STATE v. DISTRICT COURT OF THE EIGHTEENTH JUDICIAL DISTRICT

tate v. Sage, 2010 MT 156, 357 Mont. 99, 235 P.3d 1284. Further clarification is not necessary to resolve the question of admissibility in the present case because we are only addressing the specific objections Anderson has raised to the evidence in dispute. Those objections are:

1. There is insufficient proof to establish that the uncharged acts occurred.

2. The evidence does not meet the similarity and remoteness criteria of the Modified Just Rule.

3. The evidence is being offered for an improper propensity purpose.

4. The evidence is unfairly prejudicial, would confuse the issues, or would be unnecessarily cumulative (relative to its probative value).

We address these points in turn.

1. Insufficient Proof

¶ 55 Anderson contends that the State should have to prove allegations of other crimes, wrongs, or acts by at least a preponderance of the evidence, and she asserts that the State has not met that burden here. This is an important question — one that we left unresolved in State v. Link, 1999 MT 4, ¶ 24 n. 2, 293 Mont. 23, 974 P.2d 1124. However, in light of Anderson's subsequent arguments, we again decline to address the question as to what quantum of proof is sufficient for admitting other-acts evidence. Anderson argues that the prosecutor's proof is insufficient because the persons who witnessed the alleged abuse of Sister and Vanyel are all friendly with each other and no longer friendly with Anderson (the implication being that they are biased against Anderson) and because social workers investigated the reports of abuse and deemed them "inconclusive," "unfounded," or "unsubstantiated." These issues, however, go to the weight of the evidence. Anderson is certainly free at trial to cross-examine the witnesses and attempt to discredit their testimony, and she may also present evidence to refute the prosecutor's allegations that the abuse occurred. But the evidence is not inadmissible just because Anderson believes the witnesses are not credible.

2. Similarity and Remoteness

¶ 56 Next, Anderson contends that some of the State's evidence does not meet the Modified Just Rule's similarity and remoteness criteria. The Modified Just Rule, however, is no longer the correct analytical approach. Rather, when presented with a claim that evidence is being offered for an impermissible propensity inference, the court should simply apply Rules 402 and 404 (and, if requested, Rules 403 and 105). There is no requirement in Rule 404(b) that all uncharged acts must be "similar" and "near in time" to the charged act. Rather, these criteria are holdovers from our pre-Rule 404(b) jurisprudence and are not necessarily applicable to every nonpropensity theory of logical relevance. These points were explained in ¶¶ 95-101 of the Stout dissent and need not be detailed again here. Suffice it to say that the prosecutor's theory of logical relevance may require that the uncharged act be similar to the charged act — e.g., if offered to identify the defendant by showing that she committed the uncharged act with a modus operandi strikingly similar to that of the charged act — but this will not always be the case. And the same is true about remoteness, which is an issue that bears more on the probative value of the evidence and, thus, should be considered in a Rule 403 analysis. In short, "similarity" and "nearness in time" are no longer prerequisites for the admission of all "other crimes, wrongs, or acts" evidence. Rather, when a defendant raises a Rule 404(b) objection, the trial court should carefully analyze whether the evidence in question is relevant for a purpose that does not involve drawing an impermissible inference of action in conformity with character. If it is, then Rule 404(b) does not require its exclusion.

3. Impermissible Purpose

¶ 57 Anderson contends that the State's evidence is being offered only to show that she acted in conformity with a bad character, which Rule 404 prohibits. The prosecutor's Amended Just Notice is the most recent listing of the evidence he seeks to introduce. During the District Court hearing, he struck paragraph 2, and the State also has indicated that it does not seek to admit the evidence in paragraph 9. Thus, we will address only the evidence listed in the remaining paragraphs of the notice. For ease of discussion, we analyze the evidence in seven separate categories, designated (a) through (g) below.

¶ 58 (a) In the first category, the prosecutor intends to introduce testimony regarding Anderson's lack of attention and personal contact with Vanyel following Vanyel's birth, her statement that she was "pissed off" because "[i]t's a girl, and I really wanted a boy," and the fact that she once yelled at Vanyel to "shut the fuck up." He also intends to introduce testimony about the following alleged instances of abuse: in November 2007, Anderson slammed Vanyel's head into the floor in anger; on another date, she slammed Vanyel's head off the floor when Vanyel wouldn't eat; and on still another occasion, she became angry and bounced Vanyel's head off the floor while changing her diaper. The prosecutor argued that this evidence is admissible to show: motive (that Anderson was frustrated and angry and did not want Vanyel, and thus had a motive to cause her death), identity (that it was Anderson, and not Sister or Jeff, who caused Vanyel's death), intent (that Anderson acted purposely or knowingly), and absence of mistake or accident (that Vanyel's death was the result of a purposeful act and not an accident). Anderson argues that these purposes are inapplicable for four reasons.

¶ 59 First, she cites our decision in State v. Sweeney, 2000 MT 74, 299 Mont. 111, 999 P.2d 296, where we observed that "for evidence of prior crimes to be admissible to show motive or intent, `the commission of the first crime or act should give rise to a motive or reason for the defendant to commit the second crime.'" Sweeney, ¶ 25 (quoting State v. Weldy, 273 Mont. 68, 75, 902 P.2d 1, 5 (1995)); accord State v. Sadowski, 247 Mont. 63, 72, 805 P.2d 537, 542 (1991). Anderson argues that it would be "nonsensical" to suggest that she wanted to harm Vanyel because of the alleged prior abuse. Yet, while this may be true, our statement of the law in Sweeney, Weldy, and Sadowski is incomplete, and thus is hereby clarified. In some cases, the uncharged act will indeed furnish the motive for the charged act. For instance, an uncharged theft may supply the motive to murder an eyewitness to the theft. See Imwinkelried, Uncharged Misconduct Evidence at § 3:16, 81. In this situation, the uncharged act is cause, and the charged act is effect. Id. at § 3:18, 101. In other cases, however, the uncharged act evidences the existence of a motive but does not supply the motive. Rather, the motive is cause, and the charged and uncharged acts are effects; that is, both acts are explainable as a result of the same motive. The prosecutor uses the uncharged act to show the existence of the motive, and the motive in turn strengthens the inference of the defendant's identity as the perpetrator of the charged act. Id. That is precisely what the prosecutor seeks to do here.

Professor Imwinkelried provides the following illustration: "[S]uppose that the defendant previously assaulted the victim. The assault tends to show the defendant's hostile feelings toward the victim. The defendant is subsequently charged with arson of the victim's property. The preexisting hostile feelings could serve as the motive for the arson. . . . Although most of the published opinions involve the motive to commit a violent crime, the preexisting hostility may furnish the motive for any type of crime which injures the victim in some way." Id. at § 3:18, 101 (footnotes omitted).

¶ 60 Second, Anderson cites Sweeney, ¶ 31, for the proposition that the charged and uncharged acts must be uniquely similar when proving identity. This is true where the prosecutor's theory of logical relevance is modus operandi — a point we made in another decision cited by Anderson: State v. Kordonowy, 251 Mont. 44, 49, 823 P.2d 854, 857 (1991) ("This identity exception is often used `[t]o prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused.'" (brackets in Kordonowy) (citing McCormick on Evidence 449 (2d ed. 1972))). See also Imwinkelried, Uncharged Misconduct Evidence at § 2:13, 77 (uncharged misconduct evidence may be used "to identify the defendant by showing that the defendant committed an uncharged act with a modus operandi strikingly similar to that of the charged act"); id. at § 3:10, 47-48. But this is not true for all theories. For instance, a dissimilar act showing consciousness of guilt — e.g., attempting to bribe the jurors in her trial — can be evidence that the defendant is the perpetrator of the charged act of murder. See id. at § 3:04, 9-11 (citing additional examples). Likewise, here, Anderson's prior abuse of Vanyel, in conjunction with her other conduct and statements reflecting that she resented and did not want Vanyel, show that she had a motive to cause Vanyel's death, which strengthens the inference that she is the perpetrator of the charged homicide.

¶ 61 Third, Anderson contends that the "absence of mistake or accident" purpose is "premised on the notion that a person who repeatedly engages in the same act over and over is more likely to possess intent if they claim they engaged in the act inadvertently, and also to show that the person is more likely to know the consequences of the act." We agree that these are two theories for introducing evidence of uncharged acts to show that the charged act was not due to mistake or accident; however, Anderson cites no authority that these are the only theories. Moreover, she argues that since she has never admitted to suffocating Vanyel, the State does not need to refute a claim that the lethal act was inadvertent. But, as the State points out, Anderson in fact did suggest to authorities that Vanyel's death was accidental, and we agree with the State that the prosecutor may introduce evidence of her prior mistreatment of Vanyel in order to rebut this implication.

¶ 62 Lastly, in arguing that the evidence is highly probative of Anderson's mental state, the prosecutor quoted from two pattern jury instructions (Montana Crim. Jury Instr. 2-108 and 1-017(b)) which together stand for the principle that a defendant's mental state, including her purpose and knowledge, ordinarily may not be proved directly, but may be inferred from what the defendant does and says and from all other facts in evidence that are indicative of her state of mind. Anderson counters that the propensity inference of the evidence "predominates" over the intent inference. However, even assuming, for the sake of argument, that this is true, Rule 404 does not bar evidence because a propensity inference "predominates." Rather, it simply prohibits using the evidence for that purpose (i.e., to show action in conformity with character), and Rule 105 provides the mechanism through which the jury can be so instructed. Anderson's "predominates" argument is more appropriately considered in the context of a Rule 403 analysis.

¶ 63 In sum, Rule 404 does not require exclusion of this category of evidence.

¶ 64 (b) Next, the prosecutor plans to introduce testimony that in March 2006, when Sister was three months old, Anderson was instructed not to have extra blankets in her bed that could get in the way of her breathing and not to place Sister on her stomach due to breathing problems that could occur. The prosecutor also plans to introduce testimony that Anderson was advised against wrapping Sister so tightly that she could not breathe. He proposes to use this evidence to show that Anderson had specific knowledge about the risk of suffocation and how to avoid it, and also to demonstrate absence of mistake or accident. As an initial matter, the prosecutor argues that the evidence does not consist of "acts" by Anderson and that Rule 404(b), therefore, does not apply. To the extent the evidence shows only that Anderson was the recipient of advice on a particular subject, we agree that it is not evidence of an "act" by her. However, one could infer from this evidence that Anderson was mistreating Sister — e.g., by wrapping her so tightly that she could not breathe — thus prompting the advice Anderson was given. Also, Rule 404(a) states that "[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion" (except in limited circumstances not applicable here), and this restriction applies to any evidence of character or a trait of character. Yet, the fact that Anderson was told not to do certain things which could result in suffocation, and any implicit suggestion that she was given this advice because she had been mistreating Sister, are not being offered to prove action in conformity with a bad character. Rather, this evidence is being offered to show Anderson's knowledge that special care needs to be given to a child to avoid suffocation and to establish absence of mistake or accident. It thus is not excluded by Rule 404.

¶ 65 (c) The prosecutor intends to introduce testimony about specific instances in which Anderson allegedly abused Sister, "including but not limited to" an incident in May 2006 in which she placed Sister face down in her crib with a blanket rolled up and tied to each side of the crib and the blanket placed on Sister's neck. The prosecutor asserted that while this evidence might not be "transactional" under Lacey, Rule 404 does not require its exclusion. See ¶ 24, supra. Initially, we note that because the prosecutor has described the circumstances of only one of the incidents of abuse involving Sister, we cannot determine whether the other incidents are inadmissible under Rule 404. The prosecutor will need to provide a more detailed explanation of those incidents on remand, and the District Court will have to conduct an analysis based on any objections Anderson raises. But with respect to the incident just described, the prosecutor argued (and we agree) that this evidence is admissible to show that Vanyel did not die accidentally. The fact that Anderson would place Sister face down in her crib with the blanket as described, despite having been warned about the risks of suffocation, is relevant to her intent and to rebut the suggestion that Vanyel's death was accidental.

¶ 66 (d) The prosecutor also intends to introduce testimony that Anderson was observed on different occasions wrapping Vanyel up in a blanket so tightly that Vanyel either had difficulty breathing or could not breathe. This evidence is being offered to show motive, identity, intent, and absence of mistake or accident. For the reasons already discussed, we agree that these are legitimate purposes for the evidence. In addition, this evidence is also relevant to causation — i.e., to show that Vanyel's death was caused by being wrapped so tightly that she ultimately was suffocated.

¶ 67 (e) The next category consists of Dr. Kemp's findings and opinions based on his postmortem examination of Vanyel, including testimony about the various injuries he observed. This evidence goes directly to the issue of the cause of Vanyel's death and is admissible for this purpose. We also agree with the State that the evidence is relevant to identity, intent, and absence of mistake or accident.

¶ 68 (f) The prosecutor proposes to elicit testimony that when Anderson would become upset with things in her life such as "boyfriend" issues, she would take it out on her kids. This evidence, however, appears to involve an inference of conduct in conformity with a trait of character. The prosecutor has identified no use of this evidence that would not require such an inference. As such, it is barred by Rule 404(a).

¶ 69 (g) Lastly, the prosecutor also proposes to elicit testimony regarding Anderson's relationship with Matt (Vanyel's father). As Anderson points out, however, it is not clear what exactly this testimony would consist of. The prosecutor will need to provide a more detailed explanation of the testimony on remand, and the District Court will have to conduct an analysis based on any objections Anderson raises.

4. Rule 403

¶ 70 Anderson asserts that the foregoing evidence is unfairly prejudicial, would confuse the issues, or would be unnecessarily cumulative (relative to its probative value) and thus should be excluded under Rule 403, which states: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." At this point, however, we are not persuaded that any of the evidence should be excluded on these grounds. It is all highly probative of identity, causation, and intent. We recognize, though, that developments at trial may warrant a reexamination of this issue. Thus, Anderson is free at that time to renew her Rule 403 objection. She also may request a limiting instruction under Rule 105.

CONCLUSION

¶ 71 In sum, Just and Matt are overruled, and we adopt in their place the procedures outlined above in ¶ 49. Anderson received notice of the evidence now in dispute, and she has raised objections to that evidence. None of the evidence reviewed above is excluded by Rule 404, except the evidence described in ¶ 68. The prosecutor will need to provide more specific disclosure of the evidence discussed in ¶¶ 65 and 69 before it can be analyzed. Finally, none of the evidence should be excluded at this time under Rule 403, but Anderson may renew her Rule 403 objection at trial.

¶ 72 We close with a word of caution. Our new approach is grounded in the Montana Rules of Evidence and applicable statutes. Accordingly, it will be incumbent on defense counsel to carefully scrutinize the charging documents and the prosecution's discovery disclosures and to make specific, legally supported objections, motions in limine, or requests for cautionary or curative jury instructions — which are, similarly, grounded in the Rules of Evidence and applicable statutes. It follows that it will be incumbent on the prosecutor to apprise the defendant fully, fairly, and accurately of all evidence which the State may offer at trial in its case-in-chief. It will remain for the trial judge to determine what evidence is admissible, and for what purposes, based on the objections, motions, and arguments made and to provide this Court with a sufficient rationale for appellate review of its decision.

¶ 73 Based on the foregoing,

¶ 74 IT IS ORDERED that the Petition for a Writ of Supervisory Control is GRANTED.

¶ 75 IT IS FURTHER ORDERED that the District Court's April 2, 2010 Decision and Order Re: Defendant's Motion to Strike Amended Just Notice and Objections to State's Just Notice is reversed.

¶ 76 IT IS FURTHER ORDERED that this case is remanded to the District Court for further proceedings consistent with this Opinion and Order.

¶ 77 The Clerk of this Court is directed to give notice of this Opinion and Order to counsel of record and to the Honorable Mike Salvagni, District Court Judge, presiding.

JUSTICES MIKE McGRATH, W. WILLIAM LEAPHART, PATRICIA COTTER, MICHAEL E WHEAT, JIM RICE and BRIAN MORRIS concur.