NO. 87-521 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsFAYE E. SLICE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas G. Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Larry D. Mansch, Public Defender, Missoula, Montana 

For Respondent: 

Honorable Mike Greely, Attorney General, Helena, Montana 

Dorothy McCarter, Assistant Attorney General 

Robert L. Deschamps, 111, County Attorney, Missoula 

Montana 

Filed: 

Submitted on Briefs: March 3, 1988 

Decided: April 28, 1988 

*# 

Clerk 
Justice John C. Harrison delivered the Opinion of the Court. 

The defendant, Faye E. Slice, was tried on sixteen 

criminal counts: three counts of issuing a bad check, 

§ 45-6-316, MCA (felonies); one count of forgery, § 45-6-325, 

MCA (felony); eight counts of deceptive practices § 45-6-317, 

MCA (felonies); two counts of felony theft S 45-6-301, MCA; 

one count of misdemeanor theft 5 45-6-301, MCA; and one 

additional count of deceptive practices or in the alternative 

felony theft. Defendant Slice made a motion on March 13, 

1987, to sever the charges filed against her pursuant to 

5 46-11-404, MCA, and the motion was denied April 13, 1987. 

A jury trial was held starting May 14, 1987 in Missoula 

County, before the Honorable Douglas G. Harkin. Slice was 

found not guilty of two counts of deceptive practices and 

found guilty on the remaining fourteen counts. Taking into 

account concurrent sentences, Slice was sentenced to a total 

of forty years imprisonment in the Montana State Prison with 

thirty-five years suspended. Slice appeals and we affirm the 

decision of the District Court. 

The sole issue raised on appeal is whether the trial 

judge erred in denying defendant's motion to sever the 

charges filed against her pursuant to S 46-11-404, MCA. 

Secti.on 46-11-404, MCA states, in pertinent part: 

(2) The court in which the case is 

triable, in the interests of justice and 

for good cause shown, may, in its 

discretion, order that the different 

offenses or counts set forth in the 

indictment, information, or complaint be 

tried separately or divided into two or 

more groups and each of the groups tried 

separately. An acquittal of one or more 

counts shall not be considered an 

acquittal of any other count. 
(4) If it appears that a defendant or 

the state is prejudiced by a joinder of 

related prosecutions or defendants in a 

single charge or by joinder of separate 

charges or defendants for trial, the 

court may order separate trials, grant a 

severance of defendants, or provide any 

other relief as justice may require. 

Slice argues there are three reasons why the charges 

should have been severed and separate trials granted. First, 

Slice contends that the amount of evidence presented had a 

cumulative effect convincing the jury she was a "bad person." 

Second, Slice contends that many of the crimes were unrelated 

and that much of the evidence presented would not have been 

admissible if the charges had been severed into related 

groupings and a separate trial held for each grouping. 

Finally, Slice states she desired to testify as to some, but 

not all, of the charges. Since the charges were all joined, 

Slice did not have the option of testifying as to only some 

of the charged offenses. 

Slice relies on State v. Campbell (198O), 189 Mont. 

107, 120, 615 P.2d 190, 198, in which we recognized three 

potential types of prejudice that could result from the 

joinder of offenses. Generally, these three types of 

potential prejudice are reflected in Slice's contentions 

which are cited above. In Campbell, we cited and relied upon 

State v. Orsborn (1976), 170 Mont. 480, 489, 555 P.2d 509, 

514, 515, where we stated: 

First, the jury may consider [a] 

defendant who is subject to the multiple 

charges to be a bad man. The prejudice 

claimed is that the jury may tend to 

accumulate evidence against him until it 

finds him guilty of something. However, 

our examination of federal cases reveals 

that such a claim of prejudice rarely has 
been found sufficient to provide relief. 

(Citations omitted.) . . . 

Second, proof of guilt of one offense may 

be used to convict the defendant of 

another offense even though such proof 

may be inadmissible at a separate trial. 

However, where, as here, the alleged fact 

of the separate offenses was sufficiently 

distinct to allow the jurors to keep them 

separate in their minds, no prejudice 

will be found. (Citations omitted.) 

Third, prejudice may result where the 

defendant wishes to testify on his own 

behalf on one charge but not on the 

other. But we note federal courts have 

only considered such a claim of prejudice 

where the alleged offenses were totally 

separate as to time, place and evidence. 

(Citation omitted.) 

It is within the sound discretion of the trial judge to 

balance the prejudicial effects of joinder against the 

benefits of judic'ial economy realized from a joint trial. 

Absent an abuse of that discretion, we will not reverse the 

District Court decision. "In striking the balance between 

prejudice to a defendant and judicial economy, considerations 

of judicial economy exert strong pressure in favor of joint 

trials." Campbell, 189 Mont. at 121, 615 P.2d at 198. The 

defendant holds the burden of demonstrating prejudice. As we 

stated in Campbell: 

In showing prejudice, it is not 

sufficient that the defendant prove some 

prejudice or that a better chance of 

acquittal exists if separate trials are 

held. Rather, the defendant must show 

the prejudice was so great as to prevent 

a fair trial. (Citations omitted.) 

Given this high standard of proof and the 

deference afforded to the discretion of 

the trial court's judgment on balancing 

prejudice against judicial economy, 

reversal of a decision not to sever 
criminal charges is seldom granted. 

(Citations omitted.) 

189 Mont. at 121, 615 P.2d at 198. 

First, we will consider whether the charges had a 

cumulative effect which prejudiced defendant and resulted in 

an unfair trial. This is rarely a sufficient reason to 

justify severance. State v. Bingman (Mont. 1987), 745 P.2d 

342, 348, 44 St.Rep. 1813, 1819. Defendant offers little 

evidence to achieve her burden of proof and basically relies 

on the bald assertion that sixteen criminal counts would 

simply cause the jury to view her as a "bad person." We will 

not reverse the District Court decision on this unsupported 

allegation. Furthermore, we note that the jury acquitted 

Slice on two charges. Although it is difficult to infer any 

facts from this outcome, it indicates that the jury 

considered each charge separately. 

Defendant Slice also claims that evidence on certain 

counts assisted in obtaining a conviction on unrelated 

charges. If she had obtained separate trials, she contends 

much of this sort of evidence would have been inadmissible. 

We stated in Orsborn that no prejudice will be found if "the 

alleged fact [s] of the separate offenses [are] sufficiently 

distinct to allow the jurors to keep them separate in their 

minds." Orsborn, 170 Mont. at 489, 555 P.2d at 515. 

Counsel for Slice describes the sixteen criminal- counts 

as follows: 

Count I: Issuing a Bad Check, Felony. 

The Defendant was charged with writing 

checks to Mike Judd/Diamond Hitch 

Outfitters, in excess of $300.00, knowing 

that the checks would not be honored by 

the Montana Bank of South Missoula. The 

checks were written between June 15 and 

June 1.6, 1986. 
Count 11: Issuing a Bad Check, Felony. 

The Defendant was charged with writing 

checks to Mike Judd and to Service 

Typesetting, knowing that the checks 

would not be honored by the Montana Bank 

of South Missoula. The checks were 

written between July 15 and August 15, 

1986. 

Count 111: Forgery, Felony. 

The Defendant was charged with 

fraudulently delivering a signature card 

to the First Federal Savings and Loan 

Association on August 27, 1986. 

Additionally, the Defendant was charged 

with fraudulently delivering a falsified 

accountant statement to a member of a 

Missoula fund raising organization, on 

September 16, 1986. 

Count IV: Bad Check, Felony. 

The Defendant was charged with issuing 

checks to a number of Missoula 

businesses, knowing that the checks would 

not be honored by the First Federal 

Savings and Loan. The checks were 

written between August 28 and September 

16, 1986. 

Count V: Deceptive Practices. 

The Defendant was charged with making a 

false statement regarding her financial 

situation to the Montana Bank of South 

Missoula, between July 19 and September 

9, 1986. 

Count VI: Deceptive Practices: 

The Defendant was charged with making 

false statements to the public that she 

and her business, Reflections 

Photography, were selling calendars on 

behalf of a local charity (Heather 

McChesney or the Heather McChesney Fund), 

when all or most of the proceeds were 
directed to another use. This alleged 

offense occurred between July 16 and 

September 16, 1986. 

Count VII: Deceptive Practices. 

The Defendant was charged with making 

false or deceptive statements to numerous 

Missoula businesses, that advertising 

money would cover printing costs for 

calendars to be sold as a fund raiser for 

the March of Dimes, when all or most of 

the money was directed to another use. 

This alleged offense occurred between 

March 12 and July 18, 1986. 

Count VIII: Deceptive Practices. 

The Defendant was charged with making 

false statements to various Missoula 

businesses, that she would use money paid 

by them to organize a "Fall Wedding 

Spectacular", when all the money was 

directed to another use. This alleged 

offense occurred between June 1 and 

September 16, 1986. 

Count IX: Deceptive Practices. 

The Defendant was charged with making 

false statements to several Missoula 

businesses that she would use money paid 

by them as rent money for a Missoula 

business building, when the money was 

converted to another use. This alleged 

offense occurred between August 24 and 

September 16, 1986. 

Count X: Deceptive Practices. 

The Defendant was charged with making a 

false statement regarding her financial 

situation to Bitterroot Motors, for the 

purpose of securing a loan to purchase an 

automobile. This alleged offense 

occurred on September 8, 1986. 
Count XI: Deceptive Practices. 

The Defendant was charged with promising 

to hire two individuals as photography 

instructors for wilderness photography 

classes, when only one class occurred and 

neither person was paid as promised. 

This alleged offense occurred in April, 

1986. 

Count XII: Deceptive Practices. 

The Defendant was charged with falsely 

promising to pay two individuals a 

percentage of amounts collected for the 

Heather McChesney Fund, when the funds 

were diverted to another use. This 

alleged offense occurred between July 31 

and September 16, 1986. 

Count XIII: Theft, Felony. 

The Defendant was charged with exerting 

unauthorized control over a check owned 

by the Heather McChesney Fund, between 

August 19 and 24, 1986. 

Count XIV: Theft, Misdemeanor. 

The Defendant was charged with exerting 

unauthorized control over a $40.00 

wedding deposit check, on September 11, 

1986. 

Count XV: Alternative Deceptive 

Practices or Theft. 

The Defendant was charged with defrauding 

the public by obtaining March of Dimes 

contributions and converting them to her 

own use, or in the alternative exerting 

unauthorized control over March of Dimes 

contributions. 

Count XVI: Theft, Felony. 

The Defendant was charged with exerting 

unauthorized control over unemployment 
benefits, between January 11 and July 3, 

1986. 

Slice fails to specifically state what evidence would have 

been inadmissible if separate trials had been granted and 

fails to demonstrate or explain why she received an unfair 

trial on these charges. Although this is a long list of 

offenses, we do not find that presenting evidence on all 

sixteen counts would necessarily create an unfair trial. 

Additionally, we note that if there had been several separate 

trials, much of the evidence regarding all the charges would 

have probably been admissible in each trial under the 

considerations of State v. Just (1979), 184 Mont. 262, 602 

P.2d 957. The alleged offenses tend to be similar in that 

they involve deceitful actions regarding Slice's business and 

banking actions. The offenses occurred over no more than a 

nine month time span, with the bulk of the activity occurring 

in a much shorter period. The offenses tend to establish a 

common scheme or plan to gain financial benefits through 

deceit. Finally, the probative value of the evidence is 

quite high, while Slice fails to demonstrate any significant 

prejudice. We find no abuse of discretion by the District 

Court. 

Slice also contends she was prejudiced because she 

wished to testify as to some offenses but not others. In 

Orsborn we indicated this type of claim might have some merit 

if "the alleged offenses were totally separate as to time, 

place and evidence." Orsborn, 170 Mont. at 489, 555 P.2d at 

515. As noted above, the facts of this case do not deal with 

offenses which are totally separate as to time, place, and 

evidence. 

Finally, Slice claims that the sheer volume of evidence 

involved in all of the counts confused the jury. Slice does 

not demonstrate any specific reason why she believes the jury 
was confused. According to the record before us, the actual 

trial process appears to have lasted slightly over two weeks. 

We see no inherent reason why the jury would be confused and 

defendant has failed to carry her burden of demonstrating 

confusion resulting in an unfair trial. 

For all of the foregoing reasons, the decision of the 

District Court is affirmed.