author: JUSTICE TRIEWEILER

text:
    LEFFINGWELL RANCH, INC., a Montana corporation; and PECKENPAUGH RANCHES, INC., a Montana corporation, Plaintiffs and Respondents, v. CARLO CIERI, JIM HUNT, and TERRY SARRAZIN, Members of the Board of County Commissioners of Park County, Montana; PARK COUNTY, a political subdivision of the State of Montana, Defendants, and ELK PARK RANCH, INC., a Montana Corporation, Defendant and Appellant.
    No. 95-429.
    Submitted on Briefs March 7, 1996.
    Decided May 14, 1996.
    53 St.Rep. 453.
    916 P.2d 751.
    276 Mont. 421.

      For Appellant: Karl Knuchel, Attorney at Law, Livingston (for Elk Park Ranch, Inc.)
    For Respondents: Jeffrey N. Pence, Huppert & Swindlehurst, Livingston.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

On April 19, 1993, Leffingwell Ranch, Inc., and Peckenpaugh Ranches, Inc., filed a complaint in the District Court for the Sixth Judicial District in Park County in which they sought a declaratory judgment regarding the status of Miles Creek Road and the extent to which the defendant, Elk Park Ranch, Inc., could use that road. Following a nonjury trial, the District Court entered its judgment and decree in which it held that Miles Creek Road was not a county road and that no public prescriptive easement had ever been established over the road. The decree limited Elk Park Ranch’s easements over Miles Creek Road to their historical use and specifically enjoined Elk Park Ranch from accessing its land development over the road. Elk Park Ranch appeals the District Court’s decree. We affirm the District Court.

We address two issues on appeal:

1. Did the District Court err when it determined that Miles Creek Road was not a county road because no public prescriptive easement had ever been established over that road?

2. Did the District Court err when it limited Elk Park Ranch’s use of Miles Creek Road to its historical use and enjoined Elk Park from accessing its land development by means of that road?

FACTUAL BACKGROUND

Leffingwell Ranch, Inc., is a family ranch corporation which owns real property in the Brackett Creek area of Park County. Peckenpaugh Ranches, Inc., is also a family ranch corporation with land holdings in the Brackett Creek area. In 1988, Elk Park Ranch, Inc., purchased substantial land in the Brackett Creek area from the Brackett Creek Grazing Association. In 1993, Elk Park filed a quitclaim deed dividing its property into 174 20-acre aliquot parcels. Elk Park’s intent was to develop and sell these smaller parcels. Elk Park planned to use Miles Creek Road, which crosses both the Leffingwell Ranch and the Peckenpaugh Ranch, to access the 20-acre parcels.

Miles Creek Road leaves the main Brackett Creek Road at a point on the Leffingwell Ranch and continues in a westerly direction for approximately one-quarter mile to the Leffingwell Ranch compound. The road then turns south and crosses Brackett Creek and continues across the northeast corner of the Peckenpaugh Ranch. As it leaves the Peckenpaugh Ranch, the road forks and one branch returns northeast to the Leffingwell Ranch; the other branch continues southeast into Elk Park Ranch’s property.

Miles Creek Road was originally developed by James Proffitt, J.W Camp, James Curdy, and Jim Christie during the late 1890s as an access route to their homesteads. In 1904, Mary Leffingwell’s father, Charles Bridgman, purchased what is now the Leffingwell Ranch from James Proffitt. In 1927, Bridgman granted a private easement over Miles Creek Road to J.W. Camp and James Curdy. James Curdy, in turn, granted a similar easement to J.W. Camp. Both easements granted rights-of-way thirty feet in width over the existing road for purposes of ingress and egress and required that the rights-of-way not be fenced, that any gates in place across the grantor’s property be kept closed at all times, and that the failure to do so would result in the loss of the easements. Camp was a predecessor in interest to Elk Park. However, when the easements were executed in 1927 they were only intended to benefit the small portion of land owned at that time by Camp and Curdy. The property that Elk Park now intends to access includes several additional sections of land which were acquired after the easements were conveyed in 1927.

The Bridgmans rerouted the lower portion of Miles Creek Road in the early 1930s through what is now the Leffingwell Ranch compound. For the most part, the Leffingwells maintained the road, although in the spring of 1948 Park County repaired the bridge on Miles Creek Road across Brackett Creek in exchange for gravel from the Leffingwell Ranch property. In the late 1970s a private logging company rebuilt this same bridge with the Leffingwell’s permission.

County road records indicate nominal expenditures for Miles Creek Road during the years 1953 and 1954. Although County road crews sometimes plowed the road up to the Leffingwells’ buildings dining the 1950s and 1960s, the plowing was done out of courtesy rather than as part of an official road maintenance program. The County ceased all work on the road by 1968.

Both the Leffingwells and the Peckenpaughs have always maintained gates on Miles Creek Road. Although at times they have given permission to members of the public to travel over the road for access to Forest Service land for recreational purposes or hunting, at least one of the gates located on the Leffingwell Ranch has been regularly locked, particularly during hunting season, since the early 1950s. All of the owners and parties in interest in that area, including Elk Park Ranch, have maintained separate locks on various gates on Miles Creek Road.

In 1972, a group of local hunters and sportsmen tried to have Miles Creek Road opened for access as a public road. After conducting a hearing, the Park Comity Commissioners concluded that the road was private. This position was reaffirmed in 1988 by the Park County Attorney in a letter to the local title company. In his letter, the Comity Attorney stated:

My conclusion at this time is that it would be very difficult for Park County to maintain that [Miles Creek Road] is a public road. The records at the court house only show that it was maintained at various times, but a finding by past commissioners that it was a private road indicates Park County never intended to assert control over it. From the facts presented to me, it is not clear that a prescriptive right was ever established on the road. Even if that is established, it appears it may well have been abandoned.

However, in a letter to the Leffingwell Ranch in 1993, the County Attorney reversed his position and advised the Leffingwells that the Park County Commissioners had decided that the road was in fact a county road and that the Leffingwells could no longer maintain a gate across it.

In response to the County Attorney’s 1993 letter, both the Leffingwell Ranch and the Peckenpaugh Ranch filed this action in the Sixth Judicial District Court. In their complaint, the plaintiffs alleged that Miles Creek Road is a private road to which Park County has no right or interest; that any attempt by Elk Park to access its planned development by means of Miles Creek Road would be in derogation of the intention and contemplation of the original 1927 agreements and would result in an overburdening of the easements; and that any attempt by Elk Park to access land not contemplated by the 1927 easements for any purposes other than for agricultural purposes would constitute a misuse of the easements.

Following a hearing, the District Court entered its judgment and decree. The Court concluded that Park County has no legal right or interest in Miles Creek Road; that no prescriptive easement has ever been established over the road; and that the 1927 easements were created and remain solely for the purpose of ingress and egress for agricultural purposes. The court permanently enjoined Elk Park from accessing its property by means of Miles Creek Road for development purposes or for anything other than agricultural purposes. The court further enjoined Elk Park Ranch from accessing that portion of its properties which were not contemplated by the 1927 easements and to which the 1927 easements are not appurtenant.

ISSUE 1

Did the District Court err when it determined that Miles Creek Road was not a county road because no public prescriptive easement had ever been established over that road?

We review a district court’s findings of fact to determine whether they are clearly erroneous. Rule 52(a), M.R.Civ.P. See also Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

In order to establish an easement by prescription, the party claiming the easement “must show open, notorious, exclusive, adverse, continuous and uninterrupted use of the easement claimed for the full statutory period.” Public Lands Access Assoc. v. Boone & Crockett Club Foundation (1993), 259 Mont. 279, 283, 856 P.2d 525, 527 (quoting Keebler v. Harding (1991), 247 Mont. 518, 521, 807 P.2d 1354, 1356). Since 1953, the statutory period has been five years. Section 70-19-404, MCA. Prior to that time the statutory period was ten years. Section 93-2507, RCM (1947). The burden is on the party seeking to establish the prescriptive easement to prove all elements of prescription. Public Lands Access, 259 Mont. at 283, 856 P.2d at 527.

In this case, Elk Park Ranch contends that the District Court erred when it concluded that a public prescriptive easement had not been established over Miles Creek Road. Elk Park maintains that the public’s use of Miles Creek Road for recreational and other purposes was adverse and was not by permission of the underlying landowners. Elk Park further maintains that there was an assumption of control of the road by Park County, which performed maintenance of the road in a continuous and uninterrupted manner for at least twelve years.

It is well-established that when permissive use is shown, an easement cannot be established since prescription is based on adverse use. Tanner v. Dream Island, Inc. (1996), [275 Mont. 414], 913 P.2d 641, 648.

George Leffingwell testified that in the 1960s he personally gave permission to agents of the Forest Service to access the Bangtail Ranger Station and to Montana State University to access a weather station it had established in the Bangtail area. John Hamm, a local rancher and a member of the Brackett Creek Grazing Association, which owned Elk Park’s property from 1965 to 1988, testified that he has always obtained permission from the Leffingwells to access Forest Service land over Miles Creek Road. In addition, Sue Ward, who owned Elk Park’s property from 1951 to 1964, testified that she obtained permission from the Leffingwells on a yearly basis to use Miles Creek Road to access her property.

Although at times the Leffingwells did let other members of the public use the road with their permission to access Forest Service land, George Leffingwell testified that he and his brother sometimes denied permission to recreationalists who sought access to public lands over Miles Creek Road. In addition to these explicit denials of access, there was evidence that the Leffingwells and the Peckenpaughs restricted access to Miles Creek Road with locked gates, private road signs, no trespassing signs, and orange painted posts.

Testimony at trial established that even Elk Park treated Miles Creek Road as a private road and denied access to members of the public. In fact, in 1989 one of Elk Park’s officers put a lock on one of the gates on Miles Creek Road because he had a hunting camp set up on Canyon Creek and did not want other hunters entering the area. As the District Court stated in its findings of fact: “It is grossly inconsistent for... Elk Park to contend they could so lock up the Miles Creek Road for their own use and purposes, and now contend it is a public road.”

In Descheemaeker v. Anderson (1957), 131 Mont. 322, 325-26, 310 P.2d 587, 589, we held that to establish a public right-of-way by prescription

the evidence must be convincing that the public have pursued a definite, fixed course, continuously and uninterruptedly, and coupled it with an assumption of control and right of use adversely under a claim or color of right, and not merely by the owner’s permission, over it for the statutory period ....

Plaintiffs produced substantial credible evidence that use of Miles Creek Road by members of the public was with their permission. However, Elk Park contends that Park County’s maintenance of the road, which was “by the public and for public good,” is sufficient to demonstrate the elements of prescription. Elk Park maintains that the County’s occasional acts of grading and plowing the road are adequate to establish Miles Creek Road as a public road.

This Court has held that adverse use by the public combined with the grading and maintaining of a road without the landowner’s permission is sufficient to establish adverse control. Rasmussen v. Fowler (1990), 245 Mont. 308, 312, 800 P.2d 1053, 1056; McClurg v. Flathead County Comm’rs (1980), 188 Mont. 20, 24, 610 P.2d 1153, 1156. For example, in McClurg, we determined that a public prescriptive easement existed when most members of the public had never asked for permission to use the road and when the County had graded, graveled, and performed maintenance on the road for a period in excess of twenty-five years. McClurg, 188 Mont. 20, 610 P.2d 1153.

In this case, however, the testimony at trial established that most of the limited work which Park County performed on Miles Creek Road was based on courtesy and cooperation with the local ranchers and not because of public duty. In addition, the testimony established that any work which was performed was not part of any regularly scheduled maintenance program and ceased after 1968.

Clarence Curdy lived on Miles Creek Road from 1918 until 1936. He testified that the Camps and the Curdys maintained the road with a horse-pulled drag during that period. He further testified that he never saw the County perform any kind of maintenance on the road in those years. Russell Bridgman, who lived on the Leffingwell Ranch on and off from 1912 until 1940 confirmed Curdy’s testimony. He testified that he had never seen Park County road crews on the road past the Leffingwell Ranch compound during that time.

Mary Leffingwell, who has lived on the Leffingwell Ranch since 1914, testified that in the early years local residents maintained Miles Creek Road. In later years, the Park County road crews would grade the road on their way to the Leffingwell Ranch to “warm up and use the telephone or borrow equipment or use the shop.”

George Leffingwell testified that in 1948 or 1949 the County replaced the bridge over Brackett Creek near the Leffingwell Ranch compound in exchange for gravel from the ranch. At the hearing, George did not recall that Park County had ever performed any regular maintenance or repair work on Miles Creek Road, although he stated that at times members of the county road crews would run the snowplow as a courtesy into the Leffingwell Ranch compound. In addition, George testified that in 1959, when he was driving a truck for the County, he was permitted to take some gravel home to gravel a portion of Miles Creek Road. In exchange, George permitted Park County to take rock and gravel from the Leffingwell Ranch without charge. George used his own ranch equipment to spread the gravel.

Sue Ward, who owned Elk Park’s property from 1951 to 1964, testified that at one time she and her husband Ted had asked the County to repair Miles Creek Road, but the County had refused because “it wasn’t in their territory.” The Wards lived in the Brackett Creek area from 1947 until 1974. Sue Ward testified that she had not seen any Park County road crews on Miles Creek Road during that time.

Kiel Peckenpaugh testified that he hauled calcite from a local mine to improve the Peckenpaugh’s portion of the road and hired private crews to work on the road. He testified that he had not seen Park County crews working on the road.

Robert Youngberg, who was Park Comity road foreman from 1968 until 1989, testified that the County did not perform any work on Miles Creek Road after 1968. He said that prior to that time the County had occasionally bladed or plowed the road but he acknowledged that it was common practice in his early years with the County to plow out ranchers’ private lanes as a courtesy. Although Youngberg testified that Miles Creek Road had been designated a county road (56B) on the official county road maps, there was no evidence that anyone had ever petitioned for the establishment of Miles Creek Road or attempted to dedicate the road to the public.

The District Court reviewed testimony offered by the defendants at trial and found that:

[E]ven assuming the defense testimony to be true, it is far from sufficient to prove that the Miles Creek road had ever become a public road by statutory petition and process, or by deed, dedication, condemnation or prescription, and it was far from sufficient to offset or overcome the overwhelming evidence presented by plaintiffs.

Based on our review of the record, we hold that the District Court’s findings of fact are supported by substantial evidence and are not clearly erroneous. We therefore affirm the District Court’s conclusion that the public has never established a prescriptive easement over Miles Creek Road and has no right to travel over the road without permission of the adjacent landowners.

ISSUE 2

Did the District Court err when it limited Elk Park Ranch’s use of Miles Creek Road to its historical use and enjoined Elk Park from accessing its land development by means of that road?

As stated above, our review of a district court’s findings of fact and conclusions of law is two-fold. We review a district court’s findings of fact to determine whether they are clearly erroneous; we review a district court’s conclusions of law to determine whether they are correct. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906; Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

In this case, the easements over Miles Creek Road were created by general warranty deeds in 1927 and provided for ingress and egress to the Camp and Curdy homesteads. The easements further required that the rights-of-way not be fenced and that any gates in place across the grantor’s property be kept closed at all times. The general warranty deeds provided that abuse of the terms of the easements would result in the loss of the easements. Based on the terms of the easements and the historical use of the easements, the District Court concluded that:

[A]ny expansion or inconsistent uses of the easements created by the 1927 warranty deeds would constitute an overburdening of these easements, and therefore would be in derogation of the common law and section 70-17-106, MCA, and defendants should be enjoined therefrom.

Section 70-17-106, MCA, provides that: “The extent of a servitude is determined by the terms of the grant or the nature of the enjoyment by which it was acquired.” In this case, the warranty deeds which created the 1927 easements did not specifically set forth the extent of the easements other than to provide that the Camps and the Curdys could use Miles Creek Road for “ingress and egress.” However, as we stated in Strahan v. Bush (1989), 237 Mont. 265, 268, 773 P.2d 718, 720:

If the easement is not specifically defined, it need only be such as is reasonably necessary and convenient for the purpose for which it was created. It is sometimes held ... where the grant or reservation of an easement is general in its terms, that an exercise of the right, with the acquiescence and consent of both parties, in a particular course or manner, fixes the right and limits it to that particular course or manner.

In this case, Miles Creek Road and the 1927 easements have never been used to access more than two or three homesteads and have only been employed for related agricultural purposes. When the road was established in the 1880s, it was probably no more than a horse or wagon trail to the early Camp, Curdy, and Christie homesteads. When the easements were conveyed in 1927 only the Camps, Curdys, and Bridgmans lived on the road, and all of them made their living from agricultural pursuits. Thus, at the time the easements were granted, the “ingress and egress” set forth by the terms of the general warranty deeds clearly did not contemplate anything more than limited access by the Camps and the Curdys to their property for agricultural purposes. In addition, the written requirement that the gates be kept closed and the right-of-way not be fenced is evidence of the fact that the parties did not contemplate substantial traffic or intend that the easements could be enlarged. As we stated in Lindley v. Maggert (1982), 198 Mont. 197, 199, 645 P.2d 430, 432:

[N]o use may be made of the right-of-way different from the use established at the time of the creation of the easement so as to burden the servient estate to a greater extent than was contemplated at the time the easement was created.

In this case, Elk Park has divided its property into 174 parcels and has indicated that it intends to resell the individual parcels for development. Elk Park has further indicated that it intends to access the developments by means of Miles Creek Road. As a result, 174 families would use Miles Creek Road, which travels directly though the Leffingwell Ranch compound, for ingress and egress to their homes. As the District Court noted in its findings of fact:

A very significant factor in this case is that Miles Creek road runs right through the Leffingwell Ranch and building compound and that they not only have had a family cattle business there for about 90 years, but since 1934 have operated a dude ranch under the name and style of G Bar M Guest Ranch. This limits its guests to ten or fifteen at a time so that the guests can have a more personal experience of the old west and cattle ranching. Any expansion of the use of Miles Creek road beyond its present use would seriously impact the Leffingwells’ guest ranch business, which is an essential monetary supplement to their cattle operation.

Furthermore, the District Court took note of the fact that Elk Park Ranch was aware of the restrictions on its access to its property in 1988 when it demanded a $10,000 reduction in the purchase price of its property for that reason, and in 1989 when it filed suit against Security Title of Park County, Inc., and the American Title Insurance Company complaining that the easements “severely restricted access.” In light of Elk Park’s prior lawsuit, the District Court noted the inconsistency of Elk Park’s present position and stated that “Elk Park should be judicially estopped from now taking a contrary position about the road.”

Elk Park also challenges the District Court’s conclusion that the easements cannot be enlarged to access property not owned by Camp or Curdy in 1927 when the easements were conveyed. Elk Park contends that although most of the property it intends to access by means of Miles Creek Road is property which was acquired after 1927, that property was later acquired by one of Camp’s successors and is contiguous to the remainder of the Camp property.

When the easements were executed in 1927, the Camps owned only Section 8 and the NV5 of Section 18, TIN, R8E, and the Curdys only owned the SV2 of Section 6, TIN, R8E, and the WV2 of Section 20. Although the 1927 easements limit Elk Park’s access to Section 8 and the NkS of Section 18, Elk Park now proposes to use the 1927 easements to access the following additional property which was not owned by either the Camps or the Curdys in 1927:

All of Sections 17, 18, and 21, E%20; Lots 1, 2 and SV2NEV4 of Section 19; and NV2NWV4NEV4, NVfcNEViNEVi,, NWV4NEV4 and EV2NWV4 of Section 18, TIN, R8E, M.P.M.

The 1927 easements are not appurtenant to any of the property which Elk Park now proposes to access.

As the Court of Appeals of Arizona noted:

It is elementary law that an easement cannot be extended by the owner of the dominant tenement to other land owned by him adjacent to or beyond the land to which it is appurtenant, for such extension would constitute an unreasonable increase of the burden of the servient tenement.

DND Neffson Co. v. Galleria Partners (Ariz. App. 1987), 745 P.2d 206, 207.

In this case, the 1927 easements are appurtenant only to those lands held by the grantees at the time the easements were granted, and therefore cannot be used to access after-acquired property.

We therefore hold that the District Court correctly concluded that F.lk Park cannot access its development over the 1927 easements because the use proposed by Elk Park was not contemplated by the original parties to the easements, would be inconsistent with the historical use of the easements, and would constitute an improper burdening of those easements. We further hold that the District Court correctly concluded that Elk Park cannot use the easements to access property which was not owned by James Camp in 1927 because easements cannot be used to access after-acquired property. We therefore affirm the order of the District Court.

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


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MICHAEL DARON SMITH, Defendant and Appellant.
    No. 95-181.
    Submitted on Briefs February 15, 1996.
    Decided May 14, 1996.
    53 St.Rep. 459.
    916 P.2d 773.
    276 Mont. 434.

      For Appellant: Patrick D. Sherlock; Sherlock & Nardi, Kalispell.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, John Paulson, Ass’t Attorney General, Helena; Thomas Esch, Flathead County Attorney, Ed Corrigan, Deputy Flathead County Attorney, Kalispell.
   JUSTICE GRAY

delivered the Opinion of the Court.

Michael Daron Smith (Smith) appeals from the judgment and sentence entered by the Eleventh Judicial District Court, Flathead County, on a jury verdict finding him guilty of the offense of felony theft of stolen property. We affirm.

We address the following dispositive issues:

1. Did the District Court abuse its discretion in admitting David Ferree’s testimony regarding his discussions with Smith?

2. Did the District Court abuse its discretion in excluding Ricky Burke’s testimony regarding Smith’s statements to him?

3. Did the District Court err in refusing Smith’s proposed jury instructions on theft of lost or mislaid property?

4. Did Smith’s sentence violate his constitutional right to due process?

On May 22, 1994, David Ferree (Ferree) observed two juveniles riding a motorcycle and a “four-wheeler” all terrain vehicle (collectively, the bikes) in a mountainous area near Bowser Lake, northwest of Kalispell, Montana. Later that day, Ferree observed the juveniles drive away from the area in a pickup truck without the bikes. Ferree suspected the bikes had been stolen and then hidden in the area.

Ferree told Smith about the bikes and where he thought they were hidden. The men discussed whether the bikes might be stolen property. They decided to retrieve the bikes and Smith borrowed money from his friend Ricky Burke to buy gasoline for that purpose. After retrieving the bikes, Smith and Ferree took them to Smith’s residence, cleaned them and placed them in Smith’s garage.

Smith and Ferree were certain that the bikes did not belong to the juveniles Ferree had seen riding them. They discussed whether to try to collect a reward for returning the bikes or sell them out of Montana. They checked Crimestoppers listings and the lost and found advertisements in the local newspaper and listened to the radio for any information regarding the bikes. Smith told Ferree that he had contacted the police, presumably to determine if the bikes were reported stolen.

An acquaintance of Ferree’s, Russell Geldrich, examined the bikes with the supposed purpose of purchasing them. Smith and Ferree quoted him a price and stated their preference that the bikes be taken where they could not be seen.

The bikes had been reported stolen on May 11 and 15,1994. Acting on a tip about their location, a detective from the Flathead County Sheriff’s Department and a detective from the Kalispell Police Department went to Smith’s residence on June 2, 1994. After gaining permission from Smith’s wife to search the garage, the detectives recovered the bikes.

The State of Montana (State) charged Smith by information with two counts of felony theft in violation of § 45-6-301(1), MCA. The information subsequently was amended to charge Smith with felony theft of the bikes or, in the alternative, with felony theft of stolen property under § 45-6-301(3), MCA. Smith rejected an offered plea bargain and exercised his right to a jury trial.

Smith’s trial was held on February 16,1995. The jury found Smith not guilty of felony theft of the bikes and guilty of felony theft of stolen property. The District Court subsequently sentenced Smith to the Montana Department of Corrections and Human Services for placement in an appropriate correctional institution or program for ten years. Smith appeals.

1. Did the District Court abuse its discretion in admitting David Ferree’s testimony regarding his discussions with Smith?

In addition to charging Smith, the State also charged Ferree with felony theft of the bikes. Ferree agreed to testify against Smith and to plead guilty to any offense of which Smith ultimately was convicted. In anticipation of Ferree’s testimony on the State’s behalf, Smith filed a pretrial memorandum addressing coconspirator testimony.

During the State’s direct examination of Ferree, the State questioned him regarding his statements to Smith and their discussions about the bikes. Based on the arguments in his pretrial memorandum, Smith objected to Ferree’s testimony concerning both his statements to Smith and the discussions between himself and Smith. The District Court overruled the objection and Ferree testified that he and Smith discussed the ownership of the bikes and suspected the bikes were stolen; at one point, Ferree affirmatively stated that he and Smith were sure the bikes did not belong to the juveniles Ferree observed riding them. Ferree also testified that he and Smith discussed attempting to either collect a reward for the bikes or sell them and send them out of state.

Smith argues generally that Ferree’s testimony was inadmissible. More specifically, he argues that Ferree testified as a coconspirator and that, because the State did not first establish the existence of a conspiracy between Smith and Ferree by independent evidence, Ferree’s testimony regarding his discussions with Smith and anything Smith said to him was not admissible pursuant to Rule 801(d)(2)(E), M.R.Evid. We review a trial court’s evidentiary rulings to determine whether the court abused its discretion. State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063, 1067 (citation omitted).

“A statement is not hearsay if: ... [t]he statement is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” Rule 801(d)(2)(E), M.R.Evid. Before a coconspirator’s statement may be admitted under Rule 801(d)(2)(E), M.R.Evid., the State must establish a proper foundation, by a preponderance of the independent evidence, that a conspiracy exists. State v. Stever (1987), 225 Mont. 336, 342, 732 P.2d 853, 857. The State must show that a conspiracy exists, that the declarant coconspirator and the defendant were members of the conspiracy and that the declaration was made in furtherance of the conspiracy. Stever, 732 P.2d at 857 (citations omitted). Smith contends that the State failed to meet the foundational requirements of Stever and, therefore, that the District Court abused its discretion in admitting Ferree’s testimony. The State does not assert that it established the requisite foundation for admission under Rule 801(d)(2)(E), M.R.Evid. It argues that Ferree’s testimony was admissible under other provisions of the Montana Rules of Evidence and, therefore, that whether it met the foundational requirements for admission under Rule 801(d)(2)(E) is not relevant.

We observe, at the outset, that if evidence is admissible under one provision of the rules of evidence, it is admissible regardless of inadmissibility under another rule. See, e.g., Smith v. Updegraff (8th Cir. 1984), 744 F.2d 1354, 1364-65 n. 5 (citing United States v. Hewitt (11th Cir. 1981), 663 F.2d 1381). Thus, if Ferree’s testimony regarding his own statements to Smith and the discussions between the two is otherwise admissible, we need not address Smith’s contention that it was inadmissible under Rule 801(d)(2)(E), M.R.Evid., because the Stever requirements were not met.

We first address Smith’s objection to the State’s question to Ferree regarding what Ferree told Smith. The record reflects that, subsequent to the posing of the question and the District Court’s indication — in response to Smith’s objection — that the question did not appear to solicit hearsay, Ferree responded that he told Smith about the bikes and his feelings about the ownership of the bikes. A witness may testify to facts within that witness’ personal knowledge. Rule 602, M.R.Evid. Here, Ferree testified to facts that were within his own personal knowledge, namely his own statements.

Moreover, Ferree himself was the “declarant” under Rule 801(b), M.R.Evid., with regard to his own statements and he was testifying at trial as to those statements. For these reasons, Ferree’s testimony about his own statements did not come within the definition of hearsay contained in Rule 801(c), M.R.Evid.

We next address Smith’s objection to Ferree’s alleged coconspirator testimony concerning his discussions with Smith and Smith’s statements during those conversations. The State argues that Smith’s statements in these conversations were admissions under Rule 801(d)(2)(A), M.R.Evid., and, therefore, “not hearsay” pursuant to the express language of Rule 801(d). We agree.

An “admission by party-opponent” under Rule 801(d)(2)(A), M.R.Evid., is a statement which is “the party’s own statement” offered against the party. Here, Smith is the party defendant. Smith’s statements during discussions with Ferree obviously were Smith’s own statements. Moreover, those statements of Smith’s were offered against Smith, via Ferree’s testimony, by the State. As was the case in State v. Ottwell (1989), 239 Mont. 150, 158, 779 P.2d 500, 505, Smith’s statements were made by the party defendant in a criminal case and offered against the party, by the prosecution, through the testimony of the person to whom they were made. We conclude that Smith’s statements to Ferree were “not hearsay” under Rule 801(d)(2)(A), M.R.Evid.

Finally, it is clear that Ferree’s testimony about his statements to Smith and Smith’s statements during their discussions was relevant under Rule 401, M.R.Evid., in that it related to Smith’s knowledge and mental state both at the time he and Ferree obtained control over the bikes and at later times. The mental state element of the alternative offenses with which Smith was charged is “purposely or knowingly.” See §§ 45-6-301(1) and (3), MCA. Generally, “[a]ll relevant evidence is admissible.” Rule 402, M.R.Evid.

We conclude that Ferree’s testimony about his own statements and Smith’s statements to him was not hearsay and was relevant. Therefore, we further conclude that it was admissible under Rule 402, M.R.Evid., without regard to the foundational requirements for admissibility under Rule 801(d)(2)(E), M.R.Evid. See Smith, 744 F.2d at 1364-65. We hold, therefore, that the District Court did not abuse its discretion in admitting Ferree’s testimony concerning his discussions with Smith or Smith’s statements to him.

2. Did the District Court abuse its discretion in excluding Ricky Burke’s testimony regarding Smith’s statements to him?

Ricky Burke (Burke), the friend from whom Smith borrowed money for gas needed to retrieve the bikes, testified on Smith’s behalf at trial. The State objected, on hearsay grounds, to questions of Burke about Smith’s statements to him regarding Smith’s purpose in borrowing gas money. Smith’s counsel responded that, because Smith was a party to the case, his statements to Burke were declarations by a party and, therefore, admissible. The District Court expressed doubts, but overruled the State’s objection.

Burke’s testimony concerning Smith’s statements to him continued. The District Court subsequently reversed its earlier ruling and determined that Smith’s statements to Burke were not admissions under Rule 801(d)(2)(A), M.R.Evid., presumably because they were not offered against Smith. On that basis, the court precluded further testimony from Burke regarding Smith’s statements to him.

We observe at the outset that Smith does not contend on appeal that the District Court abused its discretion in determining that Smith’s statements to Burke were not admissions under Rule 801(d)(2)(A), M.R.Evid. Instead, Smith argues that his statements to Burke were admissible under the hearsay exception for then-existing state of mind set forth in Rule 803(3), M.R.Evid. However, Smith did not offer Burke’s testimony to the District Court pursuant to Rule 803(3), M.R.Evid.; as set forth above, the basis on which the testimony was offered was Rule 801(d)(2)(A), M.R.Evid.

“It is axiomatic that a party may not change the theory on appeal from that advanced in the district court.” State v. Henderson (1994), 265 Mont. 454, 458, 877 P.2d 1013, 1016 (citation omitted). Smith having failed to raise the admissibility of Burke’s testimony under Rule 803(3), M.R.Evid., in the District Court, he may not raise it in this Court. See State v. Johnson (1993), 257 Mont. 157, 162, 848 P.2d 496, 499. We consider for review only those questions raised in the trial court (Johnson, 848 P.2d at 499) and, therefore, we decline to address the admissibility of Burke’s testimony under Rule 803(3), M.R.Evid.

3. Did the District Court err in refusing Smith’s proposed jury instructions on theft of lost or mislaid property?

Faced with alternative charges of felony theft and felony theft of stolen property, Smith filed a pretrial memorandum addressing what he denominated as the § 45-6-302, MCA, “lesser included offense” of theft of lost or mislaid property, a misdemeanor. He also submitted a series of proposed jury instructions on that offense, all of which were refused by the District Court. Smith argues that he was entitled to the instructions and that the court’s refusal to give them constituted error.

A criminal defendant is entitled to a requested lesser included offense instruction where, based on the evidence, the jury rationally could be warranted in convicting on the lesser offense and acquitting on the greater offense. Section 46-16-607(2), MCA; State v. Fisch (1994), 266 Mont. 520, 522, 881 P.2d 626, 628. Thus, we first must determine whether, as a matter of law, theft of lost or mislaid property is a lesser included offense of theft of stolen property. If so, we then must determine whether Smith’s proposed instructions were supported by the evidence.

Insofar as it is relevant here, an “included offense” is statutorily defined as one which “is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]” Section 46-1-202(8)(a), MCA. The term “facts,” as used in the statute, refers to the statutory elements of the offense and not the individual facts of each case. State v. Ritchson (1981), 193 Mont. 112, 116, 630 P.2d 234, 237.

Section 46-1-202(8)(a), MCA, does not, by its terms, define a ‘lesser” included offense. The test we traditionally have applied in determining whether an offense is a lesser included offense of another offense was stated in Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed 306, 309. See, e.g., State v. Arlington (1994), 265 Mont. 127, 163, 875 P.2d 307, 330; State v. Long (1986), 223 Mont. 502, 510, 726 P.2d 1364, 1369. In the context of a defendant’s entitlement to jury instructions on an alleged lesser included offense, we have characterized the Blockburger test as stating that “separate distinct offenses require proof of additional facts, where lesser included offenses do not.” Long, 726 P.2d at 1369. Applying that test in Long, we concluded that “the statutes defining misdemeanor assault and sexual assault clearly indicate that misdemeanor assault is not a lesser included offense of sexual assault” because misdemeanor assault requires proof that the physical contact be of an insulting or provoking nature and no such proof is required for sexual assault. Long, 726 P.2d at 1369.

The offense of theft of stolen property is committed when a person purposely or knowingly obtains control over stolen property, knowing the property to have been stolen by another, and has the purpose of depriving the owner of the property. Section 45-6-301(3)(a), MCA. Thus, to establish the offense of theft of stolen property, the State must prove — among other things — that the property was stolen and that the defendant knew the property was stolen by another person.

The offense of theft of lost or mislaid property is committed when a person obtains control over lost or mislaid property and:

(a) knows or learns the identity of the owner or knows, is aware of, or learns of a reasonable method of identifying the owner;
(b) fails to take reasonable measures to restore the property to the owner; and
(c) has the purpose of depriving the owner permanently of the use or benefit of the property.

Section 45-6-302, MCA. To establish the offense of theft of lost or mislaid property, the State must prove — among other things — that the property was lost or mislaid; that the defendant knew or learned the owner’s identity or learned of a reasonable method of identifying the owner; and that the defendant failed to take reasonable measures to return the property.

It is clear from this limited comparison of the elements of the offenses of theft of stolen property and theft of lost or mislaid property that these are distinct offenses, each of which requires proof of at least one “fact” that the other does not. While both offenses are premised on a person obtaining control over property belonging to another, the very nature of the property at the time control is obtained is markedly different in the two offenses: for one offense, the State must prove that the property was stolen property while, for the other offense, the State must prove that the property was lost or mislaid property. Nor does the existence of a substantially similar element in the two offenses — “has the purpose of depriving the owner of the property” in the offense of theft of stolen property and “has the purpose of depriving the owner permanently of the use or benefit of the property” in theft of lost or mislaid property (see §§ 45-6-301(3)(a) and 45-6-302(c), MCA) — render the latter a lesser included offense of the former. Substantial overlap in the proof which would be offered to establish both offenses does not make one offense a lesser included offense of another where each requires proof of different facts. Arlington, 875 P.2d at 330. Thus, we conclude that theft of lost or mislaid property is not a lesser included offense of theft of stolen property.

As we observed at the outset of our discussion of this issue, we need only reach the secondary question of whether evidence supported Smith’s proposed instructions regarding theft of lost or mislaid property if we determine that that offense is a lesser included offense of theft of stolen property. Having concluded otherwise, no amount of evidence could have entitled Smith to instructions on the offense of theft of lost or mislaid property. We hold, therefore, that the District Court did not err in refusing Smith’s instructions.

4. Did Smith’s sentence violate his constitutional right to due process?

Prior to trial, the State offered Smith a plea agreement under which it would recommend a probationary sentence, deferred or suspended depending on his prior record, in exchange for a guilty plea to the theft charge. Smith rejected the offer and exercised his right to a jury trial. After the jury found Smith guilty of the offense of felony theft of stolen property, the District Court sentenced Smith to the Department of Corrections and Human Services for placement in an appropriate institution or program for ten years. Smith contends that the sentence penalized him for exercising his right to a jury trial in violation of his right to due process.

District courts have broad discretion in sentencing defendants convicted of criminal offenses. State v. Lloyd (1984), 208 Mont. 195, 199, 676 P.2d 229, 231. We generally review a criminal sentence only for legality — that is, to determine whether it is within the statutory parameters established by the legislature; where a sentence is within those parameters, we generally will affirm it. See State v. Almanza (1987), 229 Mont. 383, 386, 746 P.2d 1089, 1091. There are, however, exceptions to these general rules.

Punishing a person for exercising a constitutional right is a basic due process violation. State v. Baldwin (1981), 192 Mont. 521, 525, 629 P.2d 222, 225 (citations omitted). Indeed, in Baldwin, we vacated and remanded for resentencing because we were unable to determine from the record whether the defendant was punished for exercising his right to a jury trial after rejecting a plea agreement. Baldwin, 629 P.2d at 226.

In Baldwin, the trial court was directly involved in the unsuccessful plea negotiation process. The defendant chose not to plead guilty and the case proceeded to trial. After the defendant’s conviction, the trial court imposed a much harsher sentence than it originally had offered in exchange for a guilty plea. Baldwin, 629 P.2d at 224. We held that a trial court which involves itself in an unsuccessful plea bargaining process and, thereafter, imposes a harsher sentence than was offered in exchange for a guilty plea, must expressly point out the factors which justify the increased sentence. Baldwin, 629 P.2d at 226. Because the trial court had not done so, there was no assurance that the sentence was not increased in retaliation for the defendant’s insistence on a jury trial; on that basis, we remanded for resentencing. Baldwin, 629 P.2d at 226. We followed Baldwin and remanded for resentencing on substantially similar facts in State v. Tate (1982), 196 Mont. 248, 639 P.2d 1149.

Here, Smith concedes that the District Court was not involved in any way in the unsuccessful plea negotiations between himself and the State. Thus, Baldwin has no application here.

Smith also concedes that the District Court specified the bases for the sentence it imposed, and he does not challenge any of those bases. Simply put, nothing on the record before us supports Smith’s claim that his sentence was improperly increased because he exercised his right to a jury trial. We hold, therefore, that Smith’s sentence did not violate his constitutional right to due process.

Affirmed.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JESSE JAMES JOHNSON, Defendant and Appellant.
    No. 95-255.
    Submitted on Briefs March 14, 1996.
    Decided May 14, 1996.
    53 St.Rep. 464.
    918 P.2d 293.
    276 Mont. 447.

      For Appellant: Bruce E. Becker, Attorney at Law, Livingston.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; Tara Depuy, Park County Attorney, Livingston.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The defendant, Jesse James Johnson, was charged by information filed in the District Court for the Sixth Judicial District in Park County with the offense of felony criminal mischief, in violation of § 45-6-101, MCA. Following a trial by jury, Johnson was found guilty of the crime charged. Johnson appeals his conviction and sentence. We reverse the judgment of the District Court.

The dispositive issue on appeal is whether the District Court erred when it denied Johnson’s motion for a directed verdict?

FACTUAL BACKGROUND

On June 25, 1994, Bobby Jo Sarrazin traveled to Billings with a friend and left her 1983 Honda Accord parked at the U.S. Highway 89 Interchange outside of Livingston. At approximately 2 a.m., Sarrazin returned to her car and discovered that all of her car windows had been broken. She immediately went to the Park County Sheriff’s Office and reported the damage. Shortly after she arrived at the sheriff’s office it was reported that her car was now on fire; by the time the volunteer fire department arrived at the scene, the car was engulfed in flames.

Following an investigation by the Park County Sheriff’s Office, the State charged four individuals with responsibility for the damage to Sarrazin’s car. On August 1,1994, the State filed a complaint against Patricia Zumwalt, a/k/a Sunshine Perez, in which she was accused of criminal mischief, a felony, in violation of § 45-6-101, MCA, for destroying the victim’s car and of obstruction of justice, a misdemeanor. The State also issued a warrant for her arrest at that time. On August 9, 1994, the State charged Eddie Johnson and defendant Jesse James Johnson by information with the offense of criminal mischief, a felony, in violation of § 45-6-101, MCA, for allegedly destroying the victim’s car, and also charged Jesse Johnson with criminal endangerment, a felony. D.J., a juvenile, was also charged with criminal mischief.

On September 6,1994, Sunshine Perez entered into an agreement with the State to defer prosecution. In the agreement, she acknowledged that she had been charged with criminal mischief and that the chárges would be dismissed if she successfully completed the terms of the agreement. One of the terms required that she testify for the State against any of the other defendants. In the agreement she was specifically advised as follows:

(c) That defendant shall appear and testify folly and accurately if she is called as a witness in any proceedings against any of the other defendants.
5. That defendant understands that if she fails to perform the conditions contained herein, an information will be filed and a trial will be held.
6. That defendant understands and accepts the responsibilities of the deferred prosecution program and understands that if she satisfactorily abides by and completes the terms and conditions thereof, any charges previously filed in this matter will be dismissed at her request.

On November 1, 1994, Eddie Johnson pled guilty to the criminal mischief charge. On August 15, 1994, Jesse Johnson entered a plea of not guilty to both the criminal mischief and criminal endangerment charges. The State later dismissed the criminal endangerment charge and Johnson was tried for criminal mischief on December 21, 1994. The State also dropped the charges against the juvenile.

Prior to trial, the defendant filed a motion to dismiss for the reason that the State could not prove the crime charged because the only evidence which tended to connect the defendant to the crime was the testimony of Patricia Zumwalt, a/k/a Sunshine Perez, and Eddie Johnson, both of whom were accomplices. The court denied the motion and held that the status of the witnesses would be determined at trial.

The State concedes that at Jesse Johnson’s trial the only evidence which connected him to the charged crime came from the testimony of Eddie Johnson and Sunshine Perez. It also concedes that Eddie Johnson was an accomplice to the crime. However, at trial and on appeal, the State has taken the position that Sunshine Perez was not an accomplice and committed no crime. It did so while continuing to threaten her with prosecution for the crime if she did not cooperate with the prosecution of Jesse Johnson.

After the State presented its evidence, Johnson moved for a directed verdict on the grounds that the State had failed to prove its case because it presented only uncorroborated accomplice testimony. The court denied Johnson’s motion.

Following the jury trial, Johnson was convicted of criminal mischief and sentenced.

DISCUSSION

Did the District Court err when it denied Johnson’s motion for a directed verdict?

Pursuant to § 46-16-403, MCA, a trial court may direct a verdict of acquittal and dismiss a criminal charge at the close of the State’s case when the evidence is insufficient to support a guilty verdict. The standard of review of a district court’s denial of a motion for a directed verdict is whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Section 46-16-403, MCA; State v. Brown (1995), 270 Mont. 454, 456, 893 P.2d 320, 321.

In Montana, a person may not be convicted of a crime based solely on the testimony of an accomplice.

A person may not be found guilty of an offense on the testimony of one responsible or legally accountable for the same offense ... unless the testimony is corroborated by other evidence that 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.

Section 46-16-213, MCA. A person is legally accountable for the conduct of another when:

(3) either before or during the commission of an offense with the purpose to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempt's to aid such other person in the planning or commission of the offense.

Section 45-2-302(3), MCA (emphasis added).

The State contends that the District Court did not err when it denied Johnson’s motion for a directed verdict because Sunshine’s status as an accomplice was for the jury to decide after proper instruction by the court. The State does not contend that Sunshine’s testimony was corroborated by other non-accomplice testimony.

Johnson contends that the State should he precluded from disavowing Sunshine’s role as an accomplice while at the same time threatening to prosecute her for the same offense pursuant to a deferred prosecution agreement.

The issue of whether a witness for the State is an accomplice is — unless such fact is undisputed — for the jury, based on proper instruction from the court. State v. Gonyea (1987), 225 Mont. 56, 57, 730 P.2d 424, 425 (citing State v. Slothower (1919), 56 Mont. 230, 232, 182 P. 270, 271). The State contends that Sunshine’s role as an accomplice was in dispute; however, in this case, the State filed a criminal complaint against Sunshine for the offense of felony criminal mischief and then arrested Sunshine pursuant to a warrant issued by the Justice of the Peace. The State did not dismiss the charges against Sunshine Perez prior to Johnson’s trial, but instead, entered into a deferred prosecution agreement with her which required her to testify against Johnson at the trial or face further prosecution herself for the same crimes.

Montana law provides that before any criminal charge can be brought against an individual or an arrest made, probable cause to believe that the person has committed the crime is required. Section 46-11-110, MCA; Section 46-6-201, MCA. Specifically, § 46-11-110, MCA, provides:

When a complaint is presented to a court charging a person with the commission of an offense, the court shall examine the sworn complaint or any affidavits, if filed, to determine whether probable cause exists to allow the filing of a charge.

Section 46-6-201, MCA, provides in part:

If it appears ... that there is probable cause to believe that the person against whom the complaint was made has committed an offense, a warrant shall be issued by the court for the arrest of the person complained against.

The Rules of Professional Responsibility adopted by this Court preclude prosecution which is not supported by probable cause. Rule 3.8 provides that “[t]he prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.” “Probable cause is ... the concurrence of the belief of guilt with the existence of facts and circumstances reasonably warranting the belief.” State ex rel. Wong You v. District Court (1938), 106 Mont. 347, 353, 78 P.2d 353, 355; see also State v. Lynn (1990), 243 Mont. 430, 434, 795 P.2d 429, 432.

Nevertheless, on appeal the State argues that Sunshine

was a passenger in a vehicle in which criminal activity was discussed. She knew what was unfolding and was present when the offense was committed. Nonetheless, she did not share a common intent with Appellant to set fire to the vehicle nor did she unite in the planning, preparation or commission of the offense. Given these facts, the jury was warranted in concluding that Sunshine Perez was not an accomplice so that her testimony need not have been corroborated under Mont. Code Ann. § 46-16-213.

The State cites prior cases, including State v. Duncan (1991), 247 Mont. 232, 805 P.2d 1387, in which we have found witnesses were not accomplices and contends those holdings are applicable in this case. However, Duncan and other cases in which we have considered accomplice status are distinguishable from this case. In previous cases involving accomplice witnesses, the State has never maintained that the witness was not involved in the crime for purposes of trying a defendant, while at the same time threatening to prosecute the witness for the same offense pursuant to a deferred prosecution agreement. See, e.g., Duncan, 247 Mont. 232, 805 P.2d 1387; State v. Paulson (1991), 250 Mont. 32, 817 P.2d 1137; State v. Nordahl (1984), 208 Mont. 513, 679 P.2d 241; State v. Harmon (1959), 135 Mont. 227, 340 P.2d 128. In fact, in Paulson, in which we considered whether § 46-16-213, MCA, applied to require corroborating testimony, we reasoned that one who is chargeable with the same crime as a defendant is an accomplice. Paulson, 250 Mont. at 37-38, 817 P.2d at 1140. In that case, we considered the status of two witnesses and concluded that § 46-16-213, MCA, did not apply because “[n]either [witness] were [sic] chargeable with the crimes for which [defendant] was convicted.” Paulson, 250 Mont. at 38, 817 P.2d at 1140. Here, Sunshine was not only chargeable with criminal mischief, but was also charged and arrested for the crime. Moreover, the State did not dismiss those charges prior to trial. We find these distinctions critical.

Therefore, we conclude that the threat of continued prosecution of Sunshine for the same crime Johnson was charged with and tried for was an admission by the State that she was an accomplice to the crime. To procure her testimony by such a threat and then argue to the Johnson jury that there is no basis for finding that she was accountable for the crime was the kind of duplicitous conduct by an officer of the court that cannot be sanctioned by the law.

This conclusion is consistent with decisions from other states which consider one who can be charged with the same offense as the defendant an accomplice or which consider a witness indicted for the same crime an accomplice as a matter of law. See, e.g., Ramirez-Garza v. State (Nev. 1992), 832 P.2d 392, 392-93; People v. Fauber (Cal. 1992), 831 P.2d 249, 272-73; State v. Shelley (Or. Ct. App. 1991), 821 P.2d 1111, 1113; Spears v. State (Okla. Crim. App. 1995), 900 P.2d 431, 440; Ex Parte Zepeda (Tex. Crim. App. 1991), 819 S.W.2d 874, 876; Clinton v. Commonwealth (Va. 1963), 130 S.E.2d 437, 443; State v. Bailey (N.C. 1961), 119 S.E.2d 165.

Based on the foregoing analysis, we reverse the District Court’s denial of Johnson’s motion for a directed verdict and reverse Johnson’s conviction for felony criminal mischief.

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


author: JUSTICE ERDMANN

text:
    IN RE MARRIAGE OF DAVID F. STUFFT, Petitioner and Appellant, and MAYLA S. STUFFT, Respondent and Respondent.
    No. 95-338.
    Submitted on Briefs March 28, 1996.
    Decided May 14, 1996.
    53 St.Rep. 467.
    916 P.2d 767.
    276 Mont. 454.

      For Appellant: Don A. LaBar, Church, Harris, Johnson & Williams, Great Falls; David F. Stufft, Attorney at Law, Cut Bank.
    For Respondent: C. W. Leaphart, Jr., The Leaphart Law Firm, Helena.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

This is an appeal from a decision of the Eighth Judicial District Court, Cascade County, in its award of child support and maintenance in favor of Mayla Stufft and its division of the marital estate. We affirm in part, reverse in part, and remand for further findings consistent with this opinion.

We restate the issues as follows:

1. Did the District Court err in adopting the proposed findings of fact and conclusions of law of one party practically verbatim?

2. Did the District Court err in its award of child support?

3. Did the District Court err in its distribution of the marital estate?

4. Did the District Court err in awarding maintenance to Mayla?

FACTS

David and Mayla Stufft were married in 1971. Three children were bom of the marriage and at the time of the appeal they were 21, 15, and 13 years of age. In 1977 David graduated from law school and the family moved to Cut Bank. David has a law practice and up until the time of the divorce worked as a part-time manager on his family-farm (Stufft Farm). Mayla worked as a teacher in the Cut Bank school system from 1978 to 1993 except for six years when she took time off to be with the children.

Mayla and the two minor children moved to Fresno, California, in August 1993. She is seeking employment in the Fresno school system. David remains in Cut Bank. David and Mayla agreed to share custody of the minor children with Mayla having primary physical custody and David having reasonable rights of visitation.

The District Court valued the assets and distributed them in such a manner that both parties received approximately $185,000 with Mayla receiving the family home. David was assigned a large portion of the debt, although the $70,000 mortgage was ordered to be paid from the sale of the family home. The court awarded $739 per month per child as child support for the two minor children. The court also awarded $2,000 per month as maintenance to Mayla for a period of two years or until she becomes employed by the school system, whichever occurs first. From the court’s value and division of marital property and its award of child support and maintenance, David appeals.

ISSUE 1

Did the District Court err in adopting the proposed findings of fact and conclusions of law of one party practically verbatim?

David contends that it was inappropriate for the court to have adopted Mayla’s proposed findings and conclusions verbatim. We have held that adoption of a party’s proposed findings and conclusions is not in itself grounds for reversal. In re Marriage of Purdy (1988), 234 Mont. 502, 764 P.2d 857.

[I]t is not error for a court to adopt a party’s proposed findings and conclusions if they are sufficiently comprehensive and pertinent to the issues to provide a basis for the decision and are supported by the evidence.

Purdy, 764 P.2d at 858 (citing In re Marriage of Jacobson (1987), 228 Mont. 458, 743 P.2d 1025).

Proposed findings of fact and conclusions of law adopted by the district court are the court’s own findings and conclusions and shall be reviewed the same — for clear error of fact and correctness of law. See Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906; and Kreger v. Francis (1995), 271 Mont. 444, 447, 898 P.2d 672, 674. In this case, the court’s findings and conclusions were sufficiently comprehensive and pertinent to the issues and we will not reverse the court’s decision on that basis so long as the evidence and the law supports those findings and conclusions.

ISSUE 2

Did the District Court err in its award of child support?

The District Court ordered David to pay Mayla the sum of $739 per month per child for the care, support, and maintenance of the parties’ minor children. We review a district court’s award of child support to determine whether the district court abused its discretion. In re Marriage of Craib (1994), 266 Mont. 483, 490, 880 P.2d 1379, 1384. We have said, “a district court must apply its discretion in a realistic manner, taking into account the actual situation of the parties.” In re Marriage of Noel (1994), 265 Mont. 249, 252, 875 P.2d 358, 359.

In calculating child support payments, § 40-4-204(3)(a), MCA, provides that:

Whenever a court issues or modifies an order concerning child support, the court shall determine the child support obligation by applying the standards in this section and the uniform child support guidelines .... The guidelines must be used in all cases .... The amount determined under the guidelines is presumed to be an adequate and reasonable support award, unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or is inappropriate in that particular case.

Both parties submitted financial affidavits purporting their incomes, assets, and expenses. David also submitted a child support determination worksheet by which he calculated what he considered to be appropriate child support figures. According to his calculations, David’s support obligation was a negative amount (-$276 per child) while Mayla was obligated to contribute $221 per child. Mayla did not submit a child support determination worksheet but asserts that in utilizing the child support guidelines David is obligated to pay support in the amount of $739 per child.

In the District Court’s findings and conclusions, it stated that it considered and complied with the Social and Rehabilitative Services Guidelines in arriving at its child support award of $739 per child per month. A district court, however, is required to make specific findings in writing as to how it calculated its award of child support under the guidelines and any deviation therefrom. In re Marriage of Brandon (1995), 271 Mont. 149, 152, 894 P.2d 951, 953. In this instance, the court did not identify the specifics of its calculation but merely alluded to the use of the guidelines. In fact, the record is unclear as to how the District Court either complied with or deviated from the child support guidelines.

Working backwards on the child support determination worksheet, David argues he would have to earn $126,000 per year to be obligated for support payments of $739 per child per month. In any event, there is insufficient evidence to support the court’s award of child support given that the court has provided no means to evaluate and compare its calculations with those required under the guidelines. We therefore conclude the District Court abused its discretion in its award of child support and we remand this issue to the District Court for its calculation of child support pursuant to the Montana Child Support Guidelines.

ISSUE 3

Did the District Court err in its distribution of the marital estate?

We review the findings underlying a district court’s division of marital property to determine if the findings are clearly erroneous. In re Marriage of Rock (1993), 257 Mont. 476, 479-80, 850 P.2d 296, 298. We determine a finding is clearly erroneous by using the three-part test set forth in Interstate Production Credit Association v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. TheDeSaye test requires a review of the record to determine whether the findings are supported by substantial evidence; to determine whether the district court misapprehended the evidence; and finally, to determine whether a review of the record leaves this Court with a firm conviction that a mistake has been made. The court’s distribution of marital property is a discretionary judgment which is “presumed to be correct and will not be disturbed on appeal absent an abuse of discretion.” Marriage of Rock, 850 P.2d at 298.

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

[T]he court ... shall ... finally equitably apportion between the parties the property and assets belonging to either or both .... The court shall also consider the contribution or dissipation of value of the respective estates and the contribution of a spouse as a homemaker or to the family emit.

The District Court distributed $184,000 in assets to David and $185,000 in assets to Mayla. As part of this distribution, David received the assets of the Stufft Law Firm which the court valued at $75,000, and 20 shares of Stufft Farm stock valued at $20,000. Mayla received the family home with a value of $128,200. The court assigned $5,467 in debt to Mayla and $182,000 in debt to David.

David contends that the assets he received were overvalued and as a result the court’s distribution was inequitable. David claims the market value of his law firm was actually $6,500, the value of the equipment given the fact that accounts receivable equaled accounts payable. Mayla asserts that the law business had value, not only by virtue of the purchase price, but also from the testimony of Mayla’s expert witness relative to the good will of the law firm and its average annual reported revenue. However, the purchase price to which Mayla refers is the amount David and a former partner, Moore, borrowed to purchase a third partner’s (Frisbee) interest in the law firm of Frisbee and Moore. In 1991 David left that practice and received $12,000 in cash for the equity in the building, some of the equipment, and the law library. Both he and Moore retained their individual accounts.

As a result of this sequence of events, the price paid for Frisbee’s interest does not necessarily represent the market value of the Stufft Law Firm. Neither is there evidence to support the court’s finding that David’s average net taxable income from the law business is $35,000. Mayla’s own exhibits provide that David’s net law income for the last three, five, and seven years averaged less than $35,000. Thus, while the value of the law firm may be over and above the value of its office equipment, there is no evidence in the record to support the $75,000 assessment by the court. We therefore conclude that the court erred in valuing the Stufft Law Firm and we remand this issue to the District Court for further findings in support of a determined market value for the Stufft Law Firm.

As for the Stufft Farm stock, David claims the value of the stock is actually $64 per share and the value of his total shares is $1,280. Mayla concedes that the value of the Stufft Farm stock is in question. Accordingly, we remand this issue back to the District Court for further findings to support a valuation of the Stufft Farm stock.

Finally, David contends that the court’s assignment of debt was inequitable. David maintains that the court unfairly distributed the house to Mayla while assigning the mortgage on the house to him. The court, however, ordered that David “continue paying the debt on the family home until such time as it is sold. The remaining original debt for the home shall be paid out of the sale of the home at the time of closing.” Assuming the house is up for sale in light of the fact that Mayla has moved from Montana, the court’s distribution to Mayla was actually the value of the home minus the first mortgage and David was not unduly burdened with that debt.

Nevertheless, David contends he was still assigned a majority of the debt and the District Court’s assignment remains inequitable. “As with the division of property, the District Court is given wide discretion in the division of debts.” In re Marriage of Staudt (1985), 216 Mont. 196, 201, 700 P.2d 175, 178. We have reviewed the court’s assignment of debt and note that the debt assigned to David is either personal to him or to his business. David took out a second mortgage on the family home and incurred further debt to purchase a practice and office building from which he alleges he received $12,000 that he then invested in his current practice. David’s current practice, Stufft Law Firm, is an asset of David and we have said that the debts of a business are the responsibility of whomever has the interest in that business. See In re Marriage of Childers (1985), 216 Mont. 125, 127, 700 P.2d 594, 595. Accordingly, there is sufficient evidence to support the court’s distribution of debt and that evidence has not been misapprehended nor do we have any conviction that a mistake has been made. We therefore conclude the District Court did not abuse its discretion in assigning the majority of the debt to David. However, we direct the District Court to reconsider its equitable distribution of the assets and debts of the marital estate given that we have remanded to the court its determination of value for the Stufft Law Firm and the Stufft Farm stock.

ISSUE 4

Did the District Court err in awarding maintenance to Mayla?

The District Court ordered David to pay maintenance of $2,000 per month to Mayla “for twenty-four months or until she becomes employed by the school system whichever occurs first.” We review a district court’s award of maintenance to determine if the findings of fact are clearly erroneous. In re Marriage of Eschenbacher (1992), 253 Mont. 139, 142, 831 P.2d 1353, 1355. As stated in Issue 3, we use the three-part test set forth in DeSaye, 820 P.2d at 1287, to determine if the court’s findings are clearly erroneous.

Maintenance is provided for in § 40-4-203, MCA, whereby the court may grant a maintenance order for either spouse only if it finds that the spouse seeking maintenance:
(a) lacks sufficient property to provide for his reasonable needs; and
(b) is unable to support himself through appropriate employment ....
(2) The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, and after considering all relevant facts including:
(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
....
(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those ofthe spouse seeking maintenance.

David claims his monthly expenses exceed his monthly revenue and therefore he is not capable of paying $2,000 per month in maintenance. Mayla disputes David’s purported income and debt while the court concluded that he received $50,000 as farm manager and $35,000 in his law practice. As stated in Issue 3, there is no evidence to support the court’s finding of income relating to David’s legal practice and as a result the value of David’s law practice is in question. Furthermore, David claims that he resigned from his position as farm manager, thus depleting his past income. If a past employment position remains available, we have said that a court may impute that income to a party in a divorce proceeding. In re Marriage of Chiovaro (1991), 247 Mont. 185, 189, 805 P.2d 575, 577. Nonetheless, there is no evidence in the record as to whether the farm manager position was available to David at the time of the dissolution.

While Mayla presented evidence of need until such time as she becomes employed, the court’s award of maintenance is not consistent with evidence of David’s financial resources. In addition, the court’s award for child support which has been remanded should be considered in an award of maintenance. Section 40-4-203(2)(a), MCA. We therefore remand the issue of maintenance to the District Court for reconsideration with regard to its findings for child support and David’s available income.

We affirm in part, reverse in part, and remand to the District Court for further findings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and TRIEWEILER, and DISTRICT COURT JUDGE MIZNER sitting for JUSTICE GRAY, DISTRICT COURT JUDGE WHELAN sitting for JUSTICE LEAPHART and DISTRICT COURT JUDGE SHERLOCK sitting for JUSTICE NELSON concur.