96-042
No. 96-046
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Respondent,
vs.
MARTIN ROMANNOSE,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell C. Fagg, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Mark T. Errebo, Deputy Public Defender, Billings,
Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Jennifer
Anders, Assistant Attorney General, Helena, Montana;
Dennis Paxinos, Yellowstone County Attorney, Dale
Mrkich, Deputy Yellowstone County Attorney,
Billings, Montana
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Submitted on Briefs: July 11, 1996
Decided: January 17, 1997
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
Defendant Martin Romannose (Martin) appeals from a judgment
and commitment entered in the Thirteenth Judicial District Court,
Yellowstone County, imposing a five-year sentence at the Montana
State Prison upon his conviction for felony escape. We affirm.
We restate the following issues on appeal:
1. Did the District Court properly deny Martin's motion for
a directed verdict?
2. Did the District Court err in admitting the State's
exhibits into evidence?
3. Did the State's questions and closing argument
impermissibly shift the burden of proof to Martin?
4. Did the District Court properly sentence Martin under
45-7-306, MCA?
FACTUAL AND PROCEDURAL BACKGROUND
Defendant Martin Romannose (Martin) began serving a ten-year
plus a three-year consecutive sentence at the Montana State Prison
on February 6, 1991. In August 1992, Martin was paroled, but
returned to the Montana State Prison in April 1993 due to a parole
violation. His parole was subsequently revoked. Later in 1993,
Martin was transferred to a pre-release facility, known as Alpha
House, located in Billings, Montana. Alpha House is a facility for
inmates of the Montana State Prison or a federal penitentiary who
are working toward probation or parole status. Alpha House is
administered by a private corporation known as Alternatives, Inc.
Before entering Alpha House, Martin signed a pre-release
referral form whereby he acknowledged that he was a Montana State
Prison inmate and that any unauthorized absence from Alpha House
constituted felony escape carrying a ten-year consecutive sentence.
Additionally, in the recommended case disposition from the Board of
Pardons, Martin signed a statement that he understood he was
subject to "official detention" until paroled. In February 1994,
the Board of Pardons conditionally granted Martin parole upon
successful completion of pre-release. However, Martin did not
complete this condition because of the incident at issue.
While at Alpha House, Martin was approved for "live-out"
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status which allowed him to maintain his own residence while still
being subject to the same conditions as if he were residing at
Alpha House. That is, Martin was still required to check into
Alpha House once a day and abide by its rules such as urinalysis
and alcohol testing. On April 9, 1994, Martinþs employer sent him
home from work for drinking on the job. Alpha House personnel were
informed of this incident, checked up on Martin at his residence
and conducted a breathalyser test. Later that same day, they
conducted another breathalyser test on Martin at the Alpha House.
Both tests were positive for alcohol consumption.
Alpha House immediately made arrangements to transport Martin
to jail, and, while such arrangements were in progress, Martin
walked away from Alpha House without permission. Not until May 16,
1994, was Martin finally found and arrested in Spokane, Washington
and eventually returned to Montana. Martin was charged by
information with felony escape pursuant to 45-7-306, MCA, in the
Thirteenth Judicial District Court, Yellowstone County. On October
25, 1995, after a jury trial, Martin was convicted of the charge.
On November 21, 1995, the District Court sentenced Martin to five
years imprisonment at the Montana State Prison to run consecutively
with his current sentence. From this judgment and commitment,
Martin appeals. We affirm.
DISCUSSION
1. Did the District Court properly deny Martin's motion for
a directed verdict?
At the close of the evidence, Martin moved for a directed
verdict based on the grounds that the State failed to prove the two
essential elements of felony escape as defined in 45-7-306, MCA:
(1) Defendant was subject to "official detention" and (2)
Defendant acted purposely or knowingly. The District Court denied
Martin's motion.
Section 46-16-403, MCA, allows a trial court to direct a
verdict of acquittal and dismiss a criminal charge at the close of
the evidence when the evidence is insufficient to support a guilty
verdict. State v. Johnson (1996), 276 Mont. 447, 450, 918 P.2d
293, 294. We review a trial court's denial of a motion for a
directed verdict to determine whether, after reviewing the evidence
in a light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt. Johnson, 918 P.2d at 294. Because a district
court's decision to direct a verdict at the close of the State's
case lies within the sound discretion of the district court, it
will not be disturbed on appeal absent an abuse of that discretion.
State v. Mummey (1994), 264 Mont. 272, 276, 871 P.2d 868, 870.
Martin argues that the State failed to present any evidence
that he was subject to "official detention" and that he acted
purposely or knowingly. Martin contends that he presented evidence
that he was not subject to "official detention," but rather was on
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parole status, and, therefore, the District Court should have
granted his motion for directed verdict. The State responds that
it presented evidence showing that Martin was subject to "official
detention" and that this evidence was sufficient to withstand
Martin's motion for a directed verdict.
Under 45-7-306(1), MCA, "official detention" is defined to
include "placement in a community corrections facility or program."
Alpha House, as a pre-release center, is a "community corrections
facility or program." See State v. Chandler (1996), 922 P.2d 1164,
1166, 53 St.Rep. 774, 776. Therefore, as a resident of Alpha
House, Martin was subject to "official detention."
Martin contends that the State did not present evidence that
while on "live-out" status with Alpha House, he was still involved
in a community corrections program as contemplated by 45-7-
306(1), MCA. However, we note that despite Martin's "live-out"
status, the evidence shows he was still considered a resident of
Alpha House and subject to its rules, including checking into Alpha
House once a day and submitting to periodic urinalysis and alcohol
testing. Consequently, the evidence shows that Martin was involved
with a "community corrections facility or program" and was thereby
subject to "official detention."
Martin also asserts that he was a parolee at the time he left
Alpha House, and, consequently, he was not subject to "official
detention" as defined by 45-7-306(1), MCA. However, no evidence
in the record supports this conclusion. In fact, all evidence
points to the contrary--that Martin was on inmate status and under
"official detention" as a resident of Alpha House. Specifically,
prior to his placement at Alpha House, Martin signed a pre-release
referral form whereby he acknowledged that any unauthorized absence
on his part from Alpha House would constitute felony escape.
Furthermore, Martin signed a recommended case disposition from the
Board of Pardons acknowledging that he was subject to "official
detention" until the Board of Pardons formally approved him for
parole.
Finally, Martin argues that the State failed to prove that he
acted "knowingly or purposely" when he left Alpha House and thereby
removed himself from official detention. We find this argument
unpersuasive. The documentation offered by the State clearly shows
that Martin was aware that he was subject to "official detention"
while a resident of Alpha House and that any unauthorized absence
on his part constituted felony escape.
Thus, we conclude that the State presented sufficient evidence
concerning Martin's "official detention" and his mental state to
allow this case to be submitted to the jury. Furthermore, we
conclude that the District Court did not abuse its discretion in
denying Martin's motion for directed verdict. Accordingly, we hold
that the District Court properly denied Martin's motion for
directed verdict.
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2. Did the District Court err in admitting the State's
exhibits into evidence?
The State offered three exhibits into evidence through one
witness who worked as Martin's case manager at Alternatives, Inc.
Exhibit 1, dated February 22, 1994, was a "Recommended Case
Disposition" from the Montana Board of Pardons, prepared and signed
by Jeff Walters, the executive secretary of the Board of Pardons.
Additionally, Exhibit 1 contained a statement signed by Martin
indicating that he understood he was subject to "official
detention" until paroled. Exhibit 2, dated February 24, 1994, was
a "Case Disposition" signed by two members of the Montana Board of
Pardons. Both exhibits showed that the Board of Pardons granted
Martin parole subject to completion of certain special conditions,
including completion of pre-release. Exhibit 3, dated June 7,
1993, was a "Pre-Release Referral" form prepared by Alternatives,
Inc. and signed by Martin. Exhibit 3 contained a statement signed
by Martin wherein he acknowledged that he was a Montana State
Prison inmate while at the pre-release facility and that any
unauthorized absence on his part constituted felony escape,
carrying a 10-year consecutive sentence. Martin objected to the
introduction of all three exhibits into evidence on the grounds
that the documents were hearsay and without foundation. The
District Court admitted all three exhibits under Rule 803(6),
M.R.Evid., the business records exception to the hearsay rule.
Martin argues that the District Court improperly admitted the
State's exhibits into evidence under Rule 803(6), M.R.Evid. Martin
contends that because the exhibits are from a public office or
agency, they are potentially admissible only under Rule 803(8),
M.R.Evid., the public records and reports exception to the hearsay
rule. Yet, Martin asserts that while Rule 803(8), M.R.Evid.,
provides an exception to the hearsay rule, it also states that
"factual findings offered by the government in criminal cases" are
not within this exception to the hearsay rule. Martin argues that
because the State's exhibits constitute such "factual findings"
under Rule 803(8), M.R.Evid., they would not qualify for admission
into evidence under this exception to the hearsay rule either.
Martin concludes that as stated in United States v. Cain (5th Cir.
1980), 615 F.2d 380, 382, "statements inadmissible as public agency
reports under Rule 803(8) may not be received merely because they
satisfy Rule 803(6)[;] . . . section (6) does not open a back door
for evidence excluded by section (8)."
The State responds that while its witness did not personally
prepare the documents, the proper foundation was laid for the
exhibits to be introduced into evidence. Specifically, Martin's
caseworker testified that he had personal knowledge of the facts
contained in the documents and that the documents were prepared
contemporaneously with those facts by a person with a business
relationship with Alternatives, Inc. Furthermore, Martin's
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caseworker testified that it was routine practice in the business
to prepare these documents and the documents were prepared in the
regular course of business. Therefore, the State argues that the
District Court properly admitted the exhibits under Rule 803(6),
M.R.Evid., because the exhibits clearly qualified as records of
regularly conducted business activities.
We conclude that Martin's argument is unpersuasive. Martin
provides absolutely no explanation as to why the State's exhibits
were not admissible under Rule 803(6), M.R.Evid. Our standard of
review concerning a district court's evidentiary rulings is whether
the district court abused its discretion. State v. Ford (1996),
926 P.2d 245, 249-50, 53 St.Rep. 947, 950. Upon our review of the
record, we conclude that the State laid the proper foundation for
the District Court to admit all three exhibits under Rule 803(6),
M.R.Evid., the business records exception to the hearsay rule.
Accordingly, we hold that the District Court did not abuse its
discretion by admitting the State's exhibits into evidence.
3. Did the State's questions and closing argument
impermissibly shift the burden of proof to Martin?
Martin contends that the State impermissibly shifted the
burden of proof to Martin when the State asked questions of its
witnesses regarding Martin's "inmate status," and thereby implied
that the State need only prove that Martin was an "inmate" as
opposed to proving that Martin was subject to "official detention."
Martin also claims that the State's closing argument was improper
because the State suggested that Martin had to prove that he was on
parole, and, consequently, was not subject to "official detention."
The State responds that Martin failed to make any objections
during the trial concerning the State's questions or closing
argument, and, therefore, Martin did not properly preserve this
issue for appeal under 46-20-701, MCA. However, after reviewing
the record, we note that Martin, in fact, did make objections
during and at the end of the State's closing argument concerning
this issue raised on appeal. Therefore, because Martin made timely
objections during trial, we will discuss the merits of this issue.
The State further responds that the jury was instructed that
it must find Martin was subject to "official detention" to warrant
a conviction and that the State in no way attempted to shift the
burden of proof to Martin. The State maintains that the evidence
it presented was sufficient to allow the jury to conclude that
because Martin was placed at the Alpha House, a community
corrections facility, he was subject to "official detention" at the
time of his escape. Furthermore, the State contends that any
testimony from its witnesses concerning Martin's inmate status was
relevant to refute Martin's claim that he was on parole at the time
of his escape. Finally, the State argues that during closing
argument, it accurately stated the law and never suggested that the
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jury could find Martin guilty of felony escape merely because he
was on "inmate status."
Upon consideration of the parties' arguments, we note that
this case was tried and argued prior to our decision in Chandler.
In Chandler, we affirmed a District Court's denial of a defendant's
motion to dismiss which was based on its conclusion of law that
because the defendant was subject to "official detention," the
State could prosecute him for felony escape under 45-7-306, MCA.
Chandler, 922 P.2d at 1165-66. We explained that Chandler's
conduct would only constitute escape, as proscribed by 45-7-306,
MCA, if the State could prove that Chandler knowingly or purposely
removed himself from or failed to return to "official detention" as
defined in 45-7-306(1), MCA. Chandler, 922 P.2d at 1165. Thus,
the main issue in Chandler was whether Chandler's placement in a
pre-release center constituted "official detention" as defined
under 45-7-306(1), MCA. After reviewing certain provisions of
the Montana Community Corrections Act, Title 53, Chapter 30, part
3, MCA, we concluded, as a matter of law, that a pre-release center
was a "community corrections facility or program," and, therefore,
Chandler's placement in the Butte Pre-release Center constituted
"official detention" under 45-7-306(1), MCA. Chandler, 922 P.2d
at 1166.
In the present case, the record reflects that the State
presented more than sufficient evidence to prove that Martin was a
resident of a pre-release center known as Alpha House, and,
therefore, was subject to "official detention" under 45-7-306(1),
MCA. See Chandler, 922 P.2d at 1166. Consequently, whether Martin
was also considered to be on "inmate status" was never an issue in
this case. Furthermore, the records shows that the State did not
misstate the law in its closing argument and that the jury was
properly instructed. Accordingly, we hold that the State's
questions and closing argument in no way shifted the burden of
proof in this case to Martin.
4. Did the District Court properly sentence Martin under
45-7-306, MCA?
Martin argues that the District Court improperly sentenced him
to five years at the Montana State Prison pursuant to the felony
provision of 45-7-306(3)(b)(i), MCA. Martin contends that the
District Court should have sentenced him under the misdemeanor
provision of 45-7-306(3)(c), MCA. Martin asserts that the facts
surrounding his alleged escape do not meet the requirements set
forth under 45-7-306(3)(b)(i), MCA. Therefore, relying on State
v. Nelson (1996), 275 Mont. 86, 910 P.2d 247, Martin maintains that
the District Court was precluded from sentencing him for a felony
offense.
The State responds that Martin ignores the evidence showing
that Alpha House is a community corrections facility or program and
that Martin, as a resident there, was subject to "official
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detention." Furthermore, the State argues that Martin does not
explain why Alpha House does not fall within 45-7-306(3)(b)(i),
MCA, or why Nelson is controlling. We agree.
As we discussed in Chandler, the facts of the case before us
are distinguishable from Nelson. See Chandler, 922 P.2d 1166-67.
In Chandler, we explained that because the facts in Nelson did not
comport with the plain language of 45-7-306(3)(b)(i), MCA, the
inmates' escape did not qualify as a felony offense. Chandler, 922
P.2d at 1167. That is, a Montana State Prison inmate who escapes
from a work assignment at the Deer Lodge Golf Course is guilty only
of misdemeanor escape because the golf course is not one of the
institutions or facilities listed in the felony escape provisions
of 45-7-306, MCA. Here, however, Martin's conduct, like
Chandler's, clearly falls within the plain language of 45-7-
306(3)(b)(i), MCA, which provides:
A person convicted of the offense of escape shall be . .
. imprisoned in the state prison for a term not to exceed
10 years if he has been charged with or convicted of a
felony and escapes from a . . . community corrections
facility or program. . ..
As we determined in Issues 1 and 3, Alpha House is a community
corrections facility and Martin, as an Alpha House resident, was
subject to "official detention." Furthermore, the evidence shows
that on April 9, 1994, Martin, a convicted felon, left Alpha House
without permission and thus committed the offense of felony escape.
See 45-7-306(2) and (3)(b)(i), MCA. The jury found Martin
guilty of felony escape and the District Court sentenced him to
five years at the Montana State Prison pursuant to 45-7-306
(3)(b)(i), MCA.
We review sentences for legality only. State v. Graves
(1995), 272 Mont. 451, 463, 901 P.2d 549, 557 (citing State v. Cope
(1991), 250 Mont. 387, 399, 819 P.2d 1280, 1287). A sentence is
legal if it falls within the range prescribed by the statute.
Graves, 901 P.2d at 557. Here, the sentence imposed by the
District Court falls within the range set forth in 45-7-
306(3)(b)(i), MCA (allowing for a maximum ten-year prison term).
Accordingly, we hold that the District Court properly sentenced
Martin under 45-7-306(3)(b)(i), MCA. To the extent that Martin's
complaints concern the equity of his sentence, those must be
addressed to the Sentence Review Division. Graves, 901 P.2d at 557
(citing State v. Lloyd (1984), 208 Mont. 195, 199, 676 P.2d 229,
231).
Affirmed.
/S/ JAMES C. NELSON
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We Concur:
/S/ J. A. TURNAGE
/S/ WILLIAM E. HUNT, SR.
/S/ W. WILLIAM LEAPHART
/S/ KARLA M. GRAY
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