author: CHIEF JUSTICE TURNAGE

text:
    VERNON L. INGBRETSON, Claimant and Respondent, v. LOUISIANA-PACIFIC CORPORATION, Respondent, Insurer, Employer and Appellant.
    No. 94-622.
    Submitted on Briefs June 29, 1995.
    Rehearing Denied August 31, 1995.
    Decided August 10, 1995.
    52 St.Rep. 764.
    272 Mont. 294.
    900 P.2d 912.

      For Appellant: Jerry Schuster, Kelso & Irwin, Coeur d’Alene, Idaho.
    For Respondent: Jon L. Heherling, Attorney at Law, Kalispell.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Louisiana-Pacific Corporation appeals a judgment of the Workers’ Compensation Court granting Vernon Ingbretson temporary total disability benefits for an occupational disease sustained within the course of his employment with Louisiana-Pacific. The court also awarded Ingbretson costs and attorney fees and a 20 percent penalty. We affirm.

We restate the issues as follows:

1. Did the Workers’ Compensation Court abuse its discretion by deciding issues not raised in the pretrial order?

2. Did the court exceed its jurisdiction by deciding that Ingbretson was wrongfully discharged from his employment and did it then err in failing to apply the provisions of Montana’s Wrongful Discharge from Employment Act?

3. Did the court err in finding that Ingbretson was temporarily totally disabled within the meaning of §§ 39-71-116(28) and -701, MCA?

4. Did the court err in awarding costs and attorney fees to Ingbretson pursuant to § 39-71-611 and § 39-72-402(1), MCA?

5. Did the court err in assessing a 20 percent penalty against Louisiana-Pacific pursuant to § 39-71-2907, MCA?

Vernon Ingbretson was employed as a laborer at Louisiana-Pacific’s lumber mill in Libby, Montana. In 1992, he began noticing problems with his elbows. In June of 1993, he gave notice of an occupational disease to Louisiana-Pacific, which initially denied his claim.

Ingbretson continued working for Louisiana-Pacific except during periodic layoffs when there was not enough work at the mill. In August of 1993, he returned from a layoff to his regular job, or “bid job,” as a forklift operator.

On August 4, 1993, the Employment Relations Division of the Montana Department of Labor & Industry entered an order determining that Ingbretson had an occupational disease — bilateral lateral epicondylitis. In an effort to keep him on the job, Louisiana-Pacific reassigned Ingbretson to a job as a stacker operator.

On August 13, 1993, Dr. Brus examined Ingbretson. Dr. Brus approved Ingbretson to work as a stacker operator, based on a description of the job as “to stand and keep in visual contact with 3 automatic stacking machines and on occasion pushing a button.”

The actual work as a stacker operator was more physically demanding than suggested by the above job description. While on the stacker, Ingbretson had the task of picking short, rotten, or broken 2x4’s off the machine. He often fell behind, and had to repeatedly lift the lumber. He was told to ask for help when he needed it, but often there was no one in view for him to ask.

From August 16 to September 28, 1993, Ingbretson alternated between the stacker position and a guard shack position. The guard shack position consisted of giving directions to vehicles entering the mill. At that time, Louisiana-Pacific did not have a full-time day shift guard shack worker. When Ingbretson was working the stacker, a secretary in the office performed the duties of the guard shack worker in addition to her secretarial duties. Ingbretson worked the guard shack position when the pain in his elbows made it impossible to perform the stacker job, usually three days per week. His “bid job” remained forklift operator.

At Louisiana-Pacific’s request, Dr. Hvidston examined Ingbretson on September 2, 1993. Dr. Hvidston disapproved the job of fork lift operator for Ingbretson. He approved a job of stacker operator, with the following conditions: “However Vernon relates help for the heavier lumber is not available and this causes pain. If he has repetitive lifting I would not approve.” Dr. Hvidston approved a job of security officer without limitation.

On September 27, 1993, Ingbretson worked the stacker. He told his supervisor that his elbows were sore and asked to be taken off the stacker, but he was not reassigned during that shift. After work, Ingbretson took four Tylenol. He could not sleep that night because of pain in his elbows. Early the next morning, he called Louisiana-Pacific and told the night security guard that he was not coming to work because of his sore elbows. However, he changed his mind and decided to go to work.

At work, Ingbretson told his supervisor that his elbows were sore and that he had no sleep the night before. He was instructed to work at the guard shack. After about two hours, Ingbretson went to his truck, about twelve feet from the gate. He took four more Tylenol and drank a cup of coffee. He sat in the passenger seat of his truck, tilted the seat back, and fell asleep. Ingbretson’s supervisor discovered him sleeping in his truck and fired him.

The Workers’ Compensation Court found that

[Ingbretson’s] falling asleep at work was indirectly, if not directly, attributable to the policies of his employer. On the day prior, [he] was forced to continue working on the stacker despite his pain and his request that he be relieved. As a result, he had a sleepless night. The next morning he initially called in sick but thought better of it. [Louisiana-Pacific] had on prior occasions pressed him to come to work despite pain and doctor’s appointments so it could avoid reporting lost employee time due to an accident. The job he reported to on the morning of his termination was a boring and insignificant one, indeed a position that was filled only when [Ingbretson] was unable to work on the stacker.

The court found that Ingbretson’s discharge was a pretext by which Louisiana-Pacific rid itself of a disabled employee. It determined that Ingbretson was eligible for temporary total disability benefits and awarded him costs and attorney fees, plus a 20 percent penalty for unreasonable refusal to pay his claim.

Issue 1

Did the Workers’ Compensation Court abuse its discretion by deciding an issue not raised in the pretrial order?

The issue to which Louisiana-Pacific here refers was the merits of Ingbretson’s discharge, “resulting in a conclusion that he was wrongfully terminated.” Louisiana-Pacific argues it was entitled to notice that the court was going to determine this issue.

The pretrial order should be liberally construed to permit any issues at trial that are “embraced within its language.” Nentwig v. United Industry, Inc. (1992), 256 Mont. 134, 139, 845 P.2d 99, 102. In the pretrial order, Louisiana-Pacific’s first contention was its defense that Ingbretson was discharged for cause. It is disingenuous for Louisiana-Pacific to now claim surprise that the merits of Ingbretson’s discharge were considered by the court. Because this issue was raised in the pretrial order, we conclude the court did not abuse its discretion by considering it.

Issue 2

Did the court exceed its jurisdiction by deciding that Ingbretson was wrongfully discharged from his employment and did it then err in not applying the provisions of Montana’s Wrongful Discharge from Employment Act?

The Workers’ Compensation Court based its decision on § 39-71-701(4), MCA. That statute allows an employer to avoid paying temporary total disability benefits to an injured employee who has not reached maximum healing by providing a modified or alternative position for the employee. The statute provides:

If the treating physician releases a worker to return to the same, a modified, or an alternative position that the individual is able and qualified to perform with the same employer at an equivalent or higher wage than the individual received at the time of injury, the worker is no longer eligible for temporary total disability benefits even though the worker has not reached maximum healing. A worker requalifies for temporary total disability benefits if the modified or alternative position is no longer available for any reason to the worker and the worker continues to be temporarily totally disabled, as defined in 39-71-116.

(Emphasis added.)

Louisiana-Pacific argues that the decision of the Workers’ Compensation Court amounts to a determination of wrongful discharge, which was outside the jurisdiction of the court. It also contends that even if the Workers’ Compensation Court had jurisdiction to make such a determination, it erred by failing to apply the standards and procedures set forth in the Wrongful Discharge from Employment Act, §§ 39-2-901 through -915, MCA.

In interpreting and applying § 39-71-701(4), MCA, the Workers’ Compensation Court concluded:

On its face, subsection (4) requires payment of temporary total disability benefits to a worker released to perform a modified or alternative job when the alternative or modified position is “no longer available” to him. The Court need not consider whether the “no longer available” language applies in cases where the worker refuses to work in a modified or alternative position, or he is terminated by the employer for deliberate misconduct which he knows, or should know, will result in his termination. This is not such a case. Rather, it is a case where the employer has fired a worker, and thereby made the position unavailable, because of circumstances created by the worker’s occupational disease. Moreover, in this case the employer’s termination of claimant’s employment was pretextual. Under these circumstances, the alternative positions previously available to claimant have become unavailable.

Here, it was not necessary for the court to use the Wrongful Discharge from Employment Act to make its determination. In reaching its decision, the court relied upon its interpretation of the words “no longer available for any reason” in § 39-71-701(4), MCA. The similarity of considerations necessary in applying that statute to those which would be involved in a determination of whether Ingbretson was wrongfully discharged does not mean that the two determinations are the same.

We note that the Workers’ Compensation Court did not make a sweeping interpretation of the phrase “no longer available for any reason.” It interpreted the phrase only as applied to the facts of this case. We conclude that the court did not exceed its jurisdiction in reaching its decision, nor was it required to apply the provisions of the Wrongful Discharge from Employment Act.

Issue 3

Did the court err in finding that Ingbretson was temporarily totally disabled within the meaning of §§ 39-71-116(28) and -701, MCA?

Louisiana-Pacific contends that the overwhelming weight of the evidence was that Ingbretson was not temporarily totally disabled. This contention is based upon the doctor’s releases to perform a modified stacker operator job or a security officer job. Louisiana-Pacific argues that had Ingbretson not left his assigned position and fallen asleep, he would still be employed in those positions.

A two-pronged test is used to prove temporary total disability under § 39-71-116(28), MCA: that the occupational disease results in a total loss of wages, and that the claimant has not reached maximum medical healing. Kramer v. EBI Companies (1994), 265 Mont. 525, 531, 878 P.2d 266, 269. In the present case, it was undisputed that Ingbretson could not return to his “bid job.” Louisiana-Pacific has also conceded that Ingbretson had not reached maximum medical healing at the time he was discharged, thus meeting the second prong of the test.

Louisiana-Pacific points out that Ingbretson was released to perform and did perform the positions of a modified stacker operator and guard shack security officer until he was discharged. The issue then became whether this situation was subject to the exception set forth at § 39-71-701(4), MCA, excusing payment of temporary total disability benefits. Did the modified alternative jobs become “no longer available for any reason,” pursuant to the statute?

Louisiana-Pacific particularly criticizes as unsupported by the evidence the finding that the guard shack job was “a boring and insignificant one.” While not dispositive of the case, this finding is supported in the evidence. Louisiana-Pacific management staff testified that the job was not staffed on day shifts when Ingbretson was not filling it. Ingbretson testified that he did “nothing” when he was stationed in the guard shack.

The record establishes that, on the day before he fell asleep at work, Ingbretson asked to be taken off the stacker position, but the foreman did not do so. The record further establishes that Ingbretson’s previous efforts to take time off work due to his disability had been thwarted. Louisiana-Pacific worked Ingbretson beyond his medical restrictions and caused the episode which triggered this lawsuit.

We conclude that the Workers’ Compensation Court did not err in determining that Ingbretson’s job was “no longer available” under § 39-71-701(4), MCA, and that it did not therefore err in ruling that he was entitled to temporary total disability benefits.

Issue 4

Did the court err in awarding costs and attorney fees to Ingbretson pursuant to § 39-71-611 and § 39-72-402(1), MCA?

Our standard of review is whether substantial credible evidence supports the court’s finding that the employer’s denial of benefits was unreasonable. Stordalen v. Ricci’s Food Farm (1993), 261 Mont. 256, 258, 862 P.2d 393, 394. Louisiana-Pacific’s argument on this issue is dependent on its argument that Ingbretson was not entitled to temporary total disability benefits. In light of our reasoning above in ruling that the court did not err in finding that Ingbretson was entitled to benefits, we hold that substantial credible evidence supports the court’s conclusion that the denial of those benefits was unreasonable and Ingbretson was also entitled to costs and attorney fees.

Issue 5

Did the court err in assessing a 20 percent penalty against Louisiana-Pacific pursuant to § 39-71-2907, MCA?

There is no penalty provision in the Occupational Disease Act. In Wunderlich v. Lumbermens Mut. Cas. Co. (1995), [270 Mont. 404], 892 P.2d 563, we concluded that the Workers’ Compensation Court did not have jurisdiction to assess a § 39-71-2907, MCA, penalty in a dispute arising under the Occupational Disease Act.

Unlike Wunderlich, this is not an appeal from a final determination by the Department of Labor. It is a benefits dispute in which it has already been established that Ingbretson suffered from an occupational disease.

A key element in the Wunderlich opinion is the following:

In contrast, the Workers’ Compensation Court’s jurisdiction under the Occupational Disease Act is much more limited. There, the court reviews on appeal final determinations by the Department regarding occupational disease claims. Section 39-72-612, MCA. The review is statutorily circumscribed!.]

Wunderlich, 892 P.2d at 568. Here, the Workers’ Compensation Court has direct jurisdiction which is not circumscribed by § 39-72-612, MCA, as was the case in Wunderlich.

The Occupational Disease Act provides that “practice and procedure prescribed in the Workers’ Compensation Act applies to all proceedings under this chapter.” Section 39-72-402(1), MCA. The penalty statute, § 39-71-2907, MCA, was not a part of the original Workers’ Compensation Act, and therefore its application is not limited to cases under the Workers’ Compensation Act. In this instance, we agree with the Workers’ Compensation Court that the “practice and procedure” of penalty imposition applies through § 39-72-402(1), MCA.

We affirm the decision of the Workers’ Compensation Court in its entirety.

JUSTICES GRAY, HUNT, NELSON, TRIEWEILER and LEAPHART concur.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER JUSTICE WEBER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CHAD ROTHACHER, Defendant and Appellant.
    No. 94-369.
    Submitted on Briefs April 27, 1995.
    Rehearing Denied September 7, 1995.
    Decided August 11, 1995.
    52 St.Rep. 772.
    272 Mont. 303.
    901 P.2d 82.

      For Appellant: Charles F. Moses, Moses Law Firm, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena; Thomas J. Esch, Flathead County Attorney, Kalispell.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

The defendant, Chad Rothacher, was charged in the District Court for the Eleventh Judicial District in Flathead County with deliberate homicide, in violation of § 45-5-102, MCA. Following a trial by jury, Rothacher was convicted of mitigated deliberate homicide in violation of § 45-5-103, MCA. Rothacher appeals from his conviction. We affirm the judgment of the District Court.

Rothacher raises the following issues on appeal:

1. Did the District Court err when it instructed the jury that it was not necessary for the State to prove that Rothacher intended to cause the death of the victim?

2. Was Rothacher’s conviction of mitigated deliberate homicide supported by substantial evidence?

FACTUAL BACKGROUND

On February 10,1993, Rothacher was charged by information with deliberate homicide. He denied that he was guilty of the crime charged, and therefore, proceeded to trial on February 15, 1994.

At trial, Michael LeClere, an employee and friend of the victim, Ron Raper, testified to the events that occurred on the evening of Raper’s death. He stated that on December 11, 1992, he went with Raper and Susan Michael to the Palace Bar in Whitefish. LeClere and Raper played pool with Rothacher and Rothacher’s friend. Raper and Rothacher began arguing about the pool game. As the argument escalated, Raper and Rothacher agreed to go outside. As LeClere joined them outside, he saw Rothacher hit Raper in the side of the head and then hit Raper in the nose. After he was hit with the second punch, Raper fell on his back and hit his head hard on the ice. LeClere testified that Raper’s head hit the ice with such an impact that it sounded like a bowling ball falling off of a table onto a hard floor. As Raper began to pick himself up from the ground, Rothacher kicked him in the head. Rothacher was then restrained by his friends and together they left the scene. Raper was taken to Kalispell Regional Hospital, where he was treated by Dr. James Mahnke, a neurosurgeon.

Dr. Mahnke testified that when he first saw Raper, he was comatose. A CT-scan revealed extensive bruising on his brain, and Dr. Mahnke determined that this was a serious injury. He performed surgery to remove portions of Raper’s skull and relieve pressure on the brain. However, Raper’s injuries were so great that the surgical procedure was unsuccessful. When asked if, in his opinion, Rothacher’s kick to Raper’s head caused his death, Dr. Mahnke replied, “I think that it most likely did.” The defendant did not object to Mahnke’s opinion regarding the cause of Raper’s death.

Dr. Gary Dale, the State Medical Examiner, and a forensic pathologist, performed a post-mortem examination of Raper at the request of the Flathead County Coroner. It was his opinion, as expressed at trial, that Raper died because of complications from blunt impact injuries to the head.

Witnesses called by the defendant did not deny that Raper was hit in the head by Rothacher, that as a result, he fell to the ground and struck his head, nor that Raper was subsequently kicked in the head by Rothacher.

The jury found Rothacher guilty of mitigated deliberate homicide. His motions for judgment notwithstanding the verdict and for a new trial were denied.

The District Court sentenced Rothacher to 16 years in the Montana State Prison, with all but six years suspended. Rothacher appeals from the judgment of the District Court.

ISSUE 1

Did the District Court err when it instructed the jury that it was not necessary for the State to prove that Rothacher intended to cause the death of the victim?

The standard of review of jury instructions in criminal cases is “[w]hether the instructions, as a whole, fully and fairly instruct the jury on the law applicable to the case.” State v. Brandon (1994), 264 Mont. 231, 237, 870 P.2d 734, 737 (citing State v. Lundblade (1981), 191 Mont. 526, 529-30, 625 P.2d 545, 548).

Rothacher contends that based on historical and commonly accepted notions of criminal jurisprudence, and on the plain language of this State’s penal code, the crime of intentional homicide requires a “specific intent” to cause another’s death and that the District Court erred when it instructed the jury otherwise. The specific instruction to which Rothacher objects is the court’s Instruction No. 14 by which the jury was advised as follows:

In order to convict the defendant of Deliberate Homicide, it is not necessary for the State to prove that the defendant intended to cause [the] death of [the] victim. Death may not be the intended result, but, if the act which causes the death is done purposely, and no circumstances of mitigation, excuse or justification appear, deliberate homicide is committed unless the result is too remote or accidental to have a bearing on the offender [’]s liability or on the gravity of the offense.

(Emphasis added.)

“It is no longer necessary to prove specific intent as an element of the crime unless the statute defining the offense requires as an element thereof specific purpose.” State v. Van Dyken (1990), 242 Mont. 415, 434, 791 P.2d 1350, 1362, cert. denied (1990), 498 U.S. 920, 111 S.Ct. 297, 112 L.Ed. 2d 251 (citing State v. Starr (1983), 204 Mont. 210, 218, 664 P.2d 893, 897). Section 45-5-102, MCA, provides in relevant part that: “(1) A person commits the offense of deliberate homicide if: (a) he purposely or knowingly causes the death of another human being....”

To prove that a person acts knowingly with regard to a result of his conduct does not require that he intended the specific result, but only that he be aware of a high probability that the result will be caused by his conduct. Section 45-2-101(33), MCA. A person acts purposely with respect to a result when it is his or her conscious object to cause that result. Section 45-2-101(58), MCA. However, the statutory meaning of both states of mind must be read in combination with § 45-2-201, MCA, which provides in relevant part that:

(2) If purposely or knowingly causing a result is an element of an offense and the result is not within the contemplation or purpose of the offender, either element can nevertheless be established if:
(b) the result involves the same kind of harm or injury as contemplated but the precise harm or injury was different or occurred in a different way, unless the actual result is too remote or accidental to have a bearing on the offender’s liability or on the gravity of the offense.
For these reasons, we held in Van Dyken that:
[A] defendant can properly be convicted of deliberate homicide even though he may not have intended that the death result from the act where he contemplated the same kind of harm or injury to the victim.

Van Dyken, 791 P.2d at 1362 (citing State v. Sigler (1984), 210 Mont. 248, 265, 688 P.2d 749, 757).

Therefore, while our statutory law does not require proof that Rothacher intended the specific result of his act, it does at least require that he intended a similar kind of harm. It is not sufficient, as indicated in Instruction No. 14, that the act which caused the harm be done purposely without regard to whether any harm was intended. Instruction No. 14 is, however, a correct reflection of our prior decisions on this subject.

Our seminal case, which we conclude has been misapplied in subsequent cases, was Sigler. In that case, the defendant was charged with and convicted of deliberate homicide for causing the death of a 19-month-old child who was left in his care. The child died as a result of blunt force trauma to the abdomen which perforated the small bowel in two places and caused peritonitis. The evidence was that the most likely source for the trauma was a blow from a fist or foot. On appeal, the defendant argued that the district court’s instructions erroneously permitted the jury to convict him simply for purposely engaging in the conduct of striking the child, without requiring the jury to find that he intended the child’s death. After discussing the purposeful and knowing requirement of the deliberate homicide statute in delation to causation, as explained in § 45-5-201(b), MCA, we held that:

Applying § 45-2-201 to this case, the proof is beyond any doubt that the conduct which brought about the perforations to the child’s bowels caused the death of the child, and that without such conduct, the death would not have occurred. In addition, the result involves the same kind of harm or injury as contemplated by the conduct even though the precise harm, the death, was different or occurred in a different way. In other words, if Sigler voluntarily, as the jury found, punched with his fist or kicked with his foot the stomach of the child, even though he may not have intended that death result from the act, he contemplated “the same kind of harm or injury” to the child, that is, harm or injury to the abdominal area of the child.

Sigler, 688 P.2d at 754-55.

On that basis, we held that it was not necessary for the district court to have instructed the jury in that case that the defendant had a specific intent to cause the child’s death. We cited with approval our prior decision in State v. Starr (1983), 204 Mont. 210, 218, 664 P.2d 893, 897, where we held that:

We do not agree with Starr, however, on his contention that it was the duty of the State to prove Starr’s specific intent to transfer a dangerous substance then or at a subsequent time. Since Montana revamped its criminal statutes in 1973 by adopting in essence the Model Penal Code, specific intent is not an elemental concept, unless the statute defining the offense requires as an element thereof a specific purpose.

Sigler, 688 P.2d at 755.

Up to that point, our reasoning was correct, although insufficient to affirm the actual instructions given by the district court. We then added the following language, which was incorrect:

Our criminal law proscribes purposely doing an act which causes the death of another [actually our criminal law proscribes doing an act which purposely causes the death of another]', it also proscribes doing an act with the conscious object of causing the death of another. In the former, death may not be the intended result, but if the act which causes the death is done purposely, deliberate homicide is committed. In the latter, death is the intended result, and any act of the defendant which leads to that intended result is deliberate homicide.

Sigler, 688 P.2d at 755.

Two members of the Court objected to this additional language and pointed out that: “By judicial fiat, the law in Montana is that a defendant who acts with purpose and accidently causes the death of another, is guilty of deliberate homicide.” Sigler, 688 P.2d at 756.

Sigler petitioned for rehearing based on the language that the dissent found objectionable. He correctly contended that the language broadened the definition of deliberate homicide to include the crime of negligent homicide. His point was so obvious that the State agreed that the language was inappropriate, but suggested that Sigler’s conviction be affirmed anyway. Chagrined by the fact that both parties agreed that language in its opinion was inaccurate and objectionable, the majority, in its memorandum in response to the petition for rehearing, stated that:

The Attorney General has thus conceded the major premise of the minority opinion filed with the original in this case. A concession of such broad dimensions does not wring from the Attorney General an admission that Sigler is entitled to a new trial however. Instead the State continues to contend that the jury in the Sigler case was “adequately instructed.”

Sigler, 688 P.2d at 756-57.

In spite of objections by Sigler, which were concurred in by the State, this Court rejected the criticism of its opinion, but clarified its import as follows:

It should be clear, following our original Sigler opinion, that deliberate homicide is committed when a person purposely or knowingly causes the death of another human being; and that the word “causes” in the statutory definition of deliberate homicide must be read in conjunction with section 45-2-201, MCA, which describes what constitutes a causal relationship between the conduct and the result. The original opinion states again what had been stated in Coleman [(Mont. 1979), [185 Mont. 299], 605 P.2d 1000], that a person acts knowingly when there is proof beyond a reasonable doubt that he is aware of the high probability of the result of his conduct. Finally, there is a causal relationship though the result is not within the contemplation of or purpose of the defendant, where the same kind of harm or injury is contemplated by him though the precise harm or injury is different or occurred in a different way.

Sigler, 688 P.2d at 758.

That explanation did little to address the objectionable language. However, given the State’s concurrence in the defendant’s objection, the opinion was amended by inserting “or knowingly” in the objectionable part of the majority opinion so that it then read “but if the act which causes the death is done purposely or knowingly deliberate homicide is committed.”

While the reasoning on which this Court’s decision in Sigler was based was sound, the objectionable language which was referred to in the petition for rehearing, and which the State acknowledged was incorrect, had no place in the opinion and did not logically follow from the preceding reasoning. Nevertheless, it is that language which has found its way into subsequent opinions and formed the basis for Instruction No. 14. See State v. McKimmie (1988), 232 Mont. 227, 231, 756 P.2d 1135, 1138; State v. Byers (1993), 261 Mont. 17, 41, 861 P.2d 860, 875.

It is time to clear up this misperception of the state of mind which must be proven to establish deliberate or mitigated deliberate homicide before a significant injustice results. Our prior construction is clearly contrary to the plain language in the homicide statute and may, in the future, lead to serious and unjust perversion of its purpose.

For these reasons, we conclude that the District Court erred when it instructed the jury that the State merely needed to prove that Rothacher acted purposely, without regard to the result that he intended. To the extent that our prior decisions in Sigler, McKimmie, and Byers are inconsistent with this opinion, they are overruled. District courts should not give a similar instruction in the future.

However, our conclusion that the instruction was erroneous is simply the first part of our analysis. A district court judgment will not be reversed for error which is harmless. Section 46-20-104, MCA. The potential prejudice from Instruction No. 14 could occur where a defendant acted purposefully, but intended no harm. However, there were no facts presented in this case from which an argument could be made that when Rothacher struck his victim in the face and kicked him in the head while he was laying on the ground, he intended no harm. Therefore, Instruction No. 14 was, at worst, superfluous.

Our decision is consistent with decisions of the United States Supreme Court in which that Court has concluded that even instructions which violate the Federal Constitution may be harmless if, based on the entire record, the court concludes that the error was harmless beyond a reasonable doubt.

For example, in Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, the trial judge instructed the jury that it could draw inferences from the defendant’s failure to testify. That instruction was consistent with a provision in California’s state constitution at the time of trial. After trial, but before Chapman’s appeal had been considered by the California Supreme Court, the U.S. Supreme Court decided Griffin v. California (1965), 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106, in which it held that California’s constitutional provision was invalid on the ground that it penalized a person’s invocation of his Fifth Amendment right to not incriminate himself. On appeal, the California Supreme Court held that the instructional error was harmless. The U.S. Supreme Court granted certiorari. On review, it concluded that while some errors are never harmless (such as coerced confessions, right to counsel, or an impartial judge), other constitutional errors, “in the setting of a particular case ... [may] be deemed harmless,” consistent with the Federal Constitution. Chapman, 386 U.S. at 22, 87 S.Ct. at 827. However, that court held that “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman, 386 U.S. at 24, 87 S.Ct. at 828. In that case, the court concluded that the instructional error was not harmless and reversed the California Supreme Court.

The court applied the Chapman test in Rose v. Clark (1986), 478 U.S. 570, 579-80, 106 S.Ct. 3101, 3106-07, 92 L.Ed.2d 460, 471-72, to another situation of instructional error. In that case, the trial court gave an instruction to the jury which impermissibly shifted the burden to the defendant to prove that he acted without malice. In Rose, the defendant was charged with first and second degree murder of his former girlfriend and her new boyfriend in violation of Tennessee law. Malice was an element of second degree murder in Tennessee. The trial court instructed the jury that all homicides are presumed malicious, absent evidence to rebut the presumption, and that, if the state proved beyond a reasonable doubt that a killing occurred, it is presumed to have been done maliciously.

The issue was whether the harmless error standard in Chapman applied to jury instructions which violate the principles set forth in Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. The Court held that it did, and stated that an “otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Rose, 478 U.S. at 576, 106 S.Ct. at 3105. The Court recognized that “constitutional errors may be harmless ‘in terms of their affect on the fact-finding process at trial.’ ” Rose, 478 U.S. at 578, 106 S.Ct. at 3105 (citing Delaware v. Van Arsdall (1986), 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674). The Court concluded that “[w]here a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed.” Rose, 478 U.S. at 579, 106 S.Ct. at 3106.

The Court noted in Rose that the defendant had the opportunity to introduce evidence, and was tried by a fairly selected, impartial jury which was supervised by an impartial judge. Other than the malice instruction, the jury was instructed that it had to find the defendant guilty of every element beyond a reasonable doubt and “[p]laced in context the erroneous malice instruction does not compare with the kind of errors that automatically require reversal of an otherwise valid conviction.” Rose, 478 U.S. at 579, 106 S.Ct. at 3107. The Court observed that when a jury is instructed to presume malice from predicate facts, the jury must still find that the predicate facts exist.

In many cases, the predicate facts conclusively establish intent, so that no rational jury could find that the defendant committed the relevant criminal act but did not intend to cause injury. In that event the erroneous instruction is simply superfluous: the jury has found ... ‘every fact necessary5 to establish every element of the offense beyond a reasonable doubt.

Rose, 478 U.S. at 580-81, 106 S.Ct. at 3107 (citation omitted). The court held that the test was whether, based on the whole record, the error was harmless beyond a reasonable doubt, and remanded for that determination. Rose, 478 U.S. at 583-84, 106 S.Ct. at 3109.

More recently, the Court reiterated the harmless error analysis and set forth the following two-part test in Yates v. Evatt (1991), 500 U.S. 391, 404, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432, 449: (1) the court must ask what evidence the jury actually considered in reaching its verdict, and (2) the court must weigh the probative force of that evidence against the probative force of the presumption.

This Court has followed Chapman. State v. McKenzie (1980), 186 Mont. 481, 608 P.2d 428. In McKenzie, we held that a case must be reviewed as a whole, rather than by examining one component in isolation. Looking only at an instructional error over-emphasizes the instructions in relation to the evidence. McKenzie, 608 P.2d at 458. Evidence was overwhelming and uncontradicted that McKenzie purposely and knowingly killed his victim; a reasonable juror could not have found otherwise based on the proof, notwithstanding improper instructions regarding rebuttable presumptions. We held that the unconstitutional jury instruction was harmless beyond a reasonable doubt, in the context of the undisputed evidence, and concluded that the assigned error could not have contributed to the verdict. McKenzie, 608 P.2d at 459.

In this case, the jury was correctly instructed by the court’s Instruction No. 12 on the meaning of deliberate homicide, and in Instruction No. 17 regarding the lesser included offense of mitigated deliberate homicide. In the court’s Instruction No. 30, the jury was fully informed of that part of § 45-2-201, MCA, which provides that the requirement of purposeful and knowing causation can occur without intending a specific result, so long as the same type of harm or injury was contemplated.

Because Instruction No. 14 did not apply to any facts which were offered as proof in this case (e.g., a negligent homicide situation that could become deliberate homicide as a result of the erroneous language), we conclude, after considering the record as a whole, that the error was harmless beyond a reasonable doubt.

ISSUE 2

Was Rothacher’s conviction of mitigated deliberate homicide supported by substantial evidence?

The standard of review for sufficiency of the evidence is “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” State v. Arlington (1994), 265 Mont. 127, 146, 875 P.2d 307, 318 (quoting State v. Cyr (1987), 229 Mont. 337, 339, 746 P.2d 120, 122).

Rothacher was charged with deliberate homicide, but was convicted of mitigated deliberate homicide. Section 45-5-103(1), MCA, provides that:

A person commits the offense of mitigated deliberate homicide when he purposely or knowingly causes the death of another human being but does so under the influence of extreme mental or emotional stress for which there is a reasonable explanation or excuse.

(Emphasis added).

We have already discussed what must be shown to prove that a result is “knowingly caused.” In this case, Rothacher, himself, admitted hitting and kicking Raper.

Dr. Mahnke testified that, in his opinion, the kick to the head was the blow that most likely killed Raper. While the defendant now objects to that opinion on the basis that Dr. Mahnke was not properly qualified to express it, there was no objection to Dr. Mahnke’s opinion at trial. We have held that “[a]n issue will not be reviewed if it is raised for the first time on appeal.” In re Marriage of Craib (1994), 266 Mont. 483, 496, 880 P.2d 1379, 1387, (citing Erler v. Erler (1993), 261 Mont. 65, 73, 862 P.2d 12, 18).

However, assuming arguendo, that the defendant had made a timely objection on this basis, the result would be the same. We have held that the determinations of qualifications and competency of expert witnesses are within the trial court’s discretion and will not be disturbed absent an abuse of that discretion. Cottrell v. Burlington Northern (1993), 261 Mont. 296, 301, 863 P.2d 381, 384 (citing Foreman v. Minnie (1984), 211 Mont. 441, 445, 689 P.2d 1210, 1212). Dr. Mahnke testified that he earned his undergraduate degree from Harvard, his medical degree from the University of Washington, and interned at the University of Minnesota. Dr. Mahnke also testified that he was on the faculty at Yale and University of California-Irvine medical schools. He testified that he is board certified by the American Board of Neurological Surgery and is licensed to practice in Washington, Connecticut, California, Colorado, New Mexico, and Montana. We conclude that the District Court did not abuse its discretion when it allowed Dr. Mahnke to express his opinion in this case regarding the cause of his patient’s death.

Dr. Gary Dale, the state Medical Examiner, stated that, in his opinion, Raper died as a result of head injuries.

We have held that witness credibility and the weight to be assigned to their testimony is to be determined by the trier of fact, and “disputed questions of fact and credibility will not be disturbed on appeal.” State v. Moreno (1990), 241 Mont. 359, 361, 787 P.2d 334, 336 (citing State v. Green (1984), 212 Mont. 20, 23, 685 P.2d 370, 371-72).

In this case, numerous witnesses testified about Rothacher’s conduct and its relationship to the injuries Raper received. The jury heard sufficient evidence to determine that Rothacher purposely or knowingly caused Raper’s death, but that Rothacher was under extreme stress at the time. We conclude that there was sufficient evidence to support Rothacher’s conviction for mitigated deliberate homicide.

The judgment of the District Court is affirmed.

JUSTICES GRAY, HUNT, NELSON and LEAPHART concur.

JUSTICE WEBER

specially concurs as follows:

I concur with the result in Issue 1, and concur with all of Issue 2.

Under Issue 1, the opinion quotes only Instruction No. 14.1 believe it essential to consider the following additional instructions which were given:

INSTRUCTION NO. 28
A person acts knowingly:
1. when he is aware of his conduct or
2. when he is aware under the circumstances that his conduct constitutes a crime or
3. when he is aware there exists the high probability that his conduct will cause a specific result. [Emphasis supplied.]
INSTRUCTION NO. 29
A person acts purposely with respect to a result or to conduct described by a statute defining an offense if it is the person’s conscious object to engage in that conduct or to cause that result. ... [Emphasis supplied.]

Instructions No. 28 and 29 should be considered along with Instruction No. 14. The pertinent portions of Instruction No. 14 are:

INSTRUCTION NO. 14
In order to convict the defendant of Deliberate Homicide, it is not necessary for the State to prove that the defendant intended to cause death of the victim. Death may not be the intended result, but, if the act which causes the death is done purposely, ... deliberate homicide is committed unless the result is too remote or accidental... [Emphasis supplied.]

The opinion then reached the following conclusions:

Therefore, while our statutory law does not require proof that Rothacher intended the specific result of his act,it does at least require that he intended a similar kind of harm. It is not sufficient, as indicated in Instruction No. 14, that the act which caused the harm be done purposely without regard to whether any harm was intended. ...

The conclusion emphasizes it is not sufficient to prove the act was done purposely without regard to whether any harm was intended. I conclude that Instruction No. 29 satisfies that requirement because it states that a person acts purposely “if it is the person’s conscious object to engage in that conduct or to cause that result.” As a result, I do not agree with the foregoing conclusion of the opinion.

The same basic idea is again set forth in the key conclusion of the opinion as follows:

For these reasons, we conclude that the District Court erred when it instructed the jury that the State merely needed to prove that Rothacher acted purposely, without regard to the result that he intended. To the extent that our prior decisions in Sigler, McKimmie, and Byers are inconsistent with this opinion, they are overruled. District courts should not give a similar instruction in the future.

I disagree with the foregoing conclusion that the District Court erred when it instructed the jury that the State merely needed to prove that Rothacher acted purposely without regard to the result he intended. The matter of the result which Rothacher intended is covered by Instruction No. 29. Under that instruction Rothacher acted purposely if it was his conscious object to engage in that conduct (hitting and kicking the deceased) or to cause the death (of the deceased). When the instructions are read together, I do not conclude that there is a disregarding of the result which Rothacher intended.

I would also emphasize that Instruction No. 28, which defines knowingly, emphasized that it would apply to Rothacher where he is aware there exists a high probability that his acts will cause a specific result — death in this case.

I would affirm the District Court on Issue 1 on the foregoing rationale by considering all instructions given as we are required to do.

CHIEF JUSTICE TURNAGE concurs in the foregoing special concurrence.


author: JUSTICE NELSON JUSTICE WEBER

text:
    WILLIAM LEE JONES, d/b/a JONES EQUIPMENT, Plaintiff and Respondent, v. GARY ARNOLD AND JANISE ARNOLD, f/k/a JANISE AMENT, husband and wife, ROBERT RUBEN HAYES and MAY ROSEMARIE HAYES, husband and wife, VERE SIPES, the Estate of BURTON SIPES, and all other persons, known or unknown claiming or who might claim any right, title, estate or interest in or lien or encumbrance upon the real property described in the Complaint, adverse to Plaintiff’s ownership, or any cloud upon Plaintiff’s title thereto, whether such claim or possible claim be present or contingent, Defendants and Appellants.
    No. 94-425.
    Submitted on Briefs March 9, 1995.
    Decided August 11, 1995.
    52 St.Rep. 779.
    272 Mont. 317.
    900 P.2d 917.

      For Appellants: Raymond P. Tipp; Tipp & Buley, Missoula.
    For Respondent: Don Torgenrud, Attorney at Law, St. Ignatius.
   JUSTICE NELSON

delivered the Opinion of the Court.

The plaintiff, William Lee Jones (Jones), brought this action to attach the proceeds from the sale of certain real property by defendant, Janise Ament Arnold. Following a bench trial, the District Court for the Fourth Judicial District, Missoula County, entered judgment for plaintiff and ordered execution on the proceeds from the sale of the property at issue. The court also concluded that punitive damages were appropriate, subject to a later hearing to determine the amount. From that judgment, defendants appeal. We reverse.

We address the following issues on appeal:

1. Did the District Court err in determining that the series of conveyances of the subject property were fraudulent under § 31-2-314, MCA (1989)?

2. Did the District Court err by failing to determine that the judgment lien was extinguished by operation of law, thus terminating any rights the plaintiff may have to the subject property?

On March 10, 1986, Jones obtained a judgment, against Gary Arnold (Arnold), individually, in the Fourth Judicial District Court, Missoula County. On February 10,1989, Arnold and his wife, Janise Ament Arnold (Ament-Arnold), purchased real property, secured by a trust indenture, from the executors of an estate, Charles and Gladys Hall and Vere Sipes, for $11,883. Under the terms of the sale, Arnold and Ament-Arnold paid $2,000 down, with the remainder due in May of 1989.

Shortly after entering into this agreement, Arnold learned of Jones’ March 10,1986, judgment against him. Unable to borrow money due to this judgment, Arnold and Ament-Arnold quit-claimed the property back to the sellers on April 10, 1989. The property was then purchased by Ament-Arnold’s step-father, James Clark (Clark).

On May 10,1989, Clark executed a quit-claim deed for the property to Ament-Arnold. The deed was made outto “Janise Ament, amarried woman in her own right....” The deed was not recorded until October 3,1990.

On December 12,1990, Ament-Arnold sold the property to Robert and May Hayes (Hayes) under a contract for deed for $38,500. Under the terms of the sale, payments are deposited into an account bearing the name “Janise Arnold.” This is an individual account and not a joint account with her husband.

Jones filed an action on February 15, 1991, seeking to attach the proceeds from the sale to Hayes on the basis that the series of transactions concerning the purchase and sale of the property were fraudulent. Subsequently, on March 10, 1992, Jones filed a motion to renew his judgment. The court granted the motion on March 23,1992, and entered an order renewing the judgment for an additional 6 years.

A bench trial was held on April 12, 1994. The District Court accepted the Agreed Facts as presented in the Pretrial Order, heard testimony and admitted documentary exhibits. Defendants’ motion for a directed verdict was denied.

The District Court entered its Amended Findings of Fact and Conclusions of Law and Judgment on July 6, 1994. The court found that this “series of transfers ... had the effect of removing Gary Arnold from the title,” thereby preventing “execution against the property by Jones ... while the Arnolds retained the ultimate benefit of the transaction.” The court concluded that the series of conveyances were fraudulent, in violation of § 31-2-314, MCA (1989), that Ament-Arnold participated in the fraud, and that actual malice was present.

The court ordered execution on the proceeds from the sale of the property from Ament-Arnold to Hayes and awarded Jones his costs of suit. The court also ordered a subsequent proceeding pursuant to § 27-1-221(7), MCA, to determine punitive damages. The proceeding to determine punitive damages is pending determination of this appeal. Defendants appeal the judgment and the denial of a directed verdict.

The Uniform Fraudulent Conveyance Act (UFCA) was the substantive law in effect in 1989 when the series of transactions at issue took place. The Montana Legislature repealed the UFCAin 1991 and enacted the Uniform Fraudulent Transfer Act (UFTA). Since the UFTA does not expressly state that it is retroactive, we will apply the UFCA, which was the law in effect at the time of the conveyances at issue. McDonald v. Anderson (1993), 261 Mont. 268, 272-73, 862 P.2d 402, 405.

Issue 1

Did the District Court err in determining that the series of conveyances of the subject property were fraudulent under § 31-2-314, MCA (1989)?

The District Court found that the series of conveyances at issue here contained several “badges of fraud” from which the court inferred a “fraudulent intent” in violation of § 31-2-314, MCA (1989). Section 31-2-314, MCA (1989), provides:

Conveyance made with intent to defraud. Every conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors is fraudulent as to both present and future creditors.

This Court will affirm the findings of a trial court sitting without a jury unless the findings are clearly erroneous. Rule 52(a), M.R.Civ.R; Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 322, 820 P.2d 1285, 1287.

In DeSaye, this Court adopted a three-part test to determine if a finding is clearly erroneous. The test provides that: (1) the Court will review the record to see if the findings are supported by substantial evidence; (2) if the findings are supported by substantial evidence, the Court will determine if the trial court has misapprehended the effect of the evidence; and (3) if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still find that a finding is clearly erroneous although there is evidence to support it, if a review of the record leaves the Court with the definite and firm conviction that a mistake has been made. DeSaye, 820 P.2d at 1287.

In applying the DeSaye test to the case before us on appeal, we first review the record to see if the findings are supported by substantial evidence. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion; it consists of more than a scintilla of evidence and may be less than a preponderance of evidence. Yellowstone Basin Properties v. Burgess (1992), 255 Mont. 341, 346, 843 P.2d 341, 344.

The only evidence presented by Jones at trial to support his contention that these conveyances are fraudulent were the deeds for each transfer of the property. There was no evidence presented that would indicate that the transfers were made with actual intent to hinder, delay or defraud Jones as a judgment creditor as prescribed by § 31-2-314, MCA (1989).

The uncontroverted evidence presented at trial showed that Arnold and Ament-Arnold purchased the subject property secured by a trust indenture in February 1989. Under the terms of the agreement, they paid $2,000 down against the total purchase price of $11,883 and were required to pay the remaining $9,883 in May 1989. Unable to secure adequate financing for the May payment due to Jones’ March 10, 1986, judgment lien, they transferred the property back to the original owners rather than be subjected to foreclosure proceedings. Ament-Arnold testified that they lost their original $2,000 investment in the property.

The presumption that private transactions are fair and regular is conclusive unless controverted by other evidence. Lawrence v. Clepper (1993), 263 Mont. 45, 56, 865 P.2d 1150, 1158. Jones presented no evidence at trial to indicate that this conveyance back to the original sellers was made with an intent to defraud him or prevent him from executing on the judgment lien.

Neither did he present any evidence that would indicate that the subsequent purchase of the property by Ament-Arnold’s step-father and the later transfer of the property to Ament-Arnold was done with an intent to defraud Jones and prevent him from executing on the judgment lien. The uncontroverted evidence at trial showed that Clark deeded the property to Ament-Arnold without her or her husband’s knowledge. In order to be a fraudulent conveyance, the transfer must be at the hands of the debtor. Beard v. Myers (1959), 136 Mont. 350, 352-53, 347 P.2d 719, 720.

The District Court relied on Montana Nat. Bank v. Michels (1981), 193 Mont. 295, 631 P.2d 1260, to support its findings that the series of transactions at issue contained “badges of fraud” from which the court inferred a fraudulent intent. In Michels, a husband conveyed all of his property to his wife in consideration of the sum of one dollar even though the fair market value of the property was more than $40,000. Michels, 631 P.2d at 1261. Two months later, the wife conveyed the property to the husband’s uncle. The consideration for this conveyance included payment of numerous creditors of the husband, none of which was owed by the wife. Michels, 631 P.2d at 1262. In addition, after this conveyance, both husband and wife retained possession of the property and continued to live on it without paying any rent. Michels, 631 P.2d at 1264.

Although the District Court found that the series of conveyances in the case before us on appeal contained “badges of fraud” similar to those in Michels, the instant case is distinguishable from Michels in several respects. Unlike the judgment debtor in Michels, where the husband conveyed the property to his wife for one dollar, Arnold did not convey property to his wife. Evidence at trial showed that when Arnold and Ament-Arnold learned of the judgment lien they transferred the property back to the original owners because they were unable to secure financing to pay the obligation secured by the trust indenture. In addition, while in Michels part of the consideration of the sale to the debtor’s uncle included paying many of the judgment debtor’s creditors, there was no evidence presented in the instant case to show that Arnold received any funds from the subsequent sale of the property by Ament-Arnold to Hayes. Finally, while the debtor in Michels continued to live on the property without paying rent, there was no evidence presented in the instant case to show that Arnold retained any possession or control over the property or the proceeds from the sale of the property.

It remained Jones’ burden to prove that the transactions at issue were fraudulent, but there was simply not enough evidence in the record to support a conclusion that he had borne his burden of proof. Applying our test from DeSaye, we conclude that the evidence in the record was not sufficient to support the District Court’s findings that the series of transactions at issue were fraudulent. Accordingly, we hold that the District Court’s findings were clearly erroneous and we reverse the decision of the District Court in that respect.

Issue 2

Did the District Court err by failing to determine that the judgment lien was extinguished by operation of law, thus terminating any rights the plaintiff may have to the subject property?

In order to resolve this issue, it is necessary to keep in mind that there is a difference between a judgment and the lien on real property that is created when a judgment is docketed (judgment lien). Moreover, it is also important to acknowledge that Montana’s statutes provide for distinct times during which a judgment may be enforced, during which an execution on a judgment may be issued, and during which a judgment lien encumbers real property. Finally, one must also appreciate that the ability to execute on a judgment is distinct from whatever additional advantages that a judgment creditor may acquire by virtue of his judgment creating a lien on real property. We will discuss these various legal principles in the context of the facts of this case and the District Court’s decision.

To summarize the following discussion, Montana law provides in separate statutes that a judgment may be enforced for a period of 10 years from docketing, § 27-2-201(1), MCA; that a writ of execution may be issued to enforce a judgment for a period of 6 years from entry, § 25-13-101, MCA, which period may be extended by the court for up to an additional 4 years, § 25-13-102, MCA, and Welch v. Huber (1993), 262 Mont. 114, 862 P.2d 1180; that a judgment lien continues for 6 years following docketing of the judgment and then expires by operation of law, § 25-9-301(2), MCA; and that a judgment may be extended past its 10 year duration only by filing a separate action to obtain a judgment on the judgment, § 27-2-201(1), MCA, and Welch, 862 P.2d at 1181.

In this case, the District Court stated in its findings of fact that Jones’ March 10, 1986, judgment had been “renewed for an additional six year period beginning March 23, 1992.” This finding stems from Jones’ motion to renew the judgment filed on March 10, 1992, which the District Court granted by order on March 23, 1992. Our review of the District Court’s conclusions of law is plenary. We simply determine whether the trial judge’s interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. We conclude that the court’s finding that the judgment, and, implicitly, its legal conclusion that the judgment lien was “renewed” are incorrect.

Under Montana law, liens are creatures of statute. Matter of Estate of Wilhelm (1988), 233 Mont. 255, 262, 760 P.2d 718, 723. With respect to liens created by entry of judgment, the applicable statute provides:

From the time the judgment is docketed, it becomes a lien upon all real property of the judgment debtor not exempt from execution in the county, owned by the judgment debtor at the time or which the judgment debtor may afterward acquire until the lien ceases.

Section 25-9-301(2), MCA. Moreover, the judgment lien so created continues for 6 years unless the judgment is previously satisfied. Section 25-9-301(2), MCA.

Jones’judgment lien sprang into existence and attached to any and all real property, not exempt from execution, owned by Arnold in Missoula County as of March 10, 1986, the date his judgment against Arnold was docketed. That lien continued to exist until it expired by operation of § 25-9-301(2), MCA, 6 years from and after March 10,1986. Moreover, under § 25-9-301(2), MCA, that judgment lien attached to the real property which is the subject of this case when Arnold and his wife purchased the property on February 10, 1989. However, a judgment lien can only attach to the actual interest of the judgment debtor and is subject to all prior liens, whether equitable or legal. Hannah v. Martinson (1988), 232 Mont. 469, 472, 758 P.2d 276, 278-79.

Section 25-13-101(1), MCA, provides that “the party in whose favor the judgment is given may, at any time within 6 years after the entry thereof, have a writ of execution issued for its enforcement.” Accordingly, Jones could have executed on Arnold’s interest in the subject property, during the 6 years from and after March 10, 1986. Section 25-13-101(1), MCA. Furthermore, during the 6-year period that the judgment was a lien, Jones’ ability to execute on Arnold’s interest in the subject real property was not impaired by the subsequent transfers since the lien follows the property. Furthermore, any judgment or decree of any court of this state affecting real property is deemed to impart notice to subsequent purchasers or encumbrancers. Section 25-9-105, MCA. Once a judgment lien expires by operation of § 25-9-301(2), MCA, however, there is no statutory provision which allows the lien to continue past the original 6 years provided by § 25-9-301(2), MCA, or allows it to be “renewed.” In other words, on March 10,1992, Jones’judgment lien on the subject real property terminated and the property thereafter existed free of the judgment lien.

While the judgment lien expired, that is not to say, however, that the judgment itself could not be enforced following the expiration of the lien. Section 25-13-102, MCA, provides:

In all cases, the judgment may be enforced or carried into execution after the lapse of 6 years from the date of its entry by leave of the court, upon motion, or by judgment for that purpose founded upon supplemental pleadings.

Accordingly, Jones’judgment lien on the subject real property terminated by operation of law on the expiration of 6 years from March 10, 1986. The March 10, 1986, judgment continued to exist, however. Thereafter, if Jones desired to execute on that judgment, it was incumbent upon him to obtain a new execution upon motion by leave of court or by judgment for that purpose founded upon supplemental pleadings, in accordance with § 25-13-102, MCA.

' In that respect, and assuming that the procedure set forth in § 25-13-102, MCA, is followed, our recent decision in Welch v. Huber (1993), 262 Mont. 114, 862 P.2d 1180, comes into play. In that case we held that while the time to execute on a judgment could be extended beyond the original 6 years, that time could not be extended beyond the 10 years provided for actions on judgments under § 27-2-201(1), MCA. Welch, 862 P.2d at 1181. Applying those legal principles here, while Jones could obtain an execution on the March 10, 1986, judgment following the expiration of the 6-year execution period, pursuant to § 25-13-102, MCA, his ability to obtain such further execution was limited to an additional 4 years.

Importantly, and contrary to the District Court’s March 23, 1992, order, the original March 10,1986, judgment was not “renewed.” That judgment continued to exist; the judgment lien, however, terminated permanently on the expiration of 6 years from March 10, 1986, and that lien was not “renewed” under the court’s March 23,1992, order.

Moreover, the District Court’s finding that the judgment was renewed for “an additional six year period beginning March 23,1992,” is also incorrect. In Welch we held that while a judgment cannot be extended past 10 years by ex parte motion, nevertheless, a judgment creditor may file an action to extend a district court’s judgment beyond its initial 10-year duration. Welch, 862 P.2d at 1181. In other words, enforcement of a judgment is barred by § 27-2-201(1), MCA, after the judgment’s 10-year duration has expired. Welch, 862 P.2d at 1181. If before that 10-year duration expires the judgment creditor desires to extend the judgment past 10 years, then he must file a separate action on the existing judgment and obtain a new judgment. Section 27-2-201(1), MCA; Welch, 862 P.2d at 1181. From the date that the new judgment on the original judgment is docketed, then it also follows that anew 6 year judgment hen commences to run (§ 25-9-301(2), MCA), and that the provisions of § 25-13-101(1), MCA, § 25-13-102, MCA, and § 27-2-201(1), MCA, would apply, as discussed above.

Accordingly, we hold that the District Comb erred by failing to determine that Jones’ judgment hen was extinguished by operation of § 25-9-301(2), MCA, on the expiration of 6 years from March 10,1986.

Reversed.

JUSTICES GRAY, HUNT, TRIEWEILER and LEAPHART concur.

JUSTICE WEBER

dissents as follows:

Issue 1 considers whether the District Court erred in determining that the series of conveyances were fraudulent. In substance, the opinion concludes that Jones failed to present any evidence which would indicate that the subsequent purchase of the property by Ament-Arnold’s stepfather and the later transfer of the property to Ament-Arnold was done with an attempt to defraud Jones and to prevent him from executing on the judgment lien. The opinion concludes that the uncontroverted evidence showed that Clark deeded the property to Ament-Arnold without her or her husband’s knowledge. I do not agree with those conclusions. The opinion further emphasizes that it was Jones’ burden to prove the transactions were fraudulent and there was simply not enough evidence to support a conclusion that “he had born his burden of proof.” While that conclusion may be correct with regard to Jones only, I believe that it is essential to consider the entire transcript which is primarily the testimony on the part of Gary Arnold (Arnold) and Janise Arnold (Ament-Arnold). I emphasize it is the testimony of the two Arnolds which convinced the District Court that the transactions were fraudulent.

After reviewing the transcript and other evidence, I conclude there is a sufficient basis to affirm the majority of the findings of fact of the District Court. Without exactly quoting, the following are the key aspects of various findings of fact:

1. Jones obtained a judgment against Arnold on March 10, 1986.

2. On February 10,1989, Arnold and Ament-Arnold purchased the property under a contract for $11,000.

4. On April 10,1989, the Arnolds quitclaimed the property back to Sipes (original sellers).

5. On April 18, 1989, Sipes deeded the property by warranty deed under a trust indenture to James Clark, stepfather of Ament-Arnold.

6. On May 10, 1989, James Clark quitclaimed the property back to his stepdaughter, Janise Arnold, using the name of“Janise Ament, a married woman in her own right.”

7. On December 12, 1990, Janise Arnold (Ament-Arnold) sold the property to Hayes for $38,500.

8. The property’s present buyers made payments into an escrow to Janise Arnold (Ament-Arnold) — the proceeds of the escrow have a balance of $23,936.11.

Here I wish to emphasize finding of fact 9 which was incorrect as a matter of law and which I believe has essentially caused the misdirection of the opinion. Finding of fact 9, in effect, pointed out that the series of transfers had the effect of removing Arnold from the title — “[t]his prevented execution against the property by Jones”— while the Arnolds retained the ultimate benefit of the transaction. As a matter of law, as pointed out by the opinion, that is of course incorrect. The lien of Jones’judgment attached to any interest which Arnold had in the property at the time Arnold and Ament-Arnold gained an interest of record. However, I do not conclude that negates the balance of the findings and conclusions of the District Court.

Finding of fact 10 stated in substance that the series of conveyances and transfers between husband and wife to stepfather via the original sellers and back to the wife in her maiden name contained the following badges of fraud from which the court inferred a fraudulent intent:

(a) Lack of consideration of the conveyance from stepfather to Ament-Arnold who is identified by her maiden name in the quitclaim deed.

(b) Familial relationship between stepfather and Ament-Arnold and also between Ament-Arnold and Arnold. The effect of the transfers was to transfer the property from husband and wife to wife alone.

(c) Arnold and Ament-Arnold knew at the time of the conveyances that Jones had an outstanding judgment against Arnold.

(d) The quitclaim deed from stepfather to Ament-Arnold was not filed until seventeen months after it was executed and just two months before Ament-Arnold sold the property. The court inferred that the Arnolds may not have wanted Jones to know about the transfers.

(e) It is an unusual method of business for property to change hands three times in one month-Arnolds to Sipes to stepfather to Ament-Arnold.

(f) The series of transactions had the effect of removing Arnold from the title while allowing Arnold and Ament-Arnold to obtain possession of the 'property and reap the benefit of the sale.

14. The Arnolds’ conduct, resulting in the transfer from both of the Arnolds to Ament-Arnold in her maiden name, was designed to frustrate plaintiff’s efforts at executing on his judgment and to unjustly enrich the Arnolds.

In a brief summary, I will review testimony on the part of Arnold and Ament-Arnold at trial. Arnold testified he did tell his wife’s stepfather about the purchase of the property and did tell him they were not able to buy it and that the stepfather decided to buy it on his own account. Arnold then professed that he had nothing to do with the stepfather’s dealing with the property, including the terms of the purchase. Arnold said that he was not interested in the purchase and that Ament-Arnold had nothing to do with the fact the stepfather purchased the property. He concluded by saying “it was bought for himself.” I emphasize this in order to point out the contradiction between this and the actual effect of the transaction. It is clear that the District Court had substantial credible evidence to conclude this was a fabrication on the part of Arnold.

Ament-Arnold testified that they talked to an attorney who prepared the papers which they signed. She also stated she and Arnold had dinner at her parents’ house and discussed with them what had happened. She told her stepfather about it and the stepfather indicated to her that it would have been a good deal. The stepfather was interested in the property. Ament-Arnold stated that the stepfather was doing something for himself when he bought the property. She further contended she had made no arrangements with him. It is significant here to keep in mind that the Arnolds quitclaimed the property back to the Sipes on April 10, 1989; the Sipes deeded the property to the stepfather on April 18, 1989; and the stepfather deeded the property back to Ament-Arnold on May 10, 1989. Again, it is clearly possible for the District Court to conclude that the testimony was a fabrication. The District Court heard and observed the witnesses.

Ament-Arnold testified with regard to the deed from the stepfather to herself. The deed was kept in his safety deposit box for the next year and a half. That way, if the stepfather died, the property would go to Ament-Arnold.

Ament-Arnold then testified as to how the stepfather was using the proceeds of the sale as a loan to her. She contended the monies would come to her as a loan and she would have to pay the stepfather back. She had emphasized that her stepfather was not in good health. She testified that if her stepfather died then she would pay the estate back the amount of money. Consider this testimony along with the following with regard to the method of taxation.

In testifying that she received the property as a loan, Ament-Arnold stated she had to pay the loan back with interest. When questioned by the District Court, she stated that she paid both the state and federal income tax on the money received from the sale of the property, and that the payment of these taxes was considered to be interest by her stepfather. Again the testimony here clearly affords a basis for the District Court to conclude that, in fact, the entire transaction was considered by the stepfather and the Arnolds to be an original sale by Ament-Arnold under which she would have to pay the income taxes due as a result of the gain from the sale. We may also note the inconsistency between her payment of income taxes and her original claim that the stepfather purchased this for his own benefit.

In its conclusions of law, the District Court held that the badges of fraud identified in the findings of fact demonstrated that the Arnolds engaged in a series of conveyances with the actual intent to hinder, delay or defraud Jones. The District Court concluded the evidence was clear and convincing that the Arnolds acted with actual malice.

Applying the DeSaye test, I conclude there is substantial evidence which a reasonable mind could accept as adequate to support the conclusions of the District Court. I would, therefore, affirm the District Court’s determination that the series of conveyances was fraudulent. I would not find it necessary to determine the question as to the extinguishment of the judgment lien by operation of law as set forth in issue 2.1 would affirm the District Court.

CHIEF JUSTICE TURNAGE concurs in the foregoing dissent.


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ANTHONY CHRIS EICHENLAUB, a/k/a Tony Eichenlaub, and TIMOTHY JOHN CARTER, a/k/a/ Tim Carter, Defendants and Appellants.
    No. 93-215.
    Submitted on Briefs March 30, 1995.
    Decided August 15, 1995.
    52 St.Rep. 786.
    272 Mont. 332.
    901 P.2d 90.

      For Appellant: William F. Hooks, Appellate Defender Office, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Carol Schmidt, Assistant Attorney General, Helena; Christopher G. Miller, Powell Comity Attorney, Deer Lodge.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The defendants, Anthony Eichenlaub and Timothy Carter, were charged with felony kidnapping, in violation of § 45-5-302, MCA, felony sexual intercourse without consent, in violation of § 45-5-503, MCA, and misdemeanor assault, in violation of § 45-5-201, MCA. Following presentation of the State’s evidence, the District Court dismissed the charge of sexual intercourse without consent by accountability which had been filed against Eichenlaub. The defendants were found guilty of the other crimes with which they had been charged. After the jury’s verdict, the District Court entered judgments of conviction, and sentenced each defendant to the Montana State Prison. The defendants appeal from the District Court’s judgments and sentences. We affirm the judgments and sentences of the District Court.

The issues on appeal are:

1. Did the District Court err when it admitted evidence that Eichenlaub assaulted and injured Sue Maxie several days prior to the date of the crimes charged?

2. Did the District Court abuse its discretion when it designated the defendants dangerous offenders for purposes of parole?

3. Did the District Court appropriately consider and discuss alternatives to imprisonment for Eichenlaub?

FACTUAL BACKGROUND

Sue Maxie and Tony Eichenlaub were involved in a turbulent and sometimes physically abusive relationship beginning approximately in February 1992. During their relationship, Sue and Tony separated and reunited several times. From sometime in May to June 9, 1992, Sue lived with Eichenlaub on his mother’s ranch near Ovando.

On approximately June 5 or 6,1992, Sue visited her friend Sheila Welsh in Missoula. Sheila testified that at that time she noticed Sue’s face was bruised and thát hair was missing from the side of her head. Sue’s ex-husband, Robert Maxie, testified that he also saw Sue on June 5 or 6, 1992, and observed similar bruises and missing hair. Sheila and Robert testified that they were concerned about Sue’s safety because of the injuries they observed.

As a result of their concern, Sheila and Robert decided to help Sue leave the ranch. On June 9, 1992, Sheila and Robert drove Robert’s car to the Ovando area on two different occasions. On their first trip, Sheila did not find anyone at the ranch, but left notes for Sue. Sheila and Robert then drove back to Missoula, where they received a telephone call from Sue. They discussed with her a plan to help her leave the ranch, and returned to Ovando to assist her. Sheila dropped Robert off at Clearwater Junction and drove to the ranch property. Sheila testified that when she arrived at the ranch, Sue opened the gate for her and then climbed into Robert’s car with her. Sheila testified that Carter was also standing near the gate and advised them that they could not leave until they told Eichenlaub of their intentions.

Sheila and Sue drove to a cabin where Eichenlaub had been sleeping to advise him they were leaving. They testified that a physical altercation followed, during which they were beaten by the defendants.

After this incident, Sheila testified that Carter took her outside where he assaulted her, and ultimately to a trailer where he forced her to have sexual intercourse. Sheila testified that when Eichenlaub came into the trailer, she asked him for help, but that he responded that she was getting what she deserved. Sue testified that Eichenlaub took her to the trailer where Sue observed Sheila and Carter lying naked in the bed and noticed that there was blood on Sheila’s face and on the pillow.

Eventually Sue walked to the highway where she stopped a passing truck driver and asked for a ride. However, while she was climbing into the truck, Eichenlaub pulled her down from the truck and took her back to the ranch. The truck driver called 911 to report the incident at a nearby phone booth.

Robert Maxie testified that sometime during the several hours that had transpired that evening he jogged and walked from Clearwater Junction to the ranch and hid in the back of his car. Finally, Sheila and Sue were able to get into the car, left through a gate which had been recently opened, and returned to Missoula.

On June 12,1992, Sheila and Sue traveled to Deer Lodge to report what had happened to the police. Later that day, the defendants were arrested and were subsequently charged by information with kidnapping, in violation of § 45-5-302, MCA, sexual intercourse without consent, in violation of § 45-5-503, MCA, and misdemeanor assault, in violation of § 45-5-201, MCA.

At trial, after the State presented its evidence, the District Court dismissed the charge of sexual intercourse without consent by accountability which had been filed against Eichenlaub. The jury found the defendants guilty of the remaining charges. The District Court entered judgments of conviction against the defendants, and designated both dangerous offenders. Eichenlaub was sentenced to the Montana State Prison for six months for assault, and six years for kidnapping. The sentences are to be served concurrently. Carter was sentenced to the same terms as Eichenlaub for the assault and kidnapping convictions, plus another four years for sexual intercourse without consent. The additional four years are to be served consecutively.

ISSUE 1

Did the District Court err when it admitted evidence that Eichenlaub assaulted and injured Sue Maxie several days prior to the date of the crimes charged?

The defendants contend that the District Court erred when it allowed evidence of Eichenlaub’s prior bad acts, because the State failed to give the defendants prior notice of its intent to offer the evidence. State v. Matt (1991), 249 Mont. 136, 814 P.2d 52; State v. Croteau (1991), 248 Mont. 403, 407, 812 P.2d 1251, 1253; State v. Just (1979), 184 Mont. 262, 602 P.2d 957. The four photographs at issue show that Sue was missing clumps of hair and had scratches on her face as a result of a physical altercation with Eichenlaub four days prior to the date of the acts for which the defendants were charged. Defendants objected to the photographs, stating they were irrelevant “because it has already happened way before this incident even took place.” Although they did not specifically mention Rule 404(b), M.R.Evid., we will construe their objection as based on that rule.

The State responds that the photographs were admissible as part of the res gestae or corpus delicti, but that if the court erred when it admitted the photographs, the error was not prejudicial. We agree that any error was not prejudicial.

Section 46-20-701, MCA, states, in relevant part, that “[n]o cause shall be reversed by reason of any error committed by the trial court against the appellant unless the record shows that the error was prejudicial.” When prejudice is alleged in a criminal case the prejudice will not be presumed, rather, it must be established from the record that a substantial right was denied. State v. Wells (1983), 202 Mont. 337, 349, 658 P.2d 381, 388. In Wells, we also stated that the test is whether there is a reasonable possibility that the inadmissible evidence might have contributed to a conviction. Wells, 658 P.2d at 388 (citing State v. LaVe (1977), 174 Mont. 401, 407, 571 P.2d 97, 101); State v. Bower (1992), 254 Mont. 1, 6, 833 P.2d 1106, 1109. In Bower, we added that when assessing the potentially prejudicial effect of an error, we examine the totality of the circumstances in which the error occurred. If the issue involves inadmissible evidence, we will not evaluate the evidence in isolation because that would risk magnifying the error beyond the impact it had on the verdict. Bower, 833 P.2d at 1109.

With these principles in mind, and after a thorough review of the transcript, we conclude that admitting the photographs did not constitute prejudicial error. The photographs show injuries Sue received from fights she had with Eichenlaub on June 5, 6, or 7. She testified that the photographs were taken by the police on June 12 behind the police station in Deer Lodge after Sue and Sheila reported the events that occurred on June 9.

At trial, during Sue’s testimony, the State moved to admit the photographs. The defendants, who had declined the public defender’s representation to represent themselves, objected. Before the photographs were admitted, and in the presence of the jury, Carter was allowed to voir dire Sue regarding the photographs. Carter asked Sue, “[a]nd isn’t it true that you said that on June 5th ‘Tony pulled hair out of the sides of my [Sue’s] head.’ ” Later he asked, “[o]n another time, you said that ‘On June 7th Tony pulled hair out of the top of my [Sue’s] head.’ Is that true?” He added, “[a]nd scratched my [Sue’s] face?” Sue responded that what Carter stated in voir dire was true. After dismissing the jury and hearing arguments, the court admitted the photographs.

Before the photographs were admitted, Carter’s voir dire explained what the photographs illustrated. Additionally, and without objection, Sue had previously responded to one of the State’s questions about the events of June 9 by stating that, “by then Sheila was mad, she had seen what Tony had already done to me, the scratches on my face, the hair pulled out....” Therefore, before the photos were admitted, and without objection by the defendants, the jury was aware of the prior attacks, the dates on which they occurred, and the nature of the injuries sustained. The photographs did not inform the jury of anything they did not already know.

Without reaching the merits of the State’s res gestae argument, we conclude that even if the admission of evidence of Eichenlaub’s earlier attacks was in violation of Rule 404(b), under the totality of the circumstances, it was not prejudicial error.

ISSUE 2

Did the District Court abuse its discretion when it designated the defendants dangerous offenders for purposes of parole eligibility?

We review a district court’s dangerous offender designation to determine whether the district court abused its discretion. State v. Buckman (1989), 236 Mont. 37, 41, 768 P.2d 1361, 1363.

The defendants contend that the District Court abused its discretion when it designated them dangerous offenders because it made no findings to support such a designation, and there was no evidence to support such findings if they had been made. Based on our review of the record, and the District Court’s findings in support of its judgment, we disagree.

The designation of an offender as either dangerous or non-dangerous is governed by § 46-18-404, MCA, which provides in pertinent part:

(1) ... [T]he sentencing court shall designate an offender a non-dangerous offender for the purposes of eligibility for parole ... if:
(a) during the five years preceding the commission of the offense for which the offender is being sentenced, the offender was neither convicted of nor incarcerated for an offense committed in this state or any other jurisdiction for which a sentence to a term of imprisonment in excess of 1 year could have been imposed; and (b) the court has determined, based on any presentence report and the evidence presented at the trial and the sentencing hearing, that the offender does not represent a substantial danger to other persons or society.

(Emphasis added.) This statute sets forth a two-pronged test in subparagraphs (a) and (b). If both are satisfied, a defendant must be designated nondangerous. If one or the other prong is satisfied, the district court may, in its discretion, designate the offender as dangerous for purposes of parole. Buckman, 768 P.2d at 1363.

In Buckman we stated that, “[w]hen using its discretion to determine offender status, the District Court ‘may consider persistence in criminal conduct and failure of earlier discipline to deter or reform the defendant.’ ” Buckman, 768 P.2d at 1363 (quoting State v. Nichols (1986), 222 Mont. 71, 80, 720 P.2d 1157, 1163). The sentencing court must articulate its reasons for designating an offender as dangerous, rather than merely recite the statutory language of § 46-18-404(1)(a) and (b), MCA. State v. Morrison (1993), 257 Mont. 282, 287-88, 848 P.2d 514, 517.

In each defendant’s judgment of conviction and sentence, the District Court incorporated its findings of fact entered after the sentencing hearing. In its findings, the District Court set forth reasons for its dangerous offender determination.

The District Court articulated numerous reasons for designating Eichenlaub as a dangerous offender. The court identified his chemical dependency problem, and the fact that despite treatment, he continued to drink and engage in unlawful acts. It referred to numerous misdemeanor convictions and a juvenile record. The District Court found that Eichenlaub’s behavior during trial demonstrated a lack of remorse, disrespect for and defiance of the law and its officers, and a failure to recognize that his unlawful actions were wrong. Finally, the District Court found that he posed a threat to the public and the victims.

The District Court also articulated its reasons for designating Carter a dangerous offender. The court noted that he also had a chemical dependency problem, yet despite treatment, continued to drink and engage in unlawful acts. He had two prior felony convictions in 1981 and 1982. His actions in the present case involved physical abuse, restraint, and sexual intercourse without consent. The District Court found that Carter’s behavior during the trial demonstrated lack of remorse, disrespect for and defiance of the law and its officers, and a failure to recognize that his unlawful actions were wrong. The District Court found that he posed a threat to the public and the victims.

The District Court clearly articulated reasons in support of its determination that the defendants presented a danger to society and the victims. Its reasons are fully supported by the record. We hold that the District Court did not abuse its discretion when it designated the defendants dangerous offenders for the purposes of parole.

ISSUE 3

Did the District Court fail to appropriately consider and discuss alternatives to imprisonment for Eichenlaub?

Eichenlaub contends that the District Court failed to appropriately consider and discuss alternatives to his imprisonment in violation of §§ 46-18-201(10), -225, -104(3), and -104(2), MCA (1991), and therefore, that his sentence should be vacated and his case remanded for resentencing.

The State responds that the District Court’s reasons for designating Eichenlaub a dangerous offender are sufficient to rule out alternatives to imprisonment. We agree.

To require the District Court to consider alternatives to imprisonment and specify the reasons why those alternatives were not selected after the District Court has already designated a convicted felon a dangerous offender exalts form over substance.

Of those criteria for determining whether “nonviolent” offenders should be sentenced to prison which are set forth in § 46-18-225, MCA, the most conclusive consideration is found in subparagraph (1) which refers to the “needs of public safety.” We conclude that the needs of public safety were adequately considered by the District Court when it set forth in its findings in support of its sentence the reasons why it considered Eichenlaub dangerous. Those findings include the following:

(15) Anthony Eichenlaub is now 21 years of age, of low average intelligence with an 11th grade education, in good health, has never married but has three children whom he does not support, and very little work history or experience. He seems to acknowledge having a drinking and chemical dependency problem, and has previously gone through the alcohol treatment program at Galen State Hospital, but still continues to drink and create problems for himself by unlawful actions.
(16) Mr. Eichenlaub has a lengthy juvenile record in Missoula County, including sexual intercourse without consent when he was 13 years old, and six misdemeanor convictions since becoming of age, including resisting arrest, and then a second DUI and two related misdemeanors in Lewis and Clark County while he was out on bond awaiting trial in this case. Tony’s actions in this case involved physical abuse and restraint of a live-in girlfriend, Susan Maxie, and the evidence indicated he had also been physically violent toward his father.
(19) Neither defendant has shown any remorse whatever to the victims herein, and the attitude of both Carter and Eichenlaub in this whole proceeding has been one of disrespect for and defiance of the law and its officers, indifference to the needs of their children and families, continual complaining of the criminal justice system, unjustifiably placing the blame for what has happened to them on others, and seeing nothing wrong with their unlawful actions. As a result, and in view of their prior records, the court finds both defendants pose a very real and substantial threat to the public in general, and the victims of the present case in particular, and that they are dangerous offenders, which was stated orally at sentencing.

(Emphasis added.)

In addition, the court noted in its findings that both probation officers who testified at the sentencing hearing recommended prison terms for both defendants.

By these findings, the District Court did, as a practical matter, satisfy the requirements of §§ 46-18-201(10) and -225, MCA. To remand to the District Court for further findings to the same effect would be redundant and would serve no practical purpose.

For these reasons, we affirm the judgments and sentences of the District Court in their entirety.

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