No. 87-181
INTHE 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 theFourth JudicialDistrict, In and f0.rthe 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, 1988Mr. 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 ofKinney'sprior convictions forDUI. We initially note that appellant has included only a partial transcripton this appeal. There isno 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 substantiverulings. According to the information filed February 20, 1986, Kinneywas chargedwith three counts. Count IchargedKinney 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 stoppedKinney 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 thathe 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 noticewas
never filed and on November 20, 1986, the District Court granted Kinney a motion in limine disallowing the State from introducingany evidenceof theprior 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 followingtestimonywas elicited fromKinney: [On direct examination by defense counsel]: Q. Are you familiarwith the term "under the influence," Mr. Kinney?
A. Iam now,yes.

Q. I'm going to ask you the critical question. Were you under the influence of alcohol at the timeyouwere arrested?
A. Idon'tbelieve 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 inf1-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. [DefenseCounsel]: Why did you tell the officeryouwere under the influence, when obviously from your testimony, you did not have verymany beers?
A. Well, Ididn'tunderstandwhat "under the influence"meant. I thought even if you took like a teaspoon fullof 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 Iwill rephrase may question and ask you to answer mv

### question. My question is you just testifiedyoudonot 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 answerby explanation.

[The court]: 

### Did you have more of an answeryouwanted to give?
A. Yes. The reason I 

### answered, "Naturally," is because the previous questionwas, "Had I

### been drinking?" And the next question was, "Was 

### I under the influence?" And I

### didn't understandwhat 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'tat the time, I

### donow. 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,Clarkv. Norris (Mont. 1987), 734P.2d 182,188, 44 St.Rep. 444,450; Poindexter & 

### Orr etc. Co. v. OregonR.R. Co. (1905),33Mont. 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 timelymade. At the close of the trial, the District Courtproperly instructed the jury onprior 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 otherpurpose. 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 Statev. 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 thedoor" and theprosecutionmay introduceevidence ofprior crimes, wrongs or acts. We have stated that the trial court haswide discretion in determining whetherprevious convictionevidence shouldbe 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 strictprocedure of Justwas not followed. The defendant in Austad, stated that he would not have committed the crime ofburglary 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'sanswer being elicited from the State, the pertinent trait of the defendant's characterwas 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, 641P.2d at 1384. In the instant case, the evidencewas 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 evidencewas 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 lightwith the jury.Austad, 641P.2d at 1384. We stated that Austad's testimony "open[ed] the door" for the state to present rebuttalevidence. The testimony in this case shows Kinney also made statements which were self-serving and placed him in a better light with the jury
ondirect examination. Specifically, when Kinney said hewas 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 previousDUI 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 [adefendant 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 ofhis 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'sknowledge. Having been convicted of DUI on a number ofprior occasions,Kinney undoubtedly had knowledge ofwhat "under the influence" encompassed. Inhis testimony, Kinney attempted to misguide the iuryby claiming he did not understand the term.

### When adefendant understands the intricacyofproving 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'sknowledge 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 theprior DUI convictions. Affirmed

# .

We concur: 

### /'