NO. 90-565 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, Plaintiff & Respondent, 

GLORIA WELLS, Defendant & Appellant. 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Torger S. Oaas, Lewistown, Montana 

For Respondent : 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Patricia J. Jordan, Assistant 

Tom Meissner, Fergus County Attorney, Lewistown, 

Submitted on Briefs: December 12, 1991 
Justice Fred J. Weber delivered the Opinion of the Court. 

Defendant, Gloria Wells, appeals from her conviction of felony 

theft and misdemeanor theft after a bench trial in the District 

Court for the Tenth Judicial District, Fergus County. We reverse. 

The sole issue for our review is whether the District Court 

erred in admitting evidence of other crimes, wrongs, or acts of the 

defendant. 

Our summary of facts is taken from the extensive findings of 

fact on the part of the District Court. The defendant, Gloria 

Wells, and Debra McNamee (Debra), were friends and visited each 

other frequently from 1986 to September 1988. During June of 1988, 

Debra attempted to sell her diamond and ruby wedding ring from a 

previous marriage. Sometime in June, Debra authorized defendant to 

take the ring with her to Billings to try and sell it there. The 

next day, defendant returned the ring to Debra who then put it in 

her jewelry box for safe keeping. Some time after that, Debra 

looked for the ring and found it missing. Debra was the only 

person with authority to remove the ring from the jewelry box. 

In July of 1988, while traveling, Debra saw the defendant in 

Billings and noticed defendant was wearing her ring. When Debra 

returned home to Lewistown she found her house in a state of 

disarray with various items missing. 

Debra later saw defendant in a Lewistown bar and demanded the 

immediate return of all the items from her house. The items were 

not returned and on August 19, 1988, Debra reported the theft of 

various items from her home, including the ring and some missing 
checks, to the Lewistown Police Department. Later that same day, 

defendant was arrested in Billings for Felony Forgery Conspiracy 

for trying to pass a forged check in the amount of $1,700 drawn on 

the account of "Anna Duffyv. 

While defendant was being held on the charges in Yellowstone 

County the Billings Police Department removed Debra's diamond and 

ruby wedding ring from defendant's hand and also found in 

defendant's purse a series of checks belonging to Debra of which 

several had been removed. 

While defendant testified that she had Debra's permission to 

have both the ring and the check blanks, she pled guilty to the 

offense of misdemeanor theft for unauthorized control over the 

checks belonging to Debra. 

The District Court concluded that the defendant purposely and 

knowingly exerted unauthorized control over the wedding ring owned 

by Debra and purposely and knowingly exercised unauthorized control 

over the checks owned by Debra. Defendant appeals from the court Is 

determination that she was guilty of Count I Felony Theft and Count 

I1 Misdemeanor Theft. 

Did the District Court err in admitting evidence of other 

crimes, wrongs, or acts of the defendant? 

The day before trial the State filed a Just Notice with the 

court which read: 

Please be notified that the State of Montana will 

introduce evidence of other crimes, wrongs or acts 

specifically thefts, attempts of theft and forgery to 

show proof of motive on the part of the Defendant in this 

action to obtain money illegally during the summer of 

1988. 
The evidence introduced included testimony by Debra that defendant 

was "into heavy drugs8I, glinvolved with stealingtt, and had once 

pointed a gun at Debra. At trial, defendant objected to such 

testimony and a continuing objection was noted by the District 

Court. 

Defendant contends that the notice was insufficient because it 

failed to specify when the other crimes, wrongs or acts occurred 

and did not give her sufficient information to prepare a defense. 

Defendant further maintains that the evidence introduced that 

defendant had stolen other items from Debra was inadmissible 

because such allegations referred to crimes subsequent to the crime 

for which defendant was on trial. Defendant contends that evidence 

of subsequent acts is not admissible. 

The State maintains that the evidence that defendant was "into 

heavy drugsw was introduced to show motive to obtain money 

illegally. The Statels theory at trial was that the defendant had 

a motive of illegally obtaining money during the summer of 1988 to 

support her drug use. The State maintains that the gun incident 

was introduced to show the state of mind of the victim, i.e., fear 

of defendant, not to show that the defendant acted in conformity 

therewith. 

However, the State concedes that specific notice was not given 

that the State intended to introduce evidence of defendant's drug 

use or the incident where the gun was pointed at the victim. The 

State claims that any prejudice to the defendant was minimized by 

the cross-examination of the victim, wherein the victim stated that 

she had used drugs with the defendant. Finally, the State contends 
that in a bench trial, the dangers of improper use of other crimes 

evidence are minimal. 

Under the Modified Just Rule, the other crimes, wrongs or 

acts must be similar. State v. Matt (Mont. 1991), 814 P. 2d 52, 56, 

48 St.Rep. 614, 616; Rules 404(b) and 403, M.R.Evid. The Modified 

Just Rule provides: 

(1) The other crimes, wronss or acts must be similar. 

(2) The other crimes, wrongs or acts must not be remote 

in time. 

(3) The evidence of other crimes, wronss or acts is not 

admissible to prove the character of a person in order to 

show that he acted in conformity with such character; but 

may be admissible for other purposes, such as proof of 

motive, opportunity, intent, preparation, plan, 

knowledge, identity, or absence of mistake or accident. 

(4) Although relevant, evidence may be excluded if its 

probative value is substantially outweighed by the danger 

of unfair prejudice, confusion of the issues, misleading 

of the jury, considerations of undue delay, waste of 

time, or needless presentation of cumulative evidence. 

[Emphasis added.] 

Paragraph (1) of the Modified Just Rule provides that the 

other crimes, wrongs or acts must be similar. We conclude there is 

no similarity between the alleged drug usage and the gun incident 

and the crimes of theft with which the defendant was charged. We 

hold that the State's introduction of the evidence of defendant's 

alleged drug use and the gun incident constituted reversible error, 

even in a bench trial. 

For assistance on retrial we have further comments with regard 

to the Modified Just Rule. The notice required by the prosecution 

to the defendant under the Modified Just Rule provides: 

Evidence of other crimes, wrongs or acts may not be 

received unless there has been written notice to the 
defendant that such evidence is to be introduced. The 

notice to the defendant shall specify the evidence of 

other crimes, wronqs or acts to be acts to be admitted, 

and the specific Rule 404(b) purpose or purposes for 

which it is to be admitted. [Emphasis added.] 

State v. Matt, 814 P.2d at 56. The notice given in the present 

case with regard to other thefts stated that evidence of !!other 

thefts, attempts of thefts, and forgery would be offered to show 

proof of motive.I1 Such notice is inadequate to give the 

specificity of the evidence of other crimes, wrongs or acts to be 

produced. These must be identified in such a manner that the 

defendant may identify the specific incidents upon which evidence 

is to be admitted. As an example here, the notice properly could 

have referred to the items taken from Debra's home. 

As indicated, the notice stated that the evidence would be 

offered to show proof of motive. 22. C. Wright & K. Graham, 

Federal Practice and Procedure, § 5240, makes the following general 

observation with regard to motive: 

Evidence of motive may be offered to prove that the act 

was committed, or to prove the identity of the actor, or 

to prove the requisite mental state. It is important to 

determine which of the ultimate issues is to be proved by 

motive because the relevance of the evidence and its 

admissibility may not be the same on one issue as on 

another. 

Graham, Volume 22, page 480. Wrisht & Graham discusses at length 

the basis for admission of evidence to prove motive, intent, and 

absence of mistake, any one of which might be appropriate in the 

present case depending upon the nature of the evidence submitted on 

retrial. 

We emphasize that in analyzing the admissibility, the trial 

court should follow all of the steps set forth in the Modified Just 
Rule. 

The State also introduced evidence showing that the defendant 

was involved in a conspiracy to commit forgery on the bank account 

of Anna Duffy. Detective Cummings testified that defendant was 

detained to determine her involvement in the forgery of the $1,700 

Anna Duffy check; and further testified that defendant was arrested 

for conspiracy to commit forgery. As we analyze that evidence 

under the Modified Just Rule, we conclude that the proof of 

involvement in the Anna Duffy forgery does not demonstrate the type 

of proof of motive which is admissible under the Modified Just 

Rule. This is the type of evidence which is not admissible because 

its purpose apparently was to demonstrate that because defendant 

was involved in other similar crimes, she would have been involved 

here. That is prohibited under the first portion of paragraph (3) 

of the Modified Just Rule which states that evidence of other 

crimes is not admissible to prove the character of the person in 

order to show that she acted in conformity with that character. 

Unless other evidence is submitted establishing a relationship not 

in the present record, we point out that the evidence with regard 

to the Anna Duffy check would not be admissible under the Modified 

Just Rule. 

We reverse on the admission of evidence of the drug usage and 

the qun incident and remand to the District Court. 

We Concur: 

Justice R. C. McDonough specially concurs as follows: 

I concur with the foregoing majority opinion. In addition, 

the introduction of evidence that the defendant was Itinto heavy 

drugsn as proof of a motive, violates subdivision (4) of the 

Modified Just Rule. Such evidence, even if relevant, should be 

excluded under these facts. The probative value of the evidence is 

outweighed by unfair prejudice to the defendant. ,