                            NO.    95-301
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1996

STATE OF MONTANA,
     Plaintiff and Respondent,
     v.
KATHLEEN FAY SCHINDLER,
     Defendant and Appellant.




APPEAL FROM:   District Court of the Fifth Judicial District,
               In and for the County of Jefferson,
               The Honorable Frank M. Davis, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Charles E. Petaja, Helena, Montana
          For Respondent:
               Joseph P. Mazurek, Attorney General,        Patricia
               Jordan, Assistant Attorney General, Helena, Montana;
               Valerie D. Wilson, Jefferson County Attorney,
               Boulder, Montana


                            Submitted on Briefs:       November 30, 1995
                                            Decided:   February 6, 1996
Filed:
                                     ,l



                                  &lerk
Justice James C. Nelson 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.
     Kathleen Fay Schindler (Schindler), was convicted by a jury in
the District Court for the Fifth Judicial District,           Jefferson
County, of assault and criminal mischief, both misdemeanors.        She
appeals the Order of the District Court granting the State's
Motions in Limine excluding several of her witnesses.        We affirm.
     We address the following issues on appeal:
     1.       Did the District Court err in excluding all defense
witnesses on the basis that they had not been disclosed in a timely
fashion?
     2.       Did the District Court err in excluding several defense
witnesses on the basis that their testimony would not be relevant
to the charges facing Schindler?
                             Background Facts
     On May 3,      1993,   Todd Hamper (Hamper) and Keith Jennings
(Jennings),     employees of Pegasus Gold Mine, were driving along
Basin Creek Road toward the mine when Schindler and Gordon Ford
(Ford) signaled them to stop.           Ford approached the vehicle and
accused the two men of speeding along the gravel road.        Ford told
them that if they didn't slow down he would throw the hatchet he
                                    2
was holding through their window.
        As Ford approached the men, Hamper, who had been driving, got
out of the vehicle to speak with him.            Ford calmed down as he
discussed the situation with Hamper. Schindler, on the other hand,
continued to yell profanities at Hamper and Jennings and threatened
to get her gun and shoot them if they continued to speed past her
house.
        Hamper    returned to the vehicle and,       as he drove away,
Schindler began throwing rocks at them.            One rock struck the
vehicle just below the wing window on the passenger side. As
Hamper and Jennings drove toward the mine, they encountered their
boss, Dave Swanson (Swanson).        They stopped their vehicle to tell
Swanson of the incident and to inspect the vehicle for damage.
They discovered a dent below the wing window on the passenger side.
        Swanson filed a complaint with the Jefferson Country Sheriff's
Department over the incident.        Ford and Schindler were each charged
with one count of assault.        In addition, Schindler was charged with
one count of attempted deliberate homicide for another incident
occurring on June 10, 1993.        Schindler was arrested at her home on
June 17, 1993, pursuant to a warrant.
        On June 22, 1993, an amended complaint was filed in justice
court dismissing the attempted deliberate homicide charge and
adding a charge of criminal mischief for the damage to the vehicle
in the May 3, 1993 incident.         Schindler was convicted in justice
court     on March 4,     1994,   of misdemeanor assault and criminal
mischief.        Ford was acquitted of the charge against him.
     Schindler filed a notice of appeal in the Fifth Judicial
District    Court,   but the District Court dismissed the appeal as
untimely.    Schindler appealed to this Court and the District Court
order was subsequently reversed and the case was remanded for
trial.
     Schindler elected to represent herself at trial and notified
the District Court to that effect by letter dated January 22, 1995.
At the February 17,       1995    Omnibus    Hearing,   the District Court
ordered that all motions,         notices and trial briefs be filed at
least ten days prior to the trial scheduled for April 10, 1995.
Schindler filed her pretrial brief on March 23, 1995.            Her brief
included a list of all witnesses she intended to call at trial.
     On March 22, 1995, the State filed two motions in limine.         The
first requested that the District Court exclude any witnesses or
defenses that had not been disclosed in a timely fashion and the
second requested that the District Court prohibit Schindler from
calling any witnesses to testify about events other than those
relating to the May 3,           1993 incident for which she had been
charged.     The District Court granted the State's motions and moved
up the trial date to April 6, 1995.
     On the day set for trial,              following jury selection, the
District Court addressed Schindler's inquiry into why she was not
allowed to call witnesses. The possible testimony of each proposed
defense witness and its relevance to the May 3, 1993 incident was
discussed.     The District Court determined that Gordon Ford was the
only relevant witness on Schindler's list who had not already been

                                      4
subpoenaed by the State.         The court advised Schindler that she
could call Ford as a witness.
     Immediately following the District          Court's   inquiry     into
Schindler's      witnesses,   the State proceeded with its case.        The
State called several witnesses who were also on Schindler's witness
list and Schindler was allowed to question each witness.             At the
close of the State's case, Schindler advised the court that she had
been unable to locate Ford.        The District Court offered to grant
her additional time to locate her witness but she declined.             She
also declined to testify on her own behalf and she rested without
presenting any testimony.
     The case was submitted to the jury and Schindler was convicted
of misdemeanor assault and criminal mischief.      She was given a six-
month suspended sentence and fined $500 on each offense.
                                  Issue 1.
     Did the District Court err in excluding all defense witnesses
on the basis that they had not been disclosed in a timely fashion?
      In its Order filed March 24, 1995, the District Court granted
the State's Motion in Limine to prohibit the defense from calling
any witnesses, offering any evidence, or raising any defense which
had not been disclosed in a timely fashion pursuant to 5 46-IS-
329(4),   MCA.
      Section 46-15-329, MCA, provides:
     Sanctions. If at any time during the course of the
     proceeding it is brought to the attention of the court
     that a party has failed to comply with any of the
     provisions of this part or any order issued pursuant to
     this part, the court may impose any sanction that it
     finds just under the circumstances, including but not
                                      5
     limited to:
     i4i . precluding a party from calling a witness, offering
     evidence, or raising a defense not disclosed . . . .
     We have previously stated that § 46-15-329, MCA, endows a
district court with the discretion and flexibility to impose
sanctions commensurate with the failure to comply with discovery
orders and that, absent a clear abuse of discretion, we will not
interfere with the trial court's decision.               State v. Haskins
(1994), 269 Mont. 202, 207, 887 P.2d 1189, 1192-93 (citing State v.
Waters (1987), 228 Mont. 490, 495, 743 P.2d 617, 621).
     Schindler argues that the District Court violated her due
process   rights by   "summarily       granting"   the     State's   motion
prohibiting her from calling any witnesses on her behalf and that
she was denied a fair trial.   The State argues that the District
Court properly excluded the testimony of witnesses where proper
notice had not been given pursuant to § 46-15-323, MCA.
     Section 46-15-323, MCA, provides in pertinent part:
           (6)  Within 30 days after the arraignment or at a
     later time as the court may for good cause permit, the
     defendant shall make available to the prosecutor for
     testing, examination, or reproduction:
           (a) the names, addresses, and statements of all
     persons, other than the defendant, whom the defendant may
     call as witnesses in the defense case in chief, together
     with their statements . . . .
     In its Omnibus Hearing Order filed February 27, 1995, the
District Court stated:
          All matters set forth in 5 46-13-110, MCA were
     addressed,   and have been complied      with, or are
     inapplicable except as follows:
          Discovery:   Defendant is concerned about redacted
     information from the Dispatcher logs from information
     previously supplied.   The State contends this redacted
                                   6
       information does not concern person and matters related
       to this case.     The redacted information is to be
       furnished to the Court for an in camera review, and
       supplied to Defendant by the Court if determined to be
       relevant to this case.
            Just Notice (Other crimes, wrong or acts):    If the
       State determined this notice applicable, it shall be
       given ten days prior to trial.
            Other notices and motions: Any other notices and
       motions shall be filed or submitted ten days before
       trial, as well as trial briefs, proposed instructions and
       a verdict form.
       It would appear from these comments by the District Court that
the court extended the provisions of § 46-15-323(6), MCA, to ten
days     before     trial.   Since Schindler filed her pretrial brief
containing her list of witnesses on March 23, 1995, and trial had
been set for April 10, 1995, Schindler was in compliance with the
court's order.        The District Court erred in finding that Schindler
had not complied with disclosure provisions and the court abused
its discretion by imposing sanctions and excluding Schindler's
witnesses.
       The State also contends that Schindler was required to give
notice of her defenses prior to trial.        However, § 46-15-323, MCA,
only requires notice of certain defenses, such as alibi, mistaken
identity,     and    entrapment.   Schindler need not give notice of a
general defense that the State could not prove its case, providing
that she does not use any of the defenses enumerated in § 46-15-
323,   MCA.
                                   Issue 2.
       Did the District Court err in excluding several defense
witnesses on the basis that their testimony would not be relevant
to the charges facing Schindler?
                                      7
       III its Order granting the State's motion to exclude witnesses
not   timely   identified and disclosed, the District Court did not
specifically       grant    the State's    second motion to only allow
testimony relevant to the May 3, 1993 incident.            However, the court
did state that it reserved the right
       to reconsider this order, provided that the Defendant
       immediately advise the Court as to why these proposed
       witnesses were not timely disclosed, and a summary of
       proposed testimony and its relevance to the pending
       charges.   [Emphasis added.]
       At trial,      the District Court reviewed each witness on
Schindler's list           and determined that many of the witnesses
Schindler intended to call were not present at the May 3, 1993
incident,      would not have any testimony relevant to the charges
facing Schindler, and should, therefore, be excluded,               The court
determined that those witnesses with relevant information, with the
exclusion of Gordon Ford, had already been subpoenaed by the State
and Schindler would have the opportunity to question them.
        The standard of review for evidentiary rulings is whether the
district court abused its discretion.           State v. Gollehon (1993),
262 Mont. 293, 301, 864 P.2d 1257, 1263.             The    determination   of
whether evidence is relevant and admissible is left to the sound
discretion of the trial judge and will not be overturned absent a
showing of abuse of discretion.           Gollehon, 864 P.2d at 1263.
        Since Schindler was only charged with crimes occurring on May

3,    1993,    any testimony regarding incidents of a later date were
properly excluded by the District Court.           As to witness Ford who
was present at the May 3, 1993 incident, the District Court offered

                                      8
to grant Schindler additional time to locate Ford and allow him to
testify.     However, Schindler declined the court's offer and stated
"I don't know that he's going to produce much more than Mr. Hamper
and Mr. Jennings did . . . .I'      While the District Court initially
may have been in error to exclude Ford, it corrected the error by
allowing Ford to be called and when he could not be located,
offered Schindler additional time to locate him.
     Accordingly,       we hold that the District Court did abuse its
discretion in this case by excluding all defense witnesses as not
timely     disclosed.    However, we hold that the error was harmless
because those witnesses that were not called to testify were
properly     excluded, with the exception of witness Ford, as their
testimony was not relevant to the charges facing Schindler. We
will not reverse a district court judgment for error which is
harmless. Section 46-20-104, MCA; State v. Rothacher (Mont. 1995),
901 P.2d 82, 67, 52 St.Rep. 772, 775.
     Affirmed.
