author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KENNETH LEROY WHITLOW, Defendant and Appellant.
    No. 94-270.
    Submitted on Briefs April 24, 1997.
    Rehearing Denied December 30, 1997.
    Decided November 25, 1997.
    54 St.Rep. 1227. 949 P.2d 239.
    285 Mont. 430.

      For Appellant: William F. Hooks, Appellate Defender Office, Helena.
    For Respondent: Joseph P. Mazurek, Attorney General, Micheal S. Wellenstein, Assistant Attorney General, Helena; George H. Com, Ravalli County Attorney, Hamilton.
   JUSTICE NELSON

delivered the Opinion of the Court.

Kenneth Leroy Whitlow (Whitlow) appeals a jury verdict in the District Court for the Twenty-First Judicial District, Ravalli County, finding him guilty of aggravated kidnaping and sexual intercourse without consent involving a six-year-old girl. We affirm.

We address the following issues on appeal:

1. Whether the District Court abused its discretion in admitting other crimes evidence.

2. Whether the District Court abused its discretion in refusing to strike Dr. Baxter’s opinion testimony regarding the victim’s credibility.

3. Whether the District Court abused its discretion in refusing to allow Whitlow to admit the entire pretrial interview of Dr. Starr.

4. Whether the prosecutor’s comments during closing argument constituted prosecutorial misconduct.

5. Whether the District Court abused its discretion in denying Whitlow’s motion for a new trial.

Factual and Procedural Background

On July 8,1993, Whitlow brought a six-year-old girl (A.J.) into the emergency room of the Marcus Daly Memorial Hospital in Hamilton. He claimed that he had been fishing at Skalkaho Creek when A.J. approached him and told him that she had been raped and that she needed a doctor. At the hospital, Whitlow informed the attending physician that he had a prior record of sexual assault and that he was afraid that he would be blamed for hurting A.J.

A.J. told the doctor that she rode her bicycle to the Pinesdale store to buy some candy and that while she was on her way home, someone picked her up, put her in their car, drove her into the woods and penetrated her vagina with their finger. She originally described her assailant as a younger woman with brown hair, green eyes and red fingernails, who wore long pants and sandals, and who drove a dark blue car and smoked cigarettes. A.J. claimed that she was able to run away from her assailant and that she then came upon Whitlow who brought her to the hospital. A medical examination revealed recent injury and trauma to A. J.’s vaginal area.

The county sheriff and a detective jointly interviewed A.J. at the hospital. She told them that her abductor had been a woman and that the man she found fishing in the woods brought her to the hospital. After the sheriff repeatedly stated that women did not usually commit such crimes, A.J. began referring to her assailant as a man. A.J. continued to claim in her interviews with law enforcement officers that two separate people were involved, the person who assaulted her and the fisherman. A. J.’s mother later testified that the day after the assault, A.J. had admitted to her that Whitlow was her assailant. However, it was not until several months after Whitlow had been charged with the crime that A.J. divulged this information to law enforcement officers. A.J. testified at trial that Whitlow had a knife and that he had threatened to kill her.

On the day of the assault, Whitlow was taken to the sheriff’s office for questioning and subsequently arrested. As Whitlow was being booked into the Ravalli County jail, the jailer noticed traces of blood on his hands. The jailer took scrapings from underneath Whitlow’s fingernails and swabbed his fingers. The fingernail scrapings and blood taken from the middle finger of Whitlow’s right hand were examined by means of DNAtesting and determined to have DNAfrom both Whitlow and A. J.

A. J.’s clothing was also tested. A red nylon fiber, consistent with the upholstery found in Whitlow’s car, was located on the inside of A. J.’s underwear. Ahair found woven into the fabric of the underwear was consistent with hair taken from Whitlow’s arm.

On August 18, 1993, the State charged Whitlow by Information with the offenses of aggravated kidnaping, in violation of § 45-5-303, MCA, and sexual intercourse without consent, in violation of § 45-5-503, MCA. Prior to trial, the State notified Whitlow of its intent to introduce evidence of other crimes. The other crimes the State intended to introduce included Whitlow’s 1985 convictions in Alaska for sexually assaulting his daughter and for tampering with a witness and the uncharged sexual fondling of his stepdaughter which occurred from 1991 through mid-1993. Over objection by the defense, the District Court permitted the State to introduce evidence of the 1985 conviction for sexual assault.

Whitlow was convicted by a jury on both counts. He was sentenced to 40 years for the crime of sexual intercourse without consent, 10 years for the crime of aggravated kidnaping, and 10 years for the use of a weapon during the crimes. The District Court, finding Whitlow to be a persistent felony offender, enhanced the aggravated kidnaping sentence by 60 years. The court designated Whitlow a dangerous offender for purposes of parole eligibility.

Whitlow moved for a new trial on the grounds that prosecutorial misconduct and newly discovered evidence concerning the State’s expert witness warranted a new trial. The District Court denied the motion and Whitlow appealed.

Issue 1.

Whether the District Court abused its discretion in admitting other crimes evidence.

Over Whitlow’s objection, the District Court permitted the State to introduce evidence at trial of Whitlow’s 1985 conviction in Alaska for sexually assaulting his daughter. To that end, the State introduced a certified copy of the 1985 judgment. In addition, the Alaska prosecutor testified concerning the underlying acts giving rise to the charge against Whitlow and Whitlow’s subsequent conviction. Whitlow contends that it was error for the court to allow the introduction of this evidence as the State failed to satisfy both substantive and procedural requirements for the admission of other crimes evidence.

A district court has broad discretion to determine whether evidence is relevant and admissible. State v. Anderson (1996), 275 Mont. 344, 347, 912 P.2d 801, 803 (citing State v. Pace (1995), 272 Mont. 464, 467, 901 P.2d 557, 559; State v. Keys (1993), 258 Mont. 311, 315, 852 P.2d 621, 623). Absent a showing of an abuse of that discretion, a district court’s determination will not be overturned. Anderson, 912 P.2d at 803.

In State v. Matt (1991), 249 Mont. 136, 814 P.2d 52, we modified the four requirements for introducing evidence of other crimes, wrongs or acts that we had previously set forth in State v. Just (1979), 184 Mont. 262, 602 P.2d 957. Following the dictates of Rules 403 and 404(b), M.R.Evid., we established the following criteria:

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

Matt, 814 P.2d at 56. These criteria have come to be known as the Modified Just Rule.

Under the first prong of this rule, the other crime does not have to be identical to the charged conduct, only sufficiently similar. State v. Weldy (1995), 273 Mont. 68, 74, 902 P.2d 1, 5 (citing State v. Tecca (1986), 220 Mont. 168, 172, 714 P.2d 136, 138). The Alaska indictment charged Whitlow with touching his daughter’s genitals and breasts and with attempting to engage in penetration. The current charges are similar in that they include touching and penetration of A J.’s genitals. We hold that Whitlow’s prior sexual abuse of his daughter is sufficiently similar in nature to the sexual acts committed against A.J. to satisfy the first prong of the Modified Just Rule.

As to the second prong, Whitlow contends that his 1985 conviction for sexually assaulting his daughter is too remote in time from the currently charged offense thus necessitating exclusion of the other crime evidence. However, we have previously stated that remoteness of the prior crime affects its credibility, not its admissibility. State v. Ramstead (1990), 243 Mont. 162, 167, 793 P.2d 802, 805 (citing State v. Eiler (1988), 234 Mont. 38, 49, 762 P.2d 210, 217; State v. Doll (1985), 214 Mont. 390, 396, 692 P.2d 473, 476).

Whitlow was incarcerated from 1985 through 1989 and was not discharged from parole until September 1990. In finding that the prior sexual assault was not too remote in time, the District Court relied on the fact that Whitlow did not have an opportunity to reoffend during the five-year period he was incarcerated or on parole. A lack of opportunity makes the time between the prior act and the charged offense less significant. State v. Brooks (1993), 260 Mont. 79, 83, 857 P.2d 734, 736-37. Therefore, we hold that the prior crime involving Whitlow’s daughter was not too remote in time and thus satisfies the second prong of the Modified Just Rule.

The third prong of the rule deals with the purposes for which the evidence is offered. Whitlow contends that the State failed to show how the prior act furthered any of the purposes it offered as justification for admitting the other crimes evidence.

The State originally intended to offer into evidence the witness tampering charge and the uncharged fondling of Whitlow’s stepdaughter as well as the 1985 conviction for assaulting his daughter. Thus, the written notices provided by the State included purposes specific to each of these offenses. The 1985 conviction for sexual assault was the only prior act evidence admitted at trial. In its notices, the State asserted that this conviction was admissible to show intent, identity and absence of mistake or accident. These are permissible purposes under the rule. Matt, 814 P.2d at 56.

Evidence of the prior sexual assault was admissible to prove that Whitlow was not the good Samaritan he claimed he was and that his intent was to assault A. J. and to cover up his actions. In addition, the other crime evidence was admissible to prove the absence of mistake or accident in that it was not mere happenstance that Whitlow was in the area when A. J. was assaulted. Finally, the other crime evidence was admissible to prove Whitlow’s identity as the individual who assaulted A. J. Therefore, we hold that the prior crime involving Whitlow’s daughter was admissible for the purposes of showing intent, identity, and absence of mistake or accident, thus satisfying the third prong of the Modified Just Rule.

The final prong of the rule requires that the other crimes evidence be excluded if the probative value of the evidence is substantially outweighed by unfair prejudice to the defendant. We have previously stated that it is inevitable that the introduction of evidence of a prior crime will have some prejudicial effect on a defendant. Brooks, 857 P.2d at 737 (citing Eiler, 762 P.2d at 218). However, when the prior crime meets the first three elements of the Modified Just Rule, those elements combine to give it great probative weight. Brooks, 857 P.2d at 737. In the instant case, since the evidence of other crimes has met the first three elements of the rule, the cumulative effect is that the probative value of the evidence outweighs any prejudice to Whitlow.

Furthermore, when Whitlow took AU. to the hospital, he freely admitted to the hospital staff that he had committed a prior sexual assault. Whitlow’s statements to the hospital staff were admissible at trial under Rule 801(d)(2)(A), M.R.Evid., and he raised no objection to their introduction. Additionally, Whitlow’s claim of unfair prejudice is unpersuasive as Whitlow used his prior conviction to bolster his defense claiming that, because of his prior conviction for sexual assault, it would not make sense for him to take A.J. to the hospital if he had been the one that assaulted her. See State v. Medina (1990), 245 Mont. 25, 31-32, 798 P.2d 1032, 1036. Therefore, we hold that the probative value of the other crimes evidence was not substantially outweighed by any prejudicial effect, thus satisfying the fourth prong of the Modified Just Rule.

In addition to identifying the four substantive requirements for introducing evidence of other crimes, Just established certain procedural protections that were later clarified in Matt. Whitlow contends that the State violated the first of these protections which provides:

Evidence of other crimes, wrongs or acts may not be received unless there has been written notice to the defendant that such evidence is to be introduced. The notice to the defendant shall specify the evidence of other crimes, wrongs or acts to be admitted, and the specific Rule 404(b) purpose or purposes for which it is to be admitted.

Matt, 814 P.2d at 56. Whitlow argues that the State failed to specify in its other crimes notice the purposes for which the other crimes evidence would be offered as required by State v. Croteau (1991), 248 Mont. 403, 812 P.2d 1251. Whitlow contends that the State used an impermissible “shotgun” approach in listing these purposes.

While it does appear that nearly all of the purposes for admitting other crimes evidence under Rule 404(b), M.R.Evid., are stated in the State’s “Notice of Intent to Introduce Evidence of Other Crimes, Wrongs or Acts” and its “Amended Just Notice and Response Brief in Support of Just Notice,” the notices did sufficiently apprise the defendant as to why the evidence was admissible under the purposes stated. Moreover, while Croteau does stand for the proposition that the shotgun approach is impermissible, we held in State v. Steffes (1994), 269 Mont. 214, 226, 887 P.2d 1196, 1203-04, that it is not impermissible to state more than one applicable purpose for the admission of other crimes evidence.

In Croteau, the notice that this Court labeled as an impermissible “shotgun” approach was merely a recitation of the purposes listed in Rule 404(b). The notice stated that the evidence was being offered “for the purpose of showing defendant’s opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident in committing the offenses charged.” Croteau, 812 P.2d at 1254-55.

In the case before us, the State did far more than simply recite the purposes listed in Rule 404(b). In its written notices, the State explained how the facts surrounding the other crimes and the facts surrounding the current charges related to each specific purpose. For example, the State’s original notice stated in part:

In regards to the Defendant’s conviction for sexual abuse of a minor, the State asserts that this act is admissible under the theory that it tends to establish identity. Since the Defendant has advanced both a general denial and an alibi defense, this evidence tends to identify the Defendant as the person who committed the crime charged, since he has previously had such contacts with a minor.

Similarly, the State’s amended notice stated that

the Just material tends to establish that the Defendant has a predilection for young girls and, hence, establishes motive. It also bears on his intent, which it tends to show is to engage in sexual conduct with minor girls.

This is not at all similar to the “shotgun” approach that we held impermissible in Croteau. Therefore, we conclude that the State did satisfy both the substantive and procedural requirements for the admission of the other crimes evidence as set forth in the Modified Just Rule.

Accordingly, we hold that the District Court did not abuse its discretion when it admitted evidence of Whitlow’s other crimes.

Issue 2.

Whether the District Court abused its discretion in refusing to strike Dr. Baxter’s opinion testimony regarding the victim’s credibility.

The State retained Dr. Sarah Baxter, a clinical psychologist, to conduct diagnostic evaluations of A. J. Dr. Baxter met with A. J. eight times over a five-month period for a total of ten hours. At trial, Dr. Baxter testified regarding A. J.’s changing her story from that of being assaulted by a woman to that of being assaulted by Whitlow. Dr. Baxter explained that child victims of trauma tend to misperceive important aspects of the traumatic event. She concluded that A.J. was a victim of trauma and that, in her opinion, A.J. did have a misperception. Dr. Baxter attributed A.J.’s different stories to her increasing feeling of safety as she gradually realized that the threats made by her assailant would not be carried out. Dr. Baxter testified that, in her opinion, A. J. was very credible.

Whitlow argues that the District Court should have stricken Dr. Baxter’s opinion testimony regarding A.J.’s credibility. Whitlow contends that there was no foundation for this testimony because Dr. Baxter’s conclusions were reached prior to the time A. J. changed her story. Whitlow also claims that Dr. Baxter failed to follow the standard practice for experts in the field and that her testimony should have been stricken on that basis as well. The State contends that Whitlow failed to timely object to Dr. Baxter’s testimony, thus he has waived appellate review of this issue.

In order to properly preserve an issue for appeal, a defendant must make a timely objection or motion to strike. State v. Stuit (1994), 268 Mont. 176, 182, 885 P.2d 1290, 1294 (citing Kizer v. Semitool, Inc. (1991), 251 Mont. 199, 207, 824 P.2d 229, 234). For an objection to be timely, it must be made as soon as the grounds for the objection become apparent. Stuit, 885 P.2d at 1294. Dr. Baxter testified during the State’s case-in-chief regarding A.J.’s credibility, however, Whitlow did not object until his cross examination of Dr. Baxter during the State’s rebuttal.

Here, the timing of Whitlow’s objection worked to his disadvantage since the jury was allowed to hear and, for some time prior to the objection, consider the disputed testimony. Accordingly, to the extent Whitlow suffered prejudice because of the timing of his objection he, himself, was responsible for that prejudice. More importantly, albeit that it was untimely, Whitlow did preserve his claim of error at trial so as to permit the trial judge to either sustain the objection during cross-examination or to strike the testimony and admonish the jury not to consider it. Accordingly, while Whitlow’s objection was not timely since it was not made as soon as the grounds for the objection became apparent, because this claim of error was preserved in the District Court and is not being raised for the first time on appeal, we choose to address the merits of this issue.

The fact that Dr. Baxter did not meet with A.J. after A.J. changed her story does not mean that Dr. Baxter’s opinion lacked adequate foundation. At the most, it goes to the weight of the testimony and Whitlow did argue to the jury that it should give less weight to Dr. Baxter’s opinion that A. J. was credible since Dr. Baxter did not meet with A.J. after A. J. changed her story. Furthermore, Dr. Baxter’s opinion concerned A.J.’s overall credibility, not whether the final change in her story was truthful.

In State v. Scheffelman (1991), 250 Mont. 334, 820 P.2d 1293, we set forth three factors to determine whether an expert may testify to the credibility of a child sexual abuse victim after the child’s credibility has been attacked. These factors are: (1) the expert must have extensive first-hand experience with sexually abused and non-sexually abused children; (2) the expert must have a thorough and up-to-date knowledge of the professional literature on child sexual abuse; and (3) the expert must have objectivity and neutrality about individual cases as required of other experts. Scheffelman, 820 P.2d at 1298. At trial, Whitlow conceded that Dr. Baxter met the first two requirements oí Scheffelman. As to the third requirement, Dr. Baxter testified that her role was to conduct a lengthy evaluation of A. J. and that, in itself, requires objectivity and neutrality as there is no attempt made to interact with the child. Whitlow argued, on the other hand, that Dr. Baxter was A.J.’s therapist and as such she was not objective and neutral. However, contrary to Whitlow’s contentions, Scheffelman did not hold that a therapist lacks objectivity or neutrality. We hold that the foundational requirements of Scheffelman were met in this case.

Whitlow, relying on State v. Henderson (1994), 265 Mont. 454, 877 P.2d 1013, claims that Dr. Baxter failed to follow the standard practices of experts in the field by forming her opinion as to A.J.’s credibility based on limited statements from A. J. On the contrary, Dr. Baxter did follow standard practice by reviewing as much information as possible and by meeting with A.J. on several occasions. She met with A. J. eight times over a five-month period. During the first meeting, Dr. Baxter conducted an extensive clinical interview. She also reviewed the sheriff’s taped interviews of A.J., the Pinesdale Police Chief’s notes from his interviews with A. J., the hospital reports and the investigatory material regarding the crime.

Accordingly, we hold that the District Court did not abuse its discretion in refusing to strike Dr. Baxter’s opinion testimony regarding A. J.’s credibility.

Issue 3.

Whether the District Court abused its discretion in refusing to allow Whitlow to admit the entire pretrial interview of Dr. Starr.

Dr. Judith Starr, an expert called by the defense, testified that there were problems with the interview process and that those problems may have led to false accusations against Whitlow. The prosecutor had previously conducted an interview of Dr. Starr which, when transcribed, was 125 pages long. During cross examination, the State asked Dr. Starr about certain statements she had made in that interview. Whitlow asked the court to require that the entire transcript be given to the jury because the State was taking Dr. Starr’s statements out of context. The court denied Whitlow’s request and refused to require admission of the entire transcript.

Whitlow contends that the District Court should have granted counsel’s request pursuant to Rule 106, M.R.Evid., which provides:

Remainder of or related acts, writings, or statements.
(a) When part of an act, declaration, conversation, writing or recorded statement or series thereof is introduced by a party:
(1) an adverse party may require the introduction at that time of any other part of such item or series thereof which ought in fairness to be considered at that time; or
(2) an adverse party may inquire into or introduce any other part of such item of evidence or series thereof.
(b) This rule does not limit the right of any party to cross-examine or further develop as part of the case matters covered by this rule.

In denying Whitlow’s request to require that the full transcript of the interview be given to the jury, the District Court stated that Whitlow could bring other relevant portions of the interview to the jury’s attention. On re-direct, however, Whitlow did not introduce any other portions of the interview.

Whitlow incorrectly claims that he had the right under Rule 106 to introduce the entire 125-page interview. The doctrine of completeness permits examination of the balance or portions of the same document, correspondence, or conversation only where such portions on balance are relevant and throw light upon the parts already admitted or bear on the same subject. State v. Campbell (1978), 178 Mont. 15, 19, 582 P.2d 783, 785 (citations omitted).

“Rule 106 does not mandate the inclusion of related evidence. The rationale behind the inclusion of supplementary evidence is that it is allowed if it is needed to make the primary evidence understandable.” Cline v. Durden (1990), 246 Mont. 154, 162, 803 P.2d 1077, 1082 (citing State v. Sheriff (1980), 190 Mont. 131, 619 P.2d 181). Here, Whitlow never showed which specific portions of the interview were relevant or how they might throw light upon those portions already introduced by the State.

Accordingly, we hold that the District Court did not abuse its discretion in refusing to allow Whitlow to admit the entire pretrial interview of Dr. Starr.

Issue 4.

Whether the prosecutor’s comments during closing argument constituted prosecutorial misconduct.

Dr. Starr testified that Dr. Ralph Underwager was a leading authority in the field of false accusations and that she relied on his expertise in forming her opinion. In cross examination, the prosecutor questioned Dr. Starr regarding an article in a Dutch journal that professed that Dr. Underwager supported pedophilia. When the State attempted to introduce the article, defense counsel objected and the court denied the State’s request. In closing arguments, the State, in its rebuttal, referred to defense counsel’s objection to introducing the article:

I also want to go back, as far as blaming the prosecutor, and how we took Dr. Starr’s — or Doctor Underwager’s comments out of context. Recall who it was that wanted to put the entire document with the whole interview of him into evidence — and remember who protested and kept that from coming before you — just so you could see the entire article.

Trial Transcript at 1468.

Whitlow contends that by this statement, the prosecutor engaged in misconduct which denied Whitlow a fair trial. He asserts that the prosecutor insinuated that Whitlow was keeping vital information from the jury. The State asserts that these comments were in direct response to Whitlow’s claim in his closing argument that the prosecutor had taken Dr. Underwager’s views out of context and had thereby misled the jury.

To rise to the level of prosecutorial misconduct, the conduct in question must be found to be improper or objectionable. See State v. Johnson (1988), 233 Mont. 473, 476-77, 760 P.2d 760, 762. We do not find that to be the case here. Whitlow’s own closing argument opened the door for the prosecutor’s comments.

Furthermore, to be considered reversible error, the alleged prosecutorial misconduct must constitute a denial of a defendant’s substantial rights. State v. Arlington (1994), 265 Mont. 127, 150, 875 P.2d 307, 321 (citing State v. Nichols (1987), 225 Mont. 438, 448, 734 P.2d 170, 176). In the instant case, in view of the overwhelming evidence against Whitlow, the prosecutor’s comments were not so egregious as to deprive Whitlow of his right to a fair trial and due process.

Accordingly, we hold that the prosecutor’s comments during closing argument did not constitute prosecutorial misconduct and Whit-low was not deprived of his right to a fair trial and due process.

Issue 5.

Whether the District Court abused its discretion in denying Whitlow’s motion for a new trial.

A decision to grant or deny a motion for a new trial, including a motion based on newly discovered evidence, lies within the sound discretion of the district court and we will not disturb that decision unless an abuse of discretion is shown. State v. Fina (1995), 273 Mont. 171, 175, 902 P.2d 30, 33 (citing Matter of J.R.T. (1993), 258 Mont. 520, 522, 853 P.2d 710, 711).

Whitlow moved for a new trial on three grounds: (1) newly discovered evidence; (2) failure of the State to produce evidence favorable to the defense; and (3) prosecutorial misconduct. First, Whitlow argued that Dr. Baxter was A.J.’s therapist and as such she could not testify as to A.J.’s credibility. Whitlow claimed that evidence of Dr. Baxter’s status as A. J.’s therapist was not discovered until after trial. Second, Whitlow contended that the prosecutor’s withholding of this evidence regarding Dr. Baxter’s status was a violation of the State’s duty under Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, to produce evidence favorable to the accused. Third, Whitlow argued prosecutorial misconduct in that false testimony regarding the prior act was introduced at trial.

The District Court denied the motion concluding that Whitlow failed to satisfy the six-part standard for granting a new trial based on newly discovered evidence as set forth in State v. Greeno (1959), 135 Mont. 580, 342 P.2d 1052. Additionally, the court determined that even if Dr. Baxter’s role was that of both evaluator and therapist, her testimony would nonetheless be admissible under State v. Scheffelman (1991), 250 Mont. 334, 820 P.2d 1293.

As noted by the District Court, this Court has consistently applied the following criteria in addressing motions for a new trial based on newly discovered evidence:

(1) That the evidence must have come to the knowledge of the applicant since the trial; (2) that it was not through want of diligence that it was not discovered earlier; (3) that it is so material that it would probably produce a different result upon another trial; (4) that it is not cumulative merely — that is, does not speak as to facts in relation to which there was evidence at the trial; (5) that the application must be supported by the affidavit of the witness whose evidence is alleged to have been newly discovered, or its absence accounted for; and (6) that the evidence must not be such as will only tend to impeach the character or credit of a witness.

Greeno, 342 P.2d at 1055. Since the Greeno criteria are stated in the conjunctive, each one must be established before a defendant is entitled to anew trial on the basis of newly discovered evidence. Fina, 902 P.2d at 34.

Whitlow contends that after trial, he learned that Dr. Baxter received $153.68 from the Crime Victim’s Unit for A.J.’s treatment. He argues that a psychologist who performs as a therapist treating a victim may receive payment from the Crime Victim’s Unit, but a psychologist who performs as an evaluator is not entitled to be paid. He maintains that the payment to Dr. Baxter proves that she was A.J.’s therapist and as such was not entitled to testify regarding A.J.’s credibility.

Whitlow has failed to satisfy three of the six criteria established in Greeno for granting a new trial based on newly discovered evidence. First, evidence of possible payment to Dr. Baxter by the Crime Victim’s Unit came to Whitlow during the trial. Dr. Baxter stated in cross examination that she had billed the Crime Victim’s Unit.

Second, Whitlow failed to pursue this line of questioning. It was through want of diligence on Whitlow’s part that the actual payment to Dr. Baxter by the Crime Victim’s Unit was not discovered earlier.

Third, the fact that Dr. Baxter received compensation from the Crime Victim’s Unit was not so material that it would have produced a different result at trial. We have stated elsewhere in this opinion that whether Dr. Baxter was referred to as an evaluator or a therapist made no difference in this case.

Whitlow also based his motion for a new trial on the contention that evidence of the payment to Dr. Baxter by the Crime Victim’s Unit should have been produced prior to trial and that failure to do so was a Brady violation. However, even assuming this information fell within the parameters of Brady (a question we do not decide), there is no indication that the State was aware prior to trial that Dr. Baxter had submitted a claim to the Crime Victim’s Unit. “[T]he government’s obligation to disclose exculpatory or impeachment information under Brady is limited to that information which is then known to the government.” United States v. Morris (7th Cir. 1996), 80 F.3d 1151, 1169. “Brady requires the prosecution to disclose to the defendant only evidence in the prosecution’s possession.” United States v. Jones (8th Cir. 1994), 34 F.3d 596, 599.

Finally, Whitlow contends that the Alaska prosecutor’s testimony concerning Whitlow’s prior act was false and that the State’s failure to correct the false testimony constituted prosecutorial misconduct. The Alaska prosecutor testified at trial that the underlying facts that gave rise to the Alaska sexual assault charge “involved genital fondling, penetration and breasts as well.” Whitlow objected to her statement and moved to strike claiming that the testimony was false as he had not been convicted of penetration. The District Court overruled the objection.

The State did not elicit inaccurate information regarding the prior crimes evidence. The Alaska prosecutor was testifying to the facts underlying Whitlow’s 1985 conviction for sexually assaulting his daughter, not the actual charges in the indictment. Whitlow failed to explain how this testimony was false or how it may have affected the outcome of the trial. Moreover, Whitlow could have corrected the misperception on cross examination but made no attempt to do so. As we stated elsewhere in this opinion, to rise to the level of prosecutorial misconduct, the conduct in question must be found to be improper or objectionable. See State v. Johnson (1988), 233 Mont. 473, 476-77, 760 P.2d 760, 762. We do not find that to be the case here.

Accordingly, we hold that the District Court did not abuse its discretion in denying Whitlow’s motion for a new trial.

Affirmed.

JUSTICES GRAY, LEAPHART, HUNT and REGNIER concur.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CLARK CARTER, Defendant and Appellant.
    Nos. 95-203 & 96-090.
    Submitted on Briefs July 2, 1997.
    Decided November 25, 1997.
    54 St.Rep. 1235. 948 P.2d 1173.
    285 Mont. 449.

      For Appellant: Richard J. Carstensen, Billings.
    For Respondent: Joseph P. Mazurek, Attorney General, Brenda Nordlund, Assistant Attorney General, Helena; Thomas Meissner, Fergus County Attorney, Lewistown; Monte Jay Boettger, Lewis-town City Attorney, Lewistown.
   JUSTICE HUNT

delivered the Opinion of the Court.

This appeal involves two separate offenses by Defendant-Appellant Clark Carter (Appellant). At his request, and by order of this Court, the appeals were consolidated. On June 5,1993, Appellant was charged with driving under the influence of alcohol (DUI), third offense. On December 29, 1993, Appellant was again charged with DUI and resisting arrest. In both cases, Appellant failed to appear in justice court to defend, was tried in absentia, and was convicted. Appellant then obtained counsel and appealed both his convictions to District Court. In two separate de novo trials, the Tenth Judicial District Court, Fergus County, entered judgments of conviction on all counts. Appellant appeals his convictions. We affirm.

The issues on appeal are as follows:

1. Did the District Court err in admitting lay witness opinion testimony?

2. Did the District Court err in denying Appellant’s motion to dismiss the charge of resisting arrest on the basis of insufficient evidence?

3. Did the District Court err in admitting evidence of Appellant’s prior DUI convictions during the State’s cross-examination of Appellant’s character witnesses?

4. Did the District Court err in admitting Appellant’s breath test results?

5. Did the District Court err in admitting Appellant’s blood test results?

6. Did the District Court improperly forfeit Appellant’s vehicle?

BACKGROUND

The following facts form the basis of the appeal in No. 96-090. On June 5, 1993, a sheriff’s deputy stopped Appellant because he was driving in an erratic manner. The deputy detected an odor of alcohol and noted that Appellant was unsteady on his feet. Appellant believed he was not too drunk to drive and agreed to a breath test to confirm his belief. At the station house, a breath test specialist completed the standard operational checklist to make sure the breath instrument was working properly. Appellant took the breath test and registered a .226. Appellant was charged with third offense DUI.

On May 4, 1994, in justice court, Appellant was tried in absentia and convicted. The justice court ordered the sheriff to seize Appellant’s car as required by § 61-8-714(3)(b)(i), MCA (1993). Appellant then appealed to District Court. On July 27,1994, the District Court ordered that Appellant’s car be returned on the condition that he not operate, sell, transfer, or encumber the vehicle during the pendency of the proceedings without leave of court.

On April 18,1995, Appellant filed a motion in limine to exclude the results of his breath test until the State proved that the breath instrument had been properly tested by the State Forensics Laboratory, and that the instrument operator was certified. The District Court denied the motion on May 24, 1995.

On July 21, 1995, the parties agreed to submit this matter to the District Court for its decision based on stipulated facts which included the police reports and the breath test. Appellant reserved for appeal any issue he had previously raised. On July 27,1995, the court entered judgment against Appellant. Although the court sentenced Appellant to jail time and a fine, the court also ruled that Appellant’s car would not be forfeited, because § 61-8-714(3)(b)(i), MCA, did not apply. Appellant then filed a notice of appeal to this Court.

The next set of facts form the basis of the appeal in No. 95-203. On December 29, 1993, Appellant was charged with DUI and resisting arrest. An off-duty fireman, Keith Kucera, observed Appellant leave the Montana Tavern, cross the street, get in his car, and drive away. Kucera noted that Appellant was staggering as he walked. Kucera testified that because Appellant appeared intoxicated, he got in his own car, followed Appellant, and observed Appellant drive through a stop sign. Kucera reported Appellant to the police via his portable radio.

When the police officer caught up to Appellant, he activated his siren as Appellant was not responding to flashing lights. Appellant then stopped his car in the middle of the traffic lane. The officer approached Appellant and noticed a strong odor of alcohol and slurred speech. The officer administered two field sobriety tests. Based on the information Kucera related to him, and Appellant’s poor performance on the tests, the officer determined that Appellant’s estimated blood alcohol content (BAC) was over the legal limit of. 10. The officer asked Appellant to come to the station for more testing, but Appellant refused. The officer placed Appellant under arrest and warned him about resisting arrest, but Appellant still refused, stating that he was going to get in his car and drive home. The officer grabbed Appellant’s arm to prevent him from entering his car, but Appellant held on to the side mirror and tried to pull his arm away. The officer was forced to pry Appellant’s hand off the mirror in order to handcuff him. The officer then transported Appellant to the station house.

At the station house, the officer administered the field sobriety tests again while a second officer videotaped Appellant’s performance. The officers explained the implied consent form to Appellant and Appellant agreed to take a breath test. Before Appellant blew into the instrument, the second officer completed the standard operational checklist on the instrument to make sure it was working properly. Appellant then blew and registered a .120.

Appellant then requested an independent blood test. The officer transported Appellant to the hospital where a registered nurse drew a sample of Appellant’s blood using a blood test kit supplied by the State Forensics Laboratory. The State Forensics Division Analysis Report recorded a BAC of .190.

On May 5, 1994, in justice court, Appellant was tried in absentia and convicted. The justice court issued another order directing the sheriff to seize Appellant’s car under the forfeiture provision of § 61-8-714(3)(b)(i), MCA. Appellant again appealed to District Court. On July 26, 1994, the District Court again ordered that Appellant’s car be returned on the condition that he not operate, sell, transfer, or encumber the vehicle during the pendency of the proceedings without leave of court.

This case went to a jury trial on September 7, 1994, and the jury found Appellant guilty of both charges. Appellant’s sentencing was delayed until January 31,1995, due to health problems. Like the case above, the court sentenced Appellant to jail time and a fine for both charges. However, unlike the case above, the court ordered that Appellant’s car be forfeited pursuant to § 61-8-714(3)(b)(i), MCA. Appellant then filed a notice of appeal to this Court.

During the pendency of 95-203 and 96-090, Appellant transferred ownership of his car to his daughter. On March 14, 1995, the city attorney filed a motion requesting the court to order Appellant to show cause why he should not be in contempt for violating the court’s previous orders directing him not to encumber the title to his car. The court conducted a show cause hearing on April 18,1995. On April 19, 1995, the court found Appellant in contempt and ordered that Appellant have the title to the car transferred back to his name and deposited with the clerk of court pending a final decision on the cases by this Court. Additional facts will be provided as necessary to dispose of the issues raised.

DISCUSSION

Issue 1

Did the District Court err in admitting lay witness opinion testimony?

The standard of review for evidentiary rulings is whether the district court abused its discretion. State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063, 1067.

During the trial of No. 95-203, the State asked its eyewitness, Kucera, three questions pertaining to his opinion as to whether Appellant was intoxicated the night of December 29, 1993. In framing the questions, the State used terms like “What was your impression,” ‘What was your concern,” and “What was your feeling.” Over objection, Kucera answered the questions, stating that based on what he observed, Appellant was intoxicated.

Appellant argues that the court erred in admitting Kucera’s answers because the form of the State’s direct questions was improper under Rule 602, M.R.Evid. Rule 602, M.R.Evid., provides that “a witness may not testify as to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Appellant asserts that Kucera’s statements about his “impression,” “concern,” and “feeling” that Appellant was intoxicated do not meet the required standard of testifying from personal knowledge.

Appellant’s argument is without merit. Rule 701, M.R.Evid., provides:

Opinion testimony by lay witnesses. If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.

Additionally, in State v. Bradley (1993), 262 Mont. 194, 864 P.2d 787, we held that Rule 701, M.R.Evid., did not preclude a lay witness from testifying to a person’s state of intoxication. Bradley, 864 P.2d at 789 (citing Commission Comment, Rule 701, M.R.Evid.; State v. Hardy (1980), 185 Mont. 130, 134, 604 P.2d 792, 795).

It is undisputed that Kucera was a lay witness. An examination of the record makes clear that Kucera’s opinions or inferences as to Appellant’s intoxication were rationally based on his perception and personal knowledge. During direct-examination of Kucera, the State established that Kucera knew the objective signs of intoxication, that he had much experience being around people who have been in varying states of intoxication, and that he had observed Appellant for quite some time before alerting the police. Because the State complied with the foundational requirements of Rules 602 and 701, M.R.Evid., we conclude that the District Court did not abuse its discretion in admitting Kucera’s lay witness opinion testimony.

Issue 2

Did the District Court err in denying Appellant’s motion to dismiss the charge of resisting arrest on the basis of insufficient evidence?

The standard of review for determining sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Granby (1997), [283 Mont. 193], 939 P.2d 1006, 1009.

In No. 95-203, Appellant was charged with resisting arrest in addition to his DUI charge. Appellant argues that sufficient evidence did not exist to support the charge of resisting arrest. Section 45-7-301(1), MCA, provides the following:

A person commits the offense of resisting arrest if he knowingly prevents or attempts to prevent a peace officer from effecting an arrest by:
(a) using or threatening to use physical force or violence against the peace officer or another; or
(b) using any other means which creates a risk of causing physical injury to a peace officer or another.

In making his argument, Appellant relies solely on subpart (a) of the above statute. Appellant asserts that he never used or threatened physical violence against the arresting officer and, therefore, could not be guilty of resisting arrest.

The State responds by noting that § 45-7-301(1), MCA, has a subpart (b) as well as a subpart (a), and that under subpart (b), a person is guilty of resisting arrest if the person merely created a risk of causing physical injury to the peace officer. The State argues that “[office an officer has to engage in a physical struggle with an arrestee in order to prevent him from driving away, a risk that the officer or another might be physically injured is created.” We agree.

The record shows that Appellant stated his intent to drive home, and that when the officer tried to prevent Appellant from leaving, he grabbed on to the mirror and would not let go. Finally, the officer was forced to pry Appellant’s hand off of the mirror and wrestle him into handcuffs in order to effectuate the arrest. We conclude that under these circumstances, there was sufficient evidence from which the jury could have found that Appellant resisted arrest by creating a risk of causing physical injury to the police officer.

Issue 3

Did the District Court err in admitting evidence of Appellant’s prior DUI convictions during the State’s cross-examination of Appellant’s character witnesses?

The standard of review for evidentiary rulings is whether the district court abused its discretion. State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063, 1067.

During the trial of No. 95-203, Appellant called three witnesses from the community who testified to Appellant’s reputation in the community for being truthful and honest, and for having a good character in general. On cross-examination, the State asked the witnesses whether they were aware of Appellant’s four prior DUI convictions, and whether those convictions would change their opinion of Appellant. Appellant objected to this questioning on the ground that it was improper because it elicited “other crimes” evidence without giving Appellant proper notice pursuant to State v. Just (1979), 184 Mont. 262, 602 P.2d 957. Appellant also objected on the ground that the State’s information was untrue because two of the four DUIs referenced were the ones being appealed (95-203 and 96-090), and were not yet final convictions.

Initially, the court overruled both objections. However, later when Officer Doney took the witness stand, the court reconsidered Appellant’s second ground for objection in chambers. The court ruled that only evidence of Appellant’s two February, 1993 DUI convictions would be admitted. Thus, when the State resumed direct-examination of Officer Doney, Officer Doney testified that Appellant’s records reflected two 1993 DUI convictions, not including the ones currently appealed.

On appeal to this Court, Appellant makes the same arguments that were the bases for his objections below. The State responds that the Just requirements regarding notification do not apply in the instant case because the evidence elicited on cross-examination was not “other crimes” evidence under Rule 404(b), M.R.Evid. Rather, the State argues, the cross-examination served to impeach the testimony that Appellant presented regarding his own good character, and, therefore, was proper under Rule 404(a)(1), M.R.Evid.

Although character evidence is generally not admissible to prove conduct, an accused may present evidence of a pertinent trait of his character, and the prosecution may offer contradictory evidence to rebut the same, or to test the witness’ knowledge. Rule 404(a)(1), M.R.Evid.; State v. Clark (1984), 209 Mont. 473, 682 P.2d 1339. When the accused presents evidence not of a pertinent trait of his character, but of his good character in general, “he opens the door to all legitimate cross-examination... and must therefore accept the consequences which result.” State v. Heine (1975), 169 Mont. 25, 28, 544 P.2d 1212, 1214.

Rule 405(a), M.R.Evid., provides the proper method of proving character evidence:

Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

Just notice procedures are not required to rebut or impeach an accused’s good character evidence. State v. McQuiston (1996), 277 Mont. 397, 403, 922 P.2d 519, 523.

Applying the law to the instant case, it is clear that the State’s cross-examination was proper rebuttal evidence under Rule 404(a)(1), M.R.Evid. Throughout its case-in-chief, the State refrained from placing before the jury evidence of Appellant’s prior DUI convictions. Once Appellant himself placed his general good character at issue, the State was afforded all legitimate cross-examination to rebut this evidence and to test the witnesses’ knowledge. The State’s questioning about Appellant’s prior DUI convictions was legitimate cross-examination under Rule 405(a), M.R.Evid., as that rule permits inquiry into relevant specific instances of Appellant’s conduct. We conclude that the District Court did not abuse its discretion in admitting evidence of Appellant’s prior DUI convictions.

Regarding the misstatement of the number of prior DUI convictions, the State argues that although this was error, it was harmless error. We agree. We have held that “[a]n error by the trial court will be deemed harmless ‘unless the record shows that the error was prejudicial.’ ” State v. Bower (1992), 254 Mont. 1, 5-6, 833 P.2d 1106, 1109 (quoting § 46-20-701(1), MCA). In determining the prejudicial effect of an error, we examine the totality of circumstances in which the error occurred. Bower, 833 P.2d at 1109 (citation omitted). Despite the misstatement as to the number of DUI convictions, two DUI convictions were ultimately admitted against Appellant. Further, the record shows that the State corrected its error when it recalled Officer Doney to the stand and elicited from him testimony that Appellant’s record reflected only two DUI final convictions. In light of this correction, and the other evidence establishing Appellant’s guilt such as the field sobriety, breath, and blood tests, we hold that the misstatement was harmless error.

Issue 4

Did the District Court err in admitting Appellant’s breath test results?

It is within the broad discretion of the district court to determine whether evidence is relevant and admissible. State v. Woods (1995), 272 Mont. 220, 222, 900 P.2d 320, 321 (citation omitted). The standard of review for evidentiary rulings is whether the district court abused its discretion. Woods, 900 P.2d at 321.

A defendant charged with DUI is entitled to the procedural safeguards contained within the Administrative Rules of Montana. Woods, 900 P.2d at 322 (citing State v. West (1992), 252 Mont. 83, 89, 826 P.2d 940, 944; State v. O’Brian (1989), 236 Mont. 227, 229, 770 P.2d 507, 508). Where the State seeks to admit a breath test analysis as evidence of DUI, but fails to lay a proper foundation by establishing compliance with the administrative rules, the breath test analysis is inadmissible. Woods, 900 P.2d at 322.

Appellant argues that in both 95-203 and 96-090, his breath test analysis was inadmissible because the State failed to lay a proper foundation. Specifically, Appellant argues that the State failed to establish that the breath instrument was field certified and that the breath instrument operator was certified.

The administrative rules require that (1) breath analysis instruments must be field certified for accuracy at least once every seven days by a breath test specialist, § 23.4.213, ARM; (2) no individual may perform a breath test without a valid permit issued by the division of forensic science, § 23.4.218, ARM; and (3) all breath test operators must be recertified on an annual basis by attending a recertification course approved by the division, § 23.4.217, ARM.

As the only support for his argument that the State failed to lay a proper foundation, Appellant refers to an excerpt of a copy of a performance audit prepared by the State of Montana, Office of the Legislative Auditor of the Forensic Science Division, Department of Justice. The audit identifies deficiencies in breath instrument operator training, and a lack of consistent procedures for quality assurance of breath instrument operation. The audit also makes recommendations for correcting these deficiencies. Appellant sets forth the audit as proof that the State failed to comply with the administrative rules. Although Appellant makes no reference to the date of the audit, the audit makes statistical references to the year 1987, and mentions §§ 23.4.205 and 23.4.206, ARM, repealed in 1991, as applicable statutes. Thus, from the record, it appears that the audit was prepared sometime between 1987 and 1991.

Appellant’s position has no merit. Aside from being an outdated document, the audit cannot be recognized as legal authority. Moreover, the record shows that the State in fact complied with §§ 23.4.213, 23.4.217, and 23.4.218, ARM. In both 95-203 and 96-090, Appellant’s breath test was administered by a certified breath test specialist who had completed the necessary internal checks on the instrument to assure that it was working and properly calibrated. Additionally, in 95-203, the record establishes that the breath instrument was provided to the Lewistown Police Department by the forensic science division of the State of Montana and, therefore, had been approved by the division as provided in § 23.4.209, ARM. Under these circumstances, we hold that the District Court did not abuse its discretion in admitting the results of Appellant’s breath tests.

Issue 5

Did the District Court err in admitting Appellant’s blood test results?

Dinring the trial of 95-203, Appellant objected on several grounds to the admission of his blood test results. On appeal, Appellant set forth the portion of the transcript containing his objections and then summarily argued that admission of the blood test results “was improper and requires reversal.” Appellant set forth no citation to authority or legal analysis to support his argument.

An appellant carries the burden of establishing error by the trial court. Rule 23, M.RApp.P., requires an appellant to cite to authority for the position being advanced on appeal. In this case, because Appellant failed in this regard, he cannot establish any error. State v. Fina (1995), 273 Mont. 171, 181, 902 P.2d 30, 38. We conclude that the District Court did not err in admitting into evidence Appellant’s blood test results.

Issue 6

Did the District Court improperly forfeit Appellant’s vehicle?

Appellant argues that in both 95-203 and 96-090, the District Court improperly forfeited his vehicle. With respect to 96-090, the State contends that forfeiture is a non-issue because the District Court did not apply the forfeiture provisions in that case. The State cites the judgment of 96-090, wherein the District Court stated:

Under the facts of this case, in the interest of justice, the provisions of section 61-8-714(3)(b)(i) MCA, shall not apply and the vehicle driven by the Defendant shall not be subject to forfeiture ....

The State is correct. Given the District’s Court’s judgment, we determine that Appellant’s claimed error, as it pertains to 96-090, did not occur.

With respect to 95-203, Appellant contends that the District Court erred when it forfeited Appellant’s vehicle before his third DUI conviction became final. Section 61-8-714(3)(b)(i), MCA(1993), provides:

On the third or subsequent conviction, the court, in addition to any other penalty imposed by law, shall order the motor vehicle owned and operated by the person at the time of the offense to be seized and subjected to the [forfeiture] procedure provided under 61-8-421.

Appellant argues that although the DUI which is the subj ect of95-203 is his third, no forfeiture can take place until the conviction becomes final, that is, until this Court affirms the conviction on appeal. Appellant seeks to have the forfeiture set aside pending appeal.

The State responds that while the court ordered Appellant’s vehicle to be forfeited, no actual forfeiture has taken place because the petition for forfeiture was stayed pending appeal. The State points to the District Court’s order of April 19, 1995, wherein the court: (1) found Appellant in contempt for violating its previous directive not to transfer or encumber the title to his car; (2) ordered Appellant to secure return of title to the car and deposit it with the clerk of court; and (3) stayed the State’s Petition for Forfeiture pending final resolution of the appeal by this Court. The State argues that the District Court’s order was proper in order to prevent Appellant from eluding the forfeiture penalty by transferring his car before the final determination of his guilt or innocence.

As the parties have raised no factual dispute, the standard of review is whether the district court correctly interpreted the law. State v. Gould (1995), 273 Mont. 207, 219, 902 P.2d 532, 540.

The authority relied upon in ordering Appellant to secure return of title to the car and deposit it with the clerk of court pending a final resolution of the case is § 61-8-422, MCA. That statute provides:

(1) It is unlawful for the owner of a vehicle subject to actions under ... 61-8-714 ... to transfer, sell, or encumber the owner’s interest in that vehicle from the time of the owner’s arrest or the filing of the underlying charge until the time that the underlying charge is dismissed, the owner is acquitted of the underlying charge, the issue of seizure or forfeiture is resolved by the sentencing court, or the underlying charge is otherwise terminated.
(2) The prohibition against transfer of title may not be stayed pending the determination of an appeal from the conviction on the underlying charge.

Under § 61-8-422, MCA(1993), the District Court’s order preventing Appellant from alienating the title to his car was proper. We conclude that the District Court correctly interpreted the law.

Affirmed.

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


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. PHILLIP EARNEST KEATING, Defendant and Appellant.
    No. 97-065.
    Submitted on Briefs August 14, 1997.
    Decided November 25, 1997.
    54 St.Rep. 1250. 949 P.2d 251.
    285 Mont. 463.

      For Appellant: David. F. Ness, Attorney at Law, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Elizabeth L. Griffing, Ass’t Attorney General, Helena; Mike McGrath, Lewis and Clark County Attorney, Vicki Frazier, Deputy Lewis and Clark County Attorney, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Phillip Keating (Keating) appeals from the judgment and commitment entered by the First Judicial District Court, Lewis and Clark Comity, on a jury verdict finding him guilty of the offense of threats in official matters. He contends that the District Court erred in denying both his motion to dismiss based on speedy trial grounds and his motion for a directed verdict. We affirm.

The issues on appeal are:

1. Did the District Court err in failing to dismiss the case on the grounds of denial of a speedy trial?

2. Did the District Court abuse its discretion when it denied Keating’s motion for a directed verdict?

BACKGROUND

On the evening of November 22, 1995, Deputy Jack Shamley and Deputy Dave Peterson (collectively the deputies) of the Lewis and Clark County Sheriff’s Department (Sheriff’s Department) attempted to serve civil process on Keating on two separate occasions. During the second attempt, Deputy Peterson approached Keating’s residence at the King’s Carriage Inn while Deputy Shamley waited by the patrol car. When Deputy Peterson knocked, Keating opened the inside, wooden door but not the glassed-in, outer door. Deputy Peterson told Keating that he had papers to serve on him, at which time Keating began to yell at Deputy Peterson that he was trespassing and should leave. The deputies then left the property without accomplishing service of process.

Shortly thereafter, the 911 dispatcher contacted the deputies and told them that Keating had telephoned and made a threat. During that telephone conversation, Keating stated, “From this point forward, this is official notice, do not, do not allow officers on property belonging to Phil Keating in Lewis and Clark County for fear they may be killed. ... Do not go on the property.”

On November 24, 1995, the State of Montana (State) filed a complaint in the Justice Court of Lewis and Clark County alleging that Keating had committed the offense of threats in official matters. The Justice Court issued an arrest warrant for Keating and set bond at $100,000. On November 27, 1995, the District Court revoked Keating’s bond on pending assault and drug charges due to various incidents of bizarre and threatening behavior by Keating, including the alleged threat against the law enforcement officers. It ordered Keating’s arrest and detention without bond pending a hearing. Keating was arrested that same day in Missoula, Montana.

On December 21, 1995, the Justice Court bound Keating over to the District Court for further proceedings on the charge of threats in official matters, a felony, and the State subsequently filed an information in the District Court charging that offense. After a bond hearing on December 21, 1995, the District Court ordered bond set at $100,000 for this case and $100,000 for the assault and drug case and set conditions in the event Keating posted the bond. Following Keating’s suggestions, the District Court ordered him to live in Butte, Montana, with Duane Hanson (Hanson) pending trial. The District Court also ordered Keating not to enter Jefferson or Lewis and Clark County for any reason except to visit with his attorney; Hanson was to accompany him on any such trips. The conditions subsequently were amended several times. Among other things, the District Court altered the prohibition against entering Lewis and Clark County “under any circumstances” to a prohibition against doing so without prior approval of the court.

Keating was arraigned on January 25, 1996, and his trial in this case was scheduled for April 8, 1996, as the second criminal trial setting on that date. In March of 1996, Keating’s attorney moved to withdraw and the District Court granted the motion. The State also made two discovery motions in March of 1996, which the District Court granted.

The first case on the District Court’s calendar went to trial on April 8, 1996, and, as a result, Keating’s trial did not occur on that date. Shortly thereafter, and in response to a motion by the State, the District Court rescheduled Keating’s trial for July 22, 1996. In the meantime, Keating obtained new counsel to represent him in both cases and his trial on the assault and drug charges ended in a mistrial. On July 12,1996, the District Court vacated the July 22 trial date for this case and reset it for August 19, 1996.

Keating moved to dismiss for lack of a speedy trial on the morning of trial. Counsel argued the motion after voir dire and prior to the impanelling of the jury. The District Court denied the motion and the case proceeded to trial. At the close of the State’s case, Keating moved for a directed verdict. The District Court denied the motion and the jury ultimately convicted Keating of threats in official matters. Judgment was entered and Keating appeals.

1. Did the District Court err in failing to dismiss the case on the grounds of denial of a speedy trial?

As set forth above, Keating filed his motion to dismiss based on denial of his right to a speedy trial on the morning of trial. Concluding that the motion was untimely, the District Court denied it.

The Sixth Amendment to the United States Constitution and Article II, Section 24, of the Montana Constitution guarantee a criminal defendant the right to a speedy trial. State v. Matthews (1995), 271 Mont. 24, 27, 894 P.2d 285, 287 (citations omitted). The primary purpose of the right to a speedy trial is protecting defendants from oppressive trial tactics by the State. State v. Gould (1995), 273 Mont. 207, 216, 902 P.2d 532, 538 (citations omitted). We apply the test set forth by the United States Supreme Court in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, to determine whether a defendant’s right to a speedy trial has been violated. Matthews, 894 P.2d at 287 (citing State ex rel. Briceno v. Dist. Ct. of 13th Jud. Dist., Etc. (1977), 173 Mont. 516, 568 P.2d 162). The test requires the balancing of four factors:

1) length of the delay;
2) reason for the delay;
3) defendant’s assertion of the right; and
4) prejudice to the defendant.

Matthews, 894 P.2d at 287 (citations omitted). No single factor is determinative; each is weighed in light of the surrounding facts and circumstances. State v. Williams-Rusch (1996), 279 Mont. 437, 449, 928 P.2d 169, 176 (citation omitted).

Whether a defendant’s speedy trial rights have been violated is a question of law. We review a district court’s conclusions of law to determine whether the interpretation of the law is correct. State v. Foshee (1997), [282 Mont. 326], 938 P.2d 601, 604 (citation omitted).

Length of the Delay

The first factor, the length of the delay, acts as a triggering mechanism. Matthews, 894 P.2d at 287. If the delay is sufficient to be presumptively prejudicial, analysis of the remaining factors is required. Williams-Rusch, 928 P.2d at 176 (citations omitted). Moreover, while we have declined to establish a “bright line” test for determining whether the length of the delay is presumptively prejudicial, a delay of over 200 days usually will trigger the analysis. See State v. Thompson (1993), 263 Mont. 17, 32, 865 P.2d 1125, 1135 (citations omitted).

In this case, the State concedes that the 270-day delay is presumptively prejudicial and triggers the full speedy trial analysis. Thus, we address the remaining three speedy trial factors, keeping in mind that once the delay has been determined to be presumptively prejudicial, the State generally has the burden of providing a reasonable explanation for the delay and showing that the defendant was not prejudiced by the delay. State v. Tweedy (1996), 277 Mont. 313, 320, 922 P.2d 1134, 1138 (citation omitted).

Reason for the Delay

Consideration of the second Barker factor, the reason for the delay, requires an allocation of the delay attributable to each party. Matthews, 894 P.2d at 287 (citation omitted). Here, the delay began when the first case set for trial on April 8, 1996, proceeded to trial. Three weeks later, the District Court rescheduled Keating’s trial for July 22,1996. Meanwhile, Keating’s trial on the unrelated assault and drug charges ended in a mistrial on July 9,1996, and the District Court rescheduled that case — which had been pending longer — for July 22, 1996, thus conflicting with the trial date set for this case. The District Court then scheduled this case for trial on August 19,1996.

On this record, none of the delay in this case can be allocated to Keating. He did not move to continue either the April 8 or the July 22 trial date. Nor did he file motions which necessitated trial delays pending resolution. The delays which occurred were inherent in the system and “[d]elay inherent in the system is chargeable to the State.” See State v. Hembd (1992), 254 Mont. 407, 413, 838 P.2d 412, 416 (citation omitted). We conclude, therefore, that the entire delay in this case is chargeable to the State.

We also must weigh the delay chargeable to the State. Tweedy, 922 P.2d at 1138. The approximately 240 days which elapsed prior to the July 22 trial date resulted from both ordinary procedures associated with criminal prosecutions, such as scheduling and holding the omnibus hearing, and the difficulties in setting — and keeping — trial dates which related to the District Court’s crowded docket. Such delays are characterized as institutional delay. See Thompson, 865 P.2d at 1135 (citation omitted). Conflict with the trial date set for Keating’s assault and drug case following the mistrial accounts for the remainder of the delay. This delay also is properly characterized as institutional delay. See State v. Lane (1996), 279 Mont. 128, 133, 927 P.2d 989, 992. None of the delay in this case was intentional delay.

Institutional delay weighs less heavily against the State than intentional delay. Tweedy, 922 P.2d at 1138 (citation omitted). Therefore, while the entire delay is attributable to the State, the State has met its burden of providing a reasonable explanation for the delay by establishing that the delay was institutional rather than intentional. See Tweedy, 922 P.2d at 1138. As a result, the 270-day delay in this case does not weigh heavily against the State.

Assertion of the Right

The third Barker factor requires a defendant to assert the right to a speedy trial. Matthews, 894 P.2d at 288. Our rule in Montana is that, if a defendant moves to dismiss before trial, he has fulfilled the requirement of asserting his constitutional right to a speedy trial. Tweedy, 922 P.2d at 1139 (citation omitted).

Here, Keating filed his motion to dismiss on the morning of trial, but before the trial began. Pursuant to Tweedy, his motion was timely filed and the District Court erred in concluding otherwise.

Technical compliance with the assertion of the right requirement does not end the discussion of this factor, however. As set forth above, the Barker test requires a balancing of the speedy trial factors in light of the surrounding facts and circumstances. Williams-Rusch, 928 P.2d at 176; Matthews, 894 P.2d at 287. Indeed, we previously have determined that failing to assert the right to a speedy trial until four days before trial indicates a defendant’s lack of an actual interest in moving the case to trial which should be considered in the process of balancing the Barker factors. Thompson, 865 P.2d at 1135.

In this case, Keating did not file his motion to dismiss or indicate in any other way that he was interested in moving his case to trial until the morning of trial. Had he been interested in doing so, he could have objected in April of 1996, when his trial was rescheduled to July 22, 1996. It was at that point that speedy trial implications arose because 240 days would have elapsed by the rescheduled trial date. Keating did not object to the trial date or indicate any interest in regard to moving his case to trial at that time. Nor did he do so when the July 22 trial date was vacated and his trial was reset for August 19, 1996.

The State contends that another indication of Keating’s lack of interest in moving this case to trial was his failure to object to the April 8 trial date when it was set at the omnibus hearing in February of 1996. While the State is correct in positing that a defendant’s failure to object to a trial date at the omnibus hearing is a consideration in some cases (see Williams-Rusch, 928 P.2d at 178), Keating’s failure to object to the trial date set at the omnibus hearing is not pertinent here.

In Williams-Rusch, the omnibus hearing was held almost eleven months after the defendant was arrested and a trial date was set for almost six months later. Notwithstanding that the speedy trial time parameters already had been exceeded by the time of the omnibus hearing, the defendant did not object at that time to the delayed trial date. Williams-Rusch, 928 P.2d at 177-78. We concluded that the defendant exhibited a lack of interest in moving her case to trial, which should be considered in the Barker balancing process. Williams-Rusch, 928 P.2d at 178 (citations omitted). In contrast, Keating’s omnibus hearing was held less than three months after he was originally charged and the April 8,1996, trial date set at that hearing was only 137 days after the complaint was filed in Justice Court. No speedy trial implications arose at that time and, as a result, Keating’s failure to object to the trial date set at the omnibus hearing is not a proper consideration in this case.

We conclude that Keating’s delay in asserting his right to a speedy trial until the morning of trial indicates his lack of an actual interest in moving the case to trial and, as a result, we weigh this factor against him. This factor is not determinative, however, since his motion was technically timely, and it is necessary to complete the Barker balancing process by considering the final factor.

Prejudice to the Defendant

The final factor which must be analyzed under the Barker test is prejudice to the defendant. Prejudice is assessed in light of three interests which the speedy trial right was designed to protect: prevention of oppressive pretrial incarceration; minimization of anxiety and concern; and avoidance of impairment of the defense. Matthews, 894 P.2d at 288 (citation omitted). While each interest is important, impairment of the defense is the most critical. Matthews, 894 P.2d at 288 (citation omitted).

With regard to pretrial incarceration, Keating was held in the Missoula County jail for approximately thirty days while awaiting a bond hearing and before posting bond. He does not contend that this constituted oppressive pretrial incarceration. Moreover, it appears that Keating’s incarceration pending a bond hearing resulted from the District Court’s order revoking an earlier bond in the pending assault and drug case, since the Justice Court set bond in the present case at $100,000 when it issued the arrest warrant. When a defendant is incarcerated on separate charges, the pretrial incarceration does not result in prejudice in the case at bar. Lane, 927 P.2d at 992 (citations omitted). On this record, Keating’s incarceration was neither oppressive nor prejudicial.

With regard to anxiety and concern, we have recognized that a certain amount of anxiety and concern is inherent in being charged with a criminal offense. State v. Weeks (1995), 270 Mont. 63, 73, 891 P.2d 477, 483 (citation omitted). We also have indicated that the anxiety and concern to be assessed under the Barker test is anxiety and concern which was “aggravated as a result of the delay.” Williams-Rusch, 928 P.2d at 178. “[S]ince it is nearly impossible for the State to prove that anxiety and concern do not exist, the State’s burden to show a lack of anxiety becomes considerably lighter in the absence of more than marginal evidence of anxiety.” Williams-Rusch, 928 P.2d at 178 (citations omitted).

Here, Keating’s argument relating to anxiety and concern focuses on bond-related matters. He contends that the combination of the bond amount and his inability to properly manage his Helena businesses from Butte resulted in financial difficulties which caused him “a great deal of anxiety and concern.” He also contends that, as a result of being prohibited from entering Lewis and Clark or Jefferson County, he was separated from his children, missed his daughter’s high school graduation and was unable to visit his father, who died while Keating was awaiting trial.

The first problem with Keating’s contentions is that they relate to bond matters rather than anxiety and concern aggravated by the delay in bringing this case to trial. We will not address the merits of those bond-related matters in the context of the speedy trial analysis.

Furthermore, the main thrust of Keating’s anxiety and concern argument is that the living and travel restrictions created financial difficulties and separation from his family. These living and travel restrictions were suggested by Keating himself, however, to encourage the District Court to set bond in light of what the District Court characterized as “bizarre” behavior and of threats he had made to and against various people in Lewis and Clark and Jefferson Counties while free on bond in the assault and drug case. We will not allow Keating to rely on bond conditions he proposed to his own benefit at the time they were imposed to establish anxiety and concern in the speedy trial context where, as here, it is clear that the difficulties those conditions caused were entirely predictable.

In addition, with specific regard to Keating’s contentions regarding his father and his daughter, Keating’s father died in January of 1996, long before any speedy trial time or delay problems arose in this case. Moreover, by the time of Keating’s daughter’s graduation, the District Court had lifted the travel restrictions on several occasions in response to timely motions. That Keating failed to timely request such a modification for purposes of his daughter’s graduation cannot constitute anxiety and concern aggravated by the delay in bringing this case to trial.

Here, there is no evidence that Keating suffered excessive anxiety and concern as a result of the delay in bringing this case to trial. We will not hold the State to the nearly impossible task of proving that anxiety and concern do not exist. See Foshee, 938 P.2d at 606.

Finally, we consider the most critical of the prejudice-related interests the speedy trial right was designed to protect: whether Keating’s defense was impaired by the delay. See Matthews, 894 P.2d at 288. As set forth above, once the delay has been determined to be presumptively prejudicial, the State has the burden of rebutting the presumption of prejudice. Tweedy, 922 P.2d at 1138. This does not necessarily mean, however, that the State has the burden of coming forward first. Indeed, in addressing the impairment of the defense interest, our recent cases indicate that the defendant ordinarily must come forward with some evidence that the defense was impaired— that is, prejudiced — as a result of the delay. See, e.g., Foshee, 938 P.2d at 605-07; Lane, 927 P.2d at 993; Tweedy, 922 P.2d at 1139; Matthews, 894 P.2d at 288-89. From a practical standpoint, it would be virtually impossible for the State to rebut presumed prejudice from an allegedly impaired defense without some showing by the defendant of actual impairment resulting in prejudice. Thus, we look first at the evidence Keating presented in support of his allegation that his defense was impaired by the delay in bringing his case to trial.

Keating’s primary thrust in this regard was that the delay resulted in the unavailability of testimony from his father and two other witnesses to buttress his defense at trial that his threat was a reaction to past harassment by local law enforcement agencies. He also contended that he could remember the events at issue only vaguely.

The record is clear, however, that Keating’s father died prior to the original trial date for this case. Thus, the later trial date did not impair Keating’s defense in this regard. Similarly, the alleged impairment of the defense due to the unavailability of two other unidentified witnesses is controverted by Keating’s own testimony, at the hearing on his speedy trial motion, that approximately fifty witnesses could testify to the harassment he allegedly experienced from local law enforcement. Absent some indication that the unavailable witnesses could provide unique information not obtainable from other witnesses, the unavailability of two witnesses out of fifty cannot constitute prejudice.

Finally, although Keating testified that he only vaguely remembered the events in question, he testified affirmatively at trial as to his purpose in making the threat. Nor did he deny that he made the threat on which the charge was based. While Keating’s memory may not have been as clear in August of 1996 as it would have been in April of 1996, he made no showing of how that impaired his defense. Taking the minimal evidence Keating presented together with the State’s record-based arguments, we conclude that Keating’s defense was not impaired by the delay.

In summary, although the delay itself and the reason for it weigh against the State, they do not weigh heavily in this case. Keating’s delay in asserting his right, however, indicates his lack of an actual interest in moving the case to trial. Moreover, Keating did not experience either oppressive pretrial incarceration or excessive anxiety and concern resulting from the delay in bringing his case to trial. Nor did he make a showing of actual impairment to his defense. Thus, while the District Court erred in concluding that Keating’s motion to dismiss was untimely, a balancing of the Barker factors necessitates our conclusion that Keating’s right to a speedy trial has not been violated in this case. We hold, therefore, that the District Court did not err in denying Keating’s motion to dismiss for lack of a speedy trial.

2. Did the District Court abuse its discretion when it denied Keating’s motion for a directed verdict?

The State charged Keating with threats in official matters under § 45-7-102(1)(a)(i), MCA (1995), which provides:

(1) A person commits an offense under this section if the person purposely or knowingly: (a)(i) threatens harm to any person... with the purpose to influence the person’s decision, opinion, recommendation, vote, or other exercise of discretion as a public servant, party official, or voter [.]

In the context of this case, it was necessary for the State to prove that Keating: 1) purposely or knowingly 2) threatened harm to law enforcement officers 3) for the purpose of influencing their exercise of discretion. Keating moved for a directed verdict at the end of the State’s case, arguing that the State did not establish that his threat to kill officers coming on his property to serve process was made for the purpose of influencing an exercise of discretion. The District Court denied the motion.

A district court’s decision to grant or deny a motion for a directed verdict lies within its sound discretion and will not be overturned absent an abuse of that discretion. State v. Romannose (1997), [281 Mont. 84], 931 P.2d 1304, 1307 (citation omitted). “We review a trial court’s denial of a motion for a directed verdict to determine whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Romannose, 931 P.2d at 1307 (citation omitted).

Keating argues that the State failed to prove two elements of the offense of threats in official matters. First, he contends that the deputies were not involved in a discretionary duty when they attempted to serve him with civil process because sheriff’s deputies have a statutory duty to serve civil process and Rule 4D, M.R.Civ.P., mandates the manner in which that duty is to be performed. Keating also argues that his threat was not made for the purpose of influencing an exercise of discretion. Interspersed throughout both of his arguments is Keating’s notion that he should have been charged with intimidation rather than threats in official matters, and it is appropriate to dispose of this theory before addressing whether the District Court erred in denying the motion for a directed verdict.

A person commits the statutory offense of intimidation when:

with the purpose to cause another to perform or to omit the performance of any act, he communicates to another, under circumstances which reasonably tend to produce a fear that it will be carried out, a threat to perform without lawful authority any of the following acts: (a) inflict physical harm on the person threatened[.]

Section 45-5-203(1)(a), MCA (1995). Thus, it may be true that the charge of intimidation was available to the State in this case. The law is clear, however, that “when the facts of a case support a possible charge of more than one crime, the crime to be charged is a matter of prosecutorial discretion.” State v. Smaage (1996), 276 Mont. 94, 98, 915 P.2d 192, 194-95 (citation omitted); see also State v. Arlington (1994), 265 Mont. 127, 165, 875 P.2d 307, 330 (citations omitted). As a result, the fact that a different offense could have been charged has no bearing on whether the State presented evidence from which a rational trier of fact could find the elements of the offense of threats in official matters under § 45-7-102(1)(a)(i), MCA (1995), beyond a reasonable doubt. See Smaage, 915 P.2d at 195 (citation omitted).

Keating’s primary argument is that service of process is not a discretionary function which can serve as the basis for a charge of threats in official matters under § 45-7-102(1)(a)(i), MCA (1995). Notwithstanding Keating’s repeated use of the term “discretionary function,” however, § 45-7-102(1)(a)(i), MCA (1995), defining threats in official matters, speaks to a threat made for the purpose of influencing an “exercise of discretion” by a public servant; it does not speak to a “discretionary function.” Therefore, the fact that service of process is a statutory duty under § 7-32-2121(9), MCA (1995), rather than a “discretionary function,” does not relate to the issue of whether service of process involves an exercise of discretion under § 45-7-102(l)(a)(i), MCA (1995).

We have defined discretion as involving “the power of choice among several courses of action, each of which is considered permissible.” Sourdough v. Board of County Com’rs (1992), 253 Mont. 325, 327, 833 P.2d 207, 208 (citation omitted). As a result, if service of process involves “the power of choice among several courses of action,” then service of process by the sheriff’s deputies involves an exercise of discretion which can serve as the basis for a charge of threats in official matters.

Rule 4D, M.R.Civ.P., governs service of process in Montana. In the case of personal service within the state, it simply requires that the person, or that person’s designated agent, be personally served by delivery of a copy of the summons and complaint. Rule 4D(2)(a), M.R.Civ.P. The Rule neither requires nor prohibits service at any particular time or place. Under Rule 4D, then, deputies generally can accomplish personal service of process wherever and whenever the person to be served can be found.

Indeed, the record in this case reflects that the Sheriff’s Department uses a variety of discretionary methods of serving process. On some occasions, the person to be served is asked to come in and pick up the process; alternatively, deputies may serve the person at the person’s residence or some other location. Deputy Shamley testified that he had served process on Keating outside the courtroom, rather than at his residence, on a previous occasion. He also testified that a dangerous situation could cause him to decide not to serve civil process at a person’s residence at all. Finally, he testified that he took Keating’s threat seriously in this case and, as a result, directed that a minimum of two officers be present when efforts were made to serve civil process on Keating.

Based on the requirements of Rule 4D, M.R.Civ.P., and Deputy Shamley’s testimony that discretion is exercised in determining where and when process will be served, it is clear that service of process involves the power of choice among several courses of action. On that basis, we conclude that service of process involves an “exercise of discretion” under § 45-7-102(1)(a)(i), MCA (1995).

Keating’s final argument is that the State did not establish that his threat that law enforcement officers coming on to his property “may be killed” was made for the purpose of influencing an exercise of discretion. He contends, in this regard, that he did not know the deputies were at his residence on the evening of November 22, 1995, to serve him with process, so his telephone threat later that evening was not an attempt to influence how that service was accomplished.

Deputy Peterson testified, however, that he told Keating he “had some papers to serve on him.” Deputy Shamley corroborated that testimony by testifying that he heard Deputy Peterson so advise Keating. According to Deputy Peterson, Keating started yelling when told the purpose of the deputies’ visit, telling Deputy Peterson he was trespassing and must leave. The deputies left without accomplishing service of process and Keating made his telephone threat shortly thereafter. Moreover, Keating himself testified that, if he knew civil papers were to be served on him and the Sheriff’s Department called him, he would go to the Sheriff’s Department to pick them up. The evidence regarding Keating’s awareness of the deputies’ reason for being at his residence, his insistence that he would pick up any papers to be served on him at the Sheriff’s Department, and his threat after the deputies attempted to serve him with process was sufficient to permit the jury to infer that Keating purposely or knowingly threatened the deputies with the purpose to influence their exercise of discretion regarding where and when to accomplish service of process on him.

We conclude that, viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense of threats in official matters beyond a reasonable doubt. We hold, therefore, that the District Court did not abuse its discretion in denying Keating’s motion for a directed verdict.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, REGNIER and HUNT concur.