prevent Michelle from leaving Helena before the matter could be heard by the District Court. Subsequently, Michelle filed her objections to James’ motions, and her own motion to amend custody and visitation.

In March 1995, Michelle provided James with formal notice of her intent to change Jordin’s residence from Montana to Utah. In an affidavit dated February 3, 1995, she stated that the purpose of her move was to attend the University of Utah and pursue a career in the Federal Bureau of Investigation. In a second affidavit, dated April 28, 1995, she stated that her purpose was to enroll in a criminal justice course at Salt Lake City Community College. She also stated that, in order to qualify for the in-state tuition rate and certain higher education grants, she was required to become a resident of Utah no later than June 1,1995. However, after Michelle moved to Utah, she instead enrolled in the University of Phoenix Business School in Salt Lake City. At the time of the hearing, she was not attending school, and it is disputed as to whether she ever did, in fact, attend classes.

The parties jointly submitted an order to the District Court which allowed Michelle to move to Utah, and provided that Donna Hale, a licensed clinical social worker, would conduct a custody evaluation and prepare a custody report.

The District Court heard the motion to modify custody on September 21, 1995.

At the hearing, James sought to establish that Michelle leads an unstable life and therefore, that Jordin’s best interest would be served by a modification of the custody arrangement. James testified about a number of subjects: his work schedule and how it would allow him to spend time with Jordin; his relationship with Jordin; his strengths as a parent; his ability and desire to serve as the primary residential custodian; his relationship with Michelle since the dissolution; and the family support network Jordin has in Helena. He expressed concern about Michelle’s ability to effectively parent Jordin, as well as her commitment to her role as a parent. He also responded to several allegations made by Michelle, including his possession of pornographic materials, his relationships with several women, and the fact that he had taken Jordin into the mens’ locker room at the athletic club to shower.

Denise Blankenship and Kristi Rivenes, both of whom were Mends of Michelle while she lived in Helena, testified that Michelle had been, on occasion, inadequate as a parent. Blankenship described Michelle as being inattentive to Jordin’s needs, and impatient with Jordin on several occasions. Rivenes testified that Michelle was an irresponsible parent because she “never thought of Jordin first.”

Michelle presented evidence to support her contention that a custody modification would not be in Jordin’s best interest. Paula Fenton, Jennifer Lamach, Roweena Meehan, Debbie Stanton, and Treanna Olson all testified that Michelle is a good parent, and that she has a strong relationship with Jordin. Karl Lieb, Michelle’s boyMend, also testified on her behalf. He stated that he has developed a strong relationship with Jordin, and that Jordin was doing well in Utah. Michelle’s testimony described her relationship with Jordin; her abilities as a parent; her reasons for moving to Utah; her work schedule; her availability as a parent; and her relationship with James since the divorce. Michelle asserted that both she and Jordin were doing extremely well since moving to Utah, and that a modification of custody would not be in Jordin’s best interest.

Throughout the hearing, there was a significant amount of testimony relating to Michelle’s purchase of a tanning salon in Salt Lake City. Michelle had engaged in negotiations for the purchase of one salon, but ultimately purchased another. Denise Robbins testified that Michelle had sought to purchase her salon, but that Michelle breached the contract. Furthermore, Robbins testified that Michelle planned to keep her day job and work at the salon during nights and weekends. Michelle disputed those claims, and asserted that the evidence regarding the purchase of the tanning salon was irrelevant to Jordin’s best interest. James asserted, however, that the evidence was relevant, and established that Michelle lacked stability. According to James, the evidence also contradicted Michelle’s stated purpose for moving to Utah. And finally, it established that her work schedule would not allow her to be an effective and available parent.

Donna Hale, a licensed clinical social worker, testified regarding her custody evaluation. Her report concluded that both Michelle and James genuinely love Jordin, and that there was no evidence of endangerment with either parent. Ultimately, her report recommended that, while both parents should continue to share joint legal custody, Michelle should be the primary residential custodian.

The District Court granted James’ motion to modify custody, designated James as the primary residential custodian, ordered that the parties should retain joint legal custody, and established a visitation schedule.

Subsequent to Michelle’s appeal from that judgment, James filed with this Court a motion to strike materials and references not before the District Court, and a request for sanctions. In support of that motion, James alleges that “Michelle’s actions in placing before this Court materials that were not part of the record of what occurred before the district court violate Rule 9, M.R.App.P.” It is well established that this Court will not consider any evidence not contained in the record on appeal. Johnson v. Killingsworth (1995), 271 Mont. 1, 3, 894 P.2d 272, 273. Therefore, James’ motion is granted, and the portion of Michelle’s reply brief that refers to James’ operation of Jordin Rivfer Products is stricken. James’ request for sanctions is denied.

DISCUSSION

Did the District Court err when it granted James’ motion to modify custody?

When we review a District Court’s findings related to a modification of custody, the standard of review is whether those findings are clearly erroneous. In re Marriage of Elser (1995), 271 Mont. 265, 270, 895 P.2d 619, 622. When findings upon which a decision is predicated are not clearly erroneous, we will reverse a District Court’s decision to modify custody only where an abuse of discretion is clearly demonstrated. Elser, 271 Mont, at 270, 895 P.2d at 622.

On appeal, Michelle asserts that the District Court erred when it: (1) failed to adopt the recommendations made by Donna Hale in her custody report; (2) misapprehended the effect of certain proffered evidence; and (3) failed to apply the law as set forth in § 40-4-212(3)(a), MCA.

Donna Hale’s custody report made the following recommendations: the parties should share joint legal custody; Michelle, as the primary residential custodian, should have custody of Jordin during the school year; and James should have visitation rights and custody of Jordin during the summer. The District Court, however, did not adopt the custody report’s recommendations. Instead, it modified custody and designated James as the primary residential custodian. Michelle asserts that the District Court abused its discretion when it failed to adopt the custody report’s recommendations.

Section 40-4-215, MCA, authorizes a district court to order an investigation and report concerning custodial arrangements for a child. In Marriage ofMoseman, we interpreted that statute and held that a district court is not bound by a court-ordered custody investigation. In re Marriage of Moseman (1992), 253 Mont. 28, 31, 830 P.2d 1304, 1306. After a review of our prior cases, we determined that they “require that a specific finding of fact is required regarding a custody investigation ordered by the court.” Marriage of Moseman, 253 Mont, at 31, 830 P.2d at 1306. An abuse of discretion will be found if “we are not able to determine if the District Court even considered the report.” Marriage of Moseman, 253 Mont, at 31, 830 P.2d at 1306.

In this case, the District Court’s findings of fact and conclusions of law refer to the custody report four times and recite its recommendations verbatim. Furthermore, when it rejected the custody report’s recommendations and granted the motion to modify custody, the District Court specifically found that Michelle was not “forthright with Donna Hale or the Court.” The District Court was not required to adopt the custody report. It was only required to consider the report when making its custody determination, and to make the required specific finding of fact. We conclude that the District Court fulfilled its obligations, and hold that it did not abuse its discretion when it failed to adopt Hale’s custody report.

Michelle next asserts that the District Court abused its discretion when it misapprehended the effect of certain proffered evidence.

At the outset of our analysis, we note that “[t]he trial court is in a better position than this Court to resolve child custody issues. The district court’s decision is presumed correct and will be upheld unless a clear abuse of discretion is shown.” In re Custody of J.M.D. (1993), 259 Mont. 468, 473, 857 P.2d 708, 712.

At the hearing, both of the parties and a number of witnesses, including Donna Hale, testified at great length. Virtually all of the testimony was contested. Michelle attempted to establish that she is a good parent. She also challenged James’ ability to parent, and defended both her decision to move to Utah and her work schedule. James, on the other hand, produced evidence establishing that Michelle’s life-style is unstable and impulsive. His witnesses testified that Michelle is inattentive to Jordin’s needs, is unwilling to place Jordin’s interests ahead of her own, and is often impatient with Jordin. The evidence related to Michelle’s purchase of the tanning salon suggested that her work schedule would be unpredictable, and could include nights and weekends. Furthermore, her work hours at the tanning salon could be in addition to those required by her day job. The District Court made an independent determination that Michelle had not been forthright with Donna Hale regarding the tanning salon and her work schedule, nor with the District Court regarding her reasons for moving to Utah.

Thus, ultimately, the District Court was faced with conflicting accounts, and forced to resolve a myriad of factual disputes. Based on all of the evidence and testimony presented at the hearing, the District Court determined that James’ situation is more stable than Michelle’s, and therefore, that James should have custody of Jordin during the school year. It is well established that issues of evidentiary weight and witness credibility are within the province of the trial court, and that “we will not substitute our judgment for that of the District Court.” In re Adoption of J.M.G. (1987), 226 Mont. 525, 528, 736 P.2d 967, 969. We have recognized that when the record contains conflicting evidence, “[i]t is the function of the District Court to resolve such conflicts.” In re Marriage of Penning (1989), 238 Mont. 75, 78, 776 P.2d 1214, 1216.

Based on our review of the record, we conclude that the District Court’s findings are supported by substantial evidence and were not clearly erroneous. Furthermore, we conclude that when it made its determination that Jordin’s best interest required a modification of custody, the District Court did not abuse its discretion.

Finally, Michelle alleges that the District Court failed to apply § 40-4-212(3)(a), MCA, which states:

(3) The following are rebuttable presumptions and apply unless contrary to the best interest of the child:
(a). Custody should be granted to the parent who has provided most of the primary care during the child’s life.

She contends that the District Court committed a fundamental error in its conclusion's of law when it failed to apply or mention § 40-4-212(3)(a), MCA.

Contrary to Michelle’s assertions, we conclude that the District Court did, in essence, apply § 40-4-212(3)(a), MCA. Despite its failure to specifically mention the statute, the District Court found that the presumption had, in fact, been rebutted. Michelle’s reliance on the District Court’s finding that both parents are fit to have custody is misplaced. Section 40-4-212(3)(a), MCA, does not require the District Court to find that one parent is unfit to have custody. Rather, it establishes a presumption in favor of the preexisting custodial parent, but only a rebuttable presumption. And as we recognized previously in this opinion, there was substantial evidence upon which the District Court based its decision to modify custody. The District Court found that Jordin’s best interest required a modification of custody and the designation of James as the primary residential custodian. It necessarily and logically follows that a failure to modify custody and the retention of Michelle as the primary residential custodian would not be in Jordin’s best interest. We conclude that the District Court, based on all of the evidence, determined that the statutory presumption had been adequately rebutted, and that the District Court’s failure to explicitly mention § 40-4-212(3)(a), MCA, constitutes, at most, harmless error. See Rule 61, M.R.Civ.P.

Our decision today does not render § 40-4-212(3)(a), MCA, meaningless. District courts should be cognizant of § 40-4-212(3)(a), MCA, and should take appropriate steps to ensure that it is, in all applicable cases, adequately considered. We hold only that, based on substantial evidence in this case, the statutory presumption was adequately rebutted, and the District Court’s failure to specifically mention § 40-4-212(3)(a), MCA, does not constitute reversible error.

The judgment of the District Court is affirmed.

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


author: CHIEF JUSTICE TURNAGE

text:
    LAWRENCE E. WALKER, Plaintiff and Appellant, v. MONTANA POWER COMPANY, Defendant and Respondent.
    No. 96-249.
    Submitted on Briefs August 15, 1996.
    Decided October 8, 1996.
    53 St.Rep. 943.
    278 Mont. 344.
    924 P.2d 1339.

      For Appellant: Michael J. San Souci and Peter B. Ohman, Law Office of Michael J. San Souci, Bozeman.
    For Respondent: W. Wayne Harper, Butte.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

In this action, Lawrence Walker alleges that he was constructively discharged from employment with Montana Power Company (MPC) and that, in discharging him, MPC violated the federal Americans with Disabilities Act (ADA) and the Montana Human Rights Act. A jury in the Eighteenth Judicial District Court, Gallatin County, found for MPC. Walker appeals. We affirm.

The issues are:

1. Does substantial evidence support the jury’s finding that Walker was not a disabled person?

2. Does substantial evidence support the jury’s finding that Walker was not constructively discharged from his employment with MPC?

3. Did the District Court err in refusing to set aside the jury’s verdict?

Lawrence Walker began working as a lineman for MPC in 1969. In 1987, he was promoted to City Foreman of the Bozeman, Montana, division of MPC.

In 1991, seven subforemen working immediately under Walker complained to Walker’s supervisor about Walker’s supervisory practices over workers on the line crews. Walker’s supervisors investigated the complaints and concluded that, despite their efforts to coach him on promoting a team spirit with his subordinates, Walker was not communicating well with the crews he supervised. They realigned his job duties and responsibilities. Walker’s salary remained the same, but he had different supervisory responsibilities.

Walker’s co-workers continued to report problems with his job performance. Additionally, other problems arose with his work performance. He was involved in two accidents with company vehicles. On several occasions, his company vehicle was observed parked at the Montana State University (MSU) gym on company time. Finally, the local MPC budget for tree trimming, for which he was responsible, was overspent for 1991. Walker’s supervisor gave him written “reminders,” or warnings, concerning the vehicle accidents and use of the MSU gym while on company time.

On April 8, 1992, MPC demoted Walker to the title and pay of lineman. Beginning on that date, Walker took eleven months of medical and personal leave. From April 15, 1992, through May 11, 1992, he obtained medical leave due to abdominal pain and sleep disorder. MPC extended this leave through September 11,1992, after Walker submitted doctors’ reports of Headaches, weight loss, gastritis, back pain, vertigo, and, in August, a fall causing a rib fracture.

Walker continued on sick leave until October 23, 1992, without submitting further written documentation of reason. On that date, he presented his supervisor at MPC with a doctor’s written statement that he was totally disabled, for unspecified reasons, through the end of November.

Walker then requested and was granted a three-month period of unpaid personal leave from December 1, 1992, to March 1,1993. He did not return to work on March 1. His supervisor at MPC asked him by letter to return by March 3 or risk being considered to have voluntarily resigned. When Walker did not appear for work as scheduled on March 3, MPC terminated him from employment. MPC’s written reason for the termination was that Walker “[r] efused to work at a Lineman position.”

In his complaint filed in District Court, Walker initially set forth ten counts against MPC and two of his supervisors there. The District Court ordered the ten counts reduced to two: wrongful discharge and disability discrimination. The court dismissed the two supervisors as defendants, leaving MPC as the sole defendant.

A five-day jury trial ended in a defense verdict. The jury found that Walker was not a disabled person and had not been constructively discharged from employment with MPC. Walker appeals.

ISSUE 1

Does substantial evidence support the jury’s finding that Walker was not a disabled person?

It is up to the jury to determine the credibility of witnesses. Cechovic v. Hardin & Associates, Inc. (1995), 273 Mont. 104, 112, 902 P.2d 520, 525. We will affirm the jury’s findings if substantial evidence supports them. Cechovic, 902 P.2d at 525.

The first question for the jury on the verdict form was, “Do you find from a preponderance of the evidence that Plaintiff, Lawrence Walker, is a disabled person within the definition furnished by the instructions in this matter?” The jury answered “no.”

The jury was instructed that “disability” means that a person has a mental impairment that substantially limits one or more of his major life activities, has a record of such impairment, or is regarded by the defendant as having such an impairment.

“Major life activities” was defined for the jury as “functions such as caring for one’s self, performing manual tasks, walking, seeing; hearing, speaking, breathing, learning, and working.” The jury was further instructed that an individual “has a record of an impairment” if “he has a history of a mental impairment, even if misclassified, that substantially limits one or more major life activities.” The jury was instructed that an individual is “regarded as having a disability” if “his mental impairment does not limit a major life activity, but his employer, through its agents and employees, treats him as being so limited.”

Walker claims he suffered from a mental disability brought about by work-related stress. He maintains that he consequently had an acknowledged impairment which substantially limited him in the major life activity of work. He also maintains that he had a documented record of such impairment and that he was regarded as having such an impairment.

While Walker has provided citations to cases which generally outline the law of disability and constructive discharge, neither of the cases upon which he places primary reliance is particularly helpful to his position in the present case. In Martinell v. Montana Power Co. (1994), 268 Mont. 292, 886 P.2d 421, this Court held that work is a major life activity under the Montana Human Rights Act. As noted above, the jury was properly instructed in the present case that work is a major life activity.

The other case upon which Walker places primary reliance is an unpublished opinion of the United States District Court of Montana, Richard Durham v. Montana Power Company (December 8, 1994), Cause No. CV-93-130. In that case, a jury found that Durham was a disabled person and a qualified individual with a disability under the ADA. The jury further found that MPC failed to provide Durham with reasonable accommodation for his disability. The verdict was upheld under the substantial evidence standard.

In the present case, Dr. John Robbins, an internist, testified that he began treating Walker in April 1992. He believed Walker suffered from stress primarily caused by his working conditions and that Walker’s symptoms would not be relieved unless the work issues were resolved.

Dr. Robbins further testified that in July 1992, he released Walker to return to work. Dr. Robbins testified that he did not diagnose Walker with major or clinical depression, but with mild depression associated with an anxiety state. He testified that he did not advise Walker to seek counseling from a psychologist or psychiatrist. Walker’s last documented visit to Dr. Robbins before his discharge was in August 1992, six months before his discharge, for dizziness resulting from a fall.

Walker contends MPC was aware of medical reports from his treating physicians indicating that he was suffering from job-induced stress and consequent weight loss, symptomatic of depression. He cites the Equal Employment Opportunity Commission’s Technical Assistance Manual, which provides that stress and depression may be impairments within the meaning of “disability” under the ADA.

29 C.F.R. § 1630.2(j)(3)(i) provides:

With respect to the major life activity of working-
(i) The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.

In Holihan v. Lucky Stores, Inc. (9th Cir. 1996), 87 F.3d 362, depression and anxiety prevented plaintiff Holihan from working as a store manager, but did not prevent him from working in real estate and sign-making business activities. Citing 29 C.F.R. § 1630.2(j)(3), the court ruled that Holihan’s depression and anxiety did not render him disabled within the meaning of the ADA, because the depression and anxiety did not prevent him from working at a broad range of jobs, but only at a particular job. Holihan, 87 F.3d at 366.

Similarly, here, Walker has not contended that his depression and stress prevented him from working as a supervisor at MPC or in other employment, but only at a lineman position. Additionally, he testified that he could have physically and mentally performed the duties of a lineman after his demotion, if MPC had “removed the violence” from the workplace.

The record of Walker’s depression and stress is limited, at best. During his eleven-month absence from work at the end of his employment with MPC, Walker gave various reasons to justify his medical leave. The only evidence that he received treatment by a psychologist or psychiatrist for his claimed mental disability was that he had six sessions with a clinical psychologist in April and May of 1994.

We turn next to Walker’s claim that he was regarded as having a disability. Walker cites the evidence that his supervisors allowed him to take extended leave from work and that they suggested he seek counseling. He also cites notes taken by one of his supervisors at a meeting with him, in which the supervisor wrote that his behavior was “paranoid and almost schizo.” Walker further cites MPC’s offer to discuss long-term disability leave with him as evidence that he was perceived as having a disability.

Both of Walker’s supervisors testified that they did not believe he had a record of, nor did they perceive that he had, a mental disability. MPC did not treat Walker as if he were limited in all fields of employment; only in the job of lineman supervisor.

We conclude that the jury properly could have determined that the credible evidence weighed in favor of a finding that Walker did not have a mental impairment which rose to the level of a disability and that he did not have a record of such an impairment. Similarly, we conclude that substantial credible evidence exists in the record that Walker was not regarded as having a disability by MPC. We hold that substantial evidence supports the jury’s finding that Walker was not disabled.

ISSUE 2

Does substantial evidence support the jury’s finding that Walker was not constructively discharged from his employment with MPC?

As part of its verdict, the jury answered in the negative the following question: “Do you find from a preponderance of the evidence that Plaintiff, Lawrence Walker, was constructively discharged from his employment with Montana Power Company?” The jury was instructed that, to prove this claim, Walker must establish that he voluntarily terminated his employment with MPC because of a situation that was created by an act or omission of MPC and that such act or omission created a situation that an objective, reasonable person would find so intolerable that voluntary termination was the only reasonable alternative.

Walker argues that MPC’s failure to accommodate him by removing him from a hostile work environment constitutes a constructive discharge. In this regard, he again cites the Martinell case. Martinell had asked to be placed on day shifts instead of rotating shifts because of her health problems caused by pelvic inflammatory disease. This Court held that failure to accommodate Martinell by changing her work shifts was tantamount to a constructive discharge. Martinell, 886 P.2d at 436. In the present case, the jury was instructed on the law of constructive discharge without objection by Walker. Beyond general statements of the law of constructive discharge and disability, we are not persuaded that Martinell controls in this case.

Walker complained of “violence in the workplace,” which he maintained caused him a mental disability. In that regard, he testified about an incident of sexual harassment against a female MPC employee which occurred in the early 1980’s. He also described two other incidents to the jury, one of which involved an individual employed by a company which contracted with MPC, and the other involving an employee who was terminated from employment with MPC following the incident.

Walker contends that had he taken the demotion to a lineman position, he would have been under the supervision of the same individuals whose performance dissatisfied him while he was a supervisor. He appears to be arguing that his April 1992 demotion to lineman was a constructive discharge. He attempted to present a case at trial that he was a conscientious MPC employee who was impopular with other employees because he tried to make them live up to his work standards and ethics.

Walker’s supervisors testified that they informed him they had placements available for him other than under the men he formerly supervised, in the meter shop or on a substation crew, where he would not be working with the individuals about whom he had complained. Moreover, “[t]he ADA does not require an employer to accommodate an employee who cannot get to work.” Kotlowski v. Eastman Kodak Co. (W.D.N.Y. 1996), 922 F.Supp. 790, 798. Walker was not discharged until a full eleven months after his demotion, during which eleven months he had not reported for work.

The record contains ample evidence that Walker’s discharge from MPC’s employ was for good cause — i.e., his failure to report for work after the expiration of his eleven month long series of medical and personal leave. We conclude that the record contains substantial evidence to support the jury’s finding that Walker was not constructively discharged.

ISSUE 3

Did the District Court err in refusing to set aside the jury’s verdict?

This Court will not overturn a decision to grant or deny a motion for a new trial absent a showing of manifest abuse of discretion. Montana Bank of Red Lodge, N.A. v. Lightfield (1989), 237 Mont. 41, 49, 771 P.2d 571, 577.

Walker maintains that the jury’s brief deliberation (forty minutes), when taken in conjunction with the relative complexity of the legal issues and the weight of the evidence in this case, supports his position that the court abused its discretion in refusing to set aside the verdict.

As a general rule, shortness of time taken by a jury in reaching its verdict has no effect upon the validity of the verdict. Lappe v. Blocker (Iowa 1974), 220 N.W.2d 570, 574. Only when the brief jury deliberation is coupled with a verdict that is contrary to the great weight of the evidence should the trial court set aside the verdict. Kearns v. Keystone Shipping Co. (1st Cir. 1988), 863 F.2d 177, 182.

The relative complexity of the legal issues in this case had been narrowed and clarified by the court and counsel by the time the court gave its instructions to the jury. The verdict form contained just seven questions, not all of which the jury had to answer if it determined initially that Walker was not a disabled person within the meaning of the instructions. The second question the jury had to consider was whether Walker was constructively discharged, which issue, like whether he was disabled, we have discussed above. Based on the streamlining of the issues and upon our consideration of the issues which remained, we conclude that the jury’s verdict is not contrary to the weight of the evidence and that the court did not abuse its discretion in refusing to set aside the verdict.

Walker also lists as an issue whether “the trial court abused its discretion in excluding certain highly relevant testimony bearing on the motivation and pattern of hostile conduct directed against Walker by his antagonists.” However, Walker did not farther explain or argue this issue in either of his briefs to this Court. Therefore, we do not address it.

Affirmed.

JUSTICES HUNT, TRIEWEILER, ERDMANN and LEAPHART concur.


author: JUSTICE TRIEWEILER JUSTICE LEAPHART, JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. EARL DALLAS FORD, Defendant and Appellant.
    No. 95-158.
    Submitted on Briefs June 13, 1996.
    Rehearing Denied November 14, 1996.
    Decided October 17, 1996.
    53 St.Rep. 947.
    278 Mont. 353.
    926 P.2d 245.

      For Appellant: William Boggs, Attorney at Law, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena; Robert L. “Dusty” Deschamps HI, Missoula County Attorney, Missoula.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The Defendant, Earl Dallas Ford, was charged by information filed in the District Court of the Fourth Judicial District in Missoula County, with the offense of sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA. Following a trial by jury, Ford was convicted and sentenced. He appeals the District Court’s judgment. We affirm the District Court.

The issues on appeal are:

1. Was there sufficient evidence to support the jury verdict?

2. Did the District Court err when it denied Ford’s motion for a mistrial?

3. Did the District Court err when it overruled Ford’s objections to questions asked during his cross-examination, and to statements made during the State’s closing argument regarding his sexual preference?

4. Did the sentence imposed by the District Court violate Ford’s rights pursuant to Article II, Section 22, of the Montana Constitution?

FACTUAL BACKGROUND

Earl Dallas Ford was charged with the offense of sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA. The information alleged that Ford drugged and incapacitated Brad Stahl, and then engaged in sexual intercourse with Stahl, without Stahl’s consent. He entered a plea of not guilty.

During pretrial proceedings, the State filed a “Notice of Intent to Introduce Evidence of Other Acts,” pursuant to State v. Just (1979), 184 Mont. 262, 602 P.2d 957, and the notice requirements of § 46-13-109, MCA. The State sought to present evidence of a 1991 conviction in California for felony child molestation for which Ford was sentenced to prison for three years. The State also filed a “Notice of Intent to Seek Increased Punishment,” pursuant to the persistent felony offender statutes, §§ 46-18-501, -502, and -503, MCA.

Trial by jury commenced on October 11, 1994. The District Court granted Ford’s motion opposing the State’s “Notice of Intent to Introduce Evidence of Other Acts.” The District Court also granted the State’s motion to allow the investigating officer, Tom Lewis, to testify that, at the time of arrest, Ford admitted to raping a boy in California.

Brad Stahl, the complaining witness, testified that on July 14, 1994, after attending a barbecue in East Missoula, he slept on the living room couch in Earl Ford’s trailer. He was not quite asleep when he felt something placed over his mouth, and was then unable to breathe. When he regained consciousness, he realized that someone’s penis was in his anus. Although awake, he was disoriented and unable to move. When finally able to move, he went into the bathroom and discovered that he was not wearing any clothes. He walked back into the living room, found his clothes under the couch, and put them on. Ford then sat down next to him on the couch. Brad attempted to leave the trailer, but Ford rubbed baby-oil on his back, and tried to convince him to lie down and go back to sleep. Again, Brad attempted to leave, but Ford pushed him into his bedroom and onto the bed. Brad exited the bedroom, and was finally able to leave the trailer. Feeling unable to drive, he slept in his truck for one hour. He then woke up, drove to his uncle’s house, and slept in his truck for three more hours.

The next day, Brad, accompanied by his cousin, Charlie, and his uncle, Kevin, confronted Ford. Ford apologized, admitted what he had done, and told Brad he was “a good man.” Brad demanded the return of his underwear, which Ford retrieved from his bedroom.

Several days later, Brad went to the police and to a doctor. Although Ford had not ejaculated in him, Brad suffered some tearing of his anus. He told the nurse that he had been drugged, that anal intercourse had been performed upon him, that he had not consented to intercourse, and that he was angry and emotional. At the time of trial, he was seeing a counselor.

Charlie Stahl confirmed that on July 14, 1994, Brad was not intoxicated. He described the confrontation between Ford and Brad on July 15, 1994, noting that Ford apologized repeatedly. He also recounted Brad’s emotional distress.

Likewise, Kevin Stahl confirmed that Brad was not intoxicated, and provided a similar description of the confrontation between Ford and Brad. Furthermore, he testified that on the morning of July 15, 1994, Kevin had found Brad asleep in his truck. As Brad exited the truck and asked for a hug, Kevin immediately knew something was wrong. The two men then drove around for an hour while Brad relayed the events of the rape. Kevin also recounted the physical and emotional pain Brad was experiencing.

Officer Tom Lewis, a deputy sheriff with the Missoula County Sheriff’s Department, was the investigating and arresting officer. Lewis testified regarding his interview with Brad, his attempts to locate Ford, and that, pursuant to a search of Ford’s trailer, he found a small bottle of Johnson’s baby oil. During his testimony, the following exchange occurred:

Q: Did you ask to search his residence?
A: Yes, I did. I asked Mr. Ford for consent to search. Prior to that, when I advised Mr. Ford that there were charges pending on violation out of another state and-

At that point, Ford objected based on the District Court’s ruling regarding evidence of other acts. After the District Court overruled his objection, Ford moved for a mistrial, which the District Court denied. The State proceeded to question Officer Lewis. No further information regarding Ford’s prior offenses was elicited. Immediately following Lewis’s testimony, the District Court issued a cautionary instruction. The jury was told to consider only the merits of the instant case and not any other factors, particularly whether Ford was wanted in any other jurisdiction.

Earl Ford testified on his own behalf, and denied having sexual intercourse with Brad Stahl. He admitted that he had rubbed baby-oil on Brad’s back, but claimed he was merely soothing Brad, who had complained of a bad hangover. His apologies the next day, he alleged, were only for his grumpy behavior. During the State’s cross-examination of Ford, the following exchange occurred:

Q: It is true, is it not, that you have an interest in homosexuality?
A: Yes, it is.
MR. BECCARI (defense counsel): Your honor, I am going to object, that is so incredibly prejudicial. It is nothing I brought up in my direct examination.
THE COURT: Overruled.
Q: Would you explain that interest, please?
A: I just have an interest in men.
Q: Are you a homosexual, bisexual or what?
A: Bisexual.

Subsequently, during the State’s closing argument, the following statements were made:

THE STATE: I’m hesitant and reluctant to get into this, but I feel I have to call this to your attention. I am not gay bashing, I am not bisexual bashing, I have got better things to do. But we have got a man here—
MR. BECCARI (defense counsel): I am going to object to this in closing argument. It is not supported by any evidence, it is totally—
THE COURT: It is argumentative, it is admitted.
THE STATE: We have a man that admitted he is bisexual. That’s exactly what he is charged with doing. What he does with consent with somebody, I don’t give a rip. But Brad cares what happened to him.

The jury returned a guilty verdict, and a presentence investigation report was ordered. At the sentencing hearing, the District Court designated Ford as a persistent felony offender, pursuant to §§ 46-18-501, -502, and -503 MCA; and a dangerous offender for purposes of parole. The District Court sentenced him to 100 years, and ordered that he shall not be eligible for parole or participation in a supervised release program while serving his term.

Ford now appeals to this Court. It should be noted that his appeal is accompanied by an Anders brief, filed by the Missoula Public Defender Office, contending that there are no meritorious appealable issues in this case. We affirm the judgment of the District Court.

ISSUE 1

Was there sufficient evidence to support the jury verdict?

When we review the sufficiency of the evidence supporting a jury verdict in a criminal case, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Licht (1994), 266 Mont. 123, 131, 879 P.2d 670, 675.

The Anders brief, while contending that there are no meritorious grounds for appeal, provides notice to this Court that Ford wishes to raise the following issue: That he was unfairly arrested, charged, and convicted on the word of Brad Stahl, who was lying. In essence, Ford claims that there was insufficient evidence to support the jury’s verdict.

The jury was presented with the conflicting testimony of Brad Stahl and Earl Ford. Ultimately, they decided to accept Brad’s version, and to reject Ford’s version. This is the jury’s prerogative according to the law in Montana. Section 25-7-103, MCA, provides that in a jury trial all questions of fact, with limited exceptions, are to be decided by the jury.

Our prior decisions establish that in sex offense cases the victim’s testimony need not be corroborated. State v. Gilpin (19288), 232 Mont. 56, 70, 756 P.2d 445, 453. In State v. Biehle (1992), 251 Mont. 257, 824 P.2d 268, the victim testified that the sexual contact was committed by the defendant. We held that such testimony was sufficient to sustain a guilty verdict. Biehle, 251 Mont, at 260, 824 P.2d at 271. Additionally, the jury heard the testimony of Charlie Stahl, Kevin Stahl, and Officer Lewis, and was presented with the bottle of baby oil found in Ford’s trailer.

Based on the evidence presented, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Accordingly, we hold that there was sufficient evidence to support the jury’s verdict.

ISSUE 2

Did the District Court err when it denied Ford’s motion for a mistrial?

When we review a District Court’s ruling on a motion for a mistrial, the standard of review is whether there is clear and convincing evidence that the court’s ruling is erroneous. State v. Greytak (1993), 262 Mont. 401, 404, 865 P.2d 1096, 1098. Furthermore, a mistrial is appropriate when there is a demonstration of manifest necessity, or when the defendant has been denied a fair and impartial trial. United States v. Perez (1824), 22 U.S. 579, 580, 6 L. Ed 165; (9 Wheat.) State v. Brush (1987), 228 Mont. 247, 252-53, 741 P.2d 1333, 1336; State v. Doney (1981), 194 Mont. 22, 32-33, 636 P.2d 1377, 1383. This Court has invoked the manifest necessity doctrine twenty-two times since it was first employed in State v. Close (1981), 191 Mont. 229, 623 P.2d 940. Unfortunately, we have not remained consistent in the fifteen years since Close, and we now have a myriad of different standards by which to review the denial of a mistrial. Today, we clarify the standard and announce a prospective rule. We hold that a motion for a mistrial will be granted when there is either a demonstration of manifest necessity, or where the defendant has been denied a fair and impartial trial.

At trial, Officer Lewis testified:

I asked Mr. Ford for consent to search. Prior to that, when I advised Mr. Ford that there were charges pending on violation out of another state and—

(emphasis added). Ford’s objection to this testimony and subsequent motion for a mistrial were both denied. On appeal, Ford claims that Officer Lewis’s statement constituted inadmissible evidence of other crimes and “ensured the jury would convict [Ford] based on who he was rather than what he did.” Therefore, he contends, the District Court committed reversible error when it denied his motion for a mistrial.

We conclude that there was not a manifest necessity for a mistrial, and that Ford was not denied a fair and impartial trial. First, the statement had only a slight prejudicial effect, if any. Officer Lewis did not testify about any prior crimes or convictions. Rather, he mentioned that charges from another jurisdiction were pending, and that they were one of the reasons he was attempting to locate Ford. He did not speculate about the nature of those other charges.

Second, any prejudicial effect the statement might have had was cured by the following cautionary instruction which was given by the District Court:

Ladies and gentlemen, you have just heard the testimony of Detective Lewis concerning his attempts to locate the Defendant. The only thing you are to consider is the merits of this case alone. You are not to consider any other factors, particularly whether any other jurisdiction wanted him or anything of that nature. And you are not to speculate at all from any of that information. You are to confine yourself solely to the aspect of guilt or innocence of the Defendant on these particular charges and do no speculation as to any other matters. Agreed? Does anybody have any problem with that concept?

We have held that “[a]n error in the admission of evidence may be cured if the jury is admonished to disregard it.” State v. Conrad (1990), 241 Mont. 1, 9, 785 P.2d 185, 190. In Conrad we went on to conclude that, in view of the trial court’s admonishment of the jury after evidence of the defendant’s other charged misconduct came in during cross-examination, the State’s reference to prior convictions did not constitute reversible error. Conrad, 241 Mont, at 9, 785 P.2d at 190.

We conclude that Officer Lewis’s statement could have had little, if any, effect on the jury’s decision, and that Ford fails to meet his burden of showing clear and convincing evidence of error by the District Court. We agree with the District Court that the circumstances of this case did not warrant a mistrial, and conclude that Ford received a fair and impartial trial. Accordingly, we hold that the District Court did not err when it denied Ford’s motion for a mistrial.

ISSUE 3

Did the District Court err when it overruled Ford’s objections to questions asked during his cross-examination, and to statements made during the State’s closing argument regarding his sexual preference?

When we review an evidentiary ruling, the standard of review is whether the district court abused its discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. The district court is in the best position to rule on the admissibility of evidence at trial. It has the opportunity to evaluate the contextual relevance of proffered evidence, and the impact such evidence will have on the jury. Rulings regarding the admissibility of evidence are left to the sound discretion of the trial court, and will not be overturned on appeal absent a showing of manifest abuse of discretion. Greytak, 262 Mont, at 405, 865 P.2d at 1098. Thus, our deferential standard of review gives the district court “great discretion” in ruling on the admissibility of evidence. State v. Larson (1992), 255 Mont. 451, 454, 843 P.2d 777, 779.

During the State’s cross-examination of Ford, the following exchange occurred:

Q: It is true, is it not, that you have an interest in homosexuality?
A: Yes, it is.
MR. BECCARI (defense counsel): Your honor, I am going to object, that is so incredibly prejudicial. It is nothing I brought up in my direct examination.
THE COURT: Overruled.
Q: Would you explain that interest, please?
A: I just have an interest in men.
Q: Are you a homosexual, bisexual or what?
A: Bisexual.

Subsequently, during the State’s closing argument, the following statements were made:

THE STATE: I’m hesitant and reluctant to get into this, but I feel I have to call this to your attention. I am not gay bashing, I am not bisexual bashing, I have got better things to do. But we have got a man here—
MR. BECCARI (defense counsel): I am going to object to this in closing argument. It is not supported by any evidence, it is totally— THE COURT: It is argumentative, it is admitted.
THE STATE: We have a man that admitted he is bisexual. That’s exactly what he is charged with doing. What he does with consent with somebody, I don’t give a rip. But Brad cares what happened to him.

Ford asserts that the State’s questions during his cross-examination and statements during its closing argument regarding his sexual preference were so prejudicial that he was deprived of a fair trial.

We hold that, based on the facts of this case, the probative value of the State’s evidence was not substantially outweighed by the danger of unfair prejudice. See Rule 403, M.R.Evid. By admitting this evidence, the District Court did not abuse its discretion, and did not commit reversible error.

There is, unquestionably, the potential for prejudice in this situation. There will be, on virtually every jury, people who would find the lifestyle and sexual preferences of a homosexual or bisexual person offensive. While everyone should be offended by the crime Ford was found to have committed, our criminal justice system must take the necessary precautions to assure that people are convicted based on evidence of guilt, and not on the basis of some inflammatory personal trait. Therefore, we caution prosecutors and district courts not to assume, based on this opinion, that evidence of a defendant’s sexual preference would be admissible under most circumstances. In this case, however, we conclude that Ford’s rights were adequately safeguarded, and that he was not convicted because he is a bisexual.

Despite the potential for prejudice, Ford’s sexual preference was relevant to, and probative of an essential issue in this case. Ford was charged with sexual intercourse without consent, committed upon a person of the same gender. The State’s questions on cross-examination, and statements during closing argument, were probative of whether Ford fit the profile of someone who would commit the act for which he was accused. This is especially true given the fact that, because of the nature of the crime, not all members of society would fit the perpetrator’s profile. Furthermore, we have recognized that the State, when making its closing argument, has the right to comment upon the evidence and suggest to the jury the inferences to be drawn therefrom. See State v. Campbell (1990), 241 Mont. 323, 329, 787 P.2d 329, 333.

Finally, it has not been shown that the State’s questions and statements prejudiced Ford’s substantial rights.

Before rendering its verdict, the jury was presented with the following evidence: the baby oil bottle found in Ford’s trailer; the admission of guilt and expressions of remorse made by Ford to the victim; Ford’s unlikely explanation for his expressions of remorse; and the testimony of Charlie Stahl, Kevin Stahl, Officer Lewis, and, most significantly, Brad Stahl. The possible impact of the jury’s knowledge that Ford was bisexual pales by comparison to the likely impact of the overwhelming evidence of his guilt.

Accordingly, we hold that the District Court did not abuse its discretion when it overruled Ford’s objections to the State’s questions on cross-examination and statements during its closing argument.

ISSUE 4

Did the sentence imposed by the District Court violate Ford’s rights pursuant to Article II, Section 22, of the Montana Constitution?

It is well established that our review of a sentence will be limited to questions of legality. State v. Graves (1995), 272 Mont. 451, 463, 901 P.2d 549, 557; State v. Hurlbert (1988), 232 Mont. 115, 123, 756 P.2d 1110, 1115. We will not review a sentence for mere inequity; the proper forum for a review of that nature is the Sentence Review Division. State v. Almanza (1987), 229 Mont. 383, 386, 746 P.2d 1089, 1090-91.

Ford asserts that his sentence of 100 years, without parole eligibility, violates the excessive sanction provision of Article II, Section 22, of the Montana Constitution. That provision states, “[e]xcessive bail shall not be required, or excessive fines imposed, or cruel and unusual punishments inflicted.” He claims that the harshness of his sentence is unconstitutionally disproportionate to the gravity of his crime.

Before sentencing Ford, the District Court found that he is a persistent felony offender, pursuant to §§ 46-18-501, -502, and -503, MCA. Further, during pretrial proceedings, the State filed a “Notice of Intent to Seek Increased Punishment,” pursuant to §§ 46-18-501, -502, and -503, MCA. Based on those statutes and the presentence investigation report, the District Court sentenced Ford to prison for a term of 100 years, designated him a dangerous offender, and declared him ineligible for parole.

A sentence is not illegal when it is within the parameters provided by statute. State v. Henry (1995), 271 Mont. 491, 497-98, 898 P.2d 1195, 1199. Under § 46-18-502(1), MCA, “a persistent felony offender shall be imprisoned in the state prison for a term of not less than 5 years or more than 100 years.” Ford’s sentence clearly falls within the parameters of § 46-18-502, MCA.

“Trial judges are granted broad discretion to determine the appropriate punishment.” State v. Hembd (1992), 254 Mont. 407, 411, 838 P.2d 412, 415. In exercising its discretion and sentencing Ford, the District Court considered the following factors: the facts of the instant crime; his prior criminal history of sexually preying on young boys; previous attempts by professional therapists and state officials to treat his problems; his apparent unwillingness to accept the provided treatment; and his predatory nature. All of the aforementioned factors are appropriate considerations when sentencing a defendant.

Accordingly, we hold that the District Court’s sentence was legally imposed and did not violate Ford’s rights pursuant to Article II, Section 22, of the Montana Constitution.

Our decision today does not affect any right to relief Ford may have from the Sentence Review Division.

The judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and ERDMANN concur.

JUSTICE LEAPHART,

specially concurring.

I specially concur in issue three which has been stated as follows: Did the District Court err when it overruled Ford’s objections to questions asked during his cross-examination, and to statements made during the State’s closing argument regarding his sexual preference?

This issue focuses on the fact that, during cross-examination of Ford, the State elicited testimony indicating that he was bisexual. Then, during closing arguments, with regard to bisexuality, the State argued: “That’s exactly what he is charged with doing. What he does with consent with somebody, I don’t give a rip. But Brad cares what happened to him.”

The Court herein has held that the probative value of the State’s evidence was not substantially outweighed by the danger of unfair prejudice and the District Court did not abuse its discretion in admitting this evidence. The Court holds that Ford’s sexual preference was probative of whether Ford fit the profile of someone who would commit the act of sexual intercourse without consent upon a person of the same gender.

For the reasons set forth below, I disagree with the above rationale as to admissibility of evidence of sexual preference in this case.

Rule 404(a)(1), M.R.Evid., provides:

(a)... Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same.

Character traits pertaining to sexuality or sexual preference have specifically been held to fall within the character evidence prohibition of Rule 404(a)(1).

InBrewington v. State (Tex. Grim. App. 1991), 802 S.W.2d 691, 692, the Court of Criminal Appeals of Texas held that it was clear from the record that the prosecutor sought to introduce testimony that appellant was a fixated pedophile solely to prove appellant’s propensity to molest children and that he acted in conformity therewith. The court held “[t]his type of character testimony is prohibited when it is sought to be introduced to prove that a person acted in conformity therewith.”

In Blakeney v. State (Tex. Ct. App. 1995), 911 S.W.2d 508, Blakeney was convicted of aggravated sexual assault on a child. In reversing the conviction, the Court of Appeals of Texas stated that:

[t]he relevant events [sexual abuse of a child] ... can be adequately explained without evidence of appellant’s bisexuality/homosexuality to render a complete and whole picture for the jury. Appellant’s admission of his sexual preference is, therefore, background contextual evidence. Moreover, introduction of this evidence, in the present case, could only serve to send the jury the message that all homosexual men are also molesters of little boys. Such an inference, unsupported by evidence or logic, is an improper basis for introducing evidence of appellant’s sexual preference. Because the evidence has an impermissible character component, we conclude that the trial court abused its discretion in admitting evidence of appellant’s sexual preference.

Blakeney, 911 S.W.2d at 515.

In Cohn v. Papke (9th Cir. 1981), 655 F.2d 191, the plaintiff brought suit against law enforcement officers who arrested him on charges of soliciting homosexual acts. The defense counsel inquired of the plaintiff: “By the way, Mr. Cohn, are you bisexual?” Cohn, 655 F.2d at 192. Relying on Rules 403 and 404, F.R.Evid., the Circuit Court held that this line of questioning was improper since its only purpose was to show that it was within the plaintiff’s character to commit homosexual acts. Cohn, 655 F.2d at 193-94.

I agree with the reasoning expressed in the above-cited opinions. That is, that Rule 404, M.R.Evid., proscribes the introduction of evidence of sexual preference merely to show that the defendant had a particular character trait and that he acted in conformity with that trait under these circumstances.

In State v. Gommenginger (1990), 242 Mont. 265, 271, 790 P.2d 455, 459, we held that Rule 404(a)(1), M.R.Evid., only allows the prosecution to introduce character evidence of an accused as proof that he acted in conformity therewith to rebut defense evidence of the accused’s good character offered to prove the same. As in Gommenginger, the present case is not one in which the defense opened the door by presenting evidence of the defendant’s good character. Accordingly, I would hold that the District Court erred in not sustaining Ford’s objections to the questions on cross-examination and closing remarks concerning his bisexuality.

However, even assuming admission of this evidence was error, I agree with the Court that, given the overwhelming evidence of guilt, it did not prejudice Ford’s substantial rights. Thus, I would affirm the conviction.

JUSTICE TRIEWEILER

specially concurring.

Justice Leaphart’s special concurrence is based on the premise that evidence of sexual preference is evidence of a person’s character. I disagree. The fact that a person is heterosexual, homosexual, or bisexual is no more evidence of that person’s character than being left-handed is evidence of character.

The question is simply whether the evidence is relevant to any material issue.

Furthermore, I disagree that those cases which involve the molestation of children are in any way relevant to the issue in this case. Evidence that someone has engaged in conduct which constitutes a serious criminal offense and is harmful to others is not analogous to evidence of a person’s sexual preference among other consenting adults.

For these reasons, I disagree that Rule 404(a)(1), M.R.Evid., is applicable to the evidence offered in this case.