                                          No. 02-769

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2004 MT 344


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

NATHANIEL BAR-JONAH,

              Defendant and Appellant.



APPEAL FROM:         District Court of the Eighth Judicial District,
                     In and for the County of Cascade, Cause No. ADC 2000-273(c),
                     The Honorable Kenneth R. Neill, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Gregory Jackson, Jackson Law Firm, Helena, Montana

                     Don Vernay, Attorney at Law, Rio Rancho, New Mexico

              For Respondent:

                     Hon. Mike McGrath, Attorney General; Pamela P. Collins,
                     Assistant Attorney General, Helena, Montana

                     Brant S. Light, Cascade County Attorney, Great Falls, Montana


                                            Submitted on Briefs: July 28, 2004

                                                        Decided: December 7, 2004
Filed:


                     __________________________________________
                                       Clerk
Justice John Warner delivered the Opinion of the Court.

¶1     Nathaniel Bar-Jonah (“Bar-Jonah”) appeals from a judgment and sentence entered on

May 23, 2002, in the District Court for the Eighth Judicial District, Cascade County,

convicting him of the offenses of Aggravated Kidnaping, Sexual Assault and Assault With

a Weapon and sentencing him to a total of 130 years in Montana State Prison (“MSP”) with

no eligibility for parole. We affirm.

¶2     We address the following issues on appeal:

¶3     1. Did the District Court err in denying Bar-Jonah’s motion to suppress evidence?

¶4     2. Did the District Court err in denying Bar-Jonah’s motions requesting a second

change of venue and a reordering of his trials?

¶5     3. Did the District Court err in refusing to grant Bar-Jonah’s request for additional

peremptory challenges and to strike the entire jury panel because of its exposure to pretrial

publicity?

¶6     4. Did the District Court err in admitting into evidence two photo albums containing

hundreds of photographs of children, including pictures of the victims in the present case?

¶7     5. Did the District Court err in admitting into evidence an article found in Bar-

Jonah’s apartment on how to tie ropes and knots and a pamphlet entitled, “Autoerotic

Asphyxia?”

¶8     6. Did the District Court err in refusing to strike the pre-sentence investigation report

because it was inaccurate and was prepared by a biased probation officer?

¶9     7. Did the District Court err in admitting at the sentencing hearing interviews and

testimony from victims in criminal cases in which Bar-Jonah had been convicted many years

                                               2
prior and from alleged victims of long past incidents never reported to the police?

                I. FACTUAL AND PROCEDURAL BACKGROUND

¶10    On the morning of December 13, 1999, Detective Robert Burton (“Detective

Burton”), a nine-year veteran of the Great Falls Police Department, was driving to work

when he observed Bar-Jonah walking a few blocks away from an elementary school. Burton

stated he was concerned when he saw Bar-Jonah walking in that area because he knew Bar-

Jonah had been previously convicted in Massachusetts of the kidnaping and attempted

murder of two young boys while posing as a police officer, and he had been arrested in Great

Falls in 1994 for sexual assault and charged with fondling the penis of an eight-year-old boy.

(The charges in that case were dismissed in May 1996 because the victim’s mother refused

to allow the child to testify.) Burton also stated he had observed Bar-Jonah in the same area

on two prior occasions the previous week. Burton contacted dispatch and requested a patrol

unit make contact with Bar-Jonah to find out what he was doing in the vicinity of the school.

¶11    Two Great Falls police officers responded to the call. Officer Brunk (“Brunk”) made

contact with Bar-Jonah in the 400 block of 27th Street South. It was still dark outside, so

Brunk turned on his spotlight and shined it on Bar-Jonah. Bar-Jonah was wearing a dark

blue police-style jacket, a knit cap, and he had his hands in his pockets. Brunk asked Bar-

Jonah to come to the front of the car and remove his hands from his pockets. Bar-Jonah

ignored his request even after Brunk asked him a second time to take his hands from his

pockets. At that time, Officer Badgley (“Badgley”) arrived. Brunk asked Bar-Jonah if he

had something in his pocket and Bar-Jonah responded that he had a stun gun.

¶12    Brunk had Bar-Jonah place his hands on the patrol car and Badgley did a pat down

                                              3
search for officer protection. Badgley found two cans of pepper spray, a toy gun, and a

badge. Badgley then reviewed Montana statutes regarding impersonating a police officer and

carrying a concealed weapon and contacted his shift commander, who advised him to file a

report and release Bar-Jonah pending further review.

¶13    Detective Bellusci (“Bellusci”), an eighteen-year veteran of the Great Falls Police

Department, and the investigating officer on the 1994 case against Bar-Jonah in which

charges of sexual assault were eventually dropped, followed up on the police report from the

December 13 incident. Bellusci consulted with Deputy County Attorney Julie Macek

(“Macek”). Macek believed Bar-Jonah should be charged with Impersonation of a Public

Servant (a police officer), in violation of § 45-7-209(1), MCA, and Carrying a Concealed

Weapon (the toy gun), in violation of § 45-8-316, MCA.

¶14    On December 15, 1999, Bellusci applied for a warrant to search Bar-Jonah’s

residence, and the warrant was issued. The warrant stated the police believed they had

probable cause to believe Bar-Jonah had committed the offenses of Impersonation of a Public

Servant and Carrying a Concealed Weapon. The warrant specified the police had reason to

believe they would find the following items at Bar-Jonah’s residence related to those

offenses:

       (1) a stun gun;
       (2) any police or law enforcement badges or replicas thereof or any other type
       of law enforcement identification, real or otherwise;
       (3) any police or law enforcement clothing items or replicas thereof;
       (4) any items used for purposes of detaining other individuals, including but
       not limited to handcuffs;
       (5) any guns or replicas thereof[.]

The affidavit also requested permission to search for any other items of evidence or

                                             4
contraband discovered in the lawful course and scope of the authorized search related to the

above-described offenses.

¶15      On December 15, 1999, upon execution of the search warrant, the police seized

numerous items from Bar-Jonah’s apartment, including: a blue police coat, a silver toy

revolver, a silver badge, a Stunmaster stun gun, a ball cap with the logo “security

enforcement,” two disposable cameras, two albums with cutouts of children, one coat with

a badge in the pocket and numerous photos and negatives. Bar-Jonah was subsequently

arrested and charged with Impersonation of a Public Servant and Carrying a Concealed

Weapon.

¶16      On December 17, 1999, the Cascade County Attorney applied for a second search

warrant. The application for the second warrant contained the same language as that for the

first warrant pertaining to probable cause and related to the same offenses, Impersonation of

a Public Servant and Carrying a Concealed Weapon. However, the second affidavit

requested permission to search for developed pictures of young children or adults and

undeveloped film, in addition to any other items of evidence related to the above-described

offenses. Bellusci stated he applied for the second warrant because he felt it was necessary

to gather evidence to show motive for the offenses listed in the warrant. The court signed

the warrant on that date and the police searched Bar-Jonah’s residence for the second time.

¶17      During the course of the second search, the police seized a bulletin board containing

pictures, 28 boxes of miscellaneous papers, newspaper clippings, and other miscellaneous

items.

¶18      Great Falls Police Sergeant John Cameron (“Cameron”) was then assigned to

                                               5
investigate the Bar-Jonah case. Cameron had specialized training in interviewing victims of

sexual abuse. Cameron examined all of the evidence seized from Bar-Jonah’s apartment.

One of the items recovered in the first search of Bar-Jonah’s apartment appeared to be a

victim list that Bar-Jonah had written in his own handwriting. The list contained many

names, including those of the victims from Bar-Jonah’s previous convictions in

Massachusetts, and also the name of Zachary Ramsay, a Great Falls child who disappeared

early one morning while on his way to school in 1996. While reviewing the victim list,

Cameron and FBI agent James Wilson (“Wilson”) were able to determine that two of the

names on the list belonged to children who lived in the apartment directly above Bar-Jonah.

Cameron also determined that some of the photographs from disposable cameras recovered

in the first search depicted those same two children in Bar-Jonah’s apartment, on his couch

and on his bed. The same roll of film also contained pictures of Bar-Jonah on his bed in the

nude, displaying his penis in various stages of erection. Given Bar-Jonah’s past history as

a pedophile, Cameron became concerned the children were possible victims of sexual abuse

by Bar-Jonah.

¶19    On June 29, 2000, Cameron and Wilson went to the apartment above Bar-Jonah’s to

request an interview with R.J., one of the children depicted in the photographs. Cameron

interviewed R.J., who was fourteen years old at the time. R.J. disclosed that Bar-Jonah had

sexually abused him. After interviewing R.J., Cameron and Wilson went to the residence

of R.J.’s cousin, S.J. S.J. disclosed that Bar-Jonah had also sexually abused him.

¶20    In an information filed on July 5, 2000, Bar-Jonah was charged with three counts of

Sexual Assault, one count of Aggravated Kidnaping and one count of Assault With a

                                             6
Weapon. Bar-Jonah pled “not guilty” to the charges.

¶21     On November 13, 2000, Bar-Jonah filed a Motion for Change of Venue.             In the

motion he contended, due to the publicity which linked him to the disappearance of Zachary

Ramsay (“Ramsay”), and due to the depth of feelings in Great Falls that surrounded the

emotionally charged case, he could not receive a fair trial. The District Court granted the

motion, ordering a change of venue for jury selection to Butte, Silver Bow County.

However, jurors selected from Silver Bow County would be sequestered for the actual trial,

which would be conducted in Cascade County. Trial was set to commence on January 16,

2001.

¶22     On December 6, 2000, Bar-Jonah moved to suppress the items seized during the two

searches of his residence. Before the District Court heard the Motion to Suppress, the State

of Montana filed charges against Bar-Jonah for the aggravated kidnaping and deliberate

homicide of the Ramsay boy. Upon the filing of these charges, Bar-Jonah’s counsel

withdrew due to a conflict of interest. On January 2, 2001, new counsel for Bar-Jonah was

appointed, and both the trial and the hearing on the suppression motion were vacated.

¶23     On January 17, 2001, the District Court held a status conference to address all charges

pending against Bar-Jonah. At that conference, Bar-Jonah requested the District Court set

the Ramsay homicide case for trial before the trial in the instant case due to the nationwide

publicity surrounding the Ramsay case and the seriousness of the charges. The State

objected, requesting the instant case be tried first, it being the oldest.

¶24     On April 25, 2001, the District Court issued an order setting this case for trial on

September 10, 2001, in Butte.

                                               7
¶25    On June 4, 2001, new counsel for Bar-Jonah filed a Motion to Suppress, to Dismiss

and Supporting Memorandum. Bar-Jonah moved to suppress the items seized during the two

searches of his residence on December 15 and 17, 1999, on the following basis: the searches

resulted from an invalid investigative stop on December 13, 1999; the searches were based

on stale information; the searches were pretextual; and the items seized far exceeded the

scope of the search warrant.

¶26    On July 11, 2001, Bar-Jonah filed a Motion to Continue Trial, wherein he again

requested the trial in this case be continued until after the Ramsay murder trial. Bar-Jonah

argued this was the only way he could receive a fair trial in the Ramsay case.

¶27    On July 25, 2001, the District Court held a hearing on the motions to dismiss and to

continue. The court reserved its ruling on both motions pending further briefing. Based

upon Dr. Cohen’s testimony, Bar-Jonah filed a second Motion for Change of Venue on

August 8, 2001.

¶28    On August 15, 2001, the District Court issued an order denying Bar-Jonah’s motions

for change of venue and to continue the trial.

¶29    On August 17, 2001, the District Court issued an order denying Bar-Jonah’s motion

to suppress and dismiss.

¶30    On February 11, 2002, Bar-Jonah filed another Motion for Change of Venue based

upon the high rate of prejudice indicated in the responses to juror questionnaires and upon

negative pretrial publicity. The District Court denied the motion, and on February 19, 2002,

this Court denied Bar-Jonah’s Emergency Application for Writ of Supervisory Control.

¶31    The trial commenced on February 20, 2002. During the trial, the State offered as

                                             8
evidence two photo albums containing thousands of pictures of children, among them several

photos of one of the alleged victims. Bar-Jonah objected to the exhibits, but the District

Court admitted them into evidence. The State also offered as evidence a document

containing an explanation of how to tie various knots, and an article entitled “Autoerotic

Asphyxia” found in Bar-Jonah’s apartment. Counsel for Bar-Jonah objected, but again the

District Court overruled the objection and admitted the items into evidence.

¶32   On February 25, 2002, the jury found Bar-Jonah guilty on one count each of Sexual

Assault, Aggravated Kidnaping and Felony Assault, not guilty on one count of Sexual

Assault, and was deadlocked on one count of Sexual Assault. The court declared a mistrial

on the deadlocked count and ordered a presentence report and psychosexual evaluation.

¶33   On May 23, 2002, the District Court held a sentencing hearing in Great Falls. At the

sentencing hearing, Bar-Jonah objected to the admission of pre-recorded interviews with

victims of two of Bar-Jonah’s previous convictions, Robert O’Connor (“O’Connor”) and

Allan Enrickias (“Enrickias”), on the grounds the interviews constituted improper victim

impact evidence. Bar-Jonah next objected to the admission of an interview with Dr. Eric

Sweitzer, a Massachusetts counselor whose testimony that Bar-Jonah was not a sexually

dangerous person contributed to his release from Bridgewater Treatment Center in

Massachusetts in 1991, on the grounds the interview lacked relevance. The District Court

overruled Bar-Jonah’s objections and allowed tapes of this testimony to be played and

considered.

¶34   Bar-Jonah also objected to the testimony of Dr. Robert Fournier, who claimed to have

been sexually abused by Bar-Jonah when he was a child, twenty-five years earlier. Bar-

                                            9
Jonah was never charged with any offense in such alleged incident.

¶35    Lori Kicker (“Ms. Kicker”), the probation officer who prepared the presentence

investigation and report (“PSI”), also testified at the sentencing hearing. Bar-Jonah moved

to strike the PSI as biased because Ms. Kicker made no attempt to contact any members of

his family and because he alleged she functioned as a victim’s advocate in preparing the PSI,

in spite of the statutory requirement to provide the court with an objective report and

assessment.

¶36    The District Court found Bar-Jonah is a Level III sex offender (high level to reoffend)

who poses an extreme danger to society, and his prospects for rehabilitation are virtually

non-existent. The court sentenced Bar-Jonah to MSP for 10 years for Aggravated Kidnaping,

100 years for Sexual Assault, and 20 years for Felony Assault. The sentences are to be

served consecutively with no possibility of parole. This appeal followed. Additional facts

follow as necessary.

                                    II. DISCUSSION

                                       ISSUE ONE

¶37    Did the District Court err in denying Bar-Jonah’s motion to suppress evidence?

¶38    We review a district court’s order on a motion to suppress to determine if the court’s

findings of fact are clearly erroneous, and whether those findings were correctly applied as

a matter of law. State v. Clayton, 2002 MT 67, ¶ 8, 309 Mont. 215, ¶ 8, 45 P.3d 30, ¶ 8.

¶39    Bar Jonah raises two arguments why his motion to suppress was improperly denied

by the District Court. He first argues, given the totality of the circumstances, the police

lacked the requisite particularized suspicion to conduct an investigative stop on December

                                             10
13, 1999, and thus, because the information gained in that stop was used to support the

probable cause necessary to issue the subsequent search warrants, any evidence gained as

a result of the execution of the warrants must be suppressed. Second, Bar-Jonah argues the

searches conducted on December 15 and 17, 1999, were improper because they exceeded

the scope of the search warrants, the information supporting probable cause was “stale” and

the searches were pretextual.

¶40   We conclude the District Court did not err when it denied Bar-Jonah’s motion to

suppress.

A. The Initial Stop

¶41   Bar-Jonah contends the initial stop and questioning conducted by police in the early

morning hours of December 13, 1999, constituted an improper investigative stop and police

violated Bar-Jonah’s right to be free from unreasonable searches and seizures under the

Fourth Amendment of the United States Constitution and Article II, § 11 of the Montana

Constitution.

¶42   The standards in Terry v. Ohio (1968), 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20

L.Ed.2d 889, and United States v. Cortez (1980), 449 U.S. 411, 417-18, 101 S.Ct. 690, 695,

66 L.Ed.2d 621, have been codified in Montana at § 46-5-401, MCA, as follows:

      Investigative stop. In order to obtain or verify an account of the person’s
      presence or conduct or to determine whether to arrest the person, a peace
      officer may stop any person . . . that is observed in circumstances that create
      a particularized suspicion that the person . . . has committed, is committing,
      or is about to commit an offense.

¶43   In Kleinsasser v. State, 2002 MT 36, ¶ 12, 308 Mont. 325, ¶ 12, 42 P.3d 801, ¶ 12,

we cited State v. Gopher (1991), 193 Mont. 189, 194, 631 P.2d 293, 296, wherein we set

                                            11
forth a two-part test for determining whether particularized suspicion is present. “[I]n

asserting that a law enforcement officer had the particularized suspicion to make an

investigatory stop, the State has the burden to show: (1) objective data from which an

experienced officer can make certain inferences; and (2) a resulting suspicion that the

occupant of a certain vehicle is or has been engaged in wrongdoing . . . .”1 Kleinsasser, ¶

12.

¶44    This Court has further held:

       [W]hether particularized suspicion exists is a question of fact dependent on the
       totality of the circumstances. ‘In evaluating the totality of the circumstances,
       a court should consider the quantity, or content, and quality, or degree of
       reliability, of the information available to the officer.’ When the totality of the
       circumstances does not support a particularized suspicion, the investigatory
       stop is not justified.

Kleinsasser, ¶ 13 (citations omitted). However, “[a] particularized suspicion does not

require that the law enforcement officer be certain that an offense has been committed.”

State v. Henderson, 1998 MT 233, ¶ 12, 291 Mont. 77, ¶ 12, 966 P.2d 137, ¶ 12.

¶45    Bar-Jonah argues, in viewing the totality of the circumstances, the Great Falls Police

Department lacked the requisite particularized suspicion of criminal activity to conduct an

investigative stop. Bar-Jonah alleges his conduct on the date in question provided no

objective indication of any type of criminal activity as he was simply walking down the street

a few blocks from his home, minding his own business. He points out the stop occurred at

least two blocks from the elementary school, there were no reports of children being



       1
       Although Gopher involved the stop of a vehicle, this Court has applied this
standard to non-vehicular stops. See, e.g., State v. Jarman, 1998 MT 277, 291 Mont. 391,
967 P.2d 1099.

                                               12
anywhere in the vicinity and, although the application for search warrant contained a

statement to the effect there had previously been a series of incidents reported of an unknown

male in the school area who had approached children, these reports were unsubstantiated.

Without citing any supporting case law, he argues the fact Detective Burton was familiar

with Bar-Jonah’s criminal history in and of itself is insufficient to justify an investigative

stop.

¶46     The State argues the initial contact between the officers and Bar-Jonah did not rise

to the level of an investigative stop, rather it was merely a police-citizen encounter, which

did not implicate the Fourth Amendment or Article II, Section 11 of the Montana

Constitution. See United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 1877,

64 L.Ed.2d 497 (holding the government may stop and question any individual for any

reason as long as the person to whom questions are put remains free to disregard the

questions and walk away; such an encounter is not a seizure). Citing Clayton, ¶ 27, and

State v. Wagner, 2003 MT 120, ¶ 31, 315 Mont. 498, ¶ 31, 68 P.3d 840, ¶ 31, the State

argues under the present circumstances a reasonable person would have felt free to disregard

the officer or leave. It was only when Bar-Jonah volunteered he had a stun gun in his pocket

that the encounter became an investigative stop and, at that point, the officers had the

“requisite suspicion to conduct the ensuing investigative stop or seizure.” See Wagner, ¶ 32;

Clayton, ¶ 27.

¶47     Alternatively, the State argues even if the officer’s initial encounter with Bar-Jonah

was a seizure, based on the totality of the circumstances, the officer had particularized

suspicion prior to initiating the stop based on his knowledge of Bar-Jonah’s past crimes

                                              13
against children and his observation of Bar-Jonah walking near the elementary school, while

it was still dark outside, wearing a dark police-style jacket and stocking cap, at a time when

young children would be going to school.

¶48    In denying Bar-Jonah’s Motion to Suppress, the District Court, relying on Florida

v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (holding mere police questioning

does not constitute a seizure under the Constitution), agreed with the State’s position that

the initial stop of Bar-Jonah was not an investigative stop, but was merely a police-citizen

encounter. Citing United States v. Burton (4th Cir. 2000), 228 F.3rd 524 (holding a police-

citizen encounter may become an investigative stop), the District Court concluded the matter

became an investigative detention only when Bar-Jonah admitted he was carrying a

concealed stun gun, giving “the officer grounds to not only believe that a crime was being

committed, but to conduct a protective search.” See United States v. Davis (8th Cir. 2000),

202 F.3rd 1060, 1063 (“The danger to officer safety that justifies a protective search may

arise after a consensual encounter or investigative stop has commenced”). Therefore, the pat

down search that produced the items, which together with other facts, formed the basis of

the subsequent search warrants, was justified.

¶49    We disagree with the court’s determination that the initial stop was a mere police-

citizen encounter. Under the present circumstances a reasonable person would not have felt

free to leave. In State v. Roberts, 1999 MT 59, ¶ 15, 293 Mont. 476, ¶ 15, 977 P.2d 974,

¶ 15, this Court held where a police officer who is armed and in uniform displays his

authority by exiting his patrol car and approaching a citizen, the encounter constitutes an

investigative stop, rather than a mere police-citizen encounter. In Bar-Jonah’s case, Officer

                                             14
Brunk initiated the stop by pulling his police car over to the side of the road and shining a

spotlight on Bar-Jonah in the dark. At that point, Bar-Jonah continued to walk down the

sidewalk away from Brunk. As in Roberts, Brunk, who was armed and in uniform,

demonstrated his authority over Bar-Jonah by immediately exiting his patrol car and ordering

Bar-Jonah to stop. Brunk then repeatedly requested that Bar-Jonah remove his hands from

his pockets and come to the front of the police car. When Bar-Jonah failed to comply, Brunk

asked Bar-Jonah if he had something in his pocket he needed to be concerned about. During

this time, a second uniformed officer appeared on the scene in his police car. It is clear that

under these facts, the initial contact with Bar-Jonah constituted an investigative stop and not

a voluntary encounter from which Bar-Jonah was free to leave.

¶50    The District Court was correct in concluding there were sufficient facts to support a

particularized suspicion that Bar-Jonah had or was about to commit the offense of

impersonating a police officer. In applying the totality of the circumstances test to the facts

of this case, we note that Detective Burton was an experienced officer with nine years on the

Great Falls Police Department at the time he dispatched officers to initiate a stop of Bar-

Jonah. This Court has consistently recognized that the experience of the law enforcement

officer is an important element to consider in this analysis. Gopher, 193 Mont. at 193, 631

P.2d at 295. Detective Burton, as an experienced law enforcement officer, could reasonably

surmise that Bar-Jonah had committed, was committing, or was about to commit an offense.

¶51    The police did not rely on a single factor alone to infer Bar-Jonah was involved in

criminal activity. Detective Burton believed Bar-Jonah had committed or was about to

commit the offense of Impersonating a Public Servant, in violation of § 45-7-209(1), MCA,

                                              15
which states:

       A person commits the offense of impersonating a public servant if the person
       falsely pretends to hold a position in the public service with the purpose to
       induce another individual to submit to the pretended official authority or
       otherwise to act in reliance upon that pretense to the individual's prejudice.

¶52    At the time the stop was initiated Detective Burton knew Bar-Jonah had previously

been charged with the kidnaping and attempted murder of two young children while posing

as a police officer; Burton had been involved in investigating an allegation against Bar-Jonah

of sexual assault on a youth in Great Falls; Burton observed Bar-Jonah wearing a police-style

jacket; Bar-Jonah was in the area of an elementary school where there were young children;

and Burton had observed Bar-Jonah in that same area twice in the previous week. These

known facts, combined with the deductions made in light of nine years of experience in

criminal investigation, reasonably led Detective Burton to suspect Bar-Jonah was involved

in criminal activity. Taking all of these factors together, we conclude the District Court

properly determined there were sufficient facts at the outset to support a particularized

suspicion that Bar-Jonah had or was about to commit the offense of impersonating a police

officer.

¶53    We further conclude, once Bar-Jonah was lawfully detained, the officers were

justified in conducting a pat down search for their own protection in accordance with § 46-5-

401(2), MCA. Bar-Jonah’s contention that the record does not present any evidence to

suggest officers had reasonable cause to believe he was “armed and presently dangerous” is

without merit. It is clear from the record that given Bar-Jonah’s known criminal history and

his statement that he was concealing a stun gun, the officers had sufficient reasonable cause



                                             16
to conduct the ensuing pat down search. See State v. Evans (1991), 247 Mont. 218, 226, 806

P.2d 512, 517 (where this Court held a stun gun is a weapon capable of producing serious

bodily harm as defined in § 45-2-101(71), (59), MCA).

¶54    The information gained from the investigative stop of Bar-Jonah was properly used

to establish the probable cause necessary to issue the subsequent search warrants.

B. The Search Warrants

¶55    Bar-Jonah does not challenge the validity of the search warrant issued on December

15, 1999, nor does he challenge the validity of the seizure of certain items specifically

described in that warrant, such as the stun gun, garments and badges, that clearly related to

the stated offenses of Impersonating a Public Official and Carrying a Concealed Weapon.

¶56    However, he argues the police went beyond the scope of the warrant and also seized

cameras, photo albums, film negatives and various other items that were not in any way

related to the offenses named in the search warrant. Bar-Jonah argues the evidence gathered

during the searches of his residence on December 15 and 17, 1999, should be suppressed

because the searches exceeded the scope of the search warrants, the searches were pretextual

and some of the information used to establish probable cause for the warrants was

impermissibly stale. Bar-Jonah asserts that since the seizure exceeded the scope of the

warrant, both in terms of the items seized and the offenses which were the subject of the

search, all such items must be suppressed.

¶57    We first note that “a search and seizure, whether with or without a warrant, may not

be held to be illegal if . . . any irregularity in the proceedings has no effect on the substantial

rights of the accused.” Section 46-5-103(1)(c), MCA.

                                                17
                                    Scope of the Search

¶58    Bar-Jonah alleges that certain evidence seized as a result of the searches of his

residence on December 15 and 17, 1999, should be suppressed because the searches

exceeded the scope of the warrants. He argues that “only items specifically enumerated [in

the search warrant] may be seized, and once those items are found, the search must stop.”

See United States v. Tamura (9th Cir. 1982), 694 F.2d 591, 595.

¶59    With regard to the search warrant of December 17, Bar-Jonah alleges the items

seized, including a bulletin board with pictures and 28 boxes of miscellaneous items, bore

no relationship to the stated offenses and, therefore, also exceeded the scope of the warrant.



¶60    Finally, Bar-Jonah argues the “catchall” language contained in both the December 15

and December 17 search warrants cannot justify the overbroad searches and seizures. Bar-

Jonah contends this language exceeds that authorized by § 46-5-224, MCA, which authorizes

only “evidence” or “contraband” to be seized pursuant to a warrant.

¶61    Relying on United States v. Clark (9th Cir. 1994), 31 F.3d 831 (holding a search

warrant allowing the seizure of “fruits and instrumentalities” of an offense was overbroad),

he argues, the “language in the warrant authorizing the seizure of ‘fruits’ is overbroad and

impermissible.”

¶62    The District Court correctly ruled items not described in a warrant may be seized so

long as a “reasonable relationship” exists between the items seized and the search authorized.

In denying the Motion to Suppress, the District Court stated, “[t]he officers performing the

search[es] had reason, based on their experience, to believe the items that were not listed in

                                             18
the search warrant but were seized, might indicate a motive for the offense of impersonating

an officer and would aid in the prosecution of the case.”

¶63    Consistent with the requirements of the Fourth Amendment of the United States

Constitution, Article II, Section 11 of the Montana Constitution requires:

       No warrant to search any place, or seize any person or thing shall issue
       without describing the place to be searched or the person or thing to be seized,
       or without probable cause, supported by oath or affirmation reduced to
       writing.

The requirements for issuing a search warrant in Montana are codified in § 46-5-221, MCA,

which states:

       A judge shall issue a search warrant to a person upon application . . . made
       under oath or affirmation, that:
       (1) states facts sufficient to support probable cause to believe that an offense
       has been committed;
       (2) states facts sufficient to support probable cause to believe that evidence,
       contraband, or persons connected with the offense may be found;
       (3) particularly describes the place, object or persons to be searched; and
       (4) particularly describes who or what is to be seized.

Additionally, § 46-5-224, MCA, defines what may be seized pursuant to a search warrant:

       A warrant may be issued under this section to search for and seize any:
       (1) evidence;
       (2) contraband; or
       (3) person for whose arrest there is probable cause, for whom there has been
       a warrant of arrest issued, or who is unlawfully restrained.

¶64    With respect to the items that are the subject of the search, the warrant description

must be specific enough to enable the person conducting the search reasonably to identify

the things authorized to be seized, preventing general exploratory searches and indiscriminate

rummaging through a person’s belongings. United States v. Spilotro (9th Cir. 1986), 800 F.2d

959. However, the description need only be “reasonably specific rather than elaborately

                                             19
detailed.” “The degree of specificity required is flexible and may vary depending on the

circumstances and the type of items involved.” United States v. Holzman (9th Cir. 1989), 871

F.2d 1496, 1508, overruled on other grounds.

¶65     In determining whether the scope of the search is valid, this Court has long applied

the “reasonable relationship” test set forth in State v. Quigg, 155 Mont. 119, 132, 467 P.2d

692, 699. In applying that test to the facts of this case, we agree with the District Court that

a reasonable relationship existed between the items seized and Bar-Jonah’s motive for

impersonating a police officer and carrying a concealed stun gun.

¶66    This Court has previously concluded where the items seized tend to establish whether

or not an individual had a motive to commit the enumerated crime, it is sufficient to establish

a fair probability that the items sought in a warrant application are connected to that crime.

See State v. Marks, 2002 MT 255, ¶ 19, 312 Mont. 169, ¶ 19, 59 P.3d 369, ¶ 19 (concluding

insurance and financial documents listed in the warrant were lawfully seized because they

tended to establish a motive for committing the crime of arson specified in the warrant); See

generally Andresen v. Maryland, 427 U.S. 463, 467-68, 96 S.Ct. 2737, 2742, 49 L.Ed.2d 627

(where search warrant application sought permission to search for specified documents

pertaining to the sale of a specified parcel of real estate, the Court concluded documents

seized that related to other parcels not specified in the warrant were lawfully seized to show

petitioner’s motive or intent to commit the crime stated in the warrant). The fact the items

seized may be used later to help form the evidentiary basis of another charge does not require

their suppression in the present case. Andresen, 427 U.S. at 484, 96 S.Ct. at 2750.

¶67     With respect to the search warrant of December 15, the search warrant application

                                              20
set forth the basis for the officer’s belief that Bar-Jonah may have been impersonating a

police officer and carrying a concealed stun gun on December 13, 1999, in an effort to

kidnap and either molest or murder a child. Picture albums containing hundreds of photos

of children, loose photos of children, undeveloped film and the other items at issue were

reasonably related to Bar-Jonah’s motive for impersonating a police officer and carrying a

concealed stun gun. Further, the disposable cameras and undeveloped film might reasonably

be expected to contain photos of Bar-Jonah dressed as a police officer, or photos of possible

victims of assault or molestation.

¶68    With respect to the items seized pursuant to the warrant dated December 17, it was

reasonable for the police to return to Bar-Jonah’s residence to sort through the numerous

other boxes containing photographs and paper clippings to determine if any of those items

would provide additional evidence of Bar-Jonah’s motive for impersonating a police officer.

¶69    Based on all the facts and circumstances, we conclude the description of items to be

seized contained in the December 15 and 17, 1999, warrants were specific enough to enable

the person conducting the search reasonably to identify the things authorized to be seized so

as to not violate Bar-Jonah’s constitutional rights and the officers had adequate reason to

believe, based on their experience, common sense and knowledge of Bar-Jonah’s criminal

history, that the items in question (photo albums, disposable cameras, undeveloped film, and

the three articles introduced at trial) were reasonably related to the criminal behavior

enumerated in the warrant application.

¶70    With respect to the items not entered into evidence at trial, the issue of whether their

seizure was proper is moot and any error was harmless because Bar-Jonah’s substantial

                                              21
rights were not affected. Section 46-5-103(1)(c), MCA. The fact that some of the items in

question may have later been used by police as an evidentiary basis in filing charges against

Bar-Jonah in the Ramsay case does not require us to suppress such evidence with respect to

the instant case. See Andresen, 427 U.S. at 484, 96 S.Ct. at 2750.




                                             22
                                    Pretextual Searches

¶71    Bar-Jonah next argues the searches that took place on December 15 and 17, 1999,

were both “pretextual” searches in which the police were actually seeking evidence related

to the disappearance of Ramsay. He contends the police returned the stun gun, police badge

and other items to him when they stopped him on December 13, 1999, because they intended

to use those items as a “pretext” to gain access to Bar-Jonah’s residence to search for

evidence of more serious crimes. He further contends, because the Federal Bureau of

Investigation (“FBI”) participated in both searches, the searches were a pretext to gather

evidence for the Ramsay case, as the FBI would not have involved itself had the charges

been purely for impersonating a police officer and carrying a concealed weapon.

¶72    Finally, Bar-Jonah suggests his right to privacy has been violated under the Montana

Constitution and accordingly, the evidence should be suppressed. However, Bar-Jonah does

not cite any authority for this argument, in violation of Rule 23(a)(4), M.R.App.P.

Therefore, we decline to address it on appeal.

¶73    The record does not support Bar-Jonah’s contention that the searches were pretextual.

First, Officer Badgley testified at the suppression hearing that the reason he did not arrest

Bar-Jonah on December 13 was because he was not sure if a stun gun qualified as a weapon

in Montana. Therefore, upon the advice of his superior officer, he returned the items to Bar-

Jonah and let him go home until the police had a chance to investigate the issue further. Bar-

Jonah did not present any evidence to contest this testimony. As probable cause existed for

issuance of the search warrant, the officer’s subjective intent in securing the warrant was

irrelevant. See Whren v. United States (1996), 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135

                                             23
L.Ed.2d 89 (“Subjective intentions play no role in ordinary, probable-cause Fourth

Amendment analysis”); followed in State v. Farabee, 2000 MT 265, ¶ 29, 302 Mont. 29, ¶

29, 22 P.3d 175, ¶ 29 (“We have never held . . . that an otherwise objectively justifiable

traffic stop is nonetheless unlawful because a law enforcement officer used the stop to

investigate a hunch about other criminal activity”).

¶74    Even were we to consider a subjective motive of law enforcement in securing the

warrants, a search is “pretextual” only when the motivation or primary purpose of the

arresting officers is to arrest a defendant for a minor offense so as to allow police to search

for evidence of some other unrelated offense for which the police lack probable cause to

arrest or search. United States v. Mota (9th Cir. 1993), 982 F.2d 1384, 1386. Here, as in

Mota, the fact that Bar-Jonah was arrested for one offense, but the searches revealed

evidence that may have supported the charge of an even more serious offense, is not

sufficient to conclude the searches were pretextual. Further, the searches were “reasonably

related” to the nature and purpose of Bar-Jonah’s subsequent arrest for Impersonating a

Public Official and Carrying a Concealed Weapon. Additionally, the two-day delay in

obtaining a search warrant was justified by the officer’s desire to ensure Bar-Jonah could be

properly arrested for the offenses stated in the warrant. Once officers were sure of the law

in this regard, they acted with due diligence to execute the search warrant to secure the

evidence necessary to charge Bar-Jonah with those offenses. See Williams v. United States

(9th Cir. 1969), 418 F.2d 159, 161. Accordingly, we hold the searches of Bar-Jonah’s

residence on December 15 and 17 were not pretextual.




                                              24
                                      Stale Information

¶75    Bar-Jonah contends information in the applications for the December 15 and 17

search warrants was “stale” and could not be used to support probable cause. He argues the

only instance the police could point to in which he utilized a “police badge” in the

commission of a crime occurred 22 years prior. He also argues the police should not have

relied on his 1993 arrest for sexual assault in support of the application because the case was

dismissed in May 1996, and the charge was therefore unsubstantiated. He argues that under

any legal standard, the information was “stale.”

¶76    Contrary to Bar-Jonah’s contention that the information in the applications for search

warrant is stale under “any standard,” applying the appropriate standard in Montana to the

facts in this case, we hold the information was not stale, and thus was proper for use in

supporting a determination of probable cause.

       A determination of whether information is too stale to be considered in
       establishing probable cause depends largely on the nature of the activity at
       issue. Where criminal activity is continuing in nature, information which
       would be stale when considered individually will carry greater weight in a
       probable cause determination when combined with more recent information.
       [Citations omitted.]

State v. Anderson, 1999 MT 60, ¶ 14, 293 Mont. 490, ¶ 14, 977 P.2d 983, ¶ 14; See also

State v. O’Neill (1984), 208 Mont. 386, 395, 679 P.2d 760, 765.

¶77    In Anderson this Court concluded that where an informant provided information

related to the defendant’s drug-related activities between 7 and 10 months prior to the search

and seizure, the defendant had drug-related arrests 5 years and again 7 months prior to the

search; and during the search, drugs were discovered in the trailer where Anderson was



                                              25
staying, a “pattern of continuous conduct” was demonstrated and the information was not

stale for purposes of determining probable cause. Anderson, ¶ 14.

¶78    Similarly, in Bar-Jonah’s case, the warrant applications established Bar-Jonah was

a sexual offender whose prior convictions for kidnaping and attempted murder entailed the

use of a police badge and handcuffs, making it reasonable for the police to conclude his

modus operandi in gaining the confidence of young children was to impersonate a police

officer; he was arrested again in 1993 for the sexual assault of a child, but the charges were

subsequently dismissed; when police encountered Bar-Jonah near the elementary school on

December 13, 1999, he was wearing a police-style jacket and was carrying a badge, stun gun

and pepper spray. Taken together, these facts demonstrate a “pattern of continuous conduct”

sufficient to support probable cause.

¶79    Therefore, we agree with the District Court “[t]he fact that the information of Mr.

Bar-Jonah’s prior conduct spanned a time frame from 1977 to 1993 does not disqualify it

from being valid data to be considered with more recent information in determining whether

or not a search warrant should be issued, and thus it is not impermissibly stale as the

Defendant contends.” Further, under the totality of the circumstances test set forth in Illinois

v. Gates (1983), 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, and adopted in Montana in

Gopher, these facts were sufficient to establish probable cause.

                                        ISSUE TWO

¶80    Did the District Court err in denying Bar-Jonah’s motions requesting a second

change of venue and a reordering of the trials?

¶81    In reviewing a district court’s denial of a motion for change of venue, this Court has

                                              26
held that it will only reverse the District Court’s decision upon a showing of an abuse of

discretion. State v. Hill, 2000 MT 308, ¶ 50, 302 Mont. 415, ¶ 50, 14 P.3d 1237, ¶ 50. Our

standard in reviewing a district court's denial of a motion for continuance is whether the

district court abused its discretion. State v. Root, 1999 MT 203, ¶ 13, 296 Mont. 1, ¶ 13, 987

P.2d 1140, ¶ 13.

¶82    Section 46-13-203, MCA, provides for a change in the place of a criminal trial:

       (1) The defendant or the prosecution may move for a change of place of trial
       on the ground that there exists in the county in which the charge is pending
       such prejudice that a fair trial cannot be had in the county.
       (2) If the District Court determines that there exists in the county in which the
       prosecution is pending such prejudice that a fair trial cannot be had, the
       District Court shall:
                (a) transfer the cause to any other county in which a fair trial may be
                had;
                (b) direct that a jury be selected in any county where a fair trial may be
                had and then returned to the county where the prosecution is pending
                to try the case; or
                (c) take any other action designed to ensure that a fair trial may be had.

¶83    Mere allegations of prejudicial pre-trial publicity are an insufficient basis on which

to grant a motion for change in the place of trial. Rather, facts must be shown creating a

“reasonable apprehension” that a fair trial cannot be had. See State v. Link (1991), 194

Mont. 556, 560, 640 P.2d 366, 368. The defendant must show the pre-trial publicity actually

inflamed community prejudice to such an extent the defendant is denied a fair trial. State

v. Moore (1994), 268 Mont. 20, 51, 885 P.2d 457, 477, overruled on other grounds.

¶84    Based on the testimony of Dr. Allan Cohen (“Cohen”), his jury consultant in the

Ramsay case, Bar-Jonah contends the adverse publicity in this case was “inflammatory” and

prejudiced the community to the extent that “a clear and present danger” existed to Mr. Bar-



                                               27
Jonah’s right to a fair trial in Silver Bow county. Therefore, the District Court erred in not

granting Bar-Jonah’s motion to continue and second motion for change of venue. Bar-Jonah

also argues a “majority of the jurors had prior specific knowledge either of the pending

homicide charges or of Mr. Bar-Jonah’s criminal history . . . adding to the highly charged

atmosphere that surrounded the trial of this case.”

¶85    Our review of Dr. Cohen’s testimony and media penetration study, upon which Bar-

Jonah relies, leads us to the conclusion that the District Court did not abuse its discretion in

deciding, while facts reported in the media relating to the alleged kidnaping, murder and

cannibalism of Zachary Ramsay could not help but arouse strong feelings in the community

against Bar-Jonah, the news reporting did not go beyond the objectivity expected of the

press. For example, Dr. Cohen suggests in his survey the news articles prejudiced Bar-Jonah

by including “sullen-looking” pictures of him next to smiling pictures of Zachary Ramsay.

However, we conclude these pictures were not prejudicial or inflammatory.

¶86    Additionally, while Dr. Cohen’s survey indicated the media penetration in Cascade

and Silver Bow Counties was higher than in Yellowstone County, even Dr. Cohen admitted

if the trial had been moved a second time to Yellowstone County, the media coverage would

have increased there as well. Therefore, we agree with the District Court that moving the

trial a second time from Silver Bow to Yellowstone County would have served no useful

purpose.

¶87    Furthermore, § 46-13-203(2), MCA, preserves the court’s options to take any other

action, short of a change of venue, to ensure he would receive a fair trial. The District Court

took the appropriate steps to ensure that he would still receive a fair trial. For example, the

                                              28
court granted the initial change of venue from Cascade County, where the majority of the

media coverage took place, to Silver Bow County; the court issued an extensive

supplemental jury questionnaire that was jointly prepared by the State and Bar-Jonah’s

defense counsel; and the court allowed liberal individual voir dire on the issues that would

tend to expose whether or not prospective jurors were so biased they could not lay aside their

pre-trial opinions and render a verdict based on the evidence presented in court.

¶88    Following our decision in State v. Sullivan (1994), 266 Mont. 313, 321, 880 P.2d 829,

834-35, we decline to find an abuse of discretion based on the mere existence of any

preconceived notion as to the guilt or innocence of an accused, rather, we hold, sufficient

impartiality is established if the juror can lay aside his opinion and render a verdict based on

the evidence presented. See also State v. Armstrong (1980), 189 Mont. 407, 422-23, 616

P.2d 341, 350 (holding the district court properly denied Armstrong’s motion for an opinion

survey where the court gave Armstrong the opportunity to dig out and expose, through voir

dire examination, any bias or prejudice that would have prevented a fair trial and the voir

dire examination failed to reveal any such prejudice); State v. Falls Down, 2003 MT 300, ¶

27, 318 Mont. 219, ¶ 27, 79 P.3d 797, ¶ 27 (potential juror was not subject to removal for

cause in prosecution for deliberate homicide even though she assumed the defendant was

guilty when she first read about the incident, because she said she could follow the court's

instructions in basing her decision solely on evidence presented in the courtroom). Nothing

in the record indicates the jurors in Bar-Jonah’s case failed to decide the issues based solely

on the evidence presented at trial.

¶89    Additionally, Bar-Jonah has failed to demonstrate that he was prejudiced by the

                                              29
decision to hold the trial in Butte. Bar-Jonah concedes that during voir dire, each juror

assured that they would act with impartiality. The jury’s impartiality was evidenced in the

fact that the jury deadlocked on one count of sexual assault and acquitted Bar-Jonah of one

count of sexual assault. A judgment may not be reversed by reason of any error committed

by the trial court against the convicted person unless the record shows that the error was

prejudicial. Section 46-20-701(2), MCA.

¶90     Regarding the motion to continue, which requested that the trial in this case be

postponed until after the Ramsay trial, the record shows that Bar-Jonah’s motion was based

on his concern that his trial in this case could prejudice his trial in the Ramsay capital

homicide case, not the other way around. That case was ultimately dismissed. So, Bar-

Jonah obviously cannot establish that the order of the trials adversely affected him. In any

case, the District Court did not abuse its discretion in setting the trial in the instant case first,

as this case was filed before the Ramsay case; the alleged victims were children whose

memories could be affected by further delay; and the victims were entitled to a timely

resolution of their allegations against Bar-Jonah.

                                         ISSUE THREE

¶91    Did the District Court err in refusing to grant Bar-Jonah’s request for additional

peremptory challenges and to strike the entire jury panel for its exposure to pretrial

publicity?

¶92    Bar-Jonah asserts the pre-trial publicity in this case made it impossible for him to

select an impartial jury. Therefore, he argues, his motion to strike the entire jury panel should

have been granted. He further asserts, in spite of the statutory grant of an equal number of

                                                 30
peremptory challenges to the defense and prosecution in a non-capital criminal case, the

District Court should have granted him additional peremptory challenges to assist his counsel

in selecting a jury “untainted by the hoards of negative publicity.” Finally, Bar-Jonah asserts

the failure of the court to grant his motion for additional peremptory challenges violated his

right to a fair and impartial trial by jury under the Sixth and Fourteenth Amendments of the

United States Constitution and Article II, Sections 17 and 24 of the Montana Constitution,

and that his constitutional rights should have taken precedence over the controlling statute,

§ 46-16-116, MCA.

¶93    The State argues Bar-Jonah is barred from raising the constitutional challenge on

appeal because he did not make this argument in the court below. The rule is well

established that a party may not raise new arguments or change his legal theory on appeal.

State v. Heath, 2004 MT 58, ¶ 39, 320 Mont. 211, ¶ 39, 89 P.3d 947, ¶ 39. While this Court

may discretionarily review claimed errors that implicate a criminal defendant’s fundamental

constitutional rights, even if no contemporaneous objection is made, we decline to do so

here, as our refusal to do so will not result in a manifest miscarriage of justice. See State v.

Finley (1996), 276 Mont. 126, 137, 915 P.2d 208, 215, overruled on other grounds.

¶94    Further, Bar-Jonah offers no legal support for his theory that the District Court abused

its discretion when it declined to allow him additional peremptory challenges beyond the six

provided by statute.     Rule 23(a)(4), M.R.App.P., states the argument portion of an

appellant’s brief “shall contain the contentions of the appellant with respect to the issues

presented, and the reasons therefor, with citations to the authorities, statutes and pages of the

record relied on.” See Heath, ¶ 32. Absent any citation of authority, we decline to address

                                               31
this issue. See, e.g., State v. Strauss, 2003 MT 195, ¶ 51, 317 Mont. 1, ¶ 51, 74 P.3d 1052,

¶ 51.

¶95     With regard to Bar-Jonah’s motion to strike the entire jury panel, Bar-Jonah does not

even allege why any individual juror should have been excused for cause, much less the

entire panel. He received assurances from each prospective juror that he or she would act

impartially. Nevertheless, Bar-Jonah has failed to cite authority for his contention. Again,

we decline to address an issue when the appellant fails to cite supporting authority. See State

v. Ellenburg, 2000 MT 232, ¶ 49, 301 Mont. 289, ¶ 49, 8 P.3d 801, ¶ 49. On this basis, we

refuse to conclude the District Court erred when it denied Bar-Jonah’s motion to strike the

entire jury panel.

                                        ISSUE FOUR

¶96     Did the District Court err in admitting two photo albums containing hundreds of

photographs of children, including pictures of the child victims in the present case?

¶97     Rulings regarding the admissibility of evidence are left to the sound discretion of the

trial court, and will not be overturned absent a showing of manifest abuse of discretion.

State v. Ford (1996), 278 Mont. 353, 361, 926 P.2d 245, 250. It is also well-established that

a district court’s weighing of potential prejudice against probative value will be upheld

absent an abuse of discretion. State v. Laird (1987), 225 Mont. 306, 312, 732 P.2d 417, 421.

This Court also applies the abuse of discretion standard when reviewing a trial court’s

decision on whether to admit evidence of other crimes, wrongs, or acts. State v. Aakre, 2002

MT 101, ¶ 8, 309 Mont. 403, ¶ 8, 46 P.3d 648, ¶ 8.

¶98     Bar-Jonah argues the District Court erred when it admitted into evidence two photo

                                              32
albums containing hundreds, possibly thousands, of pictures of young children, only a few

of which were of the alleged victims in this case. First, he argues the albums should not have

been admitted because the photos of children other than the alleged victims were not

relevant. Second, he argues the albums should not have been admitted because Bar-Jonah

submitted two motions in limine to keep them out and the State had given prior assurances

that it would not introduce any evidence of other crimes, wrongs or acts, under Rule 404(b),

M.R.Evid. Third, he argues the albums should not have been admitted because they were

highly prejudicial and were therefore inadmissible under Rule 403, M.R.Evid. Fourth, he

argues the albums should not have been admitted because they were inadmissible character

evidence under Rule 404(b), M.R.Evid. Bar-Jonah contends, the admission of this evidence

was even more egregious because the prospective jurors had prior knowledge of his criminal

history or of the horrendous charges pending against him in the Ramsay case. He argues the

evidence branded him as a pedophile and influenced the jury to convict him for “who he is,

rather than for what he allegedly had done.” Bar-Jonah makes these assertions citing the

“Modified Just Rule.”2

¶99    Rule 401, M.R.Evid., defines relevant evidence as:

       [E]vidence 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

       2
        The “Modified Just Rule” was adopted in State v. Matt (1991), 249 Mont. 136,
814 P.2d. 52, and sets forth the criteria for admitting evidence of other crimes, wrongs, or
acts under Rules 404(b) and 403, M.R.Evid., as follows: The other crimes, wrongs or acts
must be (1) similar and (2) not too remote in time; (3) the evidence of other crimes,
wrongs or acts is not admissible to prove the character of a person to show action in
conformity with such character, but may be admissible for other purposes, such as proof
of motive . . . and (4) although relevant, the evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice . . . .

                                             33
       than it would be without the evidence. Relevant evidence may include
       evidence bearing upon the credibility of a witness or hearsay declarant.

This standard is meant to allow wide admissibility of circumstantial evidence limited only

by Rule 403, M.R.Evid., or other special relevancy rules. State v. Buckingham (1989), 240

Mont 252, 259, 783 P.2d 1331, 1336. Additionally, in Havens v. State (1997), 285 Mont.

195, 200, 945 P.2d 941, 944, this Court set forth the rule that evidence is relevant and

admissible if the state is able to demonstrate a link between the evidence and the fact or

element in question. See also State v. Ingraham, 1998 MT 156, ¶ 42, 290 Mont. 18, ¶ 42,

966 P.2d 103, ¶ 42.

¶100 In Laird, 225 Mont. at 312, 732 P.2d at 421, this Court held “dirty” magazines found

during a search of Laird’s apartment were relevant because they tended to buttress the

victim’s credibility. In State v. Hall (1990), 244 Mont. 161, 169-70, 797 P.2d 183, 188-89,

we held the trial court in a child sexual assault case did not abuse its discretion by finding

relevant the testimony of a police officer who stated the defendant told him he had

masturbated the day before the assault in the same storage room where the assault took place

because the evidence was useful in establishing why police had concentrated on the

defendant as opposed to other persons who had been patrons of the library at or near the time

in question. Similarly, in Ford, 278 Mont. at 363, 926 P.2d at 250, this Court held evidence

of Ford’s sexual preference was relevant because he was charged with sexual intercourse

without consent of a person of the same gender. The evidence that Ford was bisexual was

relevant to whether Ford fit the profile of someone who would commit the act for which he

was accused.



                                             34
¶101 Bar-Jonah’s contention that the albums were not relevant is simply not supported by

the record or the pertinent case law. The State proved the relevancy of the photo albums by

linking them to Bar-Jonah’s motive for befriending the boys, for enhancing the credibility

of the victim witnesses, and to rebut Bar-Jonah’s asserted defenses.

¶102 We also conclude the District Court did not abuse its discretion because admission

of the photo albums was not unfairly prejudicial under Rule 403, M.R.Evid. In Ford, this

Court held the probative value of the evidence that Ford was bisexual was not substantially

outweighed by the danger of unfair prejudice. Ford, 278 Mont. at 363, 926 P.2d at 251.

Similarly, in Laird, this Court held since the      “dirty” magazines were necessary to

corroborate the victim’s testimony, they were not unfairly prejudicial, and it was within the

trial court’s discretion to allow their admission as physical evidence. Laird, 255 Mont. at

312, 732 P.2d at 421.

¶103 We conclude the facts in this case are not dissimilar to those in Ford and Laird.

Therefore, we hold that on balance, the District Court did not commit error in finding the

probative value of the photo albums outweighed any prejudice to Bar-Jonah in introducing

them into evidence. We further hold the photo albums did not constitute impermissible

evidence of other crimes, wrongs or acts as asserted by Bar-Jonah.

¶104 Even if the photo albums could be construed to reflect on Bar-Jonah’s character, they

were clearly not offered for that purpose. Rather, the record reflects the albums were

primarily offered as proof of Bar-Jonah’s motive to befriend young boys. As such, it

squarely falls under the exception to the inadmissibility of character evidence provided for

in Rule 404(b), M.R.Evid. Furthermore, as we held in State v. Daniels, 2003 MT 247, ¶ 45,

                                             35
317 Mont. 331, ¶ 45, 77 P.3d 224, ¶ 45, Rule 404(b), M.R.Evid., is not applicable simply

because the evidence implies the defendant is of bad character.




                                           36
                                       ISSUE FIVE

¶105 Did the District Court err in admitting into evidence an article found in Bar-

Jonah’s apartment on how to tie rope knots and a pamphlet entitled, “Autoerotic

Asphyxia”?

¶106 Rulings regarding the admissibility of evidence are left to the sound discretion of the

trial court, and will not be overturned on appeal absent a showing of manifest abuse of

discretion. Ford, 278 Mont. at 361, 926 P.2d at 250.

¶107 Bar-Jonah contends the District Court erred when it admitted into evidence three of

the State’s exhibits in spite of Bar-Jonah’s objections that the exhibits constituted hearsay,

lacked foundation, were irrelevant and were highly prejudicial. All three exhibits in question

were seized during the searches of Bar-Jonah’s residence in December 1999. The first

exhibit, Exhibit 91, is an article entitled “The Right Ropes, The Top Knots,” which contained

an explanation, ten diagrams and instructions on how to tie knots. The other two exhibits

are Exhibit 92-A, a pamphlet entitled “AutoErotic Asphyxia,” and 92-B, an envelope

addressed to Bar-Jonah from “Bereaved Parents, Inc.,” the organization that generated the

pamphlet.

¶108 Bar-Jonah further argues the doctrine of cumulative error should apply in this case to

warrant a reversal of the judgment. The doctrine of cumulative error refers to a number of

errors, which taken together, prejudice a defendant’s right to a fair trial. State v. Ottwell

(1989), 239 Mont. 150, 157, 779 P.2d 500, 504. Under this doctrine, once such accumulated

errors are identified as having prejudiced a defendant’s right to a fair trial, reversal is

required. State v. Enright, 2000 MT 372, ¶ 34, 303 Mont. 457, ¶ 34, 16 P.3d 366, ¶ 34.

                                             37
¶109 The trial court overruled Bar-Jonah’s objections to all three exhibits. The court

agreed with the State’s argument that Exhibit 91 was directly relevant to the incident in

which Bar-Jonah allegedly put a noose around S.J.’s neck and hung him from the ceiling.

The court also agreed with the State’s argument that Exhibits 92-A and 92-B were relevant

because they talked about tying a noose around one’s neck to gain sexual arousal. In

overruling Bar-Jonah’s objections, the court also ruled the exhibits did not constitute

hearsay.

¶110 Bar-Jonah now argues the District Court’s ruling that Exhibit 93, an article on

autoerotic death, was inadmissible, proves that the District Court improperly admitted

Exhibits 92-A and 92-B, which contained similar content, thereby justifying a reversal in this

case.

¶111 With respect to Exhibit 91, it is clearly relevant and admissible to corroborate S.J.’s

testimony that Bar-Jonah placed a rope around his neck and hung him from the ceiling. It

did not constitute hearsay as its purpose was not to prove that the ropes were the “right ones”

and the knots were the “top knots,” but to show that Bar-Jonah was interested in ropes and

knots. The District Court did not err in admitting Exhibit 91.

¶112    In spite of Bar-Jonah’s failure to include in the record a copy of Exhibit 93, upon our

review of the record and of the content of Exhibits 92-A and 92-B, we conclude the District

Court did not err in finding Exhibits 92-A and 92-B were relevant to corroborate the

testimony of S.J. that Bar-Jonah put a rope around his neck and choked him. These exhibits

do not constitute hearsay, as they were offered to prove Bar-Jonah performed the act of

choking S.J., not to prove the truth of the contents of the exhibits. Also, the District Court

                                              38
was in a better position than this Court to determine whether the content of Exhibit 93 was

sufficiently different in nature from the content of Exhibits 92-A and 92-B to justify the

court’s admission of these exhibits, while excluding Exhibit 93.

¶113 Since Bar-Jonah was not prejudiced by the errors alleged, we will not apply the

doctrine of cumulative error.

                                         ISSUE SIX

¶114 Did the District Court err in refusing to strike the pre-sentence investigation and

report because Bar-Jonah alleged it was inaccurate and was prepared by a biased

probation officer?

¶115 This Court reviews a District Court’s imposition of sentence for legality only. State

v. Montoya, 1999 MT 180, ¶ 15, 295 Mont. 288, ¶ 15, 983 P.2d 937, ¶ 15. On sentencing

questions regarding statutory interpretation, we review the trial court's interpretation of the

law to determine whether it is correct. Montoya, ¶ 16. When the issue on appeal concerns

whether the district court violated the defendant's constitutional rights at sentencing, the

question is a matter of law which we review de novo to determine whether the district court's

interpretation of the law is correct. State v. Mason, 2003 MT 371, ¶ 19, 319 Mont. 117, ¶

19, 82 P.3d 903, ¶ 19.

¶116 Bar-Jonah alleges the District Court erred in not granting his motion to strike the PSI

because the probation officer, Ms. Kicker, did not contact Bar-Jonah’s family in preparing

the social history. He argues this shows the PSI was inaccurate, and that Ms. Kicker was

unfairly biased. Bar-Jonah also argues such bias is shown because Ms. Kicker testified one

of her roles in preparing the PSI was to act as a victim’s advocate.

                                              39
¶117 The District Court did not err in denying Bar-Jonah’s motion to strike the PSI.

Section 46-18-111(1), MCA, requires the district court to direct a probation officer to prepare

a PSI when a defendant is found guilty of a felony offense. The district court is required to

“consider” the PSI prior to sentencing, § 46-18-111(1), MCA, however, there is “no

requirement that the sentencing judge adopt the recommendation of the [PSI].” State v.

McPherson (1989), 236 Mont. 484, 491, 771 P.2d 120, 124, overruled on other grounds.

Section 46-18-112, MCA, requires the probation officer to “promptly inquire into and report

on” such things as “the defendant’s criminal record and social history” and “the harm caused,

as a result of the offense, to the victim, the victim’s immediate family, and the community.”

¶118 The statute does not specify how the probation officer is to go about compiling this

information. Bar-Jonah would have this Court believe that in compiling the social history,

the probation officer is required by statute to make direct contact with the defendant’s

family. This requirement is neither stated in the plain language of the statute, nor is it

implied. This Court has never held that in preparing the PSI, the probation officer is required

to contact the defendant’s family members. The standard set forth repeatedly by this Court

is that "a defendant is entitled to have his sentence predicated on substantially correct

information." See, e..g., McPherson, 236 Mont. at 490, 771 P.2d at 123-24. We have further

held, “[this] Court, however, will not strain at worst-case assumptions in order to find a

mistake and we presume the District Court to be correct.” McPherson, 236 Mont. at 490,

771 P.2d at 124.

¶119 Here, the District Court based its sentence on a PSI prepared by defendant's probation

officer, as required by § 46-18-111, MCA; on the psychological evaluations of Bar-Jonah’s

                                              40
own psychologists, Drs. Beljan and Espy; and on the sexual offender report prepared by Dr.

Michael Scolatti. We hold that these documents adequately substantiate the court's rationale

and that they come within the purview of substantially correct information as required by this

Court.

¶120 With regards to the alleged bias of Ms. Kicker in preparing the PSI, Bar-Jonah’s

allegation that he is entitled to be re-sentenced because Ms. Kicker somehow infected the

court with a bias against him is not supported by the record. As stated above, a convicted

defendant has a due process right against a sentence predicated on misinformation. Mason,

¶ 21; Kills on Top v. State, 2000 MT 340, ¶ 67, 303 Mont. 164, ¶ 67, 15 P.3d 422, ¶ 67.

However, the defendant is under an affirmative duty to show the alleged misinformation is

materially inaccurate or prejudicial before a sentence will be overturned. Mason, ¶ 21; Kills

on Top, ¶ 67. A mere claim the information is invalid is insufficient. State v. Radi (1979),

185 Mont. 38, 41, 604 P.2d 318, 320. The District Court record is void of any indication the

court relied on materially inaccurate or unreasonably biased information in sentencing Bar-

Jonah. On the contrary, Bar-Jonah’s counsel admitted at the sentencing hearing that all of

the experts making recommendations to the court, including Bar-Jonah’s own experts,

testified that Bar-Jonah should receive the maximum sentence of 130 years. The only

question, according to Bar-Jonah, was whether he should serve his time in MSP or at Warm

Springs. The District Court concluded from all of the reports and evidence presented at the

sentencing hearing:

         [Bar-Jonah] is a repeat offender almost certain to offend again if given the
         opportunity; did not suffer from a mental disease or defect at the time of
         commission of these acts such that he was unable to appreciate the criminality

                                              41
       of his acts or conform his behavior to the requirements of the law; does not
       accept responsibility for his acts; is unlikely to respond to or even cooperate
       with treatment; and is an extreme danger to society. The prospects of
       rehabilitation are virtually non-existent.

¶121 Additionally, Bar-Jonah was provided a copy of the PSI before the sentencing hearing.

The court provided him the opportunity to explain, argue and rebut the information contained

therein. We conclude that Bar-Jonah has not proven Ms. Kicker was biased in her

preparation of the PSI or that the sentencing court abused its discretion in sentencing Bar-

Jonah. Accordingly, Bar-Jonah is not entitled to be re-sentenced.

                                      ISSUE SEVEN

¶122 Did the District Court err in admitting interviews and testimony at the sentencing

hearing from victims in criminal cases in which Bar-Jonah had been convicted many

years prior and from alleged victims of long past incidents never reported to the police?

¶123 Bar-Jonah contends his right to confront and cross-examine witnesses under Article

II, Section 24 of the Montana Constitution and the Sixth and Fourteenth Amendments of the

United States Constitution were violated when the sentencing court allowed testimony from

three witnesses who, according to Bar-Jonah, had “no connection whatsoever to the offenses

of which [he] was convicted,” and whom he had no chance to cross-examine. Bar-Jonah also

argues his rights were violated because he was not provided with any notice of the testimony

from these witnesses, and because the court allowed testimony from Dr. Fournier, who

claimed to have been sexually assaulted by Bar-Jonah over 30 years ago, but who never

reported this event to the police.

¶124    We reject Bar-Jonah’s argument that his constitutional right to confront and cross-


                                             42
examine witnesses was violated at the sentencing hearing. Bar-Jonah failed to object on this

ground in the court below, thereby waiving his right to appeal on this issue. As stated with

regard to Issue Three of this Opinion, the rule is well established that a party may not raise

new arguments or change his legal theory on appeal. Heath, ¶ 39. While this Court may

discretionarily review claimed errors that implicate a criminal defendant’s fundamental

constitutional rights, even if no contemporaneous objection is made, we decline to do so

here, as our refusal to do so will not result in a manifest miscarriage of justice. See Finley,

276 Mont. at 137, 915 P.2d at 215.

¶125 We conclude the District Court did not err in considering the testimony of these three

witnesses.

                                    III. CONCLUSION

¶126 Based on the foregoing, we affirm the judgment and sentence of the District Court.


                                                   /S/ JOHN WARNER



We Concur:

/S/ KARLA M. GRAY
/S/ JIM REGNIER
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART




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