No. 81-267 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

ELAINE GOLTZ , 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade 

Honorable Joel G. Roth, Judge presiding. 

Counsel of Record: 

For Appellant: 

Mark Bauer argued, Great Falls, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

Carroll Blend, Deputy County Attorney, argued, Great Falls, 

Montana 

Submitted: January 12, 1982 

Decided : mi * 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court. 

Defendant appeals from a conviction of felony theft 

following jury trial in the Eighth Judicial District Court, 

Cascade County. We affirm the District Court. 

Defendant presents the following issues for review: 

(1) Whether the District Court erred in denying defendznt's 

motion to dismiss based upon an eighteen month pre-indictment 

delay. 

(2) Whether the District Court erroneously allowed 

into evidence certain "uncorroborated admissions" by defendant. 

(3) Whether the District Court erroneously instructed 

the jury in such a way as to shift the burden of proof to 

defendant. 

(4) Whether the District Court erred in denying defendant's 

motion for a directed verdict of acquittal for failure of 

the State to prove its case beyond a reasonable doubt. 

Defendant managed the Don Plaza Motel in Great Falls 

from July 1978 through January 1979. She was paid $800.00 

per month or 16% of the take, whichever was more, and she 

had free use of an apartment in the motel. Early in her 

employment, her employer advanced defendant $3,200 so that 

she could pay certain pressing debts. Defendant's husband, 

a construction worker, was temporarily laid off in November. 

Defendant's daily duties included registering guests, 

preparing individual registration cards, and keeping a log 

of charges accrued, expenditures made and motel receipts 

(cash, checks, and credit card charge slips). Approximately 

once a week defendant transferred the daily records and 

receipts to the bookkeeper, a local high school student, who 

prepared bank deposit slips, deposited receipts in the Don 
Plaza bank account, and reconciled motel records and the 

motel bank account. The bookkeeper made seven deposits to 

the Don Plaza account in October. 

Defendant offered to and did take over the bookkeeping 

during the bookkeeper's vacation in November. Bank records 

show only one deposit in November, on the 13th, covering 

receipts up to November 6, 1978. The next deposit, covering 

receipts after November 27, 1978, was made by the regular 

bookkeeper on December 5, 1978. There are no deposits for 

the period from November 7 through November 26, although an 

audit of the motel's books revealed over $5,000 in receipts 

for that period. 

The discrepancy between motel receipts and bank deposits 

was not discovered until January, 1979, when the employers 

were notified that the Don Plaza bank account was overdrawn. 

An investigation revealed that defendant had filled out 

three bank deposit record slips, and turned them over to the 

bookkeeper, unaccompanied by bank receipts. She told the 

bookkeeper she had misplaced the bank receipts, but later 

admitted that she had never made the deposits, but had only 

prepared phony deposit slips. When defendant's employers 

confronted her in January about the overdraft, she told them 

she had deposited the money in her checking account. She 

wrote her employers two checks upon her account to cover the 

missing receipts; both checks were returned for insufficient 

funds . 

Defendant has consistently maintained that one of the 

bags containing receipts was taken from her office, and the 

network of lies was intended only to protect her job until 

she could obtain money from her father to cover the loss. 

Her father never covered the loss, and he did not testify at 

trial. 
In March of 1979, the County Attorney received the 

evidence upon which he based the subsequent prosecution. A 

delay of eighteen months followed, during which time the 

State was attempting to audit the motel books, track down 

travelers' checks, and investigate by mail. Defendant was 

charged with felony theft, by information on September 15, 

1980, and arrested on October 23, 1980. Defendant's motion 

to dismiss for delay in prosecution was denied, and trial 

commenced on January 23, 1981. From a jury verdict of 

guilty, defendant appeals to this Court. 

I. 

Defendant argues that she was denied her right to a 

speedy trial by the eighteen month pre-indictment delay. 

She relies upon Barker v. Wingo (1972), 407 U.S. 514, 92 

S.Ct. 2182, 33 L.Ed.2d 101, and its numerous progeny in 

Montana; State v. Larson (1981), Mont. , 623 P.2d 

954, 38 St.Rep. 213; State v. Cassidy (1978), 176 Mont. 385, 

578 P.2d 735; State v. Keller (1976), 170 Mont. 372, 553 

P.2d 1013, to name a few. Defendant also argues that prosecutorial 

delay may justify reversal on a due process basis, as having 

prejudiced defendant's right to a fair trial. She relies 

upon United States v. Marion (1971), 404 U.S. 307, 92 S.Ct. 

455, 30 L.Ed.2d 468; United States v. Lovasco (1977), 431 

U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752; and State v. Burtchett 

(1974), 165 Mont. 280, 530 P.2d 471. 

Defendant's reliance upon the line of speedy trial 

cases arising under the Sixth Amendment is misplaced. 

Marion and Lovasco both clearly indicate that speedy trial 

guarantees do not extend to the period prior to formal 

accusation or arrest. 
"In United States v. Marion, 404 U.S. 307, 92 

S.Ct. 455, 30 L.~dT2d 468 (1971). this Court 

considered the significance, for' constitutional purposes, of a lengthy preindictment delay. 

We held that as far as the Speedy Trial Clause 

of the Sixth Amendment is concerned, such delay is wholly irrelevant, since our analysis 

of the language, history, and purposes of the 

Clause persuaded us that only 'a formal indictment or information or else the actual restraints 

imposed by arrest and holding to answer a criminal charge . . . engage the particular protections' of that provision. Id., at 320, 92 S.Ct. 

at 463. We went on to notethat statutes of 

limitations, which provide predictable, legislatively enacted limits on prosecutorial delay, 

provide '"the primary guarantee, against bringing overly stale criminal charges."' Id, at 322, 

92 S.Ct. at 464, quoting United ~tatesv. Ewell, 

383 U.S. 116, 122, 86 S.Ct. 773, 777, 15 L.Ed. 

2d 627 (1966)." United States v. Lovasco, 431 

U.S. at 788-789, 97 S.Ct. at 2048, 52 L.Ed.2d 

at 758. 

Cf. United States v. Mills (9th Cir. 1981), 641 F.2d 785, 787; 

State v. Larson, Mont. at , 623 P.2d at 957- 

Both Marion and Lovasco, however, indicate that the 

statute of limitations is not a defendant's only protection 

against pre-indictment delay. 

". . .[T]he Due Process Clause has a limited 

role to play in protecting against oppressive 

delay." United States v. Lovasco, 431 U.S. 

at 789, 97 S.Ct. at 2048, 52 L.Ed.2d at 758. 

". . .[T]he Due Process Clause of the Fifth 

Amendment [and, here, the Fourteenth Amendment] would require dismissal of the indictment if it were shown at trial that the preindictment delay in this case caused substantial prejudice to [defendant's] rights to a 

fair trial and that the delay was an intentional device to gain tactical advantage 

over the accused." United States v. Marion, 

404 U.S. at 324, 92 S.Ct. at 465, 30 L.Ed.2d 

at 481. 

Cf. United States v. Cederquist (9th Cir. 1981), 641 F.2d 

1347, 1351; United States v. Mills, 641 F.2d at 788; United 

States v. Krasn (9th Cir. 1980), 614 F.2d 1229, 1235; United 

States v. West (9th Cir. 1979), 607 F.2d 300, 304-305. 
Those Ninth Circuit decisions addressing pre-indictment 

delay, subsequent to Marion and Lovasco, have established 

that the burden of proof is on the defendant and the prejudice 

alleged cannot be merely speculative. In West, the Ninth 

Circuit Court of ~ppeals stated: 

"The crucial element in the due process test 

established by Mays [United States v. Mays (9th 

Cir. 1977), 549 F.2d 6701 is the finding of 

actual prejudice to the defendants. Satisfaction of this element is a prerequisite to finding a due process violation. United States v. 

Titus, 576 F.2d 210, 211 (9th Cir. 1978) [cert. 

denied, 439 U.S. 860, 99 S.Ct. 180, 58 L.Ed.2d 

1691; Arnold v. McCarthy, 566 F.2d 1377, 1382 

(9th Cir. 1978). If the prejudice is allegedly 

due to the loss of a witness, the defendant 

'must show not only the loss of the witness 

and/or evidence but also [must] demonstrate 

how that loss is prejudicial to him.' United 

States v. - Mays, - supra at 677. Such proof must 

be definite and not speculative and '[tlhe 

assertion that a missing witness might have 

been useful does not show the "actual prejudice" required by Marion.' Id at 677 . . ." United States v. West, 6073.2d at 304. 

This Court addressed the matter of pre-indictment delay 

in State v. Burtchett, supra, and added a wrinkle to the 

standards established in Marion, and later in the federal 

courts. 

". . .[Tlhere is no question but that a delay 

in time between the commission of an offense 

and the commencement of the prosecution, by 

the filing of an information, termed 'preindictment delay' can be the denial of due 

process. [citing Marion.] Mere delay, in 

and of itself, is not sufficient. There must 

- be either actual prejudice -- to the conduct of 

the defens-that _______ the State intentional% 

delayed to gain some tactical advantage over -- 

appellant, -- or to harass him. United States v. 

Marion, supra." State v. Burtchett, 165 

Mont. at 283, 530 P.2d at 473. (Emphasis 

added. ) 

Defendant now argues that the "either/orU language in 

Burtchett clearly indicates that this Court intended that a 

due process violation could be found without defendant's 
having to prove both improper intent and actual prejudice. 

The State argues that the Burtchett language was a mere 

"lapsus linguae," and this Court should now rule that both 

improper intent and actual prejudice must be found. 

We find that defendant neither asserted and proved the 

State's improper intent nor proved actual prejudice resulting 

from the delay; therefore, the difference between the Burtchett 

standard and the Marion standard is not determinative here. 

Defendant claims that because of the pre-indictment 

delay, she lost the testimony of one "key witness for the 

defense" and a number of unnamed Don Plaza employees who 

might have indicated the guilt of someone other than defendant. 

Defendant has failed to indicate the nature of the lost 

testimony and how it might be exculpatory. Such speculation 

is insufficient to establish actual prejudice. See United 

States v. West, 607 F.2d at 304-305; United States v. Mays, 

549 F.2d at 677. Defendant claims the record shows that 

witnesses for the State were unable to remember certain 

details such as the exact dates of vacations or which employer 

confronted the defendant first. Defendant, again, has made 

no effort to show how those particular memory lapses impaired 

her defense. Indeed, the facts themselves were not disputed. 

Defendant never claimed that she - had deposited the motel 

receipts or that she did not make out phony bank receipts, 

that she did not falsely tell her employers she had deposited 

the receipts in her own account, or that she had not written 

bad checks to "repay" her employers. Defendant erroneously 

concludes that proof of some failure of memory is automatically 

proof of prejudice. In United States v. Mills, 641 F.2d at 

789, the Ninth Circuit Court of Appeals stated: 
"Nor does the claim that the witnesses1 

memories have dimmed without proof of 

impairment constitute actual prejudice. 

United States v. Rogers, 639 F.2d 438 

(8th Cir. 19817; Mays, supra." 

There is no evidence that defendant's position was in 

any way impaired by failure of the State's witnesses to 

recall certain details. 

Defendant mentions only one specific instance of her 

own memory failure from which some prejudice may flow. She 

claimed, during cross-examination, that she had never been 

paid more than $800.00 per month at the Don Plaza. The 

State produced a cancelled check to defendant for over 

$900.00. Defendant claims she forgot that paycheck in the 

two years between the offense and trial, and that being 

contradicted before the jury severely damaged her credibility. 

We do not find this single instance sufficient to mandate 

reversal of conviction. The contradiction was on a minor 

point not directly related to those actions of defendant 

which led to her conviction. 

Finally, in United States v. Lovasco, 431 U.S. at 795- 

796, 97 S.Ct. at 2051, 52 L.Ed.2d at 762-763, the United 

States Supreme Court stated: 

"In our view, investigative delay is fundamentally unlike delay undertaken by the Government solely 'to gain tactical advantage 

over the accused,' United States v. Marion, 

404 U.S., at 324, 92 S.Ct., at 465, precisely because investigative delay is not so onesided. Rather than deviating from elementary 

standards of 'fair play and decency,' a prosecutor abides by them if he refuses to seek 

indictments until he is completely satisfied 

that he should prosecute and will be able 

promptly to establish guilt beyond a reasonable doubt. Penalizing prosecutors who defer 

action for these reasons would subordinate 

the goal of 'orderly expedition' to that of 

'mere speed,' Smith v. United States, 360 

U.S. 1, 10, 79 S.Ct.-991, 997, 3 L.Ed.2d 

1041 (1959). This the Due Process Clause 

does not require. We - therefore --- hold that to 
prosecute a defendant following investigative 

2-- dela does-not deprive --- him of due process, 

--- even if his defense might have --- been somewhat 

prejudiced -- by the lapse of -- time." (Emphasis 

added. ) 

There is ample evidence that the delay in this case resulted 

from continuing investigation by the State, e.g., its attempt 

to track down credit card charge slips and travelers checks. 

There was no error in the District Court's denial of defendant's 

motion to dismiss due to delay. 

Defendant maintains that the District Court erred by 

allowing into evidence her employersf testimony that defendant 

had falsely assured them the money had been deposited for 

them into defendant's personal checking account. Defendant 

concedes she has no hearsay objection, but argues that the 

statements to her employers were inadmissible because they 

were "uncorroborated admissions" and could never be corroborated 

because they were untrue. 

We do not accept defendant's rather ingenious argument, 

for the simple reason that her statements were not admissions. 

They were "false exculpatory statements," which are admissible. 

"False exculpatory statements by a party may 

be used not only to impeach, but also to prove 

consciousness of guilt and unlawful intent. 

Williamson v. United States, 310 F.2d 192, 199 

(9th Cir. 1962). - See DeVore v. United States, 

368 F.2d 396, 397 (9th Cir. 1966); 2 Wigmore 

on Evidence S278 (2) (3rd ed. 1940) [supp. 

19811." United States v. Pistante (9th Cir. 

1971), 453 F. 2d 412, 413. 

Cf. Burden Young v. United States (9th Cir. 1966), 358 F.2d 

429, 431, wherein the Circuit Court of Appeals held, that 

admission into evidence of false exculpatory statements made 

by defendant to an F.B.I. agent was not error "whatever 

ground may have been relied on by the court." 
An "admission" is defined as "an avowal or acknowledgement 

of a fact or of circumstances from which, together with 

other facts, guilt may be inferred." 22 C.J.S. Criminal Law 

§730(a). Ordinarily it is not the fact of the avowal but 

its substance, i.e., that some act was in fact done, which 

allows an inference of guilt. Here, it is not the substance 

of the avowal, but the fact that the avowal was false that 

allows an inference of guilt. 

We hold that the statements in question were not admissions, 

but false exculpatory statements, and, as such, were properly 

admitted by the trial court. 

Defendant argues that the trial court erred in its 

instructions to the jury. The trial court instructed the 

jury that: 

"Purpose or knowledge are manifested by the 

circumstances connected with the offense. 

Purpose or knowledge need not be proved by 

direct evidence, but may be inferred from 

acts, conduct and circumstances appearing 

in evidence." (Other instructions indicated that an omission could constitute an 

act.) 

Defendant objected to the instruction as being "very close 

to a Sandstrom type of instruction." (Sandstrom v. Montana 

(1979), 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39.) The 

trial court refused defendant's proposed instruction that it 

is not the act alone, but the criminal intention together 

with the act, that makes the actor guilty. Defendant did 

not offer an instruction defining "inference," nor did she 

suggest that such an instruction be given. Defendant now 

argues that, without such an instruction, the effect of the 

instructions, taken as a whole, was to "shift the burden to 

the defendant to show that her failure to deposit the funds 
of the Don Plaza Motel was not coupled with the purpose to 

deprive the owners of those funds." Such a shift of burden 

runs afoul of Sandstrom, according to defendant. 

We disagree. In the first place, defendant cannot on 

appeal hold the State or the trial court responsible for 

their failure to include an instruction defining "inference," 

when she herself did not offer or request such an instruction. 

". . . [I]£ defendant felt further instructions, including more specific instructions 

were necessary, it was incumbent upon him 

to request more specific instructions. No 

such request appears in the record." State 

v. Bretz (1979), Mont . , 605 P. 2d 

974, 998, 36 St.Rep. 1037, 1067, cert. 

denied, 444 U.S. 994, 100 S.Ct. 529, 62 L.Ed. 

2d 425. 

Furthermore, the jury was adequately instructed that the 

State must prove each element of the offense charged. The 

instructions separated the several elements of the offense 

and clearly indicated that the State must prove "beyond a 

reasonable doubt to a moral certainty" that (1) defendant's 

purpose was to deprive the owners of their property, and (2) 

defendant purposely or knowingly obtained or exerted unauthorized 

control over the cash, checks and credit card charge slips. 

Finally, since the Sandstrom decision was reversed in the 

United States Supreme Court in 1979, this Court has been 

inundated by appeals attempting to equate "must presume" 

with "may infer," and thus bring the instructions on permissive 

inference as to intent within the Sandstrom ban. We have 

indicated that no such equation will be accepted. In State 

v. Bad Horse (1980), Mont. , 605 P.2d 1113, 1120, 

37 St.Rep. 45, 54, this Court cited State v. Coleman (on 

rehearing) (1979), Mont. , 605 P.2d 1000, 1054, 36 

St.Rep. 2237, 2241: 
"The holding in Sandstrom is not to be construed to mean that whenever a trial court instructs 

the jury that it may resort to inference to 

determine subjective matters such as knowledge 

or purpose, that thereby the State has been 

relieved of its burden of proof. The United 

States Supreme Court did not intend such limitation, and we do not find any such intention 

in the language of Sandstrom or its related 

cases. The jury was not allowed to rest solely 

upon the permitted inference in the Coleman 

case, but under the instruction had to require 

such an inference to meet the standard as-beyond a reasonable doubt." 

The disputed instruction here was not mandatory; the 

instructions as a whole adequately informed the jury. We 

find no shift of the burden of proof to the defendant. No 

error. 

IV. 

The fourth and final allegation of error raised by 

defendant is that the trial court improperly denied her 

motion for a directed verdict of acquittal. Defendant 

argues that the State failed to eliminate the "reasonable 

possibility" that someone else stole the receipts, and also 

failed to prove that defendant exerted unauthorized control 

over the receipts; therefore, no reasonable juror could find 

all elements of the crime were proven beyond a reasonable 

doubt. 

This Court addressed the question of a directed verdict 

of acquittal in State v. Smith (1980), Mont. , 609 

"Section 46-16-403, MCA provides: 

"'When, at the close of the State's evidence 

or at the close of all the evidence, the evidence is insufficient to support a finding or 

verdict of guilty, the court may, on its own 

motion or on the motion of the defendant, 

dismiss the action and discharge the defendant . . . ' 

"The general rule in Montana appears to be 

that a directed verdict of acquittal is appropriate in criminal cases 'only where the 
State fails to prove its case and there is 

no evidence upon which a jury could base 

its verdict. ' State v. Yoss (1965), 146 

Mont. 508, 409 P.2d 452, 455. 'The decision 

whether to dismiss the charge or direct a 

verdict of acquittal lies within the sound 

discretion of the trial court and will be 

disturbed on appeal only when abuse is 

shown. State v. Just (1979), Mont., 602 

P.2d 957, 965, 36 St.Rep. 1649." 

And in State v. Pendergrass (1980)~ Mont. , 615 

P.2d 201, 205, 37 St.Rep. 1370, 1375, we stated: 

". . . This Court remains ever mindful of 

one fundamental rule -- that questions of 

fact must be determined solely by the jury, 

and that given a certain legal minimum of 

evidence, this Court on review will not 

substitute its judgment for that of the 

jury. . . State v. Merseal (1975), 167 Mont. 

412, 415, 538 P.2d 1366, 1367-1368." 

Pendergrass and Merseal also indicate that the test of 

evidence sufficient to warrant a directed verdict of acquittal 

is the same as the test of sufficiency of evidence on appeal, 

i.e., whether, viewing the evidence in the light most favorable 

to the State, substantial evidence exists to support a 

verdict of guilty. The State presented evidence showing 

that defendant handled both the motel receipts and the bank 

records during the period for which receipts are missing; 

that she prepared phony bank deposit records, and built a 

framework of easily-discovered lies around her failure to 

deposit the receipts; that she had a history of indebtedness; 

that her husband was unemployed in November of 1978. Both 

motive and opportunity were established by the evidence; 

together with the evidence of defendant's evasive behavior, 

there was more than adequate support for a guilty verdict. 

Af f irmed. 

Justice