State v. Wells , 49 State Rptr. 175 ( 1992 )

NO. 90-565
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
STATE OF MONTANA, Plaintiff & Respondent,
GLORIA WELLS, Defendant & Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Peter L . Rapkoch, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Torger S. Oaas, Lewistown, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, Helena, Montana
Patricia J. Jordan, Assistant
Tom Meissner, Fergus County Attorney, Lewistown,
Submitted on Briefs: December 12, 1991
Justice Fred J. Weber delivered the Opinion of the Court.
Defendant, Gloria Wells, appeals from her conviction of felony
theft and misdemeanor theft after a bench trial in the District
Court for the Tenth Judicial District, Fergus County. We reverse.
The sole issue for our review is whether the District Court
erred in admitting evidence of other crimes, wrongs, or acts of the
defendant.
Our summary of facts is taken from the extensive findings of
fact on the part of the District Court. The defendant, Gloria
Wells, and Debra McNamee (Debra), were friends and visited each
other frequently from 1986 to September 1988. During June of 1988,
Debra attempted to sell her diamond and ruby wedding ring from a
previous marriage. Sometime in June, Debra authorized defendant to
take the ring with her to Billings to try and sell it there. The
next day, defendant returned the ring to Debra who then put it in
her jewelry box for safe keeping. Some time after that, Debra
looked for the ring and found it missing. Debra was the only
person with authority to remove the ring from the jewelry box.
In July of 1988, while traveling, Debra saw the defendant in
Billings and noticed defendant was wearing her ring. When Debra
returned home to Lewistown she found her house in a state of
disarray with various items missing.
Debra later saw defendant in a Lewistown bar and demanded the
immediate return of all the items from her house. The items were
not returned and on August 19, 1988, Debra reported the theft of
various items from her home, including the ring and some missing
checks, to the Lewistown Police Department. Later that same day,
defendant was arrested in Billings for Felony Forgery Conspiracy
for trying to pass a forged check in the amount of $1,700 drawn on
the account of "Anna Duffyv.
While defendant was being held on the charges in Yellowstone
County the Billings Police Department removed Debra's diamond and
ruby wedding ring from defendant's hand and also found in
defendant's purse a series of checks belonging to Debra of which
several had been removed.
While defendant testified that she had Debra's permission to
have both the ring and the check blanks, she pled guilty to the
offense of misdemeanor theft for unauthorized control over the
checks belonging to Debra.
The District Court concluded that the defendant purposely and
knowingly exerted unauthorized control over the wedding ring owned
by Debra and purposely and knowingly exercised unauthorized control
over the checks owned by Debra. Defendant appeals from the court Is
determination that she was guilty of Count I Felony Theft and Count
I1 Misdemeanor Theft.
Did the District Court err in admitting evidence of other
crimes, wrongs, or acts of the defendant?
The day before trial the State filed a Just Notice with the
court which read:
Please be notified that the State of Montana will
introduce evidence of other crimes, wrongs or acts
specifically thefts, attempts of theft and forgery to
show proof of motive on the part of the Defendant in this
action to obtain money illegally during the summer of
1988.
The evidence introduced included testimony by Debra that defendant
was "into heavy drugs8I, glinvolvedwith stealingtt,and had once
pointed a gun at Debra. At trial, defendant objected to such
testimony and a continuing objection was noted by the District
Court.
Defendant contends that the notice was insufficient because it
failed to specify when the other crimes, wrongs or acts occurred
and did not give her sufficient information to prepare a defense.
Defendant further maintains that the evidence introduced that
defendant had stolen other items from Debra was inadmissible
because such allegations referred to crimes subsequent to the crime
for which defendant was on trial. Defendant contends that evidence
of subsequent acts is not admissible.
The State maintains that the evidence that defendant was "into
heavy drugsw was introduced to show motive to obtain money
illegally. The Statelstheory at trial was that the defendant had
a motive of illegally obtaining money during the summer of 1988 to
support her drug use. The State maintains that the gun incident
was introduced to show the state of mind of the victim, i.e., fear
of defendant, not to show that the defendant acted in conformity
therewith.
However, the State concedes that specific notice was not given
that the State intended to introduce evidence of defendant's drug
use or the incident where the gun was pointed at the victim. The
State claims that any prejudice to the defendant was minimized by
the cross-examination of the victim, wherein the victim stated that
she had used drugs with the defendant. Finally, the State contends
that in a bench trial, the dangers of improper use of other crimes
evidence are minimal.
Under the Modified Just Rule, the other crimes, wrongs or
acts must be similar. State v. Matt (Mont. 1991), 814 P.2d 52, 56,
48 St.Rep. 614, 616; Rules 404(b) and 403, M.R.Evid. The Modified
Just Rule provides:
(1) The other crimes, wronss or acts must be similar.
(2) The other crimes, wrongs or acts must not be remote
in time.
( 3 ) The evidence of other crimes, wronss 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.
[Emphasis added.]
Paragraph (1) of the Modified Just Rule provides that the
other crimes, wrongs or acts must be similar. We conclude there is
no similarity between the alleged drug usage and the gun incident
and the crimes of theft with which the defendant was charged. We
hold that the State's introduction of the evidence of defendant's
alleged drug use and the gun incident constituted reversible error,
even in a bench trial.
For assistance on retrial we have further comments with regard
to the Modified Just Rule. The notice required by the prosecution
to the defendant under the Modified Just Rule provides:
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, wronqs or acts to be acts to be admitted,
and the specific Rule 404(b) purpose or purposes for
which it is to be admitted. [Emphasis added.]
State v. Matt, 814 P.2d at 56. The notice given in the present
case with regard to other thefts stated that evidence of !!other
thefts, attempts of thefts, and forgery would be offered to show
proof of motive.I1 Such notice is inadequate to give the
specificity of the evidence of other crimes, wrongs or acts to be
produced. These must be identified in such a manner that the
defendant may identify the specific incidents upon which evidence
is to be admitted. As an example here, the notice properly could
have referred to the items taken from Debra's home.
As indicated, the notice stated that the evidence would be
offered to show proof of motive. 22. C. Wright & K. Graham,
Federal Practice and Procedure, § 5240, makes the following general
observation with regard to motive:
Evidence of motive may be offered to prove that the act
was committed, or to prove the identity of the actor, or
to prove the requisite mental state. It is important to
determine which of the ultimate issues is to be proved by
motive because the relevance of the evidence and its
admissibility may not be the same on one issue as on
another.
Graham, Volume 22, page 480. Wrisht & Graham discusses at length
the basis for admission of evidence to prove motive, intent, and
absence of mistake, any one of which might be appropriate in the
present case depending upon the nature of the evidence submitted on
retrial.
We emphasize that in analyzing the admissibility, the trial
court should follow all of the steps set forth in the Modified Just
Rule.
The State also introduced evidence showing that the defendant
was involved in a conspiracy to commit forgery on the bank account
of Anna Duffy. Detective Cummings testified that defendant was
detained to determine her involvement in the forgery of the $1,700
Anna Duffy check; and further testified that defendant was arrested
for conspiracy to commit forgery. As we analyze that evidence
under the Modified Just Rule, we conclude that the proof of
involvement in the Anna Duffy forgery does not demonstrate the type
of proof of motive which is admissible under the Modified Just
Rule. This is the type of evidence which is not admissible because
its purpose apparently was to demonstrate that because defendant
was involved in other similar crimes, she would have been involved
here. That is prohibited under the first portion of paragraph (3)
of the Modified Just Rule which states that evidence of other
crimes is not admissible to prove the character of the person in
order to show that she acted in conformity with that character.
Unless other evidence is submitted establishing a relationship not
in the present record, we point out that the evidence with regard
to the Anna Duffy check would not be admissible under the Modified
Just Rule.
We reverse on the admission of evidence of the drug usage and
the qun incident and remand to the District Court.
We Concur:
Justice R. C. McDonough specially concurs as follows:
I concur with the foregoing majority opinion. In addition,
the introduction of evidence that the defendant was Itinto heavy
drugsn as proof of a motive, violates subdivision (4) of the
Modified Just Rule. Such evidence, even if relevant, should be
excluded under these facts. The probative value of the evidence is
outweighed by unfair prejudice to the defendant.
,