author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BERNARD HUGH OLSON, Defendant and Appellant.
    No. 97-077.
    Submitted on Briefs December 4, 1997.
    Decided December 23, 1997.
    54 St.Rep. 1449.
    286 Mont. 364.
    951 P.2d 571.

      For Appellant: Jeremy Gersovitz, Public Defender, Helena.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Micheál S. Wellenstein, Assistant Attorney General, Helena; Mike McGrath, County Attorney; Carolyn Clemens, Deputy County Attorney, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Bernard Olson appeals from the order and judgment of the First Judicial District Court, Lewis and Clark County, convicting him of three counts of sexual assault. We affirm.

Olson raises the following issues on appeal:

1. Did the District Court abuse its discretion when it determined J.H. was competent to testify?
2. Was there sufficient evidence to support Olson’s convictions of sexual assault?

BACKGROUND

In October 1995, Olson, then age 48, traveled to Helena, Montana, for surgery on his varicose veins and stayed at God’s Love, Inc., a homeless shelter. While there, he volunteered to arrange donated clothes stored in the basement. God’s Love staff did not tell Olson to help fit people for clothing. According to Olson, he was not supposed to be alone with children at the shelter.

W.M.’s mother is the manager of God’s Love. After school, W.M.’s mother’s husband would drop off W.M., then eight years old, at God’s Love. Because God’s Love is primarily a men’s shelter, W.M.’s mother did not permit her to enter the basement alone. However, W.M. sometimes disregarded this rule.

While driving to God’s Love one day, W.M.’s mother’s husband overheard W.M. tell her brother that she wondered if the man who touched her in a bad way would be at the shelter. W.M.’s mother learned of the conversation and asked W.M. what had happened at God’s Love. W.M. reluctantly told her mother a man had touched her in a bad way. When W.M. described him, there was no question in her mother’s mind that W.M. had described Olson. W.M.’s mother contacted the police.

At trial, W.M. recognized Olson as the man who had touched her. W.M. described two instances when he touched her breasts. Once, she was riding a Big Wheel in the basement, and Olson came up to her from behind and rubbed her breasts with both of his hands. Another time in the basement, Olson rubbed W.M.’s breasts when he gave her a dress. W.M.’s mother and her mother’s friend were in the basement picking out toys. W.M. testified she could see Olson when he gave her the dress, and the same guy who gave her the dress put his hands on her breasts and rubbed them.

W.M. spoke with Helena Police Officer Debra Drynan, who asked W.M. to draw a picture of what happened. The picture was introduced at trial. W.M. explained her picture depicted Olson coming to her from behind and touching her breasts, and her mother and her mother’s friend looking at toys. W.M. testified that after Olson rubbed her breasts, he put her on top of his shoulders and her “mom told him not to do it again,” so Olson put her down.

Olson maintained he was never alone with W.M. in the basement, and he would leave when she came down alone. Olson did not remember the Big Wheel incident. He denied sexually assaulting W.M., and when his attorney asked him how he was able to say that, Olson responded, “To me, none of the girls ... have breasts. To me, that is chest. And I do not find them as sexual objects.” When asked if he ever touched W.M. in the chest or breast area, Olson stated he may have touched her when lifting her or giving her a hug from behind.

At trial, Olson recalled helping W.M. look for a dress. When his attorney asked why W.M. would state that he rubbed her chest during the dress incident, Olson responded:

I may have given her a hug from behind, just a quick one, two, three, four second hug.... [N]othingreal heavy. Just a quick, gentle, light hug, nothing ... that I would make somebody feel uncomfortable trying to hold them.

Olson also remembered putting W.M. on his shoulders. He stated that when he picked W.M. up and put her down his hands were on the sides of her rib cage. Olson explained his back became fatigued, and he put W.M. on his shoulders to correct it.

T.R., then age eleven, and her family stayed at God’s Love. T.R.’s mother learned a man had been accused of touching a girl at God’s Love. T.R.’s mother spoke with T.R., who became quiet and scared and said a man had touched her breasts when he was showing her how to tie a tie. When T.R.’s mother questioned whether the touching could have been accidental, T.R. told her it was not. T.R.’s mother determined Olson was the man who touched T.R. because she was in the basement when Olson taught T.R. how to tie a tie.

T.R. testified that she wanted to learn how to tie a tie, and Olson showed her how. While teaching her, Olson rubbed her chest in the same manner a person would rub a cat. T.R. stated that Olson was behind her, and when he rubbed her chest, no one saw him do it.

At trial, Olson recalled the day he had shown T.R. how to tie a tie. He stood behind T.R. and put a tie around her neck and tied it. When he showed T.R. how to adjust the tie, he touched her but was not sexually aroused or gratified. When asked if he may have rubbed T.R.’s breast when tying the tie, Olson answered that a chest is on a girl and a breast is on a woman, and he considered T.R. “a girl, not a woman or even a budding woman!.]”

In late 1995, Laurie and her two daughters, T.H., then age seven, and J.H., then age five, received assistance from God’s Love. While there, they looked for clothes in the basement. One morning, Olson spoke with T.H. about a dress. Laurie heard Olson tell T.H. that he would help her try on a dress, and T.H. told Olson “no.” The dress T.H. tried on had ties that wrapped around the dress and tied in front. Laurie testified that after saying “no” to Olson, T.H. stuck close to her.

The same day, Laurie asked Catherine Cain to watch her children. When Laurie returned to God’s Love, Cain, T.H., J.H., and Olson were playing cards around a table. No other people in the room looked like Olson. Later that day, T.H. and J.H. told Laurie something had happened at God’s Love.

T.H. testified she found a dress in the basement. Aman helped her put it on even though she did not ask for help. When the man helped her, he touched her between her legs, and she described the touch as a rub.

Olson remembered the dress incident. The dress had two long ties which were touching the floor and were a safety hazard to T.H. if she stepped on them. To prevent the ties from becoming dirty and to eliminate the hazard, Olson tied a knot in front of the dress. He denied sexually assaulting T.H. He admitted that in tying the knot, he probably brushed up against T.H. but claimed his touching did not lead him to be sexually aroused or gratified.

J.H. testified she was at God’s Love sitting on a man’s lap playing cards. Aman touched her slowly twice where her legs meet at the top. She identified Olson as the man with whom she was playing cards.

At trial, Olson recalled the day to which J.H. referred. He stated J.H., T.H., Cain, and other adults were sitting at a table but claimed he was sitting elsewhere. He denied sexually assaulting J.H. He stated J.H. never sat on his lap because for months after the surgery on his varicose veins it was painful to have anything on his lap.

Officer Drynan interviewed T.H. and J.H, who described the person who had touched them. After the interview, Officer Drynan and another officer went to God’s Love. They described the suspect, and the God’s Love staff gave them two names. However, when the officers informed the staff that the suspect wore glasses and red suspenders, the staff informed them that only Olson wore red suspenders.

The State charged Olson by amended information dated March 21, 1996, with three counts of sexual assault in violation of § 45-5-502, MCA. Count I alleged Olson sexually assaulted W.M., Count II alleged Olson sexually assaulted T.R., and Count III alleged Olson sexually assaulted T.H. and J.H. Olson pleaded not guilty to all three counts.

Olson waived his right to a jury trial. Following a bench trial, the District Court found him guilty on all three counts. The court sentenced Olson to the Montana State Prison for three consecutive fifteen-year sentences, with five years suspended on each.

DISCUSSION

1. Did the District Court abuse its discretion when it determined J.H. was competent to testify?

Rule 601, M.R.Evid., provides:

(a) General rule competency. Every person is competent to be a witness except as otherwise provided in these rules.
(b) Disqualification of witnesses. A person is disqualified to be a witness if the court finds that (1) the witness is incapable of expression concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand the witness or (2) the witness is incapable of understanding the duty of a witness to tell the truth.

Witness competency is within the discretion of the trial court and will not be overturned absent an abuse of discretion. State v. Walters (1991), 247 Mont. 84, 90, 806 P.2d 497, 500. The requirements for determining competency are “capacity of expression and appreciation of the duty to tell the truth.” State v. Eiler (1988), 234 Mont. 38, 42, 762 P.2d 210, 213. A witness appreciates her duty to tell the truth if she understands the difference between the truth and a lie and understands that she has to tell the truth in court. Eiler, 762 P.2d at 214-15.

Rule 601 has no age requirement. State v. Rogers (1984), 213 Mont. 302, 307, 692 P.2d 2, 5. This Court allowed the testimony of a four-year-old victim in Walters, 806 P.2d at 500; and the testimony of a five-year-old victim in State v. Howard (1991), 247 Mont. 370, 372, 806 P.2d 1038, 1039.

Olson argues that J.H., who was six when she testified, lacked an appreciation of the duty to tell the truth. After citing an incomplete portion of the trial record, Olson suggests J.H. was not a competent witness because she could not explain what a lie was or what the truth was.

J.H. testified it was not true the prosecutor was wearing blue jeans and cowboy boots, and it was true the prosecutor was wearing a black skirt, ablackjacket, and black shoes. J.H. correctly stated the prosecutor would not be telling the truth if she stated J.H. was sitting with her father but would be telling the truth if she stated J.H. was sitting with her mother. J.H. testified while sitting in her mother’s lap.

J.H. stated she knew she had to tell the truth and had to tell what happened. She acknowledged it was a good thing to tell the truth and a bad thing to lie. J.H. disclosed to the court she knew the difference between the truth and a lie when she stated the prosecutor would be lying and not telling the truth if she stated J.H. was sitting in a grocery store.

J.H.’s testimony demonstrated she knew the difference between the truth and a lie and the importance of telling the truth in court. Her testimony allowed the court to find that she appreciated her duty to tell the truth and that she was competent to testify. We conclude the District Court did not abuse its discretion when it determined J.H. was competent to testify.

2. Was there sufficient evidence to support Olson’s convictions of sexual assault?

This Court reviews sufficiency of the evidence to determine whether, after viewing 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. Ahmed (1996), 278 Mont. 200, 212, 924 P.2d 679, 686, cert. denied (1997),_ U.S. _, 117 S.Ct. 748, 136 L.Ed.2d 686.

The credibility of witnesses and the weight to be given to their testimony are determined by the trier of fact, and disputed questions of fact and credibility will not be disturbed on appeal. Ahmed, 924 P.2d at 686. If evidence conflicts, it is within the province of the trier of fact to determine which will prevail. Ahmed, 924 P.2d at 686. In a sex offense case, a victim’s testimony does not need to be corroborated. State v. Gilpin (1988), 232 Mont. 56, 70, 756 P.2d 445, 453.

Olson was convicted of three counts of sexual assault pursuant to § 45-5-502, MCA, which provides, in relevant part:

(1) Aperson who knowingly subjects another person to any sexual contact without consent commits the offense of sexual assault.
(3) If the victim is less than 16 years old and the offender is 3 or more years older than the victim or if the offender inflicts bodily injury upon anyone in the course of committing sexual assault, the offender shall be punished by life imprisonment or by imprisonment in the state prison for a term of not less than 2 years or more than 100 years and may be fined not more than $50,000.
(5) Consent is ineffective under this section if the victim is less than 14 years old and the offender is 3 or more years older than the victim.

Section 45-2-101(65), MCA, defines sexual contact as “any touching of the sexual or other intimate parts of the person of another for the purpose of arousing or gratifying the sexual desire of either party.” This Court has construed the term “sexual contact.” See State v. Howie (1987), 228 Mont. 497, 503, 744 P.2d 156, 159 (rubbing belly and between legs); State v. Weese (1980), 189 Mont. 464, 467-68, 616 P.2d 371, 373-74 (rubbing belly and chest of prepubescent girl).

Olson argues he should not have been convicted of sexually assaulting J.H. because there was not substantial evidence that he subjected J.H. to sexual contact. He further claims there was not substantial evidence that he knowingly subjected T.H., W.M., and T.R. to sexual contact for the purpose of arousing or gratifying his sexual desire.

Relying on Howie, 744 P.2d at 159, Olson maintains there is insufficient evidence to convict him of sexual assault of J.H. because J.H.’s testimony conflicts with other trial testimony. Specifically, he argues: Cain indicated to Officer Drynan that Olson was not sitting at the table with J.H.; Cain told Officer Drynan she did not think Olson was ever alone with the girls; J.H.’s mother testified there were eight to ten people at the table with J.H.; and J.H.’s mother could not remember whether Olson was standing or sitting when she returned. We are unpersuaded by Olson’s arguments.

First, Olson misinterprets Howie. He claims this Court held “in a sexual assault case a defendant may be convicted on the basis of a complaining witness’ uncorroborated testimony if that testimony is found to be consistent with other proof legally presented at trial.”

In Howie, while discussing the case of State v. A.D.M. (1985), 216 Mont. 419, 701 P.2d 999, we mentioned the word “consistent” in conjunction with the issue of a five-year-old sexual assault victim’s competency to testify.

In State v. A.D.M., a five-year-old child was held to be competent to testify about sexual abuse by her father because her testimony was consistent with her prior reports and were supported by psychological testimony. Therefore, that child’s testimony required no corroboration. Whether a child is competent to testify is a matter left largely to the discretion of the trial court.

Howie, 744 P.2d at 159 (citations omitted).

Although we held in Howie that a sexual assault conviction may be based entirely on a victim’s uncorroborated testimony, we did not hold that the victim’s testimony must be “consistent with other proof legally presented at trial.” Howie, 744 P.2d at 159. However, in State v. Medina (1990), 245 Mont. 25, 33, 798 P.2d 1032, 1038, we cited Howie and held: “The uncorroborated testimony of the victim is sufficient to support a conviction of sexual assault provided that such testimony is consistent with other evidence.” Medina, 798 P.2d at 1038. This Court also mentioned the “consistency” requirement in Rogers, 692 P.2d at 5, and State v. D.B.S. (1985), 216 Mont. 234, 241, 700 P.2d 630, 635.

After a review oí Rogers, D.B.S., and Medina, we conclude this Court incorrectly held that a victim’s uncorroborated testimony must be consistent with other evidence to support a conviction. To the extent Rogers, D.B.S., and Medina express an opinion inconsistent with Howie and the instant case, they are overruled. We hold that a child victim’s testimony does not need to be corroborated to support a conviction of sexual assault. Whether the child’s testimony is consistent or inconsistent with other evidence offered at trial affects the weight and credibility of the testimony.

The District Court, as trier of fact, was aware of the conflict between J.H.’s testimony and other testimony concerning the events of the sexual assault. In weighing the evidence, the conflicting testimony, and witness credibility, the District Court properly exercised its discretion and chose to believe J.H.’s testimony. After viewing the evidence in a light most favorable to the prosecution, we conclude there was sufficient evidence for the District Court to find the essential elements of the crime of sexual assault of J.H. beyond a reasonable doubt.

Olson argues the State could not prove its charges beyond a reasonable doubt because T.H. was wearing clothes underneath the dress, T.H. did not indicate any discomfort to him, and T.H.’s mother was less than ten feet away when the assault occurred.

Olson’s claims are unpersuasive. Olson did not have to have direct contact with T.H.’s vaginal area underneath her clothing to have sexual contact with her. See Gilpin, 756 P.2d at 452. His rubbing T.H.’s vaginal area on the outside of her clothing was sufficient evidence to prove sexual contact. Moreover, the fact that T.H. did not immediately indicate any discomfort with Olson’s rubbing does not prove that Olson did not sexually assault her.

T.H.’s mother was nearby when Olson rubbed T.H. between her legs. This does not prove the assault did not happen. Although T.H.’s mother was in the basement when the assault occurred, she did not watch Olson the entire time. The District Court rejected Olson’s claim that the assault did not take place because Laurie was nearby. We decline to reweigh this evidence on appeal.

Olson also argues there was insufficient evidence to allow an inference that he knowingly subjected T.H. to sexual contact for the purpose of arousing or gratifying his sexual desire. T.H. testified that she found a dress among the clothes in the basement of God’s Love. Olson helped her try it on even though she did not ask for assistance. While doing so, he touched her between her legs — a touch T.H. described as a rub. Laurie testified that Olson spoke with T.H. about a dress, and when Olson told T.H. he would help her with it, T.H. responded “no.” After saying “no,” T.H. stuck close to her mother’s side.

After reviewing the evidence and the credibility of the witnesses, the trial court chose to discount Olson’s claim that he accidentally touched T.H. The court found that Olson’s rubbing T.H.’s vaginal area was for the purpose of arousing or gratifying his sexual desire. There was sufficient evidence to support Olson’s conviction of sexually assaulting T.H.

Olson argues there was Insufficient evidence to allow the District Court to find that he knowingly touched W.M.’s breasts with the purpose of arousing or gratifying his sexual desire. The evidence indicates otherwise.

W.M. explored the basement of God’s Love without permission, and while there, had been alone with Olson. W.M. admitted to her mother that a man had touched her in a bad way. W.M. testified to riding a Big Wheel when Olson came up to her from behind and rubbed her breasts. She explained that Olson rubbed her breasts when he gave her a dress. W.M. drew a picture which depicted Olson coming to her from behind and touching her breasts.

The above testimony was sufficient for the District Court to find that Olson knowingly had sexual contact with W.M., and he knowingly rubbed W.M.’s breasts for the purpose of arousing or gratifying his sexual desire.

Olson argues the evidence is insufficient to convict him of sexually assaulting T.R. because he did not have any sexual contact with her. He claims that when he showed T.R. how to tie a tie he inadvertently touched her chest and was not sexually aroused or gratified.

We are unpersuaded by Olson’s argument. In weighing the evidence and deciding witness credibility, the District Court believed T.R.’s testimony that Olson rubbed her breasts and rejected Olson’s claim that he accidentally brushed them. We reject Olson’s request to reweigh the evidence and to reexamine T.R.’s credibility.

Finally, Olson argues the State failed to prove the element of sexual contact because it did not establish that he touched T.R.’s breasts for the purpose of arousing or gratifying his sexual desire. In addressing the issue of “purpose” under the element of sexual contact, we have stated, “[i]ntent is a fact question for the jury, and it is well settled that the jury may infer intent from defendant’s acts.” State v. Riley (1995), 270 Mont. 436, 441, 893 P.2d 310, 314.

The District Court, as trier of fact, acted within its discretion when it found that Olson’s rubbing T.R.’s breasts was for the purpose of arousing or gratifying his sexual desire. The court found:

men usually do not go around rubbing the breasts or vaginal areas of small girls. Indeed, someone that would consistently rub the breasts or vaginal areas of small girls is obviously committing a sexual assault and is doing so for his own strange sexual desire.

The court correctly found that Olson’s rubbing T.R.’s breasts was for the purpose of arousing or gratifying his sexual desire.

We conclude there was sufficient evidence to support the District Court’s order finding Olson guilty of three counts of sexual assault.

Affirmed.

JUSTICES NELSON, GRAY, REGNIER and TRIEWEILER concur.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    RICHARD K. EMERY, Petitioner and Respondent, v. STATE OF MONTANA, DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES, CHILD SUPPORT ENFORCEMENT DIVISION, Respondent and Appellant.
    No. 97-242.
    Submitted on Briefs September 11, 1997.
    Decided December 23, 1997.
    54 St.Rep. 1454.
    286 Mont. 376.
    950 P.2d 764.

      For Appellant: John M. McRae, Special Assistant Attorney General, Department of Public Health and Human Services, Child Support Enforcement Division, Missoula.
    For Respondent: Richard A. Reep; Reep, Spoon & Gordon, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

Richard K. Emery (Emery) petitioned the Fourth Judicial District Court, Missoula County, for judicial review of an administrative decision and order entered by the State of Montana, Department of Public Health and Human Services, Child Support Enforcement Division (CSED), authorizing CSED to proceed with an income withholding action against Emery. The District Court entered an opinion and order denying in part and granting in part Emery’s petition. Emery subsequently moved the court to alter or amend its opinion and order on judicial review. The District Court granted Emery’s motion and, thereby, dismissed CSED’s income withholding action against Emery. CSED appeals from the judgment entered by the District Court on its order granting Emery’s motion to alter or amend its order on judicial review. We reverse and remand.

The issue on appeal is whether the District Court abused its discretion in granting Emery’s motion to alter or amend and dismissing CSED’s income withholding action against Emery.

BACKGROUND

Emery’s marriage to Deborah Keep (Keep) was dissolved in 1987. Pursuant to the dissolution decree, Keep was awarded residential custody of their three children and Emery was ordered to pay $375 per month to Keep for child support. Subsequent to the entry of the dissolution decree, Keep received public assistance under the Aid to Families with Dependent Children (AFDC) program for eleven months between December of 1987 and May of 1990. When she applied for AFDC benefits, Keep assigned her right to receive current and future child support payments during the period in which she received AFDC benefits, as well as her right to enforce child support obligations owed to her, to CSED.

Emery did not pay the full amount of child support ordered in the dissolution decree and a child support debt accrued. In an effort to collect the past-due child support, CSED notified Emery on October 21,1991, that the past-due amount would be referred to the Internal Revenue Service (IRS) for collection through interception of any federal tax refund to which Emery might be entitled for that year. This tax intercept notice also informed Emery that, if he disputed the amount determined by CSED to be past due, he could request an administrative review of that determination. Emery timely requested administrative review, but no hearing was ever held on the matter; nor did the IRS intercept any federal tax refund to which Emery may have been entitled for 1991. CSED sent a second federal tax intercept notice to Emery on September 17,1992. There is no indication in the record that Emery ever directly responded to that notice or requested an administrative review of the past-due amount claimed therein. The IRS did not intercept any federal tax refund to which Emery might have been entitled in 1992.

Meanwhile, in June of 1992, Emery and Keep entered into a stipulation modifying the child custody provisions in the 1987 dissolution decree. Pursuant to the stipulation, Emery became the primary residential custodian of the two younger children and Keep retained residential custody of the older child. The stipulation also provided that, as long as the stipulated custody arrangement remained in effect, neither party would be required to pay child support to the other and all child support arrearages existing at the time of the stipulation would be waived. The District Court adopted the stipulation by order dated June 22, 1992. Although CSED had informal notice of the proceedings resulting in the District Court’s adoption of the stipulation, it was never served with written notice and did not appear in the action or consent, in writing or otherwise, to the stipulation.

In December of 1995, CSED again initiated an attempt to collect the past-due child support it claimed against Emery, in the amount of $3,025. It served him with a Notice of Intent to Withhold (NOI) stating that CSED intended to order Emery’s employer to withhold money from Emery’s monthly wages to satisfy the amount due. Emery timely requested a hearing to contest the NOI, asserting that the child support arrearages had been waived under the 1992 stipulation, and a hearing was held on February 14, 1996, before a CSED administrative law judge (ALJ). The ALJ subsequently entered a decision and order in which it determined that Emery owed a child support debt in the amount of $3,025; that the stipulation and order entered in June of 1992, which purported to waive all child support arrearages, was void with respect to CSED because CSED did not participate; that CSED could enforce the child support obligation set in the original 1987 dissolution decree for the months in which Keep received AFDC benefits; and that CSED could proceed with the income withholding action.

Emery petitioned the District Court for judicial review of the ALJ’s decision and order. The District Court denied Emery’s petition for judicial review in part, concluding that the ALJ correctly determined that the 1992 stipulation and order “waiving” child support arrearages was void as to CSED’s claim for past-due child support accrued during the periods Keep received AFDC benefits. The court also granted Emery’s petition for judicial review in part, by remanding the case to CSED with instructions to redetermine the past-due amount owed by Emery.

Emery timely moved to alter or amend the District Court’s opinion and order on judicial review, asserting two bases on which the court should dismiss CSED’s income withholding action. The District Court granted Emery’s motion to alter or amend and dismissed CSED’s income withholding action on the basis that the delay between Emery’s 1991 request for administrative review and the February 14, 1996, hearing before the ALJ violated his rights to due process of law and the administration of justice without delay under the Montana Constitution. CSED appeals.

STANDARD OF REVIEW

We review a district court’s ruling on a motion to alter or amend to determine whether the court abused its discretion. See Estate of Nielsen v. Pardis (1994), 265 Mont. 470, 478, 878 P.2d 234, 238 (citations omitted). Here, the basis for the District Court’s grant of Emery’s motion to alter or amend was its conclusion that CSED had violated Emery’s rights to due process of law and the administration of justice without delay. We review this underlying conclusion of law to determine whether the corut’s interpretation of the law is correct. Connell v. State, Dept. of Social and Rehabilitation Services (1997), 280 Mont. 491, 494, 930 P.2d 88, 90.

DISCUSSION

Did the District Court abuse its discretion in granting Emery’s motion to alter or amend and dismissing CSED’s income withholding action against Emery?

Emery’s motion to alter or amend the District Corut’s opinion and order on judicial review was based, in part, on our decision in Connell, which he asserts is analogous to the facts in this case and compels a conclusion that CSED’s income withholding action should be dismissed. The District Court agreed with Emery’s interpretation of Connell and determined that the delay of over four years between Emery’s initial request for administrative review of the 1991 federal tax intercept notice and the February 14, 1996, hearing on the NOI violated his rights to the administration of justice without delay and due process of law as guaranteed by Article II, Sections 16 and 17 of Montana’s Constitution. CSED argues that Connell is distinguishable from the present case and, as a result, that the District Court erred in relying on Connell as authority for dismissing its income withholding action against Emery. We agree.

In Connell, CSED initiated an income withholding action against Connell for past-due child support by serving him with an NOI in February of 1990. Additionally, in June of 1990, the State Auditor’s office served Connell with notice that his 1990 state tax refund would be offset against the amount he owed to CSED. An administrative hearing was held on both the NOI and the state tax refund offset on February 15, 1991; at the conclusion of the hearing, a schedule for the submission of proposed findings of fact and conclusions of law was established. Connell, 930 P.2d at 90. Although Connell timely submitted his proposed findings of fact and conclusions of law, CSED failed to do so, either timely or at all. Nor did the hearings officer enter a final decision. Connell, 930 P.2d at 90.

Almost four years after the hearing in February of 1991, a new hearings officer took over the case and ordered the parties to appear via a telephone conference to present arguments and motions regarding the preparation of findings of fact, conclusions of law and an order in the matter. Connell, 930 P.2d at 90. Connell moved for a default judgment against CSED or, in the alternative, to dismiss the case; the hearings officer denied Connell’s motions on July 28, 1995, and ordered a rehearing of the matter. Connell petitioned for judicial review, the district court affirmed the order setting a rehearing and Connell appealed. Connell, 930 P.2d at 90.

We reversed the district court on appeal. We reiterated the long-established principle that due process requires providing a person the opportunity to be heard at a meaningful time and in a manner which comports with principles of fair play, adding that administrative proceedings must also be conducted in accordance with fundamental principles of fair play. Connell, 930 P.2d at 91 (citations omitted). We further determined that Montana’s constitutional guarantee of justice without delay was implicated when extraordinary delays occurred in legal proceedings. Connell, 930 P.2d at 91. Under the facts before us, we concluded that “failure on the part of CSED’s hearings office to render a decision after a lapse of 44 months constitutes undue delay under Montana Constitution Article II, Section 16, and violates the due process guarantees under Montana Constitution Article II, Section 17.” Connell, 930 P.2d at 92-93.

In this case, CSED served its NOI regarding the income withholding action on Emery in December of 1995. Emery requested a hearing and the hearing was held on February 14,1996. The ALJ’s decision and order was entered on July 1,1996, less than five months later. The delay between the hearing and the resulting decision in this case was minimal and did not begin to approach the magnitude of the 44-month delay in Connell. Thus, Connell is distinguishable from the present case on the facts and, as a result, it is not authority for a determination that CSED violated Emery’s constitutional rights to due process and the administration of justice without delay in the period following the hearing on the NOI.

The District Court, however, perceived the delay in this case as that occurring between the time Emery first requested a hearing on the 1991 federal tax intercept notice and the 1996 hearing on the 1995 NOI. It determined that our constitutional analysis in Connell applies to such delays between the request for, and grant of, an administrative hearing and concluded that the delay here was impermissible and unconstitutional under Connell. CSED asserts that the District Court erred in treating CSED’s child support collection efforts as one long administrative action initiated with the 1991 federal tax intercept notice and in implicitly concluding that Emery’s right to a hearing on that federal tax intercept notice continued without abeyance until a hearing was eventually granted. CSED argues that the District Court’s application of Connell based on these erroneous conclusions was incorrect.

Child support which is due under a dissolution decree and which is unpaid becomes a judgment debt similar to any other money judgment. In re Marriage of Sabo (1986), 224 Mont. 252, 254, 730 P.2d 1112, 1113 (citations omitted); In re Marriage of Brown (1994), 263 Mont. 184, 188-89, 867 P.2d 381, 383-84. Thus, Emery’s failure to pay the full amount of child support ordered in the 1987 dissolution decree during the intermittent months Keep received AFDC benefits between December of 1987 and May of 1990 resulted in a judgment debt against him. Furthermore, when Keep applied for AFDC benefits, she assigned her right to enforce that judgment debt against Emery to CSED. Pursuant to statute, CSED had ten years from the date Emery’s child support payments became past due in which to initiate collection proceedings against him on the resulting judgment debt. Section 27-2-201(3), MCA; In re Marriage of (Crittendon) Hooper (1991), 247 Mont. 322, 327, 806 P.2d 541, 544.

CSED is authorized to collect past-due child support amounts through various administrative remedies. For example, § 40-5-412, MCA, authorizes CSED to collect child support arrearages through income withholding, a remedy which CSED initiated in this case via its NOI in December of 1995. Other administrative remedies include license suspension under § 40-5-703, MCA, state debt offsets under § 17-4-105, MCA, and warrants for distraint under § 40-5-247, MCA. CSED also is authorized, by 42 U.S.C. § 664, to collect past-due child support via federal tax refund intercepts such as it initiated against Emery in 1991. Each of these administrative remedies is a separate collection remedy, with separate statutory procedural requirements, which CSED may pursue individually or simultaneously at any time within the ten-year statute of limitations period. CSED’s election to pursue one remedy does not preclude pursuit of other remedies at the same, or a later, time. See, e.g., §§ 40-5-404(1) and 40-5-247(9), MCA. Thus, contrary to the District Court’s perception, CSED’s attempts to collect child support arrearages are not one continuous collection action, but rather a series of independent and, occasionally, cumulative actions.

Article II, Section 17 of the Montana Constitution provides that “[n]o person shall be deprived of life, liberty, or property without due process of law.” Procedural due process concerns, and the concomitant right to notice and a hearing, do not arise unless there is an actual or threatened deprivation of a person’s life, liberty or property. See, e.g., State ex rel. Dept. of Health v. Reese (1993), 260 Mont. 24, 27, 858 P.2d 357, 359. When CSED initiates a collection action there is a threatened deprivation of a child support debtor’s property, usually the debtor’s money, and the right to a due process hearing arises. The statutes authorizing CSED’s various administrative collection actions recognize this due process right by providing corresponding rights to notice of the proposed action and the opportunity to request and receive a hearing. See, e.g., § 40-5-413, MCA (notice of intent to withhold income); § 40-5-414, MCA (hearing on proposed income withholding action); § 40-5-702, MCA (notice of intent to suspend license for nonpayment of child support); § 40-5-703, MCA (hearing on action to suspend license). While each individual hearing may include a review of whether the amount of child support CSED has determined to be past due is correct, the hearing itself is specifically tied to the particular administrative remedy initiated by CSED.

As discussed above, there was little delay involved in the proceedings and decision regarding CSED’s NOI in December of 1995. The administrative remedy and corresponding right to a hearing at issue here is the 1991 federal tax refund intercept action. Upon receiving CSED’s notice of the federal tax intercept action Emery timely requested a hearing, asserting that he did not owe the amount determined by CSED to be past due. A hearing was scheduled, but later was continued indefinitely. In the interim, the IRS did not intercept any federal tax refund money to which Emery was entitled in 1991 and, when no tax refund money was intercepted by the IRS, CSED discontinued action on the 1991 federal tax intercept collection attempt. Nevertheless, in October and November of 1993, Emery repeated his request for a hearing on the amount of past-due child support claimed by CSED; CSED did not grant his request. Eventually, in his motion to alter or amend the District Court’s opinion and order on judicial review, Emery contended that CSED’s failure to grant his request for a hearing on the 1991 federal tax intercept collection attempt violated his right to due process.

As stated above, the initiation of a CSED administrative collection remedy raises the threat of a deprivation of property which, in turn, raises procedural due process concerns. However, when that particular administrative collection remedy is discontinued, the threat of a property deprivation is withdrawn and the necessity for a due process hearing evaporates. Thus, when the IRS did not intercept any federal tax refund monies to which Emery was entitled in 1991 and CSED discontinued action on that collection effort, the threatened deprivation of Emery’s property no longer existed. Concomitantly, the requirement of a due process hearing on the 1991 federal tax intercept notice also no longer existed. Emery’s requests for a hearing in the fall of 1993 were not sufficient to require a hearing because the requests were not attached to any specific action or proposed action by CSED which threatened to deprive Emery of his property.

Moreover, State agencies may act only as authorized by the statutes enacted by the legislature. See Bick v. State, Dept. of Justice (1986), 224 Mont. 455, 457, 730 P.2d 418, 420. We know of no statute, or administrative rule promulgated thereunder, which authorizes CSED to grant a hearing to a child support debtor absent a proposed or pending administrative collection action by CSED, and the due process provision of the Montana Constitution, in itself, does not require CSED to grant Emery a hearing absent a threatened or actual deprivation of his life, liberty or property. See Art. II, Sec. 17, Mont. Const. There simply is no right to a hearing unless and until there is an agency action pending on which a hearing could be held.

Neither is the constitutional guarantee of administration of justice without delay, as provided in Article II, Section 16 of the Montana Constitution, implicated in this case. In Connell, Article II, Section 16 of the Montana Constitution was addressed, in conjunction with the Article II, Section 17 due process of law provision, as being a constitutional guarantee of “prompt disposition of administrative actions ....” Connell, 930 P.2d at 91. However, each administrative action initiated by CSED against Emery was disposed of promptly. Both the 1991 and 1992 federal tax intercept actions were discontinued after the IRS did not intercept any refund money to which Emery was entitled in those years. The NOI served on Emery in December of 1995 was disposed of at the administrative level less than eight months later when the ALJ’s decision and order was entered on July 1,1996. Thus, in each of these administrative actions against Emery, the Article II, Section 16 requirement of “prompt disposition” was met by CSED.

Finally, we agree with CSED’s assertion that there is no requirement in Article II, Section 16 of the Montana Constitution that a judgment creditor — in this case, CSED — must “speedily and without delay” apply for any particular remedy within any particular time. As discussed above, the period within which CSED may initiate collection actions against a child support debtor is ten years from the date the child support obligation becomes past due. Section 27-2-201(3), MCA; Marriage of Hooper, 806 P.2d at 544. CSED may initiate one, or several, collection actions at any point within that ten-year period. Once such a collection action is initiated, Article II, Section 16 requires that it be resolved without undue delay — that is, “disposed of promptly” — but there is no requirement in this constitutional provision that CSED take steps to begin a collection action at any particular time after the child support debt accrues. The practical effect of a determination that Article II, Section 16 of Montana’s Constitution requires CSED to initiate attempts to collect child support debts promptly, without undue delay and prior to the expiration of the ten-year statute of limitations would be to eliminate that limitations period.

We conclude that the District Court erred in determining that CSED violated Emery’s constitutional rights to due process of law and the administration of justice without delay by not granting his request for an administrative hearing in the period between the termination of the 1991 federal tax refund intercept action and service of the 1995 NOI. We hold, therefore, that the District Court abused its discretion in granting Emery’s motion to alter or amend and in dismissing CSED’s income withholding action against Emery.

Reversed and remanded with instructions that the District Court reinstate its original opinion and order on judicial review.

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


author: JUSTICE REGNIER

text:
    MISSOULA RURAL FIRE DISTRICT, a political subdivision of the State of Montana; ARLENE HARRIS; GERALD SAULTER and NANCY SAULTER; MARY MARGARET ZECKMAN; JAMES SCHINDLER and CATHY J. SCHINDLER; ARWOOD D. STICKNEY and ELIZABETH M. STICKNEY; VERNA LANGE; JAMES L. GLANTZ and JOANNA JOYCE GLANTZ; KRISTINE A. SOMMERVILLE and LOUIS J. SOMMERVILLE; Plaintiffs and Appellants, v. CITY OF MISSOULA, a municipal corporation, Defendant and Respondent.
    No. 97-473.
    Submitted on Briefs November 13, 1997.
    Decided December 23, 1997.
    54 St.Rep. 1459.
    286 Mont. 387.
    950 P.2d 758.

      For Appellants: M. Richard Gebhardt, Attorney at Law, Missoula.
    For Respondent: Jim Nugent, Missoula City Attorney, Missoula.
   JUSTICE REGNIER

delivered the opinion of the Court.

In February 1996, the Missoula Rural Fire District and a number of private property owners (appellants) filed an action in the District Court for the Fourth Judicial District in Missoula County against the City of Missoula to challenge the validity of three municipal annexation resolutions adopted on January 22, 1996. The parties subsequently filed cross-motions for summary judgment. On April 30, 1997, following review of the record, the District Court issued an order granting the City of Missoula’s motion for summary judgment, and denying appellants’. Appellants timely filed a motion for reconsideration, which the District Court denied by way of a June 16,1997, order. It is from these two District Court orders that appellants appeal. For the reasons stated below, we affirm.

The dispositive issue on appeal is whether the District Court erred in granting the City of Missoula’s motion for summary judgment, and correspondingly denying appellants’ cross-motion for summary judgment and motion for reconsideration.

FACTUAL AND PROCEDURAL BACKGROUND

On January 22, 1996, the City of Missoula adopted Municipal Annexation Resolutions 5816, 5817, and 5818 pursuant to which it annexed land, commonly known as the East Reserve area, located to the east of Reserve Street and west of pre-existing city limits. More specifically, Resolution 5816 annexed that portion of the East Reserve area generally bounded by Brooks Street, Paxson Street, Reserve Street, and South Avenue. Resolution 5817 incorporated within the City of Missoula’s limits neighboring land generally bounded by South Third Street West, South Avenue, Garfield Street, and Reserve Street. Finally, Resolution 5818 annexed northern land generally bounded by Mullan Road, Russell Street, South Third Street West, and Reserve Street.

Segments of Reserve Street, South Avenue, and South Third Street West, standing in isolation from any other city property, thus border portions of the land annexed by these resolutions. Indeed, in certain places, the perimeter surrounding the annexed land is only as wide as the street itself. For example, a long stretch of Reserve Street, annexed by the City of Missoula in 1993, bounds the western edge of land annexed by Resolution 5818. Relying in part upon the narrow boundaries formed by these roadways, the Missoula City Council adopted each of the three Resolutions at issue in the present case pursuant to the “wholly surround” method of annexation as provided for by § 7-2-4501, MCA.

On February 16, 1996, appellants filed suit to challenge the City of Missoula’s use of the “wholly surround” method of annexation in this case and to challenge the validity of Municipal Annexation Resolutions 5816, 5817, and 5818. By way of their complaint, appellants sought a preliminary injunction, a writ of mandate, a permanent injunction, and a declaration by the court voiding Resolutions 5816, 5817, and 5818. On March 18, 1996, the City of Missoula filed a motion for summary judgment, which, except with respect to the issue of notice, the court denied in an October 16, 1996, order. The court determined the record contained insufficient facts upon which it could premise a grant of summary judgment and, on that basis, additionally denied appellants’ request for a temporary injunction, writ of mandamus, and declaration voiding the annexation Resolutions.

The parties subsequently supplemented the record and filed cross-motions for summary judgment, agreeing that the issues presented were ripe for determination as a matter of law. On April 30,1997, the District Court issued an order granting the City of Missoula’s motion for summary judgment, and denying appellants’. Appellants accordingly filed a motion for reconsideration, which the court denied on June 16, 1997. On June 20, 1997, appellants filed their notice of appeal from these two orders by the District Court.

STANDARD OF REVIEW

This Court’s standard of review in appeals from summary judgment rulings is de novo. Treichel v. State Farm Mut. Auto. Ins. Co. (1997), 280 Mont. 443, 446, 930 P.2d 661, 663. (citing Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785). This Court reviews a summary judgment order entered pursuant to Rule 56, M.R.Civ.P., based on the same criteria applied by the district court. Treichel, 280 Mont. at 446, 930 P.2d at 663 (citing Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903).

In proving that summary judgment is appropriate:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove by more than mere denial and speculation that a genuine issue does exist. Having determined that genuine issues of material fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. [This Court] reviews the legal determinations made by the district court as to whether the court erred.

Bruner, 272 Mont. at 264-65, 900 P.2d at 903.

Moreover, the “moving party has the burden of showing a complete absence of any genuine issue as to all facts considered material in light of the substantive principles that entitle the moving party to judgment as a matter of law and all reasonable inferences are to be drawn in favor of the party opposing summary judgment.” Kolar v. Bergo (1996), 280 Mont. 262, 266, 929 P.2d 867, 869.

DISCUSSION

Did the District Court err in granting the City of Missoula’s motion for summary judgment, and correspondingly denying appellants’ cross-motion for summary judgment?

The Missoula City Counsel passed Resolutions 5816, 5817, and 5818 pursuant to § 7-2-4501, MCA, which provides for the annexation of wholly surrounded land. Specifically, § 7-2-4501, MCA, provides that:

A city may include as part of the city any platted or unplatted tract or parcel of land that is wholly surrounded by the city upon passing a resolution of intent, giving notice, and passing a resolution of annexation. Except as provided in 7-2-4502, the provisions of 7-2-4312 through 7-2-4314 apply to these resolutions and the notice requirement.

Appellants argue those portions of the East Reserve area incorporated into Missoula’s city limits by Resolutions 5816, 5817, and 5818, were not, in fact, wholly surrounded, and that the court accordingly erred in upholding the annexations. More specifically, appellants argue the District Court erred in concluding that the City of Missoula may annex a roadway as a contiguous parcel of land, and subsequently rely on that roadway to wholly surround and annex additional tracts of land. We will address each prong of the appellants’ argument in turn.

A. Street corridor annexations

As noted above, portions of Reserve Street, South Avenue, and South Third Street West, standing alone, border portions of the land annexed by Resolutions 5816, 5817, and 5818. The record indicates that, beginning in the early 1900s and ending in 1993, the City of Missoula annexed portions of Reserve Street, South Avenue, and South Third Street West as contiguous parcels of land. Appellants argue that Montana law does not authorize the annexation of a roadway as a contiguous parcel of land, and contend the District Court erred in upholding the validity of these prior annexations.

For the purposes of annexation, § 7-2-4301, MCA, defines contiguous land as:

Tracts or parcels of land proposed to be annexed to a city or town under the provisions of this part shall be deemed contiguous to such city or town even though such tracts or parcels of land may be separated from such city or town by a street or other roadway, irrigation ditch, drainage ditch, stream, river, or a strip of unplatted land too narrow or too small to be platted.

Appellants contend that a street or road, standing alone, does not constitute a tract or parcel of land as contemplated by the provisions of § 7-2-4301, MCA, and maintain that a city may not annex a street or road unless it includes additional land in the area annexed. Appellants also argue that, even if § 7-2-4301, MCA, permits the annexation of a roadway, a roadway is such a narrow strip of land that it cannot then be deemed contiguous to a city or town. In particular, appellants take issue with Resolution 5477, adopted in 1993 and pursuant to which the City of Missoula annexed a long stretch of Reserve Street. Appellants note that the only portions of Reserve Street abutting the City of Missoula were the intersection properties at South Avenue, South Third Street, and Mullan Road, and argue that Reserve Street was thus not contiguous to the City of Missoula.

In response, the City of Missoula first argues appellants lack standing to challenge the validity of the 1993 annexation of Reserve Street, as well as any other prior annexations pursuant to which the City of Missoula incorporated portions of Reserve Street, South Avenue, and South Third Street West. The City of Missoula notes that appellants did not own property in any areas annexed prior to January 22,1996, and thus argues they lack standing to challenge those prior annexations. Even if appellants have standing, the City of Missoula argues, a legitimate governmental purpose existed for the street corridor annexations which it contends were both legal and valid.

The City of Missoula first argues that appellants do not have standing to challenge the various street corridor annexations which preceded the passage of Resolutions 5816,5817, and 5818. In its order on the parties’ cross-motions for summary judgment, the District Court declined to completely address the question of appellants’ standing to challenge the street corridor annexations which occurred prior to the 1996 passage of Resolutions 5816, 5817, and 5818. In so doing, the court wrote that:

First, the City of Missoula maintains that the Missoula Rural Fire District has no standing to challenge these prior annexations since it owns no real estate in the areas annexed. While this may or may not be true, the Court does not need to reach that decision, since no one has contested the standing of the other Plaintiffs.

It is true that the City of Missoula contests the standing of the Missoula Rural Fire District to challenge Resolutions 5816,5817, and 5818, but does not contest the remaining appellants’ standing to do so. Thus, the District Court was correct in concluding that it need not address the issue of standing with respect to the challenge to these January 22, 1996, annexations. However, it is clear from the record that the City of Missoula does indeed contest the standing of each and every appellant to challenge street corridor annexations which occurred prior to January 22, 1996.

For example, in its March 13, 1996, answer, with respect to Resolution 5477 pursuant to which the City of Missoula annexed portions of Reserve Street, the City of Missoula explicitly asserts that: “Plaintiffs have no standing to challenge an August 23,1993, municipal annexation that occurred more than two and one-half years ago and did not involve property owned by plaintiffs.”

Thus, review of the record indicates the District Court was incorrect in concluding that the City of Missoula has not contested the standing of all appellants to challenge those annexations occurring prior to January 22, 1996. Although the District Court improperly declined to address this question of standing, we note that the City of Missoula has not appealed from the District Court’s order. Thus, the issue of appellants’ standing to challenge those prior annexations is not properly before this Court on appeal and we decline to address it.

Accordingly, without reaching the question of appellants’ standing, we trun first to the question of whether those street corridor annexations passed prior to January 22, 1996, including Resolution 5477, pursuant to which the City of Missoula annexed a roughly three-mile-long stretch of Reserve Street, are both legal and valid.

As noted, appellants first argue that a road, such as Reserve Street, cannot constitute a “tract or parcel” of land, as contemplated by § 7-2-4301, MCA, and that a city cannot annex a roadway without annexing additional land. Appellants argue that neither § 7-2-4301, MCA, nor any other statutory provision authorizes the City of Missoula to annex a street or roadway, and that Resolution 5477, and any other street corridor annexations, are accordingly invalid.

Although appellants apparently argue that a street simply cannot qualify as an annexable “tract or parcel” of land pursuant to § 7-2-4301, MCA, we conclude otherwise. Although not statutorily defined, a “tract” or “parcel” of land is commonly understood to mean some area of land. A street is indisputably an area of land, however narrow or long. Thus, the critical issue is not whether a street is annexable as a “tract or parcel” of land, as contemplated by § 7-2-4301, MCA, but whether a street can be considered contiguous to other land for purposes of annexation pursuant to § 7-2-4301, MCA.

Accordingly, we turn next to appellants’ argument that, even if § 7-2-4301, MCA, permits the annexation of a roadway, a roadway is such a narrow strip of land that it cannot then be deemed contiguous to a city or town for the purposes of annexation. Although appellants contest the City of Missoula’s ability to annex any roadway as contiguous land, they have narrowed the scope of their discussion to more specifically contest the validity of Resolution 5477, enacted by the City of Missoula on August 23, 1993, and pursuant to which it annexed a substantial stretch of Reserve Street.

With respect to that segment of Reserve Street annexed by Resolution 5477, appellants note that nearly a mile of platted property separates Missoula’s western boundary from Reserve Street’s eastern edge. They further note that Reserve Street’s only contiguity with the City of Missoula existed at the intersection properties at South Avenue, South Third Street, and Mullan Road, and argue that Reserve Street could thus not be considered contiguous with the City of Missoula for purposes of annexation.

In response, the City of Missoula argues such street corridor annexations are valid, particularly where enacted to serve a legitimate government purpose. The City of Missoula argues it enacted Resolution 5477, and annexed portions of South Avenue and South Third Street West, pursuant to just such a legitimate government purpose, and that those annexations are accordingly both legal and valid.

As did the District Court, we note that those courts that have approved similar street corridor annexations have done so most commonly where their respective state legislatures have not specifically disapproved of the practice, and where the annexations serve legitimate municipal or public needs. See, e.g., Taylor v. City of Chandler (Ariz. Ct. App. 1972), 498 P.2d 158, 159 (approving annexation of strip of land 510 feet wide and four and one-half miles long as contiguous); Board of County Commissioners of Jefferson County v. City and County of Denver (Colo. Sup. Ct. 1977), 566 P.2d 335, 338-39 (permitting roadway annexation because such annexations not prohibited by the legislature); Merritt v. City of Campbellsville (Ky. Ct. App. 1984), 678 S.W.2d 788, 791 (approving annexation of corridor for water mains in municipal interest); Ridings v. City of Ownsboro (Ky. Ct. App. 1964), 383 S.W.2d 510, 512 (recognizing that propriety of “a corridor annexation depends upon whether the corridor itself has some municipal value or serves some municipal purpose,” and voiding annexation of two highways where no such purpose existed); Village of Saranac Lake v. Gillispie (N.Y. App. Div. 1941), 261 A.D. 854 (concluding tract of land one and one-half miles long and ten feet wide which carried village sewer pipeline, adjoined the village, and approving its annexation). In Ridings, the court held that a corridor will only be considered contiguous where “the corridor or finger itself has a municipal value, i.e., unless it alone serves some municipal purpose. Otherwise, the use of the corridor or finger must be considered a mere subterfuge.” Ridings, 383 S.W.2d at 512.

In the present case, the City of Missoula argues it had just such a legitimate governmental purpose for annexing those portions of Reserve Street, South Avenue, and South Third Street West at issue on appeal. For instance, the City of Missoula notes the annexed streets each contained city sanitary sewer mains, and represents that the City of Missoula had street maintenance contracts for these streets.

Furthermore, as the District Court noted, that portion of Reserve Street annexed pursuant to Resolution 5477 paralleled pre-existing city limits, and connected the City at the its north and south ends. Moreover, it touched pre-existing city limits at several locations on its east and west sides.

We conclude that the existing geographical connections, in conjunction with the City of Missoula’s legitimate governmental interest in the annexations, renders the street annexations at issue in the present case valid annexations of contiguous land pursuant to § 7-2-4301, MCA.

B. Use of annexed roadway to wholly surround additional tracts of land

Appellants argue that, even if the City properly annexed the pertinent portions of Reserve Street, South Avenue, and South Third Street West, it could not subsequently rely on those annexed streets to wholly surround the additional tracts of land annexed by Resolutions 5816, 5817, and 5818. Thus, appellants argue the District Court erred in concluding Resolutions 5816, 5817, and 5818 were proper exercises of the City of Missoula’s power to annex wholly surrounded territory.

Section 7-2-4501, MCA, provides that “[a] city may include as part of the city any platted or unplatted tract or parcel of land that is wholly surrounded by the city upon passing a resolution of intent, giving notice, and passing a resolution of annexation.”

Interpreting § 7-2-4501, MCA, we have defined a “wholly surrounded” tract of land as one “where all lands on the side of the tract are within the city and where it is impossible to reach the tract without crossing such territory.” Missoula Rural Fire Dist. v. City of Missoula (1997), [283 Mont. 113], 938 P.2d 1328, 1329-30 (quoting Calvert v. City of Great Falls (1969), 154 Mont. 213, 218, 462 P.2d 182, 184).

Having upheld the District Court’s determination that the City properly annexed those portions of Reserve Street, South Avenue, and South Third Street West which form the perimeter around appellants’ land, we similarly uphold the court’s conclusion that Resolutions 5816, 5817, and 5818 “were proper exercises of the City’s power to annex wholly surrounded territory.” We conclude, as did the District Court, that “the territory in question was wholly surrounded when it was annexed” because each side of the tracts was within the City of Missoula, and because it was impossible to reach any of the tracts without crossing City territory, however narrow.

Based on the foregoing discussion, we uphold the District Court’s order granting the City of Missoula’s motion for summary judgment and denying appellants’ motion for summary judgment and motion for reconsideration.

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


author: CHIEF JUSTICE TURNAGE JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. GORDON D. SELLNER, Defendant and Appellant.
    No. 97-119.
    Submitted on Briefs December 16, 1997.
    Decided December 29, 1997.
    54 St.Rep. 1464.
    286 Mont. 397.
    951 P.2d 996.

      For Appellant: Don Vemay, Big Fork.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Pamela P. Collins, Assistant Attorney General, Helena; Deborah Kim Christopher, County Attorney; Mitchell A. Young, Deputy County Attorney, Poison.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

In proceedings before the Twentieth Judicial District Court, Lake County, Gordon D. Sellner was charged with attempted deliberate homicide and criminal endangerment. A jury found him guilty of attempted deliberate homicide, and he appeals. We affirm.

Sellner argues that his trial counsel failed to request jury instructions on attempted mitigated deliberate homicide and aggravated assault as lesser included offenses, thus violating Sellner’s right to effective assistance of counsel.

BACKGROUND

On the evening of June 27,1992, a Lake County, Montana, resident called the local sheriff’s office to report that he had been assaulted at his home. He identified John Dorin as his assailant. Missoula County Deputy Sheriff Robert Parcell was the closest officer to the scene and the first to respond to the call.

Parcell drove first to Dorin’s home and spoke with him. Dorin maintained that he had been working at Sellner’s sawmill that day and denied assaulting the victim. Parcell then went to the victim’s home, where the victim continued to maintain that it was Dorin who had assaulted him and identified Sellner as a witness. He also told Parcell that the assault had ended after his dog bit Dorin on the face. Two other law enforcement officers, also responding to the victim’s phone call, arrived at the victim’s house. The three officers returned to Dorin’s home. After questioning him further and noting a wound on his cheek consistent with a dog bite, they arrested him. They then went to Sellner’s house to get a statement from him.

Parcell did not know at that time that Sellner had not paid federal income taxes for nearly twenty years as a protest against abortion rights, or that Sellner did not have a driver’s license because he believed that he had the right to refuse to enter such contracts with the government. As a result of the positions he had taken on those and other matters, Sellner avoided contact with law enforcement.

Sellner was not home, but his wifeTold Parcell where he had gone and with whom. Because it was getting late and it was a stormy night, Parcell and the other officers decided to wait until morning to find Sellner and interview him. As they drove away, they saw the vehicle in which they believed Sellner was riding, on the road heading toward Sellner’s home. Activating his overhead lights, Parcell pulled the car over. Sellner, who was a passenger in the vehicle, jumped out of the car and fled into the woods. Parcell got out of his vehicle and shouted for Sellner to stop. On his way into the woods, Sellner turned and shot Parcell in the chest with the .41 caliber handgun which he carried with him. A brief exchange of gun fire ensued between Sellner and Parcell, ending when Sellner fired into the air before taking off through the woods toward his home.

Because Parcell was wearing a bulletproof vest, he survived the shooting. The force of the bullet created a gaping wound in his chest, however, and he was transported to the nearest hospital.

For over three years, Sellner remained at large but under surveillance. He was finally arrested in a July 1995 undercover operation at his home. During surveillance of Sellner just before his arrest, he fired a gun into the woods where law enforcement officers were stationed. That incident was the basis for the criminal endangerment charge of which the jury acquitted him.

Before trial, Sellner was referred by the court for a psychological evaluation at the Montana State Hospital. It was the opinion of the professionals at the State Hospital that Sellner did not suffer from a mental disease or defect and that he retained the ability to act with knowledge and purpose at the time of the charged conduct. Their report concluded that when Sellner shot Parcell “he felt under extreme stress and may have acted with poor judgment for that reason.” However, the fearful state of mind Sellner reported when he shot Parcell was “not the result of mental disease or defect but is better understood in the context of his political/religious environment.”

Sellner’s trial lasted a full week. He testified on his own behalf that he shot Parcell after he heard a voice in his head say, “He’s got his flack jacket on. Shoot him in the chest and you won’t hurt him.” As noted above, the jury found him not guilty of criminal endangerment but guilty of attempted deliberate homicide. Stating its intent “to provide the maximum protection for the peace officers of this State,” the court sentenced Sellner to life in prison plus ten years for use of a dangerous weapon.

Discussion

Did Sellner’s trial counsel fail to request jury instructions on attempted mitigated deliberate homicide and aggravated assault as lesser included offenses, thus violating Sellner’s right to effective assistance of counsel?

Claims of ineffective assistance of counsel are analyzed under the two-part test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. To prove ineffective assistance of counsel, the defendant must first establish that his counsel’s performance was not within the range of competence demanded of attorneys under similar circumstances. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. Second, the defendant must show that but for the inadequate performance of his counsel, the result would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

Sellner cites § 46-16-607, MCA, which provides:

(1) The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included in the offense charged.
(2) A lesser included offense instruction must be given when there is a proper request by one of the parties and the jury, based on the evidence, could be warranted in finding the defendant guilty of a lesser included offense.
(3) When a lesser included offense instruction is given, the court shall instruct the jury that it must reach a verdict on the crime charged before it may proceed to a lesser included offense. Upon request of the defendant at the settling of instructions, the court shall instruct the jury that it may consider the lesser included offense if it is unable after reasonable effort to reach a verdict on the greater offense.

Sellner contends that his trial counsel rendered ineffective assistance of counsel in failing to request jury instructions on aggravated assault and attempted mitigated deliberate homicide as lesser included offenses to attempted deliberate homicide.

Notwithstanding Sellner’s argument on appeal, the record demonstrates that Sellner’s trial counsel did request and offer instructions on attempted mitigated deliberate homicide, without objection by the State. The court gave the defense’s offered instructions on this subject as Jury Instruction Numbers 9, 10, and 11. Sellner’s argument that his trial counsel failed to offer jury instructions on attempted mitigated deliberate homicide is therefore completely baseless.

Attempted deliberate homicide requires proof that the defendant had the purpose to cause the death of another human being and acted toward purposely or knowingly causing the death of another human being. Sections 45-4-103 and 45-5-102, MCA. “Purposely” means it was the defendant’s conscious object to engage in that conduct or to cause that result. Section 45-2-101(63), MCA. A person acts knowingly with respect to a given result when the person is aware of a high probability that the result will be caused by the person’s conduct. Section 45-2-101(34), MCA.

Aggravated assault is defined at § 45-5-202(a), MCA: “A person commits the offense of aggravated assault if the person purposely or knowingly causes serious bodily injury to another.”

Sellner points out that in State v. Swan (1996), 279 Mont. 483, 928 P.2d 933, this Court interpreted § 46-16-607, MCA, to require any lesser included offense instruction to be supported by the evidence introduced at trial. He argues that the evidence in this case warranted and supported a lesser included offense instruction on aggravated assault.

In Swan, this Court ruled that there was no proof that the performance of defendant’s counsel was deficient when counsel did not request a lesser included offense instruction on simple assault in a case in which the charge was aggravated assault. Swan, 928 P.2d at 937. We noted that the permanent injuries inflicted on the victim, including scarring on his face, continuous tearing of one eye, and sagging of the eye, were uncontested. We stated that defense counsel “properly interpreted the law in determining that there was not evidence to support a jury finding of the lesser included offense of assault.” Swan, 928 P.2d at 937.

After briefing for this appeal was completed, this Court issued its opinion in State v. Castle (1997), [285 Mont. 363], 948 P.2d 688. In Castle, the Court held that assault is a lesser included offense of deliberate homicide, but that an instruction on assault must be given only when there is a basis from which a jury could rationally conclude that the defendant is guilty of the lesser, but not the greater, offense. Castle, 948 P.2d 690. In Castle, there was evidence that injuries inflicted by other persons, not the defendant, caused the victim’s death, although it was conceded that Castle caused some injuries to the victim.

In the present case, the evidence introduced at trial would not have supported the giving of an instruction on aggravated assault. Unlike the defendant in Castle, Sellner unequivocally admitted that he, not any other persons, caused the injuries to the victim. Sellner testified that when he saw the flashing lights on the three vehicles, he figured they were a hit team hired by the government to “wipe me out,” although his brother-in-law, who was driving, speculated aloud that perhaps they were being pulled over because he had been speeding. Sellner admitted that he fired the first shot, believing that he was in a life-and-death situation. Sellner testified that he was lying on the ground as he shot at the silhouette of the officer who got out of the car, and that each time the officer (Parcell) fired back at him, he shot again, aiming for the chest.

The physician who treated Parcell in the emergency room testified that had Parcell not been wearing a bulletproof vest, there was a significant risk that the large-caliber gunshot wound to his chest would have resulted in his death. Because Parcell was more than thirty miles from the nearest hospital when he was shot, the doctor testified, the bullet would have been lethal if Parcell had not been wearing the bulletproof vest. A forensics examiner testified that the bullet lodged in Parcell’s bulletproof vest was a .41 magnum soft-point bullet and that the purpose of the soft point is to cause more destruction.

The evidence demonstrated that Sellner, a veteran of the Korean Conflict, was experienced with weapons and could be expected to realize the effect of shooting a person in the chest with a .41 magnum soft-point bullet. From the evidence presented at trial, it would be irrational to conclude that Sellner’s shooting of Parcell in the chest with a large caliber soft-point bullet was done with any intent other than to cause a person’s death. Notwithstanding the argument of the dissent, Sellner’s statement that a voice told him he would not hurt Parcell if he shot him in the chest would not have supported a conviction of aggravated assault — if anything, it would have supported an acquittal. We conclude that no jury rationally could have found Sellner guilty of aggravated assault but not guilty of attempted deliberate homicide.

Counsel is not constitutionally required to present an argument which is contrary to the law and which would have been properly overruled. State v. Hildreth (1994), 267 Mont. 423, 884 P.2d 771. Because Sellner has failed to demonstrate that the evidence would have supported the giving of an aggravated assault instruction, he has not established that his counsel’s performance was outside the range of competence demanded of attorneys under similar circumstances. Therefore, we need not reach the second prong of the Strickland test, and Sellner’s claim of ineffective assistance of counsel fails.

Affirmed.

JUSTICES TRIEWEILER, REGNIER and LEAPHART concur.

JUSTICE NELSON

dissents.

While, for the reasons set forth in Justice Karla M. Gray’s dissent, I did not join the majority in State v. Castle (1997), [285 Mont. 363], 948 P.2d 688, our opinion in that case is, nevertheless, now the law of this State and, absent our overruling that decision, we are bound to follow it. Based upon Castle, I conclude that Sellner’s trial counsel rendered ineffective assistance by not offering-a lesser included offense instruction on aggravated assault.

In Castle we stated:

A defendant may be convicted only of the “greatest included offense about which there is no reasonable doubt.” Section 46-16-606, MCA. A defendant is therefore entitled to an instruction on a lesser included offense if any evidence exists in the record from which the jury could rationally find him guilty of the lesser offense and acquit of the greater. Section 46-16-607(2), MCA; State v. Fisch (1994), 266 Mont. 520, 522, 881 P.2d 626, 628. The purpose of this rule is to ensure reliability in the fact-finding process. It avoids the situation where the jury, convinced that the defendant is guilty of some crime, although not necessarily the crime charged, convicts the defendant rather than let his action go unpunished simply because the only alternative was acquittal. [State v.] Gopher [(1981), 194 Mont. 227, 231], 633 P.2d [1195,] 1197-98.

Castle, 948 P.2d at 690.

Within the context of those general principles, we then engaged in a two-step analysis. First, we determined that the offense of assault, § 45-5-201, MCA (typically charged as a misdemeanor) is a lesser included offense of deliberate homicide, § 45-5-102, MCA, a felony. We reached that conclusion by rejecting the State’s argument that we simply apply the traditional “elements” test enunciated in Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. Instead, we directed our attention to the broader definition of “included offense” contained in § 46-1-202(8), MCA. We pointed out that, while subsection 8(a) of this statute included the Blockburger test, subsection 8(c) defines “included offense” as one that “differs from the offense charged only in the respect that a less serious injury or risk to the same person, ... or a lesser kind of culpability suffices to establish its commission.” We then pointed out that the only difference between assault and deliberate homicide is that “a less serious injury ... suffices to establish’ the crime of assault.” Castle, 948 P.2d at 691 (quoting § 46-1-202(8)(c), MCA). Accordingly, under the rationale articulated in Castle, the offense of aggravated assault is clearly a lesser included offense of deliberate homicide. Like assault, the only difference between aggravated assault and deliberate homicide is that a ‘less serious injury ... suffices to establish” the crime of aggravated assault.

As the second prong of our analysis in Castle, we next focused on whether there was some basis in the evidence from which a jury could rationally conclude that the defendant was guilty of the lesser, but not the greater offense, thus necessitating the giving of the lesser-included-offense instruction. We answered that inquiry in the affirmative in Castle, and we must, likewise, do so in the case at bar. As the majority points out, there was evidence presented in the instant case that not only was Sellner acting with poor judgment under extreme stress because of his political/religious environment when he shot at Deputy Parcell, but also that, in his own mind at least, Sellner believed that the Deputy was wearing a flack jacket and that if he shot him in the chest the officer would not be hurt.

While this evidence might be inherently weak and implausible, nevertheless, this was Sellner’s theory of defense, and it was up to the jury to decide who and what to believe. Again, a defendant is entitled to an instruction on a lesser included offense if any evidence exists in the record from which the jury could rationally find him guilty of the lesser offense and acquit of the greater. Section 46-16-607(2), MCA; Castle, 948 P.2d at 690; Fisch, 881 P.2d at 628. In my view, and regardless of how I, as a judge, might evaluate this evidence, a jury of twelve lay persons could rationally have concluded that Sellner was not guilty of attempting to kill Deputy Parcell, but, rather, was only guilty of doing or attempting to do him serious bodily injury. In point of fact, in this very case, after deliberating some ten hours, the jury acquitted Sellner of one of the offenses with which he was charged-i.e., the felony offense of criminal endangerment. Accordingly, I suggest that the jury’s decision was not quite the “slam-dunk” that the majority portrays it to be and that the fact finders should have been given the opportunity to rule on the full range of Sellner’s defense theory.

Finally, in the context in which this issue is presented on appeal— ineffective assistance of counsel — I also conclude that, in failing to offer a lesser-included-offense instruction on the basis of aggravated assault, Sellner’s trial counsel (who was not the same person as appellate counsel) was not performing within the range of competence demanded of attorneys under similar circumstances and that, by reason of this inadequate performance, Sellner suffered prejudice. Strickland v. Washington (1984), 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed. 2d 674.

As to the first Strickland prong — inadequate performance — given the facts of this case and the nature of Sellner’s defense; given the black-letter law set out in §§ 46-16-607 and 46-l-202(8)(c), MCA; and given our decision in Fisch, I would hold that the performance of defendant’s trial counsel was not commensurate with the range of competence demanded of attorneys under similar circumstances. Keep in mind that Sellner admitted shooting Deputy Parcell and that, absent the jury believing he shot the officer in self-defense and, thus, totally exonerating his conduct on the basis of bis “conspiracy” theory, Sellner was, in all probability, going to be convicted of some criminal act. It appears that even Sellner did not hold out much hope for a complete acquittal on the basis of self-defense. Since he also offered an attempted mitigated deliberate homicide lesser-included-offense instruction, he obviously was not pursuing the tactic of trying to force the jury into an “all or nothing” verdict by not offering any lesser-included-offense instructions. Moreover, there was some evidence presented at trial that Sellner was only attempting to injure, rather than kill Deputy Parcell and that his state of mind was consistent with the lesser offense of aggravated assault.

Given all of these circumstances, it is hard to imagine why a competent criminal defense attorney would not have offered the lesser-included-offense instruction of aggravated assault. If there was a down side of doing so given the facts of this case, I am hard pressed to determine what it would have been. The jury could still have acquitted Sellner on the basis of justifiable use of force. However, as an alternative to attempted deliberate homicide and attempted mitigated deliberate homicide, they also could have been given the opportunity to consider convicting Sellner of aggravated assault — had the lesser-included-offense instruction been offered. Proposing such an instruction would not have been inconsistent with the evidence or with Sellner’s “try for acquittal, but also cover all other bases” trial strategy. If the judge refused to give the offered instruction, the issue would have been preserved for direct appeal; if the judge gave the instruction and the jury found Sellner guilty of a lesser offense of aggravated assault, he would have been subject to a substantially shorter prison term; and if the jury rej ected aggravated assault in favor of one of the other two greater crimes, Sellner would have been no worse off than he is now. Offering the lesser-included-offense instruction on aggravated assault was simply a “win-win” decision; and trial counsel was not performing within the range of competence demanded of attorneys under similar circumstances when he failed to do so.

As to the second prong of Strickland — prejudice—obviously, by reason of his counsel’s inadequate performance, Sellner was deprived of any chance to have the jury conclude that he was guilty of a lesser crime than attempted deliberate homicide or attempted mitigated deliberate homicide and of a concomitant opportunity to be not sentenced to life in prison for the former offense or to a 40-year prison term for the latter. Had trial counsel offered the lesser-included-offense instruction, the result of this case may have been a good deal more favorable to Sellner — he may only have been convicted of aggravated assault and subjected to a sentence of 20 years in prison or less. Hence, prejudice is clearly apparent here.

On the basis of the foregoing, I would hold that Sellner was deprived of effective assistance of counsel, and I would reverse and remand for a new trial. It is said that hard cases make bad law and result-oriented decisions. This is such a case; and we have.

I dissent.

JUSTICES GRAY and HUNT join in the foregoing dissent.