author: MR. JUSTICE GULBRANDSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DARREL JAMES KESLER, Defendant and Appellant.
    No. 87-27.
    Submitted on Briefs June 25, 1987.
    Decided Sept. 1. 1987.
    741 P.2d 791.

      Jeannette Ellen Berry, Helena, for defendant and appellant.
    Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, A. Michael Salvagni, Co. Atty., Marty Lambert, Deputy Co. Atty., Bozeman, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Darrel James Kesler appeals a Gallatin County District Court judgment finding him guilty of driving while under the influence of alcohol in violation of Section 61-8-401, MCA. The sole issue on appeal is whether the District Court has appellate jurisdiction to review a Justice Court order suppressing evidence. We affirm.

On November 24, 1985, Darrel James Kesler was arrested and charged with the offense of driving while under the influence of alcohol in violation of Section 61-8-401, MCA. Kesler entered a plea of not guilty in Gallatin County Justice Court on December 3, 1985. The Justice Court set the pretrial conference for March 24, 1986, and ordered that all pretrial motions be filed twenty days prior to the conference. Trial in Justice Court was set for April 8, 1986.

On February 14, 1986, Kesler moved to dismiss the complaint on the grounds that the State had failed to make the arresting officer’s report available in accordance with a local Justice Court rule. The Justice Court rule requires that the State provide discovery within sixty days of a “not guilty” plea. The arresting officer of the Montana Highway Patrol did not prepare a formal report until sometime in February of 1986. The State received the report on February 14, 1986, and defense counsel received a copy on February 19, 1986.

The Justice Court heard Kesler’s motion to dismiss on March 5, 1986. In its memorandum and order of March 7, 1986, the Justice Court denied the motion to dismiss and ordered instead that any evidence from the arresting officer be suppressed. On March 12, 1986, the State appealed the Justice Court suppression order to the Gallatin County District Court pursuant to Sections 46-17-311(2), MCA, and 46-20-103(2)(e), MCA.

On June 6, 1986, Kesler filed a motion in District Court to affirm the Justice Court suppression order. The District Court denied this motion and stated that “[i]t has been the long-standing rule in Montana that district courts do not have supervisory or appellate reviewing powers over justice courts.” The District Court set trial for September 12, 1986. Kesler then applied for a writ of supervisory control to this Court on September 9, 1986, therein alleging the same issue as presented by this appeal. This Court denied Kesler’s application.

Prior to trial, Kesler moved to dismiss on the grounds that the District Court had appellate jurisdiction only and that Justice Court sanctions against the State are not appealable within the meaning of the statutes. The District Court denied both motions. On September 12, 1986, a Gallatin County jury found Kesler guilty of driving while under the influence of alcohol. The District Court later sentenced Kesler to twenty-four hours in the Gallatin County Detention Center and a $300 fine. The District Court also ordered that Kesler’s driver’s license be suspended for six months and that he attend the court’s alcohol and drug abuse school. This appeal followed.

Kesler argues on appeal that the District Court should have assumed appellate jurisdiction and reviewed only the Justice Court suppression order. A trial de novo, Kesler argues, is not within the District Court’s appellate jurisdiction under the circumstances presented by this case. However, Kesler’s arguments overlook the clear statutory language of Section 46-17-311, MCA, which provides the following in pertinent part:

“(1) All cases on appeal from justices’ or city courts must be tried anew in the district court . . .
“(2) A party may appeal to the district court by giving written notice of his intention to appeal within 10 days after judgment, except that the state may only appeal in the cases provided for in 46-20-103.”

Section 46-20-103, MCA, provides:

“(1) Except as otherwise specifically authorized, thé state may not appeal in a criminal case.
“(2) The state may appeal from any court order or judgment the substantive effect of which results in:
“(e) suppressing evidence;

In addition, the Montana Constitution provides that “[t]he district court shall hear appeals from inferior courts as trials anew unless otherwise provided by law.” Mont. Const. Art. VII, Section 4(2), Mont. Const. Finally, Section 25-33-301(1), MCA, states that “[a]ll appeals from justices’ or city courts must be tried anew in the district court . . .”

Kesler contends that Subsections (1) and (2) of Section 46-17-311, MCA, are ambiguous in that the former subsection requires trial de novo and the latter subsection makes reference to a statute, Section 46-20-103, MCA, that does not contemplate trial de novo. Kesler reasons that Section 46-20-103, MCA, pertains specifically to district court appeals to this Court and is designed solely to trigger interim appellate review. He concludes by asserting that this ambiguity should be settled in his favor to reverse his conviction.

We find that the statutes in question are not ambiguous as applied to the circumstances of this case. Section 46-20-103, MCA, merely lists those general instances in which the State may undertake an appeal from a lower court to a higher court. Nothing in the statute can be construed to prohibit trial de novo in a court of competent jurisdiction. In this case, the District Court was specifically vested with jurisdiction for a trial de novo on an appeal from Justice Court by Section 46-17-311(1), MCA, Section 25-33-301(1), MCA, and by Art. VII, Section 4(2), of the Montana Constitution.

Assuming arguendo that there is some ambiguity between Section 46-17-311, MCA, and Section 46-20-103, MCA, defendant has not convinced us that the legislature intended to prohibit a trial de novo when it amended the former statute to include theDcross-reference to the latter statute. The legislative history of the 1985 amendment reveals that the intent of the legislature was to overrule this Court’s decision in State v. Sanchez (1980), 187 Mont. 434, 438, 610 P.2d 162, 164, wherein we held that “the State has no right to appeal the final decision of a justice court in a criminal case . . . .”

Section 46-17-311(2), MCA, as amended, now permits the State to appeal justice court orders and judgments in certain circumstances. The clear intent of Section 46-17-311(1), MCA, is to require a trial de novo in district court on all appeals from justice court. The legislature could have prohibited a trial de novo in district court by amending Subsection (1) of Section 46-17-311, MCA. The legislature did not prohibit trial de novo when it amended the statute and we will not judicially amend the statute to create such a prohibition.

Kesler asserts that the Justice Court’s grounds to suppress evidence does not allow a similar motion to suppress to be made in the District Court. For that reason, he apparently chose not to move to suppress any evidence in the District Court, but rather sought to have the Justice Court suppression order affirmed. Without ruling on the propriety of the Justice Court’s suppression of evidence in this case, we recognize that a motion to suppress evidence can be asserted at either the justice court or the district court level if a defendant’s constitutional rights have in fact been violated. If Kesler had sufficient constitutional grounds to move for suppression of evidence in Justice Court, those grounds could have been reasserted in District Court in a new motion to suppress. We note here that Kesler did not move for suppression of evidence in either Justice Court or District Court. The Justice Court chose to suppress evidence on its own initiative rather than to dismiss the complaint as Kesler requested.

Kesler also contends that the effect of a trial de novo in this case is to deprive him of his constitutional due process and equal protection rights. He argues that the State’s appeal to District Court serves to avoid the consequences of the Justice Court suppression order. Kesler’s argument in this regard is without merit. On the one hand, Kesler alleges that his constitutional rights were violated by the State’s failure to provide a nonexistent report in the time prescribed by the Justice Court rule. On the other hand, Kesler failed to move to suppress the report in either Justice Court or District Court. As previously discussed, Kesler could have moved to suppress this evidence in District Court had he constitutional grounds to do so. Kesler made no such motion and the constitutionality issue is not properly before us on this appeal.

We again emphasize that a criminal case on appeal from justice court to district court must be tried anew in the district court pursuant to Section 46-17-311, MCA, regardless of which party appeals. Accord State v. Waymire (Mont. 1987), [226 Mont. 406,] 736 P.2d 106, 44 St.Rep. 759; Adair v. Lake County Justice Court (Mont. 1984), [213 Mont. 466,] 692 P.2d 13, 41 St.Rep. 2241. Accordingly, we hold that a district court does not have appellate jurisdiction to review a justice court order suppressing evidence. Nothing in this opinion should be construed to expand or limit the scope of the State’s right to appeal as set forth in Section 46-20-103(2), MCA.

Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE HUNT

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff/Respondent, v. SCOTT STEPHEN BRUSH, Defendant/Appellant.
    No. 87-097.
    Submitted on Briefs July 1, 1987.
    Decided Sept. 1, 1987.
    741 P.2d 1333.

      Joe L. Hegel, Miles City, for defendant/appellant.
    Mike Greely, Atty. Gen., Clay R. Smith, Asst. Atty. Gen., Helena, Keith D. Haker, Custer Co. Atty., J. Dennis Corbin, Deputy Custer Co. Atty., Miles City, for plaintiff/respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Appellant, Scott Stephen Brush, was convicted of sexual assault in District Court, Sixteenth Judicial District, Custer County, following a trial by jury. During the trial, defense counsel made a motion for a mistrial based on testimony introducing other crimes contrary to a pre-trial agreement. This motion was denied as was a similar motion for new trial and/or mistrial made after the jury verdict. Appellant appeals his conviction and the trial court’s denial of his motions for mistrial and new trial.

We affirm.

Brush raises three issues on appeal.

1. Did the District Court err in denying defendant’s motion for mistrial after police officer testified to other crimes in spite of prior agreement and without the required Just notice?

2. Did the District Court err in denying the defendant’s motion for new trial and/or mistrial upon the grounds that the officer’s testimony was prejudicial?

3. Did the District Court err by applying the wrong standard for determining whether the defendant was prejudiced by the officer’s testimony?

On August 19,1985, defendant Brush went to Bender Park located on the northeast side of Miles City where he struck up a conversation with a juvenile, J.L.O., age eight, accompanied by her eight month old brother. J.L.O. testified at trial that Brush asked her a lot of questions and then put his arms around her and rubbed her genital area when she bent over to place her brother in his stroller. She ran behind a building and when Brush did not pursue her, returned to the stroller, put her brother in it, and went to her home across the street. J.L.O. immediately told her mother that there was a man in the park who was asking her a lot of questions. Her mother then went over to the park, wrote down the license number of the defendant’s orange van and got a general description of the defendant who was still in the park. She called the police. Officer Newby responded to the call and was approached by two other children at the park, W.B.Z. and R.Z. They described the defendant and told Newby that he had tried to touch both of them in their “private parts.” At this time, J.L.O. arrived at the park and told the officer she had been touched in her “private parts” also. The defendant was eventually arrested after his van was identified and stopped at an intersection by other officers who found numerous opened and unopened beer bottles. Defendant admits talking to J.L.O. at the park but denies touching her.

Brush was charged by information under Section 45-5-502(1), MCA, on two counts 5f sexual assault against J.L.O. and W.B.Z. The counts were severed by order on December 20, 1985. This case deals only with count one regarding the offense against J.L.O. Upon learning that the State would call W.B.Z. to the stand as part of their case in chief, defense counsel requested that the State be prevented from asking W.B.Z. questions relating to the charge in the severed second ^count. The county attorney orally agreed to this before trial.

The controversy in this case surrounds the testimony given by Officer Newby. After relating the description of the defendant given by W.B.Z. and R.Z., the following occurred:

“Q. What other conversation did you have with the youth? A. I asked them basically what the problem was — you know, did they have any problem with this man. The nature of the call was ‘bothering’, so I then inquired of what was happening.
“Q. Did any of the youth explain to you? A. Yes.
“Q. Just continue, what occurred? A. Robin stated that the man was — that he talked very nice and he tried to touch both of them in their private parts.”

Defense counsel’s objection was sustained and the jury was directed to disregard any testimony concerning any other alleged offense. After the close of the State’s case, defendant entered a motion for mistrial which was denied, as was a motion for new trial and/or mistrial made after the verdict came in.

Appellant first contends that the State failed to conform to the procedural requirements of State v. Just (1979), 184 Mont. 262, 602 P.2d 957. The decision in that case requires that the prosecutor give reasonable notice to the defendant that he intends to introduce evidence of other crimes. Just, 602 P.2d at 963-64. The purpose of this rule is to insure that the defendant is fully informed of what crimes or charges he need defend against so that he will not be taken by surprise at trial. The trial court found that Newby’s testimony had been inadvertent. Both the county attorney and defense counsel agreed at trial that Newby’s testimony was not a planned part of the State’s case. Indeed, the county attorney had fully instructed Newby regarding such testimony in accordance with the pre-trial agreement. We fail to see how Just applies to a case where the county attorney never intended to introduce evidence of defendant’s other crimes and where the testimony was an unintentional response to a non-suggestive question as occurred here. Therefore, we conclude that no Just notice was required under these circumstances.

Appellant next contends that the introduction of Newby’s testimony was of “such an inflammatory nature” that the cautionary instructions given by the court “only served to reinforce the prejudicial effect in the minds of the jurors.” The standard for establishing prejudice is whether a substantial right was denied. Section 46-20-701, MCA; State v. Gray (Mont. 1983), [207 Mont. 261,) 673 P.2d 1262, 1266, 40 St.Rep. 2023, 2027; State v. Wells (1983), 202 Mont. 337, 349, 658 P.2d 381, 388. Only if there was a reasonable possibility that the inadmissible evidence might have contributed to the conviction is there reversible error. State v. Howell (Mont. 1987), [226 Mont. 148,] 734 P.2d 214, 217, 44 St.Rep. 542, 546; Gray, 673 P.2d at 1266; Wells, 658 P.2d at 388; State v. LaVe (1977), 174 Mont. 401, 571 P.2d 97.

Here, Officer Newby’s testimony was not purposely drawn out by the county attorney. Defense counsel agreed that it was an inadvertent slip. The testimony was neither graphic nor detailed and the county attorney made no effort to corroborate it. In addition, J.L.O.’s testimony was found by the trial court to be consistent with corroborating testimony and truthful. Under the above circumstances we find that even if there was error it was rendered harmless by the trial court’s cautionary instructions to the jury.

The general rule is that where the trial judge withdraws or strikes improper testimony from the record with an accompanying cautionary instruction to the jury any error committed by its introduction is presumed cured. State v. Smith (1986), [220 Mont. 364,] 715 P.2d 1301, 1308, 43 St.Rep. 449, 456; State v. Gray (Mont. 1983), [207 Mont. 261,] 673 P.2d 1262, 1266, 40 St.Rep. 2023, 2027; State v. Freeman (1979), 183 Mont. 334, 345, 599 P.2d 368, 374. As we discussed in Freeman, the jury cannot be presumed to ignore their duties to respect the instructions of the court and to decide a case based only upon the evidence admitted. Freeman, 599 P.2d at 374-75. See also State v. Armstrong (1980), 189 Mont. 407, 428, 616 P.2d 341, 353. The trial court gave three cautionary instructions admonishing the jury to disregard Officer Newby’s comment. One was given immediately after defense counsel’s objection. Another was given at the end of county attorney’s redirect examination of Newby and a third was given in jury instruction No. 14 as follows:

“INSTRUCTION NO. 14
“Testimony has been given by Officer Newby that during his initial investigation that he was told by two children that the defendant had touched them. You are instructed to erase this testimony from your minds and not allow it to influence you in any manner in determining if the defendant is guilty or not guilty of the offense of sexual assault against a child, [J.L.O.].”

Appellant argues that these repeated instructions only served to firmly fix Newby’s remark in the minds of the jurors. This argument is withbut merit. Evidence of other crimes is often admitted by courts for limited purposes with a corresponding cautionary instruction to the jury. This practice has been expressly approved and provided for by this Court in Just. Just, 602 P.2d at 964. To recognize that juries can hear of other offenses and use proper restraint in considering them only for a particular purpose but cannot ignore them completely when told to do so is illogical and inconsistent.

This case is very similar to the case of State v. Straight (1959), 136 Mont. 255, 347 P.2d 482, where the prosecuting attorney referred to the defendant’s beating of “children” instead of the single child who was the subject of the assault charge. This Court held that any error resulting from this remark was promptly cured by the judge’s admonishment to the jury to disregard the statement. Straight, 347 P.2d at 487. A similar result was demanded in State v. Liddell (Mont. 1984), [211 Mont. 180,] 685 P.2d 918, 41 St.Rep. 1293, where a rape victim “blurted out,” in departure from the established time sequence of her testimony, that the defendant had smoked a marijuana cigarette prior to the act charged. The State did not pursue this and we held that the evidence was made harmless by the trial court’s cautionary instruction. Liddell, 685 P.2d at 925. Accordingly we hold that any error caused by Newby’s inadmissible testimony was cured by proper admonishment of the jury.

The third contention of appellant is that the trial court used the wrong standard in denying the defendant’s motions for mistrial and motion for new trial. We do not agree.

As stated above the standard for determining reversible error is whether there was a reasonable possibility that the inadmissible evidence might have contributed to the conviction. Gray, 673 P.2d at 1266. The trial judge noted in his order of November 10, 1986 that he found J.L.O.’s testimony credible and consistent with corroborating testimony and that he was satisfied that the jury convicted only on the admitted evidence. Our role as an appellate court is to determine whether as a matter of law the trial court abused its discretion in denying a mistrial under these circumstances. State v. Close (Mont. 1981), [_ Mont. _,] 623 P.2d 940, 946, 38 St.Rep. 177, 193. To declare a mistrial there must be a manifest necessity to do so or the ends of public justice would be defeated. State v. Smith (Mont. 1986), [220 Mont. 364,] 715 P.2d 1301, 1308, 43 St.Rep. 449, 456; Close, 623 P.2d at 946. Similarly, to grant a new trial, the defendant must have been deprived of a fair and impartial trial or it is clearly within the interest of justice. See Gray, 673 P.2d at 1265-66; State v. Rose (1980), 187 Mont. 74, 83, 608 P.2d 1074, 1079. Because the trial court is in the best position to observe the jurors and determine the effect of questionable testimony it is given a latitude of discretion in its rulings on prejudicial evidence. See Gray, 673 P.2d at 1266 and cases cited therein.

This is not a case of prosecutorial misconduct which often forms the basis for a new trial. See Gray, 673 P.2d at 1265-66. As stated earlier no prejudicial error was shown. Officer Newby’s inadvertent statement was not graphic nor detailed and was not elaborated upon. Any prejudicial effect it may have had was promptly cured by the court’s cautionary instructions to the jury. The trial judge did not abuse his discretion in denying the defendant’s motions for mistrial and new trial.

Affirmed.

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


author: MR. JUSTICE SHEEHY

text:
    STATE OF MONTANA, Plaintiff/Respondent, v. WESLEY L. HARTFORD, Defendant/Appellant.
    No. 87-228.
    Decided Sept. 1, 1987.
    741 P.2d 1337.

      Lloyd E. Hartford, Billings, for defendant/appellant.
    Mike Greely, Atty. Gen., Helena, Harold F. Hanser, Co. Atty., Billings, for plaintiff/respondent.
   OPINION AND ORDER

MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Wesley L. Hartford was convicted of driving under the influence of liquor in the Yellowstone County Justice Court. He attempted to appeal his conviction, but his notice of appeal to the District Court, Thirteenth Judicial District Court, Yellowstone County, was not timely filed. The District Court dismissed his appeal and ordered that Hartford complete the sentence imposed on him by the Justice of the Peace Court. Hartford appeals from the order of the District Court.

Hartford’s issues on appeal to this Court are:

1. That his failure to file a timely notice of appeal from the Justice Court to the Yellowstone County District Court caused no harm or injury and constituted at the most “harmless error.”

2. That the actions, conduct and tactics of the state prosecutor as condoned by the Justice Court violated Hartford’s fundamental rights; that because thereof the District Court should have interceded and its failure to do so was an abuse of discretion and “plain error.”

On October 27, 1986, Wesley Hartford was charged with driving under the influence of alcohol. His case came on for trial before the Justice of the Peace for Yellowstone County, before a jury, which returned a verdict of guilty. On February 11, 1987, the date of his conviction, the Justice of the Peace pronounced judgment and sentence consisting of a $200 fine, 60 days in jail, all suspended, and attendance at a DUI court school. Hartford’s notice of appeal was filed with the Justice Court on March 4, 1987, and the record of the Justice Court was forwarded to the clerk of the District Court by certification on March 6, 1987.

In Montana, a right to appeal from a criminal conviction from justice court to a district court is purely statutory and arises from Section 46-17-311, MCA, which provides:

“(1) All cases on appeal from Justices’ or City Courts must be tried anew in the District Court
“(2) A party may appeal to the District Court by giving written notice of his intention to appeal within 10 days after judgment, except that the State may only appeal in the cases provided for in Section 46-20-103.”

In this case, a period of 21 days elapsed from the judgment to the filing of the notice of appeal. Thus, Hartford far exceeded the statutory allowance of 10 days for such notice.

Compliance with the statute is required to perfect an appeal from a Justice Court to the District Court because an appeal is exclusively a statutory right. State v. Province (Mont.1987), [226 Mont. 425,] 735 P.2d 1128, 44 St.Rep. 775, 776; State v. Mortenson (1978), 175 Mont. 403, 574 P.2d 581.

Without a timely notice of appeal, the District Court does not gain jurisdiction to consider an appeal from the Justice Court. State ex rel. Graveley v. District Court (1978), 178 Mont. 1, 592 P.2d 166, State v. Frodsham (1961), 139 Mont. 222, 362 P.2d 413.

Hartford contends, however, that our view of the necessity of strict compliance with the appeal statute has softened since our decision in Mortenson. Hartford cites State v. Main (1981), [- Mont. _,] 623 P.2d 1382, 38 St.Rep. 205; and, State v. Dubray (1982), 201 Mont. 327, 654 P.2d 970. In Main, the pertinent issue involved transmittal of the record, not the filing of a notice of appeal. Likewise, Dubray did not involve an untimely notice of appeal but rather the fact that Dubray had done everything possible to transmit the Justice Court record to the trial court. Dubray had fulfilled all of the criteria mandated in Section 46-17-311, MCA. 201 Mont. at 331, 654 P.2d at 972.

In State v. Tecca (1986), [220 Mont. 68,] 713 P.2d 541, 43 St.Rep. 180, Tecca filed a notice of appeal in the City Court which improperly stated that the appeal would be to the Justice Court rather than the District Court. There we granted 10 days to Tecca in which he could file a corrected notice. He had, however, filed a timely notice with the City Court.

The only authority giving a party a right to appeal from a criminal conviction in a justice court to a district court in Montana is Section 46-17-311, MCA. Unless a party has made timely compliance with that statute, the District Court does not acquire jurisdiction of the appeal. In this case, therefore, the District Court had no other course but to dismiss the appeal.

Hartford contends further, however, that the actions, conduct and tactics of the state prosecutor in the Justice Court violated his fundamental rights, which the District Court, in the interests of justice, should have recognized and corrected; and that its failure to do so constituted an abuse of discretion and “plain error.”

This contention calls for the impossible on the part of the District Court. A Justice of the Peace Court in Montana is not a court of record, and no transcript of the proceedings is available for review by the District Court or this Court for that matter. Hartford’s remedy lay in his right to appeal to the District Court where, if Hartford had timely appealed, he would be entitled to try his cause anew, with a jury, if he wished. Section 43-17-311, MCA. His de novo trial in the District Court would automatically erase any imperfections that may have occurred in the Justice Court trial. Again, his right to a trial de novo in the District Court depends upon a timely notice of appeal from the Justice Court.

We hold that the District Court properly dismissed Hartford’s attempted appeal from his criminal conviction in the Justice of the Peace Court.

Accordingly, this appeal is hereby dismissed. Let remittitur issue forthwith.

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


author: MR. JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff/Respondent, v. LARRY KAY SMITH, Defendant/Appellant.
    No. 86-487.
    Submitted on Briefs June 25, 1987.
    Decided Sept. 3, 1987.
    742 P.2d 451.

      O’Brien & Conrad, James P. O’Brien, Missoula, for defendant/ appellant.
    Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Missoula Co. Atty., Missoula, for plaintiff/respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Defendant, Larry K. Smith, appeals a jury verdict convicting him of aggravated kidnapping in the Fourth Judicial District, Missoula County. Defendant also appeals the sentence imposed. We affirm. The issues are:

1. Is the evidence sufficient to sustain Mr. Smith’s conviction of aggravated kidnapping?

2. Were the District Court’s instructions adequate?

3. Did the District Court abuse its discretion by not applying the reduced penalty provisions of Section 45-5-303(2), MCA, when sentencing the defendant?

The following uncontradicted facts come from the State’s case-in-chief. At approximately 12:30 a.m. on the night of February 28, 1986, the victim, a 20-year-old University of Montana sophomore, and a friend walked from their dormitory to Luke’s Bar in downtown Missoula. Later, when they left the bar they met the defendant, Mr. Smith, who was seated on a three-wheel motorcycle.

In the course of conversation, Mr. Smith asked the victim if she would like to go for a ride on his motorcycle. The victim eventually assented, generally agreeing to a “ride around the block” because it sounded like fun.

The victim got on the passenger seat. Rather than drive around the block, Mr. Smith drove south for several blocks, then made a U-turn and drove north again. Upon approaching the bridge over the river, Mr. Smith drove down toward the river where a restaurant is located. The victim admitted that she began to be concerned at that point, but she assumed Mr. Smith would turn around in the parking lot. Mr. Smith proceeded, however, past the restaurant to the end of the parking lot, then further west past the parking lot on a dirt path. As they continued west along the path, they drove underneath a traffic bridge and stopped.

Mr. Smith, a paraplegic, turned his body to the right, lifted or threw his left leg over the bike and grabbed the victim’s wrists. He ordered the victim to get off of the motorcycle. When she was standing in front of him, Mr. Smith pulled her toward himself as if to kiss her. The victim pulled away and told Mr. Smith, “No.”

The victim testified that at that point Mr. Smith “seemed very anxious — very angry and very agitated.” He either lowered himself to the ground while still holding the victim’s wrists firmly or the victim pulled away and he fell to the ground. He tried to pull the victim down to the ground, but she jerked away and turned to run. Mr. Smith caught the victim’s left leg, pulling her to her knees on the ground. A medical doctor and Mr. Smith’s girlfriend both testified that Mr. Smith was very strong in his upper body. He grabbed the victim’s hair and began hitting her, calling her a “bitch” and a “whore”. The following is a portion of the victim’s testimony:

“Q. Okay. You say you were on your knees. Can you describe for the jury how he was hitting you?
“A. He was hitting me very sharply in the back of the head with his fists. And then he was — he was hitting me, like, with karate chops to the back of the neck, very strong, very hard blows.
“Q. And what was he telling you to do?
“A. Kept telling me to get my face in the dirt. Told me if I didn’t keep my head down, he was going to hit me in the back of the head with a rock and cut off my head and cut off my hair.
“Q. What did you do then?
“A. I put my face down in the dirt.
“Q. About how many times do you think he gave you a karate chop?
“A. Oh, probably six to seven times.
“Q. Can you tell us how it felt?
“A. It was very painful. It was so hard that I felt as though I might pass out, and I was, you know, seeing stars. And so I tensed up as hard as I could to resist the blows.”

When the victim’s face was in the dirt, Mr. Smith released his hold on her and scooted toward his motorcycle. The victim testified that she thought he was reaching into his motorcycle to get something. She used this opportunity to get up and run away from Mr. Smith. She ran some distance to a footbridge which crosses a ditch. She ran across that footbridge and up to a residential street. The victim was afraid Mr. Smith might find her again so she kept running, eventually hiding behind a bush until certain he was driving in the opposite direction.

Mr. Smith was convicted of aggravated kidnapping. The District Court, upon adjudging Mr. Smith a dangerous offender, sentenced him to 20 years in the Montana State Prison.

I

Is the evidence sufficient to sustain Mr. Smith’s conviction of aggravated kidnapping?

Section 45-5-303(1), MCA, reads in part:

“A person commits the offense of aggravated kidnapping if he knowingly or purposely and without lawful authority restrains another person ... by using or threatening to use physical force, with any of the following purposes:
“(c) to inflict bodily injury on or to terrorize the victim or another

Mr. Smith argues this as a “specific intent” crime. In labeling the offense as such, Mr. Smith claims the prosecution must prove he had some “future mental state” to inflict bodily injury on or to terrorize the victim. Mr. Smith argues that this intent may not be inferred from his acts.

The language used when discussing mental state should be chosen cautiously to avoid confusion. The distinctions between “general” and “specific” intent were abandoned when the Montana Criminal Code was adopted. State v. Howard (1981), 195 Mont. 400, 407, 637 P.2d 15, 19.

The initial mental state which the State must prove is that the defendant knowingly or purposely restrained another person. The State also must prove that the defendant restrained the victim with the purpose “to inflict bodily injury on or to terrorize the victim Section 45-5-303(1)(c), MCA. Contrary to Mr. Smith’s argument, proof of this additional mental state does not require proof of a “specific intent” as found under common law, but, rather, requires proof of “purpose” as statutorily defined.

Mr. Smith argues that the State failed in its burden to prove beyond a reasonable doubt that he had the purpose to inflict bodily injury on or to terrorize the victim. Mr. Smith’s argument is based on his incorrect assumption that this purpose may not be inferred from his acts. Section 45-2-103(1), MCA, states:

“(1) A person is not guilty of an offense, other than an offense which involves absolute liability, unless, with respect to each element described by the statute defining the offense, he acts while having one of the mental states described in Subsections (33), (37), and (58) of 45-2-101. The existence of a mental state may be inferred from the acts of the accused and the facts and circumstances connected with the offense.” (Emphasis added.)

Section 45-2-101(58) defines “purpose” or “purposely”:

“[A] person acts purposely with respect to a result or to conduct described by a statute defining an offense if it is his conscious object to engage in that conduct or to cause that result . . . .”

These statutes, read together, show that a defendant’s purpose or conscious object may be inferred from his acts as well as from the facts and circumstances of the offense. The State was required to show that Mr. Smith knowingly or purposely restrained the victim with a purpose to inflict bodily injury on or to terrorize her. The fact that an additional mental state or “purpose” must be shown does not bar the trier of fact from inferring such purpose from the acts of the defendant and the facts and circumstances of the offense. Howard should not be read to reassert the common law distinction between specific and general intent accompanied by the differing schemes of proof, as Mr. Smith argues.

In the light most favorable to the State, when Mr. Smith grabbed the victim by the wrists and later grabbed her by the leg and pulled her to the ground by her hair, the jury could reasonably conclude that Mr. Smith knowingly or purposely restrained her. Further, the jury could reasonably conclude from Mr. Smith’s conduct that he restrained the victim for the purpose of inflicting bodily injury on or terrorizing her. The defendant threatened to cut the victim’s hair and head off, and in fact beat her on the head and neck repeatedly.

“The intent to restrain and the restraint, for any of the enumerated purposes, are the facts the jury must determine to establish an accused’s guilt of aggravated kidnapping. No additional facts need be proved in order to constitute the crime.”

State v. Stewart (1977), 175 Mont. 286, 300, 573 P.2d 1138, 1146.

Mr. Smith further asserts that the aggravated kidnapping statute does not contemplate “momentary restraints which are normally the subject of simple assaults.” The statute requires no specific proof regarding duration of restraint. If a specific period of time were required, then a fortunate escape by the victim, short of that specified length of time, would cut short the defendant’s liability regardless of defendant’s purpose and actions. Time is not the concern of the statute, but, rather, concern is for violence, terror, and danger while the victim is restrained. Model Penal Code and Commentaries Section 212.1 (1980). Montana’s aggravated kidnapping statute is based upon the Model Penal Code Section 212.1 (1962), the official draft of which required restraining “for a substantial period.” As the State correctly points out, the Criminal Law Commission and the Montana Legislature expressly omitted that element. A specific period of restraint is not an element of the offense. We hold that sufficient evidence exists in the record to support Mr. Smith’s conviction for aggravated kidnapping.

II

Were the District Court’s instructions adequate?

Mr. Smith contends the District Court erred by giving Instructions 12 (definition of restraint) and 18 (withdrawal of consent). He failed to object to Instructions 12 and 18 at trial. Generally, instructions cannot be challenged for the first time on appeal.

Mr. Smith argues that there is plain error involved which allows us to review the instructions under the holding in State v. Lundblade (Mont. 1981), [_ Mont. _,] 625 P.2d 545, 38 St.Rep. 441. In that case, we held that failure to give an instruction on the elements of the crime constituted plain error under Section 46-20-702, MCA (1981). Lundblade is no longer authority under this theory because Section 46-20-702, MCA, was amended in 1983 to read as follows:

“Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. No claim alleging an error affecting jurisdictional or constitutional rights may be noticed on appeal, if the alleged error was not objected to as provided in 46-20-104, unless the defendant establishes that the error was prejudicial as to his guilt or punishment and that:
“(1) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;
“(2) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the defendant or his attorney that prevented the claim from being raised and disposed of; or
“(3) material and controlling facts upon which the claim is predicated were not known to the defendant or his attorney and could not have been ascertained by the exercise of reasonable diligence.” Mr. Smith has failed to establish that the claimed error was prejudicial and that he meets one of the three qualifying requirements of the section.

Mr. Smith also contends that the instructions can be reviewed under State v. LaValley (1983), 203 Mont. 393, 661 P.2d 869. LaValley is not authority because there is no present contention of ineffective assistance of counsel. We conclude there was no error in giving Instructions 12 and 18.

Mr. Smith next contends that three additional instructions should have been given. He argues that the trial court failed to give an instruction defining force. No Montana statute defines force as used in this instance. He argues that a specific intent instruction was required; however, no requirement by law has been established. Last, Mr. Smith argues that it was error to omit a lesser included offense instruction on unlawful restraint. He cites as authority State v. Thomas (1966), 147 Mont. 325, 413 P.2d 315; State v. Sotelo (Mont. 1984), [209 Mont. 86,] 679 P.2d 779, 41 St.Rep. 568; State v. Furlong (Mont. 1984), [213 Mont. 251,] 690 P.2d 986, 41 St.Rep. 2096. Each of these cases is distinguishable by the fact that in each case the error cited by this Court was the trial court’s denial of defendant’s proffered instructions concerning a lesser included offense. In the case at bar, the defendant, Mr. Smith, never offered an instruction on unlawful restraint as a lesser included offense. He failed to present any of the instructions to the trial court. “Before the trial court will be put in error it must be given a chance to correct itself.” State v. Walker (1966), 148 Mont. 216, 223, 419 P.2d 300, 304. We conclude there was no error in omitting instructions concerning force, specific intent and unlawful restraint.

Ill

Did the District Court abuse its discretion by not applying the reduced penalty provisions of Section 45-5-303(2), MCA, when sentencing the defendant?

When the District Court imposes a sentence for aggravated kidnapping, Section 45-5-303(2), MCA, provides flexibility in sentencing a defendant who (1) voluntarily releases the victim, (2) in a safe place, and (3) not suffering from serious bodily injury. If these three factors are satisfied, the sentence may not exceed 10 years. Although the District Court made no specific findings regarding these factors, sufficient evidence exists in the record to support the District Court’s decision not to apply the reduced sentencing provisions.,

Mr. Smith argues that when he released his grip on the victim and moved toward his motorcycle, his conduct constituted voluntary release. The record shows that the release of Mr. Smith’s grip on the victim was immediately preceded by beatings and threats to cut off her head and threats to hit her with a rock if she did not keep her head down. The District Court certainly would be justified in refusing to perceive this conduct as a voluntary release. The court also would be justified in concluding, even assuming voluntary release, that the victim was not released in a safe place. The offense occurred under a dark overpass near the river at approximately 2:00 a.m. The fact that the victim did eventually reach safety is not at issue. We hold that the District Court did not abuse its discretion by refusing to apply a reduced penalty pursuant to Section 45-5-303(2), MCA.

Affirmed.

MR. JUSTICES HARRISON, SHEEHY,' HUNT and McDON-OUGH concur.


text:
    GERALD NELSON, Plaintiff and Appellant, v. SAN JOAQUIN HELICOPTERS, Defendant and Respondent.
    No. 86-498.
    Submitted on Briefs May 14, 1987.
    Decided Sept. 3, 1987.
    742 P.2d 447.

      W. Corbin Howard, Billings, for plaintiff and appellant.
    Morrow, Sedivy & Bennett, Ed Sedivy, Bozeman, for defendant and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Gerald Nelson appeals a judgment granting defendant San Joaquin Helicopters’ Motion to Dismiss for lack of in personam jurisdiction from the Eighteenth Judicial District Court in Gallatin County.

Reversed and remanded.

The issue on appeal is whether the District Court erred by dismissing Nelson’s complaint for lack of in personam jurisdiction.

In 1983, Nelson needed repairs performed on a helicopter. He first transported the helicopter to Garlick Helicopters, Inc. (hereinafter “Garlick”), a Montana corporation doing business in Hamilton, Montana. Garlick told him that they could not help him but recommended that he take the helicopter to San Joaquin Helicopters (hereinafter San Joaquin) which is a California corporation located in Delano, California. San Joaquin is not licensed to do business in Montana. Garlick had previously done business in California with San Joaquin and others but since January, 1982, Garlick has exclusively done business in the State of Montana. In 1981, Garlick and San Joaquin had entered into a contract whereby Garlick would deliver two helicopters and certain helicopter parts to San Joaquin. Garlick failed to deliver the parts San Joaquin ordered. San Joaquin admits making telephone calls from California to Garlick in Hamilton in an attempt to obtain various helicopter parts after Garlick moved to Montana. On some occasions, Garlick forwarded the requested parts to San Joaquin and on other occasions, Garlick did not. The parts never delivered by Garlick from 1981 through November, 1983, apparently equaled or exceeded $10,000.00 in value.

Upon Garlick’s suggestion, Nelson did in fact take the damaged helicopter to San Joaquin, made an agreement in California for its repair and did inspect it during its repair there. Subsequently, during the month of November, 1983, Nelson called San Joaquin from his home in Bozeman, Montana, and began negotiations by telephone with San Joaquin in California for them to purchase the helicopter because the cost of repairs was prohibitive. An agreement was reached sometime in November, 1983, by telephone wherein San Joaquin would purchase the helicopter for $10,000.00

Following their agreement, Nelson received a telephone call from San Joaquin informing him that he would be receiving a promissory note from Garlick who would in turn pay him the $10,000.00. The facts are disputed as to whether San Joaquin told Nelson that there would be no problem with the collectibility of the note; whether Nelson agreed to accept the note as full payment without recourse to San Joaquin; and whether Nelson was ever told that San Joaquin had been attempting to collect the amount they were owed from Garlick unsuccessfully for the previous two years.

San Joaquin prepared the promissory note which it forwarded to Garlick. Garlick signed the note. Nelson then transferred title of the helicopter to San Joaquin and the $10,000.00 promissory note was given to him by Garlick. Nelson eventually collected a total of $2,000.00 on the note from Garlick who now appears insolvent.

On August 7, 1985, Nelson filed a complaint against San Joaquin. San Joaquin moved the court to dismiss the complaint for lack of in personam jurisdiction. Interrogatories were sent and answered and Nelson was granted leave to amend his complaint to include a negligent misrepresentation or fraud count.

On September 5,1986, the District Court granted respondent’s motion to dismiss and Nelson appealed.

Appellant Nelson contends that the District Court abused its discretion when it dismissed his complaint for lack of in personam jurisdiction over defendant San Joaquin.

He argues that the following four factors establish that Montana courts may properly exercise personal jurisdiction over San Joaquin. First, he claims San Joaquin had a contractual relationship with a Montana resident, Garlick Helicopters, for approximately two years prior to entering the contract which is at the heart of this controversy. He claims they communicated with Garlick during that time attempting to obtain performance due under their contract.

Second, Nelson argues his initial repair contract with San Joaquin was a direct result of the recommendation of Garlick, a Montana resident.

Third, he argues San Joaquin negotiated and entered into a contract to purchase the helicopter with Nelson while Nelson was here in Montana.

Fourth, he argues San Joaquin, by its own initiative, created a contractual relationship between two Montana residents, Garlick and Nelson, by arranging for the one Montana resident to pay off the California resident’s debt to another Montana resident.

He claims these are sufficient minimum contacts with the State of Montana to warrant a holding of in personam jurisdiction.

The determination of in personam jurisdiction is a two step process. First, a determination must be made as to whether the party comes within the general jurisdiction of the court or qualifies under the long arm jurisdiction statutes. Rule 4B(1), M.R.Civ.P., states:

“Rule 4B. Jurisdiction of persons. (1) Subject to jurisdiction. All persons found within the state of Montana are subject to the jurisdiction of the courts of this state. In addition, any person is subject to the jurisdiction of the courts of this state as to any claims for relief arising from the doing personally, through an employee, or through an agent, of any of the following acts:
“(a) the transaction of any business within this state;
“(b) the commission of any act which results in accrual within this state of a tort action;
“(c) the ownership, use or possession of any property, or of any interest therein, situated within this state;
“(d) contracting to insure any person, property or risk located within this state at the time of contracting;
“(e) entering into a contract for services to be rendered or for materials to be furnished in this state by such person; or
“(f) acting as a director, manager, trustee, or other officer of any corporation organized under the laws of, or having its principal place of business within this state, or as personal representative of any estate within this state.”

Neither party argues that the defendant’s activities are so “substantial” or “systematic and continuous” to constitute finding defendant within the State so as to subject it to Montana’s general jurisdiction statutes. International Shoe Co. v. Washington (1945), 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95.

Nelson argues that although San Joaquin cannot be found within the State for general jurisdiction purposes, San Joaquin is subject to the long arm jurisdictional statutes under Rule 4B(1), M.R.Civ.P. because it both transacted business within Montana and was responsible for the accrual of a tort within the State.

We have previously held that for purposes of a motion to dismiss the allegations in the complaint must be taken as true so as not to deny a plaintiff his day in court. Willson v. Taylor (Mont. 1981), [— Mont. —,] 634 P.2d 1180, 38 St.Rep. 1606. The allegations in Nelson’s complaint are taken as true for purposes of determining whether jurisdiction lies with this State. See Jackson v. Kroll, Pomerantz and Cameron (Mont. 1986), [223 Mont. 161,] 724 P.2d 717, 43 St.Rep. 1622. We hold these allegations are sufficient to establish business transactions and an action in tort in Montana.

The second step in making a determination of in personam jurisdiction is to ask whether the exercise of our long arm jurisdiction would be commensurate with defendant’s due process rights. In Simmons v. State of Oregon (Mont. 1983), [206 Mont. 264,] 670 P.2d 1372, 40 St.Rep. 1650, we adopted the following test developed by the Ninth Circuit Court of Appeals in Data Disc, Inc. v. Systems Assoc., Inc. (9th Cir. 1977), 557 F.2d 1280:

“1. The non-resident defendant must do some act or consummate some transaction within the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking its laws.
“2. The claim must be one which arises out of or results from the defendant’s forum-related activities.
“3. Exercise of jurisdiction must be reasonable.”

Simmons, 670 P.2d at 1378.

As we stated in Jackson v. Kroll, 724 P.2d at 721, the examination of the following factors is necessary to determine what is a reasonable exercise of jurisdiction in such circumstances:

“1. The extent of defendant’s purposeful interjection into Montana;
“2. The burden on defendant of defending in Montana;
“3. The extent of conflict with the sovereignty of defendant’s state;
“4. Montana’s interest in adjudicating the dispute;
“5. The most efficient resolution of the controversy;
“6. The importance of Montana to plaintiffs interest in convenient and effective relief; and
“7. The existence of an alternative forum.”

See Taubler v. Giraud (9th Cir. 1981), 655 F.2d 991, 994, and Simmons, 670 P.2d at 1383-1385, 40 St.Rep. at 1661-1664.

We hold that an exercise of in personam jurisdiction over San Joaquin would not violate its due process rights under these circumstances.

A review of the record indicates the defendant’s activity cannot properly be summarized by simply stating as the lower court did, that there were a few phone calls back and forth between the parties. The defendant’s activities were more extensive and were sufficient to meet the “minimum contacts” standard required by this Court in Simmons, supra, in keeping with the federal courts holding on this issue. Pennoyer v. Neff (1877), 95 U.S. (5 Otto) 714, 24 L.Ed 565; World Wide Volkswagen v. Woodson (1980), 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490.

San Joaquin spent from 1981 to 1983 attempting to collect a debt from Garlick after Garlick moved its enterprise to Montana. Telephone calls were made to Garlick in Montana. Garlick shipped parts from time to time to California. San Joaquin interjected itself into Montana by its debt collection practices and continuing commercial relationship with Garlick.

Further the defendant in California did negotiate over the telephone with Nelson in Montana and eventually agreed to purchase the helicopter when the helicopter was in California for repairs. San Joaquin then interjected itself into Montana by arranging a contractual relationship between Nelson and Garlick in conjunction with its earlier agreement with Nelson. Consequently, the defendant was involved in three different contractual relationships with two different Montana residents, one of which is the subject of the underlying controversy.

In applying the Jackson v. Kroll, factors to this case to determine reasonable exercise of jurisdiction we find this activity indicates a purposeful interjection into Montana by San Joaquin.

No conflict with the State of California is evident in exercising jurisdiction over San Joaquin, although there will be some burden on defendant in defending in Montana.

The State of Montana clearly has an interest in adjudicating an alleged assignment of a bad debt in a commercial transaction from one Montana resident to another. Nelson does not appear to base his claims on the work done in California on his helicopter but rather bases them on San Joaquin’s alleged failure to pay an assignment of a Montana bad debt.

Most witnesses, except the owner of San Joaquin, are located in Montana and it appears Montana would be the most efficient location for trial.

We therefore hold that the State of Montana may properly exercise jurisdiction over defendant San Joaquin through application of its long arm jurisdiction statutes.

Reversed and remanded.

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


text:
    MERIDIAN MINERALS COMPANY, Plaintiff/Appellant, v. NICOR MINERALS, INC., and Nicor Mineral Ventures, Inc., Defendants/Respondents, and Costain Holdings, Inc., Intervenor/Respondent.
    No. 86-591.
    Submitted June 8, 1987.
    Decided Sept. 3, 1987.
    742 P.2d 456.

      Gough, Shanahan, Johnson & Waterman, Ronald Waterman, Helena, for plaintiff/appellant.
    Garlington, Lohn & Robinson, Gary Graham, Missoula, Goetz, Madden & Dunn, James H. Goetz, Bozeman, Mayer, Brown & Platt, Thomas P. Johnson, Denver, Colo., for respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Meridian Minerals Company (Meridian) appeals an adverse declaratory judgment entered in the District Court, Eighteenth Judicial District, Gallatin County. Meridian brought suit against Nicor Minerals, Inc. (Minerals) and Nicor Mineral Ventures (Ventures) for a declaration that the proposed transaction by Minerals to merge Ventures into a subsidiary of Costain Holdings, Inc. (Costain) triggered preemptive right and resignation provisions of a venture agreement between Meridian and Ventures. Costain intervened in the action, which was tried without a jury. The District Court entered judgment in favor of Minerals, Ventures and Costain. Meridian appeals from that judgment. We affirm.

In early 1984, Meridian, a wholly-owned subsidiary of Burlington Northern (BN), and Ventures, a wholly-owned subsidiary of Minerals (in turn a subsidiary for Nicor, Inc., a holding corporation for Northern Illinois Gas Company) entered into a venture agreement to develop a talc mine in Madison County, Montana. Although BN owned the talc site, it leased the mineral interest to Ventures and authorized Meridian to explore and develop the property with Ventures on BN’s behalf. Meridian and Ventures were the only parties to the agreement, each with a 50% interest in the venture.

In spring, 1985, Minerals began negotiations to merge its subsidiary, Ventures, with a subsidiary of Costain. Meridian learned of the deal and filed for a declaratory judgment from the District Court protecting what Meridian thought to be its preemptive right under the terms of the venture agreement. At issue here is the District Court’s interpretation of that right.

The agreement negotiators used a Rocky Mountain Mineral Law Foundation model form for their mining venture agreement. The form language of the agreement gave each participant a preemptive right to purchase the other participant’s interest in the agreement, before the other participant could transfer those interests to a third party. A clause was added by Meridian to the preemptive right provision form language which specifically brought within the limitations a transfer of protected interests effected by transfers of stock.

There were two other sections of this agreement central to this case. One, the agreement specifically excluded from the preemptive right a corporate merger of a participant. Second, it designated Ventures as the operator, but provided that a transfer by Ventures of its interest in the agreement would be deemed an offer to resign as operator.

The actual language of the contract follows:

“ARTICLE XV
“Transfer of Interest
“15.1 General. A Participant shall have the right to transfer, grant, assign, encumber, pledge or otherwise commit or dispose of (transfer) to any third party all or any part of its interest in or to this Agreement, its Participating Interest, or the Assets.
“15.2 Limitations on Free Transferability. The transfer right of a Participant in Section 15.1, expressly including a transfer of an interest effected by a transfer of stock, shall be subject to the following terms and conditions: (New language emphasized.)
<<* %
“(i) Such transfer shall be subject to a preemptive right in the other Participant as provided in Section 15.3.
“15.3 Preemptive Right. Except as otherwise provided in Section 15.4, if a Participant desires to transfer all or any part of its interest in this Agreement, any Participating Interest, or the Assets, the other Participant(s) shall have a preemptive right to acquire such interests as provided in this Section 15.3.
“15.4 Exceptions to Preemptive Right Section 15.3 shall not apply to the following transfers:
“(a) Transfer by a Participant of all or any part of its interest in this Agreement, any Participating Interest, or the Assets to an Affiliate;
“(b) Incorporation of a Participant, or corporate merger, consolidation, amalgamation or reorganization of a Participant by which the surviving entity shall possess substantially all of the stock, or all of the property rights and interests, and be subject to substantially all of the liabilities and obligations of that Participant; and (Emphasis ours.)
“(c) The grant by a Participant of a security interest in any interest in this Agreement, any Participating Interest, or the Assets by mortgage, deed of trust, pledge, lien or other encumbrance.
“8.4. Resignation; Deemed Offer to Resign. The Operator may resign upon two months prior notice to the Management Committee, in which case, if there is only one other Participant, such Participant may elect to become the new Operator by notice to the Management Committee within 30 days after the notice of resignation. If upon such resignation there are more than two Participants, the new Operator will be selected by the Management Committee, with only the nonmanaging Participants entitled to vote. If any of the following shall occur, the Operator shall be deemed to have offered to resign, which offer shall be accepted by the other Participant(s) by notice to the Operator, if at all, within ninety days following such deemed offer:
<<* * *
“(h) the Participant acting as Operator transfers its interests in the Venture and in the properties to a third party that is not an Affiliate.” (Emphasis ours.)

In spring, 1985, Nicor, Inc. decided to divest itself of its mineral interests, including the talc operation. The following October, Meridian found out about the proposed divestiture and wrote Ventures asserting the applicability of the Section 15.3 preemptive right. The president of Ventures responded that any contemplated transfer was not within the scope of the preemptive right because the right was restricted only to “participants,” and the transfer contemplated by Nicor, Inc., and Minerals was a transfer of shares by Minerals, not Ventures, and was therefore not restricted by the Ventures agreement.

Meridian’s response was to file an action for declaratory judgment in the District Court. Meridian’s argument was that insofar as the talc operation was concerned, the proposed merger was within the scope of the Section 15.3 Preemptive Right and Section 8.4 Deemed Resignation provisions.

In February, 1986, Minerals went one step further with the proposed merger, through a letter of intent with Costain. Under the terms of this letter the parties agreed that Minerals would surrender its shares in Ventures to Costain for cash or other consideration and that Ventures would be the surviving corporation to the merger. The parties further agreed that Ventures would retain all of its premerger assets and liabilities and would be bound by all of its premerger contracts. Ventures’ only change after the merger would be that its stock would be owned by Costain, not Minerals. The negotiations for the merger were exclusively between Costain and Minerals. Ventures did not participate in these negotiations, nor was its director/president informed of the plans to merge until after the decision was made by Nicor, Inc. and Minerals.

After Minerals and Costain entered into the February, 1986, letter of intent, Meridian amended its complaint to specifically address that transaction and sought further declaration that the Costain merger would constitute a deemed offer by Ventures to resign as operator (under Section 8.4). The Meridian suit was brought against Minerals and Ventures. Costain has intervened on Minerals’ and Ventures’ behalf.

Minerals, Ventures and Costain contend that the Costain merger did not trigger either the preemptive right or deemed resignation clauses of the Ventures agreement on the claim that the merger was a divestiture by Minerals of its interest in Ventures. The clauses were not enforceable, they argue, simply because Minerals was not a “participant” to the Ventures agreement. They also assert their right to avoid the preemptive right provision under the exception in the venture agreement providing that a corporate merger would not trigger Meridian’s preemptive rights.

Meridian’s position is that their specific addition of the qualifying phrase “expressly including a transfer of an interest effected by a transfer of stock”, was meant to prevent avoidance of the preemptive right by use of stock maneuvers. It further asserts that the qualifying phrase of Section 15.2 was also meant to modify the Section 15.4 merger exception, so the preemptive right merger exception would not apply to mergers transferring ownership of either party’s interest to an unaffiliated third party. In either case, Meridian asserts that this Court should not, in equity, allow the Nicor parties to use the merger form of the transaction as a device for avoiding the preemptive right. Finally, Meridian contends that the merger transaction constituted a deemed offer by Ventures to resign as operator under Section 8.4.

Issues raised on appeal are:

1. Was the District Court correct in determining that Minerals and Ventures were separate and distinct corporate identities and that Minerals was not bound by the preemptive right provision of the venture agreement between Ventures and Meridian?

2. Was the District Court correct in refusing to find that the qualifying language added to the preemptive portion of the venture agreement applied to the merger transaction between Minerals and Costain, as Meridian argued?

3. Was the District Court correct in holding that the proposed merger negotiated between Minerals and Costain properly fell within the merger exception of the venture agreement?

4. Was the District Court correct in finding that the merger did not trigger the deemed offer to resign as operator clause of the venture agreement?

Trial was held on July 10 and 11, 1986. On October 2, 1986, after extensive post-trial briefing and oral arguments by counsel, the District Court entered its Findings of Fact, Conclusions of Law and Memorandum, denying the relief sought by Meridian.

The District Court first held that Minerals was not a “participant” under the venture agreement and thus the Costain merger did not trigger either the preemptive right or the deemed resignation clauses. The court found that under the express terms of the venture agreement only Meridian and Ventures were “participants”; Minerals was not. Further the District Court found:

5. That from the following evidence the Court finds that Minerals and Ventures are separate and independent corporations;

“A. Ventures makes its own corporate decisions including budgets, venture agreements, and personnel matters.
“B. Ventures complies with all statutory requirements for corporate operations including Articles of Incorporation and By-Laws.
“C. Minerals and Ventures both have separate bank accounts.
“D. Ventures does not accept responsibility for Minerals’ debts.
“E. The business records are separate.
“F. The activities of the corporations are different and Ventures engages in exploration and development while Minerals is an investment company.
“G. Ventures’ principle offices are in Colorado and Minerals’ are in Illinois.
“H. Neither corporation has publicly represented that they are one and the same.
“I. The Boards of Directors are not identical.
“J. The presidents are different.
“K. Corporate funds have not been co-mingled nor has credit been used interchangeably to obtain Loans.”

The District Court held:

“4. That insufficient evidence was presented to this Court to conclude there was such a commonality of interests between the parent and subsidiary such that the parent Minerals can be considered the same as Ventures, thus allowing the Court to pierce the corporate veil and designate Minerals to be a participant in the Venture Agreement between Meridian and Ventures.
“5. That because Minerals was not a participant with Meridian, their negotiation with Costain does not trigger the preemptive clause to which Ventures and Meridian originally agreed.”

The District Court noted that the foregoing findings and conclusions, alone, were sufficient to defeat Meridian’s claims. Nonetheless, the District Court additionally held that the Costain merger was within the “corporate merger” exception to the preemptive right clause. The District Court found:

“17. That the transaction between Costain and Minerals would leave Ventures in the same condition as present except that Costain rather than Minerals would be the owner of the stock.
“18. That after the proposed transaction Ventures would continue to possess the same property rights and interests as present, and continue to be subject to all present liabilities and obligations.
“19. That Ventures’ assets are more extensive than the Venture Agreement with Meridian, and included considerable other assets such as mining claims, other mineral rights, and operations, and that all of these assets will remain in Ventures, which fact is important to conclude that a true merger was affected, and not a sale of the Talc Agreement.
“20. That the contemplated transaction contains the elements of a legal merger, and as such fits within the exception to the preemptive rights defined in 15.4.”

The District Court held:

“6. That the Venture Agreement between Ventures and Meridian is clear and unambiguous, and introduction of parol evidence did not modify the unambiguous term ‘merger’ in the joint venture agreement.
“7. That the Court finds no wrongful purpose behind the contemplated merger since the original Agreement specifically stated that a merger was an exception to the preemptive clause, which was bilaterally available to both parent corporations.
“8. That while the contemplated transaction involved the transfer of stock ownership in return for consideration, the survival of the entity with all its assets and liabilities indicates it can nevertheless meet the elements of a merger, as opposed to a sale, and fit within the parameters of the Venture Agreement exception.
“9. That because Ventures will maintain its interest in the Agreement, and maintain its assets and liabilities, this contemplated transfer would not involve the Section 15.3 elements of ‘interest’ in the Agreement, ‘Participating Interest,’ or ‘Assets.’
“10. That the evidence presented by the Plaintiff does not prove a ‘deemed offer to resign’ as Operator, under Article 8.4.”

Pursuant to its Findings of Fact and Conclusions of Law and Memorandum, the District Court entered judgment denying the relief requested by Meridian and granting the defendants’ request for a declaration that the Costain merger would not fall within the preemptive right or deemed resignation clauses of the Venture Agreement.

Meridian’s principal contention is that Minerals should not, in equity, be permitted to rely on the “legal fiction” of its subsidiary, Ventures’ separate existence to avoid the contractually obligatory preemptive right. Meridian urges this Court to reexamine the facts and exercise its equitable powers to pierce the corporate veil between Minerals and Ventures. Meridian asserts that the District Court’s failure to recognize the corporate fiction permits Ventures to take unfair advantage of Mineral’s insulation from the venture agreement. In support of its assertion that Minerals and Ventures are abusing their corporate privileges, Meridian argues that: 1) Three officers of Nicor, Inc. control the Board of Directors of both Minerals and Ventures; 2) That Minerals and Ventures share common board members, with the exception of one person; 3) That they share six common officers; 4) That Ventures’ operating funds are provided by Minerals, whose funds are in turn covered by Nicor, Inc.; 5) That when in need of funds, Minerals and Ventures merely issue stock to their parent corporation; 6) That Ventures and Minerals have expenditure limits which cannot be exceeded without consent of the parent corporation; 7) That Minerals has no operating assets, no separate offices and no separate employees from Nicor, Inc.; 8) That meetings of the boards for Minerals and Ventures were customarily one after another, and in one instance, simultaneously; 9) That Minerals and Ventures were subject to uniform operating procedures imposed by Nicor, Inc.; and, 10) That Minerals had knowledge of the preemptive right burden on the talc interest. In light of these facts, Meridian asserts, separate corporate identities should not be maintained. (We note, in passing, that points numbered 7 and 9 pertain to the relationship between Nicor, Inc. and its subsidiaries, Minerals and Ventures. At issue here is the relationship only between Minerals and Ventures.)

Meridian contends that the District Court operated under the misunderstanding that, in order to justify disregard of the corporate entity, the evidence must show that Minerals and Ventures were one and the same. Meridian further argues that the District Court’s findings (set out in the fact section of this opinion) merely reflect matters which can be arranged to create the appearance of separateness without infringing on the control of a subsidiary by a parent. Hence, it asserts, those facts should be given little weight in determining the applicability of the equitable identity theory. Meridian cites Section 3-2-204(5), MCA, as the standard of review supporting its position that equity regards the totality of the circumstances, and will permit piercing of the veil without imposition of strict checklists:

“In equity cases and in matters and proceedings of an equitable nature, the supreme court shall review all questions of fact arising upon the evidence presented in the record, whether the same be presented by specifications of particulars in which the evidence is alleged to be insufficient or not, and determine the same, as well as questions of law, unless for good cause a new trial or the taking of further evidence in the court below be ordered. Nothing herein shall be construed to abridge in any manner the powers of the supreme court in other cases.”

While Section 3-2-204(5), MCA, provides the applicable standard of review, it does not, as Meridian advocates, entitle Meridian to a de novo review of the evidence. This Court’s function in reviewing findings of fact in a civil action tried by a district court without a jury is not to substitute its judgment in place of the trier of facts but rather it is confined to determining whether the findings of fact are clearly erroneous. Rule 52(a), M.R.Civ.P. Although conflicts may

exist in the evidence presented, it is the duty and function of the trial judge to resolve such conflicts. His findings will not be disturbed on appeal where they are based on substantial though conflicting evidence. Olson v. Westfork Properties, Inc. (1976), 171 Mont. 154, 557 P.2d 821; Bender v. Bender (1965), 144 Mont. 470, 397 P.2d 957.

Further, there is a presumption when this Court reviews the evidence, that the trial court’s judgment is correct, and that any conflicting evidence must be resolved in favor of the ruling:

“Although this is an equity case and this court is bound to review all questions of law and fact raised on appeal, . . . nevertheless we are guided in our review by certain presumptions and rules of law. First, in entering upon a review of the evidence on appeal, this court indulges the presumption that the judgment of the trial court is correct, and will draw every legitimate inference therefrom to support the presumption. (Citation omitted.) Second, it is the trial court’s office to resolve inconsistencies in the testimony, and where the evidence, fully considered, furnishes reasonable grounds for different conclusions, the findings of the trial court will not be disturbed.” Havre Irrigation v. Majerus (1957), 132 Mont. 410, 414, 318 P.2d 1076, 1078.

Not only must conflicting evidence be resolved in favor of the District Court’s ruling, but Meridian must shoulder the burden of proving that the evidence preponderates against the finding. Thomas v. Ball (1923), 66 Mont. 161, 213 P. 597. Hence, to pierce the corporate veil Meridian is obligated to prove that Minerals and Ventures had no separate identity and that the corporate form was used as subterfuge to defeat a public convenience, justify a wrong or to perpetrate a fraud.

Central to addressing the issue of whether there are separate identities is the fact that Minerals was not a participant to the venture agreement. As defined by the agreement, a “participant” meant the people or entities that from time to time had “participating interests.” A “participating interest” meant the percentage interest representing the operating ownership interest of a participant in the assets and other rights and obligations under the agreement. The agreement stated that the “participants” were Meridian and Ventures, each holding a participating interest of 50%. Clearly, under these definitions neither Nicor, Inc. nor Minerals were participants bound by the contract.

There is no precise formula used to determine if a corporation is the alter-ego of its shareholder. However, in Comment, Piercing the Corporate Veil in Montana (1983), 44 Mont.L.Rev. 91, 95-97, the author identified the fourteen factors which this Court has relied on in past decisions:

“1. Whether the shareholder owns all or most of the corporation’s stock.
“2. Whether the shareholder is a director and/or the president of the corporation.
“3. Whether the shareholder makes all corporate decisions without consulting the other directors or officers.
“4. Whether the shareholder, officers and/or directors fail to comply with the statutory requirements regarding operation of the corporation.
“5. Whether the shareholder’s personal funds are commingled with the corporation’s funds.
“6. Whether the shareholder’s personal credit and corporation’s credit are used interchangeably to obtain personal and corporate loans.
“7. Whether the shareholder’s personal business records are not kept separate from corporation’s business records.
“8. Whether the shareholder and corporation engage in the same type of business.
“9. Whether the shareholder and corporation have the same address which is the address of shareholder’s personal residence.
“10. Whether the shareholder admits to third parties that the shareholder and the corporation are one and the same.
“11. Whether the corporation’s profits and earnings are distributed through means other than dividends.
“12. Whether the corporation is undercapitalized.
“13. Whether the parent and subsidiary have the same name.
“14. Whether the parent and subsidiary have the same directors and officers.”

The District Court did not strictly adhere to this formula but nonetheless made eleven specific findings of fact which supported its ultimate finding that Minerals and Ventures were separate and distinct corporations. These findings are listed in the statement of facts portion of this Opinion.

The trial court examined the evidence listed by Meridian and concluded that the evidence did not establish a commonality of interests between Minerals and Ventures sufficient to justify disregard of their corporate separateness. This Court is bound to uphold the trial court where its findings are not clearly erroneous. Rule 52(a), M.R.Civ.P.

Second, Meridian’s argument fails because it claims that because Minerals was the sole shareholder of Ventures, it exercised complete control over Ventures.

Under Montana law, control over a corporations by a single shareholder is not, by itself, enough to warrant piercing the corporate veil. State ex rel. Monarch First Ins. Co. v. Holmes (1942), 113 Mont. 303, 308-309, 124 P.2d 994, 996.

“A mere showing that one corporation is owned by another, or that the two share interlocking officers or directors is insufficient to support a finding of alter ego.”

Bonanza Hotel Gift Shop, Inc. v. Bonanza No. 2 (Nev. 1979), 596 P.2d 227, 229.

“Before the corporate cloak will be disregarded ‘it must appear not only that the corporation is controlled and influenced by one or a few persons, but, in addition, it is necessary to demonstrate that the corporate cloak is utilized as a subterfuge to defeat public convenience, to justify wrong, or to perpetrate fraud.’ ”

State ex rel. Monarch Fire Insurance Co. v. Holmes (1942), 113 Mont. at 308, 124 P.2d at 996. See also ECA Environmental Management Services, Inc. v. Toenyes (Mont. 1984), [208 Mont. 336,] 679 P.2d 213, 41 St.Rep. 388.

“[Organization of one company by another, or ownership of all stock of one company by another, or common officers and directors, or all these elements combined, are not sufficient to defeat separate corporate entity.”

Gillis v. Jenkins Petroleum Process Co. (9th Cir. 1936), 84 F.2d 74, 79.

We also note that Meridian failed to assert at trial that the corporate form had been used for some subterfuge. In the entire trial, the only “wrongful” conduct asserted by Meridian was that Minerals fashioned the Costain transaction as a merger in order to avoid the preemptive right clause. As the District Court did not find this conduct wrongful, Meridian failed to prove the second of the necessary elements justifying piercing the veil.

Meridian’s second assertion is that the District Court failed to construe properly the qualifying phrase “expressly including a transfer of an interest effected by a transfer of stock” in the venture agreement. Meridian asserts that this phrase means only one thing: that no interest in the venture agreement could be transferred to a third party, in avoidance of the preemptive right, by conveying to a third party the stock of the corporation which owned the interest. Meridian argued, using parol evidence, that the language was intended to apply the preemptive right provision to transfers by parent corporations. They argue that this intent should have been obvious given the circumstance where both of the signatory corporations were wholly-owned subsidiaries of corporate parents. They assert that the model form’s preemptive right provided little security because it was easily circumvented by passing the transfer of one corporation up the line. Their solution for this problem was to add a qualifying phrase which did not specify who was bound, but what was covered: any transfer, even one accomplished through Meridian a transfer of stock.

Minerals and Costain respond, and we agree, that Meridian’s argument attempts to create ambiguity where pone exists. The unambiguous language of Section 15.3 requires a transfer by a “participant” to trigger the preemptive rights provision. Further, the unambiguous language of other sections of the agreement, Sections 1.17, 1.18 and 6.1 provide that the only “participants” to the agreement were Ventures and Meridian. Meridian’s witnesses admitted that Section 15.3 explicitly applied only to transfers of stock by participants. Thus, the agreement cannot be construed as expressing a contractual intent to expand the preemptive right to transfers by Venture’s corporate parent.

As its third issue, Meridian asserts that the only reason Minerals fashioned the Costain transaction as a merger was to avoid the preemptive rights clause. Hence, it argues, the merger was a sham and should be disregarded in equity. Our conclusion is that Minerals was not a participant to the venture agreement and our holding is that the findings of sufficient corporate separateness are not clearly erroneous. We uphold the District Court’s refusal to pierce the corporate veil which negates the need for this Court to address the issues relating to the merger.

The venture agreement designated Ventures as operator, the entity responsible for the venture. Section 8.4 of the agreement recites circumstances under which the operator is deemed to have resigned. Section 8.4(h) provides that a participant resigns when “the participant acting as an operator transfers its interests in the venture and in the properties to a third party that is not an affiliate.” Meridian contends that the Minerals-Costain merger was a transfer under Section 8.4 and that the District Court should have found that Ventures was deemed to have resigned as operator.

Meridian’s argument fails for the simple reason that neither Costain nor Minerals were participants acting as operator. Ventures was the only participant acting as an operator and it did not transfer its interests in the venture or in the properties. Hence, the plain language of the deemed offer provision was inapplicable under the circumstances.

Affirmed.

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