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No. 97-705
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 51N STATE OF MONTANA, Plaintiff and Respondent,

v. DONALD G. WHITTECAR, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD: For Appellant: William Boggs, Attorney at Law, Missoula, Montana For Respondent: Hon. Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General; Helena, Montana Fred Van Valkenburg, Missoula County Attorney, Missoula,
Montana Submitted on Briefs: February 3, 2000

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Filed:

__________________________________________ Clerk Justice W. William Leaphart delivered the Opinion of the Court. ¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the following decision shall not be cited as precedent but shall be filed as a public document with the Clerk of the Supreme Court and shall be reported by case title, Supreme Court cause number and result to the State Reporter Publishing Company and to West Group in the quarterly table of noncitable cases issued by this Court. ¶2 Appellant Donald G. Whittecar (Whittecar) was charged with one count of felony theft and one count of felony theft, common scheme. Upon trial by jury, Whittecar was found guilty on both counts. Whittecar appeals from the judgment of conviction. We affirm. ¶3 Whittecar raises three issues on appeal: ¶4 1. Was Whittecar denied his right to effective assistance of counsel as the result of his attorney's conduct during voir dire? ¶5 2. Did the District Court properly deny Whittecar's motion to sever the two counts of theft? ¶6 3. Did the District Court properly deny Whittecar's motion to exclude other crimes evidence? ¶7 In September of 1994, Whittecar brought a wrecked Mercedes automobile to the Blue Ribbon Auto Body Shop in Missoula. Blue Ribbon gave Whittecar an estimate of about $2,600. Whittecar left the car with Blue Ribbon for about six months when he called and indicated that he had sufficient funds and that Blue Ribbon should go ahead with the repairs. Blue Ribbon completed the repairs and advised Whittecar that the car was ready in early May 1995 and that the bill came to $2,653. Whittecar gave Blue Ribbon $1,500 in cash and a check, post-dated a week in advance for May 16, 1995, for the balance of

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¶16 Whittecar also contends that his counsel was ineffective for "doing nothing" when, during the early stages of voir dire, a prospective juror disclosed that he had a judgment against Whittecar. The State points out that the very purpose of voir dire is to uncover the existence of such matters so that interested jurors can be excused for cause. We note that that is precisely what occurred in this case. That is, upon hearing that the panelist had a judgment against Whittecar, the District Court immediately excused the juror without objection or comment from either side. We conclude that defense counsel was not ineffective for not taking some further, unspecified, action. ¶17 2. Did the District Court properly deny Whittecar's motion to sever the two counts of theft? ¶18 Whittecar concedes the joinder of counts one and two of the Amended Information was proper since the two counts are similar. However, he contends that the court abused its discretion in denying his motion to sever. ¶19 A defendant seeking severance under § 46-13-211(1), MCA, bears the burden of proving that joinder of the charges is prejudicial. It is not sufficient that he prove some prejudice or that he stands a better chance of acquittal if separate trials are held. State v. Richards (1995), 274 Mont. 180, 188, 906 P.2d 222, 227 (citation omitted). To satisfy his burden, the defendant must prove that the prejudice is so great as to prevent a fair trial. Richards , 274 Mont. at 188, 906 P.2d at 227 (citation omitted). "As a result of the defendant's burden of proof, the strong pressure in favor of joinder of charges exerted by considerations of judicial economy and the deference afforded trial courts, we seldom reverse a trial court's denial of a criminal defendant's motion to sever." State v. Martin (1996), 279 Mont. 185, 192, 926 P.2d 1380, 1385 (citation omitted). ¶20 Whittecar has not shouldered his burden of proving that the prejudice was so great as to prevent a fair trial. He alleges in conclusory fashion that the joinder prejudiced him in three ways: a person facing multiple charges may be considered to be a "bad man;" proof of guilt on one count may be used to convict on a second count even though the proof would be inadmissible at a separate trial on the second count; and other crimes evidence was used against Whittecar on Count II even though it had only been noticed by the State as to Count I. Finally, he asserts that there were no interests which were furthered by joinder since none of the transactions involved had any witnesses, exhibits or evidence in common and none were related in motive.

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¶21 In State v. Martin, we concluded that Martin had not established that prejudice had occurred and that a "bald assertion" that the multiple charges and overlapping evidence invited the jury to convict him is insufficient to meet his burden of demonstrating prejudice. Martin , 279 Mont. at 192, 926 P.2d at 1385. In similar fashion, Whittecar's conclusory assertions that the two-count information caused the jury to consider him a "bad man," accumulate evidence against him on the two counts, and apply other crimes evidence from one count to the other are insufficient. ¶22 In addressing the question of severance, the District Court noted that Counts I and II were both premised upon Whittecar's obtaining services and goods by issuing checks on closed accounts. The court concluded that the allegations of the two counts showed an underlying scheme to defraud and were thus related and should be tried together. Whittecar has failed to show that the District Court abused its discretion in denying his motion to sever. ¶23 3. Did the District Court properly deny Whittecar's motion to exclude other crimes evidence? ¶24 In April of 1996, the State gave notice of intent to introduce evidence of other crimes pursuant to Rule 404(b), M.R.Evid. In particular, the State proposed to prove that in 1993, Whittecar, in connection with a car trade, tendered a post-dated check for $3,000 written on a closed account. With the help of law enforcement authorities, the matter was resolved when Whittecar returned the car and the bad check charge which had been filed against him was dismissed. In July 1996, the District Court, over Whittecar's objection, granted the State's motion to use this "other crimes" evidence. ¶25 In October 1996, the State filed an Amended Information adding Count II, a second count of felony theft, common scheme, again involving a post-dated check on a closed account. Whittecar concedes that the District Court was correct in concluding that the first three factors of the Matt four-part test were satisfied; that is, the evidence was similar to the transaction charged, it was not too remote in time, and it was relevant to prove absence of mistake or accident. State v. Matt (1991), 249 Mont. 136, 814 P.2d 52. However, Whittecar argues that once the court granted the State permission to amend the Information and add a second count of theft, the situation changed; the second count was, in effect, "other crimes" evidence, added to negate any attempt to show mistake or accident. Whittecar contends, "Once this count was added, any asserted need to prove the 1993 transaction evaporated, and at this point element four [is the probative value

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We concur: /S/ KARLA M. GRAY /S/ JAMES C. NELSON /S/ JIM REGNIER /S/ TERRY N. TRIEWEILER

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