author: JUSTICE NELSON JUSTICE TRIEWEILER

text:
    ELMER R. BALDRIDGE, Petitioner and Appellant, v. BOARD OF TRUSTEES, ROSEBUD COUNTY SCHOOL DISTRICT #19, COLSTRIP, MONTANA and NANCY KEENAN, Superintendent of Public Instruction, Respondents and Respondents.
    No. 93-244.
    Submitted on Briefs September 23, 1993.
    Decided March 10, 1994.
    51 St.Rep. 166.
    264 Mont. 199.
    870 P.2d 711.

      For Petitioner and Appellant: Charles F. Moses, Moses Law Firm, Billings.
    For Respondents and Respondents: Charles E. Erdmann, Erdmann Law Offices, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from an order of the Thirteenth Judicial District Court, Yellowstone County, affirming the State Superintendent of Public Instruction’s decision reversing the Acting County Superintendent’s order to reinstate the Petitioner/Appellant Elmer Baldridge (Baldridge) with pay. We remand for further proceedings consistent with this opinion.

We determine that this case turns upon a single issue — whether the District Court correctly affirmed the decision of the State Superintendent reversing the decision of the County Superintendent and upholding the decision of the Board of Trustees.

Baldridge was employed by the Respondent Board of Trustees of Rosebud County School District #19, Colstrip, Montana (Board), as a tenured teacher of the sciences. On approximately March 30, 1988, an incident occurred in Baldridge’s classroom which led to a complaint by parents in the form of a written letter received by the principal of Colstrip High School, Eileen Pearce (Pearce).

The incident, referred to as the “glove incident,” was reported in the parents’ complaint letter to the principal as follows:

At the beginning of second period Chemistry II class, March 30, 1988, the teacher, Mr. Baldridge, was looking at some lab equipment on the counter by the sink. He picked up a rubber glove, put it on his hand, raised his hand up and said to the students, “Any female volunteers from the audience?”

Pearce interviewed students from the class and on April 13,1988, wrote a letter to Baldridge stating that he should be suspended with pay pending an investigation into the incident. She also sent a copy of the letter to the district superintendent Harold Tokerud (Tokerud).

Tokerud wrote a letter to Baldridge on April 14,1988, stating that he was being suspended with pay pending a complete investigation. Tokerud then hired Paul Stengel, a retired Superintendent of Schools at Custer County, to investigate the incident.

On April 29,1988, Tokerud notified the Chairman of the Board of Trustees that he had suspended Baldridge with pay and had conducted an investigation into the “glove incident.” The letter stated that:

I find I must recommend the dismissal of Mr. Baldridge pursuant to Section 20-4-207, MCA for unfitness, incompetence, and violation of the adopted policies of the trustees.

Tokerud also listed 12 incidents, including the “glove incident,” and stated that these incidents not only showed unfitness to teach and incompetence, but were also violations of § 49-2-307, MCA, § 49-3-205, MCA, Article II, Section 4 of the Montana Constitution and certain policies of the Colstrip Schools.

On May 16,1988, a special board meeting was convened to conduct a hearing on the recommendation to terminate Baldridge. Both Baldridge and the Board were represented by counsel. Argument and evidence were presented culminating in the Board’s vote to accept the district superintendent’s recommendation to dismiss Baldridge.

The Board’s decision was appealed to Acting County Superintendent of Schools for Rosebud County, Shirley Barrick (Barrick) on May 24, 1988. A hearing was held on August 22, 1988, at the Rosebud County Courthouse. Baldridge filed a Motion to Dismiss and a Motion for a Continuance. The Motion for a Continuance was denied, Baldridge filed an immediate appeal to the State Superintendent, and the hearing was recessed.

The case was remanded back to Barrick, and a second hearing was held on May 30, 31, and June 1,1989. Barrick issued her findings of fact, conclusions of law and order on November 16, 1989, ordering Baldridge’s reinstatement with pay. Barrick found errors in due process committed by the Board in handling the action. In addition, her Conclusion of Law #2 stated that:

[t]his Acting County Superintendent does not approve of the conduct displayed by the Petitioner on March 30,1988 but all other accusations heard in hearing were hearsay and interpretations without any previous written documentations in personnel file or on evaluations.

The Board again appealed to the State Superintendent, Nancy Keenan (Keenan), who vacated Barrick’s judgment and remanded the case with instructions for reconsideration. Barrick was directed to consider all evidence before her and make a determination as to whether Baldridge was terminated for good cause. Keenan stated that Barrick only considered evidence surrounding the “glove incident,” and did not assess the credibility of the witnesses nor did she weigh the evidence concerning the other alleged inappropriate comments and jokes testified to at the hearing. Keenan further directed Barrick to consider testimony from all students based on their own perceptions and knowledge. Finally, Keenan stated that there was no evidence to show that written documentation of disciplinary measures was required by the Board prior to dismissal.

In Barrick’s second findings of fact, conclusions of law and order, dated April 17, 1991, she again ordered that Baldridge be reinstated with pay. She again determined that the Board violated § 20-4-207(3)(a), MCA, and did not afford Baldridge due process. This decision did not differ greatly from Barrick’s first opinion, although some findings of fact and conclusions of law, none substantial, were added to the second opinion.

The Board again appealed to Keenan who reversed Barrick’s order. Keenan determined that “[n]o rights of Baldridge have been prejudiced by the procedural actions.” She also found that Barrick continued to ignore the directive to consider the testimony of the students derived from their personal knowledge and perceptions.

Keenan stated that the incidents cited by Tokerud did occur according to her review of the transcript, but “[i]t remained to be determined whether they were sufficient to reach a standard of good cause for dismissal.” She concluded that the decision as to whether there was good cause to dismiss a teacher should be left to the officials at the local level. Here, “the Colstrip Board of Trustees, after hearing, decided that the behavior exhibited by Baldridge was not acceptable in their district.” She continued, “[cjonclusions of Law #3 and #4 are arbitrary and capricious. Therefore, the decision of the acting county superintendent contains no conclusion of law which supports her decision to reverse the decision of the board of trustees. The acting county superintendent has abused her discretion.”

Baldridge appealed Keenan’s decision to the Thirteenth Judicial District Court, which affirmed. In its finding of fact #10, the court found that “[o]n January 10, 1992, the State Superintendent found that ‘good cause’ existed for the termination of Baldridge and reversed the County Superintendent’s decision.” It further determined that a review of the whole record demonstrated that the incidents at issue did occur. The court then made the following conclusions of law which apply to the present discussion:

2. This Court’s role in reviewing an administrative decision is to review the whole record to determine if the administrative findings were clearly erroneous or if the County and/or the State Superintendent’s Conclusions of Law constitute an abuse of discretion. Section 2-4-704(2), MCA, Booth v. Argenbright, 225 Mont. 272, 731 P.2d 1318 (1987); Harris v. Trustees, 241 Mont. 274, 786 P.2d 1164 (1990).
3. In reviewing the whole record, it is evident that the State Superintendent’s findings, that the School Board followed the proper procedure to terminate Baldridge, is not clearly erroneous, arbitrary or capricious. In fact, there is substantial evidence in the record to support these findings. At all stages in these proceedings, Baldridge has been afforded substantial due process and hence the alleged procedural errors are immaterial as both the School Board and the District Superintendent had the power to proceed and there is no violation of Baldridge’s due process guarantees.
4. The State Superintendent found that the County Superintendent’s conclusions 3 and 4 were arbitrary and capricious and therefore constituted an abuse of discretion. She further found that without these conclusions the decision and order of the County Superintendent must be reversed. These findings are supported by substantial evidence in the record.
5. Neither the State Superintendent nor this Court has substituted their judgment for that of the County Superintendent as to fact, but has reviewed the whole record and determined that the administrative findings were “clearly erroneous.”

Finally, the court concluded “that the decision of the State Superintendent of Public Instruction in this cause is, AFFIRMED and •that the decision of the board of trustees is, UPHELD.” This decision is the subject of the instant appeal.

In Throssel v. Board of Trustees (1991), 248 Mont. 392, 396, 812 P.2d 767, 769, we set forth our standard of review for contested cases involving teacher dismissals as follows:

Our function as an appellate court reviewing an administrative decision is not to substitute our judgment for that of the County [or State] Superintendent but rather to review the whole record to determine if the administrative findings are clearly erroneous or if the County Superintendent’s [or State Superintendent’s] conclusions of law constitute an abuse of discretion.

The proper standard of review for administrative findings of fact is, indeed, to determine whether they are clearly erroneous, but in Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 803 P.2d 601, we correctly determined that our standard of review for agency conclusions of law would be whether the agency’s interpretation of the law was correct. We stated that “[t]he reasoning for simply determining if the [agency’s] conclusions are correct is that no discretion is involved when a tribunal arrives at a conclusion of law — the tribunal either correctly or incorrectly applies the law.” Steer, Inc., 803 P.2d at 603. We hereby clarify Throssel and will apply the Steer, Inc. standard to our review of conclusions of law in contested cases between school districts and teachers.

INTRODUCTION

As stated above, this case turns on a single issue — whether the District Court correctly affirmed the decision of the State Superintendent reversing the decision of the County Superintendent and upholding the decision of the Board of Trustees. This review must involve a discussion of the State Superintendent’s review and her ultimate decision as well as the County Superintendent’s decision. Having carefully reviewed the record and applied the proper standard of review, we conclude: first, the District Court erred in affirming Keenan’s decision; second, Keenan also erred when she substituted her own judgment for that of Barrick in drafting her decision; and third, Barrick erred when she did not follow the remand instructions from Keenan’s decision of September 26, 1990 wherein Keenan vacated Barrick’s first decision because the county superintendent’s findings of fact were not “sufficiently certain to enable [Keenan] to ascertain with reasonable certainty the factual basis and legal principle upon which the County Superintendent acted.” Accordingly, we remand this case to the District Court with instructions to remand the case to the State Superintendent. The State Superintendent must then remand the case to the County Superintendent with directions that she must carefully consider this case and draft findings of fact, conclusions of law and an order as mandated in § 2-4-623, MCA, and Rule 10.6.119, ARM. We now discuss the various levels of review and decision-making presented here and define the appropriate parameters for each decision issued.

DISCUSSION

I — THE COUNTY SUPERINTENDENT’S (Barrick’s) ORDER

A county superintendent’s review of the trustees’ decision to terminate a teacher must fall within the requirements set by § 2-4-623, MCA, part of the Montana Administrative Procedure Act. Section 2-4-623(1), (2) and (3), MCA, provides that:

(1) Afinal decision or order adverse to a party in a contested case shall be in writing or stated in the record. A final decision shall include findings of fact and conclusions of law, separately stated. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.
(2) Findings of facts shall be based exclusively on the evidence and on matters officially noticed.
(3) Each conclusion of law shall be supported by authority or by a reasoned opinion.

However, in the instant case, Barrick’s decision does not follow the requirements of § 2-4-623, MCA. Keenan, in her decision on appeal, states that Barrick, upon remand, did not comply with the mandate of Rule 10.6.119, ARM, (which follows § 2-4-623, MCA,) to issue “findings of fact accompanied by a concise and explicit statement of the underlying facts supporting the findings based exclusively on the evidence and supporting authority or reasoned opinion for each conclusion of law.” We agree.

Several of Barrick’s findings of fact are no more than conclusory statements, not supported by a concise and explicit statement of the underlying facts, as required by rule and statute. None of her conclusions of law are supported by authority or reasoned opinion. Clearly, the County Superintendent did not follow the proper statutory or administrative requirements and did not fulfill her responsibility to produce a well-reasoned final order, citing specific facts to support her conclusions of law. It is impossible to assess whether she erred in concluding that the Trustees did not follow due process in suspending and dismissing Baldridge and that Baldridge should have been reinstated in his teaching position, because she did not support her conclusions of law with authority or reasoned opinion based upon specific facts. We do not comment upon whether due process was followed by the Board nor do we pass judgment on whether Baldridge should have been terminated. We merely hold that the County Superintendent did not comply with the appropriate statutory and administrative requirements in writing her opinion. She did not follow Keenan’s instructions on remand. Barrick’s second opinion is no better than her first. The opinion is therefore invalid.

II — THE STATE SUPERINTENDENT’S (Keenan’s) DECISION

The state superintendent’s review of a county superintendent’s decision must be conducted pursuant to Rule 10.6.125, ARM. Rule 10.6.125, ARM, is almost identical to § 2-4-704, MCA, which establishes the standard of review for district courts. Rule 10.6.125, ARM, provides:

10.6.125 APPELLATE PROCEDURE — STANDARD OF REVIEW
(1)The state superintendent of public instruction shall be subject to the standard of review as set forth below and shall be confined to the record established at the factfinding hearing.
(2) In cases of alleged irregularities in procedure before the county superintendent not shown on the record, proof thereof may be taken by the state superintendent.
(3) The state superintendent, at his/her discretion or upon request, may hear oral arguments and receive written briefs.
(4) The state superintendent may not substitute his/her judgment for that of the county superintendent as to the weight of the evidence on questions of fact. The state superintendent may affirm the decision of the county superintendent or remand the case for further proceedings or refuse to accept the appeal on the grounds that the state superintendent fails to retain proper jurisdiction on the matter. The state superintendent may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the findings of fact, conclusions of law and order are:
(e) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record;
(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion;
(g) affected because findings of fact upon issues essential to the decision were not made although requested.

Keenan erred in reversing Barrick’s opinion, not because Barrick was correct in her conclusions, but because Barrick failed to follow statutory and administrative mandate in drafting her decision. Basically, Keenan could not review Barrick’s decision in accordance with the requirements of Rule 10.6.125, ARM, because Barrick’s decision was itself so deficient. Keenan should have again remanded to Barrick.

However, instead of remanding, Keenan, herself, determined that the Board substantially complied with due process and that “[n]o rights of Baldridge ... [were]... prejudiced by the procedural actions.” Keenan also concluded that Barrick abused her discretion because her decision contained no conclusions of law which would support her decision to reverse the Board of Trustees decision to terminate Baldridge.

In drawing the conclusions above, Keenan substituted her judgment for that of Barrick. Rule 10.6.125, ARM, provides that “[t]he state superintendent may not substitute his/her judgment for that of the county superintendent as to the weight of the evidence on questions of fact.” Johnson v. Beaverhead Cty. High Sch. D. (1989), 236 Mont. 532, 534-535, 771 P.2d 137, 138. See also Frazer School Dist. No. 2 v. Flynn (1987), 225 Mont. 299, 302, 732 P.2d 409, 411. Keenan found Barrick’s findings of fact to be inadequate so she determined independently that the Board followed due process when it terminated Baldridge and that Baldridge should not be reinstated. Keenan could not have arrived at her conclusions without substituting her judgment as the initial finder of fact for that of Barrick, in violation of Rule 10.6.119, ARM and § 2-4-623, MCA. As Keenan herself acknowledged, Barrick’s findings of fact were not comprehensive enough for review; essentially, Barrick’s decision was non-reviewable because she did not fully comply with the appropriate statute and rule setting forth the requirements for a county superintendent’s findings of fact and conclusions of law. Barrick did not comply with Keenan’s first remand instructions.

We appreciate Keenan’s frustration in reviewing for the second time on appeal, a decision that was as woefully deficient as the first. That frustration, however, must be outweighed by the necessity for each level of review to comply with the statutes and rules applicable to that level. In order for Keenan to comply with Rule 10.6.125, ARM, she must order Barrick to comply with Rule 10.6.119, ARM and § 2-4-623, MCA. Keenan’s only proper recourse in the present case was to again remand the case to Barrick with instructions to draft findings of fact accompanied by a concise and explicit statement of the underlying facts supporting the findings and conclusions of law supported by authority or a reasoned opinion. The county superintendent must first do her job before the state superintendent can do hers.

III — THE DISTRICT COURT DECISION

Keenan’s decision was appealed to the Thirteenth Judicial District Court. A review by a district court of a state superintendent’s decision is governed by § 2-4-704, MCA, which provides in pertinent part:

Standards of review. (1) The review shall be conducted by the court without a jury and shall be confined to the record. In cases of alleged irregularities in procedure before the agency not shown in the record, proof thereof may be taken in the court. The court, upon request, shall hear oral argument and receive written briefs.
(2) The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because:
(a) the administrative findings, inferences, conclusions, or decisions are:
(v) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;
(vi) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(b) findings of fact, upon issues essential to the decision, were not made although requested.

The District Court stated in its conclusion of law #3:

In reviewing the whole record, it is evident that the State Superintendent’s findings, that the School Board followed the proper procedure to terminate Baldridge, is not clearly erroneous, arbitrary or capricious. In fact, there is substantial evidence in the record to support these findings. At all stages in these proceedings, Baldridge has been afforded substantial due process and hence the alleged procedural errors are immaterial as both the School Board and the District Superintendent had the power to proceed and there is no violation of Baldridge’s due process guarantees.

Additionally, the court’s conclusion of law #4 provided as follows:

The State Superintendent found that the County Superintendent’s conclusions 3 and 4 were arbitrary and capricious and therefore constituted an abuse of discretion. She further found that without these conclusions the decision and order of the County Superintendent must be reversed. These findings are supported by substantial evidence in the record.

The conclusions of law stated above discuss the court’s review of the State Superintendent’s decision. The court determined that there was substantial evidence to support Keenan’s findings and that they were not clearly erroneous, arbitrary or capricious. However, as we stated recently in Trustees, Carbon County School District No. 28 v. Spivey (1993), [262 Mont. 513], 866 P.2d 208, 213:

[I]n order to review the decision of the state superintendent and ensure that she has correctly reviewed the county superintendent’s decision, the district court must review the findings and conclusions of the county superintendent. The district court must decide whether the county superintendent’s findings and conclusions were supported by reliable, probative and substantial evidence in the first instance in order to determine whether the state superintendent reviewed and correctly affirmed or reversed the decision of the county superintendent.

In the instant case, the District Court did not properly review Keenan’s decision because it did not base its review on whether the county superintendent’s findings of fact and conclusions of law were supported by reliable, probative and substantial evidence in the first instance. The district court must review the state superintendent’s decision by focusing on the county superintendent’s findings and conclusions to determine if they are supported by reliable, probative and substantial evidence and by then ensuring that the state superintendent’s decision correctly affirmed or reversed the county superintendent. Different statutory and administrative mandates apply to the county superintendent as the initial fact-finder and to the state superintendent’s level of review. The district court must ensure that the appropriate statutes and rules are complied with at each level.

When the county superintendent fails to comply with the applicable statute and rule in drafting her findings of fact, conclusions of law and order, neither the state superintendent nor the district court can “review” those findings of fact, conclusions of law and order and still comply with the requirements of the rules and statutes applicable to their levels. If a “review” is conducted under such circumstances, either the state superintendent or the district court or both wind up acting as the initial fact-finder, and the whole statutory appeal process collapses like a house of cards.

If, because the county superintendent’s decision is inadequate, the district court cannot conduct a meaningful review of that decision so as to determine whether the state superintendent conducted a proper review, then the district court must remand the case to the state superintendent. The state superintendent, in turn, must remand to the comity superintendent with instructions to draft and issue findings of fact, conclusions of law and order in compliance with the applicable statutes and administrative rules.

In the instant case, we cannot assure Baldridge that he has received his “day in court” when Barrick did not comply with statutes and administrative rules governing her findings of fact, conclusions of law and order. Therefore, this case is remanded to the Thirteenth Judicial District Court with instructions to remand the case to the State Superintendent of Public Instruction who will remand the case to the County Superintendent, who in turn will be charged with complying with the statutes and rules applicable in drafting her decision as discussed above. The county superintendent assigned this case must provide underlying facts to support the findings of fact and ensure that the conclusions of law are supported by authority or reasoned opinion.

We hold, therefore, that the District Court erred in affirming the State Superintendent’s decision. In so doing, we close with an observation.

While the appeal procedure in contested cases between teachers and school districts is, obviously, determined primarily by the legislature, this case serves as a perfect example of why that procedure in Montana should be the subject of future, careful legislative scrutiny. The present process, commencing with the initial decision of the board of trustees, through de novo hearing and review by the county superintendent, through administrative review by the state superintendent, through judicial review by the district court, through final appeal to this Court, is technical, cumbersome, time-consuming, costly, frustrating and inefficient.

The differing, technical statutory and administrative requirements at the various levels are, in themselves, confusing and difficult enough to comprehend. That, however, combined with the fact that the abilities, training and experience of county superintendents and their access to legal counsel fully familiar with school law vary widely, almost assures error at some level of the appeal process. Simply put, the current procedures serve no one well — neither teachers, school boards and administrations, county and state school authorities, nor the judicial system. And, with the present move across the State to cut costs by shifting county superintendents’ duties to other local government officials, an already unworkable situation will likely be made even worse. See also Yanzick v. School Dist. No. 23, Etc. (1982), 196 Mont. 375, 641 P.2d 431.

Reversed and remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and WEBER concur.

JUSTICE TRIEWEILER

specially concurring in part and dissenting in part.

I concur with the majority’s conclusion that the State Superintendent exceeded her scope of review by making factual determinations, and that the District Court erred by affirming the decision of the State Superintendent.

I dissent from that part of the majority decision which concludes that this case should be remanded to the County Superintendent for further findings of fact and conclusions of law.

After reviewing the issues presented to the County Superintendent, I conclude that her findings were sufficient to explain her conclusion that Elmer R. Baldridge should be reinstated and would, therefore, simply reverse the District Court and order entry of judgment consistent with the County Superintendent’s decision.

The only issue which the County Superintendent was called upon to decide was whether remarks which Baldridge was alleged to have made in the presence of students constituted good cause for his termination pursuant to § 20-4-207, MCA. That section provides that a teacher may be dismissed prior to the expiration of his contract for “immorality, unfitness, incompetence, or violation of the adopted policies of such trustees.”

In this case, the sole basis for allegations that Baldridge acted in a way to support his termination pursuant to that statute were complaints by a group of students that he made inappropriate remarks or gestures in the presence of them and other students. During the course of the hearing, Baldridge either denied making the remarks and gestures, or explained that his remarks were intended to mean something other than they were interpreted to mean by the students who complained. The County Superintendent was basically called upon to resolve conflicting testimony between Baldridge and several complaining students. It is clear from the following findings that those conflicts were resolved in Baldridge’s favor:

7. That the Petitioner was known to be “a thorn in the side” of the district superintendent and the board of trustees because he often challenged the discrimination against Native American students and because he chaired the CEA grievance committee in a number of successful complaints.
8. That the students who testified for the Respondent side seem to be part of a “clique” of friends, two ofwhom are children of school board members. This in addition to the conduct of the daughter of the complaining parents seems to make their testimony somewhat skeptical.
9. That the Petitioner has an excellent reputation as a teacher and has had only one negatory comment on an evaluation which stated that he should be more “tactful in his correspondence with the superintendent.”

It is clear from these findings that the County Superintendent found insufficient credible evidence to find or conclude that there was “good cause” for Baldridge’s termination.

While the findings and conclusions are not as comprehensive as they could be, the points they make are clear: (1) the School Board had an ax to grind with Baldridge; (2) the students who complained about Baldridge were associated with the School Board and were not credible; and (3) Baldridge had no other blemishes on his record which justified his termination.

While the majority is critical of the technical adequacy of the County Superintendent’s findings and conclusions, it should be kept in mind that the hearing process before a county superintendent was never intended to be the equivalent of a trial before a district court. Neither should county superintendents, who are not normally trained in the law, be held to the same standards of draftsmanship that we expect from district judges. The review process by a county superintendent, or in this case, an acting County Superintendent, is simply designed to provide a local, expeditious opportunity for an independent third party to resolve the frequent disputes which can arise between school boards and their employees.

Our concern when reviewing a decision of a county superintendent should simply be whether the factual basis for the decision is clear and supported by the record, and whether the decision is correct or incorrect as a matter of law. After reviewing the record, I conclude that the basis for the County Superintendent’s decision is clear, that her factual findings are not clearly erroneous, and that her decision was not incorrect as a matter of law.

Therefore, I would affirm her decision and remand this case to the District Court for entry of judgment consistent with the County Superintendent’s decision that Baldridge should be reinstated to his position.


source: Caselaw Access Project

author: JUSTICE WEBER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. GREGORY WING, Defendant and Appellant. and STATE OF MONTANA, Plaintiff and Respondent, v. JOHN JACOB LORENZ, Defendant and Appellant.
    Nos. 93-226 and 93-061.
    Submitted on Briefs December 2, 1993.
    Decided March 22, 1994.
    51 St.Rep. 223.
    264 Mont. 215.
    870 P.2d 1368.

      For Defendants and Appellants: Katherine M. Irigoin (Lorenz), Habedank, Cumming, Best & Savage, Sidney; Richard L. Burns (Wing), Glendive; William F. Hooks, Appellate Public Defender, Helena (Lorenz and Wing on appeal).
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena; Mike Weber, Richland County Attorney, Gary Ryder, Deputy County Attorney, Sidney.
   JUSTICE WEBER

delivered the Opinion of the Court.

Gregory Wing (Wing) and John Jacob Lorenz (Lorenz) were jointly tried by a jury in the Seventh Judicial District, Richland County. The jury convicted Wing of one count of sexual intercourse without consent and Lorenz of two counts of sexual intercourse without consent and one count of sexual intercourse without consent by accountability. This opinion consolidates the appeals of Wing and Lorenz from the judgments convicting them of these offenses. Lorenz also appeals a part of the District Court’s Judgment and Sentence which designates him a dangerous offender for the purpose of parole eligibility. We affirm in part, reverse in part and remand.

The questions presented for review by both defendants are:

I. Did the District Court abuse its discretion in restricting the defendants’ evidence of the victim’s past sexual conduct?

II. Did the District Court abuse its discretion by allowing the victim to testify about sexual acts committed by others who were not defendants in this trial?

In addition, defendant Lorenz presents the following additional issues for review:

III. Did the District Court abuse its discretion by restricting defendant Lorenz’ cross-examination of the victim?

IV. Did the District Court err in designating defendant Lorenz a dangerous offender for the purpose of parole eligibility?

On the evening of December 12,1991, Wing telephoned the victim, an 18-year-old high school senior, and asked if she wanted to attend a party with him that evening. The party was to be held for the occasion of Wing’s brother’s return to Sidney, Montana after a two-year absence. Although Wing would not tell the victim where the party was to be held, she nonetheless agreed to accompany him.

Instead of going directly to the party, Wing took the victim out of town to a location described as the “Lost Highway” where the two engaged in consensual sexual intercourse and then returned to town. Wing then drove to his parents’ home to determine whether his brother had arrived home. The victim waited in the car while Wing went indoors for a short time. Two other men, Mike and Scott Sheehan, were also parked outside the Wing home, waiting to pick up Wing’s brother.

Wing took the victim to a house where defendant Lorenz lived with Mike and Scott Sheehan. The two Sheehans and Gary Wing arrived at Lorenz’ and the Sheehans’ house at approximately the same time as Wing and the victim. Lorenz was already there. Although most of the others at the party were drinking alcoholic beverages, the victim testified that she only consumed a few sips of Lorenz’ drink. Other testimony also indicated that she did not drink much alcohol that evening. The victim was the only woman present for most of the evening.

Testimony was presented that some of the men played a drinking game known as “quarters” for approximately thirty minutes. After a time, Scott and Mike Sheehan and Gary Wing went to buy more beer, leaving the victim in the house with Wing, Lorenz, and another individual, Donald Buxbaum. Testimony was presented that the four of them were in the living room and that both Wing and Lorenz attempted to sexually arouse the victim so that she would engage in consensual sex with them at that time.

The victim testified that she indicated she did not wish to go into the bedroom with Lorenz and Wing, but that they had forced her into the bedroom, one pulling on each of her arms. She testified that she was crying and told them she did not “want to.” According to the victim, Lorenz pushed her on the bed, despite her resistance, and then held her arms above her head while Wing pulled off her sweat pants and underwear. She testified that Wing then penetrated her vaginally while Lorenz attempted to insert his penis in her mouth, and that when Wing completed vaginal intercourse, he held the victim’s arms down while Lorenz had vaginal intercourse without her consent.

About the time Lorenz and Wing finished with the victim, the other three men returned from their jaunt to buy beer and came into the bedroom either at or soon after the time Lorenz and Wing left the room. The victim testified that she struggled with the three men, still crying, and told them she wanted to go home, but Gary Wing, Scott Sheehan and Mike Sheehan then performed oral and vaginal intercourse without her consent.

After the sexual acts, the victim asked Wing to take her home; Wing refused. Buxbaum, who had not taken part in any of the sexual acts committed upon the victim, followed her out of the house and gave her a ride home.

Eight days later, on December 20, 1991, two girls at school asked the victim if it was true that she had had sex with five guys at one time. Following that incident and at the urging of two of her friends, the victim reported the episode to a school counselor. Later the same day, she gave a detailed statement to Sidney Police Officer David Schettine (Schettine). Schettine initially interviewed and took tape-recorded statements from both Wing and Lorenz.

Wing initially told Schettine that he asked the victim to go to a party and that nothing happened at the party. He later stated that the party essentially ended up in the bedroom with the victim and the other four men, but he denied having sexual intercourse with her on that day — either consensually or nonconsensually. He later changed his story again and advised Schettine that he and the victim had engaged in consensual sex prior to the party and later at Lorenz’ house where the three of them engaged in various acts of consensual sex. He testified at trial that after the sexual activity when the victim came out of the bedroom, she smoked a cigarette and then asked for a ride home. He further testified that he ignored her and that Lorenz said, ‘Well, boys, let’s have a big round of applause for [the victim].” He acknowledged lying to Officer Schettine, claiming to have done so because he had a girl friend at the time and he did not want her to find out that he had had sex with someone else.

Lorenz also later changed his initial description of the events of December 12,1991. His initial statement was similar to Wing’s first recount which denied sexual conduct had occurred. Lorenz later stated that he and Wing and the victim engaged in consensual sexual acts. He also testified that the subsequent sexual acts with the other three men were also consensual. At trial, he admitted that he lied to Officer Schettine on two prior occasions, as had Wing, but claimed to have lied because he did not want to discuss the group sex as he thought it might be considered “an unnatural sex act” and he did not know what his rights were “as far as sex.” He also admitted that he had previously denied on four separate occasions that he had ever had sex with the victim.

At trial, the victim testified that she had engaged in consensual sexual activities in the past with both Wing and Lorenz. Further testimony was introduced by Lorenz that the victim had engaged in sexual activity on one occasion which involved seven men, one being Lorenz. The victim also admitted this conduct. Lorenz and Wing both testified at trial as to numerous sexual acts engaged in with the victim while others were present and which had occurred prior to the December 12, 1991 party at Lorenz’ house.

The jury convicted Wing of one count of sexual intercourse without consent. The District Court sentenced him to eight years in prison with four years suspended, designated him a nondangerous offender for purposes of parole eligibility, and ordered him to complete a sexual offender treatment program. The jury convicted Lorenz of two counts of sexual intercourse without consent and one count of sexual intercourse without consent by accountability. The court sentenced Lorenz to concurrent eight year prison terms on each of the three counts. The court also determined that Lorenz was a persistent felony offender and sentenced him to an additional consecutive ten year term and ordered him to complete the sexual offender treatment program. Lorenz was designated a dangerous offender for purposes of parole eligibility.

I.

Did the District Court abuse its discretion in restricting the defendants’ evidence relating to the victim’s past sexual conduct?

Defendants contend that the court erred in precluding additional witnesses from testifying about separate incidents in which the victim engaged in consensual group sex or in consensual sex with one of the defendants in the presence of at least one other person. They contend that the court’s preclusion of this testimony was reversible error because it critically impaired them from presenting their consent defense. They further claim that such evidence was relevant and admissible pursuant to § 45-5-511, MCA, and was intended to corroborate and bolster the defendants’ contentions that the sex was consensual.

The District Court allowed a great deal of evidence to be introduced regarding the victim’s past sexual activities. One witness, Troy Jones, testified in detail about an incident at the victim’s sister’s home in which the victim engaged in consensual group sex acts with seven men. Lorenz testified about numerous incidents when he and the victim engaged in consensual sexual intercourse, with and without other participants. He also testified concerning times when other persons were actually in the residence where the sexual events occurred but were not involved in the sexual conduct. Wing testified about the consensual sexual intercourse that he and the victim engaged in on December 12, 1991, prior to going to the party at Lorenz’ house. He further testified about numerous prior incidents when he and the victim engaged in consensual sex acts.

Specifically, Wing testified about one incident in the fall of 1990, when he, the victim and Curt Rice (Rice) had driven to a location near Sidney and he and the victim engaged in sexual intercourse while Rice waited in the truck. He claimed that the victim was anxious to “take them both on” but that Rice had declined. Wing also testified that the victim had engaged in oral sex with him in Rice’s presence while they returned to town in Wing’s pickup truck after that sexual encounter.

Wing’s counsel attempted to call Rice to testify about the above-described specific events. Lorenz’ counsel also attempted to call other witnesses, whom he claimed could provide testimony about the number of times the victim had sex with him in the presence of others, when they first had consensual sexual intercourse and various dates on which they had consensual sexual intercourse including the first time they had consensual sex.

After allowing much of this testimony about the victim’s past sexual conduct, the District Court refused to admit the testimony of additional witnesses concerning the victim’s past sexual conduct. Rulings on the admissibility of evidence are left to the sound discretion of the district courts. State v. Stewart (1992), 253 Mont. 475, 479, 833 P.2d 1085, 1087. The scope of our review for trial administration issues is the same. Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 604. Thus, the District Court could properly exclude evidence which is relevant and admissible on other bases.

When Wing attempted to introduce Rice’s testimony, the District Court considered the arguments of both counsel and concluded as follows:

THE COURT: Well, I still think we’ve gotten to the point where that has been adequately shown, and to go beyond that and start dragging these witnesses in is going to be more prejudicial than it is probative.
She’s admitted the prior contact. She’s admitted that it has occurred with more than one party present on some occasions. The defendant [Wing] has testified that it occurred. To start parading these people in is going to be in effect putting the witness on trial, and that’s not what we’re here for.
The statute allows examination of prior acts only for the purpose outlined in the statute. Your argument is as to contact with the defendant and to be used for the purpose of showing consent.
She’s admitted the prior contacts and that there was consent, and I think that we’re just stretching it out too far to start dragging these people in and saying, ‘Yeah, I was there, I was there, and I was there.”

The court concluded that to bring in other witnesses in addition to the two defendants and Troy Jones to further testify about the victim’s past sexual conduct was to go beyond the point of being probative. The court allowed the testimony of Troy Jones regarding the group sex acts at the victim’s sister’s apartment because there was no indication at the time that Lorenz would testify to it himself.

The statute the District Court referred to in the above quote is known as the “rape shield” statute, § 45-5-511, MCA, and it provides in pertinent part:

(2) No evidence concerning the sexual conduct of the victim is admissible in prosecutions under this part except evidence of the victim’s past sexual conduct with the offender or evidence of specific instances of the victim’s sexual activity to show the origin of semen, pregnancy, or disease which is at issue in the prosecution.

The Compiler’s Comments to § 45-5-511, MCA, provide that

evidence pertaining to the sexual conduct of the victim is not admissible into evidence at trial. The purpose of this rule is to prevent the trial of the charge against the defendant being converted into a trial of the victim. There are only two exceptions ... and both go directly to specific conduct which may be at issue in any given case. The first allows the defendant to introduce evidence pertaining to the victim’s prior sexual conduct in relation to himself. Thus, if the victim and defendant have been sexually intimate previous to the alleged rape, the defendant may use evidence to this effect. (Emphasis supplied.)

The district courts are “given wide discretion to exclude evidence as cumulative even though it is relevant.” State v. Short (1985), 217 Mont. 62, 69, 702 P.2d 979, 983. Rule 403, M.R.Evid., provides a number of rationales for exclusion of otherwise relevant evidence:

Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

In Short, this Court emphasized a previous case where the trial comb did not abuse its discretion by ruling that repetitious testimony should be excluded under Rule 403, M.R.Evid. Since the defendant in that case had previously testified about the evidence, the court concluded that the probative value of the additional evidence on the same topic as corroborating evidence that the victim had threatened the defendant was substantially outweighed by the factors listed in Rule 403, M.R.Evid. Short, 702 P.2d at 983 (citing State v. Breitenstein (1979), 180 Mont. 503, 591 P.2d 233).

We conclude that the District court did not abuse its discretion in this case by restricting otherwise relevant and admissible evidence of the victim’s past sexual conduct which was merely cumulative in nature and which easily could have had the effect of being more prejudicial to the victim than probative to the jury. We conclude that the jury was presented with ample evidence of prior consensual acts between the defendants and the victim from which it could determine without bias the credibility of the defendants’ defense that the victim consented to the sexual acts on December 12, 1991. We further conclude that the defendants were not prevented by the court’s ruling on cumulative evidence from presenting their consent defense.

We hold the District Court did not abuse its discretion when it restricted the defendants’ evidence regarding the victim’s past sexual conduct.

II.

Did the District Court abuse its discretion by allowing the victim to testify about sexual acts committed by others who were not defendants in this trial?

As discussed above, the District Court allowed the victim to testify not only to the sexual acts committed by Wing and Lorenz, but also to those committed by Gary Wing, Scott Sheehan and Mike Sheehan. Wing and Lorenz contend that the court abused its discretion by allowing this testimony about other sexual conduct that occurred because it was hearsay and improperly admitted into evidence under the res gestae doctrine and because it was unduly prejudicial in relation to its probative value. Lorenz and Wing further contend that this evidence should have been precluded because the acts they committed were clearly separate from those of the other three defendants as the other three were to be tried in a separate trial.

Contrary to the arguments made by the defendants, Montana allows the introduction of evidence which is part of a single transaction. The concepts embraced by the term res gestae are included within the codification of that common law doctrine in § 26-1-103, MCA, also referred to as the “transaction” rule, which provides as follows:

26-1-103. Declaration, act, or omission which is a part of the transaction. Where the declaration, act, or omission forms part of a transaction which is itself the fact in dispute or evidence of that fact, such declaration, act, or omission is evidence as part of the transaction.

Whether an act is referred to as part of the res gestae or as part of the “transaction,” that act is evidence which is part of the same litigated event.

For example, it is well established that evidence which tends to explain circumstances surrounding the charged offense is relevant, probative and competent. When the court is not dealing with the introduction of evidence of wholly independent or unrelated crimes, the evidence is properly admitted. State v. Cameron (1992), 255 Mont. 14, 20, 839 P.2d 1281, 1285. In Cameron, we also pointed out that evidence may be admissible if it is closely related to and explanatory of the offense. Cameron, 839 P.2d at 1287. See also State v. Riley (1982), 199 Mont. 413, 426, 649 P.2d 1273, 1279.

To be admissible, evidence must be relevant, competent and material. These concepts of admissibility are included in Rules 401 and 402, M.R.Evid., relating to relevancy. Generally, evidence is relevant if it logically and naturally tends to establish a fact in issue. State v. Smith (1986), 220 Mont. 364, 376, 715 P.2d 1301, 1308.

[A]dmissibility is predicated on the jury’s right to hear what transgressed immediately prior and subsequent to the commission of the offense charged, so that they may evaluate the evidence in the context in which the criminal act occurred. Acts of a defendant subsequent to the alleged commission of the crime, and intertwined therewith, are highly probative. (Citation omitted.)

State v. Moore (1992), 254 Mont. 241, 246, 836 P.2d 604, 607.

We conclude that the victim’s testimonial evidence about the sexual acts committed by Gary Wing and Scott and Mike Sheehan was admissible as part of the transaction and as such, the District Court did not abuse its discretion by admitting it because such testimony was relevant according to Rule 402, M.R.Evid., which provides that “[a]ll relevant evidence is admissible.”

We further conclude that the testimony objected to here relating to the three other defendants was not hearsay. Hearsay is a “statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted.” Rule 801(c), M.R.Evid. The testimony of the sexual conduct of the three other men was not offered into evidence to prove such conduct.

The victim was accessible at trial for full cross-examination by each of the defendants concerning her testimony. The testimony concerning these acts was highly probative and its probative value was not outweighed by prejudice to the defendants. The trial transcript provides evidence of an exhaustive cross-examination of the witness regarding her prior sexual activity, not only with the defendants as allowed by the “rape shield” statute, but also with numerous other persons because of the nature of the group sex activities. Moreover, the District Court cautioned the jury that the acts of the other three men “should have no bearing on your consideration of what these two individuals are charged with and are not to be considered in any of your deliberations.” We conclude that the testimony about the sexual acts committed by Gary Wing, Scott Sheehan and Mike Sheehan was admissible under Rule 402, M.R.Evid., and Rule 801(c), M.R.Evid.

We hold the District court properly exercised its discretion by allowing the victim to testify about sexual acts committed by others who were not defendants in this trial.

III.

Did the District Court abuse its discretion by restricting defendant Lorenz’ cross-examination of the victim?

Defendant Lorenz contends that the District Corut also abused its discretion by precluding his counsel from asking the victim questions directed to specific instances of her prior sexual conduct with Lorenz in the presence of others. At the time Lorenz’ counsel objected to the restriction on cross-examination of the victim, the District Court specifically instructed counsel that questions could not be framed so as to presume sexual conduct which had not been testified to in evidence.

The District Court advised counsel as follows:

THE COURT: ... The point I’m trying to get across to you is, I will allow your area of questioning. I’d agree with you that it’s relevant and the statute allows it. Okay. What I don’t want is for you to be questioning this witness presuming facts that are not in evidence. And every time you start your question, “Isn’t it true that on such and such a date with such and such a person you did this and this and this,” when there’s been no testimony that that in fact happened. You can ask in general, “Have you ever had sex with,” “From this point on, have you ever done this?” Okay. If she says yes, then you can ask her when and where and with who. And if she says no, then you’ve got to go to another method of proof. Do you understand what I’m saying?
MS. IRIGOIN: Although she says yes —
THE COURT: Every time you give that question, “Isn’t it true that you did on such and such a day with such and such a person present,” you’re getting into an area where you’ve already given the jury the statement of fact that has not been shown in any way, shape or form and the question presumes something not in evidence.

We emphasize that it is within the trial court’s discretion to exercise reasonable control over the mode in which a party interrogates witnesses. State v. Gommenginger (1990), 242 Mont. 265, 274, 790 P.2d 455, 461. Recently, in State v. McNatt (1993), 257 Mont. 468, 473-74, 849 P.2d 1050, 1054, we held that the right to cross-examine a witness is not absolute, stating:

Balanced against this right of confrontation is Rule 611(a), M.R.Evid., which provides that the district court has discretion in exercising reasonable control over the mode and order of interrogating witnesses so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

Despite the trial court’s discretion to exercise reasonable control over the mode of interrogation of witnesses, the exercise of such control must not infringe upon the rights of a party. 81 Am. Jur. 2d Witnesses § 717 (1992). In Gommenginger, we stated:

[T]he trial court’s discretion in exercising control and excluding evidence of a witness’s bias or motive to testify falsely becomes operative only after the constitutionally required threshold level of inquiry has been afforded the Defendant.

Gommenginger, 790 P.2d at 461 (citing United States v. Tracey (1st Cir. 1982), 675 F.2d 433, 437.)

The federal courts have said the exercise of reasonable control over the mode and order of interrogating witnesses and presenting evidence encompasses the same purposes as are set forth in Rule 611, M.R.Evid. 81 Am.Jur.2d Witnesses § 717. The exercise of the court’s discretion “will not be disturbed unless it has been abused or substantial harm has improperly been done to the complaining party.” 81 Am.Jur.2d Witnesses § 717.

The substance of the court’s directing the mode of interrogation in this case is the court’s refusal to allow counsel for defendant Lorenz to ask questions beginning with, “Isn’t it true that...” which included facts of actual prior sexual encounters between the defendants and the victim where third persons were also present, such as the following:

[MS. IRIGOIN]: And isn’t it true that during part of those times, or a number of those times, someone else was present while you were having sexual intercourse with your consent with John Lorenz?
[MS. IRIGOIN]: Didn’t you in December of 1990 have sexual intercourse with your consent with John Lorenz with a number of people present?

Essentially, counsel for defendant Lorenz attempted to ask if the witness had had sexual intercourse with her consent at a particular place, at a particular time and with a particular third person present.

We conclude that the District Court erroneously limited the questions on cross-examination to questions based upon facts which had already been established in the record. Our rules do not contain such a limitation. On cross-examination, it is entirely appropriate to ask a question such as: “Isn’t it true that on April 24,1992, the defendant and you had sexual relations?”

Although we conclude that the District Court incorrectly limited the cross-examination, our review of the record discloses that all of the information sought to be disclosed was actually presented in an alternative cross-examination format and, as a result, there was no injury to the substantial rights of Lorenz.

In Montana, an error committed by the trial court against the appellant is harmless error and will not require reversal “unless the record shows that the error was prejudicial.” Section 46-20-701(1), MCA. Prejudice must not be presumed, but rather must appear from the denial or invasion of a substantial right from which the law imputes prejudice. State v. Newman (1990), 242 Mont. 315, 325, 790 P.2d 971, 977. When assessing the prejudicial effect of an error, this Court will examine the totality of the circumstances in which the error occurred. Brodniak v. State (1989), 239 Mont. 110, 115, 779 P.2d 71, 74. As noted above, Lorenz’ substantial rights were not affected by the District Court’s ruling.

We hold that the District Court did abuse its discretion in requiring that defendant Lorenz’ cross-examination of the victim be structured in the specific manner explained above, but that the court’s control did not constitute reversible error because there was no adverse consequence to the defendant.

IV.

Did the District Court err in designating defendant Lorenz a dangerous offender for purposes of parole eligibility?

Lorenz contends the District Court failed to adequately articulate its reasons for designating him a dangerous offender under § 46-18-404, MCA. In pertinent part, § 46-18-404(1), MCA, provides:

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

The designation of dangerous offender is an important factor in determining parole eligibility for Lorenz as he may not be paroled unless he has served one-half of his full term less any good time he may have accumulated under the provisions of § 53-30-105, MCA. See § 46-23-201(2), MCA.

In State v. Morrison (1993), 257 Mont. 282, 287, 848 P.2d 514, 517, this Court emphasized that the above code section governs the designation of both nondangerous and dangerous offenders and stated:

The designation of an offender as either nondangerous or dangerous is an important factor in determining parole eligibility. Section 46-18-404, MCA, governs the designation of nondangerous or dangerous offender. In State v. Belmarez (1991), 248 Mont. 378, 381, 812 P.2d 341 343, we stated:

[A]n individual may be designated a dangerous offender, if, in the discretion of the sentencing court, he is determined to represent a substantial danger to other persons or society; however, more than a mere recital of the statutory language is required. The sentencing court must articulate its reasons underlying its determination.

The key point for the present case is that an individual may be designated as a dangerous offender if he is determined to represent a substantial danger to other persons or society. The District Court here failed to articulate why Lorenz represented a substantial danger to other persons or to society.

At the sentencing hearing in this case, the District Court stated as follows:

In terms of dangerous or non-dangerous designation, as I read the statute, I can only designate him as a non-dangerous offender if he has not had any felony convictions within the last five years, and so for that reason the designation in this case will be as a dangerous offender since there are two prior felony convictions within the last five years.

The only additional reference to the dangerous offender designation was the following statement in the District Court Judgment and Sentence: “The defendant is designated as a dangerous offender.”

In Morrison, 848 P.2d at 517, the Court concluded that where there is substantial evidence to support a court’s determination that an offender is dangerous, this Court may remand to the district court for findings to support such a conclusion. We pointed out that without such findings this Court cannot determine whether there is an abuse of discretion. Morrison, 848 P.2d at 517-18.

We conclude the District Court failed to articulate adequate reasons for designating the offender as dangerous as required by § 46-18-404, MCA, and Morrison. We reverse the designation of Lorenz as a dangerous offender and remand to the District Court for additional findings articulating its reasons for a dangerous or nondangerous designation.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

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


author: JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DUANE BRANDON, Defendant and Appellant.
    No. 93-293.
    Submitted on Briefs January 7, 1994.
    Rehearing Denied April 14, 1994.
    Decided March 22, 1994.
    51 St.Rep. 244.
    264 Mont. 231.
    870 P.2d 734.

      For Appellant: Charles F. Moses, Moses Law Firm, Billings.
    For Respondent: Joseph P. Mazurek, Attorney General, Cregg Coughlin, Ass’t Attorney General, Helena; Wm. Neis Swandal, Park County Attorney, Jon Hesse, Deputy Park County Attorney, Livingston.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Appellant Duane Brandon (Brandon) appeals the Sixth Judicial District Court, Park County, jury verdict which found him guilty of conspiracy to commit deliberate homicide against his wife, Patsy Brandon (Patsy). We affirm.

Five issues are before this Court:

1. Did the District Court err by refusing Brandon’s proposed jury instructions on solicitation and entrapment?

2. Did the District Court err by denying Brandon’s motion to dismiss and acquit on the grounds of entrapment?

3. Did the District Court err by restricting Brandon’s cross-examination of the informant?

4. Did the District Court err by refusing to admit Brandon’s statement to police into evidence?

5. Did the District Court err by refusing Brandon’s motion for a change of venue?

Brandon and Patsy were married for approximately thirty years. They lived in Livingston, Montana, and had three children. Brandon was a self-employed heavy equipment operator/contractor and Patsy was a clerk at Gateway Office Supply. After the couple separated in August 1991, Patsy moved to a trailer court near Livingston. Divorce proceedings began in October 1991, and the parties attempted to negotiate a property settlement. Although the parties constructed a draft agreement, no final agreement was ever reached.

Roger Gorham (Gorham) was an acquaintance of Brandon’s; they met when Brandon was working on a road in the subdivision where Gorham lived. Upset about his pending divorce and potential financial difficulties associated with the future property settlement, Brandon told Gorham that he wished his wife would “disappear.” Brandon hoped Patsy would have an accident or that “somebody would take a shot at her.”

Sensing Brandon’s mind-set, Gorham suggested that Brandon discuss his divorce problems with Bill Bartlett (Bartlett), a Bozeman attorney. On October 14, 1991, Gorham drove Brandon to Bozeman to meet with Bartlett. During the drive, Brandon stated that he wished his wife was dead or that someone would kill her. When Gorham introduced Brandon to Bartlett, but before Brandon and Bartlett met privately, the trio joked about Brandon wanting to kill his wife.

After the consultation, Brandon and Gorham returned to Livingston and Gorham went to a motel lounge for a drink. While there, Gorham told Park County Undersheriff Lee Keto that a mutual friend wanted Gorham to kill his wife. The two laughed, and no more was said at that time.

On February 3, 1992, Brandon visited Gorham and told him that he had met with an attorney and learned that he was going to have to pay a large divorce settlement. Brandon wanted Gorham to kill Brandon’s wife; Gorham was to receive $10,000 — possibly in the form of construction work — as payment for killing Brandon’s wife.

They were to meet later that evening to discuss the details. Following the first visit, Gorham contacted Undersheriff Keto, informing him that Brandon had made statements about wanting to kill Patsy. With Gorham’s consent, Park County sheriffs attached a hidden wire, or microphone, to Gorham.

Gorham then drove to Brandon’s home and picked him up. They drove to the trailer court where Patsy lived. While there, Brandon discussed methods of killing Patsy. The conversation was recorded by law enforcement officers.

Brandon suggested that Gorham asphyxiate Patsy with natural gas. He gave Gorham suggestions on how to avoid detection. Brandon alternatively suggested that Gorham might lure Patsy to Big Timber, kill her, and dump her body in a “green box,” or trash disposal bin. He described in detail the location of the disposal bins. Brandon told Gorham he was leaving Montana temporarily and wanted the job done while he was gone.

To assist Gorham, Brandon had Gorham write down Patsy’s place of employment, her work phone number and her work schedule. Brandon wanted someone to find Patsy’s body while Brandon was gone from the state. Brandon even devised a signal by which Gorham could convey to Brandon, through Brandon’s girlfriend, whether Patsy’s body was found. When Gorham asked if Brandon might have second thoughts about this later, Brandon made it clear that he was serious and that he wanted his wife killed.

On the following day, Gorham again met with Brandon. This conversation was recorded as well. At that meeting, Brandon delivered a .22 caliber pistol to Gorham. Brandon taught Gorham how to use the gun and suggested that Gorham purchase solid-point bullets, rather than hollow points, because they “penetrate better.” Gorham asked, “Do you think these will go through her skull?” The following exchange occurred:

BRANDON: Oh yeah. If you could shoot her in, right in here, the butt of the ear, right in here somewhere, it’ll — it’ll put her down. And then the best thing to do is to put the [gun] right up there close and just pull it off about three times, four times. I’ll guarantee that son of a bitch will do the job. That [expletive] thing right there I shot a bull moose with antlers on it about this wide.
GORHAM: Okay, this is it then.... Are you sure this’ll do the trick?
BRANDON: You [expletive] right. If that son of a bitch will kill a bull moose, it ought to kill her.

Brandon advised Gorham that he could dispose of the gun by throwing it into a deep hole in the Yellowstone River, and explained to him where the hole was located.

Later that evening, Gorham again met briefly with Brandon. This conversation was also recorded. Gorham confirmed that Brandon wanted his wife killed. Gorham asked about his payment, reminding Brandon that he was to receive $10,000. Brandon responded, “I’ll do it, [expletive], even if I have to haul gravel to finish it up.” Brandon then advised Gorham to put a garbage sack over Patsy’s head “to keep her from bleeding all over the [expletive] place.” Brandon further suggested:

If you can get into a situation where you can knock her in the [expletive] head, cold cock her, then you can take that [expletive] gun and stick it right up here, and angle it up into her [expletive] brain, like this way.... Yeah, and it won’t leave no [expletive] blood right here. You might get a little out of her [expletive] nose or something, but hey, you get a [expletive] gunny sack over her, or a plastic sack over her, and you got it made.

Brandon was arrested the following day On February 19, 1992, Brandon was charged with conspiracy to commit deliberate homicide in violation of § 45-4-102, MCA, or, in the alternative, with solicitation to commit deliberate homicide in violation of § 45-4-101, MCA. The conspiracy count was dismissed on September 8,1992, and Brandon was tried by a jury on December 14-17,1992. The jury found Brandon guilty of solicitation to commit deliberate homicide. Brandon’s motion for a new trial was denied.

On February 12,1993, Brandon was sentenced to twenty-five years in prison with five years suspended. He was designated a dangerous offender for purposes of parole eligibility Brandon appeals. We affirm.

I

Did the District Court err by refusing Brandon’s proposed jury instructions on solicitation and entrapment?

Our standard of review of jury instructions in criminal cases is whether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case. State v. Lundblade (1981), 191 Mont. 526, 529-30, 625 P.2d 545, 548. The district court must instruct the jury on each issue or theory which is supported by the record. State v. Popescu (1989), 237 Mont. 493, 495, 774 P.2d 395, 396. Brandon contends that he was denied an opportunity for a fair trial because the District Court refused his instructions regarding solicitation and entrapment.

Brandon claims that the court should have accepted his Proposed Instruction No. 27:

You are instructed that a conviction of criminal solicitation must be based upon prosecutorial proof beyond the mere verbal act of soliciting another to commit a crime. The State is required to present sufficient evidence to permit a jury to conclude beyond a reasonable doubt that the solicitation itself was done with the specific purpose to promote or facilitate the commission of the crime solicited. Accordingly, a conviction cannot be established where the actions have been innocently motivated, done in jest, and with no proof beyond a reasonable doubt of a purpose to actually intend to carry out such a crime.

Brandon also offered Proposed Instruction No. 28:

You are instructed that one of the elements required to be proven in this case is that the defendant solicited Roger Gorham for the purpose of committing a homicide. The evidence must be sufficient to prove beyond a reasonable doubt that Duane Brandon acted with the specific intent to promote or facilitate the commission of a crime. It is not sufficient, however, to show merely that the accused solicited the commission of the crime. Rather, sufficient circumstances surrounding the overt act of solicitation must be presented which corroborate that the act in fact was done with the requisite specific intent or purpose. This protects those actions that may have been innocently motivated, done in jest, or with no purpose to actually have a crime committed.

These instructions, Brandon contends, properly instruct that to prove solicitation, the State must additionally prove “circumstances strongly corroborative of [specific] intent.” State v. Aalbu (Colo. 1985), 696 P.2d 796, 805 (quoting State v. Latsis (Colo. 1978), 578 P.2d 1055, 1057).

In Aalbu and Latsis, the Colorado Supreme Court considered constitutional challenges to Colorado’s criminal solicitation statute on grounds of vagueness and overbreadth. Interpreting Colorado’s solicitation statute in both cases, the court held that the statute — which required the “added element” of circumstances strongly corroborative of specific intent — was neither overly broad nor unconstitutionally vague.

The State argues, and we agree, that Montana’s solicitation statute does not require proof of circumstances strongly corroborative of specific intent. Rather, § 45-4-101(1), MCA, provides that

[a] person commits the offense of solicitation when, with the purpose that an offense be committed, he commands, encourages, or facilitates the commission of that offense.

(Emphasis added.) According to the State, the jury was properly instructed on the elements of solicitation. The State proposed, and the District Court adopted, Instruction No. 11, which read:

You are instructed that to convict the defendant of solicitation, the State must prove the following elements:
First: That the defendant commanded, encouraged or facilitated Roger Gorham to commit deliberate homicide, a felony; and
Second: That the defendant did so with the purpose that the crime of deliberate homicide be committed, whether or not it was actually committed.
If you find from your consideration of all the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the defendant guilty. If, on the other hand, you find from your consideration of all the evidence that any of these elements has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.

The jury also received Instruction No. 12 on the requisite state of mind or intent to find Brandon guilty:

A person is not guilty of an offense unless, with respect to each element described by the statute defining the offense, he acts while having one of the mental states described by the statute.
A material element of every offense is a voluntary act, which includes an omission to perform a duty which the law imposes and which he is physically capable of performing.
The prosecution must prove, beyond a reasonable doubt, not only the acts alleged, but also that the defendant possessed, at the time of the act, the mental state required.

The jury received Instruction No. 17, which provided that

[a] person acts purposely when it is his conscious object to engage in conduct of that nature or to cause such a result.

We hold that the jury was properly instructed as to the definition of “purposely,” the mental state element of solicitation. The State’s instructions adequately covered the law on solicitation and the requisite mental state. See Funk v. Robbin (1984), 212 Mont. 437, 447, 689 P.2d 1215, 1221.

Brandon asserted the defense of entrapment at trial. The District Court refused Brandon’s Proposed Instruction No. 36, which read:

You are instructed that with respect to the defense of entrapment, the State is required to prove beyond a reasonable doubt that the defendant, Duane Brandon, was not induced to commit the crime alleged. In addition, the State must prove beyond a reasonable doubt that in fact Duane Brandon was predisposed to commit the crime that is alleged in this case.
In considering these elements, evidence of predisposition must come before the government initiated its plan to induce the defendant to commit a crime for the purposes of prosecution. Accordingly, statements made by the defendant, Duane Brandon, during the period of time that Roger Gorham had a body wire is not sufficient evidence to show predisposition as a matter of law.

(Emphasis added). According to Brandon, the court committed reversible error by proffering instructions which did not require the State to show that Brandon was “predisposed to commit the illegal acts prior to the initial contact by government agents.” United States v. Mkhsian (9th Cir. 1993), 5 F.3d 1306, 1310 (citing Jacobson v. United States (1992), 503 U.S._,_, 112 S.Ct. 1535, 1540, 118 L.Ed.2d 174, 184).

The State asserts that Brandon’s proposed instruction is argumentative and unsupported by the case law he cites. The State characterizes the phrase, “predisposition must come before the government initiated its plan to induce the defendant to commit a crime for the purpose of prosecution,” as another attempt by Brandon to present his argument to the jury.

Instruction No. 18, regarding the defense of entrapment, provided:

You are instructed that the issue of entrapment has been raised in this case. When a person has no previous intent or purpose to commit a crime, but is induced or persuaded by law enforcement officers or their agents to commit this crime, he is the victim of entrapment and the law, as a matter of policy, forbids his conviction in such case. On the other hand, where a person already has the readiness and willingness to engage in a crime, the mere fact that law enforcement officers or their agents provided what appears to be a favorable opportunity is not entrapment. The law, however, does not permit law enforcement officers or their agents to originate or implant the criminal design in the defendant’s mind. Therefore, if you should find beyond a reasonable doubt from the evidence in this case that before anything at all occurred respecting the alleged offense, in this case solicitation, the defendant was ready and willing to commit such a crime, then you should find that the defendant is not a victim of entrapment.
If the evidence in this case leaves you with a reasonable doubt that the defendant had the previous intent or purpose to commit the offense of solicitation except for inducement or persuasion of some law enforcement officer’s agent, then it is your duty to find him not guilty. The burden is upon the State to prove beyond a reasonable doubt that the defendant was not entrapped.

Instruction No. 19 read:

You are instructed that you may find the defendant was entrapped if you find each of the following:
(1) That criminal intent or design originated in the mind of the police officer or informer; and
(2) That there was an absence of criminal intent or design originating in the mind of the accused; and
(3) That the defendant was lured or induced into committing a crime he had no intention of committing.

In addition, Instruction No. 20 provided:

You are instructed that a person is not guilty of an offense if his conduct is incited or induced by a public servant or his agent for the purpose of obtaining evidence for the prosecution of such person. However, this defense is not available if a public servant or his agent merely affords to such person the opportunity or facility for committing an offense in furtherance of criminal purpose which such person has originated.

As Brandon correctly asserts, these instructions do not comport, in whole, with the requirements of Mkhsian. See Mkhsian, 5 F.3d at 1310-11. Specifically, Instruction No. 18 contains the phrase:

where a person already has the readiness and willingness to engage in a crime, the mere fact that law enforcement officers or their agents provided what appears to be a favorable opportunity is not entrapment.

That phrase, used in Jacobson, was rejected by the court in Mkhsian because it wrongly permitted the jury to reject the entrapment defense:

The instruction given by the district court that it is not possible to entrap “a person [who] already has the readiness and willingness to break the law” does not conform to Jacobson’s requirements. “Already” does not necessarily mean “before the [g]overnment intervened”; indeed, it could mean, for example, that even “if [Mkhsian] was not initially disposed to [buy] drugs, he could ... develop such a disposition during the later course” of interacting with Stanton (citation omitted). So interpreted, the instruction does not correctly state the law.

Mkhsian, 5 F.3d at 1311.

We must determine, then, whether inclusion of the phrase rejected in Mkhsian is reversible error. See United States v. Montoya (9th Cir. 1991), 945 F.2d 1068, 1074. We hold that the error was harmless because: 1) additional language in Instruction Nos. 18, 19 and 20 make it clear that Brandon was not entrapped if criminal intent originated in his mind rather than that of the police or Gorham; and 2) Instruction No. 18 was not identical to the instruction rejected in Mkhsian.

For future reference when instructing on the defense of entrapment, Montana courts shall not include in any entrapment instruction the phrase

where a person already has the readiness and willingness to engage in a crime, the mere fact that law enforcement officers or their agents provided what appears to be a favorable opportunity is not entrapment.

We reemphasize that “it is the government’s burden (once evidence of inducement is shown by the defendant) to prove that the defendant ‘was predisposed to violate the law before the [government intervened ....’ ” Mkhsian, 5 F.3d at 1311 (citation omitted). We suggest that be made clear in entrapment instructions.

Brandon’s proposed instruction, on the other hand, is clearly argumentative. Therefore, we hold that his instruction was properly refused by the District Court. See State v. Pecora (1980), 190 Mont. 115, 120, 619 P.2d 173, 175. The court’s instructions fully and fairly instructed the jury on the applicable law in this case. See Lundblade, 625 P.2d at 548. Finally, given the recent Ninth Circuit and U.S. Supreme Court decisions involving entrapment instructions, we suggest that the Attorney General review the standard entrapment instructions offered by prosecutors in Montana to ensure that such instructions comport with current federal and State law.

II

Did the District Court err by denying Brandon’s motion to dismiss and acquit on the grounds of entrapment?

In reviewing a district court’s denial of a motion to dismiss based on entrapment, this Court reviews the evidence and inferences therefrom in a light most favorable to the State. State v. Kim (1989), 239 Mont. 189, 194, 779 P.2d 512, 515 (citation omitted). The decision to direct a verdict at the close of the State’s case lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. State v. Graves (1990), 241 Mont. 533, 535, 788 P.2d 311, 313.

Montana’s statute on entrapment, § 45-2-213, MCA, provides that

[a] person is not guilty of an offense if his conduct is incited or induced by a public servant or his agent for the purpose of obtaining evidence for the prosecution of such person. However, this section is inapplicable if a public servant or his agent merely affords to such person the opportunity or facility for committing an offense in furtherance of criminal purpose which such person has originated.

Entrapment is an affirmative defense and the burden of proving it rests with the defendant. State v. Kamrud (1980), 188 Mont. 100, 105, 611 P.2d 188, 191 (citation omitted). Although a court may determine that entrapment exists as a matter of law, Kamrud, 611 P.2d at 191, the issue is one for the jury when conflicting evidence is presented. State v. McClure (1983), 202 Mont. 500, 503, 659 P.2d 278, 280.

The three elements of the entrapment defense are set forth in State v. Farnsworth (1989), 240 Mont. 328, 331, 783 P.2d 1365, 1367 (citations omitted):

1. Criminal intent or design originating in the mind of the police officer, or informer;
2. Absence of criminal intent or design originating in the mind of the accused; and
3. Luring or inducing the accused into committing a crime he had no intention of committing.

Brandon argues that Bartlett’s testimony places any comments by Brandon in the “proper perspective.” According to Brandon, testimony by Gorham and Officer Lynn Gillett further confirms that Brandon’s notion of killing his wife was merely a joke. Brandon contends that the waiver of liability and consent forms signed by Gorham — whereby he agreed with Park County sheriffs to assist in the criminal investigation by wearing a wire and having one installed in his truck —are evidence that Gorham was to solicit Brandon to commit a crime. However,

there is a controlling distinction between inducing a person to do an unlawful act and setting a trap to catch him in the execution of a criminal design of his own conception.

State v. Karathanos (1972), 158 Mont. 461, 470, 493 P.2d 326, 331.

The State’s motion for leave to file the information against Brandon illustrates that the idea to kill Patsy originated with Brandon, not with Gorham: “Mr. Gorham told Sheriff Johnson that the defendant had contacted him for the second time and asked Gorham to kill defendant’s wife, Patsy Brandon.” The jury heard conflicting evidence as to where the criminal intent originated, and made its determination. The record supports the jury's rejection of the defense of entrapment.

During their first recorded conversation, Gorham suggested that Brandon might have second thoughts. Brandon’s response confirmed that the idea of killing Patsy originated with Brandon:

BRANDON: No, [expletive]. You, you know, I give you the second [expletive] chance. I asked you, do you want to be sure ‘bout that? [Expletive], I was on your doorstep. I, I had it all lined out ... [expletive], I’m serious.

Brandon was not lured or induced into committing a crime which he had no intention of committing. Rather, it is clear from the record that Brandon developed the murderous scheme, approached Gorham, and asked Gorham to kill Patsy. Applying the Farnsworth standard to this case, and viewing the evidence in the light most favorable to the State, we conclude that the District Court did not abuse its discretion by denying Brandon’s motion for entrapment.

III

Did the District Court err by restricting Brandon’s cross-examination of the informant?

Brandon contends that the District Court improperly restricted his cross-examination of Gorham. He claims he should have been allowed to question Gorham about a restraining order against Gorham, which was issued in an unrelated civil action with Gorham’s insurance company. The State objected on the grounds that the evidence was irrelevant. The objection was sustained and the jury was ordered to disregard the question.

Part of Brandon’s defense at trial was that Gorham had asked him to burn Gorham’s house down so Gorham could collect the fire insurance benefits. According to Brandon, he refused, and after Gorham or someone else burned the house down, Gorham had a motive to entrap Brandon in criminal activity in order to keep Brandon from revealing Gorham’s earlier request for assistance in the scheme.

Brandon argues that the line of questioning regarding the restraining order went to Gorham’s credibility. The State, on the other hand, contends that evidence regarding a restraining order in an unrelated civil action is irrelevant and prejudicial. After a careful review of the record, we determine that Brandon failed to establish that his defense was restricted or that the evidence would have operated to impeach Gorham’s credibility.

Brandon further contends that the District Court erred by refusing his proposed exhibits, which, he asserts, tended to prove that Gorham concealed himself to avoid testifying at trial. The exhibits were the State’s motion for a continuance and two affidavits of the deputy county attorney which indicated that officers were unable to locate Gorham, that the State believed he had fled Montana, and that the State believed he was attempting to elude law enforcement officers.

Brandon called Deputy County Attorney Jon Hesse to the stand during his case-in-chief. Hesse testified that he filed the motion because he did not know where Gorham was prior to trial and thought that Brandon and Gorham might be acting in concert to ensure that Gorham would be unavailable for trial. He further testified that his understanding that Gorham had not contacted the sheriff’s office was incorrect. In fact, Gorham had called the sheriff’s office. Gorham was later located in Bozeman. After assuring prosecutors he would be available for all proceedings, he was released without bail.

The District Court refused Brandon’s exhibits on the grounds that they were irrelevant. The court also concluded that they were cumulative, since Mr. Hesse had testified about the contents of the documents and the whereabouts of Gorham before trial. It is apparent that Brandon — in an effort to impeach Gorham’s credibility — was able to present evidence of the State’s prior belief that Gorham had fled. Sufficient evidence was before the jury from which Brandon could attack the credibility of Gorham, who testified, on these areas. Brandon has not established that the District Court abused its discretion by restricting his cross-examination or by refusing his proffered exhibits. See State v. McNatt (1993), 257 Mont. 468, 474-75, 849 P.2d 1050, 1054.

IV

Did the District Court err by refusing to admit Brandon’s statement to police into evidence?

Following his arrest, Brandon was interviewed by Park County Sheriff Charley Johnson. During trial, Brandon moved to admit into evidence Proposed Exhibit I, a transcript of the statement he had given to Sheriff Johnson. The State objected to the exhibit because it was inadmissible at that time. The court withheld ruling on the matter. The following day at trial, Brandon again offered Exhibit I. The District Court refused its admission. Later in chambers, defense counsel urged the admission of Exhibit I. The State objected on the grounds that the statement was hearsay, self-serving, and not subject to cross-examination because Brandon had not testified. The exhibit was refused.

Brandon argues that the statement should have been admitted under Rule 801(d)(1)(B), M.R.Evid., because, as a prior statement by a witness, it was not hearsay and was properly “offered to rebut an express or implied charge against the declarant of subsequent fabrication, improper influence or motive.” However, before prior statements qualify for admission under the rule, the declarant must testify and be subject to cross-examination. State v. Scheffelman (1991), 250 Mont. 334, 338, 820 P.2d 1293, 1296 (citation omitted).

In this case, Brandon had not testified at the time the statement was offered. Therefore, Brandon’s statement was not subject to cross-examination. Because the exhibit was not offered after Brandon testified, it appears that Brandon was attempting to place his unsworn testimony before the jury without taking the witness stand. Brandon’s pretrial statement was clearly inadmissible under Rule 801, M.R.Evid. The District Court did not abuse its discretion by refusing into evidence Brandon’s pretrial statement to police. See Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 604.

V

Did the District Court err by refusing Brandon’s motion for a change of venue?

On March 5, 1992, Brandon moved the District Court for a change of venue on the grounds of prejudicial pretrial publicity. Brandon was concerned that he would not receive a fair trial in Park County. In support of his contention, Brandon attached to his affidavit several news articles about the alleged offense. The court held oral argument on his motion on November 12th and denied the motion on November 19, 1992.

An accused is entitled to a change of venue when there are reasonable grounds to believe that a prejudicial atmosphere exists within the present venue which creates a reasonable apprehension that he cannot receive a fair trial. State v. Palmer (1986), 223 Mont. 25, 29, 723 P.2d 956, 959. To be granted a change of venue based on prejudicial pretrial publicity, Brandon must show: 1) that the news reports complained of were inflammatory; and 2) that the publication of articles actually inflamed the prejudice of the community to an extent that a reasonable possibility exists that he may not receive a fair trial. See State v. Ritchson (1982), 199 Mont. 51, 54, 647 P.2d 830, 832. Inflammatory news articles are characterized by

editorializing on the part of the media or any calculated attempt to prejudice public opinion against [the defendant] or to destroy the fairness of the pool from which his prospective jurors would be drawn.

State v. Armstrong (1980), 189 Mont. 407, 423, 616 P.2d 341, 350.

During voir dire, Brandon unsuccessfully attempted to establish that the news articles inflamed the prejudice of the community or that the jurors harbored any opinions about Brandon’s guilt. Of the twenty-six panel members questioned by defense counsel, eighteen had read something about the case and eight had read nothing about the case. Notably, however, defense counsel did not challenge any of the jurors for cause.

Brandon further claims that his argument is bolstered because many of the potential jurors read a news article printed on the Friday immediately preceding the Monday trial date. However, Brandon did not renew his motion for a change of venue based on the Friday article.

After a thorough review of the record, we determine that the newspaper articles were factual and void of editorializing. Moreover, Brandon failed to demonstrate through voir dire, or at any other time, that the news reports were inflammatory or that they inflamed the prejudice of the community such as to warrant a change of venue. Denial of a motion for change of venue is not reversible error in the absence of an abuse of discretion by the trial court. State v. Smith (1986), 220 Mont. 364, 377, 715 P.2d 1301, 1309. We hold that the District Court did not abuse its discretion in denying Brandon’s motion for a change of venue.

Affirmed.

JUSTICES HUNT, GRAY, NELSON and WEBER concur.