text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT GOULD, Defendant and Appellant.
    No. 95-018.
    Submitted on Briefs July 27, 1995.
    Rehearing Denied September 21, 1995.
    Decided September 7, 1995.
    52 St.Rep. 930.
    902 P.2d 532.
    273 Mont. 207.

      For Appellant: Edmund F. Sheehy, Jr.; Cannon & Sheehy, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Barbara C. Harris, Ass’t Attorney General, Helena; Brant Light, County Attorney, Dean D. Chisholm, Deputy County Attorney, Great Falls.
   JUSTICE GRAY

delivered the Opinion of the Court.

Robert Gould (Gould) appeals from the judgment and sentence entered by the Eighth Judicial District Court, Cascade County, on the jury verdict finding him guilty of the offense of sexual intercourse without consent. We affirm.

We restate the issues on appeal as follows:

1. Did the District Court err in denying Gould’s motion to dismiss based on lack of speedy trial?

2. Did the District Court err in concluding that mental incapacity, as defined in § 45-2-101(35), MCA, includes voluntary intoxication and in denying Gould’s motion to dismiss on that basis?

3. Did the District Court err in denying Gould’s motion for a directed verdict of acquittal based on insufficiency of the evidence on the “without consent” element of the offense of sexual intercourse without consent?

4. Is there sufficient evidence to support the jury’s guilty verdict on the offense of sexual intercourse without consent?

Disregarding minor discrepancies, the general facts in this case are not disputed. On the evening of February 5, 1992, Janetta Jo Paitra Clark (Clark), Tami Lynn Archer Horvath (Horvath), Russ Moddison (Moddison), Ian “Skip” Johnson (Johnson), Jordan Mattfeld (Mattfeld) and Gould met at the Black Eagle Country Club, in Black Eagle, Montana. The group drank and socialized at the club for several hours. Clark consumed approximately nine drinks. The group left the club at approximately 1:00 a.m. on the morning of February 6, 1992.

After leaving the club, the group met at the residence of Mattfeld and Johnson. At around 1:45 a.m., Mattfeld and Clark had a drinking contest in which they took turns drinking from a fifth of Jack Daniels. Clark drank approximately one-half of the bottle.

After the contest, Clark stumbled into Mattfeld’s room. At one point, Clark fell and Mattfeld had to assist her in getting up. Clark collapsed onto Mattfeld’s bed and, soon thereafter, Johnson and Moddison assisted her from Mattfeld’s room to Johnson’s room. They removed Clark’s sweater and jeans, then stepped into the hallway where, together with Gould, they discussed having sex with Clark. Moddison returned to Johnson’s room; Johnson and Gould went to the living room.

Moddison removed Clark’s bra and underwear and had vaginal and anal intercourse with her. Johnson also had vaginal and anal intercourse with Clark. Finally, Gould entered the room and had vaginal intercourse with Clark. A few hours later, Moddison discovered Clark dead on Johnson’s bed.

On April 13, 1993, the State of Montana (State) charged Gould by information with the felony offense of sexual intercourse without consent. Gould’s jury trial began on June 6, 1994, and the jury returned a guilty verdict on June 8, 1994. Additional facts are set forth where necessary to our resolution of the issues.

1. Did the District Court err in denying Gould’s motion to dismiss based on lack of speedy trial?

The Sixth Amendment to the United States Constitution and Article II, Section 24 of the Montana Constitution guarantee a criminal defendant the right to a speedy trial. Gould argues on appeal that the District Court erred in denying his motion to dismiss based on lack of speedy trial.

The State contends that Gould waived his right to a speedy trial and, as a result, that we should refuse to reach the merits of his argument. While it is true that Gould waived his right to a speedy trial on two occasions, first on September 14, 1993, and again on December 13,1993, the record indicates that his waivers were limited to specific time periods. Therefore, the waivers did not constitute a total waiver by Gould of his speedy trial rights and we will address the waivers within our speedy trial analysis.

The United States Supreme Court set forth a four-factor test to be used in determining whether a defendant’s right to a speedy trial has been violated in Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117; we adopted the Barker test in State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-64. The Barker factors are: (1) length of the delay; (2) reason for the delay; (3) defendant’s assertion of the right; and (4) prejudice to the defendant. State v. Thompson (1993), 263 Mont. 17, 32, 865 P.2d, 1125, 1134 (citation omitted). None of these factors alone is dispositive; rather, they are considered together and balanced in light of the unique circumstances of each case. State v. Stewart (1994), 266 Mont. 525, 529, 881 P.2d 629, 632 (citations omitted).

Length of Delay

The length of the delay is of primary importance. State v. Heffernan (1991), 248 Mont. 67, 70, 809 P.2d 566, 568. Unless the length of the delay is presumptively prejudicial, it is unnecessary to consider the remaining three factors. State v. Weeks (1995), [270 Mont. 63], 891 P.2d 477, 482 (citation omitted). If a delay is presumptively prejudicial, the State has the burden of rebutting the presumption by providing a reasonable explanation for the delay and showing that the defendant was not prejudiced. State v. Curtis (1990), 241 Mont. 288, 299, 787 P.2d 306, 313 (citation omitted). We previously have stated that a delay greater than 200 days usually triggers a full speedy trial analysis. State v. Hembd (1992), 254 Mont. 407, 413, 838 P.2d 412, 416 (citation omitted).

Here, the total delay between the filing of the information and the commencement of Gould’s trial was 419 days. Thus, the length of delay is presumptively prejudicial and we analyze the remaining speedy trial factors.

Reason for Delay

Analysis of the second factor, reason for the delay, requires allocating the delay to the party responsible for causing it. Heffernan, 809 P.2d at 568. The overall 419-day delay in this case can be divided into five segments.

The first segment, of 56 days, began when the State filed the information against Gould on April 13, 1993, and continued until June 8,1993, when Gould successfully moved to continue the trial set for June 21, 1993. This segment of the delay is attributable to the State.

The second segment, of 136 days, began on June 8, 1993, and continued until October 22,1993, when the State successfully moved to continue the trial set for October 25,1993. During this time, Gould successfully moved for three continuances and, in his September 14, 1993, motion, specifically waived his right to a speedy trial until October 11, 1993, when Dr. Donald Reay, an expert witness for the defense, would be available for trial. Additionally, he entered into, and then withdrew from, a plea agreement with the State. Upon withdrawing from the plea agreement, Gould informed the court he would be seeking new counsel.

Gould points out that the State amended the information against him during this period by dropping one of the charges. In fact, the State filed the amended information on July 26,1993, subsequent to Gould’s successful motion to continue. Gould argues that we should allocate the time from that date until October 22,1993, to the State. However, the amended information did not impact the trial date set in response to Gould’s July 26, 1993, motion to continue and did not require additional trial preparation by Gould; therefore, the State’s filing of the amended information did not result in any delay. This 136-day segment of delay is attributable to Gould.

The third segment, of 34 days, began on October 22,1993, and continued until November 24, 1993. The State’s October 22, 1993, motion to continue was due to Gould’s failure to obtain counsel after his withdrawal from the plea agreement with the State. On November 18, 1993, upon motion by the State, Gould appeared in court and was ordered to retain counsel or proceed pro se by November 24,1993. While this segment of delay arguably should be attributed to Gould on the basis that his unrepresented status undoubtedly prompted the State’s October 22nd and November 18th motions, we attribute it to the State given the importance of the right to a speedy trial at issue here.

The fourth segment, of 106 days, began on November 24,1993, and continued until March 11, 1994. Although ordered to retain counsel or proceed pro se by November 24,1993, Gould did not appear with new counsel until December 13, 1993. Additionally, Gould requested that his trial be set no sooner than March 7,1994, and in this request, he waived his right to a speedy trial for that time period. On March 11,1994, the State successfully moved to continue the trial set for March 21, 1994. This segment of delay is attributable to Gould.

The fifth segment, of 87 days, began with the State’s March 11, 1994, motion to continue the trial date, and concluded when Gould’s trial began on June 6, 1994. During this period, the District Court, on its own initiative, continued the trial and set an omnibus hearing. This segment of delay is attributable to the State.

Gould is responsible for 242 days, while the State is responsible for 177 days, of the 419-day overall delay. The right to a speedy trial was primarily designed to protect defendants from oppressive tactics by the prosecution. Heffernan, 809 P.2d at 569; citing Barker, 407 U.S. at 529, 92 S.Ct. at 2191. Gould does not contend, and the record does not reflect, that the State engaged in any deliberate tactics to delay the trial. The delay we attribute to the State was of the type which is inherent in the system and which we categorize as institutional delay. See Hembd, 838 P.2d at 416; Heffernan, 809 P.2d at 570. Institutional delay weighs less heavily against the State than purposeful delay. Hembd, 838 P.2d at 416 (citation omitted). Under the circumstances of this case, we conclude that the State has satisfied its burden of providing a reasonable explanation for the 177 days of delay attributed to it.

Assertion of the Right

A motion to dismiss for denial of speedy trial is timely if made prior to the actual commencement of trial. Briceno, 568 P.2d at 165; citing State v. Steward (1975), 168 Mont. 385, 543 P.2d 178. Gould moved to dismiss the charges against him on speedy trial grounds on May 2, 1994, approximately one month prior to the scheduled trial date. Thus, Gould satisfied the third Barker factor by timely asserting his right.

Prejudice to the Defendant

The fourth Barker factor is prejudice to the defendant. We assess prejudice by considering the following interests protected by the right to a speedy trial: (1) preventing oppressive pretrial incarceration; (2) minimizing the defendant’s anxiety and concern; and (3) limiting the impairment of the defense. Curtis, 787 P.2d at 315 (citations omitted).

Gould argues that he clearly has established the pretrial incarceration factor because he was incarcerated on this charge while awaiting trial. Gould’s pretrial incarceration, however, does not weigh in his favor under the circumstances of this case.

On February 6, 1992, while awaiting sentencing on an unrelated offense, Gould committed the offense at issue in this case. He was sentenced on the unrelated offense to ten years’ imprisonment, with five years suspended, approximately two and one-half weeks later and began serving his sentence at the Montana State Prison. On December 24, 1992, he was transferred to the Billings Pre-Release Center. In April, 1993, while at the Pre-Release Center, Gould was arrested for the offense at issue here. At that time, he obviously had not completed his sentence for the unrelated offense. On May 11,1993, Gould successfully moved the District Court to allow him to remain incarcerated at the Cascade County Jail, rather than being returned to the Montana State Prison, because allowing him to remain in Cascade County would benefit him in preparing his defense.

It appears that Gould would have remained in the custody of the Montana Department of Corrections and, thus, incarcerated in some manner during the period in question. This Court previously has held that incarceration on a different charge negates any prejudice resulting from incarceration while awaiting trial. Hembd, 838 P.2d at 416. Under these circumstances, Gould’s pretrial incarceration was neither oppressive nor prejudicial.

Gould argues that he suffered overwhelming anxiety and concern because of his lengthy incarceration. In this regard, we note that, as discussed above, Gould would have been in custody in any event; thus, anxiety and concern relating to the length of his incarceration are not specifically related to his incarceration on the offense at issue here. Gould also argues that he suffered from anxiety and concern due to the nature of the charge and the circumstances under which this offense occurred. Specifically, he contends that Clark’s inability to testify caused additional anxiety and concern.

A certain amount of anxiety and concern is inherent in being charged with a crime. Thompson, 865 P.2d at 1135 (citation omitted). Proving anxiety and concern beyond that which normally accompany being charged with a crime is extremely difficult. See Curtis, 787 P.2d at 316. Once accomplished by a defendant, the State faces the nearly impossible task of proving lack of anxiety and concern. Curtis, 787 P.2d at 316. Where a defendant puts forth only marginal evidence of anxiety and concern, the State’s burden of proving lack of anxiety lessens considerably. Curtis, 787 P.2d at 316.

In support of his claim of overwhelming anxiety and concern, Gould offers nothing more than bare assertions summarizing the circumstances in this case. He fails to present even marginal evidence proving that he suffered anxiety and concern beyond that inherent in being charged with this offense. We conclude that the minimal anxiety and concern Gould established did not exceed that which is inherent in being charged with the offense at issue here and, therefore, this interest does not weigh heavily against the State.

The most important consideration in analyzing prejudice to a defendant resulting from pretrial delay is whether the delay impaired his defense. Stewart, 881 P.2d at 634. Gould argues that his defense was impaired because the time lag of more than two years between the alleged crime and the trial resulted in witnesses’ memories fading.

It is clear that prejudice exists if defense witnesses are unable to accurately recall events of the distant past. See Heffernan, 809 P.2d 570; citing Barker, 407 U.S. at 532, 92 S.Ct. at 2193. Here, Gould was the only defense witness. His defense at trial was that Clark consented to intercourse with him. He remembered the details with regard to intercourse with Clark and testified that she consented. The record clearly shows that Gould was able to effectively, albeit unsuccessfully, present this defense.

Gould also argues that his defense was impaired due to the manner in which Moddison’s and Johnson’s charges were handled; Moddison pled guilty to sexual intercourse without consent and the charge against Johnson was dropped. It is unclear how this relates to the pretrial delay in this case. We conclude that Gould’s defense was not impaired by the delay.

In summary, although Gould timely asserted his right to a speedy trial, his own actions delayed the trial for 242 days and the delay attributable to the State was institutional. Gould was not prejudiced by the delay. After balancing the four Barker factors, we hold that the District Court did not err in denying Gould’s motion to dismiss based on lack of a speedy trial.

2. Did the District Court err in concluding that mental incapacity, as defined in § 45-2-101(35), MCA, includes voluntary intoxication and in denying Gould’s motion to dismiss on that basis?

At the close of the State’s case, Gould moved to dismiss the charge against him as a matter of law. He argued that Clark’s voluntary intoxication precluded the State from establishing that Clark was mentally incapacitated and, therefore, from proving the “without consent” element of the offense of sexual intercourse without consent. The District Court concluded that mental incapacity, as defined in § 45-2-101(35), MCA, is not limited to situations where the victim is involuntarily intoxicated and denied Gould’s motion on that basis.

Our standard in reviewing a district court’s conclusion of law is whether the interpretation of the law is correct. State v. Christensen (1994), 265 Mont. 374, 375-76, 877 P.2d 468, 469 (citation omitted).

The statutory definition of “without consent” insofar as it relates to the offense of sexual intercourse without consent encompasses the situation in which the victim is incapable of consent because she is mentally incapacitated. Section 45-5-501(1)(b)(i), MCA. Pursuant to § 45-2-101(35), MCA, a person is mentally incapacitated when she is “temporarily incapable of appreciating or controlling [her] own conduct as a result of the influence of an intoxicating substance.” Gould argues that the Montana legislature intended mental incapacity to have the same meaning under § 45-2-101(35), MCA, as it has under the New York law from which Montana’s statute was adopted. Under New York Penal Law § 130.00(6) (1987), mental incapacity means:

a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent.

(Emphasis added.)

In interpreting a statute, we look first to the plain meaning of its words. Christensen, 877 P.2d at 469 (citation omitted). If the legislative intent can be ascertained from the plain meaning of the words used, no further interpretation is required and we will not resort to legislative history. Clarke v. Massey (1995), [271 Mont. 412], 897 P.2d 1085, 1088 (citation omitted). Where the language is plain, unambiguous, direct, and certain, the statute speaks for itself and there is no need to resort to extrinsic means of interpretation. Christensen, 877 P.2d at 469 (citation omitted). In addition,

[i]n the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted ....

Section 1-2-101, MCA.

Section 45-2-101(35), MCA, provides that a person is mentally incapacitated when, due to the influence of an intoxicating substance, she is temporarily incapable of appreciating or controlling her conduct. The statute by its terms does not differentiate between voluntary and involuntary intoxication and is not limited to involuntary intoxication. Section 45-2-101(35), MCA, is clear on its face.

Moreover, while it is undisputed that Montana’s mental incapacity statute was modeled after New York’s, it also is clear that the Montana legislature did not adopt the New York law verbatim. Compare § 45-2-101(35), MCA, with N.Y. Penal Law § 130.00(6) (1987). The Montana legislature’s deletion of the language from the New York statute which limits mental incapacity to situations where the victim is involuntarily intoxicated created a statute substantially different from that upon which our statute was modeled.

The District Court properly refused to insert into § 45-2-101(35), MCA, language from the New York penal statute omitted by the Montana legislature. We conclude that § 45-2-101(35), MCA, by its terms, does not exclude voluntary intoxication. Therefore, Clark’s voluntary intoxication did not preclude the State from proving the “without consent” element of the offense of sexual intercourse without consent.

Gould further argues that there is a double standard in the law because people are responsible for their criminal acts despite their voluntary intoxication pursuant to § 45-2-203, MCA, while victims may be deemed incapable of consent when they are voluntarily intoxicated. He does not assert, however, that this alleged double standard infringes on any Constitutional right and, absent such a challenge, we must apply the statutes as written.

We conclude that the District Court did not err in interpreting mental incapacity, as defined in § 45-2-101(35), MCA, to include voluntary intoxication. Therefore, we hold that the court properly denied Gould’s motion to dismiss.

3. Did the District Court err in denying Gould’s motion for a directed verdict of acquittal based on insufficiency of the evidence on the “without consent” element of the offense of sexual intercourse without consent?

In addition to his motion to dismiss as a matter of law based on statutory interpretation, Gould argued that the charge should be dismissed because the State’s evidence of Clark’s mental incapacitation and, therefore, of the “without consent” element of the offense, was insufficient to go to the jury. The District Court rejected this argument and refused to dismiss the charge.

Pursuant to § 46-16-403, MCA, a trial court may direct a verdict of acquittal and dismiss a criminal charge at the close of the State’s case when the evidence is insufficient to support a guilty verdict. Our standard in reviewing a trial court’s grant or denial of such a motion is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Weeks, 891 P.2d at 491-92 (citation omitted). Here, we focus only on evidence relating to mental incapacity.

The record illustrates that during the evening hours of February 5, 1992, and the early morning of February 6, 1992, Clark drank a substantial amount of alcohol. Dr. John Henneford testified that Clark’s blood alcohol content reached at least .45. Clark’s intoxication was uncontroverted. She ran into things as she attempted to walk, fell and needed assistance in getting up, and had to be assisted to Johnson’s room. Atoxicologist opined that Clark was in the comatose-to-death phase of intoxication and explained that, at the comatose phase, a person becomes unresponsive to conditions around her.

Reviewing the evidence in a light most favorable to the prosecution, we conclude that there was sufficient evidence for the jury to find beyond a reasonable doubt that Clark was mentally incapacitated due to intoxication and, thus, incapable of consent when Gould had intercourse with her. We hold that the District Court did not err in denying Gould’s motion for a directed verdict of acquittal.

4. Is there sufficient evidence to support the jury’s guilty verdict on the offense of sexual intercourse without consent?

Gould argues on appeal that the evidence established that Clark was dead when he had intercourse with her and, therefore, that there was insufficient evidence upon which the jury could find the “person” element of the offense of sexual intercourse without consent.

Our standard in reviewing the sufficiency of the evidence to support a criminal conviction is whether, after reviewing the evidence in a 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. Whitcher (1991), 248 Mont. 183, 187, 810 P.2d 751, 753 (citations omitted).

Gould testified that, when he entered Johnson’s bedroom, he asked Clark how it was going; she replied “all right.” He also testified that, after having intercourse with Clark, he returned to the living room around 2:30 to 2:45 a.m. and watched television. Dr. John Henneford, a pathologist, estimated that Clark died between 3:00 and 5:00 a.m., but opined that she probably died between 4:00 and 4:30 a.m. James Bruckner, the Cascade County Deputy Coroner, also estimated the time of death to be between 4:00 and 4:30 a.m.

Reviewing the evidence in a light most favorable to the prosecution, we conclude that there was sufficient evidence from which the jury could find that the State had proved the “person” element of the offense of sexual intercourse without consent beyond a reasonable doubt. Therefore, we hold that sufficient evidence supported the jury’s guilty verdict.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, TRIEWEILER and LEAPHART concur.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RONALD D. PENCE, Defendant and Appellant.
    No. 94-340.
    Submitted on Briefs June 20, 1995.
    Decided September 8, 1995.
    52 St.Rep. 937.
    902 P.2d 41.
    273 Mont. 223.

      For Appellant: William F. Hooks, Appellate Defender Office, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Kathy Seeley, Assistant Attorney General, Helena; Robert L. “Dusty” Deschamps, III, Missoula County Attorney, Daniel Safransky, Deputy County Attorney, Missoula.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The defendant, Ronald D. Pence, was charged by amended information, filed in the District Court for the Fourth Judicial District in Missoula County, with robbery, in violation of § 45-5-401, MCA. He pled guilty to that charge. The District Court imposed a three-year deferred sentence subject to conditions. Pence violated several of the conditions, and pursuant to a petition to revoke his deferred sentence, the District Court sentenced Pence to 40 years in prison, with 25 years suspended, and declared Pence a dangerous offender. Pence appeals the District Court’s order. We reverse the District Court.

The issues raised on appeal are:

1. Did the District Court err when it designated Pence a dangerous offender for purposes of parole eligibility?

2. Did the District Court err when it failed to consider alternatives to imprisonment?

FACTUAL BACKGROUND

On September 5, 1992, Frank Vannoy went to his rental property in which Pence was living to collect past-due rent. Pence paid Vannoy the money. Vannoy then gave Pence a 30-day eviction notice, to which Pence allegedly responded, “you are never going to get me out.” After this brief encounter, Vannoy got into a car occupied by his sister and brother-in-law. Pence then exited the rear entrance of his home. Vannoy insists, and Pence denies, that Pence had a shotgun with him and “demanded us to halt.” Vannoy alleged that Pence approached the car, pointed the shotgun at him, his sister and brother-in-law, and demanded the rental money which had been paid. Pence denied Vannoy’s account of the incident. He admitted that he exited the rear entrance of the rental property, but asserted that he did not have a shotgun.

On September 21,1992, Pence was charged by information filed in the District Court for the Fourth Judicial District Court, Missoula County, with robbery, pursuant to § 45-5-401, MCA, and two counts of felony assault, pursuant to § 45-5-202, MCA, for this incident, and also with theft, pursuant to § 45-6-301, MCA, for an unrelated incident. The information specified that, for purposes of the robbery charge, Pence put Frank Vannoy “in fear of immediate bodily injury by pointing a shotgun at him.”

Pence pled not guilty to all four charges. The Missoula County Attorney’s office, on June 1, 1993, filed an amended information, charging Pence with robbery. The amended information specified that Pence, while in the course of a theft of $300, “threatened to inflict bodily injury upon Frank Vannoy.” The amended information did not specify that Pence used a shotgun to commit the robbery. Pence pled guilty to the robbery charge. In his written guilty plea, Pence indicated that he had taken “$300 from Frank Vannoy [,] threatening him if he didn’t give it to me.”

The District Court received a presentence investigation report, and on September 2, 1993, ordered Pence’s imposition of sentence deferred for three years, subject to compliance with 16 terms and conditions of probation. The relevant terms and conditions included that: (1) Pence not enter any establishment whose primary source of business comes from the sale of alcohol; (2) Pence not possess or use any alcoholic beverages or use any illegal drugs; (3) Pence submit to blood, breath, and/or urine testing for the purpose of alcohol and/or drug detection upon the request of his probation officer; and (4) Pence obtain counseling as directed by his probation officer. Subsequently, Pence violated all four of these terms and conditions. In addition, Pence violated a state probation rule that prohibits probationers from owning, possessing, or being in control of firearms or deadly weapons.

Pence’s probation officer filed a report of probation violation in the District Court. The report indicated that Pence admitted possession of a firearm and the use of marijuana. As a result, Pence’s probation officer had Pence’s truck searched. Ammunition, a pocket knife, a wooden club, and a “bullet-riddled silhouette target” were found in the truck. Additionally, the report indicates that, as a result of a search of Pence’s home, probation officers located several firearms.

The report recommended that the District Court revoke Pence’s three-year deferred sentence, and that the court sentence Pence to seven years in prison, with three years suspended. The report also recommended that the court consider Pence for the intensive supervision program.

The District Court held hearings to consider the alleged probation violations. At the initial hearing, Pence admitted all violations except the weapons violations. At a subsequent hearing, Pence’s probation officer provided testimony to substantiate the weapons violations.

At the conclusion of Pence’s probation officer’s testimony, the District Court found that Pence had violated the terms of his probation. The court revoked its earlier deferred sentence and sentenced Pence to 40 years in the Montana State Prison, with 25 years suspended. The District Court’s rationale for its ruling was as follows: that Pence had placed Frank Vannoy in great fear; that Pence had signed two documents indicating that he knew that possessing weapons violated his probation; that the court took a great risk in placing Pence on probation in light of the fact that Pence had used a weapon during the commission of the robbery; and that Pence did not appreciate the court’s probationary sentence and went back to his previous behavior of possessing firearms.

The court designated Pence a dangerous offender for purposes of parole eligibility, based on its conclusion that Pence’s attitude about the use of firearms mandated such a designation.

Immediately following the District Court’s oral ruling, Pence’s counsel asked the judge to reconsider his sentence, pointing out that the court was required to consider alternatives to incarceration. The court denied counsel’s request, stating that, “[t]he Court considered alternative placement prior to today’s proceeding. The Court is greatly concerned when there are violations of an armed robbery who [sic] turns around and possesses, I believe, six different types of weapons.”

Pence appeals the District Court’s judgment.

ISSUE 1

Did the District Court err when it designated Pence a dangerous offender for purposes of parole eligibility?

We review a district court’s dangerous offender designation to determine whether the District Court abused its discretion. State v. Buckman (1989), 236 Mont. 37, 40, 768 P.2d 1361, 1363.

Dangerous offender designation is based on § 46-18-404(1), MCA, which provides:

Except as provided in subsection (4), the sentencing court shall designate an offender a nondangerous offender for purposes of eligibility for parole ... if:
(a) during the 5 years preceding the commission of the offense for which the offender is being sentenced, the offender was neither convicted of nor incarcerated for an offense committed in this state or any other jurisdiction for which a sentence to a term of imprisonment in excess of 1 year could have been imposed; and
(b) the court has determined, based on any presentence report and the evidence presented at the trial and the sentencing hearing, that the offender does not represent a substantial danger to other persons or society.

If the court finds that both subsections (a) and (b) of the statute have been satisfied, the court must designate the offender nondangerous. However, if only one part of the statute applies to the offender, it is within the court’s discretion whether to designate him dangerous for parole purposes. State v. Lorenz (1994), 267 Mont. 186, 188, 883 P.2d 98, 99 (citing State v. Miller (1988), 231 Mont. 497, 517, 757 P.2d 1275, 1287).

Section 46-18-404(3), MCA, requires that if a district court designates an offender as dangerous, it shall make that determination part of the sentence imposed and shall state the determination in its judgment. In addition, we have required district courts to articulate their reasons for designating an offender as dangerous. We have held that mere recitation of the statutory language is not sufficient. See State v. Morrison (1993), 257 Mont. 282, 848 P.2d 514.

In its judgment designating Pence a dangerous offender, the District Court gave the following reasons:

1. Mr. Vannoy was placed in great fear by Mr. Pence;
2. Mr. Pence was given a three year deferred imposition of sentence;
3. He [Mr. Pence] signed two documents stating that he knew that the weapons possession meant that it was in violation of his probation;
The Court took a great risk in placing him [Mr. Pence] on probation because it was an offense committed with a weapon and Mr. Pence did not appreciate that and went back to his previous behavior in possessing firearms;
It is the Court’s opinion that Mr. Pence cannot at this time successfully complete a probationary period without some incarceration;
The Court feels that until he [Mr. Pence] changes his attitude about the use of firearms that it is necessary to designate him a dangerous offender.

The District Court did not make specific findings in its judgment that Pence had been convicted of, or incarcerated for, an offense committed in the five years preceding the commission of the robbery charge pending against him, or that Pence represented a substantial danger to other persons or society. It is clear from the record that Pence had never been either convicted of or incarcerated for a felony. As a result, the District Court was free to designate Pence a dangerous offender only if it determined that, based on the presentence report and any evidence presented at the trial and sentencing hearing, Pence posed a substantial danger to other persons or to society.

However, the court did not specifically find that Pence posed a substantial danger to anyone. Furthermore, even if this Court presumed such a finding, there was no clearly articulated rationale to support such a finding, as required by our decision in Morrison.

Finally, we conclude that the record did not contain substantial evidence upon which the District Court could support designating Pence a dangerous offender, and therefore, that the District Court abused its discretion when it did so. The District Court’s designation appears to be based on the facts that Pence placed his victim in “great fear” by use of a weapon and then continued to possess weapons in violation of the terms of his probation. However, there is no basis in the record to find that Vannoy was placed in “great fear.” Pence denied using a weapon; the crime to which he pled guilty did not involve use of a weapon; and his sentence could not have been deferred if his conviction was based on use of a weapon. Section 46-18-222(5), MCA. Neither does mere possession of firearms establish that Pence presents a danger to persons or society.

For these reasons, we reverse that part of the District Court’s sentence which designated Pence a dangerous offender.

ISSUE 2

Did the District Court err when it failed to consider alternatives to imprisonment?

We review a district court’s decision to revoke probation and sentence an offender to prison to determine whether the court abused its discretion. State v. Lundquist (1992), 251 Mont. 329, 331, 825 P.2d 204, 206.

The State first contends that Pence is not a nonviolent offender. The State asserts that, because Pence was charged with robbery and because Vannoy alleged in the presentence investigation that Pence used a shotgun to commit the robbery, he does not qualify as a nonviolent offender. The State ignores the fact that Pence did not plead guilty to a charge that alleged either the threat of, or actual use of, a deadly weapon during the commission of the crime. Section 46-18-104(3), MCA, defines a nonviolent felony offender as “a person who has entered a plea of guilty to a felony offense other than a crime of violence ...” (Emphasis added.) Section 46-18-104(2), MCA, defines a crime of violence as:

(a) a crime in which an offender uses or possesses and threatens to use a deadly weapon during the commission or attempted commission of a crime;
(b) a crime in which the offender causes a serious bodily injury or death to a person other than himself; or
(c) any sexual offense in which the offender causes bodily injury to the victim or uses threat, intimidation, or force against the victim.

Pence did not plead guilty to a “crime of violence,” and unproven allegations in the presentence report do not change the nature of his crime. Consequently, we conclude that Pence is a nonviolent offender.

The State contends, in the alternative, that even if Pence is a nonviolent offender, the District Court adequately considered alternatives to imprisonment. We disagree. The statutory scheme quite clearly sets out the steps a district court must take when sentencing a nonviolent felony offender. Section 46-18-201(10), MCA, states that:

In sentencing a nonviolent felony offender, the court shall first consider alternatives to imprisonment of the offender in the state prison, including placement of the offender in a community corrections facility or program. In considering alternatives to imprisonment, the court shall examine the sentencing criteria contained in 46-18-225. If the offender is subsequently sentenced to the state prison or the women’s correctional center, the court shall state its reasons why alternatives to imprisonment were not selected, based on the criteria contained in 46-18-225.

Section 46-18-225, MCA, states that:

Prior to sentencing a nonviolent felony offender to a term of imprisonment in the state prison or the women’s correctional center, the court shall take into account whether:
(1) the interests of justice and the needs of public safety truly require the level of security provided by imprisonment of the offender in the state prison or the women’s correctional center;
(2) the needs of the offender can be better served in the community or in a facility or program other than the state prison or the women’s correctional center;
(3) there are substantial grounds tending to excuse or justify the offense, though failing to establish a defense;
(4) the offender acted under strong provocation;
(5) the offender has made restitution or will make restitution to the victim of the offender’s criminal conduct;
(6) the offender has no prior history of conviction for a criminal act or has led a law-abiding life for a substantial period of time before the commission of the present crime;
(7) the offender’s criminal conduct was the result of circumstances that are unlikely to recur;
(8) the character and attitude of the offender indicate that the offender is likely to commit another crime;
(9) the offender is likely to respond quickly to correctional or rehabilitative treatment; and
(10) imprisonment of the offender would create an excessive hardship on the offender or the offender’s family.

As we have already concluded, Pence is a nonviolent felony offender. Therefore, the District Court was bound to apply the procedure required by §§ 46-18-201(10) and -225, MCA. In State v. Stevens (1993), 259 Mont. 114, 116, 854 P.2d 336, 337, we stated that § 46-18-201(10), MCA, imposes certain obligations on a court when sentencing a nonviolent felony offender.

Initially, a district court must consider alternatives to imprisonment. Second, in considering alternatives to imprisonment, a district court must examine the ten sentencing criteria found in § 46-18-225, MCA. Finally, if a district court decides against alternatives to imprisonment, it must provide reasons why it did not select alternatives. Stevens, 854 P.2d at 337.

The State contends that the District Court’s cursory statement in the sentencing hearing that, “[t]he Court considered alternate placement prior to today’s proceeding,” “affirmatively establishes” that the court considered alternatives to imprisonment. However, even if we accepted the State’s liberal application of § 46-18-201(10), MCA, the District Court still failed to comply with the second and third Stevens requirements.

The District Court’s judgment makes no mention of the factors set forth in § 46-18-225, MCA, and fails to discuss why, when considering those factors, an alternative to imprisonment might not have been appropriate in this case.

For these reasons, we reverse that part of the District Court’s judgment which designated Pence a dangerous offender; and we vacate the remainder of the sentence and remand for further consideration of his sentence in light of §§ 46-18-201(10) and -225, MCA.

JUSTICES GRAY, HUNT, NELSON and LEAPHART concur.


text:
    ROD AND RIFLE INN, INC., a Montana corporation, Plaintiff and Appellant, v. ROBERT GILTRAP, Defendant and Respondent.
    No. 94-611.
    Submitted on Briefs June 8, 1995.
    Decided September 8, 1995.
    52 St.Rep. 945.
    902 P.2d 38.
    273 Mont. 232.

      For Appellant: Andrew P. Suenram, Hoffman & Suenram, Dillon.
    For Respondent: John S. Warren, Schulz, Davis & Warren, Dillon.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The plaintiff, Rod & Rifle Inn (R&R), filed a complaint in the Fifth Judicial District Court in Madison County in which it alleged that the defendant, Robert Giltrap, breached a remodeling contract by failure to complete performance of services. By counterclaim, Giltrap alleged breach of the same contract by R&R’s failure to pay him. After trial, a jury returned a verdict in which it found neither party entitled to recover upon their respective claims. The District Court found that Giltrap prevailed and awarded him attorney fees. R&R appeals the District Court’s award. We affirm the District Court.

The issue on appeal is:

Did the District Court err when it awarded attorney fees to Giltrap based on its conclusion that Giltrap was the prevailing party?

FACTUAL BACKGROUND

On July 31,1991, R&R and Giltrap executed a written agreement by which Giltrap agreed to remodel property, including a residence which belonged to R&R.

Paragraph 10 of the contract provided that:

In the event of litigation arising out of any breach of this Agreement the prevailing party shall be entitled to collect from the defaulting party its attorneys’ fees and costs.

Pursuant to the terms of the contract, Giltrap was to submit a bill to R&R, and R&R agreed to pay him monthly. Giltrap testified that he initiated work under the contract on January 13, 1992; that he billed R&R $8,605.32 for work he completed during February 1992, and $2,004.46 for work he completed during March 1992. He stated that on March 10,1992, R&R paid him $7,000.00 for the February bill, but nothing for the March bill, and that he then contacted R&R in an attempt to collect the unpaid balance of his February and March bills.

R&R did not make an additional payment, and as a result, Giltrap terminated performance under the contract. R&R subsequently filed a complaint in the Fifth Judicial District Court in Madison County, in which it alleged that Giltrap breached the contract between the parties by his failure to complete the performance of his services. Giltrap’s answer included a counterclaim that R&R breached the contract by its failure to pay him.

At trial, R&R introduced evidence which indicated that Giltrap’s alleged breach caused it to incur damages in the amount of $15,556.41. Giltrap introduced evidence that R&R owed him $1,609.78 for services already performed.

Although the verdict form is less than conclusive, it appears that the jury found no breach by either party and awarded no damages to either party.

Subsequent to trial, both parties filed motions in which they asked the District Court to award attorney fees pursuant to Paragraph 10 of the contract. The District Court concluded that Giltrap was the prevailing party and awarded him $ 10,000 for attorney fees, and $244 for costs. R&R appeals from the fee and cost award.

DISCUSSION

Did the District Court err when it awarded attorney fees to Giltrap based on its conclusion that Giltrap was the prevailing party?

We review a district court’s conclusions of law to determine if they are correct. Shull v. First Interstate Bank (1994), 269 Mont. 32, 37, 887 P.2d 193, 196 (citing In re Marriage of Barnard (1994), 264 Mont. 103, 106, 870 P.2d 91, 93).

Paragraph 10 of the parties’ remodeling contract provided:

In the event of litigation arising out of any breach of this Agreement the prevailing party shall be entitled to collect from the defaulting party its attorneys’ fees and costs.

R&R and Giltrap agree that this provision required an award of attorney fees to the prevailing party.

This dispute arises over the District Court’s determination that Giltrap was the prevailing party. R&R contends that because the jury did not award either party damages, neither party breached the contract, and therefore, neither party prevailed or defaulted. Giltrap contends that the jury’s decision indicates that R&R “totally breached” the contract and that he did not breach the contract.

In E.C.A. Environmental Management Service, Inc. v. Toenyes (1984), 208 Mont. 336, 345, 679 P.2d 213, 217, we held that no one factor is dispositive in determining which party prevailed at trial for purposes of an award of attorney fees. The fact that one party gains a money judgment is an important, although not determinative, factor for the court to consider. E.C.A., 679 P.2d at 217-18. In Schmidt v. Colonial Terrace Associates (1985), 215 Mont. 62, 70, 694 P.2d 1340, 1345, we applied the test set forth in Medhus v. Dutter (1979), 184 Mont. 437, 603 P.2d 669, to an award of attorney fees. In Medhus, we interpreted a statute that provided for the award of costs to the party with a judgment in his or her favor. We stated that:

If, however, a party initiates a law suit [sic], the defendant counterclaims, and the judgment awards both parties part of the relief they seek, the party prevailing on the main issue in controversy in the case must be allowed costs.

Medhus, 603 P.2d at 674. Therefore, we held that, although Medhus dealt with a statutory award of costs, its rationale applied to a situation involving a contractual award of attorney fees. Schmidt, 694 P.2d at 1345. In Schmidt, we concluded that the main issue in controversy was damages for breach of contract. Schmidt, 694 P.2d at 1345. We stated that because the defendants had realized a net judgment in their favor, they had prevailed on the main issue in controversy and were entitled to attorney fees. Schmidt, 694 P.2d at 1345.

R&R contends that Empire Development Co. v. Johnson (1989), 236 Mont. 433, 770 P.2d 525, compels reversal of the District Court’s award. In Empire, we were presented with a claim and counterclaim for breach of contract. The district court found both the plaintiff and the defendant liable for breach of contract, but awarded the plaintiff a “net judgment” of $920 (i.e., the defendant owed the plaintiff more than the plaintiff owed the defendant). On appeal, we stated that both parties breached their duties under the contract. Empire, 770 P.2d at 529. We then cited E.C.A. for the proposition that, in most cases, we will treat the party receiving a net judgment as the prevailing party in an action involving a counterclaim. Empire, 770 P.2d at 530. However, we concluded that when parties mutually breached a contract, the district court did not err when it declined to award attorney fees to either party. Empire, 770 P.2d at 530.

However, in this case there is no indication from the verdict form that the jury found either party breached the contract. Therefore, Empire is inapposite. In this case, part of the relief sought by Giltrap was denial of R&R’s claim for damages. Part of the relief sought by R&R was denial of Giltrap’s claim for damages. The jury’s verdict awarded each party part of the relief sought. However, the main issue in controversy was R&R’s claim for $15,556.41. On that issue, Giltrap prevailed. Therefore, based on the test articulated in Schmidt, we conclude that Giltrap was the prevailing party and the District Court did not err when it awarded attorney fees and costs to him pursuant to the parties’ contract.

In passing, we note that R&R also claims that because Giltrap terminated the contract there was no contractual basis for an award of fees. However, it is clear from the agreed facts and pleadings that a contract was formed, that R&R alleged a breach of that contract by Giltrap, and that Giltrap prevailed on that issue. Therefore, we consider this contention to be without merit.

For these reasons, the judgment of the District Court is affirmed.

JUSTICES GRAY, NELSON, HUNT and LEAPHART concur.


author: CHIEF JUSTICE TURNAGE JUSTICE NELSON

text:
    IN THE MATTER OF THE ADOPTION OF JESSICA LYNN RIFFLE
    No. 95-132.
    Submitted on Briefs July 28, 1995.
    Decided September 13, 1995.
    52 St.Rep. 954.
    902 P.2d 542.
    273 Mont. 237.

      For Appellants: Monte J. Boettger, Attorney at Law, Lewistown; Ann Gilkey, Department of Family Services, Helena; Ronald Arneson, Attorney at Law, Billings.
    For Respondents: Jerrold Nye, Attorney at Law, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Appellants John Garlick, Montana Department of Family Services and Turtle Mountain Band of Chippewa appeal the decision of the Tenth Judicial District Court, Fergus County, granting the petition of respondents Kenneth and Clara Siroky for adoption of Jessica Lynn Riffle. We reverse and remand.

We find the following issue dispositive on appeal:

Did the District Court err in determining that Jessica was not an “Indian child” pursuant to the Indian Child Welfare Act (ICWA)?

The facts relevant to the issue addressed in this opinion are as follows: Jessica Lynn Riffle (Jessica) was born on July 14, 1988, to Mary Garlick Riffle and Gary D. Riffle. Jessica is 1/8 Chippewa Indian. Jessica’s natural parents struggled with alcohol and drug abuse as well as domestic violence. These problems made it difficult for her parents to properly care for Jessica. Jessica spent much time with her extended family, including her grandmother, Dorothy Gar-lick and her uncle, John Garlick.

In May 1990 the Montana Department of Family Services (DFS) removed Jessica from her mother’s care and placed her in the foster care of Kenneth and Clara Siroky. DFS returned Jessica to her mother in December of 1990. DFS again removed Jessica from her mother’s care in June 1991 and returned her to the foster care custody of the Sirokys where she has remained.

On August 4, 1992, the Turtle Mountain Band of Chippewa (the Tribe) was notified of the impending termination of Mary Riffle’s parental rights. The Tribe was again notified on December 16, 1992. The Tribe took no immediate action. On September 28, 1993, the Tenth Judicial District Court terminated Mary and Gary Riffle’s parental rights and awarded DFS permanent custody of Jessica.

DFS commenced adoption proceedings, seeking to find a suitable adoptive parent for Jessica. John Garlick sought custody of Jessica and on May 5, 1993, petitioned for her adoption. DFS concluded that John Garlick was a suitable adoptive parent and consented to his adoption of Jessica. On May 3,1994, the Sirokys petitioned the court for Jessica’s adoption. On May 26, 1994, shortly before John was to receive custody of Jessica, the Sirokys obtained a temporary restraining order preventing Jessica’s removal from their custody.

On May 15, 1994, prior to the District Court’s determination of Jessica’s custody, the Tribe moved the court’s permission to intervene in the proceedings. On May 20,1994, the court preliminarily granted the Tribe’s motion. However, on July 27, 1994, the court adopted the Bureau of Indian Affairs’ (BIA) opinion that Jessica was not an “Indian child” pursuant to ICWA and therefore ICWA did not apply to these proceedings.

On November 14 and 15, 1994, the District Court heard the arguments of petitioner John Garlick and petitioners Kenneth and Clara Siroky concerning their respective desires to adopt Jessica. On December 12, 1994, the District Court issued its findings of fact, conclusions of law, and order granting the Sirokys’ petition for adoption. John Garlick, DFS and the Tribe appeal the decision of the District Court.

Did the District Court err in determining that Jessica was not an “Indian child” pursuant to ICWA?

In its July 27,1994, order, the District Court concluded that J essica was not an “Indian child” pursuant to ICWA and, therefore, the provisions of ICWA were not applied to these proceedings. The court concluded that the Tribe was given the opportunity to intervene in these proceedings, yet failed to indicate whether it considered Jessica eligible for tribal membership. The court proceeded to conclude that the BIA’s determination that Jessica was not eligible to become a member of the Tribe was conclusive. The court held that, even if the Tribe was allowed to intervene later in the proceedings, the BIA’s determination could not be rebutted. In reference to the BIA’s determination that Jessica lacked sufficient blood quantum to be considered for Tribal membership, the court stated:

It is significant that the Bureau’s determination is in the present tense. That is because the disqualifying act “insufficient blood quantum”, that is, not enough Indian blood, is an objective, permanent condition. It is not a condition based upon procedural steps or missteps or nonsteps of the parties.

The court reiterated its conclusion that Jessica was not eligible for membership in the Tribe and therefore not an “Indian child” in its December 12, 1994 findings of fact and conclusions of law concerning the parties’respective petitions for adoption. We review district court conclusions of law to determine whether the court’s interpretation of law was correct. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

ICWA contains a policy statement that encourages tribal input and participation in custody proceedings involving Indian children. Title 25 U.S.C. § 1902 states:

The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

One of the “minimum federal standards” promulgated by ICWA is found in 25 U.S.C. § 1911(c), which provides, “[i]n any State corut proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child’s tribe shall have a right to intervene at any point in the proceeding.” (Emphasis added.)

We note that on May 20, 1994, the District Court granted the Tribe’s motion to intervene. However, on July 27, 1994, the court determined that the Tribe failed to promptly intervene after receiving notice of the proceedings. The court concluded that the Tribe’s failure to promptly intervene after receiving notice of the proceedings waived the Tribe’s right to intervene at a later date. Regardless of the procedural peculiarities of the District Court’s actions, we will address the Tribe’s asserted right to intervene in these proceedings.

We find no support in ICWAfor the court’s conclusion that the Tribe waived its right to intervene. While 25 U.S.C. § 1912 establishes notice requirements which must be fulfilled before proceedings may go forward, this section does not indicate that the Tribe’s right to intervene is impaired if it does not intervene promptly after receiving such notice.

In In the Matter of the Guardianship of Q.G.M. (Okl. 1991), 808 P.2d 684, the Oklahoma Supreme Court concluded that an Indian tribe could not waive its right to intervene merely by failing to intervene within the time provided by 25 U.S.C. § 1912. In resolving this issue, the court explained:

[T]he grandparents argue that the tribe waived its rights when it neither responded nor requested additional time to prepare for the guardianship proceeding which is permitted by 25 U.S.C. § 1912(a) (1978). [Footnote omitted.] Although we might agree with the grandparent’s [sic] position, we are precluded from doing so by 25 U.S.C. § 1911(c)....
As a matter of statutory analysis, the Court must give effect to the Act. We cannot ignore the plain words of a statute. [Footnote omitted.] The statute allows the tribe to intervene at any point in the proceeding.... Even if a tribe fails to intervene at the beginning of a proceeding, it is not precluded from intervening at a later point in the absence of an express waiver of the right to intervene. A waiver of rights by the tribe should not be inferred. [Footnote omitted.]

Guardianship of Q.G.M., 808 P.2d at 688-89.

We agree with the Oklahoma Supreme Court’s interpretation of ICWA. Section 1911(c) provides that a tribe can intervene “at any point in the proceeding.” Absent express statutory language to the contrary, we conclude that the Tribe must be allowed to intervene in these proceedings.

The District Court went on to conclude that, regardless of whether the Tribe was or was not allowed to intervene, Jessica’s status would not be affected. Based on the BIA’s determination, the court concluded that Jessica lacked sufficient blood quantum to ever be considered a member of the Tribe and thus an “Indian child” under ICWA.

Blood quantum does not dictate whether or not an individual is to be considered an “Indian child” pursuant to ICWA. ICWA defines an “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. § 1903(4).

The Department of the Interior has promulgated Guidelines for State Courts (Guidelines) to aid in the interpretation and application of ICWA. This Court has previously determined that the Guidelines, while not binding, are persuasive and should be looked to in interpreting ICWA. In the Matter of M.E.M. (1981), 195 Mont. 329, 336, 635 P.2d 1313, 1318.

Section B.l.(b)(ii) of the Guidelines states:

Absent a contrary determination by the tribe that is alleged to be the Indian child’s tribe, a determination by the Bureau of Indian Affairs that a child is or is not an Indian child is conclusive.

The District Court, relying on this language, concluded that the BIA’s determination that Jessica lacked sufficient blood quantum to be an “Indian child” was conclusive. However, this provision does not require a prior contrary determination by the Tribe to render the BIA determination ineffectual. Rather, it merely requires a contrary determination by the Tribe. The immediately preceding section of the Guidelines, § B.l.(bXi), states:

The determination by the tribe that a child is not a member of that tribe, is or is not eligible for membership in that tribe, or that the biological parent is or is not a member of that tribe is conclusive.

Thus the Tribe, and not the BIA, is the ultimate authority on eligibility for tribal membership.

We hold that the District Court erred in determining that the Tribe waived its right to intervene in these proceedings. We further hold that, under these circumstances, the District Court’s reliance on the BIA’s determination that Jessica is ineligible for membership in the Tribe and therefore not an “Indian child” was incorrect.

We conclude that ICWA is applicable to these proceedings and reverse and remand for a determination of whether Jessica is an “Indian child” pursuant to 25 U.S.C. § 1903(4).

JUSTICES GRAY, HUNT and TRIEWEILER concur.

JUSTICE NELSON

specially concurs.

While I concur fully in our analysis and in the result of our opinion in this case, I am, nevertheless, compelled to make an observation concerning the Tribe’s failure to intervene promptly on being first notified of these proceedings in August, 1992.

It can hardly be denied that the application of the ICWA to a child custody proceeding will likely dictate the child’s temporary and permanent placement, and, perhaps, exclude persons involved in the child’s life who might otherwise be eligible to be custodians or adoptive parents were the Act not controlling. Given that the goal of any child custody proceeding should be to restore the child to or to place the child in a permanent, stable, nurturing environment as expeditiously as possible, the failure of any person or governmental entity or agency — whether tribal or non-tribal — to promptly discharge a right or duty of participation in such a proceeding cannot not be condoned.

I appreciate that a Tribe may not immediately respond to the notice of or intervene in a child custody proceeding because in the early stages it may appear that the likely placement of the child by the State agency and court will be acceptable to the Tribe and to the Native American family members who have priority under the Act. This is all the more true because a substantial number (some 60%, in Montana) of Tribal members and their extended families reside in communities outside their reservation and may not have close ties with their Tribal government, institutions and social support. Accordingly, it may not be immediately apparent to a Tribe that it should become involved in a particular child custody proceeding.

Nonetheless, if, as in this case, circumstances cause the Tribe to intervene in the proceeding at a late stage (here, nearly two years after the initial notice), the net result may be additional litigation and substantial delay in the ultimate resolution of the child’s placement. In the usual child custody proceeding where, almost by definition, the. child’s life already lacks stability and has been seriously disrupted and where the child may have special needs, adding more delay and litigation to an already cumbersome process is simply not acceptable from the standpoint of either the child or the parties involved.

Without criticizing the motives or procedures of the Tribe in this case, I, nevertheless, submit that the early and vigorous participation of the Tribe in all child custody proceedings subject to the Act, whether such participation may, initially, appear to be necessary or not, will ultimately best serve the underlying policies of the IOWA, will ensure that the proceeding will be concluded expeditiously and in accordance with applicable law, and, most importantly, will best serve the paramount right of the child to live in a stable, loving and supportive family environment.


author: JUSTICE TRIEWEILER JUSTICE LEAPHART,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DAMON PATRICK WEREMAN, Defendant and Appellant.
    No. 94-509.
    Submitted on Briefs June 29, 1995.
    Decided September 14, 1995.
    52 St.Rep. 958.
    902 P.2d 1009.
    273 Mont. 245.

      For Appellant: William F. Hooks, State Appellate Defender, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Elizabeth L. Griffing, Assistant Attorney General, Helena; Deborah Butler, Acting Jefferson County Attorney, Boulder.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The defendant, Damon Patrick Wereman, was charged by information in the District Court of the Fifth Judicial District in Jefferson County with bail jumping pursuant to § 45-7-308, MCA. Following trial by jury, a guilty verdict was returned. Wereman appeals from his conviction. We affirm the judgment of the District Court.

The issues on appeal are:

1. Did the District Court err when it admitted evidence of prior statements by Wereman’s counsel to the effect that he had not been able to locate his client?

2. Did the District Court err when it instructed the jury that notice to counsel was considered notice to his client?

FACTUAL BACKGROUND

On August 12, 1985, Wereman was charged by information with aggravated assault in the Fifth Judicial District Court in Jefferson County. The District Court set bail at $2500 and ordered Wereman to make his initial appearance on August 26, 1985. Wereman’s bail was posted, conditioned on his appearance in court, and he was released from jail on August 13, 1985. Wereman failed to appear on August 26,1985, and the court rescheduled his initial appearance for September 3, 1985. Again, Wereman failed to appear. On September 9, 1985, Wereman’s counsel appeared in the District Court without his client and told the District Court that he had unsuccessfully attempted to contact Wereman. Accordingly, the District Court ordered that Wereman’s bail be forfeited.

On April 14, 1993, Wereman was arrested in Helena, based on misdemeanor charges. He was then transferred to the Jefferson County Jail in Boulder to await further prosection of the 1985 aggravated assault charge.

However, that charge was dismissed, and instead, Wereman was charged with bail jumping in violation of § 45-7-308, MCA.

The trial of that charge commenced on May 4, 1994. During the trial, over Wereman’s objection, the State introduced a minute entry from the September 9,1985, hearing during which Wereman’s counsel told the District Court that he had attempted but failed to contact Wereman concerning Wereman’s initial appearance in the aggravated assault case. Thereafter, the jury returned a guilty verdict.

Wereman was sentenced to ten years in prison, with five years suspended, for bail-jumping. The District Court also designated Wereman a persistent felony offender and, as a result, sentenced him to an additional five years in prison to be served consecutively with the bail-jumping sentence. The court also designated Wereman as a dangerous offender for purposes of parole. Wereman appeals the judgment of the District Court.

ISSUE 1

Did the District Court err when it admitted evidence of prior statements by Wereman’s counsel to the effect that he had not been able to locate his client?

We review a district court’s admission of evidence to determine whether the district court abused its discretion in doing so. State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380.

The district court has broad discretion to determine whether or not evidence is relevant and admissible, and absent a showing of an abuse of discretion, the trial court’s determination will not be overturned.

Passama, 863 P.2d at 380 (citing State v. Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054).

Furthermore, “[n]o cause shall be reversed by reason of any error committed by the trial court against the appellant unless the record shows that the error was prejudicial.” Section 46-20-701(1), MCA. “Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.” Section 46-20-701(2), MCA.

The District Court admitted a minute entry that indicated that Wereman’s counsel had informed the District Court that he had “tried different ways in which to contact [Wereman] ... but could not find him....” Wereman argues that admission of the minute entry created a conflict of interest for his counsel, and therefore, was a violation of his constitutionally guaranteed right to effective assistance of counsel pursuant to the Sixth Amendment of the United States Constitution and Article II, Section 24, of the Montana Constitution.

The starting point for analyzing ineffective assistance claims is Strickland v. Washington (1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. In that case, the United States Supreme Court established a two-part test. First, the defendant must prove that counsel’s performance was deficient. Second, the defendant must prove that the deficient performance prejudiced the defendant. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

In support of his contention that he did not receive effective assistance of counsel, Wereman directs our attention to State v. Christenson (1991), 250 Mont. 351, 820 P.2d 1303. In that decision, we set out the two correlative rights established by United States Supreme Court case law in relation to the Sixth Amendment’s guarantee of effective assistance of counsel. Those two rights are: (1) the right to reasonably competent counsel (citing McMann v. Richardson (1970), 397 U.S. 759, 770-71, 90 S. Ct. 1441, 1448-49, 25 L. Ed. 2d 763, 773); and (2) the right to counsel’s undivided loyalty (citing Wood v. Georgia (1981), 450 U.S. 261, 271-72, 101 S. Ct. 1097, 1103-04, 67 L. Ed. 2d 220, 230). We recognized in Christenson that criminal defendants may raise different sorts of ineffective assistance claims to which courts must, correspondingly, apply different tests. For example, when a criminal defendant raises issues relating to conflicts of interest, as Wereman does here, we will apply the test the Supreme Court established in Cuyler v. Sullivan (1980), 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333. In Cuyler, the Court held that ineffective assistance by conflict of interest requires proof that: (1) counsel actively represented conflicting interests; and (2) an actual conflict of interest adversely affected counsel’s performance. Cuyler, 446 U.S. at 350, 100 S. Ct. at 1719.

We have stated that we will presume prejudice if the defendant can establish both prongs of the Cuyler test. Christenson, 820 P.2d at 1306. The reason for this is that a presumption of prejudice is warranted in such a circumstance because “the duty of loyalty, ‘perhaps the most basic of counsel’s duties,’ is breached and ‘it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.’ ” Christenson, 820 P.2d at 1306 (citing Strickland v. Washington (1984), 466 U.S. 668, 692, 104 S. Ct. 2052, 2067, 80 L. Ed. 2d 674, 696).

Wereman contends that admission of his counsel’s remarks effectively transformed his counsel into the State’s key witness. He also contends that once the District Court admitted the minute entry, the court “placed counsel in an insoluble dilemma, for he could not challenge the state’s evidence when he was the source of that evidence. ... In short, counsel’s statements were used against his client, and he could not advocate on behalf of his client.”

Wereman relies on Uptain v. United States (5th Cir. 1982), 692 F.2d 8. In that case, the defendant had been indicted for bail jumping. During trial, the government called Uptain’s counsel to testify that Uptain had notice of the trial date. Uptain’s counsel was the only witness the government called to testify, with the exception of a rebuttal witness. Counsel testified that he had sent two letters by certified mail to the defendant indicating when the trial date was, but that the receipts evidencing their delivery had never been returned to him. Uptain’s counsel also testified that he had spoken with the defendant over the telephone concerning the trial date and, although he could not recall whether he had told the defendant the date of trial, it was his normal procedure to do so.

The Fifth Circuit Court of Appeals ruled that counsel's testimony was “undeniably inherently prejudicial.” The court emphasized the fact that the government’s only witness was the defendant’s counsel and that counsel could not have adequately defended his client when to do so required that he minimize the significance of his own testimony. In reaching its conclusion, the court also emphasized that the defendant’s only defense to the bail-jumping charge was that he did not have either written or oral notice of the trial date. Uptain, 692 F.2d at 10.

The facts in this case differ considerably from those in Uptain. Here, the State presented several witnesses to establish the elements of bail jumping; Wereman’s counsel was not called as a witness; notice was not an issue; and the minute entry at issue would not have shown notice, even if it had been an issue. All the minute entry did show was that Wereman’s counsel did not know where Wereman was on September 9, 1985. The fact that lack of notice was not the reason for Wereman’s failure to appear is evident from his own testimony. On direct examination, Wereman testified as follows:

Q: (DEFENSE COUNSEL) And did you show up for any further court proceedings once you bailed out?
A: (WEREMAN) I’m not too sure. I don’t think I did.
Q: Okay. And what was — what was your intention at that time, Pat? Did — did you intend to run away, or did you have some other idea? What was your — what was your thinking at that time?
A: It was pretty clear to me the case was going to be thrown out. ... So I just figured it was history.
Q: And how did you come to form that opinion?
A: Oh, just talking with different people and stuff.

Subsequently, after Wereman refused to answer questions during cross-examination, the District Court asked Wereman if he had failed to make his initial appearance, to which Wereman responded, “It’s pretty obvious.”

Based on the above discussion, we conclude that admission of the minute entry did not adversely affect counsel's ability to defend Wereman in this case, and therefore, did not satisfy the second prong of the Cuyler test to establish ineffective assistance of counsel. Furthermore, even if the District Court had abused its discretion by admission of the minute entry, we conclude, based on a review of the evidence and issues presented, that the minute entry was not prejudicial to the defendant, and therefore, does not serve as a basis for reversal of the District Court’s judgment.

ISSUE 2

Did the District Court err when it instructed the jury that notice to counsel was considered notice to his client?

We review jury instructions in criminal cases to determine whether the instructions, “as a whole, fully and fairly instruct the jury on the law applicable to the case.” State v. Brandon (1994), 264 Mont. 231, 237, 870 P.2d 734, 737 (citing State v. Lundblade (1981), 191 Mont. 526, 529, 625 P.2d 545, 548). The district court must provide the jury with instructions for each issue or theory which is supported by the record. Brandon, 870 P.2d at 737 (citing State v. Popescu (1989), 237 Mont. 493, 495, 774 P.2d 395, 396).

The District Court instructed the jury that “ [n] otice to an attorney of a court date is notice to the client and knowledge of the attorney is knowledge of his client.” Wereman contends that this instruction relieved the State of proving every element of the bail-jumping offense beyond a reasonable doubt and, in particular, the mental-state element. In other words, Wereman contends that the instruction imputed his counsel’s notice to him. Wereman relies on our decision in State v. Blackbird (1980), 187 Mont. 270, 609 P.2d 708, to support his argument. In Blackbird, the defendant was charged with bail jumping for failing to appear for trial in connection with burglary, aggravated burglary, attempted burglary, and sexual intercourse without consent charges. At trial, one of Blackbird’s defenses was that it was not his purpose to not appear for trial. At the close of trial, the court issued a jury instruction which was, in substance, identical to the one at issue here. We held that the instruction should not have been given because it did not allow the jury to independently assess Blackbird’s mental state. Blackbird, 609 P.2d at 710. We also concluded that giving the instruction was not harmless error.

However, for the reasons set forth in the previous section of this opinion, we conclude that while this instruction should not have been given, it was harmless in the context of this case. Again, Wereman himself testified regarding his reason for not appearing. He stated it was because the charges lacked merit and would be dropped. He said nothing about lack of notice. It was simply not an issue in this case. While Wereman could not have been compelled to testify, he chose to waive his Fifth Amendment right to remain silent (at least until cross-examination). Therefore, his own admissions, and any reasonable inference from those admissions, must be considered.

Therefore, we conclude that the jury instruction complained of was harmless beyond a reasonable doubt and that it did not contribute to the jury’s verdict.

Accordingly, we affirm the decision of the District Court.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and NELSON concur.

JUSTICE LEAPHART,

dissenting.

I dissent from the Court’s opinion on issue two. The District Court instructed the jury that “[n]otice to an attorney of a court date is notice to the client and knowledge of the attorney is knowledge of his client.” In Blackbird, this Court analyzed a virtually identical jury instruction, and held that it was reversible error to so instruct the jury. I cannot join with the majority, which recognizes that the instruction given in Blackbird is “in substance, identical to the one at issue here” and that “the instruction should not have been given,” yet holds that it was “harmless in the context of this case.” As we held in Blackbird:

As a conclusive or mandatory presumption, the instruction had the effect of relieving the State of its burden to prove every element of the offense beyond a reasonable doubt. The inclusion of the instruction obviated the necessity for the jury to independently examine the mental state or the intent or purpose of the defendant. The giving of the instruction was, therefore, error.

Blackbird, 609 P.2d at 710. Section 45-7-308(1), MCA, sets forth the offense of bail-jumping:

Aperson commits the offense of bail-jumping if, having been set at liberty by court order, with or without security, upon condition that he will subsequently appear at a specified time and place, he purposely fails without lawful excuse to appear at that time and place. [Emphasis added.]

Clearly, to purposely fail to appear at a time and place, the defendant must have notice of the time and place. Thus, notice was an element to be proven, not, as the majority infers, a defense that the defendant has to raise. The effect of the instruction was to shift to Wereman the burden of proving lack of notice instead of keeping the burden on the prosecution, where the burden of proof must remain as to every element of the offense. Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39.1 find it troubling that the majority recognizes that Blackbird prohibits this type of conclusive presumption instruction, yet holds that the giving of the instruction “was harmless in the context of this case.”

In Blackbird, we found that the giving of an identical instruction was not harmless error even though the jurors “could have inferred [defendant’s mental state] from other items of evidence introduced at trial, we cannot declare beyond a reasonable doubt that all of the jurors formulated defendant’s mental state this way.” Wereman testified that he did not appear because the charges lacked merit and would be dropped. From this statement, the majority infers that notice was not an issue. I disagree. Whether Wereman raises the issue or not, notice remains an element of the offense of bail-jumping. The instruction relieved the State from its burden of proof on an element of the offense. Even though Wereman said nothing about lack of notice, that does not reheve the State from proving every element of the offense. As a result, I would reverse the District Court on this issue.

JUSTICE GRAY joins in the foregoing dissent of JUSTICE LEAPHART.


text:
    JANET STRICKLAND, Petitioner and Appellant, v. STATE COMPENSATION MUTUAL INSURANCE FUND, Respondent and Insurer for JOSEPH W. TACKETT, Employer.
    No. 94-534.
    Submitted on Briefs July 6, 1995.
    Decided September 14, 1995.
    52 St.Rep. 962.
    901 P.2d 1391.
    273 Mont. 254.

      For Appellant: Roger M. Sullivan and Allan M. McGarvey, McGarvey, Heberling, Sullivan & McGarvey, Kalispell.
    For Respondent: Charles G. Adams, Legal Counsel, State Compensation Insurance Fund, Helena.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The appellant, Janet Strickland, filed a petition in the Workers’ Compensation Court for the State of Montana, in which she sought compensation from the State Compensation Mutual Insurance Fund for injuries she sustained in a two-car accident. The court denied Strickland’s claim on the basis that, at the time of the accident, she was not acting in the course and scope of her employment. Strickland appeals from the judgment which denied her petition. We affirm the Workers’ Compensation Court.

Strickland raises the following issues:

1. Was there substantial evidence to support the Workers’ Compensation Court’s finding that Strickland was on a personal errand at the time of her car accident?

2. Assuming she was on a personal errand at the time of her accident, did the Workers’ Compensation Court correctly conclude that Strickland was not acting in the course and scope of her employment?

FACTUAL BACKGROUND

On August 21, 1992, Janet Strickland was employed by Joe and Sherry Tackett at the Tacketts’ restaurant, Steaks n’ Stuff, west of Columbia Falls in Flathead County. She arrived at work between 3:00 and 4:00 p.m. At approximately 4:00, Strickland left the restaurant to run an errand.

Sometime after Strickland left Steaks n’ Stuff, apparently on her return from the nearest convenience store, a car, which was traveling south on Highway 40 at a high rate of speed, struck her vehicle.

Strickland suffered serious head injuries as a result of the collision and was comatose for approximately six weeks. At the time of trial, Strickland still experienced significant adverse effects due to the accident, including difficulty remembering events during the period just prior to the accident until approximately eight weeks after the accident, or two weeks after Strickland awoke from the coma.

On August 24, 1992, three days after the accident, Strickland’s husband, Wayne, filed a workers’ compensation claim for her. In the claim, Wayne stated that Janet had gone on a shopping errand for Steaks n’ Stuff and that the accident occurred during her return to work.

The issues raised by Strickland’s petition and the State Fund’s answer were tried before the Workers’ Compensation Court on March 2, 1994. Marla Handford was called as a witness by the State Fund. She identified herself as Steaks n’ Stuff’s head cook and Strickland’s supervisor on the afternoon of her accident. Handford testified that during the time prior to Strickland’s departure from work, she had complained of cramps and at least inferred a desire to locate and take an analgesic, such as Midol, that was stronger than aspirin. Additionally, Handford testified that Strickland wanted to purchase a newspaper in order to search for new office space for her husband’s business. Testimony from Tackett and an additional witness corroborated Handford’s version of events.

Strickland testified that Handford directed her to go to the Trumble Creek Hub in order to purchase a National Inquirer and a National Examiner. In support of Strickland’s version of events, an investigator, Bob Evans, testified that 10 or 11 days after the accident, he examined Strickland’s car and found within it a National Inquirer and a National Examiner. Furthermore, Wayne Strickland testified that on the day of the accident, while at the hospital, he spoke with Joe Tackett, who stated that Handford told him that she felt the accident was her fault because she had sent Strickland to the store.

Handford unequivocally denied sending Strickland anywhere. She also testified that after Strickland had decided to go to the store for personal reasons, she might have asked her to bring back something for her (Handford) to read. She gave the following testimony:

Q: [RESPONDENT’S ATTORNEY] Do you remember whether or not you sent her out?
A. No, I didn’t send her anywhere.
Q. You’re certain of that?
A. I’m certain of that.
....
Q. You don’t recall saying, Would you get me something to read?
A. No.
....
A. ... You know, we were friends and we were talking and giggling and laughing. I don’t remember if I — I said, Well, if you’re going to get something to read, I’ll have something too, you know, pick me up something too.

The Workers’ Compensation Court found Handford’s version of the events more credible that Strickland’s, in part because of the length of Strickland’s coma and the fragmentary nature of her memory concerning the day of the accident. It also found that Wayne’s testimony was not credible. The court found that Strickland was on a personal errand at the time of the accident. Accordingly, the court concluded that Strickland was not acting within the course and scope of her employment at the time of the accident, and therefore, denied Strickland’s petition for workers’ compensation benefits.

ISSUE 1

Was there substantial evidence to support the Workers’ Compensation Court’s finding that Strickland was on a personal errand at the time of her car accident?

We will review the Workers’ Compensation Court’s findings of fact to determine whether substantial evidence supports the findings. Wunderlich v. Lumbermens Mutual Casualty Co. (1995), [270 Mont. 404], 892 P.2d 563, 564 (citing Smith v. United Parcel Service (1992), 254 Mont. 71, 75, 835 P.2d 717, 720). We stress this standard of review in light of Strickland’s assertion that we have “vacillated” between the “substantial evidence” and “clearly erroneous” standards in relation to the Workers’ Compensation Court’s findings of fact. Assuming arguendo that we have vacillated in this respect, Buckentin v. State Compensation Insurance Fund (1994), 265 Mont. 518, 878 P.2d 262, makes clear that our employment of the clearly erroneous standard in Bogle v. Ownerrent Rent to Own (1994), 264 Mont. 515, 872 P.2d 800, was incorrect. Buckentin, 878 P.2d at 263.

Strickland contends that substantial evidence did not support the Workers’ Compensation Court’s finding that she was engaged in a personal errand at the time of her accident. In support of this contention, she cites physical evidence which is inconsistent with Handford’s version of events and suggests that Handford’s testimony was too equivocal to directly contradict her own evidence.

The State Fund responds that Handford’s testimony provided substantial evidence in support of the court’s critical finding and that because Handford’s and Strickland’s testimony were contradictory regarding the nature of Strickland’s errand, this Court must defer to the Workers’ Compensation Court’s resolution of that factual issue. The State Fund notes, and we agree, that this Court is not in a position to independently assess either witness credibility or the weight to be given to a witness’s testimony.

In support of its argument, the State Fund cites Wunderlich, in which we held that substantial evidence consists of more than a mere scintilla of evidence, but may be somewhat less than a preponderance of the evidence. Wunderlich, 892 P.2d at 564. By that standard, the State Fund contends that Handford’s testimony satisfied the requirement of substantial evidence. We agree, and further note that “[t]he direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact....” Section 26-1-301, MCA.

For these reasons, and based on the testimony of Marla Handford and our review of the entire record, we conclude there was substantial evidence to support the Workers’ Compensation Court’s finding that Strickland was engaged in a personal errand at the time of her motor vehicle accident.

ISSUE 2

Assuming she was on a personal errand at the time of her accident, did the Workers’ Compensation Court correctly conclude that Strickland was not acting in the course and scope of her employment?

We review the Workers’ Compensation Court’s conclusions of law to determine whether they are correct. Glaude v. State Comp. Ins. Fund (1995), [271 Mont. 136], 894 P.2d 940, 941, 52 St. Rep. 367 (citing Stordalen v. Ricci’s Food Farm (1993), 261 Mont. 256, 258, 862 P.2d 393, 394).

Strickland asserts that even if she was on a personal errand at the time of the accident, she was, nonetheless, acting within the course and scope of her employment. She bases this contention on the “personal comfort” and “rest break” doctrines described at Larson’s Workers’ Compensation Law, Vol. 1A § 21.00, at 5-5, and Vol. 1 § 15.54, at 4-116.38, 4-116.40, respectively, and our prior decision in Steffes v. 93 Leasing Co. (1978), 177 Mont. 83, 580 P.2d 450. However, whether injuries sustained while traveling to and from work are compensable is governed by statute in Montana; see § 39-71-407, MCA(1987), and State Fund v. James (1993), 257 Mont. 348,849 P.2d 187, and Steffes was decided before the effective date of that statute.

Section 39-71-407(3), MCA, provides the only circumstances under which an employee’s travel-related injuries are compensable. That section provides, in relevant part:

An employee who suffers an injury... while traveling is not covered by this chapter unless:
(a) (i) the employer furnishes the transportation or the employee receives reimbursement from the employer for costs of travel, gas, oil, or lodging as a part of the employee’s benefits or employment agreement; and
(ii) the travel is necessitated by and on behalf of the employer as an integral part or condition of the employment; or
(b) the travel is required by the employer as part of the employee’s job duties.

Strickland used her own vehicle to ran the errand. Nothing in the record establishes that Tackett reimbursed Strickland for the costs of running the errand and, as previously discussed, the Workers’ Compensation Court specifically found that Strickland’s employer did not require that she make the trip she was on at the time of her injuries. Since we have previously held that that finding was supported by substantial evidence, we conclude that Strickland was not acting within the course and scope of her employment at the time she was injured, and that the Workers’ Compensation Court, therefore, correctly concluded that her claim is not compensable.

For these reasons, we affirm the judgment of the Workers’ Compensation Court.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON and GRAY concur.

JUSTICE LEAPHART,

dissenting.

I dissent from the Court’s conclusion that there was substantial evidence to support the Workers’ Compensation Court’s finding that: “claimant left work on a personal errand to pinchase a newspaper and possibly an analgesic [Midol].” Despite Marla Handford’s testimony as to the newspaper and Midol, the record shows no physical evidence to support the position that Janet Strickland was on a personal errand. Neither Midol nor a Daily InterLake newspaper was found in Strickland’s car. If, as Handford claimed, Strickland were returning from a personal trip to the store to pinchase these items, where were they? Additional evidence refutes the assertion that Strickland was on a personal trip. Strickland had no need for Midol, she did not have her period, she was not premenstrual, and she testified that she does not suffer from menstrual cramps and has never used Midol. Since Strickland subscribed to the Daily InterLake, there was no reason for her to purchase the paper. Although this Court defers to the Workers’ Compensation Court on questions of witness credibility, the complete lack of physical evidence to support the State Fuad’s position that Strickland was on a personal errand overrides the credibility assigned to Handford by the Workers’ Compensation Court. I find that substantial evidencé does not support the Workers’ Compensation Court’s finding that Strickland was engaged in a personal errand at the time of her accident.

JUSTICE HUNT joins in the foregoing dissent of JUSTICE LEAPHART.