No. 8 6 - 3 9 3
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
BRADLEY KEITH CLAUSEN,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
E. June Lord, Great Falls, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Joe R. Roberts, Asst. Atty. General, Helena
Patrick L. Paul, Cascade County Attorney, Great Falls,
Montana.
Submitted on Briefs: May 14, 1 9 8 7
Decided: August 5, 1 9 8 7
Filed: AUG 5- 1987
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Bradley Keith Clausen appeals his conviction in Cascade
County District Court for possession of dangerous drugs with
intent to sell, a felony, and possession of dangerous drugs,
a felony. He was also designated a persistent felony
offender.
The issues on appeal are:
(1) Whether the District Court erred in allowing into
evidence Clausen's prior conviction for selling two grams of
cocaine.
(2) Whether Clausen had standing to challenge the
search of the storage shed in which the illegal drugs were
discovered.
We affirm.
Clausen and his wife separated in late May or early
June 1985. The wife thereafter filed a petition for
dissolution of marriage and obtained a court order in June
1985 directing the sheriff to take and return to the wife
certain items of marital property that Mr. Clausen was
concealing from his wife. The order included a provision for
taking property from any third party acting as Clausen's
agent. The sheriff was informed that some of the marital
property had been moved to a storage shed listed under the
name of Clausen's friend, Michael Brown. Brown freely
admitted renting the space after receiving rental funds from
Clausen. Brown also admitted taking the storage keys to
Clausen after executing the rental agreement. Brown denies
having helped Clausen move property to the shed or visiting
the shed subsequent to making the rental agreement. The
owner of the storage shed opened the shed for the sheriff and
Clausen's wife. Shortly after beginning the removal of
marital property as listed in the court order the wife
discovered a garbage bag filled with marijuana. Further
investigation revealed a total of 37.6 pounds of marijuana,
five grams of psilocybin, magic mushrooms, two scales used to
weigh the drugs and Zigzag cigarette papers. The storage
manager testified that after the sheriff and. the wife left
the premises, two unidentified men requested keys to the shed
but their request was denied. The manager reported that he
did not recognize the two men but that they seemed a little
upset. Defendant testified at trial that he sold some of the
property in the shed and gave or sold the storage keys to a
Mexican native on June 2, 1985, shortly before the drug
seizure took place. Despite the issuance of a subpoena, this
person was never located. Before trial, Clausen dismissed
his counsel and was appointed new counsel.
The jury convicted Clausen of criminal possession of
dangerous drugs with intent to sell, a felony, and criminal
possession of dangerous drugs, a felony. The District Court
noted in its findings that Clausen's employment record
indicated that his income over the last several years was not
from legitimate employment and that incarceration was
necessary to get Clausen out of drug trafficking. We note
that Clausen was convicted in federal court in 1982 for the
criminal sale of dangerous drugs, namely cocaine. The court
sentenced Clausen to two five-year sentences for the offenses
of which he was convicted and a third five-year sentence for
being a persistent felony offender. The court ordered the
sentences to run consecutively.
The first issue is whether the District Court erred in
allowing into evidence Clausen's prior conviction for selling
two grams of cocaine. Rule 404(b), M.R.Evid., states:
(b) Other crimes, wrongs, acts.
Evidence of other crimes, wrongs, or acts
is not admissible to prove the character
of a person in order to show that he
acted in conformity therewith. It may,
however, be admissible for other
purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of
mistake or accident.
In determining whether evidence of "other crimes or acts"
should be admitted, inquiry should be made into four areas as
enunciated in State v. Just (1979), 184 Mont. 262, 269, 602
P.2d 957, 961:
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 substantially outweighed by the
prejudice to the defendant.
In State v. T.W. (Mont. 1986), 715 P.2d 428, 430, 43
St.Rep. 368, 371, we said that " [flailure of questioned
evidence to meet only one element of the Just test is not
sufficient to refuse its admission ... " and that "the four
factors must be considered together." We note that the State
filed notice in this case that it would introduce Clausen's
prior conviction in federal court as evidence.
Applying the Just case to the facts before us, we see
that both cases involve the criminal offense of selling
dangerous drugs. In the federal case, Clausen was convicted
of selling two grams of cocaine, while here Clausen was
convicted of possessing 37.6 pounds of marijuana with intent
to sell a.nd possessing five grams of psilocybin. The fact
that the type of drugs and the quantities involved are
different is irrelevant. What is important is the
substantial similarity of Clausen's actions which goes to the
issue of his intent under Rule 404(b), M.R.Evid.
As to the nearness in time factor, we note that Clausen
was released on parole from federal prison in June 1984 and
allegedly committed the offenses herein on June 9, 1985.
Since the crimes were committed just over a year from when
Clausen was released from prison, we believe that sufficient
nearness in time has been proven.
The third factor in Just is the tendency to establish a
common scheme, plan, or system. A similarity does exist
between the federal conviction and the case here which goes
to the issue of intent under Rule 404(b): the sale of illegal
drugs. We therefore believe that the third factor of Just
has been met.
The final factor in Just is whether the probative value
of the evidence outweighs its prejudicial effect to the
defendant. Being that the federal offense and the one here
are quite similar, i.e., the sale of illegal or dangerous
drugs, we believe the probative value of the evidence is
sufficient in strength to overcome the prejudicial effect to
the defendant. Our reasoning is that the lower court
followed the procedure for protecting the defendant's
interests when evidence of "other crimes or acts" is to be
introduced. The requirements are, as discussed in Just, 602
P.2d at 963-964, (1) notice should be given before trial of
the State's intention to introduce evidence of other crimes;
(2) at the time of introduction, the trial judge should give
a special instruction to the jury advising them that the
evidence is being submitted for the limited purposes allowed
in Rule 404 (b); and (3) the same instruction should be
included in the full instructions given to the jury at the
close of the case.
Our review of the record reveals that the prosecutor
and District Judge followed the above requirements. We
conclude that since Clausen denied knowledge of the illegal
drugs at the storage shed, the prior conviction in federal
court was admissible in respect to the issue of intent under
Rule 404 (b), M.R.Evid.
The second issue is whether Clausen had standing to
challenge the search of the storage shed in which the illegal
drugs were discovered. Clausen argues that he had a
legitimate expectation of privacy in the shed while at the
same time he disclaims any interest in the shed's contents by
virtue of the fact that he allegedly sold the keys and the
shed's contents to a Mexican native. We fail to see an issue
of standing before us. The facts are that Clausen and his
wife were involved in a marital property dispute at the time
of Clausen's arrest. Clausen admitted taking marital assets
without his wife's consent or a court order and selling some
or most of those assets. The wife obtained a court order
directing the sheriff to find and return the marital assets
as listed in the order. In addition, there was clear
evidence that Clausen was renting storage space under his
friend's cover. The sheriff obtained valid entry to the shed
and in the course of retrieving the marital property, the
illegal drugs were discovered. The court correctly
characterized the process:
THE COURT: This search was conducted in
compliance with lawful Court Order. It
wasn't a search for any contraband or any
illegally possessed property. It was in
compliance with the Order of--a lawful
Order of the Court to secure marital
property.
We conclude that the search was proper.
Affirmed.
PP
Justice/'
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We concur:
hief Justice