author: JUSTICE REGNIER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOHN RICHARD MORGAN, Defendant and Appellant.
    No. 97-711.
    Submitted on Briefs June 11, 1998.
    Decided November 12, 1998.
    1998 MT 268.
    55 St.Rep. 1112.
    291 Mont. 347.
    968 P.2d 1120.

      For Appellant: Harold H. Harrison and Royal Aubrey Davis, Helena
    For Respondent: Hon. Joseph R Mazurek, Attorney General; John Paulson, Assistant Attorney General; Helena; Mike McGrath, Lewis and Clark County Attorney; Vicki Frazier, Deputy County Attorney; Helena
   JUSTICE REGNIER

delivered the opinion of the Court.

¶1 John Richard Morgan was charged by information in the First Judicial District Court, Lewis and Clark County, with one count of incest, in violation of § 45-5-507, MCA. Morgan filed a motion to dismiss on April 10,1997, and the District Court denied his motion on June 2, 1997. On June 11, 1997, a jury found Morgan guilty. Morgan filed a motion for a new trial on July 11,1997. Following a hearing, the District Court denied the motion on September 19,1997. On October 30, 1997, the District Court sentenced Morgan to a term of twelve years at the Montana State Prison, with four years suspended. Morgan filed a notice of appeal on November 12, 1997. We affirm the judgment of the District Court.

¶2 The issues presented on appeal are as follows:

¶3 1. Did the District Court err when it denied Morgan’s motion to dismiss based upon its conclusion that § 45-5-507, MCA, does not violate Article V, Section 11(3), of the Montana Constitution?

¶4 2. Did the District Court abuse its discretion when it allowed the State to present expert testimony regarding child sexual abuse?

¶5 3. Did the District Court abuse its discretion when it denied Morgan’s motion for a new trial which he based upon his contention that the District Court erred when it admitted certain testimony by the State’s expert witness?

¶6 4. Did the District Court abuse its discretion when it denied Morgan’s motion for a new trial which Morgan based upon his contention that the State had prevented Karen Morgan from testifying?

FACTUAL BACKGROUND

¶7 Morgan and his wife, Mary, reside in a small two-bedroom mobile home in Helena. Mary’s fifteen-year-old daughter from a former marriage, E.G., resides with her father in a small town near Kalispell. In December 1996, E.G. went to Helena to visit her mother and her stepfather, Morgan. Morgan’s seventeen-year-old daughter, Karen Morgan, who lives with Morgan’s former wife in Florida, was also visiting the Morgans in Helena that December.

¶8 After staying up all night on December 25,1996, Karen and E.G. went with Mary and Morgan to take Mary to work. When the three of them returned to the mobile home, Karen and E.G. decided to get some sleep. Karen went to sleep in the middle bedroom, and E.G. changed into her nightgown and was going to sleep on the couch in the living room. However, as E.G. testified at trial, Morgan told E.G. that she could lie down with him in his bed in the back bedroom. E.G. went to the back bedroom and fell asleep.

¶9 E.G. woke up and felt Morgan touching her. E.G. testified that Morgan was touching her underneath her nightgown, placing his hands beneath her bra and beneath her panties. When Morgan unsnapped E.G.’s bra, E.G. got up from the bed and went out to the living room. She told Morgan that she was going to watch a video. Morgan followed her to the living room and told E.G. that she could watch the video in the back bedroom. At first E.G. declined, but Morgan insisted, so E.G. went back to Morgan’s bedroom to watch the video.

¶10 While E.G. and Morgan were in the back bedroom the second time, Morgan began touching E.G. again in her breast and pubic areas. Morgan told E.G. that she was beautiful and sexy. He asked E.G. some sexually explicit questions and propositioned her sexually. Although E.G. had studied reproduction in health class and believed she knew what Morgan was asking, she testified that she herself had never used the sexual terms that Morgan used.

¶11 E.G.toldMorgan“no”andwentbackouttothelivingroom. E.G. started cleaning, and Morgan came back out to the living room and got something to eat. Morgan and E.G. then played some board games and watched television. Karen was still sleeping, and neither E. G. nor Morgan mentioned what had happened in the back bedroom.

¶ 12 Shortly before 2:00 p.m. Morgan left to pick Mary up from work. While he was gone, E.G. received a phone call from her father in Kalispell. During the call, E.G. also talked with Donna Sausedo, who lives with E.G.’s father and has been a mother figure for E.G. for several years. E.G. began crying and told Donna what had happened that morning. Donna and E.G.’s father notified law enforcement authorities and left at once for Helena.

¶13 After speaking with Donna, E.G. told Karen what had happened and why she was crying. When Morgan returned with Mary, Karen told E.G. that she should tell Mary as well. After E.G. told Mary, Morgan learned that officers would be coming out to his residence and, therefore, decided to leave E.G. with Karen and go to the police station with Mary to talk with a deputy sheriff about the incident.

¶ 14 Morgan told the deputy that he fell asleep on the bed and awoke to find that he had his arms around E.G. and one hand on her breast. He stated that he thought that it was his wife, Mary, in bed with him and that when he realized it was E.G., he removed his hand and told E.G. that she would have to get out of bed. When told that E.G. had a different account of the incident, Morgan modified his account by stating that he awoke with his hand going up E.G.’s hip and across her lower abdomen, and up her breast. According to Morgan, he then realized that the body next to him was not his wife’s.

ISSUE 1

¶15 Did the District Court err when it denied Morgan’s motion to dismiss based upon its conclusion that § 45-5-507, MCA, does not violate Article V, Section 11(3), of the Montana Constitution?

¶16 Morgan’s first issue on appeal arises from the District Court’s denial of his pretrial motion to dismiss the charge of incest. Morgan maintains that Montana’s incest statute, § 45-5-507, MCA, was amended in violation of Article V, Section 11(3), of the Montana Constitution, which requires each legislative bill to contain only one subject clearly expressed in its title. Morgan claims that because of this, the statute is void and the offense is not a crime. Morgan also argues that since marriage between a stepfather and a stepdaughter is not explicitly prohibited by statute, his conduct with E.G. could not be considered incest.

¶17 We have held that the grant or denial of a pretrial motion to dismiss in a criminal case presents a question of law for review on appeal. The standard of review of a district court’s conclusions of law is plenary, and this Court reviews the conclusions to determine if they are correct. See State v. Hansen (1995), 273 Mont. 321, 323, 903 P.2d 194, 195; State v. Sage (1992), 255 Mont. 227, 229, 841 P.2d 1142, 1143. Upon plenary review, we affirm the District Court’s denial of Morgan’s motion to dismiss.

A. Constitutionality of§ 45-5-507, MCA

¶18 Article V, Section 11(3), of the Montana Constitution provides in pertinent part that:

Each bill, except general appropriation bills and bills for the codification and general revision of the laws, shall contain only one subject, clearly expressed in its title. If any subject is embraced in any act and is not expressed in the title, only so much of the act not so expressed is void.

Subsection (6) of this section further provides, however, that “[a] law may be challenged on the ground of noncompliance with this section only within two years after its effective date.”

¶19 The 1983 Montana Legislature amended the incest statute, which was then codified as § 45-5-613, MCA, to include within its protective scope any stepchild who has not been adopted by the offender. See 1983 Mont. Laws, ch. 438. The amendment became effective on October 1,1983, and is contained within the incest statute now codified as § 45-5-507, MCA. The title to the bill reads as follows:

AN ACT TO AMEND THE DEFINITION OF THE CRIME OF INCEST TO INCLUDE ANY SEXUAL CONTACT; TO EXTEND THE DEFINITION TO INCLUDE ANY STEPSON OR STEPDAUGHTER WHO HAS NOT BEEN ADOPTED BY THE PERSON COMMITTING THE OFFENSE; PROVIDING FOR THE DEFENSE OF CONSENT; AMENDING SECTION 45-5-613, MCA.

¶20 In order to determine whether the 1983 legislation contains multiple subjects not clearly expressed in the title, we must look to the policy behind Article V, Section 11(3), of the Montana Constitution. In Montana Automobile Ass’n v. Greely (1981), 193 Mont. 378, 632 P.2d 300, we stated that:

The purpose of requiring singleness of subject is to prevent the practice of embracing in the same bill incongruous matters which have no relation to each other or to the subject specified in the title, so that measures may not be adopted without attracting attention to them. Rosebud County v. Flinn (1940), 109 Mont. 537, 543-44, 98 P.2d 330, 334; Jobb v. Meagher County (1898), 20 Mont. 424, 437, 51 P. 1034, 1038.

Montana Auto. Ass’n, 193 Mont. at 398, 632 P.2d at 311. We further stated that “[t]he test under this provision of the Montana Constitution is simply whether the title is of such character as to mislead the public as to the subjects embraced.” Montana Auto. Ass’n, 193 Mont. at 398, 632 P.2d at 311 (citing City of Helena v. Omholt (1970), 155 Mont. 212, 220-21, 468 P.2d 764, 768).

¶21 The Act clearly addresses the singular subj ect of incest. It does not embrace other irrelevant or incongruous matters. We agree with the District Court that the public could not be misled as to the subject discussed, and conclude that the District Court’s interpretation of the law was correct.

B. Applicability of§ 45-5-507, MCA

¶22 The second part of Morgan’s pretrial motion to dismiss, which he raises again on appeal, is his contention that the incest cannot occur and, thus, the criminal statute does not apply, in cases in which the parties involved in the conduct could lawfully marry. Because § 40-1-401, MCA, which lists the marriages prohibited in Montana, does not expressly prohibit a marriage between a stepfather and his stepdaughter, Morgan argues that the crime of incest may not, as a matter of law, be committed by a stepfather upon his stepdaughter.

¶23 We agree with the conclusion of the District Court that Morgan’s contention is premised upon his erroneous belief that a marriage between a stepfather and a stepdaughter is not prohibited in Montana. The stepfather/stepdaughter relationship is created when the stepfather marries the stepdaughter’s mother, and is terminated when the marriage is dissolved. Section 40-l-401(l)(a), MCA, prohibits a marriage “entered into prior to the dissolution of an earlier marriage of one of the parties.” Thus a stepfather could not lawfully marry his stepdaughter during the time the stepfather is married to his stepdaughter’s mother and the stepfather/stepdaughter relationship exists. Morgan could not have lawfully married E.G. at the time of the offense; the premise underlying Morgan’s argument, therefore, provides no support for his argument. Accordingly, we conclude that the District Court correctly interpreted the law and did not err when it denied Morgan’s motion to dismiss.

ISSUE 2

¶24 Did the District Court abuse its discretion when it allowed the State to present expert testimony regarding child sexual abuse?

¶25 At trial, the District Court allowed the State to present the testimony of Sandy Ashley, a licensed professional counselor, so long as Ashley’s testimony was limited to general matters concerning child sexual abuse. The District Court found that Ashley was qualified to testify in areas in which she works and within the guidelines set forth by this Court and the Legislature.

¶26 Ashley did not investigate E.G.’s case and offered no opinion concerning the credibility of E.G. or any other specific aspect of the case. Instead, Ashley testified about patterns of child sexual abuse and factors to consider in the evaluation of a child’s report of sexual abuse. Prior to and after Ashley’s testimony, Morgan objected to and later moved to strike Ashley’s testimony on grounds of relevancy. The District Court overruled the objection and denied the motion to strike.

¶27 On appeal, Morgan contends that the facts of the case could be understood and determined by the jury without the need for expert opinion testimony. Morgan maintains that the District Court erred when it allowed any expert testimony at trial.

¶28 The standard of review of discretionary trial court rulings is 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).

¶29 Morgan does not dispute Ashley’s qualifications. Instead, he suggests that the subject of child sexual abuse does not require any expert testimony to assist the understanding of the jury. However, we have consistently upheld, pursuant to Rule 702, M.R.Evid., the use of expert testimony to explain the complexities of child sexual abuse and to give guidance which would help jurors understand and judge the victim’s testimony. See State v. Alexander (1994), 265 Mont. 192, 875 P.2d 345; State v. McLain (1991), 249 Mont. 242, 815 P.2d 147; State v. Donnelly (1990), 244 Mont. 371, 798 P.2d 89, overruled on other grounds by State v. Imlay (1991), 249 Mont. 82, 91, 813 P.2d 979, 985. ¶30 In State v. Scott (1993), 257 Mont. 454, 850 P.2d 286, we held that:

Expert testimony relating to the contradictory behavior ... of a child victim of sexual abuse, will be allowed to enlighten the jury on a subject with which most people have no common experience and to assist the jurors in assessing the credibility of the victim.

Scott, 257 Mont. at 456, 813 P.2d at 292. Such testimony does not impinge upon the jury’s ultimate obligation to decide the credibility of the victim. See Donnelly, 244 Mont. at 378, 798 P.2d at 93, overruled on other grounds by Imlay, 249 Mont. at 91, 813 P.2d at 985.

¶31 In this case, Ashley gave general information to the jurors about the factors which may be used when assessing a case of alleged child sexual abuse. Her expertise concerned a subject about which lay persons would have little or no experience. We agree with the District Court that the expert testimony was clearly admissible pursuant to our prior decisions which address the issue of expert testimony in child sexual abuse cases. Accordingly, we conclude that the District Court did not abuse its discretion when it allowed the expert testimony.

ISSUE 3

¶32 Did the District Court abuse its discretion when it denied Morgan’s motion for a new trial which he based upon his contention that the District Court erred when it admitted certain testimony by the State’s expert witness?

¶33 A district court may grant a motion for a new trial if required “in the interest of justice.” Section 46-16-702 (1), MCA. The District Court’s exercise of discretion concerning whether to grant a motion for new trial will be affirmed on appeal in the absence of a manifest abuse of discretion. See State v. Hatfield (1995), 269 Mont. 307, 308, 888 P.2d 899, 900.

¶34 Morgan first argues that the District Court improperly allowed the State’s expert witness, Sandy Ashley, to confirm and bolster the testimony of the victim. He bases this argument upon the following exchange which occurred during cross-examination:

Q: (DEFENSE COUNSEL): You are not acquainted with any of the parties, are you?
A: No, I’m not.
Q: So as you sit here testifying today, you don’t know whether there was any sexual abuse in this case or not, isn’t that right?
A: I don’t know. I’m assuming there was, or I wouldn’t have been asked to talk about it. But no, I don’t know.
Q: You assumed?
A: I’m assuming this case is about that, or I wouldn’t have been asked to testify. But I don’t know.

¶35 The District Court found that Ashley’s response to defense counsel’s questions established merely that she assumed the case involved an allegation of sexual abuse and that she did not know whether any sexual abuse had actually occurred. The District Court did not find Ashley’s response to be prejudicial or find it to be a comment on E.G.’s credibility.

¶36 We conclude that the District Court’s ruling falls within the wide latitude accorded to district courts in discretionary matters. Ashley’s response to defense counsel’s questions did not bolster or confirm E.G.’s account of the incident. Ashley repeatedly stated that she did not investigate the case and that it was not her purpose to give an opinion about the case. Her second response clarified that her assumption went only to the nature of the case and that she did not know whether any sexual abuse had occurred.

¶37 Morgan also contends that the District Court improperly permitted Ashley to testify about the pattern of sexual abuse within families in which the perpetrator forms a close, positive, and ultimately seductive relationship with the child victim, which results in the child’s confusion and mixed feelings about the sexual incident. However, upon review of Ashley’s complete testimony, we agree with the District Court that this testimony was part of Ashley’s general explanation of child sexual abuse and the contradictory behavior sometimes seen in child victims. Ashley’s testimony did not comment upon or conform to E.G.’s account of the incident and cannot be viewed as an expert opinion on E.G.’s credibility.

¶38 Morgan further alleges error when the District Court allowed Ashley to testify to “evidence that had a tendency to suggest a decision (verdict) on an improper basis” and “to describe the reactions of other alleged victims of sexual assault in the absence of an attack on the character for truthfulness of the complaining witness.” However, aside from quoting decisions from other jurisdictions, Morgan does not refer to specific portions of Ashley’s testimony to support these claims of error. Again, our review of Ashley’s testimony shows no departure from the proper purposes for which it was offered. Accordingly, we conclude that the District Court did not abuse its discretion when it allowed Ashley’s testimony.

¶39 Morgan appeals the District Court’s decision to overrule his objection regarding the relevancy of Ashley’s testimony which described other cases “where the parties involved have some relationship and what was done, what was said.” However, our review of Ashley’s testimony leads us to conclude that the statements to which Morgan objects are part of an extended discussion of the factors which may be taken into consideration when assessing an allegation of child sexual abuse. Ashley’s testimony, both before and after Morgan’s objection, falls within our guidelines for expert opinion testimony in such cases. Rules 703 and 705, M.R.Evid., permit an expert to discuss the underlying facts or data upon which the expert bases an opinion, and a district court has broad discretion to determine the relevance of the proposed expert testimony. See Thomsen v. State (1992), 253 Mont. 460, 462, 833 P.2d 1076, 1077. Because Ashley’s testimony was merely an explanation of factors that an expert, such as herself, would take into consideration when assessing a child sexual abuse case, we conclude that the District Court did not abuse its discretion when it overruled Morgan’s objection and allowed her to testify.

¶40 Morgan’s remaining issues regarding Ashley’s testimony are premised upon his assertion that Ashley implicitly gave an expert opinion on the credibility of E.G. The cases Morgan cites in support of his position involve expert witnesses whose testimony directly supports the credibility of the victim. However, our review of the record shows that Ashley did not mention E .G. in her testimony, did not state that she believed E.G.’s account, and did not suggest that all children who allege abuse should be believed. At no point did Ashley comment, directly or indirectly, on E.G.’s credibility. The jury was free to accept or reject the testimony offered by Ashley and her testimony did not impinge upon the jury’s duty to decide the issue of E.G.’s credibility.

¶41 Accordingly, we conclude that the District Court did not abuse its discretion when it denied Morgan’s motion for a new trial which was based upon the alleged impropriety of Ashley’s expert testimony.

ISSUE 4

¶42 Did the District Court abuse its discretion when it denied Morgan’s motion for a new trial which Morgan based upon his contention that the State had prevented Karen Morgan from testifying?

¶43 Morgan alleged as the final grounds for his motion for a new trial that he was prevented by the State from presenting the testimony of his daughter, Karen Morgan, at trial. In support of this contention, Morgan submitted an affidavit from Karen Morgan. The State responded by submitting an affidavit from Vicki Frazier, the deputy county attorney who prosecuted the case.

¶44 As previously stated, the standard of review of discretionary trial court rulings is abuse of discretion. See May, 270 Mont. at 134, 890 P.2d at 388.

¶45 Karen Morgan, who is Morgan’s daughter from a previous marriage, was present in the Morgan home on the day of the incident and gave statements to law enforcement officers following the incident. Both the State and Morgan named Karen as a witness at trial. However, the State maintains that because of budget concerns, the State decided it would not attempt to bring Karen from Florida to Helena for trial.

¶46 According to Karen, Morgan sent her an airplane ticket so that she could come to the trial. However, just before trial Karen informed her father and the State that she had changed her mind and would not be returning to Helena to testify. Her affidavit alleges that she decided not to come to Helena for the trial because of a conversation she had with the prosecutor, Vicki Frazier, in which she alleges Frazier told her that if she testified at Morgan’s trial her testimony could be used against him. Karen also alleges that Frazier told her that Morgan would be convicted whether Karen was at the trial or not. Karen maintains that because of this conversation she was concerned that if she returned to Montana to testify for Morgan she might get herself into trouble or hurt Morgan’s case.

¶47 Frazier’s affidavit, on the other hand, acknowledges that a conversation took place, but contradicts Karen’s suggestion that she improperly threatened Karen or indicated that her testimony was not important.

¶48 The District Court considered both affidavits and found nothing to indicate that the State had somehow prevented Morgan from calling his daughter to testify. In addition, the court noted, Morgan took no steps to have his daughter subpoenaed or to request a continuance when he found out that Karen would not be at the trial. The District Court concluded that Morgan had not presented sufficient grounds to warrant a new trial.

¶49 We agree with the District Court that Morgan was aware of Karen’s prospective testimony and her whereabouts and that it was his responsibility to secure her attendance if he deemed it necessary. Accordingly, we conclude that the District Court did not abuse its discretion when it denied Morgan’s motion for a new trial based on its conclusion that the prosecution did not prevent the testimony of Karen Morgan.

¶50 The judgment of the District Court is affirmed.

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


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    BRIAN W. BUSH, Petitioner and Appellant, v. MONTANA DEPARTMENT OF JUSTICE, MOTOR VEHICLE DIVISION, Respondent and Respondent.
    No. 97-400.
    Argued and Submitted June 30, 1998.
    Decided November 12, 1998.
    1998 MT 270.
    55 St.Rep. 1118.
    291 Mont. 359.
    968 P.2d 716.

      For Appellant: Matthew J. Wald, Miles City (argued)
    For Respondent: Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena (argued); Garry P. Bunke, Custer County Attorney, Miles City
   JUSTICE HUNT

delivered the Opinion of the Court.

¶1 Brian W. Bush (hereinafter Bush) appeals the ruling of the Sixteenth Judicial District Court, Custer County, denying his petition for reinstatement of his driver’s license. We reverse.

ISSUE

¶2 Did the District Court err in denying Bush’s petition for reinstatement of his driver’s license under § 61-8-403, MCA?

BACKGROUND

¶3 On April 4,1997, at approximately 9:30 p.m., Deputy Sheriff David Power observed a set of swerving car tracks on the highway and followed them to a car stopped in a borrow pit off the shoulder of the road. It was snowing that evening and the highway was covered with a blanket of snow. When the deputy pulled over to investigate, the driver of the vehicle, now known to be Bush, exited the vehicle and met Deputy Power in the roadway.

¶4 Bush explained to Deputy Power that he had been out test-driving his vehicle after performing some mechanical work on it, when a mechanical failure of unknown origin caused him to lose control of the vehicle and slide off the road. Bush also explained to Deputy Power that he and his passenger had been sitting in the vehicle for approximately forty-five minutes discussing where would be the best place to walk in search of assistance. During this same time, Bush and his passenger each consumed approximately two beers from an 18-pack of beer that Bush had in the vehicle.

¶5 While Bush and Deputy Power were conversing, Deputy Power detected the smell of alcohol on Bush and directed Bush and the passenger in Bush’s vehicle to get into the back of the police car. Deputy Power did not perform any field sobriety tests on Bush before driving him to the police station.

¶6 At the police station, Deputy Power read the implied consent advisory form to Bush and requested that Bush undergo a breathalyser test. Bush refused, whereupon his driver’s license was seized. Deputy Power later drove Bush back to the abandoned vehicle so that Bush could retrieve his checkbook and post bail, at which time Deputy Power also seized four empty beer cans from inside the vehicle.

STANDARD OF REVIEW

¶7 A district court’s denial of a petition for reinstatement of a driver’s license is reviewed by this Court to determine whether the district court’s findings of fact are clearly erroneous and whether its conclusions of law are correct. Hulse v. State, Dep’t of Justice, 1998 MT 108, ¶ 14, [289 Mont. 1], 961 P.2d 75, ¶ 14. 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. Interstate Prod. Credit Ass’n v. De Saye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

DISCUSSION

¶8 When reviewing the suspension of a driving license under Montana’s implied consent law, the district court is limited to considering the three issues set forth in § 61-8-403(4)(a), MCA, which are whether:

(i) a peace officer had reasonable grounds to believe that the person had been driving or was in actual physical control of a vehicle upon ways of this state open to the public while under the influence of alcohol, drugs, or a combination of the two;
(ii) the person was placed under arrest; and
(iii) the person refused to submit to the test or tests.

¶9 Historically, this Court has not been entirely clear or consistent in its interpretation of the provisions outlined in § 61-8-403(4)(a), MCA. See Suspension of Driver’s License of Blake (1986), 220 Mont. 27, 35, 712 P.2d 1338, 1343-44 (4-3 decisionXSheehy, J., dissenting) (“Incredibly, the State has argued in this case that the question of the lawfulness of the arrest is not to be considered on review in this type of case and this Court, by implication, seems to agree.”); Gebhardt v. State (1989), 238 Mont. 90, 97, 775 P.2d 1261, 1266 (“... reasonable grounds exist if the facts and circumstances within the personal knowledge of the arresting officer would be sufficient to warrant a reasonable person to believe the motorist is under the influence of alcohol.” (citing State v. Lee (1988), 232 Mont. 105, 754 P.2d 512)); Boland v. State (1990), 242 Mont. 520, 524, 792 P.2d 1,3 (“reasonable grounds” as used in § 61-8-403(4)(a)(i), MCA, is synonymous with the “probable cause” standard required for warrantless arrests (citing State v. Davis (1980), 190 Mont. 285, 289, 620 P.2d 1209, 1212)); Armstrong v. State, Dep’t of Justice (1990), 245 Mont. 420, 423, 800 P.2d 172, 174 (“reasonable grounds” to believe the petitioner was under the influence of alcohol is satisfied if there was a particularized suspicion justifying the stop for any legitimate purpose and the officer thereafter developed probable cause to arrest for DUI); Grinde v. State (1991), 249 Mont. 77, 80, 813 P.2d 473, 475 (holding that the arrest requirement of § 61-8-403(4)(a)(ii), MCA, requires a particularized suspicion of some wrongdoing before a motorist can be stopped and ultimately arrested under probable cause for DUI); Jess v. State, Dept. of Justice, MVD (1992), 255 Mont. 254, 260, 841 P.2d 1137, 1141 (holding that an officer had reasonable grounds to suspect the petitioner of DUI and reasonable grounds to detain him where a citizen informant’s information provided the officer with probable cause to investigate); McCullugh v. State (1993), 259 Mont. 406, 408, 856 P.2d 958, 959 (“ ’Reasonable grounds’ as used in § 61-8-403, MCA, is synonymous with ‘probable cause.’ ”).

¶10 However, despite this Court’s previously unpredictable and often contradictory application of § 61-8-403(4)(a), the Court has recently generated a cohesive line of cases which more clearly define the purpose and scope of the language of the statute. These cases hold that the standard for finding “reasonable grounds,” under § 61-8-403(4)(a)(i), MCA, is identical to the standard for finding a “particularized suspicion,” as that term has been defined and applied under § 46-5-401, MCA. Hulse, ¶ 12; Seyferth v. State Dep’t of Justice (1996), 277 Mont. 377, 384, 922 P.2d 494, 498; Anderson v. State Dep’t of Justice (1996), 275 Mont. 259, 263, 912 P.2d 212, 214; Bauer v. State (1996), 275 Mont. 119, 124, 910 P.2d 886, 889.

¶11 Therefore, the first issue to be determined by the district court upon a petition for review of the seizure of a driver’s license under § 61-8-402, MCA, is whether the arresting officer possessed a particularized suspicion that the individual in question had been driving or was in actual physical control of a vehicle upon ways of this state while under the influence of alcohol or drugs; such a suspicion may be formed by an experienced law enforcement officer on the basis of reasonable inferences drawn from objective data. State v. Lee (1997), 282 Mont. 391, 394, 938 P.2d 637, 639; State v. Gopher (1981), 193 Mont. 189, 193, 631 P.2d 293, 296. Furthermore, we take this opportunity to clarify that to the extent our prior cases conflict with the interpretation of § 61-8-403(4)(a)(i), MCA, set forth in the Bauer line of authority, those cases are hereby expressly overruled.

¶12 The second issue to be determined by the District Court is whether the person was under arrest at the time the breath sample was requested. Not only must the person have been under actual arrest, but the arrest itself must comply with the constitutional and statutory requirements for a warrantless arrest, including the existence of probable cause. Section 46-6-311, MCA ;Hulse, ¶ 13. Probable cause exists if at the time of the arrest there were sufficient facts and circumstances within the officer’s personal knowledge to warrant a reasonable person’s belief that the suspect had committed an offense. State v. Lee (1988), 232 Mont. 105, 109, 754 P.2d 512, 515.

¶13 The third issue to be determined by the District Court is whether the person seeking reinstatement of the license had in fact declined to submit to a breath test when requested to do so, but neither this nor the first issue are in dispute in this case. The parties agree that upon seeing the swerving tracks on the highway and the vehicle sitting in the barrow pit, Deputy Power had reasonable grounds to believe that the driver may have been operating the vehicle while under the influence of alcohol. Likewise, Bush concedes that he did in fact refuse to perform the breath test.

¶14 The pivotal issue, then, comes under § 61-8-403(4)(a)(ii), MCA, which requires that Bush was under arrest at the time the breath sample was requested. If Deputy Power lacked probable cause to arrest Bush, then the arrest was invalid and cannot satisfy the statutory requirements for seizure of a driver’s license under the implied consent laws. In its Findings of Fact, Conclusions of Law and Order, the District Court held that

... Deputy Power already had reasonable grounds to believe Mr. Bush was driving under the influence. For purposes of making an arrest and requesting a breathalyser, that is all that is required.... Having reasonable grounds to believe Mr. Bush was driving under the influence, Deputy Power could lawfully arrest Mr. Bush and request Mr. Bush to take the breathalyser.

¶15 In reaching its conclusion, the District Court erroneously merged the requirement of “reasonable grounds” under § 61-8-403(4)(a)(i), MCA, with the requirement of probable cause to arrest mandated by § 61-8-403(4)(a)(ii), MCA. Although an investigative stop of the kind authorized by § 61-8-403(4)(a)(i), MCA, and § 46-5-401, MCA, requires only a particularized suspicion of criminal activity, a warrantless arrest requires something more than mere suspicion; it requires a belief, reasonable under the facts and circumstances within an officer’s personal knowledge, that an offense has been committed. Hulse, ¶ 13.

¶ 16 A review of the record reveals that the facts in this case were insufficient to give rise to probable cause to arrest Bush for DUI. Although Deputy Power testified that he smelled alcohol on Bush during the conversation that took place immediately after his arrival on the scene, the incident report prepared by Deputy Power indicates that the smell of alcohol on Bush was not a strong one and that Bush displayed no other visible signs of intoxication in the way he walked or spoke. Additionally, Deputy Power did not conduct any field sobriety tests to determine the extent to which Bush was actually under the influence of alcohol at the time of his arrest.

¶17 The State argues that it would not have been reasonable to expect Deputy Power to conduct a series of field sobriety tests in the snowy and windy conditions that existed on that night. However, as Bush points out, there are a number of field sobriety tests that could easily have been performed within the confines of the deputy’s vehicle, including the hand clap test, the finger count test, or requesting Bush to recite the alphabet; yet none of these tests were administered.

¶18 The State also argues that under our holding in McCullugh, Deputy Power had no duty to make any inquires which would either verify Bush’s statements or rule out Bush’s story as a plausible explanation for the cause of the accident. McCullugh, 259 Mont. at 410, 856 P.2d at 595-60. This argument is unpersuasive, because the result in McCullugh is distinguishable on its facts from the case sub judice. In McCullugh, the plaintiff’s explanation that the brakes on his truck had gone out while driving to a friend’s house hours before, and that he had only begun drinking in the interim between the time he abandoned the vehicle and when he returned to it sometime later, was never communicated to the arresting officer. Because McCullugh first proffered this explanation during proceedings before the district court, the arresting officer could not have taken any of that information into account in determining whether probable cause existed at the time of the arrest.

¶19 In contrast, Bush relayed to Deputy Power the reason for the condition of his vehicle immediately upon Deputy Power’s arrival at the scene. Bush also volunteered the fact that he and his passenger had consumed a couple of beers while sitting in the vehicle subsequent to the accident. While Deputy Power was not necessarily required to accept this explanation on its face, neither is he allowed to wholly disregard it when the other facts and circumstances of the situation make this explanation appear plausible. In particular, the fact that Bush did not appear by his movements or speech to be impaired in any way, and that Deputy Power admitted Bush did not smell strongly of alcohol, would mitigate against a finding of probable cause to arrest Bush for DUI unless some other indicia of intoxication were present. Since Deputy Power declined to perform any field sobriety tests, the record does not reflect any such indicia in this case.

¶20 In Hulse, this Court recognized that an investigative stop can take on the quality of an escalating situation leading to probable cause based on additional information gleaned by the law enforcement officer during the course of the investigation. Hulse, ¶40. By the same reasoning, however, additional information obtained during the investigative process can also have the effect of eliminating probable cause to arrest for DUI, even where a valid particularized suspicion existed which would have initially justified the stop.

¶21 There is some discrepancy in the record regarding whether Deputy Power noted the presence of the four empty beer containers in the vehicle prior or subsequent to the time of Bush’s arrest and whether that fact could have been relied upon by Deputy Power in determining if he had probable cause to arrest Bush. We note that the record is not clear on this point. However, this fact is not crucial to our analysis, because the presence of the containers comports with Bush’s explanation of events, and so neither supports nor contradicts a conclusion that Bush had been driving while under the influence of alcohol for purposes of generating probable cause to arrest him.

¶22 Because our review of the record convinces us that Deputy Power did not have probable cause to arrest Bush at the time the breathalyser sample was requested, we hold that Bush’s driver’s license was not properly seized pursuant to § 61-8-402, MCA, and the decision of the District Court is reversed on those grounds.

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


author: JUSTICE LEAPHART

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMES ANDERSON NICHOLS, Defendant and Appellant.
    No. 98-388.
    Submitted on Briefs October 1, 1998.
    Decided November 12, 1998.
    1998 MT 271.
    55 St.Rep. 1122.
    291 Mont. 367.
    970 P.2d 79.
    For Appellant: Karl Knuchel, Livingston

      For Respondent: Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders, Ass’t Attorney General, Helena; Tara DePuy, Park County Attorney; Catherine L. Truman, Deputy County Attorney, Livingston.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 The Park County Attorney charged James Anderson Nichols (Nichols) with six counts of criminal sale of a dangerous drug, a felony in violation of § 45-9-101, MCA. Pursuant to a plea agreement, the State dismissed Counts 1, 4, 5 and 6 and Nichols entered an Alford plea as to Counts 2 and 3, but reserved his right to file a motion to dismiss in the District Court. Nichols then filed a motion to dismiss arguing that, since the State could not produce the alleged dangerous drugs, it would be unable to conduct any scientific testing of the substances, and without any testimony from a laboratory expert, the State would be unable to positively identify the substance and, thus, unable to prove its case. The District Court denied the motion to dismiss and Nichols appeals from that order.

¶2 The facts, as alleged in the affidavit in support of the motion to file the information, are as follows:

During an investigation of a juvenile runaway, Deputy Scott Hamilton of the Park County Sheriff’s Department obtained information that there had been an alcohol and marijuana party in Gar-diner, Park County, Montana, on April 5,1997, at which numerous juveniles were present. Deputy Hamilton was provided with a list of juvenile names who had been present at the party at the Proffit residence.
On April 13, 1997, Deputy Hamilton interviewed Bobbie Perkins, sixteen years of age. Mr. Perkins stated that on April 5, 1997, he was present at the Proffit residence between 9:30 p.m. and 10:00 p.m. for a party. Numerous juveniles were at the party. Two adults furnished vodka, orange juice and schnapps. Beer was also present at the party.
At approximately 11:30 p.m. Mr. Perkins went into the kitchen of the residence. Defendant took out a marijuana pipe, took marijuana out of a film canister, packed the pipe with the marijuana and passed it around numerous times. Every time the pipe was packed with marijuana, defendant packed the pipe. Defendant also smoked marijuana from the pipe. Mr. Perkins identified several people who smoked marijuana, including several juveniles.
Deputy Hamilton continued his investigation and interviewed numerous juveniles who were at the party at the Proffit residence on April 5,1997. Deputy Hamilton also interviewed Mark Chmura, an adult, who admitted to smoking marijuana at the party with defendant and several juveniles. Through his investigation Deputy Hamilton was able to identify five juveniles and Mr. Chmura who defendant gave marijuana to and who smoked the marijuana at the party.

¶3 In denying Nichols’ motion to dismiss, the District Court held:

The Court believes that the State of Montana can proceed to trial without expert testimony that the substance passed around was marijuana, because marijuana is a drug which is readily identifiable; [and] ... the question of whether it was, in fact, marijuana, would be a factual question for the jury, who would have to judge the credibility of the witnesses[.]

¶4 We agree with the District Court that Nichols’ challenge to the sufficiency of the evidence through a pretrial motion to dismiss was premature because such a challenge can only be made after the State has had an opportunity to present its evidence to the trier of fact.

¶5 Nichols relies on State v. Salois (1988), 235 Mont. 276, 766 P.2d 1306, and State v. Henrich (1994), 268 Mont. 258, 886 P.2d 402, for his contention that the charges should be dismissed due to the inability of the State to provide expert, scientific testimony as to laboratory testing of the substances in question.

¶6 In Salois, the defendant challenged the sufficiency of the evidence in light of the State’s failure to test the marijuana alleged to have been in his possession. This Court held:

“Although we have previously stated that it is preferable to have suspected drug substances tested by the state crime lab, failure to do so does not always render the evidence insufficient to convict a defendant beyond a reasonable doubt.” Salois, 235 Mont. at 279, 766 P.2d at 1309.

¶7 In Salois, we determined that there was sufficient evidence from which the jury could conclude that the substance confiscated was marijuana. Salois, 235 Mont. at 282, 766 P.2d at 1310. The investigating officer testified that he was familiar with the substance and believed it to be marijuana, and an expert who visually inspected a similar substance found throughout the house confirmed that it appeared to be marijuana. Salois, 235 Mont. at 280- 81, 766 P.2d at 1309-10. This Court concluded “’that marijuana is not difficult to characterize without chemical analysis and that testimony of officers who have had experience searching for and identifying marijuana is sufficient.’” Salois, 235 Mont. at 282, 766 P.2d at 1310, quoting State v. Ostwald (1979), 180 Mont. 530, 540, 591 P.2d 646, 652.

¶8 Here, Nichols sought to have the charges dismissed in a pre-trial motion. He requested that the trial court resolve an issue of fact before the State was given an opportunity to present its proof to the trier of fact — the jury. This is clearly distinguishable from the situation in Salois, in which the defendant challenged the sufficiency of the evidence only after the State had presented its case to the jury.

¶9 Nichols’ reliance on Henrich is likewise misplaced since it, too, involved a challenge to the sufficiency of the evidence after a jury trial. The fact that both trial and appellate courts entertain post-trial challenges to the sufficiency of the evidence does not support Nichols’ proposition that a court can, prior to trial, dismiss charges on an assumption that the State will not be able to produce sufficient evidence to support its charge.

¶10 Nichols seeks to have this Court focus on evidence he assumes the State will not be able to produce (i.e., expert laboratory testing) and to ignore any evidence that the State might be able to produce at trial, for example, witness testimony concerning admissions or representations by a defendant as to the nature of the substance; testimony regarding the observable characteristics of the substance — appearance, smell, taste, and side effects of ingestion or inhalation. We hold that such a challenge to the sufficiency of the State’s evidence can only be made post-trial after the State has had an opportunity to present its case and to meet its burden of proof.

¶11 In signing the “Acknowledgment of Rights and Pretrial Agreement,” Nichols acknowledged that he had the “right to have the charges proven beyond a reasonable doubt and to appeal a finding of guilty.” He further recognized that, by pleading guilty, he thereby waived his right to have the State prove the charges beyond a reasonable doubt. Having entered a guilty plea on that basis, he cannot then be heard to argue that, if put to the test at trial, the State would have failed in its burden of proof. If he had doubts about the State’s ability to shoulder its burden of proof, he should have proceeded to trial and let the jury resolve any factual issues bearing upon his guilt or innocence.

¶ 12 The decision of the District Court denying the motion to dismiss is affirmed.

JUSTICES GRAY, HUNT, NELSON and REGNIER concur.


author: JUSTICE GRAY

text:
    IN RE THE MARRIAGE OF GENE R. JARUSSI, Petitioner, Appellant and Cross-Respondent, and ARNEEN K. JARUSSI, Respondent and Cross-Appellant.
    No. 98-175.
    Submitted on Briefs September 10, 1998.
    Decided November 12, 1998.
    1998 MT 272.
    55 St.Rep. 1124.
    291 Mont. 371.
    968 P.2d 720.

      For Appellant: Mark D. Parker; Parker Law Firm, Billings
    For Respondent: Joan Meyer Nye; Nye & Meyer, Billings
   JUSTICE GRAY

delivered the Opinion of the Court.

¶1 Gene R. Jarussi (Gene) appeals and Arneen K. Jarussi (Arneen) cross-appeals from the Findings of Fact, Conclusions of Law and Order entered by the Thirteenth Judicial District Court, Yellowstone County, granting Arneen’s motion to increase Gene’s monthly child support obligation. We reverse.

¶2 Although the parties raise several issues on appeal and cross-appeal, the dispositive issue is whether the District Court abused its discretion in modifying Gene’s child support obligation pursuant to § 40-4-208(2)(b), MCA.

BACKGROUND

¶3 On August 29,1989, the District Court entered a Final Decree of Dissolution (Decree) dissolving Gene and Arneen’s marriage. The Decree incorporated the parties’ Separation Agreement (Agreement) by reference and, pursuant thereto, awarded Gene and Arneen joint custody of their two minor children, Erica and Kevin. The Decree and Agreement also provided that Arneen would be the children’s primary residential custodian, with reasonable visitation privileges in Gene. Gene was obligated to pay $1,100 per month for child support and the parties agreed to “review the child support award as provided by the Montana Supreme Court Guidelines for Child Support.”

¶4 On April 30,1996, Arneen moved the District Court to modify the Decree by, in part, increasing Gene’s child support obligation. In response, Gene contended that Arneen had not established any changed circumstances which made the current child support obligation unconscionable. After a hearing, the District Court entered its Findings of Fact, Conclusions of Law and Order increasing Gene’s child support obligation to $1,903 per month. Gene appeals and Arneen cross-appeals.

DISCUSSION

¶5 Did the District Court abuse its discretion in modifying Gene’s child support obligation pursuant to § 40-4-208(2)(b), MCA?

¶6 Section 40-4-208, MCA, governs modification of child support provisions in a dissolution decree. In pertinent part, that statute provides that modification may be made only when there is “a showing of changed circumstances so substantial and continuing as to make the terms [of the decree] unconscionable” or with the parties’ written consent. Sections 40-4-208(2)(b)(i) and (ii), MCA. Gene asserts that the District Court lacked the authority to modify his child support obligation under § 40-4-208(2)(b), MCA, because it did not make express findings that substantial and continuing changed circumstances existed which made the original child support amount unconscionable and, furthermore, that he did not consent in writing to modify the child support.

¶7 Where a modification of child support is made pursuant to § 40-4-208(2)(b)(i), MCA, a district court’s determinations regarding substantial and continuing changed circumstances and unconscionability are discretionary. As a result, we review those determinations for abuse of discretion. In re Marriage of Pearson, 1998 MT 236, ¶ 30, [291 Mont. 101], 965 P.2d 268, ¶ 30 (citing In re Marriage of Brown (1997), 283 Mont. 269, 272-73, 940 P.2d 122, 124). Furthermore, under § 40-4-208(2)(b)(i), MCA, changed circumstances and unconscionability are distinct factors which must be independently addressed. In re Marriage of Clyatt (1994), 267 Mont. 119, 123, 882 P.2d 503, 506; see also, Marriage of Pearson, ¶ 41. Thus, after finding that the circumstances surrounding the child support obligation have substantially and continuously changed, a district court must make a determination regarding unconscionability. Marriage of Clyatt, 267 Mont. at 123-24, 882 P.2d at 506.

¶8 Here, the District Court found “the circumstances to be sufficiently changed to allow modification” and set forth the following reasons in support of its finding:

a. At time of hearing and submission of this matter, approximately eight years had passed since the original child support determination;
b. The children are necessarily older and in later years of school;
c. The child support guidelines have been significantly modified;
d. Gene’s income has increased substantially from the approximate $90,000 per year he was making in 1989;
e. The parties’ current stipulation related to custody of Erica allows each of the parties approximately equal time where the previous order allowed Erica to primarily be with Arneen; and
f. The parties’ agreement anticipated that they would review the child support award as provided by the guidelines and a provision for review without allowing the Court to make a modification after such review is meaningless.

The court made no other findings or conclusions regarding the § 40-4-208(2)(b)(i), MCA, requirements. Specifically, the court made no express findings that the referenced changed circumstances were so substantial and continuing as to render the original child support amount to be unconscionable. Thus, Gene appears to be correct in asserting that the District Court failed to make the unconscionability finding required by § 40-4-208(2)(b)(i), MCA, and Marriage of Clyatt before a child support obligation may be modified.

¶9 Arneen argues, however, that the District Court did not need to make a finding which expressly used the word “unconscionable” and that such a requirement would be an exaltation of form over substance. She relies on Baer v. Baer (1982), 199 Mont. 21, 647 P.2d 835, for the proposition that a district court’s findings of fact regarding the propriety of modifying child support do not need to reflect the exact wording of § 40-4-208(2)(b), MCA, and asserts that the District Court’s specific finding that “the circumstances [were] sufficiently changed to allow modification” equated to a finding that there were substantial and continuing changed circumstances and that the current child support obligation was unconscionable.

¶10 In Baer, we concluded that the exact wording of § 40-4-208(2)(b), MCA, need not appear in a district court’s findings as long as we could determine (1) whether, in light of the evidence of record, the district court’s findings were clearly erroneous; and (2) whether, in light of the evidence and the findings based thereon, the court adhered to the standards outlined in the statute in making its judgment. Baer, 199 Mont. at 26, 647 P.2d at 838. Under this test, there clearly must be some findings by the district court upon which we may base our analysis of whether the court adhered to the standards of § 40-4-208(2)(b), MCA.

¶11 In the present case, the District Court made findings, as set forth above, that there were changed circumstances. Having done so, it was then required to make findings regarding whether those changed circumstances were so substantial and continuing as to render the original child support amount unconscionable. Marriage of Clyatt, 267 Mont. at 123-24, 882 P.2d at 506. The court did not do so and, specifically, made no findings relating to whether the changed circumstances had any effect on the adequacy of the original child support amount. While it need not couch its findings in the express “unconscionable” language of the statute, it must make findings by which we may determine it addressed the § 40-4-208(2)(b)(i), MCA, unconscionability requirement. We conclude that it failed to do so.

¶12 We observe that both parties appear to request us to examine the evidence in the record and determine, as a matter of law, whether the original child support amount is unconscionable. We decline to do so. As stated above, our review of a district court’s decision to modify child support entails a determination of whether, in light of the evidence of record and the findings based thereon, the court adhered to the requirements of § 40-4- 208(2)(b)(i), MCA. Baer, 199 Mont, at 26,647 P.2d at 838. In the absence of the necessary findings, we must conclude that the District Court did not adhere to the statutory requirements underlying a modification of child support. We further conclude that the District Court’s failure to make findings that the changed circumstances were so substantial and continuing as to make the original child support amount unconscionable rendered it powerless to modify Gene’s child support obligation pursuant to § 40-4-208(2)(b)(i), MCA.

¶ 13 Nor does the record before us support modification of child support via the parties’ written consent pursuant to § 40-4-208(2)(b)(ii), MCA. While Arneen contends that the provision in the Agreement whereby the parties agreed to review the child support award is Gene’s written consent to modify child support, we recently clarified that a written agreement to review a child support award does not equate to written consent to modify that award. See In re Marriage of Syverson (1997), 281 Mont. 1, 11, 931 P.2d 691, 697. Here, Gene and Arneen agreed only to a periodic review of the child support obligation; there is no written agreement to modify that obligation as contemplated by § 40-4-208(2)(b)(ii), MCA.

¶14 We conclude that, because the threshold requirements contained in §§ 40-4-208 (2)(b)(i) and (ii), MCA, were not met in this case, the District Court was without authority to modify Gene’s original child support obligation. As a result, we hold that the District Court abused its discretion in granting Arneen’s motion to modify Gene’s child support obligation pursuant to § 40-4-208(2)(b), MCA.

¶15 Reversed.

JUSTICES NELSON, HUNT, REGNIER and LEAPHART concur.


text:
    CARIE M. ROSS, Plaintiff and Appellant, v. CITY OF GREAT FALLS, Defendant and Respondent.
    No. 97-594.
    Submitted on Briefs August 20, 1998.
    Decided November 12, 1998.
    1998 MT 276.
    55 St.Rep. 1127.
    291 Mont. 377.
    967 P.2d 1103.

      For Appellant: Frederick F. Sherwood; Reynolds, Motl & Sherwood, Helena.
    For Respondent: Richard Larson, J. Dennis Moreen; Chronister, Moreen & Larson, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

¶1 Carie M. Ross (Ross) appeals from the judgment entered by the Eighth Judicial District Court, Cascade County, on its order granting the City of Great Falls’ (the City) motion for summary judgment and denying her motion for partial summary judgment on the issue of liability in her age discrimination action. We affirm.

¶2 We address the following dispositive issues:

¶3 1. Did the District Court err in concluding that § 7-32-4112(1), MCA (1989), was not impliedly repealed by the enactment of the Montana Human Rights Act and the Governmental Code of Fair Practices?

¶4 2. Did the District Court err in concluding that, even assuming § 7-32-4112(1), MCA (1989), is unconstitutional, the City cannot be held liable for relying on the statute and in granting the City summary judgment on that basis?

BACKGROUND

¶5 In June of 1991, Ross mailed a form letter to a number of police departments in Montana, including the Great Falls Police Department, requesting an application for a police officer position or other entry level position that would lead to a police officer position. In response, she received an application form from the City and a list of the qualifications for a police officer position. Among other things, the qualifications required that the applicant be between the ages of 18 and 35, as provided in § 7-32-4112(1), MCA (1989). Ross was 37 years old at the time. She did not complete the application and return it to the City; nor did she formally apply to any of the other jurisdictions to which she sent letters of inquiry. She did apply for other police officer positions advertised in the newspaper or via Job Service, but was not offered any of those positions.

¶6 Ross filed a complaint with the Montana Human Rights Commission (MHRC) in October of 1991, alleging that the City had discriminated against her on the basis of her age. The MHRC investigator ultimately recommended a finding of reasonable cause to believe wrongful age discrimination had occurred and the MHRC issued a Notice of Right to Sue in September of 1993.

¶7 Ross subsequently sued the City, alleging age discrimination in violation of both the Montana Human Rights Act (MHRA), Title 49, Chapter 2, MCA, and the Governmental Code of Fair Practices (GCFP), Title 49, Chapter 3, MCA. She alleged that she attempted to apply for positions with the Great Falls Police Department and was told she could not do so because of her age. She also alleged that she had experience as a law enforcement officer and that she “otherwise met the qualifications” for the positions. Ross’ complaint further asserted that § 7-32-4112(1), MCA (1989), had been impliedly repealed or, alternatively, that it was unconstitutional.

¶8 The City filed its answer, conducted discovery, and moved for summary judgment. Ross subsequently filed a cross-motion for partial summary judgment on the issue of liability. The District Court granted the City’s motion, denied Ross’ motion and entered judgment accordingly. Ross appeals.

STANDARD OF REVIEW

¶9 “Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.” Ash Grove Cement Co. v. Jefferson County (1997), 283 Mont. 486, 491, 943 P.2d 85, 88; Rule 56(c), M.R.Civ.R We review a district court’s grant of summary judgment de novo, applying the same Rule 56(c), M.R.Civ.R., criteria as the district court. Ash Grove Cement Co., 283 Mont. at 491, 943 P.2d at 88 (citation omitted).

¶10 In the usual summary judgment case, we first determine whether “the moving party met its burden of establishing both the absence of genuine issues of material fact and entitlement to judgment as a matter of law.” Ash Grove Cement Co., 283 Mont, at 491, 943 P.2d at 88 (citation omitted). In the present case, however, the parties agree on the material facts. As a result, the question before us is whether the District Court correctly concluded that the City was entitled to judgment as a matter of law. We review a district court’s conclusions of law to determine whether the interpretation of the law is correct. Ash Grove Cement Co., 283 Mont. at 491-92, 943 P.2d at 89 (citation omitted).

DISCUSSION

¶11 1. Did the District Court err in concluding that § 7-32-4112(1), MCA (1989), was not impliedly repealed by the enactment of the MHRA and the GCFP?

¶12 Before turning to the issue at hand, it is appropriate to set forth the legal backdrop relating to this discrimination action. In her complaint, Ross asserted that the inclusion of a maximum age restriction in the City’s police officer qualification criteria constituted age discrimination in violation of the provisions of the MHRA and the GCFP. The MHRA, enacted in 1974, prohibits refusing employment to a person on the basis of age when the reasonable demands of the position do not require an age distinction. Section 49-2-303(l)(a), MCA. This provision of the MHRA is applicable to all employers, public and private, except for certain nonprofit organizations. Sections 49-2-303(l)(a) and 49-2-101(11), MCA.

¶13 The GCFP was enacted in 1975 and is applicable specifically to state and local governmental entities. It requires all such entities to “recruit, appoint, assign, train, evaluate, and promote personnel on the basis of merit and qualifications without regard to ... age....” Section 49-3-201(1), MCA. The GCFP provides several exceptions to this requirement, including allowing a governmental entity to differentiate based on age when based on a bona fide occupational qualification reasonably necessary to the operation of the entity’s business or where the differentiation is based on reasonable factors other than age. Section 49-3-103(l)(a), MCA.

¶14 The Montana Legislature also has enacted statutory criteria governing the qualifications of all city police officers in Montana. At the time Ross sent her inquiry letter to the Great Falls Police Department, those statutory qualifications were as follows:

(1) The members of the police department on the active list of any city at the time of their appointment under this part may not be less than 18 years of age or more than 35 years of age, but this restriction does not apply to any member of any police department as of July 2,1973, to honorably discharged persons who served in the armed forces of the United States in time of war, providing such time of service is not less than 3 months, or to applicants for reinstatement under 7-32-4110.
(2) A police officer must be a citizen of the United States and meet the minimum qualifying standards for employment promulgated by the board of crime control.

Section 7-32-4112, MCA (1989).

¶15 In its motion for summary judgment, the City argued that the § 7-32-4112(1), MCA, age restriction was a statutory requirement which the City was bound to apply pursuant to § 7-1-113(1), MCA, and, as a result, that it could not be found liable in a discrimination action for merely following state law. Ross responded by arguing that the City could not rely on § 7-32-4112(1), MCA, to justify the age restriction because that portion of the statute had been impliedly repealed by the enactment of the MHRA and the GCFP. The District Court concluded that the maximum age restriction provision of § 7-32-4112(1), MCA, had not been repealed because the Legislature had neither expressly repealed, nor manifested an intent to impliedly repeal, the statute when it enacted the MHRA and the GCFP. Ross contends that the District Court erred in so concluding.

¶ 16 A statute may be repealed by a legislative enactment which expressly provides that the earlier statute is repealed. Alternatively, a statute may be impliedly repealed where a subsequent legislative enactment is clearly and irreconcilably inconsistent with the earlier statute. See, e.g., Trustees, Carbon Cty. Sch. v. Spivey (1991), 247 Mont. 33, 36, 805 P.2d 61, 63; W.R. Grace & Co. v. Dept. of Revenue (1989), 238 Mont. 439, 450, 779 P.2d 470, 476. It is undisputed in this case that neither the MHRA nor the GCFP expressly repealed the maximum age restriction in § 7-32-4112(1), MCA. Thus, if these acts repealed that portion of § 7-32-4112, MCA, at all, they must have done so by implication.

¶17 A number of well-established principles guide our analysis of whether a statute has been impliedly repealed. First and foremost, the repeal of a statute by implication has never been favored in Montana. See, e.g., W.R. Grace & Co., 238 Mont. at 450, 779 P.2d at 476; United States v. 196 Buffalo Robes (1872), 1 Mont. 489, 495. The Montana Legislature is presumed to act with deliberation and with full knowledge of all existing laws on a subject and, as a result, it is further presumed that the Legislature “does not intend to interfere with or abrogate a former law relating to the same matter unless the repugnancy between the two is irreconcilable.” London Guaranty & Accident Co. v. Industrial Acc. Board (1928), 82 Mont. 304, 310, 266 P. 1103, 1105; see also Holly v. Preuss (1977), 172 Mont. 422, 426, 564 P.2d 1303, 1305-06; Fletcher v. Paige (1950), 124 Mont. 114, 119, 220 P.2d 484, 486-87.

¶18 In addition to being plainly and irreconcilably in conflict with each other, the two statutes must relate to the same subject matter and have the same object in view in order for the later statute to impliedly repeal the earlier. Johnson v. Marias River Elec. Co-op., Inc. (1984), 211 Mont. 518, 523-24, 687 P.2d 668, 671. In that regard, however, it is well-established that

“a later statute general in its terms and not expressly repealing a prior special or specific statute, will be considered as not intended to affect the special or specific provisions of the earlier statute, unless the intention to effect the repeal is clearly manifested or unavoidably implied by the irreconcilability of the continued operation of both, or unless there is something in the general law or in the course of legislation upon its subject matter that makes it manifest that the legislature contemplated and intended a repeal.”

Holly, 172 Mont. at 425-26, 564 P.2d at 1305 (quoting State v. Board of Examiners of State (1948), 121 Mont. 402, 417, 194 P.2d 633, 641); see also § 1-2-102, MCA; Spivey, 247 Mont. at 36, 805 P.2d at 63.

¶19 Finally, the rules of statutory construction require us to reconcile statutes if it is possible to do so in a manner consistent with legislative intent. An implied repeal will result only where the terms and necessary operation of a later statute cannot be harmonized with the terms and effect of an earlier statute. Fletcher, 124 Mont. at 119, 220 P.2d at 487; London Guaranty & Accident Co., 82 Mont. at 310, 266 P. at 1105.

¶20 Applying these principles governing implied repeal to the present case, we observe that the MHRA and the GCFP were enacted in 1974 and 1975, respectively, and are general legislative enactments on the subject of discrimination, certain aspects of which concern employment. Section 7-32-4112, MCA (1989), is a statute dealing specifically with the employment of city police officers and the qualifications necessary for such employment. The statutory city police officer qualification criteria contained in § 7-32-4112, MCA (1989), and its predecessor statutes have included maximum age limitations continuously since 1907. Thus, § 7-32-4112, MCA (1989), is a prior specific statute which will prevail over the provisions of the MHRA and the GCFP unless the statutes are manifestly repugnant to — and irreconcilable with — each other. Holly, 172 Mont. at 425-26, 564 P.2d at 1305; State v. Board of County Com’rs (1938), 106 Mont. 251, 256, 76 P.2d 648, 651. ¶21 Both the MHRA and the GCFP have as one of their objects the prohibition of age discrimination in employment. See §§ 49-2-303(l)(a) and 49-3-201(1), MCA. They both limit application of the general prohibition against age discrimination, however, to situations where the reasonable demands of the employment do not justify an age restriction or age is not a bona fide, reasonably necessary occupational qualification. See §§ 49-2-303(l)(a) and 49-3-103(l)(a), MCA. These limitations clearly manifest legislative intent to permit age restrictions in certain employment situations. Thus, although the maximum age restriction in § 7-32-4112(1), MCA, is contrary to the general prohibition against age discrimination in employment set forth in the MHRA and the GCFP, the statutes may be harmonized by viewing § 7-32-4112( 1), MCA, as a statutory limitation on the age discrimination prohibition applicable only to municipal police officers and, thereby, allowed by the express provisions of the MHRA and the GCFP. If harmonized in this manner, § 7-32-4112(1), MCA, and the MHRA and GCFP are not irreconcilably repugnant to each other. ¶22 Moreover, we conclude that the Legislature’s amendments to the statutory predecessor of § 7-32-4112, MCA, both concurrent to enactment of the MHRA and subsequent to enactment of the MHRA and the GCFP, further establish the Legislature’s clear intent to maintain the age restriction for police officers as an exception to the general statutory prohibitions against age discrimination in employment. Prior to the enactment of the MHRA and the GCFP, the Montana Code included two statutes containing age restrictions in the qualifications of city police officers. Section 11-1814, RCM (1947), provided that all members of city police departments must be between 21 and 40 years of age at the time of their appointment to the department, while § 11-1817, RCM (1947), provided that members of a police department on the active list of any city must be between 18 and 35 years of age at the time of appointment. In 1974, the same year the MHRA was enacted, the Legislature amended § 11-1814, RCM (1947), by changing the city police officer age restrictions in that statute to not “less than twenty (20) years of age nor more than forty (40) years of age” and deleting a mandatory retirement provision. See 1974 Mont. Laws Ch. 335, Sec. 12.

¶23 Sections 11-1814 and 11-1817, RCM (1947), subsequently were combined, including both age restrictions, and recodified at § 7-32-4112, MCA (1978). The following year, the Legislature amended § 7-32-4112, MCA, by deleting one set of age restrictions so that the statute provided that

[t]he members of the police department on the active list of any city at the time of their appointment under this part may not be less than 18 years of age or more than 35 years of age ....

See § 7-32-4112(1), MCA (1979), as amended by 1979 Mont. Laws Ch. 263, Sec. 8. This is the version of § 7-32-4112(1), MCA, which was in effect in 1991 when Ross requested information from the City regarding employment as a city police officer.

¶24 As discussed above, when the Legislature enacts or amends statutes, it is presumed to have acted with deliberation and with full knowledge of all existing laws relating to the subject addressed. London Guaranty & Accident Co., 82 Mont. at 310, 266 P. at 1105, Holly, 172 Mont. at 426, 564 P.2d at 1305-06; Fletcher, 124 Mont. at 119, 220 P.2d at 486-87. Furthermore, the general presumption against the implied repeal of a statute is strengthened with regard to the statutory city police officer age restrictions at issue here by the fact that the Legislature amended the age restrictions in § 11-1814, RCM (1947), during the same legislative session it enacted the MHRA. See State ex rel. Charette v. District Court (1939), 107 Mont. 489, 495-96, 86 P.2d 750, 754. As a result, we presume that when the Legislature amended § 7-32-4112, MCA, and its predecessor statutes at various times between 1974 and 1991, it was fully aware of the age discrimination in employment prohibitions contained in the MHRA and, after 1975, in the GCFP, and did not intend that the age discrimination in employment provisions repeal the statutory city police officer age restrictions. See London Guaranty & Accident Co., 82 Mont. at 310, 266 P. at 1105.

¶25 Ross relies on Dolan v. School Dist. No. 10, Deer Lodge Cty. (1981), 195 Mont. 340, 636 P.2d 825 and Taylor v. Dept. of Fish, Wildlife & Parks (1983), 205 Mont. 85, 666 P.2d 1228, however, in arguing that § 7-32-4112(1), MCA, was impliedly repealed because it contains no express language bringing its maximum age restriction within the purview of the age discrimination exceptions in the MHRA and the GCFP. In Dolan, we concluded that § 20-4-203(2), MCA (1977), which mandated teacher retirement at age 65, was impliedly repealed by the MHRA because the mandatory retirement provision permitted discrimination in employment based solely on age without including any qualifying or justifying language which would bring the provision within the scope of the exceptions contained in the MHRA. Dolan, 195 Mont. at 347-48, 636 P.2d at 829. In Taylor, we came to a similar conclusion regarding § 19-8-601(2), MCA (1979), which required game wardens to retire at the age of 60. Taylor, 205 Mont. at 93, 666 P.2d at 1232.

¶26 Although Ross is correct in her assertion that § 7-32-4112, MCA (1989), is similar to the statutes addressed — and held impliedly repealed — in Dolan and Taylor, we observe that neither of those cases addressed the effect of concurrent and subsequent legislative amendments, if any, to the statutes at issue. In light of our discussion above regarding the legislative amendments to § 7-32-4112(1), MCA, and its predecessors, we conclude thatDoZan and Taylor are distinguishable. ¶27 We conclude that the city police officer age restriction contained in § 7-32-4112(1), MCA (1989), is not irreconcilably in conflict with or repugnant to the provisions of the MHRA or the GCFP and that the Montana Legislature did not intend to effect a repeal of that statute by the enactment of the anti-discrimination in employment laws. We hold, therefore, that the District Court did not err in concluding that § 7-32-4112(1), MCA (1989), was not impliedly repealed by the enactment of the MHRA and the GCFP.

¶28 2. Did the District Court err in concluding that, even assuming § 7-32-4112(1), MCA (1989), is unconstitutional, the City cannot be held liable for relying on the statute and in granting the City summary judgment on that basis?

¶29 Ross also argued in the District Court that the City could not rely on § 7-32-4112(1), MCA (1989), to justify the age restriction in its city police officer qualifications because the statute violates the equal protection clauses of the Montana and United States Constitutions. The City argued to the contrary, but also contended that, even if § 7-32-4112(1), MCA, were unconstitutional, the City was immune from liability pursuant to § 2-9-103, MCA.

¶30 The District Court declined to address the constitutionality of § 7-32-4112(1), MCA (1989), based on its conclusion that, even if the statute is unconstitutional, the City is protected from liability for relying on the statute by § 2-9-103, MCA. Ross reasserts her arguments — raised below but not addressed by the District Court — regarding the constitutionality of § 7-32-4112(1), MCA (1989), and also advances several arguments in support of her contention that § 2-9-103, MCA, does not shield the City from liability in this case. We follow the District Court’s lead in dechning to address the constitutionality of § 7-32-4112(1), MCA (1989), because we conclude for the reasons set forth below that, even assuming the statute is unconstitutional, the City is immune from liability under § 2-9-103, MCA.

¶31 Section 2-9-103(1), MCA, provides that

[i]f an officer, agent, or employee of a governmental entity acts in good faith, without malice or corruption, and under the authority of law and that law is subsequently declared invalid as in conflict with the constitution of Montana or the constitution of the United States, neither he nor any other officer or employee of the governmental entity he represents nor the governmental entity he represents is civilly liable in any action in which he, such other officer, or such governmental entity would not have been liable had the law been valid.

Assuming arguendo, then, that § 7-32-4112(1), MCA (1989), is unconstitutional, the City appears to be immune from liability for acting in reliance on a statute later declared constitutionally invalid unless it did not act in good faith and without malice or corruption.

¶32 Ross makes no argument here that the City was not acting in good faith when it relied on the provisions of § 7-32-4112, MCA (1989), to justify the maximum age restriction in its police officer qualification criteria. Nor does she argue that the City acted with malice or corruption.

¶33 Ross does argue, however, that § 2-9-103, MCA, is applicable only to “tort claims” and cannot be applied in claims brought under the MHRA and the GCFR In essence, she contends that, because this statute is found in Title 2, Chapter 9 of the Montana Code Annotated, commonly referred to as the Montana Tort Claims Act (the Act), it only can be applied to claims brought pursuant to the Act. However, § 2-9-103(1), MCA, by its terms, clearly applies to any action brought against a governmental entity or its officers, agents and employees. If the Legislature had intended to limit the application of § 2-9-103(1), MCA, to claims brought pursuant to the Act, it could and would have used the word “claim” — which is specifically defined for purposes of the Act in § 2-9-101(1), MCA — within the statute. We conclude that the immunity from liability contained in § 2-9-103(1), MCA, is not limited to claims brought pursuant to the Act, but applies in any action brought against a governmental entity and its officers, agents and employees.

¶34 Ross next argues that § 2-9-103(1), MCA, is itself unconstitutional because it denies full legal redress to injured parties as guaranteed by Article II, Section 16 of the Montana Constitution. We have held, however, that Article II, Section 16 of the Montana Constitution does not guarantee a fundamental right to any particular cause of action or remedy and that the Legislature has the power to alter or abrogate previously available causes of action and constrict liability. See generally Meech v. Hillhaven West, Inc. (1989), 238 Mont. 21, 776 P.2d 488. Ross does not request us to revisit Meech. Rather, conceding that Meech so holds, Ross asserts that an important factor in that case was that, in enacting the Wrongful Discharge from Employment Act (WDEA), the statutory scheme at issue in Meech, the Legislature had created a statutory cause of action to replace the common law causes of action it had abrogated. See Meech, 238 Mont. at 50-52, 776 P.2d at 505-07. She argues therefrom that § 2-9-103(1), MCA, is not constitutional under the Meech analysis because the statute has taken away a remedy for persons injured by unconstitutional actions without substituting another remedy in its place.

¶35 It is true that, in Meech, we discussed the fact that the Legislature had substituted one remedy for another. Meech, 238 Mont. at 50-52, 776 P.2d at 505-07. That fact was not central to our holding that the WDEA did not deny full legal redress within the meaning of Article II, Section 16 of the Montana Constitution, however. Indeed, we specifically stated that we were not addressing the question of whether such a substitution of remedies was necessary to meet constitutional requirements. Meech, 238 Mont. at 43, 776 P.2d at 501.

¶36 Thus, contrary to Ross’ assertion, Meech does not support her argument that § 2-9-103, MCA, denies full legal redress because the Legislature has taken away a remedy without providing a substitute remedy. Nor does Ross cite to any legal authority which does support that argument. The party challenging the constitutionality of a statute must prove that the statute is unconstitutional beyond a reasonable doubt. Zempel v. Uninsured Employers’ Fund (1997), 282 Mont. 424, 428, 938 P.2d 658, 661. We conclude that Ross has failed to prove that § 2-9-103, MCA, violates Article II, Section 16 of the Montana Constitution beyond a reasonable doubt.

¶37 Ross also argues that § 2-9-103, MCA, is unconstitutional because it violates her right to equal protection of the laws by “treating] those victims of governmental action differently than victims of private torts....” Her argument in this regard is not altogether clear, intertwined as it is with her Article II, Section 16 argument. It appears, however, that she again posits that Meech requires the Legislature to substitute a new cause of action or remedy when it abrogates an old one and contends that its failure to do so in this instance constitutes a denial of equal protection of the laws for persons injured by unconstitutional actions of governmental entities. As discussed above, Ross’ reliance on Meech for the proposition that the Legislature must provide replacement causes of action or remedies when it abolishes former ones is misplaced. Moreover, as was true above, she cites to no other authority for her argument here. We conclude, therefore, that Ross has failed to prove beyond a reasonable doubt that § 2-9-103, MCA, unconstitutionally denies equal protection of the laws to persons injured by governmental acts.

¶38 Ross advances no other argument in support of her contention that § 2-9-103(1), MCA, would not shield the City from liability in this case if § 7-32-4112(1), MCA (1989), is unconstitutional. As aresult, assuming arguendo that § 7-32-4112(1), MCA (1989), is unconstitutional, the City would have acted in reliance on a statute which was “subsequently declared invalid as in conflict with the constitution of Montana or the constitution of the United States...” when it informed Ross that there was a maximum age restriction in its police officer qualifications and it would be immune from liability under § 2-9-103(1), MCA. Consequently, we hold that the District Court did not err in concluding that, even if § 7-32-4112(1), MCA (1989), is unconstitutional, the City cannot be held liable for relying on the statute and in granting the City summary judgment on that basis.

¶39 Affirmed.

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


author: JUSTICE HUNT JUSTICE REGNIER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CHESTER JARMAN, Defendant and Appellant.
    No. 97-696.
    Submitted on Briefs May 14, 1998.
    Decided November 12, 1998.
    1998 MT 277.
    55 St. Rep. 1133.
    291 Mont. 391.
    967 P.2d 1099.

      For Appellant: Mark English, Deputy Public Defender, Billings.
    For Respondent: Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Melanie Logan, Deputy Yellowstone County Attorney, Billings.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶1 Chester Jarman pled guilty to felony possession of dangerous drugs, misdemeanor possession of drug paraphernalia, and felony possession of a concealed weapon in the Thirteenth Judicial District Court, Yellowstone County. He appeals on an issue he reserved before entering his guilty plea. We reverse.

¶2 The issue is whether the District Court erred in determining that the officer who arrested Jarman had the requisite particularized suspicion to stop his vehicle.

¶3 On December 23,1996, at approximately 3:30 a.m., Officer Brian Korell of the Billings, Montana, Police Department responded to a domestic disturbance call. The female who had reported the domestic disturbance as a fight between herself and her boyfriend told Officer Korell and another officer who arrived at her home in response to the call that her boyfriend may be on his way to the Colonial Apartments, about three blocks away.

¶4 Officer Korell drove toward the Colonial Apartments. While doing so, he observed an individual later identified as Chester Jarman standing beside a car at an outside pay telephone. No one else was around and Officer Korell observed no other traffic. Officer Korell drove around the block and back to the pay telephone. By that time, Jarman and his automobile were no longer there. The phone receiver was off the hook.

¶5 Continuing to patrol the area, Officer Korell observed Jarman’s car leaving the parking lot of an apartment complex. Officer Korell initiated a traffic stop during which he discovered a knife in plain view on the front seat of the car. Then, on Jarman’s person, he found illegal drugs and a gun. Officer Korell also learned that outstanding warrants existed against Jarman.

¶6 Jarman moved to suppress all of the evidence found on his person and in his car on grounds that the stop was not supported by a reasonable articulable suspicion that he had engaged in criminal activity. After briefing and a hearing, the court denied the motion to suppress. Jarman subsequently pled guilty to the charges against him, reserving the right to appeal the denial of his motion to suppress.

DISCUSSION

¶7 Did the District Court err in determining that the officer who arrested Jarman had the requisite particularized suspicion to stop his vehicle?

¶8 This Court’s standard of review of a denial of a motion to suppress is whether the district court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Roberts (1997), 284 Mont. 54, 56, 943 P.2d 1249, 1250. A finding is clearly erroneous if it is not supported by substantial evidence, the court has clearly misapprehended the effect of the evidence, or this Court is left with a definite and firm conviction that the district court made a mistake. State v. Doyle, 1998 MT 195, ¶ 10, [290 Mont. 287 ¶10], 963 P.2d 1255, ¶ 10.

¶9 The Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana Constitution protect persons against unreasonable searches and seizures of their persons, including brief investigatory stops such as stops of vehicles. See United States v. Cortez (1981), 449 U.S. 411, 417, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621, 628. An investigatory stop must be justified by some objective manifestation that the person stopped is or is about to be engaged in criminal activity. Brown v. Texas (1979), 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357, 362. To stop a person, an officer must have a particularized and objective basis for suspecting the particular person of criminal activity. Brown, 443 U.S. at 51, 99 S.Ct. at 2640-41, 61 L.Ed.2d at 362.

¶10 Montana has codified the standard for an investigatory stop of a person or vehicle at § 46-5-401, MCA:

In order to obtain or verify an account of the person’s presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.

This Court has held that in order to show sufficient cause to stop a vehicle, the burden is on the State to show: (1) objective data from which an experienced police officer can make certain inferences; and (2) a resulting suspicion that the occupant of the vehicle is or has been engaged in wrongdoing or was witness to criminal activity. State v. Gopher (1981), 193 Mont. 189, 194, 631 P.2d 293, 296.

¶ 11 In this case, the District Court stated in its findings that Officer Korell suspected that Jarman might have been the individual involved in the domestic disturbance to which he had responded. This finding is supported by substantial evidence in the form of Officer Korell’s testimony. However, Officer Korell’s testimony in this regard was not based upon reasonable inferences from objective data. Although, as the State points out, experienced law enforcement officers are allowed to draw conclusions which laymen could not properly draw, Gopher, 193 Mont. at 193, 631 P.2d at 295, nothing in this record connected Jarman to the domestic disturbance other than the fact that he was the only male Officer Korell observed in the area. Moreover, Officer Korell admitted that he did not mention in his police report that he stopped Jarman’s car because he was a suspect in the disturbance; he voiced this rationale for the first time at the suppression hearing.

¶12 The District Court also found that “Officer Korell thought defendant was trying to elude him.” This finding, while also supported by Officer Korell’s testimony at the suppression hearing, is not based on reasonable inferences. Officer Korell conceded during his testimony that if Jarman had wanted to avoid him after being spotted at the pay phone, he could have been several miles away from the area by the time Officer Korell saw him driving out of the apartment complex parking lot only a few blocks away. Officer Korell could not have logically concluded that Jarman was attempting to elude him by continuing to drive around in the area in which Officer Korell had just seen him.

¶13 The District Court concluded that the only issue raised by Jarman in his motion to suppress was the legality of the stop. The court then concluded that “Officer Korell had a particularized suspicion that defendant had committed an offense to authorize a stop ..., considering the totality of the circumstances existent at the time of the stop.”

¶14 Being in a high crime area by itself does not give the police a particularized suspicion to stop a person. Brown, 443 U.S. at 52, 99 S.Ct. at 2641, 61 L.Ed.2d at 362-63. In Brown, police officers in El Paso, Texas, noticed two men walking in opposite directions away from each other in an alley in an area with a high incidence of drug traffic. The officers stopped one of the men, Brown, who they had not seen in the area before, and asked him to identify himself. Brown refused, and was arrested for and convicted of violating a Texas statute making it a crime to refuse to give one’s name and address to a police officer who requested that information after a lawful stop. The United States Supreme Court reversed, declaring that application of the Texas criminal statute to Brown under these circumstances violated the Fourth Amendment. The Court held that the officers lacked any reasonable suspicion to believe that Brown was engaged in or had engaged in criminal conduct, stating that in the absence of any basis for suspecting Brown of misconduct, the balance between the public interest in preventing crime and Brown’s right to personal security and privacy tilted in favor of freedom from police interference. Brown, 443 U.S. at 52-53, 99 S.Ct. at 2641, 61 L.Ed.2d at 363.

¶15 In the present case, after discounting the testimony to the effect that Jarman may have been involved in the domestic disturbance and that Jarman was trying to elude Officer Korell, the remaining offered justifications for stopping Jarman are the observation of Jarman talking on a pay phone on a cold night in a high crime area and then, after Officer Korell drove around the block, Jarman’s absence and the telephone receiver hanging down off the hook. These facts do not rise to the level of a reasonable and articulable suspicion that Jarman was, had been, or was about to engage in criminal activity. Without any connection to the domestic disturbance or reasonable suspicion of evasion, Officer Korell had no reason to stop Jarman. We hold that the District Court’s conclusion that Officer Korell had a particularized suspicion was erroneous.

¶ 16 Because the stop was therefore illegal, the subsequent search of Jarman’s person and his automobile are tainted by the illegal stop. The evidence found as a result of the searches must be suppressed. The District Court’s decision on Jarman’s motion to suppress is reversed and this matter is remanded to the District Court for further proceedings consistent with this Opinion.

JUSTICES GRAY, LEAPHART AND TRIEWEILER concur.

JUSTICE REGNIER

dissenting.

¶ 17 I dissent from the majority’s conclusion that the District Court erred in determining that Officer Korell, when considering the totality of the circumstances, had a particularized suspicion to stop Jarman.

¶ 18 The maj ority concedes that the District Court’s critical findings were supported by substantial evidence: first, there was substantial evidence to support Officer Korell’s suspicion that Jarman was the person involved in the domestic disturbance and, second, there was substantial evidence to support Officer Korell’s conclusion that the defendant was trying to elude him. The majority then wrongly concludes, in my view, that the officer’s testimony was not based upon reasonable inferences from objective data.

¶19 At approximately 3:00 on a Monday morning, Officer Korell was responding to a report of a domestic disturbance involving a woman and her boyfriend. When Korell arrived at the woman’s home, he was informed that the suspect was heading toward an apartment complex about three blocks away. En route to the apartment complex, Officer Korell saw only one person in the area, a man standing next to a car by a pay telephone. It was twenty degrees below zero and indoor phones were available at nearby convenience stores. There was no other traffic in the area. The man appeared to be about the same age as the reported suspect.

¶20 Officer Korell thought it was suspicious that someone would use an outdoor pay phone when it was twenty degrees below zero and there were indoor phones available. Officer Korell then drove around the block and returned, but the phone had been left dangling off the hook and Jarman’s vehicle was not in the area. Korell testified that it was obvious to him that the man he observed had left in a hurry. As Korell continued to patrol the area, he observed Jarman’s vehicle leaving the parking lot of an apartment complex. Officer Korell then initiated the stop.

¶21 The maj ority essentially takes issue with inferences drawn by Officer Korell when faced with these facts. First, the majority points out that there was nothing in the record to connect Jarman to the domestic disturbance other than he was the only male observed in the area. The majority then focuses on Officer Korell’s admission at the suppression hearing that if Jarman was trying to elude him after being spotted at the pay phone, he could have been several miles away from the area where he was ultimately stopped.

¶22 It is apparent from the record, however, that Officer Korell was suspicious of Jarman not just because he was the only male he observed on the streets. Korell was responding to criminal activity that had just occurred; Jarman appeared to be the same age as the reported suspect; and he was the only person in the vicinity where Officer Korell had just been told the suspect could be found. Yet, Officer Korell did not stop Jarman when he first saw him. He drove around the block and when he returned Jarman and his car were gone and the phone was dangling off the hook. This convinced Korell that Jarman was trying to elude him. At that point, Korell had a particularized suspicion to stop the defendant. The fact that Jarman traveled only a short distance from the pay phone to the apartment complex instead of further away to elude Officer Korell is immaterial. Korell already had a particularized suspicion to stop Jarman before he found him in the parking lot.

¶23 In summary, I believe the investigatory stop complied with the standards set forth in § 46-5-401, MCA and our guidelines in State v. Gopher (1981), 193 Mont. 189, 194, 631 P.2d 293, 296. The District Court properly denied Jarman’s motion to suppress.

CHIEF JUSTICE TURNAGE and JUSTICE NELSON join in the foregoing dissenting opinion.