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: DennisG. Loveless,Attorneyat 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 

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# EdLit1 CLERKOFSUPREMECOURT STATEOF MONTANAJustice William 

### E. Hunt, Sr., delivered the opinion of the Court. Thedefendant, Loren Robert Baker,was convictedby a jury in the First Judicial ~istrict, Lewis and Clark County, of robbery, recklessdriving, and carryinga concealed weapon. Heappeals from that verdict. We affirm. The issues raised on appeal are: 1. id the trial court errwhen 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 ~nformationof 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 hewould be closing soon,Bakerwent 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 searchinghim. Baker testified thathe hit his head when he

was thrown to the ground. Thepatrons 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 theground outside of the bar, pulled a .22 caliber pistol out of his belt or his fannypack. One patron held Baker while thebartender took the gun away from him. When thepatron lethim up,Bakerwent 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 forceand 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 (amartial art) instructor testified that Baker had a good understanding of the nonviolent, nonaggressive nature of the aikido practice. The Statecross-examined regarding his tendency toward passivity. Baker's clinical psychologist testifiedthatBakerwas apassive individual who avoided conflictand sawhimself as avictim. Thepsychologist 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 ownversion of theprior acts. The State produced testimony on rebuttal of those prior acts. Baker

now contests the cross-examinationof theaikido instructorand 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 Iget your testimony, it is either expressed or by implication that Mr. Baker here is a gentle individualwho 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 anonaggressive docile sortof guywhowouldn't doanything tohurt 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 courtdisagreed, finding that Baker hadindeed put his character in issue. The State subsequently introducedtestimony onrebuttal of prior aggressiveacts torefute the claim of nonaggressiveness, including incidents of being intoxicated and attempting touse weapons and attempting to steal. On appeal, Baker claims that the evidence relating to the prior aggressive acts is inadmissible because itdoesnot conformtoRule 404(b)

## ,M.R.Evid., and Statev. 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. (Emphasisadded). 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 otherwords,to showa pertinent trait ofhis 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 thepsychologistwas 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 restrictiondeprived 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 thepsychologistasamedical expert, sowe find

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

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

# . 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 thescope of cross-examination and did not prejudice Baker's case to the jury. Affirmed.

We concur: