author: JUSTICE LEAPHART

text:
    DARYL A. STENSTROM, Plaintiff and Appellant, v. STATE OF MONTANA, CHILD SUPPORT ENFORCEMENT DIVISION and THE STATE OF NEBRASKA. Defendants and Respondents.
    No. 96-251.
    Submitted on Briefs October 31, 1996.
    Decided December 20, 1996.
    53 St.Rep. 1423.
    280 Mont. 321.
    930 P.2d 650.

      See C.J.S. States § 310.
    For Appellant: Terry Wallace, Attorney at Law, Missoula.
    For Respondents: K. Amy Pfeifer, Attorney at Law, Department of Public Health and Human Services, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Appellant Daryl A. Stenstrom (Stenstrom) appeals the March 15, 1996 Order of the Twentieth Judicial District Court, Lake County, dismissing his Notice of Appeal and “Complaint for Relief Jury Demand.” We affirm in part and reverse in part.

We consider the following issues on appeal:

1. Did the District Court err in dismissing Stenstrom’s “Complaint for Relief Jury Demand?”
2. Did the District Court err in dismissing Stenstrom’s Notice of Appeal of the May 1, 1995 Order of the Child Support Enforcement Division (CSED)?

Procedural and Factual Background

On October 3, 1994, CSED received an interstate Child Support Enforcement Transmittal from the Lancaster County Attorney’s Office in Lincoln, Nebraska. The referral requested collection of child support arrears allegedly owed by Stenstrom, via income withholding. The alleged debt was based on an Order issued in the district court of Lancaster County, Nebraska on July 17, 1986, finding Stenstrom to be the father of Troy Clark and setting child support payments of $125 per month commencing August, 1986.

The CSED initiated income withholding proceedings against Stenstrom pursuant to § 40-5-401 et seq., MCA. Stenstrom was served a Notice of Intent to Withhold Income which alleged that Stenstrom owed $9,960 as support arrears and had a continuing support obligation of $125 per month. Stenstrom requested an administrative hearing alleging that the paternity determination in the Nebraska order was invalid for lack of hearing or service of process on him and that the child support determination was invalid as Nebraska never served him with any process regarding a determination of support.

A telephonic administrative hearing on Stenstrom’s objection to withholding was held on January 17,1995, more than sixty days after the Notice of Intent was served. At the outset of the hearing, Stenstrom objected to the presence of persons not directly participating in the proceeding, claiming that the hearing should be confidential pursuant to § 40-6-120, MCA, of the Uniform Parentage Act, as the proceeding was one for paternity. The CSED argued that the matter was an income withholding action under § 40-5-414, MCA, and not a paternity hearing. The Administrative Law Judge (ALJ) stayed the hearing to allow briefing by the parties.

In his brief, Stenstrom claimed that a hearing had not been held within forty-five days of service of the Notice of Intent to Withhold as mandated by § 40-5-414(7), MCA, and 46.30.643(1), ARM, and that the hearing should be confidential pursuant to § 40-6-120, MCA.

On May 1, 1995, the ALJ issued an Order Denying Motion for a Closed Telephone Hearing and Order Denying Motion to Dismiss. The Order stated that Stenstrom could not raise paternity as an issue in the proceeding and that the delay in holding the initial hearing was warranted. The hearing was then reset for June 19, 1995.

On June 15, 1995, before the administrative hearing was held, Stenstrom filed a “Complaint for Relief Jury Demand” in District Court. The complaint alleged that the defendant State of Nebraska fraudulently obtained its paternity and support order against him; that defendant State of Montana CSED failed to register the Nebraska order; that a final decision of the CSED would not provide him an adequate remedy and therefore the decision to foreclose the issue of paternity was immediately reviewable under § 2-4-701, MCA; that defendants intentionally and deliberately inflicted extreme emotional and mental pain and anxiety on him; and requested reasonable attorney’s fees, return of wages with interest, damages, and costs. In the complaint, Stenstrom asked the court to declare “defendants’ order null and void from fraud and lack of jurisdiction.” Stenstrom did not request the ALJ or the District Court to stay the impending administrative hearing.

On June 17, 1995, a copy of the summons issued by the Clerk of the District Court was telefaxed to defendant CSED but the complaint was neither telefaxed with the summons nor later mailed to CSED. The complaint was not served on CSED until November 14, 1995, at which time the CSED acknowledged service.

The ALJ convened the administrative withholding hearing on June 19, 1995, despite the absence of Stenstrom or his attorney. On June 29, 1995, the ALJ issued his Income Withholding Decision and Order determining that Stenstrom owed $1,710 for the support of Troy Clark. An amended Order was issued July 11, 1995, reflecting the accurate period of time for which Stenstrom owed child support based upon evidence that Troy was adopted by his step-father in April of 1989.

On July 31,1995, Stenstrom filed a Notice of Appeal in the District Court seeking judicial review of the June 29,1996 Income Withholding Decision on the basis inter alia, that CSED lacked in rem and in personam jurisdiction as a result of his complaint filed in the District Court. Stenstrom had mailed counsel for CSED a copy of the Notice of Appeal on July 27, 1995.

CSED subsequently filed a Motion to Dismiss both the Complaint and the Notice of Appeal with the District Court. The motion to dismiss the complaint was based on Rules 12(b)(1), (lack of subject matter jurisdiction), 12(b)(6), (failure to state a claim for which relief can be granted), 12(b)(7), (failure to join an indispensable party under Rule 19), and failure to exhaust administrative remedies. The motion to dismiss the Notice of Appeal was based on Rules 12(b)(1), (lack of subject matter jurisdiction), 12(b)(2), (lack of personal jurisdiction) and 12(b)(4) and (5) (insufficiency of process and insufficiency of service of process).

After briefing, the District Court issued its Order on March 15, 1996, granting CSED’s motion to dismiss the Notice of Appeal and the “Complaint for Relief Jury Demand,” and adopting the “rationale and authorities cited by Defendant Montana Child Enforcement Division. ...” Stenstrom appeals from this order.

Standard of Review

Motions to dismiss are construed in a light most favorable to the non-moving party and should not be granted unless it appears beyond a doubt that the non-moving party can prove no set of facts in support of its claim which would entitle it to relief. See Hilands Golf Club v. Ashmore (1996), [277 Mont. 324], 922 R2d 469,471-72. In considering the motion, the complaint is construed in the light most favorable to the non-moving party and all allegations of fact contained therein are taken as true. The District Court’s conclusions that Stenstrom’s “Complaint for Relief Jury Demand” and his Notice of Appeal failed to withstand CSED’s 12(b) motions are conclusions of law. Our standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459,898 P.2d 680,686.

Issue One

Did the District Court err in dismissing Stenstrom’s Notice of Appeal of the ALJ’s June 29, 1995 Order finding Stenstrom liable for child support arrearages?

Stenstrom filed the Notice of Appeal on July 31, 1995. In its brief, CSED concedes that Stenstrom timely filed his Notice of Appeal. At the time Stenstrom filed and mailed his Notice of Appeal, mailing was not sufficient service to perfect a judicial review. See Fife v. Martin (1993), 261 Mont. 471, 863 P.2d 403. However, this Court overruled Fife, in Hilands, in which we held that service by mail of a petition for judicial review in accordance with Rule 5, M.R.Civ.P., is sufficient service. Hilands, 922 P.2d at 474. Since an appellate court must apply the law in effect at the time it renders its decision, see Day v. Child Support Enforcement Div. (1995), 272 Mont. 170, 900 P.2d 296, we must, consistently with Hilands, hold that the Notice of Appeal was a timely served request for judicial review. Consequently, the District Court has jurisdiction to hear the petition for judicial review and we therefore remand to the District Court for judicial review of the June 29,1995 Administrative Order.

Issue Two

Did the District Court err in dismissing Stenstrom’s “Complaint for Relief Jury Demand?”

Stenstrom argues that his “Complaint for Relief Jury Demand” was not only a complaint but also a petition for judicial review of the ALJ’s May 1,1995 Order refusing to close the hearing and precluding paternity as an issue in the hearing. Stenstrom argues that he was forced to litigate all of his claims in one petition to avoid later dismissal on the basis of res judicata and hence his complaint for damages and his request for judicial review of an intermediate order were presented together. Stenstrom argues that the District Court erred in dismissing both his claims for damages and his request for judicial review of an intermediate administrative order pursuant to § 2-4-701, MCA.

The CSED alleges that Stenstrom’s request for judicial review of the May 1, 1995 Order was properly dismissed because it failed to conform to the judicial review requirements of § 2-4-702, MCA. Stenstrom alleges that because he requested judicial review of an intermediate administrative order rather than a final administrative order, the requirements of § 2-4-702, MCA, do not apply.

Section 2-4-701, MCA, allows for immediate review of agency action.

A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.

Section 2-4-702, MCA, details the procedures for initiating judicial review of contested cases:

(1) (a) A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter. This section does not limit utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by statute.
(2) (a) Except as provided in subsection (2)(c), proceedings for review must be instituted by filing a petition in district court within 30 days after service of the final decision of the agency .... Copies of the petition must be promptly served upon the agency and all parties of record.

CSED relies on Fife and Rierson v. State (1980), 188 Mont. 522, 614 R2d 1020, for the proposition that a petition for judicial review should be served on a party within “thirty days or thereabouts.” Citing MCI v. Department of Public Serv. Regulation (1993), 260 Mont. 175, 858 P.2d 364, CSED notes that the Supreme Court does not have jurisdiction unless the appellant has strictly complied with the judicial review statutes. While CSED correctly cites the law from the above-mentioned cases, none of the decisions involved judicial review of an intermediate administrative decision pursuant to § 2-4-701, MCA. All of the above cases sought judicial review of final agency action pursuant to § 2-4-702, MCA.

Stenstrom cites to Wilson v. Department of Public Serv. Reg. (1993), 260 Mont. 167, 858 P.2d 368, to illustrate this Court’s recognition of the uniqueness of § 2-4-701, MCA. The Wilsons were allowed to amend their application to the district court for alternative writs to include a § 2-4-701, MCA, request for judicial review. Wilson, 858 P.2d at 370. Although it appears that the Wilsons did not comply with the § 2-4-702, MCA, requirement of filing a petition for judicial review within thirty days, this Court did not decide the issue of whether a request for judicial review of an intermediate administrative order must comply with the procedural requirements for judicial review pursuant to § 2-4-702, MCA. The issue in Wilson was whether or not a final agency decision would provide an adequate remedy for the Wilsons, thus, allowing them to seek immediate review. Wilson, 858 P.2d at 370. This Court has not yet decided whether the procedural requirements of § 2-4-702, MCA, apply to judicial review of intermediate agency actions pursuant to § 2-4-701, MCA.

The role of the Court in interpreting statutory language is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted. Section 1-2-101, MCA; Goyen v. City of Troy (1996), 276 Mont. 213, 221, 915 P.2d 824, 829. The rules of statutory construction require the language to be construed according to its plain meaning. Stratemeyer v. Lincoln County (1996), 276 Mont. 67, 72-73, 915 P.2d 175, 178.

A plain reading of both statutes leads us to conclude that the legislature did not provide that the procedural requirements of § 2-4-702, MCA, apply to immediate review of agency action under § 2-4-701, MCA. Section 2-4-701, MCA, itself does not require adherence to the provisions of § 2-4-702, MCA. The introductory language in § 2-4-702(l)(a), MCA, states that “[a] person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter.” (Emphasis added.) Section 2-4-702(2)(a), MCA, which contains the thirty-day requirement, states that a petition must he filed “within 30 days after service of the final decision of the agency ....” (Emphasis added.) When a person seeks judicial review of an intermediate agency action there is no final decision. Additionally, § 2-4-702(l)(a), MCA, states that “this section does not limit utilization of or the scope of judicial review available under other means of review ....” Section 2-4-701, MCA, is another means of judicial review which is apparently not limited by § 2-4-702, MCA.

Thus, the legislature has not provided that the procedural requirements of § 2-4-702, MCA, apply to immediate review of an intermediate agency action under § 2-4-701, MCA. Nevertheless, in the interest of consistency injudicial review procedures of administrative actions, and until the legislature makes clear the procedures to be followed for immediate review of agency action under § 2-4-701, MCA, we find, for future reference, that the procedural requirements of § 2-4-702, MCA, should be followed when seeking immediate review of agency action under § 2-4-701, MCA.

However, because the legislature failed to clearly provide that the procedural requirements of § 2-4-702, MCA, apply to immediate review of agency action in § 2-4-701, MCA, and a fair reading of § 2-4-702, MCA, limits its application to “final decisions,” it would be patently unfair to apply the procedural requirements of § 2-4-702, MCA, to Stenstrom’s petition for immediate review.

Therefore, we reverse the District Court’s dismissal of Stenstrom’s request for immediate review of the ALJ’s May 1, 1995 Order, precluding paternity as an issue at the hearing, for failure to comply with the requirements of § 2-4-702, MCA. We remand to the District Court to hear the judicial review of the ALJ’s May 1, 1995 Order.

The rules of appellate procedure do not provide that a decision appealed from is automatically stayed. See Rule 7, M.R.App.P. Therefore, contrary to Stenstrom’s claim, filing of the petition for immediate judicial review pursuant to § 2-4-701, MCA, did not automatically stay further proceedings and the ALJ retained jurisdiction to conduct the second administrative hearing setting the support amount.

Stenstrom’s other claims pertaining to the ALJ’s lack of jurisdiction over the second administrative hearing including CSED’s failure to hold the initial hearing within forty-five days of the Notice of Intent to Withhold, and CSED’s failure to give Stenstrom notice of registration of the support order pursuant to § 40-5-188, MCA, must be addressed by the District Court in its review of the May 1,1995 Order.

Stenstrom also appeals the dismissal of his tort claims against the State of Nebraska and the State of Montana in his “Complaint for Relief Jury Demand.” CSED argues that these claims must be dismissed because Stenstrom failed to exhaust his administrative remedies, failed to present his claims to the Department of Administration, and failed to join indispensable parties.

Because we hold that Stenstrom’s “Complaint for Relief Jury Demand” constituted a valid request for immediate judicial review pursuant to § 2-4-701, MCA, CSED’s argument that Stenstrom failed to exhaust his administrative remedies fails.

However, because Stenstrom failed to present his tort claims to the Department of Administration pursuant to § 2-9-301(1), MCA, his tort claims were properly dismissed.

In his “Complaint for Relief Jury Demand,” Stenstrom alleged that both defendants, State of Nebraska and State of Montana, acted fraudulently and with bad faith and that they inflicted extreme emotional and mental pain and anxiety on him. He requested reasonable attorney’s fees, return of wages with interest, damages, and costs.

Section 2-9-301(1), MCA, requires all claims against the state arising under parts 1 through 3 of Chapter 9 to be presented in writing to the Department of Administration.

A complaint based on a claim subject to the provisions of subsection (1) may not be filed in district court unless the claimant has first presented the claim to the department of administration and the department has finally denied the claim.

Section 2-9-301(2), MCA. “Claim” is defined in § 2-9-101, MCA, as:

[A]ny claim against a governmental entity, for money damages only, which any person is legally entitled to recover as damages because of personal injury or property damage caused by a negligent or wrongful act or omission committed by any employee of the governmental entity while acting within the scope of his employment, under circumstances where the governmental entity, if a private person, would be liable to the claimant for such damages under the laws of the state.

A claim for infliction of mental pain and anxiety constitutes a tort claim for personal injury. See Sacco v. High Country Indep. Press, Inc. (1995), 271 Mont. 209,896 P.2d 411. All tort claims against the state must be filed with the Department of Administration before being filed in district court. Where a petitioner has failed to first file with the Department of Administration, the district court lacks jurisdiction to review the matter. Cottonwood Hills, Inc. v. State Dep’t of Labor (1989), 238 Mont. 404, 777 R2d 1301 (dismissing a tort claim when brought with a petition for judicial review for failure to first file with the Department of Administration).

Stenstrom has presented no evidence that he filed his tort claim with the Department of Administration. Instead, he points out that the Department has 120 days in which to respond to a claim, and argues that if he had filed his claim with the Department before filing his petition for judicial review, he would not have been able to meet the alleged thirty-day deadline in which to perfect his judicial review. However, § 2-9-301(2), MCA, provides that the 120-day period tolls the statute of limitation for that time, and thus Stenstrom’s thirty days would not begin to run until after the Department of Administration ruled on his claim or until the 120-day period expired.

Because Stenstrom failed to first file his tort claims with the Department of Administration, the District Court was correct in dismissing his tort claims and we need not address the issue of whether Stenstrom’s tort claims should be dismissed for failure to join indispensable parties.

Conclusion

We reverse the District Court’s dismissal of Stenstrom’s Notice of Appeal of the ALJ’s June 29,1995 Order setting support. We reverse the District Court’s dismissal of Stenstrom’s request for immediate judicial review of the ALJ’s May 1,1995 Order. We affirm the District Court’s dismissal of Stenstrom’s tort claims in his “Complaint for Relief Jury Demand.” We remand to the District Court for judicial review of both the June 29,1995 Order and the May 1,1995 Order of the ALJ in conformity with this decision.

JUSTICES TRIEWEILER, HUNT, NELSON and ERDMANN concur.


source: Caselaw Access Project

author: JUSTICE ERDMANN JUSTICE LEAPHART,

license: Public Domain

text:
    EMMA L. PESCHKE and WILLIAM PESCHKE, individually and on behalf of BYLLI PESCHKE and ALICE PESCHKE, minors; and HOPE PESCHKE, Plaintiffs and Appellants, v. CARROLL COLLEGE, Defendant and Respondent.
    No. 95-327.
    Submitted on Briefs November 7, 1996.
    Decided December 23, 1996.
    53 St.Rep. 1428.
    280 Mont. 331.
    929 P.2d 874.

      See C.J.S. Colleges and Universities § 15.
    For Appellants; James D. Walen; Stacey & Walen; Billings; Norman H. Grosfield; Utick & Grosfield; Helena.
    For Respondent: Thomas Q. Johnson; Keller, Reynolds, Drake, Johnson & Gillespie; Helena.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

Plaintiffs appeal from the judgment entered by the First Judicial District Court, Lewis and Clark County, which ordered that plaintiffs take nothing by reason of their complaint against Carroll College for negligence surrounding a shooting incident which occurred on the Carroll campus. We affirm.

The issues on appeal are as follows:

1. Was there substantial evidence to support the jury verdict?
2. Did the District Court properly instruct the jury?
3. Did the District Court err by allowing the jury to view a video-taped reenactment of the events which occurred prior to the shooting incident?

FACTS

The fact are not in dispute. In May 1990, summer school was in session at Carroll College. Emma Peschke was working in the school cafeteria located on campus in the Carroll Commons. She was a food service employee for the Marriott Corporation which had the food service contract at Carroll.

At approximately 3:00 p.m. on May 18,1990, Father Humphrey J. Courtney had taken his mother to the chapel located in Borromeo Hall where he was conducting Mass. When Father Courtney got to the front door of the chapel he encountered John Aills and a woman companion, Marie Terese. He told Aills and Terese that they would have to keep quiet if they were going to stay in the chapel. Aills and Terese followed Father Courtney into the chapel. Father Courtney left the chapel to find a chair for his mother and then went back to the sacristy to prepare for Mass. When Father Courtney came out of the sacristy and before he started Mass, he observed that Aills had a hand gun that was stuck in the front of his trousers.

Father Courtney started the Mass and Aills began to make noises and disrupt things by hollering and banging on a pew. Father Courtney testified that Aills’ demeanor was boisterous and loud, and that Aills was making grunting or hooting noises. He decided to ask Aills to leave the chapel and walked up to the pew area where he could talk to Aills face to face. He was able to smell alcohol on Aills’ breath and felt that Aills was probably drunk. Father Courtney approached Aills, took him by the arm and escorted him out into the hallway of the dormitory building. Father Courtney then went back to the chapel and was unaware of Aills’ subsequent actions. Aills left the chapel, entered the college cafeteria, and shot Peschke and one other Marriott employee. Peschke was shot in the chest and hospitalized, and the other employee died from her injuries.

On December 3, 1992, Peschke and her family, consisting of husband William and daughters Bylli, Alice, Teresa, and Hope, filed a complaint for negligence and a demand for jury trial against Carroll seeking compensatory and special damages. The complaint alleged that Carroll, through its agents and employees, specifically Father Courtney and others who observed Aills prior to the shooting, was negligent by failing to warn others or call campus security or local police to have Aills arrested, disarmed, or removed from campus. Teresa’s claim for loss of consortium was dismissed prior to trial since she was over the age of eighteen.

A jury trial was conducted between April 17 and 25,1995. The jury returned a special verdict finding that Carroll was not negligent. On April 28, 1995, the District Court entered judgment. Peschke filed a motion for a new trial, which the court denied on June 13,1995. This appeal followed.

ISSUE 1

Was there substantial evidence to support the jury verdict?

In Lee v. Kane (1995), 270 Mont. 505, 893 P.2d 854, this Court discussed our standard of review of a jury verdict in a civil case:

Our scope of review of jury verdicts is necessarily very limited. This Court will not reverse a jury verdict which is supported by substantial credible evidence. This Court has defined substantial credible evidence as evidence which a reasonable mind might accept as adequate to support a conclusion. The evidence may be inherently weak and conflicting, yet it may still be considered substantial. It is well established that if the evidence is conflicting, it is within the province of the jury to determine the weight and credibility to be afforded the evidence. Finally, upon reviewing a jury verdict to determine if substantial credible evidence exists to support the verdict, this Court must view the evidence in the light most favorable to the prevailing party.

Kane, 893 P.2d at 857 (quoting Hansen v. Hansen (1992), 254 Mont. 152, 157, 835 P.2d 748, 750-51).

The tort of negligence has four elements: (1) existence of a duty; (2) breach of that duty; (3) causation; and (4) damages. U.S. Fidelity and Guar. Co. v. Camp (1992), 253 Mont. 64,68,831 P.2d 586,588-89. A plaintiff must establish all of these elements to succeed on an action in negligence. Camp, 831 P.2d at 589.

In the present case, a special verdict form was provided to the jury. The relevant questions on the special verdict were as follows:

QUESTION NO. 1: Was the defendant, Carroll College, negligent? ANSWER:_Yes_No
If you answered Question No. 1 “No”, the Foreperson will date and sign the verdict. You will notify the bailiff, who will return you to Court. If you answered Question No. 1 ‘Yes”, then answer Question No. 2.
QUESTION NO. 2: Was the negligence of Carroll College a cause in fact of the injuries and damages to the plaintiffs?
ANSWER:_Yes_No
If you answered Question No. 2 “No”, the Foreperson will date and sign the verdict. You will notify the bailiff, who will return you to Court. If you answered Question No. 2 ‘Yes”, then answer Question No. 3.
QUESTION NO. 3: Was the negligence of defendant Carroll College a proximate cause of the plaintiffs’ injuries and damages? ANSWER:_Yes_No
If you answered Question No. 3 “No”, the Foreperson will date and sign the verdict. You will notify the bailiff, who will return you to Court. If you answered Question No. 3 ‘Yes”, then answer both Question No. 4 and Question No. 5. [dealing with damage amounts].

•The jury found that Carroll was not negligent and answered the first question “No.” As a result, it did not answer any further questions.

The parties agree that the issue during trial was whether Carroll breached its duty. If it did, then that element of the prima facie case of negligence would have been met and then, and only then, would the jury have had to move on to Questions 2 and 3 relating to causation. By checking “No” to Question No. 1, the jury found that Carroll had not breached its duty. Moreover, the parties agree that the issue on appeal is whether there was substantial evidence to support the jury’s finding that Carroll did not breach its duty. Peschke states in her brief that “[w]e need not concern ourselves with the issues of cause in fact or proximate cause.”

The pretrial order, to which the parties agreed, stated that:

Defendant had the duty to provide reasonable security and a reasonably safe place to work, as well as to maintain its premises in a reasonably safe condition for individuals lawfully on its premises. This may include a duty to warn when reasonable and when the danger is reasonably foreseeable.

The District Court adopted the foregoing language verbatim into its Instruction No. 10 given to the jury.

Peschke argues on appeal that, given Father Courtney’s duty to act as an ordinarily careful person under the circumstances, he should have arrested, disarmed, or removed Aills from the campus under the circumstances that existed at the time. She points to evidence that Aills was obviously intoxicated; had no business being on campus; was loud, boisterous, and disruptive; and was in possession of a handgun.

Peschke also argues that it was not only Father Courtney who was negligent. Peschke claims she presented evidence to show that there was a complete lack of security on the Carroll campus, which may have led to the laxity of Father Courtney and other employees. She notes that at the time of the shooting incident, Carroll did not have a campus police or security department, but relied on the Helena Police Department to provide security. Peschke points out that there was no specific policy regarding intoxicated persons on campus and that it was a judgment call as to whether someone who was intoxicated should be removed from campus. Here, Peschke maintains no judgment was exercised.

Peschke also points out that others observed Aills prior to the shooting. Todd Little, a Carroll student and member of the grounds crew, Margaret Hoy, a student who was working at the desk in Borromeo Hall, and Joyce Schnablegger, a janitor who was doing cleaning work in the dormitory building prior to the shooting, all observed Aills on campus before the shooting. Peschke notes that, while none of these individuals saw a gun, they most likely would have reported Aills before he ever made his way inside the chapel had they been advised as to what procedure to follow with regard to a drunken transient on campus.

Peschke called Mark Warrington to testify as a security expert. Warrington was critical of Carroll for not posting the 911 emergency telephone number on all of its telephones and handbooks. He also criticized Carroll for its lack of radio communications, claiming that only one member of the Carroll crew had a radio.

Peschke is correct in asserting that she presented substantial evidence in support of her claim that Father Courtney, and therefore, Carroll, breached the duty to provide reasonable security and a reasonably safe place to work, as well as to maintain its premises in a reasonably safe condition, which may have included the duty to warn when reasonable and when danger was foreseeable. However, Carroll presented evidence contrary to Peschke’s. In this regard, the jury heard evidence that there had never before been a serious problem at Carroll caused by transients or homeless people visiting or passing through the campus. The jury also heard testimony that there had never before been a serious crime — defined as murder, rape, assault or armed robbery — at Carroll.

Father Courtney testified that Terese mentioned Father Kirchen, another campus priest, which indicated that she was not a stranger to campus. Father Courtney stated that he did not observe Aills threaten anyone or be abusive to anyone. He did see Aills with a handgun, but testified that he was not brandishing the gun or waving it around in any fashion. Father Courtney testified that Aills did not resist when he ushered Aills out of the chapel.

Little testified that he had seen Aills and Terese near campus two different times prior to the shooting and that he was never close enough to Aills to determine whether Aills was intoxicated or not. Hoy stated that Aills and Terese looked like they had been on campus before and knew where they were going. She stated that, although she talked to Terese, she never talked to Aills and was not ever close enough to Aills to determine if he was intoxicated. Schnablegger stated that she was never afraid, nor felt threatened by the couple at any time.

Carroll’s cross-examination of Warrington produced testimony that Warrington had not reviewed crime statistics for Carroll or for the city of Helena and/or Lewis and Clark County. He had never been to the Carroll campus or to the City of Helena prior to the evening before his testimony. Furthermore, there was testimony that, although the 911 number was capable of being used, it was still in the testing process and was not published for use at the time. Testimony also revealed that all of the desk clerks had radios and could communicate with one another and the “night man.”

In this case, the jury was presented with conflicting evidence regarding whether Carroll breached its duty. It determined that no breach had occurred. It is within the province of the jury to determine the weight to be given to evidence presented and to judge the credibility of witnesses, and in reviewing the jury’s verdict, we must view the evidence in the light most favorable to the prevailing party. See Hogan v. Flathead Health Center, Inc. (1992), 255 Mont. 388,842 P.2d 335; Silvis Through Silvis v. Hobbs (1992), 251 Mont. 407, 824 P.2d 1013. We conclude that when the evidence in this case is viewed in the light most favorable to Carroll, the jury’s verdict is supported by substantial credible evidence.

ISSUE 2

Did the District Court properly instruct the jury?

We have previously stated that the district court has discretion when it decides how to instruct the jury, taking into consideration the parties’ theories, and that we will not overturn the court’s decision absent an abuse of discretion. Cechovic v. Hardin & Associates, Inc. (1995), 273 Mont. 104, 116, 902 P.2d 520, 527 (citing Arnold v. Boise Cascade Corp. (1993), 259 Mont. 259, 267, 856 P.2d 217, 222). When we examine whether jury instructions were properly given or refused, we consider the instructions in their entirety, as well as in connection with the other instructions given and the evidence at trial. Cechovic, 902 P.2d at 527.

Peschke argues that the District Court erred when it refused Peschke’s proposed Instruction Nos. 12,18,18A, 19, and 20. Peschke also argues that the court erred when it gave its Instruction No. 12 over Peschke’s objection. We address her arguments in turn.

Peschke’s proposed Instruction No. 12 read as follows:

You are instructed that defendant was negligent as a matter of law.
The plaintiffs have the burden of proving:
1. That the plaintiff Emma Peschke was injured.
2. That defendant Carroll College’s negligence was both the cause
in fact and the proximate cause of the injury to Emma Peschke.
3. The amount of money that will compensate Emma Peschke for her injury.

Peschke requested this instruction based on her contention that Carroll had breached its duty and was therefore negligent as a matter of law. However, this matter is resolved by our decision in Issue 1 that substantial credible evidence supports the jury’s verdict that Carroll was not negligent, that is, that Carroll did not breach its duty to provide reasonable security and a reasonably safe place to work, as well as to maintain its premises in a reasonably safe condition, which may have included the duty to warn when reasonable and when danger was foreseeable.

Peschke’s proposed Instruction No. 12 would have essentially directed a verdict for her on the negligence issue. A directed verdict is proper only in the complete absence of any evidence to warrant submission to the jury. Head v. Central Reserve Life of North America (1993), 256 Mont. 188, 199, 845 P.2d 735, 742. See also Rule 50(a), M.R.Civ.P. Here, in light of our holding in Issue 1 that there was substantial evidence to support the jury’s verdict that Carroll was not negligent, there was certainly not a complete absence of any evidence to submit to the jury, and a directed verdict was therefore not proper. We conclude that the District Court did not abuse its discretion in refusing Peschke’s proposed Instruction No. 12.

Instruction No. 12 given by the District Court, to which Peschke objected, is a verbatim recitation of Montana Pattern Instruction 2.04 and reads as follows:

Every person has a right to assume that every other person will act with reasonable care. In the absence of a reason to think otherwise, it is not negligent for a person to fail to anticipate an injury which can only result from another’s violation of the law or failure to use reasonable care.

Peschke argues that this instruction, while not an inaccurate statement of the law, is incomplete with regard to anticipation of criminal conduct on Carroll’s premises. Peschke maintains that the jury should have been instructed that Carroll had a duty to take precaution to protect persons lawfully on campus from criminal conduct. She notes that this is not a case of a customer walking into a fast food restaurant and suddenly firing into a crowd. Here, according to Peschke, Carroll, through its agents, had contact and conversation with Aills, and noticed that he was in possession of a firearm and was intoxicated.

Peschke’s argument falls short of the mark in that it fails to take into account the key language of Instruction No. 12 that states “[i]n the absence of a reason to think otherwise.” The instruction does not, as Peschke contends, instruct that it is not negligent not to anticipate Aills’ criminal conduct. It specifically poses the question of whether the circumstances created a reason to think otherwise. Peschke argues that there was a reason to think otherwise, and Carroll argues that there was not. This was precisely the issue that was before the jury. The jury found in Carroll’s favor, and we have held in Issue 1 that there was substantial evidence to support the jury’s verdict.

Moreover, we examine jury instructions in their entirety. Cechovic, 902 P.2d at 527. The court’s Instruction No. 10 read as follows:

Defendant had the duty to provide reasonable security and a reasonably safe place to work, as well as to maintain its premises in a reasonably safe condition for individuals lawfully on its premises. This may include a duty to warn when reasonable and when the danger is reasonably foreseeable.

This instruction correctly sets forth the law applicable to this case. When read together with the court’s Instruction No. 12, it fully and fairly instructed the jury on Peschke’s theory of the case. The law requires nothing more. See Cechovie, 902 P.2d at 527-28. We therefore conclude that the District Court did not abuse its discretion when it gave its Instruction No. 12 over Peschke’s objection.

Peschke’s proposed Instruction Nos. 18, 18A and 19 all come from the Restatement (Second) of Torts. Peschke’s proposed Instruction Nos. 18 and 18A, respectively, read as follows:

An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal. A failure to act may be negligent in situations in which the actor fails' to anticipate and guard against the intentional, or even criminal, misconduct of others. In general, these situations arise where the actor is under a special relationship toward the one who suffers the harm, which includes the duty to protect him against intentional misconduct.

Section 302B of the Restatement (Second) of Torts is Peschke’s authority for these two instructions. In addition, Peschke cites to § 344 of the Restatement (Second) of Torts as authority for her proposed Instruction No. 19, which reads as follows:

The defendant is subject to liability to other persons while they are upon defendant’s property, for physical harm caused by the intentional harmful acts of third persons and by the failure of the defendant to exercise reasonable care to:
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable those other persons to avoid the harm, or otherwise to protect them against it.

This Court has not adopted these “Restatement” instructions before, and we need not address whether to do so here, based on our discussion above that the District Court correctly instructed the jury taking into account the parties’ theories of the case.

Finally, we address Peschke’s proposed Instruction No. 20, which read as follows:

The defendant has the duty to exercise ordinary care to keep his premises safe for all persons who foreseeably might come upon them, and to warn such persons of any hidden or lurking danger upon such premises.

In refusing this instruction, the District Court indicated the instruction applied to a situation where a hazard existed on the property, such as an open ditch or damaged sidewalk, and not to a situation like the present case where any perceived risk came from the intentional or criminal actions of individuals on the premises. See Kaiser v. Town of Whitehall (1986), 221 Mont. 322, 718 P.2d 1341; Limberhand v. Big Ditch Co. (1985), 218 Mont. 132, 706 P.2d 491; Corrigan v. W.P. Janney (1981), 192 Mont. 99, 626 P.2d 838. We determine that the court did not abuse its discretion in this regard.

We have considered in their entirety the jury instructions both given and rejected by the court in this case. We determine that, when read together, the instructions that were given correctly set forth the law and take into account the parties’ theories of the case. We therefore conclude that the District Court properly instructed the jury.

ISSUE 3

Did the District Court err by allowing the jury to view a videotaped reenactment of the events which occurred prior to the shooting incident?

Carroll presented a videotaped reenactment to the jury depicting Father Courtney arriving at the chapel, preparing the altar for Mass, in the sacristy preparing for Mass, back at the altar saying Mass, and then going to his apartment upstairs in Borromeo Hall to call the police. Of course, that portion of the tape showing Father Courtney going to his room to call the police did not actually occur, but it was shown to indicate what would have had to occur had he made the decision to call the police. Peschke relies on Rule 403, M.R.Evid., to argue that admission of the videotape was highly prejudicial and misleading for the jury.

Rulings on the admissibility of evidence are within the discretion of the district court and will not be reversed by this Court absent an abuse of discretion. Hansen, 835 P.2d at 753 (citing Cooper v. Rosston (1988), 232 Mont. 186,190, 756 P.2d 1125,1127). Here, we conclude that the District Court abused its discretion when it allowed the videotape into evidence. The contents of the tape allowed the jury to see only Father Courtney’s actions, without any portrayal of Aills’ behavior, compellingly showing the jury a quiet, uninterrupted, and one-sided version of what transpired.

However, we have stated that in order for error to be the basis for a new trial, it must be so significant as to materially affect the substantial rights of the complaining party. Hansen, 835 P.2d at 753. See also Rule 61, M.R.Civ.P. Here, we determine that even though the District Court erred in admitting the videotape, Peschke’s substantial rights were not materially affected. Carroll offered the videotape to show that even if Father Courtney had called the police when he ushered Aills from the chapel, the police could not have responded to the scene in time to prevent the shooting from occurring. Such timing evidence goes to the issue of causation, which the jury did not reach, having determined that Carroll had not breached its duty to warn and was therefore not negligent. Thus, we conclude that the court’s error in this regard was harmless.

Affirmed.

JUSTICES GRAY, TRIEWEILER and DISTRICT JUDGE PURCELL, sitting for CHIEF JUSTICE TURNAGE and DISTRICT JUDGE BUYSKE, sitting for JUSTICE NELSON, concur.

JUSTICE LEAPHART,

concurring in part and dissenting in part. As to issue number one, I agree that there was substantial evidence to support the verdict under the instructions which were given. I concur with the resolution of issue number three. I dissent on issue number two, specifically with regard to the Court’s failure to give plaintiffs’proposed instruction no. 18 and the giving of court’s instruction no. 12 over plaintiffs’ objection.

Peschkes’ primary theory of negligence in this case was that Carroll College could be found negligent based upon the criminal act of the third person assailant. Peschkes were entitled to a jury instruction which set forth their theory of the case; i.e., negligence predicated upon the criminal act of a third person. Peschkes’ proposed instruction no. 18 read as follows:

An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.

This instruction would have specifically advised the jury that, under the right circumstances, a defendant can be found negligent based upon the criminal conduct of a third person. Such an instruction is consistent with our decision in Estate of Strever v. Cline (1996), [278 Mont. 165], 924 P.2d 666, and with § 302B of the Restatement (Second) of Torts. However, the court refused this instruction and did not give any instructions specifically addressing the question of. negligence arising out of the criminal conduct of third persons. The majority holds that court’s instruction no. 12 was adequate. Court’s instruction no. 12 reads as follows:

Every person has a right to assume that every other person will act with reasonable care. In the absence of a reason to think otherwise, it is not negligent for a person to fail to anticipate an injury which can only result from another’s violation of the law or failure to use reasonable care.

The Court suggests that the “in the absence of a reason to think otherwise” language in instruction no. 12 left the door open to Peschkes to argue that Carroll College had a reason to think otherwise and, therefore, was negligent. The Court’s reading of instruction no. 12 is too broad. The average juror would not, based upon the “reason to think otherwise” language in the instruction, assume that liability can be premised upon the criminal acts of third persons. To the contrary, a person not schooled in the law would assume that one person cannot be held civilly liable for the criminal acts of another person.

Until very recently, there has been considerable confusion in the decisions of this Court as to whether there can be recovery for an injury which results from an intervening criminal act of a third person. It was only in June of 1996 when this area of the law was clarified in Estate of Strever, 924 P.2d 666, in which we overruled three prior decisions disallowing recovery based upon intervening criminal acts and adopted the rationale from another contrary line of Montana authority involving intervening criminal acts and held that:

If, under the facts of a given case, an intervening criminal act is one which the defendant might reasonably foresee, then there is no reason why the fact finder should not decide causation the same as with any other intervening causation case.

Estate ofStrever, 924 P.2d at 674. Given the confusion at the judicial level, it is pure folly to assume that, in the absence of a specific instruction, a juror would intuitively understand that a defendant can be found negligent for failing to anticipate the criminal act of a third person. The facts of this case clearly required such an instruction and yet, despite plaintiffs’ requests, there were no instructions given which advised the jury that negligence could be premised upon the criminal acts of a third person.

In Chambers through Chambers v. Pierson (1994), 266 Mont. 436, 441, 880 P.2d 1350, 1353, there was a factual dispute as to whether the plaintiff bicyclist was in plain view when he was hit by the defendant’s truck. The trial court failed to instruct the jury on plaintiff’s theory that he was in plain view and that defendant had the duty to see and is presumed to have seen what was plainly visible. In holding that this constituted reversible error, we stated:

It is well established in Montana that a trial court commits reversible error by refusing to instruct the jury on an important part of a party’s theory in the case. [Citation omitted.]
While other instructions properly addressed the elements necessary to establish negligence, none of the instructions addressed the plain view presumption, an essential part of plaintiff’s case on which the plaintiff was entitled to have an instruction submitted to the jury. We conclude, therefore, that it was reversible error in this case to refuse to give plaintiff’s Proposed Instruction No. 26 because it instructed the jury on the applicable law for plaintiff’s theory of the case.

Chambers, 880 P.2d at 1353-54.

In the present case, liability for the criminal acts of a third person is the very heart of plaintiffs’ case. Yet, there was not one instruction given which references this theory of the case. It escapes me how this esoteric theory is somehow implicit in the very general negligence instructions which were given.

For the above reasons, the plaintiffs were denied a fair trial and I would reverse and remand for a new trial.

JUSTICE HUNT joins in the foregoing concurring and dissenting opinion.


author: JUSTICE ERDMANN JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DALE R. WALKER, Defendant and Appellant.
    No. 96-062.
    Submitted on Briefs August 22, 1996.
    Decided December 27, 1996.
    53 St.Rep. 1435.
    280 Mont. 346.
    930 P.2d 60.

      See C.J.S. Criminal Law § 1417.
    For Appellant: Carrie L. Garber and Jeffrey G. Michael, Deputy Public Defenders, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Billings.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

Defendant Dale R. Walker appeals from the judgment and commitment entered by the Thirteenth Judicial District Court, Yellowstone County, convicting him of felony forgery. We affirm.

The issues on appeal are as follows:

1. Did the District Court err by admitting into evidence still-frame photographs made from the original bank surveillance tape?
2. Did the District Court err in denying Walker’s motion for a mistrial when one of the State’s witnesses testified that he was familiar with Walker from past forgery investigations?
3. Did the District Court err in denying Walker’s motion for a new trial on the ground of jury misconduct?

FACTS

On the afternoon of December 13,1994, a man identifying himself as Terry L. Bergstrom approached teller Mary Jo Kellison at the Security Federal Bank in Laurel, Montana, and attempted to cash a $2000 check. The check was issued by the Edward D. Jones Co. to Terry L. Bergstrom on the custodial account of Wendy Jo Bergstrom. The check was endorsed with both signatures and what appeared to be corresponding social security numbers. Mary Jo requested approval from her supervisor, Vickie Ripley, before cashing the check. Vickie refused to approve the transaction because she did not recognize the customer. She told Mary Jo that the check would be approved if the customer opened an account.

The customer agreed to open both a checking and savings account and presented Mary Jo with a temporary driver’s license which identified him as Terry L. Bergstrom. After completing the paperwork necessary to open the accounts, $1000 was deposited into the checking account, $500 into the savings account, and $500 was distributed to Mr. Bergstrom, along with a new checking account kit containing eight counter checks.

Later that afternoon, Vickie received a call from the Billings branch of Security Federal Bank. Mr. Bergstrom was at the Billings branch trying to cash a $600 counter check and the bank was calling to request a signature verification. Vickie became suspicious since she knew that Mr. Bergstrom had just received $500 cash back from the $2000 deposit he made earlier that day. She told the Billings branch not to cash the check since Mr. Bergstrom did not have a picture ID and there was no signature card on file with the bank.

The Laurel branch of the bank subsequently ran the name “Terry Bergstrom” through their computer and discovered that the bank had processed a mortgage loan in the name of “Tim and Terry Bergstrom.” The bank attempted to contact Terry Bergstrom to find out what was going on. Mary Jo was able to reach the Tim Bergstrom residence and discovered that “Terry L. Bergstrom” was a woman. The bank then contacted the police.

Laurel Police Officer Bryan Fisher obtained the surveillance tape from the bank and asked Officer Brett Lund, a forgery specialist with the Billings Police Department, to view the tape and the forged check. After viewing the signature and the videotape, Officer Lund believed that the signature had been forged by Walker, whom he recognized from previous forgery investigations.

Officer Lund assembled a photographic lineup consisting of six pictures, the first of which was Walker. Officer Fisher showed the lineup to Mary Jo, Vickie, and a third bank employee who had been present during the Bergstrom transaction. All three women identified the man in photo No. 1 as the man who posed as Terry Bergstrom.

On January 19, 1995, the State charged Walker by Information with forgery, a felony, pursuant to § 45-6-325, MCA. On June 12 through 14,1995, a jury trial was conducted which resulted in a guilty verdict. Walker filed a motion for a new trial, which the District Court denied. On September 28, 1995, the District Court entered its judgment and commitment, sentencing Walker to twenty years in the Montana State Prison. This appeal followed.

ISSUE 1

Did the District Court err by admitting into evidence still-frame photographs made from the original bank surveillance tape?

Before trial, the State learned that the bank’s surveillance tape was incompatible with a normal videotape machine. The tape would only play well on the type of machine owned by the bank and the bank would not release its machine because it would be left without surveillance. The State had a copy of the videotape made and a number of still-frame photographs were then produced from the copy. The original videotape was played for the jury on a normal videotape machine but since the quality of the tape was poor, the court allowed the jury to view the copy of the tape. The quality of the copy was not much clearer than the original and the court then allowed the State to admit the still photographs into evidence.

Walker argues on appeal that the District Court erred in admitting the photographs into evidence in violation of the “best evidence rule” as codified in Rules 1001 through 1003, M.R.Evid. Walker claims that the requirements of the best evidence rule required the jury to view the original surveillance tape on the bank videotape machine.

The State argues that Walker did not properly preserve the “best evidence rule” argument for appeal and that even if the District Court erred in admitting the photographs, such error is not grounds for reversing the conviction since Walker cannot demonstrate how the error affected his substantial rights.

During pretrial discussions Walker’s attorney indicated he would object to the admissibility of the photographs if they were offered into evidence. The court suggested that the prosecutor be prepared to lay a proper foundation as to whether the photographs were true copies of the original tape. During the State’s direct examination of Officer Fisher, defense counsel made the following statement to the court after the prosecutor indicated it was time to talk about the videotape and the photographs:

DEFENSE COUNSEL: Well, I’m going to object on the best evidence that the—
THE COURT: Well, you may have to call a person from the bank.
DEFENSE COUNSEL: I don’t know that. The jury has the right
to see the entire tape, as well.
THE COURT: Let’s proceed.

Officer Fisher was then asked to identify the still photographs which were made from the videotape. Defense counsel objected for lack of foundation and the court sustained the objection. The State indicated it would lay the proper foundation for the photographs with its next witness.

The State then called Michael Taylor as a witness. Taylor owns a video and sound store and was the individual who made the copy of the videotape and reproduced the still photographs. After Taylor testified that the copy accurately reflected the content of the original and that the photographs were accurate reproductions from the tape, the State offered the photographs into evidence. Defense counsel objected for lack of foundation and chain of custody problems.

The court directed the attorneys into chambers where it cautioned the prosecutor that a proper foundation would require testimony from a number of witnesses. The court asked defense counsel if he had any doubt about the tape being the original. Defense counsel responded that he did not but indicated that the best evidence was the original tape and not the copy. The court stated that the prosecutor should lay the proper foundation, show the original tape to the jury, and if the quality was poor, lay additional foundation to allow the jury to view the copy. The court would then consider whether it would be necessary for the jury to see the still photographs. The court assured defense counsel that the jury would not view the photographs without seeing the videotape. At that point, defense counsel agreed to waive his prior objection regarding chain of custody and stated “as long as you introduce that videotape and play it, the original, then I don’t care where you go from there.”

Court reconvened and the original tape and copy were admitted into evidence and viewed by the jury. The State then offered into evidence the still photographs, whereupon defense counsel objected on three grounds: (1) lack of foundation; (2) chain of custody; and (3) surprise. The court overruled the first two objections and, after recess, defense counsel agreed that he was not truly surprised that still photographs were going to be used and therefore waived any objection in that regard. After establishing that the photographs depicted events which were taped by the bank surveillance camera during the time Walker was present in the bank, the State offered the photographs into evidence.

PROSECUTOR: Your Honor, at this time I move into evidence
State’s Exhibits 4 through 8 [the still-frame photographs].
THE COURT: Any objection?
DEFENSE COUNSEL: No objection, Your Honor.

This court has consistently held that a party’s failure to object to an alleged error during trial precludes raising the issue on appeal. Hando v. PPG Industries, Inc. (1995), 272 Mont. 146, 151, 900 P.2d 281, 284; Bridger v. Lake (1995), 271 Mont. 186, 193, 896 P.2d 406, 410; State v. Arlington (1994), 265 Mont. 127,151, 875 P.2d 307, 321. Section 46-20-104(2), MCA, provides that failure to make a timely objection during trial constitutes a waiver of the objection except as provided in § 46-20-701(2), MCA.

Walker argues that the transcript shows that defense counsel sufficiently objected to the admission of both the videotapes and the still-frame photographs on ‘best evidence” grounds and that the “objection” was never withdrawn. On the contrary, the record indicates that when the still photographs were offered into evidence, Walker was specifically asked if he had any objections. Defense counsel said no. His prior objections for lack of foundation, chain of custody, and surprise had all been withdrawn or overruled and the photographs were admitted into evidence free from any objection that the evidence violated the provisions of Rules 1001 through 1003, M.R.Evid.

The record clearly indicates that Walker assented to the photographs being admitted once the proper foundation was laid to depict that they accurately represented the contents of the videotape when Walker was present in the hank. Defense counsel’s earlier allusions to the original videotape being the “best evidence” are not sufficient to constitute an adequate and timely objection that admission of the photographs violated the best evidence rule. As a result, the District Court was never given the opportunity to rule on the matter and we therefore hold that Walker is precluded from raising this evidentiary issue on appeal.

ISSUE 2

Did the District Court err in denying Walker’s motion for a mistrial when one of the State’s witnesses testified that he was familiar with Walker from past forgery investigations?

On direct examination, Officer Lund testified that he recognized Walker on the videotape because “I have had past dealings with Mr. Walker ... in regards to past forgery investigations.” Defense counsel objected and the court directed counsel to chambers. The court asked the prosecutor if the State had provided the defendant notice that it intended to introduce evidence of past crimes as required by State v. Just (1979), 184 Mont. 262, 602 P.2d 957 (as modified in State v. Matt (1991), 249 Mont. 136, 814 P.2d 52). The prosecutor admitted that no Just notice had been given. Defense counsel then moved for a mistrial. The District Court denied the motion and stated that, instead, it would admonish the jury to not consider the testimony. Court reconvened and the jury was admonished to completely disregard any references made to prior investigations Officer Lund had conducted which apparently involved Walker.

Walker argues that Officer Lund’s statement was clearly inadmissible. Walker relies on State v. Anderson (1996), 275 Mont. 344, 349, 912 P.2d 801, 804, where we stated that it is inevitable that the introduction of evidence of a prior crime will have some prejudicial effect on a defendant. Moreover, Walker argues that the court’s curative admonition cannot eliminate the taint of Officer Lund’s testimony.

We review a district court’s denial of a motion for a mistrial to determine whether there is clear and convincing evidence that the court’s ruling is erroneous. State v. Rendon (1995), 273 Mont. 303, 306, 903 P.2d 183, 185. We have recently clarified the criteria the district court should use when ruling on a motion for a mistrial. The court will grant a mistrial when there is either a demonstration of manifest necessity or where the defendant has been denied a fair and impartial trial. State v. Ford (1996), [278 Mont. 353], 926 P.2d 245, 249. Nevertheless, this Court’s role remains to determine whether there is clear and convincing evidence that the court’s ruling is erroneous.

In Matt, we announced the modified Just rule and stated that:

Evidence of other crimes, wrongs or acts may not be received unless there has been written notice to the defendant that such evidence is to be introduced.

Matt, 814 R2d at 56. Officer Lund’s statement that he recognized Walker from previous forgery investigations was evidence of other alleged crimes, wrongs, or acts. The State acknowledges that no Just notice was given. Thus, the statement should not have been received into evidence.

We have stated that an error in the admission of evidence may be cured if the jury is admonished to disregard it. State v. Greytak (1993), 262 Mont. 401,404,.865 P.2d 1096,1098 (citing State v. Conrad (1990), 241 Mont. 1, 19, 785 P.2d 185, 190). Moreover, we have held that reversible error exists only where there is a reasonable possibility that the inadmissible evidence might have contributed to the conviction. State v. Cline (1996), 275 Mont. 46, 57-58, 909 P.2d 1171, 1179 (citing State v. Earl (1990), 242 Mont. 279, 283, 790 P.2d 464, 466). In the present case, Officer Lund testified that he recognized Walker on the videotape and that Walker’s handwriting on the forged check was familiar to him. Moreover, the jury had already heard Officer Fisher testify that following the crime he presented a photo line-up to Vickie, Mary Jo, and Lanaya Aafedt, a third bank employee present in the bank on the day in question. Officer Fisher stated that all three women identified Walker from the photo line-up as the man who posed as Terry Bergstrom. Vickie, Mary Jo, and Lanaya also made in-court identifications of Walker during trial.

In light of the entire evidence presented in this case, combined with the court’s prompt admonition to the jury, we determine that Officer Lund’s statement, by itself, did not contribute to Walker’s conviction. Receipt of Officer Lund’s statement into the record was, therefore, harmless error. We conclude that the record in this case does not contain clear and convincing evidence that the District Court’s denial of Walker’s motion for a mistrial was erroneous and we hold that the court did not err when it denied the motion.

ISSUE 3

Did the District Court err in denying Walker’s motion for a new trial on the ground of jury misconduct?

During deliberations the jury submitted a written question to the court requesting the use of a magnifying glass. Defense counsel objected and the court wrote the jury back denying the request. The jury wrote the court a second note as follows:

Your Honor, I feel it is necessary to inform you that after you told us you ‘couldn’t provide us with a magnifying glass’ we discovered that a number of the jurors have bifocals which magnified and one of the jurors had a small strip of plastic used to magnify. These proved very helpful to us, but I hope we didn’t impune [sic] the integrity of this jury.

As a result, defense counsel moved for a mistrial on the grounds that the jury created a magnifying glass on its own and did an investigation outside of what it heard in the courtroom. The District Court stated that it would reserve ruling on the motion for mistrial until after the jury reached a verdict.

Following the jury’s guilty verdict, Walker moved for a new trial, arguing that the jury’s use of a magnification device constituted extrinsic evidence. Walker attached to his supporting brief transcribed interviews from two jurors. The juror statements indicated that members of the jury had used a piece of plastic that one member had taken from her purse to help them identify the defendant and to view a tattoo on the defendant’s arm which had appeared on the videotape during trial. Relying on United States v. George (9th Cir. 1995), 56 F.3d 1078, the District Court denied Walker’s motion.

We review a district court’s ruling on a motion for a new trial to determine whether the court abused its discretion. Hando, 900 P.2d at 283. Absent an abuse of discretion the district court’s decision concerning whether or not to grant a motion for a new trial will be affirmed. State v. Hatfield (1995), 269 Mont. 307, 310, 888 P.2d 899, 901.

On appeal, Walker presents a slightly different argument. He does not argue that use of a magnifying glass constitutes extrinsic evidence, or that use of a magnifying glass is prejudicial per se. Instead, Walker argues that use of the makeshift magnification device constitutes “extraneous prejudicial information” as defined in Rule 606(b)(1), M.R.Evid., resulting injury misconduct. Walker relies on State v. McNatt (1993), 257 Mont. 468, 849 P.2d 1050, and State v. DeGraw (1988), 235 Mont. 53, 764 P.2d 1290, to argue that the State failed to rebut the presumption of prejudice which resulted from the alleged jury misconduct.

Rule 606(b)(1), M.R.Evid., provides that a juror may not testify as to what occurred during the jury’s deliberations except when the information pertains to whether extraneous prejudicial information was improperly brought to the jury’s attention. In State v. Brogan (1995), 272 Mont. 156, 900 P.2d 284, we held that juror affidavits may not be used to impeach a verdict based upon internal influences on the jury. Brogan, 900 R2d at 287 (citing Harry v. Elderkin (1981), 196 Mont. 1, 8, 637 P.2d 809, 813).

We must therefore determine whether use of the magnification device constitutes an external or internal influence upon the jury. It is only if use of the magnification device constitutes an external influence that the juror statements may be considered to determine if extraneous prejudicial information was brought before the jury. Examples of external influence include a juror’s telephone call obtaining information with regard to previous litigation by the plaintiff, visiting the scene of an accident, or bringing a newspaper article about the trial into the jury room for the jurors to see. Brogan, 900 P.2d at 287 (citing Geiger v. Sherrodd (1993), 262 Mont. 505, 510-11, 866 P.2d 1106, 1109).

We turn to three recent decisions from the Ninth Circuit Court of Appeals for direction. In George, the court concluded that the jurors’ use of a magnifying glass, in and of itself, did not constitute extrinsic evidence and that no new evidence resulted. George, 56 F.3d at 1084. In United States v. Brewer (9th Cir. 1986), 783 F.2d 841,843, the court held that the use of a magnifying glass was indistinguishable from a juror’s use of corrective eyeglasses to examine evidence. Finally, in United States v. Miranda (9th Cir. 1993), 986 F.2d 1283, 1286, the court noted that a defendant alleging juror misconduct involving a magnifying glass conceded, “as he must,” that a magnifying glass is not extrinsic evidence. It is clear that a jury’s use of a magnification device does not constitute extrinsic evidence.

Walker’s argument that use of the magnification device created “extraneous prejudicial information” as opposed to “extrinsic evidence” presents only a subtle distinction. Since a jury’s use of a magnifying glass does not constitute extrinsic evidence, we conclude that such use cannot be considered an external influence exposing the jury to extraneous prejudicial information. The jury’s use of the makeshift magnification device was an internal influence on its deliberation and the juror statements may therefore not be used to impeach the verdict.

Moreover, even if we were to assume that the magnification device was an external influence, thus allowing the juror statements to be considered, the record does not clearly indicate that the jury’s use of the magnification device prejudiced the defendant. One of the jurors said in her statement that use of the plastic strip did not help identify the defendant and that “you really could not identify that as the defendant” and “it only made us, ah, even more unsure.” Thus, there was no threshold showing of prejudice for the State to rebut.

We conclude that the District Court did not abuse its discretion when it denied Walker’s motion for a new trial based on jury misconduct.

Affirmed.

JUSTICES NELSON, HUNT and LEAPHART concur.

JUSTICE TRIEWEILER

concurring in part and dissenting in part.

I concur with the majority’s conclusion resolving the first and third issues.

I dissent from the majority’s conclusion that Detective Brett Lund’s testimony regarding other alleged crimes committed by the defendant was harmless error.

I do not disagree with the majority’s recitation of the facts, nor its analysis of the law, which pertain to that issue. I do disagree with its conclusion that based on other evidence, and the court’s admonition to the jury, there is no reasonable possibility that the inadmissible evidence contributed to Walker’s conviction.

Walker was charged with and convicted of forgery. The jury was advised by a detective employed by the Billings Police Department that he had investigated Walker for the very same kind of crimes in the past and was familiar with him on that basis. Evidence that a person accused of a crime has committed similar acts in the past is among the most prejudicial types of evidence that can be offered. That is why evidence of prior acts is normally inadmissible. See Rule 404(b), M.R.Evid. That is why we have established procedural safeguards for consideration of such evidence, even when it falls within one of the exceptions to the general rule. See State v. Matt (1991), 249 Mont. 136, 814 P.2d 52.

Although there was other evidence from which the jury could have found the defendant guilty of forgery, the jury apparently did not consider the evidence conclusive, or it would not have bothered sending two notes to the District Judge in which they requested better equipment with which to view the bank’s video tape, and told the court that they had used a magnifying glass to view the still photos taken from the bank’s video tape. The jury’s uncertainty about the identity of the actual forger was apparently caused by the fact that Walker’s arms and hands were tattooed and no tattoos were reported by eye witnesses who observed the forger on the day in question.

Furthermore, I would conclude that the District Court’s admonition, while well intended and consistent with our prior decisions, accomplished absolutely nothing. In fact, the course of events following Detective Lund’s improper testimony obviously emphasized its significance. First of all, Walker’s counsel was required to state an objection on the record; then the trial judge and attorneys retreated from the courtroom for a discussion outside the presence of the jury; and finally, upon their return to the courtroom the jury was instructed by the court to disregard Detective Lund’s previous testimony regarding prior involvement in forgery investigations. By that time, it had to be obvious to the jury that Detective Lund had inappropriately told them something very significant, otherwise the defendant and the District Court would not have been so concerned about it.

While there may be other circumstances in which a proper admonition to a jury could be effective, this was not one of them. The jury was simply told that the Billings Police Department had reason to believe that this person, accused of forgery, had forged other documents in the past. That was not the kind of information that could be erased from the minds of those entrusted with the responsibility for deciding Walker’s guilt.

For these reasons, I dissent from the majority’s resolution of Issue 2. I would conclude that because testimony was given regarding crimes allegedly committed by the defendant in the past without compliance with those procedural safeguards which we held were necessary in Matt, Walker was denied a fair trial and the District Court, therefore, abused its discretion when it denied his motion for a mistrial.