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                                                               No. 98-411

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2000 MT 25N




                                                     STATE OF MONTANA,

                                                     Plaintiff and Respondent,

                                                                      v.

                                                       HERBERT STRONG,

                                                     Defendant and Appellant.



                             APPEAL FROM: District Court of the First Judicial District,

                                          In and for the County of Lewis and Clark,

                                      Honorable Thomas C. Honzel, Judge Presiding


                                                    COUNSEL OF RECORD:

                                                             For Appellant:


                             Steven M. Hudspeth, Attorney at Law, Great Falls, Montana

                                                            For Respondent:


                              Honorable Joseph P. Mazurek, Attorney General; Mark W.



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                                  Mattioli, Assistant Attorney General, Helena, Montana


                           Mike McGrath, County Attorney; Vicki Frazier, Deputy County

                                                     Attorney, Helena, Montana



                                           Submitted on Briefs: September 10, 1999

                                                     Decided: January 31, 2000


                                                                    Filed:

__________________________________________

                                                                    Clerk

                                  Justice Jim Regnier delivered the Opinion of the Court.



¶1.Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2.Herbert Strong appeals from his conviction of criminal mischief and the judgment and
sentence entered by the First Judicial District Court, Lewis and Clark County. We affirm.

¶3.The issues presented on appeal are as follows:

¶4. Did the District Court abuse its discretion when it restricted Strong's direct
examination of Buchanan?

¶5. Did the District Court abuse its discretion when it prohibited Strong from presenting
evidence regarding the existence of an easement?


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¶6. Whether the alleged errors committed by the District Court constitute cumulative error?

                             FACTUAL AND PROCEDURAL BACKGROUND

¶7.Beginning in 1993 or 1994, Herbert Strong was employed by John Buchanan, who
owned approximately 12,000 acres near Craig, Montana. Since Strong was living on the
property, Buchanan employed Strong without compensation for the purpose of showing
Buchanan's property to potential timber buyers. In 1996 Buchanan entered into a contract
for deed with Painted Rock, LLC, for the purchase of approximately 6,000 acres of land.
Subsequently, Strong entered into an independent contractor relationship with Painted
Rock, LLC, to oversee the property. Strong's duties for Painted Rock, LLC, included
showing loggers different areas Painted Rock wanted logged, showing the property to
prospective timber buyers, and working with the party leasing a portion of the land for
hunting.

¶8.On October 26, 1996, Strong showed property on behalf of Painted Rock, LLC, to
someone interested in the timber. In the course of showing the property, Strong entered
property belonging to an adjacent landowner, the Westons, by forcing open a gate on their
property. There is conflicting testimony with regard to whether Strong cut the lock or
forced the gate open from the side where it was attached to the post. Strong entered the
Westons' property despite being told by the Westons once in 1995 and again
approximately six days prior to October 26, 1996, that he was not welcome on their
property.

¶9.After Strong had finished showing the property and returned to the gate, he noticed that
the Westons had shut the gate and parked their vehicles across the road to block his
passage. Strong tore out the gate with his truck, drove up into the Westons' yard making a
detour around the vehicles and back onto the road and then continued to travel down the
road, dragging the gate behind him. One of the Westons proceeded to follow Strong and
was able to identify him as the driver of the truck. Immediately following this incident, the
Westons telephoned the sheriff's department.

¶10.A short time later, a sheriff's deputy responded to the Westons' call. Upon his arrival,
the deputy interviewed the Westons and the then conducted an investigation of the
incident. During his investigation, the deputy observed drag marks on the road from where
the gate and wagon wheel had been dragged from their original location to their ultimate
resting spots alongside the road. The deputy testified at trial that his observations were

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consistent with what the Westons had told him had happened.

¶11.On October 30, 1996, the sheriff's deputy interviewed Strong regarding the incident.
Upon being advised of the Westons' complaint, Strong's only response was that the
Westons were lying. At that time, the deputy issued Strong a citation for damaging the
property of another in violation of § 45-6-101, MCA (1995).

¶12.Strong entered a plea of not guilty and requested a jury trial with regard to the citation
for criminal mischief in the Lewis and Clark County Justice Court. Strong later waived his
right to a trial by jury and requested a trial before the Justice Court sitting without a jury.
The trial was held on July 15, 1997. Testimony from several witnesses, including the
Westons, the deputy sheriff who had investigated the incident, a previous landowner who
had sold the property to Buchanan, and Strong, as well as evidence was presented. After
having considered the testimony and evidence presented, the Justice Court found Strong
guilty of the offense of criminal mischief. In reaching its decision, the Justice Court noted
that much had been made at trial regarding whether the individuals involved had
easements across one another's property. In relation to this, the Justice Court stated that
whether or not Strong thought he had the right to be on the Westons' property, Strong
destroyed the property of another in violation of § 45-6-101, MCA (1995).

¶13.A sentencing hearing was held on July 31, 1997. Strong was given a six-month
suspended sentence and ordered to pay restitution for the damage to the gate, to pay
witness fees, and to be law abiding. In August 1997 Strong appealed to the First Judicial
District Court, Lewis and Clark County, from the judgment of conviction and sentencing.

¶14.The District Court conducted a jury trial on April 27, 1998. Prior to the
commencement of the trial, the parties participated in an in-chambers discussion where the
State requested that Strong not be allowed to present any testimony regarding a
prescriptive easement. The State made this request on the basis that the determination of
whether a prescriptive easement existed was a civil matter and that whether a prescriptive
easement existed is irrelevant to the charge of criminal mischief. Strong's attorney refuted
the State's rationale by alleging that he was attempting to raise a reasonable doubt as to
whether the Westons unreasonably interfered with a possible easement. The District Court
agreed with the State and determined that evidence of an easement was irrelevant to the
charge of criminal mischief and granted the State's request.

¶15.During the trial, the parties presented evidence and the testimony of several witnesses.


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Following deliberations, the six-person jury found Strong guilty of criminal mischief, a
misdemeanor in violation of § 45-6-101, MCA (1995). The District Court entered its
judgment of conviction and sentenced Strong to six months in jail suspended upon the
following conditions: (1) pay restitution in the amount of $207; (2) pay witness fees and
jury costs associated with the trial; (3) pay a fine of $150; (4) pay a mandatory surcharge;
and (5) remain law abiding. Strong appeals from the District Court's judgment of
conviction and sentencing.

                                                  STANDARD OF REVIEW

¶16.The standard of review for evidentiary rulings in a criminal case is whether the district
court abused its discretion. See State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d
378, 380 (citation omitted). "The district court has broad discretion to determine whether
or not evidence is relevant and admissible, and absent a showing of an abuse of discretion,
the trial court's determination will not be overturned." Passama, 261 Mont. at 341, 863
P.2d at 380 (citation omitted).

                                                                 ISSUE 1

¶17.Did the District Court abuse its discretion when it restricted Strong's direct
examination of Buchanan?

¶18.Strong contends that the District Court violated his right to present a defense when it
sustained the State's hearsay objection to testimony Strong's attorney attempted to elicit
from Buchanan regarding what the previous property owner had told Buchanan about the
ownership of the gate. The State responds that the District Court did not abuse its
discretion when it disallowed Buchanan's hearsay testimony and that the District Court did
not prohibit Strong from presenting his defense that he believed either Buchanan or
Painted Rock, LLC, owned the gate. The District Court determined the testimony that
Strong's attorney was attempting to elicit from Buchanan did not fall within an exception
to the hearsay rule and sustained the State's objection on that basis.

¶19.Further, Strong argues that the evidence was offered as a prior inconsistent statement
that went to Strong's state of mind with regard to ownership of the gate and created a
reasonable doubt as to whether Strong had the mental state necessary to commit the
offense of criminal mischief. The State contends that the testimony was offered to prove
the truth of the matter asserted and not Strong's state of mind since the statement had


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allegedly been made to Buchanan, not Strong. The State also points out that the previous
property owner had testified that he had told Buchanan the gate was located on the
Westons' property and that Buchanan had testified he had figured out 3 or 4 years after he
bought the property in approximately 1975 or 1976 that the gate was not located on his
property and that he could not recall having any conversations with Strong regarding
ownership of the gate.

¶20.Hearsay is not admissible except as otherwise provided by statute, the Montana Rules
of Evidence, or other rules applicable to the courts of Montana. See Rule 802, M.R.Evid.
Hearsay is a statement, other than one made by the declarant while testifying at trial,
offered in evidence to prove the truth of the matter asserted. See Rule 801(c), M.R.Evid.
Rule 801(d), M.R.Evid., identifies statements that are not hearsay:

(d) Statements which are not hearsay. A statement is not hearsay if:

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject
to cross-examination concerning the statement, and the statement is (A) inconsistent with
the declarant's testimony, . . .

Thus, we determine whether the previous landowner's alleged prior statements to
Buchanan were inconsistent with his testimony at trial and whether he was subject to cross-
examination about them.

¶21.The testimony Strong's attorney had attempted to elicit from Buchanan was that the
person who had sold Buchanan the property told him that the gate was on the property
offered for sale to Buchanan. At trial, Strong's attorney had cross-examined the person
who had sold the property to Buchanan and he testified that he had told Buchanan during
negotiations for the sale of the property that the gate was located on the Westons' property.
Accordingly, we conclude that the previous landowner's trial testimony was inconsistent
with his prior statement to Buchanan. Therefore, the District Court abused its discretion
when it sustained the State's hearsay objection with regard to the prior inconsistent
statement.

¶22.However, as the State correctly points out, Strong is required to establish that the
District Court's erroneous evidentiary ruling was prejudicial. See § 46-20-701, MCA
(1995). Strong asserts that the excluded testimony went to Strong's state of mind with
regard to whether he had the mental state necessary to commit criminal mischief either as


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to the knowledge that the gate belonged to another or that he had torn out the gate with the
permission of Buchanan. The State argues that the exclusion of the testimony constitutes
harmless error. Strong's attorney informed the District Court that the purpose for
attempting to elicit the prior inconsistent statement from Buchanan was to prove that
Buchanan had told Strong that the previous owner had told him that he owned the gate.

¶23.Buchanan did not testify in conformity with this offer of proof. Instead, Buchanan
testified that he did not recall telling Strong anything about the gate other than that he had
the right to go through it. Thus, the record indicates that the prior inconsistent statement
made to Buchanan by the previous landowner was never conveyed to Strong. Therefore,
we conclude that the District Court's exclusion of the prior inconsistent statement made by
the previous landowner was harmless error.

                                                                 ISSUE 2

¶24.Did the District Court abuse its discretion when it prohibited Strong from presenting
evidence regarding the existence of an easement?

¶25.Strong contends that he was denied the opportunity to present a defense when the
District Court prohibited him from presenting evidence of a prescriptive easement on the
Westons' property. The State argues that the easement issue is a red herring designed to
distract this Court from Strong's conduct and his evasive and conflicting testimony. On the
morning of the jury trial, the District Court held an in-chambers hearing regarding the
issue of evidence concerning the existence of an easement. The District Court excluded
evidence of an easement on the basis that the only issue before it was whether or not
Strong had destroyed a gate belonging to the Westons.

¶26.Rule 401, M.R.Evid., defines relevant evidence:

Relevant evidence means evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less probable
than it would be without the evidence. Relevant evidence may include evidence bearing
upon the credibility of a witness or hearsay declarant.

Rule 402, M.R.Evid., states that evidence that is not relevant is not admissible. Strong was
cited for criminal mischief in violation of § 45-6-101, MCA, which states:



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Criminal Mischief. (1) A person commits the offense of criminal mischief if the person
knowingly or purposely:

(a) injures, damages, or destroys any property of another or public property without
consent;

(b) without consent tampers with property of another or public property so as to endanger
or interfere with persons or property or its use;

(c) damages or destroys property with the purpose to defraud an insurer; or

(d) fails to close a gate previously unopened which the person has opened, leading in or
out of any enclosed premises. This does not apply to gates located in cities or towns.

Section 45-6-101(1), MCA (1995).

¶27.The charge of criminal mischief involves damage to or destruction of the property of
another without consent. Evidence of an easement would have established that Strong had
the right to be on the Westons' property, which we note the record indicates to the
contrary. In any event, Strong did not have the Westons' consent to tear down the gate.
Therefore, we conclude that the District Court did not abuse its discretion when it
prohibited Strong from presenting evidence of an easement on the basis that it was not
relevant.

¶28.In addition, we think it is important to point out that Strong was not denied the
opportunity to present a defense in this case. First, Strong participated in a bench trial in
Justice Court where he had the opportunity to cross-examine witnesses, present evidence
and testify in his own behalf. Second, Strong appealed the Justice Court's decision to the
District Court, was granted a jury trial where he cross-examined witnesses, presented
evidence, and testified in his own behalf. Throughout his entire case, Strong was
represented by counsel. Under these circumstances, we cannot say that Strong was denied
the opportunity to present a defense.

                                                                 ISSUE 3

¶29.Whether the alleged errors committed by the District Court constitute cumulative
error?


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¶30.Since we have determined that the District Court's abuse of discretion with regard to
the exclusion of the prior inconsistent statement was harmless error, we need not address
the issue of whether any alleged errors committed by the District Court constitute
cumulative error.

¶31.Affirmed.

                                                           /S/ JIM REGNIER

                                                                We concur:


                                                          /S/ J. A. TURNAGE

                                                   /S/ WILLIAM E. HUNT, SR.

                                                        /S/ KARLA M. GRAY

                                                  /S/ W. WILLIAM LEAPHART




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