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, TheHonorable Thomas M.McKittrick,Judgepresiding.

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, .*.. CountyAttorney, Great Falls,Montana 

# D Submitted 

### on Briefs: 

### AUG10

## 1995 Decided: Filed: May 4,1995 August 10, 199

f 'ClerkJustice Fred J. Weber delivered the Opinion of the Court. This is an appeal froma judgment based upon a jury verdict in the Eighth JudicialDistrict 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 fatalwounds to the heart. A knife,coveredwith 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,andbedroom. Severalwitnesses testifiedthevictim 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 themurder. 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 onlywith two specific incidents,evidence of whichwas admitted at the trial. The first incident involvedanarrest inMissoula, Montana, on February 21,1991,inwhich defendantwas picked up forpanhandling and charged with obstructing a peace officer and carrying a concealed weapon. Defendant possessed a six-inchfillet knife and identifiedhimself using an alias. Additionally, defendanthad two walletswith him containing identificationcardsof three different people.In the second incident, the State introduced evidence that on March 7, 1992, in Wenatchee, Washington, the defendant, using a differentname,was arrested for armed robbery. On his person were found forty-sixdollars 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 felonymurder 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 ID1istrict [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

(citingState 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 involvingdefendant's actions inMissoula, Montana, andWenatchee, 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),267Mont. 474,885 P.2d 402,where we discussed admissionof other actswhen 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 admissibilityof 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,oractsmust not be remote in time;

(3)the evidence of other crimes, wrongs, or acts is not admissible toprove the character of aperson inorder to show that he acted in conformitywith 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 outweighedby thedanger 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.2dat 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 defendantwas guiltyof burglarywhich required that it prove the defendant knowinglyentered 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 anyperson legally accountable caused the death of the victim. Section 45-5-102(1)(b) 

### , MCA. Last, in order to prove the allegationsof deliberatehomicide, the Statewas required toprove 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 inGreat Falls 

### inOctober 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 robberywithout 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 commissionof any offense and the knife was seized by the police.Great Falls incident--knife used as amurderweapon,and knife was found at the scene and seized by the police--itmay have belonged to the victim or to the defendant. Wenatchee incident--testimonyfails to establishhow or if the knifewas used--nospecific 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--onlydefendant arrested and there was no victim. Great Falls incident--onlydefendant 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 1992would 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 doesnot 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 isparticularlyweak in view of the presence of knives in the dwelling of the decedent

so that it was not necessary that the defendant evenbring a knife. The State also contends that it introduced the evidence of the other acts to show defendant's intent to attack peop1.ewith 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,"thegeneral 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 toopportunity 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 apolice officer. Matt, 814 P.2d at 57. We have also held that crimes of forgery and burglarywere not sufficiently similarbecause theyare 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 analias,obstructingapolice officer, robbery,and carrying concealed knives. We summarize our conclusionas 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 comparabletoburglary within

a dwelling resulting in homicide. ~efendant'sact 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 carryinga knife in theWenatchee incident,where it wasunclear 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 arenot sufficiently similar to the charged offense to satisfy the first element (similarityof 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.2dat 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: