author: MR. JUSTICE HUNT

text:
    VALLEY UNIT CORPORATION, a Montana corporation, Petitioners, v. CITY OF BOZEMAN, Montana, a municipal corporation, the City Commission of and for the City of Bozeman, Montana, Namely, Kenneth Weaver, Mary Vanthull, Anne Anderson and Judy Mathre, Respondents. D.A. DAVIDSON & CO., INC., a Montana corporation, Intervenor, v. VIRGIL JAHNKE, Phyllis Jahnke and Valley Unit Corporation, a Montana corporation, Defendants in Intervention.
    No. 88-097.
    Submitted on Briefs March 31, 1988.
    Decided May 10, 1988.
    Rehearing Denied June 13, 1988.
    754 P.2d 822.
    Kelly M. Hogan, Bozeman, for petitioners.
    Bruce Becker, City Atty., J. Robert Planalp, Bozeman, for respondents.

      Bruce A. MacKenzie, Bozeman, for D.A. Davidson.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This is an application for a writ of certiorari for which Virgil and Phyllis Jahnke d/b/a Valley Unit Corp. seek review of a contempt order of the District Court, Eighteenth Judicial District, Gallatin County against Virgil Jahnke. The petition for the writ of certiorari is denied.

In 1982, Valley Unit Corp. sued the City of Bozeman (the City) and its commissioners in the District Court, contesting the procedures the City used to assess special improvement district (SID) bonds on Valley Unit’s development project. In the court order dated September 6, 1985, based on the settlement of this matter, the City was directed to relevy and reassess the SIDs and Valley Unit was ordered to deposit a letter of credit from a national bank with the City by October 15, 1985. Virgil Jahnke had represented that he was assured a letter of credit from the U.S. National Bank of Oregon. The Bank, however, claims no knowledge of any such promise from them to him and no credit was extended by them to him.

On September 25, 1986, the City filed a petition alleging Valley Unit had failed to comply with the September 1985 order and calling for punishment for contempt of court against Virgil Jahnke, principal shareholder and director of Valley Unit. Specifically, the City alleged that Valley Unit had failed to provide the letter of credit and had failed to pay certain assessments delineated in the court’s order of settlement. This petition was supported by an affidavit. At a subsequent hearing, Jahnke was found in contempt for not producing certain financial records pursuant to an unrelated subpoena duces tecum and was sentenced to 48 hours in the Gallatin County Detention Center. This citation is not being challenged. No action was taken on the allegations in the City’s petition.

In late 1986, Valley Unit filed for a Chapter 11 bankruptcy which automatically stayed the contempt proceeding. The City filed a motion to show cause November 24, 1986. The City renewed its motion for contempt in April, 1987. A hearing was held and by order dated February 8, 1988, Virgil Jahnke was found in contempt of the court’s order of settlement for failing to produce the letter of credit from a national bank. Jahnke was sentenced to five days in jail. Jahnke seeks review of this charge by way of a writ of certiorari.

With few exceptions, a contempt of court order can only be reviewed upon a writ of certiorari. Section 3-1-523, MCA. There are three requisites that must be satisfied before a writ of certiorari may be issued: 1) the inferior court lacked or exceeded its jurisdiction; 2) a right to appeal from the disputed order does not exist; and, 3) there lacks any other plain, speedy and adequate remedy. Section 27-25-102, MCA. State v. McAllister (Mont. 1985), [218 Mont. 196,] 708 P.2d 239, 241, 42 St.Rep. 1515, 1517. All three of these requirements must be met. Failure to meet any one requires this Court to deny the petition.

A judgment of contempt is final and conclusive. Since the only review available for a contempt proceeding is, by statute, through a writ of certiorari, the second and third requirements of Section 27-25-102, MCA are fulfilled. We limit our inquiry, then, to determining whether the District Court lacked or exceeded its jurisdiction when it issued its February 8, 1988 order of contempt.

The thrust of appellant’s argument is that because the City’s motion to show cause was not accompanied by an affidavit as required by Section 3-1-512, MCA, the court could not obtain jurisdiction. The statute reads:

“When the contempt is not committed in the immediate view and presence of the court or judge at chambers, an affidavit of the facts constituting the contempt or a statement of the facts by the referees or arbitrators or other judicial officer shall be presented to the court or judge.”

The court initially obtained jurisdiction of the matter when the City filed its petition for contempt with an accompanying affidavit in full compliance with the statute. Implicit in appellant’s argument is the contention that the District Court somehow lost jurisdiction of the contempt matter after the City’s petition calling for contempt was initially filed. Although the Jahnkes filed for bankruptcy after the court had obtained jurisdiction, it is well settled that a bankruptcy proceeding does not divest a state court of jurisdiction over the matter; it only stays or suspends the proceedings. David v. Hooker, Ltd. (9th Cir. 1977), 560 F.2d 412, 418; In re Clowser (E.D. Va. 1984), 39 B.R. 883, 884; In re Related Asbestos Cases (N.D. Cal. 1982), 23 B.R. 523, 526. Neither does a party’s filing of a bankruptcy petition constitute a dismissal of the state court action. David, 560 F.2d at 418; Stewart v. A.G. Edwards & Sons, Inc. (D.S.C. 1987), 74 B.R. 26, 27.

The City’s petition for contempt had not yet been ruled on when the Jahnkes filed their petition for bankruptcy. The proceedings were then stayed. Approximately one week after the bankruptcy petition had been dismissed the City renewed its efforts in the contempt matter by filing a motion to show cause why Virgil Jahnke should not be held in contempt for failing to obey the court’s order. The basis of this motion was that Jahnke had still not produced a letter of credit as ordered by the District Court. This motion was not accompanied by an affidavit. The court, however, already had in its possession an affidavit concerning the contempt. The City’s motion did not inject into the suit any matters that were not already contained in its earlier petition. Another affidavit was unnecessary.

We hold that the District Court was within its jurisdiction.

The petition for writ of certiorari must be denied.

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


source: Caselaw Access Project

author: MR. JUSTICE WEBER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOEL GILPIN, Defendant and Appellant.
    No. 87-432.
    Submitted on Briefs March 11, 1988.
    Decided May 11, 1988.
    Rehearing Denied June 13, 1988.
    756 P.2d 445.

      Stephen C. Moses, Moses Law Firm, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., Helena, Patricia J. Schaeffer, Asst. Atty. Gen., Harold F. Hanser, County Attorney, Billings, Donna Heffington, Deputy County Atty., for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This matter is on appeal from the District Court of the Thirteenth Judicial District, Yellowstone County, wherein a jury found Joel Gilpin guilty of two counts of sexual assault. We affirm.

Mr. Gilpin presents eight issues for review:

1. Did the District Court commit reversible error by denying defendant’s motion for mistrial when the prosecution referred to certain statistics during voir dire?

2. Did the court err by admitting evidence of other crimes, wrongs, or acts?

3. Did the court err by denying defendant’s motion to compel psychiatric examination of the victims?

4. Did the court err by denying defendant’s motion to dismiss on grounds that the State failed to establish the element of “sexual contact”?

5. Did the court err by refusing three of defendant’s offered instructions?

6. Was the evidence sufficient to convict the defendant?

7. Did the court err by admitting, at the sentencing hearing, evidence of other acts?

8. Did the court err by sentencing defendant to two consecutive terms?

In the early evening hours of October 31, 1986, Halloween night, the defendant Joel Gilpin and a friend were at the home of a female co-worker. She had to work until later that evening so Mr. Gilpin and the other man were helping her three children get ready for Halloween trick-or-treating.

The woman’s 11 year old daughter testified that she and Mr. Gilpin were sitting on the downstairs couch and that no one else was in the room with them. She then testified as follows:

“Q. And what happened first?
“A. Well I was leaning over to get something, I think it was a blanket and then I felt his hand like on my back butt.
“Q. On your back butt, where would that be?
“A. My cheek.
“Q. Okay. And what was his hand doing?
“A. Oh, was kind of like rubbing.
“Q. What happened next?
“A. Well then I sat back down and his hand was still there, he was like squeezing.
“Q. Was his hand on the side of your butt then when you sat back down?
“A. No, I was sitting on his hand like.
“Q. So his hand was underneath your butt?
“A. Yes.
“Q. And what was he doing with his hand?
“A. He was like squeezing.
“Q. Squeezing what?
“A. My butt.
“Q. How did that make you feel?
“A. It felt weird.
“Q. What did you do?
“A. Well I couldn’t really do anything because then he picked me up and put me on his lap.
“Q. And when he put you on his lap, what did he do?
“A. Well he had one hand on my butt and then one hand between my legs.
“Q. Where between your legs, . . .?
“A. On my inner thigh.
“Q. How far up or down on your inner thigh?
“A. Well about five inches away from my vagina.
“Q. Okay. What was he doing with his hand when he had his hand on your inner thigh?
“A. He was rubbing and then he kind of like moved up.
“Q. Toward your vagina?
“A. Yeah.
“Q. How did you feel about that?
“A. It felt weird.
“Q. What did you do, ... ?
“A. I got up and I went upstairs because someone called me or else the doorbell rang.
“Q. When you were upstairs will you tell the jury what happened.
“A. Well I was, I went and I just shut the door ‘cause they were trick or treating and I don’t know if anybody else was upstairs and then Joel came up from behind me and he like started at my waist and started coming up towards my breasts and he was saying stuff like he hardly ever gets to see me, and things.
“Q. All right. And you said he was moving his hands up?
“A. Uh huh.
“Q. How far up did he move them?
“A. Right under my breasts.
“Q. What did you do?
“A. Well I stepped on his toe and I left.
“Q. Did you make any effort to push his hands down?
“A. Yeah, I did, then he kept moving back up.
“Q. And that’s when you stepped on his toe?
“A. Yes.
“Q. And did you do it purposely or was it an accident?
“A. Purposely.
“Q. And why did you step on his toe?
“A. So I could get away.”

The 11 year old testified that, after getting away, she went downstairs again, sat down, and began whiting her shoes. She said that Mr. Gilpin came downstairs and went into the bathroom.

The girl’s 12 year old sister testified that she had dressed in her costume, had put on her makeup, and was standing in front of the bathroom mirror when Mr. Gilpin came in and stood in the doorway. She testified that Mr. Gilpin asked her what she was going to be for Halloween. She testified, in part, as follows:

“Q. Did you answer him?
“A. Yes.
“Q. What did you tell him?
“A. A prostitute or hooker or whatever.
“Q. Did he respond to that in any way?
“A. Yes.
“Q. What did he do?
“A. He said he wishes he could be my first customer.
“Q. Did he say that from the doorway where he was standing?
“A. Yeah, and I think he kinda walked towards me.
“Q. Where did he stand?
“A. Behind me.
“Q. Several feet behind you?
“A. No.
“Q. How close behind you?
“A. So I could feel him.
“Q. Did he say anything to you when he came and stood behind you?
“A. He just kept repeating, ‘I wish I could be your first customer’.
“Q. Did you say anything back about that?
“A. No.
“Q. Now when he stood behind you so that you could feel him saying he would like to be your first customer, do you know what he was doing with his arms?
“A. Yes, he put them under my arms.
“Q. Where were his hands?
“A. On my breasts.
“Q. What was he doing with his hands?
“A. He was rubbing like.
“Q. Now you were wearing your sweater at that time, right?
“A. Yeah.
“Q. When Joel did these things to you, . . ., what did you do?
“A. I tried to wiggle away.
“Q. You tried to wiggle away?
“A. Yes.
“Q. Were you able to wiggle away?
“A. Yeah.
“Q. Okay. Did you then leave the bathroom?
“A. I tried to.
“Q. What happened?
“A. He grabbed my arm.
“Q. Where did he grab you?
“A. On the wrist.
“Q. And what did he do?
“A. He just was saying no, no.
“Q. Okay. Did he just let you stay out there at the end of his arm?
“A. No, he kind of pulled me back again.
“Q. What did you do then?
“A. I told him that I thought I heard the doorbell ring.”

She testified that during this time she was yelling, “help . . . help me,” to her 11 year old sister. Her sister heard the yelling but thought she was “joking around.” Mr. Gilpin, however, let the 12 year old go when she said she heard the doorbell ring. She said she and her sister ran upstairs and “decided we would stick together the whole night.” She explained, “We decided that so he wouldn’t try anything on us, together we thought maybe he couldn’t do anything when we were together.”

Neither of the girls told anyone about these incidents that night. A week or so later, the 11 year old wrote a note to her mother, explaining the problems the girls had been having with Mr. Gilpin. She specifically described the bathroom incident between her older sister and Mr. Gilpin.

After receiving the note and discussing the matter with the girls, the mother eventually talked with a detective from the Billings Police Department. The mother and two girls each gave statements to the detective concerning the incidents. The girls also received counseling from a psychotherapist. The 11 year old saw the therapist twice, and the 12 year old saw her five or six times. The therapist was not called to testify at trial by either party.

Mr. Gilpin denied all of these allegations. At the conclusion of trial, the jury returned a verdict of guilty on both counts of sexual assault, Section 45-5-502, MCA. The District Court sentenced Mr. Gilpin to a term of four years imprisonment on each count, to be served consecutively.

I

Did the District Court commit reversible error by denying defendant’s motion for mistrial when the prosecution referred to certain statistics during voir dire?

During voir dire, the deputy county attorney referred to a statistical probability that one in every five men and one in every three women have been molested before the age of eighteen. The defense objected that this was an offer of testimony. The court informed the prospective jurors that this was neither testimony nor evidence to be considered by them. The prosecution then asked if any of the potential jurors or people close to them had been victims of sexual abuse. At this point defense counsel moved the court to declare a mistrial. The court denied the motion.

The defense argues that the prosecution was attempting in voir dire to personalize information in the form of statistics for which there was never any testimony at trial. He claims the information tainted the entire jury panel. Mr. Gilpin does not present any evidence to support this allegation of prejudice.

The appellant must show by clear and convincing evidence, practically free from doubt, that the trial court’s ruling on a motion for mistrial was erroneous. State v. Murray (Mont. 1987), [228 Mont. 125,] 741 P.2d 759, 762, 44 St.Rep. 1394, 1397. Although we are not convinced that the prosecutor’s statements were either necessary or appropriate, we conclude that any taint created by those statements was remedied by the court’s admonishment to the jury that the statements were not evidence and that only sworn testimony and tangible evidence could be considered. We hold that the record does not contain clear and convincing evidence that the trial court’s ruling was erroneous.

II

Did the court err by admitting evidence of other crimes, wrongs, or acts?

Mr. Gilpin objects to certain testimony of the two victims which included descriptions of other prior incidents between himself and the victims. He argues that these acts are inadmissible as other crimes, wrongs, or acts under Montana law. This Court outlined the proper test for admissibility of other crimes or acts in State v. Stroud (Mont. 1984), [210 Mont. 58,] 683 P.2d 459, 465, 41 St.Rep. 919, 924-25:

“Rule 404(b) provides that:
“ ‘[e]vidence 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 therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.’
“Admissibility is also governed by specific substantive and procedural rules. The four substantive requirements are (1) similarity between the crime charged and the previous crimes, wrongs or acts; (2) nearness in time between the charged crime and the previous crimes, wrongs or acts; (3) tendency to establish a common scheme, plan or system; and (4) determination that the probative value of the evidence is not substantially outweighed by the prejudice to the defendant. [State v.] Jensen, supra, 153 Mont. [233] at 239, 455 P.2d: at [631] 634 [(1969)] and Rule 403, Mont.R.Evid. In addition, three procedural guidelines must be followed: (1) notice to the defendant prior to trial that evidence of other crimes, wrongs or acts will be introduced; (2) an admonition by the judge to the jury when the evidence is introduced that it is admitted solely for one or more of the accepted purposes stated in Rule 404(b); and (3) a cautionary jury instruction to the same effect, providing in unequivocal terms that the evidence is admitted for the purpose earlier stated and not to try and convict the defendant for prior wrongful conduct. [State v.] Just, supra, 184 Mont. [262] at 274, 602 P.2d at [957] 963-64.”

a.Similarity between crime charged and previous acts

The prior acts contained in the State’s notice consisted of the following:

“(a) In spring of 1986 . . . when [the 11 year old] was sitting on the defendant’s lap during a game of Trivial Pursuit, he put his hand on her thigh, moved his hand to her inner thigh, and began rubbing upward on her inner thigh.
“(b) During the summer of 1986 . . . defendant put his arms around [the 12 year old], and hugged her tight for a long time, while telling her to call him if she ever needed to talk, and held her so tight she could feel his penis against her.”

Mr. Gilpin, in his brief, concedes that the incidents involving the 11 year old were similar. He contends that the incidents involving the 12 year old had “absolutely no similarity.” Concerning the 12 year old girl, Mr. Gilpin was charged with standing very close behind her and rubbing her breasts. It is not necessary that the prior acts and the charged offense be identical. State v. Tecca (Mont. 1986), [220 Mont. 68,] 714 P.2d 136, 138, 43 St.Rep. 264, 267. We conclude that the other acts were sufficiently similar to the charged offense to justify admission of the evidence. State v. Long (Mont. 1986), [223 Mont. 502,] 726 P.2d 1364, 1367, 43 St.Rep. 1948, 1951.

b.Nearness in Time

Mr. Gilpin concedes that the incidents were near in time,

c.Tendency to establish a common scheme, plan, or system

The evidence of other acts in this case appears consistent with the crime charged and suggests the defendant’s desire to gratify his sexual desires by fondling the girls at different times. What Mr. Gilpin contends on appeal is that the State, by dropping the language “continuing course of conduct” from the information, somehow agreed that these incidents did not constitute a common scheme, plan, or system. As the District Court noted when the information was amended, “continuing course of conduct” was not an element of the crime charged and properly was dropped as surplusage. We conclude that amendment of the information in this way did not estop the State from presenting evidence of other acts tending to show a common scheme, plan, or system.

d. Probative value versus prejudicial effect

Mr. Gilpin contends that the other acts involved could have sexual connotations or could as easily be viewed as common experiences of life. He argues that Rule 404(3)(b), M.R.Evid., requires that only acts which have been proven to be wrongful or criminal may be admitted, not acts which may be ambiguous. Evidently he is arguing that to be probative enough to substantially outweigh prejudice, an act must be criminal in nature. He cites no authority for this position, and we find no support for it in the rule itself. Evidence otherwise inadmissible under the rule may be admitted for the limited purpose of helping to establish motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The District Court ruled that the evidence was admissible for this purpose, and we see no clear error in that decision. The defense had the opportunity to cross-examine these witnesses, and the jury then had this testimony to weigh in its determination. The evidence tended to corroborate the children’s allegations and was probative of absence of mistake or accident. We conclude that the prejudicial effect of the evidence does not outweigh its probative value.

e. Notice

Mr. Gilpin argues that the State did not give proper notice, as required by Just, that evidence of other crimes, wrongs, or acts would be introduced. Defense counsel did not receive notice until May 26, the day before trial. The defense filed a motion in limine to exclude the evidence of other acts at trial and objected to the notice as untimely. We stated in State v. Case (Mont. 1980), [190 Mont. 450,] 621 P.2d 1066, 1071, 37 St.Rep. 2057, 2063, and again in Murray, 741 P.2d at 764, that “the State must provide written notice to the defendant, before the case is called for trial . . .” (Emphasis added). This simply means that notice must be given before the trial has actually begun. State v. Johnson (1978), 179 Mont. 61, 70, 585 P.2d 1328, 1333. We hold that the State’s notice was timely.

f. Admonition

Mr. Gilpin takes issue with the court’s admonition to the jury concerning the evidence of other acts. He contends that the result of the court’s admonition is that the jury received the court’s opinion that the otherwise innocent acts were in fact wrongful or criminal. The court admonished the jury as follows:

“Ladies and gentlemen of the jury, evidence may be introduced during the course of this trial that may show that defendant may have committed other acts at other times which might be seen as wrong. By other acts at other times I mean other than the ones for which he is on trial. You may not consider any such evidence to prove that the defendant is a person of bad character, or that he has a disposition to commit crimes or that he committed the crime of which he now stands accused. You may only consider this evidence for the limited purposes of providing a characteristic method, plan or scheme that may have been used in the commission of the offense in this case. You may also consider this evidence to prove existence of intent, in other words, acting knowingly, which is an element of the crime charged. You may not consider this evidence for any other purpose as to do so might expose the defendant to unjust and double punishment.”

In Just, 602 P.2d at 964, we explained what procedures must be followed with regard to admonition and instructions to the jury:

“(b) At the time of the introduction of such evidence, the trial court shall explain to the jury the purpose of such evidence and shall admonish it to weigh the evidence only for such purposes.
“(c) In its final charge, the court should instruct the jury in unequivocal terms that such evidence was received only for the limited purposes earlier stated and that the defendant is not being tried and may not be convicted for any offense except that charged, warning them that to convict for other offenses may result in unjust double punishment.”

We conclude that the trial court properly admonished and instructed the jury on this point. We hold that the District Court properly admitted this evidence of other crimes, wrongs, or acts.

Ill

Did the court err by denying defendant’s motion to compel psychiatric examination of the victims?

Mr. Gilpin argues that no physical or psychological evidence existed in this case to corroborate the girls’ testimony. He says that had the court granted his motion to compel psychiatric examination of the victims, he might have been able to show they did not suffer from post-trauma syndrome. He then urges, “If the child does not have the trauma, then the event did not occur.” This argument merits little discussion. While we have held that expert testimony is “admissible for the purpose of helping the jury to assess the credibility of a child sexual assault victim,” State v. Geyman (Mont. 1986), [224 Mont. 194,] 729 P.2d 475, 479, 43 St.Rep. 2125, 2131, we have not by any means held that expert testimony is necessary or required. The prosecution is not required to prove psychological trauma, and the absence of evidence of psychological trauma logically does not prove that the offense did not occur. The defendant cannot force psychological evaluation of a child victim of sexual assault. As stated by this Court in State v. Liddell (Mont. 1984), [211 Mont. 180,] 685 P.2d 918, 924, 41 St.Rep. 1293, 1300:

“There is no legal authority for such a procedure. Rule 35(a), M.R.Civ.P., allows for a mental or physical examination by a physician when the mental or physical condition of a party is in controversy. The victim in this matter is a witness, not a party to this action.”

We hold that the District Court did not abuse its discretion by denying defendant’s motion to compel psychiatric examination of the victims.

IV

Did the court err by denying defendant’s motion to dismiss on grounds that the State failed to establish the element of “sexual contact”?

Mr. Gilpin contends that the State failed to prove beyond a reasonable doubt that he subjected the girls to any “sexual contact”. That term is defined at Section 45-2-101(60):

“ ‘Sexual contact’ means any touching of the sexual or other intimate parts of the person of another for the purpose of arousing or gratifying the sexual desire of either party.”

Thus, the defendant must (1) touch the sexual or other intimate parts of the girls, (2) for the purpose of arousing or gratifying his or the girls’ sexual desires. He argues that the State failed in its proof of both elements. The standard of review for sufficiency of the evidence was first stated in Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573; and restated in State v. Geyman (Mont. 1986), [224 Mont. 194,] 729 P.2d 475, 476, 43 St.Rep. 2125, 2126.

“[T]he relevant question 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.”

As to the 12 year old victim, we conclude that the test set forth in Geyman is satisfied. A rational trier of fact could have concluded that Mr. Gilpin rubbed the girl’s breasts for the purpose of arousing or gratifying his sexual desires.

As to the 11 year old victim, Mr. Gilpin argues that he did not touch an intimate part of her body. The evidence was that he had rubbed and squeezed her buttocks with his hand. He then placed her on his lap, and, with one hand still on her buttocks, he began rubbing her inner thigh while moving his hand toward her vagina. Then, upstairs, he placed his hands at her waist and began to move his hands up until they were under her breasts. She then stepped on his toe and ran downstairs.

In State v. Weese (1980), 189 Mont. 464, 616 P.2d 371, the defendant pulled a 9 year old girl “onto his lap, pulled up her shirt and began rubbing her belly and chest but did not make contact with her nipples. He then offered her a dollar if she would allow him to continue. This Court construed that conduct as prohibited sexual contact should the jury determine defendant had the purpose to gratify his sexual desires. Weese, 616 P.2d at 374. This Court discussed the purpose of the statute:

“Use of the terms ‘sexual or other intimate parts’ indicates that the legislature did not intend to restrict the crime to a touching of the genitalia of either sex or a touching of a female’s breast, but instead intended to give the terms a broader application. In keeping with the focus of sexual assault statutes on the outrage, disgust or shame engendered in the victim, other courts have held that the term ‘intimate parts’ in such statutes include the buttocks . . . the hips . . . and the prepubescent chest of a 7-year old girl. . .” (omitting citations).

Weese 616 P.2d at 374. We conclude that Mr. Gilpin’s conduct here fits within the type of contact prohibited by the legislature. We are not convinced by Mr. Gilpin’s suggestion that he must touch the girl under her clothing before sexual contact can occur. Nothing in the statute suggests such a restricted reading. Mr. Gilpin further argues that no evidence exists to establish that he had the purpose of arousing or gratifying his sexual desires. We conclude that a rational trier of fact could infer the requisite intent from Mr. Gilpin’s conduct. State v. Kestner (Mont. 1986), [220 Mont. 41,] 713 P.2d 537, 540, 43 St.Rep. 155, 159. We hold that the District Court properly denied Mr. Gilpin’s motions to dismiss.

V

Did the court err by refusing three of defendant’s offered instructions?

Mr. Gilpin argues that the court erred by failing to give three of his offered instructions. Offered instruction No. 5 stated that defendant cannot be convicted on conjecture, suspicion, or probability. He bases this instruction upon State v. Keckonen (1938), 107 Mont. 253, 84 P.2d 341. We distinguish that case from the present case because Keckonen relied upon a statute providing that conviction cannot be had on uncorroborated testimony of an accomplice. Further, the defendant’s concerns on this point were covered by the District Court’s instruction No. 1, stated in pertinent part,

“The law forbids you to be governed by mere sentiment, conjecture, sympathy, passion, prejudice, public opinion or public feeling.” Defendant’s offered instruction No. 5 also defined “reasonable doubt”. We conclude that instruction No. 8, given by the court, covered this element.

Offered instruction No. 10 tells the jury that there must be a joint action of act and mental state. We conclude that the elements of the offense were stated and covered in the given instructions which properly instructed that Mr. Gilpin must be found, without a reasonable doubt, to have acted with the requisite mental state.

Offered instruction No. 19 was an attempt to inform the jury that the mental state of the victims does not establish the mental state of the defendant, that the mental state of defendant must be proved beyond a reasonable doubt. We conclude that other instructions given by the court properly stated the law as to mental state. We hold that the given instructions as a whole properly tendered the case to the jury. State v. Bingham (Mont. 1987), [229 Mont. 101,] 745 P.2d 342, 349, 44 St.Rep. 1813, 1820-21. We therefore affirm the District Court’s refusal of defendant’s offered instructions.

VI

Was the evidence sufficient to convict the defendant?

We have already set forth the standard of review for sufficiency of the evidence in a criminal case, under Issue IV. We concluded that any rational trier of fact could have found the essential element of “sexual contact”. Section 45-5-502(1), MCA, also requires the State to prove the defendant “knowingly” subjected the girls to sexual contact. Mr. Gilpin’s argument is that the State produced no evidence to corroborate the girls’ testimony, and therefore could not prove its case beyond a reasonable doubt. This Court, in Just, 602 P.2d at 962, stated the rule in Montana:

“[I]n sex offense cases in Montana, the victim’s testimony does not need to be corroborated. State v. Metcalf (1969), 153 Mont. 369, 378, 457 P.2d 453, 458; State v. Gaimos, 53 Mont. [118] at 126, 162 P. [596] at 599.”

This rule applies to testimony of a child victim as well. State v. Howie (Mont. 1987), [228 Mont. 497,] 744 P.2d 156, 159, 44 St.Rep. 1711, 1716. At trial the girls testified concerning Mr. Gilpin’s conduct. Through this and other testimony, the jury was asked to determine whether Mr. Gilpin knowingly subjected the girls to sexual contact. He claims that it is his testimony against the girls’ testimony. The court gave instruction No. 7 to the jury at Mr. Gilpin’s request. It read as follows:

“As a matter of law, where two witnesses testify directly opposite to each other on a material point and are the only ones that testify on that same point, you are not bound to consider the evidence evenly balanced or the point not proved; you may regard all the surrounding facts and circumstances proved on the trial and give credence to one witness over the other if you think the facts and circumstances warrant it.”

After review of the record, including the trial transcript, we hold that a rational trier of fact could have found that Mr. Gilpin knowingly subjected the girls to sexual contact.

VII

Did the court err by admitting, at the sentencing hearing, evidence of other acts?

Mr. Gilpin objects to two letters contained in the sentencing file. One letter was written by a boy who claimed his friend was molested by Mr. Gilpin while in a swimming pool. The other letter was written by the boy’s mother. Mr. Gilpin objects because he had no opportunity to cross-examine these witnesses. In Williams v. New York (1949), 337 U.S. 241, 250, 69 S.Ct. 1079, 1084, 93 L.Ed. 1337, 1343-44, the United States Supreme Court discussed this concern:

“We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentences would be unavailable if information were restricted to that given in open court by witnesses subject to cross-examination. And the modern probation report draws on information concerning every aspect of a defendant’s life.”

As the State points out, the defendant had an opportunity to rebut, deny, or explain this incident, thus his due process right was not violated. See State v. Orsborn (1976), 170 Mont. 480, 555 P.2d 509.

“[T]he right of cross-examination at a presentence hearing is a discretionary matter of the trial court and will not be overruled without a showing of abuse of that discretion.”

State v. Trangsrud (1982), 200 Mont. 303, 307, 651 P.2d 37, 39; see also Section 46-18-113(1), MCA.

Mr. Gilpin also objects to testimony at the hearing by a 13 year old girl who reported an incident involving him. He claims that although he had the opportunity to cross-examine the witness, he had no opportunity to prepare. We note, however, that Mr. Gilpin did not request a continuance to allow for preparation, although at the sentencing hearing, the court offered defense counsel that opportunity. Mr. Gilpin failed to request a continuance, and we will not review the matter now as it is raised for the first time on appeal. Trangsrud, 651 P.2d at 40. We hold that the District Court did not err by admitting the evidence.

VIII

Did the court err by sentencing defendant to two consecutive terms?

Lastly, Mr. Gilpin asserts that the alleged incidents arose out of the same transaction or event; hence, he should not be subjected to consecutive terms. Our review of the District Court’s Judgment and Commitment shows that the court properly considered the factors listed in Section 46-18-101(3), MCA. We also note that the sentence imposed falls within the legal limits under Section 45-5-502(3), MCA. Therefore, we hold that the District Court did not abuse its discretion in sentencing. State v. Almanza (Mont. 1987), [229 Mont. 383,] 746 P.2d 1089, 1091, 44 St.Rep. 2064, 2067.

Affirmed.

MR. JUSTICES HARRISON, GULBRANDSON, HUNT and Mc-DONOUGH concur.


author: MR. JUSTICE GULBRANDSON

text:
    DONALD C. COLLINS, Plaintiff and Respondent, v. STATE OF MONTANA, DEPARTMENT OF JUSTICE, DIVISION OF HIGHWAY PATROL and Clyde Lindell, Individually, Defendants and Appellants.
    No. 87-339.
    Submitted on Briefs March 18, 1988.
    Decided May 12, 1988.
    755 P.2d 1373.

      Mike Greely, Atty. Gen., Helena, Kimberly A. Kradolfer, Asst. Atty. Gen., John H. Maynard, Helena, for defendants and appellants.
    James A. Manley, Manley, Smith & Dupuis, Poison; for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The State of Montana (the State) and Clyde Lindell (Officer Lin-dell) appeal an order of summary judgment made by the Lake County District Court in favor of Donald C. Collins (Collins). The District Court awarded partial summary judgment to Collins on the issues of the defendants’ liability for assault and battery and violation of Collins’ United States and Montana constitutional rights. We reverse and remand with instructions to enter summary judgment in defendants’ favor.

On November 29, 1984, Officer Lindell of the Montana Highway Patrol observed a vehicle driven in an erratic manner near Pablo, Montana. Officer Lindell stopped the vehicle and found that Collins was the driver. Collins performed field sobriety tests for Officer Lin-dell and was subsequently arrested for driving under the influence of alcohol (DUI). Officer Lindell transported Collins to the Lake County Sheriff’s Office for DUI processing.

Collins was read Montana’s implied consent instructions at the sheriff’s office and was asked to submit to a breath test. Collins refused to submit to the breath test. Officer Lindell then learned from a Lake County jailer that Collins was on probation for a January 17, 1984, DUI offense and that a condition of the probation was that Collins not consume alcoholic beverages. After an unsuccessful attempt to contact Collins’ probation officer, Officer Lindell telephoned Lake County Attorney John Frederick (Frederick) to ask for advice.

Frederick, in his capacity as Lake County Attorney, was personally aware that Collins was under a one-year suspended sentence and probation for the January 17, 1984, DUI conviction. Frederick had also been present at Collins’ September 10, 1984, arraignment on another DUI charge and a charge of operating a motor vehicle while declared a habitual traffic offender. Frederick was aware that the conditions of Collins’ release were that Collins not drink alcoholic beverages or drive an automobile. Frederick directed Officer Lindell to obtain a telephonic search warrant from Justice of the Peace Charles M. Meyers (Meyers) to authorize the extraction of a blood sample from Collins. Officer Lindell telephoned Meyers and explained the situation. Rather than grant a telephonic search warrant, Meyers elected to meet with Officer Lindell at the Lake County jail.

In the presence of Officer Lindell, Meyers telephoned Frederick from the Lake County jail and was again informed of the basis for the search warrant. Thereafter, Meyers issued a handwritten search warrant to “authorize any qualified medical person to withdraw a blood sample” from Collins. Collins was then transported to St. Joseph’s hospital in Poison where a blood sample was withdrawn by a registered nurse. >

Collins subsequently pled guilty to a DUI, third offense, operating a motor vehicle while declared a habitual traffic offender, and driving without liability insurance in connection with the November 29, 1984 arrest. Collins also pled guilty to the charges stemming from his September 1984 DUI arrest. At the date of this appeal, Collins had been convicted of five DUI offenses and numerous other related offenses including driving while his license was revoked. Collins was sentenced to four consecutive years with three and one-half years suspended as a result of the November and September 1984 incidents. Ninety days of his sentence were served in the Lake County jail and the other ninety days were spent at an alcohol treatment center in Wyoming. Approximately nine days after his release from the alcohol treatment center, Collins again violated the terms of his probation by consuming alcohol in a bar.

On January 3, 1985, Collins filed this civil action against Officer Lindell in which he alleged assault and battery and violation of his constitutional rights. The State moved to intervene on the basis that Officer Lindell acted within the course and scope of his employment and that the State must indemnify him pursuant to Section 2-9-305, MCA. The State’s motion to intervene was granted on May 15,1986.

On May 28, 1986, Officer Lindell and the State moved for partial summary judgment on the issue of liability. In its opinion and order of September 2, 1986, the District Court concluded that the blood sample was unauthorized, contrary to Section 61-8-402(3), MCA, and was outside the course and scope of Officer Lindell’s employment. The District Court granted summary judgment to Collins and Officer Lindell and the State appeal. Appellants Lindell and the State raise the following issues on appeal:

1. Did the District Court err when it concluded that Officer Lindell was acting outside the course and scope of his employment?

2. Is Officer Lindell entitled to summary judgment based on the undisputed facts of this case?

3. Is the State entitled to summary judgment based on the undisputed facts of this case?

Collins raises the following additional issue:

4. Did Officer Lindell and the State waive appellate review, and should this Court decline appellate review, because they entered into a stipulation for entry of judgment?

Before addressing the merits of this appeal, we must first dispose of Collins’ issue regarding waiver of appellate review. Collins contends that appellants have somehow waived their right to appellate review by agreeing to an entry of judgment for nominal damages before first appealing the summary judgment. Collins does not cite any relevant legal authority and we find no merit to his argument.

The facts material to this appeal are not in dispute; Accordingly, we will review the District Court’s legal analysis and are free to draw our own conclusions. Schneider v. Leaphart (Mont. 1987), [228 Mont. 483,] 743 P.2d 613, 616, 44 St.Rep. 1699, 1703. In its opinion and order, the District Court first concluded that Officer Lindell acted outside the course and scope of his employment when he sought a blood sample after Collins refused to submit to a breath test. The District Court’s conclusion in this regard was based on Section 61-8-402(3), MCA, which provides as follows in pertinent part:

“If a resident driver under arrest refuses upon request of a peace officer to submit to a chemical test designated by the arresting officer as provided in subsection (1) of this section, none shall be given

The District Court reasoned that Officer Lindell was no longer acting within the course and scope of his employment when he persisted in procuring a blood sample from Collins. In their first issue, appellants contend that the District Court erred when it concluded that Officer Lindell acted outside the course and scope of his employment.

Appellants’ rely on this Court’s decision in State v. Thompson (1984), 207 Mont. 433, 674 P.2d 1094, for the proposition that, in an arrest for DUI, a refusal to submit to a chemical test pursuant to Section 61-8-402, MCA, does not always preclude the seizure of a blood sample. In Thompson this Court held that the implied consent statute, Section 61-8-402, MCA, does not apply to negligent homicide prosecutions. The defendant, Thompson, was involved in an automobile accident and was arrested for DUI. A Montana Highway Patrol (MHP) officer requested that Thompson submit to a blood test. Thompson refused to submit to the test. The MHP officer later learned from the Missoula County Attorney’s office that a woman had died from injuries sustained in the automobile accident and that Thompson was now suspected of negligent homicide. A blood sample was subsequently taken over Thompson’s objection and was used to convict him of negligent homicide. Thompson appealed to this Court and contended that the evidence of his blood alcohol content was drawn against his will in violation of the implied consent law. We reviewed the legislative intent of Section 61-8-402, MCA, and concluded that application of the implied consent law to negligent homicide cases to preclude chemical tests was not within the intent of the legislature. Thompson, 674 P.2d at 1096-97. We reach a similar conclusion in this case.

Section 61-8-402, MCA, does not apply to the facts of this case to preclude the taking of a blood sample pursuant to a search warrant. It is clear that Officer Lindell acted as he did in this case in order to preserve evidence relative to Collins’ violation of the terms of his probation and other non-DUI offenses. That such conduct in this case is within the course and scope of Officer Lindell’s employment cannot be questioned. Accordingly, we hold that the District Court erred when it determined that Officer Lindell acted outside the course and scope of his employment.

Appellants concede that evidence of blood alcohol content obtained through the use of a blood sample taken over a defendant’s objection would not be properly admissible in most DUI prosecutions. In this case, Collins pled guilty to the DUI charge thereby negating any issue of the admissibility of evidence of his blood alcohol content. Where, as is the case here, law enforcement authorities have probable cause to believe that an offense other than the underlying DUI has occurred for which a blood test is required to preserve evidence, a blood sample may be taken pursuant to a search warrant. In Thompson, law enforcement officials were aware that an individual died from injuries sustained in the automobile accident. Consequently, there was probable cause to believe that Thompson had committed negligent homicide. In Thompson, the possible negligent homicide charge provided the basis for a blood test. Similarly, Collins’ violation of the terms of his probation provided the basis for the blood test in this case. Obviously, not all non-DUI offenses can be used to justify a blood sample taken without consent. For example, a violation of Montana’s mandatory seat belt law coupled with a DUI would not normally justify the taking of a blood sample without consent.

In their second and third issues, appellants contend that because Officer Lindell’s actions were in the course and scope of his employment, he and the State are entitled to immunity under several legal theories. However, the immunity arguments need not be addressed because there are no genuine issues of material fact suggesting that Officer Lindell committed an assault and battery or an unauthorized invasion of Collins’ privacy.

Collins contends that it does not matter whether Officer Lin-dell’s actions were in the course and scope of his employment because Lindell’s actions were unauthorized and contrary to Section 61-8-402, MCA. The taking of a blood sample over his objection, Collins argues, was both an assault and battery and an invasion of his privacy rights. However, as noted above in our discussion of Thompson, Section 61-8-402, MCA, does not apply to proscribe the taking of a blood sample in this case. Moreover, Officer Lindell’s actions were authorized by the Montana statutes regarding search warrants.

Section 46-5-203, MCA, provides in pertinent part as follows:

“A search warrant may authorize the seizure of the following:
“(2) any instruments, articles, or things which . . . may constitute evidence of any offense.; tt 99

In addition, Section 46-5-208, MCA, provides that “[a]ll necessary and reasonable force may be used to execute a search warrant. . .” Collins contends that the search warrant in this case was illegal for two reasons. First, Collins reiterates his position that a blood sample could not be taken without his consent. Again, his position in this regard is without merit under the circumstances of this case. Second, Collins points out that Officer Lindell and Justice of the Peace Meyers did not follow the statutory procedures for telephonic search warrants as set forth in Section 46-5-202, MCA. These procedural defects, Collins contends, render the search warrant void ab initio. Appellants concede that the proper procedures were not followed, but argue that the search warrant is valid on its face and is merely voidable, not void.

We agree with the appellants. The procedural defects in obtaining the search warrant do not render it void in this case. Although the application for this particular search warrant was neither entirely written nor entirely telephonic as described in Section 46-5-202, MCA, sufficient grounds for issuance of the search warrant were communicated to Justice of the Peace Meyers. Furthermore, Collins does not contend that Meyers was without jurisdiction to issue the search warrant. While Collins does allege that the search warrant is irregular on its face, he does not support this allegation with any genuine issues of material fact.

Appellants claim the search warrant sufficiently complies with Section 46-5-201, MCA, to be valid on its face. We agree. As’pointed out by the appellants, a “ [ministerial officer is justified in the execution of and must execute all process and orders regular on their face and issued by competent authority, whatever may be the defect in the proceedings upon which they were issued.” Harri v. Issac (1940), 111 Mont. 152, 157, 107 P.2d 137, 140. In this case, Officer Lindell was justified, authorized, and was in fact compelled to obey the search warrant and direct the registered nurse to take Collins’ blood sample.

Collins is also incorrect in his position that Officer Lindell’s actions constituted an assault and battery. The rules regarding assault and battery are summarized as follows by the Restatement (Second) of Torts (1965), Section 13 and Section 21 respectively:

“Section 13. Battery: Harmful Contact
“An actor is subject to liability to another for battery if
“(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
“(b) a harmful contact with the person of the other directly or indirectly results.
“Section 21. Assault
“(1) An actor is subject to liability to another for assault if
“(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
“(c) the other is thereby put in such imminent apprehension.” Collins submits “that there is no question that causing another person’s body to bleed is a harmful or offensive physical contact.” However, even if the taking of a blood sample constituted an assault and battery, which it does not in this case, such action by Officer Lindell is privileged under the circumstances presented. Collins overlooks Section 145 of the Restatement (Second) of Torts (1965) which provides that “[o]ne serving a process or executing an order of a court or other public authority is privileged, if such order is valid or fair on its face, to use such force against the person of another ... as is authorized by the order or is reasonably necessary for the service of the process or the execution of the order.” See also Section 46-5-208, MCA, (all reasonable and necessary force may be used to execute a search warrant.) The search warrant in question was valid on its face and particularly authorized that a blood sample be taken from Collins. Had there been a “harmful” or “offensive” contact, such contact would have been privileged in this instance.

We do not believe that the taking of a blood sample by trained medical personnel is either harmful or offensive given the present state of medical technology and blood testing techniques. Millions of Americans submit to blood sampling every day without ill effect. Collins testified that he experienced no pain from having the blood sample taken and testified only that he was embarrassed that the blood sample had to be taken over his objection. Collins’ embarrassment is insufficient to support his assault and battery claim.

The United States Supreme Court reached a similar conclusion thirty-one years ago in the context of a constitutional due process argument. In Breithaupt v. Abram (1957), 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 408, Breithaupt was involved in an automobile accident in which three persons were killed. Breithaupt was unconscious at the hospital when a New Mexico State Patrolman asked that a blood sample be taken. The chemical analysis of the blood sample was later used as evidence to convict Breithaupt of involuntary manslaughter.

On appeal to the United States Supreme Court, Breithaupt argued that his conviction, based on the chemical analysis of a blood sample taken without his consent, violated his due process rights under the Fourteenth Amendment to the United States Constitution. Breithaupt relied on Rochin v. California (1952), 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183, to assert that an involuntary blood test is similar to the forced stomach pump present in Rochin in that both acts “shock the conscience” and are so “brutal” and “offensive” as to be violative of a person’s due process rights. Breithaupt, 352 U.S. at 435, 77 S.Ct. at 410. The United States Supreme Court disagreed with Breithaupt and stated the following:

“[T]here is nothing ‘brutal’ or ‘offensive’ in the taking of a sample of blood when done, as in this case, under the protective eye of a physician.
“[A] blood test taken by a skilled technician is not such ‘conduct that shocks the conscience,’. . . nor such a method of obtaining evidence that it offends a ‘sense of justice,’ . . .
“The test upheld here is not attacked on the ground of any basic deficiency or of injudicious application, but admittedly is a scientifically accurate method of detecting alcoholic content in the blood, thus furnishing an exact measure upon which to base a decision as to intoxication. Modern community living requires modern scientific methods of crime detection lest the public go unprotected. The increasing slaughter on our highways, most of which should be avoidable, now reaches the astounding figures only heard of on the battlefield
“[S]ince our criminal law is to no small extent justified by the assumption of deterrence, the individual’s right to immunity for such invasion of the body as is involved in a properly safeguarded blood test is far outweighed by the value of its deterrent effect due to public realization that the issue of driving while under the influence of alcohol can often by this method be taken out of the confusion of conflicting contentions.” (Citations omitted.)

352 U.S. at 436-37, 439-40, 77 S.Ct. at 412 (Cited with approval in State v. Haley (1957), 132 Mont. 366, 373-375, 318 P.2d 1084, 1087-88.) The reasoning and conclusion of Breithaupt as approved in Haley are persuasive in our determination that the blood test does not constitute an assault and battery under the particular circumstances of the case now before us.

Collins also contends that the blood test violated his right to privacy and cites to Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, for support. In Schmerber, a blood sample was taken from an injured motorist (Schmerber) by a physician at the direction of a California police officer. The chemical analysis of the blood sample was subsequently admitted as evidence in Schmerber’s DUI trial. Schmerber was convicted and his conviction was upheld by a California appellate court. Schmerber appealed to the United States Supreme Court and contended that the blood test violated his right not to be subjected to unreasonable searches and seizures. In its opinion, the United States Supreme Court recognized that the taking of blood samples by law enforcement officials without consent would, in limited circumstances, be prohibited by the personal privacy guarantees of the Fourth Amendment to the United States Constitution. However, Schmerber also specifically notes that the “Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions not justified in the circumstances, or which are made in an improper manner.” Schmerber, 384 U.S. at 768, 86 S.Ct. at 1834. The Schmerber Court went on to conclude that the taking of a blood sample without a search warrant was “an appropriate incident to [Schmerber’s DUI] arrest.” 384 U.S. at 771, 86 S.Ct. at 1836. Schmerber does not support Collins’ privacy argument because the blood sample in this case was justified in the circumstances and was taken in a proper manner.

Collins again premises his invasion of privacy argument on the mistaken belief that the blood test was unauthorized and contrary to Section 61-8-402, MCA. Collins also fails to make any significant invasion of privacy argument in his appellate brief. Possibly for that reason, appellants fail to address the privacy issue altogether. Though there has been no invasion of Collins’ privacy, we believe the privacy issue to be significant enough in terms of the public policy impact of this case as to merit at least a cursory analysis regardless of the parties’ failure to address the issue.

Montanans have mandated that “[t]he right of individual privacy is essential to the well-being of a free society and shall not be infringed without a showing of a compelling state interest.” Mont.Const. Article II, Section 10. This Court will continue to closely review cases such as the one now before us for evidence that this right of privacy has been infringed. That the State of Montana has a compelling interest in protecting its citizens from the ever-increasing threat of drunk drivers cannot be disputed. However, this appeal does not present us with a DUI case and the removal of drunk drivers from our highways is not the compelling state interest involved. Mr. Collins has been duly convicted and sentenced for his repeated violations of Montana’s DUI laws. We can only hope that Collins, and others like him, will cease to be a threat to our safety on and off the highway.

The particular compelling state interest served here is Montana’s enforcement of its criminal laws, other than DUI in this case, where such enforcement is for the protection and benefit of Montanans’ other fundamental rights. State ex rel. Zander v. District Court (1979), 180 Mont. 548, 556, 591 P.2d 656, 660. As we have previously noted, the blood test in this instance would not have been authorized without Collins’ consent had this been solely a DUI case. Section 61-8-402, MCA. In the instance of a non-DUI offense, an involuntary blood test supported by a search warrant issued with sufficient probable cause serves to protect the State’s interest in enforcing its criminal laws and, as such, is not a violation of a person’s right to privacy under the Montana Constitution. However, law enforcement officials should be cautioned that, given the proper circumstances, we will not hesitate to hold that a blood test taken without probable cause or exigent circumstances is unreasonable and an invasion of a person’s right to individual privacy. In addition, our holding today must not be interpreted by law enforcement officials to authorize carte blanche blood sampling of Montanans.

For all the foregoing reasons, we hold that the District Court erred in granting summary judgment to Collins and we reverse and remand with instructions to enter summary judgment in favor of Officer Lindell and the State of Montana.

Reversed and remanded with instructions.

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


author: MR. JUSTICE HARRISON

text:
    CHARLOTTE JOHNSON; Robert E. Johnson; O. Priscilla Johnson; T. Otto Johnson; Karla D. Johnson; Jacquelene J. Lambert; Everett E. Lambert, Plaintiffs and Respondents, v. The ESTATE OF WM. A. SHELTON Deceased; the Estate of Laura E. Shelton, Deceased; Allen B. Shelton; Allen B. Shelton, Trustee; the Estate of Allen B. Shelton, deceased; Ruth O. Shelton; Robert M. Graves; Vera Shelton Graves, a/k/a Vera L. Schnase; County Of Lewis and Clark, a political subdivision of the State of Montana; County Treasurer of Lewis and Clark County; Department of Revenue, an administrative agency of the State of Montana, and its Director, John LaFaver, et al., Defendants and Appellants.
    No. 87-272.
    Submitted on Briefs March 24, 1988.
    Decided May 17, 1988.
    754 P.2d 828.

      J. Brian Tierney, Butte, for defendants and appellants.
    Michael J. Rieley, Luxan and Murfitt, Helena, for plaintiffs and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

The plaintiff, Mrs. Charlotte Johnson, has brought an action in equity to quiet title to 320 acres of land located in Lewis and Clark County, near East Helena, Montana. The only defendant contesting the quiet title action is Mrs. Vera Shelton Graves, Mrs. Johnson’s first cousin, who asserts that the property is rightfully hers under the wills of William and Laura Shelton, the grandparents of both women as well as the adoptive parents of Mrs. Graves.

The Sheltons died in 1926 and 1927. This present dispute centers on their wills, which devise an undivided one-half interest in 320 acres of property in Lewis and Clark County, Montana, and 23 acres of property in Walla Walla County, Washington, to Allen B. Shelton, the son of the testators and uncle to the parties here. Allen B. Shelton was qualified and served as trustee under the will. The will directed that if Allen B. Shelton died without issue of his body, as he did in 1967, and Mrs. Graves survived him, the property of the trust would pass to Mrs. Graves. Subsequently, if Mrs. Graves also died without issue of her body, the will directed that the property of the trust would pass to the children of Alma Shelton Foster and C.U. Foster. Mrs. Johnson is the sole surviving child of Alma and C. U. Foster. The record reveals that Mrs. Graves is 71 years old, widowed, and has no living natural children, thus making it unlikely that she would have issue of her body at the time of her death. It is noted, however, that she adopted a 65-year-old man as her son in 1986.

Mrs. Graves argues to this Court that the second contingent limitation on the trust property, which would pass the property to Mrs. Johnson if Mrs. Graves dies without issue, is void under Section 70-15-205, MCA, vesting the trust property in Mrs. Graves. Mrs. Johnson, the plaintiff, argues that a contest over the construction of the Shelton wills is inappropriate 60 years after the Shelton deaths and also that Mrs. Graves’ rendering of a quitclaim deed on the Montana property is conclusive.

In 1976, Mrs. Graves decided to sell a piece of property called the “Snake River Property,” which Allen Shelton had acquired during his lifetime. However, before she could sell the property for $235,000 her attorney advised her to get the signatures of Mrs. Johnson and Mrs. Johnson’s brother, Allen Foster, since deceased, because they had a contingent interest in the Shelton estate. Mrs. Graves pocketed $150,000 from the sale, Mrs. Johnson and her brother received $42,500 each.

Mrs. Graves and Mrs. Johnson decided in 1977 to divide up the Shelton estate. Mrs. Johnson, who had been living near the Montana property, offered to Mrs. Graves a quitclaim deed on the 23 acres in Washington in consideration of “clear title.” Likewise, Mrs. Graves gave Mrs. Johnson a quitclaim deed on the 320 acres in Montana. Mrs. Johnson recorded that deed and has since considered the Montana property to be hers even though tax notices identify the property as belonging to the William Shelton estate. Mrs. Johnson has paid all taxes on the property and deeded portions of it to her children.

The District Court of the First Judicial District, having considered these factors, entered summary judgment in favor of Mrs. Johnson. Mrs. Graves appeals and argues that the District Court erred:

-by disregarding Mrs. Graves’ alleged full fee simple absolute in the Montana property;

-by ruling there had been no mistake of fact or of law in the exchange of quitclaim deeds;

-by ruling that there was valid consideration for the exchange of quitclaim deeds; and

- by dismissing Mrs. Graves’ counterclaim as barred by laches.

We affirm the District Court’s judgment.

We note first that in actions in equity, this Court will accept the findings of the District Court unless there is a “decided preponderance of the evidence against them”, and that where issues of fact are close, we defer to the District Court because it is in a better position to determine the facts. Peterson v. Taylor (Mont. 1987), [226 Mont. 400,] 735 P.2d 1120, 1122, 44 St.Rep. 754, 756, citing Dahlberg v. Lannen (1929), 84 Mont. 68, 77, 274 P. 151, 153; and Rase v. Castle Mountain Ranch, Inc. (Mont. 1981), [_ Mont. _,] 631 P.2d 680, 684, 38 St.Rep. 992, 996. The basis underlying summary judgment in a quiet title action is similar to that elsewhere: summary judgment is proper when there are no genuine issues of material fact. Benson v. Diehl (Mont. 1987), [228 Mont. 199,] 745 P.2d 315, 316, 44 St.Rep. 1455, 1456, citing Rule 56 M.R.Civ.P.

Mrs. Graves has argued throughout this case that the wills of her grandparents/adoptive parents devised the trust property unto her. The District Court, however, was correct when it ruled that Montana courts need not give a construction to those wills at this late date. The simple fact is that subsequent to receiving by devise what she now calls a full fee simple absolute in 320 acres of land in Montana and 23 acres in Washington, Mrs. Graves offered a quitclaim deed on the Montana property to Mrs. Johnson in exchange for Mrs. Johnson’s quitclaim deed on the Washington property. Thus, this dispute does not concern whether Mrs. Graves had a fee simple absolute in all of the property of the Shelton estate. If indeed she had a fee simple absolute in the entire estate, she exercised one of the rights of ownership by dividing and alienating the Montana property. If her interest was less than a fee simple absolute, the exchange of quitclaim deeds indicates that she was contracting for a fee simple in the Washington property from the person who held a contingent interest. Instead, this dispute focuses on whether the exchange of quitclaim deeds was valid.

Section 70-20-103, MCA, provides sample wording for a quitclaim deed. The contested quitclaim deed, although using different wording, remains substantially similar since it names the grantor and grantee, locates by legal description the property involved, notes the consideration and is signed and dated by the grantor. As such, it represents a valid quitclaim deed, and Mrs. Johnson enjoys conclusive rights in the property as against anyone other than a purchaser in good faith for valuable consideration previously recorded. See Section 70-20-303, MCA. Mrs. Johnson gave up valid consideration for this quitclaim deed since she relinquished a quitclaim deed on the Washington property, in which she had a contingent interest, in order to clear all titles. Section 28-2-801, MCA, defines good consideration, inter alia, as “[a]ny prejudice suffered or agreed to be suffered by [a] person, other than such as he [or she] is at the time of consent lawfully bound to suffer, as an inducement to the promisor . . .” The relinquishment of a legal right is sufficient consideration for a contract. Rickett v. Doze (1979), 184 Mont. 456, 459, 603 P.2d 679, 680. In short, Mrs. Johnson gave consideration for this exchange when she surrendered her contingent interest in the Washington property, which afforded Mrs. Graves a fee simple absolute in the Washington property.

Mrs. Graves’ assertion that she acted under mistaken belief or due to mistaken legal advice does not overcome the fact that she chose to surrender a quitclaim deed on the property. Mrs. Graves was charged with the responsibility of acquainting herself with the effects of the quitclaim deed before she signed it since her husband’s consultant made out the deeds. One who executes a written contract is presumed to know its contents and assent to them; ignorance of the contents is not grounds for relief from liability. Quinn v. Briggs (1977), 172 Mont. 468, 476, 565 P.2d 297, 301. Neither does Mrs. Graves’ reliance on her attorney’s advice in a previous land transaction and the advice of her husband and his consultant on the exchange of quitclaim deeds represent mistake of law. Mrs. Graves cannot obtain relief unless she proves ambiguity in the deed, misrepresentation, bad faith action by Mrs. Johnson, or knowledge on Mrs. Johnson’s part that the transaction was something more than a mutual exchange of quitclaim deeds. Quinn, 565 P.2d at 301. She has proven none of these elements.

Finally, we sustain the District Court’s decision that it would be inequitable to allow Mrs. Graves to repudiate this exchange of quitclaim deeds nine years after the transaction. The doctrine of laches applies “where there has been an unexplained delay of such duration or character as to render the enforcement of an asserted right inequitable.” Clayton v. Atlantic Richfield Co. (Mont. 1986), [221 Mont. 166,] 717 P.2d 558, 561, 43 St.Rep. 717, 720, quoting Brabender v. Kit Manufacturing Co. (1977), 174 Mont. 63, 67-68, 568 P.2d 547, 549. In the present dispute, more than nine years elapsed from the time of the exchange of quitclaim deeds to Mrs. Graves’ pronouncement in her counterclaim that she still owned the Montana property by virtue of the Shelton wills. In that interval Mrs. Johnson had improved on the land and Mrs. Johnson’s grandson had built a home on a portion of the property she deeded to him.

Where a party is actually or presumptively aware of her rights but fails to act, laches is appropriate. Clayton, 717 P.2d at 561. A party is held to be presumptively aware of his or her rights “where the circumstances of which he [or she] is cognizant are such as to put a [person] of ordinary prudence on inquiry.” Hereford v. Hereford (1979), 183 Mont. 104, 108-09, 598 P.2d 600, 602. The mutual transfer of quitclaim deeds in property between two parties is a most serious matter; Mrs. Graves testified at her deposition that the exchange was made to facilitate her sale of five acres of the Washington property. She further testified that at the time of the transaction she trusted her husband would obtain the proper legal advice even though the wills named her as devisee. Mrs. Graves demonstrated by such testimony that she had presumptive knowledge of the effect of the transaction, but did not advise a lawyer of her concerns until October, 1983. Mrs. Graves’ counterclaim is properly barred by laches.

Affirmed.

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


author: MR. JUSTICE WEBER MR. JUSTICE HUNT,

text:
    JODY McKINLEY, Claimant and Respondent, v. AMERICAN DENTAL MANUFACTURING COMPANY, Employer, and State Compensation Insurance Fund, Defendants and Appellants.
    No. 87-365.
    Submitted March 4, 1988.
    Decided May 17, 1988.
    754 P.2d 831.

      Oliver H. Goe, Browning, Kaleczyc, Berry & Hoven, P.C., Helena, for defendants and appellants.
    Julio K. Morales, Morales & Volinkaty, Missoula, for claimant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal of the amount of attorney fees awarded by the Workers’ Compensation Court in Ms. McKinley’s claim for disability benefits. We reverse and remand to the Workers’ Compensation Court.

Appellant State Compensation Insurance Fund (State Fund) states the issue is whether the lower court erred in ignoring offers of settlement made prior to trial in determining the attorney fee awardable under Section 39-71-612, MCA (1983).

The claimant Ms. McKinley suffered an industrial accident to her right hand, arm, and shoulder in January 1984. The State Fund paid temporary total disability benefits until January 1986, when Ms. McKinley started to work for a new employer. At that time, the State Fund terminated temporary total disability benefits and began paying Ms. McKinley permanent partial benefits.

The complaint before the Workers’ Compensation Court was filed because of a disagreement on the calculation of Ms. McKinley’s permanent partial disability benefits. Ms. McKinley successfully argued that her benefits should be calculated under Section 39-71-705, MCA. The court awarded her 500 weeks of permanent partial disability benefits at the rate of $97.87 per week, or a total of $48,935. However, the court noted that since Ms. McKinley’s benefit rate is based on actual lost earnings, the rate may change. The court ruled that either Ms. McKinley or the State Fund may return once a year to recompute the difference between current wages and pre-injury wages. The court therefore denied Ms. McKinley’s request for attorney fees in a lump sum but ordered them paid as Ms. McKinley receives her benefits.

The Workers’ Compensation Court computed Ms. McKinley’s attorney fee based on the difference between the amount awarded and $9,695, which it determined was the “floor offer” by the State Fund. That determination is appealed.

Did the lower court err in ignoring offers of settlement made prior to trial in determining the attorney fee awardable under Section 39-71-612, MCA?

Section 39-71-612, MCA (1983), governs the award of attorney fees in this case. That statute provided, in relevant part:

“(1) If an employer or insurer pays or tenders payment of compensation under Chapter 71 or 72 of this title, but controversy relates to the amount of compensation due and the settlement or award is greater than the amount paid or tendered by the employer or insurer, a reasonable attorney’s fee as established by the division or the workers’ compensation judge if the case has gone to a hearing, based solely upon the difference between the amount settled for or awarded and the amount tendered or paid, may be awarded in addition to the amount of compensation.”

As amended in 1985, the words “based solely upon the difference between the amount settled for or awarded and the amount tendered or paid” are eliminated from the statute. However, we must apply the statute as in effect on the date of injury. Wight v. Hughes Livestock Co., Inc. (1983), 204 Mont. 98, 664 P.2d 303. Our key question is the amount of a reasonable attorney fee when the amount of the fee is “based solely upon the difference between the amount settled for or awarded and the amount tendered or paid.”

The correspondence between Ms. McKinley’s attorney and the State Fund prior to filing of the claim with the Worker’s Compensation Court can be summarized as follows:

“On August 16, 1985, Ms. McKinley’s attorney Mr. Morales wrote to the State Fund, making a demand for payment of benefits for her disability totaling $57,400.

“On January 29, 1986, the State Fund wrote to Mr. Morales. The State Fund advised that because Ms. McKinley had returned to work, payments would begin at $113.07 per week under Section 39-71-703, MCA, for the diminution of wages. The Fund also mentioned an impairment rating of 15% of the whole person and asked that Mr. Morales contact his client and advise whether she wanted benefits under Section 703 or Section 705. The Fund pointed out that benefits under Section 705 would amount to $138.50 per week for not to exceed 75 weeks.

“On February 7, 1986, Mr. Morales wrote to the State Fund. He objected to changing the benefits from temporary total to permanent partial and made a demand for temporary total benefits. Also, demand was made for the payment of the minimum indemnity benefit based on the 15% impairment rating — $10,385.50 was recognized in the Fund letter. Mr. Morales suggested an agreement that Ms. Mckinley was entitled to the maximum benefits of $138.50 for 500 weeks for a total of $69,250.. He asked for settlement on that amount.

“On February 27,1986, the State Fund replied to Mr. Morales’ letter of February 7 stating that it interpreted the letter to mean that Ms. McKinley would like to have benefits paid under Section 705. Therefore, 14 days from the date of the letter wage loss benefits under Section 703 would be discontinued and one month after that, under Section 709 the State Fund would begin payment of “the undisputed liability resulting from the impairment rating.” (Note that this in fact is what the Fund did in its April 28 letter.) The State Fund also advised that it did not believe that Ms. McKinley was entitled to 500 weeks at $138.50 as its calculations showed that even if she were to receive a 5% pay increase each year for the past 2 years she would not qualify for the $138.50. Finally, the Fund noted that Mr. Morales originally had requested settlement for $57,400. The State Fund rejected that offer for lack of sufficient information and observed that the demand had gone up $12,000.

“On March 4, 1986, Mr. Morales wrote to the State Fund. Mr. Morales outlined his theory of loss of earning capacity at 75 weeks at $138.50 per week plus 425 weeks at $137.33 or a total of $68,762.67. He then indicated his client was willing to accept the foregoing in full compensation of the permanent partial disability benefits.

“On March 21, 1986, the State Fund wrote to Mr. Morales. This letter contained the words, ‘our offer of settlement on this case is $36,927.80.’ The next paragraph described how the client was entitled to 70 weeks of partial benefits at $138.50 per week for a total of $9,695. The next paragraph pointed out that the loss of hourly wages translates to $129.68 per week under Section 703 so that for the remaining 210 weeks, she would be entitled to $27,232.80. These two figures together of course total the offer of settlement of $36,927.80.

“On April 28, 1986, the State Fund wrote to Mr. Morales. In this letter, the State Fund mentioned that Ms. McKinley was to receive benefits for 70 weeks at $138.50 per week payable biweekly from April 1, 1986, which was the date of her first entitlement to indemnity benefits under Section 705. They also advised that 3 weeks had passed so she was entitled to a $415.50 lump sum payment. In addition the Fund stated that if Ms. McKinley needed a lump sum payment of future benefits she should contact the claims examiner.” The claim before the Workers’ Compensation Court was filed on March 27,1986. Prior to the trial before the Workers’ Compensation Court, on August 27, 1986, the attorney for the State Fund wrote a letter to Ms. McKinley’s attorney offering settlement in the amount of $40,940.

The lower court found that the first “offer” — the offer that precipitated the dispute — was the January 1986 reduction of Ms. McKinley’s benefits from a temporary total rate to a permanent partial rate. However, it found that the duration of benefits in this offer was unclear. It then found that a $36,927.80 offer was extended in the March 21, 1986, letter but was withdrawn in the April 28, 1986 letter, bringing the parties back to 70 weeks at $138.50, or $9,695. The court determined that “a reasonable attorney fee in this matter should be based on the difference between the amount awarded and the first firm, specific and determinable offer made by the defendant,” that is, $9,695.

Factually we conclude that as of March 21, 1986, the State Fund had made an offer of settlement in the amount of $36,927.80 and there was a specific breakdown on a weekly basis as to the computation of that amount. We disagree with the lower court’s conclusion that this offer was withdrawn in the April 28 letter. In Holton v. F.H. Stoltze Land & Lumber Co. (Mont. 1981), 195 Mont. 263, 637 P.2d 10, 38 St.Rep. 1835, Court held that an insurer has a duty to promptly pay any undisputed compensation, refusal of which triggers penalties. In this case, as of January 1986, the State Fund had acknowledged liability for disability benefits under Section 39-71-705, MCA, of $138.50 per week for not to exceed 75 weeks. We conclude that the April 28, 1986, letter sets forth Ms. McKinley’s Holton benefits. There simply is no factual basis for the conclusion that the March 21 offer was withdrawn. The letter makes no mention of the March 21 offer of $36,927.80, and we conclude that it does not constitute a withdrawal of that offer.

The State Fund argues that the August 27, 1986, offer by its attorney should be compared with the final offer to determine attorney fees. It cites Lasar v. Oftedal & Sons (Mont. 1986), [222 Mont. 251,] 721 P.2d 352, 43 St.Rep. 1938. In that case, this Court held that there were two conditions to an award of attorney fees under Section 39-71-612, MCA (1983): the amount of attorney fees must be in controversy, and the amount awarded must exceed the amount paid or tendered. Lasar, 721 P.2d at 354. This Court refused to award attorney fees in that case because three weeks prior to trial, the insurer had conceded the total amount of compensation due. Thus the first requirement for application of the statute was not met. In contrast, the amount of compensation in the present case remained in controversy through the trial.

Here, following the State Fund’s offer of $36,927.80, the petition was filed in the Workers’ Compensation Court in March 1986. In June, July, and August the parties engaged in discovery including depositions and written interrogatories, and hearing was set for September 2. The letter in which the offer of $40,940 was made is dated August 27, 1986, one day before the pretrial conference and less than a week before the scheduled hearing date. The statute does not clarify whether the “amount tendered or paid” could refer to this late offer. We conclude, however, that use of the eve-of-trial $40,940 figure would not result in a “reasonable attorney fee” under the facts of this case. In this case, we conclude that the “reasonable attorney fee” under Section 39-71-612, MCA (1983), is computed using the difference between the amount awarded and the $36,927.80 offer made preceding the filing of the petition.

Ms. McKinley’s counsel has briefed the issues of whether he was erroneously denied a lump sum award of his fees and whether he is entitled to interest on his fees. However, he has not raised these issues properly by filing a cross-appeal. Therefore we will not consider these issues, and the lower court’s ruling will stand that attorney fees will be paid on a weekly basis as Ms. McKinley’s benefits are paid.

Ms. McKinley’s counsel also points out that his fee agreement with Ms. McKinley entitles him to an increase in attorney fees because this case has been appealed. The fee agreement provides that he will receive 40% of compensation payments if the case is appealed to this Court. Because it was, the Workers’ Compensation Court may increase his attorney fee to be paid by the State Fund to 40% of the difference between the amount awarded and the $36,927.80 tendered. We remand this motion to the Workers’ Compensation Court for entry of an order for attorney fees consistent with this opinion.

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

MR. JUSTICE HUNT,

dissenting:

I concur with the majority’s opinion that a lump-sum fee should not be awarded in this case for the reason that respondent did not raise this issue properly in a cross-appeal.

I dissent, however, with the majority’s disregard of the Workers’ Compensation Court’s finding that the original offer is $36,000 even though the Workers’ Compensation judge found it had been withdrawn and replaced by one for $9,000. It is up to the fact finder to determine what offer or tender is to be used under Section 39-71-612, MCA. In this case the Workers’ Compensation Court found the “floor” to be the offer contained in the March 28 letter. That offer was $9,000 finding of the “first, firm, specific and determinable offer” seems to me to be a proper criteria of a floor. Where there is a genuine offer, that is later withdrawn and replaced by a lesser offer, attorney fees cannot be defeated when, through the efforts of the attorney, the claimant recovers a greater amount than claimant would have received without the help of the attorney.

By its decision, the majority ignores that the purpose of the Workers’ Compensation Act is to provide for the worker injured on the job who cannot provide for himself; it also ignores that Section 39-71-104, MCA, which requires liberal construction of these statutes by the courts, was still in effect at the time of McKinley’s injury and is still applicable to this case.

MR. JUSTICES McDONOUGH and SHEEHY join in the dissent of MR. JUSTICE HUNT.


author: MR. CHIEF JUSTICE TURNAGE

text:
    ABIGAIL WILSON HOUTCHENS, Claimant and Appellant, v. STATE OF MONTANA, EMPLOYMENT SECURITY DIVISION, Employer, and the State Compensation Insurance Fund, Defendants and Respondents.
    No. 87-455.
    Submitted on Briefs April 21, 1988.
    Decided May 17, 1988.
    754 P.2d 824.
    McChesney, Grenfell & Ogg; H.L. McChesney, Missoula, for claimant and appellant.
    Oliver H. Goe, Helena, for defendants and respondents.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Claimant Abigail Wilson Houtchens appeals from a July 14, 1987, decision of the Workers’ Compensation Court finding that Houtchens is not totally disabled and is not entitled to total disability benefits. We affirm.

Appellant Houtchens raises two issues for our review. We have restated the issues as follows;

1. Does substantial credible evidence support the Workers’ Compensation Court’s finding that claimant failed to prove an actual loss of earning capacity pursuant to Section 39-71-703, MCA (1985)?

2. Did the Workers’ Compensation Court err when it failed to award claimant indemnity benefits pursuant to Sections 39-71-705 through -708, MCA (1985)?

Claimant and appellant Abigail Houtchens is thirty-six years old and the mother of two children. Claimant graduated from high school and has since earned 54 college credits. Previously, claimant was employed as a waitress, day-care operator, real estate agent, retail store manager, telephone operator, office manager, substitute teacher and as an operator of a school photography business.

At the time of her injury, claimant was employed by the State of Montana, Employment Security Division at the Missoula Job Service. Houtchens began her employment with the Missoula Job Service in October 1984. Claimant was employed primarily as a switchboard operator with related receptionist and light clerical duties. Houtchens worked five days a week, eight hours a day, and was paid $4.67 per hour. The parties agree that claimant suffered a compensable injury on November 1, 1984.

Prior to her employment at the Missoula Job Service, in April 1984, claimant suffered an injury while cross-country skiing. Follow: ing her injury claimant Houtchens developed acute myofascial syndrome and suffered from tightness in her neck and shoulder muscles. Claimant was treated by Dr. Donald R. Nevin in April 1984. Dr. Nevin testified by deposition that claimant suffered “a muscular condition characterized by tenderness with muscle spasm, localized areas of pain called trigger points and frequently referred pain: that is, pain which radiates beyond the area of muscle inflammation.”

On November 30, 1984, claimant was examined by a second physician, Steven G. Powell. Dr. Powell noted that claimant suffered from neck and shoulder pain. Dr. Powell concurred with Dr. Nevin’s diagnosis that Houtchens suffered from myofascial syndrome which was aggravated by employment related stress. Dr. Powell’s continued treatment of claimant revealed that on January 20, 1986, she was suffering from “non-specific chronic neck pain [with a] normal neurologic examination.”

Following her November 1, 1984, injury, claimant continued to be treated by Dr. Nevin. Dr. Nevin prescribed that claimant undergo physical therapy. Dr. Nevin also prescribed various drugs including pain killers and anti-inflammatories. Dr. Nevin testified that the mechanical requirements of claimant’s employment, coupled with her employment and domestic stress, aggravated her injury. As a result, in June 1985, Dr. Nevin advised claimant Houtchens to discontinue her employment. On or about June 13,1985, claimant voluntarily left her employment with the Missoula Job Service.

Claimant was then referred to Dr. Steven F. Johnson for a neurological opinion. At that time, claimant was suffering from pain and stiffness in her back. Claimant was also suffering from mental depression. Dr. Johnson diagnosed claimant’s condition as cervical syndrome, ruling out a nerve impingement syndrome. Johnson recommended that claimant utilize a jackson cervical pillow and continue physical therapy.

The State Compensation Insurance Fund paid temporary total disability compensation of $124.67 per week beginning August 9, 1985, and continuing through July 1986. In December 1986, claimant received a lump sum based on a 5 percent permanent partial impairment rating determined by a medical panel.

On October 23, 1985, Dr. Nevin again examined claimant and found her condition had improved with better flexibility and a greater range of motion. Nevin noted that claimant “still has bad days where her upper back and neck muscles are tight and uncomfortable.” However, claimant was not experiencing headaches, had not needed physical therapy since June 1985 and was enrolled in an aerobics class. Dr. Nevin forwarded a certificate of condition to the State Compensation Insurance Fund (State Fund) stating that claimant could return to work provided she could “avoid prolonged sitting, working over a desk, typewriter, etc.”

On May 12, 1986, claimant Houtchens was admitted to St. Patrick Hospital for evaluation by a medical panel composed of the following physicians: Steven F. Johnson, M.D., Neurologist; David P. Jacobson, M.D., Orthopedist; Stanley G. Moisey, Psychiatrist; and William J. Norman, M.D., Neurologist. In its May 23, 1986, evaluation, the panel reported that claimant suffered from a slight narrowing of a cervical disc space between C-5 and C-6. The panel found that claimant suffered a 5 percent whole person impairment. No surgical treatment was recommended nor was further study of claimant’s injury. Additionally, the panel found that claimant suffered a psychiatric “adjustment disorder with mixed emotional features . . .” The panel also found that claimant’s psychological disorder was not related to her injury. Accordingly, no impairment rating was established.

Substantial Credible Evidence

Claimant Houtchens contends that substantial credible evidence does not support the Workers’ Compensation Court’s decision denying claimant benefits under Section 39-71-703, MCA (1985).

Previously, we held that this Court will not substitute its judgment for that of the Workers’ Compensation Court concerning the credibility of the witnesses or the weight given their testimony. Jensen v. Argonaut Insurance Co. (1978), 178 Mont. 59, 62, 582 P.2d 1191, 1193. Where the Workers’ Compensation Court’s decision is based on conflicting evidence, our function of review is confined to determining whether there is substantial credible evidence supporting the lower court’s decision. Shupert v. Anaconda Aluminum Company (Mont. 1985), [215 Mont. 182,] 696 P.2d 436, 439, 42 St.Rep. 277, 281. However, when critical evidence is entered by deposition, we are in “as good a position” as the Workers’ Compensation Court to judge the weight given to the deposition testimony. Shupert, 696 P.2d at 439, 42 St.Rep. at 281.

As mentioned earlier, Houtchens brought her claim for benefits for her alleged actual loss of earning capacity pursuant to Section 39-71-703, MCA (1985). In Kuenning v. Big Sky of Montana (Mont. 1988), [231 Mont. 1,] 750 P.2d 1091, 1093, 45 St.Rep. 383, 385, we stated the general rule that the claimant bears the burden of establishing her right to compensation, citing Gierke v. Billings Gazette (Mont. 1986), [224 Mont. 446,] 730 P.2d 1143, 1148, 43 St.Rep. 2322, 2329. In order to prevail pursuant to Section 39-71-703, MCA (1985), a claimant must show an actual diminution in present earning capacity and such loss must be measured on the open labor market. Dunn v. Champion International Corp. (Mont. 1986), [222 Mont. 142,] 720 P.2d 1186, 1191, 43 St.Rep. 1124, 1129.

Respondent’s vocational rehabilitative specialist, David P. Balak, provided unrebutted testimony concerning claimant’s post-injury earning capacity. Balak testified that he utilized the Vocational Diagnostic and Assessment of Residual Employability (VDARE-test) when evaluating claimant Houtchens. Balak stated that he considered claimant’s prior work history, physical status, subjective complaints, mental status and transferable skills including aptitude, intelligence, and verbal communication. Balak found that a number of “actual” jobs including real estate sales agent, retail store manager, department manager, administrative clerk, teachers aide, residence leasing manager and restaurant manager, etc., were available in the Missoula area. Further, Balak concluded that claimant could expect to earn wages commensurate with her pre-injury wages.

In its May 23, 1986, report, the St. Patrick’s Hospital medical panel agreed with David Balak’s assessment of claimant when the panel reported that claimant is able to return to work:

“[Claimant] has reached maximum healing. She may return to the labor market. There are no particular restrictions. No frequent, strenuous and vigorous use of the cervical spine is recommended. Certainly her age, previous experience, training, general physical condition and education should be such that numerous occupations would be available to her ...”

Claimant attempted to rebut Balak’s and the medical panel’s testimony stating that she suffered occasional flare-ups due to self-employment in her ice cream shop. We note claimant’s testimony that since December 1986 she has worked between eight and ten hours per day in the ice cream shop.

A review of the record reveals that substantial credible evidence supports the decision of the Workers’ Compensation Court. Respondent offered testimony that jobs are available (1) at similar pay levels, (2) within claimant’s physical and psychological limitations, and (3) that the available jobs are located within claimant’s geographical area. Claimant clearly failed to carry her burden that her actual earning capacity has been reduced. Accordingly, we agree with the Workers’ Compensation Court that claimant has not suffered a loss of actual earning capacity pursuant to Section 39-71-703, MCA (1985).

Indemnity Benefits

Claimant admits that she incorrectly sought benefits under Section 39-71-703, MCA (1985). Nevertheless, claimant Houtchens argues that the Workers’ Compensation Court erred when it failed to award indemnity benefits pursuant to Sections 39-71-705 through -708, MCA (1985).

In Kuenning, we held:

“While claimant has not met his burden as to a -703 case, this does not preclude the possibility that claimant may be able, in the future, to demonstrate a loss of earning capacity. Claimant may also, if not now then in the future, be able to demonstrate a [Sections 39-71-705 through -708, MCA (1985)] case . . .”

750 P.2d at 1093, 45 St.Rep. at 385.

Clearly, claimant may, in the future, present an argument before the Workers’ Compensation Court that she is entitled to indemnity benefits.

Affirmed.

MR. JUSTICES HARRISON, WEBER, GULBRANDSON and HUNT concur.

        FOOTNOTES

      1. Section 39-71-703, MCA, was extensively amended by the 1987 Legislature.