No. 92-414 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

STATE OF MONTANA, 

Plaintiff 

-vsBAR1 LYNNE LOSSON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Arthur J. Thompson; Thompson & Sessions 

Billings, Montana 

Michael G. Eiselein, Attorney at Law, 

Billings, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General: Patricia 

J. Jordan, Assistant Attorney General, Helena, 

Montana 

Dennis Paxinos, Yellowstone County Attorney, 

Billings, Montana 

Submitted on Briefs: August 26, 1993 

Filed: 
Justice John Conway Harrison delivered the Opinion of the Court. 

A jury in the Thirteenth Judicial District Court, Yellowstone 

County, convicted Bari Lynne Losson (Bari) of mitigated deliberate 

homicide for the shooting death of her husband, Rick Losson (Rick). 

The court sentenced her to twenty years with ten years suspended, 

plus a consecutive six-year term for the use of a weapon. She 

appeals. We affirm. 

The issues are: 

1. Did the District Court err by admitting hearsay statements 

of Rick? 

2. Did the District Court abuse its discretion in sentencing 

Bari? 

3. Did the District Court err in granting the State's amended 

information which charged Bari, for the second time, with 

deliberate homicide? 

Rick and Bari had a history of domestic problems. In fact, 

Rick beat Bari on numerous occasions and he was convicted three 

times for battering her. 

Following a domestic disturbance, Bari purchased a .38 Special 

pistol. On March 13, 1990, after a day of heated argument with 

Rick, she used the pistol to kill him. 

On that day at about 8:00 p.m., the couple was arguing. Rick 

charged out of the couple's trailer, yelling at Bari. Bari shot at 

him. She chased him down the street, continuing to fire at him 

with the revolver. In total, she fired six shots, hitting him once 
in the thigh. The sixth shot penetrated his chest, killing him 

instantly. 

The State charged Bari with deliberate homicide. She raised 

the affirmative defense of self-defense. Following plea 

negotiations, the State amended the information to charge mitigated 

deliberate homicide. The State agreed to recommend a sentence of 

thirty years, twenty-f ive suspended, and inf omed Bari it would 

seek an additional ten years for her use of a weapon. Bari 

accepted the plea agreement. 

On July 10, 1991, Bari pled guilty to mitigated deliberate 

homicide. Sentencing was scheduled for August 29, 1991. However, 

the State acquired evidence which suggested Bari killed Rick to 

gain $106,000 in life insurance. 

After an investigation, the county attorney informed defense 

counsel that he intended to support his argument for the ten-year 

use of a weapon sentence by introducing evidence to prove Bari 

killed Rick in an attempt to recover $106,000 in life insurance. 

Instead of complying with the plea agreement, Bari withdrew her 

plea of guilty on the charge of mitigated deliberate homicide. 

In September 1991, the State recharged Bari with deliberate 

homicide. The State recharged her, contending that Bari killed 

Rick to gain $106,000 in life insurance. 

The trial began on February 25, 1992. On the second day of 

trial, the court granted Bari's motion to exclude all evidence 

pertaining to the life insurance. 

On March 7, 1993, the jury found Bari guilty of mitigated 
deliberate homicide. The District Court sentenced her on March 8, 

1992, to twenty years, ten suspended, plus a consecutive six-year 

term for the use of a weapon. She appealed on June 2, 1992. 

Did the District Court err by admitting hearsay statements of 

Rick? 

The State offered three people who testified to statements 

Rick had made before he died. The court admitted the testimony, 

but gave a limiting instruction immediately following each 

contested statement. 

First, a counselor at Beta Alternatives testified that Rick 

had said Bari "threatened to kill him in the past." The court 

supplied the jury with the following instruction: 

Ladies and gentlemen, the testimony that you have just 

heard, to-wit, that Mr. Losson said to [a counselor] . . . that Mrs. Losson had threatened to kill him in the 

past, is not offered to prove the truth of the matter 

asserted. In other words, that she intended to do that 

act, but rather it is offered and its purpose is limited 

to show Mr. Losson's state of mind. That is the hearsay 

exception which it can be admitted under. Accordingly, 

you are not to consider the testimony for any purpose but 

as it regards Mr. Losson's state of mind. 

Next, Rick's boss at Hardee's testified that Rick had said 

"Bari would kill him if he ever moved out." The court gave a 

similar instruction to the jury. 

Finally, Rick visited an officer in the Naval Reserves to 

inquire about the possibility of returning to active duty status 

during the Dessert Storm conflict. The officer testified that Rick 

had said he wanted to go active because "[hie was afraid of his 

wife and thought she was going to kill him." Again, the District 
Court gave a similar instruction to the jury. 

The State argues that Rick's statements were relevant because 

Bari asserted the claim of self-defense. We agree. 

We have previously concluded that a victim's state of mind is 

especially relevant in a homicide case where the defendant asserts 

the claim of self-defense. State v. Magruder (1988), 234 Mont. 

492, 496, 765 P.2d 716, 719 (citation omitted). The relevant issue 

is whether the victim feared the defendant. If a victim has 

previously announced that he was fearful of a defendant, the jury 

could infer from that statement that it is unlikely the victim 

attacked the defendant. Maaruder, 765 P.2d at 719 (citation 

omitted). If the jury infers that it is unlikely the victim 

attacked the defendant, it follows that the defendant could not 

have acted in self-defense. Effectively, testimony about the 

victim's state of mind rebuts the defendant's claim of selfdefense . 

Here, Rick's statements to the three witnesses are relevant to 

the issue of whether Rick feared Bari. Bari, by claiming selfdefense, opened the door for the prosecution to rebut that defense 

with the state of mind statements, which established Rick's fear of 

Bari. We hold that the three statements were relevant. 

Next, Bari argues that these statements are inadmissable 

hearsay. We disagree. 

Hearsay is a statement made out of court, which is offered in 

court to prove the truth of the matter asserted. Rule 801(c), 

M.R.Evid. Rule 801(c), M.R.Evid. reads: 
[hlearsay is a statement, other than one made by the 

declarant while testifying at the trial or hearing, 

offered in evidence to prove the truth of the matter 

asserted. 

Although the distinction between hearsay and non-hearsay state of 

mind statements is somewhat confusing, a leading case from the 

District of Columbia Court of Appeals lends clarification. U.S. v. 

Brown (D.C. Cir. 1973), 490 F.2d 758. That court delineated the 

distinction between hearsay and non-hearsay as it related to state 

of mind evidence. The distinction turns on whether the statement 

is evidence which directly proves the declarant's state of mind or 

whether the statement is evidence which circumstantially proves the 

declarant's state of mind. Brown, 490 F.2d at 762-63. 

If the evidence circumstantially proves the declarant's state 

of mind, then the evidence is not offered to prove the truth of the 

matter asserted and the evidence is not hearsay. Brown, 490 F.2d 

at 762-63. The Brown court explained that: 

the statement "X is no goodu circumstantially indicates 

the declarant's state of mind toward X and, where that 

mental state is a material issue in the case, such 

statement would be admissible with a limiting 

instruction. Technically [the statement] is not even 

hearsay since it is not being admitted for the truth of 

the matter alleged. We do not care whether X is in fact 

"no good" but only whether the declarant disliked him. 

Similarly, here, we conclude that the first two statements are 

not hearsay. The State did not introduce the statement that Bari 

"threatened to kill him in the past" to prove the fact that she 

threatened to kill Rick. Nor did the State offer the statement 

that "Bari would kill him if he ever moved out" to prove the fact 
that she contemplated killing Rick if he moved out of the house. 

Rather, these statements circumstantially indicated Rick's 

state of mind toward Bari; that he feared her. The jury was 

instructed not to consider whether Bari, in fact, threatened to 

kill or would kill Rick. Instead, the jury was instructed to 

consider Rick's state of mind; whether he was afraid of Bari. We 

hold that the first two statements were not hearsay. 

Alternatively, when the evidence directly proves the 

declarantls state of mind, the evidence is introduced to prove the 

truth of the matter asserted and is hearsay. Brown, 490 F.2d at 

762-63. The Brown court rationalized that: 

the statement "1 hate X" is direct evidence of the 

declarant's state of mind and, since it is being 

introduced for the truth of the matter alleged, must be 

within some exception to the hearsay rule in order to be 

admissible. 

Here, the third statement that Rick "was afraid of his wife 

and thought she was going to kill him" is direct evidence of Rick's 

fear. The State introduced the statement to prove the truth of the 

matter asserted in the statement or to prove that Rick was afraid 

of his wife. Since the statement was offered to prove that Rick 

feared Bari, the statement is hearsay. However, Rule 803(3) 

M.R.Evid., allows an exception: 

[a] statement of the declarant's then-existing state of 

mind, emotion, sensation or physical condition (such as 

intent, plan, motive, design, mental feeling, pain and 

bodily health), but not including a statement of memory 

or belief to prove the fact remembered or believed. 

The State contends, and we agree, that the third statement 
meets the hearsay exception of Rule 803 (3), M.R.Evid. The 

statement was offered to explain ~ick's state of mind when he 

sought to reenlist to active duty in the Navy. We hold that the 

third statement meets the hearsay exception of Rule 803 (3), 

M.R. Evid. 

Although the District Court admitted the three statements 

under Rule 803 (3) , M.R. Evid., generally, "we will affirm the 

decision of the trial court [if it correctly admits the statements] 

regardless of its basis in admitting the statements." State v. 

McCord (1992), 251 Mont. 317, 325, 825 P.2d 194, 200. Here, the 

District Court correctly admitted the statements and gave limiting 

instructions after admitting each statement. Since the court 

correctly admitted the statements, we affirm its decision. 

Bari contends that the District Court should not have admitted 

the three statements because the statements were not trustworthy, 

reliable or credible. She suggests that Rick made the statements 

to fabricate an in-advance corroboration of the defense he planned 

to use the next time he was arrested for beating her. Bari argues 

that the court should have made a determination on the reliability, 

trustworthiness and credibility of the statements prior to 

admitting them. 

Conversely, the State argues, and we agree, that the trial 

judge is not required to scrutinize the credibility and weight of 

state of mind statements prior to admitting them. Rather, "the 

jury is the sole judge of [the] credibility and weightw of 

testimony. Rule 104(e) M.R.Evid.; Commission Comments, Montana 
Code Annotated, Rule 104(e) M.R.Evid., ~itle 26, Vol. 5, p. 189 

(1993). The jury decides the facts and who to believe. 

We conclude that ~ari had ample opportunity to argue to the 

jury that, given the circumstances, Rick's statements were not 

credible. We refuse to second-guess the jury's decision. 

Moreover, we have previously concluded that state of mind 

statements are reliable. McCord, 825 P.2d at 200. In the present 

case, Rick told the Naval officer that he wished to reenlist to 

active duty because "he was afraid of his wife and thought she was 

going to kill him.'* This statement was a spontaneous response 

which explained his state of mind when he sought to reenlist to 

active duty with the Navy. 

Further, when Rick's boss inquired as to why he would not 

leave Bari, Rick replied that she "would kill [me] if [I] ever 

moved out.ft This was a spontaneous response to a contemporaneous 

inquiry as to his state of mind. 

Finally, on one occasion Rick moved out of the couple's 

trailer home and lived at a local motel. While at the motel, he 

phoned his counselor. He told the counselor that Bari "threatened 

to kill him in the past." This statement was a spontaneous 

response in a phone conversation in which Rick revealed his state 

of mind to a counselor. We conclude that a jury could find these 

statements reliable. 

Next, Bari contends that the prejudicial effect of the 

statements outweigh their probative value. We disagree. 

We will not disturb the district court's evidentiary rulings 
absent an abuse of discretion. Maqruder, 765 P.2d at 718. Here, 

we conclude that the District Court properly weighed the competing 

concerns and correctly determined that the probative value of the 

statements outweighed their prejudicial effect. We hold the court 

did not abuse its discretion and it properly weighed the evidence 

in accordance with Rule 403, M.R.Evid. 

Finally, Bari, for the first time, objects to the prosecutor's 

closing argument. She argues that the prosecutor improperly 

invited the jury to use Rick's statements to establish her state of 

mind. In closing, with no objection from Bari, the prosecutor 

said: 

She may blame all that past year of history and take it 

out on him the last one, you son-of-a-bitch, you [have] 

been beating on me for a year, do you think you are going 

to leave? Do you think you are going to go to the Navy? 

You think you are? Oh no, buddy, not after what I have 

been through. You are dying here tonight. 

It is well established that a defendant's failure to 

contemporaneously object to an error precludes our review of the 

alleged error. State v. Rodgers (Mont. 1993) , 849 P. 2d 1028, 1031- 

32, 50 St.Rep. 335, 337. The parties must first allow the trial 

court the opportunity to correct the error. Rodsers, 849 P.2d at 

We do not, by any means, condone the State's excerpted 

argument in this case. The State inappropriately used the evidence 

to suggest Barifs state of mind. 

However, 5 46-20-104(2), MCA, states that fl[f]ailure to make 

a timely objection during trial constitutes a waiver of the 

objection except as provided in 46-20-701 (2) . Section 46-20- 
701(2), MCA, provides that: 

[n]o claim alleging an error affecting jurisdictional or 

constitutional rights may be noticed on appeal, if the 

alleged error was not objected to as provided in 46-20- 

104, unless the defendant establishes that the error was 

prejudicial as to his guilt or punishment and that: 

(a) the right asserted in the claim did not exist at 

the time of the trial and has been determined to be 

retroactive in its application; 

(b) the prosecutor, the judge, or a law enforcement 

agency suppressed evidence from the defendant or his 

attorney that prevented the claim from being raised and 

disposed of; or 

(c) material and controlling facts upon which the 

claim is predicated were not known to the defendant or 

his attorney and could not have been ascertained by the 

exercise of reasonable diligence. 

Here, Bari did not object to the closing argument and, thus, 

she waived her objection. Further, we cannot allow Bari to raise 

the objection for the first time on appeal because her objection 

does not meet an exception under 5 46-20-701 (2) , MCA. We hold that 

Bari's failure to object at trial precludes our review of the 

alleged error. 

Did the District Court abuse its discretion when it sentenced 

Bari? 

Bari argues that the District Court should have sentenced her 

to probation because she did not have a prior criminal record, and 

she posed no great risk to society at the time of sentencing. This 

argument lacks merit. 

Where the district court has considered the factors of 9 46- 

18-101(3), MCA, and where the sentence is within the legal limits 
imposed by the applicable statutes, this Court will not find an 

abuse of discretion. State v. Alrnanza (1987), 229 Mont. 383, 386, 

746 P.2d 1089, 1091. Mitigated deliberate homicide carries a 

maximum sentence of forty years imprisonment and a $50,000 fine (5 

45-5-103 (4), MCA) and the maximum sentence for using a weapon is 

ten years (5 46-18-221(1), MCA), 

We conclude that the court followed the statutory criteria and 

sentenced Bari within the limits of the mitigated deliberate 

homicide statute, twenty years with ten suspended, and the 

enhancement statute far using a weapon, six years. The court gave 

ample justification for the sentence imposed. We hold that the 

District Court did not abuse its discretion in sentencing Bari. 

I11 

 id the District Court err when it allowed the State to 

reinstate the charge of deliberate homicide against ~ari? 

Bari argues that the State breached the plea agreement, 

causing her to withdraw her plea. However, the facts in the record 

negate her argument. 

The parties agreed that the State would recommend a thirtyyear sentence with twenty-five suspended if Bari pled guilty to 

mitigated deliberate homicide. They also agreed to argue the 

sentence for Bari's use of a weapon at the sentencing hearing. 

Bari knew that the State intended to argue for the maximum ten-year 

sentence. 

After Bari pled guilty, the State informed her that it 

expected to introduce recently discovered evidence to prove Bari's 
motive in killing Rick was to gain $106,000 in life insurance. The 

State informed ~ari that it would only use the evidence to support 

its argument for the maximum ten-year sentence for use of a weapon. 

Bari withdrew her plea. 

The State did not breach the plea agreement. Rather, Bari 

chose to withdraw her plea. The State did not withdraw its offer 

to recommend thirty years with twenty-five suspended. Instead, as 

agreed, the State only intended to use the evidence to support its 

argument for the maximum ten-year use of a weapon sentence. 

Moreover, the State was under a duty to present the court with the 

concealed facts about Bari's insurance motive. See State v. Brown 

(1981), 193 Mont. 15, 18, 629 P.2d 777, 778-79. We hold that the 

State did not violate the plea agreement. 

Next, Bari contends that double jeopardy should have barred 

the State from reinstating the charge of deliberate homicide 

against her. She argues that double jeopardy attached when the 

court accepted her initial guilty plea to mitigated deliberate 

homicide, which she later withdrew. Thus, she maintains that the 

court should have been precluded from allowing the reinstatement of 

the deliberate homicide charge. This argument lacks merit. 

This issue is moot. See Taylor v. Kincheloe (9th Cir. 1990), 

920 F.2d 599, 602. Bari was only convicted of mitigated deliberate 

homicide and, the jury, by implication, acquitted her of deliberate 

homicide. Even if Bari could challenge the deliberate homicide 

charge on double jeopardy grounds, we would not be compelled to 

overturn her conviction of mitigated deliberate homicide. See 
Tavlor, 920 F.2d at 602. 

Moreover, Bari withdrew her plea, knowing that she was 

subjecting herself to the possibility that the State would 

reinstate the deliberate homicide charge. As the United States 

Supreme Court stated, "the Double Jeopardy Clause . . . does not 

relieve a defendant from the consequences of [her] . . . voluntary 

choice.I1 U.S. v. Scott (l978), 437 U.S. 82, 99, 98 S.Ct. 2187, 

2198, 57 L.Ed.2d 65, 79. Specifically, here, Bari cannot "reject 

[the] plea bargain and then erect the shield of double jeopardy," 

Fransaw v. Lynaugh (5th Cir. 1987), 810 F.2d 518, 526, cert. 

denied, 483 U.S. 1008, 107 S.Ct. 3237, to protect herself from the 

charge of deliberate homicide. See U.S. v. Gerard (9th Cir. 1974), 

491 F.2d 1300, 1306. We hold that the District Court did not 

violate double jeopardy when it allowed the State to recharge Bari 

with deliberate homicide. 

Aff inned. 
Justice Terry N. Trieweiler dissenting. 

I dissent from the majority s conclusion that out-of -court 

statements made by Rick Losson to the effect that his wife had 

"threatened to kill him,I1 or that he was afraid "she would kill 

him," were not inadmissible hearsay statements. 

It is clear from a review of the evidence in this case that 

the statements were offered for one purpose only. That purpose was 

to prove that defendant had planned to kill Rick Losson prior to 

the date on which his death occurred. To contend, as does the 

majority, that the jury could infer from the statements that it was 

unlikely that Rick would attack defendant, flies in the face of the 

fact that he had a criminal record for abusing and beating her, and 

a history of having done so for the entire one and a half years of 

their relationship. 

Rule 801(c), M.R.Evid., reads: 

Hearsay is a statement, other than one made by the 

declarant while testifying at the trial or hearing, 

offered in evidence to prove the truth of the matter 

asserted. 

By that definition, every one of Rick's out-of-court 

statements were inadmissible hearsay. They were all made by the 

victim, who was not there to testify, nor be cross-examined. They 

were all offered to prove that defendant had either threatened to 

kill Rick, or that he honestly believed she intended to kill him. 

They were offered to disprove her denial that his death was 

premeditated. 
All the arguments about the decedent's state of mind are 

merely window dressing to excuse the admission of statements by 

someone who was not under oath and not subject to confrontation by 

defendant so that the veracity of the statements could be tested. 

Under the facts in this case, the decedent's state of mind was not 

an issue, and the out-of-court statements should not have been 

admitted. 

To admit them under the pretext that they established the 

decedent's state of mind, and then instruct the jury not to 

consider whether what he said was true, is a use of smoke and 

mirrors to avoid the Rules of Evidence. The effect of this 

decision is that the state of mind exception effectively swallows 

the hearsay rule. The District Court's instruction did not cure 

the prejudice to defendant. 

Therefore, I would reverse the judgment of the District Court 

and remand this case for retrial after excluding the inadmissible 

hearsay evidence.