author: CHIEF JUSTICE TURNAGE JUSTICE TRIEWEILER,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. SCOTT ANTHONY WOLFE, Defendant and Appellant.
    No. 90-591.
    Submitted on briefs May 31, 1991.
    Decided Nov. 14, 1991.
    250 Mont. 400.
    821 P.2d 339.

      J. Dirk Beccari and Marcia M. Johnson, Public Defender’s Offices, Missoula, for defendant and appellant.
    Marc Racicot, Atty. Gen., Elizabeth Griffing, Asst. Atty. Gen., Helena, Robert L. Deschamps III, County Atty., Fred Van Valkenburg, Deputy County Atty., Missoula, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Scott Anthony Wolfe (Wolfe) appeals his convictions of possession of explosives and criminal mischief following a jury trial in the Fourth Judicial District, Missoula County. We affirm.

Wolfe presents the following issues:

1. Did the District Court err when it denied Wolfe’s motion for dismissal under the 180-day speedy trial provision of the Interstate Agreement on Detainers?

2. Did the District Court err by subjecting Wolfe to double jeopardy when it entered judgment against him on possession of explosives and criminal mischief?

3. Did the District Court err by prejudicing Wolfe when it admitted evidence of Wolfe’s prior acts for the jury’s consideration?

4. Did the District Court err by denying Wolfe’s 1) motions for mistrial and related objections, and 2) motion for a directed verdict?

From 1981 to 1987, Wolfe worked for Montana Hearth Company, a small company located in Missoula, Montana. Montana Hearth Company quarried flagstone and manufactured stone hearth pads. Wolfe worked mainly in the company’s manufacturing shop in Missoula, but occasionally worked at the quarry sites, where he helped coworkers use blasting equipment to quarry the hearth stone.

Montana Hearth Company purchased its blasting equipment from various businesses in Montana. This blasting equipment included Aisla “Thistle” brand fuses, a rare brand of safety fuse manufactured in Scotland; blasting caps; and two types of dynamite, Atlas Giant Gelatin Sticks and Ireco Iremite.

Generally, Montana Hearth Company used its blasting equipment within two or three days of purchase. In January or February 1987, however, Ireco Iremite dynamite, Aisla “Thistle” brand fuses, and blasting caps were taken from a quarry site to the Missoula shop for storage. Around this time, Richard Bossard, a Montana Hearth Company co-owner, realized that a large amount of blasting caps and fuses were missing.

In the early morning hours of Easter Sunday on April 19,1987, an unmarked and unoccupied police car parked by the City Hall Building in Missoula was blown up by explosives. Following an expert examination of the scene of the explosion, examiners concluded that Aisla “Thistle” brand safety fuse and Ireco Iremite dynamite had been used to blow up the police car.

During the weekend of April 18-19, 1987, George Chaussee (Chaussee), a co-owner of Montana Hearth Company, stayed with Wolfe at an apartment rented by Darcy Estes Conover (Conover), Wolfe’s then-girlfriend. On the evening of April 18,1987, Wolfe asked Chaussee if he could borrow Chaussee’s truck. Chaussee agreed. Wolfe then departed from the apartment in Chaussee’s truck. Chaussee remained at the apartment that evening. Hours later, when Wolfe returned to the apartment, Wolfe woke Chaussee up and told Chaussee that he had blown up a police car. Because of their friendship, Chaussee did not inform authorities of Wolfe’s admission until he was subpoenaed by a federal grand jury.

On the evening of April 18, 1987, Michael Watson (Watson) saw and conversed with Wolfe at a bar near City Hall in Missoula. Watson testified that Wolfe declined to attend an early morning party on April 19, 1987, because Wolfe had “other things that he had to attend to.”

One week later, Wolfe stayed with Conover at Quinn Hot Springs located near one of Montana Hearth Company’s quarry sites. Conover teased Wolfe about firearms in his possession after reading newspaper articles concerning the police car explosion, which made reference to possible neo-Nazi involvement. Conover asked Wolfe if he was a neo-Nazi. According to Conover, Wolfe replied that her question was funny because someone had asked him if he had gotten religion the weekend before. Conover then asked Wolfe if he was referring to the police car explosion incident; Wolfe sarcastically replied, “yeah.”

Prior to Chaussee’s testimony before a federal grand jury, authorities suspected Wolfe of involvement in this police car explosion incident. In December 1986, pursuant to a federal search warrant, Missoula County Sheriff’s Department detectives searched a residence then shared by Wolfe and Chaussee. Among other things, the detectives found sticks of Atlas Giant Gelatin dynamite, Aisla “Thistle” brand safety fuses, blasting caps, and five destructive devices in Wolfe’s bedroom closet.

On January 17, 1989, Wolfe was charged by information with one count of possession of explosives in violation of § 45-8-335, MCA (1987), and one count of criminal mischief in violation of § 45-6-101, MCA (1987). Wolfe was imprisoned at a federal prison in Oakdale, Louisiana, at this time. On October 25, 1989, Wolfe filed with the District Court a motion to dismiss the information on the ground that his right to a speedy trial had been violated under the Interstate Agreement on Detainers (IAD). On December 15, 1989, the District Court denied Wolfe’s motion to dismiss, and later, denied Wolfe’s motion to reconsider following a hearing on the matter. Wolfe then petitioned this Court for a writ of supervisory control seeking dismissal of the information on the same ground. This Court dismissed Wolfe’s petition in an order dated March 20,1990, holding that Wolfe had an adequate remedy on appeal.

Following a jury trial, which began on July 11, 1990, Wolfe was found guilty of both crimes as charged. The District Court, on September 17, 1990, sentenced Wolfe to twenty years imprisonment for the conviction of possession of explosives, ten years imprisonment for the conviction of criminal mischief, and ten years imprisonment with five years suspended for being a persistent felony offender, all sentences to run consecutively. From these convictions, Wolfe appeals.

1. Did the District Court err when it denied Wolfe’s motion for dismissal under the 180-day speedy trial provision of the Interstate Agreement on Detainers?

On January 17, 1989, Wolfe was serving a federal prison sentence in Oakdale, Louisiana, when charges were filed against him in Montana regarding the police car explosion incident. On January 29, 1989, Wolfe wrote a letter to the Missoula County Attorney’s Office informing the office of his location so a detainer could be issued. On February 6,1989, the Missoula County Sheriff’s Office sent certified copies of the warrant and information in this case to Jessie Smith, an inmate technician at the federal prison in Oakdale, Louisiana, requesting that a detainer be lodged against Wolfe. On February 7, 1989, a Missoula deputy county attorney wrote a letter to Wolfe informing him that Montana was in the process of placing a detainer against him. In this letter, the deputy county attorney also advised Wolfe to discuss this matter with an attorney.

On February 24,1989, Wolfe wrote and informed his case manager at the federal prison of the Montana detainer. The case manager responded on February 26, 1989, and advised Wolfe to “Please come by and see me.” On February 27,1989, Wolfe requested the R. and D. Office (prison records department) of the federal prison “to get the paper work started on the Interstate Agreement on Detainers” because its completion would commence the 180-day time limit for Montana to bring Wolfe to trial on this matter.

According to Wolfe, his prison officials failed to “promptly forward” his request within a reasonable time. Besides Wolfe’s assertion, the record is devoid of evidence that prison officials failed to respond to Wolfe’s request within a reasonable time. Wolfe then researched the IAD in the prison law library and chose to proceed with the notification requirements under the IAD on his own and without the assistance of prison officials.

On March 2, 1989, three days after his request for assistance to the R. and D. Office, Wolfe sent by registered mail to the “County Court Clerk” in Missoula three copies each of the following: a Notice of Motion to Discover Exculpatory Evidence in Possession of Prosecutor; an Inmate’s Notice of Place of Imprisonment and Request for Disposition of Indictments, Informations, or Complaints form; a letter addressed to Robert L. Deschamps, the Missoula County Attorney; and a computer printout dated February 27, 1989, reflecting Wolfe’s status at the federal prison. Because the letter in the envelope sent by Wolfe was addressed to County Attorney Deschamps, the letter, enclosures and all copies therein were forwarded to the County Attorney’s Office and were not filed with the clerk of court. Wolfe later testified that he also included a handwritten note in this communication which stated to “Please distribute [the copies] to the right people.” There is no record that this handwritten note was received by the County Attorney’s Office and Wolfe did not retain a copy of it for his file, although he retained copies of all the other documents included in his March 2 mailing. Wolfe later acknowledged at a January 29,1990, hearing that these papers were not only incomplete but were improperly completed.

On March 7,1989, Wolfe prepared and forwarded three copies each of the following by registered mail to the United States District Court of Missoula: a revised Inmate’s Notice of Place of Imprisonment and Request for Disposition of Indictments, Informations or Complaints form; another letter to the Missoula County Attorney; the same computer printout sent in the March 2 mailing, and a typewritten note, which stated in part, “I APOLOGIZE FOR MAKING A MISTAKE ON THE LAST PAPER WORK THAT I SENT YOU .... PLEASE REPLACE THE OTHERS WITH THESE.” Apparently, this second mailing was forwarded by the United States District Court of Missoula to the Missoula County Attorney’s Office. Wolfe later testified that he once again included a handwritten note that indicated to “Please distribute [the copies] to the right people.” Again, however, there is no record that the Missoula County Attorney’s Office ever received this note, and Wolfe again could not produce a copy of the note from his records, although he maintained copies of all the other documents included in his March 7 mailing.

On October 25,1989, Wolfe moved the District Court for dismissal of the information on the ground that his right to a trial within the 180-day limitation under the IAD had been violated. The District Court denied Wolfe’s motion holding that Wolfe had failed to substantially comply with the IAD procedure in his March 2 and March 7 mailings. Wolfe moved the District Court to reconsider its holding. Following a January 29, 1990, hearing, where Wolfe testified about his March 2 and March 7 mailings, the District Court denied Wolfe’s motion to reconsider and specifically found Wolfe’s testimony at the hearing incredible. Wolfe’s trial later commenced on July 11, 1990.

Wolfe’s argument is two-fold. First, he argues that his February 27, 1989, request to the federal prison officials triggered the IAD’s 180-day time limit provision within a reasonable time after his request because of the prison officials’ failure to “promptly forward” documents. However, besides Wolfe’s own assertion, no evidence exists in the record that the prison officials failed to respond to Wolfe’s request within a reasonable amount of time. Furthermore, once Wolfe bypassed the prison officials and proceeded on his own to comply -with the IAD notice procedure, he assumed the burden for any deficiencies of notice. Hill v. Jones (1983), 94 A.D.2d 904, 463 N.Y.S.2d 655, 656.

Second, Wolfe argues that his March 2 and March 7 mailings were sufficient to trigger the 180-day requirement under the IAD. Upon reviewing the record, we agree with the District Court that Wolfe’s right to a speedy trial under the 180-day speedy trial provision of the IAD was not violated because Wolfe chose to bypass prison officials and then, on his own, failed to substantially comply with statutory procedure under the IAD, therefore failing to trigger the IAD’s 180-day speedy trial provision. The IAD in § 46-31-101, Art. III(l), MCA, provides in pertinent part:

“(1) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information, or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaintf.j ... The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of the commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.” [Emphasis added.]

Under the express terms of the IAD, Wolfe was required to send written notice and a request for final disposition of his information to both the Missoula County Attorney’s Office and the District Court. This he failed to do on two different occasions. We therefore hold that Wolfe was not denied his right to a speedy trial because he failed to comply with IAD procedure which would trigger the 180-day speedy trial provision.

2. Did the District Court err by subjecting Wolfe to double jeopardy when it entered judgment against him on possession of explosives and criminal mischief?

The Fifth Amendment of the United States Constitution protects a defendant “against both multiple prosecutions and multiple punishments imposed at a single prosecution for the same offense.” State v. Close (1981), 191 Mont. 229, 245, 623 P.2d 940, 949 (citing North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656). See also § 46-11-502, MCA (1989) (recodified at § 46-11-410, MCA (1991)). Here, Wolfe argues that he was subjected to double jeopardy because the crime of criminal mischief could not have occurred without the crime of possession of explosives. In particular, Wolfe relies upon § 46-11-502(2), MCA (1989), which provides that a person may not be convicted of more than one offense if “one offense consists only of a conspiracy or other form of preparation to commit the other ... (Emphasis added.)

Section 46-11-502, MCA (1989), was enacted as part of the 1973 Criminal Code. Its source was Model Penal Code, § 1.07 (Official Draft and Revised Comments 1962). Model Penal Code, § 1.07 commentary at 110, provides in pertinent part:

“Whether certain conduct is a form of preparation to commit another crime is left for judicial interpretation on the facts of the particular case in light of the legislative purpose reflected in the criminal statutes that are involved [footnote omitted] (emphasis added).”

Failure to limit the applicability of § 46-11-502(2), MCA (1989), may lead to results beyond those intended by the adoption of the statute. For example, Neal v. State (1961), 55 Cal.2d 11, 9 Cal.Rptr. 607, 357 P.2d 839, was a habeas corpus proceeding resulting out of Neal’s criminal conviction of arson and two counts of attempted murder. The evidence showed that Neal had thrown gasoline into the bedroom of Mr. and Mrs. Raymond and ignited it leaving the Raymonds severely burned. Neal, 9 Cal.Rptr. at 609, 357 P.2d at 841. In the habeas corpus proceeding, the California Supreme Court relied on a statute comparable to § 46-11-502(2), MCA (1989), and held that the arson was the means of perpetrating the attempted murders and that therefore the conviction of both arson and attempted murder violated the statute prohibiting conviction of two crimes when one was merely preparatory to the other. Neal, 9 Cal.Rptr. at 611, 357 P.2d at 843. In our view, that was not a just result.

As a further example of the unjust result obtained under Wolfe’s interpretation of § 46-11-502(2), MCA (1989), consider the effect of application of that statute to State v. Clawson (1989), 239 Mont. 413, 781 P.2d 267. In that case, Clawson was convicted of brutally abducting, torturing, committing multiple deviate sexual acts upon the victim, and, finally, after slamming her head into a rock and stabbing her fifteen times in her chest and abdomen, leaving her for dead. Clawson, 239 Mont. at 415-16, 781 P.2d at 269-70. He was convicted of aggravated kidnapping, sexual intercourse without consent, and attempted deliberate homicide. Clawson, 239 Mont. at 414, 781 p.2d at 268. Under the interpretation of § 46-11-502(2), MCA(1989), urged by Wolfe, Clawson could arguably have been convicted only of attempted deliberate homicide.

The State asserts that § 46-11-502(2), MCA (1989), addresses only inchoate crimes. Solicitation, conspiracy, and attempt are enumerated as the inchoate offenses in Title 45, Chapter 4, MCA. The State argues that these are the offenses which constitute “form of preparation to commit another crime” under § 46-11-502(2), MCA (1989). Invoking our power of judicial interpretation as recognized in the comments to the Model Penal Code, we agree. The two criminal statutes involved here are § 45-8-335, MCA (1987), possession of explosives, and § 45-6-101, MCA(1987), criminal mischief. The legislative histories of these statutes do not reflect an intent to make possession of explosives a preparatory act to committing criminal mischief. To the contrary, neither statute references the other. We conclude that § 46-11-502(2), MCA (1989), is limited in its application to situations where one crime charged is an inchoate crime. Neither criminal mischief nor possession of explosives is an inchoate crime. We therefore hold that, in this instance, § 46-11-502(2), MCA (1989), does not apply.

Wolfe cites State v. Mitchell (1981), 192 Mont. 16, 625 P.2d 1155. The defendant in Mitchell was convicted of criminal mischief and solicitation regarding the burning of a trailer house. On appeal, the defendant argued and this Court agreed that § 46-11-502 (2), MCA, applied to the case and the charged offenses, solicitation and felony criminal mischief. Mitchell, 192 Mont. at 22-23, 625 P.2d at 1159. However, solicitation is specifically described among the inchoate crimes listed in Title 45, Chapter 4, MCA. Therefore, § 46-11-502(2), MCA, was properly applied in that case, but that holding is not relevant here.

The facts of this case are analogous to the facts of State v. Davis (1978), 176 Mont. 196, 577 P.2d 375. In Davis, the defendants, two inmates, were convicted of felony criminal mischief and attempted escape when they dug a hole in the wall of the Powell County jailhouse. Davis, 176 Mont. at 197, 577 P.2d at 376. In that case, this Court did not apply § 46-11-502(2), MCA, or analyze whether the defendants’ digging of the hole was a form of preparation to commit an attempted escape. Instead, this Court held that double jeopardy did not apply because the statutes defining the charged offenses had no common elements citing, inter alia, Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. Davis, 176 Mont. at 199, 577 P.2d at 375.

In Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309, the Court stated:

“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.” [Citation omitted.]

We hold that the Blockburger test is the proper test to apply to the facts of the present case. Here, the applicable statutes concern possession of explosives under § 45-8-335(1), MCA (1987), and criminal mischief under § 45-6-101(1), MCA (1987). Section 45-8-335(1), MCA (1987), provided in pertinent part:

“(1) A person commits the offense of possession of explosives if he possesses, manufactures, transports, buys, or sells an explosive compound, flammable material, or timing, detonating, or similar device for use with an explosive compound or incendiary device and:
“(a) has the purpose to use such explosive, material, or device to commit an offense;... .”

Section 45-6-101(1), MCA (1987), provided in pertinent part:

“(1) A person commits the offense of criminal mischief if he knowingly or purposely:
“(a) injures, damages, or destroys any property of another or public property without consent;... .”

Regarding this case, the elements of possession of explosives are that a person possesses an explosive compound and has the purpose to commit an offense; the elements of criminal mischief are that a person knowingly or purposely injures or destroys public property without consent. The crime of possession of explosives requires the possession of an explosive compound where the crime of criminal mischief does not. The crime of criminal mischief requires injury or damage to property where the crime of possession of explosives does not. Because proof of one crime involves proof of a fact not included in the other crime as stated in the Blockburger test, we hold that Wolfe was not subjected to double jeopardy.

3. Did the District Court err by prejudicing Wolfe when it admitted evidence of Wolfe’s prior acts for the jury’s consideration?

On July 3,1990, the State filed with the District Court a notice of intent to introduce evidence of other acts under the requirements of State v. Just (1979), 184 Mont. 262, 602 P.2d 957 and § 46-18-503, MCA (1989) (recodified at § 46-13-108, MCA (1991)). The following were the other acts as provided in this notice:

“1. Conviction of II COUNTS: FELON IN POSSESSION OF FIREARMS, both Felonies, in Cause No. CR 87-7-M, United States District Court for the District of Montana. In such case the Defendant entered a plea of guilty on March 27, 1987, was sentenced on April 24,1987, and was taken into custody for execution of the sentence on April 27, 1987.
“2. The offense of CRIMINAL POSSESSION OF DANGEROUS DRUGS WITH INTENT TO SELL, a Felony, in Cause No. 7663, Fourth Judicial District, Missoula County, Montana, committed on December 11, 1986, and evidence relating to a search of the Defendant’s residence on the above date in which dynamite, blasting caps, and Aisla ‘Thistle’ brand safety fuses were found.”

On July 11, 1990, in an in-chambers proceeding prior to Wolfe’s trial, the District Court denied the State’s request to introduce evidence of prior convictions and charged offense, but allowed the State to introduce the fuses, Atlas Giant Gelatin Stick dynamite, and blasting caps seized pursuant to the search warrant. Wolfe argues that the District Court erred when it allowed the admission of the fuses, dynamite, and blasting caps. We disagree.

Rule 404(b), Montana Rule of Evidence, provides that “other crimes, wrongs or acts” evidence may be admissible for the purposes stated in the rule. One additional basis for admission of such evidence recognized by this Court is when evidence of other crimes, wrongs, or acts is introduced as part of the corpus delicti of the crime charged. State v. Ungaretti (1989), 239 Mont. 314, 319, 779 P.2d 923, 926. Other crimes, wrongs, or acts evidence may be introduced if they “are inextricably or inseparably related to the crime charged.” Ungaretti, 239 Mont. at 319, 779 P.2d at 926 (citing State v. Gillham (1983), 206 Mont. 169, 679 P.2d 544).

Here, fuse found by police in Wolfe’s bedroom closet in December 1986 was “Aisla” Thistle brand fuse, a rare brand of fuse and the same brand of fuse used to blow up the police car four months later on April 19, 1987. The dynamite seized in December 1986 was not Ireco Iremite, the dynamite determined by experts to have been used to blow up the police car, but rather, Atlas Giant Gelatin Sticks, the other type of dynamite purchased by Montana Hearth Company for its operation. Both types of dynamite were accessible to Wolfe while he was employed at Montana Hearth Company.

The difference in the brands of the dynamite seized from Wolfe’s bedroom closet in December 1986 and the dynamite determined to have been used in the police car bombing is not determinative in this case. What is determinative is that the dynamite, as well as the fuses and blasting caps seized in December 1986, is evidence closely related to the crimes charged against Wolfe in 1987, possession of explosives and criminal mischief. Moreover, the District Court only allowed evidence of the fuse, dynamite, and blasting caps found in the December 1986 search. It disallowed any reference to Wolfe’s past convictions or offense to avoid any undue prejudice toward Wolfe. We hold that the fuse, dynamite and blasting caps seized in December 1986 were part of the corpus delicti of the 1987 crimes, and the District Court committed no error in allowing them into evidence at Wolfe’s trial.

4. Did the District Court err by denying Wolfe’s 1) motions for mistrial and related objections, and 2) motion for a directed verdict?

Wolfe’s counsel moved for a mistrial after a federal agent testified that the fuse and explosives were seized under a federal search warrant. After this reference, the District Court issued a cautionary instruction to the jury concerning other crimes evidence. Thereafter, the District Court denied Wolfe’s motion for mistrial. The record is devoid of further references to the federal search warrant.

An unresponsive comment was made by Chaussee, who stated, “I don’t feel anybody could be happy about going to jail.” Wolfe’s counsel refused the District Court’s offer of a cautionary instruction to the jury after Chaussee’s comment, and then moved the District Court for a mistrial based on this comment. The District Court once again denied the motion. The record is devoid of further references to Wolfe’s past or future imprisonment.

Wolfe’s counsel objected to a reference made by Conover, Wolfe’s then-girlfriend, that revealed Wolfe was in possession of firearms one week following the police car explosion incident. The District Court overruled the objection.

Finally, Wolfe argues that the District Court erred when it denied Wolfe’s motion for a directed verdict because the jury’s verdict in this case was against the weight of the evidence.

“There must be a manifest necessity to declare a mistrial, and the defendant must have been deprived of a fair and impartial trial.” Clawson, 239 Mont. at 423, 781 P.2d at 273 (citation omitted). We hold that any prejudice caused to Wolfe by the references cited above was minimal in light of the entire record and the references did not deprive him of a fair and impartial trial.

Regarding Wolfe’s motion for a directed verdict, we find that substantial evidence supported the jury’s verdict in this case and that the District Court properly denied Wolfe’s motion for a directed verdict at the close of this case. We therefore hold that the District Court committed no error when it 1) denied Wolfe’s motions for mistrial and related objections, and 2) denied Wolfe’s motion for a directed verdict.

JUSTICES HARRISON, GRAY, McDONOUGH, and WEBER concur.

JUSTICE TRIEWEILER,

specially concurring in part and dissenting in part:

I concur with those parts of the majority opinion which affirm the defendant’s conviction of criminal mischief pursuant to § 45-6-101, MCA.

I dissent from that part of the majority opinion which holds that, under the circumstances in this case, the defendant can be convicted of both criminal mischief and possession of explosives without violating § 46-11-502(2), MCA.

A person violates § 45-8-335, MCA, if:

“[H]e possesses ... an explosive compound ... and:

“(a) has the purpose to use such explosive, material, or device to commit an offense ... .” [Emphasis added.]

In other words, an essential element of the crime of possession of explosives is the intent to commit an offense.

In this case, the State proved a violation of § 45-8-335, MCA, by establishing that defendant possessed explosives with the intent to damage or destroy a City of Missoula police vehicle.

Section 45-6-101, MCA, provides that:

“(1) A person commits the offense of criminal mischief if he knowingly or purposely:
“(a) ... damages, or destroys any property of another or public property without consent... .”

The defendant could not have committed the crime of criminal mischief without first having formed the intent to damage or destroy the City of Missoula’s police vehicle. The formation of that intent was merely preparatory to commission of the offense. However, in this case, defendant is being separately punished for both formation of the intent and commission of the act of criminal mischief.

To understand the significance of what is happening here, you need only look at the penalties provided for under each statute. The maximum penalty for criminal mischief under § 45-6-101, MCA, is ten years. The maximum penalty for possession of explosives under § 45-8- 335, MCA, is 20 years. In this case, defendant was sentenced to the maximum term for each offense, with ten years suspended. However, the sentences are to be served consecutively.

The majority relies on language from Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, for the proposition that the consecutive sentences imposed in this case do not violate the Fifth Amendment prohibition against double jeopardy. However, it is not necessary to consider whether what was done here violates the United States Constitution. Stacking on prison terms for various acts which culminate in one offense is exactly what § 46-11-502(2), MCA, was designed to prevent.

Forming the intent to bomb the Missoula police vehicle and actually carrying out that intent, constitute the “same transaction” under Montana criminal law. Section 46-11-501, MCA, defines “same transaction” as follows:

“(1) The term ‘same transaction’ includes conduct consisting of:
“(a) a series of acts or omissions which are motivated by a purpose to accomplish a criminal objective and which are necessary or incidental to the accomplishment of that objective ... .”

In this case, possessing explosives was not an offense in and of itself. In order to constitute a crime, the explosives had to have been possessed by the defendant for the purpose of committing a crime. The only crime for which defendant possessed explosives in this case was to blow up the Missoula City police vehicle. Defendant’s possession of explosives and actually blowing up the police vehicle were a series of acts motivated by a single criminal objective, and, therefore, constitute the “same transaction.”

Under these circumstances, § 46-11-502, MCA, provides the following prohibition:

“When the same transaction may establish the commission of more than one offense, a person charged with such conduct may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
* * *
“(2) one offense consists only of a conspiracy or other form of preparation to commit the other ... .”

Clearly, in this case, possessing explosives for the purpose of blowing up a police vehicle was a “form of preparation” for actually blowing up the same vehicle.

The majority disposes of § 46-11-502(2), MCA, by concluding (without citation to any authority) that “§ 46-11-502(2), MCA ... is limited in its application to situations where one crime charged is an inchoate crime.” I disagree with that conclusion because it provides a requirement for the application of § 46-11-502(2), MCA, which was neither provided by the legislature, nor finds precedent in any case law which has been cited to this Court.

The majority goes on to conclude that “[njeither criminal mischief nor possession of explosives is an inchoate crime.” However, I do not agree.

“Inchoate” is described in Black’s Law Dictionary as “[ijmperfect; partial; unfinished; begun, but not completed ... .” A necessary element of the crime of “possession of explosives” is “the purpose to use such explosive, material, or device to commit an offense ... .” Therefore, possession of explosives is exactly the kind of “inchoate crime” or “anticipatory offense” for which double punishment is proscribed under § 46-11-502(2), MCA.

The legislature has seen fit to limit punishment for criminal mischief to ten years in the State Prison. However, in essence, the defendant in this case has had another 20 years added on to that sentence for forming the intent to commit the crime in the first place. That is clearly a double punishment for the same crime.

For these reasons, I would reverse that part of the District Court judgment which imposed a sentence of 20 years on the defendant for possession of explosives. I would vacate and dismiss that sentence and affirm that part of the District Court judgment convicting the defendant of criminal mischief and sentencing him to the State Prison for that crime.

JUSTICE HUNT concurs with the foregoing partial concurrence and partial dissent of JUSTICE TRIEWEILER.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    TERRY DUMONT, Plaintiff and Respondent, v. DARRELL D. TUCKER, Defendant and Appellant.
    No. 91-059.
    Submitted on briefs Aug. 1, 1991.
    Decided Nov. 14, 1991.
    Rehearing Denied Dec. 18, 1991.
    250 Mont. 417.
    822 P.2d 96.

      Robert L. Johnson, Lewistown, for defendant and appellant.
    Torger S. Oaas, Lewistown, for plaintiff and respondent.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Terry Dumont sued Darrell D. Tucker in the Tenth Judicial District Court in Fergus County to enforce an installment sales contract. Tucker counterclaimed for breach of a non-competition covenant contained in the contract. The District Court granted Dumont’s motion for summary judgment, dismissing Tucker’s counterclaim. After a bench trial, the court entered judgment in favor of Dumont, awarding damages, costs, and attorney’s fees in the amount of $31,550.34. Tucker appeals. We affirm.

The issue on appeal is whether the District Court’s ruling that the non-competition covenant was overly broad entitled Tucker to a total or partial refund of the price he originally paid for it.

In a contract dated June 23, 1986, Dumont agreed to sell and Tucker agreed to buy a public accounting practice in Lewistown. The parties agreed upon a total purchase price of $60,000. Tucker agreed to pay this amount by assuming two Small Business Association loans totaling $38,500 and then executing a promissory note for the remaining balance. Under the terms of the promissory note, Tucker agreed to make monthly payments beginning in February 1987.

The sale contract also contained the following non-competition covenant:

COVENANT NOT TO COMPETE

“The Seller hereby covenants and agrees that for a period of five (5) years from the date of this agreement, he will not engage in the profession of accountancy either on his own behalf or as a partner or employee of any business entity at any place within one hundred (100) miles of Lewistown in any direction.”

The attorney who drafted the contract worked from a written purchase offer submitted by Tucker. This written offer specifically included a 100-mile non-competition covenant. The contract allocated $35,000 of the $60,000 purchase price to this non-competition covenant.

By late 1987 or early 1988, Tucker began to hear rumors that Dumont was not strictly complying with the non-competition covenant. After selling the business, Dumont went to work for a public accounting firm in Palm Springs, California. Tucker learned that Dumont had been in Lewistown from time to time, that he had been in contact with some of his former clients who still lived in Lewistown, and that he had actually prepared tax returns for them through the mail. Then Tucker discovered that Dumont had moved to Billings and taken a job as a seasonal tax preparer with a public accounting firm there.

Tucker ceased making monthly payments on March 10, 1988. By then the remaining balance was $17,662.12. On May 5,1988, Tucker wrote Dumont a letter explaining that he considered the non-competition covenant “totally worthless” as a result of the Lewistown tax returns Dumont prepared in California. Dumont responded on August 2, 1988, by accelerating the remaining balance due on Tucker’s promissory note. This lawsuit followed.

Early in the litigation, Tucker counterclaimed for damages allegedly arising from Dumont’s breach of the non-competition covenant. Dumont moved for summary judgment on the counterclaim on the basis that § 28-3-704, MCA, limits non-competition covenants to the county of sale and the contiguous counties. Yellowstone County, the county in which Tucker alleged the competition occurred, is not contiguous to Fergus County. On May 17, 1990, the District Court granted Dumont’s summary judgment motion, holding that the non-competition covenant was void as to Yellowstone County.

Tucker then moved for summary judgment on the basis that the invalidity of the covenant in Yellowstone County relieved him of any obligation to pay for it. The District Court denied Tucker’s motion.

By addendum to the pretrial order, Tucker advised Dumont and the District Court that he was now seeking an adjustment of the purchase price based on the invalidity of the covenant in Yellowstone County. Evidence submitted at trial, however, showed that the parties had not agreed upon what would happen if the non-competition covenant was partially invalidated. The court found that Tucker had breached the sale contract, and refused to refund any of the purchase price based on the partial invalidity of the non-competition covenant.

Did the District Court err in refusing to refund any part of the $60,000 purchase price to Tucker based on the partial invalidity of the non-competition covenant in Yellowstone County?

Tucker argues that he is entitled to an adjustment of the contract purchase price because part of the consideration for that purchase price failed when the District Court found the non-competition covenant to be void in Yellowstone County. In support of this contention, Tucker cites § 28-2-604, MCA, which provides:

“Where a contract has several distinct objects of which one at least is lawful and one at least is unlawful, in whole or in part, the contract is void as to the latter and valid as to the rest.”

Essentially, Tucker argues that this statute precludes partial invalidity rulings like the one at issue in this case, and that therefore, the non-competition covenant must be entirely void if it is void in Yellowstone County. Thus, he seeks a refund of the entire $35,000 he paid for the covenant.

We disagree. In Treasure Chemical, Inc. v. Team Laboratory Chemical Corp. (1980), 187 Mont. 200, 609 P.2d 285, we affirmed a decision of the District Court that limited the reach of a non- competition covenant without voiding it entirely. Under this “blue pencil approach” the District Court in the instant case acted correctly in limiting the non-competition covenant to the contiguous counties as required by § 28-2-704, MCA. The court’s action did not void the covenant entirely, and we reject Tucker’s attempted misapplication of § 28-2-604, MCA, to arrive at that result. Thus, his claim for a refund of the entire $35,000 price of the covenant is unfounded.

We find no additional merit in his claim for a partial refund. On appeal, he argues that the whole point of the covenant was to prevent Dumontfrom competing with him in Billings, GreatFalls, and Havre. We note that the covenant itself does not so provide. The covenant merely forbids competition within 100 miles of Lewistown in any direction.

We find that even if § 28-2-704, MCA, did not confine the operation of the covenant to the contiguous counties, it still would not apply to Dumont’s accounting activity in Billings. In this regard, the District Court said:

“Initially, the Court finds an ambiguity in the original covenant not to compete because it is unclear whether the area of protection afforded by the covenant is to be measured by air miles or highway miles.

Helping resolve this ambiguity is the following passage from 54 Am.Jur.2nd Monopolies Etc. § 521, which reads:

“ ‘Contracts not to compete are by their nature in restraint of trade and are not favorably regarded by the courts. In interpreting or construing contracts which impose restrictions on the right of a party to engage in a business or occupation, the court is governed by a strict rule of construction. The agreement will not be extended by implication, and it will be construed in favor of rather than against the interest of the covenantor.’ ”

This policy is statutory law in Montana, § 28-2-703, MCA.

“The Court finds that the distance stated in the original covenant not to compete is the distance by the most common mode of travel by automobile over the public highways by the shortest practicable route.
“Though air travel is not uncommon, it is not the most usual mode of travel by the accountancy client. The use by the drafter of the original covenant of the phrase ‘100 miles in any direction’ in light of all the evidence, without any limitation on this phrase as it pertains to the most common method of travel to Billings, is more indicative of an intent of the parties to exclude, rather than include, Billings in the area protected by the covenant.
“Defendant’s Exhibit D, the map of Montana, shows that the closest distance by highway for Lewistown to Billings to be 129 miles. This is the relevant distance between Lewistown and Billings.” [Emphasis in original.]

We agree with the reasoning and conclusions of the District Court and find that Billings was beyond the reach of the covenant as drafted. Thus, Tucker cannot now claim that the court’s refusal to enforce the covenant in Yellowstone County somehow deprived him of something he bargained and paid for. We hold that the District Court did not err in refusing to refund any part of the purchase price to Tucker based on the partial invalidity of the non-competition covenant.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, GRAY and McDONOUGH concur.


author: JUSTICE GRAY

text:
    JOHN H. MARTIN AND PEGGY MARTIN, Plaintiffs and Appellants, v. DORN EQUIPMENT COMPANY, INC., and SPERRY-NEW HOLLAND, Defendants and Respondents.
    No. 91-021.
    Submitted on briefs: May 31, 1991.
    Decided Nov. 14, 1991.
    250 Mont. 422.
    821 P.2d 1025.

      J. David Penwell, Bozeman, for plaintiffs and appellants.
    Michael W. Tolstedt, Anderson, Brown, Gerbase, Cebull, Fulton, Harman & Ross, Billings; W. Lee Stokes, Bozeman, for defendants and respondents.
   JUSTICE GRAY

delivered the Opinion of the Court.

John and Peggy Martin appeal from the October 24,1990, order of the Sixth Judicial District Court, Park County, granting the motion of Dorn Equipment Company, Inc., and Sperry-New Holland (collectively, the respondents) for summary judgment. We affirm in part and reverse and remand in part.

The issues raised on appeal are whether the District Court erred in granting summary judgment by:

1. Failing to consider the deposition of Richard Jeppson;

2. Concluding as a matter of law that no breach of the peace occurred during a repossession; and

3. Finding that no material facts exist to support the Martins’ claim that the respondents acted fraudulently regarding an oral agreement to extend or delay payments.

John and Peggy Martin (the Martins) owned a 40-acre ranch north of Livingston, Montana. They operated a custom haying business and raised registered Simmental cattle.

Dorn Equipment Company, Inc. (Dorn), a Montana corporation, sells and repairs new and used agricultural equipment in Bozeman. Sperry-New Holland (Sperry) manufactures agricultural equipment and is a financier for purchasers of Sperry-New Holland equipment from dealers such as Dorn.

The Martins’business relationship with Dorn spanned from 1975 until December of 1986. During this period, the Martins purchased various items of farm equipment and parts for the equipment from Dorn. Dorn also repaired the equipment for the Martins. The Martins financed the equipment through Sperry and its affiliated credit corporations, First Security Bank of Bozeman, and other entities.

Going into the haying season of 1986, the total amount of Martins’ debt to the respondents was as follows:

Creditor Collateral Amount, Due Date Due

Dorn on account $5,009.47 6-6-86

Sperry swather $5,894.96 8-15-86

Sperry baler $3,846.53 9-1-86

Sperry grinder $2,336.66 9-15-86

Sperry bale wagon $4,500.04 10-15-86

The Martins failed to make the required payments as they came due in 1986.

John Martin met with representatives of Dorn and Sperry on October 28,1986, at Dorn’s place of business in Bozeman. The parties discussed the overdue payments and attempted to make arrangements to resolve the situation. The respondents claim that Martin orally agreed to make an immediate $8,000 payment to Sperry and to allow Sperry to inspect and inventory the equipment and that, in return, Dorn and Sperry would combine all of the Martins’ contracts and extend them for two more years. The respondents maintain that November 3, 1986, was the agreed date for meeting to inspect the equipment. However, Peggy Martin stated in her deposition that the respondents agreed at the October 28 meeting to give the Martins time to put their equipment to work and obtain refinancing elsewhere.

On November 1,1986, the Martins left Montana for Idaho in order to resume work on custom farming operations there. The Martins had expanded their custom farming business into Idaho the previous year, and most of their equipment was located in Idaho at that time. On or about November 4,1986, the respondents repossessed the equipment located in Idaho on the basis of the Martins’ failure to make the $8,000 payment or the November 3 meeting. A Notice of Repossession and a Notice of Private Sale were sent to the Martins by certified mail on November 10, 1986, indicating that the Idaho equipment would be sold at private sale on or after fifteen days from November 10.

On November 11, 1986, Jim Drummond (Drummond) of First Security Bank of Bozeman contacted John Dorn of Dorn and informed him that he was going to the Martins’ ranch to repossess equipment that the Martins pledged as collateral on debts owing to the bank. John Dorn sent a driver and pickup truck to accompany Drummond and repossess a Sperry- New Holland Grinder/Mixer.

The gate to the ranch was secured by a chain and padlock. Drummond cut the chain with bolt cutters, and the parties proceeded onto the premises. Richard Jeppson, the Martins’ hired hand, confronted Drummond and inquired into the purpose of the parties’ presence on the Martin ranch. Drummond informed him that they were there to repossess certain equipment.

On November 24, 1986, the day before the fifteen days referred to in the Notice of Sale expired, the Martins filed an Application for Preliminary Injunction and Temporary Restraining Order in the Eighteenth Judicial District, Gallatin County. A Temporary Restraining Order was issued prohibiting the respondents from selling any of the repossessed equipment; a show cause hearing was held on December 17, 1986.

During the show cause hearing, the District Court discovered that the Martins had filed for bankruptcy in the United States Bankruptcy Court for the District of Montana on December 11,1986. The District Court immediately suspended the proceedings until such time as the Bankruptcy Court determined whether it would assume jurisdiction of the case.

On February 8, 1988, the Bankruptcy Court issued an Order of Abstention from Jurisdiction, allowing the Martins to proceed in the civil action pending in Gallatin County. The Martins, however, dismissed the Gallatin County action and filed this action in the Sixth Judicial District Court, Park County. That District Court granted the respondents’ motion for summary judgment, and the Martins appealed.

The Martins contend, for three different reasons, that the District Court erred in granting summary judgment. The first issue is whether the District Court erred in not considering the deposition of Richard Jeppson.

The District Court concluded that because the deposition of Richard Jeppson, the Martins’ hired hand, was taken in the course of the earlier action filed in Gallatin County, the deposition should not be considered as establishing any facts in the case at bar. Based on the record before us, the Jeppson deposition may have been properly before the District Court by virtue of either Rule 32, M.R.Civ.P., or a stipulation of the parties. In any event, it is clear that the court did consider it in part and still concluded that the respondents’ actions did not constitute a breach of the peace. Given our holding below on breach of the peace, no further discussion of this issue is necessary.

The second issue is whether the District Court erred in concluding as a matter of law that no breach of the peace occurred when the respondents repossessed the Martins’ equipment. The parties agree that the Martins were past due on their various accounts. Further, all relevant security agreements gave the respondents the right to forego judicial proceedings and retake possession of the collateral.

The Sperry default provisions gave Sperry the right to lawfully enter the premises to take possession:

“If the Buyer should fail to make a payment by the date herein specified for the payment, TIME BEING OF THE ESSENCE OF THIS AGREEMENT, or otherwise breach this agreement ..., the Seller or the Seller’s assigns may either or both obtain a judgement [sic] for the same or lawfully enter any premises where the goods may be and take possession thereof, ... .”

Section 30-9-503, MCA, supplements these contractual default provisions with the following language:

“Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action ...”

(Emphasis added). Therefore, the respondents could only repossess the Martins’ equipment without resorting to judicial process if they could do so lawfully, without breaching the peace.

Although the District Court did not explicitly state that no genuine issues of material fact existed regarding the repossession, it held as a matter of law that the respondents’ actions were not unlawful and did not constitute a breach of the peace. The District Court noted that the respondents made no threats, used no force or violence, and repossessed the equipment in broad daylight. These facts, however, do not support a legal conclusion that a breach of the peace did not occur.

The question of what constitutes a breach of the peace under the Uniform Commercial Code is a case of first impression in Montana. Section 30-9-503, MCA, does not define breach of the peace. However, to avoid breaching the peace, “[t]he general rule is that the creditor cannot utilize force or threats, cannot enter the debtor’s residence without consent, and cannot seize any property over the debtor’s objections.” J. Sheldon & R. Sable, Repossessions, § 6.3 (1988).

We find Laurel Coal Co. v. Walter E. Heller & Co., Inc. (W.D. Penn. 1982), 539 F.Supp. 1006, persuasive. In Laurel Coal Co., defendant repossessed a bulldozer from plaintiff’s property. Defendant entered onto plaintiff’s property after cutting a chain used to lock a fence which enclosed the property. The court stated that any form of forcible entry constitutes a breach of the peace and, as a result, held that the breaking of a lock securing property constitutes a breach of the peace. Laurel Coal Co., 539 F.Supp. at 1007-1008.

The facts of the instant case clearly indicate that the respondents forcibly entered the Martins’ property. Drummond and the respondents’ representative entered the property without the Martins’ consent after cutting the locked chain on the gate with bolt cutters. This action in itself constitutes a breach of the peace. Self-help repossessions must be conducted in such a manner as to avoid forcible breakings and entries.

The respondents argue that Drummond, a representative of the bank and not a party to this action, cut the chain and that their representative merely drove onto the property through the open gate. We find this argument unpersuasive. Drummond contacted Dorn before traveling to the ranch to repossess the equipment. Dorn, on behalf of itself and Sperry, sent a driver with the bank representatives to repossess certain additional equipment. The members of the group were acting in concert, and the respondents cannot now contend that the bank is solely responsible for the unlawful entry onto the Martins’ ranch.

“This Court has the power to reverse the district court’s grant of summary judgment and order it to enter summary judgment in favor of the other party as a matter of law only when it is clear that all the facts bearing on the issues are before this Court.” Canal Ins. Co. v. Bunday (1991), [249 Mont. 100,] 813 P.2d 974, 979, 48 St.Rep. 597, 600; citing Hereford v. Hereford (1979), 183 Mont. 104, 110, 598 P.2d 600, 603. No genuine issues of material fact exist on the issue of breach of the peace in the instant case. Having concluded that the forcible entry onto the Martins’ ranch to repossess equipment was a breach of the peace, we hold that the District Court erred in concluding that the repossession was lawful and did not constitute a breach of the peace. We reverse the grant of summary judgment in the respondents’ favor and direct the District Court to enter partial summary judgment for the Martins on this issue.

The final issue is whether the District Court erred in finding that no material facts exist to support the Martins’ claim that the respondents acted fraudulently regarding an oral agreement to extend or delay payments. Representatives from Dorn and Sperry met with John Martin on October 28, 1986, regarding the Martins’ past due account. Martin claims that the respondents agreed to extend his time in which to pay before they would repossess his equipment; the respondents contend that Martin had to meet certain conditions prior to an extension, which he failed to meet.

The Martins’ complaint asserts that the respondents acted fraudulently by inducing them to believe that they had reached an agreement extending the time in which the Martins could make their payments. The Martins failed to meet the requirements of Rule 9(b), M.R.Civ.R: “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity ...”

The purpose of summary judgment underlying Rule 56, M.R.Civ.P., is to encourage judicial economy through the prompt elimination of questions not deserving of resolution by trial. Westmont Tractor Co. v. Continental I, Inc. (1986), 224 Mont. 516, 521, 731 P.2d 327, 330. Summary judgment is proper if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. The party moving for summary judgment has the initial burden of proving no genuine issues of material fact exist. Westmont Tractor Co., 224 Mont. at 521, 731 P.2d at 330. Once the moving party meets this burden, the burden shifts to the non-moving party to prove that material issues of fact are in dispute. Westmont Tractor Co., 224 Mont. at 521, 731 P.2d at 330.

The Martins contend they have made out a prima facie case of fraud in their complaint and through deposition testimony of Peggy Martin. The respondents contend that such has not been established. We agree with the respondents. The Martins made reference to fraud in their complaint and in their response to the respondents’ summary judgment motion, but they failed to allege the facts and circumstances constituting the fraud with particularity. Furthermore, Peggy Martin’s deposition was before the court which also made reference to a misrepresentation but failed to state facts in support of all nine fraud elements which the Martins were required to aver and satisfy.

The Martins failed to allege and satisfy the required elements of fraud. Additionally, the Martins failed to raise genuine issues of material fact regarding the elements. Therefore, the District Court did not err in granting summary judgment on this issue.

Affirmed in part, and reversed and remanded in part for further proceedings consistent with this opinion.

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


text:
    MARGARET JOHNSON, Plaintiff and Respondent, v. CAPITAL FORD GARAGE, Defendant and Appellant.
    No. 91-291.
    Submitted on briefs Oct. 17, 1991.
    Decided Nov. 14, 1991.
    250 Mont. 430.
    820 P.2d 1275.

      R.J. “Jim” Sewell, Jr. and Lewis K. Smith, Smith Law Firm, Helena, for defendant and appellant.
    Margaret Johnson, pro se, Helena.
    Marc Racicot, Atty. Gen., Clay R. Smith, Solicitor, Helena, for amicus curiae.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Margaret Johnson sued Capital Ford in the Small Claims Division of the Lewis and Clark County Justice Court. Johnson prevailed, and Capital Ford appealed to the First Judicial District Court in Lewis and Clark County. The District Court reviewed the taped record from the Small Claims Division and affirmed. Capital Ford then moved for reconsideration and raised certain constitutional issues. The District Court denied Capital Ford’s motion for reconsideration. Capital Ford appeals. We affirm.

The issues are:

1. Does the statutory prohibition against de novo appeals from the decisions of small claims courts violate Capital Ford’s right to due process?

2. Did the District Court violate Capital Ford’s right to due process by limiting its review to the record from the Small Claims Division?

3. Did the District Court err in finding sufficient evidence in the record to support the judgment of the Small Claims Division?

In July or August 1988, Johnson left her car with Capital Ford for repairs. She did not pick it up until January 30, 1989. At that time, she found grease on the passenger seat, grease in the trunk, dents in the hood and trunk lid, and a broken rear tail light. These damages were not present when she delivered the car to Capital Ford in 1988.

A series of frustrating discussions with Capital Ford followed. At one point, a Capital Ford mechanic admitted in the presence of both Johnson and shop manager Dirk Fredrickson that Capital Ford’s employees had removed the old engine and left it in the trunk while they waited for delivery of a new engine. However, Fredrickson was unsympathetic and refused to remedy the damage or pay for repairs. Fredrickson’s supervisors supported this decision.

On January 29, 1991, Johnson filed a complaint in the Small Claims Division of the Lewis and Clark County Justice Court. She claimed $2500 in damages. Judge Jewell heard the case on February 25, 1991. Johnson testified on her own behalf and presented testimony from other witnesses, as well as several exhibits. John Elliott appeared on behalf of Capital Ford. On February 28, 1991, Judge Jewell entered Findings of Fact, Conclusions of Law, and a Memorandum in which he found for Johnson and awarded her $2500 in damages, plus costs.

Capital Ford obtained counsel and appealed to District Court. The court limited its review to the record from the Small Claims Division, and on April 11,1991, it issued an order affirming the decision of the Small Claims Division.

On April 22, 1991, Capital Ford moved for reconsideration. It argued that the evidence was insufficient to support Judge Jewell’s findings, that Johnson had not proved Capital Ford damaged her car, that Judge Jewell had admitted exhibits without the proper foundation, and that the District Court’s refusal to entertain a de novo appeal violated Capital Ford’s right to due process. Capital Ford briefed these issues. Johnson, who appeared pro se, did not. The District Court held a hearing on May 17, 1991, and denied Capital Ford’s motion on May 28, 1991.

Capital Ford then appealed to this Court. It is still represented by counsel. Johnson is still pro se, and has briefed the fact issues. We ordered the Attorney General’s Office to brief the constitutional issues on her behalf.

I

Does the statutory prohibition against de novo appeals from the decisions of small claims courts violate Capital Ford’s right to due process?

Capital Ford argues that the statutory procedure governing appeals from small claims courts violates the state and federal due process guarantees. Section 25-35-803, MCA, provides:

“(1) If either party is dissatisfied with the judgment of the small claims court, he may appeal to the district court of the county where the judgment was rendered. An appeal shall be commenced by giving written notice to the small claims court and serving a copy of the notice of appeal on the adverse party within 10 days after entry of judgment.
“(2) There may not be a trial de novo in the district court. The appeal shall be limited to questions of law.” [Emphasis added.]

Attorneys may not appear in small claims court, unless all parties are represented. Section 25-35-505(2), MCA. Capital Ford asserts that this statutory scheme unconstitutionally deprives it of the assistance of counsel at all levels of the fact-finding process.

Capital Ford cites North Central Services, Inc., v. Hafdahl, 1981), 191 Mont. 440, 625 P.2d 56, in support of this position. In Hafdahl, the appellant challenged § 25-35-403(2), MCA(1979) (repealed 1981), a statute that was virtually identical to present § 25-35-803(2),MCA. We said:

“The Montana Constitution is silent on right to counsel in civil cases, but nearly all courts have held that such right is implicit in due process guarantees. For example see Prudential Ins. Co. v. Small Claims Court (1946), 76 Cal.App.2d 379, 173 P.2d 38; Foster v. Walus (1959), 81 Idaho 452, 347 P.2d 120. We hold that in Montana the right to counsel is implicit within constitutional guarantees of due process, and the right to counsel must exist at some stage of the proceeding.” [Emphasis added.]

Hafdahl, 625 P.2d at 58.

We concluded that the statutory prohibition against de novo appeals was:

“[U]nconstitutional because it effectively denies counsel at all levels of factual determination. The right to counsel can be denied in the small claims procedure, as long as the right is protected on appeal.” [Emphasis added.]

Hafdahl, 625 P.2d at 58. Capital Ford asserts that Hafdahl required the legislature to provide for de novo appeals. Apparently Capital Ford believes any statutory solution other than de novo appeal is unconstitutional for the reasons we enumerated in Hafdahl. We disagree.

The 1981 legislature responded to Hafdahl with Senate Bill 485. The recitals preceding the bill, as enacted, make it clear that the legislature was attempting to remedy the problems we enumerated in Hafdahl. See 1981 Mont. Laws 586. Senate Bill 485 repealed all of the then-existing small claims statutes. Section 29, 1981 Mont. Laws 586. However, the legislature re-enacted some of the repealed statutes as part of a new statutory scheme.

Significantly, the legislature chose not to provide for de novo appeal. See § 21(2), 1981 Mont. Laws ch. 586 (now codified as § 25-35-803(2), MCA). Instead, it afforded defendants in small claims court an opportunity to remove their cases to justice’s court and provided that failure to do so operates as a waiver of the rights to counsel and trial by jury. Section 18(2), 1981 Mont. Laws ch. 586 (now codified as § 25-35-605(3), MCA). We have not previously had occasion to consider the constitutionality of this revised statutory scheme.

Under the new procedure, the small claims plaintiff must notify the defendant of the possibility of procedural waiver of the rights to counsel and trial by jury. See § 7, 1981 Mont. Laws ch. 586 (now codified as § 25-35-602, MCA). Pursuant to this notification requirement, the complaint in the instant case contained the following language:

“You are hereby further notified that, within 10 days of service upon you of this complaint and order, you may remove this action from small claims court to Justice’s Court, and that your failure to remove shall constitute a waiver of your right to trial by jury and to representation by counsel.”

This warning appears on the front of the complaint in the same typeface as the rest of the document. Capital Ford does not argue that this warning was visually inadequate so we do not reach that issue. However, we believe a warning of such importance should be conspicuous and we suggest to the state’s small claims courts that in the future they print the warning in bold type.

Capital Ford does not deny receiving this warning; it argues instead that its representatives could not evaluate the significance of the waiver without the assistance of counsel. We are not persuaded. The complaint very clearly warned the defendant that it would waive its right to counsel and jury trial by failing to remove. The assistance of counsel is, therefore, not essential to a voluntary and knowing waiver of these rights in a civil case. Furthermore, the statute did not prevent Capital Ford from consulting with an attorney immediately following its receipt of the complaint. The statute merely prohibited the in-court appearance of an attorney on Capital Ford’s behalf.

The new small claims procedure complies with Hafdahl because it does not absolutely prohibit counsel at all stages in the litigation. Instead, it places the responsibility for preservation of that right on the defendant who must choose between the peace of mind that comes from representation by counsel and the quick, affordable justice available in small claims court. Capital Ford made the decision to take its chances in small claims court and now it must abide by the result. We hold that the revised statutory scheme does not violate Capital Ford’s right to due process.

II

Did the District Court violate Capital Ford’s right to due process by limiting its review to the record from the Small Claims Division?

Capital Ford argues that the District Court violated its due process rights by refusing to allow Capital Ford’s attorney to do more than file a notice of appeal. Specifically, Capital Ford complains that “[f]rom that point on, the Court reviewed the record and affirmed the judgment.” Apparently this is little more than a restatement of Capital Ford’s de novo appeal argument. For the reasons articulated in Part I of this opinion, we hold that in the context of the new statutory scheme it is no longer unconstitutional to prohibit de novo appeals.

Ill

Did the District Court err in finding sufficient evidence in the record to support the judgment of the Small Claims Division?

Capital Ford argues that the record contains insufficient evidence to support the judgment in Johnson’s favor. However, a close reading of Capital Ford’s brief reveals that Capital Ford is actually arguing that Judge Jewell admitted exhibits without requiring Johnson to establish the proper evidentiary foundation. Specifically, Capital F ord challenges the admissibility of repair estimates Johnson obtained two years after she retrieved her car from Capital Ford. We find no merit in this argument.

In enacting the statutes governing small claims procedure, the legislature sought to provide for the informal disposition of claims. Section 25-35-501, MCA, provides:

“It is the purpose of this chapter to provide a speedy remedy for small claims and to promote a forum in which such claims may be heard and disposed of without the necessity of a formal trial.” Capital Ford’s insistence on strict compliance with technical rióles of evidence is contradictory to the legislature’s expressed intention to provide a forum for the informal resolution of small claims.

Furthermore, § 25-35-702, MCA, provides:

“The plaintiff and the defendant may offer evidence in their behalf by witnesses appearing at such hearing in the same manner as in other cases arising in justice’s court or by written evidence, and the judge may direct the production of evidence as he considers appropriate. The small claims court has the subpoena power granted to justices’ courts in all civil cases.” [Emphasis added.]

We believe the emphasized language grants the small claims judge broad discretion in controlling the admissibility of testimony and exhibits.

The taped record in the instant case shows that Capital Ford did not stand helplessly by while Johnson put her evidence in front of the small claims judge. Although Mr. Elliott did not object to Johnson’s references to the repair estimates during her testimony, he did voice specific concerns about the reliability of that evidence before Judge Jewell appended it to the record. Johnson then replied that she had not obtained estimates earlier because she believed Capital Ford would ultimately accept responsibility for the damage.

The small claims judge and the District Court took Mr. Elliott’s concerns into account in assessing the weight of this evidence rather than its admissibility. The smaller of the two repair estimates for body work alone exceeded Johnson’s recovery by almost a hundred dollars. We hold that the record contains sufficient evidence to support the judgment against Capital Ford.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HUNT, McDONOUGH, and WEBER concur.