author: JUSTICE HARRISON JUSTICE GRAY,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TERRY ALLEN LANGFORD, Defendant and Appellant.
    No. 93-368.
    Submitted on Briefs August 18, 1994.
    Decided October 4, 1994.
    51 St.Rep. 962.
    267 Mont. 95.
    882 P.2d 490.

      For Appellant: William F. Hooks, Appellate Defender, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Joseph E. Thaggard, Ass’t Attorney General, Helena; and Christopher Miller, Powell County Attorney, Deer Lodge.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Terry Allen Langford (Langford) appeals from a jury verdict in the District Court for the Third Judicial District, Powell County, convicting him of burglary and deliberate homicide. We affirm.

The following issues are presented on appeal:

1. Did the District Court violate Langford’s right to represent himself at trial?

2. Did the District Court err by admitting evidence of a shooting incident which occurred when officers were retaking the maximum security unit of the Montana State Prison?

3. Did the District Court err when Judge Mizner refused to recuse himself?

4. Did the District Court abuse its discretion when it admitted into evidence autopsy photographs of the five inmate victims?

On the morning of September 22, 1991, nine maximum security inmates at the Montana State Prison gained control of the maximum security unit of the prison. These prisoners were able to release the other maximum security prisoners. When officers regained control of the building approximately five hours later, they discovered that five protective custody inmates had been killed in the riot, and others severely beaten.

The maximum security unit of the Montana State Prison is divided into six blocks with two central control cages. “A Block,” “B Block,” and “C Block” are located on the west side of the building along with the main control cage which controls operations for A, B, and C Blocks. “D Block,” “E Block,” and “F Block” are located on the east side of the building along with the satellite control cage which controls operations for D, E, and F Blocks. Six exercise yards are located in the center of the maximum security unit between Blocks A, B, C and Blocks D, E, and F. At the time of the riot, there were 68 inmates in the maximum security unit. Ten protective custody inmates were located on D Block, and Langford was housed on B Block.

On the morning of September 22, 1991, thirteen inmates were using the exercise yards. Officers escorted three of these inmates from exercise yard five to C Block. Nine of the remaining inmates broke through the wire fences separating the exercise yards and entered yard five. From there, they ran through an open door into the west side of the maximum security unit. Once inside the building, the prisoners attacked the main control cage on the west side of the building. Approximately 45 minutes later, the inmates gained access to the satellite control cage on the east side of the building by burning a hole in the bulletproof glass. Once inside that cage, they obtained keys that opened the main control cage. The inmates then began opening cell doors and releasing other maximum security prisoners.

Some maximum security prisoners made their way onto D Block where they attacked the protective custody inmates. Five protective custody inmates were killed in the riot, and others were severely beaten.

The prison’s Disturbance Control Team entered the maximum security unit and regained control of the unit at approximately 2 p.m. the same day. Officer Robert Geach (Geach), a member of the team, entered C and B Blocks while securing the unit. Geach testified that when he was on B Block he ordered the prisoners to strip and get on the ground as a precautionary measure against hidden weapons. Geach testified that Langford neither stripped nor went to the ground when commanded to do so. According to Geach, Langford made a move towards him and Geach then fired a warning shot into the door next to Langford. After the shot, Langford complied with Geach’s commands.

On February 3, 1992, Langford was charged by information with one count of burglary in violation of § 45-6-204, MCA; and five counts of deliberate homicide in violation of § 45-5-102(l)(b), MCA.

In pre-trial motions, Langford moved the court for new counsel. Instead, the court appointed co-counsel. Langford later requested that he be allowed to represent himself. The court denied this request. Langford also made a motion in limine to exclude any evidence of the shooting incident, and moved the court for a substitute judge. The court denied these motions.

Following a jury trial, Langford was convicted of burglary and one count of deliberate homicide. He was sentenced to 20 years in prison on the count of burglary and life imprisonment on the count of deliberate homicide. The sentences were to run concurrently to each other and consecutively to the sentences Langford was already serving.

I

Did the District Court violate Langford’s right to represent himself?

At a pre-trial hearing held November 12,1992, Langford informed the court that he wished to “fire” his appointed counsel, and represent himself. He also informed the corut that he was seeking out-of-state counsel to represent him. The court did not allow Langford to represent himself, and continued the representation of Langford’s two court appointed attorneys. Langford asserts that the court violated his right to represent himself.

The right to assistance of counsel is embodied in the Sixth Amendment of the United States Constitution and Article II, Section 24 of the Montana Constitution. The Sixth Amendment has been interpreted to include a defendant’s right to represent himself. Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. This Court has interpreted Article II, Section 24 of the Montana Constitution to provide the right of the defendant to proceed pro se. State v. Colt (1992), 255 Mont. 399, 403, 843 P.2d 747, 749.

Under Montana statute, a defendant may waive the right to counsel when the court ascertains that the waiver is made knowingly, voluntarily, and intelligently. Section 46-8-102, MCA (1991). The Ninth Circuit Cotut of Appeals utilizes the additional requirement that the request to represent oneself must be unequivocal. United States v. Robinson (9th Cir. 1990), 913 F.2d 712, 714. In the recent Colt case, we discussed the additional criterion of an unequivocal request but did not specifically adopt it. Colt, 843 P.2d at 751. We do so today.

First, Langford argues that, contrary to the requirements of Faretta, the District Court did not conduct a proper substantive inquiry of the defendant to satisfy itself that the defendant was in fact knowingly and intelligently foregoing the benefits of counsel. We disagree.

Faretta does not mandate any particular sort of questioning or inquiry, so long as the trial court satisfies itself that the defendant is “aware of the dangers and disadvantages of self-representation, so that... “he knows what he is doing and his choice is made with eyes open.’” Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. Similarly, we stated in Colt that we do not require district courts to rigidly adhere to a set of requirements in ascertaining whether a criminal defendant has made a knowing and intelligent waiver of his right to counsel. Colt, 843 P.2d at 751. We also stated that:

t is the district court judges who consider, assimilate, and absorb the nuances of each individual case. They are not constrained, as we are, to gamering all of their information from a cold record. ... So long as substantial credible [evidence] exists to support the decision of the District Court... it will not be disturbed on appeal.

Colt, 843 P.2d at 752; citing State v. Plouffe (1982), 198 Mont. 379, 386, 646 P.2d 533, 536.

While there is no question that the trial court must, on the record, ensure that the defendant is voluntarily and intelligently exercising his free will in choosing to represent himself, we hold that the record in this case supports our conclusion that the District Court properly determined in its various colloquies with Langford that his waiver was not voluntary, intelligent, and knowing; and that he was not competent to represent himself.

Next, we hold that Langford’s request was equivocal. In discussing the requirement that the waiver of the right to assistance of counsel must be unequivocal, the Ninth Circuit stated that:

The requirement that a request for self-representation be unequivocal also serves an institutional purpose: It prevents a defendant from taking advantage of the mutual exclusivity of the rights to counsel and self-representation. A defendant who vacillates at trial between wishing to be represented by counsel and wishing to represent himself could place the trial court in a difficult position: If the court appoints counsel, the defendant could, on appeal, rely on his intermittent requests for self-representation in arguing that he had been denied the right to represent himself; if the court permits self-representation the defendant could claim he had been denied the right to counsel. See Meeks [v. Craven (9th Cir. 1973)], 482 F.2d [465] at 468. The requirement of unequivocality resolves this dilemma by forcing the defendant to make an explicit choice. If he equivocates, he is presumed to have requested the assistance of counsel.

Adams v. Carroll (9th Cir. 1989), 875 F.2d 1441, 1444. A defendant who vacillates in pre-trial proceedings places the trial court in the same difficult position as does a defendant who vacillates at trial.

In the present case, during a pre-trial hearing held on November 12, 1992, Langford made the following statement to the court:

Well, I’m aware of the statute ... where it says you can let me make a waiver of counsel if I make a ... knowing and a competent and intelligent decision. Well, clearly I know what I’m doing, I’m waiving my right to counsel. As far as competent, I think that’s covered under do I know what I’m doing, and it could be argued whether it was an intelligent decision or not, I’m sure. But as far as I’m concerned, my butt is the one that’s on the line.

Standing alone, Langford’s request appears to be unequivocal. However, upon reviewing the record as a whole, it becomes apparent that the request was equivocal.

Langford’s attorney, Lawrence Murphy, first made a motion to withdraw on May 19, 1992. Mr. Murphy attached a letter from Langford to the motion which expressed Langford’s dissatisfaction and his desire to retain an attorney who would, in his mind, better represent him. In the letter Langford does not express the desire to represent himself. On June 22, 1992, Mr. Murphy withdrew his motion to withdraw as counsel stating that after a lengthy meeting with Langford, Langford had requested to retain him. On October 1, 1992, Langford filed a pro se motion requesting that he be represented by different counsel. Nowhere in the motion does Langford request to represent himself. On October 14, 1992, Langford filed another pro se motion requesting that he be represented by replacement counsel at a pre-trial hearing scheduled for October 15, 1992. Nowhere in this motion does Langford request to represent himself. In fact, the motion states in part:

10. The Defendant does not feel that he can remotely represent himself at such a hearing.
11. The Defendant is a [sic] isolated-out-of-sight-out-of-mind-inmate [sic] who could not possibly make any type of legal arguement [sic] or argue any legal points that the State or Judge or Councel [sic] will undoubtedly bring up.
12. The Defendant is unaware of at least 2/3rds of his rights and needs someone to represent him at this hearing who will protect those rights.
13. A person, in this case the Defendant, going up against such opposing forces and being uneducated in the law can not [sic] make any type of knowing or intelligent decisions or waivers that he will be forced to do at such a hearing.

At the pre-trial hearing held October 15, 1992, the court ordered that Mr. Murphy continue as counsel and appointed Edmund Sheehy, Jr. as co-counsel for Langford. Based on Langford’s statement that he had no objection to the new arrangement, the court denied Langford’s motion for new counsel. Finally, at the November 12, 1992 pre-trial hearing, after Langford stated that he wished to “fire” his appointed counsel and waive his right to counsel, he informed the court that he was continuing to seek the services of other counsel.

Taken as a whole, the record clearly reflects the fact that Lang-ford’s request to represent himself was equivocal. It is presumed that a defendant who equivocates has requested assistance of counsel. Carroll, 875 P.2d at 1444. Thus we hold that the District Court did not deny Langford the right to represent himself.

II

Did the District Court err by admitting evidence of a shooting incident which occurred when officers were retaking the maximum security unit of the Montana State Prison?

Langford filed a motion in limine to exclude any mention of Officer Geach firing a warning shot near Langford when Geach, along with other officers, was in the process of retaking the maximum security unit. The District Court denied the motion.

Langford argues that the court erred in allowing the evidence of the shooting incident because it was irrelevant, constituted inadmissible character evidence, and was unduly prejudicial. The State asserts that the evidence was admissible as part of the corpus delicti.

Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Rule 401, M.R.Evid. Here, the burglary was charged based on the allegation that Langford had “knowingly entered or remained unlawfully in an occupied structure, the D Block area of the maximum security unit, with the purpose to commit an offense therein, namely, Riot.” Riot is defined by statute as follows:

A person commits the offense of riot if he purposely and knowingly disturbs the peace by engaging in an act of violence or threat to commit an act of violence as part of an assemblage of five or more persons, which act or threat presents a clear and present danger of or results in damage to property or injury to persons.

Section 45-8-103(1), MCA (1991). Taken in the context of officers retaking the maximum security unit following a violent riot, Langford’s defiance of an officer’s order tended to show his willingness to disturb the peace and participate in the riot. Thus, evidence of the shooting incident was relevant as it tended to make a fact of consequence more or less probable.

Next, Langford argues that evidence of the shooting incident should not have been allowed as it was character evidence of other bad acts. Generally, evidence of other crimes, wrongs or acts is inadmissible to prove the character of the person in order to show that he acted in conformity with that conduct; but such evidence may be admissible for other purposes. See Rule 404(b), M.R.Evid. This Court has recognized that, as an exception to the “other crimes” rule, the State may present the entire corpus delicti of the charged offenses including matters closely related to the offense and explanatory of it. State v. Hage (1993), 258 Mont. 498, 506, 853 P.2d 1251, 1256; citing State v. Riley (1982), 199 Mont. 413, 426, 649 P.2d 1273, 1279.

In Hage, evidence was allowed that several hours before he killed the victim, the defendant had threatened to kill someone other than the victim and was waving a gun around. Hage, 853 P.2d at 1256. This Court upheld the admission of that evidence because it was relevant to the defendant’s state of mind and actions at the time he committed the homicide. Hage, 853 P.2d at 1256.

Hage is applicable to the present case. Here, Officer Geach testified that Langford disobeyed his command to strip and go to the ground and that Langford made a move towards him. Officer Patrick Huber of the disturbance control team testified that Langford had a defiant look when these actions took place. This evidence goes to Langford’s state of mind at the time that the riot was taking place. The evidence of the shooting incident was admissible as it was closely related to the underlying offenses and explanatory of them.

Finally, Langford argues that the evidence of the shooting incident was unduly prejudicial. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Rule 403, M.R.Evid. Whether the probative value is outweighed by the prejudicial effect is within the trial court’s discretion; and the ruling of the trial court will not be disturbed unless there is a manifest abuse of discretion. State v. Scott (1993), 257 Mont. 454, 462-63, 850 P.2d 286, 291.

The evidence of the shooting incident is relevant to demonstrate Langford’s state of mind during the riot. Langford fails to demonstrate how the evidence is substantially more prejudicial than it is probative. We hold that the District Court did not abuse its discretion in admitting the evidence.

Ill

Did the District Court err when Judge Mizner refused to recuse himself?

On November 12, 1992, Langford moved to have Judge Mizner recuse himself arguing that Judge Mizner had presided over four other cases arising from the prison riot, and that he had previously sentenced Langford to death in an unrelated case. Judge Mizner denied the motion.

A Montana statute provides that a party is entitled to one substitution of a district judge. Section 3-1-804, MCA (1991). However, the right to move for a substitute judge is deemed waived if no such motion is made before a judge has been assigned to the cause for ten days after an information has been filed. Section 3-1-804, MCA (1991). Montana statute also provides that if a party files an affidavit alleging facts showing personal bias of the presiding judge, the judge may proceed no further in the cause. Section 3-1-805, MCA (1991). However, such an affidavit must be filed more than 30 days before the date set for hearing or trial. Section 3-1-805, MCA (1991).

Trial in this matter initially was set for August 3, 1992. After several continuances, the case went to trial on November 24, 1992. Langford moved the court to have Judge Mizner remove himself on November 12, 1992. Langford concedes that his motion was not timely filed under the above-listed statutes. He contends that the timeliness of his motion is not fatal in this case because this Court has held that where a trial judge is to be the trier of fact and participates in pre-trial negotiations which subsequently fail, the trial judge should, upon request, step down. Shields v. Thunem (1986), 220 Mont. 449, 452, 716 P.2d 217, 219.

In Shields, on the day of the trial, the judge acted as an arbitrator and mediator of the parties’ dispute by placing the parties in separate rooms; taking offers and counter offers to the parties; and hearing some of the respective arguments of the parties ex parte. Shields, 716 P.2d at 217-18. In that situation, we held that the judge should have recused himself because of his extensive involvement in pre-trial negotiations. Shields, 716 P.2d at 219. Here, there is no indication of such involvement in pre-trial negotiations on the part of the court; nor was the court the trier of fact. Thus, our ruling in Shields is inapplicable.

In addition, Langford urges us to adopt the position, taken by the Arizona Supreme Court in State v. Vickers (Ariz. 1984), 675 P.2d 710. The Vickers court recognized that it had held that a judge need not disqualify himself even though he had knowledge of prior bad acts if the acts ordinarily would come to light in a presentence report. Vickers, 675 P.2d at 712. However, the Vickers court then held that an appearance of impropriety was created when a judge who had passed a capital sentence on a defendant in an unrelated case presided over the same defendant’s subsequent case, in which a capital sentence was a possibility. Vickers, 675 P.2d at 712. We decline to adopt Vickers.

We conclude that it does not create a per se appearance of impropriety for a trial judge to preside over a potential capital case involving the same defendant the judge had previously sentenced to death in an unrelated case. Nothing in the record before us indicates that Judge Mizner was prejudiced against Langford. We hold that the court did not err by denying Langford’s motion for recusal.

IV

Did the District Court abuse its discretion when it admitted into evidence autopsy photographs of the five inmate victims?

During the trial, the State introduced several autopsy photographs of the homicide victims. Dr. Gary Dale, a pathologist, used the photographs during his testimony to explain the causes of death. Langford contends that the photographs’ probative value was outweighed by the danger of unfair prejudice. See Rule 403, M.R.Evid. The State contends that the evidence corroborated the testimony of inmate witnesses whose credibility was in question, and aided Dr. Dale’s testimony.

As was previously stated, whether the probative value of the evidence is outweighed by the prejudicial effect is a matter within the discretion of the trial court; and the court’s decision will not be overturned absent a manifest abuse of discretion. Scott, 850 P.2d at 291. Our decision in another of the prison riot cases regarding the same issue is controlling. See State v. Gollehon (1993), 262 Mont. 293, 864 P.2d 1257.

In Gollehon, we held that while the photographs depicted the brutality and viciousness of the crimes committed, they were not unduly prejudicial. Gollehon, 864 P.2d at 1263. We stated that we will not demand that a trial be sanitized to the point that important and probative evidence must be excluded. Gollehon, 864 P.2d at 1263; citing State v. Doll (1985), 214 Mont. 390, 400, 692 P.2d 473, 478.

Langford argues that this case is distinguishable because jurors asked to see the photographs during deliberations and, after establishing that the jury could reach a verdict without them, the court denied the request. Langford also points to the fact that after the verdict was rendered, the court explained to the jury that it had not allowed them access to the photographs during deliberations because it felt that if they had viewed them in the jury room, the photos would have been unduly prejudicial. Langford’s arguments have no merit.

In another case rising out of the same prison riot, when discussing the trial court’s ruling regarding autopsy photos and undue prejudice, we noted that it was most important that the court had not allowed the photographs into the jury room. State v. Cox (Mont. 1994), 879 P.2d 662, 669-70, 51 St.Rep. 680, 685. We hold that the District Court used sound discretion in allowing the probative photographs into evidence, and then determining that there was a greater chance of prejudice had the photographs gone to the jury room. We will not disturb the District Court’s ruling, as there was not a manifest abuse of discretion in admitting the photographs into evidence.

The judgment of the District Court is affirmed.

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

JUSTICE GRAY,

specially concurring.

I concur in the Court’s opinion except as to issue 2. I specially concur with regard to that issue, agreeing with the result reached by the Court but not with all that is said in reaching that result.

Specifically, I am unconvinced that the shooting incident which occurred when officers were in the process of retaking the maximum security unit was relevant to any “fact that is of consequence to the determination of the action” under Rule 401, M.R.Evid. Nor am I convinced that the shooting incident, which occurred after the offenses with which Langford was charged had been committed, falls within the corpus delicti of those offenses.

Nonetheless, in the context of the overall evidence of Langford’s acts in participating in the riot, I conclude that admission of the evidence was error concerning which Langford did not establish any prejudice. Thus, it is my view that admission of the shooting incident evidence was harmless error by the District Court, not reversible by this Court.


source: Caselaw Access Project

author: JUSTICE HARRISON JUSTICE TRIEWEILER

license: Public Domain

text:
    IN RE THE MARRIAGE OF DELILAH HANEY, Petitioner and Respondent, and GUY L. HANEY, Respondent and Appellant.
    No. 93-335.
    Submitted on Briefs April 28, 1994.
    Decided October 13, 1994.
    51 St.Rep. 981.
    267 Mont. 107.
    882 P.2d 497.

      For Appellant: Kenneth R. Olson, Attorney at Law, Great Falls.
    For Respondent: Susan L. Weber, Attorney at Law, Great Falls.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Guy L. Haney (Guy) appeals an order of the Eighth Judicial District Court, Cascade County, which awarded Delilah Haney (Delilah) maintenance. We reverse.

Guy and Delilah were married for thirty-five years. Delilah raised the couple’s five children who have attained the age of majority. Delilah filed for dissolution oñ June 13, 1990. Guy filed his response and the parties agreed to divide the marital assets and debts. They could not, however, agree on the maintenance issue; Guy argued that he should pay maintenance in the amount of $300 per month for two years, while Delilah contended that she should be awarded $300 per month for five years.

Notwithstanding the contention on the part of both Guy and Delilah that $300 per month was adequate, with the only question being the number of years duration, the District Court awarded Delilah permanent maintenance of $400 per month. In addition, that amount would increase to $600 per month if Delilah became unemployed by reason of age, sickness or disease.

The court found that Delilah worked three jobs, seven days a week, for a net pay of $435 per month while her expenses totaled $875. The court found that Guy had the ability to earn substantially more income than Delilah, referring to his snow removal contract and various equipment which he owned. After deducting Guy’s living expenses, the District Court concluded that Guy would net in excess of $210 per month over and above the $300 maintenance award to Delilah. That was the apparent basis for the District Court’s conclusion that Guy had the ability to pay $400 per month maintenance to Delilah.

Guy presents the following issue:

Did the District Court err by awarding Delilah $400 per month permanent maintenance?

It is well settled that this Court will scrutinize the district court’s legal conclusions and examine whether the court interpreted the law correctly. In re Marriage of Danelson (1992), 253 Mont. 310, 317, 833 P.2d 215, 219-20. After an equitable division of marital property, a district court is required to apply the two-prong test of § 40-4-203, MCA, to determine whether a maintenance award is appropriate. See In re Marriage of Eschenbacher and Crepeau (1992), 253 Mont. 139, 142-43, 831 P.2d 1353, 1355-56. Section 40-4-203, MCA, provides in pertinent part:

(1) In a proceeding for dissolution of marriage ... the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
(a) lacks sufficient property to provide for [her] reasonable needs; and
(b) is unable to support [her] self through appropriate employment.... [Emphasis added.]

Here, the District Court found that Delilah worked three jobs, seven days a week, for net pay of $435 per month while her expenses totalled $875 per month and that she was unable to support herself through appropriate employment. The court, however, did not make a finding concerning whether Delilah lacked sufficient property to provide for her reasonable needs. “Sufficient property” is property which is “income-producing rather than income-consuming property.” Marriage of Eschenbacher, 831 P.2d at 1356.

In this case, a review of the record reveals that the majority of the property awarded to Delilah was income-consuming property; a car, the trailer house with adjoining land and household furnishings. However, Delilah also received income-producing property — one-half of Guy’s Teamsters pension. The court failed to discuss the pension award and to set forth when payments could be anticipated under the pension and to then consider the relationship to the maintenance award. We conclude this is a basis for reversal.

Without any explanation on the part of the court as to the reason it disregarded the agreement of the parties that $300 per month for maintenance was appropriate, the District Court awarded Delilah permanent maintenance of $400 per month with an escalation to $600 per month if Delilah became unemployed.

Under Rule 54(c), M.R.Civ.P., “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” While that gives a broad discretion to the trial court, the discretion under Rule 54(c) must be viewed in light of the nature of the case. In re Marriage of Hughes (1989), 236 Mont. 427, 430, 770 P.2d 499, 501. Adistrict court may not grant relief not requested when the facts and issues necessary to support such relief have not been tried and proven at trial. Matter of George Trust (1992), 253 Mont. 341, 345, 834 P.2d 1378, 1381. In dissolution cases, the court’s power to grant relief is strictly statutory, and with respect to maintenance the court must make specific findings under § 40-4-203, MCA. Marriage of Hughes, 770 P.2d at 501.

In our review of the record and our application of the statutory criteria to the evidence produced, we are unable to find support for the exercise of the court’s discretion to award permanent maintenance when maintenance only for a term of years was requested; to award maintenance of $400 per month when $300 per month was requested; and finally to award an automatic escalation to $600 per month if Delilah becomes unemployed.

Accordingly we reverse and remand for consideration of this issue in accordance with this opinion.

Reversed and remanded.

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

JUSTICE TRIEWEILER

specially concurring.

I specially concur with the majority opinion which reverses the judgment of the District Court. However, I do not agree with the basis for reversal set forth in the majority opinion, nor do I agree that this case should be remanded for further proceedings.

The effect of the positions advocated by the parties in the District Court was to stipulate that $300 per month was a reasonable amount of maintenance, and to further stipulate that a duration for maintenance beyond five years was unreasonable. The stipulation was supported by the evidence and did not offend any public policy. Therefore, I conclude that it was an abuse of discretion for the District Court to ignore the stipulation by awarding maintenance in an amount greater than $300, and for a duration beyond five years.

Furthermore, based on the limited nature of the dispute in this case, and the fact that there are already inadequate assets with which to satisfactorily support both parties, I see no reason for either party to exhaust more of those resources on additional attorney fees for further legal proceedings.

Since the District Court found that Delilah was entitled to maintenance for longer than was stipulated to by the parties, but failed to adhere to the limitation established by the parties, I would reverse the judgment of the District Court and remand this case to the District Court solely for entry of judgment awarding maintenance to Delilah in the amount of $300 per month for a period of five years.

For these reasons, I specially concur with the majority’s reversal of the District Court.


author: JUSTICE GRAY JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DIANE MARIE FELAND, Defendant and Appellant.
    No. 94-013.
    Submitted on Briefs May 19, 1994.
    Decided October 13, 1994.
    51 St.Rep. 994.
    267 Mont. 112.
    882 P.2d 500.

      For Appellant: James A. Johnson; Johnson & Hunt, Shelby.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Cregg Coughlin, Assistant Attorney General, Helena; and Merle J. Raph, Toole County Attorney, Shelby.
   JUSTICE GRAY

delivered the Opinion of the Court.

Diane Feland was convicted on guilty pleas to two drug-related charges in the Ninth Judicial District Court, Toole County. She appeals the District Court’s denial of her motion to suppress all evidence resulting from an allegedly invalid search warrant, urging that the court erred in concluding that she was not entitled to an evidentiary hearing regarding the search warrant. We affirm.

In November, 1992, Toole County Deputy Sheriff Glenn Kurkowski (Kurkowski) met with a confidential informant who told Kurkowski he had recently visited the home of Diane Feland (Feland). The informant stated that, while at Feland’s home, he was shown a plastic bag purportedly containing marijuana, a dragon-shaped pipe, rolling papers, and other items of drug paraphernalia stored in a lamp stand located in the living room. The informant also described a marijuana plant growing in the living room and said he had been told another plant was growing in the first-floor bedroom. Finally, the informant said that Feland’s daughter told him Feland recently had purchased $300 worth of marijuana.

Based on this information, Kurkowski applied for and received a search warrant. Containers of marijuana, items of drug paraphernalia, and a grow light were found during the search of Feland’s home.

Based on the items seized during the search and Feland’s admissions that she had drugs and paraphernalia on the premises and smoked the marijuana, the Toole County Attorney moved for leave to file an information. The District Court granted the motion and the County Attorney filed an information charging Feland with felony possession of dangerous drugs and misdemeanor possession of drug paraphernalia. Feland pled not guilty to both charges.

Feland then challenged the validity of the search warrant and moved to suppress all evidence and admissions obtained via that warrant. She asserted that certain of. the informant’s statements contained in Kurkowski’s application for the search warrant (warrant application) were knowingly or intentionally false or made with reckless disregard for the truth. She argued that if the false material were excised from the application, insufficient information remained to establish probable cause for the issuance of the search warrant. The District Court denied Feland’s motion to suppress without holding an evidentiary hearing.

Feland subsequently entered, and the court accepted, guilty pleas to the offenses charged. The District Court imposed a two-year deferred sentence on the felony offense and a six-month suspended sentence on the misdemeanor offense. The court’s judgment authorizes Feland to appeal the denial of her motion to suppress pursuant to § 46-12-204(3), MCA. Feland appeals.

In denying Feland’s motion, the District Court concluded that she failed to make a substantial preliminary showing that false information was contained in the warrant application and, thus, that she was not entitled to an evidentiary hearing on the veracity of the statements in the warrant application. Feland contends that she made the showing necessary to entitle her to an evidentiary hearing. We review a district court’s denial of an evidentiary hearing for a clear abuse of discretion. State v. Wilson (1985), 218 Mont. 359, 363, 708 P.2d 270, 272.

The Fourth Amendment to the United States Constitution specifically provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation....” The assumption underlying the issuance of a search warrant is that the factual showing establishing probable cause must be “ ‘truthful’ in the sense that the information put forth [in the warrant application] is believed or appropriately accepted by the affiant as true.” Franks v. Delaware (1978), 438 U.S. 154, 165, 98 S.Ct. 2674, 2681, 57 L.Ed.2d 667, 678.

In Franks, the Supreme Court adopted a procedure for challenging the truthfulness of factual statements contained in an application for a search warrant. An evidentiary hearing on such a challenge is not required unless the defendant first makes a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant [application],” and that the false statement was necessary to a finding of probable cause. Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676.

We adopted the Franks procedure for challenging the validity of a warrant affidavit in State v. Sykes (1983), 194 Mont. 14, 20, 663 P.2d 691, 695. A substantial preliminary showing of a deliberate falsehood or reckless disregard for the truth requires more than a conclusory statement. State v. Mosley (1993), 260 Mont. 109, 116, 860 P.2d 69, 73 (citation omitted). The defendant must make an offer of proof containing “affidavits, sworn statements or other rehable witness statements which tend to prove that false statements in the application were deliberately made.” Mosley, 860 P.2d at 73 (citation omitted). We emphasized in Mosley, as had the Supreme Court in Franks, that “[i]nformation contained in a warrant application will be deemed truthful when the information put forth is believed or appropriately accepted by affiant.” Mosley, 860 P.2d at 73 (citation omitted) (emphasis added).

Feland challenged the veracity of the informant’s statements set forth by Kurkowski in the warrant application in a brief submitted to the District Court; no affidavits or sworn statements were appended. With regard to the informant’s statements describing marijuana and drug paraphernalia stored in a lamp stand, a marijuana plant growing in the living room, and an alleged discussion with her daughter about a marijuana purchase, she asserts that she or a member of her family is prepared to deny the truth of each of those statements. On that basis, Feland argues that the brief constitutes a sufficient preliminary showing to entitle her to an evidentiary hearing under Sykes. We disagree.

Feland’s challenge to the informant’s statements is similar to the general challenge presented by the defendant in Sykes. There, the defendant produced an affidavit by his wife stating that she was at home and that no stranger or person ‘likely to have seen the marijuana” was in the house the day preceding the search. Sykes, 663 P.2d at 692-93. We observed that although the affidavit alleged that no strangers were present, it did not preclude an acquaintance who saw the marijuana and reported it to the police. Sykes, 663 P.2d at 695. We concluded that the defendant’s affidavit was insufficient to make a substantial preliminary showing that the warrant affidavit contained false information. Sykes, 663 P.2d at 695-96.

Here, Feland’s challenge relates to the alleged falsity of the confidential informant’s statements and contains no affidavits, sworn witness testimony, or other reliable witness testimony. She relies on unsupported, general denials of the informant’s statements. As in Sykes, we conclude that Feland’s challenge does not constitute the substantial preliminary showing of falsity or reckless disregard for the truth required to entitle her to an evidentiary hearing.

More importantly, however, Feland’s focus on the alleged falsity of the informant’s statements does not address the primary factor required for a substantial preliminary showing under Franks and Mosley, which is that the affiant — deliberately or with reckless disregard for the truth — included false statements in the warrant application. Feland did not allege, much less make any showing in support of such an allegation, that a single one of Kurkowski’s statements was deliberately false or made by him with reckless disregard for the truth. We hold, therefore, that the District Court did not abuse its discretion in denying Feland an evidentiary hearing on the veracity of the information contained in the warrant application and in denying her motion to suppress.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES WEBER and NELSON concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the result of the majority’s opinion. However, I do not agree with all that is said by the majority in that opinion.

Specifically, for the reasons stated in my dissent to State v. Mosley (1993), 260 Mont. 109, 860 P.2d 69, 1 would not mechanically follow the U.S. Supreme Court’s decision in Franks v. Delaware (1978), 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667.

In the determination of what information should be excised from an application for a search warrant before considering whether there was probable cause to issue the search warrant, I would excise all false information. I fail to see why a search is reasonable when based totally on misrepresentations simply because the person whose privacy has been invaded cannot prove a dishonest intent by the person who sought the warrant. As stated by Judge Frankel in United States v. Halsey (S.D.N.Y. 1966), 257 F. Supp. 1002, 1005, affd, Docket No. 31369 (CA2, June 12, 1967) (unreported), and quoted with approval in Franks:

[Wlhen the Fourth Amendment demands a factual showing sufficient to comprise ‘probable cause,’ the obvious assumption is that there will be a truthful showing.

Franks, 438 U.S. at 164-65, 98 S.Ct. at 2681 (alteration in original). The Court went on to state that

[t]his does not mean “truthful” in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily. But surely it is to be “truthful” in the sense that the information put forward is believed or appropriately accepted by the affiant as true.

Franks, 438 U.S. at 165, 98 S. Ct. at 2681.

Based on Montanans’ independent state right to be free from unreasonable searches and seizures provided for in Article II, Section 11, of the Montana Constitution, I would adopt the following variation of the rule established in Franks for challenging the veracity of a sworn statement used by police to secure a search warrant: When a defendant makes a substantial preliminary showing that false information was included in the application or affidavit offered in support of a search warrant, a hearing must be held at the defendant’s request. At that hearing, the defendant bears the burden of proving by a preponderance of the evidence that the information offered is untrue. The untruthful information must be excised from the application, and a determination must be made whether there is sufficient probable cause without the excised information. If not, the search warrant must be voided and the fruits of the search excluded.

I agree with the Franks decision, and with this Court’s decision in Mosley, that to mandate an evidentiary hearing, the challenger’s attack must be based on more than conclusory statements made by counsel, but instead must take the form of an affidavit or some other reliable form of proof.

I also agree with this Court’s conclusion in State v. Sykes (1983), 194 Mont. 14, 20, 663 P.2d 691, 695, that:

Where the affidavits contain factual inaccuracies that do not go to the integrity of the affidavit because they are of only peripheral relevance to the showing of probable cause, the search warrant remains valid.

I concur with the majority’s decision to affirm the District Court for two reasons. First, defendant’s attack on the State’s search warrant in this case was not supported by affidavits or other reliable information, but merely by counsel’s conclusory statements. Second, even if all the statements and the application were excised, except the statement that the State’s informant had seen a plastic bag of marijuana being stored in a lamp stand in the living room, there was still sufficient probable cause to issue the search warrant. Defendant disputes that the plastic bag of marijuana was stored in a lamp stand. She contends it was actually stored in an end table. However, to the extent that the distinction between a lamp stand and an end table is a factual inaccuracy, it did not go to the integrity of the affidavit and was of peripheral relevance to the showing of probable cause.

Therefore, while I decline to follow lock-step with the U.S. Supreme Court’s erosion of Fourth Amendment rights in Franks, I concur with the majority’s decision to affirm the District Court.


author: CHIEF JUSTICE TURNAGE JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF TERI LYNN CLYATT, Petitioner and Respondent, and EUGENE GIBSON CLYATT, Respondent and Appellant.
    No. 94-226.
    Submitted on Briefs August 11, 1994.
    Decided October 13, 1994.
    51 St.Rep. 997.
    267 Mont. 119.
    882 P.2d 503.

      For Appellant: Christopher Daly, Missoula.
    For Respondent: Douglas G. Skjelset, Skjelset Law Offices, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Eugene Clyatt, Jr., appeals from the denial of his motion to modify his child support obligations by the Fourth Judicial District Court, Missoula County. We affirm.

The issue is whether the District Court abused its discretion in denying Eugene’s motion to modify his child support obligations.

Teri Clyatt and Eugene Clyatt, Jr., were married in July, 1987. One child was bom of this marriage, Amanda Jean Clyatt. Teri and Eugene were divorced in January, 1992. The District Court granted joint custody and appointed Teri primary residential parent. The court ordered Eugene to pay Teri $300 per month for child support. Eugene made the required payments from the time of the divorce decree until July, 1993. He failed to make support payments for the months of July, August, September, and October of 1993. Eugene also failed to pay for one-half of his daughter’s medical expenses for which he was responsible.

Teri moved the District Court to order Eugene to show cause why he should not be held in contempt of court for his failure to pay child support. Following a hearing, the court found Eugene in contempt of court for failing to pay his child support obligations. Eugene then moved the District Court to reconsider its contempt of court ruling and to modify his child support obligation. The court denied both motions. Eugene appeals only the court’s denial of his motion to modify the child support obligation.

The District Court based its decision on the following facts. Prior to and immediately following the divorce, Eugene worked for his father at Clyatt Construction Company. While employed at Clyatt Construction, Eugene had sufficient income to pay the $300 per month child support obligation. He voluntarily quit his job with Clyatt Construction due to personal problems between him and his father. Eugene did not seek alternative construction employment, despite having experience and expertise in that field. Rather, he enrolled in college at the University of Montana. Eugene worked part-time at McDonald-Armstrong Investment, Limited, earning a net income of approximately $460 per month. He lived with his parents and paid no rent. His parents paid for his college tuition.

* * *

Did the District Court abuse its discretion when it denied Eugene’s motion to modify his child support obligation?

Eugene argues that the District Court should have modified his child support obligation. Before a child support obligation can be modified, a party must establish that there are changed circumstances so substantial and continuing as to make the terms of the existing agreement unconscionable. Section 40-4-208(2)(b), MCA. The District Court found that no substantial and continuing change in circumstances existed. As such, the court did not address whether the alleged changed circumstance rendered the terms of the agreement unconscionable.

We will not disturb the District Court’s ruling absent a clear abuse of discretion. In Re the Marriage of Durbin (1991), 251 Mont. 51, 55, 823 P.2d 243, 245. This Court gives great deference to the trial court’s judgment, presuming its decision to be correct. In Re the Marriage of Carlson (1984), 214 Mont. 209, 214, 693 P.2d 496, 499.

The District Court found that Eugene did not show a substantial and continuing change in circumstances. There is sufficient evidence in the record to uphold this finding. Eugene voluntarily quit his employment with Clyatt Construction and did not actively seek other employment in the construction field. Eugene admits he is a skilled carpenter, yet he chose to return to school rather than remain employed in the construction business. Eugene’s current employment condition was clearly of his own making.

When an individual voluntarily decreases his or her ability to pay child support, it is up to the district court to determine whether there has been a substantial and continuing change in circumstances. In In Re the Marriage of Rome (1981), 190 Mont. 495, 497, 621 P.2d 1090, 1092, the father voluntarily left his employment in the hardware business and began a less lucrative career in the logging industry. In upholding the district court’s denial of the father’s motion to modify his child support payments, this Court stated:

Although we hold that a reduction in ability to pay brought about through a voluntary change in circumstances is not, in itself, sufficient to mandate a modification of support, neither do we approve the view that self-imposed changes can never be considered as reasons for modification. The better approach is to allow the judge to consider the nature of the changes and the reasons for the changes, and then to determine whether, under all the circumstances, a modification is warranted.

Rome, 621 P.2d at 1092.

There is substantial evidence in this case that Eugene voluntarily terminated his employment with Clyatt Construction and did not attempt to procure substitute employment in the field in which he was skilled. It therefore was within the discretion of the District Court to determine that no substantial and continuing change in circumstances existed.

District courts should consider several factors when determining whether a parent can meet his or her current child support obligations or if such support obligations should be modified, including:

(1) The parent’s ability to earn an income;
(2) The parent’s willingness to earn an income and support his child;
(3) The availability of jobs;
(4) The parent’s use of his funds to provide himself only with the bare necessities of life prior to providing support for his child.

In Re the Marriage of Callahan (1988), 233 Mont. 465, 469, 762 P.2d 205, 208 (emphasis added). The record indicates that Eugene was able to earn an income sufficient to pay his child support obligation while working at Clyatt Construction. The record likewise reflects his unwillingness to support his child by voluntarily quitting his construction job and returning to school. Taking these factors into consideration, the District Court did not abuse its discretion in finding that Eugene’s choice to quit his job and subsequently return to school did not constitute a substantial and continuing change in circumstances.

Eugene argues that the District Court erred in not making a finding concerning unconscionability. We find no merit in this argument. This Court recently indicated that a change in circumstances and unconscionability are two distinct factors which must be independently established. In In Re the Marriage of Barnard (1994), 264 Mont. 103, 870 P.2d 91, we stated:

It is obvious that Timothy’s financial success constitutes a change in circumstance. However, this fact, by itself, does not render the prior child support award unconscionable.

Barnard, 870 P.2d at 93-94. Changed circumstances and unconscionability are clearly two separate factors that the court can address independently of each other.

Section 40-4-208(2)(b), MCA, likewise suggests that a finding of changed circumstances is a prerequisite to any inquiry into the unconscionability of the agreement:

Whenever the decree proposed for modification contains provisions relating to maintenance or support, modification under subsection (1) may only be made:
(i) upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable ....

Absent a finding of changed circumstances, the court’s analysis need go no further. Only after finding that the circumstances surrounding the child support obligation have substantially and continually changed must the court make a determination concerning unconscionability.

The District Court denied Eugene’s motion for modification of his child support obligation because it found no substantial and continuing change in circumstances. The District Court stated:

The Court finds that [Eugene] has shown little initiative to provide support for his child, despite his contentions to the contrary. While his stated goal of furthering his education is commendable, it does not override his obligation to provide his child with support, nor constitute changed circumstance.

(Emphasis added.)

We conclude that the court did not abuse its discretion in finding that no substantial or continuing change in circumstances existed. We therefore affirm the decision of the District Court.

We need not address Eugene’s argument regarding § 40-4-204, MCA. Section 40-4-204(3)(a), MCA, states:

Whenever a court issues or modifies an order concerning child support, the court shall determine the child support obligation by applying the standards in this section and the uniform child support guidelines....

Since we conclude that the District Court properly denied modification of the child support obligation, the child support guidelines do not come into effect. We affirm the decision of the District Court.

JUSTICES HARRISON, HUNT and NELSON concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion. I would reverse the judgment of the District Court.

Although the record in this case is less than satisfactory, it must be pointed out that due to his economic circumstances, Eugene proceeded pro se at all times prior to the District Court’s order which held him in contempt for failure to pay child support. There is no indication that he was represented when Teri filed her petition for dissolution, or when he signed the property settlement agreement which formed the basis for the District Court’s January 7, 1992, decree. Finally, he was unrepresented at the only hearing held in this matter on October 12,1993.

However, even the uninformed testimony given at that hearing established a change in circumstances since the date of the parties’ dissolution decree which was so substantial that his original child support obligation was unconscionable. The District Court’s failure to modify the support obligation was unsupported by substantial evidence, and therefore, an abuse of discretion.

The uncontroverted evidence established that at the time he consented to the dissolution decree, Eugene worked as a carpenter for his father’s construction business. However, due to differences with his father, they mutually agreed to the termination of his employment shortly after the decree was entered. Eugene testified, without contradiction, that from January 1992 until the date of his hearing, his gross income was $7973.60, while his child support obligation alone was $5380. He had no automobile, no savings, and no other assets.

Eugene had never worked as a carpenter for anyone other than his father. After terminating his employment with his father, he realized that there were numerous carpenters in Missoula, but few construction jobs. Therefore, he decided that it would be in his, as well as his child’s, best interest that he reeducate himself, so he returned to school as a full-time student.

At the time of the only hearing that was held in this case, Eugene was working at McDonalds 24 hours a week, earning $5.25 per hour. His net income was $460 per month.

At the time of his hearing, Eugene proposed that his support obligation be temporarily modified, based on his reduced income, to conform to the Child Support Guidelines, and that the court establish a schedule on which he could repay his past-due support obligation. He was unable to do more.

Instead, on November 8,1993, the District Court entered its order finding him in contempt of court for failure to pay child support and ordered that: he purge himself from contempt by executing a wage assignment in the amount of $300 per month; pay his wife’s attorney fees in the amount of $242.50; pay costs in the amount of $15.50; and pay medical bills in the amount of $327.50 within 15 days.

Section 40-4-208(2)(b), MCA, provides in relevant part as follows:

Whenever the decree proposed for modification contains provisions relating to maintenance or support, modification under subsection (1) may only be made:
(i) upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable ....

A district court’s decision to modify or deny modification of a child support obligation is reviewed for an abuse of discretion. In this case, I conclude there clearly was an abuse of discretion when, under the above circumstances, the District Court found that Eugene was capable of making child support payments in the amount of $300 per month; and that he quit his carpentry job only because he did not enjoy it.

The District Court made no specific findings regarding a change in circumstances or the conscionability of Eugene’s child support obligation — the factors to be considered under § 40-4-208, MCA. However, in the court’s later opinion and order denying Eugene’s motions for reconsideration and modification, the District Court stated:

The Court finds that the respondent has shown little initiative to provide support for his child, despite his contentions to the contrary. While his stated goal of furthering his education is commendable, it does not override his obligation to provide his child with support, nor constitute changed circumstance. Other fathers in similar circumstances have been diligent enough to pursue an education and provide for their children. Such is not beyond the ability of the respondent.

To the extent that these remarks by the District Court constitute its findings, they were also clearly erroneous and unsupported by any evidence in the record.

The evidence was that Eugene had borrowed substantial amounts of money since going back to school in an effort to make child support payments, but was apparently unable to continue doing so. With no assets, that should not be surprising. Furthermore, assuming that what other fathers had done under similar circumstances may have been relevant, there was simply no evidence of what any other father had done.

The majority concludes that when a person voluntarily terminates his employment, and thereby sustains a reduction in income, it is completely up to the district court’s discretion to determine whether a modification is warranted. However, that discretion is not unlimited. Where, as in this case, there were sound reasons for Eugene’s termination of his employment, and sound economic reasons for his reeducation, this Court has not served anyone’s best interest by punishing him for seeking the reeducation he needs. Where a parent makes reasonable progress toward reeducation with the objective of improving his earning capacity, it is in both his best interest, and the long-term best interest of his child, that he be encouraged, not discouraged, from doing so.

The District Court has imposed a harsh obligation which Eugene is unable to meet. The alternative is that he go to jail. However, there will be little benefit to his child from his incarceration. Any pride taken by the District Court and this Court in their assumption that they have enforced another recalcitrant father’s child support obligation is unfounded. This decision will, in the long term, punish the very child it seeks to benefit. The District Court’s decision, and this Court’s opinion affirming that decision, are shortsighted and serve no one’s best interest.

For these reasons, I would reverse the judgment of the District Court.


author: JUSTICE NELSON JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DANNY A. RAY, Defendant and Appellant.
    No. 93-256.
    Submitted on Briefs April 14, 1994
    As Amended on Denial of Rehearing Oct. 20, 1994.
    Decided October 6, 1994.
    51 St.Rep. 968.
    267 Mont. 128.
    882 P.2d 1013.

      For Appellant: Michael Sol, Sol & Wolfe, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Kathy Seeley, Assistant Attorney General, Helena; Robert L. Deschamps, HI, Missoula County Attorney, Gary L. Henricks, Deputy Comity Attorney, Missoula.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from a Fourth Judicial District Court, Missoula . County, jury verdict finding the defendant Danny Ray (Ray) guilty of two counts of solicitation of sexual assault. We reverse and remand for a new trial.

The following are issues on appeal:

I. Did the District Court abuse its discretion when it admitted testimony of prior acts?

II. Was the evidence presented insufficient to convict the defendant of two counts of solicitation of sexual assault?

III. Was the jury instruction on solicitation given in the second trial improper?

IV. Did the District Court err in admitting the testimony of the two expert witnesses who were not identified as experts prior to trial?

V. Was cumulative error committed in the instant case?

FACTUAL BACKGROUND

Ray has resided in the West Riverside neighborhood of East Missoula since about 1971. He also has a shop in the area which contains a second hand store and work shop where he builds furniture. Ray is well known by most of the families in the neighborhood. He has employed several persons from the area to build furniture in the shop and in the past many children would visit him, play at the shop or help with simple tasks. There was considerable testimony during the trial that Ray would assist families and children in the neighborhood who needed loans, furniture, clothing and other items.

Ray would load some of the furniture he built and take it to Spokane to sell. In about 1989, he started to take a neighborhood man who was working for him building furniture, on the trips to Spokane. Two or more children would generally accompany the men on these trips. At some point, Ray’s employee, Mike Triplett, stopped going on trips to Spokane but the children, generally girls, continued to accompany Ray.

J. E., one of the girls who often accompanied Ray on the trips, testified at trial that when she and A.D. accompanied Ray, the defendant would drive as far as Coeur’d Aleñe, Idaho, rent a motel room with one bed and the girls would sleep in the bed with him. She testified that when she slept in the bed with him, he would touch her in her private area underneath her clothing and put his fingers inside her.

Additionally, A.D. testified that Ray would touch her on her breasts and her private area. She stated that sometimes he would touch her breasts on top of her clothing and sometimes underneath her clothing. She further testified that when he touched her private parts, he would touch her on the inside of her clothes.

The two girls also testified that Ray would take them to the skating rink or zoo while they were in Spokane. Additionally, they related that Ray would take them shopping and buy them clothing and other items while they were on their trips. J.E. testified that she did not know whether the gifts were a reward for going to Spokane, but A.D. did feel that the gifts were for accompanying Ray to Spokane.

M.C. testified that she and her friends would ride with Ray in his tan pickup. She stated that when he would shift gears he would drop his hand on her leg and rub her leg. She further reported that he would put his hands around the top of her body to take her down from the truck although she did not think it was necessary. She also testified that he touched her on the bottom once when they were on their way to a party and the wind was blowing and he kept pushing her skirt down.

Other facts will be provided as necessary in the body of the opinion.

PROCEDURAL BACKGROUND

The original information was filed on May 13,1991, charging Ray with one count of solicitation of sexual intercourse without consent. An amended information was subsequently filed charging Ray with solicitation of sexual assault. A not guilty plea was entered and trial was held on March 19 and 20,1992. That resulted in a mistrial when the jury could not reach a verdict in the case.

Amotion was filed on March 31,1992, for leave to file an amended information charging Ray with two counts of solicitation of sexual assault and one count of sexual assault. The motion was granted on March 31, 1992. On April 7, 1992, a motion for leave to file a second amended information was filed and the court granted the motion on the same day. The second amended information contained one count of tampering with witnesses.

A second trial was held on December 14 and 15, 1992. The jury found Ray guilty of two counts of solicitation for sexual assault and acquitted Ray of the one count of sexual assault.

OPINION

I. PRIOR ACTS

Did the District Court abuse its discretion when it admitted testimony of prior acts?

Ray argues that evidence of prior acts was improperly admitted. The State alleged that a person not a victim in the charged conduct, S.E., was sexually assaulted by Ray approximately 16 to 18 years ago. Ray asserts that the acts were not sufficiently similar, were too remote in time and their probative value was outweighed by their prejudicial effect. The State counters that the other acts about which S.E. testified were sufficiently similar to the charged conduct and not too remote in time. Moreover, the prior acts were properly admitted to show motive, mental state, and common scheme and their probative value outweighed any prejudice to the defendant.

The standard of review for evidentiary rulings is whether the District Court abused its discretion. State v. Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054. On review, we will apply the modified Just rule, established in State v. Matt (1991), 249 Mont. 136, 814 P.2d 52.

Matt sets forth the basis for admission of evidence of prior acts as follows:

(1) The other crimes, wrongs or acts must be similar.
(2) The other crimes, wrongs or acts must not be remote in time.
(3) The evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character, but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
(4) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Matt, 814 P.2d at 56.

A key concern with the admission of prior acts in the instant case is the fact that the prior act occurred approximately 16 to 18 years before the charged conduct. This raises the issue of whether the prior acts are too remote in time and therefore violate the second requirement of the modified Just rule. We are guided in our decision by previous case law which leads us to conclude that the prior acts at issue here are simply too remote to the charged conduct.

In State v. Tecca (1986), 220 Mont. 168, 714 P.2d 136, we concluded that an isolated incident nine years before the charged conduct would be too remote in time, but because there was a continuing course of conduct any remoteness problem was alleviated. We also stated that we would not establish any arbitrary time limit for admitting prior acts where such a cut-off would exclude probative evidence. Tecca, 714 P.2d at 139. See also Crist, 833 P.2d at 1055.

In the present case, the prior acts took place between 16 and 18 years before the conduct charged. Although the State included intervening acts in its amended notice of intent to introduce evidence of other acts, only one of the complainants involved in those other acts, M.C., testified at trial. That particular other act was also charged in the amended information in the count alleging sexual assault. M.C. was named as the victim. M.C. testified at the trial, and subsequent to her testimony, Ray made a motion to dismiss the count of sexual assault because he believed her testimony did not indicate any intentional sexual assault. The trial judge stated that he did not believe that the jury would return a guilty verdict on that particular count and if it did, he would seriously consider the motion to dismiss the count at that point. The jury did, in fact, acquit Ray of that charge. M.C.’s testimony was, thus, for all intents and purposes, discounted by the jury and the trial court. Accordingly, there are no intervening acts which could constitute a continuing course of conduct between the time of the incidents 16 to 18 years ago, and the charged conduct.

Although we continue to decline to set arbitrary time limits for admitting prior acts evidence, we hold that the two prior acts to which S.E. testified at issue here and which occurred 16 to 18 years ago, without other intervening acts which would show a continuing course of conduct, are simply too remote and do not meet the second requirement of the modified Just rule established under Matt.

Moreover, the fourth requirement of the modified Just rule, whether the probative evidence is outweighed by the danger of unfair prejudice, also cannot be satisfied. The evidence of prior acts admitted in the second trial, so remote in time, was prejudicial. State v. Croteau (1991), 248 Mont. 403, 812 P.2d 1251, discusses the general policy to exclude evidence of other acts:

The general rule is that evidence of other crimes or prior acts must be excluded. Rule 404(b), M.R.Evid. The reason for this long-standing rule is that prior acts or crimes are highly prejudicial to the defendant, and usually irrelevant for purposes of the charged crime. In State v. Tiedemann (1961), 139 Mont. 237, 242, 362 P.2d 529, 531, we explained:
“The general rule should be strictly enforced in all cases where applicable, because of the prejudicial effect and injustice of such evidence, and should not be departed from except under conditions which clearly justify such a departure.”
Evidence of a defendant’s prior acts or uncharged misconduct creates the risk that the jury will penalize a defendant simply for his past bad character.

Croteau, 812 P.2d at 1253. (Citations omitted.)

In the instant case, the trial court, during the course of the first trial, denied the State’s motion to admit evidence of the same prior acts “[b]ecause the prejudicial effect of admitting evidence of an isolated incident that occurred fifteen years prior to the charged crime is likely to result in an emotional response from the jury and because the probative value is in question ...” We agree that there is a high probability the jury could have penalized the defendant simply for his past bad character. The fourth requirement of the modified Just rule cannot be satisfied either. Therefore, we conclude that the evidence of prior acts was improperly admitted.

We hold that the District Court erred in admitting the evidence of prior acts of the defendant and, accordingly, we reverse the District Court on this issue and remand for new trial. For the guidance of the court and counsel on retrial, however, we will address the remaining legal issues raised by the defendant.

II. SUFFICIENCY OF EVIDENCE

Was the evidence presented sufficient to convict the defendant of two counts of solicitation of sexual assault?

Since we are remanding for new trial on the basis of our discussion in Issue I, it will, obviously, be up to the next jury to determine the guilt or innocence of Ray on the basis of whatever evidence is submitted at retrial. In his argument on appeal on this Issue and on Issue III, however, Ray contends, that, apart from the other crimes evidence, the evidence of his conduct in Montana as regards J.E. and A.D., is not directly related to the underlying offense of solicitation of sexual assault, is capable of different interpretations, is otherwise innocent and, therefore, cannot, as a matter of law, sustain a conviction for solicitation. Ray contends that the evidence adduced at trial was insufficient to support a conviction for solicitation of sexual assault.

In arguing for a narrower interpretation of the scope of conduct which may be sufficient to prove solicitation, Ray suggests that:

... under our case law ... anything a criminal does to make the commission of his own crime “easier or less difficult” can be classified as “solicitation.” To suggest that this is perhaps an overbroad reading of what the legislature intended to do, is certainly supported by the realization that anything a criminal does can be interpreted as making his crime easier: getting up in the morning, for example. ...

The State insists that, under our prior cases, there was sufficient evidence to establish Ray’s facilitation of the sexual assaults in Idaho, by his actions in Montana, and that his conviction should stand.

The evidence presented to establish Ray’s facilitation of the sexual assaults included his promises of gifts if the girls went to Spokane and the subsequent purchase of gifts of clothing and other items for the children involved in the solicitation allegations. At the time the offenses occurred Ray was over forty years old and the two minor girls were ages nine and eleven.

J.E. testified that Ray offered to buy “clothes and stuff’ if the girls would go to Spokane and that he did, in fact, buy clothes and other items if the girls would accompany him. She also testified that she did not know whether the clothes and other items were a reward for going to Spokane. She further testified that he stated that they would get more clothes if they went to Spokane alone because if he took two people, he could not buy as many clothes. A.D. testified that Ray did buy her gifts as a reward for going to Spokane. However, A.D. also testified, when asked if she ever believed that if she did not go to Spokane, she would not get “things”: “[c] ould be a couple times.” Ray’s attorney then asked, “[c]ould be, but was there?” A.D. stated, “No.” Ray conceded that the girls knew they would receive gifts if they accompanied him to Spokane.

There was testimony by both girls that when they went to Spokane, they generally would stop in Coeur’d Aleñe, Idaho, and stay overnight in a motel. There was usually only a single bed and Ray and the girls would sleep in the same bed. The girls testified that when they slept in the bed with him, he would touch their breasts and private parts. The State contends that the jury could infer from the above facts that the defendant “induced the girls to spend nights alone in a motel room with him by offering to drive them out of state and buy them gifts in Spokane.”

However, although there was testimony that Ray did buy gifts for the children involved in the instant case, there was also testimony that he purchased gifts for other children in the neighborhood, including the siblings of the girls involved in the instant action. Additionally, there was testimony that he helped out area families, including the families of the children involved in the allegations. Ray would loan money to the families when necessary and assist in the purchase of furniture and other necessities for the household. There was testimony that he would assist the families and children of the neighborhood with material items because he, himself, had a very poor childhood.

Ray was charged with and was prosecuted in Montana for inchoate offenses of solicitation, i.e. for "... command[ing], encouraging] or facilitating] ...,” in Montana, the commission of two sexual assaults in Idaho. Section 45-4-101, MCA. Montana’s jurisdiction to prosecute Ray derives from our statute which allows this State to charge and to prosecute"... conduct within [Montana which] constitutes ... solicitation ... to commit in another jurisdiction an offense under the laws of [Montana] and such other jurisdiction.” Section 46-2-101(l)(c), MCA; Ray was not charged with nor was he prosecuted for the actual sexual assaults in the state of Idaho; any such prosecution would, necessarily, have to be conducted in that state.

Montana’s offense of solicitation is set forth at § 45-4-101, MCA, and, in pertinent part, provides:

Solicitation. (1) A person commits the offense of solicitation when, with the purpose that an offense be committed, he commands, encourages, or facilitates the commission of that offense.

The scope of conduct made criminal by Montana’s solicitation statute is more expansive than either the common law inchoate offense or the Model Penal Code provision from which our statutory offense was derived. State v. Bush (1981), 195 Mont. 475, 479, 636 P.2d 849, 851. In State v. Sage (1992), 255 Mont. 227, 841 P.2d 1142, we stated that:

Montana adopted its solicitation statute from the Illinois Criminal Code of 1961. When Montana adopted it, the Illinois statute read, “A person commits solicitation when, with intent that an offense be committed, he commands, encourages or requests another to commit that offense.” When the Montana Legislature adopted the statute in 1973 it changed the language. The legislature has not changed the statute since its enactment. The Montana version states, “A person commits the offense of solicitation when, with the purpose that an offense be committed, he commands, encourages or facilitates the commission of that offense.”
By modifying the statute, the legislature broadened the types of conduct which are criminal under the solicitation statute. Section 45-4-101, MCA, (Emphasis added.)

Sage, 841 P.2d at 1143. (Citations omitted.) The range of conduct which might be used to prove the commission of that offense is best illustrated by reference to the facts of Sage and Bush.

In Sage, the defendant was charged with and convicted of solicitation to commit incest. In that case, the defendant repeatedly asked his daughter to “fool around” with him in a sexual manner. Moreover, he cut a peep hole in the bathroom wall so he could watch her. He also installed a video camera so he could videotape her in the bathroom. In Sage the defendant’s acts were unequivocal, capable of only one reasonable interpretation and purpose and directly tended to command, encourage or facilitate the commission of the offense of incest. The acts themselves were sexual in nature. Sage, 841 P.2d at 1142.

In Bush, however, the defendant’s conviction of the offense of solicitation to possess dangerous drugs was affirmed on the basis of proof of conduct which was much less directly and unequivocally related to the underlying offense and which, as in the instant case, involved conduct both within and without Montana that was, without reference to the underlying crime, capable of being interpreted as innocent and not culpable.

In that case the defendant, pretending to be a film maker who photographed animals, solicited and, ultimately, retained Kohse, a bartender, to be a film courier. Kohse was sent to Los Angeles where she was then advised that she was going to, instead, be a photographer, notwithstanding that she had no experience in photography. She was minimally instructed in the use of photographic equipment given to her by Bush and was then sent to Peru to photograph zoo animals. She was contacted there by a person named Dan, who took her to the zoo, left her there for several hours to photograph animals, but took her camera case. On her return to the United States, customs agents discovered cocaine hidden in a compartment in the lining of the camera case. Kohse disclaimed any knowledge of how or when the drug was placed in the camera case or who put it there.

In affirming his conviction of solicitation, we rejected Bush’s argument to the contrary and concluded that evidence of events occurring outside the State of Montana were relevant to show his mental state or purpose to commit the offense of solicitation in Montana. Bush, 636 P.2d at 851. Moreover, we held that the word “facilitate” was not vague but was commonly understood to mean “to make easier or less difficult: free from difficulty or impediment,” and that “[i]n all cases, the actor must have the purpose of promoting the commission of an offense.” Bush, 636 P.2d at 852. We also stated that it was irrelevant that the person solicited did not know of the criminal purpose of the solicitation or of the criminal nature of the conduct solicited. Bush, 636 P.2d at 852.

As with Bush, the activities of the defendant upon which the charges of solicitation of sexual assault are based in the instant case, while capable of more than one interpretation and while, in and of themselves, arguably innocent, are, nevertheless, legally sufficient to sustain a conviction for that offense when viewed in the context of defendant’s conduct in the state of Idaho. While Ray is not charged with nor can he be convicted of the actual sexual assaults in Idaho, his conduct there, is, nonetheless, relevant in the proof of the crimes of solicitation with which he is charged in Montana. Bush, 636 P.2d at 851. Such conduct establishes his mental state and his purpose of promoting in Montana, the commission of the offenses of sexual assault in Idaho.

The promise of or provision of gifts to poor children and the assistance of families in need, without more, is innocent and not culpable conduct. Furthermore, such conduct, unlike the defendant’s acts in Sage, is clearly not sexual in nature. Nevertheless when such conduct is examined in the context of Ray’s repeated trips to Spokane where he spent his nights in a motel room in Idaho, in a single bed, allegedly sexually assaulting the two minor girls, who he had encouraged to make the trip with him, the true purpose behind his otherwise innocent conduct in Montana becomes clear.

The standard of review for determining the sufficiency of the evidence in a jury trial is:

[WJhether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Emphasis added.)

State v. Keys (1993), 258 Mont. 311, 319, 852 P.2d 621, 626. We conclude that a rational trier of fact could, beyond a reasonable doubt, infer that Ray’s conduct in Montana was for the purpose of inducing the girls to accompany him to Spokane and for the purpose of facilitating the commission of the sexual assaults which he allegedly committed in Idaho against the minors.

In resolving the legal issue raised by the defendant and in addressing his arguments on appeal, we hold simply that the evidence used to prove solicitation of sexual assault in this case was legally sufficient. Whether the next jury determines that such evidence, if admitted, is sufficient to sustain a conviction is, of course, solely within the province of that finder of fact.

III. JURY INSTRUCTIONS

Was the jury instruction on solicitation given in the second trial improper?

Ray asserts that the jury instruction provided by the District Court in the second trial was not correct nor was it necessarily clear to an ordinary jury. The State claims that the instruction given at the second trial is the proper statement of the law. We agree that the jury instruction provided at the second trial is the proper statement of the law and was properly given.

The jury instruction given at the first trial stated:

A person commits the offense of solicitation when, with the purpose that the offense of sexual assault be committed, he encourages or facilitates another to commit the crime of sexual assault.

However, in the second trial, the following jury instruction was given:

Aperson commits the offense of solicitation when, with the purpose that the offense of sexual assault be committed, he commands, encourages or facilitates the commission of that offense.

The jury instruction given in the first trial was an incorrect statement of the law. It was based on the general definition of solicitation, § 45-2-101(62), MCA. However, the crime of solicitation provides a more specific definition for solicitation, and provides that a person commits the offense of solicitation when he commands, encourages or facilitates the commission of that offense. Section 45-4-101, MCA. The second jury instruction, therefore, is the correct statement of the offense of solicitation in Montana, and was properly given. We hold that the District Court did not commit error when it gave jury instruction 17 in the second trial.

IV. EXPERT TESTIMONY

Did the District Court err in admitting the testimony of the two expert witnesses who were not identified as experts prior to trial?

Ray also argues that two expert witnesses were not properly identified. The State contends that they were identified but were not identified as experts in the amended information filed on March 31, 1992, and the second amended information filed on April 7, 1992. The State conceded that the expert status of the witnesses and a summary of their anticipated testimony should have been provided to Ray. However, the State also asserts that prejudice must be shown when there has been a violation of discovery, citing State v. Forsyth (1988), 233 Mont. 389, 412, 761 P.2d 363, 377.

Section 46-15-322(1), MCA provides:

(1) Upon request, the prosecutor shall make available to the defendant for examination and reproduction the following material and information within the prosecutory’s possession or control:
(a) the names, addresses, and statements of all persons whom the prosecutor may call as witnesses in the case-in-chief;
(c) all written reports or statements of experts who have personally examined the defendant or any evidence in the particular case, together with the results of physical examinations, scientific tests, experiments, or comparisons. ...
Moreover, the Omnibus order stated that:
1. The State shall immediately, and on a continuing basis:
a. Disclose the names of the State’s witnesses (including experts), their statements, or a short summary of their anticipated testimony if no statement exists.
b. Disclose and make available for inspection all physical or documentary evidence in the State’s possession.

The trial occurred on December 14 and 15, 1992. The State had previously listed the two witnesses at issue, but had not revealed that they were to testify as experts nor did it provide any statement of their prospective testimony. Although the State was in clear violation of § 46-15-322(1), MCA, and the Omnibus Order, Ray had over eight months to investigate the testimony of the two witnesses, and there is no evidence that he made any attempt to ascertain their status in the case or their potential testimony.

Because we reverse this case upon Issue I, we will not address the effect of the State’s violation of the rules of discovery upon this case other than to note that the State was at fault in not disclosing the status of the two experts and in failing to provide their statements to the defense but that the defendant’s claims of prejudice ring somewhat hollow given his failure to ascertain the status and testimony of the two witnesses whose identity he knew for over eight months prior to the trial.

V. CUMULATIVE ERROR

Was cumulative error committed in the instant case?

Finally, Ray claims that this case should be reversed because of cumulative error in the trial process. The only error we have found in this case is the admission of the prior acts evidence. Accordingly, Raj^s arguments of cumulative error are without merit.

We note that although Ray was charged in the second amended information with one count of tampering with witnesses, this count was not tried before the jury. Before voir dire this charge was dismissed on motion of the State.

REVERSED AND REMANDED.

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

JUSTICE TRIEWEILER

specially concurring in part and dissenting in part.

I concur with the majoritys conclusion that the District Court abused its discretion when it admitted evidence of defendant’s conduct which occurred 16 to 18 years prior to trial. I also concur that based on that error alone, defendant is entitled to a new trial.

However, I dissent from the majority’s conclusion that there was sufficient evidence of conduct by defendant to support his conviction for solicitation in the State of Montana. Defendant committed no crimes in Montana. However, the majority opinion stretches the law regarding solicitation beyond recognition to facilitate defendant’s trial in Montana for crimes committed in the State of Idaho. The charges brought against defendant in the District Court of the Fourth Judicial District should have been dismissed and charges for defendant’s actual offenses should have been filed in Idaho, where those offenses occurred.

The majority opinion states that because defendant made promises to his victims in Montana that he would do things for them in Washington, he thereby facilitated the commission of sexual assault involving those victims in the State of Idaho. However, even conceding that Montana’s solicitation statute found at § 45-4-101, MCA, is the broadest such statute in the country, and that it includes language which has nothing to do with solicitation, as that term is commonly understood, there is still no proof of any unlawful conduct on the part of defendant which was committed in Montana.

In State v. Bush (1981), 195 Mont. 475, 479, 636 P.2d 849, 852, we held that:

“Facilitate” is a commonly understood word. Its definition according to Webster’s Third New International Dictionary is ‘to make easier or less difficult: free from difficulty or impediment.’ In all cases, the actor must have the purpose of promoting the commission of an offense.

In this case, the majority’s theory is that because defendant made promises to his victims in Montana that he would perform favors for them in Washington, those promises “facilitated” the commission of sexual assault on his victims in Idaho. However, there is no support for that conclusion in the record before the trial court.

J.E. testified that she did not know if the things defendant purchased for her in Washington were a reward for traveling with him. She testified that she traveled with defendant because some of hér friends did so and she wanted to go along with them. Similarly, she testified that she hung around defendant’s shop because it was fun to do so. Finally, she testified that she received gifts from defendant whether she went to Spokane or not, and that other families were given gifts, even though none of their children went to Spokane. She established no relationship between the promises, which the majority concludes are the basis of defendant’s offense, and trips to Spokane.

Likewise, A.D., defendant’s second alleged victim, did not testify that she traveled to Spokane with defendant because of any promises made by him to her or anyone else. She testified that she went to Spokane with defendant “because my family thought he was really nice and so did I.”

There was absolutely no other testimony given by either of defendant’s alleged victims which connected any of his conduct in Montana to the crimes he is accused of committing in Idaho.

When the majority opinion is distilled to its essence, it is that Montana’s statute prohibiting solicitation is so broad and all-encompassing that a defendant can be tried and convicted of a felony in Montana punishable by up to 20 years in prison and a $50,000 fine for being “really nice.” Surely, any statute that can be so construed lacks sufficient specificity to give fair notice of the conduct which is prohibited and will lead, as it did in this case, to arbitrary and discriminatory arrests. Such a statute is unconstitutionally vague and violates the due process clause of the Fourteenth Amendment to the United State Constitution. See Grayned v. City of Rockford (1972), 408 U.S. 104, 92 S. Ct. 2294, 33 L. Ed. 2d 222.

In this case, defendant was tried, convicted, and sentenced based purely on acts he is accused of committing in the States of Idaho and Washington. Montana’s solicitation statute was merely a subterfuge to enable this State to punish defendant for conduct over which it had no jurisdiction. While the allegations made against defendant suggest conduct that was reprehensible, the appropriate place to charge, try, and punish defendant is the state where that conduct occurred — not Montana.

JUSTICE HUNT joins in the foregoing concurrence and dissent.