State v. Arlington

NO. 93-099
IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

STATE OF MONTANA,

Plaintiff and Respondent,
-v-
OLLIE W. ARLINGTON,
Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Channing J. Hartelius, Hartelius, Ferguson & Baker,
Great Falls, Montana: Brant S. Light, Great Falls,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Micheal S.
Wellenstein, Assistant Attorney General, Helena,
Montana; Patrick L. Paul, Cascade County Attorney,
Great Falls, Montana

Submitted on Briefs: March 3, 1994
Decided: May 16, 1994
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

This is an appeal by the defendant from a jury trial verdict
and subsequent sentencing order, of the Eighth Judicial District

Court, Cascade County, finding the defendant guilty of aggravated

assault and sentencing him to ten years in prison, with six years

suspended, plus two years for the use of a dangerous weapon in the

assault. We affirm the District Court.

The following are issues on appeal:

1 . Did the District Court err by failing to give Arlington's
Instruction No. 12?

2. Did the District Court err when it excluded Arlington's

proposed expert witness' testimony?

3. Did the District Court err when it granted the State's

motion in limine to exclude testimony concerning a possible civil

lawsuit by the DeKonings against Arlington?

4. Did the District Court err when it allowed the Emergency

Medical Technicians (EMTs) to testify regarding Carl DeKoning's

statements made during the trip by ambulance to the hospital?

5. Did the District Court conduct a proper in-camera

inspection of DeKoning's chemical dependency rehabilitation

records?

6. Was there sufficient evidence to sustain the conviction of

aggravated assault?

7. Did the District Court err when it denied Arlington's

motion for a new trial?

8. Was Arlington deprived of his right to a fair trial due to

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prosecutorial misconduct?
9. Did the District Court err by sentencing Arlington under

the weapon enhancement statute?

10. Were Arlington's constitutional rights violated because
he was sentenced under the weapon enhancement statute rather than

through the charge of felony assault with a weapon?

11. Did the District Court err when it failed to order a new
sentencing due to irregularities at sentencing?

12. Did the District Court err when it failed to find an

exception to the mandatory minimum sentence for aggravated assault?

FACTUAL BACKGROUND

In order to understand the events which led to the aggravated

assault charge against Oliver (Ollie) Arlington (Arlington), the
framework around which this incident transpired must be presented.

Carl DeKoning (DeKoning), the victim of Arlington's assault, and

his wife, Vicki DeKoning (Vicki), moved to Belt, Montana, in about
1985. DeKoning had a history of alcohol abuse, as well as physical

and sexual abuse of his wife.

Subsequent to the DeKoning's move to Belt, Vicki became

employed by Arlington at the Black Diamond Bar for approximately

five years. At some point during their working relationship,

Arlington and Vicki began and maintained an affair.

In time, DeKoning discovered the affair and several incidents

occurred as a result. DeKoning found Arlington's wallet in his

truck. He gave the wallet to Vicki and also went to Arlington's

house to tell him that Vicki had his wallet.

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 Nothing more came of the incident with the wallet but as the
extramarital relationship continued, DeKoning decided that he would

go to talk to Arlington and see if Arlington would take care of

Vicki and the DeKoning children, in the event that DeKoning stepped

out of the picture. Arlington agreed to take care of them so

DeKoning returned home to talk to Vicki about Arlington's decision.

However, she did not want to leave her relationship with her

husband; she wanted to wait and see if DeKoning would "quit his

drinking and straighten up."

At a point shortly after the decision to wait and see whether

DeKoning and Vicki would reconcile, the DeKonings decided to go to
a show together. Arlington appeared at the show, took Vicki out of

the theater and attempted to discuss where their relationship was

headed. Although DeKoning did not attempt any action at the show,

he appeared at Arlington's house the following day and told

Arlington to stay away from his wife, called him names, threatened

him, and spit in Arlington's face.

The DeKoning's relationship continued to deteriorate and on

June 12, 1992, DeKoning asked Vicki for a divorce. He did not wish

to talk about the divorce that day, and, needing some mechanical

work performed on his truck, left for a friend's house to use his

workshop.
DeKoning worked on his truck at his friend's house, drinking

beer as he worked. Upon completion of his mechanical work,

DeKoning left his friend's house and proceeded to town. On his way

to town, he saw a squirrel in the road and swerved to avoid hitting

4
the squirrel.
In his attempt to avoid hitting the squirrel, DeKoning moved
into the opposite lane of traffic, where Bryan Arlington, (Bryan)
Arlington's son happened to be driving. Bryan called his father
and his father suggested he call Rod Kovak, a Deputy Marshal from

Belt. Kovak testified that Bryan did not seem afraid of DeKoning,

merely concerned that he might have been drinking. Kovak sought

out DeKoning in reference to Bryan's report but could not find him.

Meanwhile, DeKoning continued drinking into the evening, going

to Vicki's uncle's house to barbecue steaks. When he returned
home, he and Vicki argued over marijuana Vicki had found in

DeKoning's pants. He then hit her in the head, took the marijuana

and left the house. Later, when she could not locate her sons, she

called and determined that the boys were with their father at

Vicki's uncle's house.
Vicki does not allow her children to ride with their father

when he has been drinking so she decided to go and retrieve the

boys. Expecting possible trouble, she called Arlington before she

left and stated that if she did not return in ten minutes,

Arlington should come looking for her. She testified during trial

that when she arrived at her uncle's house, the children were

waiting for her and she drove over to her friend's house and stayed

and visited for a while.

Vicki arrived back at her home at about 11:30 p.m., whereupon

she argued with DeKoning and thereafter, he sexually assaulted her.

He testified that. he went out to an addition to the house, after

5
the assault had ended, smoked some marijuana, cried and decided
that his marriage was over. A short time later, he went to bed.
At about 2:00 a.m., the phone rang in the DeKoning home. The

phone call was for Vicki, and it was from Arlington, wondering if
she was all right. DeKoning heard the conversation, ascertained

that the caller was Arlington, and hung up the phone. Arlington

called again and DeKoning answered the telephone. According to

DeKoning's testimony, Arlington was insisting that DeKoning had
tried to harm Bryan. Arlington asked DeKoning to meet him in

Armington but DeKoning stated that he would rather meet him at the

Arlington home. DeKoning took a beer and left for the Arlington

residence.

DeKoning testified that when he arrived at the Arlington

residence, he yelled, "hey, you son-of-a-bitch, I'm here" and

Arlington flew out of his trailer with a bat in his hand. A
struggle followed, with DeKoning trying to get the bat but

Arlington hit him in the legs with the bat. DeKoning blacked out

momentarily and when he "came around, 'I he tried to poke Arlington

in the eye but Arlington hit him in the head with the bat.

DeKoning stated that he did not remember what occurred after that

point until he woke up in the Intensive Care Unit of the hospital.

Arlington's testimony about the event differed. He testified

that he was in bed when he heard someone "holleringP' and banging on

his door. When he realized that it was DeKoning, Arlington told

his son, Bryan, to call the police. He stated that when he arrived
at the door, DeKoning "smacked" him and then he hit DeKoning and

6
both men went tumbling out the door. The two men fought and

struggled, kicking each other and falling among a motorcycle,

coolers and boxes of all types which were lying on the ground in

the area where they had fallen.

According to Arlington, DeKoning was relentless, at one point

grabbing Arlington's eye and Arlington, in an effort to "fight off"

DeKoning, started. elbowing him. He stated that DeKoning finally
loosened his grip after Arlington continually hit him in the head.

Arlington then moved away from DeKoning, Bryan came out the door,

Arlington determi.ned that Bryan had not called the police so he
called Rod Kovak and asked him to come to the Arlington residence.
At the time of the altercation, Ida Ginger Elam, a neighbor of

Arlington's, was awakened when a dog began barking and she heard

yelling. She heard the sound of very hard hitting, similar to the

sound of a bat hitting a sandbag. She heard the sound of a light

voice trying to stop the beating. When the beating did stop, Ms.

Elam saw someone go to a truck parked in front of the trailer,

enter the truck, drive the truck up the Armington Road and return

about five minutes later. She returned to bed but got up and

looked out the window again when she saw lights shining through her

window. When she went to the window, she saw a person in uniform

moving about the area.
Deputy Rod Kovak testified that he received a call from

Arlington about 2:45 a.m. Arlington told Kovak that DeKoning was

at his house and wanted to fight and he requested Kovak's presence.

Arlington called back about three minutes later and told him to

7
hurry. Kovak found DeKoning lying on the ground with a laceration

above his eye. He observed that Arlington did not look like he had

received any injuries. Arlington reported a fight with fists,

elbows, kicking and falling down the stairs. DeKoning reported

that Arlington hit him with a bat. When Arlington learned what
DeKoning had said about the bat, he requested that Kovak search for

a bat or a reasonable facsimile.

Meanwhile, as per his father's orders, Bryan brought a wet

cloth to DeKoning to clean his wounds. As DeKoning was cleaning

his wounds, Kovak noticed that the blood was already dry on

DeKoning's face, neck and hands. However, since the incident had

occurred outside the Belt city limits, Kovak called the county
deputy and requested his presence.
An ambulance was called and it arrived about 3:lO a.m. EMTS

Janice Griffin, Patty Darko and Denise Puppe surveyed the scene and
began providing treatment upon their arrival. DeKoning had long

bruises on his chest, abdomen, back, and his left side. He was

bleeding profusely from his head, he had facial swelling and

complained of pain in his head, hands, jaw and legs. Arlington did

not need or receive any physical care.

In the ambulance on the way to the hospital, one of the EMTs

noticed that DeKoning was bleeding from his ear, an indication of

a possible brain injury. They then became concerned with keeping

DeKoning awake so they started to question him. In the course of

conversing with iDeKoning, the EM% tried to find out what had

happened to him. Be stated that he had been hit repeatedly with a

8
bat by Arlington and that Arlington would not stop hitting him

despite DeKoning's protests.
Shortly after the EMTs left the Arlington residence, Deputy

Tadman, from the county sheriff's office arrived. Arlington
reported to Tadman that DeKoning had arrived at his house,

threatening to kill him and that a fight had ensued. His report

was much the same as that reported to Rod Kovak, a general brawling
fistfight. However, Tadman stated that he did not see any marks or

signs of a fight on Arlington's person. Be did see some blood on

Arlington's shirt. Tadman requested a look at Arlington's shoes
and he was shown the tennis shoes Arlington wore during the fight.

Tadman searched the residence but found nothing. Be also asked for
a statement from Arlington. The property was later searched again

and Arlington was ultimately arrested for aggravated assault.

Dr. Gallea, an emergency room physician, was the first doctor
to treat DeKoning upon his arrival at the hospital. By the time he

arrived at the emergency room, DeKoning could not really remember

what had happened so the doctor had to rely on information from law

enforcement personnel and the EMTs, who told Dr. Gallea that

DeKoning had been involved in an altercation and was hit by a

baseball bat. The doctor was concerned with DeKoning's sleepiness

because of the possibility of brain injury. Be described DeKoning

as having numerous bruises, a cut on his forehead and being quite

bloody. The doctor was also concerned from his examination that

DeKoning had possible fractures. The doctor testified at trial

that DeKoning's injuries were among the worst he had seen from two

9
men involved in an altercation in the last 20 years.
Dr. Gallea's opinion of the source of the injuries was that
they were caused by something more than fists, elbows, legs or
feet. He said the pattern of the injuries indicated something
heavy, elongated and relatively even in its pattern was used in the
fight. He also explained that he did not think the injuries were
caused by DeKoning falling against an object or objects.
Dr. Schaefer, a neurosurgeon, also treated DeKoning in the
emergency room. He noted that DeKoning's level of consciousness
was impaired and his brain was not functioning normally. From
tests conducted by the doctor, it was determined that DeKoning had
an actual bruise on his brain, as well as some swelling at that
area of the brain. He also had a blood clot between his brain and
his skull. When the blood clot and the swelling in his brain
resolved, there was an area of the brain which had atrophied or
shrunken; this area did not rejuvenate.
Dr. Schaefer opined that the injuries to DeKoning were caused
by blunt objects, delivered with substantial force. He considered
that the blunt object was a long, cylindrical type of object. The
doctor stated that DeKoning continues to have difficulties because
of his brain injury, including difficulty with smell and taste,
concentration, depression, seizures and other problems basic to
head injured persons.
Dr. Gorsuch, an orthopedic surgeon, testified that DeKoning
had two tibia fractures and an ulna fracture. She testified that
the injuries were consistent with being hit by a hard object such

10
as a baseball bat.
Dr. Tacke, a physiatrist, testified that DeKoning suffers
memory and language problems due to his brain injury. He also

sustained some hearing loss. He reported that DeKoning has some

degree of permanent brain injury.

PROCEDURAL BACKGROUND

An information was filed on July 8, 1992, charging Arlington

with aggravated assault. A jury trial was held from November 16,

1992 through November 19, 1992. Arlington claimed that he acted in
self defense when he was attacked by DeKoning on June 13, 1992. On
November 19, 1992, the jury found Arlington guilty of aggravated

assault. Arlington was sentenced on December 30, 1992, to ten

years in the Montana State Prison, with six years suspended. He

was also sentenced to an additional two years, to run

consecutively, for the use of a dangerous weapon in the commission
of the assault. Arlington appealed to the Supreme Court on

December 30, 1992. ISSUES

ISSUE ONE

Did the District Court err by failing to give Arlington's

Instruction No. 12?

Arlington argues that there is no duty to retreat when one is

attacked at his home and he should have been able to provide an

instruction to the jury which states that premise. The State

counters that the District Court correctly instructed the jury on

Montana law applicable to the use of force in the defense of self,

others or occupied structures. We agree with the State.

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 Arlington's offered instruction was based on California law.
The instructions given by the District Court, Instruction No. 10
and Instruction No. 11, were taken from the pattern jury
instructions relating to the use of force in defense of a person
(MCJI 3-102) and the use of force in defense of an occupied
structure (MCJI 3-103). The use of pattern jury instructions in
criminal cases has been approved in State v. Lucero (1984), 214
Mont. 334, 343-344, 693 P.2d 511, 516. Additionally, Montana
Criminal Jury Instructions 3-102 and 3-103, are based on 55 45-3-
102 and 103, MCA. It is, therefore, difficult to imagine
instructions which would more properly state Montana law on the
subject. State v. Bingman (1987), 229 Mont. 101, 112, 745 P.2d
342, 348. Both instructions contain the necessary elements of the
statute and properly instruct on the applicable Montana law at
issue.
Moreover, "[w]hile a defendant is entitled to have
instructions on his theory, he is not entitled to put his arguments
in those instructions." State v. Short (1985), 217 Mont. 62, 70,
702 P.2d 979, 984. (Citations omitted.) Even with the offered
instructions, Arlington was still able to argue that there was no
duty to retreat. Finally, the instructions, viewed as a whole,
fully and fairly instructed the jury on the applicable law. We
hold that the jury was properly instructed and the District Court
properly excluded Arlington's proposed Instruction No. 12.
ISSUE TWO
Did the District Court err when it excluded Arlington's

12
proposed expert witness' testimony?
Arlington proposed that Jerry Lemm, a martial arts instructor,
testify as an expert on self-defense regarding two issues: 1)
whether '*a fist and/or being pushed into objects could have
resulted in the injuries to Carl DeKoning and 2) that the force
used by Ollie Arlington was not excessive." Arlington asserts that
Lemm could have helped educate the jury as to how the injuries
occurred, the effect of adrenaline on a person, the amount of force
needed to injure someone and he could have enlightened the jury as
to how to properly view the photographic evidence. The State
contends that the determination that a witness is an expert is
within the discretion of the trial court and the determination will
not be disturbed upon appeal absent an abuse of discretion.
Moreover, the State insists that the issue of reasonable force is
a factual determination for the jury.
Again, we agree with the State. Rule 702, M.R.Evid., governs
the admissibility of expert testimony and it provides:
If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence
or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion
or otherwise.
"The determination that a witness is an expert is largely
within the discretion of the trial judge, and such determination
will not be disturbed on appeal unless the court is shown to have
abused its discretion." State v. Evans (1991), 247 Mont. 218, 229,
806 P.2d 512, 519.
In the instant case, the issue about which Mr. Lemm was
13

._1
supposed to educate the jury was whether the force used by
Arlington was excessive. This issue is a factual determination,

within the province of the jury. State v. Crabb (1988), 232 Mont.

170, 174, 756 P.2d 1120, 1123. However, "[t]estimony in the form

of an opinion or inference otherwise admissible is not

objectionable because it embraces an ultimate issue to be decided

by the trier of fact." State v. Howard (1981), 195 Mont. 400, 404,

637 P.2d 15, 17. (Citation omitted.)

The crucial question is "whether the subject is one of such

common knowledge that men of ordinary education could reach a
conclusion as intelligently as the witness, or whether the matter

is sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact." State v. Campbell (1965),
146 Mont. 251, 258, 405 P.2d 978, 983. The issue of reasonable
force is one which the jury itself can determine without the

assistance of an expert such as Mr. Lemm. See Howard, 637 P.2d at

17. Moreover, Lemm is not a medical expert and therefore not

qualified to testify about the injuries or the effect of adrenaline

on the body. Therefore, we hold that the District Court did not

abuse its discretion in excluding the testimony of Jerry Lemm.

ISSUE THREE
Did the District Court err when it granted the State's motion

in limine to exclude testimony concerning a possible civil lawsuit

by the DeKonings against Arlington?
Arlington argues that the District Court should have allowed

him to cross-examine Carl and Vicki DeKoning about a contemplated

14
civil action against Arlington because the civil action relates to
the credibility of both Carl and Vicki. The State asserts that if
a civil action had indeed been filed against Arlington, it would

have been relevant for the appellant to cross-examine the DeKonings

about the lawsuit. However, since no action was filed before the

criminal trial took place, any testimony concerning a future

lawsuit would have been speculative.

There are two views as to whether a defendant may cross-

examine an opposing party concerning a contemplated civil lawsuit.

The majority view holds that a defendant can cross-examine a
witness concerning a contemplated future civil action against a

defendant. See State v. Underwood (1979), 281N.W.2d 337; State v.

Ferguson (1983), 450 N.E.2d 265; Wooten v. State (1985), 464 So.2d
640. The minority view holds that precluding a defendant from

cross-examining a witness about a contemplated civil action does

not deny the defendant's right to impeach a witness by showing

interest, motive or bias because potential litigation is

speculative and uncertain. See People v. Martinez (1983), 458

N.E.2d 104 and People v. Bradford (1979), 397 N.E.2d 863.

This is an issue of first impression in Montana and a careful

review of case law from other jurisdictions has convinced us that

the majority view is the correct approach. "It is beyond question

that a witness' bias and prejudice by virtue of pecuniary interest

in the outcome of the proceeding is a matter affecting credibility

under [Rule 611(B)]." Ferguson, 450 N.E.2d at 270. Additionally,

"[t]he general rule is that the pendency of a civil
action brouyht against an accused by a witness in a

15
 criminal case is admissible as tending to show interest
and bias of the witness to prove a motive to falsify,
exaggerate or minimize on his part, in other words, to
support a claim that such witness * testimony may be false
or inaccurate, intentional or otherwise. Such evidence
may be introduced in cross-examination...
The rule has been extended to the situation where no
civil action has been commenced, but such a suit is or
may be contemplated, as in the case of consultation with,
or hiring of, an attorney."
Ferquson, 450 N.E.2d at 270. (Citation omitted.)
In the instant case, the defendant was not allowed to cross-
examine the DeKonings about their attorney's request for a copy of
Arlington's insurance policy or DeKonings' statements to the Belt
community about a possible civil action against Arlington. Under
Rule 401, M.R.Evid., "[rlelevant evidence may include evidence
bearing upon the credibility of a witness or hearsay declarant."
See also Underwood, 281 N.W.2d at 341. Also, Rule 607, M.R.Evid.,
provides that the credibility of a witness may be attacked by any
party. The contemplated lawsuit was certainly relevant evidence
affecting the credibility of both Carl and Vicki DeKoning. The
trial court's decision to prevent the defendant from cross-
examining the DeKonings was error because the jury was entitled to
hear evidence that the DeKonings had an interest in the outcome of
the trial. Underwood, 281 N.W.2d at 341.
We conclude however, that the error was harmless. There was
extensive evidence that Arlington's attack on DeKoning was
excessive and unreasonable. Ferauson, 450 N.E.2d at 270-271,
footnote 5. The fact that the DeKonings were contemplating a civil
action against Arlington would not have materially affected the
jury's verdict in the face of the overwhelming evidence provided by
16
the medical testimony and photographic evidence that D&Zoning was
severely beaten. Additionally, there was already sufficient
evidence to show that DeKoning was biased against Arlington.

Therefore, we adopt the majority view that the proper approach

to the question of whether a defendant may cross-examine a witness

regarding a contemplated civil action against the defendant is to

allow the cross-examination. We further hold that, in the instant

case, the failure to allow the cross-examination to proceed was a

harmless error.

ISSUE FOUR
Did the District Court err when it allowed the Emergency

Medical Technicians (EMTs) to testify regarding Carl DeKoning's
statements made during the trip by ambulance to the hospital?

Arlington asserts that the trial court erred when it allowed

the testimony of the EMTs as to DeKoning's statements in the

ambulance enroute to the hospital because Montana law clearly

provides that only medical doctors can testify as to hearsay

statements made for the purposes of medical diagnosis or treatment.

See Rule 803(4), M.R.Evid. Arlington further insists that even if

Montana was to allow EMTs to testify to hearsay statements for the

purposes of medical diagnosis, the State failed to lay any
foundation that such testimony was necessary for diagnosis. The

State declares that Rule 803(4), M.R.Evid., applies to nurses,

ambulance attendants and even family members as long as that person
is providing diagnosis or treatment.

The medical diagnosis and treatment exception to the hearsay

17
rule is Rule 803(4), M.R.Evid., and provides:
Statements for purposes of medical diagnosis or
treatment. Statements made for purposes of medical
diagnosis or treatment and describing medical history, or
past or present symptoms, pain, or sensations, or the
inception or general character of the cause or external
source thereof insofar as reasonably pertinent to
diagnosis or treatment.

Statements made for the purpose of diagnosis or treatment must

satisfy a two-part test in order to come within this exception to

the hearsay rule. State v. Harris (1991), 247 Mont. 405, 808 P.2d

453. First, the motive for making the statement must be consistent

with seeking medical treatment. Second, the statement must be such
as would be relied upon by a doctor when making decisions regarding

diagnoses or treatment.

Montana cases involving the application of Rule 803(4),

M.R.Evid., have heretofore found that the medical diagnosis

exception applied only to medical doctors. However, these cases
have considered incidents of sexual abuse with young children.

In State v. J.C.E. (1988), 235 Mont. 264, 767 P.2d 309, this

Court concluded that it would not extend the medical diagnosis and

treatment excepti.on beyond medical doctors in this case because

Stuart, an unlicensed psychologist, was not licensed to render

diagnoses and therefore could not testify about such diagnoses.

Moreover, we were concerned that children might not comprehend the

necessity to tell a doctor the truth in order to aid in the

diagnosis and treatment of the child, and therefore, it would be

difficult to meet the first requirement of the medical diagnosis
and treatment exception to Rule 803(4), M.R.Evid. J.C.E., 767 P.2d

18
at 314.

In Harris, we again declined to extend the medical diagnosis

and treatment exception to persons other than doctors, again in the

context of hearsay statements from young children. We reiterated

our concern from J.C.E., that the trustworthiness of statements

made by a young child is not assured because the child does not
comprehend the importance of telling the doctor the truth in order

to aid in diagnosis and treatment.

However, we also stated:
While we agree with the State that in some cases
hearsav statements made to nersons other than phvsicians
may be admissible under the medical diasnosis and
treatment exception, we once again decline to extend the
exception beyondmedical doctors in cases involving abuse
of young children because we cannot be assured that such
statements are "within the purpose of the exception."
Harris, 808 P.2d at 457. (Emphasis added.)

We conclude that this is a proper case for extending the
medical diagnosis and treatment exception to emergency medical

technicians as fi.rst responders in a medical crisis. We do not

have the concerns over trustworthiness that were present in J.C.E.
and Harris: in the present case, we have an adult who has been
severely beaten and is being treated by EMTs as the first medical

personnel to respond to DeKoning's injuries. There is no evidence

that the EMTs fabricated their testimony or had any interest in his

statements other .than to appropriately treat him for his injuries.

Further, the statements by DeKoning related that Arlington had

repeatedly hit him with a baseball bat. These statements, told to

medical personnel, meet the two-part test followed in Harris, 808

19
P.2d at 457. First, his statements were consistent with seeking
medical treatment; the EMTs had to know how he was injured to know
how to treat him and how to conduct their examination. Second, the
statements that be was hit repeatedly by a baseball bat are the
type of statements a physician would rely on in making his
diagnosis and developing his treatment plan; in fact, the
statements were relied upon by Dr. Gallea, the emergency room
physician who treated DeKoning when he arrived at the Deaconess
Hospital in Great Falls.
The statements were related by the EMTs because of the fact
that DeKoning's condition had deteriorated by the time the
ambulance reached the hospital. DeKoning had become very sleepy
because of his head injury and was no longer a clearly coherent
patient. Additionally, DeKoning's statements about how he
sustained his injuries are consistent with his injuries: he had
injuries suggestive of being hit by a long, hard object.
The medical diagnosis and treatment exception to the hearsay
rule, Rule 803(4), has been extended to other medical personnel by
Oregon in State v. Jensen (1992), 837 P.2d 525. In Jensen, a three
year old boy's statements to a nurse that his "daddy" placed him in
a bathtub filled with very hot water, were admitted under Rule
803(4) as an exception to the hearsay rule.
The nurse's testimony was admitted under a substantially
similar test for admissibility because the statements concerned the
very reason the child had been admitted for emergency care.
Furthermore, the child's statements were in response to questions
asked by the nurse to calm the child and obtain a medical history
for the purposes of medical diagnosis and treatment. The
information allowed the nurse to determine the proper course of
treatment for the child. The child's statements were found to
describe "the inception or general character of the cause [or]
external sourcel' of the injuries. Finally, the statements were
pertinent to diagnosis and treatment, thus meeting all the criteria
for a hearsay exception for statements for the purpose of diagnosis
and treatment. The Jensen court, therefore, concluded that the
nurse's statements were properly admitted under Rule 803(4),
Here, in view of the fact that the EMTs were the medical
profession's first responders in a medical crisis and the fact that
testimony from the EMTs met the two-part Harris test and contained
sufficient guarantees of trustworthiness, we hold that the
testimony from the EMTs was properly admitted under the medical
diagnosis exception of Rule 803(4), M.R.Evid.
Because we have held that the testimony of the EMTs was
admissible under the medical diagnosis exception of Rule 803(4),
M.R.Evid., we will not address the argument that the testimony was
admissible under the excited utterance exception.
ISSUE FIVE
Did the District Court conduct a proper in-camera inspection
of Carl DeKoning's chemical dependency rehabilitation records?
Arlington maintains that the court's in-camera review of
DeKoning's records was in error because the court provided only a
summary of the records, not the actual contents of the records.

21
Arlington believes that it was not the prerogative of the court to
decide what information the defendant should receive. The State,
however, contends that the court had no duty to disclose DeKoning's
confidential records for exculpatory and impeachment material; the
court can simply provide a summary of pertinent evidence from the
report. Moreover, the State relates, there is nothing in the
District Court record to demonstrate what type of summary the court
provided to Arlington.
Arlington did not seek to have DeKoning's chemical dependency
rehabilitation records or the summary of the records filed on
appeal to this Court. Miller v. Western Guaranty Fund Services

(1994), _ Mont -, __ P.2d -, 51 St.Rep. 233, 236. We will
not presume that the District Court erred in its "in-camera"
evaluation of DeKoning's records: without the records or the
summary, this Court cannot possibly review the District Court's
decision to provide Arlington with a summary of those records.
Miller, 51 St.Rep. at 236. See also, Palmer by Diacon v. Farmers
Ins. (1993), _ _ Mont. __, 861 P.2d 895, 906. It is the
appellant's obligation to insure that the record on appeal is
complete and accurate. Arlington should have requested the
District Court to seal the records and include the records and the
summary in the District Court file. Miller, 51 St.Rep. at 236.
See also State v. Little (1993), _ Mont. __, 861 P.2d 154, 158.
- -

Additionally, Arlington was able to undermine DeKoning's
credibility without the access to the actual records at issue. He

22
elicited testimony from DeKoning admitting that he (DeKoning)

needed to control his alcohol and drug abuse and needed to control
his anger as associated with his drinking. Arlington informed the
jury that DeKoning had been convicted of assault and had physically

and sexually assaulted Vicki.

In view of the fact that there is no record for this Court to

review, we have no choice but to affirm the District Court's

decision to evaluate DeKoning's records and provide Arlington with

a summary of relevant exculpatory and impeachment material.
ISSUE SIX
Was there sufficient evidence to sustain the conviction of

aggravated assault?

The standard for review of the sufficiency of the
evidence is 'whether, after viewing the evidence in the
light most :favorable to the prosecution, any rational
trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.'

State v. Cyr (1987), 229 Mont. 337, 339, 746 P.2d 120, 122.
(Citation omitted.)

Arlington asserts that he was entitled to use the amount of

force he used even if he was mistaken about the amount of force

necessary in the incident. He contends that he was acting in self

defense on the early morning in question. The State counters that

there is sufficient evidence to support the conclusion that

Arlington purposely and knowingly caused DeKoning's injuries.

In ,order to establish the justifiable use of force, as

Arlington pled as an affirmative defense, three elements must be

proven. These elements are:

23
 (1) that the defendant was not the aggressor,
(2) that the defendant reasonably believed that he was in
imminent danger of unlawful harm, and
(3) that the defendant used reasonable force necessary to
defend himself.

State v. Popescu (1989), 237 Mont. 493, 495, 774 P.2d 395, 396-397.
We need go no farther than to state that the defendant in the

instant case cannot meet the third element of the test for

justifiable use of force. The testimony presented at trial,

particularly the medical testimony and photographic evidence,

clearly demonstrates that Arlington did not use reasonable force to

defend himself.
After our review of the record, we also conclude that there

was sufficient evidence to convict Arlington of aggravated assault.
Section 45-5-202(l), MCA, provides that "[a] person commits the

offense of aggravated assault if he purposely or knowingly causes

serious bodily injury to another." "Purposely I1 is defined in § 45-

2-101(58), MCA, as follows:
[A] person acts purposely with respect to a result
or to conduct described by a statute defining an offense
if it his conscious object to engage in that conduct or
to cause that result. When a particular purpose is an
element of an offense, the element is established
although such purpose is conditional, unless the
condition negatives the harm or evil sought to be
prevented by the law defining the offense. Equivalent
terms such as "purpose" and "with the purpose" have the
same meaning.

"knowingly*' is defined in § 45-2-101(33), MCA, as:

[A] person acts knowingly with respect to conduct or
to a circumstance described by a statute defining an
offense when he is aware of his conduct or that the
circumstance exists. A person acts knowingly with
respect to the result of conduct described by a statute
defining an offense when he is aware that it is highly
probable that such result will be caused by his conduct.

24
 When knowledge of the existence of a particular fact is
an element of an offense, such knowledge is established
if a person is aware of a high probability of its
existence. Equivalent terms such as lSknowingl* or "with
knowledge" have the same meaning.

In the instant case, the injuries to DeKoning were so severe

that a jury could reasonably believe that Arlington purposely and
knowingly caused the injuries. They could reasonably conclude that

he did not act in self defense, but rather, he continued to beat

DeKoning after he had rendered him incapable of further attack. As

a result of the incident, DeKoning sustained two broken legs, a

broken hand, a potentially life threatening brain injury as well as
numerous cuts, lacerations and bruises. The brain injury healed to

a certain degree but DeKoning did sustain some permanent brain

damage. Arlington stated that he was aware that there was a high

probability of serious injury when two people are engaged in a

fight such as the one in which he and DeKoning were engaged.
Although Arlington insisted he injured DeKoning solely through

the use of his fists, elbows and legs, the doctors, to a number,

opined that it was very unlikely that the injuries were produced by

Arlington using his fists and his feet, especially since he was

wearing tennis shoes. Dr. Gallea, the emergency room physician,

stated that "[tlhese injuries rank as among the most severe that

I've seen from a fight between two people." Dr. Gallea has been

practicing medicine in an emergency room setting for about 20

years. When he was asked if he had an opinion about how the

injuries were caused, he stated that he was quite positive that:

[tlhese injuries had to be caused by the assailant using
something other than simply fists or parts of his own
25
 body. And I say that because, in part, the consequence
of the injury is so severe, and in part because of the
shape and pattern of the injuries, on the severity.
The blows he received were severe enough, strong
enough to fracture his skull and fracture the shin bone
on the right side. And these are very strong bones that
I don't believe could be broken simply by being hit by a
fist.
And the injuries caused hemorrhage of the brain,
which is also is more severe than I've ever seen from a
fight simply involving fists.
Then the pattern of the injuries shown in the
photographs suggest to me that something other than fists
was used. It seems like it's something that was heavy
and elongated and relatively even in its pattern since
the bruises have that elongated symmetrical even pattern
to them.

The doctors also opined as to why they felt the injuries were
not sustained from falling on the steps or any of the objects in

the area where the fight took place. The pattern of the injuries,

as stated above, and the fact that there were no slivers of wood or

pieces of stain or paint, suggested that the steps, railing, tail

pipe of the motorcycle or the cooler were not involved in the
fight, to any great extent.

There was additional testimony that Arlington used a weapon to

excessively and severely beat Dekoning, who, the evidence shows was

unarmed. The EMTs testified that DeKoning told them that Arlington

repeatedly hit him with a baseball bat. Arlington's neighbor

reported hearing the sound like a baseball bat hitting something at

the time the assault was taking place.
The jury was entitled to believe that the injuries were not

caused by fists, kicks or falls against objects in the area where

the fight took place. They were entitled to believe that the

injuries were caused by a severe beating with a baseball bat. The

26
jury reasonably concluded from the testimony and photographs of the
victim, that Arlington used excessive and unreasonable force
against DeRoning. The jury did not believe Arlington's claim of
self defense but did believe that Arlington purposely and knowingly
caused serious bodily injury to DeKoning. State v. Bower (1992),
254 Mont. 1, 9, 833 P.2d 1106, 1111-1112. We hold.that there was
sufficient evidence to support Arlington's conviction of aggravated
assault.
ISSUE SEVEN
Did the District Court err when it denied Arlington's motion
for a new trial?
On January 21, 1993, Carl and Vicki DeKoning filed a civil
complaint against Arlington in the Eighth Judicial District Court,
Cascade County. Count I of the complaint alleges that negligent
conduct by Arlington caused DeKoning's injuries. Count II alleges
the injuries were caused by Arlington's intentional conduct.
Thereafter, Arlington filed a motion in the District Court for a
new trial based on newly discovered evidence.
Arlington contends that the civil complaint is an admission by
the alleged victim that Arlington's conduct was not purposeful and
knowing. He asserts that this evidence would surely have changed
the outcome of the trial. The State argues that the evidence does
not satisfy the s:ix criteria necessary to warrant a new trial where
the basis for the motion is newly discovered evidence.
State v. Greeno (1959), 135 Mont. 580, 586, 342 P.2d 1052,
1055, identifies the six criteria which must be met to warrant a

27
new trial:
(1) That the evidence must have come to the
knowledge of the applicant since the trial;
(2) that it was not through want of diligence that
it was not discovered earlier;
(3) that it is so material that it would probably
produce a different result upon another trial:
(4) that it is not cumulative merely--that is, does
not speak as to facts in relation to which there was
evidence at the trial:
(5) that the application must be supported by the
affidavit of the witness whose evidence is allege to have
been newly discovered, or its absence accounted for; and
(6) that the evidence must not be such as will only
tend to impeach the character or credit of a witness.

The State insists that Arlington cannot meet the third and sixth
criteria under Greeno, and because all criteria are not met,

Arlington's motion must fail. w, 746 P.2d at 122-123. We agree

with the State's assessment on this issue.

The evidence adduced during trial, through testimony and

photographs, was. sufficient to support the contention that

Arlington's actions were purposeful and knowing. The excessive

force used by Arlington and the severity of the injuries which

followed, convinced the jury that Arlington intended his actions.

We held, in the previous issue, -that the jury correctly concluded

that Arlington's conduct was intentional.
The third criterion of Green0 cannot be met here. The civil

complaint filed by DeKonings was not so material as would have

produced a different result upon another trial. The evidence was

simply overwhelming that Arlington's conduct was not merely

negligent, but purposeful and knowing.
Furthermore, the District Court, in its denial of the motion

for a new trial, noted that new evidence which goes only to impeach
28
the credibility of a witness is not a sufficient basis upon which
to grant a new trial. The civil complaint would be used at a new

trial to impeach the credibility of Carl and Vicki DeKoning. Under

the sixth Green0 criterion, this is not a permissible reason to

grant a new trial.

State v. Lewis (1978), I77 Mont. 474, 483, 582 P.2d 346, 351,
states that the decision to grant a new trial lies within the

discretion of the trial court and will not be disturbed unless a

clear abuse of discretion is shown. Here, evidence supports the
trial court's decision to deny the motion for a new trial so no
abuse of discretion is shown and, accordingly, we hold that the

District Court did not err in denying Arlington's motion.
ISSUE EIGHT

Was Arlington deprived of his right to a fair trial due to

prosecutorial misconduct?
Arlington alleges that the prosecution engaged in a continuing

course of misconduct which violated his right to, a fair trial.

"[F]or reversible error in a criminal case it must be established

that there was a denial of a substantial right of the defendant as
a result of an alleged error." State v. Watkins (1971), 156 Mont.

456, 465, 481 P.2d 689, 694. Prejudice in a criminal case will not

be presumed, it must be established by the record that the

statements made by the prosecution denied the defendant a

substantial right. State v. Nichols (1987), 225 Mont. 438, 448,

734 P.2d 170, 176. See also State v. Newman (1990), 242 Mont. 315,

325, 790 P.2d 971, 977. We determine that in the face of the

29
overwhelming evidence supporting Arlington's conviction, errors
committed by the prosecution are deemed harmless. However, we will
discuss each alleged error in turn.

a. Arlington contends that he was not provided with a crime

victim's statement of Carl DeKoning despite the State's agreement

to provide the document. The State argues that Arlington cannot

complain that the State failed to provide him with the report

because there is nothing in the District Court record that shows

DeKoning actually filed a report. The State also argues, and

Arlington does not dispute, that the appellant never raised this
issue at trial.
The document at issue here is, apparently, the "Victims Claim

Form" filed by DeKoning on or about August 17, 1992, with the Crime

Victims Unit of the Department of Justice, in order to obtain

benefits under the Crime Victims Compensation Act of Montana, Title
53, Chapter 9, part 1, MCA. The claim form with the cover letter

from DeKoning's attorney was not included as part of the District

Court record on appeal, but Arlington's counsel attached a copy of

both documents to his reply brief on appeal. The impropriety of

that aside, see Iverson v. Bouma (1982), 195 Mont. 351, 363, 639

P.2d 47, 53, it is the appellant's (Arlington's) responsibility to

ensure that documents necessary for the appeal are made a part of

the record and are properly filed with this Court. (See Issue 5).

See also, Miller, 51 St.Rep. at 236. Moreover, this Court will not

presume prejudice occurred and a defendant's substantial rights

were violated unless that fact can be established by the record.

30
Newman, 790 P.2d at 977; Nichols, 734 P.2d at 176.

Furthermore, the fact that Arlington did not raise this issue
before the District Court, in general circumstances, would bar him

from raising this issue on appeal under § 46-20-104, MCA. Section

46-20-104(2), MCA, provides:

Upon appeal from a judgment, the court may review
the verdict or decision and any alleged error objected to
which involves the merits or necessarily affect the
judgment. Failure to make a timely objection during
trial constitutes a waiver of the objection except as
provided in 5 46-20-701(2).

Section 46-20-701(2), MCA, provides exceptions to the general

rule that failure to object may constitute a waiver of the

objection under 9 46-20-104, MCA. State v. Reynolds (1990), 243

Mont. 1, 9, 792 P.2d 1111, 1116. Section 46-20-701(2), MCA,

provides:
(2) Any error, defect, irregularity, or variance
which does not affect substantial rights shall be
disregarded. No claim alleging an error affecting
jurisdictional or constitutional rights may be noticed on
appeal, if the alleged error was not objected to as
provided in 46-20-104, unless the defendant establishes
that the error was prejudicial as to his guilt or
punishment and that:
(a) the right asserted in the claim did not exist at
the time of the trial and has been determined to be
retroactive in its application:
(b) the prosecutor, the judge, or a law enforcement
agency suppressed evidence from the defendant or his
attorney that prevented the claim from being raised and
disposed of; or
(c) material and controlling facts upon which the
claim is predicated were not known to the defendant or
his attorney and could not have been ascertained by the
exercise of reasonable diligence.

Arlington argues that the prosecution suppressed the report,

providing for an exception under § 46-20-701(2)(b), MCA. However,

there is no evidence in the record that the prosecutor attempted to

33
suppress the report or ever had the report in her file. Reynolds,
792 P.2d at 1116.

We also note that the claim form was available to Arlington

and his counsel as a public document under § 53-g-107, MCA, and

that at some point he did obtain a copy of the report and

transmittal letter. When he did receive the report, Arlington

should have sought to have the report included in the record.
Arlington cannot demonstrate that the alleged error was prejudicial

as to his guilt or innocence and that the prosecution suppressed

the report because there is no proof filed in the District Court
record to establish the existence or content of the report.

Finally, Arlington argues that this Court should,

nevertheless, review the prosecution's alleged misconduct here

under the "plain error" exception to 5 46-20-104, MCA. The "plain

error" doctrine provides a remedy where substantial rights of a
party have been infringed. State v. Wilkins (1987), 229 Mont. 78,

80, 746 P.2d 588,. 589. The doctrine exists to prevent "manifest

injustice." Wilkins, 746 P.2d at 589.

This rule, however, is to have limited application:

The power of discretionary review is to be employed
sparingly. As the Commission Comments to Rule 103,
M.R.Evid. indicate, the plain error doctrine VVwill be
used in exceptional cases and should not be relied upon
by counsel.1' We will invoke plain error only when it is
necessary to insure a fair and impartial trial.

Wilkins, 746 P.2d at 589. (Citation omitted.)

This is most certainly not the exceptional case envisioned to

invoke the "plain error" doctrine. Wilkins, 746 P.2d at 589.

Since Arlington, nevertheless, asserts that "suppression" of this

32
document is grounds for invocation of the plain error rule, we
dispose of this contention by merely noting that there is
absolutely nothinq in either the claim form or the cover letter

that is even remotely exculpatory as regards the criminal charges
filed against Arlington or that would assist in his defense.
Given that the report was a public document available to
Arlington's counsel for the asking, given that Arlington did not
object to the prosector's failure to deliver the report, given that
Arlington did not otherwise preserve his claim of error and include
the report in the record once he obtained it and given that there
was absolutely no exculpatory information in the document, we
conclude that there is no evidence of any prosecutorial misconduct
or prejudice here at all, much less "plain error".
b. Arlington asserts that the prosecution's misstatement of
the law in voir dire as to the burden of proof for self defense
constituted prosecutorial misconduct. The State counters that the
error was cured by Arlington's objection, the trial court's
correction and the jury instruction.
The following colloquy took place:
Ms. Christopher: Do you also understand with the
affirmative defenses that the defense has raised of
justifiable use of force, compulsion, some of those, that
they have that same burden to prove it beyond a
reasonable doubt?
Mr. Hartelius: Your Honor, I object; that's an
absolutely false statement of the law.
The Court: That's correct. Yeah. The law is by a
preponderance of the evidence on the affirmative
defenses.
Ms. Christopher: I'm sorry. Correct.
33
 Mr. Hartelius: Well, Your Honor, in reference to
justifiable use of force, all we need do is present
sufficient evidence of justification to raise a
reasonable doubt, whereas compulsion is a preponderance
of the evidence.

The Court: Right.

Additionally, jury Instruction No. 9 properly instructed the
jury on a defendant's burden of proof for his affirmative defense

of justifiable use of force.

An evidentiary issue in State v. West (1992), 252 Mont. 83,

91, 826 P.2d 940, 945, is instructive on this question. This Court

stated that:

. . . when counsel opposes the admission of evidence and
the District Court sustains counsel's objection, strikes
the evidence from the record, and instructs the jury to
disregard the evidence, the error that is committed is
presumed cured. (Citation omitted.)

The trial court in West also provided a jury instruction which
appropriately settled any remaining questions the jury may have had

on the issue. The West Court concluded that any error by the State

had been cured by the District Court's admonishment of the jury and

reading of the applicable jury instruction. West 826 P.2d at 946.
-I
The principle of West is applicable here. We conclude that the

jury was correctly informed and instructed on the burden of proof
for self defense.

C . Arlington insists that the prosecution's false comments

that he invited DeKoning to his home were improper. The State

argues that Arlington did not object to these comments during trial

and therefore this is not a proper subject for appeal.

The State is correct, pursuant to § 46-20-104, MCA, unless

34
Arlington can fit his claim of error within an exception to § 46-

20-701(2), MCA. See Issue 8a. The exceptions do not apply in this

case because (a) the right did exist at the time of the trial, (b)

evidence was not suppressed, and (c) material and controlling facts

upon which the claim was predicated were known to the defendant and
his attorney. Therefore, Arlington has waived appellate review of

this issue.
d. Arlington argues that the prosecution falsely stated that

he was a jilted lover in her opening statement. The State contends
that the prosecution did not refer to Arlington as a jilted lover

but her comments to the effect that he had lost Vicki to DeKoninq

were supported by testimony at trial.
The prosecution did not refer to Arlington as a jilted lover;

that expression was used by Arlington's attorney when he was cross-

examining Vicki DeKoninq. The prosecutor stated that the defendant

lost Vicki to her husband. This statement is not blatantly false

because Vicki testified at trial that her affair with Arlington had

ended. Moreover, even if this statement was false, it would not be

enough to affect the jury's decision in the face of the

overwhelming evidence that Arlington used excessive and

unreasonable force against DeKoninq, and was therefore, guilty of

aggravated assault.

e. Arlington asserts that a comment by the prosecutor, that

Arlington told an unidentified woman that he was going to "kill the

husband and make it look like self-defense," prejudiced the
defendant and deprived Arlington of a fair trial. The State

35
asserts that Arlington has not proved prejudice was caused by this
single statement which was objected to and which objection was

sustained.

The following, which includes the statement at issue, is
excerpted from the testimony at trial:

Q. And if that lady said that you told her that you were
going to kill the husband and make it look like self-
defense, that wouldn't be true?
A. That's a bold-faced lie.

Q. And if she says that you also told her --
MR. HARTELIUS: Your Honor, I'm going to object to this
line of questioning as being improper. There's been no
witness identified that is supposed to be saying these
things. This is beyond the scope of direct examination.
It's bringing things in that are easy to talk about, but
now as a surprise just to try to smear Ollie, it's wrong.
THE COURT: This is a different person we're talking
about, isn't it, that you are questioning about?

MS. CHRISTOPHER: Yes, Your Honor.
THE COURT: I'm going to sustain your objection.

Q. (BY MS. CHRISTOPHER) You mentioned that you were in
the military, is that right?

During this colloquy, Arlington had the opportunity to state

that he did not make any such statement to an unidentified witness.

Additionally, his attorney objected to the prosecution's line of

questioning and the trial court sustained that objection. The

prosecution then moved on to a new subject.
In another Montana case dealing with the issue of improper

comments by the prosecution, this Court stated:
"It has long been the law of this state that
prejudice in a criminal case will not be presumed, but
must appear from the denial or invasion of a substantial

36
 right from which the law imputes prejudice."...Phyne has
not demonstrated that he Was prejudiced by the
prosecution's comment....Significantly, although Rhyne
objected to the prosecutor's comment, he did not request
the District Court to admonish the jury panel or give a
cautionary instruction. Nor did he request a mistrial.
Given these circumstances, we hold that Rhyne was not
denied a fair trial as a result of prosecutorial
misconduct.

State v. Payne (1992), 253 Mont. 513, 525, 833 P.2d 1112, 1120.

(Citation omittecl.) Similarly, Arlington has not shown how this

statement prejudiced him. If he was concerned that the

prosecution's questioning inflamed the jury, he should have asked
for a cautionary warning or asked the trial court to admonish the

jury. He did neither. Nor did he request a mistrial. The medical

testimony and photographic evidence alone was enough to sustain a
conviction for aggravated assault. We conclude that Arlington was
not denied a fair trial as a result of the prosecution's

misstatement.
f. Arlington contends that the State misrepresented his

testimony in order to justify the use of the improper rebuttal

testimony of Stephen Haagenson. The State insists that Haagenson's

rebuttal testimony was proper because Arlington, himself, had

"opened the door" to testimony about his relationship with

DeKoning.

During his testimony, Haagenson reported that one morning

about one month before the incident involving Arlington and

DeKoning, Haagenson and Arlington were driving up to Arlington's

ranch. DeKoning was driving behind them on the road so Arlington
pulled over to the side of the road and returned to his home.

37
Haagenson stated that Arlington was returning to his home to
retrieve his pistol. Arlington told Haagenson that if DeKoning

followed him, *Ior something," Arlington would kill DeKoning.

Haagenson also reported that Arlington would sometimes try to talk

to Haagenson about how he felt about DeKoning but Haagenson would

tell Arlington he did not want to hear about the subject. He did

state that at that time, Arlington and DeKoning did not get along.
The State insists that this testimony was appropriate under

Rule 404(a)(l), M.R.Evid., because Arlington had previously

testified that he was not jealous or angry with DeKoning. Also,

the State asserts, Arlington testified that he did not wish to

enter into any altercations with DeKoning nor did he ever think

about using a gun to injure DeKoning. Thus, the State argues,

Arlington opened up the subject of his peaceful character as far as

his relationship with DeKoning was concerned.
We agree with the State. Arlington did testify that he was

not jealous or angry with DeKoning, rather, he felt sorry for

DeKoning. In addition, he testified that he tried to avoid fights

with DeKoning nor did he ever think of using a gun to injure

DeKoning. Testimony of this type does call into question the

appellant's character as it relates to the victim. Arlington was

trying to relate that he did not have any real problems with

DeKoning and he certainly did not want to become involved in an

altercation with him.
Rule 404(a)(l), M.R.Evid., states that:

(a) Character evidence generally. Evidence of a person's
character or a trait of character is not admissible for

38
 the purpose of proving action in conformity therewith on
a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait
of character offered by an accused, or by the prosecution
to rebut the same.

In the instant case, Arlington offered testimony to prove that

he had no real animosity toward DeKoning and certainly was not

looking for any fight with the victim. At that point, it was

permissible for the State to rebut the appellant's testimony about

his relatively peaceful relationship with DeKoning under Rule

404(a)(l), M.R.Evid. State v. Baker (1991), 249 Mont. 156, 159,
815 P.2d 587, 589; State v. Mix (1989), 239 Mont. 351, 358-359, 781
P.2d 751, 755-756. Because Haagenson's rebuttal testimony was

admissible under Rule 404(a)(l), M.R.Evid., there was no need for
the State to adhere to the requirements of the modified Just notice

rule. We conclude that the Haagenson testimony was proper rebuttal

testimony and no prosecutorial misconduct occurred here.

g. Arlington claims that the prosecution referred to Arlington

as a liar in her closing statement. The State insists that no

contemporaneous objection was made to such statements and that even

if such statements were prejudicial, they were harmless error.

The prosecution did state a number of times, that Arlington

had lied to the jury. We have previously stated that it is

extremely inappropriate for an attorney to characterize a witness'

testimony as lies in a closing argument. State v. Musgrove (1978),

178 Mont. 162, 172, 582 P.2d 1246, 1252-1253; State v. Rodgers

(1993), 257 Mont. 413, 417, 849 P.2d 1028, 1031. We repeated in

Rodsers, and we reiterate here, our strong disapproval of

39
characterizing a witness ' testimony as lies or a witness as a liar.
It is highly improper for a prosecutor to comment about the

credibility of the defendant or in any way, to invade the province

of the jury.

However, Arlington made no contemporaneous objection to the

prosecution's characterization of him as a liar. This fact
precludes this court from addressing the issue under 9 46-20-

104(2), MCA, unless the criteria under § 46-20-701(2), MCA, can be
met or the comments create an exception under the "plain error"

doctrine. Rodoers, 849 P.2d at 1031. Wilkins, 746 P.2d at 580.

Our review of the prosecution's error leads us to conclude
that Arlington cannot meet the necessary criteria under § 46-20-

701(2), MCA, and that Arlington's request that this Court apply the
"plain error doctrine" to prevent manifest injustice is, likewise,

without merit. "The power of discretionary review is to be

employed sparingly . . ..the plain error doctrine 'will be used in

exceptional cases and should not be relied upon by counsel."'

Wilkins, 746 P.2d at 589. Although the Rodcrers Court did not

"foreclose the option to invoke the plain error doctrine in a

future case involving prosecutorial misconduct," we did not invoke

the doctrine in that specific case. Rodaers, 849 P.2d at 1032.

This is not the future case envisioned by the Rodsers Court.

Although the prosecution unquestionably committed error in

commenting on the credibility of the defendant, there was no

contemporaneous objection and, in the face of the overwhelming

evidence establishing the severity of the beating to which

40
Arlington subjected DeKoning, we conclude that the prosecutor's
comments should be classified as harmless error. Mix, 781 P.2d at
754.
We close our discussion on this point with the following
observation, however. Any trial counsel who invades the province
of the jury by characterizing a party or a witness as a liar or his
testimony as lies, is treading on thin ice, indeed. Was there not
overwhelming evidence of Arlington's use of excessive force and of
his guilt, and was there not substantial medical, physical and
corroborative evidence independent of the testimony of the
defendant and the victim, the prosecution in this case might well
be looking forward to a new trial by reason of the prosecutor's
comments.
h. Arlington argues that his case should be dismissed because
of prosecutorial misconduct, in that the prosecutor knowingly used
an incompetent witness at his sentencing hearing. He contends that
the sentencing court relied on her testimony to excessively
sentence him. The State asserts that there was no indication in
the record that the witness was incompetent to testify at the
hearing nor did Arlington object to her testimony.
A review of the record demonstrates that Arlington did not
object to the witness' testimony at the time of the sentencing
hearing, December 30, 1992. In general, the failure to object
constitutes a waiver of the objection under § 46-20-104, MCA.
Exceptions to this rule are provided by 5 46-20-701, MCA, discussed
above.

41
 The witness' testimony at issue here does not fall under any
of the exceptions allowed under § 46-20-701, MCA. At trial,
Arlington's attorney questioned the witness about being under the

care of a mental health professional and her use of the drug,

Prozac. He also asked her if she had a clear memory. Furthermore,

since Arlington's attorney had some knowledge that she had some

mental health problems, her mental health condition was not,
therefore, being suppressed, the right to object to her testimony

did exist at the time of the hearing and Arlington knew sufficient
facts about the witness' mental status that, if he determined

additional facts were necessary, he could have ascertained those

with reasonable diligence.
Obviously, Arlington had enough information about the witness

to have some concerns over her competency as a witness in light of

his questions to the witness. At that point, Arlington's attorney
should have objected to her testimony or requested an examination

of the witness regarding her competency to testify. State v.

Stephens (1982), 198 Mont. 140, 141, 645 P.2d 387, 388.

Rule 601, M.R.Evid., governs the competency of witnesses. It

provides:

(a) General rule competency. Every person is competent
to be a witness except as otherwise provided in these
rules.
(b) Disqualification of witnesses. A person is
disqualified to be a witness if the court finds that (1)
the witness is incapable of expression concerning the
matter so as to be understood by the judge and jury
either directly or through interpretation by one who can
understand the witness or (2) the witness is incapable of
understanding the duty of a witness to tell the truth.

A review of the witness' testimony convinces us that the

42
witness was capable of expressing herself as to the matter at issue
in a way that could be understood by the judge. Additionally, she
seemed to know the importance of telling the truth. Her testimony

did not seem bizarre or irrational.

In an earlier Montana case discussing the competency of a

witness, this Court stated:

The rules of evidence were enacted on July 1, 1977.
Prior to that the Montana statute provided that those of
unsound mind could not be witnesses. Section 93-701-
3(1) I R.C.M.1947. Even with that statute this Court held
that "there is no presumption that a witness is
incompetent and the burden is on the party asserting
incompetency to prove it." The enacting of the rules in
1977 did not create any presumptions. The defendant is
required to prove incompetency and it is the function of
the trial judge to determine the competency of the
witness to testify.
The Defendant did not submit any additional evidence
of incompetency beyond the 1975 and 1976 Warm Springs
State Hospital evaluation. While these reports show 1976
diagnoses of mental disorders, the reports also indicate
that he was very much improved. In and of themselves,
these reports are not sufficient to require a conclusion
that the witness was incompetent, incapable of expressing
himself concerning the matter, or incapable of
understanding the duty to tell the truth.

Stevhens, 645 P.2d at 389-390. (Citation omitted.) In Stevhens,

there were medical reports to indicate that the witness, Bex, had

mental health problems and had been deemed unfit to proceed in his

own criminal proceedings. However, he was found competent to

testify at the criminal proceedings against Stephens, Bex'

accomplice, after attorneys for both sides conducted an examination
of his competency to testify and he then did provide testimony at

Stephens' trial.

At the time of the instant witness' testimony, there were not

even medical reports or other forms of evidence, such as those

43
reviewed in SteDhens, to provide a basis for questioning the

witness' competency. There was no evidence that she was incapable
of expressing herself or incapable of understanding her duty to

tell the truth. This Court will not presume a witness is
incompetent to testify; the defendant is required to prove

incompetency and in the instant case, he did not so prove.

Stevhens, 645 P.2d at 389. We conclude that the defendant did not

carry his burden to prove that the witness was incompetent.
Therefore, it was not prosecutorial misconduct to present the

woman's testimony at the sentencing hearing.

i. The final issue regarding the alleged misconduct of the
prosecution involves the prosecutor's suggestion during voir dire

that Arlington had alternatives to defending himself, his son and

his home. Arlington contends that the prosecutor should not have

questioned him about why he did not retreat when DeKoning came to
his house, because in Montana, there is no duty to retreat. The

State counters that the prosecution never stated that there was a

duty to retreat: she merely questioned whether Arlington's opening

the door to DeKoning under the circumstances was reasonable. Also,

the State insists that Arlington should have objected to the

prosecutor's comments if he was concerned about prosecutorial

misconduct.

The prosecution did mention alternatives to leaving the

trailer to meet DeKoning face to face in voir dire, her cross-

examination of Arlington and in her closing argument. However, at

no time did Arlington object to her comments. As stated above,

44
pursuant to § 46-20-104, MCA, if Arlington failed to object, he
cannot raise the issue for the first time on appeal, unless he

meets the criteria for an exception under § 46-20-701, MCA, or in

very rare instances, this Court invokes the "plain error" doctrine.
The exceptions under 5 46-20-701(2), MCA, include instances

where the right asserted in the claim did not exist at the time of

trial, the prosecutor, the judge or a law enforcement agency

suppressed evidence, or material facts upon which the claim is

based were unknown to the defendant and could not have been

ascertainedwith reasonable diligence. Section 46-20-701(2)(a),(b)
and (c), MCA. Clearly, none of these exceptions apply to this

claim.
Moreover, the "plain error" doctrine is invoked only in rare

cases to prevent manifest injustice. State v. Voegele (1990), 243

Mont. 222, 224, 793 P.2d 832, 834. In this case, the prosecutor

did not state that there is a duty to retreat in Montana: she

merely questioned whether there might have been alternatives to

Arlington's decision to open the door. In view of Arlington's

claim of justifiable use of force, his knowledge of DeKoning's

drinking that evening and his sometimes violent behavior, it was

not inappropriate to determine whether the defendant could have

made other choices. The prosecutor's conduct was not so outrageous

as to indicate a "plain error." Rodqers, 849 P.2d at 1032. We

conclude that Arlington's failure to object at trial constitutes a

waiver of his present claim.

In conclusion, we hold that substantial rights of the

45
defendant were not violated due to prosecutorial misconduct. In

total, any errors by the prosecution are harmless in the face of

the overwhelming evidence to support Arlington's conviction.

ISSUE NINE
Did the District Court err by sentencing Arlington under the

weapon enhancement statute?
Arlington claims that he should not have been sentenced under

the weapon enhancement statute because no weapon was charged, there

was no proof that a weapon was used and there was no real notice of
intent to use the weapon enhancement statute. The State contends
that it alleged the use of a weapon in its affidavit for leave to

file an information, testimony showed that a weapon was used in the
assault and Arlington had actual notice that his use of a weapon

would be considered by the District Court at sentencing.

The applicable portion of the weapon enhancement statute

reads:
(1) A person who has been found guilty of any
offense and who, while engaged in the commission of the
offense, knowingly displayed, brandished, or otherwise
used a firearm, destructive device, as defined in 45-8-
332(1), or other dangerous weapon shall, in addition to
the punishment provided for the commission of such
offense, be sentenced to a term of imprisonment in the
state prison of not less than 2 years or more than 10
years, except as provided in 46-18-222.
SeCtiOn 46-18-221(l), MCA.

Due process requires the State to provide some notice to the

defendant in the charging document if a sentence will be enhanced

because of the use of a weapon, "if the issue is not inherent in
the definition of the substantive charges." State v. Krantz

46
(1990) I 241 Mont. 501, 512, 788 P.2d 298, 305.
In the instant case, Arlington's use of a weapon was neither
referred to in the information nor did the charge of aggravated

assault necessarily entail the use of a weapon. Accordingly, the
State's failure to allege the use of a weapon in the charging

document was error. As in Xrantz, however, we conclude that the
error was harmless.

Here, the State provided hand delivered notice to Arlington on

the evening before his December 30, 1992 sentencing, that it would

seek an enhanced sentence due to his use of a weapon in the

commission of the aggravated assault. Arlington's argument that

this notice was too little, too late, however, is without merit.

Although the information did not provide that a weapon was
used in the commission of the aggravated assault, the affidavit for

leave to file an information included reference to the use of a
weapon, stating:

The Defendant swung at him with something the victim
described as resembling a 2x4 or a baseball bat. The
first swing sent the victim to the ground. After that
the Defendant continued to beat the victim, until the
victim lost consciousness... .When [Deputy] Tadman spoke
with the ambulance attendants, he was told that the
victim was suffering head lacerations and that the victim
said he had been hit with a bat.

Additionally, there were numerous references to the use of a

bat or a blunt object during the course of the trial. The

prosecutor referred to a bat during her opening statement, and the

victim related that the defendant attacked him with a bat. Witness

Elam testified that she heard the sound of very hard hitting,

similar to the sound of a bat hitting a sandbag. Dr. Gallea stated

47
that the pattern of the injuries suggested that something that was
heavy and elongated and relatively even in its pattern was used in
the beating since the bruises had an elongated symmetrical even
pattern. Dr. Schaefer stated that in his opinion, the injuries
were inflicted by the use of a "long, cylindrical object." Dr.
Gorsuch stated that the injuries were "more consistent with a hard
object such as a baseball bat."
Moreover, in its Judgment of Conviction and Sentencing Order,
the District Court found evidence during the trial to be suggestive
of injuries sustained by the use of a weapon, stating:
Although the defendant denies using any type of dangerous
weapon in connection with the assault, the Court finds
from the evidence presented at the trial (especially the
medical testimony) that some type of hard object must
have been used to inflict the injuries sustained by the
victim. A baseball bat was referred to during trial but
no baseball bat was introduced into evidence. However,
the Court would find that a dangerous weapon in the form
of either a baseball bat, or a two-by-four, or a baton,
was used by ,the defendant in this case.
The above statements suggest that the defendant had "actual
notice" that the State, as per § 46-18-221, MCA, would seek to have
Arlington's sentence enhanced. The notice provided here was found
to be sufficient in Xrantz, 788 P.2d at 305-306. The Krantz Court
stated that the fact that the State alleged use of a weapon in its
affidavit and motion for leave to file an information, and the use
of a weapon was alluded to in testimony, sufficiently notified the
defendant that the use of a weapon would be considered at
sentencing.
We find the situation here to be substantially similar, and
hold that the failure to allege the use of a weapon in the charging
48
document was harmless error and did not violate Arlington's right
to due process because the defendant had actual notice that his

sentence could be enhanced because of the use of a weapon.

ISSUE TEN

Were Arlington's constitutional rights violated because he was

sentenced under the weapon enhancement statute rather than through

the charge of felony assault with a weapon?

Arlington declares that he should have been charged with

felony assault with a weapon, rather than aggravated assault and
the weapon enhancement statute because felony assault is a lesser

included offense of aggravated assault. The State replies that

felony assault is not a lesser included offense of aggravated

assault. We agree.

The test for 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, 76 L.Ed.
306, to be:

. ..where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test
to be applied to determine whether there are two offenses
or only one, is whether each provision requires proof of
a fact which the other does not.

Iannelli v. United States (1975), 420 U.S. 770, 785, fn. 17, 95
S.Ct. 1284, 1294, fn. 11, 43 L.Ed.2d 616, 627, fn. 11, further

explained the Blockburser test, stating:

If each requires proof of a fact that the other does
not, the Blockburger test is satisfied, notwithstanding
a substantial overlap in the proof offered to establish
the crimes.

Therefore, in order to determine whether felony assault is a

49
lesser included offense of aggravated assault, we must ascertain

whether each charge requires proof of a fact that the other does

not. State v. Madera (1983), 206 Mont. 140, 151, 670 P.Zd 552,
558.

Section 45-5-202(2), MCA, defines felony assault and provides:

(2) A person commits the offense of felony assault
if he purposely or knowingly causes:
(a) bodily injury to another with a weapon;
(b) reasonable apprehension of serious bodily injury
in another by use of a weapon: or
(c) bodily injury to a peace officer or a person who
is responsible for the care or custody of a prisoner.
Section 45-5-202(l), MCA, defines aggravated assault and
provides:

(1) A person commits the offense of aggravated
assault if he purposely or knowingly causes serious
bodily injury to another.

Arlington insists that subsection (2)(a) applies to him and is

a lesser included offense of subsection (l), aggravated assault.

The elements of subsection (2)(a) are: 1)purposely and knowingly;

2)causes bodily injury; 3)to another; and 4)with a weapon. The

elements of subsection (1) are: 1)purposely and knowingly: 2)

causes serious bodily injury: and 3)to another. Serious bodily

injury and bodily injury are not the same element. "'Bodily

injury' means physical pain, illness, or any impairment of physical

condition and includes mental illness or impairment." Section 45-

2-101(5), MCA. 'lbSerious bodily injury' means bodily injury which

creates a substantial risk of death or which causes serious

permanent disfigurement or protracted loss or impairment of the
function or process of any bodily member or organ. It includes

50
serious mental illness or impairment." SeCtiOn 45-2-101(59), MCA.
Here, there was overwhelming medical evidence, with two broken

legs, a broken arm, a serious head injury with some permanent brain
damage and hearing loss, that DeKoning suffered serious bodily
injury, not bodily injury.

Even though there may be substantial overlap in the proof
which would be offered to establish both crimes, serious bodily

injury, an element of aggravated assault, requires proof of

different facts than does bodily injury, an element of felony
assault. Madera, 670 P.2d at 558. See also State v. Albrecht
- -

(1990) I 242 Mont. 403, 407-408, 791 P.2d 760, 763.
Additionally, subsection (2)(a) requires that a person cause

bodily injury to another with a weanon. However, the crime of

aggravated assault does not contain the element - with a weapon.

See § 45-5-202(l), MCA. There is, thus, an additional element

which must be proven to convict a person of felony assault under

subsection (2)(a) that is not required for proof of the offense in

subsection (1). 'The Blockburser test is met and felony assault is

not a lesser included offense of aggravated assault. Madera, 670

P.2d at 558.

Finally, "[w]hen the facts of a case support a possible charge

of more than one crime, the crime to be charged is a matter of

prosecutorial discretion." State v. Mahoney (1994), - M o n t . -,

__ P.2d -8 51 St.Rep. 160, 162. See also State v. Booke (1978),
- -
178 Mont. 225, 230, 583 P.2d 405, 408. We hold that Arlington's

constitutional rights were not violated when he was charged with

51
and convicted of aggravated assault and his sentence was enhanced

under the weapon enhancement statute.
ISSUE ELEVEN

Did the District Court err when it failed to order a new

sentencing due to irregularities at sentencing?

Arlington maintains that the District Court erred when it

failed to order a new sentencing due to irregularities at the

sentencing hearing, including the testimony of an incompetent

person. The State argues that the District Court did not have

jurisdiction to decide whether the appellant was entitled to be
resentenced. We agree with the State.

On December 30, 1992, the District Court sentenced Arlington

to ten years in the Montana State Prison, with six years suspended,
and two years in prison for the use of a dangerous weapon. That

same day, Arlington filed a notice of appeal to this Court.

On February 24, 1993, Arlington filed a motion and brief
before this Court requesting this Court to stay the appeal until

the District Court conducted a hearing on his motion for a new

trial based on newly discovered evidence. On March 16, 1993, this

Court granted Arlington's motion to remand the case to the District

Court to hear his motion for a new trial. The case was not

remanded for the resolution of any other motion or issue.

However, on May 21, 1993, the District Court conducted a

hearing wherein it considered Arlington's motion for a new trial,

his motion for dismissal due to prosecutorial misconduct, and his

motion for resentencing. The District Court && jurisdiction of

52
the Arlinston case at the time that he filed his notice of appeal
to the Montana Supreme Court. State v. Laverdure (1984), 212 Mont.

31, 32, 685 P.2d 375, 376. See also Julian v. Buckley (1981),
- - 191

Mont. 487, 491-492, 625 P.2d 526, 528. ("[Wlhen a notice of appeal
has been filed, jurisdiction . ..passes from the District Court and

vests in the Supreme Court. It becomes the Supreme Court's duty to

maintain the status guo of the parties until the controversy can be

determined.")

The only issue which the Supreme Court remanded to the
District Court was the motion for a new trial based on newly

discovered evidence. The District Court did not have jurisdiction

to decide any other issue, including resentencing. We hold that

the District Court did not have jurisdiction to decide whether
Arlington should have been resentenced. Accordingly, Arlington

cannot predicate error on the court's failure to resentence.
ISSUE TWELVE

Did the District Court err when it failed to find an exception

to the mandatory minimum sentencing for aggravated assault?

Arlington contends that two of the exceptions to the mandatory

minimum sentencing statute apply in his case. The State replies

that the mandatory minimum statute does not apply because Arlington

was not sentenced to the minimum standard sentence. It also argues

that neither the substantial mental impairment nor the duress

exceptions apply in the instant case, even if this Court decided

this issue on the merits.
Section 45-5-202(3), MCA, provides that "[a] person convicted

53
of aggravated assault shall be imprisoned in the state prison for
a term of not less than 2 years or more than 20 years and may be

fined not more than $50,000, except as provided in 46-18-222." In

the instant case, Arlington was sentenced to ten years for the

aggravated assault, with six years suspended, plus two years for

the use of a weapon in the assault. Section 46-18-222, MCA,

provides for six exceptions to mandatory minimum sentences.
The State cites State v. Stroud (1984), 210 Mont. 58, 683 P.2d

459, and State v. Nichols (1986), 222 Mont. 71, 720 P.2d 1157, for
the proposition that when a sentencing court does not intend to

sentence the defendant to the minimum sentence, the exceptions of

5 46-18-222, MCA, do not apply. Stroud states that "[blecause the

judge was not disposed to give the minimum sentence, there is no

chance that he would have given less than the minimum sentence."

Stroud, 683 P.2d at 469. Therefore, the Stroud Court found § 46-

18-222, MCA, inapplicable. In Nichols, this Court stated, "the

purpose of the statute is to allow a judge who would otherwise have

to pronounce the minimum sentence, to sentence a defendant to less

than the minimum sentence when the exceptions apply to the facts."

Nichols, 720 P.2d at1164. Clearly, the mandatory minimum sentence

exceptions statute does not apply unless a sentencing court is

considering imposing the mandatory minimum sentence and one or more

of the exceptions possibly apply. In the instant case, the

sentencing court did not sentence Arlington to the minimum sentence

of two years, rather he was sentenced to ten years in the state

prison with six years suspended.

54
 In this case, the District Court did conduct a hearing under

5 46-18-223, MC!A, to determine if the argued exceptions,
subsections (2) and (3) of § 46-18-222, MCA, applied. It concluded
that the defendant's mental capacity was not substantially impaired

to the extent that it would bring Arlington within the exception of

§ 46-l&222(2), MCA, nor was Arlington under unusual and
substantial duress to bring him within the exception of 5 46-18-

222(3), MCA. Although this Court does not have to address the
ruling on the hearing because § 46-18-222, MCA, does not apply in
the instant case, we do conclude that the evidence, in total,
supports the District Court's conclusion that subsections (2) and
(3) of § 46-18-222, MCA, were not applicable in Arlington's case.

We hold that the District Court did not err in failing to apply the

exceptions to the mandatory minimum sentence here.

AFFIRMED.

We Concu

55
 May 16, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid,
to the following named:

Channing J. Hartelius
Hartelius, Ferguson & Baker
P.O. Box 1629
Great Falls, MT 59403-1629

Brant S. Light
Attorney at Law
2000 Sixth Ave. No.
Great Falls, MT 59401

Hon. Joseph P. Mazurek
Attorney General
Justice Bldg.
Helena, MT 59620

Patrick L. Paul, County Attorney
Deborah Kim Christopher, Deputy
Cascade County Courthouse
Great Falls, MT 59401

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA