author: JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DONALD DALE KINGERY, Defendant and Appellant.
    No. 89-210.
    Submitted on Briefs Aug. 10, 1989.
    Decided Sept. 14, 1989.
    779 P.2d 495.

      Donald Kingery, Missoula, pro se.
    Marc Racicot, Atty. Gen., Dorothy McCarter, Asst. Atty. Gen., Helena, Robert Deschamps, III, County Atty., Betty Wing, Deputy, Missoula, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Fourth Judicial District, Missoula County, State of Montana. The District Court revoked defendant’s prior suspended sentence and sentenced defendant to ten years in the Montana State Prison at Deer Lodge. Defendant appeals and alleges that he was deprived of his constitutional right to due process. We affirm.

The issues in this case are:

1. Did the State violate defendant’s constitutional rights of due process during arraignment and extradition proceedings?

2. Did the State violate defendant’s constitutional right of due process during probation revocation proceedings?

On October 19, 1987, the defendant, Donald Dale Kingery, entered into a plea bargain agreement. In return for pleading guilty to forgery, the defendant received probation and a ten year suspended sentence subject to certain conditions. Under the conditions the defendant was to check in weekly with a probation officer, make restitution and not be in bars or consume alcohol and not change residence without first obtaining permission. Judgment on the forgery charge was entered against the defendant on January 18, 1988.

The State filed a petition to revoke the suspended sentence on July 12, 1988, citing several violations by the defendant of the terms and conditions of the judgment. That same day a bench warrant issued for the arrest of defendant. The defendant was eventually located and arrested in Clackamas County, Oregon. On October 17, 1988, Oregon sent notice to Missoula District Court that the defendant had been arraigned and refused to waive extradition. The Missoula County Attorney then applied to the Governor to request the defendant’s extradition from Oregon and the Montana Governor’s office issued the request on October 27, 1988.

The defendant was returned to Montana on November 18, 1988, and had his initial appearance in Missoula County District Court on November 22, 1988, at which time counsel was appointed. On December 5, 1988, the defendant denied all allegations in the petition to revoke and a hearing was set. Hearing on the petition was held January 23, 1989, and ultimately the District Court did revoke defendant’s suspended sentence.

Defendant appeals from the judgment revoking the suspended sentence. Mr. Kingery, although having benefit of the counsel of a public defender at all prior stages, has now chosen to proceed pro se.

I.

Did the State violate Kingery’s constitutional rights of due process during arraignment and extradition proceedings?

Defendant asserts that he was deprived of his constitutional rights of due process as a result of the State’s failure to follow procedural guidelines set forth in Montana law and the Federal Rules of Criminal Procedure regarding his arraignment and subsequent extradition. However, the arraignment and extradition proceedings took place in Oregon and therefore are susceptible to Oregon law, not Montana law. The general rule regarding challenge of extradition proceedings is that:

“In interstate extradition proceedings, the prisoner is held under the extradition process only until such time as he reaches the jurisdiction of the demanding state, and is thenceforth held under the process issued out of the courts of that state. Consequently, the regularity of extradition proceedings may be attacked only in the asylum state; after an alleged fugitive has been delivered into the jurisdiction of the demanding state, the proceedings may not be challenged.” (Citations omitted.)

State v. Flint (W.Va. 1983), 301 S.E.2d 765, 772, quoting 31 Am.Jur.2d Extradition § 74 (1967).

Under the Uniform Criminal Extradition Act, codified in Montana at § 46-30-101, MCA, et seq., the remedy for a fugitive arrested in another state who opposes extradition is to apply for a writ of habeas corpus in the asylum state. Section 46-30-217(2), MCA. Not having opposed the extradition proceedings in Oregon, defendant may not now attempt to do so in Montana. See Michigan v. Doran (1978), 439 U.S. 282, 290, 99 S.Ct. 530, 536, 58 L.Ed.2d 521, 528. Additionally, a subsequent conviction is not invalidated by irregularities or improprieties in the extradition proceedings. Brown v. Nutsch (8th Cir. 1980), 619 F.2d 758, 762.

We hold that the defendant’s challenge to extradition proceedings is not properly before this Court and in no way affects the validity of the District Court’s order revoking defendant’s probation.

II.

Did the State violate defendant’s constitutional rights of due process during revocation proceedings?

The basis of defendant’s argument seems to be (1) that he did not have sufficient notice of the charges against him and the purpose of the preliminary hearing, and (2) that erroneous information was employed by the prosecutor and probation officer during the revocation hearing. We will first address defendant’s claim he had insufficient notice of the charges and of the purpose of the preliminary hearing.

This Court previously held that the purpose of the preliminary hearing on a petition to revoke probation is “to determine whether there is probable cause to believe that, the accused committed a probation violation.” State v. Swan (1986), 220 Mont. 162, 166, 713 P.2d 1003, 1006. Additionally, concern for promptness mandates the preliminary hearing. Id.

Montana’s statutory provision for dealing with probation violations is found in §§ 46-23-1012 and -1013, MCA. Section 46-23-1012(1), MCA, provides:

“At any time during probation or suspension of sentence a court may issue a warrant for the arrest of the defendant for violation of any of the conditions of release or a notice to appear to answer a charge of violation. Such notice shall be personally served upon the defendant.” (Emphasis added.)

Only notice to appear, if the State chooses that route, requires personal service. The State in this case, however, chose to issue a warrant for the defendant’s arrest rather than notice to appear. Personal service, therefore, is not necessary.

Section 46-23-1012(2), MCA, further requires notice of probation violations be given when a warrantless arrest of one who breaks probation is made. This was not a warrantless arrest. Oregon authorities arrested defendant pursuant to a bench warrant issued by the State of Montana. Contrary to defendant’s belief, notice of probation violations did not have to be given defendant at this juncture because this arrest was pursuant to a warrant.

Section 46-23-1013, MCA, provides post-arrest procedures. Section 46-23-1013(1), MCA, requires the arrested probationer be brought before the court with jurisdiction over the prisoner “without unnecessary delay for a hearing on the violation charged.” Defendant was arrested on October 13, 1988 and timely arraigned on or before October 17, 1988 in Oregon where he refused to waive extradition. Extradition proceedings were begun immediately. Four days after his arrival in Montana, defendant made his initial appearance. At this initial appearance, defendant received a copy of the petition to revoke his suspended sentence which contained charges of specific probation violations. Any delay defendant suffered as to notice of the specific allegations against him and of the purpose for the preliminary hearing was due to his refusal to waive extradition.

As noted in State v. Oppelt (1979), 184 Mont. 48, 56, 601 P.2d 394, 399, any determination of unnecessary delay depends on the facts of the particular case. In Oppelt, as here, the defendant caused the delay and did not assert his right to hearing without delay. We hold defendant’s claim that he suffered a delay of notice as to the allegations against him, thus depriving him of his right to due process, to be without merit. It should be noted that:

“The revocation hearing is not a criminal trial but a summary hearing to establish a violation of the conditions of the prisoner’s probation. The probationer already stands convicted of a crime no matter what the grounds for the revocation may be, whether it is the commission of another crime or unauthorized travel.”

Petition of Meidinger (1975), 168 Mont. 7, 15, 539 P.2d 1185, 1190. This is not to say that petitioner has no rights at a revocation proceeding, but the hearing is less formal.

In a probation revocation hearing the due process requirements are: a) written notice of the violations; b) disclosure of evidence against the probationer; c) opportunity to be heard in person and to present witnesses and evidence; d) a neutral tribunal; e) a written statement by the factfinder as to the evidence relied on and the reasons for revoking; f) the right to cross-examine witnesses unless the hearing body finds good cause for disallowing confrontation; and g) the right to counsel in some circumstances. State v. Lange (Mont. 1987), [226 Mont. 9,] 733 P.2d 846, 848, 44 St.Rep. 418, 420, (citing Black v. Romano (1985), 471 U.S. 606, 611-12) and Swan, 220 Mont. at 165, 713 P.2d at 1005-1006.

From the record it is clear that all of these requirements have been met in the instant case. Defendant’s constitutional rights have been upheld.

Defendant next argues that the State, through its prosecutor and probation officer, used “erroneous information” to obtain revocation of his suspended sentence. Specifically, defendant alleges that 1) the prosecutor erroneously led the district judge presiding at the January 23, 1989 hearing on a motion to dismiss, to believe defendant had been arraigned on the bench warrant; 2) the prosecutor led the probation officer and the probation officer supplied false information regarding a report made by a Troy, Montana police officer, and the State did not subpoena the Troy police officer or the Libby probation officer whose reports were referred to in the hearing in revocation of probation, i.e., the State improperly relied on hearsay to make its case.

Defendant’s argument that the judge was erroneously led to believe defendant- had been arraigned in Oregon does not stand up to scrutiny. The bench warrant for defendant’s arrest was issued on July 12, 1989. Defendant was arrested on October 13, 1988 in Oregon. An Oregon court document, dated October 17, 1988, clearly states that defendant “has been arraigned on the fugitive complaint” and “has refused to waive extradition.”

Defendant appears to be arguing that he was arraigned on a fugitive complaint only rather than on a bench warrant and fugitive complaint, and therefore, procedural due process was lacking. Whether defendant was arraigned in Oregon on the fugitive complaint only makes no difference. The fugitive complaint contains information adequate to apprise the fugitive of the reasons he is being detained. Additionally, defendant appeared in Missoula District Court shortly after he arrived in Montana following his extradition from Oregon. At this initial appearance, defendant received a copy of the petition to revoke his suspended sentence which contained allegations of the specific violations of probation conditions committed by him. On December 5, 1988, defendant again appeared in District Court and denied all allegations in the petition. Finally, a full hearing on the revocation petition was held in January, 1989 and testimony was presented. Defendant did not testify or offer evidence to rebut claims of probation violations alleged in the petition.

Defendant’s claims that the State through the testimony of Probation Officer Michael McCarty submitted erroneous testimony to the court and relied on reports from individuals who could easily have been subpoenaed, are also without merit.

Defendant asserts that Probation Officer McCarty perjured himself in his Report of Violation submitted to the District Court in which Mr. McCarty wrote the defendant “was observed drinking a beer by Bill Denton of the Troy Police Department.” At the revocation hearing Mr, McCarty also indicated that Officer Denton had observed defendant consuming alcohol in Troy. Police Officer Denton’s Investigation Crime Report, which was admitted into evidence at the revocation hearing, actually stated that the defendant “was found at the bar with a glass of beer in front of him.” Defendant further argues that both Officer Denton and Libby Probation Officer Edward Duelfer, whose reports chronicling defendant’s probation violations in Lincoln County were admitted into evidence, could have been subpoenaed and use of their reports constitutes hearsay.

At a probation revocation hearing the standard required is “fundamental fairness.” Meidinger, 168 Mont. at 15, 539 P.2d at 1190. The events of defendant’s multiple hearings indicate he received fundamental fairness. Mr. McCarty’s paraphrasing of the Investigation of Crime Report does not constitute perjury. Defendant’s counsel cross-examined Mr. McCarty at the hearing and had opportunity to rebut any testimony presented by Mr. McCarty. Furthermore, drinking intoxicants was only one of the several violations of probation conditions for which defendant’s probation and suspended sentence are being revoked. The hearing to revoke defendant’s probation therefore met the fundamental fairness requirement.

As to the charge that reports from the Troy police officer and Libby probation officer were improperly admitted over objection by counsel that testimony as to their content would constitute hearsay, it must be remembered the revocation hearing is not a criminal trial. The defendant has already been convicted of a crime and the hearing is only to establish violations of the prisoner’s probation. Id. For those reasons, less process is due the prisoner, and “that process must be flexible enough to allow the court to consider documentary evidence that may not meet usual evidentiary requirements.” U.S. v. Simmons (9th Cir. 1987), 812 F.2d 561, 564: The admission into evidence of the officers’ reports was not error in the probation revocation hearing. We hold that defendant’s constitutional right to due process was not violated during the proceedings to revoke probation and suspended sentence.

We affirm.

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


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    CAROL FOX KARELL, Plaintiff and Appellant, v. AMERICAN CANCER SOCIETY, MONTANA DIVISION, INC., A Montana corp., Defendant and Respondent.
    No. 89-217.
    Submitted on Briefs Aug. 3, 1989.
    Decided Sept. 14, 1989.
    779 P.2d 506.

      Calvin J. Stacey, Keefer, Roybal, Hanson, Stacey and Walen, Billings for plaintiff and appellant.
    Sidney R. Thomas; T. Thomas Singer, Moulton Law Firm, Billings, for defendant and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The District'Court of the Thirteenth Judicial District, Yellowstone County, granted respondent American Cancer Society’s motion for summary judgment dismissing appellant Carol Karell’s suit for breach of the implied covenant of good faith and fair dealing, and negligent discharge. The court found that the respondent employer gave the appellant employee no reasonable expectation of job security and therefore created no implied covenant of good faith and fair dealing or duty of reasonable care. Karell appeals this decision. The American Cancer Society cross-appeals the District Court’s denial of the respondent’s memorandum of costs as not timely filed. We affirm the summary judgment and reverse the denial of respondent’s memorandum of costs as untimely filed.

ISSUES

1. The appellant raises the following issues on appeal. Did the District Court err in concluding on summary judgment:

a. That as a matter of law the implied covenant of good faith and fair dealing did not arise in the employment relationship between the American Cancer Society and Carol Karell because the respondent gave the appellant no reasonable expectation of job security; and

b. That the American Cancer Society was not negligent in discharging appellant Karell?

2. The respondent raises the following issue on cross-appeal:

Did the District Court err in rejecting the American Cancer Society’s memorandum of costs as not timely filed?

FACTS

Stan Wieczorek, the Vice President of the Montana Division of the American Cancer Society (ACS), hired Carol Karell as Division Program Director on January 6, 1986. ACS’s policy manual provided for a six-month probationary period during which either party could terminate the employment relationship without notice. Following the probationary period, ACS retained an express “right to discharge without notice or further pay, anyone who has willfully failed in his duties or who has been guilty of misconduct.”

During her year-long employment with ACS, Karell received three pertinent memos from officers of the national organization. Each memo discussed business-related topics and included praise for Karell’s work on various projects. In April, National Public Education Representative Marcia Nenno praised Karell’s “excellent, enthusiastic, well organized” Public Education Committee meeting. In November, Representative Nenno again praised Karell for having accomplished a “GREAT deal” through her enthusiastic efforts. In December, C.P.S.II National Coordinator Melody Davis congratulated Karell on “a job beautifully done” in a data collection project.

During the same period, Karell received several critical letters from Stan Wieczorek, her immediate supervisor. In April Wieczorek reproached Karell for failing to complete a required inventory report. In August he noted that Karell had failed to complete time summary reports and had taken vacation time without a written request. In September Wieczorek again sent Karell a disapproving letter. He complained that she failed to set an itinerary for a field trip and lacked the basic occupational skills to organize volunteer groups for the ACS. Finally, he rebuked Karell for consistently failing to show up for work on time. On January 30, 1987, Wieczorek discharged Karell.

In April of 1987, Karell filed suit against ACS in District Court alleging breach of the implied covenant of good faith and fair dealing, negligent discharge, and wrongful discharge. Karell later dropped the wrongful discharge count. On February 6, 1989, the District Court, by memorandum decision mailed to the parties, granted ACS’s motion for summary judgment on the remaining charges. On February 14, 1989, the District Court entered judgment and the following day the respondent filed its memorandum of costs with the District Court clerk. The appellant objected to the memorandum of costs and the District Court rejected it as not timely filed.

1. a. The Implied Covenant of Good Faith and Fair Dealing

Given these facts, did the District Court err in granting ACS’s motion for summary judgment when it found that as a matter of law the implied covenant of good faith and fair dealing did not arise because the ACS gave Karell no reasonable expectation of job security?

The criteria for review of summary judgment are well settled. The standard for review of a summary judgment is the same as that used by the trial court. Frigon v. Morrison-Maierle, Inc. (Mont. 1988), [233 Mont. 113,] 760 P.2d 57, 59, 45 St.Rep. 1344, 1346. Summary judgment is properly granted when it appears “that there is no genuine issue 'as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c), M.R.Civ.P. Once the moving party meets its burden of establishing facts sufficient to satisfy both statutory requirements, the burden shifts to the non-moving party to show the existence of a genuine issue of fact. Gamble Robinson Co. v. Carousel Properties (1984), 212 Mont. 305, 311-12, 688 P.2d 283, 286-87. The non-moving party’s evidence of an issue of fact must be substantial and material. Benson v. Diehl (Mont. 1987), [228 Mont. 199,] 745 P.2d 315, 316, 44 St.Rep. 1455, 1456. Here, we hold that there is no genuine issue of material fact which requires reversal of the summary judgment. When, as in this case, there is no genuine issue as to any material fact, the question of whether or not the implied covenant of good faith and fair dealing arises is a matter of law to be decided by the judge.

In determining whether the covenant of good faith and fair dealing is implied in a particular case, the trial court must look to the employment relationship of the parties.

“Whether a covenant of good faith and fair dealing is implied in a particular case depends upon objective manifestations by the employer giving rise to the employee’s reasonable belief that he or she has job security and will be treated fairly.”

Dare v. Montana Petroleum Marketing Co. (1984), 212 Mont. 274, 282, 687 P.2d 1015, 1020.

Respondent’s Burden

ACS argues that it has satisfied its summary judgment burden because no attending facts show that the respondent gave Karell any reason to believe that her position was secure and, therefore, the implied covenant against bad faith never materialized. We agree; the facts of this case depict no reasonable expectations of job security.

Karell’s immediate supervisor, Stan Wieczorek, criticized Karell’s performance on several occasions. In April of 1986, he sent Karell a letter noting that she had failed to compile a “Loan Closet Inventory and Needs Assessment for the Yellowstone/Billings Unit.” Noting the adverse effect of Karell’s dereliction, Wieczorek stated, “I can’t tell you how disappointed I was that I did not receive this report and how embarrassed I was to tell Carolyn and the other volunteers it was not available.” Three months later, Wieczorek admonished Karell for taking vacation time without first obtaining written permission as required by the Montana Division’s personnel policies. He also noted that she had not filed weekly time summary reports for the third weeks in February, May and August which were required by the organization’s auditors. At one point, Wieczorek relieved Karell of responsibility for supervising her secretary because he felt she had no management skills.

A September 26 letter from Wieczorek to Karell illustrates his concerns.

“I was surprised to hear you admit that you did not even know what your itinerary was for 3 of the 4 day field trip [to Great Falls]. It was obvious, you did not put alot [sic] of thought into the reasons for the trip.
“It was even more alarming to me for you to admit that you did not know how to organize a volunteer committee. Carol, the reason I hired you as Program Director, is because you had over 6 years experience working with volunteers .... Added to this experience, I have provided Division training plus National training at the Western Area New Staff Orientation ... in February and the New Staff Public Education Conference . . . this past summer.
“As you are aware, our Area Directors have an enormous responsibility to their Units and this is one of the reasons we decided to hire a Division Program Director, to give our staff the much needed assistance in Unit organization.
“I need to address one of your frequently stated concerns: too much work and not enough time .... One way that would provide you with more time is to simply report to work at 9:00 a.m. every morning. You are not meeting your obligation or demonstrating staff leadership by reporting to work at 9:20 every morning.
“Carol, please plan to meet with me Wednesday, October 1st, at 9:00 a.m. to discuss in depth your role as our Division Program Director.”

Defendant’s Deposition Exhibit No. 5.

Wieczorek took several remedial steps to improve Karell’s performance. He asked her to work closely with knowledgeable personnel in preparing the Inventory and Needs Assessment report. In his September 26 letter, Wieczorek laid out a seven-step procedure for organizing volunteer committees, offered individual training by Marcia Nenno of the national'organization, and asked Karell to attend several training workshops. Finally, Wieczorek asked Karell to submit weekly writteij reports of her activities.

From these facts, it is difficult to see how any reasonable person could believe that their job was secure. We agree with the District Court that the respondent provided sufficient evidence to meet its burden of establishing that as a matter of law the implied covenant of good faith and fair dealing never arose in the employment relationship between ACS and Karell.

Appellant’s Burden

Appellant argues that the laudatory remarks in her three National American Cancer Society memos constitute objective manifestations of job security sufficient to overcome a motion for summary judgment. We do not agree.

Objective manifestations of job security must come from the employer. In Dare we specifically stated “manifestations by the employer” could imply the covenant of good faith and fair dealing. Dare, 212 Mont. at 282, 687 P.2d at 1020. (Emphasis added.)

The employer’s position is pivotal in the employment relationship. The employer has the exclusive right to hire and fire. The employer is responsible for the employee’s performance and is in the best position to evaluate it. The employer has the power to rebuke or reward the employee and is the only one with the power to create job security.

As in the present case, compliments from those who are not the employer may be based on incomplete or inaccurate information by persons who are not accountable to the employee. Representative Nenno and Coordinator Davis praised Karell’s work on specific projects in which they were involved. They may have been unaware that Karell’s immediate supervisor, Stan Wieczorek, who held responsibility for her work and continued employment, had repeatedly complained about her performance. We agree with the District Court that these non-employer comments do not support an implied covenant of good faith and fair dealing.

The appellant argues that a conversation with Wieczorek during a ski trip in December of 1986 also supports her belief that her position with ACS was secure. Karell alleges that Wieczorek stated that she “had a wonderful future with the American Cancer Society and . . . could go anywhere” in the organization. To overcome a motion for summary judgment, the non-moving party’s evidence must be substantial and material. Benson v. Diehl (Mont. 1987), [228 Mont. 199,] 745 P.2d 315, 316, 44 St.Rep. 1455, 1456. Occasional compliments by an employer are not sufficient to establish a reasonable expectation of job security.

The appellant also argues that she reasonably believed she had job security because Wieczorek did not warn her that her employment was in jeopardy. Such warnings are not mandatory, but may be considered along with other evidence of objective manifestations of job security. Rupnow v. City of Polson (Mont. 1988), [234 Mont. 66,] 761 P.2d 802, 805, 45 St.Rep. 1734, 1739.

The appellant’s evidence is distilled to one compliment from her employer and the fact that he did not threaten to fire her before doing so. Karell has established no substantial facts which demonstrate a genuine issue as to whether she had a reasonable expectation of job security. The District Court correctly held that no implied covenant of good faith and fair dealing occurred in this employment relationship. We affirm its summary judgment.

1. b. Negligent Discharge

Did the District Court err in concluding on summary judgment that the American Cancer Society was not negligent in discharging appellant Karell?

Montana has recognized the cause of action for negligent discharge from employment. Rupnow v. City of Polson (Mont. 1988), [234 Mont. 66,] 761 P.2d 802, 806, 45 St.Rep. 1734, 1739. The appellant argued this issue before the District Court, and the District Court entered summary judgment for the respondent. In the present appeal, Karell did not address negligent discharge in either the appellant’s brief or the reply brief. Nor has the respondent moved for dismissal of this issue. With no contentions to show that the District Court was in error, we affirm summary judgment on the negligent discharge issue.

2. Memorandum of Costs

Did the District Court err in rejecting the American’ Cancer Society’s memorandum of costs as not timely filed?

The pertinent Montana statute provides that:

“The party in whose favor judgment is rendered and who claims his costs must deliver to the clerk and serve upon the adverse party, within 5 days after the verdict or notice of the decision of the court or referee or, if the entry of the judgment on the verdict or decision be stayed, then before such entry is made, a memorandum of the items of his costs ...”

Section 25-10-501, MCA (1987).

The case law on the timing of memoranda of costs has been a slow and sometimes meandering evolution. In McDonnell v. Huffine, [44 Mont. 411,] we held that the five-day statutory time period begins to run when the District Court signs and files its findings of fact and conclusions of law and not when the court orally announces its decision. Huffine (1912), 44 Mont. 411, 428, 120 P. 792, 797. In contrast, in Miles v. Miles [76 Mont. 375,] we held that the “notice” under the statute indicated knowledge of the court’s decision and that formal notification was not necessary. Miles (1926), 76 Mont. 375, 382-83, 247 P. 328, 331.

In the present case, the respondent makes an alternative argument that the five days begins to run on the date of entry of judgment. This is not necessarily true. Whether the date of entry will be the trigger date depends on when the District Court’s decision is final.

In Ballenger v. Tillman, [133 Mont. 369,] we upheld a memorandum of costs filed within five days after the District Court rendered its final decision. Ballenger (1958), 133 Mont. 369, 382, 324 P.2d 1045, 1052. We rejected the date of the court’s findings of fact and conclusions of law as an appropriate trigger because the court allowed the parties to file exceptions to the findings and conclusions effectively staying the final decision. In Davis v. Trobough [139 Mont. 322,] we interpreted Ballenger as holding that the date of entry of judgment was the appropriate trigger. Davis (1961), 139 Mont. 322, 326-27, 363 P.2d 727, 729-30. Two subsequent cases followed this decision in rejecting the date of the jury verdict. By relying on the date of entry of judgment, these courts postponed filing and serving the memorandum of costs until after the parties completed all post-trial motions. Poeppel v. Fisher (1977), 175 Mont. 136, 142, 572 P.2d 912, 915; Funk v. Robbin (1984), 212 Mont. 437, 448, 689 P.2d 1215, 1221.

In State v. Helehan [189 Mont. 339,] post-trial proceedings were not an issue and we returned to the plain language of the statute. Helehan (1980), 189 Mont. 339, 342-43, 615 P.2d 925, 927-28. The statute provides that the time period begins with the “verdict or notice of the decision.” We held that the date of the jury verdict triggered the time limitation. We also applied Rule 6 of the Montana Rules of Civil Procedure extending the deadline by correctly excluding intervening Saturdays and Sundays, but, because of the jury verdict, incorrectly allowing three additional days for mailing. Helehan, 189 Mont. at 343, 615 P.2d at 928. Mailing is not necessary in the case of a jury verdict, and the three-extra-days clause of Rule 6 does not apply.

Like Helehan, our most recent decision on this issue followed the plain language of the statute in holding that the date of the jury’s decision is the appropriate trigger. R.H. Grover, Inc. v. Flynn Ins. Co. (Mont. 1989), [238 Mont. 278,] 777 P.2d 338, 46 St.Rep. 1266, 1274. Rule 6, M.R.Civ.P., was not addressed in Grover; an extra three days for mailing and exclusion of weekends would not have affected the outcome of the decision. We also distinguished cases relying on the date of entry of judgment such as Poeppel and Funk, erroneously stating that they were bench trials. We reasoned that in a bench trial the District Court retains more latitude than juries as to when it will render its decision. Grover, 111 P.2d at 344, 46 St.Rep. at 1274.

In the present case we agree with the respondent’s argument that Rule 6, M.R. Civ. P. brings ACS’s memorandum of costs within the five-day limitation. Because no jury was involved, the issue here is one of “notice” under the statute rather than one of “verdict.” The District Court mailed its memorandum decision to the parties on Monday, February 6, thereby beginning the five-day limitation.

The day of notice is not counted, Rule 6(a), M.R.Civ.P.; § 1-1-306, MCA (1987), leaving Tuesday, February 7 as day one. Since the statutory period in question is less than eleven days, intermediate Saturdays and Sundays are excluded by Rule 6 (a), M.R.Civ.P. Saturday, February 11, and Sunday, February 12, are eliminated. Monday, February 13, thereby becomes the fifth day. A party receiving notice by mail, as in this case, has an additional three days in which to act. Rule 6(e), M.R.Civ.P. The three additional days, and the limitation on ACS’s memorandum of costs, ended on February 16. ACS filed its memorandum in the District Court on February 15 and served the appellant on February 16. We therefore hold that the respondent’s memorandum of costs was timely filed and reverse the District Court’s decision.

Summary judgment for the respondent affirmed. Dismissal of respondent’s memorandum of costs reversed.

JUSTICES HARRISON, WEBER, McDONOUGH and GULBRANDSON concur.


text:
    LARRY GAY, Plaintiff and Appellant, v. CABINET PUBLISHING, INC., Defendant and Respondent.
    No. 89-223.
    Submitted on Briefs Aug. 10, 1989.
    Decided Sept. 14, 1989.
    779 P.2d 77.
    Richard R. Buley; Tipp, Frizzell & Buley, Missoula, for plaintiff and appellant.
    L. Charles Evans, Libby, for defendant and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Larry Gay (Gay) initiated this action to recover proceeds from sale of equipment respondent Cabinet Publishing, Inc. (Cabinet) allegedly sold in violation of Article 9 of the Uniform Commercial Code. Following a bench trial, the District Court of the Nineteenth Judicial District, Lincoln County, entered judgment for Cabinet ruling that the transaction between Gay and Cabinet was a true lease and not subject to Article 9. From that judgment, Gay appeals. We affirm.

Appellant raises two issues for review.

1. Did the District Court err in determining that the lease agreement between Gay and Cabinet was a true lease and not a secured transaction?

2. Did the sale of the equipment conform to the requirements of the U.C.C.?

On April 2, 1979, Summit County Sentinel Corporation, owned by William C. King and Clara C. King, purchased Western Montana Publishing Company (Western) from Paul and Iris Verdón. Western ran the weekly newspaper in Libby, Montana called the Western News. The Verdons retained a perfected security interest in all the business’ printing equipment.

Sometime in 1979, Gay and Rodney Johansen started a newspaper called Bargain Express, which competed with the Western News. After a period of stiff competition, Gay and Johansen agreed to sell the Bargain Express to Western. On December 18, 1980, the parties executed a contract whereby Western agreed to give up the job printing and office supply business and assign such rights, including most of the Lincoln County printing contract, to Gay and Johansen. As part of the contract, Western transferred to Gay and Johansen certain inventory and equipment not subject to the Verdons’ security interest.

Additionally, the contract provided that Western would lease to Gay and Johansen the equipment that was subject to the Verdons’ security interest. The lease was to run until May 1, 1994 at which time Western’s indebtedness to the Verdons would be satisfied. At that time, Gay and Johansen would have an option to purchase the equipment for $50. As consideration for the lease, Gay and Johansen agreed to pay the taxes on the equipment, insure it against theft and damage and keep it in good repair. If Gay and Johansen failed to perform their obligations, then the contract provided for a five-day default period after which time Western could repossess the equipment if the default was not cured. The contract expressly stated that the leased equipment was subject to Verdons’ security interest. At the time of the contract, Gay and Johansen also entered into a side agreement with Western in which they agreed not to move the leased equipment without written permission of the Verdons. This agreement was in writing and sent to the Verdons.

Cabinet, owned by Mark and June McMahon, purchased Summit’s interest in Western on August 27, 1981. Cabinet assumed Western’s purchase and lease agreement with Gay, and Johansen.

Between September, 1981 and September, 1982, Gay and Johansen encountered numerous difficulties. They were arrested and convicted on federal counterfeiting charges and had to serve almost three months in prison beginning February 1, 1982. On November 2, 1981, they were served with an eviction notice at their Express Press location. On January 8, 1982, Gay moved all the printing equipment from the Express Press building into storage. Also during this time, United Bank obtained a judgment against Gay and Johansen on defaulted loans and seized and sold whatever assets it could.

On July 2, 1982, Cabinet served a Notice of Default on Gay in connection with the leased equipment. Gay did not pay the taxes on the equipment for either 1981 or 1982. Gay failed to insure the equipment against theft at any time and what insurance had been on the equipment had expired in the fall of 1981. Also the equipment was not in good repair. Gay and Johansen did not correct the default within the five-day period.

As to the repossessed equipment, Cabinet and the Verdons agreed that the equipment should be sold and the proceeds applied to the Verdón debt. Cabinet subsequently had the repossessed equipment appraised by a Mr. Buckner, a licensed broker from Spokane, Washington. Some of the equipment was then sold to a Ray Denning at its fair market value as determined by Buckner. Buckner sold the remainder at fair market value to third parties. The proceeds were then applied to the Verdón obligation as agreed.

I.

Did the District Court err in determining that the lease agreement was a true lease and not a secured transaction? Due to our holding on issue two, we need not discuss this issue. The evidence shows a valid sale.

II.

Did the sale of the equipment conform to the requirements of the U.C.C.?

Section 30-9-504, MCA, sets forth both the secured party’s right to dispose of collateral after default and a scheme of priorities for distributing the proceeds. Under § 30-9-504, MCA, the secured party may sell the collateral in any commercially reasonable manner. The proceeds must then be distributed in the following order: (1) to the expenses of the sale; (2) to satisfy the indebtedness secured by the security interest under which the disposition is made; and (3) to satisfy any subordinate security interest if certain requirements are met. The secured party must account to the debtor for any surplus. Additionally, the U.C.C. requires the secured party to notify the debtor of the time and manner of sale.

Appellant contends that respondent violated § 30-9-504, MCA, because respondent failed to give him proper notice of sale and failed to account for the surplus proceeds of the sale.

The status of the parties in relation to the equipment is not in dispute. Verdons and respondent are secured parties with Verdons’ security interest being superior to respondent’s. Appellant is the debtor-in-default. Also, no dispute exists that both secured parties, Verdons and respondent, planned that a sale should take place and that the proceeds should be applied to the Verdón indebtedness. Because of this plan, in eifect both secured parties disposed of the equipment and the proceeds were then applied to satisfy the “indebtedness secured by the security interest under which the disposition is made.” Section 30-9-504(1) (b), MCA. The distribution of the sale proceeds conformed to the requirements of § 30-9-504, MCA. No surplus proceeds remained to distribute to appellant.

Appellant also asserts summarily that respondent did not give him proper notice of the time and manner of sale. However, appellant failed to give this Court any arguments or any references to the record in support of his assertion. We reject appellant’s contention.

This Court affirms correct District Court decisions. We affirm the District Court.

JUSTICES WEBER, McDONOUGH, HUNT and GULBRANDSON concur.


author: JUSTICE SHEEHY

text:
    P.W. BERRY COMPANY, INC., Petitioner and Appellant, v. DEBRA FREESE, Respondent and Respondent.
    No. 88-608.
    Submitted on Briefs June 30, 1989.
    Decided Sept. 18, 1989.
    779 P.2d 521.

      Larry W. Jones, Garlington, Lohn & Robinson, Missoula, for petitioner and appellant.
    Valerie A. Bashor, Michael Sherwood, Sherwood Law Office, Missoula, for respondent and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

P.W. Berry Company, Inc., appeals from a Judgment of the District Court, First Judicial District, Lewis and Clark County, affirming an award of the Human Rights Commission to Debra Freese of $4,730.25 as back wages with interest at the rate of 10 percent per annum from the date the wages would have been earned. We affirm.

Debra Freese charged the employer, P.W. Berry Company, Inc., with sex discrimination in her employment which resulted in her discharge. The Human Rights Division issued “reasonable cause findings” in which it found there were reasonable grounds to believe that discrimination occurred. A hearing examiner appointed by the Human Rights Commission issued suggested findings of fact and conclusions of law that were later essentially adopted by the Human Rights Commission that sex discrimination had in fact occurred, and that Freese was entitled to the loss of back wages with interest thereon. The decision of the Human Rights Commission was appealed to the District Court where, after consideration, the District Court affirmed. An appeal to this Court resulted.

Berry has not appealed in this Court nor did it appeal in the District Court, from the finding of the Human Rights Commission that sex discrimination had occurred in the discharge of Freese. The attack of Berry in the District Court, and now in this Court, is that the back wages awarded to Freese were improperly calculated.

Freese is a female construction laborer who at the time of her first employment by Berry was classified as an “A” general laborer by her union, with experience in the construction business dating from 1972. The Human Rights Commission found that she had been thoroughly apprenticed, had a variety of experience in construction work, grade setting, pipe laying, the use of common hand tools, and that she met the qualifications demanded by the positions of concrete pipe layer and general laborer.

On April 24, 1984, Freese was dispatched by her union to do pipe-laying work for Berry at its request and she began work on April 25, 1984. She worked laying heavy concrete pipe for three days and on April 27, 1984, she was discharged and given a separation notice stating she was not a skilled concrete pipe layer, had unsatisfactory production, but was eligible for rehire for other work than back fill and pipe work.

On August 21, 1984, Berry requested the union to dispatch two general laborers to the same construction project and Freese was dispatched as one of those laborers. She worked for three days as a general laborer, but including work as a pipe layer, from August 22, 1984 through August 24, 1984 when again she was terminated for “unsatisfactory work.”

The Commission found that both discharges were illegal, and that the first was connected to the second. It calculated that Freese was entitled to back pay for a total of 127 eight-hour working days, or $11,755.12. Against this sum was an offset for wages Freese received at other jobs in the sum of $7,024.87. The Commission awarded her the net of $4,730.25, including prejudgment interest to the date of judgment.

Berry, on appeal to the District Court, and now in this Court, attacks the award of back pay on the grounds that the testimony of one Terry Erhardt should not have been admitted by the hearings examiner, because Erhardt’s name was not listed at the pre-hearing conference as a witness for Freese and that Erhardt’s exhibit should also not have been admitted. Berry also contends that the hearing examiner imposed the wrong burden of proof on Berry with respect to the back wages, and that the amount of back wages was improperly calculated by the hearing examiner and by the Human Rights Commission because of the limited days for which concrete pipe work was available on the construction project.

Berry contends that counsel for Freese had spoken to Ms. Erhardt a year before the hearing and was familiar with the information Ms. Erhardt had relating to her claim, but failed to identify this person as a witness until the Friday before the Monday hearing. The significance of Ms. Erhardt’s testimony is that she testified as to the type of job for which Freese was called out from the union hall to work and whether Berry required pipe laying or general labor. Berry relies on Workman v. McIntyre Construction Company (1980), 190 Mont. 5, 617 P.2d 1281, wherein this Court held that a trial court abuses its discretion in admitting an exhibit when the party offering the exhibit fails to give fair notice of its intent to offer the exhibit. In brief Berry claims that its counsel did not interview Ms. Erhardt because Freese did not list her as a witness that Freese would call at the hearing to support her claim.

This contention is remarkable because Ms. Erhardt had been listed by Berry as one of its own witnesses on the pre-hearing order. When counsel for Berry informed counsel for Freese that Berry did not intend to call Ms. Erhardt as a witness, counsel for Freese thereupon decided to call Erhardt as her witness. The exhibit, upon which Ms. Erhardt testified, consisted of a business record kept in the ordinary course of business in the union office which was used to corroborate testimony regarding Freese’s prior experience and job calls from the union. The objection made by Berry to the introduction of the exhibit was only that the records were repetitious.

The District Court held that under those facts, Workman did not apply, as Berry could not have been surprised by the testimony of a person whom the employer had listed as one of its own witnesses. We also find no merit in this contention. The testimony of Erhardt and the exhibit were properly admitted.

As to the amount of back pay awarded to Freese, Berry contends that under the record, she was entitled at most to 27 eight-hour days of employment in the total sum of $2,499.12. Berry makes this argument because it contends that the only work for which she had been called out by Berry was to do concrete pipe-laying work and that no more than eight days of such work was available to her on this construction project after her termination. The Commission, however, found through its hearing examiner, that on the second occasion she had been called out for general labor, but had been assigned to concrete pipe laying and that she was qualified both for the positions of concrete pipe layer and general laborer. The Commission therefore calculated the amount of days of availability for both types of labor and based its award of back pay on that number of days.

Berry contends, however, that the Commission improperly imposed a burden of proof upon Berry with respect to back pay because the Commission reasoned:

“In order to establish a briefer period [for an award of back pay] the respondent [Berry] has the burden of showing by clear and convincing evidence that the charging party [Freese] would not have been employed for the entire term of the project even absent the discriminatory treatment.”

Freese contends, and we agree, that the Montana Human Rights Act is closely modeled after federal law and that we follow federal case law interpreting federal discrimination law in applying the Montana Human Rights Act. Martinez v. Yellowstone County Welfare Department (Mont. 1981), [_Mont._,] [38 St.Rep. 474,] 626 P.2d 242. Under federal law, a charging party’s back pay period may be reduced if he or she would have been unavailable for employment due to nondiscriminatory reasons and therefore would not have been able to earn the amounts claimed in any event. A. Larson, 2 Employment Discrimination (ed. 1988) § 55.37(a)(iii). See also Albermarle Paper Company v. Moody (1975), 95 S.Ct. 2362, 422 U.S. 405, 45 L.Ed.2d 280; Dolan v. School District No. 10, Deer Lodge County (1981), 195 Mont. 340, 636 P.2d 825.

In the Court of Appeals for the Ninth Circuit, it has been held that once a charging party has established a prima facie case of discrimination and established what is contended to be the damages resulting from this discrimination, the burden then shifts to the defendant to prove by clear and convincing evidence that a lesser amount is proper. Marotta v. Usery (Ninth Cir., 1980), 629 F.2d 615; Ostroff v. Employment Exchange Inc. (Ninth Cir., 1982), 683 F.2d 302; Nanty v. Barrows Co. (Ninth Cir., 1981), 660 F.2d 1327.

Under the findings of the Commission, Freese established a prima facie case that general labor was available for 127 days and that she was eligible and capable of doing that kind of work. Once a prima facie case was established, the burden then fell upon the employer to show that nondiscriminatory reasons existed to reduce her claim of back pay. Berry’s argument here is that the back pay should have been calculated only on the basis of the availability of concrete pipe-laying work. However, the Commission found that she was called out not only for concrete laying work but for general labor as well. Berry also claims that, through Ms. Erhardt, the employer could have produced testimony to show that there were 65 other laborers available through the union hall to fill the job required by Berry. However, this argument does not take into account the illegal terminations of Freese by Berry nor the fact that Ms. Erhardt was as available to Berry for such evidence as she was to Freese.

The District Court properly noted in this case that the standards for judicial review of a determination by an administrative agency are set forth in § 2-4-704, MCA; and that under Harris v. Bauer (1988), [230 Mont. 207,] 45 St.Rep. 147, 151, 749 P.2d 1068, 1071 and Johnson v. Bozeman School District No. 7 (1987), 226 Mont. 134, 44 St.Rep. 531, 734 P.2d 209, findings of fact by an administrative agency are subject to the “clearly erroneous” standard of review and conclusions of law are subject to the “abuse of discretion” standard of review. On this appeal, we find no basis, applying the standard of review either for findings of fact or for conclusions of law, to reverse the amount of back pay found by the Human Rights Commission and affirmed by the District Court. We therefore affirm.

JUSTICES HARRISON, WEBER, HUNT and McDONOUGH concur.


author: JUSTICE WEBER JUSTICE SHEEHY,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KYONG CHA KIM, Defendant and Appellant.
    No. 89-46.
    Submitted on Briefs June 30, 1989.
    Decided Sept. 18, 1989.
    779 P.2d 512.

      Joseph M. Goldman and Michael F. Bailey; Goldman Law Offices, Missoula, for defendant and appellant
    Marc Racicot, Atty. Gen., Kathy Seeley, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, County Atty., Missoula, for plaintiff and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Kyong Cha Kim was convicted by jury of prostitution, a misdemeanor, and promoting prostitution, a misdemeanor, in the Fourth Judicial District Court, Missoula, Montana. Ms. Kim was sentenced to six months on each count, to be served in the Missoula County Jail, the sentences to be served consecutively. Both sentences were suspended. Ms. Kim was also fined $500 on each count. From these convictions, Ms. Kim appeals. We affirm.

1. Did the District Court err in denying defendant’s motion to dismiss based on entrapment?

2. Did the District Court err in denying defendant’s motion to suppress certain evidence obtained through a consent to search warrant?

In the fall of 1987, Ms. Kim moved to Missoula, Montana, where she opened a sauna massage business named the Crossroads Sauna. Shortly after the business opened the Missoula County Attorney’s office began receiving complaints about prostitution at the business.

In October 1987, the county attorney’s office began an investigation into the activities of the Crossroads Sauna. Initially, on October 21, 1987, two detectives, posing as truck drivers, went to the sauna. A female employee of the sauna showed them the facilities and explained that the sauna offered a $40, $60 and $100 massage. Both officers testified that when they asked what the $100 massage in-eluded, they were told it included “everything.” The detectives did not request a massage during that visit. They returned on November 10, 1987, and on this visit they spoke directly to Ms. Kim who told them only the $100 massage was available. However, when the officers refused to pay $100, Ms. Kim said they could receive the $40 massage. Both detectives were then asked to sign a form acknowledging that they would not give anything of value for any sexual conduct. The detectives testified that the $40 massage consisted of a sauna, a shower, and a back rub by Ms. Kim and another employee.

During that same visit the two detectives asked Ms. Kim about holding a bachelor party for a friend at the Crossroads Sauna. Ms. Kim agreed to the party. She stated, however, that each member of the party must receive the $100 massage. When the detectives asked her what this included she said it included “everything,” and that she would teach the groom how to make love to his new wife.

On November 19, 1987, six deputies and a deputy county attorney arrived at the Crossroads Sauna for the purported bachelor party. They brought beer with them and on the way there each had consumed a beer or less in order to appear to be partying. One officer carried a gun. Ms. Kim and two female employees admitted the officers. A fourth woman was on the premises but never became involved with the party.

The men were escorted to a room where the groom was given a bottle of champagne, and seated on a chair. The officers testified that the two employees sat on his lap and began to unbutton his shirt and take off his belt. An officer and the deputy county attorney then began talking to Ms. Kim outside the room. Conflicting testimony was presented as to who initiated conversation about sexual intercourse, however, the officers testified that when they asked Ms. Kim about protection, she assured the officers that she had “rubbers.” The negotiations ended with an agreement that for the $100 each, the groom would have sex with all three women, and the other members of the party would each have sex once. The officers testified that this conversation was carried on in a quiet and businesslike manner.

After this conversation, Ms. Kim was arrested and handcuffed, as were the two employees. They were given Miranda rights. While one employee became very upset and had to be physically subdued, the officers testified that Ms. Kim and the other employee were cooperative and composed. Ms. Kim was asked if she would sign a consent form, allowing the officers to search the premises. She agreed to sign the form and a search was conducted. During the search Ms. Kim showed the officers where boxes of condoms were stored in her freezer. A later count revealed that this supply included 334 condoms. Ms. Kim entered pleas of not guilty to prostitution and promoting prostitution.

Ms. Kim was tried by jury in Justice Court on May 26, 1988, and a verdict of guilty was returned on both counts. Ms. Kim then appealed to District Court. She moved for dismissal, alleging the affirmative defense of entrapment. She also moved to suppress the evidence seized during the search. The hearing on these motions was held on September 29-30, 1988, and the court denied both motions. Ms. Kim was tried by jury on October 26-28, 1988, and the jury returned a verdict of guilty on each count.

I.

Did the District Court err in denying defendant’s motion to dismiss based on entrapment?

As a pretrial motion, Ms. Kim moved to dismiss the charges against her based on the affirmative defense of entrapment. The court’s hearing on this motion included testimony from numerous witnesses, including Ms. Kim and her employees, and witnesses for the State. The court denied this motion.

Initially, the State contends that the defense of entrapment is not available to a defendant who denies committing the acts for which she is charged, citing State v. Kamrud (1980), 188 Mont. 100, 103-04, 611 P.2d 188, 190. See also State v. O’Donnell (1960), 138 Mont. 123, 354 P.2d 1105; State v. Parr (1955), 129 Mont. 175, 283 P.2d 1086. In the present case, Ms. Kim pled not guilty to both the charge of prostitution and the charge of promoting prostitution. Thus, the State contends that Ms. Kim was not entitled to assert this defense. However, because the District Court heard testimony on this motion we will review the defense on its merits.

Entrapment is an affirmative defense available to a criminal defendant, and is codified in § 45-2-213, MCA, as follows:

“A person is not guilty of an offense if his conduct is incited or induced by a public servant or his agent for the purpose of obtaining evidence for the prosecution of such person. However, this section is inapplicable if a public servant or his agent merely affords to such person the opportunity or facility for committing an offense in furtherance of criminal purpose which such person has originated.”

The elements of this defense were further explained by this Court in State v. Hanley (1980), 186 Mont. 410, 414, 608 P.2d 104, 106, wherein we enumerated the elements of entrapment as follows:

“(1) criminal intent or design originating in the mind of the police officer or informer; (2) absence of criminal intent or design originating in the mind of the accused; (3) luring or inducing the accused into committing a crime he had no intention of committing. See State v. Grenfell (1977), 172 Mont. 345, 564 P.2d 171; State ex rel. Hamlin v. District Court (1973), 163 Mont. 16, 515 P.2d 74; State v. Karathanos, supra.”

The burden of establishing entrapment rests on the defendant. A court may determine that entrapment exists as a matter of law. Kamrud, 611 P.2d at 191; State v. Grenfell (1977), 172 Mont. 345, 564 P.2d 171. However, if there are conflicting facts, the issue is properly submitted to a jury. State v. McClure (1983), 202 Mont. 500, 503, 659 P.2d 278, 280. Additionally, in reviewing the denial of a motion to dismiss based on entrapment, this Court will view the evidence and inferences in a light most favorable to the State. State v. Merrill (1979), 23 Wash.App. 577, 597 P.2d 446.

Ms. Kim contends that entrapment was established as a matter of law, requiring dismissal of the charges. Ms. Kim contends that the criminal intent originated in the minds of the law enforcement officers, that she had no intent herself to commit the crime, and that she was induced to commit the crime. Ms. Kim relies on the cases of Kamrud and Grenfell in support of her contention. Having reviewed the evidence and the elements of this defense, we conclude that entrapment did not exist as a matter of law.

At the hearing, the officers testified that on the evening of the party, two of the women employees sat on the lap of the “groom,” and began to unbutton his shirt and undo his belt buckle. No testimony suggested that these women were induced to begin these actions. Additionally, the testimony by law enforcement personnel indicated that Ms. Kim did not have to be induced to participate in discussions about sexual intercourse for pay. Instead, their testimony emphasized that Ms. Kim was totally agreeable to negotiations regarding sex, and that she was prepared to supply “protection” in the form of condoms. In response, Ms. Kim denied that she agreed to provide sex. She testified that she was supposed to “tease” the “groom,” and that any references to sexual acts was all a part of the joke. This evidence regarding the defense of entrapment was properly submitted to the jury.

Ms. Kim relies on this Court’s decisions in Kamrud and Grenfell to support her contention that the court should have found entrapment as a matter of law. These cases are distinguishable in several respects, however.

In Grenfell an informant became a friend of the defendant over a period of six months and “persistently requested” help from the defendant in procuring drugs. In concluding that entrapment had occurred, this Court stated, “The record shows Grenfell was not predisposed to commit this offense.” Grenfell, 564 P.2d at 173.

In Kamrud, law enforcement officers induced the defendant to obtain drugs for them. As inducement to commit the crime, the officers used marijuana themselves in the presence of defendant, they became friendly and held parties to ingratiate themselves with defendant. There was no evidence that Mr. Kamrud had sold drugs in the past, or that the idea of selling the drugs originated with Mr. Kamrud. In Kamrud the officers violated the law themselves by using and giving away marijuana. In concluding that entrapment was established as a matter of law, this Court stated:

“ ‘In short, there is a controlling distinction between inducing a person to do an unlawful act and setting a trap to catch him in the execution of a criminal design of his own conception . . . State v. Karathanos (1972), 158 Mont. 461, 493 P.2d 326, 331 Kamrud, 611 P.2d at 191.

Comparing the present case to the facts of Kamrud and Grenfell, this controlling distinction is apparent. This is not a case where there was no suggestion of criminal activity prior to the investigation. The investigation was initiated because of citizen complaints. In the present case the law enforcement officers set a trap. However, the evidence, including the testimony of the officers, and the large supply of condoms, indicated that Ms. Kim did not have to be induced to participate in discussions about sexual intercourse. There was substantial credible evidence to support a finding that criminal intent originated with Ms. Kim. Understandably, the District Court refused to find that as a matter of law Ms. Kim lacked criminal intent, or was induced to commit the crime. These determinations were properly left for the jury. We affirm the District Court’s denial of Ms. Kim’s motion to dismiss.

II.

Did the District Court err in denying defendant’s motion to suppress certain evidence obtained through a consent to search warrant?

Immediately following her arrest, Ms. Kim signed a consent to search which allowed the officers to search the Crossroads Sauna. Ms. Kim claims that her consent was not voluntary under the totality of the circumstances, citing Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. She contends that the court erred in denying her motion to .suppress evidence obtained as a result of this search. At the hearing on this motion the District Court heard testimony about how the consent was obtained, and other relevant evidence. The court denied Ms. Kim’s motion to suppress.

The right to be free of an unreasonable search and seizure is guaranteed by the Fourth Amendment to the United States Constitution, and is made applicable to the states through the Fourteenth Amendment. One may however, consent to a search as long as that consent is proved by clear and convincing testimony and as long as it is established that the consent was not coerced. The State has the burden of showing that the consent was voluntary. Voluntariness is a factual issue and is determined from the totality of the circumstances. Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2058-59.

On appeal, our standard of review when considering a court’s ruling on a motion to suppress, is whether the record contains substantial credible evidence to support the district court’s findings, and whether those findings were applied correctly as a matter of law. State v. Beach (1985), 217 Mont. 132, 147, 705 P.2d 94, 103. “The credibility of the witnesses at a suppression hearing is properly determined by the trial court that heard testimony and observed the witnesses.” The trial court is the finder of fact in a suppression hearing. State v. Kirkaldie (1978), 179 Mont. 283, 289-90, 587 P.2d 1298, 1302-03.

Ms. Kim urges that her consent was not voluntary for the following reasons. She emphasizes that she was handcuffed and in the custody of seven male law enforcement officers. She notes that she is only five feet tall, and weighs only 100 pounds. She alleges that she was intimidated because one of her employees had to be physically subdued. Ms. Kim alleges that the officers threatened to “tear the place apart” if she did not sign the consent form. She alleges that one of the officers pointed a gun at one of her employees. Ms. Kim also claims her Korean descent and lack of familiarity with American processes made her vulnerable to the officers’ requests.

Ms. Kim signed the form approximately twenty-five minutes after she was arrested and approximately fifteen minutes after she witnessed the scuffle with her employee. At the time she signed, her handcuffs had been removed, and she was seated, drinking a pop and smoking. The officers testified that they read the form to Ms. Kim twice and that she also read it herself. The officers denied making any threats about “tearing the place apart.” Only one officer was carrying a gun, and he testified that he held the gun at his side for less than a minute while the arrests were being made, then put it away. He testified that he never pointed it at anyone.

While custody is a factor in the totality of the circumstances test, it does not necessarily negate consent. State ex rel. Kotwicki v. District Court (1975), 166 Mont. 335, 344, 532 P.2d 694, 699. Additionally, Ms. Kim’s background belies her contention that she lacked understanding of the proceedings. Testimony at the hearing established that Ms. Kim is an American citizen who has owned several businesses in America. In the past she has worked with sheriff and police departments as an interpreter. She has also worked as an interpreter in courtrooms and in jails.

The court had the opportunity to hear the witnesses, judge credibility, and weigh the evidence. The court determined that under the totality of the circumstances, the State’s evidence was clear and convincing that Ms. Kim’s consent was obtained voluntarily.

Ms. Kim also contends that the scope of the search exceeded the scope of the consent. She claims that the kitchen and office were not included in her consent. There is no merit to this claim because the consent form clearly authorized a search of Ms. Kim’s “Premise Business located at Crossroads Sauna/Wye.” Additionally, one officer testified at the hearing that he explained to Ms. Kim that “every room in the entire establishment would be searched.” Ms. Kim herself then directed the officers to the kitchen and showed them where the condoms were stored. We affirm the District Court’s denial of Ms. Kim’s motion to suppress.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and GULBRANDSON concur.

JUSTICE SHEEHY,

dissenting:

In my opinion, this case involves an entrapment and therefore the convictions ought not to stand.

On October 21, 1987, a captain of the Missoula County Sheriff’s Department directed two of his officers to visit Kim’s business premises and to investigate any possible illegal activities being conducted thereon. The officers went to the business in the guise of truck drivers, and were then given a tour by the defendant of her business premises. The men left the business, saying.they would return at a later date. They reported to the Captain that they observed nothing while on the premises, to indicate any illegal or immoral activity being conducted by the defendant or her employees.

While they were at the premises on October 21, 1987, they discussed with Kim the services available at her business. She explained to them there were three types of services, for $40, $60 and $100, based on the length and thoroughness of the massage and sauna. Kim explained that the $100 massage and sauna included “everything.” What “everything” means is apparently in the ear of the beholder. To Kim it meant everything related to massage and sauna. To the officers, “everything” meant some sort of sexual favors, although no discussion of sexual favors occurred at that time.

On October 22, 1987, the Captain initiated a thorough investigation of Kim’s background. The Captain spoke to a Missoulian reporter who reported that he and a newspaper photographer had gone undercover to Kim’s business in search of a possible story, and had both purchased and received massages. Neither of them had been offered sex by the defendant in exchange for compensation nor had either observed any immoral or illegal activity.

On October 22, 1987, the Captain telephoned officers in Seattle, Washington. Here it was reported to the Captain that there was no record of the defendant having ever been suspected of the charges of any offense during the years she resided and worked in the Seattle area.

The Captain checked the licensing authorities in the state to determine whether she had a proper business license. He found nothing in discord. He also requested of the Federal Immigration and Naturalization Service a thorough search of the records and status of all Koreans in the state of Montana with special emphasis on the defendant’s records and status. That report came back negative. He inquired of the owners of the premises that she was leasing. They advised that they had investigated her reputation and found nothing against her. The Captain investigated her motor vehicle records and found nothing in connection of her operation of an automobile.

On November 10, 1987, the Captain required his two undercover officers again to visit Kim’s premises. They were instructed to pay for a $40 massage and sauna. The massages were administered only after each officer signed an acknowledgment that no sex would be offered or demanded. After the massages, the officers returned to the front of the business establishment and talked to Kim. There they told her that they wanted to have a bachelor party for seven or eight friends at her place of business. She agreed to reserve the premises for their bachelor party. Her understanding was that the purpose was to tease the prospective groom as a part of the bachelor party.

Thus the idea for the bachelor party originated in the minds of the investigating officers. The proposal was not one that would be a part of Kim’s regular business. Following the second account, the officers again reported to their Captain that they had observed no illegal or immoral activity being conducted on Kim’s premises.

On November 19, 1987, six Missoula County Deputy Sheriffs and one Deputy County Attorney, arrived at the premises for the prearranged bachelor party. They had consumed alcohol prior to entering “to give the appearance of being on a party.” They all engaged in teasing the groom about his upcoming marriage. The only activity that hints of sexuality is that one of the woman unbuttoned the groom’s shirt and attempted to remove his belt. While it was the officers who were saying to the prospective groom that they were going to have him “laid” before his marriage, it was then that the officers took Kim aside, and negotiated a proposal for sexual favors. She was placed under arrest. No money changed hands. No sexual activity of any kind ensued.

Under State v. Kamrud (1980), 188 Mont. 100, 611 P.2d 188, this was entrapment pure and simple.

1. The criminal design to solicit (this is a solicitation case) sexual activity did not originate with Kim but with the undercover officers.

2. The officers did more than merely afford Kim with the opportunity to commit the offense, they first committed the offense themselves.

3. They set up the situation by first ingratiating themselves with her even though they found no evidence of any criminal activity in connection with her business.

4. The investigation of her background and the undercover investigations gave no evidence that she was predisposed to commit any offense or that the idea originated with her.

There is no evidence that when on the second visit they proposed a bachelor party that the bachelor party would include prostitution. If that had occurred, they would have so reported to their supervising officer.

The whole mess is a dirty business, but it originated in the Sheriff’s Department.

JUSTICE HUNT and JUSTICE McDONOUGH concur with the foregoing dissent.


text:
    JOHN DUNCAN, Plaintiff and Appellant, v. CITY OF MISSOULA, Defendant and Respondent.
    No. 89-303.
    Submitted on Briefs Aug. 31, 1989.
    Decided Sept. 18, 1989.
    779 P.2d 519.
    Arthur D. Agnellino, Missoula, for plaintiff and appellant.

      Jim Nugent, City Atty., Missoula, for defendant and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

The plaintiff, John Duncan, filed suit against the City of Missoula to prevent the planting of trees in the boulevard area of the sidewalk in front of plaintiff’s downtown property. Following submission of motions on briefs, the District Court for the Fourth Judicial District, Missoula County, dismissed plaintiff’s complaint for failure to state a cause of action. From that judgment, plaintiff appeals. We dismiss the appeal as frivolous.

John Duncan owns various properties in the Missoula downtown central business district. When public sidewalks in front of his building at 227-235 West Main were replaced, two tree well openings were left for the planting of two small-leaved honey-locust trees. Similar plantings were made in the downtown area as sidewalks were repaired.

Duncan expressed opposition to the planting at a City Council Public Works Committee meeting on April 26, 1988. Duncan’s impression from that meeting was that no trees would be planted at Duncan’s location, and Duncan was notified that his wish would be honored.

Tenants in Duncan’s building and others shortly thereafter submitted a petition to the city requesting that trees be planted, the committee recommended planting to the Missoula City Council, which then approved such planting on September 12, 1988. Duncan was informed of the decision, and he proceeded to file a motion for temporary restraining order in the District Court. The temporary restraining order was granted on September 20, 1988. Defendant City of Misso'ula moved the court to dissolve the temporary restraining order and to dismiss the proceeding. On December 2, 1988, the order was dissolved and the proceedings dismissed.

On December 15, 1988, Duncan filed a complaint in the District Court alleging breach of contract, unreasonable interference with property, and arbitrary action. The City moved to dismiss pursuant to Mont. R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. On March 29, 1989, the District Court dismissed Duncan’s complaint.

The District Court was correct in its dismissal of the case. Duncan argues that the commitment of the Public Works Committee was tantamount to an oral contract. No facts bear this out. The Committee’s statement that no trees would be planted if he objected does not create a contract binding upon the City. Not only are the elements of a contract missing here, but no action of the City Council itself created a contract as required by § 7-5-4121, MCA.

Duncan’s argument that the planting of trees on the walkway is not a reasonable use of the public easement also lacks merit. Main Street here is a dedicated public way, and the City Council has broad powers to alter and maintain streets and avenues. Section 7-14-4101, MCA. As such, the City has the right to maintain and improve the street, including the planting of trees.

Finally, Duncan’s contention that the City acted arbitrarily and capriciously must fail. Action taken by a City Council, well within its power to act, cannot constitute arbitrary or capricious action. Accordingly, this appeal is dismissed as frivolous.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, Mc-DONOUGH and GULBRANDSON concur.


text:
    In re the MARRIAGE OF WARREN HARKINS WASH, Petitioner and Appellant, and PEGGY LEE WASH, Respondent and Respondent.
    No. 88-449.
    Submitted on Briefs June 8, 1989.
    Decided Sept. 19, 1989.
    779 P.2d 526.
    V. Joe Leckie, Peterson, Schofield & Leckie, Billings, for petitioner and appellant.
    John L. Pratt, Ask & Pratt, Roundup, for respondent and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

In this case we affirm the division of the marital estate in the appeal of the petitioner Warren Harkins Wash from a judgment of marital dissolution entered in the District Court, Fourteenth Judicial District Court, Golden Valley County.

Warren Harkins Wash had been married to Peggy Wash some eight years before th,eir separation in August, 1984. Warren petitioned for marital dissolution. At the time, he was employed as a bus driver for a school district earning $21,762.00 per year under a contract that had four years to run. Peggy had worked for the Milwaukee Railroad before it ceased operations, and at the time of dissolution was working for the Department of Agriculture, earning $10,653.00 yearly or a net of $419.00 every two weeks. Peggy had a 14-year-old daughter by a previous marriage, for whom Peggy received child support in the amount of $100.00 per month. Husband had a child by a previous marriage for whom he paid $75.00 per month.

The husband had undertaken bankruptcy proceedings which absolved him of his debts except for income tax liabilities. The parties filed separate income tax returns for the years 1984 and 1985 for which he incurred a liability of $5,574.00 in 1984, and $1,257.00 in 1985. The wife, because of her filing a separate income tax return for 1984 had an income tax refund of $453.40.

The parties had more liabilities to divide than assets. One liability was a $1,000.00 debt owed to one Walter Meyers for trucking expenses incurred on Warren’s behalf. The District Court in its decree awarded two cows to the wife, with the obligation attached that they be immediately sold and the proceeds applied to the Walter Meyers’ debt.

Otherwise the District Court decreed that personal property in each of their possessions be kept by the respective parties, that each party pay his or her own legal fees and costs, that the husband deliver to the wife a motorcycle and that the husband turn over to the wife a hackamore and set of reins as her property. The court further provided that each party be responsible for taxes for prior years based on their separate returns.

Warren attacks the division of the marital estate on the grounds that it is inequitable and that the District Court made no findings which sustained the division. He claims that the District Court gave him a negative $6,640.24 in marital assets while giving the wife a positive $6,784.68 in such assets. He arrived at this conclusion, however, by taking the highest value for the motorcycle, $4,000.00 instead of the $1,500.00 for which testimony appears in the record. Moreover, much of his negative result is because of the income taxes he owes for 1984 and 1985.

The District Court further ordered that the husband pay the wife $200.00 per month for three years as maintenance. The husband attacks this provision of the decree claiming that the award of maintenance was not in compliance with § 40-4-203, MCA, and that the court failed to make the necessary findings to support an award of maintenance.

The wife meets the contentions respecting maintenance by pointing out the eight year duration of the marriage, during which the wife worked to contribute to the marital expenses, and that her earnings are approximately $500.00 short of her necessary monthly living expenses, that his contract as a school bus driver had an additional four years to run, the value of which was not computed in the final judgment, and the husband’s monthly earnings of $2,418.00 per month clearly enabled him to pay $200.00 a month in maintenance.

We determine here that the trial court did not abuse its discretion in the award of maintenance to the wife, or in the property disposition since the record fails to disclose an arbitrary exercise of discretion. In Re Marriage of Loegering (1984), 212 Mont. 449, 510, 689 P.2d 260, 266; Jerome v. Jerome (1978), 175 Mont. 429, 431, 574 P.2d 997, 998. When, as in this case, the District Court makes an equitable' distribution of property, and then determines that the property is insufficient to provide for the spouse’s financial needs, it may award maintenance. Hilt v. Hilt (1984), 209 Mont. 140, 145, 679 P.2d 783, 786.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, Mc-DONOUGH and GULBRANDSON concur. OPT SPACES