author: JUSTICE HARRISON

text:
    IN THE MATTER OF J.J.C.H. and C.M.H., Youths in Need of Care.
    No. 91-423.
    Submitted on Briefs January 23, 1992.
    Decided March 3, 1992.
    49 St.Rep. 193.
    251 Mont. 158.
    827 P.2d 812.

      For Appellant: Paul E. Toennis, Toennis Law Office, Billings.
    For Respondent: Bard Middleton, Attorney at Law, Billings.
    Guardian Ad Litem: Damon Gannett and Marvin R. Ventrell, Attorneys at Law, Billings.
   JUSTICE HARRISON

delivered the Opinion of the Court.

C.H., the natural mother of J.J.C.H. and C.M.H., appeals from the order of the Thirteenth Judicial District Court, Yellowstone County, terminating her parental rights and awarding custody and care of J.J.C.H. and C.M.H. to the Montana Department of Family Services. We affirm.

The mother presents one issue on appeal which we rephrase as follows: Did the District Court abuse its discretion when it terminated the mother’s parental rights to J.J.C.H. and C.M.H.?

C.H. is a twenty-three-year-old mildly mentally retarded woman. She is the natural mother of three children, two of whom are the subjects of this proceeding, J.J.C.H. and C.M.H. J.J.C.H. was born November 30,1987; C.M.H. was born October 26,1989. The location of the fathers is unknown.

The Yellowstone County Health Department became involved with this family on October 30, 1989, after receiving a referral from Saint Vincent Hospital that a new mother needed assistance with her newborn baby. The county health nurse instructed C.H. on feeding techniques. After repeated instruction, C.H. demonstrated little progress in improving her feeding techniques.

The Department of Family Services (Family Services) became involved with this family on November 3, 1989, after receiving a referral that C.H.’s home was a health and safety hazard. Upon arriving at C.H.’s residence, the social worker found the residence ■unsanitary. The social worker testified that she found dirty dishes, dirty diapers, animal feces, food, garbage, and cigarette butts strewn about the house. It appeared that dishes were being reused rather than washed. The newborn apparently had not been bathed for several days. J.J.C.H., approximately two years old at the time, was observed picking up food from the floor and eating it.

At the time of the initial involvement, C.H. and her two children lived with C.H.’s sister, her three children, and her boyfriend. Some of the uncleanliness was ascribed to C.H.’s sister, however, cleanliness of the home continued to be a concern throughout these proceedings.

Additionally, many household hazards that could be potentially dangerous to young children existed in C.H.’s home. C.H. experienced difficulty in protecting her children from such hazards because she did not recognize them as hazards or she lacked the attention needed by a parent to keep such items away from children. Both the social worker and the county health nurse observed J.J.C.H. with hazardous items in the child’s hands; they also observed C.H.’s failure to take the items from J.J.C.H. until instructed to do so.

Both children suffered developmental delays, yet when they were removed from C.H.’s care their development improved substantially. For example, C.H. experienced difficulty in providing stimuli for the children’s intellectual development. J.J.C.H. was nonverbal at age two, while average children his age have a vocabulary of approximately twenty words. To confront this problem, C.H. was unsuccessfully instructed to speak properly to the children and not to use “baby talk.”

Shortly after the County Health Department and Family Services became involved with C.H., C.H. moved to Lewistown. Referrals were made to Lewistown Family Services shortly upon C.H.’s arrival. Family Services filed a petition in the Tenth Judicial District Court for temporary investigative authority on January 19, 1990, after it learned that C.M.H. was admitted to the hospital with double ear infections and diarrhea that began approximately three to four days prior. The attending physician’s diagnosis was moderately severe failure to thrive, probably secondary to inadequate parenting. On that basis, the court issued an order for protective services on January 22, 1990; both children were placed in a foster home.

J.J.C.H. and C.M.H. were transferred to a foster home in Billings when C.H. moved back to Billings. C.H. met with social workers and the county health nurse on various occasions regarding parenting her children. C.H. had supervised visits with her children in which the social workers and nurses observed C.H.’s conduct around the children.

C.H. entered into three service treatment agreements with Family Services which were approved by the court. The first agreement was effective March 21, 1990, through April 19, 1990; the second was effective June 1, 1990, through October 19, 1990; and the third was effective December 10, 1990, through March 1, 1991. The three agreements had varying terms, but all terms were intended to help C.H. become a fit parent to regain custody of her children. Pursuant to these agreements, C.H. met with the social workers and C.H.’s children weekly, she attended some parenting classes, and she met with the county health nurse. The agreements also instructed C.H. on home cleaning techniques and safety standards. In violation of the agreements, C.H. failed to adequately clean her home, she failed to recognize potential hazardous conditions for the children, and she did not demonstrate an increased knowledge in parenting. C.H. also missed several appointments with the county health nurse.

Lewistown Family Services petitioned the court for temporary custody. On May 25, 1990, Judge Rapkoch adjudicated J.J.C.H. and C.M.H. as youths in need of care and granted legal custody of the children to Family Services for six months. Jurisdiction was then transferred from Lewistown to Billings where the Yellowstone County Attorney, on behalf of Family Services, filed a petition for permanent legal custody of J.J.C.H. and C.M.H., and for the termination of C.H.’s parental rights.

C.H. gave birth to her third child in December of 1990. In mid-January, C.H. and her new infant, N.T., relocated to the Crittenton Home in Helena where C.H. received in-house, supervised parenting instruction.

After hearing arguments on March 1 and 4, 1991, the District Court terminated C.H. ’s parental rights to J.J.C.H. and C.M.H. and awarded Family Services permanent custody of the children. The court concluded that J.J.C.H. and C.M.H. were adjudicated youths in need of care pursuant to § 41-3-102, MCA, that C.H. had not been in complete compliance with the service treatment agreements, and that her unfitness was unlikely to change. The court further found that a continuation of the parent/child relationships between C.H. and J. J.C.H. and C.M.H. would likely result in continued endangerment and neglect and that it was in the best interest of the children that C.H.’s parental rights be terminated. C.H. appeals.

The sole issue on appeal is whether the District Court abused its discretion in terminating C.H.’s parental rights to J. J.C.H. and C.M.H. Ajudicial determination terminating parental rights must be supported by clear and convincing evidence. In re A.W. (1991), 247 Mont. 268, 272, 806 P.2d 520, 523. This Court will not disturb the district court’s decision on appeal unless a mistake of law exists or a finding of fact is not supported by substantial credible evidence. In re S.P. (1990), 241 Mont. 190, 194, 786 P.2d 642, 644. We presume that the district court’s decision is correct and will uphold its findings unless a clear abuse of discretion exists. In re S.P., 241 Mont. at 194, 786 P.2d at 644.

Termination of parental rights is governed by § 41-3-609, MCA, which states in part:

Criteria for termination. (1) The court may order a termination of the parent-child legal relationship upon a finding that...:
(c) the child is an adjudicated youth in need of care and both of the following exist:
(1) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time;...
(2) In determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court must enter a finding that continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care. In making such determinations, the court shall consider but is not limited to the following:
(a) emotional illness, mental illness, or mental deficiency of the parent of such duration or nature as to render the parent unlikely to care for the ongoing physical, mental, and emotional needs of the child within a reasonable time;
(g) any reasonable efforts by protective service agencies that have been unable to rehabilitate the parent.
(3) In considering any of the factors in subsection (2) in terminating the parent-child relationship, the court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child ....

C.H., the natural mother, contends that the State failed to prove by clear and convincing evidence that the above statutory requirements for terminating parental rights have been satisfied. In re F.M. (1991), 248 Mont. 358, 363, 811 P.2d 1263, 1266.

C.H. does not contest that J.J.C.H. and C.M.H. are youths in need of care. C.H. does argue that the District Court abused its discretion in terminating her parental rights because insufficient evidence existed to support the court’s findings that she failed to comply with the treatment plans and that her fitness was unlikely to change within a reasonable time. We disagree. Substantial credible evidence existed supporting the District Court’s determination.

Testimony elicited from Merry Richmond, a social worker from Family Services; Janie Hackert, a nurse from the Yellowstone County Health Department; and Dr. Richard Agosto, the clinical psychologist who evaluated C.H.; supports the District Court’s decision. The record reveals that these professionals participated in a program to help reunite C.H. with her two children and were qualified to testify regarding C.H.’s parenting abilities.

Merry Richmond testified that C.H. did not fully comply with the terms of the service treatment agreements which C.H. entered into with Family Services. Richmond commented on C.H.’s noncompliance as follows:

Q. So you are testifying that this natural mother has not complied with the terms of this agreement [approved by the court December 17, 1990]; correct?
A. Yes.
Q. What has she failed to do?
A. She failed to keep items that were potentially dangerous to the children out of reach. Her carpets weren’t vacuumed at visits all the time. She did not attend parenting classes. She did not demonstrate increased knowledge of parenting skills in order to protect and adequately care for her children, recognizing dangerous situations and hazards. And attending to both children’s needs without being distracted. Recognizing hunger cues. Not using baby talk around the children. Not being able to demonstrate successfully what she has learned.”

Janie Hackert testified that she met with C.H. approximately thirty times during her involvement with C.H. The purpose of these meetings was to teach C.H. parenting skills. The following testimony was elicited concerning C.H.’s success.

Q. Were there things you feel [C.H.] was not successful in implementing?
A. Yes.
Q. What are those things?
A. I feel that she was unsuccessful in being consistent in safety measures in her home. And I feel she was also inconsistent in providing activities for the children during visits, games, activities.
Q. What about cleanliness of her house?
A. That, again, was inconsistent to date.

Dr. Agosto testified as to his evaluation of C.H. He performed a series of tests on C.H. to assess her ability and knowledge of parenting; he concluded that C.H. could not effectively parent three children at one time. Dr. Agosto testified that he did not anticipate that C.H. would grow in the area of basic parenting skills. Based on the services C .H. has already received, Dr. Agosto surmised that it may be possible for C.H. to parent less than three children, but concluded the probability as low.

C.H. argues that she substantially complied with the first two service treatment agreements and that due to the birth of her third child, she did not have the opportunity to comply with the third service treatment agreement. C.H. also contends that any noncompliance with the first two agreements was minimal. However, partial compliance with a treatment plan is insufficient. In re H.R.B. (1989), 239 Mont. 387, 389, 780 P.2d 1139, 1140. The District Court properly weighed the evidence concerning C.H.’s failure to fully comply with the treatment plans. Substantial credible evidence existed to support the District Court’s findings.

Next, C.H. contends that the District Court’s finding that her unfitness as a parent is unlikely to change within a reasonable time is unsupported by substantial credible evidence. We disagree. The professionals involved in this case all testified that C.H.’s chances of becoming a capable parent were low. Additionally, the court considered a report from the Crittenton Home based on C.H.’s stay at the Home after the birth of her third child. The staff at the Crittenton Home found C.H. to be an incompetent parent even after participating in this structured residential parental training program. From this information, and after apparently giving considerable weight to subsections (2)(a) and (2)(g) of § 41-3-609, MCA, the court properly concluded that C.H. was incapable of becoming fit in a reasonable time.

Furthermore, the District Court was bound to give primary consideration to the physical, mental, and emotional conditions and needs of the children when determining that the mother is unfit and unlikely to change her conduct. Section 41-3-609(3), MCA. Best interests of the children is paramount and takes precedence over parental rights. In re J. W. (1988), 232 Mont. 46, 50, 757 P.2d 769, 771; quoting In re C.A.R. (1984), 214 Mont. 174, 182, 693 P.2d 1214, 1219.

In conclusion, we hold that the District Court did not err when it terminated C.H.’s parental rights. The record contains substantial credible evidence supporting the District Court’s conclusion that C.H. failed to fully comply with the treatment plans and that her lack of fitness as a parent is unlikely to change within a reasonable time.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HUNT, WEBER and McDONOUGH concur.


source: Caselaw Access Project

author: JUSTICE WEBER JUSTICE GRAY,

license: Public Domain

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. WILLIAM NELSON KOWALSKI, Defendant and Appellant.
    No. 91-236.
    Submitted on Briefs October 31, 1991.
    Decided March 5, 1992.
    49 St. Rep. 197.
    252 Mont. 166.
    827 P.2d 1253.

      For Appellant: Stephen J. Nardi, Sherlock & Nardi, Kalispell.
    For Respondent: Marc Racicot, Attorney General; Micheál S. Wellenstein, Assistant Attorney General, Helena; Scott B. Spencer, County Attorney, Libby.
   JUSTICE WEBER

delivered the Opinion of the Court.

Following jury trial in the Nineteenth Judicial District Court, Lincoln County, Montana, the defendant, William Kowalski (Kowalski) was convicted of two counts of felony incest in violation of § 45-5-507, MCA, for sexual contact with his daughters M.K. and C.K. Kowalski appeals. We affirm.

The determinative issues are restated as follows.

1. Did the court err in ruling that if Kowalski introduced letters M.K. had written, then it would allow the State to disclose circumstances surrounding the communication?

2. Did the court abuse its discretion by prohibiting Kowalski from using extrinsic evidence, on the issue of physical assault, to impeach C. K. ’s testimony?

3. Did the court abuse its discretion by prohibiting Kowalski from using extrinsic evidence on the issue of physical assault to impeach Bushfield’s testimony?

In April 1989, C.K moved from Missouri to Eureka, Montana to live with her father, William Kowalski, and her sister, M.K. M.K. and C.K. testified that after C.K. arrived, Kowalski would have the girls undress to their waist or place his hands under their clothing, and fondle their breasts. They further testified that Kowalski measured their breasts, recorded these measurements on a door frame in his bedroom, and commented on their shape and development. Additionally, Kowalski painted a star on C.K’s naked breast, and attempted to cast a mold of his daughters’ breasts with “plaster”.

The girls related this conduct to their brother Benjamin who came to Eureka in November 1989 to stay with M.K. and C.K. while Kowalski was in Belgium. After listening to the victims, observing them, and seeing the measurements on Kowalski’s door frame, Benjamin drove the victims to Missouri. There they reported Kowalski’s conduct to Missouri officials.

On February 7,1990, the State of Montana charged Kowalski with incest for repeated sexual contact with his daughters M.K. and C.K. from June 1989 through November 1989. M.K. and C.K. were 13 and 15 years old at the time. On July 11, 1990, pursuant to a plea agreement, Kowalski pled guilty to felony assault. The District Court accepted this plea on the condition that Kowalski complete a sex offender examination. Kowalski failed to complete the sex offender examination, thus the court allowed him to withdraw his guilty plea, and the case proceeded to trial. At trial Kowalski testified that he only measured the victims’ bustlines while they were fully clothed. Further, he stated that he painted a star on C.K’s breast as a joke, at the child’s insistence. Finally, Kowalski argued that the girls fabricated the story of sexual touching in order to escape his physical and emotional abuse. Kowalski testified that due to post traumatic stress, he would often hit and yell at his children.

I

Did the court err in ruling that if Kowalski introduced letters M.K. had written, then it would allow the State to disclose circumstances surrounding the communication?

M.K testified at trial that she was afraid of Kowalski. In cross-examination, Kowalski attempted to impeach M.K’s claim of fear and undermine her credibility by introducing letters M.K. sent to Kowalski from Missouri. M.K. sent these letters after the defendant pled guilty to felony assault.

The court ruled that if Kowalski introduced these letters, he would open the door for the State to explore circumstances surrounding the communication. At the time M.K. wrote to Kowalski she was in Missouri and he was in Montana. He had pled guilty to felony assault based on his sexual contact with the victims and was awaiting sentencing. Thus Kowalski posed no threat to M.K. or C.K. at the time his daughter wrote the letters. As a result of this ruling, Kowalski withdrew his request to introduce the letters.

Kowalski contends the court violated Rule 410, M.R.Evid., by ruling that the introduction of M.K’s letters required full disclosure of the facts underlying Kowalski’s prior plea. Under Rule 410, evidence of guilty pleas, later withdrawn, and statements made during pleading are inadmissable in criminal trials except for impeachment purposes. Kowalski relies on State v. Hanson (1981), 194 Mont. 197, 204, 633 P.2d 1202, 1207, where this Court citing Commission Comments stated:

[Rule 410] allows an accused to offer to plead guilty ... or to withdraw such plea without either action being used against him in any subsequent trial. This is intended... to allow highly prejudicial evidence to be excluded under considerations that the reasons for offering to plead or withdrawing pleas of guilty... would not be understood by a jury and would almost preclude a fair trial.

Kowalski contends the court’s ruling denied him a fair trial by forcing him to choose between effectively cross-examining M.K. and exposing the jury to highly prejudicial statements made dinring pleading.

The State contends that the trial court’s ruling was proper. In United States v. Martinez (2nd Cir. 1985), 775 F.2d 31, 37, the court allowed the prosecution to introduce prejudicial evidence to rehabilitate the credibility of a witness during re-direct. The court held:

... [I]t is well settled that a cross-examination attacking a witness’s credibility and character will open the door to redirect examination rehabilitating the witness. Evidence whose probative value might not be thought to outweigh its prejudicial effect if offered on direct examination may well be admitted during redirect examination “for the purpose of rebutting the false impression which resulted from ... cross examination.” [Citations omitted.]

We agree with the State and conclude that allowing evidence of guilty pleas under the Martinez analysis is consistent with Rule 410. Here, Kowalski intended to introduce the letters to impeach M.K. and attack her credibility. Had the court suppressed the circumstances surrounding the letters while allowing Kowalski to use the letters to impeach M.K., it would have misled the jury. We conclude the court properly ruled that if the letters were introduced, a full disclosure of the circumstances surrounding Kowalski’s guilty plea was necessary for the jury’s proper evaluation of the evidence.

We hold that the court correctly determined that if Kowalski impeached M.K. with letters she mailed to Kowalski, then the State could disclose the circumstances surrounding the guilty plea.

II

Did the court abuse its discretion by prohibiting Kowalski from using extrinsic evidence on the issue of physical assault to impeach C.K’s testimony?

At trial, C.K. testified that she was afraid of Kowalski, but he never struck her. Further, C.K. denied telling anyone that Kowalski had struck her. Subsequently, Sarah Bushfield, a friend of C.K., and Detective Vessel, of the Jefferson County, Missouri Sheriff’s Department, both offered opinion testimony that C.K. was truthful, without objection on the part of the defendant.

On cross-examination, Bushfield was asked whether C.K. said that Kowalski had struck her. Bushfield responded “no.” At that point, Kowalski attempted to attack C.K’s credibility with a prior out of court statement Bushfield made to officers during the investigation. Bushfield previously told officers that Kowalski had struck C.K. in the ribs. The State objected to Kowalski using extrinsic evidence to impeach C.K. on the collateral issue of physical abuse.

Later, during cross-examination of Detective Vessel, Kowalski once again attempted to impeach C.K. on the issue of physical abuse. Vessel was asked whether C.K. admitted being “hit” by Kowalski. The State again objected to Kowalski’s using extrinsic evidence to impeach C.K. on the collateral issue of physical abuse.

The court sustained both objections. It ruled that the issue of Kowalski’s physical abuse of the children was collateral to the issue of sexual abuse. Thus, Kowalski was improperly impeaching C.K. on a collateral issue. In each instance Kowalski submitted an offer of proof.

Admitting or refusing evidence lies within the sound discretion of the trial judge. State v. Rudolph (1989), 238 Mont. 135, 142, 777 P.2d 296, 301. Thus, the rulings of the District Court will be upheld unless Kowalski proves the court abused its discretion by refusing the testimony. Here we conclude the court did not abuse its discretion in excluding the contested testimony.

First, Kowalski contends the District Court should have admitted the extrinsic evidence to show C.K.’s bias and motive to fabricate the sexual assault. Here, the record reflects that the jury had overwhelming evidence from which to conclude that Kowalski physically abused his children. Kowalski testified that he slapped and yelled at the children. M.K. stated she was afraid of her father, and that he had hit her and C.K. Kowalski’s son, Benjamin, testified Kowalski hit and yelled at M.K., C.K. and himself. Benjamin’s wife Salina Echolt, testified Kowalski was violent with the children. Finally, although C.K. testified that her father did not hit her, she did testify that she was afraid of him and that he hit M.K

Given the amount of evidence indicating that Kowalski had previously ‘Tát” C.K, her testimony to the contrary is of little consequence. Clearly the jury had sufficient evidence to conclude that the girls had motive to fabricate the sexual fondling in order to escape the physical abuse. Accordingly, the court did not abuse its discretion in refusing to admit this testimony to show C.K’s bias and motive to fabricate.

Next, Kowalski contends that the testimony was properly admissible to attack C.K’s credibility. Here, under Rule 608(b), M.R.Evid., Kowalski is not allowed to introduce extrinsic evidence of specific instance of C.K’s conduct. Rule 608(b), M.R.Evid. states:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examinations of the witness ...

Under Rule 608(b), Kowalski could, at the court’s discretion, introduce C.K’s prior statements in the course of cross-examination of C.K. in order to attack her credibility. Here, Kowalski chose to introduce these statements through other witnesses instead of during his cross-examination of C.K. Thus, under Rule 608(b), the court did not abuse its discretion in excluding Kowalski’s questioning of Bushfield and Vessel.

Next, Kowalski contends the court should have admitted the evidence under Rule 613(b), M.R. Evid., which allows extrinsic evidence of a witness’s prior inconsistent statement. The State contends these statements regarding physical abuse were collateral to the charge of incest and the court correctly prohibited Kowalski from using extrinsic evidence of prior inconsistent statements to impeach C.K. on this collateral issue.

The State and- the trial court improperly addressed the issue of collateral matters. As stated in Cooper v. Rosston (1988), 232 Mont. 186, 756 P.2d 1125, the rule limiting impeachment of witnesses on collateral matters was abolished in favor of a relevancy analysis under Rules 401 and 403, M.R.Evid. Citing Commission comments, Cooper stated:

The Commission believes that the limitation of impeachment by Rule 401, defining relevant evidence as including impeaching evidence, and Rule 403, allowing the court to exclude relevant evidence if its probative value is outweighed by prejudice, confusion, waste of time, will allow the same result to be reached through a more flexible means than currently used with the collateral matters rule. Therefore, Section 93-401-25, R.C.N. 1947 [superseded], (to the extent that it is concerned with collateral matters) and case law stating the collateral matters rule are abolished in favor of the relevancy approach. (Emphasis supplied.)

Cooper, 232 Mont. at 191, 756 P.2d 1128. While the District Court applied the collateral matters rule instead of using the relevancy analysis, it did not abuse its discretion in excluding this evidence under Rule 401, M.R. Evid.

Rule 401, M.R.Evid., defines relevant evidence as evidence which tends to make the existence of any fact at issue more or less probable and may include evidence relating to a witness’s credibility. Rule 403, M.R.Evid., excludes relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.

In State v. Hammer (1988), 233 Mont. 101, 759 P.2d 979, this Court upheld the trial court’s decision to exclude credibility evidence using Rules 401 and 403, M.R.Evid. In that case, the defendant attempted to introduce evidence of an assault victim’s prior traffic offenses and misdemeanor possession charges. The Court held that: “the evidence in question does not tend to make any fact at issue in this action more or less probable than that fact would be without the evidence.” Rule 401, M.R.Evid. Hammer, 233 Mont. at 111, 759 P.2d at 985. While Hammer raised the issue of self-defense, the Court concluded this evidence failed to make the defendant’s assault more or less probable. Further, evidence of the victim’s criminal conduct did not reflect on the truthfulness of his testimony regarding the assault. Thus, although the nature of the victim’s prior crimes was not highly inflammatory, the probative value of the evidence did not exceed its prejudicial effect.

Similarly, in this case, we conclude that evidence of Kowalski striking C.K. fails to make it more or less probable that he had sexual contact with M.K. and C.K. Likewise, such evidence does not reflect on the credibility of C.K.’s testimony regarding the sexual contact. Thus we conclude the trial court did not abuse its discretion in excluding the evidence under a Rule 401, M.R.Evid., analysis.

In addition, while 16 years old at the time of trial, C.K. had a ’’borderline IQ“ and functioned at around an 11 or 12 year old level. This is an additional factor which the court could properly consider in exercising its discretion.

We hold that the District Court did not abuse its discretion by prohibiting Kowalski from using extrinsic evidence, on the issue of physical assault, to impeach C.K.

Ill

Did the court abuse its discretion by prohibiting Kowalski from using extrinsic evidence, on the issue of physical assault, to impeach Bushfield’s testimony?

Finally, Kowalski contends Bushfield’s prior inconsistent statement regarding Kowalski striking C.K. in the ribs, was properly admissible to attack Bushfield’s credibility. As with the previous issue, we point out that evidence of Kowalski’s physical abuse of C.K. does not make it more or less probable that he sexually abused the victims. Kowalski failed to prove the court abused its discretion in excluding the evidence. Thus, we hold the court did not abuse its discretion by prohibiting Kowalski from using extrinsic evidence, on the issue of physical assault to impeach Bushfield’s testimony.

Affirmed.

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

JUSTICE GRAY,

concurring in part and dissenting in part:

I concur in the opinion of the majority as to the first issue. I must respectfully dissent from that opinion on issue two, which relates to the important question of evidence impeaching the credibility of an alleged incest victim. The majority’s analysis is confused, at best, and legally flawed; the extent of the flaw is apparent even in the majority’s statement of the issues, where the evidence at issue is characterized as “extrinsic evidence, on the issue of physical assault,...” In fact, the issue is whether “extrinsic evidence of prior inconsistent statements of a witness” is admissible under Rule 613(b), M.R.Evid. The majority opinion in this case will create unnecessary confusion and uncertainty for attorneys practicing on both sides of the minefield commonly called criminal law, as well as for the district courts of this state.

This case involves two charges of felony incest against Kowalski for sexual conduct with his daughters M.K. and C.K. My disagreement with the majority is only as to the evidence relating to the charge of incest with daughter C.K. As is not uncommon in sex offense cases of all types, this case boils down to the credibility of the victim and the credibility of the defendant. The importance of the credibility issue is clear from the fact that the State put on several witnesses to opine, without objection, as to C.K.’s truthfulness.

During her testimony, C.K. denied that her father had ever struck her. She also denied ever telling anyone that he had done so. The defense then sought to impeach C.K’s credibility by inquiring of the State witnesses who testified as to C.K.’s truthfulness regarding certain statements C.K. made to them stating that her father had struck her, statements clearly and unequivocally inconsistent with her testimony at trial. As the majority notes, the State objected to Kowalski using extrinsic evidence to impeach C.K. on the collateral issue of physical abuse.

The court sustained the State’s objections, ruling that the physical abuse issue was collateral to the issue of sexual abuse and, therefore, that the impeachment was improper. The majority affirms the District Court on other grounds, purportedly rejecting the “collateral matters rule” and premising its affirmance on Rule 401, M.R. Evid. It is my view that the majority herein did not altogether succeed in divorcing itself from the collateral matters analysis. As a result, the majority never addresses the dispositive issue, whether the statements were Rule 613 prior inconsistent statements admissible for impeachment of C.K. Furthermore, the majority concludes that the evidence was properly excludible under an erroneous Rule 401 relevancy analysis, relying on an entirely inapposite case. The flaws in the majority approach are addressed separately below.

The majority first raises Kowalski’s contention that the “extrinsic evidence” relating to physical abuse was admissible to show C.K’s bias and motive to fabricate the sexual assault. This argument not having been made at the trial, it simply should not be considered by this Court on appeal; the majority should have so stated and moved on. However, rather than take that clear, direct and correct approach to the issue, the majority sets off at some length to insert the question of physical abuse into its opinion. It then cavalierly concludes that C.K’s testimony that her father did not strike her “is of little consequence.” This is the first clear indication that the majority has totally missed the mark in this case; the ’’consequence" of any part of a victim’s testimony is not for this Court to weigh, but for the jury to consider. Further, this case has to do with credibility and with impeachment evidence. It does not have to do with whether or not physical abuse occurred, but with the consistency and, as a result, the credibility of the statements of the victim C.K.

Next, the majority addresses Kowalski’s argument that the testimony was admissible under Rule 608(b), M.R. Evid. Since Kowalski concedes in his brief that the evidence was not admissible under Rule 608(b), this issue should not have been addressed.

The majority finally seems headed in the right direction when it raises Kowalski’s contention that the evidence was admissible under Rule 613(b), M.R.Evid., which allows extrinsic evidence of a witness’ prior inconsistent statement. Unfortunately, this is the last mention the majority makes of Rule 613(b); the Rule, and Kowalski’s entire argument on prior inconsistent statements, are never again taken up by the majority. Concluding correctly that both the State and the trial court improperly addressed the issue of “collateral matters” and that the ’’collateral matters rule" has been abolished in favor of a relevancy approach, the Court proceeds to make a confusing and incorrect application of Rule 401, M.R.Evid., and the Hammer case. It never comes back to the Rule 613 argument, apparently unable to difierentiate between the concepts of extrinsic evidence, collateral matters, and prior inconsistent statements.

An appropriate analysis under Rules 401 through 403 would conclude that the testimony at issue in this case was relevant and admissible. As the majority notes, relevant evidence “may include evidence bearing upon the credibility of a witness ....” Rule 401, M.R. Evid. Indeed, in a trial of the type before us, credibility is often the crucial determination to be made by the jury. It is quintessentially clear to me that the testimony at issue, relating to statements the victim made to the very witnesses who supported her truthfulness, and directly at odds with testimony she gave at trial, is relevant. Therefore, the evidence is admissible pursuant to Rule 402, M.R.Evid.

Rule 403 cautions, of course, that even relevant evidence may be excluded if its probative value is outweighed by one of the considerations mentioned in the Rule. None of those considerations is present here and, to its credit, the majority does not suggest otherwise. In any event, given the overwhelming importance of credibility in this case and, therefore, of other statements made by the victim which conflicted with her trial testimony, it is beyond me how the probative value could seriously be suggested to be outweighed. I conclude that the evidence was relevant and admissible under Rules 401 through 403, M.R.Evid.

Further, the majority’s reliance on Hammer to buttress its relevancy analysis is misplaced. In Hammer, the excluded evidence was of an assault victim’s prior traffic and misdemeanor offenses; it was offered both to impeach the victim’s credibility and, in conjunction with a self-defense theory, to show the victim’s violent tendencies. We held in Hammer, and rightly so, that the evidence was not relevant for either purpose; it did not reflect on the truthfulness of the witness and did not relate in any way to the probability of the assault against the victim having taken place. For reasons unclear to me, the Court went on in Hammer to reference Rule 403’s balancing test and conclude that the prejudicial effect of the evidence outweighed any probative value.

If the case before us were of the Hammer variety, I would agree with the majority’s analysis. The evidence at issue here, however, is not even superficially related to the type properly excluded in Hammer. Here we are faced with statements made by the victim which directly conflict with her testimony at trial.

The majority completes its analysis of the issue by re-evidencing its inability to divorce itself from the “collateral matters” theory or to focus on the question of inconsistent statements by concluding that evidence of Kowalski striking C.K. “fails to make it more or less probable that he had sexual contact with ... C.K.” The evidence was not offered to prove that the physical contact occurred; that was not the “fact at issue” under Rule 401, M.R. Evid. The evidence was offered to impeach the credibility of the victim, as specifically authorized by Rule 401.

Under Rule 613(b), M.R.Evid., extrinsic evidence of a prior inconsistent statement of a witness is admissible if certain procedural safeguards are met. It is clear to me that the evidence Kowalski attempted to introduce was, indeed, extrinsic evidence of prior inconsistent statements by C.K. to the State’s two witnesses. The statements to them that her father had struck her were undeniably inconsistent with her sworn testimony at trial that he had never struck her; they were also inconsistent with her testimony denying that she ever told anyone that he hit her. As such, they constituted evidence going directly to C.K’s overall truthfulness. The evidence was “extrinsic” in that Kowalski wanted to introduce it through the witnesses to whom the inconsistent statements had been made, rather than through the victim herself. The Rule specifically allows for extrinsic evidence; the statements were both “prior” in time to the testimony given at trial by the victim and “inconsistent” with that testimony. I would hold that the evidence was admissible under Rule 613(b), reverse and remand.

JUSTICE TRIEWEILER joins in the foregoing concurring and dissenting opinion of JUSTICE GRAY.


author: JUSTICE HUNT

text:
    JOHN E. BACHE, Plaintiff and Appellant, v. JAMES GILDEN, Defendant and Respondent.
    No. 91-333.
    Submitted on Briefs October 24, 1991.
    Decided March 5, 1992.
    49 St.Rep. 203.
    252 Mont. 178.
    827 P.2d 817.

      For Appellant: Thomas E. Boland, Attorney at Law, Great Falls.
    For Respondent: Richard DeJana, Attorney at Law, Kalispell.
   JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiff brought suit in the Nineteenth Judicial District Court of the State of Montana, Lincoln County, for damages suffered in a motor vehicle accident. Following a jury trial, a verdict for the defendant was returned by the jury and a judgment was entered by the District Court. Plaintiff appeals from the jury verdict and judgment entered by the District Court. We reverse.

Appellant raises three issues on appeal:

1. Did the District Court err in allowing Richard Goacher to testify at trial, even though he had not been listed as a witness?

2. Was it reversible error for the District Court to allow respondent’s Exhibit C, a survey of the site of the accident made by Richard Goacher, into evidence when it was not disclosed within the time required by the pretrial order and appellant did not receive a copy of the exhibit until about a week prior to trial and could not depose the author of the exhibit?

3. Did the District Court err in allowing William Crismore to testify as an expert, even though he had not been listed as an expert in either the respondent’s discovery responses or in the pretrial order?

This suit arose out of a motor vehicle accident which occurred on November 29, 1989. Appellant John E. Bache was driving a dump truck filled with gravel on a logging road outside of Libby, Montana. Respondent James Gilden was driving an empty dump truck, travelling in the opposite direction on the same road. The two vehicles met on a sharp and narrow curve in the logging road. The parties agreed that the two vehicles met “at a point in the road where there was, essentially, one lane of travel.” The sharp and narrow curve in the road was a right-hand curve facing appellant, and a left-hand curve facing respondent. There was a vertical drop of about 15 feet on appellant’s right-hand side and a vertical drop of about 5 feet on respondent’s right-hand side. Both drivers were travelling down an incline into the corner. The condition of the road at the time of the accident was snowpacked and icy. The accident occurred around dusk, but it was not yet dark.

Shortly before the two vehicles would have collided, appellant drove his truck over the right-hand bank in order to avoid a head-on collision with respondent’s truck. The two trucks did not collide and respondent’s truck remained on the logging road. Appellant contends that respondent was negligent in his operation of his truck and that respondent had an “avenue of escape,” which, if taken, would have allowed the two trucks to pass without incident. Appellant brought suit alleging that as a result of respondent’s negligence he suffered personal injuries and other damages. Respondent contended he had no “avenue of escape” and that the least dangerous course of action available would have been to allow a low speed head-on collision to occur. Appellant appeals from a jury verdict in favor of the defense.

I and II

Issues 1 and 2 are interrelated and will be discussed together.

Did the District Court err in allowing Richard Goacher to testify at trial, even though he had not been listed as a witness?

Was it reversible error for the District Court to allow respondent’s Exhibit C, a survey of the site of the accident made by Richard Goacher, into evidence when it was not disclosed within the time required by the pretrial order and appellant did not receive a copy of the exhibit until about a week prior to trial and could not depose the author of the exhibit?

In September 1990, appellant sent interrogatories to respondent which included requests for the names of each witness respondent expected to call at trial. Respondent’s answer included the names of several witnesses and also indicated that the list was not complete and would be supplemented prior to trial. Similarly, in response to a request for exhibits, respondent listed several exhibits but indicated that the list was not final and would be supplemented prior to trial.

Pursuant to the District Court’s scheduling order of November 26, 1990, a list of all witnesses and exhibits was to be exchanged by the parties no later than February 1, 1991. Additionally, the scheduling order provided that all discovery should be completed by February 15,1991. On February 7,1991, appellant received a fax from respondent which contained a list of respondent’s witnesses. Richard Goacher was not listed. An individual identified as Paul Stokes was listed as a witness to provide foundation for the survey of the accident scene. There was no copy of the exhibit in question — the survey of the accident scene. Respondent reserved the right to call additional witnesses as necessary for foundation. Appellant requested the opportunity to depose Paul Stokes.

The final pretrial conference was held on March 4, 1991. The pretrial order did not list Richard Goacher as a witness. The pretrial order also provided for some additional discovery. Appellant was to depose respondent’s witness Paul Stokes. However, a week prior to the start of the trial, appellant learned from Paul Stokes that it was Richard Goacher who had prepared the survey. It was at this time that appellant first received a copy of the survey. Appellant was unable to depose Goacher prior to the start of the trial on March 19, 1991.

At trial, appellant objected to Goacher being allowed to testify on the grounds of surprise and prejudice, as he had not been fisted as a witness on the pretrial order, nor identified until shortly before trial. Appellant also objected to the admission into evidence of the survey on the grounds that the survey did not appear to be a reasonable resemblance of the condition of the road at the time of the accident. The District Court overruled these objections. Appellant did not request a continuance.

Rulings on the admissibility of evidence and the control of discovery activities are within the discretion of the district court. Cooper v. Rosston (1988), 232 Mont. 186, 756 P.2d 1125. Absent an abuse of discretion this Court will not reverse a district court’s ruling on the admissibility of evidence. Cooper, 756 P.2d at 1127.

The width and configuration of the road at and near the accident site were important factors in appellant’s case. The survey by Goacher depicting the width and configuration of the road related to these factors. Appellant contends the trial court abused its discretion when it allowed Goacher to testify over objection, even though Goacher was not listed as a witness in the pretrial order, his identity was not discovered by appellant until a week before trial, and appellant was unable to depose the witness. This Court has stated in the past that “[t]he purpose of the pretrial order is to prevent surprise, simplify issues and permit counsel to prepare for trial on the basis of the pretrial order.” Whitehawk v. Clark (1989), 238 Mont. 14, 19, 776 P.2d 484, 487 (quoting from Workman v. McIntyre (1980), 190 Mont. 5, 12, 617 P. 2d 1281, 1285). Respondent contends that disclosure of Goacher was not necessary because the pretrial order stated that respondent could call “any witnesses needed for foundation.” However, respondent indicated that Paul Stokes was to testify concerning the survey and would give the necessary foundation testimony to allow it to be introduced into evidence. Respondent should have communicated to appellant that it would be Goacher and not Stokes who would offer this testimony. It was not until shortly before trial that appellant discovered that Goacher had made the survey and would be testifying. This information was not revealed in a timely fashion and appellant was not given the opportunity to depose the witness. This procedure resulted in both surprise and prejudice to appellant, and as this Court has previously noted, such “tactics are contrary to the letter and spirit of all pretrial discovery ....” Krueger v. General Motors (1989), 240 Mont. 266, 273, 783 P.2d 1340, 1345.

In Sikorski v. Olin (1977), 174 Mont. 107, 568 P.2d 571, this Court stated that a failure to request a continuance at trial when first presented with surprise or prejudicial evidence was a waiver of the right to claim error on appeal. This principle was again stated in the case of Barrett v. Asarco, Inc. (1988), 234 Mont. 229, 763 P.2d 27. To the extent that Sikorski and Barrett are inconsistent with this opinion, they are overruled.

We hold that allowing Goacher to testify was an abuse of discretion, and therefore, reverse and remand this case for a new trial.

While not essential to the outcome of this case, we will briefly address the remaining issues to the extent such discussion is necessary for guidance on retrial.

At trial, appellant objected to the introduction of the survey on the basis that it did not appear to be a reasonable resemblance of the condition of the road at the time of the accident. Then on appeal, appellant changed his reliance to the argument that the survey was a surprise and prejudicial. This Court will only consider on appeal objections made at trial that are timely, specific, and based on the correct grounds. Kizer v. Semitool, Inc. (Mont. 1991), [251 Mont. 199,] 824 P.2d 229, 48 St.Rep. 1115. However, in light of our holding above concerning Goacher’s testimony, we need not consider, even for purposes of guidance upon retrial, the question of whether appellant’s objection at trial was sufficiently specific or based on the appropriate grounds in this instance.

III

Did the District Court err in allowing William Crismore to testify as an expert, even though he had not been listed as an expert in either the respondent’s discovery responses or in the pretrial order?

In the present case, a review of the record indicates that Crismore’s testimony was not expert testimony. Crismore testified only to those matters of which he had personal knowledge. To the extent that his testimony might be considered opinion testimony, it is still admissible under these circumstances pursuant to Rule 701, M.R.Evid., which provides that:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.

The District Court did not abuse its discretion in allowing Crismore to testify.

Based upon our holding that there was abuse of discretion in allowing Goacher to testify over appellant’s objection of surprise and prejudice, we reverse and remand this case to the District Court for a new trial.

JUSTICES GRAY, TRIEWEILER, McDONOUGH and WEBER concur.


author: CHIEF JUSTICE TURNAGE JUSTICE TRIEWEILER JUSTICE McDONOUGH

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. COREY HUEBNER, Defendant and Appellant.
    No. 90-472.
    Submitted February 11, 1992.
    Decided March 9, 1992.
    49 St.Rep. 210.
    252 Mont. 184.
    827 P.2d 1260.

      For Appellant: Samuel M. Warren argued, Worden, Thane & Haines, Missoula.
    For Respondent: Miare Racicot, Attorney General, and Jennifer Anders argued, Assistant Attorney General, Helena; Loren Tucker, County Attorney, and Mark David Hoffman, Deputy, Virginia City.
    For Amicus Curiae: Michael Donahoe, Helena; William Boggs argued, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Corey Huebner was convicted by a jury in the District Court of the Fifth Judicial District, Madison County, of the misdemeanor charge of wasting game in violation of § 87-3-102, MCA (1989). He appeals. We affirm.

The following issues decide this appeal:

1. Is § 87-3-102, MCA (1989), unconstitutionally vague or overbroad?

2. Did the District Court err by failing to instruct the jury as to criminal intent?

3. Did the District Court impose a penalty contrary to law?

Because of our holdings on these three issues, it is not necessary to discuss the remaining issues raised.

Huebner shot a mountain goat in the Avalanche Lake area of Madison County in the early evening of September 15,1989. According to him, by the time he was able to retrieve the animal the next day, the meat was not fit for human consumption. This was disputed by other hunters in the area, who testified at trial as witnesses for the State. Huebner took only the head, horns, and cape of the animal and left the rest. He was charged with violation of § 87-3-102, MCA (1989):

Waste of fish, or game. It shall be unlawful and a misdemeanor for any person responsible for the death of any game animal of this state, excepting grizzly, black, and brown bear and mountain lion, to detach or remove from the carcass only the head, hide, antlers, tusks, or teeth or any or all of aforesaid parts or to waste any part of any game animal, game bird, or game fish suitable for food or to abandon the carcass of any game animal in the field[.]

After Huebner was tried and convicted by a jury in Madison County Justice Court, he appealed to District Court. A de novo jury trial which began on July 17, 1990, again resulted in a verdict of guilty. Huebner was ordered to serve six months in the Madison County jail, which sentence was suspended upon payment of a $750 fine plus $1,312 in court costs and a $10 surcharge. His hunting and fishing privileges were suspended for thirty months and he was ordered to forfeit the cape and horns of the goat.

I

Is § 87-3-102, MCA (1989), unconstitutionally vague or overbroad?

Astatute is unconstitutionally vague if it fails to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he or she may act in accordance therewith. United States v. Powell (1975), 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228. Huebner contends that § 87-3-102, MCA (1989), is unconstitutionally vague because it does not clearly set forth the conduct which is prohibited.

We disagree. Section 87-3-102, MCA (1989), establishes that the wasting of game meat other than grizzly, brown, or black bear or mountain lion is illegal. A person commits “waste” by doing any of the following: (1) removing only the head, hide, antlers, tusks, or teeth of any game animal other than the three trophy animals listed; (2) wasting any part of any game animal, bird, or fish, other than the three trophy animals listed, which is suitable for food; or (3) abandoning in the field the carcass of any game animal other than the three trophy animals listed. The statute gives a person of ordinary intelligence reasonable notice of what is prohibited. We hold that it is not unconstitutionally vague.

Huebner also argues that the statute is unconstitutionally over-broad because it prohibits otherwise legal activities of any hunter or taxidermist who removes specified body parts at any time. This argument is without merit. Under the statute, it is not the removal of the horns, head, or cape that is illegal, but the act of removing only those body parts, without utilizing the rest of the animal. We hold that § 87-3-102, MCA (1989), is not unconstitutionally overbroad.

II

Did the District Court err by failing to instruct the jury as to criminal intent?

Huebner contends that criminal intent is an essential element of the crime of wasting game and that therefore the District Court erred in not instructing the jury on the necessity of a culpable state of mind. He asserts two theories in support of his position.

First, he argues that despite the lack of a mental state requirement in § 87-3-102, MCA (1989), the requirement must be implied because the statute does not meet the requirements for an absolute liability offense. An absolute liability offense is one in which the actor’s intent is irrelevant since it is the act itself which constitutes the offense. State v. McDole (1987), 226 Mont. 169, 174, 734P.2d 683, 686. Section 45-2-104, MCA, provides:

A person may be guilty of an offense without having, as to each element thereof, one of the mental states described in subsections (33), (37), and (58) of 45-2-101, only if the offense is punishable by a fine not exceeding $500 or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described. [Emphasis added.]

Huebner contends that since the offense of wasting game meat is punishable by a fine that exceeds $500, the offense may not be classed as an absolute liability offense.

Section 45-2-104, MCA, includes two disjunctive requirements for an absolute liability offense. Either requirement can support the elimination of the intent element. We conclude that the second requirement has been met.

To ascertain legislative intent, we look to the language employed and the apparent purpose subserved. State v. Austin (1985), 217 Mont. 265, 268, 704 P.2d 55, 57. The statute prohibiting a person from shooting a game animal and abandoning the meat, or as in this case, removing only those parts suitable for a trophy mount, is obviously intended to preserve game resources for the benefit of the public. Numerous Montana cases have recognized the State’s duty to protect public wildlife resources through regulations designed for that purpose. E.g., State v. Jack (1975), 167 Mont. 456, 539 P.2d 726. Hunters are an identifiable group of persons exercising their right to utilize the State’s game resources for food and other purposes. They are responsible for knowing the laws pertaining to their sport. We hold that § 87-3-102, MCA(1989), indicates a legislative purpose to impose absolute liability for wasting game meat other than grizzly, brown, or black bear, or mountain lion. Huebner’s argument that § 87-3-102, MCA (1989), does not fit the statutory requirements of an absolute liability offense therefore fails.

Huebner’s second theory is that all game violations under Title 87, MCA, require proof of mental state, under Austin. That was not this Court’s holding in Austin. In that case, this Court held that the spotlighting statute, § 87-3-122, MCA, was unconstitutional because, while it prohibited “spotlighting” in general, it allowed exceptions for landowners, lessees, or their agents which would permit arbitrary and irrational enforcement by law enforcement officers. Austin, 704 P.2d at 59. It has not been argued that § 87-3-102, MCA (1989), contains arbitrary exceptions which render it unconstitutional. Therefore, Austin’s analysis does not apply. We hold that the District Court did not err by failing to instruct the jury on criminal intent.

III

Did the District Court impose a penalty contrary to law?

In addition to a fine and a suspended jail term, the District Court imposed a penalty of forfeiture:

The defendant, Corey Huebner, shall forfeit to the State of Montana (Department of Fish, Wildlife and Parks) the cape and horns of the mountain goat which he legally killed, but a part of which he was convicted of wasting contrary to the cited statute.

Huebner argues that only if the mountain goat was killed illegally may the District Court impose a forfeiture penalty.

Section 87-1-506, MCA, provides:

Enforcement powers of wardens. A warden may:
(4) seize game, fish, game birds, and fur-bearing animals and any parts of them taken or possessed in violation of the law or the rules of the department!.]

While it is true that Huebner killed the mountain goat legally, there is no question that he violated the law in the manner in which he took only the head, horns, and cape and left the rest of the animal. Having failed to comply with the statutory requirement that he not waste the meat, Huebner is subject to the game warden’s authority under § 87-1-506(4), MCA, to seize any parts of the animal. We hold that the District Court did not impose a penalty contrary to law.

As to the remaining issues raised by Huebner, we conclude that, under the circumstances of this case, our holdings on Issues I and II render them moot. Huebner took the stand in his own defense at trial. He admitted that he took only the hide, horns, and cape of the mountain goat, leaving the rest in the field. His defense was based on his position that the meat of the animal was no longer suitable for food by the time he was able to reach it the morning after he shot it.

We have determined under Issue I that § 87-3-102, MCA (1989), constitutionally prohibits the taking from the carcass of a game animal only the head, hide, antlers, tusks, or teeth, and abandoning the remainder of the carcass in the field as Huebner, by his own testimony, did in this case. Under Issue II we held that there is no mental state required for violation of § 87-3-102, MCA (1989). We conclude that Huebner’s own testimony established all of the elements of the offense with which he was charged.

By his own admission, Huebner did not raise at trial the issues he argues on appeal concerning the oral instruction and absence of written instruction to the jury on proof beyond a reasonable doubt and the absence of instruction on the presumption of innocence. We conclude that because Huebner’s own testimony established all of the elements of the offense with which he was charged, those issues, as well as the issues concerning the unconstitutionality of the limits on appellate review in § 46-20-701(2), MCA, and references to his exercise of Fifth Amendment rights, could not have resulted in any prejudice to him.

Error in giving or refusing instructions will not necessarily justify a reversal, when the evidence of the defendant’s guilt is so clear and convincing the jury could not reasonably have found him not guilty.

People v. Genovese (Ill. 1978), 382 N.E.2d 872, cert. denied 444 U.S. 848, 100 S.Ct. 86, 62 L.Ed. 2d 56. “No cause shall be reversed by reason of any error committed by the trial court against the appellant unless the record shows that the error was prejudicial.” Section 46-20-701(1), MCA. (The constitutionality of that restriction on appellate review is not challenged.) Although in a different factual situation the other issues raised by Huebner may have merit, in this case they are immaterial.

Affirmed.

JUSTICES HARRISON, HUNT, WEBER and the HONORABLE THOMAS C. HONZEL (District Judge, sitting in place of JUSTICE GRAY) concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the opinion of the majority.

Had the defendant requested an instruction on the burden of proof, and had it been refused, I would consider that refusal to be reversible error. Likewise, had the defendant unsuccessfully requested an instruction to the jury on his presumption of innocence, I would consider that reversible error. However, in this case, the burden of proof and presumption of innocence were totally irrelevant to the defendant’s theory of defense. The conduct he was accused of was conceded. He simply disagreed that it was a violation of the statute he was accused of violating.

We do not have to rely on § 46-20-701(2), MCA, for the time honored principle that a party cannot raise on appeal those issues which it did not raise at the trial court level. However, the dissent contends that no trial court objection is necessary because the District Court’s failure to instruct on the presumption of innocence is plain error and in violation of both the United States and Montana Constitutions. I would direct the dissent to the United States Supreme Court’s decision in Kentucky v. Whorton (1979), 441 U.S. 786, 60 L.Ed.2d 640, 99 S.Ct. 2088, where they held that failure to give such an instruction is not even always error.

In the Whorton case, the defendant actually requested that the jury be instructed on the presumption of defendant’s innocence. That instruction was refused by the trial court and defendant was found guilty of numerous counts of robbery and other crimes. On appeal, he argued, as the dissent contends, that the refusal to give such an instruction denied due process in violation of the Fourteenth Amendment of the United States Constitution. In rejecting the defendant’s argument on appeal, the Supreme Court held that:

In short, the failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution. Under Taylor [v. Kentucky (1978), 436 U.S. 478, 56 L.Ed.2d 468, 98 S.Ct. 1930), such a failure must be evaluated in light of the totality of the circumstances — including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors — to determine whether the defendant received a constitutionally fair trial.
The Kentucky Supreme Court thus erred in interpreting Taylor to hold that the Due Process Clause of the Fourteenth Amendment absolutely requires that an instruction on the presumption of innocence must be given in every criminal case. The court’s inquiry should have been directed to a determination of whether the failure to give such an instruction in the present case deprived the respondent of due process of law in light of the totality of the circumstances.

Whorton, 441 U.S. at 789-90, 60 L.Ed.2d at 643-44, 99 S.Ct. at 2090. I conclude that under the totality of the circumstances in this case, the District Court’s failure to give the presumption of innocence instruction did not prejudice the defendant and did not violate due process. If under the Whorton decision, the failure to give such an instruction is not, under every circumstance, reversible error even when it is requested, failure to give such an instruction certainly does not rise to the level of plain error when it has not been requested.

Furthermore, I find no prejudice from the District Court’s reference to “preponderance of the evidence” in the context of its discussion on circumstantial evidence. The purpose of that discussion was not to explain to the jury the degree of proof required to convict the defendant. The purpose of that discussion was to point out to the jury that circumstantial evidence was as worthy of consideration as direct evidence. The phrases “preponderance of the evidence” and “proof beyond a reasonable doubt” are meaningless without the usual instructions to the jury explaining their meaning. No such instructions were given in this case, and the terms as used were neutral in terms of any impact they may have had on the jury. Therefore, while I agree that if the defendant had requested an instruction on the State’s burden of proof he would have been entitled to one, I cannot conclude under the circumstances in this case that he was so severely prejudiced by the failure to give one that the failure to do so violated his right to due process and therefore, rises to the level of plain error. For these reasons, I concur with the opinion of the majority.

JUSTICE McDONOUGH

dissenting:

I would reverse and remand for a new trial. The defendant was deprived of his right to due process in violation of Section 17 of Article II of the Constitution of the State of Montana 1972, and of the Fourteenth Amendment to the United States Constitution.

At the very least, the trial court issued conflicting instructions on the burden of the State to prove defendant’s guilt beyond a reasonable doubt. It also failed to give any instruction on the presumption of innocence. Even though the defendant testified at trial, it is the function of the jury to ultimately render a verdict of guilty or not guilty under proper instructions.

Section 26-1-403, MCA (1989), provides that in criminal cases, the court must instruct the jury that guilt must be proven beyond a reasonable doubt. At the instruction settlement conference the State submitted five proposed instructions. One of those instructions covered the defendant’s presumption of innocence; that it remains with him throughout the trial; and that it is not overcome unless the jury is convinced beyond a reasonable doubt that the defendant is guilty.

The court stated it would give its written composite Instruction No. 1. At this point the State withdrew its proposed first five instructions. The court then stated it would give the State’s sixth instruction which was a recitation of the statute that the defendant was charged with violating. This recitation was eventually given as Instruction No. 2. The defense offered only one instruction which is not relevant to this discussion, and the defense did not in any way object to the court’s composite Instruction No. 1.

The District Court read its written Instructions No. 1 and 2 to the jury, and then stated:

THE COURT: The State of Montana must prove the elements of this charged offense to your satisfaction beyond any — beyond a reasonable doubt. And another matter, when you go to the jury room, you will select one of yourselves as the foreman or foreperson. And they’ll take charge of your discussions and you will discuss the matter.
I’ve given you a verdict form, which will be in this little envelope, which you will have with you along with a copy of the instructions. And remember, this being a criminal case, all six of you must agree on the verdict. Now, I’m going to recognize the State for closing argument.

No where in the court’s written instructions is there an instruction covering the presumption of innocence. As to the burden of proof the only mention is as follows:

Now some law on evidence and witnesses.
There are, generally speaking, two types of evidence from which a jury may properly find the truth as to the facts of a case. One is direct evidence — such as the testimony of an eyewitness. The other is indirect or circumstantial evidence — the proof of a chain of circumstances pointing to the existence or non-existence of certain facts.
As a general rule, the law makes no distinction between direct and circumstantial evidence, but simply requires that the jury find the facts in accordance with the preponderance of all the evidence in the case, both direct and circumstantial.

The oral instruction stated that the elements of the charged offense must be proven beyond a reasonable doubt. It is in conflict with that part of the court’s written Instruction No. 1 that states that the law simply requires the jury to find the facts in accordance with the preponderance of all the evidence in the case. Nothing could be more contradictory as to the burden of proof. The general rule is that contradictory instructions are sufficient to reverse the judgment. State v. Sloan, (1899) 22 Mont. 293, 56 P. 364; State v. Keerl, (1904) 29 Mont. 508, 75 P. 362; and State v. Fuller, (1906) 34 Mont. 12, 85 P. 369. This rule should be applied in this case.

If the jury remembered the oral instructions in its deliberation and considered it along with the written instructions, it would be impossible to tell which one the jury applied to the evidence. They could assume both were correct and pick one. If they applied the written one, it would clearly be error. The giving of the preponderance instruction or allowing the jury to select between the two is erroneous and conflicting. Given this clear error, a discussion of the emphatic effect of the clearly erroneous instruction being in writing and the other partially correct instruction being oral is not necessary.

The failure of the court to properly instruct on the presumption of innocence and the burden on the State to prove the defendant guilty beyond a reasonable doubt is clear error and violates due process. The requirement of the court to instruct on the presumption of innocence and the burden of proof is fundamental in our criminal justice system. If it is not given, even though the defendant did not object, the judgment is reversible. As stated by Justice Brennen in the opinion In re Winship, 397 U.S. 358, 363:

The reasonable-doubt standard plays a vital role in the American scheme of criminal procedure. It is a prime instrument for reducing the risk of convictions resting on factual error. The standard provides concrete substance for the presumption of innocence — that bedrock “axiomatic and elementar/’ principle whose “enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States, supra, at 453. As the dissenters in the New York Court of Appeals observed, and we agree, “a person accused of a crime ... would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case.” 24 N.Y. 2d at 205, 247 N.E. 2d at 259.
The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction. Accordingly, a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt. As we said in Speiser v. Randall, supra, at 525-526: “There is always in litigation a margin of error, representing error in fact finding, which both parties must take into account. Where one party has at stake an interest of transcending value — as a criminal defendant his liberty — this margin of error is reduced as to him by the process of placing on the other party the burden of... persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of... convincing the factfinder of his guilt.” To this end, the reasonable-doubt standard is indispensable, for it “impresses on the trier of fact the necessity of reaching a subjective state of certitude of the facts in issue.” Dorsen & Rezneck, In Re Gault and the Future of Juvenile Law, 1 Family Law Quarterly, No. 4, pp. 1, 26 (1967).
Moreover, use of the reasonable-doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with utmost certainty.
Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

This Court has expanded on this doctrine. In State v. Harrison, 23 Mont. 79, 57 R 647, this Court held that in addition to an instruction on reasonable doubt there must also be an instruction on the presumption of innocence. See also State v. Williams (1979), 184 Mont. 111, 601 P.2d 1194. Harrison quotes Justice White in Coffin v. U.S., 156 U.S. 432, 15 S.Ct. 394, as follows:

The fact that the presumption of innocence is recognized as a presumption of law, and is characterized by the civilians as a presumptio juris, demonstrates that it is evidence in favor of the accused; for, in all systems of law, legal presumptions are treated as evidence giving rise to resulting proof to the full extent of their legal efficacy. Concluding, then, that the presumption of innocence is evidence in favor of the accused introduced by the law in his behalf, let us consider what is “reasonable doubt.” It is of necessity the condition of mind produced by the proof resulting from the evidence in the cause. It is a result of the proof, not the proof itself; whereas the presumption of innocence is one of the instruments of proof, going to bring about the proof, from which reasonable doubt arises; thus, one is a cause, the other an effect. To say that the one is the equivalent of the other is therefore to say that legal evidence can be excluded from the jury, and that such exclusion may be cured by instructing them correctly in regard to the method by which they are required to reach their conclusion upon the proof actually before them; in other words, that the exclusion of an important element of proof can be justified by correctly instructing as to the proof admitted. The evolution of the principle of the presumption of innocence, and its resultant, the doctrine of reasonable doubt, makes more apparent the correctness of these views, and indicates the necessity of enforcing the one, in order that the other may continue to exist. Whilst Rome and the medievalists taught that, wherever doubt existed in a criminal case, acquittal must follow, the expounders of the common law, in their devotion to human liberty and individual rights, traced this doctrine of doubt to its true origin, — the presumption of innocence, — and rested it upon this enduring basis. The inevitable tendency to obscure the results of a truth, when the truth itself is forgotten or ignored, admonishes that the protection of so vital and fundamental a principle as the presumption of innocence be not denied, when requested, to any one accused of crime.

In the case before us, no instruction covering the presumption of innocence was given either orally or in writing. Even though the absence of such instruction was not objected to or brought to the court’s attention, it was clear error for the court not to give it. On the basis of the sound reasoning set forth by Justice White, in Coffin, I conclude that the failure to give an instruction on the presumption of innocence also violates Section 17 of Article II of the Constitution of the State of Montana 1972 (due process clause), and the Fourteenth Amendment to the Constitution of the United States.

I am well aware of redesignated § 46-20-701(2), MCA(1991), which was amended to read as follows:

Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. No claim alleging an error affecting jurisdictional or constitutional right may be noticed on appeal, if the alleged error was not objected to as provided in 46-20-104, unless the defendant establishes that the error was prejudicial as to his guilt or punishment and that:
(a) The right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;
(b) The prosecutor, the judge, or a law enforcement agency suppressed evidence from the defendant or his attorney that prevented the claim from being raised and disposed of; or
(c) Material and controlling facts upon which the claim is predicated were not known to the defendant or his attorney and could not have been ascertained by the exercise of reasonable diligence. However, the plain error doctrine was first considered and applied

by this Court in Halldorson v. Halldorson (1977), 175 Mont. 170, 573 R2d 169. This is within the Court’s constitutional prerogative under Article VII, Section 2 of the 1972 Montana Constitution, which provides in part:

Section 2. Supreme Court jurisdiction. (1) The Supreme Court has appellate jurisdiction and may issue, hear, and determine writs appropriate thereto. It has original jurisdiction to issue, hear, and determine writs of habeas corpus and such other writs as may be provided by law.
(2) It has general supervisory control over all other courts.
(3) It may make rules governing appellate procedure practice and procedure for all other courts admission to the bar and the conduct of its members. Rules of procedure shall be subject to disapproval by the legislature in either of the two sessions following promulgation.

If one considers the Halldorson case to be an enunciation of a procedural rule, this would be subject to the legislative veto, and in application of the last sentence of Section 3, a disapproval by the legislature would have to occur in the 1979 or 1981 legislative session. This did not happen. But there is a more serious question as to whether or not the legislature has the right to initiate procedural rules, contrary to this Court’s decisions, as they have done here. They have essentially not disapproved the Halldorson rule, they have initiated an amended procedural rule by putting limitations upon it.

It cannot be questioned that what can be heard on appeal in a criminal case when it is not objected to in the trial court, is a procedural rule. The legislature has the power to disapprove, but it cannot initiate. The legislature, in limiting the application of the plain error doctrine in criminal cases, has usurped a function which is reserved to the judicial branch. In the specific case before us, the failure to instruct on the presumption of innocence in considering the defendant’s guilt or innocence, and the failure to instruct on the burden of proof beyond a reasonable doubt, isa violation of fundamental and substantive rights of the defendant by the government, and violates both the due process clause of the Montana Constitution and that of the United States Constitution. If such instructions are not presented by the state or the defendant, it is the duty of the trial court to so instruct. To say that we cannot consider such a fundamental and substantive violation of a defendant’s rights on appeal due to the failure to object at the trial level is the erection of procedural barriers by the legislature designed to impede the judicial function in interpreting the Constitution. I would therefore hold that § 46-20-701(2), MCA(1991), specifically violates Article VII, Section 2 of the Montana Constitution, and is a procedural barrier that the legislature cannot erect, when those procedural barriers are designed to impede the judicial function in the review and interpretation of fundamental rights as set forth in the Constitution.

I would reverse and remand for a new trial.


author: JUSTICE TRIEWEILER JUSTICE WEBER

text:
    DEBRA NAVE, Personal Representative of the Estate of Larry E. Nave, Jr., Deceased; and DEBRA NAVE, Surviving, Spouse; and BEAU D. NAVE, Surviving Son, through DEBRA NAVE, Conservator, Plaintiffs and Appellants, v. HARLAN JONES DRILLING and COP CONSTRUCTION CO., a Montana Corporation, Defendants and Respondents.
    No. 90-589.
    Submitted on briefs June 7, 1991.
    Decided February 20, 1992.
    Rehearing Denied April 5, 1992.
    49 St.Rep. 147.
    252 Mont. 199.
    827 P.2d 1239.
    For Appellants: Lloyd E. Hartford, Attorney at Law, Billings.

      For Respondents: Michael Heringer, Anderson, Brown, Gerbase, Cebull, Fulton, Harman & Ross, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Larry Nave, Jr., a construction worker, was employed on a highway construction project near Broadus, Montana. He was injured when the crank of a water pump struck him in the face. Nave sued the supplier of the pump (Harlan Jones Drilling) and the general contractor on the construction project (COP Construction Co.). In 1989, Nave committed suicide. His wife and son were substituted as plaintiffs.

Before trial, the District Court for the Sixteenth Judicial District, Powder River County, granted COP Construction’s motion for summary judgment on the basis that the general contractor had no duty to ensure the safety of the workplace for the employee of a subcontractor. The Naves have appealed from the summary judgment. We reverse.

The issue presented in this appeal is whether under the terms of its contract COP Construction had a nondelegable duty, extending to the employee of a subcontractor, to maintain a safe workplace on its construction project.

Respondent COP Construction was the general contractor for a federal aid highway and bridge construction project on Highway 212 near Broadus, Montana. The State of Montana contracted with COP Construction to complete most of the project in the spring and summer of 1985. COP Construction, in turn, subcontracted a major portion of the contract to Byron Construction. Byron Construction contracted to move the earth and build the roads to the new bridge crossing the Powder River.

Larry Nave, Jr., was an employee of Byron Construction. Nave was hired to drive a water wagon on the project. Water was needed on the job site for dust control and compaction of the foundation of the road. This water was pumped from the Powder River. Harlan Jones Drilling supplied the water pump to Byron Construction.

On the morning of July 15, 1985, Nave suffered facial and head injuries. Apparently he was attempting to start the engine on the water pump with a hand crank starter. The pump “kicked back” and the hand crank struck him in the face.

In 1988, Nave filed a complaint against Harlan Jones Drilling and COP Construction seeking damages for his medical expenses, lost earnings, and pain and suffering. Nave claimed accrued medical expenses, as of July 1988, of $9134.

In August 1989, Nave committed suicide. Debra Nave, his surviving spouse, and Beau Nave, his son, were substituted as plaintiffs. The Naves filed an amended complaint which included a cause of action for wrongful death. They alleged that Larry Nave suffered back and neck pain from his injuries which continued to increase in severity up to the time of his death, that he suffered from blackout spells caused by his injuries, and that he became depressed and abused alcohol in attempting to deal with his physical ailments. They alleged that these problems were partly responsible for Nave’s death by suicide.

In August 1990, COP Construction filed a motion for summary judgment. COP Construction argued, among other things, that it had no duty to inspect the subcontractor’s equipment and no duty to ensure safety in the workplace for the subcontractor’s employees.

On October 31, 1990, the District Court granted COP Construction’s motion for summary judgment. The District Court concluded that COP Construction did not have the duty to ensure a safe workplace for the subcontractor’s employees, and therefore was not liable for the injuries Nave suffered.

The Naves have appealed from this decision.

Did COP Construction have a nondelegable duty, extending to the employee of a subcontractor, to maintain the safety of the workplace on its construction project?

The Naves contend that COP Construction had a nondelegable duty, extending to the employee of a subcontractor, to maintain the safety of the workplace on its construction project. We agree.

The outcome in this case is controlled by our decision in Stepanek v. Kober Construction (1981), 191 Mont. 430, 625 P.2d 51. Pursuant to that decision, COP Construction had a contractual duty to provide for the safety of all employees at the work site, and it cannot delegate that duty to its subcontractor, Byron Construction.

In’ Stepanek, the County of Yellowstone contracted with Kober Construction to build a recreational facility in Billings. Kober Construction subcontracted with Albert D. Wardell Masonry for the completion of the masonry work on the project. Stepanek, employed by the subcontractor, was injured when he fell from the subcontractor’s scaffolding. After Stepanek filed an action against Kober Construction, the district court granted summary judgment in favor of the general contractor.

On appeal, this Court noted that “[t]he primary contract between the general contractor and Yellowstone County required the general contractor to be ‘responsible for initiating, maintaining, and supervising all safety precautions and programs’ ” on the construction project. Stepanek, 625 P.2d at 52. This Court further noted that it had previously held that similar contractual arrangements resulted in the creation of a nondelegable duty. Stepanek, 625 P.2d at 53 (citing Ulmen v. Schwieger (1932), 92 Mont. 331, 12 P.2d 856). This Court reviewed the important public policy concerns involved, including preventing accidents in the workplace and protecting against the economic costs of injuries. We concluded that the general contractor had a nondelegable duty to provide a safe working environment for the employees of subcontractors. Stepanek, 625 P.2d at 55. We also determined that the duties of the general contractor (“employer”) mandated by the Montana Safe Place Statute, § 50-71-201, MCA, are owed to the employees of a subcontractor if there is a nondelegable duty arising from the contract. Stepanek, 625 P.2d at 55 (citing Shannon v. Howard S. Wright Constr. Co. (1979), 181 Mont. 269, 593 P.2d 438).

The District Court granted COP Construction’s motion for summary judgment based on its determination that there was no provision in the primary contract expressly requiring COP Construction to “initiate, maintain, or supervise safety programs.” The District Court therefore concluded that a nondelegable duty, based on the contract, had not been created. We note, however, that COP Construction’s contract with the State of Montana imposed the following nondelegable duty on the general contractor:

VIII. SAFETY; ACCIDENT PREVENTION.
In the performance of this contract, the contractor shall comply with all applicable Federal, State and local laws governing safety, health and sanitation. The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions, on his own responsibility, or as the State highway department contracting officer may determine, reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract.
It is a condition of this contract, and shall be made a condition of each subcontract entered into pursuant to this contract, that the contractor and any subcontractor shall not require any laborer or mechanic employed in performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety, as determined under construction safety and health standards (Title 29, Code of Federal Regulations, Part 1926, formerly Part 1518, as revised from time to time), promulgated by the United States Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and safety Standards Act (83 Stat. 96). [Emphasis added.]

While the language is not identical to the language interpreted and applied in Stepanek, the obligation imposed by the language in this contract is identical to the obligation found to exist in Stepanek. Because the duty imposed on COP Construction by its contract was nondelegable, COP Construction cannot avoid liability by attempting to shift the responsibility to someone else. Regardless of the obligations of Byron Construction or others, COP Construction retained the responsibility to provide Larry Nave with a safe place to work.

Micheletto v. State (1990), 244 Mont. 483, 798 P.2d 989, cited by COP Construction, is inapposite. In Micheletto the contract between the State of Montana as general contractor and the Telephone Company as subcontractor did not contain language which established a nondelegable duty requiring the general contractor to supervise the safety of the construction operations. See Micheletto, 798 P.2d at 991-93. The language of COP Construction’s contract with the State of Montana is in marked contrast with the contract language in Micheletto.

We conclude that the District Court erred in granting summary judgment to COP Construction. We reverse the District Court’s decision and we remand this matter to the District Court for further proceedings consistent with this opinion.

JUSTICE HARRISON, GRAY, HUNT and McDONOUGH concur.

JUSTICE WEBER

specially concurring:

I agree with the majority opinion which points out that under Stepanek, the primary contract between the general contractor and Yellowstone County specifically required the general contractor to be responsible for initiating, maintaining, and supervising all safety precautions and programs on the project. As pointed out in the majority opinion, the key part of the COP Construction’s contract with the State of Montana imposed the following duty:

VIII. SAFETY; ACCIDENT PREVENTION.
... The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions on his own responsibility, or as the State Highway Department contracting officer may determine, reasonably necessary to protect the life and health of the employees on the job ...”

I agree that the above contract requirement is equivalent to the obligation found to exist in the Stepanek contract. Although it is difficult to understand how COP Construction could be found to have failed to take any action necessary to reasonably protect Mr. Nave from the injury he received, I do concur in the majority opinion.

I find it important to suggest some of the contradictions which are present in this result. As stated in Micheletto v. State (1990), 244 Mont. 483, 798 P.2d 989, and in earlier Montana cases, Montana follows the general rule that absent some form of control over the subcontractor’s method of operation, the general contractor is not liable for injuries to the subcontractor’s employees. While there is no indication in this case that COP Construction retained any control over the subcontractor with regard to work performed by Mr. Nave on the job, COP Construction may be held responsible. The result is that a general contractor under this specific form of contract could be held responsible for any injury suffered by an employee of a subcontractor. In order to protect himself, this suggests that a general contractor would be required to take all the steps necessary to protect an employee of a subcontractor from injury. This further suggests that a general contractor would be required to supervise every portion of the work performed by an employee of a subcontractor. Such supervision on the part of the general contractor appears to make it totally impractical to use subcontractors.

Our holding in this case clearly demands consideration of this problem by those who draft and participate in such construction contracts.

CHIEF JUSTICE TURNAGE joins in the foregoing special concurrence.