text:
    GLACIER NATIONAL BANK, Plaintiff and Respondent, v. JAMES P. CHALLINOR and BETTY E. CHALLINOR, husband and wife, Defendants and Appellants.
    No. 91-628.
    Submitted on briefs Apr. 23, 1992.
    Decided June 9, 1992.
    49 St.Rep. 503.
    253 Mont. 412.
    833 P.2d 1046.

      For Appellants: Russell K. Jones, Spokane.
    For Respondent: William E. Hileman, Jr. and Timothy A. Cooper, Hedman, Hileman & Lacosta, Whitefish.
   JUSTICE HUNT

delivered the opinion of the Court.

James P. Challinor and Betty E. Challinor appeal from the decision of the District Court of the Nineteenth Judicial District, Lincoln County. Glacier National Bank brought this action to secure a judgment and foreclose a mortgage given by the Challinors in order to secure certain letters of credit from the bank. Following a trial without a jury, the District Court entered judgment in favor of Glacier National Bank and ordered foreclosure of the mortgage. This appeal followed.

We affirm.

The only issue raised on appeal is whether the District Court abused its discretion in not allowing the appellant to present evidence regarding a “suretyship defense” at trial.

In late 1982, the appellants successfully bid on a United States Forest Service (Forest Service) road construction contract. The contract required a payment bond and a performance bond. In order to satisfy this requirement of the contract, the appellants obtained from the respondent bank certain letters of credit. In early December 1982, the respondent issued an irrevocable letter of credit to the account of the appellant for $24,623.20 for the payment bond, and another letter of credit for $49,246.34 for the performance bond. Appellants agreed to reimburse respondent in the event of payment on the letters of credit. In order to secure this reimbursement, the appellants gave certain promissory notes to the respondent in the amount of the letters of credit. To secure the payment of the principal sums and interest on these promissory notes, the appellants executed and delivered to respondent a mortgage on the appellants’ home, land, and construction equipment. Appellants then made and delivered another promissory note to respondent in the original amount of $29,307.44 for operating expenses. This note was partially secured ($10,000) by the future advance clause of the mortgage.

On September 23,1983, the Forest Service terminated the contract with appellants, claiming appellants had defaulted. On January 6, 1984, the appellants, respondent, the United States Department of Agriculture, and the Forest Service executed a reinstatement agreement allowing the appellants to resume work. The language in the reinstatement agreement, which was the subject of the dispute in the District Court, provided that:

The BANK agrees, subject to all available defenses, to honor at the time of presentment the GOVERNMENT’S sight draft specifying the number of these credits and drawn in favor of contract number 50-03J1-3-003. [Emphasis added.]

On August 6, 1984, the Forest Service again declared the appellants in default and terminated the reinstatement agreement. The Forest Service then made demand upon the respondent for payment pursuant to the two letters of credit. Appellants advised the respondent to refuse payments, but respondent paid the sums to the Forest Service. The appellants refused to pay respondent the sums due as evidenced by the promissory notes. Respondent brought this action to secure judgment for the amounts owed and to foreclose the mortgage given as collateral. Appellants counterclaimed, alleging that the respondent’s actions were unlawful, fraudulent, and negligent. The District Court granted judgment in favor of the respondent on the counterclaim in October 1990, prior to the conclusion of the trial of the action brought by the respondent.

Appellants appeared pro se on the first day of trial. The trial resumed on a later date when the appellants could appear with counsel. Appellants attempted to argue at trial that the letters of credit were in fact not letters of credit, but that the language in the reinstatement agreement constituted a suretyship agreement. Appellants’ theory, first presented at trial, was that the respondent had waived the right to reimbursement by failing to assert available defenses prior to paying the Forest Service on the letters of credit. Specifically, appellants contend that the respondent should not have paid on the letters of credit because for various reasons the appellants were not in default. Appellants allege this defense should have been asserted by the respondent when the Forest Service demanded payment because the letters of credit, in reality, created a suretyship agreement between the appellants and the respondent. The distinction between letters of credit and a suretyship or guaranty is significant and has been explained by this Court as follows:

It is a well settled matter of law that an instrument issued as a letter of credit and containing language that it is substantively a letter of credit creates a primary obligation in the issuer and must be enforced as such, and not as an instrument of guaranty:
Although every letter of credit appears to function as a guaranty, there are important distinctions. [Citation omitted.] Atrue guaranty creates a secondary obligation whereby the guarantor promises to answer for the debt of another and may be called upon to perform once the primary obligor has failed to perform. Since a guaranty is ancillary to the underlying contract, a dispute as to the rights and obligations of a guarantor can only be resolved by a factual determination of the rights and obligations of the parties of the underlying contract. A bank that issues a credit however creates a primary obligation as principal, not as an agent of the account party. On the issuance of a credit the bank assumes a primary obligation independent of the underlying contract. [Citations omitted.] [Emphasis in original.]

Gerling Global Reinsurance Corp. v. First Interstate Bank (1990), 242 Mont. 216, 219, 789 P.2d 1237, 1239. Appellants wanted to present evidence that the agreement in question was in fact a suretyship agreement and that the respondent, therefore, had an obligation to assert all defenses available to the appellants prior to paying the Forest Service.

At trial, the respondent objected to the introduction of evidence concerning this alleged defense or theory on the basis of surprise. Respondent argued that the defense had not been pled, was not disclosed in any pretrial discovery nor at the pretrial conference, and was not properly before the court. The District Court agreed and excluded any evidence of a suretyship agreement and possible defenses the respondent should have raised. At the conclusion of the bench trial, judgment was entered in favor of the respondent, with foreclosure ordered.

The only issue raised by appellants on appeal is whether the District Court abused its discretion in not allowing the appellant to present evidence regarding a suretyship defense at trial. 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.

It is clear from our review of the transcript of the trial that the District Court afforded the appellants considerable latitude and time in order to attempt to show that the respondent had been put on notice of the suretyship argument. After a lengthy and extensive discussion of the contents of the pleadings, pretrial conference, interrogatories, and depositions, the District Court concluded that respondent had no notice of appellants’ contentions, and therefore, they had not been properly brought before the court.

Appellants present several different arguments on appeal in support of their contention that it was an abuse of discretion for the District Court to exclude evidence relative to the suretyship defense. First, appellants argue that the respondent raised the issue of the suretyship at trial, and therefore, could not object on the basis of surprise to the appellants wanting to pursue the issue. Second, appellants contend that the respondent’s failure to request a continuance at trial is a waiver of the right to rely on the objection of surprise on appeal. Third, appellants argue that exclusion of the evidence was overly harsh in light of the circumstances.

Appellants initially argue that respondent cannot object to an issue which it introduced at trial. Appellants refer to testimony given at trial by a representative of the respondent who stated that it was the respondent’s position that if a demand on the letters of credit was made that the respondent had no alternative other than to pay. Additionally, the reinstatement agreement was offered into evidence by the respondent.

Appellants apparently are arguing that the pleadings should have been amended to conform to this evidence pursuant to Rule 15(b), M.R.Civ.P. It is within the discretion of the trial court whether to allow such amendments and the decision of the trial court will not be disturbed by this Court absent an abuse of discretion. Keaster v. Bozik (1981), 191 Mont. 293, 623 P.2d 1376. Clearly, issues not raised by the pleadings may be tried by the express or implied consent of the parties. Butte Teachers’ Union v. Board of Trustees (1982), 201 Mont. 482, 655 P.2d 146. If this occurs, then the pleadings can be amended to conform to the issues actually litigated. It is clear that the respondent did not expressly consent to the litigation of the suretyship issue. Therefore, the only hope appellants have of prevailing on this argument would be to show that the respondent implicitly consented to the litigation of the suretyship defense.

This Court has previously held that when evidence and issues extrinsic to the pleadings are admitted at trial without objection, the failure to object is an implicit consent to the litigation of those issues. Lemley v. Bozeman Community Hotel Co. (1982), 200 Mont. 470, 651 P.2d 979 (citing Reilly v. Maw (1965), 146 Mont. 145, 405 P.2d 440). In this case, the record is replete with objections raised by the respondent in response to appellants’ attempt to interject evidence into the trial concerning the suretyship issue. Concerning the issue of implied consent this Court has stated that:

Implied consent to trial of issues not raised in the pleadings will only be effective where the apparent consenting party has received adequate notice that new issues will be raised at trial. It is a fundamental question of due process of law: the right to notice.

Hoefer v. Wilckens (1984), 210 Mont. 218, 230, 684 P.2d 468, 474 (citing Gallatin Trust Bank v. Darrah (1968), 152 Mont. 256, 448 P.2d 734). The District Court found no such notice in this case. It is clear that the respondent did not consent, either explicitly or implicitly, to the litigation of the suretyship issue. In light of the circumstances involved in this case, it was not an abuse of discretion for the District Court to not order the pleadings amended to reflect the suretyship argument.

Second, the appellants argue that the respondent’s failure to request a continuance at trial waives its right to rely on the objection of surprise on appeal. Appellants rely on this Court’s decision in Sikorski v. Olin (1977), 174 Mont. 107, 568 P.2d 571, in which we held that failure to request a continuance when first presented with surprise or prejudicial evidence was a waiver of the right to claim error on appeal. Respondent is not claiming error on appeal. In any event, that portion of Sikorski which held that the failure to request a continuance constitutes a waiver of the objection on appeal was expressly overruled by this Court in Bache v. Gilden (Mont. 1992), [252 Mont. 178,] 827 P.2d 817, 49 St. Rep. 203.

Finally, appellants argue that in light of the circumstances, excluding the evidence in this instance was an unduly harsh penalty. While it is clearly within the district court’s discretion to decide what sanctions should be imposed upon a party who fails to comply with discovery rules, it is also true, as appellants point out, that exclusion of evidence for noncompliance with discovery rules is a harsh remedy. Barrett v. Asarco, Inc. (1988), 234 Mont. 229, 763 P.2d 27. Appellants argue that the exclusion of the evidence was a great hardship. Additionally, appellants point out that they experienced repeated pretrial failure of representation.

However, appellants had ample opportunity to raise any theory under which they desired to defend against the respondent’s action. The District Court afforded appellants every opportunity to demonstrate that notice concerning this theory had been given to the respondent. Upon finding that notice had not been given, the District Court considered the possible prejudice to the respondent. The issue appellant attempted to raise would have changed the entire complexion of the lawsuit. Despite many opportunities, appellants did not give notice prior to the start of trial of their intent to raise this issue. Finally, respondent repeatedly objected in a timely fashion to the introduction of this new issue. Under these circumstances we cannot say that the District Court abused its discretion in not allowing the appellants to present evidence on the suretyship defense.

Affirmed.

JUSTICES GRAY, TRIEWEILER, McDONOUGH and WEBER concur.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DANIEL W. MASON, Defendant and Appellant.
    No. 90-546.
    Submitted on briefs Peb. 13, 1992.
    Decided June 11, 1992.
    49 St.Rep. 506.
    253 Mont. 419.
    833 P.2d 1058.

      For Appellant: Daniel W. Mason, Pro Se, Deer Lodge.
    For Respondent: Marc Racicot, Attorney General; Cregg W. Coughlin, Assistant Attorney General, Helena; Robert Deschamps, III, County Attorney, and Betty Wing, Deputy County Attorney, Missoula.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellant Daniel W. Mason, appearing pro se, appeals his conviction of felony sexual assault in the Fourth Judicial District Court, Missoula County. Specifically, he alleges that his plea of guilty was made under duress and coercion and that he suffered from ineffective assistance of counsel.

We affirm.

Appellant raises several issues for our consideration. However, we will phrase the issues as follows:

1. Was appellant denied effective assistance of counsel?

2. Was appellant coerced into pleading guilty?

3. Was appellant subjected to double jeopardy when the District Court amended its oral sentence of 20 years in prison to include completion of the sexual offender and alcohol treatment programs at Montana State Prison?

4. Was appellant denied due process when he was not permitted access to the county law library while awaiting trial?

5. Did the District Court properly consider the victim’s age when sentencing appellant?

6. Was appellant denied his right to appellate counsel under the Sixth Amendment?

On March 28, 1990, appellant was charged by information with one count of sexual assault in violation of § 45-5-502, MCA. At his arraignment hearing, appellant pled not guilty to the charge. On April 12,1990, the District Court set jury trial for April 23,1990. On the same day, the State filed a notice of intent to introduce evidence of other acts to which defense counsel originally objected, and then later withdrew the objection.

During the pretrial period, defense counsel discussed possible plea agreements with the prosecuting attorney. On April 21, 1990, appellant signed a plea agreement with the State. On April 23, 1990, defense counsel advised the District Court that appellant wished to change his plea of not guilty to guilty. The court determined the plea was voluntary and informed and explained to appellant that the plea agreement was not binding upon the court. The guilty plea was entered and sentencing postponed until the court had an opportunity to examine the presentence investigative report.

On May 24, 1990, appellant appeared before the court and was sentenced to 20 years in jail with no portion of the sentence suspended, and designated a nondangerous offender for purposes of parole eligibility. Later in the day, appellant was brought back before the District Court and the court amended the sentence to require appellant to enroll in and complete the sexual offender intensive treatment and alcohol intensive treatment programs at the Montana State Prison.

On May 29, 1990, appellant, acting pro se, filed with the District Court a Motion for Appeal of Sentence and Court Appointed Counsel. The District Court considered the matter as a request for sentence review. However, this Court advised the District Court that the pleading was a notice of appeal. The court appointed counsel to represent appellant. On July 15, 1990, appellant’s counsel filed a request to withdraw, claiming there were no meritorious issues for appeal, along with a brief in accordance with Anders v. California (1967), 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493. On September 10,1991, this Court granted counsel’s leave to withdraw. On November 22, 1991, acting pro se, appellant filed his brief for this Court to consider.

I.

Was appellant denied effective assistance of counsel?

This Court has adopted the two-pronged test established by the United States Supreme Court for determining whether a counsel’s performance was deficient when representing a criminal defendant. Strickland v. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. Under this test, the defendant must:

[F]irst demonstrate that counsel’s performance was deficient. To demonstrate that a counsel’s performance was deficient, defendant must prove that counsel’s performance fell below the range of competence reasonably demanded of attorneys in light of the Sixth Amendment. Second, the defendant must demonstrate that the counsel’s deficiency was so prejudicial that the defendant was denied a fair trial. To satisfy this requirement, the defendant must demonstrate that but for counsel’s deficient performance, it is reasonably probable that the result of the challenged proceeding would have been different.

State v. Senn (1990), 244 Mont. 56, 59, 795 P.2d 973, 975.

The second prong or “prejudice” requirement focuses on whether counsel's ineffective assistance affected the outcome of the plea process. Hill v. Lockhart (1985), 474 U.S. 52, 59, 106 S. Ct. 366, 370, 88 L.Ed.2d 203, 210. When a guilty plea is at issue, rather than the result of a trial, the defendant must prove that “but for counsel’s deficient performance, the defendant would not have pled guilty, and would have insisted on going to trial.” Senn, 795 P.2d at 975.

Most of appellant’s assertions contain matters outside of the record. This Court’s review of allegations on direct appeal is limited to what is contained in the record, and therefore, we will limit our inquiry only to those matters contained in the record. Section 46-20-701, MCA.

Appellant alleges that he was denied effective assistance of counsel because his attorney: (a) improperly withdrew objection to the State’s intent to use prior acts; (b) failed to object to the post-omnibus hearing endorsement of witnesses; (c) failed to seek a continuance of the trial date; (d) failed to inform the court of errors in the presentence investigation report; and (e) failed to advise him of the right to appeal.

Appellant fails to allege how any of these arguments affect the voluntariness of his plea. Since the case did not go to trial, the withdrawal of objection to prior acts and the lack of objection of witnesses who never testified had no affect on the outcome of defendant’s guilty plea.

Defendant’s complaint that he was not given adequate time to decide whether he wanted to go to trial, or accept the plea bargain agreement, may have worked a hardship on the defendant, but counsel’s failure to seek additional time does not demonstrate ineffective assistance of counsel.

With regard to the remaining issues, there is nothing contained in the record which substantiates appellant’s claim that his defense counsel’s performance was deficient and that but for his counsel’s deficient performance, defendant would not have pled guilty. We hold appellant was not denied effective assistance of counsel.

II.

Was appellant coerced into pleading guilty?

This Court considers three factors to determine whether a defendant’s guilty plea should be withdrawn:

1. The adequacy of the District Court’s interrogation as to the defendant’s understanding of the plea;

2. The promptness of the motion to withdraw the prior plea;

3. The fact that the defendant’s plea was apparently the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge.

State v. Miller (1991), 248 Mont. 194, 196-97, 810 P.2d 308, 309.

The record reflects that the District Court read appellant his rights and asked him if he understood that those rights would be waived by a plea of guilty. Appellant indicted that it was his desire to plead guilty. The court set out the charges against appellant and explained that, it was not required to follow the plea agreement. Appellant indicted that he understood the effect of his guilty plea. Appellant stated in court that he was not coerced, threatened, or promised leniency in exchange for entering the guilty plea. He also indicted to the court that he was not under the influence of drugs or alcohol. In addition, he never filed a motion to withdraw his guilty plea at the District Court level, but instead, waited until after sentencing to raise the issue on appeal. We hold that appellant entered into the plea agreement voluntarily and with full understanding of the charge and its consequences.

III.

Was appellant subjected to double jeopardy when the District Court amended its oral sentence of 20 years in prison to include the completion of the sexual offender and alcohol treatment programs at Montana State Prison?

On the morning of May 24, 1990, the District Court orally pronounced judgment upon defendant. The court originally sentenced appellant to 20 years in prison with no time suspended. The court also designated appellant as a nondangerous offender. Later in the afternoon of the same day, the District Court amended its oral sentence to require as a condition of parole that appellant complete the sexual offender and alcohol treatment programs at the Montana State Prison. Appellant contends this additional sentence placed him in double jeopardy. We disagree.

In State v. Enfinger (1986), 222 Mont. 438, 722 P.2d 1170, this Court adopted the Diaz rule which states:

“It is well established that an oral ruling by the trial court is not a final judgment, and that the trial court can change such ruling at any time before the entry of written judgment.”

Enfinger, 722 P.2d at 1174 (quoting State v. Diaz (N.M. 1983), 673 P.2d 501, 502). The oral sentence pronounced by the District Court was not a final or valid judgment. We hold that appellant was not placed in double jeopardy because the original oral judgment was not final.

IV.

Was appellant denied due process when he was not permitted access to the county law library while awaiting trial?

Appellant contends that he was denied access to the county law library which he needed for the preparation of his case. In Bounds v. Smith (1977), 430 U.S. 817, 97 S. Ct. 1491, 52 L. Ed. 2d 72, the United States Supreme Court noted that one way to assure an indigent’s right to meaningful access to the courts was for the state to provide an adequate law library or adequate legal assistance from trained individuals. The Court held that:

[T]he fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.

Bounds, 430 U.S. at 828. Previously, we have held that the state is only required to “provide inmates with adequate legal libraries or some other reasonable alternative.” State v. Lance (1986), 222 Mont. 92, 106, 721 P.2d 1258, 1268. In this instance, appellant was incarcerated while he awaited trial and was provided with court-appointed counsel who was in frequent contact with appellant. Appellant has not demonstrated any reason why he would need access to a law library while awaiting trial when he was already receiving legal assistance from his court-appointed counsel. We hold that without a showing of need, due process does not require an accused individual who is awaiting trial and is represented by counsel also have access to a law library.

V.

Did the District Court properly consider the victim’s age when sentencing appellant?

Appellant contends that the District Court improperly considered the victim’s age when sentencing appellant to 20 years in prison. Section 45-5-502, MCA, provides that when a person is convicted of felony sexual assault and the victim is less than 16 years of age and the offender is three years older than the victim, the district court may sentence the offender to a statutory maximum of 20 years in prison. We hold that because the victim was only seven years old, the District Court properly considered the victim’s age and did not abuse its discretion in sentencing appellant to 20 years in prison.

VI.

Was appellant denied his right to appellate counsel under the Sixth Amendment?

While it is correct that appellant has the right to an attorney on his first appeal, the United States Supreme Court has established a procedure for when an attorney believes an appeal lacks meritorious issues.

[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

Anders v. California (1967), 386 U.S. at 744.

This Court granted appellate counsel’s request to withdraw after following the procedures mandated by Anders. This Court, as a matter of practice, allows the case to proceed on the merits to insure that the indigent defendant has been accorded his full due process rights. We hold that appellant was not denied his right to appellate counsel under the Sixth Amendment.

We affirm the conviction and sentencing of the District Court.

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


author: JUSTICE TRIEWEILER

text:
    DONALD E. DRUMMOND, ELIZABETH J. DRUMMOND, J. GILBERT EVANS, DENNIS L. LaFEVER, JACQUELINE R. LaFEVER, PHILLIP E. MASON, CAROLYN J. TICHENOR, DARYL L. TICHENOR, MARCELLA J. CAMPBELL, KENNETH K. CAMPBELL, NELS P. SALMONSEN, and RUTH M. SALMONSEN, Plaintiffs and Appellants, v. TOWN OF VIRGINIA CITY, MADISON COUNTY, MONTANA, a body politic and corporate, MICHAEL J. MAJERUS, its Mayor, MELINDA J. TICHENOR, GERALD F. FOX, KATHLEEN D. KINNEY, AND DONALD D. WILLIAMS, members of the Town Council, PATRICIA PEDULA, Town Clerk-Treasurer, LOREN TUCKER, Town Attorney and DOROTHY C. BROWN, Election Administrator, Town of Virginia City, and all duly qualified electors of the Town of Virginia City, Madison County, Montana, Defendants and Respondents.
    No. 91-296.
    Submitted on briefs Feb. 13, 1992.
    Decided June 11, 1992.
    49 St.Rep. 510.
    253 Mont. 428.
    833 P.2d 1067.

      For Appellant: Samuel M. Warren, Worden, Thane & Haines, Missoula.
    For Respondent: Loren Tucker, City Attorney, Virginia City.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

This is an appeal from an order of the District Court of the Fifth Judicial District, Madison County, dismissing plaintiffs’ petition to invalidate a municipal mail ballot election.

The issue on appeal is whether the District Court erred in its determination that Virginia City complied with all statutory election procedures. We affirm the District Court.

Prior to December 4, 1990, the Town of Virginia City decided, through its City Council, to submit to the voters a resort tax proposal pursuant to § 7-6-4461, et seq., MCA. The council voted to conduct the election by mail ballot as provided for in § 13-19-101, MCA. On December 4, 1990, the Election Administrator of Madison County submitted a written plan for a mail ballot election to the Secretary of State, pursuant to § 13-19-205, MCA. The plan was approved, and the election was scheduled for February 5,1991. Notice of the election and the date of closing of registration was published, and registration was closed on January 7, 1991. Ballots were printed and mailed to the registered voters. The election was held as scheduled, and the proposed tax ordinance was approved by a margin of 53 to 47. The results were certified the following day.

On April 9, 1991, 63 days later, plaintiffs filed a petition to invalidate the mail ballot election. They alleged that the election was prematurely held, that a number of voters had not met the residency requirements outlined in the local ordinances of Virginia City, and that the return of ballots by persons other than the actual electors violated §§ 13-19-106(4), 13-19-306, -307, and -308, MCA (1989).

Ahearing was held on April 23,1991. The matter was orally argued and briefed, and on May 7, 1991, the District Court entered it Findings of Fact, Opinion, and an Order dismissing the petition. Plaintiffs appeal the District Court Order.

Plaintiffs allege that the court erred in upholding the election due to “the Election Administrator’s non-compliance with the personal delivery requirements of the Mail Ballot Election statutes.” Plaintiffs state that the requirements of §§ 13-19-106(4) and 13-19-306 through -308, MCA, were not met. Section 13-19-106, MCA (1989), provides the general requirements for a mail ballot election. It reads in part:

(1) Official ballots must be prepared and all other initial procedures followed as otherwise provided by law.
(2) An official ballot must be mailed to every qualified elector of the political subdivision conducting the election.
(3) The elector shall mark the ballot at home and place it in a secrecy envelope.
(4) The elector shall then place the secrecy envelope containing his ballot in a retum/verification envelope and shall return it by mailing it or delivering it in person to a place of deposit designated by the election administrator so that it is received prior to a specified time on election day.

Plaintiffs contend that subsection (4) of the statute requiring that the elector return the ballot by mail or in person is mandatory. The term “in person” is used in several sections of the chapter.

The record discloses that 19 of the ballots tallied by the election administrator (including ballots by two of the plaintiffs) were delivered by persons other than the elector. The Madison County Voter Official Register shows that 17 of the ballots were delivered by family members of the elector. The two remaining ballots were delivered by an employee of the Election Administrator’s office for persons who were disabled and unable to do so themselves.

Plaintiffs state that the language of the mail ballot election statutes mandates personal delivery if mail return is not used, and that these provisions exist to prevent voter fraud or other election abuses. Plaintiffs contend that any deviation from this requirement invalidates the election.

We agree with plaintiffs’ contention that the provisions of Montana’s mail ballot election chapter are designed to curb election abuses. However, we do not agree that a rigid adherence to the statutory provisions is essential to sustain an election result.

In this case, no evidence has been adduced that any voter fraud occurred. The election administrator testified that she complied with the elector verification procedures of § 13-19-310, MCA, and the valid ballot requirements of § 13-19-311, MCA. She testified that all ballots were sealed in the appropriate envelopes, with the voter affidavit signature on each return/ verification envelope, and that each signature corresponded with that on the voter registration card.

This Court stated in Thompson v. Chapin (1922), 64 Mont. 376, 209 P. 1060, that “[t]he departure from the law in matters which the Legislature has not declared of vital importance must be substantial in order to vitiate the ballots.” (Quoting Boyd v. Mills (1894), 53 Kan. 594, 37 P. 16.)

In Wilks v. Mouton (Cal. 1986), 722 P.2d 187, the California court was faced with a similar question. The statute directed the voter to return the ballot by mail or in person. Forty-six absentee ballots were delivered by parties other than the elector. The court refused to invalidate the election, stating:

We do not agree, however, that the voters’ and deputy county clerks’ inadvertent violation of this provision requires that we disenfranchise the voter in the face of a trial court finding that there was no fraud or tampering with the challenged ballots. As we said above, the trial court found that in each case the third party-delivered the ballot at the voter’s request and after the voter had signed and sealed the envelope and that there was no tampering.

Wilks, 722 P.2d at 195. In Wilks, when a designee was told he would not be allowed to deliver the ballots, he simply walked outside and deposited the ballots in a mailbox, meeting the letter of the law for election integrity. The court noted that the case was “a perfect illustration of the injustice in nullifying votes because on noncompliance with technical and sometimes ambiguous rules” governing the balloting process. Wilks, 722 P.2d at 195, n.9.

Plaintiffs had the burden of proving a substantive defect in the election by clear and convincing evidence. Absent any hint of fraud, the fact that ballots were delivered by family members does not constitute a substantial deviation from the guidelines set forth in the chapter.

Plaintiffs also contend that the District Court erred in upholding the election results where a number of voters failed to qualify as electors under applicable ordinances. Specifically, plaintiffs state that § 1.04.030 of the Virginia City Ordinance Book disqualified a number of nonresident voters. The statute provides that “[t]he term ’resident’ shall mean any person who has resided within the town of Virginia City for at least thirty (30) days prior to the election.”

Plaintiffs interpret this statute to mean that an individual must reside within the city in the month prior to the election.

A sounder interpretation is that an individual must reside within the city for a minimum of 30 days in order to establish residency. Plaintiffs’ interpretation is burdensome and would effectively disenfranchise many voters in a town that is comprised in great part of seasonal residents. Section 13-1-112, MCA, gives further guidance. It states in part:

For registration or voting, the residence of any individual shall be determined by the following rules as far as they are applicable:
(1) The residence of an individual is where his habitation is fixed and to which, whenever he is absent, he has the intention of returning.
(4)An individual does not lose his residence if he goes into another state or other district of this state for temporary purposes with the intention of returning unless he exercises the election franchise in the other state or district.
(8) A change of residence can be made only by the act of removal joined with intent to remain in another place.

No evidence was offered by the plaintiffs that any elector exercising their voting right had voted elsewhere or did not intend to return to Virginia City. Further, plaintiffs failed to timely challenge any elector’s right to vote, as provided for in §§ 13-13-301 or 13-2-404, MCA, or challenge the registration of any elector, as provided in § 13-2-403, MCA. The District Court properly disallowed plaintiffs’ challenge which came some 60 days after the election, and failed to show that any elector was not a resident, as determined by §13-1-112, MCA. Accordingly, we affirm the District Court.

JUSTICES HARRISON, HUNT, McDONOUGH and WEBER concur.


text:
    IN THE MATTER OF DECLARING J.R. AND S.D., Youths in Need of Care.
    No. 91-303.
    Submitted on briefs Feb. 6, 1992.
    Decided June 11, 1992.
    49 St.Rep. 513.
    253 Mont. 434.
    833 P.2d 1063.

      For Appellant: Jeannette Ellen Berry, Bozeman.
    For Respondent: Marc Racicot, Attorney General, Paul Johnson, Assistant Attorney General, Helena; A. Michael Salvagni, County Attorney, Marty Lambert, Deputy County Attorney, Mark Bryan, Bryan & Atkins, Bozeman; and Susan B. Swimley, Guardian Ad Litem, Belgrade.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

This is an appeal from the judgment of the District Court of the Eighteenth Judicial District in Gallatin County, terminating the parental rights of the natural mother. We affirm

The issues on appeal are whether the mother’s treatment plan ordered by the District Court was appropriate, and whether the termination of her parental rights violated her right to due process.

Appellant is the natural mother of J.R. and S.D., as well as two older children. The Montana Department of Family Services first had contact with the mother in 1979 after reports of poor hygiene, lack of supervision, and physical abuse of the two oldest children were brought to the Department’s attention. The mother subsequently entered into an agreement with the Department to seek day care for J.R. and therapy counseling for the two oldest children.

In 1984 and 1985, the family was living in Idaho Falls, Idaho. The Idaho Department of Family Services received reports similar to those made in Montana. The Idaho DFS intervened, and the two oldest children were placed in protective supervision with the mother’s sister in Bozeman, Montana. Following a divorce in 1986, the mother returned with J.R. to the Bozeman area. School authorities noted that J.R. evidenced the same lack of hygiene that her older siblings had shown. J.R.’s kindergarten teacher eventually contacted a social worker, Gloria Edwards, who met with J.R. in September 1989, and confirmed her lack of good hygiene. Edwards filed a Request for a Petition for Temporary Investigative Authority that was not acted upon by the county attorney’s office.

In April 1990, Ms. Edwards was again called to the school to see J.R. Edwards gave the following description of J.R.’s condition:

She was absolutely filthy. She had dirt on her arms, her hands and her face. And her hair looked all sticky and it had things stuck all over it. And I couldn’t tell what they were. I thought it looked maybe like leaves. It was difficult to distinguish. When the other kids left, then I had her roll up her long sleeves and her arms had caked-on dirt just stuck to her. Her teeth also looked really brown and rotting.

Edwards spoke with the child at length, and J.R. divulged information that led Edwards to believe she was being sexually molested by a male baby sitter. Edwards decided to invoke emergency protective powers and remove J.R. and S.D. from their home. Ahearing was held, and the District Court ruled that removal of the children from the home was appropriate. An investigation that had been ongoing since September 1989 resulted in the arrest of the suspect on charges of sexual assault of J.R. on April 10, 1990. The individual was found guilty in a bench trial of sexual assault of J.R. and sentenced to the Montana State Prison. The sentence was affirmed by this Court in State v. Davis (Mont. 1992), [253 Mont. 50,] 830 P.2d 1309, 49 St. Rep. 342.

Ahearing on the State’s petition for termination of parental rights was held on December 17,18, and 19,1990. Several State’s witnesses testified to the lack of success of the court-ordered treatment plan and treatment contract. Reasons given in support of termination included: the refusal of the mother to admit any parenting problems; the lack of concern over the sexual abuse of J.R.; the cyclical nature of sexual abuse and physical neglect in the family, as evidenced by the two oldest children; the inability of the mother to protect the children, given that the grandmother of the children was sexually involved with Davis and gave testimony in his defense; the lack of normal interaction between the mother and children during supervised visits; the continuing health and safety problems at the mother’s residence; and the great progress that J.R. showed both academically and socially since being removed from the mother’s home.

The District Court concluded that the treatment plan had not been complied with, and that the situation rendering the mother an unfit parent was unlikely to change in the future. The court concluded that the mother’s professionally diagnosed chronic paranoia was of such a nature that it rendered her unlikely to care for the ongoing physical, mental, and emotional needs of her children. The court, therefore, terminated the parent-child relationship between the mother and J.R. and S.D. Custody of J.R. was given to the Montana Department of Family Services. Custody of S.D. was given to her natural father. The mother appeals from this judgment.

The mother contends that the court-ordered treatment plan was inappropriate, resulting in the termination of her parental rights without due process of law.

Section 41-3-609, MCA (1989), sets forth the criteria for termination of the parent-child relationship. The statute states in part:

(1) The court may order a termination of the parent-child legal relationship upon a finding that the circumstances contained in subsection (l)(a), (l)(b), or (l)(c), as follows, exist:
(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. The court shall review and, if necessary, order an evaluation of the child’s or the parent’s physical, mental, and emotional conditions.

The mother contends that the treatment plan implemented in her case was not appropriate, as required by § 41-3-609(l)(c)(i), MCA. She asserts that the court failed to consider her financial situation when it ordered her to undergo a treatment plan. She claims that the court’s failure resulted in her inability to receive proper treatment that would have facilitated the preservation of the parent-child relationship as promoted by the statute and case law.

The mother contends that the primary goal of her treatment plan was psychological therapy. She states she was ordered by the court to pay for her own therapy and was unable to do so because she was indigent, dooming the treatment plan to failure. She contends that because the treatment plan was a fundamental element of the termination procedure, she was denied due process.

The termination of parental rights invokes fundamental liberty interests. Santosky v. Kramer (1982), 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599. The State bears the burden of proving by clear and convincing evidence that all statutory criteria needed to terminate parental rights have been met, including the appropriateness of the treatment plan. Santosky, 455 U.S. at 769, 102 S. Ct. at 1403, 71 L. Ed. 2d at 616; In re L.W.K. (1989), 236 Mont. 14, 18, 767 P.2d 1338, 1341. In this case, the treatment plan was agreed upon by the mother with the advice of her counsel. While that fact should be given consideration it does not by itself prove the plan was appropriate. Matter of R.H. (Mont. 1991), [250 Mont. 164,] 819 P.2d 152, 155, 48 St. Rep. 692, 694.

The court-ordered treatment plan and contract entered into by the mother states that the goal of the agreement is “to assist [the mother] in improving her protection and parenting abilities with her children ....” The return of the children to the mother was contingent upon the successful completion of the tasks outlined in the contract and the continued evaluation by the Department of Family Services and other professionals described in the contract regarding the mother’s capacity to adequately protect and care for her children. Among the specific tasks outlined for the mother were:

1. I agree to contact a psychologist of my choice and obtain a psychological evaluation as soon as possible. I agree that this evaluation will specifically address my ability to understand the needs of children and my capacity to make necessary changes to adequately protect and care for my children. I agree to allow the psychologist access to all available background information on my parenting difficulties.

2. I agree to continue weekly mental health counseling with a psychologist or licensed professional counselor of my choice. I agree to allow communication between the counselor and DFS representative regarding my progress in making necessary changes to understand the needs of my children and to adequately protect and care for them.

5.1 agree to allow the Gallatin County Health Department to make unannounced visits a minimum of one time monthly to determine if my living conditions are sanitary and suitable for young children. Results of each visit will be made available to myself and to the DFS representative.

An evaluation on the mother was performed by Dr. Richard Traynham, a licensed clinical psychologist. Relying on standard psychometric tests, clinical interviews, and background information provided by the DFS, Dr. Traynham concluded that the mother suffered from a chronic, entrenched paranoid personality disorder. Dr. Traynham discussed the results of his evaluation with the mother. His conclusions were that therapy would not be beneficial at that time due to the entrenched nature of her paranoid personality disorder. He noted that the mother consistently refused to admit that she had any problems, making the prognosis for change and a beneficial therapeutic relationship poor. Consequently, Dr. Traynham supported the termination of the mother’s parental rights.

Visits to the mother’s home by the Gallatin County Health Department officials pursuant to the contract demonstrated an environment which was unsuitable for children. An open irrigation ditch ran adjacent to the mobile home, garbage and clutter surrounded the property, and the home itself had no running water and was filthy and cluttered. During one visit, the mother fled from the home to avoid the officials and was found waist deep in the water, hiding behind a tree. She returned to her home at the request of the officials. The mother later moved to another mobile home which was in an adult’s only section of the park. When asked by the manager if she intended to bring her children to live with her, she responded that she intended to leave the state upon reobtaining custody of the children.

There was substantial testimony regarding the failure of the court-ordered treatment plan. The stated goal of the plan was to assist the mother’s parenting abilities. It addressed changing behavior to accept responsibility for the children, and to make the home environment healthy and safe. The testimony indicated that the home environment continued to be grossly inadequate in terms of health and safety, and that the mother continued in her denial of any parenting difficulties, including that J.R. had ever been abused. When the treatment plan was initiated by the court, the condition of the mother’s mental state was not known. Upon psychiatric evaluation, it became apparent that the mother’s mental illness was of such a nature that further mental counseling would be of little therapeutic benefit. Under these circumstances, the treatment plan implemented in the mother’s case was appropriate.

Substantial evidence was presented that the children were abused and neglected; that the mother’s mental state rendered her an unfit parent; and that the situation was not likely to change within a reasonable time. Evidence showed (1) that the mother’s residences were consistently unsuitable for children; (2) that J.R. was dirty and evidenced social and scholastic impediments while in the mother’s care, and that marked improvement occurred upon removal from her care; and (3) that the mother showed a serious ambivalence in regard to her role as a mother, a lack of good judgment and an incapacity to provide long-term care and protection for her children. The decision of the district court to terminate parental rights will not be disturbed on appeal unless there is a mistake of law or a finding of fact not supported by substantial evidence that would amount to a clear abuse of discretion. Matter of S.P. (1990), 241 Mont. 190, 786 P.2d 642. There is substantial, credible evidence in this case to support the District Court’s conclusion that J.R. and S.D. are youths in need of care, that the treatment plan was unsuccessful, and that the mother’s condition is unlikely to change within a reasonable time. Accordingly, we affirm the judgment of the District Court.

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


author: JUSTICE McDONOUGH CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. STEPHEN DALE CRIST, Defendant and Appellant.
    No. 91-424.
    Submitted on briefs Apr. 2, 1992.
    Decided June 11, 1992.
    As Clarified Aug. 13, 1992.
    49 St.Rep. 525.
    253 Mont. 442,
    833 P.2d 1052.

      For Appellant: John E. Smith and Marcia M. Jacobson, Public Defender’s Office, Missoula.
    For Respondent: Marc Racicot, Attorney General, Carol Schmidt, Assistant Attorney General, Helena; and Robert L. Deschamps, III, County Attorney, Missoula.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from the Fourth Judicial District, Missoula County. Defendant, Stephen Crist (Crist) appeals from a ruling of the District Court allowing evidence of ‘other acts’ to be admitted under Rule 404(b), M.R.Evid. Subsequently, a jury found Crist guilty of sexually assaulting 9 year old B.L. We reverse.

The issues for our review are:

I. Did the District Court err by admitting ‘other acts’ evidence to be presented to the jury through the testimony of Kathy Lamb?

II. Did the District Court err by denying Crist’s request for psychological evaluation of the complaining witnesses by a qualified expert of Crist’s choosing?

Crist was charged with three counts of sexual assault. In the first count he was charged for sexual contact without consent for touching 9 year old B.L. on the chest and in the vaginal area with his hand. Count two alleged that Crist sexually assaulted B.C., Crist’s 8 year old son, by fondling his penis. Count three alleged Crist sexually assaulted J.L., a 14 year old baby sitter, by fondling her breasts.

The State, pursuant to the requirements of State v. Just (1979), 184 Mont. 262, 602 P.2d 957, filed a “Notice of Intent to Introduce Evidence of Other Acts” seeking to admit alleged incidents of sexual assault upon Kathy Lamb (Lamb). The notice provided that the State would seek to introduce evidence of‘other acts’:

for the purpose of proving motive, intent, preparation, plan, knowledge, absence of mistake or accident, or any other permissible factor such as consciousness of guilt.

The State further provided that the evidence of “other acts” expected to be presented consisted of the following:

On or about the fall of 1984 the defendant touched the breast and legs of Kathy Lamb, d/o/b July 24, 1971, on approximately twelve different occasions. One time he showed her a pornographic magazine and on another occasion he gave her an alcoholic beverage and joked that he would get her drunk and then “take advantage” of her. Later the same night he tried to get her to dress in a nightgown. The touching all occurred when she was in bed and he entered the bedroom and reached under her covers.

The court allowed the evidence to be introduced and at trial Lamb testified to each of the prior acts as listed above. However, Lamb did not recall defendant having touched her breasts but did testify that on three or four occasions (rather than the 12 described in the notice) Crist had come into the room where she was sleeping (with B.L.), put his hand under her covers and rubbed her upper leg. Crist was only found guilty of the charges involving B.L.

Rule 404(b), M.R.Evid., provides that:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The general Rule 404(b), M.R.Evid., must be strictly enforced, except where clearly justified and exceptions to the rule must be carefully limited. Just, 184 Mont. at 271-272, 602 P.2d at 962, citing State v. Tiedemann (1961), 139 Mont. 237, 242-243, 362 P.2d 529, 531. We have developed four substantive criterion for the admission of evidence of other acts or crimes. State v. Just (1979), 184 Mont. 262, 602 P.2d 957; State v. Matt (1991), 814 P.2d 521, 48 St. Rep. 614. The so called “Modified Just Rule” requires that:

1) there is a similarity between the crime charged and the previous crime, act or wrong;
2) the other crime, act or wrong must not be remote in time;
3) the evidence of other acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; and
4) a determination that the probative value of the evidence is not substantially outweighed by the prejudice to the defendant.

When reviewing evidentiary rulings, this Court will determine if the District Court misused or abused its discretion. Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601. Absent a showing of abuse of discretion, the District Court’s determination will not be overturned. State v. Oman (1985), 218 Mont. 260, 264, 707 P.2d 1117, 1119-20. On review, we will apply the Just criterion to the facts of the present case.

The first requirement of the Modified Just Rule is that there be a similarity between the crime charged and the prior act. Here the crime charged was the perpetration of sexual assaults upon an 8, 9 and 14 year old child. In State v. Tecca (1986), 220 Mont. 168, 714 P.2d 136, we held that a prior act need not be identical to the offense committed but that there must be a sufficient similarity. In Tecca, the crime charged was the sexual assault of an 11 year old who was sleeping in the defendant’s house. We determined that evidence of other children who had awakened in defendant’s house to find defendant sitting next to their bed in his underwear bore sufficient similarity to the crime charged to uphold its admission. On the basis of Tecca, we refuse to adopt Crist’s argument that a prior act in order to be admissible in a sexual assault case must involve actual “touching”.

In State v. Long (1986), 223 Mont. 502, 726 P.2d 1364, we determined that defendant’s having “rubbed” the clothed bottom of a 5 year old was sufficiently similar to the crime charged of pulling down the pants of two four year old children and rubbing their vaginas. We noted that sexual abuse of children takes subtle forms and deferred to the perceptions of the trier of fact to properly admit the testimony.

In the instant case, Lamb testified that Crist assaulted her late at night in the same bed in which Crist assaulted B.L. Lamb testified that Crist rubbed the inside and outside of her thighs in an attempt to “move his hand up.” We conclude that this act is sufficiently similar to the assault perpetrated on B.L. to uphold its admission. See also State v. Gilpin (1988), 232 Mont. 56, 756 P.2d 445. We now apply Lamb’s testimony, regarding Crist’s touching her, to the remaining Just criterion.

Whether “other acts” evidence is too remote is directed to the discretion of the District Court to determine whether a remoteness is so great that the proffered evidence has no value. Here, the acts about which Lamb testified appear to have occurred approximately four years prior to the act against B.L. We have refused to establish an arbitrary time limit for admitting prior acts. Tecca, 220 Mont. at 173; State v. Medina (1990), 245 Mont. 25, 30, 798 P.2d 1032, 1036. In similar cases we have determined that remoteness does not bar admission where the intervening period of time is three and one half years, State v. Stroud (1984), 210 Mont. 58, 71, 683 P.2d 459, 466; five years, State v. Eiler (1988), 234 Mont. 38, 48, 762 P.2d 210, 217; and nine years where there has been a “continuing pattern of similar conduct.” Tecca, 220 Mont. at 172.

We conclude that Lamb’s testimony is not too remote and that the District Court acted within its discretion by allowing its admission. Furthermore, we conclude that Lamb’s testimony regarding Crist’s touching her tends to establish Crist’s intent to commit sexual acts with minors, and therefore satisfies the third prong of the Just test.

The fourth prong of the Just test requires that the probative value of the evidence is not substantially outweighed by unfair prejudice to the defendant. We have clarified that unfair prejudice occurs when the evidence is offered to “horrify, evoke sympathy or increase a desire to punish and whose probative value is slight.” State v. Paulson (1991), 817 P.2d 1137, 1144, 48 St.Rep. 838, 841. We again conclude the District Court acted within its discretion and uphold the admission of Lamb’s testimony regarding Crist’s touching her.

The remaining acts to which Lamb testified, we conclude, fail to reach the requisite standard of sufficient similarity. Showing Lamb a pornographic magazine, teasing her about getting her drunk and “taking advantage of her,” and attempting to get her to dress in a nightgown are innuendos too broad to meet the standard of similarity. We cannot say that these incidents are similar to the actual assaults with which Crist is charged. The record is void of Crist having ever acted similarly towards any of the alleged victims. Not inconsistent with Long, we continue to recognize that sexual abuse of children takes subtle forms. However, the ‘other acts’ admitted in the instant case cannot all be properly characterized as sexual abuse. These acts are, however, evidence of character. These innuendos would tend to distract the trier of fact from the main question of what actually happened on the occasions charged. Therefore, we conclude, with the exception of Crist’s touching Lamb while she was in bed, Lamb’s testimony lacks the requisite similarity to the crime charged and therefore fails the first prong of the Just test and is inadmissible character evidence. The District Court is reversed and the case remanded for a new trial.

Because we reverse, we need not address Crist’s claim that the State failed to provide proper notice of which purpose the State intended to introduce the “other acts” evidence. However, we reiterate our previous holding that the purposes listed in Rule 404(b), M.R.Evid., may not be listed in “shotgun” fashion but instead the notice must provide the specific purpose upon which a party intends to offer “other acts” evidence. See State v. Croteau (1991), 248 Mont. 403, 812 P.2d 1251.

Lastly, we turn to Crist’s request to have the District Court compel a psychological evaluation of B.L. by an expert of his choosing. Contrary to Crist’s contentions, no legal authority exists in Montana to compel a victim in a sexual assault case to be examined by a defendant’s psychologist. State v. Liddell (1984), 211 Mont. 180, 685 P.2d 918. We addressed this issue in State v. Gilpin (1988), 232 Mont. 56, 756 P.2d 445, wherein we held:

The defendant cannot force psychological evaluation of a child

victim of sexual assault.

We are not persuaded by Crist’s constitutional arguments that he is being denied his right to reciprocal discovery. We decline to hold that denial of a request to compel a psychological examination of a child sexual assault victim jeopardizes defendant’s constitutional rights. We hold the District Court did not abuse its discretion by denying Crist’s request to compel psychological evaluation of B.L.

JUSTICES GRAY, TRIEWEILER and GRAY concur.

CHIEF JUSTICE TURNAGE

dissenting:

I respectfully dissent from the majority opinion reversing the conviction of Stephen Dale Crist. Crist was found guilty on March 26, 1991, by a Missoula County jury of sexual assault upon a nine-year-old girl, B.L., committed between November 15, 1989, and January 31, 1990.

The majority opinion approves the admissibility of prior act testimony given at the trial by K.L., sister of B.L., that Crist sexually assaulted her in 1984 when K.L. was thirteen years old. Crist was not charged with this assault. I agree with the majority opinion’s holding that this testimony of a prior act was admissible and that the requirements of the “modified Just rule” with relation to this prior act had been satisfied.

The majority opinion, however, reverses the conviction based upon testimony of K.L., that she was subjected to three other prior acts of Crist.

It must be noted that the three other prior acts, which the majority holds to be inadmissible and reversible error, all occurred within a short span of time before the prior act of sexual assault by Crist upon K.L. which the majority held to be admissible.

The testimony of K.L. relating to these three other prior acts, taken from the trial transcript of the direct testimony of K.L., is as follows:

Q. Were there any other incidents involving the Defendant that you can recall?
A. Yeah, I went over to the house one night, and I was sitting there and on the floor watching TV, and I don’t remember how this started, but Steve said something like — yeah, right in front of Collette he said, ‘Yeah, I’m going to —” I’m stumped. I can’t remember.
He goes, “I’m going to get her drunk and take advantage of her,” and Collette was sitting right there, and they just kind of laughed about it, and they go, “Well, we’re going to bed now,” and I said, “Okay.”
And I was just watching TV. So Steve came back out a few minutes later, and he brought this nightgown out, and he goes, “Come here,” and he grabs me and takes me into the bathroom, and he said, “Put this on,” and I went, “No.” Then he walked out and he got mad, and that was the end of it.
Q. Did anything else happen, either before or after this, involving the Defendant?
A. What do you mean?
Q. Did he ever pick you up at Sentinel High School or Hellgate High School?
A. Yes.
Q. Can you explain to the jury about that incident?
A. Well, I was at work, and I was at Human Resources, and I called up because I wanted to spend the day with [B.L.], my sister. So I called up, and I said, “Well, Steve, will you bring me over so I can see [B.L.]?” And he said, “Sure.” He said, “There’s something I want you to do, and I will pay you for it.” And I said, “Okay.” He goes, ‘Well, I will meet you at Hellgate.” I did [sic], “Okay.”
So he picked me up at Hellgate, and when I got in the truck, I go, Well, what was it you wanted me to do?” He goes, “I’ll just tell you later,” and I go, “What, clean the house, clean dishes, some sewing?” And he goes, “No,” and I go “Um.” So he said, “I’ll tell you when we get back to the house,” and I go, “Okay.”
So when we get back to the house, he was cleaning out the camper, either to go camping or just got back, and after that he goes, Well, why don’t you come in here and sit and talk to me,” and I said, “Okay.”
Q. In where?
A. In the camper — because we never had any problems before this. We had always gotten along okay.
Q. So this incident with the camper was before he touched you?
A. This was before anything started. And so we were sitting in the camper just talking and everything. He said, “I want to show you something,” and he said, “I will be right back.” So he went in the house, came back in the camper, and he threw a magazine that was covered up on the table, and he went back in and he goes, “I’ll be back in a minute.” And so I uncovered it, and it was like a Penthouse or something like that.
Q. Then what happened?
A. He came back in and he goes, “What do you think?” [I] go, “What do you mean, what do I think?” And I went, “I don’t think so.” So I went in and kissed my sister and I left.

The majority opinion holds that the testimony of K.L. as to the three other prior acts fails to reach the requisite standard of sufficient similarity and is only evidence of Crist’s character. I disagree with this analysis.

The showing of a pornographic magazine to K.L., then a thirteen-year-old girl, stating that he was “going to get her [K.L.] drunk and take advantage of her” and telling her to take her clothes off and put on a nightgown are indeed subtle forms of grooming a child for an act of sexual abuse. The sexual assault to which K.L. testified Crist subjected her followed very closely after his three other acts grooming K.L. for the sexual assault that followed.

If, as the majority opinion holds, the actual sexual assault upon K.L. is admissible as a prior act of Crist, then certainly these other three prior acts are also admissible as a grooming of K.L. for the sexual assault upon her, and cannot be held as not similar. These acts of grooming of K.L. are not only similar to the actual sexual assault committed upon her but are a prelude and inextricably a part of Crist’s plan and sexual assault.

Crist cannot complain that the admission of the testimony concerning the other three prior acts prejudiced him. He was charged in Count Two with sexual abuse against B.C., an eight-year-old boy, and the jury found him not guilty on this count. In Count Three, Crist was charged with sexual assault upon J.S., a fourteen-year-old girl, and the jury hung on this charge — eight for guilty and four for innocent. Count Three was thereafter dismissed.

I would affirm the jury conviction and sentence imposed by the District Court.


author: CHIEF JUSTICE TURNAGE JUSTICE GRAY

text:
    DALE DUANE LINK, Plaintiff and Appellant, v. CITY OF LEWISTOWN, Defendant and Respondent.
    No. 91-578.
    Submitted on briefs May 21, 1992.
    Decided June 11, 1992.
    49 St.Rep. 529.
    253 Mont. 451.
    833 P.2d 1070.

      For Appellant: Frederick F. Sherwood, Reynolds, Motl, Sherwood and Wright, Helena.
    For Respondent: Monte J. Boettger, Lewistown.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Dale Duane Link alleges that the City of Lewistown failed to hire him as a firefighter in violation of the Montana Human Rights Act and the Governmental Code of Fair Practices. The District Court for the Tenth Judicial District, Fergus County, granted partial summary judgment for the City. We reverse.

The issue is whether the District Court erred in ruling that, as a matter of law, § 7-33-4107, MCA, prohibits the City from hiring as a full-time firefighter an applicant over thirty-four years of age who had been serving as a part-paid firefighter and member of the Firefighters’ Unified Retirement System for the City since before he was thirty-four years of age.

Dale Duane Link began working as a part-paid firefighter for the City of Lewistown in 1981. Under the City’s personnel rules, regulations, and requirements, part-paid firefighters are appointed by the fire chief and must serve a six-month probationary period. They receive a monetary fee for hours or fractions thereof served in fighting fires and in training.

In 1988, Link applied for a position as a fall-time firefighter for the City. The position was not initially publicly advertised because the Fire Chief viewed the pool of qualified applicants to be the part-paid firefighters. Appointment to this position required approval by the Mayor and City Council. After testing and interviews, the Fire Chief sought approval of Link for the full-time position at the regular Lewistown City Council meeting of September 19, 1988.

At the meeting, Council members expressed concern with the interpretation of § 7-33-4107, MCA, which states that firefighters “shall not be more than 34 years of age at the time of original appointment.” The statute does not define “original appointment.” Link had served as a part-paid firefighter since he was thirty-one years old, but he was thirty-nine when he applied for the full-time position. It is undisputed that he met all other qualifications for the job. After discussion, the City Council directed that the full-time position be publicly advertised.

Link contacted an attorney who advised the City Council that a complaint was being filed with the Montana Human Rights Commission. The matter came before the City Council again at its October 17, 1988 meeting. The Fire Chief informed the Council that he had publicly advertised the position and that he still recommended that Link be approved for the position.

After discussion, the Council tabled the matter pending review by the City Attorney. At a meeting the following month, Council members agreed to seek the opinion of the Montana Attorney General on the applicability of the age limitation in § 7-33-4107, MCA.

The effort to obtain an Attorney General opinion was abandoned when Link filed a complaint before the Montana Human Rights Commission in November 1988. In January 1990, that complaint was dismissed and Link was authorized to file a complaint in District Court pursuant to §§ 49-2-509 and 49-3-312, MCA.

Link’s complaint in District Court alleges that the City discriminated against him on the basis of age, political beliefs, and retaliation. The court originally denied cross-motions for summary judgment. However, on the parties’joint request for reconsideration, it granted partial summary judgment to the City on the age discrimination issue. It relied on the City’s argument concerning the effect of the following language in § 7-33-4106, MCA:

The mayor ... shall nominate and, with the consent of the council

or commission, appoint... all firefighters.

The court reasoned that because the Mayor and City Council did not have input into Link’s appointment as a part-paid firefighter, his appointment to that position was not an “original appointment” under § 7-33-4107, MCA. The partial summary judgment was certified to this Court pursuant to Rule 54(b), M.R.Civ.P.

In this case, the ordinances and personnel rules of Lewistown, which were approved by the Mayor and City Council, provide that part-paid firefighters shall be appointed by the Fire Chief. We conclude that, having delegated its authority to appoint part-paid firefighters, the City is now estopped from denying the validity of that delegation of authority.

As a part-paid firefighter, Link has contributed to the Firefighters’ Unified Retirement System (FURS) since 1981. The legislative history of § 7-33-4107, MCA, shows that concern about the retirement and disability system was a key reason for setting a maximum age for original appointment as a firefighter. Because part-paid firefighters participate in FURS, it is reasonable to conclude that the legislature intended the maximum age provision to apply to part-paid firefighters as well as full-time firefighters.

This Court gives deference to interpretations of the Montana Human Rights Commission concerning the laws which it enforces. Harrison v. Chance (1990), 244 Mont. 215, 220, 797 P.2d 200, 203. The Commission has interpreted “original appointment” under § 7-33-4107, MCA, to include appointment as a “part-time volunteer firefighter.” Elliott v. City of Helena (1989), Montana Human Rights Commission Cause No. 8701003108.

A 1991 opinion of the Montana Attorney General further supports the conclusion that appointment as a part-paid firefighter may constitute an “original appointment” under § 7-33-4107, MCA. The Attorney General, at 44 Op. Att’y Gen. No. 8, pointed out that the limitation on age at the time of original appointment in § 7-33-4107, MCA, is preceded by the following language:

The state of Montana determines that age is a valid, bona fide occupational qualification for the position of firefighter because of the rigorous physical demands of the firefighting profession and the expectation of many years of emergency service.

This provision clearly refers to the right under § 49-1-102, MCA, to be free from discrimination based on age, as part of the Montana Human Rights Act. The Attorney General farther pointed out that the Ninth Circuit Court of Appeals has noted the inherent contradiction in a policy that establishes a maximum hiring age but makes no provision for hiring persons over that age with extensive similar experience. See E.E.O.C. v. County of Los Angeles (9th Cir. 1983), 706 F.2d 1039, 1043, cert. denied, 464 U.S. 1073. A statute should be interpreted to give a lawful result if possible. Grossman v. State Dept. of Natural Resources (1984), 209 Mont. 427, 682 P.2d 1319; § 1-3-232, MCA. The interpretation given to § 7-33-4107, MCA, by the District Court results in thé likelihood that the statute would violate laws prohibiting age discrimination.

For all of the above reasons, we hold that Link’s appointment as a part-paid firefighter was his “original appointment” under § 7-33-4107, MCA. Therefore, we reverse the partial summary judgment and remand to the District Court for further proceedings consistent with this Opinion.

JUSTICES HARRISON, HUNT, TRIEWEILER and McDonough concur.

JUSTICE GRAY

dissenting.

I respectfully dissent from the opinion of the majority. The issue before us requires a straightforward interpretation of the meaning of “original appointment,” as that phrase is used in § 7-33-4107, MCA, for purposes of determining whether Mr. Link met the statutory qualifications for firefighters at the time he was considered and rejected for a position as a firefighter in the City of Lewistown Fire Department. It is my view that the answer is equally straightforward: Mr. Link had not been appointed as a firefighter pursuant to § 7-33-4106, MCA, before he reached 34 years of age; therefore, he did not meet the statutory qualifications for firefighters under § 7-33-4107, MCA.

The majority relies briefly on five different bases, each set forth in from one to four sentences, to support its result in this case; this almost complete absence of discussion or analysis reflects the inherent weakness of the majority’s conclusion. An appropriate statutory analysis mandates a conclusion that the District Court did not err in granting summary judgment to the City. That analysis is set forth below, followed by a discussion of the flaws in the majority’s approach.

The statutes relating to municipal fire departments are contained in Title 7, Chapter 33, Part 41, Montana Code Annotated. Section 7-33-4101, MCA, authorizes and requires a fire department in every Montana city and town; those departments are to be organized and managed as mandated in part 41. The composition of municipal fire departments and the duties of the fire chief and assistant chief are set forth in §§ 7-33-4103 and 7-33-4104, MCA.

Section 7-33-4106, MCA, addresses the manner in which the chief, assistant chief and all firefighters of the department mandated by § 7-33-4101, MCA, must be selected; it specifically requires the mayor, with the city council’s consent, to appoint each of them to the position. Finally, § 7-33-4107, MCA, sets out the qualifications for the position of firefighter; it includes a determination by the Montana legislature that age is a bona fide occupational qualification for the position and goes on to require that firefighters “shall not be more than 34 years of age at the time of original appointment[.]”

It is the latter statutory requirement that is at issue in this case. The language is clear and plain. A person cannot be more than 34 years old when originally appointed to a firefighter position. Reading this language together with the preceding statutes governing municipal fire departments can produce only one result: the “original appointment” refers back to the only appointment process mentioned in the statutes — the appointment by the mayor and city council required by § 7-33-4106, MCA. Applying this straightforward statutory interpretation mandates a holding by this Court that the District Court did not err in ruling that the City was prohibited from hiring a firefighter into its municipal fire department who was over 34 years old at the time he was being considered and who had not previously been appointed to a firefighter position in the manner required by § 7-33-4106, MCA.

The majority relies in part on § 7-33-4109, MCA, which specifically relates to supplementary volunteer fire departments, in reaching its result. Nothing in that statute permits, much less requires, such a conclusion. No statutory language mandates the manner in which such volunteers are to be selected. The majority does not seem to understand what appears so clear to me from the very construction and organization of these statutes; namely, the very fundamental differences between full-time, professional firefighters and fire departments mandated by §§ 7-33-4101 through 7-33-4107, MCA, and supplementary volunteer firefighters and fire departments authorized under § 7-33-4109, MCA. The members of a volunteer fire department authorized by § 7-33-4109, MCA, are “enrolled members” of such a department, in contrast to firefighters “appointed” to municipal fire departments. The volunteers’ duties, by statute, are to assist paid fire departments. And, while it is true, as the majority suggests, that volunteers are “part-paid,” they are not permanent part-time employees as we ordinarily think of such part-time workers. Indeed, under § 7-33-4109, MCA, volunteers are paid only for such fires as they are called out to assist in fighting; that pay can be as little as $1 per hour of service.

The majority begins its shotgun approach to this case by suggesting that because the City’s rules and regulations require part-paid firefighters to be appointed by the fire chief, this “delegation of authority” regarding part-paid firefighters estops the City from denying the validity of that delegation as to full-time firefighters. As discussed above, the two situations are not at all comparable. No statutory hiring requirements exist vis-a-vis part-paid firefighters; a specific statutory requirement — appointment by the mayor and council — exists for hiring full-time firefighters. Furthermore, both the fire chief’s affidavit in this case and the City’s regulations make it clear that no delegation of authority exists regarding the hiring of full-time firefighters.

In addition, contrary to the majority’s suggestion in this regard, the City does not attempt to deny the validity of the rules and regulations regarding selection of part-paid firefighters by the fire chief with the approval of the full-time firefighters. As discussed, the two situations are entirely separate. Thus, there is nothing upon which the City can be estopped. Finally, the majority’s shorthand presentation of the estoppel basis of support for its conclusion does not indicate whether collateral estoppel, judicial estoppel or equitable estoppel is being applied, much less how the required elements for the purported estoppel are met in this case.

The majority next relies on the legislative history of § 7-33-4107, MCA, noting that concerns therein about the retirement and disability system formed part of the basis for the maximum age for original appointment as a firefighter. From this concern, and because part-paid firefighters like Mr. Link can contribute to the FURS, the majority states that it is reasonable to conclude that the legislature intended the maximum age to apply to part-paid and full-time firefighters. First, this conclusion seems to be a non sequitur. The question before us is not whether the age limitation applies to volunteers; the question is the meaning of “original appointment” in § 7-33-4107, MCA. In addition, it is not necessary to look to the legislative history to determine the meaning of that statutory language because the language is clear and plain and susceptible of only one meaning.

Assuming arguendo that resort to the legislative history is appropriate, it is my opinion that that history supports a result opposite from that reached by the majority. The concern relating to the firefighter’s retirement and disability situation found in the legislative history is that, due to the stamina and agility required and the very hazardous and stressful nature of firefighting, it is important for firefighters to be able to retire at a relatively young age — for the sake of both themselves and their colleagues. In connection with the amendment raising the maximum hiring age to 34 from 31, professional firefighters expressed concern that the amendment would move in the wrong direction, by preventing firefighters from retiring at an earlier age and keeping them working into more advanced years. These concerns are not applicable to part-paid firefighters.

The result reached by the majority in this case produces exactly the result over which concern is expressed in the legislative history; it allows volunteer firefighters to be hired on as full-time firefighters at any age. Under the majority’s result, as long as a volunteer firefighter has been selected for that duty before reaching 34 years of age, he or she qualifies for appointment as a full-time professional firefighter at age 40, 45, 50 or even later, notwithstanding the statutory maximum age. This total gutting of the maximum age qualification clearly is not what the Montana legislature intended.

The majority next relies on the Human Rights Commission’s Elliott decision. The problem in this regard is that the issue presently before the Court is not the same issue addressed by the Commission in Elliott.

The issue in Elliott was whether the age limit for time of original appointment meant when appointed to a specific fire department (that is, the one most recently being applied to) or to any fire department in Montana. The Commission essentially concluded that “original appointment” under § 7-33-4107, MCA, means any fire department in Montana as opposed to the fire department to which one currently is applying for a position. The Commission did not address, presumably because it was not raised, the issue before us here; namely, the meaning of “original appointment” under § 7-33-4107, MCA, in relation to the “appointment by mayor” requirement of § 7-33-4106, MCA.

Elliott involved a person who had been a part-paid firefighter elsewhere attempting to be hired as a full-time firefighter in the City of Helena Fire Department when he was more than 34 years old. Helena asserted that “originally appointed” meant, in that case, first hired as a firefighter (including as a part-paid firefighter) by the City of Helena. Elliott asserted, and the Commission concluded, that the phrase meant first hired by any fire department in Montana. The Commission was correct in ruling that the original appointment language is not location specific and, if the same issue were before us in this case, I would give that conclusion deference. But the two issues are not the same; therefore, Elliott is not applicable here.

The majority next states that an Attorney General’s opinion supports a conclusion that appointment as a part-paid firefighter “may” constitute an original appointment under § 7-33-4107, MCA. The Attorney General’s opinion provides no support for such a conclusion. Neither the Attorney General’s opinion nor the factual situation on which it is based relates in any way to part-paid firefighters.

The fifth and final basis for the majority’s conclusion relates to age discrimination. As with its estoppel position, the majority’s conclusion that the District Court’s interpretation of § 7-33-4107, MCA, results in the “likelihood” that the statute would violate “laws” prohibiting age discrimination is, at best, shorthand. The majority does not indicate which laws would be violated or provide any analysis as to how the facts of Mr. Link’s case would result in such a violation.

In this regard, it should be noted that the situation before us does not violate the federal Age Discrimination in Employment Act. Under the ADEA, it is not unlawful for a political subdivision employer to refuse to hire an individual because of the individual’s age if the refusal to hire is (1) with regard to employment as a firefighter and the individual has attained the maximum hiring age in effect under applicable state law on March 3,1983, and (2) pursuant to a bona fide hiring plan that is not a subterfuge to avoid the purposes of the ADEA. 29 U.S.C. § 623(j). The maximum hiring age of 34 years was in effect in Montana on March 3,1983, and nothing in this case suggests that the limitation is a subterfuge.

In summary, it is my view that Mr. Link was not appointed as a firefighter pursuant to § 7-33-4106, MCA, before he reached the maximum hiring age for that position. As a result, he did not meet the statutory qualifications for a full-time firefighter. I would affirm the District Court.

JUSTICE WEBER joins in the foregoing dissent of JUSTICE GRAY.


text:
    LYLE D. THOMSEN, Plaintiff and Appellant, v. STATE OF MONTANA, acting by and through its DEPARTMENT OF HIGHWAYS, Defendants and Respondents.
    No. 90-605.
    Submitted on briefs Mar. 26, 1992.
    Decided June 15, 1992.
    49 St.Rep. 533.
    253 Mont. 460.
    833 P.2d 1076.

      For Appellant: Donald R. Murray; Murphy, Robinson, Heckathorn & Phillips, Kalispell
    For Respondent: Betsy Brandborg, Special Assistant Attorney General, Risk Management & Tort Defense Division, Helena
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Plaintiff appeals from the judgment entered in the District Court, Eleventh Judicial District, Flathead County, holding that the State of Montana was not liable for the injuries to the plaintiff. We affirm in part and reverse in part.

The issues on appeal are:

1. Whether the District Court erred in limiting testimony of the plaintiff’s accident reconstruction expert.

2. Whether the District Court erred in permitting defense counsel to question witnesses regarding the availability of medical and rehabilitation services by the Veterans Administration, in light of the order in hmine prohibiting collateral source evidence.

On February 5, 1980, Lyle Thomsen was driving from Whitefish to Kalispell. Thomsen entered a section known as the LaSalle Road, which was under construction. After traveling southbound on the road for approximately one-half mile, Thomsen’s vehicle began to leave the road, so that the right tires were about three feet right of the fog line or edge line. The ditch adjoining the road had flooded and frozen. At that point, the right tires were riding on the ice. The ice gave way, and as Thomsen attempted to regain the road, his vehicle went into a 180 degree spin, crossed the centerline, and was struck from behind by an oncoming vehicle. Thomsen suffered multiple injuries, including permanent brain injury.

On January 28, 1983, Thomsen filed suit against the State of Montana, Flathead County, and McIntyre Construction Company — the company in charge of the highway reconstruction. Flathead County was subsequently granted summary judgment on April 13, 1990. Trial commenced on June 14,1990. The jury returned a special verdict, finding that (1) McIntyre Construction was not negligent; and (2) that the State of Montana was negligent, but that its negligence did not cause plaintiff’s damages. Thomsen appeals from that judgment.

Thomsen asserts that the District Court erred in handling the testimony of his accident reconstruction expert. Thomsen maintains that the expert, a physics professor at Montana State University, was precluded from explaining fundamental laws of physics, and was not allowed to give his opinion on the angle of the tires on Thomsen’s vehicle at the time they broke through the ice. The scope of expert testimony and the trial court’s role in regulating it is governed by Rule 702 of the Montana Rules of Evidence. Rule 702 provides:

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

This Court has stated that the trial court is granted wide discretion in determining whether to admit expert testimony. Simonson v. White (1986), 220 Mont. 14, 713 P.2d 983. Further, the court may, in its discretion, limit the scope of expert testimony. Lindberg v. Leatham Bros., Inc. (1985), 215 Mont. 11, 693 P.2d 1234. Accordingly, we find no error in the court’s determination regarding these aspects of the expert testimony.

Thomsen further asserts that his expert was prevented from testifying to standards contained in the American Association of State Highway Transportation Officials’ manual, entitled Highway Design and Operational Practices Related to Highway Safety, despite the fact that compliance with current AASHTO manuals" was a requirement of the construction contract between the State and McIntyre. However, the record discloses that plaintiff was unable to provide foundation for introduction of the manual, due to questions about whether it was in effect at the time of the accident. After a subsequent offer of proof, the court ruled that the expert could be recalled to lay additional foundation. Plaintiff failed to recall his expert witness. Therefore, the District Court did not abuse its discretion by rejecting the offered evidence.

Thomsen next contends that the court erred in allowing questions concerning collateral sources, in direct contravention of plaintiff’s motion in limine. In spite of the motion and subsequent objection, three separate witnesses were allowed to respond to questions regarding the availability of medical and rehabilitation services by the Veterans Administration. Thomsen claims that the main thrust of the questioning was to suggest to the jury that insurance coverage existed, and that any probative value was clearly outweighed by the possibility of unfair prejudice.

We agree with the plaintiff. Plaintiff’s motion in limine, granted before commencement of trial, sought to exclude, among other things, any testimony, evidence, or comment that any remuneration was received by Mr. Thomsen from a collateral source, or that he may have had medical insurance. When counsel for McIntyre Construction first delved into the matter of VA benefits, Thomsen objected. On three separate occasions, the court allowed the questioning which established the availability of VA benefits.

Courts have long recognized the strong likelihood of prejudice resulting from the introduction of collateral source evidence. Montana recognized the doctrine in Goggans v. Winkley (1972), 159 Mont. 85, 92, 495 P.2d 594, 598, wherein this Court stated that “[ijnjection of collateral matters involving transactions between others ... is collateral inadmissable evidence under the collateral source doctrine.”

Other courts have further expounded on the doctrine. In Hrnjak v. Graymar, Inc. (Cal. 1971), 484 P.2d 599, 604, the California Supreme Court stated:

The potentially prejudicial impact of evidence that a personal injury plaintiff received collateral insurance payments varies little from case to case. Even with cautionary instructions, there is substantial danger that the jurors will take the evidence into account in assessing the damages to be awarded to an injured plaintiff. Thus, introduction of the evidence on a limited admissibility theory creates the danger of circumventing the salutary policies underlying the collateral source rule. Admission despite such ominous potential should be permitted only upon such persuasive showing that the evidence sought to be introduced is of substantial probative value.

The Alaska Supreme Court has recognized the doctrine’s importance to a greater extent. In Tolan v. ERA Helicopters, Inc. (Alaska 1985), 699 P.2d 1265, 1267, the court stated:

[The doctrine] also has an evidentiary role, excluding evidence of other compensation on the theory that such evidence would affect the jury’s judgment unfavorably to the plaintiff on the issues of liability and damages. [Emphasis added.]

Defendants contend that the evidence was harmless because the jury found that the State’s negligence was not the proximate cause of plaintiff’s damages. As the court in Tolan stated, introduction of collateral source evidence may be much more damaging to a plaintiff’s case than just affecting the jury’s judgment regarding damages. We agree with the Tolan court’s recognition that such evidence can have an impact upon a jury’s verdict on the issue of liability, as well as damages. We conclude that the District Court erred in allowing the admission of collateral source evidence, and that such error is reversible.

Accordingly, the judgment in favor of the State of Montana is reversed and this cause remanded for a new trial consistent with this opinion.

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