NO. 81-435
IN THE SUPREME COURT OF THE STATE OF MONTANA
1982
STATE OF MONTANA,
Plaintiff and Respondent,
VS.
JAMES E. GRAY,
Defendant and Appellant.
Appeal from: District Court of the Fourth Judicial District,
In and for the County of Ravalli
Honorable James B. Wheelis, Judge presiding.
Counsel of Record:
For Appellant:
John E. Riddiough, Missoula, Montana
Timothy D. Geiszler, Missoula, Montana
For Respondent:
Honorable Mike Greely, Attorney General, Helena, Montana
Robert B. Brown, County Attorney, Hamilton, Montana
Submitted on briefs: February 4, 1982
Decided: April 5, 1982
Filed: APf? - 5 1982
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.
Defendant James E. Gray (Gray) was found guilty of
criminal mischief with the purpose to defraud an insurer by
a jury in the Fourth Judicial District of Montana, Ravalli
County. Gray appeals his conviction. We remand for a new
trial.
Gray raised several issues on appeal. The following
issue is determinative:
Whether it was an error for the District Court to admit
evidence of the second incident of criminal mischief.
On August 28, 1980, Gray reported that while driving
his 1980 Chevrolet pickup truck east on the Skalkaho Road,
he was involved in an accident. In his report to the High-
way Patrol, he indicated that he was crowded off the road by
a westbound vehicle pulling a horse trailer. He reported
that his vehicle went down the embankment and that he stayed
in the vehicle and then climbed back up to the road.
Steven Forsman and Lela Gray, daughter of the defendant,
followed him along the Skalkaho Road in a separate vehicle.
During the trial, Forsman testified that he was aware of
Gray's plan to damage the vehicle, that Gray turned the
the edge of the road and then jumped out at
vehicle to~z.ri!
the top of the embankment and that then Forsman and Gray
walked down the embankment to observe the damage. When they
returned to the road, they encountered two loggers who
contacted the police. Forsman testified that while he was
driving Gray back to Hamilton, Gray told him to tell the
police that a brown flatbed pulling a horse trailer was
coming down the road and forced him off the road. Forsman
testified that the horse trailer story was fictitious and
that there had been no vehicle which had forced the truck
driven by Gray off the road.
Following the accident, Gray placed a claim with his
insurance company for insurance benefits resulting from the
accident.
After its examination of the truck following its going
over the embankment, the insurance company concluded that
the truck properly could be repaired. The truck then was
taken to a Hamilton auto shop for repair. On September 2,
while the truck was at the auto shop, Terry Atkins beat on
the truck with a crowbar and slashed the seats and caused
other damage, as a result of which the truck was nonrepair-
able or "totaled." Initially, Terry Atkins in a written
statement taken by the Ravalli County Sheriff's Department,
indicated that he had vandalized at the instruction of Gray
on September 2, 1980, five days after the original damage.
That evidence was presented to the jury. During the trial,
Atkins testified that he decided to vandalize the truck on
his own in order to get even with the repair shop which had
done unsatisfactory work for him.
The information shows that Gray was charged with criminal
mischief in the following wording:
"On or about the 28th day of August ,
1980. in Ravalli County, Montana, the
~ e z i d a n t , James E. ~ k apurposely or
~
knowingly damaged or destroyed property,
to-wit: 1980 Chevrolet pickup truck, with
the purpose to defraud an insurer, by driving
the vehicle over an embankment, causing
damage in excess of $150.00,. . ."
Gray argues that it was improper to allow evidence
concerning the vandalism of the truck because the State did
not give notice requirements as required in State v. Just
(1979), Mont . , 602 P.2d 957, 36 St.Rep. 1649. The
Information and Affidavit for Leave to File Information made
no reference to any act of criminal mischief other than the
incident on August 28, 1980. Gray argues that the vandalism
of the truck on September 2, 1980, is "other crimes" evidence
because it was an act separate and apart from the alleged act
of criminal mischief charged in the information, that the
State failed to give him notice, and that the court failed
to admonish and instruct the jury as required by Just.
The State contends that it is not other crimes evidence,
but part of the continuing transaction of criminal mischief
so meeting the requirements in Just is not necessary.
In State v. Trornbley (1980), Mont. , 620 P.2d
367, 37 St.Rep. 1871, the defendant stole a truck. In
proving that he stole the truck, the State brought forth
evidence that he tried to use credit cards of the truck owner
that were in the truck at the time of the theft. This Court
in allowing evidence of the credit cards without the procedures
in Just being followed stated: "In our opinion affirming
the District Court's admission of this evidence, we recognized
the distinction between 'other crimes' evidence and evidence
of defendant's simultaneous misconduct inseparably related
to the alleged criminal act." Trornbley, 620 P.2d at 368,
37 St.Rep. at 1872.
Gray attempted to damage or destroy the truck for the
purpose of defrauding the insurer when he drove the truck
off of the road on August 28, 1980. After the truck was
returned to town and it was determined that Gray had been
unsuccessful in "totaling" the truck, a second incident of
criminal mischief occurred on September 2, 1980, five days
later. Because of the gap in time, the September 2 conduct
is not "simultaneous misconduct inseparably related to the
alleged criminal act" of August 28, as required by Trombley
to exempt it from the requirements of Just. We therefore
conclude that the evidence of September 2 conduct is "other
crimes" evidence.
We must then determine whether the September 2 evidence
was properly admitted in that context.
Just established a four element test to determine the
admissibility of evidence of other crimes or acts in criminal
prosecutions. The four elements are:
(1) similarity of crimes or acts;
(2) nearness in time;
(3) tendency to establish a common scheme, plan or
system; and
(4) the probative value of the evidence is not substan-
tially outweighed by the prejudice to the defendant. Just,
602 P.2d at 961, 36 St.Rep. at 1653.
Both acts of criminal mischief were directed against
the same motor vehicle. The two incidents occurred within
five days of each other; the purpose of both incidents was
to damage or destroy the truck for the purpose of defrauding
an insurer; and any prejudice to the defendant is not outweighed
by the probative value of the evidence. The evidence of
the vandalism incident is the type of "other crimes" evidence
which is admissible.
Having concluded that the evidence can properly be
admitted as "other crimes" evidence, we must determine if
the procedural requirements of Just have been followed.
"Failure to adhere to the procedural mandates of Just con-
stitutes error." State v. Case (1980), Mont . , 621 .
P.2d 1066, 1071, 37 St.Rep. 2057, 2063.
First the State must provide written notice to the
defendant, before the case is called to trial, that the
evidence is to be produced. Notice must include a statement
of the purpose for which the evidence is to be presented.
Case, 620 P.2d at 1071, 37 St.Rep. at 2063; Just, 602 P.2d
at 963-964, 36 St.Rep. at 1657-1658. Here, the defendant
received no notice.
Next the trial court must, at the time the evidence is
introduced, explain to the jury the purpose of the evidence
and admonish the jury to weigh the evidence only for those
purposes. Case, 621 P.2d at 1071, 37 St-Rep. at 2063; Just,
602 P.2d at 964, 36 St.Rep. at 1658. The District Court did
not so instruct the jury.
The final step requires that in its final charge that
the court should instruct the jury in unequivocal terms
"that such evidence was received only for the limited pur-
poses 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." Just, 602 P.2d at 964,
36 St.Rep. at 1658. The District Court did not so instruct
the jury in the final charge.
Failure to provide necessary procedural safeguards
prejudiced the defendant. "This failure, of itself dictates
reversal." Case, 621 at 1072, 37 St.Rep. at 2063. Because
the procedural safeguards set forth in Just were not followed
and this Court cannot determine the extent to which the
defendant was prejudiced, the defendant must be given a new
trial.
The judgment of the District Court is reversed and the
case is remanded for a new trial.
We Concur: