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No.

91-210

IN THE SUPREME COURT OF THE STATE OF MONTANA
1991

STATE OF MONTANA, Plaintiff and Respondent, -vsPERRY KRINITT, Defendant and Appellant.

APPEAL FROM:

District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable Larry w. Moran, Judge presiding.

COUNSEL OF RECORD: For Appellant: Larry Jent; Williams, Jent Montana For Respondent: Hon. Marc Racicot, Attorney General; Kathy Seeley, Asst. Atty. General, Helena, Montana A. Michael Salvagni, County Attorney; Jennifer eputy, Bozeman, Montana
&

Dockins, Bozeman,

UEC 1 2 1991

Submitted on Briefs:

October 3 , 1991

Justice Terry N. Trieweiler delivered the opinion of the Court. Appellant Perry Krinitt was charged by information with one count of theft, or in the alternative, one count of forgery. Following a jury trial, he was found guilty of theft and not guilty of forgery. affirm. Krinitt raises three issues:
1 .

Krinitt appeals from the judgment of conviction.

We

Did

the

delay

in

filing

criminal

charges

violate

appellant's right to due process?
2.

Was sufficient evidence presentedto prove that appellant

intended to deprive the owner, his spouse, of the property?
3.

Was the money taken "property normally accessible to both

spouses" under 5 45-6-303 ( 2 ) , MCA? Perry Krinitt (Krinitt) married Florence Krinitt (Mrs.

Krinitt) in 1970.

Mrs. Krinitt was the beneficiary of a family

trust and had been receiving income from the trust on a quarterly basis since she was 22 years old, approximately one year before her marriage to Krinitt. during the marriage. She continued to receive the trust income She received a check from the trust in

January, April, July, and October, usually between the loth and 15th of the month. Because of financial problems, the Krinitts filed for

bankruptcy in 1981. They eventually lost their home. Mrs. Krinitt felt that her husband was unable to control his financial situation and spending habits, and took steps to separate her finances from his. After the bankruptcy, she did not enter into joint financial
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obligations with Krinitt.

She did not have a joint bank account

with him. After she was discharged from bankruptcy, she reaffirmed certain of the debts and instituted a repayment schedule in 1983. The Krinitts were dependent on the income from Mrs. Krinitt's trust to pay bills and make debt payments. Some years earlier

Krinitt had taken one of the trust checks and cashed it without Mrs. Krinitt's knowledge, making it difficult for her to meet her obligations. In order to protect her ability to pay bills and debt payments, in 1985 she requested the trustee, Wells Fargo Bank, to send the quarterly dividend checks to her attorney's office, rather than her home. The dividend checks were deposited into a trust

account from which she and her attorney paid bills and other obligations. Mrs. Krinitt also received a monthly income for Krinitt did not have access to the trust

household expenses.

account or these funds. Beginning in 1985, and continuing through 1986 and 1987, all
of the trust dividends were sent directly to Mrs.

Krinitt's

attorney.

The attorney would not release any of this money to

Krinitt unless Mrs. Krinitt authorized him to do so.

In September
separation.

1985, Mrs. Krinitt filed a petition for legal

The Krinitts, however, continued to live together In October 1985, Mrs. Krinitt obtained a temporary to prevent Krinitt from any transferring, property. On

until mid-1988.

restraining

order

encumbering, concealing, or disposing of

November 7, 1985, the District Court ordered that "both [Mrs. Krinitt] and [Krinitt] are
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restrained

from

transferring,

encumbering, concealing or otherwise disposing of any property, except in the usual course of business, or for the necessities of life and they are required to notify each other of any proposed extraordinary expenditures

.

...

I1

In January 1988, Mrs. Krinitt was expecting to receive her quarterly dividend check on about the 10th of the month. check did not arrive, she began to get worried. When the

She called her She

attorney several times, but he had not received the check.

called Wells Fargo Bank and was told the check had been mailed about January 10th. Wells Fargo Bank informed her that the check Krinitt had deposited the check in his

had already been cashed.

account at Western Federal Savings and Loan on January 14, 1988. Mrs. Krinitt had no authority over this account, and was not even aware of its existence in January 1988. The dividend check was for $8015. When Krinitt presented it to the teller at Western Federal Savings, the check had the signature "Florence Elizabeth Krinitt" endorsed on the back. Krinitt put his own signature on the check in front of the teller. Mrs. Krinitt testified that she had not signed the check and the signature was not hers. She testified that it was apparent from

the face of the check that the check had been mistakenly mailed to the post office box she shared with Krinitt, instead of to her attorney's address. When Mrs. Krinitt questioned him about the Later, however, he

lost check, Krinitt at first denied seeing it. admitted to her that he had cashed the check.

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Mrs. Krinitt told her attorney of what had happened, and the attorney notified Western Federal Savings that the check had been cashed improperly. In order to recover her lost money, Mrs.

Krinitt filed an affidavit of forgery with Western Federal Savings on February 18, 1988. Krinitt the $8015. Western Federal Savings reimbursed Mrs.

Western Federal Savings was unable to charge

Krinitt for the loss because there was never enough money in his account. Western Federal Savings reported the matter to the

Bozeman Police Department. An officer of the police department interviewed Mrs. Krinitt in late February 1988. Mrs. Krinitt was reluctant to participate On

in the police investigation, but agreed to an interview. March 1,
1988,

the police department submitted a request for

prosecution to the Gallatin County Attorney's Office. However, the county attorney's office decided not to file charges at that time. Apparently the main reason the county attorney did not proceed with prosecution was the fact that Mrs. testifying against her husband by

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Montana Law