                                                                                                08/09/2017


                                           DA 16-0158
                                                                                            Case Number: DA 16-0158

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 196



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

MARY NEWMAN REOPELLE,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC-15-177
                        Honorable Robert L. Deschamps, III, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Dana A. Henkel, Terrazas Clark Henkel, P.C., Missoula, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
                        Attorney General, Helena, Montana

                        Kirsten H. Pabst, Missoula County Attorney, Karla Painter, Deputy
                        County Attorney, Missoula, Montana



                                                    Submitted on Briefs: May 24, 2017

                                                                Decided: August 9, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1        Mary Newman Reopelle (Reopelle) appeals her conviction for felony deceptive

practices entered in the Fourth Judicial District Court, Missoula County, following a jury

trial. Reopelle raises the following issues on appeal:

     1.      Whether the court abused its discretion by admitting evidence of Reopelle’s
             prior investigations and convictions for fraudulent deceptive practices.

     2.      Whether the court abused its discretion in allowing an expert witness to testify
             over Reopelle’s objection that the State’s notification was late.

     3.      Whether the court abused its discretion when it declined to give a proposed
             jury instruction for misdemeanor theft.

We affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

¶2        On January 14, 2015, Cecile Sorensen (Sorensen), an employee at Missoula

Federal Credit Union (MFCU), received six checks issued on January 13, 2015, from

Academy Bank.        The checks, totaling $17,999.79, were for the following amounts:

$2,999.94, $2,999.98, $2,999.99, $2,999.95, $2,999.96, and $2,999.97. The checks were

drawn on an account belonging to “Shawn Garvin” and were designated for deposit into

Reopelle’s MFCU account, which had been recently opened and had a minimal balance

of $5. Sorensen thought the check values were suspicious and her manager instructed her

to contact Reopelle to see if she was expecting the deposits. Reopelle confirmed she was

expecting the checks. Sorensen, while intending to place a hold on the checks until they

cleared, accidentally entered improper codes which allowed Reopelle to access the

deposits immediately.



                                           2
¶3       On January 15 and 16, 2015, Reopelle withdrew from her MFCU account cash in

the amounts of $9,800 and $7,500. Next, she deposited most of the funds into an account

at Wells Fargo under the name of “Shawn Garvin.” The funds were deposited in three

denominations: $2,300, $5,700, and $7,500—all on January 16, 2015. On January 20,

2015, Reopelle withdrew an additional $500 from her MFCU account. Academy Bank

did not honor the six checks deposited in Reopelle’s MFCU account because the

Academy account had been closed due to bad check activity. Reopelle explained to

MFCU manager, Carrie Schuster (Schuster), that “Shawn Garvin” was her boyfriend,

whom she had met on the internet. Reopelle, however, had never met him personally.

Reopelle provided Schuster with the receipts for the deposits she had made into the Wells

Fargo account.

¶4       Missoula City Police Department was notified and Detective Stacy Lear

(Detective Lear) obtained a search warrant for Reopelle’s residence. Several cell phones,

computers, and other electronic devices were recovered. One of Reopelle’s cell phones

contained a number for “Shawn Garvin.”         Detective Lear called the number, left a

message, and did not receive a response. Reopelle was charged with felony deceptive

practices, which was later amended to felony deceptive practices or, alternatively, felony

theft.

¶5       The State declared it would be introducing evidence of four prior investigations,

commencing in 2008, of fraudulent online financial crimes involving Reopelle and two

recent misdemeanor convictions for deceptive practices. The first investigation was in

July 2008, when Detective Ben Slater (Detective Slater) of the Missoula City Police


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Department investigated a Nigerian online financial scam involving Reopelle and her

attempt to cash a counterfeit check for $3,800 issued by “Robert Burkhart.” Reopelle

was considered a victim of the scam and Detective Slater believed he counseled Reopelle,

as was his usual practice, on how to avoid being victimized by internet financial schemes.

¶6    In 2011, Detective Lear interviewed Reopelle regarding another Nigerian online

financial scam in which Reopelle was believed to be involved. Reopelle explained that

she was offered a “job opportunity” from “Jim Ray” through an email. The email

included a list of names, addresses, and dollar amounts with instructions for Reopelle to

fill in the information on blank checks she would be receiving.        Reopelle received

approximately fifty checks from “Jim Ray,” filled in the amounts as directed, and

Reopelle herself received $200 from “Jim Ray.” Reopelle gave law enforcement receipts

for four wire transfers to Nigeria which totaled $1,540.       Detective Lear cautioned

Reopelle about these types of online fraudulent scams and that she should avoid any

participation in them in the future. Reopelle was not charged with any offense.

¶7    In 2011, a law enforcement agency from New York contacted Detective Lear for

assistance in a fraud investigation involving a purported sale of a snow blower by

Reopelle to the victim, Regina Sullivan (Sullivan). Sullivan said that she sold a snow

blower on Craigslist to Reopelle and received a check as payment. Sullivan received an

amount that was more than the cost of the snow blower and was instructed by Reopelle to

deposit the check and send the excess amount back to Reopelle.              Sullivan was

subsequently advised by her bank that Reopelle’s check was dishonored.




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¶8     In October 2012, an employee of Nightingale Nursing Home reported to law

enforcement that she was concerned one of her clients, Reopelle, was possibly being

scammed based on Reopelle’s possession of checks for large amounts and Reopelle’s

emails. Officer Randy Long (Officer Long) responded and Reopelle explained that her

long distance boyfriend of four years, “Morak Lauren,” whom Reopelle had never met,

sent her money orders through Western Union. Officer Long noted that the email address

was an address associated with internet scams.      Additionally, a phone number on

Reopelle’s cell phone from another man Reopelle had met online and “dated” was also

associated with online fraudulent financial scams. Officer Long determined that Reopelle

should not be charged and educated Reopelle about internet scams.

¶9     Reopelle’s prior convictions arise from two incidents. The first concerned an

investigation in September 2014, arising out of a report the Missoula City Police

Department received from law enforcement in Colorado that Thomas Davis (Davis) had

sent a $730 postal money order to Reopelle to purchase a gun listed for sale on the

internet.   Officer Kasey Williams (Officer Williams) of the Missoula City Police

Department interviewed Reopelle. Reopelle admitted that a man she met on the internet

named “Morak Lauren” had told her she was going to receive a check in the mail for

$700 and instructed Reopelle to immediately cash the check and wire that amount by

Western Union to “Adebunmri Lanre” in Nigeria. Reopelle followed the instructions

hoping that “Morak Lauren” would follow through on his promise to marry Reopelle.

Officer Williams counseled Reopelle on internet scams.




                                        5
¶10   The second offense concerned a complaint from Larry Prior (Prior) and an inquiry

from the Montana Office of Consumer Protection.        Prior reported that he had sent

Reopelle a money order for $630 as payment for a gun listed on the internet. Prior never

received the gun. Detective Lear interviewed Reopelle and she admitted that she had

received the $630 payment, but that “Morak Lauren” had told her Prior was his partner

and instructed her to cash the money order and wire the amount to “Odebunmi Olufemi

Lanre” in Nigeria.

¶11   Detective Lear issued two citations for misdemeanor deceptive practices arising

from these incidents involving Davis and Prior.      On November 26, 2014, Reopelle

entered a guilty plea to both charges and was sentenced on January 16, 2015—the same

day she withdrew cash from her MFCU account and made three separate deposits totaling

$15,500 into a Wells Fargo account for “Shawn Garvin.” Prior to charging Reopelle,

Detective Lear confirmed with Reopelle’s case manager that Reopelle was not suffering

from any mental incapacity and that Reopelle managed her own financial affairs.

¶12   In the instant proceedings, a jury trial was scheduled for November 18, 2015.

Reopelle filed a motion to exclude evidence of prior bad acts on November 2, 2015. On

November 3, 2015, the State notified the defense that Detective Lear, who had been listed

as a witness since the Information was filed, would be used as an expert witness to

generally describe how financial scams on the internet occur. Reopelle objected on the

basis that the State’s disclosure of Detective Lear as an expert witness was late. At a

pretrial hearing on November 16, 2015, the District Court heard oral argument on

Reopelle’s motion to exclude prior bad acts evidence and her objection to the disclosure


                                        6
of Detective Lear as an expert witness. At the conclusion of the hearing, the District

Court determined that evidence of Reopelle’s four prior investigations and two

misdemeanor convictions was admissible. The District Court also held that Detective

Lear could testify generally as an expert about fraudulent internet financial schemes, but

that Detective Lear could not testify as to Reopelle’s state of mind. The court indicated it

would consider a renewed objection should the testimony stray from what the court had

determined was permissible.

¶13      During the settling of jury instructions, Reopelle offered a lesser included offense

instruction for misdemeanor theft, i.e. exerting unauthorized control over property valued

at less than $1,500. The District Court determined the value of the property MFCU was

deprived of was not in dispute and that it exceeded $1,500. The court explained that

Reopelle admitted she withdrew $17,800 from MFCU and that the evidence did not

support a misdemeanor theft instruction to the jury. Reopelle was found guilty of felony

deceptive practices and the court deferred imposition of sentence for a period of six

years.

¶14      Following trial, the District Court issued a written opinion and order on November

20, 2015, explaining its decision to allow evidence of prior bad acts. The court noted the

similarity of the acts and that Reopelle presented herself as a “sympathetic unwitting

lonely victim with limited knowledge as demonstrated by the fact that investigating

police officers repeatedly gave her the benefit of the doubt and warnings in multiple

earlier similar episodes.” The court explained that the prior bad acts evidence was

relevant because it had “a tendency to prove that the Defendant did in fact commit the


                                           7
offense of Deceptive Practices in an ongoing and repeated fashion and did so with

knowledge and in the absence of mistake.”

¶15    Reopelle raises the aforementioned issues on appeal.

                              STANDARDS OF REVIEW

¶16    District courts have broad discretion to determine the admissibility of evidence.

State v. Madplume, 2017 MT 40, ¶ 19, 386 Mont. 368, 390 P.3d 142. We review

evidentiary rulings for an abuse of discretion. Madplume, ¶ 19. To the extent an

evidentiary ruling is based on a district court’s interpretation of the Montana Rules of

Evidence, our review is de novo. Madplume, ¶ 19.

¶17    This Court reviews a trial court’s decision of whether to preclude a witness from

testifying for an abuse of discretion. State v. Bowen, 2015 MT 246, ¶ 20, 380 Mont. 433,

356 P.3d 449.

¶18    This Court reviews a district court’s broad discretion to instruct a jury for an abuse

of discretion. State v. Reynolds, 2017 MT 25, ¶ 36, 386 Mont. 267, 389 P.3d 243. The

district court’s decisions regarding instructions to the jury are presumed correct, and the

appellant bears the burden of proving they are in error. Reynolds, ¶ 36.

¶19    An abuse of discretion occurs when a district court acts arbitrarily without

conscientious judgment or exceeds the bounds of reason, resulting in substantial injustice.

Madplume, ¶ 19; Reynolds, ¶ 36.




                                          8
                                      DISCUSSION

¶20 1. Whether the court abused its discretion by admitting evidence of Reopelle’s
prior investigations and convictions for fraudulent deceptive practices.

¶21    Reopelle argues that the court abused its discretion by admitting evidence of

Reopelle’s prior acts because the evidence did not show that Reopelle knew she acted

fraudulently or deceptively; the State did not conduct an adequate investigation into the

prior acts to demonstrate Reopelle knew she was behaving fraudulently or deceptively;

and the officers’ testimony that they had counseled Reopelle on the criminality of her

conduct was speculative. Reopelle argues generally that her “purported knowledge of the

law is irrelevant.” The State maintains that Reopelle’s history of victimization was

germane to the defense’s theory at trial. The State argues that Reopelle’s convictions and

her repeated investigations into online financial activities, in addition to education by

police about criminal activity, were probative of knowledge, intent, and the absence of

mistake.

¶22    Unless otherwise provided by constitution, statute, or rule, all relevant evidence is

admissible. M. R. Evid. 402. Relevant evidence means “evidence having any tendency

to make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” M. R. Evid. 401.

Even relevant evidence may be excluded, however, “if its probative value is substantially

outweighed by the danger of unfair prejudice . . . .” M. R. Evid. 403. M. R. Evid. 404(b)

further limits admissibility:

       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. It


                                         9
       may, however, be admissible for other purposes, such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident.

¶23    Rule 404(b) does not forbid the admission of propensity evidence or constitute a

bar to propensity evidence; instead, Rule 404(b) prohibits a theory of admissibility which

allows an ultimate inference to be made when it is premised upon an intermediate

inference of the defendant’s personal, subjective character. State v. District Court of the

Eighteenth Judicial District, 2010 MT 263, ¶ 47, 358 Mont. 325, 246 P.3d 415.

Referring to Edward J. Imwinkelried, Uncharged Misconduct Evidence, we explained in

Eighteenth Judicial that “[e]ssentially, Rule 404(b) disallows the inference from bad act

to bad person to guilty person.” Eighteenth Judicial, ¶ 47. Imwinkelreid further explains

that if the prosecutor “can arrive at an ultimate inference of conduct through a different

intermediate inference, the prohibition is inapplicable.”    1 Edward J. Imwinkelreid,

Uncharged Misconduct Evidence § 4:1, 5-6 (Rev. ed. 2009) (“When the prosecutor

develops a theory of logical relevance without an intermediate inference as to the

defendant’s character, the theory moots one of the dangers. If the prosecutor can develop

an alternative intermediate inference, Rule 404(b) will not bar the admission of

uncharged misconduct.”). When the theory of admissibility depends on an intermediate

inference of a defendant’s personal, subjective character traits, there is a high risk of

misdecision and that the jury will convict because they find the defendant repulsive,

immoral, or repugnant. Imwinkelreid, supra, at § 4:1, 17. See also State v. Daffin, 2017

MT 76, ¶ 15, 387 Mont. 154, 392 P.3d 150 (“Rule 404(b) other acts evidence is

admissible if the proponent can ‘clearly articulate how that evidence fits into a chain of


                                        10
logical inferences, no link of which may be the inference that the defendant has the

propensity to commit the crime charged.” (citations omitted)).

¶24    Lastly, Rule 403 provides that relevant evidence may be excluded “if its probative

value is substantially outweighed by the danger of unfair prejudice . . . .” In a criminal

prosecution, most of the evidence will be prejudicial to the defendant. State v. Stewart,

2012 MT 317, ¶ 68, 367 Mont. 503, 291 P.3d 1187 (citing State v. Belanus, 2010 MT

204, ¶ 14, 357 Mont. 463, 240 P.3d 1021). Thus, “unfair” prejudice refers to the degree

the jury might impermissibly rely on the intermediate inference of propensity. “Even if

evidence is potentially unfairly prejudicial, the Rule 403 balancing test favors

admission—the risk of unfair prejudice must substantially outweigh the evidence’s

probative value.” Madplume, ¶ 33.

¶25    We have stated that “[t]he typical prosecution case is reducible to three elements:

(1) someone committed the actus reus (i.e. forbidden act) alleged in the indictment or

information; (2) that person possessed the requisite mens rea (i.e., criminal intent or state

of mind); and (3) that person was the defendant.” Stewart, ¶ 64 (citations omitted). Here,

there is no dispute that MFCU was deprived of $17,800 as a result of three cash

withdrawals made by Reopelle following the dishonoring of several deposits drawn on a

closed account with Academy Bank.          Thus, the actus reus, or commission of the

forbidden act, is not in dispute. Similarly, it is undisputed that Reopelle was the person

responsible for making the withdrawals on the deposits. Accordingly, Reopelle’s mens

rea, or intent, was the primary element in dispute in this prosecution.




                                         11
¶26    These proceedings present the quintessential permissible use of prior bad acts

evidence. We cannot imagine a clearer example of evidence offered to demonstrate

mental state that does not rely upon an intermediate inference of Reopelle’s personal,

subjective character. Here, the prior investigations and convictions were highly probative

of Reopelle’s intent, knowledge, and absence of mistake—without the necessity of

making an intermediate inference of propensity to establish its admissibility.        The

evidence demonstrated a pattern and course of conduct, as noted by the court, of

presenting “worthless bank drafts upon an account that was closed . . . before the

worthless nature of the deposited drafts was discovered.”        In some instances, the

worthless bank drafts were offered with instructions that the amount in excess of a

purchase price be immediately forwarded back to Reopelle or Reopelle’s designee. In

other instances, Reopelle claimed she was “duped,” “victimized,” and innocently

following instructions of her internet suitor when accepting checks or money orders and

redistributing the monies.

¶27    This evidence is clearly consequential to a determination of an element of the

crime: whether Reopelle possessed the mens rea, or intent, for the crime charged, theft by

deceptive practices.   Section 45-2-101(18), MCA, provides that “[d]eception means

knowingly to . . . create or confirm in another an impression that is false and that the

offender does not believe to be true; [or] fail to correct a false impression that the

offender previously has created or confirmed . . . .”         The repeated and similar

circumstances evidencing Reopelle’s involvement in online financial schemes where she

accepted checks or money orders from people she did not know with instructions to


                                        12
redistribute the monies is probative of whether Reopelle had the intent to deceive.

Furthermore, the appropriate use of evidence demonstrating absence of mistake or

accident is premised upon the inference that as the number of incidents increase, the

objective probability of accident decreases. That is, it is highly unlikely that the same

crime would again be accidentally committed after so many similar prior accidental acts.

The permissible inference arising from an absence of mistake or accident allowed by

Rule 404(b) is that it defies common sense or logic to find coincidence on so many

occasions. Here, the evidence was also probative of Reopelle’s intent by demonstrating

the unlikelihood of mistake or accident on so many occasions.

¶28    Finally, the testimony that officers educated Reopelle about the types of schemes

she was involved in is also probative of Reopelle’s knowledge, intent, and absence of

mistake. Whether, in fact, the officers actually educated Reopelle about internet scams

was for the jury to assess, not the court. We stated in Eighteenth Judicial, ¶ 55, that

“evidence is not inadmissible just because [the defense] believes the witnesses are not

credible.” Reopelle’s claim, therefore, that the evidence was speculative is not relevant

to a Rule 404(b) analysis; such issues go to the weight of the evidence and are for the jury

to assess. The defense was free to cross-examine the officers regarding their attempts to

educate Reopelle. Still, the fact that law enforcement would inquire of Reopelle five

times in six years regarding her suspected fraudulent internet conduct would certainly

permit the jury to infer that Reopelle knew her behavior was criminal.

¶29    We conclude that the evidence of Reopelle’s involvement in investigations and her

convictions for deceptive practices were relevant to knowledge, intent, and absence of


                                         13
mistake.     M. R. Evid. 401. The State’s theory of admissibility was not premised upon

any inference of bad character. M. R. Evid. 404(b). Finally, pursuant to Rule 403,

evidence of the prior investigations and convictions was highly probative, in comparison

to the minimal risk of any unfair prejudice, i.e., use of the evidence by the jury to infer

propensity. The District Court did not abuse its discretion and applied the law correctly

when it denied Reopelle’s motion to exclude evidence of her prior investigations and

convictions.1

¶30 2. Whether the court abused its discretion in allowing an expert witness to testify
over Reopelle’s objection that the State’s notification was late.

¶31    Reopelle’s objection to Detective Lear testifying is based entirely on her claim that

the State’s disclosure of Detective Lear as an expert witness was late. Defense counsel

argued that such a “late disclosure” precluded her from obtaining her own expert witness

who could indicate the current offense was consistent with being a victim of an internet

scam. Reopelle did not want a continuance, however, arguing that she would have to

waive her right to speedy trial.

¶32    Detective Lear had been noticed by the State as a witness since the Information

was filed.      The District Court observed that Detective Lear would provide general

information about online fraudulent schemes and that such a general description of

criminal activity is no more “exotic than most other police work.” The court disallowed

1
  We reject Reopelle’s suggestion that our analysis should include review of the thoroughness of
the investigation conducted by law enforcement in the four prior investigations. To the extent
this may have any relevance, it would relate to the weight or credibility a jury might attribute to
the evidence. Certainly as well, a court may consider excluding the prior bad acts evidence
because of the risk that the jury may be led astray or confused by a mini-trial. That is not
Reopelle’s argument, however, either here or in the District Court.


                                            14
any testimony by Detective Lear concerning Reopelle’s state of mind and recognized that

if the testimony strayed during trial, that Reopelle could renew her objection to a specific

inquiry.

¶33    Based upon our review of the record, it is clear the defense was aware that

Detective Lear would testify and that she had firsthand information about many of the

investigations that Reopelle had been involved in. The defense similarly knew that

Detective Lear had explained to Reopelle how online fraudulent financial schemes

generally work and to avoid becoming involved in such criminal activity.             As of

November 16, 2015, defense counsel had not interviewed Detective Lear, although the

State had made her available as an expert witness since April 10, 2015. Significantly, the

information Detective Lear would offer as an expert witness was nothing different from

the information she possessed and was available to relate to the defense when she was

first identified as a witness in the Information. Reopelle made no showing of any attempt

to secure an expert or how the expert would rebut Detective Lear’s testimony. Indeed,

Detective Lear’s decisions not to charge Reopelle in the earlier investigation and to

educate Reopelle regarding internet activities were consistent with Reopelle’s argument

that her expert would help establish that Reopelle was a victim of the scam and had been

“duped.”

¶34    We conclude that the District Court’s decision to overrule Reopelle’s objection

based on Detective Lear’s late disclosure was not an abuse of discretion. Our conclusion

is premised upon the nature of Detective Lear’s involvement in the prior investigations;

that Detective Lear’s actions and expected testimony were known and did not constitute a


                                         15
surprise to the defense; that the record is silent concerning how a “competing” expert

would rebut Detective Lear’s testimony; and that Reopelle rejected the notion of a

continuance.

¶35 3. Whether the court abused its discretion when it declined to give a proposed
jury instruction for misdemeanor theft.

¶36    Reopelle argues that she was entitled to a lesser included offense instruction of

misdemeanor theft because Reopelle kept for herself an amount less than $1,500.

Reopelle maintains that the rest of the money went into “Shawn Garvin’s” Wells Fargo

account and therefore should not be used in computing value to satisfy the elements of

felony theft. Reopelle did not request a lesser included offense instruction for felony

deceptive practices. However, the jury returned a verdict of guilty of felony deceptive

practices and rejected the alternative charge of theft, regardless of whether a

misdemeanor theft instruction was given. See State v. Stewart, 2016 MT 1, ¶ 25, 382

Mont. 57, 363 P.3d 1140 (concluding there was no error to refuse misdemeanor assault

instruction when the jury rejected a lesser charge of attempted aggravated assault in favor

of attempted deliberate homicide).

¶37    More importantly, however, the District Court correctly declined to instruct the

jury on misdemeanor theft because it was undisputed the value of the property MFCU

was deprived of was greater than $1,500. It was undisputed that Reopelle made three

cash withdrawals totaling $17,800 and that the checks were not honored by the issuing

bank. Accordingly, the evidence did not support a finding that Reopelle committed the




                                        16
lesser offense. See State v. Russell, 2016 MT 268, ¶¶ 22-25, 385 Mont. 208, 383 P.3d

198.

¶38    The District Court correctly recognized that the evidence did not support a lesser

included theft instruction.

                                    CONCLUSION

¶39    Reopelle’s conviction is affirmed.


                                                /S/ LAURIE McKINNON

We Concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR


Justice Jim Rice, concurring.

¶40    Citing to legal commentators can be helpful if our law is not sufficiently

developed or we lack precedent necessary to guide our decision. However, caution must

be employed, as commentators often speak generally and fail to incorporate the nuances

of a particular state’s law.    Regarding Rule 404(b), we have significant Montana

jurisprudence that is clearly sufficient to decide this case, and the Court’s multiple

citations to legal commentary are unnecessary. The opinion’s author relied heavily upon

this commentary in her recent dissent in State v. Blaz, 2017 MT 164, 388 Mont. 105, ___

P.3d ___, which was decided without reliance on the commentary. My vote to affirm is

based on the authority of Montana case law.

                                                /S/ JIM RICE


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