No. g3’226 and 92-0~~

IN THE SUPREME COURT OF THE ~TPA'PE o* ~1

1994

"‘-'QfaA

STATE OF MONTANA,

Plaintiff and

-vGREGORY WING,

Defendant and

and

STATE OF MONTANA,

Plaintiff and

-vJOHN JACOB LORENZ,

Defendant and

Respondent,

Appellant.

Respondent,

Appellant.

APPEAL FROM: District Court of the Seventh Judicial District,

In and for the County of Richland,

The Honorable Richard G. Phillips, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Katherine M. Irigoin (Lorenz), Habedank, Cumming,

Best & Savage, Sidney, Montana; Richard L. Burns

(Wing), Glendive, Montana; William F. Hooks,

Appellate Public Defender, Helena, Montana (Lorenz

and Wing on appeal)

For Respondent:

Hon. Joseph P. Mazurek, Attorney G","n";;, Cre,yzn:.

coughlin, Assistant Attorney

Montana; Mike Weber, Richland County Atto'rney, Gar;

Ryder, Deputy County Attorney, Sidney, Montana

Filed:

Submitted on Briefs: December 2, 1993

Decided: March 22, 1994
Justice Fred J. Weber delivered the Opinion of the Court.

Gregory Wing (Wing) and John Jacob Lorenz (Lorenz) were

jointly tried by a jury in the Seventh Judicial District, Richland

County. The jury convicted Winq of one count of sexual intercourse

without consent and Lorenz of two counts of sexual intercourse

without consent and one count of sexual intercourse without consent

by accountability. This opinion consolidates the appeals of Wing

and Lorenz from the judgments convicting them of these offenses.

Lorenz also appeals a part of the District Court's Judgment and

Sentence which designates him a dangerous offender for the purpose

of parole eligibility. We affirm in part, reverse in part and

remand.

The questions presented for review by both defendants are:

I . Did the District Court abuse its discretion in restricting

the defendants' evidence of the victim's past sexual conduct?

II. Did the District Court abuse its discretion by allowing

the victim to testify about sexual acts committed by others who

were not defendants in this trial?

In addition, defendant Lorenz presents the following

additional issues for review:

III. Did the District Court abuse its discretion by

restricting defendant Lorenz' cross-examination of the victim?

IV. Did the District Court err in designating defendant

Lorenz a dangerous offender for the purpose of parole eligibility?

On the evening of December 12, 1991, Wing telephoned the

victim, an 18-year-old high school senior, and asked if she wanted

2
to attend a party with him that evening. The party was to be held

for the occasion of Wing's brother's return to Sidney, Montana

after a two-year absence. Although Wing would not tell the victim

where the party was to be held, she nonetheless agreed to accompany

him.

Instead of going directly to the party, Wing took the victim

out of town to a location described as the "Lost Highway" where the

two engaged in consensual sexual intercourse and then returned to

town. Wing then drove to his parents' home to determine whether

his brother had arrived home. The victim waited in the car while

Wing went indoors for a short time. Two other men, Mike and Scott

Sheehan, were also parked outside the Wing home, waiting to pick up

Wing's brother.

Wing took the victim to a house where defendant Lorenz lived

with Mike and Scott Sheehan. The two Sheehans and Gary Wing

arrived at Lorenz' and the Sheehans' house at approximately the

same time as Wing and the victim. Lorenz was already there.

Although most of the others at the party were drinking alcoholic

beverages, the victim testified that she only consumed a few sips

of Lorenz' drink. Other testimony also indicated that she did not

drink much alcohol that evening. The victim was the only woman

present for most of the evening.

Testimony was presented that some of the men played a drinking

game known as "quarters" for approximately thirty minutes. After

a time, Scott and Mike Sheehan and Gary Wing went to buy more beer,

leaving the victim in the house with Wing, Lorenz, and another

3
individual, Donald Buxbaum. Testimony was presented that the four

of them were in the living room and that both Wing and ~orenz

attempted to sexually arouse the victim so that she would engage in

consensual sex with them at that time.

The victim testified that she indicated she did not wish to go

into the bedroom with Lorenz and Wing, but that they had forced her

into the bedroom, one pulling on each of her arms. She testified

that she was crying and told them she did not "want to." According

to the victim, Lorenz pushed her on the bed, despite her

resistance, and then held her arms above her head while Wing pulled

off her sweat pants and underwear. She testified that Wing then

penetrated her vaginally while Lorenz attempted to insert his penis

in her mouth, and that when Wing completed vaginal intercourse, he

held the victim's arms down while Lorenz had vaginal intercourse

without her consent.

About the time Lorenz and Wing finished with the victim, the

other three men returned from their jaunt to buy beer and came into

the bedroom either at or soon after the time Lorenz and Wing left

the room. The victim testified that she struggled with the three

men, still crying, and told them she wanted to go home, but Gary

Wing, Scott Sheehan and Mike Sheehan then performed oral and

vaginal intercourse without her consent.

After the sexual acts, the victim asked Wing to take her home;

Wing refused. Buxbaum, who had not taken part in any of the sexual

acts committed upon the victim, followed her out of the house and

gave her a ride home.
Eight days later, on December 20, 1991, two girls at school

asked the victim if it was true that she had had sex with five guys

at one time. Following that incident and at the urging of two of

her friends, the victim reported the episode to a school counselor.

Later the same day, she gave a detailed statement to Sidney Police

Officer David Schettine (Schettine). Schettine initially

interviewed and took tape-recorded statements from both Wing and

Lorenz.

Wing initially told Schettine that he asked the victim to go

to a party and that nothing happened at the party. He later stated

that the party essentially ended up in the bedroom with the victim

and the other four men, but he denied having sexual intercourse

with her on that day--either consensually or nonconsensually. He

later changed his story again and advised Schettine that he and the

victim had engaged in consensual sex prior to the party and later

at Lorenz' house where the three of them engaged in various acts of

consensual sex. He testified at trial that after the sexual

activity when the victim came out of the bedroom, she smoked a

cigarette and then asked for a ride home. He further testified

that he ignored her and that Lorenz said, "Well, boys, let's have

a big round of applause for [the victim]." He acknowledged lying

to Officer Schettine, claiming to have done so because he had a

girl friend at the time and he did not want her to find out that he

had had sex with someone else.

Lorenz also later changed his initial description of the

events of December 12, 1991. His initial statement was similar to

5
Wing's first recount which denied sexual conduct had occurred.

Lorenz later stated that he and Wing and the victim engaged in

consensual sexual acts. He also testified that the subsequent

sexual acts with the other three men were also consensual. At

trial, he admitted that he lied to officer Schettine on two prior

occasions, as had Wing, but claimed to have lied because he did not

want to discuss the group sex as he thought it might be considered

"an unnatural sex act" and he did not know what his rights were "as

far as sex." He also admitted that he had previously denied on

four separate occasions that he had ever had sex with the victim.

At trial, the victim testified that she had engaged in

consensual sexual activities in the past with both Wing and Lorenz.

Further testimony was introduced by Lorenz that the victim had

engaged in sexual activity on one occasion which involved seven

men, one being Lorenz. The victim also admitted this conduct.

Lorenz and Wing both testified at trial as to numerous sexual acts

engaged in with the victim while others were present and which had

occurred prior to the December 12, 1991 party at Lorenz' house.

The jury convicted Wing of one count of sexual intercourse

without consent. The District Court sentenced him to eight years

in prison with four years suspended, designated him a nondangerous

offender for purposes of parole eligibility, and ordered him to

complete a sexual offender treatment program. The jury convicted

Lorenz of two counts of sexual intercourse without consent and one

count of sexual intercourse without consent by accountability. The

court sentenced Lorenz to concurrent eight year prison terms on

6
each of the three counts. The court also determined that Lorenz

was a persistent felony offender and sentenced him to an additional

consecutive ten year term and ordered him to complete the sexual

offender treatment program. Lorenz was designated a dangerous

offender for purposes of parole eligibility.

I.

Did the District Court abuse its discretion in restricting the

defendants' evidence relating to the victim's past sexual conduct?

Defendants contend that the court erred in precluding

additional witnesses from testifying about separate incidents in

which the victim engaged in consensual group sex or in consensual

sex with one of the defendants in the presence of at least one

other person. They contend that the court's preclusion of this

testimony was reversible error because it critically impaired them

from presenting their consent defense. They further claim that

such evidence was relevant and admissible pursuant to § 45-5-511,

MCA, and was intended to corroborate and bolster the defendants'

contentions that the sex was consensual.

The District Court allowed a great deal of evidence to be

introduced regarding the victim's past sexual activities. One

witness, Troy Jones, testified in detail about an incident at the

victim's sister's home in which the victim engaged in consensual

group sex acts with seven men. Lorenz testified about numerous

incidents when he and the victim engaged in consensual sexual

intercourse, with and without other participants. He also

testified concerning times when other persons were actually in the

residence where the sexual events occurred but were not involved in

7
the sexual conduct. Wing testified about the consensual sexual

intercourse that he and the victim engaged in on December 12, 1991,

prior to going to the party at Lorenz' house. He further testified

about numerous prior incidents when he and the victim engaged in

consensual sex acts.

Specifically, Wing testified about one incident in the fall of

1990, when he, the victim and Curt Rice (Rice) had driven to a

location near Sidney and he and the victim engaged in sexual

intercourse while Rice waited in the truck. He claimed that the

victim was anxious to "take them both on" but that Rice had

declined. Wing also testified that the victim had engaged in oral

sex with him in Rice's presence while they returned to town in

Wing's pickup truck after that sexual encounter.

Wing's counsel attempted to call Rice to testify about the

above-described specific events. Lorenz' counsel also attempted to

call other witnesses, whom he claimed could provide testimony about

the number of times the victim had sex with him in the presence of

others, when they first had consensual sexual intercourse and

various dates on which they had consensual sexual intercourse

including the first time they had consensual sex.

After allowing much of this testimony about the victim's past

sexual conduct, the District Court refused to admit the testimony

of additional witnesses concerning the victim's past sexual

conduct. Rulings on the admissibility of evidence are left to the

sound discretion of the district courts. State v. Stewart (1992),

253 Mont. 475, 479, 833 P.2d 1085, 1087. The scope of our review

8
for trial administration issues is the same. Steer Inc. v.

Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601,

604. Thus, the District Court could properly exclude evidence

which is relevant and admissible on other bases.

When Wing attempted to introduce Rice's testimony, the

District Court considered the arguments of both counsel and

concluded as follows:

THE COURT: Well, I still think we've gotten to the

point where that has been adequately shown, and to go

beyond that and start dragging these witnesses in is

going to be more prejudicial than it is probative.

She's admitted the prior contact. She's admitted

that it has occurred with more than one party present on

some occasions. The defendant [Wing] has testified that

it occurred. To start parading these people in is going

to be in effect putting the witness on trial, and that's

not what we're here for.

The statute allows examination of prior acts only

for the purpose outlined in the statute. Your argument

is as to contact with the defendant and to be used for

the purpose of showing consent.

She's admitted the prior contacts and that there was

consent, and I think that we're just stretching it out

too far to start dragging these people in and saying,

"Yeah, I was there, I was there, and I was there."

The court concluded that to bring in other witnesses in addition to

the two defendants and Troy Jones to further testify about the

victim's past sexual conduct was to go beyond the point of being

probative. The court allowed the testimony of Troy Jones regarding

the group sex acts at the victim’s sister’s apartment because there

was no indication at the time that Lorenz would testify to it

himself.

The statute the District Court referred to in the above quote

is known as the "rape shield" statute, § 45-5-511, MCA, and it

provides in pertinent part:

9
(2) No evidence concerning the sexual conduct of the

victim is admissible in prosecutions under this part

except evidence of the victim's past sexual conduct with

the offender or evidence of specific instances of the

victim's sexual activity to show the origin of semen,

pregnancy, or disease which is at issue in the

prosecution.

The Compiler's Comments to § 45-5-511, MCA, provide that

evidence pertaining to the sexual conduct of the victim

is not admissible into evidence at trial. The purpose of

this rule is to prevent the trial of the charge against

the defendant being converted into a trial of the victim.

There are only two exceptions . . . and both go directly

to specific conduct which may be at issue in any given

case. The first allows the defendant to introduce

evidence pertaining to the victim's prior sexual conduct

in relation to himself. Thus, if the victim and

defendant have been sexuallv intimate previous to the

alleqed rane, the defendant may use evidence to this

effect. (Emphasis supplied.)

The district courts are "given wide discretion to exclude

evidence as cumulative even though it is relevant." State v. Short

(1985), 217 Mont. 62, 69, 702 P.2d 979, 983. Rule 403, M.R.Evid.,

provides a number of rationales for exclusion of otherwise relevant

evidence:

Rule 403. Exclusion of relevant evidence on grounds

of prejudice, confusion, or waste of time.

Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay,

waste of time, or needless presentation of cumulative

evidence.

In Short, this Court emphasized a previous case where the

trial court did not abuse its discretion by ruling that repetitious

testimony should be excluded under Rule 403, M.R.Evid. Since the

defendant in that case had previously testified about the evidence,

the court concluded that the probative value of the additional

10
evidence on the same topic as corroborating evidence that the

victim had threatened the defendant was substantially outweighed by

the factors listed in Rule 403, M.R.Evid. Short, 702 P.2d at 983

(citing State v. Breitenstein (1979), 180 Mont. 503, 591 P.2d 233).

We conclude that the District court did not abuse its

discretion in this case by restricting otherwise relevant and

admissible evidence of the victim's past sexual conduct which was

merely cumulative in nature and which easily could have had the

effect of being more prejudicial to the victim than probative to

the jury. We conclude that the jury was presented with ample

evidence of prior consensual acts between the defendants and the

victim from which it could determine without bias the credibility

of the defendants' defense that the victim consented to the sexual

acts on December 12, 1991. We further conclude that the defendants

were not prevented by the court's ruling on cumulative evidence

from presenting their consent defense.

We hold the District Court did not abuse its discretion when

it restricted the defendants' evidence regarding the victim's past

sexual conduct.

II.

Did the District Court abuse its discretion by allowing the

victim to testify about sexual acts committed by others who were

not defendants in this trial?

As discussed above, the District Court allowed the victim to

testify not only to the sexual acts committed by Wing and Lorenz,

but also to those committed by Gary Wing, Scott Sheehan and Mike

Sheehan. Wing and Lorenz contend that the court abused its

11
discretion by allowing this testimony about other sexual conduct

that occurred because it was hearsay and improperly admitted into

evidence under the res qestae doctrine and because it was unduly

prejudicial in relation to its probative value. Lorenz and Wing

further contend that this evidence should have been precluded

because the acts .they committed were clearly separate from those of

the other three defendants as the other three were to be tried in

a separate trial.

Contrary to the arguments made by the defendants, Montana

allows the introduction of evidence which is part of a single

transaction. The concepts embraced by the term res gestae are

included within the codification of that common law doctrine in §

26-l-103, MCA, also referred to as the "transaction" rule, which

provides as follows:

26-l-103. Declaration, act, or omission which is a

part of the transaction. Where the declaration, act, or

omission forms part of a transaction which is itself the

fact in dispute or evidence of that fact, such

declaration, act, or omission is evidence as part of the

transaction.

Whether an act is referred to as part of the r-es gestae or as part

of the "transaction," that act is evidence which is part of the

sane litigated event.

For example, it is well established that evidence which tends

to explain circumstances surrounding the charged offense is

relevant, probative and competent. When the court is not dealing

with the introduction of evidence of wholly independent or

unrelated crimes, the evidence is properly admitted. State v.

Cameron (1992), 255 Mont. 14, 20, 839 P.2d 1281, 1285. In Cameron,

12
we also pointed out that evidence may be admissible if it is

closely related to and explanatory of the offense. Cameron, 839

P.2d at 1287. - - See also State v. Riley (1982), 199 Mont. 413, 426,

649 P.2d 1273, 1279.

To be admissible, evidence must be relevant, competent and

material. These concepts of admissibility are included in Rules

401 and 402, M.R.Evid., relating to relevancy. Generally, evidence

is relevant if it logically and naturally tends to establish a fact

in issue. State v. Smith (19861, 220 Mont. 364, 376, 715 P.2d

1301, 1308.

[Aldmissibility is predicated on the jury's right to hear

what transgressed immediately prior and subsequent to the

commission of the offense charged, so that they may

evaluate the evidence in the context in which the

criminal act occurred. Acts of a defendant subsequent to

the alleged commission of the crime, and intertwined

therewith, are highly probative. (Citation omitted.)

State v. Moore (1992), 254 Mont. 241, 246, 836 P.2d 604, 607.

We conclude that the victim's testimonial evidence about the

sexual acts committed by Gary Wing and Scott and Mike Sheehan was

admissible as part of the transaction and as such, the District

Court did not abuse its discretion by admitting it because such

testimony was relevant according to Rule 402, M.R.Evid., which

provides that l'[a]ll relevant evidence is admissible."

We further conclude that the testimony objected to here

relating to the three other defendants was not hearsay. Hearsay is

a "statement, other than one made by the declarant while testifying

at the trial or hearing, offered into evidence to prove the truth

of the matter asserted." Rule 801(c), M.R.Evid. The testimony of

13
the sexual conduct of the three other men was not offered into

evidence to prove such conduct.

The victim was accessible at trial for full cross-examination

by each of the defendants concerning her testimony. The testimony

concerning these acts was highly probative and its probative value

was not outweighed by prejudice to the defendants. The trial

transcript provides evidence of an exhaustive cross-examination of

the witness regarding her prior sexual activity, not only with the

defendants as allowed by the "rape shield" statute, but also with

numerous other persons because of the nature of the group sex

activities. Moreover, the District Court cautioned the jury that

the acts of the other three men "should have no bearing on your

consideration of what these two individuals are charged with and

are not to be considered in any of your deliberations." We

conclude that the testimony about the sexual acts committed by Gary

Wing, Scott Sheehan and Mike Sheehan was admissible under Rule 402,

M.R.Evid., and Rule 801(c), M.R.Evid.

We hold the District court properly exercised its discretion

by allowing the victim to testify about sexual acts committed by

others who were not defendants in this trial.

III.

Did the District Court abuse its discretion by restricting

defendant Lorenz' cross-examination of the victim?

Defendant Lorenz contends that the District Court also abused

its discretion by precluding his counsel from asking the victim

questions directed to specific instances of her prior sexual

conduct with Lorenz in the presence of others. At the time Lorenz'

14
counsel objected to the restriction on cross-examination of the

victim, the District Court specifically instructed counsel that

questions could not be framed so as to presume sexual conduct which

had not been testified to in evidence.

The District Court advised counsel as follows:

THE COURT: . . . The point I'm trying to get across

to you is, I will allow your area of questioning. I'd

agree with you that it's relevant and the statute allows

it. Okay. What I don't want is for you to be

questioning this witness presuming facts that are not in

evidence. And every time you start your question, "Isn't

it true that on such and such a date with such and such

a person you did this and this and this," when there's

been no testimony that that in fact happened. You can

ask in general, "Have you ever had sex with," "From this

point on, have you ever done this?" Okay. If she says

yes, then you can ask her when and where and with who.

And if she says no, then you've got to go to another

method of proof. Do you understand what I'm saying?

MS. IRIGOIN: Although she says yes ----

THE COURT: Every time you give that question,

"Isn't it true that you did on such and such a day with

such and such a person present," you're getting into an

area where you've already given the jury the statement of

fact that has not been shown in any way, shape or form

and the question presumes something not in evidence.

We emphasize that it is within the trial court's discretion to

exercise reasonable control over the mode in which a party

interrogates witnesses. State v. Gommenginger (1990), 242 Mont.

265, 274, 790 P.2d 455, 461. Recently, in State v. McNatt (1993),

257 Mont. 468, 473-74, 849 P.2d 1050, 1054, we held that the right

to cross-examine a witness is not absolute, stating:

Balanced against this right of confrontation is Rule

611 (a) , M.R.Evid., which provides that the district court

has discretion in exercising reasonable control over the

mode and order of interrogating witnesses so as to (1)

make the interrogation and presentation effective for the

ascertainment of the truth, (2) avoid needless

15
consumption of time, and (3) protect witnesses from

harassment or undue embarrassment.

Despite the trial court's discretion to exercise reasonable

control over the mode of interrogation of witnesses, the exercise

of such control must not infringe upon the rights of a party. 81

Am. Jur. 2d Witnesses 5 717 (1992). In Gommensinaer, we stated:

[T]he trial court's discretion in exercising control and

excluding evidence of a witness's bias or motive to

testify falsely becomes operative only after the

constitutionally required threshold level of inquiry has

been afforded the Defendant.

Gommenginger, 790 P.2d at 461 (citing United States v. Tracey (1st

Cir. 1982)) 675 F.2d 433, 437.)

The federal courts have said the exercise of reasonable

control over the mode and order of interrogating witnesses and

presenting evidence encompasses the same purposes as are set forth

in Rule 611, M.R.Evid. 81 Am.Jur.2d Witnesses § 717. The exercise

of the court's discretion "will not be disturbed unless it has been

abused or substantial harm has improperly been done to the

complaining party." 81 Am.Jur.2d Witnesses § 717.

The substance of the court's directing the mode of

interrogation in this case is the court's refusal to allow counsel

for defendant Lorenz to ask questions beginning with, "Isn't it

true that . . .,'I which included facts of actual prior sexual

encounters between the defendants and the victim where third

persons were also present, such as the following:

[MS. IRIGOIN]: And isn't it true that during part of

those times, or a number of those times, someone else was

present while you were having sexual intercourse with

your consent with John Lorenz?

16
. . .

[MS. IRIGOIN]: Didn't you in December of 1990 have

sexual intercourse with your consent with John Lorenz

with a number of people present?

Essentially, counsel for defendant Lorenz attempted to ask if the

witness had had sexual intercourse with her consent at a particular

place, at a particular time and with a particular third person

present.

We conclude that the District Court erroneously limited the

questions on cross-examination to questions based upon facts which

had already been established in the record. Our rules do not

contain such a limitation. On cross-examination, it is entirely

appropriate to ask a question such as: "IsnYt ?it true that on

( :P

;~

April 24, 1992, the defendant and you had sexual relations?" Li

Although we conclude that the District Court incorrectly

limited the cross-examination, our review of the record discloses

that all of the information sought to be disclosed was actually

presented in an alternative cross-examination format and, as a

result, there was no injury to the substantial rights of Lorenz.

In Montana, an error committed by the trial court against the

appellant is harmless error and will not require reversal "unless

the record shows that the error was prejudicial." Section 46-20-

701(1), MCA. Prejudice must not be presumed, but ra(ther must

c

appear from the denial or invasion of a substantial right from

which the law imputes prejudice. State v. Newman (1990), 242 Mont.

315, 325, 790 P.2d 971, 977. When assessing the prejudicial effect

of an error, this, Court will examine the totality of the

>..I.

;a ,I

17
circumstances in which the error occurred. Brodniak v. state

(1989), 239 Mont. 110, 115, 779 P.2d 71, 74. As noted above,

Lorenz' substantial rights were not affected by the District

Court's ruling.

We hold that the District Court did abuse its discretion in

requiring that defendant Lorenz' cross-examination of the victim be

structured in the specific manner explained above, but that the

court's control did not constitute reversible error because there

was no adverse consequence to the defendant.

IV.

Did the District Court err in designating defendant Lorenz a

dangerous offender for purposes of parole eligibility?

1 ,I

Lorenz contends the District Court fai.le@ to adequately

4,;

articulate its reasons for designating him a dangerous offender

under § 46-18-404, MCA. In pertinent part, § 46-18-404(l), MCA,

provides:

(1) . . . [T]he sentencing court shall designate an

offender a nondangerous offender for purposes of

eligibility for parole under part 2 of chapter 23 if:

(a) during the 5 years preceding the commission of

the offense for which the offender is being sentenced,

the offender was neither convicted of nor incarcerated

for an offense committed in this state or any other

jurisdiction for which a sentence to a term of

imprisonment in excess of 1 year could have been imposed;

and /

(b) the court has determined, based ong any

presentence report and the evidence presented at the

trial and the sentencing hearing, that the offender 'does

not represent a substantial danger to other persons or

society.

The designation of dangerous offender is an important factor

in determining parole eligibility for ;$orenz as he may not be

la
paroled unless he has served one-half of his full term less any

good time he may have accumulated under the provisions of 5 53-30-

105, MCA. & § 46-23-201(2), MCA.

In State v. Morrison (1993), 257 Mont. 282, 287, 848 P.2d 514,

517, this Court emphasized that the above code section governs the

designation of both nondangerous and dangerous offenders and

stated:

The designation of an offender as either

nondangerous or dangerous is an important factor in

determining parole eligibility. Section 46-18-404, MCA,

governs the designation of nondangerous or dangerous

offender. In State v. Belmarez (1991), 248 Mont. 378,

381, 812 P.2d 341 343, we stated:

[A]n individual may be designated a dangerous

offender, if, in the discretion of the

sentencing court, he is determined to

represent a substantial danger to other

persons or society; however, more than a mere

recital of the statutory language is required.

The sentencing court must articulate its

reasons underlying its determination.

The key point for the present case is that an individual may be

designated as a dangerous offender if he is determined to represent

a substantial danger to other persons or society. The District

Court here failed to articulate why Lorenz represented a

substantial danger to other persons or to society.

At the sentencing hearing in this case, the District Court

stated as follows:

In terms of dangerous or non-dangerous designation, as I

read the statute, I can only designate him as a nondangerous offender if he has not had any felony

convictions within the last five years, and so for that

reason the designation in this case will be as a

dangerous offender since there are two prior felony

convictions within the last five years.

The only additional reference to the dangerous offender designation

19
was the following statement in the District Court Judgment and

Sentence: "The defendant is designated as a dangerous offender."

In Morrison, 848 P.2d at 517, the Court concluded that where

there is substantial evidence to support a court's determination

that an offender is dangerous, this Court may remand to the

district court for findings to support such a conclusion. We

pointed out that without such findings this Court cannot determine

whether there is an abuse of discretion. Morrison, 848 P.2d at

517-18.

We conclude the District Court failed to articulate adequate

reasons for designating the offender as dangerous as required by §

46-18-404, MCA, and Morrison. We reverse the designation of Lorenz

as a dangerous offender and remand to the District Court for

additional findings articulating its reasons for a dangerous or

nondangerous designation.

Affirmed in part, reversed in part and remanded for further

proceedings consistent with this opinion.

March 22. 1994

CERTIFICATE OF SERVICE

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

following named:

Katherine M. Irigoin

Habedank, Cumming, Best & Savage

P.O. Box 1250

Sidney, MT 59270

William F. Hooks

Appellate Public Defender

P. 0. Box 200145, Capitol Station

Helena, MT 59620-0145

Hon. Joseph P. Mazurek

Attorney General

Justice Bldg.

Helena, MT 59620

Gary Ryder

Deputy County Attorney

Richland County courthouse

Sidney, MT 59270

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA