No. 89-012 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsPAUL ANTHONY HEINRICH, 

Defendant and Appellant. 

APPEAL FROM: ~istrict Court of the Seventh Judicial ~istrict, 

In and for the County of ~ichland, 

The Honorable Dale Cox, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

J. Douglas Alexander, Sidney, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

~atricia J. Schaeffer, Asst. Atty. General, Helena 

victor G. Koch, County Attorney; Phillip Carter, Deputy, 

Sidney, Montana 

Submitted on Briefs: Dec. 14, 1989 

Decided: February 14, 1990 , . 

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Honorable Joel G. Roth, District Judge, delivered the Opinion of 

the Court. 

The defendant appeals his conviction of felony assault from 

the District Court of the Seventh Judicial District, Richland 

County. During the jury trial, the trial court admitted evidence 

of other crimes committed by the defendant. The defendant, on 

appeal, contends that by admitting said evidence prejudicial error 

was committed which requires reversal. We agree. 

PRE-TRIAL PROCEEDINGS 

As the result of a reported shooting incident on August 11, 

1987, at the defendant's trailer house near Sidney, Montana, and 

the subsequent investigation, the Richland County Attorney on 

August 17, 1987, filed two criminal charges against the defendant: 

Count I, alleged assault, a felony, and Count 11, alleged criminal 

possession of dangerous drugs (marijuana), a felony. Count I 

alleged that the defendant purposely or knowingly caused reasonable 

apprehension of serious bodily injury in another by use of a weapon 

when, on or about August 11, 1987, the defendant pointed a revolver 

in the direction of a vehicle occupied by Henry David LaFever and 

John P. Knoop and caused Henry David LaFever to believe he might 

be seriously injured or killed by a shot from the revolver, in 

violation of 5 45-5-202(2) (b), MCA. Count I1 alleged that on or 

about August 11, 12 or 13, 1987, or any combination of those three 
dates, the defendant possessed a dangerous drug by having in his 

possession more than sixty grams of marijuana, in violation of 

§ 45-9-102 (4), MCA. 

The defendant pled not guilty to both charges on September 16, 

1987, and filed a notice of defense of justifiable use of force as 

to the assault charge. 

The State on October 30, 1987, gave its written notice of 

intent to introduce evidence of other crimes (commonly referred to 

as the Just notice). Pursuant to the Just notice, the State sought 

a pretrial ruling from the trial judge which would allow the State 

to offer evidence of three other crimes committed by the defendant. 

The Just notice described the evidence would be: (1) a July 27, 

1983, offense of criminal possession of dangerous drugs, a felony, 

to which the defendant pled guilty on November 16, 1983 (offered 

to prove the defendant's motive, intent, absence of mistake or 

accident in the instant drug charge); (2) a July 29, 1983, offense 

of intimidation, a felony, for which the defendant was sentenced 

on January 4, 1984 (offered to prove defendant's motive, intent, 

preparation, plan, absence of mistake or accident in the instant 

assault charge) ; and (3) evidence of the seizure of dangerous drugs 

in defendant's trailer house on August 12, 1987 (offered to prove 

defendant's motive, intent, absence of mistake or accident and to 

disprove defendant's claim that the drugs belonged to another 

person in the instant drug charge). 
The defendant's attorney moved on February 11, 1988, to 

exclude the evidence of the other crimes. The defendant's motion 

to exclude and the State's Just notice were heard by the trial 

court on the morning of the first day of the jury trial, March 7, 

1988. 

The jury trial commenced on March 7, 1988. The roll call of 

the summoned jurors was completed and the pre-voir dire panel was 

seated in the jury box. The prospective jurors were then excused 

and the defendant changed his plea to guilty to Count 11, criminal 

possession of dangerous drugs, a felony. After questioning the 

defendant, the trial judge accepted the guilty plea. There is no 

appeal from the defendant's conviction of Count 11. 

The State's Just notice and the defendant's opposition thereto 

were then argued to the trial court. The judge denied the 

defendant's motion to exclude the other crimes evidence and allowed 

the State to offer evidence of the defendant's 1983 drug conviction 

and 1983 intimidation conviction and the evidence of the August 12, 

1987, seizure of marijuana at the defendant's trailer house and 

evidence of the August 13, 1987, seizure of the bag of marijuana 

thrown from the defendant's car. The reasoning of the trial judge 

was that the evidence of the other crimes would go to prove the 

motive of the defendant in assaulting Henry LaFever with the 

revolver. The motive was to scare and intimidate Henry LaFever 

because the defendant thought Henry LaFever was telling the Sidney 
law enforcement people that he (the defendant) was in possession 

of and dealing in dangerous drugs. Additionally, the evidence of 

the other crimes would go to rebut the defendant's asserted defense 

of justifiable use of force for self-defense. 

The trial then proceeded with the voir dire of the jury panel, 

the exericse of peremptory challenges, the opening statements of 

counsel and the presentation of evidence. 

THE EVIDENCE AT TRIAL 

Twelve witnesses testified at trial (including the defendant) 

and certain documents and items of physical evidence were admitted. 

The evidence established the following chain of events. 

On August 11, 1987, about 4:45 p.m., Henry LaFever and John 

Knoop drove in LaFeverVs Chevy pick-up truck to the defendant's 

trailer house which was located near Sidney, Montana, in Richland 

County. LaFever intended to confront the defendant about rumors 

that he (the defendant) had been spreading around town that LaFever 

called the police on him (the defendant) for possessing or dealing 

dangerous drugs. When LaFever and Knoop arrived at the defendant's 

trailer house, no one was there. A few minutes later they observed 

the defendant's 1967 black Camaro approaching the trailer house on 

the gravel road. The Camaro pulled into the yard and stopped. The 

occupants of the Camaro were the defendant (driving) and passengers 
Gisele LaFever (Henry's sister who was also the girlfriend of the 

defendant) and Robert Wagner. 

Wagner testified that LaFever said, "Get out of the car. I'm 

going to kill you, you little bastard." LaFever testified, "1 

asked him [the defendant] why held been spreading around town that 

I'd called the police on him." The defendant testified that he 

suspected LaFever of telling the police that he (the defendant) was 

dealing drugs and he told that to LaFever during the ensuing fight. 

LaFever grabbed the defendant around the neck as the defendant was 

getting out of his car and threw him on the ground and banged his 

head on the ground. A wrestling match resulted between the two men 

which lasted for a few minutes with LaFever getting the best of the 

defendant. LaFever is 6' tall and weighs about 180 to 200 pounds, 

while the defendant is 5'7'' and weighs about 135 pounds. Wagner 

picked up a piece of pipe to assure that Knoop would not enter the 

fracas. While the two men were wrestling on the ground, Gisele 

grabbed her brother by the hair and told him to stop and to leave. 

Henry LaFever backhanded Gisele across her face. The 

defendant broke away from Henry and ran into the trailer house 

where he obtained a .22 caliber Ruger Bearcat revolver from his 

dresser and came back outside. In the meantime, Henry LaFever and 

Knoop were in the process of getting into LaFeverls truck to leave. 

There was conflicting evidence about whether the defendant ever 

pointed the revolver at LaFever or Knoop or the truck. Two shots 
were fired by the defendant. Some of the testimony was to the 

effect that the defendant was pointing the revolver in the 

direction of the truck when the shots were fired. Other testimony 

was that the defendant pointed the revolver upward toward the sky 

when he fired the two shots. There were no bullet holes found in 

LaFeverls truck and no one was injured by the shots. There was 

conflicting testimony about whether or not LaFever was wearing a 

knife on his belt. The defendant testified that he did not use the 

gun to intimidate LaFever about informing on him but rather the 

defendant shot the revolver to drive LaFever and Knoop off. The 

defendant testified that he was trying to convey a message to 

LaFever that he had a gun and it was loaded and if LaFever came 

back to hurt him he had some protection. 

Immediately after LaFever and Knoop left, the defendant told 

Gisele to go to the neighbor1 s house and call the sheriff. She 

did, and shortly thereafter Deputy Richland County Sheriff Charles 

Greenough arrived at the trailer house. He asked the defendant, 

Gisele and Wagner to write out statements of what had occurred. 

Greenough learned from the three that LaFever had assaulted the 

defendant. Nothing was said about defendant's use of the revolver. 

Greenough then went to Knoopls house and took statements from both 

Knoop and LaFever. From them he learned that a revolver had been 

fired by the defendant. 
Deputy Greenough knew that the defendant was on parole from 

the Montana State Prison and so he contacted Jack Fasig, the local 

parole officer, and informed Fasig of the fact that the defendant 

had fired a gun. Because it was a violation of the defendant 's 

parole conditions for him to possess a gun and the location of the 

gun was unknown, Fasig obtained a search warrant for the gun from 

the local justice of the peace on August 12, 1987. The search 

warrant authorized a search of the defendant's trailer house and 

his two vehicles. During the evening of August 12, 1987, Fasig 

and Greenough went to the defendant's trailer house (no one was 

there) and searched for the revolver. They did not find it. 

However, they did find (and seize) in the trailer house marijuana 

roaches, a marijuana cigarette, marijuana seeds and drug paraphernalia (a pipe) . 

During the morning of August 12, 1987, Gisele went to the 

Sidney police and to the county attorney to discuss the fight. 

There was a dispute in the testimony about whether or not the 

defendant was with her at the police station and at the county 

attorney's office. 

Later the same morning (August 12), the defendant, Gisele and 

Wagner drove to a town about seventy miles from Sidney to take 

Wagner to a carnival where he was working. The defendant and 

Gisele returned to Sidney later that night and were spotted by 

police officer John Dynneson about midnight. Dynneson knew there 
was a search warrant outstanding for the gun and so he reported the 

sighting to Greenough. Greenough contacted Fasig who said he was 

on his way. 

Greenough and Bill Anderson, a jailer, left by car to find the 

defendant's car (the Camaro). They found it and stopped the 

defendant. The defendant was driving and Gisele was a passenger. 

Greenough told the defendant that Fasig had a search warrant for 

the car to search for the gun and that Fasig was on his way. 

Greenough asked the defendant to give him the gun if he had it, and 

the defendant opened the truck of the car voluntarily and produced 

the holstered revolver and placed it on the top of the car trunk 

as ordered by Greenough. Fasig had not yet arrived and it was cold 

so Greenough allowed the defendant and Gisele to get back into the 

car. The defendant and Gisele sat in the car about fifteen minutes 

and then unexpectedly and without permission from Greenough drove 

away quickly. The holstered revolver fell off the trunk and was 

retrieved by Anderson who then with Greenough gave chase. Fasig 

arrived about that time and both cars then pursued the defendant's 

car for three or four miles but were unable to catch the car. 

However, during the chase, Greenough observed the defendant's car 

stop momentarily and then continue on. After Greenough lost the 

defendant's car, he returned to the place on the road where he had 

seen the defendant stop and found a bag of marijuana near the road. 
Upon inspection of the .22 caliber Ruger Bearcat revolver, 

there were six cartridges in the cylinder; four live rounds and two 

empty rounds. 

During Greenough's pursuit of the defendant's car, Greenough 

contacted the sheriff's office in McKenzie County, North Dakota, 

for assistance in stopping the defendant. Later on August 13, 

1987, North Dakota Deputy Sheriff Lloyd Clock found the defendant's 

car empty and locked at a well site and reported the same to 

Greenough. The defendant's car was impounded and towed into 

Sidney. 

During the chase of the defendant's car and when the car 

momentarily stopped, not only was the bag of marijuana thrown out, 

but the defendant got out and hid in the bushes while Gisele drove 

off. Gisele, after abandoning the car at the well site, went to 

a friend's house and stayed there. A few days later the defendant 

telephoned her and Gisele then borrowed a car, picked up the 

defendant and they left the Sidney area. The defendant was later 

apprehended in the borrowed car in Park City, Montana. 

EVIDENCE OF OTHER CRIMES 

During the trial and over the continuing objections of 

defendant's lawyer, evidence was admitted about the other crimes 

committed by the defendant. The trial judge gave the cautionary 

instruction as the evidence was presented and also gave it as a 
final instruction as required by the Just case. Fasig testified 

about executing the search warrant for the revolver at the 

defendantls unoccupied trailer house on August 12, 1987. Although 

the revolver was not found, Fasig testified about finding and 

seizing marijuana roaches, a marijuana cigarette, marijuana seeds 

and drug paraphernalia (a pipe). 

Also during trial, Greenough testified about finding the bag 

of marijuana (containing over 200 grams) along the side of the road 

where the defendant had momentarily stopped on August 13, 1987. 

It is to be noted that the defendant had pled guilty to the 

drug charge at the beginning of this trial. There was no need for 

the State to present evidence relating to the drug charge as the 

defendant had admitted his possession of dangerous drugs. 

If the marijuana evidence of August 12 and August 13 was 

somehow related to the assault charge (which we do not accept), it 

was not admissible as "prior1' crimes evidence because the assault 

occurred on August 11, 1987. It would be ltsubsequentll crimes 

evidence and clearly not admissible under State v. Just (1979), 184 

Mont. 262, 602 P.2d 957. We fail to understand how the August 12 

and August 13 marijuana evidence is similar to the assault offense 

or how it tends to establish a common scheme, plan or system. As 

indicated above, the August 12 and August 13 marijuana evidence was 

glsubsequent" to and not "prior" to the assault. We hold that the 

Just requirement of nearness in time relates to other crimes or 
wrongs committed "priorw to the offense for which the defendant is 

being tried. The prejudice to the defendant by allowing the postassault marijuana evidence to be admitted to prove the assault 

offense is obvious and is not harmless. 

Also during the trial, Fasig testified about the defendant's 

July 27, 1983, dangerous drug offense and his conviction thereof. 

In applying the four factors set out in the Just case to this prior 

crimes evidence, we consider the similarity of it to the present 

assault charge and find no similarity; the nearness in time of the 

1983 drug conviction to the 1987 assault and find over four years 

intervened; the tendency of the 1983 drug conviction to establish 

a common scheme, plan or system and find no common scheme, plan or 

system. The prejudice to the defendant by admitting the prior 1983 

drug conviction when it does not satisfy the four factors test of 

the Just case is evident and is not harmless error. 

Finally, during the trial, both Fasig and witness Loren James 

Lowry testified about the defendant's July 29, 1983, felony 

intimidation offense. The testimony was to the effect that the 

defendant had intimidated a person named Steve Herman because the 

defendant thought Herman had informed (about having drugs) on 

either the defendant or the defendant's then common-law wife, Pam 

Junso. Fasig testified that the defendant had threatened to kill 

Herman if Herman testified against the defendant in connection with 

the July 27, 1983, drug offense. Lowry testified that the 
defendant wanted to know from Herman who had informed on him and 

there was an altercation between the defendant and Herman (a 

shoving match) but no fists were swung and no weapon was involved 

and no threats were made by the defendant. Unfortunately, a 

certified copy of the intimidation charge and conviction was not 

made part of the record to clarify whether it was the defendant or 

the defendant's common-law wife on whom Herman had presumably 

informed. 

Again, applying the four factors of the Just case to the 

defendant's 1983 intimidation offense, we find the similarity of 

the intimidation offense to the present assault charge to be 

lacking (the victims in the two offenses were different, no weapon 

was used in the intimidation offense whereas a revolver was used 

in the assault, and the defendant sought out Herman in 1983 whereas 

LaFever sought out the defendant in the present assault offense); 

the 1983 intimidation offense was over four years prior to the 

present assault charge; and the 1983 intimidation offense does not 

tend to establish a common scheme, plan or system. The prejudice 

to the defendant in allowing the 1983 intimidation evidence is 

clear and is not harmless. 

Rule 404(b) of the Montana Rules of Evidence provides: 

Other crimes, wrongs, acts. Evidence of other 

crimes, wrongs, or acts is not admissible to 

prove the character of a person in order to 

show that he acted in conformity therewith. 

It may, however, be admissible for other 
purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident. 

The Just case requires that the trial judge consider the 

proposed other crimes evidence at a pretrial hearing in light of 

the four factors set forth in Just: similarity of crimes; nearness 

in time; tendency to establish a common scheme, plan or system; and 

that the probative value of the other crimes evidence is not 

substantially outweighed by prejudice to the defendant. Other 

cases discussing the required Just case analysis are State v. Case 

(1980), 190 Mont. 450, 621 P.2d 1066, and State v. Hansen (1980), 

187 Mont. 91, 608 P.2d 1083, afftd after remand, 633 P.2d 1202, 38 

St.Rep. 1541. 

In light of our discussion above, we conclude that the trial 

judge erred in his pretrial ruling which would permit the State to 

present the other crimes evidence, and there was prejudicial error 

when the other crimes evidence was admitted during trial. 

CONCLUSION 

This case is an example of the State presenting other crimes 

evidence which does not satisfy the strict requirements of the Just 

decision. The admission of other crimes evidence is the exception 

and not the rule. The defendant was prejudiced by the other crimes 

evidence allowed into evidence in this case and his conviction of 
felony assault is reversed. This cause is remanded to the District 

Court of the Seventh Judicial District. 

Q.&c.z.</ 

Hon. jdel G. Roth, District Judge, 

sitting in place of Justice R.- C. 

McDonough, who deems himself disqualified. 

We concur: 

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406. Ted L. ~i>-*$/ District 

Judge, sitting byplace of Justice 

Diane G. Barz, who deems herself 

disqualified. 
IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 89-012 

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ZY STATE OF MONTANA, 1 -. O cn 

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Plaintiff and Respondent, 1 I -7 m, 

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V. 1 0 R D E R F 1? C77 ;: 

PAUL ANTHONY HEINRICH, 

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Defendant and Appellant. 1 

On February 14, 1990, this Court entered its Opinion in this 

appeal. 

On February 23, 1990, the State of Montana filed a petition 

for rehearing and a response to the petition for rehearing was 

filed by appellant on March 27, 1990. The Court having considered 

the petition for rehearing and response thereto, 

IT IS ORDERED: 

1. The following paragraph beginning at line 14 on page 11 

of the Opinion of the Court is hereby deleted: 

If the marijuana evidence of August 12 and 

August 13 was somehow related to the assault 

charge (which we do not accept), it was not 

admissible as "priorI1 crimes evidence because 

the assault occurred on August 11, 1987. It 

would be llsubsequentu crimes evidence and 

clearly not admissible under State v. Just 

(1979), 184 Mont. 262, 602 P.2d 957. We fail 

to understand how the August 12 and August 13 

marijuana evidence is similar to the assault 

offense or how it tends to establish a common 

scheme, plan or system. As indicated above, 

the August 12 and August 13 marijuana evidence 

was llsubsequentll to and not Inprior" to the 

assault. We hold that the Just requirement of 

nearness in time relates to other crimes or 

wrongs committed ltpriorll to the offense for 
which the defendant is being tried. The 

prejudice to the defendant by allowing the 

post-assault marijuana evidence to be admitted 

to prove the assault offense is obvious and is 

not harmless. 

2. The following paragraph shall be inserted in the Opinion 

of this Court in place of the paragraph above-deleted: 

We fail to understand how the August 12 and 

August 13 marijuana evidence is related or 

similar to the assault charge or how it tends 

to establish a common scheme, plan or system. 

The prejudice to the defendant by allowing the 

August 12 and 13 marijuana evidence to be 

admitted to prove the assault offense outweighs its probative value and is not harmless. 

3. On page 9, line 10, of the Opinion Ittruck of the carM 

should read Ittrunk of the car." 

4. Let remittitur issue forthwith. 

DATED this /yg day of April, 1990. 

Hon. 4661 G. ~oth, ~istr-ict Judqe, - - 

sittidcj in place of Justice R. C. 

McDonough 

We concur: 
Ho6. Ted L. ~i-zdp!r/)District 

Judge, sitting jln&lace of 

Justice Diane G. Barz