NO. 92-131 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

OK CHA MASON, 

Plaintiff and Appellant, 

-vsJON W. DITZEL and EMPIRE 

SAND AND GRAVEL CO., INC., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Maurice R. 

presiding. 

Colberg, Jr., Judge 

COUNSEL OF RECORD: 

For Appellant: 

Thomas J. Lynaugh, Lynaugh, Fitzgerald, Eiselein & 

Eakin, Billings, Montana 

For Respondents: 

James L. Jones, Dorsey & Whitney, Billings, Montana 

.i, 

Submitted on Briefs: September 24, 1992 

Decided: November 24, 1992 
Justice John Conway Harrison delivered the Opinion of the Court. 

Ok Cha Mason appeals the judgment entered by the Thirteenth 

Judicial District Court, Yellowstone County, on a unanimous jury 

verdict in favor of respondents, Jon W. Ditzel and his employer, 

Empire Sand and Gravel Company, Inc. Mason brought the action to 

recover damages resulting from an automobile accident in Billings 

on September 23, 1987. Respondents denied responsibility for the 

accident, and after a seven-day trial in 1991the jury decided that 

the driver, Ditzel, had not been negligent. We affirm. 

Mason raises the following issues on appeal: 

1. Did the District Court err in allowing Dr. Joseph Rich to 

testify as a defense witness? 

2. Did the District Court err in denying Mason's motion for 

mistrial after an officer of Empire Sand and Gravel Company 

spoke with jurors during the trial? 

Ok Cha Mason (Mason) was born in Korea in 1946. She met her 

husband, Ted Mason, while he was an air traffic control specialist 

stationed in Seoul. They were married in Missoula, Montana, in 

1973. From 1985, when the couple moved to Billings, until just 

before the accident, Mason worked as a part time bakery clerk. She 

was not fluent in English and was tested in 1991 at a third-grade 

reading level. 

At approximately 9:00 on the morning of September 23, 1987, 

Mason was driving her Dodge Colt sedan south on Main Street, en 

route from her home in Billings Heights to a dental appointment in 

Billings. Ditzel was driving his employer's Kenworth tractor2 
trailer truck, or "semi," southbound in an adjacent lane. It was 

partly loaded, with an estimated gross vehicle weight of 35,000 to 

40,000 pounds. Both vehicles were moving at approximately 35 miles 

per hour. 

Main Street has three southbound lanes. Conflicting evidence 

was presented as to whether Mason was driving in the curb lane or 

the center lane at the time of the accident, but in any case, 

Ditzel’s truck was at the left of Mason's car just before the 

collision. The truck and car collided, causing the car to skid 

across the center and far left southbound lanes and hit the median. 

It then rolled over onto its top. Mason was taken by ambulance to 

an emergency room, treated for injuries to her left hand and 

released the same day. 

Police testimony and photographs of the vehicles indicate that 

Mason's car was damaged only on the left side and top. The truck 

sustained minor damage to the left front bumper. Although Mason 

testified that the truck hit her car from behind, its rear bumper, 

tail lights, and trunk apparently were undamaged, though scratches 

appeared on the left rear quarter panel. Mason's expert witness 

attributed these scratches to the initial contact between truck and 

car, but the officer who wrote the accident report suggested that 

they represented damage done when the car rolled over onto the 

median. 

Mason told a police officer, immediately after the accident, 

that she was driving in the curb lane when Ditzel's truck hit her 

car. At the trial, however, she testified that she had been in the 

3 
center lane, having changed lanes in front of McDonald's, nearly 

two blocks north of the accident scene. Ditzel told officers at 

the scene that & had been driving in the center lane; this was 

corroborated by the driver of a wrecker who had been travelling in 

the left or inside lane, passing Ditzel's truck just before it 

collided with Mason's car. When the officers arrived, shortly 

after the accident, Ditzel's truck was in the center lane at the 

end of parallel skid marks approximately 100 feet long. Mason's 

car was lying on its top on the median to the left of the truck. 

Both drivers asserted that the other driver had caused the 

accident. Mason claimed that her car had first been hit from the 

rear, then pushed in front of the truck and hit again in the left 

side. Her theory, confirmed in part by a statement Ditzel made to 

an insurance adjuster six months after the accident, was that 

Ditzel had been changing lanes from left to right when his truck 

rear-ended her car. 

Ditzel claimed at the trial that Mason pulled in front of him, 

apparently in the process of changing from the curb lane to the 

center lane, and that he never saw her car until it was on the left 

side of his truck. In his 1988 statement to the insurance 

adjuster, however, he said: 

Well, see I was changing lanes. I had my turn signal on 

and I was gonna change lanes and apparently she didn't 

see that or something. I don't know. . . . I was 

changing to the righthand lane. 

The point of contention at the trial, then, was whether Ditzel 

was changing lanes from left to right and in doing so ran into the 

rear of Mason's car, or whether Mason was changing from the curb 

4 
lane to the center lane and in doing so hit the right front bumper 

of Ditzel's truck. 

Testimony on this point is conflicting. At the trial, Mason 

said that she had moved from the curb lane to the center lane to 

avoid traffic going into McDonald's; then she saw the truck behind 

her: 

Already he's coming, but I stay my lane. I keep going my 

center lane and then I feel . . . just boom. . . . Then 

I turn left and just spin. . . . I spin but he's not 

stop. He just come and hit me: then I roll over upside 

down. 

In the telephone interview recorded by the insurance adjuster in 

April 1988, Ditzel stated that he hit Mason's car from behind: 

Interviewer: And she struck your vehicle? 

Ditzel: No. I hit her from behind. 

Interviewer: What part of her vehicle was hit? 

Ditzel: Well I . . . I don't . . . I guess right in the 

back end and she was kind of at an angle. It spun her 

sideways. . . . And I hit her in the back. It spun her 

sideways and then she went sideways in front of the 

truck. I was pushing her down the road. Then I realized 

there was something in front of me, so I hit the brakes 

on the truck cuz I couldn't see her car cuz, you know, it 

was hidden down under my hood. 

At the trial, however, Ditzel stated that he actually didn't know 

how the accident had happened and that much of what he had told the 

insurance adjuster was "speculation." He explained: 

I said I was going to change lanes. I didn't say I did 

change lanes. . . . I don't know what happened. I don't 

know where this lady came from, where she pulled out 

from, if she pulled out. . . . And from behind, I didn't 

mean I hit her. . . . I thought she came out at an angle 

and I thought I might have caught her in the back. 

Denman Lee, Mason's accident reconstruction expert, testified 

5 
at the trial that he believed the accident occurred because Ditzel 

was changing lanes and ran into the "back left rear bumper" of 

Mason's car. Lee explained that Mason's car had a "shock absorber" 

built into the rear bumper, which U1flexedl' when the truck hit it 

and caused the car to spring ahead of the truck at an angle. The 

scratches on the left rear quarter panel, he said, occurred when 

the bumper cover moved forward as the "shock absorber" flexed. Lee 

had not actually examined Mason's car, but he had shown pictures of 

it to the Dodge dealer who provided a parts diagram of the rear 

bumper. 

Harry Towns, a mechanical engineer who testified as an expert 

witness for the defense, challenged Lee's explanation. He pointed 

out that if the truck had hit the left rear end or bumper of 

Mason's car, the car would have moved to the right, toward the 

curb, and not to the left in front of the truck. Towns also said 

that if the truck had hit the rear end of the car, the rear bumper 

would have been damaged. 

Towns' theory was that Mason caused the accident by changing 

lanes: 

Mrs. Mason was passing Mr. Ditzel on Mr. Ditzel's righthand side. She overtook and was passing the truck. She 

pulled in front of the truck and attempted a lane change, 

or started a lane change too soon. . . . The car actually 

ran into the truck. Her left rear door contacted the 

right side of the right front bumper of the truck. . . . 

That pushed her car because her wheels were steered to 

the left. . . . Her car went into a slight skid to the 

left. 

Mason's car had sustained a deep scratch on the left rear door, 

which was consistent with Towns' theory. Towns also pointed out 

6 
that Lee had obtained a parts diagram for the wrong model of Dodge, 

and that the particular model that Mason had been driving did not 

have a "shock absorber" or "impact absorber" in its rear bumper. 

Thus, Towns testified, the scratches on the left rear quarter panel 

could not have been caused by movement of the rear bumper cover 

because the 1986 Dodge Colt did not have that type of bumper. 

Towns testified on the sixth day of the trial. On the seventh 

day, after final arguments, the jury received its instructions and 

retired for two hours of deliberation. Its verdict was reported in 

the following form: 

we, the jury in the above-entitled case, find the 

following special verdict on the issues submitted to us: 

Question 1: Was the Defendant Jon W. Ditzel negligent? 

Answer: No. 

Because the jury found that Ditzel was not negligent, it did not 

answer any of the questions about damages. 

I 

Did the District Court err in allowing Dr. Joseph Rich to 

testify as a defense witness? 

Mason first questions the propriety of the District Court's 

denial of her motion to exclude the testimony of Dr. Joseph Rich, 

a psychiatrist. Although Dr. Rich's testimony ostensibly concerned 

damages, it was also relevant to Mason's credibility as a witness 

and will be considered here in that context. 

Trial had originally been set for October 28, 1991, and the 

parties had agreed that the respondents would disclose the identity 

of their expert witnesses and the subject matter of their expected 

7 
testimony at least nine weeks in advance of that date, or before 

August 26, 1991. On October 7, 1991, the respondents notified 

Mason for the first time that they intended to use Dr. Joseph Rich 

as an expert witness. The notice included a three-page report from 

Dr. Rich, summarizing his analysis of Mason's medical history and 

indicating a diagnosis of "somatoform pain disorder." Mason 

immediately moved to exclude Dr. Rich's testimony on the grounds 

that she had not been given adequate notice in view of the fact 

that it offered a new theory of the case and went far beyond a 

rebuttal of Mason's own psychiatric witness. 

The respondents countered by asserting that Mason had not 

responded adequately to their interrogatories in December 1990 and 

that they were forced to discover most of her medical records 

themselves. As a result, the respondents argued, they had not 

known until September 1991 that psychiatric testimony would be 

important in determining damages. Mason pointed out in her reply, 

however, that she had identified her only psychiatric medical 

provider, Dr. Duncan Burford, in December 1990, and that the 

respondents had offered no reason for failing to depose Dr. Burford 

before September 1991. Mason had consulted Dr. Burford after the 

accident because she was having nightmares and was afraid to drive. 

Dr. Burford diagnosed post-traumatic stress syndrome. 

On October 18, 1991, Judge Maurice R. Colberg, Jr. postponed 

the trial until November 18, 1991. He denied Mason's motion to 

exclude Dr. Rich's testimony, reserving to Mason any objections her 

counsel might make to the content of that testimony during the 

8 
trial and indicating that the court would consider further motions 

for a continuance if Mason needed more time to prepare for trial. 

Judge Colberg explained in his Order that Mason's failure to make 

complete disclosure of past medical providers had "started a 

sequence of late discovery of medical information," which "to some 

degree led to the late disclosure of Dr. Rich as a proposed expert 

witness by defendants." 

Questions of admissibility of evidence are left to the sound 

discretion of the trial court, subject to review only in the case 

of manifest abuse. Britton v. Farmers Insurance Group (1986), 221 

Mont. 67, 86, 721 P.2d 303, 315. Further, the testimony and 

opinions of qualified experts are admissible whenever they will 

assist the jury in understanding evidence that is beyond the jury's 

experience. Wacker v. Park Rural Electric Cooperative, Inc. 

(1989), 239 Mont. 500, 783 P.2d 360; Rule 702, M.R.Evid. Here, Dr. 

Rich, as Medical Director of Psychiatric Services at Billings 

Deaconess Hospital, was qualified as an expert for purposes of 

evaluating the post-traumatic stress disorder of which Mason 

complained. Because the trial was continued, Mason had ample time 

to depose Dr. Rich and prepare for cross-examination. We hold that 

the District Court did not abuse its discretion in denying Mason's 

motion to exclude Dr. Rich's testimony. 

During the trial, Judge Colberg denied Mason's motion to limit 

Dr. Rich's testimony and overruled her objection to admission of 

her medical records. Although these actions did not rise to the 

level of error required for reversal, because "a reversal cannot be 

9 
predicated upon an error in admission of evidence, where the 

evidence in question was not of such character to have affected the 

result in the case," we feel that the circumstances require 

comment. Lauman v. Lee (1981), 192 Mont. 84, 90, 626 P.2d 830, 

834. 

Mason's Motion in Limine concerned her scores on a Minnesota 

Multiphasic Personality Inventory (MMPI) administered by Richard 

Agosto, a clinical psychologist hired by Mason. Dr. Agosto had 

interviewed Mason and reviewed her medical records in October 1991. 

On November 7 and 8 he administered an MMPI, aided by an assistant 

who read the 566 questions aloud to Mason. At the trial, Dr. 

Agosto testified that his primary diagnosis was post-traumatic 

stress disorder and that he believed that Mason was still suffering 

from this disorder. 

On cross-examination, Dr. Agosto interpreted Mason's MMPI 

scores, indicating that Mason had scored at or above the 95th 

percentile (that is, higher than 95 percent of the total 

population) on six scales, labelled as follows: 

Hypochondriasis 

Depression 

Hysteria 

Schizophrenia 

Paranoia 

Potential Drug or Alcohol Dependency 

Dr. Agosto explained on redirect examination that these terms were 

developed in 1940 and no longer mean what they meant then (e.g., 

"schizophrenia" in the MMPI reflects "mental confusion and perhaps 

memory difficulties, concentration problems 'I but does not mean that 

the person taking the test is schizophrenic). He concluded that 

10 
the MMPI results were consistent with a diagnosis of post-traumatic 

stress disorder and said that he had found no basis in Masons' 

record as a whole to indicate somatoform pain disorder. 

After Dr. Agosto testified, the respondents notified Mason 

that their psychiatrist, Dr. Rich, would testify on the following 

day to the effect that the results of the MMPI were consistent with 

and supported his opinions concerning Mason. Mason immediately 

filed her Motion in Limine, seeking an order that would prevent Dr. 

Rich from discussing the MMPI results in his testimony on November 

26. She argued that she had not had adequate notice and would be 

unable to prepare for cross-examination. Judge Colberg denied the 

motion, based on his understanding that "the ultimate conclusion 

Dr. Rich is making in this case is the same as apparently he made 

in a deposition and apparently he made in a [pre-trial] report, 

although I don't have that information furnished." 

In his pretrial report, however, Dr. Rich stated, for example, 

"Mrs. Mason appears to have a tendency towards exaggeration," and 

that she "has always experienced significant emotional problems." 

In contrast, he testified on the sixth day of the trial that his 

computer analysis of her MMPI responses showed that Mason "has 

significant hysterical features;" is l'immature, egocentric, and 

dependent;" and is "likely to have a long history of developing 

functional somatic complaints during periods of stress;" that "mild 

paranoid features are likely [with] potential for . . . projecting 

blame and hostility onto others;" and that "substance abuse may be 

a problem.1' 

11 
Although Dr. Rich stated that the MMPI results were consistent 

with the opinion he had already reached as to Mason's psychological 

condition, that is, that she had a long-term "somatization 

disorder" rather than post-traumatic stress disorder, his testimony 

expanded the definitions of Mason's scale scores and made them 

directly relevant, not to any injuries that might have been caused 

by the accident, but to her credibility as a witness. Thus, there 

is merit in Mason's argument, in her brief supporting her Motion in 

Limine, that new conclusions and opinions would emerge from Dr. 

Rich's testimony regarding her MMPI scores. 

The rest of Dr. Rich's testimony was based on his review of 

Mason's medical and dental records, dating back to 1977, and the 

depositions of several of her doctors, including Dr. Burford, the 

psychiatrist. Despite Mason's objections, Judge Colberg admitted 

all of these records and depositions, representing approximately 

thirty-three medical or dental providers, as evidence. Dr. Rich 

read selections from these records to the jury during direct 

examination, emphasizing occasions on which the physician either 

had been unable to resolve her complaint or had prescribed 

tranquilizers and pain medication. He diagnosed l'somatization 

disorder" and suggested that with patients of this type, "once 

litigation has begun, it's extremely difficult to get really good, 

hard objective data out of a patient. . . . [IIt's a matter of 

saving face." 

Mason had objected before trial to admission of her medical 

records through the videotaped deposition testimony of Dr. Maurice 

12 
Smith, a neurologist. In her brief in support of her Motion to 

Exclude Medical Records, she argued that Dr. Smith's reading of the 

records amounted to testimony lacking foundation and calling for 

hearsay and would expose the jury to irrelevant or prejudicial 

evidence. The court denied this motion on the grounds that Dr. 

Smith had reached a conclusion based on the records, and overruled 

Mason's objection at trial to Dr. Rich's reading of the same 

records. 

In the past we have upheld admission of medical records when 

the testifying physician was also the attending physician who had 

been responsible for the patient's care. Klaus v. Hillberry 

(1971) I 157 Mont. 277, 485 P.2d 54; Matter of G.S. (1985), 215 

Mont. 384, 698 P.2d 406; Garza v. Peppard (1986), 222 Mont. 244, 

722 P.2d 610; Palmer by Diacon v. Farmers Ins. Exchange (1988), 233 

Mont. 515, 761 P.2d 401. In -I Garza we found that an attending 

physician's testimony based on another doctor's records was within 

the hearsay exception in Rule 803(4), M.R.Evid., which provides 

that statements made for purposes of medical diagnosis are excluded 

from the hearsay rule. Such testimony is also admissible under 

Rule 703, M.R.Evid., which allows an expert to testify based on 

inadmissible data if the data are of a type reasonably relied on by 

experts in that particular field in forming opinions on the 

subject. 

Here, Dr. Rich was not Mason's attending physician and in fact 

had never met her, much less examined or treated her. His reading 

of her medical records therefore was not within the hearsay 

13 
exception in Rule 803(4), M.R.Evid. Dr. Smith also was not Mason's 

attending physician, though he did examine her for approximately 

two hours. In both cases, however, the records were admissible 

under Rule 703, because Dr. Rich and Dr. Smith were experts who had 

followed the practice of medical experts in basing their opinions 

on medical records. Matter of G.S., 698 P.2d at 409. We hold, 

therefore, that the District Court did not abuse its discretion in 

allowing both doctors to read Mason's medical records aloud. 

We will not disturb a jury verdict when substantial, credible 

evidence exists to support that verdict. Palmer, 761 P.2d at 404; 

Silvis v. Hobbs (1992), 251 Mont. 407, 824 P.2d 1013. While the 

disputed testimony tended to confuse the issues and may have misled 

the jury, the police testimony and photographs alone provide 

sufficient evidence to support the jury's verdict. "In making our 

determination on sufficiency of the evidence, we are constrained to 

view the evidence in a light most favorable to the prevailing 

party." Gass v. Hilson (1990), 240 Mont. 459, 462, 784 P.2d 931, 

933. 

Further, where the record presents conflicting evidence, as it 

does here, and the jury resolves that conflict, this Court is 

precluded from disturbing the verdict. Lauman, 626 P.2d at 833. 

Here, the jury resolved conflicts between Mason's and Ditzel's 

versions of the accident, and between the parties' two accident 

reconstruction experts, in Ditzel's favor. Viewed in a light most 

favorable to the prevailing party, the evidence clearly supports 

that resolution and the jury's verdict. See Whiting v. State 

14 
(1991), 248 Mont. 207, 213, 810 P.2d 1177, 1181 ("The credibility 

and weight given to conflicting evidence is within the jury's 

province."). 

II 

Did the District Court err in denying Mason's motion for 

mistrial after an officer of Empire Sand and Gravel Company 

spoke with jurors during the trial? 

At the noon recess on November 22, 1991, the fifth day of the 

trial, Mason observed Sandra Reiter, secretary-treasurer and one of 

the owners of respondent Empire Sand and Gravel Company, Inc., 

talking with three jurors in the hall near the elevators. She 

heard Reiter say something like, "Isn't this incredible," to which 

a juror responded "yesl' and laughed. Counsel met with Judge 

Colberg in chambers, and Mason's attorney moved for a mistrial. 

Still in chambers, without the lawyers, Judge Colberg questioned 

Mason, Reiter, and two of the three jurors involved. 

Reiter had been sitting at the counsel table throughout the 

trial and had been introduced to the jury during voir dire. She 

told Judge Colberg that the exchange in the hall had concerned a 

suspected rapist thought to be roaming the downtown Billings area. 

The three jurors had been discussing possible safety precautions in 

getting to the parking garage, Reiter said, and she had commented, 

"Yes, it's kind of incredible, isn't it? I just learned about it 

last night." She also told the judge that earlier in the trial she 

may have spoken to a juror on the way to the garage, responding to 

a comment about the weather. 

Reiter identified two of the three jurors involved in the 

15 
conversation about the rapist: Joanne Sheridan, who was to be the 

jury foreman, and Tana Hansen. Judge Colberg interviewed Sheridan 

in chambers. She confirmed Reiter's impression of the noon recess 

conversation and added that "If one of us talked to her, it was a 

case of we were talking and she interjected." 

Sheridan had stated in voir dire that she was acquainted with 

Reiter in a work-related context, which may explain why Reiter was 

able to identify Sheridan as one of the jurors involved in the 

conversation. When Judge Colberg questioned Reiter as to the 

identity of the three jurors, she said, "Joanne Sheridan and I 

believe it was Mrs. Hansen and I'm not sure who the rest of them 

[were] . " Judge Colberg interviewed another juror, Kay Burns, 

tentatively identified by Joanne Sheridan as having been in the 

group near the elevator. Burns remembered the conversation about 

the rapist but did not recall any exchange with Reiter. 

In chambers with counsel, Judge Colberg summarized his 

interviews with Sheridan and Burns. Mason's attorney, Michael 

Eiselein, then moved for a mistrial on the grounds that the 

conversation in question "may have tended to establish some 

rapport" between Reiter and the women jurors, "who were discussing 

a common concern of women." Judge Colberg denied the motion, based 

on his perception that any conversation that may have occurred 

between Reiter and the jurors consisted of a "general comment," 

unrelated to the trial, and on his belief that the incident had not 

prejudiced the jurors. 

Mason relies on Putro v. Baker (1966), 147 Mont. 139, 410 P.2d 

16 
717, and State v. Eagan (1978), 178 Mont. 67, 582 P.2d 1195, for 

the proposition that any misconduct tending to injure a party is 

presumed prejudicial, though the presumption may be rebutted. In 

those cases we recognized a fundamental right to an unprejudiced 

jury and emphasized the importance of guarding jury trials from 

improper influences. We also said, however, that it is for the 

trial court to decide in each case whether prejudicial misconduct 

has occurred. 

Here, the fact that a juror was acquainted with one of the 

parties was revealed during voir dire, but Mason did not challenge 

that juror. When the same juror was later reported to have 

conversed with the party in question, the court immediately 

conducted a thorough investigation of the incident. Based on the 

testimony of the juror and the party, it found no evidence that the 

juror and the party discussed the case and properly denied Mason's 

motion for a mistrial. See State v. Counts (1984), 209 Mont. 242, 

248, 679 P.2d 1245, 1248 (any presumption of prejudice arising from 

the unusual circumstance of a juror inviting a principal witness 

for lunch was overcome by the testimony of the juror and the 

witness prior to submission of the case to the jury): Turner v. 

Louisiana (1964), 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 

(mistrial justified by continuous, intimate association throughout 

the trial, as opposed to a "brief encounter" between jurors and 

witnesses). 

Mason points out that Judge Colberg interviewed only two of 

the three jurors known to have been involved in the exchange with 

17 
Sandra Reiter and argues that the presumption of prejudice created 

by the conversation was not overcome, due to this failure to 

interview the third juror, combined with the possibility of further 

contact between Reiter and juror Sheridan. We find this argument 

unpersuasive. The record does not indicate why Judge Colberq did 

not interview the third juror, but it does show that he would have 

done so if asked. After Mason's attorney, Mr. Eiselein, moved for 

a mistrial, the following conversation took place: 

JUDGE COLBERG: okay, you've made your motion for a 

mistrial. And let me ask you this. Is there any request 

that I make further investigation with the jurors -- the 

remaining jurors on this panel in any way related to this 

issue? 

MR. EISELEIN: Your Honor, I'm satisfied with the record 

I've made. 

Mason's suggestion that further contact occurred between Reiter and 

Sheridan is based on Reiter's statement, quoted above, that "Joanne 

Sheridan and I believe it was Mrs. Hansen. . . .'I Mason concedes 

that if this statement does represent further contact, nothing is 

known about any conversation that took place. No evidence was 

offered to show that Reiter and Sheridan discussed the case or the 

trial. 

We have held that when the district court has considered a 

motion for mistrial, this Court will not lightly disturb its 

ruling. "To overthrow it this Court must be shown by evidence that 

is clear, convincing, and practically free from doubt, of the error 

of the trial court's ruling." Schmoyer v. Bourdeau (1966)‘ 148 

Mont. 340, 343, 420 P.2d 316, 317-18. No such evidence has been 

produced here, and no prejudice to Mason has been established. The 

18 
appearance of impropriety is not a sufficient basis for reversal. 

Counts, 679 P.2d at 1249. 

AFFIRMED. 

We concur: /-=s--- 

19 
November 24, 1992 

CERTIFICATE OF SERVICE 

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

named: 

Thomas J. Lynaugh 

Lynaugh, Fitzgerald, Eiselein & Eakin 

P.O. Box 1729 

Billings, MT 59103-1729 

James L. Jones 

Dorsey & Whitney 

P.O. Box 7188 

Billings, MT 59103 

ED SMITH 

CLERK OF THE SUPREME COURT