No. 91-507 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

plaintiff and Respondent, 

-vsLEROY P. FLESCH, SEP 1 4 1992 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Toole, 

The Honorable R. D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gregory A. Jackson, Jackson & Rice, Helena, Montana 

Wendy Holton, Attorney at Law, Helena, Montana 

For Respondent: 

Mike McGrath, Special Assistant Attorney General, 

Helena, Montana 

Merle Raph, Toole County Attorney, Shelby, Montana 

Filed: 

Submitted on Briefs: July 30, 1992 

Clerk 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from the District Court of the Ninth 

Judicial District of the State of Montana, in and for the County of 

Toole. The appellant, Leroy P. Flesch (Flesch) appeals his 

conviction by a Flathead County jury. The case was removed from 

Toole County for Flesch's trial on the offenses of aggravated 

kidnapping and intimidation, both felonies under § 45-5-303 (1) (c) , 

MCA and H 45-5-203(1)(a), MCA, respectively. We affirm. 

Two issues are presented for our consideration: 

1. Did the pre-accusation delay in charging Flesch 

irreparably damage his right to present an alibi defense? 

2. Was the jury given an improper, insufficient and 

misleading definition of "reasonable doubt?'I 

At approximately midnight on June 4, 1990, as attorney Richard 

Beatty (Beatty) was leaving his Shelby, Montana office through the 

rear door, he was attacked by an unidentified man in the carport 

behind his law office. The man grabbed Beatty, put his hand over 

Beatty9s mouth and eventually pushed him to the ground. About that 

time a pickup truck pulled up to the scene of the struggle. Beatty 

was forced inside the pickup, but not before the unidentified man 

struck him in the face several times with his fists, With Beatty 

on his knees on the floorboards and his head face down, pinned to 

the seat, the unidentified assailant entered the pickup through the 

passenger-side door. 

carport and west into 

Beatty testified 

The driver then drove the pickup out of the 

a rural area outside Shelby. 

that approximately fifteen to twenty minutes 

2 
after being forced into the pickup, the driver stopped the truck 

and "the thug [the unidentified assailant] grabbed me by the back 

of the collar, back of the neck, back of my jacket and tossed me 

out of the pickup on to the groundv where he was again violently 

assaulted. 

After repeatedly assaulting Beatty, the '1thug8g stopped and 

told him to get back into the truck with the driver who had been 

sitting behind the wheel during the latest assault. Beatty 

testified that at this time the driver identified himself as the 

appellant, Leroy Flesch. Beatty, indeed, recognized the driver as 

Flesch, a former resident of Shelby and former client of his law 

firm. 

After Beatty realized who the driver was, discussion began 

between Flesch and Beatty regarding what was happening and why. 

Beatty testified that it was during this discussion that Flesch 

made his demands known: Flesch wanted his legal. files from Beatty s 

law office and $20,000 in cash. Beatty testified that Flesch 

stated, ''1 know you didn't work on the files, those other guys [in 

the Eim] did it. I'm not through with them yet. Their day will 

come but you were a senior member of that firm and I've been going 

through hell for the last eight years and you're going to pay for 

it . . . [and] it cost a lot of money to hire thugs. . . ." Flesch 

demanded that Beatty deliver the files and $20,000 for his time and 

trouble. 

In addition to the demand for his files and the cash, Flesch 

told Beatty that prior to that evening's events he had been 
watching him and learned his work routine. He said that he had not 

only hired the one thug but had two other persons watching Beatty's 

home, so that if he called the sheriff or law authorities after he 

was released, Beatty's wife would be in danger. 

Beatty informed Flesch that he would not be able to raise 

$20,000; "Every time I told him that I couldn't get him the money 

it would make him mad." Thereafter, Beatty testified, Flesch 

"motioned with his hand, he said I think you need a little tuning 

up, . . . [whereupon] the thug reached in [the truck cab] and he 

grabbed me by the shirt front and pulled me around and whacked me 

in the face a couple more times. . . . " After a second threat to 

"tune him up," Beatty finally agreed to get the files together, put 

them in a box along with the $20,000, and deliver them to Flesch in 

Helena, Montana. 

Flesch told Beatty that if he did not deliver the files and 

money within one week, Flesch would "not . . . have you stabbed or 

shot or anything like that, I'm not that cold hearted, but I will 

have these thugs come and break your arms and legs, and if you 

don't get this done in a week, it's going to be too bad for you and 

too bad for your family." 

After more than an hour of being held captive by Flesch and 

his thug, Beatty was dropped off at a cemetery south of Shelby. He 

then walked to his office to retrieve his car, drove home and 

awakened his wife at approximately 2:30 a.m. She was a witness as 

to his condition at the time he returned home. She testified his 

face was swollen, his shirt had been torn open and he was "upset 
and scared. 

Beatty reported the incident on June 6, 1990 when he met with 

the county attorney and sheriff and deputy sheriffs and gave them 

the details of the assault and kidnapping. Thereafter, Toole 

County law enforcement authorities conducted an extensive 

investigation. Statements were taken and transcribed, and agents 

of the State Department of Justice and the Lewis and Clark County 

Sheriff's Office were brought in to try to locate the truck in 

which Beatty had been taken when he was kidnapped. The authorities 

in Helena located the type of pickup truck that Beatty had 

described at Flesch's residence in Helena. 

Flesch ultimately was arrested on October 5, 1990. He filed 

a motion to dismiss for failure to charge within a reasonable time, 

attaching affidavits of his wife and Beverly Finstad, a Helena 

casino employee. At a hearing held on April 8, 1991, both Mrs. 

Flesch and Ms. Finstad were called as witnesses. At the hearing 

and later at the trial, both testified that they believed but could 

not be certain that Flesch was at the Gold Nugget Casino in Helena, 

Montana at the time of the incident. Flesch argues that due to the 

delayed arrest neither could positively testify about his 

activities that night. Had they known about the charges within a 

reasonable time after the incident, he argues, they would have been 

able to state with certainty whether he was in the casino at the 

time of the incident herein related. At trial neither Mrs. Flesch 

nor Ms. Finstad would positively state that Flesch was in Helena at 

the time of the assaults and kidnapping. 
I 

As to the first issue regarding the delay in filing the 

information against him and the denial of his motion to dismiss, 

Flesch relies on the Fifth Amendment right to due process of law 

and Article 11, 5 17 of the Montana Constitution. To prevail on 

such a motion he must show prejudice to the defense from the delay, 

a primary consideration in United States v. Marion (1971), 404 U.S. 

307, 92 S.Ct. 455, 30 L.Ed.2d 468; United States v. MacDonald 

(1982), 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696; United States 

v. Lovasco (1977), 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752; 

State v. Burtchett (1974), 165 Mont. 280, 530 P.2d 471; and State 

v. Larson (1981), 191 Mont. 257, 623 P.2d 954. 

As a final authority, Flesch relies heavily on a recent 

opinion of this Court, State v. Krinitt (Mont. 1991), 823 P.2d 848, 

48 St.Rep. 1088. In applying Krinitt to the present case, however, 

Flesch admits that the prosecution was commenced within the 

applicable five-year statute of limitations, 5 45-1-205(a), MCA. 

In Krinitt, this Court considered a pre-indictment delay of almost 

two years and found no basis to reverse the conviction. There we 

re-established the standard of review for a due process violation: 

Thus, in considering a defendant's claim that preindictment delay violated his due process rights, the 

court must first determine whether the defendant suffered 

actual, substantial prejudice. . . . Upon a showing that the defendant suffered actual, 

substantial prejudice from the delay, the court must then 

weight the justification for the delay, as well as the 

absolute length of the delay, to determine if due process 

has been denied. . . . 

Krinitt, 823 P.2d at 852, 48 St.Rep. at 1090 (citations omitted). 
Here, Flesch presented an alibi defense. To support that 

defense he called his wife and Beverly Finstad. At the pre-trial 

hearing on April 8, 1991, Ms. Finstad testified that she might have 

remembered having seen Flesch in the casino on the night of the 

crime--June 4, 1990--if charges had been brought within two weeks 

of that date. Under cross examination she stated that once two or 

three days had lapsed she could not swear under oath as to who was 

in the casino on any given day or given time. Further, she 

acknowledged that she could not remember who was in the casino six 

days prior to the hearing or whether Flesch was in the casino on 

April 2, only six days before the hearing. 

Bonnie Flesch also testified at the pre-trial hearing that she 

was almost positive her husband was home the night of the alleged 

incident, but could not be certain. At trial, she testified that 

her husband was at home the night of the incident: 

Q: You earlier stated, positively, you couldn'tsay 

for sure whether Leroy Flesch was home that night, the 

night of June 4th and the early morning hours of June 

5th, is that correct? 

A: No, I didn't say that. I said he was home. I 

don't know exactly what time he got home but I know he 

was home that night because when I got up at quarter 

after 5:00, he was home. 

This alibi defense went to the jury and it failed. Thus it was not 

a State action that created any prejudice to Flesch regarding these 

witnesses. 

Flesch asserts incorrectly that a 120-day delay occurred. In 

fact, only 107 days elapsed between June 4, 1990, when the crime 

was committed and September 20, 1990, when Flesch was charged. 
Flesch falsely proclaims that "no further investigation took place 

after June 28, 1990." We conclude from the record that this is not 

correct. At trial the jury heard taped telephone conversations 

between Flesch and the victim, Beatty, which took place July 9, 

1990. Undersheriff Jay Lambert testified at trial that he 

conducted an investigation of the matter into late July. The Toole 

County Attorney gave Beatty a tape recorder anticipating that 

Flesch would contact Beatty again since the $20,000 was not paid. 

When it became apparent that Flesch was not going to contact Beatty 

again, the county attorney filed the charges. 

There is a balancing test in this state regarding the filing 

of charges. In State v. Curtis (1990), 241 Mont. 288, 297, 787 

P.2d 306, 312 (citations omitted), this Court stated: 

Even if some prejudice had been proven in this case, 

that prejudice must outweigh the necessity of allowing a 

reasonable time to investigate the crime. In United 

States v. Lovasco, the United States Supreme Court 

recognized that reasonable investigative delay protects 

the interests of both the State and the defendant. From 

the potential defendant's perspective, premature 

indictment would, 

"increase the likelihood of unwarranted 

charges being filed, and would add to the time 

during which the defendants stand accused but 

untried. These costs are by no means 

insubstantial since . . . a formal accusation 

may interfere with the defendant's liberty, 

disrupt his employment, drain his financial 

resources, curtail his associations, subject 

him to public obloquy, and create anxiety in 

him, his family and his friends." 

We hold this case is well within the applicable statute of 

limitations in that only 107 days elapsed from the date of the 

crime itself to the filing of the charges. In Krinitt, this Court 
upheld a pre-indictment delay of almost two years, far longer than 

the delay in the instant case. 

The second issue is whether the ~istrict Court properly 

instructed the jury on reasonable doubt. Flesch objected at trial 

to the instruction given by the trial court: 

Proof beyond a reasonable doubt is proof of such a 

convincing character that a reasonable person would rely 

and act upon it in the most important of his or her own 

affairs. Beyond a reasonable doubt does not mean beyond 

any doubt or beyond a shadow of doubt. 

In his objections to the instruction, Flesch relies on Cage v. 

Louisiana (1991), - U.S. , 111 S.Ct. 328, 112 L.Ed.2d 339, 

wherein the United States Supreme Court discussed the reasonable 

doubt instruction. Flesch alleges that in Case the united States 

Supreme Court disapproved an instruction that was llstrikinglyM 

similar to the jury instruction given in this case. Reading Case 

we find that the instruction there was considerably different from 

the instruction given in this case. The language in the Case 

instruction is as follows: 

If you entertain a reasonable doubt as to any fact or 

element necessary to constitute the defendant's guilt, it 

is your duty to give him the benefit of that doubt and 

return a verdict of not guilty. Even where the evidence 

demonstrates a probability of guilty, if it does not 

establish such guilt beyond a reasonable doubt, you must 

acquit the accused. This doubt, however, must be a 

reasonable one; that is one that is founded upon a real 

tangible substantial basis and not upon mere caprice and 

conjecture. It must be such doubt as would give rise to 

a grave uncertainty, raised in your mind by reasons of 

the unsatisfactory character of the evidence or lack 

thereof. A reasonable doubt is not a mere possible 

doubt. It is an actual substantial doubt. It is a doubt 

that a reasonable man can seriously entertain. What is 

required is not an absolute or mathematical certainty, 
but a moral certainty. 

Caqe, - U.S. at , 111 S.Ct. at 329, 112 L.Ed.2d at 341, This 

is not "strikingly similarlt to the instruction used in this case. 

In State v. Lucero (1984), 214 Mont. 334, 343, 693 P.2d 511, 

516, this Court specifically stated that more complicated 

instructions on reasonable doubt did not help clarify the Staters 

burden of proof, but rather had a tendency to confuse the jury. In 

Lucero, this Court approved the instruction given in the present 

case, which is patterned after Model Montana Criminal Instruction 

No. 1-004. See State v. Goodwin (Mont. 19911, 813 P.2d 953, 48 

St.Rep. 539. We hold that the reasonable doubt instruction given 

in this case was proper. 

Af f inned. 

We concur: 

5flyy,f Chief Justice 
September 14, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Gregory A. Jackson 

Jackson & Rice 

833 Last Chance Gulch 

Helena, MT 59601 

Wendy Holton 

Attorney at Law 

44 W. 6th Ave. 

Helena, MT 59601 

Merle Raph 

Toole County Attorney 

P.O. Box 518 

Shelby, MT 49474 

Mike McGrath, Special Asst. Atty. General 

Lewis & Clark County Attorney 

228 Broadway 

Helena, MT 59623 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF ,MONTANA,