text:
    STATE OF MONTANA, Plaintiff and Respondent, v. STEVEN L. LITTLE, Defendant and Appellant.
    No. 92-560.
    Submitted on Briefs August 19, 1993.
    Decided October 4, 1993.
    50 St.Rep. 1124.
    260 Mont. 460.
    861 P.2d 154.

      For Defendant and Appellant: Teresa McCann O’Connor, O’Connor & O’Connor, Billings.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Patricia J. Jordon, Ass’t Attorney General, Helena; Dennis J. Paxinos, Yellowstone County Attorney, Marcia Good Sept and Dale R. Mrkich, Deputy County Attorneys, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

Steven L. Little appeals from pre-trial and evidentiary rulings and a jury verdict entered in the Thirteenth Judicial District Court, Yellowstone County, finding him guilty of three counts of sexual intercourse without consent and one count of sexual assault. We affirm.

We restate the issues on appeal as follows:

1) Did the District Court err in denying Little’s “investigatory” motions?

2) Did the District Court err in denying Little’s motions to dismiss the information?

3) Did the District Court err in admitting evidence of other crimes, wrongs or acts?

4) Did the District Court err in excluding evidence regarding the “motorcycle incident?”

5) Did the District Court err in refusing to admit two photographs of the scene of the Flathead Lake incident?

6) Is the evidence sufficient to support the jury’s verdict?

On August 7, 1991, an information was filed against Steve Little (Little) alleging three counts of sexual intercourse without consent in violation of § 45-5-503, MCA, and one count of sexual assault in violation of § 45-5-502, MCA. The first two counts alleged that in 1987-88, Little knowingly had sexual intercourse without consent with D.H. (older victim). Count Three alleged that on or about 1990, Little had sexual intercourse without consent with D.H. (younger victim), while Count Four alleged that Little knowingly had subj ected the younger victim to sexual contact without her consent. The victims were Little’s stepdaughters. Little was subsequently arrested and released on bond.

On November 21 And 22, 1991, Little filed numerous motions, including three motions to dismiss the information, motions to compel medical and psychological evaluations on the victims, a motion for additional discovery of the Department of Family Services’ (DFS) files regarding the victims, a motion for disclosure of the victims’ counselor’s notes, and a motion for a polygraph examination of the older victim. He asserted that the motions were necessary to remedy the State’s lack of investigation of the charges against him.

In response to one of Little’s motions to dismiss, the State was granted leave to file an amended information, which detailed two specific acts of sexual intercourse without consent involving the older victim and one specific act of both sexual intercourse without consent and sexual assault involving the younger victim. Little then moved to dismiss the amended information.

The District Court denied Little’s motions regarding the psychological, medical and polygraph examinations, counseling notes and DFS files on February 25, 1992. On that date, the court also denied Little’s motions to dismiss the information. One week prior to trial, the State submitted notice of its intent to introduce evidence of “other crimes” and alleged that, in Flathead County, Little had attempted sexual intercourse with the older victim and had performed oral sex on the older victim without her consent.

After a three-day trial, the jury found Little guilty on all four counts. On August 26, 1992, the District Court sentenced Little to terms of imprisonment totalling forty-five consecutive years, with ten years suspended. Little appeals.

Did the District Court err in denying Little’s “investigatory” motions?

As stated above, Little filed several motions in support of his general allegation that the State had not sufficiently investigated the victims’ allegations. On appeal, Little again broadly asserts that the State did not sufficiently investigate the allegations made against him; he urges this Court to require prosecutors and law enforcement to “search for and weigh pieces of information which tend to show innocence as well as those which tend to show guilt.” He cites no authority for imposing this requirement as a matter of law nor does he identity the bases for his assertions. In the interest of clarity, we examine Little’s arguments regarding his various “investigatoiy” motions in turn.

DEPARTMENT OF FAMILY SERVICES FILES

Little argued that he should be allowed discovery of the victims’ files held by DFS or, at a minimum, the files should be inspected in camera by the District Court. The State informed the District Court that it knew of no relevant information contained in the DFS files. The District Court denied Little’s requests.

On June 23, 1993, this Court issued an interlocutory appellate order requiring the District Court to conduct an in camera inspection of the victims’ DFS files and enter appropriate findings regarding whether the files contained information relevant to Little’s prosecution. We relied on § 41-3-205, MCA, which provides that DFS records may be disclosed to a court for an in camera inspection if relevant to an issue before it. We concluded that an actual in camera inspection of the DFS files was necessary to complete the record on appeal. On August 6, 1993, the District Court entered an order stating that it had inspected the victims’ DFS files and concluded that they contained no disclosable information. The court forwarded the DFS files to us with its order.

If a district court makes an in camera review of confidential records and concludes that no material information is contained therein (and that conclusion is subject to review on appeal), the defendant’s interest in ensuring a fair trial is protected. See State v. Thiel (1989), 236 Mont. 63, 67, 768 P.2d 343, 345. In Thiel, we quoted with approval the United States Supreme Court’s explanation of the policy underlying this principle:

To allow full disclosure to defense counsel in this type of case would sacrifice unnecessarily the Commonwealth’s compelling interest in protecting its child abuse information. If the ... records were made available to defendants, even through counsel, it could have a seriously adverse effect on Pennsylvania’s efforts to uncover and treat abuse.

Thiel, 768 P.2d at 345, quoting Pennsylvania v. Ritchie (1987), 480 U.S. 39, 60-61, 107 S.Ct. 989, 1003-4, 94 L.Ed.2d 40, 59.

We have reviewed the DFS files and conclude that the District Court properly determined that Little was not entitled to their disclosure. See also State v. Goodwin (1991), 249 Mont. 1, 20-21, 813 P.2d 953, 965. We conclude that the District Court did not err in denying Little’s motion to compel disclosure of the victims’ DFS files.

COUNSELOR’S NOTES

Little also requested discovery of the victims’ counselor’s notes, arguing that they might contain exculpatory evidence. The District Court denied the motion, concluding that Little was not entitled to discovery of the counselor’s notes because the State did not have possession of the notes and did not intend to call the counselor as a witness. Little then subpoenaed the counselor as a witness at trial and, at that point, requested an in camera inspection of the notes by the District Court. The District Court declined to inspect the notes in camera. The counselor testified, in essence, that the notes contained no exculpatory evidence and that she had no information indicating that the girls had fabricated their allegations against Little.

No statutory authority permits or requires a district court to make an in camera inspection of a counselor’s notes and Little cites no other authority requiring disclosure or in camera inspection of the counselor’s notes. In State v. Rhyne (1992), 253 Mont. 513, 524, 833 P.2d 1112, 1119, we held that it was not error for a district court to refuse to examine or turn over counselor’s notes if the counselor was not a witness against the defendant and the counselor’s opinions were not used by the prosecution in preparing the case.

Here, the State did not call the counselor as a witness against Little and did not rely on the counselor’s notes or opinions in preparing the case. Indeed, the prosecutor indicated that the State had not viewed the counselor’s files prior to the trial. We conclude that the District Court did not err in refusing to disclose the victims’ counselor’s notes to Little or in refusing to conduct an in camera inspection of the notes at trial.

PSYCHOLOGICAL EXAMINATIONS

Little argues that he should be allowed to require the victims to submit to a psychiatric examination. It is well-established that a defendant cannot force a child victim of a sexual crime to undergo a psychological evaluation. State v. Crist (1992), 253 Mont. 442, 447, 833 P.2d 1052, 1056; State v. Gilpin (1986), 232 Mont. 56, 67, 756 P.2d 445, 451. Rule 35(a), M.R.Civ.P., allows for a mental or physical examination by a physician only when the mental or physical condition of a party is in controversy. State v. Liddel (1984), 211 Mont. 180, 191, 685 P.2d 918, 924. As was the case in Crist, Gilpin, and Liddel, the victims are witnesses, not parties, to this action.

Little concedes that this Court has held that a defendant cannot compel the psychiatric examination of a victim of a sexual crime. Instead, he argues that the reasoning of State v. Malee, an unpublished opinion and order issued by this Court in 1988, is more applicable to his situation. We do not recognize citations to unpublished opinions.

MEDICAL EXAMINATIONS

Little also moved for production of medical reports or for an order compelling the victims to undergo a medical examination. The District Court denied this motion based primarily on the State’s assertion that it had no medical records to disclose.

For the same reasons that underlie our conclusion regarding the psychological examination, we conclude that a defendant cannot compel a child victim of a sexual offense to undergo an independent medical examination. Goodwin, 813 P.2d at 964. The victims are witnesses, not parties. As we have repeatedly admonished, to hold otherwise would permit the defense to try the victim of the crime and divert the jury’s attention from the primary issue — the guilt or innocence of the defendant. Goodwin, 813 P.2d at 964.

Did the District Court err in denying Little’s motions to dismiss the information?

Little made four motions to dismiss the information filed against him, all of which were withdrawn by Little or denied by the District Court. On appeal, he asserts three separate and independent grounds to support his argument that the information should have been dismissed: (1) the information was not supported by probable cause; (2) the information was not specific regarding the dates of the offenses; and (3) the information was not specific enough to protect him from double jeopardy. We examine each contention in turn.

PROBABLE CAUSE

Section 46-11-201, MCA, which sets forth the statutory requirements for obtaining leave to file an information, provides in pertinent part:

(2) An application must be by affidavit supported by evidence that the judge ... may require. If it appears that there is probable cause to believe that an offense has been committed by the defendant, the judge ... shall grant leave to file the information, otherwise the application is denied.

Little argues that the affidavit filed in support of the information was insufficient because the victims’ allegations were not corroborated. He also contends that, taken as a whole, the entire investigative file did not contain sufficient information to support a probability that he had committed the offenses charged.

An affidavit filed in support of a motion for leave to file an information need only recite facts sufficient to indicate a probability that the defendant committed an offense; it need not demonstrate a prima facie case. State v. Ramstead (1990), 243 Mont. 162, 166, 793 P.2d 802, 804. An information is intended to provide the defendant with notice, not to provide discovery of the State’s evidence. State v. Riley (1982), 199 Mont. 413, 421, 649 P.2d 1273, 1277. Further, a court reviewing an affidavit for probable cause may use common sense and draw permissible inferences; the standards are less stringent than those governing the admissibility of evidence. State v. Miner (1976), 169 Mont. 260, 264, 546 P.2d 252, 255. This probable cause determination will not be reversed absent an abuse of discretion. State v. Buckingham (1989), 240 Mont. 252, 256, 783 P.2d 1331, 1334.

With those standards in mind, we review the affidavit filed in support of the motion for leave to file the information in this case. The crime of sexual intercourse without consent requires that the defendant knowingly had sexual intercourse without consent with another person. Section 45-5-503, MCA. A victim is incapable of consent if she is less than 16 years old. Section 45-5-501(b)(iii), MCA.

Here, the affidavit related that the older victim stated that Little had sexual contact with her beginning in 1987, when she was 15 years old. The sexual contact originally consisted of kissing and fondling but progressed to the insertion of Little’s fingers into her vagina and forced oral intercourse. The affidavit also alleged that the younger victim, who was 11 years old at the time, had stated that Little had inserted his fingers into her vagina. Thus, the affidavit sufficiently indicated a probability that Little had committed the three counts of sexual intercourse without consent.

The affidavit also satisfied the probable cause requirement for the count of sexual assault by alleging that, beginning in early 1990, Little had fondled the younger victim’s breasts and vaginal area and had forced her to fondle his penis. See § 45-5-502, MCA. Lastly, the standards for probable cause with regard to filing an information do not require corroboration of the victims’ allegations; the affidavit filed was sufficient to indicate a probability that Little committed the charged offenses.

We conclude that the District Court did not abuse its discretion in denying Little’s motion to dismiss the information for lack of probable cause.

LACK OF SPECIFICITY OF DATE

The amended information alleged that “on or about 1987-88,” Little had committed sexual intercourse without consent against the older victim (Counts I and II) and “on or about 1990,” Little had committed sexual intercourse without consent and sexual assault against the younger victim (Counts III and IV). Little argues that the information is deficient because the dates of the offenses are not alleged with sufficient particularity to allow him to meaningfully assert the defense of alibi.

The law does not require that the time and place in an information be stated with impossible precision. Riley, 649 P.2d at 1277. Section 46-11-401(1)(c)(iv), MCA, requires that the information “charge the commission of an offense by... stating the time and place of the offense as definitely as can be done.” (emphasis added.) In cases of sexual abuse against children, this Court has declined to impose exacting standards for identifying the dates of the offenses contained in the charging document even where the defense of alibi is asserted. See State v. Clark (1984), 209 Mont. 473, 481-83, 682 P.2d 1339, 1343-45; State v. D.B.S. (1985), 216 Mont. 234, 239-40, 700 P.2d 630, 633-35; and State v. Shaver (1988), 233 Mont. 438, 445-46, 760 P.2d 1230, 1235. In determining whether the dates are alleged with sufficient particularity in these situations, we review whether 1) time is a material ingredient in the offense, and 2) whether a continuing course of conduct is alleged. Clark, 682 P.2d at 1344.

In D.B.S., the information alleged that the defendant had committed a single act of incest sometime during a ten-month period. D.B.S., 700 P.2d at 633. In applying the first element from Clark, we concluded that time was not a material ingredient in the offense of incest, even though the defendant had asserted the defense of alibi. D.B.S., 700 P.2d at 634. Regarding the second element, we stated that when a continuing course of conduct is alleged, further specificity in the information is not required. Even if a continuing course of conduct is not alleged, and a single act of incest is charged over a period of time, the information is not automatically insufficient. D.B.S., 700 P.2d at 634. After surveying the law in other jurisdictions, we concluded in D.B.S. that, because children are less likely to distinguish dates and times with specificity, the fact that the victim cannot set a date for the crime should not be fatal to the State’s case. To hold otherwise would leave the defendant virtually immune from prosecution. D.B.S., 700 P.2d at 634.

The same reasoning applies here. Little’s assertion of the defense of alibi does not make time a material ingredient to the crime of sexual intercourse without consent or sexual assault. See Shaver, 760 P.2d at 1234-35. It is clear, and Little does not challenge, that the time during which the specific acts are alleged to have occurred was when both victims were under the age of sixteen. Thus, he asserts no challenge that relates to time as a material element of the offenses.

We also conclude that the time frame alleged in the information is sufficiently particular under these circumstances. Although the State’s amended information alleged four specific criminal acts instead of a continuing course of conduct, the statements taken from both victims indicate that the defendant repeatedly subjected the children to sexual acts. We do not hold abused children to a standard requiring them to comprehend and remember specific times and dates. Shaver, 760 P.2d at 1235.

Little attempts to distinguish D.B.S. on the grounds that the victim in that case was four years old, and argues that the leniency afforded to such a young child should not be granted to these victims, who were 15 and 11 at the time of the criminal acts. We have previously rejected a similar argument with regard to a twelve-year-old victim, stating that, even though the victim was older than the child in D.B.S., the rationale of D.B.S. was still instructive. Shaver, 760 P.2d at 1235.

We conclude that the information alleged the dates of the offenses with sufficient particularity to inform Little of the general time period in which the offenses occurred. See Shaver, 760 P.2d at 1235.

DOUBLE JEOPARDY

Little’s final argument regarding the sufficiency of the information is that Counts I and II “charge the same statute,” and that Counts III and IV alleged the same course of conduct. He contends, therefore, that the information violates the statutory and constitutional prohibitions against double jeopardy. He concedes that this alleged double jeopardy violation was cured by the time the trial began, but argues that his ability to prepare his defense was hindered by the confusion caused by the information.

We find no merit to this argument. The facts constituting Count I in the Amended Information read:

That the Defendant, STEVE LITTLE, DOB 12-24-47, knowingly had sexual intercourse without consent with D.H., DOB 10-6-72, when she was less than 16 and he was three or more years older, when he inserted his fingers into her vagina ...

The facts constituting Count II read:

That the Defendant, STEVE LITTLE, DOB 12-24-47, knowingly had sexual intercourse without consent with D.H., DOB 10-6-72, when she was less than 16 and he was three or more years older, when he would insert his penis into her mouth ...

The facts constituting Count III of the amended information detail digital penetration against the younger victim, in language similar to that of Count I. Count IV sets forth the facts constituting sexual assault, which are:

That the Defendant, STEVE LITTLE, DOB 12-24-47, knowingly subjected D.H., DOB 11-4-79, to sexual contact without her consent, when she was less than 16 and he was three or more years older, when he fondled her breasts and vaginal area and forced her to fondle his penis ...

The information clearly sets forth four specific and distinct sexual acts which occurred during a specified time period. It is elementary that separate acts can be charged in an information as separate offenses. See §§ 46-11-404 and -410, MCA; State v. Boe (1963), 143 Mont. 141, 145, 388 P.2d 372, 375; State v. Sanderson (1985), 214 Mont. 437, 451, 692 P.2d 479, 487. No double jeopardy violation occurred here.

We hold that the District Court did not err in denying Little’s motions to dismiss the information.

Did the District Court err in admitting evidence of other crimes, wrongs or acts?

In the older victim’s initial statement made July 15, 1991, she referred to an incident in Flathead County where Little had attempted sexual intercourse with her in the family camper while the rest of the family was at the waterslides. She also related an incident where, while picking cherries near Flathead Lake, Little sat her on a stump in the orchard and placed a cherry in her vagina with his tongue. On April 1,1992, three weeks prior to trial, defense counsel interviewed the older victim and she again related the incidents in Flathead County.

On April 13,1992, seven days before the trial began, the State filed notice of its intent to use evidence of other crimes, wrongs or acts, as required by State v. Just (1979), 184 Mont. 262, 602 P.2d 957. The Just notice specified that:

1) During the offense period, the defendant forced sexual intercourse without consent upon victim D.H. DOB 10-6-72 [the older victim] during a family vacation to Flathead Lake, Montana. During the vacation, defendant forced oral intercourse upon victim and and [sic] he attempted to force sexual intercourse upon her. The attempted sexual intercourse occurred in Flathead County, Montana and the forced oral intercourse occurred in either Lake County or Flathead County, Montana.
The Defendant’s attorney learned of these allegations through D.H.’s original statement in the police investigative file. The attorney again heard the allegations from D.H. during her recorded interview which was taken on April 1,1992.
The foregoing evidence is relevant to establish the plan which the defendant had established for the sexual abuse of D.H. and a lack of mistake or accident that the defendant’s actions constituted sexual intercourse without consent.
The District Court admitted the evidence over Little’s objections.

On appeal, Little argues that the one-week notice was not timely and that the acts described in the notice were not sufficiently similar to the crimes charged. In reviewing evidentiary rulings, this Court will not overturn the district court’s determination absent an abuse of discretion. State v. Hage (Mont. 1993), 853 P.2d 1251, 1253, 50 St.Rep. 631, 632.

We have developed extensive procedural and substantive requirements that govern the admission of evidence of other crimes, wrongs or acts in a criminal case. Procedurally, evidence of other crimes may not be received unless there has been written notice to the defendant that such evidence is to be introduced. State v. Howell (1992), 254 Mont. 438, 443, 839 P.2d 87, 90; Gilpin, 756 P.2d at 450. In Gilpin, on the day before trial, the State gave notice of its intent to introduce evidence of prior sexual assaults on a child victim. We determined that the notice must be given before the case is called for trial and, therefore, notice given on the day before trial began was timely. Gilpin, 756 P.2d at 450. Applied to this case, the State’s one-week notice is sufficient.

Little argues that the State’s notice was deficient under State v. Croteau (1991), 248 Mont. 403, 812 P.2d 1251. Croteau lends no support to Little’s argument. In Croteau, the Just notice, given one year before trial, stated that the defendant fondled victim R.B. in Wyoming in 1982 and in Mexico in 1985. Croteau, 812 P.2d at 1252. While testifying, victim R.B. stated that the defendant had fondled him while he spent the night at the defendant’s house; the defense objected that this evidence of a “prior act,” which was neither charged nor included in the Just notice, was improperly admitted. Croteau, 812 P.2d at 1253.

In response, the State asserted that the lack of Just notice was cured when it delivered, on the morning of the trial, a copy of a new statement by victim R.B. in which the incident at the defendant’s house was described. Croteau, 812 P.2d at 1253. We disagreed, concluding that the last minute delivery of victim R.B.’s statement violated the notice requirements of Just. Croteau, 812 P.2d at 1254.

Unlike the defendant in Croteau, Little has been aware of the details of the allegations concerning the Flathead incidents since the outset of the case. As we stated in Croteau, the purpose of the notice requirement is to allow the defendant a reasonable opportunity to prepare to meet the evidence against him. Croteau, 812 P.2d at 1254. Here, Little had ample knowledge of the allegations and sufficient opportunity to respond to the evidence. We conclude that the State’s Just notice was timely.

Little also argues that the admission of the evidence of the other crimes, wrongs or acts violates the substantive requirements of Just because the other crimes, wrongs or acts are not similar to those alleged in the information. To admit evidence of other crimes, wrongs or acts, the “Modified Just Rule” requires:

1) the other crimes, wrongs or acts must be similar;
2) the other crimes, wrongs or acts must not be remote in time;
3) the evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character, but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of accident or mistake; and
4) although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, considerations of undue delay, waste of time or needless presentation of cumulative evidence.

State v. Matt (1991), 249 Mont. 136, 142, 814 P.2d 52, 56.

Regarding the first element, it is not necessary that the prior act and the charged offense be identical. Gilpin, 756 P.2d at 449; Crist, 833 P.2d at 1054. In State v. Medina (1990), 245 Mont. 25, 31-32, 798 P.2d 1032, 1035-36, we concluded that a prior act of attempted sexual intercourse was sufficiently similar to the charged acts of fondling and forced oral sex against the same victim.

Here, both the other acts evidence introduced at trial and the acts charged involved the same victim. The defendant’s actions during each incident and the charged offenses were basically the same: the defendant waited until he and the victim were alone and attempted or completed some form of sexual intercourse without consent toward his stepdaughter. See State v. McKnight (1991), 250 Mont. 457, 462-63, 820 P.2d 1279, 1282. We conclude that the acts in Flathead County were sufficiently similar to the charged offenses. Little does not challenge the existence of the other three substantive requirements of the Modified Just Rule.

We hold that the District Court did not abuse its discretion in admitting evidence of other acts, wrongs or crimes.

Did the District Court err in excluding evidence regarding the “motorcycle incident?”

On appeal, Little argues that the court improperly denied him the right to impeach the credibility of the older victim by “excluding evidence” regarding an incident that the older victim had described in a pre-trial interview with defense counsel concerning an alleged sexual assault on a motorcycle in Yellowstone County. Little’s argument is misplaced.

It is well-established that admitting or refusing evidence lies within the sound discretion of the trial judge. State v. Kowalski (1992), 252 Mont. 166, 171, 827 P.2d 1253, 1256. We will not hold a trial court in error for a procedure in which a party acquiesced at trial. In re Marriage of West (1988), 233 Mont. 47, 51, 758 P.2d 282, 285. For similar reasons, we will not hold a district court in error for a procedure that did not occur.

During the older victim’s cross-examination, defense counsel did not question, or attempt to question, her regarding the motorcycle incident. The court did sustain the State’s objection to defense counsel’s general question concerning the victim’s truthfulness on the basis that the question was outside the scope of direct examination. That ruling, however, did not relieve the defense of its obligation to at least attempt to question the victim about the motorcycle incident so that a record would be available for review. Absent such a record, we have no basis for concluding that the court wrongfully “excluded” this evidence.

Additionally, Little argues that he was prohibited from recalling the older victim as a witness and from introducing independent evidence about the motorcycle incident. This argument fails for two reasons. First, notwithstanding the court’s suggestion during the older victim’s cross-examination that Little could call the witness in his case-in-chief, Little did not do so. The record contains no ruling by the District Court that prohibited Little from recalling the older victim as a witness.

Second, three days prior to trial, Little submitted a motion in limine seeking to limit the State from referring to any acts alleged to have been committed by the defendant other than the specific four offenses charged and those covered by the Just notice. While no specific ruling appears of record, the District Court appears to have granted the motion, at least tacitly; throughout the proceedings, the court consistently limited the State’s evidence to the four charged acts and the two acts described in the Just notice. When Little’s counsel announced her intention to introduce independent evidence that would prove that the motorcycle incident could not have occurred as the victim described in her interview, the District Court ruled that such evidence would be excluded.

Because of Little’s successful motion in limine, the older victim did not, and could not, testify on direct examination regarding the motorcycle incident. As discussed above, Little did not attempt to cross-examine the older victim concerning the motorcycle incident. Nor did Little call the older victim as a witness in his case-in-chief. Without testimony regarding the motorcycle incident in the record, it would be improper for the defense to introduce evidence from an independent witness as to whether that incident could have occurred. Little seeks the best of both worlds: he argues that the State cannot introduce evidence of his other sexual acts towards the victim because it would be unduly prejudicial; yet, when it suits his purpose, he urges this Court to ascribe error to the District Court for refusing to allow him to question the older victim regarding the “other act,” and for refusing to allow him to introduce independent evidence concerning this “other act.”

We hold that the District Court did not abuse its discretion in refusing to admit evidence of the “motorcycle incident.”

Did the District Court err in refusing to admit two photographs of the scene of the Flathead Lake incident?

During Little’s testimony, he attempted to introduce three photographs which depicted the cherry orchard near Flathead Lake where the incident of oral intercourse was alleged to have taken place. The District Court refused to admit two of the photographs on relevancy grounds. Little argues that he intended to introduce the photographs to demonstrate that there was no stump in the orchard and that the incident could not have happened as the older victim described.

As stated earlier, the trial court has wide discretion in admitting or refusing evidence. Kowalski, 827 P.2d at 1256. The two excluded photographs depict fairly close-up pictures of cherry trees, which, as conceded by Little’s counsel, do not exclude the possibility of a stump in the orchard. As the District Court observed, only the photograph admitted into evidence depicts the road and orchard in such a way that Little could demonstrate the absence of the stump. Therefore, the relevance of the other excluded photographs is minimal. We cannot conclude that the District Court’s evidentiary ruling constituted an abuse of discretion.

Is the evidence sufficient to support the jury’s verdict?

In reviewing a jury verdict in a criminal case, the proper inquiry is whether, after the viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573; State v. Whitcher (1991), 248 Mont. 183, 187, 810 P.2d 751, 753. Like the defendant in Whitcher, Little argues that the jury verdict cannot stand because it is based on the uncorroborated testimony of the victims.

We have held repeatedly that convictions for sexual intercourse without consent and sexual assault are sustainable based entirely on the uncorroborated testimony of the victim. Whitcher, 810 P.2d at 754; Gilpin, 756 P.2d at 453; Howell, 839 P.2d at 93; State v. Maxwell (1982), 198 Mont. 498, 503, 647 P.2d 348, 351. Here, both victims testified that Little had performed various sexual acts upon them during the specified time periods, while they were under the age of 16. Further, Little’s natural daughter confirmed that the younger victim had told her of Little’s sexual acts.

We hold that, based upon the evidence presented at trial, a rational trier of fact could have found the defendant guilty of the offenses of sexual assault and sexual intercourse without consent beyond a reasonable doubt.

Affirmed.

JUSTICES HARRISON, TRIEWEILER, NELSON and WEBER concur.


source: Caselaw Access Project

author: JUSTICE WEBER JUSTICE TRIEWEILER

license: Public Domain

text:
    IN RE MARRIAGE OF MARCIA R. KIMM, Petitioner and Respondent/Cross-Appellant, and CLARENCE J. KIMM, SR., Respondent and Appellant.
    No. 93-045.
    Submitted on Briefs June 1, 1993.
    Decided October 5, 1993.
    50 St.Rep. 1146.
    260 Mont. 479.
    861 P.2d 165.

      For Appellant: James J. Serenar, Nash, Guenther, Zimmer & Serenar, Bozeman.
    For Respondent: James D. McKenna, Lineberger, Walsh & McKenna, Bozeman.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a division of marital property in a marital dissolution proceeding in the Eighteenth Judicial District, Gallatin County. We affirm.

We consider the following issues on appeal:

1. Did the District Court abuse its discretion in ordering the sale of the Kimm Farm if necessary and in assessing the division of marital property?

2. Did the District Court err in distributing to Marcia R. Kimm any interest in the stocks of Alice Kimm?

3. Did the District Court err in ordering Marcia R. Kimm to assume responsibility for one-half of the fraud damages assessed against Clarence J. Kimm, Sr., by his sisters in another action based upon the financial mishandling of Alice Kimm’s estate?

Clarence J. Kimm, Sr. (Clarence) and Marcia R. Kimm (Marcia) have been married since December of 1963. At the time of their marriage, the couple resided in Grand Rapids, Michigan where Clarence worked as a teacher and Marcia as a homemaker. The couple have four children, all of whom have now reached the age of majority.

In 1972, the couple bought the “Kimm Farm” from Clarence’s mother, Alice Kimm, and subsequently, in 1975, moved to Montana to operate the farm. Clarence proceeded to farm the land while Marcia worked part time at the Super Save Drug Store in Bozeman until 1978 after which she worked full time.

Marcia left the Montana farm in 1984 to reside elsewhere. The couple divorced in February of 1987, but remarried four months later. Following the remarriage, Marcia made numerous trips to the farm to visit with Clarence and to do his housework and certain farm work, but neither she nor the children ever again resided at the farm.

Marcia eventually obtained a full-time job with Gallatin County. She currently works full-time at this job and part time cleaning. Clarence continues to farm the ranch.

Marcia retained the responsibility for raising the four children, all of whom resided with her until their majority. Clarence’s testimony at trial reveals that he has no relationship with his children and has not seen them for several years. Although he paid child support for the four months in which the couple were divorced, he has not contributed to their support since his remarriage to Marcia, despite her separate residence.

Marcia filed a petition for legal separation on July 31, 1991. On October 31, 1991, Clarence answered Marcia’s petition by filing a response which requested the action be construed as one for dissolution. Atrial was held on July 8, 1991, by the trial judge.

On August 14, 1992, the court issued its findings of facts and conclusions of law. The court determined that the marriage was irretrievably broken and divided the marital estate $353,447.78 to Marcia and $310,197.78 to Clarence. The court determined that because Clarence had not contributed to the support of his children, Marcia should get the larger share of the estate.

The estate mainly consists of the Kimm Farm which has been appraised at a sales price of $673,000.00. The court provided that either party could buy the other party’s share of the farm and keep the farm from being sold. If neither party tendered money for the other party’s half of the farm, then the court ordered that the farm be sold. Clarence filed a notice of appeal from the court’s order on October 7,1992. Marcia filed a cross-appeal on October 28,1992.

Pertinent to this action, but a separate cause, is a fraud action brought by Clarence’s sisters following the death of Clarence’s mother, Alice. See Flikkema v. Kimm (1992), 255 Mont. 34, 839 P.2d 1293. There, the court ordered Clarence to refund to his sisters $65,000 of the money he had assumed at the mother’s death, as well as $30,000 in punitive damages and costs and fees for a total of approximately $104,000.

The record establishes that upon the death of Alice Kimm, his mother, Clarence assumed control over $100,000 which had been placed in joint tenancy with him. He commingled that $100,000 with other funds of his and of Marcia’s.

The District Court here included the amount taken from Alice Kimm’s estate in Clarence and Marcia’s marital estate because it was impossible to trace the $100,000 taken from Alice Kimm’s estate within the couple’s accounts. Because the marital estate had gained benefit from the inclusion of this money, the court assessed half of the judgment refund to Marcia for a total of $32,860.00. The court assessed the other half of the refund to Clarence plus the $30,000 punitive damages and the $8,470 in costs. Marcia disputes the court’s assessment to her of the $32,860 as she had nothing to do with the defrauding of Clarence’s sisters. Clarence disputes the distribution to Marcia of certain stock purchased from funds of his mother’s estate.

I.

Did the District Court abuse its discretion in ordering the sale of the Kimm Farm if necessary and in assessing the division of marital property?

Clarence contends that the court’s division of the family farm in approximately equal shares to him and his ex-wife is unfair. Clarence claims to have worked the farm basically alone and that everyone involved "with the farm agreed that it would not be sold. Further, Clarence argues that his money and efforts bought and maintained the farm.

Marcia claims that the lower court’s division of the marital estate is equitable and is fully supported by the weight of evidence. Marcia contends that the assets at issue were acquired through the work and frugality of both parties during a 28 year marriage.

District courts are required to equitably apportion between the husband and wife all property and assets belonging to either or both, however and whenever acquired and no matter who holds title to the particular property. Section 40-4-202(1), MCA. District courts working in equity, must seek a fair distribution of marital property using reasonable judgement and relying on common sense. In Re Marriage of Danelson (1992), 253 Mont. 310, 833 P.2d 215. In order to accomplish this task, district courts are given great discretion in dividing the marital estate. Danelson, 253 Mont. at 317, 833 P.2d at 220.

While acknowledging this discretion, we review a court’s findings of fact and decide whether they are clearly erroneous and whether the court has correctly applied the law. Danelson, 253 Mont. at 317, 833 P.2d at 220.

We note first that the court entered 20 pages of findings and conclusions. The court’s findings and conclusions are specific as to the guidelines provided in § 40-4-202, MCA. Of importance here, is the court’s specific notation of the years in which Marcia contributed to the marital estate by homemaking and raising the couple’s four children. The court also noted that while Clarence spent time with the children, that time was allegedly destructive. Further, the court noted that since Marcia left the farm to reside elsewhere with the children, Clarence has not contributed to the support of his children for more than the four months in which the couple was legally divorced in 1987.

Clarence argues that it was his efforts which resulted in the retention of the farm. However, the record supports the following conclusion of the District Court:

The petitioner’s [Marcia’s] contributions during this 28-year marriage, both in her earnings and her services as a mother and homemaker were responsible for the family’s ability to keep this farm.

Marcia not only worked at a regular job, but sometimes worked two jobs, raised the children, did the majority of Clarence’s housekeeping, and worked on the farm as well as contributing financially to it.

The District Court divided the value of the farm between both parties. Partly, it did this in lieu of ordering support for Marcia. The court specifically ordered that the parties “shall have 120 days from the date hereof to acquire sufficient funds to cash out the other and their interest in the marital estate.” The court specifically vacated the restraining order placed upon sale of farm assets so that the parties could raise the needed money to pay for the other’s share of the farm. The value of $336,500.00 minus encumbrances on the property, was assessed to each party. Marcia filed a notice of intent to cash out Clarence’s share. Clarence has filed no similar intent.

Clarence argues that In Re Marriage of Eklund (1989), 236 Mont. 77, 768 P.2d 340, controls the disposition of the farm. We disagree. In Eklund, the court gave a traceable $60,000 gift to the husband. The couple had only been married for four years. The husband’s parents had loaned him $60,000 to buy a house. A promissory note was signed only by the husband. Every year, the parents forgave $20,000 of the debt.

The situation before us is very different. Here, the marriage was for 28 years. The farm was in the names of both parties and both parties contributed to the support and upkeep of the farm. No amount of money within the marital estate was traceable as a gift to either party. Ml assets in the marital estate were commingled. In addition, the District Court here noted that it distributed half of the farm instead of assessing maintenance against Clarence.

Such a distribution of property is reasonable under the facts of this case. We have already determined that where a wife’s non-monetary contributions as a homemaker facilitated the maintenance of the family business (here the farm), it enables the husband to devote more time and effort toward the business and necessitates the wife’s sharing of the property. In Re Marriage of Taylor (1993), 257 Mont. 122, 848 P.2d 478, 50 St.Rep. 186. In its distribution of property, the District Court considered the home-making contribution by Marcia; Marcia’s contribution to the maintenance of the property; the division of the property in lieu of a maintenance award to Marcia; the duration of the couple’s marriage; each parties’ health, age, station in life, occupation, amount and sources of income, vocational skills, employ-ability, personal liabilities and potential for future acquisition of capital assets and income. These are all the elements to be considered under § 40-4-202, MCA.

We conclude that the record establishes that the District Court’s findings in this area were not clearly erroneous. In addition, the record establishes that the District Court properly considered the law in distributing the marital estate.

Finally, in an attempt to compensate Marcia for her years of efforts in the marriage, the court provided for sale of the farm. The court made provision for Clarence or Marcia to provide funds within 120 days in order to purchase the other party’s share of the farm. If neither party put forth funds to buy the other’s half of the property, the farm was to sold and the money distributed according to the court’s order. Sale of property so that the court can equitably distribute the marital estate is not an abuse of discretion. In Re Marriage of Peetz (1992), 252 Mont. 448, 830 P.2d 543.

We hold that the court did not abuse its discretion here in ordering the sale of the Kimm Farm if necessary and in assessing the division of marital property.

II.

Did the District Court err in distributing to Marcia R. Kimm any interest in the stocks of Alice Kimm?

Clarence argues that the stocks devised to him by his mother should in no way be distributed to Marcia. Clarence contends that shares of stock in Borden Chemical Company, Frontier Directory Company, Diamond Shamrock, Ribi Intermountain, Citicorp, and Sterling Chemical were purchased after the death of his mother during the period of divorce. He also contends that shares in First Bank were added during the same period. Clarence contends Marcia has not contributed to the maintenance of these assets and is not entitled to any part of them.

Marcia contends that her steady income allowed the parties to accumulate and preserve these assets as well as other assets of the marital estate.

Whether inherited property is a marital asset remains a question to be treated on a case-by-case basis. In Re Marriage of Isaak (1993), [257 Mont. 176], 848 P.2d 1014, 1017, 50 St.Rep. 219, 221. When property is inherited during the course of a marriage it is a marital asset. Isaak, 848 P.2d at 1017, 50 St.Rep. at 221. Here, Clarence’s mother died 4 days after his divorce was final, but he was remarried four months later.

The key point is that the inheritance from Clarence’s mother’s estate was commingled with the remainder of the marital estate of the parties. The District Court stated:

[Clarence’s] decision to commingle these funds in such a way as to make any tracing impossible, combined with the lack of the introduction of any supporting evidence, makes it impossible for the court to identify any assets to which this inheritance may have been transferred.

Clarence did not present any evidence which contradicted the foregoing conclusion of the District Court.

We hold the District Court did not err in distributing to Marcia an interest in the stocks acquired through use of the proceeds of the estate of Aice Kimm.

III.

Did the District Court err in ordering Marcia R. Kimm to assume responsibility for one-half of the fraud damages assessed against Clarence J. Kimm, Sr., by his sisters in another action based upon the financial mishandling of Aice Kimm’s estate?

Marcia argues on cross appeal that the same stocks and bonds at issue in the aforementioned question were mishandled by Clarence, not her. According to Marcia, the fraud of which Clarence was found guilty had nothing to do with her and she should not have to repay Clarence’s siblings from her half of the marital estate for Clarence’s mishandling of his mother’s estate.

The court in assessing Marcia half of the $65,000 judgment to repay Clarence’s siblings, determined that the couple’s entire marital estate had benefitted from the inclusion in it of the funds from Aice Kimm’s estate. The $100,000 which Clarence took from his mother’s estate had been commingled with his own marital estate so that tracing was impossible. Therefore, the court reasoned that the entire marital estate should be burdened with the judgment, regardless of whether Marcia was involved in the prior fraud action.

We conclude that such reasoning is not an abuse of discretion. While the court assessed Marcia half of the amount to be given to Clarence’s siblings, it did not assess her half of the marital estate with the court costs from the prior case or the $30,000 punitive damages.

We hold that the District Court did not err in ordering Marcia Kimm to assume responsibility for one-half of the fraud damages assessed against Clarence Kimm by his sisters in another action based upon Clarence’s mishandling of Aice Kimm’s estate.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and NELSON concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the conclusions in the majority opinion under Issues I and III.

I specially concur with the result of the maj ority’s conclusion under Issue II. However, I disagree in part with the reasons for that conclusion.

The majority cites its opinion in In re Marriage of Isaak (Mont. 1993), 257 Mont. 176, _, 848 P.2d 1014, 1017, 50 St. Rep. 219, 221, for the principle that property inherited during the course of marriage is a marital asset. That conclusion ignores the specific statutory requirement found at § 40-4-202(1), MCA, that pre-acquired property, gifted property, or inherited property be treated differently than other property acquired during the marriage. That statute specifically requires that when dividing inherited property or property acquired in exchange for inherited property, the court must consider the nonmonetary contributions of a homemaker and the extent to which those contributions have facilitated the maintenance of this property. The court must also consider whether the property division is an alternative to maintenance arrangements. If the Legislature intended such casual treatment of pre-acquired or inherited property, as is indicated in the majority opinion, then the various specific requirements set forth in § 40-4-202(1), MCA, would have been totally unnecessary.

This Court’s decisions have, from time to time, reflected this statutory mandate, but not with any degree of predictability. See In re Marriage of Keedy (1991), 249 Mont. 47, 813 P.2d 442 (Trieweiler, J., dissenting); In re Marriage of Johnston (1991), 249 Mont. 298, 815 P.2d 1145 (Trieweiler, J., dissenting); Isaak, 257 Mont. at _, 848 P.2d at 1014, (Trieweiler, J., dissenting). The effect of recent decisions, such as Isaak, is to simply amend the property distribution statute by removing the specific criteria provided therein and provide broad discretion for the distribution of all property. This approach is more consistent with this Court’s result-oriented approach to the distribution of property owned by any party who is unfortunate enough to become involved in a dissolution of marriage. However, it is not a correct application of statutory law.

In spite of these concerns with language in the majority’s opinion, I conclude that in this case the District Court correctly found that Clarence produced insufficient evidence to allow the District Court to trace the proceeds of his inheritance. The District Court found that:

As a result of the death of respondent’s mother in February of 1987, respondent claims to have obtained funds totalling approximately $105,000, the source of which were joint tenancy CDs and money market accounts standing in the name of respondent and his mother. Respondent apparently commingled those funds by purchasing stock or mutual funds under the parties’ joint account, adding property to the parties’ joint farm and otherwise. He presented no documentation or evidence which traced the specific use or location of this $105,000 alleged inheritance. The court notes that neither copies of the CDs, money market accounts, or a will were introduced as evidence. Respondent’s decision to commingle these funds in such a way as to make any tracing impossible, combined with the lack of the introduction of any supporting evidence, makes it impossible for the court to identify any assets to which this inheritance may have been transferred. Accordingly, no assets will be delineated herein as non-marital property.

Based on the inadequacy of Clarence’s proof, the District Court was unable to trace his inherited property and was not in a position to more accurately satisfy the requirements of § 40-4-202(1), MCA.

For these reasons, I concur with the majority’s decision to affirm the District Court, but not for the reasons stated in the majority opinion.


author: JUSTICE TRIEWEILER

text:
    HOWARD R. HEINLE, Petitioner, v. FOURTH JUDICIAL DISTRICT COURT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF MISSOULA, HONORABLE DOUGLAS G. HARKIN, Presiding Judge, Respondent.
    No. 93-353.
    Dated October 5, 1993.
    50 St.Rep. 1141.
    260 Mont. 489.
    861 P.2d 171.

      For Petitioner: Paul Neal Cooley, Skelton & Cooley, Missoula.
    For Respondent: Randy Harrison, Harrison Law Office; Douglas G. Harkin, District Judge; Nancy E. Gunderson, Missoula (for District Court).
   OPINION AND ORDER

JUSTICE TRIEWEILER

delivered the Opinion of the court.

Howard R. Heinle petitioned this Court for a writ of certiorari requesting that a default judgment entered against him by the District Court for the Fourth Judicial District, Missoula County, be declared void on the basis that the court exceeded its jurisdiction when it modified the provisions of a California dissolution decree with respect to child support.

On January 21, 1987, the Superior Court of California, County of San Joaquin, dissolved the marriage of Verleen V. Heinle and Howard R. Heinle. In the dissolution decree, Howard was ordered to pay Verleen $180 per month for the support of the parties’ two minor children.

In August 1990, Verleen and the children moved to Montana. Seven months later, Verleen moved the District Court in Missoula to modify the California decree with respect to child support and visitation. Verleen stated that the visitation provisions of the original decree were no longer practical due to the geographical locations of the parties, and that Howard had sufficient earning capacity to pay child support consistent with Montana’s child support guidelines. No evidence was presented regarding a basis for the court to exercise personal jurisdiction over Howard, and Verleen’s petition contained no recitations to satisfy the jurisdictional requirements of § 40-4-210, MCA, or Rule 4B, M.R.Civ.R, for the exercise of personal jurisdiction over nonresident defendants in matters of child support.

Howard was personally served in California in accordance with Rule 4D(3), M.R.Civ.R, on February 28, 1991. On April 15, 1991, Verleen petitioned the District Court for a default judgment on the basis that Howard had made no appearance as of that date. The court entered a default judgment on that same day, ordering Howard to pay $602 per month in child support, and modifying his visitation rights.

The default judgment was sent to Howard in California; he does not allege that it was not received, nor that he was unaware of the judgment entered against him.

On May 6, 1992, Verleen petitioned the District Court for an order requiring that the support payments be made through the clerk of court’s office, and requested the court to reduce child support arrearages to a judgment amount. Howard had been paying the support due under the California decree, although he was approximately three months delinquent in those payments, but had not been paying the amounts required under the Montana order. He was served by mail with Verleen’s motions and notice of the scheduled court date. Howard did not appear at the hearing, and a judgment was subsequently entered against him in the amount of $6656.

Approximately one year later, on April 20, 1993, Verleen applied to the Superior Court of California to obtain an order for the sale of Howard’s California residence in order to satisfy the judgment. Howard then filed a motion in the Montana District Court for a restraining order to enjoin Verleen from executing on the judgment on the basis that the 1991 default judgment entered by the Montana court was void for lack of subject matter and personal jurisdiction. He also claimed that Verleen’s subsequent motions had been defectively served on him because service had been by mail, and therefore, the judgment based on those motions was also void.

Howard’s motion was denied on the basis that he had waived the defense of lack of personal jurisdiction pursuant to Rule 12(h), M.R.Civ.R, by his failure to appear in the action prior to the entry of the default judgment. The court also rejected Howard’s arguments regarding service of process defects because Verleen’s subsequent motions did not constitute “new or additional claims” which would have required personal service.

On a motion to reconsider, Howard claimed that he had not waived the right to object to personal jurisdiction because he had not made a voluntary appearance, as contemplated by rule 12(h), before the judgment was entered against him. The court denied this motion.

The petition for writ of certiorari was filed with this Court on July 20,1993. Howard claims that the court exceeded its jurisdiction when it modified the California decree with respect to child support because it lacked personal jurisdiction over him. He does not challenge the District Court’s jurisdiction to modify the original decree’s provisions in regard to visitation. Howard seeks relief through a writ of certiorari because his home is in danger of being sold to satisfy the Montana judgment and he has no “plain or speedy remedy” through the usual course of appeal.

Under § 27-25-102, MCA, a writ of certiorari may be granted when an inferior tribunal has exceeded its jurisdiction and there is no appeal or, in the judgment of the court, any plain, speedy, and adequate remedy. City of Helena v. Buck (1991), 247 Mont. 313, 806 P.2d 27. A certiorari proceeding is limited to a review of the lower court’s record for the sole purpose of determining from such record whether the tribunal had jurisdiction to do the act, to make the order, or to render the judgment about which the petitioner complains. Lay v. District Court (1948), 122 Mont. 61, 198 P.2d 761. For reasons which will be set forth, we conclude that certiorari is a proper remedy in this instance because the District Court exceeded its jurisdiction when it entered the default judgment on April 15,1991, and Howard has no other adequate remedy.

Although Howard raises several issues regarding jurisdiction and service of process, the arguments set forth by the parties focus mainly on the question of whether Howard waived his right to raise a personal jurisdiction objection by not filing a timely objection under Rule 12(b), M.R.Civ.P. However, after reviewing the record, and based on our decision in Prentice Lumber Company v. Spahn (1970), 156 Mont. 68, 474 P.2d 141, we conclude that the dispositive question is whether the court had a constitutional basis to exercise personal jurisdiction over Howard and enter a money judgment against him. It is well established that if a court does not properly acquire personal jurisdiction over a defendant, a default judgment entered against that defendant is void. Marriage of Blaskovich (1991), 249 Mont. 248, 250, 815 P.2d 581, 582; Shields v. Pirkle Refrigerated Freight Lines, Inc. (1979), 181 Mont. 37, 45, 591 P.2d 1120, 1125.

In Prentice Lumber, we considered whether a defendant had waived his right to assert lack of personal jurisdiction by not raising this defense in his initial response. Because the defendant had filed a motion pursuant to Rule 12(b), M.R.Civ.P., in which subject matter, but not personal, jurisdiction was challenged, we held that the defense had been waived pursuant to the explicit provisions of Rule 12(h), M.R.Civ.R However, that holding was immaterial because we concluded that, regardless of the question of waiver, the dispositive issue in that case was whether the Montana court had proper jurisdiction over the person of a nonresident defendant. Prentice Lumber, 474 P.2d at 143. After analyzing constitutional considerations, and whether the state had long-arm jurisdiction under Rule 4B, M.R.Civ.P., we found that the defendant was subject to the jurisdiction of the court.

We believe that same analytic approach is proper in this instance; the question of waiver is immaterial because the controlling consideration is whether the Montana court had a constitutional basis to exercise personal jurisdiction over Howard and whether the judgment against him was, therefore, valid and binding.

In Marriage of Appleton (1988), 234 Mont. 345, 763 P.2d 658, we clarified that courts of this state must have in personam jurisdiction over a nonresident parent before a judgment ordering child support can be entered. In that case, although the court’s custody determination was upheld because the court had jurisdiction over the children living in the state, the husband demonstrated that he had been residing in Tennessee when served with process and had taken no actions which would subject him to the long-arm jurisdiction conferred in Rule 4B, M.R.Civ.P. On that basis, we held that the court lacked in personam jurisdiction to enter a money judgment against the defendant, and the court’s support order was vacated. Appleton, 763 P.2d at 350.

Section 40-4-210, MCA, allows Montana courts to exercise personal jurisdiction over nonresident parents in child support matters in situations where a parent previously resided in the state with the child, or when the child was conceived or adopted in the state when at least one parent was a resident. Absent those specific situations, which are not applicable in this case, a court can exercise personal jurisdiction over a nonresident defendant only if “there is any basis consistent with the constitutions of this state and the United States.” Section 40-4-210(8), MCA.

This Court has consistently held that in order to satisfy constitutional guarantees, a court must undertake an analysis of whether a nonresident defendant has sufficient contacts with the forum state in order for that state to assume personal jurisdiction. Edsall Construction Co. v. Robinson (1991), 246 Mont. 378, 804 P.2d 1039; Simmons Oil v. Holly Corp. (1990), 244 Mont. 75, 796 P.2d 189; Nelson v. San Joaquin Helicopters (1987), 228 Mont. 267, 742 P.2d 447. Rule 4B, M.R.Civ.P, sets forth the types of activities undertaken by nonresidents which can give rise to the acquisition of personal jurisdiction by courts of this state and which comport with constitutional guarantees. In this instance, there are simply no facts in the record to suggest that Howard engaged in any of these activities, nor are there any facts to suggest that Howard had sufficient “minimum contacts” to warrant a Montana court assuming personal jurisdiction over him. Other than assisting the family in moving to Montana and arranging for visitation, the record contains no evidence that Howard had any contact with Montana prior to the entry of the default judgment.

In Kulko v. California Superior Court (1978), 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132, the United States Supreme Court considered a similar situation to the one presented here. In Kulko, the Court held that a nonresident father whose only contact with the forum state was that his children resided there could not be haled into court in an action for increased child support payments. The Court concluded that the state’s interest in protecting resident children did not make that state a proper forum if the nonresident parent lacks sufficient minimum contacts with the forum state.

Although this Court similarly recognizes the need to ensure that nonresident parents provide support for their children, we conclude, as did the Court in Kulko, that, in the absence of evidence that Howard had contacts with this state other than the mere fact that his children reside here, the Missoula court’s exercise of personal jurisdiction over Howard in 1991 was not constitutionally warranted. Therefore, the default judgment entered against Howard with respect to child support is void.

Before concluding, we will respond to an argument raised by the District Court in its opposition to the petition for writ of certiorari. The court correctly points out that an indispensable requirement for granting a writ is that the order or judgment complained of is not appealable. State ex rel. Gates v. District Court (1923), 69 Mont. 322, 221 P. 543. Because an order modifying child custody and support is “a special order made after final judgment” from which appeal can be taken, the court contends that Howard should have appealed from that judgment in a timely manner, and should not now be allowed to seek relief through a writ proceeding.

We would simply note that since the court had no constitutional basis to exercise jurisdiction over Howard, it cannot compel him to challenge jurisdiction in accordance with Montana’s rules of civil or appellate procedure. There is no need to appeal from a judgment that is void. Therefore, certiorari is not prohibited in this instance because Howard does not have an adequate remedy of appeal.

For the reasons stated, the writ of certiorari is GRANTED.

IT IS HEREBY ORDERED that the provisions of the 1991 default judgment ordering Howard R. Heinle to pay $602 per month in child support, and the subsequent judgment reducing the arrearages to an amount, are vacated.

DATED this 4th day of October, 1993.

J. A. TURNAGE, Chief Justice

JOHN CONWAY HARRISON, Justice

WILLIAM E. HUNT, SR., Justice

KARLA M. GRAY, Justice

JAMES C. NELSON, Justice

FRED J. WEBER, Justice


text:
    RICHARD A. WALCH, Plaintiff and Appellant, v. UNIVERSITY OF MONTANA and STATE OF MONTANA, Defendants and Respondents.
    No. 93-180.
    Submitted on Briefs September 2, 1993.
    Decided October 6, 1993.
    50 St.Rep. 1186.
    260 Mont. 496.
    861 P.2d 179.

      For Plaintiff and Appellant: Alan F. Blakley, Missoula; Douglas Donald Harris, Harris, Callaghan & Velk, Missoula.
    For Defendants and Respondents: Joseph P. Mazurek, Attorney General, James M. Scheier, Asst. Attorney General, Agency Legal Services Bureau, Helena.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiff Richard A. Walch filed this complaint in the District Court for the Fourth Judicial District, Missoula County, to recover damages from defendants, University of Montana and State of Montana, for what he alleged was his wrongful termination from employment at the University of Montana. The District Court granted defendants’ motion for summary judgment and entered judgment for defendants, dismissing plaintiff’s complaint with prejudice. From that judgment, plaintiff appeals. We affirm the order and judgment of the District Court.

Plaintiff’s appeal raises a number of issues. However, we find the following issues dispositive of plaintiff’s appeal:

1. Did retired District Judge Jack L. Green have legal authority to grant defendants’ motion for summary judgment on January 26, 1993, after his retirement as a District Judge on January 1, 1993?

2. Was plaintiff’s claim barred as a matter of law based on the applicable statute of limitations?

FACTUAL BACKGROUND

On September 5, 1989, plaintiff filed a complaint in the District Court for the Fourth Judicial District of Montana in Missoula County. He alleged that he had been employed at the University of Montana from May 1978 until September 9,1986, in the University’s physical plant. He alleged that he had performed his duties satisfactorily, and based on the covenant of good faith and fair dealing, he had a reasonable expectation of continued employment. He complained that he was notified during 1986 that his position at the University was being terminated because of budgetary requirements, but contended that that statement was untrue and that others were hired to replace him at greater expense. He alleged that his termination from employment at the University constituted a wrongful discharge and violated his employer’s covenant of good faith and fair dealing.

For their answer, defendants denied the material allegations of plaintiff’s complaint and raised several affirmative defenses, including the bar of the statute of limitations.

After answering plaintiff’s complaint, defendants moved the District Court for summary judgment dismissing plaintiff’s complaint. In support of their motion, defendants submitted a copy of plaintiff’s response to defendants’ request for admissions. In his response, plaintiff admitted that Exhibit A, which had been attached to defendants’ request, was a true and correct copy of a letter sent to him by F. S. Shandorf, the manager of maintenance services at the University. Plaintiff admitted that he received the letter on August 6 or 7, 1986. In that letter, plaintiff was notified that his employment with the University would be permanently discontinued effective September 10,1986, and that his last day of employment with the University would be September 9, 1986. Based on that admission, and our decision in Martin v. Special Resource Management, Inc. (1990), 246 Mont. 181, 803 P.2d 1086, defendants contended that plaintiff’s claim was barred by the statute of limitations as a matter of law. Plaintiff conceded that the Martin case was applicable, but claimed that this case should be distinguished, based on his allegation that after receiving the notice of termination he filed a grievance contesting his discharge. His position was that the grievance extended the time of termination until the grievance procedure was concluded and that the procedure was not concluded until he was terminated on September 9 without any further response from the University.

What plaintiff referred to as .a grievance was a letter from his attorney to J. A. Parker, plaintiff’s supervisor, which was dated September 2, 1986, and stated in relevant part as follows:

Dear Mr. Parker:
In regard the above captioned, I wish to advise that I represent Richard A. Walch and now advise that on his behalf, I will be filing a grievance under policy number 55, Discrimination Grievance Procedure, and ¡or a Complaint in District Court -vs- you and the University for damages incurred by Richard Walch because of your obvious discrimination against him. This action will be filed after September 9th, 1986, which is the day that your Memo of August 11th, 1986, indicates will be Dick Walch’s last day at work. If in fact Dick Walch is cut from the payroll at that time, his damages will start to accrue as of that date. [Emphasis added.]

However, nothing further was filed on behalf of plaintiff until the complaint was filed on September 5, 1989.

On January 26, 1993, several weeks after his retirement as a District Judge, Jack L. Green issued his memorandum and order granting defendants’ motion for summary judgment. That order was based on several conclusions of law. However, material to this opinion was the District Court’s conclusion that since plaintiff was notified of his termination on August 6, 1986, and he did not file his complaint until September 5, 1989, his cause of action was barred pursuant to our decision in Martin.

Judgment for defendants was entered on February 4, 1993, and a timely notice of appeal was filed by plaintiff following entry of judgment.

On appeal, plaintiff raises two arguments which are relevant to this opinion. He contends that since retired Judge Green was not a District Court Judge or judicial officer, he did not have authority to grant summary judgment on January 26, 1993. Therefore, plaintiff reasons that that order is void.

Plaintiff also contends that our decision in Martin does not control regarding the issue of the statute of limitations because that case did not involve a statute of limitations. Instead, plaintiff contends that our decision in Allison v. Jumping Horse Ranch, Inc. (1992), 255 Mont. 410, 843 P.2d 753, controls, and therefore, his complaint was timely.

STANDARD OF REVIEW

This Court reviews an order of summary judgment by utilizing the same criteria used by a district court initially under Rule 56, M.R.Civ.P. Minnie v. City of Roundup (1993), 257 Mont. 429, 849 P.2d 212, 50 St. Rep. 342. Pursuant to Rule 56(c), summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.

I.

Did retired District Judge Jack L. Green have legal authority to grant defendants’ motion for summary judgment on January 26, 1993, after his retirement as a District Judge on January 1,1993?

Section 19-5-103, MCA (1991), provides in relevant part that:

(1) Every judge or justice who has voluntarily retired after 8 years of service shall, if physically and mentally able, be subject to call by the supreme court or the chief justice thereof to aid and assist the supreme court, any district court, or any water court under such directions as the supreme court may give, including the examination of the facts, cases, and authorities cited, and the preparation of opinions for and on behalf of the supreme court, district court, or water court, or to serve as water judge. The opinions, when and if and to the extent approved by the court, may by the court be ordered to constitute the opinion of such court. Such court and such retired judge or justice may, subject to any rule which the supreme court may adopt, perform any and all duties preliminary to the final disposition of cases insofar as not inconsistent with the constitution of the state.

We take judicial notice that prior to January 1, 1993, the date on which he retired, Jack L. Green served as a District Judge for the Fourth Judicial District of the State of Montana for over 29 years. Pursuant to the authority of § 19-5-103, MCA, Chief Justice of the Montana Supreme Court, J. A. Turnage, issued the following order:

The Honorable Jack L. Green, former Judge of the Fourth Judicial District of the State of Montana, having retired under the provisions of the Montana Judges Retirement System, and having advised that certain proceedings that were heard by him were not completed on the date of his retirement, and having requested to be reactivated for the purposes of completing such matters,
NOW THEREFORE IT IS ORDERED:
1. The Honorable Jack L. Green is hereby called to active service in the District Court of the Fourth Judicial District of the State of Montana, in and for the County of Missoula, to continue in jurisdiction in the following matters in that court:
Cause No. 71548, Richard A. Walch v. The University of Montana and the State of Montana.

Based on statutory authority and the above order, we conclude that retired Judge Jack L. Green had authority to decide defendants’ motion for summary judgment when he issued his memorandum and order on January 26, 1993, and entered judgment for defendants on February 4, 1993.

II.

Was plaintiff’s claim barred as a matter of law based on the applicable statute of limitations?

The District Court correctly granted summary judgment for defendants pursuant to our decision in Martin v. Special Resource Management, Inc. (1990), 246 Mont. 181, 803 P.2d 1086. In that case, the plaintiff was informed on June 16, 1987, that her employment with the defendant would be terminated as of July 17,1987. On June 28, 1988, she filed suit alleging wrongful discharge, breach of the implied covenant of good faith and fair dealing, and negligence. The District Court dismissed her common law claims for breach of the implied covenant and negligence, on the basis that they were barred by the Wrongful Discharge from Employment Act (§ 39-2-901 through -914, MCA) which became effective on July 1, 1987. The District Court concluded that her claim for wrongful termination had not fully accrued until her final termination on July 17, 1987.

On appeal, we reversed the District Court. We stated that the issue was: “At what point did an actionable cause for termination arise in this case — upon notice of termination or when the termination became effective?”

While acknowledging the general rule that tort actions accrue when all elements, including damages, have occurred, we pointed out that historically tort actions arising from contractual obligations have been treated differently. We subscribed to the rule that “[i]n torts arising from contract[,] the statute of limitations has been held to begin to run at the time of the breach of duty constituting the tort and not when damages ensue.” Martin, 803 P.2d at 1088 (citing Aetna Life and Casualty Co. v. Sal E. Lobianco & Son Co., Inc. (1976), 43 Ill. App. 3d 765, 2 Ill. Dec. 454, 456, 357 N.E.2d 621, 623).

On that basis we held that:

We concur with Martin that her cause of action accrued upon notice of her termination. All the elements needed for a claim of breach of the implied covenant of good faith and fair dealing, if present at all, were present then. It is from the decision to terminate itself which Martin seeks redress. Her cause is analogous to being pushed from the precipice — the assailant cannot contend he is not culpable until the victim impacts with the ground. It was the decision and the act thereupon which caused the end result, and it is at that point where legal redress may first be sought.

Martin, 803 P.2d at 1089.

While policy arguments can be presented to the contrary, our holding in Martin is clear and controls the outcome in this case. It would be inconsistent to hold that a cause of action accrues at the time notice of termination is received when accrual is critical to extending common law protections to a discharged employee, but that accrual occurs at some later date when deciding whether an employee has timely commenced a common law cause of action for wrongful termination of employment.

Plaintiff contends that Martin does not control because it was not a statute of limitations case. However, the Martin case was unequivocal in its conclusion that a cause of action for wrongful termination from employment, whether it is based on breach of the covenant of good faith and fair dealing, or a common law wrongful discharge claim, “accrued upon notice of her termination.” In Montana, “[ujnless otherwise provided by statute, the period of limitation begins when the claim or cause of action accrues.” Section 27-2-102(2), MCA. Since the plaintiff’s claims in this case are based on defendants’ alleged torts, the period prescribed for commencement of his cause of action is three years from the date of accrual. Section 27-2-204, MCA.

Plaintiff submits that our decision should be controlled by our prior decision in Allison v. Jumping Horse Ranch, Inc. (1992), 255 Mont. 410, 843 P.2d 753. However, that case is not on point.

In Allison, we were asked to decide “[a]t what point, under § 39-2-911(1), MCA, of the Wrongful Discharge From Employment Act, does the statute of limitations begin to run?” As mentioned previously, the Act preempted common law remedies and altered the statute of limitations in wrongful termination from employment actions effective July 1,1987. Section 39-2-911(1), MCA, provided that “[a]n action under this part must be filed within 1 year after the date of discharge.” Section 39-2-903(2), MCA, defines “discharge” as including “constructive discharge as defined in subsection (1) and any other termination of employment....” We held that for purposes of construing the Act’s statute of limitations, “termination of employment” occurred at such time as there was a complete severance of the employer/employee relationship. Allison, 843 P.2d at 755. We distinguished Martin on the basis that, in that case, we were not construing the Wrongful Discharge From Employment Act, nor its specific provision for limitation of actions.

In this case, plaintiff’s termination occurred in 1986, prior to the enactment of the Wrongful Discharge From Employment Act. It is based on the common law claim of wrongful discharge and breach of the covenant of good faith and fair dealing. We conclude, based on our decision in Martin, that plaintiff’s cause of action, which was filed on September 5,1989, accrued on August 6,1986, and was barred by the statute of limitations found at § 27-2-204, MCA, which allows three years to file from the date on which the cause of action accrued.

Therefore, we affirm the judgment of the District Court.

JUSTICES HARRISON, HUNT, NELSON and WEBER concur.


author: CHIEF JUSTICE TURNAGE

text:
    ESTATE OF VONNIE D. SPICHER, Deceased, by and through WAYNE SPICHER, Personal Representative, WAYNE SPICHER, individually and as Guardian Ad Litem for MALYNDA KaANN SPICHER and BRITON EARL SPICHER, Minors, Plaintiffs and Appellants, v. FRANK MILLER, M.D., and HAVRE CLINIC, Defendants and Respondents.
    No. 92-080.
    Submitted on Briefs September 2, 1993.
    Decided October 6, 1993.
    50 St.Rep. 1180.
    260 Mont. 504.
    861 P.2d 183.

      For Plaintiffs and Appellants: Frank Altman and Dan Boucher, Altman & Boucher, Havre; and Diane Fenner, Adler & Kops, Philadelphia, Pennsylvania
    For Defendants and Respondents: James Aiken, Jardine Stephenson, Blewett & Weaver, Great Falls.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

. This is an action for wrongful death and survivorship. A jury in the Twelfth Judicial District, Hill County, returned a verdict for plaintiffs and awarded damages of $302,461. The plaintiffs appeal. We affirm.

The issues are:

1. Did the District Court err in refusing to grant a new trial on grounds of juror misconduct and irregularity in the proceedings?

2. Did the court err in refusing to grant a new trial on grounds that the amount of the verdict was not supported by the evidence?

Vonnie Spicher, age thirty-five, died in the recovery room at Northern Montana Hospital in Havre, Montana, following hysterectomy surgery. She is survived by her husband, Wayne Spicher, and two young children. Defendant Frank Miller, M.D., who was associated with Havre Clinic, performed the surgery. In bringing this action, plaintiffs also named other defendants, who settled prior to trial.

The jury found that Dr. Miller was not negligent but that the nurse anesthetist at surgery was negligent and that Dr. Miller was responsible for the nurse anesthetist’s actions. The jury further found that such negligence was a substantial factor causing the death of Vonnie Spicher. It awarded $50,000 as damages to the estate of Vonnie Spicher for lost earnings and services; $2,461 for funeral expenses; $50,000 as damages to Vonnie Spicher’s surviving husband and children for lost services from her; $100,000 to the surviving family for lost society, comfort, guidance, education, care, protection and companionship; and $100,000 for the survivors’ grief, sorrow, and mental anguish.

Plaintiffs moved for new trial, claiming irregularities in the proceedings and insufficiency of the evidence, under subsections (1) and (6) of § 25-11-102, MCA. They filed affidavits by three jurors stating that, during jury deliberations, certain other jurors expressed opposition to large damage awards and the belief that damages should not be awarded for the death of a person.

The District Court denied the motion for new trial, ruling that the verdict could not be impeached by affidavits. The court also rejected the argument that the amount of the verdict is insufficient under the evidence presented. Plaintiffs appeal.

I

Did the District Court err in refusing to grant a new trial on grounds of juror misconduct and irregularity in the proceedings?

A new trial may be granted on grounds which have materially affected the substantial rights of the aggrieved party. Section 25-11-102, MCA. Our standard of review of a ruling on a motion for new trial is whether the district court abused its discretion. Gass v. Hilson (1990), 240 Mont. 459, 461, 784 P.2d 931, 933.

Plaintiffs contend that three jurors failed to honestly answer material questions on voir dire. Although no transcript was made of voir dire, both parties submitted their versions of that portion of the record to the District Court and the court generated a written summary of what occurred, pursuant to Rule 9(d), M.R.App.P.

During voir dire, plaintiffs’ counsel inquired about the prospective jurors’ ability to enter a verdict for damages in substantial amounts; specifically, whether they could award damages in excess of one million dollars. Counsel also inquired whether any potential jury member believed that a suit for damages should not be filed or maintained for the loss of a family member. None of the jurors indicated any problems in either area. Yet, argue the plaintiffs, the post-trial juror affidavits prove that not all of the eventual jurors were being truthful during voir dire.

Rule 606(b), M.R.Evid., provides:

Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
However, as an exception to this subdivision, a juror may testify and an affidavit or evidence of any kind be received as to any matter or statement concerning only the following questions, whether occurring during the course of the jury’s deliberations or not: (1) whether extraneous prejudicial information was improperly brought to the jury’s attention; or (2) whether any outside influence was brought to bear upon any juror; or (3) whether any juror has been induced to assent to any general or special verdict, or finding on any question submitted to them by the court, by a resort to the determination of chance.

None of the exceptions listed in the second paragraph of Rule 606(b), M.R.Evid., are present in this case.

This Court has consistently held that under Rule 606(b), M.R.Evid., the use of juror affidavits to impeach a jury verdict is limited to showing external influences on the jury. See, Greytak v. RegO Company (1993), [257 Mont. 147], 848 P.2d 483, 487, 50 St. Rep. 204, 206-07. The rationale is:

The rule is ... for the purpose of preventing litigants or the public from invading the privacy of the jury room, either during the deliberations of the jury or afterward.... [I]f after being discharged and mingling with the public, jurors are permitted to impeach verdicts which they have rendered, it would open the door for tampering with jurors and would place it in the power of a dissatisfied or corrupt juror to destroy a verdict to which he had deliberately given his assent under sanction of an oath ....
Testimony of the jurors to impeach their own verdict is excluded not because it is irrelevant to the matter in issue, but because experience has shown that it is more likely to prevent than to promote the discovery of the truth.

76 Am. Jur.2d, Trial, § 1219, as cited in Boyd v. State Medical Oxygen & Supply, Inc. (1990), 246 Mont. 247, 252, 805 P.2d 1282, 1285-86. See also Charlie v. Foos (1972), 160 Mont. 403, 408, 503 P.2d 538, 540-41.

Plaintiffs refer to their right to a fair trial and cite cases from other jurisdictions in which new trials were granted based on false or biased answers by prospective jurors to questions on voir dire. However, some of those cases involved false answers to questions about personal experiences, which are more easily proven than are omissions to state beliefs or opinions held by the juror. See, e.g., Skiles v. Ryder Truck Lines, Inc. (Fla. 1972), 267 So.2d 379, cert. denied 275 So.2d 253. In some of the cases, no rule similar to Rule 606(b), M.R.Evid., was cited. See, e.g., Smith v. Kent (Wash. App. 1974), 523 P.2d 446. Further, Rule 606(b), M.R.Evid., while based on a federal rule of evidence, is unique to Montana.

We hold that the District Court did not abuse its discretion in denying the motion for new trial on grounds of juror misconduct.

II

Did the court err in refusing to grant a new trial on grounds that the amount of the verdict was not supported by the evidence?

The plaintiffs argue that the amounts awarded by the jury as damages for loss of earnings and loss of services cannot be explained based upon the evidence. At trial, they presented the testimony of an expert who calculated the loss of services over Vonnie Spicher’s expected lifetime as $422,383 if she remained at home working as a ranch wife and loss of services at $400,458 and loss of earnings at $404,650 if she returned to the outside work force as a teacher after her youngest child reached the age of eighteen.

The defense did not offer an alternative calculation as to the value of the lost earnings and services. However, on cross-examination, the defense elicited testimony from the plaintiffs’ expert that his figures were estimates based upon assumptions about the future, made from the information he was given. The record further discloses that the jury was properly instructed that it was the sole judge of the facts and that it alone was to determine the extent to which any witness should be believed. The jury was also properly instructed that it was not bound by an expert’s opinion, but should give the opinion the weight, if any, to which the jury deemed it entitled.

We hold that the court did not abuse its discretion in refusing to grant a new trial on damages.

Affirmed.

JUSTICES HUNT, TRIEWEILER, NELSON and WEBER concur.