author: JUSTICE TRIEWEILER

text:
    WILLIAM F. O’CONNOR, Plaintiff and Appellant, v. DONALD NIGG, Defendant and Respondent.
    No. 91-350.
    Submitted on briefs Dec. 30, 1991.
    Decided Sep. 21, 1992.
    49 St.Rep. 817.
    838 P.2d 422.
    254 Mont. 416.
    For Plaintiff and Appellant: David N. Hull, Helena.
    For Defendant and Respondent: Joe Seifert, Gough, Shanahan, Johnson and Waterman, Helena.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Plaintiff William F. O’Connor brought this action against defendant Donald Nigg alleging that he was injured in an automobile collision which was the proximate result of Nigg’s negligence. The District Court granted summary judgment to defendant, dismissing plaintiff’s claim. The plaintiff appeals that order of summary judgment. We affirm.

The sole issue on appeal is whether the District Court properly concluded as a matter of law that the defendant’s negligence was not the proximate cause of plaintiff’s accident and injuries.

On March 21,1988, Nigg was operating his vehicle in an easterly direction on Interstate Highway 90. At a location approximately three quarters of a mile west of Drummond, Montana, he lost control of his vehicle. The vehicle left the traveled portion of the roadway, overturned, and came to rest in the median area between the westbound and eastbound lanes of travel. No portion of the vehicle remained on or obstructed any portion of the highway. At the time of Nigg’s accident, James and Julie Gallagher were following him in another vehicle. They observed the accident and stopped to render assistance. They pulled their vehicle off to the right hand side of the eastbound lanes, near where Nigg left the road. No part of their vehicle was in the traveled portion of the highway, and they turned on their emergency flashers as a warning to oncoming traffic.

The Gallaghers comforted Nigg and assisted him into another vehicle which arrived shortly after the accident. That vehicle took Nigg to a nearby town for medical assistance.

Approximately five minutes after Nigg’s accident, Roger Cousineau, a member of the Montana Highway Patrol, arrived at the scene. He pulled his vehicle off the highway on the left hand side of the eastbound lanes. No part of his vehicle obstructed the eastbound lanes and he turned on the flashing blue and red light on top of his vehicle to warn oncoming traffic of his presence.

The roadway at the scene of the accident was straight and level. Cousineau estimated that there was visibility to the west for a distance of about one-half mile, and to the east for a distance of approximately one mile. The weather was overcast, but not to the extent that visibility was obscured. There were no other obstructions to a driver’s view in either direction on the highway. Furthermore, the roadway was dry.

Approximately five minutes after Cousineau arrived, and while he was continuing his investigation of Nigg’s accident, O’Connor approached the accident scene from the west. Cousineau recalls looking over his shoulder and seeing O’Connor’s vehicle slowing down as it approached the accident location. He recalls motioning to him to keep going.

Julie Gallagher testified by deposition that in spite of Cousineau’s directions to O’Connor, he continued to slow his vehicle while looking back at the accident scene. She testified that if he was not completely stopped, he came close to stopping his vehicle on the highway.

After O’Connor had reached a point shortly beyond where Cousineau’s vehicle was parked, he was struck from behind by a vehicle being operated in an easterly direction by Valerie Drapella.

In spite of the flashing lights on the patrol car and the Gallagher vehicle, and in spite of O’Connor’s presence in the middle of the eastbound passing lane, Drapella failed to apply her brakes until shortly before the collision, and struck O’Connor at a high rate of speed. Drapella’s first remark when Julie Gallagher approached her car was, “Where in the hell did that idiot come from?”

O’Connor filed his complaint on September 29,1989, alleging that as a proximate result of Nigg’s negligence and the accident investigation that followed, he was involved in a motor vehicle collision from which he was injured.

After answering the complaint, Nigg moved for summary judgment on the basis that, if negligent, his negligence was not the proximate cause of plaintiff’s injuries.

On May 10, 1991, Nigg’s motion for summary judgment was granted. In awarding summary judgment, the District Court reasoned that although Nigg may have been negligent, and his negligence may have been a cause in fact of O’Connor’s injury, Nigg’s conduct was not the proximate cause of O’Connor’s collision or injuries because the intervening act of negligence by Drapella was not foreseeable. The District Court relied on our recent decision regarding proximate cause in Kitchen Krafters v. Eastside Bank of Montana (1990), 242 Mont. 155, 789 P.2d 567.

It is plaintiff’s position on appeal that based upon our previous decisions on proximate cause there was a factual issue for a jury to determine whether it was reasonably foreseeable that the hazard created by the defendant’s original act of negligence could lead to the kind of second collision that occurred in this case. Plaintiff relies on our prior decisions in Thayer v. Hicks (1990), 243 Mont. 138, 793 P.2d 784, and Sizemore v. Montana Power Co. (1990), 246 Mont. 37, 803 P.2d 629. Plaintiff submitted evidence by affidavit that further harm to other persons is always a concern at an accident scene and contends that that was sufficient to raise an issue of fact to be decided by the jury.

The defendant, on the other hand, contends that in order to establish proximate cause there must be an uninterrupted chain of events and that in this case the negligence of plaintiff and Drapella were new, independent causes as a matter of law. The defendant relies on our prior decision in Halsey v. Uithof (1975), 166 Mont. 319, 532 P.2d 686, and decisions from other jurisdictions based on similar or nearly identical fact situations.

We conclude that the outcome in this case is controlled by Halsey. In that case, defendant Uithof’s westbound truck was stalled on Highway 40 west of Browning, Montana. A second vehicle, which was eastbound, approached the stalled truck and waited for a third vehicle, which was westbound, to go around the truck. While waiting, the second vehicle was struck by a fourth vehicle which was also eastbound. After the collision between the fourth and second vehicles, a fifth vehicle, which was also eastbound, swerved into the westbound lane to avoid the other two vehicles, where it collided with the plaintiff, operating a sixth vehicle in a westerly direction.

The plaintiff sued the defendant, alleging that the presence of his stalled truck caused the plaintiff’s ultimate collision. Following a jury verdict for the defendant, the district court granted plaintiff a new trial. We reversed and concluded that the defendant should have been entitled to a directed verdict for the reason that the chain of causation between the defendant’s original act of negligence and the plaintiff’s collision and damages had been interrupted by the independent, intervening negligence of other persons.

We held that:

In determining whether the negligence in creating a hazard (the truck stalled on the highway) was a proximate cause of the accident, this test is to be applied: Did the wrongful act, in a natural continuous sequence of events, which might reasonably be expected to follow, produce the injury? If so, it is a concurring proximate cause of the injury even though the later negligent act of another (Walker and McWhirk) cooperated to cause it. On the other hand, if the latter’s act of negligence in causing the accident was of such a character as not reasonably to be expected to happen in the natural sequence of events, then such later act of negligence is the independent, intervening cause and therefore the sole proximate cause of the injury. Jimison v. United States, 267 F.Supp. 674; Sumner v. Amacher, 150 Mont. 544, 437 P.2d 630; DeVerniero v. Eby, 159 Mont. 146, 496 P.2d 290; Ford v. Rupple, 161 Mont. 56, 504 P.2d 686; Brandenburger v. Toyota Motor Sales, 162 Mont. 506, 513 P.2d 268; 30 St.Rep. 808.

Halsey, 532 P.2d at 328.

In applying the rule of “independent, intervening cause” in that case, we held that under those circumstances the chain of causation between the defendant’s act of negligence and the plaintiff’s damages had been broken as a matter of law.

We stated:

Applying Jimison here, appellant was not obliged to foresee or anticipate that either Walker or McWhirk would come over the hill at such speeds that they could not stop within the assured clear distance ahead of them. Neither was appellant obliged to foresee that Walker would continue over the hill without braking after seeing the reflector at the top and should have realized there might be trouble on the other side. All of this leads to the conviction that the district court should have granted appellant’s motion for a directed verdict at the close of respondent’s case-in-chief.

Halsey, 532 P.2d at 328.

We find that the only authority presented from other jurisdictions under circumstances similar to the facts in this case supports our conclusion. For example, in Williams v. Smith (N.C. 1984), 314 S.E.2d 279, the defendant was involved in a motor vehicle accident which was admittedly caused by his negligence. A police officer who investigated the accident was injured when struck by a third vehicle while directing traffic at the scene. The police officer then sued the defendant. However, the case was dismissed in the superior court by summary judgment. On appeal to the Court of Appeals of North Carolina, that court affirmed summary judgment for the defendant.

After citing rules of proximate cause and foreseeability similar to those previously established by this Court in this state (see Young v. Flathead County (1988), 232 Mont. 274, 757 P.2d 772; Kitchen Krafters v. Eastside Bank of Montana (1990), 242 Mont. 155, 789 P.2d 567; Thayer v. Hicks (1990), 243 Mont. 138, 793 P.2d 784), the North Carolina court reached the following conclusion:

The parties stipulated that the original accident was the result of the negligence of the defendant Ling, and his negligence was its proximate cause. The second collision, which involved plaintiff and the second defendant Smith, took place some twenty to forty-five minutes later while plaintiff was directing traffic. There was no unbroken connection between the negligent act of defendant Ling and plaintiff’s injury. The facts do not constitute a continuous succession of events, so linked together as to make a natural whole. Rather, Ling’s negligence was too remote and not foreseeable as such to constitute a proximate cause of plaintiff’s injury. Plaintiff was injured by an independent act of negligence on the part of defendant Smith, an intervening act which was not itself a consequence of defendant Ling’s original negligence, nor under the control of defendant Ling, nor foreseeable by him in the exercise of reasonable prevision. Therefore, plaintiff’s injurious consequence must be deemed too remote to constitute the basis of a cause of action against Ling.

Williams, 314 S.E.2d at 280.

For similar results under similar circumstances, see Haworth v. Mosher (10th Cir. 1968), 395 F.2d 566, and Lewis v. Esselman (Mo. 1976), 539 S.W.2d 581.

As in Halsey, the defendant in this case was not obliged to foresee or anticipate that the plaintiff would bring his vehicle to a nearly complete stop in the middle of the passing lane on Interstate 90, nor that Valerie Drapella would fail to notice the Gallagher vehicle with its flashing lights, the highway patrol vehicle with its twirling, flashing blue and red light, and the plaintiff’s vehicle which was directly in front of her on the highway and had been visible for a distance of one-half to one mile before she struck it. The defendant was not obliged to foresee that someone would arrive at the scene of his accident under those circumstances and be unaware of “where in the hell the idiot that she struck came from.”

Under the facts in this case, as applied to our previous case law, the acts of the plaintiff and the person who collided with him were independent, intervening causes of the plaintiff’s injury as a matter of law and the defendant was entitled to summary judgment.

The judgment of the District Court is, therefore, affirmed.

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


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    CRAZY FULLMOON EAGLE, Plaintiff and Appellant, v. RUSSIFF AUTO REPAIR, Defendant and Respondent.
    No. 92-273.
    Submitted on briefs Aug. 27, 1992.
    Decided Sep. 22, 1992.
    49 St.Rep. 836.
    838 P.2d 426.
    254 Mont. 422.

      For Appellant: Crazy FullMoon Eagle, Pro Se, Billings.
    For Respondent: James Hoban, Pro Se, Billings.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Thirteenth Judicial District, County of Yellowstone, the Honorable William J. Speare presiding. Appellant Crazy FullMoon Eagle (Eagle) appeals from an order dismissing his appeal from an adverse decision made by the Yellowstone County Justice Court, Small Claims Division. We affirm.

Eagle’s original complaint, filed in the Small Claims Division on September 16, 1991, alleged that respondent Russiff Auto Service (Russiff) had repaired Eagle’s Ford Bronco incorrectly, causing problems that ultimately destroyed the engine and forced him to buy a new one at a total cost of $850. Russiff counterclaimed for $102.75, which was the unpaid balance due from Eagle on Russiff’s invoice for parts and labor. After a hearing on October 9,1991, the justice of the peace, Pedro R. Hernandez, dismissed Eagle’s claim and entered judgment in favor of Russiff on its counterclaim. In “notations” following the order, Judge Hernandez found that Russiff did provide “correct service,” and that Eagle was the cause of further failure.

The Justice Court order was entered on January 2, 1992, and a copy was mailed to Eagle on the same day. Eagle filed notice of appeal to the District Court on January 22,1992. On March 17, Judge Speare dismissed the appeal because Eagle had not filed notice of appeal within ten days from entry of judgment, as required by § 25-35-803(1), MCA. Neither party was represented by counsel.

In a statement accompanying his notice of appeal to this Court, Eagle explained that he had not received notice of Judge Hernandez’s decision until January 21, 1992. At the time of the hearing, he said, he had no place to live and was staying with friends in Livingston and Billings. His mailbox is in Roundup because he used to live there. He stated:

I was able to get my mail during a three-day holiday (Martin Luther King Day), and when I received the decision from the judge, I filed the appeal the next day. The clerks at the Justice Court told me my appeal was late by three days. I explained my circumstance and they filed the appeal for me because of a showing of excusable neglect.... My filing of the appeal was immediate from the time I received it.

The file does not indicate whether Eagle’s notice of the judgment was mailed to his post office box in Roundup or to the address on Russiff’s countercomplaint, which listed Eagle’s address as 2023 9th Ave. N., Apt. 4, Billings. The Billings address appeared in a letter Eagle wrote to Russiff on September 4, 1991, explaining why he had stopped payment on his check for the balance due on Russiff’s repair invoice. At the end of the letter, Eagle requested a reply within ten days and added: “For communication purposes in this matter only, mail may be addressed c/o 2023 Ninth Avenue North, Apartment #4, Billings, MT 59101.” The address on Eagle’s opening brief for his District Court appeal, filed in Februaiy 1992, and on his brief for this appeal, filed in July, is “c/o 2715 Louise Lane, Billings, Montana.”

Section 25-35-803(1), MCA, requires that notice of appeal from the small claims division of a justice court be filed within ten days after entry of judgment. No statutory provision has been made for an extension of time to file notice of appeal to district court. Therefore the Justice Court in this case had no authority to extend the deadline, even under the extenuating circumstances Eagle presented.

Even if the Justice Court did have such authority, the District Court had no jurisdiction because the appeal did not address a question of law, as § 25-35-803(2), MCA, requires. Eagle’s brief merely reiterated the details of his engine trouble. It raised no legal issues, nor did it challenge the procedure followed in Justice Court.

AFFIRMED.

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


author: JUSTICE McDONOUGH

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. HOWARD THOMAS CAMPBELL, Defendant and Appellant.
    No. 92-096.
    Submitted on briefs July 23, 1992.
    Decided Sep. 28, 1992.
    49 St. Rep. 838.
    838 P.2d 427.
    254 Mont. 425.

      For Defendant and Appellant: David. E. Stenerson, Hamilton.
    For Plaintiff and Respondent: Marc Racicot, Attorney General, Carol E. Schmidt, Assistant Attorney General, Helena; Robert L. Deschamps III, County Attorney, Karen Townsend, Deputy County Attorney, Missoula.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from an order of the Fourth Judicial District Court, Missoula County, denying defendant’s motion to suppress evidence obtained in a search of defendant’s home on July 18, 1991. We affirm.

The issues before the Court are:

1. Whether the District Court erred in denying defendant’s motion to suppress; and

2. Whether the District Court should have required the State to release the identities of the informants.

The facts supporting the search warrant include: (1) On July 15, 1991, a reliable informant reported to Detective Fowlkes that another person had observed a marijuana growing operation in Howard Thomas Campbell (Thomas) and Christina Campbell’s bedroom at 2225 South 7th Street West within the last two weeks. The informant also said that Thomas was distributing cocaine in the Missoula area. (2) On that same day, Detective Jacobs confirmed that the consumers responsible for the power bills at 2225 South 7th Street West were Thomas and Christina Campbell. (3) On July 16, 1991, Detective Peterson obtained a description of the Campbell residence. (4) He also checked Narcotics intelligence files which revealed that: (a) On May 8, 1989, Larry Weatherman of the Missoula County Sheriff’s Office was informed by a confidential informant that Thomas was receiving cocaine from a person known in the area as a cocaine distributor, (b) Detective Eggett had responded to and confirmed a report on July 29, 1989, that Christina Campbell had received a gunshot wound. Initially, it was thought to be an accident but a rehable informant later stated that the shooting was intentional to prevent her from disclosing her husband’s drug problem, (c) A confidential informant told Detective Jacobs on August 16, 1990, that Thomas was distributing cocaine in the Missoula area and he could also obtain large quantities of marijuana. He also reported that Thomas had two vicious pit-bull type dogs, (d) Detectives Lewis and Jacobs responded to a call from the landlord on September 10, 1990, to investigate the residence at 2345 West Kent, Thomas’ former rental house. An inspection of the residence uncovered the remains of an abandoned marijuana growing operation, including one-eighth ounce of marijuana and marijuana stems. The former landlord also reported that Thomas had 3 pit-bull dogs and had “beware of dog” signs posted on the property. (5) Finally, Detective Peterson obtained an investigative subpoena to review the power usage records for 2225 South 7th West. The analysis revealed that Thomas’ power usage fell within the normal range from November 1990 through April 1991 but increased dramatically in May of 1991 even though the natural gas consumption had decreased considerably. (The large increase actually occurred in June 1991, not May, but this error was later corrected.)

The search warrant application was granted on July 16,1991 and the search on July 18 disclosed marijuana, marijuana plants, literature on growing marijuana, marijuana paraphernalia and plant food. The defendant was charged with criminal possession of dangerous drugs and criminal possession of drug paraphernalia.

Thomas filed a motion to suppress the evidence recovered in the search. The search warrant was upheld by the District Court and after final judgment this appeal by the defendant followed.

I

The core question is the sufficiency of the application for a search warrant. “To address the issue of probable cause for issuance of a warrant, this Court has adopted the ‘totality of the circumstances’ test set forth in Illinois v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527.” State v. Crowder (1991), 248 Mont. 169, 173, 810 P.2d 299, 302. “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. O’Neill (1984), 208 Mont. 386, 394, 679 P.2d 760, 764. “[T]he duty of the reviewing court is to ensure the magistrate had a ‘substantial basis’ for conclud[ing] that probable cause existed.” Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332, 76 L.Ed.2d. at 548. See Crowder, 810 P.2d at 302. “The magistrate’s determination of probable cause should be paid great deference by reviewing courts.” State v. Sundberg (1988), 235 Mont. 115, 123, 765 P.2d 736, 741. “Our function is not to review de novo the magistrate’s determination that probable cause existed justifying the issuance of a search warrant.” State v. Baldwin (1990), 242 Mont. 176, 183, 789 P.2d 1215, 1220.

This case is illustrative of the classic Gates totality of the circumstances test. It also meets previous established tests. Some of the factors at issue here are of little probative value alone but taken together, under the Gates test, there is substantial evidence to conclude that probable cause existed to issue the search warrant.

The early “tips”, provided by the confidential informants, claimed that Thomas was involved in obtaining and distributing drugs such as cocaine and marijuana. These tips, by themselves, are of questionable probative value and would be “stale” without more.

Where the affidavit recites a mere isolated violation it would not be unreasonable to imply that probable cause dwindles rather quickly with the passage of time. However, where the affidavit properly recites facts indicating activity of a protracted and continuous nature, a course of conduct, the passage of time becomes less significant.

O’Neill, 679 P.2d at 765.

Together with the current tip from a reliable informant, the earlier tips have greater force. See State v. Walston (1989), 236 Mont. 218, 222-23, 768 P.2d 1387, 1390. (Also of note is the fact that Detective Fowlkes stated on the warrant that the current informant was reliable because he had given reliable information in the past.) These tips together support an argument that the defendant was involved in on-going criminal activity. See Crowder, 810 P.2d at 303.

Other factors add to the weight of the argument that the magistrate had probable cause to issue a search warrant. The evidence of a marijuana growing operation in Thomas’ former residence, which was covered with warnings about his dogs, further adds to the probability that Thomas was involved in criminal activity. The dramatic increase in power consumption in June of 1991 adds some value to the State’s case. Moreover, the shooting incident, in conjunction with other facts, increased the probability that the defendant was growing marijuana. All the facts contained in the search warrant, in their totality, combine to provide a substantial basis to conclude that probable cause existed to issue a search warrant.

II

Defendant contends that the District Court erred in denying his motion to disclose the identity of the informants. He insists that the State did not meet its burden of showing the need for nondisclosure. The State, however, argues that the District Court order was correct because the defendant made only bald assertions about the informants and why they were unreliable. Also, the State asserts that the defendant did not meet his burden of demonstrating that his need to know the identities of the informants outweighed the State’s privilege of nondisclosure.

The State has the privilege to refuse to disclose the name of an informer in a case under certain circumstances. Rule 502, M.R.Evid., and § 46-15-324(3), MCA.

Rule 502, M.R.Evid., provides that:

Rule 502. Identity of informer.
(a) Rule of privilege. The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law.
(c) Exceptions and limitations.
(1) Voluntary disclosure; informer a witness. No privilege exists under this rule if the identity of the informer or the informer’s interest in the subject matter of the informer’s communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer’s own action, or if the informer appears as a witness for the public entity.

Workingin conjunction with Rule 502, M.R.Evid., is § 46-15-324(3), MCA (1989), which states:

(3) Disclosure of the existence of an informant or of the identity of an informant who will not be called to testify is not required if:
(a) disclosure would result in substantial risk to the informant or to his operational effectiveness; and
(b) the failure to disclose will not infringe the constitutional rights of the accused.

“The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.” Roviaro v. U.S. (1957), 353 U.S. 53, 59, 77 S.Ct. 623, 1 L.Ed.2d 639.

In order to claim the privilege, the State must meet a balancing test adopted by the Montana Supreme Court from Roviaro. State v. Babella (1989), 237 Mont. 311, 772 P.2d 875. This test:

[C]alls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

Babella, 772 P.2d at 876. “In this balancing test the burden is on the defendant to show the need for disclosure, and this need must be one which overrides the government’s interest. Mere speculation will not suffice.” Babella, 772 P.2d at 878 (emphasis added).

In the instant case, the defendant contends that the chief informant made sexual advances toward his wife, Christina which were rejected and he has had several altercations with the defendant. The defendant claims that he was able to determine the identity of this informer after he had entered his pleas. He further claims that if he had known the identity of the informant earlier, a simple hearing would have established that the information that was reported to the authorities was erroneous. He also states that another informant had made sexual advances toward his daughter, giving that informant a reason for a vendetta against the defendant.

However, the defendant provides no facts to support his statement that two of the informants have a reason to falsify information about his activities, thereby violating his constitutional rights. He makes a bare assertion that these informants made sexual advances toward his wife and daughter. No affidavits containing factual information about these situations were presented by the defense. The defendant must produce something more concrete than conclusory statements about confidential informants and the information they provide. The defendant has introduced no evidence to show that his constitutional rights will be violated by the State’s failure to disclose the identities of the informants nor made any showing that he needs the identities of the informants in order to establish an adequate defense. In conclusion, the defendant submits no set of facts which would tip the balance in his favor under the Roviaro test.

The District Court correctly concluded that the magistrate had a substantial basis upon which to issue the search warrant and that the identity of the informers should not be disclosed.

Affirmed.

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


author: JUSTICE HUNT CHIEF JUSTICE TURNAGE

text:
    JOHN R. MURRAY and JUDITH R. MURRAY, husband and wife, ERIK F. NEVA and LAURA L. NEVA, husband and wife, and C. GENE ENDRESEN and ARDYCE E.ENDRESEN, husband and wife, Plaintiffs and Appellants, v. COUNTRYMAN CREEK RANCH, a limited partnership, CHARLES J. HERINGER, JR., RICHARD C. HOEFLE, and DONALD E. DuBEAU, Defendants and Respondents.
    No. 91-600.
    Submitted on briefs Apr. 23, 1992.
    Decided Sep. 29, 1992.
    49 St.Rep. 854.
    838 P.2d 431.
    254 Mont. 432.

      For Plaintiffs and Appellants: Bruce E. Lee, Billings.
    For Defendants and Respondents: Robert Edd. Lee, Crowley, Haughey, Hanson, Toole & Dietrich, Billings.
   JUSTICE HUNT

delivered the opinion of the Court.

This is an appeal from an order of the Thirteenth Judicial District Court, Stillwater County, ruling that appellants’ “equitable” easement claim is barred by laches. We affirm.

Appellants raise only the “equitable” easement question for this Court to consider, however we find the following issue raised by respondents to be dispositive.

Is appellants’ claim for an “equitable” easement through Tract 143 barred by laches?

In 1972, respondents, Charles J. Heringer, Jr., Richard C. Hoefle, and Donald E. Dubeau formed a limited partnership known as the Countryman Creek Ranch (hereinafter “partnership”). Sometime in 1970, Heringer became aware of a 2025 acre ranch situated south of the Yellowstone River and a few miles west of Columbus which was being offered for sale. Heringer and Hoefle ultimately purchased the ranch with the intention of developing it for resale as recreational homesites.

In 1972, the partnership employed the Bud Hansen Agency for an initial sales campaign during that summer. In the beginning of the year, the layout, engineering, and legal work was well underway. Sales information packets were assembled and closing document forms were printed. Throughout the early period from 1970 to 1972, several developments were considered. The final scheme called for the land to be subdivided into 141 residential tracts, with each tract containing at least 10 acres.

The initial sales campaign began by June 1972. Dubeau, a general manager of the project, was also at that time a principal in the Bud Hansen Agency, a real estate broker operation out of Billings, Montana. Through DuBeau’s activities for the partnership, Bud Hansen Sales’ representatives negotiated and closed sales with tract buyers. A sales office was opened in an existing ranch house on the partnership ranch land one-half mile from the Yellowstone River. Diagrammatic maps and aerial photographs were placed on the walls of the sales office and reduced for distribution to prospective buyers to aid in location of the tracts being offered for sale.

The subdivision was subjected to certain use restrictions defined by the declaration of covenants and restrictions, which together with the certificate of survey plat, were filed with the Clerk and Recorder of Stillwater County on July 7,1972. The recorded plat and covenants were expressly referenced in all contracts for sale and warranty deeds for all purchasers of tracts at the Countryman Creek Ranch development, including the appellants. One of the first sales went to appellants C. Gene and Ardyce E. Endresen. On September 8, 1972, the Endresens received a warranty deed conveying Tract 88. In May 1973, appellant John R. Murray purchased Tract 62.

In the late 1970s, the Countryman Creek Ranch Homeowners Association (hereinafter “association”) was formed. This was a nonprofit corporation formed to carry out operational activities for all tract owners. Platted Tract 142 was designated on the maps as “recreation area” land and was immediately deeded by the partnership to the association and held in common for the association. The recreational land was to be managed for use of all tract owners by the association as “common area” pursuant to the declaration of covenants and restrictions as soon as sufficient tracts had been sold to activate the association. The partnership retained ownership of adjacent “ranch land” platted as Tract 143 along the river bottom, which the partnership continued to farm, and across which the association was granted an express right-of-way for traverse and for access along the bank of the Yellowstone River.

The original declaration of covenants was amended on two occasions. The first amendment to the declaration of covenants concerned changes with respect to grazing and was signed by appellants on April 9, 1979. The second amendment concerned a sale of some ranch buildings located on Tract 143. Apparently, this sale created some confusion between the association and the partnership because the land sold was originally intended to be a recreational complex for the subdivision. As a result, an agreement was reached between the partnership and the association. The land would be sold in exchange for it being bound by the declaration of covenants and for some adjacent property to be deeded over to the association for recreational purposes. This second amendment was intended to clear up any confusion as to what was common area land and what was ranch land. Appellants John R. Murray and C. Gene Endresen signed the amended declaration of covenants on May 10,1983.

Appellants believed that they had acquired certain recreational rights on or over the ranch land of the partnership similar to those enjoyed in the “common area.” On November 14, 1980, they filed a complaint against the partnership with the Montana Realty Board. The Montana Realty Board cleared the partnership of any wrong doing.

In 1988, the partnership subdivided a river front “ranchette” from a portion of Tract 143 and sold it to Wayne Schile, a person who is not part of this action. Schile placed a fence around his “ranchette” and limited tract owners to a 50-foot river bank easement described in the declaration of covenants. This sparked a long-smoldering resentment of the appellants who, since 1980, had argued with the partnership over their understanding concerning the ranch land.

In 1989, appellants filed their claim in District Court. The case was originally scheduled as a jury trial. Prior to trial, the District Court bifurcated the cause and set the matter for hearing before the court, without a jury, on what were perceived to be equitable issues. Appellants Nevas’ claim was severed from the other appellants because the Nevas had not purchased their property directly from respondents.

On May 2,1991, the District Court entered its findings of fact and conclusions of law, finding that appellants did not have an “equitable” easement for common use and enjoyment of the lands in question. The court held that no implied covenant of good faith and fair dealing existed, and with regard to a contract claim for recreational improvements, the court awarded appellants the return of ten percent of their purchase price of their lots. Appellants’ appeal is limited to the easement question.

The only question we need to discuss is whether appellants’ claim for an “equitable” easement through Tract 143 is barred by the equitable doctrine of laches.

Respondents contend that by at least 1980 there was not an easement of any nature or any other intangible undefined rights over partnership ranch land when the partnership changed its ownership maps to preclude any implication that the partnership ranch land was to be included as recreation or common area, and therefore, the doctrine of laches applies.

We have previously stated that:

Laches exists where there has been an unexplainable delay of such duration or character as to render the enforcement of an asserted right inequitable, and is appropriate when a party is actually or presumptively aware of his rights but fails to act.

Larson v. Undem (1990), 246 Mont. 336, 340, 805 P.2d 1318, 1321.

The appropriate time to apply laches to a certain set of facts can be evaluated by an analogy to the equivalent statute of limitations:

Under ordinary circumstances, a suit in equity will not be stayed for laches before, and will be stayed after, the time fixed by the analogous statute, but if unusual conditions or extraordinary circumstances make it inequitable to allow the prosecution of a suit after a briefer, or to forbid its maintenance after a longer, period than that fixed by the analogous statute, a court of equity will not be bound by the statute, but will determine the extraordinary case in accordance with the equities which condition it. When a suit is brought within the time fixed by the analogous statute, the burden is on the defendant to show, either from the face of the complaint or by his answer, that extraordinary circumstances exist which require the application of the doctrine of laches. On the other hand, when the suit is brought after the statutory time has elapsed, the burden is on the complainant to aver and prove circumstances making it inequitable to apply laches to his case.

Brabender v. Kit Manufacturing Co. (1977), 174 Mont. 63, 68-69, 568 P.2d 547, 550 (quoting Shell v. Strong (10th Cir. 1945), 151 F.2d 909, 911).

In this instance, appellants stipulated that they had known of their rights prior to this action but did not enforce them. In 1980, the partnership changed its ownership maps to preclude any implication that the partnership ranch land was to be included as recreation or common area. The maps clearly distinguish between Tract 142 (common area) retained by the association and Tract 143 (ranch land) retained by the partnership. It was the recording of the common area deed to the association and the allocation of farm lease proceeds between the association and the partnership, based upon their respective ownerships, as well as the change in the maps to show the distinction, which gave rise to the 1980 complaint with the Montana Board of Realty.

These actions placed the appellants on notice since 1980 that there was not an easement of any nature or any other intangible undefined rights over partnership lands. Appellants admittedly knew of their rights for nine years and failed to exercise them. Without determining that an “equitable” easement exists, we hold that appellants’ claim for an “equitable” easement is barred by laches.

We affirm the District Court.

JUSTICES GRAY, McDONOUGH and TRIEWEILER concur.

CHIEF JUSTICE TURNAGE

specially concurring:

I concur with the result in this opinion. I would like to make it clear that the Court has not indicated that there is such a legal theory as “equitable easement.”

Such a theory does not exist in Montana law and certainly should not be considered as possibly existing because of any statements in this opinion.


author: Justice Trieweiler

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOSEPH ALLEN HOWELL, Defendant and Appellant.
    No. 91-559.
    Submitted on briefs Apr. 2, 1992.
    Decided Aug. 24, 1992.
    Rehearing Denied Nov. 16, 1992.
    49 St.Rep. 759.
    839 P.2d 87.
    254 Mont. 438.

      For Defendant and Appellant: James A- Haynes, Hamilton.
    For Plaintiff and Respondent: Marc Racicot, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena; George H. Com, Ravalli County Attorney, Hamilton.
   Justice Trieweiler

delivered the opinion of the Court.

Defendant appeals from his conviction on May 6, 1991, of the crimes of sexual intercourse without consent, sexual assault, and indecent exposure committed upon T.S., a nine-year-old girl, between December 25, 1990, and February 7, 1991. Following a jury trial in the Fourth Judicial District Court of Ravalli County, defendant was sentenced to a total of 60 years in the Montana State Prison without benefit of parole. An amended judgment was entered on November 20,1991. The District Corut denied defendant’s motion for a new trial. The Defendant appeals. We affirm.

The issues are:

1. Did the District Court erroneously instruct the jury that it could consider evidence of defendant’s other crimes as proof of a “continuous pattern of conduct” under Rule 404(b), M.R.Evid.?

2. Did the District Corut err by excluding the victim’s past sexual history under the rape shield statute, § 45-5-511, MCA?

3. Did the District Court err in instructing the jury that the charges were distinct offenses to be determined separately, rather than as lesser included offenses?

4. Does sufficient evidence support the jury verdict?

The State’s amended information charged defendant with committing the offenses of which he was convicted on or between December 25, 1990, and February 7, 1991. The defendant filed a partial alibi defense notice because he was in California visiting his mother from the week before Christmas until the first week of January 1991.

On April 16, 1991, the State filed a notice of intent to introduce evidence of other crimes, wrongs or acts in order to support proof “on the issue of the Defendant’s identity, intent, state of mind, and that the Defendant’s acts were consistent with continuous conduct, a common scheme, plan, or system.” The notice stated its intent to introduce two prior convictions involving female minors for sexual assault and sexual intercourse without consent occurring in 1976 and 1978. The notice also specified the intent to use defendant’s admissions to prison officials during psychological evaluations for parole in which he gave detailed accounts of numerous sexual assaults of female minors similar to the acts charged in this case.

In response, defendant filed a motion in limine to bar introduction of prior acts evidence. Prior to trial, the District Court held a hearing on the motion and acts was introduced, the District Court gave the following cautionary instruction:

The State will now offer or has offered evidence that the defendant at another time engaged in other crimes, wrongs and acts. That evidence was not admitted to prove the character of the defendant in order to show he acted in conformity therewith.
The only purpose of admitting that evidence was to show either proof of the defendant’s motive in this case; or proof of opportunity; or proof of the Defendant’s intent; or proof that the crimes were committed knowingly; or proof of the defendant’s identity; or proof of absence of a mistake or accident; or proof of a continuous pattern of conduct. You may not use that evidence for any other purpose.
The defendant is not being tried for these other crimes, wrongs or acts. He may not be convicted for any other offense than that charged in this case. For the jury to convict the defendant of any other offense than that charged in this case may result in unjust double punishment of the defendant. [Emphasis added.]

Jury Instruction No. 6. Defendant objected to that part of the instruction which permitted consideration of prior acts for “proof of a continuous pattern of conduct.”

Prior to trial the court also considered the State’s motion in limine to exclude evidence of the victim’s prior sexual conduct pursuant to the rape shield statute, § 45-5-511, MCA. Defendant objected to the exclusion because he wanted to introduce evidence of past sexual abuse by her natural father to show: veracity, accuracy of recall, prior knowledge of sexual terms such as “dick,” and recognition of semen, tendency or opportunity to fabricate or exaggerate, and to rebut the State’s “lost innocence” argument. The District Court granted the State’s motion to exclude evidence of the prior sexual abuse and did not rule on defendant’s motion for reconsideration. Defendant filed a notice of his intention to challenge the constitutionality of § 45-5-511, MCA.

The District Court also granted defendant’s pretrial motion to prohibit any treating physician, therapist, psychologist, teacher, or social worker from testifying about the identification of the defendant, and also the reliability or credibility of the victim. However, the court reserved a ruling to allow such testimony in case the victim’s credibility was attacked.

Defendant stipulated to the fact that he was incarcerated in either the State Hospital at Warm Springs or the Montana State Prison from August 2, 1978, to June 8, 1989. Testimony at trial established that after his discharge, he moved to an apartment in Corvallis, a short distance from an elementary school. Defendant’s neighbor contacted the police in January 1991 after he observed T.S. entering defendant’s apartment on two occasions. He reported that after she entered the apartment, the window blinds were drawn and the music turned up. Deputy Sterling Maus responded to the report by visiting with T.S. and her mother. Maus testified that T.S. told him that defendant touched her pubic area. Deputy Pat Richie, who continued the investigation, testified that T.S. described one incident of oral intercourse, which occurred on February 8, 1991.

Defendant moved to dismiss the sexual intercourse without consent charge, based on Deputy Richie’s testimony that the only incident of oral intercourse reported occurred on February 8, 1991, and therefore, was outside the charging dates of December 25, 1990 through February 7, 1991. The District Court denied the motion.

T.S. is an emotionally underdeveloped nine-year-old girl who was assigned three school counselors to address her needs. T.S. testified that beginning in the fall of 1990, at defendant’s request, she would go to his apartment almost daily where he would remove her clothing, strap her to the bed, unzip his pants, and rub his penis against her vagina. On occasion she said he would masturbate on her, or force her to perform oral sex. She said that defendant would close the blinds and put on music. She stated that defendant gave her candy or money and left her notes. T.S.’s parents found a note written before Christmas stating:

Say how would you like to make twenty dollars. Don’t let anybody see this, this is between you and I. Don’t talk to anyone about this note. Don’t let anyone see it. OK

After comparing the note to a handwriting exemplar from defendant, a handwriting expert identified the handwriting as that of the defendant.

Brad Fowler testified that he hauled water from defendant’s apartment every evening around 5:00 to 5:30 during the last week in January and that he never saw T.S. present, although once defendant mentioned to Fowler that T.S. would be walking by at that time. Defendant also admitted to Fowler that he had given T.S. candy and money. Kathy Ostrander, supervisor for the Department of Family Services for Ravalli County, stated that Fowler told her that one time when he was over at defendant’s getting water he was asked to leave because the defendant expected T.S. to arrive soon. Fowler testified that defendant asked him not to come over from 5:00 to 5:30 because he liked to relax after work.

At the close of evidence, defendant objected to the State’s proposed Instruction No. 14 stating that the offenses charged were then denied it. Prior to each occasion on which evidence of prior distinct offenses to be determined separately by the jury. The District Court adopted No. 14 and rejected defendant’s proposed Instruction No. 1 which provided that the charges were not separate, but alternative charges, so that if defendant was found guilty, then the jury must determine which one of the three charges was committed, and find him not guilty of the other charges.

After considering all the facts, the jury found defendant guilty of all three separate charges. The District Court denied his motion for a new trial. Defendant appeals.

I

Did the District Court erroneously instruct the jury that it could consider evidence of defendant’s other crimes as proof of a “continuous pattern of conduct” under Rule 404(b), M.R.Evid.?

Defendant contends that the procedural protections under Just were violated. These protections are:

(a) Evidence of other crimes may not be received unless there has been written notice to the defendant that such evidence is to be introduced .... Additionally, the notice to the defendant shall include a statement as to the purposes for which such evidence is to be admitted.
(b) At the time of the introduction of such evidence, the trial court shall explain to the jury the purpose of such evidence and shall admonish it to weigh the evidence only for such purposes.
(c) In its final charge, the court should instruct the jury in unequivocal terms that such evidence was received only for the limited purposes earlier stated and that the defendant is not being tried and may not be convicted for any offense except that charged, warning them that to convict for other offenses may result in unjust double punishment.

State v. Just (1979), 184 Mont. 262, 274, 602 P.2d 957, 963-64.

A. Improper Notice: The defendant maintains that the first Just procedure was not properly followed because the State’s notice of intent to introduce evidence of other crimes failed to show any logical relationship between the prior acts and any purpose under Rule 404(b). This argument is based on our recent decision in State v. Croteau (1991), 248 Mont. 403, 812 P.2d 1251, which requires the State to specifically state in the notice the relevant purpose for admitting the prior acts. Under Croteau, “shotgun” approaches merely listing all the 404(b) purposes are prohibited. Croteau, 812 P.2d at 1255.

The record does not reflect a specific objection to an overly broad or “shotgun” type of notice. Under § 46-20-104(2), MCA, defendant’s failure to make a specific objection to the adequacy of the notice waived any deficiency in the notice.

B. Improper Jury Instruction: Defendant also contends that the procedural protections under Just were violated because the phrase “continuing course of conduct” was included in the jury instructions. We emphasize that defendant only appeals the jury instruction language, and not the admissibility of the prior acts. Thus, we will not address whether “continuing course of conduct” constitutes a 404(b) exception. Rather, we will only determine whether the District Court erred by including the phrase in the jury instructions. First we will determine whether the language is erroneous. If it is erroneous, then we will determine whether it was prejudicial.

The phrase “continuing course of conduct” has never been specifically approved for use in a jury instruction. However, it has been used interchangeably with several of the Just requirements. Most cases use the phrase in consideration of remoteness under the second prong of Just. State v. Paulson (1991), 250 Mont. 32, 817 P.2d P.2d 1137; State v. Hanson (1980), 187 Mont. 91, 608 P.2d 1083; State v. Tecca (1986), 220 Mont. 168, 714 P.2d 136; State v. Gambrel (1990), 246 Mont. 84, 803 P.2d 1071.

Other cases use the phrase when discussing the third prong’s “common scheme or plan”:

“In this case the other acts proved show a continuous pattern of behavior on the part of the defendant for a period of over 3 years. The pattern during that period remained virtually the same. This is precisely what is meant by common scheme, plan or system.” [Emphasis added.]

Just, 602 P.2d at 961 (quoting State v. Jensen (1969), 153 Mont. 233, 239, 455 P.2d 631, 634).

Further, the purpose of the evidence under attack on this appeal was offered to show “plan, motive, scheme, design, a common course of conduct...” [Emphasis added.]

Just, 602 P.2d at 962. The phrase also appears in connection with other purposes under the third prong such as opportunity, intent, and identity.

While defendant was likely prejudiced to a certain degree, we cannot say as a matter of law that such prejudice clearly outweighed the probative value of this evidence. The prior acts evidence established a continuing course of conduct by defendant and aided in determining opportunity, intent, and identity. [Emphasis added.]

Tecca, 714 P.2d at 139.

In State v. Gilpin (1988), 232 Mont. 56, 756 P.2d 445, we referred to the phrase as “surplusage.” Likewise, we hold that in this case the phrase “continuous course of conduct” is superfluous language that was improperly included in the jury instruction. However, jury instruction errors which do not affect substantial rights of the defendant should be disregarded. State v. Wurtz (1981), 195 Mont. 226, 636 P.2d 246 (overruled on other grounds in State v. Lance (1986), 222 Mont. 92, 721 P.2d 1258). Here, it is difficult to conclude that if the evidence itself was properly admitted, defendant’s substantial rights were affected by this “surplus” language in the cautionary instructions.

We hold that the phrase “continuing course of conduct” is superfluous language, improperly included in the jury instruction. However, because the instruction was not prejudicial, it constitutes harmless error. However, this language should not be used in future instructions.

II

Did the District Court err by excluding the victim’s past sexual history under the rape shield statute, § 45-5-511, MCA?

The defendant challenges the constitutionality of the rape shield statute on the basis that it violates his right to confrontation under the Sixth and Fourteenth Amendments of the United State Constitution, and under Article II, §§ 17 and 24, of the Montana Constitution. If the statute is upheld, the standard of review for its application is manifest abuse of discretion. State v. Van Dyken (1990), 242 Mont. 415, 435, 791 P.2d 1350, 1362-63.

The Sixth Amendment is not absolute, and “may bow to accommodate other legitimate interests in the criminal trial process.” Chambers v. Mississippi (1973), 410 U.S. 284, 295, 93 S. Ct. 1038, 1046, 35 L. Ed. 2d 297, 309. The rape shield statute has been upheld as a legitimate interest justifying curtailment of the constitutional right to confront witnesses. State v. Van Pelt (1991), 247 Mont. 99, 805 P.2d 549.

[A] defendant’s right to cross-examine the complaining witness in a sexual offense case would be constricted “where there is evidence of prior false accusations.”
... Furthermore, evidence of prior charges which have not been adjudicated to be true or false; i.e., which may be true or false is also inadmissible, primarily because its introduction circumvents the interest in preserving the integrity of the trial and preventing it from becoming a trial of the victim .... These limitations do not infringe upon a defendant’s right to confrontation.”

Van Pelt, 805 P.2d at 552-53 (quoting State v. Anderson (1984), 211 Mont. 272, 284-85, 686 P.2d 193, 200). Defendant contends that he was denied the opportunity to establish the victim’s lack of veracity, accuracy, and her tendency to exaggerate. Defendant also claims he was denied the opportunity to refute the State’s “lost innocence” argument by showing that T.S.’s previous sexual abuse allowed her to become familiar with terms such as “dick.”

The record shows that the District Court fully considered the matter before determining there was no merit to defendant’s argument. None of the statutory exceptions to the rape shield statute, § 45-5-511, MCA, are met in this case. No statutory exception exists allowing the admission of the prior sexual history of a child molestation victim. We decline to create one. Under the statute we have affirmed the exclusion of evidence of a victim’s sexual abuse by her father. State v. Kao (1990), 245 Mont. 263, 800 P.2d 714; Van Pelt, 805 P.2d 549. We find no evidence supporting the contention that the District Court abused its discretion. We hold that the District Court properly excluded the past sexual history of the victim in this case.

Ill

Did the District Court err when it instructed the jury that the charges were distinct offenses to be determined separately, rather than as lesser included offenses?

Defendant argues that the District Court erred by not adopting his proposed Instruction No. 1:

These charges allege that the defendant committed an unlawful act which constitutes either the crime of Sexual Assault, and [sic] Sexual Intercourse Without Consent, or the crime of Indecent Exposure. If you find that the Defendant committed an act or acts constituting one of the crimes so charged, you then must determine which of the offenses so charged was thereby committed.
In order to find the defendant guilty you must all agree as to the particular offense committed and, if you find the defendant guilty of one of such offenses, you must find him not guilty of the others.

Defendant asserts that this proposed instruction should have been given because defendant’s conduct occurred outside the charging dates stated in the information, and the information lacked specificity regarding the time and place of the offense pursuant to § 46-11-401(1), MCA. However, there was no objection to the adequacy of the notice provided in the information. Therefore, any inadequacy was waived. Section 46-13-101, MCA. Furthermore, as discussed later in this opinion, there was sufficient evidence of conduct within the time period alleged to sustain conviction for separate offenses.

Defendant also contends that the District Court erred by failing to instruct the jury on lesser included offenses. However, no instruction on lesser included offenses was requested, and therefore, such an instruction was waived. State v. Sheppard (Mont. 1992), [253 Mont. 118,] 832 P.2d 370, 49 St. Rep. 382 (corut not required to give lesser included offense instruction sua sponte, if counsel fails to request it).

IV

Does sufficient evidence support the jury verdict?

The standard of review for sufficiency of evidence is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt when viewed in the light most favorable to the prosecution. Paulson, 817 P.2d at 1146; State v. Moreno (1990), 241 Mont. 359, 787 P.2d 334.

Ample evidence supports the verdict. The evidence establishes the elements of each individual charge. The indecent exposure charge was established when T.S. testified that defendant “unzipped his pants and took his privates out,” and that “white stuff squirted at me.” The sexual assault charge is established by T.S.’s explanation that defendant put his private parts on her private parts, and her statement that “[h]e’d take me to his room and strap me to the bed and start doing what moms and dads do.” She also testified that he touched her genital area in her parents’ home. T.S.’s testimony that defendant made her lick his private part, put it in her mouth, and pressed down on her head, provides a graphic description of oral intercourse which is the basis for the sexual intercourse without consent charge.

Defendant contends, however, that uncorroborated testimony is insufficient to support a conviction. Defendant points to the lack of corroborating medical or school testimony. We have held that expert testimony is not necessary to prove sexual assault of children. Gilpin, 756 P.2d at 451. Moreover, we also held that the testimony of a child victim does not need to be corroborated. Gilpin, 756 P.2d at 453.

Nonetheless, the handwritten note, and the testimony of the neighbor, the handwriting expert, and the police officers support the verdict. After reviewing the record, we hold that the evidence was sufficient to support a guilty verdict on each separate charge.

The judgment of the District Court is affirmed.

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


author: JUSTICE WEBER

text:
    IN THE MATTER OF INQUIRY INTO B.T.B. AND B.B., Youths in Need of Care.
    No. 91-623.
    Submitted on briefs June 26, 1992.
    Decided July 7, 1992.
    49 St.Rep. 594.
    840 P.2d 558.
    254 Mont. 449.

      For Appellant: Vincent J. Kozakiewicz, Dillon.
    For Respondent: Marc Racicot, Attorney General, Patricia J. Jordan, Assistant Attorney General, Helena; J. Allen Bradshaw, Granite County Attorney, Philipsburg; Conde F. Mackay, Anaconda.
   JUSTICE WEBER

delivered the Opinion of the Court.

The Third Judicial District Court, Granite County, terminated the parental rights of Darin and Dana Blackburn, the natural parents of B.T.B. and B.B. Darin Blackburn has not contested the termination of his parental rights. Dana Blackburn appeals. We affirm.

Ms. Blackburn raises the following issues for our review:

1. Did the District Court properly terminate Ms. Blackburn’s parental rights?

2. Did the guardian ad litem properly protect the rights of the children?

A hearing on the termination of custody was held in August 1991. Vicki Weida and Sharon Sherd, social workers with the State of Montana, Department of Family Services (DFS) testified on behalf of the State. The record reveals that the DFS became involved with the Blackburn family in March 1988. At that time, Dana Blackburn was convicted of endangering the welfare of her three-year-old son B.T.B. when B.T.B. was found wandering alone in Drummond, Montana. As a condition of her sentence, the court required Ms. Blackburn to attend DFS parenting classes. She failed to attend these classes and missed monthly appointments with the DFS case worker.

Ms. Weida testified that in May 1989, the DFS received additional referrals relating to domestic violence, alcohol abuse and continuing neglect of B.T.B. within the Blackburn home. Based on this information, the District Court granted the DFS temporary investigative authority (TIA), and ordered the Blackburns to abstain from alcohol, undergo psychological and chemical dependency evaluation, and complete marriage counseling. The Blackburns failed to comply with the corut order. In November 1989, the Blackburns’ second child B.B. was bom.

On June 5,1990, the District Court granted temporary custody of B.T.B. and B.B. to the DFS who placed the children in foster care. The court also approved a treatment plan requiring the parents abstain from alcohol, undergo chemical dependency treatment, and attend marital and family counseling. Initially, the Blackburns complied with the plan. As a result of this progress, the DFS returned the children to the Blackburn home in December 1990.

Ms. Weida testified that in February 1991, the DFS was forced to take the children into protective custody after the Blackburns failed to pick up their children from the babysitter. Neither parent contacted the DFS regarding the whereabouts of the children for over twenty-four hours. The children were once again placed in foster care. At that time, both Dana and Darin Blackburn had resumed drinking alcohol, discontinued aftercare treatment for chemical abuse and missed scheduled appointments for marital counseling and family counseling with B.T.B. In addition the DFS received reports of domestic violence, Darin Blackburn was convicted of second offense DUI, and Dana was convicted of two counts of disorderly conduct. All these incidents were alcohol related.

In March 1991, the Blackburns appeared to be separated. As a result, the court approved a treatment plan addressing the needs of each parent. Ms. Weida reviewed the plan with the Blackburns and obtained medicaid assistance for the necessary counseling. She testified that the purpose of the agreement was to reunite the family. However, subsequent to the adoption of the second treatment plan, the Blackburns continued their pattern of noncompliance. Individually, and collectively, they missed counseling appointments as well as scheduled visitation with the children.

In May 1991, after working with the Blackburns for three years, the DFS filed to terminate Darin and Dana Blackburn’s parental rights in order to provide stability for the children. At the termination hearing on August 6,1991, Ms. Weida and Ms. Sherd testified that it was in the best interest of the children to terminate the parental rights of Dana and Darin Blackburn. They further testified that B.T.B. was depressed and required counseling and special education due to lack of emotional stability. B.B. had bonded well with her foster mother, but needed permanence. Finally, the prospects of placing the children in adoptive homes offering permanence and stability was high. On October 10,1991, the District Court terminated the parental rights of Dana and Darin Blackburn with regards to B.T.B. and B.B., their minor children.

I

Did the District Court properly terminate Ms. Blackburn’s parental rights?

In order for the court to terminate Ms. Blackburn’s parental rights the State must meet the statutory criteria of § 41-3-609, MCA. Section 41-3-609, MCA, allows termination of parental rights if the children are adjudicated youths in need of care, the parents have either failed to comply with the court approved treatment plan or the plan is unsuccessful, and the conduct or condition rendering the parents unfit is unlikely to change within a reasonable time. Further, the State must present clear and convincing evidence that these statutory criteria have been met. In the Matter of A. W. and A. V. (1991), 247 Mont. 268, 806 P.2d 520.

Ms. Blackburn contends that the State failed to present clear and convincing evidence that Dana failed to comply with the second treatment plan.

First, Ms. Blackburn contends the State did not give her adequate time to comply with the second treatment plan. This Court recently addressed a similar argument where the lower court terminated parental rights of the natural mother just 40 days after approving a treatment plan. In the Matter of M.J.D., C.K.D., A.R.D. (1987), 225 Mont. 200, 731 P.2d 937. In that case we affirmed the lower court, concluding that the forty days prior to the petition did not accurately reflect two years effort on the part of the DFS to rehabilitate the family. In the Matter of M.J.D., 225 Mont. at 205, 731 P.2d at 939-940.

Similarly, in this case the six weeks prior to filing the petition do not accurately reflect the DFS’s efforts to rehabilitate the family. The DFS has worked with both parents since 1988. During this time, Dana and Darin Blackburn both failed to comply with the approved treatment plans. Neither displayed a commitment to follow through on counseling and treatment necessary to develop stability and skills to care for their children.

In this case, there were two successive plans approved. The District Court found that it was the parents’ failure to comply with both treatment plans over a long period of time that indicated they were unlikely to provide adequate parenting to their children within a reasonable time. In In the Matter of M.J.D., we found no abuse of discretion by the court when it considered the department’s efforts prior to approving the treatment plan in ordering the termination of parental rights. In the Matter of M.J.D., 225 Mont. at 205, 737 P.2d at 940. Here, as in In the Matter of M.J.D., we conclude the District Court did not abuse its discretion in considering Darin and Dana Blackburn’s non-compliance with the first treatment plan, in ordering the termination.

Next, Ms. Blackburn claims that in ordering termination, the court failed to consider the significant progress she made since her separation from Darin Blackburn. The record indicates that Dana separated from Darin Blackburn in April 1991 and moved from Drummond, Montana to Deer Lodge, Montana. It further indicates that since the separation, Ms. Blackburn obtained full time employment and became involved in another relationship.

Here, the District Court found: “Recent changes in Dana’s life are not significant enough to overcome the history of abuse and neglect of these minor children over the last three years.” These findings of the lower court will not be disturbed on appeal unless the findings are clearly erroneous. Rule 52(a) M.R.Civ.P. In this case, the record supports the District Court’s findings. Here, Ms. Blackburn indicated in testimony that her change in circumstances would allow her to properly care for her children. However, both Ms. Sherd and Ms. Weida offered contradictory testimony wherein they stated the Black-burns had a history of separating then reuniting. Further, Ms. Weida testified that these changed circumstances did not convince her that Ms. Blackburn could adequately care for her children:

I have no confidence in Dana’s ability to carry out the necessary treatment. I have lost that confidence completely. So I do not believe that separate, or together with Darin, that she will be able to complete the necessary items that would make it possible for us to return the children to her, and it would take at least six months for that to happen, and that’s another six months of these children’s lives, and with her history where she almost completed in December, and then didn’t do some of the significant pieces, I don’t have confidence that she’s going to be able to maintain the responsibility needed to adequately parent the children. Parenting and loving are two different pieces.

The record shows that after the DFS filed the petition to terminate the Blackburns’ parental rights, Dana and Darin both made efforts to attend scheduled visitation with the children. However, neither parent had completed any portion of the second treatment plan by the August 1991 hearing, a full six months after the court’s approval of the plan.

This Court will not substitute its judgment for that of the lower court regarding the credibility of witnesses or the weight of their testimony. Smith-Carter v. Amoco Oil Co. (1991), 248 Mont. 505, 510, 813 P.2d 405, 408. Here, despite the conflicting evidence presented, we conclude the findings of the District Court are supported by the record.

We conclude the District Court’s findings are not clearly erroneous. Further, the State has presented clear and convincing evidence that Ms. Blackburn failed to comply with either treatment plan, and that the conditions rendering her unfit as a parent were unlikely to change within a reasonable time.

We hold the District Court properly terminated the parental rights of Ms. Blackburn.

II

Did the guardian ad litem properly protect the rights of the children?

Ms. Blackburn contends that the guardian ad litem compromised the rights of the children by failing to conduct an independent investigation regarding the alleged abuse and neglect.

However, Ms. Blackburn failed to raise the issue before the trial court. This Court will not consider for the first time on appeal an issue which was not raised in the district court. Keller v. Dooling (1991), 248 Mont. 535, 540, 813 P.2d 437, 441. We conclude the issue is not properly before this Court.

Affirmed.

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