NO. 88-609 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsMICHAEL DUANE STILLINGS, 

Defendant and Appellant. 

-. 

APPEAL FROM: ~istrict Court of the Eighth ~udicial ist trick, ;-I 

%, 

In and for the County of Cascade, n - -i-f 

The Honorable Joel G. Roth, Judge presiding. - - 

COUNSEL OF RECORD: 

+. : 

For Appellant: . L.- ., 

,- i - ( - A- E. June Lord, Great Falls, Montana 

For Respondent: 

Hon. Marc ~acicot, Attorney General, Helena, Montana 

John Paulson, Asst. Atty. General, Helena 

Patrick Paul, County Attorney, Great Falls, Montana 

Steven Hudspeth, Deputy County Attorney, Great Falls, 

Montana 

Filed: 

Submitted on briefs: Aug. 3, 1989 

Decided: August 24, 1989 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Defendant Michael Duane Stillings appeals his conviction by 

the District Court of the Eighth Judicial District, Cascade County, 

for committing perjury by making two, inconsistent, material 

statements under oath in an official proceeding in violation of 

section 45-7-201(6), MCA (1987). We affirm. 

The defendant raises the following issues on appeal. Did the 

District Court err in denying the defendant's motion to dismiss the 

information when the District Court found that either: 

1) the defendant's act of perjury under section 45-7-201(6), 

MCA (1987), was not complete, and therefore the statute of 

limitations did not begin to run until the defendant made a 

material statement under oath that was inconsistent with this 

previous testimony; or, in the alternative 

2) under section 45-1-206 (I), MCA (1987), the defendant's outof-state incarceration tolled the statute of limitations on his 

first statement so that both statements fell within the five year 

statute of limitations? 

On the night of February 23, 1971, Vicki Renville was raped 

and bludgeoned to death in the Wadsworth Park area of Great Falls, 

Montana. During the resulting murder trial, Michael Stillings 

testified on October 4, 1971, that he and Fred Lee Perry raped 

Renville and that when she threatened to "rat," Perry repeatedly 

struck Renville on the head with a tire iron. Perry was subsequently convicted of second degree murder. See State v. Perry 

(1973), 161 Mont. 155, 505 P.2d 113 (affirming the District Court 

decision). Stillings pled guilty to the same charge and received 

a sixty-year sentence with ten years suspended. 

Stillings was incarcerated in the Montana State Prison on 

November 29, 1971. On December 6, 1971, he was transferred to the 

California prison system under the provisions of the Interstate 
Correctional Compact Agreement to prevent his confinement in the 

same prison as Perry. California paroled Stillings to Washington 

on August 18, 1978. On February 14, 1979, Stillings was arrested 

and subsequently convicted of armed robbery in Washington. After 

he served five years of his thirty-five year sentence, Washington 

paroled ~tillings to Montana on detainer on April 20, 1984. 

Montana revoked Stillingsl parole on his second degree murder 

charge returning him to the Montana State Prison. 

In 1986 the California prison system transferred Perry to Deer 

Lodge placing Stillings and Perry in the same prison for the first 

time. Stillings soon indicated that he would recant his previous 

testimony against Perry, and Perry applied for a new trial. During 

the new trial hearing on July 24, 1987, Stillings disavowed his 

1971 testimony against Perry and stated under oath that he, and not 

Perry, had killed Vicki Renville. The trial court, however, did 

not find Stillingsl testimony credible and refused to grant Perry 

a new trial. See State v. Perry (Mont. 1988), 758 P.2d 268, 45 

St.Rep. 1192 (affirming the District Court decision). 

On September 25, 1987, the Cascade County Attorney filed an 

information against Michael Stillings charging that Stillings 

committed perjury by making two, inconsistent, material statements 

under oath in violation of section 45-7-201, MCA (1987) . Stillings 

filed a motion to dismiss the information on the grounds that the 

statute of limitations had run. The District Court denied the 

motion. Defendant Stillings then filed an application for writ of 

supervisory control on the same grounds and the Montana Supreme 

Court denied the petition. In the ensuing bench trial, the 

District Court found the defendant guilty and sentenced him to ten 

years for perjury and ten years as a persistent felony offender. 

The District Court also revoked the ten-year suspended sentence on 

Stillings' second degree murder conviction and ordered that all 
sentences run consecutively. Defendant Stillings now appeals his 

perjury conviction. 

Did the District Court err in its alternative finding that the 

defendant's act of perjury under section 45-7-201(6), MCA (1987), 

was not complete, and therefore the statute of limitations did not 

begin to run until the defendant made a material statement under 

oath that was inconsistent with his previous testimony? 

Montana's perjury statute provides that: 

A person commits the offense of perjury if in 

any official proceeding he knowingly makes a 

false [material] statement under oath . . . . Section 45-7-201(1), MCA (1987). 

The statute further provides that: 

Where the defendant made inconsistent statements under oath or equivalent affirmation, 

both having been made within the period of the 

statute of limitations, the prosecution may 

proceed by setting forth the inconsistent 

statements in a single count alleging in the 

alternative that one or the other was false 

and not believed by the defendant. In such 

case it shall not be necessary for the prosecution to prove which statement was false but 

only that one or the other was false and not 

believed by the defendant to be true. 

Section 45-7-201(6) , MCA (1987) . The defense in this case argues that by the plain language of 

the inconsistent testimony provision, both statements must be made 

within the five year statute of limitations for felony crimes. 

Stillings contends that because seventeen years lapsed between his 

statements, the statute of limitations had run before the prosecution filed its information against him. We disagree. 

The statute of limitations did not run because the statute was 

triggered only by Stillings' second statement which completed the 
crime of perjury under section 45-7-2Ol(6), MCA (1987). The 

statute of limitations clearly states when the time limitation 

begins to run: 

A prosecution for a felony must be commenced 

within 5 years after it is committed. 

Section 45-1-205 (2) (a) , MCA (1987) . (Emphasis added. ) 

An offense is committed either when every 

element occurs or, when the offense is based 

upon a continuing course of conduct, at the 

time when the course of conduct is terminated. 

Time starts to run on the day after the offense is committed. 

Section 45-1-205(5), MCA (1987). 

Commission of the crime of perjury by making inconsistent, 

material statements under oath requires at a minimum that the 

accused has made two conflicting statements. When a witness makes 

conflicting statements under oath, it is axiomatic that one is 

false so long as all other elements of perjury can be satisfied. 

This statute expedites prosecution by eliminating the needless 

requirement of proving which statement is false. The intrinsic 

falsity of the accused's testimony arises, and the crime is 

complete, only when the inconsistent testimony occurs. The statute 

of limitations, therefore, cannot begin to run at least until the 

defendant has completed the crime by making the indispensable, 

second statement. 

The issue raised by the defendant accentuates an underlying 

contradiction in the inconsistent testimony statute. A crime under 

this statute cannot be completed, and the statute of limitations 

does not begin to run, until the defendant makes at least two 

allegedly inconsistent statements. However, the statute declares 

that "both [statements must be] made within the period of the 

statute of limitations.~~ Section 45-7-201(6) , MCA (1987) . BY 

including the first statement, which might be entirely true, within 
the period of limitations, this clause would trigger the statutory 

period before any crime has been committed. The statute entices 

the unscrupulous witness to falsely recant five-year-old, credible 

testimony and insulate himself against prosecution under this 

statute. We invite the legislature to consider an appropriate 

remedy to this problem. 

In the present case, application of this questionable statutory clause would still not have provided grounds for barring the 

prosecutionls information. 

Did the District Court err in its alternative finding that 

under section 45-1-206(1), MCA (1987), the defendant's out-of-state 

incarceration tolled the statute of limitations on his first 

statement so that both statements fell within the five year statute 

of limitations? 

Section 45-1-206, MCA (1987), provides that: 

The period of limitation does not run during: 

(1) any period in which the offender is not 

usually and publicly resident within this 

state or is beyond the jurisdiction of this 

state . . . . The defendant argues that during the time he was incarcerated 

in California on his second degree murder charge, he was still 

under Montana jurisdiction. While this contention may be true, we 

make no determination on this issue since it is not relevant. 

Section 45-1-206(1) is written in the disjunctive and either 

clause is sufficient in itself to toll the statute of limitation. 

Failure of the criminal defendant to be llusually and publicly 

resident within this statew will itself interrupt the running of 

the statutory - period regardless of jurisdiction. The statute is 

also tolled when the criminal defendant is "beyond the jurisdiction 

of the staten regardless of his place of residence. 
The Criminal Law Commission Comments on section 45-1-206 are 

also written in the disjunctive and note that: 

subsection (1) tolls the statute for the 

offender who is absent from this state, or 

absents himself from his usual place of abode 

and makes some effort to conceal himself. 

Again, each clause is sufficient to toll the statutory period. 

Absence from the accused's usual abode coupled with attempts at 

concealment will toll the statute. Absence from the state will, 

independently, interrupt the statutory period. We therefore hold 

that the mere absence of the criminal defendant from the state is 

sufficient to toll the statute of limitations. 

The majority of states interpreting similar statutes have also 

concluded that a criminal defendant's mere absence from the state 

is sufficient to toll the statute of limitations. See State v. 

Nelson (Ariz. App. 1988), 755 P.2d 1175; State v. Wright (Utah 

1987), 745 P.2d 447; State v. Houck (Kan. 1986), 727 P.2d 460; 

State v. Ansell (Wash. App. 1984), 675 P.2d 614; State v. Azzone 

(Minn. 1965), 135 N.W.2d 488; State v. Lupino (Minn. 1964), 129 

N.W.2d 294; Grayer v. State (Ark. 1962), 353 S.W.2d 148; Couture 

v. Commonwealth (Mass. 1958), 153 N.E.2d 625; Traxler v. State 

(Okla. Crim. App. 1953), 251 P.2d 815. 

A number of states have applied this principle to cases 

similar to that of Stillings. In the seminal case of People v. 

Carman (Ill. 1943), 52 N.E. 2d 197, the Illinois Supreme Court first 

interpreted the statutory exclusion for periods during which the 

defendant was "not usually and publicly resident within this 

state. The court defined "residentN by its common meaning and 

held that the statute of limitations was tolled during the Missouri 

incarceration of the defendant even though he remained a legal 

resident of Illinois. Carmen, 52 N.E.2d at 199-200. Similarly, 
Stillings' incarceration in Washington on armed robbery charges 

tolled the statute of limitations. 

The fact that Stillingsl whereabouts were known to Montana law 

enforcement officials throughout his absence does not change the 

rule. The Washington Court of Appeals held that the absence from 

the state of a first-degree statutory rape defendant was sufficient 

to toll the statute of limitations even though the defendant's 

whereabouts were easily determinable by law enforcement officials. 

State v. Ansell (Wash. App. 1984), 675 P.2d 614, 617. 

The ability of Montana to force the return of Stillings at any 

point during his time in California and Washington does not affect 

the tolling of the statutory period. The Washington courts held 

that the statute was tolled on a first-degree robbery defendant 

incarcerated in Oregon who was available for extradition under the 

Interstate Agreement on Detainers. State v. Newcomer (Wash. App. 

1987), 737 P.2d 1285, 1290. 

Similarly, Montana's maintenance of some control of Stillings 

during his California incarceration for his Montana murder conviction did not overcome the tolling of the statute. In an analogous 

case the Kansas Supreme Court held that a criminal defendant voluntarily paroled to Arkansas from the Kansas prison system and under 

the control of Kansas parole officials was not in the custody of 

the State of Kansas and therefore the statute tolled during his 

absence. State v. Houck (Kan. 1986), 727 P.2d 460, 465-66. 

In each of these cases, the principle is the same as that 

which we adopt today; mere absence from the state is sufficient to 

toll the statute of limitations for a criminal defendant. 

If the statute of limitations were applied to Stillings' first 

statement, it would have been triggered by his testimony on October 

4, 1971. The defendant left Montana for incarceration in ~alifornia on December 6, 1971, tolling the statutory period at two 
months. He returned to prison in Montana on April 20, 1984, 

restarting the statute of limitations which ran until the prosecution filed its information on September 24, 1987--a period of three 

years and five months. The statute of limitations, therefore, ran 

for three years and seven months and fell well within the five year 

statutory period. 

We find that the District Court was correct in both of its 

alternative holdings. Stillingsl mere absence from the state 

tolled the statute of limitations. Even if the statutory period 

had not been tolled, it could not have begun to run until Stillings 

made a material statement under oath that was inconsistent with his 

previous testimony. 

Affirmed . 

We concur: 

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Justices