author: JUSTICE HARRISON JUSTICE HUNT,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMES A. CROWDER, Defendant and Appellant.
    No. 90-399.
    Submitted on briefs Mar. 21, 1991.
    Decided Apr. 24, 1991.
    248 Mont. 169.
    810 P.2d 299.

      William Dee Morris, Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., Deanne L. Sandholm, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, County Atty., Barbara Harris, Deputy County Atty., Missoula, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

A jury sitting in the District Court of the Fourth Judicial District, Missoula County, convicted James A. Crowder of three counts of felony possession of dangerous drugs, one count of misdemeanor possession of a dangerous drug, and one count of criminal possession of drug paraphernalia, a misdemeanor. We affirm.

Crowder presents the following issues:

1. Did the District Court err in finding that the application for the search warrant contained facts sufficient to establish probable cause?
2. Did the District Court err in refusing to order disclosure of the identities of the police informants?
3. Did the District Court err in failing to join Counts I and II into a single count of possession of the dangerous drug methamphetamine?

Summary of Facts

Police received information from four informants over a period of a year alleging that James A. Crowder and his brother were manufacturing and selling methamphetamine. Only two of the informants were known to be reliable to police. The first informant, whose identity was known to the officer, apprised Detective Larry Jacobs in August 1988 that Crowder was distributing in Missoula County methamphetamine manufactured by Crowder’s brother in Idaho.

In October 1988 another informant, anonymous, but familiar by sight and known to be reliable by other police officers, told Detective Rocky Harris much the same information.

On June 2, 1989, a third informant disclosed to Detective Jacobs that the Crowder brothers had moved their methamphetamine lab to Missoula County. The third informant stated that, although he did not know the specific location of the lab, he had observed the glassware the Crowders used, had seen the finished product, and was in constant touch with the Crowders. Detective Jacobs knew the third informant, but had not previously relied upon him for information.

On August 14, 1989, a fourth informant, known to be reliable by Detective Jacobs, revealed that Jim Crowder had a methamphetamine lab and chemicals in the garage at his residence on Evaro Hill. The informant had seen the finished product, but not the lab. The fourth informant was involved in working on another case with police.

On August 17, 1989, the third informant, whose reliability was unknown, contacted Detective Jacobs for a second time. The informant claimed that he had personally observed Crowder’s methamphetamine lab and chemicals in Crowder’s garage near his house. According to the third informant, Crowder was likely to produce one to two pounds of methamphetamine within the next week. The third informant also believed that Crowder had marijuana growing on his property.

After the tip from the fourth informant, on August 14, 1989, Detective Jacobs and Agent Long of the Montana Criminal Investigation Bureau drove to Crowder’s residence and observed it from 8:00 to 11:00 p.m. The officers saw three men working on a pickup in the garage. Detective Jacobs and Agent Long, walking about 50 yards from the garage, thought that they detected an odor similar to that of chemicals used in the methamphetamine manufacturing process.

Based on the above information, a search warrant was issued, and eighteen fully-armed state and federal police officers approached the residence on August 18, 1989. When it became apparent that no danger existed, all of the men left except six officers who searched Crowder’s residence for five hours.

Officers searched Crowder’s person and found a brown vial containing methamphetamine residue and a brass pipe. In the garage officers discovered filter papers, one of which contained traces of methamphetamine, a glass tube, and a razor blade. In Crowder’s home, officers seized a peyote plant, a plastic baggie containing marijuana, another vial containing methamphetamine residue, marijuana on a tray in the kitchen cupboard, and another pipe used for smoking drugs.

One of the officers testified in a pre-trial hearing that police also seized a gas mask, rubber gloves, cooking instructions, and the recipe for methamphetamine, although these items were not introduced as evidence at trial.

Police did not find the glassware or chemicals used to make methamphetamine.

A jury found Crowder guilty of criminal possession of methamphetamine on the defendant’s premises, criminal possession of methamphetamine on the person, and criminal possession of mescaline, all felonies, as well as criminal possession of marijuana and criminal possession of drug paraphernalia, both misdemeanors.

Crowder received a five-year prison sentence for each of the first two counts, to be served concurrently, a five-year sentence for the third count, and six months in prison for each of the last two counts. All of the sentences were suspended, except for the concurrent five-year sentences for the first two counts. Crowder was also fined $1,000 and required to pay court costs.

I.

Did the District Court err in finding that the application for the search warrant contained facts sufficient to establish probable cause?

Crowder claims that the search warrant application was insufficient to establish probable cause because the police investigation was inadequate to corroborate the information provided by informants. Additionally, Crowder asserts that the application contained stale tips and was lacking in details about Crowder’s drug involvement.

A search warrant must state “facts sufficient to show probable cause for issuance of the warrant.” Section 46-5-202(l)(b), MCA. To determine whether a magistrate had probable cause to issue a warrant, the reviewing court must look solely to the information given to the impartial magistrate and to the four corners of the search warrant application. State v. Sundberg (1988), 235 Mont. 115, 121, 765 P.2d 736, 740.

To address the issue of probable cause for issuance of a warrant, this Court has adopted the “totality of the circumstances” test set forth in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527. State v. Jensen (1985), 217 Mont. 272, 704 P.2d 45. The duty of the reviewing court is to ensure that the magistrate had a “ ‘substantial basis’ ” to conclude that probable cause existed. Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332, 76 L.Ed.2d at 548 (quoting Jones v. United States (1960), 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697, 708). Ascertaining the veracity and bases of informants’ knowledge are important aspects of the “totality of the circumstances” test:

“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and Tasis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”

Gates, 462 U.S. at 238, 103 S.Ct. at 2332, 76 L.Ed.2d at 548. The United States Supreme Court emphasized the “value of corroboration of details of an informant’s tip by independent police work” estabhshing a “ ‘substantial basis for crediting the hearsay.’ ” Gates, 462 U.S. at 241-42, 103 S.Ct. at 2334, 76 L.Ed.2d at 550 (quoting Jones, 362 U.S. at 269, 80 S.Ct. at 735, 4 L.Ed.2d at 707).

Arguably, the investigation by the police department could have been more thorough. The location of the Crowder residence and outbuildings as described by informants was confirmed. Officers observed the Crowder residence for three hours. According to testimony, the officers saw three men working in the garage on a pickup truck. The other evidence gained by the officers was that they detected “an odor similar to that of chemicals used in the production of methamphetamine” when they walked within 50 yards of the garage.

Information in the warrant application about the informants and their sources, combined with the officers’ investigation, though less complete than would be desirable, is a basis for the probability that contraband would be found at the Crowder residence. The application stated that the fourth informant possessed “proven reliability.” The warrant application did not report the source of the fourth, rehable, informant’s knowledge. However, the United States Supreme Court noted in Gates:

“If, for example, a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth the basis for his knowledge surely should not serve as an absolute bar to a finding of probable cause based on his tip.”

Gates, 462 U.S. at 233, 103 S.Ct. at 2329-30, 76 L.Ed.2d at 545.

The third informant, although his reliability was not known, gave some details and stated that he had personally observed the lab and chemicals in Crowder’s garage. An informant’s personal observation of criminal activity is not hearsay information. Sundberg, 235 Mont. at 121, 765 P.2d at 740. The Supreme Court also commented on an informant’s personal observation in Gates:

“Conversely, even if we entertain some doubt as to an informant’s motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles his tip to greater weight than might otherwise be the case.”

Gates, 462 U.S. at 234, 103 S.Ct. at 2330, 76 L.Ed.2d at 545. The warrant application recited the third informant’s tip that a methamphetamine lab was located in Crowder’s garage and his description of the location of Crowder’s property and garage. In addition, the warrant gave the following information:

“The informant also stated that he believes Jim Crowder may also be growing marijuana on his property. This confidential informant further stated that he believes Jim Crowder has enough chemicals at his residence to produce approximately two pounds of methamphetamine and is likely to produce a large amount, possibly 1 or 2 pounds within the next week.” We find that sufficient details were provided to be considered under Gates.

Crowder protests the two tips from nearly a year previous to the warrant application as stale. “[A] determination of staleness in any given case depends largely on the nature of the property and activity in issue.” State v. Walston (1989), 236 Mont. 218, 223, 768 P.2d 1387, 1390. By themselves the August and October 1988 tips would not have been enough to establish probable cause. However, taken together with information gathered from later informants, the tips helped to establish a pattern of ongoing criminal activity. In addition, according to testimony, the first informant, though anonymous, was known by sight to other officers who recognized the informant as rehable.

“A magistrate’s ‘determination of probable cause should be paid great deference by reviewing courts.’ ” Gates, 462 U.S. at 236, 103 S.Ct. at 2331, 76 L.Ed.2d at 547 (quoting Spinelli v. United States (1969), 393 U.S. 410, 419, 89 S.Ct. 584, 591, 21 L.Ed.2d 637, 645). We hold that the circumstances set forth in the warrant application — the tip from a reliable informant coupled with an informant’s personal observation, and corroboration of the location and detection of an odor by the officers — viewed in their totality, formed a substantial basis for the magistrate to conclude that probable cause to find contraband or other evidence of wrongdoing on the Crowder premises existed.

II.

Did the District Court err in refusing to order disclosure of the identities of the police informants?

Crowder alleges that disclosure of the identity of the police informants was necessary to his defense because the informants “had provided false information to the authorities and examination of these informants would show that they were patently unreliable ...”

Montana Rules of Evidence provide:

“(a) Rule of privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law.
“(c) Exceptions and limitations.
“(2) Testimony on relevant issue. If it appears in the case that an informer may be able to give testimony relevant to any issue in a criminal case or to a fair determination of a material issue on the merits in a civil case to which a public entity is a party, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show facts relevant to determining whether the informer can, in fact, supply that testimony.” Rule 502, M.R.Evid.

This Court has adopted the balancing test expressed in Roviaro v. United States (1957), 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639. Disclosure of an informant’s identity requires “balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense.” Roviaro, 353 U.S. at 62, 77 S.Ct. at 628-29, 1 L.Ed.2d at 646. Disclosure “must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” Id.

By statute the District Court need not order disclosure of the identity of an informant who will not be called to testify if (1) disclosure would “result in substantial risk to the informant or to his operational effectiveness;” and (2) “failure to disclose will not infringe the constitutional rights of the accused.” Section 46-15-324(3), MCA. The defendant must show the need for revealing the informant’s identity. Mere speculation or conjecture about the relevance of the testimony is not adequate. State v. Babella (1989), 237 Mont. 311, 315, 772 P.2d 875, 878.

Crowder maintains that the third informant lied because police found neither glassware, chemicals, the finished product, nor evidence of a marijuana growing operation as described in the warrant application. While a methamphetamine lab was not discovered, according to testimony offered at the pretrial hearing, officers did seize articles consistent with methamphetamine production, including gas masks, a coffee filter containing methamphetamine, cooking instructions, and the recipe for methamphetamine manufacture written on a coffee filter.

As for the marijuana growing operation, the warrant application stated that the informant believed that marijuana was being grown on Crowder’s property, not that the informant had seen the marijuana.

We note that it was particularly in the public interest not to reveal the identity of the fourth informant who was being used in another police investigation. Because Crowder failed to demonstrate that the information supplied to police was false, we affirm the District Court’s refusal to order disclosure of the informants’ identities.

III.

Did the District Court err in failing to join Counts I and II into a single count of possession of the dangerous drug methamphetamine?

Crowder was charged and convicted of one count of criminal possession of methamphetamine on his person and one count of criminal possession of methamphetamine on his premises. These charges arose from the search of Crowder’s residence, where police found a vial containing methamphetamine residue on Crowder’s person and discovered another vial containing methamphetamine residue in Crowder’s bedroom, as well as methamphetamine in a coffee filter located in the garage.

Crowder asserts that “principles of fundamental fairness require that a defendant be charged only once for conduct which amounts to the ‘same transaction.’ ” See § 46-11-501(1), MCA. The State responds that the test to determine whether the defendant has committed two offenses or only one is whether each count requires proof of a fact which the other does not.

We have not previously addressed the issue of whether possession “on the person” and “on the premises” constitute separate offenses. Generally, under the Fifth Amendment to the United States Constitution, applied to the states in 1969, a person cannot be tried more than once for the same conduct. State v. Wells (1983), 202 Mont. 337, 658 P.2d 381; Benton v. Maryland (1969), 395 U.S. 784, 796, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707, 717.

The Constitutional prohibition against double jeopardy protects a defendant both from multiple punishments imposed at a single prosecution for the same offense and from multiple prosecutions for offenses arising out of the same transaction. State v. Palmer (1983), 207 Mont. 152, 158, 673 P.2d 1234, 1237. In examining questions of double jeopardy, this Court has consistently applied the test set forth in Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. One issue in Blockburger was whether petitioner should have been convicted of violations of two statutory provisions arising from a single sale of morphine:

“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”

Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. (Emphasis added.)

The Blockburger test is a “test of statutory construction ... to determine whether Congress intended the same conduct to be punishable under two criminal provisions.” Ball v. United States (1985), 470 U.S. 856, 861, 105 S.Ct. 1668, 1671, 84 L.Ed.2d 740, 746. Since Blockburger, the United States Supreme Court “has recognized that the Blockburger test focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial.” Illinois v. Vitale (1980), 447 U.S. 410, 416, 100 S.Ct. 2260, 2265, 65 L.Ed.2d 228, 235.

This Court has employed the Blockburger test to determine whether a defendant can be charged and convicted of violating two statutes for the same act or transaction. For example, we have ruled that a defendant can be convicted of both sexual intercourse without consent and aggravated kidnapping, State v. Clawson (1989), 239 Mont. 413, 781 P.2d 267; of both misdemeanor assault and sexual assault, State v. Long (1986), 223 Mont. 502, 726 P.2d 1364; but cannot be convicted, when the drugs are identical, of both possession of dangerous drugs and possession of dangerous drugs with intent to sell. State v. Peterson (1987), 227 Mont. 503, 741 P.2d 392.

In contrast, Crowder was charged with two violations of the same statutory provision, § 45-9-102, MCA, which provides in part:

“A person commits the offense of criminal possession of dangerous drugs if he possesses any dangerous drug, as defined in 50-32-101.”

Section 45-9-102(1), MCA. Thus, the question is whether Crowder’s possession of drugs on his person and possession of drugs on his property constituted two separate acts of possession. See United States v. Woods (6th Cir. 1978), 568 F.2d 509 (issue is whether one course of conduct can result in multiple violations of the same statute, rather than whether a single act violates a multiplicity of statutes), cert. denied, 435 U.S. 972, 98 S.Ct. 1614, 56 L.Ed.2d 64 (1978).

The United States Supreme Court ruled on a similar question in considering a second issue in Blockburger. The petitioner, convicted of two additional counts of selling morphine under a single provision of the Narcotics Act, contended that because the two sales in question were made to the same person within a short time, they comprised a single continuing offense. Examining legislative intent, the Supreme Court concluded that the statute did not punish engaging in the business of selling dangerous drugs, but penalized any sale:

“Each of several successive sales constitutes a distinct offense, however closely they may follow each other. The distinction stated by Mr. Wharton is that ‘when the impulse is single, but one indictment lies, no matter how long the action may continue. If successive impulses are separately given, even though all unite in swelling a common stream of action, separate indictments lie.’ ”

Blockburger, 284 U.S. at 302, 52 S.Ct. at 181, 76 L.Ed. at 308 (citation omitted); see also Bell v. United States (1955), 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905; United States v. Universal C.I.T. Credit Corporation (1952), 344 U.S. 218, 73 S.Ct. 227, 97 L.Ed. 260. To determine the “allowable unit of prosecution” courts look to legislative intent since discretion is with the legislature to impose punishments, subject only to constitutional limitations. Bell, 349 U.S. at 81-82, 75 S.Ct. at 622, 99 L.Ed. at 910. See State v. Meadors (1978), 177 Mont. 100, 580 P.2d 903 (legislature meant to provide distinct crimes for possession of different kinds of dangerous drugs).

In this case, the statutory language clearly demonstrates that the legislature intended to punish each separate “possession” of dangerous drugs, but we are still left with the question of what constitutes a separate “possession.” Generally, when defendant possesses “the same controlled substance in the same place at the same time, he commit(s) only one act of possession.” United States v. Johnson (D.C. Cir. 1990), 909 F.2d 1517,1519; see also United States v. Woods (6th Cir. 1978), 568 F.2d 509; United States v. Williams (6th Cir. 1973), 480 F.2d 1204.

According to the legislature, possession is the “knowing control of anything for a sufficient time to be able to terminate control.” Section 45-2-101(52), MCA. The elements of possession are knowledge and control. State v. Krum (1989), 238 Mont. 359, 777 P.2d 889. In addition, this Court has distinguished between “actual” possession and “constructive” possession:

“Actual possession means that the drugs are in the personal custody of the person charged with possession; whereas constructive possession means that the drugs are not in actual physical possession but that the person charged with possession has dominion and control over the drugs.”

State v. Van Voast (Mont. 1991), [247 Mont. 194,] 805 P.2d 1380, 1383, 48 St.Rep. 160, 161. Crowder’s possession of drugs “on the person” constituted “actual” possession, while his possession of drugs “on the premises” constituted “constructive” possession. We note that the jury instructions included definitions of both “actual” and “constructive” possession.

In addition, federal courts have upheld separate convictions based in part on the manner of possession, constructive and actual. See United States v. Briscoe (7th Cir. 1990), 896 F.2d 1476, cert. denied,_U.S._, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990); United States v. Rich (8th Cir. 1986), 795 F.2d 680. We conclude that the District Court did not err in failing to join the separate counts of possession “on the person” and possession “on the premises.”

Affirmed.

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

JUSTICE HUNT,

dissenting:

I dissent. The majority again appears to abandon “probable cause” for “remote possibility.”

The purpose of the search warrant provision of the Fourth Amendment to the United States Constitution is that the long and powerful arm of the law may not reach into and disrupt people’s lives without reason. The four corners of the warrant must contain facts sufficient to show that it is more probable than not that fruits of a crime will be found.

Here we have almost 20 fully armed officers of the law descending on a person’s home, some of whom stay and turn it upside down for five hours. What facts justify this drastic incursion into the defendant’s life? The four comers of the search warrant contain: two stale informants’ tips; one tipster who said he had seen a lab but offered no detail at all regarding it; one tipster said to be reliable but with no basis for the reliability given in the application; and “corroboration” by the police of these outdated or flimsy tips consisting of verifying that the suspect’s residence was in fact where the tipsters said it was. The application also states that two officers walking a distance equal to one-half of a football field, “detected an odor similar to that of chemicals [which were never found] used in the production of methamphetamine.”

The chemicals used in the production of methamphetamine are common compounds. They are not, like the odor of burning marijuana, indicative of criminal activity. Nor is it suspicious that the defendant’s residence was located where the tipsters said it was. So, we base a warrant on no independent corroboration of not necessarily reliable tips, and it justifies a five hour search of a person’s house. This is not within the contemplation of even the relaxed Gates standards for probable cause, let alone within the parameters of the Fourth Amendment.

I must continue to dissent to opinions which leave open the door to illegal incursion into homes and lives of citizens. If anything, Montana’s probable cause standard should be higher than the federal standard, consistent with our expressed constitutional right to privacy. Further, the recurrence in this Court of tenuous probable cause showings proves the point that as long as we allow questionable warrants to stand, the courts of this state will continue to be clogged with appeals from diligent readers of the state and federal constitutions.

I dissent to the second issue in the majority opinion because the warrant makes no showing that the confidential informant is rehable. In the absence of any additional information, the defendant is unable to question the application to determine if the informant even exists, let alone is reliable.

I dissent to the third issue in the majority opinion. The majority’s unprecedented decision that a suspect maybe charged with separate felony counts for the same drug found on the person and on the premises is alarming.

The majority relies on Blockburger to support its conclusion that each of Crowder’s two possession charges necessitated proof of a fact that the other did not. Blockburger provides that two offenses can derive from the same act if each provision requires proof of a fact which the other does not. The majority here concludes that because it characterizes one possession as “actual” and one as “constructive,” different proof was required for each, and therefore, the Blockburger test applies.

But the fact is that it is the possession of the particular drug, whether actual or constructive, that is the single item to be proved. Sale of drugs presents a different situation, as each sale is a separate transaction. And separate drugs are meant to be prosecuted separately, as we stated in State v. Meadors, cited by the majority. But as the majority points out but then fails to follow, “when the defendant possesses ‘the same controlled substance in the same place at the same time, he commit[s] only one act of possession.’ ” Citing United States v. Johnson, 909 F.2d 1517, 1519 (D.C.Cir. 1990). (Emphasis added.)

In United States v. Woods, 568 F.2d 509 (6th Cir. 1978), the Sixth Circuit Court of Appeals stated, regarding heroin possession:

“[A]s long as the statute does not graduate the gravity of the crime of possession of heroin by the quantity possessed, we see no indication that Congress intended to permit a multiplication of the offenses of possession at any given time by a defendant upon evidence that the heroin may merely have been separately packaged or stashed.

Woods, 568 F.2d at 513 (Emphasis added.). Woods also explains that the sentencing potentialities permit one conviction to accommodate an inclusive possession conviction. See also, United States v. Williams, 480 F.2d 1204 (6th Cir. 1973), (holding that only one offense should have been charged when four separate packages of the same drug were found). Further, the cases the majority cites as upholding “separate convictions based on the manner of possession, actual or constructive” are not analogous to the facts before us. United States v. Briscoe, 896 F.2d 1476 (7th Cir. 1990), upholds three separate charges where drugs were smuggled into the country in the body cavities of three different women. United States v. Rich, 795 F.2d 680 (8th Cir. 1986), upholds separate charges for drugs found on a man’s person at an airport, and later at his home. Neither presents a case, like Crowder’s, of separate charges for possession “in the same place at the same time.”

The decision to charge separate possessions of the same drug separately has serious implications. Overzealous prosecutors may find themselves able to charge a marijuana grower separately for each plant, or a methamphetamine manufacturer for each package of separately stored contraband. This departure should not be condoned by this Court.

I would vacate the sentence and remand to the District Court.

JUSTICE TRIEWEILER concurs in the dissent of Justice Hunt.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LEON LLOYD WHITCHER, Defendant and Appellant.
    No. 90-343.
    Submitted on briefs Mar. 28, 1991.
    Decided Apr. 29, 1991.
    248 Mont. 183.
    810 P.2d 751.
    Arthur J. Thompson, Thompson & Sessions, Billings, for defendant and appellant.

      Marc Racicot, Atty. Gen., Joseph E. Thaggard, Asst. Atty. Gen., Helena, Dennis Paxinos, Yellowstone County Atty., Charles Bradley, Deputy County Atty., Billings, for plaintiff and respondent.
   JUSTICE GRAY

delivered the Opinion of the Court.

The defendant, Leon Lloyd Whitcher, was convicted of sexual intercourse without consent by jury trial in the District Court of the Thirteenth Judicial District, Yellowstone County. He appeals. We affirm.

The sole issue on appeal is whether the evidence is sufficient to support the jury’s verdict of guilty.

On Friday, April 14, 1989, fourteen-year-old N.H. agreed with a friend, Angie, age thirteen, to go to a party that night which had been primarily arranged between Angie and Adam, age seventeen. At approximately 11:50 p.m., N.H. and Angie met with four male individuals at the Huntley Bridge near Shepherd, Montana. These individuals were Adam, Shannon (age fifteen), Wes Plum (age twenty-two) and the defendant (age thirty). N.H. did not know the defendant, although she recognized him as the owner of the local video store.

The group entered the defendant’s car and went to a nearby bar to purchase some liquor. The defendant then drove the group to an abandoned house which he owned outside Shepherd. The group arrived at the house around midnight.

A pentagram, a satanic symbol in the form of a five-sided star inside of a circle with an eye in the center of the star, was painted on the floor of a large room in the house. Adjacent to this room, and connected by a doorway, was a smaller room. A closet was located between the two rooms. Upon entering the closet from the room containing the pentagram, one could look into the smaller room through a large hole in the common wall between the closet and the smaller room.

After entering the house, everyone sat down in the larger room and began drinking. At some point, Adam produced two books concerning witchcraft and began talking about satanism.

Approximately ten minutes later, the defendant instructed Angie to accompany him into the small room. The defendant left the door to the room open and Angie sat on a large pillow covered with a blanket. Angie remained in the room for approximately fifteen minutes, during which time the defendant asked her questions one would ask a person seeking initiation into a satanic cult. He asked her if she had ever belonged to a cult, if she was a virgin, if she was ashamed of her body, if she wanted power, and if she would obey a “high priest.” Additionally, the defendant asked Angie if N.H. was a “shy or decent girl,” if N.H. was “the same” as Angie, and if N.H. would “open up to him.”

The defendant then instructed Angie to don a black robe, which she put on over her clothes. Shortly thereafter, Angie removed the robe and returned with the defendant to the other room. Angie then told N.H. to go into the small room with the defendant. The defendant told N.H. that he wanted to ask her some “routine questions.”

At trial, the principal witnesses offered varying and sometimes conflicting accounts of the events which followed N.H.’s entry into the small room. N.H. testified that when she entered the room she had consumed only one drink of peach schnapps. She further testified she drank another three swallows of the liquor during the one and one-half hours which she estimated she spent in the room with the defendant, but that she did not get drunk during that time. N.H. claimed that when they entered the room, the defendant closed the door and told her to sit on the pillow. With only a candle lighting the room, the defendant asked her questions similar to those he asked of Angie. The defendant then directed N.H. to don a black robe and turn herself in a movement which he said constituted the sign of a star. While she did so, the defendant told N.H. about a creature with a cat head and a human body which would act as her protector. When N.H. completed this movement, the defendant told her to remove all her clothing from beneath the robe. N.H. testified that she did as instructed because she was frightened.

The defendant then instructed N.H. to lie on her back, pull her legs up to her chest, and stare at a pentagram painted on the ceiling. He then engaged in sexual intercourse with her without removing his clothes. According to N.H., Adam knocked on the closet wall twice during the incident and asked what was taking so long. The defendant stopped when Adam knocked on the wall the second time. At that point, the defendant told Adam that he was “almost done with the questions.” N.H. then started screaming for Angie.

Before Angie reached the room, the defendant told N.H. to sit up and quickly zipped his pants. The defendant told Angie upon her arrival that N.H. had consumed the entire bottle of schnapps and was drunk. He then left the room. N.H. testified that she told Angie that “he hurt me” and that “Matt” had raped her. N.H. testified that she could not remember the defendant’s name at that time and mistakenly referred to him as “Matt.” After she dressed and regained her composure, N.H. returned to the larger room where, in anger, she proceeded to get drunk.

The defendant offered a different account of the events of that night. He testified that he merely wished to chaperon Adam and Angie on their first date. The defendant did admit that he had previously practiced satanism, but denied that he intended for the party to assume a satanic nature. Although he admitted taking the two girls into the room and asking them questions related to initiation into satanic cults, the defendant claimed he did so to dispel their interest in the occult by scaring them. He denied that he told N.H. to don the robe or remove her clothes. He claimed that he left the room to use the bathroom; when he returned, N.H. had put on the robe. The defendant claimed N.H. then began screaming that “Matt” had hurt her. He denied that he ever engaged in sexual intercourse with N.H.

The other witnesses were not actually present in the small room during the incident but did offer testimony. Angie testified that N.H. was “buzzed” but not drunk when she entered the small room. She testified that N.H. and the defendant were in the small room for approximately thirty minutes, but later admitted she told a detective investigating the case that they were in the room perhaps an hour and fifteen minutes. She also testified that she could hear voices from the small room and there was never any silence. Angie testified that, after Adam knocked on the wall the second time, the defendant told her to come into the room because N.H. was hallucinating. When she entered the room, N.H. was naked except for the robe, was crying and was “massively drunk.” Angie testified N.H. did not tell her the defendant raped her, but rather that someone named Matt and also her father had hurt her.

Wes Plum testified that N.H. and the defendant were in the small room for about fifteen or twenty minutes and that when N.H. went into the room she was “in between” intoxication and sobriety. According to Plum, N.H. “started freaking out” while still in the small room. He further admitted that he “probably” told a detective that shortly before she came out of the small room, N.H. had screamed that the defendant had raped her.

Adam testified that while N.H. and the defendant were in the small room, he went to the door of the room once and into the closet once and on one of these occasions he spoke with the defendant. Adam testified that he observed the defendant leave the small room and, on his return, he heard the defendant state that N.H. had removed her clothing and put on a black robe while he was out of the room. The defendant then told Angie to come into the small room and have N.H. put her clothes back on. Adam denied that he and the other males at the party belonged to a satanic coven or that defendant served as the high priest of that coven. When the prosecution presented a transcribed statement Adam had previously given to a detective in which he admitted the existence of such a coven and the defendant’s role in that coven, Adam denied making such statements to the detective. Adam did admit that the questions the defendant asked the two girls pertained to a “white [satanic] mass,” which he described as an orgy.

On Monday, April 17,1989, N.H. reported to one of her teachers at school that the defendant had raped her on the preceding Friday night. The defendant was subsequently arrested and charged by information with one count of sexual intercourse without consent and two counts of unlawful transactions with minors. The information was later amended to add an unrelated charge of sexual intercourse without consent.

A jury heard the trial in this matter September 5 through September 8, 1989. The jury found the defendant guilty of the original three charges and not guilty of the unrelated charge of sexual intercourse without consent. The District Court sentenced the defendant to thirty years imprisonment, with ten years suspended. The defendant appeals only from his conviction of the offense of sexual intercourse without consent.

Is the evidence sufficient to support the jury’s verdict of guilty?

The standard of review of the sufficiency of the evidence for a criminal conviction is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573; State v. Brown (1989), 239 Mont. 453, 456, 781 P.2d 281, 284.

Aperson commits the offense of sexual intercourse without consent if that person (1) knowingly, (2) has sexual intercourse, (3) without consent, (4) with a person of the opposite sex. Section 45-5-503, MCA. Under § 45-5-501(2)(c), MCA, the victim is incapable of consenting to sexual intercourse if he or she is less than sixteen years old.

The defendant asserts that his conviction is based upon the testimony of the victim, N.H., whose testimony is wholly unsupported by the testimony of any other witness or by physical evidence. He argues that the victim’s testimony is so inherently incredible that no rational trier of fact could find guilt beyond a reasonable doubt. We disagree.

The defendant, the victim, and several other witnesses testified to the events which occurred during the night of April 14-15, 1989. Portions of the witnesses’ testimony supported the victim’s testimony; other parts contradicted it and supported the defendant’s testimony. Only the defendant and the victim were present in the small room during the time at issue. The weight of the evidence and the credibility of the witnesses is exclusively within the province of the trier of fact. When the evidence conflicts, the trier of fact determines which evidence shall prevail. State v. Lamping (1988), 231 Mont. 288, 293, 752 P.2d 742, 746; Brown, 239 Mont. at 457, 781 P.2d at 284.

The issue of sufficiency of the evidence in this case essentially boils down to the credibility of the evidence establishing the sexual intercourse element of the offense. Contrary to the defendant’s assertion, the victim’s testimony concerning this element is not uncorroborated. At least two witnesses admitted to hearing the victim scream that she had been raped and believed she was talking about the defendant. Furthermore, even if we characterized the victim’s testimony as uncorroborated, this Court has consistently held that a conviction of sexual intercourse without consent is sustainable based entirely on the -uncorroborated testimony of the victim. Lamping, 231 Mont. at 293, 752 P.2d at 746; State v. Maxwell (1982), 198 Mont. 498, 503, 647 P.2d 348, 351; State v. Metcalf (1969), 153 Mont. 369, 378, 457 P.2d 453, 458.

Here the jury weighed the credibility of the conflicting testimony and chose to believe the victim’s version of the incident. We hold that, based on the evidence presented at trial, a rational trier of fact could have found the defendant guilty of the offense of sexual intercourse without consent beyond a reasonable doubt.

Affirmed.

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


author: JUSTICE HARRISON

text:
    In re the MARRIAGE OF PAMELA MAXWELL, Petitioner and Respondent, v. HOWARD MAXWELL, Respondent and Appellant.
    No. 90-476.
    Submitted on briefs Apr. 4, 1991.
    Decided Apr. 29, 1991.
    248 Mont. 189.
    810 P.2d 311.

      Susan L. Weber, Miller & Cook, Great Falls, for respondent and appellant.
    Antonia R Marra, Bell & Marra, Great Falls, for petitioner and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Howard Maxwell appeals from a judgment of the District Court of the Eighth Judicial District, Cascade County, Montana, Judge John M. McCarvel presiding, granting Pamela Maxwell primary physical custody of the couple’s minor children. We reverse and remand.

We frame the issues as follows:

1. Did the District Court err in failing to consider all of the factors set forth in § 40-4-212, MCA, in determining the children’s best interests?
2. Did the District Court err in refusing to allow certain testimony of witnesses offered by the father?

The Maxwells were married eleven years and had three sons, ages 9, 8, and 4, at the time of the dissolution. Two hearings were held. On June 18, 1990, the District Court considered the father’s motions for temporary custody and a home study. The comb ordered temporary joint custody with time between the two parents to be shared equally. The court also ordered a home study by the Montana Department of Social and Rehabilitation Services.

The home study was conducted by the same social worker who testified at the first hearing as a witness for the father. Names were given to her by both the mother and father. The social worker interviewed everyone on the list, except for three people whose names were supplied by the mother: Candy Maxwell, the father’s sister-in-law, Sue Lundgren, the children’s maternal grandmother and Judy Lundgren. The social worker testified at the second hearing that she had interviewed all persons said by the mother to have had knowledge of the mother’s parenting skills.

The Home and Family Assessment documented a history of the mother’s physical and verbal abuse directed at the children and others. While most of the accounts came from members of the father’s family, others who were not members of the Maxwell family corroborated their information.

The most damaging narratives came from the children themselves, who innocently accepted the blame for their mother’s abuse and viewed the mother’s abusive behavior as normal. As an example, the oldest child said he was at fault for nosebleeds caused by his mother’s slaps to the head because he “forgot to cover his nose with his arms.”

The social worker, the only expert who testified in this case, concluded:

“I found little substantiating evidence to support Pam’s statements she has never abused her children, including statements made by her own children as they described, in what in my opinion is physical and emotional abuse. I found no evidence to support that Howard is an abusive, neglectful parent.”

The social worker recommended that the father have sole custody and that the mother be given “reasonable visitation.” The social worker also urged the court to greatly limit visitation by the mother until she completed a psychological evaluation to determine the extent of the mother’s needs for counseling. Counseling was also recommended for the children and for the father to “resolve issues in regards to his unhealthy relationship with Pam” and “development of parenting skills.”

During the second hearing held July 27, 1990, the court heard testimony from the mother; two of the individuals whom the social worker had not interviewed, Candy Maxwell and Sue Lundgren; the social worker; and the two oldest sons.

Candy Maxwell, sister-in-law of the father, testified that the mother disciplined the children as any other mother would by spanking them after three or four warnings. She said that the mother had recently adopted a penny method, giving and taking away money according to the children’s behavior. Mrs. Maxwell stated that she had not seen the father discipline the children because she usually visited the mother while the father was working.

The maternal grandmother, Sue Lundgren, testified that, contrary to what many members of the Maxwell family and others had said, she had never heard the mother call the children obscene names, scream at the children, or hit the children.

The eight and nine-year-old sons again told the judge in chambers that they would rather stay with their mother because they disliked the father’s girlfriend. The court refused to hear testimony from any of the father’s witnesses whose interviews were detailed in the home study.

The District Court awarded the parents joint custody with primary custody to remain with the mother. In the findings of fact and conclusions of law of the dissolution decree, except to mention that a home study was ordered, the District Court did not address the Home and Family Assessment or the social worker’s recommendations.

I.

Did the District Court err in failing to consider all of the factors set forth in § 40-4-212, MCA, in determining the children’s best interests?

In child custody matters the primary consideration is the child’s best interest. Section 40-4-223, MCA. In determining the child’s best interest the court shall consider the following factors:

“(a) the wishes of the child’s parent or parents as to his custody;
“(b) the wishes of the child as to his custodian;
“(c) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest;
“(d) the child’s adjustment to his home, school, and community;
“(e) the mental and physical health of all individuals involved;
“(f) physical abuse or threat of physical abuse by one parent against the other parent or the child; and
“(g) chemical dependency, as defined in 53-24-103, or chemical abuse on the part of either parent.”

Section 40-4-212, MCA. The district court can weigh additional factors, such as “the parents’ ability to cooperate in their parental roles, the child’s relationship with both parents, and the geographic proximity of the parents’ residences.” Lorenz v. Lorenz (1990), 242 Mont. 62, 66-67, 788 P.2d 328, 331.

While the district court is not required to make specific findings as to each factor, the “ ‘essential and determining facts upon which the District Court rested its conclusion must be expressed.” In re Marriage of Bloom-Higham (1987), 227 Mont. 217, 219, 738 P.2d 114, 115 (quoting In re Marriage of Keating (1984), 212 Mont. 462, 467, 689 P.2d 249, 251-252). However, this does not mean that the district court can ignore circumstances which may endanger the children. Specifically, the District Court, in stating its reasons for awarding primary physical custody to the mother, overlooked “the mental and physical health of all individuals involved” and “physical abuse or threat of physical abuse by one parent against the other parent or the child.” Sections 40-4-212(e) and (f), MCA.

Even if only part of the information in the Home and Family Assessment is true, a great deal of evidence still exists to support the social worker’s conclusion that the mother emotionally and physically abused the children. In contrast, none of the persons interviewed or witnesses in court testified that the father was abusive or a poor parent.

The District Court seemed to rely chiefly on the children’s testimony that they wished to stay with the mother. While the children’s wishes are a factor to be considered under § 40-4-212, MCA, these wishes cannot be given priority when the evidence indicates that the mother is unfit.

This policy is reflected by the rule in Montana that joint custody is preferred, but “a finding that one parent physically abused the other parent or the child is a sufficient basis for finding that joint custody is not in the best interest of the child.” Section 40-4-224, MCA.

The standard of review in a child custody case is whether the findings of the district court are clearly erroneous. The district court’s decision will be upheld unless a clear abuse of discretion is shown. In re Marriage of Susen (1990), 242 Mont. 10, 13-14, 788 P.2d 332, 334.

In Bloom-Higham, the district court ordered an investigation and report concerning custodial arrangements for the child pursuant to § 40-4-215, MCA, but did not indicate any consideration of the report in reaching its final custody decision. We found the court’s failure to consider the report an abuse of discretion. Bloom-Higham, 227 Mont. at 220, 738 P.2d at 115-116.

The District Court clearly abused its discretion in failing to consider the home study and all of the factors of § 40-4-212, MCA, particularly the mother’s mental health and abuse of the children. Notably missing was any order of a psychological evaluation of the mother to determine whether she was capable of parenting the children or order of counseling for the mother and other family members.

The judgment of the District Court is reversed with direction to award primary physical custody of the three sons to the father.

II

Did the District Court err in refusing to allow certain testimony of witnesses offered by the father?

Since the court’s decision has been reversed, we need not discuss this issue.

JUSTICES GRAY, HUNT, TRIEWEILER and WEBER concur.


author: JUSTICE McDONOUGH

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. EDWARD F. MILLER, Defendant and Appellant.
    No. 90-608.
    Submitted on briefs Mar. 14, 1991.
    Decided Apr. 29, 1991.
    Rehearing Denied June 6, 1991.
    248 Mont. 194.
    810 P.2d 308.

      Arthur J. Thompson, Billings, for defendant and appellant.
    Marc Racicot, Atty. Gen., Paul D. Johnson, Asst. Atty. Gen., Helena, A. W. Kendall, County Atty., Red Lodge, for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The defendant Edward F. Miller appeals the order of the Montana Thirteenth Judicial District Court denying his motion to withdraw his plea of guilty. The issue raised on appeal is whether such denial constitutes an abuse of discretion by the District Court. We affirm.

Miller was charged with one count of assault and two counts of sexual assault, all felonies. He appeared before the District Court on April 23, 1990 and moved to withdraw his earlier plea of not guilty and replace it with a guilty plea. The record indicates that Miller and the State had entered a plea bargain agreement whereby in exchange for Miller’s plea of guilty, the county attorney agreed to recommend two three-year deferred sentences for sexual assault, and one four-year deferred sentence for assault, all to run consecutively. Miller entered pleas of guilty to all counts pursuant to North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162, maintaining his innocence but conceding that the State had sufficient evidence to convict him.

A presentence investigation and report was ordered, and sentencing was scheduled to take place on May 29, 1990. On that date, Miller’s attorney, Gary Spaeth, moved to withdraw as counsel. The motion was granted, Miller asked for appointed counsel, and Arthur J. Thompson was appointed as counsel of record. Miller also indicated at this time that he wished to change his plea to not guilty. On June 18, 1990, Miller’s new counsel filed a motion to withdraw his guilty plea.

A hearing was held on June 25, 1990, before the District Court. Originally scheduled as a sentencing hearing, the court now took up the matter of Miller’s motion to withdraw his guilty plea, and scheduled an evidentiary hearing on the matter for July 23, 1990. After the hearing the court denied the motion to withdraw the plea on August 2,1990.

At sentencing on October 22,1990, the court took note of the plea agreement and sentencing recommendation in the pre-sentence report. The court chose not to follow the recommendations made by the county attorney. It sentenced Miller to three years in the Montana State Prison on each of the three charges, to rim consecutively, for a total of nine years. The court then suspended all of the sentence except for one year.

Miller moved the court for a stay of execution of the sentence pending appeal of the court’s order denying the motion to withdraw the guilty plea. The court granted the stay. We now consider Miller’s appeal of the court’s denial of the motion to withdraw his plea.

Section 46-16-105, MCA, provides:

“46-16-105. Plea of guilty. (1) Before or during trial, a plea of guilty may be accepted when:

“(a) the defendant enters a plea of guilty in open court; and
“(b) the court has informed the defendant of the consequences of his plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea.
“(2) At any time before or after judgment the court may, for good cause shown, permit the guilty plea to be withdrawn and a plea of not guilty substituted.”

It is important to note that when a plea of guilty is accepted pursuant to an agreement between the defendant and the State, the trial court is not bound by that agreement. Section 46-12-204(3)(a), MCA. However, in this case, Miller moved to withdraw his plea prior to the District Court imposing a different sentence than the one recommended by the prosecutor. At the hearing on his motion to withdraw, Miller alleged that he had first retained a Colorado attorney, Rowe Stayton, as counsel, and then Mr. Spaeth was hired to act as local counsel. He further alleged that Mr. Stayton recommended that he enter the plea agreement, but failed to correctly inform him of some of the consequences of his plea. In particular, Miller alleged that he was not informed that he would have to report to a probation officer, he would be unable to leave the state freely, and that he might not be allowed to own a firearm.

Three factors should be considered when determining whether a defendant’s guilty plea should be withdrawn:

1. The adequacy of the District Court’s interrogation as to the defendant’s understanding of the plea;
2. The promptness of the motion to withdraw the prior plea;
3. The fact that the defendant’s plea was apparently the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge.

State v. Long (1987), 227 Mont. 199, 201, 738 P.2d 487, 489. Absent an abuse of discretion, a trial judge’s decision not to allow the withdrawal of a guilty plea will be affirmed. Long, 738 P.2d at 489. Here, the defendant’s motion was promptly made. Also, there is no question that the District Court’s interrogation of Miller regarding his plea was adequate. The court fully informed the defendant of the consequences of his plea and of the maximum penalty provided by law which could be imposed upon acceptance of the plea. The court also informed and the defendant understood that the court was not bound by the plea bargain agreement. Thus, we now consider the third factor, that the plea was entered pursuant to a plea bargain agreement, and consider whether the defendant has shown “good cause” for withdrawing his plea. Section 46-16-105(2), MCA.

We recently reviewed the subject of a defendant’s request to withdraw a guilty plea in Benjamin v. McCormick (1990), 243 Mont. 252, 792 P.2d 7. ‘When a guilty plea is based upon a fundamental mistake or misunderstanding as to its consequences, the sentencing court, at its discretion, may allow the defendant to withdraw the plea.” Benjamin, 792 P.2d at 10. We further noted:

“A change of plea will be permitted only if it fairly appears the defendant was ignorant of his rights and the consequences of his act, or he was unduly and improperly influenced either by hope or by fear in making the plea, or if it appears the plea was entered -under some mistake or misapprehension. Each case must be examined on its own record. The motion rests with the District Court’s discretion and the exercise of that discretion will not be disturbed absent an abuse of discretion.”

Benjamin, 792 P.2d at 10, quoting State v. Mesler (1984), 210 Mont. 92, 96, 682 P.2d 714, 716. The fundamental purpose of allowing a defendant to withdraw a guilty plea is to prevent the possibility of convicting an innocent man. State v. Pelke (1964), 143 Mont. 262, 271, 389 P.2d 164, 169. Accordingly, a plea of guilty will be deemed involuntary where it appears that the defendant was laboring under such a strong inducement, fundamental mistake, or serious mental condition that the possibility exists he may have pled guilty to a crime of which he is innocent. State ex rel. Gladue v. Eighth Judicial District (1978), 175 Mont. 509, 511, 575 P.2d 65, 66; Pelke, 389 P.2d at 169.

In Benjamin, the record contained sufficient evidence to establish that the sentencing court, prosecutor, and defense counsel all apparently failed to recognize that the sexual offender program lasted two years after assuring the defendant he would be incarcerated for only one year pursuant to a plea agreement. We affirmed the District Court’s holding that the plea was based on error, and affirmed the court’s order releasing defendant on parole after one year. Benjamin, 792 P.2d at 10. Similarly, in Gladue, we allowed the defendant to withdraw his earlier plea of guilty. There, the record contained sufficient evidence that the defendant had always maintained his innocence and pled guilty only after his attorney told him that he did not feel that he had a very good chance in a jury trial. The evidence indicated that the defendant felt that he could not prove himself innocent after the codefendant in the case had pled guilty. This Court held that such evidence raised serious questions about whether defendant’s guilty plea was given voluntarily and not allowing the defendant to withdraw the plea was an abuse of discretion. Gladue, 575 P.2d at 67.

In the case at bar, we hold that the District Court did not abuse its discretion in denying the defendant’s motion to withdraw his plea. Here, the record does not contain similar evidence of a fundamental mistake or strong inducement. The fundamental mistake complained of by Miller was the alleged omission of relatively minor points regarding the terms of his probation under the deferred sentences. Miller allegedly understood that such terms would have permitted him to travel freely from Montana into Wyoming, possibly own a firearm, and not require him to report to a probation officer. Considering the nature of these terms, the mistake alleged in this case does not amount to a “fundamental” mistake as in Benjamin, where the misunderstanding led the defendant to unknowingly subject himself to an additional year of incarceration. Nor can we find an abuse of discretion by the District court in holding that these relatively minor terms of probation, that Miller allegedly thought he would receive pursuant to the plea bargain agreement, were significant enough to induce him to plead guilty to a crime of which he was innocent. The District Court did not abuse its discretion in refusing to allow the defendant to withdraw his plea of guilty.

AFFIRMED.

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


author: JUSTICE HUNT

text:
    MONTANA BANK OF ROUNDUP, N. A., Plaintiff and Appellant, v. MUSSELSHELL COUNTY BOARD OF COMMISSIONERS, Musselshell County, and Department of Revenue, Stateof Montana, Defendants and Respondents.
    No. 90-097.
    Submitted Oct. 30, 1990.
    Decided Apr. 30, 1991.
    248 Mont. 199.
    810 P.2d 1192.

      Thomas E. Towe, Billings, for plaintiff and appellant.
    Eric Fehlig, Dept, of Revenue, Helena, Vicky Krause, Musselshell County Atty., Roundup, for defendants and respondents.
   JUSTICE HUNT

delivered the Opinion of the Court.

The Montana Bank of Roundup appeals from an order of the Fourteenth Judicial District Court, granting summary judgment in favor of Musselshell County and the Department of Revenue and denying summary judgment to the Montana Bank of Roundup.

We affirm.

Appellant and Respondents have raised several issues in this appeal, but we need only resolve two of these to decide the questions presented by the parties. These are:

1. Whether the Bank should have been permitted to proceed on a claim for a tax refund pursuant to § 15-16-601, MCA, after having been denied its claim for a refund under § 15-1-402, MCA.

2. Whether the Department of Revenue was prohibited from taxing federal obligations for the years 1969 to 1973.

For the tax years 1969 through 1973, the former State Board of Equalization, predecessor of the Department of Revenue (DOR), assessed and collected a bank shares tax from the Montana Bank of Roundup (Bank). In 1974, the DOR audited the Bank for tax years 1969 through 1974 and determined that the Bank had misrepresented to the taxing authorities the value of the Bank’s shares for tax years 1969 through 1973. On or about September 19, 1974, the DOR issued a reassessment, increasing the taxable value of the Bank’s shares. On November 21, 1974, the Musselshell County Treasurer assessed a bank shares deficiency tax in the amount of $82,179.

Just prior to the DOR’s 1974 audit of the Bank, the Bank appealed its 1973 bank shares assessment to the Musselshell County Tax Appeal Board and the State Tax Appeal Board (STAB), and then sought judicial review of the STAB decision in District Court in Lewis and Clark County. The District Court judgment permitted the Bank to deduct reserves for bond losses and real estate. The DOR appealed the order of the District Court, which was affirmed in part and reversed in part in Montana National Bank of Roundup v. Department of Revenue, 167 Mont. 429, 539 P.2d 722 (1975). No judgment was entered in Lewis and Clark County on this cause.

On May 20,1976, the Bank paid $90,621 under protest, the amount representing the bank shares tax deficiency assessed in November of 1974, plus additional penalties and interest accrued.

On July 2, 1976, the Bank filed a complaint in Lewis and Clark County seeking refund of the May 20, 1976, payment. Venue was subsequently transferred to Musselshell County. On May 8, 1978, Musselshell County District Court dismissed the cause. On appeal to this Court, we affirmed the decision of the District Court in an order, dismissing the appeal for lack of jurisdiction for failure to timely serve the Musselshell Comity Treasurer, and for mootness, the protested funds having already been distributed. That order is unreported.

The Bank then submitted a claim dated April 14, 1980, to the Musselshell County Commissioners, seeking refund of the bank shares tax deficiency, interest and penalty paid under protest by the Bank in 1976. The Commissioners denied the claim by correspondence dated April 21,1980, on the grounds that the claim had already been litigated, and the Musselshell County District Court and the Montana Supreme Court had determined that the County was not required to make a refund. The Bank submitted an amended claim for refund which was denied on December 15, 1980, for the same reasons that the April claim had been denied.

On January 7, 1981, the Bank filed a complaint in the present cause seeking refund of the bank shares tax deficiency for the years 1969 through 1973 and also for a refund of the original bank shares tax assessment collected for the years 1969 through 1973. The Bank stated in its briefs that it invoked the District Court’s jurisdiction pursuant to the provisions of § 15-16-601, MCA. The Bank claimed the Commissioners had erred as a matter of law when they denied the Bank’s claim for refund on April 21, 1980, and again denied the amended claim on December 15, 1980.

The District Court entered judgment against the Bank on December 28, 1989, holding essentially as follows:

1. The County Commissioners did not err when they denied the refund claims on April 21, 1980, and on December 15,1980, because the Supreme Court order (unreported) of January 17, 1979, had determined that the Bank’s claim for refund was moot.

2. No evidence supported the Bank’s allegation that the assessments for tax years 1969 through 1973 or the deficiency assessment were either erroneously or illegally applied.

3. The case of Montana National Bank of Roundup v. Department of Revenue, 167 Mont. 429, 539 P.2d 722 (1975), was never followed by a judgment allowing a deduction of the value of the real property, so the holding of this Court on January 17, 1979, that the issue of the refund was moot, controlled.

4. The transfer of the stock of the Bank’s holding company, sixteen months prior to the bank shares tax deficiency assessment, did not defeat the right of the County to collect the tax deficiency.

5. The holding in Montana Bankers Association v. Montana Department of Revenue, 177 Mont. 112, 580 P.2d 909 (1978), that the State could not tax the value of federal obligations in the computation of the bank shares tax was res judicata to the parties to that cause only and was a holding not clearly foreshadowed and so not entitled to retroactive application.

There are two taxes at issue in this case. The first payment is the original bank shares tax for taxable years 1969 through 1973. The original payments for years 1969 through 1972 were not paid under protest, and this is the first time they have been at issue.

The second tax at issue is the 1974 reassessed tax paid under protest. The Bank action to recover those monies under the protest statute, § 15-1-402, MCA, was ultimately dismissed by this Court in Roundup National Bank v. Dept, of Revenue, No. 14389, January 17, 1979. The Bank then filed a claim for refund and an amended claim for refund with the Musselshell County Board of Commissioners and the DOR under § 15-16-601, MCA, the statute allowing relief for illegally or erroneously collected taxes. These claims were denied by the Commissioners on December 15, 1980, on the grounds that the issue had already been litigated (under § 15-1-402, MCA). The Bank then filed its present complaint for the original and the reassessed taxes under § 15-16-601, MCA, claiming that the remedies of § 15-1-402, MCA, and § 15-16-601, MCA, may be pursued alternatively.

The first issue before this Court is whether the Bank should have been permitted to proceed on a claim for a tax refund pursuant to § 15-16-601, MCA, after having been denied its claim for a refund under § 15-1-402, MCA.

The Bank originally filed a claim for refund for the taxes paid under protest pursuant to § 15-1-402, MCA (formerly § 84-4502, R.C.M.). Section 15-1-402, MCA, states in pertinent part:

“(1) The person upon whom a tax or license fee is being imposed may proceed under 15-1-406 or may, before the tax or license fee becomes delinquent, pay under written protest that portion of the tax or license fee protested.
“(2) After having exhausted the administrative appeals available under Title 15, chapters 2 and 15, a person or his legal representative may bring an action in any court of competent jurisdiction against the officers to whom said tax or license fee was paid or against the county or municipality in whose behalf the same was collected and the department of revenue.”

After that action was dismissed, the Bank filed for refund for the original and the reassessed tax under § 15-16-601, MCA, which provides in part:

“(l)(a) Any taxes, interest, penalties, or costs paid more than once or erroneously or illegally collected or any amount of tax paid for which a taxpayer is entitled to a refund under 15-16-612 or 15-16-613 or any part or portion of taxes paid which were mistakenly computed on government bonus or subsidy received by the taxpayer may, by order of the board of county commissioners, be refunded by the county treasurer.”

The District Court held that since the Bank had originally pursued a claim pursuant to § 15-1-402, MCA, which was subsequently dismissed, it could not file a claim for refund under § 15-16-601, MCA.

The Bank appeals from this determination based on the language of § 15-16-602, MCA, that provides:

“Section 15-16-601 shall not be deemed or construed to be in conflict with the provisions of part 4 of chapter 1, but 15-16-601 and the provisions of such part 4 shall provide and afford concurrent remedies.” (Emphasis added.)

The Bank claims that the plain language of § 15-16-602, MCA, permits it to proceed under § 15-16-601, MCA, after it lost on procedural grounds under § 15-1-402, MCA. The Bank relies on Uptegraft v. Dome Petroleum Corp., 764 P.2d 1350 (Okla. 1988), to assert that “the doctrine of election of remedies does not apply where the available remedies are concurrent or cumulative and consistent.”

Our reading of that case is that the remedies must be pursued simultaneously, and when a judgment is reached, the remedy sought in the alternative is terminated by the first judgment. As the Oklahoma Court said in Uptegraft, 764 P.2d at 1355:

“Where the remedies are alternate or concurrent there is no bar until satisfaction of the judgment has been obtained. The plaintiff may pursue concurrent remedies at the same time -until there is a satisfaction of the judgment.” (Emphasis added.)

The Bank here did not pursue its remedies at the same time. It received an unfavorable judgment on one theory and then tried another for a more favorable result.

The issue of the relationship between the “protest” statute and the “erroneously collected” statute was addressed by this Court in Department of Revenue v. Jarrett, 216 Mont. 189, 700 P.2d 985 (1985). In Jarrett, the value of the taxpayer’s lot was erroneously assessed. The taxpayer obviously did not protest when he paid his taxes for the years before the mistake was detected. When the mistake was discovered, he was permitted to collect the overpayment under § 15-16-601, MCA. This Corut stated:

“Clearly, § 15-16-601, MCA, was not meant to be used in lieu of the § 15-1-402, MCA, requirements of paying under protest, but when the recourse of § 15-1-402, MCA, is not available, a taxpayer can obtain a refund under § 15-16-601, MCA.”

Jarrett, 216 Mont. at 194, 700 P.2d at 988.

Here, the Bank tried to use § 15-16-601, MCA, because its remedy under § 15-1-402, MCA, had failed. As we stated in Jarrett, it is only when § 15-1-402, MCA, is not available as a remedy that § 15-16-601 MCA, may be used in place of it. The Bank, having sought a remedy under § 15-1-402, MCA, and having failed in that effort, is now prohibited from seeking such remedy under § 15-16-601, MCA.

Section 15-1-402, MCA, provides for an action in any court of competent jurisdiction; § 15-16-601, MCA, provides for a refund from the county treasurer pursuant to an order from the county commissioners. The concurrent remedies statute intended that taxpayers against whom a tax had been illegally or erroneously collected would not lose the option of pursuing relief through the county government. It also permits the taxpayer to whom various options are available to choose among statutory remedies. It does not provide for a taxpayer to consecutively try different methods of relief. To hold otherwise would destroy the rule of res judicata in tax matters. We affirm the District Court on this issue.

The second issue presents us with the question of whether the Department of Revenue was prohibited from taxing federal obligations for the years 1969 through 1973. The Bank claims that pursuant to this Court’s decision in Montana Bankers Association v. Montana Department of Revenue, 177 Mont. 112, 580 P.2d 909 (1978), the federal obligations taxed by the State between 1969 and 1973 were exempt from taxation and that the assessment of them was therefore illegal.

Retroactive application of a judicial interpretation is guided by the principles enunciated in LaRoque v. State, 178 Mont. 315, 583 P.2d 1059 (1978). That case states:

“First, the decision to be applied nonretroactively must establish a new principle of law either by overruling established precedent on which litigants have relied or by deciding an issue of first impression whose resolution was not clearly foreshadowed ... Finally, the inequity of retroactive application must be considered, for where substantial inequity will result by such application, a ruling of nonretroactivity is proper.”

LaRoque, 178 Mont. at 319, 583 P.2d at 1061. The District Court here held that Montana Bankers had indeed established a new principle of law deciding an issue of first impression whose resolution was not clearly foreshadowed. This decision is supported by the background outlined in Montana Bankers.

The 1959 amendment to 31 U.S.C. § 742, the federal exemption statute, states:

“This exemption extends to every form of taxation that would require that either the obligations or the interest thereon, or both, be considered, directly or indirectly, in the computation of the tax ...” Montana Bankers explains that the plain language of the statute “provides an exemption to every form of state taxation that requires United States obligations or interest to be considered directly or indirectly in the computation of the tax.” Montana Bankers, 177 Mont. at 117, 580 P.2d at 912. This Court further noted:
“We note that neither the applicable Montana statutes nor administrative regulations expressly authorize a deduction for the value of federal obligation in computing the bank shares tax. However, the Montana statute must be construed as permitting such deduction and administrative regulations to the contrary must fall. Any other construction would violate the federal exemption statute and be unconstitutional under the Supremacy Clause of the United States Constitution.”

Montana Bankers, 177 Mont. at 118, 580 P.2d at 913.

While the 1978 decision does interpret a 1959 federal law, the language of the Court indicates that the State of Montana had not previously considered the effect of the law on state taxation formulas. It was a matter of first impression whose resolution was not clearly foreshadowed.

We hold that, under the doctrine of nonretroactivity, the exemption for federal obligations does not apply prior to 1978.

The parties to this appeal raise other issues concerning fines and penalties, bank ownership, “escaped” taxable property, and exhaustion of remedies. However, because we hold that the remedy of § 15-16-601, MCA, is not available to the Bank, we need not reach the appropriateness of the reassessed taxes. Similarly, we need not reach the issue of exhaustion of administrative remedies as raised by the respondent DOR.

Affirmed.

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