author: CHIEF JUSTICE TURNAGE JUSTICE GRAY, JUSTICE LEAPHART,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOSE DELOS SANTOS, II, Defendant and Appellant.
    No. 94-210.
    Submitted on Briefs July 28, 1995.
    Decided August 24, 1995.
    52 St.Rep. 865.
    902 P.2d 510.
    273 Mont. 125.

      For Appellant: Thomas J. Sheehy, Attorney at Law, Big Sandy; Lawrence A. LaFountain, Attorney at Law, Great Falls.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; John P. Connor, Jr., and Michael S. Wellenstein, Assistant Attorneys General, Helena; Dave Rice, Hill County Attorney, Havre.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

A jury in the District Court for the Twelfth Judicial District, Hill County, found Jose Delos Santos, II, guilty of felony theft and two counts of deliberate homicide. Santos appeals. We affirm.

The issues are:

1. Did the District Court err in finding Santos competent to stand trial?

2. Did the court err by admitting expert testimony elicited by the prosecution in violation of § 46-14-213(2), MCA?

3. Did the court err in refusing to allow the defense to play at trial certain videotapes of Santos?

4. Was Santos deprived of a constitutional right to an insanity-defense by the court’s refusal to give three jury instructions offered by the defense?

On the morning of March 4,1993, the bodies of Walter and Thelma Gebhardt were found in their home just west of Havre, Montana. They had each been hit repeatedly in the head with a blunt object while they slept. They were sixty-one and sixty-seven years old, respectively. A bloodstained claw hammer was found in their living room, and their 1984 El Camino was missing.

Several adult children of the Gebhardts had visited their parents the night before they were killed. Based upon their statements, local law enforcement authorities began looking for Jose Delos Santos, II.

Santos had been staying at the Gebhardts’home for several weeks. He had arrived in Havre by freight train, inadequately dressed for the winter weather, and knocked on the Gebhardts’ door. Although he was a complete stranger to them, the Gebhardts took him into their home. Santos was not at the Gebhardts’ home when their bodies were found, although he had been there the night before.

On March 5, 1994, Santos was apprehended outside Virgelle, Montana, in the Gebhardts’ El Camino. While he was being booked at the Chouteau County Jail, Santos said that he had changed the license plates on the El Camino and that he had killed the Gebhardts.

Santos subsequently gave a statement describing the murders in detail. He told the officers that he killed Walter Gebhardt because Walter had put him on the spot by asking him to show a picture of his girlfriend to visiting Gebhardt family members. He explained that he killed Walter by hitting him in the head with the claw hammer, and that he then killed Thelma by striking her with the hammer and choking her. He described burning documents which identified the owner of the El Camino and a pair of Walter’s pants in the Gebhardts’ living room fireplace “to destroy the evidence.” He described switching the rear license plate on the El Camino with one from another vehicle before leaving the Gebhardts’ home after the murders. He took with him his high school equivalency certificate, his birth certificate, food, clothing, and a letter from his girlfriend.

Prior to trial, Santos moved to be declared incompetent to stand trial. For purposes of that motion, he was examined by a psychiatrist on behalf of the State and a psychologist on behalf of the defense. After hearing the testimony of both experts and reviewing the written report prepared by the State’s psychiatrist, the court denied the motion.

The case was transferred to Cascade County for trial on a defense motion for change of venue. After a week-long trial at which the central issue was Santos’s mental state, a jury found him guilty on all charges. Santos appeals.

Issue 1

Did the District Court err in finding Santos competent to stand trial?

The standard for a district court’s decision on whether a criminal defendant is fit to proceed to trial is set forth at § 46-14-103, MCA:

A person who, as a result of mental disease or defect, is unable to understand the proceedings against the person or to assist in the person’s own defense may not be tried, convicted, or sentenced for the commission of an offense so long as the incapacity endures.

The trial court must determine “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” State v. Austad (1982), 197 Mont. 70, 78, 641 P.2d 1373, 1378, citing Dusky v. United States (1960), 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4L.Ed.2d 824, 825. This Court’s standard of review is whether substantial evidence supports the district court’s decision that the defendant was fit to proceed to trial. State v. Statczar (1987), 228 Mont. 446, 456, 743 P.2d 606, 613.

Santos’s attack on the District Court’s decision is based on the adequacy of the court’s findings rather than on the sufficiency of the evidence. Under the above standard of appellate review, however, we must look to the sufficiency of the evidence.

The State’s expert witness was Dr. William Stratford, a forensic psychiatrist. Before offering his opinion that Santos was competent to stand trial, Dr. Stratford conducted a thorough examination of Santos and submitted a detailed report on his competency. His examination included reviewing the sheriff’s reports, a police report, autopsy reports, witness interviews and statements, Santos’s interview with the arresting officers, and Santos’s Seattle police department rap sheet. He also reviewed Santos’s records from the Seattle Mental Health Institute and a summary of Santos’s contacts with a Seattle drop-in center. Dr. Stratford spoke by phone with Santos’s father. In addition, he conducted interviews with Santos over the course of two days and administered eighteen different tests to him.

Dr. Stratford reported that Santos was twenty-four years old and had been living as a “street person” in Seattle before he came to Montana. Dr. Stratford admitted that, to a lay person, Santos’s record may look bizarre. He stated, however, that the record revealed no clear-cut history of mental illness.

Dr. Stratford stated in his report that Santos has some intrusive paranoid ideas but that “it is also likely that much of the time he has learned to bring these issues up for effect knowing that they do influence health care examiners in general,” and “[h] e certainly is not above or incapable of lying about issues such as this and is motivated to go to a hospital and certainly not to a prison or jail.” At the hearing, Dr. Stratford stated, “I think it’s also important to indicate that I think Mr. Santos is capable of emphasizing points like that consciously to attempt to impress someone that he’s very disturbed.” He reported that Santos had obtained elevated results on a test he administered to detect malingering and deception.

Dr. Stratford concluded that Santos suffers from a schizotypal personality disorder as well as being chemically dependent. However, Santos did well on a test to determine his competency to relate to and cooperate with his attorney and to fully understand the nature and quality of the proceedings against him. Dr. Stratford concluded his report to the court by stating that he believed Santos was competent to stand trial.

Santos’s expert witness, psychologist Fredrick Wise, did not submit a written report to the court. His testimony at the competency hearing conflicted with that of Dr. Stratford in that Dr. Wise found Santos unresponsive and unable to comprehend what was going on. He concluded that Santos suffered from schizophrenia and was not fit to proceed to trial. Santos contends that the court erred in ignoring Dr. Wise’s testimony and in not attempting to reconcile or assess the positions of the two experts.

The testimony of one witness is sufficient to prove a fact. State v. Radi (1978), 176 Mont. 451, 462, 578 P.2d 1169, 1176. Additionally, the weight and credibility of witnesses are exclusively the province of the trier of fact. In the event of conflicting evidence, it is within the province of the trier of fact to determine which will prevail. State v. Flack (1993), 260 Mont. 181, 189, 860 P.2d 89, 94. In this instance, the trier of fact was the District Court.

Santos was able to discuss with Dr. Stratford his complete history, including the homicides. That ability cast doubt on Santos’s claims that he was not able to converse with his counsel, cooperate with his counsel, respond to his counsel’s questions, or recall facts. Santos was cooperative with Dr. Stratford, providing an array of information, including extensive information about the charged offenses. As the District Court noted at the competency hearing, there was no reason why Santos’s counsel could not also get the same information.

Dr. Stratford’s expert testimony and report clearly supported a finding that Santos was able to consult with and assist his counsel and that he had a rational as well as a factual understanding of the proceedings against him. We conclude that the District Court did not abuse its discretion in finding that Santos was fit to proceed to trial. We therefore affirm the court’s determination.

Santos also asserts that the court should have reassessed its competency determination because of evidence presented after the competency hearing. He cites Drope v. Missouri (1975), 420 U.S. 162, 181, 95 S.Ct. 896, 908, 43 L.Ed.2d 103, 119, concerning the court’s continuing obligation to be on guard for changes in a defendant’s competence throughout the trial.

Santos refers to a report by Dr. Jack Hornby, a psychiatrist who prescribed medication for him after the competency hearing. Santos claims Dr. Hornby stated he felt Santos was not competent to stand trial. That comment is not found in the copy of Dr. Hornby’s report provided to this Court. In his report, Dr. Hornby specifically noted that he had “not been asked to evaluate for competency.” Further, Dr. Hornby’s report was submitted to the court in support of a motion to continue the trial date to allow Santos additional time on his medication, not in connection with a determination of competency.

At the beginning of trial and at the close of the State’s case, the defense moved to be allowed to have Santos testify in connection with his competency to proceed. In denying these motions, the District Court pointed out that, at the competency hearing several weeks earlier, it had heard a tape-recording of Santos’s interview with Dr. Wise. The court also stated that it had been observing Santos during trial and that the proposed testimony would be self-serving. After reviewing the record, we conclude that no abuse of discretion has been shown in the denial of the motions to put Santos on the stand.

Santos also cites Dr. Wise’s trial testimony that he saw Santos after the medication was prescribed by Dr. Hornby and that although Santos was calmer and easier to keep on track in conversation, his thoughts were still very disordered. Dr. Wise gave examples of statements by Santos which he felt indicated a lack of the requisite mental state to stand trial. However, after reviewing the record, we conclude that Dr. Wise did not testify to any statements markedly different from those which he had previously reported at the competency hearing.

We conclude that Santos did not present additional evidence requiring the court to reverse its earlier decision that Santos was fit to proceed to trial. Accordingly, that claim is denied.

As a final argument under this issue, Santos points out that Dr. Stratford’s written report did not include a specific finding as to whether Santos was seriously mentally ill, as required under § 46-14-206(1)(b), MCA. This argument is raised for the first time on appeal. As such, we will not consider it. See State v. Arlington (1994), 265 Mont. 127, 151, 875 P.2d 307, 321.

Issue 2

Did the court err in admitting expert testimony elicited by the prosecution in violation of § 46-14-213(2), MCA?

Section 46-14-213(2), MCA, provides:

When a psychiatrist or licensed clinical psychologist who has examined the defendant testifies concerning the defendant’s mental condition, the psychiatrist or licensed clinical psychologist may make a statement as to the nature of the examination and the medical or psychological diagnosis of the mental condition of the defendant. The expert may make any explanation reasonably serving to clarify the expert’s examination and diagnosis, and the expert may be cross-examined as to any matter bearing on the expert’s competency or credibility or the validity of the expert’s examination or medical or psychological diagnosis. A psychiatrist or licensed clinical psychologist may not offer an opinion to the jury on the ultimate issue of whether the defendant did or did not have a particular state of mind that is an element of the offense charged.

The mental states which were an element of the offenses charged against Santos are “knowingly” and “purposely” as defined at § 45-2-101(33) and (58), MCA. In particular, “purposely” is defined under the statute and was defined for the jury in Instruction No. 23 as “[a] person acts purposely with respect to a result ... if it is the person’s conscious object to engage in that conduct or to cause that result.”

The first testimony challenged by Santos as violative of § 46-14-213(2), MCA, occurred on cross-examination of defense witness Dr. Wise. The prosecuting attorney asked Dr. Wise if he recalled Santos’s statements that he had taken the victims’ vehicle, had attempted to change the license plate and had driven the vehicle out of town. He then asked if Dr. Wise believed that Santos was “aware of where he was” and “aware of what he was doing” when he engaged in the described behavior. Dr. Wise replied that he assumed Santos did have such an awareness. The following colloquy then occurred:

Q. [Mr. Connor, the prosecuting attorney] At least by the defendant’s own words, those acts would certainly demonstrate a purpose of the defendant to carry out specific abilities, would they not?
A. [Dr. Wise] I would say that, yes.
Q. And they at least demonstrate a conscious objective on his part to engage in a particular form of conduct, do they not?
A. Yes.
Q. And that it was his purpose, by his own description, to cause a particular result; correct?
A. Based on the interview, yes.

Also, in rebuttal testimony, the prosecution asked its own expert, Dr. Stratford, whether “going out of the house, changing the license plates on the car and taking the car to another location” were indications of Santos’s capacity to act purposely or knowingly. Dr. Stratford answered that they were.

The State defends this line of questioning as not directly relating to Santos’s mental state during the homicides. However, in so arguing, the State overlooks the charge of theft of the El Camino. The elements of that charge were described to the jury in Instruction No. 20 as “[a] person commits the offense of theft if he purposely or knowingly obtains or exerts unauthorized control over property of the owner, and has the purpose of depriving the owner of the property.” Clearly, the above testimony relates directly to whether Santos possessed the requisite mental state of “knowingly” or “purposely” as to the theft of the El Camino. We conclude that the above testimony violated the § 46-14-213(2), MCA, prohibition as to the charge of theft of the El Camino.

Under § 46-20-104(2), MCA, this Court may review any error which necessarily affects the judgment. However, “[n]o cause shall be reversed by reason of any error committed by the trial court against the appellant unless the record shows that the error was prejudicial.” Section 46-20-701(1), MCA. The trial transcript before us exceeds 700 pages in length; much of it was conflicting testimony from Drs. Wise and Stratford. Overall, the evidence against Santos was overwhelming. On the record before us, we conclude that the erroneous admission of the above brief questions and answers constituted harmless error.

Santos also challenges the State’s questions to Dr. Stratford, which again occurred in rebuttal, as set forth below:

Q. [Mr. Connor] Doctor, without giving me specific instances, were the materials you read, in your professional opinion, replete with examples of conduct by the defendant which amounted to conscious deliberate behavior?
A. [Dr. Stratford] Yes, sir.
Q. And which amounted to conscious object to carry out particular actions?
A. That’s correct.

Santos further challenges Dr. Stratford’s comments on rebuttal concerning assessment of a person’s ability to act knowingly and purposely as grounds for reversal.

The basis for these challenges is the 1991 commission comment to § 46-14-213(2), MCA. The comment notes that the last sentence of the subsection was added by the 1991 Montana Legislature, and states:

[T]he statute contains an additional statement expressly barring an expert opinion before a jury on the ultimate issue of the defendant’s mental state or mental capacity.

The last portion of this comment, concerning mental capacity, goes beyond the language of the statute. Where a statute is clear on its face, a court is not to go beyond the facial language in interpreting the statute. Section 1-2-101, MCA; Lovell v. State Comp. Mut. Ins. Fund (1993), 260 Mont. 279, 285, 860 P.2d 95, 99. We decline to read into § 46-14-213(2), MCA, a prohibition on testimony by expert witnesses concerning a criminal defendant’s mental capacity. Questions and expert opinions on a criminal defendant’s mental capacity are not prohibited under the above statute; what the statute prohibits are expert opinions on the ultimate issue of whether the defendant actually possessed the requisite mental state at the time the offense was committed.

We believe that this narrow reading of the statute supports the purpose of expert testimony as an aid to the finder of fact, based upon the expert’s particular knowledge or experience, in determining the fact at issue. See Rule 702, M.R.Evid. The Supreme Court of Connecticut faced an analogous issue in State v. Forrest (Conn. 1990), 578 A.2d 1066. In that case, the issue was whether a mental health expert may give opinion testimony concerning a criminal defendant’s capacity for self-control. Loss of self-control was an element of the defense of extreme emotional disturbance, which was a factual question before the jury. In ruling that the expert could give an opinion on the defendant’s capacity for self-control, the court reasoned as follows:

[I]n construing [the statute] narrowly, we have assumed that the legislature enacted the statute to accomplish a reasonable and rational result. A broad construction of the statute, taken to its extreme, would arguably bar experts from fully testifying to their diagnoses of a defendant and to their resulting professional opinions, from which the jury could infer the defendant’s state of mind at the time of a particular act. Jurors would thus be left without adequate expert assistance in making an informed decision upon the ultimate issue of the defendant’s mental state, the precise issue expressly reserved to them by [the statute].

Forrest, 578 A.2d at 1070 (citations omitted). The above comments by the Connecticut Supreme Court are equally applicable to the question here before us. See also Vitauts M. Gulbis, Annotation, “Admissibility of expert testimony as to whether accused had specific intent necessary for conviction,” 16 A.L.R.4th 666 (1982).

The objection to questions and testimony on behalf of the prosecution concerning Santos’s capacity to form the requisite mental states must further be viewed in the context of prior defense questions. The defense asked its expert Dr. Wise whether Santos had the capacity to understand his actions, to always know what he is doing, to remember what he had done, and to act in an intentional or a conscious manner. As the State points out, the defense thereby opened the door to questions about Santos’s capacity to form the requisite mental state.

To recapitulate, we hold that the District Court erred in allowing expert testimony in violation of § 46-14-213(2), MCA, concerning Santos’s state of mind during the charged offense of theft of the Gebhardts’ El Camino. We conclude, however, that such error was harmless. As to the convictions of deliberate homicide, we hold that the court did not err in admitting expert testimony into evidence.

Issue 3

Did the court err in refusing to allow the defense to play at trial certain videotapes of Santos?

At trial, the defense proposed to play and introduce into evidence two videotapes of interviews of Santos which were made by defense counsel shortly after his arrest. The defense offered the videotapes as evidence of Santos’s mental state. The State objected on hearsay grounds. The defense then offered to have Santos take the stand for cross-examination. The court refused to admit the proposed evidence.

Santos argues that because the videotapes were not offered to prove the truth of the matters asserted therein, they did not fit the Rule 801(c), M.R.Evid., definition of hearsay — that is, they were not offered to show that Santos’s statements therein were true, but to show his poor state of mind.

Our standard of review on issues of admissibility of evidence is whether the district court abused its discretion. State v. Oman (1985), 218 Mont. 260, 263, 707 P.2d 1117, 1119. The State points out that, in rejecting the admission of the videotapes, the District Court noted that there were no safeguards to insure their integrity and that they were not staged by Santos. The probative value of the videotapes is suspect considering the circumstances under which they were made, including that Santos was not under oath. Their probative value is further limited in that they at best demonstrate Santos’s mental state several days after the offenses occurred, not at the time of the crimes. Yet further support for the court’s refusal to admit the tapes into evidence is Santos’s failure to comply with the discovery rule requiring disclosure of the tapes to the prosecution prior to trial. See § 46-15-323(6), MCA. We conclude that the District Court did not abuse its discretion by denying admission into evidence of the videotapes.

Issue 4

Was Santos deprived of a constitutional right to an insanity defense by the court’s refusal to give three jury instructions offered by the defense?

Santos offered three instructions to the jury which would have allowed him to rely upon an insanity defense. All three proposed instructions were refused by the District Court.

Montana law allows consideration of a defendant’s mental disease or defect at three stages of a criminal proceeding. First, prior to trial the defendant may be examined to determine whether he is able to understand the proceedings against him or to assist in his own defense. Section 46-14-103, MCA. Second, a defendant may introduce evidence of mental disease or defect at trial whenever it is relevant to prove that he did not have a state of mind which is an element of the offense charged. Section 46-14-102, MCA. Third, a defendant who has been convicted of a crime may claim during sentencing that at the time of the offense he was suffering from mental disease or defect which rendered him “unable to appreciate the criminality of [his] behavior or to conform [his] behavior to the requirements of law.” Section 46-14-311, MCA. Santos exercised all three of these options.

The constitutionality of the above statutory framework has been repeatedly upheld by this Court. There is no constitutional right to an insanity defense as expressed in the instructions proposed by Santos. See, State v. Cowan (1993), 260 Mont. 510, 861 P.2d 884, cert. denied, _ U.S. _, 114 S.Ct. 1371, 128 L.Ed.2d 48 (1994); State v. Byers (1993), 261 Mont. 17, 861 P.2d 860, cert. denied _ U.S. _, 114 S.Ct. 1380, 128 L.Ed.2d 55 (1994), reversed on other grounds, State v. Egelhoff (1995), [272 Mont. 114] 900 P.2d 260. We hold that the District Court did not err in refusing the three jury instructions offered by Santos concerning a defense of mental disease or defect.

The judgment of the District Court is affirmed.

JUSTICES HUNT, NELSON, WEBER and District Judge WHELAN concur.

JUSTICE GRAY,

specially concurring.

I concur in the Court’s opinion on issues 1, 3 and 4. I specially concur in that opinion on issue 2, because I agree with the result and much, but not all, of what is said therein.

Specifically, I agree that questions and answers regarding the defendant’s mental capacity are permissible. I also agree that questions and answers which cross the line from capacity to purpose are impermissible under § 46-14-213(2), MCA, which prohibits psychiatrists and clinical psychologists from offering an opinion on the ultimate issue of whether the defendant did or did not have the state of mind which is an element of the offense charged. Thus, where the mental state element necessary to prove the charge is — as it is in the case before us — “purposely,” no opinion can be given regarding whether the defendant acted with purpose. Since between three and five questions and answers of record violate the statutory prohibition against testimony on the ultimate issue of the defendant’s mental state, I agree with the Court that those answers were erroneously admitted.

I also agree that, under §§ 46-20-104 and 46-20-701, MCA, the admission of this evidence does not affect the judgment in this case. The trial transcript before us exceeds 700 pages in length; much of it is conflicting expert testimony from Drs. Wise and Stratford. Overall, the evidence against Santos was overwhelming. Thus, I join in concluding that, on the record before us, the erroneous admission of between three and five brief responses constitutes harmless error, without regard to whether it goes to the theft offense or the deliberate homicide charges.

In this latter regard, I disagree with the Court’s tying of the objectionable questions and answers to the vehicle theft, rather than to the homicides. To this extent, I agree with the dissent. This distinction is not raised by the State and, indeed, is superfluous to the Court’s analysis of this issue. Applying the controlling statutes correctly is a straightforward matter here: impermissible questions and answers were erroneously admitted into evidence but, given the overall record before us, the error is not reversible.

With regard to the dissent, I point out that most of the questions and answers quoted therein relate only to the discussion of the offense — whether theft or homicide — to which the questions related. That portion of the dissent does not, and could not correctly, suggest that all of the quoted questions and answers violate the statutory prohibition contained in § 46-14-213(2), MCA, against an expert opinion on the ultimate issue of whether Santos acted purposely or knowingly. It is clear from reading the transcript segment quoted by the dissent that only the last questions quoted could conceivably violate the statute.

I join the Court in affirming on all issues.

JUSTICE LEAPHART,

dissenting.

I concur in the Court’s opinion on issues 1, 3, and 4.1 dissent from the opinion on issue 2.

As heinous as this fact situation is, I am constrained to honor the dictates of the law as set forth in § 46-14-213(2), MCA, which states in part: “A psychiatrist or licensed clinical psychologist may not offer an opinion to the jury on the ultimate issue of whether the defendant did or did not have a particular state of mind that is an element of the offense charged.”

Santos was charged with deliberate homicide and felony theft. Both offenses require proof that he acted “knowingly” and “purposely.” The legislature has defined “purposely” as follows: “[a] person acts purposely with respect to a result ... if it is the person’s conscious object to engage in that conduct or to cause that result.” Section 45-2-101(58), MCA. It is thus clear that the Montana legislature has specifically stated that a psychiatrist or psychologist may not offer an opinion as to whether a defendant, when committing an act, acted knowingly, purposely or had a conscious object to engage in the conduct in question. There is no question but that in this case the prosecution elicited precisely this type of testimony from Dr. Wise with regard to Santos’ striking of Walter Gebhardt with a hammer and using a rope to stop Thelma Gebhardt from breathing.

The Court quotes two of the questions posed by the prosecutor to Dr. Wise in which the prosecution very pointedly asked whether certain acts “would demonstrate a purpose of the defendant to carry out specific abilities” and whether those acts would “demonstrate a conscious objective on his part to engage in a particular form of conduct....” The Court then suggests that these questions related to Santos’ theft of the vehicle rather than the homicides. The Court then concludes that, although the questions violated § 46-14-213(2), MCA, they were, in light of the overwhelming evidence, harmless error. However, when the questions are put in their full context, it is apparent that they related not only to the theft of the vehicle, but also to the homicides. As can be seen from the following excerpt of the transcript, Dr. Wise was asked to recall some very specific factual statements that Santos had made to Agent Scott in a written statement.

Q Do you recall reading at the end of the statement, and if you have it available and need to refresh your recollection, please do so, but I would recall or direct your attention particularly to pages 33 and 34 of the transcript of the statement that was given by the defendant to Agent Scott.
A The one I have goes up to 18.
Q Well, you may have — is it single spaced, Doctor?
A Maybe you can direct me to that statement.
Q I guess I’m talking about it’s on the end, whether it’s on may [sic] page 33 or your page 17 or whatever, where he makes a statement to agent Scott to the effect that he decided to take a particular action, he decided — he thought about it, he took a particular action by deciding to get the hammer and by going into Walter Gebhardt’s room and hitting him in the head with it.
A Yes.
Q And do you recall reading that portion of the tape where he said that he took the rope from the pulley that was above Thelma Gebhardt’s bed and used it to keep her from breathing earlier?
AI don’t remember the pulley, but I remember reading the rest of it.
Q Do you recall reading the part from that statement where he stated that he decided to take money from Mr. Gebhardt’s wallet?
AYes.
Q Do you recall reading from that statement the portions where he stated that after striking the Gebhardts in the head, he decided to bum stuff in the fireplace and he specifically decided to do that to get rid of evidence?
A Yeah. I don’t remember the words “specifically decided.” I do remember that he did that and he said that, told that in the interview.
Q Do you recall him explaining to deputy, or rather to Agent Scott that the reason he did that was to get rid of evidence?
AYes.
Q And do you recall him describing how he chose to take the car, to attempt to change the plates on it and to drive it out of town?
AYes.
Q So at that point in time, at least, the defendant was certainly aware of where he was; correct?
AYes.
Q He was aware of what he was doing; correct?
AI would assume that, yes.
Q And he was aware of who he was doing it to; correct?
A Are you talking about after the murder or before?
Q Well, I’m talking about his own statements to the agent about his conduct.
A Yeah, I would say just from those statements, I would refer that, yes.
Q At least by the defendant’s own words, those acts would certainly demonstrate a purpose of the defendant to carry out specific abilities, would they not?
AI would say that, yes.
Q And they at least demonstrate a conscious objective on his part to engage in a particular form of conduct, do they not?
AYes.
Q And that it was his purpose, by his own description, to cause a particular result; correct?
A Based on the interview, yes. [Emphasis added.]

Before asking Dr. Wise whether Santos’ acts demonstrated a “purpose” and a “conscious objective on his part to engage in a particular form of conduct,” the State prefaced the questions with certain facts — including the fact that Santos said he decided to get a hammer, that he went into Walter Gebhardt’s room and hit him in the head with the hammer and that he took a rope and used it to keep Thelma Gebhardt from breathing. In addition to the questions already discussed, the State also inquired of Dr. Wise whether these acts indicated that Santos was “aware of what he was doing” and was “aware of who he was doing it to.” Obviously the prosecutor’s questions related to more than just the theft of the El Camino vehicle.

It is hard to imagine a more blatant violation of the statutory prohibition against having a psychologist express an opinion as to the defendant’s state of mind at the time he is alleged to have committed a homicide. Here, the State was allowed to elicit testimony from a psychologist to the effect that Santos acted purposely and had a conscious objective when he hit Walter with the hammer and used a rope to prevent Thelma from breathing.

The State obviously felt it necessary to present expert testimony on the question of the defendant’s state of mind. Although I agree that more general questions as to the defendant’s “capacity” to have a particular state of mind are legitimate, the questions posed here went well beyond general “capacity” type questions. They went directly to the ultimate question of whether the defendant had the requisite state of mind at the time the offenses were committed. In light of the bizarre and gruesome behavior of this defendant, I do not see how such an error can be considered harmless. The clear provisions of § 46-14-213(2), MCA, give me no choice but to dissent.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. SHAWN MARTEL, Defendant and Appellant.
    No. 94-295.
    Submitted May 4, 1995.
    Decided August 24, 1995.
    52 St.Rep. 873.
    902 P.2d 14.
    273 Mont. 143.

      For Appellant: David E. Stenerson, Attorney at Law (argued), and Kirk Krutilla, Legal Intern, Hamilton.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Carol Schmidt, Assistant Attorney General (argued), Helena; James A. Haynes, Hamilton City Attorney, T. Geoffrey Mahar, Deputy City Attorney, Hamilton.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Shawn Martel was found guilty of misdemeanor stalking in Hamilton by a City Court jury. He appealed that conviction to the Twenty-First Judicial District Court, Ravalli County, where he was again found guilty following a bench trial. He appeals that conviction, claiming that Montana’s anti-stalking law, as set forth at § 45-5-220, MCA, is unconstitutionally vague and unconstitutionally over-broad. We affirm.

The following issues are raised on appeal:

1. Is § 45-5-220, MCA, unconstitutionally vague?

2. Is § 45-5-220, MCA, unconstitutionally over-broad?

3. Did the District Court ábuse its discretion when it denied defendant’s motion for a directed verdict?

In October 1992, C.K., a teller at a local bank, first became aware of appellant, a customer of the bank. When C.K. worked at the drive-through window, she noticed that appellant would drive by, wave, and smile. When she was at the grocery store or buying gas, appellant would greet her and initiate conversation. Appellant frequently asked C.K. if she would meet him at a motel. At one point, appellant informed C.K. that he would commit suicide if they could not be friends. From October 1992 through November 1992, appellant followed C.K. daily, including sitting next to C.K. and her husband, R.K., in a movie theater. After the couple moved their seats, appellant moved and sat next to them.

Following the movie theater incident, C.K. informed R.K. for the first time of appellant’s conduct. Thereafter, R.K. confronted appellant and asked him to leave his family alone. Several times on Christmas morning and once on New Year’s Eve, appellant called C.K’s home. During Christmas week, appellant pulled his vehicle behind and blocked off C.K’s vehicle while she was filling up at a gas station. Appellant displayed a handgun and informed C.K. that he had friends who would “take care of’ any efforts by C.K. to involve the police.

During January and February 1993, appellant followed C.K. less frequently than he had in the previous three months. However, in March 1993, after appellant increased his activity toward C.K., she filed a complaint against appellant. On March 25, 1993, the police warned appellant to stay away from C.K. and another woman. Appellant responded to the warning by following C.K. and circling her bank with increased frequency.

On April 9, 1993, Montana’s stalking statute, § 45-5-220, MCA, came into effect. Appellant’s conduct continued unchanged. In May 1993, C.K. and R.K. pulled into the parking lot of the Super 1 to rent a movie. Appellant and friends, who were in the adjacent Town Pump parking lot, began shouting profanities at C.K., made lewd gestures, and suggested that he and R.K. fight. C.K. and R.K. rented their movie without further incident and proceeded to drive down Route 93. Appellant, accompanied by a friend, followed R.K. and cut him off. R.K. decided to drive to the police station. Appellant followed their car to the police station. Once there, appellant and R.K. began shouting and scuffling at the front door of the police station. An officer came out of the station and restored order.

In May 1993, C.K. and R.K. applied for a temporary restraining order against appellant. Following a hearing in city court, the temporary restraining order was issued. Despite the temporary restraining order, appellant continued the pattern of his conduct toward C.K. and R.K.

On May 14, 1993, the Hamilton Deputy City Attorney charged appellant with assault under § 45-5-201(a), MCA, disorderly conduct under § 45-5-101(b), (c), and (f), MCA, and stalking under § 45-5-220, MCA. Ajury found appellant guilty of assault and stalking, but found him not guilty of disorderly conduct. Appellant appealed his conviction to the Twenty-First Judicial District Court. Appellant waived his right to a jury trial, and a trial was held de novo. Appellant filed a motion to dismiss the stalking charge arguing, that § 45-5-220, MCA, is void for vagueness and that it violates the due process provisions of the Montana and United States Constitutions. The District Court denied appellant’s motion, concluding that § 45-5-220, MCA, is not unconstitutionally vague. The District Court found appellant guilty of stalking and sentenced appellant to serve one year in the Ravalli County jail with all but 14 days suspended upon certain conditions. Appellant appeals his conviction.

STANDARD OF REVIEW

In an appeal of a criminal case, the evidence will be viewed in the light most favorable to the State. Whitefish v. O’Shaughnessy (1985), 216 Mont. 433, 437, 704 P.2d 1021, 1024. Further,

the standard of review for a trial court’s refusal to grant a defendant’s motion for a directed verdict 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.

State v. Mummey (1994), 264 Mont. 272, 276, 871 P.2d 868, 870.

Regarding the questions of constitutionality, statutes are presumed to be constitutional. Monroe v. State (1994), 265 Mont. 1, 3, 873 P.2d 230, 231; United States v. National Dairy Products Corp. (1963), 372 U.S. 29, 32, 83 S. Ct. 594, 597, 9 L. Ed. 2d 561, 565. Whenever possible, the Court will adopt statutory construction which renders challenged statutes constitutional rather than a construction which renders them invalid. State v. Ross (1995), 269 Mont. 347, 352, 889 P.2d 161, 164. When construing a challenged statute, the Court will read and interpret the statute as a whole, without isolating specific terms from the context in which they are used by the Legislature. Furthermore, a statute must be construed according to the plain meaning of the language in the statute. State v. Lilburn (1994), 265 Mont. 258, 266, 875 P.2d 1036, 1041, cert. denied (1995), _U.S. _, 115 S. Ct. 726, 130 L.Ed.2d 630. When the constitutionality of a statute is challenged, the party making the challenge bears the burden of proving the statute unconstitutional. Monroe, 873 P.2d at 231; GBN, Inc. v. Montana Dept. of Revenue (1991), 249 Mont. 261, 265, 815 P.2d 595, 597. Any doubt is to be resolved in favor of the statute. GBN, 815 P.2d at 597.

Section 45-5-220, MCA, provides as follows:

45-5-220. Stalking — exemption—penalty. (1) A person commits the offense of stalking if the person purposely or knowingly causes another person substantial emotional distress or reasonable apprehension of bodily injury or death by repeatedly:
(a) following the stalked person; or
(b) harassing, threatening, or intimidating the stalked person, in person or by phone, by mail, or by other action, device, or method.
(2) This section does not apply to a constitutionally protected activity.
(3) For the first offense, a person convicted of stalking shall be imprisoned in the county jail for a term not to exceed 1 year or fined an amount not to exceed $1,000, or both. For a second or subsequent offense or for a first offense against a victim who was under the protection of a restraining order directed at the offender, the offender shall be imprisoned in the state prison for a term not to exceed 5 years or fined an amount not to exceed $10,000, or both. A person convicted of stalking may be sentenced to pay all medical, counseling, and other costs incurred by or on behalf of the victim as a result of the offense.
(4) Upon presentation of credible evidence of violation of this section, an order may be granted, as set forth in 40-4-121, restraining a person from engaging in the activity described in subsection (1).
(5) For the purpose of determining the number of convictions under this section, “conviction” means:
(a) a conviction, as defined in 45-2-101, in this state;
(b) a conviction for a violation of a statute similar to this section in another state; or
(c) a forfeiture of bail or collateral deposited to secure the defendant’s appearance in court in this state or another state for a violation of a statute similar to this section, which forfeiture has not been vacated.
(6) Attempts by the accused person to contact or follow the stalked person after the accused person has been given actual notice that the stalked person does not want to be contacted or followed constitutes prima facie evidence that the accused person purposely or knowingly followed, harassed, threatened, or intimidated the stalked person.

ISSUE 1

Is § 45-5-220, MCA, unconstitutionally vague?

Appellant alleges that § 45-5-220, MCA, is so vague that it is unconstitutional. However, 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) whether it is vague as applied in a particular circumstance. Choteau v. Joslyn (1984), 208 Mont. 499, 505, 678 P.2d 665, 668. It is unclear which of these two specific challenges appellant is raising, so we will address each in turn.

A. Is the statute so vague it must be void on its face?

“ ‘[A] statute ... is void [for vagueness] on its face if it fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute.’ ” Monroe, 873 P.2d at 231 (quoting Choteau, 678 P.2d at 668). See also State v. Crisp (1991), 249 Mont. 199, 814 P.2d 981; State v. Woods (1986), 221 Mont. 17, 716 P.2d 624.

Appellant alleges that the statute is vague on its face because certain terms contained in it are not defined. Specifically, the statute does not define “repeatedly,” “harassing,” “intimidating,” “reasonable apprehension,” or “substantial emotional distress.” Without recourse to definitions, appellant argues, a person of ordinary intelligence would not be able to understand the statute.

The Legislature is not required to define every term it employs when constructing a statute. If a term is one of common usage, readily understood, it will be presumed that a reasonable person of average intelligence comprehends it. Contway v. Camp (1989), 236 Mont. 169, 173, 768 P.2d 1377, 1379. Words such as “repeatedly,” “harassing,” and “intimidating” have commonly understood meanings. “Repeatedly” means “more than once.” “Intimidate” means “to make timid; to frighten.” “Harass” means “to annoy repeatedly.” Webster’s Collegiate Dictionary, (10th Ed. 1993). A person of average intelligence would recognize and understand these terms without recourse to legislative definitions.

Appellant argues that the terms “reasonable apprehension” and “substantial emotional distress” are too vague because they employ a subjective standard, placing upon the defendant the burden of guessing how much distress is substantial or how much apprehension reasonable. We disagree. The standard to be employed when construing the statute is that of the “reasonable person.” When faced with the conduct complained of, would a reasonable person feel apprehension or substantial emotional distress? A reasonable person standard is an objective one.

Further, the term “substantial emotional distress” has been examined by this Court within the context of the tort of intentional infliction of emotional distress. First Bank-Billings v. Clark (1989), 236 Mont. 195, 771 P.2d 84. We found that the reasonable person standard was the most appropriate way of quantifying an abstract concept such as emotional distress. Such a standard is equally applicable here, and may be inferred from the language of the stalking statute.

The failure to include exhaustive definitions will not automatically render a statute overly vague, so long as the meaning of the statute is clear and provides a defendant with adequate notice of what conduct is proscribed.

The complainant attacking a statute’s validity must prove that the statute is vague “not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.”

Monroe, 873 P.2d at 231 (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 495, n.7, 102 S. Ct. 1186, 1191, n.7 71 L. Ed. 2d 362, 369) (citation omitted). “The fact that a statute is difficult to apply to some situations does not render it unconstitutionally vague.” Monroe, 873 P.2d at 231.

B. Is the statute void for vagueness as applied to this defendant?

[14] Appellant also argues that the statute is too vague as it applies to him, because it punished him for conduct which is constitutionally protected. However, appellant makes no showing that conduct such as repeatedly following and calling a person or pretending to shoot her is constitutionally protected. Indeed, the District Court asked appellant to explain why he believes such conduct to be constitutionally protected. Appellant now argues that such a question unfairly shifts the burden of proof to him. In fact, it does not. As noted above, the person challenging the constitutionality of a statute has the burden of proving it is unconstitutional. Appellant cannot prove the statute unconstitutional merely by alleging that it infringes on constitutionally protected rights, without any factual showing of which rights are infringed, or how.

Further, the criminality of this particular offense rests not on the fact that a defendant has followed a particular course of conduct, which, if embarked upon once, might not be objectionable. The criminality of the offense arises when a defendant engages in such conduct repeatedly, purposely or knowingly causing another person substantial emotional distress or reasonable apprehension of bodily injury. Without such mental state, a charge under the statute must fail.

The United States Supreme Court has long recognized that the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea. Colautti v. Franklin (1979), 439 U.S. 379, 395, 99 S. Ct. 675, 685, 58 L. Ed. 2d 596, 609. The Court has recognized that the requirement of a mental state to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid. Screws v. United States (1945), 325 U.S. 91, 101, 65 S. Ct. 1031, 1035, 89 L. Ed. 1495, 1502-03.

In the case at bar, both the Hamilton City Court and the District Court found that appellant followed and harassed his victim repeatedly, and by so doing, intentionally caused her to suffer substantial emotional distress. Moreover, and contrary to appellant’s' argument, the law does not require that a victim manifest specific physical symptoms, such as sleeplessness or nausea, in order for the State to prove substantial emotional distress. The victim testified that she became frustrated, upset, angry, and scared because of appellant’s repeated actions, and the District Court found that she had, in fact, suffered substantial emotional distress.

When read in the light most favorable to the State, the record more than justifies such a finding. Each element of the offense, including the required mental state, is set out with adequate specificity. We hold that the statute is not unconstitutionally vague either on its face or as applied in this case.

ISSUE 2

Is § 45-5-220, MCA, unconstitutionally over-broad?

Appellant next argues that the stalking statute is unconstitutionally over-broad.

An over-broad statute is one that is designed to burden or punish activities which are not constitutionally protected, but the statute includes within its scope activities which are protected by the First Amendment.

Hill v. City of Houston (5th Cir. 1985), 764 F.2d 1156, 1161, cert. denied (1987), 483 U.S. 1001, 107 S. Ct. 3222, 97 L. Ed. 2d 729.

Because an unconstitutionally over-broad statute could potentially adversely affect many citizens, a defendant who raises such a challenge need not meet the usual standing requirements. Broadrick v. Oklahoma (1973), 413 U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830. “'[T]here must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.’ ” Lilburn, 875 P.2d at 1041 (quoting Members of the City Council v. Taxpayers for Vincent (1984), 466 U.S. 789, 800-01, 104 S. Ct. 2118, 2126, 80 L. Ed. 2d 772, 783-84).

An overbreadth challenge is “an exception to the general rule that statutes are evaluated in light of the situation and facts before the court.” State v. Lilburn, 875 P.2d at 1036. Further,

The Court in Broadrick adopted limitations on the overbreadth doctrine “particularly where conduct and not merely speech is involved,” and held that a statute which has constitutional applications may be facially invalidated for overbreadth only if its overbreadth is “real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.”

Lilburn, 875 P.2d at 1040 (quoting Broadrick, 413 U.S at 615, 93 S. Ct. at 2918).

In this case, it is conduct, and not merely speech, which is proscribed by the statute. In addition, the statute serves a plainly legitimate purpose — to discourage the repeated, intentional, harmful conduct which constitutes stalking. Therefore, in order to prove that the statute is unconstitutional, appellant must show that the alleged overbreadth is both “real” and “substantial,” not just to himself, but to others as well. But appellant makes no specific argument of how any constitutionally protected First Amendment activities have been infringed upon by this statute, or how the statute might adversely affect the rights of others in a way that is both real and substantial. Appellant has not shown that any of his — or anyone’s — constitutional rights have been violated at all, let alone violated so grievously as to justify voiding the statute. Therefore, his overbreadth argument must fail.

ISSUE 3

Did the District Court err when it denied appellant’s motion for a directed verdict?

The standard of review for determining whether a district court erred in denying a defendant’s motion for directed verdict is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the essential elements of the crime beyond a reasonable doubt. Mummey, 871 P.2d at 870.

Section 45-5-220(2), MCA, reads “[t]his section does not apply to a constitutionally protected activity.” Appellant argues that, because the State did not prove that his conduct was not constitutionally protected, it has failed to prove an essential element of the crime.

Appellant misreads the statute. The elements of the crime are set out in § 45-5-220(1), MCA. Subsection (2) of the statute represents an attempt by the Legislature to avoid potential constitutional problems, such as attempts to enforce the statute against investigative reporters or people walking a picket line. However, the Legislature recognized that they could not create a “laundry list” of all activities that are constitutionally protected. Instead, they inserted this section to reflect their intention that any constitutionally protected activity be exempted. It is not an element of the crime of stalking. The District Court found that the State proved, beyond a reasonable doubt, that appellant violated all the elements of the offense. This determination is supported by the record and will not be disturbed.

Affirmed.

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


author: JUSTICE GRAY JUSTICE TRIEWEILER JUSTICE NELSON

text:
    THE STATE OF MONTANA, by and through its DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES, Petitioner and Respondent, v. SHODAIR HOSPITAL, Respondent and Appellant.
    No. 93-617.
    Submitted on Briefs March 9, 1995.
    Decided August 25, 1995.
    52 St.Rep. 879.
    902 P.2d 21.
    273 Mont. 155.

      For Appellant: John F. Sullivan; Hughes, Kellner, Sullivan & Alke, Helena.
    For Respondent: Gregory G. Gould, Special Attorney General, Department of Social and Rehabilitation Services, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Shodair Hospital (Shodair) appeals from an order of the First Judicial District Court, Lewis and Clark County, reversing a decision of the Board of Social and Rehabilitation Services Appeals (Board) which awarded Shodair medicaid reimbursement for a patient’s hospitalization and reinstating the hearing examiner’s decision which denied reimbursement. We affirm.

We restate the issues on appeal as follows:

1. Did the District Court err in rejecting the Board’s finding that Shodair had met the Medicaid Inpatient Psychiatric Services manual criteria?
2. Does substantial evidence support the hearing examiner’s finding that Shodair failed to meet the MIPS manual criteria?
3. Does compliance with the MIPS manual criteria equate to a “significant danger” to the patient or others determination under § 46.12.590(2)(k), ARM (1991), thereby entitling a treatment provider to medicaid reimbursement for a patient’s treatment?
4. Does substantial evidence support the hearing examiner’s finding that Shodair was not entitled to medicaid reimbursement for D.B.B.’s inpatient psychiatric care because it failed to demonstrate that D.B.B. posed a significant danger to herself, others, or the public safety as required by § 46.12.590(2)(k), ARM (1991)?
5. Was D.B.B.’s treatment at Shodair “medically necessary” under § 46.12.102(2), ARM (1991)?

Issues three through five are dependent on a determination of error on issue two. Thus, our holding below that substantial evidence supports the hearing examiner’s finding that Shodair failed to meet the MIPS manual criteria is dispositive and we need not address the remaining issues.

Factual and Procedural Background

D.B.B., a sexually, physically, and emotionally abused eight-year-old girl, was admitted to Shodair on August 8, 1991, for inpatient psychiatric treatment of post-traumatic stress disorder. D.B.B. was discharged from Shodair to a foster home on September 19, 1991. Shodair applied to the Department of Social and Rehabilitation Services Medicaid Services Division (SRS) seeking medicaid reimbursement for D.B.B.’s treatment. SRS reimbursed Shodair for inpatient treatment provided to D.B.B. from August 8, 1991, through August 23, 1991. It denied reimbursement for the later portion of D.B.B.’s treatment, based on its determination that inpatient services were not medically necessary during that time. This case involves Shodair’s effort to obtain reimbursement from SRS under the state medicaid inpatient psychiatric services program for the later portion of D.B.B.’s inpatient treatment.

Pursuant to 42 U.S.C.A. § 1396a(30)(A) (West Supp. 1995), states are required to implement procedures regarding the utilization of, and reimbursement for, services rendered under a state medical assistance plan; the purpose of the procedures is to protect against unnecessary use of services and “assure that payments are consistent with efficiency, economy, and quality of care.” One aspect of such a state plan is the creation of “a statewide surveillance and utilization control program” that, among other things, must safeguard against excess medicaid payments. 42 C.F.R. § 456.3(a) (1994). SRS is the state agency responsible for creating and managing the utilization program to “ensur[e] that services provided through the medicaid program are ... consistent with both state and federal laws, rules, and regulations establishing the conditions of reimbursement.” Section 46.1.101(2)(c)(iii), ARM.

Section 46.12.590(3), ARM (1991), authorizes medicaid reimbursement for hospital inpatient psychiatric care if a person’s psychiatric condition “pose[s] a significant danger to self, others, or the public safety.” Section 46.12.590(2)(k), ARM (1991). The treatment must be provided under the direction of a physician and must be designed to discharge the patient to a less restrictive setting as soon as possible. Section 46.12.590(2)(k), ARM (1991).

SRS contracted with Mental Health Management of America (MHMA) to develop and implement a utilization management program to review inpatient psychiatric treatment services provided to medicaid recipients under the age of 21 pursuant to the Montana Medicaid Inpatient Psychiatric Services Under 21 program (MIPS). Pursuant to the contract, MHMA developed a MIPS manual for use by reviewers of medicaid reimbursement claims under the program. The manual, which was distributed to inpatient psychiatric treatment providers, including Shodair, contained criteria relating to reimbursement for hospital inpatient psychiatric treatment. The listed criteria require treatment providers to demonstrate, with regard to a patient’s inpatient psychiatric treatment, that they have: (1) diagnosed the patient as having an Axis I mental disorder delineated in the Diagnostic and Statistical Manual Third Edition-Revised (DSM-III-R); (2) obtained a DSM-III-R Axis V rating of 50 or less regarding the patient’s functional level; (3) developed a description of the treatment and discharge plan; and (4) identified and documented one of four specific problem areas.

In this case, SRS initially denied reimbursement for the later portion of D.B.B.’s inpatient treatment at Shodair. Shodair requested, and received, a “fair hearing” pursuant to § 46.12.1210(2), ARM (1991), after which the hearing examiner issued extensive findings of fact, conclusions of law and an order denying reimbursement. The hearing examiner determined that Shodair did not meet the MIPS manual criteria relating to reimbursement for hospital inpatient psychiatric treatment.

Shodair appealed to the Board, which summarily reversed the hearing examiner’s decision. The Board found that, based on the “undisputed facts” of record, Shodair had met the MIPS manual criteria as a matter of law and that satisfying those criteria also satisfied the “significant danger” requirement contained in § 46.12.590(2)(k), ARM (1991). As a result, the Board determined that Shodair was entitled to medicaid reimbursement for the later portion of D.B.B.’s inpatient psychiatric treatment.

SRS petitioned for judicial review of the Board’s decision. The District Court concluded that the hearing examiner had impliedly, and correctly, determined that Shodair failed to satisfy one of the MIPS manual criteria relating to reimbursement for hospital inpatient psychiatric treatment. The court also concluded that the Board erred in summarily rejecting the hearing examiner’s findings and in determining that meeting the MIPS criteria was sufficient to establish that a patient poses a “significant danger” under § 46.12.590(2)(k), ARM (1991). The District Court reinstated the hearing examiner’s decision denying medicaid reimbursement for D.B.B.’s treatment at Shodair from August 23 to September 19,1991. Shodair appeals.

1. Did the District Court err in rejecting the Board’s finding that Shodair had met the Medicaid Inpatient Psychiatric Services manual criteria?

Shodair contends that the District Court erred in reinstating the hearing examiner’s decision denying Shodair medicaid reimbursement. It argues that the Board correctly rejected the hearing examiner’s findings and conclusions and awarded Shodair reimbursement for D.B.B.’s stay. SRS argues that the Board did not comply with § 2-4-621(3), MCA. The District Court determined that the Board violated § 2-4-621(3), MCA, and we agree.

Section 2-4-621(3), MCA, prohibits the Board from rejecting or modifying the hearing examiner’s findings of fact unless it states with particularity that the findings were not based on competent substantial evidence. Nowhere in the Board’s brief order does it reject or modify any of the hearing examiner’s extensive findings, much less state with particularity that the finding or findings were not based on competent substantial evidence. Instead, the Board summarily reversed the hearing examiner’s decision, stating that it “finds that based on undisputed facts in the record,” Shodair met the MIPS manual criteria as a matter of law.

The purpose of § 2-4-621(3), MCA, as is the case with many of this Court’s standards of review, is to prevent a reviewing body from substituting its judgment for that of the factfinder. Here, the Board’s order merely substitutes its judgment for that of the hearing examiner with regard to findings of fact; in doing so, the Board violated § 2-4-621(3), MCA.

Section 2-4-704(2)(a)(vi), MCA, authorizes a reviewing court to reverse the Board’s decision if it was “arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion[.]” A rejection of a hearing examiner’s findings in violation of § 2-4-621(3), MCA, constitutes an abuse of discretion under § 2-4-704(2)(a)(vi), MCA. Brander v. Mont. Dep’t of Institutions (1991), 247 Mont. 302, 308, 806 P.2d 530, 533.

Thus, we conclude that, in violating § 2-4-621(3), MCA, the Board abused its discretion. We further conclude, on that basis, that the District Court did not err in reinstating the hearing examiner’s extensive finding of fact for purposes of judicial review.

2. Does substantial evidence support the hearing examiner’s finding that Shodair failed to meet the MIPS manual criteria for hospital inpatient psychiatric treatment?

Shodair and SRS disagree regarding whether satisfying the MIPS manual criteria also suffices to meet the “significant danger” requirement of § 46.12.590(2)(k), ARM (1991), and the “medical necessity” requirement of § 46.12.102(2), ARM (1991), for medicaid reimbursement as a matter of law. It is undisputed, however, that a provider of inpatient psychiatric services must satisfy the four criteria contained in the MIPS manual to establish entitlement to medicaid reimbursement for an individual’s inpatient psychiatric treatment.

The parties do not dispute that Shodair established, and the hearing examiner correctly found, that D.B.B.’s condition met three of the four MIPS manual criteria. They disagree on whether Shodair met the fourth criterion of identifying and documenting a listed problem area; specifically, whether Shodair established the problem area entitled “Impaired Safety: Threat to Self or Others.” Under the MIPS manual, the Impaired Safety problem area consists of three components: (1) verbalization or gestures of intent to harm self or others, caused by a mental disorder; (2) threats accompanied by depressed mood, recent loss, recent suicide attempt or gesture, or concomitant substance abuse; and (3) verbalization escalating in intensity, or verbalization of intent accompanied by gesture or plan. Each of the components must be established in order to satisfy the fourth MIPS manual criterion.

A. Implied Finding

This Court has adopted the doctrine of implied findings for purposes of reviewing findings of fact. Interstate Brands Corp. v. Cannon (1985), 218 Mont. 380, 384, 708 P.2d 573, 576. That doctrine provides that where the “findings are general in terms, any findings not specifically made, but necessary to the [determination], are deemed to have been implied, if supported by the evidence.” Interstate Brands, 708 P.2d at 576 (citations omitted). We apply the doctrine only if the implied findings are consistent with express findings. Interstate Brands, 708 P.2d at 576.

For the most part, the hearing examiner addressed the components of the Impaired Safety problem area in a systematic manner. With regard to the first component, the hearing examiner expressly found that D.B.B. had verbalized an intent to harm both others and herself and that these threats were probably caused by her mental disorder. Under the second component, relating to the patient’s recent loss, the hearing examiner found that D.B.B.’s threats were accompanied by “the recent loss of her family ... loss of self and loss of self-esteem.”

The third component is comprised of two alternatives: the patient’s verbalization of intent to harm self or others must be accompanied by gestures or plans or escalating in intensity. The hearing examiner expressly found that the record did not support a finding that D.B.B.’s verbalizations of intent to harm herself or others were accompanied by gestures or plans or a finding that verbalizations of intent to harm herself escalated in intensity. Shodair does not dispute the finding related to verbalizations accompanied by gesture or plan and, for purposes of appeal, has conceded that the record does not support a finding that D.B.B.’s verbalizations of intent to harm herself had escalated in intensity. Thus, the only portion of the third component of the Impaired Safety problem area at issue is whether D.B.B.’s verbalizations of intent to harm others escalated in intensity.

The hearing examiner did not make an express finding regarding the “escalating in intensity” factor. She continued her discussion regarding the third component by finding that D.B.B. had harmed peers, including one incident which could have posed a danger, but that Shodair’s treatment after the incident rendered the event insignificant. She also found that D.B.B. did not have a serious intent to harm and that she was not frequently violent. Shodair does not challenge these express findings. The hearing examiner concluded by finding that “[criterion] (4) of the Department’s criteria for hospital inpatient psychiatric treatment has not been met.”

The hearing examiner made systematic, express, and undisputed findings that the first two Impaired Safety problem area components had been established and that portions of the third component had not been established. Those express findings, together with her finding that Shodair failed to establish the fourth MIPS manual criterion, permitted the District Court to determine that the hearing examiner had necessarily found that the escalating in intensity portion of the third component had not been established, if such a finding is supported by the evidence. See Interstate Brands, 708 P.2d at 576. This is so because the finding that D.B.B.’s verbalizations were not escalating in intensity was necessary for the examiner’s ultimate finding that the MIPS manual criteria were not met. Moreover, the implied finding is entirely consistent with the express findings made by the hearing examiner and with the general finding that Shodair failed to meet the fourth MIPS manual criterion. See Interstate Brands, 708 P.2d at 576. Thus, all that remains is to determine whether the implied finding is supported by substantial credible evidence.

B. Substantial Evidence

An implied finding must be not only necessary to the judgment, but also supported by the evidence. Interstate Brands, 708 P.2d at 576. When reviewing an administrative agency’s findings of fact, courts defer to the agency’s findings unless they are clearly erroneous. Section 2-4-704(2)(a)(v), MCA; Westmoreland Resources v. Dep’t of Revenue (1994), 263 Mont. 303, 310, 868 P.2d 592, 596. Generally, findings of fact are not clearly erroneous if they are supported by substantial credible evidence. Westmoreland Resources, 868 P.2d at 596. Substantial evidence must be more than a scintilla, but may be less than a preponderance, of evidence. Miller v. Frasure (1991), 248 Mont. 132, 137, 809 P.2d 1257, 1261.

Both Shodair’s records of D.B.B.’s hospitalization and expert testimony at the hearing provide substantial evidence supporting the implied finding that D .B .B ,’s intent to harm others was not escalating in intensity. D.B.B.’s hospitalization records documented that in forty-three days of hospitalization, she was involved in five or six disputes with staff members or peers. These incidents involved yelling obscenities at a staff member, “invading another peer’s space,” discussion of how she feared she would kill someone if she returned home, and shoving a peer during an activity. The medical records establish that D.B.B.’s physical conflicts were infrequent and that she had not seriously injured an individual.

In addition, Dr. Larry Osborn (Osborn) testified that, based on his review of the medical records, Shodair failed to document that D.B.B. had verbally threatened or promised to hurt someone and did not demonstrate how any of D.B.B.’s verbalizations escalated in intensity. He opined that, although D.B.B.’s recreation often contained some violent aspect, nothing in the record confirmed that she took the initiative or had the means to hurt her peers. He also suggested that the record supported a conclusion that D.B.B. learned not to express her anger in an inappropriate manner, such as hitting an individual, but to redirect her anger in a positive manner by punching pillows or taking “time out.” In Osborn’s opinion, nothing in D.B.B.’s medical record established that D.B.B. was impulsive, violent, or dangerous to others.

The record contains substantial credible evidence supporting a finding that Shodair failed to establish that D.B.B.’s verbalizations of intent to harm others escalated in intensity and, therefore, failed to establish the third Impaired Safety component. Such a finding is consistent with the hearing examiner’s findings — not disputed here — that D.B.B. lacked serious intent to harm and was not frequently violent and with her general express finding that Shodair failed to meet the fourth MIPS manual criterion.

Shodair relies on other evidence of record to support its position that D.B.B.’s verbalization of intent to harm others increased in intensity. “We will not substitute our judgment for that of the [fact finder] even where there is evidence in the record to support contrary findings.” Estate of Alcorn (1994), 263 Mont. 353, 360, 868 P.2d 629, 633. Thus, we decline to review Shodair’s citations to the record and to determine whether that evidence supports the finding Shodair advocates.

We conclude that the District Court did not err in determining that the hearing examiner had impliedly found that Shodair did not establish the “escalating in intensity” component and that the implied finding was supported by substantial credible evidence and was not clearly erroneous. We further conclude that the hearing examiner did not err in determining, on that basis, that Shodair failed to meet the MIPS manual criteria. We hold, therefore, that the District Court did not err in reinstating the hearing examiner’s decision which denied Shodair medicaid reimbursement for the later portion of D.B.B.’s inpatient psychiatric treatment.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, WEBER and District Judge MIZNER concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

What is notably absent from the hearing examiner’s decision, the District Court’s decision, or the majority opinion, is any mention of the enabling statute pursuant to which medical services are reimbursed by the Medicaid program. While I do not disagree with the majority’s analysis of the evidence in this case as applied to the nearly indecipherable MIPS criteria, I do conclude that the Administrative Rule pursuant to which those criteria were developed was neither consistent with nor reasonably necessary to effectuate the purpose of its enabling statute, and therefore, was ineffective. For these reasons, I would reverse the decision of the District Court and remand to the hearing examiner for consideration of the evidence as applied to the only true requirement for Medicaid reimbursement which is established by statute.

The enabling statute for the Administrative Rules relied on by the department, the hearing examiner, the District Court and the majority is set forth at § 53-6-101, MCA, which provides as follows:

(1) There is a Montana medicaid program established for the purpose of providing necessary medical services to eligible persons who have need for medical assistance. The Montana medicaid program is a joint federal-state program administered under this chapter and in accordance with Title XIX of the federal Social Security Act (42 U.S.C. 1396, et seq.), as may be amended. The department of social and rehabilitation services shall administer the Montana medicaid program.
(2) Medical assistance provided by the Montana medicaid program includes the following services:
(а) inpatient hospital services;
....
(3) Medical assistance provided by the Montana medicaid program may, as provided by department rule, also include the following services:
....
(k) inpatient psychiatric hospital services for persons under 21 years of age;
....
(б) The services provided under this part may be only those that are medically necessary and that are the most efficient and cost-effective.

(Emphasis added.)

In other words, the Department may, by departmental rule, decide whether or not services for inpatient psychiatric care are reimbursed. However, the criteria for reimbursement are established by subparagraph (6) and provide only two requirements:

(1) that the services be medically necessary, and
(2) that they be the most efficient and cost-effective means of treatment.

Rule 46.12.590, ARM (1990), upon which the hearing examiner’s decision is based and pursuant to which that decision was affirmed by this Court was enacted pursuant to § 53-6-101(3)(k), MCA. However, it adds to the statutory criteria an additional requirement for reimbursement of inpatient psychiatric services. It provides in sub-paragraph (k):

“Hospital inpatient psychiatric care” means hospital based active psychiatric treatment provided under the direction of a physician. The individual’s psychiatric condition must be of such a nature as to pose a significant danger to self, others, or the public safety, or one which has resulted in marked psychosocial dysfunction or grave disability of the individual. The therapeutic intervention or evaluation must be designed to achieve the patient’s discharge from inpatient hospital status to a less restrictive environment at the earliest possible time.

(Emphasis added.)

The underlined portion of subparagraph (k) adds an additional requirement to the statutory requirements for reimbursement of in-patient psychiatric care. It is, therefore, inconsistent with its enabling statute and is unenforceable.

In Michels v. Department of Social and Rehabilitation Services (1980), 187 Mont. 173, 177-78, 609 P.2d 271, 273, we stated that:

Whatever force and effect the regulation has must derive from the statute under which it is enacted, and a regulation in conflict with that statute is without effect. See, 2 Am. Jur. 2d Administrative Law § 289, and Bell v. Department of Licensing (1979), 182 Mont. 21, 594 P.2d 331, 36 St. Rep. 880. “It is axiomatic that a statute cannot be changed by administrative regulation.” State ex rel. Swart v. Casne (1977) 172 Mont. 302, 308, 564 P.2d 983, 986.

Likewise, in Bick v. State, Department of Justice (1986) 224 Mont. 455, 458-59, 730 P.2d 418, 421, we held that:

A valid rule must meet both prongs of a two-prong test to determine whether or not it harmonizes with its enabling legislation. It must not engraft additional and contradictory requirements on the statute, and it must not engraft additional non-contradictory requirements on the statute which were not contemplated by the legislature. Bell v. Department of Licensing, supra, 182 Mont. at 23, 594 P.2d at 333. The rule also must be reasonably necessary to effectuate the purpose of the statute. Board of Barbers of the Department of Professional and Occupational Licensing v. Big Sky College (Mont. 1981), 626 P.2d 1269, 1270, 38 St. Rep. 621, 623.

The requirement by Administrative Rule that an individual’s psychiatric condition pose a significant danger to herself or others before she is entitled to reimbursement for inpatient psychiatric care en-grafts an additional requirement on its enabling statute. That additional requirement is, therefore, without effect.

There is considerable cause for concern that had the hearing examiner, the District Court, and the majority of this Court not focused completely on the administrative requirement of “significant danger,” and instead, focused simply on the statutory requirement that hospitalization be “medically necessary,” the outcome in this case may have been different.

I note, for example, that the hearing examiner found that, prior to her hospitalization, D.B.B. had digressed into fantasy and was having nightmares; sexually acted out at school' with her friends; was observed on the playground trying to call up the devil; and had been followed in out-patient therapy for the previous two years. As a result of sexual abuse by her uncle and emotional abuse by her father, she was diagnosed as suffering from post-traumatic stress disorder. Three mental health professionals recommended that she be placed in inpatient treatment. At the time that SRS concluded that hospitalization was no longer medically necessary, D.B.B. was being treated for anger, depression, and oppositional behavior. She had frequent mood swings, decreased self-esteem, felt overwhelmed by her environment, and she felt worthless, helpless, and hopeless. She suffered from flashbacks and disruptive recollections of past events of sexual abuse, she experienced dissociative episodes, outbursts of anger and aggression, marked difficulty concentrating, play themes consisting of violence, avoided dealing with feelings, was unable to express feelings openly, and she was overly anxious.

Those health care providers from Shodair who treated D.B.B. testified, according to the hearings examiner:

[H]ow critical it was that [D.B.B.] have a continuity of care with time for relationships of trust and confidence to develop. Shodair provides it would have been counterproductive to have allowed [D.B.B.] to stay at Shodair only two weeks and then transfer her to a residential treatment facility.

The hearing examiner also agreed with Shodair that:

[U]nlike MHMA reviewers or Dr. Osborne, the Shodair staff dealt directly with [D.B.B.] and, therefore, knows a good deal more about the child than the MHMA reviewers. ...

Finally, the following entries from D.B.B.’s medical records made during the period in question suggest that, at a minimum, continued inpatient treatment was “medically necessary”:

08/29 During play therapy DBB played with puppets and a baby doll. The puppets tucked the baby in bed, but one puppet made too much noise and woke the baby. The puppet then had to be killed and was buried in the sand and left there. Shodair Exhibit I, entry for 8/29. Cheryl Ronish, DBB’s primary therapist and a master’s degree social worker, testified that: “[A] violent theme ran through all of [DBB’s] play. Often she would be the victim and then she would switch to be the victimizer, people were hurt, usually the puppets or her. ...” Hearing Transcript, p. 309.
08/31 During activities therapy, DBB continued to exhibit swings in mood. She was having difficulty with her feelings, but was unable to put words to those feelings. DBB needed redirection in all areas and discontinued activities after participating for only a few minutes. Shodair Exhibit J, entry for 8/31. On the same day DBB expressed anger and used foul language with the nursing staff. DBB stated she did not want to go home and stated that she feared she would kill someone if she returned home. DBB told the nursing staff, “I’ve killed people, the police and everyone know what I’ve done.” DBB was given a pillow and allowed to use the quiet room to discharge her anger. She hit the pillow against the wall and was observed kicking the wall and head butting the wall. Dr. Larson, DBB’s child psychiatrist, testified at the hearing that Shodair considered this to be “very dangerous behavior.” Hearing Transcript, p. 203. DBB was then taken to the punching bag where she “wailed on it.” The child care worker noted that DBB had homicidal fears and appeared to have delusional thinking. Shodair Exhibit G, entry for 8/31.
09/03 During the evening of 9/3 DBB said she was on suicide precautions for biting herself. She hit a peer, then started talking about “wanting to kill somebody, anybody. I’ve done it and will do it again, my dad even knows.” Shodair Exhibit G, entry for 9/3. 09/06 The weekly treatment plan review for 9/6, which is a part of Shodair Exhibit J, states that DBB was “still unable to express anger appropriately and has a potential to hurt others.” It also noted that DBB talked “a lot about violence.”
09/07 DBB stated that she wanted to be placed on suicide precautions, and would do it by biting and hitting herself. She was talking with her peers about how the Indians had killed the white man in her town. Shodair Exhibit G, entry for 9/7.
09/14 During activities therapy DBB continued to have great variations in mood, and her moods could change within a single activity. There appeared to be no way of predicting when this was going to happen. DBB continued to close herself down when overwhelmed by her feelings, and refused to speak to staff at such times. DBB had particular difficulty while playing miniature golf. She appeared to be very preoccupied and needed constant redirection from staff, which she did not easily accept. At times staff had to physically intervene in order to get DBB back on task, and when DBB was touched she would become very hostile. Shodair Exhibit K, entry for 9/14. [The activities therapist] testified as follows about this incident:
... we were playing miniature golf at Mr. T’s and DBB was having a very difficult time attending to the activity. There was one instance where when I tried to call her back to that activity there was absolutely no response from her, she had her back to me and it was as if she didn’t hear anything I was saying. I called her name four times, she still didn’t respond, I finally had to touch her and then she was very hostile toward me at that point. A lot of just this verbal barrage came at me and this extremely fearful reaction in her entire body posturing that looked as if she could strike out at any minute. She did not reveal anything at that point in time and did not seem able to talk right then but it was on that same day that she spoke about the dad possibly beating the shit out of her if she indeed talked about things that had happened to her. So it looked like this was a time when she is reflecting on a lot of what’s happened to her. Possibly having flashbacks and fortunately is able to begin disclosing some of what’s happening to her. Hearing Transcript, pp. 355-56.

The problem with the result in this case is that none of these facts have been analyzed in terms of whether they made continuing hospitalization “medically necessary” without the additional requirement of proving medical necessity by establishing significant danger according to the department’s policy guidelines which were at best indecipherable and at worst a classic example of a bureaucratic mind run amok.

Lost in the shuffle of bureaucratic rules and guidelines was the only real consideration which was relevant in this case. That was whether D.B.B.’s continued hospitalization was medically necessary. Her treating physicians said, “Yes.” Her records would indicate that it was. Yet that question was never answered.

For these reasons, I would reverse and vacate the decision of the hearing examiner based on an incorrect application of the law to the facts in this case and remand for further consideration based on the correct criteria for medicaid reimbursement which is set forth at § 53-6-101(6), MCA.

JUSTICE HUNT joins in the foregoing dissenting opinion.

JUSTICE NELSON

specially concurs.

I have signed the opinion in this case because our analysis and decision is correct on the issues as raised in the administrative proceedings, as reviewed by the District Court and as presented and argued to this Court on appeal.

That is not to say, however, that I disagree with the substance of Justice Trieweiler’s dissent or with his analysis of ARM 46.12.590 (1990), vis-a-vis § 53-6-101, MCA, at issue here. Rather, my decision in the instant case is dictated by the oft-repeated principle that we will not address or determine arguments, issues or theories unless first presented in the appropriate lower tribunals and then preserved for decision by this Court on appeal. Farley v. Booth Bros. Land & Livestock Co. (1995), [270 Mont. 1], 890 P.2d 377, 381, (citing Goodover v. Lindey’s Inc. (1992), 255 Mont. 430, 441, 843 P.2d 765, 772.)