No. 91

-210 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

STATE OF MONTANA, Plaintiff and Respondent,-vsPERRY KRINITT, Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth JudicialDistrict, In and for the County of Gallatin, The Honorable Larry 

### w. Moran, Judge presiding.

COUNSEL OF RECORD: For Appellant: Larry Jent; Williams, Jent & Dockins, Bozeman, Montana For Respondent: Hon. Marc Racicot, Attorney General; Kathy Seeley, Asst. Atty. General, Helena,Montana A. Michael Salvagni, County Attorney; Jennifer eputy, Bozeman, Montana



## UEC 12

## 1991 Submitted on Briefs: October 3, 1991Justice Terry N. Trieweiler delivered the opinion of the Court. Appellant Perry Krinitt was charged by information with one count of theft, or in the alternative, one count of forgery. Following a jury trial,he was found guilty of theft and not guilty of forgery. Krinitt appeals from the judgment of conviction. We affirm. Krinitt raises three issues: 1. Did the delay in filing criminal charges violate appellant's right to due process? 2. Was sufficient evidencepresentedtoprove thatappellant intended to deprive the owner, his spouse, 

### of the property? 3. Was themoney taken "propertynormally accessibletoboth spouses" under 

### 5 45

-6

-303(2), MCA? Perry Krinitt (Krinitt) married Florence Krinitt (Mrs. Krinitt) in 1970. Mrs. Krinitt was the beneficiary of a family trust and had been receiving income from the trust on a quarterly basis since shewas 22years old,approximately oneyearbefore her marriage to Krinitt. She continued to receive the trust income during the marriage. She received a check from the trust in January, April, July, and October, usually between the loth and 15th of the month. Because of financial problems, the Krinitts filed for bankruptcy in 1981. They eventually losttheir home. Mrs. Krinitt feltthatherhusbandwas unable to controlhis financial situation and spending habits, and took steps to separate her finances from his. After the bankruptcy, she did not enter into joint financial

2obligations with Krinitt. She did not have a joint bank account with him. After she was discharged frombankruptcy, shereaffirmed certain of the debts and instituted a repayment schedule in 1983. The Krinitts were dependent on the income from Mrs. Krinitt's trust to pay bills and make debt payments. Some years earlier Krinitt had taken one of the trust checks and cashed it without Mrs. Krinitt's knowledge,making it difficult for her to meet her obligations. 

### In order to protect her ability to pay bills and debt payments, in 1985 she requested the trustee, Wells Fargo Bank, to send the quarterlydividend checks to her attorney's office,rather than her home. The dividend checks were deposited into a trust account from which she and her attorney paid bills and other obligations. Mrs. Krinitt also received a monthly income for household expenses. Krinitt did not have access to the trust account or these funds. Beginning in 1985, and continuing through 1986 and 1987, all of the trust dividends were sent directly to Mrs. Krinitt's attorney. The attorney would not release any of this money to Krinitt unless Mrs. Krinitt authorized him 

### to do so. 

### In September 1985, Mrs. Krinitt filed a petition for legal separation. The Krinitts, however, continued to live together until mid-1988. InOctober 1985, Mrs. Krinitt obtained a temporary restraining order to prevent Krinitt from transferring, encumbering, concealing, or disposing of any property. On November 7, 1985, the District Court ordered that "both [Mrs. Krinitt] and [Krinitt] are restrained from transferring,

3encumbering, concealing or otherwise disposing of any property, except in the usual course of business, or for the necessities of life and they are required to notify each other of any proposed extraordinary expenditures 

## . 

# . . . I1 In January 1988, Mrs. Krinitt was expecting to receive her quarterly dividend check on about the 10th of themonth. When the check did not arrive, she began to get worried. She called her attorney several times, but he had not received the check. She called Wells Fargo Bank and was told the check had been mailed about January 10th. Wells Fargo Bank informed her that the check had already been cashed. Krinitt had deposited the check in his account at Western Federal Savings and Loan on January 14, 1988. Mrs. Krinitt had no authority over this account, and was not even aware of its existence in January 1988. The dividend check was for $8015. When Krinitt presented 

### it to the teller at Western Federal Savings, the check had the signature "Florence Elizabeth Krinitt" endorsed on the back. Krinitt put his own signature on the check in front 

### of the teller. Mrs. Krinitt testified that she had not signed the check and the signature was not hers. She testified that 

### it was apparent from the face of the check that the check had been mistakenly mailed to the post office box she shared with Krinitt, instead of to her attorney's address. When Mrs. Krinitt questioned him about the lost check,Krinitt at first denied seeing it. Later, however, he admitted to her that he had cashed the check.

4Mrs. Krinitt told her attorney of what had happened, and the attorney notified Western Federal Savings that the check had been cashed improperly. In order to recover her lost money, Mrs. Krinitt filed an affidavit 

### of forgery with Western Federal Savings on February 18, 1988. Western Federal Savings reimbursed Mrs. Krinitt the $8015. Western Federal Savings was unable to charge Krinitt for the loss because there was never enough money in his account. Western Federal Savings reported the matter to the Bozeman Police Department. An officer of the police department interviewed Mrs. Krinitt in late February 1988. Mrs. Krinitt was reluctant to participate in the police investigation, but agreed to an interview. On March 1, 1988, the police department submitted a request for prosecution to theGallatin County Attorney's Office. However, the county attorney's officedecided not to file charges at that time. Apparently themain reason the county attorneydid notproceed with prosecution was the fact that Mrs. Krinitt was barred from testifying against her husband by § 26-1-802, MCA (spousal privilege), and 5 46-16-212, MCA (competency of spouses). The county attorney did not feel that he could prove the charges without her testimony. In February 1988, Mrs. Krinitt filed a petition for divorce. The couple was divorced in May 1989. InAugust 1988, Western Federal Savings sent Krinitt a demand letter to recover the $8015 he had misappropriated. In response,

5Krinitt agreed to repay themoney and requested a payment schedule be set up. On December 12, 1989, the Gallatin County Attorney filed an information charging Krinitt with one count of theft, 5 45-6-301(1), MCA, or in the alternative, one count of forgery, 

### 5 45-6-325(1), MCA. Following a jury trial,Krinittwas convicted of one count of theft. The District Court placed Krinitt on probation and deferred imposition of sentence for threeyearsupon certain conditions, including payment of a $10,000 fine and $3674 in other charges. He appeals from his conviction. I Did the delay 

### in filing criminal charges violate appellant's right to due process? Krinitt notes that he took and cashed his wife's dividend check in January 1988, and the police department requested the Gallatin County Attorney's Office to initiate prosecution in March 1988, but the county attorney delayed prosecution until December 1989. Krinitt contends that the nearly two year delay in filing criminal chargesagainst him violatedhis rightto dueprocess. We disagree. This Court has previously considered the circumstances in which pre

-indictment delaymay constitute a denial of due process. See,eg., 

### Statev. Curtis (1990)~ 241Mont. 288, 787 P.2d 306. Because past decisions of this Court and other courts have left some uncertainty as to the appropriate standard to be applied,we take this opportunity to clarify Montana law on this issue. 6The seminal case in this area of the law was 

### UnitedStates

### v. Marioii (1971), 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468. The Supreme Court noted that the primary guarantee against bringing overly stale criminal charges 

### is the applicable statute of limitations. 404 U.S. at 322

-24, 92 S.Ct. at 464

-65, 30 L.Ed.2d at 479

-81. Because the defendants in Marion only made a claim of potential prejudice from the delay in prosecution, rather than actual prejudice, the Court did not need to decide the case under a due process analysis. However, anticipating that the defendants could raise a claim of actual prejudice upon reinstatement of the criminal proceedings, the Court discussed the application of the due process clause: Thus, theGovernment concedes that the Due ProcessClause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal 

### of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay

-caused detriment to a defendant's case should abort a criminalprosecution. To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgmentbased on the circumstances of each case. [Citationsomitted.] 404 U.S. at 324

-25, 92 S.Ct. at 465

-66, 30 L.Ed.2d at 481. In the years following theMarioii decision, federal and state courts, including this Court, had occasion to review due process

7claims under the 

### Manoil standard. However, as noted by the Ninth circuit in 

### UiiitedStates

### v.Mays (1977), 549 F.2d 670, 675: Since the

### Marion decision, there has been a good deal of confusion as to whether the two elements delineated in the opinion

--actual (or substantial) prejudice, and intentional delay by the government for an improper purpose--are to be applied in a conjunctive or disjunctivemanner. Indeed,aswith 

### the other circuits, this Circuit has not been entirely consistent in its articulation 

### of the proper standard. See 549 F.2d at 676

-77 (discussing arguments in favor of both interpretations.) A similar uncertainty was expressed in certainMontana cases, In

### Statev.Burtcliett (1974), 165 Mont. 280, 283, 530 P.2d 471, 473,

### cert. 

### denied, 420 U.S. 974, 95 S.Ct. 1397, 43 L.Ed.2d 654 (1975), a case relied upon by Krinitt, this Court determined that pre-indictment delay can result in a denial of due process where there is "either actual prejudice to the conduct 

### of the defense, or 

# . . . the State intentionally delayed to gain some tactical advantage over [the defendant] or to harass him." 

### In Statev. Bartiies (1988), 234 Mont. 522, 525, 764 P.2d 1271, 1274,we described the relevant inquiry as

"whether the pre-indictment delay caused substantial prejudice to the defendant's right to a fair trial and whether the delay was used as an intentional device to gain a tactical advantage over the accused.'I In

### Statev. Gollz (1982), 197 Mont. 361, 642 P.2d 1079, and Statev. 

### Curtis (1990), 241Mont. 288, 787 P.2d 306, the defendantshad proven neither intentional delay designed to gain a tactical advantage,

8nor actual prejudice resulting from the delay; this Court declined to decide the question of whether either element alone or both elements together were required to support a due process claim. In 

### UititedStatesv.Lovasco (1977), 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752, the United States Supreme Court provided further guidance in evaluating these due process claims. The Court explained: 

### Marion makes clear that proof of prejudice is generally a necessary but not sufficient element of a due process claim,and that thedueprocess inquirymust consider the reasons for the delay as well as the prejudice to the accused. 431 U.S. at 790, 97 S.Ct. at 2048

-49, 52 L.Ed.2d at 759. Thus, in considering a defendant's claim that pre-indictment delay violated his due process rights, the court must first determine whether the defendant suffered actual, substantial prejudice. 

### See UniledStatesv. va1eiitiite (9thCir. 1986), 783 F.2d 1413, 1416

-17. If the defendant does not demonstrate actual prejudice resulting from the delay, no due process violation will be found. Accordingly, the language of 

### State v. Birrlchett, cited above, which implied that a dueprocess violation couldbe foundbased solely on the state's intentional delay,without a showing of prejudice, is incorrect. Upon a showing that thedefendant suffered actual, substantial prejudice from the delay, the court must then weigh the justification for the delay, aswell as the absolute length of the delay, to determine if due process has been denied. 

### SeeLovasco, 431

9U.S. at 790, 97 S.Ct. at 2048

-49, 52 L.Ed.2d at 759;

### Mays, 549 F.2d at 677-78 (where defendanthas established actual prejudice due to unusually lengthy pre

-indictment delay, it then becomes incumbent upon the government to provide the court with its reasons for the delay; negligent conduct will be weighted less heavily than deliberate delays)

# . Seealso UnitedStates

### v. Morait (9th Cir. 1985)

### , 759 F.2d 777, 780-83, 

### cert. denied, 474 u.S. 1102, 106 s.Ct. 885, 88 L.Ed.2d 920 (1986). Ultimately, in making a determination on this type of due process claim, the court should be guided by the principle enunciated in 

### UrtitedStatesv.Lovasco, 431U.S. at 790, 97S.Ct. at 2049, 52 L.Ed.2d at 759: We are to determine only whether the action complained of

--here, compelling respondent to stand trial after the Government delayed indictment to investigate further

--violates those "fundamental conceptions of justice which lie at the base of our civil and political institutions,"andwhich define Ifthecommunity's sense

### of fair play and decency." [Citationsomitted.] Applying this standard to the present case,we conclude that Krinitt has not demonstrated that his due process rights were violated. As an initial consideration, we note that the prosecution was commenced within the applicable five year statute of limitations. Section 45-1-205(2)(a), MCA. We look next to the issue of whether the defendant suffered actual, substantial prejudice from the two year delay in prosecution. Krinitt contends he was prejudiced by the delay because in the interim he and Mrs. Krinitt were divorced, and he

10could no longer rely on 5 26-1-802, MCA (spousal privilege), and g 46-16-212, MCA (competency of spouses), to prevent her from testifying against him. We disagree. The fact that he was unable to prevent a witness from coming into court and testifying about the theft does not constitute "prejudice" to the defendant. Krinitt was not hindered in raising any legitimate defense to the commission of the crime. Krinitt next contends he was prejudiced because, in response to thedemand letter fromWestern Federal Savings,he sent a letter to thebank's attorney indicating thathewished to repay themoney and requesting a payment schedule be setup. The jurywas informed of Krinitt's letter. Krinitt argues he would not have agreed to repay themoney if he had knownhe was facing criminal charges. We do not agree, however, that Krinitt's offer caused substantial prejudice sufficient to warrant a dismissal of the prosecution. First, we note that Krinitt's offer of repaymentwas made in a letter dated September 7, 1988, only six months after the prosecutor received the request forprosecution. The delay at that pointwas notvery great, and any delay after that time did not add to the effect of the admission. Krinitt's claim that he would not have agreed to repay the money if he had known he was facing criminal charges is speculative. IfKrinitt knew in September 1988 that he faced criminal charges, he may well have found it in his best interest to admit owing the money to the bank. Further, the State did not introduce the correspondence with the bank into evidence aspart of its case in chief. The letterswere introduced

11on cross-examination after Krinitt took the stand and claimed that until the information was filed he had no knowledge that he was being accused of forging Mrs. Krinitt's signature on the check. Finally, Krinitt contends his credibility was impeached because at trial, before the correspondence with the bank was admitted into evidence, he testified and denied knowing about the accusation of forgery or correspondingwithWestern Federal Savings in the matter. We are without sympathy for this latter claim. A criminal defendant isnot "prejudiced"by having the truth revealed after he has testified falsely. Because Krinitt has not shown that he suffered actual, substantial prejudice as a result of the delay in prosecution, he cannot prevail on his due process claim. We therefore need not review the reasons given by the government for the delay. We conclude that the delay in prosecution did not violate Krinitt's right to due process. I1 Was sufficient evidence presented to prove that appellant intended to deprive the owner, his spouse, of the property? The offense of theft,where committed as in the instant case, includes the element of intent or purpose: (1) A person commits the offense of theft when he purposely or knowingly obtains or exerts unauthorized control over property of the owner and:

(a) has the purpose of depriving the owner of the property:

(b) purposely or knowingly uses, conceals, or abandons the property in such manner as to deprive the owner of the property: or

12(c) uses, conceals, or abandons the property knowing such use, concealment, or abandonment probably will deprive the owner of the property. Section 45-6-301(1), MCA. Krinitt contends theStatedid notpresent sufficientevidence to prove that he had the requisite intent. We disagree. The evidence showed thatKrinitt knewhewas not authorized to spend his wife's dividend check. When the check was mistakenly sent to the mailbox he shared with Mrs. Krinitt, he took the check without informing her. He forged her signature 

### on the check, and without her consent, deposited the check in his own individual account. Mrs. Krinitt had no knowledge of this account, and no authority over it. Krinitt immediately began spending the money, including writing one check for $3998 the day after making the deposit. When questioned by Mrs. Krinitt about thedividend check, he at first denied knowing what had happened to it. Only after his wife questioned him repeatedly did he admit that he had taken the check. He did not reimburse his wife for the amount of the check. The evidencewas sufficient to prove that Krinitt intended to deprive his wife of the $8015. I11 Was the money taken "property normally accessible to both spousesf1 under 5 45-6-303(2), MCA? Section 45-6-303(2), MCA, provides: 

### It is no defense that the theft was from the offender's spouse, except that misappropriation of household and personal effectsorotherproperty normally accessible to both spouses 

### is theft only if 

### it occurs after theparties have ceased living together.

13Krinitt contends that he cannot be convicted of the crime of theft because he and Mrs. Krinitt were living in the same home and the money he took was ltpropertynormally accessible to both spouses.11This contention 

### is incorrect. Thedividend checksbelonged toMrs. Krinitt. The checks were mailed directly to her attorney's office. Since 1985 Krinitt had

no access to thismoney, and Mrs. Krinitt's attorney would not have givenhim any of themoney without authorization fromMrs. Xrinitt. Krinitt knew he was not authorized to spend this money. That this money was not "normally accessible" to Krinitt was clearly evidenced by the fact that he had to forge his wife's signature on the check in order to negotiate it. Although in this instance the check was mistakenly sent to a mailbox which was accessible toboth Mr. and Mrs. Krinitt, the dividend income was not "property normally accessible to both spouses.1t We affirm the judgment of the District Court.

Ju tice

I We concur 

# /

Justices
14December 12,1991 CERTIFICATEOFSERVICE Ihereby certify thatthefollowingorderwas sentby United States mail,prepaid, tothe following named: LarryJent Williams,Jent&Dockins 506E.Babcock Bozeman,MT 59715 Hon. MarcRacicot, Attorney General KathySeeley,Asst. Atty. General JusticeBldg. Helena, MT 59620 A. MichaelSalvagni,CountyAttorney Jennifer Bordy,Deputy 615S.16th Bozeman,MT 59715 EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA