author: JUSTICE LEAPHART

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOSEPH MONACO, Defendant and Appellant.
    No. 96-036.
    Submitted on Briefs June 4, 1996.
    Decided July 8, 1996.
    53 St.Rep. 604.
    277 Mont. 221.
    921 P.2d 863.

      For Appellant: Suzanne C. Smith, Douglas W. Marshall; Marshall & Smith, Bozeman.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Ass’t Attorney General, Helena; A. Michael Salvagni, Gallatin County Attorney, Jane Mersen, Deputy County Attorney, Bozeman.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Joseph Monaco (Monaco) appeals from the sentence and judgment of the Eighteenth Judicial District Court, Gallatin County, entered on a jury verdict convicting him of felony theft. We affirm.

Monaco raises the following issues on appeal:

1. Did the District Court abuse its discretion in allowing the prosecuting attorney to testify relating to the defendant’s statements at a deposition?

2. Did the District Court err in denying defendant’s motion to exclude evidence relating to defendant’s prior acts?

Monaco was employed by Hargrove Trucking of Bozeman, Montana, as a log-truck driver. On July 5,1990, Monaco was hauling logs from a job-site near Augusta, Montana. En route, he received a call on his radio from Bob Piper, a Hargrove employee, requesting that Monaco pick up, and attach, a trailer to his truck in Augusta on his way to the job-site. Monaco asserts that he did not have the proper equipment to pick up the trailer but that he was directed to do so or risk losing his job. Monaco claims that he attempted to hitch up the trailer to his truck and, in so doing, injured his back.

Monaco filed a claim with the State Mutual Compensation Insurance Fund (State Fund). State Fund accepted the claim and, in all, paid Monaco $22,116.36 in benefits. On August 12,1994, Monaco was charged with felony theft in violation of §§ 45-6-301(5)(b) and 45-6-301(7)(b), MCA. The information alleged that during the period between the alleged accident on July 5, 1990 and December of 1991, Monaco purposely or knowingly obtained or exerted unauthorized control over benefits from the State Fund by means of deception or other fraudulent action. Trial commenced on September 18,1995 and the jury returned a guilty verdict on September 22,1995. Additional facts will be set forth as necessary for our resolution of the issues.

1. Did the District Court abuse its discretion in allowing the prosecuting attorney to testify relating to the defendant’s statements at a deposition?

Monaco asserts that the District Court abused its discretion in allowing Assistant Attorney General and Special Deputy County Attorney Elizabeth Horsman-Wiitala, to testify as to statements made by Monaco in his deposition given in related civil proceedings before the Workers’ Compensation Court. Horsman-Wiitala was previously counsel for State Fund and was present at Monaco’s deposition. By the time of the criminal trial, however, the certified copy of the deposition had been lost and the District Court ruled that Horsman-Wiitala could testify regarding Monaco’s deposition testimony that he had no prior industrial injuries. Although the court initially stated that Horsman-Wiitala’s testimony would be “foundational” only, the court then instructed the jury that “she’s going to testify as to the deposition and the contents thereof.” Thus, Monaco’s counsel was on notice that the contents of the deposition would be before the jury through Horsman-Wiitala’s testimony.

At trial, Monaco’s objection to Horsman-Wiitala’s testimony was directed to the question of whether Monaco had reviewed and signed his deposition and to the question of “whether or not [Horsman-Wiitala] has an interest in the outcome of this case.” In cross-examining Horsman-Wiitala, Monaco’s counsel focused primarily on whether Monaco had signed the deposition. Monaco did not present the District Court with the argument that Horsman-Wiitala’s testimony should not have been admitted or that she, having become a witness, should not have been allowed to continue prosecuting the case. Monaco raises these arguments for the first time on appeal. In fact, the inquiry into whether Horsman-Wiitala would be disqualified from continuing to prosecute the case after she testified was raised solely by the deputy county attorney assisting Horsman-Wiitala.

This Court has consistently held that the failure to object constitutes a waiver of the objection pursuant to § 46-20-104, MCA, unless the circumstances come within an exception found at § 46-20-701(2), MCA. State v. Riley (1995), 270 Mont. 436, 439, 893 P.2d 310, 313 (citing State v. Arlington (1994), 265 Mont. 127, 158, 875 P.2d 307, 326); State v. Stuit (1994), 268 Mont. 176, 182, 885 P.2d 1290, 1294. Section 46-20-104(2), MCA, provides:

(2) Upon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2). [Emphasis added.]

Section 46-20-701(2), MCA, provides:

(2) Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. No claim alleging an error affecting jurisdictional or constitutional rights may be noticed on appeal, if the alleged error was not objected to as provided in 46-20-104, unless the defendant [convicted person] establishes that the error was prejudicial as to his guilt or punishment and that:
(a) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the defendant [convicted person] or his attorney that prevented the claim from being raised and disposed of; or
(c) material and controlling facts upon which the claim is predicated were not known to the defendant [convicted person] or his attorney and could not have been ascertained by the exercise of reasonable diligence.

In the instant case, the record does not suggest, nor does Monaco argue, that any of the exceptions enumerated in § 46-20-701(2), MCA, apply. Rather, Monaco invites this Court to invoke the “plain error” exception to § 46-20-104, MCA. See, e.g., State v. Finley (1996), [276 Mont. 126], 915 P.2d 208, 212. We decline Monaco’s invitation.

Although we recently held that the doctrine of common law plain error review continues to survive despite the existence of Montana’s plain error statute, this appeal does not represent the exceptional case necessary to invoke the plain error doctrine. Finley, 915 P.2d at 215 (citing Arlington, 875 P.2d at 322). In Finley, we discussed the background and application of the common law doctrine of plain error as well as the statutory requirements of § 46-20-701(2), MCA. In Finley, we held that:

this Court may discretionarity review claimed errors that implicate a criminal defendant’s fundamental constitutional rights, even if no contemporaneous objection is made and notwithstanding the inapplicability of the § 46-20-701(2), MCA, criteria, where failing to review the claimed error at issue may result in a manifest miscarriage of justice, may leave unsettled the question of the fundamental fairness of the trial or proceedings, or may compromise the integrity of the judicial process.

Finley, 915 P.2d at 215.

Here, the District Court’s determination that Horsman-Wiitala could testify as to Monaco’s deposition statement that he had had no prior industrial injuries does not rise to the level of a manifest miscarriage of justice, will not leave unsettled the question of the fundamental fairness of the trial or proceedings, nor will it compromise the integrity of the judicial process. See Finley, 915 P.2d at 215. Accordingly, we determine that Monaco’s failure to make a contemporaneous objection precludes this Court from addressing this argument. Section 46-20-104(2), MCA; Riley, 893 P.2d at 313; Stuit, 885 P.2d at 1294; Arlington, 875 P.2d at 325-26.

In addition, we note that Monaco’s false statement in the deposition that he had never filed a prior claim would have been before the jury in any event. Even if Horsman-Wiitala had been precluded from testifying as to the contents of the deposition, her testimony laid the foundation for another witness, the State’s investigator, to rely on the contents of the deposition which were part of his investigation file. Monaco raised no substantive objection to Horsman-Wiitala’s characterization of his deposition testimony. Horsman-Wiitala’s testimony accurately reflected Monaco’s statement. Thus, Monaco was not prejudiced by Horsman-Wiitala’s testimony and any error by the District Court in allowing her testimony would have been harmless under the facts of this case. See Arlington, 875 P.2d at 325.

2. Did the District Court err in denying defendant’s motion to exclude evidence relating to defendant’s prior acts?

In reviewing evidentiary rulings of the district court, we determine whether the district court abused its discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. The determination of whether evidence is relevant and admissible is left to the sound discretion of the trial judge and will not be overturned absent a showing of abuse of discretion. State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063, 1067; Gollehon, 864 P.2d at 1263.

In filling out his State Fund claim, Monaco stated that he had not made any prior claims. As the State correctly notes, it was required to establish the existence of the prior claims in order to show that Monaco’s statement was false and, therefore, that Monaco committed theft by deception. Monaco asserts that the District Court abused its discretion when it denied his motion to exclude evidence relating to allegedly fraudulent workers’ compensation claims he filed in Florida and Wyoming. Monaco argues that the court, in allowing evidence that he filed prior claims and excluding all evidence of the details of the claims unless he attempted to explain them away, ‘left the door open for the remaining Florida and Wyoming evidence to become admissible if [Monaco] attempted to cross examine. ...” According to Monaco, the court’s ruling had the effect of denying him his Sixth Amendment right to cross-examination. Monaco argues that if he were to cross-examine witnesses regarding the filing of the Florida and Wyoming claims, then, through the State’s anticipated rebuttal, specific details of those claims would be before the jury.

The State counters that the District Court properly limited the evidence to the filing of the Florida and Wyoming claims either as part of the corpus delicti of the charge of theft by deception or, alternatively, as evidence of other acts under Rule 404(b), M.R.Evid. Further, the State asserts that if Monaco “opened the door” to the substance of the prior claims the State would be allowed to refute that testimony. We agree.

In State v. Hage (1993), 258 Mont. 498, 506, 853 P.2d 1251, 1256, this Court noted that the State is entitled to present the entire corpus delicti of the crime charged, including matters closely related to the offense and explanatory of the crime. Establishing the fact that Monaco had previously filed claims in Florida and Wyoming was essential to show that Monaco lied to State Fund when he stated that he had not filed prior claims. Therefore, the evidence of previous claims having been filed was properly admitted as part of the corpus delicti of the crime of fraud by deception; accordingly, we need not address Monaco’s argument that the evidence should have been excluded as “other crimes” evidence under Rule 404(b), M.R.Evid., State v. Matt (1991), 249 Mont. 136, 814 P.2d 52, and State v. Just (1979), 184 Mont. 262, 602 P.2d 957. We hold that the evidence was admissible as part of the corpus delicti and that the District Court did not abuse its discretion in denying Monaco’s motion to exclude evidence of the prior claims.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, TRIEWEILER and ERDMANN concur.


source: Caselaw Access Project

author: JUSTICE ERDMANN

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DUANE STUIT, Defendant and Appellant.
    No. 94-458.
    Submitted on Briefs May 23, 1996.
    Decided July 11, 1996.
    53 St.Rep. 607.
    277 Mont. 227.
    921 P.2d 866.

      For Appellant; William F. Hooks, Attorney at Law, Appellate Defender Office, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Billings.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

Defendant Duane Stuit appeals from the judgment of the Thirteenth Judicial District Court, Yellowstone County, adopting the jury verdict finding him guilty of felony criminal endangerment. We affirm.

The issues on appeal are as follows:

1. Did the District Court err in permitting the police officer to testify as to the date of the shooting and the identity of the shooter based on out-of-court statements made to him by the mother and the daughter?

2. If the District Court erred in admitting hearsay testimony, was it harmless error?

FACTS

In late December 1992, a Billings Police Officer was dispatched to the residence of Duane Stuit to investigate a disturbance. Stuit lived there with his common-law wife, Sharon McLain, and her two young children. While the officer was investigating the disturbance, he observed bullet holes in the wall and in the door jamb leading to the children’s bedroom. The bullet holes were not the basis for the disturbance complaint which brought the officer to Stuit’s home.

Further investigation revealed that Stuit had, at an earlier time, fired at least five shots into the wall and approximately another three shots into the children’s door jamb while they were sleeping. This information was related to the officer primarily by Sharon McLain, although the officer apparently also spoke with Sharon’s daughter, Shannon.

Stuit was charged with criminal endangerment as a result of the shooting incident. The defense attorney filed a motion in limine requesting that at trial the State be precluded from eliciting testimony from the officer which was anticipated to identify Stuit as the shooter based upon statements made to the officer by others. The State responded that while Sharon was unavailable for trial, Shannon would testify. The judge inquired as to whether Shannon would testify first and was assured she would. The District Court, in ruling on the motion in limine, stated that it was “an evidentiary matter, [and] if it comes up, it can be ruled upon during the trial” and therefore refused to grant the motion.

Although Sharon was unavailable for trial, Shannon did testify. At trial Shannon testified that she saw Stuit shoot the gun a maximum of five times from the couch into the wall and then heard at least three shots after she was in bed. Shannon testified that this shooting occurred in the month of December, but did not testify as to the specific date. Over an objection on hearsay grounds, the police officer testified that the shooting occurred on or about December 14. The officer also testified that Stuit was the shooter, but no specific objection was made to this testimony at trial. Stuit was convicted of criminal endangerment and now appeals.

ISSUE 1

Did the District Court err in permitting the police officer to testify as to the date of the shooting and the identity of the shooter based on the out-of-court statements made to him by the mother and the daughter?

Stuit argues that the officer’s testimony constituted inadmissible hearsay and that the lower court abused its discretion in admitting the testimony. The standard of review for evidentiary rulings is whether the district court abused its discretion. State v. Riley (1995), 270 Mont. 436, 440, 893 P.2d 310, 313; State v. Santos (1995), 273 Mont. 125, 137, 902 P.2d 510, 517. Questions of admissibility of evidence are left to the sound discretion of the trial court and will not be overturned absent a showing of abuse of discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263.

The State argues that Stuit waived his opportunity to appeal the admission of the officer’s testimony identifying the shooter because the defense counsel failed to object to this question during direct examination. We have stated that we will not put a trial court in error where that court has not been given the opportunity to rule on the admissibility of evidence and to correct itself. State v. McCord (1992), 251 Mont. 317, 325, 825 P.2d 194, 200.

In this case, Stuit’s motion in limine requested that the District Court exclude the anticipated testimony of the officer which would identify the shooter based on out-of-court statements made to him by others. A motion in limine preserves trial error for appeal if the motion is sufficiently specific as to the basis for the objection. See State v. Brown (1984), 209 Mont. 502, 506-07, 680 P.2d 582, 584-85; State v. Weeks (1995), 270 Mont. 63, 85, 891 P.2d 477, 490. This motion was sufficiently specific to preserve the trial error for appeal and thus the court’s admission of the officer’s testimony identifying Stuit as the shooter is properly before this Court, even though there was no specific objection at trial. The officer’s testimony as to the specific date of the shooting was admitted over objection at trial and is also properly preserved for appeal. Section 46-20-701, MCA.

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Rule 801(c), M.R.Evid. The police officer’s testimony at trial as to the identity of the shooter and the specific date of the offense was admittedly based on out-of-court statements made to him by Sharon McLain and her daughter, Shannon. The officer had no personal knowledge of the alleged incident which had occurred approximately two weeks prior to his investigation.

The testimony was offered to prove that Stuit had fired a gun inside his residence thereby making bullet holes in the wall and the door jamb of the children’s room on or about December 14,1992. We hold that the officer’s testimony regarding the specific date of the shooting and his testimony as to the identity of the shooter were hearsay. See State v. Alexander (1994), 265 Mont. 192, 875 P.2d 345 (testimony by social worker relating what he had been told by an alleged victim as to the location of the offense constituted inadmissible hearsay); State v. Camitsch (1981), 192 Mont. 124, 626 P.2d 1250.

The State goes on to argue that the officer’s testimony regarding the specific date of the offense is admissible as an exception to the hearsay rule pursuant to Rule 804(a)(3), M.R.Evid., because Shannon was “unavailable” as a result of her lack of memory on that subject matter. The admission of hearsay evidence under Rule 804 first requires a determination that the declarant is “unavailable” under the rule. In re Marriage of Sarsfield (1983), 206 Mont. 397, 407, 671 P.2d 595, 601. This determination is a preliminary question of fact for the trial court to decide. State v. Nielsen (Or. 1993), 853 P.2d 256, 261. The State had the burden of proving to the trial court by a preponderance of the evidence that Shannon was unavailable due to her lack of memory of the specific date of the shooting. Nielsen, 853 P.2d at 261.

Here the State failed to raise the issue of Shannon’s unavailability due to a lack of memory at the trial court level. It did not ask Shannon if she knew or was able to remember the specific date of the shooting. It only now attempts to argue that she would have testified as to a lack of memory. The admission of the officer’s testimony as to the date of the shooting as a hearsay exception because of Shannon’s unavailability is therefore being raised for the first time on appeal and is inappropriate for consideration by this Court. Fandrich v. Capital Ford Lincoln Mercury (1995), 272 Mont. 425, 431, 901 P.2d 112, 115-16.

We hold that the testimony of the officer as to the identity of the shooter and the specific date on which the shots were fired was inadmissible hearsay and the District Court erred in admitting this testimony.

ISSUE 2

If the District Court erred in admitting hearsay testimony, was it harmless error?

The admission of the hearsay testimony by the officer does not automatically entitle Stuit to have his conviction reversed. See Riley, 893 P.2d at 313. Section 46-20-701(1), MCA, provides that“[n]o cause shall be reversed by reason of any error committed by the trial court against the appellant [convicted person] unless the record shows that the error was prejudicial.”

Stuit argues that the admission of the officer’s hearsay testimony was prejudicial as it identified him as the shooter and specified the date of the incident. Stuit’s defense was that someone else had committed the offense and that it occurred early in December when there were other individuals living in the house. He testified that he had himself discovered the bullet holes on December 10, 1992, the same date the individuals departed from the house. Stuit asserts that the admission of the officer’s testimony further prejudiced him because credibility was a key issue at trial as Shannon was the only witness who testified from personal knowledge of the incident. He argues that the officer’s testimony was used to resolve questions of credibility in favor of Shannon.

We have previously held that in a criminal case “if prejudice is alleged, it will not be presumed but must be established from the record that a substantial right was denied.” State v. Wells (1983), 202 Mont. 337, 349, 658 P.2d 381, 388. The test of prejudicial error is whether “beyond a reasonable doubt the error did not affect the outcome of the trial.” State v. Alexander (1994), 265 Mont. 192, 198, 875 P.2d 345, 349 (citing Chapman v. California (1967), 386 U.S. 18, 26, 87 S. Ct. 824, 829, 17 L. Ed. 2d 705, 711, reh’g denied (1967), 386 U.S. 987, 87 S. Ct. 1283, 18 L. Ed. 2d 241).

Shannon testified the offense occurred in the month of December 1992. She further testified that she was sitting on the couch with her mother and Stuit when he shot the rifle five times into the wall. Thus, Shannon testified from personal observation as to the shooting, the identity of the shooter, and the approximate date. The admissible testimony from the officer that there were at least seven bullet holes in the wall and doorjamb, and that from his experience the five bullet holes in the wall could have been made from someone sitting on the couch in the living room, corroborated her testimony. He also testified that he had recovered a .22 rifle from the bedroom Sharon and Stuit had shared. From Shannon’s testimony as to her personal observations and the admissible corroborating testimony of the officer, the State established the occurrence of the shooting and the identity of the shooter.

The jury was entitled to judge Stuit’s credibility and reject his testimony in favor of Shannon’s testimony which contained proof of the elements of the crime charged in that Stuit was the shooter and did the shooting in December. The officer’s testimony as to the specific date was irrelevant and harmless as there was sufficient evidence, beyond reasonable doubt, upon which the jury could properly convict absent this testimony.

Cumulative evidence is additional evidence of the same character to the same point. Section 26-1-102(4), MCA. The officer’s testimony as to the identity of the shooter after Shannon’s testimony was merely cumulative and thus harmless. See State v. Graves (1995), 272 Mont. 451, 901 P.2d 549; State v. Kao (1990), 245 Mont. 263, 800 P.2d 714; State v. Woods (1986), 221 Mont. 17, 716 P.2d 624.

We hold therefore that the admission of the officer’s hearsay testimony that Stuit had committed the offense and that it occurred on a specific date did not result in prejudice to Stuit and was therefore harmless error.

Affirmed.

JUSTICES NELSON, HUNT, TRIEWEILER and LEAPHART concur.


text:
    RICKY LAWRENCE WESSELL, Petitioner and Appellant, v. STATE OF MONTANA, DEPARTMENT OF JUSTICE, MOTOR VEHICLE DIVISION, Respondent and Respondent.
    No. 96-048.
    Submitted on Briefs May 30, 1996.
    Decided July 11, 1996.
    53 St.Rep. 610.
    277 Mont. 234.
    921 P.2d 264.

      For Appellant: Kevin R. Peterson, Simonton, Howe & Schneider, Glendive.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Brenda Nordlund, Assistant Attorney General, Helena; Richard L. Bums, Glendive City Attorney, Glendive.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

Ricky Lawrence Wessell’s driver’s license was seized and his driving privileges were suspended pursuant to § 61-8-402, MCA, Montana’s implied consent law. Wessell petitioned the District Cotut for the Seventh Judicial District, Dawson County, to reinstate his license on the grounds that it was wrongly seized. The District Court denied the petition. We reverse.

The issue on appeal is whether the District Court erred when it concluded that Wessell had refused to submit to a test for alcohol and therefore denied his petition challenging the suspension of his driving privileges pursuant to § 61-8-402, MCA.

FACTS

On November 20,1995, Wessell was stopped by a Glendive police officer for suspicion of driving under the influence of drugs or alcohol, in violation of § 61-8-401, MCA, after having crossed the center line of the street with his vehicle. Wessell consented to the field sobriety tests which were performed. He was then placed under arrest and transported to the Glendive Police Department for a breath, blood, or urine test pursuant to § 61-8-402, MCA.

Upon arriving at the police station, Wessell was read the Montana Department of Justice Implied Consent Advisory and was asked to submit to a breath test. Wessell consented to the breath test. The officer began the test sequence but was unable to complete the test because the internal standards check for the instrument failed. The officer attempted a second breath test, however, the standards check for the instrument failed again. Wessell cooperated with the officer in attempting to take the breath test.

Wessell was then asked to submit to a blood test but stated that he was unable to submit to this method of testing. He explained to the officer that he had a great fear of needles which precluded him from taking the blood test. Wessell instead voluntarily offered to submit to a urine test. The officer refused this offer explaining that a urine test was not an option because the Glendive Police Department did not have the appropriate means to maintain the integrity of a urine testing sample.

Wessell declined the option to have an independent test completed because as he understood the procedure his driving privileges would be suspended regardless as a result of his failure to submit to the designated blood test. The officer completed the State of Montana Alcohol/Drug Testing Refusal Affidavit indicating that Wessell had refused a breath, blood, or urine test pursuant to § 61-8-402, MCA, and seized his driver’s license.

Wessell filed a petition with the District Court challenging the suspension of his driving privileges. The District Court ordered the Montana Department of Justice, Motor Vehicle Division to reinstate his driving privileges pending the outcome of a hearing on his petition. At the hearing, the parties stipulated that there were no questions as to what factually occurred, including the fact that Wessell had expressed a great fear of needles. The District Court heard sworn testimony from the police officer and from Wessell himself. The Court then issued its findings of fact, conclusions of law, and order which concluded that Wessell’s driver’s license was properly subject to suspension and vacated the prior reinstatement of his driving privileges. Wessell appeals the denial of his petition.

DISCUSSION

Did the District Court err when it concluded that Wessell had refused to submit to a test for alcohol and in denying his petition challenging the suspension of his driving privileges, pursuant to § 61-8-402, MCA?

There was no factual dispute that Wessell did not take the blood test. The issue before the District Court was whether Wessell’s conduct constituted a “refusal” under § 61-8-402, MCA, and was therefore a legal issue. We review conclusions of law to determine whether the district court’s interpretation of the law was correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

Section 61-8-402, MCA, commonly known as the implied consent statute, provides in part as follows:

(1) A person who operates or is in actual physical control of a vehicle upon ways of this state open to the public is considered to have given consent, subject to the provisions of 61-8-401, to a test or tests of the person’s blood, breath, or urine for the purpose of determining any measured amount or detected presence of alcohol or drugs in the person’s body if arrested by a peace officer for driving or for being in actual physical control of a vehicle while under the influence of alcohol, drugs, or a combination of the two. The test or tests must be administered at the direction of a peace officer .... The arresting officer may designate which test or tests are administered. A test for alcohol must be given first, whether or not that test also tests for drugs, and if the test shows an alcohol concentration of 0.10 or more, a test for drugs may-not be given.
(3) If a driver under arrest refuses upon the request of a peace officer to submit to a test or tests designated by the arresting officer as provided in subsection (1), a test may not be given, but the officer shall, on behalf of the department, immediately seize the person’s driver’s license ....

Wessell first argues that his petition should have been granted because he consented to the breath test. He claims that the statute is disjunctive and does not expressly authorize more than one test for alcohol to which he gave his consent. The State asserts, however, that the language “test or tests” allows consecutive tests for alcohol and that Wessell refused to submit to the alternate blood test.

We have held that our function as an appeals court is to ascertain what the Legislature meant and to do that, if possible, by looking to the plain meaning of the words in the statute. Strzelczyk v. Jett (1994), 264 Mont. 153, 157, 870 P.2d 730, 732-33.

The “test or tests” language was adopted by the Legislature in 1993 when it included the provision allowing a test for drugs once an alcohol test has been given if the alcohol concentration is less than 0.10. This amendment changed the testing language from singular to plural, as it authorized a second test for the presence of drugs. The singular nature of the language, as to a test for alcohol, was not changed and the statute still provides that, “[a] test for alcohol must be given first, whether or not that test also tests for drugs, and if the test shows an alcohol concentration of 0.10 or more, [then] a test for drugs may not be given.” Section 61-8-402, MCA (emphasis added). We determine that the “test or tests” language adopted by the Legislature at the time it added the allowance for a drug test refers to the sequential testing for alcohol and then drugs and not for consecutive tests for alcohol alone.

Under the plain language of the statute, therefore, only one test for alcohol may be given. However, this limitation must be considered in light of the definition of “test” as set forth in Rule 23.4.201(31), ARM, which provides that a “test” for purposes of drug and alcohol analysis must be a full and complete analysis. The analysis for a breath test is considered complete when a breath sample is properly delivered, “the breath analysis instrument has executed its prescribed program, a final result is obtained, and a printed record is produced by the breath test instrument.” Rule 23.4.201(31), ARM. The test for other biological samples (i.e., blood and urine) is also defined as a full and complete analysis of the sample(s). Rule 23.4.201(31), ARM. Section 61-8-402, MCA, clearly contemplates that a test for alcohol must be a complete analysis by its language requiring the results of the alcohol test, “if the test shows an alcohol concentration of 0.10 or more, a test for drugs may not be given.”

Under the above definition, a full and complete analysis was not achieved and therefore a valid breath test did not exist. The officer was within the statutory constraints when he designated a second method of testing in order to achieve a test for alcohol.

Wessell next asserts that his refusal should be excused because although he did not submit to the blood test he fully cooperated with the officer and was unable to participate in the test as a result of a disability. The State argues that neither § 61-8-402, MCA, nor § 61-8-403, MCA, provides the means to disregard a motorist’s refusal to submit to a test as designated by the officer.

We have previously stated that the purpose of § 61-8-402, MCA, is to encourage the person arrested for DUI to cooperate and submit to testing. Johnson v. Division of Motor Vehicles (1985), 219 Mont. 310, 313, 711 P.2d 815, 817; State v. Christopherson (1985), 217 Mont. 449, 451, 705 P.2d 121, 123. This statute serves the state’s interest in obtaining reliable and relevant evidence for use in subsequent criminal proceedings.

We have held that certain uncooperative actions by the motorist may comprise a refusal. A refusal to take a blood test does not have to be express but may be implied, for example from an individual failing to cooperate by repeatedly requesting an attorney to be present prior to the test. Johnson, 711 P.2d at 817. It may also arise from a lack of cooperation when a motorist gives a deficient performance of a requested test when he or she is capable of completing the test. Hunter v. State (1994), 264 Mont. 84, 869 P.2d 787.

In the present case it is clear that Wessell’s actions were fully cooperative. Wessell consented to the breath testing procedure for alcohol and was cooperative twice in attempting to achieve a valid test through the means provided. It is not Wessell’s fault that the machine failed to operate properly. Wessell, when asked to submit to a blood test, immediately explained that he was unable to participate in this test because of his extreme fear of needles but was willing to submit to a urine test. He argues that where an individual has fully cooperated but was unable to participate in a test that refusal should be excused.

Thus Wessell argues that the state of mind or motive of the individual asked to submit to testing is a relevant factor for the district court to consider when determining if the refusal should be excused. Wessell cites Matter of Griffiths (Idaho 1987), 744 P.2d 92, to support his assertion that an individual’s fear of needles may be grounds for refusing a blood test.

The Griffiths decision, interpreting Idaho’s implied consent statute, is distinguishable from the present case. Idaho’s implied consent statute specifically provides for a hearing if requested by the motorist following the seizure of their license for refusal to submit to testing to determine “why” the test was refused. Idaho Code § 18-8002(4) (1984). This statute sets forth that a defendant may have his license reinstated if he can prove any of several factors listed, including “that, although defendant refused the requested evidentiary test, he did so with sufficient cause.” Idaho Code § 18-8002 (1984). The Idaho Supreme Court, in applying this statute, held that if a fear of needles is of such magnitude to prevent the motorist as a practical matter from submitting to the test and this fear is communicated to the officer at the time of the test then there may exist sufficient cause to refuse the test. Griffiths, 744 P.2d at 100.

Section 61-8-403, MCA, however, provides for a hearing only to determine “whether... the motorist refused the test.” It does not have a specific provision for inquiring as to why the refusal occurred or for excusing the refusal if there was sufficient cause to refuse. Although the statute does not provide the district court with the discretion to determine if there was sufficient cause for an individual to refuse the test, it does allow the district court to take testimony and examine the facts of the case to determine whether the officer was wrong in concluding that there was a refusal to submit to a test. Section 61-8-403(4), MCA. This section allows the district court the latitude to consider whether the individual was willing but unable to participate in the test as a result of a disability or whether the individual was simply unwilling to cooperate and refused the test.

We recently addressed § 61-8-403(4), MCA, in Hunter, 869 P.2d 787. In that case, we stated that the burden of proving that the officer was wrong in concluding that the petitioner refused to submit to the test was that of the petitioner. Hunter, 869 P.2d at 789. See Section 26-1-401, MCA. Hunter consented to submitting to a breath test. After five or six failed attempts in which she did not blow hard enough to activate the machine the officer proceeded to conduct other sobriety tests. When they returned to the breath test she stated that she had performed enough tests and would not make another attempt. The officer thus determined that she had refused the test and seized her license. We held that Hunter failed to meet her burden of proof as she did not inform the officer at the time of the test of any disability which prevented her from completing a valid test, nor did she introduce any medical evidence at the hearing to indicate that she was unable to perform. Hunter, 869 P.2d at 789-90.

In the present case, it was not contested that Wessell had a valid fear of needles which prevented him from being able to submit to a blood test and therefore we accept this as stipulated. The record shows that he was willing to consent to a test for alcohol but was prevented from doing so by a psychological inability to perform resulting from his disabling fear of needles, which he immediately disclosed to the officer. We determine that under the facts of this case, this psychological inability to perform the test is the equivalent of a physical disability which precludes an individual from participating in or completing a valid test regardless of their willingness. For example, if an individual has asthma and was physically unable to complete a breath test, that inability would not be considered a refusal under § 61-8-403(4), MCA, and our rationale in Hunter.

The conclusion of the District Court that Wessell refused the test was based upon the officer’s testimony, the Implied Consent Advisory Form signed by the officer, and the petitioner’s testimony that he did not submit to the blood test. The record also shows that Wessell cooperated to his fullest physical and mental abilities but was precluded from participating in the test as a result of a stipulated psychological inability, which in this case constitutes a disability. We hold that the District Court erred in its interpretation of § 61-8-403(4), MCA, by concluding that Wessell’s inability to participate in the test regardless of his willingness was a “refusal.”

Reversed and remanded for further proceedings consistent with this opinion.

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


author: CHIEF JUSTICE TURNAGE

text:
    GARY D. FINDLEY and CAROLYN FINDLEY, husband and wife, formerly d/b/a KINGS HILL YOUTH HOME (KHYH), Plaintiffs and Appellants, v. MONTANA THIRTEENTH JUDICIAL DISTRICT COURT, YELLOWSTONE COUNTY; YOUTH COURT SERVICES, DIVISION OF THE MONTANA JUDICIAL COURT, YELLOWSTONE COUNTY, Defendants and Respondents.
    No. 95-430.
    Submitted on Briefs June 17, 1996.
    Decided July 18, 1996.
    53 St.Rep. 627.
    277 Mont. 242.
    921 P.2d 870.

      For Appellant: Patrick F. Flaherty, Great Falls; Steven T. Potts, Jardine, Stephenson, Blewett & Weaver, P.C., Great Falls.
    For Respondent: Dennis Paxinos, Yellowstone County Attorney, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Gary D. Findley and Carolyn Findley appeal a judgment of the First Judicial District Court, Lewis and Clark County, denying their contract claim against Youth Court Services of the Thirteenth Judicial District Court (YCS). We affirm.

The issues are:

1. Did the parties enter into a contract requiring YCS to pay $41 per day or an otherwise reasonable amount in return for the Findleys’ services?

2. Did the District Court err in finding that Carolyn Findley filled in the contract rate of $41 on October 4, 1985?

3. Did the court err by finding that the Findleys’ compensation was limited to sums paid by a non-party to the contract?

4. Did the court err by concluding there was no evidence that YCS ratified the contract?

5. Did the court err by concluding that equitable estoppel cannot apply to the facts of this case?

6. Should this Court enter findings of fact and conclusions of law in accordance with § 3-2-204(5), MCA?

In 1984 and 1985, Gary and Carolyn Findley built and began operating a foster home known as the Kangs Hill Youth Home (KHYH) in Meagher County near White Sulphur Springs, Montana. In September 1985, YCS inquired with the Findleys about placing an adolescent boy, B.I., as KHYH’s first foster child. On October 2,1985, YCS probation officer Warren Pearson took B.I. to KHYH to meet with the Findleys concerning the potential placement.

Gary Findley told Pearson that KHYH would need to charge $41 per day to care for B.I. The Findleys asked Pearson to sign a written contract under which they would provide services to B.I. and YCS would assure that they would be paid $41 per day. The Findleys produced a form contract which included blank spaces for the name of the child, the name of the party contracting with KHYH for placement, and the rate of compensation for the placement.

Pearson testified that he signed the form contract before he left KHYH that day only because Gary Findley insisted that Findleys needed the form to show the “treatment team” that KHYH and YCS were seriously considering a placement of B.I. The extent to which the blanks on the form contract had been filled in was disputed. At trial, Pearson testified that he signed a form contract which did not contain a daily rate amount, a date, or other signatures. He testified that he signed his name to a blank labeled “Representative/Title” and wrote in “Court Services” as the “Referring Agency” on the form contract.

Pearson further testified that he explained to the Findleys that YCS was responsible only for placement decisions for children adjudicated as youth in need of supervision, and that the Montana Department of Social and Rehabilitation Services (SRS) administered reimbursement of foster care providers. He testified that he repeatedly told the Findleys that he could not guarantee a daily payment rate.

The Findleys testified that B.I.’s name, “13th Judicial District Court Services” as the party contracting with KHYH, and “$41” as the daily rate, had been filled in on the form contract before Pearson signed it. The Findleys told Pearson they would need several days to decide whether they could serve B.I. at KHYH.

Two days later, the Findleys decided to accept placement of B.I. at KHYH. Carolyn Findley testified that after inserting the date on the signed contract, she then mailed it to Pearson.

B.I. was adjudicated a youth in need of supervision and placed at KHYH. When the Findleys submitted their first monthly bill for foster care of B.I. to SRS, SRS informed them that the daily rate for foster care services in Montana was $11.63. That daily rate was paid to KHYH for services to B.I. through several years of subsequent negotiations between the Findleys and SRS. B.I. stayed with the Findleys for almost five years.

The Findleys brought this action in 1992 as a claim for contract damages. One party defendant, SRS, obtained summary judgment. Defendant Montana Thirteenth Judicial District Court reached a settlement with the Findleys. YCS was the only remaining defendant at the time of trial.

After hearing and reviewing the evidence submitted by the Findleys and YCS, the District Court entered its findings, conclusions, and order in favor of YCS. The court concluded that the form contract signed by Pearson and Gary Findley was not enforceable because it was substantially incomplete when the parties signed it — neither the date nor the rate amount having been filled in. From that judgment, the Findleys appeal.

Issue 1

Did the parties enter into a contract requiring YCS to pay $41 per day or an otherwise reasonable amount in return for the Findleys’ services?

We will overturn a district court’s findings of fact as clearly erroneous only if the facts are not supported by substantial credible evidence, the district court misapprehended the effect of the evidence, or we are left with a definite and firm conviction that a mistake has been committed. Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. In reviewing conclusions of law, we determine whether the district court’s interpretation of the law was correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

A contract is formed when: (1) identifiable parties capable of contracting; (2) give their consent; (3) to a lawful object; and (4) a sufficient cause or consideration is given. Section 28-2-102, MCA. A contract must contain all its essential terms in order to be binding. Riis v. Day (1980), 188 Mont. 253, 255, 613 P.2d 696, 697.

Pearson’s testimony supports the finding that neither the date nor the rate amount were filled in when he signed the contract. The Findleys argue, however, that YCS subsequently consented to the terms of the contract by remaining silent, accepting the benefits of the contract, and allowing them to perform under it. They maintain that an implied provision to make a reasonable payment arose from Pearson’s and YCS’s conduct.

Pearson testified that he repeatedly informed the Findleys that he was not able to authorize the expenditure of funds in any amount for foster care of B.I. There was no indication that Pearson in any way solicited the form contract; to the contrary, he testified that he signed the incomplete form only at Gary Findley’s insistence to show the KHYH “treatment team” that there was a good faith placement effort. Gary Findley ultimately admitted during trial that he was aware that Pearson could not authorize any rate of pay for the placement of B.I. He also admitted that he knew YCS and Pearson were in charge of placement and SRS was responsible for payment for the placement.

We conclude that the District Court’s finding that neither the date nor the rate amount was filled in when the parties signed the form contract is not clearly erroneous. As discussed above, the Findleys’ theory that an implied provision arose is not persuasive and was rebutted. Therefore, we hold that the District Court’s conclusion that no contract was formed is correct.

Issue 2

Did the District Court err in finding that Carolyn Findley filled in the contract rate of $41 on October 4,1985?

The Findleys assert there is no evidence in the record to support the court’s finding that

[t]wo days later, on October 4,1985, the Findleys decided that they would take [B.I.], and Carolyn filled in the date of October 4,1985, as well as the rate amount of $41 a day[.] [Emphasis supplied.]

As discussed above, Pearson testified that neither the date nor the daily rate amount were filled in when he signed the contract. Carolyn Findley testified that she filled in the date on October 4. The court apparently inferred that when Carolyn Findley filled in the date, she also filled in the rate amount.

A trier of fact may make inferences from the evidence. Section 26-1-501, MCA. Moreover, this finding was not essential to the conclusion that no contract was formed between YCS and the Findleys. We hold that the inclusion of this finding is not reversible error.

Issue 3

the court err by finding that the Findleys’ compensation was limited to sums paid by a non-party to the contract?

The Findleys’ characterization of this finding in the statement of the issue is somewhat misleading. The court found that “SRS simply had no authority, and in fact, did not, pay foster homes more than the standard rate of $11.63 a day for each child.” The Findleys criticize this finding as extraneous.

The Findleys are correct that this finding, like the one in Issue 2, is not essential to the court’s decision. However, the finding is clearly supported in the record, and we hold that it does not represent reversible error.

Issue 4

Did the court err by concluding there was no evidence that YCS ratified the contract?

“A contract which is voidable solely for want of due consent may be ratified by a subsequent consent.” Section 28-2-304, MCA. In this case, the District Court concluded that “there is no evidence that Pearson ratified the later addition of the rate amount” to the form contract.

The Findleys point out that they have argued at least six points as evidence that YCS ratified the contract: YCS received the contract from the Findleys without objection and thereafter had B.I. placed with the Findleys; Pearson observed that the Findleys “delivered good service under the contract” and “performed their duties;” and YCS never objected to the $41 rate to the Findleys or anyone else—in fact, Pearson wrote to SRS and urged that the $41 rate be paid. The Findleys argue that while it may be proper for the District Court to disregard their evidence, it was not proper for the court to conclude that there was no evidence of ratification.

Ratification must be accomplished by one with the power to ratify. No such power has been demonstrated on the part of YCS under the facts of this case. The evidence offered by the Findleys is not inconsistent with YCS’s position that it had no authority to agree to pay any amount for foster care services. Pearson’s promise to the Findleys “to do the very best I could with SRS to secure the requested rate” did not commit any agency to pay the requested rate. Nor did his support for the Findleys in their efforts to obtain $41 per day for foster care commit any agency to pay that amount. None of the evidence offered by the Findleys establishes consent by YCS to pay the rate they demanded.

We hold that the District Court did not err in concluding that there was no evidence that YCS ratified the contract.

Issue 5

Did the court err by concluding that equitable estoppel cannot apply to the facts of this case?

The elements of equitable estoppel are: (1) conduct amounting to a representation or concealment of material fact; (2) these facts were known to the party estopped at the time of the conduct, or circumstances were such that knowledge is imputed; (3) the truth was unknown to the party claiming the benefit of estoppel when that party acted; (4) the conduct was done with the intention or the expectation that it would be acted upon by the parly claiming estoppel or under such circumstances that it was both natural and probable that it would be so acted upon; (5) the conduct was relied upon by the party claiming estoppel, who was led to act upon it; and (6) the party claiming estoppel relied upon the conduct so as to change his position for the worse. Mellem v. Kalispell Laundry (1989), 237 Mont. 439, 442, 774 P.2d 390, 392.

The District Court concluded that equitable estoppel did not apply because the evidence established that the Findleys knew after one month that they would be reimbursed only in the amount of $11.63 per day for foster care of B.I. Instead of terminating their foster care relationship with B.I., they continued for nearly five years with no assurance that they would ever receive more than the standard rate for foster care. The court’s conclusion describes a failure of proof as to element 3 above. Nor did the Findleys establish element 1, misrepresentation or concealment of material fact, given the evidence that Pearson informed them from the very beginning that he had no authority to commit to a payment rate. We hold that the court did not err in concluding that the Findleys cannot recover on a theory of equitable estoppel.

Issue 6

Should this Court enter findings of fact and conclusions of law in accordance with § 3-2-204(5), MCA?

This argument by the Findleys hinges upon their contention that the District Court made erroneous findings of fact and conclusions of law. They contend that because this is an equity case, this Court may substitute its own findings and conclusions and thus eliminate the need for rehearing on remand.

Because we have upheld the rulings of the District Court under all challenges here raised, we need not discuss this issue further.

We affirm the decision of the District Court.

JUSTICES HUNT, ERDMANN, TRIEWEILER and LEAPHART concur.


author: JUSTICE HUNT

text:
    IN THE MATTER OF THE ADOPTION OF JANE DOE, JOHN DOE, and MARY DOE,
    No. 95-299.
    Submitted May 8, 1996.
    Decided July 22, 1996.
    53 St.Rep. 631.
    277 Mont. 251.
    921 P.2d 875.

      For Appellant: Ann C. German, Libby.
    For Respondent: H. James Oleson, Kalispell.
    For Amici: Ann Gilkey, Special Assistant Attorney General, Department of Public Health and Human Services, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

Debra O. (Debra), the natural mother of Jane Doe, John Doe, and Mary Doe (the children), appeals the decision of the Nineteenth Judicial District Court, Lincoln County, terminating her parental rights and granting the petition to adopt of Debra’s mother, Barbara G. (Barbara). We reverse.

ISSUES

The following restated issues are dispositive of this appeal:

1. Did the District Court err by terminating Debra’s parental rights to her children?

2. Did the District Court err by finding that Debra had abandoned the children?

3. Did the District Court err by finding that Debra was able to contribute to the support of the children during the year prior to the filing of Barbara’s petition to adopt the children?

FACTS

Debra is the natural mother of the three children at issue in this case, who are currently eight, six, and four years old, respectively. Debra has a history of drug addiction and is currently incarcerated at the Nevada Women’s Prison at Reno, serving time for narcotics charges and escape. She was incarcerated in late 1992 to serve a two-year sentence for drug charges. During her prison term, Debra undertook counseling for her addiction and began participating in a twelve-step program.

In May of 1993, Debra began a community-based work-release program which required her to work at a restaurant during the day and return to a half-way house at night. Shortly thereafter, Debra walked away from her job, which constituted an escape. Debra testified that she continued to attend twelve-step meetings and maintained her sobriety during her escape. She was apprehended three months later. After her capture in September of 1993, Debra was charged with escape and also served with an outstanding warrant for an unresolved narcotics charge from September, 1992. She pled guilty to both charges and was returned to prison.

Since early 1992, the children have resided with their grandmother, Barbara, in Montana. It is undisputed that Barbara has been very involved in the children’s upbringing all their lives. At times she lived with Debra and looked after the children; at other times, Debra would send the children to live with Barbara, claiming that she was unable to care for them herself. In February of 1993, Debra executed documents making Barbara the guardian of the children and giving her temporary physical custody of them.

In September of 1994, Barbara petitioned the District Court to allow her to adopt the children, alleging that Debra had abandoned them and that, although able, Debra had failed to provide any support for the children in the year prior to the filing date of the petition.

The District Court held a hearing in the matter in December of 1994, and issued its findings of fact, conclusions of law, and order in April of 1995. It found that Debra had both abandoned the children and failed to contribute to their support even though she was able to do so. For these reasons, the District Court terminated her parental rights and, for the same reasons, terminated the parental rights of the children’s fathers. None of the children’s fathers appeared at the termination hearing and none of them have appealed the decision of the District Court. At the same hearing, the District Court granted Barbara’s petition to adopt the children. Debra appeals both the termination of her parental rights and the subsequent adoption of the children by her mother.

STANDARD OF REVIEW

The District Court is in the best position to hear testimony and evaluate evidence in adoption cases. This Court will not reverse a district court’s findings of fact in such cases unless the findings are clearly erroneous. Rule 52(a), M.R.Civ.P.; In the Matter of J.S. and P.S. (1994), 269 Mont. 170, 173, 887 P.2d 719, 720. This Court will not reverse a district court’s conclusions of law in such cases unless the conclusions reflect a mistake of law. In re the Adoption of S.P.M. (1994), 266 Mont. 269, 271, 880 P.2d 297, 298. However, because the termination of parental rights involves a fundamental liberty interest, a decree which purports to terminate such rights must be supported by clear and convincing evidence. Adoption of S.P.M., 880 P.2d at 298 (citing In re the Adoption of R.M. (1990), 241 Mont. 111, 114, 785 P.2d 709, 711).

DISCUSSION

Montana law dictates that a district court generally may order the adoption of a child only when both the child’s parents, if living, consent in writing to the adoption. Section 40-8-111(1)(a), MCA; In re the Adoption of J.B.T. (1991), 250 Mont. 205, 207, 819 P.2d 178, 179. However, § 40-8-111(1)(a), MCA, contains six subsections delineating various exceptional circumstances in which the parent’s consent is not required in order to adopt the child.

The District Court cited three of these subsections as reasons why Debra’s consent to the adoption was not necessary — abandonment, lack of support, and judicial termination of parental rights. Section 40-8-11K l)(a)(iii), MCA, provides that “consent is not required from a father or mother... who has, in the state of Montana or in any other state of the United States, willfully abandoned the child ....” Section 40-8-lll(l)(a)(iv), MCA, provides that

consent is not required from a father or mother ... who has caused the child to be maintained by any public or private children’s institution, any charitable agency, or any licensed adoption agency or the department of public health and human services of the state of Montana for a period of one year without contributing to the support of the child during that period, if able ....

Section 40-8-lll(l)(a)(vi), MCA, provides that “consent is not required from a father or mother... whose parental rights have been judicially terminated.”

ISSUE 1

Did the District Court err by terminating Debra’s parental rights to her children?

In this case, the District Court declared Debra’s parental rights to be judicially terminated and, accordingly, deemed that her consent was not required before the adoption of the children. However, judicial termination of parental rights cannot be considered an independent reason for authorizing this adoption because the determination of whether Debra’s parental rights should be terminated was not independently made.

We have held that, absent parental consent, termination of parental rights “is a necessary procedural stop before an adoption proceeding can be initiated.” In the Matter of the Parental Rights of Baby Girl W. (1991), 249 Mont. 206, 210, 814 P.2d 976, 978 (emphasis added). Moreover, § 40-8-111(1)(a)(vi), MCA, provides that consent need not be obtained from a parent whose parental rights have been terminated. This subsection of the statute, therefore, contemplates a situation where the parent’s rights were terminated by a separate hearing or action at some point in the past. Section 40-8-111(1)(a)(vi), MCA, does not contemplate a concomitant termination of the parent’s rights and adoption of the child by another party, especially where, as here, it is unclear which procedure occurred first.

In any event, the reasons cited for the District Court’s order terminating Debra’s parental rights were the same as the remaining two reasons cited as the rationale for authorizing the adoption— namely, that Debra abandoned the children or, in the alternative, failed to support them for one year before the hearing even though she was able to do so. Accordingly, we review the District Court’s findings and conclusions regarding abandonment and non-support to discover whether they justify either the termination of Debra’s parental rights or the adoption of the children without her consent. For the reasons set forth in issues two and three we hold that the court erred in terminating Debra’s parental rights.

ISSUE 2

Did the District Court err by finding that Debra had abandoned the children?

One of the reasons given by the District Court for judicially terminating Debra’s parental rights and allowing the adoption was that Debra had abandoned the children. As the petitioner, Barbara had the burden of proving that the children were in fact abandoned. Adoption of S.P.M., 880 P.2d at 298 (citing In re Adoption of S.L.R. (1982), 196 Mont. 411, 640 P.2d 886).

As used in the child welfare statutes, abandonment is defined as

leaving the child under circumstances that make reasonable the belief that the parent or other person does not intend to resume care of the child in the future or willfully surrenders physical custody for a period of 6 months and during that period does not manifest to the child and the person having physical custody of the child a firm intention to resume physical custody or to make permanent legal arrangements for the care of the child ....

Section 41-3-102(7)(e), MCA. Under this definition, the period for establishing abandonment is six months. In the Matter of M.J.D. (1987), 225 Mont. 200, 205, 731 P.2d 937, 940.

In this case, Debra was incarcerated for almost two years prior to the filing of Barbara’s petition. It is unquestionable that Debra willingly left the children with Barbara before she went to prison. We therefore must ask whether Debra failed to manifest a firm intention to resume physical custody, or whether the circumstances of this case supported a reasonable belief that Debra did not intend to resume caring for the children in the future.

The District Court did not make specific findings regarding abandonment even though it listed abandonment as a reason for terminating Debra’s parental rights and allowing Barbara’s adoption of the children. However, the trial testimony of both Barbara and Debra indicate that both parties understood that Debra wanted Barbara to care for the children only temporarily:

Q: Has Débbie ever mentioned to you that you could adopt the kids? Barbara: No, she has always been against that.
Q: Has she ever mentioned to you that you should have guardianship of the kids?
Barbara: The only thing that she has ever been agreeable to is temporary custody.
Q: And why was that, please.
Barbara: I just don’t think that she wants to give them up.
Q: Now, I wanted to ask you just a little bit about this adoption proceeding. You understand your mother wants to adopt your three children, your three oldest children?
Debra: Yes, I do.
Q: And what is your feeling about that?
Debra: I don’t want her to adopt my children. I love my mother very much. And I entrust her with my children to take care of but I am their mother. And I want a chance to get out and prove to the courts and my mom that I’m capable of taking care of my children.

As Barbara admitted, Debra never assented to anything more than temporary custody because she fully intended to resume the responsibility for her children once she was released from prison. In addition, Debra corresponded regularly with her mother and the children, sending them letters and drawings once or twice each month.

In short, there is no evidence in the record reflecting any action on Debra’s part that establishes abandonment. On the contrary, she has attempted to stay in contact with the children from prison and has repeatedly and firmly refused to grant permanent custody of them to her mother. While she unquestionably has been separated from them for an extended period due to her incarceration and also has left them in her mother’s care for extended periods of time before that, such separations, voluntary or involuntary, do not rise to the level of abandonment.

We hold that the District Court erred by finding that Debra had abandoned the children.

ISSUE 3

Did the District Court err by finding that Debra was able to contribute to the support of the children during the year prior to the filing of Barbara’s petition to adopt the children?

The District Court also terminated Debra’s parental rights and authorized Barbara’s adoption of the children because it found that, although able, Debra had failed to contribute to the support of the children for a period of one year before the filing of the petition, during which period the children were dependent upon state aid. As noted above, this is an acceptable reason for authorizing adoption proceedings without first obtaining parental consent. Section 40-8-lll(lXaXiv), MCA.

Application of this statutory provision requires a two-tiered analysis. First, the court must determine if the nonconsenting parent failed to contribute to the support of the children during a period of one year prior to the filing of the petition. Second, the court must determine if the nonconsenting parent had the ability to contribute to the support of the children dining that year. In re the Adoption of J.B.T. (1991), 250 Mont. 205, 209, 819 P.2d 178, 179 (citations omitted). In determining whether a parent was able to contribute support, a district court must examine several factors, including:

(1) the parent’s ability to earn an income;
(2) the parent’s willingness to earn an income and support his or her child or children;
(3) the availability of jobs; and
(4) the parent’s use of his or her funds to obtain only the bare necessities of life prior to contributing support to the child or children.

In re the Adoption of K.L.J.K. (1986), 224 Mont. 418, 423, 730 P.2d 1135, 1139; In re the Adoption of V.R.O. (1991), 250 Mont. 517, 520-21, 822 P.2d 83, 85.

In this case, Debra admits that she has not contributed to the support of the children during the year preceding the filing of Barbara’s petition. She claims, however, that she was unable to contribute to the children’s support during that year because she was in prison the entire time. The District Court found otherwise, noting that Debra sustained a $50 to $100 per day drug habit, as evinced by her plea of guilty to an additional drug charge after being recaptured in September of 1993.

Debra’s admitted drug addiction alone cannot serve as clear and convincing evidence that she had the means to contribute to her children’s support. The relevant inquiry is whether she obtained funds which could have been used for the support of the children which, instead, she chose to spend on drugs. Debra, however, claimed that she has been clean and sober since before her escape in May of 1993. While on work-release, all her wages went to pay for her stay at the half-way house; during the escape, she was not employed; and since her recapture she has been continuously in prison. Debra’s uncontroverted testimony established that, while she does in fact have a drug problem, she is sober and no longer using drugs. In any event, she does not have the access or funds with which to sustain her habit even if she wanted to.

Part of the confusion in this case resulted from Debra’s 1993 plea of guilty to a drug charge. The District Court apparently noted the new drug charge, which followed her escape, and concluded that she had been using drugs during the escape and was arrested for it. The District Court then concluded that Debra could have sent money to support her children because she had money to buy drugs after she escaped. In reality, however, the drug charge to which she pled guilty was an outstanding one from a year earlier. In any case, the escape took place over one year prior to the date of Barbara’s petition and, therefore, was beyond the proper scope of the District Court’s inquiry.

In addition, Debra sent $60 to her mother two weeks prior to trial for Christmas gifts for the children. The District Court also cited this payment as evidence that Debra could have contributed to the children’s support during the past year. However, Debra explained that the $60 was allotted to her for purchase of textbooks, but that, instead of buying the books, she sent the money to Barbara. Debra also testified she did not receive any pay for her prison job; the job allowed her only to accumulate additional good time.

No evidence was presented to rebut Debra’s uncontroverted testimony that she has been incarcerated for the entire year preceding institution of the adoption proceedings and that she has not had the ability to contribute money to her children's support during that time. The District Court’s inference that her past drug activity indicates a present ability to pay child support was not supported by clear or convincing evidence. The District Court therefore erred by concluding that Debra had the ability to contribute to the support of the children during the year preceding Barbara’s petition and further erred by terminating her parental rights and allowing the adoption on that basis.

Reversed.

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


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TRAVIS TADEWALDT, Defendant and Appellant.
    No. 95-358.
    Submitted on Briefs April 11, 1996.
    Decided July 22, 1996.
    53 St.Rep. 635.
    277 Mont. 261.
    922 P.2d 463.

      For Appellant: Steve Fletcher; Bulman Law Associates, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Kathy Seeley, Ass’t Attorney General, Helena; Robert L. Deschamps, HI, Missoula County Attorney, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

Travis Tadewaldt (Tadewaldt) appeals from the judgment of the Fourth Judicial District Court, Missoula County, entered on his plea of guilty to the felony charge of criminal possession of dangerous drugs and from its underlying orders denying his motions to dismiss. We affirm.

We restate the issues on appeal as follows:

1. Did the District Court err in concluding that § 46-11-504(1), MCA, does not bar prosecution of the drug charge?

2. Did the District Court err in concluding that § 45-9-102, MCA, does not deny Tadewaldt equal protection of the laws or constitute cruel and unusual punishment?

Tadewaldt was arrested for driving under the influence of alcohol and/or drugs (DUI) on August 10,1994. Several months later, he pled guilty to that misdemeanor charge in Missoula Municipal Court. The Municipal Court fined Tadewaldt $350, required him to complete the Montana ACT program and suspended the entirety of a ten-day jail sentence.

Immediately following Tadewaldt’s arrest for the DUI offense, several pills were found in his possession which later were identified as Schedule III and IV drugs under § 50-32-101, MCA. On August 22, 1994, the State of Montana (State) charged Tadewaldt in the District Court with criminal possession of dangerous drugs, a felony offense, in violation of § 45-9-102, MCA. Tadewaldt pled not guilty to the criminal possession charge.

After judgment was entered on the DUI charge in Municipal Court, Tadewaldt moved the District Court to dismiss the criminal possession of dangerous drugs charge. He contended that that offense arose out of the same transaction as the DUI and, as a result, § 40-11-504, MCA, barred the subsequent prosecution. The court denied Tadewaldt’s motion to dismiss.

Tadewaldt later filed a second motion to dismiss the criminal possession of dangerous drugs charge. He argued that § 45-9-102, MCA, denies him equal protection of the laws and constitutes cruel and unusual punishment because it does not provide for a lesser included or misdemeanor offense for possession of a small amount of drugs. The District Court denied Tadewaldt’s motion.

Tadewaldt subsequently withdrew his not guilty plea and pled guilty to the charge of criminal possession of dangerous drugs, reserving his right to appeal the denial of his motions to dismiss. Thereafter, the District Court entered judgment and deferred imposition of sentence for two years subject to specified terms and conditions. Tadewaldt appeals.

1. Did the District Court err in concluding that § 46-11-504(1), MCA, does not bar prosecution of the drug charge?

In his first motion to dismiss the criminal possession of dangerous drugs charge, Tadewaldt argued that § 46-11-504(1), MCA, bars prosecution for that offense. Section 46-11-504, MCA, provides in relevant part:

When conduct constitutes an offense within the concurrent jurisdiction ... of two courts of separate, overlapping, or concurrent jurisdiction in this state, a prosecution in any other jurisdiction is a bar to a subsequent prosecution in this state under the same circumstances barring further prosecution in this state if:
(1) the first prosecution resulted in an acquittal or in a conviction and the subsequent prosecution is based on an offense arising out of the same transaction ....

Thus, a subsequent prosecution is barred under this statute, by its terms, if the following three factors are met: (1) a defendant’s conduct constitutes an offense within the jurisdiction of the court where the first prosecution occurred and within the jurisdiction of the court where the subsequent prosecution is pursued; (2) the first prosecution results in an acquittal or a conviction; and (3) the subsequent prosecution is based on an offense arising out of the same transaction.

Neither Tadewaldt nor the State disputes that the second § 46-11-504(1), MCA, factor is met here. The first prosecution resulted in Tadewaldfs guilty plea in the Municipal Court on the DUI charge and imposition of sentence thereon and, under § 46-1-202(6), MCA, a judgment or sentence entered on a guilty plea constitutes a conviction.

The District Court concluded that neither of the two remaining § 46-11-504(1), MCA, factors is met in this case. On that basis, the court concluded that § 46-11-504(1), MCA, does not bar the subsequent prosecution for criminal possession of dangerous drugs. We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. State v. Gould (1995), 273 Mont. 207, 219, 902 P.2d 532, 540.

We begin by considering whether, under the language contained in § 46-11-504(1), MCA, the subsequent prosecution of Tadewaldt on the drug charge “is based on an offense arising out of the same transaction” as the DUI prosecution. Insofar as it is relevant here, “same transaction” is statutorily defined as

conduct consisting of a series of acts or omissions that are motivated by:
(a) a purpose to accomplish a criminal objective and that are necessary or incidental to the accomplishment of that objective ....

Section 46-1-202(22), MCA.

We have interpreted the “same transaction” factor contained in § 46-11-504, MCA, and its predecessor, § 95-1711(4), R.C.M. (1947), on numerous occasions. See, e.g., State v. Sword (1987), 229 Mont. 370, 747 P.2d 206; State v. Houser (1981), 192 Mont. 164, 626 P.2d 256; State v. Zimmerman (1977), 175 Mont. 179, 573 P.2d 174. In all three of the foregoing cases, we interpreted that factor according to the statutory definition of “same transaction.” See Sword, 747 P.2d at 208; Houser, 626 P.2d at 258; Zimmerman, 573 P.2d at 179. The statutory definition of “same transaction” applied in those cases has remained constant and, indeed, was identical to the current definition contained in § 46-1-202(22), MCA. Compare § 46-1-202(22), MCA, with §§ 46-11-501(1)(a), MCA (1987) (applied in Sword, 747 P.2d at 208); 46-11-501(1)(a), MCA (1979) (applied in Houser, 626 P.2d at 258); and 95-1711(1)(a), R.C.M. (1947) (applied in Zimmerman, 573 P.2d at 179).

In Sword, the most recent of our cases interpreting the § 46-11-504, MCA, “same transaction” factor, the defendant was charged in the United States District Court for the District of Montana with violating the Endangered Species Act of 1973, pled guilty to the offense and was sentenced. Sword, 747 P.2d at 207. Thereafter, the defendant was charged in Montana justice court with violating § 87-2-106(5), MCA (1985), for making false statements on his application for a grizzly bear trophy license and was convicted. Sword, 747 P.2d at 207. On appeal by the defendant to the Montana district court, the court concluded that the second prosecution was barred and granted the defendant’s motion to dismiss. Sword, 747 P.2d at 207.

On appeal to this Court, we observed that the defendant’s conduct consisted of “possessing, carrying, and transporting of a bear taken unlawfully,” and noted his guilty plea based on that conduct to the Endangered Species Act charge in federal court. The trophy license— which the defendant obtained by making false statements on his application — authorized him to possess and transport the bear. Sword, 747 P.2d at 208-209. Applying the “same transaction” definition contained in § 46-11-501(1)(a), MCA (1987), to the defendant’s conduct, we concluded that the false statements which formed the basis for the state charge were “motivated and necessary or at least incidental to the accomplishment of the criminal objective of possessing, carrying, and transporting of a grizzly bear taken unlawfully” for which he was convicted in the federal court. Sword, 747 P.2d at 209. Thus, because the defendant’s conduct fell within the purview of the statutory definition of “same transaction,” we held that the subsequent prosecution in state court was based on an offense arising out of the same transaction as the federal prosecution within the meaning of § 46-11-504, MCA. Sword, 747 P.2d at 209.

Applying Sword to Tadewaldt’s conduct mandates a result opposite from that reached in Sword. Here, Tadewaldt ingested an unidentified substance and drove a vehicle while under the influence of that substance; he also possessed Schedule III and IV drugs. Tadewaldt was not charged in the District Court with criminal possession of the unidentified substance he had already ingested and which resulted in the DUI charge and conviction in the Municipal Court. The criminal possession of dangerous drugs charge was based on Schedule III and IV drugs in his possession subsequent to his arrest for DUI.

In Sword, the defendant’s conduct underlying the subsequent prosecution in state court, namely, making false statements on a grizzly bear trophy license application, enabled him to possess and transport a grizzly bear, for which he was convicted in federal court; thus, the defendant’s conduct in procuring the license through false statements clearly was motivated by a purpose to accomplish the criminal objective of possessing and transporting a grizzly bear and was necessary or incidental to that objective. In the present case, however, the opposite is true. The conduct underlying Tadewaldt’s “criminal objective” of DUI — ingesting an unidentified substance and driving a vehicle while under the influence of that substance — is unrelated to his possession of dangerous drugs. Tadewaldt had completed his “criminal objective” of DUI and, later, Schedule III and IV drugs were found in his possession. The drugs forming the basis of the criminal possession charge had not been ingested and did not contribute to Tadewaldt’s impairment. Thus, in statutory terms, Tadewaldt’s conduct in possessing the dangerous drugs was not motivated by a purpose to accomplish the “criminal objective” of DUI, nor was it necessary or incidental to that “objective.” We conclude that Tadewaldt’s conduct does not meet the definition of “same transaction” contained in § 46-1-202(22), MCA, and, therefore, the criminal possession of dangerous drugs charge does not arise out of the same transaction as the DUI charge within the meaning of § 46-11-504(1), MCA.

As set forth above, § 46-11-504(1), MCA, is written in the conjunctive; as a result, all three factors must be met before a subsequent prosecution is barred. See § 46-11-504(1), MCA; State v. Miller (1988), 231 Mont. 497, 517, 757 P.2d 1275, 1288. Based on our conclusion that the “same transaction” factor is not met here, we need not address the “jurisdiction” factor contained in § 46-11-504, MCA. Nevertheless, we reiterate here the concern we expressed in Sword over the somewhat unclear “concurrent jurisdiction” portion of § 46-11-504, MCA, and, again, invite the legislature to more clearly evidence its intent with regard to this part of the statute. See Sword, 747 P.2d at 210.

As a final matter in this regard, we observe that our cases interpreting the “same transaction” factor in § 46-11-504(1), MCA, are not entirely consistent. We cited above to Sword, Houser, and Zimmerman, wherein we interpreted the “same transaction” factor in § 46-11-504(1), MCA, by applying the statutory definition of “same transaction;” those cases were decided in 1987, 1981, and 1977, respectively. After deciding Zimmerman and Houser, but before Sword, we decided State v. Pierce (1982), 199 Mont. 57, 647 P.2d 847, and departed from that approach. In order to avoid confusion in future cases, we take this opportunity to revisit Pierce.

In Pierce, the defendant was charged with DUI injustice court and pled guilty. Several days later, the defendant was charged in district court with two counts of aggravated assault and one count of failure to stop at the scene of an accident. He pled guilty to the failure to stop charge, went to trial on the aggravated assault charges and was convicted. Pierce, 647 P.2d at 848-49. The defendant argued on appeal that “a charge of aggravated assault would violate his constitutional right against being placed in double jeopardy as he had already pled guilty to another charge arising from the same accident, driving under the influence of alcohol.” Pierce, 647 P.2d at 850. He apparently did not raise the issue in terms of the statutory bar contained in § 46-11-504, MCA. See Pierce, 647 P.2d at 849-50.

We set forth § 46-11-504(1), MCA, as the “applicable codification of defendant’s constitutional right against being placed in double jeopardy’ and interpreted the “same transaction” language of the statute under Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, the traditional double jeopardy test. See Pierce, 647 P.2d at 850. Applying Blockburger, we evaluated the elements of the offenses with which the defendant was charged and concluded that assault and DUI each require proof of an element the other does not. Pierce, 647 P.2d at 850. On that basis, we held that the defendant’s constitutional right against being placed in double jeopardy was not violated. Pierce, 647 P.2d at 850. While it is not altogether clear why we failed to interpret the “same transaction” factor in § 46-11-504, MCA, by applying the statutory definition of that term, as we previously had done in Houser and Zimmerman, it appears that the defendant’s framing of the issue in double jeopardy terms pointed us to the traditional Blockburger analysis.

We stated in Sword, and reaffirm here, that § 46-11-504(1), MCA, affords criminal defendants greater protection from double jeopardy than is provided under Blockburger, indeed, we aptly noted in Sword that application of Blockburger in § 46-11-504(1), MCA, cases would strip the defendant of the protection granted under that statute. Sword, 747 P.2d at 209. While the Blockburger “elements” test generally is appropriate in analyzing double jeopardy arguments relating to whether there are two offenses or only one (see Sword, 747 P.2d at 209), the plain language of § 46-11-504(1), MCA, mandates a broader conduct- and transaction-based analysis than Blockburger provides.

As discussed above, we properly interpreted § 46-11-504(1), MCA, in Sword — consistent with our pre-Pierce cases and the statute — by applying the statutory definition of “same transaction.” Unfortunately, we distinguished Pierce in Sword based only on the “concurrent jurisdiction” portion of § 46-11-504, MCA, without noting the inconsistency between Pierce, on the one hand, and Houser and Zimmerman, on the other, with regard to the “same transaction” factor. See Sword, 747 P.2d at 209.

To resolve any confusion, we state clearly here that the Blockburger test is inapplicable in analyzing the “same transaction” factor contained in § 46-11-504(1), MCA. See Sword, 747 P.2d at 209. In interpreting that factor, courts must apply the statutory definition of “same transaction.” Accordingly, we overrule Pierce to the extent it indicates that § 46-11-504(1), MCA, is properly analyzed under Block-burger.

We concluded above that Tadewaldt’s conduct underlying the DUI and drug charges did not arise from the same transaction and, therefore, that the “same transaction” factor contained in § 46-11-504(1), MCA, is not met here. We hold, therefore, that the District Court correctly concluded that § 46-11-504(1), MCA, does not bar the prosecution for criminal possession of dangerous drugs in this case.

2. Did the District Court err in concluding that § 45-9-102, MCA, does not deny Tadewaldt equal protection of the laws or constitute cruel and unusual punishment?

Tadewaldt’s second motion to dismiss challenged the constitutionality of § 45-9-102(5), MCA, based on equal protection and cruel and unusual punishment grounds. Both constitutional challenges were premised on the absence in § 45-9-102(5), MCA, of a “distinction in punishment [for] varying quantities of the same drug....” The District Court concluded that § 45-9-102, MCA, did not deny Tadewaldt equal protection of the laws or constitute cruel and unusual punishment and, on that basis, denied Tadewaldt’s motion to dismiss.

At the outset, we restate the well-established principle that “[a] legislative enactment is presumed to be constitutional and will be upheld on review except when proven to be unconstitutional beyond a reasonable doubt.” State v. Lilburn (1994), 265 Mont. 258, 262, 875 P.2d 1036, 1039 (citing City of Billings v. Laedeke (1991), 247 Mont. 151, 154, 805 P.2d 1348, 1349). The party attacking a statute as unconstitutional bears a significant burden in proving its invalidity. In re Matter of Wood (1989), 236 Mont. 118, 122, 768 P.2d 1370, 1373 (citing T & W Chevrolet v. Darvial (1982), 196 Mont. 287, 292, 641 P.2d 1368, 1370).

Equal Protection

Tadewaldt’s equal protection argument is premised on the failure of § 45-9-102, MCA, to provide for different degrees of culpability and sentencing based on the quantity of Schedule III and IV drugs in a defendant’s possession. He states that “the bulk of criminal offenses in Montana recognize differing degrees of culpability in their application and appropriately provide for varying levels of punishment.”

Tadewaldt’s somewhat murky equal protection argument notwithstanding, it is clear that it is within the province of the legislature to distinguish between criminal offenses and to set punishments. State v. Bruns (1984), 213 Mont. 372, 378, 691 P.2d 817, 821 (citing Gore v. United States (1958), 357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405, 1410-11). A defendant’s constitutional right to equal protection of the laws is not violated unless the defendant is treated differently based on an impermissible classification. See Bruns, 691 P.2d at 821. If everyone in the same class is treated equally, there is no violation of equal protection. State ex rel. Zander v. District Court (1979), 180 Mont. 548, 556-57, 591 P.2d 656, 661 (citation omitted).

With exceptions not at issue here, all persons in possession of statutorily-defined dangerous drugs commit the offense of criminal possession of dangerous drugs defined in § 45-9-102, MCA, and are subject to the sentences set forth therein. Thus, as was the case in State ex rel. Zander, “[h]ere there is but one class and all persons within that class are treated equally satisfying constitutional equal protection requirements.” See State ex rel. Zander, 591 P.2d at 661. Absent any classification in § 45-9-102(5), MCA, no impermissible classification exists as a matter of law. Accordingly, we hold that the District Court did not err in concluding that § 45-9-102(5), MCA, does not deny Tadewaldt equal protection of the laws.

Cruel and Unusual Punishment

Section 45-9-102(5), MCA, provides that “[a] person convicted of criminal possession of dangerous drugs ... shall be imprisoned in the state prison for a term not to exceed 5 years or be fined an amount not to exceed $50,000, or both.” Pursuant to § 45-9-102(6), MCA, “[a] person of the age of 21 years or under convicted of a first violation under this section is presumed to be entitled to a deferred imposition of sentence of imprisonment.” The District Court deferred imposition of Tadewaldt’s sentence for two years, subject to stated terms and conditions.

Both the Eighth Amendment to the United States Constitution and Article II, Section 22 of the Montana Constitution prohibit cruel and unusual punishment. We consistently have held, however, that a sentence which falls within the statutory maximum is not cruel and unusual punishment. See, e.g., State v. DeSalvo (1995), 273 Mont. 343, 350, 903 P.2d 202, 206-207; Bruns, 691 P.2d at 820. Tadewaldt’s sentence was substantially less severe than the statutory maximum and, under the general rule referenced above, it does not constitute cruel and unusual punishment. See Bruns, 691 P.2d at 820.

An exception to this general rule exists, however. When a sentence is so disproportionate to the crime that it shocks the conscience and outrages the moral sense of the community or of justice, it constitutes cruel and unusual punishment. Bruns, 691 P.2d at 820 (citation omitted). A defendant has the burden of proving that the sentence he received falls within this exception. Bruns, 691 P.2d at 820.

Tadewaldt argues that “[a] mandatory felony for a college kid in possession of such a small quantity of a Schedule IV drug is cruel and unusual punishment...” but concedes on appeal that he received the most lenient sentence possible under the statute. Furthermore, if Tadewaldt adheres to the terms and conditions of his deferred sentence, he can avoid having a permanent felony record. See § 46-18-204, MCA.

On this record, Tadewaldt’s bare assertion of cruel and unusual punishment falls far short of meeting his burden of proving that his sentence is so disproportionate to the crime that it outrages the moral sense of the community or of justice. Accordingly, we hold that the District Court did not err in concluding that Tadewaldt’s sentence does not constitute cruel and unusual punishment.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES ERDMANN, NELSON and LEAPHART concur.