State v. Goltz

No. 81-267

I N THE SUPREME COURT O THE STATE O M N A A
F F OTN

1982

THE STATE OF MONTANA,

P l a i n t i f f and R e s p o n d e n t ,

VS .
ELAINE GOLTZ ,

D e f e n d a n t and A p p e l l a n t .

Appeal from: D i s t r i c t Court of t h e Eighth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f C a s c a d e
H o n o r a b l e J o e l G. Roth, J u d g e p r e s i d i n g .

C o u n s e l o f Record:

For Appellant:

Mark Bauer a r g u e d , G r e a t F a l l s , Montana

F o r Respondent:

Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
J. F r e d Bourdeau, County A t t o r n e y , G r e a t F a l l s , Montana
C a r r o l l B l e n d , Deputy County A t t o r n e y , a r g u e d , G r e a t F a l l s ,
Montana

Submitted: J a n u a r y 1 2 , 1982

Decided :
mi *
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.

Defendant appeals from a conviction of felony theft
following jury trial in the Eighth Judicial District Court,
Cascade County. We affirm the District Court.
Defendant presents the following issues for review:
(1) Whether the District Court erred in denying defendznt's

motion to dismiss based upon an eighteen month pre-indictment
delay.
(2) Whether the District Court erroneously allowed
into evidence certain "uncorroborated admissions" by defendant.
(3) Whether the District Court erroneously instructed
the jury in such a way as to shift the burden of proof to
defendant.
(4) Whether the District Court erred in denying defendant's
motion for a directed verdict of acquittal for failure of
the State to prove its case beyond a reasonable doubt.
Defendant managed the Don Plaza Motel in Great Falls

from July 1978 through January 1979. She was paid $800.00
per month or 16% of the take, whichever was more, and she
had free use of an apartment in the motel. Early in her
employment, her employer advanced defendant $3,200 so that
she could pay certain pressing debts. Defendant's husband,

a construction worker, was temporarily laid off in November.
Defendant's daily duties included registering guests,

preparing individual registration cards, and keeping a log
of charges accrued, expenditures made and motel receipts
(cash, checks, and credit card charge slips). Approximately
once a week defendant transferred the daily records and
receipts to the bookkeeper, a local high school student, who

prepared bank deposit slips, deposited receipts in the Don
Plaza bank account, and reconciled motel records and the
motel bank account. The bookkeeper made seven deposits to
the Don Plaza account in October.
Defendant offered to and did take over the bookkeeping
during the bookkeeper's vacation in November. Bank records
show only one deposit in November, on the 13th, covering
receipts up to November 6 , 1978. The next deposit, covering
receipts after November 27, 1978, was made by the regular
bookkeeper on December 5, 1978. There are no deposits for
the period from November 7 through November 26, although an
audit of the motel's books revealed over $5,000 in receipts
for that period.
The discrepancy between motel receipts and bank deposits
was not discovered until January, 1979, when the employers
were notified that the Don Plaza bank account was overdrawn.
An investigation revealed that defendant had filled out
three bank deposit record slips, and turned them over to the
bookkeeper, unaccompanied by bank receipts. She told the
bookkeeper she had misplaced the bank receipts, but later
admitted that she had never made the deposits, but had only
prepared phony deposit slips. When defendant's employers
confronted her in January about the overdraft, she told them
she had deposited the money in her checking account. She
wrote her employers two checks upon her account to cover the
missing receipts; both checks were returned for insufficient

funds.
Defendant has consistently maintained that one of the
bags containing receipts was taken from her office, and the
network of lies was intended only to protect her job until
she could obtain money from her father to cover the loss.
Her father never covered the loss, and he did not testify at
trial.
 In March of 1979, the County Attorney received the
evidence upon which he based the subsequent prosecution. A
delay of eighteen months followed, during which time the
State was attempting to audit the motel books, track down
travelers' checks, and investigate by mail. Defendant was
charged with felony theft, by information on September 15,
1980, and arrested on October 23, 1980. Defendant's motion

to dismiss for delay in prosecution was denied, and trial
commenced on January 23, 1981. From a jury verdict of

guilty, defendant appeals to this Court.
I.
Defendant argues that she was denied her right to a
speedy trial by the eighteen month pre-indictment delay.

She relies upon Barker v. Wingo (1972), 407 U.S. 514, 92
S.Ct. 2182, 33 L.Ed.2d 101, and its numerous progeny in
Montana; State v. Larson (1981), Mont. , 623 P.2d
954, 38 St.Rep. 213; State v. Cassidy (1978), 176 Mont. 385,
578 P.2d 735; State v. Keller (1976), 170 Mont. 372, 553

P.2d 1013, to name a few. Defendant also argues that prosecutorial
delay may justify reversal on a due process basis, as having
prejudiced defendant's right to a fair trial. She relies
upon United States v. Marion (1971), 404 U.S. 307, 92 S.Ct.

455, 30 L.Ed.2d 468; United States v. Lovasco (1977), 431
U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752; and State v. Burtchett

(1974), 165 Mont. 280, 530 P.2d 471.
Defendant's reliance upon the line of speedy trial
cases arising under the Sixth Amendment is misplaced.
Marion and Lovasco both clearly indicate that speedy trial
guarantees do not extend to the period prior to formal
accusation or arrest.
 "In United States v. Marion, 404 U.S. 307, 92
S.Ct. 455, 30 L.~dT2d 468 (1971). this Court
considered the significance, for'constitution-
al purposes, of a lengthy preindictment delay.
We held that as far as the Speedy Trial Clause
of the Sixth Amendment is concerned, such de-
lay is wholly irrelevant, since our analysis
of the language, history, and purposes of the
Clause persuaded us that only 'a formal indict-
ment or information or else the actual restraints
imposed by arrest and holding to answer a crim-
inal charge ... engage the particular protec-
tions' of that provision. Id., at 320, 92 S.Ct.
at 463. We went on to notethat statutes of
limitations, which provide predictable, legis-
latively enacted limits on prosecutorial delay,
provide '"the primary guarantee, against bring-
ing overly stale criminal charges."' Id, at 322,
92 S.Ct. at 464, quoting United ~ t a t e s v .Ewell,
383 U.S. 116, 122, 86 S.Ct. 773, 777, 1 5 L.Ed.
2d 627 (1966)." United States v. Lovasco, 431
U.S. at 788-789, 97 S.Ct. at 2048, 52 L.Ed.2d
at 758.

Cf. United States v. Mills (9th Cir. 1981), 641 F.2d 785, 787;
State v. Larson, Mont. at , 623 P.2d at 957-

Both Marion and Lovasco, however, indicate that the
statute of limitations is not a defendant's only protection
against pre-indictment delay.
.
". .[T]he Due Process Clause has a limited
role to play in protecting against oppressive
delay." United States v. Lovasco, 431 U.S.
at 789, 97 S.Ct. at 2048, 52 L.Ed.2d at 758.

".. .[T]he Due Process Clause of the Fifth
Amendment [and, here, the Fourteenth Amend-
ment] would require dismissal of the indict-
ment if it were shown at trial that the pre-
indictment delay in this case caused substan-
tial prejudice to [defendant's] rights to a
fair trial and that the delay was an inten-
tional device to gain tactical advantage
over the accused." United States v. Marion,
404 U.S. at 324, 92 S.Ct. at 465, 30 L.Ed.2d
at 481.
Cf. United States v. Cederquist (9th Cir. 1981), 641 F.2d
1347, 1351; United States v. Mills, 641 F.2d at 788; United
States v. Krasn (9th Cir. 1980), 614 F.2d 1229, 1235; United
States v. West (9th Cir. 1979), 607 F.2d 300, 304-305.
 Those Ninth Circuit decisions addressing pre-indictment
delay, subsequent to Marion and Lovasco, have established
that the burden of proof is on the defendant and the prejudice
alleged cannot be merely speculative. In West, the Ninth
Circuit Court of ~ p p e a l sstated:

"The crucial element in the due process test
established by Mays [United States v. Mays (9th
Cir. 1977), 549 F.2d 6701 is the finding of
actual prejudice to the defendants. Satisfac-
tion of this element is a prerequisite to find-
ing a due process violation. United States v.
Titus, 576 F.2d 210, 211 (9th Cir. 1978) [cert.
denied, 439 U.S. 860, 99 S.Ct. 180, 58 L.Ed.2d
1691; Arnold v. McCarthy, 566 F.2d 1377, 1382
(9th Cir. 1978). If the prejudice is allegedly
due to the loss of a witness, the defendant
'must show not only the loss of the witness
and/or evidence but also [must] demonstrate
how that loss is prejudicial to him.' United
- -
States v. Mays, supra at 677. Such proof must
be definite and not speculative and '[tlhe
assertion that a missing witness might have
been useful does not show the "actual pre-
judice" required by Marion.' Id at 677 . .
." United States v. West, 6073.2d at 304.
This Court addressed the matter of pre-indictment delay
in State v. Burtchett, supra, and added a wrinkle to the
standards established in Marion, and later in the federal
courts.

". . .[Tlhere is no question but that a delay
in time between the commission of an offense
and the commencement of the prosecution, by
the filing of an information, termed 'prein-
dictment delay' can be the denial of due
process. [citing Marion.] Mere delay, in
and of itself, is not sufficient. There must
be either actual prejudice - - conduct of
- to the
the defens-that _ _ _ _ _State intentional%
the _ _
--
delayed to gain some tactical advantage over
appellant, - - harass him. United States v.
or to
Marion, supra." State v. Burtchett, 165
Mont. at 283, 530 P.2d at 473. (Emphasis
added. )
Defendant now argues that the "either/orU language in
Burtchett clearly indicates that this Court intended that a

due process violation could be found without defendant's
having to prove both improper intent and actual prejudice.
The State argues that the Burtchett language was a mere
"lapsus linguae," and this Court should now rule that both
improper intent and actual prejudice must be found.

We find that defendant neither asserted and proved the
State's improper intent nor proved actual prejudice resulting
from the delay; therefore, the difference between the Burtchett
standard and the Marion standard is not determinative here.
Defendant claims that because of the pre-indictment
delay, she lost the testimony of one "key witness for the
defense" and a number of unnamed Don Plaza employees who
might have indicated the guilt of someone other than defendant.
Defendant has failed to indicate the nature of the lost
testimony and how it might be exculpatory. Such speculation
is insufficient to establish actual prejudice. See United
States v. West, 607 F.2d at 304-305; United States v. Mays,
549 F.2d at 677. Defendant claims the record shows that
witnesses for the State were unable to remember certain
details such as the exact dates of vacations or which employer
confronted the defendant first. Defendant, again, has made
no effort to show how those particular memory lapses impaired
her defense. Indeed, the facts themselves were not disputed.
Defendant never claimed that she - deposited the motel
had
receipts or that she did not make out phony bank receipts,

that she did not falsely tell her employers she had deposited
the receipts in her own account, or that she had not written

bad checks to "repay" her employers. Defendant erroneously
concludes that proof of some failure of memory is automatically
proof of prejudice. In United States v. Mills, 641 F.2d at
789, the Ninth Circuit Court of Appeals stated:
 "Nor does the claim that the witnesses1
memories have dimmed without proof of
impairment constitute actual prejudice.
United States v. Rogers, 639 F.2d 438
(8th Cir. 19817; Mays, supra."
There is no evidence that defendant's position was in
any way impaired by failure of the State's witnesses to
recall certain details.
Defendant mentions only one specific instance of her
own memory failure from which some prejudice may flow. She
claimed, during cross-examination, that she had never been
paid more than $800.00 per month at the Don Plaza. The
State produced a cancelled check to defendant for over
$900.00. Defendant claims she forgot that paycheck in the
two years between the offense and trial, and that being
contradicted before the jury severely damaged her credibility.
We do not find this single instance sufficient to mandate
reversal of conviction. The contradiction was on a minor
point not directly related to those actions of defendant
which led to her conviction.
Finally, in United States v. Lovasco, 431 U.S. at 795-
796, 97 S.Ct. at 2051, 52 L.Ed.2d at 762-763, the United
States Supreme Court stated:
"In our view, investigative delay is funda-
mentally unlike delay undertaken by the Gov-
ernment solely 'to gain tactical advantage
over the accused,' United States v. Marion,
404 U.S., at 324, 92 S.Ct., at 465, precise-
ly because investigative delay is not so one-
sided. Rather than deviating from elementary
standards of 'fair play and decency,' a pros-
ecutor abides by them if he refuses to seek
indictments until he is completely satisfied
that he should prosecute and will be able
promptly to establish guilt beyond a reason-
able doubt. Penalizing prosecutors who defer
action for these reasons would subordinate
the goal of 'orderly expedition' to that of
'mere speed,' Smith v. United States, 360
U.S. 1, 10, 79 S.Ct.-991, 997, 3 L.Ed.2d
1041 (1959). This the Due Process Clause
does not require. We therefore --- to
- hold that
 prosecute a defendant following investigative
2does-not deprive - - - process,
dela - - him of due
- -if his defense might have been somewhat
even - ---
prejudiced - - lapse - -
by the of time." (Emphasis
added. )
There is ample evidence that the delay in this case resulted
from continuing investigation by the State, e.g., its attempt
to track down credit card charge slips and travelers checks.
There was no error in the District Court's denial of defendant's
motion to dismiss due to delay.

Defendant maintains that the District Court erred by
allowing into evidence her employersf testimony that defendant
had falsely assured them the money had been deposited for
them into defendant's personal checking account. Defendant
concedes she has no hearsay objection, but argues that the
statements to her employers were inadmissible because they
were "uncorroborated admissions" and could never be corroborated
because they were untrue.
We do not accept defendant's rather ingenious argument,
for the simple reason that her statements were not admissions.
They were "false exculpatory statements," which are admissible.
"False exculpatory statements by a party may
be used not only to impeach, but also to prove
consciousness of guilt and unlawful intent.
Williamson v. United States, 310 F.2d 192, 199
(9th Cir. 1962). - DeVore v. United States,
See
368 F.2d 396, 397 (9th Cir. 1966); 2 Wigmore
on Evidence S278 (2) (3rd ed. 1940) [supp.
19811." United States v. Pistante (9th Cir.
1971), 453 F. 2d 412, 413.
Cf. Burden Young v. United States (9th Cir. 1966), 358 F.2d
429, 431, wherein the Circuit Court of Appeals held, that
admission into evidence of false exculpatory statements made
by defendant to an F.B.I. agent was not error "whatever
ground may have been relied on by the court."
 An "admission" is defined as "an avowal or acknowledgement
of a fact or of circumstances from which, together with
other facts, guilt may be inferred." 22 C.J.S. Criminal Law
§730(a). Ordinarily it is not the fact of the avowal but
its substance, i.e., that some act was in fact done, which
allows an inference of guilt. Here, it is not the substance
of the avowal, but the fact that the avowal was false that
allows an inference of guilt.
We hold that the statements in question were not admissions,
but false exculpatory statements, and, as such, were properly
admitted by the trial court.

Defendant argues that the trial court erred in its
instructions to the jury. The trial court instructed the
jury that:
"Purpose or knowledge are manifested by the
circumstances connected with the offense.
Purpose or knowledge need not be proved by
direct evidence, but may be inferred from
acts, conduct and circumstances appearing
in evidence." (Other instructions indica-
ted that an omission could constitute an
act.)
Defendant objected to the instruction as being "very close
to a Sandstrom type of instruction." (Sandstrom v. Montana
(1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39.) The
trial court refused defendant's proposed instruction that it
is not the act alone, but the criminal intention together
with the act, that makes the actor guilty. Defendant did
not offer an instruction defining "inference," nor did she
suggest that such an instruction be given. Defendant now

argues that, without such an instruction, the effect of the
instructions, taken as a whole, was to "shift the burden to
the defendant to show that her failure to deposit the funds
of the Don Plaza Motel was not coupled with the purpose to
deprive the owners of those funds." Such a shift of burden
runs afoul of Sandstrom, according to defendant.
We disagree. In the first place, defendant cannot on
appeal hold the State or the trial court responsible for
their failure to include an instruction defining "inference,"
when she herself did not offer or request such an instruction.
". . . [I]£ defendant felt further instruc-
tions, including more specific instructions
were necessary, it was incumbent upon him
to request more specific instructions. No
such request appears in the record." State
v. Bretz (1979), Mont . , 605 P. 2d
974, 998, 36 St.Rep. 1037, 1067, cert.
denied, 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed.
2d 425.
Furthermore, the jury was adequately instructed that the
State must prove each element of the offense charged. The
instructions separated the several elements of the offense
and clearly indicated that the State must prove "beyond a
reasonable doubt to a moral certainty" that (1) defendant's
purpose was to deprive the owners of their property, and (2)
defendant purposely or knowingly obtained or exerted unauthorized
control over the cash, checks and credit card charge slips.
Finally, since the Sandstrom decision was reversed in the
United States Supreme Court in 1979, this Court has been
inundated by appeals attempting to equate "must presume"
with "may infer," and thus bring the instructions on permissive
inference as to intent within the Sandstrom ban. We have
indicated that no such equation will be accepted. In State
v. Bad Horse (1980), Mont. , 605 P.2d 1113, 1120,
37 St.Rep. 45, 54, this Court cited State v. Coleman (on
rehearing) (1979), Mont. , 605 P.2d 1000, 1054, 36
St.Rep. 2237, 2241:
 "The holding in Sandstrom is not to be constru-
ed to mean that whenever a trial court instructs
the jury that it may resort to inference to
determine subjective matters such as knowledge
or purpose, that thereby the State has been
relieved of its burden of proof. The United
States Supreme Court did not intend such limi-
tation, and we do not find any such intention
in the language of Sandstrom or its related
cases. The jury was not allowed to rest solely
upon the permitted inference in the Coleman
case, but under the instruction had to require
such an inference to meet the standard as-be-
yond a reasonable doubt."
The disputed instruction here was not mandatory; the
instructions as a whole adequately informed the jury. We
find no shift of the burden of proof to the defendant. No
error.
IV.

The fourth and final allegation of error raised by
defendant is that the trial court improperly denied her
motion for a directed verdict of acquittal. Defendant
argues that the State failed to eliminate the "reasonable
possibility" that someone else stole the receipts, and also
failed to prove that defendant exerted unauthorized control
over the receipts; therefore, no reasonable juror could find
all elements of the crime were proven beyond a reasonable
doubt.
This Court addressed the question of a directed verdict
of acquittal in State v. Smith (1980), Mont. , 609

"Section 46-16-403, MCA provides:
"'When, at the close of the State's evidence
or at the close of all the evidence, the evi-
dence is insufficient to support a finding or
verdict of guilty, the court may, on its own
motion or on the motion of the defendant,
dismiss the action and discharge the defen-
dant ... '
"The general rule in Montana appears to be
that a directed verdict of acquittal is ap-
propriate in criminal cases 'only where the
 State fails to prove its case and there is
no evidence upon which a jury could base
its verdict. ' State v. Yoss (1965), 146
Mont. 508, 409 P.2d 452, 455. 'The decision
whether to dismiss the charge or direct a
verdict of acquittal lies within the sound
discretion of the trial court and will be
disturbed on appeal only when abuse is
shown. State v. Just (1979), Mont., 602
P.2d 957, 965, 36 St.Rep. 1649."
And in State v. Pendergrass (1980)~ Mont. , 615
P.2d 201, 205, 37 St.Rep. 1370, 1375, we stated:
". .
. This Court remains ever mindful of
one fundamental rule -- that questions of
fact must be determined solely by the jury,
and that given a certain legal minimum of
evidence, this Court on review will not
substitute its judgment for that of the
jury. . .
State v. Merseal (1975), 167 Mont.
412, 415, 538 P.2d 1366, 1367-1368."
Pendergrass and Merseal also indicate that the test of
evidence sufficient to warrant a directed verdict of acquittal
is the same as the test of sufficiency of evidence on appeal,
i.e., whether, viewing the evidence in the light most favorable
to the State, substantial evidence exists to support a
verdict of guilty. The State presented evidence showing
that defendant handled both the motel receipts and the bank
records during the period for which receipts are missing;
that she prepared phony bank deposit records, and built a

framework of easily-discovered lies around her failure to
deposit the receipts; that she had a history of indebtedness;
that her husband was unemployed in November of 1978. Both
motive and opportunity were established by the evidence;
together with the evidence of defendant's evasive behavior,
there was more than adequate support for a guilty verdict.
Af firmed.

Justice