text:
    In re the MARRIAGE OF ALLAIRE W. FITZMORRIS, Petitioner and Respondent, and JAMES P. FITZMORRIS, Respondent and Appellant.
    No. 86-499.
    Submitted Sept. 10, 1987.
    Decided Nov. 5, 1987.
    745 P.2d 353.

      Gregory O. Morgan argued, Bozeman, for respondent and appellant.
    Richard J. Andriolo argued, Bozeman, for petitioner and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This case involves a marriage dissolution. The issue on appeal is the distribution of the marital estate.

The District Court of the Eighteenth Judicial District ordered the division of the parties’ assets in its final decree dated June 24, 1986. The wife, Allaire W. Fitzmorris, received property valued at $5,875,695.60. The majority of her share came from stock acquired before the marriage which was excluded from the marital estate. The husband, James P. Fitzmorris, received property valued at $321,756.60. The majority of his share consisted of assets from the marital estate. We affirm.

James presents three issues for review:

1) Did the lower court err by failing to grant a mistrial?

2) Is the lower court’s division inequitable?

3) To what extent may the lower court rely on the source of marital assets to determine their distribution? We will consider each issue separately.

ISSUE I: James requested a mistrial because Allaire attempted to testify on James’ marital misconduct. The alleged misconduct concerned James’ motivation for supporting the purchase of the parties’ Belgrade ranch. According to Allaire, James encouraged the purchase to convert her stock to jointly held real property. James objected to the testimony, and the trial court sustained the objection. There is nothing in the record to indicate that the trial court considered the testimony in deciding the division. However, James contends that the mention of marital misconduct, like the mention of defendant’s liability insurance in a tort claim, should be grounds for a mistrial.

We faced a similar contention in In re the Marriage of Vance (1983), 204 Mont. 267, 664 P.2d 907. In Vance we stated that the District Court did not abuse its discretion because it specifically refused to consider any allegations of marital misconduct. Vance, 664 P.2d at 912. In this case, the trial court refused to hear the testimony, and struck the testimony from the record. We find that the lower court refused to consider the alleged misconduct, and Vance controls. Thus, the lower court correctly denied James’ mistrial motion.

ISSUE 2: James contends that the division is inequitable on its face. He also contends that the division is inequitable because it (1) omits a debt on his office building, (2) excludes from the marital estate Allaire’s stock while including his stock, and (3) fails to recognize the irrevocable nature of gifts received during the marriage.

We recently clarified the standard for reviewing a district court’s division of marital property in In re the Marriage of Hall (Mont. 1987), [228 Mont. 36,] 740 P.2d 684, 686, 44 St.Rep. 1321, 1323:

“We have concluded that in a property distribution review in marriage dissolution, this Court will reverse a district court only upon a showing that the district court has acted arbitrarily or has committed a clear abuse of discretion, resulting in either instance in substantial injustice.”

In support of the contention that the District Court abused its discretion by ordering a division that is inequitable on its face, James cites In re the Marriage of Brown (1978), 179 Mont. 417, 587 P.2d 361. In Brown, the District Court erred by failing to fairly value appellant’s contribution to the parties’ major asset, the family ranch. During the parties’ fourteen years of marriage in Brown, the ranch had appreciated 350 percent. The appreciation was the result of both parties’ efforts, and the District Court’s decision to give the appealing spouse only a small percent of the ranch’s value was clearly inequitable. Brown, 587 P.2d at 365.

The facts of this case distinguish it from Brown. Here, nearly all the assets included in the marital estate originated from stock Allaire brought to the marriage. The District Court found that these assets lost value as a result of the business ventures of both parties. When “none of the value of the property is a product of contribution from the marital effort, the District Court can justifiably find that the non-acquiring spouse has no interest in the property.” In re the Marriage of Herron (1980), 186 Mont. 396, 404, 608 P.2d 97, 101. Clearly, none of the value of the property allocated to Allaire resulted from the efforts of James, and the District Court’s decision is not inequitable on its face as a result of Brown.

James also contends that the division is inequitable on its face because Montana law favors equal division of assets. This is a misstatement of the law. Equity, not equality, should guide the District Court’s discretion in dividing the marital estate. Snell v. Snell (Mont. 1983), 205 Mont. 359, 668 P.2d 238, 40 St.Rep. 1359, 1361.

James challenges the District Court’s valuation of the office building he received as part of his share of the marital assets. According to James, the omission of the building’s debt constitutes a mistake in the District Court’s findings, and results in an inequity. It appears from the record that only $33,000 worth of stock secured an improvement loan on the building at the time of the District Court’s valuation. We find no evidence that $53,000 in stock secured the debt as James contends. Thus, the District Court may have overvalued the building by failing to deduct the $33,000 debt. But the District Court concluded that James should receive the building and its debt to house his business. Therefore, a mistake on the exact value of the building was “unnecessary to support the District Court’s decision, and is harmless.” In re the Marriage of Anderson (Mont. 1986), [220 Mont. 477,] 717 P.2d 11, 14, 43 St.Rep. 541, 544.

The parties held the major assets of the marriage in joint tenancy. Allaire’s stock financed the purchase of these assets. James contends that the conversion of Allaire’s stock to joint tenancy property constitutes an irrevocable gift to him. On the basis of the irrevocable nature of the gifted property, according to James, the District Court should have divided the property equally.

Even before the passage of the Uniform Marriage and Divorce Act, Montana recognized the rule that title does not control the distribution of marital assets. See Morse v. Morse (1977), 174 Mont. 541, 545, 571 P.2d 1147, 1149. Presently, Section 40-4-202, MCA, embodies the same rule by mandating that the court divide assets equitably “whether the title thereto is in the name of the husband or wife or both.” Thus, the lower court properly refused to base its decision on the fact that the parties held the property as joint tenants.

ISSUE 3: James argues that the District Court relied on source alone to determine that Allaire should receive the bulk of the marital estate. He also contends that the District Court ignored his contribution to the property’s maintenance, and that the lower court treated the marriage like a business relationship in arriving at its distribution scheme.

First, the source of the parties’ assets was not the sole criteria for the lower court’s division. If it were, James would not have received the over $200,000 in Pioneer stock gifted to him by Allaire and her grandmother.

Second, Section 40-4-202, MCA, requires the court to consider the contributions of the parties in dividing the property. The lower court in this case found that Allaire contributed far more to the parties’ accumulation of assets than James. Under these circumstances, the lower court, did not abuse its discretion by awarding most of the assets to Allaire. Herron, 608 P.2d at 101.

Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE HUNT

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMES BINGMAN, Defendant and Appellant.
    No. 86-584.
    Submitted on Briefs Aug. 6, 1987.
    Decided Nov. 5, 1987.
    745 P.2d 342.

      Larry Jent, Bozeman, for defendant and appellant.
    Mike Greely, Atty. Gen., Clay R. Smith, Asst. Atty. Gen. Helena, A. Michael Salvagni, Co. Atty., Marty Lambert, Deputy Co. Atty., Bozeman, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from the District Court, Eighteenth Judicial District, Gallatin County. Appellant was convicted in the District Court of one count of felony assault, Section 45-5-202(2), MCA, and one count of witness tampering, Section 45-7-206, MCA. We affirm.

Defendant Bingman raises four issues on appeal:

1. Did the trial court err in granting the State’s motion in limine to exclude defendant’s expert witness’ testimony that because of intoxication, defendant could not form the requisite intent that is an element of the crime of witness tampering?

2. Did the trial court err in granting the State’s motion to consolidate the charges of witness tampering and assault in the same trial?

3. Did the trial court fail to properly instruct the jury on the law of self-defense as it concerns the defendant’s duty to retreat?

4. Did the trial court err in designating the defendant a dangerous offender?

On March 11, 1985, defendant Bingman was tending bar at Mickee’s Bar in Belgrade. Tony Wagner arrived at the bar at approximately 11:00 p.m. and began drinking whiskey. At one point the defendant asked Wagner to remove from the premises a gun he had brought with him. He did so immediately and returned to the bar. There is some indication that Wagner became belligerent and difficult sometime later.

The events following are somewhat unclear. The defendant testified that he asked Wagner to go back to the office with him because he had begun playing with a knife and threatening the customers. Wagner denied that he threatened anyone. He stated that it was the defendant who had been talking about beating up another man who had a reputation as a “bad man”. Wagner testified that he told defendant he was a “bad man” and he’d have to fight Wagner, too, whereupon the defendant took him back to the office so they could settle it like gentlemen. Defendant Bingman and Wagner each claim the other threw the first punch starting the fight that gave Wagner a broken nose; facial contusions and lacerations; various bruises; and a split open head. Bingman suffered only a slight reddish swelling on his face. Wagner does not remember what occurred but there is evidence that Bingman struck him with a pool cue and also punched him four or five times in the face with fists adorned with several jagged rings.

The police were called and Wagner was arrested for detoxification so that he could be taken to a hospital for treatment. The defendant was arrested for assault.

The charge of witness tampering was based on events that occurred April 8, 1985. The defendant, out on bond, encountered Wagner in The Friendly Tavern in Belgrade. Testimony indicates Bingman offered Wagner a party, $1,000, a motorcycle and a trip out of town if he would promise to forego testifying to the assault. Wagner refused. The defendant was charged with witness tampering on a separate information.

The State made a motion to consolidate the two causes pursuant to Section 46-11-404(1), MCA. Judge Gary, who had been presiding over the assault charge, granted the motion to consolidate the charges in one trial.

Issue I.

Appellant first takes issue with the trial court’s decision to exclude the testimony of appellant’s expert witness, Dr. Kurtz, to show that defendant was under the influence of the drug Stadol at the time he committed the witness tampering. Appellant argues that this evidence would go directly to the defense of intoxication which prevented him from forming the requisite mental state. See Section 45-2-203, MCA, (1985). It is unclear from the record what the substance of Dr. Kurtz’s testimony would have been. We find compelling the State’s argument that no offer of proof was made pursuant to Rule 103 of the Montana Rules of Evidence. Although the record does indicate the general nature of the intended direct examination, we can only guess what Dr. Kurtz’s responses would have been. Generally, there can be no reversible error when the court cannot ascertain the evidence excluded by the granting of a motion in limine. Runkle v. Burlington Northern (1980), 188 Mont. 286, 292, 613 P.2d 982, 987. See also State v. Hall (1979), 183 Mont. 511, 515, 600 P.2d 1180, 1182-83. There may be an exception to this rule, however, when the offer of evidence is refused on substantive grounds rather than evidentiary grounds. State v. Bay (1986), 150 Ariz. 112, 115, 722 P.2d 280, 283; Jones v. Pak-Mor Mfg. Co. (1985), 145 Ariz. 121, 129, 700 P.2d 819, 827; State v. Kaiser (1973), 109 Ariz. 244, 246, 508 P.2d 74, 76.

In Bay, the Arizona Supreme Court held that because the question of whether the defense of insanity may be established solely by lay testimony was a question of substantive law, appellate review of an order denying expert testimony was permitted. Bay, 150 Ariz. at 115-16, 722 P.2d at 283-84. This is directly analogous to the instant case. The trial court determined that an expert witnesses could only testify to his or her personal knowledge of a particular incident of intoxication. Since Dr. Kurtz had not been present during the witness tampering incident he could not testify. The question becomes whether intoxication can be established solely by lay testimony. Accordingly, this falls within the exception and we will review this issue.

This Court has pointed out that intoxication is not a defense, but merely a fact the jury may consider in determining the mental state of the defendant. State v. Ostwald (1979), 180 Mont. 530, 536, 591 P.2d 646, 650. But for the purposes of our discussion and analysis, we will accept defendant’s claim that his defense is not that of a mental disease or defect but purely that of gross intoxication at the time of committing the crime so as to negate the element of specific intent. Section 45-2-203, MCA, (1985) provides:

“A person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition is involuntarily produced and deprives him of his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. An intoxicated or drugged condition may be taken into consideration in determining the existence of a mental state which is an element of the offense.”

It is the second sentence that is pertinent to this discussion. (As an aside, we note that this statute has been amended to preclude voluntary intoxication as a defense. Section 45-2-203, MCA, (as amended 1987).) The sole issue, then, is whether the defense of intoxication may be established solely by lay testimony. We hold that it may.

Expert testimony is not generally probative in a case where the intoxication does not rise to the defense of mental disease or defect. Unless the expert had personal knowledge of the incident he could not testify to defendant’s intoxication at the time of the commission of the charged offense. State v. Ostwald (1979), 180 Mont. 530, 536, 591 P.2d 646, 649. See State v. Gray (Mont. 1983), [202 Mont. 445,] 659 P.2d 255, 257, 40 St.Rep. 199, 202 (graphoanalyst’s testimony irrelevant because she was unable to testify to mental state of defendant at time of commission of crime). Further, expert testimony is not required to establish the intoxication defense. Ostwald, 591 P.2d at 650.

The defendant argues that if a person is so intoxicated that he cannot control his spoken words it has a direct bearing on whether he can form the requisite mental state. While this may contain some truth, an expert may not testify whether the defendant has the ability to conform his conduct to the requirements of the law. State v. Peavler (1981), 195 Mont. 379, 382, 636 P.2d 270, 271. See also Section 46-14-213(2), MCA, (1985). Peavler involved the defense of alcoholism that rose to mental defect or disease; the instant case involves a defense based on a particular incident of intoxication. But for the purposes of the content of expert testimony we make no distinction. It would be inconsistent to disallow such testimony regarding conduct in cases where intoxication rose to mental defect or disease but allow it where a single incident of intoxication was alleged purely to negate specific intent.

Several witnesses, including the victim, testified to the issue of Bingman’s intoxication at the time of his conversation in the Friendly Tavern. His girlfriend testified to witnessing him pass out on and off in the car on the way to the tavern and to witnessing him taking several shots of Stadol throughout the day and evening. The effects of the Stadol were described by both the defendant and his girlfriend. Even the victim said, “He [the defendant] looked to be drunk.”

This testimony amply supports defendant’s defense. He was not prevented from presenting adequate evidence concerning his intoxication. The trial judge did not abuse his discretion in granting the State’s motion in limine to exclude Dr. Kurtz’s testimony.

Issue II.

Appellant’s next point of contention presents an issue of first impression in this jurisdiction. This case originated as two charges made by two separate informations. The two charges, felony assault and witness tampering, were consolidated for trial on the State’s motion. Appellant argues that because the two causes were filed in different departments of the Eighteenth Judicial District, they were improperly joined and, as such, highly prejudicial. Section 46-11-404, MCA, (1985) reads in pertinent part:

“(1) An indictment, information, or complaint may charge two or more different offenses connected together in their commission, different statements of the same offense, or two or more different offenses of the same class under separate counts. If two or more indictments, informations, or complaints are filed in such cases in the same court, the court may order them to be consolidated.
“(4) If it appears that a defendant or the state is prejudiced by a joinder of related prosecutions or defendants in a single charge or by joinder of separate charges or defendants for trial, the court may order separate trials, grant a severance of defendants, or provide any other relief as justice may require.”

Appellant’s argument that the charges were not brought in the same court because they were brought in different departments of the Eighteenth Judicial District lacks merit. The division of multijudge districts does not create multiple courts. The statutory language is clear.

“(2) The judges elected or appointed to hold office in each judicial district having more than one judge must divide the court into departments, prescribe the order of business, and make rules for the government of such court. Each department shall be numbered, and each judge shall be assigned to one of such numbered departments.” (Emphasis supplied.)

Section 3-5-403(2), MCA, (1985).

The Eighteenth Judicial District is only one court in which both charges were brought.

Appellant also argues that the two charges were improperly joined because they are not sufficiently “connected together in their commission.” Section 46-11-404(1), MCA, (1985). This is an issue of first impression not yet addressed by this Court. Since Montana’s joinder statute is similar to Rules 8 and 14 of the Federal Rules of Criminal Procedure, we will take some guidance from federal law and other jurisdictions with similar statutes. First, we must determine if joinder was proper under Section 46-11-404(1). The Fifth Circuit was held that counts of tax fraud and witness tampering are “two or more transactions connected together.” United States v. Scott (5th Cir. 1981), 659 F.2d 585, 589. In that case, the court reasoned that the defendant’s attempted intimidation of a witness was for the sole purpose of escaping criminal liability on the tax counts. There was, then, a direct relationship between the two counts. 659 F.2d at 589. We also find two cases from Kansas very persuasive.

In State v. Moore (Kan. 1979), 602 P.2d 1359, the Kansas Supreme Court held that counts of aggravated robbery and kidnapping were “connected together” with the charge of corruptively influencing a witness and therefore were properly joined. The Kansas statute reads as follows:

“Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, . . . are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”

Kan. Stat. Ann. Section 22-3202 (1981).

The Kansas court held that there could be joinder of two informations against a single defendant if the crime could have been joined in a single information. Moore, 602 P.2d at 1361-62. The Kansas court reasoned that the charges were connected together because the robbery and kidnapping charges “precipitated” the corruptly-influencing-a-witness charge. This reasoning was also used to hold that joinder of aggravated assault and a subsequent attempted murder was proper. State v. Pondexter (1983), 234 Kan. 208, 671 P.2d 539, 547. The attempted murder was an effort to prevent the victim of an earlier aggravated assault from testifying. Reasoned the court, “Clearly, the crimes charged in the earlier action precipitated the [attempted murder.]” Pondexter, 671 P.2d at 547.

Several federal courts have held joinder was proper in cases where the second charge is precipitated by a previous charge. See United States v. Ritch (1st Cir. 1978), 583 F.2d 1179, 1181 (charge of bail-jumping or escape is sufficiently connected with previous crime if motive was to avoid prosecution and stems directly from the initial charge); Williams v. United States (9th Cir. 1959), 265 F.2d 214, 216 (obstruction of justice charge was properly joined with charge of statutory rape when object was to affect victim’s testimony concerning rape charge).

This analysis is easily applied in the instant case. Bingman clearly was attempting to avoid criminal prosecution when he offered Wagner a party, a trip out of town, $1,000 and a motorcycle. The assault charge provides a motive for and precipitates the tampering charge. We hold that the two charges were properly joined.

Defendant argues that even if there was proper joinder under Section 46-11-404(1), he was prejudiced by such joinder. The standard for analyzing prejudicial joinder is set out in State v. Campbell (1980), 189 Mont. 107, 615 P.2d 190.

“Determining whether there has been prejudicial joinder involves weighing the prejudice incurred by the defendant because of a joint trial against the judicial economy resulting from a joint trial. This balancing process is left to the sound discretion of the trial judge. Absent a showing of abuse of that discretion, an appellate court should not substitute its judgment for that of the trial court.”

Campbell, 615 P.2d at 198.

Interests of judicial economy greatly encourage joint trials. Campbell, 615 P.2d at 198. Further, the burden is on the defendant to show prejudice. State v. Orsborn (1976), 170 Mont. 480, 489, 555 P.2d 509, 515.

This Court has recognized three distinct types of prejudice that may result from joinder of charges against a single defendant.

“The first kind of prejudice results when the jury considers a person facing multiple charges to be a bad man and tends to accumulate evidence against him until it finds him guilty of something. The second type of prejudice manifests itself when proof of guilt on the first count in an information is used to convict the defendant of a second count even though the proof would be inadmissible at a separate trial on the second count. The third kind of prejudice occurs when the defendant wishes to testify on his own behalf on one charge but not on another.”

Campbell, 615 P.2d at 198.

Appellant argues that the joining of the assault and witness tampering charges caused the jury to infer a criminal disposition on the part of the defendant or that he was a “bad man.” This is rarely sufficient to warrant severance. Campbell, 615 P.2d at 198; Orsborn, 555 P.2d at 515. Appellant argues that this kind of prejudice was also compounded by the trial judge’s apparent confusion over the various defenses presented by the defendant and that the jury would likewise be confused. It has been held that prejudicial error does not occur simply because the defendant had separate and distinct defenses to two different counts. Orsborn, 555 P.2d at 514. Similarly, we find no prejudice of this type. Appellant also makes the argument that the jury obviously used evidence of the witness tampering charge to convict the defendant of assault. The record shows no misuse of the evidence.

Evidence of the assault charge would be admissible as showing motive in a trial on the witness tampering charge. Rule 404(b), M.R.Evid. Thus, the second type of prejudice is not present here. We do not find the defendant’s arguments persuasive.

The third type of prejudice set forth in Campbell is not at issue in this case. We hold that joinder was proper.

Issue III.

Appellant next argues that Judge Gary incorrectly instructed the jury on the law of self-defense. He presents several objections to court’s instructions Nos. 20, 21 and 22. We cannot pass on the merits of his objections, however, because the defendant failed to object to them at trial and thus did not reserve the issue for appeal. State v. Watson (Mont. 1984), [211 Mont. 401,] 686 P.2d 879, 886, 41 St.Rep. 1452, 1460.

It appears that appellant also objects to the refusal of his proposed instruction No. 10.

“INSTRUCTION NO. 10

“It is the law of this State that when a person is in his place of business or work and is not the aggressor, and is assaulted by another, he may, without any obligation on his part to retreat, repelí [sic] force by force, whether to protect himself or others who may be present.”

It is not error for a trial court to refuse to give a requested instruction if other instructions given adequately cover the rejected instruction’s legal theory. State v. Lagge (1964), 143 Mont. 289, 295, 388 P.2d 792, 795. Nor must a trial court give repetitious instructions or instruct “on every nuance” of a defense theory. State v. Graves (Mont. 1981), 622 P.2d 203, 210, 38 St.Rep. 9, 16.

The thrust of the appellant’s argument is that the court’s other instructions required that the defendant retreat before use of force is justified, and that they assumed the defendant was the aggressor. These arguments are meritless. It is the law in Montana that the defense of justifiable force is not available to an aggressor unless he has withdrawn from the conflict and has already indicated to his assailant his desire to withdraw. Section 45-3-105, MCA, (1985). Retreat is not required if the defendant is not the aggressor. People v. Taylor (1972), 3 Ill.App.3d 734, 279 N.E.2d 143, 145; People v. Martinez (1972), 4 Ill.App.3d 1072, 283 N.E.2d 268, 271. Section 45-3-102, MCA, (1985); Section 45-3-105, MCA, (1985).

The court’s instructions Nos. 20 and 21 are direct quotes from Sections 45-3-102 and 45-3-105, MCA. We fail to see how they misstated the law or misled the jury in any way. Instruction No. 21 further delineates the unavailability of self-defense to an aggressor. These instructions were properly given in light of conflicting testimony regarding who threw the first punch. State v. Bashor (1980), 188 Mont. 397, 426, 614 P.2d 470, 486. Nowhere is it assumed that the defendant was the aggressor.

Defendant’s instruction No. 10 adds nothing to the other instructions given by the court delineating the theory of self-defense. The given instructions do not specifically preclude persons assaulted in their place of business from benefiting from the defense of justifiable force. Nor do they require retreat of anyone who is not the aggressor. If the given instructions as a whole properly tender the case to the jury, there is no reversible error. State v. Reiner (1978), 179 Mont. 239, 244, 587 P.2d 950, 953-54. The given instructions properly state the law and the giving of defendant’s proposed instruction would be repetitious.

Issue IV.

Appellant lastly contends that the District Court erred in designating Bingman a dangerous offender.

Under Section 46-18-404, MCA, the sentencing court must designate a defendant as nondangerous if:

“(a) during the 5 years preceding the commission of the offense for which the offender is being sentenced, the offender was neither convicted of nor incarcerated for an offense committed in this state or any other jurisdiction for which a sentence to a term of imprisonment in excess of 1 year could have been imposed; and
“(b) the court has determined, based on any presentence report and the evidence presented at the trial and the sentencing hearing, that the offender does not represent a substantial danger to other persons or society.”

If an offender is designated as dangerous, the sentencing court must articulate its reasons. State v. Camitsch (Mont. 1981), [__Mont__,] 626 P.2d 1250, 1258, 38 St.Rep. 563, 573; Matter of McFadden (1980), 185 Mont. 220, 222, 605 P.2d 599, 600.

On September 22, 1986, appellant was found to be a dangerous offender. The trial court gave extensive reasons for its designation.

“I’d like to state that since my time on the bench of seven years, that this is the most vicious beating that I’ve ever encountered, and obviously, you have no respect for the law whatsoever . . . . You go out and attempt to tamper witness and the jury convicted you, and I believe the jury was right. I believe the jury was right on the conviction of the deadly weapon.

“Luckily you didn’t kill that man. He was intoxicated, because you testified that he was helpless. You beat him in the office and you beat him in the kitchen, and it was the most vicious thing I’ve seen since I’ve been on the bench, and you obviously have shown by your conduct that you don’t care about the law. You don’t care about other citizens. You only care about James Bingman, your booze and your drugs and we’ll give you an opportunity to dry out in the penitentiary.”

Appellant contends that the trial court improperly based its determination on an constitutionally infirm conviction obtained in 1973 without benefit of counsel. It is true that the sentencing court cannot rely upon unconstitutional convictions. State v. Herrera (1982), 197 Mont. 462, 468, 643 P.2d 588, 592. It is also true that the defendant bears the burden of challenging matters contained in the presentence report. State v. Smith (Mont. 1985), [217 Mont. 461,] 705 P.2d 1087, 1092, 42 St.Rep. 463, 468. The only proof the defendant offered was his own self-serving testimony that he was not represented by counsel.

Appellant also contends the presentence report contains hearsay and inaccuracies. Hearsay can be properly considered in sentencing. State v. D.B.S. (Mont. 1985), [216 Mont. 234,] 700 P.2d 630, 639, 42 St.Rep. 770, 780-81. All inaccuracies were brought to the court’s attention during the presentencing hearing. The trial court did not appear to rely on any particular offense or incident but instead emphasized the brutality of the assault, the subsequent witness tampering and a general ability to conform to the law. Even without the questionable presentence report incidents, there is substantial support for the dangerous offender designation. The trial court did not abuse its discretion.

The judgment of the District Court is affirmed.

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


author: MR. JUSTICE HARRISON MR. JUSTICE HUNT,

text:
    JAMES O. WHITTINGTON, Claimant and Appellant, v. RAMSEY CONSTRUCTION AND FABRICATION, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 87-117.
    Submitted on Briefs Aug. 27, 1987.
    Decided Nov. 5, 1987.
    744 P.2d 1251.
    Lynaugh, Fitzgerald, Hingle & Eiselein, Michael G. Eiselein, Billings, for claimant and appellant.
    Crowley Law Firm, William J. Mattix, Billings, for defendant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

The family of James O. Whittington continues his appeal of the Workers’ Compensation Court’s decision not to award compensation benefits under Section 39-71-119, MCA, for the injury Mr. Whittington said he suffered when he inhaled welding fumes and smoke while working for Ramsey Construction. Mr. Whittington was awarded Occupational Disease benefits. We affirm.

It should be noted that Mr. Whittington died of cardiac standstill on January 23, 1987 before this case was decided by the Workers’ Compensation Court. His family continues in the claim for compensation benefits.

The claimant was a 52-year-old man who had worked as a welder for some 28 years when he undertook a four-day welding assignment at the Exxon Refinery in Billings, Montana, in September 1982 for Ramsey, a Plan 3 employer. He was not a permanent employee of Ramsey; he got the job as a welder on call through his local union. The claimant had a history of pulmonary difficulties. Three weeks before he undertook the welding job for Ramsey, Whittington saw Dr. Terrance J. Fagan, a Billings pulmonary specialist. Dr. Fagan noted that Whittington had been a two-pack-a-day cigarette smoker and on at least three occasions in the past twenty years had suffered breathing difficulties while either welding or cutting metal. These incidents included zinc oxide poisoning induced by his cutting of galvanized metal in Wyoming in 1964. The second incident occurred in Utah in 1972 after he had spent thirty to forty minutes welding inside an eighteen-inch pipe with no ventilation. In 1976, Whittington suffered smoke inhalation while he was air arcing and welding on stainless steel in Illinois. He received a workers’ compensation award of $22,500, less $4,500 for attorneys’ fees and $18 for medical reports, for reduced lung capacity from the Illinois Industrial Commission for this last incident.

Dr. Fagan conducted an FEV 1, a test measuring the volume of air exhaled, on September 3, 1982. Whittington registered .7 while a healthy person of his age would have registered about 3.4. Whittington’s lung capacity was about 20% of normal. Dr. Fagan diagnosed Whittington as having a “severe” case of airways obstructive disease. This meant that Whittington had a decreased lung capacity because his airways were scarred or abnormal; this condition could result from asthma, bronchitis, emphysema, or any combination of the three. Dr. Fagan said this condition made it inadvisable for Whittington to work as a welder, and referred him to Dr. Bruce Anderson, an allergist. Approximately one week before the welding job for Ramsey, Whittington saw Dr. Anderson. He told Dr. Anderson that he had begun wheezing while working as a welder in Illinois in 1976. He further related that while all welding made him wheeze, the problem was particularly acute when he worked with stainless steel because its fumes contained a higher percentage of chromium and nickel. Dr. Anderson determined that Whittington was not allergic to the fumes; but he felt Whittington had developed asthma.

Whittington claimed he learned that he would be working with stainless steel only after he entered the job site on September 20, 1982. He contended that he was welding inside a furnace that did not afford adequate ventilation for the fumes and smoke. He testified that because of this, he suffered from shortness of breath and coughing. Both Whittington and his wife, Laura, testified that when Whittington drove home following that shift, he remained in his vehicle for fifteen minutes or so after he had parked it because he was experiencing “an awful hard time” breathing, but that he refused immediate medical attention. Whittington claimed he did not get immediate medical care because he already had a doctor’s appointment scheduled for later that day. He claimed that at the appointment, Dr. Anderson prescribed a Proventil inhaler, which would allow him to breath easier while working. At his deposition, Dr. Anderson stated that he saw Whittington only once, on September 14, and that he has no record of seeing Whittington after Whittington began the job at the Exxon Refinery or of prescribing an inhaler.

Whittington worked four ten-hour shifts beginning at 6:00 p.m. and ending at 4:00 a.m. the following morning. These shifts started the evenings of September 18, 20, 21, and 22, 1982, according to Ramsey’s payroll records. Whittington testified that his welding produced about “as much [smoke] as a barbecue would put out.” However, he claimed that he was forced to lean directly over his welding rod because the nature of the scaffolding and the ventilation was poor. He testified that the foreman on the job was Gary Wiech, whom he said he knew, and that it was Wiech he confronted when he discovered that he was welding on stainless steel. Further, he said Wiech instructed him to redo the welds and refused to reassign him away from the stainless steel. Whittington also denied that he had ever been a heavy tobacco smoker. He said he had smoked one year as a teenager and then off and on since 1969, figuring that he smoked perhaps thirty cigarettes per week. He acknowledged that he was smoking in 1982 and that even at the time of the hearing he still would smoke occasionally if anybody offered him a cigarette.

Ramsey employees also testified by deposition. Terry Mammenga, Ramsey’s cost accountant and payroll supervisor, stated that Whittington had worked for Ramsey on two other occasions that summer at another refinery. He also testified that Gary Wiech, whom Whittington claimed was foreman at the Exxon job, was never assigned to Exxon and indeed had supervised Whittington on the two occasions he worked at the other refinery. Mammenga stated that no Workers’ Compensation claim had been filed through his office. Hank Cantrill testified that he had been Ramsey’s night shift supervisor and that he remembered Whittington because he had caught Whittington smoking while working inside the furnace, which he said was a serious infraction of work rules at a refinery. He also said that work crews had cut holes in the walls of the furnace to provide ventilation and that there was no need for a welder to bend directly over his welding rod.

Whittington sought Workers’’ Compensation benefits on the theory that his exposure to nickel and chromium fumes from welding stainless steel constituted an injury that aggravated his pulmonary obstructive disease to the point that he could not take part in anything more strenuous than walking a limited distance in his yard, playing cards, reading, or watching television. He was forced to resort to oxygen often since overexertion easily winded him.

Whittington filed his claim for benefits on July 29, 1983. The Workers’ Compensation Division determined the claim to be in the nature of one for Occupational Disease benefits. An Occupational Disease Medical Panel composed of Dr. Fagan, Dr. John W. Strizich of Helena, and Dr. Thomas Schimke, then of Missoula, reported its findings on September 21, 1984:

“It is agreed that Mr. Whittington is totally disabled and suffering from severe obstructive lung disease. [We] feel that the basic fundamental problem producing his obstructive lung disease is a long history of substantial cigarette smoking.
“However, it is felt by all of us that his welding of stainless steel probably contributed significantly to the progression of his underlying lung disease.
“It is agreed by all of us that his occupation contributed 40 percent to his current disability.”

On November 14, 1984, the Division determined Whittington was entitled to 40 percent total disability benefits and awarded him $105.20 per week (40 percent of the $263 per week applicable in September 1982 when Whittington’s job ended). Whittington’s benefits were reduced to $77.90 per week when Social Security offset was figured. On May 1, 1985, Whittington filed his petition for Workers’ Compensation benefits.

The Workers’ Compensation hearings officer, Robert J. Campbell, considered medical testimony introduced by deposition along with the live testimony of Whittington and his wife. Dr. Fagan, the Billings internist who originally saw Whittington, testified that Whittington’s exposure to the welding fumes may have caused him a temporary irritation, but he testified to a reasonable degree of medical certainty that Whittington would have recovered from any effects of those fumes within the month. He stated that welding fumes, even those from stainless steel, are not associated with permanent pulmonary disease and said Whittington’s condition was attributable to his smoking:

“Q. [By Mr. Mattix] What was the effect of smoking? What would be the effect of smoking in a gentleman with Mr. Whittington’s condition?
“A. Well, I considered this disease to be largely smoking induced. So, to be consistent, one would have to say that continued smoking would lead to continued worsening, and the literature does support the fact that patients with airways obstructive disease who continue to smoke will decline at a faster rate than if they would quit.
“Q. What was your estimate of [welding’s] role in Mr. Whittington’s case [in 1982]?
“A. Well, at that time I thought it probably played some role, but certainly not the major role. And the only important feature really was that he not do any more of it because it was such an obvious irritant.
“Q. What is your opinion now? How has it changed?
“A. I think probably that I would say that the vast majority of his problem is smoking related, and if there was an effect from welding per se, it is an irritant and probably not as the cause of permanent change, and that I have not seen anything to make me change that position at this point.
“Q. When you say that opinion, Doctor, are you stating it with a reasonable degree of medical certainty?
“A. Yes, I think so.”

The allergist, Dr. Anderson, agreed somewhat when he testified that Whittington’s sensitivity to the stainless steel fumes caused his winded condition, but could not testify to a medical certainty that such fumes would cause reversible pulmonary problems. He also could not state as medical certainty that the September 1982 exposure to the fumes aggravated the preexisting condition into one of constant discomfort.

Dr. Schimke, a specialist in pulmonary disease, diagnosed irreversible chronic airway disease, which he said was most likely caused by a history of cigarette smoking.

At Dr. Schimke’s deposition, this exchange occurred:

“Q. [By Mr. Mattix] Was there anything other than the welding and the work experience that Mr. Whittington related to you? Is there anything else in his history that you found significant with regard to the particular medical problem that you were examining him with regard to?
“A. He was a two pack per day smoker for many years during his adult life, blit he reported that he had stopped smoking during the past few years when his bronchitis was so bothersome.
“Q. Why is that significant?
“A. It is common to see patients who are two pack per day smokers to have some symptoms of such as Mr. Whittington complained of by the age of 53, and therefore, that historical item leads me to suspect that it was at least, in part, responsible for his complaints.
“Q. All right, do you have an opinion, then, as to the cause or causes of Mr. Whittington’s chronic obstructive pulmonary disease, again, within a reasonable degree of medical certainty?
“A. Yes.
“Q. And what is that opinion?
“A. The most likely cause of his advanced chronic obstructive pulmonary disease is cigarette smoking. A contributing cause may be the industrial smoke exposure that he sustained during a 20-year period of welding.
“Q. You say may be, that may be a contributing cause. Are you able to state that it is a contributing cause to a reasonable degree of medical certainty?
“A. No.
“Q. And why is that, Doctor?
“A. In evaluating this case for the Workers’ Compensation Division, I have reviewed the medical literature in an attempt to find substantiation for lung disease of this severity based on welding fume exposure, and in my search, I found articles which suggested a possible minor aggravation of the bronchitis or lung disease, but I found nothing that would indicate to me that welding fume exposure could be the sole or a significant cause of his present condition.”

Dr. Schimke testified the condition was a progressive one and said the exposure to these fumes was only a minor irritant — and only one in a series of such irritants.

The hearings examiner denied Workers’ Compensation benefits. He stated that no such benefits were appropriate since Whittington had not sustained an injury as defined by Section 39-71-119(1), MCA, which, before its amendment on July 1, 1987, required the claimant to prove he had suffered a “tangible happening of a traumatic nature from an unexpected cause . . .” He concluded:

“None of the three medical specialists in this case would testify to a reasonable degree of medical certainty that the incident of inhaling fumes from stainless steel welding on September 21,1982, accentuated the claimant’s preexisting COPD [chronic obstructive pulmonary disease] or had anything more than a temporary effect on his lungs. Avoiding all types of irritants to the lungs was advised, but no medical evidence has been submitted that the incident triggered a progressively [sic] worsening of his condition. Likewise, no medical evidence was introduced that without this incident he may have been able to continue to work under those conditions or that it resulted in any permanent damage. The evidence presented does not support the claimant’s contention that an ‘injury’ resulted in disability under the Workers’ Compensation Act.”

The Workers’ Compensation Court accepted the hearings examiner’s findings of fact and conclusions of law on March 6, 1987.

On review of the Workers’ Compensation Court decision, this Court must determine if there is substantial credible evidence to support the decision. Courser v. Darby School District No. 1 (Mont. 1984), [214 Mont. 13,] 692 P.2d 417, 419, 41 St.Rep. 2283, 2285. In this review we have carefully examined the record and have read the testimony by Whittington and his wife as well as the depositions of the various physicians and Ramsey employees.

The Whittington estate argues that one who has received award of Occupational Disease benefits is not automatically precluded from receiving Workers’ Compensation benefits. Ridenour v. Equity Supply Co. (1983), 204 Mont. 473, 665 P.2d 783. However, in Ridenour, this Court said an employee has no right to elect his benefits unless he fits the definition of both occupational disease and injury. Ridenour, 665 P.2d at 786. Section 39-72-408, MCA, says that an occupational disease arises from employment if:

“(1) there is a direct causal connection between the conditions under which the work is performed and the occupational disease;
“(2) the disease can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment;
“(3) the disease can be fairly traced to the employment as the proximate cause;

Sections 39-71-119, MCA, defines an injury as:

“(1) a tangible happening of a traumatic nature from an unexpected cause or unusual strain resulting in either external or internal physical harm and such physical condition as a result therefrom and excluding disease not traceable to injury, except as provided in subsection (2) of this section;
“(2) cardiovascular or pulmonary or respiratory diseases contracted by a paid firefighter employed by a municipality . . . which diseases are caused by overexertion in times of stress or danger in the course of his employment. . . Nothing herein shall be construed to exclude any other working person who suffers a cardiovascular, pulmonary, or respiratory disease while in the course and scope of his employment.
“(3) death resulting from injury.”

In Ridenour, the claimant was injured by a massive inhalation of grain dust while he was making repairs at the top of a grain bin. He had not known an unloading operation was in process beneath him when he left one area to go to another to receive proper tools. He breathed in such a quantity of this grain dust that he was rushed immediately to a doctor. Like Whittington, the claimant in Ridenour suffered from chronic obstructive pulmonary disease, had a history of cigarette smoking, and eventually was forced to retire. Unlike Whittington, he was able to convince the Workers’ Compensation Court that a tangible happening of an unexpected cause occurred on a specific date, December 18, 1978, and caused him harm. Ridenour met this Court’s distinction between occupational disease and industrial injury. “The two crucial points of distinction are time definiteness and unexpectedness.” Wise v. Perkins (1983), 202 Mont. 157, 166, 656 P.2d 816, 820. If the claimant fails to show time definiteness and unexpectedness, there is no injury under Section 39-71-119(1), MCA. Phillips v. Spectrum Enterprises (Mont. 1986), [224 Mont. 184,] 730 P.2d 1131, 1134, 43 St.Rep. 2288, 2291.

Our distinction between occupational disease and injury is consistent with that developed by Professor Arthur Larson:

“What set occupational disease apart from accidental injuries was both the fact that they could not honestly be said to be unexpected, since they were recognized as inherent hazard of continued exposure to conditions of the particular employment, and the fact that they were gradual rather than sudden in onset. Thus, what would ordinarily be an occupational disease might be converted to an accident by an unusual and sudden dosage of the same kind of dust or fumes that, absorbed gradually over a long period, would produce typical industrial disease.”

Larson, Workmen’s Compensation Law, Vol. IB Section 41.31 (1987).

The fact that Whittington, like the claimant in Ridenour, had chronic obstructive pulmonary disease, smoked, and breathed fumes and dust at work does not mean he suffered an injury that would qualify him for Workers’ Compensation benefits. He failed to identify an unexpected tangible happening that occurred on one specific date. He claimed that the amount of smoke and fumes from the welding job was unusual and unexpected. However, the Workers’ Compensation Court made no such finding of fact. We uphold that court’s findings when they are based on sufficient credible evidence. Coles v. 7-11 Stores (Mont. 1985), [217 Mont. 343,] 704 P.2d 1048, 1050, 42 St.Rep. 1238, 1240. Thus, we will not determine if the evidence is sufficient to support a contrary finding. Davis v. Jones (Mont. 1985), [216 Mont. 300,] 701 P.2d 351, 353, 42 St.Rep. 840, 843.

Whittington argued that he did not expect to work on stainless steel. Yet one physician already had told him he should do no more welding of any kind because of his pulmonary condition. And Whittington had told another physician that all welding made him cough and wheeze, but that stainless steel only made it more acute. He also cannot specify a time definite. In his petition he said the accident occurred on September 20 and said this was his first work shift. Yet Ramsey employment records indicate September 18 was his first shift.

In fact, Whittington’s own testimony indicated that he had been welding for more than 28 years, had smoked a good deal of his life, and had experienced similar reactions on at least three occasions in his work history. Because Whittington could have expected to have an adverse reaction to welding and because the reaction appears to have been developing over years of welding, Whittington could neither establish this illness as unexpected nor could he assign a definite date to its onset. This malady was an occupational disease rather than an injury. It is difficult to establish a bright-line barrier between long-term disease and instant injury. A carpal tunnel syndrome that arose over the course of two months was held to constitute an injury since it arose from a chain of physical incidents, i.e. stacking of lumber. Hoehne v. Granite Lumber Co. (1980), 189 Mont. 221, 225, 615 P.2d 863, 865. But when a claimant had worked inside a copper refinery for 22 years and had been exposed to sulfuric acid, arsenic, asbestos and other compounds in his work environment, this Court held that his chronic obstructive lung disease and related physical and mental problems were diseases, not injuries. McMahon v. Anaconda Co. (Mont. 1984), [208 Mont. 482,] 678 P.2d 661, 663, 41 St.Rep. 480, 482.

In Greger v. United Presstech, Inc. (1979), 180 Mont. 348, 590 P.2d 1121, we held that a concrete worker who suffers allergic reactions to chromium and nickel compounds in concrete has suffered an occupational disease but not an injury.

“We find that the prevailing and most convincing view is that such allergies are to be considered occupational disease. This is especially important [because] the purpose of the occupational disease act is to compensate workers who contract a disease or have inert diseases . . . when there is no ‘injury’ as defined in section 92-418 RCM 1947, now Section 39-71-119, MCA.” (Emphasis added.) Greger, 590 P.2d at 1124.

In Phillips, we held that an employee who claimed respiratory illness because he splashed solvent in his face would be denied Workers’ Compensation benefits because he had been exposed to various chemicals as a welder and his bronchitis was due to continued exposure to chemicals rather than the specific instance the claimant cited. Since the claimant had had breathing difficulty before his alleged injury and had been hospitalized at times for that bronchial condition, “it is not unexpected he should suffer recurring attacks of bronchitis,” and the claimant’s exposure did not constitute an injury. Phillips, 730 P.2d at 1134. By the same reasoning Whittington’s illness was not an injury. He had suffered with breathing difficulties for years and had suffered harsh bronchial attacks when he welded. It was not unexpected that he should suffer breathing problems when he chose to weld again in September 1982 even though one doctor had advised him against any more welding and Whittington had told another doctor that his welding caused him breathing trouble.

Section 39-71-119(2) was interpreted in Schieno v. City of Billings (Mont. 1984), [210 Mont. 457,] 683 P.2d 953, 41 St.Rep. 1157, to require that a firefighter who claimed his 26 years of exposure to smoke, toxic gases and fumes contributed to, or aggravated, his coronary heart disease must prove it is “medically probable” that the occupation caused the disease. In Schieno, the medical testimony was that the claimant’s smoking, high blood pressure and family history of heart disease would have been sufficient to cause heart disease. Since he failed to prove by a medical probability that his heart disease was caused by his employment, he was denied permanent total disability. Schieno, 683 P.2d at 955.

In the present case, Whittington failed to prove that his disease was caused by his occupation. The physicians testified that Whittington’s distress was more than likely caused by his history of cigarette smoking. Because the doctors did not tie the cause of his disease to his work by a medical probability he did not qualify for compensation under Section 39-71-119(2), MCA.

The Workers’ Compensation Court decision is supported by sufficient credible evidence. The claimant’s welding job was neither the instantaneous, unexpected happening that disabled the worker nor was it the cause of his disease. As such, Montana law provides him and his family benefits under the Occupational Disease Act, Section 39-72-101 et seq., MCA. His request for Workers’ Compensation benefits under Section 39-71-119, MCA, was properly denied.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES GULBRANDSON and McDONOUGH concur.

MR. JUSTICE HUNT,

dissenting:

I dissent. The majority is incorrect when they say that Ridenour is not controlling in this case. Although the majority correctly distinguishes between occupational disease and injury, it fails to realize that this is indeed a case where “an occupational disease [has been] converted to an accident by an unusual and sudden dosage of’ welding dust. Larson, Workmen’s Compensation Law, Vol. IB, Section 41.31. The majority states that Whittington failed to identify an unexpected tangible happening that occurred on a specific date. In so stating, the majority ignores key testimony from both the claimant and his wife that the claimant experienced severe difficulty breathing immediately after several shifts working on welding stainless steel. The majority ignored claimant’s testimony that he became nearly housebound immediately after the attack. This is not a case when the claimant has gradually had to give up his activities due to increasing severity of his pulmonary disease. This is a case where the exposure to several days of toxic fumes resulted in such pulmonary distress as to limit the claimant to the confines of his house and yard.

The majority contends that the claimant was not able to fix his injury to a definite time. Yet it is clear that Whittington’s difficulties began directly after his September, 1982, welding shifts. The majority quotes Professor Larson as stating that:

“What set occupational disease apart from accidental injuries was both the fact that they could not honestly be said to be unexpected, since they were recognized as inherent hazard of continued exposure to conditions of the particular employment, and the fact that they were gradual rather than sudden in onset. Thus, what would ordinarily be an occupational disease might be converted to an accident by an unusual and sudden dosage of the same kind of dust or fumes that, absorbed gradually over a long period, would produce typical industrial disease.”

Larson, Workmen’s Compensation Law, Vol. IB Section 41.31, (1987).

Professor Larson has also stated:

“As to suddenness of cause: the tendency has been to recognize episodes or exposures of several hours’ or even several days’ duration, since for all practical purposes, including those mentioned at the outset of this section, identification of the time of accident within a matter of a few days is sufficiently precise ....
“Put negatively, this is merely to say that injury, to be accidental, need not be instantaneous.”

Larson, Workmen’s Compensation Law, Vol. IB, Section 39.20.

Professor Larson also states this about the time definiteness of the result of an accident.

“[I]n various situations an otherwise-gradual kind of deterioration may culminate in an obvious and sudden collapse and structural change whose incidence can fix the date of accident clearly.”

Larson, Vol. IB at Section 39.30.

As an example, Professor Larson mentions that years of inhaling welding fumes that results in a sudden inability to breath satisfies the definition of accident. Id.

Whittington’s pre-existing disease does not preclude Workers’ Compensation for an aggravation or acceleration of the disease by an industrial injury or accident. Ridenour, 665 P.2d at 787-88. This case squarely fits within the Ridenour analysis and claimant should not have been forced to accept a lower compensation award under the Occupational Disease Act.


author: MR. JUSTICE SHEEHY

text:
    In re the MARRIAGE OF KENNETH JONES, Petitioner and Appellant, and RITA ANN “GOBERT” JONES, Respondent and Respondent.
    No. 87-134.
    Submitted on Briefs Aug. 6, 1987.
    Decided Nov. 5, 1987.
    Rehearing Denied Dec. 3, 1987.
    745 P.2d 350.

      Byron W. Boggs, Missoula, for petitioner and appellant.
    Robert Skelton, Skelton & Cooley, Missoula, for respondent and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Kenneth Jones appeals from the final judgment entered in the District Court of the Fourth Judicial District, Missoula County, dividing property of the marital estate between the parties. We affirm.

The following issues are raised:

1. Did the District Court err by including the lump sum Workers’ Compensation awards received by the husband in the marital estate?

2. Did the District Court err in finding the husband’s Workers’ Compensation awards to have been co-mingled?

3. Did the District Court err by awarding to the wife certain monies of the marital estate twice?

4. Did the District Court abuse its discretion in not allowing the husband credit for the money spent for his son’s legal expenses?

5. Did the District Court abuse its discretion in granting the wife cash in lieu of her personalty?

6. Did the District Court abuse its discretion in not allowing the husband credit for the money he expended for the wife’s benefit after the separation?

The record of this case and the findings of fact made by the District Court disclose the following pertinent information: Kenneth and Rita Jones were married in 1958. The parties dissolved their marriage on June 15, 1985. On September 22, 1986, the matter of property division was addressed by the court.

During the marriage, the wife worked as a homemaker and mother and was at times employed outside of the home. She contributed her wages to pay family expenses and also contributed her labor on the small farm the parties purchased in 1971 in the State of Washington.

In 1978, the husband was injured in an industrial accident. Since his injury, he has been receiving temporary total disability benefits through FELA in the sum of $1,850 per month. He netted $18,000 from a third party claim arising out of the disabling accident. The monthly FELA payments as well as the third party claim proceeds were deposited when collected in the couples’ joint checking and savings accounts in the Toppinish Branch of the Seattle-First National Bank.

In May, 1981, the wife and her minor daughter left the family home in Washington and came to Montana. The husband testified at this time the couples’ savings account had approximately $20,000 in it. He continued to operate and make payments on the farm and the family home.

In 1984, the husband, with a power of attorney from the wife, sold the couples’ real property. The net amount received for the property was $60,048. At the present time, the wife has not received any of the proceeds from the sale of the home.

The District Court held the marital estate consisted of $20,000 cash savings (1981), personal property worth $19,148 and net proceeds from the sale of the family home in the amount of $60,048, the total value of the estate being $99,196. The District Court further held that the wife was entitled to one-half that amount being $49,598 less the value of the car in the wife’s possession or $43,598.

As the District Court correctly noted, the husband contributed his benefits as well as the proceeds from his third party claim to the marital estate. The husband asserts that such funds are exempt from inclusion when determining the value of the marital estate. We do not agree with this assertion. The facts clearly demonstrate that the money in question was properly found to be part of the marital estate. The husband placed these monies in the couples’ joint account. Once the funds were placed in the joint account, the wife had an equal interest in and an equal right to those funds. See Casagranda v. Donahue (1978), 178 Mont. 479, 585 P.2d 1286. Further, in utilizing the FELA funds to diminish the debt on the family residence, the husband unequivocably placed the funds in the marital estate.

Husband further contends that the FELA benefits which he received were not co-mingled with other marital property and therefore not includable in the marital estate. We find the contrary to be true. As previously stated, the husband deposited these monies in the couple’s joint account where the funds were mingled with other funds of the marital estate.

We will now address issues 3, 4 and 5. The husband alleges that the District Court abused its discretion in: awarding the wife certain monies of the marital estate twice; not crediting the husband for money spent for his son’s legal expenses; and, granting the wife cash in lieu of her personalty. We disagree.

Section 40-4-202(1), MCA, controls the division of property in a dissolution proceeding, it provides in pertinent part:

“40-4-202. Division of property. (1) In a proceeding for dissolution of a marriage, legal separation, or division of property following a decree of dissolution of marriage or legal separation by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to divide the property, the court, without regard to marital misconduct, shall, and in a proceeding for legal separation may, finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both. In making apportionment, the court shall consider the duration of the marriage and prior marriage of either party; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; custodial provisions; whether the apportionment is in lieu of or in addition to maintenance; and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family unit . . .” (Emphasis added.)

The District Court awarded the wife half of the money from the couples’ joint bank account at the time she left her husband in 1981 and half of the net proceeds from the 1981 sale of the couple’s family home.

The husband has failed to show the District Court was clearly erroneous concerning the division of the property comprising the marital estate. Rule 52(a), M.R.Civ.P. The husband in his brief seems to imply that in order for this Court to uphold the judgment of the District Court, we must find that the marital estate was divided equally between the two parties. This is not true. Disposition of property in a dissolution need not be equal but it must be equitable. Section 40-4-202, MCA. Appellant has made no showing to this Court that the disposition of the property of the marital estate was done in anything but an equitable fashion.

In Re Marriage of Summerfelt (Mont. 1984), [212 Mont. 332,] 688 P.2d 8, 41 St.Rep. 1775, this Court reiterated the well-settled rule that

“The apportionment made by the District Court will not be disturbed on review unless there has been a clear abuse of discretion as manifested by a substantial inequitable division of the marital assets resulting in substantial injustices. In Re the Marriage of Brown (1978), 179 Mont. 417, 587 P.2d 361.”

See also In Re Marriage of Snyder (Mont. 1986), [220 Mont. 262,] 714 P.2d 556, 43 St.Rep. 346; Marriage of McCormack (Mont. 1986), [223 Mont. 409,] 726 P.2d 319, 43 St.Rep. 1833; Hurley v. Hurley (Mont. 1986), [222 Mont. 287,] 721 P.2d 1279, 43 St.Rep. 1271; In Re Marriage of Garst (Mont. 1983), [206 Mont. 89,] 669 P.2d 1063, 40 St.Rep. 1526. The husband asserts error on the part of the District Court in failing to credit him for monies expended for legal expenses on behalf of his son. The record shows that the money used to pay the legal fees incurred by the son came from the couples’ joint account and as such came from the parties marital estate. The evidence further reveals that the wife contributed her own funds toward the son’s legal expenses.

Lastly, husband contends that the District Court abused its discretion in not allowing the husband credit for monies he expended for the benefit of his wife after the separation. We disagree. When determining and distributing the marital estate, monies expended for the living expenses of the wife need not be credited to the husband. Burleigh v. Burleigh (1982), 200 Mont. 1, 650 P.2d 753; In Re Marriage of Caprice (1978), 178 Mont. 455, 585 P.2d 641.

We affirm.

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


author: MR. CHIEF JUSTICE TURNAGE

text:
    In the MATTER OF DECLARING V.B., T.B., D.B. AND B.B., Youths in Need of Care.
    No. 87-162.
    Submitted on Briefs Aug. 13, 1987.
    Decided Nov. 5, 1987.
    744 P.2d 1248.

      O’Brien & Conrad, Barbara J. Conrad, Missoula, for appellant.
    Mike Greely, Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Margaret Borg, Bruce M. Wilson, Missoula, for respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

W.B. appeals a February 18, 1987, order of the Fourth Judicial District, Missoula County. The order terminated her parental rights but allowed contact with the children if the Department of Social and Rehabilitation Services (SRS) determines that such contact is in the children’s best interests. We affirm.

Appellant W.B. presents a single issue for our review: Did the District Court abuse its discretion in terminating parental rights while simultaneously maintaining the possibility of parental contact?

W.B. is the natural mother of four children, ranging in age from six to twelve. She has been diagnosed as having a borderline personality disorder with marked shifts in moods and behavior. She also suffers from a seizure disorder with secondary psychosis. Prior to 1984, she was admitted to Warm Springs State Hospital eleven times.

From 1984 to 1986, W.B. was admitted seven times to the mental health unit of St. Patrick’s Hospital in Missoula. SRS placed her children in foster care six times due to W.B.’s chronic mental and emotional problems. During this time, the children were in their mother’s care for a total of three months.

On May 27, 1986, the Missoula County Attorney filed a petition on behalf of SRS for temporary legal custody of the children. On June 16, 1986, W. B. stipulated to a court order which found that the children were neglected within the meaning of Section 41-3-102(2), MCA. The statute provides:

“An ‘abused or neglected child’ means a child whose normal physical or mental health or welfare is harmed or threatened with harm by the acts or omissions of his parent or other person responsible for his welfare.”

The father of the children also stipulated to the order, and agreed to participate in a separate treatment plan. The court granted temporary legal custody of the children to SRS.

In the same order, the District Court approved a treatment plan for W. B. under which SRS would gradually return the children to W.B.’s physical care. The treatment plan failed within two months. W.B. was again hospitalized for her recurring mental problems. SRS again placed the children in foster homes. On September 12, 1986, the Missoula County Attorney filed a petition on behalf of SRS to terminate W.B.’s parental rights.

The District Court heard the matter on February 6, 1987. The court found that all of the children suffer from lack of appropriate affection, attention and emotional stability. In addition, the three oldest have learning disabilities. The court found that appellant’s mental and emotional problems are too great for her to provide the structure and consistency the children require. Therefore, the court terminated the parent-child relationship.

However, the court also found that all of the children have a psychological attachment to their mother. The court stated:

“They would benefit from contact with her if it were regular and consistent, and if her behavior does not upset the children.
“Child psychologists that have examined the children believe that it would be appropriate to allow visitation between [W.B.] and the children if it was in the best interests of the children. Such visitation should not be right of [W.B.]." [Emphasis added.]

Based on these findings, the court then ordered:

“[W.B.] may contact the children, as restricted by SRS, when SRS determines that such contact is in the children’s best interests.
“Before SRS consents to an adoption of any of the children, consideration should be given to whether the adoptive parents would voluntarily allow contact between [W.B.] and the adoptive child.”

[Emphasis added.]

The District Court also ordered that SRS would retain legal custody of the children pending a determination of the father’s rights.

On appeal, W.B. does not request physical custody of the children. However, she does contend that she should retain her visitation rights because the court found that some contact with the children might be beneficial to them. She argues that the order providing for limited contact conflicts with Section 41-3-611(1), MCA, which states in pertinent part:

“An order for the termination of the parent-child relationship divests the child and the parents of all legal rights, powers, immunities, duties, and obligations with respect to each other . . [Emphasis added.]

W.B. contends that the parent-child relationship in Montana is an “all-or-nothing principle.” She argues that the only way for the court to act in her children’s best interests is to not terminate the parent-child relationship and thus ensure her right to visitation. W.B. also asserts that substantial evidence does not support the court’s finding that her lack of fitness would continue.

On review of this issue, we will not disturb the District Court’s decision unless the findings of fact are not supported by substantial, credible evidence, or the conclusions of law amount to a clear abuse of discretion. Matter of C.P. (Mont. 1986), [221 Mont. 180,] 717 P.2d 1093, 1095, 43 St.Rep. 728, 730.

In analyzing a custody issue, the best interests of the children are paramount. Matter of C.M.S. (1980), 187 Mont. 115, 123, 609 P.2d 240, 244. The record shows that W.B. cannot provide basic care, such as shelter and supervision, for her children because of her repeated hospitalization. W.B.’s behavior toward her children is erratic and volatile. The three psychologists who treated the children agreed that it would be in the children’s best interests for W.B.’s legal rights to be terminated. One of the psychologists who observed W.B.’s interaction with her children testified: “I would like to emphasize that if we do not provide the stable environment for these children, that we can say that the three older children are going to be institutionalized and under the care of the State of Montana throughout their lifetime.”

The District Court made specific findings, in accordance with Section 41-3-609(l)(c), MCA, on W.B.’s failed treatment plan and lack of fitness. The statute allows the District Court to order a termination. of the parent-child legal relationship upon a finding that:

“(c) the child is an adjudicated youth in need of care and both of the following exist:
“(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
“(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.”

The District Court’s findings were fully supported by the testimony and documents. We find that the District Court properly terminated W.B.’s parental rights.

Regarding visitation, we have often held that when parental rights are terminated, the natural parent no longer has any rights over the child. This includes visitation rights. Matter of C.P., 717 P.2d at 1095; Section 41-3-611(1), MCA. However, in W.B.’s case the same psychologists who advised that her parental rights be terminated also attested to the close relationship between W.B. and her children. The psychologists recommended some contact with the children under appropriate conditions.

Focusing on the children’s best interests, the District Court had the delicate task of defining the scope of contact within a warm but erratic family relationship. The District Court carefully fashioned a conciliatory order which acknowledged both W.B.’s lack of fitness as a mother and the children’s affection for her. The District Court distinguished contact from visitation. The court’s order granted no right of visitation but simply allowed the possibility of contact conditioned upon SRS approval. In view of the respective ages of the children, 12, 11, 9 and 6, such an order is reasonable.

The court also limited SRS to mere consideration of contact in the event of the adoption of the children. Such consideration was further conditioned on the consent of the adoptive parents to any contact with W.B. This limitation accords with Section 40-8-125(2), MCA, which states:

“After a final decree of adoption is entered, the natural parents . . . shall be relieved of all parental responsibilities for said child and have no rights over such adopted child or to his property by descent and distribution.”

The restricted contact allowed by the court falls short of a visitation right. We find no inherent conflict within the findings of fact and conclusions of law. We caution, however, that when parental rights are terminated, continuing contact is allowable only in exceptional cases. In the event of an adoption, continuing contact cannot be court-ordered even with SRS approval.

We hold that the District Court acted within its discretion and in accordance with the custody statutes.

Affirmed.

MR. JUSTICES HARRISON, WEBER, SHEEHY, McDON-OUGH, GULBRANDSON and HUNT concur.


text:
    The STATE OF MONTANA, Plaintiff and Respondent, v. KATHRYN DIANNE TAYLOR, a/k/a Naomi D. Schimetz, Defendant and Appellant.
    No. 87-254.
    Submitted on Briefs Aug. 27, 1987.
    Decided Nov. 5, 1987.
    745 P.2d 337.

      David W. Harman, Libby, for defendant and appellant.
    Mike Greely, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Susan Loehn, Co. Atty., Scott B. Spencer, Deputy Co. Atty., Libby, for plaintiif and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Kathryn Dianne Taylor, sometimes known as Naomi D. Schimetz, now in her mid-40’s is a social failure. That would be a verdict of society, or of any doctor, banker, lawyer or judge reviewing her case. She has been in and out of jailhouses, more or less constantly since 1973. Her crimes are not violent, involving the issuance of bad checks or forgeries. Though arrested in 1975 for DUI, there is no record here of drug or alcohol abuse, but she is addicted to tobacco. She is probably a liar, or at least has fantasies about her past. Though she claims to have worked as a nurse in Missoula, and as a waitress or at unskilled jobs, she has little or no work record.

She was released from the Women’s Correctional Center at Warm Springs, Montana, on November 22, 1985. She turned up in Libby, Montana, on May 29, 1986, when she was convicted of issuing bad checks, a theft charge, which resulted in three months in jail. On November 18, 1986, again in Libby, she was convicted of issuing bad checks and given six months on each count with all but 30 days suspended. On February 3, 1987, again in Libby, she was convicted of issuing bad checks and given 30 days in jail. For reasons unclear, her post-conviction report says she was denied “work fare.”

This case involves her activities beginning on March 5, 1987. Between then and March 15, she purchased meals and other merchandise from Libby merchants by passing off savings withdrawal slips as checks which the merchants cashed. She negotiated 9 such slips, for an overall total of $139.20. Three such withdrawal slips, typical of all the rest follow.

Kathryn Dianne Taylor was arrested on March 22, 1987, and charged in the District Court, Nineteenth Judicial District, Lincoln County, with issuing bad checks by common scheme, a felony, under Section 45-6-316, MCA. Her case was tried without a jury and the District Court made findings of fact and conclusions of law to the effect that the withdrawal slips so negotiated to merchants were “an order for the payment of money” making her guilty under the statute. She was sentenced to the maximum provided for such a common scheme felony — ten years in the Women’s Correctional Center at Warm Springs. Her court-appointed counsel has appealed the conviction to this Court, contending that the withdrawal slips negotiated by her were not in any case a “check or order” and thus she was improperly convicted.

Our statutes define the crime of theft as follows:

“45-6-301. Theft .... (2) a person commits the offense of theft when he purposely or knowingly obtains by threat or deception control over the property of the owner and:
“(a) has the purpose of depriving the owner of the property; . . .”

On the other hand, the crime of issuing a bad check is defined:

“45-6-316. Issuing a bad check. (1) A person commits the offense of issuing a bad check when he issues or delivers a check or other order upon a real or fictitious depository for the payment of money knowing that it will not be paid by the depository.
“(3) A person convicted of issuing a bad check shall be fined not to exceed $500 or be imprisoned in the county jail not to exceed 6 months, or both. If the offender is engaged in issuing bad checks which are part of a common scheme ... he shall be fined, not to exceed $50,000 or be imprisoned in the state prison not to exceed 10 years, or both.”

Without doubt, the actions of Kathryn Dianne Taylor in negotiating withdrawal slips as checks was a deception which constituted theft under Section 45-6-301, MCA. However, if the withdrawal slips as presented could qualify “as a check or other order” and the misdemeanors which Kathryn Dianne Taylor had committed were part of a common scheme, she could be convicted of a felony, notwithstanding the total amount involved in the 9 withdrawal slips is less than $300. The State chose the felony charge for obvious, though unstated reasons: a felony conviction would remove Kathryn Dianne Taylor from the streets of Libby (and its county jail) for a protracted period; the county would be spared the expense of her continuing incarceration; and her felony conviction would remove her continuing danger to merchants who could not discern between a withdrawal slip and a check.

It should be noted, however, that the Libby bank which issued the withdrawal slip forms would honor as checks such forms as negotiated by Kathryn Dianne Taylor, had she had sufficient funds in the Libby bank. Nonetheless, on each of the three rejection forms in evidence authored by the bank in returning these purported checks, the bank noted on each “not a check.”

The question for us to decide in this case, therefore, is whether the withdrawal slips negotiated by Kathryn Dianne Taylor, as checks constitute in each case, “a check or other order” within the purview of our statute defining the crime of issuing a bad check. If so, her conviction must be upheld; if not, a reversal is in order.

How is this Court to construe statutes which define criminal offenses? We are told in Section 45-1-104, MCA, that no conduct constitutes an offense unless it is described “as an offense in this code or in another statute in this state.” We are further told that the general purposes of the provisions governing the definition of offenses are “to safeguard conduct that is without fault from condemnation as criminal, to give fair warning of the nature of the conduct declared to constitute an offense, and to differentiate unreasonable grounds between serious and minor offenses.” Section 45-1-102, MCA. One charged with crime has a right “to demand the nature and cause of the accusation.” Art. II, Section 24, 1972 Mont. Const. This Court has stated that a statute which carries a penalty, making its violation a crime, should be expressed with a degree of certainty such that what must be observed or done may be understood without relying on inferences. State v. Salina (1944), 116 Mont. 478, 154 P.2d 484. We have said that no interpretation should be given any word which would make an act a crime unless it is clear the legislature intended that interpretation should be given the word. State v. Duran (1953), 127 Mont. 233, 259 P.2d 1051. Yet there could be no doubt that if the statute defining the offense of issuing a bad check is applicable here, the State cannot be faulted for pursuing a felony conviction instead of misdemeanor conviction. See State v. Evans (1969), 153 Mont. 303, 456 P.2d 842.

The District Court concluded that the documents tendered by Kathryn Dianne Taylor for savings withdrawal slips were written to make them appear to be checks. The documents were offered as checks and accepted as checks by the various businesses. The court concluded that the documents constituted an order for the payment of money. It further concluded that the documents had all the elements required by the bank to be paid provided the maker had a valid account with the bank.

Our criminal statutes do not define either a “check” or an “order” but one or the other is a necessary element to a crime under Section 45-6-316, MCA. In that circumstance, we may turn to the provisions of the Uniform Commercial Code for guidance. See Faulkner v. State (Alaska 1968), 445 P.2d 815.

Under the definitions of instruments in the Uniform Commercial Code, withdrawal slips in this case are neither a “check” nor an “order” for the payment of money. To be a “check,” the instrument must contain an unconditional promise or order to pay a sum certain in money, and it must be payable to order or to bearer. Section 30-3-104, MCA. An instrument which complies with the requirements of Section 30-3-104 is a check, if it is a draft drawn on a bank and payable on demand. It is a “draft” if it is an order, Section 30-3-104(2)(a)(b). An “order” is a direction to pay and must be more than an authorization or request. It must identify the person to pay with reasonable certainty. Section 30-3-102(b), MCA.

When we examine the withdrawal slips in this case, we do not find therein any promise or order to pay any person. In other words, it is not “payable to order or bearer.” The names of the purported payees under these checks appear under the account number, a space that is obviously intended for the name in which the account is held. The writing itself is not an order to pay but an instruction to the bank to “deduct the above sum from my savings account.” This language does not meet the requirement that an “order” must be a direction to pay. See People v. Norwood (1972), 26 Cal.App.3d 148, 103 Cal.Rptr. 7 (a savings account draft is not a “check”).

The laws defining criminal offenses are not rubberbands to be stretched to cover any social purpose, however worthy. It would be an affront to our honor as jurists to construe these instruments for criminal purposes as anything but withdrawal slips, and to designate them as checks or orders for the payment of money. The findings of the District Court reveal the deception in which the defendant engaged to pass off these instruments: that others had accepted them, that she was using these slips until she got her checks, that she was in the process of moving and had been unable to transfer funds from her savings account to her checking account. She was obtaining the property of others through deception, a theft, under Section 45-6-301, MCA. The prosecution should have occurred under the statute defining the offense of theft.

Because withdrawal slips negotiated through deception are not checks or orders for the payment of money, the conviction in this case of Kathryn Dianne Taylor is reversed.

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


author: MR. JUSTICE McDONOUGH

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMES NEIL HEDRICK, Defendant and Appellant.
    No. 86-581.
    Submitted on Briefs Aug. 27, 1987.
    Decided Nov. 10, 1987.
    745 P.2d 355.

      Billy B. Miller, Great Falls, for defendant and appellant.
    Mike Greely, Atty. Gen., Kimberly Kradolfer, Asst. Atty. Gen., Helena, Patrick L. Paul, Co. Atty., Great Falls, for plaintiff and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Defendant James Neil Hedrick was convicted of the separate offenses of sexual assault, Section 45-5-502, MCA, and deviate sexual conduct, Section 45-5-505, MCA. Defendant appeals these convictions. We affirm.

The issues on appeal are:

1. Did the District Court err in failing to grant defendant’s motion for mistrial based upon jury misconduct?

2. Did the District Court err in failing to grant defendant’s motion for mistrial based upon tainted identification evidence?

3. Did the District Court err in failing to grant defendant’s motion for dismissal pursuant to Section 46-16-403, MCA, based upon insufficient identification evidence?

On August 8, 1985, the defendant, James Neil Hedrick pled not guilty to the felony counts of sexual assault and deviate sexual conduct. On May 6, 1986, a Cascade County jury found the defendant guilty of the separate offenses involving two victims.

The 5 year old victim of the sexual assault was assaulted while visiting the home of her grandparents on June 16, 1985. The defendant was also visiting the grandparents’ home. At trial the victim was unable to identify the defendant as the person who assaulted her, she did testify that “Jim” had assaulted her. Both the victim’s mother and grandmother identified the defendant as the Jim that was visiting that afternoon.

The 6 year old victim of the deviate sexual conduct, his brother, age 5, and another child, age 11, (hereinafter witness) were approached on July 14, 1985 by a man named Jim who offered to buy them pop and candy while in the park. The victim testified that the man named Jim took him to a wooded area and there engaged in the deviate sexual conduct. On July 26, 1985 officer Robert Dykeman of the Great Falls Police Department conducted a photographic lineup. Both the victim and his brother identified the defendant, James Neil Hedrick, as the perpetrator of the crime. At trial, the victim, his brother and the witness could not identify the defendant as the man in the park. After testifying, the victim and his brother found their mother in the hallway. Their mother testified that the children could, but were too frightened to identify the defendant. She testified that she told the victim that it was very important for him to identify the defendant. The victim once again took the stand and positively identified the defendant.

The defense moved for a mistrial on the grounds that the victim’s identification of the defendant was so tainted as to deny the defendant due process. The court allowed the victim’s mother to testify and allowed the defense an opportunity to cross-examine her. During the subsequent hearing on the motion the defendant asserted that he saw some jurors talking to the victim and his brother.

The court denied the motion for mistrial holding that the conversation between the victim and his mother was a matter of witness credibility. Subsequent defense motions on the grounds of jury misconduct and insufficient evidence of identification were also denied.

The standard of review for overturning a district court’s ruling on a mistrial was stated in State v. Counts (Mont. 1984), [209 Mont. 242,] 679 P.2d 1245, 1248, 41 St.Rep. 681, 686, quoting Schmoyer v. Bourdeaux (1966), 148 Mont. 340, 343, 420 P.2d 316, 317-18, “We hold that once the District Court has considered the matter, however it is raised, whether on a question for mistrial or motion for a new trial this Court will not lightly disturb that ruling. To overthrow it this court must be shown by evidence that is clear, convincing, and practically free from doubt, of the error of the trial court’s ruling.” In order to overturn the District Court’s denial of the mistrial motion based upon jury misconduct the defense must produce clear and convincing evidence that the District Court erred in denying the mistrial motion.

The only evidence of jury misconduct is the defendant’s statement that he saw some jurors talking to the victim and his brother. This evidence does not meet the standard set in State v. Dickens (1982), 198 Mont. 482, 647 P.2d 338 for demonstrating prejudice to the defendant. The facts in Dickens are similar to the facts of this case. In Dickens, evidence existed that there was communication between a witness and a juror, but no evidence demonstrated any prejudice to the defendant:

“The first instance of alleged misconduct took place, according to the appellant, during the trial when several members of the jury were seen, by several of appellant’s witnesses facing some of the prosecution’s witnesses and moving their mouths. It is not clear from the record whether any conversation was actually heard, but the appellant’s witnesses did testify during the motion for a new trial that it ‘appeared’ some communication took place .... [T]his type of communication, a possibility at best, is not sufficient reversible error. In Turner v. Louisiana (1965), 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424, a case cited as controlling on this issue by appellant, the United States Supreme Court held that a verdict can be reversed if it can be shown that communications of a dubious nature takes [sic] place between prosecution witnesses and jurors. A review of the facts in Turner reveals that what consisted of reversible error there is a far cry from what transpired in the present case. In Turner, the two key prosecution witnesses were deputy sheriffs who were also in charge of the jurors. The Court noted:

“ ‘. . . We deal here not with a brief encounter, but with a continuous and intimate association throughout a three-day trial — an association which gave these witnesses an opportunity, as Simmons (one of the deputies) put it, to renew old friendships and make new acquaintances among the members of the jury.’ 85 S.Ct. at 550.’
“There is a distinction drawn by the United States Supreme Court between a ‘brief encounter’ and an ‘intimate association’ and that distinction is applicable here. At best, the record reflects some innocuous type of conversation . . . There was, quite simply, not enough evidence presented by appellant to warrant a new trial. Charlie v. Foos (1972), 160 Mont. 403, 503 P.2d 538.”

Dickens, 647 P.2d at 341-42. The defendant cannot produce any evidence that he was prejudiced or that the contact between the jurors and the victim and his brother was anything more than a brief, innocuous encounter. There is no evidence to warrant a mistrial based upon jury misconduct, thus the District Court did not err when it refused to grant a mistrial.

The defense claims that the District Court erred when it allowed the victim of the deviate sexual conduct to identify the defendant after speaking with his mother. The defense moved for mistrial on the grounds that the evidence was so tainted as to deny the defendant due process. The same standard of review for the District Court’s refusal to grant a mistrial in the previous issue applies here. The defense must demonstrate clear and convincing evidence that the identification techniques, the victim’s encounter with his mother and subsequent testimony, produced a substantial likelihood of irreparable misidentification. State v. Bauer, (Mont. 1984), [210 Mont. 298,] 683 P.2d 946, 41 St.Rep. 1066. The District Court held that the incident went to the weight of the evidence and was best left to the determination of the jury.

The defendant’s remedy for questionable identification techniques is cross-examination. The identification technique must be flagrantly suggestive before evidence is suppressed. This Court stated in State v. Miner (1976), 169 Mont. 260, 266, 546 P.2d 252, 256, “Therefore, unless the error is obvious and the prejudice clear, the defendant’s remedy is in effective cross-examination with the identification question then becoming one of weight to be determined by the jury and not one of admissibility.” Neither the error nor the prejudice is obvious here. The defense was given the opportunity to cross-examine both the victim and his mother. It is quite possible that the victim could, but was afraid to identify the defendant and that his mother merely stressed the importance of identifying the perpetrator and urged the child to set aside his fears. The jury was free to believe the testimony to this effect.

The independent basis for the victim’s in court identification also prevents the possibility of a substantial likelihood of irreparable misidentification. The criteria for evaluating the likelihood of misidentification are:

“(1) opportunity of the witnesses to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.”

Bauer, 683 P.2d at 949. The victim in this case had the opportunity to view the defendant and surely was attentive. The victim also successfully identified the defendant 12 days after the incident from a photographic lineup.

With the opportunity to cross-examine both the victim and his mother and satisfaction of many of the Bauer criteria the District Court did not err when it refused to grant a mistrial and held that the identification question was a matter of weight to be determined by the jury.

The defense also asserts that it was error for the District Court to deny the defense’s motion for dismissal pursuant to Section 46-16-403, MCA, based upon the failure of the state to prove the essential elements of the crime by failing to produce a witness who could identify the defendant. This court will disturb a district court’s ruling on a motion to dismiss only upon a showing of abuse of discretion. State v. Goltz (1982), 197 Mont. 361, 642 P.2d 1079. The standard for granting a directed verdict of acquittal was articulated in State v. Yoss (1965), 146 Mont. 508, 514, 409 P.2d 452, 455, “A directed verdict in a criminal case in this jurisdiction is given only where the State fails to prove its case and there is no evidence upon which a jury could base its verdict.” The State presented the testimony highlighted in the facts of this opinion that linked the defendant to both the sexual assault and the deviate sexual conduct. The trial court did not abuse its discretion when it refused to grant the defendant’s motion to dismiss.

Affirmed.

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