                            No. 81-564
              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                 1982


STATE OF MONTANA,
                           Plaintiff and Respondent,
     VS   .
GORDON HART,
                           Defendant and Appellant.



Appeal from:      District Court of the Fourth Judicial District,
                  In and for the County of Lake
                  Hon. R. D. McPhillips, Judge presiding.
Counsel of Record:
    For Appellant:
          K. M. Bridenstine, Polson, Montana

    For Respondent:
          Hon. Mike Greely, Attorney General, Helena, Montana
          Richard P. Heinz, County Attorney, Polson, Montana


                               Submitted on briefs:    May 27, 1982
                                           Decided:    September 3, 1982

Filed:   5E.P .-3 198%
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.

     Defendant Hart appeals from conviction in the Fourth
Judicial District Court, Lake County, upon a jury verdict of
guilty of sexual assault.   We affirm the District Court.

     Defendant maintains that the District Court erred in
admitting police testimony of several statements allegedly
made by defendant prior to his receiving a Miranda warning.
See Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602,
16 L.Ed.2d. 694.   The State and defendant disagree on whether
defendant was in custody when he made the statements and
whether defendant's motion to suppress the statements was
timely.
     In the early morning hours of April 22, 1981, at closing

time, defendant was invited to a party at the apartment home
of the woman bartender of a bar in Polson.   While there

(apartment no. 6), he bothered the hostess, who went to a
neighboring apartment (no. 3) to ask the men there to help

her encourage defendant to leave.   In apartment no. 3, were
complainant T.A., her boyfriend, her uncle, and her two

daughters.   The two men went over to the party.   When T.A.
left her apartment for the party a few minutes later, she
left a living room and a bathroom light on for the benefit

of her daughters, ages two and three, who were sleeping in
the apartment's only bedroom.   A male friend was left passed
out in a chair in the apartment.
     At the party, defendant and T.A. conversed briefly and
then defendant left.   A few minutes later, T.A. returned to
her apartment and noticed the bedroom light was on.    ~hinking

her girls were awake and playing, she called at them to get

back into bed.   As she reached into the bedroom to turn off
the light, someone grabbed her by the arms and yanked her
into the room as the light went off.    T.A. claims she looked
right into defendant's face as this happened.     Her assailant

threw her against the dresser, pushed her to the floor,
and then fled from the apartment.   T.A. rushed out after

him; her screams drew her uncle and boyfriend from apartment
no. 6.   They saw defendant running and gave chase, but he
eventually eluded them.   T.A. returned to her apartment
before calling police, to check on her daughters.     She found
them frightened and sobbing.   The pants and underpants of
the older child were down around her ankles.     She told her
mother that a man had taken her clothes down, touched her,
and "put poop" in her pants.   She later indicated to the
neighbor woman in the presence of witnesses that the man had
touched her private parts with his tongue.     Scratches were
found on the child's back and buttocks the next day.
     T.A. called the police from her neighbor's apartment.
Officer Tracy Smith arrived within a minute or two, and was
admitted to the neighbor's apartment.     There T.A. told
Officer Smith that "Gary Hart" had grabbed her and pushed
her down when she caught him in her bedroom, and had then
eluded his pursuers.
    At this point, according to Officer Smith's testimony,
the party heard a vehicle start, then stall.     Several persons
shouted, "that was him" and "go get him."     Everyone rushed
out toward the brown pickup truck, which Officer Smith
recognized as belonging to Gordon Hart.     Officer Smith
testified that just before they reached the pickup, she told
Officer Knickerbocker, who had just arrived as backup, that
"the fellow we were after was in the pickup."
     Defendant Hart was found lying on the pickup seat, eyes
open, head toward the passenger door.     Officer smith asked
him what he was doing and, "he said he was passed out,
trying to sleep."
     Her testimony follows:
            "Q. Did you say anything further to him at
            that time? A. I told him that I had a com-
            plaint from a woman in Apartment No. 3. I
            had my back to Apartment No. 6 , and I motion-
            ed to No. 3 with my right hand, and I said,
            'I have a complaint from a woman who says
            that you were in her apartment.'
            "Q. Did you receive any response to that
            statement by you? A. He said, 'Yes, I was,
            but I wasn't in there very long.' He said
            he was only in there a minute."
     Officer Smith then suggested defendant leave the pickup
and come sit in the patrol car.    The pickup was surrounded
     crowd from the          cursing, shouting and pounding on
the hood and sides.    Defendant refused to leave the pickup.
Officer Smith said that while defendant was in the pickup
she suspected he was involved in something that had happened.
The transcript shows:
            "Q. (By Mr. Heinz) At that time was he in
            custody, had you taken him into custody? A.
            [By Officer Smith] No, sir.
            "MR. BRIDENSTINE [Counsel for defendant]:
            Well, he was, of course, not in custody,
            Your Honor, but he was the focus of her in-
            vestigation."
Officer Smith also testified that before defendant left the

pickup, she asked him how he had gotten dirt on his hands,
whether he had fallen down, and he replied, "Yes, those guys
were chasing me around the neighborhood."
    When Officer Smith suggested defendant leave the pickup
and sit with her in the patrol car, he refused, saying that
he wanted the police to leave him alone so he could sleep.
He became profane and loud in his refusal.     Officer Smith
then asked her backup, Officer Knickerbocker, to try to get
defendant into the patrol car.    Defendant testified, "He
coaxed me out of the car."    Officer Knickerbocker testified
that he told defendant "there was two ways we could do it,
but he would be coming over to the vehicle."    This testimony

followed:
            "Q. Wouldn't you say that is a threat of
            force? A. I don't know.
            "Q. You intended to use force if you had
            to? A. If necessary.''
     Defendant then agreed to get in the police car.      As
soon as he did, he was read his rights by Officer Smith.
Defendant then reiterated that he had been in the apartment
briefly and that "these guys chased him around the neighbor-
hood."    Officer Smith drove defendant to the police station,
where he was charged with disorderly conduct and booked.
The written statements submitted by T.A. and her boyfriend
led to defendant's being charged, on April 24, 1981, with
sexual assault.
     Defendant's story was that he left the party and, after
falling over a railing, decided to go to his pickup to
sleep. He was awakened by the arrival of the police and the
members of the party.   He denied making the disputed statements,
either before or after he received Miranda warnings.     He
alleged that he was the victim of a vengeful plot by the
children's mother, with whom he had had a hostile encounter
some months earlier. These are factual matters, which were
decided by the jury, and which were not raised as issues on
appeal.
     On the first day of trial, August 17, 1981, after the
jury had been seated, defendant moved in limine against any
testimony offered by the police officers as to statements
defendant had made before receiving his Miranda warnings.
The State resisted the motion, arguing (1) that it was not
timely under section 46-13-301, MCA, governing motions for
suppression of confessions or admissions; and (2) defendant
was not in custody at the time he made the statements, thus
no Miranda warnings were required.   The District Court
delayed ruling on the motion until foundation was laid
during trial, when Officer Smith was testifying.   - camera
                                                   In
argument was allowed, to determine whether testimony of
defendant's pre-Miranda statements was admissible.    Again,

both parties argued the timeliness of the motion and the
admissibility of the statements on constitutional grounds.
The District Court denied defendant's motion and ruled that

the statements were admissible.   The court did not indicate
whether it found the motion to be untimely under section 46-
13-301, MCA, or found that defendant was not protected by
the Miranda requirements at the time he made the statements.

     Defendant was convicted of sexual assault (upon a
minor), and was sentenced to Montana State Prison.   He

appeals his conviction to this Court.   The sole assignment
of error defendant makes is that the District Court erred by
admitting the two statements defendant made to Officer Smith
before being given his Miranda warnings.



     We find the matter of the timeliness of defendant's
motion to suppress to be determinative here.
     Section 46-13-301, MCA, states:

          " (1) A defendant may move to suppress as
          evidence any confession or admission given
          by him on the ground that it was not volun-
          tary. The motion shall be in writing and
          state facts showing wherein the confession
          or admission was involuntary.
          " (2) The motion shall be made before the
          trial unless for good cause shown the court
          shall otherwise direct.
          "(3) The defendant shall give at least 10
          days' notice of such motion to the attorney
          prosecuting or such other time as the court
          may direct. The defendant shall serve a
          copy of the notice and motion upon the attor-
          ney prosecuting."
                                       ,
     In State v. Hall (19791, - Mont. - 600 P.2d 1180,

36 St.Rep. 1780, this Court upheld the District Court's
denial of defendant's motion to suppress statements made by

him, because the motion was correctly denied on the merits
and because the motion was untimely.    In Hall, we found:
                " D e f e n d a n t ' s motion t o s u p p r e s s was u n t i m e l y
                a s i t was n o t made u n t i l 8 d a y s b e f o r e t r i a l .
                The a p p l i c a b l e s t a t u t e r e q u i r e s a t l e a s t 1 0
                days n o t i c e .       S e c t i o n 46-13-301, MCA.           Here
                t h e d e f e n d a n t w a i t e d o v e r 7 months a f t e r h e
                was c h a r s e d t o f i l e h i s motion and t h e n
                               -
                f i l e d i t o n l y 8 days p r i o r t o t r i a l . "
                                       ,
                Mont. a t - 600 P.2d a t 1182, 36 St.Rep.
                a t 1783,      -.
        I n S t a t e v . B r i n e r ( 1 9 7 7 ) , 173 Mont. 185, 567 P.2d 35,

t h e a p p e a l t u r n e d i n p a r t upon t h e t i m e l i n e s s of a motion t o

s u p p r e s s e v i d e n c e which t h e d e f e n d a n t a l l e g e d was i l l e g a l l y

seized.       I n Briner, defendant attempted t o f i l e various

motions t o s u p p r e s s e v i d e n c e on t h e f i r s t day of t r i a l a f t e r

t h e j u r y had been v o i r d i r e d and p a s s e d f o r c a u s e by t h e

county a t t o r n e y .     The D i s t r i c t C o u r t r e c e s s e d , t o o k t e s t i m o n y

and h e a r d arguments, t h e n , d e n i e d t h e motions.

        The B r i n e r c o u r t s t a t e d t h a t t h e q u e s t i o n of t i m e l i n e s s

was w e l l d e f i n e d i n Montana, and c o n t i n u e d :

                " I n S t a t e v. G o t t a , 71 Mont. 288, 290, 229
                P.   405, 406, t h i s C o u r t , s p e a k i n g t o t h e i s s u e
                of ' t i m e l i n e s s 1 s t a t e d :

                " I * * * one w i s h i n g t o p r e c l u d e t h e u s e of
                evidence obtained through a v i o l a t i o n of h i s
                c o n s t i t u t i o n a l r i g h t s must p r o t e c t h i m s e l f
                by t i m e l y a c t i o n .       I f h e h a s had o p p o r t u n i t y
                t o s u p p r e s s t h e e v i d e n c e b e f o r e t r i a l and h a s
                f a i l e d t o t a k e a d v a n t a g e of h i s remedy, o b j e c -
                t i o n t o t h e e v i d e n c e upon t r i a l w i l l n o t a v a i l
                him.' 7 1 Mont. 290, 229 P . 406.                       See a l s o
                S t a t e v . G a l l a g h e r , 162 Mont. 1 5 5 , 509 P.2d
                852."         173 Mont. a t 190, 567 P.2d a t 37-38.

        I n t h e c a s e a t b a r , we have a d e f e n d a n t , who w a s aware

from t h e t i m e of h i s a r r e s t on A p r i l 22, 1981, t h a t he had

made damaging s t a t e m e n t s .         Indeed, according t o O f f i c e r

Smith, h e a t t e m p t e d t o r e t r a c t them w h i l e i n t h e h o l d i n g

cell a f t e r h i s a r r e s t .     H e d i d n o t submit h i s motion t o

s u p p r e s s t h o s e s t a t e m e n t s u n t i l August 1 7 , 1981, a l m o s t f o u r

months a f t e r he w a s c h a r g e d w i t h t h e s e x u a l a s s a u l t , on t h e
first day of trial, after the jury was seated.    His motion
was oral, rather than written as required under section 46-
13-301, MCA.   Defendant did not provide the prosecution with
the 10 days notice required by that statute and upheld by
this Court.    Under the circumstances, we find that the
District Court properly denied defendant's motion to suppress,
regardless of the fact that it did not rule immediately upon
the question of timeliness, and did not explain the reason
for the denial.
     Defendant claims that timeliness is brought in as a
"new issue," and is not applicable here, as it was in Briner
and Hall, because his motion was not a motion to suppress,
but a motion in limine.   We are not convinced.   The purpose
of the motion was to prevent the evidence of defendant's
statements to Officer Smith from reaching the jury.   The
effect of the motion, had the District Court granted it,
would have been the same as if the District Court had granted
a motion to suppress.   Defendant's motion in limine was, in
fact, a motion to suppress, and, as such, was subject to the
time and notice requirements of section 46-13-301, MCA.
When defendant first presented his oral motion to the District
Court the first day of trial, the State objected that it was
untimely.   When, during Officer Smith's testimony, the
motion was again presented to the court, the State again
argued that the 10 day notice requirement had not been met.
The State was raising no new issue when it argued on appeal

that the District Court's denial of defendant's motion
should be upheld because the motion was untimely.   Defendant's

argument is without merit.
     Under section 46-20-702, MCA, when the record on appeal
discloses to this Court that substantial rights of the
defendant have been prejudiced due to constitutional error,
we may overturn a conviction.    See State v. Austad (1982),

- Mont. -   ,    641 P.2d 1373, 1382, 39 St.Rep. 356, 366.
That is not the case here.    Defendant's statements that he
had been in T.A.'s bedroom for a short time, and that people
had chased him around the neighborhood, were reiterated by

defendant to Officer Smith in the patrol car after defendant

had received full Miranda warnings.     The evidence would have
been before the jury in any case.     We do not find that the
slight cumulative effect of admitting the pre-Miranda state-
ments warrants consideration of the constitutionality of
their admission where, as here, the defendant has waived his
right to object to their admission by his failure to timely
move for their suppression under section 46-13-301, MCA.

     Affirmed.
