text:
    The STATE OF MONTANA, Plaintiff and Respondent, v. STEVEN WAYNE KEEFE, Defendant and Appellant.
    No. 87-92.
    Submitted May 10, 1988.
    Decided June 13, 1988.
    759 P.2d 128.

      John Keith argued, Great Falls, for defendant and appellant.
    Mike Greely, Atty. Gen., Kathy Seeley argued, Asst. Atty. Gen., Helena, Patrick L. Paul, Co. Atty., Great Falls, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Defendant Steven Wayne Keefe appeals his conviction for three counts of deliberate homicide, Section 45-5-102(l)(a), MCA, and one count of burglary, Section 45-6-204(1), MCA. The Eighth Judicial District Court in and for Cascade County, the Hon. Thomas McKittrick presiding, sentenced Keefe to three terms of life imprisonment (to be served consecutively), ten years for burglary, four ten-year terms for the use of a weapon in the offenses and designated him a dangerous offender not eligible for parole. Keefe asserts only one issue on this appeal: Was evidence of Keefe’s other crimes, wrongs and acts properly admitted under Rule 404(b), M.R.Evid., before the State presented evidence of the crime charged? We affirm.

Keefe was charged on March 21, 1986, with the deliberate homicides of Dr. David McKay, a Great Falls opthalmologist, his wife, Constance McKay, and their 40-year-old daughter, Dr. Marian McKay Qamar, a Seattle, Washington, pediatrician, at the McKay home three miles south of Great Falls, Montana, on October 15, 1985. The complaint was amended on June 10, 1986 to include a charge that Keefe had stolen Constance McKay’s purse from the McKay home on the day of the homicides. After a hearing in Youth Court, Keefe was bound over to District Court for trial as an adult. He pled not guilty to all charges.

Keefe argues that his right to a fair trial on these charges was compromised when the State began its case-in-chief with evidence of other burglaries committed by Keefe that were not charged in this complaint as amended. He contends that such unrelated evidence led the jury to overestimate the probative value of the evidence of burglary at the McKay home and also established him in the eyes of the jurors as an evil man deserving punishment.

There is no argument that the McKays and Dr. Qamar died as a result of criminal acts. The controlling question is whether the State established, prima facie, that Keefe committed these criminal acts. Because there are no witnesses except perhaps a 3-year-old child, no fingerprints, and no confession other than two admissions made to fellow residents at Pine Hills School for Boys, the State was obligated to proceed with circumstantial evidence. Key pieces in this puzzle of circumstances were that Keefe had a history in Lewis and Clark County of similar and repeated burglaries and that at a burglary less than two weeks previous, a .44 magnum Ruger Redhawk revolver and ammunition were stolen. The F.B.I. later linked this weapon to the ballistics of two of the fatal shots in the McKay home. The F.B.I. expert said he could not be positive that the other fatal shot was fired by the gun. It was this gun that Keefe asked a friend to pawn for him on October 16, 1985, the day after the McKay homicides. The gun was recovered by the Cascade County sheriff at the pawnshop on March 4, 1986.

The record demonstrates that there is more than sufficient evidence — albeit circumstantial evidence — to support this verdict and judgment. Circumstantial evidence is not necessarily inferior in quality and, in fact, often is most convincing and satisfactory. Any evidence that is material, relevant and competent will be admitted in a criminal trial. If the facts and circumstances are of such quality and quantity as to legally justify a jury in determining guilt beyond a reasonable doubt, the court must accept the verdict of the jury. State v. Cor (1964), 144 Mont. 323, 326-27, 396 P.2d 86, 88-89, citing State v. Espelin (1938), 106 Mont. 231, 76 P.2d 629; State v. DeTonancour (1941), 112 Mont. 94, 112 P.2d 1065.

We must then examine the record to determine what are the known facts regarding the McKay and Qamar homicides and the circumstances concerning Keefe, which when tied together, lead to the conclusion that Keefe was at the McKay home on the afternoon of the homicides and, in fact, committed the homicides.

Joseph McKay, the son of David and Constance McKay, arrived at his parents’ home for a family dinner at about 5:15 p.m. October 15, 1985. His sister, Marian Qamar, and her 3-year-old daughter, Monya, had flown in for a visit earlier that day. Another sister, Octavia McKay Joyner, had greeted the Qamars and had left them at the McKay home at about 2:30 p.m. Joseph McKay entered through an unlocked ground-level door, which opens into the family room. He noticed that a pot of potatoes was burning on the stove in the kitchenette at the rear of the room. He testified that he removed the pot from the stove’s burner, and then turned to a hallway, which led to the laundry room on the left, to the garage and a root cellar at the end, and to a staircase to the main floor on the right.

As he entered this hallway, Joseph McKay testified that he found his mother lying on the floor in a pool of blood and realized that she was dead. When he stood up to alert the rest of the family he saw Marian Qamar also lying in the hall and apparently dead. He returned to the family room to call authorities just as his sister, Octavia, and her husband, Don Joyner, drove up to the house. He urged them to keep their children outside and allowed Don Joyner, who is a practicing physician, into the house. Dr. Joyner checked for a pulse on Marian Qamar. He could find none and determined that both women were dead. Sheriffs dispatchers who received Joseph McKay’s call told him to exit the house and dispatched deputies immediately. Joseph McKay and Dr. Joyner left the house without climbing the stairs to the main floor.

Sheriffs deputies arrived within minutes and were told of the two bodies on the lower floor and that Dr. McKay and Monya Qamar were unaccounted for. The deputies entered the house through the ground-level door Joseph McKay had used, stepped past the bodies of the two women and came to the base of the stairs leading to the upper floor. Here they noticed six empty shell casings lying on the rug. They stepped over these casings and climbed six steps to a landing that faces the main door to the house and another six steps from this landing to the main floor. As the deputies proceeded through the dining area they noticed Dr. McKay lying dead in the adjacent kitchen. The deputies then checked the bedroom and found Monya Qamar sleeping in one of the beds. One of the deputies picked the girl up and carried her down one flight of stairs to the main door and attempted to open the main door but had to move a heavy rug that had been pushed up against the bottom of the door.

Deputy Jim Bruckner, one of the first sheriff’s deputies on the scene, was qualified at trial as a police expert on crime reconstruction. He testified that the investigation indicates that Dr. McKay, who was shot once in the back of the head from the left, was the first victim shot. There were wine glasses laid out on a counter in front of the body and a wine glass lay broken in his hand. This, he said, shows Dr. McKay was unaware of any danger when he was shot. Investigators theorize that Dr. Qamar came to investigate the noise in the kitchen, saw the killer, turned, and was shot at five times as she fled down the two flights of stairs. She may have tried to open the main door, but was prevented from doing so because the rug stopped the door. As she got to the hallway at the ground-level she was struck by a bullet in the back and also by one that tore through her right ankle, and fell either dead or dying in the hallway. Three bullets were located in the walls adjacent to the staircase. The gunman emptied the chamber of the weapon used to kill the victims at the base of the stairs and reloaded. Constance McKay then entered the home from the concrete root cellar adjacent to the garage to find her daughter lying on the hall floor. As she knelt to attend to her daughter, the gunman stepped out and fired a shot into the left side of Mrs. McKay who reeled and fell twenty feet away. Another shot was fired at Constance McKay but missed her and lodged in a baseboard heater. In total, eight .44 magnum rounds were fired in rhe McKay house.

Upon completion of autopsies, the Cascade County deputy coroner set the time of death as approximately 4:30 p.m. While preliminary investigations revealed no other crime had occurred in the house, deputies later found a pile of coins on a dirt road near the house and family members sübsequently determined the purse belonging to Constance McKay was missing from the McKay home. The purse never has been found.

Keefe was seventeen years old at the time of the homicides. At the time, Lewis and Clark County law officers suspected his involvement in four recent burglaries, at one of which a .44 magnum Ruger Redhawk revolver was stolen. Keefe traveled to Great Falls on October 10, ostensibly to seek employment at a new Buttrey’s supermarket; he stayed the weekend with several acquaintances and showed the .44 revolver to his roommates and several of their friends.

The day after the McKay homicides, Keefe requested that a roommate who was of legal age, Michael Hayashi, assist him in pawning a portable radio/stereo stolen from one of the recent Helena burglaries and later the .44 magnum Ruger Redhawk. Keefe had Hayashi pawn the .44 magnum Ruger Redhawk revolver, the weapon used to kill the victims, for $75 because he said he needed the money for a trip to Helena, even though a second roommate, Toby Scott Yadon, a day or two before the victims were killed, offered him $250 for that same .44 magnum Ruger Redhawk revolver. Keefe had refused this offer because he had said he wanted more money for the revolver. The items, thus, were placed in hock on October 16, 1985 at a Great Falls pawnshop. Later that same day, Keefe was detained by the Great Falls police on a Lewis and Clark County court order and held for Helena authorities who transferred him back to Pine Hills School for Boys because of his recent burglaries.

It was during this confinement at Pine Hills that Keefe told of the McKay homicides to other residents. One resident testified that he and Keefe had been discussing burglaries when Keefe admitted that he also had killed people. This witness testified that Keefe said he had left a party and gone to a lady’s house and that when the lady had come out of the kitchen he shot her and that when two people came down stairs to investigate he shot them also. The witness testified that Keefe said the lady was named Constance; the witness also testified he had not heard of the McKay homicides before his discussion with Keefe.

A second resident testified that in mid-November, 1985, he and Keefe were alone in a music room when Keefe related that he had shot and killed three people while burglarizing a home near Great Falls. The witness testified that Keefe said he had broken in through sliding glass doors and killed Dr. McKay when he came to investigate and then shot the two women when they came down to investigate. This witness testified that he did not reveal this conversation until after Keefe’s arrest.

When trial commenced in Cascade County District Court on October 16, 1986, the State began its case-in-chief by calling twenty-six witnesses who testified as to five burglaries or attempted burglaries attributed to Keefe. Defense objected to this practice claiming that it was inherently prejudicial since it presumed that these crimes were sufficiently similar to the McKay crime to be introduced under Rule 404 (b), M.R.Evid. To cure any potential defect the State filed a sealed affidavit with the court one week before trial setting out what this evidence would prove. The actual testimony of these witnesses demonstrated that:

*On July 22, 1985, between the hours of midnight and 8 a.m., somebody entered the Helena valley home of Arlene Wall while she slept and removed her purse and camera. No harm was done to anyone. Mrs. Wall’s keys and credit cards were surrendered to the Lewis and Clark County authorities by Keefe’s mother, Mrs. Vera Parmer.
*On August 3, 1985, Patrick Wall, the son and neighbor of Arlene Wall, returned to his home at 2 a.m. to find an unknown pickup truck near his home and his home’s front door broken open. He found that a camera and .22 caliber pistol had been stolen. No harm was done to anyone. The pickup was later found to be registered to Keefe’s mother and the .22 caliber pistol was later found in Keefe’s possession.
*On October 2, 1985, between the hours of 6:45 p.m. and 10 p.m., the basement window to Ron Garvin’s Helena-area home was broken and a .44 magnmm Ruger Redhawk revolver, four boxes of ammunition, and a portable radio/stereo were stolen. Keefe’s fingerprints were found on the glass of the broken window. No harm was done to anyone although a neighbor testified he heard gunshots in a field nearby at about this time. The F.B.I. specialist testified that this gun, which Keefe admitted he showed-ofF in Great Falls, matched the ballistics of two of the fatal shots, and also could have fired the third.
*On October 10, 1985, a daylight burglary occurred at the residence of Ray Bell, Mrs. Parmer’s employer. Nobody was injured in this crime since the house was unoccupied but a portable radio/ stereo, a camera, and a .38 caliber pistol were stolen. Mrs. Parmer testified that she saw the camera in Keefe’s belongings as he packed for his trip to Great Falls and she returned it to Bell. The radio/ stereo was pawned for Keefe by his friend Michael Hayashi, the same day as Garvin’s .44 magnum Ruger Redhawk was pawned.
*At about 9:30 p.m. on October 12, 1985, Dr. Paul Wilhelm heard somebody ring the doorbell at his home north of Great Falls. He was suspicious because he was expecting no company; he checked from windows but could see nobody at the door. Dr. Wilhelm then carefully shined a light on a vacant hill and fired two shots. He heard a person run away. Dr. Wilhelm’s home was not entered and nobody was harmed. The next day he found footprints near his home which were later photographed. F.B.I. specialists later matched these photographed footprints to a pair of Keefe’s shoes.

The State called twenty additional witnesses to testify about investigation of these other crimes before it introduced any evidence of the McKay crime. The District Court allowed such evidence to be admitted over strong and repeated objections from defense counsel. It ruled less than a week before trial that the State could mention the other crimes in its opening statement and use the evidence before any evidence from the McKay homicides was in. The court admonished the jury on three occasions during the presentation of this evidence and at the conclusion of the trial repeated the admonition as an instruction:

“The State has just offered evidence that the defendant at another time engaged in other crimes, wrongs or acts. That evidence was not admitted to prove the character of the defendant in order to show he acted in conformity therewith. The only purpose of admitting that evidence was to show proof of motive, opportunity, plan, knowledge, identity, absence of mistake or accident. You may not use that evidence for any other purpose.”

The defendant is not being tried for that other crime, wrong or act. He may not be convicted for any other offense than that charged in this case. For the jury to convict the defendant of any other offense than that charged in this case may result in unjust double punishment of the defendant.

Keefe testified in his own behalf. He admitted to the Helena burglaries but claimed he never was at the McKay home. On the afternoon of the McKay homicides-burglary, he claimed he was applying for a job at Buttrey’s, returning rented video-cassettes, and having a key made for the residence at which he was living. He also said that any of several persons he had shown the stolen .44 magnum Ruger Redhawk revolver knew where he kept it. He claimed the other Pine Hills residents had lied when they said he had admitted to the killings. Keefe called no other witnesses.

The jury convicted Keefe of all counts on October 22, 1986.

It is against this backdrop of factual and circumstantial evidence that we must determine whether the District Court properly allowed evidence of the other crimes to be introduced under Rule 404(b), M.R.Evid., which states:

“Character evidence not admissible to prove conduct, exceptions; other crimes; character in issue.
“(b) Other crimes, wrongs, acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

This Court established the rules for use of evidence of other crimes and wrongful acts in State v. Just (1979), 184 Mont. 262, 602 P.2d 957, citing State v. Jensen (1969), 153 Mont. 233, 455 P.2d 631. In order to introduce evidence of other crimes or wrongful acts, the State must demonstrate four substantive factors; (1) that the other crimes or wrongful acts are similar; (2) that the other crimes or wrongful acts are not remote in time; (3) that the other crimes or wrongful acts tend to establish a common scheme, plan or system; and (4) that the probative value of the other crimes or wrongful acts is not substantially outweighed by their prejudice to the defendant. Just, 602 P.2d at 961. It is this fourth element that is most significant in this case since Keefe argues on appeal that the State’s use of other crimes and wrongful conduct before evidence from the McKay homicides was presented prejudiced his case. We have recognized that “[ejvidence of other acts, . . . invariably will result in prejudice to the defendant to a certain degree.” Just, 602 P.2d at 961.

“Prejudice in cases such as this manifests itself in three forms. First, proof of other offenses subjects a defendant to surprise by requiring [him] to defend against a crime not charged . . . Second, the jury might overestimate the probative value of the evidence and assume that merely because the defendant has committed crimes before, he is likely to be guilty of the crime charged . . . Third, the evidence may indicate to the jury that the defendant is a proper candidate for punishment . . . (Citations omitted.)”

State v. Hansen (1980), 187 Mont. 91, 99, 608 P.2d 1083, 1088.

To cure the problem of such undue prejudice outweighing the probative value of the evidence, the Just test incorporates three procedural requirements. First the State must notify the defendant prior to trial that evidence of other crimes or wrongful acts will be introduced and indicate the purpose for the use of such evidence. Just, 602 P.2d at 963-64. Under the Federal Rule 404(b), which is identical to the Montana rule, as many as ten permissible purposes for the introduction of prior crimes and acts have been identified. These include:

“(2) To prove the existence of a larger plan, scheme, or conspiracy, of which the crime on trial is a part. This will be relevant as showing motive, and hence the doing of a criminal act, the identity of the actor, or his intention.
“(6) To establish motive. The evidence of motive may be probative of the identity of the criminal or of malice or specific intent. An application of this principle permits proof of criminal acts of the accused that constitute admissions by conduct designed to obstruct justice or avoid punishment for a crime, or of the crimes that motivated the interference with the enforcement of the law.
“(9) To prove identity. Although this is indisputably one of the ultimate purposes for which evidence of other criminal conduct will be received, the need to prove identity should not be, in itself, a ticket to admission. Almost always, identity is the inference that flows from one or more of the theories just listed ...”

McCormick on Evidence (1984), 3d Ed., pp. 558-563.

Second, the District Court must admonish the jury as to the limited purposes of the prior crimes and acts evidence, and third, the District Court must offer a final instruction stating “in unequivocal terms” that the evidence of other crimes or acts has limited purposes and that the defendant is not on trial for those crimes or acts. Just, 602 P.2d at 964.

On June 9, 1986, more than a month before Keefe’s original trial date and more than four months before Keefe eventually went to trial, the Cascade County Attorney’s office filed notice to Keefe and his attorneys that it would introduce “evidence of other crimes, wrongs, or acts ... for the purposes of proving motive, opportunity, preparation, plan, knowledge, and identity . . .” It listed witnesses from the Wilhelm, Garvin, Bell and Patrick Wall incidents, among others. The notice was amended on October 7,1986, one week before jury selection began, to include evidence from the Arlene Wall residence. It appears the defendant had timely and proper notice with adequate time to respond.

Also present is an admonition to the jury, which the court read three times during the introduction of evidence of Keefe’s other crimes and wrongful conduct. Although the State called twenty-six witnesses to testify about these five incidents, the three readings of the admonition is sufficient under the Just test. In State v. Tecca (Mont. 1986), [220 Mont. 168,] 714 P.2d 136, 43 St.Rep. 264, the defendant-appellant argued that the jury must be admonished whenever any witness presents evidence of other crimes or wrongful acts. No authority was presented for that contention and we ruled that Just does not require an admonition every time the evidence comes in. Tecca, 714 P.2d at 140.

Neither is the third Just procedural aspect lacking in the instant case. The admonition read by the District Court and issued again as a final instruction is identical to the cautionary instruction used in Tecca, which this Court found to be a “proper cautionary instruction meeting the third procedural requirement of Just.” Tecca, 714 P.2d at 140. Because all three procedural requirements of Just have been met, we cannot say as a matter of law that the prejudicial nature of the other crimes and wrongful acts evidence exceeds its probative value. State v. Clausen (Mont. 1987), [225 Mont. 20,] 740 P.2d 679, 681, 44 St.Rep. 1308, 1311. The probative value of the evidence is determined from the remaining Just factors. Because Keefe concedes that none of the incidents were remote in time, the remaining two substantive factors, similarity of acts and tendency to show common scheme, plan, or system, are reviewed.

Keefe has argued throughout that although the burglary of the McKay home and theft of Mrs. McKay’s purse might be like certain of his acts, a purse is such a common target of burglaries that it proves nothing. We note, however, that the other crimes and wrongful acts evidence shows that he had stepped into Mrs. Wall’s home and taken her purse; that he had recently committed daytime and early evening burglaries at the Bell and Garvin homes; that after the Garvin burglary he had fired the .44 magnum he stole; that three days before the McKay homicides Keefe was chased away from the Wilhelm home by gunshots, and the day after the McKay homicides he pawned the gun at a price lower than an outstanding ofFer to buy.

“The prior . . . acts . . . have a similarity of inherent probability . . . There is the hand of a plan with an ulterior motive carrying out an intent by scheme and design of the defendant that was a resultant common course of conduct.”

Just, 602 P.2d at 961. Evidence of other crimes or wrongs is admissible if it goes to an issue other than the defendant’s character or disposition to commit a crime. State v. Matson (Mont. 1987), [227 Mont. 36,] 736 P.2d 971, 976, 44 St.Rep. 874, 880. Keefe’s actions were links in a chain of burglaries that culminated at the McKay home. The evidence of other crimes and acts was probative and properly admitted as a part of the prosecution’s case. They demonstrated the existence of a common scheme or plan by Keefe to commit burglaries and thefts and as such were properly admitted. See, Matson, 736 P.2d at 976.

Under Rule 404(b), M.R.Evid., the prior crimes and wrongs need not be proven beyond a reasonable doubt because they are not offered to prove guilt of those other crimes or acts. Just, 602 P.2d at 963. Even when the evidence of prior crimes or wrongful acts is not sufficiently common or related it is admissible if it tends toward the conclusion that the defendant is guilty of the crime charged with moral certainty and beyond a reasonable doubt. Matson, 736 P.2d at 977. The evidence of prior crimes rises to the appropriate level and is buttressed by Keefe’s admissions to the Helena crimes. Thus, it demonstrates a common scheme or plan.

It is within the District Court’s discretion to decide whether it will permit such evidence into a criminal case. Matson, 736 P.2d at 976. The court also has the discretion to decide the order of proof. State v. Stever (Mont. 1987), [225 Mont. 336,] 732 P.2d 853, 44 St.Rep. 283. There is a triumvirate of responsibility when such evidence comes to be at issue. The State cannot expect admission of such evidence routinely without a showing of need for the evidence even if the Just requirements are met; the defense, on the other hand, cannot rely on the general rule of exclusion of such evidence unless the Just requirements fail; and the District Court must make a conscientious decision on the admissibility of the evidence considering all four substantive Just requirements as a whole. State v. T.W. (Mont. 1986), [220 Mont. 280,] 715 P.2d 428, 430-31, 43 St.Rep. 368, 371-72.

A review of the record shows that counsel for Keefe and for the State argued the question of whether Rule 404(b) other crimes and wrongs evidence could precede the State’s case-in-chief at three separate hearings before the start of the trial. We note that the transcripts show the District Court was reluctant to accept the evidence of other crimes and wrongful acts before the State’s case-in-chief. At the first hearing, the District Judge stated his problem succinctly:

“THE COURT: I guess the point I’m making is I’m being asked . . . at this time to make a ruling [on the admissibility of other crimes and wrongs evidence] when I’m really in a vacuum. I don’t know what the facts are on either side. I don’t know whether or not the probative value outweighs the prejudicial nature of the evidence. I don’t know whether it’s relevant. I don’t know whether they’re similar in nature. I don’t know whether they tend to establish a common scheme, plan, or design.”

At the end of the first hearing, the court ruled that it was satisfied the Just requirement that notice be given had been met. The court said it would allow the other crimes and wrongs evidence to be admitted at trial “if the State can prove it’s relevant and that the probative value outweighs the prejudicial value . . .” The court noted that it could not address the substantive factors of Just since it did not know the State’s case and would be receptive to motions to exclude certain testimony as irrelevant.

The second and third hearings occurred in the week prior to the trial. At the second hearing, the court stated that its decision that the Just notice was in proper form, did not mean the evidence contained therein was automatically admissible. Accordingly, the court instructed the State to alert the court before it presented evidence of other crimes so that a hearing could be held outside of the jury’s presence to determine if that particular piece of evidence is relevant.

The State said it was proceeding in a chronological, sequential fashion in order to show “the pattern, the mode, and so forth.” The defense said it would be impossible to effectively argue against pieces of this other crimes evidence when presented in this order since the evidence of the case-in-chief would not have been presented.

“THE COURT: What you’re saying is we don’t even know what the facts of this case are, so how can we compare as to whether there is similarity, whether there is remoteness in time, whether or not any of the facts anywhere remotely are connected? And how would I be able to determine that not knowing what the facts are in the case-in-chief?
“MR. KEITH [defense counsel]: Until the witnesses get up and testify we don’t know anything. The witnesses have to get up and testify first.
“THE COURT: The court is going to reserve the ruling on the admissibility on theme items, and I would suggest to the State at this time that Mr. Keith has made a very valid point ...”

The State then prepared an affidavit for the court outlining the evidence of prior crimes and wrongs. The affidavit outlined the testimony the State would elicit from the Helena burglary victims, Dr. Wilhelm, and listed other witnesses who investigated the crimes or would verify chains of custody. The affidavit did not describe the evidence that would be introduced from the McKay home. It stated that the other crimes and wrongs evidence demonstrates:

“1. Intent, motive, plan, common scheme and identity in that defendant burglarizes isolated residences in day or night time; he acts alon[e]; he likes weapons; is not afraid to enter homes that may be occupied; and that his plan and common scheme over three months was to burglarize and steal from these isolated residences. Defendant is charged with burglary, as well as three counts of deliberate homicide.
“2. The crimes are all similar in nature.
“3. The nearness in time is well demonstrated by being no longer than three months and as soon as 3, 5, and 13 days prior to October 15, 1985.
“4. The tendency to establish common scheme i[s] that there is a continuous pattern of behavior which is amply demonstrated here.
“5. The probative value outweighs any prejudice to defendant in that all the evidence points to identity. While defendant admits stealing and pawning the murder weapon he can still attempt to shift blame to his two roommates. However, the evidence is overwhelming that the crime follows defendant’s pattern of conduct and not those of his roommates.

In addition, the State cited State v. Powers (1982), 198 Mont. 289, 645 P.2d 1357, and State v. Riley (1982), 199 Mont. 413, 649 P.2d 1273, at a third pre-trial hearing as authority for presenting evidence of other crimes before the case-in-chief. The defense countered that the State was using other crimes evidence to create its case-in-chief rather than to support it. The court inquired of the assistant county attorney:

“THE COURT: [U]nder the normal use of 404(b) evidence as I understand it, the Court can take the proffer of proof that I get at a side-bench conference ... I can look at that, and I can compare to the case-in-chief that [has] already gone in to the Court and gone in front of the jury. You’re asking me to make a ruling in a vacuum. You’re asking me to go on the basic premise that everything you’re offering is going to be admissible. And that’s the danger. What if the thing is not admissible? . . .
“MR. HAGERMAN: Well, Your Honor, in many different cases, this type of evidence has been argued in motions in limine
“THE COURT: Mr. Hagerman, have you ever been in a case when 404(b) evidence went in before the case-in-chief?
“MR. HAGERMAN: I personally have not, Your Honor.
“THE COURT: I have not either, and I have tried many, many cases ...”

Neither Powers nor Riley states that the prosecution may introduce evidence of other crimes or wrongful acts before its case-in-chief. Powers stands for the proposition that evidence of other persons’ acts in disciplining children and acts by defendant in disciplining children other than the victim may be introduced to show a common design. The similarity in discipline methods provided proof of the defendants’ motive, as well as intent and plan. Powers, 645 P.2d at 1363. In Riley, this Court noted that the State is allowed “to present the entire corpus delecti of the charged offense including matters closely related to the offense and explanatory of it, even when such evidence discloses crimes other than those charged.” Riley, 649 P.2d at 1279. While Riley says the jury is allowed to view the victim’s death in the context of prior events, it does not say such evidence is automatically permissible if entered chronologically. Riley, 649 P.2d at 1280.

The District Court did not err in allowing the prosecution to present its evidence in the chronological sequence used in this case.

When a District Court has received an offer of proof, as in this case, where the affidavit and arguments have been presented by the prosecution for the chronological presentation of evidence admissible under the Just standards, the District Court has discretion to allow the sequence and order of presentation.

Appellant has argued that the presentation of evidence by the prosecution of other crimes and acts prior to the entered presentation of evidence of the deliberate homicides unduly focused the jury’s attention on the other crimes and acts for which the defendant was not being tried.

The transcript reveals that in the opening statements of both the prosecution and the defense, there is left no doubt that the jury was apprised of the crimes for which the defendant was being tried. Timely notice was given to the defense on more than one occasion of the chronological order of proof to be offered by the prosecution and the defense had timely notice and opportunity to argue in opposition to this proposal. The District Court carefully heard and considered the prosecution’s proposal and the defense’s opposition, which included the offer of proof presented by the prosecution.

Section 46-16-401, MCA, provides for the order of trial in criminal cases and requires that the county attorney must state the case and offer evidence in support of the prosecution. Section 46-16-402, MCA, states: “When the state of the pleading requires it or in any other case for good reason and in the discretion of the court, the order prescribed in 46-16-401 may be departed from.” (Emphasis added.)

Further, Rule 611(a)(1), M.R.Evid., provides:

“Mode and order of interrogation and presentation; re-examination and recall; confrontation.
“(a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth,

In the present case, the District Court reserved judgment on the admissibility of the other crimes and wrongful acts evidence until after the State had filed a sealed affidavit demonstrating what that evidence would show. We find no abuse of discretion by the District Court. The State satisfied the Just requirements. Its use of evidence of other crimes and wrongful acts was sufficient to prove motive, plan, opportunity, and identity. See Cor, 396 P.2d at 89. The District Court exercised its discretion painstakingly and conscientiously. We will not disturb that judgment.

Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE GULBRANDSON

license: Public Domain

text:
    BRUCE A. YOUNG and Sherri D. Young, Husband and Wife; Leo B. Evans and Lona Lee Evans, husband and wife, and Ruth E. Palmer, Plaintiffs and Respondents, v. FLATHEAD COUNTY, a Body Corporate, Defendant and Appellant, and Flathead County Board of Commissioners, a Body Politic; Nakul S. Verma, Flathead County Zoning Administrator, Defendants and Albert Seeley, Defendant-Intervenor, Plaintiff Cross-Claimant and Respondent, and Henry Oldenburg, Defendant and Intervenor.
    No. 87-363.
    Submitted April 26, 1988.
    Decided June 13, 1988.
    757 P.2d 772.

      Ted Lympus argued, Co. Atty., and Jonathan B. Smith argued, Deputy Co. Atty., Kalispell, for defendant and appellant.
    Lawrence F. Daly argued, Missoula, for plaintiffs and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

This is an appeal of findings of fact, conclusions of law and judgment of the Eleventh Judicial District Court, Flathead County, in favor of defendants-intervenors Albert Seeley and West Central Resources, Inc., R.C. Lee & Associates, Inc., Tri-Fortune Investments, Inc., Early Bird Investments, Ltd., and Early Bird Properties, Inc. (Developers) against defendant-appellant, Flathead County (County). The findings and conclusions were adopted on April 22, 1982 and amended on July 12, 1982. The District Court entertained the damage claim and entered findings and conclusions on March 24, 1987 against the County in excess of two million dollars. A motion to alter the judgment, or in the alternative to grant Flathead County a new trial was denied June 2, 1987. The County appeals. We reverse and remand for further proceedings.

The following issues have been presented for our review:

1. Did the County’s August 13, 1981, change of position on the requirement of subdivision review for condominium projects give rise to a claim for damages by Developers?

2. Was the County’s change of position the proximate or legal cause of Developers’ damages?

3. Should the County have been entitled to a new trial on grounds the District Court erred in not admitting evidence on the issue of proximate cause?

4. Whether Developers’ reliance on the County’s initial position of no requirement of subdivision review of condominium projects was supported by substantial evidence and, if so, whether that reliance was reasonable?

5. Is the County immune from damages under Section 2-9-111, MCA?

6. Did the damages awarded by the District Court exceed the statutory limit on governmental liability?

Reversal of this case is based on the first four issues and we therefore will not address issues five and six.

This case arises from a failed condominium development on the west shore of Flathead Lake. In the early 1980s, Developers approached the County and proposed construction of the Caroline Point Estates and Yacht Club condominiums on 28 acres of unzoned property. Prior to construction, Developers requested the parcel be zoned as a planned unit development (PUD) in order to construct the projected 84 units. If zoned R-2 (rural residential), the area could only hold 56 units which would not be financially viable for Developers.

Deputy County Attorney Charles Kuether (Kuether), and Will Aiken of the Montana Department of Health and Environmental Sciences (DHES), informed Developers the project was not a “subdivision” under the Subdivision Platting Act, Title 76, Chap. 3 and 4, MCA, and therefore would not be subject to subdivision review.

County Sanitarian Tom Cowan (Cowan) informed Developers on September 19, 1980, that sanitary review would not be initiated for “several months.” Developers contend Cowan informed them that the basic concept for sewage treatment was approved. However, on December 18, 1980, Developers’ attorney received a letter from DHES indicating that DHES considered the project a subdivision, and therefore subject to review. Developers were made aware of this letter. On December 23, 1980, the Board of Commissioners of Flathead County adopted Resolution 414 which zoned the property PUD. Developers commenced construction in late December, 1980. On January 6, 1981, and January 19, 1981, Ray Lee, one of Developers’ partners, received letters from DHES requesting an application for sanitary review be filed with the Subdivision Bureau under the Sanitation in Subdivisions Act. The second letter stated continuing construction would violate the Act. A notice of violation was subsequently issued as Developers did not slow construction.

The County claims Lee also met with Ed Casne of DHES and was told the project was a subdivision. Developers claim they received additional assurances at this time from Kuether. Relying on these assurances, Developers claim they finalized their ownership interests in the property in January of 1981. At a February 11, 1981, meeting, Kuether stated the County disagreed with the DHES designation and the issue was likely to be decided through litigation. On February 13, 1981, the Commissioners re-approved the PUD designation in Resolution No. 421. On this same day, Dr. John Drynan, director of DHES, requested an opinion from the Montana Attorney General as to whether condominium developments are subdivisions subject to review.

On March 6, 1981, DHES conducted a hearing on its notice of violation earlier issued to Developers. The hearing resulted in a stipulation entered into between DHES and Developers which allowed construction of four model units, to be used to promote “pre-sales,” a combination recreation center/caretaker’s residence and a marina. Developers were also allowed to maintain a sales office on the project so that construction and production schedules were not halted. DHES issued findings of fact and conclusions of law April 27, 1981 that stated since Developers relied on previous assurances, equity demanded they be allowed to continue with the above-stated limited construction.

Opponents of the development filed a complaint on March 13, 1981, alleging the condominium project was a subdivision subject to review. Construction continued on the units allowed by the stipulation and Developers claim they planned to “presell” 11 of the next 15 units before further construction would occur.

By June of 1981, Developers invested over $900,000 in the project. Because additional operating capital was needed until pre-sales began to generate revenue, Developers borrowed $200,000 from First Interstate Bank of Kalispell and an additional $325,000 from a Canadian bank. Formal application for sanitary approval purposes was sent to DHES on June 24, 1981. On June 30, and July 19, 1981, Developers met with the County Sanitarian who informed them no problems were yet encountered.

The Attorney General Opinion, 39 A.G.Op., No. 28, was issued July 28, 1981, and held condominium projects were subdivisions subject to review. In this opinion, the Attorney General relied on the intention of the Legislature that a broad definition of “condominium” was intended when the Sanitation in Subdivisions Act definitions were adopted in 1973. The Attorney General stated:

“It is the public policy of this state to extend present laws controlling water supply, sewage disposal, and solid waste disposal to include individual wells affected by adjoining sewage disposal and individual sewage systems to protect the quality and potability of water for public water supplies and domestic uses and to protect the quality of water for other beneficial uses, including uses relating to agriculture, industry, recreation, and wildlife.

“This expression of legislative concern regarding water supply, sewage disposal, and solid waste disposal logically includes concern for the impact of the high density development that is characteristic of condominiums.”

On August 13, 1981, the County Attorney wrote Developers’ counsel and advised him to cease project construction until subdivision approval was attained. The letter imposed restrictions on further sales. By August 13, 1981, cost on the construction project had reached $1,065,578.

Developers continued to attempt to secure sanitation approval from the State and County and the State and County continued their review of the project. After the influx of money ceased, Developers were forced to abandon the project and absorb significant losses. Developers could not secure further financial support and because they purchased the property on an installment contract, were forced to default.

In response to the complaint filed by project opponents, Developers, specifically Seeley as court-authorized intervenor, filed a “Cross-Claim for Declaratory Relief against defendant Flathead County” on September 24, 1981. The cross-claim contained seven counts. Count III sought to estop the County from enforcing the subdivision review requirement. It alleged the County Attorney interpreted the regulations requiring subdivision review as being inapplicable to the development and Developers justifiably relied and acted upon these interpretations. Paragraph V of Count III states “[t]hat in August of 1981, the county, through the office of the county attorney, arbitrarily, capriciously and without justification” prohibited further construction resulting in financial damage. The cross-claim concluded with a prayer for declaration that the project was exempt from subdivision review and that Developers are “entitled to damages in an amount to be shown at trial.”

The District Court addressed motions for summary judgment and the cross-claims in two phases. Pursuant to stipulations setting forth agreed facts and issues, on April 22, 1982, the District Court entered findings of fact and conclusions which were amended on July 12, 1982 and September 30, 1986. Hearings on the second issue of damages were held in October, 1984 and concluded on April 26, 1985. These hearings resulted in findings of fact and conclusions of law entered on March 24,1987 and supplemented on June 2,1987, along with a judgment on April 8, 1987 in favor of the Developers. The final order, issued June 2, 1987, was filed over six years after the complaint was filed.

On appeal, the findings of the trial court are presumed to be correct if supported by substantial evidence and we refuse to substitute our judgment for that of the District Court where, as here, the District Court is acting as the trier of fact and there is substantial evidence to support its decision. Department of Revenue v. New Life Fellowship of Montana, Inc. (Mont. 1985), [217 Mont. 192,] 703 P.2d 860, 862, 42 St.Rep. 401. We will not reverse the District Court absent a showing that its determinations were clearly erroneous. Rule 52(a), M.R.Civ.P.

The first three issues presented for our review are very similar and we will deal with them jointly as we find the District Court erred in its determination of proximate cause and in its disallowance of evidence regarding this issue.

Developers are entitled to recover damages if it can be shown the alleged negligent representations of the County caused the damages and injures suffered by Developers. Generally, negligence requires existence of a duty, breach of that duty and harm caused by that breach. R.H. Schwartz Const. Specialties, Inc. v. Hanrahan (1983), 207 Mont. 105, 107, 672 P.2d 1116, 1117. In this case, the causation question was not adequately satisfied by Developers to allow for recovery of damages.

In the District Court’s findings of fact and conclusions of law dated March 24, 1987, it found that as of August 13, 1981, the necessary sanitary approval had not been granted by either DHES or the Flathead county sanitarian. The County argues excluded evidence would have shown it had further become increasingly apparent that the project would not be able to support the 84 proposed units. The PUD re-zoning plan that the County had worked out with Developers was merely done so that Developers could construct the 84-unit rather than a 56-unit, project. The District Court stated “the stop order issued by the County in the midst of construction was not required by considerations of health or safety.” It went on to find that the stop order’s only effect was to require “repetitive and redundant” procedures that halted the project construction.

Developers complied with the County order. The District Court made a finding that after the order of August 13, 1981, the project lost favor with county officials. The county sanitarian decided he would not approve a sewage disposal system for 84 units and as a result of county officials’ conflicting representations, developers had no way to service the underlying debt accumulated in financing the project. The District Court, in its findings and conclusions of March 24, 1987, made a specific conclusion that the County proximately caused Developers’ damages.

The County argues, and we agree, that the District Court erred in this finding and in disallowing evidence pertaining to the proximate cause issue after August 13,1981. This evidence was contained in a number of County exhibits that demonstrated Developers continued to work on the project well beyond August 13, 1981. Developers sold the project over a year later.

The county sanitarian testified that the sewer system review process was not affected by the letter of August 13, 1981 and that even after this date Developers attempted to gain approval in the same manner as before. The County claims one of the exhibits was a letter dated October 9, 1981 to Casne, Chief of the DHES Subdivision Bureau from the engineering firm of Thomas, Dean and Hoskins, stating the realization that the 84-unit plan was not feasible. Four of the exhibits allegedly dealt with the hiring of an independent expert by the DHES to study the project in light of two conflicting reports previously received by the DHES. It is argued that not only did these exhibits show that it was unlikely the project would ever receive approval, they also demonstrated DHES’ effort to analyze Developers’ proposal and Developers’ continued attempt to salvage the project.

The County contends a letter of January 13, 1982, which was not allowed into evidence, demonstrated Developers’ continuing effort to revise the plan to receive sewer system approval. An off-site treatment system was another design consideration proposed and letters in regard to this attempt were also not allowed. Other exhibits were offered but disallowed that further demonstrated the continuing attempt, even into 1983 and 1984, to gain approval for a sewage system.

Lack of approval of the sewage system was fatal to the project in addition to any subdivision review requirement. These exhibits should have been allowed and considered, failure to admit such evidence was error.

Developers briefly argue “but for” the representations by the County, they would never have proceeded with the enormous financial project and therefore no damage would have occurred. As a consequence, Developers claim, all other causes, especially those after August 13, 1981, are irrelevant because financial commitment would not have occurred. We disagree.

Liability, in any cause of action, attaches if the plaintiff can prove first that defendant’s act is a cause in fact of injury and then that the injury is the direct or indirect result, proximately caused by the negligent act. Causation in fact has been determined by the use of the “but for” test, argued by Developers, and in rare circumstances under a substantial factor examination. Prosser and Keeton, The Law of Torts, Section 41, pp. 264-268 (5th ed., 1984). In Montana, the distinction between causation in fact and proximate cause, now occasionally referred to as legal cause, has not generally been made. See, Rudeck v. Wright (Mont. 1985), [218 Mont. 41,] 709 P.2d 621, 638, 42 St.Rep. 1380; Kyriss v. State (Mont. 1985), [218 Mont. 162,] 707 P.2d 5, 8, 42 St.Rep. 1487.

Under causation in fact, the “but for” test has been defined as but for defendant’s conduct, the event would not have occurred, or, conversely, defendant’s conduct is not the cause of the event, if the event would have occurred without the conduct. Rudeck, supra, 709 P.2d at 628. As an uncommon alternative to the “but for” test, the “substantial factor” test has been designed to deal with problems where application of the “but for” test would allow each of a number of defendants to escape responsibility because the conduct of one or more others would have been sufficient to produce the same result. Judeman v. Montana Deaconess Medical Center (Mont. 1986), 726 P.2d 301, 305, 43 St.Rep. 1747.

In the case at bar, Developers present a reasonable argument that but for the representations of the County they would not have proceeded with the project. They claim the second event, development of Caroline Point Estates, would not have occurred but for the first event, the representations of the County.

However, the representations did not “proximately cause” the damages in this case. In Montana, proximate cause is one which in a natural and continuous sequence, unbroken by any new, independent cause, produces injury, and without which the injury would not have occurred. Jimison v. U.S. (D.C. Mont. 1967), 267 F.Supp. 674, aff. 427 F.2d 1133; Sztaba v. Great Northern Railway Co. (1966), 147 Mont. 185, 195-196, 411 P.2d 379, 385. This definition of proximate cause incorporates the “but for” definition in the words of the last clause “[a]nd without which the injury would not have occurred.” It is from this wording that the distinction between cause in fact and proximate, or legal, cause has become clouded. Nonetheless, prior to analyzing proximate cause, a claimant must satisfy cause in fact. Developers in this case could satisfy the “but for” analysis but could not show proximate cause. Proximate cause clearly must be established to create liability in a negligent defendant. Demaree v. Safeway Stores, Inc. (1973), 162 Mont. 47, 54, 508 P.2d 570, 575; see also, Dvorak v. Matador Services, Inc. (Mont. 1986), [223 Mont. 98,] 727 P.2d 1306, 1311, 43 St.Rep. 1562, 1568-1569 (where it was determined defendant’s conduct must be proven as the proximate cause of the claimant’s injures to show negligence in strict liability). Therefore, Developers had to prove an uninterrupted chain of events from the alleged negligent act of the County, e.g., erroneous relied-upon representations and Change of position, to the injuries and damage suffered. Further, this chain of events could not be broken by any new, independent cause, such as economic factors or failure to secure sanitary approval. This burden has not been met by Developers as is apparent from the evidence which was erroneously excluded by the District Court.

Further, since other factors — the economy, failure to secure additional financing, and especially the inability to secure approval of the sewer system — had an impact on the resulting damage, Developers cannot claim the County’s representations alone “proximately caused” the damage. Where more than one possible cause of damage appears, the plaintiff must eliminate causes other than those for which the defendant is responsible. Valley Inland Pacific Constructors, Inc. v. Clackamas Water District (Or. 1979), 603 P.2d 1381. Developers’ failure to separate the causes and damage bars them from arguing proximate cause is satisfied in this case. Numerous interruptions in the chain of events occurred that could be considered the injury causing damage.

In support, the County directs this Court’s attention to the testimony of Albert Seeley that no pre-sales were to be closed prior to complete approval of the units’ sanitary systems. Seeley further admitted that sanitary systems approval for the 84 units was never received from the County nor DHES.

Regardless of whether the County made any representations that condominiums were or were not subject to subdivision review, the fact is that it is likely the project would not have been completed because sanitary approval could not be secured. The County also points out that in addition to the above mentioned factors, the testimony of Developers’ accountant was that a number of occurrences combined to cause the demise of the development.

We note at this juncture that this argument takes us into the fourth issue of whether reliance on the County’s initial position was reasonable. The District Court stated in its conclusions of law of March 24, 1987, that “developers justifiably relied upon the representations of Flathead County that the Caroline Point condominium project was not subject to the Flathead County Subdivision Regulations.” Further, the court concluded the order prohibiting further construction and sales “was the proximate cause of injury to the developers entitling the developers to recover from the County as damages their net out-of-pocket loss which reasonably resulted from their reliance upon previous County representations.” As previously set forth, the District Court abused its discretion in its determination of proximate cause of injury in this case. We also hold that the conclusion that Developers justifiably relied upon the representations was error.

Ground breaking on the project began December 23, 1980 after the County Commissioners initially passed the PUD required to allow for increased density. Of importance, however, is the letter that was sent by DHES on December 18, 1980 informing Developers that DHES considered the project a subdivision subject to review. Also, a review of the statutes in effect at the time shows that “subdivision” did include condominiums. The following statutes, state and local regulation of subdivisions, provide:

“Section 76-4-102(7), _ MCA J_ (1979) — ‘Subdivision’ means a division of land or land so divided which creates one or more parcels containing less than 20 acres, exclusive of public roadways, in order that the title to or possession of the parcels may be sold, rented, leased, or otherwise conveyed and includes any resubdivision and any condominium or area, regardless of size, which provides permanent multiple space for recreational vehicles or mobile homes.
“Section 76-3-103(15), _ MCA _ (1979) — ‘Subdivision’ means a division of land or land so divided which creates one or more parcels containing less than 20 acres, exclusive of public roadways, in order that the title to or possession of the parcels may be sold, rented, leased, or otherwise conveyed and shall include any resubdivision and shall further include any condominium or area, regardless of its size, which provides or will provide multiple space for recreational camping vehicles or mobile homes.” (Emphasis added.)

Developers were represented by counsel during the entire period of time at issue. In light of the existence of these statutes and the letter that was issued from DHES, the question of the reasonableness of the Developers’ reliance is paramount in determination of this case.

Developers contend that their reliance was reasonable because the County, through its attorney, “promised” it would litigate its determination that condominiums were not subject to subdivision review. However, agents of the DHES, specifically Will Aiken, had also advised Developers that the condominium development would not be subject to subdivision review.

The County appropriately points out that Developers were relying on an interpretation of law, an opinion, that the condominiums would not be subject to subdivision review. The County Attorney’s office maintained no confidential or professional relationship with Developers in this case. Therefore, the County’s opinion — in light of the State’s determination that subdivision review would be required set out in the letter of December 18, 1980; the fact that Developers were represented by their own counsel; the existence of the above-mentioned statutes and the actual opposition to the lack of subdivision review that was expressed by opponents of the project who ultimately filed this suit — was unreasonably relied upon by Developers.

We reverse and remand for further proceedings consistent with this opinion.

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


author: MR. JUSTICE WEBER

text:
    WILLIAM G. MYERS, JR., Plaintiff and Appellant, v. DEPARTMENT OF AGRICULTURE, State of Montana, Defendant and Respondent.
    No. 87-410.
    Submitted on Briefs April 28, 1988.
    Decided June 13, 1988.
    756 P.2d 1144.

      Hash, O’Brien & Bartlett; James C. Bartlett, Kalispell, for plaintiff and appellant.
    Norman C. Peterson, Agency Legal Services Bureau, Helena, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Mr. Myers filed suit against the defendant in the Eleventh Judicial District, Flathead County, alleging wrongful termination of employment and seeking unpaid wages. Prior to trial the court granted summary judgment for the defendant on the issue of unpaid wages. The jury returned a verdict for Mr. Myers and awarded him $850.00. The District Court entered judgment for Mr. Myers but offset the award by deducting $671.05 awarded earlier by a grievance panel and $178.95 for unemployment benefits paid to Mr. Myers for the period following his termination. The court refused to award attorney fees or costs to Mr. Myers. Mr. Myers appeals the decision to offset the award and the decision not to award fees and costs. We affirm. We consider the following issues:

1. Did the District Court err by ordering the offset for previous unemployment benefits?

2. Did the District Court err by granting partial summary judgment on the statutory wage claim?

3. Was plaintiff entitled to recover penalties, attorney fees, and costs?

Mr. Myers has not filed a trial transcript on appeal, although he did file a transcript of the hearing on his motion to amend the judgment or for new trial. Consequently, the only facts before us are those contained in the district court file. The following facts were stipulated to the lower court prior to trial:

1. The plaintiff was hired by the Department of Agriculture on February 14, 1984, as a potato inspector. He was paid $5,347 per hour.

2. Training began on February 22, 1984. The plaintiff completed the training necessary to he an inspector and received the necessary state and federal certifications. He was licensed on March 24, 1984.

3. The Department of Agriculture received a letter from Orrin R. Streich dated April 9, 1984, stating in part, “I absolutely refuse to have Bill Myers inspecting on my farm.”

4. The plaintiff was no longer assigned to Orrin Streich’s farm following receipt of the letter of April 9, 1984. However, the plaintiff continued working at the Snell farm.

5. April 13, 1984, was the plaintiff’s last day of work as a potato inspector.

6. Some potato inspection of crops occurred subsequent to April 13, 1984.

7. Following plaintiff’s separation from employment, Dayle Mercier completed the inspection on the Streich farm and smaller farms continued to be inspected by other inspectors.

8. For the 1984 season, Bill Myers worked a total of 162.5 hours; Linda Lidstrom worked a total of 368.5 hours; and Dayle Mercier worked a total of 78.5 hours.

Mr. Myers contended he had been told by his supervisor that he would work approximately as many hours as Linda Lidstrom would work. His employer, Department of Agriculture, stated that he was terminated because there was no further inspection work to do in his area. Mr. Myers believed that no just cause existed for his termination; he therefore requested that a grievance panel conduct administrative review of his termination. The record does not contain the grievance panel’s decision. However, the District Court, in its judgment, refers to the panel’s decision:

“Specifically, the grievance panel recommended on December 20, 1984 that Mr. Myers be compensated in the amount of $671.05. A warrant in that amount, minus costs, was sent to Mr. Myers on January 2, 1985 by Keith Kelly, Director of the Department of Agriculture.”

Dissatisfied with the panel’s decision, Mr. Myers brought this action in district court.

I

Did the District Court err by ordering the offset for previous unemployment benefits?

After his termination from employment, Mr. Myers received $184.00 in unemployment benefits from the Department of Labor. The District Court ordered that the jury award of $850.00 be offset by the grievance panel award of $671.05 and unemployment benefits received. The court explained its reasoning:

“The parties agreed prior to trial, and it was consistent with the claim made by Plaintiff to Department of Agriculture in his Employee Grievance Form, that the amount awarded to Plaintiff for lost wages should be offset by (1) the amount of the grievance panel award and (2) by the amount of unemployment benefits received ‘so that he is made whole.’ This claim is in accord with generally accepted principles of law as to damages and is adopted by the Court. Hence, the offset by this Court for the grievance award of $671.05 and unemployment compensation for the period of April 14, 1984 through May 8, 1984.”

Mr. Myers has not refuted the lower court’s statement that the parties agreed to the offsets prior to trial. Without a transcript, we may not question the lower court’s reliance upon such an agreement.Therefore, we affirm the District Court’s judgment and order that the jury award be offset by the grievance panel award and by unemployment benefits collected by Mr. Myers.

II

Did the District Court err by granting partial summary judgment on the statutory wage claim?

Prior to trial, the defendant moved for partial summary judgment on grounds that Mr. Myers had no basis for a wage claim pursuant to Title 39, Chapter 3, Part 2, MCA. Mr. Myers responded by contending that had he not been discharged he would have worked for the remainder of the potato season and would have collected wages for the whole season. Those lost wages, he argued, constituted “wages” as anticipated by Sections 39-3-204 through -206, MCA. Those statutes read, in pertinent part, as follows:

“39-3-204. Payment of wages generally. (1) Every employer of labor in the state of Montana shall pay to each employee the wages earned by such employee . . . and no person for whom labor has been performed may withhold from any employee any wages earned or unpaid for a longer period than 10 business days after the same are due and payable.
“39-3-205. Payment of wages when employee separated employment prior to payday. (1) Except as provided in subsection (2), whenever any employee is separated from the employ of any employer, all unpaid wages of such employee shall become due and payable within 3 days, except for employees of the State of Montana and its political subdivisions who would be paid on the next regular payday for the pay period during which the employee was separated from employment or 15 days from the date of separation from employment, whichever occurs first . . .
“39-3-206. Penalty for failure to pay wages at times specified in law. Any employer, as such employer is defined in this part, who fails to pay any of his employees as provided in this part or violates any other provision of this part shall be guilty of a misdemeanor. A penalty shall also be assessed against and paid by such employer and become due such employee as follows: a sum equivalent to the fixed amount of 5% of the wages due and unpaid shall be assessed for each day, except Sundays and legal holidays, upon which such failure continues after the day upon which such wages were due, except that such failure shall not be deemed to continue more than 20 days after the date such wages were due.” (Emphasis added.)

The District Court granted partial summary judgment for the defendant. The court reasoned that the damages sought by Mr. Myers were not “wages” within the meaning of the statute:

“ ‘Wages’ within the scope of Title 39, Chapter 3, are wages actually earned, and not wages which could have been earned but for an allegedly wrongful discharge .... Consequently, as a matter of law, Plaintiíf has no basis for a wage claim against defendant.”

Although this question has never been considered in Montana, the lower court found the reasoning in Como v. Rhines (1982), 198 Mont. 279, 645 P.2d 948, to be “instructive”. In that case, Mr. Como entered an oral employment contract with Mr. Rhines and Sound West, Inc. Relying upon that agreement, Mr. Como moved his family from Minnesota to Missoula, Montana, to begin employment. Soon after the move, Mr. Rhines informed Mr. Como that he did not have a job at Sound West. Mr. Como sued for breach of employment contract. The trial court held that a breach occurred and awarded damages, as well as penalties, costs, and attorney fees pursuant to Section 39-3-206 and -214, MCA. This Court concluded that Mr. Como never actually performed work for Sound West; therefore, he was not an employee within the meaning of the wage statutes. Como, 645 P.2d at 951. The damages resulted from a breach of employment contract and as such were more properly measured under Section 27-1-311, MCA, because the wage statutes were not applicable. Como, 645 P.2d at 951-52.

The question before us now is whether the wage statutes are applicable to Mr. Myers’ claim. The statutes refer to “wages earned” (Section 39-3-204(1)), “unpaid wages” (Section 39-3-205(1)), “wages due and unpaid” (Section 39-3-206), and “wages due” (Section 39-3-214(1)). In addition, Section 39-3-204(1), MCA, provides that “no person for whom labor has been performed may withhold from any employee any wages earned or unpaid.” We have located no case law under these or similar wage statutes which would allow statutory penalties to be applied to wages which could have been earned but were not earned because of an alleged breach of contract or wrongful termination. By the statutory description and references to wages earned, unpaid wages, and wages due and unpaid, it is apparent that the protection granted under the statutes is to apply to labor or services actually performed or completed, as distinguished from labor or services to be performed in the future. Here the plaintiff does not have a claim for wages earned or unpaid. He seeks recovery for amounts he could have earned had he been given the opportunity. We hold that Mr. Myers’s wage claim under Title 39, Chapter 3, MCA, was properly dismissed.

Mr. Myers argues that this Court in Ameline v. Pack and Company (1971), 157 Mont. 301, 485 P.2d 689, applied Section 39-3-102, MCA (previously Section 41-307, RCM (1947)), to a set of circumstances identical to his case. Evidently he believes Ameline is authority for this Court to apply the wage statutes to the present case. His argument is faulty for several reasons. This Court did not rely upon Section 39-3-102, MCA, in Ameline as Mr. Myers contends. That statute, which is concerned with the compensation of employees dismissed for cause, was inapplicable because the defendant in that case had failed to establish that the dismissal was for cause. The issue now before us was not before the Court in Ameline. Further, the provisions of Title 39, Chapter 3, Part 2, relied upon by Mr. Myers, are by their terms applicable only to wage claims within part 2. Section 39-3-102, MCA, cited in the Ameline opinion, falls within part I, a distinct part of what is now Chapter 3, Title 39. For these reasons Ameline clearly is distinguishable and not determinative of Mr. Myers’s case. We affirm the District Court’s order granting partial summary judgment on the plaintiffs wage claim.

HI

Was plaintiff entitled to recover penalties, attorney fees, and costs?

Mr. Myers sought penalties pursuant to Section 39-3-206, MCA, and costs and attorney fees pursuant to Section 39-3-214, MCA. We have already concluded that Title 39, Chapter 3, Part 2 is not applicable to Mr. Myers’s case. Therefore, the District Court properly refused to award penalties, fees, and costs under part 2.

Mr. Myers presents two other grounds for an award of fees and costs. He cites Section 25-10-711(1), MCA, which provides as follows:

“Award of costs against governmental entity when suit or defense is frivolous or pursued in bad faith. (1) In any civil action brought by or against the state ... or an agency of the state . . . the opposing party, whether plaintiff or defendant, is entitled to the costs enumerated in 25-10-201 and reasonable attorney’s fees as determined by the court if:
“(a) he prevails against the state ... or agency; and
“(b) the court finds that the claim or defense of the state ... or agency that brought or defended the action was frivolous or pursued in bad faith.”

Under this statute, Mr. Myers must establish that he was the prevailing party and that the State’s defense was frivolous or pursued in bad faith. The District Court, in explaining its judgment, concluded that the plaintiff had not prevailed in the action and also concluded that each party acted in good faith in bringing and defending the lawsuit. Without a transcript on appeal, we will not question the District Court’s finding of good faith. We hold that Mr. Myers has not presented grounds for an award of attorney fees and costs under Section 25-10-711, MCA.

Mr. Myers next argues that the District Court should have exercised its equity power to award attorney fees and costs. The District Court concluded that, in light of the offsets, the plaintiff had not prevailed and should not therefore recover either costs or attorney fees. As previously mentioned, the court also concluded that each party had acted in good faith in bringing and defending the lawsuit and that, in light of the result, each party should pay their own costs. In the absence of a complete record, we do not find any facts warranting reversal of the District Court’s decision.

We hold that Mr. Myers has failed to establish a contractual or statutory right to fees and costs. We affirm the order of the District Court which refused to award attorney fees and costs.

Affirmed.

MR. JUSTICES HARRISON, McDONOUGH, SHEEHY and GULBRANDSON concur.


author: MR. JUSTICE HUNT

text:
    In re the MARRIAGE OF MARY RUTH SAYLOR, Petitioner and Appellant, and WILLIAM PHILLIP SAYLOR, Defendant and Respondent.
    No. 87-438.
    Submitted on Briefs June 2, 1988.
    Decided June 13, 1988.
    756 P.2d 1149.

      Keller & German, Brenda Nordlund, Kalispell, for petitioner and appellant.
    Moore & Doran, James D. Moore, Kalispell, for defendant and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from a decree of dissolution entered by the District Court, Eleventh Judicial District, Flathead County, awarding respondent (husband) physical custody of the three minor children and ordering appellant (wife) to pay respondent support of $100 per child per month.

We affirm on the custody issue and reverse on the issue of child support and remand for reconsideration.

The issues presented to us by appellant wife are:

1. Did the District Court err by failing to properly apply “the best interests of the child” standard pursuant to Section 40-4-212, MCA?

2. Did the District Court err in determining child support to be paid by the wife?

3. Did the District Court err in denying wife’s motion for a new trial?

The parties were married according to common law in 1971. This marriage was dissolved by decree dated April 7, 1987. The couple had three children born of the marriage, Jessica, Nicole and Shayne. At the time of the dissolution, their ages were 14, 11 and 6, respectively. Currently, they reside with their father, a building contractor, and his companion, in Corona Del Mar, California. The wife is a teaching assistant at the University of Illinois in Champaign where she is pursuing a doctorate in education.

The residential history of this couple is confusing. Apparently, after their marriage, they moved to Whitefish and then to Kalispell. Between the years 1979 and 1982, they lived together and separately at various times and in various homes in both Missoula and Kalispell. The husband also spent several months in Arizona. When the couple lived apart, the children resided with the wife. The couple’s separation became permanent in 1982 and both resided separately in Kalispell until sometime in 1986, when they moved to their current separate residences. The wife relinquished physical custody of the children to their father, in July, 1983, and they have resided with him ever since. There seems to have been reasonable visitation allowed by both parties during their respective times as physical custodian.

The petition for dissolution in this action was filed in May, 1983. There were several hearings between June, 1984, and September, 1985, primarily regarding custody of the couple’s children. Proposed findings were due October 11, 1985. The District Court entered its decree of dissolution on April 7, 1987, nearly four years after the petition was filed, granting joint custody and giving physical custody to the husband. The wife was ordered to pay $300 per month in child support retroactive to January 1, 1986.

At the outset, this Court must comment that it is unsettled by the amount of time this case required before being brought to a resolution. Four years between petition and decree is an unreasonably long time for a relatively uncomplicated dissolution action. The victims of such a delay are the children. The blame for this delay, however, cannot be placed solely upon either parent. Some of the blame must also be placed upon the District Court. For whatever reason, the decree was not entered until 18 months after the case was submitted. This delay is inexcusable. If there is any civil matter that should be resolved as expediently as possible, it is a matter involving the custody of young children.

Issue 1

In a case involving custody issues, the standard used to review the District Court’s decision is that of abuse of discretion. The wife must demonstrate that the findings are clearly erroneous and overcome the presumption that the District Court’s judgment is correct. Rule 52(a), M.R.Civ.P.; In Re Marriage of Manus (Mont. 1987), [225 Mont. 457,] 733 P.2d 1275, 1276, 44 St.Rep. 398, 399-400, citing Bier v. Sherrard (Mont. 1981 [_ Mont. -,] ), 623 P.2d 550, 551, 38 St.Rep. 158, 159. Only when there is clear error will the District Court’s judgment be reversed. In Re Marriage of Rolfe (Mont. 1985), [216 Mont. 39,] 699 P.2d 79, 82, 42 St.Rep. 623, 626.

Appellant argues that the District Court failed to consider two of the factors requiring consideration under Section 40-4-212, MCA, which states;

“40-4-212. Best interest of child. The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors, including but not limited to:
“(1) the wishes of the child’s parent or parents as to his custody;
“(2) the wishes of the child as to his custodian;
“(3) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest;
“(4) the child’s adjustment to his home, school, and community;
“(5) the mental and physical health of all individuals involved;
“(6) physical abuse or threat of physical abuse by one parent against the other parent or the child; and
“(7) chemical dependency, as defined in 53-24-103, or chemical abuse on the part of either parent.”

From the facts of this case, it is clear that the factors necessary for decision are (1) through (4). There have been no issues raised as to:

(5) the mental or physical health of any of the individuals involved;

(6) physical abuse or threat of physical abuse against either parent or child; or (7) drug abuse by either parent.

The wife asserts that because no specific findings were made as to the interaction of the children with their parents and siblings and as to the children’s adjustment to their home, school, and community, the District Court abused its discretion in awarding physical custody to their father. We disagree and affirm the custody award of the District Court. This Court has stated on many occasions that the making of specific findings is not necessary where the record shows substantial evidence that supports the District Court’s judgment on the merits. In Re Marriage of Nalivka (Mont. 1986), [222 Mont. 84,] 720 P.2d 683, 686, 43 St.Rep. 1079, 1083; In Re Marriage of DiPasquale (Mont. 1986), [220 Mont. 497,] 716 P.2d 223, 225, 43 St.Rep. 557, 560; Custody of Ericka M. (Mont. 1984), [208 Mont. 201,] 676 P.2d 231, 233, 41 St.Rep. 267, 269; In Re Marriage of Speer (1982), 201 Mont. 418, 421, 654 P.2d 1001, 1003.

The District Court made several findings regarding the parent’s wishes, the children’s wishes, and the relationship between the husband and wife as it affected access to the children by the wife and as it may affect the husband’s access to the children if he were to lose physical custody. Evidence abounds in the record regarding the relationships between both parents and the children and the children’s’ adjustment to their home and community. The District Court does not make specific findings as to these factors but does note the recommendations and reports of a social worker and a psychologist both of which pertain to the above factors. We hold there was no abuse of discretion.

For efficiency’s sake, we will not address specific findings which the wife argues are in error. We find it necessary, however, to discuss the interpretation of Section 40-4-223, MCA, which the wife argues was incorrectly used by the District Court. The wife disputes the following finding:

“23. The Montana legislature has made it clear that, wherever feasible, both parties ought to have equal access to children in dissolution proceedings. Thus, joint custody is preferred. Further, both of these parties are capable of rearing the children. However, Petitioner’s anger and bitterness toward Respondent interfered with Respondent’s access to the children before the transfer of custody.” The wife contends that access to children only becomes an issue when legal custody is placed with one parent only and not when joint custody is granted. We do not agree. The relevant statute, Section 40-4-223, MCA, reads in pertinent part:
“(1) In custody disputes involving both parents of a minor child, the court shall award custody according to the best interests of the child as set out in 40-4-212:
“(a) to both parents jointly; the court shall inquire whether a joint custody agreement was made knowingly and voluntarily; or
“(b) to either parent. In making an award to either parent, the court shall consider, along with the factors set out in 40-4-212, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent and may not prefer a parent as custodian because of the parent’s sex.”

This statute appends an additional factor to be considered by the District Court when awarding legal custody to only one parent. The issue of access is not, by the statute’s terms, a necessary consideration when joint custody is being granted. Legal custody, which is the determination of legal rights and responsibilities of the parents toward the children, must not be confused with physical custody, that is, where the children actually live. Joint custody may involve equal physical custody of the children by both parents or it may entail one parent having substantially more or less actual physical custody of the children than the other parent. We find no error with the District Court’s finding, however, because, although the factor of access to one’s children is not a mandatory consideration in joint custody awards, we can find no reason why it should not be considered by the District Court so that it may find an arrangement that is in the best interest of the child and facilitates the declared public policy of this state to “assure minor children frequent and continuing contact with both parents.” See Section 40-4-222, MCA.

Issue 2

The wife contests the soundness of the District Court’s order to pay the husband $100 per month per child in child support, retroactive to January 1, 1986. In order to reverse an award of child support, the wife must show that a substantial injustice resulted from the court’s abuse of discretion. In Re Marriage of Jacobson (Mont. 1987), [228 Mont. 458,] 743 P.2d 1025, 1027, 44 St.Rep. 1678, 1680. The factors a court must consider when awarding child support are set out in Section 40-4-204, MCA, as follows:

“(1) In a proceeding for dissolution of marriage, legal separation, maintenance, or child support, the court may order either or both parents owing a duty of support to a child to pay an amount reasonable or necessary for his support, without regard to marital misconduct, after considering all relevant factors including:
“(a) the financial resources of the child;
“(b) the financial resources of the custodial parent;
“(c) the standard of living the child would have enjoyed had the marriage not been dissolved;
“(d) the physical and emotional conditions of the child and his educational needs;
“(e) the financial resources and needs of the noncustodial parent; and
“(f) for the purposes of determining a minimum amount for support, the amount received by children under the AFDC program, as defined in 53-2-702.”

A guideline formula for determining child support has been set forth in In Re Marriage of Carlson (Mont. 1984), [214 Mont. 209,] 693 P.2d 496, 499-500, 41 St.Rep. 2419, 2423. As we said in a later case, the factors involved in this computation include the child’s total needs, the physical custodial parent’s net earning capacity and the visitation parent’s net earning capacity. Hansen v. Jurgens (Mont. 1986), [222 Mont. 345,] 722 P.2d 1151, 1154, 43 St.Rep. 1316, 1319.

The District Court held that it was precluded from applying the Carlson formula because neither party had offered evidence of the child’s total needs. Although we have termed the Carlson formula a “guideline,” the factors it involves must be considered and it was error not to do so. See In Re Marriage of Keel (Mont. 1986), [223 Mont. 305,] 726 P.2d 812, 814, 43 St.Rep. 1742, 1746.

In addition, the District Court made no explicit findings regarding the wife’s net monthly income. Instead, it ordered the wife to pay 25% of her net expendable income in child support according to its own District Court guidelines on child support and set this figure at a total of $300 per month. This implies that the wife’s net income was $1,200 per month. This figure is totally without support on the record. We hold that the District Court abused its discretion in this matter and reverse and remand for a redetermination of the child support award.

For guidance upon remand we refer the District Court to the Uniform District Court Rules, Guidelines for Determining Child Support, Section III, Parts 1-14. Although these guidelines are not binding we strongly urge that the District Court consider them upon remand. In the Guidelines, the child’s needs are automatically assumed as a percentage of the parent’s total combined income instead of being determined separately.

In addition, the wife protests that the District Court abused its discretion by making the order 16 months retroactive. We hold that this is not error. There are several cases in which such awards have been affirmed. See, e.g., In Re Marriage of Revious (Mont. 1987), [226 Mont. 304,] 735 P.2d 301, 44 St.Rep. 674; In Re Marriage of Shirilla (Mont. 1987), [225 Mont. 106,] 732 P.2d 397, 44 St.Rep. 75; [In re Marriage of] DiPasquale,] [220 Mont. 497,] 716 P.2d 223, 43 St.Rep. 557. As the wife points out, however, these cases differ from her case in that the noncustodial parent in all the above cases earned a substantially greater income than the physical custodian. While we do not hold that it was reversible error to apply the wife’s child support obligations retroactively, we strongly suggest that, upon remand, the District Court take the parties’ income differences into consideration.

Issue 3

Since we have remanded this case for a redetermination of the child support award, it is unnecessary to discuss whether the District Court erred by not granting the wife’s motion for a new trial. We advise the District Court, however, that the recent change in circumstances that has taken place for both parties should be considered upon remand as required by the Guidelines for Child Support, [227 Mont. 1,] Section III, Part 14.

Affirmed in part, reversed in part and remanded for reconsideration of the child support award.

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