NO. 93-115

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

THE STATE OF MONTANA,

Plaintiff and Appellant,

v.

NEIL K. ANDERSEN and

THOMAS RIPPINGALE,

Defendants and Respondents.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Thomas C. Honzel, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Hon. Joseph P. Mazurek, Attorney General:

Elizabeth L. Griffing, Assistant Attorney

General, Helena

Mike McGrath, County Attorney, Helena

For Respondents:

Nicholas C. Jacques, Helena (Rippingale)

Gregory A. Jackson, Jackson & Rice, Helena

(Andersen)

Filed:

Submitted on Briefs: June 23, 1993

Decided: September 16, 1993
Chief Justice J. A. Turnage delivered the Opinion of the Court.

The State appeals from a pretrial order granting a defense

motion in limine. The order bars the State from presenting at

trial evidence of past uncharged criminal conduct of defendant

Thomas Rippingale. We affirm the order entered by the District

Court for the First Judicial District, Lewis and Clark County.

The issue is whether the District Court abused its discretion

in granting the motion in limine.

The defendants, Neil Andersen and Thomas Rippingale, have been

charged by information with conspiracy and solicitation. The

conspiracy charge alleges that Rippingale agreed with Andersen and

Bryan Hardy to commit arson by burning down a mansion owned by

Andersen. The solicitation charge alleges that Rippingale

solicited Hardy to steal a pickup truck owned by Andersen. Trial

on these charges has not yet occurred.

The State filed a notice of intent to introduce at trial

evidence of a previous conspiracy to commit arson at a duplex owned

by Rippingale, pursuant to the notice requirements of State v. Just

(1979), 184 Mont. 262, 602 P.2d 957, as modified in State v. Matt

(1991) I 249 Mont. 136, 814 P.2d 52. The State also sought to

introduce evidence of the theft of a pickup truck in 1980. The

proposed evidence connecting Rippingale to both uncharged criminal

acts would consist primarily of Hardy's testimony.

Rippingale moved in limine to bar the State from introducing

the evidence of the duplex fire and the theft of the pickup truck.

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The motion was submitted to the District Court on briefs and was

granted in a written memorandum and order. The court later denied

the State's motion for reconsideration. The State then filed its

notice of appeal, appealing only the portion of the District

Court's order suppressing evidence of the prior conspiracy to

commit arson at Rippingale's duplex.

Did the District Court abuse its discretion in granting the

motion in limine?

The standard for appellate review of evidentiary rulings is

whether the district court abused its discretion. State v.

Sadowski (1991), 247 Mont. 63, 69, 805 P.2d 537, 540. We will not

overturn a district court's findings of fact regarding suppression

hearing evidence unless those findings are clearly erroneous.

State v. Bower (1992), 254 Mont. 1, 7, 833 P.2d 1106, 1110.

The District Court's ruling was made under the modified Just

rule, after the courtweighedthe following requirements concerning

admissibility of evidence of prior acts:

(I-) The other crimes, wrongs or acts must be similar to

the crime charged:

(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 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:

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(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.

-IMatt 814 P.2d at 56.

The Just notice filed by the State identified "the fires which

occurred at the Rippingale duplex on or about February 3, 1987."

As the defense points out, the duplex fire with which Hardy has

confessed involvement occurred in late January of 1987. The duplex

was destroyed by a different fire, which occurred on February 3,

1987. Hardy has professed no connection with the February 3 fire,

and from its review of the record, the District Court found that

the January fire did not cause significant damage to the duplex.

The court, however, treated the two duplex fires as a unit for

purposes of considering the motion in limine.

The State asserts that the District Court abused its discretion by: 1) underestimating the relevance and significance of

other crimes evidence in conspiracy cases; 2) applying too strict

a similarity standard and comparing the characteristics of the

fires rather than the characteristics of the conspiracies: and 3)

finding that the prejudicial effect of the prior acts substantially

outweighed the probative value of the evidence. We will address

these arguments in the order in which the State has presented them.

Rule 404(b), M.R.Evid., provides that

[elvidence 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

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admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident.

This rule of evidence is restated in the third requirement under

the modified Just rule. Matt -I 814 P.2d at 56. The State asserts

that evidence of a previous agreement between Hardy and Rippingale

to start a fire is admissible under this rule because of its

relevance to the description, purpose, and nature of the charged

conspiracy. In its Just notice, the State described the purpose of

introducing the evidence as "to show intent, motive, plan, and to

show the long-standing involvement of these two men in criminal

activity as accomplices."

In its order granting the defense's motion in limine, the

District Court stated "the fact that Hardy and Rippingale may have

a history of criminal involvement is not a permissible purpose

under Rule 404(b)." However, this was not the primary reason for

the court's ruliny.

The primary reason given by the District Court for its ruling

is that the fires at Rippingale's duplex are not sufficiently

similar to the mansion fire. This determination reflects the first

factor under the modified Just rule.

The State asserts that all the differences listed by the

District Court between the charged crime and the offered evidence

relate to the nature of the fires. That is not true. The court's

order refers to ,the absence of evidence that the motives for

starting the fires at the duplex and at the mansion were the same,

5
because there is no evidence that Rippingale benefitted financially

from the mansion fire. The court also noted that the two buildings

were not owned by the same person and that Hardy did not receive

any payment for the fire at the Rippingale duplex but may have

received something from the mansion fire.

In further support of its argument that the District Court

applied too strict a standard on similarity, the State compares

this case with other Montana cases in which the admissibility of

evidence of other acts or crimes was at issue. The persuasive

value of this line of argument is limited for two reasons. First,

rulings on admission of evidence of prior acts must be made on a

case-by-case basis. Sadowski, 805 P.2d at 543. The Montana cases

cited by the State deal with a wide variety of crimes, assorted

purposes for introduction of the proposed evidence, and diverse

other crimes, wrongs, or acts. These variables impede comparison

of the cases.

Second, we emphasize our standard of review, which is to

affirm the district courts' discretion absent clear error. The

effect of this standard of review is demonstrated not only in the

Montana cases cited by the State, but also in the federal cases

cited, which are more factually similar to this case. Overwhelmingly, the appellate decisions affirm the discretionary rulings of

the trial courts.

The District Court stated that 'I [e]ven if the similarity prong

of the test can be considered satisfied, the evidence should still

6
not be admitted because its probative value is substantially

outweighed by the danger of unfair prejudice to [Rippingale]."

Unlike the proposed evidence in many cases, the proposed evidence

in this case is uncorroborated testimony of an alleged accomplice.

Moreover, it appears from the record that the credibility of Hardy,

thealleged accomplice, will be hotly contested at trial on several

bases. This raises significant questions about the probative value

of the proposed evidence. On the other hand, there is obvious

prejudicial potential in allowing the proposed evidence as an

indication of a long-standing involvement of Hardy and Rippingale

as accomplices in criminal activity.

We conclude that the District Court did not abuse its

discretion in granting the defense motion in limine prohibiting the

use at trial of the proposed evidence. We therefore affirm the

decision of the District Court.

We concur:

Justices

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Justice Fred J. Weber dissents as follows:

As presented in the majority opinion, I will discuss the

assertions by the State that the District Court abused its

discretion by: (1) underestimating the relevance and significance

of other crimes evidence in conspiracy cases; (2) applying too

strict a similarity standard and comparing the characteristics of

fires rather than the characteristics of the conspiracies: and (3)

finding that the prejudicial effect of the prior acts substantially

outweighed the probative value of the evidence.

Relevance and sisnificance of other crimes evidence in

conswiracv cases. The majority opinion does not discuss this at

length. I conclude it is the primary issue. The majority opinion

does point out that the District Court stated: "The fact that Hardy

and Rippingale may have a history of criminal involvement is not a

permissible purpose under Rule 404(b)." I conclude the District

Court was in error in stating that a history of criminal

involvement was not a permissible purpose. Defendant Thomas

Rippingale is charged by information with conspiracy. The State

cited Imwinkelried, Uncharsed Misconduct Evidence 5 4.22, which

describes the unique proof which a conspiracy prosecution requires,

and points to the relevance of the past relationships of criminal

involvement in a conspiracy case. Imwinkelreid states:

Suppose that the defendant is charged with a

conspiracy. Under substantive criminal law, the

prosecutor must showthatthe defendant performed the act

of entering into an illegal agreement with the alleged

coconspirator or coconspirators. The prosecutor has

evidencethatthe defendant and the alleged coconspirator

have had prior illegal dealings. May the prosecutor

offer that evidence to prove the act of entering into the

0
charged illegal agreementwithoutviolatingthe character

prohibition?

Numerous cases allow the vrosecutor to do nreciselv

-.that In vrincivle. this is a leaitimate use of

uncharaed misconduct evidence. The prosecutor is not

merely offering evidence of the defendant's prior

misconduct with third parties and arguing that since the

defendant once entered into an illegal transaction, he or

she probably entered into the charged illegal agreement.

Rather. the vrosecutor is offerina evidence of the

defendant's svecial relationshiv with the same

coconsvirator involved in the charaed consviracv and

contendins that the earlier, svecial relationshin

increases the likelihood that thev entered into the

later, charaed consviracv. This theory of logical

relevance is tenable. It is unlikely that a criminal

would approach a complete stranger with a proposal for an

unlawful conspiracy. It is much more vlausible that the

defendant will avvroach someone the defendant trusts and

someone whom the defendant knows is willina to enaaae in

illeaal activity. This is a vermissible noncharacter

theorv a relevance. (Footnotes

(Emphasi~fsu&$li!s?)

omitted.)

Imwinkelried, Uncharaed Misconduct Evidence 5 4.22 I agree with

Imwinkelried's conclusion that the relationships between

coconspirators are both permissible and relevant where a conspiracy

has been charged. Here the relationship between Hardy and

Rippingale is of central importance to a prosecution. In United

States v. Jones (11th Cir. 1991), 933 F.2d 1541, 1546, the circuit

court concludedthatevidence of another crime among coconspirators

was relevant not only to motive and intent, but also "to explain

the relationship" among them. That theory is directly applicable

in the present case. In a similar manner, in United States v.

McKay (9th Cir. 1985), 771 F.2d 1207, 1214, the Ninth Circuit

concluded that evidence of other crimes was admissible to "explain

the nature of the relationship" between coconspirators and

acknowledged that "evidence of prior criminal acts may be relevant
in conspiracy cases to show the background and development of the

conspiracy." In its Modified Just Notice in the present case, the

State listed the involvement of these two men in criminal

activities as accomplices as one of its purposes. I believe that

was clearly relevant.

Evidence of a past relationship between Rippingale and Hardy

constituted a foundation upon which a subsequent conspiracy could

be built. The District Court concluded that it was relevant that

Rippingale received $40,000 in insurance proceeds from the duplex

fire while Anderson received over $400,000 from the mansion fire.

I do not believe that the receipt of the monies by different

parties destroys the conspiracy aspect. In its notice, the State

also proposed that the evidence of prior conspiracy was relevant to

the issues of motive, intent and plan and I believe those are

properly a basis for admission as well.

I therefore conclude that under part (3) of the Modified Just

Rule, the evidence of the other crime was admissible to prove

motive, intent, plan, and also as an explanation of the conspiracy

relationship between the parties. While the latter aspect is not

specifically set forth in the Modified Just Rule, this Court has

determined that the evidence must be logically relevant to one of

the listed purposes "or Some other fact in issue and not merely

introduced as proof of a character defect." State v. Sadowski

(1991) t 247 Mont. 63, 72, 805 P.2d 537, 542.

Standard of similarity. other crimes must be similar. The

majority points out that the primary reason given by the District

10

.-
Court for its ruling was that the fire at Rippingale's duplex was

not similar to the fire at the mansion. I conclude the District

Court abused its discretion by applying too strict a similarity

standard. The similarity between the uncharged conduct and the

charged conduct is clearly material. Both acts involved an

agreement between Rippingale and Hardy to commit arson. In both

instances Rippingale approached Hardy with the request to set the

fire and Rippingale was shown to be the instigator. Hardy was the

man who actually set the fires. Finally, Rippingale and Hardy

coordinated when the fires were to happen. In the duplex fire,

Rippingale told Hardy when to set the fire, and in the mansion

fire, Hardy and Rippingale talked the night before the fire.

The District Court emphasized that it was significant that

Rippingale was paid the insurance proceeds on the duplex fire and

Anderson was paid the insurance proceeds on the mansion fire. I

suggest this has little relevance. The similarity lies in the

allegation that insurance proceeds were paid to the owner as a

result of arson. I conclude similarities between the two incidents

are clearly sufficient to meet the similarity test as enunciated in

other Montana cases.

As an example that such a strict rule of similarity has not

been applied in Montana, State v. McKnight (1991), 250 Mont. 457,

820 P.2d 1279, held that a sexual assault was sufficiently similar

to sexual intercourse without consent to allow evidence of the

assault under the Modified Just Rule. In a similar manner, prior

violent uncharged sex crimes were sufficiently similar to

11
deliberate homicide to allow such evidence. See State v. Gambrel

(l-o), 246 Mont. 84, 803 P.2d 1071.

I would therefore conclude that the prior conspiracy

established sufficient similarity under the Rule.

Preiudicial effect outweiahs DrObatiVe value. The majority

concludes that the District Court was correct in stating that even

if the similarity prong can be considered as being satisfied, the

evidence should not be admitted because its probative value was

substantially outweighed by the danger of unfair prejudice to

Rippingale. Here the District Court emphasized that the proposed

evidence was uncorroborated testimony of an alleged accomplice and

that the credibility would be hotly contested at trial. This Court

has concluded that prejudice alone is not a sufficient reason to

refuse admission of evidence under the Modified Just Rule. See

McRniaht, 820 P.2d at1284. "Unfair prejudice" has been previously

defined by this Court in State v. Paulson (1991), 250 Mont. 32, 43,

817 P.2d 1137, 1144 (quoting 10 James Wm. Moore, Moore's Federal

Practice 5 403.10[1]), as follows:

[B]y restricting the rule to evidence which will cause

"unfair prejudice" the draftsmen meant to caution courts

that mere nreiudicial effect is not a sufficient reason

to refuse admission. Probative evidence will frequently

be prejudicial to a party, but that does not mean that it

will cause the fact finder to ground a decision on an

emotional basis. Thus, evidence which tends to horrifv.

evoke svmnathv or increase a desire to DUnish due to a

prior act of a oartv and whose Drobative value is sliaht

mav P D v excluded.

(Emphabseis s?pp?%d.)

(Footnotes omitted.)

The District Court failed to properly apply this standard in making

a finding of unfair areiudice. The evidence here does not horrify,

12
evoke sympathy or increase a desire to punish, and the probative

value is certainly not slight. All we find here is that the

evidence would have some prejudicial effect but that in itself is

not a sufficient reason to refuse admission under State v. Paulson.

I would therefore conclude that the District Court abused its

discretion in concluding that the evidence should be excluded

because its probative value is substantially outweighed by the

danger of prejudice.

I would reverse the decision of the District Cour

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September 16, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following

named:

MIKE McGRATH, County Attorney

Lewis & Clark County

228 Broadway

Helena, MT 59601

HON. JOSEPH P. MAZUREK, Attorney General

Elizabeth L. Griffmg, Assistant

Justice Bldg.

Helena, MT 59601

Gregory A. Jackson

JACKSON & RICE

833 North Last Chance Gulch

Helena, MT 59601

NICHOLAS C. JACQUES

Attorney at Law

310 Broadway

Helena, MT 59601

ED SMITH

CLERK OF THE SUPREME COURT

STA’l$ OF ,MONTANA