NO. 93-215
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
ANTHONY CHRIS EICHENLAUB, a/k/a Tony
Eichenlaub, and TIMOTHY JOHN CARTER,
a/k/a/ Tim Carter,
Defendants and Appellants.
APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Powell,
The Honorable Byron L. Robb, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Defender Office,
Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Carol Schmidt, Assistant Attorney General,
Helena, Montana
Christopher G. Miller, Powell County
Attorney, Deer Lodge, Montana
Submitted on Briefs: March 30, 1995
Decided: August 15, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The defendants, Anthony Eichenlaub and Timothy Carter, were
charged with felony kidnapping, in violation of 5 45-5-302, MCA,
felony sexual intercourse without consent, in violation of
5 45-5-503, MCA, and misdemeanor assault, in violation of
§ 45-5-201, MCA. Following presentation of the State's evidence,
the District Court dismissed the charge of sexual intercourse
without consent by accountability which had been filed against
Eichenlaub. The defendants were found guilty of the other crimes
with which they had been charged. After the jury's verdict, the
District Court entered judgments of conviction, and sentenced each
defendant to the Montana State Prison. The defendants appeal from
the District Court's judgments and sentences. We affirm the
judgments and sentences of the District Court.
The issues on appeal are:
1. Did the District Court err when it admitted evidence that
Eichenlaub assaulted and injured Sue Maxie several days prior to
the date of the crimes charged?
2. Did the District Court abuse its discretion when it
designated the defendants dangerous offenders for purposes of
parole?
3. Did the District Court appropriately consider and discuss
alternatives to imprisonment for Eichenlaub?
FACTUAL BACKGROUND
Sue Maxie and Tony Eichenlaub were involved in a turbulent and
sometimes physically abusive relationship beginning approximately
in February 1992. During their relationship, Sue and Tony
separated and reunited several times. From sometime in May to
June 9, 1992, Sue lived with Eichenlaub on his mother's ranch near
Ovando.
On approximately June 5 or 6, 1992, Sue visited her friend
Sheila Welsh in Missoula. Sheila testified that at that time she
noticed Sue's face was bruised and that hair was missing from the
side of her head. Sue's ex-husband, Robert Maxie, testified that
he also saw Sue on June 5 or 6, 1992, and observed similar bruises
and missing hair. Sheila and Robert testified that they were
concerned about Sue's safety because of the injuries they observed.
As a result of their concern, Sheila and Robert decided to
help Sue leave the ranch. On June 9, 1992, Sheila and Robert drove
Robert's car to the Ovando area on two different occasions. On
their first trip, Sheila did not find anyone at the ranch, but left
notes for Sue. Sheila and Robert then drove back to Missoula,
where they received a telephone call from Sue. They discussed with
her a plan to help her leave the ranch, and returned to Ovando to
assist her. Sheila dropped Robert off at Clearwater Junction and
drove to the ranch property. Sheila testified that when she
arrived at the ranch, Sue opened the gate for her and then climbed
into Robert's car with her. Sheila testified that Carter was also
standing near the gate and advised them that they could not leave
until they told Eichenlaub of their intentions.
Sheila and Sue drove to a cabin where Eichenlaub had been
sleeping to advise him they were leaving. They testified that a
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physical altercation followed, during which they were beaten by the
defendants.
After this incident, Sheila testified that Carter took her
outside where he assaulted her, and ultimately to a trailer where
he forced her to have sexual intercourse. Sheila testified that
when Eichenlaub came into the trailer, she asked him for help, but
that he responded that she was getting what she deserved. Sue
testified that Eichenlaub took her to the trailer where Sue
observed Sheila and Carter lying naked in the bed and noticed that
there was blood on Sheila's face and on the pillow.
Eventually Sue walked to the highway where she stopped a
passing truck driver and asked for a ride. However, while she was
climbing into the truck, Eichenlaub pulled her down from the truck
and took her back to the ranch. The truck driver called 911 to
report the incident at a nearby phone booth.
Robert Maxie testified that sometime during the several hours
that had transpired that evening he jogged and walked from
Clearwater Junction to the ranch and hid in the back of his car.
Finally, Sheila and Sue were able to get into the car, left through
a gate which had been recently opened, and returned to Missoula.
On June 12, 1992, Sheila and Sue traveled to Deer Lodge to
report what had happened to the police. Later that day, the
defendants were arrested and were subsequently charged by
information with kidnapping, in violation of § 45-5-302, MCA,
sexual intercourse without consent, in violation of 5 45-5-503,
MCA, and misdemeanor assault, in violation of 5 45-5-201, MCA.
4
At trial, after the State presented its evidence, the District
Court dismissed the charge of sexual intercourse without consent by
accountability which had been filed against Eichenlaub. The jury
found the defendants guilty of the remaining charges. The District
Court entered judgments of conviction against the defendants, and
designated both dangerous offenders. Eichenlaub was sentenced to
the Montana State Prison for six months for assault, and six years
for kidnapping. The sentences are to be served concurrently.
Carter was sentenced to the same terms as Eichenlaub for the
assault and kidnapping convictions, plus another four years for
sexual intercourse without consent. The additional four years are
to be served consecutively.
ISSUE 1
Did the District Court err when it admitted evidence that
Eichenlaub assaulted and injured Sue Maxie several days prior to
the date of the crimes charged?
The defendants contend that the District Court erred when it
allowed evidence of Eichenlaub's prior bad acts, because the State
failed to give the defendants prior notice of its intent to offer
the evidence. &tev.MuN (1991), 249 Mont. 136, 814 P.2d 52;Stutev.
Croteau (lYYl), 248 Mont. 403, 407, 812 P.2d 1251, 1253; statev. Just
(19791, 184 Mont. 262, 602 P.2d 957. The four photographs at issue
show that Sue was missing clumps of hair and had scratches on her
face as a result of a physical altercation with Eichenlaub four
days prior to the date of the acts for which the defendants were
5
charged. Defendants objected to the photographs, stating they were
irrelevant "because it has already happened way before this
incident even took place." Although they did not specifically
mention Rule 404(b), M.R.Evid., we will construe their objection as
based on that rule.
The State responds that the photographs were admissible as
part of the res gestae or corpus delicti, but that if the court erred when
it admitted the photographs, the error was not prejudicial. We
agree that any error was not prejudicial.
Section 46-20-701, MCA, states, in relevant part, that "[n]o
cause shall be reversed by reason of any error committed by the
trial court against the appellant unless the record shows that the
error was prejudicial." When prejudice is alleged in a criminal
case the prejudice will not be presumed, rather, it must be
established from the record that a substantial right was denied.
statev. We’elh (1983), 202 Mont. 337, 349, 658 P.2d 381, 388. In Wells,
we also stated that the test is whether there is a reasonable
possibility that the inadmissible evidence might have contributed
to a conviction. wells, 658 P.2d at 388 (citing statev. Lab’e (1977),
174 Mont. 401, 407, 571 P.2d 97, 101); %atev.Bower (1992), 254 Mont.
1, 6, 833 P.2d 1106, 1109. In Bower, we added that when assessing
the potentially prejudicial effect of an error, we examine the
totality of the circumstances in which the error occurred. If the
issue involves inadmissible evidence, we will not evaluate the
6
evidence in isolation because that would risk magnifying the error
beyond the impact it had on the verdict. Bower, 833 P.2d at 1109.
With these principles in mind, and after a thorough review of
the transcript, we conclude that admitting the photographs did not
constitute prejudicial error. The photographs show injuries Sue
received from fights she had with Eichenlaub on June 5, 6, or 7.
She testified that the photographs were taken by the police on
June 12 behind the police station in Deer Lodge after Sue and
Sheila reported the events that occurred on June 9.
At trial, during Sue's testimony, the State moved to admit the
photographs. The defendants, who had declined the public
defender's representation to represent themselves, objected.
Before the photographs were admitted, and in the presence of the
jury, Carter was allowed to voir dire Sue regarding the photographs.
Carter asked Sue, "[alnd isn't it true that you said that on June
5th 'Tony pulled hair out of the sides of my [Sue's] head."' Later
he asked, "[oln another time, you said that 'On June 7th Tony
pulled hair out of the top of my [Sue's] head.' Is that true?" He
added, "[a]nd scratched my [Sue's] face?" Sue responded that what
Carter stated in voirdire was true. After dismissing the jury and
hearing arguments, the court admitted the photographs.
Before the photographs were admitted, Carter's voir dire
explained what the photographs illustrated. Additionally, and
without objection, Sue had previously responded to one of the
State's questions about the events of June 9 by stating that, "by
then Sheila was mad, she had seen what Tony had already done to me,
the scratches on my face, the hair pulled out . .I' Therefore,
before the photos were admitted, and without objection by the
defendants, the jury was aware of the prior attacks, the dates on
which they occurred, and the nature of the injuries sustained. The
photographs did not inform the jury of anything they did not
already know.
Without reaching the merits of the State's resgestae argument,
we conclude that even if the admission of evidence of Eichenlaub's
earlier attacks was in violation of Rule 404(b), under the totality
of the circumstances, it was not prejudicial error.
ISSUE 2
Did the District Court abuse its discretion when it designated
the defendants dangerous offenders for purposes of parole
eligibility?
We review a district court's dangerous offender designation to
determine whether the district court abused its discretion. state v.
Buckman (1989), 236 Mont. 37, 41, 768 P.2d 1361, 1363.
The defendants contend that the District Court abused its
discretion when it designated them dangerous offenders because it
made no findings to support such a designation, and there was no
evidence to support such findings if they had been made. Based on
our review of the record, and the District Court's findings in
support of its judgment, we disagree.
8
The designation of an offender as either dangerous or
nondangerous is governed by 5 46-18-404, MCA, which provides in
pertinent part:
(1) . [Tlhe sentencing court shall designate an
offender a nondangerous offender for the purposes of
eligibility for parole . . if:
(a) during the five years preceding the commission
of the offense for which the offender is being sentenced,
the offender was neither convicted of nor incarcerated
for an offense committed in this state or any other
jurisdiction for which a sentence to a term of
imprisonment in excess of 1 year could have been imposed;
g-&
(b) the court has determined, based on any
presentence report and the evidence presented at the
trial and the sentencing hearing, that the offender does
not represent a substantial danger to other persons or
society.
(Emphasis added.) This statute sets forth a two-pronged test in
subparagraphs (a) and (b). If both are satisfied, a defendant must
be designated nondangerous. If one or the other prong is
satisfied, the district court may, in its discretion, designate the
offender as dangerous for purposes of parole. Buckman, 760 P.2d at
1363.
In Buckman we stated that, O[wl hen using its discretion to
determine offender status, the District Court 'may consider
persistence in criminal conduct and failure of earlier discipline
to deter or reform the defendant.'" Buckman, 768 P.2d at 1363
(quoting state v. Nichols (1986), 222 Mont. 71, 80, 720 P.2d 1157,
1163). The sentencing court must articulate its reasons for
designating an offender as dangerous, rather than merely recite the
9
statutory language of § 46-18-404(l) (a) and (b), MCA. Stutev.Morrison
(1993), 257 Mont. 282, 287-88, 848 P.2d 514, 517.
In each defendant's judgment of conviction and sentence, the
District Court incorporated its findings of fact entered after the
sentencing hearing. In its findings, the District Court set forth
reasons for its dangerous offender determination.
The District court articulated numerous reasons for
designating Eichenlaub as a dangerous offender. The court
identified his chemical dependency problem, and the fact that
despite treatment, he continued to drink and engage in unlawful
acts. It referred to numerous misdemeanor convictions and a
juvenile record. The District Court found that Eichenlaub's
behavior during trial demonstrated a lack of remorse, disrespect
for and defiance of the law and its officers, and a failure to
recognize that his unlawful actions were wrong. Finally, the
District Court found that he posed a threat to the public and the
victims.
The District Court also articulated its reasons for
designating Carter a dangerous offender. The court noted that he
also had a chemical dependency problem, yet despite treatment,
continued to drink and engage in unlawful acts. He had two prior
felony convictions in 1981 and 1982. His actions in the present
case involved physical abuse, restraint, and sexual intercourse
without consent. The District Court found that Carter's behavior
during the trial demonstrated lack of remorse, disrespect for and
defiance of the law and its officers, and a failure to recognize
10
that his unlawful actions were wrong. The District Court found
that he posed a threat to the public and the victims.
The District Court clearly articulated reasons in support of
its determination that the defendants presented a danger to society
and the victims. Its reasons are fully supported by the record.
We hold that the District Court did not abuse its discretion when
it designated the defendants dangerous offenders for the purposes
of parole.
ISSUE 3
Did the District Court fail to appropriately consider and
discuss alternatives to imprisonment for Eichenlaub?
Eichenlaub contends that the District court failed to
appropriately consider and discuss alternatives to his imprisonment
in violation of s§ 46-18-201(10), -225, -104(3), and -104(2), MCA
(1991), and therefore, that his sentence should be vacated and his
case remanded for resentencing.
The State responds that the District Court's reasons for
designating Eichenlaub a dangerous offender are sufficient to rule
out alternatives to imprisonment. We agree.
To require the District Court to consider alternatives to
imprisonment and specify the reasons why those alternatives were
not selected after the District Court has already designated a
convicted felon a dangerous offender exalts form over substance.
Of those criteria for determining whether "nonviolent"
offenders should be sentenced to prison which are set forth in
§ 46-18-225, MCA, the most conclusive consideration is found in
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subparagraph (1) which refers to the "needs of public safety." We
conclude that the needs of public safety were adequately considered
by the District Court when it set forth in its findings in support
of its sentence the reasons why it considered Eichenlaub dangerous.
Those findings include the following:
(15) Anthony Eichenlaub is now 21 years of age, of
low average intelligence with an 11th grade education, in
good health, has never married but has three children
whom he does not support, and very little work history or
experience. He seems to acknowledge having a drinking
and chemical dependency problem, and has previously gone
through the alcohol treatment program at Galen State
Hospital, but still continues to drink and create
problems for himself by unlawful actions.
(16) Mr. Eichenlaub has a lengthy juvenile record in
Missoula County, including sexual intercourse without
consent when he was 13 years old, and six misdemeanor
convictions since becoming of age, including resisting
arrest, and then a second DUI and two related
misdemeanors in Lewis and Clark County while he was out
on bond awaiting trial in this case. Tony's actions in
this case involved physical abuse and restraint of a
live-in girlfriend, Susan Maxie, and the evidence
indicated he had also been physically violent toward his
father.
. . .
(19) Neither defendant has shown any remorse
whatever to the victims herein, and the attitude of both
Carter and Eichenlaub in this whole proceeding has been
one of disrespect for and defiance of the law and its
officers, indifference to the needs of their children and
families, continual complaining of the criminal justice
system, unjustifiably placing the blame for what has
happened to them on others, and seeing nothing wrong with
their unlawful actions. As a result, and in view of
their prior records, the court finds both defendants pose
a verv real and substantial threat to the public in
qeneral, and the victims of the present case in
particular, and that thev are danoerous offenders, which
was stated orallv at sentencinq.
(Emphasis added.)
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1n addition, the court noted in its findings that both
probation officers who testified at the sentencing hearing
recommended prison terms for both defendants.
By these findings, the District Court did, as a practical
matter, satisfy the requirements of §§ 46-1%201(10) and -225, MCA.
To remand to the District Court for further findings to the same
effect would be redundant and would serve no practical purpose.
For these reasons, we affirm the judgments and sentences of
the District Court in their entirety.
We concur: