No. 81-267 INTHE SUPREME COURT OF THE STATE OF MONTANA 1982

THE STATE OF MONTANA, Plaintiff and Respondent,

VS

# . ELAINE GOLTZ

## , Defendant and Appellant.

Appeal from: DistrictCourt 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 CarrollBlend, Deputy County Attorney, argued, Great Falls,

Montana

Submitted: January 12, 1982 Decided: 

# mi

# *Mr. Justice Fred J. Weber delivered the Opinion of the Court.

Defendantappeals 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. Defendantmanaged 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 themotel. Early in her employment, her employer advanced defendant $3,200 so that she could pay certain pressing debts. Defendant's husband,

a constructionworker, 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 DonPlaza bank account, and reconciled motel records and the motel bank account. The bookkeeper made seven deposits to the Don Plaza account in October. Defendantoffered 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 receiptsup 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 thatperiod. 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 defendanthad filled out three bank deposit record slips, and turned them over to the bookkeeper,unaccompanied by bank receipts. She told the bookkeeper shehad misplaced the bank receipts,but later admitted that shehad 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 shehad deposited themoney 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

# . Defendanthas consistently maintained that one of the bags containing receipts was taken from her office, and the network of lieswas intended only to protect her job until she could obtain money fromher 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 subsequentprosecution. 

### A delay of eighteenmonths followed,during which time the State was attempting to audit the motel books, track down travelers' checks, and investigate by mail. Defendantwas charged with felony theft, by informationon 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. Defendantargues that she was denied her right to a speedy trial by the eighteen month pre-indictmentdelay. 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; Statev. Cassidy (1978),176 Mont. 385, 578 P.2d 735; State

### v. Keller (1976),170Mont. 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 Statesv. 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), 165Mont. 280, 530 P.2d 471. Defendant's reliance upon the line of speedy trial

cases arising under the SixthAmendment ismisplaced. Marion and Lovasco both clearly indicate that speedy trial guarantees do not extend to the period prior to formal accusation or arrest."InUnited States

### v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.~dT2d468 (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 SixthAmendment 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 onprosecutorial delay, provide '"theprimary guarantee, againstbringing 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, 15L.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 (9thCir. 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 Statesv. Lovasco, 431U.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 requiredismissal of the indictment if itwere 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, 92S.Ct. at 465, 30 L.Ed.2d at 481. Cf. United States v. Cederquist (9thCir. 1981), 641 F.2d 1347, 1351;United States v. Mills, 641 F.2d at 788;United States

### v. Krasn (9thCir. 1980), 614 F.2d 1229, 1235; United Statesv. West (9thCir. 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 Statesv. 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 (9thCir. 1978) [cert. denied, 439 U.S. 860, 99 S.Ct. 180, 58 L.Ed.2d 1691;Arnold v. McCarthy, 566 F.2d 1377, 1382 (9thCir. 1978). If the prejudice is allegedly due to the loss of a witness, the defendant

'mustshownot only the loss of the witness and/or evidence but also [must]demonstrate how that loss is prejudicial to him.' United Statesv. 

### - Mays, 

### - supra at 677. Suchproof must be definite and not speculativeand '[tlhe assertion that a missing witness might have been useful does not show the "actualprejudice" required by Marion.' Id at 677 

# .

# . ." United Statesv. West, 6073.2d at 304. This Court addressed the matter of pre-indictment delay in Statev. 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 'preindictmentdelay' can be the denial of due process. [citingMarion.] Mere delay, in and of itself, is not sufficient. There must be either actualprejudice to the conduct of - 

## -- the defens-that

_______ the State intentional% delayed to gain some tactical advantage over -- appellant,

### -- or to harass him. United Statesv. Marion, supra." Statev. 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'shaving 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. Defendanthas failed to indicate the nature of the lost testimony and how itmight be exculpatory. Such speculation is insufficient to establish actualprejudice. See United Statesv. West, 607F.2d at 304-305; United Statesv. 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 showhow those particular memory lapses impaired her defense. Indeed, the facts themselves were not disputed. Defendant never claimed that she - had deposited themotel receipts or that she did notmake 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 notwritten bad checks to "repay"her employers. Defendant erroneously concludes that proof of some failure of memory is automatically proof of prejudice. In United Statesv. 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

(8thCir. 19817;Mays, supra." There is no evidence that defendant's position was in any way impaired by failureof the State's witnesses to recall certain details. Defendantmentions only one specific instance of her

ownmemory failure fromwhich someprejudice 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 thatpaycheck 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 tomandate 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, 431U.S. at 795- 796, 97 S.Ct. at 2051, 52 L.Ed.2d at 762-763, the United States SupremeCourt stated: "Inour view, investigative delay is fundamentally unlike delay undertaken by the Government solely 'togain tactical advantage over the accused,' United States

### v. Marion, 404U.S., at 324, 92 S.Ct., at 465,precisely because investigativedelay is not so onesided. Rather than deviating from elementary standards of 'fairplay and decency,' a prosecutor abides by them if he refuses to seek indictmentsuntil he is completely satisfied thathe 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 'orderlyexpedition' to that of

'merespeed,' 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 toprosecute a defendant following investigative dela does-not deprive him of due process, 

### 2-- --- 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 investigationby the State, e.g., its attempt to track down credit card charge slips and travelers checks. There was no error in the DistrictCourt's denial of defendant's motion to dismiss due to delay.

Defendantmaintains that the DistrictCourt erred by allowing into evidence her employersftestimony that defendant had falsely assured them themoney 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 statementswere not admissions. They were "falseexculpatory statements,"which are admissible. "Falseexculpatory 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

(9thCir. 1962). 

### - See DeVorev. United States, 368 F.2d 396, 397 (9thCir. 1966); 2Wigmore on Evidence S278 (2) (3rded. 1940) [supp. 19811." United States

### v. Pistante (9thCir. 1971), 453 F.2d 412, 413. Cf. Burden Young v. United States (9thCir. 1966), 358 F.2d 429, 431,wherein the Circuit Court of Appeals held, that admission into evidence of false exculpatory statementsmade by defendant to an F.B.I. agentwas not error "whatever groundmay have been relied on by the court."An "admission" is defined as "anavowal or acknowledgement of a fact or of circumstances fromwhich, togetherwith other facts,guiltmay 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 factdone,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:"Purposeor knowledge aremanifested by the circumstances connected with the offense. Purpose or knowledgeneed 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 constitutean act.) Defendant objected to the instruction as being "very close to a Sandstrom type of instruction." (Sandstromv. Montana

(1979), 442U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39.) The trial court refused defendant'sproposed instruction that it is not the act alone,but the criminal intention together with the act, that makes the actor guilty. Defendantdid not offer an instruction defining "inference,"nor did she suggest that such an instructionbe given. Defendant now argues that,without such an instruction,the effect of the instructions, taken as a whole, was to "shiftthe burden to the defendant to show that her failure to deposit the fundsof the Don PlazaMotel was not coupledwith 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, includingmore specific instructions were necessary, itwas 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 Statemust 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) defendantpurposely 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 "mustpresume" with "may infer," and thus bring the instructions on permissive inference as to intentwithin 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. 

### , 605P.2d 1000, 1054, 36 St.Rep. 2237, 2241:"Theholding in Sandstrom is not to be construed to mean thatwhenever a trial court instructs the jury that itmay resort to inference to determine subjectivematters 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 instructionhad to require such an inference to meet the standard as-beyond a reasonabledoubt." The disputed instructionhere was notmandatory; 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 thatdefendant exerted unauthorized control

over the receipts; therefore,no reasonable juror could find all elements of the crimewere proven beyond a reasonable doubt. This Court addressed the question of a directed verdict of acquittal in Statev. 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 courtmay, on its own motion or on the motion of the defendant, dismiss the action and discharge the defendant

# . .

# .' "Thegeneral rule in Montana appears to be that a directed verdict of acquittal is appropriate in criminal cases 'onlywhere theState fails to prove its case and there is no evidence upon which a jury could base its verdict.

### ' Statev. Yoss (1965), 146 Mont. 508, 409 P.2d 452, 455. 'Thedecision whether to dismiss the charge or direct a verdict of acquittal lieswithin the sound discretion of the trial court and will be disturbed on appeal only when abuse is shown. Statev. Just (1979),Mont., 602 P.2d 957, 965, 36 St.Rep. 1649." And in Statev. 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 factmust be determined solelyby the jury, and that given a certain legal minimum of evidence, this Court on reviewwill not substitute its judgment for that of the jury. 

# .

# . State

### v. Merseal (1975), 167Mont. 412, 415, 538 P.2d 1366, 1367-1368." Pendergrassand Merseal also indicate that the test of evidence sufficient to warrant a directed verdict of acquittal is the same as the test of sufficiencyof evidence on appeal, i.e., whether,viewing the evidence in the lightmost favorable to the State, substantial evidence exists to support a verdict of guilty. The Statepresented evidence showing that defendanthandled both the motel receipts and the bank records during the period for which receipts aremissing; that sheprepared 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 opportunitywere established by the evidence; together with the evidence of defendant's evasive behavior, therewas more than adequate support for a guilty verdict. Affirmed.

Justice