author: JUSTICE WEBER JUSTICE McDONOUGH, CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MALCOLM E. MAYES, Defendant and Appellant.
    No. 90-509.
    Submitted on briefs Aug. 15, 1991.
    Decided Jan. 28, 1992.
    49 St.Rep. 75.
    251 Mont. 358.
    825 P.2d 1196.

      For Appellant: Michael J. Lilly, Berg, Lilly, Andriolo, Tollefsen, and Schraudner, Bozeman.
    For Respondent: Marc Racicot, Attorney General, and Deanne L. Sandholm, Assistant Attorney General, Helena; Mike Salvagni, County Attorney, and Jennifer Bordy, Deputy County Attorney, Bozeman.
   JUSTICE WEBER

delivered the Opinion of the Court.

Malcolm E. Mayes appeals from a jury verdict finding him guilty of incest, a felony, in violation of § 45-5-507, MCA. The District Court of the Eighteenth Judicial District, Gallatin County, sentenced Mayes to a term of twenty (20) years with ten (10) years suspended. We reverse and remand for new trial.

The issues are:

1) Did the District Court err in admitting hearsay evidence of the children’s statements to social worker Joyce Panzer and criminal analyst Lisa Berens?

2) Did the District Court err in admitting posed photographs of the alleged victims?

3) Did the District Court err in granting the State’s motion in limine and prohibiting the defendant from cross-examining Leah Lippert about allegations made against her husband for child molestation?

4) Did the District Court err in allowing the jury to listen to the tape recordings of the entire testimony of witnesses Joyce Panzer and Lisa Berens?

5) Did the District Court err in denying Mayes’ motion to suppress evidence of his admission of inappropriately touching his daughter approximately one year earlier while living in the State of Washington?

Defendant, Malcolm Mayes, was married. He had three children, including Crystal and Janie who are the complaining witnesses in this case. In December 1989, Crystal was 5 years of age and Janie was 3. In June of 1989, Mayes’ wife suffered a nervous breakdown and as a result she was hospitalized in a mental hospital in the State of Washington. Despite the fact that he quit his job to remain home with his children, Mayes testified he found it nearly impossible to provide his children with adequate care. He therefore decided in December to leave Washington and to return to his home state of New York, where he had family who could help raise his children.

While traveling to New York, Mayes stopped in Bozeman, Montana to spend the night at the Alpine Motel. Originally he only planned to stay in Bozeman one night. However, his car froze up during a period of extremely cold weather and he was required to stay an extra night while a mechanic worked on its engine.

While he was staying at the Alpine Motel, a maid named Leah Lippert came to Mayes’ room to ask him to turn his water on so that the pipes would not freeze. According to her testimony, she did not believe that the room was occupied that night and consequently she opened the door without knocking. Ms. Lippert testified that when she entered the room, she saw Mayes laying naked on top of a little girl, also naked. She testified that he was forcing himself between her legs. She testified that there was a cloth over the child’s mouth. She further testified that Mayes rolled on to his side and yelled at her to “get the hell out”. At that time she noticed that Mayes had an erection.

Ms. Lippert testified that she immediately closed the door and left. After witnessing this scene, Ms. Lippert continued with her duties and went to the other rooms to tell the guests to turn their water on. When she completed her rounds she returned to the office and according to her testimony, told her boss, Carolyn Anderson, about what she had seen. She testified that her boss told her not to get involved and that Ms. Anderson threatened to fire her if she called the police. Ms. Lippert testified that she told a friend about what happened and the friend called the police.

Carolyn Anderson denied that Leah Lippert told her about the incident and was vehement in her denial that she threatened to fire her. Ms. Lippert was fired shortly after her boss was served with a subpoena. However, Carolyn Anderson testified that this was not the reason she fired Ms. Lippert.

The next day, after obtaining his car from the mechanic, Mayes and his children continued their journey. Meanwhile, back in Bozeman, the police received an anonymous phone call from a person who reported the incident of sexual abuse.

Leah Lippert testified that after Mayes left she was cleaning his room and found used condoms and “white sticky stuff on the pillowcases”. She testified that Carolyn Anderson washed the pillowcases and that she threw the condoms away herself because she “didn’t know whether they were important or not” for evidence in the case because she had “never turned anybody in like this” and had “never been in court before”.

Mayes was stopped by police in Kadoka, South Dakota at 9:30 a.m. on December 13, 1989. He was taken to the sheriff’s department where he was interviewed about the alleged incident. He completely denied that the event occurred. He was in custody for several hours. He voluntarily submitted to a lie detector test. After being told that he flunked the test, he confessed that he inappropriately touched his daughter while in the State of Washington, approximately one year earlier. He was subsequently placed under arrest and transported to Bozeman to stand trial.

Mayes’trial began on March 29,1990. On March 31,1990, the jury advised the District Court that it could not reach a unanimous verdict. As a result, the court declared a mistrial. Mayes’ second trial began on June 25,1990. At its conclusion, the jury returned a verdict of guilty. This appeal followed.

I

Did the District Court err in admitting hearsay evidence of the children’s statements to social worker Joyce Panzer and criminal analyst Lisa Berens?

Mayes was separated from his children after he was stopped by South Dakota police. The children were taken by social worker Joyce Panzer and criminal analyst Lisa Berens. While in their custody, the children were bathed and were given physical examinations to check for signs of sexual abuse. These examinations revealed no physical evidence of sexual trauma. In addition, the children’s clothing was taken as evidence. Subsequent testing by the Montana State Crime Lab revealed no signs of semen.

In separate interviews, Panzer and Berens jointly interviewed both Crystal and Janie. Both interviews included the use of anatomically correct dolls and pictures in an effort to determine whether the children had been sexually abused. The interviews with the children were not audio taped nor were they video taped.

The testimony of Panzer and Berens established that during her interview, Crystal spontaneously placed male and female anatomically correct dolls in a position of sexual intercourse and stated that they were “doing sex. In response to questioning by Berens and Panzer, she indicated that her father touched her in the vaginal area by placing a mark on an anatomically correct drawing. She also described a penis as being hard rather than soft and having white stuff coming out of it that shoots up high. She said it tasted like “pancake surup”. (sic). Both Panzer and Berens testified that Crystal was hesitant in talking about herself. However, in response to further questioning, Crystal indicated that her father had sex with Janie in a motel room where Janie had a towel over her face.

Janie was interviewed next. The testimony of Panzer and Berens established that during her interview Janie indicated, through the use of anatomically correct drawings that her father touched her in the vaginal area. She described the penis as a “wee-wee” and said her and her daddy did “exercises” together when they were both naked. Janie also indicated that the penis was hard rather than soft and “stuff came out” of it. The testimony of Panzer and Berens did not establish when the above described incidents occurred.

Before trial the State filed a notice of its intention to introduce child hearsay evidence. Following a hearing the District Court determined that neither Crystal nor Janie were competent to testify. Subsequently, it entered an order allowing the State to introduce hearsay testimony of the children’s statements to Joyce Panzer and Lisa Berens. However, it did not allow Laura Nelson, a social worker from the State of Washington, to testify because it found that her interview with the children occurred too long before the incident in Bozeman. As previously stated, both Panzer and Berens testified and repeated statements made by the two children during their interviews in South Dakota.

Rule 804(b)(5), M.R.Evid., provides an exception to the hearsay rule for statements not specifically covered by any of the exceptions enumerated in 804(b)(1) through 804(b)(4), but having “comparable circumstantial guarantees of trustworthiness”. Rule 804(b)(5) has been characterized as a “catchall exception” to the hearsay rule. However, it is distinguished from Rule 803(24), M.R.Evid., where the availability of the declarant to testify is immaterial, in that Rule 804(b)(5) comes into play when the declarant is unavailable to testify. Such is the present case.

We will analyze the admission of this hearsay evidence under the child hearsay guidelines set forth in State v. J.C.E. (1989), 235 Mont. 264, 273, 767 P.2d 309, 315. In addition we will analyze the admission under the recent United States Supreme Court case of Idaho v. Wright (1990),_U.S._, 110 S.Ct. 3139, 111 E.Ed.2d 638. In Idaho v. Wright the victim in an incest case testified and the United States Supreme Court held that incriminating statements admissible under an exception to the hearsay rule were not admissible under the Confrontation Clause unless the prosecution demonstrates the unavailability of the declarant, and unless the statement bears adequate indicia of reliability — a showing of particularized guarantees of trustworthiness. The Court concluded that such “particularized guarantees of trustworthiness must be shown from the totality of the circumstances that include only those circumstances that surround the making of the statement and that render the declarant particularly worthy of belief. The Court also held that the presence of corroborating evidence more appropriately indicates that any error in admitting the statement might be harmless, rather than concluding that the evidence affords a basis for presuming the declarant to be trustworthy. Idaho v. Wright, 110 S.Ct. at 3151.

We will also analyze the admission of the hearsay evidence under the recent case of State v. Harris (1991), 247 Mont. 405, 808 P.2d 453. We will discuss State v. Harris at various points as we review State v. J.C.E. as that case was also considered and discussed in State v. Harris.

In State v. Harris the majority opinion considered the conditions under which hearsay testimony by a therapist who was an expert in treating victims of child sexual abuse may be admitted. In its discussion of this point, the Court pointed out that a therapist does not see a child for treatment of sexual abuse unless there has been a claim of such abuse; that the therapist may be arguably predisposed to confirm what she has been told; and concluded that the nature of the relationship between the therapist and a child client has a negative impact on the trustworthiness of the hearsay statement. The Court further concluded that the circumstances in which a therapist hears a child’s statement about sexual abuse are not such that hearsay statements will possess circumstantial guarantees of trustworthiness. The Court further pointed out that statements to a therapist are not made spontaneously and referred to the suggestiveness of questioning and prior statements. Finally, the Court stated:

“In analyzing these factors, we conclude that only in an extraordinary case will hearsay testimony by a therapist concerning the identity of the perpetrator or the nature of the abuse possess sufficient circumstantial guarantees of trustworthiness to be admissible into evidence. We hold that hearsay statements of a child victim of sexual abuse who does not testify at trial, will in general, not be admissible under Rule 804(b)(5), M.R.Evid., through the child’s therapist ... .” (emphasis added).

Harris, 808 P.2d at 459. The present case is clearly distinguishable from State v. Harris. Here the children were interviewed by social worker Joyce Panzer and criminal analyst Lisa Berens. They were interviewed as a part of a criminal investigation. Neither Panzer nor Berens had the relationship of therapist with either of the children.

In State v. Harris the psychotherapist had a long term relationship with the child for purposes of therapy. In the present case, the social worker and the criminal analyst met with the children the day after the occurrence. Their relationship with the children began and ended shortly after the arrest and was brief. In State v. Harris the psychotherapist knew and treated Janey and Robby over a substantial period of time during which the children opened up and identified the perpetrator. In the present case the children gave their testimony, including the identification of their father as the perpetrator, the very next day. In State v. Harris only the psychotherapist interviewed the children. In this case, two witnesses jointly interviewed the children and their testimony corroborated each other. In contrast to State v. Harris, in this case the children volunteered their statements spontaneously with regard to sexual knowledge without suggestiveness on the part of the interviewers. We initially conclude that the primary concern of State v. Harris with regard to testimony by a treating therapist is not present in this case and the rationale attributable to the treating therapist is not present with regard to either of the witnesses. While we will discuss State v. Harris further in connection with our review of State v. J.C.E., we initially conclude that the primary holding of State v. Harris does not require the exclusion of the hearsay testimony under this issue.

Under State v. J.C.E. the trial court must make preliminary findings concerning the child’s availability before hearsay testimony can be considered under Rule 804(b)(5): (1) the victim must be unavailable as a witness; (2) the proffered hearsay must be evidence of a material fact, and must be more probative than any other evidence available through reasonable means; and (3) the party intending to offer the hearsay testimony must give advance notice of that intention. In this case the District Court determined that the children were not available as witnesses and the State properly gave notice of intent to introduce the child hearsay statements through the testimony of the social worker and criminal analyst. This leaves preliminary finding (2) for consideration.

The question is whether the proffered hearsay was more probative than any other evidence available through reasonable means. The only other evidence available was the testimony of the maid who testified as to the observation of the defendant in bed with the child whose face was covered by a towel. Circumstantial evidence was submitted showing that the hotel room was rented to the defendant and that he had his three small children with him, and such evidence might afford a proper basis for a trier of fact to conclude that the defendant committed the crimes against these particular complaining witnesses.

The District Court made thorough and careful analysis of the offered testimony and made the following findings of fact and conclusions of law concerning the child hearsay guidelines.

“Both victims are unavailable and the evidence is material and more probative than other evidence in the case. The court has considered that there is eyewitness testimony by Leah Lippert who is a maid at the Alpine Lodge and that she is expected to testify that on December 11, 1989 at 10:00 pm. she was checking the rooms at the Alpine Lodge and she entered Room #18 after knocking and receiving no answer. She believed the room was unoccupied. When she turned the light on she saw the defendant naked with an erection lying over the top of what she thought appeared to be a 5-year old child. The child was naked, lying on the bed with a towel or white material over her face. Ms. Lippert will testify that the little girls legs were apart and that he was down between them and that she was of the opinion that he was trying to force himself sexually on the child. The two other children were observed by Ms. Lippert to be crying softly on the other bed in the room and she was immediately ordered out of the room by the defendant.

“This is, of course, powerful evidence by a disinterested person but the court deems that the testimony of the children is probative as to the actual acts against the children and therefore finds that the evidence should be admitted under these threshold requirements."

The District Court also considered the following Child Guidelines.

“Crystal is age 4. Janie is age 3.

“Crystal has verbal skills and Janie’s verbal skills are less developed although the witness, Laura Nelson, was of the opinion that she had proper verbal skills.

“Concerning comprehension, all three witnesses testified that Crystal had proper comprehension skills but Janie’s were said to be in question unless the matter were put to her in very simple terms.

“It is believed by all three witnesses that Crystal knew the difference between truth and falsehood and she displayed that on the witness stand. Janie’s understanding of truth and falsehood was less certain, although she was able to describe certain members of her family accurately.

“There does not appear to be any clear motivation for the children to lie in this case.

“The mental capacity of Crystal is said to be proper for her age and the mental capacity of Janie, of course, is less developed but she was able to recognize and use anatomically correct dolls.

“Crystal displayed a good memory for her age and maturity and Janie did not.”

We also point out that since the child’s face was covered with a towel, the maid could not specifically identify the child. At most a trier of fact could conclude from the evidence that the child could have been one of defendant’s three small children who were with him when he rented the room. Furthermore, Crystal, the five year old, in her interview described her father having sex with her sister Janey in a motel room where Janey had a towel over her face. Crystal had previously described “doing sex” by placing anatomically correct dolls in a position of sexual intercourse. In turn Janey had described how she and defendant did “exercises” together when they were both naked. We conclude that the hearsay testimony of the statements by Crystal and Janey was more probative than the testimony on the part of the maid.

Under State v. J.C.E. the admissibility of evidence is within the discretion of the trial court. We conclude that the District Court did not abuse its discretion in reaching its decision, and affirm its conclusion that the proffered hearsay evidence was more probative than any other evidence available through reasonable means.

Having concluded that the preliminary protections of Rule 804(b)(5) as required by State v. J.C.E. have been met, we will consider the child hearsay guidelines enumerated in that case. These guidelines were considered in groups as follows: (1) the attributes of the child hearsay declarant; (2) the witnesses relating the hearsay statement; (3) the statement itself; (4) the availability of corroboration evidence; and (5) other considerations. State v. J.C.E., 767 P.2d at 315, 316.

With regard to the attributes of the child hearsay declarants in this case under (1), the evidence before the District Court established the children’s ages as 5 and 3, and also established that both children had the ability to communicate verbally and that each child possessed sufficient memory to retain an independent recollection of the events. There was no evidence to indicate a motivation other than telling the truth because of the absence of any relationship between the children and the social worker and the criminal analyst. We therefore conclude that the attributes of the child hearsay declarants do allow the admission of the evidence. In addition we conclude the foregoing constitute guarantees of trustworthiness under both Idaho v. Wright and State v. Harris.

Under (2), the witness relating the hearsay statements, the first aspect is the witnesses’ relation to the child. Here there was no existing relationship between the social worker and the criminal analyst and the two children. This should be distinguished from State v. Harris where the psychotherapist had a long term relationship with the child for purposes of therapy and described how it had been some time before Janey opened up to her and described what had happened both by use of anatomically correct dolls and verbal description. In the present case the two people interviewed the child shortly after the incident took place. In this case there is nothing in the relationship to suggest that such relationship might have had an impact on the trustworthiness of the hearsay statement or that the witnesses might have a motive to fabricate or distort. The timing of the statement in relation to the incident at issue is particularly significant here because the testimony took place on the following day. In addition, two witnesses here together interviewed each child. The relationship between the witnesses and the children was brief and the children’s statements were heard very close in time to the occurrence. This suggests that the children would be much less likely to fabricate and that the testimony is more trustworthy in the present case. Again this is distinguishable from the facts in State v. Harris. In addition we have the testimony of each of the two girls which corroborated each other.

In State v. Ryan, (Wash. 1984), 691 P.2d 197, 205, the Washington Supreme Court held that whether more than one person heard the statements, the timing of the declaration and the relationship between the declarant and the witnesses were key factors in determining whether the hearsay statements were reliable. We adopt the theory of State v. Ryan and conclude that all of the circumstances under the State v. J.C.E. guidelines in group (2) tend to establish the proper admissibility of the evidence. We conclude that such circumstances exhibit guarantees of trustworthiness under the analysis required in Idaho v. Wright.

Under State v. J.C.E. group (3), the statement itself, the statements of both children demonstrated in this case sexual knowledge not normally attributable to a 3 year old and a 5 year old. This included the use of anatomically correct dolls, the marking of anatomical drawings, the testimony of both girls as to the hardness of the penis and the stuff which came out of it, including the statement that the stuff tasted like syrup. These statements expressed knowledge not normally attributable to children of these declarants’ ages. The information was volunteered spontaneously. The record does not demonstrate the suggestiveness of any prior statement by the witness which would influence the same. In addition the statements were made to more than one person and were near in time to the incident at issue. Again the statements meet the standards of group (3) — the statement itself. In addition, the circumstances again exhibit guarantees of trustworthiness -under the Idaho v. Wright test.

In State v. J.C.E. next is group (4) — the availability of corroborative evidence. Here the corroborative evidence on the part of the maid is both substantial and significant. While that testimony may have been subjected to a number of questions because of the contradictory evidence as to its believability, the record does still contain sufficiently substantial corroborative evidence to meet this group (4) requirement. We do note that under Idaho v. Wright:

“the presence of corroborating evidence more appropriately indicates that any error in admitting the statement might be harmless, rather than that any basis exists for presuming the declarant to be trustworthy.”

Idaho v. Wright, 110 S.Ct. at 3150-51.

Because of that statement, the presence of corroborating evidence is not significant under that case for admission purposes. On the other hand, at a minimum the testimony does establish a basis for considering both declarants to be trustworthy.

Under State v. J.C.E. group (5) — other considerations — we do not find any particular facts which need analysis.

Under State v. J. C.E., the admissibility of the evidence in question remained in the discretion of the trial court. This Court will defer to the trial court’s discretion -unless an abuse of discretion is clearly shown. Applying the analysis required by State v. J.C.E. to the testimony of witnesses Panzer and Berens, we conclude that the District Court did not commit an abuse of discretion in admitting the hearsay testimony.

Considering the requirements of Idaho v. Wright, we conclude that the evidence did include the required particularized guarantees of trustworthiness so that it is admissible under that case as well. We have previously concluded that we distinguished the testimony by the two witnesses here from the physical therapist involved in State v. Harris. In reviewing the testimony, we conclude that the testimony with regard to the identity of the defendant and the nature of the abuse, possessed sufficient circumstantial guarantees of trustworthiness to be admissible under the rule of that case. We therefore conclude that State v. Harris does not require the exclusion of the evidence.

We hold that the District Court did not err in admitting the hearsay evidence of the children’s statements through social worker Joyce Panzer and criminal analyst Lisa Berens. We therefore affirm on this issue.

II

Did the District Court err in admitting posed photographs of the alleged victims?

The second issue submitted by Mayes concerns the District Court’s decision to admit three pictures taken of Crystal and Janie after Mayes was arrested. These pictures were taken of the children at their foster home shortly before they returned to Washington. Mayes maintains that the photographs were not relevant to any issue at trial and were highly prejudicial.

Photographs are admissible if they are relevant to describe a person, place, or thing involved in the case. Fulton v. Chouteau County Farmers’ Co. (1934), 98 Mont. 48, 37 P.2d 1025. However, otherwise relevant photographs are not admissible if their probative value is outweighed by prejudice to the defendant. Rule 403, M.R.Evid. It is up to the trial court to determine if the probative value of the photograph outweighs any prejudicial effect to the defendant. State v. Henry (1990), 241 Mont. 524, 788 P.2d 316. This Court will not disturb such a decision absent a showing of abuse of discretion. State v. Austad (1982), 197 Mont. 70, 641 P.2d 1373.

The State maintains that the photographs were relevant to show the jury who this case involved. It maintains that the pictures show no physical injuries and in fact seem to depict two happy, healthy children. Given the nature of these photographs Mayes cannot show any prejudice.

We have examined the three photographs and agree that they do not depict anything out of the ordinary which would normally serve to arouse a jury’s passion. They simply show Crystal and Janie in normal poses smiling for the camera. Although their relevancy may be somewhat questionable, we do not agree that their admission was calculated to arouse the sympathies or prejudice of the jury. Moreover, when the trial court admitted the photographs the jury was given a cautionary instruction that the exhibits should not inflame or otherwise excite their sympathies.

We conclude there was no abuse of discretion in the admission of the photographs and hold that the District Court did not err in admitting such photographs. We affirm on this issue.

Ill

Did the District Court err in granting the State’s motion in limine and prohibiting the defendant from cross-examining Leah Lippert about allegations made against her husband for child molestation?

Shortly after Mayes’ first trial, defense counsel was informed through an anonymous phone call that Sonny Lippert, the husband of the State’s chief witness, was under investigation for child molestation. Mayes’ counsel, believing this information to be relevant to Leah Lippert’s credibility, sought to obtain the investigation file that was compiled on these accusations. Ultimately the file was produced. However, the State filed a motion in limine requesting the court’s order prohibiting the defense from cross-examining Leah Lippert concerning the allegations against her husband. After reviewing the records in camera and hearing oral argument on the matter, the District Court held that the defense could not use the records unless it could establish some factual link between the Mayes children and Mr. Lippert.

Mayes argues that the court’s ruling was an abuse of discretion. He maintains that the information may have been relevant to Ms. Lippert’s motive to falsify. According to Mayes, a reasonable and logical argument could be made that her testimony was meant to divert the public’s attention away from her husband’s conduct.

Once again, we reemphasize the fact that rulings on admissibility of evidence are left to the sound discretion of the trial court. Its ruling on such matters will not be overturned unless there is an abuse of discretion. State v. Crazy Boy (1988), 232 Mont. 398, 757 P.2d 341. When the District Court ruled on this matter, it took into account the fact that at the time Mayes’ alleged criminal activity occurred, no investigation had been instituted against Mr. Lippert. Moreover at the time of trial, no charges had been filed and Mayes was unable to establish any connection between Lippert’s alleged activity and his own pending charges. Given these facts, the court determined that the evidence was irrelevant and immaterial.

We conclude there was no abuse of discretion in this ruling. The District Court personally viewed the investigative file and personally viewed Leah Lippert testify at the hearing on the State’s motion in limine. After taking all of these circumstances into consideration, it decided to disallow this evidence unless the defense could establish some link between Mayes’ children and Mr. Lippert. This decision was within the proper boundaries of its discretion and we will not disturb it on appeal. We affirm on this issue.

IV

Did the District Court err in allowing the jury to listen to the tape recordings of the entire testimony of witnesses Joyce Panzer and Lisa Berens?

After the jury retired to deliberate, it returned a note to Judge Olson requesting to hear again the testimony of Lisa Berens and Joyce Panzer. The State did not object. However, defendant did object as stated below.

“I believe the request is overly broad. It is not nearly specific enough and if the jury were to allow — were to be allowed to hear all of their testimony again, it would be -unduly emphasizing that testimony over all of the other testimony in the trial and would prejudice the rights of the defendant.”

The court allowed the replaying of the testimony because “this testimony is pointed and crucial and obviously of interest to the jury. And the court notes that coincidentally the last jury in this matter also asked for and received the testimony of these two persons”.

On appeal, defendant maintains the replaying of the testimony was prejudicial and reversible error. The State argues that it was not prejudicial because the jury heard all of the testimony, including cross-examination.

Section 46-16-503(2), MCA, provides:

“After the jury has retired for deliberation, if there is any disagreement among the jurors as to the testimony or if the jurors desire to be informed on any point of law arising in the cause, they shall notify the officer appointed to keep them together, who shall then notify the court. The information requested may be given, in the discretion of the court, after consultation with the parties.”

The case of State v. Harris was decided after the conviction of the defendant in the present case. In State v. Harris, this Court held that the District Court committed reversible error when it allowed the jury to rehear the entire testimony of a child victim of sexual abuse. This Court held that the reading of the testimony prejudiced the defendant by placing undue emphasis on the statement of the alleged victim to the exclusion of the testimony of other witnesses.

While under § 46-16-503(2), MCA, the decision to allow a replaying or restatement of testimony is addressed to the discretion of the district court, the court should determine what particular testimony has caused the disagreement among the jurors. After making that determination, the court shall exercise its discretion after consultation with the parties, keeping in mind that the court must avoid undue emphasis upon particular testimony as condemned in State v. Harris.

In the present trial the District Court allowed the jury to listen to the tape recordings of the entire testimony of both witnesses Panzer and Berens. The testimony of those witnesses was critical to the case of the State. In a manner similar to State v. Harris, we conclude that the playing of the entire testimony of both witnesses unduly emphasized the testimony of the alleged victims to the exclusion of the testimony of other witnesses.

We hold that the District Court abused its discretion in allowing the jury to listen to the tape recordings of the entire testimony of Panzer and Berens. We reverse and remand for new trial on this issue.

V

Did the District Court err in denying Mayes’ motion to suppress evidence of his admission of inappropriately touching his daughter approximately one year earlier while living in the State of Washington?

When Mayes was picked up by the South Dakota police he had been awake and driving for almost 26 hours. At the time he was taken into custody he was interviewed by Agent John Walker of the South Dakota Division of Criminal Investigation. After being read his Miranda rights, Mayes agreed to be interviewed without an attorney present. Portions of the interview follow.

“Q. Have you ever had any problems with the law'— ever been looked at for any type of child abuse or molestations?
“A. No, ah, I’ve been accused of it once before from my mother-in-law and ah Child Protection Services checked them out here in Washington.
“Q. Where, where at in Washington?
“A. In Tacoma, Washington.
“Q. In Tacoma?
“A. Accusations and when Child Protection Services got done they suggested that I take the kids and go back to my family and that’s why I’m going.
“Q. And your family is where?
“A. They’re in New York.
“Q. Do you have custody of the children — are they in your custody by any order or anything?
“A. Not by any court but I’m the only one capable of taking care of them.
“Q. Is, did you let anybody aware of the fact that you’d be leaving the State of Washington?
“A. My CPS case worker. She helped me get money and food and stuff for the trip. And my, one of my sister-in-laws knew I was going.
“Q. Okay what, when you — can you kind — has any of the children been hurt?
“A. No, not at all.
“Q. Um there’s kind of a problem in in Montana at the motel that you were staying at.
“A. Okay.
“Q. There’s blood in on the sheets of one of the beds. What, what can you tell me about that, yeah, that’s why you’re here.
“A. I can’t tell you, I don’t know.
“Q. Were you aware of any bleeding or any blood in the bed?
“A. No.
“Q. Could there have been some that you weren’t aware of?
“A. No, I don’t think so.
“Q. They’ve got the sheets and stuff.
“A. Are they sure it’s blood?
“Q. Ah they’re having it analyzed right now and there there is sure enough to hold you and be filing for a warrant.
“A. Ah I think they’d better check that out closer first.
“Q. What could it be?
“A. Ah I don’t know, they had all kinds of stuff in there, chocolate candies but...
“Q. Well they’re they’re pretty sure.”

Agent Walker lied. Agent Walker had no information that there was blood on the sheets; the sheets were not in police custody; and in addition there was no blood to be analyzed. Agent Walker pled with Mayes to tell the truth because he could empathize with Mayes’ situation. Agent Walker told Mayes that his children were being examined at the hospital and insinuated that the children may not be healthy. Mayes requested to take a polygraph examination.

After no sleep for at least 26 hours; being arrested; having his children taken from him; and being interviewed; Mayes was driven to Pierre, South Dakota to take a polygraph examination several horns later. Apparently, when asked whether he ever had sexual contact with his children, the polygraph machine indicated Mayes was not telling the truth. The polygraph examiner then used this information in an effort to obtain a confession. For twenty minutes, Mayes denied having any sexual contact with his children. However, eventually he stated that he inappropriately touched his daughter Crystal about a year earlier in Washington. When the examiner tried to question him further, Mayes invoked his Fifth Amendment Rights and asked for an attorney. Mayes maintained that the examiner was attempting to put words in his mouth.

Mayes argues that these circumstances require the suppression of his admission. He points out that a confession or admission must be suppressed if it is determined that the admission or confession was not voluntarily given. Section 46-13-301(1), MCA. An analysis of the voluntariness of a confession is a factual question which must take into account the totality of the circumstances. State v. Allies (1979), 186 Mont. 99, 606 P.2d 1043. However, when a defendant raises the question of voluntariness, the State must prove by a preponderance of the evidence that the confession or admission was voluntarily obtained. Section 46-13-301(2), MCA.

In State v. Phelps (1985), 215 Mont. 217, 696 P.2d 447, we stated:

“We cannot over emphasize our strong condemnation of police practices ... wherein a police officer misinforms a defendant as to other arrestees having given confessions ....
“Similarly, we cannot condone the tactics of this officer who informed Phelps as to the existence of incriminating evidence when the evidence was inconclusive.”

The combination of the circumstances surrounding Mayes’ confession mandates suppression. By the time Mayes confessed to the Washington crime he had been awake for more than 30 hours, questioned continually, separated from his children and bed to about the evidence against him. We conclude that a preponderance of the evidence does not support the District Court’s conclusion that Mayes’ confession was voluntary.

We hold that the District Court committed reversible error in denying Mayes’ motion to suppress evidence of his admission of inappropriately touching his daughter approximately one year earlier while living in the State of Washington. We reverse and remand on this issue.

Affirmed in part. Reversed in part.

JUSTICES HARRISON, HUNT, TRIEWEILER, and GRAY concur.

JUSTICE McDONOUGH,

concurring in part and dissenting in part:

I concur in the majority opinions determinations on Issues 1, 2, 3 and 4.

I dissent from the majority on Issue 5. Mayes was competent, aware of and capable of exercising his rights, which he did a short time later.

CHIEF JUSTICE TURNAGE

concurring in part and dissenting in part:

I concur in the majority opinion affirming the conviction on Issues 1, 2 and 3.

I respectfully dissent from the majority of this Court’s decision on Issue 4, and I would affirm the conviction as to that issue.

As stated in the majority opinion, witnesses Lisa Berens’ and Joyce Panzer’s testimony was in the form of tape recordings, and the jury, after they had retired, requested that they be permitted to hear the testimony a second time.

Notwithstanding that this Court in State v. Harris (1991), 247 Mont. 405, 808 P.2d 453, held that the District Court committed reversible error in that case when the jury was allowed to rehear the testimony of a child victim, I believe the Court should reconsider its decision in view of the provisions of § 46-16-503(2), MCA:

“After the jury has retired for deliberation, if there is any disagreement among the jurors as to the testimony or if the jurors desire to be informed on any point of law arising in the cause, they shall notify the officer appointed to keep them together, who shall then notify the court. The information requested may be given, in the discretion of the court, after consultation with the parties.” [Emphasis supplied.]

Although the record does not disclose the precise “disagreement” that prompted the jurors to make their request to rehear the tape recordings, no other conclusion can be reached other than there must have been uncertainty and, therefore, a practical disagreement as to what the testimony stated. Otherwise, they would have had no reason to make the request. The plain language of the statute provides that “the information requested may be given, in the discretion of the court.”

When the court follows the language of the statute, there certainly cannot be an abuse of discretion.

I further dissent from the Court’s finding of reversible error in Issue 5. Without approving all of the statements that were made by the South Dakota law enforcement officer concerning physical evidence that was not in the possession of the Montana authorities, I believe that, in view of the other overwhelming evidence against the defendant, such statements would be harmless error under the facts of this case.

With reference to the majority’s concern about defendant’s lack of sleep and his interrogation by the South Dakota authorities resulting in his admission of sexual contact with one of the victims occurring in the State of Washington, such circumstances, again in view of the overwhelming evidence against the defendant, would be harmless error. Mayes was aware of and capable of exercising his rights. Subsequent to his admission, he invoked his Fifth Amendment rights and asked for an attorney.

I believe that law enforcement officers should be extremely careful about information they provide a defendant and also about the circumstances surrounding extended interrogation of a suspect. The facts in this case, however, support the District Court’s refusal to suppress this evidence.

For these reasons, I would affirm the conviction of the defendant.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    KELVIN DILLARD, Plaintiff and Appellant, v. JOHN DOE, and THE STATE OF MONTANA, Defendants and Respondents.
    No. 91-227.
    Submitted on briefs Aug. 29, 1991.
    Decided Jan. 28, 1992.
    49 St.Rep. 85.
    251 Mont. 379.
    824 P.2d 1016.

      For Appellant: James A. Manley, Manley Law Offices, Poison.
    For Respondents: Marc Racicot, Attorney General, and Betsy Brandborg, Assistant Attorney General, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

The appellant, Kelvin Dillard, appeals from an order of the District Court of the Twentieth Judicial District, Lake County, granting summary judgment in favor of the respondents, John Doe and the State of Montana. We affirm in part, reverse in part and remand for further proceedings.

The sole issue on appeal is whether the District Court erred in granting summary judgment to the respondents.

Early on the morning of January 9, 1989, the appellant, Kelvin Dillard, was walking from his home on Fulkerson Lane near Flathead Lake to work the 7:00 a.m. shift at Flathead Lumber in Poison, Montana. It was dark, windy and snowing as the appellant followed Highway 35 west into Poison. Wearing a Levi coat, jeans, and a black hat and carrying his yellow hard hat, he walked next to the highway delineator posts with his back to the wind and blowing snow and to traffic headed in the same direction as he was. It did not appear to the appellant that the highway had been plowed yet.

The appellant testified in his deposition that as he walked “I kept turning around and looking behind me hopefully to thumb a ride with a car and watching out for the plow because I didn’t want to get hit. I seen the plow as it rounded the comer at Fulkerson Hill.” He knew the approaching vehicle was a snowplow because he could see the flashing yellow lights and hear the scraper.

The appellant’s testimony of the events which occurred after he saw the snowplow round the corner is as follows:

“A. I saw [the snowplow]. I says to myself, Before that guy gets up here, I’ve got to get on the other side of the ditch, or I’m going to be buried in snow.” I maybe walked another 25, 30 yards, stopped, hung my hard hat on the reflector, bent over to light a cigarette, and that’s when I caught the reflection of his yellow flashing light in the snow and (indicating), he got me.
“Q. With what did he get you?
“A. I believe it was the blade.”

The appellant was between the fogline and the delineator post with one foot on the pavement when he was hit. The snowplow continued on, its operator apparently unaware of what had occurred.

On August 7, 1989, the appellant filed suit against the operator of the snowplow, named in the complaint as John Doe, and the State of Montana alleging negligence and seeking to recover general, special and punitive damages. During discovery, the respondent State of Montana filed a motion for summary judgment. A hearing on the motion was held on January 16, 1991. Thereafter, the District Court granted summary judgment in favor of the respondents.

In its memorandum and order granting summary judgment the District Court first determined that the appellant was negligent as a matter of law. The court determined that the appellant was negligent in that: (1) he violated § 61-8-506, MCA, which requires a pedestrian to walk only on the left side of the roadway facing traffic which may approach from the opposite direction; (2) he violated § 61-8-507, MCA, which prohibits standing in a roadway for the purpose of soliciting a ride; and (3) after hearing and seeing the snowplow, he “walked 25 yards farther, stopped, hung his hard hat on the highway delineator post and bent slightly to light a cigarette with his back still to the traffic when he was hit either by the snowplow [blade] or by thrown snow.”

The snowplow operator had not yet been deposed at the time of the hearing on the motion for summary judgment. The District Court found that the appellant’s factual allegations failed to establish any negligence on the part of the snowplow operator and that the record was devoid of any evidence of negligence by the respondents. The court went on, however, for purposes of the summary judgment motion only, to infer and assume negligence by the respondents based on the appellant’s allegations, even though those allegations were not supported by facts on the record. Assuming first that the snowplow was owned by the State and operated by its employee, John Doe, at the time of the accident, the court went on to assume that the snowplow operator was negligent in failing to keep a proper lookout, failing to maintain control of his vehicle, driving too close to the appellant and driving too fast.

The District Court then concluded that reasonable minds could not differ on the issue of comparative negligence: the appellant’s negligence far exceeded the respondents’ negligence. Thus, the court ruled that the respondents were entitled to summary judgment as a matter of law.

Did the District Court err in granting the motion for summary judgment?

In order for summary judgment to issue, the movant must demonstrate that there is no genuine issue as to facts deemed material in light of the substantive principles entitling the movant to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 117, 760 P.2d 57, 60. If the movant meets this burden, the burden then shifts to the non-moving party to demonstrate a genuine issue of material fact. Frigon, 233 Mont. at 117, 760 P.2d at 60.

Ordinarily, issues of negligence are questions of fact not susceptible to summary adjudication. Brohman v. State (1988), 230 Mont. 198, 201, 749 P.2d 67, 69. Liability should not be adjudicated upon a motion for summary judgment where factual issues concerning negligence and causation are presented. Duchesneau v. Silver Bow County (1971), 158 Mont. 369, 377, 492 P.2d 926, 931. However, in certain cases where reasonable minds could reach but one conclusion as to the cause of an accident, questions of fact may be determined as a matter of law. Brohman, 230 Mont. at 202, 749 P.2d at 70 (citing Hartley v. State (Wash. 1985), 698 P.2d 77, 81).

Here, the factual issues that were determined as a matter of law by the District Court were that the appellant was negligent and that his negligence exceeded the presumed negligence of the respondents. Thus, the question we must determine on appeal is whether the District Court correctly concluded that reasonable minds could not differ under the factual circumstances presented in this case. In so doing, we will follow the District Court in presuming certain acts of negligence by the respondents as established fact for purposes of appeal.

The appellant’s negligence is clear on the record before us. He failed to walk on the left side of the roadway facing traffic which may approach from the opposite direction, in violation of § 61-8-506(2), MCA. In addition, instead of moving farther off the roadway after he became aware of the approaching snowplow, the appellant walked another twenty-five to thirty yards with his back still to traffic, stopped, hung his hard hat on the delineator post, and bent over to light a cigarette; only then was he hit either by the snowplow blade or by thrown snow. There can be no doubt that, given the darkness and blowing snow, this conduct by the appellant constitutes negligence.

We disagree, however, with the District Court’s determination that the appellant’s negligence is also evidenced by a violation of § 61-8-507, MCA, which prohibits standing in the roadway for the purpose of soliciting a ride. Although the appellant’s deposition testimony indicated that before he stopped to light a cigarette he would look behind as he walked in hopes of thumbing a ride, nothing in the record supports a finding that the appellant was at any time standing in the roadway for the purpose of soliciting a ride, as prohibited by § 61-8-507, MCA. Nevertheless, we conclude that the District Court correctly determined that the appellant was negligent as a matter of law. Given the clear evidence in the record, we hold that reasonable minds could not differ as to the appellant’s negligence. Thus, the respondents are entitled to summary judgment on the issue of the appellant’s negligence.

Balanced against the appellant’s negligence are certain acts of presumed negligence by the snowplow operator: that he failed to keep a proper lookout, did not maintain control of his vehicle, drove too close to the appellant and drove too fast. As previously stated, the District Court concluded that the appellant could not prevail on the issue of comparative negligence based on its determination that reasonable minds could not differ in finding that the appellant’s actual negligence “far exceeded” the respondents’ presumed negligence.

In our view, however, the amount of presumed negligence on the part of the respondents is substantial. The presumed actions and omissions of the snowplow operator would constitute a violation of § 61-8-302, MCA, which requires operating a vehicle in a careful and prudent manner and § 61-8-303, MCA, which requires operating a vehicle in a careful and prudent manner and at a rate of speed no greater than is reasonable under existing conditions. In addition, the snowplow operator had a duty to look not only straight ahead but laterally ahead as well and the law presumes that he saw that which was in plain view. Payne v. Sorenson (1979), 183 Mont. 323, 326, 599 P.2d 362, 364. Here, it is presumed that the snowplow operator failed to keep a proper lookout and, thus, failed to see that which was in plain view.

Both parties agree that in cases where there is evidence of negligence by both parties, it is generally for the factfinder to determine the comparative degree of negligence. Reed v. Little (1984), 209 Mont. 199, 206-07, 680 P.2d 937, 940-41. However, the respondents assert that this is an extraordinary case in which the parties’ comparative negligence can be determined as a matter of law. They contend that the factual circumstances of the present case are similar to those in Brohman v. State (1988), 230 Mont. 198, 749 P.2d 67, in which we affirmed a grant of summary judgment which was based on the district court’s determination, as a matter of law, that the plaintiff’s negligence exceeded the presumed negligence on the part of the State. In Brohman, the State was presumed to have been negligent for failing to warn of a no-passing zone. Contrasted to the State’s presumed negligence was the plaintiff driver’s negligence in attempting to pass in a no-passing zone, at night, in a snowstorm, with obscured visibility. We held that under the circumstances presented, reasonable minds could not differ in finding that the plaintiff’s negligence clearly exceeded the State’s presumed negligence and was the proximate cause of the resulting accident. Brohman, 230 Mont. at 205, 749 P.2d at 72.

Unlike the situation in Brohman, we cannot conclude in the case before us that the issue of comparative negligence can be determined as a matter of law. Here, there is substantial, active negligence by both parties (although at this point the respondents’ negligence is only assumed) at the very moment the accident occurred. Given the quantum of presumed negligence on the part of the respondents, reasonable minds could differ on the issue of the parties’ comparative negligence. Thus, we hold that the District Court erred in determining, as a matter of law, that the appellant’s negligence far exceeded the presumed negligence of the respondents.

The respondents assert that the appellant’s negligence was the sole proximate cause of the accident and, therefore, the District Court properly granted summary judgment in their favor. Given our holding in this case with respect to comparative negligence and the fact that it remains to he seen, after sufficient further development of the record, whether any actual negligence on the part of the respondents can be shown by the appellant, we will not address the issue of proximate causation.

Affirmed in part, reversed in part and remanded for further proceedings.

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


author: JUSTICE HARRISON JUSTICE HUNT,

text:
    JOHN MIKE DOWNEY, PATRICE DOWNEY, THOMAS DOWNEY, AND THE DONUT HOLE, Plaintiffs and Respondents, v. DENVER CHRISTENSEN AND BAKER BOY BAKE SHOPS, INC., Defendants and Appellants.
    No. 91-305.
    Submitted on briefs Nov. 14, 1991.
    Decided Jan. 28, 1992.
    49 St.Rep. 88.
    251 Mont. 386.
    825 P.2d 557.

      For Appellants: Marshal L. Mickelson, Corette, Pohlman, Allen, Black & Carlson, Butte, Montana; Michael J. Maus, Howe, Hardy, Galloway & Maus, Dickinson, North Dakota.
    For Respondents: Curtis Thompson and Sue Ann Love, Jardine, Stephenson, Blewett & Weaver, Great Falls, Montana.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal by Denver Christensen and Baker Boy Bake Shops, Inc. (Baker Boy) from a June 4, 1991, Order of the Second Judicial District Court, Silver Bow County, denying their motions to compel arbitration of the claim filed by John, Patrice, and Thomas Downey and The Donut Hole (the Downeys). We reverse.

Christensen and Baker Boy present the following issue for our review: Did the District Court err in failing to compel the parties to submit their claims to arbitration?

Baker Boy is a North Dakota corporation which offers and sells The Donut Hole franchises in various states including Montana. The Downeys entered into a franchise agreement with Baker Boy on February 21, 1987, agreeing to open and operate a The Donut Hole franchise in Butte, Montana. Christensen was employed by Baker Boy assisting new franchisees in business operations. Christensen allegedly helped procure the franchise agreement entered into between the Downeys and Baker Boy.

The Downeys operated The Donut Hole in Butte from approximately January of 1988 through December 31,1990, in a building they leased from Baker Boy. The Downeys ceased operations after Baker Boy evicted them from the leased premises for nonpayment of rent.

The Downeys filed a complaint against Christensen and Baker Boy on November 1, 1990. The Downeys presented a number of claims alleging fraud, breach of the implied covenant of good faith and fair dealing, breach of contract, and negligence. These claims stemmed from the franchise agreement entered into between the Downeys and Baker Boy.

Immediately upon serving the complaint on Christensen and Baker Boy, the Downeys began discovery by serving requests for production on Christensen and Baker Boy. Both Christensen and Baker Boy responded to the Downeys’ first discovery requests.

Christensen and Baker Boy separately answered the complaint on the merits and each asserted the following affirmative defenses:

“As an affirmative defense, Baker Boy alleges that by agreement between the parties’ [sic] disputes as alleged herein must be resolved by arbitration and, therefore, the [c]ourt does not have jurisdiction.”
“This court lacks subject matter jurisdiction as the franchise agreement requires disputes such as those alleged to be resolved by arbitration;”

Baker Boy also filed a counterclaim and amended counterclaim against the Downeys alleging breach of the franchise agreement and breach of the leasehold agreement.

After responding to the Downeys’ discovery requests, Christensen and Baker Boy initiated discovery proceedings. Christensen served interrogatories and requests for production on the Downeys and Baker Boy served requests for admission on the Downeys. The Downeys responded to both requests. During this exchange of written discovery, depositions were scheduled and noticed but never taken.

After the Downeys served their second request for discovery on Baker Boy, both Christensen and Baker Boy filed motions to compel arbitration and stay proceedings. Baker Boy failed to respond to the Downeys’latest discovery requests because of these pending motions. The District Court denied Christensen’s and Baker Boy’s motions to compel arbitration. Christensen and Baker Boy jointly appeal.

I.

Did the District Court err in failing to compel the parties to submit their claims to arbitration?

The written franchise agreement governing the parties’ relationship provides:

“[T]he parties agree that any and all disputes between them, and any claim by either party that cannot be amicably settled, shall be determined solely and exclusively by arbitration in accordance with the rules of the American Arbitration Association or any successor thereof.”

Clearly, this arbitration clause requires the parties to submit the instant controversy to arbitration rather than civil litigation. However, the District Court concluded that both Christensen and Baker Boy waived arbitration by participating in discovery resulting in prejudice to the Downeys. Finding waiver, the court concluded that the matter was properly before it. We disagree and therefore reverse with instructions that the District Court order arbitration.

The Federal Arbitration Act governs the arbitration clause at issue in this case since the transaction between Baker Boy and the Downeys was one involving commerce. 9 U.S.C. § 2; Vukasin v. D.A. Davidson & Co. (1990), 241 Mont. 126, 785 P.2d 713. The underlying motions to compel arbitration were properly before the Second Judicial District Court, Silver Bow County, Montana, because state district courts have jurisdiction under the Federal Arbitration Act to order arbitration. Passage v. Prudential-Bache Sec., Inc. (1986), 223 Mont. 60, 727 P.2d 1298; Southland Corp. v. Keating (1984), 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1. When a district court denies a motion to compel arbitration based on the premise that one party waived arbitration, this Court reviews such determination de novo. Fisher v. A.G. Becker Paribas Inc. (9th Cir. 1986), 791 F.2d 691, 693.

When parties have contracted to settle disputes through arbitration, the party asserting waiver bears a heavy burden of proof. Britton v. Co-Op Banking Group (9th Cir. 1990), 916 F.2d 1405, 1412; Fisher, 791 F.2d at 694. That party must demonstrate: (1) knowledge of the existing right to compel arbitration; (2) acts inconsistent with the right to arbitrate the dispute; and (3) prejudice to the party resisting arbitration. Britton, 916 F.2d at 1412; Fisher, 791 F.2d at 694.

In the case at bar, the parties do not dispute that Christensen and Baker Boy knew of their existing right to arbitrate. However, the Downeys assert that Christensen and Baker Boy acted inconsistently with their right to arbitrate to the Downeys’ prejudice constituting waiver.

Christensen and Baker Boy seek reversal of the District Court’s order denying their motions to compel arbitration for the following reasons: (1) each asserted its right to arbitration as an affirmative defense in its answer; (2) neither waived its right to arbitrate the dispute by participating in discovery; and (3) the Downeys were not prejudiced by Christensen’s and Baker Boy’s participation in discovery.

The Downeys allege the following inconsistencies demonstrating waiver: (1) Christensen’s and Baker Boy’s filing of formal answers rather than motions to dismiss or stay proceedings; (2) Baker Boy’s filing of a counterclaim; (3) Christensen’s and Baker Boy’s participation in preparing a discovery schedule; and (4) Christensen’s and Baker Boy’s participation in discovery before they filed motions to compel arbitration. The Downeys contend that these acts prejudiced them since Christensen and Baker Boy benefitted from the Downeys’ substantial compliance with Christensen’s and Baker Boy’s discovery requests without affording similar benefits on the Downeys.

The Downeys were on notice of Christensen’s and Baker Boy’s intent to rely on the arbitration clause in the franchise agreement from the outset because they explicitly included this right to arbitrate in their answers as affirmative defenses. This factor alone sufficiently defeats a claim of waiver. G.B. Michael and Genossenschaftkraftfutterwerk, Corp. v. SS Thanasis (N.D. Cal. 1970), 311 F.Supp. 170, 181. However, further discussion is warranted since the Downeys claim prejudice via Christensen’s and Baker Boy’s use of discovery.

First, to succeed in proving waiver, the Downeys were required to prove Christensen and Baker Boy acted inconsistently with their right to arbitrate. Since the Downeys complained of fraudulent inducement of the franchise agreement, it was not unreasonable nor inconsistent with its right to arbitrate, for Baker Boy to engage in discovery to determine whether the Downeys contested the validity of the entire agreement or merely the arbitration clause in the agreement. It is well settled that the district court has jurisdiction only if fraud in the inducement of the arbitration clause is in issue. If the validity of the entire agreement is in issue, the dispute must be submitted to arbitration. Vukasin, 241 Mont. at 132, 785 P.2d at 717; Prima Paint Corp. v. Flood & Conklin Mfg. Co. (1967), 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270.

Proceeding under this authority, Baker Boy’s engagement in pre-arbitration discovery seeking information regarding specific details of the Downeys’ claims was legitimate and cannot be considered inconsistent with its right to arbitrate. Hilti, Inc. v. Oldach (1st Cir. 1968), 392 F.2d 368, 371. Answering on the merits, asserting a counterclaim, and participating in discovery, without more, is insufficient to constitute waiver. Demsey & Assoc. v. S.S. Sea Star (2d Cir. 1972), 461 F.2d 1009, 1018.

Christensen engaged in broader discovery than did Baker Boy by submitting extensive interrogatories and requests for production to the Downeys which sought more information than necessary to determine the existence of the right to arbitrate. This discovery was excessive and inconsistent with Christensen’s right to arbitrate since he sought more information than necessary to determine the extent of the Downeys’ claims.

Second, as the party resisting arbitration, the Downeys possessed the burden of proving that any such inconsistent actions by Christensen or Baker Boy were prejudicial to demonstrate waiver. Demsey & Assoc., 461 F.2d at 1018. Inconsistent acts are examined on a case by case basis to determine if they are prejudicial. Stifel, Nicolaus & Co. Inc. v. Freeman (8th Cir. 1991), 924 F.2d 157, 159. The Downeys have failed to demonstrate prejudice from Christensen’s or Baker Boy’s actions.

The Downeys base their plea of prejudice on the fact that they have complied with Christensen’s and Baker Boy’s discovery requests in full, while Christensen and Baker Boy have not afforded a similar benefit. Since Baker Boy’s discovery requests were not inconsistent with its right to arbitrate, prejudice is not in issue as to this appellant. In any event, Baker Boy’s refusal is harmless since Baker Boy agrees to answer the Downeys’ latest discovery requests if this case is submitted to arbitration.

We have examined Christensen’s discovery request and the answers given the Downeys. We have concluded that no information prejudicial to the Downeys in their arbitration proceeding was obtained by those discovery requests. The Downeys base their entire claim of prejudice on Baker Boy’s failure to respond to discovery. In contrast, the Downeys have not presented any factual basis to demonstrate prejudice as to Christensen.

Throughout these proceedings Christensen and Baker Boy have reminded the Downeys of their intention to rely on the arbitration provision of the franchise agreement as a defense to remove the instant case from the jurisdiction of the District Court. Christensen’s and Baker Boy’s participation in discovery did not cause prejudice sufficient to constitute waiver since Christensen and Baker Boy gave timely notice to the Downeys. Benoay v. Prudential-Bache Sec., Inc. (11th Cir. 1986), 805 F.2d 1437. The Downeys were on notice from the outset and, as a result, any actions they took regarding discovery were taken at their own risk.

Since the Downeys have failed to demonstrate that both Christensen and Baker Boy acted inconsistently with their right to arbitrate or that any inconsistent actions constituted prejudice, waiver does not apply. Therefore, the order of the District Court denying Christensen’s and Baker Boy’s motions to compel arbitration is reversed. This case is remanded to the District Court with directions to order all arbitrable claims submitted to arbitration.

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

JUSTICE HUNT,

dissenting.

I dissent.

The defendants waived their right to arbitration because their actions were inconsistent with their right to arbitrate. The defendants knew they had a right to arbitrate, but elected to proceed through the judicial system. Upon filing of the complaint, defendants could have made a Rule 12(b) motion to dismiss or to stay the proceedings pending arbitration pursuant to 9 U.S.C. § 3 (1987). Instead, the defendants elected to file an answer, with Baker Boy also filing a counterclaim, thereby voluntarily subjecting themselves to the judicial forum.

In addition, the defendants also chose to engage in the discovery process for over six months. They participated in the setting of a discovery schedule, as well as agreeing that the court could set a trial date upon filing a notice of issue. Christensen sent a 48 page set of discovery requests to the Downeys. The Downeys responded to all 76 interrogatories and delivered approximately 950 pages of records and documents. The defendants also began scheduling depositions. All of these actions taken by the defendants were inconsistent with their right to arbitrate.

I also believe the Downeys will be prejudiced by removing the case to arbitration where discovery is not available. While proceeding through the judicial forum, defendants availed themselves of the privileges and protections of Montana’s Rules of Civil Procedure relating to discovery. By removing this case to arbitration, the Downeys will not be afforded the same luxury. The defendants have refused to respond to the Downeys’ discovery requests and only moved for arbitration after the Downeys initiated their discovery. This places the Downeys at an extreme disadvantage. These actions not only prejudice the Downeys, they also represent an abuse of the judicial system. I would affirm the order of the District Court.

JUSTICE TRIEWEILER concurs in the foregoing dissent of JUSTICE HUNT.


author: JUSTICE McDONOUGH

text:
    IN RE THE MARRIAGE OF KELLY JEAN JOHNSON JACOBSON, Petitioner and Respondent, and RODNEY JOSEPH JACOBSON, Respondent and Appellant.
    No. 91-142.
    Submitted on briefs Dec. 12, 1991.
    Decided Jan. 28, 1992.
    49 St.Rep. 92.
    251 Mont. 394.
    825 P.2d 561.

      For Appellant: Mark A. Vucurovich, Henningsen, Vucurovich & Richardson, Butte.
    For Respondent: Deirdre Caughlan, Dunlap & Caughlan, Butte.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from a dissolution action in the Third Judicial District, Deer Lodge County. The District Court ordered the appellant, Rodney Jacobson (Rodney), to make child support payments in the amount of $612 per month and maintenance payments in the amount of $500 per month. Rodney contends the District Court’s treatment of noncash, job related benefits and bonuses was in error and resulted in an award he simply cannot pay. Because the District Court’s award is within the statutory guidelines and is supported by the record, we affirm.

The issues for our review are:

1) Did the District Court err in awarding maintenance in the amount of $500 per month?

2) Did the District Court err in awarding child support at an amount of $612 per month?

The respondent, Kelly Jean Johnson Jacobson (Kelly), and the appellant, Rodney, were married in 1982. Both parties had been previously married. Rodney has two children from his previous marriage. Prior to September, 1990, the time of this action, Rodney made child support payments of $102 per month. Currently, both children appear to five with Rodney and he no longer makes those payments.

One child, Matthew, was bom on August 19,1985, issue of Rodney and Kelly’s marriage. On September 6, 1990, the District Court entered a decree dissolving the parties’ marriage, dividing assets and obligations, providing for the custody and support of Matthew and providing for maintenance to Kelly.

Rodney is employed by and a shareholder in a closely held family ranch corporation, Bud Jacobson and Sons, Inc. The majority shareholder, Rodney’s father, owns 52% of the corporation’s 1,500 shares of stock. Rodney was given 52 shares of stock and purchased 308 more shares in 1974 for $154,000. Rodney’s 360 shares comprise a 24% ownership in the corporation. The terms for the purchase of the 308 shares provide for principal payments in the amount of $7,675 per year and interest payments of 5% per annum on the unpaid balance for a period of twenty years. The record reflects that Rod received bonuses from the corporation to make these payments from 1975 until 1986. The 1987 bonus appears to have covered the principal but not the interest payment. Rodney has been in arrears on this obligation since 1987. Testimony received at trial estimated the corporation’s assets at between $1 and $1.2 million.

Rodney’s current monthly cash income is $1,000. In addition, he receives a house, utilities, a vehicle, gas, clothes and medical insurance. Until 1989, Rodney’s benefits also included groceries; however, his monthly base pay was only $500. The extent of the use of corporate funds for other living expenses is in dispute. Kelly contends that all of their personal expenses could be and often were drawn from the corporate account. It is Rodney’s testimony that personal and business expenses were kept separate.

Rodney’s 1987 tax return reflects gross earnings of $13,675. Rodney testified that his 1988 tax return reflects earnings of $22,500. The District Court found, based on the testimony of the parties and the expert testimony of William Honzel, that Rodney’s wages and benefits reflect a net economic benefit of $4,500 per month.

Prior to the marriage, Kelly earned sixty dollars per week tending bar. Throughout the marriage Kelly stayed at home, helping out with ranch chores and later caring for Matthew. She currently has custody of Matthew and is a student pursuing a degree in computer science and accounting. The record indicates that she has borrowed over $20,000 from a personal friend to pay for the support of herself and the child since the parties separated. The District Court awarded Kelly maintenance and child support. Rodney appeals.

Section 40-4-203(1), MCA, provides the basis for granting maintenance. The spouse seeking maintenance must:

“(a) lack(s) sufficient property to provide for his reasonable needs; and
“(b) is unable to support himself through appropriate employment

We recently held that the criteria of § 40-4-203, MCA, must be satisfied before maintenance can be awarded. Marriage of Eide, (Mont. 1991), [250 Mont. 490,] 821 P.2d 1037, 48 St.Rep. 1054. Furthermore, we made clear that “[a] district court’s wide discretion in determining a maintenance award will not be disturbed unless it is clearly erroneous.” Eide, 48 St.Rep. at 1055; citing In re Marriage of Aanenson (1979), 183 Mont. 229, 235, 598 P.2d 1120, 1123.

Rodney contends that Kelly enjoys a better lifestyle outside of the marriage than enjoyed during the marriage. Furthermore, Rodney contends that Kelly chooses to be unemployed although she would be able to support herself if she so desired. Therefore, Rodney argues, Kelly is not entitled to maintenance. Rodney points to Kelly’s decision to spend her time as a student rather than to work. He asks the Court to infer from the average balance of Kelly’s pre and post marriage checking accounts that an increased average balance, post marriage, reflects an increased standard of living. The District Court declined to make such an inference and so do we.

The record supports the District Court’s finding that the parties enjoyed a lifestyle during marriage which Kelly, without retraining, would be unable to achieve. To achieve a lifestyle more equivalent to that of the marriage, the court ordered Rodney to pay $500 a month in rehabilitative maintenance for three years to enable Kelly to complete her education and become employed.

Section 40-4-203(2), MCA, provides the factors the court must consider in determining the amount and duration of a maintenance award. The factors to be considered are:

“(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
“(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
“(c) the standard of living established during the marriage;
“(d) the duration of the marriage;
“(e) the age and the physical and emotional condition of the spouse seeking maintenance; and
“(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.”

Rodney notes subsection 2(f) above, provides as a factor, the ability of the paying spouse to meet his own needs while meeting the needs of the spouse seeking maintenance. Rodney contends that he has only $1,000 per month of income with no other assets other than the 52 gifted shares of stock. He contends that because his other benefits cannot be converted into cash, there is no way for him to pay $1,112 per month in child support and maintenance and provide for the necessities of his own and his other children’s lives.

We have held that a spouse’s ability to pay maintenance while meeting their own personal expenses is an element that should be given great weight but is not always the determining factor. Marriage of Cole (1988), 234 Mont. 352, 763 P.2d 39. While the District Court’s findings fail to provide the basis for Rodney’s financial ability to provide the amount awarded, there is evidence in the record that it is regular practice for the corporation to declare bonuses to pay expenses that Rodney has incurred. It is difficult to clearly discern from the record the accounting methods employed by the corporation; however, several examples are provided where the corporation met Rodney’s obligations that extended beyond his monthly draw. In addition to corporate bonuses allowing Rodney to make his payments for shares of corporate stock, we note corporate bonuses were declared allowing Rodney to make $50,000 in payments to his previous wife following dissolution of their marriage.

Rodney presented evidence and argues that the corporation is not financially able to declare bonuses at this time because any income it receives is directly paid to Bud and Edna Jacobson who have individually loaned the corporation $166,000 for operating expenses. In Marriage of Cole we determined that a partnership whose profits were committed to servicing the partnership’s debt was still an income producing asset for purposes of maintenance. Marriage of Cole, 234 Mont, at 358. In the instant case, we conclude that Rodney’s interest in Bud Jacobson and Sons, Inc., is an income producing asset.

The District Court explicitly awarded maintenance to allow Kelly to re-train herself, gain employment, and to have a standard of living more closely aligned with that of the marriage. These are all proper factors for the court to consider in determining the amount and duration of a maintenance award. Furthermore, because the majority of the property was owned by the corporation, Rodney continues to benefit from its use while Kelly has nothing therefrom. The decision of the District Court to award maintenance at an amount of $500 per month is supported by substantial evidence, is not clearly erroneous and is affirmed.

We now turn to the award of child support. The court determined that under the Uniform Child Support Guidelines, [227 Mont. 2,] 13.6% of the parties income should be contributed to child support. The 13.6% was based upon and applied to the court’s finding that the parties enjoyed a standard of living such that the economic benefit derived from Rodney’s work for the corporation was equivalent to $4,500 per month. Absent a clear showing of abuse of discretion a district court’s award of child support will be upheld. Marriage of Mitchell (1987), 229 Mont. 242, 245, 746 P.2d 598, 600. (Citations omitted.)

Rodney contends the court erred in its valuation of his income and as a result have made an award beyond his means. Conclusion of law 9 entered by the District Court states:

“9. That during the course of the marriage, the parties received corporate benefits from Bud Jacobson & Sons in addition to the salary received. That the average monthly benefits exclusive of the salary are reflected in Petitioner’s ‘Exhibit 5’ presented at the temporary maintenance hearing and incorporated by reference at the trial and are summarized as follows:
“ ‘A. That the corporation paid monthly bills in a sum ranging from $1,384.00 to $3,016.00, exclusive of rent averaging $2,177.00 per month.
“ ‘B. That the parties received the use of a 4 bedroom, 3 bathroom house, gasoline, use of corporate vehicles and ranch food products valued at approximately $1,000.00 per month.
“ ‘C. That the wages in 1987 were approximately $1,666.00 per month.’
“That such benefits and wages reflect a net economic benefit of a value of approximately $4,500.00.”

Rodney first argues that the court based his monthly income on the 1987 tax returns and determined it to be $1,666 per month when in fact the 1987 tax return shows an average monthly income of $1,114 per month. We have recommended that the court consider at least two years of income tax returns when determining the gross income of an obligor parent. A Uniform District Court Rule on Child Support Guidelines (1987), 227 Mont. 1, 5. Rodney testified that his 1988 tax return indicated earnings of $22,500 or $1,875 per month. While it is not clear how the court arrived at the figure of $1,666, the evidence makes clear that it is not excessive. Furthermore, the court is not bound by federal or state income tax returns in determining the monthly income. Marriage of Sullivan (1990), 243 Mont. 292, 794 P.2d 687.

Next, Rodney argues that the court improperly placed a rental value of $2,177 per month on the corporate home. We disagree. Our reading of the challenged finding indicates the court valued the home, gasoline, use of corporate vehicles and ranch food products at $1,000 per month. The $2,177 was allotted as an average for other bills and expenses.

The District Court relied on the expert testimony of William Honzel in determining the overall value of compensation Rodney received for his work for the corporation. The District Court’s use of $4,500 as monthly income for purposes of computing child support is supported by credible evidence. It was not an abuse of the court’s discretion to accept Honzel’s testimony. We conclude that child support in the amount of $612 per month was appropriately based on the Uniform Guidelines and evidence presented to the court. The District Court did not abuse its discretion and is therefore affirmed.

Affirmed.

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


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT GORDON BENTON, Defendant and Appellant.
    No. 91-293.
    Submitted on briefs Dec. 4, 1991.
    Decided Jan. 28, 1992.
    49 St.Rep. 95.
    251 Mont. 401.
    825 P.2d 565.

      For Appellant: Don Vernay Attorney at Law, Kalispell.
    For Respondent: Marc Racicot, Attorney General, and Cregg W. Coughlin, Assistant Attorney General, Helena; Ted O. Lympus, Flathead County Attorney, Kalispell.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

On June 11,1990, the State of Montana filed an Information in the Eleventh Judicial District Court in Flathead County, charging Robert Gordon Benton with attempted deliberate homicide. The case was tried before a jury on September 24 and 25, 1990. At the conclusion of the evidence, the District Court instructed the jury on attempted deliberate homicide and aggravated assault, a lesser included offense. The jury acquitted Benton on the attempted deliberate homicide charge but convicted him on the aggravated assault charge. Benton appeals. We affirm.

The issues are:

1. Did the District Court err when it refused to allow Benton to inquire into the victim’s prior arrest for felony assault?

2. Did the District Court err when it denied Benton’s motion for mistrial based on the introduction of evidence that Benton had previously been convicted of child molesting?

3. Did the District Court err when it refused to give a cautionary instruction sua sponte after the introduction of evidence that Benton had previously been convicted of child molesting?

On April 26, 1990, the Flathead County Office of the Department of Family Services wrote to Laurie Sirucek, Benton’s girlfriend, and told her that Benton had been convicted of chil d molesting in Oregon. In fact, Benton had been convicted of sexual abuse, not child molesting, and the victim in that case was 32 years old. Ms. Sirucek showed the Family Services letter to Benton’s friends Larry Poston and Douglas Rushford. Poston and Rushford then told Benton they wanted nothing further to do with him.

On May 16, 1990, Poston and Rushford were drinking at the Log Cabin Bar in downtown Kalispell when Benton walked in. Poston and Benton began arguing about the letter. Benton then invited Poston to step outside. Rushford insisted that anyone who went outside should go out the front door so that there would be witnesses. Benton went out the front door and Rushford followed.

A physical altercation followed, and Benton stabbed Rushford in the chest. Rushford testified that Benton stabbed him without warning. Benton, on the other hand, testified that he had the knife out to deter Rushford and that when Rushford charged him he held the knife out to defend himself. Benton fled. Rushford returned to the bar and passed out.

The case was tried before a jury on September 24 and 25, 1990. Benton relied on the affirmative defense of justifiable use of force. The jury found Benton guilty of aggravated assault. The District Court sentenced Benton to 20 years at Montana State Prison for the aggravated assault and added 10 years for use of a weapon. The court also designated Benton as a dangerous offender for parole eligibility purposes. Benton appeals from the judgment and sentence of the District Court.

I

Did the District Court err when it refused to allow Benton to inquire into the victim’s prior arrest for aggravated assault?

Before trial, Benton asked the District Court whether he could introduce evidence that Rushford was facing pending aggravated assault charges in Arizona. The court refused to permit this evidence on the grounds that it was irrelevant unless Benton knew of the charges at the time of the fight with Rushford, and that it was of little probative value in any event.

Benton now argues that this was reversible error. He cites State v. Logan (1970), 156 Mont. 48, 473 P.2d 833, for the proposition that proof of knowledge of the victim’s character by the defendant is unnecessary when the issue concerns which party was the aggressor. Benton also argues that Rule 404(b), M.R.Evid., and State v. Just (1979), 184 Mont. 262, 602 P.2d 957, do not expressly require a balancing of probative value against unfair prejudice when the evidence tends to impugn the character of someone other than the defendant.

Benton is correct to the extent that probative evidence of Rushford’s character would have been admissible under Logan to show that Rushford was the aggressor. In fact, the District Court allowed Benton to inquire into other instances of Rushford’s conduct in order to show that he had a disposition to violence. However, the District Court did not err in excluding Benton’s proposed evidence about Rushford’s assault charges because that evidence lacked probative value.

Although Rule 404 and Just did not require the exclusion of this evidence, it was nonetheless inadmissible under Rule 403, M.R.Evid. Rule 403 provides that “[ajlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ....” We agree with the District Court that the danger of unfair prejudice to the State clearly outweighed the probative value of the evidence in question, because the evidence concerned only charges, not a conviction. Furthermore, the charges were two years old at the time of trial.

We hold that the District Court did not err when it refused to allow Benton to inquire into the victim’s prior arrest for aggravated assault.

II

Did the District Court err when it denied Benton’s motion for mistrial based on the introduction of evidence that Benton had previously been convicted of child molesting?

At the close of his own case in chief, Benton moved for a mistrial based on Rushford’s inaccurate testimony that Benton was previously convicted of child molesting. The District Court denied this motion, and Benton now argues that this was reversible error. We disagree.

A mistrial is appropriate only upon a demonstration of manifest necessity coupled with the denial of a fair and impartial trial. State v. Clawson (1989), 239 Mont. 413, 423, 781 P.2d 267, 273-74. We will not overturn a lower court’s denial of a motion for mistrial in the absence of clear and convincing proof of error. State v. Gambrel (1990), 246 Mont. 84, 91, 803 P.2d 1071, 1075-76.

Before trial, the parties agreed that evidence about the false child molesting accusation was necessary in order to show how the fight started. In fact, evidence of this false accusation was critical to Benton’s theory that he approached Poston and Rushford in the Log Cabin Bar in order to set the record straight by explaining that the accusation was inaccurate. Benton now argues that while the jury should have heard that he was falsely accused of child molesting, it should not have heard inaccurate evidence that he was convicted of that offense.

At most, however, the introduction of this evidence was harmless error. Rushford, the State’s own witness, testified that he had no knowledge of a conviction other than the allegations in the letter from Family Services. Furthermore, the testimony itself was true — the letter did indeed indicate that Benton had been convicted of child molesting, and Rushford and Poston apparently believed it to be accurate. Benton then took the stand and unequivocally denied that he had ever been arrested or convicted for child molesting. The State made no attempt to rebut this testimony. Furthermore, the State did not attempt to place the fact of Benton’s sexual abuse conviction before the jury.

We conclude that Benton has not carried his burden of showing how the introduction of the evidence in question denied him a fair and impartial trial. We hold that on this record the District Court did not err in denying Benton’s motion for a mistrial based on the introduction of inaccurate evidence that he was convicted of child molesting.

Ill

Did the District Court err when it refused to give a cautionary instruction sua sponte after the introduction of evidence that Benton had previously been convicted of child molesting?

The District Court did not give a cautionary instruction after the State introduced testimony about the letter from Family Services. Benton now argues that the court should have given such an instruction and that its failure to do so constitutes reversible error. We disagree. If a cautionary instruction was required, Benton should have proposed one to the court.

Section 46-16-40l(4)(a), MCA (1989), the statute in effect the time of trial, provided that:

“When the evidence is concluded, if either party desires special instructions to be given to the jury, such instructions shall be reduced to writing, numbered, signed by the party or his attorney, and delivered to the court.” [Emphasis added.]

In State v. Close (1981), 191 Mont. 229, 244, 623 P.2d 940, 948, we applied this statute in refusing to consider an alleged error predicated on the lack of a cautionary instruction because the defendant in that case had not offered the necessary instruction.

In this case, the burden of drafting and offering the necessary instruction fell on Benton. We hold that the District Court did not err by not giving a cautionary instruction because Benton did not offer one.

The judgment of the District Court is affirmed.

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