No. 90-180 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

ALLEN RAY "SPEEDY" MATT, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Lake, 

The Honorable C. B. McNeil, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Benjamin R. Anciaux, Polson, Montana 

For Respondent: 

Marc Racicot, Attorney General, Helena, Montana; 

Patricia Schaeffer Jordan, Assistant Attorney 

General, Helena, Montana; Larry Nistler, County 

Attorney, Polson, Montana; Robert S. Anderson, 

Deputy County Attorney, Polson, Montana 

Submitted on briefs: August 23, 1990 

Filed: 

Decided: October 25, 1990 
Justice William E. Hunt, Sr. delivered the Opinion of the Court. 

Allen Ray Matt appeals from the judgment of the Twentieth 

Judicial District, Lake County. Following trial and conviction for 

the offenses of domestic abuse, third offense and tampering with 

a witness, Matt was sentenced to five years, with two years 

suspended and ten years with five years suspended. The District 

Court further ordered these terms to be served consecutively and 

designated Matt a dangerous offender for purposes of parole. We 

affirm. 

The issues we find pertinent to our review are: 

1. Whether the State improperly introduced evidence of other 

crimes, wrongs and acts of Matt; 

2. Whether the State violated the District Court's discovery 

order or intentionally suppressed evidence; 

3. Whether the information was insufficient to give Matt 

notice of the charges against him; 

4. Whether Matt was subjected to double jeopardy on the 

charge of domestic abuse; 

5. Whether the evidence was insufficient to support a verdict 

of guilty for the offense of tampering with a witness; 

6. Whether there was cumulative error in the proceedings and 

trial against Matt. 

The offenses which are the subject of this appeal arose out 

of prior incidents of domestic abuse which involved Matt, and the 

principle witness, Violet Weaselhead. Apparently Matt and 

Weaselhead were engaged to be married. However, after some 

2 
1 1 

I . disagreements, Matt assaulted Weaselhead on April 30 and May 1, 

1989. Matt was convicted of these offenses in Justice Court on 

July 18, 1989. 

On May 2, 1989, following his arrest for domestic abuse, Matt 

went to Weaselhead's home. They then entered into a discussion 

about their relationship, which became heated. According to the 

record, Matt became angry and struck Weaselhead on the side of the 

head. Apparently, he also threatened her in the event she 

testified against him for the prior incidents of domestic abuse. 

Following this incident, Matt was arrested and charged with 

domestic assault and tampering with a witness. After his 

conviction on the two prior domestic abuse cases, the prosecutor 

amended the information to change the offense of domestic abuse to 

domestic abuse, third offense, a felony. 

Prior to trial, Matt submitted a motion in limine to prevent 

the introduction of any evidence of his prior two convictions into 

evidence. This motion was granted, to the extent that the evidence 

could not be used to prove intent to commit or a pattern of 

domestic abuse. However, the District Court did allow the State 

to introduce evidence that a charge had been filed and that Matt 

knew that a complaint had been filed against him for the limited 

purpose of proving the offense of tampering with a witness. 

Following trial and conviction, the District Court sentenced 

Matt to five years with two years suspended for the offense of 

domestic abuse. It also sentenced Matt to a term of ten years, 

with five years suspended for the offense of tampering with a 
witness. The District Court ordered these terms to be served 

consecutively and designated Matt a dangerous offender. This 

appeal followed. 

Matt argues that the State improperly introduced evidence of 

his two prior convictions for domestic abuse. According to Matt, 

the State, in violation of the procedures set forth in State v. 

Just (1979), 184 Mont. 262, 602 P.2d 957 and the District Court's 

order, improperly introduced evidence of Matt's two prior 

convictions. He further argues that the State's conduct prevented 

him from preparing his defense, because the introduced evidence was 

unexpected and no warning was given of its possible introduction. 

Section 45-7-206 (I), MCA, outlines the elements which must be 

proven by the State in order to obtain a conviction for the offense 

of tampering with a witness. The statute states: 

A person commits the offense of tampering with witnesses 

and informants if, believing that an official proceeding 

or investigation is pending or about to be instituted, 

he purposely or knowingly attempts to induce or otherwise 

cause a witness or informant to: 

(a) testify or inform falsely; 

(b) withhold any testimony, information, document, or 

thing; 

The clear language of the statute requires the prosecution to 

prove that Matt knew an Itofficial proceeding or investigation was 

pending or about to be instituted" and that he purposely or 

knowingly attempted to induce Violet Weaselhead to withhold 

testimony at his upcoming trial for domestic abuse. In order to 
establish these elements, it was necessary to prove that Matt knew 

these charges were pending against him and that Weaselhead would 

be a witness at his trial. 

Recognizing this, the District Court allowed evidence of the 

pending charges to be introduced into evidence. It strictly 

limited its use, however, and only allowed its introduction for the 

purpose of proving the elements of tampering with a witness. The 

District Court forbade the prosecution from using the evidence to 

establish any proof of the domestic abuse charge. In order to 

accomplish this goal, the State was precluded from introducing any 

testimony which would inform the jury of Matt's convictions for 

domestic abuse. It was only allowed to introduce evidence that 

Matt knew that a complaint had been filed. The State was not 

allowed to describe the nature of the crimes involved in the 

complaint. 

The introduction of this evidence was clearly for the purpose 

of proving the elements of tampering with a witness. There is no 

indication that it was used to prove the character of Matt. Nor 

was it used to establish motive, opportunity, preparation or 

absence of mistake. See Rule 404(3) (b), M.R.Evid. Given the 

limited purpose of this evidence, the trial court was not required 

to comply with the conditions set forth in State v. Just (1979) , 

184 Mont. 262, 602 P.2d 957. 

Matt further argues that the State introduced evidence of 

earlier incidents of domestic abuse during other portions of the 

trial. We have reviewed the transcript in full and have found that 
references to prior crimes were either elicited by Matt's attorney 

or were spontaneous comments made during witness testimony. Matt 

failed to register an objection to or request the judge to strike 

such testimony. We, therefore, find no reversible error in the 

introduction of the evidence. 

Matt next argues that the State violated the District Court's 

discovery order and that the State intentionally suppressed 

evidence. In support of this contention, Matt argues that the 

State did not supply him with copies of Weaselhead1s police 

statement or photographs of her injuries until the eve of trial. 

He also argues that the State never provided him with any paperwork 

concerning the prior domestic abuse charges. In order to 

ameliorate this problem, Matt maintains that the District Court 

should have sanctioned the State by either forbidding it from 

utilizing the nondisclosed evidence or declaring a mistrial. 

The State, on the other hand, argues that it was not required 

to provide Matt with any of the evidence. According to 5 46-15- 

322(1), the State need only "make available to the defendant for 

examination and prod~ction~~ all relevant documents. The State 

maintains it complied with this duty by allowing defense counsel 

full opportunity to examine its files. According to the 

prosecuting attorney, the files were open Itto scrutiny by defense 

counsel. l1 

Apparently, this right was not exercised. However, this fact 

cannot form a basis to support Matt's contentions that the State 
willfully suppressed evidence or refused to abide by the trial 

court's discovery order. There is no evidence that the State 

refused any request by defense counsel to examine any relevant 

evidence. Accordingly, Matt's contentions on this issue must fail. 

Matt next argues that the information was insufficient to 

inform him of the charges pending against him. He maintains that 

the information did not sufficiently apprise him of the facts 

surrounding the charge of tampering with a witness. 

We begin our analysis with the observation that the purpose 

of an information is to reasonably apprise the person of the 

charges against him so that he may have an opportunity to prepare 

his defense. State v. Matson (1987), 227 Mont. 36, 736 P.2d 971. 

In determining its sufficiency, the test to be applied is whether 

a person of common understanding would know what was charged. 

State v. Longneck (1981), 196 Mont. 151, 640 P.2d 436. 

In order to insure these requirements are met, the legislature 

has passed 5 46-11-4Ol()(c), MCA, which provides that an 

information shall: 

(c) charge the commission of an offense by: 

(i) stating the name of the offense; 

(ii) citing in customary form the statute, rule, or other 

provision of law which the defendant is alleged to have 

violated; 

(iii) stating the facts constituting the offense in 

ordinary and concise language and in such manner as to 

enable a person of common understanding to know what is 

intended ; 
(iv) stating the time and place of the offense as 

definitely as can be done; and 

(v) stating the name of the accused, if known, and, if 

not known, designating the accused by any name or 

description by which he can be identified with reasonable 

certainty. 

The amended information charged Matt with felony tampering 

with witnesses under 5 45-7-206(1), MCA. It further alleged: 

In the District Court of the Twentieth Judicial District 

of the State of Montana, in and for the County of Lake, 

on the 25th day of July, 1989, the above-named Defendant 

is accused by the Deputy County Attorney of said County 

in the name and by the authority of the State of Montana 

by this Information, of the offenses of DOMESTIC ABUSE, 

Third Offense, a Felony, Count I, as specified in MCA 45- 

5-206(1) (a), with punishment as provided in MCA 45-5- 

206(3) (fined [sic] not to exceed $50,000 or be 

imprisoned in the state prison for a term not to exceed 

5 years, or both); and TAMPERING WITH WITNESSES AND 

INFORMANTS, a Felony, Count 11, as specified in MCA 45- 

7-206 (1) , with punishment as provided in MCA 45-7-206 (2) 

(imprisoned in the state prison for a term not to exceed 

10 years, or be fined not more than $50,000, or both) , committed as follows: 

COUNT I1 

On or about May 2, 1989, near St. Ignatius, Lake County, 

Montana, the above-named Defendant, believing that an 

official proceeding or investigation was pending or about 

to be instituted, purposely or knowingly attempted to 

induce or otherwise cause a witness to withhold testimony 

or testify falsely, when he threatened Violet Weaselhead 

with physical harm if she assisted in the prosecution of 

criminal charges against him. 

As the above paragraphs make evident, the amended information 

named the defendant, cited the statute, recited the statutory name 

of the crime, stated the facts of the crime and stated the time and 

place of the crime. It clearly met all statutory requirements. 

However, Matt claims he was unaware of what charges or 
investigation was pending against him and that he was therefore 

unable to prepare his defense. 

We find this position untenable. The record clearly indicates 

that the defendant was arrested on May 1, 1989, for two domestic 

abuse charges involving Violet Weaselhead. The information 

informed Matt that the witness tampering charge involved threats 

against Weaselhead. There is no evidence of any other charges 

pending against Matt, which involved Weaselhead. Clearly, enough 

information was provided for a person of common understanding to 

be put on notice of the offense charged. 

IV 

On the first day of trial, Matt moved to dismiss the charges 

based upon double jeopardy. Prohibitions against double jeopardy 

are contained in the Fifth Amendment of the United States 

Constitution and Article 11, Section 25 of the Montana 

Constitution. The prohibition contained in these provisions 

protects a criminal defendant against a second prosecution for the 

same offense after acquittal, a second prosecution for the same 

offense after conviction and multiple punishments for the same 

offense. State v. Hall (1986), 224 Mont. 187, 728 P.2d 1339 revld 

on other srounds 481 U.S. 400 per curiam. 

Matt argues that he is unsure whether he was tried twice for 

the same offense. He maintains that due to the ambiguous nature 

of the information, he is unable to determine which domestic abuse 

charge was the subject of his trial. 
We find no merit in this argument. Matt was charged with two 

counts of domestic abuse, one committed on April 30 and the other 

committed on May 1, 1989. He was tried and convicted in Justice 

Court on these two offenses. He was also charged with domestic 

abuse for an incident which occurred on May 2, 1984. This offense 

occurred at the same time Matt committed the offense of tampering 

with a witness. This third domestic abuse charge was further 

distinguished by the fact that it was charged as a felony. It is 

clear that Matt was not tried for the same offense twice. The 

prohibition against double jeopardy does not protect a defendant 

against successive trials on separate counts arising from separate 

incidents. Matt's contentions on this issue were therefore 

properly dismissed. 

Matt next argues that there was insufficient evidence to 

support the jury's verdict of guilty on the offense of tampering 

with a witness. We disagree. In reviewing a jury verdict, this 

Court has adopted the following standard of review: 

[Tlhe relevant question is whether after viewing the 

evidence in the light most favorable to the prosecution, 

any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt. 

See State v. Jackson (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 

The elements which must be proven to support a verdict of 

guilty for the offense of tampering with a witness are: 

1) A person 
2:) believing that an official proceeding or investigation is 

pending or about to be instituted 

2) purposely or knowingly attempts to induce a witness 

4:) to withhold testimony. 

See 5 45-7-206, MCA. 

The evidence introduced during trial established that Matt was 

arrested and charged with a crime on May 1. These charges were 

still pending on May 2. Weaselhead testified that, as a result of 

these charges, Matt told her he was on bail and was not supposed 

to have any contact with her. This testimony clearly established 

Matt's knowledge that charges were pending against him. As to the 

intent to cause a witness to withhold testimony, Weaselhead 

testified that Matt told her not to go to court and pursue the 

charges, and that if she did, either he or his friends 'lwould get 

her." This testimony is sufficient to establish the intent to 

induce her not to testify. A reasonable juror could have found the 

elements of the crime beyond a reasonable doubt. 

VI 

Finally, Matt argues that this Court should reverse the jury 

verdict on the grounds that cumulative error prejudiced his right 

to a fair trial. We have found no prejudicial error and therefore 

the doctrine does not apply. 

Affirmed. 

- Justice 
We Concur: