State v. Ellison, DA 16-0105

• Decision Date: 16 October 2018
• Docket Number: DA 16-0105
• Citation: 2018 MT 252,393 Mont. 90,428 P.3d 826
• Parties: STATE of Montana, Plaintiff and Appellee, v. Lionel Scott ELLISON, Defendant and Appellant.
• Court: Montana Supreme Court

393 Mont. 90

428 P.3d 826

2018 MT 252

STATE of Montana, Plaintiff and Appellee,

v.Lionel Scott ELLISON, Defendant and Appellant.

DA 16-0105

Supreme Court of Montana.

Submitted on Briefs: August 29, 2018

Decided: October 16, 2018

For Appellant: Chad Wright, Appellate Defender, Danny Tenenbaum, Assistant Appellate Defender, Helena, Montana

For Appellee: Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant Attorney General, Helena, Montana, Scott D. Twito, Yellowstone County Attorney, Julie Mees, Deputy County Attorney, Billings, Montana

Justice Jim Rice delivered the Opinion of the Court.

¶1 Lionel Scott Ellison appeals his conviction of two counts of tampering with or fabricating physical evidence, and one count of impersonation of a public servant, after jury trial in the Thirteenth Judicial District Court, Yellowstone County. We affirm in part, reverse in part, and remand for further proceedings consistent with this Opinion. We restate Ellison’s issues on appeal as follows:

1. Did the District Court abuse its discretion by admitting evidence related to Ellison’s prior acts?

2. Did Ellison’s counsel render ineffective assistance by failing to object, under § 46-11-410, MCA, to Ellison’s conviction of two counts of tampering with or fabricating physical evidence?

3. Did the District Court err by imposing a "per count" surcharge for court information technology under § 3-1-317(1), MCA ?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On March 13, 2013, Ellison staged a crime scene in which he attempted to implicate Yellowstone County Detective Frank Fritz (Fritz), by tying the doors shut to the trailer home he shared with his parents, starting a small fire outside, and placing a knife on the ground outside the home with "Fritz" scribbled on it. The Fire Department was summoned and, during the investigation, Ellison reported he saw flames from his bedroom window but was unable to escape the house because the doors had been tied shut from the outside. Ellison and his parents claimed they saw someone who looked like Fritz or his "twin" in their yard on the night of the fire, and that the same man had been at their home several times before. They later made statements in the proceeding that Fritz was responsible for starting the fire at the home. At trial, Fritz and other officers testified that Fritz was investigating another crime scene elsewhere in Billings in the hours before, during, and after the fire at Ellison’s home.

¶3 After testing, the Montana State Crime Lab determined the DNA found on the ropes tied to the doors of Ellison’s home matched Ellison’s DNA. Ellison was arrested on July 31, 2014. Later, soon after Ellison was released on bond, Ellison made phone calls to two employers in which he falsely identified himself as Fritz and maintained that they should not hire Ellison.

¶4 Ellison was charged with one count of arson, two counts of tampering with or fabricating physical evidence, and one count of impersonation of a public servant. Before trial, Ellison moved in limine to exclude evidence of any other crimes, wrongs, or acts pursuant to M. R. Evid. 404(b). These prior acts raised by Ellison included investigations by the Yellowstone County Sheriff’s Office and Park County Sheriff’s Office after Ellison staged his own abductions in 2008 and 2010, a conviction for arson in 2009, a conviction for misdemeanor theft in 2010, a conviction for Partner or Family Member Assault (PFMA) in 2010, and a conviction for two counts of Violation of an Order of Protection (VOP) in 2012. Fritz had investigated the PFMA and VOP cases, leading to charges against Ellison. Following Ellison’s convictions in those cases, Ellison and his parents attempted to prosecute a civil lawsuit against Fritz and the Yellowstone County Sheriff’s Office, alleging intimidation and intentional infliction of emotional distress.

¶5 The District Court partially granted and partially denied Ellison’s motion, ruling that evidence relating to Ellison’s staged abductions in 2008 and 2010, his conviction for arson in 2009, and his conviction for theft in 2010 was not admissible; but that "evidence of Ellison’s past acts relating to Detective Fritz may properly be admitted," including the PFMA and VOP investigations, as well as evidence relating to the Ellisons' lawsuit against Fritz. The court reasoned:

Evidence that is inextricably linked to and explanatory of a fact in dispute may be admitted under the transaction rule in order to provide a comprehensive and complete picture of the commission of a crime [internal quotations and citations omitted].... By making these accusations [that Fritz started the fire], Ellison and his parents made the other evidence concerning Detective Fritz relevant to show the source of Ellison’s animosity toward Detective Fritz, as well as Ellison’s motive to concoct the crime scene. The State’s evidence relating to Detective Fritz—including his investigation of Ellison for prior convictions and the Ellisons' lawsuit against him—is thus relevant not for propensity purposes, but rather to show motive and provide context, inter alia , for the reasons behind the fire, the discovery of a knife with the word ‘Fritz’ written on it, and Ellison’s impersonation of Detective Fritz. [Emphasis added.]

¶6 At trial, the State called Fritz to testify about his prior investigations of Ellison, at which time the court gave a cautionary instruction to the jury about the proper use of evidence about other acts, stating "[t]he only purpose of admitting that evidence is to show motive and context. You may not use that evidence for any other purpose."¹ Fritz discussed an incident in which Ellison allegedly tampered with the victim in the PFMA case, explaining that Ellison "had his wife go down to the jail ... to have all of the charges dropped against him." Fritz testified both to his involvement in and the details surrounding the VOP case, stating:

The victim had alleged that the defendant was holding her—her medication that she needed as a bargaining chip for her to go to the county attorney’s office and have all of the charges dropped and to give a different story or a different version of events that had taken place during their partner family member assault case. Not only did he have the medication, but it was also alleged by the victim that he would not pay the power bill at the house that she was living in unless [she] went to the county attorney’s office.

Fritz further testified that Ellison was to meet up with his then-wife, but when he saw a patrol car coincidently parked near their meeting place, he got "spooked." In a subsequent meeting with his then-wife, Ellison refused to return her medication "unless she went and spoke with the county attorney about the partner family member assault case." Ellison’s then-wife became extremely upset, leading Fritz to seek approval for Ellison’s arrest.

¶7 After a three-day trial, the jury acquitted Ellison of arson, and convicted him of the other charges. Ellison appeals.

STANDARD OF REVIEW

¶8 This Court "review[s] evidentiary rulings for an abuse of discretion, which occurs when a district court acts arbitrarily without conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice." State v. Blaz , 2017 MT 164, ¶ 10, 388 Mont. 105, 398 P.3d 247 ; State v. Madplume , 2017 MT 40, ¶ 19, 386 Mont. 368, 390 P.3d 142. "To the extent an evidentiary ruling is based on a district court’s interpretation of the Montana Rules of Evidence," this Court’s review is de novo. Blaz , ¶ 10 ; Madplume , ¶ 19.

DISCUSSION

¶9 1. Did the District Court abuse its discretion by admitting evidence related to Ellison’s prior acts?

¶10 While conceding that Fritz involvement with Ellison’s prior charges was generally admissible under M. R. Evid. 404(b) as evidence of Ellison’s motive, Ellison challenges the State’s introduction of detailed facts underlying those cases as violative of M. R. Evid. 404(b). In answer, the State argues the evidence was properly admitted to demonstrate Ellison’s "motive, intent, plan, [and] knowledge."

¶11 "All relevant evidence is admissible, except as otherwise provided by constitution, statute, [or] these rules...." M. R. Evid. 402. The trial court has "broad discretion to determine whether evidence is relevant and admissible." State v. Berger , 1998 MT 170, ¶ 39, 290 Mont. 78, 964 P.2d 725. An item of evidence is relevant if it has any value, "as determined by logic and experience, in proving the proposition for which it is offered." Berger , ¶ 39.

¶12 Under Rule 404(b), evidence of "other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." However, such evidence may be admissible to establish "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." M. R. Evid. 404(b). This list of permissible, non-propensity purposes is not exclusive and not precise; rather, the categories are "amorphous, overlapping, and dependent upon the underlying facts." Blaz , ¶ 12. In a Rule 404(b) analysis, "the distinction between admissible and inadmissible" evidence depends "on the intended purpose of the evidence, not its substance." Blaz , ¶ 12 ; Madplume , ¶ 23 (internal quotations and citations omitted).

¶13 Motive can be defined as " ‘[s]omething ... that leads one to act.’ " Blaz , ¶ 14 (quoting Black’s Law Dictionary 1172 (Bryan A. Garner ed., 10 ed. 2014) ). Fritz' prior investigations of Ellison for PFMA and VOP logically can be explained as the motive for Ellison to tie ropes to the doors of his parents' home, place a knife with the name "Fritz" in the yard, light the house on fire, and call two employers impersonating Fritz. Without Fritz' investigations of Ellison for the PFMA and VOP, Ellison may not have been arrested and charged for those previous crimes. Thus, Ellison had a viable motive to retaliate by concocting a crime scene in an attempt to...