No. 90-591 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 9 1 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsSCOTT ANTHONY WOLFE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Douglas G. Harkin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

J. Dirk Beccari and Marcia M. Jacobson; Public 

Defender's Offices; Missoula, Montana. 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, 

Montana; Elizabeth Griffing, Assistant Attorney 

General, Helena, Montana; Robert L Deschamps 111, 

County Attorney, Missoula, Montana; Fred Van 

Valkenberg, Deputy County Attorney, Missoula, 

Montana. 

Filed: 

submitted on briefs: May 31, 1991 

~ecided: November 14. 1991 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Scott Anthony Wolfe (Wolfe) appeals his convictions of 

possession of explosives and criminal mischief following a jury 

trial in the Fourth Judicial District, Missoula County. We affirm. 

Wolfe presents the following issues: 

1. Did the District Court err when it denied Wolfe's motion 

for dismissal under the 180-day speedy trial provision of the 

Interstate Agreement on Detainers? 

2. Did the District Court err by subjecting Wolfe to double 

jeopardy when it entered judgment against him on possession of 

explosives and criminal mischief? 

3. Did the District Court err by prejudicing Wolfe when it 

admitted evidence of Wolfets prior acts for the jury's consideration? 

4. Did the District Court err by denying Wolfets 1) motions 

for mistrial and related objections, and 2) motion for a directed 

verdict? 

From 1981 to 1987, Wolfe worked for Montana Hearth Company, 

a small company located in Missoula, Montana. Montana Hearth 

Company quarried flagstone and manufactured stone hearth pads. 

Wolfe worked mainly in the company's manufacturing shop in 

Missoula, but occasionally worked at the quarry sites, where he 

helped co-workers use blasting equipment to quarry the hearth 

stone. 
Montana Hearth Company purchased its blasting equipment from 

various businesses in Montana. This blasting equipment included 

Aisla llThistlell brand fuses, a rare brand of safety fuse manufactured in Scotland; blasting caps; and two types of dynamite, Atlas 

Giant Gelatin Sticks and Ireco Iremite. 

Generally, Montana Hearth Company used its blasting equipment 

within two or three days of purchase. In January or February 1987, 

however, Ireco Iremite dynamite, Aisla "~histlel~ brand fuses, and 

blasting caps were taken from a quarry site to the Missoula shop 

for storage. Around this time, Richard Bossard, a Montana Hearth 

Company co-owner, realized that a large amount of blasting caps and 

fuse were missing. 

In the early morning hours of Easter Sunday on April 19, 

1987, an unmarked and unoccupied police car parked by the City Hall 

Building in Missoula was blown up by explosives. Following an 

expert examination of the scene of the explosion, examiners 

concluded that Aisla I1Thistlel1 brand safety fuse and Ireco Iremite 

dynamite had been used to blow up the police car. 

During the weekend of April 18-19, 1987, George Chaussee 

(Chaussee) , a co-owner of Montana Hearth Company, stayed with Wolfe 

at an apartment rented by Darcy Estes Conover (Conover), Wolfefs 

then-girlfriend. On the evening of April 18, 1987, Wolfe asked 

Chaussee if he could borrow Chaussee's truck. Chaussee agreed. 

Wolfe then departed from the apartment in Chaussee's truck. 
Chaussee remained at the apartment that evening. Hours later, when 

Wolfe returned to the apartment, Wolfe woke Chaussee up and told 

Chaussee that he had blown up a police car. Because of their 

friendship, Chaussee did not inform authorities of Wolfefs 

admission until he was subpoenaed by a federal grand jury. 

On the evening of April 18, 1987, Michael Watson (Watson) saw 

and conversed with Wolfe at a b<it near City Hall in Missoula. 

Watson testified that Wolfe declined to attend an early morning 

party on April 19, 1987, because Wolfe had "other things that he 

had to attend to." 

One week later, Wolfe stayed with Conover at Quinn Hot Springs 

located near one of Montana Hearth Company's quarry sites. Conover 

teased Wolfe about firearms in his possession after reading 

newspaper articles concerning the police car explosion, which made 

reference to possible neo-Nazi involvement. Conover asked Wolfe if 

he was a neo-Nazi. According to Conover, Wolfe replied that her 

question was funny because someone had asked him if he had gotten 

religion the weekend before. Conover then asked Wolfe if he was 

referring to the police car explosion incident; Wolfe sarcastically replied, "yeah. 

Prior to Chausseefs testimony before a federal grand jury, 

authorities suspected Wolfe of involvement in this police car 

explosion incident. In December 1986, pursuant to a federal search 

warrant, Missoula County Sheriff's Department detectives searched 
a residence then shared by Wolfe and Chaussee. Among other things, 

the detectives found sticks of Atlas Giant Gelatin dynamite, Aisla 

llThistlell brand safety fuses, blasting caps, and five destructive 

devices in Wolfers bedroom closet. 

On January 17, 1989, Wolfe was charged by information with one 

count of possession of explosives in violation of 45-8-335, MCA 

(1987), and one count of criminal mischief in violation of § 45-6- 

101, MCA (1987). Wolfe was imprisoned at a federal prison in 

Oakdale, Louisiana, at this time. On October 25, 1989, Wolfe filed 

with the District Court a motion to dismiss the information on the 

ground that his right to a speedy trial had been violated under the 

Interstate Agreement on Detainers (IAD) . On December 15, 1989, the 

District Court denied Wolfers motion to dismiss, and later, denied 

Wolfers motion to reconsider following a hearing on the matter. 

Wolfe then petitioned this Court for a writ of supervisory control 

seeking dismissal of the information on the same ground. This 

Court dismissed Wolfers petition in an order dated March 20, 1990, 

holding that Wolfe had an adequate remedy on appeal. 

Following a jury trial, which began on July 11, 1990, Wolfe 

was found guilty of both crimes as charged. The District Court, on 

September 17, 1990, sentenced Wolfe to twenty years imprisonment 

forthe conviction of possession of explosives, ten years imprisonment for the conviction of criminal mischief, and ten years 

imprisonment with five years suspended for being a persistent 
felony offender, all sentences to run consecutively. From these 

convictions, Wolfe appeals. 

1. Did the District Court err when it denied Wolfe's motion 

for dismissal under the 180-day speedy trial provision of the 

Interstate Agreement on Detainers? 

On January 17, 1989, Wolfe was serving a federal prison 

sentence in Oakdale, Louisiana, when charges were filed against him 

in Montana regarding the police car explosion incident. On January 

29, 1989, Wolfe wrote a letter to the Missoula County Attorney's 

Off ice informing the office of his location so a detainer could be 

issued. On February 6, 1989, the Missoula County Sheriff's Office 

sent certified copies of the warrant and information in this case 

to Jessie Smith, an inmate technician at the federal prison in 

Oakdale, Louisiana, requesting that a detainer be lodged against 

Wolfe. On February 7, 1989, a Missoula deputy county attorney 

wrote a letter to Wolfe informing him that Montana was in the 

process of placing a detainer against him. In this letter, the 

deputy county attorney also advised Wolfe to discuss this matter 

with an attorney. 

On February 24, 1989, Wolfe wrote and informed his case 

manager at the federal prison of the Montana detainer. The case 

manager responded on February 26, 1989, and advised Wolfe to 

"Please come by and see me. On February 27, 1989, Wolfe requested 
the R. and D. Office (prison records department) of the federal 

prison l1to get the paper work started on the Interstate Agreement 

on ~etainers" because its completion would commence the 180-day 

time limit for Montana to bring Wolfe to trial on this matter. 

According to Wolfe, his prison officials failed to "promptly 

forward" his request within a reasonable time. Besides Wolfefs 

assertion, the record is devoid of evidence that prison officials 

failed to respond to Wolfefs request within a reasonable time. 

Wolfe then researched the IAD in the prison law library and chose 

to proceed with the notification requirements under the IAD on his 

own and without the assistance of prison officials. 

On March 2, 1989, three days after his request for assistance 

to the R. and D. Office, Wolfe sent by registered mail to the 

I1County Court Clerk" in Missoula three copies each of the following: a Notice of Motion to Discover Exculpatory Evidence in 

Possession of Prosecutor; an Inmate's Notice of Place of Imprisonment and Request for Disposition of Indictments, Informations, or 

Complaints form; a letter addressed to Robert L. Deschamps, the 

Missoula County Attorney; and a computer printout dated February 

27, 1989, reflecting Wolfefs status at the federal prison. Because 

the letter in the envelope sent by Wolfe was addressed to County 

Attorney Deschamps, the letter, enclosures and all copies therein 

were forwarded to the County Attorney's Office and were not filed 

with the clerk of court. Wolfe later testified that he also 
included a handwritten note in this communication which stated to 

"Please distribute [the copies] to the right people." There is no 

record that this handwritten note was received by the County 

Attorney's Office and Wolfe did not retain a copy of it for his 

file, although he retained copies of all the other documents 

included in his March 2 mailing. Wolfe later acknowledged at a 

January 29, 1990 hearing that these papers were not only incomplete, but were improperly completed. 

On March 7, 1989, Wolfe prepared and forwarded three copies 

each of the following by registered mail to the United States 

District Court of Missoula: a revised Inmate's Notice of Place of 

Imprisonment and Request for Disposition of Indictments, Informations or Complaints form; another letter to the Missoula County 

Attorney; the same computer printout sent in the March 2 mailing, 

and a typewritten note, which stated in part, "1 APOLOGIZE FOR 

MAKING A MISTAKE ON THE LAST PAPER WORK THAT I SENT YOU. . . . 

PLEASE REPLACE THE OTHERS WITH THESE." Apparently, this second 

mailing was forwarded by the United States District Court of 

Missoula to the Missoula County Attorney's Office. Wolfe later 

testified that he once again included a handwritten note that 

indicated to I1Please distribute [the copies] to the right people." 

Again, however, there is no record that the Missoula County 

Attorney's Office ever received this note, and Wolfe again could 

not produce a copy of the note from his records, although he 
maintained copies of all the other documents included in his March 

7 mailing. 

On October 25, 1989, Wolfe moved the District Court for 

dismissal of the information on the ground that his right to a 

trial within the 180-day limitation under the IAD had been 

violated. The District Court denied Wolfers motion holding that 

Wolfe had failed to substantially comply with the IAD procedure in 

his March 2 and March 7 mailings. Wolfe moved the District Court 

to reconsider its holding. Following a January 29, 1990 hearing, 

where Wolfe testified about his March 2 and March 7 mailings, the 

District Court denied Wolfers motion to reconsider and specifically 

found Wolfers testimony at the hearing incredible. Wolfers trial 

later commenced on July 11, 1990. 

Wolfets argument is two-fold. First, he argues that his 

February 27, 1989 request to the federal prison officials triggered 

the IADrs 180-day time limit provision within a reasonable time 

after his request because of the prison officialsr failure to 

Itpromptly forwardn documents. However, besides Wolfe's own 

assertion, no evidence exists in the record that the prison 

officials failed to respond to Wolfers request within a reasonable 

amount of time. Furthermore, once Wolfe bypassed the prison 

officials and proceeded on his own to comply with the IAD notice 

procedure, he assumed the burden for any deficiencies of notice. 

Hill v. Jones (1983), 463 N.Y.S.2d 655, 656. 
Second, Wolfe argues that his March 2 and March 7 mailings 

were sufficient to trigger the 180-day requirement under the IAD. 

Upon reviewing the record, we agree with the District Court that 

Wolfe's right to a speedy trial under the 180-day speedy trial 

provision of the IAD was not violated because Wolfe chose to bypass 

prison officials and then, on his own, failed to substantially 

comply with statutory procedure under the IAD, therefore failing to 

trigger the IAD1s 180-day speedy trial provision. The IAD in ?j 46- 

31-101, Art. III(l), MCA, provides in pertinent part: 

(1) Whenever a person has entered upon a term 

of imprisonment in a penal or correctional 

institution of a party state and whenever 

during the continuance of the term of imprisonment there is pending in any other party 

state any untried indictment, information, or 

complaint on the basis of which a detainer has 

been lodged against the prisoner, he shall be 

brouqht to trial within 180 days after he 

shall have caused to be delivered to the 

prosecutins officer and the appropriate court 

of the prosecutinq officer's jurisdiction 

written notice of the place of his imprison- - 

ment and his request for a final disposition 

to be made of the indictment, information, or 

complaint r . 1 . . . The request of the prisoner 

shall be accompanied by a certificate of the 

appropriate official having custody of the 

prisoner, stating the term of the commitment 

under which the prisoner is being held, the 

time already served, the time remaining to be 

served on the sentence, the amount of good 

time earned, the time of parole eligibility of 

the prisoner, and any decisions of the state 

parole agency relating to the prisoner. 

[Emphasis added.] 
Under the express terms of the IAD, Wolfe was required to send 

written notice and a request for final disposition of his information to both the Missoula County Attorney's Office and the District 

Court. This he failed to do on two different occasions. We 

therefore hold that Wolfe was not denied his right to a speedy 

trial because he failed to comply with IAD procedure which would 

trigger the 180-day speedy trial provision. 

2. Did the District Court err by subjecting Wolfe to double 

jeopardy when it entered judgment against him on possession of 

explosives and criminal mischief? 

The Fifth Amendment of the United States Constitution protects 

a defendant "against both multiple prosecutions and multiple 

punishments imposed at a single prosecution for the same offense." 

State v. Close (1981), 191 Mont. 229, 245, 623 P.2d 940, 949 

(citing North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 

2072, 23 L.Ed.2d 656). See also 5 46-11-502, MCA (1989) (recodified at 5 46-11-410, MCA (1991)). Here, Wolfe argues that he was 

subjected to double jeopardy because the crime of criminal mischief 

could not have occurred without the crime of possession of 

explosives. In particular, Wolfe relies upon 5 46-11-502(2), MCA 

(1989), which provides that a person may not be convicted of more 

than one offense if I1one offense consists only of a conspiracy or 
other form of preparation to commit the other. (Emphasis 

added. ) 

Section 46-11-502, MCA (1989), was enacted as part of the 1973 

Criminal Code. Its source was Model Penal Code, 5 1.07 (Official 

Draft and Revised Comments 1962) . Model Penal Code, 5 1.07 commentary at 110, provides in pertinent part: 

Whether certain conduct is a form of preparation to commit another crime is left for 

judicial interpretation on the facts of the 

particular case in light of the legislative 

purpose reflected in the criminal statutes 

that are involved [footnote omitted] [emphasis 

added]. 

Failure to limit the applicability of 46-11-502(2), MCA (1989), 

may lead to results beyond those intended by the adoption of the 

statute. For example, Neal v. State (Calif. 1961), 357 P.2d 839, 

was a habeas corpus proceeding resulting out of Neal's criminal 

conviction of arson and two counts of attempted murder. The 

evidence showed that Neal had thrown gasoline into the bedroom of 

Mr. and Mrs. Raymond and ignited it leaving the Raymonds severely 

burned. Neal, 357 P.2d at 841. In the habeas corpus proceeding, 

the California Supreme Court relied on a statute comparable 

§ 46-11-502(2), MCA (1989), and held that the arson was the means 

of perpetrating the attempted murders and that therefore the 

conviction of both arson and attempted murder violated the statute 

prohibiting conviction of two crimes when one was merely preparato- 
ry to the other. Neal, 357 P.2d at 843. In our view, that was not 

a just result. 

As a further example of the unjust result obtained under 

Wolfefs interpretation of 46-11-502(2), MCA (1989), consider the 

effect of application of that statute to State v. Clawson (1989), 

239 Mont. 413, 781 P.2d 267. In that case, Clawson was convicted 

of brutally abducting, torturing, committing multiple deviate 

sexual acts upon the victim, and, finally, after slamming her head 

into a rock and stabbing her fifteen times in her chest and 

abdomen, leaving her for dead. Clawson, 239 Mont. at 415-16, 781 

P.2d at 269-70. He was convicted of aggravated kidnapping, sexual 

intercourse without consent, and attempted deliberate homicide. 

Clawson, 239 Mont. at 414, 781 P.2d at 268. Under the interpretstion of § 46-11-502(2), MCA (1989), urged by Wolfe, Clawson could 

arguably have been convicted only of attempted deliberate homicide. 

The State asserts that § 46-11-502(2), MCA (1989), addresses 

only inchoate crimes. Solicitation, conspiracy, and attempt are 

enumerated as the inchoate offenses in Title 45, Chapter 4, MCA. 

The State argues that these are the offenses which constitute Itform 

of preparation to commit another crimet1 under 5 46-11-502(2), MCA 

(1989). Invoking our power of judicial interpretation as recognized in the comments to the Model Penal Code, we agree. The two 

criminal statutes involved here are 5 45-8-335, MCA (1987), 

possession of explosives, and 5 45-6-101, MCA (1987), criminal 
mischief. The legislative histories of these statutes do not 

reflect an intent to make possession of explosives a preparatory 

act to committing criminal mischief. To the contrary, neither 

statute references the other. We conclude that 46-11-502 (2), MCA 

(1989) , is limited in its application to situations where one crime 

charged is an inchoate crime. Neither criminal mischief nor 

possession of explosives is an inchoate crime. We therefore hold 

that, in this instance, 5 46-11-502 (2) , MCA (1989) , does not apply. 

Wolfe cites State v. Mitchell (1981), 192 Mont. 16, 625 P.2d 

1155. The defendant in Mitchell was convicted of criminal mischief 

and solicitation regarding the burning of a trailer house. On 

appeal, the defendant argued and this Court agreed that 9 46-11- 

502(2), MCA, applied to the case and the charged offenses, 

solicitation and felony criminal mischief. Mitchell, 192 Mont. at 

22-23, 625 P.2d at 1159. However, solicitation is specifically 

described among the inchoate crimes listed in Title 45, Chapter 4, 

MCA. Therefore, 5 46-11-502(2), MCA, was properly applied in that 

case, but that holding is not relevant here. 

The facts of this case are analogous to the facts of State v. 

Davis (1978), 176 Mont. 196, 577 P.2d 375. In Davis, the defendants, two inmates, were convicted of felony criminal mischief and 

attempted escape when they dug a hole in the wall of the Powell 

County jailhouse. Davis, 176 Mont. at 197, 577 P.2d at 376. In 

that case, this Court did not apply 5 46-11-502(2), MCA, or analyze 
whether the defendants* digging of the hole was a form of preparation to commit an attempted escape. Instead, this Court held that 

double jeopardy did not apply because the statutes defining the 

charged offenses had no common elements citing, inter alia, 

Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 

L.Ed. 306. Davis, 176 Mont. at 199, 577 P.2d at 375. 

In Blockburqer, 284 U.S. at 304, 52 S.Ct. at 182, 76 L.Ed. at 

309, the Court stated: 

"The applicable rule is that where the same 

act or transaction constitutes a violation of 

two distinct statutory provisions, the test to 

be applied to determine whether there are two 

offenses or only one, is whether each provision requires proof of an additional fact 

which the other does not. If [Citation omitted. ] 

We hold that the Blockburqer test is the proper test to apply 

to the facts of the present case. Here, the applicable statutes 

concern possession of explosives under 5 45-8-335(1), MCA (1987), 

and criminal mischief under 5 45-6-101(1), MCA (1987) . Section 45- 

8-335(1), MCA (1987), provided in pertinent part: 

(1) A person commits the offense of possession of explosives if he possesses, manufactures, transports, buys, or sells an explosive 

compound, flammable material, or timing, 

detonating, or similar device for use with an 

explosive compound or incendiary device and: 

(a) has the purpose to use such explosive, 

material, or device to commit an offense; . . . . 

Section 45-6-101(1), MCA (1987), provided in pertinent part: 
(1) A person commits the offense of criminal 

mischief if he knowingly or purposely: 

(a) injures, damages, or destroys any property of another or public property without 

consent; . . . . 

Regarding this case, the elements of possession of explosives 

are that a person possesses an explosive compound and has the 

purpose to commit an offense; the elements of criminal mischief are 

that a person knowingly or purposely injures or destroys public 

property without consent. The crime of possession of explosives 

requires the possession of an explosive compound where the crime of 

criminal mischief does not. The crime of criminal mischief 

requires injury or damage to property where the crime of possession 

of explosives does not. Because proof of one crime involves proof 

of a fact not included in the other crime as stated in the 

Blockbur~er test, we hold that Wolfe was not subjected to double 

j eopardy . 

3. Did the District Court err by prejudicing Wolfe when it 

admitted evidence of Wolfets prior acts for the jury's considerat ion? 

On July 3, 1990, the State filed with the District Court a 

notice of intent to introduce evidence of other acts under the 

requirements of State v. Just (1979), 184 Mont. 262, 602 P.2d 957 

and 5 46-18-503, MCA (1989) (recodified at 9 46-13-108, MCA 
(1991) ) . The following were the other acts as provided in this 

notice: 

1. Conviction of I1 COUNTS: FELON IN POSSESSION OF FIREARMS, both Felonies, in Cause No. 

CR 87-7-M, United States District Court for 

the District of Montana. In such case the 

Defendant entered a plea of guilty on March 

27, 1987, was sentenced on April 24, 1987, and 

was taken into custody for execution of the 

sentence on April 27, 1987. 

2. The offense of CRIMINAL POSSESSION OF 

DANGEROUS DRUGS WITH INTENT TO SELL, a Felony, 

in Cause No. 7663, Fourth Judicial District, 

Missoula County, Montana, committed on December 11, 1986, and evidence relating to a 

search of the Defendant's residence on the 

above date in which dynamite, blasting caps, 

and Aisla I1Thistlett brand safety fuses were 

found . 

On July 11, 1990, in an in-chambers proceeding prior to 

Wolfe's trial, the District Court denied the State's request to 

introduce evidence of prior convictions and charged offense, but 

allowed the State to introduce the fuses, Atlas Giant Gelatin Stick 

dynamite, and blasting caps seized pursuant to the search warrant. 

Wolfe argues that the District Court erred when it allowed the 

admission of the fuses, dynamite, and blasting caps. We disagree. 

Rule 404 (b) , Montana Rule of Evidence, provides that "other 

crimes, wrongs or actstt evidence may be admissible for the purposes 

stated in the rule. One additional basis for admission of such 

evidence recognized by this Court is when evidence of other crimes, 

wrongs, or acts is introduced as part of the corpus delicti of the 
crime charged. State v. Ungaretti (1989), 239 Mont. 314, 319, 779 

P.2d 923, 926. Other crimes, wrongs, or acts evidence may be 

introduced if they "are inextricably or inseparably related to the 

crime charged." Unsaretti, 239 Mont. at 319, 779 P.2d at 926 

(citing State v. Gillham (1983), 206 Mont. 169, 679 P.2d 544). 

Here, fuse found by police in Wolfe's bedroom closet in 

December 1986 was I1Aisla1l Thistle brand fuse, a rare brand of fuse, 

and the same brand of fuse used to blow up the police car four 

months later on April 19, 1987. The dynamite seized in December 

1986 was not Ireco Iremite, the dynamite determined by experts to 

have been used to blow up the police car, but rather, Atlas Giant 

Gelatin Sticks, the other type of dynamite purchased by Montana 

Hearth Company for its operation. Both types of dynamite were 

accessible to Wolfe while he was employed at Montana Hearth 

Company. 

The difference in the brands of the dynamite seized from 

Wolfe's bedroom closet in December 1986 and the dynamite determined 

to have been used in the police car bombing is not determinative in 

this case. What is determinative is that the dynamite, as well as 

the fuses and blasting caps seized in December 1986, is evidence 

closely related to the crimes charged against Wolfe in 1987, 

possession of explosives and criminal mischief. Moreover, the 

District Court only allowed evidence of the fuse, dynamite, and 

blasting caps found in the December 1986 search. It disallowed any 
reference to Wolfels past convictions or offense to avoid any undue 

prejudice toward Wolfe. We hold that the fuse, dynamite and 

blasting caps seized in December 1986 were part of the corpus 

delicti of the 1987 crimes, and the District Court committed no 

error in allowing them into evidence at Wolfels trial. 

4. Did the District Court err by denying Wolfels 1) motions 

for mistrial and related objections, and 2) motion for a directed 

verdict? 

Wolfels counsel moved for a mistrial after a federal agent 

testified that the fuse and explosives were seized under a federal 

search warrant. After this reference, the District Court issued a 

cautionary instruction to the jury concerning other crimes 

evidence. Thereafter, the District Court denied Wolfe's motion for 

mistrial. The record is devoid of further references to the 

federal search warrant. 

An unresponsive comment was made by Chaussee, who stated, "1 

don't feel anybody could be happy about going to jail." Wolfels 

counsel refused the District Courtls offer of a cautionary 

instruction to the jury after Chausseels comment, and then moved 

the District Court for a mistrial based on this comment. The 

District Court once again denied the motion. The record is devoid 

of further references to Wolfe's past or future imprisonment. 
Wolfefs counsel objected to a reference made by Conover, 

Wolfefs then-girlfriend, that revealed Wolfe was in possession of 

firearms one week following the police car explosion incident. The 

District Court overruled the objection. 

Finally, Wolfe argues that the District Court erred when it 

denied Wolfef s motion for a directed verdict because the juryf s 

verdict in this case was against the weight of the evidence. 

"There must be a manifest necessity to declare a mistrial and 

the defendant must have been deprived of a fair and impartial 

trial." Clawson, 239 Mont. at 423, 781 P.2d at 273 (citation 

omitted). We hold that any prejudice caused to Wolfe by the 

references cited above was minimal in light of the entire record 

and the references did not deprive him of a fair and impartial 

trial. 

Regarding Wolfefs motion for a directed verdict, we find that 

substantial evidence supported the jury's verdict in this case and 

that the District Court properly denied Wolfefs motion for a 

directed verdict at the close of this case. We therefore hold that 

the District Court committed no error when it 1) denied Wolfe's 

motions for mistrial and related objections, and 2) denied Wolfe's 

motion for a directed verdict. 
We concur: 
Justice Terry N. Trieweiler specially concurring in part and 

dissenting in part. 

I concur with those parts of the majority opinion which affirm 

the defendant's conviction of criminal mischief pursuant to 

5 45-6-101, MCA. 

I dissent from that part of the majority opinion which holds 

that, under the circumstances in this case, the defendant can be 

convicted of both criminal mischief and possession of explosives 

without violating 5 46-11-502(2), MCA. 

A person violates 5 45-8-335, MCA, if: 

[H]e possesses . . . an explosive compound . . . and: 

(a) has the purpose to use such explosive, material, or 

device to commit an offense . . . . [Emphasis added.] 

In other words, an essential element of the crime of possession of 

explosives is the intent to commit an offense. 

In this case, the State proved a violation of 5 45-8-335, MCA, 

by establishing that defendant possessed explosives with the intent 

to damage or destroy a City of Missoula police vehicle. 

Section 45-6-101, MCA, provides that: 

(1) A person commits the offense of criminal mischief if 

he knowingly or purposely: 

(a) . . . damages, or destroys any property of another 

or public property without consent . . . . 

The defendant could not have committed the crime of criminal 

mischief without first having formed the intent to damage or destroy 

the City of Missoula's police vehicle. The formation of that intent 

was merely preparatory to commission of the offense. However, in 
this case, defendant is being separately punished for both formation 

of the intent and commission of the act of criminal mischief. 

To understand the significance of what is happening here, you 

need only look at the penalties provided for under each statute. The 

maximum penalty for criminal mischief under 5 45-6-101, MCA, is ten 

years. The maximum penalty for possession of explosives under 

5 45-8-335, MCA, is 20 years. In this case, defendant was sentenced 

to the maximum term for each offense, with ten years suspended. 

However, the sentences are to be served consecutively. 

The majority relies on language from Blockburger v. United 

States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, for the 

proposition that the consecutive sentences imposed in this case do 

not violate the Fifth Amendment prohibition against double jeopardy. 

However, it is not necessary to consider whether what was done here 

violates the United States Constitution. Stacking on prison terms 

for various acts which culminate in one offense is exactly what 

§ 46-11-502(2), MCA, was designed to prevent. 

Forming the intent to bomb the Missoula police vehicle, and 

actually carrying out that intent, constitute the Ifsame transactionvv 

under Montana criminal law. Section 46-11-501, MCA, defines "same 

transactionn as follows: 

(1) The term "same transactionl1 includes conduct 

consisting of: 

(a) a series of acts or omissions which are motivated by 

a purpose to accomplish a criminal objective and which 

are necessary or incidental to the accomplishment of that 

objective . . . . 
In this case, possessing explosives was not an offense in and 

of itself. In order to constitute a crime, the explosives had to 

have been possessed by the defendant for the purpose of committing 

a crime. The only crime for which defendant possessed explosives in 

this case was to blow up the Missoula City police vehicle. 

Defendant's possession of explosives and actually blowing up the 

police vehicle were a series of acts motivated by a single criminal 

objective, and therefore, constitute the "same transaction." 

Under these circumstances, 5 46-11-502, MCA, provides the 

following prohibition: 

When the same transaction may establish the commission of 

more than one offense, a person charged with such conduct 

may be prosecuted for each such offense. He may not, 

however, be convicted of more than one offense if: 

(2) one offense consists only of a conspiracy or other 

form of preparation to commit the other . . . . 

Clearly, in this case, possessing explosives for the purpose of 

blowing up a police vehicle was a I1form of preparation" for actually 

blowing up the same vehicle. 

The majority disposes of 5 46-11-502(2), MCA, by concluding 

(without citation to any authority) , that If§ 46-11-502 (2) , MCA . . . 

is limited in its application to situations where one crime charged 

is an inchoate crime." I disagree with that conclusion because it 

provides a requirement for the application of 5 46-11-502(2), MCA, 

which was neither provided by the legislature, nor finds precedent 

in any case law which has been cited to this Court. 
The majority goes on to conclude that I1[n]either criminal 

mischief nor possession of explosives is an inchoate crime." 

However, I do not agree. 

I'In~hoate~~ is described in Black's Law Dictionary as 

I1[i]mperfect; partial; unfinished; begun, but not completed . . . . II 

A necessary element of the crime of llpossession of explosive^^^ is 

"the purpose to use such explosive, material, or device to commit an 

offense . . . ." Therefore, possession of explosives is exactly the 

kind of Itinchoate crime" or Itanticipatory offense1! for which double 

punishment is proscribed under 5 46-11-502(2), MCA. 

The legislature has seen fit to limit punishment for criminal 

mischief to ten years in the State Prison. However, in essence, the 

defendant in this case has had another 20 years added on to that 

sentence for forming the intent to commit the crime in the first 

place. That is clearly a double punishment for the same crime. 

For these reasons, I would reverse that part of the District 

Court judgment which imposed a sentence of 20 years on the defendant 

for possession of explosives. I would vacate and dismiss that 

sentence, and affirm that part of the District Court judgment 

convicting the defendant of criminal mischief and sentencing him to 

the State Prison for that crime. 

I concur with the foregoing partial concurrence and partial 

dissent of Justice Trieweiler.