author: JUSTICE WEBER JUSTICE GRAY,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KENNETH YOTHER, Defendant and Appellant.
    No. 91-364.
    Submitted on briefs Mar. 26, 1992.
    Decided May 1, 1992.
    49 St.Rep. 387.
    253 Mont. 128.
    831 P.2d 1347.

      For Appellant: Marcey Femling Schwarz, Schwarz & Gustafson, Billings
    For Respondent: Marc Racicot, Attorney General, Helena; Patricia J. Jordan, Asst. Attorney General, Helena; Keith Haker, Custer County Attorney, Miles City.
   JUSTICE WEBER

delivered the Opinion of the Court.

The District Court for the Sixteenth Judicial District, Custer County, denied defendants motion to withdraw his plea of guilty to the offense of sexual intercourse without consent. Defendant appeals. We affirm.

The issues for our consideration are:

1. Did the District Court abuse its discretion in denying defendants motion to withdraw his plea of guilty?

2. Were defendants constitutional rights to due process violated by the denial of his motion to withdraw his plea of guilty?

The State charged defendant, Kenneth Yother, with sexual intercourse without consent, sexual assault, and incest, all committed against the defendants thirteen-year-old daughter, B.Y. The affidavit in support of the information stated:

The Court is further informed that through investigation it was determined that BY, a minor youth, was at her residence tending to other children when the Defendant, who was known to the youth, came to her residence at approximately 3:00 oclock [sic] A.M. and invited her to go for a ride in an automobile which he was intending to purchase. The minor youth, BY, accepted the invitation for the ride and went with the Defendant. The Defendant left the neighborhood and drove to a secluded area where he parked the vehicle. BY requested that he take her back to her residence. This request was ignored and the Defendant began talking about young girls that he had sexual contact with when he was younger. BY attempted to leave the vehicle with the intent to walk home but was stopped by the Defendant. He grabbed her by the hair and pulled her face down to the area of his crotch, where his pants were open, and she pulled away. The Defendant proceeded to pull her closer, pulling off her boot and one of her pants legs. The Defendant held BY down, and, according to BY, he was able to penetrate her vagina with his penis.

At the arraignment, the District Court advised the defendant of the charges against him, the maximum penalties, appointed an attorney and advised defendant of his constitutional rights. The court further informed the defendant:

You should be advised that if you make a plea agreement with the County Attorney, that that would be an agreement between you and the County Attorney and for you to enter a certain plea and for the County Attorney to make a certain recommendation to the Court. The Court is not a party to any such agreement and the Court would not be bound by such an agreement. Should the Court accept a plea of guilty pursuant to an agreement or otherwise the Court would contain [sic] the right to sentence up to maximum allowable by law. Also, you would not have a right to withdraw your guilty plea....

The defendant pled not guilty to all charges.

On January 21, 1991, the defendant, his attorney, the County Attorney, B.Y. the victim, and the mother of the victim executed the Acknowledgment of Rights and Plea Agreement. In the agreement defendant acknowledged his right to challenge the sufficiency of the information, his right to object to any evidence obtained in violation of law, his right to a speedy and public trial by jury at which he had the right to effective assistance of counsel, the right to confront and cross-examine witnesses, the right to testify, the right to call and have witnesses testify, the right not to be compelled to incriminate himself, the right to have charges proved beyond a reasonable doubt, and the right to appeal a finding of guilty. The agreement contained the maximum penalties for sexual intercourse without consent, sexual assault, and incest. He agreed that by pleading guilty he would waive all the rights above referred to. He acknowledged he had been given ample time and opportunity to discuss the case with his attorney and received the full benefit of that attorneys advise, and that he was satisfied with the services of the attorney. He also acknowledged that he was not suffering from any mental disease or disability; that he was not under the influence of alcohol, drugs or medication; and that he had not been threatened, coerced or otherwise intimidated or influenced in any way. The agreement then contained the following specific paragraphs regarding the defendant:

10. I have entered into this agreement freely and voluntarily and with full knowledge of its terms and conditions.
11.1 understand that a plea bargain agreement is an agreement between a defendant and a prosecutor that in exchange for a particular plea the prosecutor will recommend a particular sentence.
12. I -understand that the Court may not participate in the making of such an agreement nor is the Court bound by the agreement.
13.1 understand that on my plea of guilty alone I could lawfully be sentenced to the maximum punishment authorized for the offense(s) to which I plead guilty and that the recommendation of the prosecuting attorney in no way binds the Court when imposing sentence.
14.1 understand that the sentence to be imposed is within the sole discretion of the sentencing judge and that the State does not make any promise or representation as to what the sentence will be.
15.1 understand that if the Court does not impose the sentence recommended by the prosecutor, the Court is not required to allow me to withdraw my plea of guilty, (emphasis added).

The defendant then agreed to plead guilty to the offense of sexual intercourse without consent as follows:

18. Pursuant to § 46-12-204, MCA, and conditioned upon the understandings specified below, I agree to plead guilty to the offense of Sexual Intercourse Without Consent, a felony, as alleged in the Amended Information, on the folio-wing basis:
a. That the County Attorney will recommend imprisonment in the Montana State Prison for five (5) years. Three (3) years of said sentence shall be determinate and must be served in its entirety in the Montana State Prison, less credit for time spent in the Custer County Jail.
b. The Defendant shall not be entitled to early parole or conditional release.
c. While at the Montana State Prison, the Defendant must complete the Intensive Two Year Sex Offender Program.
d. Upon release from the Montana State Prison, the Defendant shall be placed on Parole for a period of two (2) years.

The agreement further provided in detail that the “prosecution” would abide by the terms of the agreement throughout all proceedings, including sentence review and parole, and that the prosecution would not attempt to alter or renegotiate the terms of the agreement. The agreement stated that the State agrees that the defendant shall be entitled to withdraw from the agreement subsequent to the entry of a guilty plea in the event the State fails to perform its obligations pursuant to the agreement.

After a hearing, the District Court accepted defendants plea of guilty to the offense of sexual intercourse without consent, resulting in the dropping of the charges of sexual assault and incest. The court ordered defendant to undergo a psychosexual evaluation pursuant to § 46-18-111, MCA.

Defendant was evaluated by Pete Bruno, a licensed professional counselor. Mr. Bruno concluded that defendant completely denied any problem with deviant sexuality, that the defendant could not be accepted into outpatient therapy, and that Bruno could not recommend him for placement in the Phase II (Phase II requires a court order) program at the prison.

Prior to sentencing, defendant moved to withdraw his guilty plea because: (1) following the plea he was ordered to complete a Sex Offender Evaluation; (2) the defendant “hope[d]” he would be allowed to withdraw his guilty plea if the Judge did not follow the County Attorneys recommendations; (3) the defendant entered his plea out of “fear” of what a jury might do; and (4) the court did not elicit sufficiently “strong evidence” of guilt by establishing a factual basis for the plea before accepting the plea pursuant to North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162.

In his response to the defendants motion to withdraw his guilty plea, the County Attorney contended that the prosecution had complied with the plea agreement and requested the court to deny defendants motion.

In considering defendants motion to withdraw his plea, the District Court stated the following regarding the sexual offender evaluation:

Defendant and his counsel certified to the Court that they had examined 46-18-101 et seq. and were aware of 46-18-111, MCA, and knew that the presentence investigation report is required to include a sex offender evaluation where the victim of a sex offense is under the age of 16. In this case, the victim was age 13 at the time of the offense, requiring the sex offender evaluation .... [I]n Custer County Criminal Cause No. 3313, this Court, as a condition of deferred imposition of sentence, previously required this same defendant to obtain a Sexual Offender Evaluation and follow through with all recommendations of said evaluation. Defendant failed to obtain the required sex offender evaluation and absconded from probation. Ultimately, Defendants probation was revoked and Defendant served six months in the Custer County Jail. The defendant certainly should have expected that this Court would definitely want him to undergo a sex offender evaluation after his second sex offense conviction. In light of the above, the Court finds Defendants suggestion patently unbelievable that he was either surprised or unfairly prejudiced by the requirement of undergoing a sex offender evaluation.

With regard to defendants claim that he “hope[d]” he would be allowed to withdraw his guilty plea if the Judge did not follow the County Attorneys recommendations, the court referred to its admonition to the defendant both at arraignment and at entry of plea, that the court would not be bound by a plea agreement. The court stated the claim was premature because defendant had not yet been sentenced.

In addressing defendants argument that he entered his plea out of “fear” of what a jury might do, the District Court stated that the question is not whether the defendant acted out of fear or hope, but is whether defendant was influenced unduly and improperly either by hope or by fear in making a plea. The court concluded that there was nothing in the procedures used which would have given the defendant such false hope or fear or unduly or improperly influenced him.

Finally, after reviewing the evidence before the court, the court concluded that it had “no doubt that the defendant ... had sexual intercourse with BY’. The District Court denied defendants motion to withdraw his guilty plea.

At the sentencing hearing, the probation officer who prepared the presentence investigation testified and recommended that the sentence be long enough for the defendant to complete the sex offender program at the prison. She testified it would take about two years to complete the program. She further testified that she was “leery of the Plea Bargain”.

The District Court sentenced defendant to a term of twenty years in the Montana State Prison with five years to be suspended. The court based its sentence on defendants past criminal history, including a prior sex offense; the fact that the court believed defendant to be a sexual offender; the presentence investigation report; the psychosexual evaluation; defendants threat to society; defendants designation as a dangerous offender for parole purposes; and the need for monitoring the defendant following his release from prison due to his psychosexual problems. The court explained its reasons for not following the plea agreement.

Following the Plea Bargain Agreement would have allowed the defendant to serve a relatively short prison term without confronting his sexual problems and without obtaining the treatment required to rehabilitate the defendant.

Following the sentencing, defendant filed a second motion to withdraw his plea of guilty stating only that the County Attorney did not oppose the motion. The District Court denied the motion stating:

Before the court is Defendants Motion to Withdraw Guilty Plea. Presumably, this Motion to Withdraw Guilty Plea is being proffered because the earlier Motion was filed before sentencing and the plea bargain provided that if the Court did not follow the recommendations of the County Attorney in the plea bargain, the County Attorney would not resist such a motion. Therefore, the Court assumes that the County Attorney does not resist the motion. In light of such non-resistance and the fact that a hearing has not been requested, the court deems the matter submitted. Based on the evidence in the record and for the reasons stated in its memorandum denying the earlier motion,

Defendants motion is hereby denied.

Defendant filed a third motion to withdraw the guilty plea on July 12, 1991, stating:

The sentence was given in conformance with the recommendation at the Sentencing Hearing of Sheila Rebich, Adult Probation Officer. This recommendation was made in violation of her expressed representations to defense counsel. Defendant Kenneth Yother relied upon those representations when he entered his plea of guilty.
Defendants reliance upon a probation officers word and belief in her word should be considered legitimate. Defendants reliance and belief in the veracity of Probation Officer Sheila Rebich gave rise to his hope that the Court would follow the Plea Agreement.

The County Attorney filed a memorandum in opposition to defendants motion to withdraw his guilty plea. In the memorandum, the County Attorney stated:

It should be noted that the Plea Agreement provided that the County Attorney would recommend imprisonment in the Montana State Prison for five (5) years with three (3) years of said sentence to have been determinate and served in its entirety, less credit for time spent in the Custer County Jail. The jail time to be served by the Defendant under the plea agreement, would be close to what the Defendant will be serving under the terms of the Courts Order of Commitment. The only real difference is an extended period of probation for the Defendant.

Defendant replied to the County Attorneys memorandum arguing that the State, by filing the memorandum, violated its agreement in regard to withdrawing the plea.

After a hearing, the District Court issued its order regarding defendants third motion to withdraw his guilty plea stating:

“The Court has not considered any briefing and the County Attorney has not argued relative to this motion pursuant to the County Attorneys acknowledged promise not to resist withdrawal of the plea if the Court did not follow the County Attorneys recommendation.

The Court notes that the probation officers proposed acquiescence to the County Attorneys recommendation was expressly conditional on the Defendant being able to complete the intensive sex offender program at the Montana State Prison with that recommended sentence. After the probation officer consulted with officials at the Montana State Prison, she found out it was doubtful whether such a sentence would be workable ....
In fact, given the severity of the offense and defendants dismal prognosis, the Court would have been hard-pressed to follow the probation officers report had she acquiesced in the County Attorneys recommendation. Defendants counsel is aware that the Court sometimes deviates from the recommendations of the probation officer. The fact that the Court usually goes along with the recommendations of the probation officer can no more give rise to an improper hope, than does the fact that the Court usually goes along with the recommendations of the County Attorney. The Defendant was thoroughly advised that the Court retained the ultimate decision and could sentence him up to the maximum provided by law....

Defendant appeals from the District Courts order denying his motion to withdraw his plea of guilty.

I

Did the District Court abuse its discretion in denying defendants motion to withdraw his plea of guilty?

Defendant contends that he relied on the representations of the probation officer that she would recommend that the District Court follow the sentencing recommendation contained in the plea bargain. He maintains that he entered his plea in reliance on such representations by the probation officer, and was therefore misled.

The State contends that the statement by the probation officer was not a part of the plea agreement. The State further points out that the probation officers representation that she would follow the plea agreement was conditioned on the defendant being accepted into the sexual offender program at the prison.

In State v. Milinovich (1991), 248 Mont. 373, 812 P.2d 338, Milinovich and the county attorney entered into a plea agreement which stated that the prosecutor would, at the time of sentencing, make no recommendation to the court relative to a term of years to be served. However, the presentence investigation prepared by the probation officer recommended that Milinovich be sentenced to 100 years in the Montana State Prison and be designated a dangerous offender for purposes of parole eligibility. Milinovich claimed that the probation officers recommendation was equivalent to a recommendation by the prosecutor, and therefore violated the plea agreement. This Court stated:

The pre-sentence investigation prepared by the parole/probation officer is authorized by § 46-18-111, MCA, and its contents are spelled out in § 46-18-112, MCA. Section 46-18-112, MCA, states:
“Whenever an investigation is required, the probation officer shall promptly inquire into the characteristics, circumstances, needs, and potentialities of the defendant; his criminal record and social history; the circumstances of the offense; the time the defendant has been in detention; and the harm to the victim, his immediate family, and the community ... The investigation shall include a physical and mental examination of the defendant when it is desirable in the opinion of the court.”
A sentencing recommendation is merely a factor that may or may not be considered by the judge, ... (Emphasis added.)

Milinovich, 812 P.2d at 340.

This Court held that the District Corut had not abused its discretion in denying Milinovich’s motion to withdraw his plea of guilty. In doing so, this Court established that the probation officers recommendation was not equivalent to a recommendation by the prosecutor.

In the present case, the County Attorney consistently followed the agreement in the making of his recommendations to the court. Following Milinovich, we conclude that the probation officers recommendation in this case is not equivalent to a recommendation by the prosecutor. We conclude that the County Attorney did not breach the plea agreement with regard to sentencing. As stated by the District Court, the record demonstrates the defendant was well informed that the court would not be bound by the sentencing recommendations contained in the plea agreement.

We hold that the District Court did not abuse its discretion in denying defendants motion to withdraw his plea of guilty.

II

Were defendants constitutional rights to due process violated by the denial of his motion to withdraw his plea of guilty?

Defendant maintains that the County Attorney breached the plea agreement by opposing the motion to withdraw the plea after assuring defense counsel that he would not do so, and in so doing robbed the guilty plea of its voluntary character.

The defendant argues that the memorandum filed by the County Attorney violated the plea agreement. In that memorandum the County Attorney pointed out that the jail time to be served under the plea agreement would be close to the jail time to be served under the courts order of commitment and that the only real difference was the extended period of probation under the order. That was not sufficient to constitute a violation of the plea agreement. We restate our conclusion that the County Attorney did not breach the plea agreement. With regard to the issue of constitutional rights, State v. Martz (1988), 233 Mont. 136, 144, 760 P.2d 65, 70, states:

If the defendant makes a voluntary and intelligent plea, he knowingly waives [certain] constitutional rights, regardless of whether or not the judge accepts the recommendation of the State.

We conclude that the defendant made a voluntary and intelligent plea and knowingly waived all of his constitutional rights.

We hold that the defendants constitutional rights to due process were not violated by the rejection of the plea bargain by the District Court.

Affirmed.

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

JUSTICE GRAY,

specially concurring.

I concur in the majority opinion. While I do not believe in advisory opinions on legal questions or, in general, the necessity or propriety of offering advice regarding the practice of law, I believe that comment on several particulars regarding this case may assist both counsel and the courts in avoiding problems in future cases.

The parties agree that part of the plea agreement in this case was a promise by the County Attorney not to object to withdrawal of the guilty plea in the event the court failed to follow the agreement. This promise was not contained in the written plea agreement, however. All promises and assurances which are part of a plea agreement should be contained in the written document in order to avoid disputes and difficulties over nondocumented parts of a plea agreement. In addition, it is my view that when the prosecution makes such a promise, it should abide by both the letter and the spirit of that promise. Under such circumstances, I believe it is the prosecutions duty to refrain from filing any brief or memorandum on the subject whatsoever. Here, the content of the prosecutions Memorandum in Opposition to Motion to Withdraw Guilty Plea did not constitute a substantive objection to the defendants motion; nor did the court rely on it. The Memorandum, however, technically did violate the letter, and certainly violated the spirit, of the promise. The Memorandum does not appear to have affected the outcome; therefore, any error was harmless.

Finally, I believe it is important to note that the defendant in this case entered an “Alford plea” to the charge of sexual intercourse without consent. As discussed in the dissenting opinion in State v. Cameron (Mont. 1992), [253 Mont. 95,] 830 P.2d 1284, 49 St.Rep. 150, Alford pleas in sex offense cases can result in a variety of unexpected consequences for defendants who, via the Alford plea, continue to assert their innocence. See also State v. Imlay (1991), 249 Mont. 82, 813 P.2d 979 [Cert. granted, 112 S.Ct. 1260,]. Some of those consequences already have arisen in this case during the pre-sentence evaluation and investigation phases. Given that the sentence imposed on this defendant includes completion of the sex offender program at the Montana State Prison, and that the program cannot be completed so long as the defendant continues to deny the conduct, more Alford plea-related consequences may be ahead for this defendant.

JUSTICE TRIEWEILER, joins in the foregoing special concurrence of JUSTICE GRAY.


source: Caselaw Access Project

author: JUSTICE HARRISON JUSTICE GRAY,

license: Public Domain

text:
    IN RE THE MARRIAGE OF STEVEN NORMAN ESCHENBACHER, Petitioner and Appellant, and MICHELE RENEE CREPEAU, Respondent and Respondent.
    No. 91-517.
    Submitted on briefs Mar. 19, 1992.
    Decided May 1, 1992.
    49 St.Rep. 393.
    253 Mont. 139.
    831 P.2d 1353.

      For Petitioner and Appellant: Clinton H. Kammerer; Kammerer Law Offices, Missoula
    For Respondent and Respondent: Bruce Barrett, ASUM Legal Services, Missoula
   JUSTICE HARRISON

delivered the Opinion of the Court.

Steven Eschenbacher (Steven) appeals the July 8, 1991, decree of dissolution of his marriage to Michele Crepeau (Michele) entered in the Fourth Judicial District Court, Missoula County, Montana, which awarded Michele $800 monthly maintenance for an eighteen month period. We affirm.

Steven and Michele began living together in June of 1990 and were married on August 18,1990. No children were born of their marriage, although Steven had two children and Michele had one child from prior relationships.

Prior to and during the marriage, Steven was a commissioned officer in the United States Army stationed at the University of Montana as an Assistant Professor of Military Science earning approximately $46,800 per year. He owned his home free of all encumbrances, he had a savings account with approximately $6,000, and virtually no debt. In addition to his home and savings, Steven brought into the marriage assets including two motor vehicles, a motorcycle, and personal belongings. Prior to the marriage, Steven supported his children and himself.

Michele was a student at the University of Montana working towards a bachelor’s degree. She received financial aid from the University to finance her education and basic living expenses. Prior to the marriage, Michele supported her son and resided in the University’s student housing complex. She also received Aid to Families with Dependent Children (AFDC). Apparently, Michele did not engage in outside employment while she attended school. Michele brought no assets to the marriage aside from her personal effects and a 1981 automobile, when Michele moved into Steven’s home, she disposed of most of her personal belongings including the car which she gave to her parents.

After Michele moved into Steven’s home, but prior to the marriage, Steven obtained a $30,000 home equity loan. Steven used the majority of the loan proceeds to purchase a new van to provide Michele with reliable transportation. Steven used the balance of the loan proceeds to pay for their wedding, reception, honeymoon trip, a holiday cruise, and home improvement materials.

During the marriage Michele assumed household duties including cleaning, preparing meals, and caring for the children while she attended school full-time. However, Steven and Michele hired domestic help to perform the weekly heavy housework. Michele also managed the household finances at Steven’s request. Additionally, Michele and her father extensively remodeled the bathrooms in the home.

On January 7, 1991, the Army ordered Steven to Saudi Arabia as a result of the Desert Storm conflict. Michele remained at home caring for the three children and the home. While in Saudi Arabia, Steven deposited his earnings into the couples joint checking account. After paying her educational expenses, Michele deposited the balance of her financial aid into the couples joint account.

On or about February 14,1991, while still in Saudi Arabia, Steven learned that Michele desired a divorce. Steven received an early return from Saudi Arabia. When he returned home on March 11, 1991, Steven discovered that Michele had moved out of his home taking the van and her personal belongings.

Steven petitioned for dissolution of marriage on March 27, 1991. In her response, Michele requested the court award her the van and monthly maintenance. Thereafter, Michele moved the court for temporary maintenance and property distribution; Steven moved the court for an expedited hearing on the petition for dissolution to accommodate his military transfer to Germany.

The court scheduled the hearing on Michele’s motion for temporary maintenance on June 17, 1991. At that time, the parties, with the court’s approval, agreed to proceed directly to a final hearing on the dissolution. Michele waived all claims to marital property except for the van and basic household items.

After hearing the evidence, the court awarded Michele $1,000 as full settlement for her interest in the marital property and $800 monthly maintenance for eighteen months. The District Court entered its final decree of dissolution on July 8, 1991, containing its findings of fact and conclusions of law. Steven appeals the District Court’s award of maintenance to Michele.

The standard of review is whether the district court’s findings of fact are clearly erroneous. In re Marriage of Eide (Mont. 1991), [250 Mont. 490,] 821 P.2d 1036, 1037, 48 St.Rep. 1054, 1055; and Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603. Recently, we adopted a three-part test to determine if a finding is clearly erroneous. Interstate Prod. Credit Assn v. DeSaye (Mont. 1991), [250 Mont. 320,] 820 P.2d 1285, 1287, 48 St.Rep. 986, 987.

First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence, we will determine if the trial court has misapprehended the effect of evidence. [Citation omitted.] Third, if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still find that “[A] finding is clearly erroneous when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.” [Citation omitted.]

Interstate Prod. Credit Assn, 820 P.2d at 1287, 48 St.Rep. at 987. Substantial evidence is defined as “evidence that a reasonable mind might accept as adequate to support a conclusion; it consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Barrett v. Asarco Inc. (1990), 245 Mont. 196, 200, 799 P.2d 1078, 1080 (citation omitted).

The only issue Steven raises on appeal is whether, considering the short duration of the marriage, the District Court erred in awarding Michele $800 monthly maintenance for eighteen months.

A court may award maintenance after the marital property has been equitably divided pursuant to § 40-4-202, MCA, and the court has properly applied the criteria of § 40-4-203, MCA, which provides:

(1) In a proceeding for dissolution of marriage or legal separation or a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
(a) lacks sufficient property to provide for his reasonable needs; and
(b) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant facts including:
(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(c) the standard of living established dining the marriage;
(d) the duration of the marriage;
(e) the age and the physical and emotional condition of the spouse seeking maintenance; and
(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.

In the instant case, the District Court found that Michele required maintenance because she did not receive sufficient income-producing property to support herself and that she could not obtain appropriate employment to support herself due to her lack of training and sufficient education. After a thorough review of the record, we agree.

For property to be “sufficient property” under § 40-4-203(l)(a), MCA, it must be income-producing rather than income-consuming property. In re Marriage of Van Atta (Mont. 1992), [252 Mont. 310,] 829 P.2d 3, 5, 49 St.Rep. 264, 265. Due to the short duration of the marriage in the instant case, the couple obtained few marital assets. As a result, the court apparently divided the marital property pursuant to § 40-4-202, MCA, and awarded Michele $1,000. Although these funds are income-producing, the court awarded Michele the $1,000 cash award to replace the basic household items she disposed of prior to and during the marriage. We hold that sufficient evidence exists supporting the District Court’s finding that Michele did not receive sufficient income-producing property to provide for her reasonable needs.

The court also found sufficient evidence to conclude that the second criteria for awarding maintenance, § 40-4-203(l)(b), MCA, was satisfied. The court concluded that Michele was unable to support herself through appropriate employment because she lacked sufficient education and training.

Generally, an award of maintenance is appropriate if the spouse seeking maintenance is unable to obtain appropriate employment with relation to the standard of living achieved by the parties during the marriage. In re Marriage of Skinner (1989), 240 Mont. 299, 306, 783 P.2d 1350, 1354. In this case, Michele enjoyed a middle-class standard of living during her marriage to Steven. Michele contends that the District Court did not err in awarding her maintenance because she is unable to obtain appropriate employment to achieve the standard of living she enjoyed during the marriage until she finishes school. Michele stated that her standard of living has decreased significantly since the separation.

The only evidence concerning Michele’s employability included the uncontested facts that she was to begin working within a few days after the conclusion of the dissolution proceeding. The record indicates that Michele obtained a clerical position earning $5.50 per hour. This position was strictly temporary in nature in that it was in the form of a work study financial aid grant. The University awarded Michele a maximum of $1,800 that she could earn dining the summer; once she earned $1,800 her position would terminate. Based on the foregoing, we hold that substantial evidence exists supporting the District Court’s finding that Michele was unable to support herself through appropriate employment.

The record indicates that Michele satisfied the criteria of § 40-4-203(1), MCA, supporting her eligibility for maintenance. Therefore, the court engaged in step two of the analysis, by applying § 40-4-203(2), MCA, to determine the appropriate duration and amount of monthly maintenance.

Steven argues that Michele is not entitled to $800 monthly maintenance for eighteen months under § 40-4-203(2), MCA, because she has financial resources to meet her needs through the use of financial aid and AFDC, that she can obtain appropriate employment, and that she should be returned to the status she enjoyed prior to the marriage.

The record indicates that Michele’s monthly expenses would be at least $600. Before awarding Michele maintenance, the court considered the factors in § 40-4-203(2), MCA, including the duration of the marriage, the middle-class standard of living enjoyed during the marriage, Michele’s contributions to family harmony, and Steven’s ability to pay maintenance while meeting his own needs. We hold that substantial evidence exists supporting the District Court’s findings regarding duration and amount of maintenance.

In conclusion, the District Court did not misapprehend the effect of the evidence and a review of the record does not leave us with a definite and firm conviction that a mistake has been committed. The District Court’s findings were not clearly erroneous, therefore, the judgment is affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES TRIEWEILER and WEBER concur.

JUSTICE GRAY,

dissenting.

I respectfully dissent from the opinion of the majority. In applying the three-part test articulated in Interstate Prod. Credit Assn, my review of the record in this case leaves me with a definite and firm conviction that a mistake has been committed. I would reverse the award of maintenance.

Steven and Michele had been married for less than one year when the final decree of dissolution was entered. They lived together as a married couple for less than five fall months, at which time Steven was ordered to Saudi Arabia as a result of the Desert Storm conflict. Approximately five weeks later, Steven learned that Michele desired a divorce.

Michele was attending the University before the marriage; she received financial aid to finance her education and basic living expenses. She and her son lived in University housing and she received AFDC. She was not employed. Steven brought substantial assets into the marriage, including his $46,800 annual salary, a home free of encumbrances, and a savings account. He had no debt.

Shortly before the marriage, after Michele had moved into Steven’s home, Steven obtained a $30,000 home equity loan solely in his name. The loan proceeds were used for a new van for Michele, the wedding and reception, a honeymoon trip, a holiday cruise, and home improvement materials.

By the time the brief marriage ended, Steven’s net worth had decreased significantly due to the substantial home equity loan, depletion of his $5,600 savings account, and $6,000 in credit card debt. Michele’s net worth remained much as it was prior to the marriage.

The majority affirms the District Court’s award of $800 per month maintenance for eighteen months, concluding that the requirements of § 40-4-203(l)(a) and (b), MCA, were met and that the District Court properly applied the § 40-4-203(2), MCA, factors. While I would have applauded voluntary payments by Steven in that amount and for that time, so as to enable Michele to complete her degree under improved financial conditions, I cannot agree that it is an appropriate legal result under the facts of this case.

The majority is correct that “[gjenerally, an award of maintenance is appropriate if the spouse seeking maintenance is unable to obtain appropriate employment with relation to the standard of living achieved by the parties during the marriage.” (Emphasis added.) It is my view, however, that this case must be distinguished from the “general rule” cases. In the case at bar, the parties were married for ten months and resided together for only five of those months. While it is true that Michele presently cannot obtain employment sufficient to support herself at the standard of living she enjoyed during the short marriage, it also is true that she did not contribute to attaining the standard of living into which she married and which she enjoyed for less than one year. In addition, she was a student and was not engaged in outside employment before the marriage. Therefore, nothing related in any way to the short marriage hindered her ability to compete successfully in the job market after the marriage. Michele is twenty-eight years old and in good health. These factors indicate that, although she remains in college obtaining additional training, she is not unemployable. In short, while Michele is to be commended for her commitment to obtaining a university degree, Steven should not be required under circumstances such as these to contribute to her efforts in that regard.

In addition, when determining whether the spouse qualifies for maintenance due to a lack of sufficient property to provide for his or her reasonable needs, the district court is required to consider all financial resources available to the spouse seeking maintenance. In re Marriage of Feisthamel (1987), 221 Mont. 321, 326, 739 P.2d 474, 478. Here, the record demonstrates that prior to the marriage, Michele’s financial resources were primarily in the form of financial aid and AFDC. The undisputed facts indicate that Michele continues to be eligible for financial aid while she remains in school. Additionally, the record indicates that she plans to remain in school. If Michele takes advantage of the available aid, it is as sufficient to provide for her reasonable needs as it was prior to the short marriage. Thus, an award of maintenance in this case is inappropriate.

Furthermore, under these facts, the evidence presented to the District Court does not support a conclusion under § 40-4-203(l)(b), MCA, that Michele was unable to obtain appropriate employment to support herself. The evidence concerning Michele’s employability included the uncontested fact that she was to begin working within a few days after the conclusion of the dissolution proceeding under a work study grant which formed only part of her overall financial aid award from the University. This evidence of a clerical position paying $5.50 per hour indicates that Michele has skills necessary to secure appropriate employment to support herself. Employment in such positions at similar earnings is not uncommon for college students.

Finally, it appears to me that the District Court’s application of the § 40-4-203(2), MCA, factors was limited almost entirely to consideration of the middle-class standard of living enjoyed during the marriage and Steven’s ability to pay. As to the former, and as discussed above, it is my view that the District Court and the majority of this Court improperly fail to weigh the very brief duration of this marriage into the equation of this case. As to the latter, it is as clear to me as it apparently is to the majority, and was to the District Court, that Steven “can afford” to pay the awarded maintenance and that, as a result, Michele can be helped to obtain her degree. I believe, however, that it is legally incorrect to mandate such a result under the facts of this case. Michele’s ability to support herself through appropriate employment was neither hindered nor enhanced by reason of the parties unfortunately brief marriage. To require Steven, already in significantly less favorable financial circumstances as a result of the marriage, to put Michele in a significantly improved financial situation leaves me with a definite and firm conviction that a mistake has been committed. I would reverse.


author: JUSTICE WEBER JUSTICE HUNT,

text:
    STEPHEN P. WEBER, Plaintiff and Appellant, v. STATE OF MONTANA, Defendant, Respondent and Cross-Appellant.
    No. 90-611.
    Submitted on briefs Feb. 13, 1992.
    Decided May 5, 1992.
    49 St.Rep. 397.
    253 Mont. 148.
    831 P.2d 1359.

      For Plaintiff and Appellant: Erik B. Thueson, Thueson Law Office, Helena.

      For Respondent: Maxon R. Davis, Cure, Borer & Davis, Great Falls; Bill Gianoulias, Tort Claims Division, Helena.
   JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiff, Stephen P. Weber, brought a wrongful discharge action against the State of Montana before the First Judicial District Court, Lewis and Clark County, Montana. Ajury found in favor of Mr. Weber and awarded him $33,230 in damages. Mr. Weber appeals. The State of Montana cross-appeals. We affirm.

The issues raised for review by the parties are restated as follows:

1. Did the District Court abuse its discretion in admitting certain evidence at trial?

2. Did the District Court incorrectly instruct the jury that damages under § 39-2-905(1), MCA, are discretionary?

3. Should the District Court award Mr. Weber costs and attorney fees?

4. Was the jury’s verdict in favor of Mr. Weber supported by substantial evidence?

In September 1988, Mr. Weber resigned from his position as assistant manager of the Tort Claims Division for the State of Montana. At the time of his resignation, Mr. Weber had been employed by the State for 16 years and was earning approximately $30,000 per year. In September 1989, he brought this wrongful discharge action contending he was constructively discharged by intolerable working conditions created by his superiors. Mr. Weber claims he was harassed, treated unfairly and finally demoted for his actions involving a fraudulent claim submitted to his department by the Department of Administration’s Publications and Graphics Division (P & G).

Evidence presented by Mr. Weber indicated that in August 1986, he received a property damage claim for $111,000 from Gary Wolf, administrator of P & G. Mr. Weber presented extensive testimony that this claim submitted by P & G was inflated. In fact, Weber assessed the property damage at under $6,000. Further, evidence indicated that contrary to § 2-17-105, MCA, P & G was using the insurance proceeds to purchase office furniture and equipment instead of replacing the property allegedly destroyed by the flood. As a result, Mr. Weber testified that he refused to pay P & G’s claims.

In November 1986, Mr. Wolf and P & G bureau chief, Don Brieby, met with Mr. Weber’s superior, John Maynard (Maynard), regarding Mr. Weber’s refusal to pay the claim. In response to this meeting, Mr. Weber testified that his superiors ordered him to pay the claims submitted by P & G.

Subsequently, Mr. Weber informed the legislative auditor of the exorbitant claim. The auditor determined P & G improperly purchased office equipment and furniture with the insurance proceeds; however, the auditor did not investigate Mr. Weber’s complaint regarding the inflated claim until after this trial.

After the P & G claim controversy, Mr. Weber testified that working conditions became “strained.” Mr. Weber testified his superiors began accusing him of making mistakes on office matters in which he had no involvement. Mr. Weber further testified they treated him like he did not exist, would not speak to him and made him feel unimportant. Finally, in June 1988, Mr. Maynard informed Mr. Weber that as a result of reclassification, his position would most likely be downgraded. In September 1988, after receiving the news that he would be demoted immediately, Mr. Weber tendered his resignation.

This case was submitted to a jury. Mr. Weber claimed the State, through its supervising personnel, constructively discharged him from employment by causing him to leave his job. The State denied that Mr. Weber was forced to leave his job. In the alternative, the State claimed that even if Mr. Weber was wrongfully discharged, he did not take reasonable steps to minimize his damages. The jury rendered a verdict in favor of Mr. Weber for $33,230. As a result, Mr. Weber submitted post-trial motions requesting a new trial on the issue of damages, and an award of attorney fees and costs from the court. The District Court denied both motions. From this order Mr. Weber appeals. The State cross-appeals, claiming the jury verdict was not supported by substantial evidence.

The appellant in this action is not related to the author of this opinion.

I

Did the District Court abuse its discretion in admitting certain evidence at trial?

Admitting or refusing evidence is within the discretion of the trial court. Morning Star Enterprises, Inc. v. R.H. Grover, Inc. (1991), 247 Mont. 105, 110, 805 P.2d 553, 556. Thus, in order to overturn an evidentiary ruling Mr. Weber must show an abuse of discretion.

Mr. Weber claims the District Court abused its discretion by admitting four specific segments of testimony and one exhibit. These include: Mr. Maynard’s job performance appraisal and certain testimony regarding Mr. Weber’s job performance; prejudicial testimony raising the Inference that Mr. Weber’s claim was frivolous; and testimony appealing to the self-interest of the jurors as taxpayers.

Mr. Weber objects to derogatory statements and exhibits involving his job performance. First he claims that this evidence was irrelevant where the State never placed his job performance at issue in their answer or the pretrial brief. We disagree. Mr. Weber introduced evidence of his diligent work habits during the trial. Thus, we conclude the District Court did not abuse its discretion in allowing the State to submit evidence for the purpose of rebutting that testimony.

Next, Mr. Weber claims the derogatory testimony regarding his job performance is improper character evidence under Rule 404, M.R.Evid. We disagree. The evidence regarding Mr. Weber’s job performance is not character evidence excluded by Rule 404, M.R.Evid. We conclude it is admissible evidence of the plaintiff’s conduct.

Further, Mr. Weber claims the testimony and evidence regarding his job performance was self serving, remote, opinion testimony of a lay witness, and a prior consistent statement disallowed under Rule 801(d)(1), M.R.Evid. Again, Mr. Weber has failed persuade this Court that the District Court abused its discretion by admitting this evidence. We conclude the District Court did not abuse its discretion in allowing testimony and a job performance appraisal which criticized Mr. Weber’s job performance.

Next, Mr. Weber contends the court abused its discretion in admitting testimony from the director of the Department of Administration, and Mr. Maynard, administrator of the Tort Claims Division. Mr. Weber contends this testimony led to the inference that his claim was frivolous and incorrectly appealed to the self-interest of the jurors as taxpayers. After reviewing the record, we conclude Mr. Weber has incorrectly described the testimony, and has failed to demonstrate the lower court abused its discretion in admitting the testimony.

We hold the District Court did not abuse its discretion in admitting certain evidence and properly denied plaintiff’s motion for a new trial on this issue.

II

Did the District Court incorrectly instruct the jury that damages under § 39-2-905(1), MCA, are discretionary?

Mr. Weber objects to the District Court’s Jury Instruction No. 17 which reiterated the language in § 39-2-905(1), MCA, instructing that:

If an employer has committed a wrongful discharge, the employee may be awarded lost wages and hinge benefits for a period not to exceed 4 years horn the date of discharge, together with interest thereon. Interim earnings, including amounts the employee could have earned with reasonable diligence, must be deducted horn the amount awarded for lost wages. (Emphasis added.)

Mr. Weber contends that damages under § 39-2-905(1), MCA, are mandatory and that he is entitled to four years compensation including benefits and interest. He argues that under Bascom v. Carpenter (1952), 126 Mont. 129, 136, 246 P.2d 223, 226, and Lamb v. Missoula Imports (1988), 230 Mont. 183, 187-188, 748 P.2d 965, 968, the damages of § 39-2-905(1), MCA, are mandatory. We disagree. Both Bascom and Lamb are inapposite this decision. In Bascom this Court required the lower court to provide notice to a natural parent prior to the termination of their parental rights, despite discretionary language in the statute. We conclude there is no merit to Mr. Weber’s contention that he is similarly situated to the father in Bascom who lost his parental rights without notice. Next, Lamb interpreted a workers’ compensation statute which provided that the court “may” award attorney fees to successful claimants in workers’ compensation actions. In view of the statutory differences between the Workers’ Compensation Act and the Wrongful Discharge From Employment Act; Lamb is not controlling authority for a claim under the Wrongful Discharge Act. We conclude § 39-2-905(1), MCA, places the discretion in the trier of fact to determine the amount of lost wages and benefits not to exceed four years from date of discharge.

Mr. Weber next argues that the jury’s award of damages is not supported by the evidence. We will not reweigh the evidence presented by the parties, or disturb a jury verdict which is supported by substantial evidence. Sizemore v. Montana Power Co. (1990), 246 Mont. 37, 48, 803 P.2d 629, 636. Mr. Weber has failed to demonstrate that the award of $33,230 is not supported by the evidence. We conclude there is substantial evidence to support the verdict.

We hold that the amount of damages recoverable under § 39-2-905(1), MCA, is discretionary; and that the District Court correctly instructed the jury on the measure of such damages. The District Court properly denied plaintiff’s motion for a new trial on this issue.

Ill

Should the District Court award Mr. Weber costs and attorney fees?

First, Mr. Weber claims he is entitled to attorney fees and costs under State v. Frank (1987), 226 Mont. 283, 735 P.2d 290. This Court held that in extreme cases, if justice and equity required, the District Court had the discretion to award costs and attorney fees. Frank, 226 Mont. at 293, 735 P.2d at 297. In Frank, the District Court order the Department of Revenue to pay costs and attorney fees when the Department executed upon Mr. Frank’s wages in violation of a prior agreement. Mr. Frank was forced to file an action in district court to set aside the Department’s improper levy of execution.

In this case, Mr. Weber failed to convince the trial court that the State’s conduct was so extreme as to entitle him to costs and attorney fees. Further, he has failed to provide evidence that the District Court abused its discretion in reaching that determination. Thus, we conclude the District Court did not abuse its discretion in determining that equity and justice did not require the award of costs and attorney fees in this action.

Next, Mr. Weber points to the private attorney general exception which allows the prevailing party to receive an award of costs and attorney fees when the government fails to enforce interests significant to its citizens. Matter of Dearborn Drainage Area (1989), 240 Mont. 39, 43, 782 P.2d 898, 900.

Here, Mr. Weber focuses upon the egregious conduct surrounding the inflated P & G claim, rather than focusing upon the conduct which led to his wrongful termination. While we do not wish to indicate any approval of conduct on the part of P & G, which may be classed as fraudulent, the present action was brought to recover losses for Mr. Weber’s wrongful discharge, and not as a vehicle to reimburse the State for fraudulent claims. We conclude the private attorney general theory is not applicable to this action.

Finally, Mr. Weber contends he should receive attorney fees and costs under § 25-10-711, MCA, which provides in part:

(1) In any civil action brought... against the state ... the opposing party ... is entitled to the costs ... and reasonable attorney’s fees as determined by the court if:
(a) he prevails against the state ...; and
(b) the court finds that the... defense of the state... was frivolous or pursued in bad faith.

It is clear Mr. Weber did prevail against the State. Next, we must determine if the District Court was clearly erroneous when it concluded that the defense of the State was neither frivolous nor pursued in bad faith. Rule 52(a) M.R.Civ.P.

Mr. Weber contends the State’s defense was frivolous and pursued in bad faith where the State maintained the legitimacy of P & G’s insurance claim during the trial; represented that government’s improprieties were harmless; and attacked Mr. Weber’s job performance. The plaintiff again misses the mark by emphasizing the propriety of the P & G claim, instead of analyzing the State’s defense. Although, Gary Wolf’s testimony rebutted the plaintiff’s evidence that P & G submitted an inflated claim, the State steadfastly denied that the inflated claim was connected to the interaction between Mr. Weber and his superiors or his position downgrade which ultimately led to Mr. Weber’s constructive discharge. In addressing Mr. Weber’s concerns regarding the legitimacy of the P & G claim, the District Court found:

“... there was absolutely no evidence that any of Plaintiff’s supervisors knew of the fraud aspects of the flood claim until after Plaintiff had quit his job and after he had filed his lawsuit. Initially, Plaintiff’s reluctance to pay the flood claim came on his interpretation of a statute. He felt that the statute would not authorize purchase of equipment not like that destroyed by the flood. It was only during discovery in 1990 that it came to light that perhaps someone over at publications and graphics had inflated the claim ... there is absolutely no evidence that the people who were responsible for Plaintiff’s termination had any inkling of these apparently ■unethical activities.

Next, the plaintiff contends the State defended in bad faith by representing that the inflated claim was harmless. Mr. Weber mischaracterizes the State’s defense. The District Court found:

... the State did not want to talk about the flood case at all and presented a motion in limine to exclude any evidence in that regard. It was the Plaintiff that brought up the flood time and time and time again, making it the central issue in their case.

The record supports the conclusion of the District Court.

We have previously upheld the relevance of Mr. Weber’s job performance where he had placed his performance at issue in this action.

The District Court pointed out that Mr. Weber originally valued his case at $500,000 in June 1989, and later offered to settle for $170,000 in January 1990. Following trial in this case, the jury evaluated Mr. Weber’s claim at $33,230. As pointed out by the District Court, these figures demonstrate that the State’s defense was not frivolous.

The District Court properly considered the issues raised by Mr. Weber. We conclude that the District Court was not clearly erroneous in determining that the State defended in good faith.

We conclude the District Court properly addressed the issues raised by the plaintiff, and did not err in denying Mr. Weber an award of costs and attorney fees.

IV

Was the jury’s verdict in favor of Mr. Weber supported by substantial evidence?

This Court takes a very limited role in reviewing jury verdicts. As previously stated, we do not retry the issues on appeal, but review the evidence in the light most favorable to the prevailing party and then determine whether substantial evidence supports the jury verdict. Sizemore, 246 Mont. at 48, 803 P.2d at 636. The State contends the evidence presented does not support the jury’s finding of wrongful discharge. We disagree. In reviewing the evidence in the light most favorable to Mr. Weber, we hold substantial evidence supports the jury verdict.

Affirm.

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

JUSTICE HUNT,

dissenting.

I dissent. I would reverse and remand this case for a new trial on the question of damages, based on the jury instruction given by the District Court regarding damages. The instruction was based on § 39-2-905, MCA, which provides in part that:

(1) If an employer has committed a wrongful discharge, the employee may be awarded lost wages and fringe benefits for a period not to exceed 4 years from the date of discharge, together with interest thereon. Interim earnings, including amounts the employee could have earned with reasonable diligence, must be deducted from the amount awarded for lost wages.

This Court has developed a rule for construing statutes such as the one in question here. We have repeatedly stated that:

It is a general principle in statutory construction that, where the word “may” is used in conferring power upon an officer, court, or tribunal, and the public or a third person has an interest in the exercise of power, then the exercise of the power becomes imperative. (Citations omitted.)

Lamb v. Missoula Imports (1988), 230 Mont. 183, 188, 748 P.2d 965, 968 (quoting Adoption of Bascom (1952), 126 Mont. 129, 136, 246 P.2d 223, 226).

The instruction directing the jury that the “employee may be awarded” the specified damages was misleading and incorrect. The jury, in its discretion, must determine whether there has been a wrongful discharge. If the jury determines there has been a wrongful discharge, the jury must then determine the damages according to § 39-2-905, MCA. In determining the amount of damages in these cases, the jury has some discretion, especially concerning the question of amounts the employee could have earned with reasonable diligence after the wrongful discharge from employment. However, once the jury is satisfied that damages in a certain amount have been proven, an award in that amount is mandatory. In the present case, the instruction given the jury concerning damages may be fairly interpreted as an instruction to the jury that they had the discretion to award or withhold damages, even if they were proven.

The jury found that appellant had been wrongfully discharged from his employment. There is no way of determining how the damages in this case were calculated, but judging from the award of damages, it is entirely possible the jury believed that it was within their discretion to award or withhold damages even if they were proven.

Additionally, appellant is entitled to attorney fees at the District Court level and on appeal under the private attorney general doctrine. The private attorney general doctrine is “utilized when the government, for some reason, fails to properly enforce interests which are significant to its citizens” and a private citizen is forced to bring suit to enforce these interests and prevails. Matter of Dearborn Drainage Area (1989), 240 Mont. 39, 43, 782 P.2d 898, 900. The fact that the appellant stood to gain personally from the litigation does not diminish the benefits received by the public. In this case, the appellant alleged that he was wrongfully discharged from his employment because he attempted to expose fraud and waste in state government. A jury determined that he had in fact been wrongfully terminated. Fraud and waste in government are clearly matters of eminent importance and interest to the citizens of this State and the private attorney general doctrine should be applied in this case.

JUSTICE TRIEWEILER concurs in the foregoing dissent of JUSTICE HUNT.


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DONALD E. BRINER, Defendant and Appellant.
    No. 91-091.
    Submitted on briefs Apr. 3, 1992.
    Decided May 5, 1992.
    49 St.Rep. 402.
    253 Mont. 158.
    831 P.2d 1365.

      For Appellant: Richard J. Carstensen, Billings.
    For Respondent: Marc Racicot, Attorney General; Elizabeth L. Griffing, Assistant Attorney General; Dennis Paxinos, County Attorney; Terence M. Swift, Deputy County Attorney, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Donald Briner appeals his conviction on two counts of felony sale of dangerous drugs after a jury trial in the Thirteenth Judicial District Court, Yellowstone County. We affirm.

The issues are:

1. Did the District Court err in refusing to allow the defense to inspect Turner’s statement to the police at the pretrial hearing?

2. Did the court err in denying Briner’s request for a continuance when witness Turner was granted immunity?

3. Were the two packets of methamphetamine improperly admitted into evidence because there was no proof of chain of custody?

4. Did the court err in instructing the jury on the mental states of “knowingly” and “purposely”?

5. Does outrageous government misconduct bar this conviction?

6. Was the methamphetamine here involved properly designated a Schedule II dangerous drug?

In December 1988, Hal Turner, who described himself as having previously led a “life of crime” and who had been on parole since 1987, offered to become a confidential informant for law enforcement in Yellowstone County, Montana. Turner became an informant because he “wanted to change [his] life and [he] figured that was the best way to do it, doing something good finally.”

Turner began working as an informant for Yellowstone County law enforcement in January 1989 and continued through September or October 1989. He also began working for the federal Drug Enforcement Administration at approximately the same time. The major drug bust operation in which Turner was involved was dubbed “Operation Snowball.” Approximately seventy drug cases were involved in Operation Snowball, and Turner was involved in as many as forty to fifty of them. He was considered an extremely reliable informant.

Prior to working as an informant, Turner made a statement to the Drug Enforcement Division of Yellowstone County describing his acquaintances, the people from whom he had purchased drugs, and the people from whom he could purchase drugs in the future. Donald Briner was mentioned in this statement.

On July 28,1989, the police initiated a drug purchase from Donald Briner. Two Yellowstone County deputy sheriffs met informant Turner at a parking lot in Billings. They searched Turner and his car for contraband, put a transmitter on him, and gave him some silver coins with which to make the purchase.

Turner was instructed to go to a local bar to attempt to make contact with Briner. He went to the bar but did not find Briner there. He then left the bar and drove by the deputy sheriffs, who told him to go to Briner’s residence, a trailer located at the Big Sky Campground.

Turner went to Briner’s trailer, knocked on the door, and entered the trailer. Inside, Briner sold Turner three and one-half grams of “crank,” or methamphetamine. These activities were monitored by the deputies, who were listening to the transmitter about 300 yards from the trailer. Turner left the Briner residence, met the deputies at a prearranged location, and turned over the methamphetamine. The deputies then searched Turner and his vehicle again. A field test of the substance Turner purchased from Briner confirmed that it was methamphetamine. Testing at the State Crime Lab also showed that the substance was methamphetamine.

On July 31, 1989, a similar transaction took place. Two deputy sheriffs met Turner, searched him and his car, wired him with a transmitter, and gave him some silver. While being monitored, Turner went to Briner’s trailer and purchased from Briner about two grams of a substance later identified both in a field test and by the State Crime Lab as methamphetamine. After leaving Briner’s trailer, Turner went directly to a predesignated location where he gave the deputies the methamphetamine and where both he and his car were searched again.

Based upon the above evidence, the jury found Briner guilty of two counts of sale of dangerous drugs.

I

Did the District Court err in refusing to allow the defense to inspect Turner’s statement to the police at the pretrial hearing?

The District Court held a pretrial hearing to consider a number of motions then before it. These included defense motions to dismiss the charges against Briner on grounds of entrapment and prosecutorial misconduct and to allow the defense access to a seventy-page statement Turner had given to the police. The principal ground argued for several of the motions was Turner’s criminal activities during the time he was acting as an informant. Turner admitted to drug use, theft, trading drugs for sex, and violations of the terms of his parole, among other crimes, during the months he was acting as an informant for federal and state authorities.

The day before he testified at the pretrial hearing, Turner refreshed his memory by reading the seventy-page statement he had previously made to authorities. During his testimony he acknowledged that he had so used the statement. The defense requested that the statement be produced. After eliciting Turner’s testimony that he had never before reviewed or signed the seventy-page statement, the court denied the motion to produce.

Briner’s argument is based on Rule 612, M.R.Evid., which provides in part:

If a witness uses a writing to refresh memory for the purpose of testifying, either
(1) while testifying, or
(2) before testifying, if the Court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce into evidence those portions which relate to the testimony of the witness ...
Briner claims that, in order to properly cross-examine Turner for purposes of the pretrial motions, he should have been allowed to examine Turner’s seventy-page statement.

At the pretrial hearing, one issue before the court was whether the defense should be given access to Turner’s statement. It would have been nonsensical to allow the defense access to the statement at the same hearing at which defense access to the statement was an issue before the court.

Under Rule 612, M.R.Evid., it is within the discretion of the district court whether, in the interest of justice, an adverse party should have access to a statement used by a witness to refresh memory. Briner has not specified anything in Turner’s statement which would have aided his already extensive cross-examination of Turner at the pretrial hearing. Also, as a result of the pretrial hearing, the court granted Briner’s motion for discovery of the seventy-page statement by Turner. After the hearing, and well before the trial in this matter, the defense was provided with a copy of the statement.

We hold that the District Court did not err in refusing to allow Briner’s counsel to inspect Turner’s statement at the pretrial hearing.

II

Did the court err in denying Briner’s request for a continuance when witness Turner was granted immunity?

On the third day of Briner’s trial, the Yellowstone County Attorney’s Office gave Turner a written immunity agreement in exchange for his testimony at the trial. The United States Attorney’s Office likewise gave Turner a written immunity agreement. The defense asked the court to continue the case to give it time to prepare for “this new evidence that has just happened and has just been disclosed and changes completely... the thrust of the whole case.” The court denied the motion.

Briner argues that his defense was based primarily on the cross-examination of Turner as to his credibility, because of the crimes Turner committed while he was working as an undercover agent and his claims that he had received no promises of help or immunity therefor. However, as the State points out, after Turner was granted immunity from prosecution, Briner’s counsel was able to cross-examine Turner fully on his criminal activities. If anything, the grant of immunity aided the defense by allowing it to proceed with a thorough cross-examination of Turner.

Briner also argues that the court prejudiced him by refusing to grant a continuance to allow his counsel to prepare for cross-examination of Turner when Turner was granted immunity. The court did allow a pause in the proceedings so that Briner’s counsel could examine the agreements.

The immunity agreements were entered into evidence and Turner was cross-examined in general as to their terms. Turner testified that his attorney, not he, negotiated the specifics of the agreements. Briner does not explain what he would have gained from added cross-examination of Turner concerning the agreements.

We hold that the District Court did not err in denying Briner’s request for a continuance when Turner was given immunity.

Ill

Were the two packets of methamphetamine improperly admitted into evidence because there was no proof of chain of custody?

Briner contends that there were several fatal gaps in the chain of custody of the packets of methamphetamine he allegedly sold to Turner. The State did not offer testimony from the person who mailed the packets from the sheriff’s office to the State Crime Lab in Missoula, the person who received them at the Crime Lab and mailed them back to the sheriff’s office, or the person at the sheriff’s office who received the packets from the Crime Lab and returned them to the evidence locker.

Briner cites State v. Carney (1986), 219 Mont. 412, 714 P.2d 532. In Carney, the evidence, a blood sample, was left in the open at a dispatcher’s desk for some twelve hours before it was in official custody. The District Court exercised its discretionary authority in ruling that a proper foundation had not been laid for introduction of the sample into evidence. The correctness of that ruling was not one of the issues considered on appeal.

In the present case, the time periods in question were after the methamphetamine was in official custody. The officer who received the methamphetamine from Turner testified that he marked and sealed the packets into which he placed it. A forensic scientist from the Crime Lab testified that she later broke those seals, tested the methamphetamine, and resealed the packets. At trial, the packets remained under the seals she had placed on them. Briner has not shown any evidence to overcome the resulting presumption that there was no tampering with the methamphetamine. State v. Armstrong (1980), 189 Mont. 407, 431, 616 P.2d 341, 355.

We hold that the District Court did not abuse its discretion in admitting the packets of methamphetamine into evidence.

IV

Did the court err in instructing the jury on the mental states of “knowingly” and “purposely”?

Briner argues that the definitions of “knowingly’ and “purposely’ as set forth in Montana statutes and in Jury Instruction No. 10 do not pass constitutional muster for definitions of intent sufficient to convict a person of a criminal offense. He recognizes that this issue has previously been presented to this Court and that the Court has consistently upheld the constitutionality of the statutory definitions of “knowingly’ and “purposely.” See State v. Sharbono (1977), 175 Mont. 373, 563 P.2d 61; State v. Beach (1985), 217 Mont. 132, 705 P.2d 94.

Briner states that this issue is raised for purposes of preservation for possible use in federal court. Inasmuch as no argument has been made that this Court should overturn its previous holdings, we affirm the District Court on this issue.

V

Does outrageous government misconduct bar this conviction?

Briner argues that Turner’s conduct, including drug use and other criminal acts during the months he acted as an informant, should preclude this conviction, which was based in large part upon Turner’s testimony. He asserts that the government’s failure to monitor and control Turner violates a sense of justice. Briner cites the doctrine of outrageous government conduct as recognized in various courts.

The doctrine of outrageous government conduct, as its name suggests, focuses on conduct of the government. See, e.g., United States v. Stenberg (9th Cir. 1986), 803 F.2d 422, 429. It is a “most narrow” defense. United States v. Ryan (9th Cir. 1976), 548 F.2d 782, 789, cert. denied, 429 U.S. 939. The government is not held accountable for unrelated criminal activity of an informant, especially when law enforcement was unaware of such activity. United States v. Simpson (9th Cir. 1987), 813 F.2d 1462, 1470, cert. denied, 484 U.S. 898, appeal after remand, 927 F.2d 1088.

In this case, there was no evidence that government agents participated in Turner’s criminal activity while he was acting as an informant. Nor was there any evidence that Yellowstone County authorities were aware of his illegal activities, other than two incidents of smoking marijuana which he reported to his probation officer. It is not claimed on appeal that Briner was entrapped or that the government engaged in brutality to or coercion of Turner to convince him to become an informant, or that Turner’s illegal activities were related to his purchases of drugs from Briner while he was wired and closely monitored by officers. The audio tapes of those purchases were introduced into evidence.

Turner’s illegal activities during the time he acted as an informant first came to light in December 1989 when he was no longer working as an informant and when he testified at a federal drug prosecution. The record does not support any connection between local law enforcement and Turner’s illegal activities.

In no way do we condone Turner’s illegal activities while he was acting as an informant. We hold, however, that this conviction is not barred under the doctrine of outrageous government conduct.

VI

Was the methamphetamine here involved properly designated a Schedule II dangerous drug?

Briner contends that possession of methamphetamine has been decriminalized in Montana because, following changes in federal law, the Board of Pharmacists did not reschedule methamphetamine under § 50-32-203, MCA. A similar contention was firmly rejected by this Court in State v. Meader (1979), 184 Mont. 32, 36-37, 601 P.2d 386, 388-89:

While it is true that the schedules were not annually revised or republished, we cannot accept the argument that this failure to republish and revise resulted in decriminalization of marijuana and methamphetamine ... [T]he Dangerous Drug Act does not indicate that the legislature intended the Board of Pharmacists to have the power, by inaction, to decriminalize the possession of all types of drugs and substances. Rather, we find that the legislature intended the original five schedules to be effective until such time as the Board and the Department took steps to carry out their statutory duties to revise and republish."

We hold that, under the same reasoning as in Header, the absence of a timely revision of the schedules of dangerous drugs did not negate the status of methamphetamine as a Schedule II dangerous drug.

Affirmed.

JUSTICES HARRISON, GRAY, McDONOUGH and WEBER concur.