NO. 94-409

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Respondent,

AMG 0 4 1995

v.

RALPH OWEN WELDY,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,

In and for the County of Gallatin,

The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Alfred Avignone, Ungar, Avignone & Banick,

Bozeman, Montana

Daniel P. Buckley, Berg, Lilly, Andriolo

& Tollefsen, Bozeman, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Barbara C. Harris, Assistant Attorney

General, Helena, Montana

Mike Salvagni, Gallatin County Attorney,

Gary Balaz, Deputy County Attorney,

Bozeman, Montana

Filed:

Submitted on Briefs: April 6, 1995

Decided: August 4, 1995
Justice William E. Hunt, Sr., delivered the opinion of the Court.

Appellant Ralph Owen Weldy appeals from the sentence and final

judgment entered in the Eighteenth Judicial District court,

Gallatin County, finding him guilty of felony assault and

misdemeanor domestic abuse, and sentencing him to consecutive terms

of ten years for felony assault, two years for use of a weapon, and

six months for domestic abuse, all to run concurrently. The

District Court designated appellant a dangerous offender for the

purpose of parole eligibility.

We reverse and remand.

Appellant raises six issues on appeal. However, we limit our

decision to the following:

1 . Did the District Court err in allowing testimony of prior

assaults by appellant against Cynthia Weldy?

2 . Did the District Court properly instruct the jury as to

the unanimity of its verdict?

Appellant and Cynthia Weldy were married on May 1, 1993, and

divorced on December 1, 1993. On July 9, 1993, appellant visited

Cynthia at the Lucky Cuss, her place of employment, where he

observed Cynthia speaking with three men whom he believed were

arranging to meet Cynthia after work. When Cynthia arrived home

after work she discovered that appellant was agitated and had been

drinking alcohol.

Appellant began striking Cynthia on the chin, the face, and

her arms. While Cynthia was seated in a kitchen chair with her

2
back to a wall, appellant began plunging a 12-inch serrated knife

into the wall beside her head.

Throughout the night and into the next morning, appellant

continued assaulting Cynthia. At one point, he broke a drinking

glass and threatened Cynthia with the jagged glass bottom. At

another point in the early morning, appellant struck Cynthia on the

head, shoulder, ribs, and hand with a piece of firewood.

After appellant went to bed at 7 a.m., Cynthia left home and

reported to her second job at the Friendly Cafe. At 8:45 a.m.,

appellant walked into the Friendly Cafe and struck Cynthia in the

back and side of her head while she was carrying a pot of coffee.

Appellant left and later returned to the Friendly Cafe where he

pulled Cynthia out the rear door of the cafe and renewed his

assault.

On January 25, 1994, the Gallatin County Attorney charged

appellant by amended information with one count of felony assault

under 5 45-5-202(2) (a) or (b), MCA, and one count of misdemeanor

domestic abuse under 5 45-5-206(l) (a), MCA. Appellant was tried by

a jury and convicted of felony assault and domestic abuse. The

District Court sentenced appellant to consecutive terms of ten

years for felony assault and two years for the use of a weapon. In

addition, the District Court sentenced appellant to a concurrent

term of six months for domestic abuse, and designated appellant a

dangerous offender for the purpose of parole eligibility. The

District Court denied appellant's motion for a new trial.

Appellant appeals the judgment and sentence of the District Court.

3
ISSUE 1

Did the District Court err in allowing testimony of prior

assaults by appellant against Cynthia Weldy?

We review evidentiary rulings by a district court to determine

whether the district court abused its discretion. State v. Parma

(1993) I 261 Mont. 338, 341, 863 P.2d 378, 380; State v. Crist

(19921, 253 Mont. 442, 445, 883 P.2d 1052, 1054. The district

court has broad discretion to determine whether evidence is

relevant and admissible, and absent a showing of abuse of

discretion, the district court's determination will not be

overturned. Parma, 863 P.2d at 380; Crist - I 833 P.2d at 1054.

The charges brought against appellant involve events which

occurred on July 9 and 10, 1993. At trial, the State introduced,

and the District Court admitted, testimony of prior assaults

committed by appellant against Cynthia between May 3 and July 9,

1993. Appellant argues that testimony of prior assaults was

introduced to show his character and his propensity to act in

conformity therewith in an effort to prejudice the jury. Appellant

contends that the prior acts should have been excluded pursuant to

Rules 404(b) and 403, M.R.Evid, and State v. Matt (1994), 249 Mont.

136, 814 P.2d 52.

The admissibility of prior acts evidence is controlled by

Rule 404(b), M.R.Evid., which provides that: II Eelvidence of other

crimes, wrongs, or acts is not admissible to prove the character of

a person in order to show action in conformity therewith." The

general rule of Rule 404(b) must be strictly enforced, except where

4
a departure is clearly justified, and exceptions to the rule must

be carefully limited. State v. Keys (1993), 258 Mont. 311, 315,

852 P.2d 621, 623; Crist, 833 P.2d at 1054.

In Matt - I we modified the rule established in State v. Just

(1979), 184 Mont. 262, 602 P.2d 957, and set forth a four-part test

to insure that prior acts evidence is not introduced as character

evidence. The modified just rule requires that:

(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.

Matt - I 814 P.2d at 56. The following procedural protections apply

as 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 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 the evidence and shall admonish it to consider

the evidence for only such purposes.

5
(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 . . .

- I Matt 814 P.2d at 56.

On March 1, 1994, the State provided appellant with Just

notice stating that it would offer evidence that appellant

assaulted Cynthia on May 3, 1993, and that appellant told Cynthia

that "I killed my first wife, what do you think of that." The

State asserted that it planned to offer appellant's physical

conduct and his statement as proof of motive and intent. The

District Court prevented either party from offering appellant's

statement about killing his first wife, but allowed Cynthia to

testify about prior assaults committed against her by appellant.

We must determine whether the alleged prior assaults were

admissible under the modified just requirements to prove that on

May 9 and 10, 1993, appellant committed felony assault against

Cynthia by knowingly or purposely causing bodily injury to Cynthia

with a weapon, or by knowingly or purposely causing Cynthia to

reasonably apprehend serious bodily injury by use of a weapon.

Section 45-5-202(a) or (b), MCA.

Appellant does not dispute that the alleged prior bad acts

were sufficiently near in time to the charged act to satisfy the

second modified Just criteria. However, upon review of the record,

we conclude that this is the only requirement of the modified Just

rule which is satisfied.

6
The State argues that the firs t m~odified Just requirement is

fulfilled because the acts committed by appellant between May 1993

and July 1993, and the charged acts, were similar. We have

consistently held that the prior acts dc not have to be identical

to the charged conduct, only sufficiently similar. State v. Tecca

(1986), 220 Mont. 168, 172, 714 2.2d 136, 138. See also State v.

Brooks (1993), 260 Mont. ~79, 857 l.%d 734; State v. McKnight

(1991), 250 Mont. 457, 820 B.%d 1279; State v. Sadowski (19911, 247

Mont. 63, 805 P.2d 537; State v. Gambrel (IPPOj, 246 Mont. 84, 803

P.2d 1071; State v. Eiler (1988!, 234 Mont. 38, 762 P.2d 210; State

v. Long (1986!, 223 Mont. 502, 726 P.2d 1364. There is no rigid

rule for determining when conduct is sufficiently similar, rather,

the determination of sini:.arity do-per. ds on whether that conduct has

some relevance to prove an Fssu+ in ?.?..snu;:e. &s; 852 P.2d at

623.

The issue in dispute here is whether appellant used a weapon

to cause bodily injury or reasonable apprehension of serious bodily

injury in Cynthia. Cynthia testified that commencing with the

honeymoon, her husband's attacks were progressively more .violent

and that appellant threatened to kill her on at least two

occasions. Given that appe!.lant~ denied using a weapon in the

assault on his wife, the evidence that he had previously, regularly

beat her in a progressively more vi.olent manner tended to prove

that his last assault had gone beyor:d merely slapping her "a few

times” as he conceded, but had escalated, as the State maintained,
to his use of a weapon to injure her or to produce reasonable

apprehension of serious bodily injury.

Accordingly, under our prior case law, while the prior

assaults in this case were not identical to the charged assaults,

they were sufficiently similar for Rule 404(b) purposes in that

they were relevant to prove the issue in dispute.

The State next argues that the third modified Just requirement

is satisfied because evidence of the other acts of assault against

Cynthia is relevant to show appellant's intent and motive in

committing the charged offense. While motive and intent are

allowable purposes for admitting prior acts evidence, "merely

reciting an allowable purpose is not sufficient if the evidence

does not further that purpose or that purpose is not an issue in

dispute." Keys, 852 P.2d at 625.

In its reply to appellant's motion in limine to exclude

evidence of prior acts, the State argued that "the prior beatings

are explanatory of [appellant's] mental state at the time he

committed the crimes charged. . . The prior beatings are

explanatory of what [appellant] thought when he committed the

crimes charged, and they are explanatory of what [appellant] wanted

Cynthia to think . . when she was being beaten . on July 9

and July 10, 1993." The State's argument is conclusory, and it

fails to demonstrate how the appellant's prior acts show his motive

for or intent to commit felony assault. We stated in Sadowski,

that to be admissible as relevant to show motive or intent, the

commission of the first crime or act should give rise to a motive

8
or reason for the defendant to commit the second crime. Sadowski,

805 P.2d at 537. Keeping in mind that appellant admitted

assaulting Cynthia, but denied use of a weapon (that being the only

issue), there was simply nothing in the history of the prior

assaults (none of which involved the use of a weapon) that would

give rise to a motive or reason for appellant to use a weapon

during the charged assault. If anything, the contrary is true.

The purposes for which the State contends the prior acts are being

offered are not relevant to the issue of whether appellant

assaulted Cynthia with a weapon, or whether he caused her to

reasonably apprehend bodily injury from the use of a weapon.

Again, the only purpose for this evidence is to imply that

appellant acted in conformity with his prior bad acts. Rule

404(b), M.R.Evid., specifically prohibits such evidence.

Accordingly, since part 3 of the four-part Just/Matt test is

not satisfied, the other crimes evidence should not have been

admitted.

We hold that the District Court abused its discretion in

allowing testimony of prior assaults by appellant against Cynthia.

ISSUE 2

Did the District Court properly instruct the jury as to the

unanimity of its verdict?

It is within the district court's discretion to decide how to

instruct the jury, taking into account the theories of the

contending parties, and we will not overturn the district court

except for abuse of discretion. Contreras v. Vannoy Heating & Air

9
Conditioning (Mont. 19951, 892 P.2d 557, 558, 52 St. Rep. 246, 248.

A jury must reach a unanimous verdict in a criminal trial.

Mont. Const. art. II, § 26. The State argues that this Court has

consistently held that once the jury has been instructed that it

must reach a unanimous verdict, the district court is not required

to repeat this instruction for every alternative charge, provided

that substantial evidence supports all of the alternatives. State

v. Warnick (1982), 202 Mont. 120, 129, 656 P.2d 190, 194-95. See

also State v. Cannon (1984), 121 Mont. 157, 687 P.2d 705; McKenzie

v. Osborne (1981), 195 Mont. 26, 640 P.2d 368; Fitzpatrick v. State

(1981), 194 Mont. 310, 638 P.2d 1002, cert. denied (1981), 449 U.S.

891. The cases cited by the State address alternative states of

mind and alternative charges, and therefore, are distinguishable.

By contrast, the present case addresses charging a defendant with

multiple acts of felony assault under one count, the need for the

court to properly instruct the jury as to unanimity given the

charging document, and the requirement that the jury render a

unanimous verdict under at least one separate act of felony

assault.

Appellant was charged with and found guilty of one count of

felony assault under § 45-5-202, MCA, which includes two different

statements of the same offense. Subsection (a) requires that the

State prove bodily injury to the victim by use of a weapon.

Subsection (b) requires that the State prove reasonable

apprehension of serious bodily injury to the victim by use of a

weapon. The District Court instructed the jury that " [tlhe law

10
requires the jury verdict in this case to be unanimous. Thus, all

twelve of you must agree in order to reach a verdict whether the

verdict be guilty or not guilty." The jury was instructed further

that O[iln your deliberations you shall first consider the charge

of Felony Assault . . . [all1 twelve of you must find the defendant

either guilty or not guilty of that charge."

Appellant argues that although the District Court instructed

the jury to return a unanimous verdict, it failed to specifically

instruct the jury to return a unanimous verdict regarding one or

more specific acts. In addition, appellant asserts that the

District Court erred by failing to use a proposed verdict form that

would have required the jury to find appellant guilty or innocent

under one, but not both, sections of the felony assault statute.

By contrast, the verdict form supplied by the District Court

provides:

We the jury, duly empaneled and sworn to try the issues

in the above case, unanimously find as follows:

Count I

Of the charge of Felony Assault, we find the defendant

Guilty

Although the jury was instructed as to the requirement of a

unanimous verdict, it is not clear from either the instructions or

the jury verdict form under which section of the felony assault

statute that the jury reached its verdict. The jury may have

signed the verdict form concluding that appellant was guilty of

felony assault without reaching a unanimous verdict as to either or

11
both of the statements of felony assault set forth in subsections

(a) or (b) . It is impossible to determine from the jury verdict

form whether all 12 members of the jury, or fewer than 12, found

appellant guilty of felony assault under subsection (a),

subsection (b), or both.

W e conclude that appellant's constitutional right to a

unanimous verdict was not protected by either the jury instructions

or the jury verdict form. Both the instructions and the verdict

form should have been structured so that it was clear to the jury

that it was required to reach a unanimous verdict under

subsection (a), subsection (b), or both.

We hold that the District Court erred by not properly

instructing the jury as to the unanimity of its verdict.

We reverse and remand for further proceedings consistent with

this opinion.

Justice

We concur:

Chief Justice

12
Justice James C. Nelson dissents and specially concurs

I dissent from our opinion on Issue 1 (other crimes evidence)

and specially concur with our decision on Issue 2 (unanimity of the

jury verdict).

Issue 1

Appellant's abuse of his wife began, literally, on their

honeymoon, two days after they were married, when Appellant

punched, slapped and yelled at Cynthia after she expressed a desire

to attend her stepfather's funeral. Similar beatings occurred

throughout the honeymoon trip and after the couple returned to

Belgrade to live. The beatings were usually precipitated by a

claim that Cynthia had talked to someone she should not have.

Cynthia testified that her husband's attacks were progressively

more violent and that Appellant threatened to kill her on at least

two occasions. This abuse culminated with the incidents for which

Appellant was charged and which are described in our opinion. The

Appellant conceded that he slapped Cynthia "a few times." To the

contrary, however, the physician who examined Cynthia in the

emergency roomtestifiedthat he found numerous bruises, tenderness

and swelling on various parts of her body, including her face,

stomach, shoulders, arm and ribs -- some of those injuries

consistent with her being hit with a piece of firewood.

We conclude that the evidence of Appellant's pre-July 9th

assaults on Cynthia was improperly admitted because, even though

sufficiently similar for Rule 404(b) purposes to prove the issue in

13
dispute, such conduct was, nevertheless, not relevant to prove

Appellant's intent and motive in committing the charged offense

which involved an assault with a weapon or reasonable apprehension

of bodily injury from the use of a weapon. I disagree with our

conclusion in this latter respect. Rather, I conclude that such

evidence was relevant to prove Appellant's motive and intent; that

such evidence was, therefore, properly admitted; and that part

three of the four part Just/Matt test was, thus, satisfied.

As our opinion correctly observes, we stated in Sadowski, that

to be admissible as relevant to show motive or intent, the

commission of the first crime or act should give rise to a motive

or reason for the defendant to commit the second crime. Sadowski,

805 P.2d at 542. Again, keeping in mind that the Appellant

admitted assaulting Cynthia but denied use of a weapon, (that being

the only issue); and keeping in mind the progressively more violent

nature of Appellant's assaults on his wife between the time they

were married and the time of the offense, the uncharged conduct was

relevant to establish Appellant's intent to actually cause bodily

injury or cause reasonable apprehension of serious bodily injury to

Cynthia. Given the progressively more violent history of their relationship, the jury could have inferred on the basis of the other

crimes evidence that Appellant's increasing level of violence,

albeit without the use of a weapon, had not produced, at least in

his mind, the result desired -- i.e., Cynthia was still talking to

people she should not be talking to. Accordingly, threatening

14
Cynthia with a weapon or actually injuring her with a weapon was

the next logical step necessary for Appellant to obtain control

over his wife. In short, if slapping her around, punching her and

threatening to kill her did not make a believer out of her, perhaps

stabbing a 12-inch long serrated knife into a wall next to her

face, threatening her with a jagged glass bottom and hitting her

with a piece of firewood would.

I conclude that, under the facts of this case, the other

crimes evidence was relevant, and thus admissible, as it tended to

establish the motive and reason for Appellant's use of a weapon in

the charged assault. Accordingly, I dissent from our opinion on

Issue 1.

Issue 2

1n my view the problem with the jury instructions and the

verdict form followed as the natural consequence of the manner in

which the Appellant was charged in the amended information. The

offense of felony assault was charged in the amended information as

follows:

count 1: Felony Assault, in violation of Section

45-5-202(2) (a) and (b), MCA, committed on or about the

night of July 9 to July 10, 1993, when the defendant

purposely or knowingly caused bodily injury to Cynthia

Weldy with a weapon when he hit her with a piece of

firewood, causing pain, and when the defendant purposely

or knowingly caused Cynthia Weldy to have reasonable

apprehension of serious bodily injury by use of a weapon

when he brandished a knife so that she would see it, hit

her with a piece of firewood, and broke a glass and held

part of the broken glass near her so that she would see

it.

Section 46-11-404(l), MCA (1991), provides:

Two or more offenses or different statements of the

15
same offense maybe charged in the same charging document

in a separate count, or alternatively, if the offenses

charged, whether felonies or misdemeanors or both, are of

the same or similar character or are based on the same

transactions connected together or constituting parts of

a common scheme or plan. Allegations made in one count

may be incorporated by reference in another count.

[Emphasis added.]

In my view, at least, the proper interpretation of the

statutory language is that while the prosecution has the discretion

to charge different offenses or different statements of the same

offense in one information, separate offenses and different

statements of the same offense should be charged in separate

counts. A prosecutor would not charge two or more different

offenses in the same count -- e.g., aggravated kidnapping,

deliberate homicide and robbery all in count one of an information.

By the same token, since the emphasized portion of the statute

makes no differentiation between different offenses and different

statements of the same offense, it logically follows that the

statute contemplates that different statements of the same offense

be charged each in a separate count as well. To interpret the

language otherwise, would render the words "in a separate count"

surplusage; all the statute would have had to say is that two or

more offenses or different statements of the same offense may be

charged in the same charging document.

Here, had the offenses of felony assault under 5 45-5-

202 (2) (a), MCA, and under 5 45-5-202(2) (b), MCA, been charged in

separate counts as contemplated by the statute, the instructions

and verdict form would, more than likely, have followed

appropriately from the way in which the amended information was

16
drafted.

Chief Justice J.A. Turnk$and Justice Fred J. Weber join

the foregoing dissent and special concurrence of Justice James

Nelson. A//

in

C .

I I I

-- -- I/

I’ Ghief Justice /f

Justice Karla M. Gray, specially concurring.

I concur in the Court's opinion on issue 1 regarding the

inadmissibility of "other acts" evidence. I join Justice Nelson's

special concurrence on issue 2 regarding the unanimity of the

verdict.

17
IN THE SUPREME COURT OF THE STATE OF MONTAN

No. 94-409 SW 1 3 I$95

STATE'OF MONTANA,

Plaintiff and Respondent,

-vRALPH 0. WELDY.

Defendant and Appellant.

In response to a petition for rehearing from the State of

Montana we amend the opinion as follows, beginning on page 10, line

12 :

We replace the above language with the following:

The cases cited by the State address alternative mental

states (purposely or knowingly) which relate to each

element of the offense in question. Purposely and

knowingly are not independent elements: Rather they are

alternative means of satisfying each of the elements of

the underlying offense. State v. Warnick, 202 Mont. 120,

128 (to sustain the charge of aggravated assault, the

state must prove each element of the offense was done

purposely or knowingly).

In Schad v. Arizona (1991), 501 U.S. 624, 111 S.Ct.

2491, 115 L.Ed.2d 555, the United States Supreme Court

held that it is erroneous to assume that statutory

alternatives are ipso facto independent elements defining

independent crimes under state law. "In point of fact .

. . legislatures frequently enumerate alternative means
o f committing a crime without intending to define

separate elements of separate crimes. . . ‘I In Kills on

Top v. State, 52 St.Rep. 608, we cited Schad for the

above proposition and held that the alternatives set

forth in the aggravated kidnapping statute § 45-5-303

MCA, represented different means of committing the same

offense rather than separate offenses. Accordingly, the

jury in Kills on TOP did not have to indicate upon which

alternative it based the defendant's guilt.

In Kills on TOP we were addressing the aggravated

kidnapping statue which has the following elements and

alternative means of satisfying those elements:

1 . Knowingly or purposely and without

lawful authority restrain another person by

either

a : secreting or holding in a place

of isolation; or

b: using or threatening physical

force

2 . With the purpose of:

a: hold for ransom or reward or as

a shield

b: facilitating commission of

felony or flight thereafter,

c : to inflict bodily injury or

terrorize victim,

d : interfere with performance of

governmental or political function,

o r

e : hold another in involuntary

servitude.

The alternatives in the aggravated kidnapping

statute are not separate elements in themselves, rather

they are different means of satisfying a specific common

element. The alternatives of secreting or threatening

physical force are alternative means of satisfying the

element of restraint. The five alternatives of

facilitating commission of robbery or terrorizing the

victim, etc., are alternative means of satisfying the

element of purpose.

In contrast, the felony assault statute involved in

the present case states that a person commits the offense

of felony assault if he purposely or knowingly causes:

1 . Bodily injury with a weapon;

2 . Reasonable apprehension of bodily

injury with a weapon, or
3. Bodily injury to a peace officer.

These three alternatives, unlike the alternatives in

the aggravated kidnapping statute, are not alternative

means of satisfying one ccmmon element. Rather, they

each set forth separate offenses in themselves.

Sincetheyrepresent separate offenses, they should,

as the special concurrence suggests, be charsed as

separate offenses. Here, they were charged in one count

as one offense.

In addition, change the last paragraph on page 10 to read:

In all other respect the

The petition for reheari

Justices