State v. Martin

No. 95-424
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

STATE OF MONTANA,
Plaintiff and Respondent,
v.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Katherine R. Curtis, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Stephen J. Nardi; Sherlock & Nardi, Kalispell,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
John Paulson, Ass't Attorney General,
Helena, Montana
Thomas Esch, Flathead County Attorney, Kalispell,
Montana

Submitted on Briefs: August 8, 1996
Decided: November 14, 1996
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.

Len Martin (Martin) appeals from the judgment and sentence
entered by the Eleventh Judicial District Court, Flathead County,
on a jury verdict finding him guilty of three counts of sexual
assault, two counts of sexual intercourse without consent and two
counts of deviate sexual conduct, all felony offenses. We affirm.
Martin raises the following issues on appeal:
1. Did the District Court abuse its discretion in denying
Martin's motion to sever the charges against him?
2. Did the prosecutor engage in misconduct which deprived
Martin of his right to a fair trial?
3 . Did the District Court abuse its discretion in allowing
the State to cross-examine a defense witness with regard to whether
that witness provided false information in an unrelated criminal
proceeding?
The State of Montana (State) filed two separate informations
against Martin. All of the charges against Martin contained in the
informations were sexual offenses by Martin against minor children.
In Cause No. DC-94-197(B), the State charged Martin with one count
of sexual intercourse without consent, two counts of sexual assault
and three counts of deviate sexual conduct. In Cause No. DC-94-

201 (B) , it charged Martin with two counts of sexual intercourse
without consent and two counts of sexual assault. Martin pled not
guilty to all of the charges.
The State moved to consolidate, contending that the cases were
related; that the offenses in both occurred in the same time frame;
2
and that consolidation would be in the interests of judicial
economy. The District Court granted the State's motion without
input from Martin and without holding a hearing. Thereafter,
Martin moved to sever the counts against him into five separate
cases for trial purposes. After conducting a hearing, the District
Court concluded that Martin had not met his burden of proving that
prejudice would result from joinder of all of the counts and denied
Martin's motion to sever.
Prior to trial, Martin moved to dismiss three counts of
deviate sexual conduct as multiplicitous, and one count of sexual
assault based on a lack of evidence. The District Court denied his
motion with regard to the deviate sexual conduct charges, but
dismissed the sexual assault charge. Subsequently, pursuant to a
motion by the State, the court dismissed one count of deviate
sexual conduct.
All of the incidents forming the basis of the charges against
Martin occurred at his cabin on the North Fork of the Flathead
River. K.T. testified that she was alone with Martin at his cabin
on several occasions when she was between the ages of seven and
nine and, on such occasions, the following events occurred. Martin
asked her to haul wood at his cabin and offered her a glass of
water to drink before she did so. K.T. stated that the water
smelled like alcohol. Later, Martin sat next to K.T. on the couch
and put his hands on her legs and moved his hands beneath her
underwear. K.T. asked Martin to remove his hands, but he refused.
On another occasion, Martin laid on top of K.T. in his night

3
clothes and moved his body around. K.T. would attempt to hide from
Martin in the loft of the cabin. She did not tell anyone about
what Martin had done to her because he had threatened to hurt her
and her family.
C.H.'s grandparents owned a cabin near Martin's cabin. C.H.
and Martin's stepson, Cody, were friends and C.H. went over to
Martin's cabin on numerous occasions to see Cody. When C.H. was
ten years old and visiting Martin's cabin in 1992, Martin asked
Cody and C.H. if they would like to go outside and roast
marshmallows. Martin built a fire and sent Cody to C.H.'s
grandparents' cabin for marshmallows. Martin fondled C.H. and then
led C.H. to some brush off of a trail near the cabin, where he
continued to fondle C.H.'s penis, made C.H. rub his penis and had
anal intercourse with C.H. C.H. did not tell anyone about the
incident with Martin because Martin threatened to kill him and his
family.
M.G. lived near Martin in Kalispell, Montana. When M.G. was
thirteen years old, Martin asked M.G. if M.G. would go to his cabin
and help him burn some brush. Martin bought M.G. a six-pack of
beer on the way to the cabin and, after arriving there, gave M.G.
several shots of whiskey. M.G. became very drunk and felt sick to
his stomach. M.G. laid down on the floor and Martin rubbed his
stomach; Martin told M.G. that he learned in alcohol classes that
rubbing the stomach in different directions "make[s] the sickness
go away." Martin began rubbing M.G.'s penis. M.G. passed out and,

4
when he woke up, Martin was on top of him having anal intercourse
with him. M.G. became sick and threw up
K.G. is M.G.'s younger brother. When K.G. was eleven years
old, Martin asked K.G. to help him fill in a ditch at the cabin.
On the way to the cabin, Martin stopped and bought K.G. some Mad
Dog wine. At the cabin, Martin suggested that K.G. lie down so he
could rub K.G.'s stomach and make K.G. sober. Martin moved his
hand down K.G.'s pants and fondled K.G.'s penis. K.G. became sick
and threw up on his shirt.
At the close of the State's case-in-chief, the District Court
dismissed one count of sexual intercourse without consent,
allegedly committed against K.T., due to a lack of evidence. A
jury found Martin guilty of the remaining seven charges, which
included two counts of sexual intercourse without consent, three
counts of sexual assault and two counts of deviate sexual conduct.
Martin appeals
1. Did the District Court abuse its discretion in
denying Martin's motion to sever the charges against him?
Section 46-13-211(l), MCA, provides:
If it appears that a defendant or the prosecution is
prejudiced by a joinder of charges or defendants in an
indictment, information, or complaint or by a joinder for
trial together, the court may order separate trials,
grant a severance of defendants, or provide whatever
other relief justice requires.
In determining whether to grant a motion to sever, trial courts
must balance the possibility of prejudice to the defendant against
the judicial economy resulting from a joint trial. State v.
Richards (1995), 274 Mont. 180, 188, 906 P.2d 222, 226-27 (citing

5
State v. Campbell (1980), 189 Mont. 107, 120, 615 P.2d 190, 198).
This balancing process is within the discretion of the trial court
and, absent an abuse of discretion, we will not substitute our
judgment for that of the trial court. Richards, 906 P.2d at 227.
Judicial economy weighs heavily in the court's balancing
process. Richards, 906 P.2d at 227 (citing Camobell, 615 P.2d at
198). Factors providing the basis for the predisposition for joint
trials include expediting the administration of justice, reducing
congestion in trial dockets, conserving judicial time, reducing the
burden on jurors in terms of time and money sacrificed, and
avoiding recalling witnesses who otherwise would only have to
testify once. Richards, 906 P.2d at 227; Campbell, 615 P.2d at
198.
A criminal defendant moving for severance under § 46-13-
211(1), MCA, bears the burden of proving that joinder of the
charges is prejudicial. & State v. Slice (1988), 231 Mont. 448,
451, 753 P.2d 1309, 1311. It is not sufficient that the defendant
prove some prejudice or that he or she stands a better chance of
acquittal if separate trials are held. Richards, 906 P.2d at 227.
To satisfy this burden, the defendant must prove that the prejudice
was so great as to prevent a fair trial. Richards, 906 P.2d at 227
(citations omitted). As a result of the defendant's burden of
proof, the strong pressure in favor of joinder of charges exerted
by considerations of judicial economy and the deference afforded
trial courts, we seldom reverse a trial court's denial of a

6
criminal defendant's motion to sever. See Camobell, 615 P.2d at
198 (citations omitted).
Three types of prejudice may result from the consolidation of
charges. Richards, 906 P.2d at 227. First, a jury may consider
the criminal defendant facing multiple charges a "bad man" and
accumulate evidence until it finds him guilty of something.
Second, a jury may use proof of guilt on one count to convict the
defendant of a second count even though the proof would be
inadmissible at a separate trial on the second count. Third,
prejudice may occur when the defendant wishes to testify on his or
her own behalf on one charge but not another. Richards, 906 P.2d
at 227 (citing State v. Orsborn (1976), 170 Mont. 480, 555 P.2d
509). We consider each type of prejudice below vis-a-vis Martin's
arguments and the evidence presented.
A. Accumulation of Evidence

The first type of prejudice occurs where the jury accumulates
evidence to convict the defendant of something because he is a bad
person. The cumulative effect of evidence is not sufficient,
standing alone, to warrant severance. Richards, 906 P.2d at 227.
Martin argues that joinder of the multiple charges and the use
of overlapping evidence invited the jury to convict him because he
was a bad person. He does not establish that this type of
prejudice occurred, however, and a bald assertion that the multiple
charges and overlapping evidence "invited" the jury to convict him
is insufficient to meet his burden of demonstrating the existence
of this first type of prejudice.

7
 B. Use of Inadmissible Evidence

The second type of prejudice occurs when the jury uses proof
of guilt on one count to convict the defendant of another count
even though the evidence would have been inadmissible at a separate
trial on the second count. No prejudice of this type will be found
where the evidence presented at the joint trial was simple and
distinct. Richards, 906 P.2d at 227 (citations omitted).
Moreover, when the charges are few and the evidence is
straightforward, there is no reason to assume the jury was confused
and unable to keep the relevant evidence separate. Camobell, 615
P.2d at 199 (citations omitted).
Martin contends that he was prejudiced by joinder of the
numerous charges involving K.T., C.H., M.G. and K.G. because
evidence'relating to the separate charges against him would not
have been admissible in separate trials. He relies on Rule 404(b),
M.R.Evid., and State v. Matt (1991), 249 Mont. 136, 814 P.2d 52
In -I
Matt we modified the Just rule for the admission of
evidence of other crimes, wrongs or acts as established in State v.
Just (1979), 184 Mont. 262, 602 P.2d 957. The Modified Just Rule,
which sets forth the bases for, and limitations on, admission of
evidence described in Rules 404(b) and 403, M.R.Evid., provides:
(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,

8
 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
-I 814 P.2d at 56. Although not at issue in this case, the
Modified Just Rule also clarifies the procedural protections
previously required under Just. See Matt, 814 P.2d at 56.
(1) Similarity

A separate act or crime need not be identical to the charged
offense to be admissible as evidence, but there must be sufficient
similarity between the prior act and the charged offense. State v.
Romero (1993), 261 Mont. 221, 225, 861 P.2d 929, 932 (citing State
v. Tecca (1986), 220 Mont. 168, 714 P.2d 136). Martin contends
that the incidents involving K.T., C.H., M.G. and K.G. are not
sufficiently similar under the Modified Just Rule.
Martin does not dispute that the incidents involving M.G. and
K.G. are sufficiently similar to each other under the first prong
of Modified -I in both instances, he lured the boys to his cabin
Just.
by requesting their help with work there, gave the boys alcohol and
assaulted the boys after they became drunk. He argues, however,
that the evidence regarding his alleged assaults of K.T. and C.H.
was not sufficiently similar to have been admitted in a separate
trial on the charges involving M.G. and K.G.
While we recognize that there are some differences between the
incidents involving K.T. and C.H. when compared with each other and
with the incidents involving M.G. and K.G., those differences do
9
not negate the similarity of the incidents. All four children were
minors between seven and thirteen years of age at the time of
Martin's acts. Each incident involved sexual contact by Martin
with a minor while the minor was alone with Martin at his cabin.
Martin asked K.T., M.G. and K.G. to help with work at his cabin;
while he did not ask C.H. to do work at his cabin, he did send Cody
away so that he could be alone with C.H. at the cabin.
Thus, the nature of the acts, the location of the incidents
and the age of the victims were largely identical and, where not
identical, were substantially similar. We conclude that the
incidents involving the four children were sufficiently similar to
be admissible pursuant to the first requirement of the Modified
Just Rule.
12) Remoteness

The incident involving K.T. occurred in 1987 and the incidents
involving C.H., M.G. and K.G. occurred in 1992 and 1993. Martin
argues that the passage of five years between the incidents
rendered his sexual contact with K.T. an isolated irxident too
remote to be admissible, under the second Modified Just prong, in
separate trials on the charges involving C.H., M.G. and K.G.
Remoteness goes to the credibility of the evidence rather than
its admissibility, unless the remoteness is so great that the
offered evidence has no value. Tecca
-I 714 P.2d at 139 (quoting
State v. Doll (1985), 214 Mont. 390, 692 P.2d 473). Moreover, we
consistently have declined to establish an arbitrary tim~e limit for
admitting other acts or crimes as evidence where such a cut-off

10
would exclude probative evidence. See Tecca, 714 P.2d at 139. In
addition, we have concluded that the remoteness problem is
alleviated where there is a continuing pattern of similar conduct.
See Tecca, 714 P.2d at 139 (citation omitted).
Here, the incidents at issue occurred within a five to six
year time period. While the K.T. incident properly may have been
given less weight because of the time lapse, it was not
inadmissible as a matter of law on remoteness grounds. Further-
more, any remoteness concerns were alleviated by the pattern of
similar conduct reflected in the later incidents. We conclude that
the evidence relating to K.T. was not too remote in time to have
been admissible, under the second prong of the Modified Just Rule,
in separate trials on the charges involving C.H., M.G. and K.G.
(3) Purpose of Evidence
Martin argues that only the evidence relating to M.G. and K.G.
would have been sufficiently similar to be relevant for
establishing a common plan or scheme. On that basis, he contends
that the testimony of K.T. and C.H. would have been inadmissible in
separate trials to establish a common plan or scheme under the
third prong of the Modified Just Rule.
We concluded above that the incidents involving K.T., C.H.,
M.G. and K.G. were sufficiently similar to be admissible under the
first Modified Just Rule prong because, in each instance, Martin
ensured that he would be alone at his cabin with the minor child.
His argument on this third prong merely restates his earlier
argument and does not go to the merits of the third Modified Just

11
prong. We conclude that the evidence relating to K.T. and C.H.
would have been admissible, under the third prong of the Modified
JUSt Rule, as proof of a common scheme or plan and absence of
mistake in separate trials.
(4) Probative Value vs. Prejudicial Effect
Martin argues that the prejudice to him of the evidence

relating to his sexual acts against K.T., C.H., M.G. and K.G.
outweighed its probative value and, therefore, that it would not
have been admissible in separate trials. We disagree.
Probative evidence is often inherently prejudicial to a
criminal defendant; mere prejudicial effect is not sufficient,
however, to render such evidence inadmissible. State v. McKnight
(1991), 250 Mont. 457, 465, 820 P.2d 1279, 1284 (citation omitted).
The "prejudice" prong of the Modified Just Rule precludes the
admission of relevant evidence only where its probity is
"substantially outweighed by the danger of unfair prejudice. . . .I'
&E&L, 814 P.2d at 56 (emphasis added). Unfairly prejudicial
evidence would
CalIS. the fact finder to ground a decision on an
emotional basis. Thus, evidence which tends to horrify,
evoke sympathy or increase a desire to punish due to a
prior act of a party and whose probative value is slight
may be properly excluded.

McKniqht, 820 P.2d at 1284 (quoting State v. Paulson (1991), 250
Mont. 32, 43, 817 P.2d 1137, 1143-44).
The evidence relating to Martin's acts involving K.T., C.H.,
M.G. and K.G. was ineluctably prejudicial. It did not meet the
McKnisht standard for exclusion under the fourth prong of the

12
Modified JUSt Rule, however. First, the probative value of the
evidence was substantial, rather than slight. Second, while
prejudicial, the evidence of other acts did not likely horrify,
evoke sympathy or increase a desire to punish on the charges at
issue. We conclude that the prejudicial effect of the evidence of
Martin's sexual acts against the children would not have
substantially outweighed the probative value of that evidence so as
to preclude its admissibility in separate trials under the fourth
prong of the Modified Just Rule.
Martin has failed to establish that evidence which would have
been inadmissible under the Modified Just Rule in separate trials
was admitted during his trial as a result of joinder of the various
charges against him. Therefore, we conclude that Martin did not
establish the existence of the prejudice which occurs when a jury
uses evidence of guilt relating to one charge to convict him on
another charge even though the evidence would have been
inadmissible in a trial on the second charge.
C. Self-Incrimination
Martin's final argument relating to the District Court's
denial of his motion to sever relates to the third type of
prejudice which may result from joinder of charges. He contends
that he wanted to testify on his own behalf as to the charges
involving K.T. and C.H., but did not want to testify as to the
charges involving K.G. and M.G. He argues, therefore, that joinder
was improper because it confounded the presentation of his defense.

13
 We observe, at the outset, that Martin's motion to sever
addressed this type of prejudice only generally. He cited to cases
involving the "confounding of a defense" prejudice, but his showing

consisted of one sentence asserting that his privilege against
self-incrimination would be severely compromised in a trial of
numerous charges involving numerous victims. In responding to
Martin's motion to sever, the State pointed out this deficiency.
Martin did not reply and the District Court subsequently denied the
motion to sever. While Martin made an offer of proof at trial that
he desired to testify on some, but not all, of the counts, the
offer of proof came too late to impact on the court's decision on
his motion to sever.
Martin had the burden of proving joinder of the charges was
prejudicial in confounding his defense by compromising his
privilege against self-incrimination. See Slice, 753 P.2d at 1311.
Martin's one sentence assertion that his privilege against self-
incrimination would be compromised is insufficient to prove the
existence of this type of prejudice.
A criminal defendant attempting to sever charges bears the
burden of establishing that prejudice resulted from joinder and, in
addition, that the prejudice was so great as to prevent a fair
trial. See Richards, 906 P.2d at 227. We conclude that Martin
failed to prove the existence of any one of the kinds of prejudice
resulting from joinder which would have required the District Court
to grant his motion to sever. Moreover, joinder in this case
reduced the congestion of the District Court's trial docket;

14
avoided recalling the children as witnesses in separate trials,
thereby reducing the trauma to the children; and conserved judicial
time. Thus, joinder in this case promoted judicial economy, a

factor which weighs heavily in a trial court's balancing process in
determining whether to grant a motion to sever. See Richards, 906
P.2d at 227; Campbell, 615 P.2d at 198. We hold, therefore, that
the District Court did not abuse its discretion in denying Martin's
motion to sever.
2. Did the prosecutor engage in misconduct which
deprived Martin of a fair trial?
Martin argues that he was deprived of his right to a fair
trial by three instances of prosecutorial misconduct.
Specifically, he contends that the State improperly appealed to the
jury to act as protectors of the community; improperly gave its
opinion on witness credibility during its closing argument; and
improperly called a rebuttal witness to impeach one of Martin's
witnesses. The record before us demonstrates that Martin did not
object at trial to any of the alleged instances of misconduct he
now raises, and it is well established that we will not consider
issues raised for the first time on appeal. See State v. Losson
(1993), 262 Mont. 342, 351, 865 P.2d 255, 260; State v. Ogle

(1992), 255 Mont. 246, 250-51, 841 P.2d 1133, 1135-36.
Moreover, § 46-20-104(2), MCA, provides:
Upon appeal from a judgment, the court may review the
verdict or decision and any alleged error objected to
which involves the merits or necessarily affects the
judgment. Failure to make a timely objection during
trial constitutes a waiver of the objection except as
provided in 46-20-701(2).

15
(Emphasis added.) Section 46-20-701(2), provides an exception to
the 13 46-20-104(2), MCA, waiver of objections not timely made where
the alleged error was prejudicial to the defendant's guilt or
punishment and:
(a) the right asserted in the claim did not exist at
the time of the trial and has been determined to be
retroactive in its application;
(b) the prosecutor, the judge, or a law enforcement
agency suppressed evidence from the defendant [convicted
person1 or his attorney that prevented the claim from
being raised and disposed of; or
(c) material and controlling facts upon which the
claim is predicated were not known to the defendant
[convicted person1 or his attorney and could not have
been ascertained by the exercise of reasonable diligence.
Here, Martin's failure to object to the alleged instances of
prosecutorial misconduct at trial constitutes a waiver of those
objections pursuant to 5 46-ZO-104(2), MCA. Martin does not argue
that he is entitled to review of his arguments relating to
prosecutorial misconduct under § 46-20-701(2), MCA. Accordingly,
we decline to address the alleged instances of prosecutorial
misconduct
3. Did the District Court abuse its discretion in
allowing the State to cross-examine a defense witness
with regard to whether that witness provided false
information in an unrelated criminal proceeding?
Martin's wife, Jan Martin (Jan), testified at trial on his
behalf. During cross-examination, the State inquired whether she
was an alibi witness for Kenneth Coddell (Coddell) in a 1983 felony
theft trial. Martin objected on relevancy grounds and the District
Court heard arguments out of the presence of the jury.
According to the State, Jan had perjured herself in Coddell's
felony theft trial in 1983 and subsequently was charged with
16
perjury. She pled guilty to the misdemeanor offense of unsworn
falsification to authorities. On that basis, the State argued that
the facts surrounding Jan's testimony as Coddell's alibi witness in
1983 were relevant to her credibility as a witness on Martin's
behalf
Martin relied on Rule 609, M.R.Evid., in support of his
argument that the State could not impeach Jan's credibility based
on the facts surrounding her providing false information on behalf
of Coddell in 1983. Rule 609 provides that "[flor the purpose of
attacking the credibility of a witness, evidence that the witness
has been convicted of a crime is not admissible." The State
responded that it was not offering evidence of Jan's conviction,
but that it was entitled to impeach Jan's credibility via "false
information" evidence under Rule 608(b), M.R.Evid., which provides:
Specific instances of the conduct of a witness, for the
purpose of attacking or supporting the witness'
credibility, may not be proved by extrinsic evidence.
They may, however, in the discretion of the court, if
probative of truthfulness or untruthfulness, be inquired
into on cross-examination of the witness (1) concerning
the witness' character for truthfulness or
untruthfulness.
The District Court ultimately agreed with the State, ruling that
[the State] cannot admit evidence that [Jan1 was
convicted of a crime. And [the State] can't ask her if
she was convicted of a crime. Under Rule 608(b), [the
State] may inquire about specific instances of conduct of
a witness that concerned the witness' character for
truthfulness or untruthfulness.
Martin argues on appeal that the District Court abused its
discretion by allowing the State to cross-examine Jan regarding
whether she supplied false alibi information on behalf of Coddell

17
in 1983. The admissibility of evidence is within the discretion of
the trial court and we review a trial court's determination of the
admissibility of evidence only for an abuse of discretion. State
v. Graves (1995), 272 Mont. 451, 458, 901 P.2d 549, 554; State v.
Henderson (1994), 265 Mont. 454, 459, 877 P.2d 1013, 1016.
Here, the District Court properly limited the State's cross-
examination of Jan regarding the false alibi information she had
provided on Coddell's behalf, allowing only questions relating to
Jan having provided false alibi information to authorities. That
evidence clearly was admissible pursuant to Rule 608(b), M.R.Evid.,
as probative of Jan's veracity as a witness.
Martin contends that State v. Gollehon (1993), 262 Mont. 1,
864 P.2d 249, renders evidence regarding Jan providing false alibi
information to authorities inadmissible under Rule 609, M.R.Evid.
Gollehon is distinguishable from the present case.
In Gollehon, Gollehon attempted to cross-examine William Arnot
(Arnot), a State witness, regarding thefts and burglaries he had
committed. Gollehon also attempted to admit extrinsic evidence in
this regard. Gollehon, 864 P.2d at 257-58. The district court
relied on Rules 608 and 609, M.R.Evid., in refusing to allow
Gollehon to cross-examine Arnot or present extrinsic evidence
concerning Arnot's prior acts of theft or burglary. Gollehon, 864
P.2d at 258.
Gollehon argued on appeal that the rules of evidence permit
him to introduce evidence of a witness' prior bad acts in order to
prove the witness' dishonesty. He contended that Arnot's prior

18
acts of theft and burglary demonstrate his "'habit of doing things
that impugned his ability to be credible and to tell the truth."'
Gollehon, 864 P.2d at 258.
We observed that adoption of Gollehon's reasoning would render
any criminal act admissible to disprove the veracity of a witness.
Agreeing that certain criminal acts indicate dishonesty--such as

suppression of evidence, false pretenses, cheating and
embezzlement--we declined to broaden that list to include theft and
burglary. See Gollehon, 864 P.2d at 259. With regard to Rule 609,
we stated that
Gollehon's thinly-veiled proposed questioning of Amot's
prior convictions without mentioning the word
"conviction" is not persuasive. Montana's Rule 609,
M.R.Evid., is unique; it specifically prohibits evidence
of a witness's prior convictions.
Gollehon, 864 P.2d at 259. We held that the district court had not
abused its discretion in refusing to allow Gollehon to introduce
evidence of this nature. Gollehon, 864 P.2d at 258-59.
Here, the State cross-examinedJan regarding false information
she provided to authorities on Coddell's behalf. Like the offenses
listed in Gollehon which indicate dishonesty--namely, forgery,
bribery, suppression of evidence, false pretenses and embezzlement-
-the misdemeanor offense of unsworn falsification to authorities is
an act which indicates dishonesty. Thus, unlike in Gollehon, the
facts surrounding Jan's providing false alibi information bear
directly on her truthfulness as a witness. Accordingly, Martin's
reliance on Gollehon is misplaced.

19
 Finally, Martin argues on appeal that evidence regarding the
1983 false alibi information was too remote to be admissible under
Rule 608(b), M.R.Evid. The record reflects, however, that Martin
did not raise this argument in the District Court. There, Martin
relied entirely on Rule 609, M.R.Evid., in arguing against the
admissibility of that evidence. "It is axiomatic that a party may
not change the theory on appeal from that advanced in the district
court." Henderson, 877 P.2d at 1016. Moreover, as already noted,
we will not consider arguments raised for the first time on appeal.
See Losson, 865 P.2d at 260.
We conclude that District Court properly limited the scope of
the State's cross-examination of Jan pursuant to Rules 608 and 609,
M.R.Evid. We hold, therefore, that the District Court did not
abuse its discretion in allowing the State to cross-examine Jan
regarding her providing false information on Coddell's behalf in
1983.
Affirmed.

We concur: