No. 89-450 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsMARK E. BROWN, - ,-- 1 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of Beaverhead, 

The Honorable Frank Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Vincent J. Kozakiewicz, Kozakiewicz Law Office, 

Dillon, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

George Schunk, Assistant Attorney General, Helena, 

Montana 

Thomas R. Scott, Beaverhead County Attorney, Dillon, 

Montana 

Submitted on Briefs: February 1, 1990 

Filed: 
Justice Diane G. Barz delivered the Opinion of the Court. 

Mark E. Brown, defendant, was charged by information with 

felony assault, driving while under the influence, and driving 

while license suspended or revoked in violation of 88 45-5- 

202 (2) (c) , 61-8-401 (1) (a) and 61-5-212 (1) , MCA, respectively. A 

jury found defendant guilty on all counts on March 17, 1989. 

Defendant appeals the decision by the District Court of the Fifth 

Judicial District, Beaverhead County, allowing the introduction of 

evidence of other crimes, wrongs or acts. We reverse the District 

Court and remand for a new trial. 

On October 21, 1988, the defendant was released from the 

Beaverhead County Jail at approximately 9:00 a.m. Defendant 

proceeded to the Dillon Hotel and Bar, the Lobby Bar, and a local 

area inhabited by transient individuals known as the Itcabbage 

patch.'' At the cabbage patch, defendant made arrangements to 

purchase a blue 1963 Mercury Comet. Defendant's driver's license 

was suspended or revoked at that time. 

At approximately 1:00 p.m. on the same day, Terry Ersland was 

stopped at a downtown intersection when she noticed defendant 

honking his car horn behind her. Ersland was accompanied by two 

friends. All three individuals testified at the trial that 

defendant repeatedly honked his horn and then either "rammedtt or 

llbumpedlt their vehicle several times from behind. Defendant then 

veered around them and proceeded at a high rate of speed down a 

city street. During this time, defendant, in his own words, ''was 
a little bit more than intoxicated." Ersland and her friends then 

proceeded directly to the police station to report the incident. 

While Ersland and her friends were at the police station 

relating the incident, defendant arrived at the police station to 

pick up his belongings. Ersland and her friends then identified 

defendant as the driver of the blue car that ran into them at the 

downtown intersection. Officer Arthur Cranford of the Dillon City 

Police informed defendant that they had a report of an accident in 

which he had been the driver. Defendant denied any involvement and 

later testified at trial that a man named "Ed1' drove him to the 

county jail. When Officer Cranford informed defendant he was under 

arrest, defendant became belligerent and resisted booking. 

Defendant's resistance escalated with defendant striking Officer 

Cranford in the face and attempting to choke the officer. Only 

after Officer Cranford drew his revolver was defendant controlled. 

On November 4, 1988, defendant was charged by information with 

the offenses of felony assault in violation of 9 45-5-202 (2) (c) , 

MCA, driving while under the influence, a misdemeanor, in violation 

of 5 61-8-401 (1) (a) , MCA, and driving while license suspended or 

revoked, a misdemeanor, in violation of 9 61-5-212(1), MCA. A jury 

trial was held March 16 and 17, 1989. Prior to the trial, on 

February 24, 1989, the State filed a notice of intent to introduce 

evidence of other crimes, wrongs or acts. In particular, the State 

cited the following acts committed by defendant for the purpose of 

proving motive, intent, preparation, plan, knowledge or common 

scheme or plan. 
Auqust 12, 1988: 

Theft, a misdemeanor 

Driving while under the influence, a misdemeanor 

Leaving the scene of an accident, a misdemeanor 

Operating a vehicle without liability insurance, 

a misdemeanor 

Resisting arrest, a misdemeanor 

September 5, 1988: 

Disorderly conduct, a misdemeanor 

Resisting arrest, a misdemeanor 

Assault, a misdemeanor 

September 6, 1988: 

Assault, a misdemeanor 

October 11, 1988: 

Disorderly conduct, a misdemeanor 

In the omnibus hearing on pretrial matters, the District Court 

ruled that it would allow the introduction of evidence of other 

crimes, acts or wrongs and therefore denied defendant's objection 

to the introduction of the above-cited acts. During the State's 

case-in-chief, the evidence of prior crimes was introduced by the 

State and objected to by defendant. The jury returned a guilty 

verdict on all counts. 

The sole issue raised on appeal is whether the District Court 

erred in allowing the introduction of evidence of other crimes, 

wrongs or acts. 

Rule 404(b), M.R.Evid., codifies the law regarding the 

admission of other crimes, wrongs or acts. his rule provides 

that : 

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 that he acted 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. 

In this case, the State argues that the other crimes evidence was 

offered for the purpose of proving defendant's motive and intent 

with respect to his conduct at issue in the proceedings. After 

applying the four part test that this Court first recognized in 

State v. Just (1979), 184 Mont. 262, 602 P.2d 957, we hold that 

the District Court erred in allowing the introduction of acts 

committed by defendant between August 11, 1988 and October 12, 

1988. 

The four substantive factors that the State must demonstrate 

in order to introduce evidence of other crimes or wrongful acts are 

that the other crimes or wrongful acts are (1) similar in nature; 

(2) not remote in time; (3) tend to establish a common scheme, plan 

or system; and (4) that the probative value of the other crimes or 

wrongful acts is not substantially outweighed by their prejudice 

to defendant. State v. Keefe (1988), 232 Mont. 258, 266, 759 P.2d 

128, 133; Just, 184 Mont. at 269, 602 P.2d at 961. Applying the 

facts of the present case to these four factors, we find that the 

State failed to prove the third and fourth factors. 

We agree with the State that under these set of facts, the 

acts committed by defendant between August 11, 1988 and October 12, 

1988 are not remote in time, however, we also determine that the 

acts do not establish a common scheme, plan or system. While the 
acts committed between August 11, 1988 and October 12, 1988 may be 

similar in nature in some respects to defendant's conduct on 

October 21, 1988, this does not necessarily prove that the acts 

tend toward establishing a common scheme, plan or system. 

In particular, the State introduced evidence of incidents that 

occurred on August 12, 1988 and September 5 and 6, 1988. On these 

days, the State introduced evidence that defendant was intoxicated 

and verbally and physically abusive when police officers attempted 

to restrain him or arrest him. The State argues that this evidence 

was admitted to show that defendant "intended to inflict harm upon 

Officer Cranford, e. q. , the assault on the officer was neither a 

mistake nor accidental. 'I The introduced evidence in this case 

pertaining to the incidents on August 12 and September 5 and 6, 

1988 do not constitute a common scheme, plan or system. On the 

contrary, the record demonstrates that defendant's acts lacked any 

common scheme or plan and were instead spontaneous acts dictated 

by his character and the situation at hand. In addition, the cited 

acts' probative value does not outweigh the prejudice that flows 

to defendant under these circumstances. 

In light of the facts of this case, we hold that the District 

Court erred in allowing under Rule 404(b), M.R.Evid., evidence of 

acts committed by defendant between August 11, 1988 and October 12, 

1988. The crimes committed between these dates go towards 

defendant's character or trait of his character and therefore are 

not admissible for the purpose of proving that he acted in 

conformity therewith on a particular occasion. Rule 404(a), 
M.R.Evid. 

Reversed and remanded for a new trial. 

We concur: 

Justices d 
Chief Justice J. A. Turnage, dissenting. 

I respectfully dissent. 

The sole issue on appeal is whether there is error in the 

introduction of evidence of other crimes, wrongs or acts. 

The majority finds error in a failure to satisfy the third 

requirement of State v. Just (1979), 184 Mont. 262, 602 P.2d 957, 

in that the acts at issue do not tend toward establishing a common 

scheme, plan or system. 

I believe the record sufficiently satisfies this requirement 

of Just, the evidence tends to establish a common system or scheme 

of the defendant. Under Rule 404(b) the evidence does establish 

the defendant's opportunity, motive and intent. Further, the 

language of Rule 404 (b) , M.R. Evid. , provides a basis for sustaining 

the introduction of the evidence at issue. The rule provides that 

such evidence may be admissible for other purposes, such as proof 

of motive, op~ortunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident. 

It first should be noted that the evidence relating to the 

incident of October 11, 1988, was introduced by the defendant on 

direct examination and not by the prosecution. This incident did 

not involve a violent act on the part of the defendant. 

The other three incidents, August 12, 1988, September 5, 1988, 

and September 6, 1988, as well as the crime for which the defendant 
was convicted and now appeals, all involved opportunity, intent, 

motive or scheme of the defendant to violently attack an arresting 

officer upon being placed under arrest. 

THE INCIDENT OF AUGUST 12, 1988 

At trial, Officer Pallas testified in substance: A citizen 

called the police department in Dillon and reported that someone 

had driven a vehicle into a telephone pole. In response, Officer 

Pallas found the defendant intoxicated in the automobile that 

defendant had driven into a telephone pole. The car was severely 

damaged. Defendant was trying to get the car to run so he could 

proceed on his way. The defendant's face had hit the steering 

wheel or the windshield and he was bloodied. The officer, being 

concerned about defendant's physical condition, called for an 

ambulance. Then the fun began. The defendant, obviously intoxicated, fought with both the officer and the ambulance crew. When 

the defendant was advised that he was under arrest, he said, "I 

ain't going nowhere with you, you ------- pigs." The defendant 

kicked the officer in the chest and fought with the ambulance crew 

and the officer until they finally transported him to the hospital 

for examination. 
THE INCIDENT OF SEPTEPlBER 5 AND 6 I 1988 

Officer Reeder, Beaverhead County sheriff's department, 

testified to the following. 

At approximately 11:OO p.m. on September 5, 1988, a call came 

to the sheriff's office from the manager of Kentucky Fried Chicken 

who reported that a man was sleeping in her vehicle. 

When Officer Reeder arrived he found the defendant either 

asleep or passed out in the manager's vehicle. The officer had 

difficulty in arousing the defendant. When he did arouse him and 

identified himself as a sheriff's officer, the defendant told him 

to Itgo get ------.I1 The sheriff's deputy had to struggle with the 

defendant to get him out of the vehicle. When he did get him out 

and advised him he was under arrest, the defendant struck the 

officer in the testicles. After more struggling, the defendant 

was finally subdued. He fought all the way to the jail. At the 

jail it took four officers to place him in a padded cell where he 

would presumably not injure himself. 

The transcript is full of interesting statements about 

defendant's profanity and his spitting in the faces of officers. 

I believe the record clearly indicates that the evidence of 

defendant's other prior crimes, wrongs or acts tends to prove the 

defendant did have opportunity, intent, motive, or common scheme 

when he was arrested, when he was full of strong drink, to fight 

and resist the arresting officers right to the jail or hospital. 
I believe Rule 404(b), M.R.Evid. and the Just standards have 

been met. In this case the defendant was convicted of assaulting 

a law enforcement officer. The evidence introduced by the 

prosecution in three of the above incidents clearly established 

that the defendant used the opportunity of arrest to assault the 

law enforcement officer or officers involved. The evidence of 

defendant's conduct was probative and did establish opportunity, 

intent, motive or common scheme. 

It would be a different matter if the evidence was introduced 

to only prove that in defendant's character there abides dislike 

of law enforcement officers. Such is not the facts in this case 

where such dislike escalates into violent assault. 

I would affirm. 

f kt T~W - 1 

Chief Justice