NO. 88-480
I N THE SUPREME COURT O F THE S T A T E O F MONTANA
1989
STATE O F MONTANA,
p l a i n t i f f and R e s p o n d e n t ,
-vs-
BLAKE ALFRED RANDALL,
D e f e n d a n t and A p p e l l a n t .
A P P E A L FROM: D i s t r i c t C o u r t of t h e F o u r t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of M i n e r a l ,
T h e H o n o r a b l e J a c k L . G r e e n , Judge p r e s i d i n g .
COUNSEL O F RECORD:
For A p p e l l a n t :
J. D i r k B e c c a r i , public D e f e n d e r , is sou la, M o n t a n a
For R e s p o n d e n t :
H o n . M a r c ~ a c i c o t ,A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
R o b e r t F.W. S m i t h , A s s t . A t t y . G e n e r a l , H e l e n a
M. Shaun D o n o v a n , C o u n t y A t t o r n e y , s u p e r i o r , M o n t a n a
S u b m i t t e d on B r i e f s : March 16, 1989
~ e c i d e d : May 4, 1989
Mr. Justice William E. Hunt, Sr. delivered the opinion of the
Court.
A jury empaneled in the District Court of the Fourth
Judicial District, Mineral County, found Blake A. Randall,
the defendant, guilty under § 45-5-401 and § 45-2-302, MCA,
for the offense of accountability for robbery. ind ding no
legal cause why judgment should not be pronounced against the
defendant, the District Court sentenced him to the Montana
State Prison for a term of 15 years with three suspended.
Defendant appeals. We affirm.
The issue raised on appeal is whether the District Court
erred in admitting evidence of other acts by the defendant.
On September 17, 1987, the defendant, Blake Randall, and
his three companions, Robert ~ a v i s , ~ n t o n i o Alvernaz, and
Megan Carder, were traveling in defendant's vehicle from the
vicinity of Seattle, Washington, en route to Missoula,
Montana. At approximately 3 : 0 0 p.m. on that date they
arrived in Alberton, Montana, pulled into the River's Edge
Motel, and the driver of the vehicle proceeded to pump
approximately $25 worth of gasoline into the vehicle. The
driver was joined by a second man who accompanied him into
the motel-gas station office. These two men were later
identified as Davis and Alvernaz.
One of the men had a gun and forced Steven Stahl, the.
motel owner, to lie on the office floor. The two men took
approximately $200 from the cash register and Stahl's wallet,
several quarts of motor oil, and a portable radio-cassette
tape player.
Davis and Alvernaz returned to the vehicle. Defendant
then drove the vehicle through Alberton to the Nine Mile
House, a local bar, restaurant, and grocery, where Alvernaz
purchased approximately $35 worth of beer and cigarettes.
After Alvernaz returned to the vehicle with the items,
defendant continued to drive east toward Missoula.
Approximately 10 miles outside of Missoula, the four were
apprehended by the Missoula County Sheriff's Department for
the robbery of the River's Edge Motel. A subsequent search
of the vehicle revealed a gun, Stahl's credit cards and
driver's license, oil bottles and a radio-cassette player.
On October 7, 1987, an information was filed charging
defendant with the offense of accountability for robbery in
violation of § 45-5-401 and S 45-2-302, MCA. On February 10,
1988, the State filed notice of intent to introduce evidence
of other acts. Specifically, the State sought to introduce
evidence of the robberies of Popular Food and Gas in
Snohomish, washington, on September 14, 1987, and of Y-E-Z
Market in penshastin, ~ashington,on September 15, 1987. On
February 22, 1988, the District Court held a hearing on the
other acts evidence in which it ruled that evidence of the
September 14, 1987, ~nohomishrobbery was excluded because it
did not qualify under State v. Just (1979), 184 Mont. 262,
602 P.2d 957, and that the evidence concerning the September
15, 1987, ~enshastinrobbery was admissible because defendant
admitted involvement in the offense.
A jury trial held in February, 1988, ended in a
mistrial. A second trial was held on March 22, 1988, and the
jury returned a verdict of guilty to the offense of
accountability to robbery on March 23, 1988. The defendant
was sentenced to the Montana State prison for 15 years with
three suspended. Defendant appeals.
The issue raised on appeal is whether the District Court
erred in admitting evidence of other acts by the defendant.
The State sought to introduce defendant's other acts in
order to support its proof on the issue of defendant's
intent, state of mind, and to prove that defendant's acts
were consistent with a common scheme, plan or system.
Defendant contends that admission of a prior act, the
September 15, 1987, Penshastin robbery, was in violation of
the protections afforded to him by Rule 404(b), M.R.~vid.,
and that the prior act failed to meet the requirements for
admission set forth in Just, 602 P.2d at 961.
Rule 404 (b), M. R.~vid. provides:
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.
The rule must be strictly enforced, except where clearly
justified, and exceptions to the rule must be carefully
limited. Just, 602 P.2d at 962, citing State v. ~iedemann
(1961), 139 Mont. 237, 242-43, 362 P.2d 529, 531.
Circumstances constituting admission of prior acts lies in
the discretion of the trial judge, providing that "the
probative value outweighs the prejudicial." State v. Matson
(Mont. 1987), 736 P.2d 971, 976, 44 St.Rep. 874, 880.
Evidence is strictly inadmissible for the purpose of showing
the commission of that particular offense. Just, 602 P.2d at
960, citing State v. Taylor (1973), 163 Mont. 106, 120, 515
P.2d 695, 704.
Just, 602 P.2d at 961, provided a four element test
which determined the admissibility of other acts when a
common scheme, plan or system was demonstrated. The test,
based on State v. Jensen (1969), 153 Mont. 233, 455 P.2d 631,
and Rule 403, M.R.Evid., is set forth as follows:
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.
~pplying these elements to the facts of the case at bar, we
hold that the evidence of defendant's actions in the
Penshastin robbery were properly admitted.
Defendant argues that because insufficient similarities
existed between the Alberton robbery and the Penshastin
robbery, the acts are inadmissible evidence. We disagree.
Both incidents occurred within three days of one another; the
identical participants were involved; defendant's vehicle was
utilized; and both incidents involved robbing store clerks at
gunpoint. The incidents need not be identical in order to
introduce the prior incident as a similar act as long as
there is "sufficient similarity" to sustain the admission of
the prior act. State v. Tecca (1986), 220 Mont. 168, 172,
714 P.2d 136, 138. As noted in State v. Hansen (1980), 187
Mont. 91, 95, 608 P.2d 1083, 1085, when "applying the
exception each case must rest upon its own circumstances."
Here, the circumstances were sufficiently similar to warrant
admission of the other act.
Defendant further argued that since he was not charged
with the Penshastin robbery, the District Court abused its
discretion when it admitted evidence of the incident.
However, on September 23, 1987, defendant was interviewed by
the Mineral County Sheriff's Department concerning the
Alberton robbery and he admitted helping ~ a v i sand Alvernaz
commit the robbery in Penshastin, washington, by driving the
getaway car. Throughout the interview he described the
similarities in the robberies as well.
In Just, 602 P.2d at 963, we held that the burden of
proof as to the other acts need not rise to the level
required in a criminal prosecution for similar acts. It must
be noted that the State contends that by the time of the
second trial, authorities in Chelan County (Penshastin),
Washington, had filed charges against defendant for aiding
and abetting robbery in the first degree. The evidence of
defendant's participation in the Penshastin robbery is
similar and is admissible whether or not defendant was
actually charged with the offense.
While we continue to decline to establish an arbitrary
time limit for admitting prior acts evidence as provided in
Tecca, 714 P.2d at 139, the element of nearness in time in
this case was satisfied since the robbery of the Penshastin
convenience store occurred three days prior to the Alberton
robbery. In State v. Hall (Mont. 1988), 761 P.2d 1283, 45
St.Rep. 1726, we held that six months was sufficient to
satisfy the element and in State v. ~ e i n e (1976), 169 Mont.
25, 544 P.2d 1212, we held that three years was sufficient.
Third, in order for the similar act to be admissible, a
common scheme, plan or system had to be established. In
Just, 602 P.2d at 961, we provided that prior acts are those
that have a similarity of inherent probability and a plan to
carry out a scheme evidenced by defendant's course of
conduct.
In this case, defendant and his companions began a
three-state trip with little or no money. They robbed a
convenience store in Penshastin, Washington, to fund the
excursion and, when the cash ran out, robbed the River's Edge
Motel in Alberton, Montana. In both instances, a black male
threatened a store clerk with a gun and a white male,
accompanied him. In both instances, defendant admittedly
drove the getaway car. Each participant, had a specific duty
to perform during both robberies. • his establishes a modus
operandi. The evidence of the former robbery was properly
admitted because it was consistent with the proposition of a
common scheme or plan by defendant and his companions to fund
their travels by committing robberies.
Last, the probative value of the Penshastin robbery must
not be outweighed by prejudice to defendant. This is the
most difficult of the Just elements to apply. Evidence of
other acts invariably will result in prejudice to the
defendant to a certain degree and, thus, the probative value
must substantially outweigh the prejudice. Just, 602 P.2d at
961. But, "the probative value of the evidence is determined
from the remaining Just, factors." State v. Keefe (Mont.
1988), 759 P.2d 128, 135, 45 St.Rep. 1034, 1042.
In the instant case, there was little direct evidence to
contradict defendant's story that he was an unwilling and
unknowing participant who was awakened after the robbery and
told to drive the vehicle. Other acts evidence was crucial
as it tended to show that defendant actively and knowingly
participated in the Alberton robbery. The State effectively
established the first three elements, therefore, establishing
the probative value element.
The four Just elements must be considered as a whole,
State v. T.W. (1986), 220 Mont. 280, 284, 715 P.2d 428, 430,
and failure of any one factor will not necessarily negate
admission of the evidence. Hall, 761 P.2d at 1285. See
also, State v. Clausen (Mont. 1987), 740 P.2d 679, 44 St.Rep.
1308.
The rationale behind Rule 404(b), M.R.Evid., is that
proof of other offenses would subject defendant to surprise
and to a defense of collateral or unrelated matters. Just,
601 P.2d at 960, citing Jensen, 455 P.2d at 633-34. Hence,
if the State is going to introduce evidence of other acts
under Just, defendant is afforded three procedural
protections. In State v. Doll (1985), 214 Mont. 390, 395,
692 P.2d 473, 475-76, three procedural guidelines were set
forth:
(1) notice to the defendant prior to trial that
evidence of other crimes, wrongs or acts will be
introduced; (2) an admonition by the judge to the
jury when the evidence is introduced that it is
admitted solely for one or more of the accepted
purposes stated in Rule 404(b); and ( 3 ) a
cautionary jury instruction to the same effect,
providing in unequivocal terms that the evidence is
admitted for the purpose earlier stated and not to
try and convict the defendant for prior wrongful
conduct.
Citing Just, 602 P.2d at 963-64. -- - 761 P.2d at
See also, Hall,
1284-85.
In this case, the State, on February 10, 1988, properly
filed notice of intent to introduce evidence of the
Penshastin robbery in accordance with guideline number one.
The District Court properly admonished the jury in accordance
with guideline number two by stating:
NOW, ladies and gentlemen, the State has just
offered evidence that the defendant at another time
engaged in other crimes, wrongs, or acts. That
evidence was not admitted to prove the character of
the defendant in order to show he acted in
conformity therewith. The only purpose of
admitting that evidence was to show plan,
knowledge, or absence of mistake or accident. You
may not use that evidence for any other purpose.
A similar jury instruction satisfied the third guideline.
In applying its discretion, the ~istrict Court is
obligated to carefully balance the relative probative value
of the Penshastin robbery against the prejudice inherent in
the evidence and the actual need to introduce the evidence.
Just, 602 P.2d at 960-61. citing State v. skinner (19731,
163 Mont. 58, 64, 515 P.2d 81, 84; State v. Frates (1972),
160 Mont. 431, 437, 503 P.2d 47, 50. We hold that the
District Court properly used its discretion.
We hold that no abuse of discretion by the District
Court has occurred. The penshastin robbery was properly
admitted as an exception under Rule 4 0 4 (b), M . R . E v ~ ~, since
.
the Just elements were established. Defendant was properly
afforded the three procedural safeguards as required.
Affirmed.
We Concur: