No. 84-408 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

STATE OF MONTANA, Plaintiff and Respondent,

EDDIE TWOTEETH, JR., A Youth under theage of 18years, Defendant and Appellant.

APPEAL FROM: DistrictCourt of theNinth Judicial District, In and fortheCounty of Glacier, The Honorable R. D. McPhillips, Judge presiding.

COUNSEL OF RECORD:

For Appellant: James W. Zion, Helena, Montana

For Respondent: Hon. Mike Greely, At.torney General, Helena, Montana James C. Nelsen, Glacier County Attorney, Cut Bank, Montana

Submitted on Briefs: Sept. 26, 1985 Decided.: December 18, 1985

Filed: 

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ClerkMr. Justice John C. Sheehy delivered the Opinion of the Court.

Appellant, Edward Gerald Twoteeth,aminor,appeals from the order of the District Court, Ninth Judicial. District, County of Glacier, sitting as a Youth Court, finding him to be a delinquent youth pursuant to section 41-5-521(6), MCA, and ordering that a predispositional report be made concerning Edward and that a dispositional hearing be held. We affirm. On February 14, 1984, Edward and two women, Faith Buffalo and Lucy Potts, along with other unnamed minor children of either Buffalo or Potts, attempted to cross the United States/Canadian border. Their van.was turned back from the border at Sweetgrass, Montana. As a result, the appellant, Buffalo and Potts proceeded to the Glocca Morra Bar in Sweetgrass,Montana, at about 10:OO p.m. The appellant,Buffalo and Potts met and conversed with two

### men, Cove1 Hulse and TomWallace, in the bar. Hulse was employed by Simmons Drilling Company as the tool pusher for Simmons Oil Drilling Rig #31. For all intents and purposes, Ilulse was the foreman at this particular rig. Wallace was employed by a trucking company to haul water to Rig #31. Buffal.~ and Potts explained to the two men that theywere low

on money and gasoline and could not cross the border until 11:OO a.m. the next day when the appellant's father or some thirdpersonwould be bringing the necessarypapers to enable them to cross the border. (Itwas never substantia.tedthat Edward's father was ever bringing papers to the border.) After hearing this, the adult members of the group each consumed three or four beers at thebar, the appellant drankonly Pepsi, and then Hulse invited the women and the appellantout to the 

### rig site for chili,gasoline and aplace to spend the night. The Simmons Drilling Company Rig #31 was located approximately 20 miles west of Sweetgrass, Montana, or 25 miles north of Cut Bank, Montana. The drilling site was in GlacierCounty, Montana,on theTuffy Swenson farm. The site is located in remote farm country with only one farmhouse nearby. Hulse, Wallace, and the appellant proceeded to the rig site in a pickup while Buffalo, Potts and the children followed in thevan. The two vehicles arrived at the rig site at approximately 1:30 a.m. Hulse, Wallace, Buffalo, Potts and the appellant immediately entered Hulse's small- camping trailer at the rig site. They all ate chili and bread. The bread was sliced with a butcher knife purchased by Hul-se three days earlier. During the meal, the appellant picked the butcher knife up from the table and pretended to shave with it;drew theblade across each ofhis cheeksand smiled. The knifewas taken away from the appellant

### by Potts and put into a drawer in the trailer. Apparently the knife was placed in the drawer in full view of al-1 those in the trailer. After the meal., Edward and Wallace fell asleep in the trailer. Also present at the rig site at this time were four other workers: The decedent George Feek, Craig Brown, Ray Firmanand Cody James. At some point Buffalo and Potts requested a tour of the rig site. Around 2:30 a.m., the tour commenced. The tour

was conducted by Brown and James. The tour included a look

### inside the boiler room. When the women, Brown and James arrived in the boiler room, Feek was scrubbing the ceiling. As the five people were standing in the boiler room, the appellantwalked by. As he did,Brown invited him in towarm up. The appellantwaswearing a light shirtand,when in the boiler room, stood with his arms crossed in front of him at belt level, as thoughhe were cold. No one noticed anything peculiar about the youth except for the fact he was dressed in a t-shirt and it was cold. No one saw the appellant holding a knifeor otherweapon. James and Buffalo then left the boiler room, as James had to "catchanother sample." En route to the rig,Buffalo went to the van where one of her children was standing and crying. The appellant, Potts, Brown and Feek were in the boiler room when James and Buffalo left. Very soon thereafter, everyone left the boiler room except the appellantand Feek. On hisway back fromcatchinga sample,James stoppedby the boiler room to see if the rest of the group was still there. From the doorway he sawno onewas in theboiler room but Feek and the appellant. Feek was scrubbing the ceiling of 

### the room, with his back to the appellant. James never heard any conversation between Feek and the appellant. James then met Hulse, Brown and Potts by the rig. Shortly thereafter, Buffalo returned from the van. At approximately the same time, Feek stumbled up to the group with the butcher knife in his lefthand, saying "she stabbed me, she stabbedme." As the group gathered by the rig, Firman,who had been working on the rig,walked out towhere he coul-dseethe area and the people standing below. After viewing the groupapproximately 30 seconds, Firman saw George Feek come out of the boiler room and stagger to the group with the knife in his hand. Firman saw no one other than Feek come out of the boiler room. Brown testified thathad Buffalo gone to the boiler room in the amount of time shewas separated from the group which

was testified to be approximately 15 minutes, he would probably have seen her. Further, James testified that he would havemet Buffalo had she gone to the boiler room after shehad gone to thevan to seeher child. Feek was stabbed in the hack below the left shoulder. The wound was 3.5 centimeters long and 10 centimetersdeep. The knifehad been plunged into the lung and had severed the major branches of the pulmonary artery. After Feek came out of theboiler room and collapsed,hewas taken to the trailer where Tom Wallace was still sleeping. Eventually he was placed in thewomen's van and taken to meet an ambulance. He

was pronounced dead on arrival at the hospital in Cut Bank. A search of the area for the appellant 

### by the workers after the incident was fruitless. The sheriff and deputy sheriff who arrived at the site at approximately 5:40 a.m. also could not find the appellant. After searching the surrounding area in a pickup truck, the sheriffand a deputy pulled up alongside thewomen'svan, whichwas againparked at the site. Pottswas sitting the

van and told the sheriffand deputy that the appellantwas in the van. The officers found the appellant apparently hiding in a small cabinet in the van which measured approximately 18"

### x 3_8" x 30." The appellant was then put in the deputy sheriff's pickup truck. During the ride to the sheriffIs office, inresponse to the deputy'squestion as to whether somethingwas wrong with him, the appellant stated: "Idon't know, I guess Iwas drunk." After Feek's death, a delinquency petition was filed seeking the adjudication of the appellant as a delinquent youth for the commission of adeliberate homicide. On August 9, 1984, the District Court, sitting as a Youth Court and without a jury, found the appellant to be a delinquentyouth for the commission of 

### a deliberate homicide. Following a dispositional hearing held September 

### 7, 1984, the District Court ordered that a.ppellantbe placed in the custody of the Department of Institutions until he reaches 21years of age. Appellant raises seven issues on appeal: 1. Given the exculpatory evidence, factors, inferences and presumptionswhich are contained in the record:

a. Was the contested offense supportedby proof beyond

a reasonable doubt as required by section 41-5-521(2)

## ,MCA; b. Is there reasonable doubt to find the appellant is a "delinquent youth" as defined in section 41-5-103(12),PIICA; and

c. Was the presumption of innocence which operated to the point of adjudication overcome? 2. Whether therewas any rational theory of the act of another causing the homicide or rational theory of the youth's innocence which could cause the circumstantial evidence in this case to be inconsistent with a theory of guilt? 3. Whether the findings and statements of the Youth Court were such as to show the adjudication of delinquency

was founded only upon a "justifiable suspicion, a strongprobability or a shrewd conjecture" such as to void the finding ofdelinquency? 

### 4. Whether improper evidence, inconsistency or clear witness advocacy defeats the circumstaiitial case or gives rise to a reasonable doubt? 5. Given all the facts and matters in this case,which has been described by the Youth Court as "bizarre" and "inexplicable"was there substantial evidence to support the adjudication of the youth as delinquent forhaving committed

an intentionalhomicide? 6. Whether the failure of the State to either secure the presence at the hearing of two material witnesses or to obtain their testimony by adversarial process before they fled to Canada either denied the youth his right to process which would effectively compel the attendance of those witnesses or whether that failure raises 

### an exculpatory presumption inhis favor? ?. Whether the dispositional hearing conducted under section 41-5-522, MCA (a) provided the youth a sufficient opportunity to present alternatives for disposition, (b) adequately safeguarded the youth's needs by providing a dispositional alternative to return to the Pine Hills School at Miles City, or (c)was in the best interest of the youth and thepublic? Forpurposes of our review,the first five issues raised by the appellant may be consolidated into one: whether the Youth Court properly found appellant to be a delinquent youth. Section 41-5-103(12)(a)defines a delinquent youth as a youth "who has committed an offensewhich, if committedby an adult,would constitutea criminaloffense." The offense theappellantwas accused of committingwas deliberate homicide. If a deliberate homicide is committed by an adult it constitutes a criminal offense. Therefore, if the Youth Court properly f0un.d the appellant to have committed a deliberate homicide based upon the circumstantial evidence presented by the State, it acted properly in finding appellant adelinquentyouth. There is no dispute that the State's entire case rested upon circumstantial evidence. The crux of the appellant's contention, however, is that the circumstantial evidence presented by the Statewas insufficient for the court to find that he committed a deliberatehomicide. The State contends that the State did meet its burden of proof by presenting substantial evidence to support the Youth Court's concl.usion that the appellantwas adelinquentyouth. Section 41-5-521(2)provides inpart: An adjudicatory hearing shallbe held.to determine whether the contested offenses are supported by proof beyond a reasonable doubt in cases involving a youth alleged to be delinquent.. 

# .

# . If the hearing is before the youth court judge without a jury, the judge shall make and record his findings on all issues. In contending that the Statedid not meet its burden ofproof and that the Youth Court's findings of fact and conclusions of law were not supported by the evidence, the appellant directs this Court to its rule regarding obtaining a convictionbased only upon circumstantial- evidence. Although thiscasedoesnot involve a crimina.1trial,we find the rule applicable because of the State'shigh burden of proof. We, however, also find that the application of this rule to the present case leads to the affirmance of the Youth Court's order findingthe appellant adelinquent youth.The rule to which the appellant refers states that when

a conviction is sought solely on circumstantialevidence, the facts and circumstances must not onlybe entirely consistent with the theory of gui3.t but must be inconsistent with any other rational theory. Statev. Starr (Mont. 1983), 664P.2d 893, 896, 40 St.Rep. 796, 798; Statev. Stoddard !1966), 147 

### Kent. 402, 408, 412 P.2d 827, 831-. Any determination of circumstantialevidence which may be sufficientto sustain a conviction must be made considering all the facts and circumstancesof the case,considered col~lectively. Statev. Armstrong (Mont. 1980), 616 P.2d 341, 346, 37 St.Rep. 1563, 1567. But it is also the rule that each fact in the chain of circumstances need not he proven beyond a reasonable doubt. Rather, the State must prove that there is not a reasonable doubt arising from consideration 

### of all the evidence in the

case. State v. Fitzpatrick (1973),163 Mont. 220, 326, 516 P.2d 605, 609. We hold, after considering the entire record that the State met its burden of proof and that there is substantial evidence in the record to uphold the Youth Court's order finding appellant 

### a delinquent youth for having committed a deliberatehomicide. A person commits the offense of deliberate homicide if he purposely or knowingly causes the death of another human being. Sections 45-5-101to -102,MCA. Thus,we must review the record to determine whether there is substantial circumstantial evidence to support the Youth Court's finding that the appellant committed the contested offense, deliberatehomicide. The record reveals that the oil rig was located in a desolate and isolated farming area. There were no otherpeople at the rig site other than the appellant, Buffalo, Potts, Hulse, Firman, Brown, Wallace, James, the deceased George Feek and minor children who were sleeping in the van. Each of the above-nahed people, except the appellant, accounted for themselvesand pinpointed their own locationon the rig at the time of the stabbing of George Feek. This accounting was either through their own testimony, substantially corroborated, or the testimony of others. 1mmediatel.y following the collapse of Feek at the stairs to the rig, each person on the rig site is accounted for except the appellant. The appellant was left in the trailer where the weapon

was located when the group moved to the rig for a tour. He joined the group in the boiler room sometime later, after he had first walked past the boiler room door. He then entered the boiler room with his arms crossed at his waist. Witnesses testified he could have had his arms crossed to hide theweapon in his pants or he may have been cold due to wearing only a t-shirt in the 15-20' Fahrenheit temperature that night. When the group disbursed and moved on to the stairs of the 

### r, the appellant remained behind in the boiler room. The appellant was last seen in the boiler roomwith Feelc by James. James testified that the appellant and Feek were in the boiler room and that Feek was working with his back to the appellant. Minutes later, Feek came stumbling out of the boiler room and said, "She stabbed me! She stabbed me!" With regard to Feek's statement the evidence indicated the appellant had long hair down to the small of his back pulled into a pony tail. The appellant also has a small frame standing approximately 5'5" tall in height. Twowitnesses testified that at first sight, they thought the appellantwas a female. The Youth Court also noted that the appellant bore no outwardly visible signs, such as a mustache, beard, tatoos or jewelry that would provide a reasonable person with a clue to the appellant's gender. The Youth Court obviously inferred that Feek was mistaken about the appell-ant's gender when he made the statement. Based on the evidence presented, it was proper for the Youth Court to do so. Sections 26-1-501 to -502, MCA

# . Immediately following the collapse of Feek, the appellant could not be located anywhere upon the rig site. At approximately 5:40 a.m., the deputy sheriff could not locate the appellant anywhere on the rig site or the surrounding farm country. At 7:50 a.m., the law enforcement officers were told 

### by Potts that the appellant was hiding inside the van. The appellant was found hidden in a small cabinet approximately 30" tall, 18" wide, and 18"deep. The officer expressed ast.onishmentthat anyone could hide in such

a small cabinet. It is well settled that the flight or concealment of a person immediately after the commission of a crime,or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by the trier of fact in light of all otherprovided facts in deciding the question of his guilt or innocence. Whether or not evidence of flight or concealment shows a consciousness of guilt, and the significance, if any, to be attached to such a circumstance,

arematters fordeterminationby the trier of fact. Statev. Pierce (19821,199Mont. 57, 63, 647 P.2d 847, 851; Statev.Hardy (1980),1-85Mont. 130, 136, 604P.2d 792, 796; State

### v. Gone (1978),179Mont. 271, 277, 587 P.2d 1291, 1295. Again, considering all the circumstantial evidence collectively,we find that the State met its burden and the court properly found the appellant to be a delinquent youth for having committed the contested offense, deliberate homicide. The second issue raised by the appellant is whether his right to compulsory process was affected by the failure of Buffalo and Potts to testify at the adjudicatory hearing. The appel-lantcontends that the two women,both ofwhom were Canadian citizens, should have been required to testify at the adjudicatory hearing. The appellant claims that their failure to appear was a violation of his right to have process to compel witnesses to appear, for which the State was responsible, d.espite the fact the State had the women served with subpoenas

### by the Royal Canadian Mounted Police. It is true that inall.criminal prosecutions the accused has the right to process to compel the attendance of witnesses. U.S. Const. amend

### VI; 1972Kont. Const., Art. 11, § 24. TheYouth CourtAct,however, expressly states that an adjudication under the act shall not be deemed a criminal conviction. Section 41-5-106,MCA. Thus, the question seems to arise whether a youth involved in a delinquency adjudication is even entitled to this constitutional right. We, however, find it unnecessary to reach the constitutional issue in the instant case because the women were not United States citizensand could notbe legally compelled to appear. Where an American court lacks the power to compel a witness who isnot anAmerican citizen to appear, a defendant's right to compulsory process is not violated by the absence of thewitness. United States

### v. Wolfson (19711,322 F.Supp. 798, 820-22,aff'd, 454 F.2d 60 (3dCir. 1972), cert. denied, 406 U.S. 924 (1972); United Statesv. Greco (2d~j.r.19621, 298 F.2d 247, 251,cert. denied, 369 U.S. 820 (1962). In this case, the witnesses were outside the jurisdictional limits of the Youth Court and could not be compelled to appear. Therefore, thoughwe do notpass on the constitution.al question, the appellant's right was not affected. The final issue raised by the appellant i.swhether the Youth Court acted properly by allowing for the automatic transfer of the appellant from the Griffith Center in Colorado to the Department of 1nsti.tutionswithout a prior hearing. The appellant.apparently contend-sthat the Youth Court's dispositional order was in contravention of section 41-5-522(4), MCA, which requires the court to make a "disposition of the case best serving the interests of the youth and thepublic." On November 20, 1984, the Youth Court held a dispositionalhearing. The dispositional orderdirected that temporary custody of the appellant he placed in the Department of Social and Rehabilitation Services with instructions that the appellant be placed in the Griffith Center Program in Colorado. The District Court further ordered.: That upon completion of the Griffith Center Program by theYouth his custody shall automatically revert to the Montana Sta.teDepartment of Institutions. The Youth shall at that time be granted the right to file an additional petition requesting an alternate placement of the Youth in some program other thanat Pine Hillsas appropriate. During the hearing, the appellant objected to the automatic transfer of custody to the Department of Institutions on the

### appellant'scompletionof the Griffith Center program and, 

### in that regard, requested the Court to hold another hearing at that time as to the further disposition of the appellant in view of certain placement opportunities available to him in Canada. The Youth Court denied the appellant's request. The appellant now argues the order for automatic transfer to Pines Hills following treatment in Colorado was improper, contending that a hearing should be held before such a 

### transfer. Appellant, however, fails to show how the Youth Court's order violated the court's power to determine what is in the best interests of the youth and public. Section 41-5-523, 

### MCA, provides allowable di-spositionsand gives the Youth Court the authority toplace the youth in the custody of theDepartmentof Institutionsand.inayouth care facility. Given the court's power and the appellant's inability to show that the Youth Court's order was in violation of its power,we uphold the dispositional order of theYouth Court.

We Concur: