NO. 83--04 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJAMES E. GRAY, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Ravalli, 

The Honorable H. William Coder, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

John E. Riddiough argued, Missoula, Montana 

For Respondent: 

Mark Murphy argued, County Prosecutor Services, 

Helena, Montana 

-- 

Submitted: October 25, 1983 

Decided: December 23, 1983 

- - . 

Clerk 
2.1~. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Following a jury trial in the District Court of 

Ravalli County, defendant was convicted of criminal 

mischief, a felony, by reason of damaging a pickup with the 

purpose of defrauding an insurer. Defendant appeals from 

the judgment of conviction. 

This is an appeal following the second trial of this 

case. This Court reversed the first conviction of defendant 

for procedural errors in admitting "other crimes" evidence. 

State v. Gray (Mont. 1982), 643 P.2d 233, 39 St.Rep. 622. 

The present case is a retrial of defendant on the 

original charge before a different judge and jury. In 

essence, the State's evidence indicated that defendant considered his pickup a "lemon" and wanted to get rid of it; 

that his insurance on the pickup was being cancelled effective August 31, 1980; that on August 28, he intentionally 

drove the vehicle over a steep bank on the Skalkaho road to 

collect the insurance; that defendant and one Stephen 

Forsman concocted a story that defendant was forced off the 

road by a truck hauling a horse trailer; that thereafter the 

insurance adjuster determined that the pickup was not a 

total loss but was repairable; and thereafter one Terry 

Atkins vandalized the pickup with defendant driving Atkins 

to its location and acting as a lookout. 

Defendant's evidence essentially consisted of a 

refutation of the State's evidence by impeachment of the 

State's witnesses together with defendant's testimony 

concerning the events in question. Basically, defendant 

testified that he left his trailer on the evening of August 
28 in a rage to drive up to Skalkaho Falls to cool off; that 

he did not like Stephen Forsman and was mad at his stepdaughter Leala for running around with Forsman; that they 

followed him in another vehicle and when he looked over his 

shoulder to see if they were still following him, his pickup 

went over the bank on the Skalkaho road and injured him; 

that the story about being forced off the road by a truck 

and horse trailer was entirely the invention of Stephen 

Forsman but he went along with it to protect Forsman. Defendant denied any complicity in later vandalizing his pickup 

and denied prior knowledge of cancellation of the insurance 

on his pickup. 

Defendant advances three specifications of error: 

1. Defendant is entitled to a new trial because of 

prosecutorial misconduct resulting in the admission in 

evidence of defendant's parole status. 

2. The refusal of the court to instruct the jury on 

the lesser included offense of unsworn falsification to 

authorities, a misdemeanor, constitutes reversible error. 

3. The admission of photographs of defendant's truck 

after it had been vandalized constitutes reversible error. 

At a hearing in chambers on the first day of trial, 

the following colloquy took place between the opposing 

attorneys concerning defendant's parole status: 

"MR. RIDDIOUGH: I would have one final 

request, Your Honor, and that would be 

with regards to the fact that Mr. Gray 

was on parole at the time that this 

offense was allegedly committed and I 

would request that the State caution its 

witnesses before testimony to not mention 

during their testimony anything regarding 

any prior convictions or any parole or 

parole revocation. 

"THE COURT: Mr. Murphy? 
"MR. MURPHY: Your Honor, in the trial of 

the first case Mrs. Townsend took great 

pains to sanitize the record of Mr. 

Gray's previous record. In fact, there 

is an indication on the part of James 

Bailey that he refused to answer a question put to him by Mrs. Townsend concerning what he did next. What he did next 

was contact Ralph Fisher, the Defendant's 

parole officer. We will again attempt to 

sanitize the record of any of those 

references and I will caution my witnesses and attempt to avoid any mention 

of that. 

"MR. RIDDIOUGH: That's sufficient for 

me. 

"THE COURT: Okay." 

Leala Gray, defendant's stepdaughter, was called as a 

witness in the State's case-in-chief. During direct examination by the prosecutor, the following exchange took place 

regarding Stephen Forsman, another of the State's witnesses: 

"(2. And so you proceeded back. Did you 

talk about anything else on the way back? 

A. Well, Steve was mumbling about, what 

am I going to do. I don't want to be in 

trouble. I don't want to get involved. 

"Q. Did that make sense to you? A. 

Yeah. 

"Q. How did you feel that he would be in 

trouble? A. The conversation at dinnertime would make him feel like he could 

possibly get in trouble. 

Q. With your father, with the authorities, what kind of trouble? A. Well, 

see, what we talked about at dinnertime 

was the trouble we've been having with 

the brown truck and the argument dad has 

with C&M Arrow and him being on parole 

and he knew that since dad wrecked the 

truck, that would affect his parole and 

that would bring in the law and Steve 

didn't like the law -- doesn't like the 

law. '' 

Later, during the same examination of this witness by 

the prosecutor in the State's case-in-chief, the following 

exchange took place: 
"Q. Okay. But you told this story to 

Officer Bailey because you didn't want to 

lie; is that right? A. Because I wanted 

to help Steve stay out of the scene of 

this whole thing. I guess the word I'm 

looking for is cover for Steve. 

"Q. And what had Steve done wrong? A. 

Well, he told them that there was a truck 

and trailer involved that wasn't. 

"Q. And he told them that because he was 

afraid he was going to get in trouble? 

A. Uh-huh. 

"Q. For what? A. Because he knew about 

the argument my dad had with C&M over the 

truck and he also knew that my dad was on 

parole. 'I 

At the conclusion of the direct examination of Leala 

Gray, appellant moved for a mistrial in chambers outside the 

presence of the jury based upon the eliciting of the testimony of defendant's parole status by the prosecutor as 

indicated above. 

The court denied the motion for mistrial but gave a 

cautionary instruction as follows: 

"Ladies and gentlemen of the jury, you 

have received some testimony in this case 

that the accused, James Gray, was on 

parole at the time that the events 

occurred in the instant case. 

"You are instructed to entirely disregard 

such testimony. The status of the 

accused is totally irrelevant and 

immaterial to any issue in the case 

before you and to consider such testimony 

in your deliberations would be violative 

of your oaths as jurors." 

Defendant correctly points out that the prosecutor 

breached his promise to caution Leala Gray against 

mentioning her stepfather's parole status. Additionally, 

questions were asked on two occasions during Leala Gray's 

direct examination by the prosecutor that elicited the fact 

that defendant was on parole. Defendant argues that the 
evidence that he was on parole at the time of the commission 

of the crime charged is evidence of other crimes that must 

pass both the test of admissibility and the test of proper 

notice before it can be introduced in evidence. State v. 

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

(Mont. 1980), 621 P.2d 1066, 37 St.Rep. 2057; State v. Gray 

(Mont. 1982), 643 P.2d 233, 39 St.Hep. 622. Additionally, 

the prosecutor stated that he purposely did not talk to 

Leala Gray prior to her testimony, although he had promised 

to caution her against disclosing her step-father's parole 

status. 

It is clear that misconduct by a prosecutor may form 

the basis for granting a new trial where the prosecutor's 

actions have deprived defendant of a fair and impartial 

trial. State v. Bain (1978), 176 Mont. 23, 575 P.2d 919; 

State v. Toner (1953), 127 Mont. 283, 263 P.2d 971; State v. 

Hart (Mont. 1981), 625 P.2d 21, 38 St.Rep. 133. 

The prosecution admits that it breached its promise to 

caution Leala Gray against disclosing her father's parole 

status during her testimony. The prosecution argues that 

the State did not intentionally fail to warn Ms. Gray not to 

mention her stepfather's parole status; that the State did 

not purposely elicit from her the testimony concerning her 

stepfather's parole status; that any prejudice caused by the 

mention of defendant's status was eliminated by the court's 

cautionary instruction; and that defense counsel had more 

than an equal opportunity by virtue of numerous contacts 

with Leala Gray to prevent this error by warning her himself 

and that defense counsel also failed to warn her. The State 

also argues that the error was harmless in any event. 
We find no excuse for the failure of the prosecution 

to warn Leala Gray not to mention her stepfather's parole 

status as the prosecutor had promised. However, we hold 

that under the circumstances of this case the District Court 

did not abuse its discretion denying the motion for mistrial 

for testimony concerning defendant's parole status. Rule 

403, Mont.R.Evid., provides the exclusion of relevant 

evidence that may prejudice the jury. However, as 

recognized by the Commission on Evidence, "a key element of 

this rule is the discretion of the judge in deciding whether 

otherwise relevant evidence is to be excluded." In State v. 

Rollins (1967), 149 Mont. 481, 428 P.2d 462, this Court held 

that on questions of this nature, the "trial judge should 

have latitude of discretion." 149 Mont. at 484; see also, 

State v. Austad (Mont. 1982), 641 P.2d 1373, 39 St.Rep. 356; 

State v. Azure (1979), 181 Mont. 47, 591 P.2d 1125; Wallin 

v. Kenyon Estate (1974), 164 Mont. 160, 519 P.2d 1236. 

As a matter of law, we cannot hold that the District 

Court abused its discretion in denying the motion for a 

mistrial. First of all, the judge stated that from 

observation of the jury, the impact of Leala Gray's 

testimony concerning the defendant's parole status was 

minimal. Also, the court cautioned the jury to disregard 

all evidence of defendant's parole status as it was 

irrelevant and immaterial which cured any resulting 

prejudice to him. 

Furthermore, we recognize that prejudice will not be 

presumed; it must be established from the record that a 

substantial right was denied. Section 46-20-701, MCA; State 

v. Wells (Mont. 1983), 658 P.2d 381, 40 St.Rep. 127; State 
v. Dupre (Mont. 1982), 650 P.2d 1381, 39 St.Kep. 1660. The 

test of prejudicial error requiring reversal is whether 

there is a reasonable possibility the inadmissible evidence 

might have contributed to the conviction. State v. Wells, 

supra; State v. Lave (1977), 174 Mont. 401, 571 P.2d 97; 

also see, Chapman v. California (1967), 386 U.S. 18, 87 

S.Ct. 824, 17 L.Ed.2d 705. 

Here, Leala Gray was a hostile witness for the State. 

She, unlike a law enforcement officer, had no motive to 

secure her stepfather's conviction. The State had no influence over her testimony. The evidence supporting 

defendant's conviction was substantial, if not overwhelming. 

Although there were many attempts to impeach various 

witnesses for both the State and the defendant during the 

trial, the defendant's version of events is simply 

incredible. It was refuted by witnesses Forsman, Atkins, 

Leala Gray and to some extent by the highway patrolman and 

the nurse at the hospital. We hold that the totality of 

circumstances shows no reasonable possibility that the 

inadmissible evidence might have contributed to defendant's 

conviction. 

Directing our attention to the second specification of 

error, we note that the court refused to give defendant's 

offered instruction on unsworn falsification to authorities, 

a misdemeanor. We further note that an identical instruction 

had been accepted and given by the court in appellant's 

first trial. 

Defendant argues that the District Court's instructions must cover every issue or theory having support in the 

evidence, and the inquiry of the District Court must only be 
whether or not any evidence exists in the record to warrant 

an instruction. State v. Buckley (1976), 171 Mont. 238, 557 

P.2d 283; State v. Bouslaugh (1978), 176 Mont. 78, 576 P.2d 

261. 

The crime with which defendant was charged reads as 

follows : 

"45-6-101. Criminal mischief. (1) A person commits the offense of criminal mischief if he knowingly or purposely: 

"(c) damages or destroys property with 

the purpose to defraud an insurer;" 

The misdemeanor offense of unsworn falsification to 

authorities provides that a person commits that offense if 

with a purpose to mislead a public servant in performing his 

official function, he utilizes a writing in a manner by 

which to mislead. Section 45-7-203, MCA. 

Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be 

applied to determine whether there are two offenses or only 

one is whether each provision requires proof of a fact which 

the other does not. Blockburger v. United States (1932), 

284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. Here, the 

elements of the crime of unsworn falsification to 

authorities are not required to be proved to establish the 

crime of criminal mischief. 

To determine if one crime is a lesser included offense 

of another, the statutory elements of the respective 

offenses, not the facts of the individual case, control. 

Blockburger v. United States, supra. A simple reading of 

the two statutes makes it clear that the elements necessary 

to constitute the two crimes are separate and distinct, 
having little in common. 

Finally, defendant argues that he is entitled to a new 

trial because several photographs of defendant's damaged 

pickup after it had been vandalized were admitted in evidence. Defendant contends that as he had not been charged 

with committing the vandalism the photographs were evidence 

of other crimes. In substance defendant says that the evidence should have been excluded as its probative value was 

substantially outweighed by the danger of unfair prejudice, 

confusion of the issues, or misleading of the jury as set 

forth in Rule 403, Mont.R.Evid. Also see, State v. Azure 

(1979), 181 Mont. 47, 591 P.2d 1125; State v. Rollins 

(1967), 149 Mont. 481, 428 P.2d 462. Defendant argues that 

the probative value of these photographs was minimal as 

testimony regarding the vandalizing of the pickup was 

elicited from several witnesses in the case. Defendant 

argues that under State v. Bischert (1957), 131 Mont. 152, 

308 P.2d 969, and Azure, supra, the evidence should not have 

been admitted and he is entitled to a new trial. 

The State counters by admitting that the pictures do 

contain evidence of other crimes but that a proper notice of 

the same was given to the defendant as required by State v. 

Just (1979), 184 Mont. 262, 602 P.2d 957. The State argues 

that the pictures show the damage done in both incidents and 

they were admitted to corroborate the State's theory on 

motive of the defendant. They were not gruesome and would 

not inflame the jury. 

In our view the pictures were properly admitted in the 

discretion of the trial court as proof of motive of the defendant and therefore their probative value was substantial 
and was not outweighed by prejudice to the defendant. 

A£ £ irmed. 

We concur: 

Justices 
Mr. Justice Daniel J. Shea, dissenting: 

I dissent. I would grant a new trial. 

The trial court in effect granted a verbal motion in 

limine directing the State not to present evidence that 

d.efendant was on parole. Although the State agreed that it 

would caution each of its witnesses not to maintain that 

defendant was on parole, the State deliberately chose not to 

talk to one of its witnesses before calling her to the 

witness stand. This witness therefore, was not warned that 

she must not mention that defendant was on parole. The 

witness twice (or three times) testified that defendant was 

on parole. The admission of this evidence in violation of a 

court order excluding such evidence, is presumptively 

prejudicial. The State has failed to demonstrate that this 

prejudicial evidence did not affect the outcome of the trial 

and therefore J would grant a new trial. 

It makes no difference whether the State deliberately 

elicited the forbidden testimony or inadvertently did so. 

The harm to the defendant is the same in either case. It can 

hardly be denied that evidence that a defendant has already 

been convicted of a felony is prejudicial. to his trial. It 

was the State's burden, once this inadmissible and 

prejudicial testimony was admitted, to prove a lack of 

reasonable possibility that the inadmissible evidence 

contributed to the conviction. Chapman v. California (1-967), 

386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. The State failed 

in this burden and this Court, therefore, has the duty of 

reversing the conviction and ordering a new trial. 

If the State had tactical reasons for not talking to 

witness Leala Gray before she testified, the State 
nonetheless was not freed from its duty of warning this 

witness not to testify that defendant was on parole. The 

State still had a method by which this witness could be given 

the admonition. Just before the witness testified, the State 

could have asked for a court conference in chambers, and then 

the witness could have been called in to chambers, and, at 

the State's request, the court could have warned the witness 

not to testify that defendant was on parole. But this was 

not done and the defendant should not have to bear the burden 

of the State's omission by having to satisfy this Court that 

the prejudicial evidence was considered in the jury's 

deliberations. Rather, it was the duty of the State to show 

that it was not considered. 

I further emphasize that the procedural context of the 

issue of defendant's being on parole, does not lead me to the 

conclusion that the prosecutor's conduct was as white as the 

driven snow. Defense counsel undoubtedly made the motion in 

limine because he knew that defendant's status a.s a parolee 

was bound to be injected into the trial. He knew this 

because of the record of the first trial and because of the 

investigation made before trial that indicated defendant's 

parole status was discussed. Therefore, before trial began, 

he made the verbal motion in limine. 

When witness Leala Gray in a nonresponsive answer to the 

State, first mentioned that defenda.nt was on parole, defense 

counsel d.id not then move for a mistrial, undoubtedly because 

of the fear of further emphasizing the forbidden evidence. 

But later in the witnesses redirect examination, she again 

mentioned that defendant was on parole. Again, d-efense 

counsel d.id not immediately move for a mistrial. Instead., he 

waited. until her examination had concluded and then he moved 
in chambers, for a mistrial because the forbidden evidence 

was placed before the jury. The trial court denied the 

motion but upon coming into the courtroom, gave the iury the 

cautionary admonition quoted by the majority. This 

cautionary instruction did not, however, cure the error, for 

the error was committed by the State. This error was 

presumptively prejudicial, and the State has not overcome 

this presumption of prejudice by a demonstration that the 

jury disregarded the fact that he was already a convicted 

felon. 

When defense counsel made his verbal motion in limine to 

forbid the mentioning that defendant was on parole, the 

prosecutor expressed his displeasure, but nonetheless 

expressed that he would go along with the efforts to 

"sanitize" the trial just as the State had made efforts to 

"sanitize" the first trial. It appears, however, that in 

bringing in the forbidden evidence, the State was not quite 

as white as the driven snow. 

The State knew that the witness most likely to bring in 

defendant's status as a parolee was Leala Gray, and she is 

the one witness who the State deliberately did not talk to 

before trial thereby avoiding warning the witness not to 

mention that defendant was on trial. Although the State 

asserts its noncomplicity in bringing the forbidden evidence 

before the jury, the context of the questioning leads me to 

believe that the assertion of innocence cannot stand. 

The first question asked by the prosecutor appears to be 

innocent enough, and Leala Gray's answer also appears to be 

nonresponsive. Nonetheless, they told the jury defendant was 

on parole and the State could have prevented this from 

happening (or at least done its part in doing so) by moving 
i.n chambers to have the court warn her not to mention that 

defendant was on parole. But the State chose not to do so 

and therefore viola-ted the order compelling the State to warn 

each of its witnesses. 

Later, in the redirect examination of Leala Gray, the 

prosecutor again asked questions of Leala Gray that no longer 

smack of innocence. The prosecutor asked the witness a 

second time about witness Stephen Forsman's fears that he 

would be in trouble. 

"Q. And he [Steve Forsman] told them [the 

authorities] that he was afraid he was going to get 

in trouble? A. Uh-huh. 

"Q. For what? A. Because he knew about the 

argument my dad had with C&M over the truck -- and he 

--- also knew that my --- dad was on parole." 

This second series of questions was asked after the 

witness had already, during the first series of questions, 

di.sclosed that defendant was on parole. By this time, the 

prosecutor was on notice that the witness was likely to again 

mention that defendant was on parole if the same kind of 

questions were directed to her. The prosecutor could only 

expect tha.t the same kind of question asked a second time 

would again elicit the same response--that defendant was on 

parole. And it did. For these reasons, I cannot look a the 

prosecutor's conduct as being a.s white as the driven snow. 

Here the jury had evidence before it that defendant had 

already been convicted of a felony, for his being on parole 

could lead only to that conclusion. It was axiomatic that 

admission of the defendant's previous criminal record is 

prejudicial. See Rule 404x(b), Mont.R.Evid., and the 

comments to that rule. The prejudice to defendant is 

increased where the evidence is admitted without any legal 

basis to support its admission. And that is precisely the 
situation here. It makes little sense to then impose the 

burden on the defendant to prove that the inadmissible and 

prejudicial evidence adversely affected the outcome of his 

trial. But that is what the majority has done here. The 

majority punishes the wrong party for the infraction of the 

trial court's order that certain evidence not be given to the 

jury. The majority has imposed an impossible burden on the 

defendant, a result hardly in accord with sound and fair 

rules of trial and. a-ppellate procedure. 

I next attempt to cut through the fog of the majority 

holding that admission of defendant's criminal record was 

harmless error. It is a difficult job because the fog is 

thick. 

In reviewing defendant's claim of error, the majority 

purports to be guided by Chapman v. California (1967), 386 

U.S. 1-8, 87 S.Ct. 824, 17 L.Ed.2d 705, in stating the "test -- 

- of prejudicial error." The majority states that the test is 

"whether there is a reasonabl-e possibility the inadmissible 

evidence might have contributed to the conviction." 

(Emphasis added. ) And yet the majority did not analyze the 

evidence in light of this test to determine whether the 

admitted inadmissible and prejudicial evidence might have 

infected the jury's verdict. Instead, the majority seeks 

several reasons to justify its decision not to reverse. 

First, the majority relies on the decision of the trial 

court refusing to grant a new trial. It is common, of 

course, for trial courts to refuse motions for new trials. 

And, once the trial court decided not to grant the motion he 

had to conclude that the inadmissible and prejudicial 

evidence had minimal. impact on the jury. He couldn't very 

well say the evidence had a great impact on the jury and 
still refuse to grant the motion for mistrial. I doubt, 

furthermore, tha.t the trial courtt s observations in this 

situation should be given much weight. The jury did not have 

to drop its teeth before the trial court concluded the 

evidence would adversely affect their deliberations. 

Second, the majority uses the standard ruling where a 

conviction is to be affirmed--the cautionary instruction 

given by the tria.1 court cured all. Yet we all know that 

once the knife is plunged in, a cautionary instruction does 

not cure all. The point is that the State, through 

questioning its witness, put the evidence before the jury 

that the defenda.nt was already a convicted felon. A 

cautionary instruction could not withdraw that information 

from the jury's mind. 

Third, the majority engages in a remarkable reversal of 

roles when it holds that even though the evidence was 

prejudicial, the duty is nonetheless imposed on the defendant 

to show that the offending evidence contributed to his 

conviction. The only way he could do this in a normal case 

would be to produce jury affidavits, and this is normally an 

impermissible method of demonstrating prejudice. Moreover, 

once the jury convicted, jurors would be reluctant to admit 

that the inadmissible evidence played a part in their 

decision to convict. 

Fourth, the majority concludes that Leala Gray was a 

hostile witness because she would have no motive to secure 

her stepfather's conviction. The fact is, however, that she 

a.nd her boyfriend Stephen Forsman testified at the first 

trial, and neither of them were called as hostile witnesses. 

And neither were they called as hostile witnesses by the 

State in the second trial. The implication is that Leala 
Gray purposely sought to produce a mistrial by testifying 

that her stepfather-defendant was on parole. Rut the 

evidence does not support that conclusion. A fair reading of 

the trial transcript indicates that the State was more than 

happy to get before the jury the fact that defendant was 

already a convicted felon. If the State did not want this 

information before the jury, it certainly did nothing to 

prevent it, and therein lies the evil of the majority 

holding. The State is given the benefit of its deliberate 

choice not to warn Leala Gray that she must not testify that 

the defendant was on parole. This choice flew in the face of 

the trial court's order. 

Fifth and finally, we get to the catch-all-, the apparent 

real justification for upholding the conviction. Apparently 

with Chapman 77. California, supra, in mind, the majority 

declares : "The evidence supporting defendant's conviction 

was substantial, if not overwhelming." If the evidence of 

defendant's guilt was overwhelming, it was the duty of the 

majority to set forth a.11 of that evidence to describe its 

overwhelming character. On the other hand, if the evidence 

of defendant's guilt was only "substantial," then the 

conviction cannot be affirmed by an application of the 

harmless error rule. Substantial evidence is required to 

affirm any criminal conviction challenged for legal 

sufficiency of the evidence, and substantial evidence is not 

enough to avoid a reversal based on application of the test 

set forth in Chapman v. California. 

I would vacate the iudgment and order a new trial.