NO. 95-210 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1996

STATE OFMONTANA,

Plaintiff and Respondent,

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone, TheHonorable Maurice R. Colberg, Judge presiding.

COUNSELOFRECORD:

For Appellant: William F.Hooks, Appellate Defender Office, Helena, Montana For Respondent: Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana; Dennis Paxinos, Yellowstone Attorney, Daniel Schwarz, County Deputy Yellowstone County Attorney, Billings, Montana

Filed: Submitted onBriefs: July 11, 1996 Decided: October 18, 1996'Justice William E. Hunt, Sr. delivered the Opinion of the Court.

Appellant Frank Fuhrmann (Fuhrmann) wascharged byinformation filed in the Thirteenth Judicial District Court, Yellowstone county, with onecount of deliberate homicide. After ajury trial, Fuhrmann wasfound guilty of the crime charged and sentenced to a term of years at the Montana State Prison. Fuhrmann appeals. Weaffirm. Fuhrmann raises two issues onappeal: 1. Did the District Court err in admitting hearsay testimony of statements madebythe victim? 2. Did the District Court err in denying Fuhrmann's motion for achange of venue? FACTS This case arose out of aseries of events that occurred in Billings, Montana onthe evening of July 7, 1993andinto the early morning hours of July 8. At about 7:30 p.m. onJuly 7,the victim, Charlie Turner (Turner) wasgiven aride byafriend to the tattoo parlor operated by Fuhrmann. Fuhrmann and Turner had begun a relationship three months earlier when Fuhrmann gave Turner a tattoo in exchange for Turner's promise to doodd jobs around the tattoo parlor and help with Fuhrmann's window washing business. When Turner arrived at the tattoo parlor that evening, he and Fuhrmann discussed the rumor that marijuana plants were growing on the Rimrocks area north of Billings. They decided to drive upto investigate. Turner wasa15year old boy, Fuhrmann a32year old adult. 2Onthe wayto the Rimrocks, Fuhrmann stopped at his apartment

to gather aflashlight, aplastic garbage bag, ablanket, and a Kershaw knife. AKershaw knife is unique in that different style blades can be inserted into the handle. Fuhrmann chose afillet blade, inserted it into the handle, and placed the knife in an inside pocket of the black leather jacket hewaswearing. Fuhrmann stated that he brought the knife to cut the marijuana plants. Fuhrmann did not inform Turner that hewascarrying ~theknife. Fuhrmann drove themupto the Rimrocks andparked his car near Swords Park. Thetwo then walked to anarea of cliffs overlooking Alkali Creek. There, according to Fuhrmann, they sat onaboulder, smoked cigarettes, and decided that they would search for the marijuana plants the next day during daylight hours. They then began to walk back to Fuhrmann's car, with Turner in the lead. Fuhrmann wascarrying the knife in onehand, the other items in his other hand. Fuhrmann contends that they had not gone more than a few steps when Fuhrmann fell forward, his momentum causing the knife in his outstretched hand to plunge into Turner's upper right buttock. According to Fuhrmann, Turner turned around andexclaimed "you have aknife?" then ran off in the direction of Airport Road, the main thoroughfare ontop of the Rimrocks. Turner began trying to flag downpassing vehicles. Fuhrmann caught upwith Turner at the edgeofAirport Road, where Fuhrmann contends heoffered Turner the knife, handle first, as agesture of peace. Fuhrmann maintains that Turner grabbed the knife, slashed Fuhrmann across the face,

3and would have inflicted more damage had Fuhrmann not disarmed

Turner during anensuing struggle. The drivers of vehicles that passed bythe scene onAirport Roadthat night provide information to complete the story of these events. Dorothy Semmann, whohadjust left Deaconess Hospital at 11:30 p.m. following her work shift asanurse, wasthe first witness on the scene. Ms. Semmannwasdriving near Alkali Creek onAirport Roadwhenshesawayoung manappear from the side of the road into the light cast by her headlights, waving his hands. Her urge to stop to help ended abruptly when she sawanother manapproaching from the side of the road and she thought she was the intended victim of acar-jacking. Ms. Semmanndrove home and called 911. Shehadnot seen blood oneither of the men. Chelsea Kenyon andher friend AmyVicars were also driving on Airport Road in the area of Alkali Creek that night when two men

ran on to the road, the younger of whomapproached Ms. Kenyon's driver's side window. Ms. Kenyon became frightened and drove on, but curiosity overcame her after acouple of minutes soshe drove back to determine what was happening. Ms. Kenyon had not seen blood oneither of the men. WhenMs. Kenyon returned, shesawtheyounger manlying in the road. Twoother motorists, Clark Allard andTerrill Bracken, had stopped and were attending to the younger man, Turner. At this point, Ms. Kenyon observed that Turner was lying in apool of blood, washaving difficulty breathing, andwascontinuing to bleed profusely.Mr. Allard had arrived at the scene moments before MS.

Kenyon's return. Mr. Allard slowed his car after hesawtwomenin the road, one lying onthe ground, the other standing above him with onehand holding the prone man's left leg andthe other hand, Allard testified, making abackhand slashing motion over the prone man's body. AsMr. Allard pulled along side the men, heheard the prone man, Turner, say "Help me. Help me. Hestabbed me." Mr. Allard stopped his car, got out, andbegan to approach the men, but hesitated after Fuhrmann began walking toward him with aknife in his hand. Mr. Allard then flagged downapassing car driven byMr. Bracken. Mr. Bracken disarmed Fuhrmann while Mr. Allard applied pressure toTurner's numerous stab wounds. At this time, Bracken, Allard, Ms. Kenyon, and Tisha Pfieffer, another motorist whohad stopped at the scene, were all witness to statements madebyTurner concerning the cause of his injuries: Turner stated that Fuhrmann stabbed him "onpurpose," andthat the stabbing was "no accident." The admissibility of these statements is the subject of the first issue Fuhrmann raises onappeal. Turner wasrushed to Deaconess Hospital, andwasunconscious andin shock upon arrival. After morethan three hours of surgery, doctors were still unable to stop Turner's vigorous bleeding. Turner's massive blood loss caused him to suffer cardiac arrest at about 9:00 a.m., July 8. Turner waspronounced dead at 9:37 a.m. Attending doctors haddiscovered adozen separate stab wounds, the most serious of which were adeepwound in Turner's right buttock

5and alonger slash across the inner part of his upper right arm

which severed his brachial artery. The State offered expert testimony at trial that the wound to Turner's buttock wasnearly 5 inches deep, andthat the configuration ofthe wound suggested that

aknife had been inserted andwithdrawn in two separate motions. Manyof the other wounds were characteristic ofwounds received by

aperson attempting to defend himself from aknife attack. Fuhrmann wascharged byinformation filed onJuly 13, 1993, in the Thirteenth Judicial District Court, Yellowstone County, with deliberate homicide. Fuhrmann pleaded not guilty to the crime charged, andsubsequently raised the defense of justifiable use of force. Prior to trial, Fuhrmann filed anumber of motions in limine. Most importantly for our review washis motion to exclude testimony concerning remarks made by the victim, Turner, to the effect that Fuhrmann's actions were onpurpose ornot anaccident. TheDistrict Court admitted the testimony, and after ajury trial that began March 7, 1994, Fuhrmann was found guilty of the crime charged. About aweek after the conclusion of the trial, Chief Deputy County Attorney Daniel Schwartz received a call from the jury foreman, who wanted to discuss the case. During their conversation, Schwartz discovered that one of the jurors had conducted anexperiment during the course of the trial. Schwartz immediately notified the court and defense counsel, and after a hearing, the court granted Fuhrmann's motion for anewtrial.Before his second trial, Fuhrmann movedthe court for achange

of venue due to the publicity his case was receiving in the community of Billings. Fuhrmann informed the court that he had received three separate death threats, all prior to his first trial. Thecourt denied Fuhrmann's motion. Fuhrmann also renewed the motions in limine he had filed prior to his first trial. Again, the court denied Fuhrmann's motion to exclude testimony concerning statements madebyTurner regarding Fuhrmann's actions. At the commencement of Fuhrmann's retrial on October 18, 1994) Fuhrmann again moved for achange ofvenue. The court denied his motion, and after a jury trial Fuhrmann was found guilty of deliberate homicide andwas sentenced to aterm of years at the Montana State Prison. Fuhrmann appealed. ISSUE ONE Did the District Court‘ err in admitting hearsay testimony of statements madebythe victim? This Court will not overturn a trial court's evidentiary ruling absent anabuse of discretion. State v. Stringer (1995), 271Mont. 367, 374, 897P.2d 1063, 1067; State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263. Therefore, we must determine whether the District Court abused its discretion in admitting hearsay testimony of statements made by the victim, Turner.Fuhrmann argues in his briefs submitted to usthat testimony regarding Turner's statements should have been excluded by the District Court because Turner's statements related to Fuhrmann's

7state of mind andthus are inadmissible hearsay. In his motion in

limine before the District Court, Fuhrmann had two bases for his argument whythe hearsay testimony concerning Turner's statements should be excluded. First, Fuhrmann argued that Turner's statements went to Fuhrmann's state of mind, not his own, andthus

were inadmissible hearsay. Second, Fuhrmann argued that, under Rules 701 and 704, M.R.Evid., the testimony was inadmissible because it was layperson opinion testimony which addressed the ultimate issue in dispute,. i.e. Fuhrmann's mens rea. The State responded to the motion oneach of these two bases, and the court denied the motion. Onappeal, the State initially presents aprocedural argument

as to why this Court should not review this issue raised by Fuhrmann. The State contends that Fuhrmann has adifferent basis for his argument onappeal than hedid atthe District Court level. The State is correct in asserting that this Court adheres to the rule that "a party maynot change the theory onappeal from that advanced onthe District Court." State v. Henderson (1994), 265 Mont. 454, 458, 077P.2d 1013, 1016. However, Fuhrmann's argument before this Court, that Turner's statements are inadmissible hearsay because they relate to Fuhrmann's state of mind, is oneof the two arguments that Fuhrmann raised atthe District Court level. While Fuhrmann's argument below did not cite Rule 803(3), M.R.Evid., specifically, it clearly referred to that Rule's "state of mind" exception to the hearsay rule. Fuhrmann points usto two federal cases interpreting Rule 103(a) (l), Fed.R.Evid., identicalin substance to Rule 103(a) (l), M.R.Evid., which hold that specific

objection is required "only where the specific ground would not be clear from the context." Werner v. Upjohn Co., Inc. (4th Cir. 1980), 628 F.2d 848, 853; see also United States v. Musacchia (2d Cir. 1990), 900F.2d 493, 497. Moreover, this Court has approved the use of amotion in limine to preserve anobjection for appeal, State v. Weeks (1995), 270Mont. 63, 85, 891P.Zd 477, 490 (citing State v. Brown (1984), 209 Mont. 502, 506-07, 680 P.2d 582, 584- 85), provided the objecting party makes the basis for his objection clear to the district court. Weeks -I 891P.2d at 490. In his Fifth Motion in Limine, dated March 4, 1994, Fuhrmann states:Thestatements attributed toTurner relate tothe alleged state of mind and intent of Fuhrmann. While awitness can testify about his/her state of mind, that witness cannot testify about the state of mind of another. The court has to ask itself the question, 'If awitness were asked, "Did hedoit onpurpose?", would the court allow the witness to answer the question?'

TheDistrict Court did not formally rule upon this motion prior to Fuhrmann's first trial. However, Fuhrmann renewed all of his motions in limine prior to his retrial. Atthat time, the District Court denied Fuhrmann's Fifth Motion in Limine, but noted Fuhrmann's objection to the admission of the statements and relieved him of any obligation to object again at trial. We conclude that the basis for Fuhrmann's argument in his motion in limine was clear. His argument before us is grounded in the same theory aswashis argument below. Fuhrmann properly preserved his objection and it is appropriate that wereview it. 9Fuhrmann contends that testimony bythose whowitnessed Turner

state that Fuhrmann stabbed him "on purpose" andthat the stabbing

was "not anaccident" is inadmissible hearsay andshould have been excluded bythe District Court. Hearsay is

astatement, other than onemadebythe declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Rule 801(c), M.R.Evid. Generally, hearsay is inadmissible, but the rules of evidence provide certain exceptions. Rule 803(3), M.R.Evid. provides anexception for [al statement of the declarant's then-existing state of mind, emotion, sensation, orphysical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including astatement of memory or belief to prove the fact remembered or believed.

Fuhrmann argues that because Turner's statements regarding Fuhrmann's intent address Fuhrmann's state of mind, the statements do not fall within the exception provided by Rule 803(3) and therefore anytestimony concerning these statements is inadmissible hearsay. Fuhrmann also argues that Turner's statements that Fuhrmann purposely stabbed him are statements of belief to prove the fact believed, precisely what is disallowed bythe last clause in the text of Rule 803(3). The State argues that Turner's statements doaddress his own state of mind, andthus fit within the hearsay exception provided by Rule 803(3). The State contends that by claiming justifiable

use of force, Fuhrmann opened the door for the State to rebut his defense with Turner's statements, which indicated Turner's fear of

10Fuhrmann and that Turner did not believe that he initiated or

provoked the stabbing. The State cites State v. Losson (1993), 262 Mont. 342, 348, 865P.2d 255, 258, and State v. Magruder (1988), 234Mont. 492, 496, 765 P.2d 716, 719, to support its contention. The State also raises alternative arguments, that Turner's

statements fit within two other exceptions tothe hearsay rule. We decline to discuss these arguments, asthe record reveals that the State has raised them for the first time onappeal. Henderson, 877 P.2d at 1016. Someof the analysis and logic in the arguments proposed by both Fuhrmann andthe State is creative, but not entirely correct. Both the State and Fuhrmann cite Magruder and Losson in their respective briefs, and both failed to discuss important points raised in those cases. In Magruder, this Court affirmed the district court's admission of testimony of avictim's statements. The victim's daughter testified that the victim "seemed worried after the [telephone] conversation [with the defendant1 and told her that he'd better be 'packing apiece' because Mr. Magruder would be packing apiece andwould be [at their home] later." Magruder, 765 P.2d at 717. The majority concluded that the victim's statements avoided the hearsay bar because they fit within the "state of mind" exception provided by Rule 803(3), M.R.Evid. The majority determined that the statements were evidence of the victim's state of mind, that hewasafraid of the defendant. Maqruder, 765P.2d at 718-19. Defendant hadraised the defense of justifiable use offorce, and the majority concluded that evidence that the victim

feared the defendant was relevant. Maqruder, 765 P.2d at 719 (citing United States v. Brown (D.C. Cir. 1973), 490 F.2d 758, 767). The majority pointed out that the statements were not offered for their truth, but only to show the victim's state of mind. In support, the majority noted that the district court had given alimiting instruction to the jury, that the testimony was not offered to prove the truth of the matter asserted, but rather to show the victim's then existing state of mind. Youare to consider the statements only in regard to the victim's state of mind andfor noother purpose. Masruder, 765 P.2d at 718. The dissent in Macruder, which relied heavily onBrown, 490 F.2d 758, stated that "the majority's handling of the hearsay problem skims too lightly over the very problematic nature of the testimony." Masruder, 765 P.2d at 720 (Sheehy, J., dissenting). The dissenting justices were concerned that the testimony, if it indeed was admissible under the "state of mind" exception to the hearsay rule, was in any event soprejudicial to the defendant as tobeincurable bythe court's limiting instruction. Macruder, 765 P.2d at 720-21 (Sheehy, J.,' dissenting). Although the following point wasnot raised in the dissent, after our review of Maqruder

wenote that while the majority onthe onehand concluded that the victim's statements fit within the "state of mind" hearsay exception, Macruder, 765 P.2d at 718, it on the other hand concluded that the statements were not offered for their truth, but only to show the victim's state of mind. Maoruder, 765 P.2d at

12719. In Losson, a later case, this court cleared up this

discrepancy. In Losson, where the defendant raised the defense of justifiable use of force, we affirmed the district court's admission of testimony of the victim's statements. The victim's statements, like thevictim's statements in Maqruder, indicated his fear of the defendant. Weconcluded that the statements were relevant, Losson, 865 P.2d at 258, and then analyzed their admissibility under the hearsay rule. Citing Brown, 490 F.2d at 762-63, westated: That court delineated the distinction between hearsay and non-hearsay asit related to state ofmind evidence. The distinction turns onwhether the statement is evidence which directly proves the declarant's state of mind or whether the statement is evidence which circumstantially proves the declarant's state of mind. Losson, 865P.2d at 259 (emphasis added). The testimony at issue in Losson involved three statements made by the victim. The victim had stated that the defendant "threatened to kill him in the past," andthat the defendant "would kill him if he ever moved out." We concluded that "these statements circumstantially indicated [the victim's1 state of mind toward [the defendant]; that hefeared her." Losson, 865P.2d at 259. Weexplained further: The jury was instructed not to consider whether [the defendant], in fact, threatened to kill or would kill [the victim]. Instead, the jury was instructed to consider [the victim's] state of mind; whether hewas afraid of [the defendant]. Wehold that the first two statements were not hearsay.

13Losson, 865P.2d at 259.

Weconcluded that the third statement madeby the victim in Losson was direct evidence of the victim's state of mind. The third statement was that the victim "was afraid of his wife and thought shewasgoing to kill him." Since the statement contained direct evidence of the victim's state of mind, wedetermined that the State necessarily wasoffering the statement for its truth, and that the statement therefore washearsay. Losson, 865P.2d at 259. However, weheld that the statement fit into the exception provided by Rule 803(3) andwas admissible. Losson, 865P.2d at 259. Based upon our analyses in Magruder andLosson, wereach the following conclusions in the instant case. First, Turner's statements that Fuhrmann stabbed him "on purpose" and that the stabbing was "not an accident," if they can be construed as providing evidence that Turner feared Fuhrmann, CEKl only be construed as providing circumstantial evidence of Turner's fear. Under that construction, the statements would beconsidered nonhearsay and would be admissible. Losson, 865 P.2d at 259. However, such statements must beoffered only for the purpose of showing the declarant's state of mind, andmaynot beoffered for the truth of the matters asserted. Wherewehave upheld adistrict court's admission of such statements, wehave considered the fact that the district court issued alimiting instruction to the jury explaining the purpose for which it could consider the statements. Magruder, 765P.2d at 718; Losson, 865P.2d at 259.

14After reviewing the record in the instant case, we find no

indication that the District Court, in denying Fuhrmann's motion to exclude testimony regarding Turner's statements, limited the purpose for which the testimony could beoffered. For that matter, there is nothing inthe record which would explain whythe District Court admitted the testimony at all. More importantly, the transcripts reveal that the District Court did not at any time issue limiting instructions to the jury explaining why the testimony wasbeing offered. Toprevent any potential prejudicial effect onadefendant, and to uphold the integrity of both the hearsay rule and Rule 803(3)'s "state ofmind" exception, atrial court must instruct the jury asto the limited purpose for which it mayconsider this type of testimony. However, both the trial court and this Court must keep avigilant eyetoward the possible prejudicial effect of such testimony even if alimiting instruction is given. Wehold that the District Court abused its discretion in admitting testimony of Turner's statements without also giving a limiting instruction astowhythe testimony wasbeing offered and howthe jury wasto consider it. However, weconsider this error to beharmless, dueto the independent evidence in the record upon which ajury could base aguilty verdict: Turner hadbeen stabbed at least twelve times; one of Turner's most serious wounds, the wound to his buttock, wasreceived before heandFuhrmann reached the Airport Road; and, the.description of the wound to Turner's buttock given byhis attending physicians andbyaState crime lab

15expert wasinconsistent with Fuhrmann's claim that heaccidentally

stabbed Turner whenhetripped andfell forward with aknife in his outstretched hand. Ourconclusion that the District Court's error washarmless is consistent with this Court's previous holdings regarding the

harmless error doctrine. Where federal constitutional error, such

as improper jury instruction, is involved, wehave applied the harmless error rule established bythe United States Supreme Court in Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct. 824, 8.28, 17L.Ed.Zd 705, 710-11: for error to beharmless, it must be shown beyond areasonable doubt that the error did not contribute to the verdict obtained. State v. Rothacre (19951, 272Mont. 303, 312-13, 901P.2d 82, 88; State v. McKenzie (1980), 186Mont. 481, 532, 608P.2d 428, 458. In considering the prejudicial effect of

adistrict court's erroneous evidentiary ruling, amatter of state law, this Court has stated that "[tlhe essential question is whether there is areasonable possibility that the inadmissible evidence might have contributed to the conviction." Brodniak v. State (1989), 239 Mont. llq, 115, 779 P.2d 71, 74; State v. Gray (196X), 207Mont. 261, 268, 673P.2d 1262, 1266. This Court has noted that the federal harmless error rule andMontana's harmless

error rule are essentially the same, and that in either case overwhelming evidence of adefendant's guilt can render harmless a district court's error. McKenzie, 608P.2d at 458; Brodniak, 779 P.2d at 74. Weconclude that there was overwhelming evidence of

16Fuhrmann's guilt, and that the District Court's error did not

contribute to his conviction. Wehold that the error washarmless. ISSUE TWO Did the District Court err in denying Fuhrmann's motion for a change of venue? This Court will not disturb adistrict court's denial of a motion for change ofvenue absent anabuse of discretion. State v. Moore (1994), 268 Mont. 20, 51, 885 P.2d 457, 477 (overruled on other grounds, Gollehon, 906 P.2d 697). Therefore, we must determine whether the District Court abused its discretion in denying Fuhrmann's motion for achange of venue. Section 46-13-203(l), MCA,states that adefendant is entitled to

move for achange of place of trial onthe ground that there exists inthe county inwhich the charge is pending such prejudice that afair trial cannot be had in the county. Further, amotion for change ofvenue must begranted when it appears there are reasonable grounds to believe that the prejudice alleged actually exists and that by reason of the prejudice there is a reasonable apprehension that the accused cannot receive afair and impartial trial.

State v. Link (1981), 194 Mont. 556, 559-60, 640 P.2d 366, 368 (citing People v. Berry (Ill. 1967), 226N.E.2d 591, 592-93). Fuhrmann argues that there are three grounds upon which a court could reasonably believe that prejudice actually existed in the Billings community atthe time of his retrial. First, Fuhrmann points to three separate death threats that hereceived prior to 17his first trial as indicative of the inflamed passions in the

community. Second, heclaims that the large number of potential jurors excused for cause andthe large number of potential jurors whohad knowledge of the case prior to the retrial reflected the widespread prejudice in the community. Third, Fuhrmann contends that certain newspaper reports in the Billings Gazette constituted prejudicial pretrial publicity and contributed to the communitywide prejudice. Wedispose ofFuhrmann's first ground bynoting that the death threats were received prior to his first trial, where Fuhrmann did not move for achange of venue. Fuhrmann does not allege that he received any additional death threats prior to his retrial. Aswe

are reviewing the District Court's denial of Fuhrmann's motion for change of venue in the context of his retrial, wesee noneed to address this ground. Asto Fuhrmann's second ground, wedonot agree that the fact that alarge number of potential jurors hadprior knowledge of his

case is prejudicial andwarrants achange of venue. Wehave held that jurors1 knowledge ofthe case andpublicity, without more, is insufficient to warrant a change of venue since it cannot be equated with prejudice. State v. Smith (1986), 220Mont. 364, 378, 715 P.2d 1301, 1309; see State v. Ritchson (1982), 199Mont. 51, 55, 647 P.Zd 830, 832. Moreover, it appears from the record that the court wasparticularly careful to question individually those jurors who indicated that they had some prior knowledge of the case, andinstructed the potential jurors andthe jurors ultimately

18chosen of their duty to render averdict based solely on the

evidence presented at trial. Wesee no reason to question the District Court's exercise of discretion in relation tothis ground presented byFuhrmann. Finally, wecannot agree with Fuhrmann that certain newspaper articles in the Billings Gazette constituted prejudicial pretrial publicity and contributed to a community-wide prejudice. A defendant seeking change of venue on the ground of prejudicial pretrial publicity must prove two elements. First, the defendant must showthat the publication at issue wasinflammatory. Second, the defendant must showthat the publication actually inflamed the prejudice of the community to the extent that a reasonable possibility exists that hemaynot receive afair trial. Ritchson, 647 P.2d at 832. The first element focuses onthe nature of the publicity while the second focuses onthe effect. Ritchson, 647 P.2d at 832. In State v. Nichols (1987), 225 Mont. 438, 734P.2d 170, we described inflammatory publicity as editorializing onthe part ofthe media oranycalculated attempt to prejudice public opinion against [defendant] or to destroy the fairness of the pool from which [defendant's] prospective jurors would bedrawn. Nichols, 734P.2d at 173-74 (quoting State v. Armstrong (1980), 189 Mont. 407, 423, 616 P.2d 341, 350). The District Court read the copies of eleven newsreports from the Billings Gazette attached to Fuhrmann's motion for changk of venue, dated August 19, 1994, and did not discover any instances of 1'editorializing'1 or "calculated

19attempts to prejudice public opinion." The District Court found

that the reports merely contained factual accounts of the background of the case aswell asthe trial proceedings. Fuhrmann notes that somereports contain references to his criminal history andto the prosecution's initial theory that Fuhrmann hadsexually assaulted Turner. However, weconclude, asdid the District Court, that these bare statements were apart of "standard news accounts of court events and filed 'information," news accounts that were "devoid of editorializing.1' Tosupport his contention that the news reports inflamed the prejudice of the community, Fuhrmann points tothe death threats he received prior to his first trial,,the number of potential jurors in the jury pool with prior knowledge of the case, and asurvey conducted byaMontana State University professor which established the Billings community's awareness of Fuhrmann's case. Wehave already explained our unwillingness to consider the death threats received prior to the first trial as indicators of alleged prejudice surrounding the retrial somesix months later. Wehave also disposed of Fuhrmann's argument regarding potential jurors with prior knowledge of the case; the record shows that the District Court carefully and thoroughly questioned jurors who admitted to having prior knowledge ofthe case, and, satisfied with the panel ultimately chosen, instructed that group of its duty to render a verdict based only on evidence produced at trial. Finally, after reviewing the Montana State University professor's survey, we would have to agree with the District

20Court's characterization of it: "inconclusive." 81%of the nearly

450persons questioned in the survey stated that they hadheard of Fuhrmann's case. Ofthat percentage, 49%said they hadanopinion of Fuhrmann's guilt or innocence, andthe remainder either did not have an opinion or didn't know. Nearly all who had an opinion believed Fuhrmann to be guilty, but only about half claimed it would be very difficult to change their opinion. From the information elicited inthe survey wecannot conclude that pretrial publicity inflamed prejudice in the Billings community, especially in light of our determination that the news reports were not facially inflammatory. SeeMoore -I 885 P.2d at 478. Weare aware that surveys are appropriate meansof determining whether prejudice exists in a community. State v. Paisley (1983), 204Mont. 191, 194, 663P.2d 322, 324. Where wehave acknowledged

asurvey's results as supporting acourt's grant of amotion to change venue, wehave noted the connection between the results of the survey and extensive editorializing by the local newspaper against the defendant. Paisley, 663P.2d at 324. In Paisley, a criminologist's survey submitted prior to defendant's justice court trial concluded that the likelihood of defendant receiving a fair trial depended upon the extent of further trial publicity. The justice court trial received "editorialized" publicity, and defendant's motion for change of

venue of his district court trial wasgranted bythe district court and affirmed by this Court. Here(weconclude that there wasno editorializing bythe Billings Gazette against Fuhrmann. There can

21be no connection indicating prejudicial publicity--the type of

connection wecontemplated'in Paislev--between the Montana State University survey and the 

### Gazette news reports. SeeMoore, 885 P.2d at 478. A passage from Moore, where we disagreed with defendant's claim that prejudicial pretrial publicity mandated a change of venue, summarizes our conclusions here: Living, as wedo, in a society which is continuously inundated with news coverage bythe print andbroadcast media, it is doubtful that most members ofthe community will not share some knowledge of, or about, alocally high-profile crime, and the various persons allegedly involved in ,its commission or its investigation. Given the inevitable conflict with the media's constitutional right to free speech, the public's constitutional right to know, and the accused right to a fair trial, it remains the task ofthe district court, in such cases, to scrupulously examine the evidence supporting amotion for change of venue to insure that the jurors who will ultimately decide the guilt or innocence of the accused are fair minded and uninfluenced bywhat they may have seen, heard, or read. That conclusion must necessarily be based upon not only the jurors' responses in voir dire, but also onacareful analysis of the quantity and content of the pretrial publicity. Each case is unique and must be decided on its ownmerits. 

### Bousquet, 808 P.2d at 508. While this was adifficult case, weare nonetheless satisfied that the trial judge conscientiously considered this issue, andthat despite the pervasiveness ofthe media coverage, it wasgenerally balanced and fair. Weconclude that the jurors who decided [defendant's] fate were not disposed to guilt or innocence bywhat they mayhave seen, heard, or read in the media.

Moore, 885 P.2d at 479. Thestandard that must bemet in order for

a change of venue motion to be granted is the existence of "reasonable grounds to believe that the prejudice alleged actually exists and that by reason of the prejudice there is areasonable apprehension that the accused cannot receive afair and impartial 22

### trial.ll Link -I 640P.2dat368(citation omitted). After reviewing the record, wehold that the District Court did not abuse its discretion whenit denied Fuhrmann's motion for change ofvenue, impliedly concluding that suchreasonable grounds did not exist. Affirmed.

Justices

23