No. 84-408 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

STATE OF MONTANA, 

Plaintiff and Respondent, 

EDDIE TWOTEETH, JR., 

A Youth under the age of 18 years, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County 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 : QEC 1 8 1985 

Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Appellant, Edward Gerald Twoteeth, a minor, 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 Tom Wallace, 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 they were 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 

third person would be bringing the necessary papers to enable 

them to cross the border. (It was never substantia.ted that 

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 the bar, the appellant drank 
only Pepsi, and then Hulse invited the women and the 

appellant out to the rig site for chili, gasoline and a place 

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 

Glacier County, Montana, on the Tuffy 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 the van. 

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 the blade across each of his cheeks and smiled. 

The knife was 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 

Firman and 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 

appellant walked by. As he did, Brown invited him in to warm 

up. The appellant was wearing a light shirt and, when in the 

boiler room, stood with his arms crossed in front of him at 

belt level, as though he 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 knife or other weapon. 

James and Buffalo then left the boiler room, as James 

had to "catch another 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 

appellant and Feek. 

On his way back from catching a sample, James stopped by 

the boiler room to see if the rest of the group was still 

there. From the doorway he saw no one was in the boiler 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 left hand, saying "she stabbed 

me, she stabbed me." 

As the group gathered by the rig, Firman, who had been 

working on the rig, walked out to where he coul-d see the area 

and the people standing below. After viewing the group 
approximately 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 that had Buffalo gone to the boiler room 

in the amount of time she was separated from the group which 

was testified to be approximately 15 minutes, he would 

probably have seen her. Further, James testified that he 

would have met Buffalo had she gone to the boiler room after 

she had gone to the van to see her child. 

Feek was stabbed in the hack below the left shoulder. 

The wound was 3.5 centimeters long and 10 centimeters deep. 

The knife had been plunged into the lung and had severed the 

major branches of the pulmonary artery. After Feek came out 

of the boiler room and collapsed, he was taken to the trailer 

where Tom Wallace was still sleeping. Eventually he was 

placed in the women'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 sheriff and a deputy pulled up alongside the women's van, 

which was again parked at the site. Potts was sitting the 

van and told the sheriff and deputy that the appellant was 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 sheriff Is office, in 
response to the deputy's question as to whether something was 

wrong with him, the appellant stated: "I don't know, I guess 

I was drunk." 

After Feek's death, a delinquency petition was filed 

seeking the adjudication of the appellant as a delinquent 

youth for the commission of a deliberate homicide. On August 

9, 1984, the District Court, sitting as a Youth Court and 

without a jury, found the appellant to be a delinquent youth 

for the commission of a deliberate homicide. Following a 

dispositional hearing held September 7, 1984, the District 

Court ordered that a.ppellant be placed in the custody of the 

Department of Institutions until he reaches 21 years of age. 

Appellant raises seven issues on appeal: 

1. Given the exculpatory evidence, factors, inferences 

and presumptions which are contained in the record: 

a. Was the contested offense supported by 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 there was 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 strong 
probability or a shrewd conjecture" such as to void the 

finding of delinquency? 

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 for having committed 

an intentional homicide? 

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 in his 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 the public? 

For purposes 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 offense which, if committed by an 

adult, would constitute a criminal offense." The offense the 
appellant was accused of committing was 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 a delinquent youth. 

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 State was insufficient for the court to find 

that he committed a deliberate homicide. 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 appellant was a delinquent youth. 

Section 41-5-521(2) provides in part: 

An adjudicatory hearing shall be 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 State did not meet its burden of proof 

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 

conviction based only upon circumstantial- evidence. Although 

this case does not involve a crimina.1 trial, we find the rule 

applicable because of the State's high 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 finding the appellant a delinquent youth. 
The rule to which the appellant refers states that when 

a conviction is sought solely on circumstantial evidence, the 

facts and circumstances must not only be entirely consistent 

with the theory of gui3.t but must be inconsistent with any 

other rational theory. State v. Starr (Mont. 1983), 664 P.2d 

893, 896, 40 St.Rep. 796, 798; State v. Stoddard !1966), 147 

Kent. 402, 408, 412 P.2d 827, 831-. Any determination of 

circumstantial evidence which may be sufficient to sustain a 

conviction must be made considering all the facts and 

circumstances of the case, considered col~lectively. State v. 

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 

deliberate homicide. 

A person commits the offense of deliberate homicide if 

he purposely or knowingly causes the death of another human 

being. Sections 45-5-101 to -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, 

deliberate homicide. 

The record reveals that the oil rig was located in a 

desolate and isolated farming area. There were no other 
people 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 themselves and pinpointed their own location on 

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 the weapon 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 room with 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. Two 
witnesses testified that at first sight, they thought the 

appellant was 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.onishment that 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 other provided 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, 

are matters for determination by the trier of fact. State v. 

Pierce (19821, 199 Mont. 57, 63, 647 P.2d 847, 851; State v. 
Hardy (1980), 1-85 Mont. 130, 136, 604 P.2d 792, 796; State v. 

Gone (1978), 179 Mont. 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-lant contends that the two women, both of whom 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 in all. criminal prosecutions the accused 

has the right to process to compel the attendance of 

witnesses. U.S. Const. amend VI; 1972 Kont. Const., Art. 11, 

§ 24. The Youth Court Act, 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 citizens and could not be legally compelled to appear. 

Where an American court lacks the power to compel a witness 

who is not an American citizen to appear, a defendant's right 

to compulsory process is not violated by the absence of the 
witness. United States v. Wolfson (19711, 322 F.Supp. 798, 

820-22, aff'd, 454 F.2d 60 (3d Cir. 1972), cert. denied, 406 

U.S. 924 (1972); United States v. 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, though we do not pass on the 

constitution.al question, the appellant's right was not 

affected. 

The final issue raised by the appellant i.s whether 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.tutions without a prior 

hearing. The appellant. apparently contend-s that 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 the public." 

On November 20, 1984, the Youth Court held a 

dispositional hearing. The dispositional order directed 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 the Youth his custody shall automatically revert 

to the Montana Sta.te Department 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 than at Pine Hills as appropriate. 

During the hearing, the appellant objected to the automatic 

transfer of custody to the Department of Institutions on the 
appellant's completion of 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-spositions and 

gives the Youth Court the authority to place the youth in the 

custody of the Department of Institutions and. in a youth 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 

the Youth Court. 

We Concur: