No. 83-329 

IN THE SUPREME COURT OF THE STATE OF MOWTAXA 

1984 

STATE OF MONTAPJA, 

Plaintiff and Respondent, 

DOIJALD F. LLOYD, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Allen Beck, Billings, Montana 

For Respondent: 

Mike Greely , Attorney General, ISelena, Montana 

Harold F. Hanser, County Attorney, Billings, 

Montana 

Submitted on Briefs: December 15, 1983 

Decided: February 16, 1984 

Filed: ,- t. H ! ' !38+ 

pClerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of the 

Court. 

Defendant Donald Lloyd, appeals his conviction and 

sentence for felonious issuing of bad checks from the 

Thirteenth Judicial District Court, Yellowstone County. We 

affirm. 

On December 18, 1981, defendant purchased three cars 

from Billings Auto Auction, and signed three checks drawn on 

defendant's Spokane bank in payment. The checks were made 

out in the amounts of $3,200, $1,765 and $1,365. The 

defendant testified that he paid for the three cars with 

cash, but left four signed blank checks with the company in 

payment for other bills. In contrast, the president of 

Billings Auto Auction, Dinkel, testified that his secretary 

filled out three checks and defendant signed the checks in 

Dinkel's presence. All three checks were returned unpaid. 

Defendant testified that Dinkel knew at the time of signing 

that the checks were not to be sent to deposit until the next 

week. 

On January 12, 1982, Dinkel notified defendant by 

certified mail that the checks were returned by the bank. 

Defendant signed the return receipt, but did not respond to 

the letter nor pay the checks. In February, defendant 

contacted his attorney in Spokane for advice, and was advised 

not to pay the checks because of a defect in one of the cars. 

Defendant's attorney believed a set off existed under the 

Uniform Commercial Code. 

An information was filed March 23, 1982, charging 

defendant with the felony of issuing a bad check. Jury trial 

was held on December 14, 1982, and defendant was found 

guilty. 

During the trial, counsel for the State objected to 

questions asked of defendant's Spokane attorney. The 
questions were designed to demonstrate that defendant did not 

pay the checks because one of the cars he bought was 

defective, not because of a criminal mental state. The 

following transpired in the presence of the jury: 

"MR. HOEFER: Your Honor, again I would object to 

this line of questioning. The conclusions are 

based on what may amount to self serving interest 

of the Defendant, and consequently he is acting as 

a trier of fact here which is the jury's province. 

"MR. BECK: May I respond, your Honor? 

"THE COURT: I don't understand your objection. 

You've got to -- can you state what it is again? 

"MR. HOEFER: Your Honor, the basic objection is 

that his contact with his attorney and the 

recommendations of his attorney are not pertinent 

to the case. They are not part of the res gestae, 

and consequently they are -- 

"THE COURT: Well, they are hearsay, but -- 

"THE COURT: There is a presumption created which 

the statute and -- but I don't know why you 

couldn't rebutt [sic] it, but -- 

"MR. BECK: I would submit, your Honor, that it 

would be rebutted by what he did, and what he did 

is relevant to that issue, and that's the sole 

purpose for what this evidence is submitted. 

"THE COURT: Well, I'm going to overrule the 

objection to that extent; however, obviously it is 

self serving. There is no question about it. 

"MR. BECK: It's being offered, your Honor, for 

that limited purpose, that is, what did he do. 

"THE COURT: Well, anyhow, go ahead and ask your 

question. 

"MR. BECK: Thank you, your Honor." 

Defendant contends the statement of the court that the 

testimony is self-serving was prejudicial comment upon the 

evidence. The defendant also assigned error to the court 

asking the witness, "do you practice criminal law?" 

Five letters of recommendation were submitted to the 

trial court and the adult probation officer in charge of the 
presentence investigation. On February 2, 1983, defendant 

was sentenced to five years in prison. 

Two issues are raised on appeal. First, whether the 

trial court's statements and questions were comments on the 

evidence amounting to reversible error. Second, whether the 

trial court abused its discretion in sentencing the 

defendant. 

Defendant argues that statements such as those of the 

trial court are proscribed by Rule 614 (b) M.R.Evid. We need 

not consider the error as defendant did not object at trial. 

State v. Bier (1979), 181 Mont. 27, 34, 591 P.2d 1115, 1119; 

State v. Jensen (1969), 153 Mont. 233, 236, 455 P.2d 631, 

632-33. 

Furthermore, we refuse to invoke the plain error 

doctrine. Any prejudice generated by the statements of the 

court would be too slight to be reversible error. Indeed, 

under these circumstances, any technical error would be 

rendered harmless by the court's instruction to disregard 

comments of the court. State v. Inich (1918), 55 Mont. 1, 

173 P.230. 

It is clear that the statement of the court regarding 

the self-serving nature of testimony was part of the court's 

ruling on the evidentiary objection. It was not directed at 

the jury. In ruling on such objections the trial judge may 

be unable to avoid expressing some opinion regarding the 

value or weight of evidence. State v. Dixson (1927), 80 

Mont. 181, 212, 260 P.138, 149. 

The question regarding the lawyer's area of practice is 

not prejudicial. In fact the question would have 

appropriately been asked by counsel. 

Defendant next contends that the sentencing judge failed 

to evaluate all available sentencing information before 
sentencing. Specifically, defendant claims the court gave no 

weight to the unrebutted statements of several Spokane 

residents. 

We will not review a sentence on appeal for mere 

inequity or disparity. Such a review is to be conducted by 

the Sentence Review Division. State ex rel. Greely v. 

District Court (1979), 180 Mont. 317, 327, 390 P.2d 1104, 

1110. Rather, this Court will only review sentences for 

their legality. The standard for such review is whether the 

court abused its discretion in the sentencing process. State 

v. White (Mont. 1982), 39 St.Rep. 1619, 650 P.2d 765. 

Whatever weight the court afforded the statements of the 

Spokane residents, it is clear he felt these recommendations 

were outweighed by the defendant's present conduct, found by 

the jury to be felonious, and his past record, including 

grand larceny by check at the age of 34. 

The sentence to be imposed is properly vested in the 

sound discretion of the court. We find no abuse of this 

discretion. 

The judgment of the District Court is affirmed. 

We concur: 

Chief Justicg - 

& 

Justices 

Mr. Justice Daniel J. Shea will file a special concurring 

opinion later.