State v. Lake, DA 19-0648

Docket NºDA 19-0648
Citation2022 MT 28
Case DateFebruary 08, 2022
CourtUnited States State Supreme Court of Montana

2022 MT 28

STATE OF MONTANA, Plaintiff and Appellee,

ANDREW PIERCE LAKE, Defendant and Appellant.

No. DA 19-0648

Supreme Court of Montana

February 8, 2022

Submitted on Briefs: August 11, 2021

APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. BDC 17-135 Honorable Michael F. McMahon, Presiding Judge

For Appellant: Nick K. Brooke, Smith & Stephens, P.C., Missoula, Montana

For Appellee: Austin Knudsen, Montana Attorney General, C. Mark Fowler, Assistant Attorney General, Helena, Montana Leo Gallagher, Lewis and Clark County Attorney, Helena, Montana



¶1 Andrew Pierce Lake (Lake) appeals his September 2019 judgment of conviction in the Montana First Judicial District Court, Lewis and Clark County, on the offense of attempted deliberate homicide. We address the following restated issue:

Whether the District Court erroneously allowed the State to reference and elicit testimony regarding Lake's prior child sex abuse comments and references in an explicit and repetitive manner that was unfairly prejudicial?

Reversed and remanded.


¶2 Late in the evening and into the early morning hours of March 15-16, 2017, Lake and Ryan Zitnik (Zitnik) were among a number of regulars at The Jesters Bar (Jesters) in Helena, Montana. They had previously known each other from the bar for several years.

1. Stabbing Attack on Zitnik and Subsequent Arrest of Lake.

¶3 At approximately 1:30 a.m., the two men became involved in a brief altercation near one end of the bar. Accounts differ as to who instigated it and the extent of their physical contact. Lake testified at trial that, while walking down the bar in anticipation of "last call," he passed behind Zitnik who was standing at the bar and who "stuck his butt out and bumped [him] really hard." He testified that he said "[e]xcuse me" to Zitnik and was walking away when he heard Zitnik "yell[] something at [him]." Lake said that, upon hearing someone else say, "he ain't worth it," he agreed and told Zitnik, "[y]ou hear that Ryan[, ] [y]ou are not worth it," and then "walked out [of] the bar." Zitnik testified at trial


that he could not remember the details of the "light confrontation in the bar" or how it started.

¶4 Kevin Cravens (Cravens), another bar regular and an acquaintance of both men, testified that he saw Lake walk "through from the back side of the bar and start[] exchanging some words," i.e., "start[] the shit-talk," with Zitnik. He said he heard Zitnik respond that he "wasn't even to the bottom of his drink yet and that [Lake] wasn't worth his time." Cravens said that Lake replied that Zitnik was, however, "at the bottom of life," and that Lake then shoved Zitnik in the chest with the palm of his hand before leaving the bar, rambling about and pointing at Zitnik.

¶5 Jesters bartender John Shook (Bartender) testified that he saw Lake do "something to [Zitnik] to get his attention as he walked by," which then set off a brief round of the "standard kind of shit-talking" that often occurred between the two of them. Lake's account at trial varied somewhat, but he testified that the Bartender's account was "[f]airly accurate." The Bartender testified that he "did not think anything would come of" the exchange in the bar. Cravens similarly testified that it was not the "sort of a scene" that appeared likely to result "in a fistfight." The Bartender testified that Zitnik left "a couple minutes" after Lake, and then Cravens left "a minute or so" later.

¶6 Lake testified that, while walking across the street outside the bar, he heard the door open behind him and Zitnik angrily "yelling[, ] . . . Andy come here." Lake asserted that he "kept on walking" down the street, but that Zitnik "kept . . . getting closer to [him]" and that, as he continued down the street, he told Zitnik, "leave me alone." He testified that


Zitnik was undeterred, however, and kept saying, "[c]ome here," as he continued to get closer. Lake asserted that he kept walking away, but said, "I am warning you . . . [l]eave me alone." He said that Zitnik soon caught up with him, and that only then did he stop and turn to face him. He claimed that Zitnik was facing him in a threatening posture and that he feared Zitnik might attack him with a knife. He claimed that Zitnik then violently grabbed him by the shoulder in a manner that pulled his hooded sweatshirt and underlayers over his head, blinding him. Lake asserted that, while Zitnik "ha[d] ahold of him," he unsheathed his knife from his belt with his free arm and, in self-defense, began swinging blindly, "[r]oundhouse style," at Zitnik until he felt the "knife connect." He recalled swinging at Zitnik "until the last swing when my knife stopped" and Zitnik released him and pushed him to the ground. He asserted that he then "pull[ed] the rest of [his] hoodie" and "other shirts" off and, fearful of the still-standing Zitnik, "got up and . . . ran away," "down the hill," and "walked back home."

¶7 Zitnik recalled that, after "let[ting] [Lake] leave first," he was walking across the street from the bar towards his car when he noticed Lake down the street, a "safe distance" ahead. He testified that he did not remember how they converged, but at some point sensed that he was hurt when he felt the sensation of a "thumbtack going down [his] neck" and realized that Lake was stabbing him. He said that he then grabbed Lake, threw him to the ground, turned away, saw Cravens up the street, and ran towards him.

¶8 Cravens testified that he was walking to his vehicle after leaving the bar when he heard grunting sounds down the street indicative of a scuffle. He said he continued in that


direction until he saw Zitnik and Lake emerge from the darkness under a streetlight, with Lake "throwing hooks" at Zitnik, "the last one hit[ting] [him] in the neck." He said that, upon realizing that Zitnik was hurt, he called 911 and then helped Zitnik back to the bar where another regular applied towels to control his bleeding while they waited for an ambulance. An ambulance soon arrived and took Zitnik to the hospital emergency room. Due to the large arterial wound in his neck, attending medical personnel had Zitnik transported to a Great Falls hospital for surgical treatment of his multiple stab wounds.

¶9 Police arrested Lake shortly after the stabbing and interrogated him in custody. On April 3, 2017, the State charged Lake with attempted deliberate homicide based on the stabbing of Zitnik, and evidence tampering based on his alleged concealment or disposal of the knife after the stabbing.[1]

2. Motion to Exclude Prior Child Sex Abuse Comments and References.

¶10 Prior to trial, Lake gave notice of intent to assert the affirmative defense of justifiable use of force (JUOF). On the asserted grounds of relevance and prejudice, he also filed a motion for exclusion of any reference at trial to "an alleged rumor" that he was a "pervert" or "child molester." At the subsequent motions hearing, the parties and the court construed the motion to apply to any and all explicit references to Lake's self-given nickname, various other comments, and a particular dream, all of which referred to forms of child sexual abuse.


¶11 The evidentiary dispute arose from Lake's initial post-arrest statements to police. He initially told detectives that, except for running away with his shirt off without knowing why, he had no memory of the altercation outside the bar. However, when police later followed up on his earlier written statement, Lake told them that an unidentified man, who had previously antagonized and slandered him to other bar regulars "about some" unspecified "things [he] said," followed him outside the bar the night of the stabbing.[2] He explained to police that he often made provocative statements to shock and repel others. For example, he said he was known by the nickname, "skull fucker," had once sang a song in the bar about "skull fucking" and "scallywags," and had told an offensive joke that referred to a "black and blue" "five-year-old boy" in the trunk of his car who "hates sex." After speaking with Lake, police questioned Zitnik in the hospital. He acknowledged that he was concerned about Lake's prior child sexual abuse comments, thereafter did not want to be around him, and had discussed his concerns about Lake with other bar regulars.

¶12 At the subsequent motions hearing, defense counsel acknowledged that the generic facts that Zitnik was offended by Lake's prior child sex abuse comments and references, and had discussed his resulting concerns about Lake with others, were relevant as proof of Lake's alleged motive for attempting to kill Zitnik. Counsel asserted, however, that explicit reference to Lake's "skull fucker" nickname and comments, reference to him as a child molester, and other references to "child molestation" were unfairly prejudicial due to


"the risk of . . . convict[ing] [him] for the wrong reasons." Counsel asserted that the State could more generically present evidence of the existence and nature of Lake's animosity toward Zitnik without such explicit child sex abuse references.[3]

¶13 The State countered that verbatim references to Lake's sexually explicit nickname and corresponding child sex abuse comments were relevant to show the serious nature and degree of his animosity toward Zitnik, and thus his motive to attempt to kill him, to wit:

[T]here is something unique about somebody who himself says that he is a child molester. . . . [H]e said that he was a skull fucker. He said that he had this bad joke about a dead five-year-old in his trunk who didn't like sex. These statements and ones like [them] were made to [Zitnik] and . . . other people in the bar . . . [and] caused heightened concern by everybody in the bar about whether

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