State v. Gray
| Decision Date | 05 April 1982 |
| Docket Number | No. 81-435,81-435 |
| Court | Montana Supreme Court |
| Parties | STATE of Montana, Plaintiff and Respondent, v. James E. GRAY, Defendant and Appellant. |
John E. Riddiough, Timothy D. Geiszler, Missoula, for defendant and appellant.
Mike Greely, Atty. Gen., Helena, Robert E. Brown, County Atty., Hamilton, for plaintiff and respondent.
Defendant James E. Gray (Gray) was found guilty of criminal mischief with the purpose to defraud an insurer by a jury in the Fourth Judicial District of Montana, Ravalli County. Gray appeals his conviction. We remand for a new trial.
Gray raised several issues on appeal. The following issue is determinative:
Whether it was an error for the District Court to admit evidence of the second incident of criminal mischief.
On August 28, 1980, Gray reported that while driving his 1980 Chevrolet pickup truck east on the Skalkaho Road, he was involved in an accident. In his report to the Highway Patrol, he indicated that he was crowded off the road by a westbound vehicle pulling a horse trailer. He reported that his vehicle went down the embankment and that he stayed in the vehicle and then climbed back up to the road.
Steven Forsman and Lela Gray, daughter of the defendant, followed him along the Skalkaho Road in a separate vehicle. During the trial, Forsman testified that he was aware of Gray's plan to damage the vehicle, that Gray turned the vehicle toward the edge of the road and then jumped out at the top of the embankment and that then Forsman and Gray walked down the embankment to observe the damage. When they returned to the road, they encountered two loggers who contacted the police. Forsman testified that while he was driving Gray back to Hamilton, Gray told him to tell the police that a brown flatbed pulling a horse trailer was coming down the road and forced him off the road. Forsman testified that the horse trailer story was fictitious and that there had been no vehicle which had forced the truck driven by Gray off the road.
Following the accident, Gray placed a claim with his insurance company for insurance benefits resulting from the accident.
After its examination of the truck following its going over the embankment, the insurance company concluded that the truck properly could be repaired. The truck then was taken to a Hamilton auto shop for repair. On September 2, while the truck was at the auto shop, Terry Atkins beat on the truck with a crowbar and slashed the seats and caused other damage, as a result of which the truck was nonrepairable or "totaled." Initially, Terry Atkins in a written statement taken by the Ravalli County Sheriff's Department, indicated that he had vandalized at the instruction of Gray on September 2, 1980, five days after the original damage. That evidence was presented to the jury. During the trial, Atkins testified that he decided to vandalize the truck on his own in order to get even with the repair shop which had done unsatisfactory work for him.
The information shows that Gray was charged with criminal mischief in the following wording:
"On or about the 28th day of August, 1980, in Ravalli County, Montana, the Defendant, James E. Gray, purposely or knowingly damaged or destroyed property, to-wit: 1980 Chevrolet pickup truck, with the purpose to defraud an insurer, by driving the vehicle over an embankment, causing damage in excess of $150.00,..."
Gray argues that it was improper to allow evidence concerning the vandalism of the truck because the State did not give notice requirements as required in State v. Just (1979), Mont., 602 P.2d 957, 36 St.Rep. 1649. The Information and Affidavit for Leave to File Information made no reference to any act of criminal mischief other than the incident on August 28, 1980. Gray argues that the vandalism of the truck on September 2, 1980, is "other crimes" evidence because it was an act separate and apart from the alleged act of criminal mischief charged in the information, that the State failed to give him notice, and that the court failed to admonish and instruct the jury as required by Just.
The State contends that it is not other crimes evidence, but part of the continuing transaction of criminal mischief so meeting the requirements in Just is not necessary.
In State v. Trombley (1980), Mont., 620 P.2d 367, 37 St.Rep. 1871, the defendant stole a truck. In proving that he stole the truck, the State brought forth evidence that he tried to use credit cards of the truck owner that were in the truck at the time of the theft. This Court in allowing evidence of the credit cards without the procedures in Just being followed stated: "In our opinion affirming the District Court's admission of this evidence, we recognized the distinction between 'other crimes' evidence and evidence of defendant's simultaneous misconduct inseparably related to the alleged criminal act." Trombley, 620 P.2d at 368, 37 St.Rep. at 1872.
Gray attempted to damage or destroy the truck for the purpose of defrauding the insurer when he drove the truck off of the road on August 28, 1980. After...
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