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    STATE OF MONTANA, Plaintiff, Respondent, and Cross-Appellant, v. DARWIN DALE GOODWIN, Defendant and Appellant.
    No. 90-349.
    Submitted on briefs May 9, 1991.
    Decided June 11, 1991.
    Rehearing Denied July 25, 1991.
    249 Mont. 1.
    813 P.2d 953.

      Patrick F. Flaherty, Great Falls, for defendant and appellant.
    Marc Racicot, Atty. Gen., Jennifer Anders, Asst. Atty. Gen.,Helena, Patrick L. Paul, Cascade County Atty., Great Falls, for plaintiff, respondent and cross-appellant.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

On August 14, 1989, the State of Montana filed an information charging the defendant, Darwin Dale Goodwin, with two counts of sexual intercourse without consent, and one count of felony assault. The alleged victim of all three counts was his daughter, Dawn Goodwin. Following a jury trial, which commenced on February 26, 1990, the jury returned its verdict, finding the defendant guilty of one count of sexual intercourse without consent, one count of misdemeanor sexual assault, and one count of felony assault. The defendant was sentenced to five years in the Montana State Prison for his conviction of sexual intercourse without consent. However, all but the first 30 days of that sentence was suspended. He was ordered to serve the first 30 days of his sentence in the Cascade County Jail. He was sentenced to terms of imprisonment for six months, and five years for the remaining misdemeanor and felony convictions, respectively. However, both of those prison terms were suspended. The defendant appeals from his conviction on all three counts. The State has cross-appealed from the sentence imposed on the defendant. We affirm the jury’s verdict and the sentence imposed by the District Court.

The issues raised by the defendant, as rephrased by this Court, are:

1. Did the District Court err when it permitted testimony from the psychologist who interviewed the defendant pursuant to court order in a related “youth in need of care” proceeding?

2. Did the trial court err by refusing to receive testimony of the victim’s grandmother, which was offered for the purpose of impeaching the victim’s testimony?

3. Did the court improperly instruct the jury regarding the definition of “without consent”?

4. Did the court improperly instruct the jury regarding the meaning of “proof beyond a reasonable doubt”?

5. Should the District Court have granted a new trial based upon evidence discovered by the defendant subsequent to trial?

6. Considering the totality of circumstances, was the defendant denied a fair trial?

The State raises the following issue on appeal:

1. Did the District Court err when it applied the exception found in § 46-18-222(5), MCA, to the mandatory two-year sentence for sexual intercourse without consent?

FACTUAL BACKGROUND

The defendant, Darwin Goodwin, was employed by the Montana State Civil Air Patrol, and stationed at Malmstrom Air Force Base near Great Falls, Montana. His daughter, Dawn Goodwin, testified to a series of events that occurred in February 1989 while she was a 16-year-old high school student living with her father. These events formed the basis of the charges against the defendant.

Dawn testified that on or about February 11 or 12 her father instructed her to go to her room, and to clean her room and then herself. After she cleaned her room he inspected it and told her to shower. She testified that after she showered he came into the room and inspected her by sticking his hand inside her pants and inserting his finger into her vagina without her permission. She testified that she submitted to that inspection out of fear that if she did not allow him to do so she would be punished physically. She testified to a long history of prior physical abuse by her father and her stepmother. This incident formed the basis for Count II of the information filed against the defendant on August 14, 1989. Count II charged the defendant with sexual intercourse without consent in violation of § 45-5-503, MCA.

At trial, the defendant denied that incident occurred. However, during an interview conducted by Great Falls Policeman, Bob Dykeman, during February 1989, the defendant admitted that the incident had occurred, but explained that he simply wanted to assure himself that his daughter was clean.

Dawn testified that on February 19 of that same year she was having a conversation with her father and stepmother during which the subject of suicide was discussed. During the conversation he went to his bedroom, retrieved a pistol, returned with the pistol, and told her to beg for her life. She testified that he started to raise the gun and point it at her, but was stopped by her stepmother. According to her testimony, he was very angry at the time. She was frightened and thought that he really might shoot her. This incident formed the basis for Count III of the State’s information charging the defendant with felony assault in violation of § 45-5-202(2)(b), MCA.

The defendant admitted that the incident with the gun occurred, but testified that it was in response to his daughter’s statement that she felt like committing suicide, and that he was simply trying to determine whether she was serious. He stated that in the event he determined she was serious it was his intention to get counseling for her. He further testified that when his wife grabbed his hand and asked him to put the gun down, he did so. He denied pointing the gun at his daughter and telling her to beg for her life. However, according to the testimony of Officer Dykeman, when he interviewed the defendant Mr. Goodwin described the gun incident in terms fairly consistent with his daughter’s description and said that he had been trying to frighten her.

The defendant’s daughter testified that on February 21 she returned home from school and met a friend at the gate to the Air Force Base. After helping her friend to gain entry onto the base, the friend drove her to a location near her home where she dropped her off. Her father, having witnessed her arrival in an unfamiliar car, told her to go to her room and take off her clothes. After she did so, he came into the room, told her he thought she had been “screwing around with guys,” and inspected her physically by inserting his finger into her vagina. After conducting this inspection, he commented that she was ruining his sex life with his wife and asked how about if he took it out on her. She told him “no.” He said “why not?” He then left the room. She testified that when her father inspected her it was without her permission. She was again in fear that if she did not permit him to do so she would be physically punished, and she had the impression that it was his intention to have sex with her. She remained in her room that day until about 11 p.m., and then ran away from home. This incident formed the basis for Count I of the State’s information charging the defendant with sexual intercourse without consent in violation of § 45-5-503, MCA.

During his testimony the defendant admitted this inspection. He testified that he told his daughter to go to her room and that when he arrived in her room he told her to take off her clothes. He said that he explained to her that he wanted to know if she had been “screwing around,” and then took his finger and “swiped the vagina.” He also admitted that during the conversation he told her that she had been “screwing up” his love life with his wife. However, it was defendant’s contention that this inspection was conducted merely for disciplinary purposes, and not for the purpose of sexual gratification.

I.

Did the District Court err when it permitted testimony from the psychologist who interviewed the defendant pursuant to court order in a related “youth in need of care” proceeding?

After defendant’s daughter ran away from home, she eventually was referred to the Department of Family Services, and she advised them of what had happened. Based upon that information, the Department referred this matter to the Cascade County Attorney’s Office, which petitioned the District Court for temporary investigative authority and protective custody of the defendant’s daughter. After a hearing, the District Court granted the State’s petition, placed the defendant’s daughter in foster care, and ordered that the defendant complete a sex offender evaluation through the Sexual Assault Treatment Program in Helena. That evaluation was performed by Ron Silvers, a licensed professional counselor in the State of Montana. Silvers does not have a degree in clinical psychology and does not consider himself a psychologist. As part of that evaluation, the defendant was referred to Ronald Cutting, who administered a polygraph examination to the defendant.

Prior to trial, both Silvers and Cutting were listed as witnesses by the State. On January 30, 1990, the defendant moved to exclude Silvers’ testimony for the reason that it would violate the patient-psychologist privilege provided for in § 26-1-807, MCA, and moved to exclude Cutting’s testimony for the reason that polygraph evidence is inadmissible under Montana law. On Febmary 23, 1990, the District Court ruled that the State would not be allowed to call Silvers or Cutting during its primary case, but left the door open for their testimony during rebuttal if the defendant called his own psychologist, or through his own testimony placed his state of mind in issue.

The defendant’s attorney, however, did not wait for rebuttal. He called both Silvers and Cutting as witnesses during the defendant’s case.

In addition to the fact that he was not a psychologist, Silvers testified that at the time of trial he had no ongoing relationship with the defendant, and that in the strict clinical sense it was his opinion that he had never had a client and counselor relationship with Darwin Goodwin. He saw him as part of a court ordered evaluation and did not acknowledge that there was any confidentiality attendant to their relationship. He pointed out that, in fact, it was necessary for the defendant to sign documents authorizing release of information to anyone who had anything to do with this case. He testified that what he did was not a standard psychological evaluation.

Defendant’s counsel then, over the objection of the county attorney, asked Silvers a number of questions about the defendant’s referral to a polygraph examiner and the reliability of polygraphy. He had Silvers identify questions which he had prepared for the polygraph examiner, and had them admitted into evidence. The county attorney made it clear that she felt this evidence was inadmissible, and had no intention of offering it.

The only testimony given by Silvers regarding communications made by the defendant to him, was the following:

1. He testified that initially the defendant denied inspecting his daughter following her shower (the inspection which formed the basis for Count II), but eventually simply said that he could not recall it.

2. He testified that the defendant did describe to him the second inspection (the acts which formed the basis for Count I), but that he gave no specific details.

3. He testified that the defendant was quite adamant that he had no sexual intent in any of the actions that he took against his daughter.

In essence, the testimony that Silvers gave neither added to nor contradicted the testimony given by the defendant, and in no way contributed to the defendant’s conviction. Any evidence regarding polygraphy was offered by the defendant’s own attorney over the objection of the county attorney, and therefore, any prejudicial effect therefrom was waived by the defendant.

On appeal, the defendant raises several objections to the testimony of Ron Silvers:

1. He contends that Silvers’ relationship to the defendant should be treated as that of a psychologist and a patient, and therefore, privileged pursuant to § 26-1-807, MCA;

2. He contends that admission of the defendant’s conversation with Silvers violates the defendant’s Fifth Amendment right against self-incrimination pursuant to the United States Supreme Court’s decision in Estelle v. Smith, 451 U.S. 454, 68 L.Ed.2d 359, 101 S.Ct. 1866 (1981);

3. He contends that Lori Clark, the social worker for the Department of Family Services, entered into an agreement with the defendant to the effect that any evaluation that was done would be limited to the “youth in need of care” case; and

4. Defendant contends that he did not waive his right to object to this testimony by calling the witness himself pursuant to this Court’s decision in Beil v. Mayer, 242 Mont. 204, 789 P.2d 1229 (1990).

In Estelle v. Smith, the defendant was charged with murder, and prior to trial was ordered to undergo a psychiatric examination to determine his competency to stand trial. The defendant was tried by a jury and convicted. Under Texas law a second trial was then required prior to the imposition of a death sentence. At the second trial, the state called as a witness the psychiatrist who had conducted the pretrial examination, and through that testimony established that defendant would pose a future threat to society. The U.S. Supreme Court found that use of that testimony violated the defendant’s Fifth Amendment right to be free from compelled self-incrimination. However, it was critical to the Supreme Court’s conclusion that the statements made by that defendant in that case were “unwarned statements made in a post-arrest custodial setting.” Smith, 451 U.S. at 467, 101 S.Ct. at 1875, 68 L.Ed.2d at 372. The Supreme Court added that:

“Volunteered statements ... are not barred by the Fifth Amendment,” but under Miranda v. Arizona, supra, we must conclude that, when faced while in custody with a court-ordered psychiatric inquiry, respondent’s statements to Dr. Grigson were not ‘given freely and voluntarily without any compelling influences’ and, as such, could be used as the State did at the penalty phase only if respondent had been apprised of his rights and had knowingly decided to waive them.” Smith, 451 U.S. at 469, 101 S.Ct. at 1876, 68 L.Ed.2d at 373 (emphasis added).

Since Miranda v. Arizona, 384 U.S. 436, 467, 16 L.Ed.2d 694, 86 S.Ct. 1602, 1624 (1966), and its progeny, custodial interrogation has always been a significant element of an involuntary statement in violation of the Fifth Amendment to the United States Constitution. In this case, defendant’s remarks to Ron Silvers were not made while in custody. They were made after he was represented by an attorney during an appointment with a counselor, which was made with the knowledge of his attorney, at a time when his attorney could have been present, had he chosen to be there. This case is not controlled by Smith.

This case is more similar to Buchanan v. Kentucky, 483 U.S. 402, 97 L.Ed.2d 336, 107 S.Ct. 2906 (1987). In that case, the defendant was also accused of murder. At trial, he attempted to establish the affirmative defense of “extreme emotional disturbance,” and called on his behalf a social worker who read excerpts from several reports and evaluations dealing with the defendant’s mental condition. On cross-examination, the prosecutor sought to have the same social worker read from a psychological evaluation done by a court-appointed psychiatrist who examined the defendant, pursuant to court order, to determine his competency to stand trial. The defendant objected to that evidence on the grounds that it would violate his Fifth and Sixth Amendment rights because counsel had not been present during the evaluation and the defendant had not been informed that the results could be used against him at trial.

The evidence was admitted and the defendant was convicted. When this issue was subsequently considered by the U.S. Supreme Court, that defendant, as the defendant in this case, relied on the Court’s decision in Smith. However, the Supreme Court distinguished the Smith case on the following basis:

“This case presents one of the situations that we distinguished from the facts in Smith. Here petitioner’s counsel joined in a motion for Dr. Lange’s examination pursuant to the Kentucky procedure for involuntary hospitalization. Moreover, petitioner’s entire defense strategy was to establish the ‘mental status’ defense of extreme emotional disturbance. Indeed, the sole witness for petitioner was Elam, who was asked by defense counsel to do little more than read to the jury the psychological reports and letter in the custody of Kentucky’s Department of Human Services. In such circumstances, with petitioner not taking the stand, the Commonwealth could not respond to this defense unless it presented other psychological evidence. Accordingly, the Commonwealth asked Elam to read excerpts of Dr. Lange’s report in which the psychiatrist had set forth his general observations about the mental state of petitioner but had not described any statements by petitioner dealing with the crimes for which he was charged. The introduction of such report for this limited rebuttal purpose does not constitute a Fifth Amendment violation.”

Buchanan v. Kentucky, 483 U.S. at 423-24, 107 S.Ct. at 2918-19.

In this case, the District Court stated that it would admit the testimony of Ron Silvers for a limited purpose. The District Court ruled that if the defendant placed his state of mind in issue by calling his own psychologist as a witness or by testifying directly that even though he had committed the acts complained of, they were not committed for the purpose of sexual gratification, then the State could call Silvers in rebuttal to contradict that evidence. The District Court’s ruling was squarely within the rule established by the U.S. Supreme Court in Buchanan.

It was the defendant who called Silvers, and then asked about communications made by the defendant to Silvers. To the extent that Silvers’ testimony exceeded the purposes for which it was originally allowed by the District Court, it was the fault of the defendant, and he thereby waived any objection that he might have otherwise asserted based on privilege or the Fifth Amendment.

Furthermore, there was nothing in Silvers’ testimony that was prejudicial to the defendant. Silvers merely repeated what he was told by the defendant; and the defendant told him the same thing that he told the jury. He denied the incident following his daughter’s shower. He admitted the other inspection incident, but stated that it was solely for the purpose of discipline and not for the purpose of sexual gratification.

We conclude that pursuant to Buchanan, Silvers’ testimony did not violate the defendant’s Fifth Amendment right to be free from self-incrimination, and that because there is no reasonable possibility that that testimony contributed to his conviction, it is not necessary to discuss whether it was privileged or inadmissible pursuant to the alleged agreement with the State. If it had been inadmissible for either of those reasons, it would have been, at most, harmless error. Brodniak v. State, 239 Mont. 110, 779 P.2d 71 (1989).

II.

Did the trial court err by refusing to receive testimony of the victim’s grandmother, which was offered for the purpose of impeaching the victim’s testimony?

The defendant was charged with two counts of sexual intercourse without consent pursuant § 45-5-503, MCA. Sexual intercourse is defined at § 45-2-101(61), MCA, as “penetration of the vulva or anus of one person by any body member of another person... for the p urpose of arousing or gratifying the sexual desire of either party.” (Emphasis added.)

Prior to trial, the defendant took the deposition of Ruby Goodwin, who is the mother of the defendant and the grandmother of Dawn Goodwin. She testified that subsequent to the acts complained of, Dawn told her that she did not think her father had acted for sexual gratification when he inspected her. The State objected to this testimony on the grounds that it was inadmissible hearsay, and that objection was sustained.

On appeal, the defendant asserts that the testimony from Ruby Goodwin should have been admitted pursuant to Rule 613(b), Mont.R.Evid., as a prior inconsistent statement.

The State responds that pursuant to Rule 801(d)(1), Mont.R.Evid., the prior out-of-court statement by a witness has to be inconsistent with her trial testimony in order to form an exception to the general exclusion of hearsay evidence found in Rule 802.

During trial, in response to the defendant’s cross-examination, Dawn Goodwin gave the following testimony when asked about her conversation with her grandmother:

“Q. What explanation did you give to her for why you ran away?
“A. I told her about the sexual stuff and beatings and everything else.
“Q. Did you tell her that it was a sexual-type of inspection?
“A. I told her — I didn’t put a label on it like you do. I just told her what had happened.
“Q. You didn’t tell her it was for discipline as opposed to a sex thing?
“A. I don’t remember. I don’t think I did. I might have, I don’t know.”

We conclude that Dawn Goodwin’s statement to her grandmother, as related by Ruby Goodwin, was not inconsistent with her trial testimony. Therefore, it was properly excluded by the District Court as hearsay evidence.

III.

Did the court improperly instruct the jury regarding the definition of “without consent”?

The District Court’s Instruction No. 15 to the jury defined “without consent” as follows:

“With regard to the offense of sexual intercourse without consent, the term ‘without consent’ means the victim is compelled to submit by force or by threat of imminent death, bodily injury, or kidnapping to be inflicted on anyone.
“Resistance by the victim is not required to show lack of consent. Force, fear, or threat is sufficient alone to show lack of consent.
“The law requires only that the victim does not consent and that she do all that her age, strength and attendant circumstances make it reasonable for her to do in order to manifest her objection.”

The court’s instruction includes, language from § 45-5-501, MCA, which defines “without consent,” but adds language from § 45-5-511(7), MCA, which includes general language applicable to sexual crimes.

The defendant contends on appeal that by including the language from § 45-5-511(7), MCA, the District Court improperly diluted the State’s burden of proof as established by this Court’s decision in State v. Thompson, 243 Mont. 28, 792 P.2d 1103 (1990).

When reviewing jury instructions, this Court must determine whether the instructions, as a whole, fully and fairly present the applicable law of the case. State v. Lemmon, 214 Mont. 121, 129, 692 P.2d 455, 459 (1984). Here the instruction to which the defendant objects was a direct statement of the law and we find that it was not prejudicial to the defendant.

The District Court’s instruction was not inconsistent with this Court’s decision in Thompson, supra. In that case, we simply held that a person could not be convicted of the offense of sexual intercourse without consent unless “the victim is compelled to submit by force or by threat of imminent death, bodily injury, or kidnapping ....” Thompson, 792 P.2d at 1105. In this case, the jury was specifically instructed that to prove lack of consent the State had to establish that the victim was compelled to submit by “force or by threat of imminent death, bodily injury, or kidnapping....” Therefore, the State’s burden of proof was not something less than required by prior case law.

IV.

Did the court improperly instruct the jury regarding the meaning of “proof beyond a reasonable doubt”?

It is within the prerogative of the trial court to determine which instructions are necessary in a particular case, and the court should instruct on every theory having support in the evidence. State v. Smith, 220 Mont. 364, 381, 715 P.2d 1301, 1311 (1986).

In its preliminary instruction to the jury at the outset of trial, the District Court instructed it that the State of Montana had the burden of proving the defendant’s guilt beyond a reasonable doubt. It then defined reasonable doubt as follows:

“Proof beyond a reasonable doubt is proof of such a convincing character that a reasonable person would rely and act upon it in the most important of his own affairs.
“Beyond a reasonable doubt does not mean beyond any doubt or beyond a shadow of a doubt.”

The defendant offered an alternate instruction on reasonable doubt from Devitt & Blackmar, § 11.14. The defendant’s instruction was rejected in favor of the instruction that was actually given by the court. On appeal, the defendant argues that the court’s reasonable doubt instruction was inadequate because it failed to take into consideration that part of the State’s proof was based upon circumstantial evidence. Beyond that, the defendant has failed to explain why his own offered instruction was preferable to the one given by the court.

In State v. Lucero, 214 Mont. 334, 693 P.2d 511 (1984), this Court specifically approved the reasonable doubt instruction given by the District Court in this case. Furthermore, we stated that more complicated instructions on reasonable doubt did not help clarify the State’s burden of proof but have a tendency to confuse the jury. We suggested that this instruction, which is patterned after Model Montana Criminal Jury Instruction No. 1-004, be used in future criminal cases, and that no further elaboration of the definition would, therefore, be needed.

We conclude that the District Court correctly instructed the jury in this case regarding the meaning of reasonable doubt.

V.

Should the District Court have granted a new trial based upon evidence discovered by the defendant subsequent to trial?

After Dawn Goodwin had been removed from her parents’ home, she spent between seven and eight months living with a foster parent whose name was Beatrice T. Doyle. Subsequent to trial, the defendant’s attorney learned that Dawn’s relationship with Ms. Doyle had not been a good one. In fact, Dawn was removed from that home and Ms. Doyle’s foster parent license was subsequently revoked, due to complaints that Dawn and several others made about the quality of care that she provided.

It is the defendant’s position that the State had an obligation to inform him of Ms. Doyle’s existence, and to provide him with a copy of the file kept on Ms. Doyle at the Department of Family Services prior to trial. The defendant argues that by failing to do so, the State suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 10 L.Ed. 215, 83 S.Ct. 1194 (1963).

The basis for this charge by the defendant is his pretrial motion which was granted by the District Court and which requested that the State produce any exculpatory evidence and “a copy of the Department of Family Services files on Dawn, Pam and Darwin Goodwin ...” In response to that motion, the Department of Family Services did produce their file pertaining to Dawn Goodwin. That file was inspected by the District Cotut Judge who made certain portions of the file available to defense counsel to assist him in the preparation of his case.

During the defendant’s motion for a new trial, which was heard on April 17,1990, Lori Clark, who was in charge of delivering the Dawn Goodwin file to the District Court, testified that the information regarding Bea Doyle was kept in a separate Family Services’ file and was not delivered because it was Lori Clark’s understanding that that file had not been requested.

It is the defendant’s position that had the Bea Doyle file been produced, his attorney would have subsequently interviewed her, and learned of the following exculpatory evidence which would have been of assistance to the defendant, and changed the result of his trial:

1. Bea Doyle’s testimony would have established a propensity by Dawn Goodwin to assert complaints of a sexual nature;

2. Her testimony would have shown Dawn Goodwin’s social promiscuity; and

3. Her testimony would have established that Dawn had not been coerced to submit to the acts with which the defendant was charged in Counts I and III.

Bea Doyle was called as a witness by the defendant during the April 17, 1990, hearing on his motion for a new trial. The only testimony that she gave regarding the victim’s propensity to make complaints of a sexual nature was her testimony that Dawn reported her for “making-out” on the couch while ignoring the foster children under her care. Lori Clark testified that a similar complaint had been made by other foster children, and that Ms. Doyle’s license as a foster parent was subsequently suspended. However, even if we assume, as Ms. Doyle contends, that the complaint by Dawn was untrue, it was simply evidence of another act offered to prove that Dawn acted in conformity therewith when she complained about her father’s acts. As such, it would have been inadmissible at trial pursuant to Rule 404(a), Mont.R.Evid. It did not meet any of the exceptions outlined in Rule 404(b), which would have made it admissible.

Ms. Doyle’s only testimony regarding Dawn Goodwin’s “social promiscuity” was her testimony to the effect that Dawn had a steady stream of boyfriends calling or visiting. These facts did not make any fact which was in issue more or less likely to have occurred, and would, therefore, have been inadmissible pursuant to Rule 401, Mont.R.Evid., for lack of relevance. Furthermore, pursuant to § 45-5-511(4), MCA, evidence of the sexual conduct of a victim of a sexual crime is not admissible. If sexual conduct is inadmissible, it is certainly reasonable to exclude testimony such as Ms. Doyle’s that the victim had a steady stream of boyfriends calling and visiting.

Finally, Ms. Doyle’s testimony on the subject of coercion was as follows:

“Q. (By Mr. Flaherty) Did Dawn tell you her version?
“A. Yes.
“Q. Have I ever asked her for what her version is of what happened?
“A. No, you haven’t.
“Q. They say on cross-examination a good lawyer never asks this question, but what did she tell you was her version of what happened?
“A. She said that there was an incident where her father made her disrobe and he inserted his finger in her vagina to see if she was a virgin. I thought that was highly irregular because I think only a doctor could even tell if a person was a virgin or not or had been abused.
“Q. When she communicated this to you, did she indicate that she was in fear or in any kind of terror that she submitted to this or —
“A. Well, I don’t think that was it. I thought the way that I understood it was that her father — it was a command from her father which she was going to obey even if she was reluctant to do it.”

We conclude that the above testimony does not establish a lack of coercion as suggested by the defendant.

There is no evidence that Bea Doyle’s testimony was suppressed by the State. The evidence was that the Department of Family Services’ file including information about Bea Doyle was not produced by that Department because it did not appear to have been requested by the defendant. The evidence was, furthermore, that had the file been produced it would not have contained information helpful to the defendant, other than the identity of Bea Doyle and the fact that the Department of Family Services had recommended that her foster parent license not be renewed. Finally, had the defendant been aware of Bea Doyle and interviewed her, the testimony that she had to offer would not have been exculpatory for the reasons set forth above. Therefore, her testimony does not warrant a new trial pursuant to Brady v. Maryland, supra.

The defendant’s motion for a new trial was properly considered by the District Court under § 46-16-702, MCA, which provides that:

“Following a verdict or finding of guilty, the court may grant the defendant a new trial if required in the interest of justice.”

The decision of whether a new trial is warranted is within the sound discretion of the trial court and should not be disturbed on appeal unless an abuse of discretion is shown. State v. Morris, 230 Mont. 311, 320, 749 P.2d 1379, 1384 (1988)

Where the basis for a motion for a new trial is newly discovered evidence, as in this case, we have fisted six criteria which should be considered by the District Court:

“1. The evidence must have come to the knowledge of the applicant since the trial;
“2. It was not through want of diligence that the evidence was not discovered earlier;
“3. The evidence is so material that it would probably produce a different result upon another trial;
“4. The evidence is not cumulative merely — that is, does not speak as to facts in relation to which there was evidence at the trial;
“5. The application must be supported by the affidavit of the witness whose evidence is alleged to have been newly discovered, or its absence accounted for; and
“6. The evidence must not be such as will only tend to impeach the character or credit of a witness.”

State v. Greeno, 135 Mont. 580, 586, 342 P.2d 1052, 1055 (1959).

For the reasons previously mentioned, we conclude that the testimony of Beatrice T. Doyle was in some respects inadmissible, and in other respects did not establish those facts for which the defendant now offers it. Therefore, it could not produce a different result upon another trial, and we conclude that the District Court did not abuse its discretion when it denied the defendant’s motion for a new trial.

VI.

Considering the totality of circumstances, was the defendant denied a fair trial?

A. INDEPENDENT EXAMINATION OF VICTIM.

Prior to trial the defendant moved for an independent examination of the alleged victim. The trial court denied that motion.

On appeal, the defendant argues that the trial court erred by denying him an independent medical examination of the victim, Dawn Goodwin. However, the defendant has not offered, nor suggested, any material evidence that could have resulted from an independent medical examination of the victim months after the alleged incidents occurred.

This issue is controlled by our decision in State v. Liddell, 211 Mont. 180, 685 P.2d 918, 924 (1984), where we stated that:

“The next specification of error is whether the District Court erred by refusing to compel the victim to be examined by defendant’s psychologist.
“There is no legal authority for such a procedure. Rule 35(a), M.R.Civ.P, allows for a mental or physical examination by a physician when the mental or physical condition of a party is in controversy. The victim in this matter is a witness, not a party to this action. The issue in this matter is whether the sexual intercourse was effected against her will and without her consent.
“.... Since the victim was a witness and not a party, and since her state of mind was not at issue, it was proper for the District Court to refuse to order her examination by defendant’s psychologist. To hold otherwise would permit the defense to try the victim of the crime and divert the jury’s attention from the primary issue — the guilt or innocence of the defendant.”

B. CAUTIONARY INSTRUCTION.

During the victim’s testimony she related a number of prior acts by her father which amounted to contact or suggestions of a sexual nature. These acts would normally have been inadmissible under Rule 404(b) if offered to prove the character of the defendant. However, they were admissible to prove that the defendant’s intent on the occasions in question was sexual gratification.

On appeal, the defendant does not contend that the prior acts were inadmissible under Rule 404(b). Instead, he argues that no cautionary instruction was given, as is required pursuant to this Court’s decision in State v. Just, 184 Mont. 262, 602 P.2d 957, 964 (1979).

However, at the time that the evidence of other acts was offered, the defendant neither objected to the evidence nor requested a cautionary instruction. Furthermore, after the State completed its proof and it was pointed out to the District Court that the Just instruction had not been given, the court did give an instruction which met with the defendant’s approval prior to proceeding any further. In addition, the court included a second cautionary instruction during its final instructions to the jury.

We conclude that while it would have been preferable for the cautionary instruction to have been given at the time that the evidence was introduced, the delay involved in the giving of the instruction in this case was not prejudicial to the defendant.

C. PROSECUTOR’S REMARKS.

During jury deliberations, the foreman asked the court, “[w]hat is required of the completion of sexual intercourse and if sexual gratification is a requirement of all three?”

Following a discussion in chambers with counsel present, the District Court clarified its instruction by pointing out that the act complained of had to be done for the purpose of “arousing or gratifying [the] sexual desire of either party.”

The foreman then stated, “[s]o then it would be in order to have sexual intercourse, Mr. Goodwin would have to have penetrated his daughter in order to — and receive sexual gratification; is that correct?” In response to that question, the District Court responded, “that’s correct.”

The county attorney then stated to the judge that Mr. Goodwin would not have had to receive sexual gratification as the foreman stated, but only had to commit the act with sexual gratification as his intent.

On appeal the defendant objects that it was improper for the county attorney to have instructed the jury on the law. We agree that counsel should avoid stating their interpretation of the law in the jury’s presence in response to a question from the jury. However, § 46-20-701(2), MCA, provides that: “[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.”

In this case, the prosecutor’s comments were a correct statement of the law, and therefore, we conclude that the prosecutor’s remarks did not adversely affect substantial rights of the defendant.

D. INSPECTION OF FAMILY SERVICES’FILE.

Finally, defendant contends that it was error for the District Court to refuse the defense complete access to the Department of Family Services’ files on Dawn Goodwin.

The District Court conducted its own inspection of those files and produced, for the defendant’s use, those documents which it felt were relevant and necessary to the defense.

In this case, the District Court was bound by § 41-3-205, MCA, which provides as follows:

“(1) The case records of the department of social and rehabilitation services, the department of family services and its local affiliate, the county welfare department, the county attorney, and the court concerning actions taken under this chapter and all records concerning reports of child abuse and neglect shall be kept confidential except as provided by this section. Any person who permits or encourages the unauthorized dissemination of their contents is guilty of a misdemeanor.
“(2) Records may be disclosed to a court for in camera inspection if relevant to an issue before it. The court may permit public disclosure if it finds such disclosure to be necessary for the fair resolution of an issue before it.

We conclude that the District Court did not err by the manner in which it inspected and provided limited discovery of Dawn Goodwin’s records kept by the Department of Family Services.

CROSS-APPEAL

For its cross-appeal, the State of Montana raises the following issue:

Did the District Court err when it applied the exception found in § 46-18-222(5), MCA, to the mandatory two-year sentence for sexual intercourse without consent?

The State appeals from the District Court’s sentencing order which suspended all but 30 days of defendant’s sentence which resulted from his conviction of the crime of sexual intercourse without consent.

Section 45-5-503, MCA, which establishes the crime of sexual intercourse without consent, also provides the following penalty:

“(2) A person convicted of sexual intercourse without consent shall be imprisoned in the state prison for a term of not less than 2 years or more than 20 years and maybe fined not more than $50,000, except as provided in 46-18-222.”

It is clear from the record that in making an exception to the minimum two-year prison term, the District Court relied on § 46-18-222, MCA, which provides as follows:

“All mandatory minimum sentences prescribed by the laws of this state and the restrictions on deferred imposition and suspended execution of sentence prescribed by subsections (4), (5), and (6) of 46-18-201, 46-18-221(3), 46-18-224, and 46-18-502(3) do not apply if:
“(5) where applicable, no serious bodily injury was inflicted on the victim unless a weapon was used in the commission of the offense.”

The State argues that a reasonable construction of § 46-18-222(5), MCA, requires the conclusion that that exception to the minimum sentence is applicable in only those cases where the threat of bodily injury or actual infliction of bodily injury is an essential element of the crime. It is the State’s position that that is why the introductory language “where applicable” is used.

For example, § 45-9-102, MCA, provides a minimum sentence for the possession of dangerous drugs. It would make no sense to impose the minimum sentence and then excuse it in those cases where no serious bodily injury has been inflicted on the victim. Although some would disagree, possession of dangerous drugs is commonly considered a victimless crime.

On the other hand, the State offers robbery (§ 45-5-401, MCA) and aggravated assault (§ 45-5-202(2), MCA) as examples of crimes to which the exception found in § 46-18-222(5), MCA, obviously applies. The State’s argument goes on to point out that both of these crimes have as essential elements of the crime, the infliction or threat of bodily injury. However, in that respect they are similar to the crime of sexual intercourse without consent. In § 45-5-501, MCA, the following definition of “without consent” is provided:

“As used in 45-5-503 and 45-5-505, the term ‘without consent’ means:
“(1) the victim is compelled to submit by force or by threat of imminent death, bodily injury, or kidnapping to be inflicted on anyone; or
“(2) the victim is incapable of consent because he is:
“(a) mentally defective or incapacitated;
“(b) physically helpless; or
“(c) less than 16 years old.”

It is clear that the crimes of robbery, felony assault, and sexual intercourse without consent may all involve the threat or actual infliction of bodily harm.

The State points out that § 45-5-503(3)(a), MCA, increases the penalty in those cases where the victim is under 16 years of age or where bodily injury is inflicted on the victim. The State argues that it would be inconsistent for the legislature to increase the penalty under one section of the code where “bodily injury occurs,” and then to waive the minimum prison term in a subsequent section where no “serious bodily injury was inflicted on the victim ...”

We agree that in reconciling these two provisions there is at least an ambiguity regarding the meaning of “where applicable” in those cases where the victim is under the age of 16 (therefore, the threat of or infliction of harm is not an element of the crime), or where some injury less than “serious bodily injur/’ has been inflicted on the victim. However, if the legislature had intended this exception to minimum sentences to be limited to certain crimes, it had it within its power to clearly state the crimes to which the section was applicable. By doing so, the legislature could have made its intention clear. It did not do so, and under these circumstances our duty is clear. We must interpret the criminal statute in a way most favorable to the private citizen against whom it is sought to be enforced, and against the state which authored it.

The District Court and this Court are compelled to follow the classic rule of construction of criminal statutes which is succinctly set forth as follows:

“Penal statutes are construed with such strictness as to safeguard the rights of the defendant. If the statute contains patent ambiguity and admits of two reasonable and contradictory constructions, that which operates in favor of a party accused under its provisions is to be preferred. Moreover, penal statutes are not to be extended in their operation to persons, things, or acts not within their descriptive terms, or the fair and clear import of the language used. Nothing can be read into penal statutes by implication.

73 Am.Jur. 2d Statutes § 295.

We agree with the following rule of interpretation articulated by the United States Supreme Court over the years:

“First, as we have recently reaffirmed, ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.’ Rewis v. United States, 401 U.S. 808, 812, 28 L.Ed.2d 493, 497, 91 S.Ct. 1056 [1059] (1971). See also, Ladner v. United States, 358 U.S. 169, 177, 3 L.Ed.2d 199, 204, 79 S.Ct. 209 [213] (1958); Bell v. United States, 349 U.S. 81, 99 L.Ed.2d 905, 75 S.Ct. 620 (1955); United States v. Five Gambling Devices, 346 U.S. 441, 98 L.Ed. 179, 74 S.Ct. 190 (1953) (plurality opinion for affirmance). In various ways over the years, we have stated that ‘when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.’ United States v. Universal C. I. T. Credit Corp., 344 U.S. 218, 221-222, 97 L.Ed. 260, 264, 73 S.Ct. 227 (1952). This principle is founded on two policies that have long been part of our tradition. First, ‘a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.’ McBoyle v. United States, 283 U.S. 25, 27, 75 L.Ed. 816, 818, 51 S.Ct. 340, 341 (1931) (Holmes, J.). See also, United States v. Cardiff, 344 U.S. 174, 97 L.Ed 200, 73 S.Ct. 189 (1952). Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. This policy embodies ‘the instinctive distaste against men languishing in prison unless the law-maker has clearly said they should.’ H. Friendly, Mr. Justice Frankfurter, and the Reading of Statutes in Benchmarks 196, 209 (1967). Thus, where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.”

United States v. Bass, 404 U.S. 336, 347-48, 30 L.Ed.2d 488, 496, 92 S.Ct. 515, 22-23 (1971).

In summary, we conclude that since the threat or infliction of actual bodily harm may, depending on the circumstances, be an element of the offense of sexual intercourse without consent, it is reasonable to conclude that the exception to the minimum sentence found at § 46-18-222(5), MCA, when no “serious bodily injury was inflicted on the victim” is applicable to that offense. Any ambiguity regarding the applicability of this exception must be “resolved in favor of lenity.”

We affirm the jury’s verdict and the sentencing of the District Court.

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


source: Caselaw Access Project

author: JUSTICE McDONOUGH

license: Public Domain

text:
    THE VILLAGE BANK, a banking association, Plaintiff and Respondent, v. LEO J. CLOUTIER, RUTH M. CLOUTIER, E. KITS SMITH, and BRIAN CLOUTIER, Defendants, Counterclaimants and Appellants.
    No. 90-575.
    Submitted on briefs March 7, 1991.
    Decided June 11, 1991.
    249 Mont. 25.
    813 P.2d 971.

      Chris Christensen, Kalispell, for defendants, counterclaimants and appellants.
    Ward E. Taleff, Alexander, Baucus & Linnell, Great Falls, for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Defendants, Leo Cloutier, Ruth Cloutier, Brian Cloutier and E. Kits Smith (hereinafter Cloutiers) appeal from an order of the Eighth Judicial District, Cascade County granting summary judgment in favor of plaintiff, Village Bank. We reverse and remand.

The sole issue we find necessary for review is:

Whether the District Court erred in granting summary judgment in favor of Village Bank.

Over ninety percent of the stock of Treasure State Bank of Glasgow, a Montana State Banking Corporation, was owned by a group of ten persons, that included James G. Edmiston, Roger W. Komder and David A. Anderson. This same group of individuals owned the majority of stock of Intermountain Bancorporation which is a bank holding company that owns several banks located within this state.

In 1984, James Edmiston informed the Cloutiers that he and several other people owned the Treasure State Bank of Glasgow. He further informed the Cloutiers that due to certain banking regulations, the owners had to divest themselves of their stock interest in the Treasure State Bank. He then offered to sell the stock of Treasure State Bank to the Cloutiers for the sum of $1,835,000.

In order to assist the Cloutiers in obtaining funding for this transaction, Edmiston devised a rather complicated plan. He told the Cloutiers that $1,500,000 could be borrowed from the First National Bank of St. Paul, Minnesota. Apparently this sum could be obtained by executing a note that was secured by the stock of Treasure State Bank. The remaining $335,000 could be obtained from banks owned by the Intermountain Bancorporation.

According to the Cloutiers, this entire scheme was represented as virtually risk-free on their part. They maintain that they were told that the dividends from Treasure State Bank stock would be adequate to repay the loans. They further state that they were given up to ten years to repay the $335,000 borrowed through the Intermountain Bancorporation and that this loan could be renewed annually with only interest being paid.

In reliance upon these representations, the Cloutiers purchased the stock of Treasure State Bank. The funds necessary to complete the pinchase were advanced by one of the banks owned by Intermountain Bancorporation (Columbia Falls Bank). Notes were executed and $33,245.00 was loaned to Brian Cloutier, $33,245.00 was loaned to Leo and Ruth Cloutier and $32,000.00 was loaned to E. Kits Smith. These defendants never actually received these funds; however they did receive the stock which was purchased with the money. The funds were distributed to the sellers of Treasure State Bank.

After these transactions were completed, the Cloutiers discovered that the solvency of the bank was misrepresented. According to their brief, Treasure State Bank held $400,000 worth of “bad loans.” As a result of these “bad loans”, they did not obtain any dividends from Treasure State Bank stock and could not repay their loans.

On August 20, 1987, the then present owner of the notes, the original Village Bank, which was owned by Intermountain Bancorporation, sued the Cloutiers to collect upon the promissory notes obtained from the Bank of Columbia Falls, the original payee, which was also owned by Intermountain Bancorporation. Apparently these notes were obtained by Village Bank, for consideration, from the Bank of Columbia Falls.

On April 22, 1988, the original Village Bank was declared insolvent. The bank was closed and the Montana Department of Commerce took possession of its assets. Eventually the Federal Deposit Insurance Corporation was appointed as liquidating agent of the bank.

Subsequently a newly created bank acquired the promissory notes as an asset from FDIC. This new bank is named the Village Bank of Great Falls. It is not related in any manner to the original Village Bank, which was declared insolvent.

The Village Bank of Great Falls continued to press the lawsuit to collect on the promissory notes. The Cloutiers filed an answer and counterclaim alleging failure of consideration, fraud and misrepresentation, breach of contract and breach of the covenant of good faith and fair dealing. On April 28,1989, the Cloutiers filed a motion for leave to file an amended answer and third party complaint. In their proposed amended answer, the Cloutiers raised the defenses of fraud, that the Village Bank of Great Falls was not a holder in due course and therefore subject to all claims or defenses available in common contract actions, failure of consideration, illegality, laches, equitable estoppel, breach of contract and breach of the covenant of good faith and fair dealing.

According to the Cloutiers the District Court did not rule upon their motion to amend. Instead it granted summary judgment in favor of Village Bank of Great Falls on September 14, 1990, and in effect denied the motion to amend. From this order the Cloutiers appeal.

As stated above, the District Court granted summary judgment and entered judgment against the Cloutiers without allowing them to amend their complaint. Montana follows the general rule that leave to amend pleadings should be freely given when justice so requires. See State Highway Commission v. Schmidt (1966), 148 Mont. 316, 420 P.2d 153. Refusal to permit an amendment offered at an opportune time and which should be made in the furtherance of justice is an abuse of discretion. State ex rel. Gold Creek Mining Co. v. District Court (1935), 99 Mont. 33, 43 P.2d 249.

In the case now before us, it is clear that the District Court abused its discretion by not allowing the Cloutiers to amend their complaint. Many of the defenses that the Cloutiers sought to assert had previously been included in their original answer as counterclaims. The amendments sought only to redesignate these counterclaims as defenses. The other amendments, such as illegality and the fact that Village Bank of Great Falls is not a holder in due course, appear to be appropriate. Their inclusion would therefore result in little if any prejudice to the plaintiffs.

In their amended complaint, the Cloutiers also sought to file a third party complaint against Intermountain Bancorporation, its member banks and shareholders. Rule 19, M.R.Civ.R, contemplates the liberal use of joinder. Rule 19(a), M.R.Civ.P., makes it clear that whenever feasible, persons materially interested in the subject of an action be joined so that they may be heard and a complete disposition of the case be made.

Here, the Cloutiers maintain that they were induced to enter into the financing arrangement through fraudulent activity perpetrated by the shareholders and officers of Intermountain Bancorporation and its member banks. These issues are an integral part of the lawsuit asserted against the defendants. Its resolution could prevent a multiplicity of lawsuits surrounding one transaction and would therefore further the goal of judicial economy. We make no ruling on their validity. However, we hold that the issues arising out of the amendments were not addressed by the court before granting summary judgment. Accordingly the court’s order of summary judgment should be reversed.

While this appeal was pending, the parties submitted supplemental briefing on the issue of whether the Village Bank of Great Falls, as a purchaser from the FDIC of the promissory notes, is a holder in due course and therefore is not subject to the defenses and claims asserted by the Cloutiers. This has not been considered by the District Court. It would be inappropriate for us to rule on this issue considering the record before us and its possible further factual development.

We reverse the order of summary judgment and remand for further proceedings in accordance with this opinion.

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


author: JUSTICE HUNT

text:
    STATE OF MONTANA Plaintiff and Respondent, v. WILLIAM ROBERT BERNHARDT, Defendant and Appellant.
    No. 90-592.
    Submitted on briefs March 21, 1991.
    Decided June 11, 1991.
    249 Mont. 30.
    813 P.2d 436.
    William Dee Morris, Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., Barbara C. Harris, Asst. Atty. Gen., Helena, Robert L. Deschamps III, Missoula County Atty., Missoula, for plaintiff and respondent.
   JUSTICE HUNT

delivered the opinion of the Court.

The defendant William Robert Bernhardt was found guilty of criminal possession of dangerous drugs by a jury sitting in the Fourth Judicial District, Missoula County. He appeals from that verdict.

We affirm.

The sole question presented for review is whether substantial evidence was introduced at trial upon which to convict the defendant of criminal possession of methamphetamine.

On or about March 13, 1989, the defendant was arrested in downtown Missoula for domestic abuse. During the pat-down to check for weapons, the arresting officer felt a round container in the defendant’s clothing, which he assumed to be a tobacco container. The defendant was then handcuffed and placed in the back of the squad car.

The officer testified that on the ride to the station the defendant was moving around in the back seat quite a bit, rocking back and forth. After they reached the jail parking lot, the officer heard a noise that sounded to him like a hard container dropping onto some metal.

The officer took the defendant to jail, where paraphernalia customarily used to take drugs was found in his pocket. The arresting officer returned to the patrol car and checked the back seat area. Under the cushion of the back seat, he found a small green plastic container and two “bindles.” Residue in the container later tested positive for cocaine and the material in the bindles tested positive for methamphetamine.

The defendant was convicted by a jury of criminal possession of methamphetamine, and the court sentenced him to five years in the Montana State Prison, all of which were suspended.

The issue is whether substantial evidence was presented at trial to convict the defendant of possession of methamphetamine.

The arresting officer testified that it was during the pat down search that he initially felt the object which seemed like a chewing tobacco can that later proved to be a cocaine container. The defendant maintains that the evidence could support a charge of possession of cocaine, since that was what was found in the container, but not possession of methamphetamine. He states that the evidence does nothing to directly connect the defendant with the two bindles of methamphetamine found in the vicinity of the plastic container. The defendant reasons that the jury verdict must have been “based on inferences only, a use of circumstantial evidence forbidden by law.”

The evidence supporting the defendant’s conviction for possession of methamphetamine is sufficient to support the verdict. “Our standard of review on issues of substantial evidence is that a conviction cannot be overturned if the evidence, when viewed in a light most favorable to the prosecution, would allow a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.” State v. Tome, 228 Mont. 398, 400, 742 P.2d 479, 481 (1987), citing State v. Kutnyak, 211 Mont. 155, 174, 685 P.2d 901, 910 (1984). “When circumstantial evidence is susceptible to two interpretations, one which supports guilt and the other which supports innocence, the trier of fact determines which is the most reasonable.” State v. Tome, 228 Mont. at 401, 742 P.2d at 481.

We have defined “substantial” as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Kutnyak, 211 Mont. at 174, 685 P.2d at 910.

“Possession” is the element of the crime in question here. “Possession” is defined as the knowing control of anything for a sufficient time to be able to terminate control. Section 45-2-101(52), MCA. The testimony of the officer established the defendant’s presence and position in the car, his motions, and the sound of an item hitting against metal in the back seat while the defendant was sitting there. The officer testified that the round container matched the size and shape of the container earlier felt in the defendant’s pocket and that the bindles of methamphetamine were with the container when found. The officer also testified that the police vehicle was locked when he and the defendant were away from it and that he recalled no one else who could have deposited the items.

The foregoing evidence of possession of the bindles of methamphetamine is substantial enough to support the trier of fact’s verdict of guilty.

Affirmed.

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


author: CHIEF JUSTICE TURNAGE

text:
    PACIFIC POWER & LIGHT COMPANY, Puget Sound Power and Light Company, Portland General Electric Co., Washington Water Power Co., and The Montana Power Company, Petitioners and Appellants, v. THE DEPARTMENT OF REVENUE of The State of Montana, Respondent and Respondent.
    No. 90-602.
    Submitted on briefs May 10, 1991.
    Decided June 11, 1991.
    249 Mont. 33.
    813 P.2d 433.

      Thomas H. Nelson, Stoel, Rives, Boley, Jones & Grey, Portland, Or., Donald R. Murray, Murphy, Robinson, Heckathorn & Phillips, Kalispell, for petitioners and appellants.
    Paul Van Tricht, Dept, of Revenue, for respondent and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

This is a judicial review of an administrative action. The District Court for the First Judicial District, Lewis and Clark County, affirmed the decision of the State Tax Appeals Board to dismiss the challenge made by petitioners and appellants to the classification of their “beneficial use” interest in electrical transmission lines. We affirm.

The issue is whether a taxpayer whose assessment has been revised by the Department of Revenue has a right to administrative review of the assessment in its entirety, or of only those aspects of the assessment which were changed in the revision.

Petitioners are investor-owned utility companies which use the Bonneville Power Administration (BPA) 500 kV transmission lines and have been taxed by the State of Montana for their “beneficial use” of the lines running through the state. Beginning in 1984, respondent Department of Revenue (DOR) has taxed the utilities for their “beneficial use” of the BPA transmission lines between Townsend, Montana, and Garrison, Montana, and since 1986 petitioners have been taxed for use of portions of the lines west of Garrison. Since 1984, petitioners’ “beneficial use” has been classified as Class II property under § 15-6-141, MCA.

Each year since 1984, the petitioners have paid their taxes under protest and have filed suit to protest the taxes on constitutional grounds. In 1988, DOR revised the beneficial use tax assessments for 1986 and 1987. This revision resulted in additional taxes to the petitioners of approximately $1.8 million for the two tax years in question. Petitioners attempted to file amended complaints in District Court raising the issue of whether their “beneficial use” interest had been incorrectly classified as Class 11 property. The District Court ordered that the filing of amended complaints would not be allowed. The District Court’s decisions in that case were affirmed in Pacific Pow. & Light v. Dept. of Revenue (Mont. 1991), [246 Mont. 398,] 804 P.2d 397, 48 St.Rep. 9.

Following the 1988 DOR revision of their taxes, petitioners also filed this appeal to STAB. The appeal included a claim that the “beneficial use” interest had been incorrectly classified as Class 11 property for the years 1986 and 1987. STAB granted DOR’s motion to dismiss that claim on grounds that the petitioners had not challenged the classification in a timely manner and that STAB was therefore without jurisdiction to hear the issue. Petitioners appealed that ruling to District Comb.

The District Court affirmed STAB’s ruling. It noted that § 15-2-302, MCA, requires that appeals to STAB must be made within thirty days of receipt of notice of a DOR decision. Because the revised assessments DOR sent out in 1988 for the years 1986 and 1987 did not change the property’s classification, the court reasoned, the appeal of the classification was not timely. The appeals on the 1986 and 1987 classifications were not made until twelve and twenty-four months after DOR classified petitioners’ property as Class 11 property for those years.

The standards for judicial review of an agency decision are set forth in § 2-4-704, MCA. The petitioners argue that the standard applicable to this case is that the court may reverse or modify if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are in violation of constitutional or statutory provisions. Section 2-4-704(2)(a)(i), MCA. Petitioners assert that, in this instance, “the usual application of administrative expertise which forms the underlying basis for the abuse of discretion standard is not present.”

The District Court pointed out that STAB concluded that it was without jurisdiction. The standard of review of conclusions of law is merely to determine if the agency’s interpretation of the law is correct. Steer, Inc. v. Dept. of Revenue (Mont. 1990), [245 Mont. 470,] 803 P.2d 601, 603, 47 St.Rep. 2199, 2200. We will apply that standard of review, which allows us to consider petitioners’ arguments fully.

Section 15-2-302, MCA, provides in relevant part:

“(1) A person may appeal to the state tax appeal board any action of the department of revenue involving:
“(a) property centrally assessed under chapter 23 of this title;
“(2) The appeal is made by filing a complaint with the board within 30 days following receipt of notice of the department action.

Petitioners argue that, because the 1988 revisions significantly modified the DOR’s overall assessment methodology, the entire tax assessment is open to appeal. They claim that complex tax assessments must be viewed as a whole, and cannot be separated neatly into distinct unrelated parts.

We disagree. The processes of assessment of property and classification of property are codified in different statutes. See Part 1, Chapter 6 of Title 15 and Part 1, Chapter 23 of Title 15. As this Court has stated, the process of classification is separate from the assessment of property or the determination of assessed value. Butte Electric Ry. Co. v. McIntyre (1924), 71 Mont. 21, 227 P. 61. Moreover,

“[t]he right to sue for taxes paid under protest is purely statutory. Without the statute, the right would not exist. The same statute which confers the right, fixes the time within which it must be exercised and the grounds upon which the right may be asserted.” Dolenty v. Broadwater County (1912), 45 Mont. 261, 266, 122 P. 919, 921.

The DOR’s action in 1988 changed only the assessment of petitioners’ property, not its classification as Class 11 property. The function of a court in construing a writing, including a statute, is “simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-4-101, MCA. We conclude that under § 15-2-302, MCA, the complaint filed with STAB was limited to the action taken by DOR in the revised assessment. Under that statute, any complaint based on alleged improper classification of petitioners’ property must have been filed within thirty days of the department action so classifying the property. The petitioners’ claim that their property was improperly classified was untimely, and STAB was correct in concluding that it was without jurisdiction to hear that portion of the complaint.

Affirmed.

JUSTICES HARRISON, HUNT, TRIEWEILER and McDonough concur.


author: JUSTICE WEBER

text:
    SARAH ELIZABETH GILPIN and Gary Gilpin, d/b/a BETTY’S DAY CARE, Plaintiffs and Appellants, v. STATE OF MONTANA; DEPARTMENT OF FAMILY SERVICES of the State of Montana; Hank Hudson, Acting Director; Pat Bergstrom, Community Social Worker Supervisor; Lorri Clark, Community Social Worker II; Marsha Brunett, Community Social Worker Supervisor; Linda Walker, Regional Administrator; and Jane Doe, Social Worker, Defendants and Respondents.
    No. 91-043.
    Submitted on briefs May 2, 1991.
    Decided June 11, 1991.
    249 Mont. 37.
    812 P.2d 1265.

      Barbara E. Bell, Bell & Marra, Great Falls, for plaintiffs and appellants.
    Ann Gilkey, Dept, of Family Services, Helena, for defendants and respondents.
   JUSTICE WEBER

delivered the Opinion of the Court.

The Gilpins initiated this suit for damages for temporary suspension of their day care license by the Department of Family Services. Following a hearing, the District Court for the Eighth Judicial District, Cascade County, dismissed the Gilpins’ claim. The Gilpins appeal. We affirm.

The dispositive issue presented is whether the District Court erred in dismissing the Gilpins’ claim on the grounds that the District Court lacked jurisdiction because the Gilpins had failed to exhaust the administrative remedies available to them.

The Gilpins assert that-under § 3-5-302(3), MCA, the District Court erred in concluding that it did not have jurisdiction. Section 3-5-302(3), MCA, provides:

“The district court has exclusive original jurisdiction in all civil actions that might result in a judgment against the state for the payment of money. (Emphasis added.)”

The Gilpins allege that because they have asked for monetary damages, § 3-5-302(3), MCA, allows them to avoid the Montana Administrative Procedure Act (MAPA), Title 2, Chapter 4, MCA. The underlying issue is whether their license was erroneously or maliciously suspended. This issue is clearly covered by MAPA.

The action taken by the Department in suspending the Gilpins’ license is considered to be an “adverse action” as defined in 11.2.201(c), ARM.

“(1) ‘Adverse action’ means:

“(d) an action by the department denying, suspending, reducing, revoking or failing to renew the license or the registration certificate of a provider.”

11.2.203(1), ARM, provides:

“(1) A claimant or provider who is aggrieved by an adverse action of the department shall be afforded the opportunity for a hearing as provided in this chapter.”

11.2.210, ARM, requires that an administrative review, either in person or by telephone, be conducted “with the purpose of resolving the case and avoiding an unnecessary hearing.”

Following the suspension of the day care license, Betty Gilpin requested a hearing regarding the Department’s suspension of her day care license. The hearing examiner in the Department of Family Services’ State Office appointed Boyce Fowler, a Department employee who had previously not been involved with the case, to conduct an administrative review of the grievance pursuant to 11.2.210, ARM. Fowler held a telephone conference with Betty Gilpin and discussed the scheduled administrative review. They concluded that since her license had been reinstated, an administrative review would not be helpful toward resolving the issue of suspension. Ms. Gilpin stated that she still wanted a hearing regarding the suspension. Mr. Fowler sent her a form which summarized the result of the administrative review and contained a request for a hearing. This form was never signed by the Gilpins, nor was it returned to the Department. Consequently, a hearing was not scheduled nor held. In lieu of proceeding with a hearing, the Gilpins filed the present claim in District Court.

Section 2-4-702(1), MCA, provides that a person who has “exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review ...” There has not been a final decision by the agency in this case regarding whether the suspension of the Gilpins’ license was proper. In addition, the Gilpins have not made a showing, pursuant to § 2-4-701, MCA, that a review of a final agency decision by a hearings examiner would not provide an adequate remedy to their grievance which would justify an immediate review of the agency’s action by the District Court.

We hold that the District Court did not err in dismissing the Gilpins’ claim on the grounds the District Court lacked jurisdiction because the Gilpins had failed to exhaust the administrative remedies available to them. Affirmed.

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


author: JUSTICE HUNT JUSTICE TRIEWEILER

text:
    NORFOLK HOLDINGS, INC., Petitioner and Appellant v. THE MONTANA DEPARTMENT OF REVENUE, Respondent and Respondent.
    No. 90-393.
    Submitted May 7, 1991.
    Decided June 13, 1991.
    249 Mont. 40.
    813 P.2d 460.

      James P. Sites argued, Louis R. Moore, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, for petitioner and appellant.
    Geralyn Driscoll argued, Dept, of Revenue, Helena, for respondent and respondent.
   JUSTICE HUNT

delivered the opinion of the Court.

Norfolk Holdings, Inc., (Taxpayer) appeals from an order of the First Judicial District Court, Lewis and Clark County, holding that Taxpayer’s claim for a refund was barred by the statute of limitations. We affirm.

The sole issue raised on appeal is whether an automatic extension of time for filing corporate license tax returns may be included in computing the five-year limitations period in § 15-31-509(2), MCA.

Taxpayer reported its 1982 corporate license tax on a calendar year basis. On May 13,1983, it filed a tentative 1982 tax return form and paid $241,012 in estimated tax. At the same time, Taxpayer applied for an automatic extension of time -until October 15, 1983, to file its return.

On May 14, 1984, Taxpayer filed its finalized return for 1982, which showed a tax liability of $197,267. Thereafter, the State of Montana, Department of Revenue (Department), refunded $43,745 — the difference between the estimated tax payment and the finalized amount due.

On June 20, 1988, the Department received from Taxpayer amended returns and claims for refunds for tax years 1982 through 1986. The Department issued refunds for all years except 1982. It refused the refund claimed for 1982, contending that the statute of limitations for a refund of that year’s taxes had expired.

Taxpayer appealed to the State Tax Appeal Board. With the Department’s consent, the case was moved to District Court for interlocutory adjudication, where the matter was submitted on agreed facts. The District Court ruled in favor of the Department, concluding that the five-year period of limitations in § 15-31-509(2) MCA, does not include consideration of any extensions of time for filing returns. Taxpayer appeals.

Section 15-31-101(3), MCA, mandates that corporate license taxes are “due and payable on the 15th day of the 5th month following the close of the taxable year of the corporation....” Section 15-31-111(2), MCA, establishes the due date for filing corporate license tax returns. The statute reads in its entirety:

“If the corporation is reporting on a calendar year basis, the return shall be filed with the department on or before May 15 following the close of the calendar year, and if reporting on a fiscal year basis, the return shall be filed with the department on or before the 15th day of the 5th month following the close of its fiscal year. Upon application, a corporation shall be allowed an automatic extension of time for filing its return ofl to 6 months following the date prescribed for filing of its tax return. The application is to be made on such forms as the department shall prescribe. (Emphasis added.)

Section 15-31-111(2), MCA.

Thus, tax returns of corporations filing on a calendar year basis are due on May 15 of the following year. However, a corporate taxpayer may apply for an automatic extension of up to six months for filing the return. Section 15-31-111(2), MCA. If the Department deems that good cause exists for granting more time for filing, it may grant an extension above and beyond that received with the automatic extension. Section 15-31-111(3), MCA.

A taxpayer has five years in which to claim a refund of corporate license taxes. Section 15-31-509(2), MCA. The statute of limitations provides:

“No refund or credit shall be allowed or paid with respect to the year for which a return is filed after 5 years from the last day prescribed for filing the return or after 1 year from the date of the overpayment, whichever period expires the later, unless before the expiration of such period the taxpayer files a claim therefor or the department of revenue has determined the existence of the overpayment and has approved the refund or credit thereof. If the taxpayer has agreed in writing under the provisions of subsection (1) of this section to extend the time within which the department may propose an additional assessment, the period within which a claim for refund or credit may be filed or a credit or refund allowed in the event no claim is filed shall automatically be so extended. (Emphasis added.)” Section 15-31-509(2), MCA.

Taxpayer argues that the “last day prescribed for filing the return” in this statute includes the automatic extension of time provided for in § 15-31-111(2), MCA. The Department, on the other hand, argues that “the last day prescribed for filing the return” does not include any extensions of time received by the taxpayer. The Department maintains that, for a corporation filing on a calendar year basis, the “last day prescribed for filing” is May 15 following the close of the calendar year. We agree with the Department.

A statute must be construed according to the plain meaning of the language therein. State ex rel. Woodahl v. District Court, 162 Mont. 283, 292, 511 P.2d 318, 323 (1973). In this case, the operative word to be construed is “prescribed.” Black’s Law Dictionary 1345 (6th ed. 1990) defines “prescribe” as follows:

“To lay down authoritatively as a guide, direction, or rule; to impose as a peremptory order; to dictate; to point, to direct; to give as a guide, direction, or rule of action; to give law.

Following this definition, the plain meaning of “prescribe” is to “lay down authoritatively.” In § 15-31-111(2), MCA, the legislature statutorily established a due date for filing a corporate license tax return, i.e., May 15 following the close of the taxable year for corporations filing on a calendar year basis. This statutorily established day for filing the return is the day the legislature “laid down authoritatively” or “prescribed” for filing the return.

Although § 15-31-111(2), MCA, allows the taxpayer to automatically extend the period of time for fifing for up to six months, the extension applied for by the taxpayer is not included in determining when the limitations period begins to run. If the statute did not begin to run until the exhaustion of the automatic extension, the day prescribed for filing would be a day established by the taxpayer, not the legislature. The day would no longer be “laid down authoritatively” but would depend upon the whim of the taxpayer. “Prescribe” would be stripped of all meaning. The automatic extension simply gives the taxpayer additional time to prepare the return. It does not change the day prescribed by the legislature for filing the return.

In 1972, the Department promulgated § 42.23.601, ARM, which interprets the limitations period for claims for refunds of corporate license taxes. The regulation provides as follows:

“No refund or credit may be allowed or paid with respect to the year for which a return is filed, unless, within 5 years from the last day prescribed for filing the return or after 1 year from the date of the overpayment (whichever period expires later) the taxpayer files a claim for refund thereof or the department has determined the existence of the overpayment and has approved refunding or crediting thereof. The 5-year period is determined without regard to any extension which may have been granted. (Emphasis added.)”

Section 42.23.601, ARM.

The regulation reflects the Department’s conviction that any extensions of time received for filing the return are excluded from the computation of the running of the statute of limitations. The adoption of the regulation, which is not in conflict with the statute and is reasonably necessary to effectuate the purpose of the statute, is a valid exercise of the Department’s rule making authority. Section 2-4-305(6), MCA. This Court shows great deference to an interpretation given a statute by the agency charged with its administration. D’Ewart v. Neibauer, 228 Mont. 335, 340, 742 P.2d 1015, 1018 (1987) (quoting Department of Revenue v. Puget Sound Power & Light Co., 179 Mont. 255, 262, 587 P.2d 1282, 1286 (1978)).

In conclusion, the statute of limitations for claiming refunds of corporate license taxes begins to run on the date statutorily established by the legislature. This date does not include any automatic extension of time applied for and received by the taxpayer under § 15-31-111(2), MCA.

Taxpayer in this case filed on a calendar year basis. Therefore, the limitations period for its 1982 taxes began to run on May 15, 1983, and expired five years later on May 15, 1988. Because Taxpayer did not file for a refund until June 20, 1988, its claim was time barred.

Affirmed.

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

JUSTICE TRIEWEILER

dissenting.

I respectfully dissent from the opinion of the majority.

Although the majority opinion discussed traditional rules of statutory construction, I believe it overlooks the most important rule of construction which is applicable in this case. That rule is as follows:

“In interpreting tax statutes it should always be kept in mind that they are to be strictly construed against the taxing authorities, and in favor of the taxpayer.”

Butte Country Club v. Dept. of Revenue, 186 Mont. 424, 430, 608 P.2d 111, 115 (1980).

In this case, the taxpayer’s entitlement to recover a refund hinges on our interpretation of the phrase “the last day prescribed,” as used in § 15-31-509(2), MCA. As the majority has correctly stated, no refund can be paid unless a claim for that refund has been filed within five years from the last day prescribed for filing the return.

The last day prescribed for filing the return is set forth in § 15-31-111(2), MCA, which provides that the return is due on May 15 of the next calendar year unless an application for an automatic extension is filed. In that event, the tax return is due on the date to which the extension is granted.

“Time prescribed for filing” is nowhere defined in the Title on taxation. However, I believe it is reasonable to interpret the time prescribed by § 15-31-111(2), MCA, to be May 15, plus any additional period granted pursuant to the taxpayer’s application for an automatic extension. This conclusion would be consistent with the decision of the Maryland Court of Appeals in Compt. of Treas., Inc. Tax Div. v. Diebold, Inc., 279 Md. 401, 369 A.2d 77 (1977). Although the language being interpreted in that case was not identical to the language in question here, the facts are similar and it provides the only precedent cited by either party which appears to be on point on the issue we have been asked to decide. In the Diebold decision, the Maryland taxpayer’s income tax returns for 1966 and 1967 were due on March 15 following each taxable year. However, for each tax return that taxpayer was granted an extension to July 15. He claimed a right to a refund for the 1966 taxable year on July 14,1970, and for the 1967 return on May 7, 1971. The Maryland Comptroller found that the refunds claimed for the years 1966 and 1967 were barred by a statute of limitations which required that refund claims be filed within three years from the date the refund was “due to be filed.” The Maryland Tax Court concluded, as this Court has, that the statute of limitations ran from the date when the returns were originally due and not from the date to which extensions were granted. However, the Maryland Court of Appeals disagreed and stated as follows:

“Diebold contends, and we think correctly, that the Tax Court erred when it concluded that Code Art. 81, § 310(b) mandated that the three-year period of limitations ran from the date when the 1966 and 1967 returns were originally due to be filed (15 March 1967 and 15 March 1968) and not from the date to which extensions were granted under Art. 81, §§ 305 and 306.”

As we construe the language of § 310(b):

“ ‘Any claim for a refund made under and pursuant hereto ... shall be filed within three years from the date the return was due to be filed ...’
“we think that it is clearly contemplated that limitations will run from the date of any extension. Obviously, that part of § 310(c) which requires the State to pay interest on any refunds ‘... accounting from the date the return ... was due to be filed ...’ would not be interpreted as requiring the payment of interest from the original due date, rather than from the date to which an extension has been granted.”

Diebold, 369 A.2d at 81.

In this case, there are two plausible explanations for what the legislature meant by “last day prescribed for filing.” However, since the legislature did not bother to explain what was meant, I believe, based upon the authority previously cited, that explanation which is most favorable to the taxpayer should be adopted.

For these reasons, I dissent from the majority opinion and would reverse the judgment of the District Court.