author: JUSTICE GRAY JUSTICE LEAPHART,

text:
    NATIONAL FARMERS UNION PROPERTY AND CASUALTY COMPANY, Plaintiff and Respondent, v. DAVID GEORGE, Defendant and Appellant.
    No. 97-685.
    Submitted on Briefs May 14, 1998.
    Decided August 24, 1998.
    1998 MT 205.
    55 St.Rep. 873.
    290 Mont. 386.
    963 P.2d 1259.

      For Appellant: Robert L. Stephens, Jr.; R. L. Stephens, Ltd., Billings.
    For Respondent: James R. Halverson; Herndon, Sweeney & Halverson, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶ 1 David George (George) appeals from the judgment entered by the Thirteenth Judicial District Court, Yellowstone County, on its order granting summary judgment to National Farmers Union Property and Casualty Company (Farmers) and denying his motion for summary judgment. We affirm.

¶2 The issue on appeal is whether the District Court erred in granting summary judgment to Farmers on the basis of its conclusion that George’s trailer was not a “utility trailer” for purposes of liability coverage under the Farmers policy.

BACKGROUND

¶3 On February 4,1997, Angela Arnold (Arnold) was driving along Monad Road in Billings, Montana, when she collided with a fifth wheel trailer owned by George. The trailer was parked on the shoulder of the road and was not attached to any other vehicle. Arnold subsequently filed an action against George seeking damages for bodily injury and property damage resulting from the collision.

¶4 George had an automobile liability policy issued by Farmers and he submitted a claim requesting coverage for any liability incurred as a result of Arnold’s accident. Farmers denied coverage and filed this declaratory judgment action requesting the District Court to determine that it had no obligation under the insurance policy at issue to either defend George or pay any damages awarded in Arnold’s action. George answered the declaratory judgment complaint, alleging that his fifth wheel trailer was covered by the Farmers liability policy, and counterclaimed against Farmers for attorney’s fees incurred in defending the declaratory judgment action, as well as costs and attorney’s fees incurred in defending Arnold’s action.

¶5 Both Farmers and George moved for summary judgment on the issue of whether George’s trailer was a covered vehicle under his Farmers policy. The District Court determined that George’s trailer was not a “utility trailer” as defined in the policy because it was not being towed by another vehicle at the time Arnold collided with it and, as a result, the trailer was not covered by the policy. Therefore, the court concluded that Farmers was not obligated to defend or indemnify George in the action brought by Arnold, granted summary judgment to Farmers and entered judgment accordingly. George appealed.

STANDARD OF REVIEW

¶6 We review a district court’s grant or denial of a summary judgment motion de novo, using the same Rule 56, M.R.Civ.P., criteria applied by the district court. Stutzman v. Safeco Ins. Co. of America (1997), 284 Mont. 372, 376, 945 P.2d 32, 34 (citations omitted). The moving party must demonstrate the absence of any genuine issues of material fact and entitlement to judgment as a matter of law. Stutzman, 284 Mont. at 376, 945 P.2d at 34. If the moving party meets this burden, the opposing party must come forward with evidence establishing the existence of genuine issues of material fact precluding summary judgment. Stutzman, 284 Mont. at 376, 945 P.2d at 34.

¶7 Here, the parties stipulated to the material facts of the case and, as a result, the only question before us is whether, under the terms of the insurance policy, Farmers was entitled to judgment as a matter of law. The interpretation of an insurance policy presents a question of law (Stutzman, 284 Mont. at 376, 945 P.2d at 34 (citations omitted)), and we review a district court’s conclusions of law to determine whether the interpretation of the law is correct. Herron v. Schutz Foss Architects (1997), 282 Mont. 94, 98, 935 P.2d 1104, 1107.

DISCUSSION

¶8 Did the District Court err in granting summary judgment to Farmers on the basis that George’s trailer was not a “utility trailer” for purposes of liability coverage under the Farmers policy?

¶9 The only vehicle listed on the declarations page of the Farmers policy at issue is a 1988 Ford F250 supercab pickup truck. Thus, George’s trailer was not covered as an expressly insured vehicle. However, the policy’s liability coverage terms state that Farmers “will pay damages... arising out of the ownership, maintenance or use of a car or utility trailer.” It is undisputed that George’s trailer is not a “car” as defined under the policy. Consequently, in order to come within the liability coverage of the policy, George’s trailer must meet the policy’s definition of “utility trailer.” In that regard, the policy states that

“Utility trailer” means a vehicle designed to be towed by a private passenger car or farm car, including a farm wagon or farm implement, while towed by a private passenger car, utility car, or farm car.

¶ 10 The District Court determined that George’s fifth wheel trailer was not a “utility trailer” because it was not being towed by another vehicle at the time of the accident. On that basis, the court concluded that the trailer was excluded from coverage under the policy and Farmers was not obligated to defend or indemnify George in the action brought by Arnold. George argues that the District Court erred in concluding his trailer was not a utility trailer.

¶11 According to George, a utility trailer — as defined in the policy — means simply a vehicle designed to be towed by a private passenger car or farm car. He contends that the phrase “while towed by a private passenger car, utility car, or farm car” modifies only the preceding phrase “including a farm wagon or farm implement” and is not a requirement a trailer be in the process of being towed in order to be a utility trailer. Under George’s interpretation, a utility trailer is any vehicle designed to be towed by a passenger or farm car, and one variety of such a vehicle may be “a farm wagon or farm implement while towed by a private passenger car.” We disagree.

¶12 Several well-established principles guide our interpretation of insurance policies. If the language of a policy is clear and explicit, the policy must be enforced as written. Stutzman, 284 Mont. at 376, 945 P.2d at 34. “This Court is bound to interpret the terms of [the] insurance policy according to their usual, common sense meaning as viewed from the perspective of a reasonable consumer of insurance products.” Stutzman, 284 Mont. at 376, 945 P.2d at 34. Ambiguities are construed against the insurer and exclusions from coverage are construed narrowly because they are contrary to the fundamental protective purpose of insurance policies. Wellcome v. Home Ins. Co. (1993), 257 Mont. 354, 356-57, 849 P.2d 190, 192.

¶13 It is clear from the policy language — and the parties do not dispute — that, in order to be a “utility trailer,” a vehicle must be “designed to be towed by a private passenger car or farm car....” The subsequent phrase “including a farm wagon or farm implement” is set off by commas and, as such, constitutes an expanded and clarified description of a vehicle designed to be towed. The policy definition then goes on to provide that a vehicle designed to be towed is a utility trailer only “while towed by” a private passenger, utility or farm car. George’s interpretation would require us to effectively disregard or delete the comma at the end of the “including a farm wagon or farm implement” clause, but our obligation to enforce clear and explicit policy provisions as written precludes us from doing so. The policy’s “while towed by” language clearly applies to all vehicles designed to be towed. Thus, a vehicle designed to be towed by a private passenger car or farm car is a utility trailer under the Farmers policy before us while being towed by such a car and, conversely, such a vehicle is not a utility trailer if it is not being towed.

¶14 Here, it is undisputed that George’s trailer was parked on the shoulder of the road at the time Arnold collided with it and was not being towed by, or otherwise attached to, any other vehicle. As a result, George’s trailer was not a “utility trailer” and was excluded from coverage under the policy.

¶ 15 George contends, however, that construing the utility trailer definition in this manner “results in completely absurd circumstances” and he presents several hypothetical scenarios under which he asserts liability coverage would be denied contrary to the reasonable expectations of the insured. Because our function is to interpret the law and apply it to the facts before us, we do not address George’s hypothetical scenarios. Moreover, our interpretation of the “utility trailer” definition does not preclude coverage for trailer vehicles under all circumstances, so as to potentially defeat the expectations of a reasonable insurance consumer, but precludes coverage only for those not being towed. In this regard, the policy is clear, explicit and unambiguous and must be enforced as written. See Stutzman, 284 Mont. at 376, 945 P.2d at 34. While the result may seem — and, indeed, be — harsh, that does not mean it is absurd. See Canal Ins. Co. v. Bunday (1991), 249 Mont. 100, 107, 813 P.2d 974, 978.

¶16 George also points out that the language of the policy obligates Farmers to pay damages “arising out of the ownership, maintenance or use of a car or utility trailer” and he argues therefrom that this express assumption by Farmers of liability for damages is not conditioned on the utility trailer being towed or otherwise attached to another vehicle at the time of the incident resulting in the damages. His argument is without merit. The coverage provision on which George relies includes the term “utility trailer.” That term is defined in the general definitions applicable to the entire policy and that definition contains the exclusion for trailer vehicles which are not being towed at the time the liability is incurred. Thus, replacing the term “utility trailer” in the coverage provision highlighted by George with the policy’s definition of the term, the provision requires Farmers to pay damages “arising out of the ownership, maintenance or use of a car or ‘a vehicle designed to be towed by a private passenger car or farm car ... while towed by a private passenger car, utility car, or farm car.’ ”

¶17 We conclude that the term “utility trailer” as defined in the Farmers policy at issue clearly means a vehicle designed to be towed by a private passenger car or farm car while being towed by such private passenger or farm car. We hold, therefore, that the District Court did not err in concluding that George’s trailer was not a “utility trailer” for purposes of liability coverage under the Farmers policy and in granting summary judgment to Farmers on that basis.

¶18 Affirmed.

JUSTICES NELSON, TRIEWEILER and REGNIER concur.

JUSTICE LEAPHART,

dissenting.

¶19 I dissent. The language of the policy presents an ambiguity which should be resolved against the insurer.

¶20 The language of the policy obligates Farmers to pay damages “arising out of the ownership, maintenance or use of a car or utility trailer.” George argues that this assumption of liability by Farmers for damages is not conditioned on the utility trailer being towed at the time of the incident in question. The Court purports to resolve this argument by pointing out that when the policy definition of utility trailer is inserted into the coverage provision relied upon, the provision requires Farmers to pay damages “arising out of the ownership, maintenance or use of a car or...” a “vehicle designed to be towed by a private passenger car or farm car... while towed by a private passenger car, utility car, or farm car.” The fallacy of the Court’s approach becomes apparent however when you consider that the “while towed” language has to modify not only “use” but also “ownership” and “maintenance.” The Court’s resolution does not work with ownership or maintenance. In other words, “while towed” can modify “use,” but it makes no sense to say that there is coverage for maintenance of the trailer while being towed. You do not maintain a trailer while it is being towed. Likewise, it makes no sense to provide coverage for ownership “while [being] towed.” Ownership is not temporally divisible. George either owned the trailer or did not. Ownership does not hinge upon whether the trailer is being towed. George owned the trailer for all purposes, both while it was being towed and in its stationary position. Thus there is coverage “arising out of [his] ownership” of the trailer.

¶21 In my view, the construction of the policy propounded by Farmers and adopted by the Court is not consistent with the coverage provisions of the policy. The policy, at best, is ambiguous and should be resolved against the insurer. Section 28-3-206, MCA; Bauer v. Mountain West Farm Bureau Mutual Ins. Co. (1985), 215 Mont. 153, 156, 695 P.2d 1307, 1309. 1 would reverse the judgment of the District Court.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. SCOTT MICHAEL ABE, Defendant and Appellant.
    No. 97-307.
    Submitted on Briefs May 7, 1998.
    Decided August 25, 1998.
    1998 MT 206.
    55 St.Rep. 876.
    290 Mont. 393.
    965 P.2d 882.

      For Appellant: Larry D. Mansch, Public Defender Office; Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Elizabeth Horsman, Assistant Attorney General; Helena; M. Shaun Donovan, Mineral County Attorney; Superior; John P. Connor, County Prosecutor Services Bureau, Helena.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶1 On February 25,1996, defendant Scott Michael Abe was charged by information filed in the District Court of the Fourth Judicial District in Mineral County with deliberate homicide in violation of § 45-5-102, MCA. On August 23,1996, six months after the original information was filed, the court permitted the State to file an amended information which charged Abe with deliberate homicide by accountability. Following a trial by jury, Abe was convicted of deliberate homicide by accountability. He appeals his conviction based on pretrial and evidentiary decisions of the District Court. We affirm the judgment of the District Court.

¶2 The issues on appeal are:

¶3 1. Did the District Court err when it granted the State’s motion for leave to file an amended information?

¶4 2. Did the District Court err when it denied Abe’s motion for change of venue?

¶5 3. Did the District Court err when it denied Abe’s motion to exclude from evidence the Polar Sorel winter boots that were seized from Abe’s residence?

FACTUAL BACKGROUND

¶6 On November 28,1995, Chris Hansen called the Mineral County Sheriff’s Department at approximately 9:27 a.m. and reported that he thought his wife, Nanette Hansen, was dying or dead from being kicked by a horse. Chris Hansen and his son, Scott Michael Abe, were present with Nanette in the Hansen barnyard in DeBorgia, Montana, when the first emergency medical personnel arrived at approximately 9:30 a.m. At that time, Nanette was face up, was not breathing, was cold and pale, had no pulse, her lips were purple, and her hair was matted with mud and manure. Nanette had no jacket on, despite the cold, and her pupils were dilated; her eyes were “glazed over,” and she appeared to have been dead for some period of time.

¶7 Nanette was transported to the Mineral Community Hospital and officially pronounced dead at approximately 11:45 a.m. by the emergency room physician. Technically, however, she was dead on arrival with no signs of life. Based upon his observation and those of emergency medical personnel, the emergency room physician felt Nanette was dead by the time emergency medical personnel arrived in DeBorgia.

¶8 Chris Hansen and Nanette Hansen had been married prior to moving to Montana in 1991, divorced, and remarried in 1994. Chris Hansen was fifty-two years old and Nanette was thirty-four years old at the time of her death. The couple owned twenty acres of land in a rural setting, on which they built a house and a barn. Chris Hansen was diagnosed with multiple sclerosis in 1993 and had difficulties with his vision and balance, and could barely walk. However, witnesses testified he had previously abused Nanette.

¶9 In the past, Chris had raped Nanette at gunpoint, beat her, and, at one point, poured kerosene on her and threatened to light it. Nanette refused to leave Chris because she felt that, due to his disability, he needed her.

¶ 10 The defendant, Scott Michael Abe, twenty-nine years old at the time of Nanette’s death, had recently rejoined his father after twenty-five years with no contact. Abe visited his father on vacation in 1992 and soon thereafter moved in with Chris, Nanette, and Chris’s mother in DeBorgia. Abe later lived in a rented trailer two-to-three miles from the Hansen property, within a five-minute drive.

¶ 11 Abe was open about his dislike of his stepmother. A co-worker of Abe testified that Abe told her that he despised Nanette for interfering with his and his father’s relationship. On more than one occasion, Abe referred to Nanette in derogatory and vulgar terms and used profanity and expletives to describe her to others. In relation to Nanette, Abe told one friend that “he couldn’t take it anymore,” and he had had a “nervous breakdown.” Abe told a co-worker that he hated Nanette for controlling his father. Abe told the same friend that he was worried that if anything happened to Chris he would not get his share of the twenty acres of land.

¶12 Abe told his closest friend, Jerry Parrick, on at least three occasions, that he had offered to kill Nanette for his father. Abe explained that he would wait until Nanette came home drunk and passed out on the couch, he would hit her with a board that had a horseshoe nailed to it, and then take her down to the barnyard and make it look like a horse accident.

¶13 Mineral County Sheriff Mickey O’Brien, with the assistance of other officers, executed search warrants on December 6,1995, on the residences and vehicles of both Abe and Chris Hansen. They seized two homemade weapons (“saps”) from Abe’s car. Later, they received two additional saps made by Abe. One came from Abe’s friend, Helen Johnson. Johnson testified at trial that Abe had shown her how to use the sap on a person’s temple to incapacitate a person. On December 6, 1995, O’Brien also seized a pair of size eleven Polar Sorel winter boots from Abe’s residence, and sent them to the State Crime Lab.

¶14 State Medical Examiner Gary Dale, M.D., performed an autopsy on Nanette on November 29, 1995. Dr. Dale found multiple traumatic injuries on her head, neck, upper front, chest, back, arms, legs, and face. Dr. Dale carefully photographed these bruises and marks, and at trial distinguished them from common artifacts of emergency medical efforts. Dr. Dale testified that the bruises on Nanette’s arms and legs were consistent with grip marks. Three of Nanette’s injuries were of particular note to Dr. Dale:

¶15 1. A two-inch bruise in her left temple area extending one inch past her ear;

¶16 2. A two-inch bruise, described as a “pattern injury,” onher scalp below the previous bruise; and

¶17 3. A bruise with abrasion and laceration, also described as a “pattern injury,” on her collarbone.

¶ 18 According to Dale, none of the injures to N anette’s head were severe enough to have caused her death, and they were inconsistent with injury by a horse. Dr. Dale actually traveled to the crime scene in DeBorgia, but found nothing in the barn area consistent with the “pattern injuries.” He felt the “pattern injury” on the back of her head was most likely a footwear print made by a stomp.

¶19 Dr. Dale compared the blunt force weapons (“saps”), made by Abe, to the wound on Nanette’s temple area. He testified that any one of the saps, or one like them, could have made a similar injury. All of the bruises were made less than six hours before Nanette’s death, with the exception of an abrasion and bruise to the left of her nose and one on her knee.

¶20 Dr. Dale’s internal examination revealed the cause of death: asphyxiation by plugging of Nanette’s lung airways with mud and mud-like debris. Dr. Dale was not able to ascertain how many people inflicted Nanette’s injuries. His opinion was that Nanette was forced face down in the muddy soil and held there until she died. He felt it was possible that the blow to Nanette’s temple rendered her unconscious and that she laid in the mud and suffocated. Dr. Dale felt, based upon his findings, that the time of death was most probably about 9:30 a.m., around the time of the call to the sheriff’s office.

¶21 Forensic scientist Deborah Hewitt of the State Crime Lab is an expert in fingerprint and other impression evidence. Hewitt examined Dr. Dale’s photographs of the “pattern injury” on Nanette’s scalp and compared it to the Polar Sorel winter boots seized from Abe’s residence. Hewitt testified at trial that the scalp pattern injury was similar in element, size, and tread design to the boots seized from Abe. Like Dr. Dale, Hewitt traveled to the Hansen barnyard crime scene to see if she could find any item to explain the pattern injuries on Nanette’s body. She was unsuccessful.

¶22 The Mineral County Attorney charged Abe and Chris Hansen with deliberate homicide in a single criminal information filed on February 26, 1996. After Chris Hansen moved to disqualify Judge Harkin of Department 4, the two cases were severed and Judge McLean of Department No. 1 heard Hansen’s case, while Abe’s case remained with Judge Harkin. Each case thereafter proceeded with a separate cause number.

¶23 On August 23,1996, the State filed a motion for leave to amend Abe’s information to formally include an alternative charge of deliberate homicide by accountability. On the same date, the District Court granted the State’s motion for leave and arraigned Abe on the amended information.

¶24 Abe filed a motion to change venue on August 21,1996. The District Court denied the motion on September 19,1996.

¶25 On September 12,1996, Abe filed a motion to suppress the Polar Sorel winter boots seized at his residence on December 6,1995. The District Court denied that motion on October 10,1996.

¶26 On October 24,1996, a jury convicted Abe of deliberate homicide by accountability. He was sentenced to a term of sixty years in the Montana State Prison and given credit for time served to that date.

ISSUE 1

¶27 Did the District Court err when it granted the State’s motion for leave to file an amended information?

¶28 Whether to allow the amendment of an information is left to the discretion of the trial court. See State v. Tropf (1975), 166 Mont. 79, 88, 530 P.2d 1158, 1163. We review discretionary trial court rulings to determine whether there has been an abuse of discretion. See May v. First Nat’l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386, 388. In Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 125, we held that “[t]he standard of abuse of discretion is applied to discretionary rulings, such as trial administration issues, post-trial motions and similar rulings.” (Citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603-04). An information may be amended as to substance or form pursuant to § 46-11-205, MCA:

(1) The court may allow an information to be amended in matters of substance at any time, but not less than 5 days before trial, provided that a motion is filed in a timely manner, states the nature of the proposed amendment, and is accompanied by an affidavit stating facts that show the existence of probable cause to support the charge as amended. A copy of the proposed amended information must be included with the motion to amend the information.
(2) If the court grants leave to amend the information, the defendant must be arraigned on the amended information without unreasonable delay and must be given a reasonable period of time to prepare for trial on the amended information.
(3) The court may permit an information to be amended as to form at any time before a verdict or finding is issued if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced.

(Emphasis added.)

¶29 Abe alleges that when the District Court allowed the State to amend its original motion from a charge of deliberate homicide to deliberate homicide by accountability, it effectively allowed the State to alter the charge against Abe to fit the proof. Abe cites Johnson v. United States (D.C. App. 1992), 613 A.2d 1381, for the proposition that one of the protections provided to the accused by a properly drafted information is that it “protect[s] against oppressive actions of the prosecutor or a court, which may alter the charge to fit the proof.” See Johnson, 613 A.2d at 1384. Abe maintains that the State had insufficient evidence to convict him of deliberate homicide, and that he had relied on the original information by planning an appropriate defense based on the charge of deliberate homicide. Abe argues that the District Court erred when it allowed the State six months to discover that it had incorrectly charged him and then amend the information to conform the charge to the evidence. Abe contends that the State should not have been allowed to pursue a “new” theory without an allegation of facts in the prosecutor’s supporting affidavit which differed from those alleged in support of the original information. We disagree.

¶30 One of the Montana Legislature’s purposes for enacting criminal statutes is “to give fair warning of the nature of the conduct declared to constitute an offense.” State v. Tower (1994), 267 Mont. 63, 66, 881 P.2d 1317, 1319 (citing § 45-l-102(c), MCA). Montana’s accountability statute provides that “[a] person is responsible for conduct which is an element of an offense if the conduct is either that of the person himself or that of another and he is legally accountable for such conduct as provided in 45-2-302, or both.” Section 45-2-301, MCA. Section 45-2-302(3), MCA, provides, in part, that a person is legally accountable for the conduct of another when “either before or during the commission of an offense with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the offense.”

¶31 We have held, pursuant to § 45-l-102(c), MCA, that the theory of accountability need not be included in the information. See Tower, 267 Mont. at 67, 881 P.2d at 1320. In Tower, we held that “a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime; distinctions between what used to be referred to as the ‘principal’ and ‘accessory before the fact’ have largely been abandoned.” Tower, 267 Mont. at 67, 881 P.2d at 1320. Criminal accountability is not considered a substantive separate offense, but merely a conduit by which to find a person criminally liable for the acts of another. See Tower, 267 Mont. at 67-68, 881 P.2d at 1320.

¶32 Section 46-11-401(1), MCA, requires that a charging document give a

plain, concise, and definite statement of the offense charged, including the name of the offense, whether the offense is a misdemeanor or felony, the name of the person charged, and the time and place of the offense as definitely as can be determined. The charge must state for each count the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated.

In this case, the original information alleged that Abe

committ[ed] the crime of deliberate homicide, a felony, in violation of M.C.A. section 45-5-102 ... [o]n the morning of Tuesday, November 28,1995 upon land located near DeBorgia in Mineral County, Montana and known as Waterhole Tracts No. 7 and 8 ... [by] purposely or knowingly caus[ing] the death of Nanette Hansen, a human being, by asphyxiating her through suffocation.

We have held that “no other facts need be alleged in any indictment or information against... an accessory, than are required in an indictment or information against his principal.” State v. Zadick (1966), 148 Mont. 296, 300, 419 P.2d 749, 751. Pursuant to our decisions in Tower and Zadick, the original information filed by the State against Abe was sufficient to duly advise him of the nature and the cause of the accusation against him, even without referring to guilt by accountability. The amended information gave Abe more notice of the State’s theory of guilt than was required by our previous decisions. Therefore, we conclude that he was not prejudiced by the amendment, and the District Court did not abuse its discretion when it allowed the amendment.

ISSUE 2

¶33 Did the District Court err when it denied Abe’s motion for change of venue?

¶34 Abe contends that he was denied a fair trial because the court denied his motion for a change of venue despite the local publicity generated by his trial. With regard to a change of venue, we have stated:

[A]n accused is entitled to a change of venue when it appears there are reasonable grounds to believe that the prejudice alleged actually exists and that by reason of the prejudice there is a reasonable apprehension that the accused cannot receive a fair and impartial trial.

State v. Pease (1987), 227 Mont. 424, 432, 740 P.2d 659, 664. A district court’s decision to deny a motion for change of venue is reviewed for an abuse of discretion. See Pease, 227 Mont. at 433, 740 P.2d at 664.

¶35 We have held that when prejudicial pretrial publicity is alleged, the publicity must be inflammatory and create a reasonable apprehension that a fair trial is not possible before the motion is granted. See Pease, 227 Mont. at 433, 740 P.2d at 664. A defendant seeking a change of venue on the basis of prejudicial pretrial publicity must prove two elements: (1) that the news reports were inflammatory; and (2) that the news reports actually inflamed the prejudice of the community to an extent that a reasonable possibility exists that the defendant may not receive a fair trial. See State v. Moore (1994), 268 Mont. 20, 52, 885 P.2d 457, 477, overruled on other grounds by State v. Gollehon (1995), 274 Mont. 116, 122, 906 P.2d 697, 701. Inflammatory publicity is characterized by editorializing on the part of the media, or any calculated attempt to prejudice public opinion against a defendant, or to destroy the fairness of the pool from which a defendant’s prospective jurors would be drawn. See State v. Nichols (1987), 225 Mont. 438, 444, 734 P.2d 170, 173.

¶36 Abe contends that two specific articles were particularly prejudicial: one from the Idaho News Observer (Wallace, Idaho) entitled ‘(Murder Most Foul”; and another from the Spokesman-Review (Spokane, Washington] entitled “Death Plot Laughed Off.” The remainder of the articles, all from the Missoulian (Missoula, Montana) and the Valley Press/Mineral Independent (Superior, Montana), Abe describes as non-inflammatory but cites them as evidence of wide media interest in his high profile case.

¶37 Abe maintains that the articles were particularly prejudicial due to the small number of people in the community where the murder occurred, and their close-knit relationships. According to Abe, a fair trial was not possible in Mineral County because the publication of the articles added fuel to local discussions of the case and increased the prejudice against him that was already widespread in the community.

¶38 The District Court took into consideration the following demographic information for Mineral County when it considered Abe’s motion for change of venue. As of 1995, the estimated population of Mineral County was 3626, of which approximately 70.4 percent, or 2334 people, were of voting age. Of the total population of Mineral County, only 8 percent, or 292 people, resided in and around the area known as the “West End,” where Nanette Hansen lived and was killed. It is this small portion of the jury pool that Abe claims was tainted by pretrial publicity. Ninety-two percent of the population of Mineral County, however, is not part of the community in which Nanette Hansen lived and, therefore, presumably was not involved in the local discussions Abe contends were fueled by the pretrial publicity.

¶39 Furthermore, the following circulation figures applied to the papers in question in Mineral County as a whole:

1. Spokesman-Review 19 daily papers mailed

2. Idaho News Observer 60-75 daily papers sold in stores, 10-15 mailed

3. Missoulian 641 daily papers mailed, 800 Sunday

4. Valley Press/Mineral Independent 830 weekly papers mailed Of these four papers, only the Spokesman-Review and the Idaho News Observer contained prejudicial and inflammatory publicity, according to Abe. The total circulation of these two papers was to approximately 109 households in a county of 3626 people.

¶40 On the jury panel itself, only six out of seventy-eight potential jurors knew about facts of the case, and their knowledge was from word of mouth — not the media.

¶41 We conclude that even if the publications were inflammatory, they were not wide-spread enough in the community to generate a general belief of Abe’s guilt throughout the jury pool, and that the community as a whole (Mineral County) could not have been affected to the extent that a reasonable possibility exists that Abe did not receive a fair trial.

¶42 We therefore conclude that the District Court did not err when it denied Abe’s motion for change of venue.

ISSUE 3

¶43 Did the District Court err when it denied Abe’s motion to exclude from evidence the Polar Sorel winter boots that were seized from Abe’s residence?

¶44 The standard of review for evidentiary rulings is whether the district court abused its discretion. See State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. The determination of whether evidence is relevant and admissible is left to the sound discretion of the trial judge and will not be overturned absent a showing of abuse of discretion. See Gollehon, 262 Mont. at 301, 864 P.2d at 1263; see also State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063; State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380; State v. Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054.

¶45 At trial, the State Medical Examiner told the jury that Nanette Hansen had a four-inch long hemorrhage on her scalp and the mid-back of her head. He testified that this was a patterned injury consistent with being struck by something, or being pushed against something, that had a pattern. He concluded that if the injury to her head was caused by a foot, it would have been caused by a stomp.

¶46 The State’s forensic expert testified that the pattern injury on the back of Nanette’s head was similar in element, size, and tread design to the pair of Polar Sorel winter boots that were seized from Abe’s residence. The boots, therefore, played an important part in the State’s case and were material to Abe’s conviction.

¶47 Abe contends that because of a procedural error on the part of the investigating officers, the District Court erred when it did not suppress evidence of the boots.

¶48 On December 6, 1995, Mineral County Sheriff Mickey F. O’Brien executed a search warrant at Abe’s residence with the assistance of other peace officers. O’Brien took custody of the property seized and gave Abe his receipt for the property. Following the search, Montana Criminal Investigation Bureau agent Mark J. Brady produced an official report of the search in which he stated, “[a]t the completion of the searches all items of evidence seized during the searches were taken into custody by O’BRIEN.” Brady’s official report then lists ten items seized from Abe’s residence and Abe’s signature, under which is a handwritten notation that reads:

12/7/95 11. 1 pair Polar Sorrel [sic] winter boots size 11 (Boots seized during the time of search but did not account for it at the time receipt was signed.)
Agent Mark Brady

¶49 Abe contends that because he was present during the search and signed a receipt which listed only ten items, and only later an eleventh item, the receipt for the eleventh item was not properly “left” with or “give[n]” to Abe. He also contends that the receipt is improper because it contains Brady’s signature and not that of O’Brien, the officer to whom the warrant was addressed. According to Abe, both alleged errors are contrary to the requirements of § 46-5-227, MCA, which requires:

Service of a search warrant is made by exhibiting the original warrant or a duplicate original warrant at the place or to the person to be searched. The officer taking property under the warrant shall give to the person from whom or from whose premises the property is taken a copy of the search warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken. Failure to leave a copy and receipt may not render the property seized inadmissible at trial.

(Emphasis added.)

¶5 0 Abe claims that because he was present during the execution of the search warrant, O’Brien was required, pursuant to the plain language of § 46-5-227, MCA, to give him a copy of the warrant and a receipt for the property seized. Although O’Brien eventually mailed the receipt for the boots to Abe, Abe argues that because mailing is not one of the options mentioned in § 46-5-227, MCA, it did not cure the original error. Because O’Brien gave Abe a receipt for only the first ten items and not for the boots, Abe maintains that O’Brien did not comply with § 46-5-227, MCA, and, therefore, the boots should have been excluded as inadmissible evidence.

¶51 Abe’s second assignment of error with regard to the corrected receipt is that the addition of the eleventh item was improperly signed by Brady and not O’Brien, the officer to whom the warrant was addressed and who executed the warrant. Abe suggests that this variation raises the question about whether law enforcement officers in fact seized the boots at the time they executed the search warrant, or whether they seized the boots in some other way at some other time and simply added them to the receipt later. Abe suggests that this would explain why Brady waited more than a month to provide Abe with a copy of the corrected receipt. Abe also questions Brady’s veracity and actions regarding the boots because, according to Abe, since then Brady had been suspended and otherwise sanctioned because of official wrongdoing.

¶52 The State maintains that the District Court did not err when it admitted the boots as evidence and found that the temporary error on the receipt for items seized did not render invalid the seizure of the boots. The State contends that the error, which was detected and corrected within twenty-four hours, did not violate Abe’s substantive Fourth Amendment rights, and that even if the literal requirements of the statute were violated, the statue, by its terms, does not permit suppression of evidence that was otherwise constitutionally seized. In addition to the instruction given in § 46-5-227, MCA, that “[fjailure to leave a copy and receipt may not render the property seized inadmissable at trial” (emphasis added), the Commission Comments to § 46-5-227, MCA, state that:

This provision provides for specific directions as to the manner in which the search is made and specifies that failure to give a receipt is not a defect which will render the evidence inadmissible. The intent of this provision is to provide for adequate notice to the possessor of the goods or premises by requiring a copy to be left with him or at the place where the articles or things are seized.

Furthermore, § 46-1-103(3), MCA, provides that “[a]ny irregularity in a proceeding specified by [the criminal procedure] title that does not affect the substantial rights of the accused must be disregarded.” Specifically, with regard to search and seizure, § 46-5-103(l)(c), MCA, provides that “[a] search and seizure, whether with or without a warrant, may not be held to be illegal if:... any irregularity in the proceedings has no effect on the substantial rights of the accused.” Because the purpose of § 46-5-227, MCA, is to ensure a defendant’s notice of what items were removed during a search, we conclude that Abe was not prejudiced when the notice of the boots, was not “given” to him until after notice of the first ten items. An error in the manner in which notice is given is an irregularity in the proceedings that does not affect the substantial rights of the accused and, therefore, is not reversible error. The corrected receipt effectively gave Abe notice of the items seized from his home, including the boots.

¶53 Neither did Brady’s signature on the corrected receipt, instead of O’Brien’s, affect Abe’s substantial rights. Nowhere in § 46-5-227, MCA, is there a requirement that the receipt be signed by the officer to whom the warrant was addressed. In fact, the statue does not specifically require that a receipt have any signature at all. Accordingly, we conclude that the District Court did not err when it denied Abe’s motion to suppress the Polar Sorel winter boots that were seized from Abe’s residence.

¶54 The judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES REGNIER, NELSON and LEAPHART concur.


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. ROGER M. THIBERT, Defendant and Respondent.
    No. 97-195.
    Submitted on Briefs June 18, 1998.
    Decided August 25, 1998.
    1998 MT 207.
    55 St.Rep. 883.
    290 Mont. 408.
    965 P.2d 251.

      For Appellant: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Ass’t Attorney General, Helena; Robert L. “Dusty” Deschamps HI, Missoula County Attorney, Betty Wing, Deputy Missoula County Attorney, Missoula.
    For Respondent: Paul T. Ryan, Attorney at Law, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶1 The State of Montana (State) appeals from the order of the Fourth Judicial District Court, Missoula County, reducing the charge against Roger M. Thibert (Thibert) from driving under the influence of alcohol (DUI), sixth offense, a felony, to DUI, first offense, a misdemeanor. We reverse and remand for further proceedings.

¶2 The issue on appeal is whether the District Court erred in concluding that all of Thibert’s prior DUI convictions had been expunged from his record pursuant to the pre-1989 version of § 61-8-714, MCA, and, on that basis, in reducing the charge against him to misdemeanor first offense DUI.

BACKGROUND

¶3 Thibert was arrested on May 29,1996, and subsequently charged by information in the District Court with sixth offense DUI, a felony, in violation of § 61-8-401, MCA (1995), and leaving the scene of an accident, a misdemeanor, in violation of § 61-7-107, MCA (1995). Thibert’s driving record contained five prior DUI convictions: February 8, 1985; July 17, 1985; July 7, 1987; May 11, 1988; and July 22, 1988. Thibert entered not guilty pleas to both charges and then filed two motions to dismiss the DUI charge, one asserting a double jeopardy argument and the other asserting violations of the ex post facto law provisions of the Montana and United States Constitutions. The District Court denied both motions.

¶4 Thibert later filed a third motion to dismiss, arguing that all five of his prior DUI convictions had been expunged by operation of the pre-1989 version of § 61-8-714, MCA, and, as a result, he could not be charged with felony DUI for a fourth or subsequent offense. The District Court granted the motion to dismiss. It concluded that, because Thibert had maintained a clean driving record for five years following his fifth DUI conviction, all five of the previous DUI convictions had been expunged and, therefore, the current DUI charge must be considered a first offense. Consequently, the District Court reduced the felony DUI charge to misdemeanor first offense DUI. The State appealed.

STANDARD OF REVIEW

¶5 A district court’s grant or denial of a motion to dismiss is a question of law which we review de novo. State v. Reams (1997), 284 Mont. 448, 450, 945 P.2d 52, 54 (citation omitted). The parties do not dispute the pertinent facts in this case and, as a result, we review only whether the District Court correctly interpreted the law. Reams, 284 Mont. at 450, 945 P.2d at 54.

DISCUSSION

¶6 Did the District Court err in concluding that all of Thibert’s prior DUI convictions had been expunged from his record pursuant to the pre-1989 version of § 61-8-714, MCA, and, on that basis, in reducing the charge against him to misdemeanor first offense DUI?

¶7 In 1995, the Montana Legislature amended § 61-8-714, MCA, by adding a new subsection which provides for a felony sanction for offenders on a fourth or subsequent DUI conviction. Section 61-8-714(4), MCA (1995). In conjunction with this new subsection of the statute, the Legislature amended § 61-8-714(6), MCA (formerly subsection (5)), to provide, in pertinent part, as follows:

An offender is considered to have been previously convicted for the purposes of sentencing if less than 5 years have elapsed between the commission of the present offense and a previous conviction, unless the offense is the offender’s fourth or subsequent offense, in which case all previous convictions must be used for sentencing purposes. If there has not been an additional conviction for an offense under this section for a period of 5 years after a prior conviction under this section, then all records and data relating to the prior conviction are confidential criminal justice information, as defined in 44-5-103, and public access to the information may only be obtained by district court order upon good cause shown.

Between 1981 and 1989, however, § 61-8-714(5), MCA, provided that, if a person convicted under this section had no additional convictions for a period of five years following a prior conviction, that prior conviction would be expunged from the person’s driving record, rather than merely becoming confidential criminal justice information. The result of having a DUI conviction expunged under the pre-1989 version of § 61-8-714(5), MCA, is that the conviction no longer exists and cannot be considered when determining the number of prior convictions a person has under § 61-8-714(6), MCA (1995). State v. Brander (1996), 280 Mont. 148, 155, 930 P.2d 31, 36. In contrast, when a DUI conviction becomes confidential criminal justice information, that conviction may still be considered by a court in calculating penalties for a subsequent DUI conviction. Brander, 280 Mont. at 156, 930 P.2d at 36.

¶8 As stated above, when Thibert was charged with this DUI offense in 1996, he had five prior DUI convictions on his record; two in 1985, one in 1987 and two in 1988. Thibert argued in his third motion to dismiss that, because more than five years elapsed between his last DUI conviction in 1988 and the current DUI charge, all five prior convictions were expunged under § 61-8-714(5), MCA (1987), with the result that the current DUI charge was his first offense under § 61-8-714(6), MCA (1995). The District Court agreed, stating that this Court had “clearly ruled in Brander that all convictions prior to 1989 are expunged under the pre-1989 version of MCA § 61-8-714 if the driver maintains a clean record for five years.” The State contends that the District Court erred in concluding all five of Thibert’s prior DUI convictions had been expunged.

¶9 The State concedes that the District Court correctly determined that the July of 1988 DUI conviction was expunged because more than five years elapsed between that conviction and Thibert’s arrest in May of 1996 without any intervening DUI convictions. It argues, however, that under State v. Beckman (1997), 284 Mont. 459, 944 P.2d 756, Thibert’s four DUI convictions prior to July of 1988 were not expunged because none of those convictions was followed by five years without an additional conviction. We agree.

¶10 We have held that a DUI conviction is not eligible for expungement under the provision contained in § 61-8-714(5), MCA, between 1981 and 1989 unless the conviction is followed directly by a five-year period in which no additional DUI conviction is received. Beckman, 284 Mont. at 466, 944 P.2d at 760 (citing Brander, 280 Mont. at 155-57, 930 P.2d at 35-37); see also State v. Cooney (1997), 284 Mont. 500, 507, 945 P.2d 891, 895. As a result, four of Thibert’s DUI convictions — those occurring in 1985,1987 and May of 1988 — are not eligible for expungement because Thibert was convicted of an additional DUI within five years of each. His conviction in July of 1988 is expunged, however, because there have been no additional DUI convictions on Thibert’s record since that time, a period of more than five years.

¶11 Notwithstanding our holdings in Beckman and Cooney, Thibert argues that, under the language of the pre-1989 statutes, it is not necessary for five years to elapse between each prior conviction for all of his convictions to be expunged. He asserts that the expungement language in the pre-1989 versions of § 61-8-714(5), MCA, is ambiguous because it does not take into account situations where, as here, an offender has more than one prior DUI conviction. He then argues that this ambiguity has been addressed and resolved in his favor in an opinion of the Attorney General of the State of Montana (AG). See 38 Op. Att’y Gen. 222 (1980). His reliance on the AG’s opinion is misplaced. ¶12 The AG’s opinion on which Thibert relies was issued in 1980. The expungement provision at issue in the present case was not added to the Montana Code Annotated until 1981. Thus, the AG’s opinion interpreting the language of § 61-8-714, MCA, as it existed in 1980, did not interpret the expungement provision with which we are concerned in this case. Furthermore, to the extent the referenced AG’s opinion could be read as supporting Thibert’s argument, it clearly has been overruled by our decisions in Beckman and Cooney. See § 2-15-501(7), MCA (AG’s opinions are controlling unless overruled by a district court or this Court). Similarly, the ambiguity which Thibert contends exists in the expungement provision, if it existed at all, has been resolved by our holdings in those cases.

¶13 Although Beckman and Cooney were decided subsequent to the District Court’s order on Thibert’s motion to dismiss, we give retroactive effect to judicial decisions and, as a result, they are applicable to the present case. See State v. Steinmetz, 1998 MT 114, ¶10, 961 P.2d 95, ¶10, 55 St.Rep. 450, ¶10. We conclude, therefore, that Thibert’s DUI convictions in February of 1985, July of 1985, July of 1987 and May of 1988 are not eligible for expungement under § 61-8-714(5), MCA, as that section existed between 1981 and 1989. His DUI conviction in July of 1988, however, is expunged because more than five years elapsed thereafter without an additional conviction. As a result, we further conclude that, at the time Thibert was charged with the DUI offense in 1996, his record contained four prior DUI convictions which, pursuant to §§ 61-8-714(4) and 61-8-714(6), MCA (1995), results in a felony charge for fifth offense DUI. We hold that the District Court erred in concluding that all of Thibert’s prior DUI convictions had been expunged from his record pursuant to the pre-1989 version of §61-8-714, MCA, and, on that basis, in reducing the charge to misdemeanor first offense DUI.

¶14 Reversed and remanded for further proceedings.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, NELSON and REGNIER concur.


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. STEPHEN LEROY COONEY, Defendant and Appellant.
    No. 98-147.
    Submitted on Briefs August 13, 1998.
    Rehearing Denied October 1, 1998.
    Decided August 25, 1998.
    1998 MT 208.
    55 St.Rep. 886.
    290 Mont. 414.
    963 P.2d 1272.

      For Appellant: Terry G. Sehestedt, Attorney at Law, Missoula.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General, Helena; Robert L. Deschamps, III, County Attorney, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

¶1 In proceedings before the Fourth Judicial District Court, Missoula County, Stephen Leroy Cooney (hereinafter Cooney) was committed to the custody of the Director of the Department of Public Health and Human Services (hereinafter DPHHS) pursuant to the provisions of the Mental Competency Chapter of the Montana Rules of Criminal Procedure. Cooney appeals. We affirm.

ISSUE

¶2 The issue before the Court is whether the District Court erred in committing Cooney to the continuing custody of the Director of the DPHHS under the provisions of § 46-14-301(3) and (4), MCA.

BACKGROUND

¶3 On May 29,1996, Cooney was charged before the Fourth Judicial District Court, Missoula County, with felony stalking, a violation of § 45-5-220, MCA. Cooney was also charged with violations of protective orders issued by the District Court in Powell County and the county court of Denver County, Colorado, which had resulted from a misdemeanor stalking conviction the year before.

¶4 Cooney’s history of stalking isa protracted one. His pursuit of the woman who was the subject of the 1996 felony charge began in 1989 and continued even after Cooney had served a one-year sentence in county jail on misdemeanor stalking charges. The record also reflects that he is known to have pursued at least three other women at other times.

¶5 Expert psychiatric testimony offered at the dispositional hearing indicated that Cooney’s pattern of behavior stems from an erotomanic type delusional disorder, a mental disease in which the afflicted person becomes obsessed with delusional beliefs that another person is in love with him. This disorder causes intermittent misperceptions of reality related to the delusional beliefs, which in Cooney’s case include a conviction that his victim is infatuated with him, that she has gone to extraordinary lengths to initiate and maintain contact with him, and that she wants to marry him. The prognosis for successfully treating this kind of delusional disorder is, unfortunately, very poor. It is especially difficult to eradicate the delusional beliefs of individuals who, like Cooney, have maintained them in a stable form over a long period of time.

¶6 At his arraignment for the felony stalking charge, Cooney requested a sixty-day psychiatric evaluation at the Montana State Hospital in Warm Springs, Montana, and this request was granted. Based on a report submitted by the state hospital, the District Court initially found that Cooney was not fit to stand trial and committed him to the custody of the DPHHS. Relying on a subsequent report submitted by the hospital, the District Court later found that Cooney had regained his competency and ordered the proceedings to go forward. Under the terms of a plea agreement, Cooney entered a plea of not guilty by reason of a mental disease or defect, and the District Court again restored him to the custody of the DPHHS pending a review hearing pursuant to § 46-14-301(3), MCA. The District Court held a dispositional hearing on November 3 and 17,1997, and entered an order on January 8,1998, continuing Cooney’s commitment to the Director of the DPHHS for custody, care and treatment.

DISCUSSION

¶7 Did the District Court err in committing Cooney to the continuing custody of the Director of the DPHHS under the provisions of § 46-14-301(3) and (4), MCA?

¶8 Conclusions of law made by the District Court are reviewable de novo. Public Employees’ Ass’n v. Department of Transp., 1998 MT 17, ¶ 8, [287 Mont. 229], 954 P.2d 21, ¶ 8. Findings of fact made by the District Court sitting as the trier of fact are set aside only where they are clearly erroneous. Rule 52(a), M.R.Civ.P.; Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 322, 820 P.2d 1285, 1287. A court’s findings are clearly erroneous if they are not supported by substantial evidence, the court has misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed. State v. Woods (1997), 285 Mont. 46, 53, 945 P.2d 918, 922.

¶9 The District Court’s authority to order Cooney into the custody of the Director of the DPHHS is found in § 46-14-301, MCA, which reads in pertinent part:

(3) A person committed to the custody of the director of the department of public health and human services must have a hearing within 180 days of confinement to determine the person’s present mental condition and whether the person must be discharged or released or whether the commitment may be extended because the person continues to suffer from a mental disease or defect that renders the person a danger to the person or others ... The hearing is a civil proceeding, and the burden is upon the state to prove by clear and convincing evidence that the person may not be safely released because the person continues to suffer from a mental disease or defect that causes the person to present a substantial risk of:
(a) serious bodily injury or death to the person or others;
(b) an immediate threat of physical injury to the person or others; or
(c) substantial property damage.
(4) According to the determination of the court upon the hearing, the person must be discharged or released on conditions the court determines to be necessary or must be committed to the custody of the director of the department of public health and human services to be placed in an appropriate mental health facility for custody, care, and treatment.

“Serious bodily injury” as that term is used in § 46-14-301(3)(a), MCA, is defined in § 45-2-101(64)(b), MCA, as including “serious mental illness or impairment.”

¶10 In its January 8, 1998 Order, the District Court found that Cooney continued to suffer from a mental disease or defect. The court also found that, if released, Cooney was capable of acting upon his delusional beliefs, creating a substantial risk of serious bodily injury to his victim, including bodily injury in the form of serious mental illness or impairment as set forth in § 45-2-101(64)(b), MCA. Cooney does not contest the District Court’s findings that he continues to suffer from a mental disease or defect but does contest the District Court’s finding that his condition would present a substantial risk of bodily injury to his victim if he were discharged at this time.

¶11 It is Cooney’s contention that while the evidence in the record indicates Cooney’s past behavior may have caused his victim emotional anguish or emotional trauma, the State has not met its rather substantial burden of showing by clear and convincing evidence that Cooney’s actions resulted in a diagnosable “serious mental illness” in his victim. Additionally, Cooney argues, the fact that he is likely to continue to engage in his stalking activities upon release is not sufficient to show that his victim is at risk for developing a “serious mental illness” should Cooney resume stalking her.

¶12 Our own review of the record supports a finding that Cooney’s mental condition renders him dangerous and that his release from the state hospital poses a substantial threat of serious bodily injury to the victim he has been pursuing since 1989. The record contains the evaluations and opinions of two psychiatric experts, both of whom concluded that Cooney would almost certainly continue to stalk the object of his delusions if the state’s custody and supervision were terminated. Conditional release on an out-patient basis is not a viable solution because Cooney does not believe he is ill and would not likely continue his therapy and medication outside a structured hospital environment. Cooney’s prior violation of a judicial restraining order within only four months of his release from the county jail on misdemeanor charges evidences the likelihood of his continued pursuit of this woman.

¶13 The record also clearly reflects the effect that such a pursuit would have on Cooney’s intended victim. The testimony of the staff psychiatrist at the state hospital indicates that Cooney’s stalking activities towards this woman, which have lasted over a period of approximately eight years, have already caused her a great deal of emotional anguish related to fears of her own and her family’s safety and may have already resulted in a diagnosable psychiatric condition for her. In an effort to escape Cooney’s attentions, she has resorted to a kind of self-imposed exile and has described her prior encounters with Cooney as terribly frightening and upsetting experiences.

¶14 On these facts, we hold the State has met its burden of demonstrating by clear and convincing evidence that Cooney may not be safely released from the custody of the DPHHS at this time. We therefore conclude that the District Court did not err in committing Cooney to the continuing custody of the Director of the DPHHS under the provisions of § 46-14-301(3) and (4), MCA.

¶15 Affirmed.

JUSTICES TRIEWEILER, HUNT, LEAPHART and REGNIER concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KEVIN SCHMALZ, Defendant and Appellant.
    No. 97-245.
    Submitted on Briefs June 11, 1998.
    Decided August 25, 1998.
    1998 MT 210.
    55 St.Rep. 889.
    290 Mont. 420.
    964 P.2d 763.

      For Appellant: Allen Beck, Attorney at Law, Billings.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Micheál S. Wellenstein, Assistant Attorney General, Helena; Dennis Paxinos, County Attorney, Melanie Logan, Deputy County Attorney, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

¶1 A jury in the Thirteenth Judicial District Court, Yellowstone County, convicted Kevin Schmalz of the attempted deliberate homicide of his mother. He appeals. We affirm.

¶2 The issues are whether the case should be reversed for abuse of prosecutorial discretion and whether the District Court erred in refusing the defense’s proposed instruction on felony assault.

¶3 The State of Montana filed two counts of attempted deliberate homicide against seventeen-year old Kevin Schmalz as a result of a family dispute which occurred on February 3,1996. At approximately 11:30 that evening, Schmalz and his mother had an argument about items which she had thrown away when she cleaned his room earlier that day. Schmalz’s father went downstairs to the family room where they were arguing and told them both to quiet down and go to bed. He grabbed Schmalz by the back of the neck and pushed him toward his bedroom. Schmalz ran into his room, pulled out his .22 caliber bolt-action rifle, and came back out shooting from the hip.

¶4 Schmalz’s first shot grazed his mother’s cheek. He came further into the family room and shot her in the chest, after which she stood behind a reclining chair yelling at him to give her the gun. Schmalz’s father rushed at Schmalz, and Schmalz shot him in the chest. Schmalz and his parents then wrestled for control of the gun, during which the father tried to punch Schmalz but accidentally hit the mother instead. Schmalz became upset, said, “You hit mom,” dropped the rifle, then ran out of the house.

¶5 Schmalz’s parents called 911. Schmalz was arrested whenhe returned to the home while police and paramedics were there assisting his parents. Schmalz’s mother was treated at the hospital for a superficial wound on her right cheek and two broken ribs and a bruised lung from the shot to her chest. Schmalz’s father was hospitalized as a result of the gunshot wound to his chest.

¶6 Schmalz was charged with two counts of attempted deliberate homicide. Just before trial, he pled guilty to aggravated assault against his father, and the charge of attempted deliberate homicide of the father was not pursued at trial. After a three-day trial, the jury found Schmalz guilty of the attempted deliberate homicide of his mother.

Issue 1

¶7 Should the case be reversed for abuse of prosecutorial discretion?

¶8 Under this issue, Schmalz raises several claims. He alleges that the prosecutor improperly refused to charge the case as aggravated assault upon his mother; that the prosecution failed to introduce to the jury the full testimony of the parent/victims; and that in closing arguments, the prosecutor argued a theory to the jury which was not supported by the victims’ testimony.

¶9 We first consider the matter of failure to charge aggravated assault rather than attempted deliberate homicide. Where the facts of a case support a possible charge of more than one crime, the crime to be charged is a matter of prosecutorial discretion. State v. Booke (1978), 178 Mont. 225, 230, 583 P.2d 405, 408. Schmalz admits that the facts of this case support a possible charge of attempted deliberate homicide of his mother. He has not established abuse of the prosecutor’s discretion as to which crime to charge, which he admits is broad.

¶10 Schmalz does not elaborate upon his claim that the prosecution failed to present the full testimony of the parent/victims, but it appears he is referring to his parents’ wishes that this case not be brought to trial. Schmalz has shown no reason why defense counsel could not have elicited such testimony on cross-examination of the parents, for what it was worth. At any rate, Schmalz argues that this disregard by the prosecution of the victims’ wishes should be considered in conjunction with his claims concerning the prosecution’s closing argument.

¶11 The district court should be given the first opportunity to correct any trial errors. State v. Rogers (1993), 257 Mont. 413, 418-19, 849 P.2d 1028, 1031-32. In this case, as the State points out, the defense failed to make any objection to the prosecutor’s comments during closing argument.

¶12 Section 46-20-104, MCA, provides in pertinent part:

(2) Upon appeal from a judgment, the court may review the verdict or decision and any alleged error objected to which involves the merits or necessarily affects the judgment. Failure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2).

Under the above statute, this Court is precluded from considering an alleged error unless a timely objection was made or unless the following statutory criteria are met:

(2) Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. A claim alleging an error affecting jurisdictional or constitutional rights may not be noticed on appeal if the alleged error was not objected to as provided in 46-20-104, unless the convicted person establishes that the error was prejudicial as to the convicted person’s guilt or punishment and that:
(a) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the convicted person or the convicted person’s attorney that prevented the claim from being raised and disposed of; or
(c) material and controlling facts upon which the claim is predicated were not known to the convicted person or the convicted person’s attorney and could not have been ascertained by the exercise of reasonable diligence.

Section 46-20-701(2), MCA.

¶13 Because the defense did not object to the prosecutor’s closing arguments, this claim has not been properly preserved for appeal. Nor has Schmalz demonstrated that he can satisfy any of the requirements of § 46-20-701(2), MCA. Therefore, we conclude that he has waived the right to have this Court consider his claims regarding the prosecutor’s closing argument.

¶14 We hold that Schmalz has failed to establish any reason why this case should be reversed for prosecutorial misconduct.

Issue 2

¶15 Did the District Court err by refusing the instruction requested by the defense on felony assault?

¶16 At the close of the evidence, the District Court rejected Schmalz’s request for a jury instruction on a lesser included offense of felony assault, and instead instructed the jury on the lesser included offense of aggravated assault. The difference between aggravated assault and felony assault, for purposes of this case, is whether Schmalz’s mother suffered serious bodily injury (aggravated assault), or bodily injury by a weapon (felony assault). Section 45-5-202, MCA. Both offenses require a mental state of purposely or knowingly.

¶ 17 Schmalz points out that one doctor testified that his mother was not at substantial risk of death. He argues that she therefore did not suffer serious bodily injury.

¶ 18 That the victim was at substantial risk of death is one definition of serious bodily injury under § 45-2-101(64), MCA. Another definition of serious bodily injury under that statute is bodily injury which “at the time of injury, can reasonably be expected to result in ... protracted loss or impairment of the function or process of any bodily member or organ.” Section 45-2-101(64)(a)(iii), MCA.

¶19 In deciding to instruct on aggravated assault, the District Court reasoned that Schmalz’s mother suffered serious bodily injury from the second bullet, which grazed her lung, inches from her heart. The paramedic who initially treated Schmalz’s mother testified that it sounded like her lung had been punctured. The court deemed this an injury which was or could be expected to cause protracted loss of the function or process of a bodily organ. There was no contrary testimony, although, fortunately, the mother’s injuries proved not to be as serious as they were initially believed to be.

¶20 As further support for his argument that the jury should have been instructed on felony assault, Schmalz points out that his mother testified that the first bullet hit her before he was out of his bedroom and that she believed he did not shoot at her the second time she was hit, but that she instead stepped into the path of the bullet. Schmalz asserts that this raises the question of whether he possessed the necessary state of mind to be convicted of attempted deliberate homicide — the purpose to cause the death of another human being and action toward purposely or knowingly causing the death of another human being. Sections 45-4-103 and 45-5-102, MCA; State v. Sellner (1997), 286 Mont. 397, 400, 951 P.2d 996, 998.

¶21 When a criminal defendant is charged with attempted deliberate homicide or deliberate homicide, a lesser included offense instruction on assault must be given if there is a “basis from which a jury could rationally conclude that the defendant is guilty of the lesser, but not the greater offense.” State v. Castle (1997), 285 Mont. 363, 369, 948 P.2d 688, 691. In Castle, although the defendant had punched the victim in the jaw, there was evidence that injuries inflicted by other persons, including stab wounds and severe blunt force injuries to the head, had caused the victim’s death.

¶22 In this case, unlike in Castle, there was no evidence that any person other than Schmalz caused the victim’s injuries. Also, here, unlike in Castle, there was no danger that the jury possibly convicted Schmalz of attempted deliberate homicide rather than let his admitted crime go unpunished, because the jury was instructed on the lesser included offense of aggravated assault.

¶23 Schmalz cites the common-law rule that the court must instruct upon every issue or theory having support in the evidence, citing, inter alia, State v. Gopher (1981), 194 Mont. 227, 633 P.2d 1195. However, we have held that an instruction on a lesser included offense of assault has no support in the evidence and is not necessary when the defense’s evidence, if believed, would require an acquittal. See Sellner and State v. Howell, 1998 MT 20, ¶ 34, [287 Mont. 268, ¶ 34], 954 P.2d 1102, ¶ 34. The testimony of Schmalz’s mother, if believed, would support an acquittal, not a conviction of felony assault. According to her testimony, Schmalz had no intent to shoot her at all. Like in Sellner and Howell, if the jury believed the testimony upon which the defense relies, an instruction on the lesser included offense would have no support in the evidence because the necessary intent would be lacking. ¶24 We hold that the District Court did not err in refusing Schmalz’s request for an instruction on felony assault.

¶25 Affirmed.

JUSTICES NELSON, TRIEWEILER, HUNT and REGNIER concur.


text:
    IN RE THE CUSTODY OF N.G.H., a Minor Child. DOUGLAS A. RILEY, Petitioner and Respondent, v. KATHERINE M. HUBBARD, Respondent and Appellant.
    No. 98-182.
    Submitted on Briefs July 2, 1998.
    Decided August 25, 1998.
    1998 MT 212.
    55 St.Rep. 892.
    290 Mont. 426.
    963 P.2d 1275.

      For Appellant: Bryan Norcross, Attorney at Law, Lincoln.
    For Respondent: Terry G. Sehestedt, Attorney at Law, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

¶1 In the Fourth Judicial District Court, Missoula County, Douglas A. Riley (Douglas) and Katherine M. Hubbard (Katherine) were awarded joint legal custody of their minor daughter; physical and residential custody were awarded to Douglas. Katherine appeals. We affirm.

ISSUES

¶2 1. Did the District Court err in concluding that it possessed subject matter jurisdiction to determine the custody of a minor child under § 40-4-211, MCA?

¶3 2. Did the District Court infringe upon Katherine’s constitutional right to travel by assuming jurisdiction over this child custody dispute?

BACKGROUND

¶4 This cause was initiated by petition filed by Douglas seeking the custody of N.G.H., a female child born to Douglas and Katherine on December 7, 1990, in Missoula, Montana. There has been no prior custody determination for this child, and there are no other custody proceedings pending in any other state.

¶5 From her birth until January 1, 1995, N.G.H. resided in Missoula, Montana, with both of her parents and two twin half-sisters by her mother. Due to a change in employment, Katherine relocated to Alabama sometime in December 1994. The three children joined her shortly thereafter and remained with her in Alabama until May 20,1996. From May 20,1996 to August 14,1996, the three children temporarily returned to Montana and resided with Douglas. On August 14, 1996, Katherine’s mother, acting as Katherine’s agent, assumed physical custody of the children and returned them to Alabama. Douglas filed his petition for custody of N.G.H. on August 19, 1996, in the Fourth Judicial District Court in Missoula County, Montana. Katherine moved to dismiss the action for lack of subject matter jurisdiction on September 6, 1996.

¶6 N.G.H. is a child with specific needs resulting from a rare genetic disorder which affects her motor skills, cognitive abilities and language skills. At the chronological age of six years and six months, N.G.H. was at the equivalent developmental stage of a child of two years and eight months. N.G.H. suffers from an eating disorder which manifests itself in an indifference to food. As of the time of the District Court’s order N.G.H. was not yet toilet trained. Due to her genetic disorder and its attendant mental and physical disabilities, Douglas and Katherine had N.G.H. evaluated by the Shodair Hospital in Helena, Montana, and the Child Developmental Center (CDC) in Missoula, Montana, on various occasions throughout 1991,1992 and 1994. The Shodair Hospital in Helena also performed a follow-up examination of N.G.H. on August 6,1996, just prior to her return to Alabama.

¶7 On September 9,1996, Katherine and the children relocated to Houston, Texas, and N.G.H. remained in Houston with her mother until the close of the 1996/1997 school year pursuant to the terms of a temporary joint custody order entered by the Montana court on January 31,1997. Since June 1,1997, N.G.H. has been residing with her father in Missoula, Montana. Upon the recommendations of the Special Master appointed in this case, the District Court entered a final order on January 21,1998, awarding joint custody to Douglas and Katherine and physical and residential custody of N.G.H. to Douglas.

STANDARD OF REVIEW

¶8 We review the District Court’s findings of fact to determine whether they are clearly erroneous. In re Marriage of Brownell (1993), 263 Mont. 78, 81, 865 P.2d 307, 309. “A court’s findings are clearly erroneous if they are not supported by substantial evidence, the court misapprehends the effect of the evidence, or our review of the record convinces us that a mistake has been committed.” In re Marriage of Shupe (1996), 276 Mont. 409, 416, 916 P.2d 744, 749. Conclusions of law made by the District Court are reviewable de novo. In re Marriage of Kovash (1995), 270 Mont. 517, 521, 893 P.2d 860, 863.

FIRST ISSUE

¶9 Did the District Court err in concluding that it possessed subject matter jurisdiction to determine the custody of a minor child under § 40-4-211, MCA?

¶10 The provisions of the Uniform Child Custody Jurisdiction Act (UCC JA) govern all child custody actions brought before the courts of Montana in which there is potential for jurisdictional conflict between multiple states. See § 40-7-102, MCA; Shupe, 276 Mont. at 415, 916 P.2d at 746-47. The UCCJA incorporates by reference the jurisdictional provisions of § 40-4-211, MCA, to determine whether a court of this state is competent to decide a particular child custody matter. Section 40-7-104, MCA. Section 40-4-211, MCA, lists four alternative grounds upon which the courts of Montana may exercise subject matter jurisdiction, only one of which need apply before jurisdiction may be invoked. Shupe, 276 Mont. at 415, 916 P.2d at 748.

¶11 The relevant portions of the statute read:

(1) A court of this state competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(a) this state:
(i) is the home state of the child at the time of commencement of the proceedings; or
(ii) had been the child’s home state within 6 months before the commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reason and a parent or person acting as parent continues to live in this state; or
(b) it is in the best interest of the child that a court of this state assume jurisdiction because:
(i) the child and his parents or the child and at least one contestant have a significant connection with this state; and
(ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
(c) the child is physically present in this state and:
(i) has been abandoned; or
(ii) it is necessary in an emergency to protect him because he has been subjected to or threatened with mistreatment or abuse or is neglected or dependent; or
(d)(i) no other state has jurisdiction under prerequisites substantially in accordance with subsections (l)(a), (l)(b), or (l)(c) of this section or another state has declined jurisdiction on the ground that this state is the more appropriate forum to determine custody of the child; and
(ii) it is in his best interest that the court assume jurisdiction.

Section 40-4-211, MCA (1995).

¶12 The Montana court properly exercised jurisdiction under § 40-4-211(l)(b), MCA. In its January 31, 1997 Order, the District Court made a finding that both Douglas and his daughter had significant connections with the State of Montana and that there was substantial evidence in this state concerning the present and future care of N.G.H. The District Court based this finding on the fact that both Douglas and N.G.H.’s maternal grandmother resided in the State of Montana and that both the Shodair Hospital in Helena and the CDC in Missoula had previously conducted evaluations and made recommendations concerning N.G.H.’s physical and mental condition related to her genetic disorder.

¶13 The parties do not dispute the District Court’s finding regarding Douglas’ significant connections with the State of Montana. However, Katherine contends that the District Court’s findings regarding N.G.H.’s connections to Montana are clearly erroneous because the evidence showed the child had no personal contact with the State of Montana for the sixteen months immediately preceding the filing of the petition, with the limited exception of a brief period of time between May 20,1996 and August 14,1996; the evaluations performed by the CDC were already two years old at the time Douglas filed his petition; and the Shodair Hospital had had only one additional contact with N.G.H. since her original evaluations were completed in 1994. By comparison, Katherine asserts, N.G.H.’s connections to Alabama at that time were much closer; she was and had been residing in Alabama for the preceding sixteen months, she was enrolled in school there, she was receiving special education and training there, she was under the care of Alabama doctors, and she had developed relationships with people living in Alabama, including Katherine, her twin half-sisters, her great grandparents, neighbors and friends. It is Katherine’s position that the cumulative result of these connections was that all of the evidence concerning N.G.H.’s present and future care, protection, training and personal relationships was located in Alabama at the time Douglas filed his petition for custody.

¶14 We disagree. The fact that N.G.H. may have had strong contacts with Alabama has no bearing on a determination of whether the child nevertheless maintained significant connections to Montana. “Section 40-4-2 ll(l)(b), MCA, does not require that the child’s only significant connection be with Montana in order for a district court to assume jurisdiction. The statute requires only a significant connection.” In re Marriage of Bolton (1984), 212 Mont. 212, 218, 690 P.2d 401, 404. Evidence of significant connections with another state does not equate to a lack of significant connections with this state. Shupe, 276 Mont. at 417, 916 P.2d at 748.

¶15 Likewise, the length of time N.G.H. spent in Montana immediately preceding the filing of the custody petition is not determinative of the issue of whether there is substantial evidence in this state relating to her present and future care, protection, training, and personal relationships. Shupe, 276 Mont. at 417, 916 P.2d at 748. Additional findings by the District Court reflect that the child was born in Montana and lived in this state for four years before being moved to Alabama, had undergone her initial diagnosis and treatment at medical facilities within Montana, and had only recently been seen for a follow-up examination in Helena when the petition was filed. She also has a parent who is a long time resident of the State of Montana and who has maintained contact with the child throughout her life, including personal visits in both Alabama and Montana. These facts are sufficient to support a finding that there exists within this state substantial evidence related to the child’s present and future care, protection, training and personal relationships.

¶16 Our own review of the record demonstrates that there is substantial evidence to support the District Court’s findings, that the District Court has not misapprehended the evidence before it, and that the factual determinations of the District Court regarding N.G.H.’s connections to the State of Montana and the local availability of evidence regarding her present and future care, protection, training and personal relationships are not clearly erroneous. We therefore hold that the District Court properly exercised its subject matter jurisdiction over this dispute pursuant to § 40-4-2 ll(l)(b), MCA.

¶17 Katherine’s argument that the Montana court should not have exercised jurisdiction over this matter because Montana was not the child’s home state as of the time of the filing of the custody petition is not persuasive. Because § 40-4-211, MCA, is written in the disjunctive, subject matter jurisdiction in the Montana courts will lie when any one of its provisions is satisfied. An inquiry into whether or not Montana was the home state for this child at the time of the filing of the petition would be relevant only under the application of § 40-4-2ll(l)(a) or § 40-4-211(l)(d), MCA. Since we have already concluded that subject matter jurisdiction was properly conferred through the operation of § 40-4-2 ll(l)(b), MCA, it is not necessary for us to determine whether or not the District Court erred in failing to find that Montana was the child’s home state as of the commencement of these proceedings.

SECOND ISSUE

¶ 18 Did the District Court infringe upon Katherine’s constitutional right to travel by assuming jurisdiction over this child custody dispute?

¶19 Katherine argues that under Shapiro v. Thompson (1969), 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600, and In re Custody of D.M.G., 1998 MT 1, [287 Mont. 120], 951 P.2d 1377, her constitutional right to travel has been infringed as a result of the Montana court’s exercise of jurisdiction in this matter. As Douglas correctly indicates in his response, this is the first time such an issue has been raised throughout the course of these proceedings. “It is a settled rule in Montana that we will not review an issue raised for the first time on appeal.” In re Marriage of Erler (1993), 261 Mont. 65, 73, 862 P.2d 12, 18; In re Marriage of Starks (1993), 259 Mont. 138, 146, 855 P.2d 527, 532. As this issue was not raised by Katherine at any time prior to her appeal, we decline to address it here.

¶20 We hold that the District Court did not err in exercising subject matter jurisdiction over this custody proceeding pursuant to § 40-4-211(1)0»), MCA.

¶21 Affirmed.

JUSTICES GRAY, NELSON, REGNIER and HUNT concur.

      . This portion of the UCCJA was amended effective October 1,1997, with minor changes to the language of the text. In deciding this matter, the Court has referred to the version of the statute in force at the time of the filing of the petition.