DA 06-0001 

 IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2008 MT 55 

STATE OF MONTANA, 

 Plaintiff and Appellee, 

 v 

BRANDEN DALE GITTENS, 

 Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and For the County of Cascade, Cause No. CDC-04-392 

Honorable Kenneth R. Neill, Presiding Judge 

COUNSEL OF RECORD: 

For Appellant: 

Matthew T. McKittrick, Cascade County Public Defender, Great Falls, 

Montana 

For Appellee: 

Hon. Mike McGrath, Montana Attorney General, Joslyn M. Hunt, 

Assistant Attorney General, Helena, Montana 

Brant Light, Cascade County Attorney, Joel Thompson, Deputy County 

Attorney, Great Falls, Montana 

Submitted on Briefs: November 9, 2006 

 Decided: February 15, 2008 

Filed: 

__________________________________________ 

Clerk 
Justice James C. Nelson delivered the Opinion of the Court. 

¶1 Branden Dale Gittens was convicted in the District Court for the Eighth Judicial 

District, Cascade County, of one felony count of criminal possession of dangerous drugs 

with intent to distribute and one misdemeanor count of criminal possession of drug 

paraphernalia. He appeals from these convictions and from the denial of his motion to 

suppress. We affirm. 

¶2 The issues on appeal are as follows: 

1. Did the District Court err in denying Gittens’ motion to suppress statements, 

based on the State’s alleged failure to show that Gittens was properly Mirandized? 

2. Did the District Court err in admitting testimony that Gittens claimed was 

inadmissible evidence of other crimes, wrongs, or acts under M. R. Evid. 404(b)? 

FACTUAL AND PROCEDURAL BACKGROUND 

¶3 On September 24, 2004, Cascade County Sheriff’s Deputy Thomas Dalton made a 

traffic stop in Black Eagle, Montana. Dalton requested backup and Deputy Engelberto 

Ruiz arrived on the scene. The driver stated that he was going to Gittens’ house. Dalton 

was aware that Gittens had warrants issued for him in the past, so Dalton ran a warrant 

check. After discovering that Gittens had active county warrants for his arrest, Dalton 

and Ruiz allowed the driver to proceed, and they followed the vehicle to Gittens’ 

residence. While Ruiz went to the front door of the house, Dalton made contact with 

Gittens outside the back door of the house. Dalton advised Gittens that there was a 

warrant out for his arrest, and Dalton then placed Gittens under arrest. 

 2
¶4 Dalton could smell the odor of burning marijuana coming from Gittens’ person. 

Dalton requested and received permission from Gittens to search the house. Two other 

individuals, Richard Aguon and Alex Smithson, were also present in the house, although 

Smithson left soon after. Ruiz went to search the basement and discovered a 316.4-gram 

brick of marijuana encased in a cooler. Ruiz also located a number of bongs, marijuana 

pipes, plastic baggies, a scale, several issues of “High Times” magazine, and other 

assorted drug paraphernalia. Three of these items bore the words “B Dogg,” which was 

Gittens’ nickname. After discovering the brick of marijuana, Ruiz notified Dalton, and 

Dalton came down to the basement along with Gittens. Dalton observed that Gittens 

started to shake and appeared visibly upset after seeing what Ruiz had discovered. Upon 

searching the remainder of the house, Ruiz discovered additional drug paraphernalia in 

Gittens’ bedroom and a “party hookah”1

 inside a box in the living room. 

¶5 Dalton contacted the shift supervisor, Sergeant Scott Van Dyken, who arrived a 

short while later. Van Dyken recommended that Dalton bring Gittens out of the house to 

videotape Dalton’s reading of Gittens’ Miranda rights and to memorialize that Gittens 

had consented to the search of his house. Dalton then took Gittens outside to the patrol 

car to read him his rights. The patrol car had an on-board video camera with audio 

recording capabilities; however, as Dalton later explained, due to technical difficulties, 

the microphone did not pick up the conversation. In regard to the video, Gittens asserted 

in his motion to suppress that “the videotape does not adequately show the face of the 

 

1 Ruiz described the “party hookah” as a large bong with “three tubes so three people can smoke 

at once . . . .”

 3
person being questioned by the law enforcement officer.” Dalton testified at the 

suppression hearing that Gittens agreed to talk to him and agreed to waive his rights. 

Dalton further testified that Gittens admitted to giving away and trading marijuana for 

“stuff.” Van Dyken also testified as to the equipment’s malfunction and that he was 

present when Dalton advised Gittens of his Miranda rights and began questioning him. 

Van Dyken later asked Gittens several questions and also testified that Gittens stated that 

he traded and gave marijuana to other people. 

¶6 The State charged Gittens, by Information, with Count I—criminal possession of 

dangerous drugs with intent to distribute, a felony in violation of § 45-9-103, MCA, and 

Count II—criminal possession of drug paraphernalia, a misdemeanor in violation of 

§ 45-10-103, MCA. Gittens pleaded not guilty to the charges. On December 27, 2004, 

Gittens filed a motion to suppress all the statements he made following his arrest on the 

ground that the State had failed to demonstrate that he was properly Mirandized. The 

State filed a response to Gittens’ motion, and the District Court held a suppression 

hearing on February 8, 2005. After hearing testimony from Deputy Dalton, Deputy Ruiz, 

Sergeant Van Dyken, and Gittens, the District Court denied the motion to suppress. 

¶7 On March 11, 2005, the State filed an Amended Information retaining the original 

two counts, but adding an alternative charge to Count I, namely, criminal possession of 

dangerous drugs, a felony, in violation of § 45-9-102, MCA. The matter went to trial on 

September 26, 2005, and lasted two days. Prior to voir dire, defense counsel made a 

motion in limine under M. R. Evid. 404(b) to prevent the State from introducing Gittens’ 

statements to the officers that he sometimes traded marijuana for “stuff.” The court 

 4
denied Gittens’ motion, and the jury heard testimony on this matter. The jury also heard 

testimony from Dalton, Ruiz, Van Dyken, Gittens’ former roommate Aguon, and State 

Crime Lab chemist Bahne Klietz. The following day, the jury found Gittens guilty of one 

felony count of criminal possession of dangerous drugs with intent to distribute and one 

misdemeanor count of criminal possession of drug paraphernalia. 

¶8 The District Court sentenced Gittens to ten years at the Montana State Prison with 

three years suspended on Count I, and six months in the Cascade County Detention 

Center on Count II, the two sentences to run concurrently. This appeal followed. 

STANDARD OF REVIEW 

¶9 We review a district court’s decision to grant or deny a motion to suppress to 

determine whether the court’s underlying findings of fact are clearly erroneous and 

whether the court correctly interpreted and applied the law to those findings. State v. 

Lewis, 2007 MT 295, ¶ 17, 340 Mont. 10, ¶ 17, 171 P.3d 731, ¶ 17. “A trial court’s 

findings are clearly erroneous if they are not supported by substantial credible evidence, 

if the court has misapprehended the effect of the evidence, or if our review of the record 

leaves us with a definite and firm conviction that a mistake has been made.” Lewis, ¶ 17. 

¶10 We generally review a district court’s evidentiary rulings for an abuse of 

discretion. State v. McOmber, 2007 MT 340, ¶ 10, 340 Mont. 262, ¶ 10, 173 P.3d 690, 

¶ 10. 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. 

McOmber, ¶ 10. “Notwithstanding this deferential standard, however, judicial discretion 

must be guided by the rules and principles of law; thus, our standard of review is plenary 

 5
to the extent that a discretionary ruling is based on a conclusion of law. In such 

circumstance, we must determine whether the court correctly interpreted the law.” 

McOmber, ¶ 10 (quoting State v. Price, 2006 MT 79, ¶ 17, 331 Mont. 502, ¶ 17, 134 P.3d 

45, ¶ 17). 

DISCUSSION 

¶11 Issue One. Did the District Court err in denying Gittens’ motion to suppress 

statements, based on the State’s alleged failure to show that Gittens was properly 

Mirandized?

¶12 The Fifth Amendment to the United States Constitution and Article II, Section 25 

of the Montana Constitution provide that people have the right not to incriminate 

themselves. In re Z.M., 2007 MT 122, ¶ 39, 337 Mont. 278, ¶ 39, 160 P.3d 490, ¶ 39. 

The Supreme Court addressed the right against self-incrimination in Miranda v. Arizona, 

384 U.S. 436, 86 S. Ct. 1602 (1966). The Supreme Court stated that “the privilege is 

fulfilled only when the person is guaranteed the right ‘to remain silent unless he chooses 

to speak in the unfettered exercise of his own will.’ ” Miranda, 384 U.S. at 460, 86 S. Ct. 

at 1620 (quoting Malloy v. Hogan, 378 U.S. 1, 8, 84 S. Ct. 1489, 1493 (1964)). “The 

Miranda Court held that the prosecution may not use statements that stem from a 

custodial interrogation of a defendant unless the defendant is warned, prior to 

questioning, that he has a right to remain silent, that any statement he does make may be 

used as evidence against him, and that he has a right to the presence of an attorney.” 

State v. Olson, 2003 MT 61, ¶ 13, 314 Mont. 402, ¶ 13, 66 P.3d 297, ¶ 13 (citing 

Miranda, 384 U.S. at 444, 86 S. Ct. at 1612). 

 6
¶13 Section 46-6-107, MCA, which is a codification of the Supreme Court’s holding in 

Miranda, states, in pertinent part: 

Before interrogating a person who is in custody, a peace officer shall 

inform the person that the person has the right to remain silent, that 

anything the person says can be used against the person in a court of law, 

that the person has the right to speak to an attorney and to have an attorney 

present during any questioning, and that if the person cannot afford an 

attorney, one will be provided for the person at no cost to the person. 

The Miranda warnings are required where the person is subject to a custodial 

interrogation. See State v. McKee, 2006 MT 5, ¶ 28, 330 Mont. 249, ¶ 28, 127 P.3d 445, 

¶ 28; State v. Munson, 2007 MT 222, ¶ 20, 339 Mont. 68, ¶ 20, 169 P.3d 364, ¶ 20. 

¶14 An individual may waive his or her Fifth Amendment rights only if the waiver is 

made voluntarily, knowingly, and intelligently. State v. Cassell, 280 Mont. 397, 400, 932 

P.2d 478, 480 (1996) (citing Miranda, 384 U.S. at 444, 86 S. Ct. at 1612); State v. 

Lucero, 151 Mont. 531, 538, 445 P.2d 731, 735 (1968), abrogated on other grounds, 

State v. Reavley, 2003 MT 298, 318 Mont. 150, 79 P.3d 270. The State has the burden to 

prove that the waiver of the constitutional right against self-incrimination was 

voluntarily, knowingly, and intelligently made. Lucero, 151 Mont. at 538, 445 P.2d at 

735. 

¶15 The police are not required to tape-record or create an audio-visual record of 

Miranda warnings and the detainee’s waiver. State v. Grey, 274 Mont. 206, 213, 907 

P.2d 951, 955 (1995). However, we have encouraged law enforcement officers “to 

preserve a tangible record of advising defendants of their rights and a defendant’s waiver 

 7
of those rights.” Cassell, 280 Mont. at 403, 932 P.2d at 481. Indeed, this Court held in 

Grey that 

in the context of a custodial interrogation conducted at the station house or 

under other similarly controlled circumstances, the failure of the police 

officer to preserve some tangible record of his or her giving of the Miranda

warning and the knowing, intelligent waiver by the detainee will be viewed 

with distrust in the judicial assessment of voluntariness under the totality of 

circumstances surrounding the confession or admission. 

Grey, 274 Mont. at 214, 907 P.2d at 956. Likewise, we stated in State v. Lawrence, 285 

Mont. 140, 948 P.2d 186 (1997), that “law enforcement officers should preserve a 

tangible record of the giving and waiver of Miranda when the means to do so are readily 

available. Failure to do so will result in extreme disfavor with the Court in later 

determining the voluntariness of a Miranda waiver.” Lawrence, 285 Mont. at 156, 948 

P.2d at 195. 

¶16 Gittens asserts that the State failed to show that he was properly Mirandized. In 

particular, Gittens contends that the absence of any “recorded proof” of the giving of the 

Miranda warnings and his purported waiver of his Miranda rights raises numerous 

questions about the interrogation. According to Gittens, “law enforcement did have 

means readily available to record Miranda warnings and any subsequent waiver of those 

rights” and “[t]here were no exigent circumstances that would have justified not 

recording any purported Miranda warning and subsequent waiver.” Thus, he argues, 

“law enforcement should have properly recorded any purported Miranda warning and 

subsequent waiver.” Gittens claims that without this recording, the State lacks clear 

evidence to show that he was Mirandized and that he knowingly, intelligently, and 

 8
voluntarily waived his Miranda rights. Accordingly, Gittens argues that the District 

Court erred in not suppressing his statements. 

¶17 The State argues that the District Court properly denied Gittens’ motion to 

suppress. While the State acknowledges the foregoing holding of Grey, the State asserts 

(citing Cassell and Lawrence) that the only requirement is that “the officers establish to 

the district court’s satisfaction that the Miranda warnings were properly given, that no 

impermissible tactics were used, and that under the totality of circumstances the 

confession was voluntary.” The State contends that these requirements were met by the 

testimony of Deputy Dalton and Sergeant Van Dyken. 

¶18 At the outset, we note that two facets of Gittens’ position on appeal circumscribe 

our analysis. First, Gittens focuses entirely on the sufficiency of the State’s proof that he 

was Mirandized and waived his Miranda rights. He does not expressly claim or present 

an argument that his statements were otherwise involuntary. See State v. Jones, 2006 MT 

209, ¶¶ 20-21, 333 Mont. 294, ¶¶ 20-21, 142 P.3d 851, ¶¶ 20-21 (Whether an accused 

was advised of his or her Miranda rights is but one factor to be considered in determining 

whether a confession or admission was given involuntarily.). 

¶19 Second, Gittens’ motion to suppress was directed at “all statements” he made 

“after his arrest on September 24, 2004.” Likewise, on appeal, Gittens asserts that “any 

statements” he made “after his arrest” should have been suppressed. According to 

Dalton, he placed Gittens under arrest upon making contact with Gittens in the back yard, 

but did not read Gittens the Miranda warnings until after the search of the house. Yet, 

Gittens does not identify any particular statements that he made in the interim between 

 9
his arrest and the Miranda warnings. More importantly, he does not offer an analysis of 

whether any such statements were volunteered, see e.g. State v. Saxton, 2003 MT 105, 

¶ 39, 315 Mont. 315, ¶ 39, 68 P.3d 721, ¶ 39, or made pursuant to a “custodial 

interrogation,” see Munson, ¶¶ 21-25. Rather, as just noted, his argument is directed at 

the sufficiency of the State’s proof that he was Mirandized and that he waived his 

Miranda rights. Accordingly, we will not consider the matter of any “interim statements” 

further. See In re Marriage of McMahon, 2002 MT 198, ¶ 6, 311 Mont. 175, ¶ 6, 53 P.3d 

1266, ¶ 6; M. R. App. P. 12(1)f. Our analysis will focus specifically on whether the 

District Court correctly concluded that the State’s proof was sufficient. 

¶20 Turning now to that question, we disagree with Gittens’ suggestion that the lack of 

“recorded proof” of the purported reading and waiver of his Miranda rights compels the 

suppression of his statements. Gittens reads our cases too broadly. Indeed, we have 

explicitly recognized that circumstances may preclude the creation of a tangible record. 

See e.g. Grey, 274 Mont. at 214, 907 P.2d at 956 (“We recognize, as one example, that an 

officer Mirandizing a suspect in the field at the time of arrest, may not be able to preserve 

a tangible record of his or her giving of the warning or of the accused’s waiver.”). Thus, 

our statements that the failure to preserve a tangible record will result in “distrust” and 

“extreme disfavor” have been directed at situations in which the means to preserve a 

tangible record were readily available, but the officers failed to avail themselves of those 

means. See Lawrence, 285 Mont. at 156, 948 P.2d at 195 (“[L]aw enforcement officers 

should preserve a tangible record of the giving and waiver of Miranda when the means to 

do so are readily available.” (emphasis added)); Grey, 274 Mont. at 214, 907 P.2d at 956 

 10
(“[I]n the context of a custodial interrogation conducted at the station house or under 

other similarly controlled circumstances, the failure of the police officer to preserve 

some tangible record . . . will be viewed with distrust.” (emphasis added)). 

¶21 Moreover, while we have said that the failure to preserve a tangible record when 

the means to do so are readily available results in extreme disfavor with the Court, we 

have never said that the lack of a tangible record mandates suppression of the detainee’s 

statements. Rather, this is simply one factor that weighs heavily against the State in 

meeting its burden. Accordingly, the proper inquiry is whether, based on all of the 

available evidence, the State has met its burden of proving that the officer read the 

detainee his or her Miranda rights and the detainee waived those rights voluntarily, 

knowingly, and intelligently. Accordingly, we will consider whether the District Court 

erred in concluding that the State met its burden of proof in light of all of the available 

evidence. 

¶22 There was a factual dispute between Gittens and the State at the suppression 

hearing as to whether Gittens was Mirandized. Gittens testified that Dalton never advised 

him of his Miranda rights and only asked him, “You know your rights, right?” to which 

Gittens claims he replied, “I guess.” Gittens explained this response as follows: “I kind 

of understood because I’ve been in that situation before, but he didn’t get into -- where he 

was supposed to be.” Gittens alleged that Dalton never got specific. Gittens stated that 

Dalton never offered him a written waiver and that he did not know of his rights because 

he was not informed of them. 

 11
¶23 In contrast, Dalton testified that whenever he advised a suspect of his or her 

Miranda rights, he used a card with the text of the warnings printed on it. Dalton 

confirmed that he used this card when he read Gittens his rights, and Dalton read the text 

of the card into the record at the suppression hearing. The card stated: 

You have the right to remain silent. Anything you say can and will be used 

against you in a court of law. You have the right to talk to a lawyer and 

have your lawyer present while you’re being questioned. If you cannot 

afford to hire a lawyer, one will be appointed to represent you free of any 

cost to you. You can decide at any time to exercise these rights and not 

answer any questions or make any statements. 

Dalton further testified that the card contained a section stating: “Waiver after giving 

Miranda ask, ‘Do you understand each of these rights? And secondly, knowing these 

rights, do you wish to talk to me now?’ ” 

¶24 Dalton explained that after the search of the house and the discovery of the 

marijuana and drug paraphernalia, he took Gittens out to the front of Dalton’s patrol car, 

pulled the Miranda card out of his pocket, read Gittens his rights, and asked him if he 

understood them. Dalton testified that he specifically asked Gittens, “Do you understand 

each of these rights?” and, “knowing these rights, do you wish to talk to me now?” 

Dalton stated that Gittens replied “yes” to both questions. Dalton explained that the 

reason for reading Gittens his rights in front of the patrol car was because the car had a 

video camera and audio recorder and Dalton wanted to record Gittens being read his 

rights. 

¶25 Dalton testified that he believed the audio and video equipment was working and 

it was never his intention not to have audio. When asked at the suppression hearing 

 12
whether he had any explanation for why the audio recorder malfunctioned, Dalton 

explained that the battery in his microphone may have been dead or the microphone may 

have been turned to the wrong channel. Dalton testified that he had every intention of 

getting both the Miranda warning and Gittens’ statement on the tape with audio and 

video. Dalton stated that the reason he did not obtain a written waiver was because he 

believed he was recording the reading of Gittens’ rights, but if he had known the audio 

was malfunctioning, he would have obtained a written waiver. Dalton further testified 

that Gittens followed him voluntarily out to the patrol car, that Gittens never gave any 

indication he did not want to talk to Dalton, that Gittens never availed himself of his 

Miranda rights, and that there was never any indication that his statement was anything 

other than voluntary. 

¶26 Van Dyken testified that he was present when Dalton advised Gittens of his rights 

and interviewed him. Van Dyken confirmed that Dalton took out his Miranda card and 

read Gittens his rights and that Gittens replied affirmatively that he understood his rights 

and was willing to talk to Dalton. Van Dyken indicated that the process was very much 

“by the book.” Van Dyken further remarked that he was not aware the audio had 

malfunctioned and that it was also his intention that the warning and any subsequent 

statement be recorded. 

¶27 After hearing testimony from Dalton, Van Dyken, and Gittens, the District Court 

found that Gittens was in custody and that he was Mirandized. The court further found 

that there was no indication of coercion or inducement. The court found that Gittens was 

 13
not impaired and that he waived his rights voluntarily.2

 In making these findings, the 

court found the officers’ testimony to be credible, whereas it found Gittens’ testimony not 

to be credible. 

It is not this Court’s function, on appeal, to reweigh conflicting evidence or 

substitute our evaluation of the evidence for that of the district court. We 

defer to the district court in cases involving conflicting testimony because 

we recognize that the court had the benefit of observing the demeanor of 

witnesses and rendering a determination of the credibility of those 

witnesses. 

State v. Bieber, 2007 MT 262, ¶ 23, 339 Mont. 309, ¶ 23, 170 P.3d 444, ¶ 23. 

Accordingly, we defer to the District Court’s determination that Dalton’s and Van 

Dyken’s testimony was more credible than Gittens’ testimony. 

¶28 Gittens relies on Grey in making his argument that the District Court erred in 

denying his motion to suppress; however, the facts in Grey can be distinguished from 

those present here. In Grey, we concluded that the police gave mere lip service to the 

Miranda requirements. Grey, 274 Mont. at 213, 907 P.2d at 955. Whereas the officer in 

Grey testified that he could not remember exactly what he told Grey in giving Grey his 

Miranda rights, Dalton specifically recalled that he read Gittens his rights from the card 

Dalton carried with him and that he read from this card when he Mirandized Gittens. In 

Grey, the officer chose not to use a waiver form because “he did not want to jeopardize 

 

2 We note that the District Court did not enter any written findings of fact with respect to 

Gittens’ suppression motion. Rather, the court’s written order simply refers to “the reasons 

stated on the record.” In State v. Stoumbaugh, 2007 MT 105, 337 Mont. 147, 157 P.3d 1137, we 

observed that “a district court’s rendering of findings of fact and conclusions of law from the 

bench can quite easily be inadequate. Without careful drafting, issues can be overlooked and a 

decision issued which is insufficient for appellate review, resulting in remand.” Stoumbaugh, 

¶ 31. We therefore urged the district courts “to resolve factual and legal issues regarding 

suppression by way of a written order.” Stoumbaugh, ¶ 31. We do so again here.

 14
the interrogation.” Grey, 274 Mont. at 213, 907 P.2d at 955. In contrast, Dalton testified 

that the reason he did not obtain a written waiver from Gittens was because he believed 

that the reading of Gittens’ rights and subsequent waiver were being recorded on audio 

and video. Dalton’s and Van Dyken’s testimony reflects that they made a good-faith 

effort to preserve a record of the reading and waiver. In Grey, the police used 

impermissible procedures and tactics, including making false statements, in order to 

obtain Grey’s confession. Grey, 274 Mont. at 212, 907 P.2d at 955. In comparison, the 

hearing testimony supports the District Court’s finding that Dalton and Van Dyken did 

not use coercive tactics, and there is no credible evidence to suggest that Gittens’ 

statements were anything but voluntary. Finally, Dalton and Van Dyken both testified 

that Gittens made an express, verbal waiver of his rights, whereas the officer in Grey

testified that Grey impliedly waived his rights by agreeing to talk with the officers. Grey, 

274 Mont. at 213, 907 P.2d at 955. Grey clearly is factually distinguishable from 

Gittens’ situation. 

¶29 Based on all of the available evidence surrounding the reading and waiver of 

Gittens’ Miranda rights, we hold that the District Court did not err in concluding that the 

State met its burden of showing that those rights were read to Gittens and that he 

voluntarily, knowingly, and intelligently waived them. The District Court found that law 

enforcement officers Mirandized Gittens by way of reading him the Miranda warnings on 

Dalton’s card. The District Court further found that Gittens was not impaired and that he 

waived his rights voluntarily. Substantial credible evidence supports these findings. 

While there is no tangible record of Dalton reading Gittens his rights or the subsequent 

 15
waiver, we are satisfied from all the available evidence that the State’s burden of proof 

was met. Accordingly, we hold that the District Court did not err in denying Gittens’ 

motion to suppress. 

¶30 Issue Two. Did the District Court err in admitting testimony that Gittens 

claimed was inadmissible evidence of other crimes, wrongs, or acts under 

M. R. Evid. 404(b)?

¶31 During trial, the following exchange occurred between the prosecutor and Dalton: 

Q. . . . Okay. Deputies [sic] Dalton, former Deputy Dalton, 

again, did the defendant answer you as to where the marijuana came from? 

A. Yes. 

Q. And what was his response? 

A. That he purchased it from a person from out of town. 

Q. Okay. Did you ask him if he sold the marijuana? 

A. Yes, I did. 

Q. Why? Why did you ask that question? 

A. Because of the scale, the baggies, all indicated, and the large 

amount of marijuana there, the baggies, the scale all indicated to me that it 

was being packaged for resale. 

Q. Okay. And this again is from your training? 

A. That’s correct. 

Q. Did you ask him how he could afford the quantity? 

A. Yes, I did. 

Q. What was his response? 

A. He did not respond. 

Q. Okay. Did you ask him what he did with that quantity? 

A. Yes. He said he gave it to people. He traded it for stuff. And 

he used it for himself personally. 

Q. Okay. So he gave it to people. Did he explain how he gives 

it to them? 

A. He said that he’d throw a party at the house and just let 

people smoke marijuana there at his house, or would just trade the 

marijuana for, again, stuff. He didn’t elaborate what the stuff was. But he 

traded it or gave it away. 

Prior to voir dire, Gittens moved to exclude this testimony on the ground it violated 

M. R. Evid. 404(b). The District Court denied his motion, reasoning that Gittens’ 

 16
statement that he “traded [the marijuana] for stuff” was “a part of this transaction.” In 

addition, Gittens renewed his objection immediately prior to the foregoing testimony by 

Dalton, and the court overruled the objection. 

¶32 M. R. Evid. 404(b) states: 

Evidence of other crimes, wrongs, or acts is not admissible to prove 

the character of a person in order to show action 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. 

¶33 In State v. Matt, 249 Mont. 136, 814 P.2d 52 (1991), we modified the rule, first 

established in State v. Just, 184 Mont. 262, 602 P.2d 957 (1979), for determining the 

admissibility of other crimes, wrongs or acts under Rule 404(b). The four elements of the 

Modified Just Rule are: 

(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, 249 Mont. at 142, 814 P.2d at 56. 

¶34 We observed in Matt that the Modified Just Rule incorporates the various 

purposes described in Rule 404(b) and, therefore, eliminated the limitation that evidence 

is admissible only if it shows a common scheme, plan or system. Matt, 249 Mont. at 142, 

814 P.2d at 56. In addition, we noted that the Modified Just Rule includes the limiting 

 17
factors set forth in M. R. Evid. 403. Matt, 249 Mont. at 142, 814 P.2d at 56. Finally, 

“[a]s a safeguard we require that evidence of other crimes may not be received unless 

proper notice has been provided to the defendant of the State’s intent to use such 

evidence and the State has indicated the purpose for which the evidence will be 

introduced.” Bieber, ¶ 56. 

¶35 Gittens contends that his statements concerning what he did with the marijuana 

constituted evidence of other crimes, wrongs, or acts pursuant to M. R. Evid. 404(b) and 

that the statements, therefore, were inadmissible under M. R. Evid. 404(b), since they did 

not meet the requirements of the Modified Just Rule. More specifically, Gittens claims 

that the second and fourth criteria of the Modified Just Rule were not met. In addition, 

Gittens contends that this evidence was not specific to the alleged offense and was highly 

prejudicial, that the State failed to provide him with the required notice, and that the 

District Court deprived him of a fair opportunity to have a hearing on the admissibility of 

the testimony. 

¶36 The State argues that Gittens’ statements were admissible under an exception to 

the Modified Just Rule for acts that are inextricably or inseparably linked with the 

charged offense. Under this exception, evidence of such acts is admissible, 

notwithstanding the substantive and procedural criteria of the Modified Just Rule. See 

State v. Buck, 2006 MT 81, ¶ 75, 331 Mont. 517, ¶ 75, 134 P.3d 53, ¶ 75. In State v. 

Lozon, 2004 MT 34, 320 Mont. 26, 85 P.3d 753, we noted: 

a longstanding distinction exists between Rule 404(b) “other crimes” 

evidence and evidence of a defendant’s misconduct which is inseparably 

related to the alleged criminal act. Where the evidence at issue is not 

 18
wholly independent or unrelated to the charged offense, it is not “other 

crimes” evidence and the prosecution is not required to comply with the 

notice requirements of Just and Matt. 

Lozon, ¶ 12. 

¶37 The transaction rule (§ 26-1-103, MCA) is the codification of the exception to the 

Modified Just Rule. State v. Marshall, 2007 MT 198, ¶ 16, 338 Mont. 395, ¶ 16, 165 

P.3d 1129, ¶ 16. The transaction rule states: “Where the declaration, act, or omission 

forms part of a transaction which is itself the fact in dispute or evidence of that fact, such 

declaration, act, or omission is evidence as part of the transaction.” Section 26-1-103, 

MCA. “Pursuant to the transaction rule, prior acts that are ‘inextricably linked to, and 

explanatory of, the charged offense are admissible notwithstanding the rules relating to 

“other crimes” evidence.’ ” Marshall, ¶ 16 (quoting Buck, ¶ 76). 

¶38 We agree with the State that Gittens’ statements to Dalton were admissible under 

the transaction exception to the Modified Just Rule, as the statements were inextricably 

linked to the charged offense of possession of dangerous drugs with intent to distribute. 

Gittens made his statements in an interview with Dalton after being Mirandized. The 

transcript reveals that Dalton’s questions pertained specifically to the drugs and drug 

paraphernalia found in the basement. Dalton testified: 

I asked him if he remembered giving me consent to search the basement, 

the house and the basement in particular, if he responded, if he remembered 

responding to me about the drugs and drug paraphernalia, asked him who 

they were, where he was getting it, where he was purchasing it from, 

whether or not he was growing, that type of thing. 

Furthermore, as reflected in the dialogue quoted in ¶ 31, Dalton’s questions were 

specifically addressed to “that quantity” of marijuana—i.e., the marijuana he and Ruiz 

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had found in the basement. On cross-examination, defense counsel asked Dalton about 

Gittens’ statement that he sometimes trades or gives marijuana away, and Dalton 

reiterated that his questions pertained specifically to the marijuana found in the basement. 

Defense counsel took issue with the fact that Gittens never told Dalton of his intention to 

give away or trade the marijuana—specifically, that Gittens never used the word “intent.” 

However, simply because Gittens never used the word “intent” does not prevent a jury 

from finding, based on the surrounding facts and circumstances testified to by Dalton, 

that Gittens intended to distribute the marijuana. See State v. Hall, 249 Mont. 366, 371, 

816 P.2d 438, 441 (1991) (“Because it is seldom subject to direct proof, intent must be 

inferred from the acts of the accused and the facts and circumstances of the offense.”). 

¶39 The facts here are analogous to those in Lozon. In Lozon, law enforcement 

officers conducted a search of the defendant’s room and discovered a vial containing 

methamphetamine. Lozon, ¶ 3. Although Lozon refused to respond when asked whether 

the vial was his, he later stated, after being read his Miranda rights, that he had used 

methamphetamine the prior night. Lozon, ¶ 3. At trial, Lozon objected to testimony 

regarding this statement, arguing that it was inadmissible evidence of other crimes under 

M. R. Evid. 404(b). Lozon, ¶¶ 5, 9. The district court admitted the testimony and we 

affirmed the district court’s ruling on the ground Lozon’s statement was admissible under 

the transaction rule. Lozon, ¶ 14. We explained: 

His statement to law enforcement officers that he had used 

methamphetamine in his room the night before the search is closely related 

to the charged offense of possession of dangerous drugs, and is explanatory 

of the circumstances surrounding the offense, because it establishes his 

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knowledge and possession of drugs in his room shortly prior to the early 

morning search. 

Lozon, ¶ 13. Likewise, in the case at hand, Gittens’ statement that he sometimes gives or 

trades marijuana for “stuff” is closely related to the charged offense of possession of 

dangerous drugs with intent to distribute and is explanatory of the circumstances 

surrounding this offense. 

¶40 In light of the evidence found by the officers in the house—the large quantity of 

marijuana, the numerous items related to the distribution of drugs, and the paraphernalia 

for ingesting drugs—we conclude that Gittens’ statements regarding his giving away and 

trading marijuana were inextricably linked to the charged offense of possession of 

dangerous drugs with intent to distribute. 

¶41 We hold that the District Court correctly interpreted and applied the transaction 

rule in admitting the statements Gittens made to Deputy Dalton. 

CONCLUSION 

¶42 Based on all of the available evidence, the District Court did not err in concluding 

that the State met its burden of showing that the Miranda rights were read to Gittens and 

that he voluntarily, knowingly, and intelligently waived them. Furthermore, the District 

Court did not err in admitting testimony regarding Gittens’ statements that he trades or 

gives away marijuana, as the statements were admissible under the transaction rule. 

¶43 Affirmed. 

/S/ JAMES C. NELSON 

 

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We Concur: 

/S/ KARLA M. GRAY 

/S/ JOHN WARNER 

/S/ BRIAN MORRIS 

Justice Jim Rice, specially concurring. 

¶44 I concur with the Court’s decision affirming the District Court. However, I 

disagree with the Court’s furtherance of the statement made in Grey that, under certain 

circumstances, an officer’s testimony that Miranda rights were given and that a defendant 

waived those rights “will be viewed with distrust” by this Court in determining the 

voluntariness of the waiver. 

¶45 “Voluntariness depends upon the totality of the circumstances.” State v. Jones, 

2006 MT 209, ¶ 20, 333 Mont. 294, ¶ 20, 142 P.3d 851, ¶ 20 (citing State v. Reavley, 

2003 MT 298, ¶ 15, 318 Mont. 150, ¶ 15, 79 P.3d 270, ¶ 15). Further, we have explained 

that the “specific question of whether a defendant has given a voluntary confession ‘is 

largely a factual determination that is within the discretion of the district court.’” Jones, 

¶ 17 (citing State v. Hill, 2000 MT 308, ¶ 37, 302 Mont. 415, ¶ 37, 14 P.3d 1237, ¶ 37). 

This is as it should be, as it falls to the district courts to hear the testimony and to make 

credibility determinations about that testimony. 

¶46 However, in Grey, this Court took the district court’s function to itself by holding 

that, when officers fail, in a “controlled circumstance,” to preserve a record of the giving 

and waiver of Miranda rights, their testimony about the situation would be “viewed with 

 22
distrust.” Grey, 274 Mont. at 214, 907 P.2d at 956. This presumption of distrust flies in 

the face of the district court’s credibility and discretionary functions and the law’s 

requirement that the totality of the circumstances be considered. It further results in the 

backpedaling distinguishing of that holding which is required in this opinion, and, not 

least of all, a negative pre-judging of the testimony of a sworn police officer. I would 

overrule it altogether. 

 /S/ JIM RICE 

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