State v. Matt

No. 90-177
IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA,
plaintiff and Respondent, JUh' 2 6 1991
-vs-
ALLEN RAY "SPEEDY" MATT,
~efendantand Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Benjamin R. Anciaux, Polson, Montana

For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Patricia J. Jordan, Asst. Atty. General, Helena
Larry Nistler, County Attorney; Robert S. Anderson,
Deputy, Polson, Montana

Submitted on Briefs: April 12, 1991
Decided: June 26, 1991
Filed:
 '% 3.(

P

Justice Fred J. Weber delivered the Opinion of the Court.

Defendant, Allen Ray 'lSpeedytt
Matt, appeals from a conviction
for felony assault in violation of 1 45-5-202(2), MCA, following
a jury trial in District Court in the Twentieth Judicial District,
Lake County. We affirm.
We have revised the issues as follows:
1. Should this Court modify the Just Rule as established in

State v. Just (1979), 184 Mont. 262, 602 P.2d 957, with regard to
evidence of other crimes, wrongs or acts of the defendant?
2. Did the District Court err when it admitted testimony of
other crimes, wrongs or acts of the defendant?
3. Was the evidence sufficient to support a verdict of guilty
on the charge of felony assault?
On November 10, 1988, the defendant went to the Flathead
Irrigation Project office to try to get money for a windshield that
he claimed had been damaged by one of their trucks. When he failed
to get what he wanted, he threw a rock through an office window and
broke it.
Later that day a tribal officer went to defendant's house to
talk to him about breaking the window. The defendant became
verbally abusive, went into his house and refused to talk to the
officer. The officer continued to talk to the defendant through
defendant's door, telling defendant that he would have to get a
warrant if defendant continued to refuse to talk to him. Defendant
came back out of the house and an altercation occurred. The
officer then placed the defendant under arrest. The defendant
2
. . .I

continued to resist, both verbally and physically. During the
altercation, the officer sprayed the defendant in the face with his
cap-stun in an attempt to subdue him. The defendant wrestled away
from the officer and crawled back into his house.
The officer left the porch to call for backup. The defendant
came back out of the house swinging a long sickle-shaped knife and
yelling, 181111
kill you, you son of a bitch." The officer
approached defendant from the rear and attempted to disarm him.
A wrestling match ensued. The officer managed to knock the knife
away. When the officer got away and backed off, the defendant
grabbed a club-like stick. The officer put his hand on his gun,
which was still in its holster. Defendant yelled, "Go ahead, shoot
me", then went back into his house and out the back door. The
officer sustained injuries during the altercations.
A short time later, the defendant was arrested and put into
a police vehicle by other officers. Defendant repeatedly kicked
the door in the vehicle until he had to be removed from the vehicle
and subdued.
I
Should this Court modify the Just Rule as established in State
v. Just (1979), 184 Mont. 262, 602 P.2d 957, with regard to
evidence of other crimes, wrongs or acts of the defendant?
At trial the State introduced evidence that the defendant had
been involved three months earlier in an altercation with a deputy
sheriff in Okanogan County, Washington. The deputy sheriff
testified that he was on duty at a rodeo when the defendant entered
 'k 1
' I

the rodeo headquarters. Defendant had assaulted a woman and he was
still trying to attack his victim. The deputy had to physically
separate the defendant from his victim. The defendant pushed the
deputy in the chest to get him out of the way so he could get to
the victim. He shoved the deputy two more times during the
struggle. Another officer then took the victim to another room.
When the deputy had the defendant under control and sitting down,
the defendant jumped up and pushed the deputy again, attempting to
leave. The deputy had to grab the defendant and pull him down to
the floor to attempt to handcuff him. The defendant continued to
struggle. Eventually the deputy got the defendant into handcuffs
and arrested him. The deputy described him as "crazed.I1
Defendant contends the Washington incident was not similar to
the crime for which he was on trial and that there was no
connection between the events from which to infer a common scheme
or plan. Therefore defendant contends that the Just Rule was not
met. State v. Just (1979), 184 Mont. 262, 602 P.2d 957. The State
contends that the evidence of the Washington altercation was
relevant to show state of mind or intent of the defendant with
regard to the assaulting of police officers. The State contends
this was admissible under Rule 404(b), M.R.Evid.
In 1979, State v. Just established what has come to be called
the Just Rule. Just analyzed the exceptions to the general rule
of the incompetency of evidence of the commission of other crimes,
pointing out that the exceptions which are the rule in Montana are
of ancient lineage. Just then described the exceptions as set
forth in the 1973 case of State v. Taylor (1973), 163 Mont. 106,
515 P.2d 695. The exceptions were specifically recognized in a
number of cited Montana cases decided in the preceding 75 years,
reaching back to State v. Peres (1903), 27 Mont. 358, 71 P. 162.
Just next made reference to both Rules 404(b) and 403,
M.R.Evid. Because these are critical to the analysis, we now set
them forth in full:
Rule 404. Character evidence not admissible to
prove conduct, exceptions; other crimes; character in
issue.
...
(b) Other crimes, wrongs, acts. 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 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.

Rule 403. Exclusion of relevant evidence on grounds
of prejudice, confusion, or waste of time. Although
relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the
jury, or by consideration of undue delay, waste of time,
or needless presentation of cumulative evidence.
Just then states there emerged a four element rule to
determine the admissibility of evidence of other crimes, wrongs or
acts in criminal prosecutions. The four elements as stated in Just
were:
(1) The similarity of crimes or acts;

(2) Nearness in time;

(3) Tendency to establish a common scheme, plan or
system; and
(4) The probative value of the evidence is not
 substantially outweighed by the prejudice to
the defendant.
Just applied the rule to the facts of that case and concluded that
the evidence of the defendant's other acts against the victim in
question were properly admitted.
While the Just Rule was entirely appropriate to the factual
situation in that case, it has led to contradictory results. The
third element of the Just Rule provides that evidence may be
admissible for the purpose of showing a common scheme, plan or
system. We agree with that conclusion in that case. However, we
emphasize that Rule 404(b) is not limited only to common scheme,
plan or system. Rule 404(b) provides that evidence may be
admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. Clearly Rule 404(b) provides for
the admission of evidence for many purposes other than the common
scheme, plan or system stated in Just. We point out that the
"common scheme, plan or systemw referred to in Just is listed as
''planw under Rule 404(b), according to McCormick on Evidence, 3rd
Ed., 5190, pp. 558-564 (1984); 22 C. Wright and K. Graham, Federal
Practice and Procedure, Evidence, 5 5244, p. 499 (1978); and 23 CJS
Criminal Law S830 (1989).
While the four element rule of Just was proper under the facts
of that case, and also was appropriate under the facts of State v.
Jensen (1969), 153 Mont. 239, 455 P.2d 634, application of the Just
Rule has resulted in an apparent narrowing of the purposes listed
in Rule 404 (b). As an example, State v. Brown (1990), 791 P.2d
1384, 47 St.Rep. 935, applied the third element of the Just Rule
in reaching a conclusion that the prosecution failed to establish
a common scheme, plan or system. In Brown, the State argued that
the other crimes evidence was offered to prove defendant's motive
and intent. The court pointed out that the acts committed on
previous dates, while similar in nature, does not necessarily prove
that the acts tend to establish a common scheme, plan or system.
The majority then concluded that the record demonstrated that the
defendant's acts lacked any common scheme or plan and were instead
spontaneous acts dictated by his character and the situation at
hand. While it was true that the evidence in Brown failed to
establish a common scheme, plan or system, that conclusion did not
address the dissent which pointed out that the evidence could be
found admissible in order to establish the defendant's opportunity,
motive and intent under Rule 404(b).
We now recognize that the Just element described as common
scheme, plan or system is to be classed as a "plan1'under Rule
404 (b) . We further recognize that evidence of other crimes, wrongs
or acts may be admissible for many other purposes, including those
specifically listed in Rule 404(b), as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. We conclude that the rule as
enunciated in Just should now be modified.
We therefore now adopt the following as the Modified Just Rule
which 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,
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.
The Modified Just Rule incorporates the various purposes described
in Rule 404(b), and therefore eliminates the limitation that
evidence is admissible only if it shows a common scheme, plan or
system. In addition, the Modified Just Rule includes the
additional limiting factors which are set forth in Rule 403.
While the foregoing holding modifies the Just Rule, we do not
overrule the procedural protections required under Just. We do
clarify those protections however by specifically holding that the
following procedural protections shall apply as a 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 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.
I1
Did the District Court err when it admitted testimony of other
crimes, wrongs and acts of the defendant?
We now analyze the present case under the Modified Just Rule.
The Washington incident involved assaults on a Washington deputy
sheriff. The first occurred when the defendant attempted to get
to a woman assault victim. The second occurred after the assault
victim had been removed from the room and the defendant attempted
to leave the building. We conclude that the Washington incidents
were assaults on a peace officer and were similar in nature to the
assault on the tribal peace officer in the present case, and
therefore meet the requirements of element (1) of the Modified Just
Rule.
The assaults involved in the Washington case occurred three
months prior to the assault in the present case. We conclude that
such assaults were not remote in time and meet the requirements of
element (2) of the Modified Just Rule.
With regard to element (3) of the Modified Just Rule, the
Washington incidents were offered by the State to prove intent
which is a permissible purpose. In State v. Sadowski (1991), 805
P.2d 537, 543, 48 St.Rep. 93, 97, this Court analyzed many of the
problems which are relevant to proving intent under the Just Rule.
As in the present case, in sadowski the State presented one single
prior incident as proof of intent. With regard to a single
incident, as well as the question of intent, we stated:
We agree with the Johns court that no categorical
statement can be made one way or the other [in a case
where there is only one prior similar instance of
conduct], rather such decisions must be made on a case
by case basis. Johns, 725 P.2d at 324. "A simple
unremarkable single instance of prior conduct probably
will not qualify, but a complex act requiring several
steps, particularly premeditated, may well qua1ify.l'
Johns, 725 P.2d at 324.
Thus, the linchpin for determining whether a single
instance of prior conduct is sufficient to prove intent
is relevancy based on similarity. Here, because the
defendant admits that he purposely and knowingly killed
Rob Hare, the prior uncharged misconduct actually is
relevant towards the reasonableness of Sadowskilsclaim
of self defense, i.e., whether he acted with criminal
intent or in self defense.
Sadowski, 805 P.2d at 543, 48 St.Rep. at 97.
This Court then discussed the similarity of the acts and
reached the conclusion that the prior act was admissible as
relevant regarding Sadowskils intent. In Sadowski the defendant
argued that he intended to use the gun only in self defense while
the prosecution argued that it was an intentional act of homicide.
Sadowski is a good illustration of admission of other acts to prove
whether or not the intent involved was that of self defense or of
assault or homicide.
In the present case we do not have an issue of intent for
determination by the jury in a manner comparable to Sadowski. In
comparing the assault incidents in our present case, we note that
 a. .L

the primary focus of the initial assault on the Washington deputy
sheriff was aimed at getting the deputy out of the way in order
that the defendant could continue his assault on his female victim.
His second assault may still have involved his aim of getting to
the female victim or it may have involved his desire to get out of
the building and escape arrest. In the present case, the
triggering incident appears to have been the defendant's emotional
reaction which resulted in his breaking a window. The assaults
which followed were the result of an attempt by the officer to
discuss with defendant the breaking of the window. It is apparent
that the emotional condition which was present at the time the
defendant threw the rock continued to the meeting with the officer.
Our question then becomes whether the single instance of
conduct in Washington is admissible to prove intent in the present
case. The State argues that the Washington incident demonstrates
that the defendant acted with the intent to assault a peace officer
which increases the probability that the defendant acted with a
similar intent in the present case. Thus the prior assaults tend
to show that the defendant does not intend to submit to the
authority of peace officers.
We conclude that in the Washington incident the defendant's
intent was to get at his female assault victim. The deputy sheriff
just got in the way when he intervened. In the present incident
the intent was aimed directly at the officer. We conclude that
the intent to get at a female assault victim is not the same as the
intent to resist the authority of a police officer. We therefore
 I . . < a

conclude that the evidence should not have been admitted to prove
the defendant's intent.
Analyzing element (4) of the Modified Just Rule, we note that
the evidence was not needed to gain a conviction. The defendant
verbalized his intent when he waved the sickle-shaped knife and
yelled, "1'11 kill you, you son of a bitch." The Washington
incident was therefore a needless presentation of cumulative
evidence of intent. In addition, we conclude that the probative
value of the evidence is substantially outweighed by the possible
confusion of the issues and misleading of the jury.
Applying all four elements of the Modified Just Rule, we
conclude that the evidence here was not admissible in the present
case under elements (3) and (4) .
While we conclude that the admission of the evidence was
improper, we also conclude that the admission of such evidence does
not constitute grounds for reversal in this case. As analyzed in
the next part, the evidence against the defendant was overwhelming.
The admission of improper evidence is not grounds for reversal
unless there is a reasonable possibility that the evidence may have
contributed to the conviction. Brodniak v. State (1989), 239 Mont.
110, 779 P.2d 71. We hold that the admission of the other crimes
evidence was harmless error in this case.
I11
Was the evidence sufficient to support a verdict of guilty
on the charge of felony assault?
Defendant contends that the evidence is insufficient to
support the conviction because (1) there was no evidence to show
intent, (2) the officer's fear of injury was not reasonable, (3)
there was no evidence to show the defendant caused the officer's
injury, and (4) the officer committed a felony assault on the
defendant, who was defending himself.
A conviction will not be set aside if, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. State v. Krum (1989), 238
Mont. 359, 362, 777 P.2d 889, 891.
The elements of the crime of felony assault are defined in
§ 45-5-202(2), MCA, which reads:
A person commits the offense of felony assault if he
purposely or knowingly causes:
(a) bodily injury to another with a weapon; [or]
(b) reasonable apprehension of serious bodily
injury in another by use of a weapon[.] ...
The evidence showed that the defendant came out of his house
carrying a lethal weapon and confronted the officer. Waving the
sickle-shaped knife, he yelled, wItll kill you, you son of a
bitch.!! This evidence is sufficient to support a finding that the
defendant acted purposely or knowingly which satisfies the intent
element. The officer testified he sustained swelling and a
laceration of his left wrist, requiring him to wear a brace for six
weeks. The officer also testified that he thought he had "had itH
when defendant had him pinned to the ground while defendant had the
knife in his hand. The evidence is sufficient to support a finding
that there was bodily injury to the officer with a weapon; or
alternatively, that the officer had reasonable apprehension of
serious bodily injury by defendant's use of the knife.
The chain of events does not support defendant's contention
that he was merely defending himself. Defendant came out of his
house and confronted the officer twice. The officer acted
reasonably to effectuate a lawful arrest and defend himself.
The facts support the conclusion that any rational trier of
fact could have found beyond a reasonable doubt the essential
elements of the crime. We conclude the evidence was sufficient to
support the conviction of felony assault.
Affirmed.

,"
_-I b y us ice

Justices
Justice William E. Hunt, Sr., dissenting.
I dissent. Today the majority, in its modification of the
Just rule, is confusing the fundamental purpose of Rule 404(b) with
the more mechanical admissibility requirements of Just. The change
in our law leaves the accused with an almost insurmountable task
in excluding evidence of bad character. I dissented similarly in
State v. Sadowski, - P.2d , 48 St.Rep. 93 (1991). The

importance of maintaining the distinction between 404(b) and Just
cannot be over-emphasized.
Our criminal justice system is premised on the notion that the
accused are innocent until proven guilty. Rule 404(b) is a crucial
tool for the preservation of that premise. Rule 404(b)
unequivocally states that evidence of other crimes, wrongs, or acts
is not admissible as character evidence. The danger of prejudicing
a defendant by admission of such evidence constitutes, as Justice
Cardozo remarked, I1aperil to the innocent.I1 People v. Zackowitz,
254 N.Y. 192, 194, 172 N.D. 466, 467 (1930). We are therefore
charged, by the very foundation of our justice system, to closely
scrutinize any procedure which may imperil the rights of the
accused.
Rule 404 (b), therefore, requires a high degree of relevancy
in order to admit other crimes into evidence.
The rule is that the prosecution may not introduce
evidence of other criminal acts of the accused unless the
evidence is substantially relevant for some other purpose
than to show a probability that he committed the crime
on trial because he is a man of criminal character.
c . McComzick's Handbook of the Law of Evidence (2d ed. 1972) ,
~c~ormick,

reprinted in J. Kaplan & J. Waltz, Evidence--Cases and Materials 370

(5th ed. 1984) (emphasis added). The list of "other purpose^^^ in
Rule 404(b) sets out elements that may be necessary for the
prosecution~scase and that may, therefore, be relevant to prove
a fact in issue, such as intent, identity, or absence of mistake.
The presence of the list does not imply that anv evidence of prior
acts that tends to show anv purpose on the list is by definition
relevant. For example, if intent is not an issue, then evidence
of other bad acts that demonstrate intent is irrelevant and
therefore inadmissible.
The Just rule prescribes certain technical requirements for
admissibility. The act must be similar, near in time, tending to
establish a common scheme, plan, or system, and more probative than
prejudicial. The majority encounters a problem with the third Just
element. By seizing on the common scheme or plan element of Just
and finding that it looks like the "planu of 404(b), the majority
assumes they are the same thing. It then substitutes Rule 404(b)
for the common scheme element of Just, thus expanding the third
Just element beyond all meaning.
By replacing the narrow common scheme element of Just with
the 404(b) list, we have fallen into the trap warned about by
McCormick:
 And so here there is danger that if the judges, trial and
appellate, content themselves with merely determining
whether the particular evidence of other crimes does or
does not fit in one of the approved classes, they may
lose sight of the underlying policy of protecting the
accused against unfair prejudice. The policy may
evaporate through the interstices of the classification.
Reprinted in Evidence--Cases and Materials at 3 7 5 .
The policy of protecting the accused against unfair prejudice
is sadly evaporating in the State of Montana. The majority admits
that evaporation by stating that it is "eliminating the limitation
that evidence is admissible only if it shows a common scheme, plan
or system.t1 As I stated in Sadowski, we may as well just come out
and say that other acts are admissible. Today, over the federal
rule, state rule, and caveats of scholars, we have seen fit to
further erode the presumption of innocence and, indeed, "imperil
the innocent.If
I agree with the majority that the evidence is not admissible
in this case, but do not agree that it was harmless error.
I would reverse.