No. 87-181 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsDONALD ALLEN KINNEY, JR., 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and f0.r the County of Missoula, 

The Honorable Douglas Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

J. Dirk Beccari, Missoula, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Paulson, Asst. Atty. General, Helena 

Robert Deschamps, 111, County Attorney, Missoula, 

Montana; Betty T. Wing, Deputy County Atty., Missoula 

Submitted on Briefs: Dec. 31, 1987 

Decided: February 10, 1988 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Defendant/appellant Donald A. Kinney (Kinney) appeals 

his conviction by jury and judgment by the Fourth Judicial 

District Court, Missoula County, on the offense of drivi-ng 

under the influence (DUI) pursuant to S 61-8-401, MCA et seq. 

Kinney claims he was unfairly prejudiced by the State's 

introduction into evidence of prior convictions of DUI. We 

affirm. 

The only issue we have before us is whether the 

District Court erred in allowing the State to introduce 

evidence of Kinney's prior convictions for DUI. 

We initially note that appellant has included only a 

partial transcript on this appeal. There is no notice in the 

file as required pursuant to Rule 9(b), M.R.App.P. We are 

limited on the facts in this review because of lack of 

information concerning the circumstances of the arrest. 

Further, the partial transcript causes problems in 

determining the issue at bar, admissibility of the prior 

convictions, due to a lack of the District Court's 

substantive rulings. 

According to the information filed February 20, 1986, 

Kinney was charged with three counts. Count I charged Kinney 

with the offense of DUI, third or subsequent offense, a high 

misdemeanor under 5 61-8-401, MCA; Count I1 charged him with 

operating a motor vehicle with improper license plates 

pursuant to S 61-3-301, MCA; and Count I11 charged Kinney 

with operating a motor vehicle with a revoked driver's 

license under § 61-5-212, MCA. 

The affidavit and motion for leave to file information 

stated that Missoula County Deputy Steve Peterson stopped 
Kinney for speeding on January 25, 1986. Peterson smelled 

alcohol on Kinney's breath and requested performance of a 

number of field sobriety tests which Kinney failed. Kinney 

was arrested and taken to the police department for 

processing. He refused a blood alcohol test. When asked if 

he had been drinking, Kinney replied that he had. When asked 

if he was "under the influence," he stated, "naturally." 

At an April 3, 1986 omnibus hearing, the State gave 

Kinney notice that it intended to introduce evidence of 

previous convictions pursuant to Rule 404, M.R.Evid. A 

checklist at the omnibus hearing required the State to file 

formal notice as required under State v. Just (1979), 184 

Mont. 262, 602 P.2d 957, by ~pril 18, 1986. This notice was 

never filed and on November 20, 1986, the District Court 

granted Kinney a motion in limine disallowing the State from 

introducing any evidence of the prior convictions. 

Kinney originally entered a plea of not guilty to all 

three counts but changed the plea to guilty on all counts 

except driving under the influence on November 20, 1986. 

Trial occurred November 20 and 21, 1986. At trial, the 

following testimony was elicited from Kinney: 

[On direct examination by defense 

counsel] : 

Q. Are you familiar with the term "under 

the influence," Mr. Kinney? 

A. I am now, yes. 

Q. I'm going to ask you the critical 

question. Were you under the influence 

of alcohol at the time you were arrested? 

A. I don't believe so. 
0. You're quite sure? 

A. Yes. 

Q. Do you recall when I was talking to 

the jury earlier and I explained the 

difference between "under the influence" 

or "having one drink and driving under 

the inf 1-uence?" 

A. Yes. 

Q. When the officer asked you if you 

were under the influence, were you or 

were you not assuming that "under the 

influence" meant just having a sip of 

beer? 

[Prosecutor]: Objection, leading the 

witness, Your Honor. 

[The court]: Sustained. Rephrase your 

question. 

Q. [Defense Counsel] : Why did you tell 

the officer you were under the influence, 

when obviously from your testimony, you 

did not have very many beers? 

A. Well, I didn't understand what "under 

the influence" meant. I thought even if 

you took like a teaspoon full of alcohol, 

you'd be under the influence since you 

had the alcohol in your system. 

[On cross-examinati-on, Kinney testified 

as follows] : 

Q. [Prosecutor] I guess I will rephrase 

may question and ask you to answer mv 
question. My question is you just 

testified you do not understand the term, 

"under the influence." My question to 

you is, is that the reason why you 

answered the officer in response to his 

question, "Naturally?" 

A. Yes. 

[Defense Counsel] : Your Honor, I think 

he should be allowed to explain that 

question more. The first time [the 

prosecutor] asked that he had begun to 

answer by explanation. 

[The court] : Did you have more of an 

answer you wanted to give? 

A. Yes. The reason I answered, 

"Naturally," is because the previous 

question was, "Had I been drinking?" And 

the next question was, "Was I under the 

influence?" And I didn't understand what 

the term meant, so I said, "Naturally." 

Q. [Prosecutor] : Mr. Kinney , your 

testimony has been that you don't 

understand the meaning of "under the 

influence of alcohol, " is that correct? 

A. I didn't at the time, I do now. 

Q. Mr. Kinney, isn't it also true that 

you have two prior convictions before 

this incident for driving under the 

influence of alcohol? 

A. Yes. 

[No objection was made to the question 

and there was no motion to strike the 

answer. 1 
The general rule is that failure to timely object or 

make a motion to strike does not preserve the record for 

claiming error on appeal. Rule 103, M.R.Evid., states that 

"[elrror may not be predicated upon a ruling which admits 

evidence unless . . . a timely objection or motion to strike 

appears of record . . . " See, Clark v. Norris (Mont. 1987), 

734 P.2d 182, 188, 44 St.Rep. 444, 450; Poindexter & Orr etc. 

Co. v. Oregon R.R. Co. (1905), 33 Mont. 338, 83 P. 886. 

As evidenced in the partial transcript, however, the 

District Court, on the following day of trial, let defense 

counsel object on the record to the questioning regarding the 

prior convictions. Due to the ruling of the District Court 

we will consider the evidence as if the objection had been 

timely made. 

At the close of the trial, the District Court properly 

instructed the jury on prior convictions: 

The State has offered evidence that the 

defendant at another time engaged in 

other crimes. That evidence was not 

admitted to prove the character of the 

defendant in order to show he acted in 

conformity therewith. The only purpose 

of admitting that evidence was to show 

knowledge or absence of mistake or 

accident. You may not use that evidence 

for any other purpose. 

Kinney claims the District Court erred when it allowed 

questioning regarding the prior DUI conviction evidence 

because it was inadmissible under Rule 609, M.R.Evid., and 

the State violated the notice requirements of State v. Just, 

supra. Kinney claims his character was degraded in 

contravention of S 26-2-302, MCA, when the prosecutor asked 

him about his prior DUI convictions. This statute is 

cross-referenced with Rule 609, M.R.Evid., which states: 
"For purpose of attacking the credibility of a witness, 

evidence that he has been convicted of a crime is not 

admissible." 

Rule 404(b), M.R.Evid., also deals with the question of 

when prior conviction evidence is admissible. It states: 

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 therewith. It may, 

however, be admissible for other 

purposes, such as proof of motive, 

opportunity, intent, preparation, plan, 

knowledge, identity, or absencg of 

mistake or accident. (Emphasis added.) 

Prior conviction evidence is generally admissible in 

two ways. The first, requires compliance with the standards 

set out in State v. Just, supra. Alternatively, however, 

when the defendant puts before the jury the issue of his 

character or misguides the jury by statements of his good 

moral attributes, he "opens the door" and the prosecution may 

introduce evidence of prior crimes, wrongs or acts. 

We have stated that the trial court has wide discretion 

in determining whether previous conviction evidence should be 

allowed. Absent an abuse of discretion, the Court will.. not 

overturn a District Court's weighing of the danger of 

prejudice to the defendant against the probative value of the 

prior conviction evidence. Rule 403, M.R.Evid.; State v. 

Pease (Mont. 1986), 724 P.2d 153, 162, 43 St.Rep 1417, 1428; 

State v. Austad (1982), 197 Mont. 70, 83, 641 P.2d 1373, 

1380. 

In Austad, supra, we affirmed the District Court when 

it allowed evidence of a previous conviction even though the 

strict procedure of Just was not followed. The defendant in 

Austad, stated that he would not have committed the crime of 
burglary because it was not in his nature. The prosecution 

then presented evidence that the defendant had indeed 

previously been convicted of burglary. We stated that 

despite the defendant's answer being elicited from the State, 

the pertinent trait of the defendant's character was thrust 

before the jury and therefore the defendant's statement came 

" [w] ithin the exception of Rule 404 (a) (1) , and open [edl the 

door for the State to present rebuttal evidence of a 

pertinent trait of the character of the accused. " Austad, 

641 P.2d at 1383. 

The defendant in Austad primarily relied on Rule 609, 

M.R.Evid., just as Kinney is in this case. Under the facts 

of this case, Rule 404(b) is also applicable. 

Here, the evidence of defendant's prior 

felony conviction was admitted to prove 

not that defendant committed the crimes 

of which he was charged, but that. 

defendant lied under oath. 

Austad, 641 P.2d at 1384. 

In the instant case, the evidence was not presented by 

the State to prove that, because Kinney had previously 

committed the offense of DUI that he would commit it again, 

but instead the previous crime evidence was allowed to prove 

that he had knowledge of what "under the influence" meant. 

As we said in Austad, this type of case falls outside of Rule 

609 and the strict procedural requirements of Just, supra, 

and its progeny of case law. 

Here, on cross-examination, defendant 

answered a question with an unnecessary, 

self-serving statement which he knew to 

be untrue, intended to place him in a 

better light with the jury. 
Austad, 641 P.2d at 1384. 

We stated that Austad's testimony "open[ed] the door" 

for the state to present rebuttal evidence. The testimony in 

this case shows Kinney also made statements which were 

self-serving and placed him in a better light with the jury 

on direct examination. Specifically, when Kinney said he was 

not familiar with the term "under the influence" at the time 

of the arrest and did not believe he was under the influence 

when he was arrested, he opened the door to evidence of the 

previous DUI convictions. 

Once the issue is presented to the jury by the 

defendant, the prosecution may introduce evidence of prior 

crimes. In State v. Wilson (Mont. 1981), 631 P.2d 1273, 

1277, 38 St.Rep. 1040, 1044, we stated: 

If [a defendant in a criminal case] takes 

the stand and testifies in his own 

defense, his credibility may be impeached 

and his testimony assailed like that of 

any other witness, and the breadth of his 

waiver is determined by the scope of 

relevant cross-examination. "[Hle has nc 

right to set forth to the jury all the 

facts which tend in his favor without 

laying himself open to a 

cross-examination upon those facts." . . . Brown v. United States (1958), 356 

U.S. 148, 154-155, 78 S.Ct. 622, 626, 2 

L.Ed.2d 589, 596-597. 

Kinney's statements fall precisely under the exception 

stated in Rule 404(b) that prior crimes can be presented to 

prove defendant's knowledge. Having been convicted of DUI on 

a number of prior occasions, Kinney undoubtedly had knowledge 

of what "under the influence" encompassed. In his testimony, 

Kinney attempted to misguide the iury by claiming he did not 

understand the term. 
When a defendant understands the intricacy of proving a 

legal term of art and attempts through his own testimony to 

subvert proof of this element, he has clearly shown 

knowledge. There is no question that Kinney's knowledge was 

relevant in this case and fell into the category of 

exceptions stated in 404 (b) . Under the facts of this case, we hold that the District 

Court did not abuse its discretion by allowing evidence of 

the prior DUI convictions. 

Affirmed . 

We concur: /'