The opinion
No. 89-450
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
MARK E. BROWN, - ,-- 1
Defendant and Appellant.
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of Beaverhead,
The Honorable Frank Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Vincent J. Kozakiewicz, Kozakiewicz Law Office,
Dillon, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
George Schunk, Assistant Attorney General, Helena,
Montana
Thomas R. Scott, Beaverhead County Attorney, Dillon,
Montana
Submitted on Briefs: February 1, 1990
Filed:
Justice Diane G. Barz delivered the Opinion of the Court.
Mark E. Brown, defendant, was charged by information with
felony assault, driving while under the influence, and driving
while license suspended or revoked in violation of 8 8 45-5-
202 (2) (c), 61-8-401 (1)(a) and 61-5-212 (1), MCA, respectively. A
jury found defendant guilty on all counts on March 17, 1989.
Defendant appeals the decision by the District Court of the Fifth
Judicial District, Beaverhead County, allowing the introduction of
evidence of other crimes, wrongs or acts. We reverse the District
Court and remand for a new trial.
On October 21, 1988, the defendant was released from the
Beaverhead County Jail at approximately 9:00 a.m. Defendant
proceeded to the Dillon Hotel and Bar, the Lobby Bar, and a local
area inhabited by transient individuals known as the Itcabbage
patch.'' At the cabbage patch, defendant made arrangements to
purchase a blue 1963 Mercury Comet. Defendant's driver's license
was suspended or revoked at that time.
At approximately 1:00 p.m. on the same day, Terry Ersland was
stopped at a downtown intersection when she noticed defendant
honking his car horn behind her. Ersland was accompanied by two
friends. All three individuals testified at the trial that
defendant repeatedly honked his horn and then either "rammedttor
llbumpedlt
their vehicle several times from behind. Defendant then
veered around them and proceeded at a high rate of speed down a
city street. During this time, defendant, in his own words, ''was
a little bit more than intoxicated." Ersland and her friends then
proceeded directly to the police station to report the incident.
While Ersland and her friends were at the police station
relating the incident, defendant arrived at the police station to
pick up his belongings. Ersland and her friends then identified
defendant as the driver of the blue car that ran into them at the
downtown intersection. Officer Arthur Cranford of the Dillon City
Police informed defendant that they had a report of an accident in
which he had been the driver. Defendant denied any involvement and
later testified at trial that a man named "Ed1' drove him to the
county jail. When Officer Cranford informed defendant he was under
arrest, defendant became belligerent and resisted booking.
Defendant's resistance escalated with defendant striking Officer
Cranford in the face and attempting to choke the officer. Only
after Officer Cranford drew his revolver was defendant controlled.
On November 4, 1988, defendant was charged by information with
the offenses of felony assault in violation of 9 45-5-202 (2)(c),
MCA, driving while under the influence, a misdemeanor, in violation
of 5 61-8-401 (1)(a), MCA, and driving while license suspended or
revoked, a misdemeanor, in violation of 9 61-5-212(1), MCA. A jury
trial was held March 16 and 17, 1989. Prior to the trial, on
February 24, 1989, the State filed a notice of intent to introduce
evidence of other crimes, wrongs or acts. In particular, the State
cited the following acts committed by defendant for the purpose of
proving motive, intent, preparation, plan, knowledge or common
scheme or plan.
Auqust 12, 1988:
Theft, a misdemeanor
Driving while under the influence, a misdemeanor
Leaving the scene of an accident, a misdemeanor
Operating a vehicle without liability insurance,
a misdemeanor
Resisting arrest, a misdemeanor
September 5, 1988:
Disorderly conduct, a misdemeanor
Resisting arrest, a misdemeanor
Assault, a misdemeanor
September 6, 1988:
Assault, a misdemeanor
October 11, 1988:
Disorderly conduct, a misdemeanor
In the omnibus hearing on pretrial matters, the District Court
ruled that it would allow the introduction of evidence of other
crimes, acts or wrongs and therefore denied defendant's objection
to the introduction of the above-cited acts. During the State's
case-in-chief, the evidence of prior crimes was introduced by the
State and objected to by defendant. The jury returned a guilty
verdict on all counts.
The sole issue raised on appeal is whether the District Court
erred in allowing the introduction of evidence of other crimes,
wrongs or acts.
Rule 404(b), M.R.Evid., codifies the law regarding the
admission of other crimes, wrongs or acts. his rule provides
that :
Character evidence not admissible to prove
conduct, exceptions; other crimes; character
in issue.
(b) Other crimes, wrongs, acts. Evidence of
other crimes, wrongs, or acts is not
admissible to prove the character of a person
in order to show that he acted in conformity
therewith. It may, however, be admissible for
other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident.
In this case, the State argues that the other crimes evidence was
offered for the purpose of proving defendant's motive and intent
with respect to his conduct at issue in the proceedings. After
applying the four part test that this Court first recognized in
State v. Just (1979), 184 Mont. 262, 602 P.2d 957, we hold that
the District Court erred in allowing the introduction of acts
committed by defendant between August 11, 1988 and October 12,
1988.
The four substantive factors that the State must demonstrate
in order to introduce evidence of other crimes or wrongful acts are
that the other crimes or wrongful acts are (1) similar in nature;
(2) not remote in time; (3) tend to establish a common scheme, plan
or system; and (4) that the probative value of the other crimes or
wrongful acts is not substantially outweighed by their prejudice
to defendant. State v. Keefe (1988), 232 Mont. 258, 266, 759 P.2d
128, 133; Just, 184 Mont. at 269, 602 P.2d at 961. Applying the
facts of the present case to these four factors, we find that the
State failed to prove the third and fourth factors.
We agree with the State that under these set of facts, the
acts committed by defendant between August 11, 1988 and October 12,
1988 are not remote in time, however, we also determine that the
acts do not establish a common scheme, plan or system. While the
acts committed between August 11, 1988 and October 12, 1988 may be
similar in nature in some respects to defendant's conduct on
October 21, 1988, this does not necessarily prove that the acts
tend toward establishing a common scheme, plan or system.
In particular, the State introduced evidence of incidents that
occurred on August 12, 1988 and September 5 and 6, 1988. On these
days, the State introduced evidence that defendant was intoxicated
and verbally and physically abusive when police officers attempted
to restrain him or arrest him. The State argues that this evidence
was admitted to show that defendant "intended to inflict harm upon
Officer Cranford, e.q. , the assault on the officer was neither a
mistake nor accidental.'I The introduced evidence in this case
pertaining to the incidents on August 12 and September 5 and 6,
1988 do not constitute a common scheme, plan or system. On the
contrary, the record demonstrates that defendant's acts lacked any
common scheme or plan and were instead spontaneous acts dictated
by his character and the situation at hand. In addition, the cited
acts' probative value does not outweigh the prejudice that flows
to defendant under these circumstances.
In light of the facts of this case, we hold that the District
Court erred in allowing under Rule 404(b), M.R.Evid., evidence of
acts committed by defendant between August 11, 1988 and October 12,
1988. The crimes committed between these dates go towards
defendant's character or trait of his character and therefore are
not admissible for the purpose of proving that he acted in
conformity therewith on a particular occasion. Rule 404(a),
M.R.Evid.
Reversed and remanded for a new trial.
We concur:
Justices
d
Chief Justice J. A. Turnage, dissenting.
I respectfully dissent.
The sole issue on appeal is whether there is error in the
introduction of evidence of other crimes, wrongs or acts.
The majority finds error in a failure to satisfy the third
requirement of State v. Just (1979), 184 Mont. 262, 602 P.2d 957,
in that the acts at issue do not tend toward establishing a common
scheme, plan or system.
I believe the record sufficiently satisfies this requirement
of Just, the evidence tends to establish a common system or scheme
of the defendant. Under Rule 404(b) the evidence does establish
the defendant's opportunity, motive and intent. Further, the
language of Rule 404 (b), M.R. Evid. , provides a basis for sustaining
the introduction of the evidence at issue. The rule provides that
such evidence may be admissible for other purposes, such as proof
of motive, op~ortunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
It first should be noted that the evidence relating to the
incident of October 11, 1988, was introduced by the defendant on
direct examination and not by the prosecution. This incident did
not involve a violent act on the part of the defendant.
The other three incidents, August 12, 1988, September 5, 1988,
and September 6, 1988, as well as the crime for which the defendant
was convicted and now appeals, all involved opportunity, intent,
motive or scheme of the defendant to violently attack an arresting
officer upon being placed under arrest.
THE INCIDENT OF AUGUST 12, 1988
At trial, Officer Pallas testified in substance: A citizen
called the police department in Dillon and reported that someone
had driven a vehicle into a telephone pole. In response, Officer
Pallas found the defendant intoxicated in the automobile that
defendant had driven into a telephone pole. The car was severely
damaged. Defendant was trying to get the car to run so he could
proceed on his way. The defendant's face had hit the steering
wheel or the windshield and he was bloodied. The officer, being
concerned about defendant's physical condition, called for an
ambulance. Then the fun began. The defendant, obviously intoxi-
cated, fought with both the officer and the ambulance crew. When
the defendant was advised that he was under arrest, he said, "I
ain't going nowhere with you, you ------- pigs." The defendant
kicked the officer in the chest and fought with the ambulance crew
and the officer until they finally transported him to the hospital
for examination.
THE INCIDENT O F SEPTEPlBER 5 AND 6 I 1988
Officer Reeder, Beaverhead County sheriff's department,
testified to the following.
At approximately 11:OO p.m. on September 5, 1988, a call came
to the sheriff's office from the manager of Kentucky Fried Chicken
who reported that a man was sleeping in her vehicle.
When Officer Reeder arrived he found the defendant either
asleep or passed out in the manager's vehicle. The officer had
difficulty in arousing the defendant. When he did arouse him and
identified himself as a sheriff's officer, the defendant told him
to Itgoget ------.I1 The sheriff's deputy had to struggle with the
defendant to get him out of the vehicle. When he did get him out
and advised him he was under arrest, the defendant struck the
officer in the testicles. After more struggling, the defendant
was finally subdued. He fought all the way to the jail. At the
jail it took four officers to place him in a padded cell where he
would presumably not injure himself.
The transcript is full of interesting statements about
defendant's profanity and his spitting in the faces of officers.
I believe the record clearly indicates that the evidence of
defendant's other prior crimes, wrongs or acts tends to prove the
defendant did have opportunity, intent, motive, or common scheme
when he was arrested, when he was full of strong drink, to fight
and resist the arresting officers right to the jail or hospital.
I believe Rule 404(b), M.R.Evid. and the Just standards have
been met. In this case the defendant was convicted of assaulting
a law enforcement officer. The evidence introduced by the
prosecution in three of the above incidents clearly established
that the defendant used the opportunity of arrest to assault the
law enforcement officer or officers involved. The evidence of
defendant's conduct was probative and did establish opportunity,
intent, motive or common scheme.
It would be a different matter if the evidence was introduced
to only prove that in defendant's character there abides dislike
of law enforcement officers. Such is not the facts in this case
where such dislike escalates into violent assault.
I would affirm.
f kt T W
~ -
Chief Justice
1