                            No.    94-504
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1995


STATE OF MONTANA,
          Plaintiff and Respondent,
     v.
RUDY STANKO,
          Defendant and Appellant.



APPEAL FROM:   District Court of the Thirteenth Judicial District,
               In and for the County of Yellowstone,
               The Honorable Russell K. Fillner, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Rudy Stanko, Pro Se, Laurel, Montana

          For Respondent:
               Hon. Joseph P. Mazurek, Attorney General,
               Kathy Seeley, Ass't Attorney General,
               Helena, Montana
               Dennis Paxinos, Yellowstone County Attorney,
               Dale R. Mrkich, Deputy Yellowstone County Attorney,
               Billings, Montana


                            Submitted on Briefs:       October 26, 1995
                                            Decided:   November 14, 1995
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.




     Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court

1995 Internal Operating Rules, the following decision shall not be

cited as precedent and shall be published by its filing as a public

document with the Clerk of the Supreme Court and by a report of its

result to Montana Law Week,          State    Reporter   and   West    Publishing

Company.

     Rudy Stank0 (Stanko) appeals from the judgment and sentence

entered    by   the   Thirteenth   Judicial   District   Court,       Yellowstone

County, on his conviction for five offenses.             We affirm.

     We restate the issues on appeal as follows:
     1.  Does the filing of charges via complaints, followed by a
judicial determination that probable cause existed to file the
charges, comport with Montana's Constitution and statutes?

     2.    Did the District Court's failure to hold an omnibus
hearing deny Stanko's due process rights?

     3. Did the District Court err in denying Stanko's motion for
appointment of counsel?

     4.    Is 5 45-7-302(l), MCA, unconstitutionally  vague and
overbroad on its face, or as applied to Stanko, and did the two
counts of obstructing a peace officer, filed pursuant to that
statute, violate Stanko's right to remain silent?

     5.  Can the State of Montana (State) fine Stank0 for driving
a vehicle not registered in Montana under the facts of this case?

     6. Did the District Court err in allowing the State to amend
a statutory reference in the complaint relating to an expired
registration?

      7.  Do 55 61-5-103 and 61-5-104(4), MCA, bar the State from
prosecuting Stank0 for driving without a valid driver's license in
violation of § 61-5-102, MCA?


                                       2
                            FACTS AND PROCEDURE
        Stank0 was cited into Justice Court in Billings, Montana, on
five charges arising from Separate lawful traffic stops on May 28

and May 30, 1993, by Montana Highway Patrol (MHP)          officers.   Two

identical charges--obstructing a peace officer and operating a

vehicle without a valid driver's license--resulted from each of the

two traffic stops; the fifth charge, operating a vehicle without a

valid    registration, stemmed from the May 28, 1993, stop.

        Following proceedings and a jury trial in Justice Court,

during     portions   of   which Stank0   was represented by a court-

appointed public defender, the jury found him guilty on all five

charges.     Pursuant to 5 46-17-311, MCA, Stank0 appealed to the

District Court for a trial de novo.

        A jury trial was held in the District Court and Stank0 was

again convicted of all the charged offenses.           The District Court

entered judgment on October 5, 1994.          Stank0 appeals.

                                 DISCUSSION

     1.  Does the filing of charges via complaints, followed by a
judicial determination that probable cause existed to file the
charges, comport with Montana's Constitution and statutes?

        Stank0 contends that commencing a prosecution by filing a

complaint     violates     both statute    and   the   Constitution;   his

fundamental premise seems to be that a grand jury indictment was

the mandatory method of initiating prosecution of the charges

against him. While Stanko's "argument" on this issue is relatively

lengthy,    it largely consists of rhetorical questions rather than

legal citation and analysis and does not address or distinguish

                                     3
controlling     authority.

      Article    II,    Section 20,   of the 1972 Montana Constitution
specifically provides that:

       [clriminal offenses within the jurisdiction of any court
      inferior to the district court shall be prosecuted by
      complaint.    All criminal actions in district court,
      except those on appeal, shall be prosecuted either by
      information,   after examination   and commitment by a
      magistrate or after leave granted by the court . . . .

Stank0 does not address this constitutional authorization for the

procedure used by the State in this case or even suggest that the

constitutionally authorized procedure was not followed here.

      Moreover, even absent specific constitutional authorization,

§ 46-11-201, MCA, statutorily authorizes a prosecutor to proceed in

district court via complaint or by information after leave of court

has   been   granted.      Stanko does not assert that the statutory

requirements were not satisfied.

      We have repeatedly and consistently held that criminal charges

brought by information, after a magistrate's hearing or by leave of

a district court, are authorized and permitted by both statute and

the Montana Constitution.       See, e.q., State v. Corliss (1967), 150

Mont. 40, 43, 430 P.2d 632,           634,    cert.   denied, 390 U.S. 961,

(1968). With regard to the United States Constitution, the United

States Supreme Court has stated that              "[elver   since Hurtado   v.

California, 110 U.S. 516 (1884),           this Court has consistently held

that there is no federal constitutional impediment to dispensing

entirely with the grand jury in state prosecutions."                 Beck v.

Washington (1962),      369 U.S. 541, 545, 82 S.Ct. 955, 957, 8 L.Ed.2d

98,   104.
                                       4
      Stanko presents no authority or analysis which attempts to

distinguish this body of authority, much less render it incorrect;

his argument on this issue is without merit.           We conclude that the
filing of complaints,       followed by a judicial determination that
probable cause existed to file the charges, comports with Montana

law and the Constitution.

     2.   Did the District Court's failure to hold an omnibus
hearing deny Stanko's due process rights?

      It is undisputed that the District Court scheduled an omnibus
hearing in this case and that the hearing did not take place.             It

also is undisputed that such a hearing is required by 5 46-13-110,

MCA, to expedite procedures leading up to the defendant's trial.

      Stanko contends that the failure to hold an omnibus hearing

denied him due process.          He presents no authority whatsoever for
his   conclusory   contention.       Such authority is required in an

appellant's    opening brief by Rule 23(a) (4),             M.R.App.P.   We

recognize that Stanko appears before us pro se and have made

reasonable accommodation for minor departures from the Montana

Rules of Appellate Procedure.          Stanko is hardly unfamiliar with

judicial    proceedings    and    procedures,    however,   and we will not
create an appellant's legal arguments for him or her.

      In any event,      as the State points out, this Court does not

reverse trial courts for error "unless the record shows that the

error was prejudicial[;l " we disregard any defect not affecting a

party's    substantial    rights.    Section 46-20-701, MCA.      Under the

statute, the party asserting the error clearly bears the burden of
establishing prejudice on the record.           Stanko makes no reference to

                                       5
anything in the record establishing that he was prejudiced by the

District Court's failure to hold an omnibus hearing; indeed, his

argument on this issue begins and ends with the bare allegation

that the failure "denied defendant due process in this case."

       We conclude that the District Court's error in failing to hold

an    omnibus hearing was harmless and did not affect Stanko's

substantial      rights.

     3 . Did the District Court err in denying Stanko's motion for
appointment of counsel?
       As noted above,         the Justice Court appointed counsel for
Stanko.      The court did so, notwithstanding Stanko's refusal to fill

out    the   application     for    court-appointed   counsel,   "in the best

interests and expedition of Justice. . . .I'            Thereafter,    Stank0
apparently discharged his counsel and the public defender's office

moved to withdraw from further representation.              The Justice Court

permitted the withdrawal and required Stank0 to comply with § 46-8-

111(Z) ,     MCA,   so that,       in turn, it    could make the required

"determination      of     indigence" pursuant to subsection (1) of that

statute.       Stank0 refused,      the court did not appoint counsel and

Stanko proceeded pro se.
       On appeal to the District Court, Stank0 moved for appointment

of    counsel.      After Stank0 refused to provide the information

required by § 46-E-111(2), MCA, the District Court denied his

motion and Stank0 continued pro se except for limited assistance

from a purported member of the Iowa bar.

       In essence, Stank0 concedes that he did not comply with the
statutory requirements, but argues that the constitutional right to

                                          6
counsel does not authorize or permit the State to decide not to

provide   counsel to a criminal defendant absent a showing of
indigence.       Stanko    presents       no    authority     under   which   the

constitutional   right    of   criminal    defendants    to   counsel   has   been

interpreted to mean that the State must provide counsel free of

charge to all criminal defendants or that every criminal defendant

who requests counsel at the State's               expense is absolutely and

constitutionally entitled to appointment of such counsel.

       No applicable authority being presented, we need not further

address this issue.      We conclude that, in light of Stanko's refusal
to submit the sworn financial statement evidencing his inability to

obtain legal representation which is required by 5 46-S-111(2),

MCA,   the District Court did not err in denying his motion for

appointed counsel.

     4.    IS § 45-7-302(l), MCA, unconstitutionally  vague and
overbroad on its face, or as applied to Stanko, and did the two
counts of obstructing a peace officer, filed pursuant to that
statute, violate Stanko's right to remain silent?

       Two charges of obstructing a peace officer were filed against

Stank0 pursuant to § 45-7-302(l), MCA, which states:

       A person commits the offense of obstructing a peace
       officer or public servant if he knowingly obstructs,
       impairs, or hinders the enforcement of the criminal law,
       the preservation of the peace, or the performance of a
       governmental function.

The charges stemmed from Stanko's refusal to give the MHP officer

his name during the first traffic stop and giving the officer a

false name during the second stop.             Presumably based largely on the

testimony of the officers involved, the jury found that the State

had proved each element of each of the two obstructing charges
                                      7
beyond a reasonable doubt and convicted Stanko on both charges.

        Stanko does not assert that either of the traffic stops was
invalid or unlawful or that insufficient evidence existed upon

which the jury could find the elements of the offenses beyond a

reasonable        doubt.      He presents         somewhat      murky    constitutional
arguments that the statute defining the offense is unconstitutional

for vagueness and overbreadth on its face, and as applied, and that

it violates his constitutional right to remain silent.

        A statute duly enacted by the legislature is presumed to be

constitutional,        and we will uphold the statute unless the party

challenging it establishes unconstitutionality beyond a reasonable

doubt. State v. Lilburn (1994), 265 Mont. 258, 262, 875 P.2d 1036,

1039,    cert.    denied, 115 S.Ct. 726 (1995).

        Stanko's     various positions regarding the unconstitutionality

of the statute,            on its face and as applied, neither meet that

burden    nor     raise    sufficient    colorable       argument   to   necessitate   a

full constitutional analysis.               Stank0 cites to no precedential or

even persuasive            authority holding unconstitutional a statute

requiring a person lawfully stopped for traffic violations to

identify himself or herself to a peace officer.

        Neither      the     "entrapment"        cases    nor    the     "contradictory

commands" cases Stank0 cites are applicable in any way to the facts

of this case.             In addition,      Stank0 does not support his bare

assertion that the statute at issue criminalizes either "being a

driver" or "mere          conversation;"     thus,   the cases cited which relate

to statutes or situations of those kinds also are inapplicable.

                                             8
       Stanko   does     argue    the   applicability of     the   underlying
principles contained in Miranda v. Arizona (1966), 384 U.S. 436, 86

S.Ct. 1602, 16 L.Ed.2d 694, vis-a-vis his contention that charging

him   with "obstructing"         for refusing to identify himself on one
occasion and giving a false name on the second occasion violated

his Fifth Amendment freedom from compulsion to be a witness against

himself.    However, he does not analyze how his decisions to refuse

to identify himself and to falsely identify himself constitute or

equate to violations by the State of the Fifth Amendment right he

characterizes as his "right to remain silent."           Nor does he analyze
how and when the actual Miranda warning is required during a valid

traffic stop before a driver can be asked to identify himself.

       We   conclude      that      Stanko   has   not     established    the

unconstitutionality of § 45-7-302(l), MCA, beyond a reasonable

doubt and, further,       has not established any infringement of his

Fifth Amendment rights.

     5.   Can the State fine Stanko for driving a vehicle not
registered in Montana under the facts of this case?

       The entirety of Stanko's position regarding this issue is as

follows:

            The State of Montana cannot constitutionally and
       legally fine the defendant pursuant to 61-3-315 for
       driving a foreign registered vehicle in the State of
       Montana because it was not registered in Montana, when
       the State does not have a reciprocity agreement with the
       State of Washington pursuant to Part 7 of Chapter 3 of
       Title 61.

No    contentions,     argument or legal authority in support of this

position are presented as required by Rule 23(a) (4), M.R.App.P.

Moreover, the record does not reflect that Stank0 raised this issue
                                         9
via motion or otherwise in the District Court.               Absent   limited

exceptions not applicable here, defendants are barred from raising

issues on appeal which were not presented to the district court for

initial     resolution.    See,   e.q.,    § 46-20-104(2),   MCA; State v.
Arlington (1994), 265 Mont. 127, 151, 875 P.2d 307, 321.           For these
reasons, we decline to address this issue

     6. Did the District Court err in allowing the State to amend
a statutory reference in the complaint relating to an expired
registration?

     The May 28,      1993,   notice to appear and complaint charged

Stanko with driving a vehicle with an expired registration under
§ 61-3-315, MCA.      The complaint described the relevant time and

place,    and the vehicle Stanko was driving; it also included the

Washington license number,        "with expired registrationL.1 "     At the

time jury instructions were being settled, the District Court

allowed the State to amend the citation to allege a violation of §

61-3-301,     MCA,   the   correct   statutory    reference.      The court

determined that the variance between the two statutory references
was not material.

     The entirety of Stanko's position on this issue is as follows:

          The State of Montana cannot           charge the defendant
     with a different statute after the        evidence was presented
     to the jury, and the defendant was        prepared to defend the
     statute that the policeman had            originally cited and
     charged.

Again,    as with the previous issue,        no   contentions,   argument   or

legal authority are presented as             required by Rule 23(a) (4),

M.R.App.P.     Therefore, we decline to address this issue.

     7.   Do 55 61-5-103 and 61-5-104(4), MCA, bar the State from
prosecuting Stanko for driving without a valid driver's license in
                                      10
violation   of 5 61-5-102, MCA?

      The entirety of Stanko's position regarding this issue is as

follows :

           The State of Montana cannot charge the defendant for
      driving without a Montana license, when the defendant was
      not in the State for at least 90 days pursuant to 61-5-
      103 and 61-5-104(4).
As with the previous two issues,       Stank0 presents no contentions,

argument or authority as required by Rule 23(a) (4), MCA.     Nor does

he present any evidence of record regarding factual matters

supporting his position.     Therefore,    we decline to address this

issue.

      Affirmed.




We concur:




             Justices




                                  11
                                       November 14, 1995

                                  CERTIFICATE OF SERVICE

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


Rudy Stank0
1315 Allendale Road
Laurel, MT 59044

HON. JOSEPH P. MAZUREK, Attorney General
Kathy Seeley, Assistant
Justice Bldg.
Helena, MT 59601

Dale R. Mrkich
Deputy County Attorney
P.O. Box 35025
Billings, MT 59107


                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STATE OF MONTANA
