DA 10
- 0291



### IN THE SUPREME COURT OF THE STATE OF MONTANA 20 11 MT 278 STATE OF MONTANA, Plaintiff and Appellee,
v. LARRY B. DANIELS, Defendant and Appellant.

APPEAL FROM: District Court of the Twenty

- Second Judicial District,

In and For the County of Carbon, Cause No. DC 09

- 024 Honorable Blair Jones, Presiding Judge
COUNSEL OF RECORD:

For Appellant: Colin M. Stephens; Smith & Stephens, P.C.; Missoula, Montana For Appellee : Steve Bullock, Montana Attorney General; Jonathan M. Krauss, Assistant Attorney General , Helena, Montana Dan Guzynski, Assistant Attorney General, Special Deputy County Attorney for Carbon County, Helena, Montana Alex Nixon, Carbon County Attorney , Red Lodge, Montana
Submitted on Briefs: June 22, 2011 Decided: November 8, 2011 Filed:

__________________________________________ Clerk November 8 20112

Justice Jim Rice delivered the Opinion of the Court. ¶1 Defendant Larry B. Daniels ( Daniels ) appeals from the convict ion and judgment for deliberate homicide entered following jury trial in the Twenty
- Second Judicial District Court, Carbon County. In defense, Daniels asserted justifiable use of force. We affirm and restate the issues on appeal as follows: ¶2 **1. D** **id the**  **D istrict**  **Court err**  **in its**  **rulings regarding**  **the admissibility**  **of character**  **evidence of**  **the victim**  **in violation**  **of the**  **Rules of**  **Evidence and**  **Daniels ’**  **constitutional rights?** ¶3 **2. Did the District Court err by** **refusing Daniels’**  **proposed jury instructions on jus**  **tifiable use of force in defense of an occupied structure** **and burglary as a forcible**  **felony? FACTUAL AND PROCEDURAL BACKGROUND**  ¶4 In April 2009 , the Danielsf amily rented a ten - acre property in Fromberg, Montana
. Daniels , age 66, Buddy (Daniels’ adult son , age 43 ) , Logan(Daniels’ son , ag e 14 ) , and H agen(Buddy’s son , age 13 ) , lived together on the property
. Daniels and Logan had recently moved to Montana from California, and the property was rented by Daniels
so that the Daniels fa mily could live together. Two residen tial structures were on the property , including anorth house consist ing of an apartment and attachedshop , and the
ma in house l ocated to the south
. B uddy, Logan , and Hagen livedin the main house, while Daniels residedin the apartment in th e north house.3

¶5 Daniels and Buddy had plans to develop the property, and on the morning of May 21, 2009, they we ntt o Billings to purchase lumber to build corrals. Daniels and Buddy drank beer while driving home, stopp ing to buy f ood and supplies for Log an and Hagen
. They stopped at a bar and drank beer and liquor with friends until around 8:00 p.m. According to the bartender, everyone “seemed to be getting along great.” ¶6 Later, Daniels, Buddy, Logan and Hagen gatheredat the main housef or dinner
. Lo gant estified that Daniels and Buddy were intoxicated
. An arg ument ensuedduring dinner over Daniels incorrectly remembering Log an ’s birthday

and not being “a good grandpa” to Hagen
. The arg ument escalated , with Buddy asking Daniels to leavethe
ma in hou se , and Daniels refus ing
. B uddy broke two chair sand Daniels threw a beer at Buddy. Buddy then struck Daniels and wrestled him to the ground , pinning him there andt elling him to leave. B uddy then rolled or drug Daniels down the stairs. Daniels testifi ed he did not remember being struck , only that he ended up at the bottom of the stairs
. The argument continued as Daniels and Buddy mo ved into the mud room
. Hagen testified “it kind of toned down a little bit” and that neither persons eemed to be hurt. Daniels headed to his house, with Buddy following. H ag entestified that he and L ogan decided to “separate” Danielsand Buddy, and the boys started to go to wards D aniels’ house
. Daniels went into his house and was the only witness to the events that occur red in side the home
. ¶7 Daniels testified that he “went straight to the refrigerator and grabbed a beer, ” and went upstairs. He saidhe was quite upset, took a .22 pistol out of aholster and sat on his4

bed “thinking about shooting myself.” Daniels testifie d he heard the front door open and Buddy’s angry voice
. Buddy came up the stairsand verbally challenged Daniels
. Danielstestified that whenBuddy came up the stairs, Daniels said, “No more. Go home. It’s over. Go home. Get out of here.” Daniels to ld police “[b]y that time I’m around on this side of my bed at my nightstand and my pistol lays right there. I picked up my pistol and I said Bud, just leave and leave me alone. H e said fuck you and your pistol. I ’ll shove that mother fucker up your assand he come toward me, pop, pop.” Daniels testified Buddy “straight

- arm[ed] me in the chest,” and the pistol went in the air and he pulled the trigger “to protect myself.” Daniels told police that he fired three shots ten feet from Buddy
. He told polic e his int ent was to “[g]et away from him”and “to stop him, ” and that “[a]ny time you pick up a gun and you pop a cap, your intent is to kill.” ¶8 After the shooting, Daniels went downstairs. Log anand Hagenc a me through the doorway and Daniels told them t o leave. Log an and Hagentestified that Daniels said that he had just shot and killed Buddy. Daniels called 911 , telling the dispatcher: “ He’s wantin’ to beat me up all the time and he owes me a ton of money and arguin’ about this and one thing

another. H e ripped my shirt off of me and he shov ed me down the stairs
one thing another and I
... I come ov er to my little house and he followed me up here gonna kick my ass one thing another and I said le ave me alone. I can’t out .
. I can’t beat you. I’m too o ld. I can’t whip him anymore. I p icked up my gun, he said oh fuck you. What ya gonna do with that gun you know and blah, blah and I said I
... I ain’t g onna do it anymore. I ’m

t ired of it. Then I pulled the trigger. I ’m g uilty 100%.” Daniels5

testifi ed he remembered telling the 911 dispatcher he was “one hundred percent guilty,” and meant that “I hadshot my son. I knew that I had done this. I was not looking for any kind of defense at the time. I was not looking for justification. I was just

-- yes, I did it.” A trooper who arrived at the scene testifiedthat Daniels’ demeanor struck him as almost jovial and upbeat , and Daniels “asked if [the trooper] c ould get him a beer because it might be the last one that he would ever hav e.” S ix hours after

the shooting Daniels’ bloo d alcohol content was 0.08. Daniels was arrested at the scene. ¶9 Daniels had ana

brasionon his left elbow , and no other injuries
. B uddy had two gunshot wounds, one to the back of hishead at the base of his skull

— which the fore nsic pathologist/medical examiner, Dr. Thomas Bennett, believed was sustainedf irst

—and a second gunshot wound to the middle of his back. The third bullet went into the ceiling. The gunshot to the back of Buddy’sh ead struck and fractured the base of theskull. Dr. Bennettt estified that the shott o Buddy’s skull probably took place when he was upright, and it would have rendered Buddy immediately unconscious and caused him to fall directly to the g

round. Dr. Bennett believed Buddy was still alive at th at point and his heart would still have been beating. Dr. Bennettopined the second shot to the middle of his back occurredwhen Buddy was on the ground. According to Dr. Bennett, this shot broke two ribs and perforated Buddy’s lung, causing his chest ca vity to fill with blood. Dr. Bennett believed both shots were fired very close in time. Dr. Bennett believed the first shot was fired from a distance of “ at least four to five feet or more ,” and the second6

shot was fired from a closer distance of approxi mately a foot and a half away. Injuries sustained from

the two gunshot wounds caused Buddy’s death. ¶10 The St ate filed an I nformation charging Daniels with deliberate homicide in violation of § 45
- 5
- 102, MCA (2007). 1 The State later amended the I nformationt o alternatively charge mitigated deliberate homicidein violation of § 45
- 5
- 103, MCA
. Daniels pled not guilty to the chargesand filed notice of his intent to rely on the affirmative defense of justifiable use of force. The State filed a motionin l imine to prohibit Daniels from referencing testimony reg arding Buddy’s alleged character for violence until a proper foundation had beenlaid by Daniels , and Daniels sought an order excluding “any argument by the prosecution that would te nd to shift the burde n of proof
. ” (Emphasis om

itted.) The District Court entered preliminary rulings and deferred final rulings until trial. In January 2010 , a six

- day jury trial was conducted , during which Daniels testified
. The jury returned a guilty verdict o n the charg e o f deliberate homicide
. The District Court sentenced Daniels to 60 years in Montana State Prison, with a condition that he be ineligiblef or parole for 20 years. Daniels appeals. Additional facts as necessary will be discussed herein. **STANDARD OF REV IEW**  ¶11 A district court has broad discretion when determining the relevance and admissibility of

evidence. State v. Derbyshire , 2009 MT 27, ¶ 19, 349 Mont. 114, 201

1 Because Buddy’s death occurred in May of 2009, the 2007 MCA was in effect , except for the justifiable use of force amendments enacted within Ho use Bill (HB) 228, which went into effect on April 27, 2009. Laws of Montana, 2009, ch. 332, § 11, at 2275
. All subsequent references to the MCA will be to the 2007 version, unless otherwise indicated.7

P.3d 811. Generally, we review evidentiary rulings for an abuse of discretion. State v. Dis t. Ct. of

the Eighteenth Jud. Dist. , 2010 MT 263, ¶ 31, 358 Mont. 325, 246 P.3d 415. A district court abuses its discretion if it “acts arbitrarily without the employment of conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.” Derbyshire , ¶ 19. “ In exercising its discretion, however, the trial court is bound by the Rules of Evidence or applicable statutes. Thus, to the extent the court’ s ruling is based on an interpretation of an ev identiary rule or statute, our re view is de
novo. ” Derbyshire , ¶ 19; see also Dist. Ct. of the Eighteenth Jud. Dist. , ¶ 31. Our review is plenary for questions regarding constitutional law. State v. Jackson , 2009 MT 427, ¶ 50, 354 Mont. 63, 221 P.3d 1213. **DISCUSSION** ¶12 **1. D** **id the**  **Distric t**  **Court err**  **in its**  **rulings regarding**  **the admissibility**  **of character**  **evidence of**  **the victim**  **in violation**  **of the**  **Rules of**  **Evidence a**  **nd Daniels**  **’ constitutional rights**  **? A.**  **2009 Legislative Changes** ¶13 The central theme of Daniels’ arg umentsis that theDistrict Courterred by making rulings in violation of legislation enacted by the 2009 Legislature. HB 228 proposed an act “preserving

and clarif

ying l aws relating to the right of self

- defense and the right to bear arms.” L aws of Montana, 2009, ch. 332, at 2271 ( empha sis omitted)
. Under prior law, the State bore the burden of proving the elements of the charg ed offense beyond a reasonable doubt, but it did not need to prove “the absence of justification.” State v.8

Henson , 2010 MT 136, ¶ 33, 356 Mont. 458, 235 P.3d 12 74 ( citing State v. Longstreth , 1999 MT 204, ¶ 22, 295 Mont. 457, 984 P.2d 157 ; additional citation omitted )
. I n Longstreth , we explainedthat “as an affirmative defense, justifiable use of force requires the defendant to produce sufficient evidence on th ei ssue to raise a reasonable doubt of his guilt and that the State’s burden is to prove beyond a reasonable doubt the elements of the offense charged, which does not include the absence of justification .” Longstreth , ¶ 22 (emphasis added). ¶14 The sponsor of HB 228, Representative Kerns, indicated to the House Judiciary Committee that the bill “shifts the burden to the prosecutor to prove
. . . the absence of justification ” in self

- defense claims. M ont. H. Comm. on Jud., Hearing on H. Bill 228 , 61st Legis. , Reg
. Sess., (Jan. 22, 2009). Committee discussion on HB 228 expressly referred to Longstreth
. Mont. H. Comm. on Jud., Hearing on H. Bill 228 , 61st Legis., Reg . Sess., Exhibit 3 , at 1
- 2 (Jan. 22, 2009) (noting HB 228’s provision on the burden of proof f or j ustifiable use of force “is important and needed to clarify law in Montana resulting from the 1999 Longstreth o pinion by the Montana Supreme Court”). Rep. Kerns explainedthat the “meat of the bill” was that “you are innocent until proven guilty in te rms of self

- defense. That the State must prove an absence of justification beyond a reasonable doubt with respect to self

- defense claims. That’s the foundation of our judicial system in this nation, and we’re just specifying that it applies to self

- defen se claims as it does [ to ] every other aspect of the law.” Mont. Sen. Comm. on Jud., Hearing9

on H. Bill 228 , 61st Legis., Reg
. Sess., (Mar. 17, 2009)
. HB 228 included a provision which is now codified as§ 46
- 16
- 131, MCA (2009) : **Justifiable use**  **of force** 

**– b**  **urden of**  **proof.** In a criminal trial, when the defendant has offered evidence of justifiable use of force, the state has the burden of proving beyond a reasonable doubt that the defendant’s actions were not justified. See also L aws of Montana, 2009, ch. 3 32, § 9, at 2275. Thee nactment of HB 228 effectively abrogated Longstreth , Henson and other cases to the extent they held that the burden of proof for the defense of justifiable use of force ( JUOF ) was on the defendant. 2 ¶15 Daniels further arg ues that thepassage of HB 228 “ rev ersedthe long

- held rule in Montana that justifiable use of force ”i s an affirmative defense , apparently because defendants have historically been required to prove affirmative defenses. See State v. Gratzer , 209 Mont. 308, 318, 682P .2d 141, 146 ( 1984)
. H owever, this arg ument overstates the effect of the legislation. Section 45
- 3
- 115, MCA, unchanged by HB 228, continues to provide that JUOF is an affirmative defense , which we have defined as “ one that admits the doing of the act c harged, but seeks to justify, excuse or mitigate it. ” State
v. Ni cholls , 200 Mont. 144, 150, 649 P.2d 1346, 1350 (1982). A defendant is still required to provide written notice to the prosecutor of his intention to rely upon the defense of JUOF. Section46
- 15
- 323(2), MCA. And, w hile the Legislature provided that the burden of proof can ultimately be shifted to the State, it placed the initial burden of
ev idence production

upon the defendant
. Under § 46
- 16
- 131, MCA ( 2009) , the

2 See e.g. State v. Matz , 2006 MT 348, 335 Mont. 20 1, 150 P.3d 367 ; State v. Daniels , 2 10 Mont. 1, 682 P.2d 173 (1984); State v. Kutnyak, 211 Mont. 155, 685 P.2d 901 (1984).10

defendant has the initial burden to “offer[] evidenceof justifiable use of force ” before the burden of proof

is shifted to the State
. If the defendant offers no evidence, then he fails to satisfy his initial burden and the defense fa ils. See § 26
- 1
-401, MCA (“The initial burden of producing evidence as to a particular fact is on the party who would be defeated if no evidence were given on either side. Thereafter, the burden of producing
ev idence is on the party who would suffer a finding against him in the absence of further
ev i dence.” )
. Accordingly, though the ultimate burden of proof can be shifted to the State, JUOF still operates as an affirmative defense
. ¶16 We also disagree with Daniels’ implication that by providing pre

- trial notice of his intention to rely on JUOF as a de fense, he satisfied his burden under § 46
- 16
- 131, MCA (2009) , to “offer [] evidence , ”and thereby shifted the burden of proof to the State . Notice does not place the defense of JUOF at issue during the trial. Ci ty of Red Lodge v. Nelson , 1999 MT 246, ¶ 13 , 296 Mont. 190, 989 P.2d 300; State v. Logan , 156 Mont. 48, 65, 473 P.2d 833, 842 (1970) (the notice of self

- defense served by defendant on the State pre -trial is immaterial and does not place the matter into issue during trial; defendant is not bound to rely on this defense at trial, notwithstanding service on the S tate). 3 **B. The**  **District Court’s evidentiary rulings** ¶17 The thrust of Daniels’ ov erlapping arg

uments is that the District Courterred in its rulings regarding the foundation required for the introduct ion of character evidence about

3 In the District Court, theparties agreed that sufficient evidence was offered by Daniels to raise JUOF as a defense, and the jury was instructed accordingly. Therefore, we take no position on the quantum

of evidence required under § 46

- 16
- 131, MCA( 2009), to shift the burden of proof to the State, as that issue is not before us .11

Buddy
. Before trial, the State filed a motion in limine requesting the court to “ issue an order prohibiting the Defendant at trial from referencing or soliciting testimony regarding the victim’s alleg

ed character for violen ce , including specific acts of violence, until a proper foundationi s laid by the Defendant
. . . .” At hearing, the court noted the statement inState v. Montgomery, 2005 MT 120, ¶ 20, 327 Mont. 138, 112 P.3d 1014, that failure to establish the defendant ’s knowledge of the victim’s violent past rendered certain character evidence of the victim “irrelevant and inadmissible.” D efense counsel arg ued that “there are various ways for a defendant to establish his knowledge of the violent nature of the victim. I t doesn’t have to be through the defendant’s testimony.” The court responded it felt it was a “sticky wicket” in that “you’re asking someone else to really comment on what only the individual himself can readily establish.” The State added t hat “a dist inction needs to be made at some point of reputation evidence and specific instances of violent behavior by the victim,” stating that the State’s concern was “the State’s case being prejudiced by the introduction of specific acts.” ¶18 Relying on Montgomery , the court made an initial ruling on theState’s motion : [F]or evidence of the victim’s character and propensity for violence to be admissible the evidence first must be related to the issue of the reasonableness of force used by the defendant. A nd at this point, the Court’s assuming that based on the defendant’s obvious indications that justifiable use of force is a defense in this case. Secondly, the defendant must establish his knowledge of the violent nature of the alleged victim in order for that ev idence to be admissible. I will reserve how that must be established, but just for general gu idance, it would seem that with outthe defendant’s testimony in that reg ard, relative to what his understanding was, it may be difficult to show that. But I’m keeping an open mind.12 And then finally, the defendant must show that this knowledge motivated his own level of force. . . . So if the defendant fails to make that showing, the evidence is irrelevant and inadmissible. During trial, prior to the State calling Hagena s a witness , Danielsindicated Hagenhad knowledge of a previous act of violence by Buddy that Danielswanted to inquire into on
cross - examination. The court said it would disallow cross “until there’s some foundation laid for thatpursuant to Montgomery and other cases. I thought about this previously, but I think the defendant is going to hav e to testify
. ” Citing State v. Cartwright, 200 Mont. 91, 650 P.2d 758 (1982) and Logan , t he court concluded “I’m not going to allow it until that foundati on is laid.” However, during defense c ross - examination, Hagen testifiedthat Buddy had “ [ a ] little bit” of a reputation for fi ghting, without objection from the State. ¶19 During Log

an ’s testimony, the court sustained the State’s objection to a defense que stion asking about Buddy’s reputation “for being a fighter
. ” In the chambers conference which followed , defense counsel indicat ed“ I did not interpret your previous ruling to go to reputation,” and the State argu ed“ I believe that reputation for violence only comes in
. . . once the defendant testifies and he says that he relied upon the defendant’s reputation for violence and he acted upon that.” The court responded “it
seems to me to be the appropriate way to g o.” Thereafter, questioning resumed, but no reference was made to Buddy’s reputation for violence. 4

4 At the close of the defense’s case - in

- chief, defens e counsel indicated for the record “we had other witnesses that fell in that cat egory and that would have been Logan Daniels .” T hus, “we13

¶20 Thereafter, Danielstook the stand, and defense counsel asked :“ D o you know of any other instances in the past of Bud being violent to you?” The State objected and, at the ensuing chambers confer ence , the court stated that the State’s objection would be sustained becausethe level of testimony so far was “insufficient foundation that what was go ing on in his mind was that he was recalling other specific instances o f violence committed by this vict im.” Daniels ’ counsel thenmade an offer of proof of six instances of Buddy’s past behavior h e wished to admit
. The court ruled that four of the six instanceswere more prejudicial than probative and would be excluded under M. R. Evid. 403
. 5 The court a lso ruled that a2007 Columbia Falls bar fightand a 2004 incident at a barbecue in Wyoming would be admissible upon the proper foundation. ¶21 However, w

hen Daniels resumed testifying, he did not offer this foundation. Instead, c ounsel asked :“ [ I] n your de cision to shoot Bud, did you take into consideration his propensity for violence?” Danielsanswered “[y]es, I did.” D ef ense counsel then asked if Buddy had a reputation for “being violent,” “fighting,” “a short fuse,” and “holding grudges,” to which Dani elsanswered “[y]es, he does.” D efense counsel then asked: Now when you decided to shoot, you had just come from the main house; is that correct? [ Daniels ]:Correct
.
made the decision not to call other witnesses who would have gotten on the stand and who would have testified as to reputation.” 5 T h is ruling is not disputed on appeal.14 [Defense counsel]: A

nd so that was really what was on your mind, is that fair to say? [ Daniels ]:The events of that evening, yes. [Defense counsel]: So you had just gotten beat up; is that correct? [ Daniels ]:Yes.

. . . [Defense counsel]: I s it fa ir to say your main motivating force that night was what happened that nigh t? [ Daniels ]:Correct. Immediately thereafter, the parties metwith the court in chambers andthe State argued that , after this testimony , the specific instances of Buddy’s character for violence had no probative valueand would only be prejudicial
. D aniels agreed and indicated “we chose to g o away from specific acts and go through that. We went through general reputation. That’s what we did.” The court confirmed th atr eputation evidence had been received “obviously without objection, as to propensity.” **C. Analysis**  **i.) Rules of Evidence**  ¶22 Daniels challenge sthe District Court’s ruling that he needed to testify in order to lay the foundation necessary for admission of Buddy’s character evidence. He also contendsthe District Court abused its discretion by d isallowing cross

- examination of the15

State’s witnesses on Buddy’s reputation and acts of violence, asserting the rulings were premised on case law whichhas been overruled by HB 228. 6 ¶23 While HB 228 provides for shifting of the burden of proof of JUOF , the Montana Rules of Evidence still apply and “govern all proceedings in all courts in the state of Montana . . . .” M. R. Ev id. 101(a). See also § 46
- 16
-201, MCA (“The Montana Rules of Evidence and the statutory rules of evidence in civil actions are applic able also to criminal actions, except aso therwise provided.”)
. Generally , “[e]vidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion ,” M. R. Evid. 404(a), with an exception for

“ [e]vidence of a pertinent trait of character of the victim of the crime offered by an accused.” M. R. Evid. 404(a)(2) ; State v. Sattler , 1998 MT 57, ¶ 43, 288 Mont. 79, 956 P.2d 54
. 7 When character evidence is admissible, Rule 4 05 provides the method s of proving character. Nelson , ¶ 11 . Rule 405 provides:

6 The State asserts that the “only evidentiary issue before this Court is whether the district court erred in excluding prior specific instances of Buddy’s violence
. . . . ”T he State notes that testimon y a

boutB uddy’s reputation for fighting was givenwithout objection during Hagenand Daniels’ testimony. However, reputation evidence was excluded during Logan ’s testimony , on the ground of insufficient foundation. D aniels focuses on the District Court ’s “one constant ruling , ” which he describes a s “that there would be no evidence of Buddy’s past acts or reputation absent proper foundation being laid via Larry’s testimony. ” (Emphasis added.) Thus, we deem Daniels’ arguments to encompass the exclusion of reputation evidenceas well as prior specific acts of violence
. 7 Instead of utilizing Rule 404(a)(2), Daniels appears to argue on appeal that Buddy’s character was admissible because it was “an essential element” of the JUOF defense, citing M. R. Evid. 404(c). Rule 404(c) states “[e]vidence of a person’s character or a trait of character is admissible in cases in which character or a trait of character of a person is an essential element of a charge, claim , o r defense.” See also the first prong of M. R
. Evid. 405(b). H owever, a “victim’s ch aracter for violence is not an ‘ essential element’ of the defense of justifiable force.” Nelson ,16 (a) Reputation or opinion. I n all cases in which ev idence of characte r or a trait of character of a person is admissible, proof may be made by testimony as to reputation or b y testimony in the form of an opinion. On cross - examination, inquiry is allowable into relevant specific instances of conduct. (b) Specific instances of conduct. I n cases in which character or a trait of character of a person is an essential element of ac harg e, claim, or defense, or where the character of the victim relates to the reasonableness of force used by the accused in self defense, proof may also be made of specific instances of that person’s conduct. ¶24 Daniels first arg

ues the court erred in dis allowing defense cross - examination concerning

specific instances of

B uddy’s violent conduct under Rule 405(a). Asnoted, the State called Hagen as awitness , and during the defense cross - examination , Hagen testified to Buddy’s r eputation for being a fight er without objection from the State. Daniels construe sRule 405(a) to permit furtherdefense cross

- examination about specific instances of Buddy’s conduct becauser eputation evidence was elicited during earlier defense questioning of Hagen
. In other word s, Daniels arg uesthat the last sentence of M. R. Ev id. 405(a) permitted the defenset o conduct cross - examin ation regarding specific instances of Buddy’s conduct once the defense had elicited ev idence of Buddy’s reputation. We disagree with Daniels’ inter pretation o f th eR ule. R ule 405(a) permits
cross - examination about

specific instances of conduct by aparty who is adverse to t he witness’ reputation or opinion testimony, not by the samep arty. See§ 2 6
- 1
- 101(1), ¶ 19; Sattler , ¶ 45. Here , Daniels conceded in both his response to the State’s m otion and at the pre - trial hearing that a victim’s character is not an essential element of the JUOF defense. Therefore, we do not analyze Daniels’ evidentiary arguments in the context of M. R Evid. 404(c), but rather under M
. R. Evid. 404(a)(2). Th is approach is reinforcedb y Daniels’ arg ument tothe District Court , in support of introduction of Buddy’s character evidence , that “[a]n exception is allowed when the character trait of the victim is offered by the accused,” thereby implicitly relying on M. R. Evid. 404(a)(2).17

MCA (emphases added) (“‘Direct examinati on’ is the first examination of a witness on a particular matter . ‘Cross
- examination’ is the examination of a witness by a party other than the direct examiner .”); see also State v. Jones , 48 Mont. 505, 516, 139 P. 441, 445 (1914 ) ( first em

phasis in original ) (“ As the fa vorable [reputation] testimony tends to sustain the presumption of innocence which the law indulges in fa vor of the defendant, by introducing it the defendant tenders an issue of fact, viz. , whether his reputation is such as the witnesses s ay it is, and the prosecutionh as the right to cross - examine t he witnesses to ascertain the sufficiency of the grounds upon which they base their statements. ”). Otherwise, a party could offer reputation evidenceand thereby open the door to further examin ation about specific instances , aninterpretation which would swallow the rule. We conclude t he District Court did not abuse its discretion. ¶25 Daniels next arg

ues that “ [t]he court abused its discretion by disallowing [him] the ability, on cross

- examination , to present evidence of specific acts of Buddy’s violent past and reputation for violence”until proper foundation had beenlaid by Daniels’ testimony. (Emphasis omitted.) He argues the District Court erroneously relied on pre

- HB 228 cases such as Logan , Cartwright , and Montgomery
. ¶26 In Logan , the defendant was charged withf irst degree murder and had given notice of his intention to claim self

- defense. Logan , 156 Mont. at 52 , 473 P.2d at 835
. We held that ev

idence of the victim’s reputation was admissib le only after the issues of self

- defense and the identity of the agg ressor had been raised. Logan , 156 Mont. at 64, 473 P.2d at 842. Concluding the defendant had not yet joined these issues when making18

his offers of proof, “no foundation then existed for the admission of this testimony”and the district court properly excluded the evidence. Logan , 156 Mont. at 65 , 473 P.2d at 842. In Cartwright, the defendant challenged the district court’s refusal of evidence of threats made by the victims and their fa mily
. Cartwright , 200 Mont. at 103, 650 P.2d at 764. The defendant did not admit to the killing, stating only that he did “not remember firing any shots.” Cartwright, 200 Mont. at 104, 6 50 P.2d at 7 65
. Affirming, we held that “ ‘ the accused must first l ay a foundation that he acted in self defense before he can introduce evidence of the violent character of the victim” ’ (citation omitted), noting Logan ’s statement that “‘ [ u ] ntil such time as defendant took the stand and admitted the killing, the issue of

s elf defense was not joinedat the trial .’” Cartwright , 200 Mont. at 104, 650 P.2d at 764
- 65 (quoting Logan , 156 Mont. at 65, 473 P.2d at 842). In Montgomery , the defendant shot and killed a man in his home w ho turned out to be an individual the defenda

nt had fought withearlier. Montgomery, ¶¶ 3
- 4. We held that the defendant “must establish that he knew he was shooting [the victim], that he knew of [the victim’ s ] past violent conduct, and that his knowledge of this conduct led him to use the level of force he did.” Montgomery , ¶ 19
. We concluded that evidence of the victim’s past was “irrelevant and inadmissible,” since the defendant “did not establish that his knowledge of

[ the victim’s] past ledh im to use the level of force he em ployed.” Montgome

ry , ¶ 20. 8

8 See also Des chon v. State , 2008 MT 380, ¶ 24, 347 Mont. 30, 197 P.3d 476 (“Evidence of the vio lent nature of the alleged victim of an assault is limited to what the defendant knew at the19

¶27 I nc ontrast to Daniels’ assertion that pre - HB 228 cases on foundationand relevancehav

ebeen overruled, the discussionsin Montgomery, reiterated in Deschon and Henson , as to the foundationrequired for admission of characte r evidence of the vi ctim, remaing ood law. “Ev

idence which is not relevant is not admissible.” M. R. Evid. 402
. Consequently , “[s] ince [the defendant] did not establish that his knowledge of [ the victim’s] past led him to use the level of force he employed, [the victim’s] past was irrelevant and inadmissible.” Montgomery, ¶ 20 ; see also Deschon , ¶ 24 ; Henson , ¶ 27

. While the burden may shift to the State to prove the absence of justification under § 46

- 16
- 131, MCA

( 2009) , this burden does not eliminatethe need to satisfy foundational requirements for the admissibility of evidencepursuant to the Rules of Evidence. 9 ¶28 The District C ourt did not err in requiring Daniels to lay a proper foundation, here, by testifying. Given the circumstances here, the court properly determined that Daniels’ testimony was necessary to provide the requisite foundation for the evidence of Buddy’s past which he initially intended to offer
. Daniels fa ils to specifically demonstrate how the foundation for his proffered evidence could have otherwi se been established , and therefore , we need not address whether the foundation could have been alternatively laid
. And, in the end, Daniels did not offer evidence of the two incidents in Buddy’s past
time he used force against the victim, and it is also required that the defendants how this knowledge led him to use the level of force he did.”)
. 9 There is no dispute on appeal that Daniels raised and joined the defense of JUOF during trial. Therefore, the State correctly notes that the discussions in Cartwrightand Logan , premis ed upon whether self

- defense had been joined, do not apply. To the extent that the District Court ’s reliance on these cases could be considered error, it was harmless, as the court correctly analyzed relevance pursuant to Montgomery
.20

which the District Court had approvedf ollowing his off

er of p roof , but rather testified that it was the ev

ents of the ev ening in question which motivated his behav ior. The District Court did not abuse its discretion.

**ii.) Constitutional arguments**  ¶29 Daniels arg

ues, “[b]y requiring Larry’s testimony to provide foundation for Buddy’s character and reputation, the court shift ed the burden of proof to Larry,” thereby violating his constitutional right to dueprocess . Danielsargues sufficient objections exist for the review of this issue on direct appeal, but a lternativ

ely requests we apply plain error review. ¶30 Daniels filed a pre - trial motionin l imine request ing the court to exclude “any arg ument by the prosecution that would tend to shift the burden of proof pursuant to the U.S. and Montana Constitutions and § 46

- 16
-204, M.C.A.” (Emphasis omitted.) P rior to opening statementsat trial , the District Court granted Daniels’ motion , stating : “ Then there’ s some question about shifting theburden of proof. I’m go ing to believ e that the State isn’t going to attempt to do s o. A nd if you think that the State is treading on thin ice in that regard, you need to let me know. But that request is granted. ”Daniels offered no objection during the trial. ¶31 Generally, “[a] d efendant must make a timely objection to properly prese rve an issue for appeal. ” State v. Paoni , 2006 MT 26, ¶ 35, 331 Mont. 86, 128 P.3d 1 040 ; s ee also §§ 46
- 20
- 104(2) and

- 701 , MCA. While “ we have repeatedly approved the use of a motion in limine to p reserve an objection for appeal ‘ provided the objecting party makes21

the basis for his objection clear to the district court , ’” State v. Vukasin , 2003 MT 230, ¶ 29, 317 Mont. 204, 7 5 P.3d 1284 (citation omitted) , the objector is still obligated to
ma ke the basis and grounds for theo bjection clear to the court. State v. Weeks , 270 Mont. 63, 85, 891 P.2d 477 , 490 (1995)
. Further, the “ specific objections must be made to portions of testimony deemed inappropriate; broad general objections do not suffice .” Weeks , 270 Mont
. at 85 , 8 91 P.2d at 490. Consequently, we concludet hat Daniels’ motion in limine did not preserve ano bjection for appeal sinceh is motion was generalized, and did not provide notice to the court of the specific action to which he objected. See Vukasin , ¶ 38; State v. Ferguson , 2005 MT 343, ¶ 66, 330 Mont. 103, 126 P.3d 463. ¶32 We invoke the p lain error doctrinesparingly, on a case - by

- case basis. State v. Lindberg , 2008 MT 389, ¶ 34, 347 Mont. 76,196 P.3d 1252 . For plain error review of an unpreserved issue , “ the appealing party must (1) show that the claimed error implicat es a fundamental right and (2) ‘firmly convince’ this Court that failure to review the claimed error would result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of

the trial or proceedings, or compromise the integrity of the judicial process. ” State v. Norman , 2010 MT 253, ¶ 17, 358 Mont. 252, 244 P.3d 737 (citations omitted)
. ¶33 A f undamental principle of our criminal justice system is that the State prove
ev ery element of ac harged offense beyond a reasonable doubt, State v. Price , 2002 MT 284, ¶ 3 3, 312 Mont. 458, 59 P.3d 1122 (citing In re W inship , 397 U.S. 358, 363
- 64, 9022

S. Ct. 1068, 1072
- 73 (1970), and we have previously stated “[i]f the burden of proof was shifted as [the d efendant] claims, there is no doubt his fundamental constitutional rights have been violated.” Price , ¶ 33
. Ev identiary f

oundation is a related, but separate issue from determining which party bears the burden of proof. As we hav e discussed herein, by r equiring Daniels to compl y with evidentiary requirements, the District Court did not impermissibly shift the burden of proof on an element of the offense. Further , t he District Court was clear attrial that the State bore the burden of proof to prove the elements of deliberate homicide as well as the absence of JUOF , and so instruct edt he jury. Thus, we are not “ ‘ firmly convince [ d ]’ ” that failure to review Daniels’ claim would result in “a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the trial
. . . or compromise the in tegrity of the judicial process,” and we decline to invoke the plain error doctrine. Norman , ¶ 17 (citations omitted)
. ¶34 Daniels raises a second constitutional argument. H e asserts “[b]y comp elling Larry to testify in order to lay the foundation f or his justification evidence, the court violated his Fifth Amendment right to remain silent” under the United States Constitution, and Article II, Section25, of the Montana Constitution
. The Stateanswers that Danielsnever objected that he was being compelled to testify , and notes that he does not seek plain error

r eview of

this issue
. In reply, Danielsargues his right to remain silent argument is properly preserved for appeal because of “numero us references to the Fifth Amendment throughout the record. ”23

¶35 Daniels is correct that there are references to the Fifth Amendment in the record; however, they do not encompass the argument heis asserting on appeal. When t he State filed its motion in limine, itrequested that Daniels testify during a pre

- trial hearing to lay
a proper foundation for his evidence
. In r esponse , Daniels ’ counselvigorously opposed that suggestion , arguing

“the most important reason that we object to this, Your Honor, is that what they’re asking for is some look into Mr. Daniels’ mind.
. . . Well, he has a Fifth Amendment right to keep that to himself. Whether he testifies or not at trial , is also up to him.
. . . I f he wants to give itup at trial , he can do that.” (Emphas e s added.) The District Court ruled :

I think the Fifth Amendment, and then the Montana c onstitution protections, as well, preclude the Court from requiring the defendant to take the stand at this timeand make such a showing. And if he fa ils to make such a showing at any time , that evidence is irrelevant and inadmissible. (Emphase s added.) Thus , Daniels raised his Fif thA mendment right to remain silent during the pre - trial h earing, and prev ailed there on his arg

ument. H owever, he also indicated the like lihood he wouldt estify at trial , which he did. During trial, Daniels’ counsel stated repeatedly that Daniels would testify and offered no objection to his doing
so based upon the Fifth Amendment. Daniels has notasserted, either in the District Court
or on appeal, that he would have declined to testif y hadthe courtnot made its ruling. See State v. Kutnyak, 211 Mont. 155, 172, 685 P.2d 901, 910 (1984) (“defense counsel neither objected to the ruling[s] of the trial judge nor asserted that his client could not be compelled to testify to establish self

- defense. In addition, he never stated during trial or24

on appeal that he would not have had his client testify if the trial judge had not made that ruling.”)
. ¶36 “‘ It has long been the rule of this Court that on appeal we will not put a District Court in error for a ruling or procedure in which the appellant acquiesced, participated, or to which appellant made no objection. Acquiescence in error takes away the right of objecting to it. This Court will not hold a district court in error when it has not been given an opportunity to correct itself. ’” State v. English , 2006 MT 177, ¶ 71, 333 Mont. 23, 1 40 P.3d 454 ( citation omitted). We hold that Daniels’ constitutional argument has not been properly preservedfor appeal. ¶37 **2. Did the District Court err by** **refusing Daniels’**  **proposed jury instructions on justifiable**  **use of force in defense of an occupied**  **structure an**  **d burglary as a forcible**  **felony ?**  ¶38 “[D]istrict courts are accorded broad discretion in formulating j ury instructions.” State v. Archambault , 2007 MT 26, ¶ 25, 336 Mont. 6, 152 P.3d 698. We review decisions reg

arding j ury instructions for an abuse of discretion. State v. Cybulski , 2009 MT 70, ¶ 34, 349 Mont. 429, 204 P.3d 7. When considering if the district court has erred in its jury instructions, “we determine whether the instructions, taken as a whole, fully and fairly instruct the jury regarding the applicable law.” Archambault , ¶ 14 ; see also State v. DaSilva , 2011 MT 183, ¶ 15, 361 Mont. 288, 258 P.3d 419
. A m istake in rendering the instructions “must prejudicially affect the defendant’s substantial rights” to constitute reversible error. Cybulski , ¶ 34
.25

¶39 Daniels argues the court erred in refusinghis proffered jury instructionconcerning th e defense of an occupied structure under § 45

- 3
- 103, MCA (2009) . Daniels argues that this refused jury instruction had “ample evidentiary support” in the record. ¶40 Section 45
- 3
- 103, MCA ( 2009) , pertaining to the use of force in defense of an occupied struct

ure, wasamended by

HB 228. It states: (1 ) A person is justified in the use of force or threat to use force ag ainst another when and to the extent that the person reasonably believes that the use of force is necessary to prevent or terminate the other pe rson’s unlawful entry into or attack upon an occupied structure. (2) A person justified in the use of force pursuant to subsection (1) is justified in the use of force likely to cause death or serious bodily harm only if: (a) the entry is made or attempt ed and the person reasonably believes that the force is necessary to prevent an assault upon the person or another then in the occupied structure; or (b) the person reasonably believes that the force is necessary to prevent the commission of a forcible fe lony in the occupied structure. Section 45
- 3
- 103 , MCA

( 2009)
. HB 228 deleted the languagep rev iously contained in the provision that the entry had to bemade or attempted “in violent, riotous, or tumultuous manner”t o justify use of force. L aws of M on tana, 2009, ch. 332, § 4, at 2273. 10 ¶41 We have previously explained that “an unlawful entry is a prerequisite to asserting the defense of justifiable use of force in defense of an occupied structure.” State v. Hagen , 273 Mont. 432, 440 , 903 P.2d 1381, 1 386 (1995) ; see also State v. Sorenson , 190

10 The prior

version st ated , in part : A person“ is justified in the use of force likely to cause death or serious bodily harm only if: ( 1) the entry is made or attempted in vi olent, riotous, or tumultuous manner

and he reasonably believes that such force is necessary to preven t an assault upon or offer of personal violence to him or another then in the occupied structure . . . . ” Section 45
- 3
- 103 (1) , MCA (2007)(emphasis added)
.26

Mont. 155, 170, 619 P.2d 1185 , 1194 ( 1980) (emphasis in original) ( “By its terms, this section [§ 45
- 3
- 103, MCA] only applies to efforts of a defendant to prevent or terminate
an unlawful entryinto occupied premise s. I t has no application to a lawful entry into premises
. ” ) ; State v. Beach , 247 Mont. 147, 150, 805 P.2d 564 , 566 ( 1991). Daniels attempts to distinguish Hagen , Sorenson , and Beach f rom hisc ase b ecause the statute
was amended by HB 228. N otably, howev er, the statute as amended by HB 228 still contains the same key phrase “unlawful entry into or attack upon an occup ied structure” that the versionsin our prior cases relied up on. ¶42 “A district court must only instruct the jury on those theories and issue s which are supported by evidence presented at trial.” Hagen , 273 Mont. at4 38, 903 P.2d at 1385. The evidence at trial indicated the following: D aniels signed the Residential Lease
Rental Agreement, but Buddy was listed on the lease under the section e ntitled “Additional Occupants , ” denoting that he was to “occupy the premises” along with Hagenand Logan
. The realtor who had facilitated the lease testified that each person was to have free use of the property , and that the lea se agreement was intended to cover both homes. Hagentestified the property was considered to be a “whole family estate” and a “family home,” and he felt free to mov e about the whole property , of ten going between the two houses. Log

antestified that people “ [ p ] retty much” went wh ere they wanted on the property , and that Buddy also went to Daniels’ house
. Logana lso testified that he went to Daniels’ house every day and slept there“ [ a ] f ew times.” Logant estified that Daniels nev

er knocked when entering the main house, and that he, Hagenand Buddy27

never knocked when entering Daniels’ house. While Daniels testified that he always locked his house when he left, he also testified that Loganhad a key and the family knew that they could “

jimmy the door [open] from the shop
. ” W hile Daniels argues on appeal that “family me mbers very rarely entered into each others’ bedrooms,” both Hagen and Log an testified that they had been in Daniels’ bedroom. Finally, when asked if he ev er told other family me mbers not to enter his house, Daniels testified that he had never said that to Logan , and had only told Hagennot to come inside if Hagenwas going to use bad language. ¶43 We conclude that the evidence clearly established that Buddy was not a trespasser into Daniels’ house , that he was a co

- occ upant, and that his entry into Daniels’ house was lawful. Because “ an unlawful entry is a prerequisiteto asserting the defense of justifiable
use of force in defense of an occupied structure, ” Hagen , 273 Mont. at 440 , 903 P.2d at 1386 , the District Courtcorrectly denied Daniels’ proffered jury instruction. ¶44 Daniels also arg

ues the District Court erred by refus ing to include the definition of burglary as a forcible felony for consideration with his defense of JUOF in defense of a person . When instructin g the jury on JUOF to defend a person , the District Court instructed the

j ury that a “forcible felony” means “ any felony which involves the use or threat of physical force or violence ag ainst any individual. ” See§ 4 5
- 3
- 101(2), MCA. The District Court in cluded aggravated assault as a forcible felony with in the instructions, g

iving the definition for aggravated assault under § 4 5
- 5
-202(1), MCA. Daniels asked that burglary be added as a forcible felony f or the jury to consider under28

§ 45
- 3
- 102, MCA. 11 The D istrict Court declined to do so , reasoning that there were in sufficient facts to demonstrate that Buddy’s entry into Daniels’ house was unlawful
. ¶45 An individual commits burglary if “he knowingly enters or remains unlawfullyin
an occupied structure with the purpose to commit an offense therein.” S ection 45
- 6
- 204(1), MCA

( emphasis added) . Additionally, “[a] person enters or remains unlawfully in or upon any v

ehicle, occupied structure, or premises when he is not licensed, invited,
or otherwise privileged to do so. . . . The privilege ma y be rev oked at any time by personal communication of notice by the landowner or other authorized person to the entering person.” Section 45

- 6
-201 (1) , MCA. ¶46 Daniels arg

ues enough ev

idence existed to support the theory tha t Buddy unlawfully entered Daniels’ house to support including b urglary in thef

orcible felony instruction. However, a s indicated by the above discussion , the evidence established that Buddy’s entrance into Daniels’ house was lawful for purposes of the jury instruction on JUOF in defense of an occupied structure, and we also hold that Buddy’s entry was not unlawful for purposes of the burglary statute. “ T o constitute a burglary the nature of the entry must itself be a trespass.” State v. Feldt , 239 Mont. 398, 400, 781 P.2d 255, 256 (1989)
. Daniels concede sthat “Buddy was on the lease , ” and the evidence indicated that the family me mbers had leave to be in both houses. While Buddy may have committed

11 Section 45
- 3
- 102, MCA, provides “[a] person is justified in the use of force or threat to use f orce against another when and to the extent that hereasonably believes that suchconduct is necessary to defend himself or another against such other’ s imminent use of unlawful force. However, heis justified in the use of force likely to cause death or s erious bodily harm only if he reasonably believes that suchf orce is n ecessary to prevent imminent death or serious bodily harm to himself

or another or to prevent the commission of a forcible felony .” (Emphasis added.)29

unlawful acts that night, he did not commit burglary. His entry was not contingent upon Daniels’ permission , and by his words, Daniels could not transform Buddy’s lawful presence into a trespass. The District Court correctly denied Daniels’ proffered instruction on burglary as a forcible felony. ¶47 Affirmed. /S/ JIM RICE
We concur: /S/ MIKE McGRATH /S/ PATRICIA COTTER /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS