author: JUSTICE TRIEWEILER JUSTICE WEBER

text:
    JAMES P. CHALLINOR and BETTY E. CHALLINOR, Plaintiffs and Appellants, v. GLACIER NATIONAL BANK and DOUGLAS B. REMICK, Defendants and Respondents.
    No. 93-490.
    Submitted on Briefs August 4, 1994.
    Decided September 13, 1994.
    51 St.Rep. 863.
    266 Mont. 396.
    880 P.2d 1327.

      For Appellants: Russell K. Jones, Attorney at Law, Spokane, Washington.
    For Respondents: I. James Heckathom, Murphy, Robinson, Heckathom & Phillips, Kalispell.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

James and Betty Challinor filed a complaint in the District Court for the Nineteenth Judicial District in Lincoln County in which they sought damages for an alleged breach of a suretyship contract. The Challinors’ subsequent motion for substitution of judge was declared void on the basis that it was untimely. In an order issued on August 19, 1993, the court granted summary judgment in favor of Glacier National Bank and Remick. The Challinors appeal.

We reverse and remand.

The dispositive issue on appeal is whether the District Court erred when it dismissed the motion for substitution of the District Court Judge.

This litigation arises out of a road construction contract between the United States Forest Service and James Challinor. In connection with this contract, Glacier National Bank served as surety for Challinor, guaranteeing performance by Challinor to the Forest Service. The surety agreement was secured by mortgages on James and Betty Challinors’ home and land.

In 1984, the Forest Service declared the Challinors in default and made demand on the bank for payment pursuant to the surety agreement. In response, Glacier National Bank performed the surety obligation.

In the first of three related actions, the Challinors commenced a civil action in 1986 against Glacier National Bank in which they alleged that the bank breached the surety agreement when it made payment to the Forest Service over the Challinors’ objection and without raising available defenses. This action was later dismissed by the District Court due to the failure of either party to appear when the case was called by the court.

In 1987, the bank commenced a mortgage foreclosure action against the Challinors to obtain reimbursement for payments made under the surety obligation. The Challinors attempted to raise a suretyship defense at the trial of this matter in 1990, but the court disallowed the defense for the reason that it had not been pled, was not disclosed in any pretrial discovery nor at the pretrial conference, and was not properly before the court. This Court affirmed the exclusion of a suretyship defense in that action in Glacier National Bank v. Challinor (1992), 253 Mont. 412, 833 P.2d 1046.

On November 28, 1990, the Challinors filed an additional complaint, which is the subject of this appeal, against Glacier National Bank and Remick in which they claimed breach of a suretyship contract due to the bank’s alleged failure to assert available defenses when payment was demanded by the Forest Service. A summons was served on Remick in this action on January 9,1991. On February 26, 1991, summons was served on Glacier National Bank.

Three days later, on March 1, 1991, the Challinors filed a motion for substitution of judge pursuant to § 3-1-804, MCA. The District Court Judge did not withdraw from the case and issued an order on March 19, 1991, stating that the motion for substitution of judge “is declared void as untimely.” Thereafter, the bank moved for summary judgment based on the law of compulsory counterclaim and res judicata. The court held that this Court’s decision in Glacier National Bank v. Challinor, 833 P.2d 1046, “was dispositive with respect to the suretyship question raised in the instant case.” On this basis, the District Court granted summary judgment in the bank’s favor. This appeal followed.

The Challinors contend that the court erred when it denied their motion for substitution of judge, and when it granted summary judgment based on compulsory counterclaim and res judicata. However, we find the issue of judicial substitution dispositive in this case, and address only that matter. :

Montana law entitles each adverse party in a civil or criminal case to one substitution of a district court judge. Section 3-1-804, MCA. Once a timely motion has been filed, the substituted judge is without jurisdiction to act on the merits of the cause or to decide legal issues therein. Section 3-l-804(l)(a), MCA; Taylor v. Matejovsky (1993), 261 Mont. 514, 517, 863 P.2d 1022, 1024.

Section 3-l-804(l)(c), MCA, requires that the motion be brought within the following time:

When a judge is assigned to a cause for twenty (20) consecutive days after service of summons ... and no motion for substitution of judge has been filed within said time period, the right to move for substitution of a judge shall be deemed waived.

The judge for whom substitution is sought has jurisdiction to determine timeliness, and if the motion for substitution is untimely, shall issue an order declaring the motion void. Section 3-l-804(l)(e), MCA.

In this instance, the court declared the motion for substitution, filed on March 1, 1991, void because summons had been served on defendant Remick on January 9, 1991, more than 20 days previous. The Challinors, however, contend that their motion for substitution was timely because it was filed only three days after summons was served on the co-defendant, Glacier National Bank. They assert that in a case such as this where there are multiple defendants, the time period for moving for a substitution of judge should run from the date service of summons is complete rather than from the date the first defendant is served.

The bank responds that the judicial substitution statute should be interpreted to require a plaintiff to move for substitution within 20 days after the first defendant is served. The time period for one or more defendants to exercise the right to substitution would then vary depending on the time each defendant is served.

Section 3-1-804, MCA, which entitles each party in a proceeding to one substitution of a judge, was created by an order of this Court dated June 17, 1987. As written, the statute sets forth a time period for exercising this right which is 20 consecutive days “after service of summons.” While the statute is not clear with regard to multiple defendants, we hold that this phrase contemplates that the time should run from the completion of service of process. A reasonable interpretation of the statute, which would also ensure the most consistent application of this provision, is that the right of any party named in the original complaint, or any complaint amended without order of the court, to move for judicial substitution is not waived until a judge is assigned to a cause for 20 consecutive days after all of the defendants have been served. Consequently, a motion made by any party within 20 days after completion of service of process is timely.

While the concerns expressed in the dissent are noted and well-taken, it is the opinion of the majority that those concerns are best addressed by a prospective rule change, rather than an after-the-fact interpretation which adds limitations on disqualification that had not previously been in the rule.

In this case, the Challinors timely moved for substitution of the District Court Judge three days after service of process was completed. Therefore, we conclude that the court erred when it dismissed the motion and did not allow the Challinors to exercise their statutory right to substitution of the District Court Judge.

Pursuant § 3-l-804(l)(a), MCA, once the motion for substitution of judge was timely filed, Judge Keller was without jurisdiction to act on the merits of the case, including consideration of the bank’s motion for summary judgment. Taylor, 863 P.2d at 1024. Because the court was without jurisdiction to consider the merits of the bank’s arguments, we decline to review the merits of the District Court’s order granting defendants’ motion for summary judgment. Accordingly, the order granting the bank’s motion for summary judgment is vacated and this matter remanded for a new hearing after a substitution of judge.

JUSTICES HARRISON, GRAY and NELSON concur.

JUSTICE HUNT did not participate in this decision.

JUSTICE WEBER

dissents as follows:

Following are pertinent provisions of § 3-1-804, MCA, which should be considered on the issues in this case:

3-1-804. Substitution of district judges.
1. Amotion for substitution of a district judge may be made by any party to a proceeding only in the manner set forth herein. In a civil or criminal case, each adverse party, including the state, is entitled to one substitution of a district judge.
(b)... It shall be the duty of the clerk of court to stamp the name of the judge to whom the case is assigned on the face of the initial pleading, complaint, order to show cause, or information, and all copies thereof.
(c) When a judge is assigned to a cause for (20) consecutive days after service of summons, or ten (10) days after service of an order to show cause, information or other initiating document, and no motion for substitution of judge has been filed [within] said time period, the right to move for substitution of a judge shall be deemed waived. ... After the time period shall have run as to the original parties to the proceeding, no party who is joined or intervenes thereafter shall have any right of substitution, except that one third party defendant who is not an original party in any pending case may have a right of one substitution within twenty (20) days after the service upon the third party defendant of a third party complaint.
(e) Any motion for substitution which is not timely filed is void for all purposes. The judge for whom substitution is sought shall have jurisdiction to determine timeliness, and if the motion for substitution is untimely, shall make an order declaring the motion void.

The following are key points to be considered in this case: A motion for substitution may be made “only” in the manner set forth in the rule. In a civil case each party is entitled only to “one” substitution. The clerk of court stamps the name of the judge to whom the case is assigned on the face of the complaint with the result that the Challinors had knowledge of the judge to whom the case was assigned from the time of filing of their complaint.

In substance the majority opinion concludes:

Areasonable interpretation of the statute, which would also ensure the most consistent application of this provision, is that the right of any party ... to move for judicial substitution is not waived until a judge is assigned to a cause for 20 consecutive days after all of those defendant have been served.

I disagree with the conclusion that the foregoing is a reasonable interpretation of § 3-1-804, MCA.

On November 28, 1990, the plaintiffs Challinors filed their complaint and had knowledge on that date that Judge Keller had been assigned the case. On January 9, 1991, Challinors caused the summons to be served on defendant Remick. On February 26, 1991, Challinors caused the summons to be served on Glacier National Bank.

At issue here is the time allowed to plaintiffs Challinors to file their motion for substitution. Because the rule triggering date is the date of service of summons, even though Challinors knew the identity of the assigned judge on November 28,1990, the earliest date on which the rule could be applied to them is 20 days after the service of summons on Remick on January 9, 1991.1 suggest that the reasonable interpretation of the rule is that within 20 days after the summons was served on Remick on January 9, 1991, the Challinors and Remick were required to file any motion for substitution. I further suggest that within 20 days after February 26, 1991, when summons was served on the Bank, it was required to file any motion for substitution.

The foregoing interpretation is consistent with the statute which emphasizes that a motion must be made as provided only in the rule. This interpretation is fair to plaintiffs Challinors as it gives them from November 28, 1990 to January 29, 1991 within which to make a motion for substitution. As to defendant Remick he would have until January 29,1991. The Bank after being served on February 26,1991, would have until March 18, 1991, in which to file a motion.

The rule is already more than fair,to plaintiff's such as the Challinors as they are granted 20 days after service of summons, even though they have had knowledge of the judge to whom the case was assigned from the date of the filing of their complaint. I emphasize that the majority opinion essentially eliminates the primary purpose of the rule which is to require substitution to take place promptly and thereby eliminate that which is now allowed under the majority opinion — in a multi-defendant case, all the plaintiff need do is wait to serve one named defendant or John Doe defendant, and he then preserves the right to move for substitution of the judge until any time he chooses in the course of the litigation. The obvious purpose of the rule is to keep from having the rule interpreted as the majority has done. The result of the majority opinion is that where one named party has not been served, the plaintiff or plaintiffs and all defendants may control the litigation by moving to substitute a judge at any stage of the proceeding, including at the time of trial. Obviously nothing of that nature was contemplated under the rule.

From the wording of the majority opinion, it appears that the majority may have been influenced by the fact that within three days after the service on the Bank, the Challinors did file a motion for substitution which was three days after the service on the Bank and only a relatively short time after the service on Remick. If that time frame influenced the majority, I would point out that under my suggested interpretation of the rule which would require the Challinors to file their motion by January 29,1991, they were given 60 days from the date on which they acquired the knowledge of the name of the district judge to whom their case was assigned. Sixty days is an ample time.

I would affirm the determination of the District Court.

CHIEF JUSTICE TURNAGE concurs in the foregoing dissent.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. GERALD THOMAS DAVIDSON, Defendant and Appellant.
    No. 92-593.
    Submitted on Briefs August 4, 1994.
    Decided September 14, 1994.
    51 St.Rep. 867.
    266 Mont. 404.
    880 P.2d 1331.

      For Appellant: Arnold A. Berger, Berger Law Firm, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Elizabeth L. Griffing, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Defendant Gerald Davidson was charged by information filed in the District Court of the Thirteenth Judicial District in Yellowstone County with deliberate homicide in violation of § 45-5-102, MCA. During pretrial proceedings, Davidson filed a notice of intent to rely on the defense of mental disease or defect. Therefore, pursuant to § 46-15-323, MCA, the District Court ordered Davidson to provide the State with copies of reports from those witnesses who would be called in support of that defense. Davidson refused to exchange the reports and was precluded by order of the District Court from offering evidence of mental disease or defect. Following a trial by jury, Davidson was convicted of deliberate homicide. He appeals the District Court’s order excluding evidence of mental disease or defect. We affirm the District Court.

The issue on appeal is:

Do Montana’s reciprocal discovery statutes, specifically, §§ 46-15-323, -328, and -329, MCA (1991), violate the Fifth, Sixth, and Fourteenth Amendments of the Federal Constitution and Article II, Section 25, of the Montana Constitution?

FACTUAL BACKGROUND

Defendant Gerald Davidson was involved in a sometimes turbulent relationship with Pamela Moberly, a 20-year-old Billings woman. Following an argument, and Pamela’s attempt to leave the relationship, he strangled Pamela and shot her at least two times in the head.

On September 11, 1990, the State filed its information charging Davidson with deliberate homicide.

On October 12,1990, Davidson moved for a psychiatric evaluation. The District Court granted the motion on October 26, 1990, and an examination was ordered by Dr. Donald Harr. Dr. Harr was directed to submit a report to the District Court in triplicate, including the elements set forth in § 46-14-203, MCA (1989). After several delays, Dr. Harr filed his report with the District Court on January 23,1991.

Davidson was later examined by three additional psychiatrists or psychologists. On October 15, 1991, Davidson gave notice under § 46-14-201, MCA (1989) (now § 46-15-323(3) in relevant part), of his intention to rely on mental disease or defect as a defense. The notice did not specify the names and addresses of the persons he intended to call as witnesses at the trial to support his defense as required by § 46-14-201 MCA (1989) (now § 46-15-323(4) in relevant part). On October 24, 1991, the State moved for disclosure of the names, addresses, and any statements or reports that are required to be disclosed under § 46-15-323, MCA (1991).

At an omnibus hearing on October 25, 1991, defense counsel advised the District Court that he would not provide the information requested by the State’s motion. Defense counsel stated that he believed disclosing the documents, written reports, and medical examiners’ statements could not be done without disclosing privileged or incriminating information. Recognizing Davidson’s concern that some of the information contained in the witness reports may be privileged or incriminating, the District Court ordered Davidson to avail himself of provisions in § 46-15-328, MCA, regarding any information that was non-discoverable because of privilege or otherwise. The District Court alerted counsel to the fact that § 46-15-328, MCA, provides for protective orders and for excising any information that may incriminate the defendant, or is cloaked with a privilege. Davidson still refused to submit the reports. After this issue was submitted on briefs, the District Court ordered Davidson to turn the reports over to the State.

After failing to comply with the District Court’s order, Davidson sought a writ of supervisory control from this Court. Davidson’s petition argued that the District Court’s disclosure order violated the due process clause of the Fourteenth Amendment to the United States Constitution. On January 7, 1992, this Court upheld the District Court’s order, with a slight modification that limited the order to persons who would be called as witnesses at trial. Davidson still refused to comply with the discovery order.

On March 13,1992, the State moved in limine to preclude evidence at trial from Davidson in support of the defense of mental disease or defect. On April 3, 1992, at oral argument regarding the State’s motion in limine, defense counsel advised the District Court that it should grant the State’s motion. Counsel stated that he felt the statutes requiring disclosure were unconstitutional, and therefore, would not provide the requested information. Davidson was personally advised by the District Court that his counsel's actions would deprive him of a possible defense at trial. Davidson conferred with his attorney and agreed that he understood that non-disclosure would eliminate his right to rely on mental disease or defect as a defense at trial. Accordingly, on April 7, 1992, the District Court granted the State’s motion in limine and precluded Davidson from offering evidence in support of the defense of mental disease or defect.

Davidson was ultimately tried by a jury and convicted of deliberate homicide. On September 16,1992, Davidson filed his notice of appeal.

DISCUSSION

Do Montana’s reciprocal discovery statutes, specifically, §§ 46-15-323, -328, and -329, MCA (1991), violate the fifth, Sixth, and Fourteenth Amendments of the Federal Constitution and Article II, Section 25, of the Montana Constitution?

When we consider whether a statute is constitutional, there is a strong presumption in favor of the statute’s validity. The party challenging a statute’s constitutionality has the burden of proving it unconstitutional. State ex rel. Dreher v. Fuller (1993), 257 Mont. 445, 448, 849 P.2d 1045, 1047. In determining whether the District Court properly imposed sanctions by precluding Davidson from producing evidence of mental disease or defect, this Court considers whether the District Court clearly abused its discretion. The statutory scheme provides that the district court “may” disallow testimony, hence it is a matter left to the district court’s discretion. Absent a clear abuse of discretion, the district court’s decision must be upheld. State v. Waters (1987), 228 Mont. 490, 495, 743 P.2d 617, 621.

We note at the outset that Davidson raised nearly the exact same issues in his initial petition for writ of supervisory control that he now raises on appeal. This Court, on January 7, 1992, accepted supervisory control and, with slight modification, upheld the District Court’s disclosure order. Thus, the issue was substantively decided and Davidson could be precluded from relitigating this issue. See State v. Zimmerman (1977), 175 Mont. 179, 185, 573 P.2d 174, 177-78. However, since our prior decision was issued in summary fashion, we now farther discuss the issues raised by Davidson’s appeal.

Davidson asserts that §§ 46-15-323(3), (4), and (6), and -329, MCA (1991), violate the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution, and Article II, Section 25, of the Montana Constitution. The challenged portions of § 46-15-323, MCA (1991), state:

(3) Within 10 days after receiving a report of the defendant’s mental condition from a psychiatrist or psychologist or at a later time as the court may for good cause permit, the defendant shall provide the prosecutor with a written notice of the defendant’s intention to introduce evidence at trial of the defense that due to a mental disease or defect, the defendant did not have a particular state of mind that is an essential element of the offense charged.
(4) The notice must specify for each defense the names and addresses of the persons, other than the defendant, whom the defendant may call as witnesses in support of the defense, together with all written reports or statements made by them concerning the results of physical examinations, scientific tests, experiments, or comparisons, except that the defendant need not include a privileged report or statement unless he intends to use the privileged report or statement, or the witness who made it, at trial.
(6) Within 10 days after the omnibus hearing in district court or at a later time as the court may for good cause permit, the defendant shall make available to the prosecutor for testing, examination, or reproduction:
(a) the names, addresses, and statements of all persons, other than the defendant, whom the defendant may call as witnesses in the defense case-in-chief, together with their statements;
(b) the names and addresses of experts whom the defendant may call at trial, together with the results of their physical examinations, scientific tests, experiments, or comparisons, including all written reports and statements made by these experts in connection with the particular case; and
(c) all papers, documents, photographs, and other tangible objects that the defendant may use at trial.

Davidson did provide notice of his intent to introduce evidence of mental disease or defect as required by subsection (3), but did not comply with subsection (4) which requires a defendant to provide the names and addresses of the witnesses and their written reports or statements. Since he did not comply with the discovery requirements, the District Court imposed sanctions under § 46-15-329, MCA(1991). That section states that a district court may impose any sanction it finds just under the circumstances; among the options listed are precluding a party from calling a witness, offering evidence, or raising a defense that is not disclosed. Because Davidson did not provide the requisite items, the District Court granted the State’s motion in limine which precluded him from offering evidence of mental disease or defect at trial.

This Court previously affirmed Montana’s reciprocal discovery provisions against attack on the same constitutional grounds in State ex rel. Carkulis v. District Court (1987), 229 Mont. 265, 746 P.2d 604, appeal dismissed, Carkulis v. Montana (1988), 487 U.S. 1201, 108 S. Ct. 2839, 101 L. Ed. 2d 877. We likewise upheld Montana’s discovery statutes in subsequent cases. See State v. Miller (1988), 231 Mont. 497, 757 P.2d 1275 (prohibiting defendant from offering testimony of a private investigator for impeachment because defendant failed to disclose the private investigator’s report); State v. Kills on Top (1990), 241 Mont. 378, 787 P.2d 336 (holding that defendant could not claim error in part because he did not request the district court to review the witness reports in question which would allow the district court to review the statements and excise incriminating information).

In Carkulis, the defendant refused to disclose materials he was ordered to disclose. The district court held that based on his refusal to provide discovery, the evidence sought could not be introduced at trial. The defendant filed a petition for writ of supervisory control with this Court. Carkulis claimed that the reciprocal discovery statutes violated his rights against self-incrimination basea on the Fifth Amendment, Article II, Section 25, of the Montana Constitution, and due process rights guaranteed by the Fourteenth Amendment. We concluded, relying in part on State ex rel. Sikora v. District Court (1969), 154 Mont. 241, 462 P.2d 897, that not all evidence obtained from a defendant is privileged under the Fifth Amendment.

In Sikora, this Court discussed the constitutionality of § 95-1803(d), RCM (1947), which was repealed but substantially incorporated into § 46-15-323, MCA (1991). Sikora dealt specifically with the prior discovery statutes in cases involving the defenses of insanity, self-defense, and alibi. We reasoned that giving notice of a defense does not incriminate a defendant because the Constitution does not protect a defendant from consequences of claiming a defense. Nor does the Constitution assure a defendant the right to defend in a manner that denies the State a chance to examine the truthfulness of a defendant’s position. Sikora, 462 P.2d at 899. The purpose of reciprocal discovery provisions is to provide notice and prevent surprise. Sikora, 462 P.2d at 899. Citing previous cases, we recognized that a criminal trial is not considered a game of concealment, but rather a search for the truth. Sikora, 462 P.2d at 901.

The previous discovery statute, as discussed in Sikora, 462 P.2d at 902, did not infringe upon the privilege against self-incrimination because it “in no manner compels a defendant to give evidence other than that which he will voluntarily and without compulsion give at trial.” A defendant’s privilege is not abridged if the defendant chooses to remain silent or not call any witnesses regarding his or her sanity.

In Carkulis, we also relied on Williams v. Florida (1970), 399 U.S. 78, 90 S. Ct. 1893, 26 L. Ed. 2d 446, Which upheld a Florida statute requiring the defense to disclose an alibi witness to the state before trial. The Court in Williams based its decision on the theory of “accelerated disclosure.” It reasoned that because at the trial the defendant would have to reveal his alibi and witnesses; accelerating disclosure does not affect constitutional rights against self-incrimination. Williams, 399 U.S. at 85, 90 S.Ct. at 1898 (stating that the Fifth Amendment does not grant a defendant a constitutional right to wait until after the prosecution’s case in chief before announcing the nature of his defense). Partly because without disclosure the prosecution may suffer from surprise, and partly because Montana’s discovery statutes provide protections for defendants, such as protective orders found in § 46-15-328, MCA, the Carkulis Court held that a defendant must provide the State a list of all witnesses he intends to call at trial. Carkulis, 746 P.2d at 609.

Discussing the issue of whether or not a defendant must surrender copies of statements obtained by the defendant, and statements of witnesses the defendant would call at trial, we acknowledged in Carkulis that two states had refused to allow pretrial disclosure of witness lists or statements. Carkulis, 746 P.2d at 610 (citing Scott v. State (Alaska 1974), 519 P.2d 774; In re Misener (Cal. 1985), 698 P.2d 637.)

Davidson reasserts arguments relying on those cases. However, both of those cases were based on state constitutional law, not United States Supreme Court decisions. Thus, Alaska and California decided to interpret their constitutions more broadly than the U.S. Supreme Court had construed the Fifth Amendment in Williams. In those cases, the courts disallowed pretrial exchange of witness lists and witness statements because they felt it was testimonial and stated such information may tend to be incriminating in some cases. Carkulis, 746 P.2d at 610. However, as we did not find defendant’s reliance on those cases persuasive in Carkulis, we do not find Davidson’s reliance persuasive here. In fact, Misener, is no longer the law in California. See Izazaga v. Superior Court (Cal. 1991), 815 P.2d 304 (upholding the prosecution’s motion to compel formal discovery in a rape and kidnapping case and recognizing California’s discovery provisions as a two-way street).

In Carkulis, we noted that our analysis applied equally to pretrial disclosure of prospective expert witnesses. We were careful then, and we reiterate now, that district courts should exercise caution because examinations by experts require the defendant to communicate freely and candidly. As a result, an expert’s notes or reports may contain possibly incriminating information to which the State is not entitled. Carkulis, 746 P.2d at 611 (citing Malloy v. Hogan (1964), 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d. 653. In Carkulis, 746 P.2d at 611, we were particularly careful to mention that psychologists’ and psychiatrists’ reports may contain incriminating statements, which should, after in camera inspection, be excised from the material produced.

We reiterate the importance of Montana’s protective order provisions in § 46-15-328, MCA. We do not hold that a criminal defendant is required to disclose an incriminating statement. In this case, however, Davidson was specifically advised of his right to avail himself of the statute’s protective provisions and declined. Instead, he refused to provide any information.

Davidson personally agreed with this procedure after his counsel decided to challenge the constitutionality of Montana’s statutes, despite counsel’s knowledge of the Carkulis decision. Because Davidson did not attempt to utilize the protective order provisions, his claims must fail. See Kills on Top, 787 P.2d at 344 (stating that because defendant did not request a protective order, and the district court record did not contain evidence of prejudice, that defendant’s argument was merely academic).

Davidson also relies on Smith v. McCormick (9th Cir. 1990), 914 F.2d 1153. In that case, the defendant requested the court to reconsider his previous guilty plea where he requested the death sentence, and requested a psychiatric evaluation. The court granted the evaluation on the condition that the results be provided to the court. At issue in Smith were questions of an indigent defendant’s due process rights, and whether they were violated because psychiatric assistance was conditioned upon disclosure. The court’s discussion focused on whether or not the defendant was entitled to a competent psychologist or psychiatrist who could conduct appropriate exams and assist in preparing the defense without being required to disclose his or her opinion to the State or the court. It did not involve discovery rules which relate to witnesses a defendant intends to call at trial.

We are not here confronted with the same issue. First, Smith did not involve a challenge based on Fifth Amendment rights. Second, Smith did not involve a challenge to Montana’s statutes that require disclosure of a psychiatric report after notice of mental disease or defect. Third, nothing here prevented Davidson from being examined by psychiatrists of his choice. In fact, the court appointed Dr. Harr to examine Davidson at his first request. Furthermore, Davidson was examined by several other psychiatrists and psychologists. Thus, Davidson was entitled to a neutral and independent psychiatrist to assist and evaluate whether or not the mental disease or defect claim was advisable.

Montana’s reciprocal discovery provisions allow a defendant to be examined by as many psychiatrists as a defendant desires to prepare a defense. He or she must only disclose statements of those that are to be called as witnesses at trial. Defendants are allowed to communicate freely with a psychiatric expert and need disclose nothing unless the expert is to be called as a witness. See United States v. Alvarez (3d Cir. 1975), 519 F.2d 1036, 1046. Furthermore, even in Smith, 914 F.2d at 1160 (citing United States v. Nobles (1975), 422 U.S. 225, 240, n.15, 95 S.Ct. 2160, 2171, n.15, 45 L.Ed.2d. 141, 154-55, n. 15), the court recognized that the attorney-client privilege extends only to the “point of testimonial use of that communication.” We hold that the discovery provisions found at § 46-15-323, MCA, do not violate the Fifth and Fourteenth Amendment’s of the United States Constitution, or Article II, Section 25, of the Montana Constitution.

Davidson also argues that his Sixth Amendment rights were violated. Davidson fails to specify which of his Sixth Amendment rights, nonetheless, Sixth Amendment arguments were also litigated and decided in Carkulis. The United States Supreme Court has recognized in Nobles, 422 U.S. at 240-41, 95 S.Ct. at 217-72, that the Sixth Amendment does not grant the right to assert half truths and is subject to legitimate demands of the adversarial system. Citing Nobles, in Carkulis we agreed that the Sixth Amendment does not confer the right to give testimony free from the demands of the adversarial system. Carkulis, 746 P.2d at 616. We also conclude that the discovery provisions found at § 46-15-323, MCA, do not violate the Sixth Amendment of the United States Constitution.

Davidson next challenges the constitutionality of § 46-15-329, MCA, which allows a district court to impose sanctions on a defendant who fails to comply with discovery requirements. Again, Carkulis is dispositive.

Once it is determined, as we have determined here, that reciprocal pretrial disclosures subject to constitutional or statutory limitations are permissible, it goes hand in hand with that determination to say that the District Court may exercise its judicial discretion in enforcing such permissible disclosures.

Carkulis, 746 P.2d at 616. Likewise, in later opinions we recognized that § 46-15-329, MCA, is consistent with the goal of reciprocal discovery to “enhance the search for truth.” See Waters, 743 P.2d at 620. As mentioned above, this Court defers to the district court’s discretion regarding the imposition of sanctions. Waters, 743 P.2d at 621; State v. Van Voast (1991), 247 Mont. 194, 202, 805 P.2d 1380, 1385.

In this case, Davidson repeatedly refused to comply with orders by the District Court and from this Court requiring him to comply with the discovery provisions. Therefore, we conclude that in an effort to enforce the reciprocal discovery statutes, the District Court did not abuse its discretion by excluding evidence of mental disease or defect.

Accordingly, we affirm the District Court and hold that Montana’s reciprocal discovery statutes for criminal proceedings, specifically §§ 46-15-323(3), (4), and (6), and -329, MCA, do not violate the Federal or Montana Constitutions.

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


author: JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOHN BERNARD BENSON, Defendant and Appellant.
    No. 93-481.
    Submitted on Briefs August 11, 1994.
    Decided September 15, 1994.
    51 St.Rep. 892.
    266 Mont. 415.
    880 P.2d 1338.

      For Appellant: William Hooks, Appellate Defender, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; and Vicki Knudsen, Musselshell County Attorney, Roundup.
   JUSTICE HARRISON

delivered the Opinion of the Court.

John Bernard Benson (Benson) appeals his conviction in the District Court of the Fourteenth Judicial District, Musselshell County, of the offense of burglary. We reverse.

Sometime between 2 a.m. and 5 a.m. the morning of January 23, 1993, the Melstone Bar and Cafe in Melstone, Montana, was burglarized. The owners of the establishment reported that money, lottery tickets, liquor, food, and tobacco products were stolen. Deputy Floyd Fisher (Deputy Fisher), the investigating officer, found no apparent signs of forced entry.

After receiving an anonymous tip Ion January 24 that some of the missing liquor might be found in B.J. Mumion’s (Mumion) father’s garage, Deputy Fisher proceeded to Murnion’s residence. Deputy Fisher obtained Mumion’s father’s consent to search his garage and Murnion’s consent to search his trailer. Deputy Fisher seized several items, including alcoholic beverages, cigarettes, and plastic wrap and wax paper believed to be used in the Melstone Bar and Cafe for food preparation. Mumion told Deputy Fisher that Benson and two others had brought the alcoholic beverages to Murnion’s trailer on the night of January 22. ¡

After seizing the items at Murnion’s place, Deputy Fisher proceeded to Benson’s residence. After obtaining Benson’s consent to search his trailer, Deputy Fisher seized several items, including alcoholic beverages, tobacco products, and lottery tickets stamped “Melstone Bar and Cafe.”

The Musselshell County Attorney filed an information charging Benson with the crime of burglary, a felony. Ajury trial was held from May 24, 1993 through May 28, 1993. At the close of the State’s case, Benson moved for a directed verdict. The District Court denied this motion. Following the trial, Benson was found guilty, and received a three-year deferred sentence with several conditions.

Benson raises only one issue on appeal: whether the District Court erred by failing to grant his motion for directed verdict.

The standard of review for a trial court’s refusal to grant a defendant’s motion for directed verdict is whether, after reviewing the evidence in a light most favorable to the prosecutor, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Mummey (1994), 264 Mont. 272, 275, 871 P.2d 868, 870.

Burglary is defined by statute as follows: “A person commits the offense of burglary if he knowingly enters or remains unlawfully in an occupied structure with the purpose to commit an offense therein.” Section 45-6-204(1), MCA. Benson contends that while the State may have shown that someone unlawfully entered the Melstone Bar and Cafe, it did not prove beyond a reasonable doubt that he unlawfully entered.

At trial, evidence was presented to the effect that the owners of the Melstone Bar and Cafe suspected that copies of a key opening their business’ door were in the possession of unknown persons in the community. Also, Deputy Fisher testified that he examined some footprints in the snow leading into and out of the building through that same door. No evidence was introduced that Benson had possession of such a key other than testimony that there was a nondescript outline of something in the dust on top of Benson’s water heater. The footprints were never compared to any of Benson’s footwear. We hold that there is no direct evidence that Benson unlawfully entered the Melstone Bar and Cafe.

The State contends that it sufficiently proved the element of unlawful entry with circumstantial evidence, and that Benson’s possession of the stolen lottery tickets and items consistent with some of those stolen from the Melstone Bar and Cafe, combined with the other evidence introduced, is enough to support his conviction. We disagree.

A conviction for burglary may be upheld if possession of stolen property is accompanied by other incriminating circumstances and a false or unreasonable explanation by the accused. State v. Floyd (1990), 243 Mont. 269, 273, 790 P.2d 475, 478; citing State v. Cox (1987), 226 Mont. 111, 114, 733 P.2d 1307, 1309. In Floyd, the defendant was in possession of a gold necklace identified at trial as property stolen from an apartment. Floyd, 790 P.2d at 478. Testimony at trial placed the defendant in the same building as the burglarized apartment on the night of the burglary and demonstrated that he had possession of the necklace during the time frame that the apartment was burglarized. Floyd, 790 P.2d at 476. In addition, the defendant offered a fabricated explanation of his possession of the stolen necklace which was refuted at trial. Floyd, 790 P.2d at 478.

In Cox, the defendant was apprehended across the street from a burglarized garage in possession of items stolen from the garage. Cox, 733 P.2d at 1309. The burglary occurred between 10 p.m. and 2 a.m., and the defendant was apprehended at 2 a.m. Cox, 733 P.2d at 1310. The defendant also falsely claimed that stolen items, positively identified by the true owner, were his own and then reached for a gun when confronted by those who detainedhim. Cox, 733 P.2d at 1309-10.

In the present case, more than twenty-four hours after the burglary, Benson was found in possession of lottery tickets stolen from the Melstone Bar and Cafe. He was also found in possession of other items consistent with, but not identified as, those stolen from the Melstone Bar and Cafe. Benson and two others testified that they were driving around Melstone during the approximate time frame of the burglary. This testimony, considering the size of Melstone, places them near the scene of the burglary. Arguably, this is an additional incriminating circumstance. However, no false or unreasonable explanation necessary to sustain the conviction exists.

Benson explained that the alcoholic beverages found in his trailer were there in anticipation of his upcoming birthday party. This testimony was uncontroverted and it was not unreasonable as an explanation. Benson testified that he did not know anything about the stolen lottery tickets found under his bed. This testimony was also unrebutted and was not proven false. In addition, it was not inherently unreasonable as an explanation considering that other individuals were in Benson’s trailer the night of the burglary, and the next day.

Finally, the State failed to show by direct or circumstantial evidence that Benson unlawfully entered the Melstone Bar and Cafe with the purpose to commit an offense. We conclude that, in this case, no rational trier of fact could have found all of the elements of burglary beyond a reasonable doubt. We therefore hold that the District Court erred in denying the motion to dismiss. Reversed and remanded.

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


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MATTHEW C. FULLER, Defendant and Appellant.
    No. 94-113.
    Submitted on Briefs August 4, 1994.
    Rehearing Denied Oct. 13, 1994.
    Decided September 15, 1994.
    51 St.Rep. 890.
    266 Mont. 420.
    880 P.2d 1340.

      For Appellant: Gary E. Wilcox, Chief Deputy Public Defender, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Ass’t Attorney General, Helena; and Dennis Paxinos, Yellowstone County Attorney, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

Matthew C. Fuller (Fuller) appeals his conviction of three counts of attempted sexual assault, and the judgment entered thereon, following a bench trial conducted in the Thirteenth Judicial District Court, Yellowstone County. We reverse, concluding that the conviction is contrary to law.

The State of Montana (State) charged Fuller by information with three counts of felony attempted sexual assault pursuant to §§ 45-4-103 and 45-5-502, MCA. He subsequently was tried by the District Court.

Testimony regarding the underlying facts was largely undisputed. On November 25, 1992, Fuller drove from his home in Roundup and parked outside an elementary school in Billings. At approximately 3:00 p.m., as the school day ended, he followed three young girls down Nutter Boulevard in his vehicle. Two of the girls, L.S. and P.M., testified that Fuller first honked his horn and made the comment “nice butt” in their general direction as he drove by. A few minutes later he approached again, this time driving on the wrong side of the street. According to L.S. and P.M., Fuller then pulled up on the sidewalk directly alongside them and stated ‘let’s do it” while sticking out his tongue and licking his lips.

The third girl, T.R., testified she heard a horn honk as the three girls left the school area together. She first noticed Fuller when he pulled up onto the Nutter Boulevard sidewalk; at that point, T.R. started running and did not hear the comments about which the other girls testified. Contrary to the testimony of L.S. and P.M., T.R. testified that Fuller’s passenger, as opposed to driver’s, side wheels were pulled up on the sidewalk. None of the girls testified that Fuller ever stopped the car, opened his door, or reached out for them in any way.

Billings Police Detective Dave Hinkel also testified. Hinkel related that, during a post-arrest interview, Fuller admitted that “he was on the very edge of having a significant problem sexually with children” and that he believed himself to be a pedophile.

The District Court announced its decision and findings orally after the trial and adopted the State’s Proposed Findings of Fact and Conclusions of Law. It found Fuller guilty of the offenses as charged. The court subsequently imposed sentence and entered judgment. Fuller appeals.

The dispositive issue before us is whether the District Court’s finding that there was insufficient evidence to establish a necessary element of the offense beyond a reasonable doubt renders the conviction invalid as a matter of law.

Our usual standard of review following a criminal conviction is whether, viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. State v. Riley (1992), 252 Mont. 469, 470, 830 P.2d 549, 550; citing Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573. This case presents an issue relating to the fundamental principle subsumed in this standard: that the prosecution must establish each and every element of the charged offense by proof beyond a reasonable doubt. See Jackson, 443 U.S. at 316, 99 S.Ct. at 2787.

Fuller was convicted of attempted sexual assault. To be guilty of the underlying offense of sexual assault, a person must knowingly subject another person to “sexual contact” without consent. Section 45-5-502, MCA. Sexual contact requires a touching of the sexual or other intimate parts of the victim for the purpose of arousing or gratifying the sexual desire of either party. Section 45-2-101(60), MCA. An “attempt” requires proof that the defendant, with the purpose of committing the underlying offense, took any act toward commission of the offense. Section 45-4-103(1), MCA.

Here, the District Court found as follows during the oral pronouncement of its decision:

In this particular case if an actual touching is a required element, and arguably it is, then a not guilty verdict is the only appropriate verdict because the evidence does not show beyond a reasonable doubt that the defendant intended to actually touch the victims.

(Emphasis added.) By adopting the State’s proposed findings and conclusions, the court also found:

[T]hat the evidence is sufficient to prove the defendant guilty of the offense of Attempt Sexual Assault (Felony) as alleged in Counts I, II, and III of the Information Beyond A Reasonable Doubt.

(Emphasis added.) The District Court found Fuller guilty on all three counts of felony attempted sexual assault.

Applying the statutory definitions of the offense of attempted sexual assault to the District Court’s first quoted finding, it is clear that the court found insufficient evidence to establish that Fuller acted with the purpose of committing the underlying offense of sexual assault. The trier of fact having found that the State did not meet its burden on this necessary element of the offense of attempted sexual assault, Fuller must be acquitted of the offense.

The State argues that we should consider the District Court’s findings in their entirety and divine the court’s intent. The State’s position is that the court’s statements, taken as a whole, demonstrate the court’s intent to find Fuller guilty and, therefore, the conviction is legally supportable. Such an approach would require us to speculate as to which “finding” should receive the greater weight; we are not in a position to do so. More importantly, we cannot proceed past the court’s first quoted finding. Our review must end when the district court, sitting as the trier of fact, finds that an essential element of the offense has not been established by proof beyond a reasonable doubt. See Jackson, 443 U.S. at 316, 99 S.Ct. at 2787.

Reversed and remanded with instructions that a judgment of acquittal be entered on all charges.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LORETTA WARD, Defendant and Appellant.
    No. 93-656.
    Submitted on Briefs August 4, 1994.
    Decided September 15, 1994.
    51 St.Rep. 885.
    266 Mont. 424.
    880 P.2d 1343.

      For Appellant: Sarah Arnott Ozment, Attorney at Law, Livingston.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Barbara C. Harris, Assistant Attorney General, Helena; and Robert L. Jovick, Livingston City Attorney, Livingston.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Defendant Loretta Ward was convicted of misdemeanor assault in Livingston City Court in Park County. Ward was fined $120 and required to pay $132.75 to the victim as restitution for her medical expenses. Ward subsequently filed a notice of appeal and a request to transfer her records to the District Court of the Sixth Judicial District in Park County. The District Court directed her to post a $1000 cash appearance bond, or a commercial surety bond, within ten days. The court notified her that failure to post the bond would result in dismissal of her appeal and reinstatement of the City Court judgment. Ward did not pay the appearance bond and her appeal to the District Court was subsequently dismissed. From this judgment, Ward appeals. We reverse the judgment of the District Court.

The following issue is dispositive on appeal:

Did the District Court err when it required defendant to post a $1000 appearance bond and dismissed defendant’s appeal based on her failure to post the bond?

FACTUAL BACKGROUND

Ward was charged by complaint with assaulting Sharon LaTreille on or about March 31, 1993. It was alleged that Ward picked up LaTreille and shoved her against a wall, in violation of § 45-5-201(l)(c), MCA. On July 14,1993, Ward appeared pro se, waived her right to a jury trial, and was convicted in Livingston City Court of misdemeanor assault, in violation of § 45-5-201, MCA.

On July 30, 1993, Ward was sentenced to pay a fine of $120 and restitution in the amount of $132.75 to the victim for her medical expenses. On August 9,1993, Ward filed a motion with the City Court for a stay of execution pending an appeal. That motion was granted. On the same date, Ward requested that the City Court transfer the record to the District Court. She then appealed to the District Court from the final judgment entered by the City Court.

On August 27,1993, the District Court issued an oral order stating that:

[D]efendant is directed to post an appearance bond of $1000 cash or commercial surety bond within the next ten (10) days or her appeal from Livingston City Court on a misdemeanor assault charge shall be dismissed and the City Court judgment reinstated.

On September 9, 1993, Ward filed an objection to the District Court’s imposition of an appearance bond based on our prior decision in State ex rel. Abbitt v. Justice Court of Lake County (1986), 220 Mont. 210, 714 P.2d 140. In Abbitt, 714 P.2d at 142, we held that “there is no statutory provision in an appeal from a criminal conviction in the justice court for the filing of an appeal bond.”

On September 22,1993, by oral order of the District Court, Ward’s objection to the appearance bond was denied. The District Court stated:

[I]f she desires to have a trial de novo in district court, she must post a $1000 cash or commercial surety bond within ten (10) days hereafter, or her appeal will be dismissed and the city court judgment reinstated.

On October 26,1993, after Ward failed to post an appearance bond as directed by the District Court, her appeal was dismissed and the City Court’s judgment reinstated.

On November 24, 1993, Ward filed her notice of appeal with this Court. She originally requested that this Court issue a writ of supervisory control, declaring that the District Court may not require an appearance bond in this matter. However, she subsequently withdrew that request. Therefore, we do not discuss the merits of supervisory control.

DISCUSSION

Did the District Court err when it required defendant to post a $1000 appearance bond and dismissed defendant’s appeal based on her failure to post the bond?

When we review a district court’s dismissal of an appeal from a city court judgment based on an issue of law, we will uphold the district court’s action, unless the district court incorrectly interpreted the law. In re Marriage of Barnard (Mont. 1994), 870 P.2d 91, 93, 51 St. Rep. 173, 174. We held in Barnard that “we review conclusions of law to determine whether the district court’s interpretation of the law was correct.” Barnard, 870 P.2d at 93 (citing In re Marriage of Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 619).

There is no statutory or case law which requires an appeal bond to perfect an appeal in a criminal matter from city court to district court. Therefore, the District Court’s imposition of an appeal bond was an incorrect application of the law.

A defendant may appeal from justice, municipal, or city courts pursuant to § 46-17-311, MCA. This statute states:

(1) Except for cases in which legal issues are preserved for appeal pursuant to 46-12-204, all cases on appeal from a justices or city court must be tried anew in the district court and may be tried before a jury of six selected in the same manner as for other criminal cases. An appeal from a municipal court to the district court is governed by 3-6-110.
(2) The defendant may appeal to the district court by filing written notice of intention to appeal within ten days after a judgment is rendered following trial. ...
(3) Within 30 days of filing the notice of appeal, the court shall transfer the entire record of the court of limited jurisdiction to the district court.

“This Court has consistently held that strict compliance with [this statute] ... is necessary to perfect an appeal.” State v. Spieth (1990), 244 Mont. 392, 394, 797 P.2d 221, 222 (citing State v. Arthur (1988), 234 Mont. 75, 76-77, 761 P.2d 806, 807). Also, “the right to appeal a criminal conviction from justice or city court is purely statutory.” Spieth, 797 P.2d at 222 (citing State v. Hartford (1987), 228 Mont. 254, 256, 741 P.2d 1337, 1338). To perfect an appeal, a defendant must file written notice of intention to appeal within ten days after a judgment is rendered following trial. Within 30 days of filing the notice of appeal, the court shall transfer the entire record of the court of limited jurisdiction to the district court. Section 46-17-311(2) and (3), MCA. This statute does not require that an appeal bond (whether denominated an “appeal” bond or an “appearance” bond) be posted to perfect an appeal from a city court judgment to a district court. We have previously held that in the absence of such a requirement, the district court cannot impose one. Abbitt, 714 P.2d at 142; City of Missoula v. Shea (1983), 202 Mont. 286, 298, 661 P.2d 410, 416.

In this case, Ward appealed to the District Court within ten days after the judgment was rendered by the City Court and also requested that the City Court transfer her entire record to the District Court within 30 days of the City Court judgment. She properly perfected her appeal to the District Court.

The State argues that the District Court properly set bail pending Ward’s appeal. The State argues that bail is the alternative to incarceration and is to be set in all criminal cases, except certain death penalty cases, pending conviction, for the purposes of insuring the presence of the defendant in the pending criminal proceeding. However, even the State agrees that the District Court improperly dismissed Ward’s appeal.

Here, the District Court did not order Ward to post bail. If bail was ordered and payment was not made, a warrant could then issue for her arrest. In this case, no warrant was issued for Ward’s arrest; Ward’s appeal to the District Court was dismissed.

We conclude that the District Court erred when it required Ward to post an appearance bond and then dismissed her appeal based on her failure to do so.

The judgment of the District Court is reversed and this case is remanded for further proceedings consistent with this opinion.

JUSTICES HARRISON, GRAY, NELSON and WEBER concur.


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. VALENTINE ANTONE WALTER, Defendant and Appellant.
    No. 94-178.
    Submitted on Briefs July 12, 1994.
    Rehearing Denied Oct. 13, 1994.
    Decided September 20, 1994.
    51 St.Rep. 903.
    266 Mont. 429.
    880 P.2d 1346.
    For Appellant: Margaret L. Borg and Marcia M. Jacobson, Public Defender’s Office, Missoula.

      For Respondent: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; Robert L. Deschamps, III, Missoula County Attorney, Betty Wing, Deputy Missoula County Attorney, Missoula.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from a Fourth Judicial District Court, Missoula County, bench trial, finding the defendant, Valentine Walter, guilty of misdemeanor cruelty to animals. ¡We affirm.

There are three issues on appeal:

I. Was the shooting of the dog justifiable under § 81-7-401, MCA?

II. What case law provides proper precedent for the instant case?

III. Is there a basis for invalidating the complaint filed against Walter? 1

FACTUAL BACKGROUND

The following facts are gleaned from testimony presented at trial. On March 7, 1993, Stacey Ellis, accompanied by her two small dogs, a black, miniature pomeranian, Skeeter, and a miniature dachshund, Miley, drove to her mother’s house for a visit. She let the dogs out her mother’s patio door and then proceeded to lie down with her niece for a nap. Some minutes later, she heard a gunshot.

She went outside to ascertain what had occurred and heard her mother calling for her dogs. Stacey saw the appellant, Valentine Walter, (Walter) and asked him whether he had seen her little black dog, Skeeter, and he reported to her that he had killed the dog and she could find its body by the fence. She walked onto the defendant’s property and found her dog’s body on a woodpile near the fence. She took her dog back to her parents’ house and called the Missoula County Sheriff’s Office.

At trial, Walter testified that at about 2:30 or 3:00 on March 7, 1993, he returned to his home and found a small, black dog near his sheep pen chasing a small lamb. He stated that the lamb was not in the actual sheep pen but was still on his property. When he saw the black dog chasing the small lamb, he went into the house and retrieved his 20-gauge shotgun. He returned outside, saw that the dog was still near the sheep barn, then saw it start running toward the fence and shot the dog as it ran along the fence. He further stated that he was fearful that the dog would harm the lamb, which was somewhat frail because its mother had died.

Joe McNeal, a deputy sheriff for Missoula County, testified that when he was summoned to the Ellis home about the incident, he inspected the area around Walter’s home. He stated that there was still a fair amount of snow on the ground and he could see tracks heading along the fenceline to an area where there was a camper. He stated that the tracks went up to that point but he could not locate any tracks going beyond that area. McNeal further testified that the camper was approximately 100 to 120 feet from the sheep pen. He could not find any footprints in the area of the sheep pen but the defendant told him that the dogs had been in that area.

PROCEDURAL BACKGROUND

Walter was charged by complaint with misdemeanor cruelty to animals on March 31, 1993, for the shooting of the small, black dog. An amended complaint charged the defendant with a second count of misdemeanor cruelty to animals in the shooting of a black labrador retriever. In a proceeding before the Justice Court of Missoula County, Walter was found guilty of count I — cruelty to animals in the shooting of Skeeter and not guilty of count II — cruelty to animals in the shooting of the labrador retriever. Walter appealed on September 13,1993, to the District Court of the Fourth Judicial District. The District Court found Walter guilty in a trial de novo on January 10, 1994, after a bench trial on November 16,1993. Walter appealed the District Court’s February 7, 1994 judgment on March 3, 1994.

I. JUSTIFIABLE SHOOTING OF DOG

The State prosecuted Walter under § 45-8-211, MCA, which provides:

Cruelty to animals — exception. (1) A person commits the offense of cruelty to animals if without justification he knowingly or negligently subjects an animal to mistreatment or neglect by:
(a)... killing an animal.

Walter admits that he shot the dog but contends that his actions were justified because the animal was harassing his sheep. He argues that the killing of the dog was justified under § 81-7-401, MCA, because ‘Walter’s sheep had been the victims of numerous attacks by neighborhood dogs” and he was acting under the “reasonable appearance of things;” that if he allowed the dog to leave his premises, it would return another day to harm his sheep. The State argues that Skeeter was not engaged in any of the conduct described in § 81-7-401, MCA.

Section 81-7-401, MCA (1991), provides as follows:

Killing of dogs destroying or injuring stock — notice to owner. Any dog, whether licensed or not, which, while off the premises owned or under control of its owner, shall kill, wound, or injure any livestock not belonging to the master of such dog shall be deemed to be a public nuisance and may be killed forthwith by any person, or the owner, when notified, shall kill such dog within 24 hours, and if he fails to do so, an officer may be notified and shall kill or cause to be killed such dog. Nothing contained herein shall apply to any dog acting under the direction of its master or the agents or employees of such master.

Walter argued that he was justified in killing the dog under § 81-7-401, MCA. Although the correct statute to be applied is cited above (§ 81-7-401, MCA (1991)), Walter, the State and the District Court applied the wrong version of the statute. The statute applied in the lower court was § 81-7-401, MCA (1993). However, § 81-7-401, MCA (1993), did not go into effect until October of 1993, and the incident at issue occurred on March 7, 1993. Therefore, the statute which should have been applied was the 1991 version of § 81-7-401, MCA, cited above.

The 1993 version of § 81-7-401, MCA, states in pertinent part that “[a] dog... that... harasses, kills, wounds, or injures livestock ... may be killed immediately by the owner of the livestock ...” Section 81-7-401(2), MCA, (1993). “ ‘[HJarasses’ means worries, chases, or rims after livestock ....” Section 81-7-401(1), MCA, (1993). The 1991 version of the statute provides for the killing of a dog only if it ukill[s], wound[s], or injure[s] any livestock;” the harassment of sheep is not listed as conduct justifying the killing of a dog. Section 81-7-401, MCA (1991).

Walter testified that when he drove into his driveway on March 7, 1993, he saw the small, black dog chasing one of his lambs back by the sheep pen and so he went into his house, returned outside with a 20-gauge shotgun and shot the dog as it ran along the fence. Under the 1993 version of the statute, if proven at trial, the dog would have been “harassing” the small lamb and the defendant could have been justified in shooting the dog. However, the applicable statute, the 1991 version of § 81-7-401, MCA, does not include “harassment” in the list of conduct for which a livestock owner is justified in shooting a dog.

At any rate, there is testimony from a State witness, a disinterested deputy sheriff, stating that the dog was not even in an area where he could have harassed, injured, wounded, or killed any sheep. The District Court found this State’s witness’ testimony to be more credible than that of the appellant. “The weight of the evidence and the credibility of the witnesses are exclusively within the province of the trier of fact; when the evidence conflicts, the trier of fact determines which shall prevail.” State v. Bower (1992), 254 Mont. 1, 8, 833 P.2d 1106, 1111.

There was sufficient evidence for the District Court to determine that the dog was not in the process of killing, wounding or injuring livestock at the time he was shot, which is the conduct which must be proven to justify the shooting of the dog under § 81-7-401, MCA (1991). Officer McLean testified that the area where he found footprints of the two dogs was about 100-120 feet from the sheep pen. He further testified that he did not see any tracks beyond that point but he would have been able to see them if there were any to be found. Finally, he stated that he did not see any footprints in the area of the sheep pen. Walter, himself, provided no evidence that the dog had injured, wounded, or killed a lamb or sheep.

Under either application of the statute, § 81-7-401, MCA, (1993), or § 81-7-401, MCA (1991), there is sufficient evidence that the dog was not harassing, injuring, wounding or killing livestock. We conclude that the District Court did not err in its judgment even though it applied the wrong version of § 81-7-401, MCA. ‘We will affirm a correct result regardless of the reasoning used by the lower court.” Higham v. City of Red Lodge (1991), 247 Mont. 400, 402, 807 P.2d 195, 196. (Citation omitted.) We hold that the District Court did not err in determining that Walter was guilty of misdemeanor cruelty to animals because he was not justified in shooting the dog who had entered onto his property.

II. APPLICABLE CASE LAW

Walter argues that Granier v. Chagnon (1949), 122 Mont. 327, 203 P.2d 982, provides guidance for this Court in deciding the instant case. He asserts that Granier is a case involving the harassment of sheep and it was decided under an earlier version of the statute at issue here. He further contends that the other two Montana cases involving dogs discuss altercations between dogs and chickens and that “dog in the coop” cases are decided under common law but in the instant case, statutory law, not common law, is applicable.

The State counters that Walter “proposes a rule that would allow an owner of livestock to shoot any dog seen on property where sheep are kept, whether the dog “harasses, kills, wounds, or injures livestock.’ ” It argues that this is beyond the justification provided in the statute and is a departure from Granier, the only “dog in the flock” case in Montana.

The three cases cited by both parties are Trenka v. Moos (1946), 118 Mont. 607, 168 P.2d 837; Granier; and Grabenstein v. Sunsted (1989), 237 Mont. 254, 772 P.2d 865. Trenka and Grabenstein involved the shooting of dogs that were killing chickens while Granier involved the shooting of a dog which was caught feeding on a freshly killed sheep. The “dog in the coop” cases are decided under the rule of common law that:

... to justify the killing of a dog in defense of property there must be an apparent necessity for the defense, honestly believed to be real, and the acts of defense must in themselves be reasonable, or in other words, it is necessary to show that the danger from its attack was imminent at the time, and that the injury could not otherwise have been prevented.

Grabenstein, 772 P.2d at 866. “Dog in the flock” cases, however, are decided under statutory law. Granier, 203 P.2d at 988. Sheep were considered to be ‘livestock” and therefore, covered by the provisions of 3417.15, R.C.M. 1935 (now retitled § 81-7-401, MCA.) Granier, 203 P.2d at 988. In the instant case, Walter’s sheep are considered to be livestock and are covered by § 81-7-401, MCA. Granier interprets this very same statute and is therefore, proper precedent for the instant case.

In Granier, William and Paul Chagnon discovered Jerry V. Waldwinkel, a German short-haired pointer and his companion, a yellow spotted fox terrier, on a freshly killed sheep in their pasture. They had been alerted to trouble in the pasture when a number of their sheep came rushing to the barnyard area, including one severely injured sheep. The Chagnons had been previously plagued by raids on their sheep at the paws of unidentified marauders that had killed 16 to 18 head of sheep.

The Granier Court concluded that:

[P]laintiff’s dog was caught red-footed and red-fanged, in Leon Chagnon’s sheep pasture, tearing and chewing on one of Chagnon’s ewes still bleeding and warm, and that another of Chagnon’s sheep, — her belly ripped — her face practically torn off, — had just escaped a like fate by running to the bam with the remainder of the flock. Loss of some sixteen or eighteen sheep to unidentified raiders had most recently been suffered, and defendant was authorized to act forthwith on what he witnessed in the Chagnon sheep pasture on the afternoon of June 8, 1947. The law accords him “the right to act on the reasonable appearance of things.”

Granier, 203 P.2d at 988. This case is easily distinguishable from Granier. In the instant case, there was testimony from a disinterested witness that the dog’s footprints were found 100 to 120 feet from the sheep pen so it could not have even chased a lamb in the area of the sheep pen. Further, no testimony was presented to establish that the dog had injured, wounded or killed any lambs or sheep. Even though Walter had recently lost a number of sheep, there was no evidence presented which would warrant a justifiable shooting of the dog under § 81-7-401, MCA (1991). Under Granier, Walter could not establish that “the reasonable appearance of things” justified his actions. Under the statute and principles enunciated in Granier, Walter was not justified in shooting Skeeter and the District Court correctly found Walter guilty of misdemeanor cruelty to animals in a trial de novo.

III. INVALIDATION OF COMPLAINT

Walter argued that Stacey Ellis’ own actions set into motion the events which ultimately led to the shooting of Skeeter. He contends that Ellis came before the court without clean hands and for this reason, the case should have been dismissed based on the principle of fundamental fairness. The State counters that Ellis was not the party who signed the complaint; the complaint was filed and signed by a Missoula Deputy County Attorney. Moreover, the State asserts, this argument is being made for the first time on appeal, and therefore, should not be considered.

We agree with the State. The validity of the complaint was not challenged at the District Court. This Court will not address an issue raised for the first time on appeal. See § 46-20-701(2), MCA. Moreover, none of the exceptions to this rule, listed in subsections (a) through (c) of § 46-20-701(2), MCA, apply.

AFFIRMED.

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


author: JUSTICE WEBER

text:
    CHARLES CHAD CHAMBERS, a minor, through his Guardian Ad Litem, Linda C. Chambers, Plaintiff and Appellant, v. MATTHEW ROBERT PIERSON, Defendant and Respondent.
    No. 94-055.
    Submitted on Briefs June 24, 1994.
    Decided September 20, 1994.
    51 St.Rep. 921.
    266 Mont. 436.
    880 P.2d 1350.

      For Appellant: Peter M. Kirwan, Kirwan & Barrett, Bozeman.
    For Respondent: Gene I. Brown & Steve Reida, Landoe, Brown, Planalp & Braaksma, Bozeman.
   JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiff Charles Chad Chambers appeals the judgment entered for the defendant in the District Court of the Sixth Judicial District, Park County, pursuant to a jury verdict finding the defendant was not negligent when the truck driven by him struck the plaintiff as he rode his bicycle in the crosswalk in front of defendant’s truck. We reverse in part and remand for a new trial.

The issues are restated as follows;

I. Did the District Court err in refusing to give plaintiff’s proposed Instruction No. 26 concerning defendant’s standard of care?

II. Did defense counsel’s arguments constitute prejudice and preclude a fair trial?

III. Did the District Court err in refusing to instruct the jury that a child is not held to the same standard of care as an adult?

IV. Did the District Court err by instructing the jury on the legislative recommendation encouraging equipping every bicycle with a flag?

V. Did the combination of errors presented in Issues I through TV constitute reversible error?

VI. Was defendant negligent as a matter of law?

Our decision on Issue I is dispositive of the first five issues in this case. Although Issues II., III., IV. and V. need not be reviewed, Issues III. and IV. are addressed for the benefit of the trial court in a subsequent jury trial. We decline to address Issues II. and V.

On May 22, 1989, 9-year-old Charles Chad Chambers (Chad) was riding his bicycle home from Winans School in Livingston where he attended third grade. The defendant, 15-year-old Matthew Robert Pierson (Matt), was driving a truck after school. Matt had been a licensed driver for 12 days. Fourteen-year-old Wolfgang Schwarz (Wolfgang), a classmate of Matt, was a passenger in Matt’s truck.

Matt approached the intersection of 5th and Callender streets driving easterly on Callender Street. Chad approached the same intersection riding his bike on the sidewalk on the west side of 5th Street, heading north. The intersection of 5th and Callender streets is controlled by stop signs on both sides of Callender Street.

Chad testified that he slowed down on his bike prior to entering the crosswalk in front of Matt’s truck, and when he saw that the truck was stopped at the intersection behind the white crosswalk lines, he increased his speed and proceeded into the crosswalk to cross Callender Street. Matt testified that he stopped at the stop sign and allowed two cars to go by on 5th Street. Both Matt and Wolfgang testified that they did not see Chad approaching the intersection until he was already in the crosswalk approximately in line with the right front end of the truck. At the time Matt saw the bicyclist in the crosswalk, he had already started driving the truck forward, intending to cross the intersection. Before Matt was able to stop the truck again, he hit Chad with the left front end of his truck. Matt admitted that there was nothing obstructing his view of the sidewalk area from which Chad approached the crosswalk.

Chad testified that he tried to swerve to his right to avoid being hit by the truck. However, he and the bike were knocked down by the impact. Both Matt and Wolfgang got out of the truck to see whether Chad was injured. Although Chad had scraped his arms and elbows, he did not appear to be otherwise injured and again mounted his bike and rode home. After alerting his mother about the accident, Chad was taken to Dr. Priest at the Park Clinic. Dr. Priest treated the visible injuries on Chad’s arms.

Although Chad stated that he was alright at the scene of the accident, his mother testified that he was crying when he called her after arriving home. Chad testified that, in addition to skinning and bruising both of his arms, his head was injured either by the truck on impact or by hitting the pavement when he was knocked down by the truck. Several days after the accident, Chad saw Dr. Priest for the head injury because he was sleeping a great deal more than normal, had fallen asleep in school and was experiencing severe headaches.

Prior to the accident, Chad had been diagnosed as having Attention Deficit Disorder (ADD), also known as hyperactivity, and he suffered from migraine headaches. There is no dispute among the experts who testified at trial that Chad suffered a concussion as a result of the accident with the truck and that he subsequently suffered post-concussion syndrome. The parties did dispute the question whether Chad suffers from permanent brain damage from a closed-head injury. The symptoms Chad experienced in the several months after the accident included increased sleeping and exacerbated migraine headaches. Chad was also diagnosed with dyslexia in a subsequent examination by a neuropsychologist in connection with this case.

Issue I.

Did the District Court err in refusing to give plaintiff’s Proposed Instruction No. 26 concerning defendant’s standard of care?

The District Court refused to give the following instruction proposed by plaintiff to the jury:

INSTRUCTION NO. 26: Montana law provides that drivers of motor vehicles approaching an intersection have a duty to see what is in plain view and what should be seen in the exercise of reasonable care. A driver must look not only straight ahead but laterally ahead. A person is presumed to see, and therefore know, that which he could see by keeping a lookout. The failure of a motorist approaching a controlled intersection to see what was plainly visible or obviously apparent makes him chargeable for failure to see what he should have seen had he been in the exercise of reasonable care.

Plaintiff relies on Vender v. Stone (1990), 245 Mont. 428, 434-45, 802 P.2d 606, 610, and Payne v. Sorenson (1979), 183 Mont. 323, 326, 599 P.2d 362, 365, as a source of the instruction. The District Court agreed that Proposed Instruction No. 26 was an accurate statement of the law in Montana, but nonetheless refused to give the instruction because it was not an instruction in Vender, it was not applicable in this case, there was no question of whether the defendant “bolted out into the intersection without stopping” and because it seemed peremptory. We disagree.

Plaintiff contends that the court’s refusal to give Proposed Instruction No. 26 is reversible error because it reflects a “critically important” part of plaintiff’s theory of the case. According to counsel for plaintiff, the most important parts of Chad’s case were the theories that the defendant had a duty to see Chad when he was in plain view on the sidewalk before entering the crosswalk and that the defendant was presumed to see that which could have been seen by keeping a lookout not only straight ahead, but also laterally ahead, including the sidewalk area next to the crosswalk as he drove through the crosswalk. We agree that the instruction embodies an important part of plaintiff’s theory of the case.

Defendant argued the factual issue that Chad was not in plain view and, therefore, the plain view presumption has no application to the facts of this case because Chad could not physically be seen on the sidewalk approaching the crosswalk. He also argued that after he had stopped for the stop sign and let cars pass on 5th Street, his duty was to look straight ahead and not laterally ahead down the sidewalk. Defendant contends that there was no evidence that Chad was in plain view and the only evidence introduced was that Chad was somewhere on a sidewalk traveling on 5th Street on his bicycle towards Callender Street. Neither party in this case has cited Okland v. Wolf (1993), 258 Mont. 35, 40-41, 850 P.2d 302, 306, a recent case of this Court in which we cited Payne with approval as follows:

Under Montana law, a motorist has a duty to look not only straight ahead but laterally ahead as well and to see that which is in plain sight. Furthermore, a motorist is presumed to see that which he could see by looking, and he will not be permitted to escape the penalty of his negligence by saying that he did not see that which was in plain view .... If a motorist does not keep a proper lookout, a jury may find him negligent. (Citations omitted.)

In Okland, the 8-year-old plaintiff lost control of his bicycle and swerved into the street from an alley and collided with a vehicle driven by a 15-year-old boy who had been a licensed driver for approximately one month. Although Okland involved facts from which the jury apportioned negligence equally between the plaintiff and defendant, this Court in part affirmed the jury’s finding based on the law as quoted above from Payne and as subsequently restated in Vender.

The record in this case clearly indicates that there was a factual issue as to whether Chad was in plain view. The jury had to determine this key issue of fact and apply the appropriate law to the facts. The jury instructions as given by the court do not cover plaintiff’s theory that Chad was in plain view and that Matt had the duty and is presumed to have seen what was plainly visible. It is well established in Montana that a trial court commits reversible error by refusing to instruct the jury on an important part of a party’s theory in the case. See, e.g., Smith v. Rorvik (1988), 231 Mont. 85, 93, 751 P.2d 1053, 1058.

While other instructions properly addressed the elements necessary to establish negligence, none of the instructions addressed the plain view presumption, an essential part of plaintiff’s case on which the plaintiff was entitled to have an instruction submitted to the jury. We conclude, therefore, that it was reversible error in this case to refuse to give plaintiff’s Proposed Instruction No. 26 because it instructed the jury on the applicable law for plaintiff’s theory of the case.

We hold the District Court erred in refusing to give plaintiff’s Proposed Instruction No. 26 concerning defendant’s standard of care.

Issue Ij.

Did defense counsel’s arguments constitute prejudice and preclude a fair trial?

Plaintiff contends that the failure to give plaintiff’s Proposed Instruction No. 26 permitted defense counsel to make highly prejudicial arguments during closing. Our ruling pursuant to Issue I. above reverses the District Court on this proposed jury instruction and makes it unnecessary to address this issue. We therefore decline to further discuss the closing argument.

Issue III.

Did the District Court err in refusing to instruct the jury that a child is not held to the same standard of care as an adult?

We address this issue for the benefit of the District Court in a subsequent trial in this case. Plaintiff maintains that the following instruction was proposed to distinguish between the duty of care for the defendant, which is the same as for an adult licensed driver, and the duty of care for Chad:

INSTRUCTION NO. 32
A child is not held to the same standard of care as an adult.
A child is negligent if he fails to use that degree of care which is ordinarily exercised by children of the same age, intelligence, knowledge and experience under the circumstances then existing.

The District Court refused to give the first sentence of the above-quoted instruction because no adults were involved and the instruction could confuse the jury because none of the parties were adults. 1

Plaintiff contends this was error because defendant is considered an adult in the eyes of the law and Matt is held to the same standard of care as an adult. Defendant counters that the court’s refusal was not error because the instructions given, taken together, correctly instruct the jury on the proper standard of care for each party.

The second paragraph of plaintiff’s Proposed Instruction No. 32 was given by the District Court and correctly sets forth the standard of care applicable to Chad. In addition, the court gave the following:

INSTRUCTION NO. 13
Montana law provides that a fifteen year old with a valid Montana Driver’s license is held to the same standard of care while driving an automobile as an adult in the same circumstances.

Instruction No. 13 correctly instructed the jury on the standard of care for Matt in this case and is more specific and less confusing than the sentence plaintiff argues should have been used.

It is within the discretion of the District Court to decide how to instruct the jury, taking into account theories of the parties, and we will not overturn the court’s decision unless the District Court abused its discretion. Hislop v. Cady (1993), 261 Mont. 243, 247, 862 P.2d 388, 390. It is not reversible error to refuse to give an offered instruction unless such refusal affects the substantial rights of a party and thereby prejudices him. If jury instructions when taken as a whole properly state the applicable law, there is no abuse of discretion on the part of the District Court. Moralli v. Lake County (1992), 255 Mont. 23, 31, 839 P.2d 1287, 1292. We conclude that the jury was properly instructed as to the standards of care to be applied to each party in this case. We further conclude that plaintiff was not prejudiced by the refusal of the first sentence of plaintiff’s Proposed Instruction No. 32. Plaintiff’s counsel was able to counter any possible prejudice by the following quote from his closing argument:

We have learned from the instructions that a 15 year old with a drivers license is the same as you, the same as me, same as the judge, and must comply with the rules, the standard of care, the requirements of that driving license, and we have seen what those are ....
The Defendant, ... when he approached that stop sign and stopped, he was obligated to look, he was obligated to see, and he should have, in the exercise of ordinary care, seen Chad Chambers. But there’s more to this than that, because, unlike a 15-year-old-licensed-driver who has the same burden and responsibility that we do, Chad Chambers, under the law, is in a different category. He’s a child, and the law protects children. It protects mine, it protects yours, because the law does not expect those children, that nine year old, to have the same perceptions and understanding and experiences that adults do. So the standard of care and the requirements of perception that a child has are less. Why is this important? Well, because you’ve heard defense counsel raise the argument, ‘Well, it’s a flash of light; vie saw Chad Chambers flashing across; it was his fault, not the Defendant’s.”
And ultimately you’re going to be called upon to compare — first of all to determine whether Chad Chambers was negligent and then compare his negligence, if you find that it exists, to that of the defendant. The bottom line is that — let me put it in terms of a real simple example. One of the instructions that was read to you says that if the Plaintiff, Chad Chambers, is negligent, his damages are reduced by the percentage of that negligence. Let’s put it in terms of a hundred dollars. Under the law, if you decide that after you have considered the evidence that Chad is entitled to a hundred dollars in damages, and you find that he’s five percent negligent then you take five bucks away from him. If you find he’s fifty percent negligent, fifty dollars disappears, and if you find him more than fifty percent, he’s denied his recovery entirely. So it’s important to reflect on this different standard of care between a child Chad Chambers’ age and an adult in the position of a licensed driver.

We hold the District Court did not abuse its discretion by refusing to instruct the jury that a child is not held to the same standard of care as an adult.

Issue IV.

Did the District Court err by instructing the jury on the legislative recommendation encouraging equipping every bicycle with a flag?

As in Issue III. above, this issue is (addressed for the benefit of the District Court on remand in a subsequent trial.

The District Court gave the following instruction offered by defendant over the objection of counsel for plaintiff:

Every bicycle is encouraged to be equipped with a flag clearly visible from the rear and suspended not less than six feet above the roadway when the bicycle is standing upright. The flag shall be florescent [sic] orange in color. ;

The source for this instruction is § 61-8-607, MCA. Plaintiff’s counsel objected to this instruction on the basis that it creates no duty whatsoever, is merely a statement of the legislature’s preference and, as such, is confusing and prejudicial. Moreover, according to plaintiff, this is merely a legislative desire and recommendation and does not have the force of law. Defendant’s counsel argued that since the legislature has enacted the statute to encourage flags as safety devices, he was entitled to argue that preference.

The following dialogue occurred:

[By Mr. Earwan] Well, your Honor, I would just like to point out a difference in these statutes. We have in 61-8-607 mandatory type requirements, and then we have this wish list desire as it relates to a flag, and I’ll guaranty [sic] if this instruction is given the argument’s going to be made that it is a violation of statute, and it’s negligent per se, etc., etc., etc., and it is going to create prejudicial and reversible error.
[By Mr. Brown] I guaranty [sic] that won’t happen. We won’t touch that with a ten foot pole. We won’t mention it.
[By Mr. KIrwan] I tell you what, you don’t have to say it because the photographs are going to be there, and the photographs show that there is no flag on that bicycle, and I know the argument of counsel, he wouldn’t have to say a word, but it’s going to be there.

The District Court did not believe the statute could be ignored even if it was just a recommendation and gave the instruction as offered by defendant’s counsel. Plaintiff contends this was prejudicial because the jury should not be expected to distinguish the “recommendations” of the legislature from the requirements of the law.

Jury instructions, taken as a whole, must state the relevant law favoring both sides. Moralli, 839 P.2d at 1292. Section 25-7-301(5), MCA, requires the court to instruct the jury in “all matters of law which the court thinks necessary for the jury’s information in rendering a verdict.” We review a District Court’s interpretations of the law to determine whether they are correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. The instruction pertaining to the bicycle flag is not a matter of law for which the courts must provide proper instructions to the jury; rather, it is a legislative desire. It has no force of law and creates no legal duty.

We hold the District Court erred by instructing the jury that the legislature encourages that every bicycle be equipped with a flag.

Issue V.

Did the combination of errors presented in Issues I through IV constitute reversible error?

Plaintiff contends that the combination of errors in giving jury instructions as argued in Issues I. through IV. constitute reversible error, even though they may be harmless individually. Pursuant to our holding in Issue I. above, we decline to address this issue.

Issue VI.

Was defendant negligent as a matter of law?

Plaintiff’s final argument contends that the District Court erred by not finding defendant negligent as a matter of law based on the defendant’s duty to look up the sidewalk and see what was in plain view within a reasonable time before proceeding across the intersection. Defendant counters that there were numerous factual issues in this case which precluded the court from finding negligence as a matter of law.

We agree with defendant. The critical factual issue here is whether Chad, on his bicycle, was in plain view of Matt. The District Court could not declare Matt was negligent as a matter of law because the jury was chargeable with determining the key issue on which a finding of negligence depended. A determination of negligence by the trial court is appropriate only where the court is able to see from the undisputed facts that the injury was proximately caused by defendant’s actions. Where conflicting evidence is presented at trial, as in the present case, issues of negligence and proximate causation must be decided by the jury under appropriate instructions. Payne, 599 P.2d at 365.

We hold the District Court correctly refused to direct a finding of negligence as a matter of law.

Affirmed in part, reversed in part and remanded for a new trial.

JUSTICES HARRISON, GRAY, NELSON and HUNT concur.