author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROBERT MICHAEL RHYNE, Defendant and Appellant.
    No. 91-230.
    Submitted on briefs Mar. 5, 1992.
    Decided July 2, 1992.
    49 St.Rep. 577.
    253 Mont. 513.
    833 P.2d 1112.

      For Defendant and Appellant: Benjamin R. Anciaux, Poison.
    For Plaintiff and Respondent: Marc Racicot, Attorney General; Cregg W. Coughlin, Assistant Attorney General, Helena; Larry Nistler, County Attorney; Kathleen O’Rourke-Mullins, Deputy County Attorney, Poison.
   JUSTICE GRAY

delivered the Opinion of the Court.

The defendant, Robert Michael Rhyne, appeals his convictions on five counts of incest following a jury trial in the District Court of the Twentieth Judicial District, Lake County. We affirm.

We address the following issues on appeal:

1. Did the District Court err in ruling that the defendant could not introduce into evidence the victim’s medical records obtained by the defendant or testimony based on the records?

2. Did the District Corut err in granting the State’s motion in limine to exclude evidence relating to the victim’s claimed abortion?

3. Did the District Court err in denying the defendant’s discovery request to obtain the victim’s records from her current psychological counselor?

4. Was the defendant denied a fair trial as a result of prosecutorial misconduct?

Vicki L. became engaged to Rhyne in 1986. In April 1986, she and her four children from a previous marriage, including K.L., began residing with Rhyne in Poison, Montana. Vicki L. and Rhyne were married in August 1986.

K.L. testified that she was sexually assaulted by Rhyne on several occasions between October 1986 and September 1988. Throughout this period of time K.L. was under eighteen years of age. K.L. testified that she was first assaulted by Rhyne after she accidently discovered him in his bedroom having extramarital sexual relations. She claimed that, upon her discovery, Rhyne became physically abusive, threw her to the floor and had sexual intercourse with her while the other person held her down.

K.L. testified that she was next assaulted after she had become angry with her mother and hit her. KL.’s mother asked Rhyne to discipline her. In response to the request, Rhyne threw K.L. into her bedroom and, in the course of striking her, fondled her breasts and pubic area.

According to K.L., another assault occurred when Rhyne chased her into her bedroom to discipline her. She testified that Rhyne had sexual intercourse with her, after which he forced her to perform oral sex. K.L. stated that a fourth assault occurred when Rhyne had sexual intercourse with her after she and Rhyne argued over which television program to watch. K.L. further testified that Rhyne had sexual intercourse with her on another occasion after he returned home from work and found her still asleep in bed.

Rhyne was charged by an information filed on August 11,1989 with five counts of incest. Following a period of discovery, the State filed a motion in limine on October 15, 1990, seeking to exclude evidence of KL.’s prior sexual conduct pursuant to § 45-5-511(4), MCA (1989). K.L. told her counselors that she previously had been sexually assaulted by an uncle and her natural father and had sexual contact with another youth. These revelations were contained within medical records released to Rhyne in response to his pretrial discovery requests.

Rhyne filed a motion in limine on October 18, 1990, seeking approval of the admission of evidence regarding KL.’s prior sexual abuse. He argued that such evidence was admissible to rebut the State’s offered expert testimony that K.L. suffered from borderline personality disorder, depression and post-traumatic stress disorder. The parties’ motions in limine were orally argued to the court that afternoon; the court did not make a ruling at that time.

That same day, the State filed an objection to the disclosure of KL.’s records from her current psychological counselor, Dr. Joan Hess-Homeier, which Rhyne had requested. The State opposed the disclosure on the grounds that nothing within Dr. Hess-Homeier’s records pertaining to K.L. was relevant or exculpatory, KL.’s right to confidentiality outweighed Rhyne’s right to discovery and disclosure would jeopardize the doctor-client relationship between Dr. HessHomeier and K.L. The State requested the court to deny Rhyne access to Dr. Hess-Homeier’s records outright or, in the alternative, inspect the records in camera to determine their relevancy. The State’s objection was orally argued to the court that afternoon. After being informed that the State did not intend to call Dr. Hess-Homeier as a witness at trial or rely on her records and that Rhyne had not made a request for a current psychological evaluation of K.L. by a psychologist of his choice, the court ruled that Rhyne could not obtain Dr. Hess-Homeier’s records pertaining to K.L.

The next day, on October 19, 1990, the District Court granted the State’s motion in limine to exclude evidence of KL.’s prior sexual conduct pursuant to § 45-5-511(4), MCA (1989). The court’s order prohibited “reference to or offering evidence concerning the alleged victim’s past sexual conduct with anyone other than the Defendant.” The court also denied Rhyne’s motion in limine to introduce evidence of KL.’s prior sexual abuse.

Several pleadings then followed. Rhyne filed an amended notice of witnesses on October 22, 1990, in which he stated that he intended to call Dr. James Wemple as an expert to testify regarding the effect of prior sexual assaults upon K.L. The State requested a clarification of the court’s October 19, 1990 order to determine what evidence would open the door to Rhyne’s introduction of K.L.’s prior sexual abuse. The State also filed a motion in limine to exclude evidence relating to KL.’s claim that she had undergone an abortion as a result of becoming pregnant by Rhyne. Rhyne sought reconsideration of the court’s ruling that K.L.’s prior sexual abuse was not admissible.

A hearing regarding the various pleadings filed by Rhyne and the State was held on October 24, 1990. The District Court ruled that Rhyne could not introduce evidence relating to KL.’s alleged abortion unless the State first opened the door to such evidence. The court also ruled that evidence of K.L.’s prior sexual abuse could not be introduced by Rhyne unless the State opened the door regarding RLL.’s prior sexual abuse or her mental condition. On the basis of this latter ruling, the State informed the court and Rhyne that it would not call an expert to testify. Additionally, in light of its ruling regarding the State’s opening the door to KL.’s prior sexual abuse, the court deferred, until trial, ruling on the admissibility of KL.’s medical records which were obtained by Rhyne and served as the basis of his expert’s opinion concerning K.L.

A jury trial was held on October 25, 26 and 29, 1990. During voir dire, the prosecutor inquired of the prospective jurors if any of them would feel uncomfortable telling a group of people the details of his or her first sexual experience. In chambers, Rhyne objected to any reference to the incest claims as K.L.’s first sexual experiences. The court instructed the prosecutor to avoid any comments which would suggest that the alleged acts of incest were K.L.’s first sexual experiences.

During the defendant’s case-in-chief, Dr. Wemple was called to testify and was qualified as an expert. When defense counsel asked Dr. Wemple whether he had received and reviewed any information regarding K.L., a recess was taken to allow the court to further consider and rule upon the admissibility of K.L.’s medical records. Thereafter, the court concluded that the State had not opened the door to K.L.’s prior sexual abuse or mental condition and ruled that Rhyne could not introduce KL.’s medical records or present testimony, based on the records, regarding her mental condition.

The jury found Rhyne guilty on all five counts of incest. He was sentenced to ten years in prison on each count with the sentences to run consecutively. The District Court suspended the sentences on four of the five counts and ordered Rhyne to complete sexual offender treatment at the prison. Rhyne appeals.

I.

Did the District Court err in ruling that the defendant could not introduce into evidence the victim’s medical records obtained by the defendant or testimony based on the records?

Rhyne presents several arguments in support of his position that the District Court erred in prohibiting the introduction of K.L.’s medical records into evidence. We will not disturb a district court’s ruling on the admissibility of evidence absent an abuse of discretion. State v. Hall (1990), 244 Mont. 161, 169, 797 P.2d 183, 189.

Rhyne first asserts that he was denied his Sixth Amendment right to confront witnesses against him because he was not permitted to introduce KL.’s medical records or discuss her mental condition. He argues that, as a result of the court’s ruling, he was not able to effectively cross-examine K.L.

The medical records at issue were obtained by Rhyne through pretrial discovery and contained information regarding K.L.’s prior sexual abuse. Rhyne attempted to use the records to support his claim that K.L. was suffering from a mental condition which was caused, at least in part, by her prior sexual abuse and which reduced her credibility.

The District Court’s order of October 19, 1990 prohibited the introduction of evidence of KL.’s prior sexual abuse pursuant to § 45-5-511(4), MCA (1989), which provides:

(4) No evidence concerning the sexual conduct of the victim is admissible in prosecutions -under this part except:
(a) evidence of the victim’s past sexual conduct with the offender;
(b) evidence of specific instances of the victim’s sexual activity to show the origin of semen, pregnancy, or disease which is at issue in the prosecution.

KL.’s medical records which were obtained by Rhyne and evidence of her mental condition were excluded on the basis that such evidence would violate the court’s October 19,1990 order prohibiting evidence regarding KL.’s prior sexual abuse.

We previously have held that, under § 45-5-511(4), MCA (1989), sexual conduct of the victim which is inadmissible includes prior sexual abuse. State v. Van Pelt (1991), 247 Mont. 99, 103, 805 P.2d 549, 552. Additionally, we held in Van Pelt that a defendant’s constitutional right to confront witnesses is not violated by the exclusion of evidence of the victim’s prior sexual abuse unless the victim’s accusations or allegations of prior sexual abuse have been proven to be false or are admitted to be false. Van Pelt, 247 Mont. at 104, 805 P.2d at 552; see also State v. Anderson (1984), 211 Mont. 272, 686 P.2d 193 (limiting a defendant’s cross-examination of a complaining witness in a sex offense case where there is evidence of prior false accusations infringes upon the defendant’s constitutional right to confront witnesses).

In the present case, KL.’s claims of prior sexual abuse had not been adjudicated to be false, nor were they admitted to be false. As such, evidence pertaining to KL.’s prior sexual abuse as a means to attack her credibility was not admissible.

In addition, Rhyne was allowed to thoroughly cross-examine K.L.; his cross-examination was restricted only when he attempted to elicit testimony regarding KL.’s prior incidents of sexual abuse and the medical records that documented them. Defense counsel questioned K.L. regarding the times, places and circumstances surrounding the alleged assaults by Rhyne. He asked K.L. about inconsistent statements that she had given to a law enforcement officer concerning the assaults. He asked her about statements regarding the assaults that she claimed to have made to friends. In addition, defense counsel inquired about K.L.’s feelings toward Rhyne, her anger toward him for moving the family to a house out of town and other possible influences upon her testimony.

Defense counsel asked K.L. at one point during cross-examination if she had always told the truth to her counselors. K.L. admitted that she had not revealed certain facts, but she denied that she had lied. In chambers, the State objected to defense counsel’s inquiry on the grounds that he was merely attempting to introduce KL.’s mental condition so as to open the door to prior sexual abuse. Defense counsel openly admitted that he wished to discuss KL.’s medical records for impeachment purposes. The court stated that it would not allow defense counsel to use the medical records for impeachment. The court did, however, permit defense counsel to inquire of K.L. what facts she claimed to have withheld from her counselors. Thus, consistent with the court’s earlier riding, Rhyne’s cross-examination was limited only with regard to evidence of K.L.’s prior sexual abuse. The record clearly shows that Rhyne was afforded the opportunity to effectively cross-examine K.L. We conclude, therefore, that Rhyne’s right to confrontation was not violated.

Rhyne next asserts that the District Court’s ruling concerning KL.’s medical records was erroneous because it prevented him from presenting his defense through an expert witness. Rhyne wished to present the testimony of Dr. Wemple in an attempt to show that K.L. suffered from depression and other mental disorders and that her mental condition may have existed prior to Rhyne’s alleged assaults. In addition, Rhyne wished to show that KL.’s mental condition adversely affected her credibility. The District Court inquired of defense counsel:

THE COURT: [Tell me how] you believe that Doctor Wemple could give me meaningful testimony without relying upon the kinds of evidence which the Court has excluded, specifically the prior sexual offenses by persons other than this defendant.
[DEFENSE COUNSEL]: I’ve asked Doctor Wemple that question. And he said, “I can’t ignore them as a part of -understanding who she is, but I don’t have to talk about them to the jury.” In other words, he can review the whole record and have it in hand and in mind but as he explains the psychology underlying [K.L.] and people like her, he doesn’t have to refer to sexual assaults — other sexual assaults at all. . . .
THE COURT: He won’t refer to it but nevertheless it’s an integral and essential part of his reaching the conclusion.
[DEFENSE COUNSEL]: But the jury will never know that. He simply is going to discuss his conclusions based on having read the records unless I or the State asks him specifically what parts of the record he relies upon.
THE COURT: But your expert simply can’t give expert testimony without the material that’s been excluded as forming the basis for his opinion.
[DEFENSE COUNSEL]: That’s correct — not correct, your Honor. He thinks he can talk about who this girl is. He can start from her diagnosis, which I’ve described to you, and then describe what that class of people is like and the problems that arise with credibility.
THE COURT: That very diagnosis is based upon her entirety [sic],
[DEFENSE COUNSEL]: Yes, of necessity, but he doesn’t have to testify as to the elements of that, so there is no prejudice. They’re not going to be talking about sexual assaults.

The court ruled that Dr. Wemple could not give any testimony regarding KL.’s mental condition which would be based upon her medical records. Rhyne argues that the court erred by not allowing Dr. Wemple to testify without specifically referring to KL.’s prior sexual abuse. We disagree.

Rhyne’s argument ignores the fact that K.L.’s medical records and mental condition, upon which his expert’s testimony would have been based, were inextricably related to her claims of prior sexual abuse. It is clear from the colloquy between the court and defense counsel that KL.’s prior sexual abuse was an integral part of both the medical records and Dr. Wemple’s offered testimony. To allow Dr. Wemple’s testimony would have been to allow Rhyne to circumvent the court’s order prohibiting evidence, pursuant to § 45-5-511(4), MCA(1989), of KL.’s prior sexual abuse.

Finally, Rhyne asserts that the District Court erred in prohibiting the introduction of KL.’s medical records because they contained “[n]umerous other examples showing [KL.’s] biases, motives and prejudices that could cause her to testify falsely.” Rhyne’s assertion lacks merit. Although the records in question were obtained during discovery and reviewed by Rhyne, he did not point out during trial, nor does he now, what these “numerous” examples are or how they could have been used to challenge KL.’s testimony. Rhyne’s unsupported and conclusory allegation is inadequate to show that the court abused its discretion in making its ruling. For the foregoing reasons, we hold that the District Court did not abuse its discretion and, thus, did not err in ruling that Rhyne could not introduce KL.’s medical records into evidence.

II.

Did the District Court err in granting the State’s motion in limine to exclude evidence relating to the victim’s claimed abortion?

K.L. told an investigating officer that she had become pregnant by Rhyne and had aborted the pregnancy in Missoula. She maintained that she did not know where the abortion had been performed but did indicate that it may not have occurred in a medical clinic. Rhyne used a release form signed by K.L. and her mother in an unsuccessful attempt to find records of the abortion. Rhyne argues on appeal that the District Court’s ruling excluding evidence relating to K.L.’s claimed abortion erroneously deprived him of an opportunity to attack K.L.’s credibility on what he contends was “a false report of an abortion.”

The State’s motion in limine and oral argument at the hearing on the motion were based largely on its contention that evidence regarding KL.’s claimed abortion was irrelevant to the incest charges and, thus, inadmissible pursuant to Rule 402, M.R.Evid. The State’s motion and argument were also based on its contention of undue prejudice with respect to casting K.L. as a “bad” person for having an abortion. In response, Rhyne argued that the evidence was relevant to K.L.’s credibility and, therefore, admissible. The District Court granted the motion to exclude the abortion related evidence but did not state the basis for its ruling. It did state that it would permit the introduction of the evidence if the State opened the door to such evidence at trial.

Rule 401, M.R.Evid., defines relevant evidence as evidence having any tendency to make the existence of any fact in question more probable or less probable than it would be without the evidence; it may include evidence bearing upon a witness’ credibility. Under Rule 402, M.R.Evid., relevant evidence is generally admissible while irrelevant evidence is not admissible. Rule 403, M.R.Evid., provides that relevant evidence may be excluded under certain circumstances:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

As stated earlier, the District Court’s determination of the admissibility of evidence will not be disturbed absent an abuse of discretion. Hall, 244 Mont. at 169, 797 P.2d at 189.

This Court is very protective of a defendant’s right to show lack of veracity and credibility of a complaining witness, particularly in sex offense cases where it is often one person’s word against that of another. See, e.g., Anderson, 211 Mont. 272, 686 P.2d 193 (general policy against sordid probes into a victim’s past sexual conduct is not violated if the offered evidence can be narrowed to the issue of the complaining witness’ veracity). We conclude that in this case the excluded evidence did have some relevance under Rule 401, M.R.Evid., in that it may have touched on KL.’s credibility.

We further conclude, however, that the limited relevance or probative value of the evidence was outweighed by its prejudice to K.L. and confusion of the issues under Rule 403, M.R.Evid. Rhyne could not show with certainty that K.L. did not have an abortion and he admitted at the hearing on the motion that he did not have impeaching evidence “of an absolute nature.” He nevertheless wanted to show that the abortion was “unlikely’ through “a lot of facts” which flowed from KL.’s statement that she had the abortion. Rhyne essentially wanted to work backwards — showing that the abortion was “unlikely,” therefore K.L.’s pregnancy did not occur, therefore sexual intercourse/incest did not occur. This approach not only presented a danger of undue prejudice to K.L. but also was circuitous and confusing. The District Court noted the possibility of the evidence’s relevance but then, after considering all of Rhyne’s arguments and offer of proof, granted the State’s motion with the condition that the evidence could be introduced if the State opened the door at trial. Under these particular facts and Rule 403, M.R.Evid., the court’s ruling did not constitute an abuse of discretion. We hold that the District Court did not err in granting the State’s motion in limine to exclude evidence of K.L.’s claimed abortion.

III.

Did the District Court err in denying the defendant’s discovery request to obtain the victim’s records from her current psychological counselor?

Rhyne contends that the District Court erred when it denied his discovery request to obtain K.L.’s records from her current psychological counselor, Dr. Hess-Homeier. He asserts that the court should have conducted an in camera inspection of those records “[t]o determine if they contained material [he] should have had access to” before ruling that they were not to be disclosed. He argues that the court’s ruling denied him his constitutional right to confront witnesses against him.

We find no error on the part of the District Comb in failing to inspect Dr. Hess-Homeier’s records pertaining to K.L. in camera before ruling on Rhyne’s discovery request. Dr. Hess-Homeier was not a witness against Rhyne and the State did not rely on her records as part of its case. Moreover, Rhyne neither requested permission to conduct an in camera inspection of the records nor requested the District Court to make such an inspection.

In addition, the District Court’s refusal to grant Rhyne’s discovery request did not violate his right of confrontation. In State v. Reynolds (1990), 243 Mont. 1, 792 P.2d 1111, we affirmed the district court’s refusal to order the release and disclosure of the victim’s medical and psychiatric records. We held that the defendant was not denied his right of confrontation, stating:

“[T]he right of a defendant to confront his accusers is not equivalent to a constitutionally compelled rule of pretrial discovery. Rather, the right of confrontation is a trial right, guaranteeing an opportunity for effective cross-examination. See Pennsylvania v. Ritchie, 480 U.S. 39, 109 S.Ct. 989, 94 L.Ed.2d 40 (1987).” [Emphasis in original.]

Reynolds, 243 Mont. at 7, 792 P.2d at 1115 (quoting People v. Exline (Colo. App. 1988), 775 P.2d 48, 49). Because the defendant was afforded the opportunity at trial to cross-examine all witnesses against him, the court’s ruling denying him access to the records did not violate his right of confrontation. Reynolds, 243 Mont. at 8, 792 P.2d at 1115 (citing State v. Thiel (1989), 236 Mont. 63, 768 P.2d 343).

In the present case, Rhyne was afforded the opportunity to effectively cross-examine all witnesses against him. Therefore, he was not denied his right of confrontation. We hold that the District Court did not err in denying Rhyne’s discovery request to obtain Dr. HessHomeier’s psychological records pertaining to K.L.

IV.

Was the defendant denied a fair trial as a result of prosecutorial misconduct?

As previously noted, the prosecutor inquired during voir dire of the prospective jurors if any of them would feel uncomfortable telling a group of people the details of his or her first sexual experience. After an objection by Rhyne, the court instructed the prosecutor to make no further comments which would suggest that the alleged acts of incest were KL.’s first sexual experiences. Rhyne contends that the prosecutor’s comment denied him a fair trial because he was not allowed to present “[a]ny possible explanation for KL.’s motives, biases and prejudices other than his guilt to the offense charged.”

“It has long been the law of this state that prejudice in a criminal case will not be presumed, but must appear from the denial or invasion of a substantial right from which the law imputes prejudice.” State v. Miller (1988), 231 Mont. 497, 507, 757 P.2d 1275, 1281. Rhyne has not demonstrated that he was prejudiced by the prosecutor’s comment. Our review of the record reveals that the thrust of the comment was not the suggestion that the alleged acts were KL.’s first sexual experiences. Rather, it was made to elicit a response from the jury panel with respect to the potential difficulty on KL.’s part to testify about the alleged acts of incest. Significantly, although Rhyne objected to the prosecutor’s comment, he did not request the District Court to admonish the jury panel or give a cautionary instruction. Nor did he request a mistrial. Given these circumstances, we hold that Rhyne was not denied a fair trial as a result of prosecutorial misconduct.

Affirmed.

JUSTICES HARRISON, HUNT, McDONOUGH and TRIEWEILER concur.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MICHAEL T. BIRTHMARK, Defendant and Appellant.
    No. 91-411.
    Submitted on briefs May 28, 1992.
    Decided July 2, 1992.
    49 St.Rep. 583.
    253 Mont. 526.
    833 P.2d 1103.

      For Defendant and Appellant: Michael T. Birthmark, Pro se, Deer Lodge.
    For Plaintiff and Respondent: Marc Racicot, Attorney General; Jennifer M. Anders, Assistant Attorney General, Helena; Christopher G. Miller, County Attorney, Deer Lodge.
   JUSTICE GRAY

delivered the Opinion of the Court.

The defendant, Michael T. Birthmark (Birthmark), appeals his conviction of possession of a deadly weapon while in prison, pursuant to § 45-8-318, MCA, following a jury trial in the Third Judicial District Court, Powell County. We affirm.

As a preliminary matter, we note that after the notice of appeal was filed in this case, Birthmark’s trial counsel filed with the District Court a motion to withdraw as counsel on the basis of lack of meritorious appealable issues. Counsel’s motion was accompanied by a Memorandum which referred to possible arguments in support of the appeal. The District Court granted the motion. While the District Court was not the appropriate forum for a motion to withdraw at that stage of the proceedings, we issued an Order upon receipt of the District Court’s order granting the motion stating that the Memorandum submitted would be considered an “Anders” brief. Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. We provided Birthmark with an opportunity to respond to his counsel’s brief.

Following that response, we examined the record, as required by Anders, and concluded that counsel’s evaluation of the case was sound; therefore, we granted counsel leave to withdraw and allowed Birthmark to proceed pro se with his appeal. The State responded to the “Anders” brief and Birthmark’s supplement thereto.

We consider the following issues raised by Birthmark:

1. Did the District Court commit reversible error in admitting certain testimony?

2. Is there sufficient evidence in the record to support the defendant’s conviction?

3. Is Birthmark entitled to further representation?

This action stems from an incident in the Montana State Prison in which Officer Neil Lehto discovered a potentially dangerous weapon in Birthmark’s cell in “A” block, the maximum security unit of the prison. Lehto found an altered eyeglass arm-piece tucked away in a roll of toilet paper underneath Birthmark’s sink. The arm-piece appeared to have been straightened and sharpened.

On September 27, 1990, an information was filed charging Birthmark with the offense of possession of a deadly weapon by a prisoner in violation of § 45-8-318, MCA. Ajury trial was held at which Birthmark was represented by court-appointed counsel.

The jury found Birthmark guilty on April 18, 1991. The court sentenced him to five years’ imprisonment with an additional two-year sentence as a result of the court’s finding that Birthmark was a persistent felony offender. Birthmark appealed.

I.

Did the District Court commit reversible error in admitting certain testimony?

Birthmark contends that the District Court erred in admitting certain testimony by Officer Lehto. The State responds that any error in admission of the testimony was harmless.

Birthmark contends that Officer Lehto’s testimony that the aim-piece had been sharpened was inadmissible. Defense counsel made a general objection to this testimony; no specific grounds were given. Following the objection, counsel was allowed to voir dire the witness. When the voir dire became cross-examination and not voir dire, the District Court ended the voir dire.

We note that defense counsel’s objection to this testimony was inadequate; no specific basis for the objection was made. “[A]n objection, to be good, must point out the specific ground of the objection ....”State v. Walker (1966), 148 Mont. 216, 223, 419 P.2d 300, 304; Rule 103, M.R.Evid. We conclude that defense counsel's general objection was insufficient to preserve the error for appeal.

In addition, Birthmark objected to Officer Lehto’s testimony concerning the purpose for treating the arm-piece as evidence, tagging it and taking steps to preserve it. Defense counsel objected that the question called for a legal conclusion which the witness was not qualified to make. The court overruled counsel’s objection and Officer Lehto responded:

We send it up to the prison base for them to make a determination on this as a dangerous weapon.

Lehto testified that tagging the evidence preserves the matter for future prosecution.

The record reveals that Officer Lehto’s testimony concerning these procedures was descriptive only. The question did not call for a legal conclusion, nor did Lehto’s response constitute such a conclusion. We conclude, therefore, that the admission of Officer Lehto’s testimony concerning the processing of evidence was not error.

Lehto also was allowed to testify, over objection that the testimony was speculative, that the arm-piece had been sharpened and that:

A: The only conceivable reason that this [altered eyeglass arm-piece] would be in an inmate’s cell, in my opinion, is to be used as a shank. It was either given to Mr. Birthmark to keep for somebody, or it was made into this position to trade for other contraband — Birthmark is correct that Lehto’s testimony concerning the sharpness of the arm-piece and its possible uses called for speculation. Therefore, admission of this testimony was error. The judge, however, had the testimony stricken from the record and admonished the jury to disregard it. Striking erroneously admitted evidence and admonishing the jury to disregard it serves to cure the error. State v. Smith (1986), 220 Mont. 364, 715 P.2d 1301.

Birthmark further objected, on relevancy grounds, to Lehto’s testimony that specific items were not permitted in “A” block. This testimony was irrelevant and its admission was error. We must decide, therefore, whether the error was prejudicial and affected the substantial rights of the party, or whether the error is harmless. Section 46-20-701, MCA. The test for prejudicial error is whether there is a reasonable possibility that the evidence might have contributed to the conviction. Brodniak v. State (1989), 239 Mont. 110, 779 P.2d 71.

Lehto’s testimony was a mere recitation of prison policy which added nothing to the case. It was not related to the controlling facts of the case and did not cast Birthmark, or any action or activity by him, in a negative light. We conclude that no reasonable possibility exists that this improperly admitted evidence contributed to the jury’s verdict. Accordingly, we hold that any error on the part of the District Cotut in admitting Officer Lehto’s testimony was harmless error.

II.

Is there sufficient evidence in the record to support the defendant’s conviction?

Birthmark claims that he is innocent of the charge of possession of a deadly weapon in prison. The State contends that there is sufficient evidence on the record to support the conviction.

The standard of review for sufficiency of the evidence in criminal cases is whether “evidence, when viewed in a light most favorable to the prosecution, would allow a rational trier of fact to find essential elements of the crime beyond a reasonable doubt.” State v. Beach (1991), 247 Mont. 147, 805 P.2d 564. Birthmark was convicted under § 45-8-318, MCA, which provides:

Every prisoner committed to the Montana state prison ... who, while at the state prison ... purposely or knowingly possesses or carries upon his person or has under his custody or control without lawful authority a dirk, dagger, pistol, revolver, slingshot, sword cane, billy, knuckles made of any metal or hard substance, knife, razor not including a safety razor, or other deadly weapon is guilty of a felony.

The evidence is undisputed that Birthmark was an inmate at the Montana State Prison and that he possessed the altered eyeglass arm-piece. The only elements of the offense at issue, therefore, are whether the arm-piece was: 1.) a deadly weapon 2.) knowingly or purposely possessed by Birthmark.

The jury was instructed on the basis of § 45-2-101(71), MCA, that a weapon is “any instrument, article, or substance which, regardless of its primary function, is readily capable of being used to produce death or serious bodily injury.” The jury had the altered arm-piece before it. In addition, Lehto testified that the arm-piece had been classified as a deadly weapon by prison authorities. We conclude that sufficient evidence was presented upon which the jury could properly determine beyond a reasonable doubt that the arm-piece was a deadly weapon.

We must also determine if Birthmark “knowingly” possessed a deadly weapon. “When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence.” Section 45-2-101(33), MCA. Here, knowledge that the altered arm-piece could have been construed as a deadly weapon is needed to satisfy the statute. Testimony was offered that prisoners in “A” block were allowed nothing that had been altered. Birthmark testified not only that he altered the arm-piece, but that after doing so, the arm-piece was sharper. We conclude that there is evidence on the record that Birthmark was aware of a high probability that the altered arm-piece could be construed as a deadly weapon.

We hold that there was sufficient evidence for the jury to find the elements of the crime beyond a reasonable doubt and, therefore, to support defendant’s conviction.

III.

Is Birthmark entitled to further representation?

Birthmark requests this Court appoint new counsel to handle his appeal. We decline to do so. The requirements of Anders are met by the orders issued and procedures utilized by this Court in the present case. Having determined that no meritorious issues exist on appeal, we hold that Birthmark is not entitled to farther representation.

Affirmed.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DAVID FOREST BOWER, Defendant and Appellant.
    No. 91-611.
    Submitted on briefs May 7, 1992.
    Decided July 2, 1992.
    49 St.Rep. 586.
    833 P.2d 1106.
    254 Mont. 1.

      For Defendant and Appellant: John E. Smith and Marcia M. Jacobson, Public Defender’s Office, Missoula.
    For Plaintiff and Respondent: Marc Racicot, Attorney General; Cregg W. Coughlin, Assistant Attorney General, Helena; Robert L. Deschamps, III, County Attorney; Robert Zimmerman, Deputy County Attorney, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

The defendant, David Forest Bower, appeals his conviction of aggravated assault following a nonjury trial in the District Court of the Fourth Judicial District, Missoula County. We affirm.

The issues on appeal are:

1. Did the District Court commit reversible error when it admitted evidence concerning the defendant’s character during the State’s case-in-chief?

2. Is there sufficient evidence in the record to support the defendant’s conviction of aggravated assault?

On the evening of July 20, 1990, the defendant went to Connie’s Lounge in Missoula, Montana where he encountered his ex-girlfriend, Holly Torgerson, and her boyfriend, Mark Moore. Torgerson is the mother of the defendant’s son. Moore testified that on three occasions the defendant approached him and Torgerson and loudly made remarks maligning Torgerson’s reputation. After the third occasion he approached the defendant to ask him to stop the verbal harassment. Moore testified that, before he could say anything to the defendant, the defendant struck him in the head with a bar glass. The blow and resulting struggle left several lacerations on Moore’s forehead and right cheek.

Bar employees separated the defendant and Moore and moved them outside the bar. Missoula police officers arrived and transported Moore to the hospital. Moore testified that he was at the hospital for three or four hours during which time he received 57 sutures to close his facial lacerations.

Tracy Reinke was in Connie’s Lounge during the time of the altercation between the defendant and Moore. She testified that she heard an argument start as the defendant walked up to Moore. She stated that later in the evening she was standing next to and talking with the defendant when he threw a punch at Moore “[a]nd the next thing I knew he [Moore] got sliced.”

The defendant testified that Moore and Torgerson were attempting to fight with him because of a continuing custody battle over his son and a pending assault charge which he made against Torgerson. He claimed that while he was in the bar he tried to avoid Moore and Torgerson as much as possible and that he was concerned for his safety. He testified that when Moore approached, he thought it was to fight so he “reached out and stopped him” and told him to stay away. Moore then hit him in the lip and head. He then defended himself, striking Moore. The defendant claimed that he was unaware that he had a bar glass in his hand when he struck Moore because he was concentrating on defending himself.

Reinke testified in rebuttal to the defendant’s testimony that approximately one month after the incident at Connie’s Lounge, the defendant approached her on the street and inquired if she was going to testify at trial. She claimed that when she told him that she was going to testify, he advised her not to say anything. She testified that the defendant threatened her by stating, “I know where your kids go to school and where you five.”

Moore testified that in August or September 1990 he was driving down a Missoula street when he saw the defendant standing at the street comer. He claimed that the defendant threatened to hit him again with a glass.

Darla Veltkamp, who was also present at Connie’s Lounge on the night of the altercation, told the investigating police officer that Moore threw the first punch. She testified at trial, however, that she did not see the altercation at all and had lied to the officer because she was intimidated by the defendant, who was standing nearby when she gave her original statement. She testified that, before the altercation, the defendant had offered to give her ten dollars and buy her a drink if she would “punch out” Torgerson. Veltkamp further testified that the defendant approached her at a later time and told her to tell authorities that he did not throw the first punch so he could “get off the charges.”

The defendant denied that he threatened Moore in August or September 1990. He testified that Moore drove up to him on the street and said, “You ain’t going to get away with threatening me any more.” He claimed that he did not know what Moore’s statement meant because he had not said a word to the defendant since their altercation. The defendant also claimed that it was Veltkamp who offered to “punch out” Torgerson for ten dollars and a drink and that he rejected her offer.

The defendant was charged by an amended information with aggravated assault in violation of § 45-5-202, MCA. A nonjury trial was held on April 1, 1991. At the conclusion of the State’s case-in-chief, the District Court denied the defendant’s motion for a directed verdict of acquittal. The court took the matter under advisement at the conclusion of the trial and thereafter, on April 5,1991, found the defendant guilty of aggravated assault. The defendant was sentenced to fifteen years in prison and designated a dangerous offender for purposes of parole. This appeal followed.

I.

Did the District Court commit reversible error when it admitted evidence concerning the defendant’s character during the State’s case-in-chief?

During the direct examination of Joe Marshall, who was bartending at Connie’s Lounge on the night of the altercation, the prosecutor inquired of the victim Moore’s reputation in the community for violence or nonviolence. He then asked the same question about the defendant’s reputation. Over objection, Marshall was permitted to answer, “I’ve known him [the defendant] to be in one or two scuffles before.”

The defendant asserts that the District Court’s admission of evidence concerning his reputation or character during the State’s case-in-chief was reversible error. He argues that under Rule 404(a)(1), M.R.Evid., the prosection can offer character evidence only in rebuttal to an accused’s offer of character evidence, citing State v. Gommenginger (1990), 242 Mont. 265, 790 P.2d 455. He claims that he did not present such character evidence.

The State concedes that the District Court’s admission of the evidence was error. It argues, however, that the response elicited from Marshall was not prejudicial to the defendant and, thus, the court’s error was harmless.

An error by the trial court will be deemed harmless “unless the record shows that the error was prejudicial.” Section 46-20-701(1), MCA. “The test of prejudicial error requiring reversal is whether there is a reasonable possibility the inadmissible evidence might have contributed to the verdict.” Brodniak v. State (1989), 239 Mont. 110, 114, 779 P.2d 71, 73 (citations omitted). When assessing the prejudicial effect of an error, we examine the totality of the circumstances in which the error occurred. Brodniak, 239 Mont. at 115, 779 P.2d at 74. In addition, when the error involves inadmissible evidence, we will not evaluate the evidence in isolation; to do so would risk magnifying the prejudicial effect of the error beyond its actual impact on the verdict. Brodniak, 239 Mont. at 115, 779 P.2d at 74.

After a careful review of the record, we are not convinced that Marshall’s testimony was prejudicial to the defendant. The limited reference to one or two prior scuffles did not indicate that the defendant had a propensity or reputation for violence. Marshall did not state whether the prior scuffles were in or out of the barroom setting. Nor did he indicate whether the defendant instigated those scuffles. Given the substantial, if not overwhelming, evidence in the record supporting the defendant’s conviction, we conclude that there is no reasonable possibility that Marshall’s testimony contributed to the defendant’s conviction. Accordingly, we hold that the error on the part of the District Court in admitting the testimony was harmless.

II.

Is there sufficient evidence in the record to support the defendant’s conviction of aggravated assault?

The defendant contends that the District Court erred when it denied his motion for a directed verdict of acquittal at the conclusion of the State’s case-in-chief and when it found him guilty at the conclusion of trial. He argues that the evidence presented was not sufficient to establish that he committed the offense of aggravated assault.

The standard of review of the sufficiency of the evidence is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Riley (Mont. 1992), [252 Mont. 469,] 830 P.2d 549, 49 St.Rep. 408. This standard of review is the same whether reviewing the trial court’s refusal to grant the defendant’s motion for a directed verdict of acquittal or the verdict of guilty. See State v. Downing (1989), 240 Mont. 215, 783 P.2d 412; State v. Miller (1988), 231 Mont. 497, 757 P.2d 1275.

We note that in State v. Cope (1991), 250 Mont. 387, 819 P.2d 1280, we adopted a “clearly erroneous” standard of review for judge-made findings of fact in criminal cases. Cope involved our review of a district court’s findings of fact relating to evidence presented at a suppression hearing as well as evidence presented at a bench trial with respect to the substantive elements of the criminal offense. We applied the “clearly erroneous” standard to the court’s findings in both situations, stating that “[w]e see no reason to maintain a different standard of review in criminal cases than we apply in civil cases, as long as we continue to require the State to prove the substantive elements of the criminal offense beyond a reasonable doubt at trial on the merits.” Cope, 250 Mont. at 396, 819 P.2d at 1286.

Subsequent to Cope, we further developed the clearly erroneous standard of review by adopting a three-part test to be applied in reviewing judge-made findings of fact:

First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence. [Citations omitted.] Third, if substantial evidence exists and the effect of the evidence has not been misapprehended the Court may still find that “[A] finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.” [Citation omitted.]

Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. In light of the impropriety of applying the second and third prongs of the DeSaye test to findings of fact regarding a defendant’s guilt in a criminal case, we conclude that it is necessary to overrule that portion of Cope which holds that the “clearly erroneous” standard is to be applied to judge-made findings of fact on the substantive elements of the criminal offense. Where sufficiency of the evidence or elements of the offense issues are presented on appeal, our standard of review, as stated above, will be whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We will continue to use the “clearly erroneous” standard of review for judge-made findings of fact on other issues in criminal proceedings pursuant to Cope.

The defendant first argues that because no testifying witness actually saw who threw the first punch, “it was impossible for the State to prove assault beyond a reasonable doubt in the face of Defendant’s claim of self defense.” We disagree.

Moore testified that when he approached the defendant to ask him to stop the verbal harassment, the defendant struck him in the head with the bar glass. He denied that he threw the first punch and alleged that the defendant had instigated the physical altercation. Although it is unclear from the record whether Reinke witnessed the altercation from its beginning, she did testify that she was standing next to and talking with the defendant when “the next thing [she] knew [Moore] got sliced.” The fact that the defendant’s testimony conflicted with that of the State’s witnesses does not, by itself, render the evidence insufficient to support his conviction. The weight of the evidence and the credibility of the witnesses are exclusively within the province of the trier of fact; when the evidence conflicts, the trier of fact determines which shall prevail. State v. Whitcher (1991), 248 Mont. 183, 188, 810 P.2d 751, 754.

In State v. Lozeau (1982), 200 Mont. 261, 650 P.2d 789, this Court rejected a similar argument that the evidence was insufficient because there were no eyewitnesses who saw the defendant stab the victim. We concluded that the defendant’s argument that his conviction was based on speculation, conjecture or probability was without merit, stating:

Section 26-1-501, MCA, permits the [trier of fact] to make such inferences based on the facts proved. “The [trier of fact] is not bound to blindly accept defendant’s version of the facts. It is free to pick and choose the evidence it wishes to believe.” State v. Sorenson (1980), Mont., 619 P.2d 1185, 1194, 37 St.Rep. 1834, 1845.

Lozeau, 200 Mont. at 265, 650 P.2d at 791.

Similarly, in State v. Reiner (1978), 179 Mont. 239, 254, 587 P.2d 950, 959, we held that “[t]he mere fact that defendant testified to a self-defense claim does not entitle him to an acquittal.” We stated that where the evidence on a self-defense claim is conflicting, it is the function of the trier of fact to weigh the testimony and decide whether the defendant acted with the belief that the use of force was necessary and, if so, whether such belief was reasonable. Reiner, 179 Mont. at 254, 587 P.2d at 958-59.

Here, the District Court, as the trier of fact, weighed the evidence, assessed the credibility of the witnesses and found that the State’s version of the incident was more credible than the defendant’s. Such a finding is supported by the evidence. Given the testimony of the State’s witnesses regarding the incident and the defendant’s subsequent threats related to the incident, the District Court reasonably could infer that the defendant instigated the physical altercation and was not acting in self-defense.

The defendant next argues that the evidence was not sufficient to establish aggravated assault because the State did not prove beyond a reasonable doubt that he possessed the necessary mental state for the offense. A person commits the offense of aggravated assault if that person purposely or knowingly causes serious bodily injury to another person. Section 45-5-202(1), MCA. The defendant maintains that in order for the District Court to find that he possessed the necessary mental state for aggravated assault, the State had to prove that he intended to cause cuts to Moore’s face with the bar glass. The defendant’s argument is misplaced.

In order to possess the necessary mental state for aggravated assault, the defendant must have acted purposely or knowingly. “Purposely” is defined in § 45-2-101(58), MCA, which provides in part:

[A] person acts purposely with respect to a result or to conduct described by a statute defining an offense if it is his conscious object to engage in that conduct or to cause that result. [Emphasis added.]

“Knowingly” is defined in § 45-2-101(33), MCA, which provides in part:

[A] person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware of his conduct or that the circumstance exists. A person acts knowingly with respect to the result of conduct described by a statute defining an offense when he is aware that it is highly probable that such result will be caused by his conduct. [Emphasis added.]

The record contains substantial evidence from which the District Court could infer that the defendant acted both purposely and knowingly. In addition to the testimony of the State’s witnesses, the defendant admitted that he voluntarily and intentionally struck Moore. The court, as the trier of fact, chose not to believe the defendant’s testimony that he struck Moore in self-defense. Even if the defendant did not intend to cut Moore, it cannot reasonably be argued that he was not aware of the high probability that striking Moore in the face with the bar glass would cause facial lacerations.

Finally, the defendant argues that the evidence was not sufficient to establish that Moore suffered serious bodily injury. “Serious bodily injury” is defined as “bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ.” Section 45-2-101(59), MCA. Whether Moore’s injury created a substantial risk of death is not at issue in this case. The defendant argues that, because the State did not present expert medical testimony, it was impossible for the District Court to find beyond a reasonable doubt that Moore’s injury was a serious permanent disfigurement. We disagree.

We previously have stated that a nonexpert witness is competent to testify as to his or her past or present condition. Cain v. Stevenson (1985), 218 Mont. 101, 105, 706 P.2d 128, 131. Further, expert medical testimony is not necessary to prove the permanency of an injury where the permanency is undisputed and apparent from the nature of the injury itself. Cain, 218 Mont. at 105, 706 P.2d at 131.

In our view, it is clear that Moore suffered serious permanent disfigurement. “The term ‘disfigurement’ connotes, among other things, deformity, defacement, marring and/or damage to one’s attractiveness.” State v. Goodwin (1984), 208 Mont. 522, 529, 679 P.2d 231, 235. Moore testified to the extensive scarring on his face and that his scars were permanent. He also testified that at the time of trial, over eight months after the altercation, he was still experiencing numbness in his right cheek where one of the lacerations occurred. Moore’s testimony was uncontroverted at trial.

The State’s failure to present expert medical testimony was not fatal to establishing serious bodily injury 'under the circumstances of this case. The District Court, based upon the nature of Moore’s injury and his uncontroverted testimony, could find without the aid of expert medical testimony that Moore suffered serious bodily injury. We hold that, based on the evidence presented at trial, any rational trier of fact could have found the defendant guilty of the offense of aggravated assault beyond a reasonable doubt.

Affirmed.

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


text:
    In the Matter of the ADJUDICATION of the EXISTING WATER RIGHTS to the use of all THE WATER, both SURFACE AND UNDERGROUND within the CLARK FORK RIVER DRAINAGE AREA above the BLACKFOOT RIVER, including all Tributaries of the CLARK FORK RIVER above the BLACKFOOT RIVER in Deer Lodge, Granite, Lewis & Clark, Missoula, Powell and Silver Bow Counties, Montana.
    No. 92-092.
    Submitted on briefs May 21, 1992.
    Decided July 2, 1992.
    49 St.Rep. 591.
    833 P.2d 1120.
    254 Mont. 11.

      For Appellant: M.K. Daniels, Attorney, Deer Lodge.
    For Respondent: David L. Pengelly, Knight, Maclay & Masar, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

This appeal arises from an order of the Water Court. The Water Court found that co-appellant City of Deer Lodge, predecessor in interest to co-appellants Evered and Ramona McQueary, abandoned through nonuse two water right claims in Cottonwood Creek, a tributary of the Clark Fork River. The Water Court ordered that the two water right claims shall not appear in the Preliminary or Final Decrees of the Clark Fork River Basin above the Blackfoot River (Basin 76G). We affirm.

The issue on appeal is whether the Water Court erred in finding that Deer Lodge abandoned the two water rights in Cottonwood Creek.

Pursuant to the statewide adjudication of existing water rights, Deer Lodge filed two claims for municipal use of water out of Cottonwood Creek. The claims are identified as 76G-W-010397-00 and 76G-W-010398-00 and were obtained by Deer Lodge from a private water company in 1934. Upon the issuance of a Temporary Preliminary Decree for the Clark Fork River Basin above the Blackfoot River (Basin 76G) in 1985, respondents William J. Applegate and Sharon Applegate filed objections to both claims on the basis that the claims had been abandoned by Deer Lodge.

In 1989, before the Water Court ruled on the Applegates’ objections, Deer Lodge sold its interest in the two water rights to Evered and Ramona McQueary and filed a water right transfer certificate relating to those rights with the Montana Department of Natural Resources and Conservation. The Department acknowledged the transfers on March 21, 1990, subject to the ongoing adjudication of the water rights.

A Water Master conducted a hearing on the Applegates’ objections to the claims on October 3, 1990. At the hearing, the Applegates presented evidence that Deer Lodge had not used either of the two water rights for any municipal purposes, the beneficial use for which the rights were claimed, since the late 1940s. The period of nonuse was shown to be in excess of twenty-three years as of July 1, 1973. Deer Lodge presented testimony through the Deer Lodge City Clerk that the two water rights had been carried as assets on the city books during the time period between the late 1940s and July 1,1973. The Clerk also testified that the diversion and conveyance works formerly associated with the water rights were no longer carried as assets on the city books.

Deer Lodge also offered into evidence three engineering reports relating, in part, to feasibility studies of the city’s use of the Cottonwood Creek water rights. Each report was prepared after July 1, 1973. The reports were admitted for the limited purpose of demonstrating Deer Lodge’s lack of intent to abandon the water rights after July 1, 1973.

Following the hearing, Deer Lodge requested that the record be reopened to allow it to introduce additional evidence. It sought to introduce supplemental exhibits identified as C-18, C-19 and C-20. Each exhibit related to a city-owned right-of-way easement across the Applegates’ property for a water pipeline. The Water Master denied Deer Lodge’s request to supplement the record and, thereafter, entered his report on November 30, 1990.

The Water Master found that the relevant time frame for determining whether Deer Lodge abandoned the two water rights was the period prior to July 1, 1973; thus, the post-1973 engineering reports were found to be unpersuasive as evidence of a pre- July 1, 1973 lack of intent to abandon the water rights. He further found that Deer Lodge had abandoned both claims through nonuse over a period of time in excess of twenty-three years. Deer Lodge objected to the Water Master’s report and requested a hearing before the Water Court.

The Water Court heard oral argument on Deer Lodge’s objections on April 12, 1991. Following the hearing, the Water Court issued its findings of fact, conclusions of law and decree. It denied Deer Lodge’s request to supplement the record with exhibits C-18, C-19 and C-20 and adopted the Water Master’s findings regarding Deer Lodge’s abandonment of the two water rights. The Water Court ordered that water right claims 76G-W-010397-00 and 76G-W-010398-00 shall not appear on the Preliminary and Final Decrees of the Clark Fork River Basin above the Blackfoot River (Basin 76G). This appeal followed.

Did the Water Court err in finding that Deer Lodge abandoned the two water rights in Cottonwood Creek?

The abandonment of a water right is a question of fact. Section 89-802, RCM (applicable here, repealed in 1973); 79 Ranch, Inc. v. Pitsch (1983), 204 Mont. 426, 431, 666 P.2d 215, 217. The standard of review of judge-made findings of fact is whether the findings are clearly erroneous. Dennis v. Tomahawk Services, Inc. (1989), 235 Mont. 378, 767 P.2d 346. This Court recently adopted a three-part test to determine if a finding is clearly erroneous.

First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence we will determine if the trial court has misapprehended the effect of evidence. [Citations omitted.] Third, if substantial evidence exists and the effect of the evidence has not been misapprehended, the Court may still find that “[A] finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.” [Citation omitted.]

Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

It is a fundamental principle in Montana that appropriation of water is based on its beneficial use; when the owner of the water right abandons or ceases to use the water for its beneficial use, the right ceases. 79 Ranch, 204 Mont. at 431, 666 P.2d at 217. This controlling policy of beneficial use was explained long ago in Power v. Switzer (1898), 21 Mont. 523, 529, 55 P. 32, 35, as quoted by this Court in 79 Ranch:

It has been a mistaken idea in the minds of many, not familiar with the controlling principles applicable to the use of water in arid sections, that he who has diverted, or “claimed” and filed a claim of, water for any number of given inches, has thereby acquired a valid right, good as against all subsequent persons. But, as the settlement of the country has advanced, the great value of the use of water has become more and more apparent. Legislation and judicial exposition have, accordingly, proceeded with increasing caution to restrict appropriations to spheres of usefulness and beneficial purposes. As a result, the law, crystallized in statutory form, is that an appropriation of a right to the use of running water flowing in the creeks must be for some useful or beneficial purpose, and when the appropriator, or his successor in interest, abandons and ceases to use the water for such purpose, the right ceases. [Citation omitted.]

Two elements are necessary for the abandonment of a water right: nonuse of the water associated with the water right and intent to abandon the water right. Shammel v. Vogl (1964), 144 Mont. 354, 396 P.2d 103; Thomas v. Ball (1923), 66 Mont. 161, 213 P. 597. We stated in 79 Ranch that evidence of a long period of continuous nonuse of a water right raises a rebuttable presumption of an intent to abandon that right and shifts the burden of proof to the nonuser to explain the reasons for nonuse. 79 Ranch, 204 Mont. at 432-33, 666 P.2d at 218. To rebut the presumption of abandonment, there must be established some fact or condition excusing the long period of nonuse, not mere expressions of hope or desire reflecting a “gleam-in-the-eye philosophy” regarding future use of the water. 79 Ranch, 204 Mont. at 433-34, 666 P.2d at 218-19 (citing authorities).

The case at bar presents a factual situation similar to that in 79 Ranch. The Applegates presented uncontradicted evidence that Deer Lodge had not used the two water rights since it ceased using Cottonwood Creek water for municipal purposes in the late 1940s. This showing of twenty-three plus years of continuous nonuse raised a rebuttable presumption that Deer Lodge had abandoned the water rights.

The burden of proof then shifted to Deer Lodge to rebut the presumption of abandonment. The only relevant evidence offered by Deer Lodge was that it continued to carry the water rights as assets on its books during the period of nonuse. It presented no evidence that it had made any efforts to make use of the water rights between the late 1940s and July 1,1973. It presented no evidence that it had maintained its diversion and conveyance facilities; in fact, it indicated that those facilities were no longer carried as assets on its books.

Deer Lodge’s evidence that it carried the water rights as assets on its books is not sufficient to rebut the presumption of abandonment. It does not meet the requirement in 79 Ranch of explaining the reasons or excuse for long periods of nonuse. Indeed, Deer Lodge’s evidence, by itself, reflects nothing more than a “gleam-in-the-eye philosophy” regarding future use of the water which, as stated in 79 Ranch, “is not consistent with the protection and preservation of existing water rights.” 79 Ranch, 204 Mont. at 434, 666 P.2d at 219. To find otherwise would be inconsistent with the “[flundamental policy that a water right does not mean possession of a quantity of water, but its beneficial use.” 79 Ranch, 204 Mont. at 433, 666 P.2d at 218 (emphasis in original).

Deer Lodge suggests that it was caught by surprise and was “blindsided” by the Water Court’s finding that the pre-July 1, 1973 time frame was controlling in determining the abandonment question and the court’s corresponding finding that the post-1973 engineering reports were not persuasive in showing a lack of intent to abandon. It states that it assumed that its burden was to show a lack of intent to abandon the water rights by post-July 1,1973 evidence and, thus, it “[m]ade no effort to obtain evidence that may have been available during the period from the late 1940’s to July 1, 1973.”

We find no error on the part of the Water Court in refusing to consider Deer Lodge’s post-1973 engineering reports as persuasive evidence. The Montana Water Use Act was enacted during the 1973 legislative session and became effective on July 1, 1973. The Act defined an “existing right” as “[a] right to the use of water which would be protected under the law prior to July 1, 1973.” Section 89-867(4), RCM (now § 85-2-102(9), MCA). In 1979, upon passage of the general statewide Water Adjudication Act, the legislature directed the adjudication of all “existing” water rights and specifically identified those rights as those in existence prior to July 1, 1973. Section 85-2-212, MCA. Thus, the clear purpose of statewide adjudication is to adjudicate water rights as they existed on July 1,1973. Given this background, the Water Court correctly determined that only the pre-July 1, 1973 time frame was relevant on the abandonment question and evidence relating to intent to abandon which reflected Deer Lodge’s post-1973 actions was not persuasive.

Deer Lodge also asserts that the Water Court should have considered its post-hearing evidence regarding its continued protection of an easement for a pipeline across the Applegates’ property as evidence of a lack of intent to abandon the water rights. We conclude that the Water Court in this case correctly refused to consider this evidence. Montana law has long recognized that water rights and easements or ditch rights are separate and distinct rights. McDonnell v. Huffine (1912), 44 Mont. 411, 422-23, 120 P. 792, 795; Missoula Light & Water Co. v. Hughes (1938), 106 Mont. 355, 365, 77 P.2d 1041, 1046; Mildenberger v. Galbraith (1991), 249 Mont. 161, 166, 815 P.2d 130, 134. Because water rights and easements are separate and distinct legal rights, one can be abandoned without abandoning the other. McDonnell, 44 Mont. at 423, 120 P. at 795. While in other cases such evidence maybe admissible, evidence of Deer Lodge’s continued protection of its easement was irrelevant to the issue of whether it abandoned its water rights.

We conclude that the Water Court’s finding that Deer Lodge abandoned its claims to the two water rights in Cottonwood Creek is supported by substantial evidence. Further, in accordance with our three-part test in Interstate Prod. Credit Ass’n., we determine that the court did not misapprehend the effect of the evidence. Finally, after a review of the record, we are not left with a definite and firm conviction that a mistake has been committed. Accordingly, we hold that the Water Court’s finding that Deer Lodge abandoned the water rights is not clearly erroneous and, thus, we will not disturb the court’s ruling.

Affirmed.

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


author: JUSTICE HARRISON

text:
    LEROY G. MEIDINGER, Claimant, Respondent and Cross-Appellant, v. WESTERN ENERGY COMPANY, Defendant and Appellant.
    No. 91-488.
    Submitted on briefs May 28, 1992.
    Decided July 9, 1992.
    49 St.Rep. 601.
    834 P.2d 1382.
    254 Mont. 18.
    For Appellant: Robert T. O’Leary, Butte.
    For Respondent: James E. Gardner, Billings.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from a July 12, 1991 judgment of the Workers’ Compensation Court reinstating Leroy G. Meidinger to temporary total disability benefits from the date of termination and continuing until maximum healing is reached, past due benefits are to be paid in a lump sum. In addition, Meidinger is entitled to ongoing medical care including physical therapy and massage as well as psychological therapy. The Workers’ Compensation Court found that the claimant, Meidinger, is not entitled to a twenty percent penalty, but that he was entitled to reasonable costs and attorney's fees as provided by § 39-71-611, MCA. To this judgment Meidinger cross-appealed. We affirm.

The following issues are presented for review:

1. Whether Western Energy Company properly terminated Meidinger’s temporary total disability benefits in January 1989 and, accordingly, he is not entitled to restoration of benefits as of that date nor costs and attorney’s fees.

2. Whether the Workers’ Compensation Court erred when it determined that Meidinger was entitled to reinstatement of temporary total disability benefits, physical and psychological therapy and massage, costs and attorney’s fees.

Meidinger is a thirty-four-year-old employee of Western Energy Company (Western) whose work history includes truck driving, shovel oiler and construction. In 1983, he began work as a field mechanic for Long Construction at the Colstrip power plant site. In 1985, Western took over the tasks performed by Long Construction and claimant continued his employment as a shop mechanic for the next two years for Western. Prior to June 11, 1986, Meidinger took and passed a physical examination.

On June 11,1986, Meidinger and two co-workers were assigned to rebuild an oar crusher that had recently been repaired. Meidinger was injured while attempting to cross from one side of the crusher bin to the other while stepping on an iron bar which bisected the rectangular bin. His foot slipped and he fell, striking his leg on the cross-bar while grabbing the side of the bin with his hands. Meidinger experienced immediate pain in his left leg and low back. He timely reported the injury to Western and claims for compensation and medical benefits were completed and filed.

For the next two and one-half years, Meidinger received medical benefits relating to alleged injuries he sustained from the above-described accident. Meidinger began medical treatment with chiropractor Dr. Roger Dahl who saw him three days after the accident. Over the course of the two and one-half years after the accident, and in addition to Dr. Dahl, Meidinger was treated by three chiropractors, three orthopedic surgeons, one neurosurgeon, six neurologists, one psychiatrist, and one physical therapist. Meidinger has undergone diagnostic procedures including three CT scans, two myleograms, three MRIs, multiple plain x-rays, and one EMG study; all of which were negative for organic, objective findings to verify any back or disc problems.

Following the accident, Meidinger received temporary total disability benefits for the week following his injury. He worked for the next six months until sometime in December 1986, when he discontinued work complaining of low back and leg problems; he again began receiving temporary total disability benefits until January 25, 1989.

In a report to Western dated December 23, 1988, Drs. Shaw and Williams, reported that they could find no objective evidence of structural disease of Meidinger’s spine, could not find evidence of damage to the nerves, nor could they find any neurological abnormalities. Dr. Shaw’s report advised Western that he could find no objective medical explanation for Meidinger’s pain, that any medical conditions attributed to the accident of June 11 were at that time stable and that Meidinger had reached maximum healing. Dr. Shaw imposed no restriction on Meidinger’s activities and could find no reason why he could not return to full normal activity. Based upon the examinations of Drs. Shaw and Williams, Western, as required by law, gave Meidinger a fourteen-day notice of termination of benefits and advised him to return to his mechanic’s job at the Rosebud Mine on January 23, 1989. Meidinger failed to return to work thereby terminating his seniority with Western in accordance with the collective bargaining agreement under which he was employed.

Meidinger continued to be treated by Dr. Nelson, a neurologist in Billings, after the termination of his bi-weekly compensation benefits. Western continued to pay medical benefits for subsequent examinations and treatment as well as for any prescription drug charges Meidinger incurred.

Western argues that it justifiably terminated Meidinger’s benefits on the basis that there was no medical evidence introduced at the hearings by either Meidinger or Western that disclosed any objective medical reason for Meidinger’s complaints, including why he favored his left leg while standing or walking. It is Western’s contention that it retained two acknowledged Billings experts, Drs. Williams and Shaw, to conduct independent medical examinations and additional tests in order to determine if there were any medical reasons for Meidinger’s complaints; the doctors found no reason why Meidinger could not return to work.

I.

That Meidinger failed to prove by a preponderance of the evidence that any physical or psychological injury he now suffers is caused by his occupational injury on June 11, 1986.

Western objects to the Workers’ Compensation Court’s finding that Meidinger suffers from a mixture of psychological and physical problems related to his injury and that he is entitled to the restoration of benefits from January 1989, the date of termination, until maximum healing is reached. Western cites Hutchinson v. Pierce Packing Co. (1985), 219 Mont. 18, 710 P.2d 64; Frost v. Anaconda Co. (1985), 216 Mont. 387, 701 P.2d 987; Ricks v. Testlow Consolidated (1973), 162 Mont. 469, 512 P.2d 1304; Currey v. 10 Minute Lube (1987), 226 Mont. 445, 736 P.2d 113. See also Dumont v. Wickens Bros. Const. Co. (1979), 183 Mont. 190, 598 P.2d 1099.

We note that in view of the fact that Western relied on Dr. Shaw’s report of Meidinger’s condition, we concur with the Workers’ Compensation Judge’s finding that the report does not justify termination of benefits. In his December 1988 report to Western, Dr. Shaw stated in part:

I believe that any medical conditions directly attributable to [Meidinger’s] accident of June 11,1986 are at this time stable and have reached a maximum medical benefit. No further medical workup appears indicated. No further medical treatment appears warranted. I would anticipate no need for any surgical interventions now or in the foreseeable future. I would not anticipate any conditions directly related to that accident would progress or deteriorate in the foreseeable future. Strictly as it relates to conditions directly attributable to that accident, I would assess no impairment rating in accordance with the American Medical Association. I would impose no restrictions on his activity. I can find no medical reason which would prevent him from safely returning to full normal activity.
I would note that this man may have a psychologic condition which warrants evaluation and treatment. I cannot clearly attribute such a psychologic condition to his accident of June 11, 1986.

In addition we note that two doctors reviewed the record of Meidinger’s employability as of January 1989. Dr. Dahl, a chiropractor and the first professional who treated Meidinger, and Dr. Cooney, a neurologist, disapproved of Meidinger’s returning to his previously-held job with Western. Dr. Cooney in his report of September 1989 stated:

I believe... [Meidinger] is experiencing and has been experiencing significant pain in the low back and left leg, which resulted in his abnormal gait and posture. In view of the longstanding nature of that problem, he subsequently developed significant flexion contractures of the left lower extremity which preclude him [from] standing or walking in a normal fashion. Further, the abnormalities of stance and gait have likely aggravated his low back pain. This appears to be a vicious cycle. I do not expect to see rapid improvement in these symptoms even with appropriate and effective physical therapy for the low back and left lower extremity. I suspect that he will require at least 6 months of intensive physical therapy before significant improvement in these conditions occur. I would emphasize that Mr. Meidinger has the potential to be returned to his preinjury state. I think that he is quite frustrated at this point, in view of his pain and physical limitations. I have attempted to reassure him that with appropriate therapy, that I would expect these conditions to improve substantially. He appears to be a very candid and credible man. I do not believe that he is exaggerating his symptoms, or their effect on his life.

The Workers’ Compensation Court in Conclusions of Law Numbers 2, 3, and 4 noted:

2. Claimant is presently temporarily totally disabled and entitled to reinstatement of temporary total disability benefits from the date of termination and continuing until maximum hearing is reached.
Section 39-71-116(19), MCA, as it read at the time of claimant’s injury was as follows:
(19) “Temporary total disability” means a condition resulting from an injury as defined in this chapter that results in total loss of wages and exists until the injured worker is as far restored as the permanent character of the injuries will permit. Disability shall be supported by a preponderance of medical evidence.
Given the reports of Dr. Cooney and Dr. Nelson as well as the physical therapist, it is clear to the Court that claimant’s physical condition as it relates to his low back and leg is treatable with physical therapy and massage.
Dr. Shaw, who provided what amounted to an unequivocal release based on claimant’s physical exam, nonetheless noted the ongoing psychological component of his condition and did not question its authenticity or relationship to the June 1986 injury.
In our review of this record, the Court is convinced that much of claimant’s physical condition relative to his muscle contraction and pain in the leg is psychological in origin. However, the claimant’s psychological condition is equally compensable as related to the injury. (See Schumacher v. Employers Mutual Liability Ins. Co., 175 Mont. 411, 574 P.2d 987 (1977).) The conversion reaction recognized by Doctors Lovitt, See, Robinson, Shaw, Nelson, and Newman is compensable as it is related to the physical injury of June 11, 1986. Because of that psychological response, claimant has developed a serious physical problem with his leg and low back.
What is significant as it pertains to temporary total disability benefits is that the psychiatrist Dr. Newman believes the psychological condition is treatable and Dr. Cooney and others believe the physical component is equally treatable by therapy and massage. Indeed, it appears that according to Dr. Cooney, six months of therapy may be sufficient. When the defendant terminated benefits in January 1989, it relied on the report of Dr. Shaw and others. However, we conclude that the mixture of the psychological component and the physical problems manifested in response, are not at maximum healing and are compensable.
The claimant must cooperate and participate in both the physical therapy program prescribed as well as treatment for his psychological disorder. Any failure to do so may result in a suspension of benefits per section 39-71-605, MCA. [Emphasis in original.]
3. The medical benefits are to continue and shall include the payment of the psychological and physical therapy treatments discussed herein.
4. The claimant is not entitled to a twenty percent penalty per section 39-71-2907, MCA.
Given the disparity of accident descriptions, the multiple medical exams and reports which all proved essentially negative, we do not believe a penalty is warranted [under § 39-71-2907, MCA]....
The question of unreasonableness is considered on a case by case basis. Up until Dr. Cooney’s report, the medical evidence preponderated in favor of a conclusion that claimant had minimal or no objective evidence to preclude him from working. As such, a genuine dispute existed which the Court believes does not warrant a penalty. Wight v. [Hughes Livestock Co.] [194 Mont. 109], 634 P.2d 1189... (1981).

The Workers’ Compensation Court is affirmed.

JUSTICES TRIEWEILER, HUNT, McDONOUGH and WEBER concur.


text:
    MICHAEL H. TEHLE, Claimant and Respondent, v. ALPINE PLUMBING, Employer, and STATE COMPENSATION MUTUAL INSURANCE FUND, Defendant and Appellant.
    No. 92-050.
    Submitted on briefs June 4, 1992.
    Decided July 9, 1992.
    49 St.Rep. 608.
    835 P.2d 1.
    254 Mont. 25.

      For Appellant: Charles G. Adams, State Compensation Mutual Insurance Fund, Helena.
    For Respondent: Patrick R. Sheehy, Halverson, Sheehy & Plath, P.C., Billings.
   JUSTICE HARRISON

delivered the Opinion of the Court.

State Compensation Mutual Insurance Fund (State Fund) appeals from an order and judgment of the Montana Workers’ Compensation Court. The court held that Michael Tehle (Mike) suffered a total loss of wages due to work-related injuries, despite the fact that his plumbing business actually increased gross income receipts. The court determined that Mike was entitled to temporary total disability benefits. We affirm.

We review the following dispositive issue:

Whether the Workers’ Compensation Court erred in determining that Mike suffered a total loss of wages.

Sometime in 1985, Mike and his wife Cheryl, opened a plumbing business, Alpine Plumbing and Heating, in Billings, Montana. Mike performed all the physical plumbing work himself, while Cheryl handled all the financial aspects of the business including clerical and scheduling duties. In approximately October of 1986, Mike obtained Workers’ Compensation insurance coverage from State Fund. The policy covered Mike as an individual owner doing plumbing work.

On July 30, 1987, Mike suffered severe injuries when a ditch in which he was installing sewer lines collapsed upon him. Mike was buried in dirt almost to the top of his head. While Mike was rescued by his son and a backhoe operator who dug him out of the collapsed ditch, he was crushed by the weight of the dirt. As a result of the severe compression, Mike suffered a basal skull fracture and was treated with steroids which later produced various complications. He received damage to cranial nerves in his face which resulted in his inability to close his right eyelid for a period of two months. He also sustained a hearing loss and suffered a fractured left clavicle, fractured ribs, a dislocated arm, a fractured jaw and related dental problems. Throughout this period State Fund paid Mike temporary total disability benefits. During the period of Mike’s convalescence, his son, father and wife continued to operate Alpine Plumbing and Heating.

After returning to work on March 25, 1988, Mike began to have problems with his hips which resulted from the use of steroids to treat his other injuries. These complications resulted in the complete replacement of Mike’s left hip joint and a core decompression of his right hip. In approximately September of 1988, Mike and Cheryl were forced to hire employee plumbers to keep the business in operation due to Mike’s physical limitations. When not in severe pain and recovering from his injuries and surgeries, Mike contributed minimally to the operation of the plumbing business. He sometimes answered the phone and gave recommendations and directions to his employee plumbers.

Cheryl’s involvement in the business increased and she continued to schedule the plumbing jobs for the recently hired employees and complete all necessary paper work. Mike has not performed any plumbing activities since approximately November 1989. On December 10, 1990, the State Fund discontinued Mike’s Workers’ Compensation benefits due to the fact that Alpine Plumbing and Heating remained profitable and actually increased its income since Mike’s injuries. Mike challenged the discontinuance of his benefits and the Workers’ Compensation Court reinstated Mike’s temporary total disability benefits. State Fund appeals and we affirm.

Two recent cases of this Court have set forth the appropriate standard of review in Workers’ Compensation cases. The Workers’ Compensation Court’s conclusions of law will be upheld if the interpretation of the law is correct. Grenz v. Fire and Casualty of Connecticut (1991), 250 Mont. 373, 378, 820 P.2d 742, 745; citing Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474-475, 803 P.2d 601, 603. The Workers’ Compensation Court’s findings of fact will be upheld if supported by substantial credible evidence. Nelson v. Semitool, Inc. (Mont. 1992), [252 Mont. 386,] 829 P.2d 1, 3, 49 St.Rep. 253, 254.

This case hinges upon the distinction between two important concepts: “wages” and “income from profits.” Mike asserts that due to his injuries he sustained a total loss of wages. While he performs minor duties for the business, he is not involved in any of the physical plumbing activities in which he previously engaged. Further, he has not taken a salary draw from the business since his injuries. Consequently, he has earned no wages and is therefore entitled to continued temporary total disability benefits under § 39-71-701, MCA (1987).

State Fund contends that the profits and subsequent income to Mike from Alpine Plumbing and Heating has increased since Mike’s injuries, therefore, Mike has not suffered a total loss of wages as required by the statutes. We disagree.

Section 39-71-118(2), MCA (1987), provides:

If the employer is a partnership or sole proprietorship, such employer may elect to include as an employee within the provisions of this chapter any member of such partnership or the owner of the sole proprietorship devoting full time to the partnership or proprietorship business ... For premium ratemaking and for the determination of weekly wage for weekly compensation benefits, the insurance carrier shall assume a salary or wage of such electing employee to be not less than $900 a month and not more than 11/2 times the average weekly wage as defined in this chapter.

Pursuant to the aforementioned statute, Mike elected coverage and complied with the requirements of the statute. State Fund processed his application and promised coverage that insured Mike against injury that affected his wages.

We acknowledge that the concepts of wages and income from profits are often used interchangeably but they are not the same, and it is error to use them synonymously. In the case at bar, State Fund made such an error.

A review of the record indicates that the success of Alpine Plumbing and Heating and its subsequent increase in profitability was not attributed to the ongoing efforts of Mike in his capacity as a plumber. In fact, the record illustrates the determination and tenacity of Mike’s wife Cheryl and the rest of his family as they faced and survived the circumstances that befell them. During Mike’s initial infirmity period, Mike’s son and father carried out the physical aspects of the business while Cheryl continued to schedule plumbing jobs and prepare all necessary paperwork. When Mike was further unable to work due to his hip surgeries, Cheryl and Mike decided to hire employee plumbers to carry on their business. This business decision apparently enabled Alpine Plumbing and Heating to not only remain operational, but increase in popularity and success, resulting in increased profits. It is clear that these increased profits have not come as a result of Mike’s involvement in the business post-injury. Therefore, we will not allow State Fund to escape responsibility under the valid contract of insurance which they negotiated with Mike. This Court does not dispute that Mike is now in a better financial position than he was prior to his injury, however, that does not establish grounds on which to deny him coverage under a valid insurance contract.

State Fund attempts to support its position by stating that the income received from the business is currently being derived partly from the Tehles’ initial investment and their reputation for good work. Consequently, Mike is still receiving wages from the business. Again, we cannot agree. Section 39-71-123, MCA (1987), defines wages as:

[T]he gross remuneration paid in money, or in a substitute for money, for services rendered by an employee. Wages include but are not limited to:
(a) commissions, bonuses, and remuneration at the regular hourly rate for overtime work, holidays, vacations, and sickness periods;
(b) board, lodging, rent, or housing if it constitutes a part of the employee’s remuneration and is based on its actual value; and
(c) payments made to an employee on any basis other than time worked, including but not limited to piecework, an incentive plan, or profit-sharing arrangement.

Although the statute does not contain an all-inclusive list of what constitutes wages in Montana, we do not find any similarity with the terms listed therein. Certainly, we do not find that income from profits are contained in the definition of “wages.”

Previously, we addressed the problem of whether the ability to acquire income was equal to the ability to work. In Chatfield v. Industrial Accident Board (1962), 140 Mont. 516, 374 P.2d 226, we answered in the negative. We said:

Finally, it would seem that the board correlates ability to acquire income with ability to work. Any income which the claimant has received from the ranch is a result of his capital investment and not from the sweat of his brow. The fact that claimant was able to “boss” his own ranch does not indicate an ability to compete on the labor market for a similar position elsewhere.

Chatfield, 140 Mont. at 520, 374 P.2d at 228. Chatfield is analogous to the case at bar in that both claimants obtained income from a business they previously operated. The point of both the Chatfield case and the case at bar is not that the individual is able, through alternative business arrangements, to make a profit from their business, but that they can no longer perform the activities which State Fund insured.

After a review of the record in the case at bar, we find that the Workers’ Compensation Court possessed the requisite evidence and testimony to support its findings and conclusions. The Workers’ Compensation Court supported its findings of fact with substantial credible evidence and it made correct conclusions of law. Therefore, we will not overturn the Workers Compensation Court’s ruling. Accordingly, Mike is entitled to temporary total benefits from November 14,1989, until there is a change in his medical status that would require compensation or denial thereof according to relevant Montana statutes.

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