text:
    STATE OF MONTANA, Plaintiff and Appellant, v. JOHN LILBURN, Defendant and Respondent.
    No. 93-404.
    Submitted April 19, 1994.
    Decided June 9, 1994.
    51 St.Rep. 507.
    875 P.2d 1036.
    265 Mont. 258.

      For Appellant: Joseph P. Mazurek, Attorney General, Chris Tweeten (argued), Chief Deputy Attorney General, Helena; Mike Salvagni, Gallatin County Attorney, Bozeman.
    For Respondent: Richard Ranney (argued) and Shelton Williams, Williams & Ranney, Noel K. Larrivee, Larrivee Law Offices, Missoula.
    For Amicus Curiae: Lon J. Dale, Milodragovich, Dale & Dye, Missoula, (Montana Shooting Sports Association, Inc., Western Montana Fish and Game Association, Inc., and Michigan United Conservation Clubs).
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Defendant John Lilbum was charged in the Gallatin County Justice Court with the offense of hunter harassment in violation of § 87-3-142(3), MCA. He was convicted of that charge following a jury trial and appealed his conviction to the District Court for the Eighteenth Judicial District in Gallatin County. The District Court held that § 87-3-142, MCA, in its entirety, is facially unconstitutional in that it is both overbroad and vague, impermissibly infringing on the First Amendment right to free speech and the Fourteenth Amendment right to due process guaranteed by the United States Constitution.

We reverse the District Court.

The State raises the following issues on appeal:

1. Is Montana’s Hunter Harassment Law, found at § 87-3-142, MCA, void because it is overbroad in violation of the First Amendment to the United States Constitution?

2. Is § 87-3-142, MCA, void because of vagueness in violation of the Fourteenth Amendment to the United States Constitution?

In March 1990, the Department of Fish, Wildlife, and Parks (DFWP) allowed three persons whose names had been drawn from a permit pool to hunt bison which had migrated from Yellowstone National Park. One of the persons who received a permit was Hal Slemmer.

On the morning of the hunt, when the DFWP personnel located the bison, a group of 11 persons on snowmobiles and cross-country skis were seen attempting to herd the bison back into the park. The demonstrators were warned that this was a legal hunt, and were told not to interfere with the hunters. The hunters were also warned about the presence of the demonstrators and were cautioned to conduct the hunt safely.

Warden David Etzwiler of the DFWP accompanied Slemmer to a clearing where the bison were crossing. When one of the animals was in sight, Slemmer sighted his rifle and prepared to pull the trigger. At that time, John Lilburn, one of the protesters, moved in front of Slemmer, placing himself between Slemmer and the targeted bison at a distance of 10 to 12 feet from the muzzle of Slemmer’s rifle. Slemmer lifted his rifle when he saw Lilburn’s head and shoulders come into the scope of the gun. Warden Etzwiler approached Lilburn and told him that this was a lawful hunt and not to interfere. Slemmer moved about six feet to his left and selected another bison from the group. He raised his rifle and took aim through the scope. Lilburn again moved in front of Slemmer. Slemmer testified that when he saw Lilburn’s face in his scope, he “jerked the gun up quickly because I had been squeezing on the trigger.”

Warden Etzwiler and Slemmer got on their snowmobiles and moved to a different area where Slemmer shot and killed a bison before Lilburn and the other protesters caught up with them.

No arrests were made at that time. However, after DFWP officials conferred with the Gallatin County Attorney, Lilburn was charged with the offense of harassment, a misdemeanor, in violation of § 87-3-142(3), MCA. The complaint filed against Lilburn in the Gallatin County Justice Court alleged that he disturbed a hunter with the intent to dissuade or prevent the taking of a bison when he placed himself between the bison and the hunter who was aiming a loaded rifle at the animal.

None of the other protesters were charged with a violation of this same statute.

Lilburn filed a declaratory judgment action in Federal District Court challenging the constitutionality of § 87-3-142(3), MCA, on a First Amendment basis. The U.S. District Court dismissed Lilburn’s complaint, holding that there were no special circumstances warranting federal intervention in an ongoing state criminal action, and therefore, Lilburn’s case did not merit an exception to the abstention doctrine enunciated in Younger v. Harris (1971), 401 U.S. 37, 91 S.Ct. 746, 27 L. Ed. 2d 669. As a basis for its conclusion, the Federal Court concluded that the goal of the statute “is clearly reasonable” because “hunting is a legitimate activity which the state may protect in any reasonable and constitutionally permissible manner” and that this statute primarily “proscribes behavior which interferes with an individual actually engaged in the lawful taking of a wild animal.”

The Ninth Circuit Court of Appeals Subsequently affirmed the U.S. District Court’s dismissal of Lilburn’s constitutional challenge. Lilburn v. Racicot (9th Cir. July 13, 1992), No. 91-35310.

Lilburn was convicted following a jury trial in Gallatin County Justice Court. He appealed his conviction to the District Court and alleged that the harassment statute was unconstitutionally over-broad and vague. By order dated June 24, 1993, the District Court reversed the conviction and dismissed the complaint brought against Lilburn based on its determination that § 87-3-142, MCA, is unconstitutional on its face, and therefore, is invalid. The State appeals.

STANDARD OF REVIEW

A legislative enactment is presumed to be constitutional and will be upheld on review except when proven to be unconstitutional beyond a reasonable doubt. City of Billings v. Laedeke (1991), 247 Mont. 151, 154, 805 P.2d 1348, 1349 (citing Fallon County v. State (1988), 231 Mont. 443, 445-46, 753 P.2d 338, 339-40).

ISSUE 1

Is Montana’s Hunter Harassment Law, found at § 87-3-142, MCA, void because it is overbroad in violation of the First Amendment to the United States Constitution?

The statute at issue in this appeal, commonly known as Montana’s Hunter Harassment Law, provides as follows:

87-3-142. Harassment prohibited. (1) No person may intentionally interfere with the lawful taking of a wild animal by another.
(2) No person may, with intent to prevent or hinder its lawful taking, disturb a wild animal or engage in an activity or place in its way any object or substance that will tend to disturb or otherwise affect the behavior of a wild animal.
(3) No person may disturb an individual engaged in the lawful taking of a wild animal with intent to dissuade the individual or otherwise prevent the taking of the animal.
(4) Nothing in this section prohibits a landowner or lessee from taking reasonable measures to prevent imminent danger to domestic livestock and equipment.

Lilburn was convicted of violating subsection (3) of this statute because he twice disturbed Slemmer’s attempt to lawfully shoot a bison when he placed his body between Slemmer and the animal. The District Court, in its analysis of subsection (3) for overbreadth, concluded that § 87-3-142(3), MCA is “obviously content-based” because it “prohibits communication which is intended to dissuade a person from hunting, while allowing communication which encourages hunting.” The court further concluded that the statute’s prohibition would encompass “all verbal and expressive conduct which has the intention to dissuade from hunting,” and therefore, such things as “prayer vigils at trailheads, the singing of protest songs or the burning of hunting maps, if done with the intent to dissuade a hunter, would be violations of the statute.” Therefore, the court held that to the extent the statute “implicates constitutionally protected speech and expressive conduct, it is overbroad.”

On appeal, the State contends that the court erred when it invalidated § 87-3-142(3), MCA, on the basis of overbreadth because the statute primarily proscribes conduct rather than speech, and to the extent that protected expression is reached, it regulates on a content-neutral basis only the time, place, and manner of expression. The State asserts that the statute is not overbroad because any potential unconstitutional applications are speculative and insubstantial when judged against the plainly legitimate scope of this statute which is to promote safety in sport hunting and protect those engaged in lawful activities from interference. We agree.

We note first that Lilburn has raised a facial constitutional challenge and does not aver that the statute, as applied to him, unconstitutionally abridges his First Amendment guarantee of freedom of speech. Lilburn was not charged on the basis of any idea or view that he expressed, and he does not contend that his own conduct, which formed the basis of the charges brought against him, was constitutionally protected. Instead, he contends that the statute, as written, could potentially reach a substantial amount of protected speech or expressive conduct.

A facial overbreadth challenge is an exception to the general rule that statutes are evaluated in light of the situation and facts before the court. R.A.V. v. St. Paul (1992), 112 S.Ct. 2538, 2558, 120 L.Ed.2d 305, 336, (J. White, concurring) (citing Broadrick v. Oklahoma (1973), 413 U.S, 601, 610, 93 S. Ct. 2908, 2915, 37 L. Ed. 2d 830, 838-39). This Court has similarly recognized that a statute which can be applied to constitutionally protected speech and expression may be found to be invalid in its entirety, even if it could validly apply to the situation before the court. City of Whitefish v. O’Shaughnessy (1985), 216 Mont. 433, 704 P.2d 1021.

In his overbreadth challenge, Lilburn disputes the State’s assertion that the statute primarily regulates conduct but contends that it criminalizes a broad category of speech and expressive conduct based on its content. He claims that the law reaches primarily conduct which conveys an anti-hunting sentiment, while allowing, under exactly the same circumstances, conduct and speech which conveys any other message. Lilburn cites R.A.V. v. St. Paul, 112 S.Ct. at 2542, 120 L. Ed. 2d at 316, for the proposition that the statute is “facially unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.”

Broadrick, 413 U.S. at 601, 93 S.Ct. 2908, is the leading case addressing the First Amendment overbreadth doctrine. In Broadrick, the Supreme Court clarified that a statute or government regulation should be invalidated on the basis of facial overbreadth in only limited situations:

In such cases, it has been the judgment of this Court that the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes....
... Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute. [Citations omitted].

Broadrick, 413 U.S. at 612-13, 93 S.Ct. at 2916. The Court in Broadrick adopted limitations on the overbreadth doctrine “particularly where conduct and not merely speech is involved,” and held that a statute which has constitutional applications may be facially invalidated for overbreadth only if its overbreadth is “real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at 615, 93 S.Ct. at 2918. The Court made clear that the existence of imaginary potential unlawful applications does not by itself render a statute facially overbroad. Broadrick, 413 U.S. at 615, 93 S.Ct. at 2918.

In Members of the City Council v. Taxpayers for Vincent (1984), 466 U.S. 789, 800-01, 104 S. Ct. 2118, 2126, 80 L. Ed. 2d 772, 783-84, the Supreme Court further explained the parameters of the overbreadth doctrine:

It is clear ... that the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge. On the contrary, the requirement of substantial overbreadth stems from the underlying justification for the overbreadth exception itself — the interest in preventing an invalid statute from inhibiting the speech of third parties who are not before the Court. ... In short, there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.

After reviewing the statute in question and the arguments set forth by Lilburn, we conclude that this is precisely the type of situation where the limitations imposed by the Supreme Court on the over-breadth doctrine must be carefully applied. Before the hunter harassment statute can be invalidated on its face, there must be a clear showing that the potential invalid applications of the statute be both “real and substantial.” For the reasons stated below, we conclude that no such showing has been made in this case.

Under the tests articulated in Broadrick and Taxpayers for Vincent, we must determine whether there is a real and substantial probability that § 87-3-142(3), MCA, will compromise recognized First Amendment protections when judged in relation to any “plainly legitimate sweep” of the statute.

The District Court based its holding regarding overbreadth on its determination that the statute is “obviously content-based” and could potentially proscribe

all verbal and expressive conduct which has the intention to dissuade from hunting. Conduct such as prayer vigils at trailheads, the singing of protest songs or the burning of hunting maps, if done with the intent to dissuade a hunter, would be violations of the statute. [Emphasis added].

It was the court’s opinion that the statute prohibits communication which is intended to dissuade a person from hunting, while allowing a communication which encourages hunting, even if such communication prevents or distracts a hunter from taking the prey. While this analysis was not necessary to an overbreadth analysis under Broadrick, we also disagree with this interpretation of the statute.

All statutes carry with them a presumption of constitutionality and it is a duty of the courts to construe statutes narrowly to avoid constitutional difficulties if possible. Montana Automobile Association v. Greely (1981), 193 Mont. 378, 382, 632 P.2d 300, 303; State v. Ytterdahl (1986), 222 Mont. 258, 261, 721 P.2d 757, 759. This Court made clear that, when construing a statute, it must be read as a whole, and terms used in the statute should not be isolated from the context in which they are used by the Legislature. McClanathan v. Smith (1980), 186 Mont. 56, 61, 606 P.2d 507, 510. Furthermore, a statute must be construed according to the plain meaning of the language used therein. Norfolk Holdings, Inc. v. Department of Revenue (1991), 249 Mont. 40, 43, 813 P.2d 460, 461.

Section 87-3-142(3), MCA, prohibits a person from disturbing another individual engaged in the lawful taking of a wild animal with intent to dissuade the individual or otherwise prevent the taking of the animal. The term “wild animal” is defined to mean “any game animal, fur-bearing animal, or predatory animal,” and a “taking” is defined to include “pursuit, hunting, trapping, shooting, or killing of a wild animal on land upon which the affected person has the right or privilege to pursue, hunt, trap, shoot, or kill the wild animal.” Section 87-3-141, MCA.

The plain language of the statute, considered in light of these limiting definitions, makes clear that the statute’s proscriptions reach only activities which occur in the field during an otherwise lawful hunt. While the disturbance which is prohibited may, under other circumstances, result from a verbal utterance, it makes no difference what the content of the verbal utterance is. The language of the statute does not support the assertion that the statute is aimed primarily at pure speech and expressive conduct conveying only an anti-hunting sentiment. The disturbance could just as well be caused by shouting “fire!”

Lilburn disagrees that the statute regulates primarily conduct and claims that the Legislature’s inclusion of the word “dissuade” demonstrates that the intent of the statute is to proscribe only a very small class of expression which is uttered or carried out with the intent to dissuade a hunter from taking an animal. He contends it is the Legislature’s use of the term “dissuade” that renders this a content-based regulation.

The Supreme Court has provided clear guidelines for distinguishing a content-neutral regulation from one which is impermissibly content-based:

The principal inquiry in determining content neutrality ... is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government’s purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. [Citation omitted].

Ward v. Rock Against Racism (1989), 491 U.S. 781, 791, 109 S. Ct. 2746, 2754, 105 L. Ed. 2d 661, 675. The determination of whether a regulation is content-based turns not on whether its incidental effects fall more heavily on expression of a certain viewpoint, but rather on whether the governmental purpose to be served by the regulation is not motivated by a desire to suppress the content of the communication. City of Renton v. Playtime Theatres, Inc. (1986), 475 U.S. 41, 106 S. Ct. 925, 89 L. Ed. 2d 29. Therefore, even if a statute has a discriminatory impact, it can be determined to be content-neutral if its objective neither advances nor inhibits a particular viewpoint.

Neither of the parties dispute the fact that safety and an orderly regulation of hunting are legitimate state goals. This Court has made clear that “[i]n the area of wildlife regulation, it is sufficient to state the Legislature may impose such terms and conditions as it sees fit, as long as constitutional limitations are not infringed.” State v. Jack (1975), 167 Mont. 456, 460, 539 P.2d 726, 728.

Here, the legislative history demonstrates a motivation for adoption of this statute which is unrelated to the suppression of speech based on content. The Legislature was aware that confrontations between hunters and opponents of sport hunting, particularly with respect to the controversial bison hunts, could occur in the field when hunters were armed and actively pursuing their prey. It was recognized that this posed a serious danger to both the hunters and those interfering with their activities.

Contrary to the court’s conclusion that the legislation was obviously content-based because it was prompted by past activities opposing the bison hunts, the legislative history supports a conclusion that the motivation was to prevent violent confrontations and to prevent interference with lawful activities. Moreover, we do not find any support in the legislative history for the contention that this was an attempt to silence the views of those opposed to the bison hunt or other types of sport hunting. It was recognized that persons opposed to sport hunting had the right to express their views, but that there were other forums more suited to political discourse.

While Lilburn asserts that the use of the word “dissuade” relates the statute entirely to speech and expressive conduct, we note that the Legislature did not use the word “dissuade” in isolation. Reading the statute as a whole, it is clear that the conduct proscribed is the “disturbance” of a hunter engaged in a lawful activity, when it is done with the intent to either dissuade the hunter or to prevent the taking of the animal. The fact that speech or actions may disturb a hunter is not dependent on the content of what is expressed, or whether it is prompted by an anti-hunting sentiment. A person could blurt out anything at the moment a hunter is trying to shoot, and this could “disturb” the hunter by distracting him or her, or by scaring the animal away. The content of what was said would be irrelevant. Or, persons could attempt to prevent the taking of the animal for reasons other than opposition to hunting, such as a desire to shoot the animal themselves. Furthermore, in either of these instances, before the conduct would be culpable, the necessary scienter would have to be proven.

We recognize that the consequences of this statute may fall more heavily on persons opposed to hunting than on those with different viewpoints, but this does not by itself render the statute content-based. The existence of a content-neutral motivation for the statute is all that is required under Ward and Renton to refute the characterization that the statute impermissibly regulates speech or conduct based on the message conveyed. We are satisfied that such a motivation exists in this instance. Therefore, we reject the District Court’s conclusion that the statute is content-based.

Even though we disagree with the District Court’s rationale for a holding of overbreadth, we realize, as conceded by the State, that there may be instances where protected expression or pure speech may violate the statute. However, before invalidating the statute on the basis of overbreadth, we must consider the limitations set forth in Broadrick to determine if the possible unconstitutional applications are real and substantial when judged in relation to the plainly legitimate scope of the statute.

Lilburn contends that there are a significant number of situations where the law could be applied in an unconstitutional manner and urges the Court to “use our imagination to think of the various ways the statute might be applied against speech or expressive conduct.” However, the test is not whether hypothetical remote situations exist, but whether there is a significant possibility that the law will be unconstitutionally applied. Broadrick, 413 U.S. at 615, 93 S.Ct. at 2918.

Based on our conclusion that the plain language of the statute is directed primarily at conduct and if at speech, then without regard to its content, we conclude, in the absence of evidence otherwise, that Lilburn has not shown that any overbreadth of the statute is “substantial ... judged in relation to the statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at 615, 93 S.Ct. at 2918.

Finally, we address the District Court’s comparison of the Montana statute to a Connecticut hunter harassment statute which was held unconstitutional on the basis of overbreadth. Dorman v. Satti (D. Conn. 1988), 678 F. Supp. 375, aff’d, 862 F.2d 432 (2nd Cir. 1988), cert. denied (1989), 490 U.S. 1099, 109 S. Ct. 2450, 104 L. Ed. 2d 1005.

The Federal District Court, when it rejected Lilburn’s constitutional challenge, noted that Montana’s hunter harassment statute is distinguishable from the Connecticut statute, and does not unconstitutionally interfere with free speech. In Dorman, the statute reached conduct which interfered with both the actual taking of game and with “acts in preparation” for the taking of game. The court held that the statute could legitimately proscribe interference with “lawful taking,” but not “acts in preparation”:

So long as the legislature elects to permit hunters to pursue their activity on property, during times, and under circumstances set aside for that purpose, it may also regulate the conduct of nonhunters in those contexts. Considerations of safety, alone, would justify such regulation, even if it impinges incidentally upon protected speech. On the other hand, the propriety of hunting and taking wildlife is a fair subject for spirited debate. Once a hunter is outside the scope of his “lawful hunt” he is no different from any other unreceptive listener who must, “in vindication of our liberties,” be “exposed to the onslaught of repugnant ideas.” [Emphasis added],

Dorman, 678 F. Supp. at 383.

The statute at issue in this case, § 87-3-142(3), MCA, is clearly limited in scope to activities which interfere with persons actively engaged in the lawful taking of an animal and does not suffer from the same overbreadth as the statute in Dorman.

We hold that § 87-3-142(3), MCA, is not unconstitutionally overbroad. To the extent that the statute may reach constitutionally protected expression, we conclude, as did the Supreme Court in Broadrick, 413 U.S. at 615-16, 93 S.Ct. at 2917-18, that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations where the statute is assertedly being applied unconstitutionally.

ISSUE 2

Is § 87-3-142, MCA, void because of vagueness in violation of the Fourteenth Amendment to the United States Constitution?

The District Court also invalidated the hunter harassment statute on the basis of vagueness. The court concluded that several key terms are left undefined, and that the statute impermissibly leaves to the discretion of law enforcement and the courts, without specific statutory guidance to law enforcement officers or the public at large, what type of conduct is prohibited.

In Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc. (1982), 455 U.S. 489, 497, 102 S. Ct. 1186, 1193, 71 L. Ed. 2d 362, 371, the Supreme Court set forth guidelines for analyzing a facial challenge on the basis of overbreadth and vagueness. When such a challenge is raised, a court must first determine whether the enactment reaches a substantial amount of constitutionally protected conduct. Here we have concluded that the statute does not, and that the overbreadth challenge must fail. The Supreme Court has also made clear that if the challenged statute is reasonably clear in its application to the conduct of the person bringing the challenge, it cannot be stricken on its face for vagueness. Hoffman Estates, 455 U.S. at 494-95, 102 S.Ct. at 1190-91. “One to whose conduct a statute clearly applies may not successfully challenge it for vagueness. Parker v. Levy (1974), 417 U.S. 733, 756 [94 S.Ct. 2547, 2562, 41 L.Ed.29 439].”Hoffman Estates, 455 U.S. at 495 n.7, 102 S.Ct. at 1191 n.7.

In this instance, regardless of the hypothetical situations that may exist, Lilburn’s conduct was unquestionably proscribed by the hunter harassment statute. Lilburn intentionally twice stood between Slemmer and the targeted bison, directly in the line of fire, in order to prevent the animal from being shot. It is difficult to conceive of an argument that Lilburn did not “disturb” Slemmer while Slemmer was engaged in the lawful taking of a wild animal with the intent to prevent or dissuade him from making the shot.

We conclude that Lilburn does not have standing to raise a facial vagueness challenge. The court’s order with respect to the issue of vagueness is reversed on this basis.

We reverse the District Court’s conclusion that the statute under which Lilburn was charged is impermissibly overbroad and vague, and vacate the court’s dismissal of the charges brought against Lilburn. Furthermore, although Lilburn’s constitutional challenge focused only on subsection (3) of the statute, the language of the District Court’s order invalidated § 87-3-142, MCA, in its entirety. We find no basis in the record for the court’s determination that the remaining sections of the statute are constitutionally deficient. We, therefore, reverse the order of the District Court with regard to all parts of § 87-3-142, MCA.

This case is remanded to the District Court for further proceedings consistent with this opinion.

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


source: Caselaw Access Project

author:
      JUSTICE WEBER
      JUSTICE NELSON

license: Public Domain

text:
    RICHARD C. BOSSARD, Plaintiff and Appellant, v. JERALD J. JOHNSON, Defendant and Respondent.
    No. 93-551.
    Submitted on Briefs March 17, 1994.
    Rehearing Denied June 30, 1994.
    Decided June 2, 1994.
    51 St.Rep. 494.
    876 P.2d 627.
    265 Mont. 272.

      For Appellant: John E. Bohyer, Phillips & Williams, Missoula.
    For Respondent: Bradley J. Luck, Garlington, Lohn & Robinson, Missoula.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a grant of summary judgment to defendant by the Fourth Judicial District Court, Missoula County. We affirm.

We consider the following issue on appeal:

Did the District Court err by granting summary judgment to defendant and not granting partial summary judgment to plaintiff on the issue of liability?

Plaintiff Richard Bossard (Bossard) and Jerald Johnson (Johnson) were friends who had been in the construction business together. Bossard is also a realtor who sold Johnson the property which is involved in this action.

The property bought by Johnson contains a house and a storage shed. On the day of the accident, Johnson and Bossard were unloading 80 to 100 pound modified stove boards and placing them in the shed.

When the men were finished with this task, they exited the front sliding door and shut it. During this closing, the roller on one end of the door came out of its U-shaped track because there were no “stops” at the end of its tracking slot. Bossard testified by deposition that when the door rolled off the end of the track, that end of the door dropped to the ground. The roller for the other end of the door remained in the track.

Neither Bossard nor Johnson were injured by the door’s fall. In his deposition Bossard testified that he alone may have lifted the door or that he and Johnson may have lifted the door in order to place it back on the track. Bossard testified that the initial attempt to lift the door was not successful. During the second successful lift of the door which placed the roller back in its slot, he testified he felt pain in his arm. Bossard later learned that the pain was caused by a ruptured right biceps tendon. After the injury an embolism formed which caused serious impairment to the use of his right arm.

Bossard filed this negligence action on March 23,1993, seeking to recover damages for his injuries. Johnson filed a motion for summary judgment on July 1,1993. On July 12,1993, Bossard filed a cross-motion for partial summary judgment on the issue of Johnson’s liability.

The District Court entered its opinion and order on September 10, 1993, granting Johnson’s motion for summary judgment and denying Bossard’s motion for partial summary judgment. Bossard appeals the court’s grant of summary judgment to Johnson and its denial of his own motion for partial summary judgment.

Did the District Court err by granting summary judgment to defendant and not granting partial summary judgment to plaintiff on the issue of liability?

In order for summary judgment to issue, the movant must demonstrate there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R If movant meets this burden, the burden then shifts to the party opposing summary judgment to demonstrate genuine issue of material fact. Richland National Bank and Trust v. Swenson (1991), 249 Mont. 410, 816 P.2d 1045.

Bossard contends that he was injured on Johnson’s property and that Johnson is liable for those injuries. Bossard testified that after the door slipped from the track, it came to rest on the ground in a precarious position. While Bossard does not identify any person or property which was in danger of injury, he contends that the “rescue doctrine” allowed him to place the door back on its track, and then to recover from Johnson because he was injured trying to remove the danger. Bossard also argues that Johnson knew about the lack of “stops” on the track, but negligently failed to put in stops or to warn him of the danger. Finally, Bossard contends that because of the contradiction in statements when Johnson’s first affidavit is compared to his second affidavit, there is a question of material fact which precludes summary judgment.

Johnson responds by contending that the “rescue doctrine” is not applicable to the facts in this case. Johnson further contends that he had no legal duty to Bossard and that a negligence action is inappropriate. He contends that as a landowner, he had no duty to warn Bossard about the door because the door was not a hidden or lurking danger. In addition Johnson contends that the action of lifting the door back on its track does not represent a foreseeable danger as each of the men had just finished lifting objects of the same weight. Finally Johnson contends there is no issue of material fact when his two affidavits are compared.

We will first discuss the “rescue doctrine.” In Kiamas v. Mon-Kota (1982), 196 Mont. 357, 639 P.2d 1155, this Court emphasized the necessity of an actual danger of injury to person or property and a definite emergency before the rescue doctrine could be applied, stating:

It may be noted that both Justice Cardozo and Professor Prosser emphasize that danger of injury or damage to person or property is the element which invites rescue. “The emergency begets the man.”

Kiamas, 196 Mont. at 361, 639 P.2d at 1158. In Kiamas, the plaintiff was injured while attempting to help the Mon-Kota drivers change the wheel spacing on its tractors. This Court further stated the following with regard to the absence of an emergency:

The possibility of harm was eliminated by Mon-Kota stopping its tractors and the drivers’ agreement to change the wheel spacing so there would be no further damage to the Kiamas crops or lands. Not only is there an absence of an emergency described above, there is a total absence of need for action to prevent harm.

Kiamas, 196 Mont. at 363, 639 P.2d at 1159. In the present case, the District Court stated:

In this instance, the door came off its track, and one end rested on the ground. No immediate danger resulted from the door coming off its track.

As the door sat, it did not represent a threat of injury to either of the men present nor to the property itself. As in Kiamas, we here conclude that no danger of injury or damage to person or property existed. We conclude that because no emergency existed, there was no need for action to prevent harm so the rescue doctrine is not applicable to the facts of the present case.

With regard to Bossard’s claim of negligence, he argues that because he was injured on Johnson’s property, Johnson is responsible for his injury. Landowners are not insurers against all accidents and injuries to others on their land. Buskirk v. Nelson (1991), 250 Mont. 92, 818 P.2d 375. A landowner has a duty to those on his property to use ordinary care under the circumstances. Limberhand v. Big Ditch Company (1985), 218 Mont. 132, 706 P.2d 491. In order to recover from the landowner, the injured person must prove that he was injured due to the negligent act or omission of the landowner.

The District Court determined that it had not been presented with evidence which demonstrated that any act or omission by Johnson was the proximate cause of Bossard’s injury.

In Bickler v. Racquet Club Heights Associates (1993), 258 Mont. 19, 850 P.2d 967, we defined proximate cause as follows:

In Montana, proximate cause is an act or omission which, “in a natural and continuous sequence, unbroken by any new, independent cause, produces injury, and without which the injury would not have occurred.” ... The phrase “without which the injury would not have occurred” incorporates the “but for” test.

Bickler, 258 Mont. at 23, 850 P.2d at 970.

Bossard contends that Johnson did not fix the stops or warn of the lack of stops and that his failure to act or warn was the proximate cause of Bossard’s injury. Johnson agrees that he did not fix the stops and that he did not tell Bossard of the lack of stops. However, Johnson contends that Bossard’s injuries flow from Bossard’s own decision to lift the door back on its track.

In considering this aspect, the District Court stated:

While the Defendant [Johnson] knew that the door could come of [off] the track, it was not reasonably foreseeable that the Plaintiff [Bossard] would injure himself by attempting to secure the door. There is a missing link in the chain of causation as presented by the Plaintiff. The falling door did not directly precipitate the Plaintiff’s injuries. It was the Plaintiff’s actions which directly resulted in his injuries,...

Here the event which produced the injury was Bossard’s attempt to lift the door back on its track. Bossard testified that he did not believe such an attempt would injure him. Further, the record is clear that Johnson did not foresee that Bossard’s attempts would end in any injury as Bossard had just completed the successful move of objects as heavy as the door.

We conclude that Bossard’s conduct in lifting the door constituted an independent cause, which broke the continuous sequence required under Bidder to establish proximate cause. We further conclude that because of the absence of proximate cause, Bossard is unable to prove that Johnson was negligent.

Bossard finally contends that the contradictory statements as to the necessity of replacing the door as set forth in Johnson’s two affidavits preclude summary judgment because the affidavits create an issue of material fact. We note here that Bossard’s deposition testimony establishes that he is not sure whether Johnson helped him with the door or not. This inability to state whether both men or only Bossard lifted the door is mirrored in Johnson’s conflicting affidavits. The first affidavit states that both men helped put the door back, Johnson’s second affidavit says only Bossard made the attempt. Yet, this conflict of facts is not important.

The dissent characterizes the major question posed by the two affidavits as one involving the need to replace the door. Whether a need existed is only material to resolution of whether reliance can be placed on the rescue doctrine. While the dissent argues that it is a material question of fact as to whether both men agreed that the door had to be replaced, the only material question is whether an emergency existed. The evidence from both men is consistent that no one present at the scene was threatened with injury.

What is in conflict is whether Johnson believed a threat existed to the “next person who came upon the door.” The rescue doctrine is inappropriate if the only person with any potential to be injured is a possible unknown future person. The “next person to come upon the door” — may never come along. The rescue doctrine is not rooted in future possibilities, but in an immediate need for action. If the facts portrayed consistently by both men showed that Bossard’s actions were required to alleviate the threat of harm, then the rescue doctrine would be applicable. Both men presented consistent evidence that neither of them was injured by the falling door and that no one else was present. Both men also testified consistently that neither of them believed that replacing the door would harm them. These are the facts that are material and they are not in dispute.

The dissent states that Johnson’s shift in his second affidavit away from his belief in the need to protect some future person presents a material question of fact for the trier of fact because it puts the emergency nature of the door replacement at issue. However, what is not certain by reading the two affidavits concerns only Johnson’s wavering “belief” that some person in the future may be injured. The question of Johnson’s “belief’ as to the possibility of harm to a person not present at the scene is not material to resolution of whether Johnson was negligent or whether the rescue doctrine applied. Amaterial fact must contribute to a resolution of the case. State v. DeMers (1981), 192 Mont 367, 628 P.2d 676.

The only question that is material here is whether something Johnson did caused damage or, in the case of application of the rescue doctrine, whether something Johnson did caused an emergency situation that Bossard was forced to attempt to eliminate. Johnson’s beliefs concerning a future possibility of harm to someone who might never show up do not represent anything that is material to resolution of these questions.

We hold that the District Court did not err in granting summary judgment to defendant and in refusing to grant partial summary judgment to plaintiff.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and GRAY concur.

JUSTICE NELSON

dissenting:

I respectfully dissent. This case should not be decided on summary judgment; there are material disputed facts that should be resolved by a jury.

In a personal injury case we must start from the basic premise that issues of negligence are not ordinarily susceptible to summary adjudication, but are better determined at trial. Dillard v. Doe (1992), 251 Mont. 379, 382, 824 P.2d 1016, 1018. Itis only when reasonable minds could reach but one conclusion that questions of fact may be determined as a matter of law. Brohman v. State (1988), 230 Mont. 198, 202, 749 P.2d 67, 70.

In the instant case we need go no further in determining that there are material facts at issue than to Johnson’s affidavits. While our opinion focuses on the conflict in the affidavits regarding whether Bossard lifted the door alone or with the assistance of Johnson, that is not the major difference at all. The substantive difference between the two affidavits derives from the fact that Johnson changes his whole story about the imminency of the peril from his first affidavit to his second. In his December 10,1992, affidavit, Johnson states at paragraph 10:

At the time the sliding door fell off the track and Richard was injured, we both felt it was necessary to replace the door on the track. After the door fell off the track, it was not in a steady position, and we were both concerned that if we left the door as it sat, there would be a risk of injury to the next person who came upon the door and tried to move it. We were also concerned that leaving the door sitting on the ground with only one wheel sitting in the track might further damage the door, the track or the rollers. For those reasons, Richard and I attempted to replace the door on the track.

In his June 29,1993, affidavit, Johnson had a much different view of those crucial facts, however. He states at paragraph 5:

On May 25, 1991, after one end of the door slipped off the track there was no immediate need to replace it upon the track. It certainly needed to be replaced in due time to avoid the possible bending of the track or the very remote possibility of it falling. There was no emergency need to act in replacing the door.

In the two affidavits Johnson’s position goes from concern that the door, hanging from one roller in an unsteady position, would injure the next person who tried to move it, to no more concern than that at some indeterminate point in the future, because of a “remote possibility” of the door falling, that it would have to be replaced. In his first affidavit the door would likely injure the next person who came in contact with it; in his second affidavit the door could, with little risk, hang on one roller until Johnson got around to fixing it. That is the major difference.

Bossard’s deposition testimony clearly supports the statements in Johnson’s first affidavit — i.e. that the door was not in a safe position and that it should not be left hanging from the one roller:

Q: (Attorney Luck) What do you mean when you say you thought in your own mind it was precarious?
A: (Bossard) I thought it could fall off and the door could be torn, damaged, the runner might get damaged if a breeze, a wind, or if somebody came by and it fell on them it could kill them or hurt them.

While the rescue doctrine may not be rooted in “future possibilities,” a fair reading of Johnson’s first affidavit and Bossard’s deposition testimony clearly indicate that both men were concerned that the door was not stable and could likely fall and seriously injure the next person who came in contact with it. Our opinion points out that the “‘next person to come along’ may never come along.” Aside from the absurdity of that statement, it was for the jury to make that determination.

It is undisputed that Johnson knew about the defective door, that Bossard did not, that the defect was hidden and that Johnson failed to warn Bossard that the door would fall off its track if it were pushed too far.

Bossard filed his complaint on the theory that he was injured because Johnson negligently maintained his property by failing to repair a door known by Johnson to be defective, by failing to warn Bossard of that defect known only to Johnson, thereby creating a danger to persons and property which invited the “rescue” by Bossard when the door fell off its track. Johnson’s first affidavit and Bossard’s deposition testimony support that theory, and Bossard argues that he was entitled to partial summary judgment on the issue of liability on that basis, without more.

Even disregarding Johnson’s second, contradictory affidavit, given Johnson’s first affidavit and Bossard’s deposition testimony I believe that there remain issues of fact to be decided by the jury concerning the urgency of the situation and the imminency of the peril after the door fell and as to the application of the “rescue doctrine” to this case.

Furthermore, I disagree with the Court’s conclusion that Johnson had no duty to warn Bossard. We cite to Limberhand v. Big Ditch Co. (1985), 218 Mont. 132, 706 P.2d 491, for the rule that a landowner has a duty to those on his property to use ordinary care under the circumstances, regardless of whether the injured party is a guest, invitee or trespasser. We also pointed out in that case that where a condition on the landowner’s property presents "... a peculiar danger in the nature of hidden peril or trap for the unwaiy ...” a fact issue arises for the jury and that,

[i]t would follow that the court would then instruct the jury that the duty of providing warnings ... for the unwaiy would be measured by the landowner’s duty to exercise “ordinary care or skill in the management of his property” pursuant to section 27-1-701, MCA.

Limberhand, 706 P.2d at 497.

Here it is undisputed that Johnson was aware of the defective condition of the door, that he needed to repair it, that it would fall off its track if pushed too far, and that the defect was not apparent. It is also undisputed that Bossard was unaware of that danger and that Johnson did nothing to make Bossard aware of the condition of the door. Under the facts here and our prior case law, I cannot conclude that Johnson had no duty to Bossard. lb the contrary, Johnson had a duty to use ordinary care in maintaining his property, and he had a duty to warn Bossard of the dangerous condition of the door. Whether those duties were breached by Johnson in this case was for the jury to decide.

Finally, I disagree with our conclusion that Johnson’s conduct was not the proximate cause of Bossard’s injury. Suffice it to say that it is axiomatic that questions of causation in a negligence case are for the finder of fact to decide. See for example, Sizemore v. Montana Power Company (1990), 246 Mont. 37, 803 P.2d 629, and Thayer v. Hicks (1990), 243 Mont. 138, 793 P.2d 784.

Accordingly, I would reverse the grant of summary judgment for Johnson and would remand this case for trial.

JUSTICES HUNT and TRIEWEILER concur in the foregoing dissent.


author: JUSTICE NELSON

text:
    HAINES PIPELINE CONSTRUCTION, INC. Plaintiff/Appellant, v. MONTANA POWER COMPANY, Defendant/Respondent.
    No. 93-416.
    Submitted on Briefs April 7, 1994.
    Decided June 20, 1994.
    51 St.Rep. 514.
    876 P.2d 632.
    265 Mont. 282.

      For Plaintiff/Appellant: Randy J. Cox and Sam E. Haddon, Boone, Karlberg & Haddon, Missoula.
    For Defendant/Respondent: Bruce R. Toole and Donald L. Harris, Crowley, Haughey, Hanson, Toole & Dietrich, Billings.
   JUSTICE NELSON

delivered the Opinion of the Court.

Haines Pipeline Construction, Inc., (Haines) appeals from a judgment entered on August 9,1993, in favor of Montana Power Company (MPC) and against Haines on all claims set forth in its Third Amended Complaint. The District Court, Second Judicial District, Silver Bow County determined that Haines had failed to prove fraud or constructive fraud which would entitle Haines to recover any damages, either actual or punitive. We reverse and remand.

We state the issues on appeal as follows:

(1) Did the District Court err in refusing to apply findings of fact and conclusions of law issued by the District Court in Haines I and affirmed on appeal to determine if Haines was entitled to summary judgment?

(2) Did the District Court err in holding a de novo trial after which it issued findings of fact and conclusions of law contrary to the findings and conclusions affirmed on appeal from Haines 7?

This same case was before us on appeal in Haines Pipeline Constr. v. Montana Power (1991), 251 Mont. 422, 830 P.2d 1230 (hereinafter Haines I), where Haines sued MPC for bad faith and breach of contract. The underlying facts giving rise to the cause of action are set forth in Haines I, and, as necessary to the determination of this case, are restated here.

In June 1983, Haines and MPC entered into a written contract for the construction of a 16 inch natural gas pipeline from Warm Springs to Cut Bank, Montana. In lieu of a construction bond, the parties required Haines to post an irrevocable letter of credit in the amount of $750,000 in favor of MPC, and to maintain such letter of credit until final acceptance and payment of the work under the contract.

Construction of the pipeline required that Haines weld sections of the pipe in accordance with procedures developed by MPC and in compliance with federal regulations. No welds were buried unless they had been inspected and approved by MPC and Gamma Sonics (Gamma), a company hired by MPC to provide X-ray inspection of the welds.

The project had regulatory problems which were brought to the attention of the Montana Public Service Commission (PSC) by labor leaders and the Department of Transportation. Hearings were held on several alleged federal safety violations, regarding primarily the padding of the bed underneath the pipeline. To avoid further hearings, MPC developed a “plan to demonstrate fitness for service” of the portion of the pipeline that had been constructed and agreed to postpone further construction.

On April 16,1984, the letter of credit was reduced to $250,000 and the parties agreed to extend the expiration date to November 15, 1984. On April 23, 1984, the construction contract having been suspended pursuant to the fitness plan, the parties entered into a settlement agreement covering all work done to that date.

MPC hired Southwest Research Institute (SRI) to re-check the X-ray inspection of Gamma. Haines and MPC entered into a second contract on May 8,1984, whereby Haines was to assist MPC in doing miscellaneous repair work on the completed portion of pipeline including repair of buried pipeline identified by SRI as defective. Under this contract Haines was paid as an independent contractor on an hourly basis.

On October 15, 1984, MPC Chief Executive Officer, Paul Schmechel, distributed a memorandum in response to the board of directors’ concerns about the pipeline. The memorandum indicated that MPC would “move Haines off the job” by mid-November. Furthermore, the memorandum indicated that the letter of credit was set to expire on November 15, and that the circumstances surrounding repair work were being reviewed to determine if claims should be made against Haines.

On October 22,1984, Haines as a “good faith gesture” extended the letter of credit until May 15, 1985, at the request of MPC. On November 16, 1984, MPC terminated the June 1983 contract with Haines, pursuant to paragraph 31.0, allowing MPC to terminate at its convenience.

MPC conducted an internal audit of the pipeline construction. The audit focused on the shortcomings of MPC’s supervision of Haines and Gamma. One of the recommendations of the audit was to proceed against Gamma for the cost of digging up the pipeline and making the necessary repairs. It was later determined that Gamma had insufficient assets to pursue.

In J anuary of1985, MPC retained a law firm to advise the company if it had a claim against Haines for the cost of fixing defective welds. MPC did not provide the firm with the audit report. MPC received an opinion letter from the law firm on May 10,1985, advising MPC that it could assert both contractual and negligence claims against Haines to recover the costs MPC would incur in repairing the defective welds.

Subsequently, MPC attorney, Robert Gannon, recommended to MPC’s vice chairman, Jack Burke, that MPC draw upon the $250,000 letter of credit which was due to expire Wednesday, May 15. Gannon concluded that the costs of repairing the welds would substantially exceed the value of the letter of credit. On Tuesday, May 14, Gannon and Burke met with MPC’s CEO, Paul Schmechel, to obtain authority to draw upon the letter of credit.

On May 15, 1985, MPC drew upon the letter of credit after informing Haines that it had failed to perform proper welding under the contract. Haines responded stating that it had no further responsibility for the welds once they had been X-rayed, approved, and the pipe buried.

Haines initiated an action in the Second Judicial District Court, Silver Bow County to recover damages against MPC for breach of the construction contract. After a bench trial the District Court entered its findings and conclusions. The court ruled that MPC had accepted Haines’ work, had no authority to draw upon the letter of credit and that presentment of the letter of credit constituted a breach of the construction contract. Furthermore, the District Court concluded that MPC misled Haines into extending the letter of credit constituting a breach of the implied covenant of good faith and fair dealing. Finally, the court concluded that the breach was oppressive conduct justifying the imposition of punitive damages.

MPC appealed the District Court’s judgment awarding Haines compensatory and punitive damages. Regarding the compensatory damages, we affirmed in part and reversed in part. As to the punitive damages, we reversed and remanded, granting the parties leave to amend their pleadings. We remanded the award of punitive damages, because of the intervening change of law in Story v. City of Bozeman (1990), 242 Mont. 436, 791 P.2d 767, which eliminated the award of tort damages for breach of the covenant of good faith and fair dealing, absent a special relationship. We allowed the parties to amend their pleadings to allege fraud, or other theories consistent with our decision in Haines I.

Following the remand (hereinafter Haines II), MPC substituted Judge Olson, the District Court judge who had tried Haines I. Haines filed a Third Amended Complaint alleging fraud and constructive fraud. Haines moved for summary judgment based upon the findings and conclusions of the District Court in Haines I, affirmed by this Court, that MPC wrongfully enticed Haines into extending the letter of credit. The District Court in Haines II, denied the motion and stated in its memorandum that:

It is noted that Judge Thomas Olson’s Findings and Conclusions were based upon evidence produced in support of the Second Amended Complaint. The District Court found for Plaintiff and the Supreme Court affirmed there was a Breach of the Covenant of Good Faith and Fair Dealing and consequently a Breach of the Contract. The Findings and Conclusions of Judge Olson are the law of that case. (Emphasis added.)

The District Court went on to state,

this Court feels that this matter should be tried de novo to determine if Fraud or Constructive Fraud did in fact exist. (Emphasis in original.)

The District Court retried the case and found that Haines had failed to prove either actual or constructive fraud. In doing so, the District Court made findings directly contrary to the findings of fact and conclusions of law in Haines I, which were affirmed by this Court. On August 9, 1993, judgment was entered in favor of MPC and against Haines on all claims set forth in its Third Amended Complaint. Haines appeals from this judgment.

Haines contends that the District Court failed to properly apply the doctrines of collateral estoppel and law of the case when it made findings which were directly contrary to the findings in Haines I. We address each doctrine in turn.

I. COLLATERAL ESTOPPEL

The doctrine of collateral estoppel is similar to the doctrine of res judicata. The doctrines differ in that res judicata bars the same parties from relitigating the same cause of action, while collateral estoppel bars the party against whom the claim is asserted, or a party in privity with the earlier party, from relitigating issues which have been decided with respect to a different cause of action. Boyd v. First Interstate Bank (1992), 253 Mont. 214, 218, 833 P.2d 149, 151. The collateral estoppel bar extends to all questions essential to the judgment which were determined by a prior judgment. Boyd, 833 P.2d at 151.

It is well established that this Court applies a three part test to determine if collateral estoppel bars relitigation of an issue. Aetna Life and Casualty Insurance Company v. Johnson (1984), 207 Mont. 409, 413, 673 P.2d 1277, 1279; In re Marriage of Stout (1985), 216 Mont. 342, 349-50, 701 P.2d 729, 733-34; Anderson v. State (1991), 250 Mont. 18, 21, 817 P.2d 699, 701. The three prongs are:

1. Was the issue decided in the prior adjudication identical with the one presented in the action in question?
2. Was there a final judgment on the merits?
3. Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?

Aetna, 673 P.2d at 1279.

In determining whether collateral estoppel applies, satisfying the first prong of the test is the most crucial. State v. Young (1993), 259 Mont. 371, 377, 856 P.2d 961, 965, citing Anderson v. State (1991), 250 Mont. 18, 21, 817 P.2d 699, 702. To meet this part, “the identical issue or ‘precise question’ must have been litigated in the prior action.” Young, 856 P.2d at 965.

MPC contends that the first prong of the test is not satisfied because the claim for breach of the implied covenant is not the same issue as claims for fraud and constructive fraud. Because fraud and constructive fraud were never considered in the proceedings in Haines I, MPC concludes that the findings from Haines I which were affirmed by this Court are irrelevant. We disagree and conclude that the first prong of the three part test is met in this case.

The term “issue” does not equate with the elements of a cause of action. This Court has previously declared that “[t]he bar that arises from collateral estoppel extends to all questions essential to the judgment and actively determined by a prior valid judgment.” Brault v. Smith (1984), 209 Mont. 21, 26, 679 P.2d 236, 238. Collateral estoppel also prevents relitigation of determinative facts which were actually or necessarily decided in a prior action. Boyd, 833 P.2d at 151. In addressing whether a change in legal theory precludes the collateral estoppel bar, Moore’s Federal Practice states:

Anew contention is not, however, necessarily a new issue. If a new legal theory or factual assertion put forward in the second action is “related to the subject-matter and relevant to the issues” that were litigated and adjudicated previously, “so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged.” (Citations omitted.)

Vol. IB, Moore’s Federal Practice ¶ 0.443[2], at 760.

In this case Haines originally pled breach of the covenant of good faith and fair dealing to recover punitive damages. As a result of our remand order Haines amended its pleadings to allege fraud and constructive fraud. Although the legal theory relied upon was different, this change did not result in a change in the facts and law established in Haines I. Therefore, the precise issue that MPC is collaterally estopped from relitigating is as found by Judge Olson, the willful conduct of MPC in enticing Haines into renewing the letter of credit when in fact, all MPC was trying to do was gain time to be in a position to draw on the letter of credit.

Moreover, because this Court affirmed the findings and conclusions of the District Court regarding MPC’s actions surrounding the extension of the letter of credit, we also conclude that there was a final judgment on the merits as to that issue and that the second prong of the test is thus satisfied. Finally, the third prong is clearly satisfied as Haines advanced its claims against MPC in Haines I and II. In light of our holding in Haines I, MPC is collaterally estopped from arguing that it did not mislead Haines into extending the letter of credit.

II. LAW OF THE CASE

The law of the case doctrine also precludes relitigation of the facts and conclusions issued by the District Court in Haines I which we affirmed on appeal. The rule of law of the case provides that in deciding a case upon appeal, when the Supreme Court states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case, and must be adhered to throughout its subsequent proceedings, both in the trial court and upon subsequent appeal. Zavarelli v. Might (1989), 239 Mont. 120, 124, 779 P.2d 489, 492.

The plaintiff in Zavarelli, originally brought an action attempting to enjoin his sister from destroying or interfering with a sewer system. Zavarelli v. Might (1988), 230 Mont. 288, 749 P.2d 524. The district court in the first proceeding found that part of the septic system serving the plaintiff’s apartment complex intruded onto the defendant’s property, but that the plaintiff had a prescriptive easement over the defendant’s land. Zavarelli, 749 P.2d at 526. On appeal we reversed and remanded the district court’s decision finding that a prescriptive easement could not be supported. Zavarelli, 749 P.2d at 527. On remand, the district court made no further findings of fact, but did make additional conclusions of law that as a result of mutual mistake in the boundary line the plaintiff did have a property right in the land where the septic tank was located. Zavarelli, 779 P.2d at 492. The defendant appealed alleging that the district court erred in allowing a new affirmative defense of mutual mistake. Zavarelli, 779 P.2d at 492.

This Court determined that although the doctrine of law of the case precluded the district court on remand from determining as a matter of law that the plaintiff had a prescriptive easement in the defendant’s property, it did not, preclude the district court from reaching a different conclusion of law based on the facts which it had already found. Zavarelli, 779 P.2d at 493. (Emphasis added.)

When a case is reversed and remanded for further proceedings, the issues are generally open on a retrial. Zavarelli, 779 P.2d at 493. However the trial court is not free to ignore the mandate and opinion of the reviewing court, but must proceed in conformity with the views expressed by the appellate court. Zavarelli, 779 P.2d at 493.

On remand, the trial court may consider or decide any matters left open by the appellate court, and is free to make any order or direction in further progress of the case, not inconsistent with the decision of the appellate court, as to any question not presented or settled by such decision. (Emphasis added.)

Zavarelli, 779 P.2d at 493.

In Haines I, we affirmed Judge Olson’s findings and conclusions in all respects except as to the matter of the award of $50,000 compensatory damages {Haines I — issue III) and except as to the court’s legal conclusion, based on pr e-Story law, that a breach of the covenant of good faith and fair dealing was a sufficient basis on which to award punitive damages {Haines I — issue IV).

We did not disagree with or reverse Judge Olson’s findings of fact on which he awarded punitive damages. In fact, we concluded that the issues of fraud and the breach of the covenant of good faith and fair dealing as applied in this case to be “inextricably intertwined.” Haines, 830 P.2d at 1240. We simply held that between the time the parties litigated through the trial and the time the case was ready for decision on appeal, we changed the law, and that on the basis of the changed law, punitive damages could not be awarded on the basis of the then existing record, without more. Our singular purpose on remand was to allow the parties to plead, prove, argue and defend against the “without more,” that is, to: 1) allow Haines to amend its pleadings to allege the necessary legal basis (fraud, constructive fraud, or other theory) to prove punitive damages under Story; 2) to allow MPC to amend its pleadings to assert fraud, constructive fraud, or other punitive damages defenses; and, 3) to allow the district court to determine whether Judge Olson’s findings and conclusions, alone or with additional evidence on the new theories justified an award of punitive damages.

We did not reverse and remand for a whole new or de novo trial. To the contrary, under the posture of the case on the limited remand ordered, once the parties amended their pleadings, the District Court was limited: 1) to determining, on the basis of Judge Olson’s findings and conclusions, whether punitive damages were justified on the basis of any new theory plead (i.e., was Haines entitled to summary judgment simply on the basis of Judge Olson’s findings and conclusions); 2) if not, to accepting additional evidence in support of and against the new legal theories pled, and to making additional findings on the additional evidence as regards the new legal theories; 3) to making additional conclusions of law on whether Judge Olson’s findings, along with the new findings, justified an award of punitive damages under the new legal theories pled; and, 4) if punitive damages were justified, to determining the amount thereof.

In Story v. City of Bozeman (1993), 259 Mont 207, 230-31, 856 P.2d 202, 216 (Story II), we differentiated between a case where we remand for a new trial without saving certain portions of the judgment (i.e. a trial die novo) and a case where we remand with limiting instructions. Our remand in Haines 1 was of the latter type and not the former. It was error for the District Court in Haines II to disregard Judge Olson’s findings and conclusions from Haines I concerning the breach of the covenant of good faith and fair dealing which we affirmed on appeal.

The findings and conclusions in Haines I that MPC misled Haines into extending the letter of credit, that MPC’s conduct was oppressive and constituted implied malice, and that MPC breached the covenant of good faith and fair dealing, all stand as the law of the case, and the District Court was in error to disregard and contravene those in Haines II.

On remand, the District Court must consider the claim for punitive damages based on the new theories pled and on any additional evidence received in Haines II; it is not, however, at liberty to disregard or contravene Judge Olson’s findings and conclusions in reaching its decision.

REVERSED and REMANDED for further proceedings consistent with this opinion.

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

JUSTICE GRAY did not participate in this opinion.


author: JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. KENNETH ANTHONY ALLEN, Defendant and Appellant.
    No. 93-287.
    Submitted on Briefs April 7, 1994.
    Decided June 21, 1994.
    51 St.Rep. 519.
    876 P.2d 639.
    265 Mont. 293.

      For Defendant and Appellant: Joseph Massman, Massman Law Office, Helena; Jerry Strauss, Strauss Law Firm, Minneapolis, Minnesota.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General; Elizabeth L. Griffing and John P. Connor, Jr., Assistant Attorneys General, Helena; Chris Miller, Powell County Attorney, Deer Lodge.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from the denial of Appellant Allen’s motion to withdraw guilty plea by the Third Judicial District Court, Powell County. We affirm.

We consider the following issue on appeal:

Did the District Court abuse its discretion in denying Allen’s motion to withdraw his guilty plea?

This action arises out of the 1991 prison riot at the Montana State Prison in Deer Lodge. Kenneth Allen (Allen) was one of a dozen inmates who were charged with burglary and homicide following the riot in which five inmates were killed.

On February 3, 1992, the State charged Allen with two counts of kidnapping, one count of burglary, and five counts of deliberate homicide based upon the theory of the felony murder rule. Trial began on September 14, 1992, and proceeded for several days. Witnesses testified that they had seen Allen involved in the riot and assault on inmates. On September 16, 1992, Allen entered an Alford plea pursuant to Alford v. North Carolina (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162. In his plea, Allen pleaded guilty to one count of mitigated deliberate homicide pursuant to a plea agreement with the State. All other counts were dismissed.

A pre-sentence report recommended a 40 year sentence without parole to run consecutively to Allen’s current prison term. As part of the plea agreement, the State agreed not to recommend that the court impose any particular sentence.

On January 25,1993, Allen moved the court to withdraw his guilty plea. The court held a hearing on March 19,1993, and denied Allen’s request. Following the hearing, the court sentenced Allen to 25 years, to run consecutively to Allen’s current sentence.

On April 5,1993, the District Court issued its findings of fact and conclusions of law stating that even though § 46-18-401(5), MCA, required a mandatory consecutive sentence for Allen, the court had not used that statute as a basis upon which to sentence Allen. The court stated that because Allen had a lengthy history of criminal violence, it was forced by the serious present circumstances to assign a consecutive sentence. Thus, the court stated that Allen’s understanding of § 46-18-401(5), MCA, is irrelevant because Allen’s own affidavit acknowledges that he understood that a consecutive sentence was a possibility.

Allen appealed the court’s decision.

Did the District Court abuse its discretion in denying Allen’s motion to withdraw his guilty plea?

At the heart of the controversy in this case is § 46-18-401(5), MCA, which states in part that:

Consecutive sentences. (5) Except as provided in this subsection, whenever a prisoner is sentenced for an offense committed while he was imprisoned in the state prison or while he was released on parole or under the supervised release program, the new sentence runs consecutively with the remainder of the original sentence. ...

Allen claims that he did not know of the mandatory “consecutive” sentence provision in this statute and, therefore, must be permitted to withdraw his guilty plea. Allen argues that his counsel did not inform him of this mandatory consecutive sentence and he received, therefore, ineffective assistance of counsel. Further, Allen contends that he was under the impression that the court had discretion to make the sentence concurrent or consecutive.

The State contends that Allen had been advised of the mandatory nature of the consecutive sentence and that the District Court’s in-court interrogation of the defendant following the guilty plea was sufficient.

The record demonstrates that prior to entering his guilty plea, Allen had actual notice of the fact that his sentence in this case would be served consecutively to his current sentence. On March 19,1993, at the hearing on Allen’s motion to withdraw his guilty plea, defense counsel Strauss stated on the record:

We did, in fact, discuss consecutive sentencing in chambers with the court before we entered the plea bargain, and we did, in fact, mention it with Mr. Allen before he entered his plea, all though [sic] the case law makes clear that the notion of the consecutive sentencing should be clear on the district court’s interrogation. And it is to that extent...

When advised by Allen that he was not told by counsel of the mandatory consecutive sentence, the judge proceeded to engage in his own recollection of what occurred. He remembered that the consecutive nature of Allen’s sentence had been discussed in chambers and counsel had then left to inform Allen. When asked by Allen’s counsel not to rely on his memory, but on Allen’s, the judge then questioned counsel specifically:

“I’m asking you did you say it [tell Allen that the sentence had to be consecutive]?”

Counsel’s on-the-record reply was:

“My recollection is that we had that discussion.”

Further, both Allen’s attorneys stated that they remembered informing Allen of the consecutive sentence. Subsequently, both attorneys attempted to fall on the sword by arguing to the court that it should not rely on its own or counsels’ memories, but on Allen’s. We conclude that the record shows that Allen knew about the consecutive sentence.

We note that Montana law requires that the withdrawal of a guilty plea may be made upon a showing of “good cause.” Section 46-16-105, MCA. The discretionary nature of this statute has been recognized in a long line of cases in which we have stated that we will not overturn a district court’s decision to permit or deny withdrawal of a guilty plea unless the court has abused its discretion. State v. Ries (1993), 257 Mont. 324, 849 P.2d 184. We have further defined a valid plea by stating that such a plea is one that is made voluntarily and intelligently from the alternative courses open to the defendant as affirmatively disclosed by the record. State v. Lance (1982), 201 Mont. 30, 651 P.2d 1003.

In assessing “good cause” to withdraw a guilty plea, this Court will evaluate three specific circumstances from the facts surrounding the case: 1) the adequacy of the district court’s interrogation at the time the plea was entered as to the defendant’s understanding of the consequences of the plea; 2) the promptness with which the defendant attempted to withdraw the prior plea; and 3) the fact that the defendant’s plea was the result of the plea bargain. State v. Bull Coming (1992), 253 Mont. 71, 831 P.2d 578.

Concerning element one, the transcript shows that the judge was very thorough when questioning Allen. The transcript of the hearing following Allen’s guilty plea shows that the court carefully questioned him concerning the sufficiency of his legal counsel, his feelings concerning his decision, his lack of alcohol or drug influence, his understanding of the nature of the mitigated deliberate homicide charge, the consequences to pleading guilty to this charge, the fact that the judge would not be bound by any kind of recommendation from the parties, his understanding of the loss of his rights in a trial situation. The court also had Allen confirm the reason why he felt he was guilty of one count of mitigated deliberate homicide. Within the court’s detailed questioning of Allen, the court explicitly informed Allen that the sentence carried a maximum term of 40 years. The judge then informed Allen that as the sentencing judge he could put any restrictions on a possible parole that he wished and that he would not be bound by any suggestions from anyone. Further, the court explained in great detail what a guilty plea meant to Allen in terms of foregoing rights such as confrontation of witnesses against him.

In the present case, the court specifically told Allen that he could be denied parole totally and as a consequence would have to serve all 40 years, or that he could be labeled a dangerous offender and that if so designated he would have to serve 20 of the 40 years for the offense. The court clearly informed Allen that it was under no responsibility to accept the conditions of the plea agreement reached by the parties. We conclude that the District Court sufficiently interrogated and informed Allen of the ramifications of his guilty plea. We further conclude that Allen had actual knowledge of the mandatory consecutive requirements of § 46-18-401(5), MCA, and therefore did not have good cause to withdraw his plea. We hold that the District Court’s denial of Allen’s motion to withdraw his guilty plea should be affirmed because it was not an abuse of discretion. We take this opportunity to point out that sentencing courts can avoid this battle by advising defendants of the requirements of § 46-18-401(5), MCA, as part of an interrogation.

We hold that the District Court did not abuse its discretion in denying Allen withdrawal of his guilty plea.

Affirmed.

JUSTICES GRAY, HUNT, NELSON and TRIEWEILER concur.


text:
    THE STATE OF MONTANA, Plaintiff/Respondent, v. DANNY RAY KELLY, Defendant/Appellant.
    No. 93-402.
    Submitted on Briefs April 21, 1994.
    Decided June 21, 1994.
    51 St.Rep. 522.
    876 P.2d 641.
    265 Mont. 298.

      For Defendant/Appellant: William F. Hooks, Appellate Defender, Helena.
    For PlaintiffiRespondent: Joseph P. Mazurek, Attorney General; Patricia Jordan, Assistant Attorney General; Dennis Paxinos, Yellowstone County Attorney; Daniel L. Schwartz, Deputy, Billings.
   JUSTICE NELSON

delivered the Opinion of the Court.

Following a jury trial, the defendant, Danny Ray Kelly (Kelly), was convicted of one count of aggravated kidnapping, a felony, in violation of § 45-5-303(l)(c), MCA, and two counts of sexual intercourse without consent, felonies in violation of § 45-5-503(1),(3), MCA. Based on that conviction, he was sentenced by the District Court for the Thirteenth Judicial District, Yellowstone County to imprisonment at the Montana State Prison for one hundred years on the aggravated kidnapping charge and to terms of forty years on each of the two charges of sexual intercourse without consent, to rim consecutively to each other and concurrently with the term of imprisonment on the aggravated kidnapping charge. Kelly appeals the conviction and sentencing. We affirm the conviction, and reverse and remand for resentencing.

The two issues on appeal are as follows:

1. Did the District Court err in relying on Kelly’s constitutional right to remain silent in imposing punishment?

2. Did the District Court improperly bolster the credibility of the alleged victim, J.C., and deny Kelly his right to a fair trial by examining the witness to assess competency, in the presence of the jury, when there was no issue as to competency?

FACTUAL BACKGROUND

During the early morning hours of July 29, 1992, two women Roxanne C., and Victoria Friday, asked Kelly to drive them home from a house party. Kelly drove the women home and left a short time later. Around 8:00 a.m., Roxanne’s four children who had stayed overnight at a babysitters, returned home. While they were watching T.V., there was a knock on the door, and Kelly entered the house. He went into Roxanne’s room for a short time, and then went into Victoria’s bedroom. Victoria told Kelly to leave. He went to the room where the children were watching T.V. and told J.C., who was then eleven years old, that her mother wanted him to take her to the store to buy diapers and formula. J.C. went to ask her mother if it was alright for her to go to the store, but she could not awaken her. J.C. then went with Kelly in his car, however he did not take her to the store but rather took her to various locations, including the apartment where Louis Hollingshed lived, and subjected her to sexual acts.

While in Hollingshed’s apartment, J.C. ran into the kitchen grabbed a knife and stabbed Kelly twice in the leg. Kelly struggled to get the knife back from J.C. and in doing so J.C.’s finger was cut. Kelly demanded that J.C. clean up the blood on the floor, so J.C. attempted to do so with a towel. A short time later they left the apartment. While they were getting into Kelly’s car J.C. managed to run to a nearby business where Angela Schneider was working. J.C. was shaking and screaming “he is going to kill me.” Ms. Schneider took J.C. outside and asked her where the man was, and J.C. pointed to a black man in a blue station wagon. After leading the police on a high speed chase, Kelly was arrested and taken into custody.

The Yellowstone County Attorney’s Office subsequently filed an Information charging Kelly withone count of aggravated kidnapping, a felony, and four counts of sexual intercourse without consent, each charge a felony. The State moved the court to dismiss two of the charges of sexual intercourse without consent, and the court granted the motion. A jury trial was held on January 25,26, and 27,1993, and the jury returned a verdict finding Kelly guilty of the remaining three charges.

J.C. testified at the trial. Kelly did not attack the credibility or competency of J.C. Although defense counsel and the State did ask the jury panel, during voir dire, questions about whether children in general had the ability to tell the truth, the questioning did not specifically address J.C.’s competency or credibility. The State offered and later withdrew a jury instruction regarding competency of a child witness and defense counsel felt that an instruction was unnecessary. Notwithstanding, after J.C. testified, the District Court questioned her concerning her understanding of the oath and the fact that she raised her left hand as opposed to her right hand in taking the oath. The court asked her if she had told the truth to which she responded “yes.” This was all accomplished in the presence of the jury. At that time defense counsel did not object, however, two days later defense counsel moved for a mistrial on the ground that the District Court had bolstered J.C.’s credibility by questioning her in the presence of the jury regarding her competency and credibility. The court denied the motion.

Kelly chose not to testify at trial. The District Court sentenced Kelly to imprisonment at the Montana State Prison for one hundred years on the aggravated kidnapping charge and to terms of 40 years on each of the two charges of sexual intercourse without consent, to run consecutively to each other and concurrently with the term of imprisonment on the aggravated kidnapping charge. Included among its reasons for imposing the sentence the District Court stated, “The Court considered all the facts presented during trial and that the defendant did not testify.”

I — IMPROPER SENTENCING

Kelly contends that the District Court violated his constitutional rights under the Fifth Amendment to the United States Constitution and Article II, section 25 of the Montana Constitution against self-incrimination when it based the sentence in part on his failure to testify.

This Court has previously held that to punish a person for exercising a constitutional right is a basic due process violation. State v. Baldwin (1981), 192 Mont. 521, 525, 629 P.2d 222, 225. It is fundamental that a defendant retains important Fifth Amendment rights after the jury reaches a verdict. U.S. v. Rodriguez (5th Cir. 1974), 498 F.2d 302, 312. When a defendant invokes his or her Fifth Amendment privilege against self-incrimination, a sentencing court may not use his or her failure to waive that right as negative evidence to penalize him or her in deciding upon the appropriate sentence. U.S. v. Heubel (3rd Cir. 1989), 864 F.2d 1104, 1111.

This Court has recognized the importance of the constitutional right not to be a witness against oneself. State v. Imlay (1991), 249 Mont. 82, 813 P.2d 979. In Imlay, the defendant was convicted of felony sexual assault. Imlay, 813 P.2d at 980. The defendant received a suspended sentence which contained a special condition that he complete a sexual treatment program. Imlay, 813 P.2d at 980. Because he would not admit that he committed the offense it was determined he was not complying with the treatment and his suspended sentence was revoked. Imlay, 813 P.2d at 982. This Court vacated the sentence and remanded because we concluded that the defendant could not be punished for asserting his constitutional right against self-incrimination. Imlay, 813 P.2d at 985.

In the instant case it is clear that the District Court relied in part on Kelly’s failure to testify in imposing the sentence, as it included this fact in the sentencing order. In doing so, the District Court violated Kelly’s constitutional right to remain silent. While the State argues that there is no evidence that Kelly received a harsher sentence than he might have otherwise received had he testified, and that there were good reasons why he received a harsh sentence, it is not the defendant’s burden to show that his sentence might have been different if he had testified. See, State v. Holder (Ariz.App. 1987), 745 P.2d 138, 141 (where a sentence was reversed because the accused arguably received a sentence greater than he would have had he admitted guilt). The sentencing court simply may not consider the defendant’s exercise of his constitutional right to remain silent in the face of his accuser, much less penalize him for doing so. We therefore remand for resentencing without consideration of Kelly’s failure to testify.

II — QUESTIONING OF VICTIM

The second issue Kelly raises concerns the District Court’s questioning of J.C. during trial. Kelly contends the District Court committed reversible error when it questioned J.C. in front of the jury. After J.C. testified, and without first excusing the jury, the District Court questioned J.C. as follows:

THE COURT: [J.C.] how old did you say you were?
THE WITNESS: At that time or —
THE COURT: Yeah, or your birthday; I don’t care.
THE WITNESS: I was eleven, and my birthday is August 29,1980.
THE COURT: I notice when you were sworn in you raised your left hand. Did you know you did that?
THE WITNESS: Yeah.
THE COURT: But that isn’t too important. The important thing is what the lady asked you is essentially did you swear. You swore to tell the truth?
THE WITNESS: Yes.
THE COURT: And you know the difference between the truth and a lie; don’t you?
THE WITNESS: Yes.
THE COURT: Have you told the truth?
THE WITNESS: Yes.
THE COURT: So you do recognize that when you agreed to tell the truth that was required?
THE WITNESS: Yes.
THE COURT: Okay. Okay. I think that they are through now; is that correct?

(Whereupon the witness was excused.)

Kelly maintains that because defense counsel did not challenge J.C.’s competency or attack her credibility, the trial judge should not have taken it upon himself to question J.C. regarding her competency. He alleges that the trial court’s questioning of J.C. amounted to impermissible comment on her credibility as a witness, and therefore we should remand the case for a new trial.

There is no age requirement before a person is considered competent to testify. State v. Phelps (1985), 215 Mont. 217, 226, 696 P.2d 447, 453. Rule 601, M.R.Evid., defines witness competency and that rule provides:

(a) General rule competency. Every person is competent to be a witness except as otherwise provided in these rules.
(b) Disqualification of witnesses. A person is disqualified to be a witness if the court finds that (1) the witness is incapable of expression concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand the witness or (2) the witness is incapable of understanding the duty of a witness to tell the truth.

Because a witness is presumed to be competent under Rule 601(a), the District Court had no obligation to question J.C. concerning her ability to tell the truth, unless counsel raised the issue of competency or unless the court had some concerns in that regard. If the court found it necessary to interrogate J.C., it should have done so outside the jury’s presence. See, State v. Howie (1987), 228 Mont. 497, 503, 744 P.2d 156, 159. State v. Phelps (1985), 215 Mont. 217, 225, 696 P.2d 447, 452.

We conclude that the District Court did err in questioning J.C. in front of the jury. If the court, or counsel, was concerned about J.C’s competency, then the court should have established her competency before she testified and outside the presence of the jury. We adopt this procedure for future cases.

However, in the instant case we will not reverse Kelly’s conviction for two reasons. First, Kelly failed to make a timely objection at the first available opportunity, after the court’s voir dire of J.C. Section 46-20-104(2), MCA, provides that failure to make a timely objection during trial constitutes a waiver of the objection. The motion for a mistrial did not come until settlement of instructions, two days after J.C. testified. Therefore we conclude that Kelly failed to object at the first available opportunity, thereby waiving his objection.

Secondly, we believe the error was harmless. In State v. Smith (1984), 208 Mont. 66, 676 P.2d 185, the trial court also questioned a child witness concerning her competency as a witness in front of the jury. In that case we noted that although it was not proper to question the witness in the jury’s presence, the defendant was not prejudiced by the questioning in light of the overwhelming corroborating evidence. Smith, 676 P.2d at 188.

In the instant case, we find that there was substantial direct and corroborative evidence of Kelly’s guilt. For example, Louis Hollingshed testified that Kelly visited his apartment with a young girl, that he saw blood on the kitchen floor, and that Kelly had a cut on his thigh. Hollingshed asked Kelly what happened and Kelly replied, “The bitch cut me.” Hollingshed also testified that the young girl was frantic, crying, and emotionally upset.

Angela Schneider testified that J.C. ran to her workplace shaking and screaming “he is going to kill me,” and pointed to a black man in a blue car. The emergency room doctor who examined J.C. shortly after the incident testified that she had lacerations on her fingers, and other injuries consistent with someone who had been sexually and physically assaulted. The State Crime Lab found that a blood stain found on J.C’s shirt was consistent with Kelly’s blood, and blood stains on the towel which was taken from Louis Hollingshed’s apartment were consistent with both Kelly’s and J.C.’s blood.

Based on this evidence and other evidence introduced at trial, we conclude that the District Court’s questioning of J.C. was harmless error, therefore Kelly’s conviction is upheld.

REVERSED AND REMANDED FOR RESENTENCING, CONVICTION AFFIRMED.

JUSTICES HARRISON, GRAY, TRIEWEILER and WEBER concur.