author: JUSTICE McDONOUGH

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DAVID GREGORY GOMMENGINGER, Defendant and Appellant.
    No. 89-400.
    Submitted on Briefs Jan. 25, 1990.
    Decided March 29, 1990.
    790 P.2d 455.

      Stephen J. Nardi, Sherlock & Nardi, Kalispell, for defendant and appellant.
    Marc Racicot, Atty. Gen., Patricia Schaeffer, Asst. Atty. Gen., Helena, Scott B. Spencer, County Atty., Libby, Susan Loehn, County Atty., Lincoln, for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Defendant David G. Gommenginger appeals the judgment of the Nineteenth Judicial District, Lincoln County, Montana, convicting him of three counts of criminal sale of dangerous drugs in violation of § 45-9-101, MCA. We reverse and remand the case for a new trial.

The Defendant raises the following issues on appeal:

(1) Did the District Court err in admitting evidence allegedly regarding the Defendant’s character in the State’s case-in-chief?

(2) Did the District Court err in limiting the scope of the cross-examination of the State’s chief witness?

(3) Was there sufficient evidence to support the convictions of criminal sale of dangerous drugs on Counts III and IV?

During the summer of 1988, the Lincoln County Sheriff’s Department conducted an undercover drug investigation of various persons in the area around Libby, Montana. Detective Don Bernall hired an undercover agent, Mike Hewson (the informant), to facilitate the investigation. The informant worked from June 7 to August 28, 1988 under the supervision of Bernall and Officer Clint Gassett. Officer Bernall testified that the informant’s salary was not contingent upon obtaining arrests and convictions; he was paid a flat rate for his services and was provided with expense money, including money to buy drugs.

In the State’s case-in-chief, Bernall testified that the informant was given a list of potential people to infiltrate that were drug dealers in the community and that the Defendant’s name was on that list. The informant also testified in the State’s case-in-chief that he was supplied with a list of potential drug dealers, which included the Defendant. The informant then began his investigation by circulating in the bars. He first dealt with a man named Baldwin who then referred him to a woman named Mandy Curtiss as a source for narcotics. Curtiss allegedly became the go between in a series of deals where the informant allegedly bought marijuana, “crank,” and cocaine from the Defendant and other persons under investigation.

As a result of the investigation, an information was filed in the District Court on September 15, 1988 charging the Defendant with the following offenses: (1) count I, criminal sale of dangerous drugs, a felony, on July 9, 1988; (2) count II, criminal sale of dangerous drugs, a felony, or in the alternative, conspiracy to commit or accountability for the criminal sale of dangerous drugs, a felony, on July 10, 1988; (3) count III, criminal sale of dangerous drugs, a felony, on July 16, 1988; (4) count IV, criminal sale of dangerous drugs, a felony, or in the alternative, accountability for the criminal sale of dangerous drugs, a felony, on August 3, 1988, all alleged to have been committed in Lincoln County, Montana.

One of Defendant’s theories in defense of the charges was that the informant was a drug dependent individual who was double dealing with the Lincoln County Sheriff’s Department. Defendant alleges that the informant had his own extensive drug habit that he was supporting while employed by the Sheriff’s Department and that he supplied drugs to the Sheriff’s office and alleged that they were from the Defendant, whereas in reality he was supplying the drugs himself. This enabled the informant to sustain his habit and avoid the risk of criminal prosecution.

The State offered testimony tending to establish the necessity of narcotic use by an informant in such clandestine operations as means of maintaining an effective cover. In his testimony, the informant stated that he used drugs as part of his cover. In a pretrial statement, Officer Bernall also stated that the informant showed signs of drug dependence, and that he “used a drugger to catch a drugger.” On one occasion, the informant’s testimony indicates that he supplied and used cocaine with Curtiss, for the alleged purpose of maintaining his cover. On this occasion, the informant took out two hypodermic needles, allegedly in his possession as part of his cover, and directly injected, cocaine intravenously with Curtiss.

Based on such evidence, the Defendant sought to prove that the informant’s need for drugs to support his habit was the motivation to use his cover as a law enforcement agent to sell and use drugs and still portray himself as an effective informant. The Defendant also sought to introduce evidence of the informant’s drug use in the investigations of other suspects in the Libby area and his drug use prior to being employed as an agent. However, the State’s motion in limine to exclude evidence of the informant’s involvement with drugs and drug dependency was granted as to any instances beyond the scope of the res gestae of the charges against this particular defendant.

At trial the jury found the Defendant guilty of criminal sale of dangerous drugs on counts I, III, and IV of the information and not guilty on count II. His wife later plead guilty to the criminal sale of dangerous drugs that occurred under count IV. Defendant maintains that her testimony absolves the Defendant of any responsibility for that transaction. Defendant has no prior felony convictions or criminal record except for traffic violations. The Defendant was sentenced to 13 years imprisonment in the Montana State Prison and fined $2500.00. His subsequent motion for new trial was denied, and he now appeals the denial of that motion and the sufficiency of the evidence as to counts III and IV, raising the issues enumerated earlier.

I.

Defendant maintains that the trial court erred in admitting evidence of the Defendant’s bad character during the State’s case-in-chief. On direct examination Officer Bernall testified that the informant was provided with a list of “known” drug dealers in the Libby community to infiltrate and that the Defendant was on that list. On redirect examination Bernall further testified:

“Q. (by Mr. Spencer): Partly, what are you also relying on?

“A. (by Officer Bernall): My personal knowledge.

“Q. Of what?

“A. Mr. Gommenginger.

“Q. And where did you get that personal knowledge from?

“A. From confidential informants and other officers.

“Q. And what is the information?

“A. That he is a cocaine dealer.”

The trial court ruled, and the State maintains, that defense counsel opened up the door for the admission of this testimony with the following statement made during opening:

“To begin with, we have an informant who is initially before he begins working told by the detective here, Mr. Bernall, that Greg is someone in whom they are interested in getting a conviction for a drug sale.

“So the informant immediately has incentive to pursue my client.

We disagree. Rule 405(a), M.R.Evid. provides that proof of the Defendant’s character may be made by testimony as to reputation or in the form of an opinion. Thus, not only is Officer Bernall’s testimony hearsay, it contains elements of both opinion and reputation evidence of the Defendant’s bad character as relating to his disposition to commit the crime with which he was charged. See State v. Alberts (1969), 80 N.M. 472, 457 P.2d 991, 993; State v. Ramirez Enriquez (1987), 153 Ariz. 431, 737 P.2d 407, 408. Rule 404(a)(1), M.R.Evid., only allows the prosecution to introduce such evidence of an accused’s bad character as proof that he acted in conformity therewith to rebut defense evidence of the accused’s good character offered to prove the same. Here, defense counsel’s opening statement merely stated that law enforcement told the informant that they were interested in getting a conviction against the Defendant for a drug sale. The opening statement did not even deny that the Defendant was a drug dealer. This statement did not put the Defendant’s good character or reputation in the community into issue so as to open the door to allow the State to present character evidence in its case-in-chief. See e.g. State v. Atlas (1986), 224 Mont. 92, 728 P.2d 421 (allowing the State to introduce videotaped evidence in its case-in-chief of Defendant’s former lover to refute Defendant’s opening statement that portrayed him as a loving husband devastated by the death of his wife.)

The testimony of Officer Bernall amounted to evidence of the Defendant’s bad character as a drug dealer that would invite the jury to infer the Defendant’s guilt based on his alleged reputation as a drug dealer in the Libby community. The Defendant did not put his character into issue, and admission of such evidence constitutes reversible error. See Michelson v. United States (1948), 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168.

II.

The Defendant also argues that the District Court erred in granting the State’s motion in limine restricting the cross-examination of the State’s chief witness concerning the informant’s drug use to the res gestae of the crimes charged. The Defendant argues that this effectively denied him his fundamental right of confrontation guaranteed by the Sixth Amendment of the United States Constitution.

The State contends that cross-examination was properly limited pursuant to their motion in limine and Rule 608, M.R.Evid. The Rule, which is nearly identical to its federal counterpart, provides in pertinent part;

“Rule 608. Evidence of character and conduct of witness.

“(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness . . . .” Rule 608, M.R.Evid. Under Rule 608, reference to specific instances of conduct for the purpose of proving a witness’s character for truthfulness or untruthfulness is never permitted on direct examination of another witness. State v. McLean (1978), 179 Mont. 178, 185, 587 P.2d 20, 25. Specific instances of conduct may, however, be introduced through cross-examination if the trial court in its discretion determines that the evidence is probative of the witness’s credibility. Rule 608, M.R.Evid., McLean, supra.

Rule 608(b) is intended to regulate only the use of specific instances of conduct offered to prove that the witness is generally an untruthful person unworthy of belief. On the other hand, bias or motive of a witness to testify falsely is not a collateral issue because it bears directly on the issue of the defendant’s guilt; thus, extrinsic evidence is admissible to prove that the witness has a motive to testify falsely. United States v. James (2d Cir. 1979), 609 F.2d 36, 46; Johnson v. Brewer (8th Cir. 1975), 521 F.2d 556; United States v. Kinnard (D.C.Cir. 1972), 465 F.2d 566, 573-574; United States v. Barrett (D.Me. 1984), 598 F.Supp. 469, 475, aff'd (1st Cir. 1985), 766 F.2d 609, 615. See also, e.g. State v. Dougherty (1924), 71 Mont. 265, 229 P. 735; State v. Carns (1959), 136 Mont. 126, 345 P.2d 735.

Furthermore, an accused’s right to demonstrate the bias or motive of prosecution witnesses is guaranteed by the Sixth Amendment right to confront witnesses. Alford v. United States (1931), 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624; Greene v. McElroy, (1959), 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377; Davis v. Alaska (1974), 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347. In Alford, the Supreme Court held that it was an abuse of discretion and prejudicial error to “cut off in limine all inquiry on a subject with respect to which the defense was entitled to a reasonable cross examination.” 282 U.S. at 694, 51 S.Ct. at 220, 75 L.Ed. at 629. In Davis, the trial court improperly restricted the Defendant’s attempt to demonstrate bias or motive of the State’s witness through cross-examination:

“. . . [w]hile counsel was permitted to ask Green whether he was biased, counsel was unable to make a record from which to argue why Green might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness . . . .”

94 S.Ct. at 1111. Here, limitation of cross-examination could also result in the jury viewing the credibility of the informant in a vacuum.

Courts have long recognized that the testimony of informants should be scrutinized closely to determine “whether it is colored in such a way as to place guilt upon a defendant in furtherance of the witness’s own interests.” Fletcher v. United States (D.C.Cir. 1946), 158 F.2d 321, 322. Such scrutiny is particularly important in narcotics cases involving informant’s that are habitual drug users:

“Law enforcement officials are open about their use of informants, but there is less discussion about why their informer’s perform.

“. . . the addict is only valuable if he produces fruitful tips or arranges sales which lead to prosecutions. The addict-turned-informer may therefore be desperate not only to produce results for the police, but also to avoid retribution from powerful figures in the drug trade. This desperation may well lead him to lie, and increases the danger that he will misrepresent the involvement of those whom he fingers.

“. . . The Government’s use of infiltrator’s and informants to combat the drug trade may well be a necessity, and it is not unconstitutional per se. It has been established that their testimony may be used to obtain convictions, even if it is uncorroborated. But when they do testify at trial, the court must exercise special care to protect the defendant’s right to the ‘established safeguards of the Anglo-American legal system’— cross-examination and proper instructions to the jury.”

Kinnard, 465 F.2d at 571-572 [citations omitted]. In Kinnard, the informant’s testimony implicating the defendants was uncorroborated. Defense counsel attempted to establish the informant’s addiction through extrinsic evidence of the needle marks on the informant’s arms as relevant to the frequency of his drug use. The Circuit Court of Appeals held that the trial court erred in refusing to allow this evidence.

Here, the informant’s testimony is uncorroborated as to counts I and III, and uncorroborated as to the charge of direct sale under count IV, And while defense counsel was permitted to inquire about the informant’s needle marks in this case, this inquiry was abruptly terminated at the point that such evidence could indicate drug usage beyond the res gestae, that is beyond the incident of intravenous drug use with Curtiss that was allegedly part of his cover. All other inquiry into the informant’s alleged drug habits was also limited to the res gestae pursuant to the State’s motion, thus the prosecution was able to maintain or allude that all of the informant’s drug use was merely part of his cover. Because of this limitation, the defense was effectively precluded from inquiring into whether the informant was drug dependent or addicted and whether such dependence gave him a motive to testify falsely.

Generally, it is within the district court’s discretion to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence 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. Rule 611(a), M.R.Evid. Also, evidence that is relevant may nevertheless be excluded by the district court if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Rule 403, M.R.Evid. However, the 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. United States v. Tracey (1st Cir. 1982), 675 F.2d 433, 437. Therefore, upon remand for new trial, the Defendant should be afforded latitude in cross-examination, and be allowed to introduce extrinsic evidence regarding the informant’s alleged habitual drug use as relevant to his motive to testify falsely, if denied by the informant subject to the usual limitations of Rules 403 and 611, M.R.Evid.

III.

As his final issue, the Defendant argues that the evidence was insufficient to support a conviction on counts III. and IV. The standard of review of sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Krum (Mont. 1989), [238 Mont. 359,] 777 P.2d 889, 891, 46 St.Rep. 1334, 1336; State v. Kutnyak (1984), 211 Mont. 155, 174, 685 P.2d 901, 910.

With respect to the charges under count IV for direct sale and accountability for sale of dangerous drugs, the State’s evidence tended to establish the following facts: On August 3, 1988, Curtiss went to the informant’s house and asked him if he wanted to buy some “crank,” a form of methamphetamine. She attempted to set up a deal through the Defendant’s wife. The Defendant’s wife was unable to get any “crank,” but she told the informant that she could get him some cocaine. After some further arrangements, the informant gave the Defendant’s wife $100.00 and arranged for a' delivery of cocaine at his house. The informant testified that during these arrangements he saw the Defendant’s wife talking with the Defendant.

Later, that day, as the informant was talking with Officer Bernall over the phone, he saw the Defendant and his wife drive up in front of the informant’s home. Officers Bernall and Gassett later observed the Defendant’s vehicle parked in the informant’s driveway. The Defendant and his wife came in, sat on the couch, and the Defendant’s wife handed the informant a gram of cocaine which he placed on the coffee table. She then asked if she could have some for setting up the deal. The informant agreed and gave her a mirror and a razor blade with which she cut three lines of cocaine. The informant testified that the Defendant and his wife then each snorted a line but he did not. Officer Bernall testified that through the informant’s body wire he heard the informant tell the others that he wasn’t going to snort a line because he didn’t do it that way. The Defendant and his wife left and the informant delivered the remaining cocaine to officer Bernall.

The informant’s testimony constitutes direct evidence that the Defendant aided or abetted his wife in the commission of the sale. See § 45-2-302(3), MCA (Accountability); § 45-9-101, MCA (Criminal sale of dangerous drugs). The Defendant drove his wife to the informant’s house and was present during the transaction. At no point did he attempt to terminate his efforts to facilitate the sale. See § 45-2-302(3)(b), MCA. The evidence on count IV is at least sufficient for a rational trier of fact to find the essential elements of the crime of accountability for the criminal sale of dangerous drugs beyond a reasonable doubt. Sections 45-2-302, 45-9-101, MCA; Krum, 777 P.2d at 891; Kutnyak, 685 P.2d at 910.

With respect to count III, alleging criminal sale of dangerous drugs, the informant’s testimony was offered to establish the following facts: On July 16th, 1988, the informant met with Curtiss in order to set up a cocaine buy. No police surveillance was used. The informant and Curtiss, along with a friend of Curtiss, eventually went to Harold’s Tavern, the Defendant’s place of business, where they saw a vehicle, supplied by Defendant’s employer and generally used by the Defendant, parked outside. Curtiss and friend went into the bar and returned approximately fifteen minutes later with a “bindle” (approximately one gram) of cocaine which they gave to the informant. The informant testified that Curtiss stated the cocaine was from the Defendant. He also testified that he gave Curtiss $100.00, which she then took into the bar, after taking out some cocaine for setting up the deal. The informant then went home and delivered the cocaine to the Sheriff’s Department about two and one-half hours after the transaction.

Curtiss’ testimony regarding the essential elements of the offense charged under count III wholly contradicts the testimony of the informant. She testified that during this incident the informant had several bindles of cocaine in his possession and that she and a friend entered the bar at his request looking for someone to purchase cocaine from the informant. She testified that the informant suggested that they see if the Defendant was interested in making a purchase. When she failed to find any prospective purchasers, she then went back outside the bar, returned the cocaine to the informant, took a small amount for her efforts, and returned to the bar.

The only uncontradicted evidence offered through the informant’s testimony is that the vehicle the Defendant usually drove was parked outside the tavern. The informant did not observe the alleged sale or the Defendant’s presence at the tavern, nor did he have any contact with the Defendant on that day. The only evidence implicating the Defendant is the statement of Curtiss allegedly made to the informant that the Defendant was the source of the cocaine the informant alleges she had just delivered.

The Defendant contends that the alleged statement of Curtiss as testified to by the Defendant was inadmissible due to lack of foundation for introduction of a co-conspirator’s statement, under Rule 801(d)(2)(E), M.R.Evid. The State argues that the necessary foundation establishing the existence of a conspiracy was laid and therefore the out of court statement of Curtiss fits under the coconspirator exclusion to the hearsay rule. See Rule 801(d)(2)(E), M.R.Evid,; State v. Stever (1987), 225 Mont. 336, 732 P.2d 853.

To qualify for a hearsay exclusion under Stever, the statement must have been made in the course of and in furtherance of the conspiracy by a coconspirator of the defendant. Rule 801(d)(2)(E), M.R.Evid., 732 P.2d at 857. Furthermore, a separate confrontation clause analysis must be satisfied in order to guarantee the reliability of the challenged coconspirator statements. Stever, 732 P.2d at 859. Relevant criteria to be considered are (1) the declarant’s knowledge of the identity and role of the defendant in the crime; (2) the possibility that the declarant was relying upon faulty recollection; and (3) the circumstances under which the statements were made, possibly indicating that the declarant might be lying about the defendant’s involvement in the conspiracy; and (4) whether the testimony is so “crucial” to the prosecution or “devastating” to the defense as to require reversal of the conviction. Stever, 732 P.2d at 859; State v. Fitzpatrick (1977), 174 Mont. 174, 569 P.2d 383, 392; United States v. Snow (9th Cir. 1975), 521 F.2d 730, 734-35.

However, we need not determine if the statement is excluded from hearsay under the co-conspirator rule in this case, for even if properly admitted, the statement is not sufficient to support the conviction on count III. It is the same type of statement admitted upon a proper foundation under Rule 801(d)(1)(A), M.R.Evid., which provides:

(d) Statements which are not hearsay. A statement is not hearsay if:

“(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony

Rule 801(d)(1)(A), M.R.Evid. See e.g., State v. Fitzpatrick (1980), 186 Mont. 187, 196, 606 P.2d 1343, 1348; see also State v. Charlo (1987), 226 Mont. 213, 215, 735 P.2d 278, 279.

Rule 801(d)(1)(A), theoretically enables the State to make out a prima facie case even if its only evidence is a previous inconsistent statement of this type. However, if the only evidence of some essential fact is such a previous statement, the party’s case fails. United States v. Orrico (6th Cir. 1979), 599 F.2d 113, 118, citing 4 Weinstein’s Evidence 801-74. It is doubtful that in any but the most unusual cases, a prior inconsistent statement alone will suffice to support a conviction since it is unlikely that a rational trier of fact could find the essential elements of the crime charged beyond a reasonable doubt. Orrico, 599 F.2d at 118; see also Krum, 777 P.2d at 891; Kutnyak, 685 P.2d at 910.

Here, the alleged extra-judicial statement of Curtiss lacks any indicia of reliability, particularly since Curtiss has also been charged for similar offenses arising out of the same series of transactions. An unreliable prior inconsistent statement should not be the sole, substantive evidence upon which a jury should be allowed to base guilt. State v. White Water (1981), 634 P.2d 636, 638-39. The evidence is insufficient to sustain a conviction on count III, and warranted a verdict directed in favor of the Defendant on that count. White Water, 634 P.2d at 639; State v. Perez (1952), 126 Mont. 15, 243 P.2d 309.

The charges under count III of the information are hereby dismissed, the judgment of the District Court is reversed and the cause is remanded for a new trial.

REVERSED and REMANDED for further proceedings consistent with this opinion.

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


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. UNA R. EARL, Defendant and Appellant.
    No. 89-534.
    Submitted on Briefs Feb. 22, 1990.
    Decided March 30, 1990.
    Rehearing Denied April 19, 1990.
    790 P.2d 464.

      Larry Jent, Bozeman, for defendant and appellant.
    Marc Racicot, Atty. Gen., Patti Powell, and James Yellowtail, Asst. Attys. Gen., Helena, and Craig Buehler, Fergus County Atty., Lewis-town, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Una R. Earl (Mrs. Earl) was convicted by jury trial in the District Court for the Tenth Judicial District, Fergus County, of misdemeanor failure to keep a bear tag attached to a bear she shot. She appeals. We affirm.

The issues are:

1. Was there sufficient evidence to convict Mrs. Earl of misdemeanor violation of § 87-2-509, MCA?

2. Did the Justice Court and the District Court properly deny Mrs. Earl’s motion to dismiss based on a statute of limitations?

3. Did the District Court act properly in allowing the testimony of Agent Ron Hanlon about certain conversations?

In March 1988, two Montana Fish and Game inspectors made an inspection of Walt’s Taxidermy near Judith Gap, Montana. The small shop was owned and operated by Walt Earl and was located at his home. Mr. Earl and his wife, Una Earl, had been licensed outfitters and guides in the State of Montana for some years.

Inside a freezer in the taxidermy shop, the inspectors found a plastic bag containing a frozen black bear hide with no visible tag attached. Mr. Earl speculated that the tag must be frozen inside the hide. The inspectors took the hide with them, intending to thaw it and find the tag.

The inspectors were unable to find a tag when the hide thawed. They called the Earls and told them that no tag was attached to the hide. Mr. Earl responded that he had found the tag inside the freezer and that Mrs. Earl had shot the bear in 1984. The inspectors returned to the Earls’ home, retrieved the bear tag from Mrs. Earl, and cited her for “fail[ing] to keep tag attached to hide,” a violation of § 87-2-509, MCA.

As a misdemeanor, this action was first brought in justice court. Mrs. Earl pled guilty in that court after unsuccessfully moving to dismiss based on a statute of limitations argument. She then appealed to district court, where she again unsuccessfully raised her statute of limitations argument. She was tried in district court before a six-person jury, was found guilty, and was fined $200 with a $20 surcharge.

I

Was there sufficient evidence to convict Mrs. Earl of misdemeanor violation of § 87-2-509, MCA?

Our standard of review is whether any rational trier of fact could have found Mrs. Earl guilty beyond a reasonable doubt of the essential elements of the crime. See State v. Price (Mont. 1988), 762 P.2d 232, 234, 45 St.Rep. 1798, 1800.

Section 87-2-509, MCA, provides that

“When any person takes or kills any game animal . . .the person shall' immediately thereafter . . . attach the tag, coupon, or other marker to the animal .... Such tag, coupon, or other marker shall be kept attached to the carcass so long as any considerable portion of the carcass remains unconsumed . . . .”

The elements that the State was required to prove to support its charge against Mrs. Earl were that she 1) purposely or knowingly, 2) failed to keep a tag attached to the bear hide, 3) while it was possessed by her. Mrs. Earl argues that the State has failed to prove that she was in possession of the bear hide at any time when it was not tagged.

“Possession” is defined as the knowing control of something for a sufficient time to be able to terminate control. Section 45- 2-101(52), MCA. Mrs. Earl testified that after she shot the bear, she tagged it while her husband gutted it. The family ate the meat and the hide was stored in the taxidermy freezer. According to Mrs. Earl’s testimony at trial, she knew where the bear hide was at all times. She made no statement indicating that she had given it to her husband or otherwise abandoned control over it. We conclude that a rational jury could have found beyond a reasonable doubt that Mrs. Earl possessed the bear hide at the time of the 1988 inspection.

II

Did the Justice Court and the District Court properly deny Mrs. Earl’s motion to dismiss based on a statute of limitations?

Mrs. Earl argues that this prosecution was barred under § 45-1-205(2), MCA, which provides:

“(2) Except as otherwise provided by law, prosecutions for other offenses are subject to the following periods of limitation:

“(b) A prosecution for a misdemeanor must be commenced within 1 year after it is committed.”

She asserts that the statute of limitations began to run in 1984 when she shot the bear and gave the hide to her husband.

Mrs. Earl’s continuing possession of the bear hide is discussed above under Issue I. As to whether the prosecution must have been brought within one year after the bear was shot, the District Court determined that this offense was a continuing one. We agree. Under § 87-2-509, MCA, the offense continues as long as “any considerable portion of the carcass remains unconsumed.” We conclude that the court did not err in interpreting that language to mean as long as the bear hide remained to be taxidermied.

III

Did the District Court act properly in allowing the testimony of Agent Ron Hanlon about certain conversations?

The conversations at issue occurred in 1986 between Mr. Earl and United States Fish and Wildlife Service Agent Ron Hanlon, when Mr. Hanlon was inspecting Walt’s Taxidermy. Mr. Hanlon testified at trial as follows:

“Q. All right. Did the discussion about a bear that Una Earl shot come up during that conversation?

“MR. JENT: Objection, the question calls for a hearsay answer.

“THE COURT: Overruled.

“Q. (By Mr. Buehler) Go ahead.

“A. Yes, a conversation regarding a bear that she shot was discussed.

“Q. You were part of that conversation.

“A. Yes, I was, sir.

“Q. That was pursuant to the reason that you were there talking about various different things, is that correct?

“A. That is correct, sir.

“Q. All right. What did you learn about a bear that was shot by Una Earl?

“MR. JENT: Objection, the question is testifying from what he learned, which is hearsay.

“THE COURT: Overruled.

“A. I — I learned through conversation and records that I examined that Una Earl killed a black bear in 1984, May of 1984 as I recall. And that this bear was later given to an individual, I believe his name was Lehman, in Pennsylvania to be taxidermied. This bear, along with at least one other were sold to Mr. Lehman for two hundred fifty dollars. The bear that Una Earl shot, and was described to me as the bear that she shot in 1984, was described as being a yearling bear. And it was further described as — as being dorsal cut, down through the back, so that it could further be taxidermied in Pennsylvania as a lifesize bear.

“MR. JENT: Objection, Your Honor. May counsel approach the bench?

[A bench conference was held.]”

Mrs. Earl contends that the above was hearsay evidence not within any hearsay exception.

The State contends that because Mrs. Earl was present at the above conversation and made no objections to her husband’s remarks, the testimony about the conversation was admissible under the hearsay exception for admissions of a party, Rule 801(2), M.R.Evid. Additionally, the State contends that the testimony has not been shown to be prejudicial to the defendant and that even if its admission was error, it was harmless error.

Mrs. Earl has not shown any relationship between the above testimony and any element of the misdemeanor crime with which she was charged. The State did not refer to this testimony in closing argument. “Only if there was a reasonable possibility that inadmissible evidence might have contributed to the conviction is there reversible error.” State v. Brush (1987), 228 Mont. 247, 251, 741 P.2d 1333, 1335. Even if the admission of the testimony was error, it has not been shown to be anything but harmless error.

Affirmed.

JUSTICES HARRISON, BARZ, McDONOUGH and WEBER concur.


author: JUSTICE HARRISON

text:
    JOSEPH M. WILHELM, Claimant and Appellant, v. OWENS ENTERPRISES, INC., Employer, and EBI/Orion Group, Defendant and Respondent.
    No. 89-504.
    Submitted on Briefs Jan. 18, 1990.
    Decided April 5, 1990.
    790 P.2d 467.

      Kenneth E. O’Brien, Hash, O’Brien and Bartlett, Kalispell, for claimant and appellant.
    Charles E. McNeil, Missoula, for defendant and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Joseph Wilhelm, claimant below, appeals the decision of the Workers’ Compensation Court holding that the defendant insurer, EBI/ Orion Group, properly terminated his temporary total occupational disease benefits. We find that the decision of the Workers’ Compensation Court did not comport with the principles set forth in Coles v. Seven Eleven Stores (1985), 217 Mont. 343, 704 P.2d 1048, and we therefore reverse and remand.

Wilhelm presents two issues for review:

1. Did the Workers’ Compensation Court err in concluding that Wilhelm’s benefits were properly terminated pursuant to the Coles decision?

2. Did the Workers’ Compensation Court err in denying Wilhelm’s motion to exclude evidence that did not form the basis for terminating Wilhelm’s benefits?

At the time of trial claimant Joseph M. Wilhelm was 59 years old. Wilhelm, whose formal education ended when he graduated from high school in 1947, has spent most of his life working in the woods. For the past fifteen years Wilhelm worked for Owens Enterprises, primarily running a chainsaw, but at times skidding logs or piling brush.

During extremely cold weather in November of 1985, Wilhelm cut frozen timber which caused his saw to “hang up” and vibrate excessively. The next day Wilhelm first noticed numbness is his right hand and fingers, but he continued to work until February, 1986 despite the chronic numbness.

Wilhelm consulted Dr. Bruce A. Allison on March 4, 1986. Dr. Allison advised Wilhelm that the muscle weakness and atrophy Wilhelm experienced in his right hand was related to his operating a chainsaw. Dr. Allison referred Wilhelm to Dr. Robert D. Schimpff, who diagnosed Wilhelm’s condition as advanced right ulnar neuropathy related to occupational exposure to a vibrating power saw.

During the period April 1, 1983 through April 1, 1986, the employer, Owens Enterprises, Inc., was enrolled under Compensation Plan II and its insurer was EBI/Orion Group. The coverage period included Wilhelm’s last day of work and last exposure to use of a chainsaw while employed with Owens.

Wilhelm notified his woods boss, Brandon Owens, of his condition on April 8, 1986. This was his employer’s first notification. On April 10, 1986, Wilhelm filed a claim for compensation with EBI. EBI accepted liability for Wilhelm’s condition as an occupational disease and paid benefits on a bi-weekly basis. EBI also advanced Wilhelm $5,000 under the Occupational Disease Act by Wilhelm’s Petition for Partial Lump Sum Settlement. EBI employed Vocational Resources, Inc. to assist in retraining and securing employment for Wilhelm.

Dr. Allison found that Wilhelm’s condition had stabilized and maximum healing had been achieved as of August 24, 1987. .In an August 28, 1987 letter, EBI informed Wilhelm that his benefits would be terminated in fourteen days since Dr. Allison had approved Wilhelm to return to work, though not in the woods running a chainsaw. Attached to the letter were a copy of Dr. Allison’s report determining Wilhelm could return to work with restrictions and two job analyses signed by Dr. Allison. Two weeks later Wilhelm’s benefits were in fact terminated.

The termination was based on the two job analyses concerning employment as a janitor with Kalispell School District No. 5 and with Doug Johns Building Systems, also in Kalispell. Dr. Allison had signed both job analyses. Both analyses indicated a great amount of time spent on the jobs required grasping. Wilhelm’s condition made grasping difficult and painful. In a Physical Activities Checklist completed for Vocational Resources, Dr. Allison noted that Wilhelm should not lift over 25 pounds with his right arm nor use vibratory tools and should never grasp with his right hand. In addition, the Johns Building Systems job analysis required one to two years experience, which Wilhelm did not have. Vocational Resources was unable to find Wilhelm a job.

Before considering the issues presented we must first address a procedural matter. Following a trial, the hearings examiner entered Findings of Fact and Conclusions of Law and a Proposed Judgment which were adopted by the Workers’ Compensation Court by an order dated August 10, 1989. After the Workers’ Compensation Court entered its judgment, Wilhelm filed a Motion for Rehearing. The Workers’ Compensation Court denied the motion, finding that-the requirements for rehearing under Montana law were not met and that the record supports the Judgment issued on August 10, 1989. Wilhelm then filed his Notice of Appeal to this Court from the Workers’ Compensation Court’s Order denying his Motion for Rehearing.

EBI argues that this Court cannot review the findings or judgment since they were not specifically appealed from. Rule 4(c) of the Montana Rules of Appellate Procedure states that the notice of appeal shall designate the judgment, order or part thereof appealed from. However, the appeal will not be dismissed for informality of form or title of the notice of the appeal. Rule 4(c), M.R.App.P.

It is correct that the Notice of Appeal was from the Order denying the Motion for Rehearing rather than from the findings and judgment. While we encourage accuracy and admonish attorneys to be precise, the misnomer contained in the Notice of Appeal is not fatal to the instant appeal. In the appeal before this Court the issues raised are substantially the same as the issues appellant raised in his Motion for Rehearing. We will therefore treat the appeal as an appeal from the August 10, 1987 Workers’ Compensation Court Order adopting the Findings of Fact and Conclusions of Law of the hearings examiner and entering Judgment. This is in accordance with the philosophy of modern appellate practice that technical defects of procedure should not bar a party from access to the courts. Tefft v. Tefft (Mont. 1981), [- Mont. -,] 628 P.2d 1094, 1097, 38 St.Rep. 837, 840 (citing J.C. Penney, Inc. and F.W. Woolworth Co. v. Employment Security Division (Mont. 1981), [-Mont. -,] 627 P.2d 851, 38 St.Rep. 694).

ISSUE I. Did the Workers’ Compensation Court err in concluding that Wilhelm’s benefits were properly terminated pursuant to the Coles decision?

The standard of review applied to decisions of the Workers’ Compensation Court is whether there is substantial credible evidence to support the findings and conclusions of the Workers’ Compensation Court. Sharkey v. Atlantic Richfield Co. (Mont. 1989), [238 Mont. 159,] 777 P.2d 870, 872, 46 St.Rep. 1169, 1171. We will not substitute our judgment for that of the Workers’ Compensation Court. Schrapps v. Safeway Stores, Inc. (Mont. 1989), [238 Mont. 355,] 777 P.2d 887, 888, 46 St.Rep. 1330, 1331.

Section 39-71-609, MCA, controls termination of benefits by an insurer. The statute in effect at the time read:

“If an insurer determines to deny a claim on which payments have been made under 39-71-608 during a time of further investigation or, after a claim has been accepted, terminates biweekly compensation benefits, it may do so only after 14 days’ written notice to the claimant, the claimant’s authorized representative, if any, and the division. However, if an insurer has knowledge that a claimant has returned to work, compensation benefits may be terminated as of the time the claimant returned to work.”

Section 39-71-609, (1987) MCA. The August 28, 1987 letter which EBI sent to Wilhelm contained the requisite fourteen-day notice.

Additionally, the Workers’ Compensation Court found that EBI had met the four requirements it had set out in its decision in Coles v. Seven Eleven Stores, Docket No. 2000 (decided November 24, 1984) which this Court affirmed in Coles v. Seven Eleven Stores (1985), 217 Mont. 343, 704 P.2d 1048. The Workers’ Compensation Court’s decision in Coles requires that before temporary total benefits may be terminated the insurer has the duty to investigate the claimant’s condition and obtain the following information concerning the claimant’s ability to return to work:

“(1) a physician’s determination that the claimant is as far restored as the permanent character of his injuries will permit;

“(2) a physician’s determination of the claimant’s physical restrictions resulting from an industrial accident;

“(3) a physician’s determination, based on his knowledge of the claimant’s former employment duties, that he can return to work, with or without restrictions, on the job on which he was injured or another job for which he is fitted by age, education, work experience and physical condition;

“(4) notice to the claimant of receipt of the report attached to a copy of the report.”

Coles, Workers’ Compensation Court, Docket No. 2000, at p. 11.

The Workers’ Compensation Court found that the four requirements of the Coles decision have been met by the fact (1) Dr. Allison did find that maximum healing had been reached by August 24, 1987; (2) Wilhelm could return to work as a janitor or custodian with restrictions that he only perform light work; (3) consideration was given to the essential factors for other employment; and (4) notice was given to the claimant Wilhelm with a copy of the reports which were the basis of the termination.

Wilhelm agrees that EBI’s August 28 letter meets Coles requirements (1), (2) and (4), but disputes the Workers’ Compensation Court’s conclusion as to requirement (3). The Workers’ Compensation Court held that Dr. Allison’s release of Wilhelm to work as a janitor or custodian was supported by the evidence presented at the hearing.

The Workers’ Compensation Court’s conclusion was apparently based on the two job analyses for janitor position signed by Dr. Allison and attached to the August 28 letter, one with School District No. 5 and the other with Johns Building Systems. However, in his deposition Dr. Allison testified that he was only signing off on the job analyses with respect to the physical requirements of the job. No opinion was rendered as to the experience or education needed to obtain either of the jobs.

The third Coles requirement incorporates the notion that if a claimant is unable to return to the job on which he was injured, the claimant must be released to work at another job for which he is fitted by “age, education, work experience and physical condition.” Dr. Allison testified that he signed off with respect only to Wilhelm’s physical condition. All other evidence adduced at trial indicated Wilhelm would be precluded from custodial positions by virtue of his age, education and work experience. Wilhelm is a 59-year-old high school graduate whose work experience has been almost exclusively limited to running a chainsaw in the woods. Dr. Allison’s report released Wilhelm to do “light work with non vibrating machinery.” (Emphasis supplied by Dr. Allison.) Dr. Allison’s report was the only information EBI had available to it that Wilhelm, by reason of his age, education, experience and physical condition, could be competitive in the labor market.

The evidence produced at trial does not establish that Wilhelm, by reason of his age, education and work experience, would be competitive in the positions listed on the two job analyses signed by Dr. Allison. Wilhelm has no previous experience or training as a janitor or custodian. Clifford Larson, EBI’s vocational rehabilitation expert, testified that Wilhelm would not be competitive for the position with Johns Building Systems since the job analysis required two years of experience. Larson did state that he thought Wilhelm could be competitive for the position with School District No. 5 but never spoke with any one at the school district concerning Wilhelm’s possible employment there.

By contrast Wilhelm presented testimony of vocational rehabilitation expert Dan Schara. Schara testified he spoke with School District No. 5 officials who were of the opinion that Wilhelm would not be competitive because he would have difficulty operating many of the machines school janitors use since the machines (as well as other duties) require the use of two good hands and appropriate finger dexterity. Moreover, School District No. 5 has hundreds of applicants for such positions and school officials expressed the opinion that Wilhelm by virtue of his lack of experience and age would not even be considered for a janitorial position. Additionally, the job analysis for the School District No. 5 position states that the job involves grasping with the right hand four to five hours per day.

Larson’s testimony and Dr. Allison’s signing off on the job analyses seem to be the basis for the Workers’ Compensation Court’s holding that the Coles requirements were met and Wilhelm’s benefits were, therefore, properly terminated. However, as we have pointed out, Dr. Allison testified he signed off only as to Wilhelm’s physical condition to work as a janitor, not as to Wilhelm being fitted by age, education or work experience to work as a janitor. Furthermore, Larson admitted Wilhelm would not be competitive for the janitor job with Johns Building Systems. Larson’s opinion that Wilhelm would be competitive for the School District No. 5 position is suspect in light of the fact that Wilhelm is 59 years old, has no training or experience as a janitor, and would have difficulty operating many of the machines school janitors use. Such testimony indicates this would prevent Wilhelm from being hired by the School District.

For the foregoing reasons greater weight must be accorded the testimony of vocational rehabilitation expert, Schara, who spoke with school officials regarding employment of Wilhelm, than to the testimony of expert Larson, who did not speak with school officials. This established that no reasonable prospect of employment in the normal labor market exists for Wilhelm. As we have previously held:

“ ‘To establish the existence of no reasonable prospect of employment in the normal labor market, a claimant must introduce substantial credible evidence of (1) what jobs constitute his normal labor market, and (2) a complete inability to perform the employment and duties associated with those jobs because of his work-related injury.’ (Citations omitted.) Once a claimant presents evidence showing there is no reasonable prospect of employment, ‘the burden of proof shifts to the employer to show that suitable work is available.’ ”

Coles, at 347, 704 P.2d at 1051 (quoting Metzger v. Chemetron Corp. (1984), 212 Mont. 351, 355 and 356, 687 P.2d 1033, 1035 and 1036).

Dr. Allison’s report releasing Wilhelm to work contained restrictions such that Wilhelm could not return to his normal labor market, cutting timber with a chainsaw. Testimony regarding the janitor positions listed in the two job analyses signed by Dr. Allison, showed Wilhelm’s complete inability to perform the employment and duties associated with those jobs because of his work-related injury.

In the. case at bar, EBI failed to meet the burden of showing that suitable work is available for Wilhelm. All evidence presented tends to show there are no jobs in the local labor market for which Wilhelm is fitted by age, education, work experience and physical condition as mandated by the Coles requirements. The judgment of the Workers’ Compensation Court should be reversed and judgment entered in favor of Wilhelm.

Because we reverse the Workers’ Compensation Court’s judgment on the first issue, it is not necessary to reach the second issue.

We reverse and remand to the Workers’ Compensation Court for proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, McDON-OUGH and SHEEHY, concur.


author: JUSTICE HUNT

text:
    CITY OF BILLINGS, Plaintiff and Appellant, v. TIMOTHY J. WHALEN, Defendant, Respondent, and Cross Appellant.
    No. 89-513.
    Submitted on Briefs Feb. 9, 1990.
    Decided April 5, 1990.
    790 P.2d 471.

      Marc Racicot, Atty. Gen., Jennifer Anders, Asst. Atty. Gen., Helena, Russell C. Fagg, City Prosecutor, Billings, for plaintiff and appellant.
    Michael J. Whalen, Billings, for defendant, respondent, and cross-appellant.
   JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiff and appellant, the City of Billings, appeals from an order of the District Court of the Thirteenth Judicial District, Yellowstone County, which granted the motion to suppress all evidence against the defendant, Timothy J. Whalen and denied the defendant’s motion to dismiss the complaint for lack of speedy trial. We affirm the District Court order on the motion to suppress and dismiss defendant’s cross-appeal of the order for lack of jurisdiction. The issues raised on appeal are:

(1) Did the District Court err in granting defendant’s motion to suppress evidence obtained from an illegal arrest in violation of § 46-6-105, MCA?

(2) Does this Court have jurisdiction over defendant’s cross-appeal to dismiss the complaint for lack of speedy trial?

On October 28, 1988, at approximately 10:15 p.m., the defendant was driving north on North 31st Street in Billings, Yellowstone County, Montana. It was dark outside. As he reached 8th Avenue North, defendant made a left-hand turn onto 8th Avenue and continued to travel along 8th Avenue in a westerly direction. While he was in the process of making his left-hand turn, defendant observed a police car traveling in an easterly direction on 8th Avenue.

The officer driving the police car stated that defendant, “cut the corner,” when making the left-hand turn. Such activity is a misdemeanor traffic violation. Because of this activity, the officer made a U-turn with his vehicle and followed defendant to his home which was approximately two blocks from the point defendant made the questioned left-hand turn. During the time the officer followed the defendant he did not observe anything unusual in defendant’s manner of driving. At no time while he was following defendant did the officer activate the siren or the overhead lights on his vehicle.

Defendant arrived at home and pulled into his driveway. He parked his car, walked to the front door, opened the outer or storm door and began to enter the house. While defendant was performing these activities he noticed the officer’s police car pull into his driveway behind his parked car, still with no lights or siren. Defendant was in a position of straddling the threshold of his home when the officer approached defendant from behind and shouted or called to the defendant to hold on or wait. It is unclear from the record if at that point the officer physically restrained defendant from entering the house or if such restraint occurred after the officer asked defendant for his driver’s license and defendant attempted to enter the house to obtain the license. In either event, the officer placed his hands on the defendant to prevent the defendant from entering the house. Defendant described the restraint as being pulled from the house and the officer described the restraint as “guiding” the defendant.

The officer asked defendant for evidence of insurance and registration. As they walked toward defendant’s car a second police vehicle had arrived. The officer asked defendant to perform certain field sobriety tests after which defendant was handcuffed and placed in the officer’s police vehicle. Defendant was taken to the Yellowstone County Courthouse where a video tape DUI interview was conducted.

Defendant was charged with a DUI offense. On December 30, 1988, defendant was tried in City Court and was convicted on January 16, 1989. On January 16, 1989, the defendant appealed his conviction to District Court. On January 24, 1989, an omnibus hearing was set for April 18, 1989 and a trial date of May 8, 1989. The District Judge issued a new order setting the omnibus hearing for September 1, 1989 and trial for September 18, 1989.

On August 31, 1989, defendant filed consolidated motions to suppress evidence and dismiss the complaint with an alternative request for an evidentiary hearing. On September 14, 1989, the District Court granted defendant’s motion to suppress all evidence on the grounds that defendant was illegally arrested and denied defendant’s motion to dismiss the complaint due to denial of speedy trial. The State appeals the District Court’s order granting defendant’s motion to suppress. Defendant cross-appeals the District Court order denying defendant’s motion to dismiss.

The first issue raised on appeal is whether there is sufficient evidence of the elements of § 46-6-105, MCA, to support the District Court’s conclusion that a violation of such statute occurred which resulted in the illegal arrest of the defendant. The statute states in relevant part:

“An arrest may be made on any day and at any time of the day or night, except that a person cannot be arrested in his home or private dwelling place at night for a misdemeanor committed at some other time and place unless upon the direction of a magistrate endorsed upon a warrant of arrest.”

Section 46-6-105, MCA.

This statute is a codification of the Montana and United States Constitutional protection of privacy in that, “absent exigent circumstances, a warrantless arrest for a minor (misdemeanor or nonviolent) crime cannot be made in the defendant’s home without a warrant.” State v. Beach, 217 Mont. 132, 147, 705 P.2d 94, 103 (1985); (citing Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984); Payton v. NY, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).) See U.S. Const. Amend. IV; 1972 Mont.Const.Art.II, Sec.10.

In order for § 46-6-105, MCA to apply to the facts of this case it must be shown that the defendant was arrested in his home or private dwelling at night for a misdemeanor committed at some other time and place. It is undisputed that the encounter between the defendant and the officer occurred at night and would not have occurred but for an alleged misdemeanor violation. The remaining elements of arrest, home or dwelling place, and the commission of the misdemeanor at another time and place are in dispute.

The first question to be answered is whether the encounter that occurred between the defendant and the officer rose to the level of an arrest. Section 46-6-101(1), MCA, defines an arrest as the “taking [of] a person into custody in a manner authorized by law.” Section 46-6-104(1), MCA, requires that an arrest be “made by an actual restraint of the person to be arrested.” (Emphasis added.) In the previous case of State v. Thornton, 218 Mont. 317, 708 P.2d 273 (1985), this Court adopted three elements necessary to formulate an arrest.

“An arrest involves three elements: (1) authority to arrest; (2) assertion of that authority with intention to affect an arrest; and (3) restraint of the person arrested.

Thornton, 708 P.2d at 277.

In this case, the officer clearly had the authority to make an arrest. It appears that the officer went to defendant’s home in order to make an arrest for the left-hand turn.

The actual restraint by a person is based upon an objective analysis of the surrounding circumstances.

“The standard for an arrest when there is not a physical restraint of the defendant is whether a reasonable person, innocent of any crime, would have felt free to walk away under the circumstances.” (Emphasis added.)

Thornton, 708 P.2d at 277, 278.

It is reasonable under the circumstances of this case that the defendant would not have felt free to leave the officer’s presence regardless of whether the physical contact between the defendant and the officer rose to the level of physical contact. The officer testified that he made demands on the defendant and expected the defendant to obey these demands. These expectations by the officer give rise to the presumption that the officer acted in such a way as to make a reasonable person believe that he must obey. Defendant testified that he believed he must obey. The District Court found that the restraint rose to the level of an arrest.

The second question is whether the arrest occurred at the home or dwelling of the defendant. A person’s privacy is protected from search and seizure intrusions without a warrant if it is reasonable to expect privacy under the surrounding circumstances. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). A person has such a reasonable expectation of privacy while in his home. The U.S. Supreme Court has concluded that these privacy protections begin at the “firm line” drawn at the entrance to the home. Payton v. N.Y., 445 U.S. at 590, 100 S.Ct. at 1382, 63 L.Ed.2d at 653. At the very least, under the Federal Constitution, if a person has substantially crossed this firm line, they have been deemed to have entered the home and it is reasonable to expect privacy.

In this case, the District Court found ample support in the record to reach the conclusion that the defendant was “straddling” the threshold to his home when he was confronted by the officer. Thus, defendant’s body had broken the firm line defined at the home’s entrance. There is substantial credible evidence to support the District Court’s decision that the defendant had entered his home or dwelling place.

The third and last element to be discussed regarding the application of § 46-6-105, MCA, to this case is whether the misdemeanor offense occurred “at some other time and place.” Section 46-6-105, MCA. In this case, there is no question the misdemeanor offense of an allegedly illegal left-hand turn occurred other that at the defendant’s home.

The District Court conclusion that the officer violated § 46- 6-105, MCA, by arresting the defendant in his home at night without a warrant for a misdemeanor that was committed at some other time and place is supported by substantial credible evidence and applied correctly as a matter of law. Such violation resulted in an illegal arrest from which any resulting evidence must be suppressed as being “tainted.” “Evidence ... in order to be admissible, must be the product of a search, incident to a lawful arrest, since the officer had no search warrant.” State v. Armstrong, 149 Mont. 470, 478, 428 P.2d 611, 615 (1967).

Because this arrest was illegal, all evidence against defendant seized as a result of such arrest is inadmissible.

The second issue to be addressed is whether this Court has jurisdiction over defendant’s cross-appeal to dismiss the complaint for lack of speedy trial. “An appeal may be taken by the defendant only from a final judgment of conviction and orders after judgment . . .” (Emphasis added.) Section 46-20-104, MCA, see Rule 1(d), M.R.App.P.

Section 46-1-201, MCA, defines judgment as “an adjudication by the court that the defendant is guilty or not guilty ...” (Emphasis added.) In this case, there has been no determination by the District Court as to defendant’s guilt or innocence of the offense charged. The appeal is premature.

The order of the District Court is affirmed and the cross-appeal is dismissed without prejudice.

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


text:
    BURK RANCHES, INC., A Montana corp., Plaintiff and Respondent, v. STATE OF MONTANA and State of Montana for State Fish and Game Commission, Defendants and Third-Party Plaintiffs and Appellants, v. JOHN W. RIEBER, JR., Guy Holt, Mack Poole and Larry Bradley, Third-Party Defendants and Respondents. JOHN W. RIEBER, Michele Rieber and Rieber Ranch, A Montana corp., Plaintiffs and Respondents, v. STATE OF MONTANA; and Department of Fish, Wildlife and Parks, Defendants, Third-Party Plaintiffs and Appellants, v. GUY HOLT, Mack Poole, and Larry Bradley, Third-Party Defendants and Respondents.
    No. 89-145.
    Submitted Oct. 17, 1989.
    Decided March 9, 1990.
    Rehearing Denied May 16, 1990.
    790 P.2d 443.

      R. Scott Currey, Agency Legal Services, Helena, for defendants and third-party plaintiffs and appellants.
    Donald Robinson, Poore, Roth & Robinson, Butte, Steve Reida, Landoe, Brown, Planalp & Kommers, Bozeman, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The State of Montana appeals from a negligence action in the District Court of the Fifth Judicial District, Beaverhead County, arising out of the collapse of the Brownes Lake Dam. The District Court held all parties liable as a matter of law, and the jury apportioned 100% of the liability to the State and awarded actual and future damages to downstream ranchers.

We reverse and remand.

ISSUES

The State of Montana raises the following issues on appeal:

1. Whether the District Court erred in not dismissing plaintiff Rieber’s claim for future damages resulting from his loss of irrigation capacity.

2. Whether in apportioning no negligence to the plaintiff and third-party defendants the jury disregarded the District Court’s instructions that all parties were liable.

3. Whether' the jury’s award of future damages to the plaintiff for lost hay crops, decreased capital value, and increased pasture expenses was excessive as triple compensation for the same injury.

FACTS

Sometime prior to 1894, Joseph Browne constructed the Brownes Lake Dam on his patented mining claim near Glenn, Montana. Designed to store irrigation water from Rock Creek, the dam raised the natural level of Brownes Lake by eight feet. In 1923, the Beaverhead County District Court apportioned the water rights to Rock Creek and enjoined all parties and successors owning ditch, water, or reservoir rights, or any interest therein, from interfering with the irrigation system. Wood Livestock Co. v. Jensen (5th D. Mont. April 25, 1923).

In 1963 the State of Montana purchased the lake and surrounding land as a recreational site under the control of the State Fish and Game Commission (presently known as the Department of Fish, Wildlife and Parks). The State has filed an as yet unadjudicated claim to a nonconsumptive, recreational, water right. Other water rights holders include John W. Rieber, Guy Holt, Mack Poole, and Larry Bradley [hereinafter water users], the present successors in interest to the parties subject to the 1923 decree. During the State’s ownership of the dam, the water users maintained exclusive control of the headgate on Brownes Lake Dam regulating water flow to irrigate their ranches.

Both the State and the water users were aware that the dam was unstable. The State first noted that the dam was old and seeping water in May of 1976. In 1979, the United States Forest Service and the Montana Department of Natural Resources and Conservation inspected the dam and informed the State that it was hazardous. The Forest Service felt that its deteriorating condition could lead to a collapse which would damage public and private land and possibly cause loss of life. In the winter of 1979-80 the State met with some of the water users informing them of the condition of the dam. The State told the water users that they could either take responsibility for maintaining the dam or the State would breach it the following spring. No action was taken by either party. In April of 1981, the Army Corps of Engineers again informed the State that inspection showed the dam to be in poor condition. Three years later, the dam collapsed damaging the property of downstream ranchers and eliminating the storage system.

Burk Ranches, Inc., which did not use the irrigation system, filed suit against the State for damage caused by the dam’s outwash. Water user Rieber filed against the State for outwash damage and loss of irrigation capacity. In both cases the State joined the non-party water users as third-party defendants. The State settled with Burk Ranches for $134,000, but retained its action for contribution against the water users.

Prior to trial, the State admitted liability and the District Court entered summary judgment holding the State and water users jointly and severally liable because they both had a duty to maintain the dam. The court joined the two actions for trial in which the jury was to determine Rieber’s damages and to apportion damages between the State and the water users. The jury returned a verdict of $219,478 for Rieber and found the State 100% liable. The State now appeals both decisions.

RIEBER’S FUTURE DAMAGES

The parties stipulated that Rieber’s past special damages totaled $8,998 and the jury found $55,000 in general damages and $155,480 in future special damages. The State contests only the latter award which included damages for decreased capital value, thirty years of loss of hay crops, ten years of increased irrigation labor costs, and thirty years of increased pasturage expenses, all resulting from Rieber’s lost irrigation capacity.

The State argues that, although there is no on-point Montana law, the majority of jurisdictions hold that a landowner has no duty to maintain an-artificial impoundment for the benefit of other water users absent a statute or covenant to the contrary. See A. Tarlock, Law of Water Rights and Resources, §§ 3.08(1) - (3) (1989). The State also argues that it was not a successor to water rights created by the 1923 apportionment and, therefore, was not enjoined by the 1923 decree from destroying the dam, or allowing its destruction. Since the State had no duty to maintain the dam for irrigation purposes, it asserts that it is not liable for damages arising from Rieber’s lost irrigation capacity.

Who is liable for the maintenance of artificial impoundments is an important question that will undoubtedly arise again as Montana’s reservoirs continue to age. That, however, is not the present question. The State’s argument attempts to correlate specific types of duties with liability for specific types of damages. The State asserts that it is not liable for loss of irrigation since it had no duty to maintain the dam for irrigation purposes. While this duties-and-damages correlation had meager support at one time, it has been uniformly rejected in modern tort law, W. Keeton, Prosser and Keeton on Torts, § 43 at 289-90 (5th ed. 1984); Restatement (Second) of Torts § 281, comment j (1965).

Montana law provides that tortfeasors are liable for all damages caused in fact and proximately caused by their negligence, § 27-1-317, MCA, including reasonably certain future damages, § 27-1-203, MCA. The State admitted liability for the collapse of the dam apparently relying on a landowner’s duty to warn about, and make safe, hazardous conditions. See Restatement (Second) of Torts §§ 364, 370 (1965). As the State itself argues, a finding of liability includes causation-in-fact and proximate causation. The State, therefore, is liable for Rieber’s reasonably certain future damages as determined by the jury’s apportionment of negligence, see § 27-1-703, MCA, regardless of what type of duty it owed. The future damages awarded by the jury, however, were not reasonably certain and did not comply with the appropriate measure of damages.

Although no single measure of damages can serve in every case to adequately compensate an injured party, the general rule in Montana is that the measure of damages for permanent injuries to real property is the difference between the value of the property before and after the injury. Watson v. Colusa-Parrot Mining & Smelting Co. (1905), 31 Mont. 513, 518, 79 P. 14, 15; see also Kebschull v. Nott (1986), 220 Mont. 64, 67, 714 P.2d 993, 995. This measure of damages avoids problems of double and speculative damages as is amply illustrated by Rieber’s award of damages for both lost irrigation and decreased capital value.

Earl Love gave most of the damages evidence. As the former district conservationist for the Dillon Soil Conservation Service, Love was familiar with the Rieber ranching operation before the dam collapsed. After the collapse he was hired to monitor and analyze the impact of the lost irrigation capacity on the Rieber ranch. He gave the jury his opinion of the ranch’s decreased capital value based on lost hay production, lost aftermath grazing, and increased pasturage fees.

Love’s opinion demonstrates that the award constitutes double damages for the same injury. When the landholder recovers damages based on the decreased value of ranch and farm property, damages for lost crops constitute double damages and are not recoverable. Wheatland Irrigation Dist. v. McGuire (Wyo. 1977), 562 P.2d 287, 298; Manning v. Woodlawn Cemetery Corp. (1921), 239 Mass. 5, 131 N.E. 287, 288; Kugel v. Village of Brookfield (1944), 322 Ill.App. 349, 54 N.E.2d 92, 96. Love’s valuation of the property after injury necessarily took into account the inability of the land to produce at pre-injury levels. Loss of use is an appropriate factor to be considered in determining decreased value; it is not a separately compensable item of damages.

The evidence also demonstrates that the damages failed to satisfy the statutory requirement of reasonable certainty. See § 27-1-203, MCA. The damages for thirty years of lost hay crops and for thirty years increased pasturage expenses were excessively speculative. Love testified that he chose the thirty-year period on the assumption that the thirty-five-year-old Rieber would retire at age sixty-five. He correctly noted that the losses would actually go on forever.

Permanent injuries to real property generate damages which extend indefinitely into the future defying formulation of any reasonably certain basis for evaluation. Claiming future damages for only a specified number of years provides only a cosmetic solution to the problem. The record does not indicate that Rieber’s hay crops and pasturage will return to pre-injury levels on the thirty-first year after the collapse of the Brownes Lake Dam. They may be restored at an earlier date, or they may never be restored. Even if Rieber retires at age sixty-five, the injury will probably continue in his successor.

Love’s testimony on the ranch’s decreased capital value also produced excessively speculative damages. We have held in a number of cases that the jury may base future damages on expert testimony which necessarily includes some degree of conjecture and speculation. Stark v. Circle K Corp. (1988), 230 Mont. 468, 478, 751 P.2d 162, 168; Graham v. Clarks Fork Nat’l Bank (Mont. 1981), 631 P.2d 718, 720, 38 St.Rep. 1140, 1143; Frisnegger v. Gibson (1979), 183 Mont. 57, 71, 598 P.2d 574, 582. However, we have also consistently reiterated the statutory requirement that future damages must be reasonably certain. This imperative requires the parties to lay before the jury the most reliable type of evidence available for the particular type of injury. With some types of injury, some conjecture and speculation is unavoidable. Uncertainty, however, can be minimized in evidence of property damages. In the case of permanent injuries to real property, evidence based on the appraised value of the property before and after the injury, or an equally reliable method of valuation, ensures reasonable certainty.

Whether an injury is permanent or temporary is a question for the jury. Rempfer v. Deerfield Packing Corp. (1950), 4 N.J. 135, 72 A.2d 204, 209; Benton Gravel Co. v. Wright (1943), 206 Ark. 930, 175 S.W.2d 208, 210. In distinguishing between permanent and temporary injuries,

“[a] permanent injury to real property ... is one of such a character and existing under such circumstances that it will be presumed to continue indefinitely. A temporary or continuing injury is one that may be abated or discontinued at any time, either by the act of the wrongdoer, or by the injured party.”

Worden v. Bielenberg (1912), 119 Minn. 330, 138 N.W. 314, 315; see also Gross v. Connecticut Mut. Life Ins. Co. (S.D. 1985), 361 N.W.2d 259, 272.

The ability to repair the injury must, however, be more than a theoretical possibility; it must be an actual possibility within reasonable capabilities of the parties. Even though repair is theoretically possible, if the cost of repair greatly exceeds the decreased value of the property, the injury is presumptively permanent and the decreased value rule applies. United States Steel Corp. v. Benefield (Fla. App. 1977), 352 So.2d 892, 894, cert. den. (Fla.) 364 So.2d 881; see also Kebschull, 220 Mont. at 66, 714 P.2d at 994. To hold otherwise would allow repair and replacement damages which might far exceed any benefit regained. As in this case, the cost of replacing and maintaining Brownes Lake Dam may well exceed the reasonable cost of lost crops and pasturage for the foreseeable future. It may even exceed the value of the ranch itself. The disparity would encourage the injured party to forego actual repairs and reap a windfall profit contrary to the purpose of compensatory damages.

“The injured party is to be made as nearly whole as possible — but not to realize a profit. Compensatory damages are designed to compensate the injured party for actual loss or injury — no more, no less. Spackman v. Ralph M. Parsons Co. (1966), 147 Mont. 500, 506, 414 p.2d 918, 921.”

In summary, the measure of damages for permanent injury to real property is the difference between the appraised value of the property before and after the injury. An injury is permanent if it will continue indefinitely. An injury is presumptively permanent when the cost of repair greatly exceeds the property’s decreased value. If the injury is temporary, the measure of damages is the cost of repair plus damages for loss of use up to the time when the injury reasonably could have been repaired. Bos v. Dolajak (1975), 167 Mont. 1, 10, 534 P.2d 1258, 1262.

APPORTIONMENT OF LIABILITY

The State argues that by apportioning negligence at 100% for the State and 0% for Rieber and the other water users, the jury ignored the District Court’s instruction that all parties were liable. We agree that the jury ignored the instruction, but not because it found the State responsible for all damages. The jury understandably disregarded the liability instruction because it received conflicting instructions requiring it to also find legal causation.

Prior to trial, the District Court entered summary judgment holding the State and water users jointly and severally liable.

“The STATE has admitted liability. It now claims that the water users are jointly and severally liable. With this position, the Court agrees; and finds that there are no genuine issues of fact which would or could result in a contrary finding. The water users are jointly liable. Damages, if any, should be properly apportioned between the joint tortfeasors, commensurate with the degree of their respective negligence.”

Order and Findings of the District Court, March 18, 1988.

The District Court appropriately instructed the jury on its finding of liability and the issues remaining for determination. However, the court also inconsistently instructed the jury on legal causation.

“You are instructed that the doctrine of ‘comparative negligence’ is applicable to this case. Further, you are advised that the State has admitted liability and that the Court has previously adjudged that all other parties, including Rieber’s [sic], are jointly and severally liable to the extent of their respective and apportioned negligence. You must determine the degree of each party’s negligence and assess him the percentage of negligence contributing as a legal cause to the damages and enter the percentage on the appropriate line next to that party’s name on the verdict form.”

Jury Instruction No. 12. (Emphasis added.)

“Before you can apportion liability as to any party, you must find that parties’ [sic] negligence was a legal cause to some percentage of the damages.”

Jury Instruction No. 20.

“A legal cause of an injury is a cause which is a substantial factor in bringing about the injury.”

Jury Instruction No. 11.

The verdict form contained the same inappropriate instruction.

“We further find that the damages herein assessed are apportioned in accordance with what we find to be the comparative negligence proximately causing said damages as follows . . .”

Jury Verdict Form. (Emphasis added.)

A finding of liability includes a finding of every element necessary to establish liability except those specifically reserved by the judgment. In negligence, the essential elements of liability include duty, breach, cause-in-fact, proximate cause, and damages. Thornock v. State (1987), 229 Mont. 67, 72, 745 P.2d 324, 327. Here, the summary judgment reserved only the amount and apportionment of damages for the jury, but the court instructed the jury that it had to find causation. We recognize that cause cannot be split from effect; the cause of the damage and the amount of the damage caused, are, in reality, different facets of the same concept. However, by giving instructions on causation, the court directed the jury to redetermine an issue already decided on summary judgment. The court should have made the jury’s duty less ambiguous by instructing on the finding of liability and the meaning of that finding; both parties had a duty to maintain the dam, both breached their duty, and both were the actual and legal causes of any resulting damages.

The jury’s apportionment of 100% of the damages to the State and 0% to the other parties is not an error per se. The apportionment of liability is a duty reserved solely for the jury. Section 27-1-703(4), MCA. It is well within the authority of the trier of fact to find that a defendant had a duty, breached it, and caused injury to the plaintiff, and yet award no compensation when the plaintiff failed to adequately prove damages. See Lenz Constr. Co. v. Cameron (1984), 207 Mont. 506, 511-12, 674 P.2d 1101, 1104. That possibility, however, is difficult to envision when the court found on summary judgment that both had breached their concomitant duty to maintain the dam.

CONCLUSION

The damages awarded in Rieber v. State of Montana were based on an inappropriate measure of damages, speculative, and included double compensation for the same injury. In apportioning the percentage of negligence to the parties the jury relied on improper instructions and inappropriately redecided the issue of causation. We therefore reverse Rieber v. State of Montana, Cause No. 10612, on the amount and apportionment of damages, including apportionment on the State’s contribution claim against the third-party defendants. The case is remanded to the District Court for further proceedings consistent with this opinion.

We also reverse and remand the District Court’s summary judgment on the State’s contribution claim in Burk Ranches v. State of Montana, Cause No. 10348. In that case, the State settled with the plaintiff for $134,000 but retained an action for contribution against the third-party defendant water users. The percentage of the water users’ negligence in the collapse of the dam, and therefore the percentage of their contribution in Burk Ranches, became res judicata on the jury’s apportionment of damages in Rieber v. State. Following the Rieber jury’s 0% apportionment to the water users, the District Court entered summary judgment in favor of the water users on the State’s contribution claim in Burk Ranches. Because the Rieber jury was improperly instructed on the apportionment of damages, we hold that the summary judgment in Burk Ranches v. State was also an error of law. The State’s $134,000 settlement with plaintiff Burk Ranches stands.

JUSTICES HARRISON, SHEEHY, BARZ, McDONOUGH, HUNT and WEBER concur.

        . This is also the universal rule in other jurisdictions. See 22 Am.Jur.2d, Damages § 405 at n.19 (1988).

      . “Permanent injury” has at least two meanings. In the present context it refers'to whether the injury can be repaired. In the cpn text pf the statute of limitations, “permanent injury” refers to whether the injury has stabilized enough that the extent of the damage has become reasonably certain. Haugen Trust v. Warner (1983), 204 Mont. 508, 513, 665 P.2d 1132, 1135. Use of the term in the present discussion does not alter its definition under the statute of limitations.

      . The presumption of permanence is only a presumption. It can be overcome by statutory and common laws, such as environmental laws, which compel repair or replacement.


author: JUSTICE SHEEHY

text:
    DAVID A. MALEK, Claimant and Respondent, v. HENRY’S SAFETY SUPPLY COMPANY, Employer, and State Compensation Insurance Fund, Insurer and Appellant.
    No. 89-512.
    Submitted on Briefs Feb. 9, 1990.
    Decided March 13, 1990.
    790 P.2d 965.

      Richard E. Bach, Charles Adams, Helena, for insurer and appellant.
    Geoffrey'R. Keller, Matovich, Addy & Keller, Billings, for claimant and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

The State Compensation Insurance Fund appeals from a judgment of the Workers’ Compensation Court ordering the Fund to return monies to the claimant. We affirm.

In this case we hold principally that the Workers’ Compensation Court had subject matter jurisdiction to compel the State Compensation Insurance Fund, where no prior determination had been made as to subrogation rights by the Division of Workers’ Compensation, to return subrogation funds to the claimant.

Respondent David Malek suffered an injury compensable under the Workers’ Compensation Act when he was injured in an automobile accident on February 8, 1985. Malek fully settled the resulting third-party action for $25,000, the third-party driver’s insurance policy limits.

On March 27, 1985, a claims examiner for the State Compensation Insurance Fund (Fund) informed Malek that the Fund was entitled to a 50 percent subrogation interest in his third-party settlement under the provisions of § 39-71-414, MCA. Malek thereafter paid the sum of $12,500 to the Fund.

Malek retained counsel in 1988 to pursue a claim for permanent partial disability benefits. Shortly thereafter Malek filed a petition with the Workers’ Compensation Court seeking, amongst other things, to have the $12,500 subrogation payment refunded, as Malek alleged he had not been fully informed of the subrogation issues, and that until action by the Division no subrogation entitlement in favor of the Fund existed.

The Fund filed a motion to dismiss the portion of the petition relating to the determination and allocation of subrogation under the provisions of Subsection (5) of § 39-71-414, MCA. That section reads:

“(5) If the amount of compensation and other benefits payable under the Workers’ Compensation Act have not been fully determined at the time the employee, the employee’s heirs or personal representatives, or the insurer have settled in any manner the action as provided for in this section, the department shall determine what proportion of the settlement shall be allocated under subrogation. The department’s determination may be appealed to the workers’ compensation judge.”

The Workers’ Compensation Court, pursuant to § 39-71-414(5), MCA, granted the Fund’s motion to dismiss the subrogation issue. It then ordered the Fund to return immediately the $12,500 payment to the claimant.

The Fund now appeals the lower court’s order, maintaining that the Workers’ Compensation Court was without jurisdiction to order a return of the subrogation funds.

This Court recently held, in First Interstate Bank v. Tom Sherry Tire, Inc. (1988), [235] Mont. [48], 764 P.2d 1287, that the Workers’ Compensation Court is without jurisdiction over the issue of subrogation where a third-party settlement precedes a petition for full and final settlement of workers’ compensation benefits. In such a situation, under the statute, the Workers’ Compensation Division, and not the Workers’ Compensation Court, has jurisdiction.

The issue now before this Court requires a closer look at § 39-71-414(5), MCA, and the jurisdictional powers of the Workers’ Compensation Court.

The Workers’ Compensation Court is granted general jurisdiction by § 39-71-2905, MCA. This statute reads in part:

“Petition to workers’ compensation judge. A claimant or an insurer who has a dispute concerning any benefits under Chapter 71 of this title may petition the workers’ compensation judge for a determination of the dispute after satisfying dispute resolution requirements otherwise provided in this chapter.

“. . . The workers’ compensation judge has exclusive jurisdiction to make determinations concerning disputes under Chapter 71

In State ex rel. Uninsured Employers’ Fund v. Hunt (1981), 191 Mont. 514, 625 P.2d 539, this Court, in review of § 39-71-2905, MCA, stated that:

“[The Workers’ Compensation Court] has been given broad powers concerning benefits due and payable to claimants under the Act. It has the power to determine which of several parties is liable to pay Workers’ Compensation benefits, or if subrogation is allowable, what apportionment of liability may be made between insurers, and other matters that go beyond the minimum determination of the benefits payable to an employee.” (Emphasis added.)

Amendments to § 39-71-2905, MCA, since Hunt, have mandated certain dispute resolution requirements to be comported with prior to petitioning the Workers’ Compensation judge. Subrogation rights under § 39-71-414(5), MCA, are not included in those dispute resolution requirements.

Hence we have a situation where the Fund claims that, under § 39-71-414(5), MCA, and this Court’s interpretation of that statute in First Interstate, the Workers’ Compensation Court has no jurisdiction at this time as to subrogation. On the other hand, the claimant maintains that the Workers’ Compensation Court’s jurisdiction extends to the dispute here by virtue of § 39-71-2905, MCA, and our interpretation of that statute in Hunt.

We concur with the claimant on this issue. The Workers’ Compensation Court noted correctly that the determination of the amount of subrogation is a matter to be addressed initially by the Division, under § 39-71-414(5), MCA. The Court then pointed out that the Fund had no right to be in possession of subrogation funds until a Division determination as to subrogation rights occurred. The claimant is disputing the Fund’s right to claim any subrogation funds prior to the Division determination, and it was within the court’s jurisdiction, as authorized by § 39-71-2905, MCA, to determine this dispute over benefits.

There can be no question that the State Fund is improperly in possession of $12,500 of claimant’s third-party settlement, as the rights to subrogation had not been first determined by the Division. The Workers’ Compensation Court had jurisdiction in this dispute over benefits, and ruled properly. We hereby affirm the Workers’ Compensation Court order to the State Fund to return the $12,500 to claimant, along with accrued interest.

JUSTICES HUNT, BARZ, WEBER and McDONOUGH concur.