                                     NO.    95-467
                  IN THE SUPREME COURT OF THE STATE OF MONTANA
                                           1996


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



APPEAL FROM:             District Court of the Eighth Judicial District,
                         In and for the County of Cascade,
                         The Honorable Robert P. Goff, Judge presiding.


COUNSEL OF RECORD:
                 For Appellant:
                         Rudy Stanko, Pro Se; Laurel, Montana
                 For Respondent:
                         Hon. Joseph P. Mazurek, Attorney General;
                         Patricia J. Jordan, Assistant Attorney
                         General; Helena, Montana
                         Brant S. Light, Cascade County Attorney;
                         Jeff Mora, Deputy County Attorney;
                         Great Falls, Montana

          .,.,
                                     Submitted on Briefs:       October 31, 1996
                                                     Decided:   December 17, 1996
                 ;j;;   ! r   ,'.
Filed:
Justice Charles E. Erdmann 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   State   Reporter   Publishing   Company   and   West   Publishing

Company.
        Rudy Stank0 appeals from the jury verdict and sentence entered

by the Eighth Judicial District Court, Cascade County, convicting

him of operating as a livestock dealer without a license, a

misdemeanor, pursuant to 5 81-8-271, MCA.              We affirm.

        The issues on appeal are as follows:

        1.        Did the exclusion of two defense witnesses on relevancy

grounds violate Stanko's rights of compulsory process and due
process?

        2.        Was there sufficient evidence to support the conviction?

        3.        Did the District Court err in admitting evidence of a

warning ticket issued two days prior to the offense?

        4.        Did   the   District   Court    err in    admitting     Stanko's

statement that he had taken the cattle out of state?
        5.        Was a probable cause determination required for the

District Court to hear Stanko's appeal from Justice Court?
                                         FACTS

        Rob Tierney is a district investigator for the Department of

Livestock in Billings.           Tierney first met Rudy Stank0 on March 26,

1993,    at the Billings Livestock Commission where Stank0                 informed

                                           2
Tierney that he was dealing in livestock.             Tierney informed Stank0
that he could not operate as a livestock dealer without being

licensed by the State.            After Tierney personally observed Stank0

buying cattle, he issued Stank0 a warning notice dated March 29,
1993.     At that time,         Stank0 requested a real ticket so that he

could challenge the system.

        Tierney later served Stank0 with a citation charging him with

buying cattle at Western Livestock Auction on March 31,~ 1993,

without    a   dealer's   license.       Tierney delivered the citation to

Stank0 during the first week of April 1993.             At that time, Stank0

indicated he would "test the system" and acknowledged that Stank0
Farms,    of Gering,      Nebraska,     was owned by him and his w-wife.

Stank0 also stated that he had purchased the cattle and taken some

of them to Laurel and some to Long Prairie and Scotts Bluff,

Nebraska.
        Stank0 was subsequently issued a notice to          appear.in Justice

Court on a misdemeanor charge of buying cattle without a dealer's

license, pursuant to § 81-E-271, MCA.            On December 9, 1993, he was

tried by a jury and found guilty.
        Stank0 appealed his conviction to the District Court where he

was tried de nova.         In    that   proceeding,   the State filed notice

pursuant to State v. Just (1979), 184 Mont. 262, 602 P.2d 957 (as

modified in State v. Matt (1991), 249 Mont. 136, 814 P.2d 52), that

it intended to introduce the March 29, 1993, warning ticket Tierney

had issued to Stanko.        The State intended to use the warning ticket

to prove knowledge, purpose, and absence of mistake.              Following a

                                          3
pretrial hearing on the matter, the District Court determined that
the evidence was admissible under Rule 404(b), M.R.Evid.

         Stank0   filed motions to dismiss the complaint on the grounds

that § 81-8-271, MCA, was unconstitutional for a number of reasons,

and that the statute was discriminately enforced.                The State filed
a motion in limine to exclude all testimony tending to show that

other     individuals    or   organizations    are    not   prosecuted    under   the

statute      and that     other persons or           organizations,      namely the
National     Farmers'     Organization       (NFO), are not subject to its

provisions.          The State relied on the fact that the court had
previously stated at the omnibus hearing that such testimony and

evidence      was    irrelevant   to the present matter            and therefore

inadmissible.          The District Court denied            Stanko's     motions to

dismiss and granted the State's motion in limine.                      Stank0 then

filed an interlocutory appeal with this Court which we dismissed as

being premature and unauthorized by the Montana Rules of Appellate

Procedure.          See Mont. Sup. Ct. Order No. 94-555 (February 28,

1995).

        A jury trial was conducted on August 10 and 11, 1995.                At the
close of the State's case,          Stank0 moved for a directed verdict,

which the court denied.             Stank0 then made an offer of proof

regarding the proposed testimony of two witnesses, Les Graham and

Joyce Riles.         The court heard testimony from both individuals out

of the presence of the jury and concluded it would not allow either

Graham or Riles to testify before the jury because their testimony

was   irrelevant.       At that point,       the defense rested its case and

                                         4
Stanko renewed his motion for a directed verdict, which the court
denied.

     The jury returned a guilty verdict.         Stanko moved for a

judgment notwithstanding the verdict, which the court denied.       The
District Court sentenced Stanko to pay a fine in the amount of

$1000 with $750 suspended. This appeal followed.

                              ISSUE 1

     Did the exclusion of two defense witnesses on relevancy
grounds violate Stanko's rights of compulsory process and due

process?

     Stank0 argues that when the court excluded the testimony of

Graham and Riles, he was prevented from presenting his case on the

alleged unconstitutionality of 5 81-a-271, MCA, and the Department
of Livestock's discriminatory enforcement of the statute.        Graham

was a long-time employee of the Department of Livestock and was the

director of the Department from 1983 to 1991.     Riles was a member

of the NFO and was prepared to testify about the NFO exemption and

how they operate without a dealer's license.

     We first note that with respect      to    Stanko's    claim that

5 81-8-271, MCA, is unconstitutional, this Court has already ruled

on this issue in a prior action involving Stanko.          See State v.

Stank0 (1996), 275 Mont. 532, 913 P.2d 1259.      In that matter, we

upheld the constitutionality of the statute, and therefore Stanko's

argument on that ground in the present action is without merit.

     The district court has broad discretion to determine whether

or not evidence is relevant and admissible.     State v. Hall (lYYO),

                                 5
244 Mont.          161,   169,    797 P.2d 183,         188.      & also Rule 401,
M.R.Evid.          The district court's determination of the relevance and

admissibility of evidence is subject to review only for abuse of

discretion.          State v. Hage (19931, 258 Mont. 498, 504, 853 P.2d

1251,    1255.

        The     Sixth Amendment of             the     United     States        Constitution

guarantees the accused compulsory process for obtaining witnesses

in his favor.             This right is a part            of due process that the
Fourteenth Amendment requires the state to provide.                         Washington v.

Texas (1967), 388 U.S. 14, 18-19.                      In addition,        the    Fourteenth

Amendment right to due process ultimately governs the state's rules
of evidence.          The defendant must be afforded a fair opportunity to

defend against the state's accusations.                        Chambers    v.    Mississippi

(19731,       410 U.S. 284, 294.       Nevertheless,       the defendant's right to

present evidence is not absolute.                    Chambers,    410 U.S. at 302.

        The Ninth Circuit Court of Appeals has adopted the following

five-factor analysis to determine whether the exclusion of evidence

reaches constitutional proportions: (1) the probative value of the

evidence;          (2) its reliability; (3) whether it is capable of

evaluation by the trier of fact;                      (4) whether it is the sole

evidence on the issue or merely cumulative; and (5)                              whether   it

constitutes a major part of the attempted defense.                         See Tinsley v.

Borg (9th Cir. 1990), 895 F.2d 520, 530.                          The court must also

consider the purpose of the state's evidentiary rule and give due
weight to the substantial state interest in preserving orderly

trials,       in    judicial     efficiency,       and in excluding unreliable or

                                               6
prejudicial    evidence.       Perry v. Rushen (9th Cir. 1983), 713 F.2d
1447,    1452-53.

        Graham testified out of the presence of the jury that he did

not know what the Department of Livestock was doing with regard to

enforcement of the statute in 1993 since he was no longer with them

at that time.        Graham and Riles testified that the NFO was a

collective    bargaining   organization     that   sells   only   its   members'

cattle.      However,   the record fails to indicate there was any

evidence presented to show that Stank0 was a member of the NFO or

any other collective bargaining unit or organization entitled to be

exempt from the operation of the statute.

        Graham further testified that before the statute was amended,

the     Department   of Livestock would permit a small rancher to

purchase cattle for his own lot out of state, but that such a

practice would not be permitted under the current statute. Tierney

corroborated this fact when he testified that the law would now be

enforced against such a buyer.              There was no testimony which

supported Stanko's argument that the law is randomly enforced

against small, out-of-state        ranchers.

        We determine    that     Graham's   and Rile's testimony had no

probative value on the central issue in the case.                 The   testimony

was offered to prove that the NFO was not required to be licensed

under the Montana Livestock Marketing Act.            However,     an exemption

for NFO members has no bearing on this case since Stank0 failed to

prove he was a member the NFO or any marketing organization

claiming an exemption from the statute.            Moreover, the State has a
strong     interest in               preserving       orderly    trials,   in   judicial
efficiency, and in excluding evidence irrelevant to the issues. In

this case,           the State's interest clearly outweighs the lack of

probative value that the evidence Stank0 intended to present to the

jury would have had.

       We therefore conclude that the District Court did not violate

Stanko's        constitutional          right     to compulsory process         and due
process,       or otherwise abuse its discretion when it prevented the
jury from hearing the testimony from Graham and Riles.

                                              ISSUE 2

       Was there sufficient evidence to support the conviction?
       Stank0        argues that         the evidence presented at trial was

insufficient to support the conviction.                     He   specifically   contends

that     the    State did not prove that he purchased cattle for

interstate          shipment.

       When the issue on appeal in a criminal case is whether there

was sufficient evidence to support a jury verdict, the standard of

review 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. Licht (1994), 266 Mont. 123, 131, 879 P.2d 670,

675 (citing State v. Lyons (1992), 254 Mont. 360, 363, 838 P.2d

397,   399).
       Section           81-8-271,     MCA,   provides that a person shall not

operate        as    a     livestock dealer without a license.                   Section

81-8-213 (6), MCA, defines "livestock dealer" as a person engaged in

                                                  8
the   business   of   purchasing    livestock    for    immediate   resale,      for
interstate    shipment, or on a commission or fee basis.

      In the present case,         the State's proof focused solely on

Stanko's purchase of cattle          for    interstate     shipment.       Tierney
testified that upon purchase of cattle, the destination of the

cattle must be listed on the documentation and the purchaser may

not divert the cattle to another destination without seeking prior

approval from the Department of Livestock.             Tierney stated that the
cattle cannot be released from the market until the documentation

is completed and the cattle are paid for.              Jody Stortz, the office
manager and custodian of records at Western Livestock Auction,

introduced the purchase sheets for the cattle purchased by Stank0

Farms of Gering, Nebraska.
      Mark    Bridges,    the   administrator of          the   Department of
Livestock's   Brand   Enforcement    Division,    introduced    into      evidence

the market release forms.          The destination listed on all of the

forms was Gering, Nebraska.        Faye Olson and Kent Kerchal of Western

Livestock Auction both testified that on March 31,                     1993,    they

observed Stank0 buying cattle using the bidding number 70.                 Kerchal

testified that the cattle were released to Gering, Nebraska.                   Daryl

Facken testified that he was working for Stank0 in March 1993, and

confirmed that he had signed the check which paid for the cattle.

Moreover, Stank0 admitted to Tierney that he had taken some of the

cattle out of state.       Moreover,       the warning ticket Tierney gave

Stank0 on March 29, 1993, was introduced to show Stanko's knowledge
of the licensing requirement and that he knowingly violated the

                                       9
statute by purchasing the cattle with the intent to ship them out
of   state.   Tierney testified that he checked on Stanko's status and

found that he was not licensed as a dealer in Montana.

      We determine that in this case any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt and therefore conclude that there was substantial

evidence to support the conviction.

                                 ISSUE 3
      Did the District Court err in admitting evidence of a warning

ticket issued two days prior to the offense?

      Stank0 argues that the District Court erred by allowing the
warning ticket he had received for acting as an agent for a

livestock dealer in Billings to be admitted into evidence

      When a district court determines whether evidence concerning

past acts is      admissible under Rule      404 (b) ,   M.R.Evid.,   it   is

governed by the following       four-prong test set forth in MattI
                                                             -
referred to as the "Modified Just Rule:"

      simili;), The other crimes, wrongs or acts must be


           (2) The other crimes,        wrongs or acts must not be
      remote in time.
            (3)  The evidence of other crimes, wrongs or acts is
      not admissible to prove the character of a person in
      order to show that he acted in conformity with such
      character; but may be admissible for other purposes, such
      as proof of motive, opportunity, intent, preparation,
      plan,   knowledge, identity, or absence of mistake or
      accident.

           (4)  Although relevant, evidence may be excluded if
      its probative value is substantially outweighed by the
      danger of unfair prejudice, confusion of the issues,

                                   10
     misleading of the jury, considerations of undue delay,
     waste of time, or needless presentation of cumulative
     evidence.

u, 814 P.2d at 56.

     We review evidentiary rulings made by the district court to

determine whether the court abused its discretion.                State v.
Gollehon       (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263.     In the

present case,       the State properly provided just notice to Stanko

that it intended to introduce the warning ticket into evidence.

The warning was for acting as an agent for a livestock dealer

without    a    license,   and the charged offense was for a similar

offense, i.e., purchasing cattle for interstate shipment without a

license.       The prior act is sufficiently relevant to show knowledge

of the license requirements.

     The warning ticket was certainly not remote in time and it was
offered for the limited purpose of showing the absence of mistake,

knowledge or purpose of the defendant.           The evidence was not
lengthy and it         would not have confused or misled the jury.

Furthermore,      the record indicates that the District Court properly

instructed the jury concerning the limited purposes for which the

evidence was being admitted.       We therefore conclude that the court

did not abuse its discretion by admitting the March 29, 1993,

warning ticket into evidence.

                                   ISSUE 4

     Did the District Court err in admitting Stanko's statement

that he had taken the cattle out of state?



                                     11
       Stanko argues that his admissions to Tierney that he had taken
the cattle out of state are              not admissible because a warning

pursuant to Miranda v. Arizona (1966),            384 U.S. 436, was not given.

       Miranda requires that the State may not use a confession

resulting from "custodial interrogation" unless the proper warnings

have    been     given.       Miranda,    384     U.S. at        444.     Custodial

interrogation      requires    questioning      initiated   by     law   enforcement
officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way. Miranda,

384 U.S. at 444.

       This Court has set out the following six factors to determine

whether a reasonable person would feel free to leave and therefore

not be placed under custodial interrogation:

        [Pllace of interrogation, the time of interrogation,
       persons present during interrogation, whether Miranda
       warnings were gratuitously given, the length and mood of
       interrogation,   and whether or not the suspect was
       arrested following questioning.

State v. Staat (19911, 251 Mont. 1, 6, 822             P.Zd 643, 646 (quoting

State v. Lapp (1983), 202 Mont. 327, 331, 658 P.2d 400, 403).

       In the present case, the record does not indicate that Stanko

was interrogated or placed into a custodial situation.                      Tierney
testified that he personally served Stank0 with a notice to appear

in Justice Court.         Stank0 was not arrested or taken into custody

and he was free to go at any point during the conversation with

Tierney.       Thus,   a Miranda warning was not required at the time

Stank0 made his statements to Tierney.



                                         12
        We therefore conclude that the District Court did not abuse
its discretion when it allowed Stanko's statement that he had taken

the cattle out of state to be admitted into evidence.

                                 ISSUE 5

        Was a probable cause determination required for the District
Court to hear Stanko's appeal from Justice Court?

        Stanko relies on § 46-11-201, MCA, to argue that the District

Court was required to make an independent judicial determination

of probable cause at a preliminary hearing.         That statute, however,
applies to a motion for leave to file an information.                   In this

case,    the complaint was filed in Justice Court and Stank0 appealed

his     conviction to   the   District     court.        A   probable     cause
determination is not required for an appeal from a Justice Court

conviction.

        Affirmed.



                                               Justice




                                   13
                                       December 17, 1996


                                  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


Jeff Mora
Deputy County Attorney
121 4th Street North
Great Falls, MT 59401

Hon. Joseph P. Mazurek, A.G.
  , Assistant Attorney General
Justice Building
Helena, MT 59601

                                                     ED SMITH
                                                     CLERK OF THE SUPREME ( :OURT
                                                     STATE OF MONTANA

                                                     BY:
                                                     Dep
