text:
    JOYCE TIPTON and LEONA D. WETHERALL, Plaintiffs and Appellants, v. TERRY T. BENNETT and BRENDA M. BENNETT, husband and wife, Defendants, Respondents and Cross-Appellants.
    No. 96-616.
    Submitted on Briefs February 20, 1997.
    Rehearing Denied April 3, 1997.
    Decided March 11, 1997.
    54 St.Rep. 229.
    281 Mont. 379.
    934 P.2d 203.

      For Appellants: Thomas F. Dowling; Dowling Law Firm, Helena.
    For Respondents: Thomas Q. Johnson; Keller, Reynolds, Drake, Johnson & Gillespie, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Joyce Tipton and Leona Wetherall filed suit against Terry and Brenda Bennett seeking to enforce a restriction contained in the Bennetts’ deed. This is an appeal by Tipton and Wetherall from the findings of fact, conclusions of law and order entered by the District Court after a bench trial. The Bennetts filed a cross-appeal. We affirm in part, reverse in part and remand for further proceedings.

Background

Although the parties appeal from certain legal conclusions reached by the court, they do not contest the court’s findings of fact. Accordingly, we set forth the following background which tracks the District Court’s factual recitation:

The Bennetts and Tipton entered into an agreement to sell and purchase real property, dated January 12, 1994, whereby the Bennetts were to purchase from Tipton six lots in the Seaver Park Addition, East Helena, Montana. A counteroffer was executed between the parties whereby the Bennetts acknowledged that Tipton’s deed restrictions were a part of any buy/sell agreement.

On February 11, 1994, a warranty deed was executed by Tipton conveying the six lots to the Bennetts with the following deed restrictions, among others:

That the real property hereof shall be used strictly for residential purposes and no business, trade or manufacture of any sort or nature shall be conducted thereon.

After having purchased the lots, the Bennetts constructed a storage building on the property. The building had a ground floor area of 3,200 square feet and a height of 21 feet 1 inch.

Appellant Wetherall is the owner of the property immediately adjacent to the Bennetts’ property. Wetherall’s property is subject to the same deed restrictions set forth above.

Prior to purchasing this property, the Bennetts asked a real estate agent to show them some property on which they would be able to construct a large storage-type building. The Bennetts purchased the property in question after being assured by the real estate agent that the deed restrictions did not preclude building such a structure. The real estate agent advised Tipton that the Bennetts intended to build a garage and then a house, six months to a year later.

After purchasing the property, the Bennetts obtained a building permit to construct the storage building. The stated purpose of the building on the permit application was for “personal storage.” At trial, the Bennetts described the building as a large garage. The court, however, found that it looked like a storage building rather than a residential garage. To date, no house has been erected on the property and the Bennetts testified that they would not be building a house on the property for the next few years.

The neighborhood in the immediate vicinity of the property in question consists of single family residences. The court found that, “[t]he storage building does not look like a large garage and does not blend in with the character of the neighborhood.” The neighbors characterized the building as an eyesore and felt that the building has devalued their properties. The Bennetts have been storing only personal property in the building. There was no evidence that they have used the building for commercial or business purposes.

The Bennetts argue that since Tipton was forewarned of the Bennetts’ intent to build a storage building and since she acquiesced in its construction, she is estopped from challenging the existence of the building.

Having found the above facts, the District Court concluded that the restrictions were clear and unambiguous and that the Bennetts, although not in violation of the restriction on commercial use of the property, were in violation of the “for residential purposes only” restriction. The court then ordered that the Bennetts either remove the storage building within six months or place a residential dwelling on the property within one year from the date of the order. The court rejected the Bennetts’ estoppel argument.

Discussion

Recently in Toavs v. Sayre (1997), [281 Mont. 243], 934 P.2d 165 we held:

In interpreting restrictive covenants, we apply the same rules as apply to interpreting contracts. Gosnay v. Big Sky Owners Ass’n (1983), 205 Mont. 221, 227, 666 P.2d 1247, 1250. We read all covenants as a whole to ascertain their meaning. Gosnay, 666 P.2d at 1250. Where the language of the covenant is clear and explicit, that language will govern our interpretation of the covenants as a whole. The language of the covenant is to be understood in its ordinary and popular sense. Section 28-3-501, MCA. Restrictive covenants are to be strictly construed and ambiguities in a covenant are to be construed to allow free use of the property. Town & Country Estates Ass’n v. Slater (1987), 227 Mont. 489, 492, 740 P.2d 668, 670-71 (quoting State v. District Court (1980), 187 Mont. 126, 130, 609 P.2d 245, 248). However, the free use of the property must be balanced against the rights of the other purchasers in the subdivision.

Here, the deed in question restricts use of the property to “residential” use only. The question presented is whether the Bennetts’ 3,200 square foot storage building is consistent with that restriction. We addressed a similar question in Hillcrest Homeowners Ass’n v. Wiley (1989), 239 Mont. 54, 778 P.2d 421. Hillcrest involved restrictive covenants in a residential subdivision which limited use to “single family residential purposes.” Wileys purchased a lot in the subdivision and erected a steel sided garage. Seven years later, when Wileys had not constructed a residence in conjunction with the garage, the Homeowner’s Association filed suit to have the garage removed. The district court held that the garage did not violate the restrictive covenants. Hillcrest, 778 P.2d at 422.

Relying on Webster’s Ninth New Collegiate Dictionary (1986), we defined “residential” as “ ‘used as a residence or by residents.’ ” “Residence” was defined as “ ‘the act or fact of dwelling in a place for some time.’ ” We then noted: “Consistent with these definitions, courts have held that a garage built on a lot without a dwelling house on the same lot violates a restrictive covenant when the covenant specifically limits a lot’s use to ‘residential purposes.’ ” Hillcrest, 778 P.2d at 423. We also quoted with approval the Washington Court of Appeals’ holding that: “A private garage is a proper appurtenance necessary to the enjoyment of a dwelling house and does not violate a ‘for residence purposes only’ covenant [cites omitted].” Hillcrest, 778 P.2d at 423 (citing Sandy Point Improvement Co. v. Huber (Wash.App. 1980), 613 P.2d 160). Based upon these authorities, we reversed the district court, and held:

Reading the covenant as a whole and in light of the popular and ordinary meaning of “residential,” a garage, by itself, is not consistent with “single family residential purposes” when the garage is not used in conjunction with a residential dwelling.

Hillcrest, 778 P.2d at 423.

In the present case, the District Court found that the building in question “is not even a garage, but a large storage building.” Thus, the court held that the Bennetts are in violation of the covenant restricting use to “residential purposes.” The court then observed that the covenants do not prohibit a storage building if its use is incidental to a residential dwelling located on the property. Accordingly, the court ordered the Bennetts to either remove the building within six months or construct a residential dwelling on the premises within one year. We affirm the court’s conclusion that the building violates the covenant.

We reverse the court’s order in that it allows the Bennetts to keep the storage building on the condition that they construct a residence on the property within one year. This later provision assumes that any building used incidental to a residence is permissible under the covenant. We hold that this interpretation of the covenant is too broad. The covenant clearly and unambiguously restricts usage to “residential purposes.” The question is whether a large storage building qualifies as “for residential purposes.” The District Court’s own factual findings do not support such a conclusion. In Hillcrest, we recognized that a garage “is a proper appurtenance necessary to the enjoyment of a dwelling house ...” Hillcrest, 778 P.2d at 423. In the present suit, the District Court acknowledged that the structure is not a garage; rather it is a 3,200 square foot storage building. With or without a residence, a 3,200 square foot storage building is not an appurtenance necessary to the enjoyment of a dwelling house. The building violates the covenant, not only because it stands alone without a dwelling, but also due to the fact that a 3,200 square foot storage building is not consistent with “residential purposes.” In that it allows the Bennetts to keep the storage building on the condition that they construct a dwelling within one year, the court’s order is reversed.

The Bennetts’claim of estoppel

The Bennetts argue strenuously that, since Tipton knew, before she sold the property to the Bennetts, that they planned to build a storage building and since she acquiesced in its construction, she is equitably estopped from complaining about the building. The District Court rejected this theory.

Even assuming, for sake of argument only, that Tipton would be equitably estopped from complaining, there is no argument or basis for finding that Wetherall, the other plaintiff to this suit, received any advance notice of the Bennetts’ intent or that she explicitly or impliedly consented to construction of the building. That being the case, even if Tipton were estopped, we would arrive at the same conclusions on the basis of Wetherall’s complaint. Accordingly, there is no need to discuss equitable estoppel. We affirm the District Court in its rejection of the Bennetts’ estoppel theory.

Affirmed in part, reversed in part and remanded for further proceedings consistent herewith.

JUSTICES NELSON, REGNIER, TRIEWEILER and GRAY concur.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    GLENN F. STARKENBURG, for himself and as Personal Representative of the Estate of KIMBERLY KELLY STARKENBURG, on behalf of the heirs and successors of decedent; APRIL WILLIAMS McCARTY, Plaintiffs and Respondents, v. STATE OF MONTANA, Defendant and Appellant.
    No. 95-496.
    Submitted September 17, 1996.
    Decided March 11, 1997.
    54 St.Rep. 214.
    282 Mont. 1.
    934 P.2d 1018.

      See C.J.S. Pardon and Parole § 42.

      For Appellant: Maxon R. Davis (argued), Kevin C. Meek; Davis, Hatley, Haffeman & Tighe, Great Falls.
    For Respondents: James G. Hunt, James P. Molloy (argued); Dix, Hunt & Molloy Law Firm, Helena; Janet L. Rice; Schroeter, Goldmark & Bender, Seattle, Washington; Ralph A. Alfieri; Law Offices of Ralph A. Alfieri, Seattle, Washington.
   JUSTICE GRAY

delivered the Opinion of the Court.

The State of Montana (State) appeals from the judgment entered by the First Judicial District Court, Lewis and Clark County, on a jury verdict awarding Glenn and Lois Starkenburg $250,000 in damages plus their costs, the Estate of Kimberly Starkenburg $210,000 in damages plus its costs, and April Williams McCarty $400,000 in damages plus her costs. We affirm.

We restate the issues on appeal as follows:

1. Did the District Court err in denying the State’s motion for summary judgment and motion for directed verdict?

2. Did the District Court abuse its discretion in instructing the jury regarding a parole officer’s duty?

3. Did the District Court abuse its discretion in refusing to declare a mistrial?

4. Did the District Court err in submitting the Starkenburg survival action to the jury and in instructing the jury thereon?

Charles Corliss (Corliss) and an accomplice kidnapped and murdered Donald Hammer, a Montana businessman, in 1965. Corliss was sentenced to imprisonment for life at the Montana State Prison (Prison) for the execution-style murder and to an additional ten-year sentence for the kidnapping, to be served consecutively to the life sentence.

While at the Prison, Corliss attempted to escape several times. In one such attempt in 1968, he and other inmates tied up a Prison employee. Corliss pled guilty to holding a person against his will and received a three-year deferred sentence. Corliss escaped from the Prison in 1974 and was apprehended nine days later at the home of his wife, Betty Corliss (Betty), in Deer Lodge, Montana. He pled guilty to escape and received a five-year sentence to be served consecutively to his sentences for kidnapping and murder. Corliss also attempted suicide several times while incarcerated and was transferred from the Prison to the Warm Springs State Hospital (Warm Springs) in 1979 as a result of such a suicide attempt.

Corliss was released from Warm Springs in 1983 on a furlough and subsequently was granted parole in 1985. Corliss’parole carried with it the standard conditions and restrictions, including the prohibition against owning, possessing or being in control of any firearm or other deadly weapon.

From 1986 through the time period relevant here, David Robbins (Robbins) was Corliss’ parole officer. On April 13, 1990, Robbins authorized Corliss to travel to Bellevue, Washington, for a vacation and to look for employment. Under the written two-week travel permit, Corliss was to reside with his brother-in-law in Bellevue. Robbins did not verify Corliss’ living arrangement in Washington and, indeed, Corliss did. not live with his brother-in-law during that time. Nor did Robbins notify Washington authorities of Corliss’ presence there, as is the standard procedure under such circumstances.

Robbins instructed Corliss to visit a parole officer while in Washington, but Corliss failed to do so. After spending approximately two and a half months in Washington, Corliss sent Robbins a letter dated July 5, 1990, informing Robbins that he was unable to find a parole officer. Robbins did not take any action to ensure that Corliss comply with his instruction to report to a Washington parole officer. At that time, Corliss’ travel permit had been expired for approximately two months.

During the same time period, Corliss called Robbins from Washington and informed Robbins that he had a girlfriend, Tamera Farrington (Farrington), and that she had obtained a temporary restraining order (TRO) against him for allegedly putting sugar in her gas tank. Corliss assured Robbins that it was all a misunderstanding. According to Robbins, Farrington then got on the telephone and reiterated that the TRO was the result of a misunderstanding; Farrington denies that she ever spoke with Robbins on the telephone. Robbins did not make a record of his conversation with either Corliss or Farrington.

Robbins did not ask Corliss to send him a copy of the TRO or attempt to obtain a copy from Washington authorities. The TRO was filed on July 5, 1990, and described a number of incidents in which Corliss had acted violently toward Farrington. Farrington alleged in the TRO that Corliss struck her on two occasions in March of 1990 and repeatedly hit her on two other occasions in April and May of 1990. She stated that Corliss “threatened to kill [her] and described the places he could ‘hide Iher] body.’ He threatened [her] family, [and] friends. ...” Farrington further alleged that, on July 1, 1990, Corliss backhanded her twice across the face, put sugar in her gas tank and threatened her life.

Farrington sent Robbins a letter dated July 12,1990, stating that “[t]his is to assure you that what [Corliss] is telling you is true.” She stated that she had no intention of filing charges against Corliss because she could not be sure he was the one who put sugar in her gas tank. Farrington did not mention the allegations contained in the TRO regarding Corliss’ violence and threats against her or his threats against her family and friends. Farrington included her address and telephone number at work in the letter. Robbins did not attempt to contact her regarding the TRO or her letter.

Corliss returned to Montana on July 13, 1990, and met with Robbins. Robbins issued Corliss a thirty-day travel permit the same day which allowed Corliss to relocate his family to Washington.

Approximately two weeks later, Robbins received a telephone call from Corliss and his wife, Betty. Corliss informed Robbins that Betty had learned of his affair with Farrington and had threatened him with a gun and a knife at their home. Betty denied threatening Corliss with the weapons. She did express a great deal of anger about Robbins’ failure to tell her about Corliss’ affair prior to her quitting her job in Montana and relocating to Washington.

Corliss obtained a TRO against Betty on August 1,1990, and sent a copy of the TRO to Robbins. The TRO described an altercation between Corliss and Betty where Betty “went to a bedroom and took a .38 pistol and said she was going to kill [Corliss].” Although possession of a firearm is a parole violation, Robbins did not investigate whether there was, in fact, a firearm in the Corliss residence.

Corliss contacted Robbins in early October and informed Robbins that he was reconciling with Betty and moving back into their home. Robbins did not ask whether the .38 pistol Corliss had said was involved in the altercation with Betty was still located in the home.

In a letter to Robbins dated October 10, 1990, Corliss stated that Farrington was not going to “quietly go out of [his] life.” Five days later, Corliss broke into Farrington’s home while she was away and hid until her return.

Farrington arrived home with three friends — Kimberly Starkenburg (Kimberly), April McCarty (April) and Brenda Mahoni (Brenda). Farrington, April and Brenda went directly inside while Kimberly remained outside. Brenda opened a bedroom door and Corliss stepped out and held an “old revolver” to Brenda’s face. He made April and Brenda kneel on the floor next to each other. He hit Farrington, knocking her to the floor, and then stepped outside, grabbed Kimberly by the arm and dragged her inside. Corliss made Kimberly kneel on the floor beside April and Brenda.

Farrington got up and ran out the front door. Corliss fired a shot at her, but missed. Corliss then returned to where the three women were kneeling. He shot Kimberly first and then shot April and Brenda. April and Brenda fell to the floor after being shot; Kimberly remained kneeling. Corliss shot Kimberly a second time and she fell to the floor. He then fled out the front door.

April went to Kimberly’s aid, trying to get her to speak. April could hear gurgling noises coming from Kimberly which sounded ‘like she was trying to breathe, catch her breath.” April then tried to go out the back door for help. Corliss was hiding in the back yard and, when April opened the door, he shot her a second time. Farrington arrived with the police approximately fifteen to twenty minutes later. Kimberly died as a result of her gunshot wounds. April and Brenda survived; April has a .38 caliber bullet lodged near her spine.

Glenn Starkenburg, individually and as the personal representative of the estate of Kimberly Starkenburg, and April McCarty and her husband, Cary McCarty, (collectively, Starkenburg) filed separate complaints against the State alleging negligence in improperly supervising Corliss. Starkenburg’s complaint also stated a survival claim on Kimberly’s behalf. By consent of all parties, the cases were consolidated for trial.

A jury trial was held in August of 1995. The jury found that the State was negligent and that its negligence caused Kimberly’s injuries and death and April’s injuries; it further found that Kimberly’s death was not instantaneous. The jury awarded damages against the State accordingly and judgment was entered on the verdict. The State appeals.

Additional facts are set forth below where necessary for our resolution of the issues before us.

DISCUSSION

1. Did the District Court err in denying the State’s motion for summary judgment and for a directed verdict?

The State moved for summary judgment in March of 1995, contending that Corliss’ criminal acts of shooting Kimberly and April were unforeseeable as a matter of law. It argued that Starkenburg could not establish proximate causation in this case because Corliss’ acts constituted an intervening, superseding cause of Kimberly’s injuries and death and April’s injuries. The District Court denied the motion. After presentation of Starkenburg’s case-in-chief, the State moved for a directed verdict on the same basis and the court denied that motion as well.

Although the District Court did not specifically state its rationale for denying the State’s motions for summary judgment and for a directed verdict, the court’s conclusion that Corliss’ criminal acts of shooting Kimberly and April were not unforeseeable as a matter of law was implicit in the denials. We review a district court’s conclusion of law to determine if the court’s interpretation of the law is correct. Werre v. David (1996), 275 Mont. 376, 385, 913 P.2d 625, 631.

The State’s argument that Corliss’ criminal acts were unforeseeable as a matter of law is premised primarily on its underlying contention that “the intentionally wrongful acts of third parties are simply not viewed as foreseeable, so as to give rise to the imposition of liability upon the State.” We recently clarified, after the trial and briefing on appeal in this case, that the intervening criminal act of a third party may be foreseeable and that, in such cases, the factfinder should decide causation in the same manner as in any other intervening causation case. Estate of Strever v. Cline (1996), 278 Mont. 165, 924 P.2d 666, 673-74.

In Estate of Strever, Tom Susanj (Susanj) left his unlocked pickup truck on a street in Billings while he visited his father. A radar detector, cassette recorder, jumper cables, binoculars, fishing rod, tapes, tool box and camera were left in the pickup’s cab; in addition, a handgun and ammunition were under the seat of the pickup in a white bag. Estate of Strever, 924 P.2d at 668. Three young boys— Robert Strever (Strever), Steven Cline (Cline) and Bowen Racine (Racine) — entered Susanj’s pickup and stole several items. Cline had been smoking marijuana earlier in the night. Teenager Thomas Morris (Morris) joined the three boys after seeing them near Susanj’s pickup. Morris removed the handgun and ammunition from beneath the seat in the pickup. Estate ofStrever, 924 P.2d at 668.

Cline subsequently gained control of the gun and waived it around with his finger on the trigger. While examining it, Cline ejected a live shell from the chamber. He was trying to remove the ammunition clip from the gun when the gun discharged. The bullet struck Strever in the head and Strever died. Estate ofStrever, 924 P.2d at 668. Strever’s estate sued Susanj, as well as Cline, Morris and Racine. The district court granted summary judgment in favor of Susanj and Strever’s estate appealed. Estate ofStrever, 924 P.2d at 668.

On appeal, we addressed at length the issue of foreseeability insofar as it relates to the causation element of a negligence case involving intervening criminal acts by third parties. See Estate of Strever, 924 P.2d at 672-74. There, Susanj was neither aware, nor had reason to be aware, of any crime problem in the neighborhood where he left his pickup unlocked. Estate of Strever, 924 P.2d at 668. We observed that the record reflected two intervening criminal acts by the boys (the two thefts from Susanj’s pickup) and grossly negligent intervening acts by Cline (waving the stolen gun around with his finger on the trigger, while high on marijuana, and then trying to unload it). Estate of Strever, 924 P.2d at 674. We concluded that reasonable minds could come to but one conclusion — that the series of intervening acts was reasonably unforeseeable and, therefore, Susanj was not liable for Strever’s death as a matter of law. Estate of Strever, 924 P.2d at 674. Accordingly, we held that the district court properly granted summary judgment to Susanj because any negligence by Susanj was superseded by the independent intervening criminal and grossly negligent acts of Cline, Strever, Morris, and Racine. Estate ofStrever, 924 P.2d at 674.

Notwithstanding our ultimate holding in Estate of Strever, we emphasized that cases involving intervening superseding acts ordinarily present questions of fact properly left to the trier of fact to resolve. Estate ofStrever, 924 P.2d at 674.

If, under the facts of a given case, an intervening criminal act is one which the defendant might reasonably foresee, then there is no reason why the fact finder should not decide causation the same as with any other intervening causation case.
[TJrial courts must continue to carefully review each fact situation involving intervening criminal acts on a case-by-case basis, and it is only where reasonable minds could come to but one conclusion, that this issue is properly disposed of as a matter of law.

Estate of Strever, 924 P.2d at 674. Thus, contrary to the State’s assertion in the present case, intervening criminal acts of third persons are not automatically unforeseeable as a matter of law. Rather, such acts must be addressed in the foreseeability context on a case-by-case basis.

Here, numerous facts relating to the foreseeability of Corliss’ criminal acts during the relevant time period of his parole were before the District Court at the time of the summary judgment proceedings. Under both travel permits issued by Robbins, Corliss remained in Washington beyond the time allowed and Robbins took no corrective action. When Robbins issued the April 13, 1990, permit, he ordered Corliss to visit a parole officer while in Washington. Corliss failed to do so and, notwithstanding Robbins’ knowledge of Corliss’ failure to comply, Robbins took no action.

In addition, Robbins knew that Corliss had a girlfriend, Farrington, who had obtained a TRO against Corliss in July of 1990. Robbins did not attempt to obtain a copy of the TRO or investigate the circumstances surrounding the TRO. Robbins’ deposition testimony established that he could have obtained the Farrington TRO, but he “never thought about gaining access to it.” Had Robbins obtained a copy of the TRO, he would have learned that Farrington alleged that Corliss was violent toward her on numerous occasions and had threatened to kill her and her family and friends.

In late July of 1990, Corliss alerted Robbins that an altercation had occurred between himself and Betty, during which Betty retrieved a gun from a bedroom of their home. Robbins received a copy of a TRO obtained by Corliss against Betty which contained a statement to the same effect. Even though Corliss was subject to a parole condition which prohibited the possession of a firearm, Robbins neither confronted Corliss about the possible firearm possession nor investigated the presence of a gun in the Corliss household.

Faced with the foregoing facts, the District Court implicitly concluded that Corliss’ criminal acts were not unforeseeable as a matter of law. As discussed above, such a conclusion will be correct in the usual case; a determination to the contrary — that intervening criminal acts were unforeseeable as a matter of law — is appropriate only where reasonable minds could reach but one conclusion regarding foreseeability. See Estate of Strever, 924 P.2d at 674.

Unlike Estate of Strever, the issue of causation in the present case is not susceptible to determination as a matter of law. There, the record was devoid of any facts from which a jury could determine that Susanj should have foreseen the series of intervening criminal and grossly negligent acts of the minor boys. Here, however, Robbins was confronted with facts that indicated that Corliss — a convicted execution-style murderer — may have had a .38 pistol in his home. Moreover, Robbins had access to Farrington’s TRO which contained allegations of violence by Corliss against Farrington, as well as threats against Farrington and her family and friends. Based on the facts of this case, a jury properly could find that Robbins could reasonably have foreseen criminal acts of violence against Farrington and her friends. Therefore, the Strever test for unforeseeability of intervening criminal acts as a matter of law — that reasonable minds could come to but one conclusion — was not met here and the issue of proximate causation properly was left for the jury.

In support of its “unforeseeability as a matter of law” argument and its contention that the District Court erred in this regard, the State relies on VanLuchene v. State (1990), 244 Mont. 397, 797 P.2d 932; Kiger v. State (1990), 245 Mont. 457, 802 P.2d 1248; U.S. Fidelity and Guar. Co. v. Camp (1991), 253 Mont. 64, 831 P.2d 586; and King v. State (1993), 259 Mont. 393, 856 P.2d 954. We discussed and distinguished these cases in Estate of Strever which, as mentioned above, was not available to the State when briefing the present case for appeal. The cases are equally distinguishable from the present case and do not support a determination that Corliss’ criminal acts were unforeseeable as a matter of law. We review them only briefly below.

In VanLuchene, Robert Homback was released from prison after serving his entire sentence for felony sexual assault. VanLuchene, 797 P.2d at 933. Several months later, he sexually assaulted and killed eight-year-old Ryan VanLuchene. VanLuchene’s family sued the State, alleging that it negligently failed to satisfy its statutory duty of rehabilitating Homback. The district court dismissed the plaintiffs’ complaint and the plaintiffs appealed. VanLuchene, 797 P.2d at 933-34.

Like the present case, VanLuchene involved intervening criminal acts by a third party. We concluded, however, that the State did not owe a duty to the plaintiffs because, once Hornback served his entire sentence, the State was required to release him. See VanLuchene, 797 P.2d at 936. Accordingly, we did not analyze Hornback’s intervening acts in the context of causation on appeal. Thus, VanLuchene is not applicable here.

In Kiger, Danny Arledge shot and critically injured Katrina Eager while trying to steal her car approximately eighteen days after being paroled from prison. Prison authorities had miscalculated when Arledge would be eligible for parole and, as a result, he still should have been in prison on the day of the shooting. Kiger, 802 P.2d at 1249. Kiger sued the State for negligence and the district court granted summary judgment to the State. Kiger, 802 P.2d at 1249.

The foreseeability of Arledge’s criminal act of shooting Kiger was at issue on appeal. Kiger, 802 P.2d at 1249-51. We noted that, in order for the State’s negligence in prematurely paroling Arledge to be the proximate cause of Eiger’s injuries, the State must have been able to reasonably foresee the consequences of its negligence. Kiger, 802 P.2d at 1251 (citation omitted). Under the facts before us, we concluded that there were too many “what ifs” that were superseding events, breaking the chain of causation between the State’s miscalculation and Eiger’s injuries. Kiger, 802 P.2d at 1251.

Our decision in Kiger was premised on the specific facts of that case. Unlike the present case, the record before us in Niger was devoid of evidence indicating that Arledge’s criminal acts were reasonably foreseeable by the State. See Kiger, 802 P.2d at 1250-51.

In Camp, Randall Broadbrooks pled guilty to driving under the influence of alcohol, fourth offense, and driving while a habitual traffic offender. He was sentenced to one year in the countyj ail and participated in a work release program under which he was released from jail from 8:00 a.m. until 5:00 p.m. each weekday. Camp, 831 P.2d at 587.

On a Friday evening, Broadbrooks went to his apartment instead of returning to jail and the police were unable to locate him. He apparently fell asleep while smoking a cigarette. The cigarette fell and ignited a couch, resulting in a fire which damaged the apartment building. The insurer for the owners of the apartment building sued the Phillips County Sheriff, Mike Camp, for negligence, attempting to recover money paid to its insureds as a result of the fire. The district court granted Camp’s motion for summary judgment and the plaintiff appealed. Camp, 831 P.2d at 587-88.

On appeal, we noted that Camp could be held hable only if Broad-brooks’ act of falling asleep while smoking a cigarette in his apartment was reasonably foreseeable. We concluded that it was not and, therefore, that Broadbrooks’ act was a superseding cause of the plaintiff’s injuries. Camp, 831 P.2d at 590.

The record before us in Camp did not contain any evidence forewarning that Broadbrooks might accidently start a fire at his apartment. In the present case, however, the record contains sufficient evidence to raise a question of fact for the jury as to whether Corliss’ criminal acts against Farrington and her friends were foreseeable.

In King, Victor Buddell was involuntarily committed to Warm Springs for a three-month term. A recommitment hearing was held several months later and the district court determined that, while Buddell was a danger to himself, the least restrictive environment for him was a conditional release to the community. The State did not appeal the rélease order. Less than a month after his release, Buddell killed David King. King, 856 P.2d at 955. King’s parents sued the State for negligence and the district court dismissed the complaint for failure to state a claim, concluding that the State did not have a duty to appeal the release order. King, 856 P.2d at 955.

On appeal, we noted that a statute permitted the State to appeal, but that the statute was not mandatory. On that basis, we concluded that the State did not have a duty to appeal the release order. We also concluded that Buddell’s act was not reasonably foreseeable by the State and stated that, when an injury is caused by a third party’s intervening act, the defendant’s negligent actions cannot be the proximate cause of the injury. King, 856 P.2d at 956-57.

In the present case, the State relies on our statement in King that, “if a plaintiff’s injury is caused by the intervening act of a third-party, the defendant’s actions cannot be viewed as the proximate cause of that injury.” See King, 856 P.2d at 956 (citing Graham v. Montana State Univ. (1988), 235 Mont. 284, 289-90, 767 P.2d 301, 304) (emphasis added). We overruled that statement from King in Estate of Strever, however, noting that Graham did not support our use of the word “cannot” regarding intervening acts of third parties. Estate of Strever, 924 P.2d at 673.

The State’s reliance on VanLuchene, Kiger, Camp, and King is misplaced. Based on the record in this case, we hold that the District Court was correct in implicitly concluding that Corliss’ criminal acts of shooting Kimberly and April were not unforeseeable as a matter of law and in denying the State’s motion for summary judgment.

As set forth above, the State renewed its “unforeseeable as a matter of law” argument at the close of Starkenburg’s case-in-chief via a motion for a directed verdict. The District Court denied the motion.

A directed verdict is proper only when there is a complete absence of any evidence which would justify submitting an issue to a jury. Werre, 913 P.2d at 630. Here, our conclusion that the facts in this case would support a finding that Robbins could reasonably have foreseen criminal acts of violence by Corliss against Farrington and her friends establishes that there was evidence to justify submitting the causation issue to the jury. On that basis, we hold that the District Court properly denied the State’s motion for a directed verdict.

2. Did the District Court abuse its discretion in instructing the jury regarding a parole officer’s duty?

The State argues that, in both giving and refusing certain instructions, the District Court failed to properly instruct the jury on the duty of a parole officer. A district court has discretion in instructing the jury and we will not reverse the court on the basis of alleged instructional errors absent an abuse of discretion. Werre, 913 P.2d at 635 (citation omitted).

The State contends that the District Court erred in giving Instruction Nos. 9 and 14, both of which relate to duty. Instruction No. 9 states:

Every person is responsible for injury to the person of another caused by his negligence.
Negligence is the failure to use reasonable care. Negligence may consist of action or inaction. Aparóle officer is negligent if he fails to act as an ordinarily prudent parole officer would act under the circumstances.

Instruction No. 14 reiterates a parole officer’s “duty to exercise reasonable care to control” a parolee. According to the State, these instructions are incorrect statements of Montana law on a parole officer’s duty because Robbins owed no duty to Starkenburg. Whether a legal duty exists is a question of law to be determined by the district court. Estate ofStrever, 924 P.2d at 669 (citation omitted). Thus, we review the challenged instructions to determine whether they correctly state the law on a parole officer’s duty in this case.

The first three sentences of Instruction No. 9 merely restate the principles of negligence contained in Montana statute and case law. For example, § 27-1-701, MCA, states that, except as otherwise provided by law, “everyone is responsible ... for an injury occasioned to another by his want of ordinary care ... [;]” similarly, under § 1-1-204(4), MCA, negligence “denote [s] a want of the attention to the nature or probable consequences of the act or omission that a prudent man would ordinarily give in acting in his own concerns.” Our cases repeatedly reiterate that, ordinarily, negligence involves the failure of an actor to use reasonable care. See, e.g., Estate of Strever, 924 P.2d at 670-71; Jacobsen v. State (1989), 236 Mont. 91, 769 P.2d 694.

The general principles of negligence contained in Instruction No. 9 are correct statements of Montana law and, indeed, the State does not contend otherwise. The State’s assertions of legal error with regard to Instruction Nos. 9 and 14 relate to the portions of those instructions which apply these general negligence principles to a parole officer.

We observe at the outset that the State cites to no Montana statute or case law providing an exception for parole officers from the duty generally imposed by § 27-1-701, MCA. Moreover, parole of inmates from the Prison and the status and supervision of parolees thereafter are governed by statute in Montana. The parole of an imprisoned person involves release to the community prior to the expiration of the prison sentence imposed. See § 46-1-202(15), MCA. “A prisoner while on parole remains in the legal custody of the institution from which the prisoner was released but is subject to the orders of the [Board of Pardons and Parole].” Section 46-23-215(1), MCA. The Department of Corrections “retain [s] custody of all persons placed on parole and shall supervise the persons during their parole periods in accordance with the conditions set by the board.” Section 46-23-1021(1), MCA. Thus, in Montana, a parolee remains in the State’s “custody” and the meaning of “custody” is interwoven with defining the State’s duty with regard to parolees.

The legislature has not defined “custody” in the parole context. Custody generally is defined as “judicial or penal safekeeping: control of a thing or person with such actual or constructive possession as fulfills the purpose of the law or duty requiring it. ...” Webster’s Third New International Dictionary, 559 (1971). Similarly, Black’s Law Dictionary, 460 (1968) defines custody as “ [detention; charge; control; possession. The term ... may mean actual imprisonment... or mere power, legal or physical, of imprisoning or of taking manual possession.” Interpreting §§ 46-23-215(1) and 46-23-1021(1), MCA, according to the plain and ordinary meaning of the language used therein, as we must (see Werre 913 P.2d at 631), it is clear that the State continues to have control over parolees after release from the Prison. Furthermore, the State is statutorily required to supervise parolees — that is, persons in its custody and over whom it has power and control — according to the parole conditions imposed. Section 46-23-1021(1), MCA.

Instruction No. 9 does nothing more than apply general negligence standards to parole officers in supervising parolees. Moreover, it does so in a manner entirely consistent with applicable statutes. Similarly, Instruction No. 14 merely imposes a duty to exercise reasonable care to control a parolee who already is, by statute, subject to that control.

Nor does the foreseeability component of duty weigh against the existence of a duty in this case. We recently discussed at length, and clarified, Montana law regarding foreseeability insofar as it relates to the duty element of negligence. See Estate of Strever, 924 P.2d at 670-72; Busta v. Columbus Hosp. Corp. (1996), 276 Mont. 342, 916 P.2d 122. We stated that

[floreseeability is of prime importance in establishing the element of duty. ... If a reasonably prudent defendant can foresee neither any danger of direct injury nor any risk from an intervening cause he is simply not negligent.
[Since duty] is inherently intertwined with foreseeability, such duty or obligation must necessarily be adjudicated only upon a case-to-case basis.

Busta, 916 P.2d at 134 (quoting Mang v. Eliasson (1969), 153 Mont. 431, 437-39, 458 P.2d 777, 781-82).

Considerations of foreseeability in the duty context are directed to the foreseeability of the risk involved with the conduct at issue. See Estate of Strever, 924 P.2d at 671-72. Indeed,

[t]he obligation of defendants turns on whether:

“... the offending conduct foreseeably involved unreasonably great risk of harm to the interests of someone other than the actor. ... Duty, in other words, is measured by the scope of the risk which negligent conduct foreseeably entails.”
... And absent foreseeability, there is no duty owed by defendants to plaintiff. ...

Busta, 916 P.2d at 134 (quoting Mang, 458 P.2d at 781-82)(emphasis added).

In this case, the conduct at issue is Robbins’ supervision of Corliss, a parolee originally convicted and sentenced to a life sentence at the Prison for an execution-style murder. Both the State and Starkenburg agree that the primary responsibility of a parole officer in supervising a parolee is the protection of society. In this regard, Robbins conceded at trial that an execution-style murderer should be supervised more closely than other types of parolees because of the potential danger posed by such a parolee.

On this record, it is clear that any negligent supervision by Robbins of Corliss foreseeably involved an unreasonably great risk of harm to persons other than Robbins generally and to Farrington and those close to her in particular. Furthermore, given that Montana statutes maintain parolees in legal custody and require parole supervision in accordance with the parolee’s conditions of parole, Robbins clearly had a duty to exercise reasonable care to control Corbss and prevent him from doing such harm.

Finally, we take note of — and reject — the State’s “sky is falling” arguments in this regard. Such arguments are not based on the law and have no place in a case involving fundamental principles of law and application of controlling statutes. Moreover, a duty to exercise reasonable care when the unreasonable risk of harm in failing to do so is foreseeable is hardly an extraordinary burden; such a duty is not — as the State is web aware — the equivalent of a duty to exercise 24-hour-a-day control. Considering Instruction Nos. 9 and 14 in light of general negbgence principles and Montana statutes which relate to parole and impose an affirmative duty to supervise, we conclude that they correctly state Montana law regarding a parole officer’s duty.

The State also asserts error in the District Court’s refusal of three of its proposed jury instructions based on the Restatement (Second) of Torts §§ 315 and 319 (1965). The State’s proposed jury instruction no. 16 states:

The State does not have a duty to control or take charge of a parolee to prevent him from doing harm to a third party victim unless a special relationship exists between the parole officer and the third party victim such that the parole officer would know or have reason to know that the specific identifiable third party victim would be the object of harm by the parolee. The above-described duty exists only to specifically identifiable individuals and is not a duty to protect the public at large.

Proposed instruction no. 18 provides:

A parole officer has no duty to control the conduct of a parolee to prevent him from causing physical harm to another unless:
(a) a special relationship exists between the parole officer and the parolee which imposes a duty upon the parole officer to control the parolee’s conduct, or
(b) a special relationship exists between the parole officer and the third party victim which gives to the third party victim a right to protection.

Finally, the State’s proposed instruction no. 19 reads:

A parole officer who takes charge of a parolee whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the parolee to prevent him from doing such harm.

The State contends that these proposed instructions correctly state the law applicable to its duty in the present case and negate the existence of any duty because no “special relationship” or “control” existed and Robbins did not “take charge” of Corliss.

On the face of it, these proposed instructions do not appear to be entirely consistent with either the Montana statutes governing parole or the foreseeability component of duty discussed above. In any event, however, we have not previously adopted the Restatement principles on which the proposed instructions were based and, given our conclusion above that Instruction Nos. 9 and 14 correctly state Montana law applicable to this case, we need not address them further here.

The State also asserts error in the District Court’s refusal of its proposed instruction no. 17. Review of that proposed instruction reveals that it is an instruction on cause in fact and proximate cause which is unrelated to the legal question of the existence of a duty in this case. The State did not present an argument regarding this instruction under any issue involving causation; as a result, we do not address it.

We hold that the District Court did not abuse its discretion in instructing the jury on Robbins’ duty in this case.

3. Did the District Court abuse its discretion in refusing to declare a mistrial?

During trial, April testified regarding the gun Corliss used to shoot her, Kimberly and Brenda. She testified that the gun was old and that it looked like a gun from a western movie; she noted that Corliss had to pull back the hammer before firing each shot. April also testified that the gun was from the 1800s and that

[t]he expert witness that testified at [Corliss’ criminal trial in Washington] said because of the grooves in the bullet, the slug that came through [her], and the depth of them, it was an older gun. It hadn’t been cleaned for quite sometime, over many years and it had worn grooves into it to make the grooves into the slug.

The State timely objected to this latter testimony and the District Court overruled the State’s objection. The court also denied the State’s related motion to strike the testimony regarding the year the gun was manufactured.

A week later, as the trial was drawing to a close, the State moved for a mistrial. In addition to renewing its argument that April’s testimony was inadmissible, the gravamen of the State’s motion was an allegation that Starkenburg’s counsel had knowingly presented false testimony by April. In this regard, the State advised the District Court that it had obtained a transcript of Corliss’ criminal trial and that the expert witness did not testify that the gun Corliss used was from the 1800s or was an older gun. The allegation of knowing presentation of false testimony was premised on the fact that Starkenburg’s counsel already had obtained the transcript and, therefore, had known all along-and concealed from the court-that April’s testimony was false. Starkenburg’s counsel denied knowingly presenting false testimony. He stated that, while April’s recollection of the expert testimony at the criminal trial may have been erroneous, she left Corliss’ criminal trial with the impression that the gun was a late 1800s gun.

The District Court reviewed April’s testimony and the testimony at issue from Corliss’ criminal trial. It concluded that April’s erroneous characterization of the criminal trial record was based on her own impressions of what she heard at that trial. On that basis, the court rejected the State’s contention that Starkenburg’s counsel knowingly put on false testimony and denied the State’s motion for a mistrial.

Raising again both the inadmissibility of April’s testimony and the knowing presentation of false testimony by Starkenburg’s counsel, the State argues on appeal that the District Court erred in refusing to grant a mistrial. We review a trial court’s denial of a motion for mistrial in a civil case for abuse of discretion. Dees v. American Nat’l Fire Ins. Co. (1993), 260 Mont. 431, 443, 861 P.2d 141, 148 (citing Kuhnke v. Fisher (1987), 227 Mont. 62, 68, 740 P.2d 625, 628). We address the State’s arguments on admissibility and knowing presentation of false testimony in turn.

Admissibility of April’s Testimony

Determinations of the admissibility of evidence are within the sound discretion of the trial court. In re Marriage of Lopez (1992), 255 Mont. 238, 245, 841 P.2d 1122, 1126 (citing Cooper v. Rosston (1988), 232 Mont. 186, 756 P.2d 1125). Absent an abuse of discretion, we will not reverse a district court’s ruling on the admissibility of evidence. See Werre, 913 P.2d at 633.

Hearsay is “a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801(c), M.R.Evid. April’s testimony regarding the expert witness testimony from Corliss’ criminal trial was clearly a statement other than one made by the declarant while testifying at trial. Starkenburg does not argue that the testimony was not offered to prove the truth of the matter asserted and does not contend that it falls within one of the exceptions to the hearsay rule; indeed, Starkenburg concedes that April’s testimony in this regard was inadmissible hearsay. Thus, we conclude that the District Court abused its discretion in admitting the testimony over the State’s objection.

The question remains, however, whether the court’s abuse of discretion constitutes reversible error. See Marriage of Lopez, 841 P.2d at 1126. An error in the admission of evidence is harmless and, as a result, does not warrant reversal unless the substantial rights of the complaining party have been materially affected. Rule 61, M.R.Civ.P.; Marriage of Lopez, 841 P.2d at 1126.

Here, the District Court provided the State with an opportunity to impeach April’s testimony via the transcript from the criminal trial. In addition, Starkenburg recalled April as a witness and she testified that she had been mistaken and did not know the manufacture date of the gun.

Moreover, the record before us contains other evidence regarding the gun used by Corliss. April testified without objection by the State that the gun was an “old revolver” and looked like a gun from a western movie. Farrington testified that Corliss had several “antique guns.” Furthermore, April has a .38 caliber bullet lodged near her spine as a result of Corliss’ attack and Corliss’ TRO against Betty stated that he and Betty had a .38 revolver in their home. On this record, April’s inadmissible testimony was merely cumulative and, as such, it did not affect the State’s substantial rights. See Hansen v. Hansen (1992), 254 Mont. 152, 160, 835 P.2d 748, 753; Thompkins v. Fuller (1983), 205 Mont. 168, 186, 667 P.2d 944, 953. Accordingly, we conclude that the District Court’s admission of April’s testimony was harmless error.

Mistrial Motion

The State argues that Starkenburg presented knowingly false testimony by April and, therefore, a mistrial was the only adequate remedy. The District Court considered the parties’ oral arguments, reviewed April’s testimony and the expert testimony from Corliss’ criminal trial, and concluded that April’s testimony was based on her overall impression from the criminal trial and an imperfect memory.

The District Court’s rejection of the State’s “knowingly false testimony” argument necessarily involved not only a review of transcripts, but a weighing of the credibility of both April and Starkenburg’s counsel. We consistently have held that a trial court acting as a finder of fact is in the best position to determine the credibility of witnesses, because it observes the witnesses and their demeanor in person; we are presented with only a “cold record” for review. See Matter of Seizure of $23,691.00 in U.S. Currency (1995), 273 Mont. 474, 485, 905 P.2d 148, 155 (citing State v. Flack (1993), 260 Mont. 181, 189, 860 P.2d 89, 94); Walden v. State (1991), 250 Mont. 132, 141-42, 818 P.2d 1190, 1196; Kartes v. Kartes (1977), 175 Mont. 210, 216-17, 573 P.2d 191, 195. Here, the District Court observed April during the testimony at issue and Starkenburg’s counsel during the response to the State’s allegation of knowing presentation of false testimony; having done so, it determined that no false testimony had been presented knowingly.

The State’s argument on appeal amounts to no more than a request that this Court substitute its judgment for that of the District Court regarding whether false testimony was presented knowingly. We do not substitute our judgment for that of a trial court on such matters. Seizure of $23,691.00, 905 P.2d at 155 (citations omitted).

We hold that the District Court did not abuse its discretion in refusing to declare a mistrial.

4. Did the District Court err in submitting the Starkenburg survival action to the jury and in instructing the jury thereon?

A cause of action which exists during a person’s lifetime survives upon his or her death. See § 27-1-501, MCA; Swanson v. Champion Int’l Corp. (1982), 197 Mont. 509, 515, 646 P.2d 1166, 1169. As a corollary, the decedent’s cause of action, commonly called a survival action, cannot be pursued if the decedent’s death was instantaneous. Swanson, 646 P.2d at 1169; see also Burns v. Fisher (1957), 132 Mont. 26, 30, 313 P.2d 1044, 1047.

[Where there] is not any appreciable length of time between the wrong and the death, or, in other words, the wrong and the death being coincident in point of time, the instant the wrong is committed the victim of the wrong has ceased to exist, [then] it seems impossible that there is any cause of action in favor of such victim. This conclusion seems inevitable when the elements which are to be considered in determining the measure of damages are taken into account.

Dillon v. Great N. Ry. Co. (1909), 38 Mont. 485, 496, 100 P. 960, 963. The personal representative of the decedent’s estate may pursue a survival action on behalf of the decedent’s estate and all damages recoverable in such an action are personal to the decedent. Swanson, 646 P.2d at 1169.

The plaintiff in a survival action has the burden of proving that the death was not instantaneous (see Burns, 313 P.2d at 1047), or, in other words, that the decedent survived the injury for an appreciable amount of time (see Dillon, 100 P. at 963). “[A]n appreciable amount of time” can be as short as a few seconds. See Stephens v. Brown (1972), 160 Mont. 453, 460, 503 P.2d 667, 670-71.

Submission of Survival Action to Jury

Prior to the end of trial, the State apparently made a motion in the nature of a motion for a directed verdict, arguing that there was insufficient evidence to present Kimberly’s survival action to the jury. The District Court denied the motion in chambers prior to convening court on the last morning of trial. The State contends that the court erred.

A directed verdict is proper only when there is a complete absence of any evidence which would justify submitting an issue to a jury, and all inferences which can be drawn from the evidence must be considered in a light most favorable to the opposing party. Werre, 913 P.2d at 630 (citation omitted). Whether there is sufficient evidence to send a cause of action to the jury is a question of law. Collins v. Itoh (1972), 160 Mont. 461, 472, 503 P.2d 36, 42 (citation omitted). We review a district court’s conclusion of law to determine whether the court’s interpretation of the law is correct. Werre, 913 P.2d at 631.

The State premises its argument that the survival action should not have gone to the jury on Starkenburg’s failure to introduce medical evidence as to the cause or time of Kimberly’s death; it points out that no testimony was presented regarding whether the gurgling noises April heard from Kimberly after Kimberly was shot the second time represented a sign of life. Accordingly, the State argues that “[t]here was simply no evidence that Kim Starkenburg lived for any appreciable period of time after she was shot.” We disagree.

The record contains evidence that Kimberly remained kneeling beside Brenda and April after Corliss shot her and while he shot Brenda and April. Corliss then shot Kimberly a second time and she fell to the floor. Corliss subsequently fled from Farrington’s residence and, when he had gone, April went to Kimberly’s aid. According to April, she could hear gurgling sounds from Kimberly which sounded “like she was trying to breathe, catch her breath.”

Starkenburg’s evidence in support of the survival action and the length of time Kimberly survived was not particularly strong and the jury could well have chosen to reject it. The evidence was sufficient, however, to support a finding that Kimberly’s death was not instantaneous and that she survived for more than a few seconds. See Burns, 313 R2d at 1047; Dillon, 100 P. at 963.

Moreover, the State cites to no authority under which a plaintiff in a survival action must present medical evidence to prove that death was not instantaneous or that the decedent survived for an appreciable amount of time. While the State correctly observes that, in Stephens, there was medical evidence that the decedent lived for a few seconds to a few minutes (see Stephens, 503 P.2d at 670), nothing in Stephens requires, or even suggests, that evidence regarding the length of time between injury and death must be expert medical testimony.

We hold that the District Court did not err in concluding that there was sufficient evidence to submit Kimberly’s survival action to the jury and in denying the State’s motion for a directed verdict.

Jury Instruction

The State argues that the District Court erred in instructing the jury on the survival action. As previously stated, a district court has discretion in instructing the jury and we will not reverse the court on the basis of alleged instructional errors absent an abuse of discretion. Werre, 913 P.2d at 635 (citation omitted).

Instruction No. 20, as given by the District Court to the jury, provides:

If you find that Kimberly Starkenburg’s death was not instantaneous, your award to her estate should include the present value of her reasonable earnings after the date of death during the remainder of her life expectancy; and reasonable compensation for decedent’s conscious mental and physical pain and suffering in the interval between injury and death.

The State objected to the giving of any instruction at all on the survival action, arguing that it was error “to instruct the jury on a survivorship action for [Kimberly’s] estate where there is no credible evidence within the record of this case to allow [a] survivorship action to go to the jury.” In other words, the State’s objection mirrored the basis for its motion for a directed verdict, which the District Court previously had denied. We concluded above that there was sufficient evidence of record to submit the survival action to the jury. For the same reason, we conclude that the District Court did not abuse its discretion in giving Instruction No. 20 over the State’s objection.

The State subsequently advanced two objections to the substance of Instruction No. 20, one in the District Court and one in this Court on appeal. The additional objection to the instruction in the District Court was made after the jury had been instructed, but before deliberations began. The State’s argument was, at best, confusing and is susceptible of two interpretations. The State may have been arguing that the question of whether death was instantaneous was a threshold legal question for the trial court; alternatively, it may have been arguing that the jury was required to find affirmatively that Kimberly “lived for an appreciable amount of time” rather than to find, in the language of Instruction No. 20, that Kimberly’s “death was not instantaneous.” On appeal, the State argues that Instruction No. 20 was erroneous in two respects relating to Starkenburg’s burden of proof on the survival action.

We need not address the timeliness of the State’s substantive objection to the instruction in the District Court after the jury had been instructed. We also need not concern ourselves with attempting to ascertain the precise nature of that objection or whether any authority exists in support of the objection regardless of which way it is read. Finally, we need not resolve whether the State’s burden of proof contentions on appeal with regard to Instruction No. 20 constitute a change in theory on appeal or an issue raised for the first time on appeal.

Rule 51, M.R.Civ.R, provides that “[n]o party may assign as error the failure to instruct on any point of law unless that party offers an instruction thereon.” Here, the essence of the State’s substantive objections in the District Court and this Court is that the trial court should have instructed the jury that it was necessary to find that Kimberly lived an appreciable amount of time before damages could be awarded on the survival claim. The State did not propose an instruction on this point, however; indeed, it did not propose any instructions relating to the survival action. Thus, it cannot assign as error the District Court’s failure to instruct specifically on the “appreciable amount of time” element of a survival action. See Werre, 913 P.2d at 636.

The State maintains that Rule 51, M.R.Civ.R, does not preclude it from asserting substantive errors relating to Instruction No. 20 because of the timing of instruction-related matters in the District Court. It states that it did not have an opportunity to offer instructions because the court only decided on the final day of trial to give a survival instruction and, at the time the court advised counsel of the substance of that instruction, the instruction was not available in written form for review. Based on the record before us, we reject the State’s effort to avoid the application of the Rule 51, M.R.Civ.R, bar.

The trial of this case was scheduled for August 7, 1995. On July 21,1995, the District Court advised the parties that proposed instructions were to be submitted as soon as possible. Starkenburg submitted proposed instruction nos. 1 through 37 on July 20,1995; the State filed proposed instruction nos. 1 through 28 on the same day. Thereafter, and through August 16, the parties submitted additional proposed instructions.

Starkenburg’s proposed instruction no. 37, submitted on July 20, 1995, was a proposed instruction on damages in the event the jury had found for plaintiffs on the question of liability. With regard to the survival action, that proposed instruction provided as follows:

(4) Your award should include reasonable compensation to decedent’s estate for:
reasonable compensation for damages suffered by decedent if you find death was not instantaneous.

(Emphasis added.) The cited source for the entire proposed instruction was Montana Pattern Jury Instructions (MPI) 25.20 through 25.25 (Civil). The quoted portion of Starkenburg’s proposed instruction no. 37 is, in fact, a verbatim reiteration of MPI 25.25, captioned “Damages — Survival Action.” Thus, as of July 20,1995, the State knew, or should have known, that the “not instantaneous” language was being proposed with regard to the survival action; indeed, the State should have known that the language was taken directly from the MPI. Notwithstanding the content of this proposed instruction, the State did not submit a supplemental proposed instruction containing the “appreciable amount of time” language with others it filed on August 14, 1995.

In addition, the District Court and the parties began settling instructions informally on the evening before the final day of trial; the “not instantaneous” proposed instruction was before the court and the State at that time. Prior to convening court the following morning, the District Court ruled on pending motions and, as the State correctly maintains, advised the parties that it was revising the proposed instruction to add a clarification that, if the jury found that Kimberly’s death was not instantaneous, it should include various elements of damages in its award to her estate. While the revised instruction was not available in written form for review, it is clear from our brief summary of the record that the “not instantaneous” language was not a new addition which prevented the State from proposing instructions on the issue. Indeed, Instruction No. 20, as given to the jury, provided in pertinent part:

If you find that Kimberly Starkenburg’s death was not instantaneous, your award to her estate should include [various elements of damages].

(Emphasis added.) This language is a mere reordering of the language contained in Starkenburg’s proposed instruction no. 37 to clarify that the jury could not award damages in the survival action unless it had first determined that death was not instantaneous.

The State’s final argument regarding its failure to offer a proposed instruction countering the “not instantaneous” language is that the District Court only decided on the final day of trial to instruct on the survival action; it seems to suggest that it was caught unaware for purposes of applying Rule 51, M.R.Civ.R, because the District Court did not rule on its pending motion for a directed verdict on the survival action until that day. This argument is entirely without merit. Neither the State nor any other party can fail to offer proposed . instructions on a pleaded claim in the hopes of obtaining a directed verdict and then, after such a motion is denied, bootstrap itself around application of Rule 51, M.R.Civ.R On this record, it is clear that Rule 51, M.R.Civ.R, bars the State from asserting error regarding the substance of Instruction No. 20. Accordingly, we hold that the District Court did not abuse its discretion in instructing the jury on the survival action.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, TRIEWEILER, LEAPHART and DISTRICT JUDGE McLEAN, sitting for JUSTICE HUNT concur.


author: CHIEF JUSTICE TURNAGE

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. CHRISTOPHER GREYWATER, Defendant and Appellant.
    No. 96-135.
    Submitted on Briefs November 14, 1996.
    Decided January 2, 1997.
    As Modified on Denial of Rehearing January 30, 1997.
    54 St.Rep. 16.
    282 Mont. 28.
    939 P.2d 975.

      See C.J.S. Criminal Law § 456.
    For Appellant: William F. Hooks, Appellate Defender, Helena.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General, Helena; Dennis Paxinos, County Attorney; John Kennedy, Deputy County Attorney, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

A jury in the Thirteenth Judicial District, Yellowstone County, found Christopher Greywater guilty of robbery. Greywater appeals. We affirm.

Greywater raises two issues on appeal.

1. Did the District Court err when it refused Greywater’s proposed instruction that theft is a lesser included offense of robbery?

2. Did the District Court err when it refused to consider a motion in limine to exclude an eyewitness identification of Greywater?

FACTS

On April 3, 1995, at about midnight, Darrell Senner was parked in downtown Billings, Montana. He was in town on business and had $250 in his billfold, including two $100 bills. As Senner sat in his van, a male wearing a black and gray sweater approached and asked for a smoke. Senner responded that he did not smoke.

The man, later identified by Senner at trial as Christopher Grey-water, opened the van door and hit Senner in the head. Greywater jumped on top of Senner and struck him on the head and face. He then spit on Senner and yelled, “You know what the f— I want.” Senner handed Greywater his billfold. Greywater removed the money and ran. Senner followed Greywater and two other men down an alley. After emerging from the alley, Senner saw a police car and approached the officer sitting inside.

Senner spoke with Billings Police Officer Sandra Leonard. He described his assailant as a male Native American wearing a black and gray sweater, accompanied by two other Native Americans. Officer Leonard radioed dispatch with the description. After Officer Leonard verified that Senner was staying at the War Bonnet Inn, she left.

Billings Police Officer James Garten was dispatched to the downtown area. There, he observed three men walking down the street near where the robbery had occurred. One was wearing a black and gray sweater. Billings Police Officer Jeff Chartier also noticed the same three men, one of whom was wearing a sweater similar to that described by dispatch. The two officers stopped their vehicles behind the three men, exited, drew their weapons, and ordered the men to the ground. Christopher Greywater was later identified as one of the three suspects. He was wearing a black and gray sweater.

As Senner was driving to his motel, he observed several handcuffed individuals lying facedown on the sidewalk. He recognized one as wearing the sweater worn by the individual who had robbed him.

The police conducted a pat-down search of Greywater. Inside his pocket they found a large amount of cash, including a $100 bill. Two twelve packs of beer and a bag containing a bottle of alcohol were lying next to him. Because the alcohol was unopened, Officer Leonard suspected that it had been recently purchased. He entered a nearby bar and spoke with James Steinmetz.

Steinmetz bartended at the Empire Bar on April 2 and 3,1995. He testified that at about closing time, Greywater entered the bar and purchased a case of beer and a bottle of whiskey. Greywater paid for the alcohol with a $100 bill, the only $100 bill Steinmetz had seen that evening.

Steinmetz had seen Greywater inside the Empire Bar earlier that evening. When Greywater entered after 1 a.m., Steinmetz testified that Greywater was excited and in a much better mood than he had been previously. After purchasing the alcohol, Greywater and two other individuals left the bar in a hurry. Steinmetz testified that the black and gray sweater, which the police seized after Greywater’s arrest, was of a similar color and design as the one Greywater had been wearing when he entered the bar.

Greywater and the two other suspects were taken into custody, placed in separate police cars, and driven to the War Bonnet Inn. There, under a lighted canopy near the motel entrance, Officer Gartner asked Senner if he recognized any of them. Senner looked into the cars containing the other two suspects but made no identification. He then looked into the third police car and positively identified Greywater as the individual who had robbed him.

Greywater was charged by information with robbery in violation of § 45-5-401(l)(a), MCA. He pleaded not guilty. Following a jury trial, he was found guilty of robbery and sentenced to fifteen years at the Montana State Prison. Greywater appeals.

DISCUSSION

1. Did the District Court err when it refused Greywater’s proposed instruction that theft is a lesser included offense of robbery?

During settlement of jury instructions, Greywater offered a proposed instruction that misdemeanor theft is a lesser included offense of robbery, citing § 46-16-602, MCA (1989), as authority. The State objected, citing State v. Kills On Top (1990), 243 Mont. 56, 793 P.2d 1273, and State v. Albrecht (1990), 242 Mont. 403, 791 P.2d 760. The District Court refused Greywater’s proposed instruction by applying the “same elements” test in Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. The court then gave the following instructions, offered by the State and accepted without objection by Greywater, regarding the offense of robbery:

Instruction No. 6
A person commits the offense of robbery (felony) if, in the course of committing a theft he inflicts bodily injury upon another.
Instruction No. 7
To convict the defendant of the charge of robbery (felony), the State must prove the following elements:
1. That the defendant committed theft; and
2. That the defendant while so doing inflicted bodily injury upon Douglas Senner; and
3. That the defendant acted purposely or knowingly. ...
Instruction No. 10
A person commits the offense of theft if he purposely or knowingly obtains or exerts unauthorized control over property of the owner, and has the purpose of depriving the owner of the property.

Greywater asserts that the court erred as a matter of law when it refused to instruct the jury that theft is a lesser included offense of robbery.

A criminal defendant is entitled to a requested lesser included offense instruction where, based on the evidence, the jury rationally could be warranted in convicting on the lesser offense and acquitting on the greater offense. Section 46-16-607(2), MCA; State v. Smith (1996), 276 Mont. 434, 443, 916 P.2d 773, 778. Therefore, we must first determine whether, as a matter of law, theft is a lesser included offense of robbery. If so, we must then determine whether Greywater’s proposed jury instruction was supported by the evidence. Smith, 916 P.2d at 778.

This Court has long employed the Blockburger test to determine what constitutes a lesser included offense. The test provides:

[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not....”

Blockburger, 284 U.S. at 304, 52 S.Ct. at 182. Iannelli v. United States (1975), 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1294 n. 17, 43 L.Ed.2d 616, 627 n. 17, further explained the Blockburger test, stating:

If each requires proof of a fact that the other does not, the Block-burger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.

Greywater argues that although this Court used the Blockburger test in State v. Madera (1983), 206 Mont. 140, 670 P.2d 552, upon whichAlbrecht and Kills On Top were decided, to determine that theft is not a lesser included offense of robbery, that Madera applies to double jeopardy issues, not to jury instructions. He suggests that in the context of lesser included offense jury instructions, the focus of the Blockburger test should not be limited to a comparison of the statutory elements, but instead should include an inquiry into the facts adduced at trial. We disagree.

In Madera, the defendants were charged and convicted of both felony theft and robbery. We held that prosecution for both offenses did not violate double jeopardy, concluding that felony theft was not a lesser included offense within the charge of robbery under Block-burger because felony theft required proof that the value of the property taken exceeded a certain dollar amount, an element not required for robbery. Madera, 670 P.2d at 557-58.

In Albrecht, the defendant argued that the trial court erred by refusing to instruct the jury that theft is a lesser included offense of robbery. We recognized that Madera involved a double jeopardy issue, not a jury instruction. Albrecht, 791 P.2d at 762. However, we refused to deviate from the Blockburger test to determine whether theft is a lesser included offense of robbery in the context of jury instructions.

We have ruled that theft is not a lesser-included offense of robbery, Madera, 670 P.2d at 558, albeit for different reasoning.... Not only does theft require an additional element of proof regarding value, our statutes specify that commission of theft is not required for commission of a robbery. Section 45-5-401, MCA, requires only that the actor “be in the course of committing the theft.” Under the statute, in order for a robbery charge to adhere, a person does not actually have to complete the theft but only be in the course of committing the theft.

Albrecht, 791 P.2d at 763.

We also noted that the Criminal Law Commission Comments to § 45-5-401, MCA, illustrate that theft is not a lesser included offense of robbery:

Common-law robbery was theft of property from the person or in the presence of the victim by force or by putting him in fear either of immediate bodily injury or of certain other grievous harms. [Section 45-5-401, MCA] does not explicitly include the traditional basis for classifying robbery as taking property from the person or in the presence of a person, but approaches the crime as one of immediate danger to the person and relies on the condition of violence or threatened violence to distinguish the crime from ordinary theft. The gist of the offense is taking by force or threat of force.
[Section 45-5-401, MCA] would apply where property was not taken from the person or from his presence. For example, an offender might threaten to shoot the victim in order to compel him to telephone directions for the disposition of property elsewhere. Further, it is immaterial whether property is or is not obtained. This seems compatible with the theory of treating robbery as an offense against the person rather than against property. Hence, a completed robbery may occur even though the crime is interrupted before the accused obtained the goods, or if the victim had no property to hand over[.]

Albrecht, 791 P.2d at 763, citing Criminal Law Commission Comments, § 45-5-401, MCA.

In Kills On Top, the defendant similarly claimed that theft was a lesser included offense of robbery for purposes of jury instructions. We disagreed and reiterated the holding of Albrecht. Kills On Top, 793 P.2d at 1297.

Albrecht is consistent with numerous cases in which this Court has employed the Blockburger test to determine whether one offense is a lesser included offense of another in the context of jury instructions. See State v. Steffes (1994), 269 Mont. 214, 887 P.2d 1196 (endangering the welfare of children and deviate sexual conduct); State v. Fisch (1994), 266 Mont. 520, 881 P.2d 626 (negligent endangerment and aggravated assault); State v. Arlington (1994), 265 Mont. 127, 875 P.2d 307 (felony assault and aggravated assault); State v. Long (1986), 223 Mont. 502, 726 P.2d 1364 (misdemeanor assault and sexual assault); State v. Gray (1983), 207 Mont. 261, 673 P.2d 1262 (unsworn falsification and criminal mischief); and State v. Ritchson (1981), 193 Mont. 112, 630 P.2d 234 (aggravated assault and robbery).

This Court has previously focused on the statutory elements, not the facts of a given case, to decide what constitutes a lesser included offense for purposes of jury instructions. Steffes, 887 P.2d at 1207. We look to the statutory elements of the respective crimes to determine if each offense requires proof of a fact which the other does not to determine if there is a lesser included offense. Madera, 670 P.2d at 558.

The offense of robbery is defined by § 45-5-401(l)(a), MCA, as follows: “(1) A person commits the offense of robbery if in the course of committing a theft he: (a) inflicts bodily injury upon another.” The applicable elements of theft are: (1) purposely or knowingly; (2) obtaining or exerting unauthorized control; (3) over the property of the owner; (4) with the purpose of depriving the owner of the property. Section 45-6-301(l)(a), MCA.

Robbery and theft each require proof of an additional fact that the other does not. A conviction of robbery under § 45-5-40l(l)(a), MCA, requires the infliction of bodily injury upon another, but does not require the completed act of theft as an element. Robbery requires that the person “be in the course of committing the theft.” Section 45-5-401, MCA. The offense of theft requires proof of an additional fact — that the theft was completed. Because robbery requires proof of at least one element that is not needed to establish the offense of theft, theft is not a lesser included offense of robbery. See Albrecht, 791 P.2d at 762-63.

Montana statutes, Criminal Law Commission Comments, and case law support the District Court’s conclusion that theft is not a lesser included offense of robbery. We hold that the District Court correctly instructed the jury on the law applicable to Greywater’s case and properly refused his proposed jury instruction that theft is a lesser included offense of robbery. Because we so hold, we do not address whether there was sufficient evidence for a jury to convict Greywater of theft.

Greywater also argues that the Blockburger test used by the District Court is inconsistent with the statutory definition of “included offense” contained at § 46-1-202(8), MCA. He claims that the statutory definition of included offense is broader than the Blockburger test.

When Greywater submitted his proposed jury instruction that misdemeanor theft is a lesser included offense of robbery, he did so under the purported authority of § 46-16-602, MCA (1989). He now argues that the District Court refused his proposed instruction contrary to the statutory definition of “included offense” contained at § 46-1-202(8), MCA. Greywater did not offer his proposed instruction pursuant to § 46-1-202(8), MCA, at the district court level. A party may not change his theory on appeal from that advanced in the district court. Fisch, 881 P.2d at 629. We decline to address the merits of this argument.

2. Did the District Court err when it refused to consider a motion in limine to exclude an eyewitness identification of Greywater?

Five days before trial, the defense moved in limine to prevent “introduction into evidence any testimony concerning eye witness identification of the defendant,” on the ground that such testimony violated Greywater’s Fifth Amendment due process rights. The defense argued that Senner’s identification was suggestive and subject to possible misidentification.

On the day of trial, counsel discussed Greywater’s motion in limine. The State opposed the motion, arguing that it was untimely. Greywater’s public defender agreed, but asked the court to excuse the delay for “good cause” because of his overwhelming caseload and because Greywater’s constitutional rights were at stake. The court declined to consider the motion in limine because it was untimely, citing State v. Hart (1982), 200 Mont. 185, 650 P.2d 768. The court also determined that the motion was covered under § 46-13-101, MCA, and found no good cause for it to be raised.

In Hart, the defendant waited until the day of trial to orally move to suppress police testimony concerning his pre-Miranda statements. Section 46-13-301, MCA, required ten days’ notice and a written motion to suppress. The trial court denied the motion as untimely. We affirmed, noting that the defendant was aware from the time of his arrest that he had made damaging statements, but did not move to suppress them until the day of trial after the jury had been seated. Hart, 650 P.2d at 772.

Section 46-13-101, MCA, provides:

(1) Except for good cause shown, any defense, objection, or request that is capable of determination without trial of the general issue must be raised at or before the omnibus hearing unless provided by Title 46.
(2) Failure of a party to raise defenses or objections or to make requests that must be made prior to trial, at the time set by the court, constitutes a waiver of the defense, objection, or request.
(3) The court, for cause shown, may grant relief from any waiver provided by this section[.]

The State argues that § 46-13-101, MCA, required Greywater’s motion in limine to be raised at or before his omnibus hearing and that the court’s decision not to consider the untimely motion is supported by Hart, 650 P.2d at 768. Greywater suggests that his counsel’s crowded trial calendar provided good cause for the court to consider his otherwise untimely motion in limine. He argues that the court’s refusal to consider his motion was an abuse of discretion and limited his ability to pursue the identification issue, his only available defense.

(4) The standard of review for a denial of a motion to suppress is whether the court’s findings of fact are clearly erroneous, and whether those findings were correctly applied as a matter of law. State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021. In this case, the District Court dismissed Greywater’s motion in limine as untimely and as lacking good cause. Therefore, we determine whether the court’s conclusions of law were correct as a matter of law. Williams, 904 P.2d at 1021.

A motion in limine to prevent an in-court identification is essentially a motion to suppress and must be filed within the time limits imposed by § 46-13-301, MCA (1989). See Hart, 650 P.2d at 771-72. We have consistently upheld a district court’s denial of a defendant’s untimely motion to suppress. State v. Hall (1979), 183 Mont. 511, 514, 600 P.2d 1180, 1182; State v. Briner (1977), 173 Mont. 185, 189-90, 567 P.2d 35, 37-38.

Hart, Hall, and Briner were decided under the previous version of § 46-13-301, MCA (1989) and § 95-1806, RCM (1947), which required notice of a motion to suppress to be given at least ten days before trial, unless good cause was shown. In 1991, § 46-13-301, MCA, was amended to require a motion to suppress to be raised at or before the omnibus hearing. See 1991 Mont. Laws, Ch. 800, §§ 168,173. The purpose of the omnibus hearing is to encourage parties to “expedite the procedures leadingup to the trial.” Section 46-13-110(2), MCA. The holdings of Hart, Hall, and Briner, as applied to the good cause exception of § 46-13-301, MCA (1989) and § 95-1806, RCM (1947), are equally applicable to the good cause exception contained at § 46-13-101, MCA.

Greywater’s omnibus hearing occurred over three months prior to trial. At the omnibus hearing, neither party indicated that identification would be a trial issue. Greywater’s omnibus form is marked “n/a” (not applicable) in response to “Motions Requiring Separate Hearing.” On the day of trial, the judge explained to both parties that he had tried to contact them the week before to determine if there were “any significant issues related to this case.” When the judge called the public defender’s office, he was informed by one of the attorneys who had some knowledge about the case that “it would be a short trial and there are no major issues that I know about.” We conclude that the trial judge properly refused to consider the public defender’s busy caseload as good cause.

Greywater was aware from the time of his arrest that the State’s case relied in part on Senner’s identification of him in the motel parking lot. Nevertheless, he did not submit his motion in limine until October 5,1995, nearly six months after he was charged with robbery, and five days before trial.

Greywater did not comply with § 46-13-101, MCA, and cannot demonstrate good cause for his untimely motion. Given the requirements of § 46-13-101, MCA, the case law interpreting its predecessor statutes, and the overall purpose of the omnibus hearing, the District Court correctly determined as a matter of law that Greywater’s motion in limine was untimely and was not subject to a good cause exception. We hold that the District Court properly refused to consider Greywater’s motion in limine.

Affirmed.

JUSTICES ERDMANN, GRAY, HUNT and LEAPHART concur.


text:
    THOMAS JAY HARWOOD, ELSIE RUBY HARWOOD and THOMAS JOSEPH ARKINSON, Plaintiffs and Appellants, v. GLACIER ELECTRIC COOPERATIVE, INC., a Montana Utility Company, Defendant and Respondent.
    Ordered January 30, 1997
    54 St.Rep. 89.
    282 Mont. 38.
    939 P.2d 981.
    See C.J.S. Arbitration § 161.
   OPINION AND ORDER

Pending before the Court is the appellants’ motion, stipulated to by respondent, to allow the parties to select their own mediator and extend the time for submission of their appellants’ brief until seventy-five days after the Mediator’s Report is received by this Court.

On November 21, 1996, the Harwoods and Arkinson filed their notice of appeal with this Court. Pursuant to Rule 54, M.RApp.P., the parties may jointly select a mediator within fifteen days of the filing of the notice of appeal. In the event that the parties donotjointly select a mediator within the time provided, the Ríale provides that one will be assigned by the Clerk of the Supreme Court. On December 10, 1996, in accordance with Rule 54, M.RApp.P, the Clerk of the Supreme Court appointed E. Eugene Atherton, Esq., as mediator for the appeal as a result of the parties having faded to jointly and timely select a mediator. The order appointing a mediator also stated that the time periods, as set forth in Rule 54(e), M.R.App.P., shall run from the date of the order.

The mandatory appellate alternative dispute resolution procedures set forth in Rule 54, M.RApp.P., have been in effect since October 1,1996. The purpose of these new provisions is to provide the parties with another opportunity to resolve their dispute without incurring the significant costs and time involved in the ordinary appeal process, as well as reduce this Court’s caseload. To accomplish these goals the new provisions were designed to be, and are, self-executing. Otherwise, the caseload of the Court will not decrease, but may very well increase as the Court considers and nales upon motions which address the mediation process, such as motions to opt out of the mediation requirements, motions for substitution of mediators, extensions of time to file statements of position, and the myriad of other forms of relief that counsel may seek. Correspondingly, the parties will incoar additional expense on appeal during this process. The result will be self-defeating and thwart the goals of the appellate mediation program. Consequently, this Court will not insert itself in the process except under omusual or extraordinary circoomstances.

The pending motion from the Harwoods and Arkinson filed on January 22, 1997, requesting that this Court allow the parties to select their own mediator is not permitted under the provisions of Rule 54, M.R.App.P. Moreover, the parties could have achieved the result sought by this motion by jointly selecting a mediator within fifteen days of the filing of the notice of appeal. They did not do so and the mediator for this case was duly appointed. Therefore,

IT IS HEREBY ORDERED:

1. The motion to allow the parties to select their own mediator is DENIED.

2. The motion to extend the time for filing of appellants’ brief is DENIED.

3. The time periods as set forth in Rule 54(e), M.R.App.P., shall run from the date of this order.

4. The Clerk of Court is directed to mail a true and correct copy of this order to all parties of record.

DATED this 30th day of January, 1997.

/S/J. A. TURNAGE, Chief Justice

/S/ JIM REGNIER, Justice

/S/ TERRY N. TRIEWEILER, Justice

/S/ WILLIAM E. HUNT, SR., Justice

/S/ W. WILLIAM LEAPHART, Justice

/S/ KARLA M. GRAY, Justice

JUSTICE NELSON has recused himself from this case.


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TODD ANDERSON, Defendant and Appellant.
    No. 95-391.
    Submitted on Briefs January 23, 1997.
    Decided March 18, 1997.
    54 St.Rep. 232.
    282 Mont. 41.
    934 P.2d 1037.
    See C.J.S. Criminal Law § 1553.

      For Appellant: Roberta A.Drew; Deputy Public Defender; Billings.
    For Respondent: Hon. Joseph P. Mazurek; Attorney General; Tammy Plubell; Assistant Attorney General; Helena; Dennis Paxinos; Yellowstone County Attorney; Marcia Good Sept; Deputy County Attorney; Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The defendant, Todd Anderson, was charged by information, filed in the District Court for the Thirteenth Judicial District in Yellowstone County, with one count of sexual abuse of children, a felony, in violation of § 45-5-625, MCA, and four counts of sexual intercourse without consent, felonies, in violation of § 45-5-503, MCA. He pled guilty to all five counts. At the sentencing hearing, the District Court determined that, pursuant to § 46-18-104(2), MCA (1993), Anderson committed a “crime of violence.” He appeals the judgment of the District Court. We affirm the District Court.

The issue on appeal is whether the District Court erred when it determined that, pursuant to § 46-18-104(2), MCA (1993), Anderson committed a “crime of violence.”

FACTUAL BACKGROUND

On January 18, 1995, Todd Anderson pled guilty to one count of sexual abuse of children and four counts of sexual intercourse without consent. He admitted that, on numerous occasions during the preceding years, he sexually molested B.S., his stepdaughter.

Prior to the sentencing hearing, Dr. Norm Honeyman conducted a sexual offender evaluation. His report stated, in part:

[Anderson] set up situations, whereby [B.S.] had to give him sexual favors to be able to do things a child might want to do or he would keep her away from friends, keep her in her room or ground her to the house.

On May 17, 1995, the District Court sentenced Anderson to the Montana State Prison for: (1) a term of thirty years, with ten years suspended, for the conviction of sexual abuse of children; and (2) a term of twenty years for each conviction of sexual intercourse without consent, to run concurrently to each other and the thirty-year sentence. The District Court also found, pursuant to § 46-18-104(2), MCA (1993), that Anderson committed a “crime of violence” and that community-based punishment alternatives to incarceration are not appropriate.

Anderson filed a notice of appeal on July 12,1995. He asserted that the District Court erred when it failed to articulate reasons in support of its finding that he committed a “crime of violence.” Therefore, on February 22, 1996, we remanded this case and ordered the District Court to enter a memorandum in support of sentence.

In its memorandum in support of sentence, the District Court made the following determination:

In addition, [Anderson] stated to Dr. Honeyman that [Anderson] would confine B.S. to her room or ground her if she was unwilling to perform a sexual favor. Subjecting B.S. to physical confinement constitutes a threat by [Anderson].

(Emphasis added.) On that basis, the District Court concluded that, pursuant to §§ 45-2-101(68)(b) and 46-18-104(2)(c), MCA (1993), Anderson committed a “crime of violence.”

DISCUSSION

Did the District Court err when it determined that, pursuant to § 46-18-104(2), MCA (1993), Anderson committed a “crime of violence”?

We review a district court’s legal conclusions to determine whether they are correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

In Montana, a “crime of violence” is statutorily defined as follows: (2) “Crime of violence” means:
(a) a crime in which an offender uses or possesses and threatens to use a deadly weapon during the commission or attempted commission of a crime;
(b) a crime in which the offender causes a serious bodily injury or death to a person other than himself; or
(c) any sexual offense in which the offender causes bodily injury to the victim or uses threat, intimidation, or force against the victim.

Section 46-18-104(2), MCA (1993) (emphasis added).

Additionally, the term “threat” is statutorily defined, in relevant part, as follows:

(68) “Threat” means a menace, however communicated, to:
(b) subject any person to physical confinement or restraint....

Section 45-2-101(68)(b), MCA (1993).

On appeal, Anderson maintains that the District Court erred when it determined that he committed a “crime of violence.” Specifically, he makes the following argument: (1) there is no evidence in the record to establish that he ever physically restrained B.S.; and (2) therefore, he did not use a “threat,” as defined by § 45-2-101(68)(b), MCA(1993), during the commission of his crimes. Accordingly, he contends that he did not commit a “crime of violence” pursuant to § 46-18-104(2), MCA (1993).

The State did not allege, and the District Court did not find that Anderson physically restrained B.S. during the commission of his crimes. However, the definition of a “threat” in § 45-2-101(68)(b), MCA (1993), also refers, in the disjunctive, to a menace to physically confine.

The record — specifically, Dr. Honeyman’s sexual offender evaluation — establishes that Anderson would threaten to “keep [B.S.] away from friends, keep her in her room or ground her to the house” in order to compel her to perform sexual favors. On that basis, we conclude that Anderson menaced B.S. with “physical confinement” and that, therefore, pursuant to §§ 45-2-101(68)(b) and 46-18-104(2)(c), MCA (1993), he committed a “crime of violence.”

Accordingly, we hold that the District Court did not err when it held that, pursuant to § 46-18-104(2), MCA(1993), Anderson committed a “crime of violence.” The judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, REGNIER and GRAY concur.