author: MR. JUSTICE McDONOUGH

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TRACY DOUGLAS SMITH, Defendant and Appellant.
    No. 87-248.
    Submitted on Briefs March 24, 1988.
    Decided May 26, 1988.
    755 P.2d 569.

      Leonard J. Haxby, Butte, for defendant and appellant.
    Mike Greely, Atty. Gen., Barbara Claassen, Asst. Atty. Gen. Helena, Patrick L. Paul, Co. Atty., Stephen Hagerman, Deputy Co. Atty., Great Falls, for plaintiff and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from a criminal conviction. A jury in the Eighth Judicial District found appellant Tracy Douglas Smith guilty of aggravated kidnapping. Smith was sentenced to 25 years in prison for the offense, with 10 years suspended. Smith also received an additional sentence of 10 years for being a persistent felony offender, and 5 years for the commission of a crime with a weapon. Smith appeals the conviction and the sentencing. We affirm as to Issues 1, 2, 3, and 5, and reverse Issue 4 in regard to Smith’s enhanced sentence for being a persistent felony offender. The other subissues in Issue 4 are affirmed.

Smith raises the following issues for review:

(1) Did the Court err in denying Smith’s motion to dismiss for violation of Smith’s right to a speedy trial?

(2) Did ineffective assistance of counsel result in the denial of Smith’s constitutional right to counsel?

(3) Did prosecutorial misconduct result in abridgment or denial of Smith’s constitutional rights?

(4) Did the Court err by failing to follow substantive and procedural requirements in sentencing Smith?

(5) Did the Court err by failing to properly instruct the jury?

The facts briefly are as follows: On July 5, 1986, Smith and three other individuals; Fred Gierke, Leland LaPier, and Kim Stevens, rode in LaPier’s car to a Great Falls residence where Gierke hoped to find Vivian Tulickas. When they arrived they observed Tulickas and Tulickas’s boyfriend, Steven Frey, entering Frey’s car. Smith and LaPier approached Frey’s car and LaPier ordered Tulickas out of the car while Smith restrained Frey. Tulickas, LaPier, and Smith then returned to LaPier’s car where Gierke sat waiting to speak to Tulickas. After Tulickas was positioned in the back seat with Gierke, Gierke began to- slap Tulickas and demand the return of money he believed Tulickas had stolen from him. Gierke then ordered LaPier to drive to a field outside of town where he continued to beat Tulickas. Smith participated in the assault by holding a gun and by giving encouragement to Gierke to beat Tulickas more severely. During the beating, Tulickas denied stealing Gierke’s money, but promised to give Gierke $100 and a bus ticket she claimed to have at a residence in Great Falls. At that point Gierke ceased assaulting Tulickas and agreed to take her back to Great Falls to retrieve the money and the ticket.

After LaPier’s car had carried Tulickas from the scene of the abduction, Frey called the police and reported the license number on the car. When LaPier’s car appeared in Great Falls on its way to retrieve the money and the bus ticket, police spotted and stopped the vehicle, freed Tulickas, and arrested the other passengers. Smith’s participation in the abduction resulted in the aggravated kidnapping conviction.

ISSUE I.

Smith claims that his right to a speedy trial was denied due to delay on the part of the State. The State contends that the delay from the date of arrest, July 6, 1986, to the date of trial, November 17,1986, is not sufficiently long to trigger further speedy trial analysis. We agree with the State.

The length of delay is the first of four factors to be considered in analyzing speedy trial claims. State v. Kerns (Mont. 1986), [223 Mont. 172,] 725 P.2d 1190, 1191, 43 St.Rep. 1632, 1635. And unless the delay is “long enough to be presumptively prejudicial, no further inquiry is required.” Kerns, 725 P.2d at 1191. In this case, the delay of 134 days between the arrest and the trial is not sufficiently long to trigger further analysis, and we affirm on this issue.

ISSUE II.

Smith claims that the ineffective representation provided by his legal counsel violated the right to counsel guarantees found in the United States Constitution, Sixth and Fourteenth Amendments, and the Montana Constitution, Article II, Section 24. Smith contends that the specific errors on the part of his counsel were: failure to move for an order for a psychiatric evaluation of Smith, failure to call favorable witnesses, and failure to allow Smith to testify. The State contends that Smith has failed to show that his counsel’s performance was deficient. We agree with the State.

To make a valid claim for ineffective assistance of counsel, the defendant must show that his counsel made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment, and that the deficient performance prejudiced the defense. State v. Matson (Mont. 1987), [227 Mont. 36,] 736 P.2d 971, 977, 44 St.Rep. 874, 882. Furthermore, “we will not allow unsupported allegations to brand counsel’s performance as deficient.” Matson, 736 P.2d at 977. The only evidence of ineffective assistance of counsel comes from Smith’s own allegations. The record, on the other hand, reveals that Smith’s counsel provided competent representation. Thus, we find Smith’s allegations to be unfounded and we affirm on this issue.

ISSUE III.

Smith contends that remarks made by the prosecutor in the State’s closing argument constituted prosecutorial misconduct. The remarks were to the effect that men should not physically assault women, and that the period of physical restraint in an alleged kidnapping may be as short as 10 to 15 minutes or less. The State contends that no objection was made to the remarks in the lower court, and thus no appealable issue exists. Smith urges this Court to apply the plain error rule. We find the plain error rule inapplicable, and agree with the State that this is not an appealable issue. See State v. Pease (Mont. 1986), [222 Mont. 455,] 724 P.2d 153, 163, 43 St.Rep. 1417, 1430. Thus we affirm on this issue.

ISSUE IV.

Smith contends that the sentencing procedures were deficient in several respects:

A. Smith contends that the court erred in adding 10 years to Smith’s sentence for being a persistent felony offender because the trial court’s decision is based on evidence improperly before the court. Specifically, Smith contends that no proper foundation was laid for: admission of the judgment documenting Smith’s previous conviction; admission of testimony on Smith’s fingerprints as recorded in the record from Smith’s previous conviction; and admission of a tape recording of a telephone conversation between Smith and a Great Palls police officer. The recording documents a call made by Smith to police wherein Smith complains of police harassment.

The State responds that Smith’s claim on this issue fails because the rules of evidence do not apply to sentencing, and because the Court relied on competent evidence in sentencing Smith. We agree and affirm on this subissue. See State v. Lamere (1983), 202 Mont. 313, 321-22, 658 P.2d 376, 380-81.

B. Smith contends that the trial court erroneously relied on Section 46-18-501(2)(b), MCA, to find that Smith was a persistent felony offender because over five years had passed since the commission of the current offense and Smith’s previous felony. The State responds that probation from Smith’s previous suspended sentence constitutes commitment, and that the probation ended less than five years before the commission of the current offense.

Section 46-18-501(2)(b), MCA, defines a defendant as a persistent felony offender if the defendant was previously convicted of a felony and less than five years have passed since:

“(b) the offender’s release on parole or otherwise from prison or other commitment imposed as a result of the previous felony conviction.”

Section 46-18-501 (2) (b), MCA. (Emphasis added.)

The judgment for the previous conviction, entered on December 20, 1979, sentenced Smith to 3 years in prison with execution of the sentence suspended provided that during the suspension Smith abide by the rules and regulations of the Montana State Board of Pardons and that he not possess, use, or sell dangerous drugs. In addition, the judgment provided that Smith would submit his person, his residence, and his vehicles to search and seizure at any time by probation officers, police officers, or other lawful authorities without a search warrant and without a prior requirement that probable cause be shown, and that Smith obey all United States, state, and municipal laws.

None of these probationary conditions constitute “commitment” under Section 46-18-501(2)(b), MCA. Commitment may be defined as:

“[T]he act of taking or sending to the prison, mental health facility, or the like. A person is committed when he is actually sentenced to confinement by a court as contrasted with a suspended sentence or probation.”

Black’s Law Dictionary 248 (5th ed. 1979). The distinction between probation and confinement in defining commitment is supported by other usage of the word “commitment” in the code. For example, after revocation of a suspended sentence the defendant is ordered “committed”. Section 46-18-203, MCA. And Section 46-19-101, MCA, provides:

“Commitment of defendant. Upon rendition of judgment after pronouncement of sentence imposing punishment of imprisonment or death, the court shall commit the defendant to the custody of the sheriff, who shall deliver the defendant to the place of his confinement or execution.”

Section 46-19-101, MCA. Thus, the plain meaning of the word “commitment” reveals that the period of commitment begins when the defendant is handed over to law enforcement personnel for confinement, and our analysis need not proceed further because the plain meaning of the word controls its interpretation. State v. Hubbard (1982), 200 Mont. 106, 111, 649 P.2d 1331, 1333. However, our resolution of this issue is also supported by the apparent purpose of employing the term “other commitment” for initiating the period of time between convictions. That intent, as demonstrated by the other event which initiates the five year period in this subsection; release from prison, is to have the time start to rim when the habitual offender is once again free, if he or she chooses, to victimize society. Thus, this subissue is reversed, and the enhanced sentence of ten years received under Section 46-18-501(2)(b), MCA, is hereby declared to be void and we order it stricken. See Lewis v. State (1969), 153 Mont. 460, 463, 457 P.2d 765, 766; 24B C.J.S Criminal Law Section 1946 (1962).

C. Smith contends that the trial court erred by failing to set out with particularity its findings in regard to dangerous offender status. The State contends that the District Court’s sentence contains adequate findings. A review of the sentence shows that the District Court found the following facts in designating Smith a dangerous offender:

“1. The Defendant admits to using ‘lots of cocaine’ on a daily basis prior to his arrest.
“2. The probation and parole officer found the Defendant to have intense anger for any kind of authority.
“3. A long history of misdemeanor arrests.
“4. The testimony of several witnesses that the Defendant has threatened to harm them or their families.
“5. The commission of a serious crime while still on parole.”

We hold that these findings satisfy the mandate of Section 46-18-404, MCA, and we affirm on this subissue.

D. Smith also contends that the sentence in open court varied with the sentence document which incorporated the dangerous offender findings. Thus, according to Smith, the sentence violates Montana law. Smith fails to cite the law violated, but the contention apparently addresses the open court sentencing requirements of Section 46-18-102, MCA, which states:

“(1) The judgment shall be rendered in open court.
“(2) If the verdict or finding is not guilty, judgment shall be rendered immediately and the defendant shall be discharged from custody or from the obligation of his bail bond.
“(3) (a) If the verdict or finding is guilty, sentence shall be pronounced and judgment rendered within a reasonable time.
“(b) When the sentence is pronounced, the judge shall clearly state for the record his reasons for imposing the sentence.”

At the time of the sentence the District Court stated:

“Now, the Court has already found you to be a persistent felony offender. A jury of the citizens of this state have found you guilty of aggravated kidnapping. And the Court sat through the testimony, and the Court finds that this was a felony that was committed with a dangerous weapon, a gun.
“So it’s the sentence of this Court on the offense of aggravated kidnapping that you be confined to the Montana State Penitentiary for a period of 25 years. That ten of those years are suspended.
“That on the persistent felony offender charge, that you be given an additional 10 years. That that time is to be consecutive to the time for the aggravated kidnapping charge.
“For the commission of the offense with a dangerous weapon, the Court is going to add on an additional five years. And that is to run consecutive with the previous two sentences.
“For purposes of parole eligibility, the Court is declaring you a dangerous offender.”

We refuse to reverse on this subissue because the reasons for declaring Smith a dangerous offender are apparent in the transcript of the sentencing hearing, and thus any failure to articulate them in pronouncing the sentence constitutes harmless error. See State v. Hintz (Mont. 1984), [213 Mont. 364,] 691 P.2d 814, 816, 41 St.Rep. 2172, 2176. Thus, except as to subissue B, this issue is affirmed.

ISSUE V.

Smith’s final argument is that the trial court erred by giving the following instruction:

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

Smith contends that the above instruction is an improper adaptation of the instruction used when a defendant’s flight is relevant to the defendant’s consciousness of guilt. Smith argues that instructing the jury that it may consider intimidation as evidence of consciousness of guilt is highly prejudicial. Smith fails to explain why the instruction was highly prejudicial.

The State points out that the instruction is contained in the Montana Criminal Jury Instructions, and that the comment to the instruction states that it is appropriate where evidence of intimidation exists. Evidence of intimidation on the part of Smith existed in this case. Thus, Smith’s argument here lacks merit. We affirm on all issues except as set out in regard to Issue 4.

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


source: Caselaw Access Project

license: Public Domain

text:
    AMERICAN MEDICAL OXYGEN CO., a Montana corporation, Plaintiff and Appellant, v. MONTANA DEACONESS MEDICAL CENTER, et al., Defendants and Respondents.
    No. 87-558.
    Submitted on Briefs March 31, 1988.
    Decided May 26, 1988.
    755 P.2d 37.

      Philip P. McGimpsey, Billings, for plaintiff and appellant.
    Ugrin, Alexander, Zadick & Slovak, Neil E. Ugrin, Great Falls, for defendants and respondents.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Plaintiff American Medical Oxygen Co. (American) appeals from an order of the District Court of the Eighth Judicial District, Cascade County, granting summary judgment in favor of defendants Montana Deaconess Medical Center (Deaconess) and Spectrum Medical Supply, Inc. (Spectrum), as to claims based on Montana antitrust law, and dismissing the remainder of American’s complaint. We affirm.

American presents only one issue for review by this Court:

Did the District Court abuse its discretion by failing to decide both plaintiff’s and defendants’ motions to dismiss when it granted defendants’ motion for summary judgment?

American is in the business of providing medical oxygen supplies and home oxygen care. Spectrum, a wholly-owned subsidiary of Deaconess is in competition with American, providing oxygen supply systems to private residences and other locations.

On August 8, 1986, American filed a complaint against Deaconess and Spectrum containing essentially four counts:

1. tortious interference with an established business relationship,
2. violation of state and federal antitrust laws,
3. unfair use of Deaconess’s tax-exempt status under the Internal Revenue Code, and
4. violation of the “Anti-kickback Provision” of the Social Security Act.

The complaint sought an injunction against Spectrum prohibiting it from doing business, as well as economic and punitive damages.

On April 6, 1987, Deaconess and Spectrum filed “Defendants’ Motion to Dismiss, or, Alternatively, For Summary Judgment” as to Counts Two, Three and Four of the complaint. The supporting memorandum cited lack of jurisdiction over claims brought under federal law, failure to state a claim upon which relief can be granted and lack of standing as grounds for dismissal or summary judgment.

American did not file a brief or memorandum in response to the motion, but instead filed “Plaintiffs Voluntary Motion to Dismiss Complaint” on July 9, 1987. American’s motion sought to have the entire complaint dismissed without prejudice.

On September 2, 1987, after hearing oral argument District Judge Thomas M. McKittrick rendered an order dismissing Count One of American’s complaint and all other claims based on federal law, and granting summary judgment in favor of Deaconess and Spectrum on American’s state antitrust claims.

On appeal, this Court is asked to determine whether the District Court abused its discretion in proceeding as it did. The District Court’s judgment, when based on substantial credible evidence, will not be altered unless a clear abuse of discretion is shown. In re Marriage of Stewart (1988), [232 Mont. 40,] [757 P.2d 765], __ citing In re Marriage of Watson (Mont. 1987), [227 Mont. 383,] 739 P.2d 951, 954, 44 St.Rep. 1167, 1170.

American argues in its brief that the judge was in error when he “failed to decide both the defendants’ and plaintiffs Cross-Motions to Dismiss prior to reaching the defendants’ alternative Motion for Summary Judgment.” (Emphasis in the original.) American states, without citing authority, there were in effect three motions before the District Court and those motions had an order of priority; i.e., the judge should have decided Deaconess and Spectrum’s motion to dismiss first, American’s voluntary motion to dismiss second and Deaconess and Spectrum’s motion for summary judgment third, the net effect being the dismissal of the entire complaint without prejudice. We do not agree.

The motion filed by Deaconess and Spectrum asserted that American had failed to state a claim upon which relief can be granted. The supporting memorandum detailed the factual bases for this defense, accompanied by attached affidavits and other exhibits. Under the Montana Rules of Civil Procedure, a motion to dismiss that raises the failure to state a claim as a defense, and presents factual matters outside the pleading, “shall be treated as one for summary judgment and disposed of as provided in Rule 56 . . . .” M.R.Civ.P. 12(b).

American’s brief makes much of the assertion that the caption “Defendants’ Motion to Dismiss, or, Alternatively, For Summary Judgment” means the primary motion made by Deaconess and Spectrum was one for dismissal, and the request for summary judgment was secondary. This characterization, however, is at variance with the application of Rule 12(b). In Schlegel v. Moorhead (1978), 177 Mont. 456, 582 P.2d 336, this Court reviewed a district court order granting a motion with a caption identical to the one at issue here. The order, however, was phrased only in terms of granting a motion to dismiss for failure to state a claim. On review, rather than simply looking to the title and phrasing of the motion and order, this Court looked to the record to determine what effect the motion had on the case. The opinion stated, “regardless of how the order was phrased . . . the trial court’s order constitutes a grant of summary judgment and shall be given effect as such.” Schlegel, 582 P.2d at 338. In this case, Rule 12(b) dictates the motion be given the effect of requesting summary judgment.

At the hearing on July 29, therefore, the court was presented with not three, but two motions. In chronological order, they were the motion filed by Deaconess and Spectrum, to be treated as a motion for summary judgment under Rule 12(b), and American’s motion to dismiss.

The court’s course in ruling on the summary judgment motion is supported by applicable law. As of the hearing date, American had not responded to the summary judgment motion. The court was thus presented with a situation governed by Rule 56(e), which states,

“When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” M.R.Civ.P. 56(e); Payne v. Stratman (Mont. 1987), [229 Mont. 377,] 747 P.2d 210, 44 St.Rep. 2059, citing Bedford v. Jordan (Mont. 1985), [215 Mont. 508,] 698 P.2d 854, 42 St.Rep. 589. The court could not address the claims in American’s complaint that were based on federal law, because it was without jurisdiction, and a judgment on those claims would therefore have been void. In re Marriage of Kraut (Mont. 1985), [215 Mont. 170,] 696 P.2d 981, 42 St.Rep. 268. However, the court had full jurisdiction over the state antitrust claims under Section 30-14-222, MCA, and proceeded to rule on the motion as it applied to those claims. The court then turned to American’s motion to dismiss its complaint without prejudice, which it granted as to the claims not subject to summary judgment.

Contrary to American’s assertions on appeal, the District Court properly addressed all motions before it at the hearing. We conclude that there was no abuse of discretion in this case.

We affirm the decision of the District Court.

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


author: MR. JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DARRELL W. CRABB, Defendant and Appellant.
    No. 87-571.
    Submitted on Briefs April 7, 1988.
    Decided May 26, 1988.
    756 P.2d 1120.

      Moses Law Firm, Stephen C. Moses, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, Wm. Neis Swandal, Dan McGregor, Deputy County Atty., Livingston, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

The defendant/appellant, Darrell W. Crabb, was convicted of one charge of felony assault as specified in Section 45-5-202(2) (b), MCA. Trial was held before a jury in the Sixth Judicial District, Park County, with the Honorable Byron L. Robb presiding. Crabb appeals his conviction and we affirm.

Defendant/appellant, Darrell Crabb (Crabb) along with his wife, owns and operates the All Seasons Inn located in Cooke City, Montana. Geri Donahue worked at the Inn and her employment ceased in November 1986. Following the termination of Donahue’s employment, plans were made for her to be transported to Livingston, Montana by a friend, William Howard, on November 18, 1986. While traveling to Cooke City from Livingston, Howard experienced car trouble and was eventually assisted by a friend, Claude Nead. Howard and Nead then proceeded to Cooke City driving Nead’s van, and arrived at approximately 10:30 p.m. to 11:00 p.m.

Despite the fact that Donahue lived in the employee living quarters in the basement of the Inn, Howard and Nead entered the Inn and began to look for Donahue on the second and third floors. Testimony at trial indicated that Nead and Howard may not have realized the location of Donahue’s living quarters. Crabb resided on the third floor with his wife and became concerned when he heard voices and noises in the hallway. Apparently, business was very slow at this particular time of year and most rooms were empty and not prepared to receive customers. Crabb tucked a revolver into his pants and went to investigate.

Nead and Howard eventually located Donahue back in the lobby area of the Inn. After a short conversation, Crabb entered the lobby area and a dispute arose. In the course of the dispute, Crabb revealed his revolver and pointed it at Howard. Testimony received at trial indicated that Crabb threatened to shoot Howard as he aimed the gun at him. Following an exchange of words, Crabb eventually ceased pointing the revolver at Howard. Some of Donahue’s possessions were then loaded into the van and the group departed. Upon arriving in Gardiner, Montana, a deputy sheriff was contacted and the incident was reported.

Crabb was later charged by information on one count of felony assault, Section 45-5-202(2)(b), MCA, charging that he “purposely or knowingly caused reasonable apprehension of serious bodily injury in William Howard by use of a weapon to wit, a revolver, by pointing a revolver at him and threatening him.” A jury trial was commenced on August 3, 1987 and Crabb was found guilty. Crabb received a three year deferred sentence and was placed on probation.

Crabb raises four issues for our consideration on appeal:

1. Does the evidence sufficiently support the jury verdict of guilty?
2. Was there a justifiable reason for the defendant to threaten the use of force?
3. Did the defendant “use” his weapon?
4. Did the State prove the appellant acted with an appropriate mental state?

Sufficiency of the evidence.

Crabb asserts the evidence presented at trial does not support the verdict. As to this particular issue, Crabb makes no additional specific claims as to why the evidence is insufficient. In considering whether the evidence is sufficient to support a conviction for a criminal offense we will look to the following standard of review as stated in Jackson v. Virginia (1979), 443 U.S. 307, 318, 319, 99 S.Ct. 2781, 2788. 2789, 61 L.Ed.2d 560, 573:

“[T]he sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.

“But this inquiry does not require a court to ‘ask itself whether it believes whether the evidence at the trial established guilt beyond a reasonable doubt.’ Woodby v. INS, 385 US [276] at 282, 17 LEd2d 362, 87 SCt 483 [at 486] . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 US [356] at 362, 32 LEd2d 152, 92 SCt 1620 [1624, 1625]. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” (Emphasis in original.)

See, State v. Lundblade (Mont. 1986), [221 Mont. 185,] 717 P.2d 575, 577, 43 St.Rep. 732, 733, 734. In reviewing the record we find there is sufficient evidence upon which a rational trier of fact could conclude that the defendant was guilty of felony assault as specified in Section 45-5-202(2)(b), MCA.

Use of force.

Crabb contends he was merely using a reasonable threat of force to protect himself and his property. Specifically, Crabb relies on three statutes which state, in pertinent part:

“45-3-102. Use of force in defense of person. A person is justified in the use of force or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force . . .
“45-3-103. Use of force in defense of occupied structure. A person is justified in the use of force or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other’s unlawful entry into or attack upon an occupied structure
“45-3-104. Use of force in defense of other property. A person is justified in the use of force or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to prevent or terminate such other’s trespass on or other tortious or criminal interference with either real property (other than an occupied structure) or personal property lawfully in his possession or in the possession of another who is a member of his immediate family or household or of a person whose property he has a legal duty to protect. . .”

Crabb states that all three statutes gave him the authority to threaten the use of force because he reasonably believed the threat was necessary to protect himself, the Inn, and his other property.

All three statutes require that the party implementing the threat of force “reasonably believe” that such action is necessary. Determining whether such a reasonable belief existed is necessarily a factual determination which belonged to the jury. See, State v. Larson (1978), 175 Mont. 395, 400, 401, 574 P.2d 266, 269 (determining whether the circumstances were such that defendant was justified in shooting another is a question of fact for the jury). The jury was instructed as to all three of the above statutes addressing the justifiable use of force and still decided Crabb was guilty of felony assault. Therefore, the jury has made a factual determination that it was not reasonable for Crabb to believe such a threat of force was necessary. After a careful review of the record, we find there was sufficient evidence for such a finding.

Crabb goes to great lengths to argue that he had the right to use the threat of force to eject Howard and Nead because they were committing a criminal trespass. One commits a criminal trespass in Montana if he “knowingly enters or remains unlawfully in an occupied structure . . .” Section 45-6-203(l)(a), MCA. “A person enters or remains unlawfully in or upon any . . . occupied structure . . . when he is not licensed, invited or otherwise privileged to do so . . . [and the privilege] may be revoked at any time by personal communication of notice by the landowner.” Section 45-6-201(1), MCA. The criminal trespass statute is designed to prohibit both the situation where one enters onto property knowing that entry is forbidden, as well as the situation where one remains on the premises of another after being notified to depart. Crabb cannot argue that the initial entry by Howard and Nead was a criminal trespass because, despite the late hour, the Inn was open for receiving business at the time of their entry. Instead, Crabb’s trespass argument must depend on the assertion that he commanded them to leave and they refused to do so. Under these facts, Crabb would have been justified in using a threat of force to the extent he reasonably believed such conduct was necessary to terminate the criminal trespass. Section 45-3-103, MCA. However, as we have already noted, this statute requires the reasonable belief that such force is necessary and the jury failed to find such a reasonable belief. Additionally, there was evidence allowing the jury to conclude that Howard and Nead had not achieved the status of trespassers. Although Crabb testified he commanded them to leave, he also testified he allowed them one-half hour to load Donahue’s property and vacate the premises. Howard’s testimony indicated that Crabb did not tell them to leave the premises until long after the confrontation involving the weapon. We conclude there was sufficient evidence from which the jury could find that Howard and Nead were not trespassers.

Finally, Crabb contends he has the right to be “more protective of himself’ because he was in an isolated situation in Cooke City. Evidence at trial demonstrated there is no full time law enforcement agency in Cooke City and that the nearest Park County deputy sheriff is usually some distance away. We concede that such an isolated situation may more often result in facts which allow the justifiable use of force or threat of force. However, Crabb has no additional rights to defend himself or his property simply because he resides in an isolated area. The laws governing the justifiable use of force or threat of force obviously remain the same throughout the state and control an individual’s actions wherever he resides in the state.

“Use” of a weapon.

Section 45-5-202(2) (b), MCA, provides that “a person commits the offense of felony assault if he purposely or knowingly causes reasonable apprehension of serious bodily injury in another by use of a weapon ...” This is the provision under which Crabb was charged and convicted. Crabb contends he did not actually “use” his revolver. Crabb states there is no claim that the weapon was ever fired and concludes one does not “use” a weapon unless it is fired or used as a club. Therefore, Crabb argues that the State failed to prove a necessary element of the offense.

In viewing the evidence in the light most favorable to the prosecution, that evidence demonstrates that Crabb purposely or knowingly pointed a loaded .44 magnum revolver with an eight inch barrel at Howard’s face from a distance of approximately six feet and threatened to kill Howard. It is ludicrous for Crabb’s counsel to argue that such an action does not qualify as the “use” of a weapon causing a reasonable apprehension of serious bodily injury.

Crabb’s counsel contends that it would have been more appropriate to charge Crabb with misdemeanor assault. We recognize that under a different factual situation the mere pointing of a firearm in the direction of another might be more properly charged as a misdemeanor assault. The statutory provision of misdemeanor assault makes this obvious because it provides, in part:

“(1) A person commits the offense of assault if he:
“(d) purposely or knowingly causes reasonable apprehension of bodily injury in another. The purpose to cause reasonable apprehension or the knowledge that reasonable apprehension would be caused shall be presumed in any case in which a person knowingly points a firearm at or in the direction of another, whether or not the offender believes the firearm to be loaded.”

Section 45-5-201 (l)(d), MCA. However, it is too large a leap in logic to say that this is the only provision which speaks to such conduct. The statute does not make it exclusive. More importantly, Section 45-5-201(l)(d), MCA, and Section 45-5-202(2)(b), MCA, address differing conduct and require differing elements of proof. Section 45-5-201(l)(d), MCA, addresses the reasonable apprehension of bodily injury, as opposed to the reasonable apprehension of serious bodily injury which is addressed by Section 45-5-202(2) (b), MCA. The statutory terms of “serious bodily injury” and “bodily injury” carry drastically different definitions. Compare, Section 45-2-101(5) and (59), MCA. Under the facts of this case, there is sufficient evidence to support the proposition that Crabb purposely or knowingly used a weapon to cause a reasonable apprehension of serious bodily injury, and it was therefore appropriate to charge Crabb with felony assault.

Mental state.

Crabb asserts that even assuming he committed the alleged act, he did so without any criminal intent or mental state. Counsel for Crabb is effectively asserting that Crabb cannot be convicted of this charge without a “bad mens rea” or a specific intent to commit the crime. However, Crabb’s counsel is ignoring the fact that these concepts of mental state were replaced long ago. See, State v. Klein (1976), 169 Mont. 350, 356, 547 P.2d 75, 78. The statute under which Crabb was charged and convicted requires a mental state of “purposely” or “knowingly.” See, Sections 45-2-101(58) and (33), MCA. The concepts of specific intent and bad mens rea are irrelevant under this statute and the current Montana criminal code. There is certainly sufficient evidence in the record for the jury to have inferred that Crabb acted purposely or knowingly.

For the foregoing reasons the judgment of the District Court is affirmed.

MR. JUSTICES SHEEHY, WEBER, HUNT and McDONOUGH concur.


text:
    MILTON K. BLAKEY, District Attorney, in and for the Ninth Judicial District, State of Colorado, on behalf of the People of the State of Colorado, Petitioners, v. DISTRICT COURT, SECOND JUDICIAL DISTRICT, COUNTY OF SILVER BOW, State of Montana; Arnold Olsen, judge thereof; and Dale Edward Anderson, Real Party in Interest, Respondents.
    No. 87-194.
    Decided May 27, 1988.
    755 P.2d 1380.

      Milton K. Blakey, Dist. Atty. by Joseph F. Bennett, Deputy, Meeker, Colo., Ross Richardson, Chief County Atty., Butte, for petitioners.
    Gary Winston, Butte, for Anderson.
    Arnold Olsen, District Judge, Butte, pro se.
   OPINION AND ORDER

On January 26, 1987, the Second Judicial District Court, Silver Bow County, issued an order that the State of Colorado had not complied with the Interstate Agreement on Detainers (IAD) so that defendant Anderson’s arrest was null and void and that all future Colorado detainers, based upon the same charges, were declared to be of no effect in the State of Montana. Colorado (petitioner), on May 20, 1987, filed its Petition for Writ of Mandate, directed to the respondent court to vacate said order. The petitioners responded on July 10, 1987, and both parties have filed requests, briefs, motions and responses. We remand to the District Court and order that its order of January 26, 1987 be vacated.

The following facts, gleaned from the record, are not in dispute.

On May 6, 1983, a District Judge of Rio Blanco County, Colorado, issued an arrest warrant, based upon an affidavit of probable cause, for the arrest of Dale Edward Anderson, with bail in the amount of $10,000.

Dale Edward Anderson was sentenced to six years at the Montana State Prison on March 13, 1984. On May 4, 1984, the Warden’s office, Montana State Prison acknowledged receipt of the Colorado arrest warrant as a detainer. On July 22, 1985, the defendant, Dale Edward Anderson, executed a request for disposition of Information or Complaints, and on July 30, 1985, the Warden of the Montana State Prison offered to deliver temporary custody of the defendant to the petitioner herein.

On August 19, 1985, petitioner herein wrote to defendant’s wife, indicating that he did not intend to release the “detainer” filed against the defendant in Montana.

On February 7, 1986, the Warden of the Montana State Prison advised the petitioner herein that petitioner had acknowledged receipt of the defendant’s demand for final disposition under the Interstate Agreement on Detainers, and that because the 180-day period had passed without the petitioner taking temporary custody of the defendant, the Colorado detainer was no longer of force or effect and therefore the petitioner was requested to have the appropriate court enter an order dismissing the action against defendant with prejudice.

On March 10, 1986, the Clerk of the Ninth District Court, Rio Blanco County Colorado, received from the defendant pro se a Motion to dismiss indictment/detainer lodged on or about May 6, 1983. On May 21, 1986, petitioner’s deputy advised the Montana State Prison staff that no information had been filed against the defendant, although there was an active felony warrant filed, and that therefore the Interstate Agreement on Detainers did not apply.

On October 16, 1986, an Information was filed by petitioner’s staff against the defendant based upon the same alleged conduct as described in the affidavit of probable cause in support of the arrest warrant issued May 6, 1983. On December 23, 1986, the defendant was arrested by Montana officers by authority of a warrant issued by the Rio Blanco County, Colorado, District Court.

On January 26, 1987, a hearing was held upon the application of the defendant for Writ of Habeas Corpus before the Honorable Arnold Olson, District Judge of the Second Judicial District of the State of Montana in and for the County of Silver Bow. At the hearing the defendant was present and was represented by his attorney, John G. Winston. The State of Colorado was purportedly represented by Ross Richardson, Chief Deputy County Attorney for Silver Bow County, Montana. After presentation of testimony and oral argument, the presiding Judge entered Findings, Conclusions, and Judgment to the effect that the State of Colorado had not complied with the Interstate Agreement on Detainers so “the Detainer under which the Petitioner was arrested on the 23rd day of December 1986 is null and void.”

Upon these facts, we temporarily deferred ruling on the application for Writ of Mandate until the appropriate court of the State of Colorado acted upon Anderson’s motion to dismiss. Anderson’s motion to dismiss was based on Article 111(a) of the Interstate Agreement on Detainers, Sections 46-31-101 et seq., MCA, C.R.S. Section 24-60-501 et seq., which requires the state issuing a detainer, the receiving or demanding state, to bring the accused to trial within 180 days after the accused requests final disposition of the matter. In this case, Anderson did all that was required of him under the Act.

On December 9, 1987, the Rio Blanco District Court, Honorable Gavin D. Litwiller, denied Anderson’s motion to dismiss on grounds that “[previous to October 16, 1986 no Indictment, Information, or Complaint had been filed . . .” The Colorado court relied on the Colorado Supreme Court case of People v. Gonzales (Colo. 1984), 679 P.2d 1085, which interpreted the Colorado Uniform Disposition on Detainer Act, C.R.S. Sections 16-14-101, et seq., which is the Colorado Intrastate counterpart to the Interstate Agreement on Detainers. In Gonzales, the Colorado Supreme Court ruled that an arrest warrant does not trigger the application of the Intrastate Agreement and the Colorado District Court in this case held that the outstanding arrest warrant did not trigger the application of the Interstate Agreement.

Respondents, through Winston and Colorado counsel inadequately responded to our order of March 23, 1988, in which we requested evidence in writing for reasons why an appeal of the Colorado decision was not commenced by January 15, 1988, as was stated by Winston in a Motion to Retain our Order filed January 6, 1988. Winston’s Motion stated that respondent retained Colorado co-counsel to perfect an appeal to the Colorado Supreme Court. After a number of orders by this Court for further written assurances that an appeal was being perfected, we were advised that under Colorado law only an interlocutory appeal is available on the Colorado District Court’s order and that the time period allowed for this appeal had expired.

Petitioners present the following two issues in their brief in support of the Writ of Mandate:

1. Whether the Montana District Court exceeded its jurisdiction under the extradition clause by blocking extradition based on an alleged violation of the Interstate Agreement on Detainers by the receiving state?
2. Whether the respondent court incorrectly defined a “detainer” to include a mere arrest warrant?

Initially, we note that the general rule is that asylum, sending or custody, state courts have only limited jurisdiction and limited judicial review over a transfer sought by a receiving state pursuant to the IAD. Abad v. Ricketts (Colo. 1982), 645 P.2d 848, 849. Further, this limitation has generally been strictly construed to allow inquiry similar to the inquiry allowed in extradition proceedings. Michigan v. Doran (1978), 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521; Coble v. Magone (Mont. 1987), [229 Mont. 45,] 744 P.2d 1244, 1245, 44 St.Rep, 1766, 1768; Petition of Blackburn (Mont. 1985), [215 Mont. 440,] 701 P.2d 715, 717, 42 St.Rep. 525, 527. Review by the asylum or custody state is allowed but is limited in scope to the issues concerning technical sufficiency of the extradition documents, identification of the accused, whether the accused has been substantially charged with a crime, and whether the accused is a fugitive. Morris v. McGoff (Colo. 1986), 728 P.2d 720, 722; Sweaney v. District Court, Eighteenth Judicial District (Colo. 1986), 713 P.2d 914, 917; Dodson v. Cooper (Colo. 1985), 705 P.2d 500, 503, cert. den. 474 U.S. 1084, 106 S.Ct. 857, 88 L.Ed.2d 896.

We will not intercede and determine Colorado law as we are without jurisdiction to do so. However, we note that one court has expressed the reasoning that the sending state’s judicial review, especially in determining validity under the IAD rather than extradition, may be more than that expressed in Doran. The Iowa Court of Appeals decision in Hickey v. State (Iowa App. 1984), 349 N.W.2d 772, briefly addressed the question whether a “sending state” under the Interstate Act, referred to as the IADC, rather than IAD, had jurisdiction to determine whether the “receiving state” has complied with the IADC.

“The United States Supreme Court held in Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981), that prisoners transferred pursuant to Article IV of the IADC are not required to give up any preexisting rights they had under state or federal law to challenge their transfer to the ‘receiving state.’ Id. at 450, 101 S.Ct. at 712, 66 L.Ed.2d at 655. A prisoner transferred against his will should be entitled to whatever safeguards of the extradition process he might otherwise have enjoyed, including those procedural protections of the Uniform Criminal Extradition Act [Iowa Code chapter 820 (1983)]. Id. at 448, 101 S.Ct. at 711-12, 66 L.Ed.2d at 654. Under the Supreme Court’s interpretation, prisoners are given the right to a judicial hearing in which they can bring a limited challenge to the ‘receiving state’s’ custody request. Id. at 449, 101 S.Ct. at 712, 66 L.Ed.2d at 654-55.”

The Iowa court proceeded to state that historically the prisoner was limited to the Doran factor challenges but in the specific case before it the court said it had to determine whether a pursuit of challenging the receiving state’s compliance with the IADC could be made by the prisoner in the sending state. The Hickey Court stated:

“It has been generally held that under the IADC, courts in the state in which the prisoner is incarcerated lack authority to dismiss out-of-state charges even though a prisoner claims that the ‘receiving state’s’ prosecuting authorities have violated his right to a speedy trial under Article 111(a). State ex rel. Garner v. Gray, 59 Wis.2d 323, 208 N.W.2d 161 (1973); Baker v. Schubin, 72 Misc.2d 413, 339 N.Y.S.2d 360 (N.Y.Sup.Ct.1971); State ex rel. Chamberlain v. Martinco, 288 Minn. 231, 179 N.W.2d 286 (1970); State v. West, 79 N. J. Super. 379, 191 A.2d 758 (Super. Ct. App.Div.1963) . . . Some courts have also indicated that when serving as the asylum state they will not pass on alleged violation of the detainer act or alleged violation of constitutional rights by demanding states, but will leave such determination to the courts of the demanding states. State ex rel. Garner v. Gray, 59 Wis.2d 323, 208 N.W.2d 161; State ex rel. Mitchell v. Allen, 155 W.Va. 530, 185 S.E.2d 355 (1971), cert. denied 406 U.S. 946, 92 S.Ct. 2048, 32 L.Ed.2d 333 (1972); State ex rel. Chamberlain v. Martinco, 288 Minn. 231, 179 N.W.2d 286. These latter cases, however, all involve extradition statutes and not actions initiated under the IADC. See, State ex rel. Bursaw v. Omodt, 338 N.W.2d 585 (Minn.1983) . . .
“Moreover, other courts have held that while a court in the ‘sending state’ may not dismiss the indictment of the ‘receiving state,’ the courts of the ‘sending state’ have the authority to dismiss detainer warrants lodged with prison authorities by sister states where it appears that the underlying accusatory instrument itself is subject to dismissal in the courts of the ‘receiving state’ for failure to comply with the speedy trial provisions of the LADC. [Emphasis added.] Baker v. Schubin, 72 Misc.2d at 419, 339 N.Y.S.2d at 369. See also, Buchanan v. Michigan Department of Corrections, 50 Mich.App. 1, 212 N.W.2d 745 (1973); Rainey v. Michigan Department of Corrections, 41 Mich.App. 313, 199 N.W.2d 829 (1972). We hold that in addition to the traditional limited review of extradition cases preserved by the Supreme Court in Cuyler under the IADC, the court of the ‘sending state’ may also dismiss a detainer lodged against a prisoner incarcerated within its borders where it appears that the underlying indictment is subject to dismissal in the courts of the ‘receiving state’ for failure to comply with the provisions of the IADC. We are careful to note that this holding does not prevent a ‘receiving state’ whose detainer has been dismissed from using the extradition process. [Emphasis added.] See, Baker v. Schubin, 72 Misc.2d at 422, 339 N.Y.S.2d at 369. We, therefore, review plaintiffs claims that the detainer should be quashed because of Florida’s failure to comply with the speedy trial provisions of Article 111(a) of the IADC.”

Hickey, supra, 349 N.W.2d at 776-777.

We note additionally that the Hickey court also cited a case where the Wisconsin Court of Appeals discharged an Illinois detainer lodged against a Wisconsin prisoner. State v. Sykes (Wis.Ct.App. 1979), 91 Wis.2d 436, 283 N.W.2d 446. Hickey’s importance in this case is that the Montana District Court made its determination believing that the underlying accusatory instrument itself was subject to dismissal in the receiving state, Colorado. In light of the denial by the Colorado District Court of Anderson’s motion to dismiss we find this is not the case.

Under the facts of this case, we do not base our entire holding on the argument that the Montana District Court is without jurisdiction to make any determination beyond those expressed in the general rule. Doran, supra; Blackburn, supra. However, reviewing this issue in light of the second issue presented we find that the Montana District Court erred.

The second issue presented by petitioner is determined by the Ninth Circuit Court of Appeals decision of United States v. Bottoms (1985), 755 F.2d 1349. In Bottoms, the court determined that an arrest warrant for escape of the defendant in the receiving state was not sufficient to fall under the definition of an “indictment,” “information,” or “complaint” thereby triggering the IAD in the custody state. This ruling was based upon the language of 18 U.S.C. App. Section 2, Art. I of the Interstate Agreement on Detainers Act which is the precise language of the Montana Interstate Agreement on Detainers. Sections 46-31-101, et seq., MCA.

We note also that a number of courts have determined that an outstanding charge based on probation or parole violation is not sufficient to be determined an “untried indictment, information or complaint.” Carchman v. Nash (1985), 473 U.S. 716, 105 S.Ct. 3401, 87 L.Ed.2d 516; United States v. Roach (9th Cir. 1984), 745 F.2d 1252, cert. den. 474 U.S. 835, 106 S.Ct. 107, 88 L.Ed.2d 87; Hopper v. United States Parole Commission (9th Cir. 1983), 702 F.2d 842. Similarly, in this instance, an arrest warrant, unless it is based upon an untried indictment, information or complaint, should not be considered sufficient to trigger the Interstate Agreement on Detainers.

We remand to the District Court and order that its order of January 26, 1987 be vacated.

DATED this 27th day of May, 1988.

s/J.A. Turnage, Chief Justice

s/John Conway Harrison, Justice

s/Fred J. Weber, Justice

s/John C. Sheehy, Justice

s/L.C. Gulbrandson, Justice

s/William E. Hunt, Sr., Justice

s/R.C. McDonough, Justice


author: MR. JUSTICE GULBRANDSON

text:
    PATRICIA L. COOPER, Plaintiff and Appellant, v. KARL F. ROSSTON, Defendant and Respondent.
    No. 87-293.
    Submitted April 5, 1988.
    Decided May 31, 1988.
    756 P.2d 1125.

      Lynaugh, Fitzgerald & Hingle, Michael G. Eiselein, Billings, for plaintiff and appellant.
    Poore, Roth & Robinson, C. Richard Anderson, Butte, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Patricia L. Cooper (Cooper) appeals a Second Judicial District Court, Silver Bow County, jury verdict award of damages for injuries she sustained in a pedestrian/automobile accident in Butte, Montana. We reverse and remand for a new trial.

This case involves an accident that occurred on Saturday, November 19, 1983, in the parking lot of the War Bonnett Inn, a motel in Butte, Montana. At approximately 11:00 p.m. that evening, a 1974 one-ton Chevrolet four-door pickup truck ran over Cooper. The driver of the pickup truck was Karl F. Rosston (Rosston) who was sixteen years old at the time.

Earlier that evening, Rosston picked-up six juvenile acquaintances to attend a game at a state girls basketball tournament in Butte. Prior to attending the game, the seven boys purchased three six packs of beer at a local grocery store. The boys drank some of the beer with food at around 7:00 p.m. and then went to a basketball game at the Butte Civic Center. They left the Civic Center at around 10:00 p.m. and drove around for about an hour.

At approximately 11:00 p.m., Rosston drove his father’s pickup truck onto the entry ramp of the War Bonnett Inn. Twenty-seven year old Patricia Cooper and some of her girl friends were leaving the War Bonnett Inn at the time Rosston and the other boys arrived. Cooper and her friends were also in Butte to attend the basketball games. Prior to leaving the War Bonnett Inn, Cooper and her friends had been drinking alcoholic beverages in the motel lounge.

As the women exited the motel, Rosston’s passengers exited the pickup truck and began to tease Cooper and her friends. Rosston did not participate in the teasing but stood next to his pickup truck and watched for the three or four minutes of the conversation. One of Rosston’s passengers, Chris Albrecht, attempted to take a beer cooler from the back of Cooper’s pickup truck. One of the women demanded that Albrecht return the cooler and he complied with the demand. The boys then left the immediate vicinity in Rosston’s pickup truck.

Instead of exiting the parking lot, Rosston circled around and parked within thirty or forty feet of the women. Some of the boys testified at trial that they went back specifically to attempt to take the beer cooler. Rosston’s passengers once again exited his vehicle and one of the boys took Cooper’s beer cooler. Rosston remained standing at the door of his vehicle until the boys started running back to the truck with the beer cooler. Rosston got into his vehicle and began to drive away with the back doors open as his acquaintances jumped in with the cooler. Meanwhile, Cooper and her friends chased down Rosston’s vehicle and one woman, Kellie Reed, grabbed on to the driver’s side mirror. Rosston felt a bump and thought that he had run over a speed bump. Kellie Reed then yelled that Rosston had run over Cooper. Cooper had attempted to jump on to Rosston’s moving vehicle and had fallen underneath the rear tires. Rosston stopped his vehicle, got out, and ran back to find Cooper on the ground with extensive injuries.

The authorities were called and Cooper was taken to the hospital. By the time the police arrived, Rosston’s passengers had all left the scene. When questioned by the police as to what happened, Cooper’s friends failed to identify Rosston as the driver of the pickup truck. In a verbal statement at the scene, and an hour later in a written statement, Rosston told the police that one of the other boys drove the pickup truck at the time Cooper was injured. Rosston also failed to immediately identify two of the boys involved in the incident and did not inform the authorities that he had consumed some alcohol earlier in the evening. Later that evening, Rosston’s acquaintances contacted the police about their involvement in the accident. Approximately ninety minutes after his first statement, Rosston changed his story and informed the police that he was the driver of the vehicle that ran over Cooper. Rosston has not since denied his involvement.

On January 9, 1984, Cooper filed a complaint and demand for jury trial with allegations of negligent, willful and reckless conduct. Cooper asked for general and punitive damages. Prior to trial, Ross-ton sought by a motion in limine to exclude any evidence pertaining to Rosston’s original story that someone else drove the pickup truck, his failure to identify all of the boys involved at the time of the accident, and his failure to inform authorities that he had consumed alcoholic beverages that evening. The District Court granted the motion and excluded the evidence. During trial the District Court also struck Cooper’s claim for punitive damages on the grounds that there was no evidence of willful or reckless misconduct.

The jury found both Rosston and Cooper fifty percent negligent and found Cooper’s total damages to be $30,000. Cooper’s total recovery after the reduction for her percentage of the negligence was $15,000 plus $775.95 in costs. Notably, Cooper’s actual medical expenses and lost wages totaled just under $15,000. Plaintiff Cooper appeals from the judgment and we identify the following four issues:

1. Did the District Court err in prohibiting the introduction of evidence regarding Rosston’s misrepresentations and omissions made to law enforcement officials immediately after the accident?

2. Did the District Court err in instructing the jury that a juvenile is held to a lesser standard of care than an adult under the circumstances of this case?

3. Did the District Court err in refusing to instruct the jury as to the elements of theft, reckless driving, and willful and wanton misconduct?

4. Did the District Court err in striking Cooper’s claim for punitive damages?

In her first issue, Cooper claims that the District Court should have allowed the introduction of evidence regarding Rosston’s misdeeds immediately after the accident. We begin our analysis of evidentiary rulings with the recognition that issues concerning the admissibility of evidence are within the discretion of the district court. Moen v. Peter Kiewit & Sons’ Co. (1982), 201 Mont. 425, 439, 655 P.2d 482, 489. A district court’s ruling on the admissibility of certain evidence will not be disturbed absent a showing of an abuse of that discretion. Britton v. Farmers Ins. Group (Mont. 1986), [221 Mont. 67,] 721 P.2d 303, 315, 43 St.Rep. 641, 654. In its order of June 15, 1987, the District Court granted Rosston’s motion in limine to exclude evidence of the following:

“1. Statements made by Karl Rosston immediately following the accident, wherein he denied being the driver of the vehicle involved in this accident;
“2. Inconsistencies in the statements given by Karl Rosston following this accident to investigating officers, wherein he did not identify certain boys who where at or near the scene of the accident;
“3. Any and all other inconsistencies in the statements provided by Karl Rosston subsequent to this accident, including but not limited to, whether he had consumed alcoholic beverages; . .

The above misrepresentations and omissions, Cooper contends, were relevant to impeach Rosston’s credibility at trial and were relevant on the issue of punitive damages. Rosston counters by arguing that this evidence constitutes impeachment on collateral matters and that the prejudicial effect of the evidence outweighs any probative value.

At trial, Rosston identified the other juveniles in his pickup truck, admitted that he was the driver of the vehicle that ran over Cooper, and admitted that he had been drinking prior to the accident. Ross-ton contends that, because these facts were not at issue in the trial, the excluded evidence constitutes impeachment on collateral matters. We agree that the evidence in question was collateral to all issues in this case except two — the issue of Rosston’s credibility as a witness and the issue of punitive damages as will be discussed later in this opinion.

Section 26-1-302, MCA, provides as follows:

“A witness is presumed to speak the truth. The jury or the court in absence of the jury is the exclusive judge of his credibility. This presumption may be controverted and overcome by any matter that has a tendency to disprove the truthfulness of a witness’ testimony; such matters include but are not limited to:
“(7) inconsistent statements of the witness;
“(8) an admission of untruthfulness by the witness;
“(9) Other evidence contradicting the witness’ testimony.”

Rule 401 of the Montana Rules of Evidence provides that “[r]elevant evidence may include evidence bearing upon the credibility of a witness or hearsay declarant.” Credibility evidence, though relevant, “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . .” Rule 403 M.R.Evid. Evidence of Rosston’s misrepresentations and omissions is relevant to the issue of his credibility as a witness and we are not convinced that the admission of this evidence prejudices Rosston to the point of outweighing its probative value. The jury is the exclusive judge of Rosston’s credibility and the District Court erred in excluding evidence bearing on that credibility. Section 26-1-302, MCA.

We also note that the “collateral matters” rule, as argued by Ross-ton, was abolished in favor of the above relevancy approach upon the adoption of Rule 607, M.R.Evid., in 1977. The Commission Comments on Rule 607 contain the following language pertinent to this issue:

“[T]he Commission intends the broad language of Rule 607, allowing the reliability of a witness to be attacked, to mean that impeachment is only limited by the ingenuity of counsel to show any reason to disbelieve a witness’ testimony and by consideration of relevancy under Rules 401 and 403.
“The limitation of impeachment by considerations of relevancy is a change in Montana law to the extent that it abolishes the collateral matters rule.
“The many cases considering collateral matters indicate that it is a troublesome doctrine. The Commission believes that the limitation of impeachment by Rule 401, defining relevant evidence as including impeaching evidence, and Rule 403, allowing the court to exclude relevant evidence if its probative value is outweighed by prejudice, confusion, waste of time, will allow the same result to be reached through a more flexible means than currently used with the collateral matters rule. Therefore, Section 93-401-25, R.C.M. 1947 [superseded], (to the extent that it is concerned with collateral matters) and case law stating the collateral matters rule are abolished in favor of the relevancy approach.”

Commission Comments, Rule 607, M.R.Evid. We recognize the existence of post-1977 cases which refer to the collateral matters rule. See e.g., Moen, 655 P.2d at 488; State v. Harvey (1979), 184 Mont. 423, 432, 603 P.2d 661, 666. However, this Court favors the relevancy analysis under Rules 401 and 403, M.R.Evid.

The evidence proffered by Cooper is also relevant on the issue of punitive damages in this case. It was not until several hours after the accident that Rosston admitted that he was the driver of the vehicle that ran over Cooper, that he had been drinking that evening, and that he knew the identities of the other juvenile boys. Cooper contends that Rosston’s misrepresentations and omissions as to his actions that night deprived the investigating officers of reason to test Rosston’s blood alcohol content. This deliberate attempt to mislead law enforcement officials, Cooper argues, is evidence of Rosston’s willful and wanton conduct. We agree.

In Lauman v. Lee (Mont. 1981), [- Mont.-,] 626 P.2d 830, 38 St.Rep. 499, this Court determined that evidence of a deliberate destruction of physical evidence can provide the basis for actual or punitive damages. The defendant in Lauman, Larry Lee, wiped mud from the headlights of an automobile involved in an accident. The investigating officer testified at trial that the physical evidence concerning the illuminating characteristics of the headlights at the time of the accident was crucial to the determination of fault. Lauman, 626 P.2d at 833. The lack of evidence concerning the headlights decreased the settlement potential of Lauman’s case or the probability of a plaintiff’s verdict. Lauman, 626 P.2d at 833. The jury awarded Lauman $17,500 in punitive damages and Lee appealed.

On appeal, Lee argued that the award of punitive damages was excessive. According to Lee, his conduct in wiping the headlights was innocuous and an award of punitive damages was, therefore, the result of the inflamed passion and prejudice of the jury. Lauman, 626 P.2d at 834. This Court declined to disturb the jury’s award of punitive damages and stated the following:

“We have recently discussed the jury’s prerogative in setting exemplary damages . . . The jury may consider such attendant circumstances as the malice or wantonness of the act, the injury intended, the motive for the act, the manner of the commission and the deterrent effect on others, as well as the defendant’s wealth . . . The jury had discretion reasonably to calculate a suitable punishment for Lee’s actions after listening to the testimony and weighing the evidence.” [Citations omitted.]

Lauman, 626 P.2d at 834.

Sections 27-1-220 and 27-1-221, MCA, authorize an award of punitive damages “where the defendant has been guilty of either actual or implied malice.” Lauman, 626 P.2d at 832. “Liability for punitive damages must be determined by the trier of fact, whether judge or jury.” Section 27-1-221(6), MCA. Rosston admits that he lied to law enforcement authorities concerning his involvement in the accident. In her offer of proof, Cooper contends that the investigating officers would have administered a blood alcohol test if they had known that Rosston was the driver of the vehicle that injured Cooper. As in Lauman, we are unable to determine the precise extent of Cooper’s damages that might be attributable to Rosston’s obstruction of the accident investigation. Whether Rosston’s misrepresentations and omissions give rise to an award of punitive damages in this case was a question of fact for the jury to determine. Section 26-1-202, MCA. The excluded evidence was, therefore, relevant to the issue of punitive damages. Rule 401, M.R.Evid. Accordingly, we hold that the District Court erred in excluding evidence of Cooper, Rosston’s misrepresentations and omissions to law enforcement officials.

In her second issue, Cooper contends that the District Court erred in giving the following instruction:

“A child is not held to the same standard of care as an adult. A child is negligent if he fails to use that degree of care which is ordinarily exercised by children of the same age, intelligence, knowledge and experience under the circumstances then existing.”

A sixteen year old (Rosston) with a valid Montana driver’s license is held to the same standard of care while driving an automobile as an adult in the same circumstances. Wollaston v. Burlington Northern, Inc. (1980), 188 Mont. 192, 612 P.2d 1277. The issues in this case centered around Rosston’s actions in driving a vehicle. The instruction in question impermissibly allowed the jury to hold Rosston to a lesser standard of care than an adult while driving a vehicle. We hold that the District Court erred in giving the above instruction in this case.

Cooper argues in her third issue that the District Court erred in refusing to submit Cooper’s proposed instructions with regard to the elements of theft, reckless driving, malice, and willful misconduct. She contends that the evidence and testimony create a question of fact as to whether Rosston had committed acts amounting to malice or willful and wanton conduct. We agree.

“[W]here a statute specifically proscribes conduct which is actually malicious such as theft. . . punitive damages may be sought for violation of such a statute.” Owens v. Parker Drilling Co. (1984), 207 Mont. 446, 449, 676 P.2d 162, 163-164. This Court adopted the following standard in Owens regarding presumed malice:

“When a person knows or has reason to know facts which create a high degree of risk of harm to the substantial interests of another, and either deliberately proceeds to act in conscious disregard of or indifference to that risk, or recklessly proceeds in unreasonable disregard of or indifference to that risk, his conduct meets the standard of willful, wanton, and/or reckless to which the law of this State will allow imposition of punitive damages on the basis of presumed malice.”

Owens, 676 P.2d at 164. The Court went on to conclude that, “[w]here a statute is designed to protect the substantial interests of a person from a high degree of risk, and the statute is violated either intentionally or recklessly, a jury question of punitive damages is raised.” Owens, 676 P.2d at 165.

The evidence in this case gave rise to questions of fact regarding Rosston’s participation in the theft of the beer cooler, his operation of a motor vehicle in a reckless manner, and his misrepresentations and omissions to law enforcement officials as previously discussed. The District Court determined that the evidence did not support instructions on theft, reckless driving, malice, and willful and wanton misconduct. We have reviewed the same evidence and conclude that reasonable minds could differ as to whether Rosston’s actions constituted malicious, willful, wanton, or reckless conduct for which punitive damages may be awarded. Mallory v. Cloud (1975), 167 Mont. 115, 118, 535 P.2d 1270, 1272. The testimony presented the District Court with a triable issue of fact regarding these matters relating to Cooper’s case and failure to instruct the jury on these elements constitutes reversible error. Tacke v. Vermeer Mfg. Co. (Mont. 1986), [220 Mont. 1,] 713 P.2d 527, 534, 43 St.Rep. 123, 131.

We note that Cooper argues that her recovery would not have been reduced had Rosston been found guilty of willful and wanton misconduct. Cooper cites to Derenberger v. Lutey (1983), 207 Mont. 1, 674 P.2d 485, to argue that simple negligence cannot be compared with willful misconduct. However, this Court recently overruled Derenberger in Martel v. Montana Power Co. (Mont. 1988), [231 Mont. 96,] 752 P.2d 140, 45 St.Rep. 460. Negligence in all forms can now be compared under Montana’s comparative negligence statute, Section 27-1-702, MCA. Martel, 752 P.2d at 143, (citing Bielski v. Schulze (Wis. 1962), 114 N.W.2d 111-114).

In light of the foregoing discussion, we must also conclude that the District Court erred in striking Cooper’s claim for punitive damages during trial. First Nat. Bank of Libby v. Twombly (Mont. 1984), [213 Mont. 66,] 689 P.2d 1226, 1229, 41 St.Rep. 1948, 1953. The evidence in this case presented the jury with numerous questions of malicious, willful, wanton or reckless conduct which may have warranted an award of punitive damages. As the trier of fact, the jury was entitled to hear argument and jury instructions with respect to punitive damages.

Reversed and remanded for a new trial.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY, HUNT and McDONOUGH and MR. CHIEF JUSTICE FRANK I. HASWELL, retired, sitting for MR. JUSTICE WEBER, concur.


author: MR. JUSTICE WEBER

text:
    FRED WALTERS and Judy Walters, Plaintiffs and Appellants, v. WILLIAM R. GETTER and Katherine M. Getter, Defendants and Respondents.
    No. 87-487.
    Submitted on Briefs April 7, 1988.
    Decided June 2, 1988.
    755 P.2d 574.

      Lawrence A. Anderson, Great Falls, Robert J. Yunck, Cut Bank, for plaintiffs and appellants.
    Doris M. Poppler, John R. Davidson, Billings, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This action arose from a real estate transaction. Plaintiffs Walters sought rescission of the contract or in the alternative damages for breach by defendants Getter, the sellers. The Getters counterclaimed for payment of the balance due under the contract. Both parties moved for summary judgment, which motions were denied. The trial court allowed the matter to go before the jury on the issue of whether the Getters performed under the contract within a reasonable time. The jury returned a verdict for defendants. The Walters then moved for judgment notwithstanding the verdict or for a new trial. The court denied both motions, and the Walters appeal. We affirm. Two questions are presented for review:

1. Did the District Court err when it denied plaintiffs’ motion for summary judgment?

2. Were plaintiffs entitled to a new trial?

William Getter owned a number of lots near Cut Bank, Montana. These lots lay to the east of town along Highway 2. Further to the east, Phillips Petroleum Company (Phillips) had built a shop. Phillips wanted water and sewer lines constructed along the highway and connected to the city’s existing lines. Phillips contacted Mr. Getter and two other individuals who owned property between the city and the Phillips property to see if they would share the cost of extending the services to that area. Mr. Getter and one of the other property owners eventually agreed to cover a proportionate share of the cost. Mr. Getter’s share was anticipated to be approximately 35% of the total estimated cost of $46,816. The completion date was expected to be December 15, 1981.

Fred Walters agreed to buy three of Mr. Getter’s lots along Highway 2 so he could relocate his business there. Mr. Walters owned a service company which cements oil wells for oil producers in the area. His contract work for Phillips constituted about 40% of his income at the time. He was aware of the cost-share agreement between Mr. Getter and Phillips, and he wanted to avoid any possibility of problems arising between himself and Phillips. To protect himself from such contingency, he had the following clause included in the agreement to buy and sell which both he and Mr. Getter signed:

“The purchase price includes a water, sewer and gas line to the three lots with any fees or charges due to Phillips Petroleum Company paid in full by the Seller. It is understood that the lines are in the process of being run through the lots at this time and the Sellers agree to see that the construction of the lines does get completed and is paid for so that the Purchasers have those lines fully paid for and intact at the time of closing. Future maintenance and utility charges are the responsibility of the Purchasers.”

Mr. Walters also agreed to pay $5,000 down and $85,000 upon closing. On the day scheduled for closing, January 15, 1982, the lines were not completed, and Mr. Getter had not paid Phillips. Mr. Getter demanded payment of the $85,000 from Mr. Walters who refused because Mr. Getter had not paid Phillips. The parties agreed that Mr. Getter would receive $65,000 and that Mr. Walters would retain $20,000 until the lines were completed. Both parties believed the construction would be completed within a short time.

In fact, the project was not completed until the spring of 1982, and Mr. Getter was not assessed for his share of the cost until October 1982. Phillips assessed him for $61,528, well over the earlier estimate. Mr. Getter contested the assessment and, when negotiations broke down, eventually filed a suit against Phillips. Mr. Walters contacted Mr. Getter several times during 1982 and 1983 regarding Mr. Getter’s refusal to pay the Phillips assessment.

Later in 1983 or early 1984, Mr. Walters again questioned Mr. Getter concerning payment of the assessment and was advised to go ahead and hook up to the water and sewer lines. However, Phillips would not allow him to hook up until the assessment was paid. About this time, Mr. Getter tendered the deed to Mr. Walters, but because the lines still were not paid for, Mr. Walters would not accept the deed.

On February 7,1984, the Walters’ attorney sent a letter to the Getters informing them that unless they were ready, willing and able to perform all conditions of the contract and close the sale within 7 days of receipt of the letter, the Walters would consider them in default. Several letters were exchanged, but the Getters did not perform within the 7 days. The Walters declared the sellers to be in default on March 1. They rescinded the contract and demanded repayment of $70,000 plus interest. The Getters denied default and refused to return the money. They were in the midst of settlement negotiations with Phillips, and on March 22,1984, Mr. Getter signed a settlement agreement with Phillips and paid for the lines. Thus, the Getters paid for the lines 42 days after receipt of the Walters’ February 7 demand.

I

Did the District Court err when it denied plaintiffs’ motion for summary judgment?

The lower court, in its order denying summary judgment to both parties, made the following conclusion:

“Plaintiffs have never waived the contractual requirement that the utility lines be installed and paid for before they were obligated to pay full consideration and accept a deed to the premise. The parties', by their conduct, mutually agreed to extend the date of performance of a condition precedent by Getters (install the utilities and pay for the same). No certain date of performance was set, but the evidence clearly shows that at the time of the extension, the expectation of closing the deal was in the very near future.
“Roughly two (2) years expired before Plaintiffs’ attorney wrote a letter to Defendants demanding performance of the contract within seven (7) days after Defendants received the letter (February 16, 1984). Section 28-3-601, M.C.A. provides, “If no time is specified for the performance of an act required to be performed, a reasonable time is allowed . . .” Section 28-3-206, M.C.A. provides that uncertainty in a contract should be interpreted most strongly against the party who caused the uncertainty to exist. Time of performance was uncertain due to litigation between Defendants and Phillips. Where no time of performance of a contract is fixed, the law implies a reasonable time for performance or performance on demand. Johnson v. Elliot, 123 Mont. 597 [, 218 P.2d 703].”

The court went on to conclude that what constituted a reasonable time to perform was a question of fact.

The Walters’ argument is that they were entitled to set the 7 day deadline for the Getters’ performance, and, when the Getters failed to perform within that time, they had the right to rescind the contract. In other words, they contend that 7 days notice, as a matter of law, was reasonable in this case.

The parties originally intended to close the sale on January 15, 1982. When that day passed and the contract was not fully performed, the parties, as concluded by the District Court, agreed to extend the date of performance. The parties did not specify a date upon which the Getters must perform, and the Walters did not demand performance at any time prior to February 7, 1984.

As the District Court noted, “If no time is specified for the performance of an act required to be performed, a reasonable time is allowed.” Section 28-3-601, MCA. Plaintiffs argue that 7 days was reasonable as a matter of law. In Henderson v. Daniels (1922), 62 Mont. 363, 373-74, 205 P. 964, 967, this Court discussed what constituted reasonable time:

“ ‘Reasonable time’ is defined to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case.”

The Court then added,

“When the facts are clearly established or are admitted or undisputed, the question of what is a reasonable time is one of law.” Henderson, 205 P. at 967. In Dunjo Land Co. v. Hested Stores Co. of Wyoming (1973), 163 Mont. 87, 90, 515 P.2d 961, 962-63, the Court clarified the law in this area:

“The question of whether a given length of time is reasonable can be either a question of fact or a question of law. When the surrounding circumstances are clearly established or undisputed the question is solely one of law for resolution by the court. Henderson, supra. On the other hand, when the surrounding circumstances are in dispute the question is at least partially one of fact and requires resolution by the trier of fact.”

The District Court here concluded that “[w]hat is a reasonable time to perform is a question of fact.” If this were a material fact and genuine issue between the parties, then summary judgment would not have been appropriate under Rule 56(c), M.R.Civ.P. The record at trial demonstrates that there were a number of facts and circumstances which were not clearly established at the time of the summary judgment ruling.

At the time of summary judgment, the affidavits and other information available to the court did not establish whether it would have been reasonable for the Getters to pay for the pipeline improvements within the 7 day period demanded by the Walters or whether it was reasonable for the Getters to have taken 42 days in which to make such payment. In addition, there were factual issues as to whether the conduct of the Getters was reasonable during the 2 year period after the entry of the contract. That determination of course required proof as to the nature and extent of their actions during that period. The record at the time of summary judgment did not demonstrate whether it was reasonable for the Getters to proceed as they did without proposing any other resolution to the Walters’ concerns. The record did not indicate whether the Getters had acted reasonably in seeking to settle the dispute. We conclude that the facts surrounding the transaction with regard to the question of reasonableness had not been clearly established at the time of summary judgment. As a result, there were factual questions for the trier of fact to determine. Dunjo Land Co., 515 P.2d at 963.

Plaintiffs contended that the demand was reasonable as a matter of law because Johnson v. Elliot (1950), 123 Mont. 597, 218 P.2d 703, allows for performance within a reasonable time or performance on demand. However, when demand is made, the other party still must be given reasonable time after demand in which to perform. We hold that the trial court properly denied summary judgment.

II

Were plaintiffs entitled to a new trial?

The Walters filed a motion in limine to exclude evidence of the dispute between the Getters and Phillips. The trial court denied the motion and allowed evidence and testimony concerning the dispute. After trial, the Walters moved for a new trial, and the court denied that motion.

The Walters contend that the evidence was irrelevant because “unexpected hardships do not excuse a party’s performance.” However, the Getters did not claim that their dispute with Phillips excused their performance. The question at trial was whether the Getters performed within a reasonable time. As indicated in our discussion of Issue I, a determination of whether the Getters performed within a reasonable time requires a consideration of the facts underlying the dispute. We conclude that the evidence regarding the dispute was relevant to the question of reasonableness.

Further, the trial court gave the jury instruction No. 18 which read as follows:

“If no time is specified for the performance of an act required to be performed, a reasonable time is allowed. If the act is in its nature capable of being done instantly (for example, if it consists of the payment of money only), it must be performed immediately upon the thing to be done being exactly ascertained.”

This is an exact quote from Section 28-3-601, MCA. The court then gave instruction No. 19:

“The word ‘ascertain’ means to make sure or certain; to establish; to determine and to settle. In a legal sense it means ‘to find out or to learn for certain; to make sure by investigation.’ It requires a determination of the actual amount of an indebtedness.”

We conclude that the facts surrounding the transaction were relevant to a determination by the jury of the issue of reasonable time of performance.

The Walters also argue that the evidence was insufficient to justify the verdict. If there is substantial evidence to justify the verdict, we will not disturb the jury’s determination. Kukuchka v. Ziemet (Mont. 1985), [219 Mont. 155,] 710 P.2d 1361, 1363, 42 St.Rep. 1916, 1917-18. The evidence will be viewed in the light most favorable to the party prevailing at trial. Kukuchka, 710 P.2d at 1363.

Although the Getters received an assessment for their share of the costs for the pipe lines, they quickly disputed the assessment. It appears from the record that they were seriously negotiating a settlement with Phillips when the Walters made their demand for performance. Within 30 days they accepted an offer of settlement from Phillips. Within 42 days they paid for the lines. Under the circumstances we cannot say that this was an unreasonable time for performance. Error exists only when probative facts are completely absent from the record. Kukuchka, 710 P.2d 1363.

We conclude that sufficient evidence exists in the record to support the verdict. We hold that the District Court did not err by denying plaintiffs a new trial.

Finally, the Walters argue that the trial court should have granted a judgment notwithstanding the verdict. A judgment notwithstanding the verdict will be granted only when the evidence presents no room whatever for honest difference of opinion over the factual issue in controversy. Jacques v. Montana National Guard (1982), 199 Mont. 493, 505, 649 P.2d 1319, 1325. We hold that this test is not met in the present case.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES SHEEHY, HUNT and McDONOUGH concur.


author: MR. JUSTICE SHEEHY

text:
    In re the CUSTODY OF C.S.F., a minor child.
    No. 87-534.
    Submitted on Briefs April 7, 1988.
    Decided June 2, 1988.
    755 P.2d 578.
    Joseph M. Goldman, Missoula, for appellant.
    Datsopoulos, MacDonald & Lind, Dennis E. Lind, Missoula, for respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

The custody of CSF, a minor child, has been the subject of proceedings in the District Court, Fourth Judicial District, Missoula County, since 1982. The father resides in California and the mother in Montana.

The first order of the District Court pertaining to custody was a temporary one, entered January 14, 1983. Joint custody was awarded with the provision that the child should reside with the mother, subject to a visitation schedule for the father, set out in the temporary order. On August 20,1984, the father and mother entered into a joint custody agreement which was filed in the District Court proceedings. On July 3, 1986, the District Court entered an order stating that “the joint custody agreement of the parties shall be the order of the court on all issues addressed therein, including, but not limited to custody, child support . . .”

In 1987, both father and mother filed motions before the District Court seeking modification of one sort or another relating to the joint custody agreement and the July 3, 1986 order of the District Court. On June 1, 1987, the District Court entered orders denying the father’s motion for a full summer visitation; denying the father’s motion to eliminate child support during summer months; ordering that May 1, 1987 remain part of the agreement for a notification date; denying the mother’s motion to increase child support; and ordering that child support be paid through the clerk of the court as per the agreement.

The mother filed a motion for reconsideration by the District Court of the June 1, 1987 order. The District Court on June 30, 1987 denied the mother’s motion for reconsideration, but in passing, made the following statement:

“It was not the intention of the June 1, 1987, order to allow [father] to accumulate all unused visitation. It was the agreement of the parties that visitation would accumulate only if there was a ‘refusal of Mother or because of scheduling conflicts’ and not as a device to acquire visitation not originally scheduled.
“If [mother] refuses to accumulate the visitation days requested by [father] his remedy is to petition the court for an appropriate order

On July 13, 1987, following the apparent suggestion by the District Court in its order denying reconsideration, the father moved the court to determine the number of days of visitation he was entitled to as an accumulation for days denied to him through the mother or by scheduling conflicts.

Hearing before the District Court on the father’s motion for accumulated visitation was held on July 28, 1987. After the District Court heard testimony on the motion, the following colloquy occurred between the court and counsel:

“THE COURT: Of this year. Let me look — you know what I am going to look at, don’t you? The agreement. We’ll see what it says.
“Father shall have visitation only in the even-numbered years for Labor Day and July 4th. This is an odd-numbered year, so the mother has July 4th.
“I am ready to rule in this case and the evidence I have heard indicates to me that you have the right to accumulate six days. When would you like to do that? Would it be convenient to take it now or be better to do it sometime before school starts?
“THE COURT: So it would be 5, 6, 7, 8, 9, 10 and then, that would be the end of his visitation and the child would be returned the evening of the 10th. Is that agreed, [father’s counsel]?
“[FATHER’S COUNSEL]: That’s all right.
“THE COURT: All right. Would you prepare a written order to this effect, [mother’s counsel]?
“[MOTHER’S COUNSEL]: I will, Your Honor.
“THE COURT: Court’s adjourned.”

On September 3, 1987, the District Court signed an order which had been prepared by the mother’s counsel. Paragraph 1 of the order followed the request of the District Court as to the number of accumulated days of visitation to which the father was entitled. The order included a second paragraph, which, however, in words and figures follows:

“2. In order to prevent an annual dispute and hearing with respect to accumulated visitation under the terms of the Joint Custody Agreement dated the 20th day of August, 1984, and in clarifying the intent of said Agreement, the parties are ordered as follows:
“a. Father shall provide to the Court and to the mother a work schedule and his choice of an every other weekend visitation schedule in order to accommodate his work schedule so as not to conflict with his alternating weekend visitation schedule. The schedule shall commence, in accordance with the Joint Custody Agreement, after Labor Day Weekend of each year and shall conclude on or before Memorial Day Weekend of the following year. Said schedule shall be provided to the Court and to Mother on or before September 10, 1987 and on or before August 15th of each year thereafter.
“b. Because of the geographical distance and necessity for travel arrangements, Father shall provide written notice to the mother ten days prior to exercising visitation of the schedule of travel times and related arrangements for the minor child. Father shall provide written notice to the mother ten days prior to any weekend the father anticipates or recognizes a scheduling conflict, informing the mother of the conflict and providing written documentation specifying the reasons and appropriate details of the conflict. If no written notice regarding visitation is received, it shall be assumed the father does not have a scheduling conflict but chooses not to exercise visitation.
“c. Pursuant to the terms of the August 20, 1984 Joint Custody Agreement, scheduling conflicts created by the necessity of father having to work on a regularly scheduled visitation weekend shall as a first option be rescheduled to the father’s next available weekend. If an available weekend does not exist, the scheduling conflict shall be rescheduled or accumulated in accordance with the terms of the Agreement.
“d. Mother shall provide written notice to the father ten days prior to any weekend that mother anticipates or recognizes a scheduling conflict, informing the father of the conflict and specifying the reasons and appropriate details of the conflict.
“The Court once again re-emphasizes to the parties that the specific Agreement and Custodial Visitation Schedule as set forth in the Joint Custody Agreement of August 20, 1984, shall be strictly adhered to and the Court shall enforce said Agreement consistent with the Memorandum and Order of the Court dated June 30, 1987, incorporated herein by reference, which Order and Memorandum sets forth the Court’s interpretation of said Agreement.”

Thereafter, counsel for the father moved the District Court for reconsideration and amendment of the order or for a new hearing on the grounds that the order was inconsistent with the findings of the court, inconsistent with the joint custody agreement of the parties, outside of the issues before the court with respect to the father’s motion for accumulated leave, and entered without giving father an opportunity to present witnesses and cross examination with respect to the new matters covered in the order. The motion for reconsideration of amendment and new hearing was denied and the father appeals to this Court.

The single issue presented on appeal is whether that portion of the order of September 3, 1987, designated as paragraph 2, supra, is valid.

The father contends on appeal that the District Court exceeded its jurisdiction in paragraph 2 of the September 3, 1987 order by addressing issues which were res judicata, which exceeded the intent of the District Court in its direction to the mother’s counsel, and which constituted an abuse of discretion because not supported by findings of fact.

In response, mother’s counsel counters that the testimony showed hostility between the father and mother with respect to visitation, scheduling difficulties that gave rise to increasing hostility, and the need for clarification in the agreement to eliminate conflicts. In addition, the counsel for mother contends in brief that the District Court itself provided counsel further instructions after the hearing had been concluded. The brief states:

“Although the hearing was concluded, the court provided further instructions to counsel to include specific notices and disclosure in the order. The court included these provisions in an effort to preclude and prevent unnecessary and repeated court hearings and confrontations between the parents with respect to the court’s interpretation of the accumulated visitation provision of the custodial visitation agreement. The court additionally requested specific reference to its memorandum and order of June 30, 1987 . . .”

The order of September 3, 1987, is a substantial departure in its provisions from the order requested by the District Court at the conclusion of its hearing, which was simply to provide specific dates for accumulated visitation to the father. If we assume from the statements in the mother’s brief that the further provisions in the September 3, 1987 order were added under the specific instructions of the District Court, outside the presence of father’s counsel, the problem is not cured. Whether the resultant order is because of the voluntary addition by mother’s counsel, or by the express ex parte direction of the District Court, it is a standard rule that a court is bound in entering a judgment or final order to the issues presented to it. In National Surety Corporation v. Kruse (1948), 121 Mont. 202, 205, 192 P.2d 317, 319, we said:

“The rule in Montana as well as in other jurisdictions, seems to be well settled that a judgment must be based on a verdict or findings of the court and must be within the issues presented to the court. In Morse v. Morse (1945), 116 Mont. 504, 154 P.2d 982, 984, this Court said:
“ ‘There is no principle of law more firmly established than that the judgment must follow and conform to the verdict, decision, or findings in all substantial particulars. (Citing authority.)’ ”

The single issue before the District Court at the July 28, 1987 hearing was the amount of accumulated visitation, if any, that the father was to have of the minor child. The effect of the oral order of the District Court at the conclusion of that hearing, and its request to mother’s counsel, was simply to frame an order encompassing the stated visitation dates for the father. The matters contained in the subsequent order of September 3, 1987, in paragraph 2, are not supported by findings, though the order modifies, in several respects, the original joint custody agreement between the parents, which the District Court declared on July 3, 1986, would govern all subjects relating to visitation. Indeed, during the July 28, 1987 hearing on the motion for accumulated visitation, the court repeatedly brought counsel back to the terms of the agreement to focus on the issues then before it. A judgment or final order adjudging matters outside the issues raised by the pleadings is so far void. Welch v. All Persons, etc. (1927), 78 Mont. 370, 254 P. 179. In Old Fashion Baptist Church v. Department of Revenue (1983), 206 Mont. 451, 457, 671 P.2d 625, 628, we said:

“A district court does not have jurisdiction to grant relief outside of the issues, presented by the pleadings unless the parties stipulate that the other questions be considered or that the pleadings are amended to conform to the proof. (Citing authority.) In National Surety Corporation [(1948), 121 Mont. 202, 192 P.2d 317], this Court recognized that ‘the rule in Montana as well as in other jurisdictions seems to be well settled that a judgment must be based on a verdict or findings of the court and must be within the issues presented to the court.' This rule was clearly upheld in Heller, [v. Osbursen (1973)] 162 Mont. [188] at 188, 510 P.2d [13] at 16 (emphasis in original).”

Under the rule in Welch, supra, that portion of the District Court’s September 3, 1987 order relating to accumulated leave is valid, but the remaining portion, being outside the issues, is void. We therefore, in this case, reverse the decision of the District Court refusing to amend its order or to grant a new hearing. That portion of the District Court judgment dated September 3, 1987 relating to accumulated visitation is upheld, but that portion designated as-paragraph 2 is found and held by us to be void and of no effect.

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