No. 14417 

IN THE supm COUHT OF THE STATE OF rnNTANA 

1978 

THE STATE OF JONTANA, 

Plaintiff and Respondent, 

-VSKENNETH BREmSTEIN', SR. 

Defendant and Appellant. 

Appeal froan: District Court of the Nineteenth Judicial District, 

Honorable Ibbert M. Holter, Judge presiding. 

Counsel of mrd: 

For Appellant: 

Frank B. bbrrison, Sr., Whitefish, Mntana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Mntana 

William A. Douglas, County Attorney, Libby, Mntana 

Submitted on briefs: No- 8, 1978 

MAR 2 - !979 Decided. 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Defendant Kenneth Breitenstein, Sr., appeals from a 

judgment convicting him of the crime of aggravated assault 

following a jury trial in the District Court of Lincoln County. 

On July 4, 1977, appellant Kenneth Breitenstein, Sr., 

was arrested in Lincoln County, Montana, on the charge of 

aggravated assault under section 94-5-202, R.C.M. 1947, now 

section 45-5-202 MCA. An information was filed charging 

that the defendant had purposely and knowingly placed William 

H. Heika in reasonable apprehension of serious bodily injury 

by use of a weapon, specifically that he had pointed a 

pistol at William Heika and threatened to shoot him if he 

moved. Defendant pleaded "not guilty". Later defendant 

filed notice of his intention to rely on the defenses of 

insanity, self-defense and alibi. 

Jury trial was held March 14 and 15, 1978, and appellant was found guilty of the crime of aggravated assault. 

He was sentenced to four years in the Montana State Prison. 

The sentence was suspended. 

On July 4, 1977, William Heika, Earl Ballenger and Jim 

Tompkins were on a spur road a short distance off the Long 

Meadow Road in the Yaak Valley of Lincoln County, Montana, 

on their way to cut firewood at Roderick Butte nearby. 

Heika held a Forest Service permit to cut firewood in the 

area. On the spur road they came upon a number of trees 

felled across the road blocking further progress. They 

proceeded to cut the trees into blocks, loading them into 

Heika's pickup to clear passage for their three pickups. 

Appellant was driving down Long Meadow Road on his way 

home from work. He saw the three pickups on the spur road 

and recognized Heika's. 
Appellant testified he proceeded to his ranch nearby 

and washed up. He then strapped on his .22 caliber pistol, 

tied a block of salt on his trail bike and proceeded to take 

the salt to his cattle. He testified that he had felled the 

trees across the spur road where Heika and his two companions 

were sawing in order to contain his cows within a Forest 

Service Grazing Permit located adjacent to his ranch and 

upon which the incident occurred. He testified that after 

salting his cattle, he decided to investigate to see if the 

trees had been removed, which would allow his cows to walk 

away. 

Appellant testified he was somewhat upset when he 

arrived at the scene of the incident. He apparently addressed 

himself to Heika almost exclusively although Heika was the 

furthest from him as he arrived on the scene. He testified 

he inquired ". . . what the hell they were doing there, 

cutting those trees." Heika's version was appellant ". . . 

came charging out of the woods . . . [yelling at us] 'What 

in the hell are you doing on my property'. That he had cut 

down those trees for a reason . . ." Appellant called Heika 

some very profane and insulting names and ordered all of 

them off "his property". Heika was from 10 to 25 feet from 

appellant. Appellant was standing about at the rear of 

Heika' s pickup. 

Both agree Heika took several steps forward in appellant's direction. Appellant at this point drew his automatic pistol and pointed it at Heika. Heika testified he 

had been ordered to leave and was trying to get to his 

pickup to do so. Appellant's version is the steps were 

threatening, as Heika had a beer can in his hand and ~eika 

"had a weird look on his face", "a twisted look like he Was 
really mad and going to get revenge". Appellant testified 

he said, "Stop Billtt and Bill stopped. Heika testified he 

stopped but that again appellant ordered him to leave and 

again he took a step toward his pickup whereupon appellant 

pulled the slide to cock the automatic pistol and said 

"All right you fat son-of-a-bitch, another step and I will 

blow you full of holes like a s,i.eve." 

Heika turned away, walked to the farthest pickup, 

Tompkins', and left. Appellant holstered the pistol and 

allowed Tompkins to take Heika's pickup. Heika made a 

complaint to the sheriff and appellant was arrested. 

Some background is necessary. 

Appellant Kenneth Breitenstein owned the family ranch 

of 150 acres along the South Fork of the Yaak River and had 

lived there his whole life, 44 years. He worked in the 

woods felling trees and had some cattle on his ranch. He 

also had, as his family before him, a U. S. Forest Service 

Grazing Permit on some 70 odd acres adjacent to the ranch. 

The complaining witness, William Heika, had lived in 

the Yaak community for two or two and one-half years before 

the incident. He "thinned in the woods" and ran a bar 

called The Cherokee Strip, located about two or two and 

one-half miles from the scene of the incident. 

Appellant and Heika had met four or five times in the 

time Heika had lived in the community. 

In 1976 Heika owned three Irish Setters and intended to 

raise setters at the Cherokee Strip. In August 1976 appellant's son, Ken, Jr., shot two of Heika's dogs killing one 

and wounding another. One dog, "Big Melt', was registered 

and a champion, worth $350 according to Heika. ~ccording 
to appellant, the dogs were shot because they were chasing 

appellant's cattle. In early 1977 Heika discovered who had 

shot his dogs and filed a lawsuit against appellant. 

Appellant also testified Heika had threatened him over the 

Citizen Band radio threatening to get appellant and his son 

if he could ever catch them "alone out on the road". 

The issue on appeal is framed by appellant as follows: 

Did the District Court err in excluding evidence of 

specific instances of prior threats made by the victim of 

the alleged assault against appellant/defendant which were 

known by appellant and which engendered in him a reasonable 

belief that he was in danger of imminent bodily injury? 

It is well to note that the District Court did allow 

defendant to testify fully as to threats made by Heika 

against himself and his son. 

Two separate offers of proof were made by appellant. 

The first was when appellant's son was called as the 

first defense witness and before appellant had testified. 

The offer was that the witness, Ken, Jr., would testify 

that Heika's mother-in-law said she would blow Ken, Jr.'s 

head off with a shotgun and this threat was related to 

appellant. Further, he would testify that in March 1977 

there was a confrontation between Heika and Ken, Jr., at the 

Dirty Shame Saloon when Heika said he was going to knock the 

hell out of Ken, Jr. This threat was also relayed to 

appellant. 

The offer of proof was rejected by the court for lack 

of foundation. Appellant cites Rules 404- (a) (2) and 405 (b) , 

Mont.R.Evid., as to when specific instances of conduct may 

be used to show character where character is an essential 

element of the defense. 
We hold that the trial court was correct in its ruling 

at this time. 

The Commission Comment to Rules 404 (a) (2) and 405 (b) 

states in effect that the Montana rules were modified from 

the Federal Rules specifically to be restatements of existing Montana case law. 

Appellant's argument recognizes the Montana rule is that 

"after the accused has laid his foundation for self-defense", 

such evidence may be admissible." He argues that by appellant giving notice of his intention to rely on self-defense 

that no further foundation was necessary. 

This Court in State v. Logan (1970), 156 Mont. 48, 64- 

65, 473 P.2d 833, 842, specifically rejected this argument: 

". . . The existence of the issue of self-defense 

and an issue as to the agressor in the altercation 

is necessary before corroboration by evidence of 

the deceased's reputation for turbulence and violence is admissible. 

"The notice of intention to rely on self-defense 

served by defendant on the state prior to trial 

is immaterial and does not place this matter in 

issue at the trial. Defendant is not bound to 

rely on this defense at the trial notwithstanding 

service of this notice. Until such time as defendant took the stand and admitted the killing, 

the issue of self-defense was not joined at the 

trial. Thus no foundation existed for the admission of the testimony." (Emphasis added.) 

The Court then allowed appellant to testify to his 

knowledge of prior threats Heika had made. He testified 

that in the middle of April, he, appellant, was talking to a 

neighbor on his Citizen Band radio when Heika broke in and 

said "I'll get even with you and your son" if he could ever 

catch them alone somewhere on the road. 

He also testified that in April or May his daughter had 

told him that Heika had stopped where she was living and 
made her go for a ride with Heika in his pickup. Heika 

wanted appellant's daughter to testify against her father in 

the lawsuit over the dogs. Further, Heika had threatened to 

catch appellant out on the road and even things up. 

He further testified that in the spring of 1977 his 

son, Ken, Jr., came home and told him he had had an encounter 

with Heika at the Dirty Shame Saloon where Heika had threatened to get him for shooting the dogs. 

Under cross-examination Heika admitted the two incidents 

dealing with appellant's son and daughter. He denied the C. 

B. threat. However, all the threats were the same, he 

would get appellant and his son out on the road alone and 

even things up. 

A second offer of proof was made to prove by the testimony of one David Lawson that the C.B. threat was made. The 

testimony of Elizabeth Breitenstein, now Elizabeth Jetton, 

would provide corroboration of Heika's visit to her and his 

threats to her father and brother. Further, Ken, Jr., would 

testify as to threats made by Heika at the Dirty Shame 

Saloon. 

This offer was rejected by the court after stating he 

had allowed appellant to testify concerning the threats on 

his own state of mind, but found "under the Rules of Evidence that it would exclude it because its probative value 

is substantially outweighed by the danger of unfair prejudice, confusion of the issue and resulting in misleading the 

jury . " 

The court also refused the State through William Heika 

to rebut the threats testified to by appellant. 

The trial judge made his assessment of the probative 

value of the threat evidence and his reasoning as follows: 
"The very most that can be said is that with the 

beer can in his hand, if you take the Defendant's 

view of him moving toward his agressor, if you take 

the complaining witness's statement of standing 

there and I started to go to my car and a guy whipped 

out a pistol and then said I am going to blow you 

out of existence, or something to that effect, 

then it might have been admitted solely for the 

state of mind of the Defendant. I don't believe 

its of any great value to the Jury." 

Judge Brantly in State v. Hanlon (1909), 38 Mont. 557, 

574, 580, 100 P. 1035, addressed the admissibility of such 

evidence as follows: 

". . . But no hard-and-fast rule of exclusion may 

be laid down. A wise discretion should be the 

guide, and in all cases where the specific act, by 

reason of its proximity in time and place, would 

legitimately reflect upon the conduct or motives 

of the parties at the time of the affray . . . it 

should be admitted." 

Did the trial judge abuse his discretion? 

"As the admissibility of the evidence itself must 

rest largely in the sound discretion of the trial 

court, so must the extent to which the investigation 

of collateral issues arising thereon may so be 

lodged in its discretion, and its action will not 

be reviewed except where its discretionary power 

has been manifestly abused." Hanlon, 38 Mont. at 

580. 

The trial judge stated that in his opinion, further 

testimony as to the threats would be excluded because its 

"probative value is substantially outweighed by the danger 

of unfair prejudice, confusion of the issue and result in 

misleading the jury. " 

Rule 403, Mont.R.Evid., states: 

"Although relevant, evidence may be excluded if its 

probative value is substantially outweighed by the 

danger of unfair prejudice, confusion of the issue, 

or misleading the jury . . . or needless presentation of cumulative evidence." 

The Commission Comment reads: 

"A key element of this rule is the discretion of 

the judge in deciding whether otherwise relevant 

evidence is to be excluded because of the factors 

listed in the rule." 
In State v. Jennings (1934), 96 Mont. 80, 89, 28 P.2d 

448, this Court stated: 

"Such evidence is admissible only when the defendant has interposed a plea of self-defense (citing 

cases) and when a proper foundation is laid by 

proof of some overt act justifying such defense. 

(Citing cases.) The trial court should exercise 

a sound legal discretion in determining whether 

or not the proper foundation has been laid for 

the introduction of the offered testimony. . . 

"'The true solution is to exercise a discretion 

and to admit such facts when common sense tells 

that they could legitimately affect a defendant's 

apprehension.' (1 Wigmore on Evidence, 2nd ed., 

521.)" 

In this case the jury was informed of the threats. 

From the total record of the case, the long-standing controversy between Heika and appellant and his family is clear 

and uncontradicted. The evidence by the witnesses to the 

incident substantiates that even during the confrontation, 

the dog problem was argued. 

Under these ciroumstances we hold that the trial judge 

did not abuse his discretion by ruling that repetitious 

testimony as to prior threats should be excluded as likely 

to distract and mislead the jury from the issues actually 

in controversy. See State v. Heaston (1939), 109 Mont. 303, 

The judgment of conviction is affirmed. 

-. - 

Chief Justice