author: CHIEF JUSTICE TURNAGE JUSTICE SHEEHY,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. THOMAS FREDERICK KRANTZ, Defendant and Appellant.
    No. 88-129.
    Submitted Dec. 12, 1989.
    Decided Mar. 1, 1990.
    Rehearing Denied Mar 27, 1990.
    788 P.2d 298.

      William Boggs argued, Missoula, and Wendy Holton argued, Helena, for Appellant.
    Marc Racicot, Atty. Gen., Helena, Patti Powell, Asst. Atty. Gen., argued, Helena, Robert L. Deschamps, III, County Attorney, Missoula, Fred Van Valkenburg, Deputy, Missoula, for Plaintiff and Respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Thomas Krantz appeals his criminal conviction and sentence for robbery and accountability for robbery following a jury trial in the Fourth Judicial District Court, Missoula County. We affirm.

ISSUES

1. Did the District Court err in allowing repeated references to a series of similar crimes in the Missoula area after the State agreed at the omnibus hearing not to introduce other crimes evidence?

2. Did the District Court abuse its discretion by failing to provide adequate reasons to justify the sentence and the dangerous offender designation?

3. Did the District Court violate the appellant’s due process rights in applying the weapon enhancement statute and the dangerous offender statute?

FACTS

Near midnight on May 24, 1987, a masked gunman using a rusted chrome or stainless steel pistol held up the Missoula Domino’s Pizza. One week later at about 1:30 a.m. on June 2, an armed robber held up the Missoula Orange Street Inn. Near the Inn, responding sheriff’s officers spotted a car matching the description of a vehicle seen at a prior robbery. The officers stopped the car and detained the passenger, Greg Jellison, and the driver, appellant Thomas Krantz. A search of the suspects and their car produced rolls of coins taken from the Orange Street Inn and a chrome-plated, .38 special handgun. Witnesses later identified the appellant as the Domino’s Pizza robber.

Between May 19 and June 2, 1987, five other robberies following a common pattern had occurred in the Missoula area. In addition to Domino’s Pizza and the Orange Street Inn, Pickle-O-Pete’s, the Snow King Restaurant, the Village II, the Campus Inn Motel, and the Executive Motor Inn were also robbed. The State charged Krantz with the Domino’s Pizza, Pickle-O-Pete’s, and the Snow King robberies and with accountability in the Orange Street Inn holdup.

At the pretrial omnibus hearing, the State agreed not to introduce other crimes evidence. Prior to trial, the State informed the District Court that it would elicit testimony concerning the series of robberies to help explain the actions of police officers and victims. The court held that the testimony did not fall within the definition of other-crimes evidence and, therefore, did not trigger the procedures set out in State v. Just (1979), 184 Mont. 262, 269, 602 P.2d 957, 961. During trial, witnesses and state prosecutors referred repeatedly to the series of robberies without defense objection. The court admonished the jury on several occasions about the limited purposes of such evidence.

The jury found the appellant guilty of accountability in the Orange Street Inn holdup and guilty of robbery in the Domino’s Pizza holdup, but not guilty of the robbery of Pickle-O-Pete’s and the Snow King Restaurant. The District Court sentenced the appellant to thirty years on each conviction and added ten years to each for use of a weapon. The court ordered the forty-year sentences to run concurrently and designated the appellant a dangerous offender. The defendant now appeals the conviction, sentence enhancement, and dangerous offender designation.

OTHER CRIMES EVIDENCE

The appellant contends that the State’s references during trial to the series of Missoula robberies violated both the substantive and procedural requirements of Just. We decline to reach this issue because the appellant failed to object to the controverted evidence at any time before or during trial. Failure to object to alleged other crimes evidence precludes consideration of the issue on appeal. State v. Warnick (1982), 202 Mont. 120, 125, 656 P.2d 190, 193.

The appellant cites State v. Brown (1984), 209 Mont. 502, 680 P.2d 582, for the proposition that the appellant’s failure to object is not a defense when the omnibus order prohibited the introduction of other crimes evidence. Brown is distinguishable. In Brown, we held that the defendant’s motion in limine to exclude evidence of prior acts and the trial court’s order requiring ten days notice of such evidence were sufficient to preserve the issue for appeal. Brown, 209 Mont. at 506-07, 680 P.2d at 584-85. Here, the appellant at no time disapproved of the evidence or disagreed with the District Court’s finding that it was not other crimes evidence. The record shows that the appellant declined the trial court’s offer to instruct the jury on other crimes evidence. The objection requirement prevents the defendant from consciously planting errors in the trial proceedings and then raising those errors as grounds of appeal. State v. Stroud (1984), 210 Mont. 58, 73, 683 P.2d 459, 467. The appellant cannot now complain of prejudice from other crimes evidence when he did not discern any prejudice at trial.

SENTENCING COURT’S STATEMENT OF REASONS

The appellant argues that in sentencing the District Court failed to consider the presentence report and gave inadequate reasons for the sentence and the dangerous offender designation.

During sentencing the District Court stated,

“[Y]ou have . . . shown a consistent pattern of endangering other people. Therefore, on the basis of your record and the nature of these crimes, I sentence you on each of the two counts to thirty years in the Montana State Prison, ten extra consecutive to those on each of those two counts for the use of a weapon, and designate you a dangerous offender . . . .”

The written judgment stated,

“A Pre-sentence Investigation Report was ordered and the Court having received and reviewed the report and being fully advised as to the facts of this case ....
“Reasons for the sentence are:
1. Defendant’s criminal record;
2. Serious nature of offense; and
3. Consistent pattern of endangering other people.”

The sentencing court is required by statute to state for the record its reasons when imposing sentence. Section 46-18-102(3)(b), MCA. This rule complies with basic fairness by acknowledging the defendant’s right to be informed of the reasons for his sentence. It also facilitates review by this Court and the Sentence Review Board. State v. Petroff (1988), 232 Mont. 20, 22, 757 P.2d 759, 761, 45 St.Rep. 833, 835.

We have generally upheld minimal statements of sentencing reasons. In State v. Petroff we held that, “[t]he recommendations of the Pre-sentence Investigation [and] [t]he Defendant’s prior criminal record” provided a sufficient statement. Petroff, 757 P.2d at 761, 45 St.Rep. at 835. In State v. Johnson, we upheld a sentence based on the “[defendant's history of alcohol and driving offenses” coupled with the presentence report. Johnson (1986), 221 Mont. 503, 518, 719 P.2d 1248, 1257.

We hold that the District Court’s statement of reasons in this case is sufficient. Whether the sentence and dangerous offender status are supported by the presentence investigative report is a question more properly raised before the Sentence Review Division. See Rule 16, Rules of the Sentence Review Division of the Montana Supreme Court.

CONSTITUTIONALITY OF SENTENCE ENHANCEMENT

Standing

The State contests the appellant’s standing to challenge the constitutionality of the procedure used to enhance his sentence for use of a weapon and to designate him a dangerous offender. To challenge the constitutionality of a criminal statute or procedure, the defendant must show a direct, personal injury resulting from application of the law in question. State v. Bruns (1984), 213 Mont. 372, 380-81, 691 P.2d 817, 822. The State argues that because the appellant’s sentence, including enhancement, did not exceed the maximum possible sentences for robbery and accountability, the appellant suffered no injury.

We disagree with the State and hold that the appellant has standing to challenge both the weapon enhancement statute and the dangerous offender statute. The appellant faces direct injury to his liberty interest. See State v. Nichols (1986), 222 Mont. 71, 78, 720 P.2d 1157, 1162. Under the weapon enhancement statute, he faces ten years in prison in addition to thirty years for the underlying crimes. See § 46-18-221(1), MCA. Under the dangerous offender statute, he will spend up to ten extra years in prison prior to parole eligibility. See § 46-23-201(2), MCA.

Separate Crimes and Elements

The appellant argues that under several United States Supreme Court decisions the Montana statute proscribing use of a weapon in the commission of a crime, § 46-18-221, MCA, and the statute restricting parole eligibility, § 46-18-404 MCA, are distinct crimes separate from the underlying offense or are elements of the underlying offense. As such, the prosecution must charge use of a weapon and dangerous offender status in the information or indictment, they are questions of fact for the jury, and they must be proven beyond a reasonable doubt. The appellant asserts that because the State failed to meet any of these criteria, his enhanced sentence violated the United States constitutional guarantee of trial by jury under the Sixth Amendment and guarantee of due process under the Fourteenth Amendment.

In Specht v. Patterson (1967), 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326, the Supreme Court addressed the due process ramifications of using sentence-enhancement factors in place of elements of a crime. The State of Colorado convicted Specht of indecent liberties under a statute which carried a maximum penalty of ten years, but sentenced him without further notice or hearing under Colorado’s Sex Offenders Act. The Act provided that after reviewing the defendant’s psychiatric evaluation the trial court would determine if the defendant was a threat of bodily harm to the public, a habitual offender, or mentally ill. If the court so found, the defendant could be incarcerated for an indeterminate term of one day to life. Specht, 386 U.S. at 607-08, 87 S.Ct. at 1211, 18 L.Ed.2d at 328-29. The Court reversed the sentence holding that because the sentencing procedure required determination of new factual issues under a discrete statute, due process entitled the defendant to full trial procedures on those issues. Specht, 386 U.S. at 609-10, 87 S.Ct. at 1212, 18 L.Ed.2d at 330.

In the case of In re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, the Supreme Court considered the constitutionality of incarcerating a juvenile for larceny under the New York Family Court Act. The Act required that facts of juvenile misbehavior be determined only by a preponderance of the evidence. Winship, 397 U.S. at 360, 90 S.Ct. at 1070, 25 L.Ed.2d at 373. After recounting the history and policy behind the reasonable doubt standard, the Court reversed the case stating,

“Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.”

Winship, 397 U.S. at 364, 90 S.Ct. at 1073, 25 L.Ed.2d at 375.

In Mullaney v. Wilbur (1975), 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508, the Supreme Court applied its statement in Winship. Under Maine law proof of an intentional and unlawful homicide raised a conclusive presumption of malice aforethought and, therefore, murder. If, however, the defendant proved by a fair preponderance of the evidence that he committed the homicide in the heat of passion on sudden provocation, the homicide would be reduced to manslaughter. Mullaney, 421 U.S. at 691-92, 95 S.Ct. at 1886, 44 L.Ed.2d at 515. The Supreme Court held that under the principles established in Winship, absence of the heat of passion on sudden provocation was a factual element of murder which the prosecution must prove beyond a reasonable doubt. Mullaney, 421 U.S. at 704, 95 S.Ct. at 1892, 44 L.Ed.2d at 522. The Court noted its principal concern that if it allowed states unfettered discretion to define the elements of a crime,

“a State could undermine many of the interests [In re Winship] sought to protect without effecting any substantive change in its law. It would only be necessary to redefine the elements that constitute different crimes, characterizing them as factors that bear solely on the extent of punishment.”

Mullaney, 421 U.S. at 698, 95 S.Ct. at 1889, 44 L.Ed.2d at 519.

In two recent cases, the Supreme Court limited the broad ramifications of Specht, Winship, and Mullaney to give the states greater latitude in defining the elements of a crime and factors mitigating and aggravating sentencing. In Patterson v. New York (1977), 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281, the Supreme Court upheld New York’s murder statutes which reduced murder to manslaughter if the defendant proved by a preponderance of the evidence the affirmative defense of acting under the influence of extreme emotional disturbance. Patterson, 432 U.S. at 205, 97 S.Ct. at 2324, 53 L.Ed.2d at 289. Apparently recognizing the near impossible burden created by Mullaney, the Court stated that it is not necessary that “a State must prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of punishment.”

Patterson, 432 U.S. at 207, 97 S.Ct. at 2325, 53 L.Ed.2d at 290.

In its most recent decision on the subject, McMillan v. Pennsylvania (1986), 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67, the Supreme Court considered whether the Pennsylvania Mandatory Minimum Sentencing Act withstood due process scrutiny under the Specht-Mullaney-Patterson line of decisions. The Act required the sentencing court to impose at least a five-year minimum sentence for the underlying crime if the court found by a preponderance of the evidence that the defendant had visible possession of a firearm while committing a crime. The Court distinguished Specht and Mullaney in holding that under Patterson, the Pennsylvania Act did not violate due process. McMillan, 477 U.S. at 91, 106 S.Ct. at 2419, 91 L.Ed.2d at 79.

The appellant argues that the present case is controlled by Specht, Winship, and Mullaney. Under these decisions, due process requires that whenever a factual determination could lead to punishment beyond the maximum provided for the underlying crime, that issue must be treated as a separate crime or as an element of a crime. The defendant would be entitled to notice, a hearing, an opportunity to present evidence and confront witnesses, and a requirement that a jury find the fact beyond a reasonable doubt — in other words, a trial on the issue. In the present case, the appellant would be entitled to have the issues of weapon usage and dangerous offender status included as issues during the robbery and accountability trial instead of considered by the court during sentencing.

The appellant distinguishes Patterson and McMillan because the statutes at issue in those cases did not increase the maximum sentence possible for the underlying crime. Like the present appellant, the Specht and Mullaney defendants faced sentences in addition to those imposed for the underlying crimes based on determinations of new issues of fact. In the appellant’s interpretation, these cases teach that once all facts which would allow a maximum sentence have been proved beyond a reasonable doubt, other factors which increase or decrease the sentence within the maximum may be considered without full due process procedures. They may be affirmative defenses to be proved by the defendant, or they may be sentencing factors to be applied by the court. On the other hand, factors which would increase the sentence beyond the maximum for the underlying crime are separate crimes or elements of a crime subject to full trial procedures.

We do not believe that the Supreme Court intended such a narrow interpretation. The message of Patterson ands McMillan is that the decision to designate specified factors as elements of a crime, as affirmative defenses, or as sentencing factors, is fundamentally a decision left to the states. In McMillan the Court restated the basic premise of Patterson-.

“It goes without saying that preventing and dealing with crime is much more the business of the States than it is of the Federal Government and that we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion, and its decisions in this regard is not subject to proscription under the Due Process Clause unless it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”

McMillan, 477 U.S. at 85, 106 S.Ct. at 2415-16, 91 L.Ed.2d at 76 (quoting Patterson, 432 U.S. at 201-02, 97 S.Ct. at 2322, 53 L.Ed.2d at 286-87). (Citations and quotations omitted.) The McMillan Court emphasized that, while due process imposes some limits beyond which the states may not go, application of the reasonable doubt standard has always depended on how state legislatures choose to define a crime. McMillan, 477 U.S. at 85, 106 S.Ct. at 2415, 91 L.Ed.2d at 75.

We do not believe that the system established by the Montana legislature goes beyond the permissible limits. The Supreme Court refused to establish any “bright line” test of those limits, McMillan, 477 U.S. at 86, 106 S.Ct. at 2416, 91 L.Ed.2d at 76, and we decline the appellant’s invitation to establish one based on the maximum sentence of the substantive crime. The Court’s primary concern in this series of cases is that states would circumvent due process by redefining the essential elements of guilt as affirmative defenses or as sentencing factors.

Montana’s weapon enhancement statute and dangerous offender statute do neither. The 1977 Montana Legislature adopted the weapon enhancement statute as part of a bill intended to limit the discretion of sentencing courts by establishing guidelines and minimum mandatory sentences for potentially violent crimes. Consideration of H.B. 261 Before the Senate Judiciary Comm. 45th Leg. (1977) (statement of Rep. Ramirez). Like the Pennsylvania statute challenged in McMillan, the Montana statute simply takes one factor traditionally used in sentencing, the use of a weapon during a crime, and dictates the minimum weight the court must assign. See McMillan, 477 U.S. at 89-90, 106 S.Ct. at 2418, 91 L.Ed.2d at 78-79. Similarly, the 1977 Legislature intended the dangerous offender statute to restrict the discretion of the parole board by limiting the parole eligibility of violent and repeat offenders. Consideration of H.B. 385 Before the House Judiciary Comm. 45th Leg. (1977) (statements of Sen. Thomas and Hank Burgess, Bd. of Pardons). The statute takes a traditional factor in determining parole eligibility, the danger to society, and dictates the precise weight to be assigned. Furthermore, in bills establishing both statutes, the Legislature directed that they be codified in the Revised Codes of Montana at Title 95, Montana Code of Criminal Procedure, Chapter 22, Sentence and Judgment. Act approved April 8, 1977, ch. 340, § 1, 1977 Mont. Laws 1050; Act approved May 13, 1977, ch. 584, § 13, 1977 Mont. Laws 1958, 1964. At that time substantive criminal statutes were codified in Title 94, Crimes and Criminal Procedure, Chapters 1 through 46. The elements of the underlying crime in this case, robbery, have remained essentially the same since territorial times. Compare § 45-5-401, MCA (1989) with Laws of Mont. Ch. VI, § 71 (1879).

The Montana weapon enhancement statute contains a number of elements similar to those found in substantive criminal statutes, but those elements do not make it a separate crime. The enhancement statute contains a recidivist provision, requires a mental state of knowingly, and may require a finding of fact, use of a weapon, not necessary to establish guilt of the underlying crime. The recidivist provision carries out the statute’s purpose by limiting the sentencing court’s discretion in imposing increased punishment for repeat offenders. The mens rea requirement protects the defendant by imposing on the court an additional and appropriate finding in determining weapon usage. All sentencing factors may, and often do, require the court to consider facts not established during trial. These elements are as much pertinent and necessary attributes of traditional sentencing considerations as they are attributes of substantive crimes.

The appellant cites cases of the United States Supreme Court and the Circuit Courts of Appeals which have held that the federal weapon enhancement statute and other enhancement-type statutes are separate crimes. The State counters that those cases are based on statutory construction and not due process considerations. The State cites numerous cases in which the federal courts held that enhancement statutes, even when they impose penalties beyond the maximum allowed for the substantive crime, did not create separate crimes and did not violate due process.

While both arguments are persuasive, we do not find either convincing. To paraphrase McMillan, the fact that Montana and the federal government have formulated different statutory schemes to punish armed felons is merely a reflection of our federal system, which demands tolerance for a spectrum of state and federal procedures dealing with a common problem of law enforcement. See McMillan, 477 U.S. at 90, 106 S.Ct. at 2418, 91 L.Ed.2d at 79.

This Court has repeatedly held that Montana’s weapon enhancement statute does not create a separate crime or element of a crime. State v. Forsyth (1988), 233 Mont. 389,_, 761 P.2d 363, 384, 45 St.Rep. 1577, 1602; State v. Spurlock (1987), 225 Mont. 238, 241, 731 P.2d 1315, 1317; State v. Davison (1980), 188 Mont. 432, 445, 614 P.2d 489, 497. We reaffirm those decisions. The Montana legislature has chosen a scheme which makes dangerous offender status and use of a weapon sentencing factors. So long as that scheme remains constitutional, it is not the province of this Court to transmute these statutory factors into separate crimes or elements of crimes.

Due Process in Sentencing

The appellant argues that even if the weapon enhancement and dangerous offender designation are not separate crimes, application of those statutes still violate the Fourteenth Amendment because the prosecution failed to give adequate notice by stating in the charging document its intention to seek an enhanced sentence and dangerous offender designation.

Montana recognizes that due process applies to sentencing, but the defendant’s liberty interest during sentencing is less than that interest during trial. State v. Nichols (1986), 222 Mont. 71, 76, 720 P.2d 1157, 1161. The process that is due, therefore, is not necessarily as great as that required by the substantive criminal charges. The defendant is entitled to reasonable notice and an opportunity to be heard during sentencing. Oyler v. Boles (1962), 368 U.S. 448, 452, 82 S.Ct. 501, 504, 7 L.Ed.2d 446, 450.

Notice of the sentencing hearing itself provides sufficient notice of potential dangerous offender designation because the statute requires the sentencing court to consider the issue. Nichols, 222 Mont. at 78, 720 P.2d at 1162. As a practical matter, the criminal defendant is always on notice. The State’s failure to give more notice in this case did not violate the appellant’s due process rights.

Because enhancement of a sentence for the use of a weapon is not an issue in every case, due process requires the State to provide some notice in the charging document, Forsyth, 233 Mont. at_, 761 P.2d at 384, 45 St.Rep. at 1602, if the issue is not inherent in the definition of the substantive charges, Davison, 188 Mont. at 446, 614 P.2d at 497. The charge of robbery does not necessarily entail use of a weapon. See § 45-5-401, MCA. The State’s failure to allege use of a weapon in the charging document, therefore, was error.

The error, however, was harmless. The State alleged use of a weapon in its affidavit and motion for leave to file information. Furthermore, the record indicates that the prosecution repeatedly elicited testimony that the appellant and his accomplice used a handgun during the robberies and the weapon enhancement statute requires the sentencing court to impose an additional minimum sentence when a weapon is used. The appellant had actual notice that use of a weapon would be a consideration during sentencing. See State v. Madera (1983), 206 Mont. 140, 152, 670 P.2d 552, 558.

We conclude that the sentence imposed by the trial court did not violate the appellant’s right to due process.

Affirmed.

JUSTICES HARRISON, McDONOUGH, WEBER and BARZ concur.

JUSTICE SHEEHY,

concurring and dissenting:

A general definition of crime is a union of act and mental state banned by the law. In Montana, mental state is found in the use of the adverbs “knowingly” and “purposely.” However, the legislature may define an act as a crime without requiring mental state. When that is done, the banned act is one that brings on absolute liability. The Montana statute states:

“45-2-104. Absolute liability. A person may be guilty of an offense without having, as to each element thereof, one of the mental states described in subsection (33) [knowingly], (37) [negligently], and (58) [purposely] of 45-2-101 only if the offense is punishable by a fine not exceeding $500 or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.” (Emphasis added.)

In this case, the penalty for using a gun imposes a jail term. The question whether the legislature intended to impose absolute liability for the use of a gun in committing a felony must be found in the statute defining the gun penalty. It must clearly indicate a legislative purpose to impose absolute liability for the conduct described.

It cannot be found in this case that the legislature intended to impose absolute liability for the use of a gun in committing a felony because it interposed the mental state word “knowingly” in its definition of the act. The statute states:

“46-18-221. Additional sentence for offenses committed with a dangerous weapon. (1) A person who has been found guilty of any offense and who, while engaged in the commission of the offense, knowingly displayed, brandished, or otherwise used a firearm ... or other dangerous weapon shall, in addition to the punishment provided for the commission of such offense, be sentenced to a term of imprisonment in the state prison of not less than 2 years nor more than 10 years . . .
“(4) An additional sentence prescribed by this section shall run consecutively to the sentence provided for the offense.” (Emphasis added.)

In this case, .who found that Krantz acted “knowingly” in using a firearm to commit a felony? Certainly the jury did not, because the use of a firearm was not alleged in the charging information, nor was it contained in the instructions of the court. The court itself, at the time of sentencing, made no reference to whether Krantz acted “knowingly” in brandishing the firearm.

The crime of robbery in Montana can be proved by the state without a showing that a dangerous weapon was used. The statute provides:

“45-5-401. Robbery. (1) A person commits the offense of robbery if in the course of committing a theft he:
“(a) inflicts bodily injury upon another;
“(b) threatens to inflict bodily injury upon any person or purposely or knowingly puts any person in fear of immediate bodily injury; or
“(c) commits or threatens immediately to commit any felony other than theft.”

The penalty for committing the offense of robbery is a state prison term of not less than two years nor more than 40 years and a fine of not more than $50,000. Section 45-5-401, MCA.

Thus, the use of a dangerous weapon in the commission of a robbery is an aggravating factor, for which an additional penalty may be imposed under § 46-18-221, MCA.

In Jordan v. U.S. Circuit Court for the District of Columbia (D.C. Cir. 1956), 233 F.2d 362, 367 (vacated on other grounds 352 U.S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114 (1956)) where defendant had been convicted of assault with intent to commit robbery and was given an additional five year term of imprisonment under a statute allowing such where the crime was committed with a pistol or firearm, the court vacated the additional sentence stating:

“. . . where the aggravation arises from the manner which the crime was committed, in substance a different aspect of the offense is sought to be punished. Accordingly, we think . . . that the facts in aggravation must be charged in the indictment and found to be true by the jury.”

If the legislature had merely provided that the use of a gun in the commission of a felony would automatically lead to the increased penalty, there would be no problem here. However, the legislature inserted the word “knowingly,” as an element in the use of the gun. This element requires a fact-finding, and a fact-finding can only be done in criminal cases by a jury. In effect, the use of a gun is a separate offense, for which every element must be proved beyond a reasonable doubt. In Re Winship (1970), 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368. Because of the insertion of the word “knowingly,” we should in effect overrule State v. Madera (1983), 206 Mont. 140, 670 P.2d 552; State v. Davison (1980), 188 Mont. 432, 614 P.2d 489; and not regard the holding by the Court of Appeals for the Ninth Circuit in LaMere v. Risley (9th Cir. 1987), 827 F.2d 622.

There is an additional factor why we should require fact-finding by the jury with respect to the use of a firearm. There is a recidivist provision in § 46-18-221, MCA, as follows:

“(2) A person convicted of a second or subsequent offense under this section shall, in addition to the punishment provided for the commission of the present offense, be sentenced to a term of imprisonment in the state prison of not less than 4 years or more than 20 years, except as provided in 46-18-222. For the purpose of this subsection, the following persons shall be considered to have been convicted of a previous offense under this section:
“(a) a person who has previously been convicted of an offense, committed on a different occasion than the present offense, under 18 U.S.C. 924(c); and
“(b) a person who has previously been convicted of an offense in this or another state, committed on a different occasion than the present offense, during the commission of which he knowingly displayed, brandished, or otherwise used a firearm, destructive device, as defined in 45-8-332(1), or other dangerous weapon.
“(3) The imposition or execution of the minimum sentence prescribed by this section may not be deferred or suspended, except as provided in 46-18-222.
“(4) An additional sentence prescribed by this section shall run consecutively to the sentence provided for the offense.”

The following factors, therefore, should require us to find that gun-toting in the commission of a crime is a separate issue or offense which must be charged in the information and found by the jury:

(1) The forbidden act of brandishing a firearm.

(2) The forbidden act done knowingly.

(3) The punishment being separate and mandatory.

(4) Additional penalties for recidivism.

I would, therefore, affirm the conviction of Krantz for the felony offense but reverse the enhancement of his sentence that relates to the use of a firearm for the reason that the separate offense was not separately charged and found by the jury. There are Due Process and Sixth Amendment implications here not met in our statute.

JUSTICE HUNT concurs with JUSTICE SHEEHY.

        FOOTNOTES

      1. The State’s argument that the appellant gains standing only if his sentence exceeds the maximum potential sentence allowed for the substantive crime, depends on the appellant’s contention that his right to due process was violated when the trial court enhanced his sentence beyond that limit without the full panoply of due process procedures. Since we do not accept enhancement beyond the maximum for the underlying crime as establishing a threshold of due process violation, it also does not establish a threshold for injury and, thereby, standing.

      . United States v. Sudduth (10th Cir. 1972), 457 F.2d 1198, 1201 (holding that, although Congressional intent was ambiguous, 18 U.S.C. § 924(c), proscribing use of a weapon during a felony, creates a distinct crime and, therefore, could not be used to enhance a sentence after a substantive charge of weapon usage had been dropped); accord Simpson v. United States (1978), 435 U.S. 6, 10, 98 S.Ct. 909, 911-12, 55 L.Ed.2d 70, 75 (holding that the federal weapon statute cannot be used to increase punishment under the federal bank robbery statute which includes a weapon enhancement provision); see also Garrett v. United States (1985), 471 U.S. 773, 786, 105 S.Ct. 2407, 2415, 85 L.Ed.2d 764, 776 (holding that in passing 21 U.S.C. § 848, proscribing continuing criminal enterprises, Congress intended to create a distinct crime).

      . See e.g. United States v. Inendino (7th Cir.), 604 F.2d 458, 463 (18 U.S.C. § 3575, dangerous special offender statute), cert. den. 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 190 (1979); United States v. Darby (11th Cir. 1984), 744 F.2d 1508, 1538 (21 U.S.C. § 849, dangerous special drug offender statute) cert. den. sub nom. Yamanis v. United States, 471 U.S. 1100, 105 S.Ct. 2322, 85 L.Ed.2d 841 (1985); United States v. West (9th Cir. 1987), 826 F.2d 909, 911 (18 U.S.C. § 1202(a), armed career criminal statute).

      . The appellant also argues that the Montana weapon enhancement statute creates an aggravated version of robbery and the aggravating element, use of a weapon, must be pled and proved. Having concluded that use of a weapon is a sentencing factor and not an element of a crime, we do not find it necessary to address this argument further.


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    ROBERT D. RICHTER, Claimant and Respondent, v. SIMMONS DRILLING, INC., Employer, and Industrial Indemnity Company, Defendant and Appellant.
    No. 89-138.
    Submitted on Briefs Oct. 25, 1989.
    Decided Mar. 2, 1990.
    788 P.2d 308.

      David A. Hopkins; Marra, Wenz, Johnson & Hopkins, Great Falls, for defendant and appellant.
    Tom L. Lewis; Regnier, Lewis and Boland, Great Falls, for claimant and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Simmons Drilling and Industrial Indemnity Company, defendants and appellants, appeal from an order of the Workers’ Compensation Court, which found that Industrial Indemnity is liable for Workers’ Compensation benefits and must indemnify the State Compensation Insurance Fund for work related injuries sustained by Robert Richter, claimant and respondent. Industrial Indemnity also appealed a subsequent order of the Workers’ Compensation Court denying modification of record on appeal. These appeals have been consolidated.

We affirm the Workers’ Compensation Court.

The following issues are raised on appeal:

1. Whether the Workers’ Compensation Court erred when it denied Industrial Indemnity’s motion to modify the record under Rule 9(f), M.R.App.P.

2. Whether the Workers’ Compensation Court properly found that Industrial Indemnity was the insurer on risk at the time of claimant’s second injury thereby subjecting Industrial Indemnity to liability for Workers’ Compensation benefits and, if so, whether Industrial Indemnity must indemnify the State Fund for benefits paid to claimant since that time.

On July 5, 1984, Richter was involved in an accident while employed by Generals Wells Service. Specifically, he was hit by a high pressure power hose, which resulted in a compound fracture of his left leg for which he was hospitalized five days. Richter also sustained a back injury that became apparent May 8, 1985. General Wells Service was insured for Workers’ Compensation by the State Fund at the time of the accident and the State Fund commenced paying benefits and has continued to pay benefits to Richter since that date.

Richter’s injury was treated by various physicians, including Dr. Lovitt, whom he first saw on January 7, 1985. Dr. Lovitt treated Richter’s leg injury and on March 20, 1985, released Richter to work without restrictions because he believed Richter’s condition to be medically stable.

On May 20, 1985, a scan of Richter’s back depicted a small disc herniation. While Dr. Lovitt diagnosed Richter as being 50 percent partially disabled, he again released Richter to work based on Richter’s medically stable condition. On June 6, 1985, Dr. Lovitt wrote Richter a letter cautioning him that while the injury was rather small, it would be best to “sit back and wait, and have you assume as high [an] inactivity level as possible and observe your symptoms.”

On June 26, 1985, Richter began employment with Simmons Drilling as an oil field worker. Simmons Drilling was insured for Workers’ Compensation by Industrial Indemnity at that time. On June 27, 1985, Richter injured his back lifting a pipe that weighed approximately 250 to 300 pounds. Richter finished his shift but the next day was bedridden. On June 28, 1985, Richter was treated by Dr. Lovitt for the back injury.

On August 19, 1985, Richter filed a claim for Workers’ Compensation with Industrial Indemnity based on his June 27, 1985, injury. Industrial Indemnity moved to join the State Fund as an additional defendant but the motion was denied. The parties agreed to forego a hearing and submitted the matter on briefs. The testimony of Richter and Dr. Lovitt was presented to the Workers’ Compensation Hearings Examiner by deposition.

On March 1, 1989, the hearings examiner filed his findings of fact and conclusions of law and proposed judgment with the Workers’ Compensation Court. That same day, the court issued an order adopting the findings of fact and conclusions of law of the hearings examiner and entered judgment, which provided that Industrial Indemnity was the insurer on risk when Richter’s June 27, 1985, accident occurred and that Industrial Indemnity was liable for temporary total disability benefits of $286 per week. The court also found that the State Fund was entitled to indemnification from Industrial Indemnity for benefits that the State Fund had paid Richter after the June 27, 1985, injury.

The judgment was deemed final on March 1, 1989, and notice of appeal to this Court was filed on March 21, 1989. On July 27, 1989, Industrial Indemnity filed a motion to modify the record on appeal with the Workers’ Compensation Court. The motion was denied on October 24, 1989. On November 17, 1989, Industrial Indemnity filed notice of appeal from the Workers’ Compensation Court order denying modification of the record and, on November 28, 1989, filed a motion to consolidate the modification appeal with its March 20, 1989 appeal. This Court granted Industrial Indemnity’s motion to consolidate the appeals on December 29, 1989.

The first issue to be discussed on appeal is whether the Workers’ Compensation Court erred when it denied Industrial Indemnity’s motion to modify the record under Rule 9(f), M.R.App.P.

The Workers’ Compensation Court, in its order denying Industrial Indemnity’s motion to modify record on appeal, stated that, “Defendant has not presented good cause for reopening the record and adding additional evidence at this stage of the litigation.” We agree.

Industrial Indemnity contends that the original record on appeal was void of certain medical records because it had not been provided with the records in its request for production of documents nor had it discovered the records prior to the determination of the issue in Workers’ Compensation Court. Richter, however, contends through counsel’s affidavit, that he did provide Industrial Indemnity the medical records in his possession at the time of the request but that the records in question were not in the possession of the claimant or his counsel nor were they in existence at the time of Richter’s response to request for production and, therefore, were impossible to produce at the time requested.

Industrial Indemnity relies on Rule 9(f), M.R.App.P., in making its motion. Rule 9(f), M.R.App.P., provides:

“If any difference arises as to whether the record truly discloses what occurred in the district court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the district court, either before or after the record is transmitted to the supreme court, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to the supreme court.” (Emphasis added.)

To prevail under a Rule 9(f), M.R.App.P., motion, appellant must show that the record does not truly disclose what occurred in the court below. The record appellant seeks to introduce here was not a part of the proceedings below at the time of those proceedings. Rule 9(f), M.R.App.P., is not applicable under these circumstances. We affirm the Workers’ Compensation Court on this issue.

The second issue raised on appeal is whether the Workers’ Compensation Court properly found that Industrial Indemnity was the insurer on risk at the time of Richter’s second injury thereby subjecting it to liability for Workers’ Compensation benefits and, if so, whether Industrial Indemnity must indemnify the State Fund for benefits paid to Richter since that time.

Here, two accidents were involved — one on July 5, 1984, when Richter was employed by General Wells Service, insured by the State Fund, and one on June 27, 1985, when Richter was employed by Simmons Drilling, insured by Industrial Indemnity. In this case, a subsequent event caused an aggravation of a pre-existing injury. Thus, in order for Richter to receive compensation from Industrial Indemnity for the second injury, the evidence must show thát Richter reached a medically stable condition before the occurrence of the second injury. Belton v. Carlson Transport (1983), 202 Mont. 384, 658 P.2 405.

In Belton, 658 P.2d at 409-10, we stated that the burden is on the insurance company that was “on risk” at the time of the accident. The insurer seeking to avoid payment, in this case Industrial Indemnity, has the burden of proving that claimant’s present condition was caused by an accident that occurred when another insurer was on risk. Little v. Structural Systems (1980), 188 Mont. 482, 614 P.2d 516, (overruled on other grounds in Belton, 658 P.2d at 408). The burden of disproving Richter’s medically stable condition is on Industrial Indemnity since it is seeking to avoid payment of Workers’ Compensation benefits for an accident that occurred while Richter was employed by Simmons Drilling, its insured. The Workers’ Compensation Court found that Industrial Indemnity did not meet the burden in proving that Richter was not medically stable prior to his subsequent employment.

On March 20, 1985, Dr. Lovitt released Richter to work without restrictions because he felt Richter’s condition was medically stable. On May 20, 1985, after Dr. Lovitt examined Richter for his back problems, Dr. Lovitt advised Richter that he could return to work. Although Richter was found to be “partially disabled, probably 50 percent,” Dr. Lovitt felt that Richter’s condition was medically stable. While Dr. Lovitt did write Richter a letter on June 6, 1985, and advised him to “sit back,” Dr. Lovitt never stated that Richter’s condition was not medically stable. In fact, Dr. Lovitt reiterated in his deposition that Richter was medically stable at the time of his second injury.

Industrial Indemnity argues that the fact that Richter injured his back on the second day he was employed by Simmons Drilling was indicative of his medical condition. Nevertheless, the mere fact that Richter was injured the second day he worked for Simmons Drilling is not, in and of itself, proof that he had not reached a medically stable condition.

Industrial Indemnity has failed to persuade this Court, as it failed to persuade the Workers’ Compensation Court, that Richter had not reached a medically stable condition when his second injury occurred because it did not meet its burden of proof and, thus, is liable, as the insurer of Simmons Drilling, for Richter’s Workers’ Compensation benefits in the amount of $286 per week. Because we hold Industrial Indemnity liable for benefits due as the insurer on risk when the June 27, 1985, accident occurred, we also hold that it must indemnify the State Fund for benefits the State Fund paid Richter since that date.

Affirmed.

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


author: JUSTICE BARZ

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. FRANK HENRY, Defendant and Appellant.
    No. 89-366.
    Submitted on Briefs Dec. 1, 1989.
    Decided March 2, 1990.
    788 P.2d 316.

      Timothy J. Lape, Poison, for Defendant and Appellant.
    Marc Racicot, Atty. Gen., Helena, Jennifer Anders, Asst. Atty. Gen., Helena, Larry J. Nistler, County Attorney; Mark L. Stermitz, Deputy, Poison, for Plaintiff and Respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

Defendant Frank Henry was charged by information with the offense of sexual intercourse without consent pursuant to sec. 45-5-503(1), MCA. Defendant pled not guilty. A jury trial was held January 5 and 6, 1989. The jury returned a guilty verdict on January 6, 1989. Defendant appeals the conviction. We affirm.

The following three issues are raised on appeal.

1. Whether the jury panel was selected contrary to law and in violation of defendant’s right to a trial by a fair and impartial jury;

2. whether the District Court erred in denying defendant’s motion to dismiss the charge based upon the alleged suppression of exculpatory evidence; and

3. whether the District Court erred in allowing into evidence photographs of scratches on defendant’s torso.

On September 20, 1988, Samantha Kenmille accompanied her sister and brother-in-law, Lori and Darrell Gross, to the Wolf Den Bar in Poison, Montana. After consuming several beers at the Wolf Den, the trio went to the Smokehouse Bar where they remained until closing. While at the Smokehouse Bar, Darrell Gross introduced Samantha Kenmille to defendant, Frank Henry. Samantha had not met defendant prior to that evening. At the closing of the Smokehouse Bar, Samantha, Lori, Darrell and defendant left the bar to go to Jack and Zoe Dulongs’ house for a party. At the Dulong residence, the defendant and Samantha engaged in conversation and became physically friendly by kissing. After about one and one-half hours at the Dulong residence, defendant invited Samantha, Lori and Darrell to his house for a sauna. The four left in the Grosses’ van, however, only defendant and Samantha were dropped off at defendant’s house because Lori and Darrell decided to return to the party.

Once at defendant’s house, the two sat in the living room and watched television. Prior to entering the sauna, Samantha expressed to defendant that she would like to leave. Defendant, however, insisted that she stay since the sauna was ready and he did not want to waste energy. Samantha followed defendant to the sauna and entered the sauna room by herself fully clothed. Defendant slammed the sauna door behind her and held it shut for ten or fifteen seconds. Samantha testified that defendant’s antics frightened her. Upon opening the door, defendant laughed and told her that he usually takes his clothes off before taking a sauna. Defendant then left the bathroom area.

Samantha shut the bathroom door, undressed and entered the sauna alone wearing her bra and underwear. Defendant undressed in another room and joined Samantha wearing only his underwear. Defendant sat on the bench next to Samantha and kissed her. No other physical contact, hugging or foreplay occurred between them until defendant suddenly forced Samantha’s legs apart and tore off her underwear. He also pushed her bra up and began slapping her breasts. Samantha testified that the slaps hurt and she became very afraid. During this time, Samantha tried to push the defendant away and forcefully told him “no.” Defendant, however, was on top of her, physically overpowered her and then had sexual intercourse with Samantha without her consent. Defendant failed to climax and then ceased the act of intercourse. Defendant subsequently left the sauna.

Samantha grabbed her clothes, got dressed, and ran out the door, leaving behind her torn underwear and coat. She ran back to the Dulongs’ house to find her sister Lori and brother-in-law Darrell. Darrell testified that Samantha was crying and appeared very upset when she arrived back at the Dulong residence. Samantha told Lori and Darrell that defendant was a “jerk” and that he had “beat her up.” All three — Samantha, Lori and Darrell — returned to defendant’s house to get Samantha’s coat because Samantha was afraid to go back to defendant’s house by herself. On the way back to defendant’s house, Samantha admitted to Lori that defendant had raped her.

Once at defendant’s house, they knocked on the door and defendant answered the door wearing only a pair of pants. Darrell testified that defendant’s chest was very red and his arm was scratched. While searching for Samantha’s coat, Darrell discovered the torn underwear in the sauna. He confronted defendant, who initially denied doing anything. An argument ensued between the two men, and Lori at one point stood between the two men and tried to push defendant away from Darrell.

Lori and Darrell took Samantha to the police station where she was interviewed by Officer Erickson at approximately 5:30 a.m. Samantha was very upset and was initially unable the talk about the incident. The officer detected an odor of alcohol but testified that she did not appear to be intoxicated. When he discovered that penetration had occurred, the officer called Detective Smith. Detective Smith marked and bagged Samantha’s underwear and sent her to the hospital where she was examined. The examining nurse reported bruises on Samantha’s left breast and inner thigh. The medical report specified that while no external pelvic trauma existed, Samantha was “crying,” “quite upset” and “unable to talk.”

Defendant was subsequently arrested on the afternoon of September 21, 1988, at the Smokehouse Bar in Poison. In his voluntary statement to the police, he contended that the act of sexual intercourse was consensual. Defendant was charged by information with the offense of sexual intercourse without consent as specified under sec. 45-5-503(1), MCA. Defendant pled not guilty. A jury trial was held January 5 and 6, 1989. The jury returned a verdict of guilty on January 6, 1989. Defendant appeals the conviction.

The first issue defendant raises on appeal is whether the jury panel was selected contrary to law and in violation of defendant’s right to a trial by a fair and impartial jury.

In the present case, the court authorized the jury commissioner to excuse those prospective jurors who were drawn and called for this trial who had an obvious undue hardship. Those without an obvious hardship were required to obtain a personal excuse from the court. The court acknowledged that prospective jurors were dismissed prior to trial who had demonstrated an undue hardship.

Defendant argues that six jurors were excused and that these jurors did not submit an affidavit stating their hardship nor was a record kept as to the reason these jurors were excused at the pretrial stage. Apparently, the basis of defendant’s pretrial objection is that at least one of the prospective jurors from the jury pool, who qualified to serve as a trial juror, was not in fact called for this particular trial. Defendant therefore argues that under sec. 3-15-313, MCA, the jury panel was selected contrary to law and in violation of his right to trial by a fair and impartial jury. Section 3-15-313, MCA, provides that

“(1) The court or jury commissioner with the approval of the court shall excuse a person from jury service upon finding that jury service would entail undue hardship for the person or the public served by the person.
“(2) If a person believes jury service would entail undue hardship for him or the public served, he may make and transmit an affidavit to the jury commissioner for which he is summoned, stating his occupation or such other facts as he believes will excuse him from jury service. The affidavit shall be filed with the jury commissioner, who shall transmit it to the court. The court or jury commissioner with the approval of the court may excuse a prospective juror from jury service if the prospective juror satisfies the provisions of subsection (1).”

In particular, defendant argues that the submitting of affidavits by those jurors who claim an undue hardship is mandatory under sec. 3-15-313, MCA, and that failure to do so created a material deviation in procuring a jury and therefore is a denial of defendant’s constitutional rights. We disagree.

Section 3-15-313(2), MCA, must be read in light of all the statutes addressing juries and jurors. See secs. 3-15-101 through -802, MCA. In particular, sec. 3-15-401, MCA, provides that each year the chairman of the board of county commissioners and the county clerk and recorder of each county must meet for the purpose of compiling a list of persons to serve as prospective jurors for the ensuing year. Once these prospective jurors are drawn, the clerk shall serve them notice by mail and require a response by mail as to their qualifications to serve as trial jurors. The clerk may also attach “a form for an affidavit claiming an excuse as provided for in 3-15-313 . . .” Section 3-15-505, MCA. If a prospective juror does not return an affidavit claiming an undue hardship, that prospective juror is then placed on the jury list for the term specified by the court. When jurors are needed for a pending trial, the jury commissioner will draw from the pool of jurors the number of jurors ordered to be drawn by the court. Section 3-15-503(1), MCA. Once the jurors are drawn from the pool, the prospective juror notified may then attempt to demonstrate an undue hardship so as to be excused from serving on that particular jury panel. Section 3-15-313(1), MCA. If the prospective juror succeeds in demonstrating undue hardship, the juror will be excused for that jury trial but will remain on the jury list for the remaining jury term and may be summoned to serve on a subsequent jury during that term. Contrary to what defendant asserts, however, the statutes do not demand the filing of an affidavit demonstrating an undue hardship at this stage of the jury selection process. No deviation occurred in the selection of the impaneled jury in this case. The record demonstrates that thirty prospective jurors appeared on the morning of trial. Of the first twenty-four prospective jurors questioned, only one was excused for cause during voir dire, which left five prospective jurors called for jury duty who were never questioned. As this Court has frequently stated:

“The accused cannot complain if he is still tried by an impartial jury. He can demand nothing more. The right to challenge is the right to reject, not to select, a juror. If from those who remain, an impartial jury is obtained, the constitutional right of the accused is maintained.”

Territory v. Roberts (1889), 9 Mont. 12, 14, 22 P. 132, 133 (citing Hayes v. Missouri (1887), 120 U.S. 68, 71, 7 S.Ct. 350, 352, 30 L.Ed. 578, 580); See also State v. Coleman (1978), 177 Mont. 1, 25-26, 579 P.2d 732, 747. In light of the above, defendant’s assertion that he was denied his constitutional right to a trial by an impartial jury because of a deviation in the jury selection process is unfounded and without merit.

The second issue raised on appeal is whether the District Court erred in denying defendant’s motion to dismiss the charge based upon the alleged suppression of exculpatory evidence.

Prior to trial, defendant had filed a motion in limine requesting the exclusion of all evidence concerning the scratches on his torso because it would potentially refute his defense of consent. Defendant claimed that the reason for exclusion of such evidence was “that its probative value is substantially outweighed by the danger of unfair prejudice.” The District Court denied the motion.

At trial, after the State had given its opening statement to the jury, defendant’s attorney received from Officer Hunter a copy of a written statement by Lori Gross. The statement stated in pertinent part that:

“Frank let us in and Darrell asked Frank why he slapped Sam. He was saying he didn’t and Darrell walked over to the sauna and picked up Sam’s underware [sic], which were all torn. Darrell asked Frank about it and Frank started to attack Darrell so I stepped between them and held Frank back at my arm’s length. He didn’t have any visible scratches at this time even to when we left so it had to be by his own hand or by unintentionable [sic] mistake of my own hand holding him back . . .”

The record demonstrates that neither defense counsel nor the prosecution had knowledge of Lori Gross’s written statement prior to the trial. Upon discovery of Lori Gross’s written statement, defendant made a motion to dismiss. The District Court denied the motion and afforded defendant an opportunity to either interview Lori Gross or subpoena her and call her as a witness prior to the defense concluding its case-in-chief. Defendant’s counsel neither interviewed Lori Gross nor subpoenaed her as a witness. Defendant’s counsel also did not renew his motion in limine, requesting the exclusion of all evidence concerning the scratches on defendant’s torso.

On appeal, defendant’s entire argument is based upon the alleged suppression of Lori Gross’s written statement. Defendant argues that the alleged suppression of this statement prejudiced him by denying him the opportunity to present it as an exhibit in support of his pretrial motion in limine. Defendant, however, had the opportunity to renew his motion in limine after the State’s opening statement, but failed to do so. The defendant cannot now raise the issue on appeal when he failed to renew his motion before the District Court. As this Court stated in Rasmussen v. Sibert (1969), 153 Mont. 286, 456 P.2d 835, “[t]o hold otherwise would . . . put the trial court in error on an issue which had not been presented to it for ruling . . .” Rasmussen, 153 Mont. at 295, 456 P.2d at 840. In addition, defendant’s argument alleging that the written statement was suppressed is without merit in light of State v. Kirkland (1979), 184 Mont. 229, 602 P.2d 586, where this Court held that “[e]vidence is not withheld or suppressed if the defendant has knowledge of the facts or circumstances, or if the facts become available to him during trial.” Kirkland, 184 Mont. at 243, 602 P.2d at 595.

In light of defendant’s failure to renew his motion in limine at the time Lori Gross’s written statement was discovered and in light of this Court’s holding in Kirkland, we uphold the District Court’s decision to deny defendant’s motion to dismiss the charge.

The third issue raised on appeal is whether the District Court erred in allowing into evidence photographs of scratches on defendant’s torso.

Defendant argues that the District Court erred by allowing into evidence the photographs illustrating the scratches that were present on defendant’s torso on the evening of September 21, 1988. Defendant argues that the probative value of these photographs were never explained to the jury. Defendant also argues that these photographs were introduced to arouse the sympathies and passions of the jury and were not substantially necessary or instructive to material facts.

The question of an evidence’s admissibility is a question of law, whereas the weight that is attributed to that evidence is left to the trier of fact. When determining whether a piece of evidence is admissible, a district court must find that the evidence is both relevant and competent. Rule 403, M.R.Evid., however, further provides that:

“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

At trial, a district court has the discretion in determining whether the evidence is relevant and also whether the factors in Rule 403, M.R.Evid. would preclude otherwise relevant evidence from being admitted. State v. Doll (1985), 214 Mont. 390, 399, 692 P.2d 473, 477. A district court therefore must determine whether the probative value of verified photographs outweighs any prejudicial effect. State v. Grant (1986), 221 Mont. 122, 136, 717 P.2d 562, 572.

The foundation testimony for the photographs in this case was provided by Detective Hunter. After being shown the photographs, Detective Hunter testified that he took the pictures on the night they arrested the defendant and that the photographs accurately portrayed the scene that was photographed. The State’s attorney subsequently questioned defendant as to the source of the scratches and as to whether Lori Gross clawed him with her fingernails. As this Court stated in State v. Sigler (1984), 210 Mont. 248, 688 P.2d 749, a jury is entitled to know the nature and extent of the injuries. Sigler, 210 Mont. at 256, 688 P.2d at 753. The photographs in this case were relevant in that they aided the jury in understanding the nature and the extent of defendant’s injury. The photographs thus were also available to the jury to aide them in determining, along with the other available evidence, the possible source of the scratches. The probative value of a photograph does not necessarily need to be explained to the jury in detail for it to be properly admitted. The District Court did not err in determining that the probative value of the photographs outweighed the prejudice, if any, to defendant.

Affirmed.

JUSTICES HARRISON, HUNT, SHEEHY and WEBER concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CHARLES M. GRAVES, Defendant and Appellant.
    No. 89-453.
    Submitted on Briefs Jan. 25, 1990.
    Decided March 2, 1990.
    788 P.2d 311.

      Barbara E. Bell, Bell & Marra, Great Falls, for defendant and appellant.
    Marc Racicot, Atty. Gen., James Yellowtail, Asst. Atty. Gen., Helena, Patrick L. Paul, County Atty., J. Kim Schulke, Deputy, Great Falls, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

A jury empaneled in the District Court of the Eighth Judicial District, Cascade County, found Charles M. Graves, defendant, guilty on two counts of burglary in violation of § 45-6-204(1), MCA, one count of theft in violation of § 45-6-301, MCA, and one count of attempt in violation of § 45-4-103, MCA. The District Court sentenced defendant to 15 years in the Montana State Prison on each count of burglary, 10 years on the theft count and 6 months on the attempt count. All sentences were to run concurrently. The court suspended five years on each burglary count and 6 months on the attempt count subject to conditions. Defendant was designated a persistent felony offender under § 46-18-501, MCA, and sentenced to 10 additional years under the designation in accordance with § 46-18-502, MCA, to run consecutively with prior sentences imposed. Under § 46-18-404, MCA, defendant was designated a nondangerous offender for the purposes of parole eligibility and was given credit for time served. Defendant appeals.

Affirmed.

The issues raised on appeal are:

1. Whether the District Court erred in denying defendant’s motion for a directed verdict of acquittal.

2. Whether the District Court erred in denying defendant’s motion for a mistrial.

3. Whether the District Court erred in denying defendant’s motion for a separate trial.

4. Whether defendant was afforded effective assistance of counsel.

5. Whether defendant’s sentence was improperly enhanced under the persistent felony offender statute.

On December 16,1988, defendant was charged by information with two counts of burglary in violation of § 45-6-204(1), MCA, one count of theft in violation of § 45-6-301, MCA, and one count of attempt in violation of § 45-4-103, MCA. The information was once amended on March 16, 1989. Daniel E. Radi, co-defendant, was similarly charged.

Counsel was appointed for defendant. On March 21, 1989, defendant’s counsel filed a motion for separate trials. A similar motion had been previously filed by defendant, pro se. A hearing was conducted on the motion on March 24, 1989. The motion was denied and defendant was tried jointly with Radi on March 27, 1989.

Defendant moved for a directed verdict of acquittal at the conclusion of the State’s evidence upon the contention that the evidence was insufficient. When the motion was denied, counsel for Radi gave his opening statement, which had been earlier reserved. Radi did not testify. Portions of the assertions presénted in the opening were unsupported by evidence. Subsequently, defendant moved for a mistrial upon the contention that he had been implicated by Radi’s opening statement. The motion was denied.

The first issue raised on appeal is whether the District Court erred in denying defendant’s motion for a directed verdict of acquittal upon conclusion of the State’s case. Defendant made the motion upon the contention that the evidence tying defendant to the burglaries in question was insufficient in one instance and nonexistent in another. We disagree.

Section 46-16-403, MCA, provides in part:

“When, at the close of the state’s evidence . . . the evidence is insufficient to support a finding or verdict of guilty, the court may, on its own motion or on the motion of the defendant, dismiss the action and discharge the defendant.” (Emphasis ours.)

The decision of whether or not to dismiss a charge at this stage lies within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. See State v. Goltz (1982), 197 Mont. 361, 372, 642 P.2d 1079, 1085. Moreover, a directed verdict of acquittal may only be granted in instances where no evidence exists to support a guilty verdict. State v. Courville (Mont. 1989), [236 Mont. 253,] 769 P.2d 44, 47, 46 St.Rep. 338, 342; State v. Matson (1987), 227 Mont. 36, 42, 736 P.2d 971, 974.

The State submitted, as evidence, the testimony of several witnesses and introduced numerous exhibits. Witnesses for the State included the first burglary victim, Arvin Otter; Officer Michael Stimac; store clerk, Gerald Byington; Detective James Olson; and the second burglary victim, Demaris Renville.

Arvin Otter testified that on December 11, 1988, at approximately 8:00 p.m., he and Janet Krantz were returning to their residence at 1401 Tenth Avenue Northwest when they observed a yellow vehicle in their driveway. As the couple approached, two men drove away in the vehicle. They observed that their garage door, which had been closed and locked when they left their house, was open. The garage door and the door frame were broken. They also observed a muddy footprint on the door. In their absence, the kitchen light had been turned on, the master bedroom doors opened, and contents in a closet disturbed. Nothing had been taken.

Otter further testified that, while Krantz called the police, he followed the yellow vehicle to a nearby convenience store where he recorded the license plate number of the vehicle on the back of his hand. He observed the occupants of the yellow vehicle at that time. A white male, later identified as Radi, pumped gasoline into the vehicle while a black male, later identified as the defendant, entered the store. Otter then returned to his residence.

Police Officer Michael Stimac testified that he responded to the call from the Otter residence on the night in question. Otter told him that the suspects had been observed by Otter at a nearby convenience store. Otter relayed the license plate number that he earlier recorded to the officer. Officer Stimac called in the number and vehicle description to the police dispatcher, who broadcast the information.

Officer Stimac testified that he went to the convenience store where he spoke with the store clerk, Gerald Byington. Byington told the officer that, less than ten minutes before the officer arrived, two men in a yellow vehicle had purchased gasoline. Byington also testified to that effect as well as to the fact that defendant paid for the gasoline partially with rare coined money. Byington identified defendant at trial as the black male in the yellow vehicle who had purchased the gasoline.

Shortly thereafter, the yellow vehicle was stopped by the police. Officer Stimac drove to the scene of the stop. He testified that at that time he observed that the pattern on the sole of Radi’s shoe was similar to the footprint on Otter’s garage door. Detective Jim Olson testified, as an expert, that the footprint was indeed made by the same type of shoe Radi wore that evening. Defendant and Radi were then placed under arrest. Detective Timothy Shanks testified that Radi made post-arrest statements to him in which Radi stated that defendant had been present when Radi kicked in the door of the Otter residence.

At approximately 10:00 p.m. the same evening, the police received a report of another burglary. Demaris Renville testified that, when she and her husband returned to their residence at 101 Sixteenth Avenue Northwest that evening, they observed that their door was open, the door frame was broken and a muddy footprint was on the door. Detective Olson testified that the footprint was also made by the same type of shoe Radi wore that evening. Renville further testified that several documents and her son’s coin collection were missing. A search of the yellow vehicle that defendant and Radi were arrested in revealed the coin collection. Detective Shanks also testified that Radi made a post-arrest statement to him in which Radi said that he found the coins on the frozen river.

As noted, a directed verdict of acquittal is proper only when no evidence exists to support a guilty verdict. Courville, 769 P.2d at 47. In light of the above evidence presented by the State, we cannot say that no evidence existed to support a guilty verdict at the close of the State’s case. There was no error.

The second issue raised on appeal is whether the District Court erred in denying defendant’s motion for a mistrial. The motion was based on the opening statement of Radi’s counsel that contained assertions implicating defendant, which were unsupported by evidence.

Radi’s counsel made an opening statement at the conclusion of the State’s case which included the assertion that Radi kicked in Otter’s garage door and that defendant and Radi were in possession of the stolen coins in question but only after finding them on the frozen river. Radi’s counsel called three witnesses — two of the witnesses stated that defendant and Radi were with them until approximately 6:30 p.m. on the day of the burglaries. One of the witnesses stated that nothing had been taken from the Otter residence. Radi did not testify. No testimony was given concerning the assertions set forth in the opening statement. Defendant argues that Radi’s opening statement, therefore, prejudiced his case.

However, the court instructed the jury as follows:

“Opening statements by attorneys are not evidence. Anything said by an attorney and not substantiated by the evidence is to be totally disregarded by the jury.”

See State v. Kolstad (1975), 166 Mont. 185, 531 P.2d 1346, where we upheld such a cautionary instruction.

A motion for a mistrial is left to the discretion of the trial court and will not be disturbed absent a showing of abuse of that discretion. Here, the jury was properly instructed to ignore counsel’s comments when unsupported by evidence. This Court cannot assume that the jury ignored the instruction. There was no abuse of discretion.

The third issue raised on appeal is whether the District Court erred in denying defendant’s motion for a separate trial. Defendant made the motion based on post-arrest statements that Radi made to Detective Shank which defendant believed would prejudice his case. Specifically, defendant complains of the statement that Radi made to Detective Shanks, an officer investigating the burglaries, that Radi and defendant found the coins on the frozen river and that defendant had been present when Radi kicked in the door of the Otter residence. Detective Shanks was expected to testify to the statements and did indeed so similarly testify as discussed previously.

Section 46-11-404(4), MCA, provides:

“If it appears that a defendant or the state is prejudiced by a joinder of related prosecutions or defendants in a single charge or by joinder of separate charges or defendants for trial, the court may order separate trials . . .” (Emphasis ours.)

Under the statute, it is within the trial court’s discretion to grant or deny a motion for a separate trial. See State v. Strain (1980), 190 Mont. 44, 55, 618 P.2d 331, 337; State v. Fitzpatrick (1977), 178 Mont. 530, 545, 569 P.2d 383, 392. In Strain, 618 P.2d at 338, we set forth the considerations in making such a determination:

“Joint trials speed the administration of criminal justice, conserve judicial time, lessen the burden on prospective jurors and obviate the necessity of recalling witnesses . . . the trial court must weigh these benefits against the potential prejudice to a defendant which may arise as a result of his being tried with another defendant.”

While prejudice to the defendant may be inherent in joint trials, we cannot say, in this case, that defendant was so prejudiced as to warrant reversal. Here, both defendants were charged with primarily the same offenses for their acts arising from the same crimes — both were charged with one count of burglary and one count of attempt in association with the Otter residence; both were charged with one count of burglary and one count of theft in association with the Renville residence; and Radi was charged with criminal mischief in addition to his other offenses at the Otter residence. Further, here, as in Strain, the State needed the same witnesses to prove the charges against both defendants. Also, both defendants used the same story in their defense — that of finding the stolen coins on the frozen river. In light of the circumstances of the case as applied to the considerations set forth in Strain, we cannot say that the District Court abused its discretion in denying defendant’s motion for a separate trial.

The fourth issue raised on appeal is whether defendant was afforded effective assistance of counsel.

Defendant asserts that, because trial counsel did not object to the rebuttal testimony of Detective Shanks regarding Radi’s post-arrest statements to Shanks as discussed earlier, he was denied effective assistance. We disagree.

In making a determination of effective assistance of counsel, this Court has adopted the test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See State v. Boyer (1985), 215 Mont. 143, 695 P.2d 829. Under Strickland, the defendant must first show that counsel’s performance was deficient and, if so, defendant must then show that the deficient performance was of such a magnitude as to have deprived defendant of a fair trial. Thus, defendant must show that, “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

Defendant has made no showing, other than an assertion of prejudice, that failure to make an objection to the rebuttal testimony of Detective Shanks would have changed the outcome of the proceedings. Defendant’s trial counsel was not constitutionally inadequate.

The last issue raised on appeal is whether defendant’s sentence was improperly enhanced under the persistent felony offender statute.

A persistent felony offender is defined in § 46-18-501, MCA, which provides:

“A ‘persistent felony offender’ is an offender who has previously been convicted of a felony and who is presently being sentenced for a second felony committed on a different occasion than the first. An offender is considered to have been previously convicted of a felony if:
“(1) the previous felony conviction was for an offense committed in this state or any other jurisdiction for which a sentence to a term of imprisonment in excess of 1 year could have been imposed;
“(2) less than 5 years have elapsed between the commission of the present offense and either:
“(a) the previous felony conviction; or
“(b) the offender’s release on parole or otherwise from prison or other commitment imposed as a result of the previous felony conviction.”

Here, defendant was previously convicted of mitigated deliberate homicide on February 19, 1980, and was paroled on that offense on October 9, 1985. Defendant was convicted of the offenses associated with the present appeal on March 29, 1989. Therefore, defendant met the definitional requirements of a persistent felony offender. Based on the designation, the District Court sentenced him to 10 additional years to be served consecutively with the sentences imposed on the convictions at issue in accordance with § 46-18-502, MCA. There was no error.

Affirmed.

JUSTICES HARRISON, SHEEHY, McDONOUGH and WEBER concur.


text:
    BHC HOLDING CO., A Montana Corporation, Plaintiff and Respondent, v. ROBERT HURLY, Defendant and Appellant.
    No. 89-398.
    Submitted Nov. 2, 1989.
    Decided March 6, 1990.
    788 P.2d 322.
    Peter O. Maltese, Sidney, Robert Hurly, Glasgow, for defendant and appellant.
    David A. Veeder and Joseph V. Womack, Veeder and Broeder, Billings, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Defendant, Robert Hurly, appeals from an order of the District Court of the Thirteenth Judicial District, Yellowstone County, denying his motion for change of venue. We affirm.

The sole issue raised on appeal is whether the District Court erred in denying Hurly’s motion for change of venue.

Robert Hurly is an attorney in private practice in Glasgow, Valley County, Montana. Plaintiff, BHC Holding Company, is a Montana Corporation with its principal place of business in Billings, Yellowstone County, Montana. The complaint alleges that BHC is the successor in interest to the rights and claims of Suburb Partnership, a Montana general partnership, which owned the Briarwood Project, a housing and country club development located in Yellowstone County.

BHC’s complaint stated a claim for legal malpractice, alleging that Suburb had employed Hurly to represent it in working out its financial difficulties with the United States Department of Housing and Urban Development (HUD), which held a mortgage on the-Briar-wood subdivision, and First Bank of Billings, which held a mortgage on the Briarwood country club. BHC claimed, among other things, that Hurly negligently performed these services and that Hurly breached his duty by failing to work out suitable agreements with the Bank and HUD. BHC sought compensatory damages as well as cancellation of any sums due for legal services and return of all sums previously paid for such services.

The present case is a companion to an appeal we dealt with in Hurly v. Studer (Mont. 1988), [234 Mont. 100,] 761 P.2d 821, 45 St.Rep. 1761 (Studer). In that case, Hurly brought a breach of contract suit in Valley County against Dean and Ralph Studer and Larry Chouinard individually, alleging that these defendants were the parties with whom he had contracted to renegotiate the Briar-wood Project loans. Hurly sought payment for services allegedly due and owing. Like the present case, Studer concerned a denial of a motion for change of venue. We remanded the case to the District Court because the court had not made the initial determination as to the location of the performance of the contract.

In response to the complaint filed by BHC, Hurly filed various motions with the Yellowstone County District Court, including a motion for change of venue to Valley County. The District Court reserved ruling on the motions pending the outcome of the Studer appeal and the Valley County District Court’s resolution of the issue on remand. After several months elapsed and the Valley County Court had not rendered a decision on the matter, the Yellowstone County Court issued a ruling on the venue question, holding that venue was proper in Yellowstone County. Hurly appealed to this Court.

The complaint in the present case states a claim of legal malpractice, which is a tort. The statute governing venue for actions based upon tort provides as follows:

“The proper place of trial for a tort action is:

“(1) the county in which the defendants, or any of them, reside at the commencement of the action; or

“(2) the county where the tort was committed. If the tort is interrelated with and dependent upon a claim for breach of contract, the tort was committed, for the purpose of determining the proper place of trial, in the county where the contract was to be performed.” (Emphasis added.)

Section 25-2-122, MCA.

“For the purposes of venue, a tort is committed where there is a concurrence of breach of obligation and the occasion of damages.” Whalen v. Snell (1983), 205 Mont. 299, 302, 667 P.2d 436, 437. Hurly’s obligation in this case was to negotiate a settlement with the Bank and HUD on behalf of BHC’s predecessor in interest. The breach, if any, occurred in the county in which Hurly performed these negotiations.

The District Court found that, even though Hurly’s law office was located in Valley County, the services he performed for BHC’s predecessor in interest were not legal services conducted from his office but negotiation services conducted in Yellowstone County. Therefore, any negligence that Hurly may have committed occurred in Yellowstone County. Furthermore, any damages that may have resulted from Hurry’s alleged breach accrued in Yellowstone County, the county where the property that was the subject of the negotiations was located.

The place where the alleged tort was committed was in Yellowstone County. Therefore, Yellowstone County was the proper place for trial. The District Court did not err in denying Hurly’s motion for change of venue to Valley County.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, McDON-OUGH, and WEBER concur.


text:
    NELSON E. CORSCADDEN, d/b/a Corscadden Steel Construction, Plaintiff and Appellant, v. LEROY HARRY KOMROSKY and Beverly Komrosky, husband and wife; United Insurance & Realty, Inc., a corporation; and Burton O. Bosch, Trustee, Defendants and Respondents.
    No. 89-517.
    Submitted Jan. 25, 1990.
    Decided March 6, 1990.
    788 P.2d 321.
    Robert Hurly, Glasgow, for plaintiff and appellant.
    James M. Kaze; Bosch, Ruhr, Dugdale, Martin & Raze, Havre, for defendants and respondents.
   JUSTICE BARZ

delivered the Opinion of the Court.

Nelson Corscadden appeals from an order of the District Court of the Seventeenth Judicial District, Valley County, granting respondents Capital Savings Bank and Burton Bosch’s motion for summary judgment. We affirm.

Leroy and Beverly Komrosky owned residential real property located west of Glasgow, Montana. In early 1984, the Komroskys arranged with Capital Savings Bank to consolidate certain pre-existing debts. The resulting loan was secured by a trust indenture on the real property. Capital recorded the trust indenture on February 9, 1984.

Appellant commenced a remodeling project on the Komrosky residence in June 1984. None of the proceeds of Capital’s loan went to finance the remodeling. Appellant completed the project in February 1987. In the interim, the Komroskys defaulted on their obligation to Capital. Capital filed notice of non-judicial trustee’s foreclosure sale on April 10, 1987. Appellant filed his mechanic’s lien two weeks later on April 24, 1987, and on August 7, 1987, instituted this action to foreclose that lien. Capital purchased the real property at the trustee’s sale and recorded its deed of trust on August 18, 1987.

Following motions for summary judgment by both parties, the District Court found in favor of Capital. The court certified its judgment for appeal pursuant to Rule 54(b), M.R.Civ.P., and entered judgment on September 15, 1989. The sole issue on appeal is whether the District Court erred in ruling that Capital’s trust indenture took priority over appellant’s mechanic’s lien.

Our recent holding in American Federal Savings and Loan Association v. Schenk (Mont. 1990), [241 Mont. 83,] 785 P.2d 1024, 47 St.Rep. 177, is dispositive of this issue. In American Federal, we held that the party with the least ability to protect its interest takes priority over previously recorded liens. American Federal, 47 St.Rep. at 180. We distinguished the lender’s position in that case from those of the lenders in Beck v. Hanson (1979), 180 Mont. 82, 589 P.2d 141; Home Interiors, Inc. v. Hendrickson (1984), 214 Mont. 194, 692 P.2d 1229; and Tri-County Plumbing & Heating, Inc. v. Levee Restorations, Inc. (1986), 221 Mont. 403, 720 P.2d 247, on the basis of which party had the greater ability to protect its interest. In each of those three cases, the lender knew or had reason to believe the borrower would utilize the loan proceeds to finance new construction or improvements on real property. The lender in American Federal had no knowledge of the remodeling project nor any ability to further protect its position even if armed with such knowledge. American Federal, 47 St.Rep. at 180.

The facts of the instant case are analogous to those of American Federal. Section 71-3-502, MCA (1985), is also the statutory law applicable to this case. Appellant knew of the prior recorded trust indenture before commencing the remodeling work. Appellant notified Capital that the Komroskys contracted with him to remodel their home. However, such notice was given three months after Capital closed its loan with the Komroskys and subsequent to the recording of Capital’s trust indenture as well. The mere giving of notice in no way permitted Capital to improve its position. Appellant, on the other hand, knew of the prior recorded trust indenture and could have secured its position by demanding advance or installment payments. The District Court properly found Capital’s trust indenture had priority over appellant’s mechanic’s lien.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, Mc-DONOUGH and WEBER concur.


text:
    In re the MARRIAGE OF SHERRY M. SUSEN, Petitioner and Appellant, and THEODORE C. SUSEN, Respondent and Respondent.
    No. 89-310.
    Submitted Dec. 7, 1989.
    Decided March 9, 1990.
    788 P.2d 332.

      Arthur D. Agnellino, Due Process Legal Clinic, Missoula, for petitioner and appellant.
    Kristine Davenport, Missoula, for respondent and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Sherry M. Susen, petitioner and appellant, appeals from a custody order entered by the District Court of the Fourth Judicial District, Missoula County. We affirm.

This Court summarizes the issues on appeal as follows:

1. Whether the District Court erred in its decision not to interview the minor child and inquire as to her wishes.

2. Whether the District Court considered the child’s special needs and best interests in awarding joint legal and physical custody of the minor child on an equal basis.

3. Whether the District Court’s findings of fact and conclusions of law were sufficient to support its custody order.

Appellant, Sherry Susen, and respondent, Ted Susen, were married on September 21, 1981. Both parties were United States Postal workers and earned $27,000 to $28,000 per year. One child was born of the marriage, Kelly Anne Susen, who is now in kindergarten. Because of chronic ear infections, Kelly has a speech and language disorder, requiring therapy and treatment.

Sherry filed a petition for dissolution in the District Court of the Fourth Judicial District, Missoula County, and the District Court entered its findings of fact, conclusions of law and order on January 16, 1987, in which the parties received joint legal and physical custody of Kelly on an equal basis. Specifically, since the parties both lived in Missoula at the time of the dissolution, the court decreed that the parties would alternate physical custody of Kelly, rotating every two weeks.

On February 1, 1989, Sherry accepted employment with the postmaster in Roseburg, Oregon, that would commence on February 25, 1989. On February 6, 1989, Sherry filed a motion with the District Court for modification of custody, requesting primary physical custody. On February 10, 1989, the parties signed a stipulation in which they agreed not to move Kelly out of Missoula County until further order of the court. On February 17, 1989, Ted filed a response, opposing Sherry’s motion and moved the court that, in the event Sherry relocates out of Missoula County, he be granted primary physical custody.

On February 21 and 28, 1989, a hearing was held on the parties’ motions. On March 30, 1989, the court issued its findings of fact and conclusions of law and order. The court found both parties to be fit parents.

In 1987, Ted remarried. His new wife, Patricia, assists in caring for Kelly, and the court, in its March 30, 1989 findings, found that Patricia interacts well with Kelly and that the two have a good relationship. Patricia has two children from a prior marriage whom the court also found interacted well and had a good relationship with Kelly. Also, Ted’s parents live in Missoula a portion of the year and are active in Kelly’s life.

The court modified the existing arrangement and ordered that Ted would have physical custody through June 30, 1989; Sherry would have physical custody from July 1, 1989 to one week before Kelly began school in Missoula; Ted would have physical custody from then until July 22, 1990; Sherry would have physical custody from then until July 22, 1991; and from that point on Ted and Sherry would alternate physical custody of Kelly each year until she reaches the age of majority. From the order Sherry appeals.

The first issue raised on appeal is whether the District Court erred in its decision not to interview Kelly and inquire as to her wishes.

Sherry argues that the District Court’s decision not to interview Kelly and inquire as to her wishes violates sec. 40-4-212(1)(b), MCA, which provides that the court shall determine custody in accordance with the best interests of the child and in doing so shall consider the wishes of the child. While the statute does require the court to consider the wishes of the child, it does not require that the court interview the child. See In re the Marriage of Hickey (1984), 213 Mont. 38, 42, 689 P.2d 1222, 1224. Here, the court specifically found in its January 16, 1987 findings that all of the witnesses who testified at the hearing stated that Kelly loves and enjoys being with both of her parents and that Kelly has a good relationship with both. In making such a finding, which was supported by testimony, the District Court has complied with sec. 40-4-212(1)(b), MCA.

The second issue raised on appeal is whether the District Court considered Kelly’s special needs and best interests in modifying the original custody arrangement and awarding joint legal and physical custody of Kelly on an equal basis.

Section 40-4-219, MCA, provides:

“The court may in its discretion modify a prior custody decree if it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child and if it further finds that:

“(f) the custodial parent has changed or intends to change the child’s residence to another state.” (Emphasis ours.)

Here, parties were awarded joint legal and physical custody on an equal basis to alternate each year. Montana favors joint custody. Section 40-4-222, MCA. Equal physical custody between parties is also favored when in the best interests of the child. Section 40-4-224(2), MCA. The court specifically found that the joint and physical custody arrangement shared by the parties since the time of the dissolution was satisfactory and no reason to discontinue the arrangement had been set forth. However, because the parties now live in separate states, the District Court, in its March 30, 1989 order, implemented a summer and school year schedule which alternated custody between parties annually.

Sherry appeals from the order and argues that Kelly has special needs for which Sherry can provide if deemed primary custodian. Kelly suffers from a speech and language disability brought on by chronic ear infections. She is currently being treated for her disability in Missoula.

Nonetheless, the best interest factors of sec. 40-4-212, MCA, are determinative of the issue. The court found that it was in Kelly’s best interest for the parties to share joint legal and physical custody of her on an equal basis.

The standard of review in a custody determination is that this Court will not disturb a district court’s findings unless they are clearly erroneous. In Re the Marriage of Ereth (1988), 232 Mont. 492, 494, 757 P.2d 1312, 1313. The District Court’s decision will be upheld unless a clear abuse of discretion is shown. In Re the Marriage of Rolfe (1985), 216 Mont. 39, 44, 699 P.2d 79, 82. Here, Sherry has not presented persuasive evidence against the court’s findings. There was no abuse of discretion.

The third issue raised on appeal is whether the District Court’s findings of fact and conclusions of law were sufficient to support its custody order.

Sherry argues that the District Court’s findings and conclusions did not address the best interest considerations set forth in sec. 40-4-212, MCA, and, thus, were insufficient. We disagree. The court’s order of March 30, 1989, was supported by 20 findings.

Finding No. 8 provided:

“That the District Court Judge made lengthy and specific Findings of Fact on January 16, 1987 that it was in the best interests of the parties’ minor child for the parties to share joint legal and physical custody of said child on an equal basis.” (Emphasis ours.)

Finding No. 12 provided:

“That the testimony at the hearing of this matter, together with the Findings of Fact entered on January 16, 1987, show that . . .” (Emphasis ours.)

The January 16, 1987 order contained 58 findings which included the best interest factors set forth in secs. 40-4-212(1)(a)-(e), MCA. The March 30, 1989 order sufficiently incorporated the best interest findings of the January 16, 1987 order by reference. We hold the findings sufficient.

Affirmed.

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