text:
    CANBRA FOODS LTD. and BUTTREY FOOD & DRUG CO., Petitioners and Appellants, v. THE MONTANA DEPARTMENT OF REVENUE, THE TREASURER OF BUTTE-SILVER BOW COUNTY, and THE STATE TAX APPEAL BOARD, Respondents and Respondents.
    No. 96-166.
    Submitted on Briefs August 22, 1996.
    Decided October 17, 1996.
    53 St.Rep. 954.
    278 Mont. 368.
    925 P.2d 855.

      For Appellants: Steven T. Potts; Jardine, Stephenson, Blewett & Weaver, Great Falls.
    For Respondents: Deborah Harten; Department of Revenue, Office of Legal Affairs, Helena.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Canbra Foods Ltd. and Buttrey Food & Drug Co., (collectively Canbra) appeals from the First Judicial District Court, Lewis and Clark County, holding that its request for review was not timely submitted and its appeal to the Butte-Silver Bow County Tax Appeal Board (the CTAB) was not timely filed. We reverse.

For purposes of this decision, this Court will discuss only the following dispositive issues:

1) Is the mailing of a request for review with the DOR the equivalent of “submitting” a request under § 15-7-102(3), MCA (1993)?
2) Did the District Court err in holding that the CTAB did not have jurisdiction to hear Canbra’s appeal?

BACKGROUND

In 1993, the Department of Revenue (the DOR) assessed property owned by Canbra at a value of $7,277,136. The DOR mailed an assessment notice to Canbra on June 24, 1993. However, the notice was returned by the Postal Service because the DOR had failed to pay adequate postage. On July 9, 1993, Canbra contacted the DOR inquiring whether an assessment had been sent. In response, the DOR sent Canbra another copy of the appraisal both by mail and facsimile. The facsimile received by Canbra was illegible. Canbra received a legible copy of the appraisal by mail on July 12,1993. The DOR argues that Canbra received notice of the classification and appraisal on July 9, 1993, the date on which the DOR provided the information to Canbra via facsimile; thus, the deadline to file an appeal would have been fifteen days from July 9, 1993. The District Court, however, adopted the July 12th date upon which Canbra received notice by mail. Since the DOR has not appealed from that ruling, the date of July 12,1993, will be used as the date upon which Canbra received notice of the classification and appraisal.

Canbra disagreed with the DOR’s $7,277,136 assessment of the property. On July 27,1993, Canbra mailed a Form AB-26 requesting that the DOR review the assessment. On the same day, Canbra also mailed an appeal of the assessment to the CTAB. The DOR rejected Canbra’s request for review of its valuation finding the request was not timely. Although the DOR did not conduct a review of the valuation of the property, the CTAB reduced Canbra’s property assessment to $4,000,000 in response to Canbra’s appeal. Despite the reduction, Canbra appealed the CTAB’s decision to the State Tax Appeal Board (STAB) which dismissed the appeal finding that Can-bra’s original July 27,1993 appeal to the CTAB was not timely.

Canbra appealed the STAB’s decision to the First Judicial District Court, Lewis and Clark County. In its appeal, Canbra maintained that mailing its request for review to the DOR was a sufficient means of “submitting an objection” under § 15-7-102(3), MCA (1993). In addition, Canbra contended that mailing a notice of appeal was a sufficient method of filing an appeal with the CTAB. The District Court disagreed, holding that a timely filing of the appeal was a jurisdictional prerequisite which could not be waived. The District Court reasoned that, “an application for reduction of a property valuation must be filed with the county tax appeal board within 15 days after receiving either a notice of classification and appraisal or a determination after the review provided for in § 15-7-102(3), MCA (1993).” (Emphasis added.) The District Court posed the question as follows: “[w]hether an appeal or request for review is considered ‘filed’ on the date it is placed in the mail by a petitioner[?]” The District Court then concluded that, for purposes of requesting a review with the DOR or appealing to the CTAB, mailing is not the equivalent of filing. Thus, the Court held, since Canbra did not timely “file” either the request for review or the appeal, CTAB did not have jurisdiction to hear Canbra’s appeal.

DISCUSSION

1) Is the mailing of a request for review with the DOR the equivalent of “submitting” a request under § 15-7-102(3), MCA (1993)? [1] Whether a mailing constitutes “submitting” under § 15-7-102(3), MCA (1993), is a question of law. The standard of review for an administrative agency’s conclusions of law is whether its interpretation of the law was correct. Leahy v. Department of Revenue (1994), 266 Mont. 94, 97, 879 P.2d 653, 655 (quoting Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601).

Section 15-7-102(3), MCA (1993), provides in relevant part:

If the owner of any land and improvements is dissatisfied with the appraisal as it reflects the market value of the property as determined by the department or with the classification of the land or improvements, the owner may request an assessment review by submitting an objection in writing to the department, on forms provided by the department for that purpose, within 15 days after receiving the notice of classification and appraisal from the department. ... [Emphasis added.]

Section 15-15-102, MCA (1993), provides in relevant part:

The valuation of property may not be reduced by the county tax appeal board unless either the taxpayer or the taxpayer’s agent makes and files a written application for reduction with the county tax appeal board. The application must be filed on or before the first Monday in June or 15 days after receiving either a notice of classification and appraisal or determination after review under 15-7-102(3) from the department of revenue or its agent, whichever is later. If the department’s determination after review is not made in time to allow the county tax appeal board to review the matter during the current tax year, the appeal must be reviewed during the next tax year, but the decision by the county tax appeal board is effective for the year in which the request for review was filed with the department. ...

In the present case, the District Court held that Canbra’s July 27, 1993, mailing did not constitute a “filing” of a request for reduction of property valuation under § 15-15-102, MCA (1993), within the requisite fifteen days. Rather, the District Court held that “filing” requires that the document be delivered to the designated office such that it is “received” by the clerk or officer in question.

The District Court’s analysis relied on the filing requirement set forth in § 15-15-102, MCA (1993). We note that § 15-15-102, MCA (1993), is somewhat confusing. It speaks of filing a “written application for reduction” rather than filing “an appeal.” However, it then goes on to talk about the CTAB reviewing “the appeal.” Accordingly we treat the filing of an application for reduction of property valuation under § 15-15-102, MCA (1993), as synonymous with filing an appeal to the CTAB. As of 1993, § 15-15-102, MCA (1993), has provided that an application for reduction had to be filed before the first Monday in June or within fifteen days after receiving the DOR assessment review under § 15-7-102(3), MCA, whichever is later. The court’s analysis focused on the requirement that an appellant file his or her appeal within fifteen days after receiving notice of appraisal. However, the District Court ignored the fact that, under § 15-15-102, MCA (1993), the fifteen-day “filing” requirement for an appeal is extended if the taxpayer has “submitted” a timely request for assessment review with the DOR under § 15-7-102(3), MCA (1993). That is, if there were a timely request for assessment review -under § 15-7-102(3), MCA (1993), the requirement that an appeal be “filed” with the CTAB was not triggered until the DOR completed its assessment review and notified the appellant of the results.

The request for assessment review:

Section 15-7-102(3), MCA (1993), does not require that the request for assessment review be “filed.” Instead, it provides that the taxpayer could request an assessment review by “submitting an objection in writing to the department. ...” (Emphasis added.) Section 15-15-102, MCA (1993), allows the taxpayer fifteen days after the DOR’s determination on review to file an appeal. Thus, if a taxpayer “submitted” a timely request for review by the DOR, he or she had fifteen days after receipt of the department’s determination on review to “file” an appeal. In the present case, Canbra mailed its appeal and its request for review on the same day, July 27, 1993. That mailing presents two questions: 1) does a mailing constitute “filing” an appeal with the CTAB; and 2) does a mailing constitute “submitting” an objection to the DOR under § 15-7-102(3), MCA (1993)?

We must first address the question of whether mailing constitutes “submitting” a request for review under § 15-7-102(3), MCA (1993). If we answer that question in the affirmative, then, since the time for “filing” an appeal under § 15-15-102, MCA (1993), was not triggered until the DOR first conducted its assessment review, we need not address the question of whether a mailing satisfied the requirement that an appeal be “filed.”

Tax statutes are to be strictly construed against the taxing authorities and in favor of the taxpayer. Butte Country Club v. Department of Revenue (1980), 186 Mont. 424, 430, 608 P.2d 111, 115. In the instant case, § 15-7-102(3) MCA (1993), required Canbra to “submit” its request for assessment review to the DOR within fifteen days of receiving the appraisal. Here, the issue is whether Canbra’s July 27, 1993, mailing satisfied the requirement that a request be “submitted” within fifteen days of Canbra’s receipt of the appraisal on July 12, 1993.

Although we have not had occasion to interpret the meaning of the term “submit,” we note that the North Dakota Supreme Court in Husebye v. Jaeger (N.D. 1995), 534 N.W.2d 811, 815, addressed the distinction between “filing” and “submitting.” The North Dakota Court was asked to determine the constitutionality of a state statute requiring that referendum petitions be submitted to the Secretary of State by 5:00 p.m. on the day designated as the deadline. The North Dakota constitution does not require that a referendum petition be filed; rather, it provides that it “may be submitted” only within 90 days. Art. II, Sec. 5, N.D. Const. Prior to 1978, the constitution had provided that such petitions be “filed.” In deciding that the petition could be submitted until midnight on the 90th day, the court held:

As construed in the prior cases, “filing” requires not only presentment of the document to the public official, but the officer’s action of accepting it and placing it into the official records of the office for public examination. Similarly, this court has held, in the context of liens, that filing requires more than merely leaving the documents in the office of the appropriate official. Powers Elevator Co. v. Pottner, 16 N.D. 359, 113 N.W. 703 (1907). Filing implies not only presentation, but official action to place the document into the permanent record.

Husebye, 534 N.W.2d at 815. The court then went on to contrast the requirement of “filing” with “submitting.”

By contrast, the term “submit” has a much less restrictive meaning. Webster’s New World Dictionary 1418 (2nd ed. 1982), defines “submit” as “to present or refer to others for decision, consideration, etc.” See also 83 C.J.S. Submit (1953) [“The verb ‘submit’ is defined generally as meaning to present for determination”] . Submitting does not imply any required action on the part of the recipient, but would be complete upon presentation. We conclude that, by changing the constitutional requirement from “filed” within 90 days to “submitted” within 90 days, the people intended a less restrictive requirement. The rationale of those cases holding that petitions must be filed by the close of normal business hours is inapplicable.

Husebye, 534 N.W.2d at 815. We agree that “submit” is a less restrictive requirement than “filing;” that the term “submit” implies that the receiving party is not required to act; that a unilateral action on the part of a taxpayer will suffice. Thus, Canbra’s unilateral act of mailing the AB-26 Form on July 27, 1993, satisfied the statutory requirement that the request be “submitted” to the DOR within fifteen days of its receipt of the appraisal on July 12, 1993.

2) Did the District Court err by finding that the CTAB did not have jurisdiction to hear Canbra’s appeal?

The District Court concluded that because Canbra failed to file its appeal with the CTAB in time, the CTAB lacked jurisdiction to hear its appeal. The District Court explained that Canbra’s letter to the CTAB did not satisfy the requirement that it “file” its appeal within fifteen days of receiving notice of the classification and appraisal. The District Court concluded that the STAB’s decision to dismiss Canbra’s appeal was correct because Canbra’s appeal to the CTAB was not filed in a timely manner.

Canbra’s appeal to the CTAB was based on § 15-15-102, MCA (1993). This statute requires a taxpayer to file an appeal with the county tax appeal board. However, a taxpayer is not required to file an appeal until the first Monday in June or fifteen days after receiving notice of classification and appraisal or determination by the DOR pursuant to § 15-7-102(3), MCA (1993). Section 15-15-102, MCA (1993). Section 15-15-102, MCA (1993), clearly provides that, in the event a taxpayer requests the DOR to conduct an assessment review, the fifteen-day period for filing an appeal does not commence until the DOR has responded to the request for review under § 15-7-102(3), MCA (1993). Thus, since we have held that Canbra’s July 27, 1993 mailing constituted a “submission” of a request for the DOR review under § 15-7-102(3), MCA (1993), it was incumbent upon the DOR to conduct such a review. Until such time as that review has been conducted and Canbra has received notice of the DOR’s determination, the fifteen days for filing an appeal to the CTAB has not yet commenced.

We hold that Canbra’s July 27, 1993 appeal to the CTAB under § 15-15-102, MCA (1993), was premature since, having submitted a request for assessment review, Canbra has until fifteen days after it receives notice of the DOR’s determination in response to the review to file an appeal to the CTAB. If Canbra is aggrieved by the DOR’s appraisal after the review, it can then appeal to the CTAB within fifteen days after receiving notice of the DOR’s determination.

We hold that Canbra submitted a timely request for an assessment review under § 15-7-102(3), MCA (1993); that the DOR has yet to address the merits of that request for assessment review; and that Canbra has fifteen days after receipt of the DOR’s determination of that review within which to file an appeal to the CTAB under § 15-15-102, MCA (1993).

Reversed and remanded for proceeding consistent herewith.

JUSTICES ERDMANN, NELSON, TRIEWEILER and HUNT concur.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BILL J. HENDERSON, Defendant and Appellant.
    No. 95-248.
    Submitted on Briefs June 4, 1996.
    Decided October 17, 1996.
    53 St.Rep. 958.
    278 Mont. 376.
    925 P.2d 475.

      For Appellant: Marcia M. Jacobson, Public Defender Office, Missoula.

      For Respondent: Hon. Joseph P. Mazurek, Attorney General; Barbara C. Harris, Assistant Attorney General, Helena; Robert L. “Dusty” Deschamps, in, Missoula County Attorney; Betty T. Wing, Deputy County Attorney, Missoula.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The defendant, Bill J. Henderson, was charged by information, filed in the District Court for the Fourth Judicial District in Missoula County, with the offense of sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA. Following a trial by jury, Henderson was convicted of the crime with which he was charged. He appeals the judgment of the District Court. We affirm the District Court.

The issue on appeal is whether the District Court abused its discretion when it admitted evidence of “other acts” pursuant to State v. Just (1979), 184 Mont. 262, 602 P.2d 957.

FACTUAL BACKGROUND

In 1984, Henderson lived in Missoula with S.B. and her children from a prior marriage, A.B., D.B., and B.B. In December 1984, the children moved to Anchorage, Alaska, to live with their maternal grandparents. At that time, A.B. told her grandmother, Do.B., that Henderson had sexually abused her. Do.B. immediately took A.B. to a counselor, who notified the police. During the police investigation, the children alleged that, on several occasions, Henderson engaged in sexual intercourse with A.B., and that he also made the children perform simulated sexual acts with one another.

In 1988, Henderson was arrested and charged with two offenses: sexual intercourse without consent, and accountability for incest. Following a trial by jury, Henderson was convicted of both charges. He subsequently fled the jurisdiction, and was not apprehended and sentenced until 1993.

Henderson then appealed to this Court, and in State v. Henderson (1994), 265 Mont. 454, 877 P.2d 1013, we reversed both of his convictions. We concluded that the simulated sexual acts between the children did not constitute incest. On that basis, we ordered the District Court to enter a directed verdict of acquittal on the accountability for incest charge. We also remanded the case for a new trial of the sexual intercourse without consent charge.

In November 1994, Henderson was retried in the District Court for the offense of sexual intercourse without consent. During the pretrial proceedings, the State filed a “Notice of Intent to Introduce Evidence of Other Acts,” in which it asserted the following:

[T]he State ... will seek to introduce ... evidence of other acts that are inseparably related to and conduct simultaneous with the crime charged, for the purpose of proving intent, identity, and common scheme.
The evidence of other acts expected to be presented by the State ... consists of:
1. During the same time period that [Henderson] was having sexual intercourse with [A.B.], he was also having her two young brothers lie on top of her and have intercourse with her ... In prior proceedings [Henderson] asserted mistaken identity as a defense, that it was some other man that sexually assaulted the victim. The boys’ testimony that [Henderson] also had them perform sexual acts on their sister is critical to confirm her testimony that [Henderson] is the perpetrator.

The District Court reviewed the requirements of the modified Just rule, and determined that the proffered evidence of “other acts” satisfied those requirements. Based on that determination, the District Court granted the State’s motion, and admitted the evidence of “other acts.”

At the trial, A.B. testified that, on several occasions, Henderson inserted his penis and fingers into her vagina. D.B. and B.B. testified with regard to the “other acts.” They both testified that Henderson made them perform sexual acts or simulated sexual acts with A.B., their sister.

Henderson testified on his own behalf, and denied all of the children’s allegations. On cross-examination, he stated his opinion that another man had sexually molested A.B.

At the conclusion of the trial, the jury found Henderson guilty as charged. The District Court entered judgment against Henderson, sentenced him to forty years in prison, and declared him ineligible for parole.

DISCUSSION

The issue on appeal is whether the District Court abused its discretion when it admitted evidence of “other acts” pursuant to State v. Just (1979), 184 Mont. 262, 602 P.2d 957.

When we review a district court’s evidentiary ruling, the standard of review is whether the district court abused its discretion. State v. Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054. Furthermore, we recognize that a district court has “broad discretion to determine whether or not evidence is relevant and admissible, and absent a showing of an abuse of discretion, the trial court’s determination will not be overturned.” State v. Romero (1993), 261 Mont. 221, 224, 861 R2d 929, 931.

In Montana, the admissibility of evidence of other crimes, wrongs, or acts is governed by Rule 404(b), M.R.Evid., which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

To insure that evidence of “other acts” is not used as character evidence in contravention of Rule 404(b), M.R.Evid., we have delineated four substantive requirements that must be satisfied before evidence of “other acts” can be admitted. State v. Matt (1991), 249 Mont. 136, 814 P.2d 52. The four-part test promulgated in Matt modifies the rule originally established in Just. The modified Just rule requires that:

(1) The other crimes, wrongs or acts must be similar;

(2) The other crimes, wrongs or acts must not be remote in time;
(3) The evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident;
(4) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Matt, 249 Mont, at 142, 814 P.2d at 56.

Henderson asserts that the District Court erred when it admitted the evidence of his “other acts” of sexual abuse. Specifically, he contends that the evidence of “other acts” was improperly admitted because: (1) the simulated sexual acts are dissimilar to the offense with which he was charged; (2) the evidence is not relevant to a permissible purpose pursuant to which it could be admitted; and (3) the probative value of the evidence is substantially outweighed by the danger of unfair prejudice and confusion of the issues. He concedes, however, that the “other acts” are not remote in time.

Our analysis of Henderson’s appeal, therefore, will involve a review of the first, third, and fourth requirements of the modified Just rule.

SIMILARITY OF OTHER CRIMES, WRONGS, OR ACTS

Henderson asserts that the “other acts” (simulated sexual acts) are dissimilar to the act with which he was charged (sexual intercourse without consent). To support his claim, he points out that the simulated sexual acts did not involve “sexual intercourse” as defined by § 45-2-101(66), MCA, and that he did not actually participate in the simulated sexual acts. Therefore, he contends, the evidence of “other acts” does not satisfy the first requirement of the modified Just rule.

“We have consistently held that the [other] acts do not have to be identical to the charged conduct, only sufficiently similar.” State v. Weldy (1995), 273 Mont. 68, 74, 902 P.2d 1, 5 (citing State v. Tecca (1986), 220 Mont. 168, 172, 714 P.2d 136, 138). In this case, both the “other acts” and the charged offense involved the same victim, and were part of the same series of occurrences. Henderson was responsible for all of the acts; and they were performed solely for his sexual gratification. All of the acts involved Henderson’s sexual manipulation and abuse of the children.

Furthermore, we have stated that “[t]here is no rigid rule for determining when conduct is sufficiently similar, rather, the determination of similarity depends on whether that conduct has some relevance to prove an issue in dispute.” Weldy, 273 Mont. at 75, 902 P.2d at 5 (citing State v. Keys (1993), 258 Mont. 311, 316, 852 P.2d 621, 624). For reasons stated in the following section, Henderson’s other acts were relevant to prove an issue in dispute.

We conclude that the “other acts” are sufficiently similar to the charged offense. Accordingly, we hold that the evidence of “other acts” satisfied the first requirement of the modified Just rule.

PROPER PURPOSES FOR THE ADMISSION OF EVIDENCE OF “OTHER ACTS”

In its “Notice of Intent to Introduce Evidence of Other Acts,” the State asserted that the evidence of “other acts” was admissible to prove identity and common scheme. It is undisputed that, pursuant to Rule 404(b), M.R.Evid., these are permissible purposes. See e.g. State v. Kordonowy (1991), 251 Mont. 44, 49, 823 P.2d 854, 857 (identity); State v. Brooks (1993), 260 Mont. 79, 83, 857 P.2d 734, 737 (common scheme).

Henderson is correct when he recognizes that “merely reciting an allowable purpose is not sufficient if the evidence does not further that purpose or that purpose is not an issue in dispute.” Keys, 258 Mont, at 317, 852 P2d at 625. However, we do not find that to be the case here.

Henderson protested his innocence, and alleged that another man committed the acts of sexual abuse. When he asserted this defense, identity became a disputed issue in the case. The State, therefore, was properly allowed to introduce the evidence of “other acts” to prove that Henderson was, in fact, the perpetrator of the charged offense. We conclude that the evidence of “other acts” made it more likely that A.B. was not mistaken about Henderson’s identity when she accused him of the crime with which he was charged.

We also find merit in the State’s second asserted purpose — common plan or scheme. The evidence of “other acts” helped establish the existence of a common scheme in which Henderson sexually abused and manipulated the children for his own sexual gratification.

We conclude that the evidence of “other acts” was properly admitted to prove Henderson’s identity and common scheme. Accordingly, we hold that the evidence of “other acts” satisfied the third requirement of the modified Just rule.

THE PREJUDICIAL EFFECT DOES NOT SUBSTANTIALLY OUTWEIGH THE PROBATIVE VALUE

Henderson contends that the evidence of “other acts” should have been excluded because its prejudicial effect outweighed its probative value.

We have often recognized that probative evidence will frequently and inevitably be prejudicial to a party. State v. McKnight (1991), 250 Mont. 457, 465, 820 P.2d 1279, 1284; State v. Paulson (1991), 250 Mont. 32, 43, 817 P.2d 1137, 1144. In this case, the evidence of “other acts” was prejudicial, “but because it.satisfies the other requirements of the modified Just rule, such prejudice alone is not a sufficient reason to refuse admission.” Romero, 261 Mont, at 226, 861 P.2d at 932. See also McKnight, 250 Mont. at 465, 820 P.2d at 1284.

For the reasons stated previously in this opinion, we conclude that the evidence of Henderson’s “other acts” had strong probative value, and that the prejudicial effect of the evidence did not substantially outweigh its probative value. Accordingly, we hold that the evidence of “other acts” satisfied the fourth prong of the modified Just rule.

We conclude that the evidence of “other acts” satisfied all four requirements of the modified Just rule. Accordingly, we hold that the District Court did not abuse its discretion when it admitted evidence of Henderson’s “other acts” of sexual abuse.

The judgment of the District Court is affirmed.

JUSTICES HUNT, NELSON, GRAY and LEAPHART concur.


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RUSSELL R. MODDISON, Defendant and Appellant.
    No. 94-330.
    Submitted on Briefs August 1, 1996.
    Decided October 18, 1996.
    53 St.Rep. 961.
    278 Mont. 384.
    926 P.2d 253.

      For Appellant: William F. Hooks, Appellate Defender Office, Helena.
    For Respondent: Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General; Brant Light, Cascade County Attorney, Great Falls.
   JUSTICE HUNT

delivered the Opinion of the Court.

Russell R. Moddison (Moddison) was charged by information filed in the Eighth Judicial District Court, Cascade County, with sexual intercourse without consent, a felony, and obstructing a peace officer, a misdemeanor. Moddison pled guilty to the felony charge as part of a plea agreement, then subsequently moved the District Court to withdraw his guilty plea. The District Court denied Moddison’s motion. Moddison appeals.

We affirm.

The issue for our review is whether the District Court abused its discretion when it denied Moddison’s motion to withdraw his guilty plea.

FACTS

The charges filed against Moddison resulted from an incident which occurred in February 1992 in the vicinity of Great Falls, Montana. Moddison, Robert Gould, Ian Johnson, Jordan Mattfeld, Tammy Archer, and Janetta Jo Clark had been drinking for a few hours at the Black Eagle Country Club when they all decided to go to the residence of Johnson and Mattfeld. At the residence, Clark and Mattfeld had a drinking contest which led to Clark drinking nearly half of a bottle of whiskey. Clark had already had nine drinks at the Black Eagle Country Club.

Clark soon “passed out” in one of the bedrooms. Moddison, Gould, and Johnson then had sex with Clark individually. All three men claimed that Clark consented.

About two hours later Moddison returned to the bedroom to check on Clark and discovered that she was cold to the touch and had no discemable pulse. The coroner later determined that Clark had died at 4:30 a.m., and at the time of death had a blood alcohol level of 0.42 gm/dl. The cause of Clark’s death was asphyxia, prompted by the extraordinarily high level of alcohol in her body.

Moddison and Gould left the residence in Moddison’s truck, but soon abandoned the truck and ran when they saw a Cascade County Sheriff’s vehicle. Moddison was later found by authorities in the basement of his mother’s house. Moddison, Gould, and Johnson were ultimately charged in a joint information with sexual intercourse without consent, or, alternatively, attempted sexual intercourse without consent. Moddison and Gould were also charged with the misdemeanor offense of obstructing a peace officer. The information was later amended to delete the alternative charge of attempted sexual intercourse without consent.

Each defendant was appointed separate counsel and each defendant pled “not guilty” to the charges. Counsel believed that a joint defense would be in their clients’ best interests because each defendant admitted to having sex with Clark but claimed that she had consented to the acts. Later, after a review of the evidence and a discussion with the Cascade County Attorney’s Office, counsel concluded that it would be in their clients’ best interests to enter into a plea agreement deal. Counsel were particularly concerned that evidence of Clark’s extreme intoxication would prevent a jury from finding that she consented to intercourse with the three defendants.

The plea agreement offered by the State required Moddison and Gould to plead guilty to the charge of sexual intercourse without consent, and required Johnson to plead guilty to an amended charge of obstructing a peace officer. In return, the State agreed to drop the misdemeanor charges against Moddison and Gould, and recommend to the court that Moddison and Gould each receive a ten year sentence with five years suspended. However, the State refused to stipulate during plea negotiations that Moddison and Gould would not have to undergo sexual offender treatment, despite the defendants’ adamant belief that the treatment was not appropriate for them. The parties eventually entered into a non-binding plea agreement in which the issue of sexual offender treatment was left to the court’s discretion.

The record reveals that the plea agreement was attractive to counsel because counsel believed that the State’s leniency toward Johnson would effectively prevent the court from punishing Moddison and Gould too harshly. Counsel also believed that the non-binding nature of the plea agreement would allow them to recommend a lesser prison term than the State would recommend. Further, Moddison’s attorney hoped that if his recommendation of a suspended prison term was accepted by the court, then the sexual offender treatment program, if it were imposed, could be completed by Moddison in a local community program.

The record also reveals that Moddison’s attorney informed Moddison of the possibility that he might be sentenced to prison and ordered to undergo a sexual offender program there. Moddison’s attorney testified that he explained to Moddison that his admission that he committed a sexual crime was required before he could successfully complete the program. Moddison steadfastly refused to make that admission, and according to Moddison’s attorney said “if he had to [admit to the crime] he would sit at the prison until he was discharged.” Moddison intended to enter an Alford plea of guilty, in which he could concede the strength of the State’s case against him without admitting that he committed a crime. See North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162.

Moddison’s attorney apparently realized the potential dilemma Moddison would face if, after he entered his Alford plea, the court sentenced him to a prison term and ordered him to undergo sexual offender treatment there: by refusing to admit to his crime, Moddison would be unable to complete the program and thus would likely be ineligible for parole. Moddison’s attorney therefore advised Moddison that if such a sentence were imposed, he could choose from among three remedies: appeal the sentence, seek sentence review, or withdraw the plea.

At the October 18, 1993 change of plea hearing, Gould fired his attorney, withdrew from the plea agreement, and announced his intention to go to trial. Gould was later convicted of sexual intercourse without consent, and this Court affirmed his conviction. State v. Gould (1995), 273 Mont. 207, 902 P.2d 532.

Moddison and Johnson conformed to the plea agreement, and Moddison entered an Alford plea of guilty to the charge of sexual intercourse without consent. Moddison had previously signed the plea agreement and an “Acknowledgment of Waiver of Rights by Plea of Guilty,” and at the hearing Moddison’s attorney went through the waiver of rights and the plea agreement to confirm that Moddison understood their terms. Moddison testified that: he understood that the issue of a sexual offender program was left to the discretion of the court; he understood that the court did not have to abide by the plea agreement; he understood that the court could impose the maximum penalty provided by law; he understood that if the court did not abide by the plea agreement he could not then withdraw his guilty plea; he understood that the court could designate him a dangerous offender as well as limit his eligibility for parole; he understood that he had the option of going to trial; he voluntarily signed the plea agreement; he was satisfied with the services of his attorney; and, he believed he would be convicted of the charge if he went to trial.

Moddison’s plea was accepted by the court and sentencing was set for a later date. In the meantime, the court ordered Moddison to undergo a sexual offender evaluation in Missoula, Montana. Moddison missed three appointments with the Missoula evaluator, claiming that he did not have the money to purchase bus fare from Great Falls to Missoula. Because Moddison had not undergone the evaluation, and because additional offenses were brought to the court’s attention which did not appear in the presentence investigation, the sentencing hearing was continued to May 19, 1994. At the May hearing, the court sentenced Moddison to a ten year prison term with five years suspended. The court also ordered Moddison to complete sexual offender treatment and a chemical dependency program at the prison before being considered for release.

Moddison arrived at the Montana State Prison on May 25, 1994. He soon learned that the sexual offender treatment program had an extensive waiting list and that the program itself took at least three years to complete. On June 9, 1994, Moddison filed two pro se motions, entitled “Notice for Appointment of Counsel” and “Notice of Appeal,” with the District Court. After the District Court failed to act on Moddison’s motions, Moddison filed a motion and brief with this Court. We ordered the District Court to conduct a hearing regarding Moddison’s appointment of counsel motion. The court appointed counsel from the Montana Appellate Defender’s Office to represent Moddison. This Court again remanded Moddison’s case to the District Court after we determined that Moddison’s pro se motions were an attempt to withdraw his guilty plea. After an October 24, 1995 hearing on Moddison’s request to withdraw his guilty plea, the court denied Moddison’s request. Moddison appealed.

STANDARD OF REVIEW

We explained the applicable standard of review in State v. Enoch (1994), 269 Mont. 8, 11, 887 P.2d 175, 177:

No set rule or standard exists under which a trial court addresses a request to withdraw a guilty plea; each case must be considered in light of its unique record. Our standard in reviewing a district court’s denial of a motion to withdraw a guilty plea is whether the court abused its discretion. (Citations omitted.)

DISCUSSION

Did the District Court abuse its discretion when it denied Moddison’s motion to withdraw his guilty plea?

Moddison has four bases for his argument that the court abused its discretion: first, the court failed to inform him that his parole eligibility would be restricted by the requirement that he complete the sexual offender program; second, his request to withdraw was timely and was based on advice of counsel; third, his plea was an Alford plea that was part of a package plea deal; and fourth, his plea was based on the mistaken advice of his attorneys. Moddison’s first three bases track the language of three factors which this Court will balance in determining whether a defendant has established the “good cause” required by § 46-16-105(2), MCA, which would allow him to withdraw a guilty plea:

(1) the adequacy of the court’s interrogation at the time the plea was entered regarding the defendant’s understanding of the consequences of the plea;
(2) the promptness with which the defendant attempts to withdraw the plea; and
(3) the fact that the plea was the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge.

Enoch, 887 P.2d at 177.

With respect to factor (1), Moddison argues that the court’s interrogation was inadequate because it failed to inform him that his parole eligibility could be restricted by his failure to complete the sexual offender program at the prison. Moddison contends that the interrogation should have specifically informed him of the conflict posed by his refusal to admit guilt and the likely sentencing condition that he admit guilt — the first step toward completing the sexual offender program — in order to gain parole eligibility. To support his argument, Moddison cites § 46-12-210, MCA, which provides, in relevant part:

(1) Before accepting a plea of guilty, the court shall determine that the defendant understands the following:
(iii) the maximum penalty provided by law, including the effect of any penalty enhancement provision or special parole restriction;

Moddison also argues that the interrogation was inadequate because the court had little active involvement; Moddison’s own attorney conducted the interrogation.

That Moddison’s attorney, rather than the court, conducted the interrogation in the presence of the court is not reversible error, in light of our determination that the interrogation achieved its fundamental purpose: the determination of Moddison’s understanding of the consequences of entering his plea. The record reveals, as Moddison correctly points out, that the District Court was not actively involved in Moddison’s interrogation at the change of plea hearing. However, the record also reveals that Moddison’s attorney, who conducted the interrogation, ásked Moddison the same questions which we have held constitute an adequate interrogation. In State v. Allen (1994), 265 Mont. 293, 876 P.2d 639, where the court denied defendant’s request to withdraw his Alford plea, we stated:

The transcript of the hearing following Allen’s guilty plea shows that the court carefully questioned him concerning the sufficiency of his legal counsel, his feelings concerning his decision, his lack of alcohol or drug influence, his understanding of the nature of the mitigated deliberate homicide charge, the consequences to pleading guilty to this charge, the fact that the judge would not be bound by any recommendation from the parties, his understanding of the loss of his rights in a trial situation. The court also had Allen confirm the reason why he felt he was guilty of one count of mitigated deliberate homicide. Within the court’s detailed questioning of Allen, the court explicitly informed Allen that the sentence carried a maximum sentence of 40 years. The judge then informed Allen that as the sentencing judge he could put any restrictions on a possible parole that he wished and that he would not be bound by any suggestions from anyone. Further, the court explained in great detail what a guilty plea meant to Allen in terms of foregoing rights such as confrontation of witnesses against him.
In the present case, the court specifically told Allen that he could be denied parole totally and as a consequence would have to serve all 40 years, or that he could be labeled a dangerous offender and that if so designated he would have to serve 20 of the 40 years for the offense. The court clearly informed Allen that it was under no responsibility to accept the conditions of the plea agreement reached by the parties. We conclude that the District Court sufficiently interrogated and informed Allen of the ramifications of his guilty plea.

Allen, 876 P.2d at 641. The extent of information covered in the Allen interrogation is almost exactly the same as that which was covered in Moddison’s interrogation. Furthermore, § 46-12-210(2), MCA, provides that the interrogation requirements of subsection (1) “may be accomplished by the defendant filing a written acknowledgment of the information contained in subsection (1).” Moddison signed an “Acknowledgment of Waiver of Rights by Plea of Guilty” which addressed all of the requirements of § 46-12-210(1), MCA, except one — that Moddison understood the court was not bound by any plea agreement. Moddison was well aware of the court’s discretion, as evidenced by his answers at the interrogation and by the plea agreement, which he signed.

Moddison argues, however, that because he was not questioned about the precise ramifications of his Alford plea in regard to the length of his sentence and limitation on parole, the interrogation was inadequate. We disagree.

The record demonstrates that Moddison was aware that his admission that he committed a crime was a necessary element of successful completion of the sexual offender treatment program. Moddison’s attorney testified that

[Moddison] understood that to progress through a sexual offender program he would have to admit to the offense. He felt — and I believe he took it as a matter of personal honor — that he would not admit to the offense, and if he had to, he would sit at the prison until he was discharged.

The record also demonstrates that Moddison was informed by his attorneys that the sentencing judge did not have to abide by the plea agreement, that Moddison could receive the maximum sentence of 40 years imprisonment, and that Moddison could be ordered to undergo the sexual offender program. In addition, during the interrogation at the change of plea hearing Moddison stated that he understood that the judge did not have to abide by the plea agreement and that his eligibility for parole could be limited by the sentencing judge. As it turned out, Moddison’s eligibility for parole was limited by the sentencing judge when he ordered that Moddison undergo the sexual offender program, a program which Moddison knew from the earliest plea discussions with his attorneys would be impossible to complete without his admission that he committed a crime. We conclude that, despite Moddison’s statements to the contrary, he did know of the consequences of his Alford plea, specifically that his parole eligibility could be limited by the requirement that he complete the sexual offender program, and further limited by his decision not to admit that he committed a crime. Factor (1) weighs in favor of the court’s denial of Moddison’s request to withdraw his plea.

As to the promptness factor, Moddison argues that the length of time between the entry of his Alford plea and his motion to withdraw his plea is within this Court’s allowable time frame. Moddison moved to withdraw his plea on June 9, 1994, approximately eight months after he entered his Alford plea on October 18, 1993. We have held that a ten month period between entry of the plea and the request to withdraw the plea is relatively prompt. State v. Laverdure (1984), 212 Mont. 31, 34-35, 685 P.2d 375, 377.

Alternatively, Moddison argues that his attempt to withdraw his plea was exceedingly prompt when measured from the time that he was sentenced. Moddison argues that the court’s imposition of his sentence should be the measuring point for purposes of the promptness factor because his counsel advised him that sentencing would trigger a plea withdrawal. The State has not addressed the promptness factor in its brief, and because Moddison’s request to withdraw his plea was made within this Court’s allowable time frame, we need not discuss the merits of his alternative argument. The promptness factor weighs in Moddison’s favor.

As to factor (3), Moddison argues that because his plea was a part of a “package” plea agreement, the court was under a duty to carefully examine the voluntariness of Moddison’s plea. Essentially, Moddison argues that his decision to enter a plea was influenced by and conditioned on the deals struck with the other two defendants, Johnson in particular. Moddison cites United States v. Caro (9th Cir. 1993), 997 F.2d 657, 659, to support his contention that the voluntariness of a defendant’s plea is at best questionable when his plea is a part of a “package deal” and conditioned on the pleas entered by the other participants in the deal.

Moddison’s argument, however, misses some important points. First, Gould withdrew from the plea agreement on the day of the change of plea hearing, yet Moddison and Johnson were allowed to go ahead with their pleas. Moddison’s attorneys testified that they understood that when Gould withdrew, there was no longer a “package deal” and Moddison was free to do as he wished. The attorneys discussed this with Moddison, and he entered his Alford plea. Moddison’s plea ultimately was not a part of a package deal with the other defendants; his plea was not conditioned on their pleas.

Second, our review of the record shows that Moddison’s decision to enter an Alford plea was due in large part to the overwhelming evidence against him. Moddison’s attorneys informed him of their conclusion that proving consent would be next to impossible due to Clark’s extreme intoxication at the time of sexual intercourse. In the “Acknowledgment of Waiver of Rights by Plea of Guilty”, Moddison explained why he was entering an Alford plea:

I admit to have sex with Janetta Jo Clark [sic], I believed that she had consented. However, after reading police report [sic] and considering the evidense [sic] against me I believe that the State of Montana can prove my guilt.
Therefore I am pleading guilty.

Moddison was looking after his own interests when he decided to enter his plea, a plea that was not a part of a “package deal.”

Finally, we have stated that “[t]he third factor is intended to prohibit a criminal from ‘escaping the obligations of his [or her] plea agreement after accepting the benefits thereof.’ ” State v. Milinovich (1994), 269 Mont. 68, 74, 887 P.2d 214, 217 (citations omitted). The plea agreement here certainly conferred some benefits upon Moddison: the State dropped the charge of obstructing a peace officer; the State recommended a much lesser sentence than the maximum sentence provided by law; and, the State did not recommend sexual offender treatment, but left that issue to the court’s discretion. We conclude that factor (3) weighs in favor of the court’s denial of Moddison’s request to withdraw his plea.

Moddison has raised another “good cause” indicator, one not specifically provided for by statute or within the three factors. Moddison contends that his guilty plea was based on the mistaken advice of his attorneys. Specifically, Moddison explains that his attorneys represented to him that if he were sentenced to prison and ordered to undergo the sexual offender program there, he would be able to get into the program quickly, due to his probable short term of imprisonment. This information turned out to be inaccurate, as Moddison discovered upon his arrival at the prison that he would be placed on a long waiting list for the program. Moddison also notes that his attorneys advised him that if he were sentenced and ordered to undergo the sexual offender program that he would have three remedies: he could appeal on constitutional grounds; he could pursue sentence review; or he could withdraw his plea. Moddison argues that this advice was mistaken.

While we can concede that some of this advice was inaccurate, we cannot conclude that this “good cause” factor tips the balance in Moddison’s favor. The plea agreement, the “Acknowledgment of Waiver of Rights,” and Moddison’s responses to the interrogation clearly show that Moddison had a solid understanding that his sentence was ultimately subject to the court’s unfettered discretion, Moddison understood that the court could impose any sentence within the range of the statutory minimum and maximum, that the court could restrict his eligibility for parole, and that the court could order him to undergo sexual offender treatment. We cannot see how Moddison can reasonably argue that any inaccuracies in the advice described above mean that his decision to enter into a plea agreement was based on a misunderstanding so fundamental as to render that decision an uninformed one. The record shows that the evidence against Moddison was overwhelming and that this was the reason that his attorneys advised him to enter a plea. The record also shows that Moddison was always aware that his sentence was subject to the court’s discretion. By advising Moddison as they did, the attorneys were merely explaining what they thought potential remedies were for one sentence out of many that Moddison could potentially have received.

After weighing these factors, we conclude that Moddison did not establish the “good cause” necessary for withdrawal of a guilty plea as required by § 46-16-105(2), MCA, and as elaborated in Enoch and its predecessor cases. The District Court did not abuse its discretion when it denied Moddison’s motion to withdraw his guilty plea.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES ERDMANN, NELSON and LEAPHART concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. FRANK FUHRMANN, Defendant and Appellant.
    No. 95-210.
    Submitted on Briefs July 11, 1996.
    Decided October 18, 1996.
    53 St.Rep. 966.
    278 Mont. 396.
    925 P.2d 1162.

      For Appellant: William F. Hooks, Appellate Defender Office, Helena.
    For Respondent: Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Daniel Schwarz, Deputy Yellowstone County Attorney, Billings.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Frank Fuhrmann (Fuhrmann) was charged by information filed in the Thirteenth Judicial District Court, Yellowstone County, with one count of deliberate homicide. After a jury trial, Fuhrmann was found guilty of the crime charged and sentenced to a term of years at the Montana State Prison. Fuhrmann appeals.

We affirm.

Fuhrmann raises two issues on appeal:

1. Did the District Court err in admitting hearsay testimony of statements made by the victim?

2. Did the District Court err in denying Fuhrmann’s motion for a change of venue?

FACTS

This case arose out of a series of events that occurred in Billings, Montana on the evening of July 7, 1993 and into the early morning hours of July 8. At about 7:30 p.m. on July 7, the victim, Charlie Turner (Turner) was given a ride by a friend to the tattoo parlor operated by Fuhrmann. Fuhrmann and Turner had begun a relationship three months earlier when Fuhrmann gave Turner a tattoo in exchange for Turner’s promise to do odd jobs around the tattoo parlor and help with Fuhrmann’s window washing business. When Turner arrived at the tattoo parlor that evening, he and Fuhrmann discussed the rumor that marijuana plants were growing on the Rimrocks area north of Billings. They decided to drive up to investigate. Turner was a 15 year old boy, Fuhrmann a 32 year old adult.

On the way to the Rimrocks, Fuhrmann stopped at his apartment to gather a flashlight, a plastic garbage bag, a blanket, and a Kershaw knife. A Kershaw knife is unique in that different style blades can be inserted into the handle. Fuhrmann chose a fillet blade, inserted it into the handle, and placed the knife in an inside pocket of the black leather jacket he was wearing. Fuhrmann stated that he brought the knife to cut the marijuana plants. Fuhrmann did not inform Turner that he was carrying the knife:

Fuhrmann drove them up to the Rimrocks and parked his car near Swords Park. The two then walked to an area of cliffs overlooking Alkali Creek. There, according to Fuhrmann, they sat on a boulder, smoked cigarettes, and decided that they would search for the marijuana plants the next day during daylight hours. They then began to walk back to Fuhrmann’s car, with Turner in the lead. Fuhrmann was carrying the knife in one hand, the other items in his other hand. Fuhrmann contends that they had not gone more than a few steps when Fuhrmann fell forward, his momentum causing the knife in his outstretched hand to plunge into Turner’s upper right buttock.

According to Fuhrmann, Turner turned around and exclaimed “you have a knife?” then ran off in the direction of Airport Road, the main thoroughfare on top of the Rimrocks. Turner began trying to flag down passing vehicles. Fuhrmann caught up with Turner at the edge of Airport Road, where Fuhrmann contends he offered Turner the knife, handle first, as a gesture of peace. Fuhrmann maintains that Turner grabbed the knife, slashed Fuhrmann across the face, and would have inflicted more damage had Fuhrmann not disarmed Turner during an ensuing struggle. The drivers of vehicles that passed by the scene on Airport Road that night provide information to complete the story of these events.

Dorothy Semmann, who had just left Deaconess Hospital at 11:30 p.m. following her work shift as a nurse, was the first witness on the scene. Ms. Semmann was driving near Alkali Creek on Airport Road when she saw a young man appear from the side of the road into the light cast by her headlights, waving his hands. Her urge to stop to help ended abruptly when she saw another man approaching from the side of the road and she thought she was the intended victim of a car-jacking. Ms. Semmann drove home and called 911. She had not seen blood on either of the men.

Chelsea Kenyon and her friend Amy Vicars were also driving on Airport Road in the area of Alkali Creek that night when two men ran on to the road, the younger of whom approached Ms. Kenyon’s driver’s side window. Ms. Kenyon became frightened and drove on, but curiosity overcame her after a couple of minutes so she drove back to determine what was happening. Ms. Kenyon had not seen blood on either of the men.

When Ms. Kenyon returned, she saw the younger man lying in the road. Two other motorists, Clark Allard and Terrill Bracken, had stopped and were attending to the younger man, Turner. At this point, Ms. Kenyon observed that Turner was lying in a pool of blood, was having difficulty breathing, and was continuing to bleed profusely.

Mr. Allard had arrived at the scene moments before Ms. Kenyon’s return. Mr. Allard slowed his car after he saw two men in the road, one lying on the ground, the other standing above him with one hand holding the prone man’s left leg and the other hand, Allard testified, making a backhand slashing motion over the prone man’s body. As Mr. Allard pulled along side the men, he heard the prone man, Turner, say “Help me. Help me. He stabbed me.” Mr. Allard stopped his car, got out, and began to approach the men, but hesitated after Fuhrmann began walking toward him with a knife in his hand. Mr. Allard then flagged down a passing car driven by Mr. Bracken.

Mr. Bracken disarmed Fuhrmann while Mr. Allard applied pressure to Turner’s numerous stab wounds. At this time, Bracken, Allard, Ms. Kenyon, and Tisha Pfieffer, another motorist who had stopped at the scene, were all witness to statements made by Turner concerning the cause of his injuries: Turner stated that Fuhrmann stabbed him “on purpose,” and that the stabbing was “no accident.” The admissibility of these statements is the subject of the first issue Fuhrmann raises on appeal.

Turner was rushed to Deaconess Hospital, and was unconscious and in shock upon arrival. After more than three hours of surgery, doctors were still unable to stop Turner’s vigorous bleeding. Turner’s massive blood loss caused him to suffer cardiac arrest at about 9:00 a.m., July 8. Turner was pronounced dead at 9:37 a.m. Attending doctors had discovered a dozen separate stab wounds, the most serious of which were a deep wound in Turner’s right buttock and a longer slash across the inner part of his upper right arm which severed his brachial artery. The State offered expert testimony at trial that the wound to Turner’s buttock was nearly 5 inches deep, and that the configuration of the wound suggested that a knife had been inserted and withdrawn in two separate motions. Many of the other wounds were characteristic of wounds received by a person attempting to defend himself from a knife attack.

Fuhrmann was charged by information filed on July 13, 1993, in the Thirteenth Judicial District Court, Yellowstone County, with deliberate homicide. Fuhrmann pleaded not guilty to the crime charged, and subsequently raised the defense of justifiable use of force. Prior to trial, Fuhrmann filed a number of motions in limine. Most importantly for our review was his motion to exclude testimony concerning remarks made by the victim, Turner, to the effect that Fuhrmann’s actions were on purpose or not an accident. The District Court admitted the testimony, and after a jury trial that began March 7, 1994, Fuhrmann was found guilty of the crime charged.

About a week after the conclusion of the trial, Chief Deputy County Attorney Daniel Schwartz received a call from the jury foreman, who wanted to discuss the case. During their conversation, Schwartz discovered that one of the jurors had conducted an experiment dining the course of the trial. Schwartz immediately notified the court and defense counsel, and after a hearing, the court granted Fuhrmann’s motion for a new trial.

Before his second trial, Fuhrmann moved the court for a change of venue due to the publicity his case was receiving in the community of Billings. Fuhrmann informed the court that he had received three separate death threats, all prior to his first trial. The court denied Fuhrmann’s motion. Fuhrmann also renewed the motions in limine he had filed prior to his first trial. Again, the court denied Fuhrmann’s motion to exclude testimony concerning statements made by Turner regarding Fuhrmann’s actions. At the commencement of Fuhrmann’s retrial on October 18, 1994, Fuhrmann again moved for a change of venue. The court denied his motion, and after a jury trial Fuhrmann was found guilty of deliberate homicide and was sentenced to a term of years at the Montana State Prison. Fuhrmann appealed.

ISSUE ONE

Did the District Court err in admitting hearsay testimony of statements made by the victim?

This Court will not overturn a trial court’s evidentiary ruling absent an abuse of discretion. State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063, 1067; State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. Therefore, we must determine whether the District Court abused its discretion in admitting hearsay testimony of statements made by the victim, Turner.

Fuhrmann argues in his briefs submitted to us that testimony regarding Turner’s statements should have been excluded by the District Court because Turner’s statements related to Fuhrmann’s state of mind and thus are inadmissible hearsay. In his motion in limine before the District Court, Fuhrmann had two bases for his argument why the hearsay testimony concerning Turner’s statements should be excluded. First, Fuhrmann argued that Turner’s statements went to Fuhxmann’s state of mind, not his own, and thus were inadmissible hearsay. Second, Fuhrmann argued that, under Rules 701 and 704, M.R.Evid., the testimony was inadmissible because it was layperson opinion testimony which addressed the ultimate issue in dispute, i.e. Fuhrmann’s mens rea. The State responded to the motion on each of these two bases, and the court denied the motion.

On appeal, the State initially presents a procedural argument as to why this Court should not review this issue raised by Fuhrmann. The State contends that Fuhrmann has a different basis for his argument on appeal than he did at the District Court level. The State is correct in asserting that this Court adheres to the rule that “a party may not change the theory on appeal from that advanced on the District Court.” State v. Henderson (1994), 265 Mont. 454, 458, 877 P.2d 1013, 1016. However, Fuhrmann’s argument before this Court, that Turner’s statements are inadmissible hearsay because they relate to Fuhrmann’s state of mind, is one of the two arguments that Fuhrmann raised at the District Corut level.

While Fuhrmann’s argument below did not cite Rule 803(3), M.R.Evid., specifically, it clearly referred to that Rule’s “state of mind” exception to the hearsay rule. Fuhrmann points us to two federal cases interpreting Rule 103(a)(1), Fed.R.Evid., identical in substance to Rule 103(a)(1), M.R.Evid., which hold that specific objection is required “only where the specific ground would not be clear from the context.” Werner v. Upjohn Co., Inc. (4th Cir. 1980), 628 F.2d 848, 853; see also United States v. Musacchia (2d Cir. 1990), 900 F.2d 493, 497. Moreover, this Court has approved the use of a motion in limine to preserve an objection for appeal, State v. Weeks (1995), 270 Mont. 63, 85, 891 P.2d 477, 490 (citing State v. Brown (1984), 209 Mont. 502, 506-07, 680 P.2d 582, 584-85), provided the objecting party makes the basis for his objection clear to the district court. Weeks, 891 P.2d at 490.

In his Fifth Motion in Limine, dated March 4, 1994, Fuhrmann states:

The statements attributed to Turner relate to the alleged state of mind and intent of Fuhrmann. While a witness can testify about his/her state of mind, that witness cannot testify about the state of mind of another. The court has to ask itself the question, Tf a witness were asked, “Did he do it on purpose?”, would the court allow the witness to answer the question?’

The District Court did not formally rule upon this motion prior to Fuhrmann’s first trial. However, Fuhrmann renewed all of his motions in limine prior to his retrial. At that time, the District Court denied Fuhrmann’s Fifth Motion in Limine, but noted Fuhrmann’s objection to the admission of the statements and relieved him of any obligation to object again at trial. We conclude that the basis for Fuhrmann’s argument in his motion in limine was clear. His argument before us is grounded in the same theory as was his argument below. Fuhrmann properly preserved his objection and it is appropriate that we review it.

Fuhrmann contends that testimony by those who witnessed Turner state that Fuhrmann stabbed him “on purpose” and that the stabbing was “not an accident” is inadmissible hearsay and should have been excluded by the District Court. Hearsay is

a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Rule 801(c), M.R.Evid. Generally, hearsay is inadmissible, but the rules of evidence provide certain exceptions. Rule 803(3), M.R.Evid. provides an exception for

[a] statement of the declarant’s then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed.

Fuhrmann argues that because Turner’s statements regarding Fuhrmann’s intent address Fuhrmann’s state of mind, the statements do not fall within the exception provided by Rule 803(3) and therefore any testimony concerning these statements is inadmissible hearsay. Fuhrmann also argues that Turner’s statements that Fuhrmann purposely stabbed him are statements of belief to prove the fact believed, precisely what is disallowed by the last clause in the text of Rule 803(3).

The State argues that Turner’s statements do address his own state of mind, and thus fit within the hearsay exception provided by Rule 803(3). The State contends that by claiming justifiable use of force, Fuhrmann opened the door for the State to rebut his defense with Turner’s statements, which indicated Turner’s fear of Fuhrmann and that Turner did not believe that he initiated or provoked the stabbing. The State cites State v. Losson (1993), 262 Mont. 342, 348, 865 P.2d 255, 258, and State v. Magruder (1988), 234 Mont. 492, 496, 765 P.2d 716, 719, to support its contention.

The State also raises alternative arguments, that Turner’s statements fit within two other exceptions to the hearsay rule. We decline to discuss these arguments, as the record reveals that the State has raised them for the first time on appeal. Henderson, 877 P.2d at 1016.

Some of the analysis and logic in the arguments proposed by both Fuhrmann and the State is creative, but not entirely correct. Both the State and Fuhrmann cite Magruder and Losson in their respective briefs, and both failed to discuss important points raised in those cases.

In Magruder, this Court affirmed the district court’s admission of testimony of a victim’s statements. The victim’s daughter testified that the victim “seemed worried after the [telephone] conversation [with the defendant] and told her that he’d better be ‘packing a piece’ because Mr. Magruder would be packing a piece and would be [at their home] later.” Magruder, 765 P.2d at 717. The majority concluded that the victim’s statements avoided the hearsay bar because they fit within the “state of mind” exception provided by Rule 803(3), M.R.Evid. The majority determined that the statements were evidence of the victim’s state of mind, that he was afraid of the defendant. Magruder, 765 P.2d at 718-19. Defendant had raised the defense of justifiable use of force, and the majority concluded that evidence that the victim feared the defendant was relevant. Magruder, 765 P.2d at 719 (citing United States v. Brown (D.C. Cir. 1973), 490 F.2d 758, 767). The majority pointed out that the statements were not offered for their truth, but only to show the victim’s state of mind. In support, the majority noted that the district court had given a limiting instruction to the jury, that the testimony was

not offered to prove the truth of the matter asserted, but rather to show the victim’s then existing state of mind. You are to consider the statements only in regard to the victim’s state of mind and for no other purpose.

Magruder, 765 P.2d at 718.

The dissent in Magruder, which relied heavily on Brown, 490 F.2d 758, stated that “the majority’s handling of the hearsay problem skims too lightly over the very problematic nature of the testimony.” Magruder, 765 P.2d at 720 (Sheehy, J., dissenting). The dissenting justices were concerned that the testimony, if it indeed was admissible under the “state of mind” exception to the hearsay rule, was in any event so prejudicial to the defendant as to be incurable by the court’s limiting instruction. Magruder, 765 P.2d at 720-21 (Sheehy, J., dissenting). Although the following point was not raised in the dissent, after our review of Magruder we note that while the majority on the one hand concluded that the victim’s statements fit within the “state of mind” hearsay exception, Magruder, 765 P.2d at 718, it on the other hand concluded that the statements were not offered for their truth, but only to show the victim’s state of mind. Magruder, 765 P.2d at 719. In Losson, a later case, this Court cleared up this discrepancy.

In Losson, where the defendant raised the defense of justifiable use of force, we affirmed the district court’s admission of testimony of the victim’s statements. The victim’s statements, like the victim’s statements in Magruder, indicated his fear of the defendant. We concluded that the statements were relevant, Losson, 865 P.2d at 258, and then analyzed their admissibility under the hearsay rule. Citing Brown, 490 F.2d at 762-63, we stated:

That court delineated the distinction between hearsay and non-hearsay as it related to state of mind evidence. The distinction turns on whether the statement is evidence which directly proves the declarant’s state of mind or whether the statement is evidence which circumstantially proves the declarant’s state of mind.

Losson, 865 P.2d at 259 (emphasis added).

The testimony at issue in Losson involved three statements made by the victim. The victim had stated that the defendant “threatened to kill him in the past,” and that the defendant “would kill him if he ever moved out.” We concluded that “these statements circumstantially indicated [the victim’s] state of mind toward [the defendant]; that he feared her.” Losson, 865 P.2d at 259. We explained further:

The jury was instructed not to consider whether [the defendant], in fact, threatened to kill or would kill [the victim]. Instead, the jury was instructed to consider [the victim’s] state of mind; whether he was afraid of [the defendant]. We hold that the first two statements were not hearsay.

Losson, 865 P.2d at 259.

We concluded that the third statement made by the victim in Losson was direct evidence of the victim’s state of mind. The third statement was that the victim “was afraid of his wife and thought she was going to kill him.” Since the statement contained direct evidence of the victim’s state of mind, we determined that the State necessarily was offering the statement for its truth, and that the statement therefore was hearsay. Losson, 865 P.2d at 259. However, we held that the statement fit into the exception provided by Rule 803(3) and was admissible. Losson, 865 P.2d at 259.

Based upon our analyses in Magruder and Losson, we reach the following conclusions in the instant case. First, Turner’s statements that Fuhrmann stabbed him “on purpose” and that the stabbing was “not an accident,” if they can be construed as providing evidence that Turner feared Fuhrmann, can only be construed as providing circumstantial evidence of Turner’s fear. Under that construction, the statements would be considered non-hearsay and would be admissible. Losson, 865 P.2d at 259. However, such statements must be offered only for the purpose of showing the declarant’s state of mind, and may not be offered for the truth of the matters asserted. Where we have upheld a district court’s admission of such statements, we have considered the fact that the district court issued a limiting instruction to the jury explaining the purpose for which it could consider the statements. Magruder, 765 P.2d at 718; Losson, 865 P.2d at 259.

After reviewing the record in the instant case, we find no indication that the District Court, in denying Fuhrmann’s motion to exclude testimony regarding Turner’s statements, limited the purpose for which the testimony could be offered. For that matter, there is nothing in the record which would explain why the District Court admitted the testimony at all. More importantly, the transcripts reveal that the District Court did not at any time issue limiting instructions to the jury explaining why the testimony was being offered.

To prevent any potential prejudicial effect on a defendant, and to uphold the integrity of both the hearsay rule and Rule 803(3)’s “state of mind” exception, a trial court must instruct the jury as to the limited purpose for which it may consider this type of testimony. However, both the trial court and this Court must keep a vigilant eye toward the possible prejudicial effect of such testimony even if a limiting instruction is given.

We hold that the District Court abused its discretion in admitting testimony of Turner’s statements without also giving a limiting instruction as to why the testimony was being offered and how the jury was to consider it. However, we consider this error to be harmless, due to the independent evidence in the record upon which á jury could base a guilty verdict: Turner had been stabbed at least twelve times; one of Turner’s most serious wounds, the wound to his buttock, was received before he and Fuhrmann reached the Airport Road; and, the description of the wound to Turner’s buttock given by his attending physicians and by a State crime lab expert was inconsistent with Fuhrmann’s claim that he accidentally stabbed Turner when he tripped and fell forward with a knife in his outstretched hand.

Our conclusion that the District Court’s error was harmless is consistent with this Court’s previous holdings regarding the harmless error doctrine. Where federal constitutional error, such as improper jury instruction, is involved, we have applied the harmless error rule established by the United States Supreme Court in Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-11: for error to be harmless, it must be shown beyond a reasonable doubt that the error did not contribute to the verdict obtained. State v. Rothacre (1995), 272 Mont. 303, 312-13,901 P.2d 82, 88; State v. McKenzie (1980), 186 Mont. 481, 532, 608 P.2d 428, 458. In considering the prejudicial effect of a district court’s erroneous evidentiary ruling, a matter of state law, this Court has stated that “[t]he essential question is whether there is a reasonable possibility that the inadmissible evidence might have contributed to the conviction.” Brodniak v. State (1989), 239 Mont. 110, 115, 779 P.2d 71, 74; State v. Gray (1983), 207 Mont. 261, 268, 673 P.2d 1262, 1266. This Court has noted that the federal harmless error rule and Montana’s harmless error rule are essentially the same, and that in either case overwhelming evidence of a defendant’s guilt can render harmless a district court’s error. McKenzie, 608 P.2d at 458; Brodniak, 779 P.2d at 74. We conclude that there was overwhelming evidence of Fuhrmann’s guilt, and that the District Court’s error did not contribute to his conviction. We hold that the error was harmless.

ISSUE TWO

Did the District Court err in denying Fuhrmann’s motion for a change of venue?

This Court will not disturb a district court’s denial of a motion for change of venue absent an abuse of discretion. State v. Moore (1994), 268 Mont. 20, 51, 885 P.2d 457, 477 (overruled on other grounds, State v. Gollehon, (1994), 274 Mont. 116, 906 P.2d 697). Therefore, we must determine whether the District Court abused its discretion in denying Fuhrmann’s motion for a change of venue.

Section 46-13-203(1), MCA, states that a defendant is entitled to move for a change of place of trial on the ground that there exists in the county in which the charge is pending such prejudice that a fair trial cannot be had in the county.

Further, a motion for change of venue must be granted

when it appears there are reasonable grounds to believe that the prejudice alleged actually exists and that by reason of the prejudice there is a reasonable apprehension that the accused cannot receive a fair and impartial trial.

State v. Link (1981), 194 Mont. 556, 559-60, 640 P.2d 366, 368 (citing People v. Berry (Ill. 1967), 226 N.E.2d 591, 592-93).

Fuhrmann argues that there are three grounds upon which a court could reasonably believe that prejudice actually existed in the Billings community at the time of his retrial. First, Fuhrmann points to three separate death threats that he received prior to his first trial as indicative of the inflamed passions in the community. Second, he claims that the large number of potential jurors excused for cause and the large number of potential jurors who had knowledge of the case prior to the retrial reflected the widespread prejudice in the community. Third, Fuhrmann contends that certain newspaper reports in the Billings Gazette constituted prejudicial pretrial publicity and contributed to the community-wide prejudice.

We dispose of Fuhrmann’s first ground by noting that the death threats were received prior to his first trial, where Fuhrmann did not move for a change of venue. Fuhrmann does not allege that he received any additional death threats prior to his retrial. As we are reviewing the District Court’s denial of Fuhrmann’s motion for change of venue in the context of his retrial, we see no need to address this ground.

As to Fuhrmann’s second ground, we do not agree that the fact that a large number of potential jurors had prior knowledge of his case is prejudicial and warrants a change of venue. We have held that jurors’ knowledge of the case and publicity, without more, is insufficient to warrant a change of venue since it cannot be equated with prejudice. State v. Smith (1986), 220 Mont. 364, 378, 715 P.2d 1301, 1309; see State v. Ritchson (1982), 199 Mont. 51, 55, 647 P.2d 830, 832. Moreover, it appears from the record that the court was particularly careful to question individually those jurors who indicated that they had some prior knowledge of the case, and instructed the potential jurors and the jurors ultimately chosen of their duty to render a verdict based solely on the evidence presented at trial. We see no reason to question the District Court’s exercise of discretion in relation to this ground presented by Fuhrmann.

Finally, we cannot agree with Fuhrmann that certain newspaper articles in the Billings Gazette constituted prejudicial pretrial publicity and contributed to a community-wide prejudice. A defendant seeking change of venue on the ground of prejudicial pretrial publicity must prove two elements. First, the defendant must show that the publication at issue was inflammatory. Second, the defendant must show that the publication actually inflamed the prejudice of the community to the extent that a reasonable possibility exists that he may not receive a fair trial. Ritchson, 647 P.2d at 832. The first element focuses on the nature of the publicity while the second focuses on the effect. Ritchson, 647 P.2d at 832.

In State v. Nichols (1987), 225 Mont. 438, 734 P.2d 170, we described inflammatory publicity as

editorializing on the part of the media or any calculated attempt to prejudice public opinion against [defendant] or to destroy the fairness of the pool from which [defendant’s] prospective jurors would be drawn.

Nichols, 734 P.2d at 173-74 (quoting State v. Armstrong (1980), 189 Mont. 407, 423, 616 P.2d 341, 350). The District Court read the copies of eleven news reports from the Billings Gazette attached to Fuhrmann’s motion for change of venue, dated August 19, 1994, and did not discover any instances of “editorializing” or “calculated attempts to prejudice public opinion.” The District Court found that the reports merely contained factual accounts of the background of the case as well as the trial proceedings. Fuhrmann notes that some reports contain references to his criminal history and to the prosecution’s initial theory that Fuhrmann had sexually assaulted Turner. However, we conclude, as did the District Court, that these bare statements were a part of “standard news accounts of court events and filed information,” news accounts that were “devoid of editorializing.”

To support his contention that the news reports inflamed the prejudice of the community, Fuhrmann points to the death threats he received prior to his first trial, the number of potential jurors in the jury pool with prior knowledge of the case, and a survey conducted by a Montana State University professor which established the Billings community’s awareness of Fuhrmann’s case. We have already explained our unwillingness to consider the death threats received prior to the first trial as indicators of alleged prejudice surrounding the retrial some six months later. We have also disposed of Fuhrmann’s argument regarding potential jurors with prior knowledge of the case; the record shows that the District Court carefully and thoroughly questioned jurors who admitted to having prior knowledge of the case, and, satisfied with the panel ultimately chosen, instructed that group of its duty to render a verdict based only on evidence produced at trial.

Finally, after reviewing the Montana State University professor’s survey, we would have to agree with the District Court’s characterization of it: “inconclusive.” 81% of the nearly 450 persons questioned in the survey stated that they had heard of Fuhrmann’s case. Of that percentage, 49% said they had an opinion of Fuhrmann’s guilt or innocence, and the remainder either did not have an opinion or didn’t know. Nearly all who had an opinion believed Fuhrmann to be guilty, but only about half claimed it would be very difficult to change their opinion. From the information elicited in the survey we cannot conclude that pretrial publicity inflamed prejudice in the Billings community, especially in light of our determination that the news reports were not facially inflammatory. See Moore, 885 P.2d at 478.

We are aware that surveys are appropriate means of determining whether prejudice exists in a community. State v. Paisley (1983), 204 Mont. 191, 194, 663 P.2d 322, 324. Where we have acknowledged a survey’s results as supporting a court’s grant of a motion to change venue, we have noted the connection between the results of the survey and extensive editorializing by the local newspaper against the defendant. Paisley, 663 P.2d at 324.

In Paisley, a criminologist’s survey submitted prior to defendant’s justice court trial concluded that the likelihood of defendant receiving a fair trial depended upon the extent of further trial publicity. The justice court trial received “editorialized” publicity, and defendant’s motion for change of venue of his district court trial was granted by the district court and affirmed by this Court. Here, we conclude that there was no editorializing by the Billings Gazette against Fuhrmann. There can be no connection indicating prejudicial publicity— the type of connection we contemplated in Paisley — between the Montana State University survey and the Gazette news reports. See Moore, 885 P.2d at 478.

A passage from Moore, where we disagreed with defendant’s claim that prejudicial pretrial publicity mandated a change of venue, summarizes our conclusions here:

Living, as we do, in a society which is continuously inundated with news coverage by the print and broadcast media, it is doubtful that most members of the community will not share some knowledge of, or about, a locally high-profile crime, and the various persons allegedly involved in its commission or its investigation. Given the inevitable conflict with the media’s constitutional right to free speech, the public’s constitutional right to know, and the accused right to a fair trial, it remains the task of the district court, in such cases, to scrupulously examine the evidence supporting a motion for change of venue to insure that the jurors who will ultimately decide the guilt or innocence of the accused are fair minded and uninfluenced by what they may have seen, heard, or read. That conclusion must necessarily be based upon not only the jurors’ responses in voir dire, but also on a careful analysis of the quantity and content of the pretrial publicity. Each case is unique and must be decided on its own merits. [State v. Bousquet, (1991), 248 Mont. 53.], 808 P.2d [506] at 508. While this was a difficult case, we are nonetheless satisfied that the trial judge conscientiously considered this issue, and that despite the pervasiveness of the media coverage, it was generally balanced and fair. We conclude that the jurors who decided [defendant’s] fate were not disposed to guilt or innocence by what they may have seen, heard, or read in the media.

Moore, 885 P.2d at 479. The standard that must be met in order for a change of venue motion to be granted is the existence of “reasonable grounds to believe that the prejudice alleged actually exists and that by reason of the prejudice there is a reasonable apprehension that the accused cannot receive a fair and impartial trial.” Link, 640 P.2d at 368 (citation omitted). After reviewing the record, we hold that the District Court did not abuse its discretion when it denied Fuhrmann’s motion for change of venue, impliedly concluding that such reasonable grounds did not exist.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, LEAPHART and ERDMANN concur.


text:
    IN RE THE MARRIAGE OF ADRIAN G. WALLS a/k/a A.G. WALLS and/or JOE WALLS, Petitioner and Respondent, and MARILLEN WALLS, Respondent and Appellant.
    No. 95-279.
    Submitted on Briefs July 25, 1996.
    Decided October 18, 1996.
    53 St.Rep. 974.
    278 Mont. 413.
    925 P.2d 483.

      For Appellant: Joan Meyer Nye, Nye & Meyer, Billings.
    For Respondent: Don LaBar, Church, Harris, Johnson & Williams, Great Falls.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Marillen Walls (Marillen) appeals the decision of the Ninth Judicial District Court, Toole County, dissolving her marriage to Respondent Adrian G. Wells (Joe) and dividing the marital estate. We affirm.

ISSUES

The following issues are dispositive of this appeal:

1. Did the District Court’s err in its valuation of the marital estate?

2. Did the District Court’s err in its distribution of marital property and debts?

3. Did the District Court err by denying maintenance to Marillen?

4. Did the District Court err by denying attorney’s fees to Marillen?

5. Did the District Court err by substantively adopting Joe’s proposed findings of fact?

FACTS

Joe and Marillen were married in 1983. They separated in 1991 and divorced in 1994. No children were bom of the marriage, although each party has a minor son from a former marriage. At the time of the divorce, Joe was 66 and Marillen was 34. Before and during the marriage, Joe worked in the oil and gas business, managing his own corporation, A & G Drilling, as well as his other oil and gas interests. Marillen did not work outside of the home during the marriage, except to occasionally ran an errand for Joe’s business.

When Joe and Marillen were married, Joe’s oil and gas interests were valued at in excess of $2 million. At the time of the divorce, the oil and gas interests had decreased in value to between $500,000 and $1,000,000. In dividing the marital property, the District Court awarded the entirety of these interests to Joe, but also made Joe responsible for all debts attendant to them. Marillen was awarded her car, jewelry, furniture, clothing, and various bank accounts. Marillen appeals this division of the marital estate.

STANDARD OF REVIEW

The standard of review of a district court’s division of marital property is whether the court’s findings of fact are clearly erroneous. In re Marriage of Hogstad (1996), 275 Mont. 489, 496, 914 P.2d 584, 588. If substantial credible evidence supports the district court’s judgment, it will not be disturbed absent an abuse of discretion. Hogstad, 914 P.2d at 588; In re Marriage of Meeks (1996), [276 Mont. 237], 915 P.2d 831, 834.

Further, the district court has broad discretion in determining the value of property in a dissolution. It may adopt any reasonable valuation of marital property which is supported by the record, and its findings regarding property valuation will not be disturbed unless clearly erroneous. Meeks, 915 P.2d at 835 (quoting In re Marriage of Robinson (1994), 269 Mont. 293, 888 P.2d 895). In dividing a marital estate, the district court must reach an equitable distribution, not necessarily an equal distribution. In re Marriage of Barker (1994), 264 Mont. 110, 114, 870 P.2d 86, 88 (citing In re Marriage of Shelton (1986), 219 Mont. 456, 712 P.2d 782).

DISCUSSION

1. Did the District Court err in its valuation of the marital estate?

Marillen alleges that the District Court erred in its valuation of the marital estate because the court failed to determine the net worth of the marital assets at or near the time of the dissolution. Instead, the District Court valued the assets given to Joe at the time of trial but valued the assets given to Marillen at the time of separation.

Generally, a district court must determine the net value of the marital estate at or near the time of dissolution, prior to dividing the property. In re Marriage of Lippert (1981), 192 Mont. 222, 627 P.2d 1206; In re Marriage of Stephenson (1989), 237 Mont. 157, 772 P.2d 846. However, this Court has recognized that “under [some] circumstances, selection of a single evaluation point for determining net worth of the parties could create an inequitable disposition.” Lippert, 627 P.2d at 1208. A net valuation by the district court therefore is not always mandatory. Rather, “the test is whether the findings as a whole are sufficient to determine the net worth and to decide whether the distribution is equitable.” Stephenson, 772 P.2d at 848 (citing In re Marriage of Nunnally (1981), 192 Mont. 24, 625 P.2d 1159).

In this case, several assets last known to be in Marillen’s possession had disappeared by the time of trial. In particular, Marillen claimed that two diamond rings, other jewelry, and a large amount of cash were stolen from her car during the time the parties were separated. The District Court valued these missing assets at close to $30,000 and charged their loss against Marillen’s share of the estate. It found that, if these items were in fact stolen, the loss resulted from her negligence and carelessness in keeping such items in her car. In effect, the District Court determined that Marillen had dissipated this part of the estate. Such dissipation can justify a district court’s selection of separate valuation dates for the estates of the respective parties. In re Marriage of Hurley (1986), 222 Mont. 287, 297, 721 P.2d 1279, 1286.

Marillen also disputes the inclusion of $5000 in her share of the estate, when she had used that money to pay a retainer to her attorney prior to trial. Again, the District Court found that such payment was properly charged to Marillen as an expense incurred on her behalf during the separation. For this reason, it valued the asset as if it were still in her possession. Under the facts of this case, the valuation of the parties’ assets at different times was not an abuse of discretion.

2. Did the District Court err in its distribution of marital property and debts?

Marillen also disputes the District Court’s apportionment of the marital estate. As noted above, the District Court allotted to Joe all of the oil and gas interests, which are, at least in theory, income-producing, as well as the debts associated therewith. At the same time, the District Court allotted to Marillen the household furnishings, her car, her clothing and her jewelry. Marillen asserts that it was clearly erroneous for the court to divide the marital estate in this manner. Specifically, she asserts that the District Court erred in awarding all the oil and gas interests to Joe.

Section 40-4-202(1), MCA, provides in part:

In dividing property acquired prior to the marriage ... the court shall consider those contributions of the other spouse to the marriage, including:
(a) the nonmonetary contribution of a homemaker;
(b) the extent to which such contributions have facilitated the maintenance of this property; and
(c) whether or not the property division serves as an alternative to maintenance arrangements.

In this case, the oil and gas business was owned and operated by Joe prior to the marriage. While some of the specific interests were sold and others acquired during the marriage, the business as a whole did not change, and it continued to be managed solely by Joe throughout the marriage. In considering the factors listed in § 40-4-202(1), MCA, the District Court found that, while Marillen had made limited contributions as a homemaker, her contributions had not facilitated the maintenance of the oil and gas interests.

Moreover, the division of the marital estate in this case was premised not only on the fact that Joe brought the oil and gas interests into the marriage, but also on the recognition that those interests carry substantial debts and have decreased in value significantly during the time of the marriage. At the time of the marriage, Joe’s net worth exceeded $2 million. Because of the depression in the oil and gas industry, Joe’s net worth at trial had decreased to between $500,000 and $1,000,000. This net worth reflected over $350,000 in debts attendant to the business, but did not include the future expense of plugging the depleted wells, which the District Court estimated would cost well over $1,000,000.

In this case, the District Court chose to return the parties to the approximate positions they occupied before the marriage. While such a result is not required, it is permissible if the resulting apportionment is equitable. In re Marriage of White (1985), 218 Mont. 343, 345, 708 P.2d 267, 269. When, as here, the marriage was of relatively short duration and the husband’s net worth has significantly decreased, such a division is not inequitable. See, e.g., In re Marriage of Turbes (1988), 234 Mont. 152, 762 P.2d 237. Given that Joe’s business interests predate the marriage, have decreased in value during the marriage, and were not facilitated or maintained by Marillen, the District Court’s division of the marital estate was an equitable one.

3. Did the District Court err by denying maintenance to Marillen?

Marillen next alleges that the District Court erred by denying her request for maintenance. She contends that the District Court’s finding that she is able to support herself through appropriate employment is clearly erroneous.

Section 40-4-203(1), MCA, provides in part:

In a proceeding for dissolution of marriage or legal separation ... the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
(a) lacks sufficient property to provide for his reasonable needs; and
(b) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

In this case, the District Court determined that Marillen was able to support herself through appropriate employment. It found that she is relatively young and in good health, while Joe is retired and unable to meet his own expenses because of a monthly loan payment exceeding $5000. Further, it noted that Marillen has secured work as a waitress and should be able to meet her own monthly expenses without an award of maintenance. These findings were supported by the evidence presented and are not clearly erroneous.

4. Did the District Court err by denying attorney’s fees to Marillen?

Marillen claims that the District Court erred by denying her claim of attorney’s fees. Section 40-4-110, MCA, provides:

The court from time to time, after considering the financial resources of both parties, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 and 4 of this title and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.

This statute is discretionary; while it allows the District Court to award attorney fees if warranted, it does not mandate such a result. A district court’s determination regarding attorneys fees will not be disturbed in the absence of an abuse of discretion. In re Marriage of Sullivan (1993), 258 Mont. 531, 540, 853 P.2d 1194, 1200.

Here, , the District Court awarded Marillen assets totalling over $65,000. While the majority of premarital assets were awarded to Joe, the disproportionate nature of the property division does not automatically entitle Marillen to attorneys fees. The District Court found that Marillen had the financial ability to pay her own fees. Given the value of the property she was awarded, this determination was not an abuse of discretion.

5. Did the District Court err by substantively adopting Joe’s proposed findings of fact?

The District Court adopted many of Joe’s proposed findings of fact and conclusions of law as its own in this case. Marillen asserts this adoption was error.

As we have repeatedly noted, adoption of one party’s proposed findings and conclusions is not in itself grounds for reversal. In re Marriage of Stufft (1996), [276 Mont. 454], 916 P.2d 767, 769 (citing In re Marriage of Purdy (1988), 234 Mont. 502, 764 P.2d 857). If proposed findings and conclusions are adopted by the court, they become the court’s own and, as such, are reviewed for clear error and correctness of law. Stufft, 916 P.2d at 769 (citing Daines v. Knight (1995), 269 Mont 320, 888 P.2d 904; and Kreger v. Francis (1995), 271 Mont. 444, 898 P.2d 672). Here, we have reviewed the District Court’s findings of fact and judge that they are supported by the record and are not otherwise clearly erroneous.

A thorough review of the record in this case reveals no reversible error. The decision of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES TRIEWEILER, LEAPHART and ERDMANN concur.