No. 89-258 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

MARK N. SMITH, 

Plaintiff and Appellant, 

-vsROOSEVELT COUNTY, MONTANA, 

and SHERIFF JOHN Q. GRAINGER, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Fifteenth Judicial District, 

In and for the County of Roosevelt, 

The Honorable M. James Sorte, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Arnie A. Hove, Circle, Montana 

For Respondent: 

Ralph J. Patch, Roosevelt County Attorney, Wolf Point, 

Montana 

Submitted on Briefs: Oct. 13, 1989 

Decided: March 8, 1990 

Filed: 
Justice William E. Hunt, Sr., delivered the Opinion of the Court. 

Mark N. Smith, plaintiff and appellant, brought this action 

against Roosevelt County and Sheriff John Q. Grainger, defendants 

and respondents, alleging that he was unjustifiably terminated from 

his position as deputy sheriff with the Roosevelt County Sheriff's 

Department. Following a trial held in the Fifteenth Judicial 

District Court, Roosevelt County, a jury returned a verdict in 

favor of defendants. Smith appeals. We affirm. 

The following issues are raised on appeal: 

1. Whether the District Court erred in denying Smith's motion 

for summary judgment. 

2. Whether Smith was denied a fair trial when the District 

Court denied his motion in limine and permitted testimony of other 

wrongdoings that were not the specific reason for his termination. 

3. Whether substantial credible evidence supported the jury's 

finding that Sheriff Grainger justifiably terminated Smith. 

4. Whether the District Court erred in refusing to allow 

opinion testimony on the legal definition of gross inefficiency. 

5. Whether the District Court erred in allowing an 

investigative report to be submitted to the jury. 

6. Whether the District Court erred in instructing the jury 

on the definitions of assault, battery and mistreatment of 

prisoners. 

7. Whether the District Court erred in instructing the jury 

in accordance with Rule 404(b), M.R.Evid. 

Roosevelt County Sheriff Dean Mahlum hired Mark N. Smith as 

a deputy sheriff on October 1, 1985. In November, 1986, John Q. 

Grainger was elected to replace Mahlum and assumed his duties as 

the new sheriff in January, 1987. 

On July 6, 1988, a Roosevelt County dispatcher and a detention 

officer observed Smith throw a young, intoxicated prisoner onto the 

floor of the booking room of the county jail and proceed to beat 
the prisoner's head into the floor. Both the dispatcher and the 

jailer charged that Smith's actions constituted an excessive use 

of force. Smith contended that the actions were needed to 

physically restrain the prisoner. 

Following an investigation, Sheriff Grainger discharged Smith 

from his employment with the department. The termination letter, 

dated July 19, 1988, read in its entirety as follows: 

This letter is to inform you that the review of the 

charges in the complaint of (Deputy Mark Smith assaulting 

prisoner Julian Deserly) has been completed and the 

disposition finding is classified as ttSustained - The 

allegation was supported by the proper and sufficient 

evidence. 

The following is to inform you that your employment as 

a Deputy Sheriff is terminated effective on the above 

date. The cause for termination is as follows: On the 

evening of July 6, 1988, at approximately 5:50 p.m., you 

did assault a prisoner in your care and custody, namely, 

Julian Deserly, at the Roosevelt County Jail. This 

assault occurred without provocation of any kind on the 

part of the prisoner. Statements made by you to Sgt. 

Brockmeyer were decisive in indicating that you had no 

control over yourself at the time the assault occurred 

and that you, for some reason, wanted to hurt the 

prisoner. 

On separate occasions in 1986 there were investigations 

into the use of excessive force. Both are documented in 

your personnel file and on one incident it is documented 

that you were suspended without pay for a period of ten 

(10) days. On your transfer to the Wolf Point area 

statements were made by you, something to the effect of, 

"when I come into a new place I like to create as much 

hate and discontent as I can." This type of attitude and 

a pattern of using excessive force cannot be tolerated. 

Other problems such as failing to complete reports 

properly or even at all and the fact that you were 

sleeping on duty while assigned to guard the Agribition 

have not even been formally addressed yet, but I believe 

the matter at hand is the major concern of this 

Department and the disciplinary action taken makes these 

other violations a moot issue at this time. 

The incident with prisoner Julian Deserly is in violation 

of the Roosevelt County Sheriff's Department's Policies 

and Procedures, Chapter 7, Section 7, Subsection 8, 
Criminal Conduct which reads as follows: 

IfDeputies will obey all laws of the United States, 

Montana State, and local jurisdictions. Violation of any 

law, an indictment or information filed against a deputy 

or a conviction will be cause for disciplinary action up 

to and including termination of employment. Internal 

discipline will not be dependent on the outcome of 

prosecution." 

And the specific law that you violated is 45-5-204 

Montana Codes Annotated, Mistreating Prisoners which 

reads as follows: 

"45-5-204. Mistreating Prisoners. (1) A person commits 

the offense of mistreating prisoners if, being 

responsible for the care or custody of a prisoner, he 

purposely or knowingly: (a) assaults or otherwise 

injures a prisoner, (b) intimidates, threatens, 

endangers, or withholds reasonable necessities from the 

prisoner with the purpose to obtain a confession from him 

or for any other purpose; or (c) violates any civil right 

of a prisoner. (2) A person convicted of the offense 

of mistreating prisoners shall be removed from office or 

employment and shall be imprisoned in the state prison 

for a term not to exceed 10 years or be fined an amount 

not to exceed $50,000.00 or both." 

Because Julian Deserly, the prisoner allegedly assaulted by 

Smith, was a Native American, the incident was referred to the 

Federal Bureau of Investigation. In the fall of 1988, an 

indictment was filed against Smith in Federal District Court, 

charging him with mistreatment of a prisoner. In January, 1989, 

a jury found Smith not guilty of the charges. 

Prior to the federal indictment, Smith timely filed a petition 

and demand for jury trial with the Fifteenth Judicial District 

Court, Roosevelt County, pursuant to 5 7-32-2109, MCA, which 

provides : 

Any deputy sheriff whose employment is terminated may, 

within 30 days from the date of the termination of his 

employment, make application to the district court of the 
county wherein the deputy was employed for a hearing 

before the court, with or without jury, on the charges 

resulting in the deputy's termination of employment or 

discharge. 

Smith sought reinstatement of his employment with the sheriff's 

department pursuant to 5 7-32-2110, MCA, which provides: 

In the event that a deputy prevails at the hearing 

provided for in 7-32-2109, he shall be entitled to be 

reinstated as a deputy sheriff at the same salary he 

received prior to his discharge or termination of 

employment and he shall also be entitled to any rights 

that might have accrued to his benefit prior to his 

discharge or termination of employment, including that 

salary which he would have received but for the 

termination. 

Following his acquittal on the criminal charges in federal 

court, Smith filed a motion for summary judgment in the Roosevelt 

County District Court. At a hearing held February 21, 1989, the 

District Court denied Smith's motion for summary judgment and set 

trial for March 28, 1989. Following a three-day trial, the jury 

returned a verdict in favor of defendants, finding that Sheriff 

Grainger justifiably terminated Smith under 5 7-32-2107, MCA. 

Whether the District Court erred in denying Smith's motion for 

summary judgment? 

Summary judgment is proper only if the moving party 

demonstrates the complete absence of material questions of fact and 

that he is entitled to judgment as a matter of law. Rule 56(c), 

M.R.Civ.P. In the present case, Smith, as the moving party, failed 

to shoulder his burden of proof. 

A tenured deputy sheriff may be relieved of his employment 

only for one or more statutorily enumerated causes. These causes 
are delineated in pertinent part in 5 7-32-2107, MCA, as follows: 

(1) conviction of a felony subsequent to the 

commencement of such employment; 

. . . 

(4) sleeping while on duty; 

(6) gross inefficiency in the performance of official 

duties. 

Smith maintains that the sole cause of his termination was 

conviction of a felony offense. Therefore, he argues, when he was 

acquitted by a jury on the criminal charges of mistreatment, the 

reason for his termination was no longer valid. Consequently, he 

was entitled to summary judgment. 

At the root of Smith's argument is a basic misunderstanding 

of the termination statute. Smith contends that a deputy sheriff 

may not be terminated for mistreating a prisoner unless he is 

convicted of a felony. This simply is not true. A deputy may also 

be terminated for gross inefficiency in the performance of official 

duties. A violation of official department policy may constitute 

gross inefficiency within the meaning of 5 7-32-2107, MCA. 

As pointed out in Smith's termination letter, the official 

policy of the Roosevelt County Sheriff's Department required 

deputies to obey all laws. A mere violation of the law constituted 

a violation of department policy, even if the violation did not 

result in a felony conviction. Therefore, Sheriff Grainger may 

have justifiably terminated Smith for gross inefficiency for 

mistreating a prisoner in his custody, a violation of both state 
law and department policy. 

Numerous questions of fact remained to be resolved by the 

jury. The jury needed to determine whether a preponderance of the 

evidence showed that Smith assaulted a prisoner in his care in 

violation of 45-5-204, MCA, mistreatment of prisoners, and 

whether such a violation of law constituted gross inefficiency. 

The District Court did not err in leaving these factual 

determinations to the jury. 

Whether Smith was denied a fair trial when the District Court 

denied his motion in limine and permitted testimony of other 

wrongdoings that were not the specific cause of his termination. 

Prior to trial, Smith made a motion in limine to excise 

paragraphs in the termination letter that referred to other alleged 

instances of misconduct, e.g., previous mistreatment of prisoners, 

failure to complete reports and sleeping while on duty. The 

District Court denied his motion. 

Smith contends that the court's denial of his motion was in 

error because these alleged wrongdoings were irrelevant and highly 

prejudicial and should therefore have been kept from the jury. 

Whether this is so we need not discuss as we note that it was Smith 

who introduced the letter in its entirety to the jury. Thus, any 

prejudice that may have been caused by the letter's introduction 

must be laid at the feet of Smith himself. He cannot now claim 

that he was denied a fair trial by the admission of evidence that 

he himself introduced. 
Smith also claims that he was denied a fair trial because the 

trial court permitted the jury to hear testimony concerning these 

other instances of misconduct. Once again, we note that this socalled highly prejudicial evidence was introduced by Smith in his 

case in chief. The transcripts demonstrate that Smith repeatedly 

solicited testimony from witnesses regarding those issues he now 

claims to be so prejudicial. We will not be misled by Smith's 

attempt to characterize his unsuccessful trial tactics as errors 

of the District Court. 

111. 

Whether substantial credible evidence supported the jury's 

finding that Sheriff Grainger justifiably terminated Smith. 

In the present case, two eye witnesses testified that, without 

apparent provocation, Smith grabbed the prisoner, Julian Deserly, 

by the hair, threw him down and slammed his face into the floor. 

Smith refuted this testimony, claimingthat he was merely following 

standard procedure for restraining a resisting prisoner. 

Even if the proof presented at trial conflicts, as it does in 

this case, this Court will not reweigh the evidence on appeal. It 

is uniquely within the province of the jury to determine the weight 

and credibility to be given each piece of proof. Weinberg v. 

Farmers State Bank of Worden (1988), 752 P.2d 719, 730, 45 St.Rep. 

391, 405. 

Viewed in the light most favorable to defendants, the evidence 

indicated that Smith mistreated Deserly. Therefore, we hold that 

substantial credible evidence supported the jury's finding that 
Smith was justifiably terminated from his position. 

IV. 

Whether the District Court erred in refusing to allow opinion 

testimony on the legal definition of gross inefficiency. 

At trial, Smith attempted to introduce the opinion testimony 

of former Roosevelt County Sheriff Dean Mahlum and former 

Undersheriff Robert J. Damm regarding the legal definition of gross 

inefficiency. The court sustained defendants' objection to this 

testimony. Smith argues that this was error. 

The District Court has broad discretion in determining the 

admissibility of evidence. We will not overturn its decision to 

refuse expert testimony absent an abuse of discretion. Massman v. 

City of Helena (1989), 773 P.2d 1206, 1210, 46 St.Rep. 764, 768. 

Expert testimony in the form of an opinion may be allowed if 

the specialized knowledge of the expert will assist the trier of 

fact to understand the evidence or determine a fact in issue. Rule 

702, M.R.Evid. Ordinarily, such testimony is allowed if the 

evidence or fact in issue is beyond the ken of the ordinary juror. 

Thus, we allow expert evidence regarding scientific or technical 

matters because such testimony is most generally needed to help 

jurors understand the evidence and determine the facts of the case. 

In the present case, even if we assume that the former sheriff 

and undersheriff were qualified as experts to give an opinion as 

to a legal definition, there was no need to allow such expert 

testimony. At the close of the presentation of evidence, the 

jurors were instructed on the definition of gross inefficiency. 
That instruction was not so highly technical as to be beyond the 

comprehension of the ordinary juror. Because expert opinion 

testimony was not needed to help the jurors understand the meaning 

of gross inefficiency, the District Court did not err in refusing 

such testimony. 

v. 

Whether the District Court erred in allowing an investigative 

report to be submitted to the jury. 

~uring his case in chief, smith encouraged Dennis Brockmeyer, 

the detective who investigated the assault upon Julian Deserly, to 

read statements from his interview with Deserly. At that point, 

defendants asked that the report be marked and given to the jury. 

Thereupon, the report itself was entered into evidence. Smith 

objected to the exhibit on the grounds that it would be improper 

to submit the report to the jury. 

As noted previously, the admissibility of evidence lies within 

the discretion of the trial court. Massman, 773 P.2d at 1210, 46 

St.Rep. at 768. The District Court in the present case did not 

abuse its discretion in allowing the submission of the 

investigative report to the jury. Smith had already entered the 

information into the record when he asked Brockmeyer to read from 

the report. He can hardly complain that submitting the actual 

exhibit to the jury substantially prejudiced his position. 

VI . 

Whether the District Court erred in instructing the jury on 

the definition of assault, battery and mistreatment of prisoners. 
At trial, the District Court instructed the jury as follows: 

Instruction No. 8: An assault is any intentional threat 

of harmful or offensive contact with another by force 

under circumstances which create a well-founded fear of 

such contact, coupled with the apparent present ability 

to carry out the threat. A battery is an intentional 

contact by one person with the person of another which 

is harmful or offensive. 

Instruction No. 9: An arresting officer may use such 

force as is reasonably necessary to effect a lawful 

arrest. However, a police officer who uses more force 

than is reasonably necessary to effect a lawful arrest 

commits a battery upon the person arrested as to such 

excessive force. 

Instruction No. 10: You are instructed that a person 

commits the offense of mistreating prisoners if, being 

responsible for the care or custody of a prisoner, he 

purposely or knowingly assaults or otherwise injures a 

prisoner. 

Smith acknowledges that these instructions are accurate 

statements of the law but he argues that they should not have been 

given because they misled and confused the jury. We do not agree. 

Smith was terminated for mistreating a prisoner when he 

allegedly assaulted Julian Deserly. Therefore, the jury had to 

determine whether a preponderance of the evidence proved that an 

assault actually occurred. Instruction No. 8 aided the jury in its 

deliberations by informing it of the definitions of assault and 

battery. Instruction No. 9 aided the jury by instructing it on 

the amount of force an officer may use in making an arrest without 

committing a battery. Instruction No. 10 aided the jury by 

defining mistreatment, precisely the reason for Smith's 

termination. 

These instructions were not misleading. On the contrary, they 

were needed to help the jury determine the ultimate fact in issue- 
-whether Smith was justifiably fired for mistreating a prisoner in 

his custody. 

VII. 

Whether the District Court erred in instructing the jury in 

accordance with Rule 404(b), M.R.Evid. 

During Smith's case in chief as well as after the presentation 

of evidence, the District Court instructed the jury that evidence 

of Smith's other wrongdoings was not admitted to prove Smith's 

character but only to show guilty knowledge of the offense for 

which Smith was terminated, to show malice, to rebut any claim of 

accident or mistake, to show motive and to show plan and intent. 

This instruction was in accordance with Rule 404 (b) , M. R. Evid. 

Smith argues that the instruction was confusing and irrelevant and 

only admissible in criminal cases. 

We need not discuss the merits, if any, of Smith's argument 

because, in perusing the record, we find a complete absence of any 

objection to the instruction. By failing to object to the 

instruction at the District Court level, Smith failed to preserve 

the issue for appeal. This Court will not review an issue raised 

for the first time on appeal. Weinberq, 752 P.2d at 724, 45 

Affirmed. 

/ 

Justice 

We Concur: