                               No. 13682
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1978


THE STATE OF MONTANA,
                         Plaintiff and Respondent,
          -vs-
JOSEPH E. BABELLA,
                         Defendant and Appellant.


Appeal from:      District Court of the First Judicial District,
                  Honorable Gordon R. Benett, Judge presiding.
Counsel of Record:
     For Appellant:
         Peter M. Meloy argued, Helena, Montana
     For Respondent:
         Hon. Mike Greely, Attorney General, Helena, Montana
         Charles A. Graveley argued, County Attorney, Helena,
          Montana


                                      Submitted:      June 6, 1978
                                          Decided:   JUL   ., l37Q
            ;-
Filed: ,ju$ - ,   YjTF
Mr.    J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e C o u r t .



           his i s a n a p p e a l from a judgment i n t h e D i s t r i c t

Court, ~ e w i s
               and C l a r k County, e n t e r e d upon a j u r y v e r d i c t

c o n v i c t i n g d e f e n d a n t o f t h e c r i m e of o b s t r u c t i n g j u s t i c e , i n
v i o l a t i o n of s e c t i o n 94-4-303 ( 2 ) ( a ) , R.C.M.            1947.

         On October 2 , 1976, t h e Lewis and C l a r k County Sher-
i f f ' s Department r e c e i v e d i n f o r m a t i o n t h a t one Duffy C h e v a l l i e r ,
wanted by p o l i c e f o r t h e a l l e g e d commission of two f e l o n y

o f f e n s e s , w a s p r e s e n t a t t h e r e s i d e n c e a t 2952 Flamingo
D r i v e , Helena, Montana.

        Two members o f t h e L e w i s and C l a r k County s h e r i f f ' s
auxiliary, Harold Watson and L a r r y Heigh, approached t h e

r e s i d e n c e and knocked on t h e d o o r .              Deputy Watson was m e t a t

t h e d o o r by Toni M a l l a r y .         Deputy Watson t e s t i f i e d h e i d e n t i -
f i e d h i m s e l f a s a n o f f i c e r and s t a t e d h e had a w a r r a n t f o r

t h e a r r e s t of C h e v a l l i e r .    Toni M a l l a r y i n d i c a t e d s h e had

n o t s e e n C h e v a l l i e r f o r a c o u p l e of weeks.             Deputy Watson

f u r t h e r t e s t i f i e d t h a t defendant, Joseph Babella, w a s i n s i d e

t h e r e s i d e n c e and a p p r o x i m a t e l y one f o o t away from him a t

t h e t i m e h e s t a t e d h e w a s l o o k i n g f o r and had a w a r r a n t f o r

t h e a r r e s t of C h e v a l l i e r .

        Both Toni M a l l a r y and d e f e n d a n t d e n i e d s e e i n g C h e v a l l i e r .

Subsequently, t h e o f f i c e r s , i n checking t h e surrounding

a r e a , n o t i c e d C h e v a l l i e r peeking o u t of a window i n t h e
r e s i d e n c e . The o f f i c e r s c a l l e d f o r a s s i s t a n c e .   Upon t h e
a r r i v a l of S h e r i f f Rick Westlund and L i e u t e n a n t ~ i c h a r d
Hammerbacker, a s e a r c h of t h e t r a i l e r was conducted.                          A t

t r i a l , Hammerbacker t e s t i f i e d he a l s o i n d i c a t e d t o ~ o n i

M a l l a r y and d e f e n d a n t t h a t h e had a w a r r a n t f o r t h e a r r e s t
of C h e v a l l i e r .   However, n e i t h e r o f f e r e d i n f o r m a t i o n t h a t

Chevallier w a s , i n f a c t , within t h e residence.                          During t h e

s e a r c h , C h e v a l l i e r was d i s c o v e r e d h i d i n g under a couch i n

t h e l i v i n g room.

        Both Toni M a l l a r y and d e f e n d a n t t e s t i f i e d t h e y w e r e

n e v e r informed, by t h e o f f i c e r s o r o t h e r w i s e , t h a t t h e r e

e x i s t e d a w a r r a n t f o r t h e a r r e s t of C h e v a l l i e r , o r t h a t h e

was wanted by p o l i c e .
        P r i o r t o t r i a l d e f e n d a n t s u b m i t t e d a motion i n l i m i n e

seeking t o prevent t h e i n t r o d u c t i o n of evidence:

        " * * * of d e f e n d a n t ' s c o n v i c t i o n of t h e f t of
        a motor v e h i c l e which o c c u r r e d i n t h e s t a t e
        of Michigan f o r t h e f o l l o w i n g r e a s o n s :

        "1. T h a t a t t h e t i m e of t h e o f f e n s e d e f e n d a n t
        was a j u v e n i l e and n e a r l y t e n y e a r s have
        passed; "
The D i s t r i c t C o u r t d e n i e d t h e motion, s t a t i n g :

        "THE COURT:             Okay. A s t o t h e Motion i n
        Limine f i l e d h e r e i n , t h e f i r s t p a r t t h e r e o f ,
        a s k i n g t h a t any r e f e r e n c e t o t h e c o n v i c t i o n
        of t h e f t t o a motor v e h i c l e i n t h e s t a t e of
        Michigan i s d e n i e d t o t h i s e x t e n t . The
        County A t t o r n e y may a s k a s i n g l e q u e s t i o n i n
        r e g a r d t o t h e r e c o r d of t h e Defendant and
        t h a t i s , whether o r n o t h e h a s been p r e -
        v i o u s l y c o n v i c t e d of a f e l o n y . H e may n o t
        go f u r t h e r s a v e and e x c e p t i n t h e e v e n t t h a t
        D e f e n d a n t ' s c h a r a c t e r i s p u t i n i s s u e by
        t h e defendant himself. * * *"

        Upon c r o s s - e x a m i n a t i o n o f d e f e n d a n t by t h e S t a t e ,

d e f e n d a n t was asked whether he had e v e r been c o n v i c t e d of a

f e l o n y . Defendant responded, "Yes, I have."                           Defendant, on

t h i s a p p e a l , c o n t e s t s t h e p r o p r i e t y o f h i s impeachment on
t h e b a s i s of a p r i o r f e l o n y c o n v i c t i o n , a r g u i n g t h a t h i s
motion i n l i m i n e s h o u l d have been g r a n t e d .
        On a p p e a l , d e f e n d a n t r a i s e s t h e f o l l o w i n g i s s u e :
       W s it r e v e r s i b l e e r r o r t o a d m i t e v i d e n c e of d e f e n -
        a

d a n t ' s p r i o r felony conviction?
     Defendant bases his contention of error on the grounds

that (a) the prior felony conviction was too remote in time;
(b) it occurredwhile he was a juvenile; and (c) the District
Court failed to exercise its discretion as to whether to
grant or deny the motion in limine.
     The thrust of defendant's argument is that a conviction,

remote in time and occurring while a defendant is a juvenile,
should not be permitted to be used in the impeachment of a
defendant.     The sole mention in the record of the remoteness
or juvenile nature of defendant's prior Michigan conviction
appears in defendant's motion in limine, where the allega-
tion is made that the prior conviction was almost ten years
old at the time of trial, at which time defendant was a
juvenile. Defendant submitted no proof to support these
allegations.
    While not before the District Court at the time of the
denial of the motion, the presentence investigation indi-
cates the particular conviction referred to by defendant was
six years old at the time of trial and that defendant was
tried and convicted as an adult, being 19 years of age at
the time. Further, the report indicates that defendant was
convicted of a felony - Montana - -
                      in        in 1972, a mere four years

prior to trial, at which time defendant was 21 years of age.
     Clearly, if a defendant is making a motion to exclude
evidence because of its potential prejudice and absence of
probative value, he should be required to make some kind of
showing to back it up.     Thus, there is no issue of remote-
ness or of a juvenile conviction before this Court, as the
facts do not support it.
     Defendant first argues that a defendant's conviction
too remote in time cannot be used to impeach his credibility
at a subsequent trial.
       It is settled law in Montana, prior to the effective
date of the new Rules of Evidence, that evidence of a prior
conviction established by examination of the witness or by
record of judgment may be introduced for the purpose of
impeaching that witness.    Section 93-1901-11, R.C.M. 1947;
State v. Gafford, (1977),        Mont.      ,   563 P.2d 1129, 34
St.Rep. 313; State v, Romero, (1973), 161 Mont. 333, 505
P.2d 1207; State v. Coloff, (1951), 125 Mont. 31, 231 P.2d
343.    While there is no authority in Montana resolving the
question of the effect of the remoteness of prior conviction
on its probative value and potential for giving rise to
prejudice, the facts show defendant 19 years of age and not
a juvenile.
       Defendant relies primarily upon an Illinois decision
for the rule that admissibility of evidence of prior con-
victions is within the discretion of the trial judge only if
a period of less than ten years had elapsed since the later
of the date of conviction or the release of the witness from
confinement; beyond ten years, the trial judge is without
discretion to permit evidence of the prior conviction.
People v. Montgomery, (1971), 47 I11.2d 510, 268 N.E.2d 695.
       Other jurisdictions, however, hold that regardless of
the age of the prior conviction, the matter is within the
sound discretion of the trial court.     State v. Landrum,
(1975), 25 Ariz.App. 446, 544 P.2d 270; Martin v. Common-
wealth, (Ky. 1974), 507 S.W.2d   485; People v. Wingo, (19731,
34 Cal.App.3d 974, 110 Cal.Rptr. 448; Rascon v. State, (Tex.
1973), 496 S.W.2d 99. Yet other jurisdictions permit intro-
duction of evidence of prior convictions regardless of their
remoteness, holding the age of the conviction goes to the
weight of the evidence, not its competence.      Hall v. State,
(Ind. 1976), 339 N.E.2d     802; State v. Bergen, (1975), 13
Wash.App. 974, 538 P.2d 533; People v. Sinclair, 30 Mich-App.
473, 186 N.W.2d    767.   The matter is one of discretion on the
part of the trial judge, and we find no abuse of discretion.
        Defendant further contends that a juvenile court judg-
ment cannot be used to impeach the credibility of a witness,
citing the general rule in this regard.      63 ALR3d 1112, 83;
Rivas v. State, (Tex. 1973), 501 S.W.2d 918; Banas v. State,
(1967), 34 Wis.2d 468, 149 N.W.2d 571, cert.den. 389 U.S.
962, 88 S.Ct. 346, 19 L Ed 2d 373; People v. Gomez, (1957),
152 Cal.App.2d 139, 313 P.2d 58.      Here, however, defendant
had a prior conviction in Montana when over the age of 21
years.
        Defendant last argues that the trial judge, in denying
the motion in limine, did so mechanically and without an
exercise of discretion, contrary to the general rule re-
ferred to by Justice Shea in his dissent in State v. Gafford,
supra.    Defendant urges the conviction be reversed on this
ground as well.
        The record in this case is bare of facts tending to
support defendant's argument.     However, it is logical to
presume that when a court is vested with discretionary power
regarding determination of an evidentiary matter, a decision
on the matter is an exercise of discretion.     The question
then becomes whether the court abused its discretion under
the facts of the case. Defendant does not make this argu-
ment.    We find no abuse of discretion.
        The conviction is affirmed.
We Concur:


  D Chief ,Justice s f % ~
    SA 4,B




     Justices
