No. 83-10 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsJa'4ES E. PAISLEY, 

Defendant and Respondent. 

Appeal from: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable James B. Wheelis, Judge presiding. 

Counsel of Record: 

For Appellant: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Ted 0. Lynpus, County Attorney, Kalispell, >lontana 

For Respondent: 

Keller & Gilmer, Kalispell, Montana 

Submitted! on Briefs: !;larch 25, 1983 

Decided: May 19, 1983 

File": MAY 1 9 1983 

.-pp - -- ----- Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Defendant was arrested on January 17, 1982, and charged 

by information with one count of sexual intercourse without 

consent. An amended information was filed March 19, 1982, 

charging defendant with one count of sexual intercourse 

without consent, a felony, one count of sexual assault, a 

felony and one count of sexual assault, a misdemeanor. All 

of the charges stem from defendant's actions toward three 

female patients in his Flathead County, Montana, dental 

off ice. 

After his arrest and the filing of the additional 

charges, defendant's dental business decreased substantially. 

On April 6, 1982, defense counsel mailed letters to over 

seven hundred of defendant's patients clarifying defendant's 

position regarding the charges. Defendant's dental business 

once again increased. 

Defendant's trial on the misdemeanor charge began in 

justice court in Flathead County, Montana on September 27, 

1982, and lasted for three days. A verdict of guilty was 

returned on September 30, 1982. Ralispell's Daily Inter 

Lake newspaper gave the trial and its result front page 

coverage on all four days. The Missoulian also extensively 

covered the trial. 

The felony charges against defendant were scheduled to 

be tried in the Eleventh Judicial District Court, Flathead 

County. On October 15, 1982, defendant made a motion for 

change of place of trial. A hearing on the motion was held 

November 15, 1982. The motion was granted at the close of 

the hearing. Pursuant to section 46-20-103, MCA, the State 

now appeals the order granting the change of venue. We 

affirm. 
Defendant's motion was supported by his defense 

counsel's affidavit stating facts in support of the prejudice 

alleged; by copies of the newspaper accounts of the September 

trial in justice court; and by a written report of 

criminologist Dr. Richard Vandiver's survey of the opinions 

of Flathead County's registered voters regarding the guilt of 

this defendant. 

The State filed a motion in opposition on November 5, 

1982, containing four responses to defendant's motion: 

1. Defense counsel acted inappropriately in sending the 

letters to defendant's clients. The letters attracted the 

attention of the news media. Defendant should not now be 

able to benefit from his own wrong. 

2. The news media covered defendant's trial in a fair 

and objective manner. The publicity did not affect 

defendant's chances of receiving a fair trial in Flathead 

County. 

3. The criminologist's survey indicated that a majority 

of the respondents believed they could decide the case solely 

on the basis of the evidence presented at trial. 

4. The District Court should reserve ruling on 

defendant's motion until voir dire of a Flathead County jury 

panel. 

At the November 15, 1982 hearing on the motion for 

change of venue, defendant testified regarding the impact of 

his reported conviction upon his dental practice. The State 

called no witnesses, offered no evidence and conducted no 

cross-examination. 

Absent abuse of discretion, the District Court's ruling 

on a motion for change of venue will be affirmed. State ex 

rel. Coburn v. Bennett (1982) , Mont. , I 655, 

P.2d 502, 506, 39 St.Rep. 2300, 2306. To grant such a 
motion, there must be "reasonable grounds to believe that the 

prejudice alleged actually exists and that by reason of the 

prejudice there is a reasonable apprehension that the accused 

cannot receive a fair and impartial trial." State v. Link 

(1981), Mont . -1 - , 640 P.2d 366, 368, 38 St.Rep. 

982, 985, quoting People v. Berry (1967) , 37 Ill. 2d 329, 226 

N.E.2d 591, 593. When prejudicial pretrial publicity is 

alleged, the publicity must be inflammatory and create a 

reasonable apprehension that a fair trial is not possible 

before the motion will be granted. State v. Ritchson (1982) , 

Mont . f - , 647 P.2d 830, 832, 39 St.Rep. 1201, 

1203-04. 

the written report his survey , Dr. Vandiver 

concluded: 

"The results of this survey do not overwhelmingly 

indicate either the liklihood or improbability of 

Mr. Paisley receiving a fair jury trial in Flathead 

County. It is obvious that the publicity given the 

case by the local media has been widespread and 

effective . . . 

"It was not clear that people's opinions are set 

regarding guilt or innocence nor does there appear 

to be a strong perception of agreement in the 

community about the case. Thus while it might be 

possible for Mr. Paisley to receive a fair jury 

trial in Flathead County the liklihood of that will 

undoubtedly be affected by the extent and nature of 

further publicity in this case." 

The survey was conducted prior to defendant's trial in 

justice court. The trial was given extensive coverage by the 

media. Regarding the guilty verdict, The Daily Inter Lake 

reported that the justice court judge told the defendant: 

"The evidence presents you as being guilty of more than the 

particular offense charged. " The paper also stated: " [The 

judge] said he was amending the formal charge to include 

misdemeanor charges against Paisley that could have resulted 

from the incidents detailed in the testimony of the 
witnesses." Those witnesses are the alleged victims of the 

pending felony charges. 

The extent of the further publicity was great. It's 

nature was inflammatory. Clearly, the District Court judge 

did not abuse his discretion in granting defendant's motion 

for change of venue. 

Finally, in State ex rel. Coburn v. Bennett, Mont . 

stated : 

"Not every venue case requires that voir dire be 

employed to determine whether prejudice still 

'exists and that by reason of the prejudice there 

is a reasonable apprehension that the accused 

cannot receive a fair and impartial trial. ' While 

the determination of whether widespread prejudice 

prohibits selection of an impartial jury is usually 

made during voir dire, each case must turn on its 

special facts. United States v. Engleman (E.D. 

Mo. 1980), 489 F.Supp. 48." 

The District Court's ruling on defendant's motion was 

within the bounds of properly exercised discretion. 

Affirmed. 

We concur: 

1 respectfully dissent on the basis th/the change of 

venue order is premature. 

I&- (