text:
    MICHAEL BIRRER, Petitioner and Appellant, v. TRUSTEES, WHEATLAND COUNTY SCHOOL DISTRICT NO. 15, and Nancy Keenan, Superintendent of Public Instruction, Respondents and Respondents.
    No. 89-401.
    Submitted on Briefs Nov. 21, 1989.
    Decided Feb. 6, 1990.
    786 P.2d 1161.

      Emilie Loring, Hilley & Loring, Missoula, for petitioner and appellant.
    Chadwick Smith, Smith Law Firm, Beda J. Lovitt, Office of Public Instruction, Helena, for respondents and respondents.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

In this case, we affirm the termination of a tenured teacher by the Wheatland County School District No. 16, not on the grounds of “substantial compliance” with the applicable termination statute, but upon the grounds that there was an unrefuted necessity for a reduction in force by the School District and because the procedure used by the Board in termination did not offend the purposes of the termination procedure statute (§ 20-4-204, MCA).

Accordingly, we affirm the decision of the District Court, First Judicial District, Lewis and Clark County, which in turn affirmed the decision of the State Superintendent of Public Instruction, the Wheatland County Superintendent of Schools and the School District.

Michael Birrer was a tenured music teacher employed in the Wheatland County High School at Harlowton. On March 9, 1987, the school trustees accepted the written recommendation of Harlowton Superintendent Gary Scott that the teaching positions held by Birrer and one other teacher be eliminated because of over-staffing at the secondary level and lack of available funding. This recommendation required that the contracts of the two teachers not be renewed for the 1987-1988 school year. On March 9, 1987, the trustees accepted the recommendation of the Superintendent. On March 10, 1987, the Board, through its chairman, notified Birrer in writing that the Board had voted not to renew his contract. A hearing on Birrer’s termination was set for a special meeting of the Board on March 30, 1987. Birrer appeared at the special meeting but did not offer any evidence or testimony refuting the necessity for the reduction in force. The Board decided to let the decision of termination “stand” and on April 1,1987, the chairman wrote Birrer a letter that the Board “did reaffirm by unanimous vote their decision made at the regular March 9, 1987 meeting not to renew your teaching contract.”

Birrer appealed to the Wheatland Superintendent of Schools who affirmed the termination, as did the Superintendent of Public Instruction on further appeal. Birrer then appealed to the District Court which affirmed the termination and this appeal followed.

The acceptance by the trustees on March 9,1987, of the recommendation for a reduction in force and to terminate Birrer, a tenured teacher, before notifying the teacher of the recommendation and giving the teacher a hearing thereon, clearly violated § 20-4-204, MCA. That statute provides:

“20-4-204. Termination of tenured teacher services.
“(2) Whenever the trustees of a district receive a recommendation for termination, the trustees shall, before May 1 of the current school fiscal year, notify the teacher of the recommendation for termination and of the teacher’s right to a hearing on the recommendation.
“(4) The trustees shall:
“(b) resolve at the conclusion of the hearing to terminate the teacher or to reject the recommendation for termination.
« >>

The statute comprehends that the Board of Trustees not make a decision respecting a recommendation for the termination of a tenured teacher until after a hearing. In this case, the trustees accepted a recommendation before the hearing was granted, and reaffirmed the decision after the hearing.

The language of § 20-4-204, MCA, foregoing, is the result of an amendment to this statute in 1985 (Ch. 56, Laws of Montana (1985)). Until 1985, the trustees were empowered to act on a termination recommendation, and then notify the teacher of the termination and of the right to a hearing. The 1985 amendment was an attempt to correct what had been perceived as an unfair procedure for terminating tenured teachers. The purpose of the amendment was to prevent pre-formed opinions by the trustees against which the efforts of a teacher to overturn at a subsequent hearing would be ineffectual.

Birrer maintains in this appeal that the clear violation of the procedural statute entitles him to reinstatement and that the District Court erred in holding that “substantial compliance with the relevant statute” was sufficient for a valid termination. The trustees, on the other hand, claim that Birrer was afforded due process in this case and that technical irregularities in the procedure of termination do not affect the legality of his termination.

The trustees rely on language contained in the decision of this Court in Montana Power Co. v. Fondren (1987), 226 Mont. 500, 511, 737 P.2d 1138, 1145, that due process requires only notice and hearing “at a meaningful time and in a meaningful manner.” That language is not applicable here, however, because in the termination of a tenured teacher, the legislature has specified the procedures to be taken. Section 20-4-204, MCA, in itself defines due process for the termination of a tenured teacher.

We must also reject the argument of the school trustees that the procedure followed in the termination of Birrer was merely a “technical” irregularity, not affecting due process. The “technicality” here goes to the very heart of the 1985 amendment by the legislature. It is obviously the public policy adopted by the legislature to protect tenured teachers from unjustified terminations by requiring that school trustees keep an open mind relating to the suggested termination until both sides have an opportunity to be heard.

Notwithstanding the foregoing, however, we affirm the termination of Birrer because of the obvious rectitude of the trustee’s decision. This is not a case where the teacher was terminated for some personal reason. He was not accused in any way of incompetence, immorality, unfitness or violation of Board policy. He faced no bias or unfair attitude. He was personally liked. What Birrer faced at the March 30 special meeting was the undeniable and overwhelming state of the school finances and the requirement that two teachers be eliminated in order to meet budgetary constraints. The trustees may have had a pre-formed opinion on March 9, 1987, when they accepted the recommendation of the School Superintendent. That conclusion, however, was not singly the result of the Superintendent’s recommendation; the trustees, in the very performance of their duties as trustees, were surely aware of the financial situation, and were as much forced to a reduction in force by that knowledge as by the recommendation of the Superintendent.

We find, therefore, under the peculiar facts of this case, that the purposes of the procedural statute, § 20-4-204, MCA, to protect the tenured teacher from pre-formed opinions or ex parte presentations to the school trustees were not contravened here. Birrer was terminated not because of lack of due process, but by the inevitable force of financial events over which neither the School District nor Birrer had any real control. For those reasons, we affirm the District Court, but we do not hereby condone the failure of the trustees to follow the procedures of § 20-4-204, MCA. Costs on appeal to Birrer.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, BARZ and McDONOUGH concur.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    JOE O’BRIEN, Claimant and Respondent, v. CENTRAL FEEDS, Employer, and Guaranty Fund Services, Insurer and Appellant, and Graham Staunton, Employer, and Universal Underwriters Insurance Company, Insurer and Respondent, and Sun Ice Company, Employer, and State Compensation Insurance Fund, Insurer and Respondent.
    No. 89-426.
    Submitted on Briefs Dec. 14, 1989.
    Decided Feb. 6, 1990.
    786 P.2d 1169.

      Charles E. McNeil, Garlington, Lohn & Robinson, Missoula, for Western Guar.
    Terry G. Spear, Matovich, Addy & Keller, Billings, for State Compensation Ins. Fund.
    Patrick R. Sheehy, Halverson, Sheehy & Plath, Billings, for Joe O’Brien.
    Michael P. Heringer, Anderson, Brown Law Firm, Billings, for Universal Underwriters Ins. Co.
   JUSTICE HUNT

delivered the Opinion of the Court.

Central Feeds and Western Guaranty Fund Services, defendants and appellants, appeal from an award by the Workers’ Compensation Court that found Western Guaranty liable for temporary total disability benefits from June of 1986 and permanent partial disability benefits for 500 weeks at $81 per week. Western Guaranty was ordered to indemnify the State Compensation Insurance Fund for temporary total disability benefits paid since June of 1986. We affirm the Workers’ Compensation Court and remand for a determination of attorney fees.

The issue raised on appeal is whether substantial credible evidence supported the Workers’ Compensation Court’s findings of fact and conclusions of law.

On September 17, 1976, claimant injured his back lifting a 50-pound sack of feed while in the course and scope of employment with Central Feeds, whose carrier at that time was Montana Insurer’s Guaranty Fund, the predecessor to defendant, Western Guaranty. Claimant underwent surgery the following month for the removal of his L-5 disc. In December of the same year, claimant suffered another injury that required further surgery in January of 1977. During the surgery, a second disc protrusion at the L-4 level was removed. Western Guaranty accepted liability and paid medical benefits for the two surgeries, temporary total disability benefits from September 23, 1976, through April 20, 1977, and 50 weeks of permanent partial disability benefits. No further permanent partial disability benefits have been paid by Western Guaranty. Dr. Robert Wood, claimant’s surgeon, released claimant to work in April of 1977.

Claimant was then employed by Graham Staunton, insured by Universal Underwriters Insurance Company. He was twice injured while in the course and scope of employment with Graham Staunton — once on August 11, 1977, while getting off a “creeper,” and once on September 6, 1977, while helping to lift a camper shell onto a pickup truck. Universal Underwriters accepted liability on claims submitted and paid medical benefits to claimant’s doctor in 1977. No further medical benefits nor wage benefits were paid by Universal Underwriters as a result of these two accidents.

In the summer of 1985, claimant was employed by Sun Ice Company, insured by the State Fund. On July 4, 1985, claimant drank heavily until he passed out the next morning at 3:00 a.m. At approximately 7:00 a.m. on July 5, 1985, he reported to work and made deliveries for Sun Ice in a company truck along a 281 mile route to the final stop, Ballatine, Montana. Claimant started his return trip by taking a frontage road that ran parallel to his designated route. Approximately three miles east of Worden, Montana, claimant overturned his vehicle. He was charged and pled guilty to driving under the influence of alcohol.

Claimant filed a Workers’ Compensation claim on the July 5, 1985 accident. The State Fund, as Sun Ice’s insurer, denied all liability for the claim and no medical or wage benefits have been paid on the claim. The State Fund has, however, paid temporary total disability payments of $127.79 per week since August 17, 1988, under a reservation of rights.

Claimant filed a petition with the Workers’ Compensation Court to resolve a dispute between himself and Central Feeds/Western Guaranty, Graham Staunton/Universal Underwriters and Sun Ice/State Fund under § 39-71-295, MCA. A pretrial conference was conducted on January 12, 1989, before a Workers’ Compensation Court Hearing Examiner. The various motions of the parties were docketed in the pretrial order on February 15, 1989. A trial was conducted on February 15 and 16, 1989, before the Workers’ Compensation Court. Evidence included testimony of the claimant and four witness, nine exhibits, the deposition testimony of the claimant and his physicians, Dr. Robert Wood, a certified neurological surgeon, and Dr. William Shaw, a specialist in internal and occupational medicine.

Dr. Wood, who operated on claimant’s back in 1976, 1977 and 1988, and who examined claimant in March of 1979 and December of 1984, testified that he believed claimant was likely suffering from progressive scarring. Dr. Wood further testified that, while he released claimant to return to work in April of 1977, he did not issue an impairment rating at that time nor did he render an opinion on whether claimant had reached maximum healing. In fact, Dr. Wood testified that maximum healing would normally be reached in approximately six months after surgery. However, in this case, since claimant was prone to developing scar tissue, Dr. Wood stated that his opinion on impairment and a healing period would necessarily be delayed even longer. Dr. Wood testified, that the medical evidence of injuries sustained after claimant’s employment with Graham Staunton would merely indicate the possibility of an aggravation of the developing scar tissue in its early stages.

Dr. Wood also examined claimant August 1, 1985, less than one month after the Sun Ice accident, and testified that, while it was possible the July 5, 1985 accident aggravated his previous condition, he did not feel that the accident had a major permanent effect on claimant’s back condition and that, while claimant had pulled some lumbar muscles, there was no evident exacerbation of scar tissue signs.

At the request of Dr. Wood, Dr. Shaw examined claimant on January 3, 1989. Dr. Shaw testified that:

“[I]t is safe to say that if [claimant] had never had surgery in 1976, that it would be far less likely that he would be in the situation that he finds himself now in.”

Dr. Shaw testified that, while it is possible that a number of events could have aggravated claimant’s condition between April of 1977 and January of 1989, there was no event that he could attribute the causal relationship to claimant’s present condition with the same degree of medical certainty that he could attribute claimant’s original injury and surgeries to his present condition. He stated that claimant’s original injuries were more likely than not related to his present condition.

On July 12, 1989, the Workers’ Compensation Court entered its findings of fact and conclusions of law and judgment. In its judgment, the court’s order included that: (1) The State Fund is liable for medical benefits for costs incurred as a direct result of the July 5, 1989 accident but is not liable for wage loss benefits and is to be indemnified by Western Guaranty for the temporary total disability benefits it paid; (2) Universal Underwriters is not liable for paying claimant any Workers’ Compensation benefits; (3) Western Guaranty is liable for claimant’s Workers’ Compensation benefits to include temporary total disability benefits from June of 1986 and permanent partial disability benefits in the amount of $81 per week for 500 weeks; Western Guaranty must indemnify the State Fund for temporary total disability benefits paid since June of 1986; Western Guaranty is liable for medical costs relating to treatment of claimant’s spinal condition; and Western Guaranty is entitled to a $4,050 credit plus the amount of credit of benefits offset for social security; (4) claimant is entitled to an award of reasonable costs and attorney fees pursuant to § 39-71-611, MCA.

From the judgment, Western Guaranty appeals. The parties have reserved the determination of attorney fees.

Decisions of the Workers’ Compensation Court must be based on substantial credible evidence. Snyder v. San Francisco Feed & Grain (1987), 230 Mont. 16, 25, 748 P.2d 924, 929. This Court’s function upon review of the Workers’ Compensation Court is to determine whether evidence exists to support the court’s findings of fact and conclusions of law. Hartman v. Staley Continental (Mont. 1989), [236 Mont.141,] 768 P.2d 1380, 1384, 46 St.Rep. 248, 253. Nevertheless, this Court does not determine whether there is sufficient evidence to support contrary findings. Davis v. Jones (1985), 216 Mont. 300, 303, 701 P.2d 351, 353.

For a subsequent insurer to be liable for claimant’s injuries, claimant must have been injured during subsequent employment after having reached maximum healing from his previous injury. Belton v. Carlson Transport (1983), 202 Mont. 384, 658 P.2d 405. As stated in Belton, 658 P.2d at 408:

“ ‘[MJaximum healing’. . . has a meaning to a doctor who must give an opinion as to whether a point has been reached to constitute the end of a healing period.”

The insurer seeking to avoid payment has the burden of proving that the claimant’s present condition was caused by an accident occurring when another insurer was at risk. Little v. Structural Systems (Mont. 1980), 188 Mont. 482, 614 P.2d 516, 37 St.Rep. 1187 (overruled on other grounds in Belton, 658 P.2d at 408.).

Here, the court found that there was no conclusive evidence that claimant had reached maximum healing prior to his employment with Graham Staunton and Sun Ice. The court based its findings on the testimony of Dr. Wood and Dr. Shaw. Dr. Wood testified that, while it was possible the July 5, 1985 accident aggravated claimant’s previous condition caused by his September 17, 1976 accident, he did not feel that it had a permanent effect on the claimant’s condition. He further stated that there was no evident exacerbation of scar tissue from earlier surgeries. Also, Dr. Shaw testified that, while it was possible that a number of events could have aggravated claimant’s condition, he could not single out any one event with the same degree of medical certainty that he could attribute claimant’s original injury and surgeries to his present condition. In Wheeler v. Carlson Transport (1985), 217 Mont. 254, 261, 704 P.2d 49, 53-54, this Court stated:

“ ‘Medical possibility’ is to be weighed just as any other evidence; if supported by other, independent evidence it is ‘acceptable’ to be used by the court in making its determination. Medical possibility evidence by itself, though, does not mandate a conclusion that [Western Guaranty] has met [the] burden of proof under the Act.” (Parenthetical inserts supplied.)

See also Currey v. 10 Minute Lube (1987), 226 Mont. 445, 736 P.2d 113. Here, as in Wheeler, we cannot conclude that medical possibility is sufficient evidence, absent additional persuasive evidence, that Western Guaranty has met is burden in proving that claimant reach maximum healing prior to his subsequent employments.

Western Guaranty, however, argues that because Dr. Wood had released claimant to work in April of 1977 — subsequent to his employment with Central Feeds and prior to his employment with Graham Staunton and Sun Ice — such constituted evidence of maximum healing. While a work release may be considered when making a determination of maximum healing, it does not, in and of itself, resolve the issue of maximum healing. See Ballard v. Clark Fork Valley Hospital (Mont. 1989), [235 Mont. 447,] 767 P.2d 1327, 46 St.Rep. 128. Certainly, a claimant may be released to work prior to maximum healing of his injury. See Tenderholt v. Travel Lodge Int’l. (1985), 218 Mont. 523, 709 P.2d 1011.

In this case, Dr. Wood testified that, while he did release claimant to work in April of 1977, he did not, at that time, issue an impairment rating nor an opinion as to maximum healing. In fact, he testified that in such a case, maximum healing would not be achieved until six months after surgery and, since claimant was prone to developing scar tissue, even longer. Because of this testimony, we find Western Guaranty’s contention unpersuasive.

Affirmed and remanded for a determination of attorney fees.

JUSTICES BARZ, HARRISON, WEBER and McDONOUGH concur.


author: JUSTICE McDONOUGH

text:
    RAYMOND HARRIS, Petitioner and Appellant, v. TRUSTEES, CASCADE COUNTY SCHOOL DISTRICTS NO. 6 AND F, Respondents and Cross-Appellants, and Nancy Keenan, Superintendent of Public Instruction, Respondent.
    No. 89-430.
    Submitted on Briefs Dec. 28, 1989.
    Decided Feb. 8, 1990.
    786 P.2d 1164.

      Emilie Loring, Hilley & Loring, Missoula, for petitioner and appellant.
    Charles Erdmann, Erdmann & Wright, Beda J. Lovitt, Office of Public Instruction, Helena, for respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Appellant Raymond Harris appeals the order of the Montana First Judicial District Court, Lewis & Clark County, affirming the Cascade County Superintendent of School’s, the State Superintendent of Public Instruction’s and the Board of Trustees of Cascade County School District No. 6 & F’s (the Board) decision to dismiss Harris, a tenured teacher, due to a reduction in force. Harris (the Teacher) claims that the Board failed to follow the required statutory procedure when they terminated him. Respondent Board appeals the same order affirming the decision requiring the school district to reinstate the Teacher in the half-time teaching position that replaced his former full-time position. We affirm the decision of the District Court but on narrow grounds particular to this case.

The Teacher raises the following issue on appeal: Did the District Court err in holding that the Teacher was properly terminated under the provisions of § 20-4-204, MCA?

On cross-appeal, the Board raises the issue: Did the District Court err in affirming the County and State Superintendents’ determination that the school district must offer the Teacher the newly created half-time teaching position that replaced his former full-time position?

The Teacher was a full-time tenured physical education instructor at the Simms High School. On March 11, 1987, at its regular meeting, District Superintendent Fay Lesmeister made a written recommendation to the Board suggesting that the full-time P.E. position be eliminated for the following school year. According to the minutes of the meeting, a member of the Board moved to accept the recommendation and the motion passed unanimously. Mr. Lesmeister then administratively recommended that the Teacher not be re-hired due to the elimination of the full-time P.E. position. Again, a Board member moved to accept the administrative recommendation that the Teacher be notified of non-renewal of his contract due to the elimination of the position and the motion passed unanimously.

The Board sent a letter to the Teacher stating that they had received a recommendation for non-renewal of the Teacher’s contract and that a hearing on the recommendation would be held on March 23,1987. The hearing was held and the day after the Board sent the Teacher a termination letter stating that the Board had “voted to uphold their decision to terminate your contract.” The reason given for the termination was “the elimination of the full-time P.E, Health position due to budgetary cutbacks for the 1987-1988 school year.”

The Teacher appealed the decision to the County Superintendent. A recorded hearing was held on June 3, 1987. At the hearing the Teacher raised the issue of whether he had been terminated properly according to the procedure outlined in § 20-4-204, MCA. The County Superintendent affirmed the Board’s decision concluding that “the procedure utilized by the Respondent in changing the Petitioner’s position from full-time to part-time follows the guidelines set out by the Montana legislature in § 20-4-204, MCA.” The County Superintendent also concluded that because the Teacher had tenure, the Board must offer him the new half-time P.E position, and then ordered that the Teacher be reinstated in the halftime position at the half-time salary.

The Teacher appealed the County Superintendent’s order to the State Superintendent of Public Instruction. The State Superintendent affirmed the decision to terminate stating the same reasons set forth in a nearly identical case (see Birrer v. Trustees, Wheatland County School District No. 16, OSPI 133-87 [7 Ed. Law 145]) that technical irregularities did not affect the legality of the termination of a tenured teacher where the Board had “substantially complied” with the statute. The State Superintendent also affirmed the decision requiring the school district to offer the Teacher the half-time position.

The District Court then affirmed the decision in its entirety, concluding that the “teacher was accorded all of his rights under the statute” and that it did not have the “authority to disturb the well-reasoned administrative decisions that have been made.” The Teacher now appeals that portion of the order affirming his termination and the Board appeals the portion requiring it to reinstate the Teacher in the new half-time P.E. position.

I.

First, we note that the scope of review of administrative decisions is somewhat more limited. See § 2-4-704(2), MCA. Our function as an appellate court reviewing an administrative decision is not to substitute our judgment for that of the County Superintendent but rather to review the whole record to determine if the administrative findings are clearly erroneous or if the County Superintendent’s conclusions of law constitute an abuse of discretion. Section 2-4-704(2), MCA, Booth v. Argenbright (1987), 225 Mont. 272, 278, 731 P.2d 1318, 1320, [6 Ed. Law 62,]; Yanzick v. School District #23 (1982), 196 Mont. 375, 388-389, 641 P.2d 431, 439 [1 Ed. Law 1].

II.

The acceptance by the Board of the recommendation for a reduction in force and the recommendation to terminate the tenured Teacher before notifying the Teacher of the recommendation and affording the opportunity of a pre-termination hearing violated the statutory procedure for terminating tenured teachers. That procedure is set forth in § 20-4-204, MCA, which provides in pertinent part:

“20-4-204. Termination of tenured teacher services.
“(2) Whenever the trustees of a district receive a recommendation for termination, the trustees shall, before April 1 of the current school fiscal year, notify the teacher of the recommendation for termination and of the teacher’s right to a hearing on the recommendation.
“(4) The trustees shall:
“(b) Resolve at the conclusion of the hearing to terminate the teacher or reject the recommendation for termination.” (Emphasis added.)

Section 20-4-204, MCA. The above language is the result of a 1985 amendment. Under the statute’s former language the Board could act on a termination recommendation prior to notifying the teacher of the termination and of the right to a hearing. If requested, the hearing was for the Board to “reconsider” their termination action. See § 20-4-204, MCA (1983).

The 1985 amendment attempts to correct a perceived unfairness in the statute’s procedure for terminating tenured teachers. The amendment sought to prevent the situation arising under the former statute where the Board of Trustees would vote to terminate a tenured teacher immediately after an ex parte recommendation from the superintendent. In that situation the Board could already have formed an opinion regarding the grounds for the termination, and therefore the efforts of a teacher to refute such grounds and overturn a decision to terminate at a subsequent hearing would be ineffectual if not futile. See Birrer v. Trustees, Wheatland County School District No. 16. (Mont. 1990), [241 Mont. 262,] 786 P.2d 1161, 47 St.Rep. 247. The current statute now requires that the Board not make a decision respecting a recommendation for termination until after the tenured teacher is afforded a hearing. See § 20-4-204 (4) (b), MCA.

Therefore, we must disagree with the District Court’s conclusion that the Teacher was “accorded all of his rights under the statute.” The statutory procedure was not followed.

We also reject the Board’s argument that it did not accept the substance of the recommendation but merely acknowledged receipt of it. The County Superintendent found that the District Superintendent made a recommendation to eliminate the full-time P.E. position, that this recommendation was accepted, and that the Board eliminated the position and created a new half-time position. The findings then indicate that the District Superintendent recommended that the Teacher not be rehired because the position no longer existed. While no finding was made that the Board specifically voted to terminate this particular teacher, the minutes of the Board meeting indicate that after the District Superintendent recommended that the Teacher not be rehired the Board then unanimously voted to “accept the administrative recommendation that Mr. Ray Harris be notified of non-renewal of his contract due to the elimination of the full-time P.E. position.” That this decision was made prior to the necessary hearing is also evident from the post-hearing notice of the Board’s decision which stated that the Board “voted to uphold . . . [its] decision to terminate . . .”

We further reject any argument that the procedure followed in the termination was merely a “technical” irregularity or that the Board “substantially complied” with the termination statute. The very purpose of the 1985 amendment was to enact a technical requirement guaranteeing tenured teachers a pre-termination hearing prior to any decision by the Board. The legislature sought to protect tenured teachers from unjustified terminations by requiring that school trustees keep an open mind relating to the suggested termination until both sides have an opportunity to be heard. See Birrer, supra.

Notwithstanding the above, we affirm the termination because under these facts the errors committed here did not cause the teacher substantial prejudice. The present case is an appeal from a lower appellate tribunal which in turn based its conclusions on a review of the printed record. The procedure in appealing to this Court is identical to that used in any other district court decision. Booth, 731 P.2d at 1321; Yanzick, 641 P.2d at 439. The distinction is that here, the County Superintendent, not the District Court, was the trier of fact:

“(2) The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact .... The court may reverse or modify the decision [of an agency] if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
“(a) in violation of constitutional or statutory provisions;
“(b) in excess of the statutory authority of the agency;
“(c) made upon unlawful procedure;
“(d) affected by other error of law;
“(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;
“(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
“(g) because findings of fact, upon issues essential to the decision, were not made although requested.” (Emphasis added.)

Section 2-4-704(2), MCA. Here, the Teacher was not accused of poor performance, incompetence, immorality, unfitness or violation of Board policy. He was not terminated for any personal reason. Nor did the teacher allege that the reduction in force was an attempt to masquerade any of the foregoing reasons. He admittedly was terminated solely due to the District’s poor financial condition, a condition of which the Board was surely aware. If the Board had any preformed opinion when they voted on the recommendation to terminate, it was not singly the result of the ex parte recommendation of the District Superintendent. Rather, it resulted as much or more from their own knowledge of the financial situation in the District. While several grounds for reversal under § 2-4-704, MCA, could be alleged in this case, the crucial determination for reversal is whether “substantial rights of the appellant have been prejudiced.” Under the particular facts of this case, no substantial prejudice occurred and the purposes of the procedural statute, § 20-4-204, MCA, to protect tenured teachers from pre-formed opinions and ex parte representations, were not contravened. Birrer, supra. The District Court did not abuse its discretion in affirming the lower tribunals’ decision because under these facts no prejudice occurred.

III.

On cross appeal the Board maintains that the County Superintendent, and in turn the State Superintendent and the District Court, erred in holding that the District must offer the former full-time teacher the newly created half time position.

We disagree. First, we note once again that administrative decisions may be judicially reversed “if substantial rights of the appellant have been prejudiced.” Section 2-4-704(2), MCA. Here, the Teacher was terminated solely for financial reasons, not because the Board had any criticism of his performance. Indeed, if his performance had been at issue the termination would have been unlawful. The School District cannot claim that it was prejudiced by the decision requiring it to employ an admittedly qualified former full-time tenured teacher in the half-time position.

We also endorse the District Court’s conclusion that this Court’s decision in Massey v. Argenbright (1984), 211 Mont. 331, 337, 683 P.2d 1332, 1335, [3 Ed. Law 142,] is controlling and requires that the teacher be offered the part-time position. In Massey, we held that the language of the tenure statute, § 20-4-203, MCA, — which guarantees teachers employment “at the same salary” and in a “comparable position of employment” — cannot be given a broad meaning when a school district wishes to reassign a tenured teacher to another position and at the same time be construed narrowly when a district chooses to terminate a tenured teacher. Section 20-4-203, MCA; Massey, 683 P.2d at 1335. The Board correctly points out that § 20-4-203, MCA, guarantees this protection unless the teacher is terminated under § 20-4-204, MCA. Once terminated, the teacher no longer retains tenure rights. See § 20-4-203, MCA. The Board then argues that it performed two distinct administrative acts: (1) elimination of the full-time P.E. position and, consequently, termination of the Teacher holding it, and (2) creation of a new half-time P.E. position.

We reject this distinction as artificial. As the State Superintendent noted, the position held by the teacher was actually reduced from full-time to half-time; to interpret the Board’s action as eliminating an old position and creating a new position involves a hypertechnical distinction that could seriously threaten the value of tenure. For us to hold otherwise would permit school boards to circumvent tenured rights by asserting, as this Board does, that a teacher is terminated in his or her full-time position but that the remaining halftime job, with identical duties other than hours of service, is an entirely new position for which a tenured teacher would be entitled to no consideration.

The P.E. position resulting from the reduction is clearly comparable to the original full-time position. The District Court did not err in affirming the administrative decision requiring the Board to offer the teacher the position. Moreover, notwithstanding the Board’s failure to follow the proper termination procedures set forth in § 20-4-204, MCA, no prejudice resulted in this case that would warrant reversal of an administrative decision under § 2-4-704(2), MCA.

AFFIRMED.

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


author: JUSTICE HUNT JUSTICE WEBER,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ERIC HARRIS CATES, Defendant and Appellant.
    No. 88-547.
    Submitted Nov. 7, 1989.
    Decided Feb. 9, 1990.
    As Corrected March 7, 1990.
    787 P.2d 319.
    Ira Eakin argued, Billings, for defendant and appellant.
    Marc Racicot, Atty. Gen., Paul D. Johnson argued, Mark Murphy, argued, Asst. Atty. Gens., Helena, Floyd A. Brower, Golden Valley County Atty., Gerry Higgins, Sp. Deputy County Atty., Ryegate, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

A jury empaneled in the District Court of the Fourteenth Judicial District, Musselshell County, found Eric Harris Cates, guilty on one count of sexual intercourse without consent with Janey Doe in violation of § 45-5-503, MCA, and guilty on a separate count of sexual assault upon Robby Roe in violation of § 45-5-502, MCA. The District Court sentenced defendant to fourteen years for sexual intercourse without consent and fourteen years for sexual assault to be served concurrently. The court suspended seven years of each sentence subject to certain conditions and defendant was given credit for time served. Defendant was designated a non-dangerous offender for the purpose of parole release. Defendant appeals his conviction for sexual intercourse without consent. Defendant did not appeal his conviction for the sexual assault on Robby Roe. We vacate and reverse defendant’s conviction for sexual intercourse without consent with Janey Doe on the grounds of insufficiency of evidence.

The issue to be discussed on appeal is whether sufficient evidence pertaining to the elements of § 45-5-503, MCA, supported the jury’s guilty verdict of the offense of sexual intercourse without consent.

From September to November of 1987, defendant and his wife, Kathleen Harris, were employed as babysitters for a three-year-old girl, referred to as “Janey Doe,” and a five-year-old boy, referred to a “Robby Roe.” While Kathleen actually took care of the children, defendant had access to them during his lunch hour.

On November 18, 1987, Janey said to her mother, “my vagina hurts.” Janey’s mother examined her and discovered that Janey had a thick glob of mucous in the vaginal area, that her vagina was streaked with blood resembling blood blisters on both sides, and that she had a raw looking bruise in her vagina. The following day, Janey’s mother took her to be examined by a pediatrician. The pediatrician diagnosed Janey’s injuries as consistent with evidence of sexual molestation.

On February 26, 1988, defendant was charged by information on Count I with sexual intercourse without consent in violation of § 45-5-503, MCA, or, in the alternative, with sexual assault in violation of § 45-5-202, MCA, against Janey, and on Count II with sexual assault in violation of § 45-5-502, MCA, against Robby. Defendant’s wife was similarly charged and separate trials were ordered.

On June 27, 1988, defendant filed a motion in limine requesting the District Court to exclude out-of-court statements made by the children to any witness. On July 1, 1988, a hearing was conducted concerning the motions. During the hearing, the District Court concluded that Janey was not competent to be a witness at trial after she declined to speak to the District Court judge both in open court and in chambers. The court found that she was “mute out of fear.” Robby was found to be a competent witness.

A jury trial commenced on July 8, 1988. Several witnesses testified including Janey’s mother, Janey’s pediatrician and Robby. Janey’s mother testified that Janey said her “vagina hurts” and that Janey had been consistently complaining about soreness for six to eight weeks. She also testified that she examined Janey and then took her to the pediatrician. Janey’s pediatrician testified that Janey’s vagina looked fine externally but internally there were injuries such as bruises and abrasions. She stated that from the medical evidence:

“[Janey] has had some blunt, penetrating type trauma directly to that [inner] area. It means that there has not been any fall or hit or anything accidentally that was done to her. This area had to be opened up and had to have been injured by opening her up.”

The pediatrician testified that, in her opinion, the injuries had been caused within a week of Janey’s examination and that she diagnosed Janey’s injuries as consistent with evidence of sexual molestation.

Robby testified that during lunch-time, Eric “played the touch game” touching Robby’s penis and putting “his hand ... up my butt.” He further testified that he saw Eric touch Janey’s vagina “[a] lot of times.”

After conclusion of the evidence, the court instructed the jury that, should it find defendant guilty of either sexual intercourse without consent or sexual assault, he must be found not guilty of the other. On July 12,1988, the jury returned a verdict of guilty on Count I for sexual intercourse without consent in violation of § 45-5-503, MCA, and not guilty of sexual assault under § 45-5-502, MCA, for his offense against Janey. Defendant was found guilty on Count II for sexual assault in violation of § 45-5-502, MCA, for his offense against Robby.

The court sentenced defendant to fourteen years in the Montana State Prison on each count to run concurrently. Seven years of each sentence was suspended subject to certain conditions. Defendant was given credit for time served and designated a non-dangerous offender for the purpose of parole release. Defendant appeals his conviction on Count I for sexual intercourse without consent under § 45-5-503, MCA.

The first issue raised on appeal is whether there is sufficient evidence of the elements of § 45-5-503, MCA, to support the jury’s guilty verdict of the offense of sexual intercourse without consent.

Defendant was convicted of sexual intercourse without consent under § 45-5-503, MCA, which provides in part:

“A person who knowingly has sexual intercourse without consent with a person of the opposite sex commits the offense of sexual intercourse without consent.”

Sexual intercourse is defined under § 45-2-101(61), MCA, as:

“[The] penetration of the vulva, anus, or mouth of one person by the penis of another person, penetration of the vulva or anus of one person by any body member of another person, or penetration of the vulva or anus of one person by any foreign instrument or object manipulated by another person for the purpose of arousing or gratifying the sexual desire of either party. Any penetration, however slight, is sufficient.” (Emphasis added.)

Defendant argues that while there is medical evidence that Janey was penetrated, there is not sufficient credible evidence, that it was he who committed the act of penetration. Establishing penetration is an essential element to proving sexual intercourse without consent.

The standard of review in such a case is:

“[Wjhether the evidence, viewed in the light most favorable to the prosecution, is sufficient to permit any rational trier of fact to find that the elements of the offense were established beyond a reasonable doubt.”

State v. Lundblade (1986), 221 Mont. 185, 187, 717 P.2d 575, 577. Here, the evidence is not sufficient to establish that it was defendant who committed the act of penetration. While Robby did testify that he saw defendant touch Janey’s vagina “[a] lot of times” he never testified to what he meant by the statement and this Court cannot infer that he was describing an act of penetration.

The jury specifically found defendant not guilty of the charge of sexual assault with Janey. Therefore, defendant cannot be retried on that charge. Defendant did not appeal his conviction for the sexual assault upon Robby Roe.

Because of our holding on the first issue, we need not discuss the second issue of whether the District Court erred in admitting hearsay statments made by a three-year-old child to her psychotherapist where the child was found incompetent to testify.

We vacate and reverse defendant’s conviction for sexual intercourse without consent with Janey Doe on the grounds of insufficiency of evidence.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and SHEEHY and HON. HENRY LOBLE, District Judge, retired, sitting of JUSTICE BARZ, and HON. JEFFREY SHERLOCK, District Judge, sitting for JUSTICE McDONOUGH concur.

JUSTICE WEBER,

dissenting:

Our basic issue is whether there is substantial evidence to support the conviction. The test has been stated as follows:

“A conviction cannot be overturned when the evidence, viewed in the light most favorable to the prosecution would allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed. 560, 573; State v. Godsey (1982), 202 Mont. 100, 656 P.2d 811, 39 St.Rep. 2354, 2358. If the record shows any substantial evidence to support the judgment, the presumption is in favor of such judgment. State v. Shurtliff (1981), 195 Mont. 213, 635 P.2d 1294, 1296, 38 St.Rep. 1798, 1800.”

State v. George (1983), 203 Mont. 124, 130, 660 P.2d 97, 100. In addressing this issue, the majority has improperly focused on the lack of direct proof demonstrating that defendant was the one who penetrated the child’s vagina. I dissent to point out that direct proof of penetration by the defendant was not necessary to conviction. Further, circumstantial evidence pointing to defendant’s penetration was established.

The majority opinion cites Lundblade as authority that the evidence in the present case is insufficient to convict. However, Lundblade is distinguishable and is not good authority in the present case. In Lundblade there was no evidence of penetration, an element of the offense. In the present case, penetration was definitely established. The pediatrician testified that Janey’s vagina had recently been opened up, causing injuries consistent with sexual molestation. The only issue was the identity of the perpetrator.

The present case is more closely analogous to State v. Pendergrass (1978), 179 Mont. 106, 586 P.2d 691, on remand, 189 Mont. 127, 615 P.2d 201 (1980). In Pendergrass II, defendant made a similar challenge to the sufficiency of the evidence to prove sexual intercourse without consent. Noting that “there is no question that a rape occurred,” the majority in Pendergrass then detailed the evidence which tended to prove Pendergrass committed the crime. This Court found sufficient evidence to convict in the testimony that defendant’s red pickup was parked near the convenience store where the offense occurred, a witness saw a man closely resembling defendant in the store; the defendant’s blood type matched that of the perpetrator.

As in Pendergrass, here there is no question that a rape (sexual intercourse without consent) had occurred. The only question is the identity of the perpetrator. The evidence established that defendant was with Janey during his lunch hour on many occasions. Robby testified that he saw defendant touch Janey’s vagina a lot of times. Robby also testified that defendant played the touch game and put his hand up his [Robby’s] butt. I conclude that the evidence here more closely identifies the defendant as being the perpetrator because of his action which at least constituted sexual assault. In contrast, the evidence in Pendergrass did not establish any such close connection. Nonetheless in Pendergrass this Court stated:

“. . . This Court remains ever mindful of one fundamental rule — that questions of fact must be determined solely by the jury, and that given a certain legal minimum of evidence, this Court on review will not substitute its judgment for that of the jury . . .” Pendergrass, 615 P.2d at 205.

My conclusion is further strengthened by Montana’s statutory definition of “sexual intercourse.” As noted in the majority opinion, a penetration of the vulva by any body member falls within the definition of sexual intercourse. The statute further states that “[a]ny penetration, however slight, is sufficient.” (Emphasis added.) In view of this broad definition, Robby’s testimony as to defendant’s touching Janey’s vagina is actually strong evidence that he penetrated her.

I would affirm the conviction.


author:
CHIEF JUSTICE TURNAGE
      JUSTICE McDONOUGH,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BETTY ANN CURTIS, Defendant and Appellant.
    No. 89-422.
    Submitted on Briefs Dec. 1, 1989.
    Decided Feb. 9, 1990.
    787 P.2d 306.

      James A. Haynes, Hamilton, for defendant and appellant.
    Marc Racicot, Atty. Gen., Elizabeth S. Baker, Asst. Atty. Gen., and John W. Robinson, County Atty., Hamilton, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

A jury in the Fourth Judicial District, Ravalli County, found Betty Ann Curtis guilty of felony theft from a checking account and of a certificate of deposit belonging to an elderly patient under her care. She now appeals on grounds of excessive pre-indictment delay, lack of speedy trial, and refusal of a directed verdict. We affirm.

ISSUES

1. Did a 422-day delay between completion of the crime and the filing of the criminal complaint violate the defendant’s right to due process?

2. Did a 291-day delay between the filing of the criminal complaint and the beginning of trial violate the defendant’s right to a speedy trial?

3. Was the evidence following the State’s case-in-chief sufficient to refuse the defendant’s motion for a directed verdict on Count IV, theft of a certificate of deposit?

FACTS

Octogenarian Dorothy Bullock lived alone in his life-long home of Hamilton, Montana. His niece, Carol Curry, lived in Whitefish, Montana. She did not maintain a close relationship with her uncle, but held a power of attorney enabling her to supervise his financial affairs.

In November of 1985 Bullock hired a licensed practical nurse, Betty Curtis, to help with his daily affairs. Bullock paid Curtis between $800 and $1000 per month to cook, clean, wash clothes, buy groceries, and run errands. Two months after hiring Curtis, Bullock had his attorney draw up a will appointing Curtis his personal representative, and, among other dispositions, leaving Curtis his home in Hamilton. In April of 1986, he provided Curtis with a power of attorney giving her access to his safety deposit box and bank accounts.

In the spring of 1987, Carol Curry became suspicious when she noticed a dramatic change in Bullock’s banking activities. On April 20, 1987, she asked the Ravalli County sheriff’s office to investigate, and they confirmed Curry’s suspicions. In March 1986, Bullock’s check-writing increased from an average of five to seven checks per month to twenty to thirty checks per month. Many of those checks went to Curtis and her sons. Between March of 1986 and April of 1987, Curtis received 161 checks totaling $34,540, an average of $2,467 per month. Curtis’s son Todd received $2,760 and her son Barry received $1,500 from Bullock’s checking account.

Investigating officers also discovered the loss of a $20,000 certificate of deposit held jointly by Bullock and his brother Clarence. On the morning of March 17, 1987, Bullock and Curtis took the certificate from Bullock’s safety deposit box, cashed it, and purchased a new certificate held jointly by Bullock and Curtis. One week later the certificate was cashed for $19,931.46. Of the proceeds, $6,700 was deposited in the account of Curtis’s son Kyp and used to satisfy a judgment to repossess the appellant’s car. Seven thousand dollars was deposited in Curtis’s bank account and the remaining $6,231.46 was taken in cash. The next week, $6,231.46 was deposited in a joint checking account in the names of Betty and Kyp Curtis.

On June 2, 1988, a complaint was filed against the appellant charging four counts of felony theft. The trial commenced on March 20, 1989. The District Court ruled that Bullock was not competent to testify on substantive issues. The jury found Curtis guilty on two counts; one of theft from Bullock’s checking account and another of the theft of the certificate of deposit. Curtis now appeals her conviction.

DISCUSSION

In her accusations of pre-indictment delay and lack of speedy trial, the appellant presents a difficult and close question. The length of delays from investigation to accusation and from accusation to trial approach the tolerable constitutional limits. The exclusion of the victim as a potentially exculpatory witness raises the possibility of great prejudice against the defense. Because of these concerns, we set out our analysis in commensurate detail.

We begin by noting that the appellant has lumped together arguments on lack of a speedy trial and arguments on excessive preindictment delay. The United States Supreme Court utilizes different standards for each of these issues. Speedy trial is guaranteed by the Sixth Amendment of the United States Constitution and is analyzed according to the standards set out in Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117. Freedom from excessive pre-indictment delay is guaranteed by the statutes of limitations and the Fifth and Sixth Amendments. It is analyzed according to the standards set out in United States v. Marion (1971), 404 U.S. 307, 323-24, 92 S.Ct. 455, 465, 30 L.Ed.2d 468, 480-81. These rights act in a complimentary fashion to protect the criminal defendant from unreasonable delay from the time when investigation begins to the time when trial commences. The statute of limitations and due process cover from the time when the investigation begins to the point at which the defendant is accused, whereas the speedy trial guarantee covers from the accusation to the time when trial begins. United States v. Lovasco (1977), 431 U.S. 783, 788-89, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752, 758. This Court utilizes the same analysis. State v. Bartnes (Mont. 1988), [234 Mont. 522,] 764 P.2d 1271, 1273-74, 45 St.Rep. 2101, 2103; State v. Goltz (1982), 197 Mont. 361, 365-66, 642 P.2d 1079, 1081-82; State v. Burchett (1974), 165 Mont. 280, 283, 530 P.2d 471, 473, cert. den. 420 U.S. 974, 95 S.Ct. 1397, 43 L.Ed.2d 654 (1975).

PRE-INDICTMENT DELAY

Under the due process analysis, the defendant has the burden of proving whether the State intentionally delayed charging the defendant to gain a tactical advantage and whether any delay caused actual prejudice to the conduct of the defense. Marion, 404 U.S. at 324, 92 S.Ct. at 465, 30 L.Ed,2d at 481; Bartnes, 764 P.2d at 1274, 45 St.Rep. at 2013. We need not decide in this case whether the appellant must prove both intentional delay and actual prejudice since she does not claim the former and fails to sufficiently prove the latter. See Goltz, 197 Mont. at 367, 642 P.2d at 1082.

Prejudice to the Defense

The appellant argues that the 422-day delay between the final date of the commission of the offenses, April 30, 1987, and the date the complaint was filed, June 2, 1988, violated her due process rights. She asserts that the delay prejudiced her defense because during that time Bullock’s mental condition deteriorated leaving him unable to exonerate the defendant. According to the appellant, if the trial had been held earlier, Bullock’s memory would have been intact and he would have testified that he freely gifted the money in question to Curtis and her children. The appellant points to testimony given by various witnesses indicating that Bullock was sharp, alert, and competent in January, April, May, and September of 1987. By the time trial began on March 23, 1989, however, Bullock’s memory of the events had deteriorated to the point where the trial court adjudged him incompetent to testify.

Prejudice to the defense is the primary consideration in pre-indictment delay. “[T]he inability of a defendant adequately to prepare his case skews the fairness of the entire system.” Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. In particular, the loss of a witness’s ability to recall disputed events can seriously impair the defense. See Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118; State v. Larson (1981), 191 Mont. 257, 264, 623 P.2d 954, 959. In this case, however, the record contains considerable evidence which discredits the appellant’s claim of prejudice due to Bullock’s loss of memory.

First, during the trial, the defense presented much of the evidence to which Curtis alleges Bullock would have testified. As noted by the appellant, a number of witnesses testified on Bullock’s ability to handle his financial affairs during the time of the disputed transactions. The defense also presented testimony given by Bullock during a competency hearing in June of 1987. In that testimony, Bullock stated that he was aware of his financial condition and that Curtis wrote the checks and signed the certificate of deposit with his approval. The defense introduced an affidavit signed by Bullock on May 14, 1987, to the same effect.

“That in consideration of [Betty Ann Curtis’s] having cared for me and assisted me in all of my personal affairs for several years, I have given her money and other items which are intended to be wages and gifts for the many kindnesses shown me.”

We recognize that second-hand evidence cannot have the same impact on a jury as a statement of exoneration by the purported victim of the crime. The defense, however, was not precluded from presenting the essential facts supporting its theory.

Second, even if the trial had been held at an earlier date, the appellant has not shown that the court would have allowed Bullock to testify. Following the June 1987 competency hearing, the court held that Bullock was not competent to manage his financial and personal affairs and appointed Curry as his permanent guardian. While the standard of competency to manage one’s affairs, §§ 72-5-316(1), -409(2)(b), MCA, is not identical to the standard of competency to testify, State v. Coleman (1978), 177 Mont. 1, 27, 579 P.2d 732, 748, cert. den. 448 U.S. 914, 101 S.Ct. 34, 65 L.Ed.2d 1177 (1980), the evidence indicates that Bullock may not have been competent to testify as early as June 1987 when the investigation began.

Third, the appellant has not shown that even if allowed to testify, Bullock would have testified for the defense. The record indicates that Bullock changed his allegiance several times. Before hiring Curtis, Bullock trusted his niece with a power of attorney and supervision of his bank accounts. After Curtis became a constant presence in his life, Bullock began to favor her over Curry. In January of 1986, he signed a will devising his house to Curtis and appointing Curtis as personal representative. In April of 1986, he gave Curtis a power of attorney over his checking account. When Curry discovered the depletion of Bullock’s account in the spring of 1987, she began court proceedings to gain full guardianship over Bullock. On learning of the guardianship proceedings in May, Bullock turned fully against his niece. He gave Curtis a general power of attorney, revoked Curry’s power of attorney, rewrote his will to delete a previous devise to Curry, and wrote the above-mentioned affidavit stating that the transactions were gifts. In July of 1987, Curtis lost her position caring for Bullock and her influence over him ended. By September he had revised his opinion of her. Bullock wrote a new will deleting his devise to Curtis, replacing her with Curry as his personal representative, and reinstating his former devise to Curry.

From this scenario, it is apparent that Bullock remained loyal to Curtis only during the period in which she exerted constant influence over his life. Even if the trial had been held, and Bullock allowed to testify, as early as September of 1987, Bullock might just as well have been the State’s star witness testifying about the influence Curtis exerted over him.

The appellant’s concern about the loss of Bullock’s testimony is undermined by her failure to depose Bullock until thirty days prior to trial. See State v. Shurtliff (1980), 187 Mont. 235, 241, 609 P.2d 303, 306. If Bullock’s memory was deteriorating, and if his testimony was essential to the defense, the appellant could have preserved Bullock’s exculpatory testimony by taking his deposition at any time after charges were filed in July of 1988. Indeed, the exclusion of Bullock may have given the appellant the best defense possible. She presented evidence of Bullock’s early exculpatory statements without running the risk of adverse testimony after Bullock changed his opinion of Curtis.

Fourth, the issue of prejudice is a question of fact which the District Court decided on two different occasions. Six weeks before trial, the District Court denied the appellant’s motion to dismiss for lack of a speedy trial. The court considered Bullock’s mental condition and found no prejudice to the appellant’s defense caused by delay in commencing trial. As the appellant notes, the District Court apparently accepted the State’s contention that Bullock’s mental condition had not deteriorated but had actually improved between the beginning of the investigation and the approaching trial date. Ten days before trial, the court rejected the appellant’s renewed motion to dismiss. The court again considered Bullock’s mental condition and found no change from the summer of 1988. Although Curtis has not specifically appealed the District Court’s rulings on the motions to dismiss, we give substantial weight to the District Court’s determinations of a witness’s competency. Coleman, 177 Mont. at 27, 579 P.2d at 748.

Finally, the appellant is required to show that the purported prejudice is more than mere speculation. Goltz, 197 Mont. at 367, 642 P.2d at 1082. Here, the foregoing indicates that the appellant’s argument is not based on what Bullock would have said at trial; it is based on what the appellant desired Bullock to say at trial. We conclude that the appellant has failed in her burden of proving sufficient prejudice to the defense.

Investigative Delay

Even if some prejudice had been proven in this case, that prejudice must outweigh the necessity of allowing a reasonable time to investigate the crime. Goltz, 197 Mont. at 368-69, 642 P.2d at 1083. In United States v. Lovasco, the United States Supreme Court recognized that reasonable investigative delay protects the interests of both the State and the defendant. From the potential defendant’s perspective, premature indictment would,

“increase the likelihood of unwarranted charges being filed, and would add to the time during which the defendants stand accused but untried. These costs are by no means insubstantial since ... a formal accusation may interfere with the defendant’s liberty, disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.”

Lovasco, 431 U.S. at 791, 97 S.Ct. at 2049, 52 L.Ed.2d at 760. (Citations, quotations and footnote deleted.) From the State’s perspective, premature indictment could impair investigations by causing sources of information to dry up and by alerting other potential defendants of the possibility of indictment. The threat of dismissal for failure to prosecute would pressure the State into early and potentially ill-considered and unwarranted prosecutions thereby increasing the burden on the judicial system. Lovasco, 431 U.S. at 791-94, 97 S.Ct. at 2049-51, 52 L.Ed.2d at 760-62.

The record in the present case contains no evidence concerning the prosecution’s reasons for the long delay in indictment. We have before us only the State’s unsubstantiated assurance that, “The investigation covered a period of more than one year and required delving into numerous bank records involving accounts belonging to four different individuals.” Against this, the appellant offers nothing to show that the delay was not reasonable and necessary in relation to the complexity of the investigation.

In Lovasco, the United States Supreme Court faced a similar situation. In holding for the government, the Court explicitly relied on reasons for the prosecution’s delay given in the government’s briefs and oral arguments. Lovasco, 431 U.S. at 796, 97 S.Ct. at 2052, 52 L.Ed.2d at 763. Like the Supreme Court, Ciucci v. Illinois (1958), 356 U.S. 571, 573, 78 S.Ct. 839, 840, 2 L.Ed.2d 983, 985, we generally will not accept unsubstantiated evidence presented only in the parties’ briefs, State v. Tiedemann (1978), 178 Mont. 394, 397, 584 P.2d 1284, 1287. Reasons for investigative delay, however, are not normally trial issues and may not produce an evidentiary record. Furthermore, in this case, the appellant has offered no evidence to counter the State’s contention. Therefore, in this case, we follow the Supreme Court in assuming that the prosecution’s statements were rendered in good faith.

We hold that the complexity of the evidence warranted the length of the investigative period. The requirements of a conscientious investigation outweighed the prejudice, if any, which may have occurred. The pre-indictment delay did not violate the appellant’s right to due process.

SPEEDY TRIAL

At the start, we set out the basic parameters of the speedy trial analysis under the Sixth Amendment. The inquiry centers on four factors: (1) the length of the delay, (2) the reason for the delay, (3) the assertion of the right by the defendant, and (4) the prejudice to the defense. Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; Briceno v. District Court (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-64.

Length of the Delay

The first element is of primary importance in triggering the remainder of the analysis. The court need not go beyond the first element unless the delay is presumptively prejudicial. Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; State v. Wiman (1989), [236 Mont. 180,] 769 P.2d 1200, 1202, 46 St.Rep. 279, 283. If the court finds the delay to be presumptively prejudicial, the State has the burden of rebutting the presumption by providing a reasonable explanation for the delay and showing that the defendant was not prejudiced. State v. Wombolt (Mont. 1988), 231 Mont. 400-403, 753 P.2d 330, 331, 45 St.Rep. 714, 716.

Here the complaint was filed on June 2, 1988, and trial commenced on March 20, 1989, creating a delay of 291 days. The parties’ briefs exhibit some confusion concerning at what point delay attributable to the defendant should be considered. Some confusion is not surprising considering the recent case law. Some cases deducted time attributable to the defendant before determining whether the delay was long enough to establish a presumption of prejudice. Other cases did not consider such delay until after the presumption of prejudice had been established and dealt with it under the second analytical element, the reasons for the delay.

We believe that the second procedure is more appropriate. The length of delay is considered twice in speedy trial analysis. In the first instance, it acts merely as a trigger to determine whether further inquiry is warranted. If further inquiry is warranted, the length of the delay is again considered as an inextricable component of the second element, the reasons for the delay. See Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed.2d at 117; United States v. Colombo (1st Cir. 1988), 852 F.2d 19, 24.

The primary purpose of the length of delay as a trigger is to provide the courts and the parties with a rudimentary warning of when speedy trial problems may arise. When a defendant alleges a speedy trial violation, the length of the delay acts as a rough measure of whether further inquiry is warranted. Incorporating into that element arguments over how much delay the State caused and how much the defendant caused would complicate the measure and thereby dilute its usefulness.

This procedure does not signify a precise quantification of the triggering time. An overly-specific measure is objectionable for several reasons. First, the tolerable time for bringing a case to trial may vary over the years for practical and policy reasons. We have recognized that as a matter of policy the length of acceptable delay should be gradually shortened. Wombolt, 753 P.2d at 331-32, 45 St.Rep. at 716-17; State v. Chavez (1984), 213 Mont. 434, 442, 691 P.2d 1365, 1370; State v. Fife (Mont. 1981), [_Mont._,] 632 P.2d 712, 714, 38 St.Rep. 1334, 1336. Against such policy considerations we must weigh the reality of an often overburdened court system. The goal of the speedy trial guarantee is not simply speed; it is the orderly disposition of criminal proceedings while preventing oppressive tactics by the prosecution. United States v. Marion (1971), 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468, 474; Wiman, 769 P.2d at 1201, 46 St.Rep. at 281.

Second, the facts of the individual case may warrant a longer than usual delay. The United States Supreme Court has stated that the complexity of the case may be a factor in determining whether a delay should trigger further analysis:

“[T]he length of delay that will provoke ... an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.”

Barker, 407 U.S. at 530-31, 92 S.Ct. at 2192, 33 L.Ed.2d at 117. See also Chavez, 213 Mont. at 441, 691 P.2d at 1369; Cain v. Smith (6th Cir. 1982), 686 F.2d 374, 381; State v. Worden (1980), 188 Mont. 94, 96-97, 611 P.2d 185, 186. This Court has not yet found a case so complex as to warrant an exceptional delay without triggering a presumption of prejudice. However, in unusual circumstances, complexity may become a factor.

Finally, if the defendant actively avoids trial, speedy trial analysis may not be warranted regardless of the length of the delay. State v. Wirtala (1988), 231 Mont. 264, 752 P.2d 177, 180, 45 St.Rep. 596, 599.

One apparent exception to the procedure here adopted arises in cases in which the defendant has been accused, but the prosecution is procedurally barred from proceeding to trial. In United States v. Loud Hawk the United States Supreme Court held that a seven-year delay during the prosecution’s appeal of dismissed indictments was excluded from the defendants’ speedy trial claim. Loud Hawk (1986), 474 U.S. 302, 312, 106 S.Ct. 648, 654, 88 L.Ed.2d 640, 652. Similarly, in State v. Armstrong [189 Mont. 407,] this Court held that a three-year stay pending a habeas corpus petition should not be counted. Armstrong (1980), 189 Mont. 407, 424-25, 616 P.2d 341, 351. Such delays are not specifically attributable to the defendants; they are, more properly, time during which the speedy trial clock does not run and should not count toward triggering a presumption of prejudice.

In the case sub judice, the delay of 291 days is sufficient to raise a presumption of prejudice and require further inquiry. See State v. Palmer (1986), 223 Mont. 25, 27-28, 723 P.2d 956, 958 (256 days). The State now has the burden of providing a reasonable explanation for the delay and to show that the defendant was not prejudiced by the delay. Wombolt, 753 P.2d at 331, 45 St.Rep. at 716.

Reasons for the Delay

The parties agree that fourteen days of the delay are attributable to the appellant. The appellant produced a seven-day delay by asking for a continuance of the arraignment from August 10 to August 17, 1988. At the arraignment the appellant requested a substitution of District Court Judge James B. Wheelis. On August 24, 1988, District Court Judge Gordon R. Bennett assumed jurisdiction producing another seven-day delay attributable to the appellant.

The State also asserts that the ten days between January 31, 1989, when the defendant filed its first motion to dismiss, and February 10, 1989, when the District Court refused the motion, should be charged against the appellant. The State relies on State v. Kerns in which this Court excluded the period during which the defendant’s motion to dismiss was pending. Kerns (1986), 223 Mont. 172, 174, 725 P.2d 1190, 1191.

Kerns is distinguishable from the present case. In Kerns the District Court delayed the omnibus hearing and setting of the trial date until after it had ruled on the defendant’s motion to dismiss. Here, the District Court considered and decided Curtis’s motion to dismiss after setting the proposed trial date. On January 27, 1989, the District Court set the trial date for February 27. The appellant moved to dismiss on January 31 and the court decided the issue on February 10. Since the entire issue was settled within the pre-established trial schedule, it caused no delay and is not chargeable against the appellant. See State v. Pease (1987), 227 Mont. 424, 428-29, 740 P.2d 659, 662.

The appellant is, however, properly credited with a twenty five-day delay caused by another defense motion. The District Court granted the appellant’s uncontested motion to continue the trial date from February 23 to March 20, 1989. While the appellant correctly points out that the State used this period to continue trial preparations, the appellant fails to show that the State could not have proceeded to trial without it. The continuance, therefore, falls entirely on the appellant. Of the entire 291 days from accusation to trial, thirty-nine days are attributable to the appellant and the State must explain the remaining 252 days.

The retirement of Judge Bennett at the end of December 1988 caused some of this delay. His replacement, District Court Judge Jeffrey Sherlock, held the omnibus hearing and set the trial date on February 27, 1989. Such delays are institutional. State v. Ackley (1982), 201 Mont. 252, 256, 653 P.2d 851, 853 (delay caused by election of new judge held institutional). The State provides no explanation for the remaining time except that both parties were involved in trial preparation up to the time of trial. We therefore concluded that the State is chargeable with 252 days of institutional delay. Such delays are weighed against the State, but not as heavily as delays resulting from oppressive tactics. Chavez, 213 Mont. at 442, 691 P.2d at 1370. Although this delay is unusually long, delay is not in itself sufficient to establish a speedy trial violation. State v. Waters (1987), 228 Mont. 490, 492, 743 P.2d 617, 619. Against this delay, we must balance the other Barker factors.

Assertion of the Right

The State concedes that the appellant satisfied the third element by moving to dismiss on speedy trial grounds on January 31, 1989, and again on March 10, 1989.

Prejudice to the Defendant

In considering the final factor in the analysis, the court must look to the interests protected by the right to speedy trial: (1) to prevent oppressive pre-trial incarceration; (2) to minimize the defendant’s anxiety and concern; (3) to limit the impairment of the defense. Barker, 407 U.S. at 532, 92 S.Ct. at 2193, 33 L.Ed.2d at 118; State v. Morris (1988), 230 Mont. 311, 316, 749 P.2d 1379, 1382.

The first interest carries no weight in this case because Curtis was never incarcerated. See Morris, 230 Mont. at 316, 749 P.2d at 1382.

As to the second interest, Curtis argues that she suffered anxiety from her loss of employment. The appellant points to a letter discharging her from employment with the Ravalli County Public Health Nursing Service shortly after the investigation began. Curtis also notes that the presentence report documents the loss of her Licensed Practical Nurse status and employment with the Valley View Nursing Home as a result of her conviction.

The District Court found no serious allegation or proof of anxiety and we agree. The dismissal letter shows that Curtis lost her employment with Ravalli County, but not why she lost it. The presentence report indicates that she was able to work at her normal occupation at Valley View, though perhaps not for her chosen employer, up until the time of conviction. Her continued employment should have mitigated any anxiety Curtis suffered.

The existence of anxiety or emotional distress is notoriously difficult to prove. The State is faced with the near impossible burden of proving that it does not exist. We have recognized that, “The State’s burden to show a lack of prejudice becomes considerably lighter in the absence of evidence of prejudice to the appellant.” Ackley, 201 Mont. at 258, 653 P.2d at 854. It necessarily follows that the State’s burden to show a lack of anxiety becomes considerably lighter in the absence of more than marginal evidence of anxiety.

Even if Curtis had presented some evidence of anxiety, the anxiety she suffered was not uncommon. “A certain amount of anxiety and concern is inherent in being accused of a crime.” Waters, 228 Mont. at 494, 743 P.2d at 620. When a defendant is accused and then convicted of taking advantage of a position of care and trust, she should expect to lose that position and its requisite licensed privileges. As to this interest, we must conclude that it does not weigh heavily against the State.

We have already determined under the pre-indictment delay issue that the defense suffered little if any prejudice. The present analysis differs only in that the burden is on the State to prove a lack of prejudice. Based on our previous analysis of prejudice to the defense, we hold that the State has adequately met its burden.

Conclusion

We must consider the four speedy trial factors collectively and in relation to the circumstances of the particular case; no one factor is either necessary or sufficient to establish a deprivation of the right. Barker, 407 U.S. at 533, 92 S.Ct. at 2193, 33 L.Ed.2d at 118; Wombolt, 753 P.2d at 331, 45 St.Rep. at 716. The time required to bring this case to trial was longer than would normally be expected and the State offers no adequate explanation other than institutional delay. The State has, however, shown that the appellant suffered little more anxiety than would normally be expected. Finally, and most importantly, the appellant’s contention that the loss of Bullock as a witness prejudiced the defense is based primarily on speculation not supported by the record. Taking all of these factors together, we hold that the State did not violate appellant’s right to a speedy trial.

DIRECTED VERDICT

Following the State’s case-in-chief, the appellant moved for a directed verdict on all counts. The District Court denied the motion and the jury found Curtis guilty on Count One, theft from Bullock’s Citizens State Bank checking account, and Count Four, theft of Bullock’s Ravalli County Bank certificate of deposit.

The decision to grant or deny a directed verdict at the close of the prosecution’s case-in-chief is within the discretion of the trial court. The trial court may exercise that discretion to acquit the defendant only when the State presented no evidence upon which a jury could base a guilty verdict. State v. Miller (1988), 231 Mont. 497, 508-509, 757 P.2d 1275, 1282. In our review of the trial court’s decision,

“the relevant question is whether after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Miller, 231 Mont. 509, 757 P.2d at 1282, 45 St.Rep. at 798.

The statute cited in Count Four states:

“(2) A person commits the offense of theft when he purposely or knowingly obtains by threat or deception control over property of the owner and:
“(b) purposely or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property . . .” Section 45-6-301(2)(b), MCA.

The appellant argues that the court should have granted the directed verdict as to Count Four because the State failed to introduce evidence showing that Curtis used, concealed, or abandoned the certificate with the purpose of depriving Bullock of his • property. She contends that Bullock knowingly made her joint owner of the certificate of deposit, gave her his power of attorney, and approved of her cashing the certificate.

Although superficially persuasive, Curtis’s defenses are not the real issue as the recent case of State v. Haack demonstrates. In Haack, the victims set up a $30,000 joint checking account authorizing the defendant contractor to withdraw funds to finance construction of their home. The defendant was charged with theft when he allegedly withdrew more than $10,000 for unauthorized personal purposes. We affirmed the District Court’s ruling that, as a matter of law, the statute governing Joint deposits and joint certificates of deposit, § 32-1-442, MCA, precluded application of theft laws to withdrawals from such accounts. Haack (1986), 220 Mont. 141, 145, 713 P.2d 1001, 1003.

Haack is distinguishable from the present case. In that case the defendant was charged with stealing from an account to which the fully-informed victims had given him access for a lawful purpose. No allegation was made that the defendant deceived them by intending to steal from the account when he entered into the arrangement. In the present case, however, the issue is not whether the appellant had the power to cash the certificate. The State does not dispute that Bullock gave Curtis joint ownership of the certificate, a power of attorney, and approval of her actions. The real issue is why he did so. The State’s precise allegation is that Curtis deceived or threatened Bullock into giving her that access and approval.

The evidence is uncontested that Curtis cashed the certificate of deposit for her own benefit thereby purposely depriving Bullock of its use. The State offered no evidence that Curtis threatened Bullock. The only question left is whether the State presented enough evidence that any rational trier of fact could find that Curtis purposely or knowingly obtained control over the certificate through deception. We hold that it did.

The task of finding evidence of purposeful or knowing deception in this case would be much more straight forward if the record contained evidence of conspicuous untruths by Curtis. See Swope v. State (Tex. App. 1986), 723 S.W.2d 216. Circumstantial evidence, however, is sufficient to prove any element of a crime, State v. Bradford (1978), 175 Mont. 545, 550, 575 P.2d 83, 86, including mental state, State v. Krum (Mont. 1989), [238 Mont. 359,] 777 P.2d 889, 890, 46 St.Rep. 1334, 1336, and deception, State v. Howe (N.D. 1987), 413 N.W.2d 350, 354-55.

While a close question, the jury in this case could have relied on the State’s circumstantial evidence to find that Curtis intentionally deceived Bullock. The evidence establishes that prior to employing Curtis, Bullock was a frugal man seldom spending more than was necessary for his daily needs. Bullock had given his niece Curry a power of attorney to oversee his financial affairs indicating that he was unsure of his own abilities. When Bullock hired Curtis, the situation dramatically changed. Curtis acquired a power of attorney and took control of Bullock’s finances. Over a period of thirteen months, she gradually siphoned money out of his steadily diminishing funds. She used the money for her own benefit and gave it to her children. Curtis knew that Curry had control of Bullock’s finances, but failed to communicate with her about the alleged gifts. We hold that from this scenario a reasonable jury could have concluded that the appellant intentionally used her influence over the aged and vulnerable Bullock to deceive him into acting against his own best interests.

While the appellant has presented close and difficult questions on all issues, the record contains sufficient evidence to uphold her conviction.

Affirmed.

JUSTICES HARRISON, BARZ and WEBER concur.

JUSTICE McDONOUGH,

dissenting:

The speedy trial issue is analogous to Senator Everett Dirkson’s statement of a billion dollars here and a billion dollars there and pretty soon a lot of money is being thrown around. In this case there is a little prejudice before charging, a little more prejudice before trial, and a major infliction of prejudice when the alleged victim was found incompetent to testify.

The defendant’s speedy trial rights were violated.

A 291 day delay occurred between the time the charges were filed and the time of trial. The State asserts that 49 days are chargeable to the defendant. This leaves 242 days. A delay of this magnitude necessitates a speedy trial inquiry. When faced with such an inquiry the State must assert a reasonable excuse for the delay and show that the defendant was not prejudiced. Furthermore, there is a presumption that the defendant was prejudiced by the delay and it is the State’s burden to overcome it. The State has failed to do so. State v. Waters (1987), 228 Mont. 490, 743 P.2d 617.

The State’s excuse of “institutional delay” does not overcome this presumption. The District Court found the delay attributable to the retirement of the presiding judge and other delays within the system. Normally, due to the inherent characteristics of our criminal justice system, a six month delay is not unexpected between time of charging and the time of trial. Any systematic delays longer than six months, however, must he extraordinary and compelling or else charges should be dismissed. Such circumstances are not shown here. The presiding judge officially retired on the first Monday in January of 1989. Furthermore, the State knew that he would retire even before charges were filed in June of 1988. These facts do not rise to the level of extraordinary and compelling.

The constitutional right of a speedy trial applies to all branches of government. The executive to prosecute, the judiciary to conduct, and the legislative not to enact constitutional impediments or fail to provide sufficient resources to the other branches. Under the set of circumstances presented by this case, it is clear that the government failed in its duty to afford the defendant her constitutional right to a speedy trial. “Institutional delays” as set forth here are not satisfactory excuses.

Moreover, there is a presumption that this delay prejudiced the defendant. The victim, who was in fact the salient witness of the case, was a very elderly man in his eighties who was subject to all of the vagaries of advanced age, particularly mental deficiency. There was no extraordinary number of witnesses, the case was not unusually complex, and written documents were practically all bank records obtainable by investigative subpoenas. However, 14 months transpired from the complaint to law enforcement authority until the time the defendant was charged. During this period of time the victim wrote a new will, prepared by the attorney for the complaining witness. This attorney testified that the victim was competent to dispose of his property. However, by the time of trial, approximately 18 months later, he was deemed incompetent to testify. The State’s reasons for the delay in bringing the defendant to trial are insufficient to overcome the facts which clearly support the presumption that the defendant was prejudiced.

The State argues that defendant was able to present witnesses who testified as to the victim’s competency at the time of the alleged criminal acts and therefore was able to present her case before the jury. However, this delay has prevented her from presenting the victim as part of her case in chief and has prevented her from cross-examining him as to the actual events surrounding the alleged criminal acts.

In view of the victim’s age, physical and mental state, and the importance of his testimony, the State has not overcome the presumption of prejudice. The State knew or should have known the competency of the most important witness for the defense was likely to deteriorate. Despite this knowledge it did not take steps to bring the matter to trial, and therefore the case should be reversed and the charges dismissed.

JUSTICES SHEEHY and HUNT concur in the foregoing dissent of justice McDonough.

        FOOTNOTES

      1. See e.g. State v. Wiman (Mont. 1989), [236 Mont. 180,] 769 P.2d 1200, 1202, 46 St.Rep. 279, 283; State v. Forsyth (1988), 233 Mont. 389, 761 P.2d 363, 369, 45 St.Rep. 1577, 1581; State v. Kerns (1986), 223 Mont. 172, 174, 725 P.2d 1190, 1191; State v. Robbins (1985), 218 Mont. 107, 117, 708 P.2d 227, 234; State v. Britton (1984), 213 Mont. 155, 161, 689 P.2d 1256, 1260; State v. Kelly (1983), 203 Mont. 159, 161, 661 P.2d 26, 27.

      . See e.g. State v. Morris (1988), 230 Mont. 311, 315, 749 P.2d 1379, 1381; State v. Tilly (1987), 227 Mont. 138, 140-41, 737 P.2d 484, 486; State v. Palmer (1986), 223 Mont. 25, 28, 723 P.2d 956, 958; State v. Chavez (1984), 213 Mont. 434, 441-42, 691 P.2d 1365, 1370; State v. Ackley (1982), 201 Mont. 252, 256, 653 P.2d 851, 853; State v. Larson (1981), 191 Mont. 257, 262, 623 P.2d 954, 958; State v. Shurtliff (1980), 187 Mont. 235, 239-40, 609 P.2d 303, 305-06.

      . This procedure is utilized by the majority of the federal circuit courts. The circuit courts near universally look only to the unallocated length of the delay in determining whether a presumption of prejudice has arisen. They credit delays to the defense and the prosecution only after finding that such a presumption exists. See United States v. Columbo (1st Cir. 1988), 852 F.2d 19, 24; United States v. Richards (8th Cir. 1983), 707 F.2d 995, 997; United States v. Varella (11th Cir. 1982), 692 F.2d 1352, 1359, cert. den. 464 U.S. 838, 104 S.Ct. 127, 78 L.Ed.2d 124 (1983); Cain v. Smith (6th Cir. 1982), 686 F.2d 374, 381; United States v. Nance (9th Cir.), 666 F.2d 353, 360, cert. den. 456 U.S. 918, 102 S.Ct. 1776, 72 L.Ed.2d 179 (1982; United States v. Greene (5th Cir. 1978), 578 F.2d 648, 655, cert. den. 439 U.S. 1133, 99 S.Ct. 1056, 59 L.Ed.2d 96 (1979); United States v. Calloway (D.C. Cir. 1974), 505 F.2d 311, 316; but see United States v. Struyf (11th Cir. 1983), 701 F.2d 875, 878-79; Ricon v. Garrison (4th Cir.), 517 F.2d 628, 632-33, cert. den. 423 U.S. 895, 96 S.Ct. 195, 46 L.Ed.2d 127 (1975).

      . We note that the appellant deprived the State of an opportunity to respond to evidence based on the presentence report by referring to it for the first time in the appellant’s reply brief.