State v. Shaver

NO. 88-73

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

1988

STATE OF MONTANA,

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

ELDON CLARENCE SHAVER, SR.,

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

APPEAL FROM: District Court of t h e Nineteenth J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f L i n c o l n ,
The H o n o r a b l e R o b e r t H o l t e r , J u d g e p r e s i d i n g .

COUNSEL O F RECORD:

For Appellant:

Donald L . S h a f f e r , L i b b y , Montana

For 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
George Schunk, A s s t . A t t y . G e n e r a l , H e l e n a
S u s a n Loehn, County A t t o r n e y , L i b b y , Montana
S c o t t S p e n c e r , Deputy County A t t o r n e y , L i b b y

S u b m i t t e d on B r i e f s : July 21, 1988

Decided: August 2 5 , 1988

Filed:
'AU6 2 5 1908
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.

This is an appeal from the Nineteenth Judicial District
Court, Lincoln County, Montana. Defendant/appellant Eldon
Clarence Shaver, Sr. (Shaver) was found guilty by a jury on
December 4, 1 9 8 7 on two counts of deviate sexual conduct
pursuant to S 45-5-505, MCA. Shaver was sentenced to two
eight-year terms at the Montana State Prison to be served
consecutively, with all but sixty days suspended. As a
condition of probation, Shaver was to direct his employer to
deduct $ 1 8 5 per month from his paycheck for each of the two
victims to be used to pay child support. From this verdict
and sentencing Shaver appeals. We affirm.
Shaver presents four issues for review:
1. Did the District Court err in denying Shaver's
motion to suppress an oral confession because he did not
knowingly, voluntarily and intelligently waive his
constitutional rights?
2. Was Shaver substantially prejudiced and denied his
Sixth Amendment right to present an effective defense when
the District Court denied his motion to continue when a
testifying witness/victim changed the time of the charged
offense?
3. Was Shaver denied his due process right to a fair
trial because of the District Court's bias against his
attorney?
4. Did the District Court violate Shaver's
constitutional right to procedural due process at the
sentencing hearing by imposing a child support order without
proper notice and allowing Shaver an opportunity to be heard
on the issue?
 Shaver maintained residence in Troy, Montana, from 1984
through June, 1986. Included in the family were his wife
Della, his two natural sons from a prior marriage, F. S. and
E.C. S., a stepson, and a daughter from his current marriage
with Della. E.C.S. left Troy on June 12, 1986 to live with
his natural mother and F.S. left sometime in 1986 to live
with relatives in Oregon.
F.S., age twelve, and E.C.S., age fourteen, Shaver's
natural sons, made a report to the Yamhill County Sheriff's
office in McMinnville, Oregon, that Shaver had sexually
molested them. The Oregon authorities contacted Detective
Clint Gassett (Gassett) of the Lincoln County, Montana
Sheriff's office who obtained an arrest warrant.
Shaver was arrested July 28, 1987, on two counts of
deviate sexual conduct on the basis of investigative reports
from the Oregon authorities. Count I alleged Shaver engaged
in deviate sexual relations with F.S. at the end of October,
1984, Count I1 alleged Shaver engaged in deviate sexual
contact with E.C.S. on July 11, 1987. Later, on November 4,
1987, an amended information was filed stating the sexual
contact between Shaver and E.C.S. occurred on July 11, 1986.
F.S. originally said he had been molested sometime
during late October, 1984 or 1985. At trial, F.S. changed
the period of time of the molestation to sometime between
Thanksgiving and Christmas of 1984. E.C.S. told the
authorities that he had been molested a number of times
including the day before he left Montana to live with his
mother in McMinnville, Oregon.
Shaver was arrested by Gassett and reserve deputy Bill
Denton when he got off work at the local mine near Troy,
Montana. Shaver testified at trial that as the officers
passed his house en route to the Troy Police Department that
he requested they stop to allow him to ask his wife to call
an attorney. Shaver claims this request was ignored. The
arresting officers testified that no request was made.
Once at the Police Department, Shaver was read his
rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436,
86 S.Ct. 1602, 16 L.Ed.2d 694. These rights were read by
Gassett from a waiver form. Gassett testified as follows:
"I read him his rights off a form that we use at the
Sheriff's Department. I asked if he understood that. I gave
him the form and asked him to read it over and sign it if he
wished to talk to me." Gassett asked Shaver if he understood
the rights to which Shaver responded affirmatively. Shaver
signed the form. Approximately twenty-five minutes after the
questioning began, Shaver admitted to having sexual contact
with his sons. Gassett then spent approximately fifteen
minutes taping the confession.
Shaver later recanted his admission along with his
waiver of constitutional rights. Shaver stated that he could
neither read nor understand the Miranda form and had only
"lied" to the officers so that he could maintain his family.
A motion to suppress Shaver's admission was first
mentioned at an omnibus hearing held September 14, 1987. The
motion was filed October 22, 1987, and stated as grounds that
Shaver had been awake "continuously for over 20 hours, and
that he had requested permission to call his wife to have her
seek counsel for him, and that request was denied.. ."
On November 4, 1987, the court held a hearing on the
motion to suppress and was presented with testimony of Craig
Montagne (Montagne), a psychologist for the local school
district. Montagne had tested Shaver and concluded Shaver
had an I.Q. between 71 and 75 which bordered on mental
retardation and that his reading comprehension level was
grade 3.9. The District Court denied the motion stating in
its findings of fact and conclusions of law filed November
25, 1987, that although Shaver was "no mental giant ... it
is clear from the record that he knew and understood what he
was doing, and he knew and understood his rights, which he
voluntarily waived."
On November 4, 1987, Shaver filed a Notice of Alibi,
pursuant to S 46-15-323(3), MCA, as to Count I1 of the
amended information that stated some sexual contact occurred
on June 11, 1986. Shaver claimed he worked that day.
Shaver's counsel asserts on appeal that the Notice of Alibi
encompassed the intention that Shaver would show that due to
his work schedule and the family's routine, he never would
have had the opportunity to commit the acts.
A jury trial was held December 3, 1987. F.S. changed
his testimony claiming that sexual contact occurred between
Thanksgiving and Christmas of 1984. Shaver claimed that he
had prepared an alibi for the dates of late-October, 1984,
which was consistent with F.S.'s testimony to the Oregon
authorities. Shaver's counsel moved for a continuance to
allow him to properly prepare the alibi defense but the
motion was denied by the District Court on grounds that the
specific time element was not a material element of the
offense of deviate sexual conduct.
Defense counsel attempted to have Della Shaver admitted
as a witness in Shaver's case-in-chief. The State objected
to Della's testimony as she was not properly listed on the
defense list of witnesses. Therefore, the District Court
cited defense counsel for contempt of discovery deadline
violations and imposed a fine. Nonetheless, Della was
allowed to testify.
Shaver moved for a mistrial when the jury returned a
guilty verdict on both counts. The motion was denied.
Shaver was sentenced to two consecutive eight year sentences
with all but sixty days suspended and was ordered to undergo
counseling in a sex offender program. The District Court
further took "notice of other proceedings" in regard to
Shaver's duty of child support and ordered as "a form of
restitution under Section 46-18-201, M.C.A." that Shaver be
required to pay $370 per month for the victims.
In his first issue, Shaver seeks a new trial claiming
the District Court erred in denying his motion to suppress
statements of confession made after his arrest. Section
46-13-301, MCA, governs motions to suppress confessions or
admissions:
(1) A defendant may move to suppress as
evidence any confession or admission
given by him on the ground that it was
not voluntary. The motion shall be in
writing and state facts showing wherein
the confession or admission was
involuntary.

(4) If the allegations of the motion
state facts which, if true, show that the
confession or admission was not
voluntarily made, the court shall conduct
a hearing into the merits of the motion.
The prosecution must prove by a
preponderance of the evidence that the
confession or admission was voluntary.
(5) The issue of the admissibility of
the confession or admission may not be
submitted to the jury. If the confession
or admission is determined to be
admissible, the circumstances surrounding
the making of the confession or admission
may be submitted to the jury as bearing
upon the credibility or the weight to be
given to the confession or admission.
This Court has previously noted that "[tlhe standard to be
applied in our review of this issue is whether there is
substantial credible evidence to support the District Court's
finding." State v. Gould (Mont. 1985), 704 ~ . 2 d20, 27-28,
42 St.Rep. 946, 953.
The District Court found that Shaver had voluntarily
waived his rights, including his right to an attorney, and
had confessed to deviate sexual contact with his two sons.
We must view the "totality of the circumstances" in our
determination of whether substantial credible evidence exists
to support the District Court's findings that Shaver
knowingly and intelligently waived his rights and confessed
to the crimes charged. Gould, 704 P.2d at 28; State v.
Rlakney (1982), 197 Mont. 131, 134, 641 P.2d 1045, 1047. The
"totality of the circumstances" includes "consideration of
'[Shaver's] demeanor, coherence, articulateness, his capacity
to make full use of his faculties, his memory and his overall
intelligence.'" Gould, 704 P.2d at 28 (citing United States
v. Hollis (D.Del. 1975), 387 F.Supp. 213, 220) ; Blakney, 641
P.2d at 1049.
Shaver claims that he was unable to knowingly and
intelligently waive his rights because he is mentally
incompetent. We addressed a similar issue in State v. Phelps
(Mont. 1985), 696 P.2d 447, 42 St.Rep. 305, wherein we
stated:
Mental illness or deficiency does not in
itself preclude admissibility of
defendant's statements so long as he was
capable of understanding the meaning and
consequences of his statements. It is an
important factor to consider in examining
the totality of the circumstances, but it
is not conclusive (Citations omitted. )

Phelps, 696 P.2d at 451. The circumstances of this case
indicate that Shaver was capable of understanding the true
meaning and consequences of his actions and that those
actions were made knowingly and intelligently. Shaver
conversed in a coherent and intelligent manner during his
relatively short forty-minute interrogation by Officer
Gassett on the night of his arrest. Shaver verbalized during
the taped portion of the interview that he had, in fact, been
read his Miranda rights, that he understood those rights, and
that his prior act of waiving those rights was done
voluntarily without coercion, threat, or promises of
leniency. Shaver proceeded to admit that he sexually
molested his sons and gave a specific detailed description of
each molestation. At the conclusion of the interview, Shaver
was again asked whether he had been coerced into his
confession to which he replied, "No sir. You've been really
nice. "
Coupled with Shaver's actions and demeanor the
afternoon of his arrest, the District Court was also
presented with the fact that Shaver, a thirty-five-year-old
gainfully employed husband and father, was able to
intelligently and coherently express himself at the
suppression hearing and at trial. The school psychologist
testified that Shaver's reading comprehension level was at
least a 3.5 grade level and was possibly as high as a 5.0
grade level. Viewing the circumstances in their totality, we
hold that there is substantial credible evidence showing
Shaver knowingly and intelligently waived his rights.
Accordingly, Shaver's confession was voluntary and admissible
pursuant to S 46-13-301, MCA.
Shaver also claims that his confession was involuntary
because he allegedly asked that he be allowed to stop at his
home while en route to the Troy Police Department so he could
have his wife call an attorney. Officer Gassett testified
that Shaver did not ask for an attorney until after the
interview. The District Court, as the trier of fact at the
suppression hearing, was presented with the conflicting
testimony of Shaver and Officer Gassett concerning the
alleged request for an attorney. As the trier of fact, the
District Court had to resolve the conflicting testimony.
Sections 26-1-202, and 26-1-203, MCA. The District Court
found that Shaver had not requested an attorney and had
voluntarily waived his rights. Using the standard of review
set forth above, there is substantial credible evidence to
support the District Court's conclusion that Shaver did not
request an attorney.
Shaver's second issue for review is based on the
argument that the District Court substantially prejudiced
Shaver when it would not grant a continuance after F.S.
changed the time sequence of the sexual contact from October
1984 to between Thanksgiving and Christmas of 1984. Shaver
bases this claim of prejudice on the fact that he had filed
an alibi defense, that the State failed in its statutory duty
to notify the defense that F.S.'s testimony would be
different from the allegations in the complaint, and that, in
light of the testimony, the two counts should have been
severed.
Generally, as Shaver appropriately points out, a filed
information should state the "time and place of the offense
as definitely as can be done." Section 46-11-401 (1) (c)(iv),
MCA. However, as Shaver also notes, we have held:
The law does not require that the time
and place be stated with impossible
precision; it merely requires that they
be stated as definitely as possible under
the circumstances of the case, unless
time is a "material ingredient in the
offense. "
State v. Clark (Mont. 1984), 682 P.2d 1339, 1344, 41 St.Rep.
833, 837; citing State v. Riley (1982), 199 Mont. 413, 422,
649 P.2d 1273, 1277.
 Shaver contends that since he raised an alibi defense
time is an essential element of the offense. Again, however,
Clark is instructive. In Clark, this Court looked to the
case of State v. Hall (1976), 171 Mont. 33, 554 ~ . 2 d755 in
regard to the argument that noticing an alibi defense thereby
confers materiality and makes time a necessary element of the
State's case.
Assertion of the alibi defense does not
change the nature of the crime charged
here. Defendant should have realized the
State would present evidence proving the
crime took place sometime ... Defendant
cannot restrict - state's case by
the
merely assertinq intent to rely on
an alibi defense for a limiGd period Of
time within which the crime could ha=
occurred. (Emphasis added.)
Clark, 682 P.2d at 1344, 41 St.Rep. at 838.
Additionally, this is a case of child abuse. Where
children are victims the court will not mandate a specific
period of time to be precisely stated in the information even
after an alibi defense is asserted. Even though F.S. is
older than the child involved in State v. D.R.S. ( ~ o n t .
1985), 700 P.2d 630, 42 St.Rep. 770, we still find that case
instructive.
We should recognize that children,
particularly four-year olds are not
governed by the clock and calendar as
adults are. They are generally at a loss
to apply times or dates to significant
events in their lives. "Children are
less likely to distinguish dates and time
with specificity." State v. Clark, 682
P.2d at 1344. The fact that the victim
cannot set a date for the crime should
not be fatal to the State's case, thus
making the defendant virtually immune
from prosecution.
D.B.S., 700 P.2d at 634.
We will not hold abused children to a standard
requiring them to comprehend and remember specific times and
dates. Defendant here was given a general time period in
which the offense occurred. That is all that is required in
these types of cases. See also State. v. Cornell (Mont.
1986), 715 P.2d 446, 43 St.Rep. 505.
A review of the alibi defense itself shows that the
District Court did not err in disallowing a motion to
continue. The court was understandably unimpressed by the
testimony presented in regard to the alibi defense.
The basis of the alibi was that due to the nature of
Shaver's work shift and his family's activities, he and the
victims would not have had the opportunity to be alone.
Witnesses called to buttress this argument stated differing
interpretations of the hourly records at the mining operation
where Shaver was employed. Therefore, these records
themselves were suspect. However, on closer inspection, it
is clear that Shaver was home a sufficient amount of time to
have the opportunity to commit the acts. Therefore, the
alibi defense was ineffective, even if the court had allowed
the motion to continue.
Shaver's claim that the State failed to inform him of
F.S.'s changed testimony is also unpersuasive. Although it
is undisputed that S 46-15-322, and § 46-15-327, MCA, require
the State to disclose all pertinent information it may gather
and the duty to disclose is continuing, the statutes have no
effect until the State actually develops the knowledge of a
specific act, fact, or information that exculpates the
defendant. Here, there is no evidence in the record that the
State discovered or knew that F.S. was going to vary his
claim of dates as to when the alleged acts occurred. Without
such knowledge, the State was not in violation.
 Finally, Shaver's claim of required severance is
inappropriately before this Court. Issues raised for the
first time on appeal will not be addressed. Sections
46-20-104 (2), 46-20-701 ( 2 ) , MCA. See State v. Lamb (19821,
198 Mont. 323, 646 P.2d 516, and Matter of B.L.O. (Mont.
1984), 689 P.2d 1246, 41 St.Rep. 2024.
In issue three, Shaver contends that the District
Court's bias against defense counsel constituted prejudicial.
bias toward Shaver preventing a fair and impartial trial.
Initially, Shaver contends he was deprived of "[a] fair trial
in a fair tribunal," the basic requirement of due process.
In re Murchison (1955), 349 U.S. 133, 136, 75 S.Ct. 623, 625,
99 L.Ed.2d 942, 946. This right, according to Shaver, allows
for the disqualification of biased decision-makers. However,
in this case, no attempt was ever made to disqualify the
District Court judge.
Shaver claims be was unable to make a motion to
disqualify the District Court judge because the motion had to
be filed not less than twenty days before the original date
of trial and "defense counsel was substituted in at a later
date so as to preclude an opportunity to move to disqualify"
the judge. Citing 5 3-1-802, MCA; State v. Harvey (Mont.
19861, 713 P.2d 517, 43 St.Rep. 46. The State appropriately
rebuts this contention since 5 3-1-802, MCA, has been
superseded by Supreme Court Order dated June 17, 1987,
amended July 29, 1987, and effective September 1, 1987. That
Supreme Court Order created a new disqualification for cause
statute, S 3-1-805, MCA, that requires filing an affidavit
for disqualification for cause more than thirty days before
the date of a hearing or trial.
According to the notice of substitution of counsel in
the record defense counsel was substituted by Shaver on
September 29, 1987. The first hearing date on the motion to
suppress was scheduled for November 4, 1987, and therefore,
counsel had five days in which to properly file for the
disqualification of the judge.
On its merits, Shaver's argument also fails. Shaver
admits that the trial court was within its statutory
authorized power to hold defense counsel in contempt for
failing to comply with the discovery order. Section
46-15-329, MCA. The trial transcript shows that any comments
made by the judge were done outside the presence of the jury.
The adverse rulings against the defense counsel are simply
proper compliance with the laws of this state. We find no
bias in the record sufficient to adversely affect Shaver's
right to a fair trial.
Finally, we hold there is no reversible error in the
sentencing requirements rendered by the District Court in
this case. Shaver's contention in Issue Four is that the
District Court violated his constitutional right to
procedural due process at the sentencing hearing when it
ordered him to pay child support for his two sons. Shaver
claims he was not given notice or opportunity to be heard on
this issue.
Under S 46-18-201(1)(a), MCA, the District Court has
authority to impose reasonable restrictions or conditions
including restitution (subsection (iv)), and "any other
reasonable conditions considered necessary for rehabilitation
... I' .
(subsection (x)) The statute further states " [t]he
sentencing judge may impose on the defendant any reasonable
restrictions or conditions during the period of suspended
sentence." Section 46-18-201 (1)(b), MCA.
The presentence investigation made the court aware of
Shaver's previous child support payment problems. Shaver's
criminal history showed that he had previously served two
five-day sentences on misdemeanor nonsupport charges in 1980
and 1981. Shaver admits that he was served with a copy of
the presentence investigation prior to the hearing. This
allowed him to prepare for the sentencing.
In State v. Nichols (Mont. 1986), 720 P.2d 1157, 1162,
43 St.Rep. 1068, 1074, this Court stated:
The statutes governing sentencing provide
ample notice of matters which may come
up. These, along with notice of the date
of hearing, the full disclosure of
presentencing information in open court;
the ability of the defendant to propound
evidence, to confront witnesses, and to
participate in the sentencing proceeding
provide a full panoply of due process
safeguards for the liberty interest
implicated. (Citations omitted.)
Nichols,
Here, no due process was violated. Shaver knew that
the child support violations were noted in the presentence
investigation and therefore should have known that it might
be considered by the court. The District Court's ord-er
stated in part:
8. The victims in this case are [E.C.S.]
and [F.S.], children of the Defendant and
persons for whom the Defendant owes the
duty of support. The Court takes notice
of other proceedings in this Court and of
Defendant' s obligations thereunder.
Defendant currently has income in the
$22,000.00 to $24,000.00 range and has
the ability to support these children,
who, as stated, are Defendant's victims.
The Court sets $185.00 per month, per
child, as the reasonable cost of their
support which amount is within
Defendant's ability to pay. The Court
notes Defendant has not paid all the
support due for these children in the
past and that they have been supported by
public welfare during a part of the time
Defendant was to Pay support.
Accordingly, the Defendant is ordered to
 direct his employer to deduct $185.00 per
month, per child, for a total of $370.00
per month from Defendant's pay, . . .

The Court considers this unique order,
and its rather unusual effect, to be a
form of restitution under Section
46-18-201, M.C.A. It is also a
rehabilitative provision to Defendant in
that it makes him responsible to pay some
minimal part of not only the care but any
counseling required by these children
because of Defendant's abuse of them.
This requirement ceases for each child
upon the attainment of age 18.

The District Court stated that the imposition of child
support payment was for rehabilitative and restitution
purposes. The State cites numerous cases that payment to
victims of a crime is appropriate as a means of restitution.
State v. Korussos (0r.Ct.App. 1986), 728 P.2d 559; State v.
Morgan (1982), 198 Mont. 391, 646 P.2d 1177; State v.
Sullivan (Or. 1976) , 544 P.2d 616; People v. Williams (Mich.
Ct.App. 1975), 225 N.W.2d 798. Even more applicable are the
cases that have held that child support obligations are a
legitimate condition to be considered as part of probation.
State v. Pettis (S.D. 1983), 333 N.W.2d 717; see also Ward v.
State (F1a.Dist.Ct.A~~. 1987), 511 So.2d 1109; Dorsey v.
State (Ga.Ct.App. 1978), 245 S.E.2d 31 (cases where states
have specific provisions providing for imposition of child
support as probation conditions).
Finally, Shaver argues that his former wife, Barbara
Gail Love (Love) and he contracted so that no child support
was required for E.C.S. On June 12, 1986, a "Permanent
Change of Custody Agreement" was signed by Love and Shaver.
This document was notarized but was not signed by a judge.
Although the District Court's ruling is based on
rehabilitation and restitution we note that parents do not
have the ability to enter contracts to set child support.
The "custody and support of children are never left to
contract between the parties." In re Marriage of Mitchell
(Mont. 1987), 746 P.2d 598, 603, 44 St.Rep. 1936, 1941-1942;
In re Marriage of Carlson (Mont. 1984), 693 P.2d 496, 500, 41
St.Rep. 2419, 2424.
The District Court is vested with significant
discretionary power when it considers sentencing. Under the
facts of this case, the District Court wisely provided for
the victims in this unfortunate incident. Shaver received a
minimal sentence in this case as all but sixty days of his
sentence was suspended. This allows Shaver to maintain his
employment which in turn should allow the victims to benefit.
Affirmed.

\

We concur:

Justices