NO. 81-411 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1982 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS. 

JESSE D. STEPHENS, 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Missoula 

Honorable Douglas Harkin, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hirst, Dostal & Withrow, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Robert L. Deschamps 111, County Attorney, Missoula, 

Montana 

Submitted on briefs: March 5, 1982 

Decided : 

yr - ., 3 1982 Filed: iklpnl 
Mr. Justice Fred J. Weber delivered the Opinion of the 

Court. 

Defendant Jesse D. Stephans (Stephans) appeals from a 

conviction of robbery following a trial before a jury in the 

Fourth Judicial District, Missoula County. He presents the 

following issues for review: 

(1) Whether the testimony of Forrest Bex (Bex) should 

have been allowed in evidence over the objection as to his 

competency as a witness. 

(2) Whether the sentence imposed, which is twice as 

long as that recommended by the presentence report, is 

valid. 

We affirm. 

On the evening of February 2, 1980, Carla E. Rasmussen 

(Rasmussen) was the only clerk in a Circle K store in East 

Missoula, Montana. About 9:45 P.M. two men came into the 

store -- one red-head and the other partially bald. They 

bought a dollar's worth of gas and a cold pack of beer, then 

left. A few minutes later the partially bald man returned. 

His hand was in his pocket pointed like a gun and he asked 

for her money. Rasmussen believed that he had a gun and was 

very frightened. She placed the bills from both tills into 

a bag and gave the bag to the man. He then made her lie 

down flat on the floor. 

After a few minutes, Rasmussen called the police and 

gave them a statement, including a description of the men. 

From a photograph lineup, she picked out Bex as the redhead and Stephans as the partially bald man. 

I. 

Whether the testimony of Bex should have been allowed 

in evidence over the objection as to his competency as a 

witness. 
During the trial the prosecution called Bex to testify. 

The defense attorney requested an examination of the witness 

regarding his competency to testify. An in camera examination 

was held where both attorneys questioned Bex in the presence 

of the judge. During the examination, it was revealed that 

in 1974 Bex had been charged with arson which resulted in 

his being evaluated at Warm Springs State Hospital. Bex did 

not stand trial as the District Court found him unfit at 

that time to proceed because he was unable to assist in his 

own defense and to understand the proceedings against him. 

The judge in the present case had before him the 1976 

evaluations which provided, in part: 

"2. The following diagnoses were given to 

him: 

"A. Adjustment reaction of adolescence 

"B. Inadequate personality 

"C. Episodic excessive drinking 

"D. Borderline mental retardation 

"E. Non-psychotic OBS with other physical 

condition [organic brain syndrome] 

"3. The medical staff of the hospital found 

that Mr. Bex is suffering from a mental disease 

or defect and in our opinion, his capacity to 

understand the proceedings against him and to 

assist in his own defense is impaired. 

"4. It is also the opinion of the medical 

staff of the hospital that Mr. Bex's ability 

to appreciate the criminality of his conduct 

or to conform his conduct to the requirements 

of the law at the time of the criminal conduct 

charged was impaired." 

The Warm Springs State Hospital evaluations went on to 

conclude: 

"Mr. Bex seems ready to be returned to your 

custody for disposition and we recommend that 

he have some amount of supervision, and followup psychiatric care, if allowed to live in the 

community again. He seems very much improved; 

has accepted rules and regulations well, without difficulties." 
During the in camera examination held in the present case, 

Bex testified as to his past and to his ability and intention 

to tell the truth. At the end of the examination, the judge 

found that the witness was "capable of expressing himself 

concerning the matter so as to be understood by the judge 

and jury" and that he was "capable of understanding the duty 

of the witness to tell the truth under Rule 601." When the 

trial resumed, the judge instructed the jury, prior to the 

direct examination of Bex, as follows: 

"The law requires that I determine whether or 

not a witness is capable of expressing himself 

so as to be understood by the judge and the 

jury. I have determined that this witness is 

capable of expressing himself in such a manner. 

"It also requires that I determine whether or 

not he is capable of understanding his duty 

as a witness to tell the truth. I find that he 

is capable of making that understanding. 

"The weight to be given his testimony is solely 

within the discretion of the jury." 

Bex then testified before the jury. 

The Montana Rules of Evidence, Rule 601, states: 

"(a) General rule competency. Every person 

is competent to be a witness except as otherwise provided in these rules. 

"(b) Disqualification of witnesses. A person 

is disqualified to be a witness if the court 

finds that (1) the witness is incapable of 

expressing himself concerning the matter so 

as to be understood by the judge and jury 

either directly or through interpretation by 

one who can understand him or (2) the witness 

is incapable of understanding the duty of a 

witness to tell the truth." 

The rules of evidence were enacted on July 1, 1977. 

Prior to that the Montana statute provided that those of 

unsound mind could not be witnesses. Section 93-701-3(1), 

R.C.M. 1947. Even with that statute this Court held that 

"there is no presumption that a witness is incompetent and 

the burden is on the party asserting incompetency to prove 
it." State v. Coleman (1978), 177 Mont. 1, 27, 579 P.2d 

732, 748. The enacting of the rules in 1977 did not create 

any presumptions. The defendant is required to prove incompetency 

and it is the function of the trial judge to determine the 

competency of the witness to testify. Coleman, 177 Mont. at 

27, 579 P.2d at 748. The Defendant did not submit any 

additional evidence of incompetency beyond the 1975 and 1976 

Warm Springs State Hospital evaluations. While these 

reports show 1976 diagnoses of mental disorders, the reports 

also indicate that he was very much improved. In and of 

themselves, these reports are not sufficient to require a 

conclusion that the witness was incompetent, incapable of 

expressing himself concerning the matter, or incapable of 

understanding the duty to tell the truth. After considering 

such reports and after watching Bex answer questions, the 

District Court concluded that Bex was capable of expressing 

himself in a manner so as to be understood and was capable 

of understanding the duty of a witness to tell the truth. 

The record discloses facts upon which the District Court 

could properly reach such a conclusion. 

"It is within the discretion of the trial judge to 

determine competency and his findings will not be overturned 

absent an abuse of discretion." State v. Camitsch (1981), 

Mont. , 626 P.2d 1250, 1256, 38 St.Rep. 563, 569; 

State v. Shambo (1958), 133 Mont. 305, 309, 322 P.2d 657, 

659. 

We find no abuse of discretion in allowing the testimony 

of Bex. 

11. 

Whether the sentence imposed, which is twice as long as 

that recommended by the presentence report, is valid. 
The sentence hearing was held April 30, 1981. At that 

time, the court had before it a presentence report prepared 

by the Department of Institutions, which recommended that 

Stephans be sentenced to fifteen years at the Montana State 

Prison and designated a dangerous offender for parole purposes. 

The trial judge sentenced Stephans to thirty years at 

Montana State Prison and designated him as a dangerous 

offender for parole purposes. 

Upon imposing the sentence, the judge gave reasons for 

the sentence: 

"I also find that although the amount taken 

by the Defendant in the robbery was only 

about twenty-eight dollars, the Defendant 

caused the store clerk to be extremely terrified and fearful for her life. The Defendant continues to show no remorse for his 

actions and belittles the seriousness of his 

crime and its effect upon the victim. 

"The court concludes that the imprisonment 

of the Defendant will serve to protect the 

public from any additional crimes being convicted [sic] by the Defendant. Imprisonment 

of the Defendant should be of sufficient 

length to act as a sufficient deterrent of 

the Defendant not to commit an additional 

crime. Rehabilitation of the Defendant 

while on probation has no chance of success. 

The Defendant presents a danger to the public 

and should be designated as a dangerous offender for the purpose of parole eligibility." 

(Transcript of April 30, 1981 at 20-21.) 

The judge's findings of fact and conclusions of law contained 

a detailed basis for the sentence, including that Stephans 

had previous convictions of three felonies, three misdemeanors, 

and three parole violations, and show that the judge was 

aware of the contents of the presentence report. When asked 

by the defendant's attorney to state reasons why the presentence 

report's recommendation of fifteen years was not followed, 

the judge replied: 
for 

"I had an opportunity to observe this Defendant during the entire trial. I heard his 

testimony in court. I watched him during 

the trial. I continued to observe him today. 

By his own admissions, he does not acknowledge the seriousness of the offense. He continued to think that he should be allowed 

another chance. He has had chance after 

chance after chance. I do not want him in 

this community because he poses a danger to 

the people of this district, and I will not 

allow him to remain here." (Tr. of April 30 

at 21-22. ) 

The defendant has the right to have his sentence reviewed 

equity , disparity, or considerations of justice by the 

Sentence Review Board. He has the right to appeal his 

sentence to the Montana Supreme Court to determine its 

legality. State ex rel. Greely v. District Court of the 

Fourth Judicial District (1979), 180 Mont. 317, 327, 590 

P.2d 1104, 1110. Stephans contends that although the judge 

gave reasons for his sentence, he did not explain its disparity 

with the recommendation in the presentence report, and 

therefore, the sentence is not legal. 

Section 46-18-111, MCA, provides that in the event the 

court requests a presentence report, the report is to be 

considered by the court. The section reads: 

"Presentence investigation. No defendant convicted of a crime which may result in commitment for 1 year or more in the state prison 

shall be sentenced or otherwise disposed of 

before a written report of investigation by 

a probation officer is presented to and considered by the court unless the court deems 

such report unnecessary. The court may, in 

its discretion, order a presentence investigation for a defendant convicted of any 

lesser crime or offense." 

There is no requirement that the sentencing judge adopt the 

recommendation of the presentence report or that he state 

reasons for any discrepancy between the recommended sentence 

and the one actually imposed. The sentencing judge must 

only specify reasons why the sentence was imposed. State v. 
Stumpf (1980), Mont. , 609 P.2d 298, 37 St.Rep. 

673; Cavanaugh v. Crist (1980), Mont. , 615 P.2d 

890, 37 St.Rep. 1461. The District Court met this requirement. 

There is no basis for the sentence to be considered 

illegal. The District Court's judgment is affirmed. 

We Concur: 

Chief Justice