author: CHIEF JUSTICE TURNAGE

text:
    BILL WATKINS, Plaintiff and Respondent, v. TOM WILLIAMS and VIRGINIA WILLIAMS, Defendants and Appellants.
    No. 93-428.
    Submitted on Briefs April 21, 1994.
    Rehearing Denied Aug. 4, 1994.
    Decided June 2, 1994.
    51 St.Rep. 489.
    877 P.2d 19.
    265 Mont. 306.

      For Defendants and Appellants: Kevin E. Vainio, Butte.
    For Plaintiff and Respondent: Gilbert U. Burdett, Burdett Law Firm, Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Tom and Virginia Williams appeal from a judgment of the Second Judicial District Court entered against them following a jury verdict awarding Bill Watkins $20,191. They also appeal the denial of their motions for judgment notwithstanding the verdict and for a new trial.

We rephrase the dispositive issues as follows:

1. Whether the District Court erred in permitting Watkins to testify about the amount of damages he suffered.

2. Whether the court erred in determining that evidence about circumstances surrounding Watkins’ alleged criminal arrest was inadmissible.

3. Whether the court erred in finding that the parties’ attempted accord agreement was not satisfied and therefore did not extinguish their previously existing oral contract.

4. Whether the court erred by excluding evidence concerning the alleged forgery of a bill of sale.

5. Whether the court erred in excluding from evidence a letter, introduced by the Williamses at trial, which purported to contain material terms of compensation for Watkins’ horse training services.

Tom and Virginia Williams own racehorses. At times, their horses have raced on tracks in Montana, Wyoming, Idaho and Oklahoma.

During March 1989, the Williamses asked Bill Watkins, a licensed horse trainer, to train six of their racehorses on location at Sallisaw, Oklahoma. Watkins agreed. The parties dispute whether their oral agreement contained material terms regarding compensation for Watkins’ services.

The Williamses and Watkins opened an account at Blue Ribbons Downs racetrack, located near Sallisaw. As one of the Williamses’ horses placed in or won a race, the winnings were deposited in the account. Racetrack expenses, such as entry fees, were taken out of the account. The parties agreed that Watkins could withdraw certain monies from the account to cover his training costs and charges.

Watkins provided the horses with hay, alfalfa, grain, vitamins, stables and exercise, among other things. At his request, jockeys galloped the horses around the track. Watkins also had veterinarians attend to the horses’ medical needs.

Two of the six horses, The Right Key and Bodella, were taken off training status during the Fall of 1989. The Williamses drove from Montana to Oklahoma with a horse trailer and picked up The Right Key; Watkins put Bodella out to pasture after the horse failed to qualify in speed tests at the track.

Tom Williams occasionally visited Sallisaw to meet with Watkins and check on the horses during the course of the parties’ contractual relationship. The Williamses irregularly paid Watkins portions of the amount they owed him; also, Watkins withdrew funds from the racetrack account from time to time.

The parties’ contractual relationship ended approximately one year after it began. They met during March 1990 and worked out an accord to extinguish the Williamses’ existing debt to Watkins. They agreed that the Williamses would pay Watkins $5,000, and, at that time, Tom Williams tendered two $2,500 checks to Watkins.

Watkins sent the checks to his bank. When his account was not credited with the second $2,500 check, Watkins learned that the check had become lost.

He called the Williamses and asked them to stop payment on the check. They did. Watkins also asked the Williamses to issue another $2,500 check to complete their accord agreement. They refused.

The Williamses stated that they refused because when they retrieved their racehorses after making the accord agreement with Watkins, they found the horse Bodella to be in poor condition. Specifically, they alleged that Bodella had been mistreated and starved by Watkins.

Watkins obtained the services of an attorney. Through his attorney, Watkins again requested that the Williamses complete their accord agreement by reissuing the second $2,500 check. The Williamses again refused.

When Watkins sued the Williamses on the original oral agreement, he stated that the Williamses had incurred a debt of approximately $38,000. Watkins further stated that the Williamses had directly and indirectly paid approximately $18,000 of the debt, leaving a balance of $20,191 owing.

The Williamses responded by alleging that the parties had reached a separate accord agreement which had extinguished the original oral contract. The Williamses also counter-claimed against Watkins, alleging that he mistreated their horse, Bodella.

At trial, testimony established that Watkins’ charges for training horses was reasonable in Sallisaw, Oklahoma. The jury returned a verdict for Watkins, stating that the Williamses owed him $20,191. The jury found that Watkins did not owe the Williamses anything for the alleged mistreatment of Bodella. Judgment was entered accordingly, and the Williamses appeal.

STANDARD OF REVIEW

We review a district court’s findings of fact for clear error and its conclusions of law to determine whether the conclusions are correct. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 803 P.2d 601. Regarding questions concerning the admissibility of evidence, the “question[s] ... must in every case be left largely to the sound discretion of the trial court, subject to review only in case of manifest abuse.” Cech v. State (1979), 184 Mont. 522, 604 P.2d 97, citing Gunderson v. Brewster (1970), 154 Mont. 405, 466 P.2d 589.

ISSUE ONE

Did the District Court err by permitting Watkins to testify about the amount of damages he suffered?

The Williamses argue that the court erred by permitting Watkins to testify about the amount of damages he suffered because, while testifying, Watkins allegedly read from a document which was excluded from evidence. The document was a summary of contents contained in a wall calendar kept by horse trainers in Sallisaw. Watkins presented it to the court for admission into evidence and the Williamses objected, stating that the summary was not the best evidence of Watkins’ training services. After voir dire of Watkins, the Williamses also alleged that the document should be excluded as self-serving. The court sustained the Williamses’ objection.

Watkins thereafter testified about the amount of training services he rendered. He specifically stated that he charged $18 per day per horse trained. The $18 figure included a myriad of services, from shoeing to galloping to feeding and sheltering. Watkins charged a different amount for attending to Bodella’s needs while the horse was at pasture. The total bill for his services for the year was $37,888. And, Watkins testified, the Williamses had paid him $17,697 of the debt they owed him, reducing the amount owing to a balance of $20,191.

Disputing the figure, the Williamses argue that the court erred by allowing Watkins to testify while reading from the calendar summary. They allege that the testimony is improper according to Rules 1002 and 1006, M.R.Evid. Watkins responds by asserting that the best evidence rule does not exclude oral testimony and that the court correctly permitted him to testify about the damages he suffered.

Rule 1002, M.R.Evid., the best evidence rule, requires that “[t]o prove the content of a writing... the original writing... is required ....” Rule 1006, M.R.Evid., provides that:

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.

The best evidence rule pertains to evidentiary documents only when the terms of the writing are material. State v. Cronin (1978), 179 Mont. 481, 587 P.2d 395. It comes into play only when the terms of a writing are being established and an attempt is being made to offer secondary evidence to prove the contents of the original document. See Application of Angus (Or.App. 1982), 655 P.2d 208, cert. denied (1983), 464 U.S. 830, 104 S.Ct. 107, 78 L.Ed.2d 109.

Secondary evidence may include a copy of an original or testimony in regards to the contents of the original. See 32AC.J.S.2d Evidence, § 775. The secondary evidence is admissible over a best evidence objection if one of the requirements set forth at Rule 1004, M.R.Evid., has been met and proper foundation is laid.

Witness testimony adduced from personal experience or knowledge is not within the ambit of secondary evidence; witnesses may freely testify about events which have occurred independently from and may have been memorialized by an antecedent writing. See, e.g., Roods v. Roods (Utah 1982), 645 P.2d 640; see also D’Angelo v. United States (1978), 456 F.Supp. 127; Cf. Rule 602, M.R.Evid. The best evidence rule remains inapplicable when a witness testifies about personal knowledge of a matter, regardless whether the same information may be contained in an inadmissible writing. Moreover, our rules of evidence permit witnesses to use writings to refresh their memory while testifying. Rule 612, M.R.Evid.

After reviewing the record, we conclude that Watkins testified from personal knowledge and experience and that his concurrent use of the summary of contents from the wall calendar was not reversible error. The summary’s contents, as stated by Watkins during oral testimony, merely set forth the number of days he trained the horses and the resulting charges which were incurred by the Williamses. Neither party disputes the length of time the horses were in Watkins’ possession and the jury found Watkins’ charge of $18 per day per horse to be a reasonable fee given the facts of this case and the location in which the training occurred.

Indeed, the Williamses did not offer any significant rebuttal evidence concerning damages; after hearing Watkins’ testimony the jury was free to find that the Williamses owed him $20,191. Section 26-1-301, MCA. We conclude that the District Court did not commit reversible error in permitting Watkins to testify about the amount of damages he suffered.

ISSUE TWO

Did the court err in determining that evidence about circumstances surrounding Watkins’ alleged criminal arrest was inadmissible?

On Watkins’ motion in limine, the court excluded evidence concerning Watkins’ alleged arrest. After reviewing the record, we hold that the court did not err in granting the motion in limine.

ISSUE THREE

Did the court err in finding that the parties’ attempted accord agreement was not satisfied and therefore did not extinguish their original oral contract?

Originally the court, on Watkins’ motion in limine, excluded all evidence pertaining to the parties’ attempted accord agreement because the court found that the agreement was not satisfied. During trial, however, Watkins “opened the door” to the subject by testifying that he had attempted to resolve the parties’ differences by entering into an accord with the Williamses. The Williamses then presented evidence of the accord, specifically alleging that they were justified in not completing the accord when they found Bodella in poor condition. The jury disregarded the Williamses’ accord and satisfaction argument and returned a verdict in favor of Watkins.

The Williamses argue that the court’s initial exclusion of the accord and satisfaction affirmative defense was reversible error because it prejudiced their case. Watkins counters by asserting that the Williamses were permitted a generous latitude in which to present their accord and satisfaction defense, and that the jury was justified in returning its verdict given the evidence and testimony presented at trial.

An accord is “an agreement to accept in extinction of an obligation something different from or less than that to which the person agreeing to accept is entitled.” Section 28-1-1401, MCA. Satisfaction is “acceptance by the creditor of the consideration of an accord.” Section 28-1-1402, MCA. Where there is no satisfaction, the original debt is not extinguished and the debtor remains liable for damages. Goggins v. Bookout (1963), 141 Mont. 449, 378 P.2d 212; see also Hetherington v. Ford Motor Co. (1993), 257 Mont. 395, 849 P.2d 1039.

We affirm the District Court’s determinations that the Williamses did not satisfy the accord and that evidence of the failed attempt at settling their differences was properly initially excluded from trial pursuant to Rule 408, M.R.Evid. Although the Williamses initially tendered two $2,500 checks to Watkins and normally a check constitutes valid consideration, see § 28-2-801, MCA, the court, when determining when an accord has been satisfied, will look to substance over form. Section 1-3-219, MCA. The court here was justified in determining that the accord was not satisfied because the Williamses stopped payment on the second check and then repeatedly refused to tender another to Watkins. We conclude that the court did not err.

ISSUE FOUR

Did the court err by excluding evidence concerning the alleged forgery of a bill of sale?

During trial, in support of their accord and satisfaction defense, the Williamses attempted to introduce evidence of an alleged theft or sale of their horse trailer. They asserted that the horse trailer belonged to them, but was in Watkins’ possession, when it disappeared. They further asserted that Watkins forged a bill of sale relating to the horse trailer. Being caught with forgery, contend the Williamses, was the reason that Watkins agreed to the terms of the parties’ accord. The court excluded the evidence of the alleged forgery as being irrelevant and outside of the scope of the Williamses’ pleadings; the court did, however, permit the Williamses to inquire about the horse trailer during trial.

A court has authority or jurisdiction to decide issues as they are framed by the parties’ pleadings. Old Fashion Baptist Church v. Dep’t of Revenue (1983), 206 Mont. 451, 671 P.2d 625. The parties may plead by complaint, answer or counterclaim, among other things. Rule 7(a), M.R.Civ.P.

Rule 13(a), M.R.Civ.P., provides:

A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim ....

Permissive counterclaims, those which do not arise out of the same transaction, may also be pled by a defendant. Rule 13(b), M.R.Civ.P. Additionally, if a party has erroneously omitted a counterclaim, the party may, with the leave of court, set up the counterclaim by amendment. Rule 13(f), M.R.Civ.P.

The Williamses raised two issues in their counterclaim against Watkins: That the parties’ original agreement was extinguished by an accord and satisfaction, and that Watkins owed the Williamses damages for mistreating Bodella. No pleading asserts that Watkins forged a bill of sale; the Williamses did not at any time attempt to amend the pleadings to reflect a forgery claim.

After reviewing the record, we conclude that the court did not err in excluding the forgery evidence because it was irrelevant to this debt action and because it was outside the scope of the issues presented in the parties’ pleadings.

ISSUE FIVE

Did the court err in excluding from evidence a letter, introduced by the Williamses at trial, which purported to contain material terms of compensation for Watkins’ horse training services?

The Williamses’ proposed evidence, a letter which purported to set out the oral agreement of the parties concerning compensation for Watkins’ horse training services, was first introduced during trial.

Counsel for Watkins objected to the letter because it had not been produced dining discovery. The letter was not listed in the parties’ exhibit lists and was not listed in the court’s pretrial order. Counsel for the Williamses stated that he had only seen the letter a few days prior to trial, and that he thought the letter had been listed as an exhibit. After discussion, the court sustained Watkins’ objection and instructed the jury not to consider the document.

The Williamses argue that the letter was wrongly excluded from evidence because it was introduced in rebuttal to Watkins’ oral testimony. Watkins states that the Williamses failed to make an offer of proof on the document and that the court appropriately excluded it from evidence under the circumstances in this case.

The District Court is in the best position to determine whether a party has violated the rules of civil procedure. Dassori v. Roy Stanley Chevrolet Co. (1986), 224 Mont. 178, 728 P.2d 430. Failure to disclose evidence during discovery may lead to sanctions. Vehrs v. Piquette (1984), 210 Mont. 386, 684 P.2d 476. As a sanction, the court may limit one party’s testimony and evidence, according to Rule 37, M.R.Civ.P. Owen v. F. A. Buttrey Co. (1981), 192 Mont. 274, 627 P.2d 1233.

The court issued its scheduling order on March 31, 1992, and stated that:

Copies of proposed exhibits shall be submitted to the court at least five (5) days prior to the trial date. A fully completed Record of Exhibit forms [sic] from all parties along with witness lists setting forth the general order in which the witnesses will appear and testify is required.

The Williamses did not submit the letter to the court prior to trial. Also, the Williamses failed to give the letter to Watkins in response to Watkins’ requests for discovery. We conclude that the court did not err in refusing to admit the letter into evidence. Affirmed.

JUSTICES HARRISON, TRIEWEILER, GRAY and WEBER concur.


source: Caselaw Access Project

author: JUSTICE HARRISON

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TIMOTHY JEROME HULBERT, Defendant and Appellant.
    No. 93-628.
    Submitted on Briefs April 28, 1994.
    Decided June 21, 1994.
    51 St.Rep. 526.
    877 P.2d 25.
    265 Mont. 317.

      For Appellant: Karl Knuchel, Livingston.
    For Respondent: Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General, Helena; Wm. Neis Swandal, Park County Attorney, Livingston.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Timothy Jerome Hulbert (Hulbert) appeals the Sixth Judicial District Court’s, Park County, denial of his motion to suppress the results of a search conducted by the Livingston Police Department pursuant to a search warrant issued January 12, 1993, by the Justice of the Peace. Hulbert also appeals the District Court’s findings of fact and conclusions of law which found him guilty of criminal possession of dangerous drugs with the intent to sell, a felony, and guilty of criminal possession of drug paraphernalia, a misdemeanor. We affirm.

The issues are:

I Was the January 12, 1993, search warrant based on probable cause?

II Was the State required to prove that Hulbert had in excess of one kilogram of marijuana to charge and convict him of criminal possession with the intent to sell pursuant to § 45-9-103(1), MCA?

Based on tips from a confidential informant, Livingston Police Chief, Lynn Gillett, on January 12, 1993, applied for and received a search warrant to search Hulbert’s Livingston residence. At 8:00 p.m., Chief Gillett and three other law enforcement officers served the search warrant. The officers entered the house and found Hulbert and Thomas Gibson inside.

The officers secured the house and videotaped items which were in plain view. The officers then searched the house and seized forty-three items of evidence. On the main floor of the residence they found and seized several marijuana pipes, an Ohaus triple-beam balance scale and other drug paraphernalia.

The basement door was locked and the officers asked Hulbert to unlock the door. He refused and the officers removed the door from the hinges to check the basement. In the basement the officers found five small marijuana plants, three medium sized marijuana plants and one large marijuana plant. The plants were located in two rooms equipped with several huge grow lights and an elaborate scheme of plant feeder tubes, timers and fans. The officers also found transformers, pumps, reflectors, buckets, potting soil, other planting materials and a file folder marked "grow room" which documented various expenses and provided a ledger with names and figures.

Chief Gillett described the grow operation as a sophisticated set up which could run itself through the use of timers and other electrical equipment. The plants were sent to the State Crime Lab. The Crime Lab confirmed that the plants were marijuana and determined that the plants weighed 111.67 grams.

On February 12,1993, the Park County Attorney filed an information charging Hulbert with: 1) criminal sale of dangerous drugs, marijuana, by cultivation, a felony violation of § 45-9-101, MCA (1991); and 2) criminal possession of drug paraphernalia, a misdemeanor violation of § 45-10-103, MCA (1991).

On March 9, 1993, Hulbert filed a motion to dismiss the criminal sale charge. On March 22, 1993, the county attorney filed a motion to amend the information to substitute the criminal sale count with the charge of criminal possession of dangerous drugs with the intent to sell, a felony violation of § 45-9-103(1), MCA (1991). The District Court denied Hulbert’s motion to dismiss and granted the State’s motion to amend.

Hulbert, on April 30,1993, filed a motion to suppress the evidence obtained during the January 12, 1993, search. Hulbert argued that the search warrant was not based on probable cause and, thus, the search was invalid. The District Court denied Hulbert’s motion. The State amended the information on June 2, 1993, and Hulbert was arraigned on June 15, 1993.

The parties stipulated to certain facts, Hulbert waived his right to a jury trial, and the District Court held a non-jury trial on June 28, 1993. After the parties submitted proposed findings of fact and conclusions of law, the District Court found Hulbert guilty on both charges. The court sentenced him to seven years at the Montana State Prison, four years suspended, on the charge of criminal possession with the intent to sell and a concurrent six months for criminal possession of drug paraphernalia. The District Court stayed the execution of Hulbert’s sentence pending this appeal.

I

Was the January 12, 1993, search warrant based on probable cause?

Hulbert argues that the search warrant application did not contain sufficient facts to establish probable cause. According to Hulbert, since the search warrant was not valid, his house was illegally searched and the District Court should have suppressed the evidence obtained from that search.

It is well established that the “totality of the circumstances” test is used to determine whether probable cause supports the issuance of a search warrant. State v. Neely (1993), 261 Mont. 369, 370, 862 P.2d 1109, 1110. We review the circumstances set forth in the affidavit and consider whether the issuing magistrate had a substantial basis for concluding that probable cause existed. State v. Sunberg (1988), 235 Mont. 115, 122, 765 P.2d 736, 741. Probable cause is established if there is a fair probability that incriminating items will be found at the place described in the search warrant. Sunberg, 765 P.2d at 739.

In this case, Chief Gillett submitted a search warrant affidavit setting forth these facts:

On or about the 5th day of December, 1992,1, Chief of Police Lynn H. Gillett, met with confidential informant #264 at the Livingston Police Department. CI264 has on numerous occasions given affiant and other law enforcement officers information that has proven to be reliable arid accurate upon further investigation.
CI264 stated he had received information that a subject by the name of Timothy Hulbert is currently growing marijuana in the basement of his residence. Hulbert’s residence is located at the old Broken Stirrup Saddelry which is west of the Yellowstone Truck Stop on Old Highway 10 West. CI264 stated he has known Hulbert for several years during which time he has had personal knowledge that Hulbert has grown marijuana on numerous occasions. Hulbert is known to grow mostly bud which has been known to sell for several thousand dollars a pound. CI264 advised that the grow operation will be in two separate rooms. One room for starter plants and one room for larger plants.
On or about December 15, 1992, CI264 called, stating that he had been in the Hulbert residence to visit Hulbert and while there observed that the door leading into the basement of the residence where the grow operation is located was covered with plywood and fastened with screws. CI264 stated that this would be normal for Hulbert because he would not want anyone in the rooms or light let in at the wrong time. CI264 has also known Hulbert, with the assistance from an electrician, to by-pass the electric meter to get power for his grow operations to avoid detection by law enforcement if they were to check his power bills. CI264 stated Hulbert usually takes out a six month lease on a residence other than his own residence to conduct his grow operations, but Hulbert has been low on money, making it impossible to lease a separate location, so he set the grow up in his own residence. The grow operation should be on timers and a grow takes approximately seventy (70) days. CI264 was also told personally by Hulbert that he was indeed growing marijuana, but was unable to show the plants because there were too many people around.
On or about December 20,1992, affiant was contacted by CI264 who stated he had been at the Hulbert residence and a male subject from Wyoming who is staying with Hulbert showed CI264 starter plants in a small room in the basement. CI264 was only able to view the starter plants for a short time because someone else knocked on the door to the residence and they had to leave the basement. CI264 did observe approximately ten (10) starter plants in peat moss in the room.
During the months of December 1992 and start of January 1993, CI264 reported that on several occasions Hulbert has had parties at his residence where alcohol and illegal drugs were consumed. During this time, Hulbert appeared to CI264 to be using alcohol and drugs to excess and has become very paranoid even towards his close friends. CI264 has been told by friends of Hulbert’s that when they went to his residence, he would peek out the curtain, but not open the door. CI264 has also personally observed Hulbert act this way when he is strung out on cocaine. Also, CI264 knows Hulbert is always very observant of law enforcement while he has a grow growing.
On January 8, 1993, affiant received from Montana Power Company a computer printout of the power usage at Hulbert’s residence, a copy of which is attached. The printout reflects usage before and after Hulbert had the power put in his name. The power was placed in Hulbert’s name in April 1992. The following comparisons were made from the printout. The month of October 1991 compared to 1992 — the difference in kilowatt hours is 1,980 KWH more usage in 1992. November 1991 compared to November 1992 — the kilowatt usage was 1,388 KWH more in 1992. December 1991 compared to December 1992 — the kilowatt usage was 1,032 KWH more in 1992. Affiant believes that the power records indicate a substantial increase in power usage which would indicate the use of grow lights and assorted equipment used in the growing of marijuana.
Since December, 1992, affiant has observed on numerous occasions suspected drug users parked at or leaving Hulbert’s residence. Also, Hulbert’s vehicles have been parked at the residence and all information received states that Hulbert is the occupant of the residence.

Hulbert argues that certain facts in the search warrant affidavit contain hearsay statements which are inadequate to establish probable cause. However, “[rjeliable hearsay information may be considered to establish probable cause.” State v. Jensen (1985), 217 Mont. 272, 277, 704 P.2d 45, 48. Reliability can be established through corroborative evidence or surrounding facts which support the conclusion that it is probable that incriminating items will be found at the place to be searched. Jensen, 704 P.2d at 48.

We refuse to review a search warrant application sentence by sentence, rather we examine the entire affidavit to determine whether the issuing magistrate had a substantial basis to conclude that probable cause existed. Sunberg, 765 P.2d at 741. Although CI264 stated that he had received information that Hulbert was growing marijuana in his residence, this hearsay statement was supported by these surrounding facts: 1) CI264 had personally observed ten starter marijuana plants in Hulbert’s basement; 2) CI264 specifically stated that the plants were in two basement rooms — one room containing starter plants and one room containing larger plants; 3) Hulbert admitted to CI264 that Hulbert was growing marijuana in his basement; and 4) CI264 also knew that Hulbert’s operation contained timers. Moreover, the police corroborated CI264’s statement by observing the presence of suspected drug users at or leaving Hulbert’s residence and analyzing Hulbert’s increased use of electricity in 1992 as compared to the amount used in 1991. We conclude that the hearsay statement of CI264 was supported by surrounding facts and police corroboration which justified the issuing magistrate’s conclusion that probable cause existed to search Hulbert’s residence.

Hulbert next argues that the affidavit does not establish that CI264 was reliable. According to Hulbert the conclusory statement that “CI264 has on numerous occasions given [Gillett] and other law enforcement officers information that has proven to be reliable and accurate upon further investigation” is not sufficient to establish CI264’s reliability.

While the reliability of an informant is an important consideration under the “totality of the circumstances” test, we have never required an affidavit to particularly describe each incident in which an informant provided reliable and accurate information. We conclude that a sworn statement by a law enforcement officer that an informant was reliable and accurate on other occasions is an acceptable method to establish an informant’s reliability. See State v. Hendrickson (1985), 217 Mont. 1, 5, 701 P.2d 1368, 1371; State v. Seaman (1989), 236 Mont. 466, 472, 771 P.2d 950, 953-54.

Finally, Hulbert argues that since CI264 observed the marijuana plants three and one-half weeks before the search warrant was issued, there was no proof that the plants would be in existence at the residence when the warrant was issued. Hulbert contends that CI264’s observations were stale and, thus, probable cause did not exist.

Staleness depends on the nature ofthe property which is the object of the search warrant. State v. Walston (1989), 236 Mont. 218, 223, 768 P.2d 1387, 1390. However, if it is established that the criminal activity is continuing, “a greater amount of time may elapse between the observation of the activity and the application for a search warrant without negating probable cause.” Walston, 768 P.2d at 1390.

Here, the target of the search was not only the marijuana plants, but also the grow operation which existed in Hulbert’s basement. Moreover, CI264 stated that a grow takes seventy days and that he saw starter plants in the basement on December 20, 1992. Since Hulbert had marijuana starter plants in his basement on December 20,1992, and it took seventy days to grow marijuana, the District Court correctly concluded that the informant’s observations were not too remote to negate probable cause.

After a careful review of the entire affidavit, we conclude that under the “totality of the circumstances” test the justice of the peace had a substantial basis to conclude that it was probable that incriminating items would be found at Hulbert’s residence. These facts establish that the justice of the peace was justified in concluding that probable cause existed: 1) the substantial increase in power usage; 2) observation of suspected drug users at Hulbert’s residence; 3) CI264’s personal observations of Hulbert’s grow operation; 4) Hulbert’s drug parties; and 5) Hulbert’s admissions to CI264 that Hulbert was growing marijuana in his basement. The District Court properly denied Hulbert’s motion to suppress.

II

Was the State required to prove that Hulbert had in excess of one kilogram of marijuana to charge and convict him of criminal possession with the intent to sell pursuant to § 45-9-103(1), MCA?

Initially, Hulbert was charged with possession of drug paraphernalia and criminal sale of dangerous drugs by cultivation. Because of our decision in State ex rel. Zander v. District Court (1979), 180 Mont. 548, 591 P.2d 656, the State moved to delete the criminal sale charge and amend the information to charge Hulbert with criminal possession of dangerous drugs with the intent to sell. The State did not file a separate affidavit to support the amended charge, but instead relied on the affidavit from the initial charge. We have previously held that when the initial affidavit establishes probable cause as to the amended charge, the State is not required to submit a second affidavit to support the amended charge. State v. Ecker (1990), 243 Mont. 337, 340, 792 P.2d 1079, 1081.

Here, Hulbert argues that the initial affidavit is insufficient since it does not allege that Hulbert possessed in excess of one kilogram of marijuana. According to Hulbert the State was required to prove that he possessed in excess of one kilogram of marijuana in order to charge and convict him of criminal possession of dangerous drugs with the intent to sell — § 45-9-103(1), MCA. We disagree.

Prior to 1987, § 45-9-103(1), MCA, stated:

A person commits the offense of criminal possession with intent to sell if he possesses with intent to sell any dangerous drug as defined in 50-32-101. No person commits the offense of criminal possession with intent to sell marijuana unless he possesses 1 kilogram or more.

The Annotator’s note to § 45-9-103(1), MCA, refers to the second sentence as creating “a conclusive presumption of no intent to sell where marijuana is possessed in amounts less than one kilogram.” However, in 1987, the legislature deleted the second sentence of § 45-9-103(1), MCA. Although we discussed § 45-9-103(1), MCA, in State v. Garberding (1990), 245 Mont. 356, 801 P.2d 583, we did not apply any presumption for or against the defendant, concerning the quantity of marijuana and the defendant’s intent to sell. Our holding in Garberding did not, as Hulbert suggests, resurrect the conclusive presumption which the legislature deleted from § 45-9-103(1), MCA, in 1987. We hold that § 45-9-103(1), MCA, does not require the State to prove possession in excess of one kilogram of a dangerous drug to convict a person of possession of dangerous drugs with the intent to sell.

However, the State is required to prove that the person intended to sell the drugs. We have previously recognized the difficulty in proving criminal intent. State v. Hall (1991), 249 Mont. 366, 371, 816 P.2d 438, 441. “Because it is seldom subject to direct proof, intent must be inferred from the acts of the accused and the facts and circumstances of the offense.” Hall, 816 P.2d at 441. In Hall, we concluded that the presence of drugs and other items commonly used in drug transactions — such as scales, containers, packaging materials and individually packed drugs — support an inference of intent to sell. 816 P.2d at 441.

Here, Hulbert had a large grow operation with an elaborate set of timers, feeder tubes, fans, vents, lights and potting materials in his basement. The police confiscated nine marijuana plants and other items which are commonly used in drug transactions: 1) an Ohaus triple-beam balance scale; 2) various pipes and bongs; and 3) a manila folder marked "grow room" containing names and an expense ledger. These cumulative facts justified an inference that Hulbert intended to sell the marijuana. We hold that there was sufficient proof to support the District Court’s verdict. Accordingly, we affirm Hulbert’s conviction and the sentence imposed on him by the District Court.

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


author: JUSTICE WEBER JUSTICE NELSON

text:
    NORTHWEST TRUCK & TRAILER SALES, INC., a Montana corporation, Plaintiff and Appellant, v. ROGER W. DVORAK and PATRICIA J. DVORAK, Defendants and Respondents.
    No. 94-044.
    Submitted on Briefs April 28, 1994.
    Decided June 28, 1994.
    51 St.Rep. 564.
    877 P.2d 31.
    265 Mont. 327.

      For Appellant: Clifton W. Hayden, Stewart R. Kirkpatrick, Murphy & Kirkpatrick, Billings.
    For Respondent: Jack E. Sands, Billings.
   JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiff Northwest Truck & Trailer Sales, Inc. (Northwest) appeals the order of the District Court of the Thirteenth Judicial District, Yellowstone County, granting the motion of defendants Roger W. Dvorak and Patricia J. Dvorak (the Dvoraks) for an extension of time to file their notice of appeal. We affirm.

The sole issue for review is restated as follows:

Did the District Court err by granting the Dvoraks’ motion to extend the time for filing their appeal?

This appeal arises from the Dvoraks’ failure to file their notice of appeal from a judgment within the thirty days prescribed by Rule 5(a)(1), M.R.App.P. Northwest sued for a deficiency judgment stemming from the Dvoraks’ breach of a contract to purchase a 1987 Peterbilt truck. Judgment reflecting the jury verdict and awarding the sum of $31,663.52 was entered in favor of Northwest on October 20, 1993.

On November 22, 1993, a Monday, the Dvoraks filed their Notice of Appeal appealing the judgment and hand-delivered the same to Northwest’s counsel. Unquestionably, this Notice of Appeal was filed and served beyond the initial thirty-day period allowed by Rule 5(a)(1), M.R.App.P. The thirty-day period for appeal ended on the previous Friday, November 19, 1993. On November 23, 1993, the Dvoraks’ counsel filed a motion to extend the time to file their notice of appeal, along with their counsel’s affidavit stating the reasons for late filing. Counsel for the Dvoraks further stated in his affidavit that this constituted neglect and asked that it be deemed excusable neglect.

After a hearing on the motion to extend the time for filing the appeal, the District Court granted the Dvoraks’ counsel’s motion on the basis of both good cause and excusable neglect. The court noted that the question whether this constituted excusable neglect was very close in this case, nonetheless concluding that miscalendaring the appeal time constituted excusable neglect as well as good cause, a lesser showing than excusable neglect.

Did the District Court err by granting the Dvoraks’ motion to extend the time for filing their appeal?

As a preliminary matter, the Dvoraks contend that this is not an appealable order because it is not specifically set forth in Rule 1, M.R.App.P. They have attempted to insert this as an issue for the Court to consider, but have failed to properly raise the issue in a cross-appeal. However, in Sadowsky v. City of Glendive (1993), 259 Mont. 419, 856 P.2d 556, we noted that a denial of a motion for extension of time to file an appeal is also not listed as an appealable order and, therefore, Rule 1, M.R.App.P., on its face prohibited the appeal in that case, which we then proceeded to address on the merits, stating as follows:

Because the denial of an extension of time to file a notice of appeal is not simply a ministerial act, but is a decision within the discretion of the district court, we conclude that it would be unjust to deny the right of appeal from such a decision. We therefore hold that the denial of a ... motion for an extension of the time allowed for filing a notice of appeal is an appealable order.

Sadowsky, 856 P.2d at 558. Rule 1, M.R.App.R, allows appeal “from any special order made after final judgment.” We conclude this is such an order as was the order in Sadowsky.

We are presented with an issue of law which this Court has not specifically addressed concerning the June 16, 1986 amendment to Rule 5(a)(1), M.R.App.P. (1985). That amendment added the additional standard of “good cause” for extending time for filing a notice of appeal by an additional thirty days beyond the original thirty-day limit. See Rule 5(c), M.R.App.P. Prior to January 19, 1987, the effective date of that amendment, only a showing of excusable neglect would permit an extension of time for filing an appeal.

The 1986 amendment was patterned after similar changes in 1979 to Rule 4 of the Federal Rules of Appellate Procedure. Northwest contends that this Court should follow the lead of the majority of the federal circuit courts of appeal and interpret the rule to mean that “good cause” only applies to motions made prior to the expiration of the initial thirty-day period for filing a notice of appeal. Northwest further argues that the “excusable neglect” standard — a higher standard than good cause — applies to all motions to extend the time for filing a notice of appeal which are filed after the expiration of the initial thirty-day period.

Northwest relies on the Ninth Circuit decision in State of Oregon v. Champion Int’l Corp. (9th Cir. 1982), 680 F.2d 1300, 1301, (quoting Advisory Committee Notes to 1979 Amendment to Rule 4(a)(5), Fed.R.App.P.), which states:

The good cause language was added to the Rule by a 1979 amendment because the excusable neglect standard “never fit exactly the situation in which the appellant seeks an extension before expiration of the initial time.”

In Oregon, the court applied the good cause standard only to motions made during the initial thirty-day appeal period and the excusable neglect standard only to motions filed after the initial thirty-day period for appeal. We do not agree with the Ninth Circuit that these motions are so limited in application.

Further, the Ninth Circuit decided another case within days of the Oregon case which stated that a motion for an extension of time, filed after the expiration of the original appeal time, could be granted “only upon a showing of excusable neglect or good cause,” citing the same Rule 4(a)(5), Fed.R.App.P. See Sprout v. Farmers Ins. Exch. (9th Cir. 1982), 681 F.2d 587, 588. Both cases were decided by three-judge panels and Chief Judge Browning sided with the majority in both cases, with no mention made of the Sprout decision in Oregon. See 16 Wright, Miller, Cooper & Gressman, Federal Practice and Procedure: Jurisdiction § 3950 (1977 and 1994 Supp.).

Not all federal circuit courts have agreed with the Oregon principle. In Scarpa v. Murphy (1st Cir. 1986), 782 F.2d 300, 301, the court stated:

... We regard the Oregon court’s statement that the phrase “good cause” is applicable only when the motion is filed before the time for filing the appeal has expired, 680 F.2d at 1310, as an unwarranted maiming of the rule. Plaintiff mistook the ground for his motion. The rule expressly recognizes “good cause” as a basis for extension both before and after the expiration of the appeal time. There was no mistake by counsel, excusable or otherwise. Rather, there was inexcusable neglect by the Post Office to take more than five days... to transmit an adequately addressed letter three miles, and no basis for charging counsel for failing to think that more might be needed. The court should have given the motion a practical meaning, cf. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962), as including “good cause,” and should have found such.

Like the federal rule, the plain language of Rule 5(c), M.R.App.P., does not support Northwest’s argument that we should adopt the reasoning of the majority of federal courts which require a separate standard before and after the expiration of the initial thirty-day time for filing an appeal. We therefore decline to adopt the rationale of those courts which restrict the application of the good cause standard. We emphasize that Rule 5(c), M.R.App.P., is clear on its face, providing that “The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than the 30 days after the expiration of the time prescribed by Rule 5(a).”

Moreover, this Court’s former decisions have not so limited the excusable neglect standard to motions filed after the initial thirty-day period. In In Re the Marriage of Bahm (1987), 225 Mont. 331, 333, 732 P.2d 846, 847 (citing Zell v. Zell (1977), 172 Mont. 496, 565 P.2d 311), the Court noted that a motion for extension based on excusable neglect may be filed before or after expiration of the first thirty days. Northwest has provided no persuasive argument for treating the good cause standard differently. In fact, this Court has already applied the good cause standard in Kizer v. Semitool, Inc. (1991), 251 Mont. 199, 824 P.2d 229, a case where the motion to extend the time for filing a notice of appeal was filed after the initial thirty days expired. See also First Security Bank of Havre v. Harmon (1992), 255 Mont. 168, 841 P.2d 521.

In Kizer, Semitool similarly had filed a motion to extend the time for filing the notice of appeal one day after the initial thirty-day period expired. The district court applied the good cause standard to extend the time for filing a notice of appeal after the expiration of the initial thirty-day period. Without discussion, this Court held that Semitool’s notice of appeal was timely filed. Kizer, 824 P.2d at 231. We conclude the District Court correctly followed prior case law interpreting Rule 5(c), M.RApp.P. We further conclude that Bahm, Zell, First Security Bank of Havre and Kizer support the better-reasoned view and decline to overrule them.

We next address the District Court’s findings that both good cause and excusable neglect were present in this case. Rule 5(c), M.R.App.P, gives the district courts discretion to extend the time for filing a notice of appeal upon a finding of good cause or excusable neglect. We therefore review these findings of the District Court to determine whether the court has abused its discretion.

Good cause is a more liberal standard than excusable neglect and the addition of that standard to Rule 5(c), M.R.App.P., in 1986 was intended to provide greater flexibility to the district courts in reviewing motions for extending the time for filing a notice of appeal. Counsel for Dvoraks’ affidavit included the following as reasons to support a finding of excusable neglect:

3. The Dvoraks expressed their interest in filing this appeal ever since the verdict was rendered. We agreed that the Dvoraks would provide the costs of the appeal in advance and that the appeal would be filed when arrangements for the payment of costs were made. I understood that this might mean I would not file the appeal until near the end of the period to appeal. I always understood that the Dvoraks intended that the appeal be filed in a timely manner.
4.1 was served with the notice of entry of judgment in this case late in the day on October 20, 1993. The service was by hand.
5. I was very busy that day and just accepted the notice without calendaring it at that time. I calendared it the next day.
6.1 incorrectly calendared the deadline for filing the notice of appeal for November 22, 1993, for the following reasons:
a. One day delay in calendaring resulted from the fact that the notice was received late in the day.
b. The notice was hand-delivered rather than the [sic] served by mail, which would give an additional three days in which to file the appeal. I usually receive notices by mail rather than by hand.
c. I inadvertently viewed 30 days as a month, which would allow until November 22, 1993 to file the notice of appeal.

The District Court concluded as follows:

Here the Court concludes that the showing made by defendants would constitute good cause to extend the time for filing notice of appeal. Whether such showing is sufficient under the excusable neglect standard is more difficult. The Court recognizes that the federal cases have interpreted excusable neglect strictly. Extensions for excusable neglect are normally only granted in exceptional cases where injustice would otherwise result. It may be found when unpredictable events affect the delivery of a notice of appeal such as uncontrollable delays in delivery of mail and illness of counsel. However mere ignorance of the law or the rules is not considered to be excusable unless the failure has been caused by a plausible misconstruction of the rules. The burden is on the party demonstrating excusability. In the federal cases excusable neglect will not be found “when the failure to timely file an appeal is caused by palpable oversight, administrative or clerical errors by the attorney or the attorney’s staff, an attorney’s busy schedule, or deliberate strategic decisions. 9 Moore’s Federal Practice ¶ 204.13 [1.-3] p. 4-107.
It would be difficult to excuse a mistake made by reason of an addition of three days when service was not accomplished by mailing but by personal service. Is it an administrative or clerical error to count October as a 31 day month instead of a 30 day month, and attempt to excuse that neglect within the rules? Without question it would be a very close case. The Court concludes in this very close case that it will find such miscalendaring to constitute excusable neglect as well as good cause. The Court feels impelled to add that it is difficult not to consider the fact that the notice of appeal was only filed one business day late.

We agree with the District Court that this is a very close case.

In McCormick v. McCormick (1975), 168 Mont. 136, 139, 541 P.2d 765, 766, this Court discussed the excusable neglect standard, noting that district courts should be permitted to extend time in cases where injustice would otherwise result. In McCormick, the Court restated the rule in Montana which is that each case must be determined on its own facts and when the motion is promptly made and is supported by a showing which leaves the court in doubt or on which reasonable minds might reach differing conclusions, doubt should be resolved in favor of the motion. McCormick, 541 P.2d at 767.

The Third Circuit in Consolidated Freightways Corp. of Del. v. Larson (3rd Cir. 1987), 827 F.2d 916, 919, has stated that a thoughtful analysis of the issue requires, at a minimum, that the following factors be weighed and balanced: (1) whether the inadvertence reflects professional incompetence such as ignorance of the rules of procedure, (2) whether the asserted inadvertence reflects an easily manufactured excuse incapable of verification by the court, (3) whether the tardiness results from counsel’s failure to provide for a readily foreseeable consequence, (4) whether the inadvertence reflects a complete lack of diligence, or (5) whether the court is satisfied that the inadvertence resulted despite counsel’s substantial good faith efforts toward compliance.

A recent decision of the United States Supreme Court provides further guidance concerning factors to consider in determining excusable neglect. In Pioneer Inv. Services Co. v. Brunswick Associates Ltd. Partnership (1993),_, U.S._, 113 S.Ct. 1489, 1498, 123 L.Ed.2d 74, 89-90, the Supreme Court stated that all relevant factors should be considered, including the danger of prejudice, length of delay and its potential impact on judicial proceedings, reason for the delay and whether it was within the reasonable control of the movant, and whether the movant acted in good faith. Although Pioneer addressed excusable neglect in the context of Rule 9006(b)(1), 11 U.S.C.A., of the Federal Rules of Bankruptcy Procedure and not under the Federal Rules of Appellate Procedure, the Supreme Court nonetheless granted certiorari based on the conflict in the courts of appeals over the meaning of excusable neglect in both bankruptcy cases and cases interpreting Rule 4(a)(5), Fed.R.App.P. Pioneer, 113 S.Ct. at 1494. Accordingly, we conclude these are factors which may be properly considered in assessing the facts on a case by case basis to determine whether a motion for extension of time should be granted to the movant.

The District Court was in a better position to assess the credibility of the rationale provided by counsel for the Dvoraks in support of the motion for extension of time to file the notice of appeal, including the risk of prejudice, reason for and impact of the delay, and the good faith of counsel for the Dvoraks. We conclude the District Court did not abuse its discretion in finding good cause and excusable neglect based on the unique facts of this case.

We hold the District Court properly granted the Dvoraks’ motion to extend the time for filing their appeal based on good cause and excusable neglect.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and TRIEWEILER concur.

JUSTICE NELSON

specially concurring:

I concur with the result reached by the Court in its opinion. In doing so, I do not concur with all that is stated in the opinion, however.

I would defer to the discretion exercised by the District Court in its finding that Dvoraks’ counsel demonstrated the lesser standard of good cause under Rule 5(c), M.R.App.P. I submit, however, that, as a practical matter and under the facts here, we have now set the good cause standard so low as to nearly eliminate the standard altogether.

I would not find that counsel’s conduct met the higher standard of excusable neglect. The Advisory Committee Notes to Rule 5 indicate that the time for filing an appeal should be extended for excusable neglect only "... in extraordinary cases where injustice would otherwise result.” Advisory Committee Notes to Original Rule 5, M.RApp.P., Annotations, MCA. This is simply not such a case under any definition of that concept heretofore utilized by this Court. In In Re the Marriage of Bahm (1987), 225 Mont. 331, 732 P.2d 846, we held that counsel’s busy schedule did not constitute excusable neglect; in McCormick v. McCormick (1975), 168 Mont. 136, 541 P.2d 765, we refused to find excusable neglect because the appellant changed her mind about filing an appeal; in Neuringer v. Wortman (1980) 186 Mont. 298, 607 P.2d 543, we did not find excusable neglect justifying an extension of time in which to file an appeal where the party knew that the case had been decided against him and where he knew that he had thirty days in which to appeal, but failed to do so.

Without belaboring the point further, we have extensively defined the parameters of excusable neglect in the context of untimely motions under Rule 60(b) M.R.Civ.P. While this case does not deal with a Rule 60(b) motion, the conduct on which we have found excusable neglect here is precisely the kind of conduct that we have, for years, consistently rejected as not constituting excusable neglect in other cases.

Given the nature of that conduct here, this case, apparently, now stands for the proposition that there is really no difference between the two standards of good cause and excusable neglect. It begs the question of what, then, was accomplished by the addition of the good cause standard to Rule 5(c) in 1986? Apparently, very little.

Finally, I do not agree with the Court’s discussion of Sadowsky v. City of Glendive (1993), 259 Mont. 419, 856 P.2d 556. In the first place, since there was no cross-appeal filed we should not even consider or address the issue of whether the court’s order is appealable under Rule 1, M.R.App.P. See Silva v. City of Columbia Falls (1993), 258 Mont. 329, 332-333, 852 P.2d 671, 674.

Worse, we then cite Sadowsky as authority for holding that the court’s order here is appealable. Sadowsky, involved the denial of a motion for extension of time in which to file an appeal. In that case we correctly held that the denial of a motion for extension of time, while not an appealable order under Rule 1, M.R.App.P, nevertheless is appealable because such an order has the effect of a final judgment and effectively and finally concludes the case and the rights of the parties. Sadowsky, 856 P.2d at 558.

To the contrary, the order granting the extension of time in this case does not have that effect. Such an order is interlocutory, the case and rights of the parties are not finally concluded and the appeal on the merits is preserved. If the party against whom the order is issued so desires, he or she may cross-appeal the granting of that order as a part of the appeal under Rule 5(a)(3), M.R.App.P., (or, alternatively, the respondent may file a motion to dismiss the appeal.) Rule 22, M.R.App.P. See, also, 9 Moore’s Federal Practice, § 204.12(4).

As we pointed out in Sadowsky,

... this court has reviewed instances in which district courts have granted extensions of time for filing a notice of appeal, [case citations omitted]. In those cases, however, the extensions of time were reviewable in appeals of other, subsequent appealable orders or judgments as “intermediate order[s] or decision[s] excepted or objected to within the meaning of Rule 46 of the Montana Rules of Civil Procedure, which involve the merits, or necessarily affect the judgment^]” See Rule 2, M.R.App.P. (Emphasis added.)

Sadowsky, 856 P.2d at 558. That is not the situation here.

In gratuitously discussing Sadowsky and in ruling on an issue on which we should not rule, we have ignored or misapplied established precedent, and we have needlessly extended the right of litigants to appeal interlocutory orders of the district court. I cannot agree.


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DOUGLAS DUANE TURNER, Defendant and Appellant.
    No. 93-067.
    Submitted April 28, 1994.
    Decided May 24, 1994.
    51 St.Rep. 467.
    877 P.2d 978.
    265 Mont. 337.

      For Appellant: William F. Hooks, Appellate Defender Office, Helena.
    For Respondent: Joseph P. Mazurek, Attorney General, Elizabeth S. Baker and John P. Connor, Jr., Assistant Attorneys General, Helena; Christopher G. Miller, Powell County Attorney, Deer Lodge.
   JUSTICE HUNT

delivered the Opinion of the Court.

Defendant/appellant, Douglas Duane Turner, appeals from a jury verdict in the Third Judicial District Court, Powell County, convicting him of kidnapping by accountability, a felony, and five counts of deliberate homicide under Montana’s felony-murder doctrine. Appellant is an inmate at the Montana State Prison where he was present during the riot on September 22,1991, in which five inmates were killed.

We affirm.

Appellant raises three issues on appeal:

1. Did the District Court err when it failed to dismiss the felony-murder deliberate homicide convictions after the jury returned an inconclusive verdict on the burglary charge because the State failed to establish the underlying felony or prove a causal connection?

2. Did the District Court err when it failed to grant appellant’s motion to dismiss on the ground that the State failed to preserve evidence?

3. Did the District Court err when it permitted the State to exhibit autopsy photographs of the five deceased inmates?

On September 22, 1991, the Montana State Prison housed 68 inmates in the maximum security unit. Ten of these inmates were in “protective custody’ (PC) in D Block. The inmates had been placed in PC because their safety was in jeopardy from the other inmates at the prison. Within the maximum security unit, non-protective custody inmates were allowed access only to that part of the building where they were housed, unless escorted through other areas in cuffs by corrections officers. PC inmates had more privileges and less restrained access within the unit.

The maximum security unit of the Montana State Prison is a rectangular building divided into six living blocks and two central control cages. Each block has two levels, with eight cells on each level. The west side of the building contains the main control cage and Blocks A, B, and C. The east side of the building contains the satellite control cage and Blocks D, E, and F. The two control stations in the maximum security unit contain electronic consoles which control all of the unit’s gates and cell-block doors. The consoles contain keys that are used to shut off the power to the consoles. The main control cage is located in the center of the west half of the maximum security unit, and controls operations for Blocks A, B, and C, and other portions of the building. The satellite control cage controls operations for Blocks D, E, and F, and is located in the center of the east half of the unit, across the exercise yards from the west side of the unit. The cages are enclosed in glass.

On September 22, 1991, as was routine, thirteen maximum security inmates were escorted by five correctional officers to the exercise yard of the maximum security unit. The exercise yard is located in the center of the unit, and includes six 20’ x 30’ cages enclosed with chain-link fencing. Only three inmates are allowed to exercise in one cage at a time.

On the morning of September 22, 1991, some inmates removed some chain links from the fencing of the exercise cage without notice by the correctional officers. Removal of the chain links created a hole in the fencing of the exercise cage. The correctional officers came to the yard to escort the inmates back to their cells. They began with Yard Area Five because one of the inmates in that cage told the officers he needed to use the bathroom. The five officers working the floor of the unit that day escorted three inmates from Yard Area Five to C Block, where the inmates resided.

At that time, nine of the ten inmates remaining in the exercise yard came through the openings in the exercise cage fencing, and into the west side of the maximum security unit building which housed the main control cage. When the correctional officer working the main control cage noticed the inmates rushing in, he radioed to the command post that there was a riot. Several of the escaping inmates beat on the cage doors and windows with a telephone and a fire extinguisher. The inmates were yelling as they went. The inmates shattered the window on the outside of the cage. At that point the officer feared for his life and scaled the ladder out of the cage and escaped onto the roof where he locked the hatch from the roof. The officer operating the satellite cage controls began to close the chain-link gate which separates the east and west portions of the building.

Appellant was the first inmate to enter the east side of the building. He picked up a bucket and placed it in the path of the closing gate, which propped it open. The correctional officer controlling the satellite cage called the control center for help. Then appellant ran to the east cage and smashed the cage windows with a chair. This officer also feared a face-to-face confrontation with the inmates and escaped through the roof hatch, leaving behind the console keys.

Meanwhile, the five officers who had escorted the three inmates to C Block became locked in C Block, and took refuge inside a 3’ x 5’ shower room and locked the door with a padlock. The officers remained in the shower for the duration of the riot — about three hours.

The D Block inmates who were in PC were freed from their cells by the inmates controlling the door latches at the satellite cage. The PC inmates began breaking up broom handles for weapons to protect themselves in the event the rioters got the Block doors opened. They built a barricade on one staircase leading from the lower to the upper level of D Block. However, the rioters entered D Block through the upper level and took the PC inmates by surprise. All the PC inmates were beaten by the rioters and five of them were killed.

Testimony at trial placed appellant on D Block during the riot. He was seen by one of the beaten PC inmates walking around with William Gollehon checking to see if the PC inmates were dead, and approaching the cell of one of the PC inmates who was killed. Another PC inmate testified that appellant and Gollehon attempted to hang another PC inmate from the railing of the upper level of D Block. They were unsuccessful in that attempt and eventually pushed him off the upper level to the floor 18 feet below, which resulted in his death.

Appellant also was identified as one of the rioters who attacked two other PC inmates, and threw one over the D Block railing. This inmate also died as a result of his injuries. Numerous other witnesses placed appellant in D Block going through the fire doors and attacking other PC inmates.

Appellant testified and admitted to involvement in the riot, including the planning of the riot, the escape from the yard, placing the bucket in the doorway between the east and west sides of the building, and beating on the east control cage windows. However, he denied ever going onto D Block during the riot and denied any involvement in causing injury to other inmates. Appellant called witnesses who also were inmates charged with offenses as a result of the riot, and who testified only that appellant was not on D Block during the riot.

The riot was quelled by the prison’s Disturbance Control Team, which entered the building at approximately 2:00 that afternoon.

On February 3,1992, appellant was charged by information in the Third Judicial District Court with Count I, kidnapping by accountability, in violation of §§ 45-5-302 and 45-2-302, MCA; Count II, burglary, in violation of § 45-6-204, MCA; and Counts III through VII, deliberate homicide, five counts, in violation of § 45-5-102(l)(b), MCA (the felony-murder rule).

The jury trial commenced on July 17, 1992. During jury deliberation, the jury presented the District Court with the following inquiry regarding the burglary charge:

Can a person be innocent of burglary yet accountable to said burglary, therefore guilty of deliberate homicide by means of Instructions 24 through 28, part 1?

The court answered and stated to counsel for the record:

In that regard, Instruction 24 through 28 read, in pertinent part, “That to convict the Defendant of the charge of deliberate homicide set forth in Count, — of each particular Count of the Information, the State must prove the following elements: #1, that the Defendant committed or is legally accountable for the commission of burglary.” The Court has previously told the Jury that under Count 2, the Defendant has not been charged with accountability for burglary. The question then arises whether or not the Defendant can be convicted of deliberate homicide given the instructions as read into the record at this time. The Court proposes to answer the question of the Jury with a simple yes.

At the end of the deliberations, the jury advised the court that it was unable to reach a -unanimous verdict on the burglary charge. Thereafter, appellant moved the court for a mistrial as to the burglary charge and the five counts of deliberate homicide on the grounds that the conviction of the underlying burglary was necessary for conviction of deliberate homicide under the felony-murder statute, § 45-5-102(1)(b), MCA, and State v. Weinberger (1983), 206 Mont. 110, 671 P.2d 567. On July 28, 1992, the court ordered the parties to file simultaneous briefs regarding defendant’s motion to dismiss. On August 10, 1992, appellant also filed a motion to set aside the verdict, again on the grounds that the conviction of the underlying burglary was necessary for conviction of deliberate homicide under the felony-murder statute and Weinberger. Appellant argued that unless the burglary count was charged by accountability, the jury could not return guilty verdicts on the five felony-murder counts because it did not reach a unanimous decision on the underlying charge. The State replied that it was not necessary that the jury find that appellant actually committed the burglary by being present on D Block with the intent to riot. Instead, the State argued that in order to find appellant guilty of the homicides under the felony-murder rule, it only had to provide evidence sufficient for the jury to find that appellant aided or facilitated the commission of the offense of burglary.

On September 15, 1992, the District Court denied appellant’s motion to set aside the verdict. The court found that the jury had been instructed properly on accountability, and that failure by the jury to return a verdict on the burglary charge did not require dismissal of the five convictions of deliberate homicide.

On October 8, 1992, the District Court proceeded with sentencing without objection. Also on October 8, 1992, the State moved the District Court to dismiss the burglary count with prejudice. On October 13, 1992, the comb temporarily dismissed the burglary charge, without prejudice. On October 14,1992, the court entered its judgment and sentenced appellant to a term of ten years in the Montana State Prison for the kidnapping conviction, and to a term of life imprisonment on each of the five counts of deliberate homicide, for a total of five terms of life imprisonment. The five life terms imposed for the charges of deliberate homicide are to run concurrently, but run consecutively to the term imposed for the kidnapping conviction, and the sentence previously imposed for which appellant was already incarcerated.

On September 24, 1992, appellant petitioned this Court for a writ of supervisory control to review an order of the District Court authorizing retrial on the burglary count which could violate the double jeopardy protection of the Constitution and § 46-11-503, MCA. Turner v. District Court of the Third Judicial Dist. (1992), No. 92-460, Montana Supreme Court. This Court denied the writ on November 2, 1992, because by the time of sentencing, the State had moved to dismiss the burglary charge with prejudice, and because it did not intend to retry that charge, appellant was no longer subject to the possibility of double jeopardy.

After appellant’s application for writ of supervisory control had been denied by this Court, on November 10,1992, the District Court granted the State’s motion of October 8,1992, to dismiss the burglary charge with prejudice.

On November 12,1992, appellant filed a notice of appeal with this Court. On February 8,1993, the District Court ordered the appellate defender as substitute counsel of record on appeal.

ISSUE 1

Did the District Court err when it failed to dismiss the felony-murder deliberate homicide convictions after the jury returned an inconclusive verdict on the burglary charge because the State failed to establish the underlying felony or prove a causal connection?

Appellant argues that the deliberate homicide charges were based on an uncharged predicate felony, burglary by accountability, which was not tried or submitted to the jury. He asserts that because those charges were based instead on burglary, the State had to prove that either he or any person legally accountable for the burglary killed another person during the course of the burglary. He asserts that the jury’s failure to return a verdict on the burglary charge established that the State failed to sustain its burden of proof. Further, he asserts that the blank verdict form constitutes an acquittal of the burglary charge, and thus mandates reversal of the deliberate homicide convictions.

Finally, appellant argues that for three reasons, the evidence did not sufficiently establish that he committed attempted burglary. First, appellant’s act of propping open the door to gain access to the east side of the building did not constitute unlawful entry or remaining in an occupied structure (D Block), pursuant to the burglary statute. Second, appellant was not the only inmate to help prop open the door. Third, appellant submits that the State failed to establish the requisite causal connection between his alleged felonious act and the deaths.

The felony-murder statute provides:

(1) A person commits the offense of deliberate homicide if:
(b) he attempts to commit, commits, or is legally accountable for the attempt or commission of robbery, sexual intercourse without consent, arson, burglary, kidnapping, aggravated kidnapping, felonious escape, felony assault, aggravated assault, or any other forcible felony and in the course of the forcible felony or flight thereafter, he or any person legally accountable for the crime causes the death of another human being.

Section 45-5-102(l)(b), MCA.

Under the court’s instruction pursuant to this statute and the wording in the information, the jury could have found that appellant either committed burglary or was legally accountable for its commission. The charging document mirrored the language of the felony-murder statute. Each deliberate homicide count read as follows:

On or about the 22nd day of September, 1991, at Montana State Prison, Powell County, State of Montana, the above-named defendant, with the purpose of promoting or facilitating the offense of burglary, aided, abetted or attempted to aid other inmates in the maximum security unit in the planning or commission of the offense of burglary and in the course of said burglary, the defendant or other persons legally accountable for said burglary, caused the death of.... [Emphasis added].

Appellant does not argue that the burglary and deliberate homicide verdicts are inconsistent. Instead, he asserts there was a failure to convict on the predicate felony which now requires reversal of the deliberate homicide convictions.

We have held that an underlying felony in a deliberate homicide pursuant to § 45-5-102(l)(b), MCA, is not a lesser-included offense, but is a distinct offense. State v. Kills on Top (1990), 243 Mont. 56, 92, 793 P.2d 1273, 1297. Appellant’s charges of burglary and felony-murder are distinct offenses and not inconsistent.

Although we said in Weinberger that “half of the felony murder rule is a felony,” it does not follow from this statement that there must be a conviction for that felony. See Weinberger, 671 P.2d at 580. In Weinberger, Adam Weinberger was charged with two counts of deliberate homicide. In Count I, Adam was charged with aiding and abetting his father, Arrow Weinberger, in causing a death, pursuant to §§ 45-5-102(1)(a) (deliberate homicide) and 45-2-302(3), MCA (1978) (when accountability exists). In Count II, Adam was charged with felony-murder, pursuant to §§ 45-5-102(1)(b) (felony-murder rule), 45-4-103 (attempt), and 45-5-202(1)(c) (aggravated assault), MCA (1978). Adam’s father shot and killed the victim while Adam attempted the crime of aggravated assault against the victim. Because of the manner in which Adam Weinberger was charged and the jury was instructed, the jury was required to acquit him of one of the two charges. Implicit in the Weinberger jury’s acquittal of Adam of the aiding and abetting charge was a finding that he and his father had not agreed to kill the victim. We found that the evidence supported the jury’s finding, and after we examined the other charge — the underlying felony of attempted aggravated assault — we concluded that the evidence did not support the felony-murder conviction either.

In Weinberger, we clarified that the basis for our decision was the State’s failure to prove that the defendant was engaged in an attempt to commit a felony. Weinberger, 671 P.2d at 580. We noted that a completed attempt or completed felony was not required in order for the felony-murder rule to apply. Weinberger, 671 P.2d at 580. A conviction under the felony-murder rule requires that the evidence support a finding as to each element of deliberate homicide including the underlying offense, not that there be a conviction for a completed felony. This principle is consistent with our decision in Weinberger. There the State failed to prove the underlying offense.

Accountability for the deliberate homicides means that appellant played an active role in facilitating the commission of the burglary. See State v. Fish (1980), 190 Mont. 461, 471, 621 P.2d 1072, 1078. In the case on appeal, the jury heard overwhelming proof of appellant’s participation in the plan and design of the underlying felony and intent to riot. In addition, the jury heard overwhelming substantial credible evidence so as to make appellant chargeable for the incident of the homicides by accountability and for several of the homicides directly. Appellant admitted to blocking the entrance gate to the east side of the building which facilitated at least some other inmates in committing the homicides in D Block. Even though the jury did not find appellant guilty of knowingly committing the burglary, it is consistent that appellant could still be found guilty of attempting to aid others in the commission of a burglary which resulted in death of other human beings. In light of such overwhelming evidence of appellant’s guilt, we will not overturn the jury’s conviction of deliberate homicide by accountability. The State introduced proof beyond a reasonable doubt that appellant promoted or facilitated the offense of burglary by aiding and abetting or attempting to aid and abet other inmates in maximum security in the planning or commission of the burglary.

We also disagree that the jury’s inconclusive verdict on the burglary charge established that the State failed to sustain its burden of proof, and therefore, mandates reversal of the homicide convictions.

Appellant argues that under Weinberger a blank verdict form is a not-guilty verdict. We disagree. The jury in Weinberger returned an inconclusive verdict as to Count I, finding Adam neither guilty nor not guilty of aiding and abetting Arrow in the death. This Court regarded the inconclusive verdict as one of not guilty, as it was so treated by the parties and was not disputed. Weinberger, 671 P.2d at 568. Also, Weinberger is distinguishable from this case because Weinberger’s two charges were pled in the nature of alternative charges, where the conviction of one charge required the acquittal of the other.

The meaning of the jury’s blank verdict in this case has no impact on the ultimate issue because we know why the jury intended to leave the verdict form blank on the burglary charge. After deliberations, the jury communicated to the court that it left the jury verdict form blank on the burglary charge because it was unable to reach a unanimous verdict. The record shows that during jury deliberations, the jury asked the court: “Can a person be innocent of burglary yet accountable to said burglary, therefore guilty of deliberate homicide ...?” The court responded in the affirmative. We cannot speculate on how or why the jury failed to reach a verdict on the burglary charge. We decline to define the meaning of a blank verdict form in any given case or state a general rule.

Finally, appellant asserts that the State did not sufficiently prove that he committed burglary. He asserts that his initial act which facilitated the entry onto D Block by others could not establish entry or remaining in an occupied structure. We disagree. In a companion case from the September 22, 1991, prison riot, we held that D Block is an occupied structure. State v. Gollehon (1993), 262 Mont. 293, 864 P.2d 1257, 1262, 50 St. Rep. 1564, 1567. We said that D Block is an independent area of the maximum security unit which is separately secured and that Gollehon’s entrance into that structure for the purpose of committing an offense therein constituted a burglary. Appellant’s actions of escaping through the chain-link fencing and propping open the door to gain access to D Block made him accountable for the unlawful entry into D Block by other inmates. Proof that he unlawfully entered or remained in D Block was not necessary to find him so accountable. Appellant’s assertion that the State failed to provide proof that he was accountable for burglary because he was not the only inmate to help prop open the door is without merit.

Finally, appellant’s contention that the State failed to establish the requisite causal connection between his alleged felonious act and the deaths is without merit. Appellant argues that “more than a mere presence at the scene of a crime is necessary to establish criminal responsibility.” (quoting Fish, 621 P.2d at 1078). In addition, he asserts that Montana law requires the presence of a causal connection between the felonious act and the death. State ex rel. Murphy v. McKinnon (1976), 171 Mont. 120, 127, 556 P.2d 906, 910.

Montana law defines a causal relationship as the cause of a result if without the conduct the result would not have happened. Section 45-2-201, MCA. The record shows that appellant was more than merely present at the scene of the crime. He facilitated the burglary when he propped open the entrance gate to the east side of the building. In addition, Montana’s felony-murder statute itself supplies the causal connection element by requiring that the death occur “in the course of the forcible felony or flight thereafter.” Section 45-5-102(l)(b), MCA. The evidence was that the deaths occurred in the course of the burglary — a felony that appellant facilitated when he secured the inmates’ access to D Block by propping open the east entrance gate. The State established the requisite causal connection between appellant’s felonious act and the deaths.

Regardless of the inadequate explanation for the jury’s blank verdict on the burglary charge, the record contains overwhelming substantial credible evidence to support the jury’s verdict of guilty for the homicide charges. The question is not whether appellant was convicted of the burglary charge, but whether the deliberate homicide convictions were supported by substantial credible evidence as to each element of that offense. The record shows such evidence was provided the jury.

We hold that the District Court did not err when it failed to dismiss the felony-murder deliberate homicide convictions after the jury returned an inconclusive verdict on the burglary charge.

ISSUE 2

Did the District Court err when it failed to grant appellant’s motion to dismiss on the ground that the State failed to preserve evidence?

Appellant argues that he was denied due process when he was prejudiced by the State’s failure to preserve his coverall clothing and tennis shoes worn during the riot. Appellant claims that the evidence was material and exculpatory, and would have tended to clear him of guilt and vitiate his convictions. Appellant asserts that in a riot situation where the actors are unknown, the clothing and personal effects upon which blood spatters and other matter would be found, would tend to help establish who participated and who did not. Appellant argues that the State’s failure to preserve this evidence was negligent and warrants dismissal of the homicide charges.

Once prison officials secured the maximum security unit after the riot, inmates in the unit were stripped of their clothing, and the clothing was eventually discarded. Removal of the inmates’ clothing is standard tactical procedure in order for officers to do a thorough and quick inspection for weapons which could be hidden on an inmate’s person, and to ensure the safety of the officers and the other inmates. At the time the control team began this procedure, it was not aware that inmates had been killed. Investigators initially made some effort to examine some of the clothing for identification, but abandoned the effort upon realizing the impossibility of the task. Testimony reveals that the inmates’ orange coveralls were strewn about the maximum security building, and inmates had changed clothing frequently during the disturbance.

This issue and the facts and circumstances presented here are identical to those presented in Gollehon. In Gollehon, we held that the destruction of the inmates’ clothing from the September 22,1991, riot did not provide a basis for reversing the defendant’s convictions. Our holding in this case is the same.

In Gollehon, we said that a defendant must show a deliberate or intentional suppression of exculpatory and constitutionally material evidence in order to claim a per se violation of due process. Gollehon, 864 P.2d at 1264-65 (citing State v. Sadowski (1991), 247 Mont. 63, 79, 805 P.2d 537, 547; and State v. Halter (1989), 238 Mont. 408, 412, 777 P.2d 1313, 1316). In order to vitiate a conviction, “negligently suppressed evidence must be material and of substantial use, vital to the defense, and exculpatory.” Sadowski, 805 P.2d at 547.

We still are convinced that the inmates’ clothing was not constitutionally material. There was no showing that the clothing was destroyed with the knowledge of its potential exculpatory value or that the evidence was of such a nature that appellant would be unable to obtain comparable evidence. See Gollehon, 864 P.2d at 1265. We still are convinced also that the prison officials’ objective when “ordering the inmates to strip was to get the unit under control and to restrain the rioting inmates from further violence.” See Gollehon, 864 P.2d at 1265. Finally, appellant failed to show that even if he had been able to establish the absence of blood on his clothing or that any blood was his own, he failed to establish that the evidence would have vitiated his accountability for the deaths of the inmates during the riot.

We hold that the District Court did not err when it denied appellant’s motion to dismiss on the ground that the State failed to preserve his clothing.

ISSUE 3

Did the District Court err when it permitted the State to exhibit autopsy photographs of the five deceased inmates?

Appellant asks that we reconsider this issue, identical to one raised in Gollehon, and reverse our holding. Appellant argues that certain autopsy photographs admitted into evidence were inflammatory, which unduly and unfairly prejudiced him because the prejudice outweighed the probative value. He asserts that the autopsy photographs were neither relevant and probative to the kidnapping charge, nor substantially necessary or instructive on any material fact or condition in issue. Finally, appellant argues that the evidence was cumulative because the State already had presented photographic evidence of the victims’ identities, and of the damage and destruction in the building lobby, guard control cages, hallways, catwalks, and offices.

As in Gollehon, the State introduced 20 autopsy photographs during the medical examiner’s testimony, which depicted the five slain inmates. In Gollehon, we held that although the photographs depicted the brutality and viciousness of the crimes committed, they were admissible. Gollehon, 864 P.2d at 1263. They did not arouse the jurors’ passions any more than other evidence of the defendant’s conduct. Gollehon, 864 P.2d at 1263. We also stated that we would “not demand that a trial be sanitized to the point that important and probative evidence must be excluded.” Gollehon, 864 P.2d at 1263. Recently, we affirmed this standard in State v. Mergenthaler (1993), 263 Mont. 198, _, 868 P.2d 560, 564, 51 St. Rep. 13, 16.

The trial court properly admitted autopsy photographs during the medical examiner’s testimony. As in Gollehon, the photographs were displayed during the medical examiner’s testimony approximately 10 to 15 feet from the jury box. The photographs were not individually handed to the jury in any fashion, and at the conclusion of the testimony were sealed and did not go to the jury room during deliberations.

Appellant was not prejudiced by admission of the photographs. The photographs’ probative value outweighed any prejudice because they fairly and accurately represented relevant evidence, even though they depicted brutality and viciousness. The evidence was used to corroborate much of the inmates’ testimony concerning the actions of appellant and others during the riot, the credibility of which was hotly disputed at trial.

The photographs were not cumulative because they were necessarily instructive for purposes of explaining the medical examiner’s testimony with respect to the autopsies performed. The photographs simplified the examiner’s task of attempting to explain the victims’ injuries to the jury. Finally, the photographs had probative value because a jury is entitled to know the nature and extent of the injuries. State v. Henry (1990), 241 Mont. 524, 531, 788 P.2d 316, 320.

We hold that the District Court did not err when it permitted the State to exhibit autopsy photographs of the five deceased inmates.

In our reading of the entire record of this case, from the filing of the information against appellant to the final judgment of the court, it is clear that appellant had a fair trial.

We affirm.

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

JUSTICE NELSON did not participate in this decision.