text:
    STATE OF MONTANA, Plaintiff and Respondent, v. STEVEN RICHARD PALMER, Defendant and Appellant.
    No. 90-366.
    Submitted on briefs Jan. 17, 1991.
    Decided Feb. 12, 1991.
    247 Mont. 210.
    805 P.2d 580.

      Larry Jent, Bozeman, for defendant and appellant.
    Marc Racicot, Atty. Gen., Deanne L. Sandholm, Asst. Atty. Gen., Helena, Michael Salvagni, Gallatin County Atty., Gary Balaz, Deputy Gallatin County Atty., Bozeman, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Steven R. Palmer appeals from an April 10,1990, judgment of the District Court of the Eighteenth Judicial District, Gallatin County, finding him guilty of recklessly eluding a peace officer and operating a motor vehicle under the influence of alcohol. We affirm.

Appellant presents two issues:

1. Was the evidence sufficient to find Palmer guilty of recklessly eluding a police officer?

2. Was the evidence sufficient to find Palmer guilty of driving under the influence of alcohol?

I.

This case involves a fourteen-mile high speed car chase by three police officers, reminiscent of a “Dukes of Hazard” television episode. At approximately 2:30 a.m. on September 11, 1988, Officer David Reynolds of the Gallatin County Sheriff’s Department observed a car traveling west on U.S. Highway 191, also known as Huffine Lane, near the Main Mall in Bozeman, Montana. A radar reading showed the car to be going 68 miles per hour in a 45 miles per hour speed zone. Reynolds, who was proceeding east, switched on his emergency lights as the car approached. The car went by him, and Reynolds, with his lights and siren on, turned around in order to pursue the speeding car. Reynolds could see that the car was a dark, full-sized, older, American-make car.

The car accelerated, temporarily lost control as it veered off the right-hand side of the road, and continued westbound. Reynolds, traveling at speeds from 85 to 95 miles per hour, tried to overtake the car, yet the car continued to extend the distance between them. Rain mixed with snow was falling, and Reynolds found that if he attempted to increase his speed, his vehicle would hydroplane. Reynolds testified that the car ahead was reaching speeds in excess of 100 miles per hour.

Reynolds kept visual contact with the taillights of the speeding car until it swung north on Jackrabbit Lane. As soon as Reynolds turned north, he could see the taillights again. No other cars were on the highway at that point.

When he realized that the car was not going to stop, Reynolds contacted the county dispatcher. Reynolds again radioed the dispatcher when he turned right on Jackrabbit Lane. The county dispatch unit notified Belgrade police officer, John Woodland, that Reynolds was pursuing a northbound car on Jackrabbit Lane. Woodland headed south on Jackrabbit. As he met the pursued car, Woodland turned on his emergency lights. Reynolds lost sight of the taillights of the fleeing car because of the lights on Woodland’s car and the lights from Bair’s truck stop. Woodland reversed direction and also lost sight of the escaping car.

The county dispatcher had called the Montana Highway Patrol who contacted Patrolman Dan Smith in the Belgrade area. Smith was approximately one-half mile behind Woodland. When Smith saw the fleeing car go past Woodland, he turned around, switched on his siren and emergency lights, and headed north, watching the approaching car in his rear view mirror. The driver of the speeding car flashed his lights, but did not slow down, and burst by Smith as Smith pulled over on the shoulder of the road.

The car sped north on Jackrabbit with Smith in pursuit. As he approached a truck, the driver of the escaping car started to pass, saw an oncoming car, skidded off the road to the left momentarily, swerved back across the road, and plummeted down a fifteen-foot embankment on the right side of the road. Smith stopped his patrol car, got out, and looked over the embankment. But instead of stopping, the driver revved the motor and headed northward in the ditch. The car came to a small irrigation ditch, jumped the irrigation ditch, turned eastward, and continued in the ditch parallel to Alaska Road South.

The driver of the car attempted to escape the ditch onto Alaska Road South, tore across the road through the interstate fence, and ended up on the eastbound on-ramp to Interstate 90 facing the wrong way. Smith, going west, followed on Alaska Road south, which runs parallel to the on-ramp to Interstate 90.

When the car reached the intersection of the eastbound on-ramp and Jackrabbit, it crossed Jackrabbit Lane, slid down another ten to fifteen foot embankment, ripped through the interstate fence, hit the side of Amsterdam Road, and again careened through the interstate fence into a ditch. The car continued westbound in the ditch for about two-tenths of a mile and then climbed onto Amsterdam Road.

The car accelerated to approximately 70 to 75 miles per hour, but at a point where Amsterdam Road makes a large sweeping turn to the left, the car again flew off the road, hit a road sign, and bounced into a field. The car bolted through the field toward the interstate, hut came to a fence. Following the fence, the car swerved back toward Amsterdam Road. As the car neared Amsterdam Road, it struck a private approach road, soared airborne for 58 feet, and came to a final stop on the far side of Amsterdam Road. Steam spewed from the radiator of the car, which looked as if it had been in a demolition derby.

Smith had the car in visual contact from the instant he first saw the car go by Woodland on Jackrabbit Lane until it crashed, except for the few moments he stepped from his car to peer over the first embankment the car dived down and for a few seconds when the car slid down the second embankment.

While Smith was tracking Palmer’s car, Reynolds and Woodland pulled into Bair’s truck stop and approached another vehicle which had a large amount of steam coming off the front end. When the steam cleared, Reynolds realized that it was not the same vehicle that he had been pursuing. Shortly thereafter, the officers received radio contact from Smith indicating that Palmer’s car had wrecked.

After the crash, Smith approached the car and saw Palmer lying with his head on the floor under the dashboard and with his feet up on the steering wheel. Palmer was unconscious. When Woodland and Reynolds arrived at the scene, Reynolds recognized the car as the one which had passed him on Huffine Lane. Reynolds, an emergency medical technician, applied a dressing to a large laceration on Palmer’s neck. Palmer began to regain consciousness and appeared to be in shock, flailing around and fighting the assistance being given him.

At the hospital, Reynolds noticed the odor of alcohol on Palmer’s breath. After reading the implied consent law to Palmer, he placed him under arrest and requested a blood test. Reynolds informed Palmer that if he refused the blood test he would lose his driver’s license. Reynolds ordered the nurses to draw blood for the test, but Palmer refused. No blood sample was taken. Reynolds cited Palmer for speeding, driving under the influence of alcohol, recklessly eluding a police officer, and failing to have insurance.

On February 16, 1989, Palmer was convicted in justice court of speeding, driving under the influence of alcohol, and recklessly eluding a police officer. Palmer appealed to district court and after a bench trial was convicted of driving under the influence of alcohol and eluding a police officer. On May 10,1990, the District Court sentenced Palmer to consecutive sentences of six months in jail and a total fine of $1,000. All but 45 days of the jail sentence and $500 of the fine were suspended.

II.

The first issue is whether the evidence was sufficient to find Palmer guilty of recklessly eluding a police officer.

The standard of review in a criminal case where the issue is sufficiency of the evidence is whether the evidence, when viewed in a light most favorable to the prosecution, would allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Holman (1990), 241 Mont. 238, 241, 786 P.2d 667, 669; State v. Tome (1987), 228 Mont. 398, 400, 742 P.2d 479, 481. The weight of the evidence and the credibility of the witnesses are “exclusively the province of the trier of fact. If the evidence conflicts, it is within the province of the trier of fact to determine which shall prevail.” State v. Oman (1985), 218 Mont. 260, 265, 707 P.2d 1117, 1120.

Pursuant to Montana law, a person commits the offense of recklessly eluding an officer when he:

“operates any vehicle in willful or wanton disregard for the safety of persons or property while fleeing or attempting to flee from or elude a peace officer who is lawfully in pursuit and whose vehicle is at the time in compliance with the requirements of 61-9-402.”

Section 61-8-301(l)(b), MCA. The charge against Palmer was eluding a police officer from Huffine Lane to Jackrabbit Lane. Palmer contends that a reasonable doubt exists as to whether he was the driver of the car which Officer Reynolds pursued from Huffine Lane to Jackrabbit Lane before Reynolds lost sight of the car.

Palmer posits two arguments. First, because Officer Reynolds lost sight of the car he was pursuing on Jackrabbit Lane and mistakenly stopped another vehicle at Bair’s truck stop, a reasonable doubt arises as to whether Palmer was the driver of the car that eluded Reynolds on Huffine and Jackrabbit.

Palmer’s theory is rebutted by the evidence. Although Reynolds testified that he lost sight of the fleeing car near Bair’s truck stop, at that moment Patrolman Smith of the Montana Highway Patrol had sight of the car and kept the fleeing car in view until the end of the chase, with the exceptions of the few seconds when Palmer plunged out of sight over the fifteen-foot embankments. Smith, heading south on Jackrabbit Lane following Officer Woodland, saw the northbound car Reynolds was pursuing speed by Woodland’s car without stopping. Smith then made a U-turn and could see the fleeing car approaching him in his rear-view mirror.

According to the testimony of Reynolds, he had Palmer’s car in sight at all times except for a matter of seconds when Palmer turned north on Jackrabbit from Huffine Lane. No other vehicles were in the vicinity when Palmer turned north on Jackrabbit Lane.

In addition, Reynolds testified that Palmer’s car was the same color and type as had passed him on Huffine Lane before he turned around and began giving chase. Reynolds also attested that as soon as he had a clear view of the stopped vehicle at Bair’s truck stop, he realized that the vehicle was not the one he had been chasing.

Secondly, Palmer claims that, given the times reported in the dispatch log of the beginning of the chase and the occurrence of the accident and given the distances traveled, it was impossible for Palmer to have been the driver of the car spotted on Huffine Lane. Palmer asserts that a vehicle would have to travel at speeds approaching 160 miles per hour in order to cover the distance between the Main Mall in Bozeman and the place of the wreck on Amsterdam Road.

Reynolds called the dispatcher at 2:37 a.m. to report that he was in pursuit of Palmer’s car. The accident at Amsterdam Road was reported at 2:44 a.m. Smith estimated that the car would have had to travel an average speed of 94 miles per hour to cover the distance between the two points.

The discrepancy between the speeds estimated by Smith and Palmer is due to the location of Reynolds’ vehicle when he reported to the dispatcher. Palmer placed him at the Main Mall, but Reynolds testified that he didn’t call the dispatcher until he realized that the speeding car was not going to stop. Thus, the distance was shorter than envisioned by Palmer.

The District Court addressed this issue in its findings:

“On January 4, 1990, Defendant asked for a continuance of this trial for the reason that he had retained a physicist to confirm by expert opinion that based on times, distance and speed that it could not have been Defendant who Officer Reynolds pursued down Huffine and Jackrabbit Lanes. Based on that representation, the cause was continued. The expert did not appear at this trial. Thus, the Court has only counsel’s argument and clever though it may be, it is not evidence.”

The District Court relied on the credible evidence of the officers’ testimony in concluding that Palmer’s car was the same car initially pursued by Reynolds on Huffine Lane. Viewing the evidence in the light most favorable to the prosecution, we hold that the District Court, as the trier of fact, relied on sufficient evidence to find Palmer guilty beyond a reasonable doubt of recklessly eluding a police officer.

III.

The second issue is whether the evidence was sufficient to find Palmer guilty of driving under the influence of alcohol.

Palmer argues that the only proof of intoxication was that at the hospital Officer Reynolds smelled alcohol on Palmer’s breath; therefore, the evidence was insufficient to find Palmer guilty beyond a reasonable doubt of driving under the influence of alcohol. Palmer asserts that no other evidence, such as a field sobriety test, slurred speech, bloodshot eyes, or results of the horizontal gaze nystagmus test, was presented.

The District Court based its verdict on the following finding:

“The admitted physical facts of the Defendant’s impaired driving judgment is almost sufficient in and of itself to sustain the charge. The odor of alcohol detected on the operator’s breath by an experienced officer, after having personally observed the irregular, erratic manner in which the vehicle was operated, is sufficient.”

The manner in which a vehicle is driven can be evidence of driving under the influence of alcohol. See State v. Peterson (1989), 236 Mont. 247, 250, 769 P.2d 1221, 1223. Here, the way in which the car was driven would not be expected to be undertaken by a sober individual unless he were a stuntman in a car chase movie. Driving at speeds over 100 miles per hour under wet road conditions, swerving off the road, plunging over two embankments, driving down ditches and across fields, smashing through the interstate fence, and failing to stop even though signaled to stop by three police officers demonstrate a manner of driving that suggests the driver was intoxicated.

Since Palmer was unconscious immediately after the crash and just beginning to regain consciousness as he was moved into the ambulance, field tests would have been inappropriate. At the hospital, Palmer seemed confused when Reynolds sought to explain the implied consent law and obtain his permission for a blood test. However, he was sufficiently aware to answer questions asked him by medical personnel and to refuse the alcohol blood test when ordered.

Further, the trier of fact can consider as evidence of guilt refusal to submit to a blood test or other tests of intoxication as provided by law. Section 61-8-404(2), MCA; State v. Jackson (1983), 206 Mont. 338, 347, 672 P.2d 255, 259.

We hold that sufficient evidence was presented for the District Court to conclude that Palmer was guilty beyond a reasonable doubt of driving under the influence of alcohol. The judgment of the District Court is affirmed.

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


source: Caselaw Access Project

author: JUSTICE BARZ

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. OWEN TODD EVANS, Defendant and Appellant.
    No. 90-017.
    Submitted on briefs Oct. 19, 1990.
    Decided Feb. 14, 1991.
    247 Mont. 218.
    806 P.2d 512.

      Edward G. Beaudette, Knight, Dahood, McLean and Everett, Anaconda, for defendant and appellant.
    Marc Racicot, Atty. Gen., Elizabeth L. Griffing, Asst. Atty. Gen., Helena, A. Michael Salvagni, County Atty., Marty Lambert, Deputy County Atty., Bozeman, for plaintiff and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

Owen Todd Evans appeals from his September 28,1989, conviction of aggravated burglary, two counts of felony assault, and one count of felony theft by a jury sitting in the District Court of the Eighteenth Judicial District, Gallatin County. We affirm.

Evans presents the following issues:

1. Did the jury improperly find a “stun-gun” to be a weapon for purposes of aggravated burglary and felony assault?

2. Did the District Court err in failing to instruct the jury on the definition of a weapon under Montana law and on the lesser included offense of assault?

3. Was Evans subjected to double jeopardy by being convicted for both aggravated burglary and felony assault?

4. Did the District Court err in failing to exclude from evidence the contents of Evans’ gym bag when it was shown to contain items not listed on the original inventory when the bag was seized?

5. Did the District Court err in allowing the testimony ofWilliam Kayser as an expert in the field of handwriting analysis and questioned document examination?

6. Was the sentence imposed by the District Court improper due to its scope and severity?

7. Did the District Court properly exclude Evans’ parents, who were potential witnesses, from the courtroom?

On the night of March 2, 1989, Holly Engdahl, a student at Montana State University, was awakened in her bedroom by a man wearing a ski mask and gloves. The attacker told Engdahl to “shut up” and jabbed Holly repeatedly with a device later identified as a “stun gun,” leaving burns on Engdahl’s body. Engdahl also suffered bruises and a bloody nose in the attack.

The two struggled, and Engdahl broke free and ran to the basement of her condominium, where she tried the telephone, which was inoperable, and hid for a few minutes. When all was quiet, Engdahl came out of her hiding place. She then heard a noise and went to the gun cabinet. As Engdahl unlocked the gun cabinet, a bullet was fired from upstairs through the floor, striking the gun cabinet and the light switch. Engdahl grabbed a rifle from the gun cabinet and heard the front door shut. Carrying the rifle, she ran in her nightshirt and bare feet through snow to a neighbor’s residence for help.

Engdahl thought that her assailant’s voice sounded similar to that of a neighbor, Owen Evans, whom she had known for a number of years. Evans had sent Engdahl flowers and asked her for dates, which she refused after going out with him twice. Police searched Evans’ condominium, one door down from Engdahl’s residence. They seized several items demonstrating Evans’ obsession with Engdahl, including a calendar noting when various people had come to her condominium. Police also seized a cassette tape of recorded phone conversations between Engdahl and other people and later discovered that Evans had tapped Engdahl’s phone.

The police additionally seized a slide and barrel mechanism for a .45 caliber handgun, a box of instructions for a Defender Pro 40 stun gun, and battery chargers with a 9-volt rechargeable battery, the size necessary to operate the stun gun. Police also took a wallet containing forms of identification belonging to the defendant, cash, and credit cards.

When the police searched Evans’ pickup truck, they discovered two loaded .45 caliber magazines and numerous rounds of .45 caliber ammunition.

On March 4, 1990, the police issued a warrant for Evans’ arrest, and the next day his truck disappeared. One of Evans’ credit card companies, contacted by police, notified them that Evans had used a credit card in Pocatello, Idaho. Pocatello police apprehended Evans who consented to a search of his truck. Police seized a gym bag containing 30 items, including a .45 caliber pistol frame and a Defender Pro 40 model stun gun. Evans later moved for suppression of the evidence contained in the gym bag on the ground that two items in the bag, two tubes of lubricant, were omitted in the inventory of its contents.

Police were able to piece together where Evans had hidden from the time of the attack until he left in his truck. Distinctive footprints led from Engdahl’s condominium to condominium No. 34 owned by a woman who lived out of town. Evans’ fingerprints were found on a light bulb and telephone in the condominium. Some items missing from condominium 34 were later found in Evans’ possession. The police also seized a Ruger .44 caliber pistol taken from the gun case in Engdahl’s condominium, a slide and barrel mechanism for a .45 caliber handgun, a black knit ski mask, and a pair of tennis shoes.

The cartridge casing taken from Engdahl’s condominium matched the .45 receiver taken from Evans’ truck in Pocatello and the barrel and slide found in condominium 34. The hairs found on the ski mask were substantially similar to those taken from Evans’ head. The tennis shoes matched the prints in the snow leading from Engdahl’s condominium to condominium 34.

The morning after the attack, Engdahl’s automobile was discovered missing. Her car was later found in the garage for condominium 34. Plastic garbage bags had been stapled over the garage windows. Staples used to secure the garbage bags matched fired staples from a staple gun seized from Evans’ condominium.

Evans presented no evidence at trial. He was found guilty of all four offenses with which he was charged. During the sentencing hearing, an expert testified that Evans was not suffering from amnesia as he had claimed, that he had a preoccupation with weaponry and methods of restraint, and that he showed indications that he was a sexual psychopath or sexual sadist.

The District Court imposed the following prison sentence on Evans:

1. Aggravated burglary: 40 years with an additional 10 years for use of a weapon, the stun gun.

2. F elony assault: 10 years with 10 additional years for use of the stun gun to be served concurrently with the above sentence.

3. Felony assault: 10 years with 10 additional years for firing a gun, to be served consecutively to the sentence imposed for counts one and two.

4. Felony theft: 10 years to be served consecutively to the sentences for counts one, two, and three.

The District Court designated Evans as a sexual offender to receive sexual offender treatment in Montana State Prison and ordered that Evans not be released for parole until he had satisfactorily completed such treatment. The court also declared Evans ineligible for parole for 25 years.

I.

Did the jury improperly find a “stun-gun” to be a weapon for purposes of aggravated burglary and felony assault?

Owen Evans was convicted of one count of felony assault arising from the attack upon Holly Engdahl with an electric stem gun. The difference between misdemeanor assault and felony assault is whether a weapon is used to cause bodily harm:

“(2) A person commits the offense of felony assault if he purposely or knowingly causes:
“(a) bodily injury to another with a weapon;
“(b) reasonable apprehension of serious bodily injury in another by use of a weapon; or
“(c) bodily injury to a peace officer or a person who is responsible for the care or custody of a prisoner.”

Section 45-5-202(2), MCA. A “weapon” is “any instrument, article, or substance which, regardless of its primary function, is readily capable of being used to produce death or serious bodily injury.” Section 45-2-101(71), MCA. In turn, “serious bodily injury” is defined as follows:

“ ‘Serious bodily injury’ means bodily injury which creates a substantial risk of death or which causes serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ. It includes serious mental illness or impairment.”

Section 45-2-101(59), MCA. Evans claims that the State did not show that a stun gun meets the statutory requirements of §§ 45-2-101 (71) and (59), MCA, by demonstrating that a stun gun is capable of causing death, “substantial risk of death,” or “protracted loss or impairment of the function or process of any bodily member or organ.”

The test for sufficiency of the evidence with respect to a factual element of a crime is whether any rational trier of fact could have found that element beyond a reasonable doubt. State v. Earl (Mont. 1990), 242 Mont. 279, _, 790 P.2d 464, 465, 47 St.Rep. 351, 353. The weapon produced bums on Engdahl’s body, and Engdahl testified that she was burned by “some sort of device that every time it touched me, it set off sparks. And it would drain me. I’d feel real drained after I got hit with it.” Further, the stun gun instructions admitted into evidence stated:

“A short blast of Va second duration will startle an attacker, cause minor muscle contractions and have a repelling effect.
“A moderate length blast of 1 to 4 seconds can cause an attacker to fall to the ground and result in some mental confusion. It may make an assailant unwilling to continue an attack, but he will be able to get up almost immediately.
“A full charge of 5 seconds can immobilize an attacker, cause disorientation, loss of balance, falling to the ground and leave them weak and dazed for some minutes afterward.
“NOTE: Any blast lasting over 1 second is likely to cause your assailant to fall. If you do not help them down, gravity may injure them.”

The instructions show that a stun gun is capable of immobilizing a person and could seriously injure a person who falls after being shocked by the gun.

Previously, instruments potentially less harmful than a stun gun have been found to be weapons. We have upheld the jury’s finding that an ashtray is a weapon. State v. Klemann (Mont. 1981), [_ Mont. _,] 634 P.2d 632. A pair of panty hose qualified as a weapon in State v. Howard (1981), 195 Mont. 400, 637 P.2d 15. In State v. Matson (1987), 227 Mont. 36, 736 P.2d 971, a pellet gun was said to be a weapon.

Statutes in Illinois, Michigan, North Carolina, North Dakota, and the city of New York describe stun guns as weapons. See Ill. Rev. Stat. ch. 38, para. 24-1 (1985); Mich. Comp. Laws § 750.224(a) (Supp. 1990); N.C. Gen. Stat. § 14-269(a) (1990); N.D. Cent. Code § 62.1-01-01(1) (1985); New York City Adm. Code § 10-135(a)-(d). The New York City Council made it an offense to possess or sell a stun gun because stun guns “ ‘may be used by criminals to subdue and disable their victims while engaged in the commission of crimes against them.’” People v. Lynch (N.Y. City Crim. Ct. 1989), 145 Misc.2d 354, 546 N.Y.S.2d 538, 539 (quoting Local Laws 1985, No. 38, Section 1).

Recently, the Ninth Circuit Court of Appeals upheld a conviction of boarding an airplane while concealing a dangerous weapon where the defendant had a concealed stun gun. U.S. v. Wallace (9th Cir. 1986), 800 F.2d 1509, cert. denied, 481 U.S. 1019, 107 S.Ct. 1901, 95 L.Ed. 2d 507. According to federal caselaw, a dangerous weapon is an instrument which is capable of producing death or great bodily harm, a definition similar to the Montana definition of a weapon. See United States v. Dishman (9th Cir. 1973), 486 F.2d 727, 730. Rejecting the defendant’s argument that a stun gun merely incapacitates its victims temporarily and cannot inflict serious permanent harm, the court noted that a single stun gun could incapacitate twenty to forty people at a time and could cause permanent injury to the eyes. Wallace, 800 F.2d at 1513. In Matson the rationale for finding a pellet gun to be a weapon was that “a high-velocity pellet in the eye is certainly capable of inflicting ‘serious bodily injury.’ ” Matson, 227 Mont. at 40-41, 736 P.2d at 974.

The jury’s finding that a stun gun is a weapon is consistent with federal caselaw, statutes of other states, and Montana law and is supported by the evidence. We hold that the evidence is sufficient for the trier of fact to deduce that a stun gun is a weapon capable of producing serious bodily injury as defined by §§ 45-2-101(71) and (59), MCA.

II.

Did the District Court err in failing to instruct the jury on the definition of a weapon under Montana law and on the lesser included offense of assault?

Evans claims that the District Court failed to instruct the jury on the definition of a weapon, which in turn meant that the jury should have been instructed on simple assault, as well as aggravated assault.

Since Evans failed to object to the instruction at trial, he is now precluded from raising the issue on review. Section 46-20-104(2), MCA, provides that “[f]ailure to make a timely objection during trial constitutes a waiver of the objection except as provided in 46-20-701(2).” Since § 46-20-701(2), MCA, does not apply, Evans may not challenge this instruction on appeal. State v. Smith (1984), 208 Mont. 66, 71-74, 676 P.2d 185, 188-190.

In addition, Evans failed to offer an instruction that misdemeanor assault is a lesser included offense of burglary. Error may not be predicated upon the failure to give an instruction when the party alleging the error failed to offer the instruction. State v. Smith (1987), 228 Mont. 258, 265, 742 P.2d 451, 455. We decline to consider this issue because it is not properly before the Court.

III.

Was Evans subjected to double jeopardy by being convicted for both aggravated burglary and felony assault?

Evans claims that since a stun gun is not a weapon, he was subjected to double jeopardy by being punished twice for the same misdemeanor assault arising from the use of the stun gun and also by having two sentencing enhancements for use of a weapon.

Since we have held that the evidence was sufficient for the jury to conclude that the stun gun was a weapon, Evans’ argument is moot.

In addition, Evans asserts that the District Court erred in imposing sentences for both aggravated burglary and felony assault. Aggravated burglary and felony assault are two distinct offenses requiring proof of several different elements. One can commit aggravated burglary without perpetrating aggravated assault, and one can carry out aggravated burglary without performing aggravated assault. State v. Wells (1983), 202 Mont. 337, 352, 658 P.2d 381, 389. As explained in Wells:

“The legislature unmistakably intended multiple punishments for the offenses of aggravated burglary and aggravated assault. If a person enters or remains unlawfully in an occupied structure with the intent to commit an aggravated assault, he has committed a burglary. If he then commits the aggravated assault, he may be convicted of it and sentenced for it in addition to conviction and sentencing for the burglary.”

Wells, 202 Mont. at 354, 658 P.2d at 390. Evans’ conviction of both crimes did not constitute double jeopardy.

IV.

Did the District Court err in failing to exclude from evidence the contents of Evans’ gym bag when it was shown to contain items not listed on the original inventory when the bag was seized?

Evans asserts that the omission of two items from the inventory of the contents of the gym bag demonstrated a substantial change of the evidence warranting that the gym bag and its contents be excluded from evidence. Since the hag contained a strm gun, the evidence was critical to the charges against Evans.

Determination of whether a proper foundation has been laid for the introduction of exhibits into evidence rests with the trial court and its determination will not be overturned on appeal absent clear abuse of discretion. State v. Fox (1984), 212 Mont. 488, 491, 689 P.2d 252, 254. To support proper identification and foundation, the prosecution must show that the exhibit is connected with the crime and identified as such. McGuinn v. State (1978), 177 Mont. 215, 221, 581 P.2d 417, 421.

Montana recognizes two methods of identifying physical evidence: ready identification and chain of custody. When the evidence has a unique characteristic that makes it readily identifiable, chain of custody need not be shown. State v. Conrad (Mont. 1990), 241 Mont. 1, _, 785 P.2d 185, 189, 47 St.Rep. 32, 37. Here, the chain of custody method was appropriate. The burden is on defendant to show any tampering prior to acquisition of the evidence. State v. Walton (1986), 222 Mont. 340, 343, 722 P.2d 1145, 1147. The burden is on the prosecution to demonstrate that after the State acquired the evidence, no substantial change in the evidence occurred and that the evidence was in the State’s continuous possession. Conrad, 241 Mont. _, 785 P.2d at 189, 47 St.Rep. at 37.

The exhibit was identified as the same bag that was seized from Evans’ truck. The officer testified that the bag was in the same condition as when it was seized and established its chain of custody. Two items out of thirty in the bag were omitted from the inventory due to a clerical error.

A defect or deficiency with respect to proper identification, such as a clerical error, goes to the weight of evidence and not its admissibility. State v. Grant (1986), 221 Mont. 122, 134, 717 P.2d 562, 570. As in Grant, the defendant challenged the chain of evidence in front of the jury, and the jury had the opportunity to weigh the evidence. Further, no evidence exists of any change in the items in the bag or tampering with the evidence. We hold that the District Court did not abuse its discretion in admitting the bag and its contents.

V

Did the District Court err in allowing the testimony of William Kayser as an expert in the field of handwriting analysis and questioned document examination?

Evans maintains that Kayser should not have been qualified as an expert pursuant to Rule 702, M.R.Evid., because his training and experience as an expert in handwriting analysis and questioned document examination were inadequate.

Under Rule 702, M.R.Evid., a witness may be qualified as an expert by knowledge, skill, experience, training, or education. The determination that a witness is an expert is largely within the discretion of the trial judge, and such determination will not be disturbed on appeal unless the court is shown to have abused its discretion. State v. Martin (1987), 226 Mont. 463, 736 P.2d 477. “The degree of a witness’ qualifications affects the weight of the expert’s testimony, not its admissibility.” Martin, 226 Mont. at 466, 736 P.2d at 479.

William Kayser, a detective with the Bozeman Police Department, had taken a two-week questioned document course, had worked on approximately 20 criminal cases as a handwriting expert, and was spending approximately 25 percent of his time on the examination of questioned documents. Based on his experience and training, he gave a very complete examination of the documents in this case.

As we have previously stated, “[cjross-examination is the shield to guard against unwarranted opinions.” Stewart v. Casey (1979), 182 Mont. 185, 193, 595 P.2d 1176, 1180. In addition, the defense was free to offer testimony rebutting the detective’s analysis, but did not do so. The District Court instructed the jury that the jury could give expert testimony whatever weight it deserved and could reject the testimony entirely, if in the jury’s opinion the testimony was unsound. We hold that the District Court did not abuse its discretion by allowing Detective Kayser to testify as an expert.

VI.

Was the sentence imposed by the District Court improper due to its scope and severity?

Evans contends that he should not have been charged with felony assault for use of the stun gun because a stun gun is not a weapon under Montana law. Since we have upheld the jury’s treatment of a stun gun as a weapon, the charge of felony assault is appropriate, and the District Court did not err in enhancing Evans’ sentence for use of a weapon.

Evans also alleges that the District Court abused its discretion in denying eligibility for parole for twenty-five years and requiring sexual offender treatment.

Ineligibility for parole is governed by § 46-18-202(2), MCA:

“Whenever the district court imposes a sentence of imprisonment in the state prison for a term exceeding 1 year, the cotut may also impose the restriction that the defendant be ineligible for parole and participation in the supervised release program while serving his term. If such a restriction is to be imposed, the court shall state the reasons for it in writing ...”

The District Court stated in its Reasons for Sentence:

“[The defendant] is deemed to be shrewd, self-serving, deceitful, extremely dangerous, a high risk for escape and for future crimes. The court also takes into account the testimony in this case which indicates a very thorough preparation for the crime on behalf of the defendant, an insidious invasion into the privacy of the victim, the tapping of her phone wires, the ordering of lingerie in her name deliverable to him, the careful analysis of the Montana Criminal Code to see what crimes he would be committing and what the consequences of those crimes would be, a very elaborate attempt to set up the crime and to cover his escape.”

The District Court designated Evans as a “dangerous person,” taking the defendant out of the category of “nondangerous offender” pursuant to § 46-18-404(1), MCA. We have previously held that a defendant need not have had a prior criminal record to “represent a substantial danger to other persons or society,” as required by § 46-18-404(1), MCA. State v. Baldwin (1990), 242 Mont. 176, 184-86, 789 P.2d 1215, 1221-22. Similarly, we hold that the District Court set forth sufficient reasons for finding that Evans is not a nondangerous offender and for limiting his eligibility for parole to 25 years pursuant to § 46-18-202(2), MCA.

In exacting additional sentencing restrictions, such as sexual offender treatment, the District Court must comply with §§ 46-18-201 and 202, MCA. Pursuant to § 46-18-201(l)(a)(x), MCA, reasonable restrictions may include “any ... reasonable conditions considered necessary for rehabilitation or for the protection of society.” Pursuant to § 46-18-202(l)(e), MCA, the court may impose any restriction or condition “reasonably related to the objectives of rehabilitation and the protection of society.”

The sentencing condition must correlate with either the rehabilitation of the offender or the protection of society. State v. Black (Mont. 1990), [245 Mont. 39,] 798 P.2d 530, 534, 47 St.Rep. 1677, 1682. In Black the District Court found the court’s additional sentencing condition of sexual offender treatment reasonable since the record supported the sexual nature of the assault conviction and the defendant’s need for sexual offender treatment. Black, 798 P.2d at 534-35.

The record reveals Evans’ obsession with the victim and suggests a sexual motive for the assault. In addition, during the sentencing hearing, a psychologist testified that Evans could be a “sexual psychopath” or “sexual sadist” and recommended that he be fully evaluated by an expert in this field. We hold that the District Court did not err in imposing the condition of sexual offender treatment as part of Evans’ sentence since it correlates with Evans’ need for rehabilitation.

Evans also alleges that the District Court abused its discretion in imposing the maximum sentence on each count and enhancing the sentence for use of a weapon. To the extent that Evans is disputing the severity of the sentence, he must seek relief from the Sentence Review Division. As we have long held, “ '[w]e will not review a sentence on appeal for mere inequity or disparity. Such a review is to be conducted by the Sentence Review Division.’ ” State v. Almanza (1987), 229 Mont. 383, 386, 746 P.2d 1089, 1090-91 (quoting State v. Lloyd (1984), 208 Mont. 195, 199, 676 P.2d 229, 231).

We hold that the District Court did not abuse its discretion in sentencing Evans.

VII.

Did the District Court properly exclude Evans’ parents, who were potential witnesses, from the courtroom?

Evans complains that the District Court should not have excluded his parents from the courtroom because it deprived him of their comfort and support during the trial.

Sequestration of witnesses is a matter of discretion with the court. State v. Radi (1975), 168 Mont. 320, 326, 542 P.2d 1206, 1210. Although Evans’ parents did not testify, they were listed as potential witnesses at the beginning of the trial. We hold that the District Court did not abuse its discretion in excluding Evans’ parents from the courtroom since they were potential witnesses.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, WEBER, SHEEHY, McDONOUGH and HUNT concur.


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ROY LEE DUNCAN, Defendant and Appellant.
    No. 90-213.
    Submitted on briefs Dec. 20, 1990.
    Decided Feb. 14, 1991.
    247 Mont. 232.
    805 P.2d 1387.

      J. Mayo Ashley, Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., James Yellowtail, Asst. Atty. Gen., Helena, John Flynn, County Atty., Townsend, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Roy Lee Duncan appeals his convictions of robbery and deliberate homicide through accountability following a jury trial in the First Judicial District, Broadwater County. We affirm.

Duncan presents the following issues on appeal:

1. Were Ursla Smith, Sherry Hendricks and Ginny Penn accomplices, and if so, did independent evidence sufficiently corroborate the accomplice testimony?

2. Is the evidence in this case sufficient to support a conviction of deliberate homicide through accountability?

3. Is the felony murder rule under § 45-5-102(l)(b), MCA, constitutional?

In July, 1989, Roy Lee Duncan, along with five other adults and three small children, traveled to Montana in a single car. The adults were members of a self-formed group. The children are incidental to this appeal, and as such, will not be further discussed.

One of the adults, Ernest “Ernie” Mazurkiewicz was considered by other group members as the leader of the group. On June 24, 1989, Ernie instructed the other adults, Roy, Joe Milinovich, Ursla Smith, Sherry Hendricks, and Virginia “Ginny” Perm, to place their fingerprints, made from their own blood, on individual pieces of paper. Each person signed and dated the piece of paper containing their fingerprint. These pieces of paper signified comradery and loyalty to Ernie. Ernie also told the adults that these pieces of paper meant that they were members with him forever, and the only way they could leave the group was “in a pine box.”

While in Big Timber, Montana, Ernie asked Ursla, the treasurer of the group, to give Roy some money to purchase a handgun. Ursla complied, but Roy was unable to purchase the handgun because he was an out-of- state resident. The group eventually drove to Billings, Montana, where Roy and Ursla went to the local driver’s licensing bureau and attempted to obtain Montana driver’s licenses for in-state identification. Both Roy and Ursla paid $12.00 to a clerk at the driver’s licensing bureau in order to apply for a driver’s license, and both received'a receipt from the clerk. Ursla passed the required written driver’s license examination, and the clerk properly validated her receipt making it a learner’s permit. Roy, however, failed the written examination, and accordingly, the clerk did not validate his receipt as a learner’s permit. Ursla, however, upon Ernie’s request, falsified Roy’s receipt to make it appear that Roy passed the test, and was a recipient of a learner’s permit.

The group then left Billings and Roy purchased two handguns by using his falsified learner’s permit as identification; one of the handguns, a .22 caliber FIE revolver, was purchased in Columbus, Montana, and the other, a .25 caliber Loricin semiautomatic, was purchased in Big Timber, Montana. Ursla testified that following the purchases of the handguns, she overheard Ernie telling Roy how to commit robberies. Sherry and Ginny testified that following the purchases of the handguns, they were aware that the handguns were going to be used to rob.

The group proceeded west on Interstate 90 through Montana, and on the evening of July 24,1989, stopped at a convenience store outside of Bozeman. Roy, Ernie, Ursla, and Joe went inside the convenience store; Sherry and Ginny remained in the car. While in the convenience store, Roy engaged in conversation with Larry Beckwith, who was en route to Alaska where he had an employment opportunity. Following his conversation with Larry, Roy informed Ernie that Larry could obtain employment for them in Alaska.

Together with Ernie, Roy again talked with Larry to further pursue the notion of possible employment opportunities in Alaska. Apparently, after this conversation and a phone call placed by Larry to Alaska, Larry agreed to take Roy, Ernie, and Joe to Alaska and help them find jobs.

Larry and the group left the convenience store simultaneously and headed-north toward Townsend, Montana. Joe rode with Larry in his red pick-up truck and the rest of the group followed Larry’s pick-up in their car. Shortly after leaving the convenience store, Larry’s pick-up truck pulled off the highway; the group’s car also stopped. Roy then joined Larry and Joe in the pick-up and the vehicles once again continued to drive down the highway with the pick-up leading the way. Later, the pick-up pulled off the highway again and the car likewise pulled over. A brief exchange occurred, but the riders in the vehicles remained the same: Larry, Roy, and Joe rode in the pick-up and the rest of the group rode in the following car.

Sometime later, Larry’s pick-up began to swerve on the highway; Ernie, the driver of the group’s car, passed the pickup, drove through Townsend, and then pulled the car over to the side of the highway and waited for the pick-up. The pick-up eventually pulled up behind the group’s car, whereby the pick-up then led the car down a secondary road off of the main highway.

At this point Ernie asked Ursla to hand him Duncan’s handgun, the loaded .22 caliber FIE revolver, which was located in the passenger side panel of the car; Ursla complied. Both vehicles once again pulled off the road. Ernie got out of the car and joined Roy who was standing in the roadway. Joe was standing in a nearby ditch straightening his clothes. Ernie handed Roy the handgun and told Roy that the group was going to spend the night at a rest area. Ernie then got back into the car, and the car drove off, leaving Roy, Joe, Larry and the pick-up behind.

About forty-five minutes later, the car and the pick-up met at an exit ramp outside a nearby town. After both vehicles pulled over, Roy got out of the pick-up and handed Larry’s wallet to Ernie; Ernie gave the wallet to Ursla for safe-keeping. The vehicles then proceeded to a gas station and later to a rest area. At the rest area, Ursla testified that after she inquired about what happened on the secondary road, Roy stated that he “overtook” Larry and “sent Mr. Beckwith to hell where he belonged.” Ginny testified that Roy said “that he had got the guy, didn’t know how many times he had shot him and that Joe had hit him with a rock but he wouldn’t go down.” Additionally at the rest area, Ernie, who had regained possession of the .22 caliber FIE revolver, emptied the handgun and took out the shells.

The car and pick-up proceeded on to a second rest area, and stayed a brief time. Upon leaving this second rest area, the car and pick-up truck headed south on Interstate 15. Ursla, Sherry, and Ginny testified that, at this point, they fell asleep in the car. The three testified that they were awakened when Roy and Joe, who had been riding in Larry’s pick-up, entered the car with Larry’s possessions. At this point, the three women became aware that the pick-up was ablaze.

Larry’s truck was later reported to be burning on Interstate 15 approximately six miles north of Dillon, Montana, and authorities later identified that the pick-up belonged to Larry from the pick-up’s license plate.

At around noon on July 25, 1989, a detachment from the Montana National Guard discovered Larry’s body on an abandoned portion of Highway 12 approximately 2.2 miles north of Townsend, Montana. An investigation revealed that Larry had been robbed due to the absence of his identification, wallet, or personal property, and the fact that Larry’s rear pant’s pockets were turned inside out. An autopsy revealed that Larry had died at around midnight on July 25, 1989, from “internal bleeding and injuries of the spinal cord and structures at the base of the skull due to the gunshot wound of the head.” A firearms expert testified that the bullets recovered from Roy’s body were .22 caliber and could only have been fired from one of “approximately eight different brands of firearms” including an FIE revolver.

The group, meanwhile, drove to Las Vegas, Nevada. Roy, Joe, and Ginny separated from the group in Las Vegas, and proceeded to Texas. Some time later, law enforcement officials in Las Vegas, determined that Ernie, Ursla, and Sherry may have been involved in the homicide of Larry in Montana. When questioned by the officials, all three discussed Larry’s homicide and implicated various members of the group. Subsequently, Roy was also arrested in Las Vegas after he returned from Texas, and Ginny was arrested in Springfield, Missouri, where she had fled after leaving Texas. At the time Roy was arrested, he was wearing a belt owned by Larry, which had Larry’s name printed on the back. Joe was arrested sometime later in New Jersey.

Following his extradition to Montana, Ernie was charged with robbery and deliberate homicide through accountability. Alternatively, he was charged with deliberate homicide under the felony murder rule. Initially, Ernie pled not guilty to these charges, however, on December 19,1989, he changed his pleas and pled guilty to robbery through accountability and deliberate homicide under the felony murder rule. He is currently serving sentences in prison for these offenses. Joe later pled to the same charges as Ernie, and is also currently imprisoned. The original charges against Ursla were reduced to robbery. Ursla pled guilty to robbery and is currently imprisoned for this offense. The charges against Sherry and Ginny were dismissed.

On October 13,1989, following his extradition from Las Vegas, Roy was charged by information with the offense of Count I, deliberate homicide under § 45-5-102(l)(a), MCA, charged alternately as Count II, deliberate homicide through accountability under §§ 45-5-102(l)(a), 45-2-301, and 45-2-302, MCA, and Count III, deliberate homicide under the felony murder rule, § 45-5-102(l)(b), MCA. Later, this information was amended to charge the offenses of Count I, robbery under § 45-5-401, MCA, and Count II, deliberate homicide through accountability under §§ 45-5-102(l)(a), 45-2-301, and 45-2-302, MCA, charged alternatively as Count III, deliberate homicide under the felony murder rule, § 45-5-102(l)(b), MCA. From the record, testimony at trial established that while Roy was imprisoned at the Broadwater County jail awaiting trial, he admitted to a cellmate that he shot Larry five times in the face.

Following a jury trial on January 5,1990, Roy was found guilty of Count I, robbery, and Count II, deliberate homicide through accountability. On March 19,1990, the District Court sentenced Roy to forty years imprisonment on Count I and 100 years imprisonment for Count II, both sentences to run consecutively. The District Court additionally designated Roy a dangerous offender for parole purposes. From his convictions, Roy appeals.

1. Were Ursla Smith, Sherry Hendricks and Ginny Penn accomplices, and if so, did independent evidence sufficiently corroborate the accomplice testimony?

First, appellant asserts that Ursla, Sherry and Ginny were accomplices with Roy because all three women were members of this self-formed group and actively participated in the group’s activities. Moreover, the appellant asserts that these women were accomplices because they were present during the commission of the crimes, and knew what was unfolding. Second, appellant asserts that as accomplices, their testimony was not sufficiently corroborated by other witness testimony at trial as required under § 46-16-213, MCA.

The State argues that Sherry and Ginny were not accomplices because they were not involved in the planning and commission of Roy’s offenses, and therefore, their testimony is not subject to § 46-16-213, MCA. The State further argues that although Ursla was an accomplice and was subject to corroboration under § 46-16-213, MCA, independent evidence established a nexus between Roy and the robbery and homicide of Larry, which corroborated Ursla’s testimony. We agree with the State’s contentions.

The definition of an accomplice is well-settled:

“This concept has been the subject of much attention in case law. We have emphasized that mere presence at the scene of a crime is not enough to charge one as an accomplice. [Citations omitted.] Moreover, the knowledge that a crime is about to be committed does not make one an accomplice. [Citations omitted.] A true accomplice is:
“ ‘one who knowingly, voluntarily and with common intent with the principal offender imites in the commission of a crime ... One may become an accomplice by being present and joining in the criminal act, by aiding and abetting another in its commission, or not being present, by advising and encouraging its commission; but knowledge and voluntary actions are essential in order to impute guilt.’ ” (Citations omitted.)

State v. Nordahl (1984), 208 Mont. 513, 517, 679 P.2d 241, 243. Here, although group members Sherry and Ginny were at the scene of the crimes, and were aware that the handguns purchased by Roy were going to be used to rob, no evidence exists in the record to indicate that they knowingly or voluntarily and with common intent with Roy, united in the preparation, planning, or commission of the robbery and homicide of Larry. We therefore hold that Sherry and Ginny were not accomplices, and accordingly, their testimony was not subject to the corroboration requirements under § 46-16-213, MCA.

Ursla, however, was an accomplice to these crimes. The record clearly indicates that she knowingly and voluntarily participated in procuring the handgun used in the robbery and homicide of Larry by falsifying Roy’s Montana identification. Therefore, Ursla’s testimony is subject to § 46-16-213, MCA, which provides:

“A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, as defined in 45-2-301, unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”

(Emphasis added.) Here, because Sherry and Ginny were not accomplices, the matter of corroborating Ursla’s testimony is clearly established by the record — virtually all of the aspects of Ursla’s testimony appeared in either or both of Sherry’s or Ginny’s testimony. Therefore, the testimony of Sherry and Ginny corroborated Ursla’s testimony.

2. Is the evidence in this case sufficient to support a conviction of deliberate homicide through accountability?

The standard of review for sufficiency of the evidence is, “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573; restated in State v. Wilson (Mont. 1981), [_ Mont. _,] 631 P.2d 1273, 1278-79; State v. Geyman (1986), 224 Mont. 194, 195-96, 729 P.2d 475, 476; State v. Gilpin (1988), 232 Mont. 56, 68, 756 P.2d 445, 451; State v. Kao (Mont. 1990), 245 Mont. 263, 800 P.2d 714, 47 St.Rep. 2100, 2102; State v. Walters (Mont. 1991), [247 Mont.84, 806 P.2d.497], 48 St.Rep. 102, 106.

Appellant argues that the record does not contain sufficient evidence to prove that Roy actually shot and killed Larry. Appellant’s argument lacks merit. The evidence did not have to prove that Roy actually shot and killed Larry as Roy was charged and convicted of deliberate homicide through accountability under §§ 45-5-102(l)(a), 45-2-301, and 45-2-302, MCA. The amended information, in Count II, alleged that Roy, “purposely or knowingly caused the death of Larry Beckwith by shooting him with a gun, or, with the purpose of promoting or facilitating the commission of such offense, aided or abetted Joseph Milinovich in the planning or commission of the offense of the deliberate homicide of Larry Beckwith . ...” The record, through the testimony of Ursla, Sherry and Ginny, as well as other witnesses, overwhelmingly indicates that Roy either shot Larry, or aided or abetted Joe in doing so. Roy was the person who approached Larry at the convenience store near Bozeman, and gained Larry’s trust. Roy was handed the .22 caliber FIE revolver shortly before Larry’s death. Roy admitted that he shot Larry to other group members shortly after the shooting. Roy was arrested wearing Larry’s belt, and while imprisoned and awaiting trial, Roy admitted to a cell-mate that he shot Larry in the face five times. Moreover, even if Roy did not actually shoot Larry, Roy aided and abetted Joe, the only other person, besides Larry present in Larry’s pick-up that night, by giving Joe the .22 caliber FIE revolver.

Appellant also argues that absent Ursla, Sherry, and Gunny's testimony, the so-called accomplice testimony, the record contains insufficient evidence to convict Roy of deliberate homicide. Because we have already held that Sherry and Ginny were not accomplices, and that their testimony properly corroborated Ursla’s testimony, no need exists to farther discuss appellant’s latter contention. We therefore hold that sufficient evidence existed in the record to support Roy’s conviction of deliberate homicide through accountability.

3. Is the felony murder rule under § 45-5-102(l)(b), MCA, constitutional?

Appellant moved to dismiss Count III of the amended information, deliberate homicide under the felony murder rule, on December 28,1989. The record does not indicate whether the District Court ruled on the appellant’s motion. Because there is no record of the dismissal of Count III, the appellant raises the issue of the constitutionality of the felony murder rule in this appeal. Appellant’s argument is inappropriate with regard to this case. The jury did not convict Roy of the alternative charge of Count III. Accordingly, this issue is not ripe for determination. We therefore decline to discuss the constitutionality of the felony murder rule with regard to this case.

Affirmed.

JUSTICES WEBER, HUNT, BARZ and McDONOUGH concur.


author: JUSTICE WEBER

text:
    ROBERT C. EMERSON, Plaintiff and Appellant, v. TERRY L. BOYD, d/b/a BOYD BROTHERS TRUCKING, Defendant and Respondent.
    No. 90-346.
    Submitted on briefs Nov. 1, 1990.
    Decided Feb. 14, 1991.
    247 Mont. 241.
    805 P.2d 587.

      Robert G. Olson, Frisbee, Moore, Stufft & Olson, Cut Bank, for plaintiff and appellant.
    Mary L. Zemyan, Wolf Point, for defendant and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Robert C. Emerson, plaintiff, sued Terry L. Boyd, defendant, for breach of contract in the District Court for the Fifteenth Judicial District, Roosevelt County. Plaintiff secured a default judgment against defendant for $12,849.04, plus costs of $99.90. Plaintiff levied execution upon defendant’s bank account. Upon motion the District Court concluded that the civil jurisdiction of the case had been pre-empted by the Tribe’s exercise of jurisdiction. The District Court vacated the default judgment and directed the return to the defendant of any monies collected through execution. Plaintiff appeals. We affirm.

The issue is whether the Montana District Court may assume jurisdiction in this contract claim.

The initial question is whether the action arose on the Indian reservation. In determining the location of a contract dispute, we hereby adopt the following language of the Ninth Circuit in R.J. Williams Co. v. Fort Belknap Housing Auth. (9th Cir. 1983), 719 F.2d 979:

“Generally courts look to (1) the place of contracting, (2) the place of negotiation of the contract, (3) the place of performance, (4) the location of the subject matter of the contract, and (5) the place of residence of the parties, evaluating each factor according to its relative importance with respect to the dispute. Restatement (Second) of Conflict of Laws § 188(2) (1971).

Both plaintiff and defendant are members of the Fort Peck Tribes, with the defendant residing on reservation, and the plaintiff residing off reservation. Contract negotiations took place over the telephone with defendant located on reservation and plaintiff off reservation. The written contract between the parties was signed on the reservation. The dispatching activities of the trucking company were conducted by the defendant on the reservation. Payments were mailed to a bank off the reservation. Nearly all loads were picked up at points or delivered to points out of state or in Montana outside the exterior boundaries of the reservation. We conclude the activities occurring on the reservation are sufficiently substantial to establish that the contract dispute arose on the reservation.

Before a Montana District Court can assume civil jurisdiction in an action which arose on a reservation to which an Indian is a party, the Montana court must apply the three-prong test of Iron Bear v. District Court (1973), 162 Mont. 335, 346, 512 P.2d 1292, 1299. We are not concerned with the first two prongs of the test as there are no federal treaties or statutes which have pre-empted state jurisdiction, and there is no claimed interference with tribal self-government. This leaves the third prong: whether the Tribal Court is currently exercising jurisdiction or has exercised jurisdiction in such a manner as to pre-empt state jurisdiction.

The Fort Peck Indian Tribes have affirmatively assumed civil jurisdiction over actions where one of the parties is an Indian who resides on the Fort Peck Reservation. Subchapter 1, § 107, Fort Peck Tribes Comprehensive Code of Justice (1983). We conclude that the Fort Peck Indian Tribes have assumed civil jurisdiction over contract disputes which arose on the reservation and that the third prong of the Iron Bear test has been met. As a result Montana is prevented from assuming jurisdiction. We affirm the District Court.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, HUNT, McDONOUGH, SHEEHY and BARZ concur.


author: JUSTICE McDONOUGH

text:
    NOEL L. SUNDHEIM, Bertha SUNDHEIM and Leona M. Johnson, Plaintiffs and Appellants, v. REEF OIL CORPORATION, a Montana corporation, WOODS PETROLEUM CORPORATION, a foreign corporation, and ANDY HIESTAND, as Personal Representative of the Estate of FRANK HIESTAND, deceased, d/b/a Saratoga Production Company, Defendants and Respondents.
    No. 89-498.
    Submitted on briefs Jan. 31, 1991.
    Decided Feb. 14, 1991.
    247 Mont. 244.
    806 P.2d 503.

      Charles L. Neff; Bjella Neff Rathert Wahl & Eiken, Williston, N.D., for plaintiffs and appellants.
    Loren J. O’Toole, O’Toole & O’Toole, Plentywood, for Reef Oil Corp. & Andy Hiestand.
    W. Anderson Forsythe, Moulton, Bellingham, Longo & Mather, Billings, for Woods Petroleum.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Plaintiffs, Noel Sundheim, Bertha Sundheim and Leona Johnson (hereinafter referred to as Sundheims) appeal from an order of the Fifteenth Judicial District, Roosevelt County, granting summary judgment in favor of defendants, Reef Oil Company, the estate of Frank Hiestand, and Woods Petroleum Corporation. We affirm in part and reverse in part.

The issues presented for our review are:

1. Whether the District Court correctly granted summary judgment on the Sundheims’ allegations of breach of the implied covenants to protect and reasonably develop the leasehold and breach of the prudent operator standard, which were asserted against Reef Oil Company and the estate of Frank Hiestand;

2. Whether the District Court correctly granted summary judgment in favor of Woods Petroleum Corporation on the grounds that Sundheims’ claims against it were barred by the statute of limitations;

3. Whether the District Court correctly assessed Rule 11 sanctions against Sundheims and their attorney.

The Sundheims are the owners of mineral interests in land located in Roosevelt County in northeastern Montana. In May of 1967, they entered into oil and gas leases covering these interests. Those leases were entered into with W.C. Kaufman and they had ten year primary terms.

On March 10, 1969, the leases were assigned to Woods Petroleum Corporation. In 1974, Woods Petroleum entered into a Dry Hole Contribution Agreement with Anadarko Production Company, which had a lease on land adjacent to the Sundheim leasehold. Woods agreed to provide financial assistance in drilling a well on a lease held by Anadarko. In return, Anadarko promised to share all well data and structural information obtained through drilling the well. Anadarko found oil and the well initially produced 596 barrels of oil a day.

Woods Petroleum decided to drill its own well on the Sundheim leasehold. This well, Sundheim No. 1, was completed in March of 1975 and had an initial production of 419 barrels per day.

In 1976, production on the Sundheim No. 1 well began to decline. In an effort to increase production Woods installed a pumping unit on the well. Production, however, continued to decline and in 1977 the sucker rods broke and production ceased.

Following this breakdown, Woods Petroleum considered whether further investment should be made to rework the well and re-establish production. Woods determined that no more than $20,000.00 would be spent on reworking the well. According to an internal memorandum, its engineers determined that low production was caused by reservoir conditions. No mention is made of the possibility that the well was not producing large enough amounts of oil due to mechanical problems. Some work was then done on the well; however due to Woods’ belief that the decline in production was caused by reservoir conditions, the well was cemented in, on July 20, 1977.

Following this discontinuance, Reef Oil Corporation contacted Woods Petroleum. Reef Oil was interested in acquiring the open well bore, tubing, wellhead, tanks and other equipment still intact and left at the well in return for Reef Oil assuming responsibility for operating and eventually plugging the well. Woods agreed to this arrangement and in July of 1978 the Sundheim No. 1 well was “sold” to Reef Oil. Before this “sale” took place Reef Oil entered into new oil leases with the plaintiffs. These leases provided for a term of three years and contained provisions for annual delay rentals of $1.00 per acre per year.

According to deposition testimony, Reef Oil did not have the financial ability to redrill the well. Apparently, it was Reef Oil’s intent to acquire the well and then attempt to interest others to develop the prospect. Reef Oil retained E. Earl Norwood, a certified petroleum geologist to do an in-depth geologic analysis. Norwood reported the decline in production was caused by mechanical problems and was not caused by reservoir conditions. This conclusion is supported by another engineer, Robert M. Watkins. According to Mr. Watkins, the well’s low production probably resulted because it was not back-flushed with fresh water to clear out salt accumulations which restricted the flow of oil.

Reef Oil did not have the financial ability to rework the well. Consequently, nothing was done with it until the early part of 1980, when Reef Oil assigned the Sundheim leasehold to Frank Hiestand. In 1981, Hiestand worked out a farmout arrangement with a Canadian Oil Company who drilled a new well, the Sundheim No. 2 well, which was 300 feet to the south of the Sundheim No. 1 well. This new well yielded only salt water. According to the Sundheims, as much as 145,000 barrels of oil were drained from their leasehold by adjacent oil wells during the time period between 1977 and 1981.

On January 30,1986 the Sundheims filed a complaint against Reef Oil Corporation, Woods Petroleum Corporation, Frank Hiestand and American Penn Energy. American Penn Energy was dismissed by stipulation of the parties. In their amended complaint against the remaining three defendants, the Sundheims set forth three separate counts alleging that the defendants breached the implied covenant to protect their leasehold from drainage, the implied covenant to reasonably and prudently develop the leasehold, and the implied covenant to reasonably and prudently operate the existing Sundheim No. 1 well. Frank Hiestand subsequently died and Andy Hiestand, the personal representative of his estate was substituted as a party-defendant.

On February 17, 1987, Reef Oil moved for summary judgment. Reefs motion was granted on May 18, 1987. In its memorándum in support of its order of summary judgment, the District Court held that the Sundheims were barred from bringing an action for breach of the implied covenant to protect from drainage because they had not served written notice upon Reef Oil and demanded it drill an offset well. The court further held that Reef Oil did not breach the implied covenant of reasonable development because the Sundheims accepted delay rentals and because this covenant does not arise until after production has been obtained on the leasehold. The District Court dismissed Sundheims’ third cause of action on the ground that the implied covenant to prudently operate a well is not an independent cause of action.

Woods Petroleum moved for summary judgment in January of 1988. The District Court granted this motion and held that any claims against Woods Petroleum were barred by the statute of limitations, § 27-2-202(1), MCA. On August 4,1989, the District Court dismissed Hiestand from the action for the same reasons contained in its order granting summary judgment in favor of Reef Oil. Finally, the District Court, believing that the Sundheims’ attorneys purposely misled it, assessed Rule 11 sanctions against the plaintiffs and their attorney in the amount of $13,924.90. This appeal followed.

I. Reef Oil Corporation and Frank Hiestand.

As stated above, the Sundheims based this lawsuit on three separate allegations. In summary, their amended complaint alleged that the defendants breached the implied covenants of protection, to reasonably develop the leasehold and to prudently operate the existing well. As a result, Sundheims allege the defendants are liable for damages. The District Court granted summary judgment in favor of defendants Reef Oil and Frank Hiestand on each of these counts. We will discuss each issue separately.

A. The Implied Covenant to Protect from Drainage.

Each of the Sundheims’ allegations are based upon covenants which have been implied by common law, into oil and gas leases. The purpose of the implied covenants is to fully effectuate the intentions of the parties to a lease. Obviously, the primary intention is to produce oil and gas for a profit and to obtain royalties for the lessor. U.V. Industries Inc. v. Danielson (1979), 184 Mont. 203, 602 P.2d 571. To insure this result is obtained the courts have implied, through the express terms of oil and gas leases, certain duties which must be performed by the lessee. These duties include the covenant to protect from drainage and the covenant to reasonably develop the leasehold, both of which are at issue in the case now before us.

The Sundheims maintain that Reef Oil Corporation and Frank Hiestand breached the covenant to protect their leasehold from drainage. In their brief, the Sundheims estimate that as much as 145,000 barrels of oil were drained from their leasehold by adjacent oil wells. They further argue that Reef Oil and Hiestand, in accordance with their duty to protect, should have drilled offset wells in order to capture the oil before it was drained. Because these defendants failed to drill such wells, they breached the covenant to protect, and are therefore liable for damages for the value of the oil drained from Sundheims’ leasehold.

The District Court did not reach the merits of the Sundheims’ argument because it found that they were barred from asserting their claim due to the fact that they failed to give written notice of the drainage or demand that an offset well be drilled. In reaching its conclusion, the court relied upon U.V. Industries Inc. v. Danielson (1979), 184 Mont. 203, 602 P.2d 571, where we stated:

“The offset drilling rule generally requires the lessor ... to serve written notice or demand upon the lessee or its assigns to drill an offset well as a precondition to the latter’s duty to drill. Supra, at 584.”

Based upon this language, the District Court interpreted U.V. Industries very narrowly to hold that the Sundheims could not bring an action for breach of the implied covenant to protect. All parties to this action agree that no written notice or demand was served.

In U. V. Industries the plaintiffs brought a lawsuit alleging that the defendants failed to protect their leasehold from drainage and were liable for damages. The case involved four defendants. Two of the defendants owned an interest in a well, which was located on adjoining property. Apparently, this well caused the drainage to the plaintiff’s leasehold.

Faced with these facts, we held that written notice or demand was not required to be given the two defendants who held interests in the adjoining well. We based this conclusion upon the fact that these two defendants, through their ownership of the draining well, obviously knew of the necessity to protect the plaintiffs leasehold. Thus, application of the notice requirement was unnecessary. Two other defendants who held no such interest, were not deemed to have any knowledge of the drainage. Therefore, it was held that they must be given notice of their obligation to protect before any duty on their part would arise.

The District Court interpreted U.V. Industries to hold that written notice or demand is always a prerequisite to a lawsuit for breach of the covenant to protect, unless the defendant owns the adjoining well which is draining the plaintiffs property. The Sundheims, on the other hand, maintain that under U.V. Industries, written notice or demand is only required when the defendant does not have knowledge of the drainage. According to Sundheims, a notice requirement in a situation when a defendant already has knowledge would be wholly -unnecessary. Because there is evidence which tends to establish that Reef Oil and Hiestand knew of the draining of their leasehold, the Sundheims further argue that the District Court erred in granting summary judgment based upon lack of notice.

We agree with the Sundheims’ interpretation of U.V. Industries. There is no sound reason to require a lessor to give a lessee notice of drainage in an action for damages, if the lessee already has such knowledge. Under the implied covenant to protect, a lessee is charged with the duty to act as a reasonable operator and to protect the leaseholder’s interest. This duty requires the lessee to manage the leasehold in such a manner as to bring profit to both himself and the lessor. Obviously, if the lessee failed to drill an offset well, while knowing the leasehold was being drained, he would fail to meet this duty. In such a circumstance, he should not be excused for the sole reason that the lessee failed to comply with a requirement that is unnecessary.

Our conclusion on this issue is consistent with the overall holding of U.V. Industries. Both the defendants and the District Court based their conclusion upon a single statement which occurred in a lengthy and complicated opinion. However, the statement relied upon must be read and understood within the context of the entire opinion.

In U.V. Industries, we stated that generally a lessor must “serve written notice or demand upon a lessee to drill an offset well as a precondition to the latter’s duty to drill.” U.V. Industries, 602 P.2d at 584. However, as rationale for this general rule we quoted a passage from an earlier case which stated:

“ ... A usual implied covenant is one against drainage, which is not here involved. The necessity of drilling offset wells is not brought about by the acts of the lessee, but by those of third parties, unless the lessee owns adjoining acreage. Hence, before a breach of an implied covenant could be claimed as substantial, the necessity of protecting the leased premises must be brought home to the lessee in some manner by reasonable notice or demand on the part of the lessor.” (Emphasis supplied.) Berthelote v. Loy Oil Co. (1933), 95 Mont. 434, 446, 28 P.2d 187, 190.

As this passage clearly indicates, it is only reasonable notice which is required as a precondition to the duty to drill an offset well. The passage does not indicate that written notice is required. Moreover, a close reading of U.V. Industries reveals that the written notice requirement was mentioned only once. Throughout the rest of the opinion, this Court spoke in terms of reasonable notice, or notice.

Clearly, the reasonable notice requirement is satisfied when the lessee has knowledge of drainage. Section 1-1-217, MCA, defines notice as follows:

“1-1-217. Notice — actual and constructive. (1) Notice is:
“(a) actual whenever it consists of express information of a fact;
“(b) constructive whenever it is imputed by law.
“(2) Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact has constructive notice of the fact itself in all cases in which, by prosecuting such inquiry, he might have learned such facts.”

As this statute indicates, a person is deemed to have constructive notice when he is in possession of all of the relevant facts and circumstances. Certainly, constructive notice rises to the level of reasonable notice as required by Berthelote v. Loy Oil Co. (1933), 28 P.2d 187, 95 Mont. 434. Therefore, we now clarify our earlier holding in U.V. Industries and hold that before a lessee’s duty to drill an offset well arises, he must have reasonable notice of the necessity to protect the leasehold. Such notice can either be express, from the lessor, or constructive, gained from the surrounding circumstances. Further support of this holding is found in the general rule that oil and gas leases are to be construed liberally in favor of the lessor and against the lessee. See Clawson v. Berklund (1980), 188 Mont. 48, 610 P.2d 1168; Thomas v. Standard Development Co. (1924), 70 Mont. 156, 224 P. 870.

This rule is only applicable to those cases in which a lessor is seeking relief in the form of damages, however. If he is seeking other forms of relief, such as forfeiture of the lease, he must give written notice in order to give the lessor a chance to cure the breach. See Summers, Oil and Gas Volume 2 § 412 (1990).

The burden of proof is upon the lessor to establish the fact that the lessee knew of the drainage. Therefore, upon remand, the Sundheims must prove that both Reef Oil Corporation and Frank Hiestand knew or should have known that the Sundheim leasehold was being drained by the adjacent wells.

B. The Implied Covenant to Reasonably Develop the Leasehold.

As their second issue, the Sundheims’ argue that the District Court erred in granting summary judgment on their claim that Reef Oil and Frank Hiestand breached the implied covenant to reasonably develop the leasehold. The District Court held that this covenant was not breached because the Sundheims accepted delay rental payments. As further justification for its ruling, the court held that the covenant to reasonably develop does not arise until after production has been obtained on the leasehold. Because we uphold the lower court based upon the prior reasoning, we will not review the latter.

In short, the Sundheims maintain that their acceptance of delay rental payments does not excuse the defendants from fulfilling their duty to reasonably develop their leasehold. They argue that because oil was discovered and pumped in paying quantities from the Sundheim No. 1 well, Reef Oil and Frank Hiestand had a continuing duty to further develop the leasehold. According to Sundheims, the payment of delay rentals has no bearing on this duty.

We need not dwell upon the legal intricacies of the Sundheims’ argument. The issue can be resolved through resort to the clear wording of the leases. Paragraph 2 of these leases states:

“It is agreed that this lease shall remain in force for a term of three years from date and as long thereafter as oil or gas of whatsoever nature or kind or either of them is produced from said land or premises pooled therewith or drilling operations are continued as hereinafter provided. If prior to discovery of oil or gas on said land or on acreage pooled therewith, lessee should drill a dry hole or holes thereon, or if after discovery of oil or gas production thereafter should cease for any cause, this lease shall not terminate if lessee commences’ additional drilling or reworking operations within sixty (60) days thereafter or (if it be within the primary term) commences or resumes the payment or tender of rental on or before the rental paying date next ensuing after expiration of three (3) months from the date of completion of a dry hole or cessation of production. (Emphasis added.)”

Paragraph 4 of the leases states:

“If operations for the drilling of a well for oil or gas are not commenced or if there is no oil or gas being produced on said land or on acreage pooled therewith as hereinafter provided on or before one year from the date hereof, this lease shall terminate as to both parties unless the lessee on or before that date shall pay or tender to the lessor... the sum of $320.00 which shall operate as a rental and cover the privilege of deferring the commencement of operations for drilling of a well for twelve months from said date. In like manner and upon like payments or tenders the commencement of operations for drilling of a well may be further deferred for like periods of the same number of months successively.”

According to these two sections of the Sundheim leases, Reef Oil had a duty to explore for or produce oil and gas from the Sundheim leasehold. If it failed to adequately carry out this duty, the terms allowed the Sundheims to terminate the lease. However, Reef Oil could, instead of engaging in drilling or production operations, make delay rental payments of $320.00 per year. Upon payment of this sum, Reef Oil was excused from the drilling and operating requirements contained in the lease.

It is undisputed that the delay rental payments were made by Reef Oil and were accepted by the Sundheims. Therefore, by the terms of the contract, Reef Oil was not impliedly required to engage in further development of the Sundheim leasehold. The rental clauses contained in the lease were presumably bargained for and are supported by consideration. We will not look beyond these express provisions in order to impose a duty upon Reef Oil which is in contravention of their terms. In short, the rental clause contained in the Sundheim leases relieves Reef Oil of all drilling obligations save that of offset drilling. Williams & Meyers, Oil and Gas Law § 835.1 (1990). See also Hemingway, Law of Oil and Gas § 8.10 2d Ed. (1983). The duty to drill an offset well is imposed through the covenant to protect, not through the covenant to reasonably develop. Therefore, there was no breach of the development covenant and summary judgment on this issue was properly granted.

C. Prudent Operator/Reasonable Man Standards.

The Sundheims maintain that Reef Oil and Frank Hiestand, in addition to breaching implied covenants to the lease, also violated the prudent operator standard. This standard is best understood through analogy to the reasonable man standard of tort law. Simply stated, the prudent operator is a reasonable man engaged in oil and gas operations. He is a hypothetical oil operator who does what he ought to do not what he ought not to do with respect to operations on the leasehold. Williams and Meyers, Oil and Gas Law § 806.3(1990).

Sundheims argue that Reef Oil and Frank Hiestand breached this obligation because they did not develop the leasehold. Instead, they took the lease for speculative purposes, and while they were searching for an individual to commence drilling operations substantial drainage occurred. The District Court granted summary judgment in favor of the defendants on this count. It held that the prudent operator standard was not in itself an independent cause of action and the prudent operator standard is applied in conjunction with and serves to define the other implied covenants.

We agree with the District Court. We have previously held that the Sundheims have presented a valid cause of action for breach of the implied covenant to protect. The duty to act as a prudent operator underlies this contractual obligation. In order to prevail on this issue, the Sundheims must prove at trial that, under the circumstances of their case, Reef Oil and Frank Hiestand did not act as reasonably prudent operators to prevent drainage. Proof of this issue necessarily entails a showing that actual drainage occurred and that an offset well would have produced oil in paying quantities. Williams and Meyers, Oil and Gas Law § 822 (1990).

Proof of the second element of the above test would necessarily establish that the defendants failed to act as reasonably prudent operators and, assuming drainage can be established, that they breached the covenant to protect. This rule of law is supported by the rationale that a reasonably prudent operator would drill an offset well if he could gain a profit and if it was necessary to protect the value of the lease. On the other hand, no breach of this standard, could be established if it cannot be shown that such a well could be drilled at a profit to the lessee. Accordingly, in such circumstances there would be no breach of the covenant to protect.

It is clear from the facts of this case, that the Sundheims allegations of breach of the covenant to protect and breach of the prudent man standard are one in the same. Proof of one necessarily entails proof of the other. Therefore, the District Court correctly granted summary judgment dismissing the allegation alleging breach of the prudent operator standard.

II. Woods Petroleum Corporation.

The District Court granted summary judgment in favor of Woods Petroleum Corporation on the grounds that all claims against it were barred by the statute of limitations. This action was brought on the 30th day of January 1986. The applicable statutes of limitations in this case are eight years for breach of the terms* of a written contract, § 27-2-202(1), MCA, three years for allegations of negligence, § 27-2-204, MCA, and two years for damage to property, § 27-2-207, MCA. All parties agree that the eight year statute should apply to those counts alleging breaches of covenants arising out of an oil and gas lease. Therefore, it is clear that Sundheims’ claims under such counts are barred.

The leases executed between the Sundheims and Woods Petroleum were executed on May 11,1967 and May 23,1967. They were subject to a ten-year primary term. Therefore, by their express language, the leases expired in May of 1977, unless production of oil and gas continued after this date. The applicable provision that supports this Conclusion reads:

“It is agreed that this lease shall remain in force for a term of ten years from date, and as long thereafter as oil or gas or either of them, is produced from said land by the lessee, its successors or assigns ...”

It is undisputed that production ceased on the Sundheim No. 1 well in July of 1977. The well was abandoned and cemented, and Woods Petroleum performed no farther activity on the well after this date. The Sundheims themselves stated, in their complaint, that the well was abandoned in July of 1977. Given these admissions, it is clear that the issue presented is a matter of law, and is properly resolved through summary judgment.

Absent a reworking clause Montana law dictates that cessation of production by the lessee after the primary term automatically terminates the lease. Miami Oil Producers Inc. v. Larson (1983), 203 Mont. 225, 661 P.2d 1260. The primary terms in the Sundheim lease terminated in May of 1977. Production on the Sundheim leasehold ceased in July of 1977. According to Miami Oil, the lease automatically terminated on that date. Once the lease terminated, all obligations on Woods Petroleum’s part also ended. The date for the beginning of the statute of limitations was in July of 1977. The Sundheims brought their lawsuit on January 30 of 1986. This date is outside of the eight year statute and all claims against Woods Petroleum are barred.

Through a convoluted interpretation of the lease, the Sundheims attempt to extend the termination date to May of 1978. Through reliance upon this erroneous argument, they attempt to save their lawsuit against Woods from the statute of limitations. We do not find it necessary to fully evaluate this argument. The clear language of the lease speaks for itself.

Next, the Sundheims argue that this Court should toll the statute of limitations on equitable principles. However, they have not come forward with any evidence or sufficient reason to delay its operation. The Sundheims have offered no proof of fraud or concealment on the part of Woods Petroleum. Carlson v. Ray Geophysical Division (1971), 156 Mont. 450, 481 P.2d 327. On the contrary, the Sundheims were well aware of their injury in 1977 when they stopped receiving royalty checks. Mr. Sundheim knew that the reason the royalty checks stopped was that production on the Sundheim No. 1 well ceased. The District Court’s order dismissing Woods Petroleum is affirmed.

III. Rule 11 Sanctions.

The District Court granted Reef Oil’s motion for Rule 11 sanctions and assessed a sum of $13,924.90 against the Sundheims and their attorneys. Apparently, the District Court determined that the Sundheims repeatedly misrepresented the holding of U.V. Industries. During argument and briefing at the lower court level, the Sundheims maintained that U.V. Industries’ notice requirements were inapplicable to this case, because the Sundheims were seeking damages, while the plaintiffs in U.V. Industries were seeking forfeiture. A close reading of U.V. Industries however, reveals that it was a case for damages.

While it is true that the Sundheims erroneously misinterpreted the U.V. Industries decision, we disagree with the District Court’s decision to assess sanctions. We note that later on in the proceedings, the Sundheims changed tactics and argued for a change in the law to not require notice in cases seeking damages. Their argument is amply supported by the authorities. At least two treatises on Oil and Gas Law state that a lessor suing for breach of the covenant to protect need not give notice or demand protection, if he is only seeking damages. See Hemingway, Oil and Gas § 8.11 2d Ed. (1983); Merrill, Covenants Implied in Oil and Gas Leases § 113 (1964). Because the Sundheims argument finds support in the law and because this opinion holds in their favor on the notice issue, we hold sanctions were not warranted.

Conclusion

The District Court’s order awarding summary judgment in favor of Reef Oil Corporation and the estate of Frank Hiestand on the issues of breach of the covenant to develop and the prudent operator standard are affirmed. Summary judgment dismissing Woods Petroleum Company is also affirmed. The District Court’s orders granting summary judgment to Reef Oil and Frank Hiestand on the issue of breach of the covenant to protect and its order granting Rule 11 sanctions is reversed. This case is remanded for proceedings consistent with this opinion.

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