No
No. 98-639
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 246
296 Mont. 190
989 P.2d 300
CITY OF RED LODGE,
Plaintiff and Respondent,
v.
WILLIAM P. NELSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial
District,
In and for the County of Carbon,
The Honorable G. Todd Baugh, Judge presiding.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-639_(10-14-99)_Opinion_.htm (1 of 9)4/9/2007 1:16:09 PM
No
COUNSEL OF RECORD:
For Appellant:
Raymond G. Kuntz, Attorney at Law, Red Lodge, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Pamela Collins,
Assistant Attorney General, Helena, Montana
Gary R. Thomas, Red Lodge City Attorney, Red Lodge, Montana
Submitted on Briefs: July 8, 1999
Decided: October 14, 1999
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶ Defendant William P. Nelson (Nelson) appeals from the judgment and order of the
Thirteenth Judicial District Court, Carbon County.
¶ We affirm.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-639_(10-14-99)_Opinion_.htm (2 of 9)4/9/2007 1:16:09 PM
No
¶ We restate the issue as follows:
¶ Whether the District Court abused its discretion in granting the City of Red
Lodge's motion in limine.
Standard of Review
¶ We review a district court's grant or denial of a motion in limine for whether the
district court abused its discretion. Bramble v. State of Montana, 1999 MT 132, ¶ 16,
___ P.2d ___, ¶ 16, 56 St.Rep. 532, ¶ 16.
Factual and Procedural Background
¶ Early in the morning of August 29, 1997 Nelson had a disagreement with his
partner, Donna Nelson, and struck her several times in the face, breaking her jaw.
Nelson was charged with partner assault, a misdemeanor, under § 45-5-206, MCA,
and convicted of partner assault in the City Court of Red Lodge in April, 1998. In
May, 1998 Nelson appealed his conviction to district court and requested a de novo
trial by jury.
¶ At an omnibus hearing in July, 1998 Nelson gave notice of his intent to rely on the
defense of self defense. In his trial brief, Nelson declared his intent to introduce
evidence at trial of Donna Nelson's "prior convictions for assault for the purpose of
showing her intent to assault him." In September, 1998 the City of Red Lodge
(hereafter, Red Lodge) filed a motion in limine to prohibit Nelson from introducing
into evidence any criminal convictions of Donna Nelson. Nelson filed a response to
Red Lodge's motion in limine, arguing that Donna Nelson's prior convictions were
admissible to show her intent to assault him and to show that he used reasonable
force against her. The District Court granted Red Lodge's motion in limine.
Following a trial by jury, Nelson was convicted of partner assault and sentenced to
one year in jail, to be served concurrent with the sentence he was serving at Montana
State Prison, and with credit for time already served. From that judgment and order
Nelson appeals.
Discussion
¶ Nelson argues that the prior convictions of Donna Nelson were admissible under
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-639_(10-14-99)_Opinion_.htm (3 of 9)4/9/2007 1:16:09 PM
No
Rules 404(a)(2) and 405(b), M.R.Evid., and that the District Court abused its
discretion in granting Red Lodge's motion in limine. Nelson argues further that he
relied on the defense of justifiable force at trial, that he made timely assertions that
he knew of Donna Nelson's prior convictions when he struck her, and that evidence
of those convictions was necessary for him to establish that his use of force was
reasonable in light of Donna Nelson's character for violence. Nelson also contends
that the District Court's grant of Red Lodge's motion in limine prejudiced his
substantive rights and was reversible error.
¶ Red Lodge responds that Nelson did not rely on the defense of justifiable force but
rather claimed that his contacts with Donna Nelson were accidental. Further, Red
Lodge contends that Nelson never asserted that he knew of Donna Nelson's prior
convictions when he struck her. Thus, the evidence of Donna Nelson's prior
convictions was not relevant to the defense of accident on which Nelson relied.
¶ We begin by examining Montana's justifiable use of force statute and Rules 404
and 405, M.R.Evid. Montana's justifiable use of force statute provides in pertinent
part:
Use of force in defense of person. A person is justified in the use of force or
threat to use force against another when and to the extent that he reasonably
believes that such conduct is necessary to defend himself or another against
such other's imminent use of unlawful force.
Section 45-3-102, MCA.
¶ Rule 404 provides in part:
(a) Character evidence generally. Evidence of a person's character or a trait of
character is not admissible for the purpose of proving action in conformity
therewith on a particular occasion, except:
....
(2) Character of victim. Evidence of a pertinent trait of character of the victim
of the crime offered by an accused . . . .
Rule 404(a)(2), M.R.Evid. We have previously concluded that "[w]here character
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-639_(10-14-99)_Opinion_.htm (4 of 9)4/9/2007 1:16:09 PM
No
evidence is admissible pursuant to Rule 404, M.R.Evid., character or a character trait can
be proven through reputation evidence or specific instances of conduct evidence as
expressly authorized in Rule 405, M.R.Evid." State v. Sattler, 1998 MT 57, ¶ 44, 288
Mont. 79, ¶ 44, 956 P.2d 54, ¶ 44.
¶ Rule 405(b) has two alternative prongs for the admission of specific instances of
conduct and provides in pertinent part:
Specific instances of conduct. In cases in which character or a trait of
character of a person is an essential element of a charge, claim, or defense, or
where the character of the victim relates to the reasonableness of force used
by the accused in self defense, proof may also be made of specific instances
of that person's conduct.
Rule 405(b), M.R.Evid. (emphasis added). Nelson relies on the second prong of Rule 405
(b), which recognizes specific instances of conduct "where the character of the victim
relates to the reasonableness of the force used by the accused." Rule 405(b), M.R.Evid.
¶ The parties disagree over the threshold question whether Nelson relied at trial on
the defense of justifiable force. Nelson argues that the notice he gave at the omnibus
hearing of his intent to rely on the defense of self defense (hereafter, notice of intent),
his trial brief in which he stated he would introduce evidence of Donna Nelson's prior
assault convictions, and his response to Red Lodge's motion in limine amply establish
that he relied on the defense of self defense. However, Nelson's mention of the defense
of self defense in his notice of intent, trial brief, and response to Red Lodge's motion
in limine did not place the matter of self defense at issue in his trial. Compare State v.
Logan (1970), 156 Mont. 48, 65, 473 P.2d 833, 842 (concluding "[t]he notice of
intention to rely on self-defense served by defendant on the state prior to trial is
immaterial and does not place this matter in issue at trial. Defendant is not bound to
rely on this defense at the trial notwithstanding service of this notice").
¶ Nelson argues further that he relied on the defense of self defense at trial. However,
the portions of the trial transcript to which Nelson has directed this Court do not
support his contention but show rather that he relied on the defense that he
accidentally struck Donna Nelson. Nelson testified that on the night he struck Donna
Nelson, he and Donna Nelson had been to a bar, in violation of his probation, and
that he had spoken with another woman. He and Donna Nelson quarreled over his
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-639_(10-14-99)_Opinion_.htm (5 of 9)4/9/2007 1:16:09 PM
No
conversation with that woman. Nelson testified further that when he and Donna
Nelson returned home, Donna Nelson threw a vase that struck his throat and
shattered when it hit the floor. Nelson testified that he hit the ground after the vase
struck him but that he "was pretty mellow." He asked Donna Nelson to leave and he
walked into a TV room. Nelson turned on a large TV that had a VCR attachment
and sat down in a chair as Donna Nelson came behind him. Nelson further testified:
And I been through some of her rages before, and she takes and she goes to
grabbing that TV and turning towards me, and I'm perceiving the incident that
just happened with the vase, that I'm about to get hurt here, and I took and I
jumped up and--meaning to hit the TV with this part of my arm (indicating), I
took and threw out my arm and very assertively, and hit the TV. And this part
of my hand here hit Donna on the jaw.
¶ On cross-examination, Red Lodge asked Nelson:
Q. So to keep her from picking up the TV and the [VCR] attachment and hitting you over
the head with it, you did something with your arm, correct?
A. Right.
Q. And as I understand your testimony, you went to hit at the TV?
A. I did hit the TV.
Q. Correct; with part of your arm?
A. The side of my arm.
Q. And the --
A. (Indicating.)
Q. --then the rest of your hand accidentally hit her jaw with enough force to break it?
A. The rest of my hand hit her jaw, yes. It wasn't intentional.
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-639_(10-14-99)_Opinion_.htm (6 of 9)4/9/2007 1:16:09 PM
No
¶ Thus, Nelson testified repeatedly that he intended to hit the TV but accidentally
struck Donna Nelson's jaw. Nelson relied on the defense of accident, and he makes no
claim that Donna Nelson's prior convictions were necessary for him to establish that
defense. Accordingly, for purposes of his defense of accident, Nelson's reliance on
Sattler for the admission of Donna Nelson's prior convictions is misplaced. In Sattler,
defendant Sattler, an inmate, testified that he did not intend to kill another inmate
but that he struck him in self-defense; however, Sattler did not contend that he
accidentally hit the victim. See Sattler, ¶ 24.
¶ We note, however, that our review of the record discloses that at the conclusion of
Nelson's direct examination, the following exchange occurred:
Q. That's fine. That's fine. That's all. The night of August 29, 1997, did you have in your
own mind a belief that you were in danger?
A. You bet I did.
Q. Were you the initial aggressor?
A. No, I was not.
Q. Do you believe that the force you used was force necessary to defend yourself?
A. Yes, I do.
¶ Arguably, in testifying that he used the force that he thought necessary to defend
himself, Nelson meant that he intended to strike Donna Nelson and that his contact
with her was deliberate. Thus, there is a tenuous basis in the record from which to
conclude that Nelson relied on the defense of self defense. However, the foregoing
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-639_(10-14-99)_Opinion_.htm (7 of 9)4/9/2007 1:16:09 PM
No
testimony is also consistent with Nelson's previously asserted defense of accident and
the implicit claim that although he used the force he thought necessary, he did not
intend to strike Donna Nelson. As previously discussed, moreover, during his cross-
examination Nelson emphatically reaffirmed his contention that he accidentally
struck Donna Nelson. We conclude that the record offers scant support for Nelson's
contention that he relied on the defense of self defense.
¶ However, even assuming arguendo that Nelson relied on the defense of self defense,
the record clearly establishes that evidence of Donna Nelson's prior convictions for
assault lacked relevance because Nelson never asserted that he knew of those
convictions when he struck her. Contrary to Nelson's contention, he did not assert in
either his trial brief or his response to Red Lodge's motion in limine that he knew of
Donna Nelson's prior convictions for assault when he struck her. Thus, Donna
Nelson's prior convictions for assault lacked relevance under the second prong of
Rule 405(b), which again recognizes specific instances of conduct "where the
character of the victim relates to the reasonableness of force used." Rule 405(b), M.R.
Evid. We note that Donna Nelson's prior convictions also lacked
relevance under the first prong of Rule 405(b), because a victim's character for
violence is not an "essential element" of the defense of justifiable force. Compare
Rule 405(b), M.R.Evid. (providing "[i]n cases in which character or a trait of
character of a person is an essential element of a charge, claim, or defense, . . . proof
may also be made of specific instances of that person's conduct") (emphasis added).
Nor do we find persuasive Nelson's claim that he was unable to establish his
knowledge of her prior convictions at trial because of Red Lodge's motion in limine.
Nothing prevented Nelson from alleging that he had timely relevant knowledge of
Donna Nelson's prior convictions in his trial brief or his response to Red Lodge's
motion in limine. We hold that the District Court did not abuse its discretion in
granting Red Lodge's motion in limine. Because this holding is dispositive, we do not
address Nelson's argument that the District Court's abuse of discretion was
reversible error.
¶ Affirmed.
/S/ W. WILLIAM LEAPHART
We concur:
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-639_(10-14-99)_Opinion_.htm (8 of 9)4/9/2007 1:16:09 PM
No
/S/ J. A. TURNAGE
/S/ WILLIAM E. HUNT, SR.
/S/ KARLA M. GRAY
Justice Terry N. Trieweiler specially concurring.
¶ I concur with the result of the majority opinion. However, I conclude that any
discussion past paragraph 16 is unnecessary and therefore, specially concur in only
that part of the opinion which includes paragraphs 1 through 16.
¶ The Defendant, William P. Nelson, clearly testified that he struck Donna Nelson by
accident. His contention that he did not intend to strike her is inconsistent with a
defense that he struck her in self-defense. Therefore, in spite of what he did or didn't
know about her prior conduct at the time of the event which formed the basis for the
charges against him, Donna Nelson's prior conduct was irrelevant. For this reason
alone, I would affirm the judgment of the District Court.
/S/ TERRY N. TRIEWEILER
file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/98-639_(10-14-99)_Opinion_.htm (9 of 9)4/9/2007 1:16:09 PM