text:
    In re the MARRIAGE OF GARELD E. COX, Petitioner and Respondent, and PENNY E. COX, Respondent and Appellant.
    No. 86-169.
    Submitted on Briefs Jan. 22, 1987.
    Decided March 24, 1987.
    As Amended on Denial of Rehearing May 26, 1987.
    736 P.2d 97.

      Richard J. Carstensen, Billings, for respondent and appellant.
    Torger Oaas, Lewistown, for petitioner and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Penny Cox appeals from orders of the District Court of the Tenth Judicial District, Fergus County, raising jurisdiction and custody modification issues arising out of the marriage dissolution and child custody hearing below. We affirm.

The issues are:

1. Was wife’s notice of appeal filed too late to have this Court review the jurisdiction issues raised?

2. Did the District Court err in its jurisdiction rulings?

3. Did the District Court err in denying wife a modification hearing?

Gareld E. Cox (husband) and Penny E. Cox (wife) were married in 1978 and had one child named Kenneth Cox (Kenneth) of that marriage. In January 1982, husband filed a dissolution petition with the District Court and wife filed a petition for custody of minor child with the District Court. The petitions were consolidated in the case below. In April 1982, wife also filed a petition for divorce and an affidavit for the purpose of service by publication in a New Mexico court, neither of which mentioned the pending Montana case. In July 1982, the New Mexico court purported to dissolve the parties’ marriage and grant custody of Kenneth to wife. Husband was not present or represented at that hearing. In June 1983, the Montana District Court dissolved the marriage between the parties and awarded custody of Kenneth to husband. Both parties were represented at that hearing, although wife was not present.

In December 1984, the New Mexico court concluded that wife’s affidavit for service by publication had been false and misleading, that wife had not exercised sufficient inquiry in attempting to locate husband, that the New Mexico proceedings should have been stayed due to the pending Montana proceeding, that the New Mexico court had not obtained jurisdiction over husband prior to the entering of its decree, and that the New Mexico court was without authority to enter its decree. The New Mexico court then set aside its decree with directions to have Kenneth delivered to husband pursuant to the Montana decree.

Wife moved to vacate the Montana District Court’s findings, conclusions, and decree, essentially challenging jurisdiction of the District Court under Sections 40-4-104 and 40-4-211, MCA, and requesting a child custody modification. The District Court denied wife’s motion on all grounds in two orders filed in March and July of 1985. In September 1985, the District Court issued a subsequent order reaffirming its earlier orders. In December 1985, wife again filed a motion in the District Court challenging jurisdiction of the District Court and requesting a modification of the custody order. In a March 1986 minute entry, the District Court concluded that it would not take testimony on the modification or custody issues because those issues had already been decided. However, the court stated it would hear testimony regarding visitation. It is from this order that wife appeals.

I

Was wife’s notice of appeal filed too late to have this Court review the jurisdiction issues raised?

Husband maintains that wife filed her notice of appeal after the 30 day time limit for appeals found in Rule 5, M.R.App.Civ.P. Specifically, husband maintains that wife’s jurisdiction challenges were denied by a District Court order on July 12, 1985 and her notice of appeal was filed on April 10, 1986. Thus, the 30 day time limit had passed and her jurisdiction issues on appeal should be dismissed.

Although the District Court decided the jurisdiction issues, in its July 1985 order, wife again raised this issue in her motion of December 11, 1985. It is a well settled principle of law that lack of subject matter jurisdiction may be raised at any time. Rule 12(h)(3), M.R.Civ.P., and Corban v. Corban (1972), 161 Mont. 93, 504 P.2d 985. Therefore, the wife had 30 days from the March 10,1986, effective dismissal of her subject matter jurisdiction motion to perfect her appeal. Her notice of appeal was filed on time and thus we will review the jurisdiction issues raised.

II

Did the District Court err in its jurisdiction rulings?

Wife maintains there were two jurisdictional rulings made in error in this case. First, wife argues that the court did not have jurisdiction over the dissolution proceeding pursuant to Section 40-4-104(a), MCA. Second, wife argues that the court did not have jurisdiction over Kenneth pursuant to Section 40-4-211, MCA.

On the first issue, wife maintains that husband was not a resident of Montana when he filed for dissolution and that fraud was committed on the court by the husband when he filed his petition for dissolution and stated:

“That petitioner has been a resident of the State of Montana for more than 120 days next proceeding the filing of this petition, however, he has not been physically present in this State for that period of time.”

Wife maintains that this statement is false due to the amount of time husband had been in New Mexico prior to the filing of the petition. Apparently, husband had spent about a month and a half in New Mexico during this 120 day period.

We point out that Section 40-4-104(a), MCA, only requires the court to find one of the parties was domiciled within Montana “for 90 days next preceding the making of the findings” (emphasis added). Both sides agree that husband was domiciled in Montana for 90 days preceding the dissolution order and findings. Therefore, the District Court concluded that it had jurisdiction over the dissolution pursuant to Section 40-4-104(a), MCA. We affirm that conclusion. There is no evidence of fraud upon the court.

On the second issue, wife argues that the District Court did not have jurisdiction over Kenneth pursuant to Section 40-4-211(l)(a)(ii), MCA, which provides in pertinent part:

“A court of this state competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
“(a) this state:
“(ii) had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reason and a parent or person acting as parent continues to live in this state;”

Wife argues that under this statute New Mexico was the proper forum to decide Kenneth’s custody. However, the record shows that the conditions found in Section 40-4-211, MCA, have been met and that the District Court properly had jurisdiction over the child custody proceeding. After having lived in Montana for several years, wife and Kenneth went to New Mexico on August 27, 1981. Husband filed for the dissolution of the marriage, asking for the custody of Kenneth, on January 27, 1982. Thus, Montana was Kenneth’s “home state within 6 months before commencement of the proceedings.” Section 40-4-211, MCA. Second, there is no question that Kenneth was absent from the state because of his retention by wife who was claiming his custody. Therefore, the requirements found in Section 40-4-211, MCA, have been satisfied and the court had jurisdiction over the child custody proceeding pursuant to that statute.

Finally, wife asserts that jurisdiction should be declined pursuant to Section 40-7-109(1), MCA, which provides:

“If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in similar reprehensible conduct, the court may decline to exercise jurisdiction if this is just and proper under the circumstances.”

Wife alleges that husband wrongfully took Kenneth from New Mexico and brought him to Montana. The record does not demonstrate a wrongful taking. The actions of the father taking Kenneth to Montana from New Mexico do not in and of themselves demonstrate a wrongful taking. Section 40-7-109, MCA, is discretionary. The District Court concluded there was not a wrongful taking and assumed jurisdiction. We cannot find an abuse of its discretionary power by the District Court. Accordingly, we affirm the District Court’s conclusion that it had jurisdiction over the child custody proceeding.

III

Did the District Court err in denying wife a modification hearing?

Wife argues she is entitled to another hearing to consider whether the custody decree should be modified pursuant to Section 40-4-219(1), MCA, which provides:

“The court may in its discretion modify a prior custody decree if it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child and if it further finds that:
“(a) the custodian agrees to the modification;
“(b) the child has been integrated into the family of the petitioner with consent of the custodian;
“(c) the child’s present environment endangers seriously his physical, mental, moral, or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him; or
“(d) the child is 14 years of age or older and desires the modification.”

Wife recognizes that the modification is discretionary with the District Court, but believes new facts have been presented that show Kenneth’s “present environment endangers seriously his physical, mental, moral or emotional health.” Although wife was represented by counsel in the dissolution hearing on June 20, 1983, wife was not present and no evidence was presented from her viewpoint as to the best interests of Kenneth. Wife maintains that various affidavits filed by her in 1985 and 1986 provide the necessary factual basis for the court to hold a hearing on the modification of custody. In particular she refers to a child psychologist’s report.

Section 40-4-220, MCA, provides that the court “shall deny the motion unless it finds adequate cause for hearing the motion is established by the affidavits . . .” The affidavits provided by wife essentially state that Kenneth has been moved about a number of times by his father, that he has had his school interrupted, and that he has spent extended periods of time with his grandmother. The husband countered with affidavits which indicate Kenneth is presently living in a healthy environment and is a “cheerful” child. The psychologist’s report does not recommend a custody arrangement, but does clearly show that the custody litigation over Kenneth is having an adverse affect on him. We note the concerns of the psychologist with regard to Kenneth’s hyperactivity and his recommendation that Kenneth be reexamined at the Child Study Center. For their assistance, we call this to the attention of both parties.

After careful consideration, we conclude the District Court has not abused its discretion in denying the motion for a modification hearing.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, HUNT, SHEEHY and GULBRANDSON concur.


source: Caselaw Access Project

author: MR. JUSTICE WEBER

license: Public Domain

text:
    In the MATTER OF M.J.P., Respondent.
    No. 86-518.
    Submitted on Briefs Feb. 13, 1987.
    Decided March 24, 1987.
    734 P.2d 689.

      Allen Smith, Jr., Warm Springs, for appellant.
    Nick Rotering, Dept, of Institutions, Helena, for respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

M.J.P. was involuntarily committed to the Montana State Hospital. Prior to the expiration of the commitment period, a petition was filed with the District Court of the Third Judicial District, Deer Lodge County, requesting M.J.P.’s commitment to be extended for a period not to exceed six months. After a hearing, the District Court extended the commitment for six months. M.J.P. appealed. We affirm.

The issues are:

1. Was there sufficient evidence to support the finding of the District Court that M.J.P. was seriously mentally ill as defined by Section 53-21-102, MCA?

2. Did the District Court err in committing M.J.P. to the Montana State Hospital rather than to a less restrictive community placement for the treatment of her mental illness?

M.J.P. was committed to the Montana State Hospital (hospital) on May 7, 1986, primarily because of threats she had made on her treating psychologist’s life. Pursuant to Section 53-21-128, MCA, the psychologist filed a petition on July 24, 1986, requesting an extension of M.J.P.’s commitment for a period not to exceed six months. M.J.P. moved to dismiss the petition.

The hearing on the petition was held on September 12, 1986, and the psychologist testified regarding M.J.P.’s mental illness. The District Court found M.J.P. to be seriously mentally ill and extended her commitment to the hospital for a period of six months. M.J.P. appealed.

I

Was there sufficient evidence to support the finding of the District Court that M.J.P. was seriously mentally ill as defined by Section 53-21-102, MCA?

In pertinent part, the definition of “seriously mentally ill” found at Section 53-21-102(14), MCA, provides:

“ ‘Seriously mentally ill’ means suffering from a mental disorder which has resulted in self-inflicted injury or injury to others or the imminent threat thereof or which has deprived the person afflicted of the ability to protect his life or health . . . .”

Simply put, the State must prove in this case that M.J.P. suffered from a mental disorder and that the mental disorder: (1) resulted in self-inflicted injury or injury to others; (2) resulted in the imminent threat of self-inflicted injury or injury to others; or (3) deprived her of the ability to protect her life or health. M.J.P. concedes in her brief that the State has proven to a reasonable medical certainty that she suffers from a mental disorder. The crux of the second element in this case is whether the evidence supported a finding that M.J.P. was an imminent threat to herself or others.

The evidence consists of the testimony of M.J.P.’s psychologist and a written report submitted by him to the court prior to the hearing. That evidence shows that M.J.P. was dangerous to herself and others at the time she was admitted to the hospital in May 1986. At the time of her admission, M.J.P. was depressed and was making suicidal, as well as homicidal, threats. She admitted that if she were allowed to get out, she would buy a gun to kill her examining psychologist. In his report, her psychologist concluded:

“[M.J.P.] is seriously mentally ill and imminently dangerous to others. She has established a victim which happens to be this examiner and a method of doing me bodily harm, that being purchasing a gun and killing me.”

We conclude that the evidence presented does support a finding that M.J.P. was an imminent threat of physical injury to herself or others. We have considered M.J.P.’s argument that because the threats were made upon her admittance to the hospital in May and had not been repeated in the time period preceding the petition in July, the threats were not “imminent”. However, we conclude that the threats were “sufficiently recent in time as to be material and relevant as to the respondent’s present condition.” Section 53-21-126(2), MCA. In addition, the psychologist testified that M.J.P. was on lithium, ascendin, premarin and a thyroid medication. He pointed out that the lithium and ascendin are the treatment strategies for the major depression she experiences. He further emphasized that she had been extremely resistant to any therapeutic intervention, including supervision. This testimony is a reasonable basis for the conclusion of the District Court that M.J.P. should be kept under supervision so that she would properly continue on her medication. We affirm the District Court on this issue.

II

Did the District Court err in committing M.J.P. to the Montana State Hospital rather than to a less restrictive community placement for the treatment of her mental illness?

M.J.P. maintains that the District Court erred in committing her to the hospital, citing Section 53-21-127(2)(c), MCA, which provides:

“In determining which of the above alternatives to order, the court shall choose the least restrictive alternatives necessary to protect the respondent and the public and to permit effective treatment. The court shall consider and shall describe in its order what alternatives for treatment of the respondent are available, what alternatives were investigated, and why the investigated alternatives were not deemed suitable.”

M.J.P. argues that the testifying doctor’s recommendation for the commitment to be extended six months was based on her being placed in a group home and then graduated into an apartment under supervision. Therefore, she argues, the testimony establishes the least restrictive environment for M.J.P. would have been a structured community placement, not the hospital. What M.J.P. fails to recognize is the doctor’s recommendation in his written report of July 17, 1986:

“It is hereby recommended that [M.J.P.] be recommitted to Montana State Hospital for a period not to exceed six months. It is further recommended that if deemed appropriate, she be conditionally released to the structured supervision of the mental health center in Helena within the commitment period asked.”

The District Court committed M.J.P. to the hospital, but ordered that if the hospital staff believes she could be released on a conditional release during the six month extension, then she should be so released. The State points out that the District Court’s plan ensures the patient will cooperate with local mental health authorities when she is released because that release is conditioned upon her cooperation. The cooperation referred to pertains to the patient taking her medication, participating in counseling, and any other conditions that may be necessary to prevent a relapse.

After careful consideration, we conclude that the District Court did not err in committing M.J.P. to the Montana State Hospital. The court considered and rejected alternatives other than the commitment ordered. The requirements of Section 53-21-127, MCA, have been met.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, GULBRANDSON, SHEEHY and HUNT concur.


author: MR. JUSTICE GULBRANDSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DENNIS JAMES COLLINS, Defendant and Appellant.
    No. 86-551.
    Submitted on Briefs Feb. 5, 1987.
    Decided March 24, 1987.
    734 P.2d 686.

      Philip F. Walsh, White Sulphur Springs, for defendant and appellant.
    Mike Greely, Atty. Gen., Kathy Seeley, Asst. Atty. Gen., Helena, John V. Potter, Jr., Co. Atty., White Sulphur Springs, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Dennis James Collins appeals his conviction in Meagher County District Court for operating a motor vehicle while adjudged a habitual traffic offender. Three issues are raised on appeal: (1) whether the language of the information was sufficient to apprise Collins of the nature of the charge brought against him; (2) whether the District Court had subject matter jurisdiction of the case; (3) whether the information was duplicitous in that it charged two separate criminal offenses. We affirm.

In May 1986, Collins was cited for operating a motor vehicle as a declared habitual offender under Section 61-11-213, MCA. The matter was transferred to the District Court for trial and an information was filed by the State. The relevant part of the information states as follows:

“[a]ccuses the Defendant, Dennis James Collins, with the crime of driving a motor vehicle on a public highway of this State at a time when his privilege to do so was revoked in violation of Section 61-5-212, Montana Codes Annotated, with increased penalty provisions as provided in Section 61-11-213 Montana Codes Annotated, by reason of the fact that the said Defendant had been adjudged an habitual traffic offender, which judgment was still in effect, and more particularly that on May 25, 1986, at approximately 11:53 p.m., the said Dennis James Collins purposely and knowingly drove, operated and was in control of a 1973 Chevrolet Nova automobile on U. S. Highway 12 and within the City of White Sulphur Springs, Meagher County, Montana, at a time when the privilege of the said Dennis James Collins to operate a motor vehicle had been revoked and the Defendant had been adjudged an habitual traffic offender by order of the District Court of Meagher County dated April 3, 1984 in Cause No. 5936, which adjudication as an habitual traffic offender was still in effect.
“The penalty upon conviction of the offense charged is imprisonment for a period of not more than one year or a fine of not more than $1,000, or both, as provided in Section 61-11-213 Montana Codes Annotated.”

At trial Collins did not dispute the allegation that he had been adjudged a habitual traffic offender or that he had been driving a motor vehicle at the time he was cited. He chose to defend on the basis of necessity. As will be shown by citation to the relevant statute below, necessity is a defense only to a person adjudged to be a habitual traffic offender. A jury found Collins guilty of operating a motor vehicle as a declared habitual offender. The court fined Collins $1,000 and sentenced him to one year in the county jail with all but 120 days suspended.

Section 61-11-213, MCA, reads as follows:

“Any person found to be an habitual traffic offender under this part, and who thereafter operates a motor vehicle in this state while the order of the court prohibiting such operation remains in effect, shall be guilty of a misdemeanor, and upon conviction thereof shall be imprisoned for a period of not more than 1 year or fined not more than $1,000, or both. However, in cases wherein the prohibited operation of a motor vehicle by an habitual traffic offender is necessitated in a situation of extreme emergency in order to save life, limb, or property, he shall not be deemed guilty of a violation under this part.”

Collins first argues that the information was insufficient and thereby failed to apprise him of the charge. It is interesting to note that in his brief, Collins makes significant concessions as to his knowledge and awareness of the charge being brought against him. We quote directly from the brief:

“Mr. Collins concedes that he was not completely surprised by the particular evidence admitted against him at trial. The officer who originally ticketed Mr. Collins charged him with driving while adjudged an habitual traffic offender. The case was tried by respective counsel as if it were an habitual offender case. Mr. Collins’ counsel admitted as much in his motions to the Court after the close of trial evidence (Transcript of Motions, p. 5). The evidence adduced by the prosecution at trial was generally known and expected by Mr. Collins.”

During the argument on Collins’ motions to dismiss, the following exchange took place:

“THE COURT: Well, are you saying that he [the State] stated an offense in the information that’s different from what he [Collins] is being tried with today? You don’t deny the fact that the trial today has to do with driving as a habitual traffic offender while he doesn’t have any license?
“MR. WALSH: No, I think we all understand that.”

In addition, the jury instructions clearly show that Collins was tried on a charge of operating a motor vehicle while an adjudged habitual traffic offender. The general rule is that when the facts, acts and circumstances are set forth with sufficient certainty to constitute an offense, it is not a fatal defect that the complaint gives the offense an erroneous name. State v. Handy (Mont. 1986), [221 Mont. 365,] 719 P.2d 766, 768, 43 St.Rep. 897, 899, citing State v. Longneck (1981), 196 Mont. 151, 154, 640 P.2d 436, 438, and quoting State v. Schnell (1939), 107 Mont. 579, 585, 88 P.2d 19, 22. This means that an erroneous statutory reference will not invalidate the charge. Handy, 719 P.2d at 768.

While the State erroneously cited to Section 61-5-212, MCA, in the information, the facts and circumstances subsequently described in that same information unmistakably point to an alleged violation of Section 61-11-213, MCA. Further, the penalty provision of the information to which we cite tracks the language of Section 61-11-213, MCA. A person of common understanding would know that the State was charging a violation of Section 61-11-213, not Section 61-5-212. Collins admitted as much in his brief. Again, we reiterate the point that the name of a crime is controlled by the specific acts charged. State v. Schnell (1939), 107 Mont. 579, 88 P.2d 19. The information contained harmless error and was therefore sufficient to apprise Collins of the crime charged. See State v. Pearson (Mont. 1985), [217 Mont. 363,] 704 P.2d 1056, 1059, 42 St.Rep. 1253, 1256.

The second issue is whether the District Court had subject matter jurisdiction of the case. The jurisdictional statute in question is Section 61-11-214, MCA, which we quote in full:

“For the purpose of enforcing the provisions of this part, in any case in which the defendant is charged with operating a motor vehicle while his license to do so is suspended or revoked, or is charged with driving without a license, the court, before hearing such charge, shall ascertain whether the defendant has been adjudged an habitual traffic offender and by reason of that judgment is prohibited from operating a motor vehicle in this state. If the court determines that the defendant has been so adjudged and that that judgment remains in effect, the court shall certify the case to the district court of its jurisdiction for trial.”

Collins was charged with operating a motor vehicle while an adjudged habitual traffic offender. He was not charged with operating a motor vehicle while his license was suspended or revoked, or driving without a license and therefore no certification to district court was required. The District Court had subject matter jurisdiction over the case.

The third issue is whether the information was duplicitous in that it charged two separate criminal offenses. As stated previously, the information contained an erroneous reference to Section 61-5-212, MCA. However, the information clearly intended to charge Collins with driving while an adjudged habitual offender, and was interpreted as such by Collins. In addition, the jury was instructed that driving while one’s license is revoked is a lesser-included offense of driving while an adjudged habitual traffic offender. The jury was also informed that it could not find Collins guilty of any lesser-included offense if it found him guilty of driving while an adjudged habitual traffic offender. Finally, the jury was instructed that it could only convict Collins of one offense. We conclude that the information was not duplicitous.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and SHEEHY concur.


author: MR. JUSTICE GULBRANDSON MR. JUSTICE SHEEHY,

text:
    In the Matter of the SUSPENSION OF THE DRIVER’S LICENSE OF WAYNE BLAKE, Petitioner and Respondent, v. STATE OF MONTANA, Respondent and Appellant.
    No. 86-245.
    Submitted on Briefs Feb. 19, 1987.
    Decided March 30, 1987.
    735 P.2d 262.

      Mike Greely, Atty. Gen., Kimberly A. Kradolfer, Asst. Atty. Gen., Helena, Tom Scott, Co. Atty., Dillon, for respondent and appellant.
    Max A. Hansen, Dillon, for petitioner and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The State appeals an order of the Beaverhead County District Court granting Blake’s petition for a provisional or restricted driver’s license based upon hardship factors. The issue on appeal is whether a provisional or restricted license may be granted upon hardship factors. We affirm in part and reverse in part.

This is the second appeal of this action, the Court having previously taken up the case in Matter of Suspension of Driver’s License of Blake (Mont. 1986), [220 Mont. 27,] 712 P.2d 1338, 43 St.Rep. 143 (hereafter Blake I).

On October 10, 1984, Blake attended a club meeting in Dillon, Montana. After the business meeting, most of the members played cards and socialized. Blake admitted drinking four or five beers that night. Blake and a fellow club member, Parker, were the last members to leave the meeting. They drained several water pipes and locked the building before getting into their cars to drive home between 1:30 a.m. and 2:00 a.m.

Blake traveled north on Montana Street through downtown Dillon with Parker following. A police officer was driving south on Montana Street when he observed Blake driving erratically. The officer testified that Blake swerved in and out of his driving lane numerous times. Parker testified that Blake swerved just once. Blake claimed he swerved to avoid a pedestrian; however, neither the officer nor Parker claimed to see a pedestrian. The officer stopped Blake and administered several field sobriety tests, none of which were performed successfully. Blake was arrested for driving under the influence of alcohol and was taken to the police station where he refused to take a breathalyzer test. The officer seized Blake’s driver’s license and the State subsequently suspended Blake’s driving privileges for 90 days.

Blake appealed the suspension to District Court alleging the police lacked reasonable grounds (under Section 61-8-402, MCA) to believe he had been driving a vehicle while under the influence of alcohol. The trial judge held that: (1) the initial stop was illegal for the police lacked reasonable grounds to believe that Blake was operating a motor vehicle while under the influence of alcohol prior to the time Blake was stopped, and (2) since the initial stop was illegal, Blake’s driver’s license should not have been suspended. The State’s motion for rehearing was denied, the trial judge holding to his belief that the officer was not justified in making the investigatory stop.

On appeal we found that the trial judge failed to address the issues provided under the statute granting the appeal (Section 61-8-403, MCA). We held that the police officer had apparently met the statutory requirements by proving: (1) reasonable grounds to believe Blake was driving under the influence of alcohol, (2) that Blake was placed under arrest, and (3) that Blake refused to submit to the breathalyzer test. Blake I, 712 P.2d at 1341. We concluded that the District Court should have disposed of the case based upon the requirements of Section 61-8-403, MCA, and we intended to remand to the lower court for findings on that basis but instead we stated “[w]e remand the case for further hearings on whether the petitioner should be granted a restricted driving permit.” Blake I, 712 P.2d at 1341.

The trial judge interpreted this statement as a judicial broadening of Section 61-8-403, MCA, from a three part to a four part test so as to encompass the hardship aspects of a particular case:

“The Supreme Court remanded this cause for findings as to the following:
“1. Did the officer have reasonable grounds to believe petitioner had been driving a motor vehicle while under the influence of alcohol?
“2. Whether or not the petitioner was placed under arrest?
“3. Whether the petitioner refused to submit to a blood alcohol test?
“4. Whether petitioner should be granted a restricted driving permit?
“The issues have been briefed and submitted. From the record, the Court makes the following:
“FINDINGS OF FACT
“1. Following the stop, the officer had reason to believe petitioner had been driving while under the influence of alcohol;
“2. Petitioner was placed under arrest;
“3. Petitioner refused to take a blood alcohol test;
“4. Petitioner’s driving privileges were suspended by the Motor Vehicle Division under Section 61-8-402 on October 14, 1984, and [the license] was returned pursuant to an order of this Court on December 1, 1984. He was without a license a total of 48 days.
“5. The companion criminal action in the Dillon City Court charging the petitioner with driving while intoxicated was dismissed on motion of the City on April 15, 1985.
“6. The records show without dispute that petitioner is by occupation a truck driver and the sole support of a young family consisting of a wife and two small children. Without a driver’s license he would be without employment, and his family would in all probability become a public charge.”

From his reading of Blake I, the trial judge concluded that Blake was entitled to a provisional or restricted driver’s license for employment purposes for the remaining 42 days of the suspension:

“I
“The summary suspension of the petitioner’s driving privileges on October 14, 1985 was under the statute, as interpreted by the Supreme Court in this cause, proper and is hereby affirmed. Petitioner is given credit for 48 days on the summary 90-day suspension. The Court’s previous stay order is vacated.
“II
“That pursuant to the Supreme Court’s mandate herein, the Court finds that the petitioner is entitled to an appropriate provisional or restricted driver’s permit for the balance of 42 days of his suspension. The restricted license shall be on such reasonable terms and conditions as the Motor Vehicle Division shall impose consistent with the spirit and intent of this order; to restrict his operation of a motor vehicle during the remaining period of the suspension to the driving necessary in the course of his employment.”

The suspension or revocation of a driver’s license is a civil proceeding. Lancaster v. Dept. of Justice (Mont. 1985), [218 Mont. 97,] 706 P.2d, 126, 128, 42 St.Rep. 1425, 1427. A suspension of driving privileges serves the purpose of protecting the unsuspecting public. In Re France (1966), 147 Mont. 283, 411 P.2d 732.

We recently discussed what is commonly called the implied consent statute in Matter of Orman (Mont. 1986), [224 Mont. 332,] 731 P.2d 893, 894, 43 St.Rep. 2228, 2230.

“Section 61-8-402, MCA, in substance provides that any person who operates a vehicle upon the roads of this state shall be deemed to have given consent to a chemical test of his breath for the purpose of determining the alcoholic content of his blood if arrested by a police officer for driving under the influence of alcohol.”

Subsections (3) and (5) (a) of Section 61-8-402, MCA, read as follows:

“(3) If a resident driver under arrest refuses upon the request of a peace officer to submit to a chemical test designated by the arresting officer as provided in subsection (1) of this section, none shall be given, but the officer shall, on behalf of the department, immediately seize his driver’s license. The peace officer shall forward the license to the department, along with a sworn report that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public, while under the influence of alcohol and that the person had refused to submit to the test upon the request of the peace officer. Upon receipt of the report, the department shall suspend the license for the period provided in subsection (5).
“(5) The following suspension and revocation periods are applicable upon refusal to submit to a chemical test:
“(a) upon a first refusal, a suspension of 90 days with no provision for a restricted probationary license. (Emphasis added.)”

As we stated in Orman, 731 P.2d at 894, 43 St.Rep. at 2230:

“Section 61-8-403, MCA, controls the appeal from the suspension of a license to the district court and in part limits the issues to be considered by the court as follows:
“ ‘. . . the court shall take testimony and examine into the facts of the case, except that the issues shall be limited to whether a peace officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public, while under the influence of alcohol, whether the person was placed under arrest, and whether such person refused to submit to the test. The court shall thereupon determine whether the petitioner is entitled to a license or is subject to suspension as heretofore provided.’ (Emphasis added.)”

The function of this Court is simply to ascertain and declare what in terms or in substance is contained in the statutes and not to insert what has been omitted. Matter of Estate of Baier (1977), 173 Mont. 396, 567 P.2d 943. Where the language of a statute is plain, unambiguous, direct, and certain, the statute speaks for itself. State ex rel. Palmer v. Hart (1982), 201 Mont. 526, 655 P.2d 965. Section 61-8-402, MCA, is patently clear that when a police officer has reasonable grounds to believe a person was driving or in actual physical control of a vehicle while under the influence of alcohol and the person refuses to take a chemical test, the State shall automatically suspend that person’s driver’s license for 90 days upon first refusal. More importantly, the statute explicitly states that the driver will not be entitled to a restricted probationary license. This Court is not at liberty to make additions to a statute, for to do so would interfere with the domain of the legislature.

As we said in Orman, the driver has the right to appeal the suspension to the District Court under Section 61-8-403, MCA. The statute limits the inquiry to: (1) whether the police officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public, while under the influence of alcohol, (2) whether the person was placed under arrest, and (3) whether such person refused to submit to the test.

Section 61-8-403, MCA, does not grant authority to the trial judge to consider the issue of hardship as a mitigating factor and does not give the judge the authority to grant a restricted or probationary driver’s license. The final sentence in the statute reads: “The court shall thereupon determine whether the petitioner is entitled to a license or is subject to suspension as heretofore provided.” This means that a court must determine if the license suspension was proper under the three part test of Section 61-8-403, MCA. On remand, the District Court did apply the three part test and found that Blake’s license was properly suspended. We affirm the District Judge’s application of the test and his decision to suspend Blake’s driving privileges. We reverse his decision that Blake be granted a provisional or restricted license for employment purposes.

Affirmed in part, reversed in part.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, HARRISON, WEBER concur.

MR. JUSTICE SHEEHY,

dissenting:

In this case Wayne Blake is guilty of no crime. The purported charge against him was dismissed on the motion of the city, an admission by the City that it had no evidence upon which it could convict Blake. Is it then lawful that a guiltless citizen can be deprived of a valuable property right, his driver’s license, merely on the unfounded suspicion of a law enforcement officer? Certainly not, or I should say, certainly not in a country that asserts that life, liberty and the pursuit of happiness are inalienable rights.

This Court erred in its holding in Blake I (1986), [220 Mont. 27,] 712 P.2d 1338. Unable to admit its error, this Court compounds its error by insisting that an innocent man be further punished. To paraphrase Goldsmith, “Woe to the land, to hastening ills a prey, where courts contribute to the law’s decay.”

MR. JUSTICE HUNT concurs with the foregoing dissent of MR. JUSTICE SHEEHY.

MR. JUSTICE GULBRANDSON, specially responding to the dissent of MR. JUSTICE SHEEHY

In response to the dissent of Justice John C. Sheehy, concurred in by Justice William E. Hunt, Sr., it should be pointed out that in the first sentence of his dissent filed in Blake I (Mont. 1986), 712 P.2d 1338, 1342, he acknowledges as follows:

“Proceedings to suspend the driver’s license of one who refuses to submit to a chemical test designated by the arresting officer (section 61-8-402, MCA) are civil in nature.”

It should be further noted that the companion criminal action was dismissed on motion of the City Attorney in writing as follows:

“After checking with the Supreme Court in Helena, Montana, I am convinced that we will not get a decision in the Blake case on probable cause for another six to nine months. Therefore, I feel that you should dismiss the D.U.I. charges pending against Mr. Blake in your Court.
“Robert G. Dwyer
“City Attorney
“April 15, 1985, Charge Dismissed as per above letter from Atty. Dwyer
“Judge Delaney
“[City Police Judge]”

In my view, the City Attorney’s motion was appropriate in view of the requirement that the State must bring the defendant to trial within six months, and said motion should not be characterized as an admission that there was no evidence with which to convict the defendant.


author: MR. CHIEF JUSTICE TURNAGE

text:
    MICHAEL H. CONNOLLY, Petitioner and Appellant, v. MONTANA BOARD OF LABOR APPEALS and Valley View Estates Nursing Home, Respondent and Respondent.
    No. 86-367.
    Submitted on Briefs Jan. 8, 1987.
    Decided March 30, 1987.
    734 P.2d 1211.

      James A. Haynes, Hamilton, for petitioner and appellant.
    Mary Anne Simpson, Dept, of Labor, Helena, Worden, Thane & Haines, Molly Shepherd, Missoula, for respondent and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Michael H. Connolly appeals an order entered in the Fourth Judicial District, Ravalli County, affirming the Board of Labor Appeals (Board) decision denying unemployment benefits.

We affirm.

Two issues are presented for our review:

(1) Whether the District Court erred in finding that the Board’s decision was based on substantial credible evidence?

(2) Whether the District Court erred when it determined that no issues of law were before the court?

Appellant Connolly was hired by Valley View Estates Nursing Home in April, 1981, as a Licensed Practical Nurse (LPN). As an LPN, Connolly was responsible for the immediate care of the fácility’s residents during the night shift. Connolly was also the night shift supervisor of four nurses’ aides.

Valley View began experiencing problems with Connolly in the spring of 1983. At that time, a number of aides complained to Bonnie Hicks, director of nursing, that Connolly was harassing and playing games with the nurses’ aides. Administrators, aides and Connolly met in an effort to resolve the problem. Connolly was warned about his disruptive conduct.

In May 1984, the nurses’ aides again complained to Hicks about Connolly. A staff meeting was held on June 20, 1984, with Connolly and the complaining aides present. The nurses’ aides testified that Connolly picked on them and played games with them, including directing them to check on residents who were asleep, dry, and did not need to have their bedding changed. They further stated that Connolly, their supervisor, often disappeared and that they could not find him when they needed him. Nurses’ aide Joseph testified that Connolly insisted she take blood pressure readings despite her protest that she was not qualified and could not hear the heartbeats.

In response to these accusations, Connolly denied the existence of any staff problems. Hicks stated that, after the June 1984 meeting, she warned Connolly to stop harassing and playing games with the aides; that Connolly must not cause residents to be disturbed unnecessarily at night; that Connolly must not insist untrained aides take blood pressure readings; that his reports must be patient oriented and not subject to misinterpretation; and that he must communicate with the aides.

In August 1984, the nurses aides under Connolly’s supervision again complained to director of nursing Hicks that Connolly was harassing them. Although, Connolly denied this allegation, the complaints continued throughout August 1984. In an attempt to determine the source of the night shift’s problems, Hicks rotated a “chronic complainer” to another shift. However, additional complaints concerning Connolly’s work performance began to surface in September 1984.

Nurses’ aide Snell testified, under oath, at the appeals referee’s hearing on December 19, 1984, that Connolly had been unnecessarily rough in changing a patient’s bandage and had failed to change a patient’s bloody dressing on several occasions. Nurse Snow testified that Connolly, on September 5, 1984, refused to aid a patient with an impacted stool, even though the patient had protested loudly and continuously during the night shift. Director of nursing Hicks testified that when she questioned Connolly about the patient, Connolly stated “it’s Mr. Aishe, he thinks there’s something the matter with him but there isn’t.” Nurses’ aide Snell, stated Aishe had been “hollering” during the night. Nurses’ aide Joseph stated that she notified Connolly, but Connolly refused to remove Aishe’s impacted stool. Nurse Pape testified that she informed Hicks on September 5, 1984, that Connolly, in violation of prescribed procedures, continued to take radial instead of apical pulses. Nurse Pape stated she instructed Connolly at least twice in the preceding twelve months to refrain from the less accurate radial pulse method. After questioning the residents, Hicks determined that Connolly had not taken apical pulses and had falsified pulse records.

On September 6, 1984, administrator Hash and director of nursing Hicks met to discuss the Aishe incident and the falsification of pulse records. They decided to terminate Connolly. However, in order to find a replacement, Connolly was not terminated until September 17, 1984.

Following termination, Connolly filed a claim for unemployment compensation. Valley View’s assistant administrator responded that Connolly was terminated because he experienced difficulty when working with night aides and Connolly had falsified documentation. When Connolly was allowed benefits, administrator Hash informed the Montana Job Service representative that the assistant administrator of Valley View had not detailed the reasons for Connolly’s termination, due to confidentiality rules. When Hash informed the Job Service that Connolly had falsified records, refused to attend to a patient in distress, disrupted the night shift and reported dressing changes that had not been made, Connolly was disqualified from receipt of benefits.

Appeals referee Maronick sustained Connolly’s disqualification after a December 19, 1984, evidentiary hearing at which fourteen witnesses testified. Maronick concluded that “[Connolly’s] actions in record making, client care, and staff supervision showed a wanton disregard of the standards of behavior the employer had a right to expect of him . . .” After reviewing the record and hearing further testimony and argument, the Board of Labor Appeals by a two-to-one vote, determined there was not “any substantial evidence to warrant a modification or reversal” of Maronick’s decision. The Board adopted the appeals referee’s findings of fact and conclusions of law.

The District Court similarly concluded that the Board of Labor Appeals’ findings of fact were supported by substantial evidence and that no issues of law were presented.

Issue I

Whether the District Court erred when it held that the Board’s decision was based on substantial credible evidence?

The Montana legislature has strictly limited the scope of judicial review of decisions of the Board of Labor Appeals. Review is governed by Section 39-51-2410(5), MCA, which provides that:

“[T]he findings of the board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of said court shall be confined to questions of law. [Emphasis added.]”

This Court has interpreted Section 39-51-2410(5), MCA, in Noone v. Reeder (1968), 151 Mont. 248, 252, 441 P.2d 309, 312, stating:

“The court is not permitted to balance conflicting evidence in support of and in opposition to the Commission’s findings of fact, nor to determine which is the more substantial evidence, nor to consider where the preponderance of the evidence lies; for to do so would be to substitute the Court’s view of the evidence for that of the Commission, and effectively nullify the conclusive character of the Commission’s findings of fact as provided by statute.”

When a District Court reviews a decision of the Board and adopts the decision of the Board of Labor Appeals, the court must first determine if substantial evidence supports the Board’s factual findings. If so, those facts are conclusive. A court is permitted to make different findings only if it determines that no substantial evidence exists for the Board’s findings. Dick Irvin, Inc. v. Mont. Dept. of Labor (Mont. 1983), [207 Mont. 336,] 673 P.2d 1271, 1273, 40 St.Rep. 2086, 2089. Substantial evidence has been defined as:

“[S]uch relevant evidence as a reasonable mind might accept as adequate to support a conclusion or, stated another way, enough evidence to justify a refusal to direct a verdict on a factual issue in a jury trial.”

Noone, 151 Mont. at 252, 441 P.2d at 311-312.

The District Court recognized, in its findings of fact and conclusions of law, that “the threshold question is whether the findings made by the Board of Labor Appeals [are] supported by the evidence.” The following examination of the record demonstrates the District Court correctly found the Board’s decision was supported by substantial evidence. The Board adopted the appeals referee’s findings in the following matters: (1) Connolly failed to comply with Valley View’s apical pulse requirement and that Connolly had falsified medical charts; (2) Connolly did not examine or act to relieve a patient, after being advised of the problem; and (3) Connolly was deficient as a supervisor.

The District Court found that substantial credible evidence supported the appeals referee’s decision. The court properly declined to enter any factual findings of its own. Dick Irvin, Inc., 673 P.2d at 1273.

Issue II

Whether the District Court erred when it held that no issues of law were before the court?

Connolly contends the District Court erred when it held that Connolly’s acts constituted misconduct. Secondly, Connolly contends the District Court erred when it held that Valley View did not waive its right to assert misconduct.

Pursuant to Section 39-51-2410(5), MCA, the jurisdiction of a court reviewing decisions of the Board of Labor Appeals is confined to questions of law when the Board’s findings are supported by evidence and in the absence of fraud. The District Court properly concluded that no issues of law were before the court. Section 39-51-2303, MCA, provides that

“[A]n individual shall be disqualified for benefits if he has been discharged: (1) for misconduct connected with his work or affecting his employment . . . [Emphasis added.]”

In Gaunce v. Board of Labor Appeals (1974), 164 Mont. 445, 448, 524 P.2d 1108, 1110; citing Federal Aviation Administration v. Mont. State Dept. of Labor & Industry (Mont. 1984), [212 Mont. 1,] 685 P.2d 365, 367, 41 St. Rep. 1542, 1545 this Court defined misconduct as:

“[A] deliberate, willful or wanton disregard of an employer’s interest or of the standards of behavior which he has the right to expect of his employee or carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design.”

Gaunce, 524 P.2d at 1110.

Connolly’s employment history at Valley View is marred with allegations of disruption, insubordination and disregard of fellow employees. Both the appeals’ referee found, and the Board of Labor Appeals found that allegations concerning Connolly’s employment problems were accurate. Clearly, an employer has a right to expect an employee to maintain satisfactory standards of behavior. Connolly, as determined by the Board of Labor Appeals, failed in the following areas: (1) he refused to follow a supervisor’s instructions; (2) he falsified records, clearly in violation of his employer’s policy; (3) he refused to assist a patient in distress, even though Connolly was the sole person on duty who was qualified to assist the patient; and (4) he repeatedly harassed and played games with his, subordinates, although Connolly was previously warned to refrain from such conduct.

The District Court properly concluded that the determination of “misconduct” was a factual question, properly left to the appeal’s referee and the Board of Labor Appeals.

Connolly also contends that because Valley View waited eleven days following the September 6, 1948 decision to terminate Connolly, Valley View should be estopped from claiming misconduct. Connolly claims that since waiver is a legal question, the District Court erred when it failed to make a ruling on the issue.

Connolly’s argument fails. An employer is not obligated to immediately terminate an employee once such a decision has been made. However, an employer must act in good faith and in a reasonable manner. Dare v. Montana Petroleum Marketing Company (Mont. 1984), [212 Mont. 274,] 687 P.2d 1015, 41 St. Rep. 1735. Here, Valley View acted reasonably when it waited eleven days to terminate Connolly in order that: (1) a replacement for Connolly could be located, and (2) other Valley View employees could take their scheduled vacations.

We hold that Valley View did not waive its right to claim misconduct. Section 39-51-2303, MCA.

We affirm the District Court on all issues.

MR. JUSTICE HARRISON, WEBER, SHEEHY and HUNT concur.


author: MR. JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JODY DUANE MCDONALD, Defendant and Appellant.
    No. 86-435.
    Submitted on Briefs Jan. 29, 1987.
    Decided March 30, 1987.
    734 P.2d 1216.
    O’Brien & Conrad, Barbara J. Conrad, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., George Schunk, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Missoula, Fred Van Valkenburg, Deputy Co. Atty., for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This appeal arises from a conviction entered in the District Court of the Fourth Judicial District in and for Missoula County. Following a jury trial, defendant was found guilty of burglary and now appeals. We affirm.

On the evening of January 10, 1986, the defendant, Jody McDonald, and his girlfriend, Maggi Stevens, visited a Missoula bar with another couple, Albert Cannon and Kim Cornelius. Because Miss Cornelius was under age and could not remain in the bar, she told the others that she was going to visit Tammy Sessions, a friend who was hosting a small, informal party that evening. She left in Albert’s car.

By 11:00 p.m., Albert Cannon had become concerned about his girlfriend. He and Kim had previously agreed that Kim would pick up Albert at the bar at 10:30, but she had not yet returned. Albert also expressed some discomfort over the presence of Kim’s former boyfriend at Tammy Sessions’ party. Albert asked the defendant to drive him to Sessions’ trailer. They were accompanied by Miss Stevens and Tony Cannon, Albert’s brother who had joined them at the bar. At the trailer, the Cannon brothers went to the front door while the defendant and Miss Stevens waited in the car. Meanwhile, those inside the trailer had switched the evening’s entertainment from drinking games to a game of strip poker and were by then in various stages of loss.

What happened next is disputed. Apparently, when the Cannon brothers were not granted immediate entry, one of them kicked the door off its hinges. Inside, the unclad youths ran for cover as the Cannons entered and demanded to know the whereabouts of Kim. Tony Cannon soon discovered Kim hiding in a back bedroom closet after he had ripped off its door. Tony alerted his brother who proceeded to scuffle with his girlfriend in the bedroom. Kim became hysterical and her screams prompted a neighbor to phone the police. Tony meanwhile returned to the living room where he punched two youths, knocking one out.

Tony Cannon then shouted from the trailer door for the defendant to come inside. The defendant responded by entering the trailer through the broken door. Direct testimony at trial stated that once within the trailer the defendant assaulted at least four persons. Testimony was also presented that Tammy Sessions and her younger sister, Raeann, asked the defendant to leave.

The defendant, Miss Stevens and Tony Cannon left the trailer just before the authorities arrived. Sheriff’s deputies ordered a pick-up and hold for both the defendant and Tony Cannon and the two were arrested after a short search in the early morning of January 11, 1986. The defendant was tried before a jury on the charge of burglary and was fgund guilty. He now appeals.

The first issue raised on appeal is whether defendant’s burglary conviction is supported by sufficient evidence. Our standard of review when presented with a challenge to the sufficiency of the evidence is “[w]hether, after viewing the evidence in the 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. Crumley (Mont. 1986), [223 Mont. 224,] 725 P.2d 214, 215-16, 43 St. Rep. 1675, 1677; State v. McHugh (Mont. 1985), [212 Mont. 296,] 697 P.2d 466, 469, 42 St.Rep. 371, 374; State v. Kutnyak (Mont. 1984), [221 Mont. 155,] 685 P.2d 901, 910, 41 St.Rep. 1277, 1289. “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573.

The defendant was convicted of burglary pursuant to Sec. 45-6-204(1), MCA, which provides:

“A person commits the offense of burglary if he knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein.”

From the evidence presented by the prosecution it is obvious that appellant knowingly entered and remained unlawfully in an occupied structure with the purpose to commit an offense therein, at the very least a misdemeanor offense. He witnessed the door being torn off its hinges, entered thereafter and assaulted at least four persons. Why the State did not charge him with the assault, and chose instead the burglary statute, remains a mystery.

The specific issue we face on appeal is whether, viewing the evidence in the light most favorable to the State, a rational trier of fact could have concluded that the defendant had the specific purpose to commit assault either at the moment he entered the trailer or after he remained unlawfully within the trailer.

It is by now well established that one’s mental state may be gleaned from circumstantial evidence. State v. Hardy (1980), 185 Mont. 130, 137, 604 P.2d 792, 796.

In this case, the State presented the testimony of Maggi Stevens, the defendant’s girlfriend, who testified that as she entered the trailer immediately in front of the defendant, she could see, through the broken doorway, a fight in progress in the living room. Nevertheless, Stevens testified she and the defendant entered the trailer. The State then produced testimony that the defendant, once within the trailer, assaulted at least four different individuals.

Alternatively, a rational juror could have concluded that the State satisfied the elements of burglary by establishing that the defendant remained unlawfully within the trailer with the purpose to commit assault. The State elicited testimony that the defendant (1) remained in the trailer after being asked to leave and (2) continued to assault people within the trailer. Tammy and Raeann Sessions testified that the defendant was asked to leave but did not do so before assaulting others.

In short, viewing the evidence in the light most favorable to the State, we cannot say that a rational jury could not have found that the defendant had the purpose to commit an assault either when he entered the trailer or remained unlawfully therein. We therefore find no error.

The defendant also asserts that the trial court erred in its failure to instruct the jury on the lesser included offense of assault. Because we do not find assault to be a lesser included offense of burglary, we disagree.

As defined herein, the offense of assault requires (1) purposely or knowingly (2) causing bodily injury to another. Section 45-5-201(1), MCA. The offense of burglary, however, does not require any showing of bodily injury, so that one may be convicted of burglary without any such showing. Section 45-6-204(1), MCA. As the Kansas Supreme Court reasoned when a defendant requested in a burglary prosecution a lesser included instruction on “criminal damage to property”:

“The difficulty with this argument is that the element of willfully injuring, damaging, mutilating, defacing, destroying or substantially impairing the use of property is not an element of burglary. It is entirely possible to establish a burglary without proving damage, and the mere fact there was damage to the building in this case does not make criminal damage to property a lesser included offense. We conclude that criminal damage to property is not a lesser included offense of burglary, and the trial court did not err in refusing to instruct on that offense.”

State v. Harper (1984), 235 Kan. 825, 685 P.2d 850, 856.

We find no error.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, GULBRANDSON, SHEEHY and HUNT concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ALBERT CHARLO, Defendant and Appellant.
    No. 86-350.
    Submitted on Briefs Dec. 4, 1986.
    Decided March 31, 1987.
    735 P.2d 278.

      William Boggs, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Helena, Barbara Claassen, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Edward P. McLean, Deputy Co. Atty., Missoula, for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Albert Charlo appeals a jury conviction for aggravated assault in the Fourth Judicial District, Missoula County. On April 7, 1986, Charlo was designated a dangerous offender and sentenced to thirty years in prison for the aggravated assault and use of a dangerous weapon. We affirm the conviction.

Charlo raises two issues for our review:

1. Did the District Court abuse its discretion when it admitted tape-recordings of prior inconsistent statements into evidence?

2. Did the District Court abuse its discretion when it gave the State’s jury instruction regarding flight by the defendant?

On the evening of October 3, 1985, appellant Charlo arrived at a Missoula laundromat with his daughter, Beth Charlo and Beth’s boyfriend, Walter (Sonny) Steele. The three of them had been drinking since morning. Over the next hour, they dried clothes and continued to drink. When they left at approximately 9:00 p.m., Beth’s car would not start. The owner of the laundromat gave them a jump start, and noticed that Steele attached the battery cables, while Beth sat in her car and Charlo stood beside the car. Several minutes later, Beth came inside and told the owner that Steele had been stabbed. The owner then assisted Steele, and noticed that Charlo was gone.

At the hospital, the surgeon who operated on Steele noted that the stabbing wound punctured both walls of the stomach and was nearly fatal. That same night at the hospital, the police tape-recorded Beth’s statements about the incident. In the tape, Beth stated that she saw Steele fall, then get up and say to her, “He just stabbed me.” On October 24, 1985, while Steele was in the hospital, the police tape-recorded Steele’s version of the stabbing incident. In the tape, Steele stated that he saw Charlo take a knife out of his back pocket. Steele also stated, “I knew Albert stabbed me.”

Issue I

Did the District Court abuse its discretion when it admitted tape-recordings of prior inconsistent statements into evidence?

At trial, both Steele and Beth testified that they did not know who stabbed Steele. Following their testimony, the police officers who tape-recorded their statements testified to the identity and accuracy of the tapes. During the officers’ testimony and over Charlo’s objections, the District Court admitted Steele’s and Beth’s tape-recorded statements into evidence. The statements were then played for the court and jury.

Charlo first contends that the prior inconsistent statements were improperly admitted as substantive evidence, because the use of the taped statements violated his right to confront the witnesses as guaranteed by the Sixth Amendment. The Sixth Amendments provides: “In all criminal prosecutions the accused shall enjoy the right ... to be confronted with the witnesses against him.”

Our analysis of this issue is governed by Rule 801(d)(1), M.E.Evid.:

“A statement is not hearsay if: . . . The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony . . . [Emphasis added.]”

We have held that Rule 801(d)(1)(A) does not require that the prior inconsistent statements be made under oath. State v. Fitzpatrick (1980), 186 Mont. 187, 196, 606 P.2d 1343, 1348. We also have held that prior inconsistent statements admitted under Rule 801(d)(1)(A) can be used as substantive proof in a criminal case. When the witness who made the prior statement is present at trial and subject to cross-examination, the accused’s Sixth Amendment right to confrontation is preserved. State v. Pease (Mont. 1986), [222 Mont. 455,] 724 P.2d 153, 158, 43 St.Rep. 1417, 1423; California v. Green (1970), 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489.

However, before a witness’s prior inconsistent statements can be admitted, the witness must either retract or otherwise deny those statements at trial. Both Steele and Beth were asked about their prior statements and given an opportunity to explain the inconsistency. Steele testified that he could not remember who stabbed him:

“Q. Do you think you know who stabbed you?
“A. Well, like I said last time, I ain’t here to think. I think that’s up to the jury.
“Q. Well, I’m asking, who do you think stabbed you?
“A. I don’t know. I never thought about it.”

Similarly, Beth’s tape-recorded statement is also inconsistent with her trial testimony, where she stated that she could not remember if Charlo stabbed Steele.

“Q. Did you make a statement to any officer at the hospital that, My father, Albert Charlo, stabbed Sonny?
"A. Did I ever?
“Q. Yes.
“A. I don’t remember.
“Q. Did you say it at the hospital?
“A. I don’t remember.
“Q. Now, Beth, did you [sic] father, Albert Charlo, stab Sonny?
“A. I don’t know.
“Q. Did you accuse him of it?
“A. I did, but I don’t know.”

In Pease, we stated that the purpose of the Confrontation Clause is to prevent depositions or expert affidavits from being used against a defendant, instead of placing the witness before the jury and subjecting him to direct and cross-examination. We further stated that, “The Confrontation Clause is not violated by admitting a declarant’s out-of-court statements if the declarant is testifying as a witness and subject to full and effective cross-examination.” Pease, 724 P.2d at 158, citing Green, 399 U.S. at 157, 90 S.Ct. at 1934-1935, 26 L.Ed.2d at 496-497.

Both Steele and Beth were repeatedly available for observation and cross-examination. Steele took the stand on three separate occasions on three separate days. Beth took the stand twice on two different days. Both witnesses were subjected to cross-examination after the tapes had been admitted into evidence.

Furthermore, the judge specifically told Charlo:

“You can cross-examine Beth Charlo at any time, call her as a witness and cross-examine her about what she said on the tape recording, or you can cross-examine the officer to make sure that that is a true and correct tape recording of what Beth said. These are particular areas that you can cross-examine as far as a tape recording is concerned.”

Charlo had ample opportunity to cross-examine both Beth and Steele after the tapes had been admitted. This opportunity for subsequent cross-examination served as an adequate substitute for cross-examination at the time of Beth and Steele’s prior statements. Because the witnesses denied the statements or claimed not to remember, we hold that the statements themselves were properly admitted into evidence.

Charlo also contends that the taped statements were unreliable. However, we note that the tape-recorded statements were heard by the jury in their original form, and both Beth and Steele remember giving the statements.

Charlo further argues that the taped statements were the sole basis of the jury’s verdict. To guard against this, we have held that prior inconsistent statements must be corroborated by other evidence. State v. White Water (Mont. 1981), 634 P.2d 636, 639, 38 St.Rep. 1664, 1668. In the instant case, the statements were corroborated by the testimony of the laundromat owner, who testified that Charlo, Beth and Steele were the only people in the parking lot at the time of the stabbing. Also in corroborating testimony, Beth stated that she saw Charlo and Steele standing together in front of the car, saw Steele fall down, and saw Charlo with a knife in his hand:

“Q. Where was the knife when you saw it?
“A. In his hand.
“Q. Pardon?
“A. In his hand.”

Steele’s corroborating testimony placed Charlo near Steele just prior to the stabbing:

“Q. Who was standing near you outside? Was anyone around you?
“A. Yeah, someone was.
“Q. Who?
“A. Him.
“Q. Who is him?
“A. Albert.”

Steele’s corroborating testimony also describes Beth’s reaction and comments to Charlo:

“Q. Okay. Now, prior to you getting over to Beth, did you hear Beth say anything to her father?
“A. Yeah, I did.
“Q. What did you hear her say?
“A. I heard her say, What are you going to do, stab me, too?”

Thus, the corroborating testimony of three witnesses places Charlo near Steele immediately prior to the stabbing and confirms that Steele was stabbed. The corroborating testimony of one witness places a knife in Charlo’s hand.

In summary, we find no merit in Charlo’s contention that his right to confront the witnesses was violated by the admission of the tapes. The taped statements of Beth and Steele were played only after they each testified that they did not know who stabbed Steele. Both witnesses were then subject to cross-examination. Furthermore, the prior inconsistent statements were corroborated by their own testimony. We hold that the District Court properly admitted the prior inconsistent statements into evidence.

Issue 2

Did the District Court abuse its discretion when it gave the State’s jury instruction regarding flight by the defendant?

The District Court gave the following instruction to the jury:

“If you are satisfied that the crime charged in the information has been committed by someone, then you may take into consideration any testimony showing, or tending to show, flight by the defendant. This testimony may be considered by the jury as a circumstance tending to prove a consciousness of guilt, but is not sufficient of itself to prove guilt. The weight to be given such circumstance and significance if any, to be attached to it, are matters for the jury to determine.”

This instruction was taken verbatim from the Montana Criminal Jury Instructions (1983), published by the State Bar of Montana, and based upon the authority of State v. Walker (1966), 148 Mont. 216, 419 P.2d 300.

Charlo contends that the instruction constituted an improper comment on the evidence. Charlo argues that the instruction should have included a statement about evidence of “lack of flight by the defendant, as a circumstance tending to prove a consciousness of innocence.”

Our analysis of this issue begins with Section 46-16-401(4), MCA, which states:

“(a) When the evidence is concluded, if either party desires special instructions to be given to the jury, such instructions shall be . . . delivered to the court.
“(b) The instruction shall be settled by the court without the presence of the jury. [Emphasis added.]”

Thus, the selection of instructions lies within the discretion of the trial court.

The instruction, as given by the court, was not an improper comment on the evidence. A jury instruction may be given when it is relevant to evidence or issues in a case, and when it is supported either by some evidence or some logical inference from other evidence presented at trial. State v. Kirkaldie (1978), 179 Mont. 283, 292, 587 P.2d 1298, 1304. The jury instruction was supported by the testimony of the laundromat owner, who stated that Charlo was gone when the owner assisted Steele. The instruction was also supported by Beth’s testimony that Charlo left the crime scene after Beth discovered Steele’s injury:

“Q. Did he stand there? Did he walk away? What did he do?
“A. I guess he walked away.
“Q. Which way did he walk?
“A. I don’t know, towards Broadway, I guess.”

Furthermore, in his own testimony, Charlo admitted leaving the scene shortly after the stabbing:

“Q. You just stood there?
“A. . . . Beth went into the Clean Scene Laundry to call 911. Okay? In the meantime, there was a little building back here with a lot of green stuff on it, and I just moseyed back, or moved, back to the back, passed here (indicating) and finally I went into the shadows of that building.”

As given, the jury instruction does not comment on the evidence but merely reflects the testimony of three witnesses, including the defendant.

Charlo also contends that the instruction was unfairly weighted in favor of the State. However, we have repeatedly approved instructions regarding flight by a defendant. State v. Shurtliff (1980), 187 Mont. 235, 244, 609 P.2d 303, 308; State v. Gone (1978), 179 Mont. 271, 277, 587 P.2d 1291, 1295. The instruction properly reflects the law in Montana that flight by a defendant may be considered by the jury as a circumstance tending to prove consciousness of guilt. State v. Pierce (1982), 199 Mont. 57, 63, 647 P.2d 847, 851. Furthermore, the instruction is conditioned by the phrase, “may take into consideration any testimony . . . tending to show, flight by the defendant.” The phrase is not mandatory and does not shift the burden of proof to the defendant. State v. Goltz (1982), 197 Mont. 361, 371, 642 P2d 1079, 1085.

The instruction merely told the jury to determine the weight and significance, if any, of the evidence of flight. The instruction plainly states that evidence of flight, “is not sufficient of itself to prove guilt.” The instruction accords with our holding in State v. Walker, where we stated: “The evidence is sufficient to support the giving of the [flight] instruction, it was a matter for the jury to accept or reject appellant’s reasons ... It was the jury’s task then to weigh the evidence accordingly.” Walker, 148 Mont. at 226, 419 P.2d at 306. In contrast, Charlo’s proposed instruction was not supported by the evidence and drew an improper inference.

We find no merit in Charlo’s contentions. The testimony of three witnesses points to Charlo’s departure from the crime scene. In light of such supporting evidence, we hold that the District Court acted within its discretion and properly gave the jury instruction on flight.

We affirm the District Court on both issues.

MR. JUSTICES HARRISON, WEBER, GULBRANDSON, SHEEHY and HUNT concur.