STATE v HEINE
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No. 12979 I N THE SUPREME COURT OF THE STATE OF M N A A OTN 1975 THE STATE O MONTANA, F P l a i n t i f f and Respondent, -VS - ARTHUR HEINE, Defendant and A p p e l l a n t . Appeal from: D i s t r i c t Court o f t h e T h i r t e e n t h J u d i c i a l D i s t r i c t , Honorable C h a r l e s Luedke, Judge p r e s i d i n g . Counsel o f Record : For A p p e l l a n t : John L. Adams, Jr, argued, B i l l i n g s , Montana F o r Respondent: Hon. Robert L Woodahl, A t t o r n e y General, Helena, . Montana C h a r l e s E, Erdman, A s s i s t a n t A t t o r n e y G e n e r a l , a r g u e d , Helena, Montana Harold F. Hanser, County A t t o r n e y , argued, B i l l i n g s , Montana Submitted: Decided : November 7 , 1975 ..E..p. Mr. Justice John Conway Harrison delivered the Opinion of the Court. Arthur Heine was convicted by a Yellowstone County jury of "driving a vehicle while under the influence of intoxicating liquor," section 32-2142, R.C.M. 1947, and of "aggravated assault," section 94-5-202, R.C.M. He was specifically accused by Informa- tion of deliberately causing a head-on collision with another vehicle in which his ex-wife, son, daughter-in-law, and three week old grandchild were riding. At trial, defendant attempted to convince the jury the collision was only an accident, and that his intoxicated condition obviated any possibility the act was committed with any degree of deliberateness. In response to this contention, the prosecuting attorney offered evidence which tended to refute defendant's claim. Over his objection, defendant's ex-wife was allowed to testify concerning several events, all taking place within three years of the assault for which he has been convicted. This testimony es- tablished that defendant once tried to ram his ex-wife's car broadside with his own; that he had twice driven his car through her garage door without first bothering to open it; and, that he once successfully attacked and stabbed her with a knife. Additionally, several character witnesses were called to testify in defendant's behalf, concerning his reputation for peace and quiet in the community. The prosecuting attorney was then allowed to cross-examine these witnesses through the introduction of defendant's police record dating back to 1948. This record contained references to a number of prior arrests on charges ranging from disorderly conduct to destruction of property. On appeal, it is first contended the district court erred in admitting evidence of other offenses, and specifically the assault committed by defendant upon his ex-wife. It is the rule that evidence of other offenses or similar acts p e r p e t r a t e d a t o t h e r t i m e s are inadmissible f o r t h e purpose of showing t h e commission of t h e p a r t i c u l a r crime c h a r g e d . S t a t e v . T a y l o r , 163 Mont. 1 0 6 , 1 2 1 , 515 P.2d 695. a well-established However, under e x c e p t i o n , such e v i d e n c e i s n o t e x c l u d e d when o f f e r e d t o prove t h a t t h e a c t c h a r g e d w a s n o t t h e r e s u l t of a c c i dent o r inadvertence, i f t h a t matter i s a t i s s u e i n t h e t r i a l . S t a t e v . Newman, 34 Mont. 434, 4 4 0 , 87 P. 462; S t a t e v . C a s s i l l , 70 Mont. 433, 227 P . 49; S t a t e v . Hughes, 76 Mont. 421, 246 P.2d 959; S t a t e v . Simanton, 1 0 0 Mont. 292, 49 P.2d 981. I n S t a t e v . J e n s e n , 153 Mont. 233, 455 P.2d 631, t h i s C o u r t e s t a b l i s h e d t h r e e c r i t e r i a which d e t e r m i n e e x a c t l y what t y p e of e v i d e n c e c a n be l a w f u l l y a d m i t t e d under t h i s e x c e p t i o n . Thus e v i d e n c e of p r i o r o f f e n s e s o r a c t s i s a d m i s s i b l e i f s u c h p r i o r o f f e n s e s a r e i n some d e g r e e s i m i l a r t o t h e a c t s c h a r g e d , a r e n o t t o o remote i n t i m e , and t e n d t o e s t a b l i s h a common scheme, p l a n o r system. W e apply t h i s t e s t t o t h e r u l i n g of t h e d i s t r i c t c o u r t and f i n d no e r r o r . C e r t a i n l y a l l t h e p r i o r a c t s and o f f e n s e s t e s t i f i e d t o w e r e i n t h e n a t u r e o f , o r s i m i l a r t o , a s s a u l t s on d e f e n d a n t ' s ex-wife. They a l l t o o k p l a c e w i t h i n t h r e e y e a r s of t h e crime c h a r g e d which, under o u r h o l d i n g i n J e n s e n , i s n o t t o o remote. Defendant h i m s e l f p l a c e d t h e matter i n i s s u e t h r o u g h h i s a t t e m p t s t o show t h a t t h e e v e n t was m e r e l y a n a c c i d e n t . W note e t h e c a u t i o n a r y I n s t r u c t i o n No. 18 g i v e n by t h e t r i a l judge: "You a r e i n s t r u c t e d t h a t e v i d e n c e o f o t h e r o f f e n s e s i s t o be viewed by you w i t h c a u t i o n and t h a t such evidence i s admitted f o r t h e s o l e purpose of perm i t t i n g you t o d e t e r m i n e whether t h e acts alleged a s c o n s t i t u t i n g a g g r a v a t e d a s s a u l t were done p u r p o s e l y o r knowingly r a t h e r t h a n t h r o u g h m i s t a k e o r a c c i d e n t . " The a d m i s s i o n of t h i s t e s t i m o n y was w i t h i n t h e r e c o g n i z e d except i o n , and p r o v i d e s no grounds f o r r e v e r s a l . Second, d e f e n d a n t c l a i m s t h e d i s t r i c t c o u r t e r r e d by r e c e i v i n g e v i d e n c e of c e r t a i n s p e c i f i c a c t s and p r i o r a r r e s t s as shown by his police record which was ultimately admitted as an exhibit. This testimony was introduced by the prosecutor for the purpose of impeaching defendant's character witnesses on cross-examination. When the accused calls a witness to support his generally good reputation in the community, he opens the door to all legitimate cross-examination of that witness and must therefore accept the consequences which result. State v. Moorman, 133 Mont. 148, 153, 321 P.2d 236; State v. Cor, 144 Mont. 323, 396 P.2d 86, State v. Turley, 164 Mont. 231, 521 P.2d 690. The purpose of this rule was well stated by Chief Justice Brantly in State v. Jones, 48 Mont. 505, 516, 139 P. 441: "As the favorable testimony tends to sustain the presumption of innocence which the law indulges in favor of the defendant, by introducing it the defendant tenders an issue of fact, viz., whether his reputation is such as the witnesses say it is, and the prosecution has the right to cross-examine the witnesses to ascertain the sufficiency of the grounds upon which they base their statements." We note that here the impeachment data introduced dated back to 1948, some twenty-five years prior to the charges upon which defendant was ultimately convicted. the potential for prejudice becomes factors are shown to exist. In such a situation great unless some mitigating As this Court stated in State v. Sedlacek, 74 Mont. 201, 214, 239 P. 1002, the accused's entire life should not be searched in an effort to convict him. However, we are satisfied that defendant suffered no prejudice under these circumstances, where the majority of the offenses introduced for impeachment purposes were not remote. The prosecution had a legal right to determine by cross-examination whether the testimony of defendant's character witnesses had any foundation in fact, and we find that right to have been properly exercised. Defendant's final allegation of error involves a challenge to the jurisdiction of the district court regarding the charge of "driving a vehicle while under the influence of intoxicating liquor". Upon conviction for this offense, defendant was sentenced to an additional year in the state penitentiary, to run concurrently with his fifteen year sentence for the assault charge. Generally, Montana's district courts have jurisdiction over all criminal cases amounting to a felony and in all cases of misdemeanor not otherwise provided fort.ArticleVII, Section 4, 1972 Montana Constitution; Section 93-318, R.C.M. 1947. Under 1947 section 95-302, R.C.M./, justice courts may assume jurisdiction over all misdemeanors punishable, inter alia, by a term of imprisonment not exceeding six months. The justice courts normally handle the bulk of cases involving driving while intoxicated offenses. But when an individaul is convicted on such a charge for the third time, the maximum sentence may be increased to the term of one year, and the district courts become vested with jurisdiction over the matter. Section 32-2142(d), R.C.M. 1947. Defendant seems to ground his jurisdictional challenge on the premise that evidence of the prior driving while intoxicated convictions was inadmissible since there was no showing that defendant was represented by counsel when he pled guilty to them. This specific argument was not presented to the district court on the motion to dismiss and it cannot be raised here for the first time on appeal. State v. Wilson, 160 Mont. 473, 477, 503 P.2d 522; State v. White, 153 Mont. 193, 197, 456 P.2d 54; State v. Campbell, 146 Mont. 251, 267, 405 P.2d 978. Judgment of the district court is affirmed. (weconcur: $. < ., . Chief J u s t i c e .............................. Justice J u s t i c e Gene B. Daly and M r . J u s t i c e Frank I . Haswell dissenting: Mr. W e dissent. The m a j o r i t y o p i n i o n m i s c o n s t r u e s and m i s a p p l i e s t h e d o c t r i n e which p e r m i t s proof of a s t a t e o f f a c t s t e n d i n g t o show a uniform c o u r s e o f a c t i o n r e c e n t l y pursued--a system o r p l a n on t h e p a r t o f t h e a c c u s e d , f o r t h e p u r p o s e of showing g u i l t y knowledge o r c r i m i n a l i n t e n t , and t o n e g a t e t h e i d e a t h a t t h e p a r t i c u l a r a c t w i t h r e s p e c t t o which t h e a c c u s e d i s c h a r g e d w a s t h e r e s u l t of accident, mistake o r inadvertence. There a r e no a u t h o r i t i e s c i t e d t h a t s u s t a i n t h e a d m i s s i o n of evidence of p r i o r o f f e n s e s , a l l e g e d o f f e n s e s , etc. over a period o f 2 5 y e a r s t o c o n v i c t t h e d e f e n d a n t o f " a g g r a v a t e d a s s a u l t " res u l t i n g from a n a u t o m o b i l e c o l l i s i o n w h i l e i n t o x i c a t e d . The e v i - d e n c e w a s a r e v i e w o f t h e d e f e n d a n t ' s m a r i t a l problems which ended i n divorce t h r e e years before t h e a l l e g e d c r i m e involved here. The p a r t i e s had n o t had any c o n t a c t f o r t h r e e y e a r s p r i o r t o t h e a c t i o n here. The c l a s s o f c a s e s t o which t h e r u l e may be a p p l i e d a r e g e n e r a l l y t h o s e c i t e d by t h e m a j o r i t y . Newman, a f o r g e r y c a s e with evidence taken of s i m i l a r conduct very r e c e n t . Cassill, f a l s e s t a t e m e n t s t o bank s u p e r i n t e n d e n t and by banker c o n c e r n i n g f i n a n c i a l c o n d i t i o n o f t h e bank, e v i d e n c e t a k e n of s i m i l a r cond u c t f o r t h e same y e a r . Hughes, b r a n d i n g a n i m a l s n o t property of defendant and evidence taken of others branded about same time. Simanton, recognized the rule but reversed in horse stealing case, because the state failed to prove prima facie guilt of the other acts related, however close in time. The case of State v. Jensen, 153 Mont. 233, 455 P.2d 631, quoted as principal authority by the majority is a sex case and should be distinguished. There is good law from respectable jurisdictions that clearly explains the additional latitude allowed in sex cases because of the continuing state of mind of a defendant so afflicted. The Montana rule and correct application can be found in a discussion by Justice Angstman in State v. Knox, 119 Mont. 449, 175 P.2d 774, and again in State v. Merritt, 138 Mont. 546, 357 P.2d 683. The case should be remanded for a new trial on the merits. Justices Mr. J u s t i c e Wesley C a s t l e s s p e c i a l l y c o n c u r r i n g : I concur i n t h e o p i n i o n o f J u s t i c e John Conway H a r r i s o n . I do choose t o respond b r i e f l y t o t h e d i s s e n t i n g o p i n i o n . There it i s s t a t e d t h a t , "The p a r t i e s had n o t had any c o n t a c t f o r t h r e e years p r i o r t o t h e action here." so. This i s simply n o t The f a c t s r e c i t e d i n t h e m a j o r i t y o p i n i o n a r e c o r r e c t . Between J u n e o f 1971 and J u n e of 1972, t h e d e f e n d a n t c r a s h e d h i s c a r t h r o u g h h i s e x - w i f e ' s g a r a g e d o o r s on two o c c a s i o n s and on a n o t h e r o c c a s i o n a s s a u l t e d h e r w i t h a k n i f e a t t h e o f f i c e where s h e worked. These i n c i d e n t s were t e s t i f i e d t o t o show t h e know- i n g p u r p o s e o f d e f e n d a n t and t o n e g a t e m i s t a k e and a c c i d e n t , and t h e j u r y w a s i n s t r u c t e d a s t o t h i s . Also t h e e v i d e n c e showed t h a t even a f t e r t h e d i v o r c e i n 1971 d e f e n d a n t l i v e d a t h i s e x - w i f e ' s home u n t i l J u n e , 1972. S e p a r a t e from t h e s e a c t s , t h e m a t t e r o f t h e d e f e n d a n t ' s c h a r a c t e r and r e p u t a t i o n f o r p e a c e and q u i e t i n t h e community was b r o u g h t on by d e f e n d a n t ' s c h a r a c t e r w i t n e s s e s . on c r o s s - e x a m i n a t i o n This i s proper. I t was o n l y t h a t i n q u i r y was made i n t o t h e p a s t e v e n t s . See S t a t e v . Simtob, 1286, and c a s e s c i t e d t h e r e i n . (Mont. 1 9 7 5 ) , 32 S t - R e p .
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