No. 90-550 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1991 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

LOREN ROBERT BAKER, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Dorothy McCarter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Dennis G. Loveless, Attorney at Law, Helena, Montana 

For Respondent: 

Honorable Marc Racicot, Attorney General, Helena, 

Montana; Patricia J. Jordan, Assistant Attorney 

General, Helena, Montana; Mike McGrath, Lewis and 

Clark County Attorney, Helena, Montana; Carolyn 

Clemens, Deputy County Attorney, Helena, Montana 

Submitted on Briefs: April 4, 1991 

Decided: July 26, 1991 

JU L. 2 6 -1991 

Ed Lit1 

CLERK OF SUPREME COURT 

STATE OF MONTANA 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

The defendant, Loren Robert Baker, was convicted by a jury in 

the First Judicial ~istrict, Lewis and Clark County, of robbery, 

reckless driving, and carrying a concealed weapon. He appeals from 

that verdict. We affirm. 

The issues raised on appeal are: 

1. id the trial court err when it allowed the State to offer 

testimony of prior crimes and alleged acts of the defendant? 

2. Did the trial court err when it limited the testimony of 

the defendant's expert witness? 

3. id the trial court err in permitting the reading of an 

~nformation of a previously charged offense? 

On the evening of December 9, 1989, Baker had several drinks 

at a local bar. Around midnight, when the bartender informed him 

he would be closing soon, Baker went to the liquor store, which was 

connected to the bar, and purchased a bottle of whiskey. Baker 

testified that he was on his way out the door when two patrons 

physically thrust him out the door, threw him on the ground, and 

began searching him. Baker testified that he hit his head when he 

was thrown to the ground. The patrons testified that they thought 

Baker was stealing an additional bottle of whiskey, and that the 

bartender thought so too. They grabbed Baker and tried to get the 

bottle away from him. 

Baker testified that he did not remember the following 

incidents to which one patron testified: Baker, while on the 
ground outside of the bar, pulled a .22 caliber pistol out of his 

belt or his fanny pack. One patron held Baker while the bartender 

took the gun away from him. When the patron let him up, Baker went 

to his car and retrieved another gun. The patrons and the 

bartender locked themselves in the bar and called the police. 

Baker shot through the door, striking a customer. He then drove 

away. 

A police officer testified that several police cars began 

following Baker with lights and sirens on. Baker went off the 

road. The police surrounded the car, Baker got out, the police 

retrieved a gun from the car, and Baker was taken into custody. 

Baker was charged with robbery (or in the alternative, 

criminal endangerment), reckless driving, and carrying a concealed 

weapon. Baker filed notices that he intended to rely on the 

defenses of justifiable use of force and mental disease or defect. 

The State filed notice that if Baker or his witnesses testified as 

to Baker's passive nature, it would introduce evidence of his 

previous incidents of violence against peace officers and other 

persons pursuant to State v. Just, 184 Mont. 262, 602 P.2d 957 

(1979) . The State filed a supplemental notice stating it would 

include an incident from January 1988 when Baker was caught 

stealing while intoxicated at a grocery store. 

At trial, Baker's aikido (a martial art) instructor testified 

that Baker had a good understanding of the nonviolent, 

nonaggressive nature of the aikido practice. The State 
cross-examined regarding his tendency toward passivity. Baker's 

clinical psychologist testified that Baker was a passive individual 

who avoided conflict and saw himself as a victim. The psychologist 

stated that Baker had informed him of three prior encounters with 

the legal system. On cross-examination, the State inquired into 

the psychologist's knowledge of Baker's prior acts of violence. 

Baker then testified as to his own version of the prior acts. The 

State produced testimony on rebuttal of those prior acts. Baker 

now contests the cross-examination of the aikido instructor and the 

State's testimony on rebuttal. 

Did the trial court err when it allowed the State to offer 

testimony of prior crimes and alleged acts of the defendant? 

After Baker's aikido instructor testified as to Baker's 

training, the State cross-examined as follows: 

Q. As I get your testimony, it is either expressed or 

by implication that Mr. Baker here is a gentle 

individual who is nonaggressive? 

A. That is correct. 

Q. Okay. And that is the idea you are trying to get 

across to the jury is this is a nonaggressive docile 

sort of guy who wouldn't do anything to hurt anybody 

unless it is absolutely necessary? 

A. That is correct. 

Baker did not object to this cross-examination at the time, 

but later objected that he had not brought out evidence of his 

nonaggressive nature on direct exam, so it was improper to do so 

on cross-examination. The court disagreed, finding that Baker had 
indeed put his character in issue. The State subsequently 

introducedtestimony on rebuttal of prior aggressive acts to refute 

the claim of nonaggressiveness, including incidents of being 

intoxicated and attempting to use weapons and attempting to steal. 

On appeal, Baker claims that the evidence relating to the prior 

aggressive acts is inadmissible because it does not conform to Rule 

404 (b) , M.R.Evid., and State v. Just, 184 Mont. 262, 602 P.2d 957 

(1979). However, we find Rule 404(a)(l), M.R.Evid., not Rule 

404(b), M.R.Evid., and Just, to be the applicable law. 

Rule 404(a) (I), M.~.~vid., permits character testimony on 

rebuttal if the opposing party has put character in issue. Rule 

404 (a) (I), M.R.Evid., states: 

(a) Character evidence generally. Evidence of a 

person's character or a trait of his character is not 

admissible for the purpose of proving that he acted in 

conformity therewith on a particular occasion, except: 

(1) Character of the accused. Evidence of a pertinent 

trait of his character offered by an accused, or by the 

prosecution to rebut the same. 

(Emphasis added). 

Baker's focus on Rule 404(b), M.R.Evid., and Just is 

misplaced. The purpose of the aikido instructor's testimony was 

to show Baker's propensity to behave in a certain manner, or in 

other words, to show a pertinent trait of his character. Character 

having been put in issue, it was properly rebutted by the 

prosecution under Rule 404(a)(l), M.R.Evid. 

Did the trial court err when it limited the testimony of the 

defendant's expert witness? 
Baker attempted to use a clinical psychologist to testify as 

to the symptoms a concussion could produce. The court restricted 

the psychologist's testimony to the actual mental condition of 

Baker, and did not permit him to testify as to the cause of it. 

The court found that the psychologist was not qualified to give an 

opinion regarding the relationship of a blow to the head to a 

disruption of mental faculties. Baker submits that this 

restriction deprived him of a fair trial. 

The determination that a witness is an expert is largely 

within the discretion of the trial judge and should not be 

overturned in the absence of an abuse of discretion. State v. 

Martin, 226 Mont. 463, 736 P.2d 477 (1987). The defense made no 

attempt to qualify the psychologist as a medical expert, so we find 

no abuse of discretion in the District Court's determination that 

a psychologist may not have the expertise to testify on a medical 

sub j ect . 

Did the District Court err in permitting the reading of an 

Information of a previously charged offense? 

On direct examination, Baker testified as to his version of 

a previous assault charge. On cross-examination, the State read 

the ~nformation relating to the charge in order to clarify a fact. 

Baker objected, presumably on relevancy grounds, but the court 

permitted it. Baker now argues that the reading denied him a fair 

trial by poisoning the minds of the jurors. 
Baker himself testified as to the incident on direct 

examination. The reading of the Information was, therefore, 

relevant and properly within the scope of cross-examination and did 

not prejudice Baker's case to the jury. 

Affirmed. 

We concur: