Shishkabob
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Judge rules family can't refuse chemo
- Thread starter Shishkabob
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DrankTheKoolaid
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It's about time children don't have to suffer, or at least stand a chance at living despite the zealot beliefs of their parents.
It's about time children don't have to suffer, or at least stand a chance at living despite the zealot beliefs of their parents.
JPINFV
Gadfly
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Out of the hands of zealot parents and into the hands of the zealot state.
DrankTheKoolaid
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yeah i agree CPS can go overboard, but hopefully whoever provides medical oversite over this child will have the child's best interests in mind
yeah i agree CPS can go overboard, but hopefully whoever provides medical oversite over this child will have the child's best interests in mind
But what are the child's best interests? The parents had consented to chemo but then stopped it for whatever reasons. Until you yourself see what a child may go through after one of these treatments, it is hard to say what is best. It is heartbreaking to watch your child die as it is hard to watch your child become sicker from the treatment that is supposed to cure him. It is also hard to be in the hospital with your child on a pediatric onocology floor where children die all around you. They are usually the same ones that had also be given hope of a 90% chance for recovery. While it may sound promising, many do end up being in that 10% that don't recover.
Once CPS gets involved, the child will remain a Full Code as long as he is under their jurisdiction. We have children who will never have a quality live warehoused in LTC facilities who are being kept alive by tubes and ventilators "all in their best interest" because the state did not agree. Those that make the laws in the the state can also be termed a zealot just like the parents. Look at Jeb Bush's attempt to enforce his own belief's upon the people of the state of Florida because he didn't agree with someone else's decision about medical care.
DrankTheKoolaid
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I have seen children go through this. Unfortunately the story doesn't tell everything about what this child has been through. But it does point out the the child didn't even finish the first round of chemo when his parents pulled him out stating " it was his decision" BS. A child that young doesn't and cant understand the ramifications of making a decision like this, and his parents decision to not complete the recommended treatment which the MD's state will give him a 90% chance should be criminal. This coming from a father who is following the direction of a witch doctor who has already served time for fraud related to the same advice.
And you know what this isnt about the parents feelings, and that is a very selfish thing to even say. This is about the child's life, screw the parents feelings.
I do agree though projected survival rates based on stage 1, 2, 3, 4 or even 5 for that matter can be quite a bit misleading and yes they could very well end up on a LTC with poor QOL.
And the bit about Jed just proves we need true separation of church and state.
I have seen children go through this. Unfortunately the story doesn't tell everything about what this child has been through. But it does point out the the child didn't even finish the first round of chemo when his parents pulled him out stating " it was his decision" BS. A child that young doesn't and cant understand the ramifications of making a decision like this, and his parents decision to not complete the recommended treatment which the MD's state will give him a 90% chance should be criminal. This coming from a father who is following the direction of a witch doctor who has already served time for fraud related to the same advice.
And you know what this isnt about the parents feelings, and that is a very selfish thing to even say. This is about the child's life, screw the parents feelings.
I do agree though projected survival rates based on stage 1, 2, 3, 4 or even 5 for that matter can be quite a bit misleading and yes they could very well end up on a LTC with poor QOL.
And the bit about Jed just proves we need true separation of church and state.
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daedalus
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I am not sure of the circumstances here, but if it is a simple case of the parents not thinking allopathic treatment is the best route when the child has a chance, than of course I support CPS.
The child may see another group of doctors who gives him only 5% chance of survival.
You say the child should have no opinion or say in the matter yet you call the parents selfish. You don't believe a child of 13 can not understand he has something that could kill him? Children grow up very quickly when faced with these situations. Often they think clearer than the adults around them and that includes those who are considered professional health care providers.
Yes, the opinion of the child at the age of 13 does matter. 99% of the healing still comes from the person and their own will to live. They must also believe the treatment will work. Tying a patient down and forcing therapy upon them in a secured room is not the best environment for healing.
If you remove the child from the family you have now removed him from his support group. Do you really believe that is with the child's best interest in mind?
Nobody said anything about a witch doctor. Alternative medicine comes in many forms and several hospitals, including the majors names, now do promote it. Chemo is not always the best answer. It is about choice. Who is to say the choices made by CPS are any better. Their guidelines are also made by people who have their own strict beliefs about what is right or wrong.
How close were you to the children that you have seen go through this? Have you spent hours at the bedside of a child you loved feeling helpless because you took your child to the "best" doctors who promised hope in statistics? Have you been present when life support is finally discontinued and watched a child slowly die? While this may sound like a lot of bulls&*# drama to you, this is what that family and child may have already seen at the hospital or have heard in their support groups.
My opinion may be a little skewed since I do work at the life support end of their journey which isn't always pleasant for all involved. Unfortunately, often when they reach that point the family will now have to make another decision to end life support which will be presented to them by the same doctors who said the child had 90% chance of survival. Can you imagine the confusion? Of course the doctors will not say their treatment plan was wrong but will just say "it didn't go as planned". And, when the family is now all set to fight for their child's life, they are told to "pull the plug" or we will make you let your child die through our Ethics Committee and legal action. Do we not give alot of mixed messages in the health care process?
daedalus
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From article.
Good. Toss these parents in jail and throw away the key while your at it. This is attempted murder. I have respect for religious people, but when their bigotry and ignorance prevents people from living their lives free to do what they want (gay marriage) and prevents them from living at all (this situation) I have serious issues.
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DrankTheKoolaid
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As a matter of fact i was very close with the child and her parent. And watched with horror at the emotional roller coaster they went through, and hoped it never happens to my child.
I never said i wanted the child removed from the home, nor would i ever say that unless there was some other serious abuse issues going on. And i would hope that the family would be able to keep the child in their custody during the treatments as that is what the child needs for his own psychological well
being.
Your absolutely right that the child needs to *Believe* this will work. And this child has no chance of ever believing in conventional medicine because of the parents slanted opinions. This is akin to brainwashing and to think that the child can make a Informed decision is ridiculous.
I agree this is not a perfect system, but this child needs somebody who will give him a fighting chance at living which his parents obviously are not.
And witch doctor pretty much goes without saying as he has served time for pushing whatever he is pushing and it obviously didn't work and had no factual foundation to back his theories as he went to PRISON for it.
Don't get me wrong i have nothing against homeopathic remedies as how can you argue with centuries of chinese medicine, which eventually gave rise to our modern day pharmacology. But whatever he is using/pushing obviously has no factual historic foundation for the reason he is giving the advice.
As a matter of fact i was very close with the child and her parent. And watched with horror at the emotional roller coaster they went through, and hoped it never happens to my child.
I never said i wanted the child removed from the home, nor would i ever say that unless there was some other serious abuse issues going on. And i would hope that the family would be able to keep the child in their custody during the treatments as that is what the child needs for his own psychological well
being.
Your absolutely right that the child needs to *Believe* this will work. And this child has no chance of ever believing in conventional medicine because of the parents slanted opinions. This is akin to brainwashing and to think that the child can make a Informed decision is ridiculous.
I agree this is not a perfect system, but this child needs somebody who will give him a fighting chance at living which his parents obviously are not.
And witch doctor pretty much goes without saying as he has served time for pushing whatever he is pushing and it obviously didn't work and had no factual foundation to back his theories as he went to PRISON for it.
Don't get me wrong i have nothing against homeopathic remedies as how can you argue with centuries of chinese medicine, which eventually gave rise to our modern day pharmacology. But whatever he is using/pushing obviously has no factual historic foundation for the reason he is giving the advice.
This child had a dose of chemo. You can't get much more informed than that. If you are familiar with a child that has under gone chemo treatments then you should already know what "conventional" medicine leads up to that point. It is a painful and long process that also involves hours of counseling which includes the child.
Brainwashing? When the system challenges the people this child loves and makes them out to be akin to murderers?
DrankTheKoolaid
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Yeah i'm not arguing with you Vent, as i can also see it from the child's perspective. But im still of the opinion, that a parents religious/passive beliefs should not be a factor. As this is not the beliefs of the child, it is what he is taught to believe. That is not informed consent.
Im sure the child didn't fair well after the initial chemo, but for the parents to pull him out after 1 dose because he was sick? This child is fighting for his life and the parents are still trying to coddle him instead of trying to offer reassurance that things will get better hopefully with the treatment. Instead they have pulled him from the conventional treatment of choice by a Pediatric Oncologist who obviously knows more about this then we do and are basically signing his death certificate by following the direction of a Snake Oil Salesman (since you don't like witch doctor).
Look we can argue about this all week, as i enjoy a great heated debate as much as the next type A personality, But if this guys advice amounted to anything but a pipe dream, he would be a very VERY VERY rich man and there would be no debate.
But the facts show he has not cured anybody.
Ah after a quick google search of the guy, he is not even basing this off of traditional chinese medicine like a assumed. He took a course in american indian herbal medicine and tried to hide behind the Indian Church to avoid prosecution. A quick google of him will enlighten you i'm sure
Philip Cloudpiler Landis quite the guy
And a further search of the Indian forums from various tribes, show they all also think he is a fraud and detest him. Yeah quite the reputable character there. Nobody with an honest heart, or good intentions would do something like this...
He could only be adopted by a Native family, not a tribe. And even then that wouldn't entitle him to set up shop as a phony healer.
Did he have any reasoning behind the paranoid claim the govt wants to "repress" him? These are pretty straightforward fraud and theft cases. Landis took people's money, lied, and ran.
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No. 00-436
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 45
STATE OF MONTANA,
Plaintiff and Respondent,
v.
PHILIP R. LANDIS,
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Michael Prezeau, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Matthew R. Cleverly; Weinstein, Manley, Riley, Therriault & Singer,
Seattle, Washington
Brock Albin; Albin Law Office, Bozeman, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Cregg W. Coughlin,
Assistant Attorney General, Helena, Montana
Bernie Cassidy, Lincoln County Attorney; Robert Slomski, Deputy
County Attorney, Libby, Montana
Submitted on Briefs: September 27, 2001
Decided: March 12, 2002
BACKGROUND
¶6 Landis became associated with the community of Libby, Montana, through Terry Larimer (Larimer), Lincoln County Regional Director of Woodnet, an organization helping unemployed timber industry workers. Larimer invited Landis to give a presentation in Libby on growing, harvesting and marketing organic Reishi mushrooms for profit. During that presentation in October of 1997, Landis reported a high demand for Reishi mushrooms, and stated his company would train and certify people in growing and harvesting Reishi mushrooms for a fee of $3,600. Landis stated the training package included two video seminars, two hands-on seminars, and several sections of “distance learning materials??? comprised of educational text and short quizzes. He also stated his company would buy mushrooms harvested from certified growing operations or from the wild (wild-harvested).
¶7 During this first meeting, Landis distributed literature representing growers would gross approximately $70,000 a year and stated his company would reinvest money back into the community, creating up to 150 jobs. A spreadsheet included in Landis’ materials estimated each grower potentially could net approximately $80,000 in the fourth year of operation.
¶8 After the initial presentation, Larimer traveled to Idaho to meet with Landis about setting up his own growing operation. He subsequently paid Landis $3,600 and entered into a training contract for growing and harvesting Reishi mushrooms. A condition in Larimer’s contract specified that, after harvesting began, Landis would only buy back mushrooms grown from spawn--that is, mushroom cultures covering short wooden dowels used to innoculate logs--purchased from his company or a company he had approved.
¶9 Landis returned to Libby in February of 1998 and gave a second presentation which was substantially similar to the one he gave in October of 1997. At that meeting, several area residents, led by Lerah Parker (Parker), a local nursery owner, expressed interest in forming a cooperative with the object of obtaining training for the entire group and paying only one training fee. After the presentation, Larimer approached Parker and offered to sell his training contract to her group, and then join the group himself, in order to save money and training fees. Parker and Larimer consulted Landis and obtained his permission for the sale of Larimer’s contract to the group. The individual members of Parker’s group gave money to Parker for her purchase of the training contract and she subsequently purchased it on behalf of the informal cooperative, Northwest Montana Reishi (co-op).
¶10 The co-op commenced its training by distributing educational material sections, homework assignments and quizzes, a few of which were obtained from Larimer after the sale of the contract, and the rest supplied by Landis. The members met once a week to turn in homework and quizzes and to discuss issues related to their training. After the meetings, Parker would send the completed homework and quizzes to Landis at his home in Idaho for corrections and comments. Landis corrected and returned the first two sections, but claimed he did not receive any other materials from Parker.
¶11 As a continuation of its training, the co-op scheduled its first hands-on planting seminar with Landis for April 18, 1998, and then rescheduled the seminar for April 25, 1998, at Landis’ request. In advance of the training seminar, from late March to early April, Parker collected an additional $4,620 from the members of the group to order and pay for approximately 14,000 dowels of spawn from Landis. Landis confirmed in a mid-April e-mail to Parker that he had received payment for the order and informed Parker that production of the spawn was “on schedule.Huh In early April of 1998, Larimer sent approximately 15 pounds of wild-harvested mushrooms to Landis, relying on Landis’ initial representation that he would buy wild-harvested Reishi mushrooms. Landis stated he never received them.
¶12 On the morning of April 25, 1998, more than twenty people from the co-op, together with observers from an interested Idaho group, gathered at Parker’s nursery for the planting seminar. Just before the seminar was to begin, Landis telephoned both Larimer and Parker and stated he had been in a vehicle accident and did not know the location of his vehicle or the spawn the co-op had ordered. The group attempted to locate Landis’ wrecked vehicle and the spawn in order to carry on with the seminar, but were unable to obtain any information about the accident or the whereabouts of the vehicle. The training continued that day and members of the group planted spawn Parker had obtained from a company not pre-approved by Landis.
¶13 After Landis’ failure to attend the April 25, 1998 planting seminar, Parker stepped down as the leader of the co-op. James Myers (Myers), a licensed professional counselor, assumed the leadership role. Members of the co-op continued making inquiries into Landis’ accident in order to locate and retrieve the spawn, and the relationship between Landis and the co-op deteriorated rapidly. On April 30, 1998, Myers sent Landis a certified letter requesting return of the co-op’s money. When Myers did not receive the money by May 6, 1998, he notified the Lincoln County Sheriff’s Office, which initiated a criminal investigation.
Yeah i'm not arguing with you Vent, as i can also see it from the child's perspective. But im still of the opinion, that a parents religious/passive beliefs should not be a factor. As this is not the beliefs of the child, it is what he is taught to believe. That is not informed consent.
Im sure the child didn't fair well after the initial chemo, but for the parents to pull him out after 1 dose because he was sick? This child is fighting for his life and the parents are still trying to coddle him instead of trying to offer reassurance that things will get better hopefully with the treatment. Instead they have pulled him from the conventional treatment of choice by a Pediatric Oncologist who obviously knows more about this then we do and are basically signing his death certificate by following the direction of a Snake Oil Salesman (since you don't like witch doctor).
Look we can argue about this all week, as i enjoy a great heated debate as much as the next type A personality, But if this guys advice amounted to anything but a pipe dream, he would be a very VERY VERY rich man and there would be no debate.
But the facts show he has not cured anybody.
Ah after a quick google search of the guy, he is not even basing this off of traditional chinese medicine like a assumed. He took a course in american indian herbal medicine and tried to hide behind the Indian Church to avoid prosecution. A quick google of him will enlighten you i'm sure
Philip Cloudpiler Landis quite the guy
And a further search of the Indian forums from various tribes, show they all also think he is a fraud and detest him. Yeah quite the reputable character there. Nobody with an honest heart, or good intentions would do something like this...
He could only be adopted by a Native family, not a tribe. And even then that wouldn't entitle him to set up shop as a phony healer.
Did he have any reasoning behind the paranoid claim the govt wants to "repress" him? These are pretty straightforward fraud and theft cases. Landis took people's money, lied, and ran.
-----
No. 00-436
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 45
STATE OF MONTANA,
Plaintiff and Respondent,
v.
PHILIP R. LANDIS,
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Michael Prezeau, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Matthew R. Cleverly; Weinstein, Manley, Riley, Therriault & Singer,
Seattle, Washington
Brock Albin; Albin Law Office, Bozeman, Montana
For Respondent:
Hon. Mike McGrath, Attorney General; Cregg W. Coughlin,
Assistant Attorney General, Helena, Montana
Bernie Cassidy, Lincoln County Attorney; Robert Slomski, Deputy
County Attorney, Libby, Montana
Submitted on Briefs: September 27, 2001
Decided: March 12, 2002
BACKGROUND
¶6 Landis became associated with the community of Libby, Montana, through Terry Larimer (Larimer), Lincoln County Regional Director of Woodnet, an organization helping unemployed timber industry workers. Larimer invited Landis to give a presentation in Libby on growing, harvesting and marketing organic Reishi mushrooms for profit. During that presentation in October of 1997, Landis reported a high demand for Reishi mushrooms, and stated his company would train and certify people in growing and harvesting Reishi mushrooms for a fee of $3,600. Landis stated the training package included two video seminars, two hands-on seminars, and several sections of “distance learning materials??? comprised of educational text and short quizzes. He also stated his company would buy mushrooms harvested from certified growing operations or from the wild (wild-harvested).
¶7 During this first meeting, Landis distributed literature representing growers would gross approximately $70,000 a year and stated his company would reinvest money back into the community, creating up to 150 jobs. A spreadsheet included in Landis’ materials estimated each grower potentially could net approximately $80,000 in the fourth year of operation.
¶8 After the initial presentation, Larimer traveled to Idaho to meet with Landis about setting up his own growing operation. He subsequently paid Landis $3,600 and entered into a training contract for growing and harvesting Reishi mushrooms. A condition in Larimer’s contract specified that, after harvesting began, Landis would only buy back mushrooms grown from spawn--that is, mushroom cultures covering short wooden dowels used to innoculate logs--purchased from his company or a company he had approved.
¶9 Landis returned to Libby in February of 1998 and gave a second presentation which was substantially similar to the one he gave in October of 1997. At that meeting, several area residents, led by Lerah Parker (Parker), a local nursery owner, expressed interest in forming a cooperative with the object of obtaining training for the entire group and paying only one training fee. After the presentation, Larimer approached Parker and offered to sell his training contract to her group, and then join the group himself, in order to save money and training fees. Parker and Larimer consulted Landis and obtained his permission for the sale of Larimer’s contract to the group. The individual members of Parker’s group gave money to Parker for her purchase of the training contract and she subsequently purchased it on behalf of the informal cooperative, Northwest Montana Reishi (co-op).
¶10 The co-op commenced its training by distributing educational material sections, homework assignments and quizzes, a few of which were obtained from Larimer after the sale of the contract, and the rest supplied by Landis. The members met once a week to turn in homework and quizzes and to discuss issues related to their training. After the meetings, Parker would send the completed homework and quizzes to Landis at his home in Idaho for corrections and comments. Landis corrected and returned the first two sections, but claimed he did not receive any other materials from Parker.
¶11 As a continuation of its training, the co-op scheduled its first hands-on planting seminar with Landis for April 18, 1998, and then rescheduled the seminar for April 25, 1998, at Landis’ request. In advance of the training seminar, from late March to early April, Parker collected an additional $4,620 from the members of the group to order and pay for approximately 14,000 dowels of spawn from Landis. Landis confirmed in a mid-April e-mail to Parker that he had received payment for the order and informed Parker that production of the spawn was “on schedule.Huh In early April of 1998, Larimer sent approximately 15 pounds of wild-harvested mushrooms to Landis, relying on Landis’ initial representation that he would buy wild-harvested Reishi mushrooms. Landis stated he never received them.
¶12 On the morning of April 25, 1998, more than twenty people from the co-op, together with observers from an interested Idaho group, gathered at Parker’s nursery for the planting seminar. Just before the seminar was to begin, Landis telephoned both Larimer and Parker and stated he had been in a vehicle accident and did not know the location of his vehicle or the spawn the co-op had ordered. The group attempted to locate Landis’ wrecked vehicle and the spawn in order to carry on with the seminar, but were unable to obtain any information about the accident or the whereabouts of the vehicle. The training continued that day and members of the group planted spawn Parker had obtained from a company not pre-approved by Landis.
¶13 After Landis’ failure to attend the April 25, 1998 planting seminar, Parker stepped down as the leader of the co-op. James Myers (Myers), a licensed professional counselor, assumed the leadership role. Members of the co-op continued making inquiries into Landis’ accident in order to locate and retrieve the spawn, and the relationship between Landis and the co-op deteriorated rapidly. On April 30, 1998, Myers sent Landis a certified letter requesting return of the co-op’s money. When Myers did not receive the money by May 6, 1998, he notified the Lincoln County Sheriff’s Office, which initiated a criminal investigation.
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DrankTheKoolaid
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¶14 The State of Montana (State) charged Landis with one count of felony theft and one count of felony deceptive practices. At his arraignment on May 17, 1999, Landis entered “not guilty??? pleas to both charges. Approximately three months after the July 22, 1999, omnibus hearing, Landis filed a motion for a probable cause hearing which the District Court denied as untimely. Landis filed a motion to dismiss, which asserted lack of evidence but in essence argued lack of probable cause to support the charges, on November 18, 1999, together with another motion for a probable cause hearing. The court also denied those motions.
¶15 Landis’ jury trial began on December 7, 1999, and he moved for a directed verdict of acquittal at the close of the State’s case-in-chief. The District Court denied the motion and the jury found Landis guilty of the felony offenses of theft and deceptive practices. The District Court sentenced him to a 10-year suspended sentence on each count and entered judgment.
¶16 In February of 2000, Landis filed a motion for a new trial and a request for recusal, a notice of appeal, a motion to stay imposition of sentence pending appeal, and a motion to alter or amend judgment. Landis subsequently withdrew his notice of appeal pending the resolution of his other post-trial motions. The District Court denied Landis’ motions for a new trial and request for recusal and to alter or amend judgment, but granted his request to stay imposition of sentence pending appeal. Landis appeals.
DISCUSSION
¶17 1. Did the District Court err in refusing to dismiss the case for lack of probable cause?
¶18 As set forth above, the District Court denied Landis’ motions for a probable cause hearing and to dismiss for lack of probable cause. On appeal, Landis continues to assert that the charges against him are not supported by probable cause. In response, the State contends that the District Court’s basis for denying his original motion, namely, lack of timeliness, is correct and that Landis has failed to address that basis. Landis did not reply to the State’s contention.
[Legal rules omitted]
Thus, § 46-13-101(1), MCA, required Landis to raise the probable cause issue “at or before the omnibus hearing.Huh His omnibus hearing occurred on July 22, 1999, and Landis filed his probable cause-related motions in October and November of 1999.
Accordingly, Landis’ motions were not timely filed under § 46-13-101(1), MCA, and, pursuant to § 46-13-101(2), MCA, he waived any issue of lack of probable cause.
[Montana legal procedures omitted]
¶24 Landis requested a directed verdict of acquittal on the theft and deceptive practices charges at the close of the State’s case-in-chief. The District Court denied Landis’ request on the grounds that sufficient conflicting evidence existed in the record with respect to both counts to require factual determinations by the jury. While Landis couches his assertions of error in terms of “matters of law,??? the questions he presents in this issue clearly revolve on whether the State presented sufficient evidence on the elements of the charged offenses.
¶25 With regard to the theft offense, the State charged that, as a common scheme, Landis worked between December of 1997 and May of 1998 to deprive owners of $4,620. Landis argues that the State did not produce evidence that he deprived an “owner??? of property.
[Montana legal definitions deleted]
¶27 Landis argues he took money from the co-op, which is not a “Person??? under § 45-2-101(56), MCA, because it never became a legal entity. He further reasons that, if the co-op is not a “Person,??? it cannot be an “Owner??? and, therefore, the State did not present evidence establishing he took money from an “Owner.Huh His argument is without merit.
¶28 Under the statutory definition, a “'Person' includes an individual . . . .Huh See § 45-2-101(56),
MCA. The record in the present case is undisputed that, while Parker forwarded the $4,620 to Landis “on behalf of??? the informal co-op, numerous individuals provided the money to Parker to pay Landis for the spawn. We conclude that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the “Owner??? element of the theft offense beyond a reasonable doubt. Landis does not challenge the sufficiency of the evidence regarding any other essential element of the theft offense.
¶29 With regard to the deceptive practices offense, the State charged that, as a common scheme, Landis made false or deceptive statements between December of 1997 and May of 1998 for the purpose of promoting or procuring the sale of Reishi spawn and training. A person commits deceptive practices when he or she purposely or knowingly makes a false or deceptive statement to any person for the purpose of promoting or procuring the sale of property or services. Section 45-6-317(1)(b), MCA. Landis claims his only deceptive statements were related to the vehicle accident, the accident occurred after he received the money from Parker and, therefore, the deceptive statements were not made for the purpose of promoting or procuring the sale of the spawn or the training.
¶30 The first problem with Landis’ argument is that it focuses solely on the evidence most favorable to him--namely, his testimony that he only made false statements regarding the vehicle accident--and ignores the State’s evidence in support of its common scheme charge alleging Landis made deceptive statements over the course of his relationship with the members of the co-op for the purpose of promoting the sale of Reishi spawn and related training. The second problem, of course, is that it was within the province of the jury to determine the credibility of witnesses and the weight of conflicting evidence. See State v. Weitzel, 2000 MT 86, ¶ 20, 299 Mont. 192, ¶ 20, 998 P.2d 1154, ¶ 20 (citations omitted). So long as sufficient evidence existed on which a rational jury could find the elements of the charged offense beyond a reasonable doubt, the District Court did not abuse its discretion in denying Landis’ motion for a directed verdict on the deceptive practices charge. See Hall, ¶ 19.
¶31 It is true that the only direct evidence of Landis’ false or deceptive statements came from Landis himself, and that evidence limited his false statements to those made after he had the money from members of the co-op. It is equally true that no other person involved in this case was in a position to testify directly to lies or deceptions made by Landis.
[Montana rules of law deleted]
¶33 In the present case, the record reflects that, in his presentations, including the presentation in February of 1998 to individuals who later formed the informal co-op, Landis stated that in exchange for the $3,600 training fee, trainees would become certified to grow and harvest Reishi mushrooms through video seminars, two hands-on planting seminars, and written educational materials followed by short quizzes. Larimer and Myers also testified Landis distributed a spreadsheet indicating growers could net approximately $80,000 after tax in their fourth year of operation. Contrary to Landis’ representations, the members of the co-op did not receive video or hands-on training. Nor did any of the members become certified in, or make any profit from, his program.
¶34 The evidence at trial also reflects that the literature Landis distributed at his presentations stated tens of thousands of dollars would be reinvested into local rural development agencies by Landis’ company, Idaho Reishi, and that 150 jobs would be created in every participating community. In fact, Landis’ company did not invest money into the Libby community, nor were any new jobs created there. According to the testimony of Larimer and Myers, Landis also stated in both meetings that he would purchase wild-harvested mushrooms from growers as a way for them to fund their growing operations. Larimer testified he sent 15-pounds of wild-harvested mushrooms to Landis in early April and never received payment. Landis claimed he never received the mushrooms.
¶35 The record also reflects that, after the informal co-op organized in February of 1998, members of the group completed training sections one, two, three, four and seven in preparation for the first hands-on planting seminar. Parker testified she mailed the individually-completed sections one and two to Landis in late March of 1998, and he corrected and returned them. Parker also testified she sent Landis completed sections three, four and seven in three separate mailings from late March to mid-April of 1998. Similar to his testimony regarding Larimer’s mushrooms, Landis claimed he never received these sections.
¶36 In addition, Parker sent Landis $4,620 in early April of 1998 to purchase spawn for the upcoming planting seminar. Parker testified Landis e-mailed her stating he had received payment for the spawn and that he would deliver the spawn on April 25, 1998, at the planting seminar. For approximately two weeks in April, before Landis’ fictitious vehicle accident, Larimer and Parker testified they were unable to reach him by e-mail, telephone, or through the postal service. Landis claimed he was in the process of moving offices. Ultimately, Landis did not attend the April 25, 1998 planting seminar or deliver the spawn on that date as previously agreed.
¶14 The State of Montana (State) charged Landis with one count of felony theft and one count of felony deceptive practices. At his arraignment on May 17, 1999, Landis entered “not guilty??? pleas to both charges. Approximately three months after the July 22, 1999, omnibus hearing, Landis filed a motion for a probable cause hearing which the District Court denied as untimely. Landis filed a motion to dismiss, which asserted lack of evidence but in essence argued lack of probable cause to support the charges, on November 18, 1999, together with another motion for a probable cause hearing. The court also denied those motions.
¶15 Landis’ jury trial began on December 7, 1999, and he moved for a directed verdict of acquittal at the close of the State’s case-in-chief. The District Court denied the motion and the jury found Landis guilty of the felony offenses of theft and deceptive practices. The District Court sentenced him to a 10-year suspended sentence on each count and entered judgment.
¶16 In February of 2000, Landis filed a motion for a new trial and a request for recusal, a notice of appeal, a motion to stay imposition of sentence pending appeal, and a motion to alter or amend judgment. Landis subsequently withdrew his notice of appeal pending the resolution of his other post-trial motions. The District Court denied Landis’ motions for a new trial and request for recusal and to alter or amend judgment, but granted his request to stay imposition of sentence pending appeal. Landis appeals.
DISCUSSION
¶17 1. Did the District Court err in refusing to dismiss the case for lack of probable cause?
¶18 As set forth above, the District Court denied Landis’ motions for a probable cause hearing and to dismiss for lack of probable cause. On appeal, Landis continues to assert that the charges against him are not supported by probable cause. In response, the State contends that the District Court’s basis for denying his original motion, namely, lack of timeliness, is correct and that Landis has failed to address that basis. Landis did not reply to the State’s contention.
[Legal rules omitted]
Thus, § 46-13-101(1), MCA, required Landis to raise the probable cause issue “at or before the omnibus hearing.Huh His omnibus hearing occurred on July 22, 1999, and Landis filed his probable cause-related motions in October and November of 1999.
Accordingly, Landis’ motions were not timely filed under § 46-13-101(1), MCA, and, pursuant to § 46-13-101(2), MCA, he waived any issue of lack of probable cause.
[Montana legal procedures omitted]
¶24 Landis requested a directed verdict of acquittal on the theft and deceptive practices charges at the close of the State’s case-in-chief. The District Court denied Landis’ request on the grounds that sufficient conflicting evidence existed in the record with respect to both counts to require factual determinations by the jury. While Landis couches his assertions of error in terms of “matters of law,??? the questions he presents in this issue clearly revolve on whether the State presented sufficient evidence on the elements of the charged offenses.
¶25 With regard to the theft offense, the State charged that, as a common scheme, Landis worked between December of 1997 and May of 1998 to deprive owners of $4,620. Landis argues that the State did not produce evidence that he deprived an “owner??? of property.
[Montana legal definitions deleted]
¶27 Landis argues he took money from the co-op, which is not a “Person??? under § 45-2-101(56), MCA, because it never became a legal entity. He further reasons that, if the co-op is not a “Person,??? it cannot be an “Owner??? and, therefore, the State did not present evidence establishing he took money from an “Owner.Huh His argument is without merit.
¶28 Under the statutory definition, a “'Person' includes an individual . . . .Huh See § 45-2-101(56),
MCA. The record in the present case is undisputed that, while Parker forwarded the $4,620 to Landis “on behalf of??? the informal co-op, numerous individuals provided the money to Parker to pay Landis for the spawn. We conclude that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the “Owner??? element of the theft offense beyond a reasonable doubt. Landis does not challenge the sufficiency of the evidence regarding any other essential element of the theft offense.
¶29 With regard to the deceptive practices offense, the State charged that, as a common scheme, Landis made false or deceptive statements between December of 1997 and May of 1998 for the purpose of promoting or procuring the sale of Reishi spawn and training. A person commits deceptive practices when he or she purposely or knowingly makes a false or deceptive statement to any person for the purpose of promoting or procuring the sale of property or services. Section 45-6-317(1)(b), MCA. Landis claims his only deceptive statements were related to the vehicle accident, the accident occurred after he received the money from Parker and, therefore, the deceptive statements were not made for the purpose of promoting or procuring the sale of the spawn or the training.
¶30 The first problem with Landis’ argument is that it focuses solely on the evidence most favorable to him--namely, his testimony that he only made false statements regarding the vehicle accident--and ignores the State’s evidence in support of its common scheme charge alleging Landis made deceptive statements over the course of his relationship with the members of the co-op for the purpose of promoting the sale of Reishi spawn and related training. The second problem, of course, is that it was within the province of the jury to determine the credibility of witnesses and the weight of conflicting evidence. See State v. Weitzel, 2000 MT 86, ¶ 20, 299 Mont. 192, ¶ 20, 998 P.2d 1154, ¶ 20 (citations omitted). So long as sufficient evidence existed on which a rational jury could find the elements of the charged offense beyond a reasonable doubt, the District Court did not abuse its discretion in denying Landis’ motion for a directed verdict on the deceptive practices charge. See Hall, ¶ 19.
¶31 It is true that the only direct evidence of Landis’ false or deceptive statements came from Landis himself, and that evidence limited his false statements to those made after he had the money from members of the co-op. It is equally true that no other person involved in this case was in a position to testify directly to lies or deceptions made by Landis.
[Montana rules of law deleted]
¶33 In the present case, the record reflects that, in his presentations, including the presentation in February of 1998 to individuals who later formed the informal co-op, Landis stated that in exchange for the $3,600 training fee, trainees would become certified to grow and harvest Reishi mushrooms through video seminars, two hands-on planting seminars, and written educational materials followed by short quizzes. Larimer and Myers also testified Landis distributed a spreadsheet indicating growers could net approximately $80,000 after tax in their fourth year of operation. Contrary to Landis’ representations, the members of the co-op did not receive video or hands-on training. Nor did any of the members become certified in, or make any profit from, his program.
¶34 The evidence at trial also reflects that the literature Landis distributed at his presentations stated tens of thousands of dollars would be reinvested into local rural development agencies by Landis’ company, Idaho Reishi, and that 150 jobs would be created in every participating community. In fact, Landis’ company did not invest money into the Libby community, nor were any new jobs created there. According to the testimony of Larimer and Myers, Landis also stated in both meetings that he would purchase wild-harvested mushrooms from growers as a way for them to fund their growing operations. Larimer testified he sent 15-pounds of wild-harvested mushrooms to Landis in early April and never received payment. Landis claimed he never received the mushrooms.
¶35 The record also reflects that, after the informal co-op organized in February of 1998, members of the group completed training sections one, two, three, four and seven in preparation for the first hands-on planting seminar. Parker testified she mailed the individually-completed sections one and two to Landis in late March of 1998, and he corrected and returned them. Parker also testified she sent Landis completed sections three, four and seven in three separate mailings from late March to mid-April of 1998. Similar to his testimony regarding Larimer’s mushrooms, Landis claimed he never received these sections.
¶36 In addition, Parker sent Landis $4,620 in early April of 1998 to purchase spawn for the upcoming planting seminar. Parker testified Landis e-mailed her stating he had received payment for the spawn and that he would deliver the spawn on April 25, 1998, at the planting seminar. For approximately two weeks in April, before Landis’ fictitious vehicle accident, Larimer and Parker testified they were unable to reach him by e-mail, telephone, or through the postal service. Landis claimed he was in the process of moving offices. Ultimately, Landis did not attend the April 25, 1998 planting seminar or deliver the spawn on that date as previously agreed.
Sasha
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While i agree that you never know if the chemo would help until you give it a chance, and you cant get magically better without side effects, a child should have every right to give up as an adult has. I would agree that he was not capable of the decision had he been younger but a thirteen year old is old enough to understand life and death and cancer as an adult can.
Although there are parents who would not hav e their childs best interest at heart there is nothing to indicate that this is one of those cases. the government doesnt have to sit and watch the child suffer and die. the parents do. i am hard pressed to believe that an anonymous government agent will have the childs interest in mind...sometimes their best interest is to die peacefully without the agony of chemo.
Although there are parents who would not hav e their childs best interest at heart there is nothing to indicate that this is one of those cases. the government doesnt have to sit and watch the child suffer and die. the parents do. i am hard pressed to believe that an anonymous government agent will have the childs interest in mind...sometimes their best interest is to die peacefully without the agony of chemo.
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DrankTheKoolaid
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And after reading the some of the court transcripts, it is even more glaring that this child is unable to make an informed decision. He has learning disabilities AND is unable to read. How in the world can he make this decision.
Funny though it also shows him as a Tribal Elder and medicine man in the so called tribe, that the bureau of indian affairs and the federal court system alike do not recognize as a tribe. Elder at 13 eh... this from the tribe that wants an initial fee to join and $100 a month to stay in it, otherwise they can no longer help you.
Disgusting
And after reading the some of the court transcripts, it is even more glaring that this child is unable to make an informed decision. He has learning disabilities AND is unable to read. How in the world can he make this decision.
Funny though it also shows him as a Tribal Elder and medicine man in the so called tribe, that the bureau of indian affairs and the federal court system alike do not recognize as a tribe. Elder at 13 eh... this from the tribe that wants an initial fee to join and $100 a month to stay in it, otherwise they can no longer help you.
Disgusting
firecoins
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I am an atheist. It is my "religious" belief that the parents are in fact committing murder from switching from a scientifically proven medical treatment to so called alternative treatments which have no scientific backing and does not work.
We have a thread already where parents were charged for neglect because an infant died of infection related to untreated eczema. From that article:
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daedalus
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VentMedic, this is murder. Plain and simple. When something is killing your child (the lymphoma) and you have the means to stop it (chemo) and refuse to do so, you murder the child.
We all know that Hodgkin's lymphoma is easily treated and rarely kills with that proper treatment. In addition, the chemo is a needed evil and the ill effects will only last for the short duration of the treatment, compared to the literal life time of benefit that can be achieved here.
We all know that Hodgkin's lymphoma is easily treated and rarely kills with that proper treatment. In addition, the chemo is a needed evil and the ill effects will only last for the short duration of the treatment, compared to the literal life time of benefit that can be achieved here.
Foxbat
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Aren't there some court precendents which allow Jehova's witnesses to decide against blood transfusions to their children?
DrankTheKoolaid
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Yes there is, but even members of there own Sec are fighting against it as they realize it's ridiculous. They now allow hemogoblins
http://www.ajwrb.org/
Yes there is, but even members of there own Sec are fighting against it as they realize it's ridiculous. They now allow hemogoblins
http://www.ajwrb.org/
So you are saying many hospitals in this country could be quilty of attempting to murder because they have decided to treat their patients by other means than chemo? I say attempting to murder because many patients can survive by other treatments. We do give patients options as they are available. Patients have the right to consult with other physicians for different opinions and treatment methods. When you work in an area that is multinational with many different cultures, religions and beliefts, the physcians and other healthcare providers must understand and respect this when at all possible. If they are not the best facility to provide care for that patient, they must realize this and refer to another. The case with Jehovah's Witnesses patient is a good example. For cardiac surgery they may not need blood products for surgery if they are taken to a facility that can do it minimally invasively or with a cell saver. Other facilities may not have this capability and will just want to press legal action against the patient. Egos may not allow them to refer to another facility.
Funny, after reading some of the responses here it is easy to see how difficult it was to convince some in EMS to give up the MAST or to incorporate new ideas. Medicine is constantly changing as new ways of doing things are discovered. Those that only have one recipe to offer a patient may be selling them short.
Read a little and see what is out there in the world of medicine.