NO. 95-210 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1996 

STATE OF MONTANA, 

Plaintiff and Respondent, 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Maurice R. Colberg, Judge presiding. 

COUNSEL OF RECORD: 

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 on Briefs: July 11, 1996 

Decided: October 18, 1996' 
Justice William E. Hunt, Sr. delivered the Opinion of the Court. 

Appellant Frank Fuhrmann (Fuhrmann) was charged by information 

filed in the Thirteenth Judicial District Court, Yellowstone 

county, with one count of deliberate homicide. After a jury trial, 

Fuhrmann was found guilty of the crime charged and sentenced to a 

term of years at the Montana State Prison. Fuhrmann appeals. 

We affirm. 

Fuhrmann raises two issues on appeal: 

1. Did the District Court err in admitting hearsay testimony 

of statements made by the victim? 

2. Did the District Court err in denying Fuhrmann's motion 

for a change of venue? 

FACTS 

This case arose out of a series of events that occurred in 

Billings, Montana on the evening of July 7, 1993 and into the early 

morning hours of July 8. At about 7:30 p.m. on July 7, the victim, 

Charlie Turner (Turner) was given a ride by a friend 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 do odd 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 up to 

investigate. Turner was a 15 year old boy, Fuhrmann a 32 year old 

adult. 

2 
On the way to the Rimrocks, Fuhrmann stopped at his apartment 

to gather a flashlight, a plastic garbage bag, a blanket, and a 

Kershaw knife. A Kershaw knife is unique in that different style 

blades can be inserted into the handle. Fuhrmann chose a fillet 

blade, inserted it into the handle, and placed the knife in an 

inside pocket of the black leather jacket he was wearing. Fuhrmann 

stated that he brought the knife to cut the marijuana plants. 

Fuhrmann did not inform Turner that he was carrying ~the knife. 

Fuhrmann drove them up to the Rimrocks and parked his car near 

Swords Park. The two then walked to an area of cliffs overlooking 

Alkali Creek. There, according to Fuhrmann, they sat on a boulder, 

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 was carrying the knife in one hand, 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 and exclaimed "you 

have a knife?" then ran off in the direction of Airport Road, the 

main thoroughfare on top of the Rimrocks. Turner began trying to 

flag down passing vehicles. Fuhrmann caught up with Turner at the 

edge of Airport Road, where Fuhrmann contends he offered Turner the 

knife, handle first, as a gesture of peace. Fuhrmann maintains 

that Turner grabbed the knife, slashed Fuhrmann across the face, 

3 
and would have inflicted more damage had Fuhrmann not disarmed 

Turner during an ensuing struggle. The drivers of vehicles that 

passed by the scene on Airport Road that night provide information 

to complete the story of these events. 

Dorothy Semmann, who had just left Deaconess Hospital at 11:30 

p.m. following her work shift as a nurse, was the first witness on 

the scene. Ms. Semmann was driving near Alkali Creek on Airport 

Road when she saw a young man appear 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 saw another man approaching 

from the side of the road and she thought she was the intended 

victim of a car-jacking. Ms. Semmann drove home and called 911. 

She had not seen blood on either of the men. 

Chelsea Kenyon and her friend Amy Vicars 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 whom approached Ms. Kenyon's 

driver's side window. Ms. Kenyon became frightened and drove on, 

but curiosity overcame her after a couple of minutes so she drove 

back to determine what was happening. Ms. Kenyon had not seen 

blood on either of the men. 

When Ms. Kenyon returned, she saw the younger man lying in the 

road. Two other motorists, Clark Allard and Terrill Bracken, had 

stopped and were attending to the younger man, Turner. At this 

point, Ms. Kenyon observed that Turner was lying in a pool of 

blood, was having difficulty breathing, and was continuing to bleed 

profusely. 
Mr. Allard had arrived at the scene moments before MS. 

Kenyon's return. Mr. Allard slowed his car after he saw two men in 

the road, one lying on the ground, the other standing above him 

with one hand holding the prone man's left leg and the other hand, 

Allard testified, making a backhand slashing motion over the prone 

man's body. As Mr. Allard pulled along side the men, he heard the 

prone man, Turner, say "Help me. Help me. He stabbed me." Mr. 

Allard stopped his car, got out, and began to approach the men, but 

hesitated after Fuhrmann began walking toward him with a knife in 

his hand. Mr. Allard then flagged down a passing car driven by Mr. 

Bracken. 

Mr. Bracken disarmed Fuhrmann while Mr. Allard applied 

pressure to Turner's numerous stab wounds. At this time, Bracken, 

Allard, Ms. Kenyon, and Tisha Pfieffer, another motorist who had 

stopped at the scene, were all witness to statements made by Turner 

concerning the cause of his injuries: Turner stated that Fuhrmann 

stabbed him "on purpose," and that the stabbing was "no accident." 

The admissibility of these statements is the subject of the first 

issue Fuhrmann raises on appeal. 

Turner was rushed to Deaconess Hospital, and was unconscious 

and in shock upon arrival. After more than 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 was pronounced dead at 9:37 a.m. 

Attending doctors had discovered a dozen separate stab wounds, the 

most serious of which were a deep wound in Turner's right buttock 

5 
and a longer 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 was nearly 5 

inches deep, and that the configuration of the wound suggested that 

a knife had been inserted and withdrawn in two separate motions. 

Many of the other wounds were characteristic of wounds received by 

a person attempting to defend himself from a knife attack. 

Fuhrmann was charged by information filed on July 13, 1993, in 

the Thirteenth Judicial District Court, Yellowstone County, with 

deliberate homicide. Fuhrmann pleaded not guilty to the crime 

charged, and subsequently raised the defense of justifiable use of 

force. Prior to trial, Fuhrmann filed a number of motions in 

limine. Most importantly for our review was his motion to exclude 

testimony concerning remarks made by the victim, Turner, to the 

effect that Fuhrmann's actions were on purpose or not an accident. 

The District Court admitted the testimony, and after a jury trial 

that began March 7, 1994, Fuhrmann was found guilty of the crime 

charged. 

About a week 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 an experiment 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 a new trial. 
Before his second trial, Fuhrmann moved the court for a change 

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. The court 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 made by Turner regarding Fuhrmann's actions. 

At the commencement of Fuhrmann's retrial on October 18, 1994) 

Fuhrmann again moved for a change of venue. The court denied his 

motion, and after a jury trial Fuhrmann was found guilty of 

deliberate homicide and was sentenced to a term of years at the 

Montana State Prison. Fuhrmann appealed. 

ISSUE ONE 

Did the District Court‘ err in admitting hearsay testimony of 

statements made by the victim? 

This Court will not overturn a trial court's evidentiary 

ruling absent an abuse of discretion. State v. Stringer (1995), 

271 Mont. 367, 374, 897 P.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 us that testimony 

regarding Turner's statements should have been excluded by the 

District Court because Turner's statements related to Fuhrmann's 

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

limine before the District Court, Fuhrmann had two bases for his 

argument why the 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, and thus 

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 on each of these two bases, and the court 

denied the motion. 

On appeal, the State initially presents a procedural argument 

as to why this Court should not review this issue raised by 

Fuhrmann. The State contends that Fuhrmann has a different basis 

for his argument on appeal than he did at the District Court level. 

The State is correct in asserting that this Court adheres to the 

rule that "a party may not change the theory on appeal from that 

advanced on the District Court." State v. Henderson (1994), 265 

Mont. 454, 458, 077 P.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 one of 

the two arguments that Fuhrmann raised at the 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 us to two 

federal cases interpreting Rule 103(a) (l), Fed.R.Evid., identical 
in 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), 900 F.2d 493, 497. Moreover, this Court has approved 

the use of a motion in limine to preserve an objection for appeal, 

State v. Weeks (1995), 270 Mont. 63, 85, 891 P.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 891 P.2d at 490. 

In his Fifth Motion in Limine, dated March 4, 1994, Fuhrmann 

states: 

The statements attributed to Turner relate to the alleged 

state of mind and intent of Fuhrmann. While a witness 

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 a witness were 

asked, "Did he do it on purpose?", would the court allow 

the witness to answer the question?' 

The District 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. At that 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 as was his argument below. Fuhrmann properly preserved his 

objection and it is appropriate that we review it. 

9 
Fuhrmann contends that testimony by those who witnessed Turner 

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

was "not an accident" is inadmissible hearsay and should have been 

excluded by the District Court. Hearsay is 

a statement, other than one made by the 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 an exception for 

[al statement of the declarant's then-existing state of 

mind, emotion, sensation, or physical condition (such as 

intent, plan, motive, design, mental feeling, pain and 

bodily health), but not including a statement 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 any testimony 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 by the last clause 

in the text of Rule 803(3). 

The State argues that Turner's statements do address his own 

state of mind, and thus 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 

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

provoked the stabbing. The State cites State v. Losson (1993), 262 

Mont. 342, 348, 865 P.2d 255, 258, and State v. Magruder (1988), 

234 Mont. 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 to the hearsay rule. We 

decline to discuss these arguments, as the record reveals that the 

State has raised them for the first time on appeal. Henderson, 877 

P.2d at 1016. 

Some of the analysis and logic in the arguments proposed by 

both Fuhrmann and the 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 a victim'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 a piece' because Mr. Magruder would be 

packing a piece and would 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 he was afraid of the defendant. Maqruder, 765 P.2d 

at 718-19. Defendant had raised the defense of justifiable use of 
force, 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 a limiting 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. You are to consider the statements only in regard 

to the victim's state of mind and for no other purpose. 

Masruder, 765 P.2d at 718. 

The dissent in Macruder, which relied heavily on Brown, 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 so prejudicial to the defendant as 

to be incurable by the court's limiting instruction. Macruder, 765 

P.2d at 720-21 (Sheehy, J.,' dissenting). Although the following 

point was not raised in the dissent, after our review of Maqruder 

we note that while the majority on the one hand 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 

12 
719. 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 the victim's statements in Maqruder, indicated his 

fear of the defendant. We concluded 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, we stated: 

That court delineated the distinction between hearsay and 

non-hearsay as it related to state of mind evidence. The 

distinction turns on whether 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, 865 P.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," and that 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 he feared her." Losson, 865 P.2d at 

259. We explained 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 he was 

afraid of [the defendant]. We hold that the first two 

statements were not hearsay. 

13 
Losson, 865 P.2d at 259. 

We concluded that the third statement made by 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 she was going to kill him." Since the statement contained 

direct evidence of the victim's state of mind, we determined that 

the State necessarily was offering the statement for its truth, and 

that the statement therefore was hearsay. Losson, 865 P.2d at 259. 

However, we held that the statement fit into the exception provided 

by Rule 803(3) and was admissible. Losson, 865 P.2d at 259. 

Based upon our analyses in Magruder and Losson, we reach 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 be considered nonhearsay and would be admissible. Losson, 865 P.2d at 259. 

However, such statements must be offered only for the purpose of 

showing the declarant's state of mind, and may not be offered for 

the truth of the matters asserted. Where we have upheld a district 

court's admission of such statements, we have considered the fact 

that the district court issued a limiting instruction to the jury 

explaining the purpose for which it could consider the statements. 

Magruder, 765 P.2d at 718; Losson, 865 P.2d at 259. 

14 
After 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 be offered. For that matter, 

there is nothing in the record which would explain why the 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 was being offered. 

To prevent any potential prejudicial effect on a defendant, 

and to uphold the integrity of both the hearsay rule and Rule 

803(3)'s "state of mind" exception, a trial court must instruct the 

jury as to the limited purpose for which it may consider this type 

of testimony. However, both the trial court and this Court must 

keep a vigilant eye toward the possible prejudicial effect of such 

testimony even if a limiting instruction is given. 

We hold that the District Court abused its discretion in 

admitting testimony of Turner's statements without also giving a 

limiting instruction as to why the testimony was being offered and 

how the jury was to consider it. However, we consider this error 

to be harmless, due to the independent evidence in the record upon 

which a jury could base a guilty verdict: Turner had been stabbed 

at least twelve times; one of Turner's most serious wounds, the 

wound to his buttock, was received before he and Fuhrmann reached 

the Airport Road; and, the.description of the wound to Turner's 

buttock given by his attending physicians and by a State crime lab 

15 
expert was inconsistent with Fuhrmann's claim that he accidentally 

stabbed Turner when he tripped and fell forward with a knife in his 

outstretched hand. 

Our conclusion that the District Court's error was harmless is 

consistent with this Court's previous holdings regarding the 

harmless error doctrine. Where federal constitutional error, such 

as improper jury instruction, is involved, we have applied the 

harmless error rule established by the United States Supreme Court 

in Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct. 824, 

8.28, 17 L.Ed.Zd 705, 710-11: for error to be harmless, it must be 

shown beyond a reasonable doubt that the error did not contribute 

to the verdict obtained. State v. Rothacre (19951, 272 Mont. 303, 

312-13, 901 P.2d 82, 88; State v. McKenzie (1980), 186 Mont. 481, 

532, 608 P.2d 428, 458. In considering the prejudicial effect of 

a district court's erroneous evidentiary ruling, a matter of state 

law, this Court has stated that "[tlhe essential question is 

whether there is a reasonable 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), 207 Mont. 261, 268, 673 P.2d 1262, 1266. This Court has 

noted that the federal harmless error rule and Montana's harmless 

error rule are essentially the same, and that in either case 

overwhelming evidence of a defendant's guilt can render harmless a 

district court's error. McKenzie, 608 P.2d at 458; Brodniak, 779 

P.2d at 74. We conclude that there was overwhelming evidence of 

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

contribute to his conviction. We hold that the error was harmless. 

ISSUE TWO 

Did the District Court err in denying Fuhrmann's motion for a 

change of venue? 

This Court will not disturb a district court's denial of a 

motion for change of venue absent an abuse 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 a change of venue. 

Section 46-13-203(l), MCA, states that a defendant is entitled 

to 

move for a change of place of trial on the ground that 

there exists in the county in which the charge is pending 

such prejudice that a fair trial cannot be had in the 

county. 

Further, a motion for change of venue must be granted 

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 a fair and 

impartial trial. 

State v. Link (1981), 194 Mont. 556, 559-60, 640 P.2d 366, 368 

(citing People v. Berry (Ill. 1967), 226 N.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 at the time of his retrial. First, Fuhrmann 

points to three separate death threats that he received prior to 

17 
his first trial as indicative of the inflamed passions in the 

community. Second, he claims that the large number of potential 

jurors excused for cause and the large number of potential jurors 

who had 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. 

We dispose of Fuhrmann's first ground by noting that the death 

threats were received prior to his first trial, where Fuhrmann did 

not move for a change of venue. Fuhrmann does not allege that he 

received any additional death threats prior to his retrial. As we 

are reviewing the District Court's denial of Fuhrmann's motion for 

change of venue in the context of his retrial, we see no need to 

address this ground. 

As to Fuhrmann's second ground, we do not agree that the fact 

that a large number of potential jurors had prior knowledge of his 

case is prejudicial and warrants a change of venue. We have held 

that jurors1 knowledge of the case and publicity, without more, is 

insufficient to warrant a change of venue since it cannot be 

equated with prejudice. State v. Smith (1986), 220 Mont. 364, 378, 

715 P.2d 1301, 1309; see State v. Ritchson (1982), 199 Mont. 51, 

55, 647 P.Zd 830, 832. Moreover, it appears from the record that 

the court was particularly careful to question individually those 

jurors who indicated that they had some prior knowledge of the 

case, and instructed the potential jurors and the jurors ultimately 

18 
chosen of their duty to render a verdict based solely on the 

evidence presented at trial. We see no reason to question the 

District Court's exercise of discretion in relation to this ground 

presented by Fuhrmann. 

Finally, we cannot 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 show that the publication at issue was inflammatory. Second, 

the defendant must show that the publication actually inflamed the 

prejudice of the community to the extent that a reasonable 

possibility exists that he may not receive a fair trial. Ritchson, 

647 P.2d at 832. The first element focuses on the nature of the 

publicity while the second focuses on the effect. Ritchson, 647 

P.2d at 832. 

In State v. Nichols (1987), 225 Mont. 438, 734 P.2d 170, we 

described inflammatory publicity as 

editorializing on the part of the media or any calculated 

attempt to prejudice public opinion against [defendant] 

or to destroy the fairness of the pool from which 

[defendant's] prospective jurors would be drawn. 

Nichols, 734 P.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 news reports 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 

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

that the reports merely contained factual accounts of the 

background of the case as well as the trial proceedings. Fuhrmann 

notes that some reports contain references to his criminal history 

and to the prosecution's initial theory that Fuhrmann had sexually 

assaulted Turner. However, we conclude, as did the District Court, 

that these bare statements were a part of "standard news accounts 

of court events and filed 'information," news accounts that were 

"devoid of editorializing.1' 

To support his contention that the news reports inflamed the 

prejudice of the community, Fuhrmann points to the 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 a survey 

conducted by a Montana State University professor which established 

the Billings community's awareness of Fuhrmann's case. We have 

already explained our unwillingness to consider the death threats 

received prior to the first trial as indicators of alleged 

prejudice surrounding the retrial some six months later. We have 

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 of the 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 

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

450 persons questioned in the survey stated that they had heard of 

Fuhrmann's case. Of that percentage, 49% said they had an opinion 

of Fuhrmann's guilt or innocence, and the 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 in the survey we cannot conclude that pretrial 

publicity inflamed prejudice in the Billings community, especially 

in light of our determination that the news reports were not 

facially inflammatory. See Moore -I 885 P.2d at 478. 

We are aware that surveys are appropriate means of determining 

whether prejudice exists in a community. State v. Paisley (1983), 

204 Mont. 191, 194, 663 P.2d 322, 324. Where we have acknowledged 

a survey's results as supporting a court's grant of a motion to 

change venue, we have noted the connection between the results of 

the survey and extensive editorializing by the local newspaper 

against the defendant. Paisley, 663 P.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 was granted by the district court 

and affirmed by this Court. Here ( we conclude that there was no 

editorializing by the Billings Gazette against Fuhrmann. There can 

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

connection we contemplated'in Paislev--between the Montana State 

University survey and the Gazette news reports. See Moore, 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 we do, in a society which is continuously 

inundated with news coverage by the print and broadcast 

media, it is doubtful that most members of the community 

will not share some knowledge of, or about, a locally 

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 of the district court, in such cases, to 

scrupulously examine the evidence supporting a motion 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 by what they may have 

seen, heard, or read. That conclusion must necessarily 

be based upon not only the jurors' responses in voir 

dire, but also on a careful analysis of the quantity and 

content of the pretrial publicity. Each case is unique 

and must be decided on its own merits. Bousquet, 808 

P.2d at 508. While this was a difficult case, we are 

nonetheless satisfied that the trial judge 

conscientiously considered this issue, and that despite 

the pervasiveness of the media coverage, it was generally 

balanced and fair. We conclude that the jurors who 

decided [defendant's] fate were not disposed to guilt or 

innocence by what they may have seen, heard, or read in 

the media. 

Moore, 885 P.2d at 479. The standard that must be met 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 a reasonable 

apprehension that the accused cannot receive a fair and impartial 

22 
trial.ll Link -I 640 P.2d at 368 (citation omitted). After reviewing 

the record, we hold that the District Court did not abuse its 

discretion when it denied Fuhrmann's motion for change of venue, 

impliedly concluding that such reasonable grounds did not exist. 

Affirmed. 

Justices 

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