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                                                                No. 97-705

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2000 MT 51N

                                                      STATE OF MONTANA,

                                                      Plaintiff and Respondent,

                                                                      v.

                                                   DONALD G. WHITTECAR,

                                                     Defendant and Appellant.

                           APPEAL FROM: District Court of the Fourth Judicial District,

                                               In and for the County of Missoula,

                                     The Honorable John S. Henson, Judge presiding.

                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                                  William Boggs, Attorney at Law, Missoula, Montana

                                                            For Respondent:

                               Hon. Joseph P. Mazurek, Attorney General; John Paulson,

                                       Assistant Attorney General; Helena, Montana

                             Fred Van Valkenburg, Missoula County Attorney, Missoula,

                                                                 Montana

                                            Submitted on Briefs: February 3, 2000


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                                                     Decided: February 29, 2000

                                                                    Filed:

                                    __________________________________________

                                                                     Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 Appellant Donald G. Whittecar (Whittecar) was charged with one count of felony theft
and one count of felony theft, common scheme. Upon trial by jury, Whittecar was found
guilty on both counts. Whittecar appeals from the judgment of conviction. We affirm.

¶3 Whittecar raises three issues on appeal:

¶4 1. Was Whittecar denied his right to effective assistance of counsel as the result of his
attorney's conduct during voir dire?

¶5 2. Did the District Court properly deny Whittecar's motion to sever the two counts of
theft?

¶6 3. Did the District Court properly deny Whittecar's motion to exclude other crimes
evidence?

¶7 In September of 1994, Whittecar brought a wrecked Mercedes automobile to the Blue
Ribbon Auto Body Shop in Missoula. Blue Ribbon gave Whittecar an estimate of about
$2,600. Whittecar left the car with Blue Ribbon for about six months when he called and
indicated that he had sufficient funds and that Blue Ribbon should go ahead with the
repairs. Blue Ribbon completed the repairs and advised Whittecar that the car was ready in
early May 1995 and that the bill came to $2,653. Whittecar gave Blue Ribbon $1,500 in
cash and a check, post-dated a week in advance for May 16, 1995, for the balance of

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$1,153. Blue Ribbon released the car to Whittecar. The check was subsequently returned
from the bank marked "Account Closed." The Blue Ribbon office manager was advised by
the bank that the account had been closed since April of 1995. Bank records indicated that
the account was closed in April of 1995 with a negative balance.

¶8 The facts with regard to Count II of the Amended Information show that in late August
of 1996, Whittecar bought an AM-FM tuner, an amplifier and two speakers from Fred
Downing, Jr. in Missoula. Whittecar paid for the stereo system with a check dated
September 3, 1996 in the amount of $289 and asked Downing to hold the check for a
couple of weeks. Downing waited three weeks and then deposited the check. It was
marked "Account Closed." The bank records indicated that the account had been closed in
August 1996 and that the bank president had written to Whittecar on August 8, 1996, to
inform him that the account was being closed and that any checks presented after August
16 would be returned "Account Closed."

                                                             DISCUSSION

¶9 1. Was Whittecar denied his right to effective assistance of counsel as the result of his
attorney's conduct during voir dire?

¶10 During the voir dire, the prosecutor asked the prospective jurors whether any of them
had ever had experiences with bad checks. Six of the prospective jurors indicated that they
had had experiences with bad checks in the course of their employment. After briefly
discussing these experiences, the prosecutor twice asked whether any of these experiences
would make it difficult for the panelists to maintain an open mind and give Whittecar a
fair trial. The transcript shows that none of the panelists responded to these inquiries. Four
of the six panelists having experience with bad checks were seated on Whittecar's trial
jury.

¶11 Whittecar argues on appeal that his trial counsel was ineffective for failing to inquire
of these jurors further and thereby develop challenges for cause. Whittecar asserts that "no
such inquiry was made or attempted by counsel, who simply abrogated his participation in
the voir dire proceedings." The record, however, belies this assertion. Rather, defense
counsel, during his portion of the voir dire, asked whether any of the prospective jurors
with bad check experience believed the experiences would impair their judgment and
affect their ability to give Whittecar a fair trial. Defense counsel inquired further as to
whether the panelists were willing to listen to the facts and to hear the entire case before


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rendering a judgment, even if they had previous bad check experience. Again, no panelists
expressed any reservations about their ability to sit and exercise impartial judgment.

¶12 Section 46-16-115(2)(j), MCA, allows a defendant to challenge a prospective juror for
cause if the juror has a state of mind that would prevent the juror from acting with entire
impartiality. The prospective juror becomes disqualified only when he or she has formed a
fixed opinion on the guilt or innocence of the defendant and is unable to render a verdict
based solely on the evidence presented at trial. See Great Falls Tribune v. District Court
(1980), 186 Mont. 433, 439-40, 608 P.2d 116, 120.

¶13 Whittecar relies on our decision in State v. Chastain (1997), 285 Mont. 61, 947 P.2d
57, in arguing that defense counsel should have made further inquiry. In Chastain, we
concluded that defense counsel's failure to take steps to prevent the presence on the jury of
two jurors who may not have been able to fairly serve amounted to ineffective assistance
of counsel. Chastain, 285 Mont. at 65-66, 947 P.2d at 60. In that case, two prospective
jurors had expressed reservations about their ability to judge the child sexual assault case
fairly. One of the panelists indicated strong feelings about an incident involving his little
sister and said that his feelings could taint his judgment against the defendant. The other
stated that accounts of such incidents evoke strong feelings in her which might impair her
judgment. Chastain, 285 Mont. at 63-64, 947 P.2d at 59. This Court determined that
counsel was ineffective for failing to make further inquiry as to whether the panelists
could set aside their feelings and render a fair verdict. Chastain, 285 Mont. at 65, 947 P.2d
at 60.

¶14 Chastain is clearly distinguishable. The record in the present matter reveals no
grounds for disqualification and no reason to further inquire about the panelists'
experiences with bad checks. Each of the individuals in question indicated an ability and
willingness to render a verdict based solely on the evidence. No one expressed any
opinion about Whittecar's guilt or innocence or any reservations about the presumption of
innocence to which Whittecar was entitled. Cf. State v. DeVore, 1998 MT 340, 292 Mont.
325, 972 P.2d 816 (holding that district court abused its discretion in ignoring juror's
statement that defendant must be guilty of something).

¶15 We conclude that Whittecar has failed to demonstrate that his attorney's performance
during voir dire was deficient in any manner or that his defense was prejudiced by his
attorney's acts or omissions.



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¶16 Whittecar also contends that his counsel was ineffective for "doing nothing" when,
during the early stages of voir dire, a prospective juror disclosed that he had a judgment
against Whittecar. The State points out that the very purpose of voir dire is to uncover the
existence of such matters so that interested jurors can be excused for cause. We note that
that is precisely what occurred in this case. That is, upon hearing that the panelist had a
judgment against Whittecar, the District Court immediately excused the juror without
objection or comment from either side. We conclude that defense counsel was not
ineffective for not taking some further, unspecified, action.

¶17 2. Did the District Court properly deny Whittecar's motion to sever the two counts of
theft?

¶18 Whittecar concedes the joinder of counts one and two of the Amended Information
was proper since the two counts are similar. However, he contends that the court abused
its discretion in denying his motion to sever.

¶19 A defendant seeking severance under § 46-13-211(1), MCA, bears the burden of
proving that joinder of the charges is prejudicial. It is not sufficient that he prove some
prejudice or that he stands a better chance of acquittal if separate trials are held. State v.
Richards (1995), 274 Mont. 180, 188, 906 P.2d 222, 227 (citation omitted). To satisfy his
burden, the defendant must prove that the prejudice is so great as to prevent a fair trial.
Richards, 274 Mont. at 188, 906 P.2d at 227 (citation omitted). "As a result of the
defendant's burden of proof, the strong pressure in favor of joinder of charges exerted by
considerations of judicial economy and the deference afforded trial courts, we seldom
reverse a trial court's denial of a criminal defendant's motion to sever." State v. Martin
(1996), 279 Mont. 185, 192, 926 P.2d 1380, 1385 (citation omitted).

¶20 Whittecar has not shouldered his burden of proving that the prejudice was so great as
to prevent a fair trial. He alleges in conclusory fashion that the joinder prejudiced him in
three ways: a person facing multiple charges may be considered to be a "bad man;" proof
of guilt on one count may be used to convict on a second count even though the proof
would be inadmissible at a separate trial on the second count; and other crimes evidence
was used against Whittecar on Count II even though it had only been noticed by the State
as to Count I. Finally, he asserts that there were no interests which were furthered by
joinder since none of the transactions involved had any witnesses, exhibits or evidence in
common and none were related in motive.



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¶21 In State v. Martin, we concluded that Martin had not established that prejudice had
occurred and that a "bald assertion" that the multiple charges and overlapping evidence
invited the jury to convict him is insufficient to meet his burden of demonstrating
prejudice. Martin, 279 Mont. at 192, 926 P.2d at 1385. In similar fashion, Whittecar's
conclusory assertions that the two-count information caused the jury to consider him a
"bad man," accumulate evidence against him on the two counts, and apply other crimes
evidence from one count to the other are insufficient.

¶22 In addressing the question of severance, the District Court noted that Counts I and II
were both premised upon Whittecar's obtaining services and goods by issuing checks on
closed accounts. The court concluded that the allegations of the two counts showed an
underlying scheme to defraud and were thus related and should be tried together.
Whittecar has failed to show that the District Court abused its discretion in denying his
motion to sever.

¶23 3. Did the District Court properly deny Whittecar's motion to exclude other crimes
evidence?

¶24 In April of 1996, the State gave notice of intent to introduce evidence of other crimes
pursuant to Rule 404(b), M.R.Evid. In particular, the State proposed to prove that in 1993,
Whittecar, in connection with a car trade, tendered a post-dated check for $3,000 written
on a closed account. With the help of law enforcement authorities, the matter was resolved
when Whittecar returned the car and the bad check charge which had been filed against
him was dismissed. In July 1996, the District Court, over Whittecar's objection, granted
the State's motion to use this "other crimes" evidence.

¶25 In October 1996, the State filed an Amended Information adding Count II, a second
count of felony theft, common scheme, again involving a post-dated check on a closed
account. Whittecar concedes that the District Court was correct in concluding that the first
three factors of the Matt four-part test were satisfied; that is, the evidence was similar to
the transaction charged, it was not too remote in time, and it was relevant to prove absence
of mistake or accident. State v. Matt (1991), 249 Mont. 136, 814 P.2d 52. However,
Whittecar argues that once the court granted the State permission to amend the
Information and add a second count of theft, the situation changed; the second count was,
in effect, "other crimes" evidence, added to negate any attempt to show mistake or
accident. Whittecar contends, "Once this count was added, any asserted need to prove the
1993 transaction evaporated, and at this point element four [is the probative value


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outweighed by unfair prejudice] of the Matt test was clearly no longer satisfied."

¶26 Our review of the record indicates that Whittecar did not ask the District Court to
reconsider its July 1996 ruling on the other crimes evidence after it allowed the State to
amend the Information, three months later in October 1996. Thus the question of whether
the addition of Count II vitiated any rationale for allowing the other crimes evidence in the
first instance was never presented to the trial court. Accordingly, the issue may not be
raised for the first time on appeal. See Hislop v. Cady (1993), 261 Mont. 243, 250, 862
P.2d 388, 392 (citation omitted).

¶27 The judgment of the District Court is affirmed.

                                               /S/ W. WILLIAM LEAPHART

                                                               We concur:

                                                      /S/ KARLA M. GRAY

                                                     /S/ JAMES C. NELSON

                                                         /S/ JIM REGNIER

                                                /S/ TERRY N. TRIEWEILER




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