State v. Stout

June 22 2010

DA 09-0112

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 137

STATE OF MONTANA,

Plaintiff and Appellee,

v.

ANNE MARIE STOUT,

Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-First Judicial District,

In and For the County of Ravalli, Cause No. DC-07-94

Honorable Jeffrey H. Langton, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Joslyn Hunt, Chief Appellate Defender; Koan Mercer, Assistant

Appellate Defender, Helena, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General; C. Mark Fowler,

Assistant Attorney General, Helena, Montana

George H. Corn, Ravalli County Attorney; T. Geoffrey Mahar,

William Fulbright, Deputy County Attorneys, Hamilton, Montana

Submitted on Briefs: March 3, 2010

Decided: June 22, 2010

Filed:

__________________________________________

Clerk

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Anne Marie Stout (Stout) appeals from her conviction and life sentence for the

crime of deliberate homicide arising from the death of her husband Bill. We affirm the

conviction and life sentence.

¶2 Stout presents the following issues for review:

¶3 Issue One: Whether the District Court properly allowed the expert reports that had

been admitted into evidence into the jury room during deliberations.

¶4 Issue Two: Whether the District Court properly admitted evidence at trial

concerning Stout’s attempts to falsely implicate another woman in a campaign to harass

and intimidate Stout’s husband and family.

¶5 Issue Three: Whether the District Court properly admitted opinion testimony from

a police officer concerning blood evidence at the scene.

¶6 Issue Four: Whether the District Court erred in refusing to suppress evidence

seized under the authority of a search warrant from a motorcycle saddlebag.

¶7 Issue Five: Whether the District Court had jurisdiction to order that the sentence

be modified after conclusion of the appeal to include reimbursement for costs of appellate

counsel.

BACKGROUND

¶8 Bill and Anne Stout lived in a rural area near Darby, Montana, with their two teen-

aged sons, one of whom was attending college out of state. Bill died in their home from a

single gunshot wound to the head on June 9, 2007, between 10:00 p.m. and midnight.

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Anne and Bill had been alone in the house that evening until their younger son returned

home about midnight. Bill planned to go horseback riding with a friend the next day, and

at about 10:00 p.m. talked to the friend by phone about the outing. Stout claimed that she

spent the night of June 9 with Bill in their bedroom and that he was not feeling well the

next morning. When Bill’s friend called the next morning about the ride, Stout told him

Bill was ill and was not going to go.

¶9 On June 10, Stout and the younger son drove to Missoula for a shopping trip,

returning home late in the afternoon. The younger son did not see his father the prior

evening, or before leaving for Missoula with Stout the next morning. She and the son

arrived home from the shopping trip to find Bill’s body in bed. She called 911 about 4:30

p.m.

¶10 The murder weapon was a pistol owned by Bill. Ten days before his death he

reported to the Ravalli County Sheriff that the pistol, holster and ammunition were

missing. Ambulance personnel and officers who responded to the 911 call from Stout

confirmed that Bill was dead and that no gun was found in the room with him. Officers

applied for and obtained a search warrant. The gun was subsequently located in the

saddlebag of Bill’s motorcycle in the garage of the house. The holster was found in a

laundry hamper under washed but wet clothing, and the ammunition was found on top of

Bill’s gun safe. Three rounds were missing from the center of the box, so that unless the

box was completely opened it appeared upon opening from the end that it was full.

¶11 Officers found what appeared to be a laundry washing project that was never

finished. Wet laundry, smelling strongly of bleach, was in the hamper but had not been

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dried. A neighbor whose window faced Bill and Anne’s house reported seeing lights on

in the bedroom area in the middle of the night, on the night before Anne and the son went

to Missoula. The neighbors felt that seeing the light on at that time and location was

unusual.

¶12 The bullet that killed Bill and the spent shell casing were recovered from the bed

where he was found. A spent shell casing from the pistol was found in the yard, and an

un-fired round was in the chamber of the pistol, accounting for the three rounds missing

from the ammunition box. Expert botanical examination of a plant blossom found in the

ammunition box showed it came from a bush in the yard that had first bloomed for the

season at least six days after Bill reported the gun missing. Expert analysis showed that

the two spent shell casings came from Bill’s gun, as did the bullet that killed him. Stout

testified that she did not know anything about the blossom in the ammunition box, but

that she assumed that the expert’s analysis of it was correct. At the time of the search

both Stout and her son told officers that Bill’s gun was missing.

¶13 The search also revealed a latex glove imbedded with gunshot residue on the

outside and Stout’s DNA on the inside. The glove was located in the same laundry

hamper as the holster and wet laundry, but Stout testified that she did not know how her

DNA got inside the glove. She later testified that she often used rubber gloves around the

house, which would explain her DNA, but that she still had no idea how gunshot residue

got onto a glove with her DNA in it. Stout testified that she had nothing to do with the

gun or the holster and did not know how they ended up in the locations where officers

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found them. Investigating officers recovered no fingerprints from the gun or

ammunition. There was no gunshot residue on Bill’s hands.

¶14 The search also revealed a note in Stout’s handwriting in her nightstand that

contained apparent instructions on how to fire a pistol like the one used in the crime. She

claimed that the note was actually a guide for their college-age son for using the clothes

washer. Her computer showed 56 internet searches for such topics as how to kill

someone, how to poison someone and get away with it, and how to put a person to sleep.

Stout testified that she believed that these were Bill’s searches and showed that he

planned to commit suicide. Stout was the beneficiary of a $500,000 term life insurance

policy that Bill had taken out two years before his death, and was co-owner of their real

estate with equity over $500,000.

¶15 The investigation also revealed that during a 2005 trip to Arkansas, Bill had a brief

affair with a woman he had known years before named Barbara Miller. Bill and Miller

continued to communicate after Bill returned to Montana, and he bought a plane ticket

for her to fly into Kalispell, Montana, although that trip and meeting never happened.

Miller testified that she and Bill had discussed getting married and that she planned to

move to Montana when that happened.

¶16 Stout later found out about the relationship between Bill and Miller through a

phone call from a female person who Stout said she did not recognize. She had a

confrontation with Bill over the affair and he agreed to terminate contact with Miller.

Shortly thereafter (still in 2005), Bill, Anne, their sons, and a number of their friends

began receiving emails or letters postmarked in Arkansas purporting to be from Miller or

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from Miller’s daughter. The communications deprecated Anne Stout, touted the

relationship between Bill and Miller and claimed that it was an ongoing affair. They

claimed that Miller was pregnant with Bill’s child, and claimed that Miller was going to

move to Montana to take Anne Stout’s place in the family. The communications claimed

that Miller was going to bring Bill’s baby to Montana. Other communications, including

letters postmarked in Arkansas, purported to invite the family and friends to a barbecue in

Montana to celebrate the relationship between Bill and Miller. Bill reported the

purported Miller harassment to law enforcement in Ravalli County. Stout told a number

of people about Bill’s relationship with Miller, and it was a source of intense shame and

embarrassment for him. These purported communications from Miller continued

sporadically until June, 2006. None of the communications ever went to members of

Stout’s family.

¶17 The investigation showed that the email accounts from which the purported Miller

messages were sent were created on Stout’s work computer, and that some of the emails

had been sent from her home computer. Investigators were able to duplicate a Ft. Smith,

Arkansas postmark like the ones found on letters purporting to be from Miller by mailing

a stamped and addressed letter in a manila envelope from Hamilton, Montana to the

postmaster in Ft. Smith, Arkansas. During the search immediately after Bill’s death in

2007, officers found two letters with Arkansas postmarks in Anne’s car in the garage, one

sealed and one un-sealed, like the others that had started appearing in 2005.

¶18 Stout’s was the only DNA found on the adhesive of an envelope postmarked from

Arkansas, purporting to be from Miller and inviting Bill’s work partner to the barbecue.

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The sealed Ft. Smith, Arkansas envelope found in Stout’s car during the search contained

printed-out emails purporting to be from Miller. Those print-outs contained Stout’s

fingerprints and palm print. She testified that she did not dispute that her DNA was on

the adhesive of the Arkansas envelopes but that she had no idea how it got there. She

testified that she could have unknowingly handled the contents of the Arkansas mailings

because she sometimes helped Bill with paperwork. During the search after Bill’s death,

officers found in the Stouts’ bedroom a copy of a purported invitation to the barbecue

addressed to their sons. Handwriting on the invitation, purportedly from Miller in

Arkansas, was identified as Stout’s by handwriting analysis, to a high probability.

¶19 In addition to the mailings and emailings, there were several acts of petty

vandalism such as eggs or feces smeared on Bill’s truck and broken potted plants on the

porch of the house. Bill and Anne reported receiving numerous hang-up phone calls.

The subsequent investigation showed that those calls had been made from a pay phone in

the hall of the business where Stout worked. Bill also reported that a credit card and

some financial information were missing from the house and stated that he feared that

Miller had come to Montana and had broken in. Bill received emails purporting to be

from Miller stating that she was going to come to Montana, and reported his fears about

Miller to the sheriff’s office. Investigating officers found no evidence that Miller ever

came to Montana prior to testifying at Stout’s trial.

¶20 As recently as seven months before Bill’s death, Stout conducted internet searches

related to Miller and to Bill on her work computer and used that computer to create an

online account in Miller’s name. Stout and Miller also periodically talked by phone in

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conversations initiated by Stout. She also called and emailed Miller’s boss about the

affair, and Miller became concerned that she would lose her job if Stout obtained a

restraining order against her as Stout threatened. Stout testified that she never sought a

restraining order against Miller and never told anyone that she had. Other witnesses

testified that she had told them about a restraining order. As recently as six months

before Bill’s death, Stout called Miller to report that she was divorcing Bill. Miller

concluded that Stout was very angry about Bill’s relationship with her.

¶21 Shortly after Bill’s death, Stout and her two sons named Miller to investigating

officers as a person who had an affair with Bill and who had been stalking the family.

Stout told officers that Miller’s harassment was a great concern to Bill and that not long

before his death he believed that a car that turned into their driveway during the night was

Miller or one of her family members. Acquaintances of Bill also told officers about the

purported Miller stalking, having heard about it repeatedly from Stout. Miller was

eliminated as a suspect based upon a store surveillance video that showed that she was in

Arkansas at about the same time that Bill was shot.

¶22 A central theme of the prosecution was that Stout deliberately and methodically

created the illusion, beginning in 2005 and continuing up until the investigation of Bill’s

death, that the family had been victimized and stalked by Miller.

¶23 Stout testified that she never made the phone calls that Miller reported, that she

never sent mailings to anyone with Arkansas postmarks, that she had no idea how her

DNA got onto the envelopes, and that she never created any of the purported Miller

emails traced to her computer. She testified that after she found out about the Miller

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affair she discovered that Bill had bought an airline ticket for Miller to come to Montana;

that Bill and Miller were talking by phone; that Bill had bought phone calling cards she

did not know about; that Bill had registered with an on-line dating service in 2004; and

that Bill had obtained a post office box that she did not previously know about. She

testified that she was angry and humiliated. Investigating officers found a list Anne had

kept, apparently for years, of all the “really mean things” Bill had ever said to her.

¶24 Stout was charged by information with deliberate homicide on June 26, 2007. She

presented expert testimony that the circumstances of Bill’s death were consistent with

either suicide or homicide. After a three-week trial, a jury found her guilty in June, 2008.

The District Court committed her to prison for life in September, 2008.

DISCUSSION

¶25 Issue One: Whether the District Court properly allowed the expert reports that

had been admitted into evidence into the jury room during deliberations.

¶26 At the conclusion of the evidence and closing arguments, the trial judge and

attorneys met to organize the several hundred pieces of evidence that had been admitted

during the trial and to resolve any issues of which exhibits could be taken into the jury

room during deliberation. There was no objection from either side to sending the vast

majority of the exhibits with the jury during deliberations. This Court reviews a district

court’s decision on exhibits that may be taken to jury deliberations for an abuse of

discretion. State v. Bales, 1999 MT 334, ¶¶ 12, 25, 297 Mont. 402, 994 P.2d 17.

¶27 The record of these discussions shows that the District Court excluded several

exhibits from the jury deliberations upon objection by the defense. For example, the

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defense successfully objected that a photograph that a witness had marked during

testimony placed undue emphasis on that witness and should be excluded in favor of an

un-marked copy of the same image. The defense successfully excluded two drawings

done during testimony by prosecution experts on the ground that they had been admitted

“just for demonstrative purposes.” At the same time the defense argued that the audio

recordings of several witness interviews that had also been transcribed should be given to

the jury. The prosecution and District Court agreed and the recordings went with the

jury.

¶28 The defense objected to Exhibits 226 through 238, characterized as “various

reports from the laboratories” on the ground that allowing the jury to see the reports

would put “undue emphasis” on them or the witnesses. Each of the exhibits had

previously been admitted into evidence. The only report the defense specifically objected

to was the “Autopsy Report,” but only to the extent that it contained the conclusion that

Bill’s death was a homicide. The District Court concluded that there was no “unfair

prejudice” in sending the reports with the jury, and that the homicide conclusion in the

autopsy report was “made clear in testimony, so it’s no surprise.”

¶29 Stout contends that the expert reports were “testimonial evidence” that should

have been excluded from jury deliberations. She does not contend that the reports were

erroneously admitted into evidence during the trial. When jurors retire for deliberation,

they may take with them “all exhibits that have been received as evidence in the cause

that in the opinion of the court will be necessary.” Section 46-16-504, MCA. At the

same time, this Court has recognized the common law rule against submission of

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“testimonial materials” to the jury for “unsupervised and unrestricted review.” State v.

Herman, 2009 MT 101, ¶ 38, 350 Mont. 109, 204 P.3d 1254. That rule applies both as to

materials sent with the jury at the start of deliberations, and to requests from the jury to

re-hear testimony during deliberations as provided in § 46-16-503(2), MCA. Bales, ¶ 23.

A district court’s decision under § 46-16-504, MCA, on evidence that may be taken by

the jury during deliberations is reviewed for abuse of discretion. Bales, ¶ 24.

¶30 This Court has tended to identify “testimonial materials” for purposes of the

common law rule by analogy. In Bales, ¶ 16, we quoted a definition of the phrase

“testimonial evidence” from Black’s Law Dictionary. The current Ninth Edition of that

work defines “testimonial evidence” as a “person’s testimony offered to prove the truth

of the matter asserted; esp., evidence elicited from a witness. Also termed communicative

evidence; oral evidence.” Black’s Law Dictionary 640 (Bryan A. Garner ed., 9th ed.,

West 2009). Therefore for purposes of this rule, the terms “testimonial materials” and

“testimonial evidence” have been treated as equivalents.

¶31 Further illustration of the intent and meaning of these terms comes from the cases

in which this Court has considered issues of what materials can be provided to a jury

during deliberations. The disputed testimonial evidence in Bales was the tape recording

of a police interview with a defendant. Similarly, in Herman the disputed testimonial

evidence was the written statement by a witness; in State v. Mayes, 251 Mont. 358, 825

P.2d 1196 (1992), it was a tape recording of witness statements; in State v. Morse, 229

Mont. 222, 746 P.2d 108 (1987), it was a surveillance tape record of the defendant; and in

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State v. Harris, 247 Mont. 405, 808 P.2d 453 (1991), it was the entire transcript of the

victim’s testimony.

¶32 Stout asserts that expert witness reports admitted into evidence in her case were

testimonial evidence that should have been excluded from jury deliberations by the

common law rule noted above. However, Stout fails to provide anything more than

conclusory contentions that the expert witness reports in her case constituted “testimonial

evidence” as that phrase has been defined and as it has been applied in case law. She

really only argues that the exhibits relate to and are consistent with testimony from

various State witnesses. That, of course, would be true for most pieces of evidence

admitted in most trials and forms no basis for excluding items of evidence from the jury

deliberations. This is no ground for error. Nevertheless we have reviewed the State’s

exhibits that she complains about and conclude that none of them is testimonial materials

or testimonial evidence for purposes of the common law rule.

¶33 State’s Exhibits 226, 227, 228, 229, 231, 232, 236, and 238 are brief laboratory

reports, most of them a single page, from the Forensic Science Division of the Montana

Department of Justice, commonly referred to as the “State Crime Lab.” The reports

briefly and summarily list technical and scientific facts resulting from the examination of

evidence relating to the prosecution. Exhibit 230 is a longer report from a laboratory in

Florida concerning the results of various DNA tests of evidence such as the Arkansas

envelopes and the rubber glove. Like the Forensic Science Division reports, the DNA

report lists and summarizes the technical and scientific facts resulting from the

examination of evidence potentially containing DNA residue. Exhibits 233 and 234 were

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investigative reports written by Deputy Wagner of the Cascade County Sheriff’s Office

concerning his examination of and conclusions about the handwriting found on one of the

Arkansas mailings. Exhibit 237 was a one-paragraph letter from the Assistant Herbarium

Curator at the University of Montana tentatively identifying some of the plant material

found in the box of ammunition for the pistol.

¶34 Exhibit 235 was the report of the postmortem examination (autopsy) of Bill’s

body. This is the only exhibit that Stout specifically objected to during the exhibit

conference at the end of the trial. At that time Stout contended that she was prejudiced

by the exhibit, but only by the line “at the very end” of the report that said “Manner of

Death: Homicide.” The District Court allowed the exhibit to go to the jury because the

conclusion was consistent with the author’s testimony and was “no surprise.”

¶35 The author of each of the reports testified and was cross-examined at trial. The

defense either stipulated to or did not contest the expert qualifications of each of the

witnesses. The jury was instructed on its power and duty to evaluate the testimony of

each witness and to determine the weight it should be given. The jury was instructed

specifically that expert testimony should be given the weight it deserves, and may be

entirely rejected if the reasons given to support it are unsound. Trial court judges are

given broad discretion to determine which exhibits would be necessary to help the jury in

deciding the case. The District Court did not err by allowing these reports to accompany

the jury during deliberation.

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¶36 Issue Two: Whether the District Court properly admitted evidence at trial

concerning Stout’s attempts to falsely implicate Miller as the source of a campaign to

harass and intimidate Stout’s husband and family.

¶37 Stout contends that the District Court improperly admitted evidence of her

campaign to create the illusion that Miller was stalking and harassing Bill and the family.

She contends that the evidence was not related to any fact in dispute, and was

inadmissible because the events did not occur immediately prior to the charged offense.

This Court reviews rulings on the admissibility of evidence to determine whether there

has been an abuse of discretion. State v. Paoni, 2006 MT 26, ¶ 13, 331 Mont. 86, 124

P.3d 1040.

¶38 The State contends that the Miller evidence is admissible under § 26-1-103, MCA,

referred to as the transaction rule. It provides:

Where 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.

The transaction rule allows admission of evidence of acts that are “inextricably or

inseparably linked to,” State v. Lacey, 2010 MT 6, ¶ 31, 355 Mont. 31, 224 P.3d 1247,

and are explanatory of the charged offense, State v. Derbyshire, 2009 MT 27, ¶ 41, 349

Mont. 114, 201 P.3d 811. The rule is based upon the premise that it is difficult to

subdivide a course of conduct into discrete criminal acts and “other” conduct, as it is

difficult for a witness to testify coherently about an event if the witness is only allowed to

reference minutely defined elements of the crime. State v. Guill, 2010 MT 69, ¶ 27, 355

Mont. 490, __ P.3d __. The rule allows admission of evidence that is necessary to

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“provide a comprehensive and complete picture of the commission of a crime.” Guill, ¶

36. All Federal circuits recognize the legitimacy of admitting properly limited relevant

evidence that is intrinsic to or inextricably intertwined with a charged crime. Guill, ¶ 28.

¶39 We have cautioned that the transaction rule should not be used to admit evidence

of other crimes, wrongs or acts to “prove the character of a person in order to show action

in conformity therewith” as prohibited by Rule 404(b), M. R. Evid. State v. Barosik,

2009 MT 260, ¶ 46, 352 Mont. 16, 214 P.3d 776, without following the requirements

explained in State v. Matt, 249 Mont. 136, 814 P.2d 52 (1991). Application of the

transaction rule should not be used to avoid Rule 404 and the notice and instruction

requirements it specifies. Guill, ¶ 26.

¶40 Stout first argues that the evidence of her campaign to make it appear that Miller

was stalking the family was inadmissible because it did not happen “immediately prior”

to Bill’s murder. The phrase “immediately prior” is found in several decisions from this

Court, in passages explaining the theory and purpose of the “transaction rule.” It appears

to have first been used in State v. Moore, 254 Mont. 241, 246, 836 P.2d 604, 607 (1992),

and was adopted from a Texas case, Cruz v. State, 645 S.W.2d 498 (Tex. App. 1982).

The disputed evidence in Moore involved acts by the defendant after the crime.

¶41 The use of the phrase “immediately prior” in cases explaining the transaction rule

is not a substantive temporal limitation on evidence admissible under the rule. We have

never held that evidence admissible under the rule is limited to evidence of acts occurring

immediately prior to the crime. See e.g. State v. Bauer, 2002 MT 7, 308 Mont. 99, 39

P.3d 689. Adoption of such a narrow interpretation would reward the plodding and

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methodical criminal who is capable of planning her crime over a span of months or years.

The ability to do so should not be rewarded by excluding the evidence. The issue under

the transaction rule is whether the evidence is inextricably linked to and explanatory of

the crime. The issue is not whether the acts occurred immediately prior to the crime or at

some other time.

¶42 Moreover, contrary to Stout’s characterization, her campaign to paint Miller as a

dangerous stalker was not an isolated incident that occurred two years before the crime.

While the campaign began in 2005, it was continuing up until the moment of Bill’s death

and afterwards. Within months before Bill’s death, Stout had created another internet

account in Miller’s name. She had done internet searches involving Bill and Miller. She

called Miller and told her she was divorcing Bill. Copies of the spurious emails and

letters that were part of the campaign were found in Stout’s car during the search after the

murder. When investigating officers interviewed Stout, she and her sons named Miller as

someone with whom Bill had trouble. Stout’s plan did not stop in 2005 but continued up

to and after the murder.

¶43 Second, Stout argues, very briefly, that the harassment evidence was inadmissible

because it was not related to any fact in dispute, as required by the transaction rule. She

contends that evidence of a campaign in 2005 to embarrass her husband about the affair

was not evidence of the murder.

¶44 The prosecution’s theory of the case was that Stout became enraged by the affair

and Bill’s apparent plan to divorce her and take up with Miller. In reaction to her anger

she manufactured the Miller harassment campaign to embarrass both Bill and Miller.

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Stout’s anger with Bill caused the events that eventually led to the murder, and the

manufactured perception that Miller had harassed the family could ensure that Miller

would be the suspect in the crime. This plan worked. Stout and both her sons told

investigating officers immediately after Bill’s death that Miller had been stalking the

family. Officers investigated Miller as a suspect. Had she not coincidentally appeared on

a store surveillance video in Arkansas at the time of the murder, Stout’s plan to drag a red

herring across the trail of the investigation could have lasted much longer.

¶45 Stout’s efforts to paint Miller as a deranged stalker and murder suspect were

clearly an integral part of her planning of the crime. Stout could not act on her anger

toward Bill until she sufficiently indoctrinated everyone involved, including Bill and her

sons, to the belief that Miller was a threat to them. She did this thoroughly and precisely.

It was part of her planning of the crime itself and was clearly inextricably linked to her

role in Bill’s death. The evidence that Stout manufactured the harassment campaign to

implicate Miller was not evidence of “other” crimes, acts or wrongs, and thus M. R. Evid.

404(b) is not implicated. It was evidence of the crime itself and provided the essential

context to prove to the jury how and why the crime occurred.

¶46 Contrary to the suggestion by the dissent, use of the transaction rule in this manner

does not allow prosecutors to seek victory at the expense of a defendant’s constitutional

rights. The prosecution is required to disclose to the defendant in discovery the witnesses

it intends to call and the evidence it intends to introduce. Section 46-15-322, MCA.

Moreover, the prosecutor is required to disclose evidence that tends to be exculpatory.

State v. Licht, 266 Mont. 123, 129, 879 P.2d 670, 673-74 (1994). Finally, the prosecutor

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is required to conform to the Montana Rules of Evidence and the defendant has the right

to challenge proposed evidence throughout the trial process. No constitutional rights of

the defendant are limited by the holding in this case.

¶47 We are not persuaded by the dissent’s argument that the “inextricably intertwined”

requirement should be further constrained by a requirement that the transaction rule be

limited to the evidence that is essential to secure a conviction. There are clear difficulties

determining at trial and on appeal the line to be drawn between the evidence without

which the conviction could not occur and all other evidence offered by the prosecution.

Adoption of an “evidence required to convict” standard risks requiring all evidence in a

criminal case apart from the narrow ultimate issues—such as who pulled the trigger—to

require pretrial notice and cautionary instructions as the evidence is presented. Clearly

such an obligation would present difficult and often unclear choices to the trial judge,

increasing the risk of error and jury confusion, and more appeals.

¶48 Finally, the dissent misconstrues our ruling in State v. Henson, 2010 MT 136, __

Mont. __, __ P.3d __. Rather than creating a double standard for application of the

transaction rule to the prosecution and defense, Henson adopts the identical limitation on

use of the rule for both. Lacey imposed restrictions on the prosecution’s use of evidence

concerning conduct of or with witnesses not part of the crime being prosecuted. Henson

applied that ruling to the use of such evidence by the defense.

¶49 We hold that evidence of Stout’s campaign to portray Miller as a stalker was

inextricably linked to proving that she murdered Bill and was properly admitted.

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¶50 Issue Three: Whether the District Court properly admitted opinion testimony from

a police officer concerning blood evidence at the scene. This Court reviews rulings on

the admissibility of evidence to determine whether there has been an abuse of discretion.

Paoni, ¶ 13.

¶51 Stout contends that the District Court erred in allowing Matt Cashell, one of the

investigating detectives, to offer his opinion that Bill’s body was moved after he was

shot, based in part upon the blood stains found on and around the body. Cashell was an

officer with the Ravalli County Sheriff’s Department and Deputy Ravalli County

Coroner. He participated in the initial crime scene investigation and testified on several

separate occasions at trial.

¶52 When Cashell first appeared on June 2 early in the trial, he testified that he had a

four-year degree in justice studies, was a graduate of the Montana Law Enforcement

Academy, and was Deputy Ravalli County Coroner. He generally described what he saw

at the scene and identified the photographs he took. On cross-examination, the defense

asked him a series of questions about the location and appearance of blood spots and

stains on and around the body. He was also cross-examined about his examination of the

body for rigor mortis and whether he came to any conclusions as a result. There was no

objection during any of this testimony. He testified on subsequent occasions that are not

at issue in this appeal.

¶53 On June 5 Cashell was called to testify again. He testified about specialized

training he received in blood stain pattern analysis, including impact stains, transfer stains

and drying times. He described that the course included lab work using human blood to

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evaluate the effects of blood stains and drying times. He then testified that at the scene of

Bill’s death he found a large volume of blood that had substantially coagulated,

explaining the difference between dried and coagulated blood. Cashell testified that in

his opinion based on the coagulation and drying he saw, Bill had been dead “for some

time” when he examined the body. He also described in some detail the meanings of

rigor mortis and lividity, and his observations of Bill’s body that led him to conclude that

Bill had been dead 8 to 12 hours or longer at the time of his observations. There was no

relevant objection during any part of this testimony.

¶54 Cashell testified again on June 6. He testified that based on his observations he

concluded that the body, the covers and the pillow had been moved after death. He

testified that the blood stains indicated to him that the body had been moved after death.

At this point the defense asked to voir dire the witness and asked him about his blood

stain analysis workshop. He testified that he completed a week-long course at the State

Crime Lab, taught by officials from the Kansas City Police Department and the Kansas

Bureau of Investigation. Cashell indicated that he had not testified on blood stain

analysis before and had authored no articles in the area. The defense then objected that

Cashell was not qualified to give expert testimony because his workshop was only a week

long. The District Court ruled that Cashell could state his opinion, and that the “jury can

give it such weight as they feel it deserves.”

¶55 He testified that with the body as they found it, the bullet could not have traveled

through Bill’s head to the position in the pillow where it was located. Therefore, he

concluded that the body must have been moved after Bill was shot. He testified that as

20

the body was found, there was blood that was “actually above or against gravity from the

wound” again indicating that the body had been moved. He testified that there was a

defined margin or line in the blood stain on the left hand as if it had been partially in a

pool of blood, but that the hand was not in a pool of blood when the body was found.

The same was true in other areas of the body. He testified that there were coagulated

deposits on top of blood stains, indicating that the blood had coagulated before it was

deposited on the stain, again indicating body movement.

¶56 Cashell described other blood stains that were deposited when the blood was

already coagulated because the blood had not run. He described the position the body

would have to be in at the time of death to create the blood patterns he found. He then

testified about lividity and the purple discoloration in the body, and his conclusion that

the lividity had become fixed with the body in the position in which it was found.

Cashell concluded that Bill had been lying on his right side when he was shot, that the

body had stayed in that position long enough for blood to begin to coagulate, and that it

had then been rolled over onto the back in the position in which it was found.

¶57 Cashell also testified that there was a pillow over Bill’s head when the body was

found, covering the entrance wound in the head, indicating that the pillow had been

moved. He testified that there were drops of blood found under the sheet, indicating that

the sheet had been moved. He testified that fingerprints in the blood were left by

someone other than Bill, based upon the position of the bedding and his conclusion that

Bill could not have moved his hand to make the prints after he was dead.

21

¶58 On cross-examination, defense counsel stated that “it’s obvious, without going

through any blood stain analysis, that things were moved in the room because, as you

first started to testify, the one green pillow was over the entrance wound . . . .” Defense

counsel further stated that “when we look at the photos, it’s obvious someone put the bed

covers over his right arm, too. . . .” During closing argument, defense counsel mentioned

Cashell’s testimony only once, observing: “I don’t care who moved the body. We know

somebody did something because the pillows are there.”

¶59 A district court may allow expert testimony if the witness has the requisite

knowledge, skill, experience, training or education to testify. Rule 702, M. R. Evid.;

State v. Russette, 2002 MT 200, ¶ 14, 311 Mont. 188, 53 P.3d 1256.1 The witness must

have specialized knowledge that would distinguish him from a lay person. State v.

Maier, 1999 MT 51, ¶ 89, 293 Mont. 403, 977 P.2d 298. The district court has great

latitude in ruling on the admissibility of expert testimony, and the ruling will not be

disturbed without a showing of abuse of discretion. State v. Crawford, 2003 MT 118, ¶

30, 315 Mont. 480, 68 P.3d 484.

¶60 Stout contends that Cashell should not have been allowed to state his opinion that

the body had been moved because that was “key circumstantial evidence that Bill’s death

was not a suicide because someone had moved his body after death.” However, at the

trial itself, it was clear that the defense did not contest the fact that the body and bedding

had been tampered with after Bill was shot. Indeed, they could not have taken any other

1

Russette states that an expert must be qualified by “knowledge, skill, experience,

training and education.” (Emphasis added.) This is an incorrect statement of the law of

Rule 702, which lists the possible areas of qualification in the disjunctive.

22

position under the facts because a pillow was found over the entrance wound and blood

was found under the sheet. Under these circumstances Stout cannot demonstrate any

prejudice arising from Cashell’s testimony that the body and bedding had been moved.

¶61 Further, the District Court had great latitude in assessing the qualifications of the

witness as an expert. While Stout argues now that Cashell was not an expert because he

lacked a college degree in blood spatter analysis, had not testified as an expert in other

trials and had not published papers on the topic, those are not pre-requisites to

qualification to provide expert testimony. Cashell had a four-year degree in law

enforcement, was a Law Enforcement Academy graduate, had experience as a detective

and coroner, and had completed a week-long course in blood spatter evidence. This

training and experience adequately qualified him to give the testimony he gave,

especially in light of the fact that much of his testimony was intuitive. Much of his

testimony involved propositions such as blood flows down, a discrete line in a blood stain

is significant, and a pillow over the entrance wound is significant. In addition, he

testified extensively and without objection as to his observations and conclusions on rigor

mortis and lividity.

¶62 Last, as noted earlier, the jury was instructed that they could give expert testimony

the weight they thought it deserved, and could reject it entirely if the reasons given for it

were unsound. And, of course, the defense was free to present expert testimony from

other witnesses contesting the opinions offered by Cashell. The District Court did not

abuse its discretion allowing Cashell to testify.

23

¶63 Issue Four: Whether the District Court erred in refusing to suppress evidence

seized from a motorcycle saddlebag under the authority of a search warrant.

¶64 Stout appeals the District Court’s denial of her motion to suppress the pistol that

was used to kill Bill. This Court reviews denial of a motion to suppress to determine

whether the district court’s findings of fact are clearly erroneous and its interpretation of

the law is correct. State v. Marks, 2002 MT 255, ¶ 10, 312 Mont. 169, 59 P.3d 369.

Stout contends that the investigating officers exceeded the scope of the search warrant by

seizing the gun from the saddle bag of the motorcycle in the garage. This Court reviews

a district court’s denial of a motion to suppress evidence to determine whether the

findings of fact are clearly erroneous and the interpretation and application of the law are

correct. State v. Marks, 2002 MT 255, ¶ 10, 312 Mont. 169, 59 P.3d 369.

¶65 When officers arrived at the Stout residence and determined that Bill had been

shot, they sought and obtained a search warrant. The warrant authorized the officers to

search for “any firearm that could be related to the death of William Lee Stout.” The

warrant described the places to be searched as

in and upon the premises residence, outbuildings and vehicles of William

Lee Stout and Anne Marie Stout, located at 266 Trapper Meadow Road,

Darby, MT 59840 and described as a single story single family dwelling of

frame construction with natural wood colored siding and having brown

asphalt shingle roofing with a partial basement and an attached garage. The

residence has a “Gone Fishing” sign on the east side of the door. The

vehicles of William Stout and Anne Marie Stout are one red 2000 Ford

truck . . . , one 1995 green Chevrolet Suburban . . . , one 2000 White Trails

West Horse Trailer . . . , and one black Honda passenger car . . . .

The warrant concluded that the Justice of the Peace was “satisfied that there is probable

cause to believe that the property described [i.e., the gun and other items that were the

24

object of the search] is in the said premises residence, outbuilding, and vehicles of

William Stout and Anne Marie Stout described above.”

¶66 Stout contends that the officers could not search the saddlebags of the motorcycle

found inside the garage because the motorcycle was not specifically listed in the search

warrant as a one of the Stout vehicles. Stout does not contend that there was not probable

cause to issue the search warrant or that the items to be seized were not properly

described. Her contention is that the officers exceeded the scope of the warrant by

looking into the motorcycle saddlebag. The District Court denied Stout’s motion to

suppress, holding that the premises to be searched were described with particularity as

including the attached garage, and that “a search of the garage and whatever containers

and receptacles were located in the garage that might hold a firearm related to the death

of Bill Stout was permissible.” The District Court also concluded that the warrant

authorization to search the “vehicles of William Lee Stout and Anne Marie Stout” was

“sufficiently particular to include the motorcycle at issue.”

¶67 Stout cites and quotes only marginally relevant cases dealing with warrantless

searches, but her primary contention is that since the warrant lists several specific

vehicles, the general authorization in the warrant to search “vehicles” must be read to

apply only to the ones specifically listed. She contends that the “warrant’s plain language

excluded [the motorcycle] from the authorized search.”

¶68 We cannot adopt Stout’s cribbed reading of the warrant. The warrant authorized a

search of the premises, specifically including the garage and vehicles. Under established

law that alone would be sufficient to permit the search of any vehicles found on the

25

premises. U.S. v. Percival, 756 F.2d 600, 612 (7th Cir. 1985); U.S. v. Duque, 62 F.3d

1146, 1151 (9th Cir. 1995); U.S. v. Gamboa, 439 F.3d 796, 807 (8th Cir. 2006). The fact

that the warrant went on and described four particular vehicles does not alter the

conclusion that the motorcycle bags were subject to search. While Stout argues that the

warrant should be construed to allow a search of the listed vehicles and only the listed

vehicles, the warrant does not say that. We see no reason to add language to an otherwise

valid and particular warrant.

¶69 The District Court properly denied the motion to suppress and properly admitted

the evidence of the pistol at trial.

¶70 Issue Five: Whether the District Court had jurisdiction to order that the sentence

be modified after conclusion of the appeal to include costs of appellate counsel.

¶71 Following Stout’s conviction, the District Court entered an Amended Judgment

and Commitment sentencing her to life in prison. The District Court also ordered her to

pay the costs of her public defender in the amount of $57,127. That amount of

reimbursement was stipulated between the prosecution and Stout, and she does not

contest this order. Five days later the District Court entered a second order re-stating the

stipulated amount and further ordering that the amount “shall be increased, if her

conviction is affirmed, on appeal, by assessing all hours incurred by the Montana Office

of Public Defender attorneys from January 1, 2009, until completion of the appeal.”

Stout contends on appeal that the District Court lacked power to order the sentence to be

so modified in the future. We agree.

26

¶72 This Court reviews sentence conditions for legality. State v. Stiles, 2008 MT 390,

¶ 13, 347 Mont. 95, 197 P.3d 966. Section 46-8-113, MCA, allows a court to impose

repayment of the costs of assigned counsel as a condition of a sentence, limited to “costs

incurred by the office of state public defender . . . for providing the defendant with

counsel in the criminal proceeding.” The District Court was within its power under this

statute ordering Stout to reimburse the defense costs of $57,127 incurred through the

trial. However, the subsequent order that the amount could be increased if there were an

appeal and if the conviction were affirmed failed to specify the amount of reimbursement

required. It also failed to specify how disputes over the reimbursement amount would be

resolved and how the amount of reimbursement would be memorialized in a sentencing

document.2

¶73 Therefore, it is clear that at some point in the future the District Court would have

to modify the sentence as to reimbursement of defense costs. However, “no statutory

authority exists for the District Court to reserve authority for itself to modify the sentence

regarding reimbursement of court-appointed counsel once it has been imposed. The

District Court lacks the authority to revisit the matter at a latter hearing.” State v. Hirt,

2005 MT 285, ¶ 20, 329 Mont. 267, 124 P.3d 147. It is evident that the portion of the

order requiring reimbursement of appeal costs would require the District Court to revisit

the matter in the future. Therefore any portion of the sentence below that requires Stout

2

Disputes could clearly arise as to the number of hours expended upon appeal, the hourly

rate and other matters. Prior to finally settling the amount, the parties disputed the trial

counsel reimbursement amount, prompting a petition for supervisory control to this

Court.

27

to pay reimbursement for “all hours incurred by the Montana Officer of Public Defender

attorneys from January 1, 2009, until completion of the appeal” is hereby vacated.

However, the District Court could, upon a proper record and by specifying the amount,

order restitution for future costs. See e.g. State v. Benoit, 2002 MT 166, 310 Mont. 449,

51 P.3d 495. We remand to the District Court for the sole purpose of entering a new

order concerning reimbursement of defense costs on appeal consistent with this opinion.

¶74 Stout’s conviction is affirmed. The portion of her sentence dealing with

reimbursement of attorney costs on appeal is vacated and remanded to the District Court

for entry of a new order consistent with this opinion.

/S/ MIKE McGRATH

/S/ BRIAN MORRIS

/S/ PATRICIA COTTER

/S/ JIM RICE

Justice James C. Nelson, dissenting.

I. Introduction

¶75 I disagree with the Court’s broad application of the transaction rule (§ 26-1-103,

MCA) in this case and therefore dissent from the Court’s decision as to Issue Two. But

rather than simply concede that the transaction rule has finally swallowed Rule 404(b) of

the Montana Rules of Evidence, I have elected to critically evaluate this Court’s

28

interpretation of Rule 404(b) to determine if our jurisprudence is consistent with the

rule’s language and its historical underpinnings. Based on my research, I have concluded

that State v. Just, 184 Mont. 262, 602 P.2d 957 (1979), State v. Matt, 249 Mont. 136, 814

P.2d 52 (1991), and their progeny have strayed far afield from the narrow purpose of

Rule 404(b). Moreover, this Court’s approach to Rule 404(b) has unnecessarily cabined

the admission of a broad range of evidence that Rule 404(b) actually allows—including,

as here, evidence of plan, preparation, and identity. My research has led me to conclude

that the most necessary and salutary requirements of Just and Matt are the procedural

ones—notice to the defense and cautionary instructions when evidence of other crimes,

wrongs, or acts is or has been offered. These requirements ensure that the defendant is

not blindsided at trial and that the jury is clearly instructed that the evidence is being

admitted, not to prove that the defendant acted in conformity with her character, but

rather to prove some other material issue in the case. If the Attorney General and the

courts adopt the approach suggested below, I believe that prosecutors will be more

inclined to use Rule 404(b). And I am hopeful that this Court will be more inclined to

enforce Rule 404(b), in lieu of permitting expansion of the transaction rule.

¶76 Accordingly, my arguments herein are twofold. First, I disagree with the Court’s

conclusion that the evidence of Stout’s so-called harassment campaign was admissible

under the transaction rule. This is not to say that the evidence was not admissible under

any legal theory at all. To the contrary, I believe this evidence could have been admitted

under Rule 404(b), not § 26-1-103, MCA. This is a critical distinction. Evidence

admitted under Rule 404(b) is subject to certain substantive and procedural safeguards,

29

see Matt, 249 Mont. at 142-43, 814 P.2d at 56, which the prosecution flagrantly

disregarded in this case. In contrast, evidence admitted under § 26-1-103, MCA, is not

subject to these same safeguards. In fact, this statute has been used by prosecutors with

increasing frequency as a virtual free pass to introduce evidence of uncharged misconduct

without having to contend with the inconveniences of notice, a reasoned legal argument

explaining the purpose for which the evidence is being offered, and cautionary

instructions—all of which are required by Matt. A prosecutor need only recite the

talismanic phrase, “It’s all part of the criminal transaction,” and the perceived Red Sea of

obstacles to the admission of the uncharged misconduct evidence miraculously parts.

¶77 Yet, recognizing the dangers posed by such unrestrained use of the transaction

rule, we have cautioned that “[t]he transaction rule must not be expanded to the point that

the prohibition of character evidence under M. R. Evid. 404(b) is swallowed,” State v.

Berosik, 2009 MT 260, ¶ 46, 352 Mont. 16, 214 P.3d 776, and we have accordingly

limited the admission of evidence under § 26-1-103, MCA, to evidence that is

“inextricably linked” to a fact in dispute, State v. Guill, 2010 MT 69, ¶¶ 25-30, 355 Mont.

490, 228 P.3d 1152. My disagreement with the Court’s approach in this case, therefore,

is its distortion of the “inextricably linked” standard. In my view, it is absurd and totally

disingenuous to maintain, as the Court does, that the evidence of Stout’s harassment

campaign met this standard simply because it was “evidence of the crime.” Opinion,

¶ 45. All probative evidence offered by the prosecution is “evidence of the crime.”

Thus, it appears that we are simply pretending to require an “inextricable” connection

30

between the proffered transaction evidence and “a fact in dispute” and that we have no

intention of consistently enforcing actual compliance with this standard’s true meaning.

¶78 Second, as alluded to above, this case highlights an even bigger problem with our

jurisprudence under Rule 404(b) and the transaction rule—namely, that we have utterly

confounded the distinctions between Rule 404(b) and § 26-1-103, MCA. Indeed, today’s

decision effects the most substantial encroachment ever by § 26-1-103, MCA, on the

evidentiary realm of Rule 404(b). In holding that the evidence of Stout’s harassment

campaign—which is classic Rule 404(b) evidence—is admissible under the transaction

rule, the Court treats these two rules as coextensive, applying to the very same categories

of evidence. Of course, given the choice, the proponent of the uncharged misconduct

evidence will always choose the transaction rule—the path of least resistance—over Rule

404(b). Thus, the Court has effectively consigned Rule 404(b) to obscurity and dealt a

fatal blow to the safeguards of Matt. Henceforth, a prosecutor seeking to present

evidence of other crimes, wrongs, or acts as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident (the purposes

expressly recognized in Rule 404(b)) may simply bypass Rule 404(b) altogether and,

citing today’s decision, get the evidence admitted under § 26-1-103, MCA. This

approach is intolerable, not only because it promotes sloppy practice by prosecutors, but

also because it encourages juries to convict on the improper basis of the accused’s bad

character and supposed propensity for unlawful conduct.

¶79 Yet, as noted, a critical analysis of our jurisprudence under Just and Matt reveals

that the Modified Just Rule is partly to blame for this untenable situation. As I explain

31

below, this rule creates certain barriers to the legitimate use of uncharged misconduct

evidence and, thus, actually encourages prosecutors and courts to resort to alternative

schemes—such as the transaction rule—in order to get the evidence admitted, even

though Rule 404(b) clearly governs. Therefore, since it is not only preferable but

mandatory that safeguards be followed when evidence of uncharged misconduct is

admitted, I would revise the Modified Just Rule so that it conforms to the actual purpose

and scope of Rule 404(b). This presumably would make Rule 404(b) more accessible to

proponents of uncharged misconduct evidence and would eliminate the intellectually

dishonest approach of admitting such evidence under § 26-1-103, MCA—a statute that

was effectively supplanted, in any event, when the Rules of Evidence were adopted.

¶80 I address these points below, first discussing Rule 404(b) and the Modified Just

Rule, and then discussing the Court’s approach today under § 26-1-103, MCA.

II. Rule 404(b)

¶81 Again, my primary disagreement with the Court’s decision is our increasing

propensity to allow more and more evidence to be admitted under the transaction rule at

the expense of Rule 404(b) and its safeguards. I completely agree with the Court’s

statement that “[a]pplication of the transaction rule should not be used to avoid Rule 404

and the notice and instruction requirements it specifies.” Opinion, ¶ 39. I also agree with

the statement that “the prosecutor is required to conform to the Montana Rules of

Evidence.”1 Opinion, ¶ 46. To this end, I believe that any evidence which falls within

1

In this regard, I note that the Attorney General, who has statutory authority to

supervise and direct county attorneys in all matters pertaining to the duties of their office,

32

the scope of Rule 404(b) must be admitted pursuant to the requirements of the Modified

Just Rule (with two exceptions, noted below) and that the proponent of the evidence may

not circumvent those requirements by way of the transaction rule. In other words, the

transaction rule and Rule 404(b) do not overlap, but rather apply to mutually exclusive

categories of evidence—something we have already suggested in prior cases. See e.g.

State v. Lozon, 2004 MT 34, ¶ 12, 320 Mont. 26, 85 P.3d 753 (noting that there is a

“distinction” between Rule 404(b) evidence and transaction rule evidence). Thus, my

argument is not that we must draw a line between “the evidence without which the

conviction could not occur and all other evidence offered by the prosecution.” Opinion,

¶ 47. Rather, the line to be drawn is between Rule 404(b) evidence and transaction rule

evidence. We must make that line clear, and we must consistently enforce compliance

with it.

¶82 In this regard, I noted in my Guill concurrence that § 26-1-103, MCA, is actually a

mid-1800s statute that applied in civil litigation, not criminal prosecutions. It originated

in David Dudley Field’s The Code of Civil Procedure of the State of New-York, Part IV

(published in 1850). See Guill, ¶ 50 (Nelson, J., concurring). In the 1990s, this Court

attributed the doctrines of res gestae and corpus delicti (from which the “inextricably

linked” standard originates) to § 26-1-103, MCA, and began applying this statute in

criminal cases. See State v. Derbyshire, 2009 MT 27, ¶¶ 31-33, 349 Mont. 114, 201 P.3d

plays an important role in enforcing such compliance with the Rules of Evidence. See

§ 2-15-501(5), MCA; see also e.g. State ex rel. Fletcher v. Dist. Court, 260 Mont. 410,

416, 859 P.2d 992, 995-96 (1993) (Under § 2-15-501, MCA, “the Attorney General was

well within his authority to review the cases against the Petitioners and to direct the

Lincoln County Attorney not to use the Tilton evidence.”).

33

811. In so doing, however, we completely overlooked the fact that Rule 404(b), as the

later provision (it was adopted in 1976), prevails over § 26-1-103, MCA, to the extent of

any inconsistency or overlap. Cf. Oster v. Valley County, 2006 MT 180, ¶ 17, 333 Mont.

76, 140 P.3d 1079 (statutes relating to the same subject must be harmonized as much as

possible, giving effect to each); Ross v. City of Great Falls, 1998 MT 276, ¶ 19, 291

Mont. 377, 967 P.2d 1103 (where the terms and necessary operation of a later statute

cannot be harmonized with the terms and effect of an earlier statute, the earlier statute is

impliedly repealed). Indeed, the Montana Rules of Evidence supplanted all common law

doctrines and statutory provisions governing evidentiary matters to which the Rules of

Evidence applied. This Court adopted the Rules of Evidence pursuant to the authority

granted by Article VII, Section 2 of the Montana Constitution. See Chapter Compiler’s

Comments to Title 26, chapter 10, MCA, at 163 (2008 Annotations). And, acting under

that same authority, this Court declared various statutory sections to have been

superseded by the Rules of Evidence. See id. We noted that upon the adoption of the

Rules of Evidence, these statutory sections were “rendered obsolete, unnecessary and

redundant,” and we explained that “the continued presence of said sections as a part of

the law of Montana tends to lead to confusion, uncertainty and conflict in the law, all of

which are contrary to the spirit and purpose of the Montana Rules of Evidence and the

ends of justice.” See id. Given the “confusion, uncertainty and conflict in the law”

created by § 26-1-103, MCA, it is unfortunate that we did not include this provision in

the list of superseded statutes. But the clear implication of not declaring this statute to

have been superseded by the Rules of Evidence is that the statute must apply to a

34

category of evidence to which the Rules of Evidence do not apply. In other words, as

suggested at the outset, Rule 404(b) and § 26-1-103, MCA, may be harmonized by

interpreting them as applying to mutually exclusive categories of evidence.

¶83 What the Court fails to recognize or accept in the present case is that the evidence

in question (Stout’s harassment campaign) is Rule 404(b) evidence and, therefore, cannot

be admitted pursuant to § 26-1-103, MCA. Rule 404(b) controls. The problem, and the

reason for much of the confusion in our Rule 404(b)/transaction rule jurisprudence, is that

the Court has lost sight of Rule 404(b)’s scope and purpose. Thus, it is necessary to

review the function of this rule and the evidence to which it applies.

A. Purpose

¶84 The fundamental purpose of Rule 404 is to prohibit a party from introducing

evidence of a person’s character to show that the person acted in conformity therewith.

Specifically, Rule 404(a) states that “[e]vidence of a person’s character or a trait of

character is not admissible for the purpose of proving action in conformity therewith on a

particular occasion.” Likewise, Rule 404(b) states that “[e]vidence of other crimes,

wrongs, or acts is not admissible to prove the character of a person in order to show

action in conformity therewith.” Evidence of character, disposition, or propensity is

prohibited not because it is irrelevant, but because “it is said to weigh too much with the

jury and to so overpersuade them as to prejudge one with a bad general record and deny

him a fair opportunity to defend against a particular charge.” Michelson v. United States,

335 U.S. 469, 476, 69 S. Ct. 213, 218 (1948). Experience has taught that the introduction

of character evidence creates an unacceptable risk that the trier of fact will be tempted, at

35

least on a subconscious level, to penalize the defendant for his or her past misdeeds. See

Edward J. Imwinkelried, Uncharged Misconduct Evidence vol. 1, § 1:03, 9 (rev. ed.,

West 1998); Old Chief v. United States, 519 U.S. 172, 180-81, 117 S. Ct. 644, 650-51

(1997) (the risk of propensity evidence is that the jury will convict for crimes other than

those charged or that, uncertain of guilt, the jury will convict anyway because a bad

person deserves punishment); Christopher B. Mueller & Laird C. Kirkpatrick, Federal

Evidence vol. 1, § 4:28, 746 (3d ed., Thomson/West 2007) (“The risk [is] that a jury will

draw a deadly and decidedly improper three-step inference, from bad act to bad person to

guilty person, or give way to the emotional impulse to punish because the other act alone

shows that punishment is deserved.”). This conflicts with the basic tenet of our system of

justice that a defendant may be convicted and punished only for the criminal act charged,

not for his or her character or for other, uncharged acts. See Imwinkelried, Uncharged

Misconduct Evidence § 1:03, 9, § 2:19, 104-05.2

2

See also Mueller & Kirkpatrick, Federal Evidence § 4:22, 697-98 (“It is a

fundamental principle of American jurisprudence, and seemingly an axiom of simple

fairness, that a person accused of crime should be tried for some specific act—for what

he has done, and not for what he is.”); State v. Tiedemann, 139 Mont. 237, 242, 362 P.2d

529, 531 (1961) (when a defendant is put upon trial for one offense, he should be

convicted, if at all, by evidence which shows that he is guilty of that offense alone; proof

that he committed other crimes is not admissible to show his depravity or criminal

propensities, or the resultant likelihood of his committing the offense charged); State v.

Derbyshire, 2009 MT 27, ¶ 22, 349 Mont. 114, 201 P.3d 811 (a defendant must not be

convicted merely because he is an unsavory person or on the rationale that because he

committed a crime in the past, he has a defect of character that makes him more likely

than people generally to have committed the charged offense); State v. Aakre, 2002 MT

101, ¶ 34, 309 Mont. 403, 46 P.3d 648 (the purposes of Rule 404(b) include “protecting

the presumption of innocence” and “preventing the admission of uncharged conduct as

circumstantial proof of charged conduct except where the uncharged conduct possesses

‘independent’ or ‘special’ probative value relevant to a non-character theory”); United

36

¶85 At the same time, however, Rule 404(a) acknowledges certain exceptions to the

general rule barring character evidence. For example, Rule 404(a)(1) states that evidence

of a pertinent trait of character offered by an accused, or by the prosecution to rebut the

same, may be admissible. (Rule 405, in turn, governs the methods of proving character.)

Similarly, while Rule 404(b) bars evidence of other crimes, wrongs, or acts “to prove the

character of a person in order to show action in conformity therewith,” the rule states that

such evidence may be admissible “for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” The term “such as” indicates that this list is illustrative, not exhaustive. See

Matt, 249 Mont. at 141-42, 814 P.2d at 55-56; Commission Comments to Title 26,

chapter 10, Rule 404, MCA, at 278-79 (2008 Annotations); Imwinkelried, Uncharged

Misconduct Evidence § 3:01, 2 (it is “virtually impossible to completely catalogue all the

permissible theories of independent relevance” for which other-acts evidence may be

offered under Rule 404(b)); Mueller & Kirkpatrick, Federal Evidence § 4:28, 744 (the

list in Rule 404(b) is “nonexclusive”); McCormick on Evidence vol. 1, § 190, 753

(Kenneth S. Broun, 6th ed., Thomson/West 2006) (there are numerous uses to which

States v. Cortijo-Diaz, 875 F.2d 13, 15 (1st Cir. 1989) (the prohibition against other-acts

evidence is based on “long-established notions of fair play and due process,” which

forbid finding present guilt based on a “bad character profile”); United States v. Foskey,

636 F.2d 517, 523 (D.C. Cir. 1980) (“It is fundamental to American jurisprudence that a

defendant must be tried for what he did, not for who he is. That precept is . . . a

concomitant of the presumption of innocence.” (citation, alteration, and internal quotation

marks omitted)); Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice &

Procedure: Evidence vol. 22, § 5239, 437-38 (West 1978) (the use of other-acts evidence

may undermine the prohibition on double jeopardy, the right to proof of guilt beyond a

reasonable doubt, and the privilege against self-incrimination).

37

evidence of other crimes, wrongs, or acts may be put, and those enumerated in the rule

“are neither mutually exclusive nor collectively exhaustive”). And the critical point of

Rule 404(b), therefore, is that evidence of other crimes, wrongs, or acts may be

admissible for various purposes except to show action in conformity with character. In

other words, “Rule 404(b) bars not evidence as such, but a theory of admissibility.”

United States v. Crowder, 141 F.3d 1202, 1206 (D.C. Cir. 1998). Indeed, Rule 404(b) is

“simply a special application of the doctrine of multiple admissibility,” under which

“evidence that is inadmissible for one purpose is not to be excluded if it is admissible for

some other purpose unless the judge, in his discretion, determines that the danger of its

prejudicial use for the improper purpose outweighs its legitimate probative value.”

Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure:

Evidence vol. 22, § 5239, 435-36 (West 1978). Rule 404(b) admits evidence of other acts

“whenever it is relevant without using the inference of character anywhere in the chain of

inference,” i.e., if the evidence “proves a material issue without requiring any inference

to the defendant’s criminal disposition.” Id., 2010 Supp., § 5239, 540; see also David P.

Leonard, The New Wigmore: Evidence of Other Misconduct and Similar Events § 4.4,

231-32 (Aspen Publishers 2009) (explaining that other-acts evidence may be admitted

under a theory that avoids any character-based propensity inference).

B. Scope

¶86 Turning to the question of scope, Rule 404(b) provides, in full, as follows:

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

action in conformity therewith. It may, however, be admissible for other

38

purposes, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.

In determining the category of evidence to which this rule applies, the following three

facets of its language and underlying policies are instructive.

¶87 First, Rule 404(b) refers to “other” crimes, wrongs, or acts, which “[i]n this

context . . . means acts ‘other than’ the act(s) specified in the pleading: crimes other than

those alleged in the indictment and torts other than those averred in the complaint.”

Imwinkelried, Uncharged Misconduct Evidence § 2:11, 57; accord Wright & Graham,

Federal Practice & Procedure: Evidence § 5239, 445; see also People v. Gordon, 212

Cal. Rptr. 174, 188 (Cal. App. 3d Dist. 1985) (an act is uncharged if it falls outside the

accusatory pleading, which can happen when the act testified to either involves a

different actus reus or occurred at a time different than the charged offense), disapproved

on other grounds, People v. Frazer, 982 P.2d 180, 198 (Cal. 1999). It makes no

difference whether the uncharged act took place before or after the charged act—although

for some evidentiary purposes, a subsequent act would be irrelevant while a prior act

would not (e.g., to show knowledge at a particular point in time). See Wright & Graham,

Federal Practice & Procedure: Evidence § 5239, 445.

¶88 Second, Rule 404(b) refers to “crimes, wrongs, or acts.” These three terms “are

obviously not coextensive. The last term is the broadest and includes the prior two

concepts.” Imwinkelried, Uncharged Misconduct Evidence § 2:02, 4. Hence, “it would

have been more precise if the drafters of Rule 404(b) had used the language, ‘other acts,

including crimes and civil wrongs.’ ” Id. In this regard, it is important to keep in mind

39

that “the act need not be either a crime or a civil wrong such as a tort or breach of

contract.” Id.; see also Mueller & Kirkpatrick, Federal Evidence § 4:28, 747 (“[W]e are

talking about acts, so it does not matter whether they were criminal or not, and certainly

it does not matter whether they led to charges or convictions.”); Jack B. Weinstein &

Margaret A. Berger, Weinstein’s Federal Evidence vol. 2, § 404.20[2][a], 404-42 (Joseph

M. McLaughlin ed., 2d ed., Matthew Bender & Co. 2010) (“Rule 404(b)’s terminology

‘other crimes, wrongs, or acts’ includes conduct that is neither criminal nor unlawful if it

is relevant to a consequential fact.”). Indeed, Rule 404(b) applies to any conduct,

criminal or noncriminal, that “effectively impugns” or “reflects negatively” on the

defendant’s character. See Imwinkelried, Uncharged Misconduct Evidence § 2:15, 81;

Leonard, The New Wigmore: Evidence of Other Misconduct and Similar Events § 4.6,

270; see also Huddleston v. United States, 485 U.S. 681, 685, 108 S. Ct. 1496, 1499

(1988) (Rule 404(b) “generally prohibits the introduction of evidence of extrinsic acts

that might adversely reflect on the actor’s character”); Wright & Graham, Federal

Practice & Procedure: Evidence § 5239, 456-57 (“other acts” includes “any conduct,

good or bad, that tend[s] to show the character of the person involved”). This is so

because the policies underlying Rule 404(b)’s general prohibition come into play

“whenever, as a practical matter, the evidence amounts to an attack on the defendant’s

character,” which in turn “might tempt the jury to decide the case against the defendant

on an improper basis.” Imwinkelried, Uncharged Misconduct Evidence § 2:15, 81.

¶89 Third, although it may seem self-evident, it is important to stress that the purpose

of offering evidence of other crimes, wrongs, or acts under Rule 404(b) is (from the

40

prosecutor’s perspective) to establish the defendant’s guilt of the charged act. See id.,

§ 6:18, 46-47 (“[T]he prosecutor ordinarily offers uncharged misconduct as evidence on

the historical merits of the case,” i.e., “to prove essential elements of the charged crime”

or “to rebut affirmative defenses on the merits.”). In this regard, Professor Imwinkelried

explains that a crime, under the conventional definition, consists of an actus reus, a mens

rea, and proof of the defendant’s identity as the person who committed the actus reus and

possessed the mens rea. Id., § 3:01, 3. Other-acts evidence, in turn, may be used to

establish each of these elements. See generally id., chs. 3, 4, and 5; accord Wright &

Graham, Federal Practice & Procedure: Evidence § 5239, 460 (evidence may be offered

under Rule 404(b) to prove “that the allegedly criminal act took place,” “that the accused

was the actor,” and “that the accused had the requisite mental state”).

¶90 With respect to identity, for example, other-acts evidence may be used to show

that the defendant attempted to cast suspicion on a third party, which indicates

consciousness of guilt, which in turn is evidence that the defendant is the person who

committed the crime. Imwinkelried, Uncharged Misconduct Evidence § 3:04, 10-11.

Likewise, proof that the defendant entertained a plan that included the commission of the

charged crime is logically relevant to show the defendant’s identity as the criminal, id.,

§ 3:21, 112, as well as the doing of the criminal act and the defendant’s intent, see

McCormick on Evidence § 190, 755. Thus, the prosecutor may prove any uncharged act

by the defendant which shows that the defendant in fact and in mind formed a plan that

included the charged and uncharged acts as stages in the plan’s execution. Imwinkelried,

41

Uncharged Misconduct Evidence, § 3:22, 115.3 For instance, the defendant’s theft of a

car can be used to show the defendant’s plan to use the car as a getaway vehicle in a

kidnapping or a robbery. Id. at 115-16. Or, in the present case, the uncharged acts that

made up Stout’s harassment campaign (spurious emails and letters, hang-up phone calls,

and acts of petty vandalism) show Stout’s plan to kill her husband—apparently for

financial gain, or for retribution for Bill’s affair with Barbara Miller, or for both—and

“drag a red herring across the trail of the investigation” (Opinion, ¶ 44). They are also

evidence of “preparatory acts” Stout took to commit the homicide and cast suspicion on a

third party (Miller), which is logically relevant to the issue of Stout’s identity as the

perpetrator of the crime, see Imwinkelried, Uncharged Misconduct Evidence, § 3:25, 137,

and to the issue of whether she shot Bill purposely or knowingly, see id., § 5:37, 112 (“If

the defendant has prepared to commit the charged crime, the preparation raises the

3

See also McCormick on Evidence § 190, 755 (each act “should be an integral part

of an overarching plan explicitly conceived and executed by the defendant or his

confederates”); Wright & Graham, Federal Practice & Procedure: Evidence § 5244, 500

(under this theory, the defendant’s conduct “is said to be caused by his conscious

commitment to a course of conduct of which the charged crime is only a part,” and the

uncharged act “is admitted to show this larger goal rather than to show defendant’s

propensity to commit crimes”); Mueller & Kirkpatrick, Federal Evidence § 4:34, 842 (the

use of other crimes or acts to prove plan “does not involve the forbidden general

propensity inference because the argument is not that the defendant is predisposed toward

committing the charged offense, but that the defendant actually formed the plan or

scheme involved in committing the charged crime”); State v. Aakre, 2002 MT 101, ¶ 46,

309 Mont. 403, 46 P.3d 648 (defining “plan” under Rule 404(b) as “a method for

achieving an end”).

42

probability that the defendant committed the act with mens rea.”). These are legitimate

“other purpose” uses of other-acts evidence under Rule 404(b).4

¶91 The Court contends that evidence which serves to “complete the picture” or

“provide essential context” of the offense is admissible under the transaction rule.

Opinion, ¶¶ 38, 45. It is noteworthy, therefore, that among the various permissible

purposes for admitting other-acts evidence under Rule 404(b) (such as plan, motive, and

opportunity), Professor McCormick lists first: “To complete the story of the crime on

4

It should be noted here that there is a category of cases in which courts have

incorrectly allowed the introduction of uncharged misconduct under the rubric of “plan.”

If the proponent can show a series of similar acts, these courts admit the evidence on the

theory that a pattern or systematic course of conduct is sufficient to establish a plan—

basically, a plan-to-commit-a-series-of-similar-crimes theory. Imwinkelried, Uncharged

Misconduct Evidence § 3:23, 126. Professor Imwinkelried concludes that in reality, these

courts are illicitly allowing the proponent to prove the defendant’s character, disposition,

or propensity in violation of Rule 404(b)’s first sentence. See id. Other commentators

are similarly critical of this misuse of the “plan” theory, see Wright & Graham, Federal

Practice & Procedure: Evidence § 5244, 499-500; Mueller & Kirkpatrick, Federal

Evidence § 4:35, 842-45; Weinstein & Berger, Weinstein’s Federal Evidence

§ 404.22[5][a], 404-128, and this Court has likewise been critical of it on at least one

occasion, see Aakre, ¶ 35 (rejecting the dissent’s view that “evidence of a defendant’s

extremely similar abuse of another child” is evidence of “plan,” and observing that “ ‘by

irresponsibly invoking the theory without careful analysis, many courts have converted

plan into a “euphemism” for bad character, and have allowed the theory to degenerate

into “a dumping ground” for inadmissible bad character evidence’ ” (quoting Miguel A.

Méndez & Edward J. Imwinkelried, People v. Ewoldt: The California Supreme Court’s

About-Face on the Plan Theory for Admitting Evidence of an Accused’s Uncharged

Misconduct, 28 Loy. L.A. L. Rev. 473, 478-79 (1995) (footnotes omitted))). Professors

Wright and Graham observe that some opinions—and they notably include State v. Just,

184 Mont. 262, 602 P.2d 957 (1979), in this category—“seem unable or unwilling to see

the difference between a plan and a predisposition.” Wright & Graham, Federal Practice

& Procedure: Evidence, 2010 Supp., § 5244, 680 n. 6. To drive the point home, they

aptly point out: “Evidence that a judge has always affirmed the admission of evidence of

other crimes may show his predispositions, but except for people who are into conspiracy

theories it would hardly be considered proof of a plan. If the judge bought a rubber

stamp reading ‘There was no error in admitting the evidence under Rule 404(b),’ the

inference of a plan would be more plausible.” Id.

43

trial by placing it in the context of nearby and nearly contemporaneous happenings,”

which he notes is often referred to as “same transaction” or “res gestae” evidence.

McCormick on Evidence § 190, 754. McCormick states that this rationale for admission

should be applied only when reference to the uncharged acts is “essential” to “a coherent

and intelligible description of the offense at bar.” Id. Thus, under this interpretation,

evidence may be offered under Rule 404(b) for contextual purposes (so long as it does

not involve drawing an impermissible propensity inference based on character).

¶92 In summary, Rule 404(b) covers a wide array of evidence but serves a very narrow

purpose. It applies to all “other” crimes, wrongs, and acts, which are crimes, wrongs, and

acts—whether criminal, noncriminal, wrongful, or nonwrongful—that have not been

charged as an offense (i.e., are not charged in the information). But Rule 404(b) does not

come into play unless the proffered evidence has a tendency to impugn the defendant’s

character. Recall that “Rule 404(b) bars not evidence as such, but a theory of

admissibility.” Crowder, 141 F.3d at 1206. The rule prohibits using evidence of other

crimes, wrongs, or acts to show action in conformity with character on a particular

occasion, but the rule provides that such evidence may be admissible for various other

purposes, “such as” proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident. Restated, Rule 404(b) “generally provid[es]

for the admission of all evidence of other acts that is relevant to an issue in trial,

excepting only evidence offered to prove criminal propensity.” Weinstein & Berger,

Weinstein’s Federal Evidence § 404.20[3], 404-46.11. Thus, the critical issue is whether

the proffered other-acts evidence “proves a material issue without requiring any inference

44

to the defendant’s criminal disposition.” Wright & Graham, Federal Practice &

Procedure: Evidence, 2010 Supp., § 5239, 540. If it does, then Rule 404(b) allows (i.e.,

does not exclude) the evidence, though the evidence must then be subjected to balancing

under Rule 403. See Weinstein & Berger, Weinstein’s Federal Evidence § 404.21[1][a],

404-46.15 (to be admissible, the evidence “(1) must be relevant to an issue other than

character or the defendant’s propensity to commit the charged offense; and (2) must

satisfy the balancing test imposed by Rule 403”). Conversely, “if the necessary logical

steps [in the proponent’s theory of admissibility] include an inference of general

character or propensity, or if it seems likely that the proof will be used to support such an

inference,” then the principle of exclusion applies. Mueller & Kirkpatrick, Federal

Evidence § 4:28, 746-47. What all this boils down to is that other-acts evidence is

admissible if it is relevant (Rules 401 and 402), if its probative value is not 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 (Rule 403), and so long as its use at trial does not involve an

inference of propensity based on character (Rule 404(b)).

C. The Modified Just Rule

¶93 The State argues that the evidence of Stout’s harassment campaign was admissible

to show plan and preparation. For the reasons discussed above, the State is correct. The

spurious emails and letters, the hang-up phone calls, and the petty vandalism are classic

evidence of plan and preparation, which went to show Stout’s identity as the perpetrator

of Bill’s death, as well as her intent to cause the death purposely or knowingly. See

45

§ 45-5-102(1)(a), MCA (a person commits deliberate homicide if the person purposely or

knowingly causes the death of another human being). Also for the reasons discussed

above, this evidence falls squarely within the parameters of Rule 404(b). The spurious

emails and letters, the hang-up phone calls, and the petty vandalism are all crimes,

wrongs, or acts that were not charged as offenses in this case and, as such, are “other”

crimes, wrongs, or acts. Moreover, they tend to impugn and reflect negatively on Stout’s

character, thus implicating Rule 404(b)’s proscription on using the evidence to prove that

she acted in conformity with a bad character on the night in question. The prosecution

thus was required to show that the evidence was being offered for some other permissible

purpose; and, as just noted, other permissible purposes exist here, such as plan,

preparation, and identity.

¶94 The problem is that the admission of other-acts evidence in Montana is presently

governed by the Modified Just Rule, which would not have allowed the evidence of

Stout’s harassment campaign to be admitted. Indeed, there are problematic aspects of

this rule which have created misconceptions regarding the scope of Rule 404(b), and I

believe that we therefore should revise the Modified Just Rule in the manner suggested

below.

¶95 This Court articulated the original Just Rule in State v. Just, 184 Mont. 262, 602

P.2d 957 (1979). The defendant (Just) was convicted of sexual intercourse without

consent based in part on evidence of his prior, uncharged acts against the victim. All of

those acts were sexual in nature, all of them involved the same victim, most of them

involved exactly the type of sexual contact with which Just had been charged, and they

46

all occurred on a “regular” basis during the three-year period prior to the charged act. On

appeal, Just challenged the introduction of this evidence, which prompted this Court to

articulate “a four element test to determine the admissibility of evidence of other crimes

or acts [in] criminal prosecutions such as the one here.” Id. at 268-69, 602 P.2d at 961.

The test contained four substantive requirements for admissibility:

1. The similarity of crimes or acts;

2. nearness in time; and

3. tendency to establish a common scheme, plan or system; and

4. the probative value of the evidence is not substantially

outweighed by the prejudice to the defendant.

Id. at 268-69, 602 P.2d at 961. The Court also adopted three procedural requirements:

(a) Evidence of other crimes may not be received unless there has

been notice to the defendant that such evidence is to be introduced. The

procedures set forth in section 46-18-503 MCA should serve as guidelines

for the form and content of such notice. Additionally, the notice to the

defendant shall include a statement as to the purposes for which such

evidence is to be admitted.

(b) At the time of the introduction of such evidence, the trial court

shall explain to the jury the purpose of such evidence and shall admonish it

to weigh the evidence only for such purposes.

(c) In its final charge, the court should instruct the jury in

unequivocal terms that such evidence was received only for the limited

purposes earlier stated and that the defendant is not being tried and may not

be convicted for any offense except that charged, warning them that to

convict for other offenses may result in unjust double punishment.

Id. at 274, 602 P.2d at 963-64.

¶96 Of particular concern here are the first three substantive requirements of this test

(similarity, nearness in time, and tendency to establish a common scheme, plan, or

system). These criteria were derived from this Court’s other-crimes-or-acts cases decided

prior to the adoption of Rule 404(b). See id. at 267-68, 602 P.2d at 960. And while the

47

Just Court characterized Rule 404(b) as a recent codification of these criteria,5 see id. at

268, 602 P.2d at 960, the fact is that the Just Rule was much narrower than Rule 404(b).

Whereas Rule 404(b) provides that other-acts evidence may be admissible for various

nonpropensity purposes, “such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident,” the Just Rule allowed the

introduction of such evidence for only one purpose: “to establish a common scheme,

plan or system.” It should also be noted that unlike the Just Rule, there is no express

requirement in Rule 404(b) that the uncharged act must always be “similar” and “near in

time” to the charged act.

¶97 Not surprisingly, 12 years after deciding Just, we observed that application of the

Just Rule had “resulted in an apparent narrowing of the purposes listed in Rule 404(b).”

State v. Matt, 249 Mont. 136, 141, 814 P.2d 52, 55 (1991). As an example of this, we

cited State v. Brown, 242 Mont. 506, 791 P.2d 1384 (1990), where the Court held that the

other-acts evidence at issue was inadmissible because the prosecution had failed to

establish a common scheme, plan, or system. We noted in Matt that the Brown Court had

failed to address the dissent’s argument that the evidence was admissible to show the

defendant’s opportunity, motive, and intent. See Matt, 249 Mont. at 141-42, 814 P.2d at

56. In this regard, we acknowledged that other-acts evidence “may be admissible for

many other purposes, including those specifically listed in Rule 404(b).” Id. at 142, 814

P.2d at 56. Consequently, while observing that “the four element rule of Just was proper

5

The Montana Rules of Evidence were adopted December 29, 1976, and became

effective July 1, 1977. Just was decided September 17, 1979.

48

under the facts of that case,” id. at 141, 814 P.2d at 55, we modified the rule’s third

substantive criterion to “incorporate[ ] the various purposes described in Rule 404(b), and

therefore eliminate[ ] the limitation that evidence is admissible only if it shows a common

scheme, plan or system,” id. at 142, 814 P.2d at 56. Hence, that criterion now states:

(3) The 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

with such character; but may be admissible for other purposes, such as

proof of motive, opportunity, intent, preparation, plan, knowledge, identity,

or absence of mistake or accident.

Id. at 142, 814 P.2d at 56. We similarly revised the fourth substantive criterion to

conform to the language of Rule 403. See id.

¶98 Yet, while we modified Just’s third substantive criterion to make it consistent with

the scope of Rule 404(b), the Matt Court wholly failed to consider whether requiring

compliance with the first two substantive criteria for all other-acts evidence is consistent

with the purpose of Rule 404(b). I conclude that it is not. Indeed, “the prevailing view in

the United States is that even dissimilar acts can be logically relevant and admissible on

an uncharged misconduct theory.” Imwinkelried, Uncharged Misconduct Evidence

§ 2:13, 77. Notably, Professor Imwinkelried cites Montana as a jurisdiction that is out of

sync with the rest of the country on this issue. See id. at n. 2 (citing Matt, 249 Mont. 136,

814 P.2d 52). He notes that there is an extensive body of caselaw admitting dissimilar

acts for such purposes as proving the defendant’s identity, intent, and motive. Id. at 77.

He then goes on to explain:

It is true that in some cases, dissimilar acts are properly excluded.

For example, one of the permissible uses of uncharged misconduct

evidence is to identify the defendant by showing that the defendant

49

committed an uncharged act with a modus operandi strikingly similar to

that of the charged act. When offered for this purpose, the uncharged act

must be similar in the extreme to the charged act. The uncharged act is

logically irrelevant for that purpose unless there is a high degree of

similarity between the two acts. But in such cases, the act is excluded

because it is logically irrelevant and not merely because it is dissimilar.

The test should be logical relevance rather than similarity. The

better view is that the judge should demand proof of similarity only if the

proponent’s theory of logical relevance assumes similarity. There are

numerous situations in which dissimilar crimes are logically relevant. In

some jurisdictions, the defendant’s narcotics abuse is admissible to

establish the motive for theft offenses such as robbery; the expensive drug

habit supplies the financial need that motivates the theft. Other courts

would unhesitatingly admit evidence of the defendant’s theft of a car to be

used in a subsequent kidnap attempt; the prior theft is logically relevant to

show the defendant’s overall plan. If a defendant on trial for murder

attempts to suborn perjury, the attempted subornation is admissible to prove

the defendant’s consciousness of guilt of the charged crime. In none of

these cases is the uncharged act “similar” to the charged act. However, in

all these cases, the uncharged act is logically relevant and may qualify

under the uncharged misconduct doctrine.

Id. at 77-78 (footnotes omitted); accord Mueller & Kirkpatrick, Federal Evidence § 4:35,

842 (“Other crimes or acts can suggest a plan to commit the charged crime even though

they are different in nature from the charged offense. Stealing weapons or a car can

indicate a plan to commit bank robbery, for example, since the weapons may be needed

for the robbery and the car may be intended for use in making a getaway.”).

¶99 This approach is clearly correct and consistent with the purpose of Rule 404(b),

which is not to admit or exclude evidence of uncharged acts based on similarity, but

rather is to preclude using evidence of other acts (whether similar or dissimilar) to

establish a propensity inference based on character. Recall that Rule 404(b)’s first

sentence has two components. Under the first component, uncharged acts may not be

used “to prove the character of a person.” Thus, the prosecutor may not prove that the

50

defendant is inclined to wrongdoing in general or that the defendant tends to commit a

particular type of wrongdoing (such as rape or burglary). Imwinkelried, Uncharged

Misconduct Evidence § 2:19, 103. But the prohibition on this type of proof is not total.

According to the sentence’s second component, proof of a person’s character is barred

only when, in turn, character is used “in order to show action in conformity therewith.”

Thus, the prohibition comes into play only when the prosecutor uses character as “a way

station on the road to an ultimate inference of conduct in conformity with character.” Id.

at 103-04. Stated differently, Rule 404(b) expressly prohibits only one theory of logical

relevance, which may be depicted as follows: the defendant’s uncharged act → the

defendant’s subjective character, disposition, or propensity → the defendant’s conduct in

conformity with his or her character. See id. at 104. Rule 404(b) is implicated whenever

the other-acts evidence has a tendency to lead the jury into this forbidden propensity

inference. But that can happen from both similar and dissimilar uncharged acts. On one

hand, the prosecutor might offer evidence that the defendant previously committed a

crime similar to the charged offense, which could lead the jury improperly to infer that

because she did it once, she did it again. On the other hand, the prosecutor might offer

evidence that the defendant previously committed a crime dissimilar to the charged

offense, which likewise could lead the jury improperly to infer that because she

committed the previous crime, the defendant is inclined to wrongdoing or is generally a

criminal and, as such, is more likely to have committed the charged offense. But in both

instances, the evidence would be admissible under Rule 404(b) for a nonpropensity

purpose. For example, the similar crime might be admissible to show absence of mistake

51

or accident; and the dissimilar crime (e.g., a carjacking) might be admissible to show the

defendant’s overall plan to use the car in the charged offense (e.g., a kidnapping), which

in turn shows that he is the perpetrator of that offense and had the requisite mens rea.

¶100 Likewise, in the present case, Rule 404(b) prohibited the State from offering

evidence of the spurious emails and letters, the hang-up phone calls, and the petty

vandalism to prove that Stout had a bad character and acted in conformity with that

character on the night in question. But Rule 404(b) allowed the State to present this

evidence for another purpose, such as proof of Stout’s plan. Indeed, under the State’s

theory in this case, these uncharged acts were all part of Stout’s plan to kill Bill and

escape responsibility by shifting suspicion and blame to Barbara Miller. The fact that the

acts of harassment were not “similar” to the act of homicide should not have precluded

the State from introducing this evidence under Rule 404(b). Whether similarity is

required between the uncharged act and the charged act depends on the particular purpose

for which the evidence is offered and the proponent’s theory of logical relevance.6

6

Another theory that requires similarity between the charged and uncharged acts

is the doctrine of chances, which may be used to establish the defendant’s intent. This

doctrine teaches that the more often the defendant performs the actus reus, the smaller is

the likelihood that the defendant acted with an innocent state of mind. See Imwinkelried,

Uncharged Misconduct Evidence § 5:06, 15-16. For example, “ ‘if A while hunting with

B hears the bullet from B’s gun whistling past his head, he is willing to accept B’s bad

aim or B’s accidental tripping as a conceivable explanation; but if shortly afterwards the

same thing happens again, and if on the third occasion A receives B’s bullet in his body,

the immediate inference (i.e. as a probability, perhaps not a certainty) is that B shot at A

deliberately; because the chances of an inadvertent shooting on three successive similar

occasions are extremely small . . . .’ ” Id. at 16-17 (quoting Wigmore, Evidence vol. 2,

§ 302 (3d ed., Little, Brown and Co.)). It should be noted that the inference of deliberate

conduct under this theory is based on an objective improbability of accident, rather than a

subjective probability inferred from the defendant’s character. See id. at 17-18.

52

Similarity is not an inherent requirement of all purposes for which other-acts evidence

might be offered, and we have muddled up our Rule 404(b) jurisprudence by suggesting

in Just, and again in Matt, that Rule 404(b) only applies to or is concerned with evidence

of “similar” uncharged acts. A blanket rule that other-acts evidence must always be

similar to the charged act is simply incorrect and should be overruled.7

¶101 There also is no basis in Rule 404(b) for requiring the uncharged act to be “near in

time” to the charged act in every case. With respect to plan, for example,

[a] master criminal may devise a long-term plan including stages separated

by extended periods of time and great distances. It is true that the longer

the period of time, the more difficult it is to infer a nexus between the

charged and uncharged crimes. But, as a matter of logical relevance

analysis, it makes no sense to adopt a categorical rule that the crimes be

proximate to each other.

Imwinkelried, Uncharged Misconduct Evidence § 3:22, 116 (footnotes omitted). Indeed,

the question of whether the uncharged act is too remote in time is ultimately addressed by

Matt’s fourth substantive requirement, which states that the evidence may be excluded if

its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, misleading of the jury, considerations of undue delay, waste of

time, or needless presentation of cumulative evidence. Matt, 249 Mont. at 142, 814 P.2d

at 56; see also M. R. Evid. 403. Thus, whether an uncharged act is truly too remote in

7

At this point, the similarity requirement is largely meaningless in any event, as

we have equated “similarity” with mere “relevance.” See State v. Ayers, 2003 MT 114,

¶ 80, 315 Mont. 395, 68 P.3d 768 (“ ‘[T]here is no rigid rule for determining when

conduct is sufficiently similar[;] rather, the determination of similarity depends on

whether the conduct has some relevance to prove an issue in dispute.’ ” (quoting State v.

Weldy, 273 Mont. 68, 75, 902 P.2d 1, 5 (1995), in turn citing State v. Keys, 258 Mont.

311, 314-15, 852 P.2d 621, 623 (1993))).

53

time will depend on the particular purpose for which the evidence is offered and the

proponent’s theory of logical relevance; and if it has little probative value, relative to its

prejudicial effect, it should be excluded on that basis.

¶102 When it comes to introducing other-acts evidence, it is preferable that prosecutors

and courts comply with Rule 404(b), Rule 403, and the Modified Just Rule’s procedural

criteria (notice and cautionary instructions), rather than circumventing those requirements

by way of § 26-1-103, MCA. Yet, we have encouraged the latter approach by making the

Modified Just Rule totally unworkable with respect to many legitimate Rule 404(b)

purposes. Conditioning admissibility under Rule 404(b) on the similarity and nearness in

time of the uncharged acts—criteria which, it should be recalled, originated in our pre-

Rule 404(b) other-crimes-or-acts caselaw—is, in many cases, legally unsupported and

only encourages the intellectually dishonest approach of resorting to the largely

unrestricted transaction rule in cases where Rule 404(b) clearly governs. We therefore

should jettison the first two substantive requirements of the Modified Just Rule and

simply require the following criteria in order to admit other-acts evidence:

1. advance notice, as required by statute (see § 46-13-109, MCA);

2. compliance with Rule 404(b): the evidence must be offered for a purpose

other than to show action in conformity with character;

3. compliance with Rule 402: the evidence must be relevant to a material issue in

light of the purpose for which it is offered;

4. compliance with Rule 403: the probative value of the evidence must not be

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; and

5. compliance with Rule 105: the court, upon request, must restrict the evidence

to its proper scope and instruct the jury that the evidence is to be considered

only for the proper purpose for which it was admitted (see also § 46-16-401(1),

MCA).

54

Cf. Huddleston, 485 U.S. at 691-92, 108 S. Ct. at 1502 (concluding that the last four of

these criteria provide appropriate protection against the introduction of unduly prejudicial

evidence under Rule 404(b)). This approach is faithful to our Rules of Evidence, which

is certainly preferable to the arbitrary approach of Just and Matt. Furthermore, it should

be noted that in meeting the second, third, and fourth of these requirements, the

prosecution would have to establish the other act’s similarity and nearness in time only if

the prosecutor’s theory of logical relevance required these showings.

D. Summary

¶103 To conclude this discussion, Rule 404(b) applies to any uncharged act offered into

evidence that has a tendency to impugn the defendant’s character. Rule 404(b) does not

bar the evidence as such; rather, it bars a certain theory of admissibility. Specifically, the

evidence is not admissible to prove the character of a person in order to show action in

conformity therewith, but it may be admissible for other logically relevant purposes that

do not require an inference of the defendant’s criminal disposition. In the present case,

for example, evidence of Stout’s harassment campaign could have been admitted (if it

also satisfied Rule 403, which I believe it would have) to show plan, preparation, and

identity.8 Because the Modified Just Rule would have incorrectly precluded this result,

8

The same is true of the evidence (unchallenged by Stout in this appeal) that the

registry of Stout’s personal computer showed Internet searches including “How to Kill

Someone,” “Poison and Get Away with It,” and “How to Put a Person to Sleep,” as well

as the evidence that the she wrote a note, which investigators found in her nightstand,

with instructions on how to fire the 9 mm pistol. While this evidence was not admissible

to show that Stout had an evil character and acted in conformity with that character on the

night Bill was shot, it could be introduced for some other purpose, such as evidence of

55

and because the Modified Just Rule is inconsistent with Rule 404(b)’s purpose and scope,

I would revise this rule in the manner suggested above.

III. Section 26-1-103, MCA

¶104 Before addressing the Court’s approach under the transaction rule in this case, I

note two initial matters that bear on this discussion.

A. Inseparable, Intrinsic, or Inextricably Intertwined Acts

¶105 Various commentators discuss the notion of “intrinsic” crimes, wrongs, or acts and

whether these are covered by Rule 404(b). For instance, Professors Wright and Graham

offer the example of a victim who testifies in a rape prosecution that the defendant broke

into her apartment and forced her to have sexual relations at gunpoint. See Wright &

Graham, Federal Practice & Procedure: Evidence § 5239, 445. This testimony can be

said to describe incidents of burglary, malicious destruction of property, assault, false

imprisonment, and violations of firearms regulations. Wright and Graham note that the

common law device for dealing with the admissibility of these uncharged acts was the

doctrine of “inseparable crimes,” which Wigmore would have codified as follows:

“Whenever the doing of a criminal act charged appears to have been

accompanied by the doing of one or more other criminal acts, so that it is

not practicable to separate them in the course of producing evidence, the

other acts may be proved by virtue of the principle of Multiple

Admissibility * * * but not for the purpose of using them evidentially

against the defendant’s moral character.”

Id. at 446 (quoting Wigmore, Code of Evidence, 81 (3d ed. 1942), and citing Wigmore,

Evidence vol. 1, § 218 (3d ed. 1940)). Wright and Graham observe that this doctrine

plan, which in turn would support the legitimate inferences that she was the person who

killed Bill and that she did so purposely or knowingly.

56

seems justifiable when used to cover such situations as where the seller of contraband

must necessarily be shown to have possessed it, or where the band of robbers is shown to

have seized hostages to make good their escape from the scene of the crime, but not to

admit evidence that the car used in the robbery was stolen or that the defendant in a rape

prosecution pilfered his victim’s jewels on the way out, and certainly not to admit

evidence that merely serves to “explain” the charged crime. Id. at 446-47.9 Notably,

Wigmore’s approach seems to contemplate that proof of “inseparable” crimes is a

permissible purpose for introducing uncharged misconduct evidence under Rule 404(b).

Wright and Graham, however, suggest that when an uncharged act is “so interwoven with

the charged crime that it is impossible to prove one without revealing the other,” it is

simply not an “other” crime, wrong, or act within the meaning of Rule 404(b). Id. at 448.

¶106 Somewhat similarly, Professor Imwinkelried explains that where the uncharged

act occurred simultaneously with the charged act and the two acts are “realistically

inseparable” or “indivisible” (e.g., because the witness testifying to the charged act

cannot avoid mentioning the uncharged act), the uncharged act is exempt from the regular

rules for the admission of other-acts evidence. See Imwinkelried, Uncharged Misconduct

Evidence § 6:30, 87-90. Professors Mueller and Kirkpatrick, in contrast, argue that

9

See also id. at 447 (noting that the doctrine of inseparable crimes “became

completely perverted when courts began to use the infamous Latin tag ‘res gestae’ to

describe the rule”); id., 2010 Supp., 569 n. 96 (noting that some courts have distorted the

“unit of criminality” concept in ways that make the restrictions on other-acts evidence “of

little moment”—not unlike this Court’s approach in the present case, where the homicide,

the spurious emails and letters, the hang-up phone calls, and the petty vandalism have all

been deemed to be part of a single “transaction,” rather than the distinct charged act

(homicide) and uncharged act (harassment campaign) they are).

57

“putting proof of inseparable crimes beyond reach of [Rule 404(b)] is unwise and

wrong.” Mueller & Kirkpatrick, Federal Evidence § 4:33, 818. Still, they acknowledge

that when proof of the charged offense “cannot avoid” revealing an “inextricably

intertwined” uncharged act, it makes sense enough to say that the uncharged act is not an

“other” crime, wrong, or act under Rule 404(b). See id. at 815, 818. Thus, for example,

an eyewitness would be allowed to testify that the defendant struck the teller in the course

of demanding the money, even though the defendant was not charged with assault or

battery. See id. at 817-18.

¶107 Professor Leonard discusses the notion of “intrinsic” or “inextricably intertwined”

acts at some length. See Leonard, The New Wigmore: Evidence of Other Misconduct and

Similar Events, ch. 5. Ultimately, he concludes that the use of these terms “invites

sloppy, nonanalytical decision-making.” Id., § 5.2, 327. He argues that “describing

uncharged misconduct as either ‘intrinsic’ or ‘extrinsic’ neither provides a predictable

way to determine admissibility nor conduces to the sort of analysis that needs to be

undertaken to determine admissibility.” Id. at 330. Indeed, he notes that courts which

follow this approach “often fail to take seriously the dangers associated with misconduct

evidence,” id., § 5.4, 365, and “have lost sight” of the purposes of the limitations on the

admissibility of such evidence, id., § 5.2, 327. Leonard suggests that courts should

approach intrinsic or inextricably intertwined evidence in the same way they approach

extrinsic evidence: “by measuring its probative value for a legitimate purpose and

comparing that value to the tendency of the evidence to cause unfair prejudice.” See id.,

§ 5.1, 320, § 5.2, 330. In effect, all other-acts evidence would be subject to analysis

58

under Rule 404(b) and Rule 403, regardless of whether it is categorized as “intrinsic” or

“extrinsic.”

¶108 The courts in United States v. Taylor, 522 F.3d 731 (7th Cir. 2008), and United

States v. Bowie, 232 F.3d 923 (D.C. Cir. 2000), also take a dim view of the

intrinsic/extrinsic distinction and the “inextricably intertwined” formula, characterizing

the latter as “unhelpfully vague.” Taylor, 522 F.3d at 734; accord Bowie, 232 F.3d at

928. They note that in one respect the standard is circular (“inextricably intertwined

evidence is intrinsic, and evidence is intrinsic if it is inextricably intertwined”), while in

another respect it is overbroad (“[t]he ‘complete the story’ definition of ‘inextricably

intertwined’ threatens to override Rule 404(b)”). Bowie, 232 F.3d at 928; Taylor, 522

F.3d at 734. Furthermore, the standard’s vagueness, in turn, “invites prosecutors to

expand the exceptions to [Rule 404(b)] beyond the proper boundaries of the exceptions,”

Taylor, 522 F.3d at 734, and creates “a danger that finding evidence ‘inextricably

intertwined’ may too easily slip from analysis to mere conclusion,” Bowie, 232 F.3d at

928. The critical problem with this approach, of course, is that “treating evidence as

inextricably intertwined not only bypasses Rule 404(b) and its attendant notice

requirement, but also carries the implicit finding that the evidence is admissible for all

purposes notwithstanding its bearing on character, thus eliminating the defense’s

entitlement, upon request, to a jury instruction.” Bowie, 232 F.3d at 928. The Taylor and

Bowie courts acknowledge that in “a narrow range of circumstances,” the evidence of the

charged crime may “unavoidably reveal” the uncharged act, but they conclude that most

59

“inextricably intertwined” evidence properly can and should be admitted pursuant to

Rule 404(b). See Taylor, 522 F.3d at 734-35; Bowie, 232 F.3d at 929.

¶109 There seems to be, then, a general recognition that in some situations, proof of the

charged act will unavoidably reveal an uncharged act because the uncharged act is so

interwoven with the charged act that it is simply impossible to separate them in the

course of producing evidence. And much of the controversy, in turn, appears to center on

whether the “inextricably intertwined” formula is an appropriate standard for determining

if the uncharged act falls into this category. Professor Leonard and the Taylor and Bowie

courts make persuasive arguments for rejecting the “inextricably intertwined” test;

however, the fact is that in Montana we have a statute on the books (§ 26-1-103, MCA)

that must be given whatever limited meaning it deserves relative to Rule 404(b), and I

recently agreed with the Court that the “inextricably intertwined” formula is an

appropriate standard for applying this statute.10 See State v. Guill, 2010 MT 69, ¶¶ 49-55,

355 Mont. 490, 228 P.3d 1152 (Nelson, J., concurring). Moreover, I believe that the

problem is not so much the standard itself as it is this Court’s repeated manipulations of it

in order to reach the desired result in the given case. Rather than continue that approach,

we instead should revise the Modified Just Rule in the manner suggested above to make

Rule 404(b) more accessible and require that all but a very narrow category of other-acts

evidence be admitted pursuant to the rule as revised. As suggested by our decision in

10

The statute states, in full: “Declaration, act, or omission which is a part of the

transaction. Where 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.” Section 26-1-103, MCA.

60

Guill (discussed in Section C below), the authorities cited above, and the language of

§ 26-1-103, MCA, I would limit the transaction rule to uncharged crimes, wrongs, or acts

that truly cannot be separated from the charged act in the course of producing evidence.

B. The Attorney General’s Double Standard

¶110 In this connection, the State argues for an exceptionally broad interpretation of the

transaction rule in this case. Specifically, the State takes the position that evidence of

“the Barbara Miller Story” was admissible under the transaction rule because Bill’s death

“left perplexing circumstances that required explanation.” Although the State recognizes

that this evidence was admissible for a variety of Rule 404(b) purposes—to establish the

perpetrator’s “identity” and “motive,” and to show that Stout engaged in a long-term and

persistent “preparation or planning” of her husband’s murder—the State maintains that

the evidence was properly admitted instead as transaction evidence under § 26-1-103,

MCA, to “explain the puzzling circumstances” of Bill’s death and answer the “stupefying

question” of “why” he died and “who” killed him—basically, “to complete the story of

murder.” Thus, under the State’s theory in this case, which the Court adopts wholesale,

evidence that is merely explanatory of some facet of the charged offense—that answers

the “who” or the “why” of the crime, that explains any “puzzling circumstances” in the

case, or that “completes the story”—is admissible under the transaction rule, even if (as

here) the evidence falls squarely within the parameters of Rule 404(b) and even if (as

here) the evidence is of separate incidents that occurred years earlier.

¶111 However, notwithstanding this broad interpretation, the State takes the position in

State v. Henson (No. DA 09-0189), 2010 MT 136, ___ Mont. ___, ___ P.3d ___, that the

61

transaction rule should be interpreted very narrowly so as not to allow evidence of

uncharged acts merely for contextual purposes, particularly if the acts were “separate

incidents at different times and places.” See Brief of Appellee at 19-22. In Henson, the

defendant (Henson) raised the defense of justifiable use of force in the shooting death of

Larry Kingsley; and in order to prove that defense, she sought (unsuccessfully) under the

transaction rule to introduce “contextual evidence” of Kingsley’s hostile interactions with

various persons on the day of his death and during the weeks preceding his death. On

appeal, Henson argues that the district court erred in excluding this evidence because

Kingsley’s interactions were “vital to context” and “provided an explanation for behavior

which was out of the ordinary.” In other words, she claims the evidence was admissible

to explain “why” she shot Kingsley: “Without access to Kingsley’s continuing and

escalating pattern of bizarre and threatening conduct, it was difficult for Henson to

provide the jury with an explanation of the bizarre and threatening situation in which she

found herself with Kingsley.” Henson asserts that evidence of Kingsley’s prior conduct

“was necessary for the jurors to evaluate Kingsley’s death in its true and full context.”

See Brief of Appellant at 17-23; Reply Brief of Appellant at 8-10.

¶112 Thus, the Attorney General’s Office now finds itself, ironically, having to defend

against the broad interpretations of the transaction rule which it has argued, and this

Court has adopted, in previous transaction rule cases. Indeed, Henson finds support for

her argument in State v. McLaughlin, 2009 MT 211, ¶ 20, 351 Mont. 282, 210 P.3d 694

(evidence that “provides context to the criminal act” and “serve[s] to explain” why the

defendant would engage in the conduct in question is admissible under the transaction

62

rule), State v. Mackrill, 2008 MT 297, ¶¶ 42-43, 345 Mont. 469, 191 P.3d 451 (evidence

of “the context in which the criminal act occurred” is admissible under the transaction

rule), and State v. McCaslin, 2004 MT 212, ¶ 34, 322 Mont. 350, 96 P.3d 722 (evidence

illustrating the defendant’s behavior subsequent to his arrest is admissible under the

transaction rule “in order to provide context to the criminal act”). As Justice Rice notes

in his Henson concurrence, Kingsley’s threatening interactions are similar to the incidents

we affirmed under the transaction rule in Mackrill and McCaslin. Henson, ¶ 39 (Rice, J.,

concurring). Moreover, Henson’s argument certainly would prevail under the standard

articulated by the Court today. See Opinion, ¶ 45 (evidence that “provide[s] the essential

context to prove to the jury how and why the crime occurred” is admissible under the

transaction rule). And it likewise would satisfy the “why” standard argued by the State in

the present case.

¶113 Yet, despite advocating for that broad interpretation of the transaction rule in this

case, and despite arguing that classic Rule 404(b) evidence is admissible under the

transaction rule in this case, the Attorney General hypocritically argues in Henson that

there is a “distinction” between transaction rule evidence and Rule 404(b) evidence and

that “[t]he transaction rule should not be expanded to the point that the prohibition of

character evidence under Rule 404(b) is swallowed.”11 Furthermore, in an even greater

11

As support for this proposition, the State cites State v. Berosik, 2009 MT 260,

¶ 46, 352 Mont. 16, 214 P.3d 776, which in turn cites my special concurrence in State v.

Crosley, 2009 MT 126, ¶ 67, 350 Mont. 223, 206 P.3d 932, where I argued (presciently)

that if this Court did not rein in its ever-expanding pronouncements concerning the scope

of the transaction rule, the rule would completely swallow the Modified Just Rule and

Rule 404(b)’s general prohibition against character evidence.

63

display of chutzpah, the Attorney General contends that the transaction rule is reserved

for prosecutors to prove a defendant’s prior bad acts and is not available to defendants to

prove the acts of a third party. Defendants, rather, must follow “the applicable rules of

evidence”—an assertion which prompted Henson to respond that, “[i]n essence, the State

argues that what is good for the gander is not good for the goose.” In point of fact, the

double standard proffered by the Attorney General has absolutely no support in the

language of § 26-1-103, MCA.

¶114 The State’s inconsistent positions in Henson and the present case are

disingenuous, if not outright duplicitous.12 And the State’s double standard is all the

more mind-boggling in light of its recent recognition in State v. Knowles (No. DA

09-0558) that “the ‘role of the prosecutor is special—it is not to act as a zealous advocate,

rather it is to protect the rights of citizens, including citizens accused of crime.’ ” Brief

of Appellee at 18 (quoting State v. Duffy, 2000 MT 186, ¶ 19, 300 Mont. 381, 6 P.3d 453,

in turn citing Rule 3.8 of the Montana Rules of Professional Responsibility).

Nevertheless, it must be acknowledged that the State was able to find support for its

differing arguments (here and in Henson) in the widely varying statements this Court has

made in its discussions of the transaction rule in past cases.13 Indeed, the blame for the

morass of conflicting rules and standards falls squarely on the shoulders of this Court,

12

If the Attorney General’s Office wants to argue for a broad interpretation of the

transaction rule, as they have done in case after case, that is their business. But they

should be expected and required to live with that interpretation. To suddenly adopt the

position that the transaction rule should be construed narrowly just because it is the

defendant who is invoking it is, in my view, intellectually dishonest.

13

Before Henson, however, we have never held that the transaction rule is a

privilege available only to prosecutors.

64

which continually applies the transaction rule in an inconsistent, confusing, and ad hoc

manner. The State’s arguments in Henson and the present case show that it is possible to

argue diametrically opposing views regarding the breadth and use of the transaction rule

in two separate cases and to support those opposing views with citations to this Court’s

cases. The problem is that, with very few exceptions, we routinely pay lip service to the

“inextricably linked” requirement and then affirm the admission of the evidence at issue

because it is “evidence of the crime” or “provides context” or is “explanatory of”

something in the case. Today’s decision is yet another example of this approach.

C. The Court’s Decision

¶115 Indeed, turning to the Court’s decision, we recently clarified the purpose of the

transaction rule and the exacting requirements for admitting evidence under § 26-1-103,

MCA, in Guill. We explained that “[t]he rationale for admitting transaction evidence is,

first, that it is theoretically difficult to subdivide a course of conduct into discrete

criminal acts and ‘other’ conduct and, second, practically speaking it is difficult for a

witness to testify coherently to an event if the witness is only permitted to reference the

minutely defined elements of the crime.” Guill, ¶ 27 (citing Wright & Graham, Federal

Practice & Procedure: Evidence § 5239, 446). Thus, based on the “confluence of our

recent jurisprudence, practicality, and persuasive authority,” we held that to be admissible

under the transaction rule, the evidence in question must be “inextricably linked to” or

“inextricably intertwined with” a fact in dispute. See Guill, ¶¶ 25-30, 36, 42, 45.

¶116 The Court acknowledges the “inextricably linked” standard as controlling in the

present case. Opinion, ¶¶ 38, 41. The plain and undisputed meaning of “inextricable” is

65

“incapable of being disentangled or untied.” Merriam-Webster’s Collegiate Dictionary

597 (10th ed., Merriam-Webster 1997). Hence, the evidence—or, more precisely, the

factual matter the proponent seeks to prove with the evidence—must be so entangled or

interwoven with a fact in dispute that it is simply impossible to separate them in the

course of producing evidence. See Guill, ¶ 27; Taylor, 522 F.3d at 734; Wright &

Graham, Federal Practice & Procedure: Evidence § 5239, 446, 448. Here, Stout was

charged with purposely or knowingly causing Bill’s death, and the State produced

evidence that she was alone with him at the time he died; that Bill was shot in the back of

the head; that he was found in his bed; that the gun was found in the saddlebag of his

motorcycle in the garage (thus undercutting any suicide theory); that the lights were on in

the bedroom area of the house in the middle of the night (which neighbors said was

unusual); that Stout stood to recover a $500,000 life insurance benefit and the home with

over $500,000 in equity; that the ammunition box had been made to look like it was still

full; that investigators found an unfinished laundry-washing project containing wet

clothes, smelling strongly of bleach, in the laundry hamper; and that investigators also

found in the same laundry hamper a latex glove, which contained Stout’s DNA on the

inside and imbedded gunshot residue on the outside. It was by no means impossible, or

even difficult, to present this evidence without also revealing that Stout had stalked her

family and friends during the years prior to Bill’s death. More to the point, it was

practicable for the State’s witnesses to testify as to the events of the night in question and

the physical evidence described above without having to reveal the various uncharged

acts comprising Stout’s harassment campaign. The spurious emails and letters, the

66

hang-up phone calls, and the acts of petty vandalism were all “other crimes, wrongs, or

acts” covered by Rule 404(b), not § 26-1-103, MCA.

¶117 Hence, if the Court applied the “inextricably linked” standard true to its meaning,

then it would be necessary to reverse Stout’s conviction and remand for a new trial. But

instead, the Court perversely twists the meaning of “inextricably linked” to broadly

encompass any factual matter that is “evidence of the crime” or that serves to “complete

the picture” or “provide essential context” of the offense. Opinion, ¶¶ 38, 45. This

manipulation shows that this Court “ ‘understand[s] as well as the next court how to . . .

articulate the correct legal principle, and then perversely fit into that principle a set of

facts to which the principle obviously does not apply.’ ” TXO Prod. Corp. v. Alliance

Resources Corp., 509 U.S. 443, 500, 113 S. Ct. 2711, 2742 (1993) (O’Connor, White, &

Souter, JJ., dissenting) (ellipsis in TXO Prod.) (quoting Garnes v. Fleming Landfill, Inc.,

413 S.E.2d 897, 907 (W.Va. 1991)). Indeed, the Court deftly demonstrates that it can

“ ‘mouth the correct legal rules with ironic solemnity while avoiding those rules’ logical

consequences.’ ” Id. (quoting Garnes, 413 S.E.2d at 907). I cannot agree with this sort

of decision-making. “[C]ourts must do more than recite the [applicable] rule. They also

must apply it, faithful to its letter and cognizant of the principles underlying it.” Id. at

500, 113 S. Ct. at 2741-42.

¶118 Setting aside the Court’s utter distortion of the “inextricably linked” standard, the

fundamental error in the Court’s approach is its mistaken premise that Rule 404(b) is not

implicated where the uncharged act is “evidence of the crime.” Here, for example, the

Court reasons that (1) Stout’s efforts to paint Miller as a deranged stalker and murder

67

suspect were an integral part of Stout’s plan to kill Bill, (2) evidence of the defendant’s

planning of the crime is evidence of the crime itself and not evidence of an “other” crime,

wrong, or act, and (3) Rule 404(b), therefore, is not implicated. Opinion, ¶ 45. This

conception of Rule 404(b) is patently erroneous. First of all, the crime with which Stout

was charged was deliberate homicide, and nowhere in the definition of this offense does

the word “plan” appear. See § 45-5-102(1)(a), MCA (“A person commits the offense of

deliberate homicide if the person purposely or knowingly causes the death of another

human being.”). Hence, the evidence that Stout manufactured the harassment campaign

to implicate Miller was most definitely evidence of an “other” crime, wrong, or act.14

Second, as explained above, Rule 404(b) is implicated whenever the proffered evidence

has a tendency to impugn the defendant’s character. Whether the evidence can be

categorized as “evidence of the crime” is wholly beside the point. Rule 404(b) is a rule

of admissibility—more specifically, a narrow restriction on otherwise relevant evidence:

evidence of other crimes, wrongs, or acts cannot be introduced to prove action in

conformity with character, but it can be introduced for any logically relevant purpose that

does not require an inference of the defendant’s criminal disposition. This rule applies

14

The “actus reus” of a crime is “[t]he wrongful deed that comprises the physical

components of a crime and that generally must be coupled with mens rea to establish

criminal liability; a forbidden act <the actus reus for theft is the taking of or unlawful

control over property without the owner’s consent>.” Black’s Law Dictionary 37 (Bryan

A. Garner ed., 7th ed., West 1999). Here, the actus reus was causing Bill’s death.

Section 45-5-102(1)(a), MCA (deliberate homicide). It was not causing her family and

friends substantial emotional distress or reasonable apprehension of bodily injury or

death by repeatedly harassing, threatening, or intimidating them with spurious emails and

letters, hang-up phone calls, and acts of petty vandalism. Section 45-5-220(1), MCA

(stalking). These latter acts were “other” crimes, wrongs, or acts offered as evidence of

plan, preparation, and identity in order to prove the charged homicide.

68

regardless of whether the evidence is “evidence of the crime”; and, in point of fact,

evidence of uncharged misconduct offered under Rule 404(b) is typically “evidence of

the crime.” Indeed, that is the whole purpose of offering evidence of an uncharged act:

to establish the defendant’s motive, plan, preparation, opportunity, etc., which in turn

tends to prove that she committed the charged offense. See Weinstein & Berger,

Weinstein’s Federal Evidence § 404.20[1], 404-39 (although other-acts evidence is not

admissible to show character in order to prove conduct, such evidence is admissible “to

show other facts that may be in issue,” including “a consequential fact, such as intent or

knowledge,” or “a proposition, such as motive, that through a series of inferences may

tend to establish the probability of a consequential fact”). In the present case, for

example, the harassment campaign was evidence of Stout’s intent (her purpose and

knowledge) and her identity as the person who caused Bill’s death. Lastly, there is no

logical basis, let alone legal authority, for the Court’s proposition that all “evidence of the

crime” is part of the “transaction” and, as such, is admissible under § 26-1-103, MCA.

As the Bowie court quite correctly pointed out, “it cannot be that all evidence tending to

prove the crime is part of the crime. If that were so, Rule 404(b) would be a nullity.”

Bowie, 232 F.3d at 929 (emphases added).

¶119 The Court contends that there are clear difficulties determining “the line to be

drawn between the evidence without which the conviction could not occur and all other

evidence offered by the prosecution.” Opinion, ¶ 47. That may be true, but it is not the

approach I am suggesting. Rather, my argument is that in order to give independent

meanings to Rule 404(b) and § 26-1-103, MCA, as we are required to do (see ¶ 82,

69

supra), we must draw a line between “other” acts and “inextricably linked” acts as the

latter term is defined in Guill and the authorities discussed in ¶¶ 105-109 above. This is

not to suggest that we should exclude a broader range of other-acts evidence in criminal

trials. To the contrary, I believe that such evidence is routinely admissible, but under

Rule 404(b)—which, it should be recalled, is open-ended with respect to the logically

relevant, nonpropensity purposes for which such evidence may be offered. My position

is that we should apply Rule 404(b) to the vast majority of other-acts evidence and that

§ 26-1-103, MCA, should apply to only a very narrow category of such evidence. I

recognize this would require prosecutors to give notice of other-acts evidence more often,

and it may require trial courts to instruct the jury on the use of such evidence in more

cases. But I believe this is the better, and not unduly burdensome, approach. It will

ensure that the parties and the courts are actually engaging in a critical analysis of the

purpose for which the evidence is being offered; it will ensure that the balancing of Rule

403 is conducted; and it will protect the defendant’s right to a fair trial—none of which

are specifically required by our jurisprudence under the transaction rule.15 Granted, our

current Modified Just Rule is largely unworkable, and I do not suggest that prosecutors

should be required to regularly comply with that rule as currently written. That is why I

am suggesting we revise the rule in the manner set out above (see ¶ 102, supra) and then

15

Evidence that is admissible under the transaction rule is still subject to balancing

under Rule 403. See e.g. State v. Detonancour, 2001 MT 213, ¶¶ 29-32, 306 Mont. 389,

34 P.3d 487; accord Guill, ¶ 26; see also M. R. Evid. 403 (“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.”). However, we

have not been consistent in requiring such balancing as a matter of course.

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require compliance with § 46-13-109, MCA, and Rules 404(b), 402, 403, and 105 in most

cases.

¶120 The Court issues two directives regarding compliance with the Rules of Evidence.

Unfortunately, however, these directives ring hollow. On one hand, the Court cautions

that the transaction rule “should not be used to avoid Rule 404 and the notice and

instruction requirements it specifies,” Opinion, ¶ 39, and that “the prosecutor is required

to conform to the Montana Rules of Evidence,” Opinion, ¶ 46, two statements with which

I completely agree. Yet, on the other hand, the Court ratifies the very conduct it has

cautioned against: the prosecutor’s action in the present case of using the transaction rule

to avoid Rule 404(b) and its notice and instruction requirements.16 Cautions, warnings,

and directives have little meaning when there are no consequences for ignoring them; and

the message we are sending today is that our seeming directives—such as those in ¶¶ 39

and 46 of today’s Opinion and in ¶ 46 of State v. Berosik, 2009 MT 260, 352 Mont. 16,

214 P.3d 776—are nothing more than aspirational requests.

¶121 As a final matter, while it is frustrating that the Court has completely distorted the

meaning of “inextricably linked” for purposes of the present case, it is even more

troubling that the Court has adopted a double standard under which the State may use the

16

It does not appear that the Ravalli County Attorney’s Office even attempted to

comply with the Modified Just Rule in this case. The Deputy County Attorney declared

on the Omnibus Hearing Memorandum that the prosecution did not intend to introduce

evidence of other crimes, wrongs, or acts under Rule 404(b). But then, subsequently, he

invoked the transaction rule to introduce evidence that Stout had “stalked” her family,

claiming that this evidence was admissible “as part of the complete transaction of events

leading up to killing Bill Stout.” He explained that the evidence tended to prove Stout’s

“intent” and would show that she had a long-term “plan” to kill Bill and put the blame on

Barbara Miller—both of which are Rule 404(b) purposes.

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transaction rule to provide “the essential context to prove to the jury how and why the

crime occurred,” Opinion, ¶ 45, but defendants are denied that very same use of the rule,

Henson, ¶ 26. The Court’s approach is not only patently unfair, but also of dubious legal

validity. See People v. Cruz, 643 N.E.2d 636, 654 (Ill. 1994) (“[T]here is a distinction

between the limits imposed on a defendant’s use of other-crimes evidence to exculpate

himself and the State’s use of such evidence to prosecute him.”); Imwinkelried,

Uncharged Misconduct Evidence vol. 2, § 10:43, 114 (“[T]he standard for admitting third

party’s misdeeds to exculpate the defendant should be less stringent than the test for

admitting the defendant’s uncharged misconduct.”).

CONCLUSION

¶122 For the reasons just discussed, I strenuously disagree with the Court’s analysis

under § 26-1-103, MCA. I believe that our decision will only encourage further abuse of

the transaction rule. Indeed, under the Court’s holding that “evidence of the crime”

satisfies the “inextricably linked” standard, the transaction rule has, for all practical

purposes, finally swallowed Rule 404(b). See Bowie, 232 F.3d at 929 (“[I]t cannot be

that all evidence tending to prove the crime is part of the crime. If that were so, Rule

404(b) would be a nullity.” (emphases added)). Moreover, because the Court holds in

this case that the State may use evidence of uncharged misconduct to convict a

defendant—although notice of this evidence was not given under § 46-13-109, MCA;

although this evidence was not analyzed to ensure a nonpropensity purpose under Rule

404(b); although this evidence was not subjected to balancing under Rule 403; and

although cautionary instructions were not given pursuant to Rule 105 and § 46-16-401(1),

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MCA—defendants will have to pursue federal due process claims in order to protect their

right to a fair trial. See Burden v. Zant, 903 F.2d 1352, 1363 (11th Cir. 1990) (habeas

relief justified if the admission of other-crimes evidence deprived the defendant of

fundamental fairness and due process of law).

¶123 There is a better approach, however—one that will facilitate the introduction of

other-acts evidence while protecting against unfair prejudice and misuse of that evidence

by the fact-finder. Indeed, the repeated battles in the trial courts and this Court over the

scope of the transaction rule should come to a welcome end. Specifically, as explained

above (see ¶¶ 93-102, supra), I suggest that we revise the Modified Just Rule to contain

the following five criteria:

1. advance notice, as required by statute (see § 46-13-109, MCA);

2. compliance with Rule 404(b): the evidence must be offered for a purpose

other than to show action in conformity with character;

3. compliance with Rule 402: the evidence must be relevant to a material issue in

light of the purpose for which it is offered;

4. compliance with Rule 403: the probative value of the evidence must not be

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; and

5. compliance with Rule 105: the court, upon request, must restrict the evidence

to its proper scope and instruct the jury that the evidence is to be considered

only for the proper purpose for which it was admitted (see also § 46-16-401(1),

MCA).

This approach does nothing more than require compliance with the applicable statutory

provisions and Rules of Evidence. Evidence of uncharged misconduct is often highly

probative, as in this case, but also inherently prejudicial. Yet, as the Supreme Court

noted, Rules 404(b), 402, 403, and 105 provide the necessary protection against the

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introduction of unduly prejudicial uncharged misconduct evidence. See Huddleston, 485

U.S. at 691-92, 108 S. Ct. at 1502.

¶124 In closing, I would reverse and remand for a new trial under Issue Two. I thus

would not address the other issues raised by Stout on appeal. I disagree with the Court’s

contrary decision.

¶125 I dissent.

/S/ JAMES C. NELSON

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