NO. 94-409
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
AMG 0 4 1995
v.
RALPH OWEN WELDY,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Alfred Avignone, Ungar, Avignone & Banick,
Bozeman, Montana
Daniel P. Buckley, Berg, Lilly, Andriolo
& Tollefsen, Bozeman, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Barbara C. Harris, Assistant Attorney
General, Helena, Montana
Mike Salvagni, Gallatin County Attorney,
Gary Balaz, Deputy County Attorney,
Bozeman, Montana
Submitted on Briefs: April 6, 1995
Decided: August 4, 1995
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Ralph Owen Weldy appeals from the sentence and final
judgment entered in the Eighteenth Judicial District court,
Gallatin County, finding him guilty of felony assault and
misdemeanor domestic abuse, and sentencing him to consecutive terms
of ten years for felony assault, two years for use of a weapon, and
six months for domestic abuse, all to run concurrently. The
District Court designated appellant a dangerous offender for the
purpose of parole eligibility.
We reverse and remand.
Appellant raises six issues on appeal. However, we limit our
decision to the following:
1. Did the District Court err in allowing testimony of prior
assaults by appellant against Cynthia Weldy?
2. Did the District Court properly instruct the jury as to
the unanimity of its verdict?
Appellant and Cynthia Weldy were married on May 1, 1993, and
divorced on December 1, 1993. On July 9, 1993, appellant visited
Cynthia at the Lucky Cuss, her place of employment, where he
observed Cynthia speaking with three men whom he believed were
arranging to meet Cynthia after work. When Cynthia arrived home
after work she discovered that appellant was agitated and had been
drinking alcohol.
Appellant began striking Cynthia on the chin, the face, and
her arms. While Cynthia was seated in a kitchen chair with her
2
back to a wall, appellant began plunging a 12-inch serrated knife
into the wall beside her head.
Throughout the night and into the next morning, appellant
continued assaulting Cynthia. At one point, he broke a drinking
glass and threatened Cynthia with the jagged glass bottom. At
another point in the early morning, appellant struck Cynthia on the
head, shoulder, ribs, and hand with a piece of firewood.
After appellant went to bed at 7 a.m., Cynthia left home and
reported to her second job at the Friendly Cafe. At 8:45 a.m.,
appellant walked into the Friendly Cafe and struck Cynthia in the
back and side of her head while she was carrying a pot of coffee.
Appellant left and later returned to the Friendly Cafe where he
pulled Cynthia out the rear door of the cafe and renewed his
assault.
On January 25, 1994, the Gallatin County Attorney charged
appellant by amended information with one count of felony assault
under 5 45-5-202(2) (a) or (b), MCA, and one count of misdemeanor
domestic abuse under 5 45-5-206(l) (a), MCA. Appellant was tried by
a jury and convicted of felony assault and domestic abuse. The
District Court sentenced appellant to consecutive terms of ten
years for felony assault and two years for the use of a weapon. In
addition, the District Court sentenced appellant to a concurrent
term of six months for domestic abuse, and designated appellant a
dangerous offender for the purpose of parole eligibility. The
District Court denied appellant's motion for a new trial.
Appellant appeals the judgment and sentence of the District Court.
3
ISSUE 1
Did the District Court err in allowing testimony of prior
assaults by appellant against Cynthia Weldy?
We review evidentiary rulings by a district court to determine
whether the district court abused its discretion. State v. Parma
(1993) I 261 Mont. 338, 341, 863 P.2d 378, 380; State v. Crist
(19921, 253 Mont. 442, 445, 883 P.2d 1052, 1054. The district
court has broad discretion to determine whether evidence is
relevant and admissible, and absent a showing of abuse of
discretion, the district court's determination will not be
overturned. Parma, 863 P.2d at 380; -
CristI 833 P.2d at 1054.
The charges brought against appellant involve events which
occurred on July 9 and 10, 1993. At trial, the State introduced,
and the District Court admitted, testimony of prior assaults
committed by appellant against Cynthia between May 3 and July 9,
1993. Appellant argues that testimony of prior assaults was
introduced to show his character and his propensity to act in
conformity therewith in an effort to prejudice the jury. Appellant
contends that the prior acts should have been excluded pursuant to
Rules 404(b) and 403, M.R.Evid, and State v. Matt (1994), 249 Mont.
136, 814 P.2d 52.
The admissibility of prior acts evidence is controlled by
Rule 404(b), M.R.Evid., which provides that: II Eelvidence of other
crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith." The
general rule of Rule 404(b) must be strictly enforced, except where
4
a departure is clearly justified, and exceptions to the rule must
be carefully limited. State v. Keys (1993), 258 Mont. 311, 315,
852 P.2d 621, 623; Crist, 833 P.2d at 1054.
In -
MattI we modified the rule established in State v. Just
(1979), 184 Mont. 262, 602 P.2d 957, and set forth a four-part test
to insure that prior acts evidence is not introduced as character
evidence. The modified just rule requires that:
(1) The other crimes, wrongs or acts must be
similar.
(2) The other crimes, wrongs or acts must not be
remote in time.
(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.
(4) Although relevant, 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.
MattI 814 P.2d at 56.
- The following procedural protections apply
as part of the modified Just rule:
(1) Evidence of other crimes, wrongs, or acts may
not be received unless there has been written notice to
the defendant that such evidence is to be introduced.
The notice to the defendant shall specify the other
crimes, wrongs, or acts to be admitted, and the specific
Rule 404(b) purpose or purposes for which it is to be
admitted.
(2) At the time of the introduction of such
evidence, the trial court shall explain to the jury the
purpose of the evidence and shall admonish it to consider
the evidence for only such purposes.
5
(3) In its final charge, the court shall 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 . . .
MattI
- 814 P.2d at 56.
On March 1, 1994, the State provided appellant with Just
notice stating that it would offer evidence that appellant
assaulted Cynthia on May 3, 1993, and that appellant told Cynthia
that "I killed my first wife, what do you think of that." The
State asserted that it planned to offer appellant's physical
conduct and his statement as proof of motive and intent. The
District Court prevented either party from offering appellant's
statement about killing his first wife, but allowed Cynthia to
testify about prior assaults committed against her by appellant.
We must determine whether the alleged prior assaults were
admissible under the modified just requirements to prove that on
May 9 and 10, 1993, appellant committed felony assault against
Cynthia by knowingly or purposely causing bodily injury to Cynthia
with a weapon, or by knowingly or purposely causing Cynthia to
reasonably apprehend serious bodily injury by use of a weapon.
Section 45-5-202(a) or (b), MCA.
Appellant does not dispute that the alleged prior bad acts
were sufficiently near in time to the charged act to satisfy the
second modified Just criteria. However, upon review of the record,
we conclude that this is the only requirement of the modified Just
rule which is satisfied.
6
The State argues that the firs t m~odified Just requirement is
fulfilled because the acts committed by appellant between May 1993
and July 1993, and the charged acts, were similar. We have
consistently held that the prior acts dc not have to be identical
to the charged conduct, only sufficiently similar. State v. Tecca
(1986), 220 Mont. 168, 172, 714 2.2d 136, 138. See also State v.
Brooks (1993), 260 Mont. ~79, 857 l.%d 734; State v. McKnight
(1991), 250 Mont. 457, 820 B.%d 1279; State v. Sadowski (19911, 247
Mont. 63, 805 P.2d 537; State v. Gambrel (IPPOj, 246 Mont. 84, 803
P.2d 1071; State v. Eiler (1988!, 234 Mont. 38, 762 P.2d 210; State
v. Long (1986!, 223 Mont. 502, 726 P.2d 1364. There is no rigid
rule for determining when conduct is sufficiently similar, rather,
the determination of sini:.arity do-per. ds on whether that conduct has
some relevance to prove an Fssu+ in ?.?..snu;:e. &s; 852 P.2d at
623.
The issue in dispute here is whether appellant used a weapon
to cause bodily injury or reasonable apprehension of serious bodily
injury in Cynthia. Cynthia testified that commencing with the
honeymoon, her husband's attacks were progressively more .violent
and that appellant threatened to kill her on at least two
occasions. Given that appe!.lant~ denied using a weapon in the
assault on his wife, the evidence that he had previously, regularly
beat her in a progressively more vi.olent manner tended to prove
that his last assault had gone beyor:d merely slapping her "a few
times” as he conceded, but had escalated, as the State maintained,
to his use of a weapon to injure her or to produce reasonable
apprehension of serious bodily injury.
Accordingly, under our prior case law, while the prior
assaults in this case were not identical to the charged assaults,
they were sufficiently similar for Rule 404(b) purposes in that
they were relevant to prove the issue in dispute.
The State next argues that the third modified Just requirement
is satisfied because evidence of the other acts of assault against
Cynthia is relevant to show appellant's intent and motive in
committing the charged offense. While motive and intent are
allowable purposes for admitting prior acts evidence, "merely
reciting an allowable purpose is not sufficient if the evidence
does not further that purpose or that purpose is not an issue in
dispute." Keys, 852 P.2d at 625.
In its reply to appellant's motion in limine to exclude
evidence of prior acts, the State argued that "the prior beatings
are explanatory of [appellant's] mental state at the time he
committed the crimes charged. . . The prior beatings are
explanatory of what [appellant] thought when he committed the
crimes charged, and they are explanatory of what [appellant] wanted
Cynthia to think . . when she was being beaten . on July 9
and July 10, 1993." The State's argument is conclusory, and it
fails to demonstrate how the appellant's prior acts show his motive
for or intent to commit felony assault. We stated in Sadowski,
that to be admissible as relevant to show motive or intent, the
commission of the first crime or act should give rise to a motive
8
or reason for the defendant to commit the second crime. Sadowski,
805 P.2d at 537. Keeping in mind that appellant admitted
assaulting Cynthia, but denied use of a weapon (that being the only
issue), there was simply nothing in the history of the prior
assaults (none of which involved the use of a weapon) that would
give rise to a motive or reason for appellant to use a weapon
during the charged assault. If anything, the contrary is true.
The purposes for which the State contends the prior acts are being
offered are not relevant to the issue of whether appellant
assaulted Cynthia with a weapon, or whether he caused her to
reasonably apprehend bodily injury from the use of a weapon.
Again, the only purpose for this evidence is to imply that
appellant acted in conformity with his prior bad acts. Rule
404(b), M.R.Evid., specifically prohibits such evidence.
Accordingly, since part 3 of the four-part Just/Matt test is
not satisfied, the other crimes evidence should not have been
admitted.
We hold that the District Court abused its discretion in
allowing testimony of prior assaults by appellant against Cynthia.
ISSUE 2
Did the District Court properly instruct the jury as to the
unanimity of its verdict?
It is within the district court's discretion to decide how to
instruct the jury, taking into account the theories of the
contending parties, and we will not overturn the district court
except for abuse of discretion. Contreras v. Vannoy Heating & Air
9
Conditioning (Mont. 19951, 892 P.2d 557, 558, 52 St. Rep. 246, 248.
A jury must reach a unanimous verdict in a criminal trial.
Mont. Const. art. II, § 26. The State argues that this Court has
consistently held that once the jury has been instructed that it
must reach a unanimous verdict, the district court is not required
to repeat this instruction for every alternative charge, provided
that substantial evidence supports all of the alternatives. State
v. Warnick (1982), 202 Mont. 120, 129, 656 P.2d 190, 194-95. See
also State v. Cannon (1984), 121 Mont. 157, 687 P.2d 705; McKenzie
v. Osborne (1981), 195 Mont. 26, 640 P.2d 368; Fitzpatrick v. State
(1981), 194 Mont. 310, 638 P.2d 1002, cert. denied (1981), 449 U.S.
891. The cases cited by the State address alternative states of
mind and alternative charges, and therefore, are distinguishable.
By contrast, the present case addresses charging a defendant with
multiple acts of felony assault under one count, the need for the
court to properly instruct the jury as to unanimity given the
charging document, and the requirement that the jury render a
unanimous verdict under at least one separate act of felony
assault.
Appellant was charged with and found guilty of one count of
felony assault under § 45-5-202, MCA, which includes two different
statements of the same offense. Subsection (a) requires that the
State prove bodily injury to the victim by use of a weapon.
Subsection (b) requires that the State prove reasonable
apprehension of serious bodily injury to the victim by use of a
weapon. The District Court instructed the jury that " [tlhe law
10
requires the jury verdict in this case to be unanimous. Thus, all
twelve of you must agree in order to reach a verdict whether the
verdict be guilty or not guilty." The jury was instructed further
that O[iln your deliberations you shall first consider the charge
of Felony Assault . . . [all1 twelve of you must find the defendant
either guilty or not guilty of that charge."
Appellant argues that although the District Court instructed
the jury to return a unanimous verdict, it failed to specifically
instruct the jury to return a unanimous verdict regarding one or
more specific acts. In addition, appellant asserts that the
District Court erred by failing to use a proposed verdict form that
would have required the jury to find appellant guilty or innocent
under one, but not both, sections of the felony assault statute.
By contrast, the verdict form supplied by the District Court
provides:
We the jury, duly empaneled and sworn to try the issues
in the above case, unanimously find as follows:
Count I
Of the charge of Felony Assault, we find the defendant
Guilty
Although the jury was instructed as to the requirement of a
unanimous verdict, it is not clear from either the instructions or
the jury verdict form under which section of the felony assault
statute that the jury reached its verdict. The jury may have
signed the verdict form concluding that appellant was guilty of
felony assault without reaching a unanimous verdict as to either or
11
both of the statements of felony assault set forth in subsections
(a) or (b) . It is impossible to determine from the jury verdict
form whether all 12 members of the jury, or fewer than 12, found
appellant guilty of felony assault under subsection (a),
subsection (b), or both.
We conclude that appellant's constitutional right to a
unanimous verdict was not protected by either the jury instructions
or the jury verdict form. Both the instructions and the verdict
form should have been structured so that it was clear to the jury
that it was required to reach a unanimous verdict under
subsection (a), subsection (b), or both.
We hold that the District Court erred by not properly
instructing the jury as to the unanimity of its verdict.
We reverse and remand for further proceedings consistent with
this opinion.
Justice
We concur:
Chief Justice
12
Justice James C. Nelson dissents and specially concurs
I dissent from our opinion on Issue 1 (other crimes evidence)
and specially concur with our decision on Issue 2 (unanimity of the
jury verdict).
Issue 1
Appellant's abuse of his wife began, literally, on their
honeymoon, two days after they were married, when Appellant
punched, slapped and yelled at Cynthia after she expressed a desire
to attend her stepfather's funeral. Similar beatings occurred
throughout the honeymoon trip and after the couple returned to
Belgrade to live. The beatings were usually precipitated by a
claim that Cynthia had talked to someone she should not have.
Cynthia testified that her husband's attacks were progressively
more violent and that Appellant threatened to kill her on at least
two occasions. This abuse culminated with the incidents for which
Appellant was charged and which are described in our opinion. The
Appellant conceded that he slapped Cynthia "a few times." To the
contrary, however, the physician who examined Cynthia in the
emergency roomtestifiedthat he found numerous bruises, tenderness
and swelling on various parts of her body, including her face,
stomach, shoulders, arm and ribs -- some of those injuries
consistent with her being hit with a piece of firewood.
We conclude that the evidence of Appellant's pre-July 9th
assaults on Cynthia was improperly admitted because, even though
sufficiently similar for Rule 404(b) purposes to prove the issue in
13
dispute, such conduct was, nevertheless, not relevant to prove
Appellant's intent and motive in committing the charged offense
which involved an assault with a weapon or reasonable apprehension
of bodily injury from the use of a weapon. I disagree with our
conclusion in this latter respect. Rather, I conclude that such
evidence was relevant to prove Appellant's motive and intent; that
such evidence was, therefore, properly admitted; and that part
three of the four part Just/Matt test was, thus, satisfied.
As our opinion correctly observes, we stated in Sadowski, that
to be admissible as relevant to show motive or intent, the
commission of the first crime or act should give rise to a motive
or reason for the defendant to commit the second crime. Sadowski,
805 P.2d at 542. Again, keeping in mind that the Appellant
admitted assaulting Cynthia but denied use of a weapon, (that being
the only issue); and keeping in mind the progressively more violent
nature of Appellant's assaults on his wife between the time they
were married and the time of the offense, the uncharged conduct was
relevant to establish Appellant's intent to actually cause bodily
injury or cause reasonable apprehension of serious bodily injury to
Cynthia. Given the progressively more violent history of their re-
lationship, the jury could have inferred on the basis of the other
crimes evidence that Appellant's increasing level of violence,
albeit without the use of a weapon, had not produced, at least in
his mind, the result desired -- i.e., Cynthia was still talking to
people she should not be talking to. Accordingly, threatening
14
Cynthia with a weapon or actually injuring her with a weapon was
the next logical step necessary for Appellant to obtain control
over his wife. In short, if slapping her around, punching her and
threatening to kill her did not make a believer out of her, perhaps
stabbing a 12-inch long serrated knife into a wall next to her
face, threatening her with a jagged glass bottom and hitting her
with a piece of firewood would.
I conclude that, under the facts of this case, the other
crimes evidence was relevant, and thus admissible, as it tended to
establish the motive and reason for Appellant's use of a weapon in
the charged assault. Accordingly, I dissent from our opinion on
Issue 1.
Issue 2
1n my view the problem with the jury instructions and the
verdict form followed as the natural consequence of the manner in
which the Appellant was charged in the amended information. The
offense of felony assault was charged in the amended information as
follows:
count 1: Felony Assault, in violation of Section
45-5-202(2) (a) and (b), MCA, committed on or about the
night of July 9 to July 10, 1993, when the defendant
purposely or knowingly caused bodily injury to Cynthia
Weldy with a weapon when he hit her with a piece of
firewood, causing pain, and when the defendant purposely
or knowingly caused Cynthia Weldy to have reasonable
apprehension of serious bodily injury by use of a weapon
when he brandished a knife so that she would see it, hit
her with a piece of firewood, and broke a glass and held
part of the broken glass near her so that she would see
it.
Section 46-11-404(l), MCA (1991), provides:
Two or more offenses or different statements of the
15
same offense maybe charged in the same charging document
in a separate count, or alternatively, if the offenses
charged, whether felonies or misdemeanors or both, are of
the same or similar character or are based on the same
transactions connected together or constituting parts of
a common scheme or plan. Allegations made in one count
may be incorporated by reference in another count.
[Emphasis added.]
In my view, at least, the proper interpretation of the
statutory language is that while the prosecution has the discretion
to charge different offenses or different statements of the same
offense in one information, separate offenses and different
statements of the same offense should be charged in separate
counts. A prosecutor would not charge two or more different
offenses in the same count -- e.g., aggravated kidnapping,
deliberate homicide and robbery all in count one of an information.
By the same token, since the emphasized portion of the statute
makes no differentiation between different offenses and different
statements of the same offense, it logically follows that the
statute contemplates that different statements of the same offense
be charged each in a separate count as well. To interpret the
language otherwise, would render the words "in a separate count"
surplusage; all the statute would have had to say is that two or
more offenses or different statements of the same offense may be
charged in the same charging document.
Here, had the offenses of felony assault under 5 45-5-
202 (2) (a), MCA, and under 5 45-5-202(2) (b), MCA, been charged in
separate counts as contemplated by the statute, the instructions
and verdict form would, more than likely, have followed
appropriately from the way in which the amended information was
16
drafted.
Chief Justice J.A. Turnk$and Justice Fred J. Weber join in
the foregoing dissent and special concurrence of Justice James C .
Nelson. A//
I I I -- --
I/
I’
Ghief Justice /f
Justice Karla M. Gray, specially concurring.
I concur in the Court's opinion on issue 1 regarding the
inadmissibility of "other acts" evidence. I join Justice Nelson's
special concurrence on issue 2 regarding the unanimity of the
verdict.
17
IN THE SUPREME COURT OF THE STATE OF MONTAN
No. 94-409 SW 1 3 I$95
STATE'OF MONTANA,
Plaintiff and Respondent,
-v-
RALPH 0. WELDY.
Defendant and Appellant.
In response to a petition for rehearing from the State of
Montana we amend the opinion as follows, beginning on page 10, line
12 :
We replace the above language with the following:
The cases cited by the State address alternative mental
states (purposely or knowingly) which relate to each
element of the offense in question. Purposely and
knowingly are not independent elements: Rather they are
alternative means of satisfying each of the elements of
the underlying offense. State v. Warnick, 202 Mont. 120,
128 (to sustain the charge of aggravated assault, the
state must prove each element of the offense was done
purposely or knowingly).
In Schad v. Arizona (1991), 501 U.S. 624, 111 S.Ct.
2491, 115 L.Ed.2d 555, the United States Supreme Court
held that it is erroneous to assume that statutory
alternatives are ipso facto independent elements defining
independent crimes under state law. "In point of fact .
. . legislatures frequently enumerate alternative means
o f committing a crime without intending to define
separate elements of separate crimes. . . ‘I In Kills on
Top v. State, 52 St.Rep. 608, we cited Schad for the
above proposition and held that the alternatives set
forth in the aggravated kidnapping statute § 45-5-303
MCA, represented different means of committing the same
offense rather than separate offenses. Accordingly, the
jury in Kills on TOP did not have to indicate upon which
alternative it based the defendant's guilt.
In Kills on TOP we were addressing the aggravated
kidnapping statue which has the following elements and
alternative means of satisfying those elements:
1 . Knowingly or purposely and without
lawful authority restrain another person by
either
a : secreting or holding in a place
of isolation; or
b: using or threatening physical
force
2. With the purpose of:
a: hold for ransom or reward or as
a shield
b: facilitating commission of
felony or flight thereafter,
c: to inflict bodily injury or
terrorize victim,
d: interfere with performance of
governmental or political function,
or
e: hold another in involuntary
servitude.
The alternatives in the aggravated kidnapping
statute are not separate elements in themselves, rather
they are different means of satisfying a specific common
element. The alternatives of secreting or threatening
physical force are alternative means of satisfying the
element of restraint. The five alternatives of
facilitating commission of robbery or terrorizing the
victim, etc., are alternative means of satisfying the
element of purpose.
In contrast, the felony assault statute involved in
the present case states that a person commits the offense
of felony assault if he purposely or knowingly causes:
1 . Bodily injury with a weapon;
2. Reasonable apprehension of bodily
injury with a weapon, or
3. Bodily injury to a peace officer.
These three alternatives, unlike the alternatives in
the aggravated kidnapping statute, are not alternative
means of satisfying one ccmmon element. Rather, they
each set forth separate offenses in themselves.
Sincetheyrepresent separate offenses, they should,
as the special concurrence suggests, be charsed as
separate offenses. Here, they were charged in one count
as one offense.
In addition, change the last paragraph on page 10 to read:
In all other respect the
The petition for reheari
Justices