author: MR. JUSTICE SHEEHY MR. JUSTICE MORRISON,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMES M. BRODNIAK, Defendant and Appellant.
    No. 85-104.
    Submitted Feb. 6, 1986.
    Decided April 30, 1986.
    Rehearing Denied June 3, 1986.
    718 P.2d 322.

      Ferguson & Mitchell, Carol A. Mitchell argued, Missoula, C. William Boggs argued, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Helena, Dorothy McCarter argued, Asst. Atty. Gen., Robert L. Deschamps, III, Co. Atty., Missoula, Karen Townsend argued, Deputy Co. Atty., for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Appellant, James Brodniak, appeals from a judgment of conviction of sexual intercourse without consent after a jury verdict in the District Court, Fourth Judicial District, County of Missoula.

The facts of this case are as follows: on the evening of May 10, 1984, Debbie Preston, a 22-year-old woman, accompanied a friend, Diane Green, to a bowling league banquet at the Press Box in Missoula. While at the Press Box, Preston consumed six drinks. At approximately 9:30 p.m., the two women left the Press Box and went to the Trails West Tavern in Missoula.

Upon entering the Trails West, Preston observed Brodniak whom she had met once before. The two women then joined a third woman, Diane Gettes. Eventually, Brodniak came over and sat with the three women. While at the Trails West, Preston consumed four more drinks.

At approximately 1:30 a.m., Green announced she had to go home. Preston testified that she was not ready to go home yet so rather than leaving with Green, she accompanied Green to her car to retrieve her belongings and then returned to the bar with the intention of asking Gettes for a ride home. Preston, further, testified that when she returned from retrieving her belongings from Green’s car, she asked Brodniak for a ride home because she could not find Gettes in the bar. Gettes, however, testified that Preston had made plans to leave with Brodniak before Green ever left the bar and that when Green asked Preston if she wanted a ride home, Preston said, “No, I’m going with him. We are going to get a case and talk.” Gettes also testified that she had not left the bar while Preston was retrieving her belongings, but had briefly gone to the restroom.

At approximately 1:45 a.m., Preston left the Trails West with Brodniak. From the Trails West, the two drove to a nearby Mini Mart to buy a six pack of beer, as Preston had agreed to “have a drink of beer and go talk.” They then drove to a dormitory parking lot at the University of Montana. Both Preston and Brodniak agreed that while at the parking lot they drank some beer and talked. Brodniak, however, further testified that he and Preston “started making out” while at the parking lot.

From this point the testimony of Preston and Brodniak conflicts. Preston testified as follows: after drinking some beer and talking for a while at the university parking lot, she asked Brodniak to take her home because she was tired. Brodniak told her he would take her home, but instead drove to Pattee Canyon. Upon leaving the university parking lot, Brodniak turned the wrong direction to take Preston home, but it did not dawn on her. After realizing they were going to Pattee Canyon, Preston told Brodniak she didn’t want to go there because she was afraid of the area. She had heard about devil worshipers in the area. Upon arriving in Pattee Canyon, Brodniak parked by the campground, then grabbed Preston’s hair and reached across her and locked the door. Brodniak told her he wanted to make love to her and she responded “No.” He then forced her to commit oral sex, making her take off all her clothes, including her shoes and socks. He continued pulling her hair to force her to comply with his wishes. After the oral sex, Brodniak forced her between the seats and forced sexual intercourse, both vaginal and anal. Brodniak then opened her door, shoved her head out, and began choking her. Brodniak told her he was going to kill her, and also threatened her mother. He then forced her to have oral sex and intercourse with him again. Afterwards he “snapped out of things” and told her to get dressed. Brodniak then drove her to a corner near Green’s house, where she had asked to be dropped off. When she arrived at Green’s house Preston told her what happened, left the house hysterical and was walking down the street when Green caught up with her. Green eventually took Preston to her own home where Preston lived with her mother. Preston’s mother then took her to the hospital.

Brodniak’s version of the facts varies considerably. Brodniak testified that they left the university parking lot because Preston had to go to the bathroom and that she suggested that they go to “some wooded area where nobody would see her.” Brodniak testified that he then drove to Pattee Canyon, parked his car, and helped Preston out. Preston then walked down into a borrow pit, stood in the water, and urinated. Other witnesses who saw Preston that morning testified she was not wearing her shoes because they were wet. It was Preston’s contention that Brodniak never let her out of the car and that her shoes were wet because she spilled a beer on them. Brodniak maintained that they went to the campground in Pattee Canyon, parked and started necking. Brodniak further testified that they proceeded to engage in consensual sexual acts. He, however, also testified that toward the end of the sexual encounter, he became violent, pulling Preston’s hair and choking her. He testified that very soon after his outburst he took Preston home.

At the hospital, Preston was examined by Dr. Joseph Wyatt, who testified as to her physical condition. Wyatt testified that Preston was experiencing vaginal soreness; she had blood on her underclothes and around her vagina; she had a scratch on her chest; she had blood inside her vagina; and she had an inch-long, bleeding tear at the edge of her anus. Dr. Wyatt stated that Preston’s physical condition was “probably not common” as a result of consensual intercourse.

While at the hospital, Preston was interviewed by Deputy Phillip Tilman. He retrieved for evidence the clothes Preston was wearing and a large ball of hair hanging from her head. The nurse that attended Preston at the hospital testified that a “gross amount” of Preston’s hair came out when she combed her hair and that her scalp appeared to be tender while she was combing her hair.

During the police investigation, Brodniak’s car was searched, and the investigators found several of Preston’s hairs in the front seat and one of her earrings on the floor of the backseat. This evidence was examined at the State Crime Lab. Arnold Melnikoff, Bureau Chief of the Crime Lab, testified that the long hairs in the car belonged to Preston and that most of those hairs and the hair in the large ball had been pulled from her head with painful force.

Dr. Herman Walters, a psychologist, examined Preston at the State’s request to determine her psychological condition and to recommend treatment. After interviewing Preston several times, Walters concluded that Preston’s psychological condition was consistent with all the symptoms of the post traumatic stress disorder known as rape trauma syndrome.

As a result of the above events, Brodniak was charged with sexual intercourse without consent. Trial was held in the District Court and the jury returned a verdict against Brodniak, finding him guilty of the charge of sexual intercourse without consent. Subsequently, Brodniak was sentenced to 20 years in the Montana State Prison.

Brodniak raises six issues on appeal:

1. Whether the State’s “expert” testimony concerning rape trauma syndrome, and other matters, should have been excluded;

2. Whether the District Court erroneously refused certain defense instructions crucial to his theory of the case;

3. Whether the District Court committed error in the verdict form it submitted to the jury;

4. Whether all testimony pertaining to Brodniak’s confession should have been suppressed under the best evidence rule, and because of the destruction of field notes relating to it;

5. Whether the District Court’s inconsistent rulings, and refusal to rule, on major evidentiary issues, deprived defendant of a fair trial; and

6. Whether the District Court’s rulings concerning voir dire prejudiced Brodniak’s right to the effective assistance of counsel.

A. Rape Trauma Syndrome

We will first address the admissibility of expert testimony concerning rape trauma syndrome (RTS). Brodniak attacks the admission of RTS testimony on numerous grounds only one of which we find persuasive. Specifically, Brodniak contends that certain portions of Walter’s testimony was an improper comment on the credibility of the victim.

Before addressing Brodniak’s contention on its merits, we believe an overview of RTS testimony is necessary. In State v. Liddell (Mont. 1984), [211 Mont. 180,] 685 P.2d 918, 923, 41 St.Rep. 1293, 1298-99, this Court held that RTS was a proper subject for expert testimony in a sexual intercourse without consent case. Where all that is disputed is the consent element such evidence is relevant to the question of whether there was consent to engage in a sexual act which all parties agreed occurred.

It is true several courts have refused to allow expert testimony on RTS. See State v. Stafford (1985), 77 N.C.App. 19, 334 S.E.2d 799; Allewalt v. State (1985), 61 Md.App. 503, 487 A.2d 664; People v. Bledsoe (1984), 38 Cal.3d 236, 203 Cal.Rptr. 450, 681 P.2d 291; State v. Taylor (Mo. 1984), 663 S.W.2d 235; State v. McGee (Minn. 1982), 324 N.W.2d 232; State v. Saldana (Minn. 1982), 324 N.W.2d 227. The reasons for disallowance vary. One common thread running throughout all such cases, however, is the purpose for which RTS testimony was offered. In all of the above cases, the experts testified that the victim suffered from RTS and therefore concluded expressly or implicitly, in their opinion, that the victim had been raped. Such testimony obviously goes far beyond that approved in Liddell. Such RTS testimony is generally considered an improper comment on the credibility of the victim.

In Bledsoe, supra, the California Supreme Court held that expert testimony that a complaining witness suffered from RTS was not admissible to prove that the witness was raped. In People v. Roscoe (1985), 168 Cal.App.3d 1093, 215 Cal.Rptr. 45, 49, however, the same court held that although expert testimony regarding RTS is not admissible to prove that a rape occurred or to establish the defendant’s guilt, it is admissible for other purposes. See also State v. Ogle (Mo. 1984), 688 S.W.2d 138, similarly distinguishing Taylor, supra. Our decision in Liddell is consistent with Roscoe and Ogle.

In the following cases the courts held either expressly or implicitly that a qualified expert may explain RTS to the jury and express an opinion that the victim suffers from the syndrome, but may not testify otherwise as to the credibility or believability of the complaining witness. State v. Lash (1985), 237 Kan. 384, 699 P.2d 49; State v. Bressman (1984), 236 Kan. 296, 689 P.2d 901; People v. Reid (1984), 123 Misc.2d 1084, 475 N.Y.S.2d 741; State v. Middleton (1983), 294 Or. 427, 657 P.2d 1215; People v. Izzo (1979), 90 Mich.App. 727, 282 N.W.2d 10.

In Liddell, supra, this Court followed the reasoning of the Kansas Supreme Court in State v. Marks (1982), 231 Kan. 645, 647 P.2d 1292, wherein that court held that when consent is the defense in a prosecution for rape, qualified expert psychiatric testimony regarding the existence of RTS is relevant and admissible. In a later Kansas case, Bressman, supra, the RTS expert testified that in her opinion the complainant had been raped. 689 P.2d at 907. The Kansas court held that the trial court erred in admitting this testimony reasoning that:

“An expert’s opinion in a proper case is admissible up to the point where an expression of opinion would require him to pass upon the credibility of witnesses or the weight of disputed evidence.”

689 P.2d at 907. In Lash, supra, the expert was asked to give his opinion as to whether the victim in a child molestation case was telling the truth. 699 P.2d at 51. Citing its Bressman decision, the Kansas court held that such an expression of opinion was improper, since such an opinion would require the expert to pass upon the credibility of witnesses or the weight of disputed evidence.

In Reid, supra, the New York Court sustained a pretrial motion to allow expert testimony describing RTS in rebuttal to an anticipated defense that the victim recanted the charges in a letter to the defendant. 475 N.Y.S.2d at 741. Regarding the issue faced by the Kansas Supreme Court in Lash and Bressman, supra, and this Court in the instant case, the court held:

“The admission of this [RTS] expert testimony is no more inflammatory, nor more intrusive into the province of the jury than other expert testimony, assuming adequate and proper instructions are provided to the jury, and, of course, the expert will not be permitted to testify as to whether she believes the witness (citations omitted), but rather, will be permitted to explain rape trauma syndrome to the jury and express her opinion that the victim suffers from that syndrome. The jury will then consider the credibility of the victim’s testimony along with whatever evidence is submitted on the question of credibility.” (Emphasis added.)

475 N.Y.S.2d at 743.

In at least two other jurisdictions, courts have stated the same rule — that is that an expert witness may not give an opinion on whether he believes the victim’s story or whether he believes the witness is telling the truth. Middleton, 657 P.2d at 1221; Izzo, 282 N.W.2d at 11.

At the trial of this case, Walters testified in detail on the subject of RTS. Although Walters’ testimony regarding RTS, itself, was not objected to, certain other portions of his testimony were objected to as improper comment on the credibility of the victim.

The pertinent portions of Walters’ testimony are as follows:

“Q. Dr. Walters, as part of your professional life, do you keep current on the literature and current on the research dealing with the area of sexual assault and rape? A. I attempt to do so, yes.
“Q. What does that mean? What do you do to try to keep current? A. I try to keep track of what are the current books and research articles that are coming out and avail myself of various computerized services or summaries of general findings and do participate in some research in those areas.
“Q. Dr. Walters, in the literature is there an area of literature that deals with sexual assault and rape? A. Yes.
“Q. Does that particular literature contain any information regarding the frequency of false reports in sexual assault or rape cases? A. Yes.
“Q. What is that frequency? A. In general, that the number of actual false accusations is approximately the same as for other kinds of crimes, roughly two percent of the number of accusations are found to be unfounded. Where it is not possible to proceed with an investigation because of various problems, that runs, depending on the study you read, somewhere around 17 to 25 percent.
“Q. Dr. Walters, is that particular report in the literature consistent with your personal clinical experience? A. Yes.
“Q. In the course of your professional career, have you been in the practice of making diagnoses of individuals or clients that have been refereed to you? A. Yes, that is a routine part of my practice.
“Q. Is part of the routine part of the practice for you to check for what we might call a malingerer? A. Yes.
“Q. Could you explain what malingering is? A. The term refers to people who clearly distort information with the intention of creating a particular purpose that would be in some way to their advantage.
“Q. Why is it important to check in your work to see if that process is going on? A. Because it can be a significant flaw in the conclusion you reach.
“Q. The diagnosis you are seeking? A. Yes.
“Q. Do you find malingering in persons who are complaining of sexual assaults? A. Occasionally.
“Q. Again, in what frequency? A. Roughly two to three percent, depending a lot on where the work is going on, the kinds of motives people have. It is probably less in clinical practice where people are coming in just to help themselves than in a practice where they might have some fairly obvious motives about getting to move to another part of the prison or to get out or something of this kind.
“Q. You indicated that you gave Debbie some tests, what kind of tests did you administer to her? A. An individual intelligence test, the Wexler Adult Intelligence Scale Revised. I gave her a perception test, the Minnesota Multiphasic Personality Inventory.
“Q. Have you scored the individual intelligence test? A. Yes.
“Q. What are your findings as far as Debbie’s I.Q.? A. She had a verbal I.Q. of 78, a performance I.Q. of 72, full scale I.Q. of 78, which places her in the lowest 10 percent of the general population.
“Q. Could you tell us a little bit about what kind of tasks and skills an individual with an I.Q. of 78 is likely to possess? A. Yes, an individual in that score range doesn’t quite qualify for special ed in the public school system, yet they are very unlikely to be able to compete in regular grade level placement. Such an individual might be able to get through about an eighth grade education. They are very unlikely to succeed in regular school placement. They are likely to end up in an unskilled kind of work, often requiring fairly close supervision of kind of routine tasks. They are unlikely to be successful in kinds of work or kinds of activities that involve much academic learning.
“Q. In connection with that kind of assessment, what would be her ability to be able to recount experiences and remember kinds of things that happened to her?
“MR. BOGGS: Objection.
“THE COURT: Overruled.
“A. Limited.
“Q. (By Ms. Townsend) Can you explain what you mean by that? A. An individual in this I.Q. range is likely to have difficulty following complex, rapid changes in sequences of events. They might be able to remember fairly vivid details out of events that attracted their attention. Their memory would not be very dependable.
“Q. Doctor, how does the experience of something as traumatic as, say, a sexual assault, affect the individual’s ability to recount the details of the event at some later date? A. To the extent that they are intensely frightened, and frightened that there might be other kinds of circumstances that compromise judgment, the reaction is it is typically very difficult for people to give highly detailed and accurate accounts of what happens to them.
“Q. If you combine that sort of a stress and the stress of a situation with someone with the I.Q. of, say, 78, how is that going to affect an individual’s ability to recount later on, events of what went on and be precise about what happened when, et cetera? A. I would expect the accuracy of details, the sequence of details, to be relatively poor.
“Q. Why is that? A. Because they simply can’t absorb or process and retain that much information, which is to say that circumstances beyond a certain point of stress greatly interferes with memory.
“Q. Does that mean when an individual recounts something one way that they are deliberately not recounting it correctly? A. Not necessarily.
“Q. What does it mean? A. Their memory is not good.
“Q. What about the period of time — the elapsed time period in a sexual assault? A. It’s usually poor.
“Q. Why is that? A. Same reason I have just recounted.
“Q. So the stress significantly affects your ability to accurately say about how much time something took place? A. Yes.
“Q. Doctor, in your diagnosis of post traumatic stress syndrome for Debbie Preston, did you also consider the possibility that she might be malingering? A. Yes.
“Q. How did you check for that? A. In such examinations, first of all, I go over the information that the person provides on subsequent interviews. I am looking for information from other sources, such as our witness investigative report and so on to see if this information was consistent with what the individual provides. I will provide them opportunities to exaggerate in a way that would be favorable to what might be their case or their interest, and observe the extent to which they would do it. There are a variety of techniques of this sort to give you some idea about the veracity.
“Q. Did you do that in connection with Debbie Preston? A. Yes.
“Q. What were your findings? A. I did not find any instances where she behaved in a way that would suggest to me that she is malingering.”

It is well settled in Montana that the determination of the credibility of witnesses and the weight to be given their testimony is solely within the province of the jury. State v. Maxwell (1982), 197 Mont. 498, 647 P.2d 348; State v. Beachman (Mont. 1980), 616 P.2d 337, 37 St.Rep. 1558; State v. Harvey (1979), 184 Mont. 423, 603 P.2d 591; State v. Azure (1979) 181 Mont. 47, 591 P.2d 1125; State v. Lewis (1976), 169 Mont. 290, 546 P.2d 518. Clearly, Walters’ testimony with regard to malingering and the statistical percentage of false accusations was improper comment on the credibility of Preston in light of the above cited authority and should not have been admitted in this case.

This Court, however, will not reverse a judgment of conviction for harmless error, and the question as to whether a particular error is harmful or harmless depends on the facts of the case under review. State v. Straight (1959), 136 Mont. 255, 265, 347 P.2d 482, 488. In the instant case we hold that the admission of Walters’ testimony, above quoted, was harmless error. A review of the record of this case reveals that the physical evidence against Brodniak and his own admissions that he resorted to violence were so overwhelming that admission of the RTS testimony did not affect his substantial rights.

B. Jury Instructions

Brodniak next contends that the District Court improperly excluded his proposed instruction Nos. 11, 12, 14 and 10c.

Brodniak’s proposed instruction No. 14 addressed itself to the necessity that the force or lack of consent precede the acts of sexual intercourse for rape to occur. The instruction provided:

“The evidence in this case has raised the issue of the relationship in time between admitted acts of sexual intercourse, consent or lack of consent, and admitted forceful acts of defendant against the complaining witness.
“You are instructed that the force, or threat of force, necessary to show lack of consent on the part of Debbie Preston to acts of sexual intercourse with the defendant James Brodniak must precede the acts of sexual intercourse in time. If, from your consideration of all the evidence presented in this case, you find yourselves with a reasonable doubt whether any acts of force, or threat of force, on the part of James Brodniak preceded Debbie Preston’s consent to sexual acts with James Brodniak, then you must return a verdict of not guilty to the charge of sexual intercourse without consent in this case.
“If you find yourself with this reasonable doubt, you are still required and authorized to consider whether or not the defendant committed the lesser included offense of assault upon Debbie Preston, as defined in these instructions.”

The District Court refused Brodniak’s proposed instruction No. 14 because the elements of the offense were adequately covered in other instructions. It is clear that instruction Nos. 11 through 14 and 23, given to the jury, thoroughly instructed them on the elements of sexual intercourse without consent, and the effect of force on the element of consent. The jury was further instructed on the lesser offense of assault in instruction Nos. 20 through 22. The District Court may properly refuse an instruction when the elements of the offense are adequately set forth in other instructions. State v. Campbell (1972), 160 Mont. 111, 116, 500 P.2d 801, 804.

The State also contends that instruction No. 14 was properly refused because it is a misstatement of the law. The instruction requires a finding of use of force that precedes the acts. Because the victim suffered more than one act that could constitute sexual intercourse without consent, the instruction could erroneously mislead the jury to conclude that force could not begin after one act and before a second.

Brodniak also contends that his proposed instruction No. 12 was improperly denied. The instruction provided:

“You are instructed that, once a person consents to acts of sexual intercourse with another person, that consent may not, in contemplation of law, be withdrawn during the acts.
“Therefore, if you find from the evidence that Debbie Preston consented to have sex with James Brodniak, and, in the course of doing so, at some time withdrew her consent or may have withdrawn her consent, you may not find the defendant guilty of the offense of sexual intercourse without consent.”

Brodniak’s “withdrawal of consent” instruction is based on State v. Way (1979), 297 N.C. 293, 254 S.E.2d 760. Way is much more limited in scope than the offered instruction. In Way, the court held that when there is only one act of intercourse, the victim cannot withdraw consent during the act and then charge the assailant with rape. Way, 254 S.E.2d at 761. Even if Way were the law in this state, the proposed instruction would still be unusable because it instructs the jury that “once a person consents to acts of sexual intercourse . . . consent may not ... be withdrawn during the acts.” Thus, the jury could be led to believe that once the woman consents, she can never withdraw her consent. This ignores the fact that under Montana’s definition of sexual intercourse without consent, Preston was raped not once, but several times. Section 45-5-503, MCA. Brodniak’s proposed instruction No. 12 was properly denied as a misstatement of Montana law and because it does not comport with the law upon which the instruction was based.

Brodniak next contends his proposed instruction No. 10c was improperly denied. The instruction provides:

“You are instructed that the consent of Debbie Preston to the acts of James M. Brodniak is a defense to the charge of sexual intercourse without consent.
“Such consent is not a defense, however, if it was induced for force or by a threat of imminent death, bodily injury, or kidnapping, to be inflicted upon anyone.
“You are further instructed that the mere fact that Debbie Preston may have felt some uneasiness or fear in the presence of Defendant at some point, does not mean she was induced to give her consent by force or duress. Only if she was reasonable in thinking that the Defendant might use injurious force against her if she did not consent, was her consent induced by force. Whether she was reasonable in thinking this must be determined in light of all the circumstances surrounding the Defendant’s acts, as brought out in the evidence put before you here.
“You are further instructed that a person may manifest their consent to a particular course of conduct by inaction as well as by positive affirmation. Inaction or sufferance may constitute consent when, in the natural course of human affairs, reasonable people would normally regard inaction in particular circumstances to mean that a person consented to the action taking place.”

Brodniak’s instruction No. 10c attempted to set forth the law that consent is a defense to a charge of sexual intercourse without consent as provided in Section 45-2-211, MCA. Brodniak, however, never offered an instruction setting forth the statute. Rather, his instruction is a long, erroneous, and confusing interpretation of it. Further, the element of lack of consent was adequately covered in instruction No. 23 which was given. Moreover, the third paragraph of the instruction attempts to bring Preston’s state of mind into issue which has no place in the elements of the offense.

Brodniak last contends that his proposed instruction No. 11 was improperly denied. The instruction provides:

“You are instructed that resistance, or lack of resistance, on the part of Debbie Preston to the acts of James M. Brodniak may be considered by you in determining whether or not an act of sexual intercourse, if one took place, occurred ‘without consent.’
“You are further instructed that it is the law of this state that a woman placed in circumstances where she feels sexual intercourse is about to occur with her is not required to resist by all violent means within her power. The law requires only that she does not consent, and that she do all that her age, strength and the attendant circumstances make it reasonable for her to do in order to manifest her opposition. She is not required to resist beyond exhaustion of her strength or beyond the point where the force used against her would make further resistance useless or impossible.
“You are also instructed that continuous resistance is not required to show that sexual intercourse was without consent.”

Although Brodniak’s proposed instruction No. 11 is a proper statement of the law, it was redundant when viewed with instruction No. 14 given by the court and was therefore properly refused. State v. Sanderson (Mont. 1985), 692 P.2d 479, 486, 42 St.Rep. 94, 102.

The instructions given by the District Court adequately covered every issue and theory having support in evidence, sexual intercourse without consent and assault. State v. Azure (1977), 175 Mont. 189, 194, 573 P.2d 179, 182. The instructions given accurately stated the applicable law.

C. Verdict Form

Brodniak here contends that the verdict form offered by the State and utilized by the District Court, invited the jury to consider punishment in its determination of guilt or innocence in contravention of Montana law due to the inclusion of the grade of offenses, felony and misdemeanor, in the verdict form. The verdict form given to the jury stated:

“VERDICT
“To the charge of Sexual Intercourse Without Consent, a Felony, we the jury, all of our number, find the defendant JAMES M. BRODNIAK
_Guilty_Not Guilty.
“Having found the Defendant not guilty of the offense charged of Sexual Intercourse Without Consent, A Felony, to the lesser included offense of Assault, a Misdemeanor, we the jury, all of our number, find the defendant JAMES M. BRODNIAK _Guilty_Not Guilty.”

In State v. Herrera (1982), 197 Mont. 462, 467, 643 P.2d 588, 591, this Court stated:

“[3] Under section 46-18-103, MCA, all sentences shall be imposed exclusively by the judge of the court. Because of that statute, we held in State v. Zuidema (1971), 157 Mont. at 367, 373, 374, 485 P.2d 952, 955, that punishment is not the concern of the jury whose sole function is to determine guilt or innocence. Instructing the jury as to various possibilities of sentence, we said (157 Mont. at 374, 485, P.2d at 956), impermissibly suggests to a jury that it should give weight to the possible punishment in reaching a verdict. In State v. French (1975), 166 Mont. 196, 205, 531 P.2d 373, 378, we held a court was not required to instruct the jury, where mental disease or defect excluding responsibility was an issue, that a person acquitted by reason of mental disease must be committed to the state hospital. In State v. Coleman (1978), 177 Mont. 1, 33, 34, 579 P.2d 732, 751, we upheld an instruction that sentencing was vested in the court and the jury was not to consider the possible punishment defendant could receive upon a verdict of guilty. The District Court in this case avoided prejudicial error by refusing the offered instruction in this case.”

The issue before the Court then is whether the inclusion of the terms misdemeanor and felony suggested to the jury that it should give weight to the possible punishment in reaching their verdict. Clearly, inclusion of the terms in the verdict form permitted the jury to indirectly consider the punishment of Brodniak. But again, based on the facts of this case, we find that any prejudice caused by inclusion of the terms in the verdict, even though they convicted Brodniak of the felony, sexual intercourse without consent, was harmless.

Brodniak also contends that the District Court erred by not utilizing his special interrogatories to the verdict form. The special interrogatories stated:”

“VERDICT: SPECIAL INTERROGATORIES
“If, from your consideration of the evidence, you find the Defendant guilty of sexual intercourse without consent, then indicate the basis of your verdict as follows:
“[ ] 1. The Defendant, before the inception of sexual acts or intercourse, induced Debbie Preston’s consent to the same, by force or threat of force.
“[ ] 2. Although Debbie Preston was a voluntary social companion of Defendant and consented to have sex with him, at some point during acts of intercourse she withdrew her consent, and he used force or threat of force to perpetrate further acts.”

Brodniak offered the interrogatories as a means of determining for appeal whether the jury verdict was based on a theory of withdrawn consent, as opposed to force or lack of consent from the inception. Brodniak relies on two cases for his contention that the special interrogatories should have been given to the jury. People v. Horton (Colo.App.1984), 683 P.2d 358; State v. Cunningham (1979), 23 Wash.App. 826, 598 P.2d 756. These cases, however, merely hold that all theories charged should be submitted to the jury for a special verdict. In the instant case all the theories charged were reflected in the verdict form given the jury.

Brodniak’s argument that the District Court erred by not giving the special interrogatories is not persuasive. The fact of the matter is that the jury determined from the evidence that Brodniak committed the offense of sexual intercourse without consent against Preston. Whether the jury believed that the element of without consent existed at the inception of the sexual acts or whether at some point Preston withdrew her consent and then Brodniak engaged in further acts of sexual intercourse without consent is unimportant. The important point is that the jury found that at some point Brodniak committed sexual intercourse without consent. A plain reading of Section 45-5-503, MCA, indicates that Preston could have been raped as many as five or six times. All that was necessary was that the jury find she was raped once. The District Court properly denied Brodniak’s special interrogatories.

D. Best Evidence Rule

Shortly after Brodniak’s arrest, sheriff’s deputy Steven Gunderson conducted a tape-recorded interview with Brodniak’s consent. During the interview he took notes of Brodniak’s statements. The tape itself was recycled before trial because Gunderson mistakenly thought that Brodniak had given another statement to another officer. The recording, however, had been transcribed prior to its being recycled. Two days after the taped interview, Gunderson prepared a formal report using his notes and his memory. Gunderson testified he never reviewed the tape with the transcript. He, however, did review his report and testified that it accurately stated what Brodniak said during the interview. During trial Gunderson testified using his report to refresh his memory. During his examination, Gunderson also twice read from the transcript.

Brodniak contends that the statements from the transcript should not have been used at trial because of the best evidence rule. The best evidence rule is Rule 1002, M.R.Evid. and provides:

“To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided by statute, these rules, or other rules applicable in the courts of this state.”

Brodniak relies on State v. Warwick (1972), 158 Mont. 531, 494 P.2d 627, to support his contention that the District Court committed reversible error by allowing Gunderson to read from the transcript of the recording. In Warwick, this Court stated:

“There are some cases where only the transcription of the recording has been offered and though objected to on the basis that the transcription is not the best evidence, courts have admitted the transcription where a proper foundation was laid for the admission. (Citations omitted.)
“However, in State v. Baca, 82 N.M. 144, 477 P.2d 320, a police officer’s notes that had been transcribed from a tape recorded interview between the defendant and the informer were held inadmissible, due to failure to lay a proper foundation for both the recording itself and the subsequent transcription. That is precisely the factual situation here, except under our factual situation the tape is missing or destroyed. This loss or destruction of the tape or record has, in the few cases we have found from other jurisdictions, raised the best evidence rule objection, and where admission has been allowed it has only been after the prosecution has proven the authenticity of the transcription — that is, after laying the proper foundation as to the accuracy of the secondary evidence following the guidelines set forth in 58 A.L.R.2d 1024, heretofore quoted.”

Warwick, 158 Mont. at 543-44, 494 P.2d at 633. Based on Warwick, the State should have strictly adhered to the following foundation to authenticate the recording and the transcript thereof:

“(1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of preservation of the recording, (6) identification of the speakers, (7) a showing that the testimony elicited was voluntarily made without any kind of inducement.”

Warwick, 158 Mont, at 542-43, 494 P.2d at 633.

In the instant case, because the recording was destroyed and because Gunderson “did not review the transcript” or compare it with the recording, the only testimony offered to prove the authenticity and correctness of the recording was Gunderson’s testimony that he knew it was accurate based on his recollections and his formal report. A review of the transcript in this case, indicates that there was not “strict adherence” to the Warwick foundation and the District Court therefore erred by allowing Brodniak’s statement to Gunderson to be read from the transcript.

The question then becomes whether the error prejudiced Brodniak. It is the duty of this Court to ascertain whether or not errors made at trial are prejudicial, for only upon such prejudicial errors may a case be returned to the District Court for retrial. Warwick, 158 Mont. at 539, 494 P.2d at 631; State v. Totterdell (1959), 135 Mont. 56, 60, 336 P.2d 696, 698. Gunderson read two statements from the transcript of the recording. These statements, however, were consistent with Brodniak’s own testimony. Brodniak was therefore not prejudiced by the admission of the statements.

Brodniak also contends that all testimony pertaining to his statements to Gunderson should not have been admitted because the State negligently suppressed the tape and Gunderson’s notes taken during the interview. The law in Montana regarding suppression of evidence is that negligent suppression will overturn a conviction if prejudice can be shown by the suppression. State v. Craig (1976), 169 Mont. 150, 153, 545 P.2d 649, 651. Again, Brodniak makes no showing that he was prejudiced by the negligent suppression of the recording or Gunderson’s field notes.

E. Evidentiary Rulings of the District Court

Brodniak contends that the District Court’s postponement of rulings of various evidentiary motions prejudiced his case. Specifically, Brodniak first contends that the District Court made arbitrary and inconsistent rulings with regard to the admission of the transcript of the tape recording that led to confusion and deprived Brodniak of a fair trial. Brodniak further contends that the District Court deprived him of a fair trial by postponing ruling on the admission of Dr. Walter’s rape trauma testimony.

The record, however, shows the evidentiary matters on which the District Court reserved its ruling, depended on their relevance at the time of introduction and the adequacy of their foundation. The trial court judge has a wide latitude of discretion in conducting courtroom procedures, and in determining adequacy of foundation for admission of evidence. State v. Austad (1982), 197 Mont. 70, 94, 641 P.2d 1373, 1386; State v. LaMere (Mont. 1980), 621 P.2d 462, 466, 37 St.Rep. 1936, 1941. There is no indication that the District Court did anything other than exercise its discretion in order to rule correctly on all evidentiary matters. The District Court acted correctly and Brodniak suffered no prejudice.

F. District Courts Voir Dire Rulings

In the instant case, the District Court restricted the jury voir dire by prohibiting the attorneys from making references to their own personal experiences as a means of eliciting biases from prospective jurors. Brodniak contends that this ruling four days before trial, prejudiced his trial preparation. The State contends that by restricting the voir dire to exclude counsel’s comments on their personal experience, the District Court acted within its discretion.

The purpose of voir dire in a criminal proceeding is to determine the existence of bias and prejudice on the part of prospective jurors and to enable counsel to intelligently exercise their pre-emptory challenges. State v. Stuit (1978), 176 Mont. 84, 87, 576 P.2d 264, 266. Any questioning conducted to establish rapport or to educate the jury is extraneous to the legitimate objects of voir dire. State ex rel. Stephens v. District Court (1976), 170 Mont. 22, 27, 550 P.2d 385, 388. Counsel for Brodniak admitted that the purpose of counsel making references to personal experiences was to establish rapport with potential jurors. This being true, the District Court acted properly in limiting matters “extraneous to the legitimate objections of voir dire” based on Stephens, supra.

We affirm.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES GULBRANDSON, HARRISON, WEBER and HUNT concur.

MR. JUSTICE MORRISON,

dissenting:

I agree with the majority conclusion that Walters’ testimony constituted a comment on the evidence and was impermissible. I agree that such testimony constitutes harmless error.

The victim’s testimony can be summarized as follows: (1) The victim wanted a ride home but did not want to have sex with defendant. (2) The victim was not “picked up” by the defendant in the bar. (3) The victim was, for all practical purposes, a prisoner in the defendant’s car at the time it was parked in the Pattee Canyon area.

The chief witness for the State was challenged, not only by the defendant, but by Diane Gettes, the victim’s female companion at the bar. Directly contrary to the victim’s testimony, Gettes testified that the victim told her she was going home with the defendant. It was her impression that the two were leaving to have sex.

Defendant testified that near the end of the sexual encounter he became violent toward the complainant and that he pulled her hair and choked her. He testified that the sex was very aggressive and that, at one point he mistakenly penetrated the victim’s anus. The defendant’s testimony is as much corroborated by the physical facts as is that of the complaining witness.

I am unable to say that the evidence of guilt is so overwhelming that the credibility of the complaining witness did not come into play. Dr. Walters’ testimony, bolstering that of the victim, could well have influenced the jury. Under these circumstances, we should reverse and remand for a new trial.

I also feel that the trial bench and bar will be somewhat confused by the majority’s position. Apparently the rational of Liddell is approved. The majority seems to confine admissibility of rape trauma syndrome testimony to those instances where medical personnel, having observed demeanor shortly following the alleged incident, testifies that such demeanor is compatible with a significant traumatic incident such as rape. The expert will not be allowed to comment on the credibility of the complaining witness. Whether this rule will be capable of practical application remains to be seen.

I would reverse and remand for a new trial.


source: Caselaw Access Project

author: MR. JUSTICE WEBER

license: Public Domain

text:
    In the Matter of the Appeal of GERALD LEE HORTON from a Revocation of His Driver’s License, Appellant, v. STATE OF MONTANA, Respondent.
    No. 85-495.
    Submitted March 14, 1986.
    Decided April 30, 1986.
    717 P.2d 1108.
    Morin & Collins, Robert P. Morin argued, Billings, for appellant.
    Mike Greely, Atty. Gen., Helena, Barbara Claassen argued, Asst. Atty. Gen., Helena, Harold F. Hanser, Co. Atty., Billings, David W. Hoefer, Deputy Co. Atty., Billings, for respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The Department of Justice, Motor Vehicle Division (division) revoked for one year the driver’s license of Gerald Lee Horton (petitioner). On appeal, the Yellowstone County District Court affirmed the one year revocation. Petitioner now appeals to this Court contending the suspension should have been for six months. We affirm.

The issues are:

1. Does Section 61-5-208(2), MCA, require a one year license revocation when an individual incurs a blood alcohol concentration (BAC) violation within five years of a driving under the influence (DUI) violation?

2. Is Section 61-5-208(2), MCA, void for vagueness?

In August 1983, petitioner was convicted of DUI in violation of Section 61-8-401, MCA. In November 1984, petitioner was convicted of a BAC violation under Section 61-8-406, MCA. Under Section 61-5-208(2), a second offense within five years of the first offense requires the division to revoke a license for a period of one year. The division concluded that the DUI conviction was the first offense and the BAC conviction was a second offense, and therefore revoked petitioner’s license for one year.

I

Does Section 61-5-208(2), MCA, require a one year revocation when an individual incurs a BAC violation within five years of a DUI violation?

Section 61-8-401(1), lists four separate and distinct ways in which a person may be found DUI:

“61-8-401. Persons under the influence of alcohol or drugs. (1) It is unlawful and punishable as provided in 61-8-714 for any person who is under the influence of:
“(a) alcohol to drive or be in actual physical control of a vehicle upon the ways of this state open to the public;
“(b) a narcotic drug to drive or be in actual physical control of a vehicle within this state;
“(c) any other drug to a degree which renders him incapable of safely driving a vehicle to drive or be in actual physical control of a vehicle within this state; or
“(d) alcohol and any drug to a degree that renders him incapable of safely driving a vehicle to drive or be in actual physical control of a vehicle within this state.”

Section 61-8-406, describes a BAC violation as follows:

“61-8-406. Operation of vehicle by a person with alcohol concen tration of 0.10 or more. It is unlawful and punishable as provided in 61-8-722 for any person to drive or be in actual physical control of a vehicle upon the ways of this state open to the public while the alcohol concentration in his blood, breath, or urine is 0.10 or more.”

Section 61-5-208(2) refers to offenses under Sections 61-8-401(1) and -406, stating in pertinent part:

“[W]hen any person is convicted . . . for the offense of operating or being in actual physical control of a motor vehicle while under the influence of alcohol or a narcotic drug or knowingly or willingly under the influence of any other drug to a degree which renders him incapable of safely driving a motor vehicle, or a combination thereof, or for the offense of operation of a motor vehicle by a person with alcohol concentration of 0.10 or more, the division shall, upon receiving a report of such conviction . . .suspend the license or driving privilege of the person for a period of 6 months. Upon receiving a report of a conviction ... for a second, third, or subsequent offense within 5 years of the first offense, the division shall revoke the license or driving privilege of the person for a period of 1 year. (Emphasis added to underscore the 1983 amendment.)”

Prior to the 1983 amendment, the division was required to revoke a license for one year upon receiving notice of conviction of a second offense of driving under the influence of alcohol, or a narcotic drug, or any other drug, or alcohol and any other drug. While the offense of driving under the influence of alcohol is not necessarily the same as driving under the influence of a narcotic drug, or other drug, the convictions were treated the same for penalty purposes. In 1983 the statute was amended by adding BAC as a fifth ground for suspension or revocation of a license.

In State ex rel. Palmer v. Hart (1982), 201 Mont. 526, 655 P.2d 965, we pointed out that in construing legislation, the function of this Court is to state the substance of the legislation, and where the language of the statute is plain, unambiguous, and direct, the statute speaks for itself.

Petitioner argues that one BAC plus one DUI is not equal to a second offense. He maintains that it is unreasonable to construe DUI and BAC as synonymous because a DUI conviction is a distinct criminal offense from a BAC conviction. The State points out that we are here concerned with the civil penalty of license revocation and that for license revocation purposes DUI and BAC are synonymous.

We agree with the State’s contention. It is true that the criminal statutes defining DUI and BAC are different, and properly so, because the offenses are not identical. Here, however, we are not concerned with the criminal aspect of these statutes but only with the civil penalty of revocation of a driver’s license. Section 61-5-208(2) is plain, unambiguous and certain in providing that a BAC conviction following a DUI conviction, whether under the influence of alcohol, narcotic drug, other drug, or combination of alcohol and drugs, results in a license revocation for one year. We do not find any contradiction in those provisions. Operation of a motor vehicle with an alcohol concentration of 0.10 or more is clearly similar in nature to the offense of driving under the influence of alcohol. As pointed out by the District Court, the effectiveness of an enhanced sanction would be lost if petitioner’s interpretation were accepted. An offender could avoid the increased sanction merely by pleading guilty to an alternate offense. Clearly, the legislature did not intend that result.

We hold that Section 61-5-208(2), MCA, properly requires a one year license revocation when an individual is convicted of a BAC violation within five years of a DUI conviction.

II

Is Section 61-5-208(2), MCA, void for vagueness?

As previously discussed, the statute is not ambiguous and certainly is not vague. It clearly lists the type of offenses which may be the basis for a license revocation. We hold that the statute is not void for vagueness.

We affirm.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, HARRISON, HUNT, GULBRANDSON and SHEEHY concur.


author: MR. JUSTICE SHEEHY

text:
    JAMES F. FLEMING, III, Plaintiff and Appellant, v. FLEMING FARMS, INC., Fleming Land Partnership, and Wilma M. (Fleming) West, Defendants and Respondents.
    No. 85-541.
    Submitted on Briefs Feb. 20, 1986.
    Decided April 30, 1986.
    717 P.2d 1103.

      Larrivee Law Offices, Noel Larrivee, Missoula, for plaintiff and appellant.
    McGarvey, Lence & Heberling, John A. Lence, Kalispell, Yardley & Yardley, Dan Yardley, Livingston, for defendants and respondents.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Appellant, James F. Fleming, III, appeals from the judgment of the District Court, Twentieth Judicial District, County of Lake, entered following the District Court’s order granting the motion for summary judgment of Wilma M. (Fleming) West in favor of all defendants. We affirm.

Fleming raises three issues for our review:

1. Whether the District Court abused its discretion in granting summary judgment because numerous issues of material fact exist;

2. Whether there was actual or constructive fraud committed upon Fleming;

3. Whether there was extrinsic fraud committed in the probate of an estate in which Fleming was an heir.

The record of this case shows that in the early 1940’s James F. Fleming, Jr., and his wife, Wilma M. Fleming, presently Wilma M. West, began a ranch-farm operation near Pablo, Montana. Over the next 30 years the Flemings acquired approximately 800 acres of commercial farm land. During this period the Flemings had eleven children, five sons and six daughters, including appellant, James F. Fleming, III.

During 1975 James, Jr. retained Dan Yardley, an attorney, and David Green a certified public accountant to advise him with his estate planning. As part of this estate planning, it was decided to incorporate the family business, excluding the land holdings. As a result, in 1975, Fleming Farm, Inc. was formed as a Montana corporation. A total of 2,000 shares of class “A” voting stock were issued with 1,500 shares issued to James, Jr., and 500 shares to Wilma. In addition, 4,313 class “B” nonvoting shares were issued with James, Jr. receiving 3,225 shares and Wilma receiving 1,078 shares. Late in 1975 the Flemings gave to each of their five sons 68 shares of the class “A” stock and 172 shares of the class “B” stock.

As a further part of the estate planning, Fleming Land Partnership was formed and all of the commercial land was conveyed to the partnership. James, Jr. retained an 80.98% ownership interest, Wilma a 10% ownership interest and the eleven children each received a .82% ownership interest. The partnership leased its land to the family corporation.

James, Jr. died on October 12, 1975. As specified in his Will, Wilma was appointed personal representative. Wilma retained Dan Yardley to represent her in that capacity. Under the terms of James, Jr.’s Will, one-fourth of his net estate was distributed equally to the eleven children. One-half of the net estate was placed in Trust “A” with income to Wilma, with the right of request for the corpus, thus qualifying for the estate tax marital deduction available at that time. The remaining one-fourth of the estate was placed in Trust “B” with income to be distributed either to the wife or children.

In the fall of 1977, a distribution “in kind’ of the estate assets was completed. Once the distribution had been made, pursuant to the terms of Trust “A”, Wilma requested in writing that the corpus of that trust be conveyed to her, thus terminating the trust. At the request of Wilma, Trust “B” was terminated by court order and the property was distributed equally to the eleven children, thus in effect giving the children one-half of the net estate.

Wilma received James, Jr’s corporate stock as the major portion of her distributive share, while the children received their father’s partnership interest. The division of James, Jr.’s partnership interest among the eleven children equaled a 7.36% interest to each, which combined with the .82% interest earlier given to each child totaled an 8.18% interest in the partnership per child.

In the spring of 1980, the Internal Revenue Service contested the valuation of certain assets of the estate. In 1981, an agreement was reached with the I.R.S. increasing the valuation of some assets of the estate. A dispute with the Montana Department of Revenue was resolved on a similar basis. Under the terms of these agreements, the gross valuation of the estate of James, Jr. was increased from $659,109 to $805,203. All of the additional taxes paid by the revaluation were paid by Wilma. There was no attempt to revise the in-kind distribution of assets made in 1977 or to recoup any of the additional costs from the children.

During the winter and spring of 1976, James, III borrowed $42,500 from the family corporation for construction of a house for himself and his family. A promissory note dated August 2, 1976, evidenced the indebtedness. James, III made a few payments on the debt, reducing his unpaid balance to $42,196. On January 10, 1978, at a meeting with the other family members, James, III transferred his 240 share interest in the family corporation and 8.18% interest in the family partnership to the family corporation in exchange for the cancellation of the promissory note.

This action arises out of a promise made to James, III by his mother at the January 10, 1978, meeting. James, III testified regarding the promise as follows:

“Q. Let’s go on. According to the Complaint, you alleged that you were promised the difference in value between the value of the stock and partnership interest and the amount of the note — the difference in those two values when the farm is sold. A. Yes, that’s what my mother told me.
“Q. Do you know when this happened? When did your mother tell you this? A. I was signing the corporation shares and out of the clear blue sky, she said, Tf I ever sell the farm, Jim, I’ll give you the rest of your money.’
“Q. Let’s get back to the promise for a moment. It’s my understanding from your testimony as you were signing the back of the corporate stock, signing it back to the corporation, your mother said to you, Tf I ever sell the farm, I’ll give you the rest of your money.’ A. That’s what she said.
“Q. And that was the only time she ever made such a promise? A. Yep.
“Q. And that was not the reason that you were signing the corporate stock? A. Not really, I guess.
“Q. You were not being induced by that promise to sign the stock? A. No. I felt an obligation to, I guess, do it.”

Count I of James, Ill’s complaint alleged that the above promise made by Wilma induced him to convey his interest in the partnership and corporation and constituted fraud, actual or constructive, as well as, undue influence. In count II of his complaint, James, III requested an accounting of the proceeds of the trusts created by the death of James, Jr.

On July 15, 1985, Wilma filed a motion for summary judgment. After considering the pleadings, interrogatories, request for admissions, the depositions of James, III and Wilma, the affidavit of attorney Yardley, Wilma’s brief and James, Ill’s oral argument the District Court, having found no genuine issue as to any material fact granted summary judgment to all defendants.

The general purpose of Rule 56, M.R.Civ.P., is to eliminate unnecessary trial, delay and expense. The purpose of the hearing and the motion is not to resolve factual issue, but to determine whether there is any genuine issue of material fact in dispute. The opposing party’s facts must be material and of a substantial nature, not fanciful, frivolous, gauzy nor merely suspicions. Westlake v. Osborne (Mont. 1986), [220 Mont. 91,] 713 P.2d 548, 550, 43 St.Rep. 200, 203; Silloway v. Jorgenson (1965), 146 Mont. 307, 310, 406 P.2d 167, 169. The party moving for summary judgment has the initial burden of showing that there is no genuine issue as to any fact deemed material in light of the substantive principles that entitled the movant to judgment as a matter of law. Cereck v. Albertson’s, Inc. (1981) 195 Mont. 409, 637 P.2d 509, 511 38 St.Rep. 1986, 1987-88. Once the movant has met this burden, the party opposing the motion must supply evidence supporting the existence of a genuine issue of fact. Pretty On Top v. Hardin (1979), 182 Mont. 311, 315, 597 P.2d 58, 60; Harland v. Anderson (1976), 169 Mont. 447, 451, 548 P.2d 613, 615. As we will discuss in detail below, we find that Wilma met her burden and the District Court properly granted summary judgment for all defendants as there existed no genuine issue of material fact.

Section 28-2-405, MCA, provides:

“Actual fraud, within the meaning of this part, consists in any of the following acts committed by a party to the contract or with his connivance with intent to deceive another party thereto or to induce him to enter into the contract:
“(1) the suggestion as a fact of that which is not true by one who does not believe it to be true;
“(2) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
“(3) the suppression of that which is true by one having knowledge or belief of the fact:
“(4) A promise made without any intention of performing it; or
“(5) any other act fitted to deceive.”

It is well settled that the mere making of a promise which the promissor fails to keep is not actionable fraud. Svennungsen v. Svennungsen (1974), 165 Mont. 161, 169, 527 P.2d 640, 644; Gallatin Trust & Savings Bank v. Henke (1969), 154 Mont. 170, 175, 461 P.2d 448, 450. Rather, one must prove that the maker of the promise had no intention of performing it when he made it. Howe v. Messimer (1929), 84 Mont. 304, 313, 275 P. 281, 283. This Court has also stated that one must make a prima facie showing of nine elements for a fraud claim to survive. Van Ettinger v. Pappin (1978), 180 Mont. 1, 9, 588 P.2d 988, 993-94. The nine elements are: (1) a representation; (2) falsity of the representation; (3) materiality of the representation; (4) knowledge of the falsity of the representation or ignorance of its truth; (5) speaker’s intent it should be relied upon; (6) the hearer’s ignorance of the falsity of the representation; (7) the hearer’s reliance on the representation; (8) the hearer’s right to rely on the representation; and (9) consequent and proximate injury caused by the reliance upon the representation. Wright v. Blevins (Mont. 1985), [217 Mont. 439,] 705 P.2d 113, 117, 42 St.Rep. 1311, 1315; Wortman v. Griff (Mont. 1982), [200 Mont. 528,] 651 P.2d 998, 1000, 39 St.Rep. 1916, 1918; Cowan v. Westland Realty Company (1973), 162 Mont. 379, 383, 512 P.2d 714, 716; Clough v. Jackson (1971), 156 Mont. 272, 279-80, 479 P.2d 266, 270.

In the instant case, James, III testified that his fraud claim was based upon the promise made by Wilma at the time he assigned his interest in the corporation and partnership to the corporation in exchange for cancellation of the $42,000 promissory note. James, III also testified that Wilma had no intent to deceive him:

“Q. I guess I asked you this and then you digressed or I didn’t get the final answer. When your mother made the promise, did she intend to deceive you? A. No, I don’t think she made it in that way, no. I can’t imagine — I can’t think of my own mother trying to deceive me. That’s just, you know, I don’t think of it that way, really. I feel like I’ve been had, but. Let’s — Can I say one thing? I have found out — found in the years gone by that Mom does tend to, a little bit, tell people what they — what she thinks that they want to hear because of comparing notes, kind of you could say comparing notes. We figure that she, you know, she used to come back. She would tell me one thing, she would tell John and Lyd another thing, she would tell sister Ruth another thing, you know, about the same thing.”

And finally, James, III testified that he did not rely upon Wilma’s promise in executing the assignment.

James, Ill’s own testimony clearly establishes that his fraud claim was deficient in that the fourth and seventh elements of the prima facie case were lacking. This the District Court noted in its order granting defendants summary judgment when it wrote:

“Plaintiff’s claim of actual fraud fails because, in his own deposition, he admits that only his mother, the Defendant West, ever made any alleged promise to pay him additional money, and that he did not rely upon said promise in signing over his share of the land partnership and stock in the family corporation. Plaintiff further admits that his mother did not intend to deceive him and defendants, therefore, have satisfied their burden of showing that there is no genuine issue as to any material fact as to the issue of actual fraud. By his own admission, there was no intent to deceive and he did not act in reliance upon any representation of his mother.”

Section 28-2-406, MCA, provides:

“Constructive fraud consists in:
“(1) any breach of duty which, without any actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under him by misleading another to his prejudice or to the prejudice of anyone claiming under him; or
“(2) any such act or omission as the law especially declares to be fraudulent, without respect to actual fraud.”

In Mends v. Dykstra (1981), 195 Mont. 440, 448, 637 P.2d 502, 506, we said breach of a duty to disclose material facts constitutes constructive fraud. As the District Court noted, James, Ill’s claim of constructive fraud fails for essentially the same reason his actual fraud claim failed. That is the record is void of any facts to establish any duty owed to James, III or that any such duty was breached to his prejudice.

Finally, Wilma contends the fraud claims are also barred by the two year statute of limitations. Section 27-2-203, MCA. The act of alleged fraud took place January 10, 1978, and the complaint was filed on December 20, 1974. The only way James, Ill’s claims would not be barred by the statute is to claim that the statute did not begin to run until discovery of the alleged fraud. See Turley v. Turley (Mont. 1982), 199 Mont. 265, 273-74, 649 P.2d 434, 438. James, III apparently made no such showing. Thus, the fraud claims fail for the reasons stated and because of the statute of limitations.

With regard to the third claim of count I of James, Ill’s complaint, undue influence, the District Court determined it was barred by the statute of limitations. Section 27-2-215, MCA. James, III does not contest this aspect of the summary judgment on appeal.

Finally, count II of James, Ill’s complaint requests an accounting of the proceeds of the trusts created by the death of his father. James, III here contends that because there exists questions of fact concerning: (1) the value of James, Jr’s estate; (2) the value of James, Ill’s inherited share of the estate; (3) circumstances surrounding the transfer therefore; and (4) whether there was fraud surrounding the probate of the estate, the summary judgment should be set aside.

The District Court, in granting all defendants summary judgment on Count II stated:

“Defendants are entitled to Summary Judgment upon Count Two of Plaintiffs complaint because none of said defendants have ever had any duty to account to any person for anything arising out of the trusts or estates of James F. Fleming, Jr. The Court has reviewed Lake County Probate file No. 4581 in the Matter of the Estate of James F. Fleming, Jr. and finds that the above-named defendants, Fleming Farms, Inc. and Fleming Land Partnership, have absolutely nothing to do with said estate. The above-named defendant Wilma M. (Fleming) West is named individually and not as the Personal Representative of the Estate of James F. Fleming, Jr., and as such individual has no duty or obligation to account to any person concerning said estate or trust which resulted therefrom.”

Summary judgment on the claim for an accounting was proper.

We, therefore, affirm the grant of summary judgment by the District Court.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, HARRISON, WEBER, HUNT and GULBRANDSON concur.


author: MR. JUSTICE GULBRANDSON

text:
    In the Matter of the MENTAL HEALTH OF D.R.S., Appellant.
    No. 85-287.
    Submitted on Briefs Jan. 30, 1986.
    Decided May 6, 1986.
    718 P.2d 335.

      John Keith, Great Falls, for appellant.
    Mike Greely, Atty. Gen., Patricia Schaeffer, Asst. Atty. Gen., Helena, Patrick L. Paul, Co. Atty. Steven Lobdell, Deputy Co. Atty., Great Falls, for respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

D.R.S. appeals from an order of the Cascade County District Court committing him to Montana State Hospital. He argues that the evidence was insufficient to support the conclusion that he is seriously mentally ill. We affirm.

On November 5, 1982, Dana J. Minster, a clerk at Western Warehouse Foods in Great Falls, Montana, was the victim of an armed robbery. The two robbers took Minster behind a woodpile by the store, taped him up, covered him with wood and left him in the cold. He identified D.R.S. as the robber who taped him up while the other one threatened to shoot Minster if he didn’t tell them the combination to the safe. Minster testified that both robbers frightened him and that he feared for his life.

Following the robbery, criminal charges were filed against D.R.S. A psychiatric examination showed that D.R.S. suffered from serious mental disease and lacked the capacity to understand the proceedings against him and to assist in his own defense. Defense counsel moved, and the State stipulated, to suspend proceedings because of D.R.S.’ lack of fitness to proceed in the matter, pursuant to Section 46-14-221, MCA. The District Court then committed him to the custody of the Department of Institutions and he was placed in Montana State Hospital on January 26, 1983.

D.R.S. remained in the hospital until the fall of 1984 when he was declared fit to proceed in the criminal matter. On October 1, 1984, he was transferred to the Cascade County Jail to await trial. The District Court dismissed the criminal charges on January 8, 1985, due to the lapse of time which had occurred while D.R.S. was unfit to proceed. The District Court also ordered the County Attorney to file a petition seeking involuntary commitment of D.R.S. to Montana State Hospital. D.R.S. remained in custody pending this petition.

After a probable cause hearing, the District Court held a hearing on the civil commitment petition on February 14, 1985. On February 26, 1985, the District Court found that D.R.S. suffered from serious mental illness and ordered him committed to Montana State Hospital with release to an appropriate supervised community setting when the hospital staff determined such a release would be advisable. The District Court also ordered that D.R.S. be transported to the Montana State Hospital as soon as possible.

D.R.S. appeals this order raising one issue:

Whether sufficient evidence supports the District Court’s finding that D.R.S. is seriously mentally ill.

Section 53-21-102(14), MCA, defines seriously mentally ill as

“ . . . suffering from a mental disorder which has resulted in self-inflicted injury or injury to others or the imminent threat thereof or which has deprived the person afflicted of the ability to protect his life or health. For this purpose, injury means physical injury . . .”

The standard of proof is set forth in Section 53-21-126(2), MCA.

“The standard of proof in any hearing held pursuant to this section is proof beyond a reasonable doubt with respect to any physical facts or evidence and clear and convincing evidence as to all other matters, except that mental disorders shall be evidenced to a reasonable medical certainty. Imminent threat of self-inflicted injury or injury to others shall be evidenced by overt acts, sufficiently recent in time as to be material and relevant as to the respondent’s present condition.” [Emphasis added.]
“. . . [T]he law does not require proof beyond a reasonable doubt that an injury will occur in the future. . . The law requires only proof beyond a reasonable doubt that the threat of future injury presently exists and that the threat is imminent. . .” Matter of F.B. (Mont. 1980), 615 P.2d 867, 869, 37 St.Rep. 1442, 1445.

An overt act or behavior is evidence of a person’s status as seriously mentally ill. This term of art refers to a manifestation of dangerousness. F.B., supra. When this requirement is coupled with a corresponding psychiatric evaluation, the District Court can better assess the likelihood that the person will commit similar acts. F.B., supra.

D.R.S. contends that the State failed to show “overt acts, sufficiently recent in time as to be material and relevant” to his present condition. He claims that the acts allegedly committed in furtherance of the robbery, occurring almost two and one-half years prior to the hearing, do not satisfy the requirement of a recent overt act. In Matter of the Mental Health of D.B. (Mont. 1985), [218 Mont. 467,] 709 P.2d 161, 162, 42 St.Rep. 1747, 1749, this Court stated past behavior can be material and relevant to a person’s present condition. The circumstances in the case at bar are such that a lapse of time between the overt act and the commitment proceedings do not preclude relying on the overt act as evidence of D.R.S.’ mental condition.

Dr. James Deming, the psychologist who treated D.R.S. for the two-year period at Montana State Hospital testified that D.R.S.’ condition was essentially unchanged from that in 1982. He testified that:

“[D.R.S.] continued to exhibit symptoms of a significant mental illness, continued to be confused, continued to develop neologisms or new words, continued to be convinced of specific bizarre ideations, as an example, [D.R.S.] was convinced that his lawyer was my brother. On the basis of the information that both of us wore mustaches. He continued to have — to exhibit a significant thought disorder which renders him unpredictable, and in my judgment, imminently dangerous.”

Dr. Deming relied on several factors in concluding that D.R.S. is dangerous. In addition to the primary element of the charges against D.R.S., Dr. Deming considered his statements of unwillingness to accept supervision in a community setting for his disorder, D.R.S.’ stated intent to use alcohol when he leaves the hospital, and the deterioration of his condition while in the county jail. Dr. Deming explained that a small amount of alcohol would render D.R.S. confused and disoriented, resulting in dangerous behavior, and that he had not received medication during his stay in jail. The fact that D.R.S. had not exhibited dangerous or “acting-out” behavior in the hospital was due to the supervised environment and the control of his medication. If taken out of this supervised setting, Dr. Deming said that D.R.S. would become imminently dangerous within two months. Finally, the doctor expressed his opinion that D.R.S. is seriously mentally ill and imminently dangerous to himself and others due to his mental disease of paranoid schizophrenia.

D.R.S.’ conduct during the robbery, under the circumstances presented here, is “sufficiently recent in time as to be material and relevant” to his present condition. Section 53-21-126(2), MCA. The time lapse between the overt act and his commitment hearing was due to his serious mental illness. The evidence showed his condition remained as it was at the time of the overt act. In addition, the psychiatric evaluation stated that D.R.S. would be imminently dangerous within two months of leaving the supervised hospital setting. We hold that the District Court had sufficient evidence to find D.R.S. is seriously mentally ill.

The order of the District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, HARRISON and SHEEHY concur.


text:
    JACK L. WILKERSON, Claimant and Respondent, v. B&J USED FURNITURE, Employer and Appellant, and Rockwood Company, Defendant and Appellant. ROBERT L. JANES, Claimant and Respondent, v. B&J USED FURNITURE, Employer and Appellant, and Rockwood Company, Defendant and Appellant.
    No. 85-582.
    Submitted on Briefs Feb. 26, 1986.
    Decided May 6, 1986.
    718 P.2d 338.
    Anderson, Brown, Gerbase, Cebull & Jones, Steven J. Harman, Billings, for appellants.
    Towe, Ball, Enright & Mackey, Gregory R. Todd, Billings, for claimants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The employer and insurer appeal the decision of the Workers’ Compensation Court which determined the amount of temporary total disability payments due to employees Jack Wilkerson and Robert Janes. We affirm.

The sole issue on appeal is whether the Workers’ Compensation Court erred in setting the rate of claimants’ weekly disability payments.

The claimants established a partnership to buy and sell used furniture in Billings in October 1984. Neither of them had been in the used furniture business previously. Before opening their business, they purchased workers’ compensation insurance through Rockwood Company.

On their fourth day of business, both claimants were injured while unloading a stove from their pickup truck. The insurer accepted liability and set the rates for temporary total disability benefits at $153.43 per week, calculated on the basis of annual wages of $12,000 for each claimant.

The claimants requested that the Workers’ Compensation Court increase their benefits. By stipulation of the parties, the case was submitted to the court on the depositions of the claimants and the insurance agent, and the exhibits attached to those depositions. The only evidence of the rate at which compensation should be set was the business’ application for workers’ compensation insurance and the testimony of claimants and the insurance agent as to the application’s intended meaning. The Workers’ Compensation Court increased claimants’ weekly compensation rate to $191.89 each, based on an estimated annual income for each claimant of $15,000, or half the expected annual payroll shown on the insurance application.

It is undisputed that after the claimants were injured they were entitled to temporary total disability benefits under Section 39-71-701, MCA, consisting of “66% % of the wages received at the time of the injury.”

“Wages” means the average gross earnings received by the employee at the time of the injury for the usual hours of employment in a week, and overtime is not to be considered. Sick leave benefits accrued by employees of public corporations, as defined by Subsection (16) of this section, are considered wages.”

Section 39-71-116(20), MCA. No evidence of the claimants’ actual earnings from the business was presented, presumably due to its newness. Nor was any evidence presented to show what used furniture dealers in the Billings area earned on a weekly basis. There was testimony that prior to opening their furniture business, Mr. Wilkerson derived an irregular income primarily from gambling, and Mr. Janes had worked most recently for $4.00 an hour as a laborer.

The only documentary evidence before the court was the business’ application for workers’ compensation insurance. It showed that the business was expected to employ three persons and have a total annual payroll of $30,000. The claimants testified that they had intended their insurance to provide for estimated annual salaries of $30,000 for each of them, based on what they understood a laborer would make. They also testified that the business employed only themselves, that they had no immediate plans to hire a third employee, and that they had not been aware of the figures shown on the application. The insurance agent testified that he and the claimants discussed the figures on the application. He also testified that the premium was initially set based on a $30,000 estimated annual payroll for the business, consisting of $12,000 apiece for claimants and $6,000 for a future part-time employee. He testified that the policy premium would have been audited annually and, if necessary, adjusted.

The brevity of the claimants’ employment as used furniture businessmen is of no relevance in computing their rights to workers’ compensation. 2 Larson, Workmen’s Compensation Law, Section 60.21(a) at 10-580 (1985). The entire objective of computation of average weekly wages is to arrive at as fair an estimate as possible of claimant’s future earning capacity. 2 Larson, Workmen’s Compensation Law, Section 60 at 10-538 (1985). Our standard of review is whether substantial evidence exists to support the findings and conclusions of the Workers’ Compensation Court. Ridenour v. Equity Supply Co. (Mont. 1983), [204 Mont. 473,] 665 P.2d 783, 788, 40 St.Rep. 1012, 1018. In the absence of better evidence, the Workers’ Compensation Court based its computation of the claimants’ weekly compensation rate on the estimated payroll for the business divided by the actual number of employees. We conclude that the court arrived at a fair estimate of claimants’ future earning capacity, from the evidence presented in this unique case. There is substantial support in the record for the court’s conclusion. We affirm.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, HARRISON and HUNT concur.


author: MR. JUSTICE WEBER MR. JUSTICE HARRISON,

text:
    VANDALIA RANCH, INC., a Montana corporation, Plaintiff and Respondent, v. FARMERS UNION OIL & SUPPLY COMPANY OF HINSDALE, Montana, Monsanto Company, et al., Defendants and Appellants.
    No. 85-356.
    Submitted April 8, 1986.
    Decided May 9, 1986.
    718 P.2d 647.

      Stuart Kellner, Helena, Pearce, Anderson & Durick, Patrick W. Durick argued, Bismarck, N.D., for defendants and appellants.

      Smith, Baillie & Walsh, James R. Walsh argued, Great Falls, Robert Hurly, Glasgow, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Defendant Monsanto Company (Monsanto) appeals a jury verdict entered against it and defendant Elanco Products Company (Elanco) in Valley County District Court. The jury awarded plaintiff over $200,000 in damages for loss of its wheat crop which had been treated with herbicides manufactured and marketed by Monsanto and Elanco. We affirm, with modification.

The issues are:

1. Was the District Court in error in disregarding certain disclaimers of liability and limitations of remedies printed on the cans of Far-Go and in the Far-Go instructions?

2. Did the District Court err in instructing the jury that any ambiguities in the wording on the labels and instructions for Far-Go must be resolved against Monsanto?

3. Did the District Court properly admit into evidence the expert testimony of Dr. Peter Fay and Donald Watterud?

4. Was there substantial evidence to support the jury’s verdict on defendants’ liability and on the amount of damages?

Vandalia is a family farm corporation owned and operated by a father and two sons, the Strommens. At the time involved here, Vandalia Ranch consisted of over 2,000 acres of irrigated and non-irrigated cropland, and about 500 cows.

In 1980, the Strommens anticipated a weed problem with wild oats and pigeon grass. They had used herbicides and other methods to control weeds, but had not found anything which satisfied them. After reading advertisements in farm journals and receiving oral recommendations from Monsanto and Elanco representatives, the Strommens decided to use a tank mix of Far-Go, manufactured and marketed by Monsanto, and Treflan, manufactured and marketed by Elanco. They purchased the herbicide from Farmers Union Oil & Supply Company of Hinsdale, Montana (Farmers Supply). Farmers Supply also applied the herbicide.

This case involves 495 acres planted with Prodax spring wheat seed, on which the Far-Go/Treflan mix was used. Having received no instructions to do otherwise, the Strommens followed their usual procedure in planting the seed in the bottom of furrows at a depth of IV2 to 2 inches. Then the Farmers Union representative, following the written Far-Go instructions, applied the herbicide to the soil surface and mixed it into the top 1 inch or IV2 inches of soil using a multi-weeder implement. In the process of mixing, the furrows were smoothed out and the seeds were left 3 to 4 inches deep in the soil. There was testimony that this was too deep. The seed failed to germinate and a replacement crop had to be planted. Vandalia sued Monsanto, Elanco, and Farmers Supply under theories of breach of implied and express warranty and strict liability in tort.

The jury found no breach of implied warranty by any of the defendants and no fault on the part of Vandalia or Farmers Supply for any damages. It found that Monsanto and Elanco were each 50 percent liable to Vandalia for damage under breach of express warranty and strict liability in tort. This appeal is brought solely by Monsanto so that we are not concerned with Elanco or its Treflan herbicide.

I

Was the District Court in error in disregarding certain disclaimers of liability and limitations of remedies printed on the cans of Far-Go and in the Far-Go instructions?

The written instructions furnished with the Far-Go herbicide set forth limitations of warranty and liability which confined Monsanto's liability for damages from use of Far-Go to providing a free replacement batch of herbicide, or a refund of the purchase price. The Strommens testified that they were not made aware of the limitations on Monsanto’s liability until a copy of the instructions was mailed to them after they had made a claim for their losses. The District Court held that Monsanto’s limitations on liability were not part of the contract between the parties because the limitation clause was not negotiated between the parties and was not part of the bargain. The District Court also ruled that the limitations were unconscionable. As a result of these rulings, the jury was not allowed to consider the limitations of liability in assessing damages.

A disclaimer or limitation of warranty contained in a manufacturer’s manual received by purchasers after sale does not limit recovery for implied or express warranties made before or at the time of sale. Whitaker v. Farmhand, Inc. (1977), 173 Mont. 345, 354, 567 P.2d 916, 921. There is substantial evidence in the record to support the conclusion that the Strommens were not aware of the Monsanto limitations on liability, whether through advertisements which they had read, through the written disclaimers on the drums, through the instruction disclaimer, or through their oral contract for the purchase and application of the chemicals. We affirm the District Court’s holding that the disclaimers of liabilities and limitations of remedies printed on the cans and in the Far-Go instructions were not a part of the contract between the parties. Because the limitations were not a part of the contract, we do not find it necessary to rule upon the holding of the District Court that the limitations of liability were unconscionable.

II

Did the District Court err in instructing the jury that any ambiguities in the wording on the labels and instructions for Far-Go must be resolved against Monsanto?

This issue relates to the Far-Go planting and application instructions, as they were used by the Farmers Union representative. The District Court instructed the jury, over Monsanto’s objections, that any ambiguities in the labels and instructions provided by defendants should be construed against them. Monsanto cites an Oregon case, Weber v. Kamyr, Inc. (1974), 269 Or. 617, 525 P.2d 1307, 1314, which held that this rule of construction is a rule of law for the court to apply and is not a proper subject for a jury instruction. Vandalia argues that this jury instruction was justified because, at trial, defendants presented the meaning of the application instructions as a factual issue.

We conclude that under the Monsanto case as presented to the jury, the meaning of the written instructions for planting and application constituted an issue of fact for determination by the jury. We conclude that the jury instruction is a correct statement of law under the facts of the present case. See Section 28-3-206, MCA. We affirm the giving of this instruction.

III

Did the District Court properly admit into evidence the expert testimony of Dr. Peter Fay and Donald Watterud?

At trial, Vandalia presented expert testimony by Dr. Peter Fay of Montana State University about his greenhouse study of the effects of deep-seeding and herbicide incorporation on spring wheat. Vandalia also presented testimony by Donald Watterud as to the potential crop yield of its 495 acres of field.

Monsanto argues that Dr. Fay’s testimony should not have been admitted into evidence. Dr. Fay testified in a deposition that he was unable to draw any conclusions as to this case as a result of his greenhouse study. Monsanto argues therefore that his testimony did not meet the purpose of expert testimony as defined in Rule 702, M.R.Evid.:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”

Expert opinion is admissible if the matter is sufficiently beyond common experience that the opinion of the expert will assist the trier of fact. State v. Campbell (1965), 146 Mont. 251, 258, 405 P.2d 978, 983. Although he was unable to draw specific conclusions as to this case, Dr. Fay made general observations about the effects of deep-seeding, cold soil, soil type, Far-Go, and Treflan on dwarf and semi-dwarf wheat. These observations were based on his studies and years of experience in horticulture. We conclude that those observations assisted the jury to understand the evidence and determine facts at issue. We hold that it was not error to admit his testimony into evidence.

Monsanto argues that the testimony of Donald Watterud as to potential crop yield should not have been admitted into evidence under Rule 401, M.R.Evid., because the testimony was irrelevant as to damages. Mr. Watterud testified as to the potential crop yield of the 495 acres based on his estimate made in 1984 from a small area of the field. Monsanto contends that because of the size and distance in time of the sample, Donald Watterud’s testimony did not relate to any fact that is of consequence in the action.

Rule 401, M.R.Evid. provides that “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” is relevant. Mr. Watterud’s testimony has the tendency to make the amount of crop loss claimed by Vandalia more probable. There was testimony that actual crop yield figures for spring wheat on the 495 acre section were not available. The Strommens had not planted a comparable crop using a herbicide, irrigation, and fertilization. Monsanto also argues that Mr. Watterud’s testimony is too remote. We will not interfere with the District Court’s determination of whether evidence is too remote in time or space unless manifest abuse of discretion is shown. Preston v. McDonnell (Mont. 1983), [203 Mont. 64,] 659 P.2d 276, 277, 40 St.Rep. 297, 299. Given the absence of actual crop yield figures for spring wheat on the 495 acres, Mr. Watterud’s testimony appears to be the best available evidence. No manifest abuse of the District Court’s discretion has been shown. We hold that Mr. Watterud’s testimony was properly admitted into evidence.

IV

Was there substantial evidence to support the jury’s verdict on defendants’ liability and on the amount of damages?

The jury awarded Vandalia the following damages for breach of express warranties under contract theory:

Loss of 1980 spring wheat crop $135,831.20

Loss of baled straw 31,828.12

Loss of grazing 13,095.00

It awarded damages under a strict liability theory as follows:

Loss of 1980 spring wheat crop $ 64,600.10

Loss of baled straw 18,248.12

Loss of grazing 13,095.00

Monsanto attacks this verdict on several grounds.

First, Monsanto argues that the testimony of Vandalia’s expert Mr. Turner that Vandalia’s loss was caused by use of the herbicides is “so inconsistent, unfounded, and obviously incorrect that it should not be allowed to support a verdict.” No objection was made at trial to Mr. Turner’s qualifications or conclusions. Therefore, we will not consider the issue. Penn v. Burlington Northern, Inc. (1980), 185 Mont. 223, 228, 605 P.2d 600, 604.

Monsanto contends that, in this case, implied warranties under the Uniform Commercial Code offer greater protection than do the express warranties claimed by Vandalia. The jury’s verdict makes no sense, argues Monsanto, because they found a breach of express warranty but no breach of implied warranties. We first examine the jury’s verdict that express warranties were breached.

Whether a statement is an express warranty is an issue of fact. Whitaker v. Farmhand, Inc. (1977), 173 Mont. 345, 354, 567 P.2d 916, 921. This court will not disturb a jury’s determination of fact when there is substantial evidence to support it. Whitaker, 567 P.2d at 923. Here, the Strommens testified that they mentioned Prodax spring wheat as a possible crop on their land, and that the Monsanto representative recommended the use of the Far-Go/Treflan mix to control wild oats and pigeon grass on their crop. The evidence supports the jury’s finding that express oral warranties were made by Monsanto to the Strommens and that those warranties were breached. Because Vandalia would not be able to recover any more damages if a breach of implied warranties was found, it is not necessary for us to consider whether the jury should also have found that Monsanto breached implied warranties.

Monsanto argues that there is no credible evidence to support the award of damages for loss of straw and grazing. Vandalia presented testimony by Eliot Strommen and by an expert witness as to calculations of these damages. There is nothing in the record to contradict this testimony, and we therefore affirm the jury’s verdict as to these damages.

The jury set the date on which interest on damages would begin accruing as October 16, 1980. According to the jury form, this date was the expected date of harvest of the crop. Monsanto argues that this determination is nonsensical, because that puts the date of expected harvest after the date (first week of October, 1980) on which the replacement crop was actually harvested. We are unable to discern any basis for setting the expected date of harvest after the actual date of harvest of the replacement crop.

This Court may properly modify a judgment when the verdict does not appear to have resulted from passion and prejudice, and when any error may be ascertained by mathematical calculation. Zook Bros. Construction Company v. State (1976), 171 Mont. 64, 76, 556 P.2d 911, 918. We have no reason to believe that the jury set the expected date of harvest on the basis of passion or prejudice. We therefore modify the judgment as to the expected date of harvest. Farmers Union Exhibit #3 provides information on prices for spring wheat on various dates in fall 1980. It includes a price within the first week of October — on October 2, 1980. We remand this matter to District Court for recalculation of damages, using October 2,1980 as the expected date of harvest of the spring wheat crop. With the exception of this recalculation, we affirm the judgment of the District Court.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES MORRISON, GULBRANDSON, SHEEHY and HUNT concur.

MR. JUSTICE HARRISON,

concurring and dissenting:

I concur and dissent.

I would return the case to the District Court on the issue of damages. I find no credible evidence to support a target yield expectation of from 70 to 80 bushels per acre. In addition to allow the testimony as to how many pounds of nitrogen or any fertilizer is required to raise a bushel of wheat is so speculative that it should not have been allowed.