concurring:
I agree that defendant’s conviction should be reversed, but I do not agree with all that is said concerning the admissibility of similar offenses. I shall confine my remarks however, to the reasons for admitting the evidence and the instructions given to explain the limited purpose for which the jury could consider the evidence.
Assuming the admissibility of the evidence of other assaults committed upon the wife by her husband, the reasons for admission of the evidence were not for all the reasons stated in Rule 404(b), Mont.R.Evid. I cannot conceive that the evidence in this case against the defendant was admitted for the purpose of showing the defendant’s “possible motives, opportunities, intent, preparation, plan, knowledge, identity, absence of accident in relation to the crime charged.” The rule itself lists the foregoing as the possible exceptions under which such testimony can be admitted, but certainly those reasons do not exist in each case.
For example, in this case, the evidence could have been admitted to show defendant’s motives (that is, a longstanding and bitter relationship with his wife which frequently led to physical assaults). But the remaining factors in Rule 404 were not applicable to this case. Therefore, the prosecution should have been more careful in selecting the grounds and marshalling the reasons for the admissibility of the evidence, and the trial court should have been more careful in instructing the jury. Clearly, under the facts of this case, the jury was not entitled to consider all of the exceptions listed *313in Rule 404(b) as being reasons why the evidence was admitted. If, after assessing the need for such evidence, and applying the proper balancing test as to whether or not to admit such evidence, the trial court does admit such evidence, it is its duty to carefully instruct the jury as to the precise reason why it was admitted, and to caution the jury that it can be considered for no other reason.
I am also concerned in this case about the sloppy method by which the prosecutor sought admission of the alleged previous assaults. Absolutely no effort was made to tie each assault to a time and place, and therefore permit the defendant to meaningfully defend against these accusations. Moreover, the evidence as admitted, could have been extremely confusing to the jury. Because of the varying testimony as to the alleged previous assaults the jury could well have erroneously concluded that the defendant had assaulted his wife on more occasions than was actually the case. If the prosecution cannot tie these events into a time and place so as to become a definite event, the evidence being so inherently prejudicial in the first place, despite the need for it in this case, should not be admitted.