State v. Weldy

• Decision Date: 13 September 1995
• Docket Number: No. 94-409,94-409
• Parties: STATE of Montana, Plaintiff and Respondent, v. Ralph Owen WELDY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1

902 P.2d 1

273 Mont. 68

STATE of Montana, Plaintiff and Respondent, v. Ralph Owen WELDY, Defendant and Appellant.

No. 94-409.

Supreme Court of Montana.

Submitted on Briefs April 6, 1995.

Decided Aug. 4, 1995.

As Amended on Denial of Rehearing Sept. 13, 1995.

Alfred Avignone, Ungar, Avignone & Banick, Daniel P. Buckley, Berg, Lilly, Andriolo & Tollefsen, Bozeman, for appellant.

Joseph P. Mazurek, Atty. Gen., Barbara C. Harris, Asst. Atty. Gen., Helena, Mike Salvagni, Gallatin County Atty., Gary Balaz, Deputy County Atty., Bozeman, for respondent.

HUNT, Justice.

Appellant Ralph Owen Weldy appeals from the sentence and final judgment entered in the Eighteenth Judicial District Court, Gallatin County, finding him guilty of felony assault and misdemeanor domestic abuse, and sentencing him to consecutive terms of ten years for felony assault, two years for use of a weapon, and six months for domestic abuse, all to run concurrently. The District Court designated appellant a dangerous offender for the purpose of parole eligibility.

We reverse and remand.

Appellant raises six issues on appeal. However, we limit our decision to the following:

1. Did the District Court err in allowing testimony of prior assaults by appellant against Cynthia Weldy?

2. Did the District Court properly instruct the jury as to the unanimity of its verdict?

Appellant and Cynthia Weldy were married on May 1, 1993, and divorced on December 1, 1993. On July 9, 1993, appellant visited Cynthia at the Lucky Cuss, her place of employment, where he observed Cynthia speaking with three men whom he believed were arranging to meet Cynthia after work. When Cynthia arrived home after work she discovered that appellant was agitated and had been drinking alcohol.

Appellant began striking Cynthia on the chin, the face, and her arms. While Cynthia was seated in a kitchen chair with her back to a wall, appellant began plunging a 12-inch serrated knife into the wall beside her head.

Throughout the night and into the next morning, appellant continued assaulting Cynthia. At one point, he broke a drinking glass and threatened Cynthia with the jagged glass bottom. At another point in the early morning, appellant struck Cynthia on the head, shoulder, ribs, and hand with a piece of firewood.

After appellant went to bed at 7 a.m., Cynthia left home and reported to her second job at the Friendly Cafe. At 8:45 a.m., appellant walked into the Friendly Cafe and struck Cynthia in the back and side of her head while she was carrying a pot of coffee. Appellant left and later returned to the Friendly Cafe where he pulled Cynthia out the rear door of the cafe and renewed his assault.

On January 25, 1994, the Gallatin County Attorney charged appellant by amended information with one count of felony assault under § 45-5-202(2)(a) or (b), MCA, and one count of misdemeanor domestic abuse under § 45-5-206(1)(a), MCA. Appellant was tried by a jury and convicted of felony assault and domestic abuse. The District Court sentenced appellant to consecutive terms of ten years for felony assault and two years for the use of a weapon. In addition, the District Court sentenced appellant to a concurrent term of six months for domestic abuse, and designated appellant a dangerous offender for the purpose of parole eligibility. The District Court denied appellant's motion for a new trial. Appellant appeals the judgment and sentence of the District Court.

ISSUE 1

Did the District Court err in allowing testimony of prior assaults by appellant against Cynthia Weldy?

We review evidentiary rulings by a district court to determine whether the district court abused its discretion. State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380; State v. Crist (1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054. The district court has broad discretion to determine whether evidence is relevant and admissible, and absent a showing of abuse of discretion, the district court's determination will not be overturned. Passama, 863 P.2d at 380; Crist, 833 P.2d at 1054.

The charges brought against appellant involve events which occurred on July 9 and 10, 1993. At trial, the State introduced, and the District Court admitted, testimony of prior assaults committed by appellant against Cynthia between May 3 and July 9, 1993. Appellant argues that testimony of prior assaults was introduced to show his character and his propensity to act in conformity therewith in an effort to prejudice the jury. Appellant contends that the prior acts should have been excluded pursuant to Rules 404(b) and 403, M.R.Evid., and State v. Matt (1994), 249 Mont. 136, 814 P.2d 52.

The admissibility of prior acts evidence is controlled by Rule 404(b), M.R.Evid., which provides that: "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." The general rule of Rule 404(b) must be strictly enforced, except where a departure is clearly justified, and exceptions to the rule must be carefully limited. State v. Keys (1993), 258 Mont. 311, 315, 852 P.2d 621, 623; Crist, 833 P.2d at 1054.

In Matt, we modified the rule established in State v. Just (1979), 184 Mont. 262, 602 P.2d 957, and set forth a four-part test to insure that prior acts evidence is not introduced as character evidence. The modified Just rule requires that:

(1) The other crimes, wrongs or acts must be similar.

(2) The other crimes, wrongs or acts must not be remote in time.

(3) The evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(4) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Matt, 814 P.2d at 56. The following procedural protections apply as part of the modified Just rule:

(1) Evidence of other crimes, wrongs, or acts may not be received unless there has been written notice to the defendant that such evidence is to be introduced. The notice to the defendant shall specify the other crimes, wrongs, or acts to be admitted, and the specific Rule 404(b) purpose or purposes for which it is to be admitted.

(2) At the time of the introduction of such evidence, the trial court shall explain to the jury the purpose of the evidence and shall admonish it to consider the evidence for only such purposes.

(3) In its final charge, the court shall instruct the jury in unequivocal terms that such evidence was received only for the limited purposes earlier stated and that the defendant is not being tried and may not be convicted for any offense except that charged....

Matt, 814 P.2d at 56.

On March 1, 1994, the State provided appellant with Just notice stating that it would offer evidence that appellant assaulted Cynthia on May 3, 1993, and that appellant told Cynthia that "I killed my first wife, what do you think of that." The State asserted that it planned to offer appellant's physical conduct and his statement as proof of motive and intent. The District Court prevented either party from offering appellant's statement about killing his first wife, but allowed Cynthia to testify about prior assaults committed against her by appellant.

We must determine whether the alleged prior assaults were admissible under the modified Just requirements to prove that on May 9 and 10, 1993, appellant committed felony assault against Cynthia by knowingly or purposely causing bodily injury to Cynthia with a weapon, or by knowingly or purposely causing Cynthia to reasonably apprehend serious bodily injury by use of a weapon. Section 45-5-202(2)(a) or (b), MCA.

Appellant does not dispute that the alleged prior bad acts were sufficiently near in time to the charged act to satisfy the second modified Just criteria. However, upon review of the record, we conclude that this is the only requirement of the modified Just rule which is satisfied.

The State argues that the first modified Just requirement is fulfilled because the acts committed by appellant between May 1993 and July 1993, and the charged acts, were similar. We have consistently held that the prior acts do not have to be identical to the charged conduct, only sufficiently similar. State v. Tecca (1986), 220 Mont. 168, 172, 714 P.2d 136, 138. See also State v. Brooks (1993), 260 Mont. 79, 857 P.2d 734; State v. McKnight (1991), 250 Mont. 457, 820 P.2d 1279; State v. Sadowski (1991), 247 Mont. 63, 805 P.2d 537; State v. Gambrel (1990), 246 Mont. 84, 803 P.2d 1071; State v. Eiler (1988), 234 Mont. 38, 762 P.2d 210; State v. Long (1986), 223 Mont. 502, 726 P.2d 1364. There is no rigid rule for determining when conduct is sufficiently similar, rather, the determination of similarity depends on whether that conduct has some relevance to prove an issue in dispute. Keys, 852 P.2d at 623.

The issue in dispute here is whether appellant used a weapon to cause bodily injury or reasonable apprehension of serious bodily injury in Cynthia. Cynthia testified that commencing with the honeymoon, her husband's attacks were progressively more violent and that appellant threatened to kill her on at least two occasions. Given that appellant denied using a weapon in the assault on his wife, the evidence that he had previously, regularly beat her in a progressively more violent manner tended to prove that his last assault had gone beyond merely slapping her "a few times" as he conceded, but had escalated, as the State maintained, to his use of a weapon to injure her or to produce reasonable apprehension of serious bodily injury.

Accordingly, under our prior ...