author: JUSTICE NELSON JUSTICE LEAPHART,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BECKY L. RICHARDS, Defendant and Appellant.
    No. 93-429.
    Submitted on Briefs July 27, 1995.
    Decided Nov. 22, 1995.
    52 St.Rep. 1176. 906 P.2d 222.
    274 Mont. 180.

      For Appellant: William Boggs, Missoula.
    For Respondent: Robert L. Deschamps, III, Missoula County Attorney, Missoula; Hon. Joseph P. Mazurek, Attorney General, Patricia Jordan, Assistant Attorney General; Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

Defendant Becky Richards (Richards) was convicted by a jury in the District Court for the Fourth Judicial District, Missoula County, of one count of deliberate homicide and forty-nine counts of related economic crimes involving theft, forgery and deceptive practices. Richards was sentenced to life imprisonment in the Women’s Correctional Facility on the deliberate homicide count. She received suspended sentences on the economic counts and was ordered to pay restitution in the amount of $68,968.60. Richards was designated a dangerous offender for purposes of parole eligibility. She appeals those, convictions. We affirm.

We address the following issues on appeal:

1. Was the evidence sufficient to support Richards’ conviction on Counts 1, 3, 4, 48 and 55?

2. Did the District Court err in denying Richards’ motion to sever the economic counts from the deliberate homicide count?

Background Facts

On October 22, 1992, Richards was charged by information with one count of deliberate homicide, fifty-one counts of felony theft, seven counts of felony forgery and one count of felony deceptive practices. The information charged that on March 5, 1992, Richards caused the death of her husband by shooting him in the head with a pistol. The majority of the other fifty-nine counts alleged that Richards had obtained or exerted unauthorized control over funds from her husband’s business, Richards Logging, while she was acting as bookkeeper for the company. Six of the counts alleged various economic crimes by Richards against other parties.

On January 19, 1993, defense counsel filed a motion to sever all of the fifty-nine economic counts from the deliberate homicide count. The District Court denied the motion and Richards went to trial on all sixty counts. During the trial, one count of felony theft was dismissed by the court and one count of felony forgery was reduced by the State to misdemeanor forgery. After deliberating for four days, the jury found Richards guilty on the deliberate homicide count and forty-nine of the economic counts including the count that had been reduced to misdemeanor forgery.

Richards was sentenced to six months in the Missoula County Jail on the misdemeanor forgery charge and ten years in the Women’s Correctional Facility on each of the remaining economic counts. Richards’ sentence on each of these counts was suspended and she was ordered to pay restitution in the amount of $68,968.60. Richards was sentenced to life imprisonment on the deliberate homicide charge and she was designated a dangerous offender for the purpose of parole eligibility. Richards appeals these convictions.

Issue 1

Was the evidence sufficient to support Richards’ conviction on Counts 1, 3, 4, 48 and 55?

We review the sufficiency of the evidence to determine 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).

In Counts 1, 3 and 4, Richards was charged with forgery pursuant to § 45-6-325, MCA (1991). This statute provides, in pertinent part:

(1) A person commits the offense of forgery when with purpose to defraud he knowingly:

(a) without authority makes or alters any document or other object apparently capable of being used to defraud another in such maimer that it purports to have been made by another or at another time or with different provisions or of different composition;

(b) issues or delivers such document or other object knowing it to have been thus made or altered;

(2) A purpose to defraud means the purpose of causing another to assume, create, transfer, alter, or terminate any right, obligation, or power with reference to any person or property.

With respect to Count 1, the evidence showed that four checks made payable to Missoula Plans Exchange, were endorsed and cashed by Richards and that she pocketed the cash. The evidence further showed that as receptionist for Missoula Plans Exchange, Richards had authority to endorse the company’s name on checks for deposit into the company’s bank account, but she did not have the authority to endorse the company’s name in order to cash checks for her own use. When an agent exceeds his authority with respect to an instrument in writing, with intent to defraud, the offense of forgery is committed. State v. Daems (1934), 97 Mont. 486, 496, 37 P.2d 322, 327.

The evidence on Count 3 showed that two postal money orders made out to Blackfoot Parish were purportedly purchased by Richard McNeely, former Pastor of the parish, to reimburse the parish for personal expenses it paid on behalf of McNeely. However, McNeely testified that he knew nothing about these money orders. The testimony further showed that the money orders were intended to cover up Richards’ diversion of parish funds to her own use while she was bookkeeper for the parish. Inserting McNeely’s name on the money orders, with the knowledge that he had not given authority for the use of his name and with an intent to defraud the parish, constitutes forgery. Section 45-6-325, MCA (1991).

With respect to Count 4, the evidence showed that a money order made payable to “Jim & Becky Richards” as payment for rental property owned by Jim Richards was altered by Richards after her husband’s death to read “Jim or Becky Richards” and cashed by Richards. Jim Richards’ estate was thereby defrauded of its interest in these funds.

In Count 48, Richards was charged with deceptive practices pursuant to § 45-6-317, MCA (1991). The evidence showed that, in applying for a loan, Richards represented to Norwest Financial that two snowmobiles owned by Richards Logging were free of liens and available as collateral for the loan. Richards failed to disclose to Norwest Financial that these snowmobiles were encumbered by a prior lien to First Interstate Bank.

Section 45-6-317, MCA (1991), provides, in pertinent part:

(1) A person commits the offense of deceptive practices when he purposely or knowingly:

(c) makes or directs another to make a false or deceptive statement to any person respecting his financial condition for the purpose of procuring a loan or credit....

The offense of deceptive practices is complete upon the knowing or purposeful making of a false financial statement. See State v. Cassill (1924), 70 Mont. 433, 438-39, 227 P. 49, 52.

In Count 55, Richards was charged with theft pursuant to § 45-6-301, MCA (1991). The evidence showed that Richards Logging purchased a 1989 Indy Trail Polaris snowmobile on December 30, 1991, and sold it on January 10, 1992. The payee line on the check received from the purchaser of this snowmobile was filled in by Richards with her name and the check was deposited into her account. Testimony at trial showed that Richards Logging never received payment for the sale of this company asset.

Section 45-6-301, MCA (1991), provides, in pertinent part:

(1) A person commits the offense of theft when he purposely or knowingly obtains or exerts unauthorized control over property of the owner and:

(a) has the purpose of depriving the owner of the property .... We conclude that after viewing the evidence on Counts 1, 3, 4, 48 and 55 in the light most favorable to the prosecution, a rational trier of fact could find the essential elements of the crimes charged in each of these counts beyond a reasonable doubt. Accordingly, we affirm Richards’ conviction on Counts 1, 3, 4, 48 and 55.

Issue 2

Did the District Court err in denying Richards’ motion to sever the economic counts from the deliberate homicide count?

Our inquiry into issues regarding joinder and severance is twofold. First, we must determine whether joinder of the offenses in the information is proper. Second, we must determine whether severance of the offenses is necessary to prevent prejudice to the defendant.

The District Court determined that joinder was proper in this case under § 46-11-404, MCA, since the economic crimes establish the motive for the homicide and overlapping proof must be offered. Section 46-11-404, MCA, provides, in pertinent part:

(1) Two or more offenses ... maybe charged in the same charging document in a separate count, or alternatively, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same transactions connected together or constituting parts of a common scheme or plan. Allegations made in one count may be incorporated by reference in another count.

The State argues that the embezzlement from Richards Logging provided the motive for Richards to kill her husband. On the day he was killed, Jim Richards was reviewing the books for Richards Logging and was about to discover a $10,000 overdraft at the bank and numerous unauthorized checks written by Richards. The State maintains that Richards killed her husband to prevent him from discovering her embezzlement of funds from the company.

Joinder is proper where the offenses are logically linked by motive and where overlapping proof must be offered. State v. Baker (1989), 237 Mont. 140, 144, 773 P.2d 1194, 1197 (citing United States v. Hoelker (9th Cir. 1985), 765 F.2d 1422, 1425). Additionally, the State argues that the six economic crimes that were not part of the embezzlement from Richards Logging were “of the same or similar character” or “based on the same transactions connected together or constituting parts of a common scheme or plan” as the other fifty-three economic counts.

After reviewing the record, we agree with the District Court that separate trials would require overlapping evidence and many of the same witnesses and that the economic crimes supplied the motive for the homicide and were therefore properly joined. Furthermore, joinder is proper in cases where the second charge, in this case the deliberate homicide, is precipitated by a previous charge, the economic crimes. State v. Bingman (1987), 229 Mont. 101, 109, 745 P.2d 342, 347.

Our second inquiry is whether the motion to sever should have been granted under § 46-13-211, MCA, because of prejudice to the defendant. Section 46-13-211, MCA, provides in pertinent part:

(1) If it appears that a defendant or the prosecution is prejudiced by a joinder of charges or defendants in an indictment, information, or complaint or by a joinder for trial together, the court may order separate trials, grant a severance of defendants, or provide whatever other relief justice requires.

Prior to trial, Richards moved to sever the deliberate homicide count from the economic counts contending that joinder prejudiced her unfairly. She did not, however, separately move to sever the Richards Logging economic counts and the economic counts not involving Richards Logging; her motion simply encompassed all economic counts. The District Court determined that Richards had not made a sufficient showing of prejudice mandating severance and therefore denied her motion.

In determining whether to grant a motion to sever, the trial court must balance the possibility of prejudice to the defendant against the judicial economy which results from a joint trial. State v. Campbell (1980), 189 Mont. 107, 120, 615 P.2d 190, 198. Judicial economy weighs heavily in the balancing process. Campbell, 615 P.2d at 198. In the past, this balancing process has been left to the sound discretion of the trial judge and absent an abuse of that discretion, we will not substitute our judgment for that of the trial court. Campbell, 615 P.2d at 198 (citing United States v. Cuesta (5th Cir. 1979), 597 F.2d 903, 919).

The burden of showing prejudice rests on the defendant. State v. Orsborn (1976), 170 Mont. 480, 489, 555 P.2d 509, 515. In showing prejudice, it is not sufficient that the defendant prove some prejudice or that a better chance of acquittal exists if separate trials are held. Campbell, 615 P.2d at 198; State v. Slice (1988), 231 Mont. 448, 451, 753 P.2d 1309, 1311. Rather, the defendant must show the prejudice was so great as to prevent a fair trial. Campbell, 615 P.2d at 198; Baker, 773 P.2d at 1198.

The factors that provide the basis for the predisposition for joint trials include the expeditious administration of justice, reduction of congestion in trial dockets, conservation of judicial time, reduction of burden on citizens who serve on juries in terms of time and money sacrificed, and avoidance of the necessity of recalling witnesses who otherwise would have to testify only once. Campbell, 615 P.2d at 198 (citing United States v. Brady (9th Cir. 1978), 579 F.2d 1121, 1128, cert. denied, 439 U.S. 1074, 99 S.Ct. 849, 59 L.Ed.2d 41 (1979)).

We first addressed the issue of prejudice to a defendant from a joinder of charges in State v. Orsborn (1976), 170 Mont. 480, 555 P.2d 509. In Orsborn, we stated that there are three types of prejudice that may occur on consolidation of charges. First, prejudice may occur when the jury considers a person facing multiple charges to be a bad man and tends to accumulate evidence against him until it finds him guilty of something. Second, prejudice may occur when proof of guilt on the first count in an information is used to convict the defendant of a second count even though the proof would be inadmissible at a separate trial on the second count. The third kind of prejudice occurs when the defendant wishes to testify on his own behalf on one charge but not on another. Orsborn, 555 P.2d at 515.

The first type of prejudice, resulting from a defendant being held out to the jury as an habitual offender, is not alone sufficient to warrant severance. Orsborn, 555 P.2d at 515; Campbell, 615 P.2d at 198; Slice, 753 P.2d at 1311. As in the case before us on appeal, the defendant in Slice was charged with numerous economic crimes. In that case, the Court determined that the fact that the jury acquitted Slice on two of the counts indicated that they had considered the counts separately. Similarly, in the case before us, the jury acquitted Richards on nine counts after deliberating for four days. Richards has failed to show that the jury considered her a bad person because of the number of charges against her or that the jury accumulated evidence against her until finding her guilty of the charges.

The second type of prejudice is present when the jury uses proof of guilt on one count in an information to convict a defendant on another count even though the proof would have been inadmissible at a separate trial on the second count. However, no prejudice of this nature will be found when the evidence presented at a joint trial is simple and distinct. Campbell, 615 P.2d at 199; Orsborn, 555 P.2d at 515.

Here, the State argues that the evidence on the deliberate homicide charge was sufficiently distinct in order to allow the jury to separate it from the evidence on the economic counts. Furthermore, the State argues that the jury was instructed that each count charged was a distinct offense and must be decided separately. The fact that the jury took four days to deliberate and acquitted Richards on nine counts shows that they did decide each count separately.

The third type of prejudice, where the defendant wishes to testify on one count and not on the others, only has merit if the offenses were “totally separate as to time, place and evidence.” Orsborn, 555 P.2d at 515. Richards did not testify at trial, however, the State introduced into evidence several statements she gave to law enforcement officers where she talked about all of the crimes charged, including the homicide.

Richards has failed to show prejudice so great as to prevent a fair trial. Accordingly, we hold that the District Court did not err in denying Richards’ motion to sever the economic counts from the deliberate homicide count.

Finally, Richards argues that the abuse of discretion standard for severance determinations has been subject to criticism. Adopting the position of a leading commentator, Richards maintains that if the trial judge denies the defendant’s severance motion for failure to demonstrate prejudice, experience dictates that it is virtually impossible to prevail on appeal. See, Slice, 753 P.2d at 1311. Richards contends that we should, instead, adopt the approach embodied in the ABA Criminal Justice Standard 13-3.1 and the Uniform Rules of Criminal Procedure, Rules 471(a) and 472, which provide substantially stricter standards for severance determinations. While we agree that Montana’s present statutory scheme (which basically tracks Rules 8(a) and 14 of the Federal Rules of Criminal Procedure) reposes in the trial court a great deal of discretion in determining whether to grant a motion for severance; that our present statute places a difficult burden, indeed, on the accused; and that the ABA Standard and Uniform Rules provide a more cut-and-dried approach to this issue, Richards’ arguments are more appropriately addressed to the legislature. Importantly, the record in this case fails to demonstrate that Richards was prejudiced by application of our current statutory scheme.

Affirmed.

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

JUSTICE LEAPHART,

dissenting.

Although § 46-11-404, MCA, provides that different offenses may be joined in the same charging document if the offenses are “of the same or similar character, or are based on the same transactions connected together or constituting parts of a common scheme or plan,” I firmly believe that requiring the defendant to go before a jury to defend one count of homicide and 59 counts of theft/forgery offends fundamental fairness. See State v. Thiel (1989), 236 Mont. 63, 66, 768 P.2d 343, 345. Whether there is merit to any of the numerous counts, human nature is such that the average juror is going to consider the fact that the defendant has been charged with 60 counts of criminal conduct and conclude, “where there’s smoke there’s fire.” Although this Court has previously held that the “prejudice resulting from the jury believing the defendant to be a bad [woman] because of multiple charges — has seldom been found sufficient to warrant severance,” State v. Campbell (1980), 189 Mont. 107, 121, 615 P.2d 190, 198 (citing State v. Orsborn (1976), 170 Mont. 480, 489, 555 P.2d 509, 514-15), I am of the opinion that the filing of 60 counts in order to convict on one count of homicide is beyond the pale.

Although I agree that it was necessary for the State to prove that Becky Richards had a motive to kill her husband by showing that she wanted to dispose of him before he discovered that she had been illegally depleting the Richards Logging checking accounts, I strongly reject the manner in which this evidence was presented. I do not believe that it was necessary or appropriate for the State to prove motive through the filing of 59 different counts of property related offenses, including 6 counts that were totally unrelated to Richards Logging. The State could have achieved its purpose by consolidating the theft/forgery charges into a relatively small number of counts or, better yet, it should have simply charged Richards with homicide and presented the “other crimes” evidence under the strictures of Rule 404(b), M.R.Evid., or as res gestae evidence. Rule 404(b) is designed to accommodate “other crimes” evidence if such evidence meets certain requirements, one of which is that other crimes evidence, although relevant, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or needless presentation of cumulative evidence. State v. Matt (1991), 249 Mont. 136, 142, 814 P.2d 52, 56. By charging 59 separate property offenses, the State circumvented the probative value versus potential prejudice test of Rule 404(b) and put itself in a position to present exhaustive evidence related to 59 property offenses regardless of the fact that such an approach was highly prejudicial to the defendant. In other words, through abuse of its charging discretion, the State was able to do that which is clearly contrary to the spirit and letter of Rule 404(b); that is, paint the defendant as criminally disposed and of a bad character; an “avaricious, self-centered, scheming and compulsively dishonest woman....”

By filing a 60-count charging document, the State was able to engender a latent feeling of hostility towards the defendant. There is no doubt in my mind that when a defendant walks into a courtroom charged with 60 counts of criminal activity, the presumption of innocence goes out the back door. Given that the State’s purpose in charging the property offenses was to prove defendant’s motive for the homicide charge, the property offenses should have been handled as res gestae or “other crimes” under Rule 404(b). It was prosecutorial overreaching to thwart Rule 404(b) by charging each of these 59 events as a stand-alone offense. I dissent.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    ANNABELLE GLENN, Plaintiff and Respondent, v. SIGNE GROSFIELD, EDWIN GROSFIELD (deceased), and ABE GROSFIELD, Defendants and Appellants.
    No. 95-190.
    Submitted on Briefs September 13, 1995.
    Decided November 21, 1995.
    52 St.Rep. 1150.
    906 P.2d 201.
    274 Mont. 192.

      For Appellant: Norman H. Grosfield, Utick & Grosfield, Helena. For Respondent: Guy W. Rogers, Brown, Gerbase, Cebull, Fulton, Harman & Ross, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The plaintiff, Annabelle Glenn, filed a complaint and application for preliminary and permanent injunction in the District Court for the First Judicial District in Lewis and Clark County in order to compel defendants, the Grosfields, to remove a fence they had erected across a roadway which provided access to Glenn’s property. The District Court held that Glenn and the Grosfields had mutually consented to the relocation of the original prescriptive easement and granted a permanent injunction forbidding blockage of the new roadway. Grosfields appeal that decision. We reverse the order and judgment of the District Court.

The dispositive issue on appeal is whether the District Court erred when it held that the location of the existing prescriptive easement could be changed based on the “tacit” consent of the defendants.

FACTUAL BACKGROUND

Annabelle Glenn is the owner of approximately one and one-quarter acres of real property located near Lincoln, Montana. Glenn’s property is part of a larger five-acre tract of land owned by her and her relatives, the Dunlaps, and the Dolsons. The five-acre tract has been used by Glenn and her relatives primarily as recreational property.

The Grosfields own land which surrounds the land owned by Glenn and her relatives. Glenn, her neighbors, or her predecessors had gained access to their property for nearly 100 years by use of a dirt road which crossed the land owned by Dunlaps, Dolsons, and Grosfields. Grosfields concede that Glenn and her neighbors established a prescriptive easement across this “old road” for access to their property.

In 1986, Glenn fenced her parcel of land. In 1992 and 1993, Dolsons and Dunlaps fenced their land.

So that it would not be necessary to install cattle guards or gates in their fences, Glenn, Dolsons, and Dunlaps quit using a portion of the old road and began using a new road which avoided Dolsons’ property and traversed a greater portion of Grosfields’ property.

Glenn and her neighbors began using the new road without specifically asking permission to use the portion of the road located on Grosfields’ property. All the property owners, including the Grosfields, used the new road for approximately two years, until September 1994, when the Grosfields placed a barbed wire fence across the portion of the road located on their property.

Abe Grosfield testified at trial that he fenced the road on his property for his cattle ranch. He further testified that he never intended to relocate the road easement and that he used the new road because Glenn and her neighbors fenced off the old road. Grosfield also testified that at one time he graveled a small portion of the new road for his own use.

The District Court found that although Grosfields did not express an intent, either oral or written, that the easement be permanently relocated, neither did they expressly object to the easement relocation. The court found, therefore, that Grosfields gave their “tacit” consent for relocation of the easement.

On November 15, after a hearing, the District Court granted a preliminary injunction which required Grosfields to remove the fence they had erected. On March 24, after a trial on the merits, the District Court held that Glenn and the Grosfields had mutually consented to the relocation of the original prescriptive easement and granted an injunction which forbade blockage of the new roadway.

DISCUSSION

Did the District Court err when it held that the location of the existing prescriptive easement could be changed based on the “tacit” consent of the defendants?

The standard of review for a district court’s findings of fact is whether they are clearly erroneous. Rule 52(a), M.R.Civ.P.; Brown v. Tintinger (1990), 245 Mont. 373, 377, 801 P.2d 607, 609. Conclusions of law are reviewed to determine whether the court’s interpretation and application of the law is correct. Jim’s Excavating Serv., Inc. v. HKM Assocs. (1994), 265 Mont. 494, 501, 878 P.2d 248, 252.

Grosfields contend that the District Court erred when it found that they consented to relocation of the easement and when it concluded that the “new road” constitutes an easement by prescription. We need not discuss the former contention because the latter claim is dispositive. Section 70-20-101, MCA, provides:

No estate or interest in real property, other than an estate at will or for a term not exceeding 1 year can be created, granted, assigned, surrendered, or declared otherwise than by operation of law or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring it or by his lawful agent thereunto authorized by writing.

An easement is a nonpossessory interest in land, and therefore, it cannot be created, granted, or transferred except by operation of law, by an instrument in writing, or by prescription. Wild River Adventures v. Board of Trustees (1991), 248 Mont. 397, 400, 812 P.2d 344, 346; see also Prentice v. McKay (1909), 38 Mont. 114, 118, 98 P. 1081, 1083. Easements by prescription are created by operation of law. Woods v. Houle (1988), 235 Mont. 158, 160-62, 766 P.2d 250, 252.

To establish an easement by prescription, the party claiming an easement “must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutory period. The statutory period is five years.”

Unruh v. Tash (1995), [271 Mont. 246], 896 P.2d 433, 435 (quoting Public Lands Access Ass’n, Inc. v. Boone & Crockett Club Found., Inc. (1993), 259 Mont. 279, 283, 856 P.2d 525, 527). All elements must be proven because “one who has legal title should not be forced to give up what is rightfully his without the opportunity to know that his title is in jeopardy and that he can fight for it.” Unruh, 896 P.2d at 436 (quoting Public Lands Access, 856 P.2d at 527). Even though all elements are necessary to establish a prescriptive easement, this Court has stated that if the period of time in question is less than the statutorily prescribed five years, it is “immaterial” whether the defendant’s use was adverse or permissive — no prescriptive easement can be perfected without passage of the required five years. Brown, 801 P.2d at 609-10.

In this case, the parties agree that the “new road” was used for only two years. Therefore, we hold that Glenn is unable to establish an interest in a “new road” by prescriptive easement.

Glenn contends, based on our decision in Scott v. Weinheimer (1962), 140 Mont. 554, 562, 374 P.2d 91, 96, that the location of a prescriptive easement can be changed by mutual consent of the parties, and presumably without the necessity of a written easement. Reliance on Scott is misplaced. Scott involved an action to enforce a prescriptive easement across the adjoining land of the plaintiffs’ neighbors which had been used by the plaintiffs and their predecessors for 45 years. During the 45-year period, the defendants changed the location of the road and contended that the change invalidated the easement sought by the plaintiffs. Scott, 374 P.2d at 93.

This Court held that “[t]he plaintiffs’ right in the easement, as modified, became fixed after ten years acquiescence by both parties.” Scott, 374 P.2d at 96. In so holding, the Court reasoned that while the plaintiffs did not expressly agree to the change, they acquiesced in the change and used the changed road for a period exceeding the statutory requirement for establishing a prescriptive easement. (At that time, use for ten years was required.) Scott, 374 P.2d at 96. To the extent that Scott suggests that a prescriptive easement can be relocated by verbal or tacit consent, it is overruled.

In Scott, the plaintiffs met the ten-year statutory requirement. Glenn did not meet Montana’s five-year statutory requirement.

For these reasons, we hold that the District Court erred when it concluded that the location of the plaintiff’s prescriptive easement could be changed by Grosfields’ tacit consent without an instrument in writing which evidenced an intent to do so and without satisfying the requirements for an easement by prescription. We remand to the District Court for entry of judgment for the defendants.

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


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RICHARD A. SAVARIA, Defendant and Appellant.
    No. 95-098.
    Submitted on Briefs October 19, 1995.
    Decided November 21, 1995.
    52 St.Rep. 1153.
    906 P.2d 215.
    274 Mont. 197.
    For Appellant: William F. Hooks, Appellate Defender, Helena.
    For Respondent: Hon. Joseph Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; Betty Wing, Missoula County Deputy County Attorney, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant, Richard Savaria was sentenced in the Fourth Judicial District Court, Missoula County to a term of ten years in the Montana State Prison on seven counts of felony theft.

We affirm the conviction and remand for resentencing.

The issue on appeal is whether the District Court erred in failing to consider the alternatives to imprisonment at the Montana State Prison for a non-violent felony offender, pursuant to §§ 46-18-201(10) and 46-18-225, MCA.

It is undisputed that the appellant is a non-violent felony offender pursuant to the statutory definition contained in § 46-18-104(3), MCA, and the court should have considered § 46-18-201(10), MCA, which imposes certain obligations on a court sentencing such an offender:

In sentencing a non-violent offender, the court shall first consider alternatives to imprisonment of the offender in the state prison, including placement of the offender in a community corrections facility or program. In considering alternatives to imprisonment the court shall examine the sentencing criteria contained in § 46-18-225, MCA. If the offender is subsequently sentenced to the state prison or a women’s correctional facility, the court shall state its reasons why alternatives to imprisonment were not selected, based on the criteria contained in 46-18-225.

See State v. Pence (1995), [273 Mont. 223], 902 P.2d 41; State v. LaMere (1995), [272 Mont. 355], 900 P.2d 926; State v. Stevens (1993), 259 Mont. 114, 115-16, 854 P.2d 336, 337-38.

The Attorney General has filed herein a Notice of Concession, conceding that the matter should be remanded to the District Court for resentencing.

We hold that the District Court failed to properly sentence the defendant under applicable sentencing statutes.

We affirm the conviction and remand for resentencing.

JUSTICES NELSON, TRIEWEILER LEAPHART and ERDMANN concur.


author: CHIEF JUSTICE TURNAGE

text:
    IN RE THE ESTATE OF JOSEPH S. FLYNN, Deceased.
    No. 95-312.
    Submitted on Briefs November 2, 1995.
    Decided November 30, 1995.
    52 St.Rep. 1190.
    908 P.2d 661.
    274 Mont. 199.

      For Appellant: John F. Lynch, Lynch & Chisholm, Great Falls.
    For Respondent: Barbara Bell, Bell & Marra, Great Falls.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Mary Flynn appeals an order of the Eighth Judicial District Court, Cascade County, admitting to formal probate the July 1,1994 will of Joseph Flynn and declaring null and void the June 14,1994 declaration of marriage between the two of them. We affirm in part and reverse in part.

The issues are:

1. Did the District Court err in invalidating the marriage of Joseph and Mary Flynn?

2. Is reversible error present in the court’s findings of fact?

Joseph Flynn and Mary Flynn married in 1961. Mary brought four daughters into the marriage, and four more children were born to the couple. The marriage was dissolved in 1988. After their divorce, Joseph and Mary remained close.

In 1992, Joseph underwent surgery for colon cancer which had spread to his liver. By the spring of 1994, he was quite ill. On May 31, 1994, he drafted a will leaving his estate to Mary and appointing her as personal representative of the estate.

On June 14, 1994, while Joseph was temporarily in a nursing home, he and Mary signed a declaration of marriage. When Joseph left the nursing home, Mary returned to his home with him. She stayed only four days before she moved out again.

Joseph’s sister, Dorothy Speer, then traveled from Glasgow, Montana, to care for him at his home. After a few more days, he agreed to return to the hospital and from there was transferred to a retirement home. On July 1, 1994, Joseph executed a will in which he renounced his June 14, 1994 marriage to Mary and bequeathed his estate to Dorothy.

Joseph Flynn died on July 17, 1994. Mary initiated informal probate proceedings under the May 31 will. Dorothy initiated informal probate proceedings under the July 1 will. The two matters were consolidated for hearing.

The court heard testimony from Mary and Dorothy, from three of Joseph’s children and one of his stepdaughters, from the hospital chaplain and the nurse who witnessed the July 1 will, and from Joseph’s primary physician. After the hearing, the court concluded that the July 1 will was the valid will of Joseph Flynn which revoked both the May 31 will and the declaration of marriage between Joseph Flynn and Mary Flynn. The court appointed Dorothy as personal representative and revoked its earlier order appointing Mary as personal representative. The court ordered that the July 1 will be admitted to formal probate and declared null and void the declaration of marriage. Mary appeals.

ISSUE 1

Did the District Court err in invalidating the marriage of Joseph and Mary Flynn?

Section 40-1-402, MCA, sets forth the grounds upon which a district court may declare a marriage invalid. At subsection (2), the statute provides:

A declaration of invalidity under subsections (l)(a) through (l)(c) may be sought by any of the following persons and must be commenced within the times specified, but in no event may a declaration of invalidity be sought after the death of either party to the marriage[.] [Emphasis added.]

Dorothy argues that Joseph “sought” to declare the marriage invalid when he signed his July 1 will, while he and Mary were both still living.

The Commissioners’ Note in the annotations to § 40-1-402, MCA, comments:

Subsection (b)[(2)] states a general policy against declarations of invalidity after the death of either party to the marriage ....

... [T]he use of the word “sought” rather than “commenced” implies that the death of a party to the marriage at any time before the entry of final judgment would terminate a proceeding attacking the marriage.

We agree. In this case, no legal action was commenced to declare the marriage invalid until after Joseph’s death. We conclude, therefore, that the declaration of invalidity was “sought” only after Joseph died, in violation of the above statute. We therefore vacate that part of the judgment declaring invalid Joseph and Mary Flynn’s June 14, 1994 marriage.

ISSUE 2

Is reversible error present in the court’s findings of fact?

Findings are a recordation of the essential and determining facts upon which the district court rested its conclusions of law. In re Marriage of Barron (1978), 177 Mont. 161, 164, 580 P.2d 936, 938. This Court’s standard of review of findings of fact is whether the findings are clearly erroneous. Rule 52(a), M.R.Civ.P. A finding is clearly erroneous if it is not supported by substantial evidence, if the court misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been committed. Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

The first finding challenged on appeal is FindingNo. 5, which reads in pertinent part:

Dana Darko, decedent’s step-daughter testified that she witnessed decedent’s signature of [the May 31] will and she believed the decedent to be competent at that time.

Dana Darko was the husband of one of Flynn’s stepdaughters. He was a witness to the May 31 will, but did not testify at the hearing. However, Melodie Carleton, Flynn’s daughter, did testify to the substance contained in Finding No. 5.

We will not reject as clearly erroneous a finding in which the error is correctable. In re Marriage of Turbes (1988), 234 Mont. 152, 159, 762 P.2d 237, 241. As discussed above, the court’s error in Finding No. 5 was in setting forth the name of the witness, not in the substance of the finding. Substantial evidence supports the substance of the finding. The error could have been corrected through a motion to amend the judgment, but no such motion was made. Further, we conclude that the court did not misapprehend the effect of the evidence and a review of the record does not leave us with the definite and firm conviction that a substantive mistake has been made. We conclude that the error in Finding No. 5 is not reversible error.

Mary next disputes Finding No. 7, in which the court found “Mendolynn Walls testified that in her opinion, the decedent was competent on June 14.” As Mary points out, Mendolynn Walls did not testify. However, her sister Starnell Darko testified that she was present at the June 14 marriage and that in her opinion Joseph was “aware of the situation that was going on” and willing to be remarried. Again, the error in setting forth the name of the witness is correctable and does not affect the judgment. We conclude it is not reversible error.

Mary challenges as without support in the record the court’s statement in Finding No. 8 that “ [t]he rest of the family was surprised by the Declaration of Marriage and did not know of it in advance.” The record includes the testimony of at least two family members that they were surprised at the remarriage — Farren Flynn and Melonnie Suek. Finding No. 8 is not clearly erroneous.

Mary next challenges part of Finding No. 10: “When [Dorothy] arrived, decedent’s home was filthy, smelled strongly of urine and decedent had not bathed in days.” Mary contends that Dorothy did not so testify.

Dorothy testified that when she arrived at Joseph’s home on June 26, his bedroom was “the awfulest thing I’ve ever seen.” She testified that there was a garbage can and urinal near Joseph’s bed. She believed he was using the urinal and then dumping the contents into the garbage can. She testified that Joseph was incontinent, that he was filthy, and that his hair was matted and dirty. She testified that it took her three to four hours to give Joseph a shower because he was so weak. Finding No. 10 captures the essence of her testimony.

The court’s Finding No. 13 was:

JoAnn Thornberg testified that she has been an oncology nurse at Columbus Hospital for about 10 years. She had met Mr. Flynn on previous hospitalizations. She felt that at the time she witnessed the will of July 1 that decedent knew what he was doing and was competent. She testified that she was with Mr. Flynn as much as possible as his family did not visit very often. She testified that often terminal cancer patients can be competent at times throughout the day and incompetent at other times.

Mary points out that although JoAnn Thornberg testified that Joseph knew what he was doing and was competent when he signed the July 1 will, she also testified that the opinion of Joseph’s treating physician, Dr. Warr, should be given more weight than her own opinion. Dr. Warr testified, “I felt that they had made a big mistake in saying that he was competent at that point.”

As the trier of fact, the District Court, not JoAnn Thornberg, bore responsibility for deciding the amount of weight to be given to the testimony of each witness. Keebler v. Harding (1991), 247 Mont. 518, 523, 807 P.2d 1354, 1357. In addition to JoAnn Thornberg, Father Birkmaier also testified that he witnessed the signing of the July 1 will and believed Joseph was competent at that time. We conclude Mary has demonstrated no error in Finding No. 13.

Finally, Mary contests the court’s Finding No. 14:

Father Birkmaier testified that he works at the Columbus Hospital and that he had talked to decedent before and after he witnessed the will. He believed that Mr. Flynn was competent at the time he witnessed the signing of the will on July 1. The decedent stated at the time that leaving his property to his sister was the moral thing to do because Dorothy Speer had cared for their sister, who had been severely injured in a car accident, for many years without compensation.

Mary points out that all of the facts in Finding No. 14 were not contained within Father Birkmaier’s testimony. Specifically, Father Birkmaier testified that Joseph told him that leaving his estate to Dorothy would be “the moral and right thing to do” because Dorothy had “tak[en] care of somebody else.” Dorothy testified that the person she had cared for was a sister of hers and Joseph’s who had been seriously injured in a car accident in 1936. In crafting Finding No. 14, the court tied together Father Birkmaier’s testimony and testimony by Dorothy. In view of the purpose of findings to record the essential and determining facts upon which the court bases its decision, we conclude that the court did not err in so doing.

In summary, although we have held that the District Court erred in invalidating Mary and Joseph’s declaration of marriage, Mary has shown no reversible error in any of the challenged findings. We reverse the portion of the District Court’s order declaring null and void the June 14,1994 declaration of marriage between Joseph Flynn and Mary Flynn. We affirm the portion of the court’s order admitting the July 1,1994 will of Joseph Flynn to formal probate and appointing Dorothy Speer as personal representative of the estate. This cause is remanded for further proceedings consistent with this Opinion.

JUSTICES GRAY, NELSON, ERDMANN and HUNT concur.


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. FRANK MICHAEL GREY, Defendant and Appellant.
    No. 95-043.
    Submitted on Briefs August 31, 1995.
    Decided December 5, 1995.
    52 St.Rep. 1193.
    907 P.2d 951.
    274 Mont. 206.

      For Appellant: David M. Ortley, Kalispell.
    For Respondent: Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; Thomas J. Esch, Flathead County Attorney, Valerie D. Wilson, Deputy Flathead County Attorney, Kalispell.
   JUSTICE NELSON

delivered the Opinion of the Court.

Defendant Frank Michael Grey (Grey) appeals from the Eleventh Judicial District Court, Flathead County’s order denying his motion to suppress his videotaped statement and judgment of conviction. We reverse.

We find the following issue dispositive:

Whether the District Court erred in denying Grey’s motion to suppress his videotaped statement on the ground that the statement was obtained involuntarily and thus in violation of Grey’s Fifth Amendment right against self-incrimination?

BACKGROUND

John Zauner (Zauner) owns a Western Auto store in Kalispell, Montana where Grey was employed as a salesclerk. After noting merchandise missing from his store, and after finding that Grey had a prior conviction of theft from a store at which he worked, Zauner contacted the Kalispell Police Department. The police initiated an investigation focused on Grey. The thefts occurred after Zauner hired Grey and some could be traced to Grey’s shift. Additionally, Zauner saw the same kind of radar detector mount that was missing from his store in Grey’s pick-up truck and knew that Grey always carried a gym bag to and from work. The police placed a video camera in the store to “make it look as if there was a hidden camera.”

The police contacted Grey at Western Auto, informed him that an investigation was being conducted, and told him that all the employees would be interviewed, but he was the first. The police asked Grey to go to the Kalispell Police Department for the interview. Grey voluntarily drove himself to the station and was initially interviewed in the public area of the station. Officer Holt told Grey that he was investigating a theft totalling $22,000 and again told Grey that he would interview each employee. Officer Holt used the “Reed” technique of interviewing to interpret Grey’s responses and body mannerisms to determine whether he was more likely guilty than not.

At that point, Officer Holt contends that he gave Grey his Miranda warnings, asked him if he wanted to continue talking, and took him to the booking room for formal interrogation. Grey contends that Officer Holt did not give him his Miranda warnings. The police did not obtain a written waiver or record giving Grey his Miranda warnings, but did videotape the interview. Officer Holt began the interrogation by again telling Grey that approximately $20,000 was missing from Western Auto and asking Grey whether the lie detector would “go beep” when he answered questions. During the interrogation, Grey confessed to taking merchandise from Western Auto. Both parties agree that the interview constituted a custodial interrogation.

The police arrested and incarcerated Grey. Grey filed a pre-trial motion to suppress the statement and videotape alleging that they were both obtained in violation of his privilege against self-incrimination. On September 19, 1994, the District Court denied Grey’s motion to suppress. On the date scheduled for trial, the District Court heard Grey’s renewed motion to suppress, denied the motion, and granted Grey’s oral motion to continue trial. Following a bench trial, the District Court found Grey guilty of felony theft, common scheme, and ordered him to serve 90 days in the Flathead County jail and deferred his sentence for 2 years on certain conditions.

DISCUSSION

Whether the District Court erred in denying Grey’s motion to suppress his videotaped statement on the ground that the statement was obtained involuntarily and thus in violation of Grey’s Fifth Amendment right against self-incrimination?

On appeal, Grey raises five issues for our consideration. Since we reverse the District Court on the second issue, we will only discuss that issue. We review a district court’s findings of fact regarding suppression hearing evidence to determine whether those findings are clearly erroneous. State v. Kaluza (1993), 262 Mont. 360, 361, 865 P.2d 263, 264 (citing State v. Bower (1992), 254 Mont. 1, 7, 833 P.2d 1106, 1110 and State v. Cope (1991), 250 Mont. 387, 396, 819 P.2d 1280, 1286). The issue of voluntariness is largely a factual determination that is within the discretion of the district court. State v. Lenon (1977), 174 Mont. 264, 271, 570 P.2d 901, 906.

Grey argues that the police used impermissible procedures to obtain his confession, rendering it involuntary and violative of both his Fifth Amendment privilege against self-incrimination and his Fourteenth Amendment right to due process of the law. Grey also contends that the police did not administer adequate Miranda warnings and should have recorded the warnings and obtained a written waiver. Grey claims that he did not voluntarily, intelligently, and knowingly waive his rights. Therefore, he contends that the District Court erred in admitting his statement into evidence.

Confessions are generally admissible. To be admissible, however, a confession must be made freely, voluntarily, and without compulsion of any sort. State v. Allies (1979), 186 Mont. 99, 109, 606 P.2d 1043, 1049.

The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves. Allies, 606 P.2d at 1047 (quoting Spano v. New York (1959), 360 U.S. 315, 320, 79 S.Ct. 1202, 1205, 3 L.Ed.2d 1265, 1270).

The procurement of a confession must comport with the guarantee that an individual will not be compelled to incriminate himself or herself, and that the individual may not be convicted of a crime without due process of law. Allies, 606 P.2d at 1047. It follows that “[i]f a defendant’s confession is involuntary, it violates [the] Fifth Amendment privilege against self-incrimination and may not be used as evidence at [the] criminal trial without violating [the] Fourteenth Amendment right to due process of the law.” Lenon, 570 P.2d at 906 (citing Brown v. Mississippi (1936), 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682). A defendant may waive the Fifth and Fourteenth Amendment rights only if the waiver of those rights is made voluntarily, knowingly, and intelligently. Miranda v. Arizona (1966), 384 U.S. 436, 444, 86 S.Ct. 1602, 1613, 16 L.Ed.2d 694, 707; State v. Blakney (1982), 197 Mont. 131, 134, 641 P.2d 1045, 1049.

Voluntariness is the underlying test of admissibility of confessions. Lenon, 570 P.2d at 906 (citing Brown v. Illinois (1975), 422 U.S. 590, 604, 95 S.Ct. 2254, 2262, 45 L.Ed.2d 416, 427).

Voluntariness has reflected an accommodation of the complex values implicated in police questioning of a suspect... At one end of the spectrum is the acknowledged need for police questioning as a tool for the effective enforcement of criminal laws ... At the other end of the spectrum is the set of values reflecting society’s deeply felt belief that the criminal law cannot be used as an instrument of unfairness ... [Citations omitted.]

Schnekloth v. Bustamonte (1973), 412 U.S. 218, 225-26, 93 S.Ct. 2041, 2046, 36 L.Ed.2d 854, 861. In determining whether a defendant’s confession was voluntary, the United States Supreme Court has assessed the totality of all the surrounding circumstances, including the characteristics of the accused and the details of the interrogation. Schnekloth, 412 U.S. at 226, 93 S.Ct. at 2046, 36 L.Ed.2d at 861. Significantly, none of the decisions regarding the admissibility of a confession turns on the presence or absence of a single controlling criterion, each reflects a careful scrutiny of all the surrounding circumstances. Schnekloth, 412 U.S. at 226, 93 S.Ct. at 2046, 36 L.Ed.2d at 861. Accordingly, this Court has held that an analysis of the voluntariness of a confession is a factual question that must take into account the totality of the circumstances. State v. Mayes (1992), 251 Mont. 358, 376, 825 P.2d 1196, 1208 (citing Allies, 606 P.2d at 1050).

Pursuant to § 46-13-301(1), MCA, a defendant may move to suppress a confession that the defendant feels was involuntary. This section places the burden on the State to prove by a preponderance of the evidence that the confession was voluntary. The central question is whether the State has established by a preponderance of the evidence that the defendant was advised of his constitutional rights and whether that defendant knowingly waived them and voluntarily gave a statement. State v. Blakney (1982), 197 Mont. 131, 143, 641 P.2d 1045, 1051.

Several factors can culminate in a totality of circumstances that render a confession involuntary. A confession extracted by any sort of threat or violence, by any direct or implied promises, however slight, or by the exertion of any improper influence has the potential to be involuntary. State v. Phelps (1985), 215 Mont. 217, 224, 696 P.2d 447, 451. Physical coercion, psychological coercion, inadequate Miranda warnings, and impermissible police practices are each factors weighed in a court’s consideration of undue influence. Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461 (holding that physical brutality led to an involuntary confession); Payne v. Arkansas (1958), 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (holding that mental coercion led to an involuntary confession); Miranda, 384 U.S. 436, 86 S.Ct. 1602 (holding that failure to warn defendant of rights rendered confession inadmissible); Allies, 606 P.2d 1043 (holding that impermissible police procedures rendered confession involuntary). In the instant case, the police followed impermissible practices and failed to administer adequate Miranda warnings.

When a defendant moves to suppress a statement, the district court’s analysis should focus on whether the law enforcement authorities followed impermissible procedures. Allies, 606 P.2d at 1049; State v. Grimestad (1979), 183 Mont. 29, 36, 598 P.2d 198, 202. For example, in Allies, the defendant voluntarily presented himself at the police station three times, underwent a polygraph test, and eventually confessed to four minders. The police used two impermissible procedures in Allies', they lied to the defendant and used subtle psychological pressure. Even though the police advised the defendant of his Miranda rights, we held that in considering the totality of the circumstances, the State did not, by a preponderance of the evidence, show that the defendant voluntarily and knowingly waived his constitutional right against self-incrimination or that he voluntarily confessed.

In Mayes, a defendant found guilty of incest confessed after taking a polygraph test. Mayes, 825 P.2d 1196. This Court suppressed the confession because the combination of the circumstances surrounding his confession mandated suppression. At the time the defendant confessed, he had been awake for more than 30 hours, questioned continually, separated from his children, and lied to about evidence against him. Mayes, 825 P.2d at 1208. The polygraph test indicated that the defendant was not telling the truth, and the examiner used that information to obtain a confession.

In State v. Craig (1993), 262 Mont. 240, 864 P.2d 1240, the defendant had slept prior to the exam and the officers did not lie about evidence, however we still held that the district court did not err in suppressing a statement made by the defendant following a polygraph examination where police officers used the results of the polygraph to elicit a statement or confession. We reached that result even though at no time did the police make any false statements to the defendant in order to induce a confession. Craig, 864 P.2d at 1243 (Nelson, J., dissenting).

In the instant case, the police made false statements in order to induce Grey’s confession and thus clearly used impermissible procedures. The Kalispell Police Department’s investigation singled out Grey and focused on obtaining enough evidence to charge him. They lied to him and told him that they were going to interview each employee. They lied to him about the extent of the theft problem. They lied to him that $22,000 worth of merchandise had been stolen, when in fact, only several hundred dollars worth of property was missing. They set up a video camera in the store purely to create a false impression that the store was monitored. Lastly, they told Grey that the lie detector test would go “beep” if Grey did not tell the truth, when in fact Grey did not have to take a lie detector test. In summary, Officer Holt’s use of deception to obtain Grey’s confession was not a permissible police procedure.

The police committed an additional transgression of procedure in this case by not giving Grey adequate Miranda warnings. In State v. Johnson (1978), 177 Mont. 182, 580 P.2d 1387, we held that the requirements of Miranda were not met when a county attorney testified that the defendant was given his rights but there was no proof regarding what the defendant was told about his rights. We concluded that without knowing what the defendant was told, we could not possibly determine if the defendant was properly advised of his rights prior to making a statement to the county attorney.

This Court has said that where the police investigation has focused on a particular suspect who is held in police custody, law enforcement officers must adopt effective safeguards securing the suspect’s constitutional right against self-incrimination prior to questioning him...

Johnson, 580 P.2d at 1389.

Moreover, a valid waiver will not be presumed simply from the silence of the accused after a warning is given or simply from the fact that a confession was in fact eventually obtained. The evidence must show the defendant intelligently understood his or her rights and rejected them. Miranda, 384 U.S. at 475, 86 S.Ct. at 1628, 16 L.Ed.2d at 724. In Allies, we noted that the defendant was advised of his Miranda rights before he confessed. However, we proceeded with the understanding that “[m]ore than mere lip service must be given to Miranda and the principles it embodies.” Allies, 606 P.2d at 1050.

Similarly, in Grimestad, the State appealed the district court’s order granting defendant’s motion to suppress evidence on the grounds that certain admissions were not voluntary. The police downplayed defendant’s Miranda rights and persisted in assuring the defendant that he was not a suspect. In Grimestad, we agreed with the district court that “mere lip service was given to the Miranda requirements ... rather than a meaningful warning.” Grimestad, 598 P.2d at 203.

Similarly, in the instant case, the police gave mere lip service to the Miranda requirements. The officer who interrogated Grey testified that he gave Grey his Miranda rights before taking Grey to the interrogation room. However, he did not recall exactly what he told Grey, merely that he had recited the Miranda requirements from memory. The officer did, however, remember that he chose not to use a waiver form because he did not want to j eopardize the interrogation. He further testified that although Grey did not specifically say so, by agreeing to continue to talk with the police officers, Grey agreed to waive his rights.

The State simply did not prove by a preponderance of the evidence that Grey voluntarily confessed. It is immeasurably more difficult for the State to sustain its burden to prove the voluntariness of a confession when there is no record of the Miranda warnings other than the officer’s testimony that he gave them.

We do not hold that the police must tape record or create an audio-visual record of Miranda warnings and the detainee’s waiver, as Grey urges we should and as some jurisdictions have. See, for example, Stephan v. State (Alaska 1985), 711 P.2d 1156 and State v. Scales (Minn. 1994), 518 N.W.2d 587. Although that may be the better practice and would help assure that the accused receives a constitutionally adequate Miranda warning while, at the same time, enhancing the prosecution’s ability to meet its burden to prove voluntariness, we leave the imposition of any such procedural requirement to the" legislature and to individual law enforcement agencies. Similarly, we do not hold that in every instance the failure to secure a written Miranda waiver will be fatal. We recognize, as one example, that an officer Mirandizing a suspect in the field at the time of arrest, may not be able to preserve a tangible record of his or her giving of the warning or of the accused’s waiver.

Nevertheless, the situation in the instant case does not involve the arresting officer’s administration of the Miranda warning in the field. We do hold, that, in the context of a custodial interrogation conducted at the station house or under other similarly controlled circumstances, the failure of the police officer to preserve some tangible record of his or her giving of the Miranda warning and the knowing, intelligent waiver by the detainee will be viewed with distrust in the judicial assessment of voluntariness under the totality of circumstances surrounding the confession or admission. That is all the more so where the evidence demonstrates that, as here, the police officer made a conscious decision not to secure a written waiver or otherwise preserve his giving of the Miranda warning and the detainee’s waiver on the premise that to do so would alert the accused to exercise his rights and, thus, jeopardize the interrogation.

In the instant case, assuming, arguendo, that the warning was given, the mere perfunctory reading of Grey’s Miranda rights was not sufficient; the police, here, made a pretense of advising Grey of his rights while simultaneously making sure he did not assert them. Such a procedure renders the giving of the Miranda warnings a hollow and meaningless exercise, indeed, and does not comport with due process.

Based on the totality of the circumstances of police deception and failure to give Grey an adequate Miranda warning, we hold that the District Court’s findings were clearly erroneous. The District Court misapprehended the evidence in finding that Grey’s confession was voluntary.

Accordingly, Grey’s conviction is reversed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, HUNT, TRIEWEILER and LEAPHART concur.


text:
    JODIE ULRIGG, Plaintiff and Appellant, v. JACK JONES and SAFECO INSURANCE CO., Defendants, Respondents and Cross Appellants.
    No. 95-341.
    Submitted on Briefs October 26, 1995.
    Decided December 5, 1995.
    52 St.Rep. 1198.
    907 P.2d 937.
    274 Mont. 215.

      For Appellant: Michael Sol, Sol & Wolfe, Missoula.
    For Respondent: Mark S. Williams, Shelton C. Williams, Williams & Ranney, Missoula.
   JUSTICE NELSON

delivered the Opinion of the Court.

The Plaintiff, Jodie Ulrigg (Jodie), appeals from the February 6, 1995 opinion and order of the Fourth Judicial District Court, Missoula County, granting Defendant Jack Jones’ (Jack) motion for summary judgment. Jack cross-appeals from that part of the June 9, 1995 opinion and order of the District Court granting Jodie’s motion to add Safeco Insurance Co. (Safeco) ¿s a party defendant to her lawsuit. We affirm the District Court’s grant of summary judgment in favor of Jack; we reverse the District Court’s order joining Safeco as a party to the lawsuit.

BACKGROUND

On August 18, 1994, Jodie filed her complaint in District Court naming Jack as the sole defendant in her personal injury suit. Jodie alleged that Jack is “the owner of an automobile which negligently struck an automobile driven by [Jodie] on or about September 10, 1991” and that Jack’s automobile “was driven by a person whom [Jodie] believes to be [Jack’s] daughter, as agent for [Jack] and with the knowledge and permission of [Jack]; [and] that [Jack] was negligent for entrusting his vehicle to his daughter to drive.”

Jack answered, admitting that the automobile which he owned was involved in the subject collision on the date alleged and that his daughter Jacque Jones (Jacque) was driving the car at the time of the accident with his permission. Jack denied that Jacque was his agent or that he was negligent for permitting her to use his car.

Subsequently, Jack moved for summary judgment, supporting his motion and brief with the fruits of discovery and with his and Jacque’s affidavits. Jodie filed opposing briefs. Following the District Court’s February 6, 1995 decision granting Jack summary judgment, Jodie moved to alter or amend the summary judgment and to add Safeco as a party defendant. Jack objected, and on June 9,1995, the District Court entered its opinion and order refusing to alter or amend its decision on summary judgment, but granting Jodie’s motion to add Safeco. This appeal and cross-appeal followed. Other pertinent facts are set forth, as necessary, in our discussion.

We address the following issues on appeal:

I. Did the District Court err in granting summary judgment to Jack?

II. Did the District Court err in granting Jodie’s motion to join Safeco as a party defendant in her lawsuit?

DISCUSSION

I.

Notwithstanding that Jodie’s notice of appeal only states that she is appealing from the District Court’s February 6,1995 order granting Jack summary judgment, it is apparent from the briefs that both parties presume that Jodie’s appeal also includes the District Court’s June 9, 1995 denial of her motion to alter or amend the summary judgment order and her renewal of that motion. We will, likewise, proceed on that basis.

Our review of the trial court’s grant of summary judgment is de novo; we utilize the same criteria as the district court. Summary judgment is proper only when no genuine issue of material fact exists and when the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R; Brown v. Demaree (Mont. 1995), [272 Mont. 479], 901 P.2d 567, 569 (citing Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214). We look to the pleadings, depositions, answers to interrogatories, admissions on file and affidavits to determine the existence or nonexistence of a genuine issue of material fact. Krebs v. Ryan. Oldsmobile (1992), 255 Mont. 291, 294, 843 P.2d 312, 314 (citing Sherrodd, Inc. v. Morrison-Knudsen Co. (1991), 249 Mont. 282, 284, 815 P.2d 1135, 1136). We review the district court’s conclusions of law to determine if the court’s interpretation of the law is correct. Nimmick v. State Farm Mut. Auto. Ins. Co. (1995), 270 Mont. 315, 319, 891 P.2d 1154, 1156 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603).

We assume that Jodie’s motion to alter or amend was considered by the trial court under Rule 60(b), M.R.Civ.P., since her motion was filed more than 10 days following the court’s February 6, 1995 order and was, therefore, untimely under Rule 59(g). See Ring v. Hoselton (1982), 197 Mont. 414, 424, 643 P.2d 1165, 1171 (citing 7 Moore’s Federal Practice, ¶ 60.18[8], at 216.1 (2d ed. 1979)). “[A] motion that is made under Rule 59, which is not timely... may, nevertheless, be considered as a motion under Rule 60 when it states grounds for relief under this latter rule.” Ring, 643 P.2d at 1171. Under such circumstances, the appropriate standard of review is whether the District Court abused its discretion in denying a motion to alter or amend the summary judgment order. Goodover v. Lindey’s, Inc. (1988), 232 Mont. 302, 312, 757 P.2d 1290, 1296.

Under the applicable standards of review, we determine that the District Court’s legal conclusions for granting Jack summary judgment were correct and that it, therefore, did not abuse its discretion in refusing to alter or amend its summary judgment order.

Jodie first argues that she attempted to “streamline” the litigation by simply suing Jack as the owner of the automobile and by not suing the driver, Jacque, who Jodie believed was out of state and unavailable — i.e. she limited her suit to “one plaintiff and one defendant.” Jodie claims that her approach was proper because Jack, as the owner of the car, was the real party in interest or a necessary party. Under Jodie’s theory, an action may be brought against the owner of a motor vehicle directly to invoke insurance coverage because the controlling statutes, the Motor Vehicle Safety-Responsibility Act, § 61-6-101 through § 61-6-304, MCA, (the Act) while, not imputing negligence to the vehicle owner, nevertheless, does, under Montana’s mandatory motor vehicle insurance laws, impute responsibility for financial liability. Jodie bases her argument on her interpretation of those statutes, on her view of what the legislature intended in adopting the Act, and, by analogy, on the fact that the legislature has, in certain other instances, mandated financial responsibility of one person for the acts, omissions, negligence, necessities or support of others (in this regard, Jodie cites §§ 41-1-201, 40-6-237, 40-2-106, 40-2-103, and 23-2-505, MCA). We reject this argument.

Generally, the owner of a motor vehicle is not vicariously liable for the acts or omissions of the driver, absent statute or proof of some other legal theory such as agency or negligent entrustment. See Smith v. Babcock (1971), 157 Mont. 81, 84-87, 482 P.2d 1014, 1016-17 (citing Clawson v. Schroeder (1922), 63 Mont. 488, 499, 208 R 924, 927). See also Forrester v. Kuck (1978), 177 Mont. 44, 49, 579 P.2d 756, 759 (quoting 8 Am.Jur.2d, Automobiles and Highway Traffic, § 571).

Contrary to Jodie’s argument, except in two instances mentioned below, the Act does not impose vicarious liability on a third party. Rather, the Act requires the owner of a motor vehicle to continuously provide liability insurance coverage for operation of the vehicle by the owner and any permissive user. Section 61-6-301(l)(a), MCA. In that respect, it is undisputed that Jack fulfilled his obligation under the Act in this case — he provided liability insurance through Safeco which covered the permissive use of his car by his daughter, Jacque. Nothing in the Act made Jack personally liable, however, for Jacque’s alleged negligent driving. The Act as written imposes only financial responsibility, not liability.

As noted above, the legislature has imposed vicarious liability on third parties for the acts and omissions of motor vehicle drivers in two instances. First, under § 61-5-108, MCA, a parent or other responsible adult must sign the driver’s permit or license application of a person under age 18 and, along with the minor driver, assume the financial obligation of any negligence or willful misconduct of the minor while driving. Under that statute, the negligence or willful misconduct of the minor is statutorily imputed to the adult signing the minor’s application. Section 61-5-108(2), MCA. Second, § 61-6-201, MCA, imposes vicarious liability upon owners of vehicles used in commercial passenger transportation for acts and omissions of their employees while driving such vehicles.

Neither of those statutes is applicable in the instant case. Jacque was not a minor at the time of the accident nor was she driving Jack’s commercial passenger transportation vehicle as his employee. Moreover, contrary to Jodie’s arguments, it is apparent that where the legislature intends to impose vicarious liability on a third person for a driver’s acts or omissions, it does so by statute specifically written to accomplish that purpose. (To the same effect, See § 23-2-505, MCA, wherein the legislature has statutorily imposed vicarious liability on the owner of a vessel for injury or damage occasioned by its negligent operation.)

Jodie also argues that Jack is properly sued as a necessary party to her litigation, regardless of fault, in order to recover on his insurance, since the insurer’s duty to defend is only to the person who purchases the insurance and owns the policy and because the insurance contract is not designed to protect permissive users. Nothing could be further from the truth.

Section 61-6-103(2)(b), MCA, provides, in pertinent part, that the owner’s policy must:

insure the person named therein and any other person, as insured, using any motor vehicle or motor vehicles with the express or implied permission of the named insured. ...

Jack’s policy issued by Safeco conforms to this statutory mandate. Accordingly, Jacque, had she been sued, would have been covered by Jack’s insurance policy. While Jodie raises hypothetical questions regarding how a tort victim might recover if the vehicle owner posts an indemnity bond under § 61-6-301(2), MCA, that is not the fact situation at issue, and we decline to address her concerns in that regard.

Next, having found unavailing Jodie’s arguments to impose statutory liability on Jack under the Act, we turn to her contention that Jack should be liable under theories of agency and negligent entrustment. On the basis of the record before us, we conclude that Jodie did not establish a genuine issue of material fact implicating either theory.

In discovery, Jack propounded to Jodie an interrogatory request requiring her to state the basis for her contention that Jacque was acting as Jack’s agent at the time of the accident. Jodie responded that

[Jacque] was in control of Jack Jones’ vehicle; appeared to be in charge of the vehicle with Jack Jones’ permission or at his behest, and appeared to be in charge of the vehicle and responsible to him for its care and operation, and operating it under his authority and auspices.

There is nothing in Jodie’s answer (or in any other part of the record, for that matter) that sets forth any factual basis supporting Jodie’s conclusion that there was an agency relationship between Jacque and Jack in connection with her operation of his automobile. At the most Jodie’s answer demonstrates that Jacque was driving Jack’s car with his permission — a fact conceded by Jack.

Jodie speculates that Jacque was her father’s agent because the purpose of her trip was to visit the University financial aid office. However, both Jack and Jacque submitted uncontroverted affidavits on summary judgment that established that Jack did not know of Jacque’s trip, that he did not request her to use his car, that she was not driving the car in the performance of any task for him, and that he did not derive any benefit from her use of his car.

We have consistently held that speculative and conclusory statements are not a sufficient basis on which to raise a genuine issue of material fact. Miller v. Herbert (1995), [272 Mont. 132], 900 P.2d 273, 276; Howard v. Conlin Furniture No. 2, Inc. (1995), [272 Mont. 433], 901 P.2d 116, 119. Jodie’s burden on summary judgment was to come forward with substantial evidence that would establish a genuine issue of material fact that there was an agency relationship between Jacque and Jack. She failed in her burden to demonstrate such a fact, and her bald, unsupported conclusions and speculation to that effect are legally insufficient to withstand summary judgment. See Thornton v. Songstad (1994), 263 Mont. 390, 398-401, 868 P.2d 633, 638-40.

Similarly, Jodie failed in her burden to establish any factual basis for her claim that Jack negligently entrusted his automobile to Jacque. In discovery Jack required Jodie to set forth her evidence on this theory of her case. Jodie admitted that she did not have sufficient information to admit or deny Jack’s contention that he had no reason to believe Jacque would fail to drive his vehicle in a reasonable and safe manner and that he had no reason to believe that she would use his vehicle in a manner involving unreasonable risk of physical harm to others. According to Jodie, when asked via interrogatory, the basis for her negligent entrustment claim was that,

[Jacque’s] operation of the vehicle was the proximate cause of the accident and the resulting injuries and consequential damages to the Plaintiff. [Jack] was negligent in not ascertaining or ensuring that the driver was sufficiently experienced or skilled in the operation of a motor vehicle to avoid such an accident, and to avoid injuring the Plaintiff.

Again, Jodie supplied no factual basis for her claim of negligent entrustment. Jacque was 21 at the time of the accident; she was a licensed driver; and her’s and her father’s uncontradicted affidavits establish that Jack had no reason whatsoever to doubt his daughter’s competency as a driver.

Jodie maintains that our decision in Williams v. State Medical Oxygen & Supply, Inc. (1994), 265 Mont. 111, 874 P.2d 1225, supports her negligent entrustment theory. That is not the case, however. In the first place and most importantly, the plaintiff in Williams, established a factual record supporting his theory of negligent entrustment. Williams, 874 P.2d at 1226. Secondly, our decision in that case turned on a factual scenario that supported negligent entrustment under § 308 of the Restatement (Second) of Torts (1965). That is not the situation in this case. Rather, Jodie’s complaint alleges negligent entrustment of the type described in § 390 of the Restatement — i.e. supplying a chattel to a person incompetent to use it safely. Williams, 874 P.2d at 1227. As pointed out above, however, Jodie wholly failed to demonstrate any facts supporting her theory of liability in that regard.

The record here demonstrates that, in opposition to Jack’s motion for summary judgment, Jodie offered only conclusory and speculative statements as to her theories of agency and negligent entrustment. The District Court was under no duty to anticipate Jodie’s proof to establish a material and substantial issue of fact. Thornton, 868 P.2d at 640 (quoting Taylor v. Anaconda Federal Credit Union (1976), 170 Mont. 51, 57, 550 P.2d 151, 154). Jodie failed in her burden to raise any genuine issue of material fact that Jacque was Jack’s agent at the time of the accident or that Jack negligently entrusted his automobile to his daughter. Moreover, as a matter of law, Jack was not liable for Jacque’s alleged negligence merely because he was the owner of the automobile she was driving. As the trial court concluded:

Plaintiff could easily have named [Jack’s] daughter in this action, and father’s insurer would have been required to defend, no evidence of explicit exclusion from the policy having been shown. Simply because [Jack’s] car was involved in the accident does not make him the proper party to be named as Defendant. What is clear is that Plaintiff named the wrong party to this suit, and the three-year statute of limitations has since run. While naming [Jack] may have been no more than an unfortunate error, there exists no basis for him to be party to this lawsuit.

We hold that summary judgment was properly granted in favor of Jack on Jodie’s complaint, and that the District Court did not abuse its discretion in denying Jodie’s motion to alter or amend its ruling in that respect.

II.

The District Court’s granting Jodie’s motion to join Safeco as a party defendant in her lawsuit is a different matter, however. This issue is raised as a cross-appeal from Jodie’s appeal of the District Court’s order denying her motion to alter or amend and is, we conclude, properly before this Court — Jodie’s suggestion that the District Court’s order adding Safeco is not a final, appealable order, to the contrary. Inasmuch as we have concluded that summary judgment was properly granted in favor of Jack and, because, as noted by the District Court, the statute of limitations has run on any claim Jodie might have had against Jacque, Safeco is the only remaining party in the lawsuit. Since, in this case there is no legal basis on which Jodie can sue Safeco, it is proper that we dispose of this issue in order to conserve judicial resources and avoid further needless litigation. On Jack’s cross-appeal, we reverse the District Court’s order adding Safeco as a party to Jodie’s lawsuit.

While she has failed to establish liability against either of Safeco’s insureds, Jack or Jacque, Jodie maintains that she should, nevertheless, be able to sue Safeco directly. Jodie argues that under § 61-6-103(6)(a), MCA, the liability of the insurance carrier becomes absolute wherever injury or damage covered by the motor vehicle liability policy occurs. She also contends that Safeco is the real party in interest under Rule 17(a), M.R.Civ.R The District Court agreed with this latter contention, concluding that while Rule 17(a) speaks to the prosecution of matters by real parties in interest, including contractually related parties, the Rule should apply, as well, in matters of defense. Moreover, the District Court agreed with Jodie that Safeco’s liability stemmed from a contractual relationship with Jack, and that, accordingly, the longer contract statute of limitations applied to Safeco rather than the shorter tort statute. We disagree with Jodie’s arguments and with the District Court’s conclusions of law.

As noted by Justice Sheehy in his concurring opinion in State Farm Mut. Auto Ins. Co. v. Solem (1981), 191 Mont. 156, 622 P.2d 682,

the long-established rule in Montana [is] that a direct action against an insurer does not lie until the liability of the insured has been established, Conley v. U.S.F.&G. Co. (1934), 98 Mont. 31, 37 P.2d 565 and Cummings v. Reins (1910), 40 Mont. 599, 107 P. 904, and our further long-standing rule [is] that the injection of insuranee into the action determining liability is improper. Vonault v. O’Rourke (1934), 97 Mont. 92, 33 P.2d 535.

State Farm, 622 P.2d at 684-85. The reasons for this rule are set forth in 8 Appleman, Insurance Law and Practice, § 4861, p. 568 (1981):

The extent of the insurer’s liability has no relation to the personal injury action as such, other than as regards its duty to defend, and its presence in the case would only serve to confuse and complicate it, and prejudice the insured, the injured party, or both. ...

Because direct actions against a liability insurer contravene the common law, such a right must be expressly sanctioned by the legislature and not merely inferentially deduced.

Montana does permit a direct action against an insurance carrier under § 33-18-242, MCA, which, among other things, allows a third-party claimant, such as Jodie, to bring an independent cause of action against an insurer for actual damages caused by the insurer’s violation of certain subsections of § 33-18-201, MCA, the Unfair Trade Practices Act. Jodie’s claim against Safeco was not, however, based upon § 33-18-242, MCA, for conduct of Safeco prohibited by § 33-18-201, MCA. Rather, Jodie moved to join Safeco simply because she was left with no one else to sue; she had no cause of action against Jack, and her claim against Jacque was time-barred. Moreover, even if Jodie had brought suit against Safeco under § 33-18-242, MCA, subsection (6)(b) of that statute prohibits the third-party claimant from filing an action against the carrier until after the underlying claim has been settled or a judgment is entered in favor of the claimant on the underlying claim. See Harman v. MIA Service Contracts (1993), 260 Mont. 67, 73, 858 P.2d 19, 23.

Furthermore, Jodie’s contention that § 61-6-103(6)(a), MCA, supports her claim against Safeco is also misplaced. This subsection of the financial responsibility law does not authorize a direct action against an automobile insurance carrier, nor does this statute repeal the general rule prohibiting direct actions against an insurer until the insured’s liability is established. Rather, § 61-6-103(6)(a), MCA, freezes the liability of the insurance carrier at the point where injury or damage covered by the policy occurs. There is nothing in the cited code section, however, that obviates the tort claimant’s obligation to first establish that the insured was liable for the injuries or damages for which coverage under the policy is claimed. Simply put, unless and until the tort claimant establishes the liability of the tortfeasor, then there are no injuries or damages “covered by the policy.”

Additionally, we conclude that the District Court erroneously permitted joinder of Safeco under Rule 17(a), M.R.Civ.R That rule requires that every action be prosecuted in the name of the real party in interest. We have interpreted this rule to require a fully subrogated insurance carrier to bring suit in its own name against the wrongdoer responsible for the loss, because once the loss is fully paid by the insurer the insurer becomes subrogated to the insured’s claim against the wrongdoer and the insured no longer has a right of action against the wrongdoer. State ex rel. Nawd’s T.V. and App. Inc. v. District Court (1975), 168 Mont. 456, 459-60, 543 P.2d 1336, 1338 (citing United States v. Aetna Casualty & Surety Co. (1949), 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171). Obviously, that is not the situation in the instant case. There is nothing in the plain language of the rule nor in any authority cited by Jodie that supports her interpretation and the trial court’s conclusion that, by reason of the rule, an insurance company can be sued directly by a third-party claimant in the place of the insured tortfeasor. Rule 17(a), M.R.Civ.P., is not a direct action statute, and we decline to stretch the plain language of the rule to hold that it is.

Finally, we need only briefly address Jodie’s contention and the District Court’s conclusion that the statute of limitations for bringing Safeco into the litigation has not expired, because the eight-year contract, rather than the three-year tort statute of limitation applies. As pointed out above in our discussion of this issue, Jodie established no basis under statute or in common law for her direct action against Safeco. Accordingly, it follows that any discussion of what statute of limitations applies is irrelevant. Discussion of which statute of limitations applies to a cause of action presupposes that the plaintiff has a cause of action against the defendant in the first place. Jodie has no direct cause of action against Safeco because she has not established any liability on the part of Safeco’s insureds and because there is no applicable Montana statute or theory under which Jodie can sue Jack and Jacque’s insurer, absent her first establishing the insureds’ liability. Jodie has no contract with Safeco; she has pled no claim against Safeco for violation of the Unfair Trade Practices Act; and any liability on the part of Safeco for coverage of Jodie’s claims derives solely from the underlying liability of Safeco’s insureds — which Jodie has failed to establish.

We have reviewed Jodie’s arguments and authorities, but none support her attempt to join Safeco in this case. Accordingly, we hold that the District Court erred in allowing the joinder of Safeco as a party defendant under the circumstances, here, and we reverse the order of the District Court granting Jodie’s motion to add Safeco as a party to her lawsuit.

Affirmed as to Jodie’s appeal; reversed as to Jack’s cross-appeal.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, ERDMANN and LEAPHART concur.