NO. 93-215

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Respondent,

v.

ANTHONY CHRIS EICHENLAUB, a/k/a Tony

Eichenlaub, and TIMOTHY JOHN CARTER,

a/k/a/ Tim Carter,

Defendants and Appellants.

APPEAL FROM: District Court of the Third Judicial District,

In and for the County of Powell,

The Honorable Byron L. Robb, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, Appellate Defender Office,

Helena, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Carol Schmidt, Assistant Attorney General,

Helena, Montana

Christopher G. Miller, Powell County

Attorney, Deer Lodge, Montana

Filed:

Submitted on Briefs: March 30, 1995

Decided: August 15, 1995
Justice Terry N. Trieweiler delivered the opinion of the Court.

The defendants, Anthony Eichenlaub and Timothy Carter, were

charged with felony kidnapping, in violation of 5 45-5-302, MCA,

felony sexual intercourse without consent, in violation of

5 45-5-503, MCA, and misdemeanor assault, in violation of

§ 45-5-201, MCA. Following presentation of the State's evidence,

the District Court dismissed the charge of sexual intercourse

without consent by accountability which had been filed against

Eichenlaub. The defendants were found guilty of the other crimes

with which they had been charged. After the jury's verdict, the

District Court entered judgments of conviction, and sentenced each

defendant to the Montana State Prison. The defendants appeal from

the District Court's judgments and sentences. We affirm the

judgments and sentences of the District Court.

The issues on appeal are:

1 . Did the District Court err when it admitted evidence that

Eichenlaub assaulted and injured Sue Maxie several days prior to

the date of the crimes charged?

2 . Did the District Court abuse its discretion when it

designated the defendants dangerous offenders for purposes of

parole?

3 . Did the District Court appropriately consider and discuss

alternatives to imprisonment for Eichenlaub?

FACTUAL BACKGROUND

Sue Maxie and Tony Eichenlaub were involved in a turbulent and

sometimes physically abusive relationship beginning approximately
in February 1992. During their relationship, Sue and Tony

separated and reunited several times. From sometime in May to

June 9, 1992, Sue lived with Eichenlaub on his mother's ranch near

Ovando.

On approximately June 5 or 6, 1992, Sue visited her friend

Sheila Welsh in Missoula. Sheila testified that at that time she

noticed Sue's face was bruised and that hair was missing from the

side of her head. Sue's ex-husband, Robert Maxie, testified that

he also saw Sue on June 5 or 6, 1992, and observed similar bruises

and missing hair. Sheila and Robert testified that they were

concerned about Sue's safety because of the injuries they observed.

As a result of their concern, Sheila and Robert decided to

help Sue leave the ranch. On June 9, 1992, Sheila and Robert drove

Robert's car to the Ovando area on two different occasions. On

their first trip, Sheila did not find anyone at the ranch, but left

notes for Sue. Sheila and Robert then drove back to Missoula,

where they received a telephone call from Sue. They discussed with

her a plan to help her leave the ranch, and returned to Ovando to

assist her. Sheila dropped Robert off at Clearwater Junction and

drove to the ranch property. Sheila testified that when she

arrived at the ranch, Sue opened the gate for her and then climbed

into Robert's car with her. Sheila testified that Carter was also

standing near the gate and advised them that they could not leave

until they told Eichenlaub of their intentions.

Sheila and Sue drove to a cabin where Eichenlaub had been

sleeping to advise him they were leaving. They testified that a

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physical altercation followed, during which they were beaten by the

defendants.

After this incident, Sheila testified that Carter took her

outside where he assaulted her, and ultimately to a trailer where

he forced her to have sexual intercourse. Sheila testified that

when Eichenlaub came into the trailer, she asked him for help, but

that he responded that she was getting what she deserved. Sue

testified that Eichenlaub took her to the trailer where Sue

observed Sheila and Carter lying naked in the bed and noticed that

there was blood on Sheila's face and on the pillow.

Eventually Sue walked to the highway where she stopped a

passing truck driver and asked for a ride. However, while she was

climbing into the truck, Eichenlaub pulled her down from the truck

and took her back to the ranch. The truck driver called 911 to

report the incident at a nearby phone booth.

Robert Maxie testified that sometime during the several hours

that had transpired that evening he jogged and walked from

Clearwater Junction to the ranch and hid in the back of his car.

Finally, Sheila and Sue were able to get into the car, left through

a gate which had been recently opened, and returned to Missoula.

On June 12, 1992, Sheila and Sue traveled to Deer Lodge to

report what had happened to the police. Later that day, the

defendants were arrested and were subsequently charged by

information with kidnapping, in violation of § 45-5-302, MCA,

sexual intercourse without consent, in violation of 5 45-5-503,

MCA, and misdemeanor assault, in violation of 5 45-5-201, MCA.

4
At trial, after the State presented its evidence, the District

Court dismissed the charge of sexual intercourse without consent by

accountability which had been filed against Eichenlaub. The jury

found the defendants guilty of the remaining charges. The District

Court entered judgments of conviction against the defendants, and

designated both dangerous offenders. Eichenlaub was sentenced to

the Montana State Prison for six months for assault, and six years

for kidnapping. The sentences are to be served concurrently.

Carter was sentenced to the same terms as Eichenlaub for the

assault and kidnapping convictions, plus another four years for

sexual intercourse without consent. The additional four years are

to be served consecutively.

ISSUE 1

Did the District Court err when it admitted evidence that

Eichenlaub assaulted and injured Sue Maxie several days prior to

the date of the crimes charged?

The defendants contend that the District Court erred when it

allowed evidence of Eichenlaub's prior bad acts, because the State

failed to give the defendants prior notice of its intent to offer

the evidence. &tev.MuN (1991), 249 Mont. 136, 814 P.2d 52;Stutev.

Croteau (lYYl), 248 Mont. 403, 407, 812 P.2d 1251, 1253; statev. Just

(19791, 184 Mont. 262, 602 P.2d 957. The four photographs at issue

show that Sue was missing clumps of hair and had scratches on her

face as a result of a physical altercation with Eichenlaub four

days prior to the date of the acts for which the defendants were

5
charged. Defendants objected to the photographs, stating they were

irrelevant "because it has already happened way before this

incident even took place." Although they did not specifically

mention Rule 404(b), M.R.Evid., we will construe their objection as

based on that rule.

The State responds that the photographs were admissible as

part of the res gestae or corpus delicti, but that if the court erred when

it admitted the photographs, the error was not prejudicial. We

agree that any error was not prejudicial.

Section 46-20-701, MCA, states, in relevant part, that "[n]o

cause shall be reversed by reason of any error committed by the

trial court against the appellant unless the record shows that the

error was prejudicial." When prejudice is alleged in a criminal

case the prejudice will not be presumed, rather, it must be

established from the record that a substantial right was denied.

statev. We’elh (1983), 202 Mont. 337, 349, 658 P.2d 381, 388. In Wells,

we also stated that the test is whether there is a reasonable

possibility that the inadmissible evidence might have contributed

to a conviction. wells, 658 P.2d at 388 (citing statev. Lab’e (1977),

174 Mont. 401, 407, 571 P.2d 97, 101); %atev.Bower (1992), 254 Mont.

1, 6, 833 P.2d 1106, 1109. In Bower, we added that when assessing

the potentially prejudicial effect of an error, we examine the

totality of the circumstances in which the error occurred. If the

issue involves inadmissible evidence, we will not evaluate the

6
evidence in isolation because that would risk magnifying the error

beyond the impact it had on the verdict. Bower, 833 P.2d at 1109.

With these principles in mind, and after a thorough review of

the transcript, we conclude that admitting the photographs did not

constitute prejudicial error. The photographs show injuries Sue

received from fights she had with Eichenlaub on June 5, 6, or 7.

She testified that the photographs were taken by the police on

June 12 behind the police station in Deer Lodge after Sue and

Sheila reported the events that occurred on June 9.

At trial, during Sue's testimony, the State moved to admit the

photographs. The defendants, who had declined the public

defender's representation to represent themselves, objected.

Before the photographs were admitted, and in the presence of the

jury, Carter was allowed to voir dire Sue regarding the photographs.

Carter asked Sue, "[alnd isn't it true that you said that on June

5th 'Tony pulled hair out of the sides of my [Sue's] head."' Later

he asked, "[oln another time, you said that 'On June 7th Tony

pulled hair out of the top of my [Sue's] head.' Is that true?" He

added, "[a]nd scratched my [Sue's] face?" Sue responded that what

Carter stated in voirdire was true. After dismissing the jury and

hearing arguments, the court admitted the photographs.

Before the photographs were admitted, Carter's voir dire

explained what the photographs illustrated. Additionally, and

without objection, Sue had previously responded to one of the

State's questions about the events of June 9 by stating that, "by
then Sheila was mad, she had seen what Tony had already done to me,

the scratches on my face, the hair pulled out . .I' Therefore,

before the photos were admitted, and without objection by the

defendants, the jury was aware of the prior attacks, the dates on

which they occurred, and the nature of the injuries sustained. The

photographs did not inform the jury of anything they did not

already know.

Without reaching the merits of the State's resgestae argument,

we conclude that even if the admission of evidence of Eichenlaub's

earlier attacks was in violation of Rule 404(b), under the totality

of the circumstances, it was not prejudicial error.

ISSUE 2

Did the District Court abuse its discretion when it designated

the defendants dangerous offenders for purposes of parole

eligibility?

We review a district court's dangerous offender designation to

determine whether the district court abused its discretion. state v.

Buckman (1989), 236 Mont. 37, 41, 768 P.2d 1361, 1363.

The defendants contend that the District Court abused its

discretion when it designated them dangerous offenders because it

made no findings to support such a designation, and there was no

evidence to support such findings if they had been made. Based on

our review of the record, and the District Court's findings in

support of its judgment, we disagree.

8
The designation of an offender as either dangerous or

nondangerous is governed by 5 46-18-404, MCA, which provides in

pertinent part:

(1) . [Tlhe sentencing court shall designate an

offender a nondangerous offender for the purposes of

eligibility for parole . . if:

(a) during the five years preceding the commission

of the offense for which the offender is being sentenced,

the offender was neither convicted of nor incarcerated

for an offense committed in this state or any other

jurisdiction for which a sentence to a term of

imprisonment in excess of 1 year could have been imposed;

g-&

(b) the court has determined, based on any

presentence report and the evidence presented at the

trial and the sentencing hearing, that the offender does

not represent a substantial danger to other persons or

society.

(Emphasis added.) This statute sets forth a two-pronged test in

subparagraphs (a) and (b). If both are satisfied, a defendant must

be designated nondangerous. If one or the other prong is

satisfied, the district court may, in its discretion, designate the

offender as dangerous for purposes of parole. Buckman, 760 P.2d at

1363.

In Buckman we stated that, O[wl hen using its discretion to

determine offender status, the District Court 'may consider

persistence in criminal conduct and failure of earlier discipline

to deter or reform the defendant.'" Buckman, 768 P.2d at 1363

(quoting state v. Nichols (1986), 222 Mont. 71, 80, 720 P.2d 1157,

1163). The sentencing court must articulate its reasons for

designating an offender as dangerous, rather than merely recite the

9
statutory language of § 46-18-404(l) (a) and (b), MCA. Stutev.Morrison

(1993), 257 Mont. 282, 287-88, 848 P.2d 514, 517.

In each defendant's judgment of conviction and sentence, the

District Court incorporated its findings of fact entered after the

sentencing hearing. In its findings, the District Court set forth

reasons for its dangerous offender determination.

The District court articulated numerous reasons for

designating Eichenlaub as a dangerous offender. The court

identified his chemical dependency problem, and the fact that

despite treatment, he continued to drink and engage in unlawful

acts. It referred to numerous misdemeanor convictions and a

juvenile record. The District Court found that Eichenlaub's

behavior during trial demonstrated a lack of remorse, disrespect

for and defiance of the law and its officers, and a failure to

recognize that his unlawful actions were wrong. Finally, the

District Court found that he posed a threat to the public and the

victims.

The District Court also articulated its reasons for

designating Carter a dangerous offender. The court noted that he

also had a chemical dependency problem, yet despite treatment,

continued to drink and engage in unlawful acts. He had two prior

felony convictions in 1981 and 1982. His actions in the present

case involved physical abuse, restraint, and sexual intercourse

without consent. The District Court found that Carter's behavior

during the trial demonstrated lack of remorse, disrespect for and

defiance of the law and its officers, and a failure to recognize

10
that his unlawful actions were wrong. The District Court found

that he posed a threat to the public and the victims.

The District Court clearly articulated reasons in support of

its determination that the defendants presented a danger to society

and the victims. Its reasons are fully supported by the record.

We hold that the District Court did not abuse its discretion when

it designated the defendants dangerous offenders for the purposes

of parole.

ISSUE 3

Did the District Court fail to appropriately consider and

discuss alternatives to imprisonment for Eichenlaub?

Eichenlaub contends that the District court failed to

appropriately consider and discuss alternatives to his imprisonment

in violation of s§ 46-18-201(10), -225, -104(3), and -104(2), MCA

(1991), and therefore, that his sentence should be vacated and his

case remanded for resentencing.

The State responds that the District Court's reasons for

designating Eichenlaub a dangerous offender are sufficient to rule

out alternatives to imprisonment. We agree.

To require the District Court to consider alternatives to

imprisonment and specify the reasons why those alternatives were

not selected after the District Court has already designated a

convicted felon a dangerous offender exalts form over substance.

Of those criteria for determining whether "nonviolent"

offenders should be sentenced to prison which are set forth in

§ 46-18-225, MCA, the most conclusive consideration is found in

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subparagraph (1) which refers to the "needs of public safety." We

conclude that the needs of public safety were adequately considered

by the District Court when it set forth in its findings in support

of its sentence the reasons why it considered Eichenlaub dangerous.

Those findings include the following:

(15) Anthony Eichenlaub is now 21 years of age, of

low average intelligence with an 11th grade education, in

good health, has never married but has three children

whom he does not support, and very little work history or

experience. He seems to acknowledge having a drinking

and chemical dependency problem, and has previously gone

through the alcohol treatment program at Galen State

Hospital, but still continues to drink and create

problems for himself by unlawful actions.

(16) Mr. Eichenlaub has a lengthy juvenile record in

Missoula County, including sexual intercourse without

consent when he was 13 years old, and six misdemeanor

convictions since becoming of age, including resisting

arrest, and then a second DUI and two related

misdemeanors in Lewis and Clark County while he was out

on bond awaiting trial in this case. Tony's actions in

this case involved physical abuse and restraint of a

live-in girlfriend, Susan Maxie, and the evidence

indicated he had also been physically violent toward his

father.

. . .

(19) Neither defendant has shown any remorse

whatever to the victims herein, and the attitude of both

Carter and Eichenlaub in this whole proceeding has been

one of disrespect for and defiance of the law and its

officers, indifference to the needs of their children and

families, continual complaining of the criminal justice

system, unjustifiably placing the blame for what has

happened to them on others, and seeing nothing wrong with

their unlawful actions. As a result, and in view of

their prior records, the court finds both defendants pose

a verv real and substantial threat to the public in

qeneral, and the victims of the present case in

particular, and that thev are danoerous offenders, which

was stated orallv at sentencinq.

(Emphasis added.)

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1n addition, the court noted in its findings that both

probation officers who testified at the sentencing hearing

recommended prison terms for both defendants.

By these findings, the District Court did, as a practical

matter, satisfy the requirements of §§ 46-1%201(10) and -225, MCA.

To remand to the District Court for further findings to the same

effect would be redundant and would serve no practical purpose.

For these reasons, we affirm the judgments and sentences of

the District Court in their entirety.

We concur: