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 Judicial District, 

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, 1991 
Justice 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 evidence presentedto prove that appellant 

intended to deprive the owner, his spouse, of the property? 

3. Was the money taken "property normally accessible to both 

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 she was 22 years old, approximately one year before 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 lost their home. Mrs. Krinitt 

felt that her husband was unable to control his financial situation 

and spending habits, and took steps to separate her finances from 

his. After the bankruptcy, she did not enter into joint financial 

2 
obligations with Krinitt. She did not have a joint bank account 

with him. After she was discharged from bankruptcy, she reaffirmed 

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 quarterly dividend 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. In October 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, 

3 
encumbering, 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 the month. 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. 

4 
Mrs. 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 the Gallatin County Attorney's Office. However, the 

county attorney's office decided not to file charges at that time. 

Apparently the main reason the county attorney did not proceed 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. 

In August 1988, Western Federal Savings sent Krinitt a demand 

letter to recover the $8015 he had misappropriated. In response, 

5 
Krinitt agreed to repay the money 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 three years upon 

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 charges against him violated his right to due process. We 

disagree. 

This Court has previously considered the circumstances in 

which pre-indictment delay may constitute a denial of due process. 

See, eg., Statev. Curtis (1990)~ 241 Mont. 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. 

6 
The seminal case in this area of the law was United States 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, the Government concedes that the Due Process Clause 

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 criminal prosecution. To 

accommodate the sound administration of justice to the 

rights of the defendant to a fair trial will necessarily 

involve a delicate judgment based on the circumstances of 

each case. [Citations omitted.] 

404 U.S. at 324-25, 92 S.Ct. at 465-66, 30 L.Ed.2d at 481. 

In the years following the Marioii decision, federal and state 

courts, including this Court, had occasion to review due process 

7 
claims under the Manoil standard. However, as noted by the Ninth 

circuit in Uiiited States 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 

disjunctive manner. Indeed, as with 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 certain Montana 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 State v. 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), 241 Mont. 288, 787 P.2d 306, the defendants had proven 

neither intentional delay designed to gain a tactical advantage, 

8 
nor 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 the due process inquiry must 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 Uniled States v. va1eiitiite (9th Cir. 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 due process violation could be found based solely on 

the state's intentional delay, without a showing of prejudice, is 

incorrect. 

Upon a showing that the defendant suffered actual, substantial 

prejudice from the delay, the court must then weigh the 

justification for the delay, as well as the absolute length of the 

delay, to determine if due process has been denied. SeeLovasco, 431 

9 
U.S. at 790, 97 S.Ct. at 2048-49, 52 L.Ed.2d at 759; Mays, 549 F.2d 

at 677-78 (where defendant has 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) . See also United States 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, 431 U.S. at 790, 97 S.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," and which define Ifthe community's sense of 

fair play and decency." [Citations omitted.] 

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 

10 
could 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 the demand letter from Western Federal Savings, he sent a letter 

to the bank's attorney indicating that he wished to repay the money 

and requesting a payment schedule be set up. The jury was informed 

of Krinitt's letter. Krinitt argues he would not have agreed to 

repay the money if he had known he 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 repayment was made in 

a letter dated September 7, 1988, only six months after the 

prosecutor received the request for prosecution. The delay at that 

point was not very 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. If Krinitt 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 as part of its case in chief. The letters were introduced 

11 
on 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 corresponding with Western Federal Savings 

in the matter. We are without sympathy for this latter claim. A 

criminal defendant is not "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 the State did not present sufficient evidence 

to prove that he had the requisite intent. We disagree. 

The evidence showed that Krinitt knew he was 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 the dividend 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 evidence was 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 effects or other property normally accessible to 

both spouses is theft only if it occurs after the parties 

have ceased living together. 

13 
Krinitt 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 ltproperty normally accessible to both 

spouses.11 This contention is incorrect. 

The dividend checks belonged to Mrs. Krinitt. The checks were 

mailed directly to her attorney's office. Since 1985 Krinitt had 

no access to this money, and Mrs. Krinitt's attorney would not have 

given him any of the money without authorization from Mrs. 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 to both 

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 

14 
December 12, 1991 

CERTIFICATE OF SERVICE 

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

named: 

Larry Jent 

Williams, Jent & Dockins 

506 E. Babcock 

Bozeman, MT 59715 

Hon. Marc Racicot, Attorney General 

Kathy Seeley, Asst. Atty. General 

Justice Bldg. 

Helena, MT 59620 

A. Michael Salvagni, County Attorney 

Jennifer Bordy, Deputy 

615 S. 16th 

Bozeman, MT 59715 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA