author: JUSTICE TRIEWEILER JUSTICE GRAY,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. STEVEN HENRICH, Defendant and Appellant.
    No. 93-618.
    Submitted on Briefs October 28, 1994.
    Decided December 8, 1994.
    51 St.Rep. 1275.
    268 Mont. 258.
    886 P.2d 402.

      For Appellant: Anne H. Watson, Watson and Watson, Bozeman.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, George Schunk, Assistant Attorney General, Helena; Mike Salvagni, Gallatin County Attorney, Gary Balaz, Deputy County Attorney, Bozeman.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

On April 23, 1993, defendant Steven Henrich was charged by information filed in the District Court for the Eighteenth Judicial District in Gallatin County with endangering the welfare of children, a misdemeanor, in violation of § 45-5-622(2)(a)(i), MCA; sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA; incest, a felony, in violation of § 45-5-507, MCA; two counts of sexual assault, a felony, in violation of § 45-5-502, MCA; and two counts of assault, a misdemeanor, in violation of § 45-5-201(l)(a), MCA. On September 24, 1993, the State filed an amended information amending one count of misdemeanor assault to felony assault in violation of § 45-5-201(3), MCA, and adding additional facts in support of other charges. Following a jury trial which was conducted from September 27-29, 1993, Henrich was convicted of six of the seven offenses charged, sentenced to 22 years in the Montana State Prison, and designated a dangerous offender. Henrich appeals. We affirm in part and reverse in part.

The issues on appeal are rephrased as follows:

1. Did the District Court abuse its discretion when it refused to grant Henrich’s motion for a mistrial and motion for a new trial based on a newspaper article about additional charges against Henrich published in the Bozeman Chronicle the day before the case was submitted to the jury?

2. Did the District Court abuse its discretion and did prejudice result when it allowed the jury to listen to a portion of one of the victim’s recorded testimony during deliberations?

3. Was there sufficient evidence for the jury to convict Henrich?

4. Did the District Court abuse its discretion when it allowed a school counselor to testify regarding a complaint made by one of the victims?

5. Did the District Court err when it concluded that Henrich is a dangerous offender?

6. Did the District Court err when it sentenced Henrich to the Montana State Prison?

FACTUAL BACKGROUND

Steven Henrich is married to Patricia Henrich. They are the parents of M.H., born on January 22, 1976, and A.H., born on May 9, 1977. Both daughters were removed from their parents’ home after A.H. complained in February 1992 that Henrich had physically and sexually abused her sister over a period of five years. At trial, the girls related the following history of abuse prior to their removal.

M.H. testified that in 1987, while the family lived in West Yellowstone, Henrich would occasionally take her to the woods under the pretext that they were going to shoot weapons. Instead of shooting, M.H. said that Henrich fondled her and had her perform sexual acts for his physical gratification. This conduct was the basis for one count of felony sexual assault.

After they lived in West Yellowstone, but before they moved to Belgrade, Henrich worked as a chef at Big Sky and lived in the dormitories with M.H. M.H. testified that while living in the dormitories, Henrich had sexual intercourse with her. She also testified about several different time periods during which Henrich had intercourse with her at other locations from 1988 to 1992. M.H. testified that the sexual acts were a routine that she complied with because she was afraid of Henrich. These acts were the grounds for the charge of sexual intercourse without consent.

M.H. testified that in the fall of 1989, when she was in the eighth grade, she attended a Halloween dance against Henrich’s wishes. Upon returning from the dance, M.H. stated that Henrich backhanded her and spanked her with a cribbage board. This conduct was the basis for one count of misdemeanor assault.

M.H. testified that in February 1992, Henrich had her take speed or methamphetamine prescribed for him. This was the basis for the charge that he endangered the welfare of a child.

A.H. alleged that she was also a victim of Henrich’s abuse. She testified that in 1991 or 1992 Henrich, on different occasions, backhanded her in the face, kicked her in the stomach, and threw the telephone and electrical tape at her. This conduct was the basis for a second count of misdemeanor assault. Her testimony that he rubbed her crotch and vagina was the basis for the second count of sexual assault.

These allegations of physical and sexual abuse were first revealed when A.H. reported the occurrences to Belgrade school counselors in February of 1992. Following A.H.’s report, she and M.H. were removed from their parents’ home.

This case was tried from September 27-29,1993. On September 28, 1993, before the jury began deliberations, the Bozeman Chronicle published two stories about Henrich. One article merely summarized the trial. A second article was shaded and entitled “Man faces pimping charges,” and involved additional charges filed against Henrich on September 17, 1993.

The next morning, Judge Thomas A. Olson discussed the articles with both attorneys. Henrich’s counsel immediately moved for a mistrial because of the publicity. The court instead questioned each juror individually in chambers to determine if any had read the article. Judge Olson placed paper over the title and sat 10 to 12 feet from the jurors and asked each juror the following series of questions:

1. Did that juror subscribe to the Bozeman Chronicle?

2. Did that juror see the Chronicle the preceding evening?

3. Did that juror see the shaded article or the article next to it about the trial?

4. Did anyone tell that juror about the shaded article or call their attention to it?

5. Did that juror see the television story about the trial on Channel 7 the previous night?

None of the jurors stated that they read or heard about details of the article; nor did any state that they had observed or heard about the details of the television coverage. As a result, the court allowed the trial to continue. Henrich’s counsel again objected.

As the jury was deliberating, they sent a note requesting to hear M.H.’s testimony, beginning with a specific question the prosecutor asked M.H. The court sent back the note and requested the jury to indicate the extent of the requested testimony. After the jury responded, the court discussed the request with counsel and replayed that portion of the testimony for the jury. The jury continued deliberating and later returned a verdict that Henrich was guilty of six of the seven counts with which he was charged. The court had dismissed the charge of incest following Henrich’s motion for a directed verdict.

Finally, after a sentencing hearing during which the court heard testimony from a professional counselor, a psychologist, Henrich, his wife, and others, the court sentenced Henrich to 22 years in prison and designated him a dangerous offender. Henrich claims numerous errors warrant reversal of his convictions. We affirm in part and reverse in part.

ISSUE 1

Did the District Court abuse its discretion when it refused to grant Henrich’s motion for a mistrial and motion for a new trial based on a newspaper article about additional charges against Henrich published in the Bozeman Chronicle the day before the case was submitted to the jury?

Our standard of review from a district court’s denial of a motion for mistrial is whether there is clear and convincing evidence that the trial court’s ruling was erroneous. State v. Greytak (1993), 262 Mont. 401, 404, 865 P.2d 1096, 1098. We review a court’s decision to deny a motion for a new trial to determine whether there is a showing of manifest abuse of discretion. Geiger v. Sherrodd, Inc. (1993), 262 Mont. 505, 508, 866 P.2d 1106, 1108. Henrich argues that he was denied a fair trial in violation of the Sixth Amendment of the U.S. Constitution and Article II, Section 4, of the Montana Constitution, because of the second newspaper article. The article was entitled “Man Faces Pimping Charges,” and discussed charges filed against Henrich on September 17, 1993.

Henrich would have us conclude that the article was prejudicial per se and require a new trial. This case does not involve a situation of continuous and massive pretrial publicity giving rise to due process implications, as in Estes v. Texas (1965), 381 U.S. 532, 85 S.Ct. 1628, 14 L. Ed. 2d 543. This case is more analogous to our previous decisions regarding prejudicial news releases during a trial. See State v. Kirkland (1979), 184 Mont. 229, 602 P.2d 586; State v. Weaver (1981), 195 Mont. 481, 637 P.2d 23.

In Kirkland, television broadcasts during the trial labeled the defendant as a hired killer. The district court denied the defendant’s motion for a mistrial and admonished the jury to decide the case based on the evidence presented and not to listen to radio or television broadcasts or read newspaper reports. We discussed what action is required of a district court when prejudicial news releases appear during trial and noted that we must determine whether the news releases tainted any of the jurors. Kirkland, 602 P.2d at 592. We refused to adopt a rule that would require the court to voir dire each juror individually.

We held that the determination of whether a defendant’s right to a fair trial had been prejudiced by publicity is within a district court’s sound discretion. Kirkland, 602 P.2d at 594 (citing Marshall v. United States (1959), 360 U.S. 310, 79 S. Ct. 1171, 3 L. Ed. 2d 1250). We reaffirmed this notion in Weaver. In Weaver, the defendant claimed he was denied a fair trial because of prejudicial newspaper articles. The trial court admonished the jury to rely only on the evidence presented in court and not to read the newspaper. We noted that Montana does not require a district court to individually question jurors regarding publicity, but rather it is within the trial court’s discretion to determine whether newspaper articles are prejudicial. Weaver, 637 P.2d at 28. We required a defendant to show lack of due process or actual juror partiality. Weaver, 637 P.2d at 28-29. We concluded that the court’s admonitions were sufficient to cure any possible prejudice. Weaver, 637 P.2d at 29.

In this case, Judge Olson admonished the jury not to let any other person talk to them about the trial, and not to read about the case in the newspapers, or listen to radio or television broadcasts about the trial. After the story appeared in the newspaper, Judge Olson individually questioned the jurors to determine the extent to which they were exposed to, or influenced by, the article. They all denied reading the article or knowing of its contents. Nothing in their responses indicates prejudice from the article. To hold otherwise would require the conclusion that the jurors were not truthful when they responded to the court’s questions. We have no basis for such a conclusion. Nor has Henrich offered any. We conclude that the District Court did not abuse its discretion by the manner in which it determined whether unfavorable news stories were prejudicial to Henrich and did not err when it denied Henrich’s motions for a mistrial and for a new trial.

ISSUE 2

Did the District Court abuse its discretion and did prejudice result when it allowed the jury to listen to a portion of one of the victim’s recorded testimony during deliberations?

Our standard of review of a district court’s decision to allow or disallow a jury’s request to replay trial testimony is whether the district court abused its discretion. State v. Evans (1993), 261 Mont. 508, 511, 862 P.2d 417, 418. Henrich claims that the District Court committed reversible error by allowing a portion of M.H.’s testimony to be replayed for the jury during its deliberations.

Montana statutorily altered the common law rule that did not allow the trial court to reread a transcript of a witness’s testimony or to replay recorded testimony during deliberations. 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 common law rule was designed to prevent undue emphasis being placed on materials given to the jury as opposed to other evidence in the case. We have recognized that this rule still applies in most cases. Evans, 862 P.2d at 419.

Recognizing § 46-16-503(2), MCA, and the difficulty of allowing testimony to be replayed, this Court has imposed a stringent requirement upon district courts faced with this issue. We set forth a specific instruction for these circumstances in State v. Harris (1991), 247 Mont. 405, 808 P.2d 453, and restated it in Evans, 862 P.2d at 419-20. When dealing with requests from the jury about witness testimony, the courts should answer the request with this instruction:

It would be error for me to furnish you with a transcript of any particular witness for the reason that in rendering your verdict, you should not give any undue emphasis to the testimony of any one witness to the exclusion of all others. Instead, you should consider all of the evidence as a whole in rendering your verdict. However, if you have some particular reason or point that you are trying to resolve that relates to the evidence of this witness, you may submit that question to me in written form, and I will give it consideration.

Harris, 808 P.2d at 460.

In Harris, we acknowledged that testimony should be reread to the jury only in limited circumstances contemplated by § 46-16-503(2), MCA. An example would be a witness’s testimony regarding basic factual matters like “the width of a street, the height of an object, distance, time or some other limited request, but not the entire testimony of the witness.” Harris, 808 P.2d at 460.

In this case, Judge Olson ensured that M.H.’s entire testimony was not replayed. He also consulted the jury regarding the extent of the testimony that it was requesting. In spite of these precautions, we conclude that the District Court erred by failing to give the instruction set forth in Harris.

However, before a procedural error is a basis for reversal, it must be shown to have been prejudicial. Section 46-20-701, MCA. After listening to that portion of M.H.’s testimony which was replayed for the jury, we conclude that Henrich was not prejudiced by the court’s failure to give the Harris instruction.

We have previously concluded that it is prejudicial to replay testimony if it would emphasize the testimony of one witness where several other witnesses have testified about the same point. Evans, 862 P.2d at 420.

In Evans, the defendant was charged with obstructing justice. A critical element was whether the defendant knew the person hiding in his home was an offender. Several witnesses testified to this crucial element, including a detective. The jury requested to rehear part of the detective’s testimony, and the court refused the request. We affirmed the district court because replaying the detective’s testimony on a critical point of proof about which several witnesses testified would emphasize the detective’s testimony over several others. Evans, 862 P.2d at 420.

The same concern was not present in this case. There were not numerous witnesses who testified to the acts with which the replayed portion of M.H.’s testimony was concerned. The only witnesses were M.H. and Henrich. The fact that her testimony had to be balanced against Henrich’s denial was obvious, and thus, an instruction to that effect was not as critical as it would be under other circumstances which we have considered. We conclude that although the District Court erred by replaying a portion of M.H.’s testimony without first giving the proper instruction to the jury, the record does not demonstrate that the error was prejudicial.

ISSUE 3

Was there sufficient evidence for the jury to convict Henrich?

The standard of review is whether the evidence viewed in a light most favorable to the State would permit any rational trier of fact to conclude that the elements of the crimes charged were proven beyond a reasonable doubt. State v. Cates (1990), 241 Mont. 282, 285, 787 P.2d 319, 321. Henrich argues that the only evidence supporting his conviction was testimony by A.H. and M.H. He claims that their testimony is not credible because they are minors who made inconsistent statements, had a history of making false accusations, and had a motive to fabricate their testimony.

Substantial evidence is evidence that a reasonable mind might accept as sufficient to support a conclusion. State v. Wilson (1981), 193 Mont. 318, 327, 631 P.2d 1273, 1278. In sex offense cases, including those that involve small children, the victims’ testimony need not be corroborated. State v. Gilpin (1988), 232 Mont. 56, 70, 756 P.2d 445, 453. The weight and credibility of witnesses is exclusively within the province of the jury. State v. Urness (1989), 239 Mont. 58, 60, 778 P.2d 419, 421.

Henrich would have us conclude that A.H.’s and M.H.’s testimony was not credible. However, the previous authorities are based on the notion that jurors are in the best position to draw or reject that conclusion. In this case, they rejected it.

Furthermore, except for the incest charge which was dismissed by directed verdict, and Count 1, Henrich did not allege at the time of trial that the testimony was insufficient to establish the elements of the specific offenses charged. Therefore, that claim was waived for purposes of appeal, except for Count 1, which related to endangerment of a child in violation of § 45-5-622(2)(a)(i), MCA.

Henrich argues that the evidence is insufficient to establish that he was guilty of endangering the welfare of children pursuant to § 45-5-622(2)(a)(i), MCA, by supplying M.H. with an intoxicating substance. An intoxicating substance is a controlled substance as defined in Title 50, Chapter 32, MCA. Methamphetamine, the alleged drug given to M.H., is a controlled substance as defined in § 50-32-224(3)(c), MCA. The jury found Henrich guilty of this offense based solely on M.H.’s testimony that Henrich gave her speed or methamphetamine that was prescribed for him.

We have recognized that it is not necessary to have a suspected intoxicating substance tested by the state crime lab to substantiate a conviction for a drug related offense. State v. Salois (1988), 235 Mont. 276, 279, 766 P.2d 1306, 1309. Like other elements of a criminal offense, proof that a drug is an intoxicating substance may be established by circumstantial evidence. State v. Dunn (1970), 155 Mont. 319, 472 P.2d 288. To justify a conviction based on circumstantial evidence that a substance is a dangerous drug or intoxicating substance, however, the facts and circumstances must be entirely consistent with guilt and inconsistent with any other rational theory. State v. Starr (1983), 204 Mont. 210, 215, 664 P.2d 893, 896 (citing State v. Stoddard (1966), 147 Mont. 402, 412 P.2d 827).

In Dunn, the defendant gave two teenage girls pills alleged to be LSD. The girls both testified that they hallucinated from the drugs. In addition, a doctor expressed an opinion that the drugs were LSD, or a combination of LSD and an amphetamine, and a parent of one of the girls described her behavior as she hallucinated. Dunn, 472 P.2d at 296-97.

However, the circumstantial evidence in this case was not sufficient to establish Henrich was guilty of the charged offense. M.H.’s unqualified opinion is insufficient to establish that the alleged drug was methamphetamine. The State did not introduce a bottle of the pills, any analysis of the pills, or any expert analysis of M.H.’s reaction to the pills. Her testimony that she shook, was wide awake, and that her hair tingled from ingestion of the substance was not supported by other testimony, as in Dunn.

We conclude that substantial evidence did not support the jury’s conclusion that Henrich gave M.H. methamphetamine. Therefore, his conviction for endangering the welfare of children is reversed.

We conclude that Henrich’s other convictions were supported by substantial evidence.

ISSUE 4

Did the District Court abuse its discretion when it allowed a school counselor to testify regarding a complaint made by one of the victims?

Henrich moved for a mistrial based on the admission of hearsay evidence. We will affirm a district court’s denial of a motion for mistrial unless there is clear and convincing proof that the district court erred in its ruling. Greytak, 865 P.2d at 1098.

Neil Bricco, a Belgrade school counselor, testified about a meeting he had with A.H. on February 28, 1992. At this meeting, A.H. told Bricco about the sexual and physical abuse, including abuse of M.H. The court decided to allow Bricco to testify about what A.H. told him regarding her situation. However, Bricco began to testify that A.H. told him that Henrich sexually abused M.H. Henrich objected to this testimony and requested a mistrial. The court ordered that the testimony of Bricco regarding the abuse of M.H. be stricken, admonished the jury to ignore it, and denied Henrich’s motion for a mistrial.

The district court is in the best position to determine the jurors’ reaction to inadmissible evidence and to decide whether a mistrial is necessary. State v. Seaman (1989), 236 Mont. 466, 475-76, 771 P.2d 950, 956. Here, the court properly ordered the testimony stricken and admonished the jury. In addition, A.H. testified personally that she told Bricco about M.H.’s abuse. Henrich has failed to establish clear and convincing proof that the District Court erred when it denied his motion for a mistrial, or that Bricco’s testimony was more harmful than A.H.’s testimony to the same facts in person.

Henrich challenges other aspects of Bricco’s testimony. The prosecutor asked Bricco “[h]ow open are children who have been sexually abused to talking about that with a counselor.” Henrich objected, stating that Bricco was not qualified to render an opinion on this issue. The court overruled the objection and Bricco responded that the abuse is usually kept within the family. Henrich now argues that Bricco lacked personal knowledge to answer this question, or was not an expert qualified to render an opinion on this issue, and Bricco’s testimony improperly bolstered A.H.’s testimony.

We do not decide whether Bricco’s testimony is relevant evidence, but only address the issue raised by Henrich’s objection, i.e., whether Bricco was qualified or had personal knowledge. Rule 602, M.R.Evid., states:

A witness may not testify as to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.

Bricco testified that he was a school counselor for seven years. He did not specialize in counseling sexually abused children, but did encounter them while providing general counseling. He stated that he saw hundreds of children in the two years he counseled at Belgrade. Of these children, Bricco stated that about ten percent were sexually abused. He discussed sexual abuse with numerous children. How open children were about sexual abuse was, therefore, a matter of his personal counseling experience. We conclude that Bricco was merely stating a personal observation, and that the District Court did not err when it admitted his testimony.

ISSUE 5

Did the District Court err when it concluded that Henrich is a dangerous offender?

A district court is required to articulate its reasons for its determination that an offender is a dangerous offender and must do more than merely recite the statutory language. State v. Morrison (1993), 257 Mont. 282, 287-88, 848 P.2d 514, 517-18. Henrich argues that the court erred when it determined that he was a dangerous offender for purposes of parole eligibility. Although he cites no case authority, and does not claim that the court failed to articulate its reasons, he asserts several challenges.

Henrich’s main argument is that evidence did not support the court’s dangerous offender determination. The court shall designate an offender as nondangerous for parole eligibility purposes if the court has determined, based on the presentence report, evidence at trial, and the sentencing hearing, that the offender “does not represent a substantial danger to other persons or society.” Section 46-18-404(1), MCA. If the court determines that the offender is dangerous, that determination shall be made part of the sentence imposed and shall be stated in the judgment. Section 46-18-404(3), MCA.

The District Court considered the presentence investigation report, evidence at trial, and the sentencing hearing. Because of the nature and the duration of the abuse, the court found that Henrich was a substantial danger to his daughters. Posing a threat of harm to others is a sufficient basis for designation as a dangerous offender.

Henrich also argues that we should reverse the District Court’s dangerous offender designation because he was not given notice before trial in violation of his due process rights. We disposed of a similar argument in State v. Krantz (1990), 241 Mont. 501, 788 P.2d 298, cert. denied (1990), 498 U.S. 938, 111 S.Ct. 341, 112 L.Ed.2d 306, where we stated that notice of the sentencing hearing itself is sufficient notice of a potential dangerous offender designation because the sentencing court is required to consider the issue. Krantz, 788 P.2d at 305.

Finally, Henrich asserts that we should reverse the court’s dangerous offender finding because there is no proof beyond a reasonable doubt that Henrich is dangerous. Dangerousness is not an element of the offenses charged and need not be proven beyond a reasonable doubt. Rather, the Montana Legislature has decided that the dangerous offender determination is a sentencing factor. Krantz, 788 P.2d at 305. We conclude that the District Court articulated sufficient reasons when it determined Henrich was dangerous to other persons, and that his designation as a dangerous offender did not violate Henrich’s right to due process.

ISSUE 6

Did the District Court err when it sentenced Henrich to the Montana State Prison?

Henrich contends that his sentence to the Montana State Prison was contrary to our decision in State v. Imlay (1991), 249 Mont. 82, 813 P.2d 979, cert. dismissed (1992),___ U.S._, 113 S. Ct. 444, 121 L. Ed. 2d 310. In Imlay, the defendant’s prison sentence for sexual assault was suspended on the condition that he complete a sexual therapy program. The defendant attended sexual therapy programs but refused to admit his guilt, which was a prerequisite to completion of any treatment program. As a result, his suspended sentence was revoked and the defendant was sentenced to prison. In Imlay, we held that the defendant was punished for exercising his right against self-incrimination, as protected by the Fifth Amendment, because he was sentenced to prison for refusing to confess to the crime. Imlay, 813 P.2d at 985.

Henrich’s main challenge stems from a counselor’s presentence sexual evaluation that recommended incarceration because Henrich continued to deny his guilt and rehabilitation was unlikely. Henrich objected to the report, claiming it violated rights protected by the Fifth Amendment to the U.S. Constitution, as set forth in Imlay.

Imlay does not prevent a professional counselor from testifying at the sentencing phase that, in his or her opinion, a defendant ought to be incarcerated. Rather, Imlay prevents a sentencing court from incarcerating a defendant for refusing to confess to the crime in order to complete treatment that is a condition of a suspended sentence.

At the sentencing hearing held October 28, 1993, the court indicated it considered Henrich’s characteristics, the presentence investigations, criminal record, conduct, and psychological reports. The District Court decided that Henrich’s prospects of rehabilitation were slim, that the crimes continued over a significant time period, and that Henrich was dangerous. The court considered other alternatives, but Henrich was sent to prison for punishment because of the severity of his crimes and the slim prospects for rehabilitation, not because he failed to admit his guilt. Therefore, we conclude that the District Court did not err when it sentenced Henrich to the Montana State Prison.

We affirm in part and reverse in part the judgment of the District Court.

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

JUSTICE GRAY,

dissenting.

I concur in the Court’s opinion on all issues except issue 2, whether the District Court abused its discretion in allowing the jury to listen to a portion of one of the victim’s recorded testimony. On that issue, I agree with most of the Court’s analysis, but dissent from its conclusion that no prejudice resulted. As a result, I disagree with the Court’s resolution of issue 2.

The portion of M.H.’s testimony which was replayed for the jury was specific to acts of sexual intercourse and sexual abuse between M.H. and Henrich alleged to have occurred in January and February of 1992. The only testimony regarding those acts came from M.H. and Henrich; needless to say, those testimonies were contradictory. Clearly, the jury’s determinations regarding the credibility of the witnesses and the weight to be given to the respective and opposite versions of events offered by the State and Henrich were critical factors here.

Under such a circumstance, and given the emotional nature of M.H.’s testimony replayed to the jury, I cannot agree with the Court’s conclusion that Henrich was not prejudiced. Under these circumstances, replaying that portion of M.H.’s testimony unduly emphasized the testimony of the victim over that of the accused, to the prejudice of the latter. I conclude that the District Court abused its discretion in allowing the jury to hear again the portion of M.H.’s testimony at issue here.


source: Caselaw Access Project

author: JUSTICE HUNT JUSTICE NELSON

license: Public Domain

text:
    MARK R. KLAWITTER and SANDRA B. KLAWITTER, Plaintiffs and Respondents, v. ETTA W. DETTMANN and JEAN R. BLEKEN, Defendants and Appellants.
    No. 94-173.
    Submitted on Briefs September 22, 1994.
    Decided December 13, 1994.
    51 St.Rep. 1296.
    268 Mont. 275.
    886 P.2d 416.

      For Appellant: Jack Yardley, Yardley and Yardley, Livingston.
    For Respondent: William S. Dockins, Williams, Jent & Dockins, Bozeman.
   JUSTICE HUNT

delivered the Opinion of the Court.

Mark and Sandra Klawitter (Buyers) sued Etta Dettmann and Jean Bleken (Sellers) for specific performance of a real estate buy/sell agreement. The parties filed cross-motions for summary judgment. The Sixth Judicial District Court, Park County, granted the Buyers’ motion and denied Sellers’ motion. The District Court entered judgment decreeing specific performance in favor of Buyers. Sellers appeal. We affirm in part, reverse in part, and remand.

We frame the issues on appeal as follows:

1. Did the District Court err in determining that the May 3,1993, agreement constituted a binding real estate buy/sell agreement?

2. Did the District Court err by construing the language of the inspection clause in the buy/sell agreement?

On May 3, 1993, Buyers and Sellers signed a standard realtor’s buy/sell agreement. Sellers offered to sell and Buyers offered to buy a home and land located at 319 South 12th in Livingston for the sum of $125,000. Buyers requested that their purchase be conditioned upon an inspection of the home, including a radon gas test. Based on this request, Sellers’ real estate agent added the following clause to the pre-printed agreement:

2) Offer is contingent upon purchasers having an inspection and radon gas test done at their expense within 10 days of acceptance of this Offer, purchaser to notify Aspen Real Estate within 3 days of receipt of inspection of acceptance in writing. If notice is not received it will be deemed acceptable.

This dispute arises primarily over the interpretation and application of this clause. Additionally, the agreement made the sale subject to Buyers’ ability to obtain financing. Buyers applied for financing shortly after executing the May 3 agreement and paid a $750 application fee to the bank.

Buyers hired Donald H. Barrick of Castle Inspection Services of Bozeman to conduct a full inspection of the house for $250. The inspection took place on May 6, 1993, and included a radon test. Mr. Barrick prepared two separate reports: the first, dated May 7 regarding the house inspection, and the second, dated May 18 regarding the radon testing. Prior to May 13, Buyers were informed by telephone that the radon test results were satisfactory. The house inspection report, however, disclosed several items which caused the Buyers concern.

On May 13, 1993, Buyers sent Sellers a letter stating that the radon test contingency was removed and that five items of concern existed regarding the house:

II) As to the home inspection there are five items that need to be addressed and negotiated:
1) Roof: A qualified roofer to inspect and repair roof as needed to pass financing and give an estimate of how long he feels the roof will last.
2) Tree in front removed and rain gutter repaired.
3) Paint siding, window trim and house trim.
4) The garage must have 3/4” gypsum board as a fire wall and a solid core swing open door.
5) The electric updated with GFCI’s installed.
If these items are repaired at sellers [’] cost these contingencies will be removed and the home accepted according to all information on the original agreement.

Buyers received no response and on Majr 18 sent a second letter to Sellers. Buyers reiterated that the house inspection caused them concern, especially because the problems could affect their ability to obtain financing. Buyers stated that “[w]e are still interested in purchasing the property at the agreed upon price if the bank appraiser finds the property satisfactory in its’ [sic] present condition.” The letter further stated:

If, however, items must be improved, repaired or replaced to satisfy the banks’ requirements for the property, then the bank will not grant a loan to us or any other potential buyer on the property in its’ [sic] present condition. If this occurs, then the purchase price will be reduced by an amount agreed upon by both seller and buyer to cover the work required by the bank. Otherwise, the work will be completed by the seller as required prior to closing.

Sellers responded by letter on May 21,1993. The letter stated that the original asking price of $135,000 had been reduced by $10,000 in the buy/sell agreement; that Sellers intended the $10,000 reduction to cover any repairs; and that Sellers would not make any repairs that may be requested by an appraiser to satisfy a loan unless the original asking price of $135,000 is restored. If Buyers were willing to pay the original asking price and postpone the date of possession to July 31, Sellers would agree to apply the additional $10,000 to the 5 items specified in the Buyers’ May 13 letter.

By letter dated May 24, Buyers rejected Sellers’ May 21 proposal and stated that they

would like to proceed according to our original agreement to sell and purchase dated May 3, 1993.
Upon written receipt of the appraisal we will let you know in writing if we can proceed with the purchase ....

Sellers did not respond to Buyers’ May 24 letter. Sometime after May 24, Sellers’ real estate agents informed Buyers that the Sellers did not intend to sell the house and property to them. On July 6, Sellers’ attorney informed Buyers’ attorney in writing that the May 3 agreement was no longer in effect.

Our standard in reviewing a grant of summary judgment is the same as that initially utilized by the district court. Cooper v. Sisters of Charity (1994), 265 Mont. 205, 206, 875 P.2d 352, 353. Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.

ISSUE 1

Did the District Court err in determining that the May 3, 1993, agreement constituted a binding real estate buy/sell agreement?

Sellers argued in District Court, and continue to argue on appeal, that the May 3 agreement is not an agreement for the sale of real estate; instead, they argue that that agreement was merely an offer to sell the property and that Buyers did not timely accept the offer. Alternatively, Sellers argue that the agreement is an option contract.

In support of their option contract argument, Sellers cite Pollard v. City of Bozeman (1987), 228 Mont. 176, 180, 741 P.2d 776, 779, which states:

An option to buy involves a contract wherein the owner agreed to give another the exclusive right to buy property at a fixed price within a specified time. The option is not a sale. It is not even an agreement for a sale. At best, it is but “a right of election in the party securing the same to exercise a privilege,” and only when that privilege has been exercised bv acceptance does it become a contract to sell. In other words, a contract of sale and purchase imposes upon the vendee an obligation to buy. An option confers a privilege or right to elect to buy, but it does not impose any obligation to buy.

(Underlining added; citations omitted.)

The District Court determined “[t]hat [the] parties entered a written contract for sale of defendant’s home in Livingston on a standard Montana ‘Agreement to Sell and Purchase’ form prepared by the sellers[’] realtor,” and that “both sides are bound thereby ....” We agree.

Section 28-2-102, MCA, sets forth the essential elements of a contract:

(1) identifiable parties capable of contracting;
(2) their consent;
(3) a lawful object; and
(4) a sufficient cause or consideration.

Sellers’ arguments that the May 3 agreement constitutes an offer or an option is unsupported by the agreement itself. The agreement contains the following statement, which appears at the very top of the document:

AGREEMENT TO SELL AND PURCHASE
(Including Earnest Money Receipt)
This contract stipulates the terms of sale of this property. Read carefully before signing (including the information of reverse side). This is a legally binding contract. If not understood, seek competent service.

(Emphasis added.) The agreement identifies the parties. There is no dispute as to the parties’ capability to enter into a contract. The parties’ consent to the agreement is evidenced by their signatures on the document. The object of the agreement — the purchase and sale of real estate — is a lawful one and is supported by sufficient consideration. Because both parties voluntarily accepted the terms, the agreement is not an option contract nor is it a mere offer. The agreement is a binding contract to buy and sell.

In Cady v. Burton (1993), 257 Mont. 529, 537, 851 P.2d 1047, 1052, we held that

[t]he primary purpose of a buy-sell agreement is a restriction of the seller’s ability to market the property for a specified time in exchange for the buyer’s payment of earnest money and promise to complete the sale.

As this Court determined in Cady, 851 P.2d at 1052, nothing in the instant record “suggests any other purpose for the buy-sell agreement[] at issue.”

We conclude that because all four of the elements set forth in § 28-2-102, MCA, were present when both parties signed the May 3 agreement, the agreement constitutes a binding contract. We affirm the District Court as to this issue.

ISSUE 2

Did the District Court err by construing the language of the inspection clause in the buy/sell agreement?

In its explanatory comment to its order ruling on summary judgment, the District Court determined the following:

Ample legal authorities for granting plaintiffs their requested relief are set forth in their briefs filed herein, and the court finds there are no genuine issues of material fact, but only a difference in the parties construction or interpretation of the contract and various letters they sent to each other ....

(Emphasis added.)

As a general rule, construction and interpretation of written agreements, including contracts, is a question of law for the court to decide. First Sec. Bank of Anaconda v. Vander Pas (1991), 250 Mont. 148, 152-53, 818 P.2d 384, 387. Likewise, it is a question of law whether ambiguity exists in a contract. Audit Services, Inc. v. Systad (1992), 252 Mont. 62, 65, 826 P.2d 549, 551. The intent of the parties to an agreement is only looked to when the agreement is not clear on its face. Bain v. Williams (1990), 245 Mont. 228, 232, 800 P.2d 693, 695; Derrenger v. City of Billings (1984), 213 Mont. 469, 475, 691 P.2d 1379, 1382.

Where the question of intent depends upon the construction of an unambiguous contract, the question is one for the court alone; however, where a contract term is ambiguous or obscure or uncertain of meaning, the interpretation of the language, and thus, the determination of the parties’ real intent, is a matter to be left to the consideration of the jury. Section 28-3-301, MCA; Gray v. City of Billings (1984), 213 Mont. 6, 10, 689 P.2d 268, 270. Pursuant to § 28-3-306, MCA,

(1) If the terms of a promise are in any respect ambiguous or uncertain, it must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it.
(2) When the terms of an agreement have been intended in a different sense by different parties to it, that sense is to prevail against either party in which he supposed the other understood it; and when different constructions of a provision are otherwise equally proper, that is to be taken which is most favorable to the party in whose favor the provision was made.
In this case, the District Court found
the inspection and radon clauses of the [buy \ sell] agreement to obviously mean that if an inspection showed repairs were needed or recommended and plaintiffs as purchasers did not wish to make them, or if the radon test was not satisfactory, purchasers could terminate the contract. Such result is determined because buyers cannot unilaterally impose on sellers new terms or conditions of making repairs or doing something about an excessive radon reading.

We do not agree with the District Court that the meaning of the inspection and radon clause is obvious. The clause reads:

2) Offer is contingent upon purchasers having an inspection and radon gas test done at their expense within 10 days of acceptance of this Offer, purchaser to notify Aspen Real Estate within 3 days of receipt of inspection of acceptance in writing. If notice is not received it will be deemed acceptable.

We conclude that the poorly drafted language of the clause is uncertain. Because the clause “is ambiguous or obscure or uncertain of meaning, the interpretation of the language and, thus, the determination of the parties’ real intent, is a matter to be left to consideration of the jury.” Gray, 689 P.2d at 270; § 28-3-301, MCA. We, therefore, reverse the summary judgment and remand this cause to the District Court for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

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

JUSTICE NELSON

dissenting.

I concur with the Court’s discussion on Issue 1 and dissent from our discussion on Issue 2.1 agree that the clause at issue is unartfully drafted. However, I also believe that the Buyers performed their obligations under a reasonable construction of the contract’s inspection contingency language.

While we have determined that the language of the inspection clause is uncertain and ambiguous, we fail to acknowledge a qualifying legal rule that derives from the fact that, here, the Sellers drafted the contract, including the offending provision, and, thus, caused the uncertainty and ambiguity of which they now seek to take advantage. That rule provides that in cases of uncertainty in the contract language, that language should be most strongly interpreted against the party who caused the uncertainty to exist. Section 28-3-206, MCA. The cases upholding that principle are numerous, but see, for example: St. Paul Fire & Marine Ins. Co. v. Cumiskey (1983), 204 Mont. 350, 665 P.2d 223, and Shanahan v. Universal Tavern Corp. (1978), 179 Mont. 36, 585 P.2d 1314. That rule is especially appropriate where, as here, the party responsible for drafting the provision at issue seeks to interpret his or her language so as to defeat the contract. 17A. Am.Jur. 2d Contracts, § 348.

Applying those principles in the instant case where there are no material facts in dispute and the issue is simply one of interpreting contract language, leads to exactly the conclusion arrived at by the District Court.

Accordingly, I would affirm.


author: JUSTICE NELSON

text:
    IN THE MATTER OF THE ESTATE OF SYLVESTER L. LAHREN, Deceased.
    No. 94-209.
    Submitted on Briefs September 8, 1994.
    Decided December 13, 1994.
    51 St.Rep. 1311.
    268 Mont. 284.
    886 P.2d 412.

      For Appellant: Joseph B. Gary and Calvin L. Braaksma, Landoe, Brown, Planalp & Braaksma, Bozeman.
    For Respondents: Dan L. Spoon, Reep, Spoon & Gordon, Missoula; Kevin S. Jones, Christian & Samson, Missoula.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from a Sixth Judicial District Court, Park County, order determining that the certificates of deposit at issue were held in joint tenancy with right of survivorship by Sylvester L. Lahren’s (S.L. Lahren’s) granddaughter, Signe Lahren (Signe). We affirm in part and reverse in part.

ISSUES

There are two issues on appeal:

I. Did the District Court err in determining that the bank certificates of deposit, which designate one depositor and one “P.O.D.” beneficiary, are joint tenancy instruments?

II. Did the District Court err in determining that the P.O.D. designations on the bank certificates of deposit act to transfer the certificates outside of the probate estate at the time of the depositor’s death as a non-testamentary transfer?

FACTUAL AND PROCEDURAL BACKGROUND

S.L. Lahren died testate on June 25, 1992. He bequeathed the residue of his estate, less items of personal property which he had specifically devised, to three of his four sons, namely Larry, Daniel and S.L. Lahren Jr. However, the bulk of S.L. Lahren’s estate consisted of four bank certificates of deposit (CDs) at American Bank, formerly known as First Security Bank.

The four CDs include: Certificate Number 32989, issued on January 15, 1985, Certificate Number 33220, issued on June 15, 1989, Certificate Number 33493, issued on March 9, 1990, and Certificate Number 34197, issued on October 8, 1991. On three of the four CDs, the depositor was listed as S.L. Lahren P.O.D. Signe Lahren. The fourth CD named as depositor, S.L. or Signe Lahren. Signe is not only S.L. Lahren’s granddaughter, but also the personal representative of S.L. Lahren’s estate.

As stated in her memorandum in support of her motion for an order determining that the CDs were joint tenancy property, Signe originally retained legal counsel from Livingston as recommended by one of her uncles. Counsel informed her that he believed that the CDs were estate property. Signe sought a second opinion on the status of the CDs and came to believe through independent review and evaluation that the CDs were actually property held in joint tenancy with right of survivorship.

On June 21,1993, with her new counsel, Signe filed her motion for an order determining whether the CDs were joint tenancy property. On June 23, 1993, the District Court filed an order requesting additional briefs on the respective positions of the parties regarding the status of the CDs at issue. Appropriate briefs were filed and on February 22, 1994, the District Court determined that the CDs were joint tenancy property. The order was certified as final and appealable on the joint tenancy question. This appeal followed.

ISSUE I - JOINT TENANCY

Appellants argue that the District Court erred in determining that the three CDs at issue were joint property with right of survivorship. (The fourth CD which named the depositor as, S.L. Labren or Signe Labren, is not at issue on this appeal.) They contend that Signe did not have a present interest in the CDs and therefore, she had no joint tenancy or joint interest in the CDs.

In a fairly recent opinion, Matter of Estate of Shaw (1993), 259 Mont. 117, 855 P.2d 105, we provided some guiding principles for determining whether property is held in joint tenancy. In Shaw, we held that the creation of a joint interest or joint tenancy in property is by Montana statute. Shaw, 855 P.2d at 111. “Sections 70-1-307 and 70-1-314, MCA, mandate that if parties want to create ajoint tenancy (same as joint interest) in property, they must make an express declaration that they intend to create ajoint tenancy or joint interest.” Shaw, 855 P.2d at 111. (Emphasis added.) Absent an express declaration of intent that the ownership interest be held in joint tenancy or joint interest, then a tenancy in common or interest in common is created. Shaw, 855 P.2d at 111.

Section 70-1-307, MCA, defines joint interest as:

Ajoint interest is one owned by several persons in equal shares by a title created by a single will or transfer, when expressly declared in the will or transfer to be a joint tenancy or when granted or devised to executors or trustees as joint tenants.

Section 70-1-314, MCA, explains how an interest in common is created:

Every interest created in favor of several persons in their own right, including husband and wife, is an interest in common unless acquired by them in partnership for partnership purposes or unless declared in its creation to be a joint interest, as provided in 70-1-307.

We are left to determine whether S.L. Lahren made an express declaration that the property was to be held in joint tenancy or joint interest, thus creating a joint tenancy or joint interest in the property. The certificates state on the front in printed form:

“You’ means the depositor(s) named above. ... If more than one of you are named above, you will own this certificate as joint tenants with right of survivorship, (and not as tenants in common.) (You may change this ownership by written instructions.) We will treat any one of you as owner for purposes of endorsement payment of principal and interest, presentation (demanding payment of amounts due), transfer and any notice to or from you. Each of you appoints the other as your agent, for the purposes described above. We will use the address on our records for mailing notices to you. You cannot transfer or assign this certificate or any rights under it without our written consent.

Signe argues that this is the express declaration required under Shaw to create a joint tenancy or joint interest. However, also included on the face of the CDs is the written designation under depositors which states “S.L. Lahren RO.D. Signe Lahren.” The P.O.D. designation is not the same as a designation that the property is held in joint tenancy or joint interest. The dissimilarity in the two designations makes the document ambiguous. In Shaw, we stated unequivocally that in the absence of an express and unambiguous declaration, no joint tenancy or joint interest is created. Therefore, in the instant case, no joint tenancy or joint interest was created because there was no express and unambiguous declaration creating a joint interest on the documents.

Moreover, “the essential characteristic of a joint tenancy is the right of survivorship. The right of survivorship — the indispensable ingredient and characteristic of the estate, and not a mere expectancy or possibility, as for example, is the inchoate right of dower — accrues as a vested right when and as soon as the joint tenancy is created....” Casagranda v. Donahue (1978), 178 Mont. 479, 483, 585 P.2d 1286, 1288. (Citation omitted.) A joint interest or joint tenancy, then, assumes a present interest in the property.

A P.O.D. designation provides that the beneficiary receives an interest in the CD only at the death of the depositor. See Official Comments to §§ 72-6-211 and 213, MCA, Annotations. The P.O.D. certificate of deposit is akin to an insurance policy — the proceeds cannot be claimed by the beneficiary until death. At any time before the depositor’s death, the depositor can change the beneficiary or withdraw the account and use the funds. However, the P.O.D. beneficiary has no such right. See Official Comments to §§ 72-6-211 and 213, MCA, Annotations. Therefore, a P.O.D. designation does not entitle the beneficiary to a present interest in the CDs and accordingly, the accounts cannot be held in joint tenancy or as a joint interest.

Finally, the face of the documents contain a pre-printed statement which provides that the CDs are owned in joint tenancy but the written designation of “S.L. Lahren P.O.D. Signe Lahren” indicates a different status of ownership. Sections 1-4-105 and 28-3-205, MCA, state that when an instrument contains partly written words and partly language in pre-printed form, the written words control the pre-printed form. In the instant case, the written words which designate a P.O.D. beneficiary would control over the pre-printed form purporting to create a joint tenancy or joint interest in the CDs.

We hold that, because there was no express and unambiguous declaration that the instrument be held in joint tenancy or joint interest, and because Signe Lahren held no present interest in the subject CDs while S.L. Lahren was alive, no joint tenancy or joint interest was created in the CDs. Signe Lahren is not entitled to the proceeds of the CDs at issue under a theory of joint interest or joint tenancy. Accordingly, we reverse the District Court on this issue.

ISSUE II — P.O.D. DESIGNATION

Appellants also argue that the P.O.D. designation on the three CDs was invalid. They assert that the statutes which authorize P.O.D. designations, §§ 72-6-201 through 211, MCA, were not effective until October 1, 1993, long after the CDs were purchased, S.L. Lahren died and the estate was probated. They farther contend that the statute was not retroactive and therefore, the P.O.D. designation is an invalid attempt at a non-testamentary transfer.

Signe counters that the non-testamentary transfer of the CDs by the RO.D. designation was valid under § 72-1-110, MCA. She states that at the time the CDs were issued and S.L. Lahren died, and the estate was probated, § 72-1-110, MCA, controlled the disposition of the CD proceeds because the CDs were “deposit agreements.”

We agree with Signe and note that although the Montana Probate Code was extensively modified and revised in 1993, § 72-1-110, MCA, remains viable and substantially unchanged in the 1993 revised code. Section 72-1-110(1) and subsection (l)(a), MCA, provide:

Instruments not invalidated by code. (1) Any of the following provisions in an insurance policy, contract of employment, bond, mortgage, promissory note, deposit agreement, pension plan, trust agreement, conveyance, or any other written instrument effective as a contract, gift, conveyance, or trust is deemed to be nontestamentary, and this code does not invalidate the instrument or any provision:
(a) that money or other benefits theretofore due to, controlled or owned by a decedent shall be paid after his death to a person designated by the decedent in either the instrument or a separate writing, including a will, executed at the same time as the instrument or subsequently....

The statute was revised by the 1993 Legislature and now reads:

Nonprobate transfers on death. (1) A provision for a nonprobate transfer on death in an insurance policy, contract of employment, bond, mortgage, promissory note, certificated or uncertificated security, account agreement, custodial agreement, deposit agreement, compensation plan, pension plan, individual retirement plan, employee benefit plan, trust, conveyance, deed of gift, marital property agreement, or other written instrument of a similar nature is nontestamentary. This subsection includes a written provision that:
(a) money or other benefits due to, controlled by, or owned by a decedent before death must be paid after the decedent’s death to a person whom the decedent designates either in the instrument or in a separate writing, including a will, executed either before or at the same time as the instrument or later. ...

Section 72-6-111, MCA, (1993).

Essentially, the statute remains the same, and at all times applicable, provided the authority to conclude that the P.O.D. designation on the face of the CDs serves to create a valid non-testamentary transfer. As stated in the Official Comments to § 72-6-111, MCA,

This section is a revised version of former Section 6-201 [72-1-110, repealed 1993] of the original Uniform Probate Code, which authorized a variety of contractual arrangements that had sometimes been treated as testamentary in prior law. For example, most courts treated as testamentary a provision in a promissory note that if the payee died before making a payment, the note should be paid to another named person; or a provision in a land contract that if the seller died before completing payment, the balance should be canceled and the property should belong to the vendee. These provisions often occurred in family arrangements. The result of holding such provisions testamentary was usually to invalidate them because not executed in accordance with the statute of wills. On the other hand, the same courts for years upheld beneficiary designations in life insurance contracts. The drafters of the original Uniform Probate Code declared in the Comment that they were unable to identify policy reasons for continuing to treat these varied arrangements as testamentary. The drafters said that the benign experience with such familiar will substitutes as the revocable inter vivos trust, the multiple-party bank account, and United States government bonds payable on death to named beneficiaries all demonstrated that the evils envisioned if the statute of wills were not rigidly enforced simply do not materialize. The Comment also observed that because these provisions often are part of a business transaction and are evidenced by a writing, the danger of fraud is largely eliminated.
Because the modes of transfer authorized by an instrument under this section are declared to be nontestamentary, the instrument does not have to be executed in compliance with the formalities for wills prescribed under Section 2-502 [72-2-522]; nor does the instrument have to be probated, nor does the personal representative have any power or duty with respect to the assets.
The sole purpose of this section is to prevent the transfers authorized here from being treated as testamentary.

Applying § 72-1-110, MCA, we conclude that the CDs at issue are “deposit agreement[s],” or “other written instrument[s] effective as a contract” and are a valid non-testamentary instrument. See, Malek v. Patten (1984), 208 Mont. 237, 244, 678 P.2d 201, 205. Moreover, “th[e] money ... controlled or owned by [the] decedent shall be paid after his death to [the] person designated by the decedent in ... the instrument ... executed at the same time as the instrument or subsequently.” Section 72-l-110(l)(a), MCA. The three CDs naming Signe Lahren as the P.O.D. beneficiary, are valid non-testamentary transfers. Accordingly the sums at issue belong to Signe Lahren as the P.O.D. beneficiary.

The appellants’ argument that §§ 72-6-201 through 211, MCA, enacted in 1993, first provided the authority for P.O.D. designations on CDs, and that there was no earlier authority for P.O.D. designations, is misplaced. First, §§ 72-6-201 through 211, MCA, address multiple person accounts. See Title 72, Chapter 6, Part 2, MCA. S.L. Lahren’s CDs were single person accounts and therefore, not governed by Title 72, Chapter 6, Part 2, MCA.

Second, § 72-1-110, MCA, governed S.L. Lahren’s single person account at the time the CDs were purchased, at the time of his death and at the time his estate was probated. Section 72-1-110, MCA, provided the authority for S.L. Lahren to designate Signe Lahren as the P.O.D. beneficiary on the face of the CDs. The statute remains valid today, although revised and renumbered at § 72-6-111, MCA (1993). Therefore, S.L. Lahren provided for a valid non-testamentary transfer when he designated Signe Lahren as the P.O.D. beneficiary. We note that if S.L. Lahren’s CDs were purchased today, § 72-1-110, MCA, revised by the 1993 Legislature and now renumbered § 72-6-111, MCA, would still apply to CDs such as those at issue in the instant case.

We hold that the P.O.D. designation on the CDs at issue acted to transfer the certificates outside of the probate estate at the time of S.L. Lahren’s death as a non-testamentary transfer, pursuant to § 72-1-110, MCA. The CDs are “deposit agreement^]” or “other written instrument [s] effective as a contract” under the statute, and as such are valid non-testamentary transfers. The District Court did not err in concluding that Signe Lahren is the valid P.O.D. beneficiary of the three CDs at issue and accordingly, we affirm the District Court on this issue.

REVERSED IN PART AND AFFIRMED IN PART.

JUSTICES HARRISON, GRAY, HUNT and WEBER concur.