text:
    V.K. PUTNAM, INC., Petitioner and Appellant, v. JUDITH McFARLANE and State of Montana, Department of Labor & Industry, Employment Relations Division, Respondents.
    No. 89-208.
    Submitted on Briefs Aug. 31, 1989.
    Decided Sept. 21, 1989.
    779 P.2d 905.
    Lyman H. Bennett, III, Morrow, Sedivy & Bennett, Bozeman, for petitioner and appellant.
    Melanie A. Symons, Dept, of Labor and Industry, Helena, for respondents.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from an action seeking an award of unpaid overtime wages and statutory penalty pursuant to § 39-3-205, MCA, and § 39-3-206, MCA. Petitioner, V.K. Putman, Inc. (Putman), appeals from the judgment of the District Court of the Eighteenth Judicial District, Gallatin County, confirming the Labor Commission’s determination in favor of Respondent, Judith McFarlane (McFarlane). We affirm.

The sole issue on appeal is:

Whether Judith McFarlane was an employee who was subject to the jurisdictional authority of the Secretary of Transportation pursuant to the provisions of 49 U.S.C. § 304 [3102(b)], which exempts certain employees from state and federal overtime wage requirements.

The facts of this case are not in dispute. Judith McFarlane was hired by Putman, a trucking company, on June 19, 1985, as a dispatcher. During her period of employment, she often worked extra hours on Saturdays and through her lunch hours. She was never paid overtime wages for these extra hours.

In early August 1987, McFarlane terminated her employment with Putman. Subsequently, she filed a claim with the Department of Labor and Industry, seeking overtime compensation for the hours worked on Saturdays and during her lunch time. A Hearing Examiner, appointed by the Department of labor, conducted an administrative hearing on the claim. The examiner found in her favor and awarded McFarlane $742.80 for the overtime hours she worked. The Hearing Examiner also found that Putman was subject to a statutory penalty which doubled McFarlane’s recovery to $1,485.60.

Putman appealed this decision to the District Court for the Eighteenth Judicial District, claiming that the Hearing Examiner abused his authority in making the awards. After submission of the briefs the District Court issued an order affirming the award, and later the judgment was entered. This appeal followed.

The standard to be used by the court when reviewing a final agency decision in a contested case is set forth in § 2-4-704, MCA. This statute dictates that a court may not substitute its judgment for that of the agency on questions of fact. Section 2-4-704(2), MCA. Moreover, reversal or modification of an agency interpretation of law is only justified if substantial rights of the appellant have been prejudiced because the administrative conclusion or decision is “arbitrary or capricious or characterized by abuse of discretion . . Section 2-4-704(2)(a)(vi), MCA. Because the facts were stipulated the only conclusion on review is the Department’s interpretation of the law. This review only requires that we determine whether its findings and ultimate decision were an abuse of discretion. City of Billings v. Billings Firefighters Local No. 521 (1982), 200 Mont. 421, 432, 651 P.2d 627, 632.

Resolution of the issue in this case requires us to examine Montana statutory law and its relationship to federal law governing the Secretary of Transportation’s authority over certain employees involved in interstate commerce. Under § 39-3-405(1), MCA, employers are required to pay overtime when employees work longer than forty hours a week. Certain employees are excluded from this requirement. Putman claims that under the exclusion provided by § 39-3-406(2)(a), MCA, it was not required to pay McFarlane overtime compensation, because she was governed by the Federal Motor Carrier Safety Act. Section 39-3-406(2)(a), MCA, states that the overtime provisions of § 39-3-405, MCA, do not apply to employees “with respect to whom the United States Secretary of Transportation has power to establish qualifications and maximum hours of service pursuant to the provisions of 49 U.S.C. § 304.” (Motor Carrier Safety Act)

49 U.S.C. § 304 has been repealed and has been replaced by 49 U.S.C. § 3102(b). This repeal and subsequent re-enactment, however, did not change either the purpose or the substance of the Motor Carrier Safety Act. Detailed Explanation Prepared by the Office of the Law Revision Council, 128 Cong. Record 9543 (1982). Therefore, it is proper for this Court to look to case law interpreting 49 U.S.C. § 304, in determining § 3102(b)’s applicability to state overtime wage requirements.

Section 3102(b) states:

“The Secretary of Transportation may prescribe requirements for (1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and (2) qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operations.”

Putman maintains that all of its employees are subject to the authority of the Secretary of Transportation’s maximum hours requirement and that therefore they do not need to pay any of their employees overtime. Putman bases this argument on its interpretation of the definition of “motor carrier.” Federal regulations found at 49 C.F.R. § 391.3(a) define the term “motor carrier” to include its “employees . . ., who are responsible for the hiring, supervision, training, assignment or dispatching of drivers.” Section 3102(b), gives the Secretary of Transportation the power to “prescribe the qualifications of maximum hours of service of ... a motor carrier.”

Because a “dispatcher” is included within the definition of “motor carrier,” Putman maintains that the Secretary has the power to set maximum hour requirements for employees responsible for the dispatching of drivers. This in turn, leads to the conclusion that a dispatcher is exempt from overtime wage requirements pursuant to § 39-3-406(2)(a), MCA.

Putman’s strained interpretation of the statute, however, ignores United States Supreme Court decisions which hold that only those employees whose work is related to motor carrier safety are exempt from overtime compensation. In United States v. American Trucking Associations (1940), 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345, the Supreme Court made an extensive investigation into the history of the legislation leading up to the passage of the Motor Carrier Act, as codified at 49 U.S.C. § 304. Its investigation led it to the conclusion that the Act only affected those employees whose activities affected the safety of operation of a motor carrier. The Secretary of Transportation was held to not have jurisdiction to regulate the hours of service of those employees whose duties did not affect safety. Therefore, federal maximum hour requirements do not extend to all employees of a motor carrier as asserted by Putman.

Putman further argues, however, that even if the Secretary’s jurisdiction does not extend to all employees of a motor carrier, this Court should determine that dispatchers substantially affect the safety of motor carrier operations, and that therefore they are exempted from overtime compensation under § 39-3-406(2)(a), MCA. We find little validity to this argument.

In making this argument, Putman points out that a dispatcher is responsible for day to day contact with the drivers. It is contended that if a dispatcher, through error of judgment, permits a vehicle to depart when the roads are icy or calls a driver to duty when he is sick or fatigued, an accident may result. While this may be true, it is clear that such an error would not be the proximate cause of the accident. In an opinion made in response to the question now before us, the Interstate Commerce Commission found that a dispatcher does not engage in any activities that directly affect the safety of operation of motor vehicles. In the Matter of Maximum Hours of Service of Motor Carrier Employees Ex parte No. MC2, 28 M.C.C. 125. In this case this Court will not disagree with a federal agency’s own determination of the extent of its jurisdiction. To do otherwise would leave employees like McFarlane in limbo relative to wage and hour regulation in violation of the policy of our statute and Constitution. See Art. XII, § 2, Mont. Cont. Therefore, we find that dispatchers are not subject to the regulations of the Secretary of Transportation concerning maximum hours. Accordingly, they are not exempted from overtime requirements contained in § 39-3-405, MCA.

We find that the Department of Labor’s findings that Judith Mc-Farlane, in her duties as a dispatcher, was entitled to overtime wages was not an abuse of discretion. Therefore, the District Court’s judgment is affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, SHEEHY and WEBER concurred.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Petitioner, v. LESTER C. TOLLEFSON, Defendant and Respondent.
    No. 89-417.
    Decided Sept. 21, 1989.
    Rehearing Denied Oct. 31, 1989.
    780 P.2d 621.
   ORDER AND OPINION

This matter is before the Court on the application of the State of Montana for a writ of supervisory control. The State seeks review of an order of the Justice Court, Missoula County. That court, in ruling upon defendant’s motion in limine, found unconstitutional § 61-8-401 (4) (c), MCA, on the presumptive effect of blood alcohol content in a DUI case. Lester C. Tollefson has filed a response to the State’s application for supervisory control.

Supervisory control is sometimes justified where there is no remedy by appeal or other remedial procedure to provide relief and where extraordinary circumstances are present. Rule 17, M.R.App.P.; State v. District Court (Mont. 1981), [_ Mont. _,] 632 P.2d 318, 322, 38 St.Rep. 1204, 1208. The parties to this case agree that this Court should take supervisory control.

A disturbing aspect of this case is that there is no record because the case comes to us from Justice Court. Adequate review of a question of constitutional magnitude is difficult at best under these circumstances. We therefore question whether a justice court can be a proper forum for consideration of the constitutionality of a statute. However, because the State may not appeal the ruling of the Justice Court and because of the statewide significance of the issue involved, the Court concludes that supervisory control is justified.

Section 62-8-401 (4) (c), MCA, provides:

“(4) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person driving or in actual physical control of a vehicle while under the influence of alcohol, the concentration of alcohol in the person’s blood at the time alleged, as shown by chemical analysis of the person’s blood, urine, breath, or other bodily substance, shall give rise to the following presumptions:
“(c) If there was at that time an alcohol concentration of 0.10 or more, it shall be presumed that the person was under the influence of alcohol. Such presumption is rebuttable.”

The Justice Court found that the statutory language “it shall be presumed that the person was under the influence of alcohol” relieved the State from being required to prove every element of a criminal case beyond a reasonable doubt. Relying on Sandstrom v. State of Montana (1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39, and other cases, the court then declared § 61-8-401(4)(c), MCA, unconstitutional.

When interpretations of a statute may vary, courts will choose a constitutional interpretation over an unconstitutional one. Department of State Lands v. Pettibone (1985), 216 Mont. 361, 374, 702 P.2d 948, 956. In construing statutes nearly identical to the challenged statute, several state courts have found those statutes to be constitutional. Barnes v. People (Colo. 1987), 735 P.2d 869; State v. Dacey (1980), 138 Vt. 491, 418 A.2d 856; State v. Coates (1977), 17 Wash.App. 415, 563 P.2d 208; Commonwealth v. DiFrancesco (1974), 458 Pa. 188, 329 A.2d 204. The above state courts have interpreted the language used in their statutes to create a permissive inference, not a mandatory presumption.

For purpose of this case, we interpret § 61-8-401(4)(c), MCA, to create a permissive inference that the person was under the influence of alcohol. We reverse the Justice Court’s declaration of unconstitutionality and we direct the court to deny defendant’s motion in limine to exclude evidence of blood alcohol content. Because our ruling is for purposes of this case only, this issue may be reraised in the event defendant is convicted and obtains a trial de novo in district court.

DATED this 21st day of September, 1989.

s/J.A. Turnage, Chief Justice

s/John Conway Harrison, Justice

s/John C. Sheehy, Justice

s/Fred J. Weber, Justice

s/William E. Hunt, Justice

s/R.C. McDonough, Justice

s/Diane G. Barz, Justice


author: JUSTICE HUNT

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WILLIAM MARTIN HIBBS, Defendant and Appellant.
    No. 89-93.
    Submitted on Briefs Aug. 10, 1989.
    Decided Sept. 26, 1989.
    780 P.2d 182.

      Deirdre Caughlan, Dunlap & Caughlan, Butte, for defendant and appellant.
    Marc Racicot, Atty. Gen., Kathy Seeley, Asst. Atty. Gen., Helena, Robert M. McCarthy, County Atty., and Brad Newman, Deputy County Atty., Butte, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

A jury empaneled in the District Court of the Second Judicial District, Silver Bow County, found William Martin Hibbs, defendant, guilty under §§ 45-5-502(1) and (3), MCA, of three counts of sexual assault. The District Court sentenced Hibbs to twenty years in the Montana State Prison on each count to be served consecutively. He was also found to be a persistent felony offender under §§ 46-18-501(1) and (2), MCA, and was sentenced to fifteen years in the Montana State Prison to be served consecutively with the term imposed on count three. Hibbs appeals. We affirm.

The following issues are raised on appeal:

1. Whether the District Court abused its discretion when it offered and admitted an exhibit on its own motion.

2. Whether the District Court properly allowed the prosecution to use leading questions with two child witnesses, ages six and seven, on direct examination.

3. Whether the District Court erred in allowing three prosecution witnesses to testify to out-of-court statements made to them by four child witnesses.

On July 13, 1988, a six-year-old girl, referred to as Misty, told her mother that she, her sister, referred to as April, age ten, and two neighbor girls, referred to as Carol, age 6, and Carol’s sister, referred to as Crystal, age seven, had been sexually assaulted the previous day at the Hibbs residence. April’s mother reported the incident to the police.

On July 14, 1988, a social worker, employed by the Department of Family Services, Butte, Montana interviewed the four girls in which the girls claimed that Hibbs forced them to touch his penis with their hands and mouths and that he touched their vaginas with his hands. The four girls also claimed that Hibbs prevented them from leaving his residence by wedging knives into his door which prevented it from being opened. The four girls stated that Hibbs gave them some change after sexual contact had ceased. Two of the girls claimed that Hibbs warned them not to tell their parents about the contact or the girls would go to jail. Another girl claimed that Hibbs threatened to kill her if she told her parents about the contact.

Also, on July 14, 1988, a Butte police detective took a voluntary, recorded statement from Hibbs after Hibbs was advised of his Miranda rights and after he signed and initialed a waiver form acknowledging his rights. Hibbs stated that he was 58 years old. He further stated that while he did have sexual contact with several juvenile girls from the neighborhood, it was the girls who initiated the contact by unzipping his pants and then fondling and sucking his penis. Hibbs claimed that this occurred while he was asleep and incapacitated by alcohol. At trial, Hibbs testified that as soon as he became aware of what was happening, he ran into the bathroom and Crystal followed him and demanded money.

On August 4, 1988, Hibbs was charged by information with four counts of sexual assault committed against four juveniles, in violation of §§ 45-5-502(1) and (3), MCA. On January 3, 1989, a jury trial commenced. Witnesses for the prosecution included the four girls, April, Misty, Crystal and Carol, their mothers, and Terri Waldorf, a social worker who interviewed the children following the reported assaults.

On January 4, 1989, the jury found Hibbs guilty on three of the four counts of sexual assault. On February 3, 1989, Hibbs was sentenced to twenty years in the Montana State Prison on each count to be served consecutively and fifteen years in the Montana State Prison as a persistent felony offender to be served consecutively with count three. Hibbs was designated a dangerous offender for purposes of parole eligibility under § 46-18-404, MCA, and was given credit for time served.

The first issue raised on appeal is whether the District Court abused its discretion when it offered and admitted an exhibit on its own motion. Specifically, the court ordered the Miranda waiver form admitted into evidence after the prosecution had fully cross-examined Hibbs on the document. The prosecutor stated that he did not intend to enter the form into evidence.

Hibbs argues that by ordering the admission of the form into evidence, the court, in effect, was commenting on the evidence in violation of Rule 614(b), M.R.Evid., which provides:

“The court may interrogate witnesses, whether called by itself or a party; provided, however, that in trials before a jury, the court’s questioning must be cautiously guarded so as not to constitute express or implied comment.”

It is true that under the rule, the court may examine witnesses to fully elicit or clarify facts. See State v. Martin (1987), 226 Mont. 463, 736 P.2d 477, 44 St.Rep. 804; State v. Bier (1979), 181 Mont. 27, 591 P.2d 1115. The authority for the court to call or examine witnesses is discretionary and will not be disturbed absent a showing of abuse of discretion or manifest prejudice. State v. Hart (1981), [191 Mont. 375,] 625 P.2d 21.

Nonetheless, the issue raised is not the examination of witnesses but the actual admission of an exhibit by the court’s own order. There is no provision under Rule 614, M.R.Evid., nor anywhere in Montana law, that directly permits the court to offer its own exhibits into evidence. Here, the exhibit had been read into evidence in full to the jury. It could hardly constitute error.

If it were error, it was harmless. Section 46-20-701, MCA, provides in part:

“No cause shall be reversed by reason of any error committed by the trial court against the appellant unless the record shows that the error was prejudicial.”

Under State v. Gray (1983), 207 Mont. 261, 268, 673 P.2d 1262, 1266 we stated:

“The test of prejudicial error requiring reversal is whether there is a reasonable possibility the inadmissible evidence might have contributed to the conviction.” (Citations omitted.)

The next issue raised on appeal is whether the District Court properly allowed the prosecution to use leading questions with two child witnesses, ages six and seven, on direct examination.

Rule 611(c), M.R.Evid., provides in pertinent part:

“Leading questions should not be used on the direct examination of a witness except as necessary to develop his testimony.”

Hibbs objected to the leading nature of the prosecution’s direct examination of two child victims and argues that the prosecution failed to establish that leading questions were necessary to develop the witnesses’ testimony. However, in Bailey v. Bailey (1979), 184 Mont. 418, 603 P.2d 259, 2661, this Court set forth an exception to the general rule against leading questions on direct examination where a child witness is involved. The rationale behind the exception is that questioning a child is a difficult task. See State v. Eiler (Mont. 1988), [234 Mont. 38,] 762 P.2d 210, 45 St.Rep. 1710; State v. Howie (Mont. 1987), [228 Mont. 497,] 744 P.2d 156, 44 St.Rep. 1711. As this Court stated in Eiler, 762 P.2d at 215 whether or not leading questions will be allowed is a matter for the trial court’s discretion. See also Bailey, 603 P.2d at 261. The District Court need not make express findings that leading questions are necessary. We hold that the questioning was proper.

The last issue raised on appeal is whether the District Court erred in allowing three prosecution witnesses to testify as to out-of-court statements made to them by four child witnesses.

In this case, after the victims testified, the prosecution called three witnesses, Crystal’s mother, April and Misty’s mother and a social worker, to testify. The three witnesses testified as to what the children had told them concerning their activities with Hibbs. The testimony of the three witnesses was consistent with the testimony of the four girls. Hibbs objected to the testimony as hearsay.

Rule 801(d)(1)(B), M.R.Evid., provides in part:

“A statement is not hearsay if:
“. . . consistent with [the witnesses] testimony and is offered to rebut an express or implied charge against him of subsequent fabrication, improper influence or motive.”

Hibbs asserts that because the credibility of the child witnesses was never attacked at trial, the rule is inapplicable. However, as the prosecution notes, defense council placed the credibility of the child victim’s in issue during opening by stating:

The issue ... is one of truthfulness. It is one of credibility . . . [the prosecution] has told you that he will call certain witnesses . . . [that] may have some ulterior motives of testifying against Bill Hibbs ... Be sure . . . [the children] know the difference between truth and fantasy; between the truth and a lie.” (Emphasis ours.) Further, during cross-examination, defense council questioned the children repeatedly over whether they knew what a lie was and whether they had ever lied. In asking such questions, defense council placed the credibility of the child witnesses in issue.

In State v. Mackie (1981), [191 Mont. 138,] 622 P.2d 673, 676, where similar statements were allowed into evidence, we held: “These circumstances clearly qualify the counselor’s testimony as nonhearsay under Rule 801(d)(1)(B) . . . The quoted declarant (rape victim) testified at trial, she was subject to cross-examination concerning her statement, the counselor’s statement is consistent with the victim’s testimony, and it rebuts an implied charge of fabrication.”

See also State v. Anderson (1984), 211 Mont. 272, 289-290, 686 P.2d 193, 202-203. Here, it was proper for the prosecution to rebut the attack on the credibility of the children under Rule 801(d)(1)(B), M.R.Evid., by calling witnesses to testify as to prior consistent statements of the children.

Affirmed.

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


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LILLIAN UNGARETTI, Defendant and Appellant.
    No. 88-333.
    Submitted on Briefs Aug. 31, 1989.
    Decided Sept. 27, 1989.
    779 P.2d 923.

      Gregory A. Jackson, Jackson & Rice, Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., Elizabeth S. Baker, Asst. Atty. Gen., Helena, Robert Deschamps, III, County Atty., and Craig Friedenauer, Deputy Co. Atty., Missoula, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

This is an appeal from a felony conviction in the District Court of the Fourth Judicial District, Missoula County, Montana. Appellant Lillian Ungaretti appeals her conviction on one count of possession with intent to sell a dangerous drug. We affirm.

Appellant raises the following issues for review:

1. Whether the District Court erred in denying appellant’s motion for a directed verdict on the grounds that there was insufficient corroboration of the accomplice testimony?

2. Whether the District Court erred in admitting prejudicial evidence of other crimes?

3. Whether the District Court erred by inadequately providing cautionary instructions to the jury on the introduction of “other crimes” evidence?

Appellant Lillian (Topsy) Ungaretti was charged in Missoula County, along with her daughter Mia Grenfell and son Darrell Grenfell, with felony possession with intent to sell a dangerous drug. Appellant and Mia were arrested in Las Vegas, Nevada, in December of 1986 for the attempted sale of nearly three pounds of marijuana to undercover police officers. After their arrests, a Las Vegas police officer notified Missoula County law enforcement officials that the appellant had informed them she had a marijuana farm in the basement of a Missoula residence. She gave the officers a street address and a specific description of this residence which was owned by Forest (Pappy) Tupper.

Based upon this information, Missoula officers checked the address and compared the description given, then obtained and executed a search warrant at the Tupper residence. Tupper, a seventy-two-year-old retired University employee, expected the officers when they arrived and led them to the basement where the marijuana was growing.

The officers discovered in the Tupper residence a large and sophisticated marijuana growing operation. The basement was divided into three rooms, each containing marijuana plants in certain stages of development. In all, 108 marijuana plants and various plastic and paper sacks containing marijuana leaves and stems were seized. The operation was equipped with special grow lights, heaters, carbon dioxide tanks, and a marijuana growers handbook. Numerous fertilizers and soils were also in the basement. Found on the wall of the basement were hand written instructions for the daily and weekly care and harvesting of the plants. Additionally, the wiring to the electricity meter had been altered in order to hide the large amount of electricity being consumed by the grow operation.

At trial, Tupper testified that he originally found two sickly marijuana plants on his property near Lolo, Montana, and that he attempted to revive them. One plant survived and seeds from that plant were used to grow other plants. Appellant’s son Darrell Grenfell, was acquainted with Tupper from the University and spent much time at his house. Tupper claimed it was Darrell who confirmed that the original plants were in fact marijuana and from whom he received assistance in growing the plants. Tupper further testified that appellant became involved in the operation and expanded it in size with seeds she claimed were from Hawaii. Tupper stated that appellant, Darrell and Mia would spend much time together working in the basement. He claimed that while he was involved in growing the marijuana, his involvement was limited to operating the lights and fans and watering the plants at the appellant’s instructions. He claimed it was not his operation, and he never received any money from the marijuana.

Issue No. 1

Did the District Court err when it denied appellant’s motion for a directed verdict on the grounds that there was insufficient corroboration of the accomplice testimony?

Section 46-16-213, MCA, provides:

“A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, as defined in 45-2-301, unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”

Appellant contends there was no corroborating evidence to support the testimony of accomplice Tupper. We disagree. Officer Cordell Pearson of the Las Vegas police department testified at trial that, while undercover, he met with the appellant inside the Sahara Hotel on December 29, 1986. According to Pearson’s testimony, appellant represented to him that “she had a marijuana farm with a friend of hers in Missoula, Montana . . . that she had excellent marijuana, and that she did not spray it with any type of chemicals, that it was all THC . . . that she made several trips from Missoula to Phoenix, Arizona, where she transported marijuana in gutted out TV sets . . . [and] that her marijuana was Maui.”

Pearson was introduced to appellant in Las Vegas by a “confidential informant” whom appellant knew from Missoula. This informant brought the appellant and Pearson together in the Sahara Hotel, where they discussed the sale of marijuana. Pearson stated that the appellant told him the marijuana belonged to her and her daughter, who was in the car with it. They then arranged to meet in the parking lot of the hotel. Pearson testified that he and another officer drove to the appellant’s car and were there greeted by appellant Mia. The appellant and Mia got into his vehicle with three wrapped packages which contained nearly three pounds of marijuana.

Pearson testified that he arrested the two women after he paid $7,000 to the appellant for the marijuana. He further stated that he and other officers questioned the appellant about the drugs and were told by her that the marijuana “came from her connection in Missoula, Montana, a person by the name of Forest Tupper.” Appellant gave Pearson the address of Tupper and described the house as “a light colored house,” that “there was some TV’s on the porch and there was also a light colored vehicle parked in front.” Pearson relayed this information to Missoula County deputy sheriff Terry Lambert, who confirmed after investigation that the description given by the appellant was accurate.

Whether evidence is sufficient to corroborate the testimony of an accomplice is a question of law. The evidence must do more than show the crime was committed or the circumstances of its commission. It must raise more than a suspicion concerning defendant’s involvement in the crime. However, it need not be sufficient, by itself, to support a prima facia case against the defendant. The independent evidence need not extend to every fact to which the accomplice testifies. State v. Price (Mont. 1988), [234 Mont. 144,] 762 P.2d 232, 45 St.Rep. 1798; State v. Miller (Mont. 1988), [231 Mont. 497,] 757 P22d 1275, 45 St.Rep. 790. Further, the evidence may be circumstantial and it may come from the defendant or his witness. State v. Cain (1986), 221 Mont. 318, 718 P.2d 654.

Tupper claimed that appellant was the owner of the marijuana, that she expanded the entire operation and purchased much of the equipment in Spokane, Washington. He stated that appellant, Darrell and Mia would come and go as they pleased, at all hours of the day. He further claimed that even though he was expecting the police officers after the appellant was arrested, he chose not to dispose of the marijuana because he considered it belonged to appellant. We conclude that appellant’s statements to the Las Vegas authorities sufficiently corroborate the testimony of Tupper. The District Court properly exercised its discretion when it denied appellant’s motion for directed verdict.

Issue No. 2

Did the District Court err when it allowed introduction of evidence of other crimes?

Appellant argues the District Court committed reversible error when it allowed the State to introduce evidence at trial relating to the charges against her in Nevada. Appellant claims Rule 404(b), M.R.Evid., prohibited the introduction of any evidence at trial relative to her arrest.in Las Vegas. Rule 404(b), M.R.Evid., states:

“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 notice, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. [Emphasis added.]”

Appellant argues that the introduction of her arrest and charges against her in Nevada were unfairly prejudicial and require that her conviction be reversed. Appellant further claims that this “other crimes” evidence also violated the requirement of State v. Just (1979), 184 Mont. 262, 602 P.2d 957, because she received no notice that this evidence would be introduced and no cautionary instructions were given to the jury before the introduction of the evidence. However, appellant’s attorney made no objection at trial to the introduction of this evidence.

The State argues that, even though objection to introduction of this evidence has been waived by a failure of counsel to state an objection at trial, it was nonetheless property submitted as part of the corpus delicti. We agree. Rule 404(b), M.R.Evid., provides that evidence of other crimes may be admitted for other purposes. One purpose accepted by this Court has been when the other crimes, wrongs or acts introduced are inextricably or inseparably related to the crime charged. State v. Gillham, (1983), 206 Mont. 169, 670 P.2d 544. In such a case, “other crimes” evidence does not apply. State v. Romero (1986), 224 Mont. 431, 730 P.2d 1157; State v. Riley (1982), 199 Mont. 413, 649 P.2d 1273.

We conclude there is no question but that the activities of the appellant which resulted in her arrest in Nevada were inseparable and formed much of the basis of the crime charged here. It is not disputed that the marijuana which appellant attempted to sell to the undercover officer was the same as that grown in Tupper’s basement. It was the appellant statement to Pearson, whom she believed to be a potential buyer of the marijuana, that she grew the marijuana with a friend in a residence in Missoula. It additionally was appellant’s claim after her arrest that the marijuana was grown in Missoula, and that her connection was Forest Tupper.

In Gillham and Riley, supra, this Court held that the State is entitled to “present the entire corpus delicti of the charged offense including matters closely related to the offense and explanatory of it.” The events which took place in Nevada supported and explained the State’s position at trial: that appellant had constructive possession of the marijuana while she was in Montana. Additionally, appellant used these events to support her theory of defense to the charge: that she was unknowingly given the marijuana by Tupper as a Christmas gift to deliver to his grandson in Arizona, and that when the grandson was not to be found, Tupper told her to unload the marijuana in Las Vegas. We conclude that the “other crimes” evidence was introduced merely as part of the corpus delicti and thus did not constitute reversible error.

Issue No. 3

Did the District Court err by inadequately providing cautionary instructions to the jury on the introduction of “other crimes” evidence?

In light of our conclusion that the evidence of the events and charges in Nevada were part of the corpus delicti, and were not subject to the Just requirement that cautionary instructions be given to the jury, we will only briefly comment on this issue. In Gillham, we stated:

“Although the District Court did not violate Just, we encourage trial courts to apply the safeguards of Just liberally. Even though the procedures of Just may not be required in a given case, their use may be proper and wise. Especially in close cases, use of the Just procedures would assure fairness to defendants. The procedural safeguards were designed to protect those accused of crime from unfair surprise or double punishment. They should be liberally applied to that end.”

Gillham, 206 Mont. at 179, 670 P.2d at 440.

During the trial of this case, the District Court orally warned the jury, although after introduction of evidence of certain of the events in Las Vegas, that they should not consider that testimony as evidence of the crime charged here. Additionally, at the close of the defendants’ case, the court read the following instruction to the jury:

“Testimony has been offered as to statements and acts of the Defendants with witnesses in Nevada. You are not to be concerned with whether the Defendants committed a crime in Nevada. You are not to convict them of the crime charged here because you conclude they are guilty of a crime committed elsewhere. You are to consider this testimony, only as to whether it tends to show guilt or innocence of the crime to be considered by you.”

The District Court’s warning and instruction to the jury protected the appellant from any unfair inferences the jury might have made with respect to the introduction of the Nevada charges. We commend the court for the care exercised and encourage other courts to follow our recommendation in Gillham.

The judgment of the District Court is affirmed.

JUSTICES SHEEHY, HUNT, McDONOUGH and GULBRANDSON concur.


author: JUSTICE McDONOUGH

text:
    In re the APPLICATION FOR PRODUCTION OF POLICE RECORDS RE MICHAEL LACY. ALLSTATE INSURANCE CO., Applicant/Appellant, v. CITY OF BILLINGS, Respondent.
    No. 89-153.
    Submitted on Briefs Aug. 10, 1989.
    Decided Sept. 27, 1989.
    780 P.2d 186.

      Janice L. Rehberg, Crowley, Haughey, Hanson, Toole and Dietrich, Billings, for applicant/appellant.
    Paul Luwe, City Attorney’s Office, Hillings, for respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from an order denying appellant, Allstate Insurance Company’s (Allstate) application for an order directing the Billings Police Department (Department) to release to Allstate copies of its records relating to Michael Lacy, Allstate’s insured. We reverse and remand.

The sole issue in this case is:

Whether the District Court erred in denying Allstate’s application for the production of police records pertaining to the Billings Police Department’s investigation into the death of Allstate’s insured, Michael Lacy, for use during the insurance company investigation of policy coverage.

On January 11, 1988, Michael Lacy (Lacy) submitted an application to Allstate for a $130,000 life insurance policy. In the application, Lacy responded negatively to questions concerning prior use of illegal drugs, treatment for Acquired Immune Deficiency Syndrome (AIDS) and the presence of any mental or physical disorders. Based upon these representations, a policy was issued covering the life of Lacy. The policy was to be owned by and payable to Donn Cornelia.

Lacy died on September 5, 1988, at the War Bonnet Inn in Billings, Montana. The police were called to investigate his death. Upon arriving at the scene, the police found used syringes, quantities of white powder and other substances believed to be illegal drugs. The coroner’s report revealed that Lacy was a frequent drug user, and there was evidence of “recent and old” intravenous drug use, and that Lacy tested positive for HIV (the AIDS virus). The report determined that Lacy died of an intravenous drug overdose.

Because there was inconclusive evidence to support a finding of suicide, the coroner termed Lacy’s death accidental. Allstate believes, however, that further investigation may reveal that the death was, in fact, suicidal. Acting upon this belief and the circumstances surrounding the death, Allstate made a request to the Billings Police Department, to allow it access to files prepared during investigation of the incident. Allstate believes that the records may assist it in determining whether Lacy made misrepresentations in his application which would preclude the beneficiary from recovering any of the proceeds.

In order to comply with the Department’s interpretation of the Montana Criminal Justice Information Act, Allstate filed an application with the District Court seeking production of police records concerning the death of Michael Lacy. The Department objected to the general release of its records and requested the court to conduct an in camera review in order to decide which evidence should properly be released to Allstate. The Department also sought a protective order to limit further dissemination of any information released to Allstate. Allstate did not object to any of these conditions, and in fact drafted a proposed protective order.

The District Court, however, denied Allstate’s application. It held that Allstate was not authorized by law to receive the documents and was not, therefore, entitled to their production under the Criminal Justice Information Act. Allstate appealed the lower court’s ruling.

In any free society there is tension between competing rights allocated among the citizens. This tension is apparent when the right of personal privacy collides with society’s right to know relative to governmental operation. Because these two rights have been constitutionalized, this dilemma has been intensified in Montana.

The 1972 Montana Constitution elevated the right to privacy and the right to know to constitutional status. The right to privacy is found at Article II, Section 10, which provides:

“The right of individual privacy is essential to the well being of a free society and shall not be infringed without the showing of a compelling state interest.”

The right to know is found at Article II, Section 9, which states:

“No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.”

As the language of the right to know provision indicates, the tension between these two guarantees is aggravated by the fact that they are textually interdependent. In general, all citizens have an absolute right to observe and examine the operation of agencies within government. Curtailment of this right is only justified “in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.”

An easy solution which would provide concrete and uniform guidance in the balancing of these two guarantees has evaded both the courts and the legislature. The legislature has attempted to more clearly define and set the boundaries of the two rights. Of interest to this case is the Criminal Justice Information Act, which governs the dissemination of confidential criminal justice information. See, § 44-5-101, MCA, et seq.

Section 44-5-103(3), MCA, defines confidential criminal information as:

“a) criminal investigative information
“b) criminal intelligence information
“c) fingerprints and photographs
“d) criminal justice information or records made confidential by law, and
“e) any other criminal justice information not clearly defined as public criminal justice information.”

One of the purposes of the act is to “establish effective protection of individual privacy in confidential and nonconfidential criminal justice information collection, storage and dissemination.” Section 44-5-102, MCA. Obviously in certain situations investigatory material must be shielded from public review. Victims of sex crimes, for example, may have a legitimate expectation of privacy. On the other hand, suspects may have such an expectation in certain circumstances because criminal investigations occasionally result in the designation of the innocent as suspects, particularly in the early stages of investigation. See 42 Op. Att’y Gen. No. 119 at 7 (1988).

The legislature, therefore, in balancing the right of society to know of the existence and treatment of crime and the individual’s right to privacy, provided guidelines which dictate when this information would be subject to dissemination. Section 44-5-303, MCA, provides that “dissemination of confidential criminal justice information is restricted to criminal justice agencies or to those authorized by law to receive it.” (Emphasis added.)

The trial court interpreted this statute to mean that in order to be “authorized by law,” one must be specifically authorized by statute to receive criminal justice information. Because Allstate could not point to any statute which authorized insurance companies to receive criminal justice records, it was precluded from obtaining them. This interpretation does not take into consideration basic tenants of our constitutional system of government and statutory construction. The office of ultimately interpreting the Constitution lies exclusively in the judiciary. State v. Toomey (1959), 135 Mont. 35, 44, 335 P.2d at 1051, 1056.

The trial court’s opinion requiring statutory authorization for release of confidential criminal justice information effectively delegates to the legislature the authority to place binding construction upon the State Constitution. However, its provisions control the legislature, not vice versa. While the legislature is free to pass laws implementing constitutional provisions, its interpretations and restrictions will not be elevated over the protections found within the Constitution.

As we stated earlier the dissemination of confidential criminal justice information is restricted to criminal justice agencies or to those authorized by law to receive it. Section 44-5-303, MCA, (Emphasis added.) The trial court held that in order to be “authorized by law,” one must be specifically authorized by statute. We find that this reading of § 44-5-303, MCA, is too narrow.

Words utilized in a statute are to be given their natural, plain, ordinary and commonly understood meaning. State v. Perez (1952), 126 Mont. 15, 22, 243 P.2d 309, 312. Under its commonly understood meaning the word “law” includes constitutional as well as statutory law. See Sections 1-1-101 and -102, MCA, State ex rel. Burns v. Lachlen (1955), 129 Mont. 243, 284 P.2d 998. Accordingly, one is “authorized by law” to receive criminal justice information by the Right to Know provision of the Constitution. The only limitation on the right to receive this information is the constitutional right to privacy.

This conclusion is further bolstered by our finding that the “Right to Know” as contained in Article II, Section 9 of the Montana Constitution, is a self executing provision. A provision of a constitution is self executing when legislation is not required to give it effect. State ex rel. Stafford v. Fox-Great Falls Theater Corp. (1942), 114 Mont. 52, 74, 132 P.2d 689, 700. The clear language contained within Article II, Section 9, indicates that there was no intent on the part of the drafters to require any legislative action in order to effectuate its terms.

The legislature does not have the power to provide through the passage of statute who can exercise this right unless it finds that such curtailment is necessary to protect the right of individual privacy. Accordingly, any interpretation of § 44-5-303, MCA, which requires specific legislative authorization to review criminal justice information would render the statute unconstitutional. In determining the meaning of a statute, this Court will construe its terms in a manner which will preserve its constitutionality. Parker v. Yellowstone County (1962), 140 Mont. 538, 543, 374 P.2d 328, 330.

Because the judiciary has authority over the interpretation of the Constitution, it is the courts’ duty to balance the competing rights at issue in order to determine what, if any information, should be given to a party requesting information from the government. In view of the policies behind the Criminal Justice Information Act, it is incumbent upon a party to make a proper showing in order to be eligible to receive such specific confidential information. It appears Allstate has met this initial burden. Therefore, on remand the District Court shall conduct an in camera inspection of the documents at issue in order to determine what material could properly be released to Allstate. In making this examination, the court shall take into account and shall balance the competing interests of those involved.

Allstate should be accorded the widest breadth of information possible. However, its request should be reviewed with deference towards the privacy rights of those named in the police records. Any release of information, of course, can be conditioned upon limits contained within a protective order. This case is remanded and the trial court is instructed to conduct proceedings consistent with this opinion.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RONALD ROGERS, Defendant and Appellant.
    No. 89-167.
    Submitted on Briefs June 30, 1989.
    Decided Sept. 27, 1989.
    779 P.2d 927.

      Gary E. Wilcox, Billings, for defendant and appellant.
    Marc Raeicot, Atty. Gen., Kathy Seeley, Asst. Atty. Gen., Helena, Harold Hanser, County Atty., David Hoefer, Deputy, Billings, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Defendant, Ronald Rogers, appeals the decision of the District Court for the Thirteenth Judicial District, Yellowstone County, revoking his suspended sentence that was entered on June 26, 1987, and ordering instead that he serve ten years in the Montana State Prison with only six years suspended. We affirm.

The County Attorney of Yellowstone County, Montana, filed an information on December 17, 1986, charging Ronald Rogers, the defendant, with two felony counts of sexual assault and one misdemeanor count of indecent exposure. Rogers pled guilty on June 5, 1987 to all three counts. On June 26, 1987, the District Court for the Thirteenth Judicial District, Yellowstone County, sentenced Rogers to ten years imprisonment for each count of sexual assault, the sentences to run concurrently with all but thirty days suspended for each count. The District Court also sentenced Rogers to six months for indecent exposure and suspended this sentence in its entirety.

The conditions of Rogers’ suspended sentence included:

“1. The defendant shall not frequent any place where intoxicating liquor or beer is the chief item of sale nor shall he use intoxicants or beer; nor shall he purchase, use, possess, give, sell or administer any narcotic or dangerous drugs or have in his possession same without proper prescription by a doctor.
“9. The defendant shall continue with mental health counseling, at his own expense, as approved and monitored by the Adult Probation and Parole Field Services.”

Rogers subsequently signed an acknowledgment of acceptance of terms and conditions of probation which stated, in part:

“The conditions of said probation have been read by the undersigned and are fully understood, and the undersigned does hereby covenant that he will strictly carry out and follow the terms of said probation.”

The Deputy County Attorney filed a petition on December 5, 1988 for revocation of the order suspending Rogers’ sentence. The District Court held a hearing on the petition to revoke on January 31, 1989 and subsequently revoked Rogers’ suspended sentence and ordered that he serve ten years in the Montana State Prison with only six years suspended.

The sole issue on appeal is whether the District Court abused its discretion when it revoked Rogers’ suspended sentence and imposed a four year sentence of incarceration.

Rogers argues that he substantially complied with the terms and conditions of his probation and that his violations were only technical and were therefore not sufficient grounds for revocation of his suspended sentence. The record reveals that Rogers violated the terms and conditions of his suspended sentence by drinking alcohol and smoking marijuana. Rogers was also terminated from the sexual offender treatment program because he was diagnosed by his counselor as too dangerous to be treated on an outpatient basis.

Under §§ 46-18-201 (l)(b) and 46-1-202, MCA, a district court has the power to suspend a sentence and impose conditions for probation and other conditions it considers necessary to obtain the objectives of rehabilitation and the protection of society. A district court also has the discretion, under § 46-18-203(1), MCA, to revoke a suspended sentence. This section provides:

“(1) A judge, magistrate, or justice of the peace who has suspended the execution of a sentence or deferred the imposition of a sentence of imprisonment under 46-18-201 or his successor is authorized in his discretion to revoke the suspension or impose sentence and order the person committed. He may also, in his discretion, order the prisoner placed under the jurisdiction of the department of institutions as provided by law or retain such jurisdiction with his court.”

A district court’s decision to revoke a suspended sentence cancels a prior act of grace and is within the court’s discretion. State v. Kern (1984), 212 Mont. 385, 388, 695 P.2d 1300, 1301; State v. Robinson (1980), 190 Mont. 145, 149, 619 P.2d 813, 815.

In Robinson, we stated that when a district court revokes a suspended sentence all that is required is that the district court must be reasonably satisfied that the probationer’s conduct has not been what he agreed upon when he as given the suspended sentence. We further stated that the probationer was expected to walk the “straight and narrow” and conduct himself in a manner which would justify a district court’s leniency. Robinson, 190 Mont. at 148-49, 619 P.2d at 815.

On review, this Court’s role is to determine whether the District Court abused its discretion when it revoked Rogers’ suspended sentence. The record clearly demonstrates, and Rogers does not deny, that he did violate the conditions of his suspended sentence by drinking alcohol and smoking marijuana. Although Rogers argues that these violations were merely technical violations, we nonetheless agree with the Wyoming Supreme Court’s statement that “[n]o violation of a probation agreement is minor . . . .” Collins v. State (Wyo. 1986), 712 P.2d 368, 371. Therefore, in light of the record, the District Court did not abuse its discretion when it revoked Rogers’ suspended sentence.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES GULBRANDSON. HARRISON and WEBER concur.


text:
    CITY OF MISSOULA, Plaintiff and Respondent, v. RICHARD DALE PRINKKI, Defendant and Appellant.
    No. 89-215.
    Submitted Sept. 7, 1989.
    Decided Sept. 27, 1989.
    779 P.2d 921.
    Richard Dale Prinkki, Missoula, pro se.
    Marc Racicot, Atty. Gen., Clay R. Smith, Sol., Helena, and Donald Louden, City Attorney’s Office, Missoula, for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from a judgment of the District Court of the Fourth Judicial District, Missoula County, finding defendant Richard D. Prinkki (Prinkki) guilty of two counts of driving while his license was suspended, driving under the influence, failure to drive on the right side of the road, and driving with no insurance. We affirm.

Prinkki raises two issues on appeal:

1. Did the trial court err in ruling that Prinkki was not entitled to a jury of twelve persons in a trial de novo in District Court on appeal from a conviction in Municipal Court?

2. Did the District Court improperly deny Prinkki’s motion to sever the charges?

On January 20, 1988, Prinkki was arrested and charged with driving under the influence in violation of § 61-8-401, MCA; failure to drive on the right side of the road in violation of § 61-8-321, MCA; and driving with no insurance in violation of § 61-6-301, MCA. Subsequently, on May 16, 1988, Prinkki was convicted by a jury in Municipal Court for each of these offenses.

After his arrest on January 20, Prinkki was issued two separate citations for driving while his license was revoked in violation of § 61-5-212, MCA. These violations occurred on February 1 and February 2, 1988. Upon a different trial, held on May 17, 1988, Prinkki was convicted of both of these offenses.

Following the convictions, Prinkki filed a combined notice of appeal to the District Court appealing all of the convictions. At an omnibus hearing, Prinkki made a motion to sever the charges, which was denied. The new trial was set for a twelve person jury. The trial court later determined that, because the case was an appeal from Municipal Court, the defendant was only entitled to a six person jury. Trial by a six person jury was held and Prinkki was convicted of all charges on October 24, 1988. This appeal followed.

I

Prinkki argues that the trial court erred in ruling that he was not entitled to a twelve person jury. We disagree.

Procedure in municipal court is set forth at Title 46, Chapter 17, Part 4, MCA. Section 46-17-403, MCA, provides that: “In criminal cases . . . either party shall be entitled to a jury trial as provided in justices’ courts . .

In justice court, a defendant is entitled to a jury of no more that six persons. Section 46-17-201(1), MCA. Upon appeal to District Court, the defendant is entitled to “. . . be tried anew . . . and may be . . . tried before a jury of six.” Section 46-17-311(1), MCA. Because criminal defendants in municipal courts are afforded the same rights as those in justice courts, they, likewise, are only entitled to a six person jury. See § 46-17-403, MCA.

II

Prinkki next argues that the District court improperly denied his motion to sever the charges. We disagree.

In support of his argument, Prinkki relies upon State v. Orsborn (1976), 170 Mont. 480, 555 P.2d 509. In Orsborn we examined federal case law on the potentialities of prejudice resulting from the joinder of two crimes of the same class. This examination led us to the conclusion that three types of prejudice may result upon joinder of similar offenses. First, the jury may consider a defendant who is subject to multiple charges to be a “bad man.” Second, proof of guilt of one offense may be used to convict the defendant of another offense even though such proof may be inadmissible at trial. And finally, prejudice may result where the defendant wishes to testify on his own behalf on one charge but not on the other. Orsborn, 555 P.2d at 514-515.

A district court must consider these three elements when faced with a motion to sever offenses. However, we fail to find any actual prejudice which resulted from denial of his motion. This Court has accorded the trial courts a wide breadth of discretion in their determinations regarding separate trials. Joint trials are often necessary to preserve judicial economy. The defendant, therefore, must show actual and substantial prejudice. State v. Campbell (1980), 189 Mont. 107, 615 P.2d 190.

Prinkki argues, in substance, that the facts surrounding, the violations of driving while his license was revoked would tend to lead the jury to believe that he was a “bad man” who ignored the laws. The violation of February 2, occurred when a police officer discovered his car outside of a Missoula bar. Prinkki was arrested as he left the bar. These facts, Prinkki maintains, may have prejudiced the jury by leading it to believe that he as an alcoholic who continued to drive despite the fact that his license had been revoked.

In State v. Slice (1988), [231 Mont. 448,] 753 P.2d 1309, 45 St.Rep. 752, we upheld a district court’s denial of a motion to sever charges. In Slice, the defendant was tried on sixteen criminal counts. In upholding the conviction, we noted that reversal of a decision not to sever criminal charges is seldom granted. Slice, 753 P.2d at 1311. Generally, in order to be entitled to a reversal, a defendant must show the prejudice was so great as to prevent a fair trial.

The evidence asserted by Prinkki, which he argues led the jury to view him as a “bad man,” fails to meet the high standard of proof necessary to overturn his conviction. The offenses of February 1st and 2nd are regulatory in nature. We therefore do not agree that they substantially prejudiced Mr. Prinkki by casting him in a bad light. Given the deference afforded to the discretion of the trial court’s judgment in these matters, we decline to reverse its decision. Prinkki’s conviction is affirmed.

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


author: JUSTICE HARRISON

text:
    WILLIAM GIBSON, JR., INC., a Montana corporation, and William Gibson, Jr., individually, Plaintiffs and Appellants, v. JAMES GRAFF COMMUNICATIONS, INC., A Montana corporation, James Graff, individually, Sage Advertising, Inc., a Montana corporation, Robert A. Henkel, individually, and Sage Advertising, Billings, a partnership, Defendants and Respondents.
    No. 89-265.
    Submitted on Briefs Sept. 7, 1989.
    Decided Sept. 27, 1989.
    Rehearing Denied Nov. 3, 1989.
    780 P.2d 1131.
    John J. Cavan, Cavan, Smith, Grubbs & Cavan, Billings, for plaintiffs and appellants.
    Steven J. Lehman, Crowley, Haughey, Hanson, Toole and Dietrich, Billings, for defendants and respondents.
   JUSTICE HARRISON

delivered the Opinion of the Court.

William Gibson, Jr., Inc., and William Gibson, Jr., individually, (Gibson) filed suit in the Thirteenth Judicial District, Yellowstone County, seeking damages under several theories arising out of respondents’ termination of Gibson’s employment contract. The District Court granted respondents’ motion for a stay of proceedings and to compel arbitration based on arbitration clauses in the partnership agreement and employment agreement under the Federal Arbitration Act. From that order Gibson appeals. We affirm.

We rephrase the issues appellants present for review as follows:

1. Did the District Court err because the contracts at issue do not involve interstate commerce?

2. Did the District Court err because the appellants’ claims are outside the scope of the arbitration clause in the contracts?

3. Did the District Court err because respondents have defaulted and waived their right to insist on arbitration?

4. Did the District Court err because the contracts specify that the law of Montana will govern the rights and obligations of the parties thereunder, and any interpretation and construction of the agreement.

We will discuss only issue No. 1 as we find it to be controlling. We have considered appellants’ other contentions and find that they must be rejected.

The parties to this action entered into the following contracts: (1) an employment agreement between Sage Advertising, Billings, and James Graff dated November 30, 1979; (2) an employment agreement between Sage Advertising, Billings and William Gibson, and (3) a partnership agreement between Sage Advertising, James Graff Communicatio"ns, Inc., and William Gibson, Jr., Inc. forming Sage Advertising, Billings dated November 21, 1980.

All three contracts contain similar arbitration clauses. An example is the arbitration clause in the partnership agreement which provides as follows:

“Arbitration. If at any time during the existence of the Partnership or after the dissolution or termination' thereof, any question, disagreement or difference shall arise among the parties hereto concerning the Partnership, its affairs, transactions, business or accounts or the meaning or interpretation of the agreement, or the rights, duties or obligations of any party hereto, such question, disagreement or difference shall be submitted to and determined by the American Arbitration Association in accordance with its rules then in force.” (Emphasis added.)

Sage Advertising, Billings was in the business of providing advertising services. Sage Advertising, Billings, hired Mr. Graff as manager of its daily affairs and Mr. Gibson as creative director in charge of graphics plus other duties. During the term of Mr. Gibson’s employment, Sage Advertising, Billings performed advertising services for clients in Wyoming and North and South Dakota as well as Montana. Sage sold and delivered advertising goods in these states as well. Respondents terminated Mr. Gibson’s employment on August 11, 1984.

After Mr. Gibson’s termination, the parties attempted for several years to negotiate a settlement of Mr. Gibson’s wrongful termination claim. These negotiations included a January 14, 1987, letter to appellants’ counsel from respondents’ counsel which suggested binding arbitration to settle the dispute. Appellants filed suit on August 11, 1987. Respondents’ answer of September 24, 1987 raised as a defense the arbitration clauses in Gibson’s employment agreement and the partnership agreement.

Did the District Court err because the contracts at issue do not involve interstate commerce?

The law is clear that if a contract falls within the ambit of the Federal Arbitration Act, (FAA), 9 U.S.C. § 1, et seq., then an arbitration clause found in that contract must be enforced. Passage v. Prudential-Bache Securities (1986), 223 Mont. 60, 63-64, 727 P.2d 1298, 1300. Appellants contend that the District Court erred in holding that the partnership and employment agreements are contracts involving interstate commerce within the meaning of the FAA. We disagree.

Appellants acknowledge that Sage Advertising, Billings conducted business in Wyoming and North and South Dakota. By appellants’ estimate at least five percent of Sage’s clients were from out-of-state. But appellants assert that the amount of business Sage transacted in those states was too small to justify designating Sage as involved in interstate commerce. Although the percentage of Sage’s interstate business may have been small, it is clear that Sage, Billings’ activities affected interstate commerce bringing it within the scope of § 2 of the FAA. Bernhardt v. Polygraphic Co. (1956), 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199. Thus the District Court correctly found that the FAA applied to the partnership and employment agreements and required enforcement of the arbitration clauses.

We affirm the District Court.

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


text:
    PIERRE A. LaVE, Petitioner and Appellant, v. MONTANA STATE DEPARTMENT OF LABOR AND INDUSTRY, BOARD OF LABOR APPEALS; and Subaru of Billings, Respondents and Respondents.
    No. 89-284.
    Submitted on Briefs Aug. 17, 1989.
    Decided Sept. 28, 1989.
    780 P.2d 189.
    Michael G. Eiselein, Lynaugh, Fitzgerald & Eiselein, Billings, for petitioner and appellant.

      Charles K. Hail, Dept, of Labor & Industry, Helena, Laura Mitchell, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, for respondents and respondents.
   JUSTICE HUNT

delivered the Opinion of the Court.

Pierre LaVe, petitioner, appeals from an order of the District Court of the Thirteenth Judicial District, Yellowstone County, affirming the Board of Labor Appeals decision denying his unemployment benefits, pursuant to § 39-51-2410(5), MCA. We reverse.

The issue raised on appeal is whether the District Court erred in finding that a negligent failure to replace oil in the crankcase of a customer’s automobile constituted “misconduct” within the meaning of the Montana Unemployment Compensation Insurance statutes and, based on that conclusion, erred in affirming the Board of Labor Appeals denial of unemployment benefits.

LaVe was employed by Subaru of Billings as an automobile mechanic for approximately two years. On March 11, 1988, LaVe was assigned to service a customer’s vehicle which included changing the oil and filter. LaVe drained the oil and changed the filter. The next step in the process would have been to replace the oil but LaVe’s attention was diverted from the task when his supervisor directed him to work on another vehicle belonging to a “rush customer.” LaVe drove the car he was servicing outside and proceeded to work on the rush order. The original customer returned for his vehicle and drove it a short distance when the engine seized due to lack of oil. Approximately $2,300 worth of damage resulted. LaVe offered to pay for the damage.

On March 12, 1988, LaVe was terminated for “misconduct” by Subaru of Billings as a consequence of the incident. LaVe applied for unemployment benefits but the local Job Service representative and redetermination deputy denied the application on the grounds that LaVe was terminated for “misconduct.”

On May 12, 1988, a telephone hearing was held before an appeals referee who upheld the decision of the Job Service representative. On June 17, 1988, a hearing was held before the Board of Labor Appeals. The Board affirmed the decision of the appeals referee and adopted, as its own, the referee’s finding of fact. LaVe then petitioned the District Court for review of the Board’s decision. On March 27, 1989, the District Court entered its order affirming the decision of the Board and dismissing the petition for review based on the conclusion the LaVe was terminated for “misconduct.” From this order LaVe appeals.

The issue raised on appeal is whether the District Court erred in finding that a negligent failure to replace oil in the crankcase of a customer’s automobile constituted “misconduct” within the meaning of the Montana Unemployment Compensation Insurance statutes and, based on that conclusion, erred in affirming the Board of Labor Appeal’s denial of unemployment benefits.

The standard of review utilized in Department of Labor and Industry disputes is set forth in part under § 39-51-2410(5), MCA, as follows:

“In any judicial proceeding under 39-51-2406 through 39-51-2410, the findings of the board as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive and the jurisdiction of said court shall be confined to questions of law.” (Emphasis ours.)

In Zimmer-Jackson Associates, Inc., v. Department of Labor and Industry (Mont. 1988), [231 Mont. 357,] 752 P.2d 1095, 1097, 45 St.Rep. 679, 681, we stated that, upon review of a decision of the Department of Labor and Industry, the District Court, as well as this Court, must “treat the finding of the Board as conclusive if they are supported by substantial evidence and are absent fraud.” (Emphasis ours.) Also, in Zimmer-Jackson, 752 P.2d at 1097, we stated that it is for this Court to determine whether the District Court committed an abuse of discretion.

In the present case, the District Court found that, “Petitioner here did not have a bad purpose in not replacing the oil nor did he desire the injury sustained.” However, the court still found the LaVe’s inadvertent failure to replace oil in a customer’s automobile constituted statutory “misconduct,” which precluded unemployment benefits under § 39-51-2303(1), MCA. We disagree with the District Court’s finding.

Section 39-51-2303(1), MCA, provides in part:

“An individual shall be disqualified for benefits after being discharged:
“. . . for misconduct connected with the individual’s work or affecting the individual’s employment until the individual has performed services, other than self-employment, for which remuneration is received equal to or in excess of eight times the individual’s weekly benefit amount subsequent to the week in which the act causing the disqualification occurred.”

While the definition of “misconduct” is not set forth in the above statute, it is provided for under § 24.11.418, A.R.M., in part as follows:

“(1) This rule defines and interprets disqualification for discharge due to a claimant’s misconduct or misconduct affecting his employment as set forth in M.C.A. § 39-51-2303.
“(2) ‘Misconduct’ defined: Conduct on the part of the employee evincing such wilful or wanton disregard of an employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional or substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer. Mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertences or ordinary negligence in isolated instances, or good faith errors in judgment, or discretion are not to be deemed ‘misconduct’ within the meaning of the statute.
“(6) The statutory term misconduct shall not be literally applied so as to operate as a forfeiture except in clear instances of wilful or wanton misconduct by the claimant which affects the employer’s interest.” (Emphasis ours.)

Further, this Court has had the opportunity to define “misconduct” on several occasions. See Ashland Oil, Inc. v. Department of Labor and Industry (Mont. 1988), [235 Mont. 72,] 765 P.2d 727, 45 St.Rep. 2169 (misconduct found where employee wrote several non-sufficient fund checks to employer); Connolly v. Montana Board of Labor Appeals (1987), 226 Mont. 201, 734 P.2d 1211, 44 St.Rep. 587 (misconduct found where employee refused to follow his supervisor’s instructions, falsified records, refused to assist a patient in distress, and harassed and played games with his subordinates); Gaunce v. Board of Labor Appeals (1974), 164 Mont. 445, 524 P.2d 1108 (misconduct found where employee refused to work overtime and train new employees). In each of these cases, an intentional disregard of the employer’s expectation was committed by the employee. In the present case, however, LaVe was discharged for a negligent, not an intentional, act.

In Gaunce, 524 P.2d at 1110, this Court specifically defined misconduct as:

“[A] deliberate, wilful, or wanton disregard of an employer’s interest or of the standards of behavior which he has a right to expect of his employee, or . . . carelessness or negligence of such a degree or recurrence as to manifest equal culpability, wrongful intent, or evil design.”

Citing Boynton Cab Co. v. Neubeck (1941), 237 Wis. 249, 296 N.W. 636, as summarized in the Annot., 26 A.L.R. 3d 1356, 1359.

Here, a single incident of negligence was the basis for LaVe’s discharge. The evidence supports the fact that his inadvertence to replace oil in a customer’s automobile was nothing more than an incident of negligence. The act was not wilful, wanton, deliberate, intentional, done with wrongful intent, evil design, nor was it a deliberate disregard of the employer’s interest as required to support a finding of “misconduct.” In fact, LaVe offered to pay for the damage that resulted from his inadvertence.

In light of the evidence, LaVe’s conduct did not constitute “misconduct” as statutorily defined. LaVe’s unemployment compensation benefits were improperly denied and the District Court abused its discretion in affirming the decision of the Board of Labor Appeals.

The District Court’s order is reversed and remanded for a reconsideration of LaVe’s petition consistent with this opinion.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, HARRISON and GULBRANDSON concur.


text:
    In the MATTER OF A.B., Youth in Need of Care.
    No. 89-126.
    Submitted on Briefs Aug. 24, 1989.
    Decided Sept. 29, 1989.
    780 P.2d 622.

      Bell & Marra, Antonia P. Marra, Great Falls, for appellant.
    Marc Racicot, Atty. Gen., James Yellowtail, Asst. Atty. Gen., Helena, Patrick L. Paul, County Atty., Tammy Plubell, Deputy, Great Falls, for respondent.
    Billy Miller, Great Falls, for the mother.
    June Lord, Great Falls, for A.B.
    Leota Standing Bear, Box Elder, for Tribal Rep.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Eighth Judicial District, Cascade County, State of Montana. The appellant/father appeals the District Court’s December 20, 1988 order terminating his parental rights in regard to his daughter, A.B. We affirm.

On September 25, 1987, approximately one week before A.B’s first birthday, the Montana Department of Family Services, (Family Services) filed for temporary legal custody of A.B. The petition alleged that A.B. was abused, neglected or dependent within the meaning of § 41-3-102, MCA. The petition requested that A.B. be declared a youth in need of care and that A.B.’s temporary legal custody be granted to Family Services until further order of the court.

The District Court on September 28, 1987, issued its order and granted temporary legal custody of A.B. to Family Services until further order of the court. The District Court’s September 28, 1987 order further ordered A.B.’s father and mother to appear before the court on October 14, 1987, “to show cause, . . . why they . . . have not complied with this Order.” The order also stated that “An Adjudicatory Hearing will be held in conjunction with the Show Cause hearing.”

Two attempts were made by a deputy county attorney to serve A.B.’s natural parents with a citation for them to appear in court for the show cause hearing. However, the deputy county attorney was unable to make service due to the unknown addresses of A.B.’s parents. Therefore, A.B.’s parents were served by publication.

The adjudicatory hearing was held November 17, 1987. During that hearing pediatrician, Jack Haling, M.D., and a county social worker testified as to the cause of A.B.’s injuries being the result of physical abuse of the child. The following facts were testified to by Dr. Haling during that adjudicatory hearing:

“Q. When you saw her [A.B.] in May [1987] when she was transferred from Missoula, can you briefly summarize for the Court what you discovered from your examination of her?
“A. [By Dr. Haling] Sure. The history was that the child was allegedly well until she had an episode on the 17th of May, [1987] and the child at that time was found by her father to be gasping and choking and had no respiratory effort. She allegedly was resuscitated by hitting her on the back several times and given mouth to mouth resuscitation and taken to White Sulphur to see Dr. Laurence Casazza ...”

Dr. Haling testified further to the extent of A.B.’s injuries, including:

“[T]he workup in the hospital essentially showed she had a closed head injury which really couldn’t be explained by any kind of single traumatic event. She had cerebral edema brain swelling and we did X-rays of her entire body, and she was found to have fractured or dislocated the left elbow, and there were some fractures of the right fourth, fifth, sixth and seventh ribs. She had some fractures of the tibias . . . and had some evidence of trauma to the right femur which possibly could be from old fractures, and she had a fracture of the shaft or midportion of the left forearm. And, all of these X-ray findings of this boney [sic] trauma was of varying stages and various stages of healing.”

Finally, Dr. Haling testified as to A.B.’s prognosis:

“Well, her prognosis is very regarded because ... of the brain damage which is the main problem. The boney [sic] things will heal up pretty well, but she has significant brain damage. She has brain atrophy, and that her brain has been damaged to the point that it’s becoming smaller instead of growing which it is supposed to do at this age. She is an abnormally — she has consultations in Helena, and the child is doing well with the rehab program, but certainly does not appear that she will ever have a perfectly normal life neurologically.”

A.B’s parents, although served by publication did not appear at the November 17, 1987, hearing.

The District Court on November 23, 1987, issued its order and declared A.B. a youth in need of care and granted temporary custody of A.B. to Family Services until further order of the court. The court also set the disposition hearing to be held on December 11, 1987 at which time Family Services was ordered to submit for the court’s approval a proposed treatment plan for A.B.’s mother and father.

The disposition hearing was held on December 11, 1987, and a treatment plan was ordered and counsel appointed for A.B.’s mother and father. The treatment plan for A.B.’s mother and father was approved on December 28, 1987, neither the father nor counsel objected to the treatment plan nor attempted to modify its terms.

The father failed to comply with a single requirement of the plan, despite the efforts of social worker Lorna Antonsen to explain its requirements and assist the father in compliance. The father failed to comply with the treatment plan when he failed to maintain contact with the social worker assigned to A.B.’s case; and failed to maintain both reasonable visitation of A.B. and knowledge of her medical condition. Finally, the father attempted to visit A.B. only one time during the eighteen month period of time between A.B.’s hospitalization on May 21, 1987 and the termination hearing on December 9, 1988, another failed compliance to his treatment plan.

On behalf of both parents, appointed counsel, Billy B. Miller, filed motions with the District Court on June 27 and July 5, 1988. On July 26, 1988, a review hearing was held, counsel Miller appeared for the mother, June Lord appeared on A.B.’s behalf, and, at the State’s request, the District Court appointed counsel, Michael R. Tramelli, to represent the father in any further proceedings. Thereafter, on August 29, 1988, a petition for permanent legal custody and termination of parental rights of the father was filed with the court. Counsel Tramelli was permitted to withdraw as counsel for the father by order of the District Court filed October 5, 1988, and Antonia Marra was appointed to represent the father on that date.

On December 9, 1988, the hearing on the petition for termination of the father’s parental rights was held in the District Court. Testimony was presented by Bill J. Tacke, M.D., a physician specializing in physical medicine and rehabilitation; Lorna Antonsen, social worker with Blaine County Human Services; and Randy Koutnik, social worker for Family Services in Cascade County. Also, Deputy Cascade County Attorney Tammy K. Plubell, counsel Marra, for the father, and counsel Lord on behalf of A.B. were present. The father was not present, as he was serving a twenty-year prison sentence in the Montana State Prison. He had been convicted in Flathead County for aggravated assault of his daughter, A.B.

Thereafter, on December 20, 1988, the District Court entered its findings of fact and conclusions of law and order terminating the parental rights between the father and A.B.

The father now appeals from the December 20, 1988, order and presents three issues on appeal:

1. Whether a parent has a statutory or constitutional right to appointed counsel at every stage of child protective proceedings resulting in termination of parental rights.

2. Whether the treatment plan was impossible to complete and therefore an abuse of discretion.

3. Whether § 41-3-609(2)(e), MCA, authorizes consideration of criminal convictions and sentences of long-term incarceration unconfirmed by appellate review.

On appeal the father alleges he has a constitutional right to appointed counsel at every stage of a child protective proceeding which resulted in the termination of his parental rights. Throughout the proceedings upon the petition for permanent legal custody and termination of his parental rights, the father was represented by appointed counsel.

For the October and November, 1987 hearings, the father was served by publication because his whereabouts were unknown despite efforts to locate him. However, he claims that the absence of appointed counsel during the initial phases of the child custody proceedings violated his rights and was prejudicial to him. He also alleges that his rights were violated because he was not personally served with notice of the October and November, 1987, hearings.

In child protective proceedings culminating in the termination of parental rights, due process of law requires only that the parents have counsel prior to the permanent custody hearings. Due process does not require that the parents have counsel during the initial stages of the proceedings. Matter of M.F. (1982), 201 Mont. 277, 653 P.2d 1205. In so holding, this Court relied upon the United States Supreme Court in Lassiter v. Department of Social Services (1981), 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640.

The record indicates that counsel was appointed to represent both parents December 14, 1987. The father had the benefit of appointed counsel almost one full year prior to the termination of his parental rights. Furthermore, at the father’s termination of parental rights hearing on December 9, 1988, the father was represented by appointed counsel.

The test approved by the court under the circumstances of this case does not warrant the conclusion that the appointment of counsel at the inception of this case was necessary or mandatory. Every effort was made to provide legal assistance at appropriate times and several times it was necessary to locate the parents, parents who showed little or no interest in their child, A.B. We find no merit in the father’s first issue.

The second issue raised by the father is that the court’s treatment plan was impossible to complete and therefore an abuse of discretion. The father objects that the plan’s timetable was too short, roughly one and one-half months. He also contends that when the plan was submitted, the State was aware that he had advised counsel of his disagreement with its central objective, that is of course the removal of the child.

Parental rights of the father were terminated under § 41-3-609(l)(c), MCA. Under that statute the court may order a termination of the parent-child relationship upon the finding that “an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; . . .” Section 41-3-609(l)(c)(i), MCA.

In Matter of C.L.R. (1984), 211 Mont. 381, 685 P.2d 926, this Court made clear its preference for the use of a treatment plan:

“[Wle sound a stern warning that this Court will not permit the termination of parental rights without first establishing a treatment plan unless a showing of facts clearly proves the impossibility of any workable plan.”

Matter of C.L.R., 211 Mont. at 386, 685 P.2d at 928.

Here, the treatment plan was approved by the District Court on December 28, 1987. It required the father to obtain psychological and alcohol dependency evaluations by January 15, 1988, and to comply with the associated recommendations. It also required that the father visit A.B., meet with A.B.’s doctors, and maintain contact with the social worker and keep the social worker informed of his current address. The plan also advised the parents that noncompliance by February 15, 1988, could result in the potential loss of their parental rights.

In view of the District Court’s finding that the father failed to comply with a single requirement of the plan, we find the District Court did not err when it ordered treatment objectives of the plan completed by February 15, 1988. Further, the father claims that because of the criminal charges he was facing in Flathead County, and under the advice of his criminal defense counsel, he did not comply with the psychological evaluation. We find no merit in this contention. The record indicates that the father was represented by at least three different attorneys throughout these proceedings and the record is completely devoid of any objection to the terms of the treatment plan, and equally devoid of any attempt to modify its requirements or time limits.

The final objection is that § 41-3-609(2)(e), MCA, authorized consideration of criminal convictions and sentences providing for long-term incarceration. The father argues that the trial court may not, in the termination of parental rights, rely upon a criminal conviction and sentence of imprisonment unconfirmed by appellate review. No authority is offered in support of the foregoing proposition. We find no provision authorizing consideration of “long-term confinement” under the provisions of § 41-3-609(2) (e), MCA. Therefore we find no abuse of discretion.

The judgment is affirmed.

JUSTICES SHEEHY, HUNT, McDONOUGH and GULBRANDSON concur.