NO. 95-332
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
STATE OF MONTANA,
Plaintiff and Respondent,
v.
ROWDY DANE ANDERSON, a/k/a
ROWDY DANE BROCK,
Defendant and Appellant.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Sheridan,
The Honorable David Cybulski, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Loren J. O'Toole, II, O'Toole & O'Toole, Plentywood,
Montana
For Respondent:
Joseph P. Mazurek, Attorney General, Micheal
Wellenstein, Assistant Attorney General, Helena,
Montana; Steven Howard, Sheridan County Attorney,
Plentywood, Montana
Submitted on Briefs: December 21, 1995
Decided: March 8, 1996
Filed:
Justice James C. Nelson delivered the Opinion of the Court.
Appellant Rowdy Dane Anderson a/k/a Rowdy Dane Brock, appeals
his conviction of issuing a bad check as part of a common scheme,
a felony. We affirm.
The sole issue presented for review is:
Did the District Court abuse its discretion by admitting
evidence of other crimes?
Background Facts
On October 14, 1994, Appellant opened a checking account with
Security State Bank in Plentywood, Montana. Appellant represented
to a bank employee that he would make an initial deposit of $70
into his account. However, that deposit was never made.
Appellant began to write checks the same day he opened his
account. Over the next three weeks, Appellant wrote checks
totalling more than $600, yet the only deposit received by the bank
was for $54.86 on October 31, 1994. At trial, Appellant admitted
that he knew when he wrote the checks that there was no money in
his account. He also claimed that he deposited a money order for
$450 into the night depository at the bank on October 25, 1994,
however, the bank was unable to locate any deposit for that amount.
On December 1, 1994, the State charged Appellant with one
count of issuing a bad check as part of a common scheme, a felony,
in violation of § 45-6-316, MCA. At the February 1, 1995 omnibus
hearing, the State informed Appellant that it would rely on other
crimes evidence at trial. That same day the State filed a notice
with the District Court wherein the State specified that the other
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crimes evidence it intended to introduce at trial related to
Appellant's February 15, 1994 conviction in Meagher County of
issuing a bad check as part of a common scheme.
The other crimes evidence was admitted at the March 8, 1995
trial over the objections of Appellant's counsel. Appellant's
probation and parole officer was allowed to testify regarding
Appellant's prior conviction. The District Court instructed the
jury on the purpose of the other crimes evidence prior to the
parties making their opening statements and again at the time the
other crimes evidence was admitted. In its final instructions to
the jury, the court once again related the purpose of the other
crimes evidence.
Appellant was found guilty of issuing a bad check as part of
a common scheme. The District Court declared Appellant a
persistent felony offender and sentenced him to 20 years in Montana
State Prison with 15 years suspended.
Discussion
Did the District Court abuse its discretion by admitting
evidence of other crimes?
The District Court admitted the evidence of Appellant's other
crimes over the objections of Appellant's counsel and permitted the
state probation and parole officer to testify regarding the other
crimes evidence. Appellant contends that the introduction of his
previous crime in Meagher County through the state probation and
parole officer was so highly prejudicial that the judgment should
be reversed.
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The standard of review for evidentiary rulings is whether the
District Court abused its discretion. State v. Pace (1995), 272
Mont. 464, 466, 901 P.2d 557, 559 (citing State v. Keys (1993), 258
Mont. 311, 314, 852 P.2d 621, 623). The District Court has broad
discretion to determine whether evidence is relevant and
admissible, and absent a showing of an abuse of this discretion,
the court's determination will not be overturned. PaceI
- 901 P.2d
at 559.
Rule 404(b), M.R.Evid., governs the admissibility of evidence
of other crimes, wrongs or 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 purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
In State v. Just (1979), 184 Mont. 262, 602 P.2d 957, we
required the State to meet four requirements before introducing
evidence of other crimes, wrongs or acts. Subsequently, in State
v. Matt (1991), 249 Mont. 136, 814 P.2d 52, we modified these
requirements.
This modified Just rule found in Matt sets forth the basis for
the admission of evidence of other crimes, wrongs or acts as
referred to and described in Rules 404(b) and 403, M.R.Evid.:
(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,
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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.
Matt 814 P.2d at 56.
-I
We examine each of the four requirements and apply them to the
case before us. First, we determine if the crimes were
sufficiently similar in nature. The crime Appellant was charged
with in the instant case is exactly the same as the crime he was
convicted of in 1994, issuing bad checks as part of a common
scheme. Consequently, the prior crime was not only similar, it was
identical.
Second, we determine if the previous crimes were too remote in
time to be admissible. The previous crimes were committed in
October and November 1993, one year prior to the commission of the
current charged offenses. This Court recently stated that three
years is not so remote in time as to bar the admission of other
crimes evidence when the acts are substantially similar. State v.
Brogan (1995), 272 Mont. 156, 166-67, 900 P.2d 284, 290-91.
Therefore, one year is not so remote in time as to bar the
admission of the other crimes evidence in the instant case.
Third, we determine if the evidence of other crimes was
admitted for one of the purposes set forth in Rule 404(b),
M.R.Evid. Appellant's counsel contended in his opening statement
that the bank lost Appellant's deposit of $450 and that it was not
Appellant's intent to write checks without sufficient funds in his
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account. The State contends that it introduced the evidence of
other crimes to demonstrate that Appellant knew there was no money
in his account when he wrote the checks and to show that it was not
mistake or accident that caused the checks to bounce. Intent,
knowledge and absence of mistake or accident are permissible
purposes for admitting other crimes evidence. Rule 404(b),
M.R.Evid.; Matt 814 P.2d at 56.
-I
Fourth, we determine if the probative value of the prior crime
evidence was substantially outweighed by the danger of unfair
prejudice. It is inevitable that the introduction of evidence of
a prior crime will have some prejudicial effect on a defendant.
State v. Brooks (19931, 260 Mont. 79, 84, 857 P.2d 734, 737.
However, when the prior crime evidence meets the first three
elements of the modified Just rule, the prior crime evidence
necessarily carries great probative weight. Brooks, 857 P.2d at
737 (citing State v. Eiler (1988), 234 Mont. 38, 51, 762 P.2d 210,
218). Here, Appellant has not established the existence of more
than the "inevitable" amount of prejudice resulting from the use of
prior crime evidence. Thus, after weighing the probative value of
the prior crime evidence against the prejudice to Appellant, and
taking into consideration the satisfaction of the first three
requirements of the modified Just rule, we hold that, in the
instant case, the probative value of the prior crime evidence
outweighs the danger of unfair prejudice to Appellant.
Additionally, certain procedural protections were established
in Just and clarified in u. These protections include:
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(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 evidence of
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 such evidence and shall admonish it to weigh
the evidence only for such purposes.
(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, warning
them that to convict for other offenses may result in
unjust double punishment.
Matt
-I 814 P.2d at 56.
In the case before us on appeal, the State gave written notice
to Appellant that it intended to introduce evidence of Appellant's
1994 conviction for issuing bad checks. Furthermore, at the time
the State introduced this evidence, the District Court explained to
the jury the purpose for which the evidence was being admitted and
admonished the jury to weigh the evidence only for that purpose.
The court instructed the jury that Appellant was not being tried
for and could not be convicted of any offense except that with
which he was charged. The court warned the jury that to convict
Appellant for other offenses may result in unjust double
punishment. Thus, we hold that the District Court followed the
procedural requirements of the modified Just rule in this case.
Appellant also argues that the introduction of the other
crimes evidence through Appellant's probation and parole officer
prejudiced the jury and that the introduction of a prior conviction
was unnecessary because it did not rebut or counter any claim of
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mistake or accident and that it did not show any plan, prove any
motive or show any knowledge. However, while Appellant did
generally object to the admission of the other crimes evidence and
to the State's first witness testifying that he was Appellant's
probation and parole officer, Appellant did not raise a specific
objection to the State introducing the other crimes evidence
through its first witness or to the State introducing the other
crimes evidence in its case-in-chief. This Court has long held
that it will not address an alleged error that is deemed waived by
lack of timely objection at trial. Section 46-20-104(2), MCA;
State v. Cooney (1995), 271 Mont. 42, 47, 894 P.2d 303, 306.
Moreover, Appellant's argument fails to consider that the
State, during its case-in-chief, had the burden of proving each
element of the charged offense. There is no rule requiring the
State to wait until rebuttal to present evidence proving the
elements of the charged offense. Appellant's comments in his
opening statement to the jury regarding a lost deposit were
sufficient to entitle the State to present the other crimes
evidence and the order in which the State presented this evidence
is of no consequence.
Accordingly, we hold that the District Court did not abuse its
discretion by admitting evidence of Appellant's prior conviction
for issuing bad checks.
Affirmed.
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