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 C ounty Public Defender, Great Falls, Montana For Appellee: Hon. Mike McGrath, Montana Attorn ey General, Joslyn M. Hunt, Assistant Attorney Gene ral, 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:

__________________________________________ ClerkJustice 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 coun t of criminal possession of dangerous drugs with intent to distribute and one misdem eanor count of criminal possession of drug paraphernalia. He appeals from these convi ctions 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 denyi ng Gittens’ motion to suppress statements, based on the State’s alleged failure to sh ow that Gittens was properly Mirandized? 2. Did the District Court err in admitting testimony that Gittens claimed was inadmissible evidence of other crimes, wrong s, or acts under M. R. Evid. 404(b)? FACTUAL AND PROCED URAL BACKGROUND ¶3 On September 24, 2004, Ca scade County Sheriff’s Deputy Thomas Dalton made a traffic stop in Black Eagle, Montana. Da lton requested backup a nd 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 fo r him in the past, so Dalton ran a warrant check. After discovering that Gittens had ac tive county warrants for his arrest, Dalton and Ruiz allowed the driver to proceed, and th ey followed the vehicle to Gittens’ residence. While Ruiz went to the front doo r of the house, Dalton made contact with Gittens outside the back door of the house. Dalton advi sed 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 mariju ana coming from Gittens’ person. Dalton requested and received permission from Gittens to s earch the house. Two other individuals, Richard Aguon and Alex Smithson, were also pr esent in the house, although Smithson left soon after. Ruiz went to sear ch 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 is sues of “High Times” magazine, and other assorted drug paraphernalia. Three of thes e items bore the words “B Dogg,” which was Gittens’ nickname. After disc overing the brick of marijuan a, Ruiz notified Dalton, and Dalton came down to the baseme nt along with Gittens. Da lton 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, Se rgeant 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 ca r had an on-board video camera with audio recording capabilities; however, as Dalton later explained, du e 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 videotap e 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 . . . .”

3person 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 tes tified as to the equipment’s malfunction and that he was present when Dalton a dvised Gittens of his Miranda rights and began questioning him. Van Dyken later asked Gittens se veral questions and also testif ied that Gittens stated that he traded and gave marijuana to other people. ¶6 The State charged Gittens, by Information, with Coun t 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 paraphe rnalia, 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 suppre ss all the statements he made following his arrest on the ground that the State had failed to demonstr ate 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 Gitte ns, the District Court denied the motion to suppress. ¶7 On March 11, 2005, the State filed an Am ended Information retaining the original two counts, but adding an alte rnative 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 pr event the State from introducing Gittens’ statements to the officers th at he sometimes traded mar ijuana for “stuff.” The court

4denied Gittens’ motion, and the jury heard te stimony 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 posse ssion of dangerous drugs with intent to distribute and one misdemeanor count of criminal po ssession of drug paraphernalia. ¶8 The District Court sentenced Gittens to te n years at the Montana State Prison with three years suspended on Co unt I, and six months in the Cascade County Detention Center on Count II, the two se ntences 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 fi ndings 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 Mo nt. 10, ¶ 17, 171 P.3d 731, ¶ 17. “A trial court’s findings are clearly erroneous if they are not supported by s ubstantial credible evidence, if the court has misapprehended the effect of th e evidence, or if our review of the record leaves us with a definite and firm conv iction 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 w ithout 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

5to the extent that a discreti onary ruling is based on a conclusion of law. In such circumstance, we must determine whether th e court correctly interpreted the law.” McOmber , ¶ 10 (quoting State v. Price , 2006 MT 79, ¶ 17, 331 M ont. 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 fa ilure 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 pr ovide that people have the right not to incriminate themselves. In re Z.M. , 2007 MT 122, ¶ 39, 337 Mont. 27 8, ¶ 39, 160 P.3d 490, ¶ 39. The Supreme Court addressed the ri ght 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 ex ercise 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 un less the defendant is warned, prior to questioning, that he has a right to remain s ilent, that any statement he does make may be used as evidence against him, an d that he has a right to the presence of an attorney.” State v. Olson , 2003 MT 61, ¶ 13, 314 Mont. 40 2, ¶ 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 codifi cation 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 ag ainst 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 th at 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 pe rson 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, knowin gly, 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, 4 45 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 constituti onal right against self-incrimination was voluntarily, knowingly, a nd 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). Howe ver, we have encouraged law enforcement officers “to preserve a tangible record of advising defenda nts of their rights and a defendant’s waiver

7of those rights.” Cassell , 280 Mont. at 403, 932 P.2d at 4 81. Indeed, this Court held in Grey that in the context of a custodial interroga tion conducted at the station house or under other similarly controlled circumstances, the failure of the police officer to preserve some tangible r ecord of his or her giving of the Miranda warning and the knowing, intelligent wa iver by the detainee will be viewed with distrust in the judicial assessment of voluntariness under the totality of circumstances surrounding th e 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 sh ow 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. Accordin g to Gittens, “law en forcement did have means readily available to record Miranda wa rnings and any subseque nt waiver of those rights” and “[t]here were no exigent circ umstances that would have justified not recording any purported Miranda warning and subsequent wa iver.” Thus, he argues, “law enforcement shou ld have properly recorded any purported Miranda warning and subsequent waiver.” Gittens claims that without this recording, th e State lacks clear evidence to show that he was Mirandized and that he knowingly, intelligently, and

8voluntarily waived his Miranda rights. Accordingly, Gitte ns argues that the District Court erred in not suppressing his statements. ¶17 The State argues that the District Co urt properly denied Gittens’ motion to suppress. While the State ackno wledges the foregoing holding of Grey , the State asserts (citing Cassell and Lawrence ) that the only requirement is th at “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 an d 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 admissi on was given involuntarily.). ¶19 Second, Gittens’ motion to suppress was di rected at “all statements” he made “after his arrest on September 24, 2004.” Like wise, on appeal, Gittens asserts that “any statements” he made “after his arrest” shou ld have been suppre ssed. 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 sear ch of the house. Yet, Gittens does not identify any part icular statements that he made in the interim between

9his arrest and the Miranda warnings. More importantly, he does not offer an analysis of whether any such statem ents 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 not ed, his argument is directed at the sufficiency of the State’ s proof that he was Mirandize d and that he waived his Miranda rights. Accordingl y, we will not consider the matte r of any “interim statements” further. See In re Marriage of McMahon , 2002 MT 198, ¶ 6, 311 Mo nt. 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 th at 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 purpor ted reading and waiver of his Miranda rights compels the suppression of his statements. Gittens read s our cases too broadly. Indeed, we have explicitly recognized that circ umstances may preclude the cr eation 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 he r giving of the warning or of the accused’s waiver.”). Thus, our statements that the failure to preserve a tangible record will re sult in “distrust” and “extreme disfavor” have been directed at si tuations in which the means to preserve a tangible record were readily av ailable, but the officers failed to avail themselves of those

means. See Lawrence , 285 Mont. at 156, 948 P.2d at 195 (“[L]aw enforc ement 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 cust odial interrogation conducted at the station house or under other similarly controlled circumstances , the failure of the poli ce officer to preserve some tangible record . . . will be view ed with distrust.” (emphasis added)). ¶21 Moreover, while we have said that the fa ilure to preserve a tangible record when the means to do so ar e readily available results in extr eme 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 fact or 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 bu rden 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 w ill consider whether the District Court erred in concluding that the State met its burd en of proof in light of all of the available evidence. ¶22 There was a factual dispute between G ittens 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 kn ow 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 Da lton 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 whenev er 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 car d 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 la w. You have the right to talk to a lawyer and have your lawyer presen t while you’re being ques tioned. 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 a ny time to exercise these rights and not answer any questions or make any statements. Dalton further testified that the card containe d a section stating: “Waiver after giving Miranda ask, ‘Do you understand each of thes e 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 testifie d that he specifically aske d Gittens, “Do you understand each of these rights?” and, “knowing these ri ghts, 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 ri ghts 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 au dio and video equipment was working and it was never his intention not to have audio. When asked at the suppression hearing

12whether 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. Da lton 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 waive r. Dalton further testified that Gittens followed him volunta rily 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 in dication 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 co nfirmed 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 Dalto n. 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 inten tion that the warning and any subsequent statement be recorded. ¶27 After hearing testimony from Dalton, Van Dyken, and G ittens, 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

13not impaired and that he wa ived his rights voluntarily. 2 In making these findings, the court found the officers’ testimony to be cred ible, whereas it found Gittens’ testimony not to be credible. It is not this Court’s function, on appe al, to reweigh conflicting evidence or substitute our evaluation of the evidence for that of the district court. We defer to the district court in case s involving conflicting testimony because we recognize that the c ourt had the benefit of ob serving the demeanor of witnesses and rendering a determin ation 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 th e District Court’s determin ation that Dalton’s and Van Dyken’s testimony was more cred ible than Gittens’ testimony. ¶28 Gittens relies on Grey in making his argument that the District Court erred in denying his motion to suppre ss; 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 Mi randized Gittens. In Grey , the officer chose not to use a waiver fo rm 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 a nd 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.

14the interrogation.” Grey , 274 Mont. at 213, 907 P.2d at 955. In contrast, Dalton testified that the reason he did not obt ain a written waiver from Gitte ns 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 testim ony 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, incl uding 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 C ourt’s finding that Dalto n 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 waiv er 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 availa ble evidence surrounding th e reading and waiver of Gittens’ Miranda rights, we hold that the District C ourt 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 G ittens by way of reading him the Miranda warnings on Dalton’s card. The District Court further fou nd 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 re ading Gittens his rights or the subsequent

15waiver, we are satisfied from all the available evidence that the State’s burden of proof was met. Accordingly, we ho ld that the District Court di d not err in denying Gittens’ motion to suppress. ¶30 Issue Two. Did the District Court e rr 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 ma rijuana 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 baggi es, all indicated, and the large amount of marijuana there, the baggies, th e 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 ga ve it to people. He traded it for stuff. And he used it for himself personally. Q. Okay. So he gave it to peopl e. 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 hi s house, or would just trade the marijuana for, again, stuff. He didn’t el aborate what the stuff was. But he traded it or gave it away. Prior to voir dire, Gittens moved to excl ude this testimony on the ground it violated M. R. Evid. 404(b). The District Court denied his motion, re asoning that Gittens’

16statement that he “traded [the marijuana] for st uff” 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 sh ow 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 (199 1), we modified the rule, first established in State v. Just , 184 Mont. 262, 60 2 P.2d 957 (1979), for determining the admissibility of other crimes, wro ngs or acts under Ru le 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, wr ongs 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, opportun ity, intent, preparation, plan, knowledg e, identity, or absence of mistake or accident. (4) Although relevant, evidence ma y be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, c onsiderations of undue delay, waste of time, or needless pr esentation of cumula tive 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, theref ore, eliminated the lim itation 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

17factors 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 provid ed to the defendant of the State’s intent to use such evidence and the State has indicated the purpose for wh ich the evidence will be introduced.” Bieber , ¶ 56. ¶35 Gittens contends that his statements conc erning what he did with the marijuana constituted evidence of other crim es, 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 specifi cally, Gittens claims that the second and fourth criteria of the Modified Just Rule were not met. In addition, Gittens contends that this ev idence was not specific to th e alleged offense and was highly prejudicial, that the State fa iled 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 unde r an exception to the Modified Just Rule for acts that are inextricab ly or inseparably linked with the charged offense. Under this exception, evidence of such acts is admissible, notwithstanding the substantive and pr ocedural criteria of the Modified Just Rule. See State v. Buck , 2006 MT 81, ¶ 75, 3 31 Mont. 517, ¶ 75, 1 34 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 eviden ce of a defendant’s miscon duct which is inseparably related to the alleged criminal act. Where the evidence at issue is not

18wholly independent or unrelated to th e 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 codificatio n 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 transac tion rule states: “Where the declaration, act, or omission forms part of a transaction whic h 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, pr ior acts that are ‘inextricably linked to, and explanatory of, the charged offense are admi ssible 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 excepti on to the Modified Just Rule, as the statements were inextricably linked to the charged offense of possession of dangerous drugs w ith intent to distribute. Gittens made his statements in an interview with Dalton after be ing Mirandized. The transcript reveals that Dalton’s questions pertained specifically to the drugs and drug paraphernalia found in the ba sement. Dalton testified: I asked him if he remembered giving me consent to search the basement, the house and the basement in particular, if he resp onded, if he remembered responding to me about the drugs a nd 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

19had found in the basement. On cross-exam ination, defense counsel asked Dalton about Gittens’ statement that he sometimes trades or gives marijuana away, and Dalton reiterated that his questions pertained specifica lly to the marijuana fo und in the basement. Defense counsel took issue with the fact that Gittens never told Dalt on of his intention to give away or trade the marijuan a—specifically, that Gittens ne ver 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 tes tified 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 sel dom subject to direct proof, intent must be inferred from the acts of the accused and the fa cts and circumstances of the offense.”). ¶39 The facts here are an alogous 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, Lozo n objected to testimony regarding this statement, arguing that it wa s inadmissible evidence of other crimes under M. R. Evid. 404(b). Lozon , ¶¶ 5, 9. The district cour t admitted the testimony and we affirmed the district court’s ruling on the gr ound Lozon’s statement was admissible under the transaction rule. Lozon , ¶ 14. We explained: His statement to law enforcemen t 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 dr ugs, and is explanatory of the circumstances surrounding the offense, because it establishes his

20knowledge and possession of drugs in hi s room shortly prior to the early morning search. Lozon , ¶ 13. Likewise, in the case at hand, Gitte ns’ 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 th e house—the large quantity of marijuana, the numerous items re lated to the distribution of drugs, and the paraphernalia for ingesting drugs—we conclude that Gittens ’ statements regardi ng his giving away and trading marijuana were inextricably linked to the charged offense of possession of dangerous drugs with inte nt 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, th e District Court did not err in concluding that the State met its bur den of showing that the Miranda rights were read to Gittens and that he voluntarily, kn owingly, and intelligently waived th em. Furthermore, the District Court did not err in admitting testimony regarding Gittens’ stat ements that he trades or gives away marijuana, as the statements were admissible un der the transaction rule. ¶43 Affirmed.

/S/ JAMES C. NELSON

21We Concur: /S/ KARLA M. GRAY /S/ JOHN WARNER /S/ BRIAN MORRIS

Justice Jim Rice, speci ally concurring. ¶44 I concur with the Court’s decision affi rming the District Court. However, I disagree with the Court’s furthera nce 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 vi ewed 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, 33 3 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 give n 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. 41 5, ¶ 37, 14 P.3d 1237, ¶ 37). This is as it should be, as it falls to the di strict 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

22distrust.” Grey , 274 Mont. at 214, 907 P.2d at 956. Th is presumption of distrust flies in the face of the district cour t’s credibility and discretiona ry 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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