author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RICHARD T. RUSHTON, Defendant and Appellant.
    No. 93-498.
    Submitted on Briefs January 13, 1994.
    Decided March 22, 1994.
    51 St.Rep. 262.
    264 Mont. 248.
    870 P.2d 1355.

      For Defendant and Appellant: Michael J. Sherwood, Missoula.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Kathy Seeley, Assistant Attorney General, Helena; George Corn, Ravalli County Attorney, Hamilton.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Defendant Richard T. Rushton was charged by information in the District Court for the Twenty-first Judicial District in Ravalli County with criminal possession of dangerous drugs, a felony, in violation of § 45-9-102, MCA. On March 30, 1993, the District Court denied defendant’s motion to suppress statements made and evidence obtained in a search of his residence. After this Court denied supervisory control, defendant entered a plea of guilty on the condition that he be allowed to appeal the District Court’s denial of his motion to suppress. This appeal followed.

We reverse the order of the District Court.

The following issues are presented by defendant on appeal:

1. Did the District Court err when it denied defendant’s motion to suppress evidence of statements made prior to the time defendant was given Miranda warnings?

2. Did the District Court err when it denied defendant’s motion to suppress evidence seized during an unwarranted search of his residence?

Defendant Richard Rushton and his wife, Susan, live in a semi-rural area outside of Florence, Montana. At the time of the incident giving rise to this appeal, both were employed as teachers in the Corvallis school system. They have no children.

The Rushtons were friends with Timothy and Pamela Hammond, also of Florence. On December 9, 1992, the Hammond’s 12-year-old son informed the Ravalli County Sheriff’s Office that his parents had a marijuana grow operation at their residence. He also informed the officers that he had seen a marijuana grow operation in defendant’s garage “over one year ago.”

Based on the information received from the Hammond’s son, Detective Bailey of the Ravalli County Sheriff’s Office obtained a search warrant for the Hammond residence and executed it on the evening of December 10, 1992. That search resulted in the confiscation of marijuana, growing equipment, and drug paraphernalia. The investigating officers asked the Hammonds if they knew whether defendant was also growing marijuana. Timothy Hammond responded that he had seen marijuana in defendant’s garage “about two months ago.”

Detective Bailey testified that, based on the information received from the Hammond’s son and the statement made by Timothy Hammond, he thought he had probable cause to obtain a search warrant for defendant’s residence. He further testified that he had no reason to believe that the County Attorney or a Justice of the Peace was unavailable that evening to prepare and review a warrant application. However, after discussing the situation with Sheriff Printz, the Ravalli County Sheriff, it was decided that Detective Bailey and the other officers who had conducted the search of the Hammond residence would proceed to defendant’s home without a warrant and attempt to obtain permission to search his residence. Sheriff Printz testified that one of the reasons for this decision was concern about the cost of overtime compensation if time had been taken to obtain a search warrant.

At approximately 9 p.m. on December 10, 1992, five armed and uniformed Ravalli County deputies arrived at defendant’s home for the purpose of investigating alleged criminal activity. Detective Bailey and another officer approached the front door, and three other officers went to the back of the residence to detain anyone who attempted to leave. Detective Bailey turned on a tape recorder in order to document the ensuing conversation with defendant and his wife. However, the Rushtons were unaware that their conversation with the officers was being recorded.

At the time the officers arrived and knocked on the front door, defendant was already in bed for the evening, and Susan, wearing pajamas and a robe, was preparing for bed.

When the Rushtons opened the door, Detective Bailey asked them their names, identified himself and the other officer, and inquired, “Do you have a moment where we could come in and speak to you?” The Rushtons were not told that the officers were there for the express purpose of attempting to obtain permission to search their home or to inquire about alleged criminal activity. Defendant invited the officers to come in out of the rain and offered them seats in the living room. Defendant and his wife sat on the living room couch and Detective Bailey sat in a chair across from them. The other officer remained standing in the doorway which led out of the living room. Defendant testified that he felt he was not free to leave the room at this point.

During this time, the following exchange occurred:

BAILEY: Folks, I’ve gotta advise you of what’s going on here, and you’re probably not gonna be too happy about it. Go ahead and sit down.
DEFENDANT: Ok.
BAILEY: We, uh, understand you’re friends ... you’re Mr. Rushton, right? Susan?
DEFENDANT: Yeah.
BAILEY: Ok. You’re friends with Mr. Hammond.
DEFENDANT: Yeah. Everything’s Ok, isn’t it?
BAILEY: Well, other than the marijuana grow operation in his basement.
SUSAN: In Mr. Hammond’s basement?
BAILEY: Yes, ma’am.
DEFENDANT: Our friends, the Hammond’s ...?
BAILEY: Yes. And your friends the Hammonds indicate that you also have a marijuana grow in your garage. And, our purpose here is to see if we can clean this situation up, and if in fact there is marijuana there, then we’ll have to do what we have to do, and ... if not, then there’s no problem. He said it hasn’t been too long ago he seen them there. Is that true, sir?
DEFENDANT: That’s true sir.
BAILEY: Ok. I want to do this the easy way, ok?
DEFENDANT: Ah, me too. Me too.
BAILEY: Ok. The easy way is that, uh, we have a Consent to Search form here, which you have to agree to sign, and I’ll... I’ll be very frank, if you don’t, we’ll be sitting here for a number of hours, and we’ll have to go get a search warrant. But, with the Consent to Search, we’ll just go ahead and do it, and the only thing I’m gonna promise you is when we leave here, you folks’ll be staying here. Ok? We won’t arrest you here. Eventually, though, we’ll have to go to the County Attorney. Understand that?
DEFENDANT: I think...
BAILEY: Go ahead and show him the form.
DEFENDANT: Oh, Ok. Let me just get...
BAILEY: Go ahead and ask some questions. Go ahead.
BAILEY: That’s fine. We just want to do this the easy way.
DEFENDANT: Quite honestly, do I need a lawyer here or anything? I mean... I’m not, I’m not saying let me get my damn lawyer, I’m not... I don’t have a lawyer, I don’t KNOW a lawyer; that’s not what I’m saying. Ok? I’m saying, ... from ... I know, you can read me that, that’s not what I’m saying, I’m saying... you know, right. [Emphasis added].

It is undisputed that defendant was not given a Miranda warning prior to the foregoing exchange. When defendant expressed concern about whether he needed a lawyer, Detective Bailey informed defendant that he was not required to consent to a search, but reiterated the promise that if marijuana was found, neither defendant nor his wife would be arrested at that time. Defendant discussed the matter with Susan and stated, “I mean... what about... would you feel better if there was a lawyer here while they search this. You know they’re gonna search; they have the right to search. You know what they’re gonna find.”

Detective Bailey then asked the Rushtons to read and sign the form. After describing more about the search process, Detective Bailey stated the following:

BAILEY: You’ll be given a complete receipt for every item that’s taken. You know, one thing I want to do... Like I said, irregardless (sic) of anything tonight, we will not arrest you, but, you know, we are going to advise you of your Miranda Warning. That’s something that’s kinda customary.

At this time, the Rushtons were given Miranda warnings and Detective Bailey asked defendant if he wished to make a statement. Defendant declined, saying, “I don’t really think I better make a statement yet.” After some further discussion, defendant signed the form and a search was immediately conducted.

The officers seized fourteen immature marijuana plants, four mature plants, dried marijuana seeds, and growing implements and literature.

As a result of the questioning and search of defendant’s residence, defendant was charged by information on December 22, 1992, with felony criminal possession of dangerous drugs, in violation of § 45-9-102, MCA. Defendant entered a plea of not guilty and, on February 9, 1993, filed a motion to suppress the statements made and the evidence seized from his home on the night of December 10. Following an evidentiary hearing, the District Court entered an order in which this motion was denied.

On August 11, 1993, after this Court denied supervisory control, defendant entered a plea of guilty to the offense charged, conditioned on his right to appeal the District Court’s order. The court accepted this plea, and on August 20,1993, defendant was found guilty of the offense charged and sentenced. From the District Court’s order denying the motion to suppress, defendant appeals.

STANDARD OF REVIEW

When reviewing a district court’s denial of a motion to suppress, this Court determines whether there is substantial credible evidence to support the court’s findings of fact, and whether those findings were correctly applied as a matter of law. State v. Beach (1985), 217 Mont. 132, 147, 705 P.2d 94, 103. Here, defendant does not disagree with the court’s factual findings but contends the court erred when it concluded Miranda warnings were not required prior to the officer’s questioning of defendant and that defendant voluntarily consented to a search of his residence. Our review, therefore, is plenary and we must determine whether the court’s conclusions were correct as a matter of law. State v. Sage (1992), 255 Mont. 227, 229, 841 P.2d 1142, 1143.

ISSUE 1

Did the District Court err when it denied defendant’s motion to suppress evidence of statements made prior to the time defendant was given Miranda warnings?

When asked by Detective Bailey whether there was a marijuana grow operation which Timothy Hammond would have recently seen, defendant admitted that this statement was true. Defendant contends that the court should have granted his motion to suppress this admission, and other statements made to the officers when asked if he would consent to a search, because he was not advised of his Miranda rights prior to making these statements. He asserts that Detective Bailey’s questioning constituted a custodial interrogation triggering the need for Miranda warnings because he reasonably believed his freedom was significantly restricted at the time Detective Bailey was in his home questioning him.

The District Court, in its order, relied heavily on the contents of the recorded conversation between Detective Bailey and the Rushtons, and circumstances such as defendant’s age and education, the brevity of the interrogation, and the lack of physical restraints. The court concluded that defendant was not in custody or deprived of his freedom in any significant way when Detective Bailey asked the critical question and defendant answered it affirmatively.

The United States Supreme Court has ruled that states may not use confessions or admissions resulting from a “custodial interrogation” unless the proper Miranda warnings have been given. Miranda v. Arizona (1966), 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706. The Court defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. Accord, State v. Staat (1991), 251 Mont. 1, 6, 822 P.2d 643, 646. Thus, before determining whether Detective Bailey should have given defendant Miranda warnings in this instance, we must first determine whether there was a “custodial interrogation.”

This Court has established guidelines for determining when a “custodial interrogation” occurs. If a person has no free right to leave, either from the express or implied conduct of police officers, then the interrogation is custodial in nature. State v. Ellinger (1986), 223 Mont. 349, 355, 725 P.2d 1201, 1204; State v. Osteen (1985), 216 Mont. 258, 265, 700 P.2d 188, 193. The United States Supreme Court and this Court have made clear that interrogation which occurs in a suspect’s home is subject to Miranda where it occurs in an environment in which the suspect’s freedom of action has been significantly restricted. Orozco v. Texas (1969), 394 U.S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d 311; State v. Ryan (1979), 182 Mont. 130, 133-35, 595 P.2d 1146, 1147-48. However, even when the defendant is the focus of a criminal investigation at the time of questioning by officers, Miranda warnings are only required where a person’s freedom is so restricted as to render him in custody. State v. Dannels (1987), 226 Mont. 80, 87, 734 P.2d 188, 193.

To determine if a custodial interrogation has occurred, this Court considers each case on a case-by-case basis and looks to whether a “reasonable person” would not feel free to leave, after considering such factors as the time and place of interrogation, the length and mood of interrogation, and persons present during the questioning. State v. Lapp (1983), 202 Mont. 327, 331, 658 P.2d 400, 403; Staat, 822 P.2d at 646.

Here, two armed officers were in defendant’s home late at night after arousing him from bed. When Detective Bailey and the other officers went to defendant’s home, it is clear that they suspected defendant of criminal activity. Moreover, the officers specifically intended to obtain defendant’s consent to conduct a search of his home because, for administrative reasons only, they did not attempt to get a warrant. Defendant was not told why the officers wanted to talk with him, nor that he had the right to refuse them entry. Although defendant quickly put on some clothes, his wife was dressed only in a robe and pajamas diming the time they were questioned by Detective Bailey. Furthermore, after the Rushtons were told to sit on the couch, a second armed officer remained standing and blocked the exit from the room. Defendant testified that he did not feel he was free to leave and the officers present admitted their intention to stop and detain anyone who attempted to leave. At that time, without providing Miranda warnings, Detective Bailey asked a direct question of defendant for the purpose of obtaining evidence against him.

After considering these circumstances, we conclude that a person in defendant’s position could reasonably believe that his freedom was restricted and he was not free to leave. Therefore, we hold that the questioning of defendant constituted a custodial interrogation.

In Osteen, 700 P.2d at 188, this Court addressed a similar situation. In that case, Narvin Osteen was at home when two officers knocked on his front door sometime after 10 p.m. The officers requested admission and were invited in by Osteen, but did not tell Osteen why they wanted to talk with him, nor that he had the right to refuse them entry. The officers clearly suspected Osteen of criminal activity and proceeded to question him without giving him Miranda warnings. After eliciting certain admissions from Osteen, he was arrested for aggravated assault. We concluded that Osteen was questioned in a custodial atmosphere and that the statements he made during that interrogation were inadmissible.

Although the State attempts to distinguish defendant’s situation from Osteen by emphasizing certain factors which it asserts were less “coercive,” we do not find the distinctions in Osteen as significant as the similarities.

Because we have determined that defendant was interrogated in a custodial atmosphere requiring Miranda warnings under the Fifth Amendment to the United States Constitution, and Article II, Section 25, of the Montana Constitution, the failure of Detective Bailey to preface his questions with Miranda warnings renders inadmissible the statements defendant made. The District Court erred when it concluded that Miranda warnings were not required and denied defendant’s motion to suppress evidence of defendant’s statements.

ISSUE 2

Did the District Court err when it denied defendant’s motion to suppress evidence seized during an unwarranted search of his residence?

Under the Fourth and Fourteenth Amendments to the United States Constitution, and Article II, Section 11, of the Montana Constitution, warrantless searches and seizures conducted inside a home are per se unreasonable subject only to a few carefully drawn exceptions. Schneckloth v. Bustamante (1973), 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854; State v. Kim (1989), 239 Mont. 189, 779 P.2d 512. One of the recognized exceptions to the warrant requirement arises when a citizen has knowledgeably and voluntarily consented to a search. Schneckloth, 412 U.S. at 219, 93 S.Ct. at 2043; § 46-5-101, MCA.

“ ‘[W]hen a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given .’Bumper v. North Carolina [1968], 391 U.S. 543, 548, 88 S.Ct. 1788, 1701, 20 L.Ed.2d 797.” Schneckloth, 412 U.S. at 222, 93 S.Ct. at 2045. Accord, Kim, 779 P.2d at 517.

The Schneckloth Court made clear that the Constitution requires that consent be voluntarily given, uncontaminated by any duress or coercion, express or implied. In order to determine whether consent to a search was given voluntarily, this Court has adopted the same test used by the Supreme Court, which is the “totality of the circumstances” test. Kim, 779 P.2d at 517.

In this instance, defendant contends his consent to the search was not given freely and that the court erred when it denied his motion to suppress the evidence seized during the search. Defendant alleges his consent was the product of illegal questioning, the threat that he and his wife would be held in custody “for a number of hours” until a warrant could be obtained, and an implied threat that they would be arrested if consent was not given for a search.

The State counters with the assertion that the court correctly denied the motion to suppress because defendant was clearly told that he did not have to consent to the search, the officers were polite and nonaggressive during this incident, and his verbal and written consent were not coerced in any manner.

Although we agree that defendant was specifically told he was not required to consent to a search, this factor is not controlling. In Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2059, the Court specifically held that a subject’s knowledge of a right to refuse is only one of the factors to be taken into account and is not determinative of the question of voluntariness. Here, after considering the totality of the circumstances, we conclude that several factors, when considered cumulatively, negate the voluntariness of defendant’s verbal and written consent.

First, as concluded under the first issue, defendant’s admission that there was marijuana on the premises was extracted improperly ■without Miranda warnings, after entry to defendant’s home was gained without a warrant. Although we are not adopting a rule which would invalidate consent in any situation following an unlawful interrogation, we conclude the State has not met the burden in this instance of demonstrating that defendant’s consent was not affected by the fact that he had made a highly incriminating statement.

Furthermore, Detective Bailey explicitly promised that if defendant consented to the search, he would not arrest and incarcerate the Rushtons. The court concluded that this did not constitute an implied threat to incarcerate if consent was withheld. However, after considering this statement in light of the entire circumstances, we conclude the implication existed that if defendant did not cooperate, incarceration would result, and that this contributed to the coercive atmosphere in which defendant’s consent was received.

The statement made by Officer Bailey that the officers would remain in the Rushton’s home for several hours, if necessary, until a warrant could be obtained raises particular concerns. When Officer Bailey said, “I’ll be very frank, if you don’t [consent], we’ll be sitting here for a number of hours, and we’ll have to go get a search warrant,” the message was conveyed that the officers would remain in the house, with defendant and his wife in custody, until a search warrant was obtained. The District Court relied on this Court’s decision in State v. Yoss (1965), 146 Mont. 508, 409 P.2d 452, to conclude that this statement was permissible. However, we conclude that this statement was a misrepresentation of the law and was coercive in nature.

In Yoss, the defendant had been arrested pursuant to a valid warrant and was legally in custody. We held that neither the fact that defendant was informed a search warrant could be obtained if he refused to consent, nor the fact that he was under arrest at the time consent was given, rendered the consent coerced. Yoss, 409 P.2d at 455.

Here, however, the officers had no right to imply that they could sit in defendant’s home for a number of hours while a warrant was obtained. In this instance, there was no valid warrant permitting the officers to be in defendant’s home. Defendant had allowed the officers to come into his home after they asked if they could talk with him. However, they had no right to remain in his home, absent a valid warrant, if defendant revoked that consent. See, e.g., United States v. Kelly (6th Cir. 1990), 913 F.2d 261 (consent terminated when defendant revokes previously given consent). While the officers may have been able to remain on defendant’s property during the time it took to obtain a warrant, it was a misrepresentation to imply that they could remain in defendant’s home, keeping him and his wife in custody, while a warrant was obtained.

Based on these circumstances, considered in their totality, we hold that defendant’s consent was obtained in a coercive manner and was not given freely and voluntarily. Therefore, evidence obtained during that search was seized in violation of the Fourth Amendment to the United States Constitution and Article II, Section 11, of the Montana Constitution, and is inadmissible. The District Court erred when it denied the motion to suppress the evidence seized during the search of defendant’s residence.

The order of the District Court is reversed. Pursuant to the plea agreement, the conviction is reversed and the case remanded for further proceedings.

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


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    IN THE MATTER OF THE ESTATE OF RUSSELL MICHAEL, JR., Claimant and Respondent, MARK O’KEEFE, State Auditor and Commissioner of Insurance of the State of Montana, Petitioner and Appellant, v. GLACIER GENERAL ASSURANCE COMPANY, A Montana Corporation, Respondent.
    No. 93-375.
    Submitted on Briefs December 2, 1993.
    Decided March 22, 1994.
    51 St.Rep. 252.
    264 Mont. 261.
    871 P.2d 272.

      For Petitioner and Appellant: Richard Larson, Patrick M. Driscoll, Chronister Driscoll & Moreen, Helena.
    For Claimant and Respondent: Dane C. Schofield, Peterson & Schofield, Billings; Robert E. Maclin, III, Gess, Mattingly & Atchison, Lexington, Kentucky.
   JUSTICE GRAY

delivered the Opinion of the Court.

Commissioner of Insurance Mark O’Keefe, Liquidator for Glacier General Assurance Company (Glacier General), appeals from the District Court’s grant of summary judgment in favor of the Estate of Russell Michael, Jr. (the Estate). The court determined that the Estate’s claim in the amount of $1,749,000, less a two percent deductible, was valid and assigned the claim Class 3 priority in the distribution of Glacier General’s assets. We affirm.

The Estate’s claim arises from a financial security bond issued by Glacier General in November of 1984. At that time, Earl Parks (Parks) contracted to purchase ninety-six thoroughbred horses from Russell Michael, Jr. (Michael). Parks paid $1,000 and executed a promissory note for the $1,749,000 balance. To secure the note, Michael retained a security interest in the horses and required Parks to obtain a financial security bond in the amount of $1,749,000. The bond issued by Glacier General required Michael to assign his security interest in the horses to Glacier General in the event that performance on the bond was required.

Parks failed to make the first installment payment to Michael later in November. Michael sent notice of default and acceleration to Parks. He also notified Glacier General of the default, requested performance under the terms of the bond, and indicated his expectation that Glacier General take possession of the horses or reimburse the costs of holding them. Neither Parks nor Glacier General responded.

In January of 1985, Michael filed a lawsuit in the Fayette Circuit Court for the Commonwealth of Kentucky against Parks and Glacier General. Parks did not appear and a default judgment was entered against him. Glacier General appeared and entered into an “Agreed Order” with Michael providing for the public auction of the horses that had not died or previously been sold privately by Michael. The auction was held on September 8 and 9,1985.

On September 18, 1985, the Kentucky court filed an “opinion” determining that Michael was entitled to summary judgment against Glacier General. A subsequent “opinion” was filed on December 6, 1985, liquidating Michael’s damages against Glacier General in the amount of $2,220,484.86. Of that amount, $1,749,000 represented Glacier General’s liability on the bond; the remainder reflected Michael’s expenses for the maintenance, upkeep and sale of the horses, less the sale proceeds. Judgment was entered in Michael’s favor on December 6, 1985.

While Michael’s litigation against Parks and Glacier General proceeded in Kentucky, Glacier General became financially insolvent. It filed a petition for liquidation on August 12, 1985, and the First Judicial District Court, Lewis and Clark County, subsequently entered an order of liquidation and appointed State Auditor and Commissioner of Insurance Andrea Bennett as Liquidator. In January of 1986, Michael submitted a proof of claim to the Liquidator in the amount of $2,220,484.86. The Liquidator denied the claim.

In April of 1990, by which time Michael had died, the Estate filed a complaint with the referee appointed by the First Judicial District Court. It requested the referee to assign its claim Class 3 priority and order the Liquidator to proceed with payment. In April of 1991, the parties stipulated to reserve adjudication of the Estate’s claim in excess of $1,749,000 because Glacier General had insufficient funds to distribute to claimants with priority below Class 3.

The Liquidator asserted nine affirmative defenses in its amended answer filed August 26,1991. The defenses included allegations that enforcement of the sales agreement was unconscionable; that the claim should be assigned Class 4 priority as a general creditor’s claim; and that the amount of the claim on the bond should be offset by the proceeds from the sale of the horses.

In October of 1991, the Estate moved for summary judgment. The Liquidator opposed the motion. The referee determined that the Liquidator had not adequately defended against the motion under Rule 56(e), M.R.Civ.P., but declined to grant summary judgment. The referee gave the Liquidator a “second chance” to establish the existence of a genuine issue of material fact. Following the Liquidator’s filing of additional affidavits, supplemental briefing and a second hearing on the motion, the referee recommended that summary judgment be granted in the Estate’s favor. The District Court adopted the recommendation and granted the Estate’s motion for summary judgment on April 12,1993.

Mark O’Keefe, successor to Andrea Bennett as Liquidator, appeals from the grant of summary judgment in favor of the Estate. He asserts the existence of genuine issues of material fact affecting Glacier General’s obligation to perform under the bond and challenges the classification and amount of the claim.

Did the District Court err in determining that no genuine issues of material fact existed regarding the enforceability of the sales agreement and financial security bond?

Our standard for reviewing a grant of summary judgment is the same as that used by the district court. Emery v. Federated Foods (1993), [262 Mont. 83], 863 P.2d 426, 431, 50 St.Rep 1454, 1456. Summary judgment is appropriate when the pleadings, affidavits, depositions and other documents on file demonstrate that no genuine issues of fact exist and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.

Once the party moving for summary judgment meets its burden of establishing that no genuine issues of material fact exist, the burden of proof shifts to the party opposing the motion to present substantial evidence raising an issue of material fact. Kelly v. Widner (1989), 236 Mont. 523, 526, 771 P.2d 142, 144. The opposing party must set forth specific facts, by affidavit or as otherwise provided by Montana law, showing the existence of genuine issues for trial; affidavits must be based on personal knowledge and set forth facts which would be admissible in evidence. Rule 56(e), M.R.Civ.P.

The Liquidator asserts that sworn statements by Ryan Mahan, a licensed auctioneer in Kentucky, and John Hayden, Glacier General’s president when the bond was issued, established issues of material fact regarding the enforceability of the sales agreement and bond. He argues that the court erred by weighing the credibility of Mahan and Hayden rather than resolving the purported factual disputes at trial, in contravention of Morrow v. FBS Ins. (1988), 230 Mont. 262, 749 P.2d 1073. We disagree.

In Morrow, conflicting allegations regarding issues of material fact were contained in the affidavits and depositions of the parties. The trial court conceded as much when it noted that the case was a question of the plaintiff’s word versus the defendant’s word. The court went on to resolve the conflicts in granting summary judgment. We reversed the court, stating that summary judgment is improper where an affiant’s credibility may be crucial to the determination of a material fact. Morrow, 749 P.2d at 1075.

Morrow has no application here because the Mahan and Hayden materials did not create genuine issues of material fact regarding the enforceability of the sales agreement and bond. In his first affidavit, Mahan stated that the sales transaction was “highly irregular” because Parks paid only $1,000 as a down payment. The Liquidator relies on this statement as evidence that the underlying transaction was invalid, in an effort to preclude enforcement of the transaction via the bond. In his later deposition, however, Mahan testified that his characterization of “irregularity” was incorrect because he had not reviewed the sales agreement or considered the financial guarantee bond as part of the transaction.

Focusing on the content of the affidavit and deposition, the court determined that the “irregularity’ of the sales transaction had been eliminated as an issue by Mahan’s repudiation of his earlier statement. Thus, the court did not evaluate Mahan’s credibility but determined, pursuant to Rule 56(e), M.R.Civ.P., that his statements did not raise a genuine issue of material fact impugning the enforceability of the sales agreement via the bond.

In a similar vein, the Liquidator argues that enforcement of the sales agreement via the bond would be unconscionable because of a disparity between the market value of the horses and the contracted price. He relies on statements by Mahan as a basis for his unconscionability argument and again contends that the District Court impermissibly weighed Mahan’s credibility to determine that no genuine issue had been raised.

Mahan stated in his first affidavit that the market value of the horses as of the date the sales agreement was executed was substantially less than the purchase price. However, the appraisal attached to his supplemental affidavit reflected only the market value of the horses in September of 1985; it did not include an estimate or appraisal of the market value of the horses at the time of the underlying sales transaction in November, 1984. Furthermore, Mahan’s deposition states that the market value of horses generally declined significantly in the early part of 1985 from the “pinnacle” of thoroughbred horse prices reached in 1984; the inference is clear that the market value of the horses at the time the sales agreement was executed was significantly higher than Mahan’s appraised value as of September, 1985.

We agree with the court that the totality of Mahan’s testimony considered in a light most favorable to the Liquidator fails to establish the existence of a genuine issue of fact relating to the value of the horses at the time the sales agreement was executed. More importantly, we conclude that a disparity between the horses’ market value and the purchase price, even if properly raised as an issue, would not be material to the “conscionability’ of enforcing the sales agreement. Oppression and a disparity of bargaining power are the indicia of unconscionability relating to a sales contract between two business professionals. All-States Leasing v. Top Hat Lounge (1982), 198 Mont. 1, 6-7, 649 P.2d 1250, 1253. Those indicia are totally lacking here.

The Liquidator also contends that Hayden’s affidavit raises a factual dispute concerning Michael’s representation of the horses’ market value in his bond application. The thrust of this contention is that Michael misrepresented the market value in order to obtain the bond and, therefore, that enforcement of the bond itself would be unconscionable.

The court determined that none of the application materials for the bond purported to represent the horses’ market value and that Hayden was not competent to testify as to that market value. Thus, the court did not assess Hayden’s credibility but applied principles governing summary adjudication and determined that Hayden’s sworn statements did not raise a material issue regarding the conscionability of enforcing the bond.

The Liquidator also contends that a shift in the referee’s position regarding payment of the bond reflects an impermissible resolution of a factual issue. In his first order, the referee characterized the evidence surrounding the transaction as “suspicious” based, in part, on the payment of the premium by a cashier’s check remitted by an escrow company. The referee directed the Liquidator — in the Liquidator’s effort to oppose summary judgment — to contact the escrow company to determine the source of the funds used to pay the premium. In his second order, the referee unequivocally stated that Parks paid the premium, a position adopted by the District Court.

The supplemental materials filed by the Liquidator neither indicate that the escrow company was contacted nor contain any facts showing that Parks did not pay the premium via the escrow company. Thus, the referee’s change in position does not represent a factual determination, but again reflects the Liquidator’s failure to advance evidence establishing the existence of a genuine issue of material fact for trial.

We conclude that the District Court did not resolve genuine issues of material fact; it properly applied the principles governing summary judgment set forth in Rule 56(e), M.R.CÍV.P. We hold that the District Court did not err in determining that the Liquidator failed to raise genuine issues of material fact regarding the enforceability of the sales agreement or the financial guarantee bond.

Did the District Court err in assigning Class 3 priority to the Estate’s claim?

Relying on the doctrine of merger, the Liquidator contends that the Estate’s claim on the bond was extinguished by the entry of the Kentucky court’s “opinion” on September 18, 1985. Under this approach, the Estate’s claim would be solely on the Kentucky judgment, entitling it to Class 4 priority as a general creditor. While the Liquidator’s attempt to escape the effect of the District Court’s 1989 declaratory judgment that claims on Glacier General’s bonds are entitled to Class 3 priority is understandable, his arguments are not persuasive on either the facts or the law before us.

At the outset, we note that the record establishes that the bond itself was the basis for the Estate’s claim. In its “proof of claim” submitted to the Liquidator, the Estate supported its claim on the underlying transaction, attaching copies of the sales agreement, promissory note and bond. While the Estate also attached a copy of the ultimate Kentucky judgment, it relied on the judgment only as evidence to support its claim on the bond. Furthermore, the defenses asserted by the Liquidator were to the claim on the bond itself.

Nor is there merit to the Liquidator’s argument that the Estate’s claim is on the Kentucky judgment as a matter of law. The Liquidator correctly points out that this Court applied the merger doctrine in Neel v. First Fed. Sav. & Loan Assoc. (1984), 207 Mont. 376, 675 P.2d 96. There, we determined that when a contract claim is reduced to judgment, the contract is surrendered and cancelled by merger in the judgment and ceases to exist. Neel, 675 P.2d at 101. The Liquidator asserts that the same doctrine is applicable to the Estate’s claim on the bond. We disagree.

The Kentucky court’s September 18, 1985, opinion did not cancel the claim on the bond. Caine & Weiner v. Barker (Wash. App. 1986), 713 P.2d 1133, relied on by the Liquidator to support application of the merger doctrine, actually supports the inapplicability of the doctrine here. It clarifies that the doctrine is available only where a final judgment has been entered for the payment of money. Caine & Weiner, 713 P.2d at 1134. The September 1985 opinion was not a judgment, much less a final judgment; nor did it award damages. Indeed, the opinion expressly anticipated the filing of a subsequent order. Thus, it does not support application of the merger doctrine.

Moreover, § 33-2-1365(4), MCA, precludes merger of the claim on the bond into the final judgment entered by the Kentucky court on December 6, 1985. Section 33-2-1365(4), MCA, provides in pertinent part:

No judgment or order against... the insurer entered after the date of filing of a successful petition for liquidation... need be considered as evidence of liability or of quantum of damages.

Here, Glacier General’s petition for liquidation was filed on August 12,1985, and the order of liquidation entered on November 12,1985. Because the December 6, 1985 judgment was filed after the liquidation order, it has no binding effect on either liability or damages under § 33-2-1365(4), MCA.

We recently addressed this statute’s relationship to prior judgments in Claim of Kowalski (1993), [260 Mont. 269], 860 P.2d 104, 50 St. Rep. 1038. There, the Liquidator attempted to rely on the res judicata effect of a post-liquidation consent judgment obtained by claimant Kowalski. We initially determined that the effect of such a prior judgment was governed primarily by the liquidation statutes, relying on § 1-1-108, MCA. Kowalski, 860 P.2d at 108. Pursuant to those statutes, we held that the prior judgment did not conclusively establish the amount of damages claimed. The only procedure by which claimant could establish that amount following the Liquidator’s denial of her claim was to present proof of the claim to the referee. Kowalski, 860 P.2d at 109.

Here, as in Kowalski, the Estate must prove both liability and damages in order to establish its claim under the liquidation statutes. Because the Kentucky judgment had no conclusive effect, the only claim upon which the Estate could establish Glacier General’s liability and quantum of damages is the claim on the bond. The Estate properly established its claim on the bond and, therefore, is entitled to Class 3 priority pursuant to the court’s 1989 declaratory judgment. We hold that the District Court did not err in assigning Class 3 priority to the Estate’s claim.

Did the District Court err in concluding that the proceeds from the sale of the horse collateral should be applied first to offset Michael’s expenses in maintaining and selling the horses rather than to reduce the Estate’s claim under the bond?

According to the District Court, Glacier General’s failure to perform under the bond caused Michael to suffer losses in two categories. It determined that the expenses incurred by Michael in maintaining and selling the horses represented a loss separate from, and in addition to, the unpaid debt secured by the bond. The court then determined that the sales proceeds would not cover the maintenance and sales expenses and, as a result, that no proceeds would remain to apply to the loss under the bond. On that basis, the court refused to apply § 33-2-1371(3), MCA, to reduce the amount of the Estate’s Class 3 claim on the bond.

The Liquidator advances two arguments challenging the court’s determination that the sales proceeds should be first applied to maintenance and sales expenses. First, he argues that the court improperly circumvented § 33-2-1371(3), MCA, by dividing Michael’s losses into two categories. We disagree.

Section 33-2-1371(3), MCA, provides that any portion of a loss under a “policy” which is recovered by the claimant from other sources cannot be included in a Class 3 claim. This statute pertains only to Michael’s loss under the bond itself, which the District Court previously has declared to be a “policy” of insurance. The expenses incurred in maintaining and selling the horses are, as the court determined, a separate loss. Thus, only the portion of the sales proceeds, if any, which exceeds the maintenance and sales expenses would constitute a recovery of the Estate’s loss under the bond; only that portion would be subject to exclusion under § 33-2-1371(3), MCA.

While the amount of the expenses incurred and sales proceeds received has not yet been litigated because Glacier General’s assets are insufficient to distribute to claims with priority lower than Class 3, the record suggests that the incurred expenses significantly exceed the sales proceeds. The Liquidator does not argue otherwise. Thus, no portion of the sales proceeds represents a recovery of the Estate’s loss under the bond pursuant to § 33-2-1371(3), MCA.

Next, the Liquidator argues that the District Court improperly placed the obligation of the horses’ care on Glacier General. Under the terms of the sales agreement, possession of the horses did not transfer until the first installment was paid. Because Parks defaulted on the initial payment, the Liquidator asserts that Parks acquired neither possession of the horses nor the obligation for their care. On that basis, he contends that Glacier General had no corresponding obligation as surety on the bond.

This argument is without merit. Glacier General’s liability for the maintenance and sales expenses is derived from its failure to perform its obligations under the bond, namely, payment of the remaining $1,749,000 purchase price and acceptance of the assignment of the horse collateral. Had Glacier General performed when requested by Michael, the expenses would not have been incurred. The fact that Parks had not yet acquired the obligation to care for the horses under the sales contract does not effect Glacier General’s liability for those expenses under the terms of its bond.

The Liquidator advances one additional argument that we address here, although it is only tangentially related to the application of the sales proceeds. He asserts that Michael failed to give notice of the private sales of some of the horses which preceded the public auction. On that basis, he argues that an issue of material fact exists regarding the commercial reasonableness of the private sales, precluding summary judgment under Agricredit Acceptance Corp. v. Michels (1991), 250 Mont. 23, 817 P.2d 704.

Section 30-9-504(3), MCA, entitles a secured creditor to dispose of collateral so long as every aspect of the disposition is commercially reasonable. It specifically requires the seemed party to give the debtor reasonable notice of the time after which any private sale is to be made unless the collateral is perishable or threatens to decline speedily in value.

As the party moving for summary judgment, the Estate was required to show the absence of genuine issues of material fact regarding the reasonableness of the private sales of the horses. To that end, it submitted the affidavit of Don S. Sturgill, an expert in the thoroughbred horse industry. In his affidavit, Sturgill testified that the private sale of horses often resulted in higher prices than sale by public auction, establishing the commercial reasonableness of that manner of sale. He also indicated that the prices of thoroughbred horses dropped dramatically in 1985, establishing the inapplicability of the notice requirement of § 30-9-504(3), MCA, to private sales where the value of the collateral is declining speedily. Thus, the Estate met its initial summary judgment burden.

The Liquidator’s bare assertion that notice was not given does not raise a genuine issue of material fact as to the necessity of notice on the record before us. Unlike the debtor in Agricredit Acceptance Corp., the Liquidator failed to advance any evidence that placed the commercial reasonableness of the private sales at issue.

We conclude that the District Court correctly determined that the proceeds from the sale of the horses should be applied first to offset the expenses incurred by Michael in maintaining and selling the horses. The Liquidator has not asserted error in the court’s determination that the sales proceeds would not be sufficient to cover these expenses. Thus, we hold that the court properly declined to apply any portion of the sales proceeds to reduce the Estate’s Class 3 claim on the financial guarantee bond.

Affirmed.

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


author: DISTRICT JUDGE McCARTER JUSTICE TRIEWEILER

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. MIKE MUMMEY, Defendant and Appellant.
    No. 93-165.
    Submitted on Briefs December 2, 1993.
    Decided March 17, 1994.
    51 St.Rep. 198.
    264 Mont. 272.
    871 P.2d 868.

      For Defendant and Appellant: Patrick F. Flaherty, Great Falls.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena; Donald Ranstrom, County Attorney, Chinook.
   DISTRICT JUDGE McCARTER

delivered the Opinion of the Court.

Mike Mummey (Defendant) appeals from Blaine County District Court orders denying his motions for directed verdict, and for judgment notwithstanding the verdict after his conviction for felony assault. We affirm.

On December 9, 1991, Raymond Miller, Merle Darling and Wade Hillier drove to Montana from their home in Canada to visit friends and purchase some equipment for a hot water tank. When they arrived in Harlem, Montana, they stopped at the Nite Train Bar to visit with Miller’s friends and have some drinks.

A few blocks from the Nite Train Bar was Kennedy’s Bar, where Defendant was drinking with Joe Mohar and Louis “Puddy” Mount. Defendant and Mohar became disruptive and after being rebuked by the bartender, they left Kennedy’s and proceeded to the Nite Train Bar.

At the Nite Train Bar, Defendant noticed the three Canadian men and made a derogatory comment to the bartender, asking if the men were “some of your pig farmer friends from up north.” Mohar saw one of the Canadians, Wade Hillier, talking to three local women. Mohar went over to Hillier, shoved him away and, using profane language, told him to get out of the way and leave his women alone. Raymond Miller went over to Mohar and asked what the problem was. Mohar replied with profanity, telling Miller that he and his Canadian friends should get out of the bar and out of the country.

The owner of the bar intervened and told Mohar to leave. Mohar yelled to Defendant that he did not like Canadians, and yelled to Miller that he would take him outside and fight him. Mohar then left the bar. Defendant purchased some beer and a bottle of liquor and also left the bar.

Miller remained in the bar for about five minutes, then left. Merle Darling, who had not witnessed the shoving incident and the exchange of words between Mohar and Miller, assumed that Miller was going to Kennedy’s, and decided to go see what was happening there. When he opened the front door of the Nite Train Bar to leave, Darling saw Miller lying on the street on his back, being kicked by Defendant and Mohar. Darling charged into Defendant and Mohar in an attempt to get them off Miller. Darling was knocked to the ground by a blow and then was kicked four or five times in the head. One kick struck him in the mouth. When the assailants left, Darling got up, checked Miller, and returned to the bar to get help.

Darling was cut and bruised, and his false teeth were shattered. Miller suffered severe facial injuries, including injuries to his eyes. As a result of the severe beating, Miller suffered a memory lapse and could not recall the events that led to his injuries. Darling testified that he was hit in the teeth with what felt like boots, but he did not see whose boots they were. Defendant testified that he wore tennis shoes that night.

During the trial, Puddy Mount and Defendant both testified that Defendant did not participate in the beating of Miller. Mount testified that Defendant attacked Darling as he walked out of the bar. Defendant testified that he intercepted Darling in order to keep him out of the fight; he stated that Mount kicked Darling and he, Defendant, attempted to stop Mount from doing so.

Defendant was charged with two crimes: aggravated assault (Count 1) upon Raymond Miller, and felony assault (Count 2) upon Merle Darling. The case proceeded to trial and, at the close of the State’s case, Defendant moved for a directed verdict as to both counts. The motion was denied. On September 23,1992, the jury returned its verdict, finding Defendant not guilty of aggravated assault and guilty offelony assault. Defendant moved for judgment notwithstanding the verdict. That motion was also denied. At the sentencing hearing the District Court deferred imposition of sentence for three years and placed Defendant on probation, subject to certain conditions.

There are two assignments of error on appeal:

1. That the court erred in refusing to grant the motion for directed verdict; and

2. That the court erred in refusing to grant the motion for judgment N.O.V.

The issues raised in these motions are twofold:

1. Whether the tennis shoes worn by Defendant were a weapon under the assault statute; and

2. Whether the language in the felony assault count of the information precluded the jury from convicting Defendant of that count after acquitting him of aggravated assault.

Standards of Review

Section 46-16-403, MCA, permits the district court to dismiss a criminal action at the close of the prosecution’s case when the evidence is insufficient to support a finding or verdict of guilty. This Court has construed this statute to mean that “ ‘a verdict of acquittal may be directed in favor of the defendant only if no evidence exists upon which to base a guilty verdict.’ ” State v. Haskins (1992), 255 Mont. 202, 210, 841 P.2d 542, 547 (quoting State v. Christofferson (1989), 238 Mont. 9, 11, 775 P.2d 690, 692) (emphasis in original). The Court has repeatedly stated that a defendant is entitled to an acquittal if reasonable persons could not conclude from the evidence taken in the light most favorable to the prosecution that guilt has been proven beyond a reasonable doubt. See State v. Doney (1981), 194 Mont. 22, 29, 636 P.2d 1377, 1381; Haskins, 841 P.2d at 547 (citing State v. Laverdure (1990), 241 Mont. 135, 785 P.2d 718).

The standard of review for a trial court’s refusal to grant a defendant’s motion for a directed verdict of acquittal is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This is the same standard of review used by the Court to determine the sufficiency of the evidence supporting a conviction. State v. Bower (1992), 254 Mont. 1, 6, 833 P.2d 1106, 1110.

The decision to direct a verdict at the close of the State’s case lies within the sound discretion of the trial court and is not disturbed on appeal absent an abuse of that discretion. See State v. Graves (1990), 241 Mont. 533, 535, 788 P.2d 311, 313.

The statutes governing practice and procedure in criminal proceedings do not provide for judgment notwithstanding the verdict. Cf. Rule 50(b), (c), (d), M.R.Civ.P. However, § 46-16-702, MCA, permits a defendant to move for a new trial following a verdict of guilty, and under this statute, the district court may modify or change the verdict by finding the defendant guilty of a lesser included offense or finding the defendant not guilty. Defendant’s motion for judgment notwithstanding the verdict will be deemed one made under that section.

The standard of review of a district court’s ruling on a motion for new trial is whether the district court abused its discretion. State v. Gambrel (1990), 246 Mont. 84, 91, 803 P.2d 1071, 1076.

Issue 1

Defendant argues that the State failed to prove with sufficient evidence that his footwear was a weapon under the felony assault statute. In chambers, while arguing the motion for directed verdict, Defendant conceded that he had been fighting with and had committed “a technical assault” on Merle Darling, but argues that the State had failed to identify the weapon. He further argues that the tennis shoes, which Defendant wore during the assault, are not weapons as defined in the statute because they are incapable of producing serious bodily injury.

Section 45-2-101(71), MCA, defines “weapon” as “any instrument, article, or substance that, regardless of its primary function, is readily capable of being used to produce death or serious bodily injury.” One of the elements of felony assault upon Darling was use of a weapon. Section 45-5-202(2)(a), MCA. “Serious bodily injury” means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ. It includes serious mental illness or impairment. Section 45-2-101(59), MCA.

Whether a weapon was used in the commission of a criminal assault is a factual element to be determined by the jury. The test for sufficiency of the evidence with respect to a factual element of a crime is whether any rational trier of fact could have found that element beyond a reasonable doubt. State v. Evans (1991), 247 Mont. 218, 224, 806 P.2d 512, 516.

The statute defining “weapon” for purposes of the assault statutes must be construed according to the plain meaning of the language therein. See State ex rel. Woodahl v. District Court (1973), 162 Mont. 283, 292, 511 P.2d 318, 323. When the language of the statute is plain, unambiguous, direct and certain, the statute speaks for itself and there is nothing left for the court to construe. Hammill v. Young (1975), 168 Mont. 81, 85-86, 540 P.2d 971, 974. The language of § 45-2-101(71), MCA, is broad enough to include any instrument that although not dangerous per se may be considered a weapon, depending on its maimer of use and the circumstances in which it is used.

Many jurisdictions have adopted this approach, when considering shoes as weapons. See Jones v. Commonwealth (Ky. 1953), 256 S.W.2d 520 (shoes may be regarded within the term “deadly weapon” when employed in such a manner as may be reasonably calculated to produce great bodily injury or death); Medlin v. United States (D.C.Cir. 1953), 207 F.2d 33, cert. denied, (1954) 347 U.S. 905, 74 S.Ct. 431, 98 L.Ed. 1064 (shoes are dangerous weapons when they inflict serious injury); United States v. Barber (D. Del. 1969), 297 F.Supp. 917, aff’d, (3rd Cir. 1971), 442 F.2d 517; State v. Born (Minn. 1968), 159 N.W.2d 283; Hay v. State (Okla. Crim. App. 1968), 447 P.2d 447 (shoes are not dangerous weapons per se but the manner of their use might make them so); Johnson v. State (Miss. 1970), 230 So.2d 810; People v. Hale (Mich. Ct. App. 1980), 292 N.W.2d 204, vacated on other grounds, (Mich. 1980) 298 N.W.2d 421; State v. Wraggs (Mo. Ct. App. 1973), 496 S.W.2d 38, cert. denied, (1974) 414 U.S. 1160, 94 S.Ct. 920, 39 L.Ed.2d 113.

In Commonwealth v. Polydores (Mass. Ct. App. 1987), 507 N.E.2d 775, rev. denied, (Mass. 1987) 509 N.E.2d 1202, the defendant, wearing running shoes, kicked the victim repeatedly, causing a fractured nose, black eyes and bruises. The court held that the evidence at trial was sufficient to support a conviction of assault with a dangerous weapon. In State v. Munoz (La. Ct. App. 1991), 575 So.2d 848, cert. denied, (La. 1991), 577 So.2d 1009, the defendant kicked the victim while wearing tennis shoes, causing serious injuries. The tennis shoes qualified as a dangerous weapon within the meaning of the aggravated battery statute.

Kicking with a tennis shoe clad foot presents a question for the jury whether Defendant employed a weapon, under all the circumstances surrounding the incident. See e.g. Hale, 292 N.W.2d at 205; Johnson, 230 So.2d at 811; Polydores, 507 N.E.2d at 776. To rule that a tennis shoe is not a weapon as a matter of law would deprive the jury of this important fact-finding function. The inquiry here is not whether the tennis shoe is a weapon per se, but whether, under the circumstances of the assault and the manner in which it was used, it was a weapon. Accordingly, the State was required to prove beyond a reasonable doubt that the ordinarily harmless footwear was used in such a way that rendered it readily capable of producing death or serious bodily injury.

This holding is consistent with our prior decisions addressing weapons. In State v. Evans (1991), 247 Mont. 218, 806 P.2d 512, we affirmed the jury finding that a stem gun was a weapon. In State v. Howard (1981), 195 Mont. 400, 637 P.2d 15, we upheld a finding that pantyhose was a weapon where it was used to strangle the victim. In State v. Klemann (1981), 194 Mont. 117, 634 P.2d 632, a glass ashtray was properly found to be a weapon, when the victim was struck on the head with it repeatedly. In State v. Matson (1987), 227 Mont. 36, 736 P.2d 971, a pellet gun qualified as a weapon when the defendant pointed it at the victims and threatened them.

Defendant refers to State v. Deshner (1977), 175 Mont. 175, 573 P.2d 172, in urging us to declare that a tennis shoe is not a weapon. In that case, the victim was struck in the face with a projectile while he was in his car. He testified that he was not aware of exactly what had hit him and was not sure if the projectile had been propelled by a slingshot; nor did he know who flung the projectile at him. The defendant stated that he had shot at the victim’s car, but was not sure that he had actually struck the victim. No other witnesses were called to show that the victim had been struck by a projectile fired from a slingshot or that defendant had fired a projectile at the victim, even though there were two other individuals in the victim’s car at the time of the incident. Neither the slingshot nor the projectile was introduced into evidence. The record was barren of any testimony that the slingshot-projectile combination was in fact a weapon capable of producing death or bodily injury, and the victim suffered only a bruise. We held that the testimony when taken as a whole failed to prove that the assault was committed with a weapon “capable of being used to produce death or serious bodily injury.” Deshner, 573 P.2d at 174.

In the instant case, the victim, Merle Darling, testified that he was kicked repeatedly with what he thought was a boot, because it felt like one. Defendant testified that he wore tennis shoes that night, and introduced them into evidence. Darling sustained various facial injuries, including shattering of his dentures, cutting of his gums and the inside of his lip, cuts above the eyes and behind the ears, and bruised arms, shoulders and ribs. The jury had sufficient evidence, therefore, to find that Defendant had kicked Darling with a tennis shoe, and that based on the circumstances of the assault and the resulting injuries sustained by Darling, the tennis shoe was readily capable of causing serious bodily injury.

Issue 2

Defendant asserts that the jury’s verdict as to the felony assault count should be reversed, because the language in that count referred to the occurrence in the aggravated assault count, of which he was acquitted. Specifically, Defendant asserts that the jury verdict of guilty on Count 2 but not guilty on Count 1 is inconsistent because the language in Count 2 describes the footwear as the same used in the assault against Raymond Miller in Count 1.

The information contained the following language, which was included in Jury Instruction Number 5:

Count II

The Defendant, on or about December 9, 1991, committed the offense of Felony Assault, a Felony, in that he did purposely or knowingly cause bodily injury to another with a weapon, to-wit: Defendant knocked Merle Darling to the ground and kicked him in the head with footwear which caused pain, bruising, contusions and broken teeth to Merle Darling. Said footwear was the same as used on Raymond Miller and was readily capable of being used to produce death or serious bodily injury as evidenced by injuries caused to Raymond Miller as set forth in Count I.

During their deliberations, the jury presented questions to the court, one of which was:

If the defendant is found guilty on Count II do we have to find him guilty on Count 1? Since the bottom line on Court’s #5 page 1 indicates that the footwear was the same as used on Raymond Miller.

ANSWER: No.

It is well settled that the only purpose of an information is to let the defendant know what he is charged with having done, so that he can prepare his defense. State v. Straight (1959), 136 Mont. 255, 263, 347 P.2d 482, 487; State v. D.B.S. (1985), 216 Mont. 234, 238, 700 P.2d 630, 633. Incorporating the information in instructions to the jury is not error where it contains basically statutory language that applies to the crime of which the defendant is charged. State v. Riley (1982), 199 Mont. 413, 430, 649 P.2d 1273, 1281-82; State v. McKenzie (1980), 186 Mont. 481, 507-08, 608 P.2d 428, 444-45, cert. denied, (1980) 449 U.S. 1050, 101 S.Ct. 626, 66 L.Ed.2d 507.

The language of the information that was incorporated into Instruction 5 did not redefine the elements of the crime of felony assault, nor did it change the nature of the offense or the burden of proof. It merely contained surplus language about the footwear used by Defendant. That same instruction specifically instructed the jury that each count in the information charged a distinct offense, that they must decide each count separately, and that the Defendant may be found guilty or not guilty of any or all of the offenses charged. It also enumerated the individual elements of each of the offenses charged, as well as the applicable definitions.

This Court has previously held that each instruction must be viewed in the context of the overall charge. If all instructions reviewed as a whole, fairly and accurately present the case to the jury, the fact that one instruction, standing alone is not as full as it might have been is not reversible error. Riley, 649 P.2d at 1281.

The jury’s question concerning the surplus language in Count 2 indicated some confusion which was adequately cleared up by the court in its answer. In view of all of the instructions given to the jury, the surplus language contained in Count 2 of the information did not invalidate the verdict.

Defendant refers to State v. Later (1993), 260 Mont. 363, 860 P.2d 135. In that case, the defendant was charged with official misconduct, but the information charged the crime under the wrong statutes. The district court submitted an instruction to the jury that quoted the language of the correct statute. We held that this amendment of the information was reversible error, because the change was substantive to the charge, and thus deprived the defendant of adequate notice of the crime charged and of the opportunity to defend himself. Later, 860 P.2d at 137. In the instant case, the language in Count 2 simply refers to footwear used against another victim as described in Count 1. It does not substantively affect the elements of the crime of felony assault.

In his reply brief, Defendant raised the issue of whether the judge’s answers to jury questions during the deliberations were prejudicial and inaccurate. This issue was raised for the first time in Defendant’s reply brief, and is thus not proper for consideration. Rule 23, M.R.App.P.

In summary, we conclude that the issue of whether the tennis shoe used by Defendant in the assault in Count 2 was a weapon was properly a question of fact for the jury. The jury’s finding that a weapon was used in the assault was supported by the evidence. The surplus language in Count 2, which was given to the jury in an instruction, did not invalidate the jury’s verdict of guilty as to that count.

The judgment of the District Court is affirmed.

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

JUSTICE TRIEWEILER

dissenting.

This case involves nothing more than a barroom argument between two drunks which resulted in a fight outside the bar between defendant and his accuser. No one was seriously injured in the fight, and the purported victim was, by his own admission, the aggressor. Yet, as a result of that fight, defendant stands convicted of a felony for which the potential penalty is ten years in prison and a $50,000 fine.

While the historical effort to bring law and order to the west is commendable, this case is a classic example of judicial acquiescence in prosecutorial overkill and should be a cause of alarm to all Montana citizens. This “case of the deadly sneaker” merits further discussion.

I dissent from the majority opinion for two reasons: First, the State produced insufficient evidence to prove felony assault pursuant to § 45-5-202(2)(a), MCA, and our prior decision in State v. Deshner (1977), 175 Mont. 175, 573 P.2d 172. Second, if what constitutes a “weapon” for the purpose of satisfying the elements of the felony assault statute can be established on a case-by-case basis after the act complained of was committed, and can be construed so broadly as to include a tennis shoe, then I believe the statute under which defendant was convicted is unconstitutional in violation of Article I, Section 10, of the United States Constitution which prohibits ex post facto laws, and is impermissibly vague in violation of the Due Process Clauses of the Federal and State Constitutions.

Other than the nature of the alleged “weapon” that was used by defendant, the facts in this case are practically indistinguishable from the facts which we held required reversal of the defendant’s conviction in Deshner. In that case, the defendant was charged with aggravated assault under the same provisions which now form the felony assault statute. In that case, the victim testified that while he was driving his car he was struck in the jaw by some kind of projectile. He was not aware of exactly what had hit him, nor who had flung the projectile. The only evidence regarding his physical condition was that he observed blood and admitted himself to the emergency room at the hospital. The only evidence connecting the defendant and a “weapon” to the incident was testimony from an investigating officer to the effect that the defendant confessed to him following the incident that he fired two shots with a slingshot at the victim’s automobile.

On appeal, Deshner contended that there was no proof that the slingshot which was used was capable of producing death or serious bodily injury, and therefore, proof was absent on an essential element of the crime of aggravated assault. That is exactly the nature of the proof which was required to convict defendant of felony assault in this case, and which was not produced. As the basis for reversing the defendant’s conviction in the Deshner case, this Court stated that:

The cumulative effect of the testimony offered at trial, taken in the light most favorable to the state does not prove that the assault was committed with a weapon "capable of being used to produce death or serious bodily injury.” Even if we assume that the use of a slingshot was adequately proven, the record is barren of any testimony that the slingshot-projectile combination was in fact a weapon capable of producing death or bodily injury. No evidence was presented concerning the size, weight or shape of the projectile which struck the victim nor the velocity at which the slingshot was capable of propelling such projectile. The evidence indicated that VanDenBos received a bruise on the jaw requiring no hospitalization and that no bones were broken. Such proof falls far short of establishing an assault with a weapon capable of being used to produce death or serious bodily injury as required by statute.

Deshner, 573 P.2d at 174.

In this case, the nature of proof was remarkably similar. There were only three witnesses to the altercation which formed the basis for the felony assault charge against defendant. They were the participants in the altercation, Merle Darling and defendant, and Louie Mount, who testified after receiving immunity from prosecution. Mount’s and defendant’s accounts of what happened were substantially different than Darling’s. They described an altercation with both men rolling around on the ground flailing at each other with both arms and feet. While the jury was entitled to disregard the testimony of Mount and defendant, they apparently gave it some weight because defendant was acquitted of any assault on Raymond Miller. That acquittal was inconsistent with the testimony of Darling, and consistent with testimony from Mount and defendant.

However, even if Darling’s testimony is accepted in its entirety, it provided no more proof than was established by the State in Deshner.

Darling testified that prior to the altercation, he had consumed nine or ten beers that evening, but was not sure because he was not counting. When he came out of the Nite Train Bar he alleged that he charged defendant and another to “clean them characters off of Raymond.” However, when he got to the fight scene someone knocked him down, although he did not know who. He testified that after he was on the ground he believes he was kicked by two people, but admitted that after being knocked down he was not 100 percent clear of what happened.

He reported sustaining bruises, several lacerations, and that his false teeth were shattered, although he did not know who knocked his teeth out. He testified that he did not feel any of the injuries he sustained amounted to serious bodily injury and did not report ever being admitted to the hospital for observation or treatment.

He did not recall having any altercation with Louie Mount, even though Mount admitted kicking Darling’s arm free from defendant in order to extricate defendant from the fight. He was not sure what kind of footwear anyone was wearing.

Defendant did offer into evidence the tennis shoes he stated he was wearing that evening, but there is no indication in the record of their size, weight, composition, or how they were more dangerous than a bare foot — if they were.

As in Deshner, the above evidence falls “far short of establishing an assault with a weapon capable of being used to produce death or serious bodily injury,” and therefore, falls far short of the proof required to convict under Montana’s felony assault statute. Certainly any injuries sustained by Darling’s companion, Raymond Miller, cannot support defendant’s conviction. Furthermore, defendant was acquitted of any assault on Miller.

Deshner has never been reversed nor modified. The Deshner decision makes good sense. It should control the outcome in this case.

Furthermore, but just as importantly, Montana’s felony assault statute provides no notice to anyone that an article of clothing as apparently harmless as a tennis shoe, when involved in what would appear to be a simple misdemeanor assault, would increase the gravity of the offense from one that would normally be punishable by a maximum fine of $500 and imprisonment for six months -under § 45-5-201, MCA, to a felony punishable by a fine of up to $50,000 and imprisonment for a period of up to ten years. Because no rational person would understand that the consequence of his conduct is so markedly different depending on whether he kicked someone with a bare foot or a foot covered with a thin layer of canvas, any statute which allows such unexpected consequences is impermissibly vague, and therefore, void because it violates the Due Process Clauses of the Montana and United States Constitutions.

We have previously held that a statute can violate the Fourteenth Amendment of the United States Constitution, and Article II, Section 7, of the Montana Constitution, if it is unconstitutionally vague. State v. Woods (1986), 221 Mont. 17, 22, 716 P.2d 624, 627.

The issue of “vagueness” with regard to a statute or ordinance can be raised in two different connotations: (1) whether it is so vague the law is rendered void on its face; or (2) if it is vague as applied in a particular circumstance.
The general rule is that a statute or ordinance is void on its face if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute. United States v. Harriss (1954), 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989.

City of Choteau v. Joslyn (1984), 208 Mont. 499, 505, 678 P.2d 665, 668.

I conclude that the combination of §§ 45-5-201 and -202(2)(a), MCA, are unconstitutionally vague as applied to the facts in this case because a person of ordinary intelligence would not know where misdemeanor assault leaves off and felony assault begins. According to the majority’s opinion, such a distinction can only be made on an after-the-fact, case-by-case basis.

The majority’s decision says, in effect, to the public: “We can’t define exactly what felony assault is but we know it when we see it.” The problem is that with this approach no citizen will ever know ahead of time whether by engaging in a simple barroom fight they are exposing themselves to charges of misdemeanor assault or felony assault. If a participant strikes someone with his fist, can he assume that he is committing a misdemeanor? On the other hand, if he wears a glove and commits the same act with no greater damage to the victim, is he then exposing himself to imprisonment for a period 20 times greater and a fine 100 times greater? Why would any rational person assume those facts to be true ahead of time?

Would striking someone with a hand constitute the use of a weapon? If so, then what kind of assault would ever rise to the level of a simple misdemeanor? Would it be a misdemeanor to strike someone with a hand, but a felony to strike someone with your foot? Would it be a misdemeanor to strike someone with a bare foot, but a felony to strike someone in the exact same way causing no greater harm when that same foot is covered with a lightweight pliable form of canvas? If so, why? And, what basis would the average citizen have for assuming these distinctions to be true?

In light of this decision, should there be a five-day waiting period and should backgrounds be checked before a person can purchase tennis shoes? Are tennis shoes protected by the Second Amendment? Can we look forward to a new round of slogans such as: “Tennis shoes don’t kill people. People kill people.” Should children be allowed to wear tennis shoes, or only adults?

The majority’s case-by-case, after-the-fact approach to distinguish between the commission of a misdemeanor and a felony is exactly what was prohibited by the United States Supreme Court in Bouie v. City of Columbia (1964), 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894. In that case, several African-American citizens entered an all-white lunch counter in Columbia, South Carolina. There were no signs nor notices posted which prohibited their entry. However, they were not served and were asked to leave. They refused to do so and were charged with, among other things, criminal trespass. They were convicted of that offense and their conviction was affirmed by the South Carolina Supreme Court. The terms of the statute pursuant to which they were convicted prohibited “entry upon the lands of another ... after notice from the owner or tenant prohibiting such entry ....” Bouie, 378 U.S. at 349-50, 84 S.Ct. at 1700. However, the South Carolina Supreme Court construed the statute to prohibit not only entry on the premises of another, but also the act of remaining on the premises of another after receiving notice to leave.

The defendants in that case appealed their conviction to the United States Supreme Court on the grounds that the statute did not provide fair warning to them that their conduct was a violation of the law and that when the South Carolina Supreme Court construed the statute as it did, they were punished for conduct that was not criminal at the time they committed it, and therefore, their rights under the Due Process Clause were violated. The Supreme Court agreed. It pointed out that:

The basic principle that a criminal statute must give fair warning of the conduct that it makes a crime has often been recognized by this Court. As was said in United States v. Harriss, 347 U.S. 612, 617 [74 S.Ct. 808, 812].
“The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.”
Thus we have struck down a state criminal statute under the Due Process Clause where it was not “sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.” Connally v. General Const. Co., [(1926)], 269 U.S. 385, 391 [46 S.Ct. 126, 127, 70 L.Ed 322], We have recognized in such cases that “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law,” ibid., and that “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, [(1939)], 306 U.S. 451, 453 [59 S.Ct. 618, 619, 83 L.Ed. 888].

Bouie, 378 U.S. at 350-51, 84 S.Ct. at 1701 (footnote omitted).

The Supreme Court pointed out that the typical application of the vagueness doctrine was to situations where the language of the statute itself was either vague or over-broad. However, in language relevant to the situation in this case, the Court pointed out that a statute can be made vague by its judicial application. The Court held that it was equally objectionable from a constitutional standpoint when a statute “precise on its face” is “ ‘unforeseeably and retroactively expanded by judicial construction ....’ ” Bouie, 378 U.S. at 352, 84 S.Ct. at 1701-02. The Court stated that:

There can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language. As the Corut recognized in Pierce v. United States, [(1941)], 314 U.S. 306, 311, [62 S.Ct. 237, 239-40, 86 L.Ed. 226], “judicial enlargement of a criminal Act by interpretation is at war with a fundamental concept of the common law that crimes must be defined with appropriate definiteness.”

Bouie, 378 U.S. at 352, 84 S.Ct. at 1702.

In fact, the Court pointed out that when coruts unforeseeably expand criminal liability, as the majority has done in this case by judicial interpretation, more than the Due Process Clause is offended. Such after-the-fact expansion of criminal liability also violates Article I, Section 10, of the United States Constitution which prohibits ex post facto laws. In that regard, the Supreme Court stated:

Indeed, an unforeseeable judicial enlargement of á criminal statute, applied retroactively, operates precisely like an ex post facto law, suchas Art. I, § 10, of the Constitution forbids. An ex post facto law has been defined by this Corut as one “that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action,” or “that aggravates a crime, or makes it greater than it was, when committed.” Calder v. Bull, [(1798)], 3 Dall. 386, 390 [1 L.Ed. 648]. If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. Cf. Smith v. Cahoon, [(1931)], 283 U.S. 553, 565 [51 S.Ct. 582, 586, 75 L.Ed. 1264], The fundamental principle that “the required criminal law must have existed when the conduct in issue occurred,” Hall, General Principles of Criminal Law (2d ed. 1960), at 58-59, must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue,” it must not be given retroactive effect. Id., at 61.
... When a similarly unforeseeable state-court construction of a criminal statute is applied retroactively to subject a person to criminal liability for past conduct, the effect is to deprive him of due process of law in the sense of fair warning that his contemplated conduct constitutes a crime. Applicable to either situation is this Court’s statement in Brinkerhoff-Faris [Trust & Sav. Co. v. Hill (1930), 281 U.S. 673, 678, 50 S.Ct. 451, 454, 74 L.Ed. 1107], that “if the result above stated were attained by an exercise of the State’s legislative power, the transgression of the due process clause of the Fourteenth Amendment would be obvious,” and “The violation is none the less clear when that result is accomplished by the state judiciary in the course of construing an otherwise valid ... state statute.” Id., at 679-680, 50 S.Ct. at 454.

Bouie, 378 U.S. at 353-55, 84 S.Ct. at 1702-03 (footnote omitted).

Likewise, in this case, the majority’s decision was an unforeseeable enlargement of a criminal statute. It takes an act that any reasonable person would assume was a simple misdemeanor assault and makes it a felony punishable by ten years imprisonment based on a judicial decision rendered after the act occurred.

Had defendant and Darling engaged in a simple barroom fight during which Darling was kicked by defendant, but from which Darling’s injuries were no greater than they were in this case, defendant would never have been charged with felony assault, and this Court would never have affirmed a conviction for felony assault had he been so charged. This charge and this decision are simply the result of accusations that defendant committed other aggressive acts of a much more serious nature, but which were never proven and for which defendant was acquitted. This case is a classic example of bad facts resulting in bad law.

For these reasons, I would reverse the judgment of the District Court. I would, as the majority did, construe defendant’s post-trial motion as a motion for a new trial pursuant to § 46-16-702, MCA, and pursuant to that motion, I would modify the verdict by finding defendant guilty of the lesser included offense of misdemeanor assault in violation of § 45-5-201(l)(a), MCA, since I conclude there was sufficient evidence to sustain conviction for that offense.

JUSTICE HUNT joins in the foregoing dissent.


author: JUSTICE HARRISON

text:
    LODGE GRASS HIGH SCHOOL DISTRICT NO. 2, Petitioner and Appellant, v. LORRAINE HAMILTON, TREASURER, BIG HORN COUNTY, Respondent and Respondent, and BIG HORN COUNTY HIGH SCHOOL DISTRICT NO. 1, Respondent and Intervenor.
    No. 93-407.
    Submitted on Briefs January 13, 1994.
    Decided March 24, 1994.
    51 St.Rep. 282.
    264 Mont. 290.
    871 P.2d 890.

      For Petitioner and Appellant: James L. Vogel, Hardin.
    For Respondent and Respondent: Natasha J. Morton, Hardin, (Hamilton); Laurence R. Martin, Michael K. Rapkoch; Felt, Martin & Frazier, Billings (Intervenor).
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Thirteenth Judicial District Comet, Big Horn County. Lodge Grass High School District No. 2 (Lodge Grass) appeals that court’s order distributing coal tax revenues from mines within the Decker Elementary School District (Decker District) to Big Horn County High School District No. 1 (Hardin). We affirm.

On June 15, 1992, Lodge Grass sought declaratory relief by requesting judicial interpretation of § 15-23-703(4), MCA(1991). Lodge Grass alleged that the Big Horn County treasurer was improperly distributing Decker District’s gross proceeds coal tax revenue to Hardin in conflict with § 15-23-703(4), MCA (1991). Lodge Grass argued that § 15-23-703(4), MCA (1991), compelled the treasurer to distribute the Decker District’s gross proceeds coal tax revenue to Lodge Grass.

The court allowed Hardin to intervene in the matter. Hardin and Lodge Grass were the only active parties at the District Court level.

Both parties agreed that there were only five high school aged children in the Decker District and the arrangement for years had been to send the students to school in Wyoming. Previously, in January 1990, a group of electors in the Decker District filed a petition with the Big Horn County Superintendent of Schools (County Superintendent). The petition sought a transfer of the Decker District territory from Lodge Grass to Hardin. The County Superintendent held a hearing and subsequently transferred the Decker District territory to Hardin.

Lodge Grass appealed the decision to the State Superintendent of Public Instruction, who, on October 26, 1990, affirmed the County Superintendent’s decision to transfer the Decker District. On December 24, 1990, Lodge Grass petitioned for judicial review of that decision. District Court Judge Holmstrom dismissed the petition as untimely and we upheld his decision in Pretty On Top v. Snively, Cause No. 93-289, 51 St.Rep. 0241 (decided March 22, 1994). In February 1991, the County Superintendent issued an order transferring the Decker District to Hardin.

Since 1991, the gross proceeds coal tax revenue from mines in the Decker District have been distributed to both Hardin and Lodge Grass. The Big Horn County treasurer has distributed a portion of the tax to Lodge Grass to cover bonded indebtedness, which Lodge Grass incurred while serving the Decker District.

Because no factual issues existed, the parties filed cross-motions for summary judgment. The District Court granted summary judgment in favor of Hardin, concluding that § 15-23-703(4), MCA(1991), required that the coal tax revenues be distributed to Hardin. Lodge Grass appeals and presents one issue:

Did the District Court err by concluding that § 15-23-703(4), MCA (1991), compelled the distribution of the Decker District’s gross proceeds coal tax revenues to Hardin?

Our standard of review on a grant of summary judgment is identical to that of the trial court. McNeil v. Currie (1992), 253 Mont. 9, 14, 830 P.2d 1241, 1244. Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. If no disputed factual issues exist, then we examine whether the court correctly interpreted the law. See McNeil, 830 P.2d at 1244; see also Andrews v. Ford Construction (1990), 241 Mont. 203, 205, 786 P.2d 18, 19.

Here, after a careful review of the record we conclude that no disputed issues of material fact exist. Thus, we must review whether the law was interpreted correctly.

It is well established that this Court, in construing a statute, will effectuate the statute’s legislative intent. State ex rel. Neuhausen v. Nachtsheim (1992), 253 Mont. 296, 299, 833 P.2d 201, 204. We first look to the plain meaning of the statute to determine legislative intent. Holly Sugar v. Dep’t of Revenue (1992), 252 Mont. 407, 412, 830 P.2d 76, 79. If the plain meaning of the statute is clear from the language, we apply the law as written by the legislature and look no further to determine the legislature’s intent. Neuhausen, 833 P.2d at 204.

Section 15-23-703(4), MCA (1991), provides in pertinent part:

Except as provided in subsections (5), (6), and (8), the county treasurer shall credit the amount determined under subsection (3) and the amounts received under 15-23-706:
(b) to school districts in the county that either levied mills in school fiscal year 1990 against 1988 production or used nontax revenue, such as Public Law 81-874 money, in lieu of levying mills against production, in the same maimer that property taxes collected or property taxes that would have been collected would have been distributed in the 1990 school fiscal year in the school district.

Lodge Grass contends that since the Decker District was within the Lodge Grass district in 1990, Hardin could not levy against Decker District mines in that year. Therefore, since Hardin did not levy against Decker District mines in 1990, § 15-23-703(4)(b), MCA(1991), precludes Hardin from ever receiving Decker District tax revenues. Lodge Grass argues that it is the only district entitled to receive coal taxes from the Decker District. This argument lacks merit.

A plain reading of the statute reveals that a school district only had to levy against 1988 production in 1990. We will not insert omitted terms into a statute. Neuhausen, 833 P.2d at 204. Section 15-23-703(4)(b), MCA (1991), did not require a school district in 1990 to levy against a specific territory in order to receive tax revenues from that territory. However, the statute did provide that if a school district levied against any mine in 1990, then that district was entitled to receive coal tax revenues.

Here, it is undisputed that Hardin levied against 1988 production in 1990 in the Hardin district. Although Hardin did not levy against Decker District mines in 1990, the plain language of § 15-23-703(4)(b), MCA (1991), confirms that Hardin was not required to levy against the specific Decker District mines in 1990. Instead, Hardin only had to levy against 1988 production in 1990. Since Hardin levied against 1988 production in 1990, we conclude Hardin was entitled to tax revenues from the Decker District. We now turn our attention to whether Hardin was entitled to the distribution of the Decker District coal tax revenues under § 15-23-703(4)(b), MCA (1991).

Section 15-23-703(4)(b), MCA (1991), provides that coal tax revenues are to be distributed the same as property tax revenues were distributed in 1990. Lodge Grass argues that this sentence should be interpreted to mean that Lodge Grass has a “grandfathered right” to the coal tax revenues from the Decker District. According to Lodge Grass, since it received the coal tax revenues from the Decker District in 1990, it has a “grandfathered right” to continue receiving this revenue from that territory even though the Decker District was subsequently transferred to Hardin.

When a territory is transferred from one district to another, § 15-23-703(4)(b), MCA (1991), is not clear on its face as to the coal tax distribution scheme. However, it is well established “[i]f intent cannot be determined from the content of the statute, we examine the legislative history.” State ex rel. Roberts v. Public Service Commission (1990), 242 Mont. 242, 246, 790 P.2d 489, 492.

In 1989, the legislature restructured both state and local property taxes in response to this Court’s ruling in Helena Elementary Sch. Dist. No. 1 v. State (1989), 236 Mont. 44, 769 P.2d 684, which declared the State’s system for funding public education unconstitutional. The legislature was concerned that the increase in mills from 45 to 55 would drastically affect coal producers. Thus, the State’s old method of taxing coal gross proceeds with a property tax was replaced with a “flat tax” of five percent on production. 1989 Mont. Laws Ch. 11, Section 77. After that law became effective, school districts were prohibited from levying a property tax against coal production. Instead, the school districts received the five percent “flat tax” revenues which were collected from the coal mines. In short, the “flat tax” replaced the property tax on coal production.

Hardin argues, and we agree, that the final clause of § 15-23-703(4)(b), MCA (1991), directs that the “flat tax” be distributed just as if a property tax on coal had been collected and in accordance with the property tax distribution schemes of 1990. Since § 15-23-703(4)(b), MCA (1991), refers directly to the 1990 property tax distribution scheme, we must examine the 1990 statutes which distributed property taxes. See Matter of W.J.H. (1987), 226 Mont. 479, 483-84, 736 P.2d 484, 486-87. Property taxes were distributed in 1990 by § 20-6-412, MCA (1989), which states:

The property tax valuation used under the provisions of 20-9-142 for the purposes of fixing the tax levies, except the debt service fund tax levy, for a district that has had a boundary change at any time before the second Monday in August shall include the property tax valuation of any territory added to the district by such boundary change or exclude the property tax valuation of any territory detached from, the district by such boundary change.

(Emphasis added.)

In this case, Hardin’s boundary changed when the Decker District was transferred to it. Thus, under the 1990 property tax scheme, Hardin would have been entitled to the property tax revenue from the Decker District after that territory was transferred to Hardin. See § 20-6-412, MCA (1989).

The “flat tax,” is distributed “in the same maimer that property taxes collected or property taxes that would have been collected would have been distributed in ... 1990 ....” Section 15-23-703(4)(b), MCA (1991), (emphasis added). Since Hardin would have been entitled to the Decker District coal property tax under the 1990 distribution scheme, § 15-23-703(4)(b), MCA(1991), distributes the 1991 “flat tax” against the Decker District mines to Hardin. We conclude that § 15-23-703(4)(b), MCA (1991), and § 20-6-412, MCA (1989), when read in conjunction, compel this Court to hold that Hardin was entitled to the distribution of the Decker District coal tax revenues in 1991.

Affirmed.

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