author: JUSTICE BARZ JUSTICE HUNT,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TOMMY G. JOHNSTONE, a/k/a Tom Johnstone, Defendant and Appellant.
    No. 89-242.
    Submitted on Briefs June 14, 1990.
    Decided Sept. 13, 1990.
    798 P.2d 978.

      JUSTICE HUNT dissented and issued an opinion in which JUSTICE SHEEHY, concurred.
    Todd R. Hillier, R. Mark Josephson, Big Timber, for defendant and appellant.
    Marc Racicot, Atty. Gen., Jennifer M. Anders, Asst. Atty. Gen., Helena, James Tulley, Deputy County Atty., Thomas Biglen, County Atty., Big Timber, for plaintiff and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

Tommy Johnstone appeals his conviction of felony attempted theft and criminal trespass to vehicles by a jury empaneled in the District Court of the Sixth Judicial District, Sweet Grass County. We affirm.

On September 1, 1988, Carl Leader was fishing at a State access on the Boulder River off Highway 298 near McLeod, south of Big Timber, Montana. Mr. Leader arrived at the access at approximately 3:30 p.m. and fished for roughly one and one-half hours. Leader locked a pistol, fishing gear and a jacket inside his truck. There was no one else present at the access when Mr. Leader arrived and he saw only one other vehicle during this time. Mr. Leader did not have a clear view of the parking area at all times. Shortly before leaving, Mr. Leader heard another vehicle in the parking area. He proceeded up a bank and saw an older model Ford pickup bearing 23 license plates. Mr. Leader on that day described the vehicle as green but at trial stated it was bluish-green. The occupant of the vehicle smiled and waved at Mr. Leader before driving away. Leader at trial identified defendant as the occupant of the truck. Upon entering his vehicle, Leader discovered the driver’s side ventilator window was broken and the main window was rolled down, however nothing was missing from the truck. Leader drove the fourteen and one-half miles into Big Timber to report the incident, arriving around 6:00 p.m.

George Ames, Sweet Grass County Undersheriff, observed a turquoise Ford pickup bearing 23-county license plates proceeding south on Highway 298 toward the McLeod fishing access the same afternoon. The driver of the pickup looked familiar to Undersheriff Ames. After stopping at the sheriff’s department in Big Timber, Ames went off duty. At his home, Ames later received a call from the sheriff’s department dispatcher describing the circumstances surrounding the damage to Carl Leader’s vehicle. At this time, Ames recalled the identity of the pickup driver and had reason to believe the driver may have been responsible for the damage to Leader’s vehicle. Ames arranged for lookouts on various routes leading from the McLeod area while he and a deputy drove up the Boulder River drainage several miles past the fishing access.

Ames’s son Dan, a Stillwater County Sheriff’s Deputy, then advised his father he was following a turquoise-colored pickup with 23-county license plates occupied by one male. Ames requested that his son make a felony stop. The driver of the turquoise pickup, the defendant, stopped approximately two miles east of Columbus, roughly 65 miles from the fishing access. Deputy Ames arrested the defendant, had him transported to Columbus and arranged for his pickup to be towed into town.

Carl Leader identified defendant’s vehicle as the one he had seen at the fishing access prior to discovering his window broken. Leader did not at that time identify defendant as the occupant of that vehicle. During an inventory of defendant’s personal possessions as part of the booking process, Stillwater County Deputy Albert Hust removed a quantity of glass particles from defendant’s shirt and pant pockets. Hust put the glass recovered into separate evidence bags. Defendant gave Undersheriff Ames permission to search his vehicle. Ames found leather gloves imbedded with glass and a pry bar with pieces of glass on it.

Defendant was charged by information with attempted theft, a felony, in violation of § 45-6-301, MCA, and criminal trespass to vehicles, a misdemeanor, in violation of § 45-6-202, MCA. Counsel was appointed for defendant and he pled not guilty to both charges. The State gave notice to defendant of its intention to offer evidence of other crimes as follows:

“1. Evidence of a theft by the defendant of a tool box and tools from a motor vehicle belonging to Marvin Maxwell while the vehicle was parked at a Fishing Access site in Sweet Grass County, Montana, on August 23, 1986, including proof of defendant’s conviction of felony theft in such matter. Such evidence will be offered to establish motive, intent, plan and/or absence of mistake or accident with respect to defendant’s conduct at issue in these proceedings.
“2. Evidence of a theft by the defendant of a purse and cash from a motor vehicle belonging to Cora Nelson while it was parked at Carter’s Bridge, Park County, Montana, on August 7,1986, including proof of defendant’s conviction of felony theft in such matter. Such evidence will be offered to establish motive, intent, plan and/or absence of mistake or accident with respect to defendant’s conduct at issue in these proceedings.
“3. Evidence of a theft by defendant of binoculars, camera equipment and cash from a motor vehicle belonging to John Hewitt and JoAnne Rathbum while the vehicle was parked at Mallard’s Rest Fishing Access on August 9, 1986, including proof of defendant’s conviction of felony theft in such matter. Such evidence will be offered to establish motive, intent, plan and/or absence of mistake or accident with respect to defendant’s conduct at issue in these proceedings.
“4. Evidence of a theft of a rifle from a pickup tmck at Grey Cliff Fishing Access, Sweet Grass County, Montana, in August 1988 and possession thereof by defendant at his place of residence in Roundup, Montana. Such evidence will be offered by the State to establish a common scheme of thefts by the defendant as well as to establish motive and intent.”

Respondent then filed an amended information adding a third count (Count III) charging defendant with felony theft in violation of § 45-6-301, MCA, in connection with the rifle theft at Grey Cliff Fishing Access.

Counsel for defendant moved to dismiss the amended information arguing the State “attempted] to combine two or more misdemeanors under the concept of common scheme in order to establish a felony status against... defendant” and that the facts contained within the information were insufficient to establish criminal conduct. The District Court denied this motion as well as a second motion to dismiss based on an absence of probable cause. Counsel for defendant filed briefs accompanied by exhibits in support of both motions. The court further denied the State’s motion to dismiss Count III of the information.

At trial, defendant testified that on September 1, 1988, he had driven from Roundup to Bozeman seeking work as a firefighter. At Reedpoint, the throttle bracket on defendant’s pickup broke and he lost power. Approximately two hours later, around 5:00 p.m., defendant turned back toward Billings. He testified to using his gears to pull his pickup over the hill where Deputy Sheriff Dan Ames eventually arrested him. Defendant denied breaking into Leader’s vehicle. The State called Dr. Larry B. Howard of the State crime lab who performed tests comparing the glass found in defendant’s pockets and imbedded in his gloves with glass taken from the broken window on Leader’s vehicle. Howard testified all the glass had the same refractive index and that the pant pocket glass and the glass from the window had similar densities while that from the shirt pockets had a higher density. Howard testified the probability was high that the glass samples originated from the same source. Howard further opined that the highly fragmented glass resulted from a blow from a heavy instrument as contrasted with “diced” glass which would result from an accident.

Defendant explained the glass found on his clothing by describing his practice of rummaging through dumpsters sniffing out valuable refuse. These activities took place in addition to defendant’s customary employment as a logger. Defendant stated that although he had not worn the clothes in which he was arrested on a dumpster-foraging expedition since last laundering them, he expected the glass was heavy enough to remain in the pockets during washing and require manual removal.

The State offered no evidence of Count III of the information and the District Court dismissed this charge upon defendant’s motion. The jury returned a guilty verdict on the remaining counts. The District Court sentenced defendant to six years in the Montana State Prison on the attempted theft charge and six months on the criminal trespass to vehicles charge. These sentences were to be served concurrently, but consecutively with defendant’s prior sentences for which he was on parole at the time of this offense. Defendant was further designated a persistent felony nondangerous offender.

Defendant raises the following issues on appeal:

1. Did the State prove beyond a reasonable doubt, facts from which defendant’s mental state could be inferred?
2. Did the District Court erroneously permit testimony regarding other items contained within Leader’s vehicle?
3. Did the District Court properly admit evidence of defendant’s other crimes?
4. Did the jury have sufficient evidence upon which to convict defendant of criminal trespass to vehicles?
5. Was defendant convicted of both attempted theft and criminal trespass to vehicles in violation of § 46-11-502, MCA?
6. Did defendant receive effective assistance of counsel?

I.

Defendant was charged with attempted theft because he <£enter[ed] [Leader’s] vehicle attempting to remove a pistol from the front seat of the vehicle...” Defendant argues that because the pistol was concealed by Leader’s jacket, he could not have formulated the requisite mental state for attempted theft. Defendant appears to argue the State must prove beyond a reasonable doubt that he specifically intended to steal Leader’s pistol. This would be impossible to prove because, as Leader testified, the pistol was covered and defendant could not see it.

Section 45-4-103(1), MCA, provides that:

“A person commits the offense of attempt when, with the purpose to commit a specific offense, he does any act toward the commission of such offense.” (Emphasis added.)

The requisite mental state for theft is set forth at § 45-6-301(1), MCA:

“A person commits the offense of theft when he purposely or knowingly obtains or exerts unauthorized control over property of the owner and:
“(a) has the purpose of depriving the owner of the property;
“(b) purposely or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property; or
“(c) uses, conceals, or abandons the property knowing such use, concealment, or abandonment probably will deprive the owner of the property.” (Emphasis added.)

Knowingly and purposely are both defined by statute:

“[A] person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware of his conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when he is aware that it is highly probable that such result will be caused by his conduct. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence.”

Section 45-2-101(33), MCA.

“[A] person acts purposely with respect to a result or to conduct described by a statute defining an offense if it is his conscious object to engage in that conduct or to cause that result. When a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense.”

Section 45-2-101(58), MCA.

Section 45-2-103(3), MCA, permits “[t]he existence of a mental state [to] ... be inferred from the acts of the accused and the facts and circumstances connected with the offense.” What the State must prove beyond a reasonable doubt are facts and circumstances in addition to acts of the defendant from which the jury may infer defendant’s mental state. In criminal prosecutions, a verbal or written statement by the defendant regarding his or her mental state is very rare. Furthermore, rarely does a thief know precisely what item or items he will take when he has not had the opportunity to see them all. An examination of the evidence in this case established a sufficient basis for the jury to conclude that the defendant would have exerted unauthorized control over any or all the property in the pickup whether he could see it or not had he not been interrupted.

The jury received instructions on the statutory definition of attempt, theft, purposely and knowingly in addition to the following instructions:

“INSTRUCTION NO. 10
“The difference between theft, a felony, and theft, a misdemeanor, is that in order for theft to amount to a felony, the value of the property subject to the theft exceeds $300.00. If the value of the subject property is $300.00 or less, then a theft can only be a misdemeanor.
“INSTRUCTION NO. 12
“To convict the defendant of the offense of attempt, the State must prove the following elements:
“FIRST: That the defendant performed an act which constituted a material step toward the commission of the offense of theft; and
“SECOND: That the defendant did so with the purpose to commit the offense of theft.
“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.
“INSTRUCTION NO. 13
“The attempted theft charge against the defendant is a felony charge, and all twelve of your number must agree in order to return either a verdict of guilty or not guilty.
“To do so, it is necessary that you consider the crime of attempted theft, a felony, first and that all twelve of you find the defendant either guilty or not guilty of that charge.
“In the event you find the defendant guilty of attempted theft, a felony, you need go no further as you will have reached a verdict on that count.
“In the event you find the defendant not guilty of attempted theft, a felony, you must then consider the lesser included offense of attempted theft, a misdemeanor. You must then find the defendant guilty or not guilty of this charge. When you have done so you have reached a verdict.
“The jury will bear in mind that the burden is always upon the prosecution to prove beyond a reasonable doubt every essential element of any lesser offense which is necessarily included in the crime charged in the information.
“INSTRUCTION NO. 14
‘You are instructed that the defendant may not be convicted of a felony unless you are satisfied from the evidence that the property alleged to be the subject of the attempted theft exceeds the sum of $300.00 in value.
“INSTRUCTION NO. 15
‘You are instructed that in the event that you find the defendant guilty of an attempted theft, but the value of the item made the subject of the attempted theft is less than $300.00, then the defendant can only be found guilty of misdemeanor attempted theft.”

Carl Leader testified that he locked several items of fishing gear and a pistol concealed by his jacket in his track before he started fishing. When he left the vehicle, all windows were rolled up and intact. Leader neither saw nor heard a vehicle other than that identified as the defendant’s. Leader observed the occupant of the vehicle whom he later identified as the defendant. Upon returning to his vehicle, Leader found the ventilator window broken and the driver’s side window rolled down. Although he testified no items were taken, there is no testimony on how he found those items when he returned to his track. He was never questioned on whether or not the pistol was still covered by the jacket.

Defendant testified that he sat on Interstate 90 for two hours with a broken throttle bracket before turning around to return to Billings. He denied being at the McLeod fishing site at all which is located on the Boulder River roughly sixteen miles south of Big Timber and Interstate 90. This was his testimony after he had already heard Leader identify him as the person at the fishing access, heard that the pistol was covered with a jacket, and heard the undersheriff’s testimony that he saw him on the Boulder River road that same afternoon, too.

Where the evidence, viewed in a light most favorable to the State, permits a rational trier of fact to find the essential elements of a crime, we will not reverse the defendant’s conviction. Given the evidence and instructions presented to the jury, it could reasonably conclude beyond a reasonable doubt defendant had the requisite mental state for conviction of felony attempted theft.

II.

Defendant also asserts the District Court improperly admitted testimony regarding other items visible in Leader’s vehicle when defendant broke the window. Defendant seems to argue that the prosecution surprised him by referring to these other articles defendant may have been attempting to steal. The information need not have referred to any particular item contained within Leader’s vehicle to properly set forth a charge of attempted theft.

“It shall not be a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the offense attempted.”

Section 45-4-103(2), MCA. The original information and the amended information gave defendant and his attorney notice about the “other property” in addition to the pistol in Leader’s vehicle.

“On the afternoon of September 1, 1988, the defendant, TOMMY JOHNSTONE, did knowingly or purposely and without authority break the driver’s side vent window of a pickup truck belonging to Carl Leader and did enter the vehicle attempting to remove a pistol from the front seat of the vehicle, all within the County of Sweet Grass, State of Montana. The value of the pistol, together with the value of other property taken in what authorities believe is a common scheme of theft of property from vehicles parked at recreation sites, exceeds $300.”

Furthermore, prior to trial while arguing his motion in limine regarding evidence of other crimes, defense counsel stated to the court: “And then we are going to be into the question of valuation about the items alleged to be the object of the attempted theft I suppose . . .” Finally, the defendant had an expert who offered evidence of the value of the pistol and the holster.

The testimony of Mr. Leader was that he left a spinning rod, a basket of fishing tackle, his jacket and the pistol which was in a holster in his vehicle when he went to go fishing. Only the pistol and holster were admitted as an exhibit in evidence. There was no objection to this testimony or the exhibit during trial. Furthermore, the policy behind the statutory requirements of the information is to afford a defendant due process of law; and not to restrict the prosecution’s strategy in presenting its case once the defendant is fully apprised of the charges against him. See, State v. Sanderson (1985), 214 Mont. 437, 453-54, 692 P.2d 479, 488.

Defendant did not object to this testimony at trial. Although we have the discretion to consider on appeal matters not raised before the District Court in the interests of justice, because we determine defendant received effective assistance of counsel, we decline to do so here.

III.

As we noted above, defendant’s mental state could be inferred from his acts, and the surrounding circumstances. A critical factor was defendant’s motivation or lack thereof. Although evidence of other crimes is inadmissible to show a criminal defendant behaved consistently with past criminal conduct “[i]t may.. .be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Rule 404(b), M.R.Evid. Evidence of defendant’s past crimes was probative of his mental state, intent and preparation.

Other crimes evidence is admissible only when the State satisfies the four factor test set forth in State v. Just (1979), 184 Mont. 262, 269, 602 P.2d 957, 961:

“1. Similarity of crimes or acts;
“2. nearness in time; and
“3. tendency to establish a common scheme, plan or system; and
“4. the probative value of the evidence is not substantially outweighed by the prejudice to the defendant.” (Emphasis in original.)

Defendant’s crimes meet the Just similarity requirement. Each involved a vehicle parked at a remote recreation access site. In each case, either the driver’s side window or wing window were broken to afford access to the vehicle. In each case, the perpetrator took small, easily transported items. None of the vehicles were stolen. Each theft was a felony. Defendant’s past crimes are substantially similar to those for which he was charged in this action and thus satisfy the first of the Just factors. We further find that the similarity of defendant’s methods satisfy the third Just factor: a common plan, scheme or system.

The District Court in its discretion may find adequate proximity in time between the crimes charged and those for which conviction is sought by considering the number of incidents and the nearness in time of the last prior crime. State v. Hansen (1980), 187 Mont. 91, 98, 608 P.2d 1083, 1087. Defendant was convicted of his previous crimes in September and October of 1986. The incident at issue here took place on September 1, 1988. Defendant’s crimes were interrupted only by his incarceration at Montana State Prison. This Court has previously held that crimes taking place three years earlier were not too remote in time under this rule. State v. Heine (1975), 169 Mont. 25, 28, 544 P.2d 1212, 1214. Defendant’s prior crimes were sufficiently close in time to satisfy the second Just test.

Lastly, the probative value of the other crimes evidence must outweigh its prejudicial nature. This Court recognizes that evidence of other crimes is unquestionably prejudicial. In Just, we set forth precautionary steps which minimize the prejudice to the defendant:

“(a) Evidence of other crimes may not be received unless there has been notice to the defendant that such evidence is to be introduced. The procedures set forth in section 46-18-503 MCA should serve as guidelines for the form and content of such notice. Additionally, the notice to the defendant shall include a statement as to the purposes for which such evidence is to be admitted.
“(b) At the time of the introduction of such evidence, the trial court shall explain to the jury the purpose of such evidence and shall admonish it to weigh the evidence only for such purposes.
“(c) In its final charge, the court should instruct the jury in unequivocal terms that such evidence was received only for the limited purposes earlier stated and that the defendant is not being tried and may not be convicted for any offense except that charged, warning them that to convict for other offenses may result in unjust double punishment.”

Just, 602 P.2d at 963-64.

In this case, the State notified defendant of its intention to introduce evidence of his prior crimes. Prior to testimony by George Ames regarding defendant’s prior crimes, the District Court gave the following instruction:

“Ladies and Gentlemen of the jury, evidence is about to be introduced for the purpose of showing the defendant committed acts other than the ones for which he is on trial. You may not consider this evidence to prove that the defendant is a person of bad character, or that he has a disposition to commit crimes. You may only consider this evidence for the limited purposes of providing a characteristic method, plan or scheme used in the commission of the offense. You may also consider this evidence to prove existence of a mental state which is an element of the crime charged. You may not consider this evidence for any other purpose that would expose the defendant to unjust double punishment.”

The District Court properly admitted evidence of defendant’s other crimes.

IV.

Defendant maintains there was insufficient evidence to sustain his conviction for criminal trespass to vehicles. Section 45-6-202(1), MCA, states:

“Aperson commits the offense of criminal trespass to vehicles when he purposely or knowingly and without authority enters any vehicle or any part thereof.”

Mr. Leader testified he left his vehicle locked with the windows intact. Mr. Leader heard a vehicle he identified as the defendant’s in the parking area and immediately climbed over the bank to investigate. He saw a man, later identified as the defendant, driving away. Upon returning to his truck, Leader found the ventilator window broken and the driver’s side window rolled down. When defendant was arrested, his pants and shirt pockets contained glass. There were slivers of glass imbedded in gloves found in defendant’s vehicle as well as pieces of glass discovered on the wrecking bar in the same vehicle. Dr. Howard of the State Crime Lab testified this glass was tempered auto glass, resulted from a blow to the glass rather than an accident and was probably the same glass found in Leader’s vehicle.

The jury had sufficient credible evidence upon which to base defendant’s conviction of criminal trespass to vehicles. Defendant’s assertions otherwise are without merit.

V.

Defendant contends he was improperly convicted of criminal trespass to vehicles and attempted theft in violation of § 46-11-502, MCA. That section provides:

“When the same transaction may establish the commission of more than one offense, a person charged with such conduct may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
“(1) one offense is included in the other;
“(2) one offense consists only of a conspiracy or other form of preparation to commit the other;
“(3) inconsistent findings of fact are required to establish the commission of the offenses;
“(4) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or
“(5) the offense is defined to prohibit a continuing course of conduct and the defendant’s course of conduct was interrupted, unless the law provides that the specific periods of such conduct constitute separate offenses.”

Defendant argues that the trespass to the vehicle was committed merely in preparation for the attempted theft. The United States Supreme Court considered this issue in Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309, concluding:

“[TJhat where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” (Citations omitted.)

Section 45-6-202(1), MCA, sets forth the elements of criminal trespass to vehicles:

“(1) A person commits the offense of criminal trespass to vehicles when he purposely or knowingly and without authority enters any vehicle or any part thereof.”

Section 45-6-301(1), MCA, states that:

“A person commits the offense of theft when he purposely or knowingly obtains or exerts -unauthorized control over property of the owner and:
“(a) has the purpose of depriving the owner of the property;
“(b) purposely or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property; or
“(c) uses, conceals, or abandons the property knowing such use, concealment, or abandonment probably will deprive the owner of the property.”

Clearly, criminal trespass to vehicles involves unauthorized entry of a vehicle while theft requires unauthorized exertion of control over another’s property. These are distinct and separate elements. Defendant’s conviction does not violate § 45-11-502, MCA.

VI.

Defendant maintains he received ineffective assistance of counsel evidenced by the following:

“1. Failure to object to:
“a. statements made by the prosecutor regarding the third count of the amended information;
“b. introduction of an empty plastic bag which once contained glass taken from defendant’s pockets;
“c. the prosecutor’s opening statement wherein he referred to defendant’s prior convictions.
“2. Failure to disqualify Judge Robb despite the fact that he presided over defendant’s three prior convictions.
“3. Failure to move for change of venue.
“4. Failure to call expert witnesses to testify regarding the glass taken from defendant’s pockets.
“5. Failure to call witnesses to testify about the condition of defendant’s vehicle.
“6. Failure to cross-examine law enforcement officials as to their reasons for not having Carl Leader identify defendant at the Stillwater County jail in Columbus.”

In State v. Coates (Mont. 1990), [241 Mont. 331,] 786 P.2d 1182, 1185, 47 St.Rep. 328, 332, we made the following observation concerning effective assistance of counsel:

“In evaluating ineffective assistance of counsel claims, this Court utilizes a two-part test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. First, counsel’s performance must be deficient. To assess deficient performance, this Court employs the “ ‘reasonably effective assistance’ test of whether a defendant’s counsel acted within the range of competence demanded of attorneys in criminal cases. (Citation omitted.)” State v. Elliot (1986), 221 Mont. 174, 178, 717 P.2d 572, 575. Second, counsel’s deficient performance must have so prejudiced the defendant as to deprive the defendant of a fair trial. State v. Leavens (1986), 222 Mont. 473, 475, 723 P.2d 236, 237. The standard for evaluating prejudice is whether a reasonable probability exists that but for counsel's deficient performance, the trial’s outcome would have been different. Leavens, 723 P.2d at 237. However, in evaluating a defense counsel’s performance, this Court will not second guess trial tactics and strategy. State v. LaValley (1983), 203 Mont. 393, 397, 661 P.2d 869, 872.”

Allegations 1, 4, 5 and 6 concern trial tactics. We have repeatedly held that we will not second-guess trial tactics on appeal. State v. LaValley (1983), 203 Mont. 393, 397, 661 P.2d 869, 872. Defendant’s assertion that counsel failed to move for a change of venue was supported by outside evidence. Introduction of other evidence is proper when seeking a writ for post-conviction relief, not on appeal. State v. Elliott (1986), 221 Mont. 174, 178, 717 P.2d 572, 575. As to defendant’s contention that his counsel failed to disqualify Judge Robb, we find no indication in the record that defendant was prejudiced by this fact.

Affirmed.

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

JUSTICE HUNT,

dissenting:

I concur in part and dissent in part and would reverse the conviction. I concur with the majority’s conclusions concerning the issues three, four, five and six. I dissent to the majority conclusions on issues one and two.

While I concur with the majority I would like to add the following to their discussion regarding issue three, admissibility of other crimes evidence; and issue six, ineffective assistance of counsel.

In the third issue, admissibility of other crimes evidence, the majority fails to actually apply the fourth Just factor, the weighing of probative value of the evidence versus its prejudicial effect, to the facts of the case. The majority says that the procedural safeguards were complied with and, by implication, indicates that compliance with these safeguards alleviates any prejudicial effect the other crimes evidence may have on the defendant. This is just not so. Although the procedural safeguards do alleviate some of the prejudice to the defendant, they do not replace the court’s ultimate task of weighing the probative value of the other crimes evidence against its prejudicial effect.

Even if the prior crimes evidence fits within the first three Just factors, as it did in this case, thereby “giv[ing] great probative weight to the evidence of prior acts,” the final weighing must occur. State v. Eiler, 234 Mont. 38, 51, 762 P.2d 210, 218 (1988). I do agree that, in light of the significant evidence linking defendant with the charge of criminal trespass to a vehicle and the compliance with the procedural factors and the first three Just factors, the probative value exceeds the prejudicial effect of the introduction of the other crimes evidence.

Discussing the sixth issue, ineffective assistance of counsel, the majority concludes that because the alleged errors of counsel were merely trial tactics, it cannot be said that counsel was ineffective. While I agree with the conclusion that counsel was not ineffective, I do so for different reasons than those used by the maj ority. Our review of defendant’s allegations must be confined to the record. “In some cases, however [sic] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged.” People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859 (1979). Without an explanation in the record for counsel’s actions or “unless there simply could be no satisfactory explanation” it is difficult to objectively decide whether counsel’s actions or inactions went beyond tactical decision. People, 152 Cal.Rptr. at 740, 590 P.2d at 867. Many of the jurisdictions that have recently found ineffectiveness under the Strickland standards have done so on post-conviction or habeas corpus. See generally Kimmelman v. Morrison, 477 U.S. 365, 91 L.Ed.2d 305, 106 S.Ct. 2574 (1986); Sullivan v. Fairman, 819 F.2d 1382 (7th Cir. 1987); and Williams v. State, 515 So.2d 1042 (Fla. Dist. Ct. App. 1987). In each case, an evidentiary hearing was held to explain inconsistencies in the record.

Turning to the first two issues, that of the State proving the requisite mental state for attempt beyond a reasonable doubt and the State’s use of other property evidence to support this mental state, I dissent to the conclusions of the majority. The principle of criminal law is that the State has the burden of “establish[ing] the necessary criminal intent beyond a reasonable doubt.” State v. Watson, 211 Mont. 401, 415, 686 P.2d 879, 886 (1984); See § 46-16-601, MCA; State v. Kramp, 200 Mont. 383, 651 P.2d 614 (1982); In re Winship, 397 U.S. 358, 25 L.Ed.2d 368, 90 S.Ct. 1068 (1970); U.S. Const. Amend. XIV. Although I agree with the majority that this burden can be met through inference, nonetheless the standard still exists. In its casein-chief, the State fails to meet this burden in proving that the defendant committed an attempted theft.

The State failed to meet its burden in two ways. First, the State failed to prove that defendant had purposely and knowingly planned to steal an object of which he was not aware. Secondly, the State then used inadmissible evidence of other property visible in the vehicle to support the defendant’s mental state.

A person cannot commit the offense of attempt if, looking at the facts as they were understood by that person at the time he acted, the crime did not appear possible. People v. Meyer, 169 Cal.App.3d 496, 215 Cal.Rptr. 352 (1985). See also People v. Leichtweis, 59 A.D.2d, 383, 399 N.Y.S.2d 439 (1977); State v. Niehuser, 21 Or. App. 33, 533 P.2d 834 (1975). In this case, the information charged defendant with attempt to steal a particular piece of property, namely, the pistol. I agree with the majority’s contention that the information need not have referred to any particular item contained within Leader’s truck in order to properly set forth a charge of attempted theft, but since it did, the State is under obligation to prove beyond a reasonable doubt that defendant was attempting to steal the pistol.

Defendant “acted” when he broke the ventilator window of Leader’s truck. At that time, the pistol was hidden from view by a jacket. Because defendant did not know, at the time he acted, that the pistol existed, it was impossible for defendant to purposely or knowingly plan to steal the pistol.

To overcome this flaw, the State presented evidence during trial of other property, primarily fishing gear, that was visible within the truck. As indicated during the following discussion that occurred between the State and defense counsel during jury instructions, the State had planned, throughout its investigation, to rely on this other property evidence to prove defendant purposely or knowingly planned to steal the pistol. The discussion occurred as follows:

“DEFENSE COUNSEL: You never said anything up until today about including fishing poles and fishing tackle and that kind of stuff in the truck as well.
“STATE COUNSEL: I think I told you there was some other stuff there.
“DEFENSE COUNSEL: I don’t recall that. The only thing we have ever talked about that I ever had in mind was just the gun, which was on the front seat, or whatever.
“STATE COUNSEL: But there was other stuff in the car that the jury could find he was likely to take or be inclined to take. So I think the property, as the generic term, is more apropos.”

Defendant was never given notice prior to trial of the existence of this other property evidence. The State’s failure to notify defendant of its intent to use this other property evidence at trial made it impossible for defendant to prepare any rebuttal, resulting in severe prejudice to defendant.

At trial, defendant failed to object to the use of this other property evidence. However, this Court has the discretion to consider the use of this evidence in the interests of justice. As stated in our codified version of the plain error doctrine, § 46-20-701(2), MCA, a trial error may be considered on appeal if the introduction of the questioned evidence affected a constitutional right, was prejudicial to the defendant’s guilt, and was not known and could not have been ascertained with due diligence by defendant or his attorney. The use of this other property evidence complies with these factors.

When viewing the evidence in a light most favorable to the State, there is insufficient evidence to establish the defendant’s requisite mental state beyond a reasonable doubt for attempted theft of a pistol. I would reverse the District Court.

JUSTICE SHEEHY concurs with the foregoing dissent.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    In re the MARRIAGE OF BEATRICE BECKER, Petitioner and Respondent/Cross-Appellant, and RODERICK R. BECKER, Respondent and Appellant.
    No. 89-585.
    Submitted on Briefs June 28, 1990.
    Decided Sept. 13, 1990.
    798 P.2d 124.

      Helene Orenstein, Bozeman, for respondent and appellant.
    Karl P. Seel, Bozeman, for petitioner and respondent/cross-appellant.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Eighteenth Judicial District, Gallatin County, Montana. Beatrice Becker petitioned the District Court for injunctive relief to prevent her former husband, Roderick Becker, from interfering with the sale of real property and distribution of the proceeds pursuant to their 1984 dissolution decree. The District Court ordered that the property be sold as contemplated by the original property settlement agreement, but modified the distribution of the assets by allowing the husband a set-off for the amount he would have received for child support payments. The District Court determined that the wife’s share of the profits was $5,978.06 less one-half of the closing costs. After the filing of the husband’s Notice of Appeal, the District Court issued an order nunc pro tunc to correct mathematical errors, reducing the wife’s award to $2,008.06 less one-half of the costs. From this judgment, the husband appeals and the wife cross-appeals. We affirm in part and remand in part.

The issues are:

1. Did the District Court err in modifying the property settlement and child support agreement?

2. Did the District Court abuse its discretion in valuation of the marital real property?

3. Did the District Court err in issuing an order nunc pro tunc after the husband filed the Notice of Appeal?

4. Did the District Court abuse its discretion in refusing to award attorney’s fees to the husband?

Beatrice and Roderick Becker were married June 10, 1969. The wife filed a petition for dissolution on April 4,1984. At the time of the dissolution, two children were living with the couple, a daughter from the present marriage, age 13, and the wife’s son from a previous marriage, age 17. The husband worked as a self-employed carpenter who contributed to the marital income during the marriage, but due to a disability contributed a minimal amount to the family income for a time previous to the dissolution. The wife was employed as a secretary whose wages were the family’s main source of income at the time of the dissolution.

The wife wanted a quick divorce, and the husband agreed to her handling the divorce procedure. The husband was not represented by counsel. The wife’s attorney drafted the appropriate documents, including the property settlement agreement. According to their agreement, the wife transferred her interest in the couple’s real property, a five-acre tract with a mobile home, to her husband. The agreement stated that the wife was not required to pay the husband child support for her son and the couple’s daughter who were in the husband’s custody. Although not stated in the written property settlement agreement, the husband testified that he agreed to take the wife’s interest in the house in lieu of child support. The wife denied that they had any such understanding. A quit claim deed for the real property was executed to the husband before the dissolution hearing held on May 7, 1984.

At the hearing the District Court rejected the property settlement agreement as unconscionable because the wife received no interest in the real property. The husband and wife then signed an amended property settlement and child custody agreement which merged with the dissolution decree of June 21,1984.

The amended agreement set the value of the real property, which had a $21,078 mortgage, at $110,000 and provided that the husband should reside there until the youngest child graduated from high school. The husband promised to pay the mortgage payment and property taxes while he lived there and agreed to destroy the quit claim deed executed to him. After the youngest child reached her majority, the property was to be sold, and the wife was to receive $44,461 less one-half of the closing costs as her share. The provision that the wife was not required to pay child support was retained in the amended agreement.

Although the amended property settlement agreement provided for it, an appraisal of the property’s value was not made at that time. The husband testified that the figure was set by his wife. The couple had bought the property in 1974 for $32,000. In the present action, the property was appraised for values ranging from $30,000 to $37,000. The husband claimed the 1984 value was less than the present value. The District Court determined that the 1984 value of the real property was $42,550.

The husband testified that he had signed the amended property agreement with the understanding that it was not the true agreement, but a formality to satisfy the court. The husband stated that the original agreement exchanging the wife’s share of the real property for her child support obligation, was still in force. In carrying out the agreement, the wife executed, notarized, and delivered a second quit claim deed to her husband on November 26, 1984, five months after the dissolution decree was granted. The wife testified that she thought it best that the husband and children have the home, which was also the husband’s place of business.

The youngest child reached the age of majority in 1988, and the wife brought this action to enforce the amended property settlement agreement set forth in the dissolution decree and to enjoin the husband from interfering with the sale of the property and distribution of the proceeds.

I

Did the District Court err in modifying the property settlement and child support agreement?

The wife argues that the District Court had no authority to modify the property settlement agreement incorporated into the dissolution decree and that reopening the judgment was barred by the doctrine of res judicata. The husband contends that the agreement had been effectively modified when the wife executed and delivered the quit claim deed to him.

First, we consider the modification of the property settlement agreement, governed for by § 40-4-208, MCA, which provides:

“(3) The provisions as to property disposition may not be revoked or modified by a comb, except:
“(a) upon written consent of the parties; or
“(b) if the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state.”

Section 40-4-208(3), MCA.

The “conditions that justify the reopening of a judgment” include the grounds listed in Rule 60(b), M.R.Civ.P.: mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, misrepresentation, misconduct, or “any other reason justifying relief.” In re the Marriage of Gerleman (1987), 228 Mont. 158, 160, 741 P.2d 426, 427; In re the Marriage of Lorge (1984), 207 Mont. 423, 430, 675 P.2d 115, 118 (citing Hadford v. Hadford (Mont. 1981), 633 P.2d 1181, 1187, 38 St.Rep. 1308, 1316 (Sheehy, J., dissenting)). A property settlement agreement is also subject to modification under the laws governing all contracts. In re the Marriage of Richardson (1985), 214 Mont. 353, 356, 693 P.2d 524, 526.

The District Court found that the parties had “circumvented the authority” of the District Court and “made their own agreement aside from the property settlement agreement that was approved by the court.” The husband and wife had signed the amended property settlement agreement, but apparently had orally agreed to retain the original property settlement agreement. Pursuant to this agreement, the wife deeded her interest in the couple’s real property to her husband in lieu of child support. The wife then brought this action attempting to enforce the amended property settlement agreement which required that the property be sold and that the wife receive $44,000 as her share. The present value of the property is $37,000. Nothing was provided to the husband for child support or for the mortgage payments and property taxes he had paid.

The situation is akin to that in State, ex rel. Blakeslee v. Horton (1986), 222 Mont. 351, 722 P.2d 1148. In that case, subsequent to the divorce, the parties made an agreement regarding child support payments, and fourteen years later the wife tried to enforce the child support terms of the dissolution decree. We adopted the finding of Judge Luedke: “ ‘Equity cannot allow the mother to participate in nullification of the purpose of the law in fact, and at the same time, allow her to claim the benefit of it in theory....’ ’’Blakeslee, 222 Mont. at 355, 722 P.2d at 1150 (Emphasis omitted).

The principle here is the same. To allow the wife to enforce the amended property settlement agreement, as written, would be unjust. Not only would the wife receive the entire proceeds from the property, she would evade her legal and moral obligation of child support. Section 40-4-204(1), MCA; State Dept. of Revenue v. Hubbard (1986), 222 Mont. 156, 159, 720 P.2d 1177, 1179. Moreover, the wife would be unjustly enriched by the mortgage payments, taxes and maintenance costs which the husband paid during the years he occupied the property. These conditions justify the reopening of the judgment pursuant to § 40-4-208(3)(b), MCA.

We note that child support is not ordinarily granted retroactively. Section 40-4-208(1), MCA. If child support has never been determined, it cannot be modified; and the statutory provision prohibiting retroactive modification, § 40-4-208(1), MCA, does not control. Hubbard, 222 Mont. at 161, 720 P.2d at 1180. In Hubbard, as here, the district court was correct in ordering collection of child support back to the date of the dissolution decree.

We hold that the District Court had sufficient grounds for modifying the distribution of the assets after the sale of the real property to allow the husband what he would have received if he had been paid child support payments rather than his wife’s share of the real property.

Secondly, we address the husband’s argument that the quit claim deed executed and delivered to him five months after the entry of the dissolution order validly modified the property settlement agreement. The Property Settlement and Child Custody Agreement prohibited modification “except by judcial [sic] order or by mutual consent and agreement of the parties, expressed in writing.” The husband contends that the quit claim deed constituted written “mutual consent and agreement of the parties,” and was therefore a valid modification of the agreement giving him the wife’s interest in the real property. The wife claims that the transfer was void for lack of consideration.

We need not decide this issue since we have affirmed the District Court’s decision that their subsequent agreement, whether oral or written, circumvented the authority of the court and was invalid.

II

Did the District Court abuse its discretion in valuation of the marital real property?

The current market value of the property was appraised at $30,000. Using a cost approach analysis, based on replacement cost, the property was valued at $37,000. The court chose the latter figure and then added 15% based on the change in property values to arrive at an approximation of the 1984 value of the real property of $42,550. The husband claims that the court should have used the $30,000 figure and should have decreased the amount by 12-15%, rather than increased it.

Generally, the District Court is vested with broad discretion in performance of its duty to achieve an equitable property distribution and can adopt any reasonable valuation so long as it is supported by the record. In re the Marriage of Johns (1989), 238 Mont. 256, 258, 776 P.2d 839, 840; In re the Marriage of Luisi (1988), 232 Mont. 243, 247, 756 P.2d 456, 459. No abuse of discretion occurred in using the $37,000 valuation.

In determining the 1984 valuation of the real property, the District Court used the appraisal by Gary France. The letter written by Mr. France stated that appraising the 1984 value of property was “somewhat speculative and unverifiable” and that in his opinion property had appreciated to a high in the “early 1980’s” after which it declined to present levels. Mr. France also stated that a “loss of 12% to 15% was not uncommon,” but did not make it clear to what time frame he was referring. The District Court interpreted the statement to mean that property values had decreased 12 to 15% from 1984 to the present. However, the appraiser went on to state that the 1984 value of the real property in question was comparable to its 1974 value ($32,000). In the appraiser’s opinion, the decline had already taken place by 1984. Thus, the court misinterpreted the appraiser’s admittedly confusing analysis of 1984 property values, and this portion of the opinion is remanded to the District Court for further consideration.

Ill

Did the District Court err in issuing an order nunc pro tunc after the husband filed the Notice of Appeal?

After the Notice of Appeal was filed, the District Court issued an order nunc pro tunc to correct errors in mathematical calculations made in determining the wife’s share of the proceeds from sale of real property. The District Court has inherent power to correct clerical errors in its own judgments in order to ensure that the record “speaks the truth” and reflects what the court actually decided. State v. Owens (1988), 230 Mont. 135, 138, 748 P.2d 473, 474. Whenever a clerical mistake occurs in a judgment, order, or other part of a court record, and the error is admitted by the parties or can be rectified without inequity or prejudice to another party, the district court can correct the error at any time, either nunc pro tunc or by an order pursuant to Rule 60(a), M.R.Civ.P. Winn v. Winn (1982), 200 Mont. 402, 412, 651 P.2d 51, 56. Such an order cannot be used to correct judicial errors. In re Marriage of Cannon (1985), 215 Mont. 272, 274, 697 P.2d 901, 902.

Here the court made mathematical errors in its calculations of the wife’s share of the proceeds from the sale of real property. Although the wife’s portion was reduced from $5,978.06 to $2,008.06, the error was purely clerical and made the record “speak the truth.”

The wife argues that the District Court’s order was invalid because it no longer had jurisdiction over the matter once the Notice of Appeal was filed. Once a proper appeal is taken, jurisdiction of the cause passes from the District Court to the Supreme Court. However, the District Court retains the power to correct clerical errors even after the appeal is initiated. Powers Mfg. Co. v. Leon Jacobs Enterprises (1985), 216 Mont. 407, 411-12, 701 P.2d 1377, 1380; Northern Plains Resource Council v. Board of Health & Environmental Sciences (1979), 184 Mont. 466, 472, 603 P.2d 684, 688. We hold that the District Court did not err in issuing the order nunc pro tunc after the Notice of Appeal had been filed.

IV

Did the District Court abuse its discretion in refusing to award attorney’s fees to the husband?

The general rule is that the prevailing party is not entitled to attorney’s fees absent a specific contract provision or statutory grant. Cannon, 215 Mont. at 276, 697 P.2d at 903. The Property Settlement and Child Custody Agreement incorporated into the dissolution decree provides that in any action to interpret or modify the agreement, the court “may award reasonable attorneys fees and Court costs as provided by law.” By statute, the corut “after considering the financial, resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 and 4 of this title and for attorney’s fees....” Section 40-4-110, MCA (Emphasis added). Since under the express contractual agreement and the statute, the awarding of attorney’s fees is permissive, the appropriate standard of review is whether the court abused its discretion. In re the Marriage of Smith (Mont. 1990), [242 Mont. 495,] 791 P.2d 1373, 1378, 47 St.Rep. 925, 931; In re the Marriage of Anderson (1988), 230 Mont. 89, 95, 748 P.2d 469, 472.

The husband claims that the court should have awarded him attorney’s fees because the wife in bringing this action forced him to retain counsel and sustain substantial costs. The statute requires the court to consider “the financial resources of both parties,” but does not mandate consideration of any other factors. Section 40-4-110, MCA.

In this case, the record indicates that the court thoroughly analyzed the financial resources of each party. We find no abuse of discretion by the District Court in denying the husband attorney’s fees.

We affirm this decision in part and remand for further consideration the District Court’s valuation of the marital property consistent with this opinion.

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


text:
    NEW HAMPSHIRE INSURANCE GROUP, Plaintiff and Respondent, v. JAKE STRECKER, Defendant, and K.S., Defendant and Appellant.
    No. 89-590.
    Submitted on Briefs July 13, 1990.
    Decided Sept. 13, 1990.
    798 P.2d 130.

      James W. Walen, Keefer, Roybal, Hanson, Stacey & Walen, Billings, for defendant and appellant.
    L.D. Nybo, Conklin, Nybo, LeVeque & Murphy, P.C., Great Falls, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Thirteenth Judicial District Court, Yellowstone County. Plaintiff New Hampshire Insurance Group (New Hampshire) brought suit, seeking a declaratory judgment that it did not owe a duty to defend or indemnify its insured, defendant Jake Strecker (Jake) in a civil action brought by co-defendant and appellant K.S. for sexual molestation. The District Court found in New Hampshire’s favor on a motion for summary judgment. K.S. appeals from that order. We affirm.

The issue raised by appellant K.S. is:

Did the District Court err by granting New Hampshire’s motion for summary judgment, thus precluding insurance coverage?

Jake sexually assaulted, molested and abused his daughter, K.S., for approximately ten years beginning when she was six years old. Jake testified by deposition that he did not intend to harm K.S. as a result of this continual sexual molestation. Jake was charged with and pled guilty to three counts of felony sexual assault. In January 1986, K.S. filed a civil action against Jake based on this sexual abuse seeking damages for economic losses, medical treatment, and emotional distress.

Jake tendered this lawsuit to his insurer, New Hampshire, to defend and indemnify in the event K.S. recovered. The two policies in effect were a farm-ranch comprehensive general liability umbrella policy for Strecker Farms, Inc., which also named Jake Strecker individually. The general liability policy provisions stated that the company will pay damages for bodily injury or property damage caused by an “occurrence.” Occurrence is defined as “an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured.” (Emphasis added.) The general liability extension provides that insurance does not apply to “personal injury . . . arising out of willful violation of a penal statute or ordinance committed by or with the knowledge or consent of the insured.” The commercial umbrella policy covers damages for personal injury caused by an occurrence which is neither “expected or intended from the standpoint of the insured.” Personal injury includes assault and battery not committed by or at the direction of the insured unless preventing or eliminating danger to persons or property.

Based on these clear and unambiguous policy exclusions, New Hampshire declined to provide a defense in the underlying lawsuit or to indemnify Jake for any damages which might be recovered against him. New Hampshire filed a declaratory judgment action in the District Court seeking a determination that there was no insurance coverage for Jake under these policies for KS.’s damages. New Hampshire moved for summary judgment pursuant to Rule 56, M.R.Civ.P. The motion was submitted to the District Court on a set of stipulated facts. The matter was fully briefed and argued by counsel for the parties. On August 18, 1989, the District Court entered its memorandum and order granting summary judgment in favor of New Hampshire. Judgment was entered accordingly from which K.S. now appeals.

“Occurrence” insurance policies clarify the concept of “accident” in order to preclude coverage for harm resulting from intentional acts. This definition of occurrence raises the issue of whether Jake’s sexual molestation of K.S. was intentional, rather than accidental, thus precluding coverage under Jake’s insurance policy with New Hampshire. We agree with the District Court’s finding that Jake intentionally molested K.S.

The issue raised on appeal is whether the District Court erred by granting New Hampshire’s motion for summary judgment.

The standard of review is clear. Summary judgment is only proper under Rule 56(c), M.R.Civ.P, where the record discloses that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Mutual Service Cas. Ins. Co. v. McGehee (1985), 219 Mont. 304, 306, 711 P.2d 826, 827.

Under the undisputed facts of this case, as stipulated to by all parties, New Hampshire was entitled to summary judgment as a matter of law. The undisputed facts show the following:

(1) Jake admits that he sexually molested K.S. for nearly ten years. In the instant case there is no evidence to show that Jake did not intend to sexually molest his daughter for ten years. Such actions are not accidental. Furthermore, Jake was not suffering from any mental disability. Evidence of diminished mental capacity might preclude the insured from forming the requisite intent to harm. See, e.g., State Farm Fire & Casualty Co. v. Jenner (9th Cir. 1988), 856 F.2d 1359; Allstate Insurance Co. v. Gilbert (9th Cir. 1988), 852 F.2d 449; State Farm Fire & Casualty Co. v. Pickard (9th Cir. 1988), 849 F.2d 1220. Jake testified in his deposition that he knew he had a problem, that he needed help and that he might be harming K.S. Jake also pleaded guilty to three counts of felony sexual assault of a minor. This plea may be introduced in the subsequent civil action as an admission. Teitelbaum Furs, Inc. v. Dominion Insurance Co. (1962), 58 Cal.2d 60, 25 Cal. Rptr. 559, 561, 375 P.2d 439, 441; cert. denied, 372 U.S. 966, 83 S.Ct. 1091, 10 L.Ed.2d 130 (1963). In light of these considerations it would fly in the face of reason to hold that Jake did not intend to harm K.S. by continuing his course of conduct. We adopt the District Court’s finding that Jake’s actions were intentional.

(2) This sexual abuse caused injury to K.S.

(3) Jake’s insurance policies with New Hampshire do not provide coverage for personal or bodily injury caused by intentional acts. This is not a question of contract interpretation. Courts have no authority to change a contract when its intent is clear. Courts may not disregard the express language of a contract. Lemley v. Bozeman Community Hotel Co. (1982), 200 Mont. 470, 651 P.2d 979. See also §28-3-401, MCA.

The insurance policies here are plain and unambiguous. The general liability policy provisions preclude coverage for injury if either of two prongs are satisfied. The first prong is satisfied if the injury was not caused by an accident. The second prong is satisfied if the injury was either expected or intended from the standpoint of the insured. The District Court found that Jake’s acts of sexual molestation were intentional and we adopt this finding. As such, the first prong of the general liability policy’s exclusionary clause is satisfied and coverage is precluded.

Furthermore, along this same line of reasoning, we agree with the District Court’s holding that neither the general liability extension nor the commercial umbrella policy provide coverage for harm resulting from sexual molestation. Both of these policies were clearly intended to deny coverage for intentional misconduct. Neither Jake nor New Hampshire contemplated insurance coverage for sexual molestation. Jake cannot insulate himself under any of these policies since the undisputed facts show that Jake intended to sexually assault K.S. We hold that there are no questions of fact and as a matter of law, New Hampshire is entitled to judgment.

Jake’s testimony by deposition raises a factual question regarding his subjective intent to cause K.S. harm. Appellant contends that the existence of this factual question precludes summary judgment. We disagree. In reaching our holding we do not focus on Jake’s subjective intent to cause harm.

K.S. alleged theories of negligence in her underlying complaint, but these theories are necessarily based upon the numerous alleged acts of molestation which cannot be deemed negligent acts. Coverage is based upon the acts giving rise to the claims, not necessarily the language of the complaint. Burns v. Underwriters Adjusting Co. (1988), 234 Mont. 508, 510, 765 P.2d 712, 713. We affirm the District Court’s summary judgment in favor of New Hampshire.

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