No. 88-594 

IN THE STJPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

Plaintiff and. Respondent, 

-vsDENNY DEAN SHAW, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Custer, 

The Honorable Nat Allen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John S. Forsythe, Forsyth, Montana 

For Respondent : 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Robert F.W. Smith, Asst. Atty. General, Helena 

Mr. Keith D. Haker, County Attorney, Miles City, 

.- Montana ".* 

Submitted: May 11, 1989 

Decided: June 2, 1989 . . U 

i. .I 

Clerk 
Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

The defendant, Denny Shaw, appeals his conviction from 

the District Court of the Sixteenth Judicial District, Custer 

County. Following a jury trial, the defendant was found 

guilty of felony theft and burglary and was sentenced to 10 

years at the Montana State Prison. We reverse. 

The defendant's brief presents seven issues for our 

review. Since we conclude that reversible error has been 

committed with respect to one of those issues, the remaining 

six will not be discussed. We consider whether i-t was error 

to allow the State to impeach a defense witness by asking if 

he had been convicted of a crime and asking him to disclose 

what crimes he had committed in view of Rule 609, M.R.Evid. 

On July 21, 1987, John Helm of Miles City, contacted the 

Custer County Sheriff's Office to report the theft of a skill 

saw, some tools, a .22 caliber rifle, two cameras, and miscellaneous groceries. He later reported that a rototiller 

was missing as well. On August 5, 1987, an anonymous woman 

called the Custer County Sheriff's Office to report that 

groceries stolen from the Helm residence were taken to the 

James Carpenter residence by Mike Johnson. 

Mike Johnson later gave a statement to the Custer County 

Deputy Sheriff concerning the offenses. Johnson stated that 

the Helm burglary was suggested by Lorna Kidd at a drinking 

party attended by Lewis Carpenter, Rose Carpenter, Carol 

Carpenter Johnson and Gary Johnson. The evidence established 

that the defendant was not present at that party. Mike 

Johnson, his brother Gary, and his wife Carol then traveled 

to a bar where they met a person named Danny or Denny Shaw. 

Mike Johnson testified that he and Denny Shaw had commjtted 

the burql-ary . 
No physical evidence was presented by the State linking 

the defendant to the crime. Prior to trial, several of the 

State's witnesses were shown pictures of Denny Shaw, whom 

they identified as the man who committed the burglary with 

Mike Johnson. At trial, those witnesses identified the 

defendant with varying degrees of certainty. 

During the defendant's presentation of his case, a bar 

owner was called to testify that it was not the defendant who 

sold him the .22 rifle which was allegedly the same rifle 

stolen from the Helm residence. The bar owner's testimony 

was corroborated by another defense witness, Charles 

Schoonover, who was at the bar the night the gun was brought 

in. Mr. Schoonover testified that he wasn't sure who brought 

the gun into the bar, but that it was not the defendant. He 

testified that he had known the defendant for ten to fifteen 

years. 

On cross examination of Mr. Schoonover the State engaged 

in the following inquiry: 

Q. Have you ever been convicted of a crime? 

Mr. ChrFstF: Your Honor, I'm going to object to 

that question. I don' t believe it's within the 

scope of cross-examination. 

Mr. Corbin: I believe that has to be within the 

scope, Your Honor. 

The Court: It's cross-examination. Overrl~led. 

Q. (by Mr. Corhin) Have you? 

A. Yeah. 

Q. What crime? 

A. Intimidation. 

Q. Any other crimes? 
A. Assault. 

Q. Anything involving guns? 

The defendant argues that the foregoing crossexamination is impermissible as a method of impeachment under 

Rule 609, M.R.Evid., which states: 

For the purpose of attacking the credibility of a 

witness, evidence that he has been convicted of a 

crime is not admissible. 

The State argues that the introduction of such evidence 

was harmless error because Mr. Schoonoverls testimony merely 

corroborated that of the bar owner and added nothing to the 

defendant1 s case. Despite the substance of the witness " 

testimony, this Court will not condone prosecutorial conduct 

which is in clear violation of Rule 609, M.R.Evid. We note 

that generally, it is the defendant who objects to the introduction of other crimes evidence. See State v. Just (19791 , 

184 Mont. 262, 602 P.2d 957; State v. Lave (1977), 174 Mont. 

401, 571 P.2d 97; State v. Heine (1976), 169 Mont. 25, 544 

P.2d 1212; State v. Jensen (1969), 153 Mont. 233, 455 P.2d 

631. In that circumstance, such evidence is inadmissible 

unless it falls within an exception of Rule 404(b), 

M.R.Evid.: 

Other crimes, wrongs, acts. 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 absence of mistake or 

accident. 

Mr. Schoonover's testimony as to his crimes failed to reveal 

a motive, opportunj.ty, intent, preparation, plan, knowledge, 
identity, or absence of mistake or accident. As a result the 

evidence was not admissible as an exception under Rule 

484 (b) , M.R.Evid. 

The record fails to disclose any appropriate reason for 

the State's inquiry as to the prior criminal conduct of Mr. 

Schoonover. Clearly it was not something inadvertent in 

nature, as the defendant's attorney objected to the question 

but was overruled by the trial court. We conclude that the 

intention on the part of the State was to discredit the 

witness by showing that he had been engaged in crimes of 

intimidation and assault, and that the intimidation crime 

involved guns. We further conclude that the aim on the part 

of the State was to improperly impugn the character of the 

defendant and thereby suggest a greater likelihood of guilt 

of the crimes with which he was charged. We will not tolerate this intentional and significant evasion of our r~zles. 

We conclude that the prosecution's inquiry clearly was 

improper under Rule 609, M.R.Evid., and that none of the 

exceptions stated in Rule 404(b), M.R.Evid. applied. We hold 

that it was reversibl-e error for the District Court to all-ow 

this testimonv. 

The judgment of con~riction is reversed and the case is 

remanded for new trial. 

We Concur: _/--7 
sit&%ng for ?II,c~' -- ' 

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