No. 82-406 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1384 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsLESTER AZURE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable John M. McCarvel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John Keith, Great Falls, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

Submitted on Briefs: December 22, 1983 

Decided: February 23, 1984 

Filed: "k~ , ' ')84 

Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Defendant appeals from his conviction of forgery 

following a jury trial in the District Court of Cascade 

County. 

On February 3, 1981, defendant Lester Azure delivered a 

check to proprietor of Parkdale Grocery for which he received 

cash in the amount of the check $197.00. The check purported 

to be drawn on the account of Elaine LaPier, signed by her 

and payable to Azure. Based on this transaction, Azure was 

charged by information filed on February 27, 1982, with the 

offense of forgery, a felony, in violation of section 

45-6-325(1)(b) MCA. At Azure's arraignment on March 24, 1982 

he pleaded "Not Guilty" to the charge and was later convicted 

by jury on June 4, 1982. 

Pursuant to a District Court order, Azure submitted 

hand.writing samples to the Cascade County Sherif f' s office. 

One week prior to the June 1st jury trial the handwriting 

expert, Deputy Arne Sand, informed the deputy county attorney 

tha-t the handwriting on the check with which Azure was 

charged was the defendant's. Shortly thereafter, the deputy 

county attorney interviewed the victim, Elaine LaPier, who 

provided him copies of two checks which had been forged on 

her account. The second check was dated January 30, 1981 

made payable to Lester Azure for $125.00. It was endorsed by 

Lester Azure and cashed by Ottis Power of the Midway Rar. 

On the evening of the trial, May 31, 1982, the deputy 

county attorney interviewed the handwriting specialist, Sand, 

who informed him that the endorsement on the reverse of the 

February 3rd check, charged against the defendant, was 

written by the defendant but that the handwriting on the face 

of the check was not. Deputy Sand determined that the 
earlier check, dated January 30, 1981, was both written and 

signed by the defendant. At 10:45 p.m. that same night, 

deputy county attorney telephoned the defendant's counsel to 

inform him of the State's intention to introduce the January 

30, 1981 check pursuant to Montana Rules of Evidence 404(b) 

as evidence of a prior criminal act for the purpose of 

establishing knowledge, purpose, identity or absence of 

mistake or accident. The following morning, prior to the 

case being called for trial, notice as judicially mandated in 

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

served on the defendant's counsel. 

When the State offered the earlier dated check to be 

introduced as evidence of other crimes defendant's counsel 

objected on the grounds of inadequate notice. He alleged 

that the surprise introduction of this evidence the night 

before the trial imposed an unfair burden on the defendant to 

properly investigate the proposed evidence and prepare 

effective cross-examination. In response to this objection 

the trial court granted defendant's counsel a two and a half 

day continuance. Defense counsel renewed the same objection 

when the court reconvened. The court overruled the 

objection. 

A single issue is presented upon appeal: 

1. Did the trial court err in allowing the admission 

into evidence of another wrongful act where notice of the 

intention to introduce such evidence was served upon 

defendant the morning of the trial and a two and one half day 

continuance was thereafter granted? 

In State - v. - Just this Court adopted a four-prong test 

essential for the introduction of evidence of prior crimes or 

acts. The defendant alleges that the State's evidence 

violates only the fourth required judicial standard, 
maintaining that the inadequate notice resulted in unfair 

prejudice against the defendant which substantially 

outweighed its probative value. 

During a hearing before the court after the two and a 

half day continuance the defendant's counsel and the court 

discussed the subject evidence. Although the omnibus hearing 

resulted in an order requiring a 10 day notice of intent to 

use other crimes evidence the defendant could not have 

benefited from more time. The court specifically inquired if 

the two and a half day continuance had afforded defense 

counsel the opportunity to meet the proposed additional 

evidence and avoid prejudice to the defendant. Defendant 

took the position that prejudice would result because 

defendant had not received ten days notice. 

However the following dialogue ensued: 

"All right. I think that although this is in. 

violation of the omnibus hearing order that ten 

days notice was supposed to be given to the 

defense, and it was not given, and there was an 

objection made to the admission of the evidence, 

but then the court did grant a two day continuance 

so that the defense would have an opportunity to 

investigate the evidence, and to meet it, and with 

the representation of counsel that he has had an 

opportunity in the two days to make his 

investigation of the evidence, and that there is no 

need for any further time, is that correct, Mr. 

Nagel, as far as any further investigation is 

concerned? 

"MR. NAGEL: Yes, your honor." 

Defense counsel waived his right to ad.ditiona1 time for 

investigation and effectively rendered void his objection of 

unfair prejudice due to surprise. 

The standard of review of this appellate court is: 

" . . . if the fixing of the degree of the offense 

as fixed finds support in the evidence and if the 

punishment is within the maximum limits fixed by 

law, then we cannot substitute our judgment for 

that of the trial judge. We are at liberty to 

interfere only in the event that there has been a 

clear abuse of discretion or a failure to follow 
the lav~. l1 State - v. Brooks (1967), 150 Mont. 399, 

436 P.2d 91, 98. 

The record evidences no abuse of discretion by the 

District Court. Affirmed. 

We concur: 

Chief Justice