text:
    IN THE MATTER OF THE PATERNITY OF KATHRYN ROCHELLE VAINIO, a minor child, MARGERY LaFOURNAISE VAINIO, JANET C. SCHEELER, PAUL LaFOURNAISE, ANGELA WALTERS and MICHAEL LaFOURNAISE, Petitioners and Appellants, v. KEVIN E. VAINIO and PHILLIP LaFOURNAISE, Respondents.
    No. 96-579.
    Submitted on Briefs May 15, 1997.
    Decided August 19, 1997.
    54 St.Rep. 858. 943 P.2d 1282.
    284 Mont. 229.

      For Appellants: Mark P. Yeshe, Attorney at Law, Helena.
    For Respondents: J. Richard Orizotti; Poore, Roth & Robinson, Butte; Kurt Krueger, Attorney at Law, Butte.
   JUSTICE GRAY

delivered the Opinion of the Court.

Margery LaFournaise Vainio (Margery) and Janet C. Scheeler, Paul LaFournaise, Angela Walters and Michael LaFournaise (the siblings) appeal from the judgment entered by the Second Judicial District Court, Silver Bow County, on its order granting the motions to dismiss filed by Kevin Vainio (Kevin) and Phillip LaFournaise (Phillip). We affirm.

We address the following issues on appeal:

1. Did the District Court err in concluding that Margery was estopped from challenging the father-child relationship between Kevin and Kathryn Rochelle Vainio and, on that basis, in granting Kevin’s and Phillip’s motions to dismiss?

2. Did the District Court err in concluding that the siblings of Kathryn Rochelle Vainio lacked standing to bring a paternity action and, on that basis, in granting Kevin’s and Phillip’s motions to dismiss?

FACTUAL BACKGROUND

Margery’s and Phillip’s marriage was dissolved in March of 1980. The siblings involved in the present action are the adult children of that marriage.

Margery and Kevin entered into a common law marriage in September of 1985, and Kathryn Rochelle Vainio (Kathryn) was born the following month. Kevin petitioned for dissolution of his marriage to Margery in 1992. In the course of that proceeding, Margery challenged Kevin’s paternity of Kathryn. After blood tests revealed that Kevin was not Kathryn’s biological father, Margery sought sole custody of Kathryn. The district court determined that the doctrine of equitable estoppel prevented Margery from denying the existence of a father-child relationship between Kevin and Kathryn and we affirmed on appeal. In re Marriage of K.E.V. (1994), 267 Mont. 323, 334, 883 P.2d 1246, 1253.

Several months after this Court’s decision in Marriage ofK.E.V., Margery and the siblings filed a “Petition to Determine the Existence of a Father and Child Relationship” requesting, in part, that the District Court “determine that Phillip LaFoumaise is the natural father of Kathryn... and that Kevin E. Vainio is not the natural father of Kathryn ....” They named Kevin and Phillip as the respondents to the petition and, thereafter, both Kevin and Phillip moved to dismiss the petition for failure to state a claim upon which relief could be granted. The District Court dismissed the petition with prejudice, concluding that Margery is estopped from challenging the father-child relationship between Kevin and Kathryn pursuant to our decision in Marriage of K.E.V. and that the siblings lack standing to bring the petition. Margery and the siblings appeal.

STANDARD OF REVIEW

A petition may be dismissed for failure to state a claim only when it appears beyond doubt that the petitioner can prove no set of facts in support of the petition which would entitle her to relief. See Hollister v. Forsythe (1996), 277 Mont. 23, 26, 918 P.2d 665, 667. The petition is construed in the light most favorable to the petitioner and all allegations of fact therein are taken as true. Hollister, 918 P.2d at 667. A district court’s determination that a petition fails to state a claim upon which relief can be granted is a conclusion of law, and we review a district court’s conclusions of law to determine whether the interpretation of the law is correct. Hollister, 918 P.2d at 667.

DISCUSSION

1. Did the District Court err in concluding that Margery was estopped from challenging the father-child relationship between Kevin and Kathryn and, on that basis, in granting Kevin’s and Phillip’s motions to dismiss?

Margery previously challenged Kevin’s paternity of Kathryn during the dissolution proceeding which ended their marriage. Although it was established that Kevin is not Kathryn’s biological father, Margery’s representations to Kevin, before and after Kathryn’s birth, led him to believe that he was Kathryn’s father and to act upon that belief. The district court in that case concluded that the doctrine of equitable estoppel prevented Margery from contesting the statutory presumption that Kevin is Kathryn’s natural father and we affirmed. Marriage of K.E.V., 883 P.2d at 1253. Our holding in Marriage of K.E.V. clearly prevents Margery from contesting the existence of a father-child relationship between Kevin and Kathryn. Marriage of K.E.V., 883 P.2d at 1253.

Margery argues, however, that she is not precluded from establishing that Phillip is Kathryn’s biological father because such a determination would not necessarily defeat Kevin’s parental rights. She contends that, in Marriage of KE.V., this Court expressly created a situation in which Kathryn may have two legally recognized fathers and that she is merely seeking to establish Phillip’s paternity, in addition to Kevin’s, in the case presently before us. Margery relies on our observation in Marriage ofKE.V. that the identity of Kathryn’s biological father was not at issue in that case and our statement that

[t]he holding of this opinion does not in any way bar the biological father or the child, [Kathryn], from commencing a proceeding to determine the identity of the biological father.

Marriage of K.E.V., 883 P.2d at 1253.

Margery’s reliance on this language is misplaced. While we left the door open for a proceeding by either Kathryn or her biological father to determine her biological father, we did not authorize Margery to do so.

Moreover, we have held that when a child has a presumed father under § 40-6-105, MCA, a person wishing to establish the existence of a father-child relationship between a child and a nonpresumed father must first rebut the statutory presumption of paternity in another. Borchers v. McCarter (1979), 181 Mont. 169,175-76,592 P.2d 941, 945. Kevin is presumed to be Kathryn’s natural father because he and Margery were married at the time Kathryn was born, he received Kathryn into his home and he held her out to be his natural child. See §§ 40-6-105(l)(a) and 40-6-105(l)(d), MCA; Marriage of K.E.V., 883 P.2d at 1250. It is undisputed that Phillip meets none of the § 40-6-105(1), MCA, criteria for establishing a presumption that he is the natural father of Kathryn.

Thus, in order for Margery to establish that Phillip — a nonpresumed person pursuant to § 40-6-105(1), MCA — is the natural father of Kathryn, it would be necessary for her to first rebut the presumption that Kevin is Kathryn’s father. We concluded in Marriage of K.E.V., however, that Margery is equitably estopped from contesting the presumption of Kevin’s paternity. Marriage of K.E.V., 883 P.2d at 1253. Because she cannot rebut Kevin’s presumed paternity, we conclude that Borchers precludes Margery from establishing paternity in Phillip. See Borchers, 592 P.2d at 945.

Margery also argues that dismissal of her petition violates her right to equal protection of the laws under the Montana and United States Constitutions. She contends that because Kathryn and Phillip, or any other man asserting paternity, retain the right to bring a paternity action, denying her the same opportunity denies her a fundamental right and violates equal protection principles.

This Court has recognized that parental rights are constitutionally protected. See, e.g., Matter of Guardianship of Doney (1977), 174 Mont. 282, 286, 570 P.2d 575, 577. A natural parent has a fundamental constitutional right to the custody of his or her child; this right is based on the integrity of the family unit, which necessarily includes a child’s right to be with his or her natural parent. In re A.R.A. (1996), 277 Mont. 66, 71, 919 P.2d 388, 391.

The cases in which we have addressed this constitutional right, however, have involved situations where a parent asserted his or her own parental right to the custody of a child. See, e.g.,Doney, 570 P.2d at 576; Matter of Guardianship of Aschenbrenner (1979), 182 Mont. 540, 597 P.2d 1156; Matter of M.G.M. (1982), 201 Mont. 400, 654 P.2d 994; Babcock v. Wonnacott (1994), 268 Mont. 149, 885 P.2d 522; In re A.R.A., 919 P.2d at 390. Moreover, Stanley v. Illinois (1972), 405 U.S. 645, 31 L.Ed.2d 551, 92 S.Ct. 1208, and Little v. Streater (1981), 452 U.S. 1, 68 L.Ed.2d 627, 101 S.Ct. 2202, which Margery cites as authority for her argument here, also involved situations where a party asserted his constitutional right to assert or deny his own parental relationship with a child. These cases are inapplicable to the situation presently before us where Margery is attempting to assert a constitutional right to establish a familial relationship between two other people.

Margery’s right to custody of Kathryn is not at issue here; the respective parental rights of both she and Kevin to custody ofKathryn previously have been determined. Marriage of K.E.V., 883 P.2d at 1248. Instead, this case involves Margery’s effort to establish Phillip’s paternity of Kathryn. Margery cites to no authority, and we know of none, which recognizes a fundamental constitutional right in one person to a determination of a parent-child relationship between two others. We conclude that preventing Margery from asserting a parent-child relationship between Phillip and Kathryn does not violate her right to equal protection under the Montana and United States Constitutions.

We hold that the District Court did not err in concluding that Margery was estopped from challenging the father-child relationship between Kevin and Kathryn and, on that basis, in granting Kevin’s and Phillip’s motions to dismiss.

2. Did the District Court err in concluding that the siblings of Kathryn lacked standing to bring a paternity action and, on that basis, in granting Kevin’s and Phillip’s motions to dismiss?

The District Court concluded that because the siblings and Kathryn had established and maintained brother-sister relationships through Margery, their common parent, the siblings had no personal stake in the outcome of a paternity action against Phillip and Kevin and, therefore, lacked standing to proceed. The siblings argue that the District Court erred as a matter of law because their interest in establishing a full-blood relationship with Kathryn satisfies the requirement that they have a personal stake in the outcome of the paternity action and because § 40-6-107(1), MCA, which allows “any interested party” to bring a paternity action to determine the existence or nonexistence of a presumed father-child relationship, authorizes them to pursue the action. We disagree.

A threshold requirement of every case is that a party have standing to bring the action. Bowen v. McDonald (1996), 276 Mont. 193, 201, 915 P.2d 201, 206. A party has no standing when there is no personal stake in the outcome of the controversy. In re Estate of Goick (1996), 275 Mont. 13, 19, 909 P.2d 1165, 1169. The mere fact that a person is entitled to bring an action under a given statute is insufficient to establish standing; the party must allege some past, present or threatened injury which would be alleviated by successfully maintaining the action. Sanders v. Yellowstone County (1996), 276 Mont. 116, 119, 915 P.2d 196, 197-98. Thus, without regard to whether the siblings are “interested parties” for purposes of bringing a paternity action under § 40-6-107(1), MCA, they first must establish that they have a personal stake in the outcome of the paternity action.

The siblings base their assertion of standing to bring the petition on their personal interest in establishing full-blood relationships with Kathryn. They fail to show, however, how establishing paternity in Phillip will alter or improve their current relationship with Kathryn in any way. They currently enjoy a blood relationship between themselves and Kathryn through their common parent, Margery, and that relationship is neither placed at risk nor otherwise adversely impacted if Phillip is not established as Kathryn’s biological father. Nor is there any indication in the record that establishing Phillip’s paternity would benefit the siblings’ relationship with Kathryn. We conclude that the determination of a father-child relationship between Phillip and Kathryn would have no effect on the siblings’relationship with Kathryn and, therefore, the siblings have not established that they have any personal stake in the outcome of this paternity action. We hold, therefore, that the District Court did not err in concluding that the siblings lacked standing to bring the petition and in granting Kevin’s and Phillip’s motions to dismiss on that basis.

Affirmed.

JUSTICES TRIEWEILER, HUNT, NELSON and LEAPHART concur.


source: Caselaw Access Project

author: JUSTICE REGNIER JUSTICE NELSON

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOHN MORALES, Defendant and Appellant.
    No. 97-075.
    Submitted on Briefs July 17, 1997.
    Decided August 19, 1997.
    54 St.Rep. 862. 943 P.2d 1286.
    284 Mont. 237.

      For Appellant: Michael G. Moses, Moses Law Firm, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Cregg W. Coughlin, Assistant Attorney General; Helena; Ken W. Hoversland, Daniels County Attorney, Scobey.
   JUSTICE REGNIER

delivered the Opinion of the Court.

John Morales was charged by complaint on December 30, 1995, with assault upon a sports official, a misdemeanor, in violation of § 45-5-211, MCA. Morales was tried by a jury in the Daniels County Justice Court and was found guilty. Morales appealed this conviction to the District Court. Prior to trial in the District Court, counsel for Morales filed a motion for a continuance and a motion to withdraw as counsel. The Fifteenth Judicial District Court, Daniels County, allowed Morales’s counsel to withdraw but denied the motion to continue. A District Court jury heard the case de novo pursuant to § 25-33-301, MCA, and returned a verdict of guilty. Morales appeals from the sentence and judgment of the District Court and from the order denying his motion to continue. Affirmed in part and reversed in part.

The following issues are presented on appeal:

1. Did the District Court abuse its discretion in denying Morales’s motion for a continuance?

2. Did the District Court err in ordering Morales to pay the Justice Court costs as part of the sentence imposed by the District Court?

FACTUAL BACKGROUND

On December 30, 1995, John Morales was a participant in a basketball game during the Scobey Invitational Basketball Tournament, held at Scobey High School. During the game, Morales became upset when a technical foul was called on another ballplayer. Morales approached the scorer’s table and demanded to know who was running the game and said he wanted to talk to the person in charge. One of the score keepers, Dave Selvig, told Morales that the technical foul was called against the other participant because of comments he made to the official. Morales responded to Selvig with an obscenity and stepped back onto the court. Selvig replied with a “thank you.” Morales turned back toward the scorer’s bench, leaned forward, and spat towards the scorer’s bench, hitting Selvig with his spittle.

After observing Morales’s behavior, James Lekvold, the referee, blew his whistle and gave the signs for a technical foul and for an ejection. Lekvold told Morales to leave the basketball court. Morales then pushed Lekvold backward into the scorer’s bench and punched him in the face with his fists. Morales was charged by complaint with assault on a sports official, a misdemeanor, in violation of § 45-5-211, MCA.

On August 27, 1996, Morales appeared with his counsel and was tried by a jury in the Daniels County Justice Court and found guilty. He appealed his conviction to the District Court.

On September 17, 1996, the Fifteenth Judicial District Court, Daniels County, set the matter for jury trial on October 30 and 31, 1996. On October 22, 1996, eleven subpoenas for witnesses were issued by the Clerk of Court. On October 28, 1996, two days before the scheduled trial date, counsel for Morales filed a motion for continuance and a motion to withdraw as counsel. The reason stated was that Morales no longer wanted his attorney to represent him. The District Court denied the motion for a continuance and faxed the order of denial to the parties on the morning of October 28, 1996.

On October 29, 1996, the day before the scheduled trial, Morales sent a letter to the Clerk of the District Court requesting a continuance and indicated that he had fired his attorney. The next day, Morales appeared in court with his attorney and the motion for a continuance was again considered. The District Court concluded that Morales had not shown good cause for his last minute motion for a continuance. The District Court informed Morales that he had the choice between proceeding with his retained attorney or on his own. Morales reiterated his desire to not be represented by his attorney. The District Court allowed Morales’s attorney to withdraw but again denied the motion for a continuance.

The matter proceeded to trial with Morales representing himself. The jury returned a verdict of guilty. On December 3, 1996, Morales was sentenced to a jail term of thirty days with twenty-seven days suspended. However, the jail sentence was deferred on the condition that Morales pay a $500 fine, along with the Justice Court jury costs in the amount of $415.80, and the District Court costs. Morales appeals from the sentence and judgment of the District Court.

ISSUE 1

Did the District Court abuse its discretion in denying Morales’s motion for a continuance?

The controlling statute to determine whether the District Court should have granted Morales’s motion for a continuance is § 46-13-202(3), MCA. The statute states:

All motions for continuance are addressed to the discretion of the trial court and must be considered in the light of the diligence shown on the part of the movant. This section must be construed to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the prosecution to a speedy trial.

The standard of review of a district court’s denial of a motion for continuance is whether the district court abused its discretion. State v. Haskins (1992), 255 Mont. 202, 207, 841 P.2d 542, 545 (citing State v. LaPier (1990), 242 Mont. 335, 790 P.2d 983).

Morales argues that the District Court abused its discretion in denying his motion for a continuance. Morales claims that he and his attorney were incompatible and that he acted diligently in seeking a continuance in order to secure another attorney. Morales contends that the District Court’s denial of his motion for a continuance resulted in prejudice to his defense and an unfair trial.

The State counters that the District Court’s denial of Morales’s motion for continuance is not prejudicial because it is based on Morales’s lack of diligence. The State argues that Morales had no legitimate reason for continuing the trial date. The State points out that in the Justice Court proceeding, Morales did the same thing by firing his attorney shortly before trial and requesting a continuance in order to delay the proceeding.

The record reveals that the sole basis for Morales’s motion to continue was that he had fired his attorney less than a week before trial because they were incompatible and, thus, he needed more time to secure another attorney to represent him before the District Court trial could start. However, the District Court stated that if Morales felt that his retained attorney was inadequate to represent him, he should have known long before the scheduled trial because this was the same attorney that represented him in the Justice Court proceeding. Moreover, at the hearing on the motion, Morales admitted that he had not hired another attorney nor did he disclose any efforts on his part to hire another attorney before trial.

We conclude that the District Court did not abuse its discretion in denying Morales’s motion to continue. Morales failed to demonstrate the requisite diligence in seeking the continuance. He appeared for the scheduled trial without a new attorney. His conduct in the District Court was a replay of the same tactic he used in the Justice Court to gain a continuance. Under such circumstances, the District Court could rightfully conclude that no legitimate reason existed for a continuance. Furthermore, the State and the District Court were willing to agree to a continuance if Morales could post a sufficient bond to cover the expenses incurred in bringing the witnesses and jurors to the court. However, Morales was unwilling to post the additional bond.

We conclude that the District Court did not abuse its discretion in denying the motion. We affirm the District Court’s denial of Morales’s motion for a continuance.

ISSUE 2

Did the District Court err in ordering Morales to pay the Justice Court costs as part of the sentence imposed by the District Court?

Morales argues that the District Court lacked the authority to order him to pay Justice Court jury costs. Morales cites City of Billings v. Smith (1997), [281 Mont. 133], 932 P.2d 1058, for the proposition that the imposition of Justice Court jury costs is an improper exercise of the District Court’s sentencing authority. Section 46-17-311(1), MCA, provides that:

Except for cases in which legal issues are preserved for appeal pursuant to 46-12-204, all cases on appeal from a justice’s or a city court must be tried anew in the district comb and may be tried before a jury of six selected in the same manner as for other criminal cases.

In Smith, we construed § 46-17-311(1), MCA, and stated:

[A]n appeal to the district court for a trial de novo begins a new proceeding against the defendant. In appeals to the district court, only costs in connection with the district court proceeding may be imposed as a part of the sentence. Section 46-18-201(l)(b), MCA; § 46-18-232, MCA.

Smith, [281 Mont. 133], 932 P.2d at 1063. In Smith’s case, this Court stated that the imposition of costs associated with justice court proceedings was an improper exercise of the district court’s sentencing authority.

The State contends that this determination in Smith was in error and asks this Court to overrule it. The State argues that whenever a person has been found guilty of an offense, the court may, among other things, order the defendant to pay the costs of confinement, court-appointed counsel, and the costs of jury service “specifically incurred by the prosecution in connection with the proceedings against the defendant” pursuant to §§ 46-18-201 and -232, MCA. The State asserts that although the trial in district court is de novo, the costs incurred prior to the new trial should not be erased. Furthermore, the State contends that a defendant who was found guilty by a jury trial in the justice court and ordered to pay costs may simply appeal to district court and plead guilty in order to escape payment of the justice court costs.

We are not persuaded by the State’s argument. As § 46-17-311(1), MCA, states: “[A]ll cases on appeal from a justice’s or a city court must be tried anew in the district court.” Once a trial is started anew in the district court, any costs taxed to a defendant as part of a judgment and sentence imposed by a justice court are erased.

This Court reaffirms our ruling in City of Billings v. Smith (1997), [281 Mont. 133], 932 P.2d 1058. The costs associated with the Justice Court proceedings are not costs associated with the District Court proceedings against Morales following appeal for trial de novo, and therefore, the Justice Court costs could not be imposed by the District Court as part of Morales’s sentence.

In conclusion, the District Court did not abuse its discretion when it denied Morales’s motion for a continuance. However, the District Court did exceed its statutory authority by imposing the Justice Court jury costs as part of Morales’s sentence. The sentence and judgment of the District Court ordering Morales to pay Justice Court jury costs in the amount of $415.80 is vacated, and the case is remanded to the District Court for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and HUNT concur.

JUSTICE NELSON

specially concurs:

I concur with our decision on Issue 1. I specially concur with our decision on Issue 2 only because our decision in City of Billings v. Smith (1997), [281 Mont. 133], 932 P.2d 1058, is the controlling precedent on this issue. Since I was not on the panel that decided Smith, I write separately at this time to express my disagreement with our decision in that case, however.

At the outset, I observe that the only issue considered by this Court on appeal in Smith was whether the district court erred in failing to adequately inquire into Smith’s complaints of ineffective assistance of counsel. Smith, [281 Mont. 133], 932 P.2d at 1059. The matter of the assessment of justice court costs following Smith’s trial de novo was decided by this Court in the final paragraph of the Smith opinion. Smith, [281 Mont. 133], 932 P.2d at 1063. If one reviews the underlying briefs in Smith, it will be noted that Smith did not argue on appeal that the district court could not impose jury costs of the limited jurisdiction court proceedings because in a trial de novo everything starts “from scratch.” Rather, Smith argued that he was being punished for exercising his constitutional right to a jury trial because the district court required him to pay the costs of both proceedings. Smith argued judicial vindictiveness, and the State responded in that context and, I believe, rebutted Smith’s arguments. The proposition that because Smith’s district court trial was de novo, the district court was somehow precluded from imposing the jury costs levied as a result of the limited jurisdiction court proceedings was essentially a theory of our own creation, sua sponte. In my view and for the following reasons, I believe that this ruling was in error and should be overruled.

First, I am not aware of any statute which prohibits the district court from imposing costs lawfully assessed by a court of limited jurisdiction against the defendant following trial de novo. Section 46-17-311(1), MCA, cited in Smith and in the case at bar, merely states that a case appealed from a justice or city court must be tried anew; this statute, neither explicitly nor implicitly, forbids the district court from reimposing the costs assessed in a limited jurisdiction court as part of the sentence in the district court.

Second, § 46-18-201, MCA, defines the sorts of sentences which may be imposed by a court on a plea or verdict of guilty. This section applies to both the courts of limited jurisdiction and the district court in criminal proceedings. Section 46-1-103, MCA. Section 46-18-201, MCA, refers to § 46-18-232, MCA. This latter section provides at (1) that

[a] court may require a convicted defendant in a felony or misdemeanor case to pay costs, as defined in 25-10-201, plus costs of jury service as a part of his sentence. Such costs shall be limited to expenses specifically incurred by the prosecution in connection with the proceedings against the defendant. [Emphasis added.]

As the State correctly argues, jury costs incurred by the government in a justice or city court trial are, in fact, “incurred by the prosecution in connection with the proceedings against the defendant.” A misdemeanor case does not even get to the district court without first exhausting a trial in one of the courts of limited jurisdiction.

While a trial de novo in district court is a “new” trial of the charges (as opposed to the appellate review of city or justice court proceedings), it does not follow that the limited jurisdiction court proceedings are thereafter a complete nullity. Indeed, the charges are the same, the charging document is the same, typically the same prosecutor prosecutes both cases, and likely, the same witnesses will be called and the same evidence presented in both trials. In short, the limited jurisdiction court and district court trials are simply different phases of one systematic process designed to prosecute a defendant for a specific offense or offenses. In the language of the statute, both trials are had “in connection with the proceedings against the defendant.” Section 46-18-232(1), MCA.

Finally, perhaps the biggest criticism of the whole concept of appeal by trial de novo is that it is inefficient and is a colossal waste of time, of money and of prosecutorial and judicial resources. That a convicted defendant who has been found by a justice of the peace or city court judge to have the financial ability to repay certain costs and expenses of his or her prosecution may simply erase that obligation by demanding a trial de novo lends a good deal of credibility to the arguments of the present system’s critics.


author: JUSTICE HUNT

text:
    WASTE MANAGEMENT PARTNERS OF BOZEMAN, LTD., d/b/a THREE RIVERS DISPOSAL COMPANY, Appellant, v. MONTANA DEPARTMENT OF PUBLIC SERVICE REGULATION, MONTANA PUBLIC SERVICE COMMISSION, and HARRY ELLIS, d/b/a/ CUSTOMIZED SERVICES, Respondents.
    No. 96-525.
    Submitted on Briefs May 15, 1997.
    Decided August 26, 1997.
    54 St.Rep. 866. 944 P.2d 210.
    284 Mont. 245.

      For Appellant: William Andrew Wilson, Denver, Colorado; John Alke, Hughes, Kellner, Sullivan & Alke, Helena.
    For Respondent: Denise Peterson, Montana Public Service Commission, Helena; Jerome Anderson, Helena.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Three Rivers Disposal Company (Three Rivers), formerly Waste Management Partners of Bozeman, Ltd., appeals from the decision issued by the First Judicial District Court, Lewis and Clark County, affirming upon judicial review the order of the Montana Public Service Commission (PSC) granting Harry Ellis d/b/a Customized Services (Ellis) a Class D certificate to transport garbage in Madison and Gallatin Counties. We affirm the District Court.

The following issues are presented on appeal:

1. Did the PSC apply the correct standard for granting Class D certification?

2. Did the District Court err when it affirmed the PSC’s finding that Ellis was a fit applicant?

3. Did the District Court err when it affirmed the PSC’s finding that the public convenience and necessity required that it authorize Ellis’ service?

4. Did the District Court err when it affirmed the PSC’s finding that Three Rivers would not be impaired by granting Ellis’ application?

5. Did the PSC err by failing to follow its own precedent, and if so, did it err by failing to provide a reasoned explanation for its departure from that precedent?

FACTUAL BACKGROUND

Three Rivers has hauled the majority of garbage in Gallatin and Madison Counties since 1983. On three occasions, Ellis has filed an application with the PSC for a Class D certificate to transport waste products on routes within those same counties and thereby directly compete with Three Rivers. Each time, Three Rivers has protested Ellis’ application on the grounds that granting the certificate would infringe upon its area of operations and harm both it and its customers.

Ellis d/b/a Rozel Corp. filed his first application in 1984. The PSC denied that application, finding that the grant of authority would have a negative impact upon Three Rivers and the public. (Ellis I) It found that the “public convenience and necessity” for an additional garbage service had not been established, because there was no evidence of unmet demand and few concerns regarding the adequacy of Three Rivers’ service or its rates. Additionally, the recent history of the area demonstrated that competition would adversely impact Three Rivers and the consumer. The public’s need for stability at that time outweighed any advantages brought by competition. The Montana Supreme Court upheld the PSC’s decision in Rozel Corp. v. Dept. of Pub. Serv. Regulation (1987), 226 Mont. 237, 735 P.2d 282.

Ellis filed a second application in 1987. (Ellis II) The PSC rejected his application without a hearing.

The third application, which is the subject of this appeal, was filed on January 20, 1994. After conducting hearings in Bozeman, Montana, on April 13 and 14, 1994, and in Ennis, Montana, on May 11, 1994, the PSC granted Ellis’ application on December 9, 1994. The PSC found that Ellis was fit to provide service; that there was súbstantial unmet consumer need for additional service; that Three Rivers would not be harmed by the grant of the application; and that competition would promote the public interest with improved service. Three Rivers moved the PSC to reconsider its order, which the PSC denied on April 24,1995.

Three Rivers petitioned for judicial review of the PSC’s decision to the First Judicial District Court, Lewis and Clark County. The District Court affirmed the PSC, holding that the PSC properly considered Ellis’ application and that the facts presented in 1994 were vastly different from those in 1984 when the PSC denied Ellis’ application. It further held that substantial credible evidence supported the PSC’s determinations. Three Rivers appeals from the District Court’s decision.

STANDARD OF REVIEW

Section 2-4-704, MCA, sets forth the standards for judicial review of an administrative agency’s decision. Under those statutory standards, conclusions of law will be reversed if they are incorrect. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. The Court defers to an agency’s interpretation of a statute that it administers. Norfolk Holdings v. Dept. of Revenue (1991), 249 Mont. 40, 44, 813 P.2d 460, 462.

An agency’s findings of fact will be reversed only if they are clearly erroneous. Steer, Inc., 803 P.2d at 603. In Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 820 P.2d 1285, the Court adopted a three-part test to determine if a finding is clearly erroneous. First, the Court will review the record to see if the findings are supported by substantial evidence. If they are, the Court will next determine whether the finder of fact has misapprehended the effect of the evidence. Third, the Court will review the record to determine whether it is left with the “definite and firm conviction that a mistake has been committed.” DeSaye, 820 P.2d at 1287 (citing U.S. v. U.S. Gypsum Co. (1948), 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746).

ISSUE ONE

Did the PSC apply the correct standard for granting Class D certification?

As stated earlier, the Court reviews an agency’s conclusions of law to determine whether its interpretation of the law is correct. Steer, Inc., 803 P.2d at 603.

Section 69-12-323, MCA, sets forth the factors the PSC must consider when rendering a decision on an application for a Class D motor carrier certificate to transport waste materials:

(2)(a) If after hearing upon application for a certificate, the commission finds from the evidence that public convenience and necessity require the authorization of the service proposed or any part thereof, as the commission shall determine, a certificate therefor shall be issued. In determining whether a certificate should be issued, the commission shall give reasonable consideration to the transportation service being furnished or that will be furnished by any railroad or other existing transportation agency and shall give due consideration to the likelihood of the proposed service being permanent and continuous throughout 12 months of the year and the effect which the proposed transportation service may have upon other forms of transportation service which are essential and indispensable to the communities to be affected by such proposed transportation service or that might be affected thereby.
(b) For purposes of Class D certificates, a determination of public convenience and necessity may include a consideration of competition.

The PSC interpreted § 69-12-323, MCA, as requiring it to address five factors when considering Ellis’ application. Those factors are:

1. Is the applicant fit and able to perform the proposed service?
2. Does the public convenience and necessity require the authorization of the proposed service?
3. Can and will existing carriers meet the public need for the proposed service?
4. Would the proposed service have an adverse impact on existing transportation services?
5. (discretionary for Class D applications, only) If there is a public need for the service and applicant is fit to provide the service (even if existing carriers could meet the need or might be harmed by granting the application), would competition with the existing carriers promote the public interest? (Emphasis added.)

In summarizing these factors, the PSC concluded that an applicant “must show that the public convenience and necessity require the proposed service,” and that the PSC “may consider competition as a factor in determining public convenience and necessity.”

Three Rivers argues that the PSC’s interpretation of the factors it must consider is incorrect, and the District Court erred when it implicitly embraced them. Specifically, it takes issue with the emphasized portion of the fifth factor outlined above wherein the PSC stated it had discretionary authority to evaluate whether competition provided by a fit applicant would promote the public interest, even if existing carriers could meet the need or might be harmed. It argues that the PSC can consider the benefits of competition to the public interest only after first finding that the existing services are inadequate, that there will be no economic impairment to the existing services, and that the applicant is fit.

We first note that Three Rivers’ concerns are hypothetical only, because in fact, the PSC did find that Three Rivers’ service was inadequate; it did find that Three Rivers would not suffer economic impairment by the grant of the additional authority; and it did find that Ellis was a fit applicant. Moreover, before conducting any evaluation of competition, the PSC made the threshold determination that the applicant was fit. Thus, even were this Court to accept Three Rivers’ analysis of the PSC’s decision and to adopt Three Rivers’ arguments, Three Rivers would not prevail.

In any event, we hold that PSC employed the correct standard. The heart of Three Rivers’ contentions actually appears to center on the interplay between the consideration of competition as a factor in granting authority and how that consideration affects Three Rivers economically. As Three Rivers itself correctly stated in Rozel Corp., the legislature has chosen to partially regulate the garbage industry in Montana. Rozel Corp., 735 P.2d at 285. By enacting Section 69-12-323(2)(b), MCA, it has given the PSC the discretion to consider competition in order to handle potential harmful monopoly situations. Rozel Corp., 735 P.2dat285. Consideration of competition may be beneficial in some cases, although certainly not in all cases.

Inherent in the concept of competition is the notion that the new applicant may take away some business of the existing transport service. This alone will not mandate that the PSC deny the application. Rather, the issue is whether under the particular factual circumstance of the case, competition would impose undue hardship and impair the existing transport’s ability to provide service to an extent contrary to public interest. This can only be decided on a case-by-case basis in conjunction with a consideration of the other elements the PSC outlined above.

When determining whether the public convenience and necessity requires the PSC to authorize an additional authority, the legislature placed no limits on the order in which the PSC must evaluate competition as Three Rivers suggests. The PSC can properly consider competition as one additional factor in assessing the public convenience and necessity.

In this case, after considering the threshold issue of whether Ellis was a fit applicant, and after finding that there was an unmet public need, the PSC then properly weighed the particular factual circumstances to determine whether competition would be beneficial to the public convenience and necessity. It did not view competition as a stand-alone controlling element, but rather as only one factor in the context of the principles of motor carrier regulation. We hold that the PSC used the proper legal standards.

ISSUE TWO

Did the District Court err when it affirmed the PSC’s finding that Ellis was a fit applicant?

When evaluating whether an applicant is fit, willing and able to provide service, the PSC considered the following factors:

1. The financial condition of applicant;

2. The intention of the applicant to perform the service sought;

3. The adequacy of the equipment the applicant has to perform the

service;

4. The experience of the applicant in conducting the service sought;

and

5. The nature of the previous operations, if there are allegations of

illegal operations.

Three Rivers asserts that Ellis was not a fit applicant, because (1) he owns only two older garbage trucks — a 1975 Del Rio and a 1983 Ford; (2) he does not employ a full-time mechanic; and (3) his net worth is only $293,000. However, the PSC found no evidence that Ellis’ equipment was in disrepair, required a full-time mechanic, or would otherwise fail to meet the garbage rounds. Additionally, the performance of the job duties does not require garbage haulers to own the newest or most technologically advanced equipment. Although his equipment may be older, Ellis’financial records indicated that he had the capability to operate and maintain his present equipment and to acquire new equipment as needed. Additionally, with regard to the other criteria considered by the PSC, Ellis intends to perform garbage-hauling services year-round. He also had many years of prior experience hauling garbage in Texas and even in Montana on a contract basis.

Three Rivers next claims that Ellis is unfit because Ellis has allegedly operated illegally in the past. Three Rivers first refers to an incident wherein Ellis allegedly hauled garbage without proper authority. However, the PSC found that although Ellis had received a citation for hauling without authority, some of that hauling was actually exempt demolition work. Ellis’ citation was thus reduced upon his appearance in court. The record supports the PSC’s findings. Indeed, according to testimony, the court had dismissed his fine and only ordered Ellis to pay $25.00 in court costs.

Three Rivers also claims that a complaint was issued agáinst Ellis on one other occasion for allegedly violating the Montana Motor Carrier Act. But that evidence was not made a part of the record at the hearings before the PSC, and this Court will not consider it now.

Third, Three Rivers refers to an incident wherein Ellis had allegedly not paid certain workers’ compensation insurance coverage for an employee over a three-month period in 1993. It argues that the PSC abused its discretion in refusing to consider that incident and find Ellis unfit. On appeal, the PSC argues that workers’ compensation issues are not within the PSC’s jurisdiction. The evidence below regarding this allegation is minimal. The record does not reveal whether a claim was even filed against Ellis.

Evidence of illegal activity, even if willful, does not automatically disqualify an applicant. Rather, the PSC has routinely considered bad faith operations as only one element in assessing fitness. See, e.g., Application ofSchlegel & Sons Contractors, Inc. (December 23,1993), Docket No. T-93.41.PCN, Order No. 6247a. The PSC’s position is consistent with that taken by the ICC. See Armored Carrier Corporation v. United States (1966), 260 F.Supp. 612, 615 (E.D.N.Y), aff’d., 386 U.S. 778, 87 S.Ct. 1476, 18 L.Ed.2d 524 (1967). In this case, the PSC found that allegations of illegal activity were scant and did not rise to the level of persistent illegal activity sufficient to require the PSC to engage in analysis as to whether they impinged on Ellis’ fitness. Substantial evidence supports the PSC’s decision. Assessing allegations concerning violations of the Motor Carrier Act is peculiarly within the expertise of the PSC. We hold that the PSC did not err in failing to find that either alleged violations of that Act or alleged violations of the Workers’ Compensation Act rose to the level to require the PSC to conduct a detailed analysis of the violations. Moreover, we hold that the PSC was not clearly erroneous in failing to find that they rendered Ellis unfit. The District Court did not err in affirming the PSC.

ISSUE THREE

Did the District Court err when it affirmed the PSC’s finding that the public convenience and necessity required that it authorize Ellis’ service?

When determining public convenience and necessity, the PSC uses the analysis set forth by the Interstate Commerce Commission in Pan-American Bus Lines Operation (1936), 1 M.C.C. 190:

The question ... is whether the new operation or service will serve a useful public purpose, responsive to a public demand or need; whether this purpose can and will be served as well by existing lines or carriers; and whether it can be served by the applicant with a new operation or service proposed without endangering or impairing the operations of existing carriers contrary to the public interest.

The PSC may additionally consider competition. Section 69-12-323(2)0»), MCA.

Three Rivers argues that the PSC’s decision finding that there was a need for Ellis’ service was clearly erroneous. It asserts that it was only natural that some of its customers were dissatisfied, but that there was insufficient evidence that its service was inadequate.

To the contrary, however, evidence of Three Rivers’ inadequate service and the public need for another garbage hauler was overwhelming. The PSC exhaustively detailed the testimony of approximately 40 witnesses who testified about their dissatisfaction with Three Rivers. In short, Three Rivers’ service was spotty and unreliable. It frequently failed to haul away customers’ garbage, and when it did, it often left the dumpsters overturned with garbage strewn on the ground. Some customers had to routinely monitor Three Rivers to ensure that the garbage would actually be hauled away on the date and time it was scheduled for pickup. Even though customers complained, Three Rivers frequently charged them for services that were not rendered. Moreover, Three Rivers’ staff treated the public with disdain. Many customers testified that when they telephoned Three Rivers to complain, they were treated rudely and with a take-it-or-leave-it attitude. At least one customer testified he was called a liar when he complained that the garbage was not hauled away. Three Rivers discontinued service to some of the customers who complained. The PSC found that Three Rivers’ own witnesses corroborated the public testimony. Specifically, it found that Three Rivers keeps lists of “chronics,” tells customers they are wrong, and informs customers who complain that if they do not like it, they can haul the garbage themselves. It allows its staff to persist in treating customers in a derogatory manner.

In spite of the poor service, Three Rivers charged customers dramatic rate increases. For example, the superintendent of one school district testified that rates for the district increased from $216.00 to $459.89 per month without any notice. The mayor of another city testified that Three Rivers approached the city council and proposed a 400% rate increase. In 1993 when negotiations between Three Rivers and the city broke down, the city disassociated itself from Three Rivers. In fact, many of Three Rivers’ former residential and commercial customers have been forced to haul their own garbage due to Three Rivers’ inconsiderate treatment, unreliable service, and large rate increases. Based upon this overwhelming evidence, we hold that the PSC’s finding that there was substantial unmet shipper need was not clearly erroneous.

Three Rivers points to the PSC’s finding that Three Rivers “has the authority, facilities, equipment and financial wherewithal” to provide service to the Gallatin and Madison County customers, and argues that notwithstanding customer complaints Ellis’ application should therefore be denied. But whether the existing service is capable of providing adequate service means nothing if it is unwilling to provide adequate service. The PSC therefore properly exercised its discretion and considered the element of competition when assessing public need and convenience. It found that Three Rivers had created a niche for competition which Ellis could fill by providing alternative service. The PSC found, and we agree, that competition in this case will promote the public interest in improving services and perhaps rates, and filling consumer needs that Three Rivers has failed to meet. We hold that the PSC’s findings were not clearly erroneous, and the District Court correctly affirmed its decision.

ISSUE FOUR

Did the District Court err when it affirmed the PSC’s finding that Three Rivers would not be impaired by granting Ellis’ application?

Three Rivers disputes the PSC’s finding that Three Rivers would not be harmed by granting Ellis’ application. It points to the testimony of its executive officer and its principal partner. The executive officer testified that Three Rivers upgraded its services with a variety of modem equipment and a maintenance shop and that lost revenue will hurt its ability to pay for equipment costs. Its principal partner feared that some of its prime customers would utilize Ellis’ services, resulting in a significant financial loss to Three Rivers.

But the PSC found that Three Rivers’ operating statement and financial reports indicated that it was “flush with equipment, facilities, [and] staff’ as well as expensive computer equipment with “unnecessary bells and whistles.” Moreover, Three Rivers has extensive resources. Its gross revenues had increased from $1,200,000 in 1986 to $2,368,000 in 1992. Other parts of Three Rivers’ financial reports included costs such as embezzling costs and landfill development costs, which the PSC stated were not the responsibility of the public. Based upon these findings, the PSC concluded that with all its resources, Three Rivers would not be harmed by the grant of Ellis’ application to an extent contrary to public interest.

It is not the function of this Court to weigh the evidence. Our review indicates that the PSC’s conclusions are based upon adequate findings of fact, supported by substantial evidence in the record. We conclude that the PSC gave reasonable consideration to Three Rivers’ service. We hold that the PSC’s findings are not clearly erroneous and the District Court correctly affirmed its decision.

ISSUE FIVE

Did the PSC err by failing to follow its own precedent, and if so, did it err by failing to provide a reasoned explanation for its departure from that precedent?

Three Rivers argues that the PSC’s decision in this case is diametrically opposed to its decision in Ellis I. Citing Atchison Topeka and Santa Fe Railroad Co. v. Board of Trade (1973), 412 U.S. 800,93 S.Ct. 2367, 37 L.Ed.2d 350, it argues that the PSC therefore had a duty to explain its departure from the prior decision. Having failed to do so, it asserts that the PSC’s decision must be reversed.

It is a well-established principle of agency law that an agency has a duty to either follow its own precedent or provide a reasoned analysis explaining its departure. Atchison Topeka and Santa Fe Railroad Co., 412 U.S. at 808, 93 S.Ct. at 2375. But in this case, the PSC did not depart from its prior policies and standards. Indeed, its decision in this case is entirely consistent with its decision in Ellis I.

The factual landscape when Ellis I was decided in 1984 differed significantly from that a decade later when it rendered the decision in this case. Ten years ago, there were few concerns about the adequacy of Three Rivers’ service or the reasonableness of its rates. There were only a few isolated instances of missed garbage pickups. The majority of the witnesses at the hearing testified that the service was satisfactory. While a few people complained about Three Rivers’ rates, the complaints did not lead the PSC to conclude that an additional garbage hauler was necessary. In short, there was insufficient evidence that Three Rivers had provided inadequate service or that public convenience and necessity required additional service. Moreover, the route involved in Ellis I involved primarily Gallatin County, while the route in this case involves both Gallatin and Madison Counties, with some territorial exclusions.

With regard to the element of competition, the PSC correctly noted in 1984 that § 69-12-323(2)(b), MCA, gave it discretion to consider competition, and it stated that in some cases the advent of competition would be beneficial to the public interest. Indeed, it expressly stated that the “Commission can conceive of instances where competition would exert a positive influence in the maintenance of good quality service and reasonable rates.” The PSC also correctly noted, however, that competition in the abstract is insufficient standing alone to justify granting an application. Rather, there must be sufficient evidence in the record based upon the specific facts at hand to establish public convenience and necessity.

Based upon the facts in 1984, the PSC found that competition at that time would be destructive. Recent history had demonstrated that the area needed stability, because competition had produced a negative impact upon both the industry and the consumer. Three Rivers had been the first company in the decade prior to 1984 that was a healthy carrier, adequately serving the area. In that same decision, the PSC warned Three Rivers that “[t]his is not to say that the public should be prepared to tolerate unmet demand or inadequate service or unreasonable rates should they occur in the future. [Three Rivers] remains on notice that the Commission retains the power to reexamine the situation and grant a new authority should the circumstances merit it.”

Ten years later, the PSC determined that the circumstances merited it. None of the PSC’s standards or application of the law changed, only the facts did. We therefore hold that the PSC did not depart from established precedent. The District Court correctly affirmed the PSC’s order.

We affirm the order of the District Court.

JUSTICES GRAY, NELSON, REGNIER and TRIWEILER concur.


author: JUSTICE LEAPHART

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RAY HUETHER, Defendant and Appellant.
    No. 96-554.
    Submitted on Briefs May 15, 1997.
    Decided August 26, 1997.
    54 St.Rep. 872. 943 P.2d 1291.
    284 Mont. 259.

      For Appellant: Roberta A. Drew, Deputy Public Defender, Billings.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Helena; Cregg W. Coughlin, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney and Melanie B. Logan, Deputy County Attorney, Billings.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Ray Huether (Huether) appeals from the Thirteenth Judicial District Court’s order denying his motion to exclude evidence of other crimes, wrongs, or acts. We affirm.

We address the following dispositive issue on appeal:
Did the District Court abuse its discretion in admitting evidence
that Huether’s infant son had died while in his care seven months
prior to the death of his infant daughter?

BACKGROUND

Since this case involves a plea of guilty, the following facts are taken primarily from the affidavit in support of the State’s motion to file the information. At approximately 4:52 p.m. on May 16, 1995, Huether called 911 to report that “an infant” in his care had stopped breathing. Emergency personnel arrived at the Huether residence and found Huether’s daughter Becca Huether (Becca), aged two and one-half months, without a pulse and unable to breathe on her own. Huether explained to the emergency personnel that he had put Becca down at approximately 4:30 p.m. and, when he checked on her a short time later, found her not breathing and without a pulse. Attempts were made to resuscitate Becca and she was transported to the emergency room at St. Vincent Hospital. Despite continued resuscitation efforts and after an examination by an emergency room doctor, Becca was pronounced dead at approximately 5:35 p.m. on May 16,1995.

At the hospital, Huether told different versions of the afternoon’s events leading up to his discovery of Becca’s lifeless body. Huether told Yellowstone County Deputy Coroner Keith Montgomery (Coroner Montgomery) that he had last seen Becca alive at 3:30 that afternoon and heard her in her bassinet at 4:00 p.m. Huether said, however, that he had fallen asleep after taking some cold medicine and that when he woke up he found that Becca was not breathing.

Yellowstone County Sheriff’s Department Detective Dick Hirschi (Detective Hirschi) was dispatched to the hospital, spoke with Coroner Montgomery and met with the Huether family including Huether’s wife, Christina. Huether’s version to Detective Hirschi differed from the versions he gave Coroner Montgomery and the emergency personnel. Huether told Detective Hirschi that when Christina left for work at approximately 3:00 p.m. that day he was left in charge of Becca and their other children, a five-year-old daughter and six-year-old son. Huether said that approximately one-half hour after Christina left, he received a telephone call from Jeanette Miller (Miller). Huether told Detective Hirschi that he was in his bedroom talking to Miller and had placed Becca in her bassinet near his bed. He stated he laid on his bed and continued to speak to Miller until approximately 4:50 p.m. when he checked on Becca and found her blue in color and not breathing.

Detective Hirschi later contacted Miller and she stated that ten to fifteen minutes into her telephone conversation with Huether she could hear a baby crying loudly in the background. She said she teasingly stated to Huether that he must be pinching the baby and that the baby did not sound happy; Huether replied that the baby was not happy a lot of the time. Approximately thirty minutes later, Miller asked Huether what he had done after she noticed the sounds from the baby had become softer. Huether told Miller he had moved the baby from his room to the baby’s playpen in the other room where his other children were watching television.

Seven and one-half months prior to Becca’s death, Coroner Montgomery investigated the death of Huether’s seven-month-old son, Rick Huether (Rick). Rick had died while in Huether’s sole care. Because no medical cause could be found for Rick’s death, it was listed as Sudden Infant Death Syndrome (SIDS). Due to Rick’s SIDS-related death Becca’s pediatrician had prescribed, as a precautionary measure, the use of an apnea monitor to monitor Becca’s pulse and breathing. Pursuant to the doctor’s instruction, Becca was to wear the monitor whenever she might fall asleep.

Huether’s statements to Coroner Montgomery and others regarding the use of Becca’s apnea monitor included his admission to Coroner Montgomery that, even though an apnea monitor had been prescribed to monitor Becca’s pulse and breathing, he had not placed it on her before putting her in her bassinet the day of her death. Furthermore, a member of the SIDS support group to which Huether and Christina belonged informed sheriff’s detectives that one hour after Becca’s death Huether had left a message on her answering machine. Huether’s message stated: “Hi, ... this is Ray Huether. I believe you know me and my wife Christina; we are up at St. Vincent’s, and Becca has passed away again. Thank you.” Additionally, when Christina received Huether’s phone call at work informing her of Becca’s situation, he stated “you’re not going to believe this,” and informed her that Becca had not been on the monitor and had turned blue and that they were headed for the hospital.

In June of 1995, Huether was charged with negligent homicide for the death of his daughter Becca, in violation of § 45-5-104, MCA. Upon review of the evidence surrounding Becca’s death indicating that Becca may have died as a result of asphyxia or suffocation, the State filed notice of intent to introduce evidence that, seven and one-half months prior to Becca’s death, Rick had died of SIDS while in Huether’s care. The State contended that evidence of the circumstances surrounding Rick’s death was relevant in establishing knowledge and lack of mistake or accident concerning Becca’s death. Huether moved to exclude the evidence concerning Rick’s death. In a pretrial ruling, the District Court held that the evidence of Rick’s death was relevant in showing Huether’s knowledge and absence of mistake or accident. Huether subsequently filed, and the District Court denied, two motions to reconsider.

Following the District Court’s order denying Huether’s request to exclude evidence of other crimes, Huether entered an Alford plea to the charge of negligent homicide and reserved his right to appeal. Huether appeals the District Court’s order denying his request to exclude evidence of other crimes, wrongs, or acts.

DISCUSSION

Did the District Court abuse its discretion in admitting evidence that Huether’s infant son had died while in his care seven months prior to the death of his infant daughter?

The standard of review for an evidentiary ruling is whether the district court abused its discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. The determination of whether evidence is relevant and admissible is left to the sound discretion of the trial judge and will not be overturned absent a showing of abuse of discretion. Gollehon, 864 P.2d at 1263. See also State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063, 1067.

Huether was charged with, and pled guilty to, the charge of negligent homicide, a violation of § 45-5-104(1), MCA. Section 45-5-104(1), MCA, provides:

(1) A person commits the offense of negligent homicide if he negligently causes the death of another human being.

Pursuant to § 45-2-101(42), MCA, the term “negligently” is defined as:

“Negligently” — a person acts negligently with respect to a result or to a circumstance described by a statute defining an offense when the person consciously disregards a risk that the result will occur or that the circumstance exists or when the person disregards a risk of which the person should be aware that the result will occur or that the circumstance exists. The risk must be of a nature and degree that to disregard it involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. “Gross deviation” means a deviation that is considerably greater than lack of ordinary care. Relevant terms, such as “negligent” and “with negligence”, have the same meaning.

In order to establish that Huether’s involvement in the death of his daughter Becca constituted a gross deviation from ordinary care, the State proposed to introduce evidence that only seven months earlier, Huether’s son Rick had died while in Huether’s care as a result of SIDS. Huether contends that the District Court abused its discretion in determining that this evidence would be admissible at trial. Specifically, Huether maintains that evidence concerning Rick’s death would be excessively prejudicial and violate the prohibition against evidence of “other crimes or acts” set forth in Rule 404(b), M.R.Evid.

Specifically, Rule 404(b), M.R.Evid., provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Although the State and the District Court analyzed this issue in terms of Rule 404(b), M.R.Evid., we determine that this was a mischaracterization of the evidence being considered. In its “Notice of State’s Intention to Use Evidence of Other Crimes, Wrongs or Acts,” the State gave notice of intent to use the following evidence: “That on or about September 23, 1994, Rick Huether, seven-month-old infant son of the defendant RAY HUETHER, died while in the sole care of the defendant.” In its brief arguing for the introduction of this evidence in the District Court, the State contended:

The circumstances of the death of Rick Huether were known to the defendant. Therefore he was aware of the circumstances of that death at the time of his actions at the time of the instant offense. His knowledge about the circumstances of the first death should be considered by the trier of fact in determining whether the defendant’s actions in regard to Becca Huether were negligent. That is, a defendant having the knowledge the defendant had as a result of the death of Rick Huether should have been expected to act differently in his care of and action toward Rebecca Huether. Consequently, the trier of fact should know of the prior circumstance in order to judge the prudence of the defendant’s actions on the day of Becca Huether’s death.

Rule 404(b), M.R.Evid., pertains to “other crimes, wrongs or acts.” If we look to the substance rather than the form of the State’s “Just Notice” and brief, it is evident that the State was not alleging that Huether had engaged in any specific conduct concerning Rick nor was it proposing to prove that Huether had committed another crime, wrong or act with regard to the death of his son Rick. Rather, the State sought to introduce evidence of the circumstances surrounding Rick’s death in order to show that, given Huether’s knowledge of how Rick died, Huether should have been aware of the risk inherent in not utilizing the apnea monitor on Becca and that his disregard of that risk constituted a gross deviation from ordinary care; that is, he was guilty of negligent homicide.

Although the court was wrong in holding the evidence admissible under Rule 404(b), it was, nonetheless, admissible. We affirm district court decisions which are correct regardless of the court’s reasoning in reaching the decision. Clark v. Eagle Systems, Inc. (1996), 279 Mont. 279, 286, 927 P.2d 995, 999. The evidence of Rick’s death must be analyzed, not in terms of Rule 404(b), M.R.Evid., but in terms of whether it was relevant circumstantial evidence.

In general, relevant evidence is admissible. Rule 402, M.R.Evid. Rule 401, M.R.Evid., defines relevant evidence as, “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” See State v. Rendon (1995), 273 Mont. 303, 307, 903 P.2d 183, 185-86. In the instant case, evidence concerning Rick’s death was to be introduced to show that, based on his prior experience with his son Rick, Huether was aware that an infant, if not properly attached to an apnea monitor, as prescribed by the infant’s doctor, could die from asphyxiation. The evidence at issue was proposed, not as character evidence, but to show that Huether was aware of the consequences of failing to attach an apnea monitor as prescribed by the child’s physician. Evidence of the circumstances surrounding Rick’s death had the effect of demonstrating that Huether, in caring for Becca, consciously disregarded a risk of which he should have been aware. Evidence of Rick’s death was thus relevant to the question of whether Huether “negligently” caused the death of Becca in violation of § 45-5-104(1), MCA.

Huether also contends that the relevancy of the evidence is outweighed by its prejudicial effect. In State v. Thompson (1993), 263 Mont. 17, 865 P.2d 1125, we discussed the balancing of probative value and unfair prejudice under Rule 403, M.R.Evid. We noted that the danger from unfairly prejudicial evidence is that the evidence will prompt the jury to decide the case on an improper basis:

Unfair prejudice can arise from [evidence] that arouse [s] the jury’s hostility or sympathy for one side without regard to its probative value, evidence that confuses or misleads the trier of fact, or evidence that might unduly district the jury from the main issues.

Thompson, 865 P.2d at 1132 (citing 1 J. STRONG, MCCORMICK ON EVIDENCE, § 185 (4th ed. 1992)).

In the present matter, the District Court, relying on State v. Paulson (1991), 250 Mont. 32, 43, 817 P.2d 1137, 1142, held that “ ‘mere prejudicial effect is not a sufficient reason to refuse admission. Probative evidence will frequently be prejudicial to a party, but that does not mean that it will cause the fact finder to ground a decision on an emotional basis.’ ”

We agree with the court’s analysis. The circumstances surrounding Rick’s death are highly probative of Huether’s awareness of the risks involved in not complying with Becca’s doctor’s prescription of an apnea monitor. This evidence is pivotal to proving the State’s allegation that Huether’s conduct was more than a simple lack of ordinary care; that he was guilty of a gross deviation from the standard of conduct that a reasonable person would observe under like circumstances. Section 45-2-101(42), MCA (negligently defined). As with all evidence proffered by the prosecution, the evidence is prejudicial. However, it is not unfairly so. Its probative value clearly outweighs the prejudicial effect.

Since we hold that the evidence of Rick’s death was not Rule 404(b) “other crimes” or character evidence but was relevant circumstantial evidence, the State was not required to comply with the notice procedures set forth in State v. Just (1979), 184 Mont. 262, 602 P.2d 957, and thus the adequacy of the “Just Notice” is not an issue that needs to be resolved. Accordingly, we affirm the District Court’s denial of Huether’s motion to exclude the evidence of the circumstances surrounding Rick’s death.

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