No. 93-476 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

STATE OF MONTANA, 

Plaintiff and Appellant, 

v. 

JEFFREY WALDRUP, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C. B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Joseph Mazurek, Attorney General, 

Barbara C. Harris, Assistant Attorney General, 

Helena, Montana 

Larry J. Nistler, Lake County Attorney, 

Mitchell A. Young, Assistant Lake County 

Attorney, Polson, Montana 

For Respondent: 

Deborah Kim Christopher, French, Mercer 

& Grainey, Polson, Montana 

Submitted on Briefs: February 10, 1994 

Decided: April 11, 1994 

Filed: 
Justice James C. Nelson delivered the Opinion of the Court. 

The State of Montana (State) appeals an order of the Twentieth 

Judicial District Court, Lake County, dismissing the Information 

filed against the defendant/respondent, Jeffrey Waldrup, 

(defendant) charging him with four counts of indecent exposure, a 

felony pursuant to 5 45-5-504, MCA. The District Court dismissed 

the Information on the basis that 5 46-11-503, MCA, is an absolute 

bar to prosecution of the offenses charged in the Information. We 

hold that 46-11-503, MCA, does not bar prosecution of the 

defendant for the four counts of indecent exposure charged in the 

Information. We therefore, reverse and remand for reinstatement of 

the charges and further proceedings. 

One issue raised by the parties is dispositive in this case: 

Did the District Court err in granting defendant's motion to 

dismiss by applying 5 46-11-503, MCA, to the offenses charged in 

the Information, when those charges were separate transactions from 

the previous convictions? 

On March 31, 1993, the Polson City Police Department charged 

the defendant with three counts of indecent exposure for incidents 

occurring March 20, 22, and 31, 1993. The defendant appeared in 

Polson City Court on April 1, 1993, where the city judge advised 

the defendant of his rights and the defendant waived those rights. 

Upon investigating one of the charges at this appearance, the city 

judge dismissed that charge, and the defendant pled guilty to the 

remaining two counts of indecent exposure. The defendant was 

sentenced on April 7, 1993, on the two misdemeanor charges to which 

2 
he had pled. 

After defendant had been charged with the above mentioned 

three counts of indecent exposure, the police continued to 

investigate previous reports of a man exposing himself. The 

defendant was a suspect. In pursuing the investigation, the police 

contacted prior alleged victims to determine if they could identify 

the defendant as the perpetrator. Four victims were able to 

identify the defendant as the perpetrator from a photographic 

1 ineup . As a result of these identifications, the Lake County 

Attorney's Office filed an Information on April 16, 1993, charging 

the defendant with four counts of indecent exposure in violation of 

5 45-5-504, MCA. The incidents charged in the Information 

allegedly occurred on September 23, 1992, October 15, 1992, March 

22, 1993 and in September 1992, and involved four different 

victims. 

According to the terms of 5 45-5-504(2)(c), MCA, upon a third 

or subsequent conviction of indecent exposure, a defendant's 

punishment can be enhanced to a felony. Because the defendant had 

been convicted of two counts of indecent exposure by pleading 

guilty to the two charges in City Court, he now faces felony 

charges for the four counts charged in the Information. 

The defendant moved to dismiss the charges on the grounds that 

prosecution was barred under g 46-11-503, MCA, for reasons of 

fundamental fairness, and because the prosecution violated various 

constitutional provisions. After considering the parties' briefs 

and oral arguments, the District Court granted the defendant's 
motion to dismiss by order dated July 8, 1993. The State appeals 

from that dismissal. 

The District Court based its order of dismissal. on 5 46-11- 

503, MCA, holding that the statute was absolute bar to the 

prosecution of the offenses charged in the In£ ormat ion. In 

applying 5 46-11-503, MCA to the facts, the District Court reasoned 

that: (1) all of the facts constituting the offenses charged in the 

Information were contained in the Polson City Police files and were 

therefore known, or should have been known to the prosacutor at the 

ti.me the subsequent offenses were prosecuted to conviction in the 

Polson City Police Court; (2) the probable cause which was found to 

exist at the tine the Information was filed existed on the d a t e t h e 

di:Eeildant was sentenced in City Co~lrt ; (3) the incidents, ~vhich 

were the hasis c~f tt~e offefises charged in the Informafion were 

consumiilatec! prior td the iilcidcn-ts which were the hsi.:; of the 

defendant's City Court convictions; and (4) the Polson Cik.y Court 

con.+ict.ions of defendant had not been set aside, reverszd or 

vacz.ted. 

The Di.strict Court did not address whether the incidents 

::harcjed in thc Information were park of the same transac.ti:an as the 

convj cted offenses. However, one week after the L'istrj ct Court 

issued its order of dismissal in this case, we r7~led in State v. 

Eerger (l993), 259 Mont. 364, 856 P.2~1 552, that 9 46-11-503, MCA, 

applied cnly tc cases involving the sane transactions. Nsc having 

the henef j.t of the Berqer decision, the Dj strict Ccurt erroneously 

applied 5 46-11-50:, MCA, to bar the subsequent felony charges on 
the basis of double jeopardy. 

In Berqer, we ruled that the 1991 amendments to 1 46-11-503, 

MCA, did not eliminate the llsame transaction" requirement from what 

is now subsection (l)(b) and did not expand the protection of the 

statute to unrelated offenses. Berqer, 856 P.2d at 553. The 

defendant in Berqer, sold dangerous drugs to an informant. The 

next day, officers executing a search warrant found marijuana in 

the defendant's house, and charged him with two counts of 

possession of dangerous drugs. The defendant pled guilty to the 

possession charges in justice court. Three months later an 

Information charging Berger with sale of dangerous drugs was filed 

in District Court. 

Berger appealed the charge, alleging that the 1991 amendments 

to 5 46-11-503, MCA, eliminated the same transaction requirement 

from 5 46-11-503(1) (b), MCA, and expanded the protection of the 

statute to unrelated offenses. However, this Court ruled that g 

46-11-503, MCA, did not bar prosecution of the defendant for sale 

of dangerous drugs. "Neither the legislative history nor the 

Commission Comments reveal that the legislature intended to 

substantively change the application of § 46-11-503, MCA, from 

prosecutions resulting from the same transaction to unrelated 

prosecutions." Berqer, 856 P.2d at 554. 

In the instant case, the defendant has been charged with four 

separate counts of indecent exposure. The incidents are not part 

of the same transaction, as they allegedly occurred on four 

different dates and involve four different victims. The term 
"same transactionw is defined at 5 46-1-202 (23) , MCA (1991) , as 

follows: 

"Same transactionH means conduct consisting of a series 

of acts or omissions that are motivated by: 

(a) a purpose to accomplish a criminal objective and that 

are necessary or incidental to the accomplishment of that 

objective; or 

(b) a common purpose or plan that results in the repeated 

commission of the same offense or effect upon the same 

person or the property of the same person. 

The defendant allegedly exposed himself to different victims on 

different dates in each of the charged incidents. Therefore, the 

incidents cannot be part of a plan resulting in the repeated 

commission of the same offense against the same person. 

Because 5 46-11-503, MCA, applies only to prosecutions arising 

from the same transaction, this statute does not bar prosecution of 

the four counts of indecent exposure. Therefore, we reverse the 

District Court's decision, and remand for reinstatement of the 

charges and further proceedings. 

Defendant raised other arguments on appeal. Inasmuch as the 

District Court did not address those other arguments and inasmuch 

as the defendant has not been convicted of or sentenced on any of 

the four charges at issue here, defendant's arguments are 

premature. We decline to address t 

Reversed and remanded. 

We Concur: 
Justices 

Chief Justice J. A. Turnage did not participate. 
Justice Terry N. Trieweiler dissenting. 

I dissent from the majority opinion. 

In its opinion, the majority observes that the District Court 

did not have the benefit of the decision in Statev. Berger (1993), 259 

Mont. 364, 856 P.2d 552, and therefore, misapplied 5 46-11-503, 

MCA . However, the District Court applied 5 46-11-503, MCA, 

correctly. It is the majority who misapplied that section in Berger 

by adding language to the statute which the Legislature did not 

include simply because the majority thinks it ought to be there. 

The majority erroneously concludes that when, in 1991, the 

Legislature removed the Issame transaction" language from 

5 46-11-503, MCA, it did not mean to do so, and therefore, the 

majority, in its wisdom, has restored that language to the statute. 

In doing so, the majority has, in the Berger decision, and again in 

this case, greatly exceeded its judicial authority. It is Berger 

which should be reversed--not the District Court. 

The relevant portion of 5 46-11-503, MCA, is plain and clear 

on its face. It provides that: 

(1) When two or more offenses are known to the 

prosecutor, are supported by probable cause, and are 

consummated prior to the original charge and jurisdiction 

and venue of the offenses lie in a single court, a 

prosecution is barred if: .... 

(b) the former prosecution resulted in a conviction 

that has not been set aside, reversed, or vacated . . . . 

As pointed out in my dissent to Berger, the majority held 

otherwise by inserting into 5 46-11-503 (I), MCA, the requirement 
that the offenses be part of the "same transaction." In doing so, 

the majority violated a cardinal principle of statutory 

construction. Section 1-2-101, MCA, provides as follows: 

In the construction of a statute, the office of the judge 

is simply to ascertain and declare what is in terms or in 

substance contained therein, not to insert what has been 

omitted or to omit what has been inserted. 

While once again ignoring the plain language of the statute, 

the majority has based its decision on its contention that the 

Legislature did not mean to say what it clearly did say when it 

amended § 46-11-503, MCA. Therefore, the majority ignores the 

plain language of that section in favor of what it concludes was 

the Legislature's intent. However, in doing so, the majority has 

violated a second rule of construction which we have previously 

articulated in our decisions. 

In White v. White (1981), 195 Mont. 470, 473-74, 636 p.2d 844, 

845-46, we held that: 

The intention of the legislature must first be determined 

from the plain meaning of the words used, and if 

interpretation of the statute can be so determined, the 

courts may not go further and apply any other means of 

interpretation. Haker v. Southwestern Railway Co. ( 1978) , 176 

Mont . 364, 578 P. 2d 724 ; Montana Assn. of Undewriters v. State of 

Montana (1977), 172 Mont. 211, 563 P.2d 577. Where the 

language of a statute is plain, unambiguous, direct and 

certain there is nothing left for the court to construe. 

DouNv. Wohlschlager (1963), 141 Mont. 354, 377 P.2d 758: 

National Electric Contractors Assn. v. State Board of Education ( 1960) , 13 7 

Mont . 382, 3 52 P. 2d 258 ; Vaughn & Ragsdale Co. v. State Board of 

Equalization (1939), 109 Mont. 52, 96 P.2d 420. The 

function of the Court in construing a statute is simply 

to ascertain and declare what is in terms or in substance 

contained therein, not to insert what has been omitted or 

omit what has been inserted. Section 1-2-101, MCA. In 

short, it is simply the duty of the Supreme Court to 
construe the law as it finds it. Dunphy v. Anaconda Co. 

(1968), 151 Mont. 76, 438 P.2d 660, and cases cited 

therein. 

In State v. Hubbard (1982), 200 Mont. 106, 111, 649 P.2d 1331, 

1333, we held that I1[t]here is simply no reason for the use of 

legislative history to construe a statute where the language is 

clear and unambiguous on its face." 

Even more recently, in Dom v. Board of Thustees of Billings School District 

(1983), 203 Mont. 136, 144, 661 P.2d 426, 430, we held that: 

The primary tool for ascertaining intent is the plain 

meaning of the words used. The Court properly refers to 

legislative history only when intent cannot be determined 

from the content of the statute. The instant statute 

does not necessitate such an inquiry. 

In this case, defendant was charged on March 31, 1993, with 

three counts of indecent exposure which were alleged to have 

occurred on the dates of March 20, 22, and 31, 1993. However, on 

the date that he was charged with these three offenses, the Chief 

of Police had already received complaints regarding the four 

offenses with which defendant was subsequently charged on April 16, 

1993. An investigation had been conducted; defendant's description 

had been given; and the Chief of Police admitted that based on the 

information in the Police Department's investigative files, and 

defendant's responses to questioning, he strongly suspected that 

defendant had committed the previous offenses. The only additional 

evidence that was obtained by the State prior to charging defendant 

with the additional four offenses was the victims' positive 

identification in response to a photographic lineup. However, even 
this information was obtained by April 5, 1993, two days before 

defendant was sentenced on the original three charges. Therefore, 

I conclude, as did the ~istrict Court, that all of the necessary 

elements were present for the application of 5 46-11-503, MCA: 

1. All of the offenses which were charged on April 16, 1993, 

were known to the State when defendant was charged with three 

separate offenses on March 31, 1993; 

2. There was probable cause to file all charges against 

defendant when the original three charges were filed, and at least 

before defendant was sentenced for the two charges to which he pled 

guilty; 

3. All of the offenses which are the subject of the 

April 16, 1993, information were committed prior to the charges 

which were filed on March 31; and 

4. Because a third offense of indecent exposure is 

punishable as a felony, jurisdiction for all offenses, if filed 

concurrently, would have been in the District Court. 

This case is a perfect example of the reason why 5 46-11-503, 

MCA, was enacted and should be applied as written. Section 

45-5-504, MCA, provides that a first conviction of indecent 

exposure is punishable by a fine not to exceed $500 and 

imprisonment for not more that six months. A second conviction is 

also punishable as a misdemeanor. The fine shall not exceed $1000, 

and the term of imprisonment shall not be more than one year. 

However, subsection (c) provides that a third conviction is 
punishable by a fine of up to $10,000 and imprisonment for a period 

of up to five years, or both. 

In this case, defendant was taken before the City Court 

without an attorney. It is true that his rights were explained to 

him and that he waived his right to be represented. However, the 

only consequences of his waiver and plea that were ever explained 

to him were the potential misdemeanor penalties. Defendant pled 

guilty to two counts of indecent exposure, not knowing that those 

two convictions would be the predicate for felony charges based on 

conduct already committed and reported, but not yet charged. In 

other words, whether it was by design or inadvertence on the 

State's part, defendant was sandbagged. 

Nine days after his plea entry to two misdemeanor charges, the 

State brought its motion for leave to file an information alleging 

four incidents of indecent exposure, all of which occurred prior to 

defendant's unrepresented guilty plea, and the consequences of 

which could be a $40,000 fine and 20 years in prison. As pointed 

out, the unfairness of this whole process was recognized by the 

District Court, when in response to the State's argument that 

defendant waived his rights in the City Court, it pointed out that: 

THE COURT: But he didn't ask for an attorney when he was 

charged with two misdemeanors. But because he pled 

guilty to the two misdemeanors, he's now looking at 20 

years in the Montana State Prison? 

MR. YOUNG: But, your Honor, isn't that the same for 

anyone who comes into the Court and pleads guilty to a 

domestic abuse, and then later is charged with a third 

offense? 
THE COURT: If the third offense occurs later. But if he 

committed all three at the time he comes in and pleads 

guilty to two -- and your file is sitting there with all 

the information about the third one -- shouldn't you be 

required to charge him with all three at the same time so 

he knows what he is faced with? That's the Defendant's 

argument, is that the police file contained every bit of 

information that is now in this felony file. The only 

difference was that the Sergeant drove out with the photo 

I.D. after he had entered the guilty plea to two 

offenses, and those victims then identified this 

Defendant. 

The majority was wrong when in Berger it added language to a 

statute in order to accomplish what the majority concluded was the 

appropriate result. This case clearly illustrates the error of, 

and potential for unfairness from, the majority's decision. The 

majority should admit its mistake and affirm the order of the 

District Court. 

For these reasons, I dissent from the majority opinion. 

Justice William E. Hunt, Sr., joins in the foregoing dissent. 

Justice 
April 11, 1994 

CERTWICATE OF SERVICE 

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

following named: