No. 93-545 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

BENNETT JAMES PACE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Thomas M. McKittrick, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Julie A. Macek, Attorney at Law, Great Falls, 

Montana 

William F. Hooks, Appellate Defender, Helena, 

Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General; 

Patricia Jordan, Assistant Attorney General, 

Kelena, Montana 

Brant Ligh,t, .*.. County Attorney, Great Falls, Montana 

D Submitted on Briefs: 

AUG10 1995 Decided: 

Filed: 

May 4, 1995 

August 10, 199 

f 

'Clerk 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal from a judgment based upon a jury verdict in 

the Eighth Judicial District Court, Cascade County, and the court's 

sentence. We reverse and remand. 

Defendant, Bennett James Pace, presented four issues for 

review, but we have determined one issue is dispositive of this 

case : 

Did the District Court err in admitting evidence of alleged 

other acts pursuant to Rule 404(b), M.R.Evid.? 

Facts 

On October 8, 1991, two Jehovah's Witnesses entered the home 

of Donald John McLeod and found him dead on the floor, partially 

nude. The estimated date of death was October 6, 1991. 

Mr. McLeod suffered multiple stab wounds to the chest with 

fatal wounds to the heart. A knife, covered with blood of the same 

type as the victim's blood, was found on the floor at the crime 

scene and was determined to be consistent with the weapon that 

caused the injuries. No latent fingerprints were found on the 

knife. The lead investigator of the case believed the knife to be 

from Mr. McLeod's kitchen. However, relatives were unable to 

identify the knife. 

Based on the physical evidence, the police theorized the 

murder occurred during a burglary. An entry door appeared forced 

open. The doorknob was pulled off and the molding was broken. The 

house appeared to have been ransacked, with items strewn around the 

kitchen, living room, and bedroom. Several witnesses testified the 
victim generally kept his house neat and clean. Blood stains on 

the carpet under papers and clothing scattered on the living room 

floor indicated that the house had been ransacked after the murder. 

Relatives of the family were unable to identify any missing 

possessions of the deceased. 

On September 4, 1992, defendant was charged by information 

with deliberate homicide. Defendant was arrested on September 6, 

1992, in Spokane, Washington. On April 2, 1993, the information 

was amended, charging defendant with Count I, burglary, and Count 

11, deliberate homicide under the felony murder rule as specified 

in 5 45-5-102 (1) (b), MCA, or in the alternative, deliberate 

homicide, a felony as specified in § 45-5-102(1) (a), MCA. 

The State filed a notice advising the defendant of its 

intention to offer evidence of other crimes, wrongs or acts as 

required under the Modified Just Rule in State v. Matt (1991), 249 

Mont. 136, 814 P.2d 52. While the notice as given by the State 

referred to a number of different incidents, we are concerned here 

only with two specific incidents, evidence of which was admitted at 

the trial. 

The first incident involved an arrest in Missoula, Montana, on 

February 21, 1991, in which defendant was picked up for panhandling 

and charged with obstructing a peace officer and carrying a 

concealed weapon. Defendant possessed a six-inch fillet knife and 

identified himself using an alias. Additionally, defendant had two 

wallets with him containing identification cards of three different 

people. 
In the second incident, the State introduced evidence that on 

March 7, 1992, in Wenatchee, Washington, the defendant, using a 

different name, was arrested for armed robbery. On his person were 

found forty-six dollars taken from the victim and a knife. 

In the course of the jury trial, the District Court overruled 

defendant's objections to the evidence and advised the State it 

could present evidence of the two above-described incidents. The 

jury returned a verdict, on April 22, 1993, finding defendant 

guilty of burglary and deliberate homicide under the felony murder 

rule. A sentencing hearing was held on July 28, 1993, at which 

time the District Court pronounced sentence. 

Defendant appeals from the judgment. 

Issue 

Did the District Court err in admitting evidence of alleged 

other acts pursuant to Rule 404(b), M.R.Evid.? 

In State v. Keys (1993), 258 Mont. 311, 314, 852 P.2d 621, 

623, we set forth the standard of review of evidentiary rulings. 

The standard we use is whether the District Court abused its 

discretion. "The ID1 istrict [Clourt has broad discretion to 

determine whether or not evidence is relevant and admissible, and 

absent a showing of an abuse of this discretion, the court's 

determination will not be overturned." w, 852 P.2d at 623 

(citing State v. Crist (19921, 253 Mont. 442, 833 P.2d 1052). 

The evidentiary rule at issue is as follows: 

Rule 404. Character evidence not admissible to prove 

conduct, exceptions; other crimes; character in issue. 
(b) Other crimes, wrongs, acts. Evidence of other 

crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show action in 

conformity therewith. It may, however, be admissible for 

other purposes, such as proof of motive, opportunity, 

intent, preparation, plan, knowledge, identity, or 

absence of mistake or accident. 

Defendant objected to the State's introduction of evidence 

involving defendant's actions in Missoula, Montana, and Wenatchee, 

Washington, where defendant's knife was confiscated in both 

incidents. Defendant argues, while the District Court determined 

the other acts were used to show "opportunity, identity, and 

intent," the only purpose they served was to show bad character. 

Defendant refers to our decisions in Matt and more recently, State 

v. Johnston (1994), 267 Mont. 474, 885 P.2d 402, where we discussed 

admission of other acts when used to infer a defendant's character. 

In Johnston, we stated: 

To insure that prior crimes are not used to prove a 

bad character, this Court has established a four-part 

test to determine the admissibility of evidence of other 

crimes or acts in criminal prosecutions. Matt, 814 P.2d 

at 56. The four elements of that test are: (1) the 

other crimes, wrongs, or acts must be similar; (2) the 

other crimes, wrongs, or acts must not be remote in time; 

(3) the evidence of other crimes, wrongs, 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, confusing the issues, misleading of 

the jury, considerations of undue delay, waste of time, 

or needless presentation of cumulative evidence. Matt, 

814 P.2d at 56. This rule modified the Just rule, which 

originally set forth the basis for admission of other 

crimes, wrongs, or acts. 

Johnston, 885 P.2d at 404-05. 
Defendant asserts the State did not meet the first prong of 

the test and therefore failed to establish that the other acts were 

similar. In his analysis, the defendant points out that the State 

alleged the defendant was guilty of burglary which required that it 

prove the defendant knowingly entered or remained unlawfully in an 

occupied structure with the purpose to commit an offense. Section 

45-6-204(1), MCA. In a similar manner, in order to prove the 

defendant guilty of deliberate homicide under the felony murder 

rule, the State was required to prove the defendant attempted to 

commit, committed, or was legally accountable for the attempt or 

commission of burglary and, in the course of such burglary, the 

defendant or any person legally accountable caused the death of the 

victim. Section 45-5-102 (1) (b) , MCA. Last, in order to prove the 

allegations of deliberate homicide, the State was required to prove 

the defendant purposely or knowingly caused the death of another 

human being. Section 45-5-102 (1) (a), MCA. 

On the issue of similarity, the defendant analogizes the 

nature of the conduct in the three incidents as follows: 

Missoula panhandling incident in February 1991--involved 

obstructing a police officer and the carrying of a knife as a 

concealed weapon. The offense occurred on a street. 

Charged offense here in Great Falls in October of 1991--nature 

of the conduct was burglary and deliberate homicide (felony 

murder rule) which occurred in a residence. 

Wenatchee incident in March, 1992--involved a robbery without 

adequate proof as to where the offense occurred. 

With regard to possession or use of a weapon: 

Missoula incident--knife was in pocket and also in a bag when 

searched--knife was not used in the commission of any offense 

and the knife was seized by the police. 
Great Falls incident--knife used as a murder weapon, and knife 

was found at the scene and seized by the police--it may have 

belonged to the victim or to the defendant. 

Wenatchee incident--testimony fails to establish how or if the 

knife was used--no specific showing that the knife was used in 

the commission of any offense, and that knife also was seized 

by the police. 

Number of persons charged and number of victims: 

Missoula incident--only defendant arrested and there was no 

victim. 

Great Falls incident--only defendant arrested and there was 

the one murder victim. 

Wenatchee incident--defendant was one of two men arrested and 

there were two victims. 

Continuing that discussion, defendant argues that proof 

defendant had a knife in Missoula would not prove he had the 

opportunity to stab the victim in Great Falls because the police 

took the knife away from him. Likewise, proof that the defendant 

possessed a knife in March 1992 would not be relevant to show that 

he killed Mr. McLeod with a knife which was left at the scene of 

the crime. Defendant argues that the other acts evidence at most 

gives rise to the inference that because he had a knife at a 

different time or times, he must have had one at the time of the 

offense. Defendant asserts this is merely an inference of 

propensity offered to prove character and prohibited under Rule 

404 (b) , M.R.Evid. 

We agree with defendant's analysis and conclusion on this 

point. The mere fact that defendant had a knife in his possession 

on two occasions does not demonstrate the likelihood of his killing 

the deceased with a knife. 
The State argues that the evidence shows a similar intent to 

obtain other person's property by use of a knife as a weapon. The 

State argues that the carrying of knives in the two other incidents 

makes it more probable that defendant would have carried a knife at 

the time the homicide occurred. This argument is particularly weak 

in view of the presence of knives in the dwelling of the decedent 

so that it was not necessary that the defendant even bring a knife. 

The State also contends that it introduced the evidence of the 

other acts to show defendant's intent to attack peop1.e with knives 

to get property and to use aliases to escape detection, to show the 

opportunity to commit the crime, and to show the identity of the 

perpetrator. The State also contends that the admission of the 

other acts evidence after the cautionary instructions did not 

constitute unfair prejudice to the defendant. The other acts were 

of lesser crimes and would, therefore, not increase a juryr s desire 

to punish the defendant. Furthermore, the State contends the 

cautionary instructions given minimized the danger that the jury 

would use the evidence to infer the defendant had a propensity for 

bad character. 

We stated, in m, "the general rule of Rule 404(b) must be 

strictly enforced except where a departure is clearly justified, 

and exceptions to the rule must be carefully limited. [Citations 

omitted] ." m, 852 P.2d at 623. Evidence of other acts must 

satisfy all four elements of the Modified Just Rule before it can 

be admitted. m, 852 P.2d at 623, 625. We need not look to 
opportunity or intent if the other acts are not similar. See Matt, 

814 P.2d at 57. 

In Matt, we concluded that an incident where the defendant 

intended to further assault his female assault victim, although he 

assaulted an intervening police officer, was not sufficiently 

similar to an assault intended directly at a police officer. Matt, 

814 P.2d at 57. We have also held that crimes of forgery and 

burglary were not sufficiently similar because they are distinctive 

and their respective elements are quite different. Johnston, 885 

P.2d at 405. 

In the present case, the defendant's other acts consisted of 

using an alias, obstructing a police officer, robbery, and carrying 

concealed knives. We summarize our conclusion as to the similarity 

of these acts to the offenses charged as follows. The fact that 

defendant used an alias and obstructed a police officer is not 

relevant in proving the act of burglary-homicide. Robbery on a 

street is not necessarily similar nor comparable to burglary within 

a dwelling resulting in homicide. ~efendant's act of carrying a 

knife while panhandling is not in any way similar to the use of a 

knife in the course of a burglary-homicide. Defendant's act of 

carrying a knife in the Wenatchee incident, where it was unclear as 

to whether the knife was even used, also lacks similarity to the 

use of a knife in the course of a burglary-homicide. We, 

therefore, hold defendant's other acts are dissimilar in their 

respective elements from the act of burglary, deliberate homicide 

through felony murder, or plain deliberate homicide. 
We hold defendant's other acts are not sufficiently similar to 

the charged offense to satisfy the first element (similarity of 

acts) of the Modified Just Rule. As in Johnston, we detevmine 

there is no need to analyze subsequent elements of the Modified 

Just Rule because the first element was not met. See Johnston, 

885 P.2d at 405. 

We conclude the District Court abused its discretion in 

admitting evidence of the other acts pursuant to Rule 404(b), 

M.R.Evid. 

The judgment is reversed and this case is remanded for a new 

trial. 

We concur: