STATE v WING
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No. g3 226 and 92-0~~ IN THE SUPREME COURT OF THE ~TPA'PE o* ~1 " -'QfaA 1994 STATE OF MONTANA, Plaintiff and Respondent, -vGREGORY WING, Defendant and Appellant. and STATE OF MONTANA, Plaintiff and Respondent, -vJOHN JACOB LORENZ, Defendant and 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 Hooks, William F. Montana; Glendive, (Wing), Appellate Public Defender, Helena, Montana (Lorenz and Wing on appeal) For Respondent: Hon. Joseph P. Mazurek, Attorney G","n";;, Cre,yzn:. Attorney Assistant coughlin, Montana; Mike Weber, Richland County Atto'rney, Gar; Ryder, Deputy County Attorney, Sidney, Montana Submitted on Briefs: Decided: Filed: December 2, 1993 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, after a two-year absence. Montana 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. arrived at Lorenz' The two Sheehans and Gary Wing and the Sheehans' house same time as Wing and the victim. Lorenz at approximately was already the 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. men, Wing, The victim testified that she struggled with the three still crying, and told them she wanted to go home, but Gary 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, cigarette and then asked for a ride home. she smoked a 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 was of a the three persistent consecutive offender offender counts. felony ten year court offender term treatment for The and and of determined sentenced ordered him Lorenz program. purposes also was parole him to that to an additional complete designated Lorenz the a sexual dangerous eligibility. I. Did the District Court abuse its discretion in defendants' evidence relating to the victim's past contend Defendants additional witnesses which victim sex the with other one testimony from was was MCA, and in The relevant the District introduced Troy victim's sister's group to sex Jones, of at least one of this impaired them claim that court's it preclusion critically They further pursuant to bolster the and great deal past sexual in detail which the men. Lorenz acts with incidents when he and the with and without seven victim testified concerning times when residence where sexual other § 45-5-511, defendants' 7 evidence an incident engaged in in but be One at the consensual about numerous consensual participants. persons to activities. testified engaged occurred of about victim other events the consensual a sex intercourse, in victim's in in consensual. testified home incidents or admissible allowed the precluding sex defense. corroborate in presence the because and was Court regarding witness, error group the that consent intended that separate consensual their evidence contentions about contend such was erred in reversible presenting court defendants the They the testifying from engaged of person. that restricting the sexual conduct? sexual He were actually were not also in involved the in 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. victim was anxious to declined. He claimed that the "take them both on" but that Rice had 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 various dates on which they had consensual sexual and 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 conduct. witnesses concerning the victim's past Rulings on the admissibility of evidence are left to the sound discretion of the district courts. 253 sexual Mont. 475, 479, 833 P.2d 1085, 1087. 8 State v. Stewart (1992), The scope of our review for trial administration Department 604. of Thus, which Revenue the relevant When Wing as and is 245 could admissible to considered the Mont. Court attempted Court concluded (1990), District is District issues on the same. 470, Steer 475, properly other 803 Inc. P.2d exclude v. 601, evidence bases. introduce Rice's arguments of testimony, both the counsel and 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 Your argument for the purpose outlined in the statute. 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 the two defendants and victim's past The probative. the no court indication at bring Troy conduct the in other Jones was allowed sex acts at the group was sexual to to further go to the witnesses beyond testimony in testify that about the being point of Troy of Lorenz to the Jones regarding victim s sister s apartment time addition would because testify there to it himself. The is known provides statute as in the the District "rape pertinent Court shield" referred statute, part: 9 § to in the 45-5-511, above MCA, quote and it (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, disease which is at issue in pregnancy, or 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 to himself. Thus, if the victim and in relation defendant have been sexuallv intimate previous to the alleqed rane, the defendant may use evidence to this effect. (Emphasis supplied.) The district evidence as courts cumulative are even "given though (1985), 217 Mont. 62, 69, 702 P.2d provides a it number of rationales wide is discretion relevant." 979, 983. for Rule exclusion of to State 403, exclude v. Short M.R.Evid., otherwise relevant evidence: Rule 403. Exclusion of relevant evidence on grounds 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. of In trial Short, did not testimony should be defendant in the court this court that Court abuse its excluded case concluded emphasized had that a discretion under Rule previously the by ruling 403, testified probative 10 previous value case that M.R.Evid. about of the the where the repetitious Since the evidence, additional 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 unduly evidence under the res qestae doctrine and because it was 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, part of the transaction. Where act, or omission which is a 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. with the unrelated introduction crimes, Cameron (1992), 255 of When the court is not dealing evidence of wholly independent or the evidence is properly admitted. Mont. 14, 20, 839 P.2d 1281, 1285. 12 State v. In Cameron, we also pointed out that evidence may be admissible if it is closely related to and explanatory of the offense. P.2d at 1287. Cameron, 839 See also State v. Riley (1982), 199 Mont. 413, 426, - 649 P.2d 1273, 1279. To be admissible, evidence must be relevant, material. competent and 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), 13 M.R.Evid. The testimony of 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. 14 At the time Lorenz' counsel objected victim, the questions had been The the District could not to not on cross-examination Court specifically framed so be testified District restriction to Court in as to instructed presume of the counsel that conduct which sexual evidence. 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 Okay. it. 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 then you can ask her when and where and with who. yes, 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 exercise reasonable interrogates 265, that it is control witnesses. Mont. 468, 473-74, to cross-examine a 849 witness the over State 274, 790 P.2d 455, 461. 257 within v. the is 1050, not court's mode in Gommenginger Recently, P.2d trial discretion which (1990), a party 242 Mont. in State v. McNatt 1054, absolute, we held that (1993), the 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 avoid ascertainment of the truth, needless (2) 15 to right consumption of time, and (3) protect harassment or undue embarrassment. Despite control the the over of such Am. Jur. 2d trial mode control must court's of not Witnesses 5 discretion interrogation infringe 717 to from exercise reasonable of witnesses, the the upon (1992). witnesses rights a In of Gommensinaer, exercise party. we 81 stated: [T]he trial court's discretion in exercising control and excluding evidence of a witness's bias or motive to testify falsely operative becomes only after the constitutionally required threshold level of inquiry has been afforded the Defendant. Gommenginger, Cir. 1982)) The control 790 675 over the Rule 611, of the court's or at 461 433, courts mode evidence in have M.R.Evid. 81 81 in for defendant true that . encounters were same this not has case to .,'I which between the also present, the is ask of interrogating purposes as (1st are forth exercise it has been to the mode of 717. § directing court's questions refusal beginning the to allow with, counsel "Isn't included facts of actual prior defendants and the victim where such as the it sexual 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 and done been Witnesses set The unless improperly reasonable witnesses 717. disturbed court's the exercise Witnesses § be Am.Jur.2d Lorenz . the Am.Jur.2d harm of the of discretion "will party." interrogation said order encompasses substance The (citing United States v. Tracey 437.) and substantial complaining persons F.2d federal presenting abused P.2d third . . . [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, witness had place, at counsel had a for sexual defendant Lorenz intercourse particular time with and attempted to ask consent at a her with a particular if the particular third person present. We conclude questions had on April 24, been in a to that established limitation. ask a 1992, the Although limited District to such appropriate the cross-examination already contain that we the and cross-examination, of the presented in an alternative there was no Montana, an appellant the record 701(1), appear which 315, of is the law imputes error, this, District our review to to the by error not not it the do is disclosed of rights trial v. discloses was actually and, of court require a incorrectly format presumed, State as against reversal Section 46-20- but (1990), must from 242 assessing the prejudicial will examine >..I. ;a ,I the totality the "unless ra(ther c substantial right Newman a Lorenz. When 17 not entirely record prejudicial." be invasion prejudice. Court be the was or of substantial the must rules Court cross-examination committed 325, 790 P.2d 971, 977. an the will denial Our which "IsnYt ?it true that on ( :P ;~ had sexual relations?" Li you and that facts upon the as: error Prejudice MCA. the error harmless shows from injury based record. sought information In such that all result, the limited cross-examination, question defendant erroneously questions On conclude Court Mont. effect of the circumstances in which the error Mont. 110, 115, 779 (1989), 239 Lorenz' substantial Court's Brodniak occurred. v. state ruling. We hold requiring that structured that in rights the the 74. As affected by the its discretion Court did abuse Lorenz' cross-examination specific court's control did was adverse consequence no 71, not were District defendant P.2d not manner to District in of the victim be but that the reversible the above, above, explained constitute noted error because there defendant. IV. Did dangerous the District Court err offender for purposes under designating defendant Lorenz a parole eligibility? 1 ,I Lorenz contends the District Court fai.le@ to adequately 4,; articulate its reasons for designating him a dangerous offender 46-18-404, § MCA. In in of pertinent part, § 46-18-404(l), MCA, provides: (1) . . . [T]he sentencing court shall designate an offender for purposes of offender a nondangerous 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 / the court has determined, based ong any (b) 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 in designation determining parole of dangerous eligibility offender for la is an important ;$orenz as he may factor not be paroled unless good time 105, he MCA. he has may & have § served one-half accumulated 46-23-201(2), under Court designation emphasized of both his the term full provisions of less 5 any 53-30- MCA. In State v. Morrison (1993), 517, this of that 257 Mont. 282, 287, 848 the nondangerous above code and section dangerous P.2d 514, governs the 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 designated a as substantial Court At a the present dangerous case offender danger to other to that he is articulate danger the is if failed here substantial for to other sentencing persons persons hearing in or why or to this an individual determined society. Lorenz may be to represent The District represented a society. 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 h e h a s not had felony any convictions within the last five years, and so for that reason the designation in this case will be as a offender since there are two prior felony dangerous convictions within the last five years. The only additional reference to the 19 dangerous offender designation 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
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