                                                                                               June 9 2009


                                           DA 06-0092

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2009 MT 202



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JOSHUA JACE DEWITZ,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DC-2005-046
                        Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Russell LaFontaine, Office of the Public Defender, Missoula, Montana

                For Appellee:

                        Hon. Steve Bullock, Montana Attorney General, Micheal S. Wellenstein,
                        Assistant Attorney General, Helena, Montana

                        Fred Van Valkenburg, Missoula County Attorney, Jennifer Clark, Deputy
                        County Attorney, Missoula, Montana



                                                    Submitted on Briefs: May 2, 2007

                                                                Decided: June 9, 2009


Filed:

                        __________________________________________
                                          Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1     Joshua Dewitz appeals a jury verdict in the District Court for the Fourth Judicial

District, Missoula County, finding him guilty of felony Operation of a Clandestine Lab

and felony Criminal Endangerment. We affirm.

¶2     Dewitz raised several issues and sub-issues on appeal which we have restated for

clarity as follows:

¶3     1. Did the District Court abuse its discretion when it denied Dewitz’s motion to

excuse a prospective juror for cause?

¶4     2. Did the District Court abuse its discretion in allowing an officer to testify

regarding handwriting samples?

¶5     3. Did the District Court err in allowing an officer to testify regarding statements

made by witnesses at the scene?

¶6     4. Did Dewitz waive appellate review of his M. R. Evid. 404(b) claim by his

failure to make a timely objection?

¶7     5. Did the District Court abuse its discretion when it refused to instruct the jury

that Ashley was an accomplice as a matter of law?

¶8     6. Did the District Court err in denying Dewitz’s motion to dismiss for

insufficient evidence?1

¶9     7. Did the prosecutor commit misconduct in her closing argument to the jury?


1
   Dewitz filed what he termed a “motion for a directed verdict”; however, there is no
statutory authority for such a motion. The correct motion is a motion to dismiss for
insufficient evidence, see § 46-16-403, MCA, and we will refer to Dewitz’s motion in
this case as such.

                                            2
                           Factual and Procedural Background

¶10   Dewitz and Tanisha Ashley had an 8-year-long relationship that began when

Ashley was 16 years old. They had a daughter, Jasmyne, when Ashley was 17. Although

their relationship ended, Dewitz and Ashley maintained contact so that Dewitz could

continue to see Jasmyne.

¶11   In June 2004, Ashley decided to move from Virginia to Oregon where she grew up

and where she still had family. Dewitz agreed to help her move. In August 2004,

Dewitz, Ashley and Mia, Ashley’s infant daughter from a different relationship, left for

Oregon by car. They drove a white, four-door, older car, possibly a Subaru. Jasmyne

remained in Iowa with Dewitz’s family until Ashley was settled in Oregon.

¶12   Dewitz and Ashley arrived in Missoula on the evening of August 17, 2004. They

decided to stay overnight in Missoula, hence Ashley rented two rooms at the Microtel

Motel. Ashley later testified that she rented the rooms because Dewitz did not have any

identification. The rooms were side by side. Ashley and her baby stayed in room 332

and Dewitz stayed in room 330. Ashley testified that the only time she was in room 330

was when they arrived and she carried Dewitz’s cat to that room before going to her own

room with Mia.

¶13   Ashley further testified that sometime after she went to sleep, she was awakened

by Dewitz screaming her name and banging on her door. When Ashley opened the door,

Dewitz rushed past her, grabbed his briefcase and told her to get the baby because they

had to go. Ashley noticed that Dewitz had burn blisters on his arms and chest. Ashley

grabbed Mia and whatever else she could and ran out to the car where Dewitz was


                                           3
waiting. She noticed a lot of smoke coming out of the motel windows. Ashley asked

Dewitz about his cat and Dewitz told her it was dead.

¶14     Dewitz drove toward the interstate. On their way out of town, Ashley asked

Dewitz what happened and he told her “a fire.” Ashley told Dewitz that he had to take

her back because the rooms were in her name. Dewitz turned the vehicle around and

dropped Ashley and Mia off at a gas station. Dewitz told Ashley he could not stay

because there was a warrant out for his arrest. Ashley returned to the motel with Mia and

told the desk clerk what had happened.

¶15     The Missoula Fire Department responded to the fire and evacuated the motel.

When the firefighters initially entered the burning room, the sprinkler system was

spraying water, but a pot on the floor was still burning. The firefighters used a chemical

fire extinguisher to put out the fire in the pot and also rescued Dewitz’s cat from the

room.

¶16     Fire Inspector Jason Diehl conducted the investigation of the fire in room 330. He

determined that the fire started when wind from the open window blew the curtains into a

hot plate that was sitting on a counter below the window causing the curtains to ignite.

The fire from the curtains then ignited the flammable vapors emitting from a pot in the

room. Diehl believed that the flaming pot of chemicals ended up on the floor when the

occupant of the room moved it away from the curtains in an attempt to extinguish the

blaze. Diehl testified that from the objects he observed in the room and from the way the

fire started, it appeared to him that someone had set up a meth lab in the room




                                            4
endangering not only the motel occupants, but also the firefighters who responded to the

fire. The fire caused over $270,000 in damages to the motel.

¶17    As part of his investigation, Diehl interviewed Ashley. In that interview, Ashley

told Diehl that she and her daughter were staying in room 332 and Dewitz was staying in

room 330. Ashley later testified that at some point during the evening, Dewitz told her he

was heading to WalMart. Ashley said that she remained in her room all night scratching

lottery tickets until she fell asleep. She did not wake up until she heard Dewitz banging

on the door and screaming her name.

¶18    Ashley gave law enforcement officers permission to search both rooms. In room

332, the officers found baby bottles, formula, diapers, feminine items, and a bottle of

medication. Detective Scott Brodie with the Missoula Police Department testified that all

of these items indicated that Ashley was staying in room 332. In the bathroom of room

332, the officers also found a snort tube and a piece of burnt tin foil. Residue from these

items later tested positive for meth.

¶19    When officers searched room 330, they found a number of items associated with

the making of meth including Epsom salts, Isopropyl alcohol, STP gas treatment, tubing,

a funnel, rubber gloves, lithium batteries, a digital scale, duct tape, a gas mask, various

bottles of liquid, and a pot of a tri-layered amber liquid. Tests by the crime lab revealed

that the upper layer of this liquid was meth. Officers also found in the room a wallet

containing $5,000 wrapped in black electrical tape; two spiral notebooks containing

laundry lists of things to buy and do; a man’s toiletry bag containing a toothbrush and




                                            5
shaving gear; and a bag of catnip. Detective Brodie testified that these items indicated

that Dewitz was staying in that room.

¶20     Ashley was arrested and charged with Criminal Endangerment for exposing two-

month old Mia to meth, Criminal Possession of Dangerous Drugs, Criminal Possession of

Drug Paraphernalia, and Operation of an Unlawful Clandestine Lab. Mia was placed in

the care of Child & Family Services.           An examination showed that Mia had

methamphetamine and amphetamine in her system.

¶21     On June 6, 2005, the State and Ashley entered into a plea agreement wherein the

State agreed that the charges of Criminal Endangerment and Operation of an Unlawful

Clandestine Lab would be dismissed at sentencing. Ashley agreed to plead guilty to

Criminal Possession of Dangerous Drugs and Criminal Possession of Drug Paraphernalia,

and to testify truthfully in any proceeding stemming from the incident at the motel. The

State also agreed to recommend a five-year commitment to the Department of

Corrections with all but one year suspended and a $4,000 fine for the Offense of Criminal

Possession of Dangerous Drugs, along with a six-month sentence to the Missoula County

Detention Center for the offense of Criminal Possession of Drug Paraphernalia.

¶22     Dewitz was arrested in Oregon on September 21, 2004, and returned to Montana

for trial. The State charged Dewitz with Operation of an Unlawful Clandestine Lab, a

felony, in violation of § 45-9-132, MCA, and Criminal Endangerment, a felony, in

violation of § 45-5-207, MCA. A jury found Dewitz guilty of both offenses on June 29,

2005.    For the offense of Operation of an Unlawful Clandestine Lab, Dewitz was

sentenced to prison for forty years with twenty years suspended. He was sentenced to an


                                           6
additional ten years for the offense of Criminal Endangerment, to run concurrently to the

first sentence.

¶23      Dewitz appeals.

                                          Issue 1.

¶24      Did the District Court abuse its discretion when it denied Dewitz’s motion to
         excuse a prospective juror for cause?

¶25      The District Court denied defense counsel’s request to strike prospective juror

Chari Lipski for cause. Lipski is employed as a 911 dispatcher and her significant other

is a city police officer. During voir dire, Lipski stated that she may have been working at

the time of the incident and that she remembered the fire “being discussed” among her

coworkers. Defense counsel requested that she be removed for cause because she was a

potential witness and because she may have outside knowledge of the incident that could

come into play during deliberations. The State objected to Lipski’s dismissal and the

District Court denied defense counsel’s request to strike this juror for cause.

Consequently, counsel used one of his preemptory challenges to remove her from the

jury.

¶26      Dewitz argues on appeal that the District Court’s failure to dismiss Lipski denied

him his right to a fair trial. He contends that because Lipski is employed “by the entity

on whose behalf the prosecution was initiated,” Lipski should have been dismissed for

cause.     Dewitz also contends that because Lipski is a 911 dispatcher and is in a

relationship with a law enforcement officer, she is “prone to favor” the State’s side of this

case. And, finally, Dewitz contends that because Lipski heard some of her co-workers



                                              7
discussing this incident at the time it occurred, Lipski was a potential witness, thus she

could not serve as a juror in this case.

¶27    The State argues that the mere fact that Lipski has connections to law enforcement

does not, without more, necessitate a finding of bias. The State also argues that Dewitz’s

claim that Lipski should have been excused because she could be a potential witness in

this case is unfounded.

¶28    We review a district court’s denial of a challenge for cause to determine if the

court abused its discretion. State v. Golie, 2006 MT 91, ¶ 6, 332 Mont. 69, 134 P.3d 95

(citing State v. Marble, 2005 MT 208, ¶ 10, 328 Mont. 223, 119 P.3d 88). An abuse of

discretion occurs if a trial court fails to excuse a prospective juror when actual bias is

discovered during voir dire. State v. Richeson, 2004 MT 113, ¶ 16, 321 Mont. 126, 89

P.3d 958 (citing State v. Freshment, 2002 MT 61, ¶ 12, 309 Mont. 154, 43 P.3d 968).

“Because of the right to a trial by an impartial jury [Mont. Const., art II, § 24], and the

great expense and inconvenience that results from retrial, dismissal for cause is favored

when a serious question arises about a juror’s ability to be impartial.” Richeson, ¶ 14

(citing Freshment, ¶ 11).

¶29    Section 46-16-115(2), MCA, sets forth the bases for challenging potential jurors

for cause in criminal cases. Dewitz contends on appeal that § 46-16-115(2)(b), MCA, in

particular applies to this case. Section 46-16-115(2)(b), MCA, provides in relevant part:

              (2) A challenge for cause may be taken for all or any of the
       following reasons or for any other reason that the court determines:
                                       .     .    .




                                            8
               (b) standing in the relation of guardian and ward, attorney and
       client, master and servant, landlord and tenant, or debtor and creditor with
       or being a member of the family or in the employment of the defendant or
       the person who is alleged to be injured by the offense charged or on whose
       complaint the prosecution was instituted; . . . [Emphasis added.]

Thus, Dewitz argues that under this statute, Lipski should have been dismissed for cause

because she was employed as a 911 dispatcher. However, Dewitz did not argue this

theory in the trial court.

¶30    It is a well-established rule that this Court will not address an issue raised for the

first time on appeal or a party’s change in legal theory because it is unfair to fault the trial

court on an issue it never had the opportunity to consider. State v. Peterson, 2002 MT

65, ¶ 24, 309 Mont. 199, 44 P.3d 499 (citing State v. Weaselboy, 1999 MT 274, ¶ 16, 296

Mont. 503, 989 P.2d 836). Because Dewitz did not raise a challenge to Lipski under this

statute during voir dire, we will not address this issue under this new legal theory on

appeal.

¶31    Dewitz also contends that because Lipski is a 911 dispatcher and is in a

relationship with a law enforcement officer, she is “prone to favor” the State’s side of this

case. However, the following discussion occurred during the voir dire examination of

Lipski:

               THE COURT: So are those witnesses so close to either you or you
       know they’re close to your significant other that you don’t feel you can
       process the evidence fairly and impartially in this case?
               JUROR LIPSKI: I don’t think that it would – would affect the way
       that I looked at this but I am a 911 dispatcher and I also do call in city
       police tests so --
               THE COURT: Right. Is that going to – again are you able to set
       your job aside and be a juror and just listen to this testimony here and
       follow the law and then you find the facts and get to a verdict?


                                               9
       JUROR LIPSKI: I believe so.

                                 .      .    .

        MS. CLARK [for the State]: Ms. Lipski, you don’t specifically
recall if you were working that morning or not.
        JUROR LIPSKI: I don’t.
        MS. CLARK: Any of the things that you heard about this offense,
either from co-workers or from working, have you formed an opinion about
the case as of now?
        JUROR LIPSKI: No.
        MS. CLARK: Would you be able to listen objectively to both sides
and make a determination at the end of Mr. Dewitz’s guilt?
        JUROR LIPSKI: I believe so.
        MS. CLARK: And does the fact that you are a dispatcher in a
relationship with an officer and work at the city police department have a
bearing on how you would weigh the evidence in this case?
        JUROR LIPSKI: I don’t believe so.
        MS. CLARK: I object to her dismissal.
        THE COURT: Any additional questions?
        MR. LAFONTAINE [counsel for Dewitz]: Yes, Judge. Ms. Lipski,
as you stated to one of Ms. Clark’s questions, you don’t – you don’t
remember – you don’t recall exactly whether you worked that night or not,
correct?
        JUROR LIPSKI: Right. I would have to check my shift schedule.
        MR. LAFONTAINE: Okay. And you did state to the judge that you
could sit here and listen to all the evidence and be a fair and impartial juror;
is that correct?
        JUROR LIPSKI: I do believe so.
        MR. LAFONTAINE: Okay. And do you believe – if you heard all
of the state’s witnesses, you heard all of the – you heard certain police
officers, fire marshals, and possibly an evidence examiner get up here and
testify, if you heard whatever evidence the defense has to put on and if you
feel that the state didn’t prove their case, could you enter a not guilty
verdict?
        JUROR LIPSKI: I believe I could and do what was proper.
        MR. LAFONTAINE: And – and the fact that someone’s sitting next
to a defense attorney at a criminal trial you don’t automatically believe that
that person’s guilty, do you?
        JUROR LIPSKI: No, sir.
        MR. LAFONTAINE: Judge, she did answer the questions that – that
I asked, I believe, truthfully, Judge. However, as stated earlier, the main
reason for this is that this – this potential juror could – could have been


                                      10
         called as a – as a – as a witness by the state if the state so chose because she
         has prior knowledge of this offense and – and that may – that – I believe,
         Judge, that may – that may come into bearing during deliberation.
                THE COURT: Very well. Your motion is denied.

¶32      Thus, contrary to Dewitz’s contention, the preceding colloquy shows that Lipski

was not biased in this case. Lipski consistently responded that she would listen to the

evidence objectively, that she could remain impartial, and that her job in law enforcement

and her personal relationship with a law enforcement officer would not have a bearing on

how she weighed the evidence. There exists nothing in Lipski’s testimony demonstrating

that she had formed an opinion on Dewitz’s guilt or innocence, or that her employment

and personal relationship would cause Lipski to harbor any actual bias one way or the

other.

¶33      In addition, the mere fact that Lipski is connected to law enforcement through her

job and her personal relationship does not, without more, necessitate a finding that she

would not be an impartial juror. State v. Deschon, 2004 MT 32, ¶ 41, 320 Mont. 1, 85

P.3d 756 (citing State v. Thomson, 169 Mont. 158, 163, 545 P.2d 1070, 1072-73 (1976)).

¶34      Dewitz also contends that because Lipski heard some of her co-workers discussing

this incident at the time it occurred, Lipski was a potential witness and, pursuant to

M. R. Evid. 606(a), jurors are prohibited from acting as witnesses at trial. However,

Lipski was not listed as a witness by the State or the defense prior to trial, and Lipski

never testified at trial. Thus, Dewitz’s claim that Lipski should have been excused

because she could be a potential witness is unfounded. In addition, Dewitz’s claim that

Lipski could have tainted the jury with information or facts that may not have been



                                               11
submitted at trial was pure speculation. Discussing the case with her co-workers and

remembering a “brief generalization” of what occurred does not prove that Lipski was

exposed to information that was inadmissible at trial.

¶35      Accordingly, we hold that the District Court did not abuse its discretion when it

denied Dewitz’s motion to excuse Lipski for cause, and we affirm on this issue.

                                          Issue 2.

¶36      Did the District Court abuse its discretion in allowing an officer to testify
         regarding handwriting samples?

¶37      Detective Brodie testified that in the course of his investigation, he found two

spiral notebooks inside a red bag in room 330 containing, among other things, “to do”

lists. Detective Brodie testified that some of the items found in the room were on the

lists.   Detective Brodie further testified that he compared the handwriting in the

notebooks to the handwriting in several letters that had been seized from Ashley while

she was incarcerated in the Missoula County Detention Center. While acknowledging

that he was not an expert, Detective Brodie opined that the handwriting in the notebooks

was the same as the handwriting in the letters. Detective Brodie informed the jury that he

believed the letters were from Dewitz because the return address indicated they were

from a “Jill Delle,” but at least one of them was signed, “Your man, J.D.”

¶38      Dewitz argued in the trial court and now on appeal that the State did not lay the

proper foundation to have Detective Brodie qualified as an expert in handwriting

analysis. Dewitz also argues that the District Court abused its discretion when it allowed




                                             12
Detective Brodie to give opinion testimony that the handwriting on the letters was the

same as the handwriting in the notebooks.

¶39    The State argues, on the other hand, that Detective Brodie was not testifying as an

expert witness because his testimony was not scientific or technical, and it did not require

specialized knowledge or training. Instead, the State maintains that Brodie was testifying

as a lay witness and “simply offering his personal observation that [the] handwriting in

the letters and notebooks was the same, an observation that any lay witness could have

made.”

¶40    We review a district court’s evidentiary rulings to determine whether the court

abused its discretion. State v. Frasure, 2004 MT 305, ¶ 15, 323 Mont. 479, 100 P.3d

1013. In addition, we have repeatedly held that law enforcement officers may testify to

matters about which “they have extensive experience and are properly qualified through

training and experience.” Frasure, ¶ 17 (citing Onstad v. Payless Shoesource, 2000 MT

230, ¶ 40, 301 Mont. 259, 9 P.3d 38, overruled in part by Johnson v. Costco Wholesale,

2007 MT 43, 336 Mont. 105, 152 P.3d 727). However, in the case sub judice, we agree

with Dewitz that Detective Brodie was giving expert testimony on handwriting

comparisons even though he was not a handwriting expert.

¶41    We have found only one case wherein this Court has allowed testimony comparing

handwriting from someone other than a handwriting expert, and the reason we allowed

such testimony in that case was because the person testifying had established a familiarity

with the defendant’s handwriting long before defendant’s alleged misconduct occurred.

In State v. Fleming, 225 Mont. 48, 730 P.2d 1178 (1987), a case involving the issuing of


                                            13
bad checks, the managing officer and executive vice president of a bank handling the

checks at issue was allowed to render his opinion as to the author of those checks. We

pointed out in Fleming that the bank official’s familiarity with the defendant’s signature

was gained through having known the defendant since birth, his personal contact with the

defendant at the bank, and his review of the defendant’s signature card on file at the bank.

Fleming, 225 Mont. at 52, 730 P.2d at 1180-81. In addition, the bank official stated that

comparing signature cards with the signatures on checks was part of his job at the bank.

Fleming, 225 Mont. at 52, 730 P.2d at 1180-81.

¶42    We relied in Fleming on M. R. Evid. 901, which provides that a nonexpert may

give an opinion on the genuineness of handwriting only if the nonexpert is already

familiar with that handwriting. Fleming, 225 Mont. at 51-52, 730 P.2d at 1180-81.

               Requirement of authentication or identification.
               (a) General provision. The requirement of authentication or
       identification as a condition precedent to admissibility is satisfied by
       evidence sufficient to support a finding that the matter in question is what
       its proponent claims.
               (b) Illustrations. By way of illustration only, and not by way of
       limitation, the following are examples of authentication or identification
       conforming with the requirements of this rule:

                                        .    .     .

             (2) Nonexpert opinion on handwriting. Nonexpert opinion as to
       the genuineness of handwriting, based upon familiarity not acquired for
       purposes of litigation.

M. R. Evid. 901 (emphasis added). Here, Detective Brodie had no familiarity with

Dewitz’s handwriting prior to the investigation in this case.




                                             14
¶43    Accordingly, we hold that the District Court abused its discretion in allowing

Detective Brodie, a lay witness, to give opinion testimony regarding the handwriting

samples in this case.

¶44    Nevertheless, we also hold that this error was harmless. We have adopted a two-

step analysis to determine whether an alleged error prejudiced a criminal defendant’s

right to a fair trial and is therefore reversible. State v. Van Kirk, 2001 MT 184, ¶ 37, 306

Mont. 215, 32 P.3d 735. The first step in the analysis is to categorize the claimed error as

“structural” error or “trial” error. Van Kirk, ¶ 37. “ ‘Structural’ error is that type of error

that ‘[a]ffects the framework within which the trial proceeds, rather than simply an error

in the trial process itself,’ ” Van Kirk, ¶ 38, whereas “trial” error “is that type of error that

typically occurs during the presentation of a case to the jury,” Van Kirk, ¶ 40. We

further defined “structural” error as error that is

       typically of constitutional dimensions, precedes the trial, and undermines
       the fairness of the entire trial proceeding. Because of its nature, it cannot
       be qualitatively or quantitatively weighed against the admissible evidence
       introduced at trial. Structural error is presumptively prejudicial and is not
       subject to harmless error review jurisprudentially or under our harmless
       error statute found at § 46-20-701, MCA.
               Structural error is automatically reversible and requires no additional
       analysis or review.

Van Kirk, ¶¶ 38-39 (citing State v. LaMere, 2000 MT 45, 298 Mont. 358, 2 P.3d 204

(errors in the jury selection process are structural errors); Gideon v. Wainwright, 372 U.S.

335, 83 S. Ct. 792 (1963) (total deprivation of the right to counsel is a structural error);

Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437 (1927) (lack of an impartial trial judge is a

structural error)). Conversely, we defined “trial” error as error that is



                                               15
       amenable to qualitative assessment by a reviewing court for prejudicial
       impact relative to the other evidence introduced at trial. Trial error is not
       presumptively prejudicial and therefore not automatically reversible, and is
       subject to review under our harmless error statute, § 46-20-701(1), MCA.

Van Kirk, ¶ 40. In the case sub judice, the error is clearly “trial” error as it occurred

during the presentation of the case to the jury, Van Kirk, ¶ 40, but it did not undermine

the fairness of the entire trial proceeding, Van Kirk, ¶ 38.

¶45    Because we have determined that the error in this case was “trial” error, the next

step in the analysis is to determine whether the error was harmless under the

circumstances. Van Kirk, ¶ 41. Consequently, we must look “to whether the fact-finder

was presented with admissible evidence that proved the same facts as the tainted

evidence proved.” Van Kirk, ¶ 43 (emphasis omitted). In other words, in the instant

case, the State must have presented other evidence to show that Dewitz was occupying

the room containing the meth lab that caught on fire.

¶46    To that end, the State presented Ashley’s testimony that Dewitz occupied that

room; a booking photo of Dewitz from Oregon indicating that he had been burned in the

fire in that room; a photograph of Dewitz’s and Ashley’s daughter found in that room;

and Julia Menendez’s testimony that on the night of the fire, Dewitz called her and told

her he had been burned in a fire at the motel. This evidence was sufficient to prove the

same facts as the tainted evidence was intended to prove—i.e., that Dewitz occupied the

room containing the meth lab.




                                              16
¶47    Therefore, on the basis of this other admissible evidence, we conclude that the

introduction of Detective Brodie’s opinions regarding the handwriting in the notebooks

was harmless, and Dewitz’s right to a fair trial was not prejudiced.

                                         Issue 3.

¶48    Did the District Court err in allowing an officer to testify regarding statements
       made by witnesses at the scene?

¶49    While we review a district court’s evidentiary decisions to determine if the court

abused its discretion, we review a court’s conclusions of law and interpretations of the

United States Constitution de novo. State v. Mizenko, 2006 MT 11, ¶ 8, 330 Mont. 299,

127 P.3d 458, cert. denied, 549 U.S. 810, 127 S. Ct. 43 (2006) (citations omitted).

¶50    Dewitz argues on appeal that the District Court erred when it allowed the State to

elicit testimony from Missoula Police Officer Connie Brueckner that witnesses at the

scene told her that they saw a black woman and a white male leave the motel shortly after

the fire alarm sounded. Dewitz argues on appeal that this statement is inadmissible under

M. R. Evid. 802, and that allowing this statement into evidence violated his rights under

the Confrontation Clause as the witnesses were not available for cross-examination.

¶51    The Confrontation Clause of the Sixth Amendment to the United States

Constitution allows courts to admit hearsay against criminal defendants in only two

instances: (1) if the hearsay is testimonial, the defendant must have had an opportunity to

cross-examine the declarant and the prosecution must show that the declarant is

unavailable to appear at trial, or (2) if the hearsay is nontestimonial, the hearsay must

bear adequate indicia of reliability or particularized guarantees of trustworthiness.



                                            17
Mizenko, ¶ 10 (citing Crawford v. Washington, 541 U.S. 36, 59, 68, 124 S. Ct. 1354,

1369, 1374 (2004)).

¶52    During cross-examination of Ashley, defense counsel introduced the “Affidavit

and Motion for Leave to File Amended Information” from the State’s case filed against

Ashley. The affidavit and motion stated in part: “Witnesses stated that shortly after the

fire alarm sounded, they observed a black female and a white male get into a Subaru and

leave. One witness identified Ashley as the woman who had left.” The State later

elicited testimony from Officer Brueckner that, during her investigation, witnesses told

her that two people and an infant had left the scene. Over defense counsel’s objection,

the court allowed Officer Brueckner to read from the affidavit and motion that had been

previously introduced by defense counsel. In addition, the State argued in closing:

       How do we know that it was [Dewitz] that did this? We have other
       witnesses that were there, and they told the officers that they saw two
       people fleeing the scene in a white car: a Black female and a White male.

¶53    This Court has repeatedly held that a party waives the right to allege error on

appeal where objectionable evidence or testimony was elicited by that party’s own

actions. State v. Smith, 2005 MT 18, ¶ 10, 325 Mont. 374, 106 P.3d 553 (citing State v.

Gardner, 2003 MT 338, ¶¶ 44, 47, 318 Mont. 436, 80 P.3d 1262, cert. denied, 541 U.S.

1034, 124 S. Ct. 2105 (2004)); see also State v. Harris, 1999 MT 115, ¶¶ 32-33, 294

Mont. 397, 983 P.2d 881 (“We will not put a district court in error for an action in which

the appealing party acquiesced or actively participated.”).




                                            18
¶54    In this case, Dewitz opened the door by introducing the affidavit and motion from

which Officer Brueckner read.        Dewitz cannot now challenge Officer Brueckner’s

testimony since Dewitz himself introduced the evidence that he now finds objectionable.

¶55    Accordingly, we hold that the District Court did not err in allowing Officer

Brueckner to testify regarding statements made by witnesses at the scene, and we affirm

on this issue.

                                         Issue 4.

¶56    Did Dewitz waive appellate review of his M. R. Evid. 404(b) claim by his failure to
       make a timely objection?

¶57    M. R. Evid 404(b) provides:

       Evidence of other crimes, wrongs or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It
       may, however, be admissible for other purposes, such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity or absence of
       mistake or accident.

We review a district court’s ruling regarding the admission of evidence of other crimes,

wrongs or acts under M. R. Evid. 404(b) to determine whether the court abused its

discretion. State v. Buck, 2006 MT 81, ¶ 71, 331 Mont. 517, 134 P.3d 53 (citing State v.

Aakre, 2002 MT 101, ¶ 8, 309 Mont. 403, 46 P.3d 648).

¶58    In the case sub judice, Ashley testified, in response to questioning from the State,

that both she and Dewitz would use meth when they got together. She also testified that

the time period she was referring to when they both used meth was at least eight months

prior to this incident. Dewitz did not object to this testimony from Ashley, and, instead,

waited until after Ashley had finished testifying to move for a mistrial. The motion was



                                            19
based in part on the grounds that Ashley’s testimony regarding their meth use was

inadmissible because it referred to prior bad acts when the State had not given proper

notice that it intended to introduce such information. The District Court denied Dewitz’s

motion for a mistrial.

¶59    We review a district court’s grant or denial of a motion for a mistrial to determine

whether the court abused it discretion. Smith, ¶ 6 (citing State v. Weldele, 2003 MT 117,

¶ 72, 315 Mont. 452, 69 P.3d 1162). We noted in Smith, that, generally, a mistrial is

appropriate where there is a reasonable possibility that inadmissible evidence may have

contributed to a defendant’s conviction. Smith, ¶ 8 (citing State v. Partin, 287 Mont. 12,

18, 951 P.2d 1002, 1005 (1997)).

¶60    Dewitz argues on appeal that the State did not provide notice that it intended to

present evidence of prior bad acts and that evidence of past meth use was irrelevant to the

meth lab charges and highly prejudicial to his case. He contends that the evidence had no

probative value and was too remote in time to be considered relevant to this incident.

¶61    The State argues on the other hand that Dewitz waived appellate review of this

issue because he never made a contemporaneous 404(b) objection during Ashley’s

testimony even though the grounds for the objection were apparent at the time. The State

maintains that raising a 404(b) argument in a motion for a mistrial is too late.

¶62    To preserve an issue for appeal, a defendant must make an objection when the

evidence is offered. “ ‘[O]ne must object to improper testimony when it is offered or

abide the result; failure to object at the proper times waives the error.’ ” State v.

Lawrence, 285 Mont. 140, 163, 948 P.2d 186, 200 (1997) (quoting Labbitt v. Bunston, 84


                                             20
Mont. 597, 599, 277 P. 620, 621 (1929)). In addition, we have explained that “[f]or an

objection to be contemporaneous and thus preserve an appeal, it must be ‘made at trial in

a timely manner and upon specific grounds, which appear on the record, and which is

made as soon as the ground for the objection becomes apparent.’ ” State v. Azure, 2002

MT 22, ¶ 44, 308 Mont. 201, 41 P.3d 899 (citing State v. Stuit, 268 Mont. 176, 182, 885

P.2d 1290, 1294 (1994)).

¶63    In this case, Dewitz did not raise a contemporaneous objection to Ashley’s

testimony even though the grounds for the objection were clearly apparent at the time.

Instead, Dewitz waited until after both the prosecution and the defense had completed

their examinations of Ashley before he raised his 404(b) claim, and then he did so by way

of a motion for a mistrial. This is not a permitted tactic. Waiting to raise an objection to

allegedly improper testimony until a motion for mistrial waives the objection as untimely

when the objection could have been raised at the time the testimony was offered. See

State v. Schwein, 2000 MT 371, 303 Mont. 450, 16 P.3d 373; State v. Paoni, 2006 MT

26, 331 Mont. 86, 128 P.3d 1040.

¶64    Accordingly, we hold that Dewitz waived appellate review of his 404(b) claim by

his failure to make a timely objection.

                                          Issue 5.

¶65    Did the District Court abuse its discretion when it refused to instruct the jury that
       Ashley was an accomplice as a matter of law?

¶66    When we consider whether a trial court has correctly instructed the jury in a

criminal case, we determine whether the instructions, taken as a whole, fully and fairly



                                            21
instructed the jury on the law applicable to the case. State v. Cybulski, 2009 MT 70, ¶ 34,

349 Mont. 429, 204 P.3d 7 (citing State v. Archambault, 2007 MT 26, ¶ 14, 336 Mont. 6,

152 P.3d 698; State v. Courville, 2002 MT 330, ¶ 15, 313 Mont. 218, 61 P.3d 749). And,

recognizing that a trial court has broad discretion when it instructs a jury, we review the

court’s decisions regarding jury instructions to determine whether the court abused its

discretion. Cybulski, ¶ 34 (citing State v. Bieber, 2007 MT 262, ¶ 22, 339 Mont. 309, 170

P.3d 444; State v. Swann, 2007 MT 126, ¶ 32, 337 Mont. 326, 160 P.3d 511). To

determine whether the court abused its discretion in instructing the jury, we look at

whether the court acted arbitrarily or exceeded the bounds of reason resulting in

substantial injustice. Cybulski, ¶ 34 (citing Bieber, ¶ 22; State v. English, 2006 MT 177,

¶ 50, 333 Mont. 23, 140 P.3d 454). To constitute reversible error, any mistake in

rendering the instructions must prejudicially affect the defendant’s substantial rights.

Cybulski, ¶ 34.

¶67    In this case, the District Court instructed the jury on the issue of accountability as

follows:

       Witness Legally Accountable
            1.     A person is legally accountable for the conduct of another
                   when either before or during the commission of an offense
                   with the purpose to promote or facilitate such commission, he
                   solicits, aids, abets, agrees, or attempts to aid such other
                   person in the planning or commission of the offense. The
                   trier of fact must determine if Tanisha Ashley is legally
                   accountable in this case.
            2.     The testimony of one legally accountable ought to be viewed
                   with distrust.

              3.     A conviction cannot be had on the testimony of one legally
                     accountable unless it is corroborated by other evidence which


                                             22
                      in itself, and without the aide of the testimony of the person
                      legally accountable, tends to connect the Defendant with the
                      commission of the offense, and the corroboration is not
                      sufficient if it merely shows the commission of the offense or
                      the circumstances thereof. [Emphasis added.]

¶68    Dewitz contends that the District Court abused its discretion when it failed to

instruct the jury that Ashley was an accomplice as a matter of law, and instead, left the

question of Ashley’s accountability for the jury to decide. Because the State initially

charged Ashley with the same criminal activity with which it had charged Dewitz,

Dewitz maintains that the State based its case on accomplice testimony and that a

defendant is entitled to special protections when an accomplice testifies at trial, such as

requiring other corroborating evidence.

¶69    The State argues that the District Court did not abuse its discretion in instructing

the jury because the parties disagreed over whether Ashley was an accomplice. On that

basis, the State maintains that the court correctly left the issue for the jury to decide.

¶70    Dewitz points to our holding in State v. Johnson, 276 Mont. 447, 452, 918 P.2d

293, 296 (1996), for the proposition that “[o]ne who is chargeable with the same crime as

a defendant is an accomplice.”        In Johnson, the State charged the defendant Jesse

Johnson with criminal mischief and criminal endangerment stemming from the

destruction of another’s vehicle. The State also charged two other individuals, Eddie

Johnson and Sunshine Perez, with criminal mischief for taking part in destroying the

vehicle. Eddie pled guilty and agreed to testify against Jesse at his trial. Sunshine

entered into a deferred prosecution agreement with the State wherein the State agreed to




                                              23
dismiss the criminal mischief charge if she also testified against Jesse. Johnson, 276

Mont. at 448-49, 918 P.2d at 293-94.

¶71       Prior to trial, the State dismissed the criminal endangerment charge against Jesse.

At Jesse’s trial on the criminal mischief charge, the State conceded that the only evidence

connecting Jesse to the crime was the testimony of Eddie and Sunshine. The State also

conceded that Eddie was an accomplice, but argued that Sunshine was not. The State

maintained that Sunshine had not committed any crimes even though it continued to

threaten her with prosecution for criminal mischief if she did not testify against Jesse.

Jesse moved to dismiss on the grounds that the State failed to prove its case because the

only evidence that connected him to the crime came from accomplices. The court denied

his motion and Jesse was convicted of criminal mischief. Johnson, 276 Mont. at 449-50,

918 P.2d at 294.

¶72       In reversing the district court, we expressed our disapproval of the State’s tactic of

threatening to prosecute Sunshine for criminal mischief while maintaining that she was

not an accomplice for purposes of trying Jesse for the same crime. “To procure her

testimony by such a threat and then argue to the . . . jury that there is no basis for finding

that she was accountable for the crime was the kind of duplicitous conduct by an officer

of the court that cannot be sanctioned by the law.” Johnson, 276 Mont. at 452, 918 P.2d

at 296.

¶73       Contrary to Dewitz’s assertions, the facts in Johnson are distinguishable from the

facts in the instant case, and the duplicitous conduct that this Court found offensive in

Johnson is not present here. Unlike Johnson, in the case sub judice the State dismissed


                                                24
the charge of accountability against Ashley prior to trying Dewitz. The State did not

continue to threaten to prosecute Ashley by way of a deferred prosecution agreement, as

the State did to the witness in Johnson, while it tried Dewitz. Here, the prosecutor

explained that the State initially charged Ashley because she had rented the rooms at the

motel, and she was there when the police arrived on the scene. The State dismissed the

charge, however, after further investigation revealed that Ashley was not involved in

setting up the meth lab.

¶74    We stated in Johnson that “[t]he issue of whether a witness for the State is an

accomplice is—unless such fact is undisputed—for the jury, based on proper instruction

from the court.”        Johnson, 276 Mont. at 451, 918 P.2d at 295; see also State v.

Blackcrow, 1999 MT 44, ¶ 21, 293 Mont. 374, 975 P.2d 1253 (“Whether a person may be

held legally accountable for the conduct of the defendant, and so qualify as an

accomplice for purposes of the ‘accomplice testimony corroboration rule,’ is, unless

undisputed by the parties, a matter of fact to be determined by the jury.”). Because the

parties disagreed in this case over whether Ashley was an accomplice, the District Court

correctly left that issue for the jury to decide.

¶75    Accordingly, we hold that the District Court did not abuse its discretion when it

refused to instruct the jury that Ashley was an accomplice as a matter of law, and we

affirm on this issue.

                                            Issue 6.

¶76    Did the District Court err in denying Dewitz’s motion to dismiss for insufficient
       evidence?



                                               25
¶77    We review a district court’s denial of a motion to dismiss for insufficient evidence

de novo. Cybulski, ¶ 42 (citing State v. Rosling, 2008 MT 62, ¶ 33, 342 Mont. 1, 180

P.3d 1102; Swann, ¶ 19; State v. McWilliams, 2008 MT 59, ¶ 37, 341 Mont. 517, 178

P.3d 121). Furthermore, we consider evidence to be sufficient if, after viewing it in the

light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Cybulski, ¶ 42; § 46-16-403,

MCA.

¶78    Dewitz argues on appeal that all of the evidence connecting him to the meth lab

stemmed from Ashley’s testimony and, since she was an accomplice, her testimony

needed to be corroborated, which, Dewitz claims, the State failed to do.              Dewitz

maintains that when the evidence admitted through Ashley is removed from the analysis,

there is not sufficient independent corroborative evidence to support a conviction.

¶79    The State argues that Ashley was not an accomplice, thus her testimony did not

need to be corroborated.      The State contends however, that even if Ashley were

considered an accomplice, there was sufficient evidence admitted at trial to corroborate

her testimony.    In fact, the State maintains that the testimony of Julia Menendez,

Ashley’s mother, regarding telephone conversations she had with both Dewitz and

Ashley on the night of the fire was sufficient in itself to corroborate Ashley’s testimony.

¶80    We have expressly stated that it is not the defendant’s burden to prove that he had

no connection with the crime. The burden is on the prosecution to produce corroborating

evidence which, of itself and without aid or direction from the accomplices’ testimony,




                                             26
connects the defendant with the crime charged. State v. Kemp, 182 Mont. 383, 388, 597

P.2d 96, 100 (1979) (citing People v. Robinson, 392 P.2d 970, 987 (Cal. 1964)).

¶81   As the State points out in its brief on appeal, Dewitz is essentially arguing that

without Ashley’s testimony there is no evidence placing Dewitz in Missoula and in the

motel room containing the meth lab. On the contrary, we conclude that the State did

present sufficient evidence to corroborate Ashley’s testimony.

¶82   Menendez testified at trial that Dewitz accompanied Ashley on the trip to Oregon

and that, before arriving in Missoula, Ashley phoned Menendez because Ashley and

Dewitz were arguing about whether to stop in Missoula or continue on to Oregon.

Menendez stated that Ashley did not want to stop in Missoula and that they discussed

Ashley and Mia making the trip the rest of the way by bus. Menendez also testified that

Ashley called her again later that evening to report that there was a fire in the room next

to hers and that Dewitz had left Ashley and her baby in Missoula. Menendez further

testified that she received a call from Dewitz at some point that same evening in which he

was crying and hysterical. Dewitz told her that he had been burned “real bad” in a fire

and that he left Ashley and the baby at the motel in Missoula and that he did not know

what to do.

¶83   In addition, the State introduced booking photos from Dewitz’s arrest in Oregon

shortly after the fire in Missoula. These photos showed Dewitz with burn marks on his

face and arms. The State also presented Officer Brueckner’s report of the investigation

from that evening wherein she stated that witnesses at the motel on the night of the fire

told her that shortly after the fire alarm sounded, they saw a black woman and a white


                                            27
man get into a Subaru and leave. One witness identified Ashley as the woman who left.

All of this information corroborated Ashley’s testimony that Dewitz was burned in the

fire in room 330 and that she left the motel after the fire started with Dewitz.

¶84    In addition, Detective Brodie testified that one of the reports from the fire

department stated that a cat had been rescued from room 330. T h i s information

corroborated Ashley’s testimony that prior to going to her own room at the motel, she

carried Dewitz’s cat inside the motel and placed it in Dewitz’s room.

¶85    Determinations of the credibility of witnesses and the weight of their testimony are

within the exclusive province of the jury, and conflicting testimony does not render the

evidence insufficient to support a guilty verdict. State v. Borsberry, 2006 MT 126, ¶ 20,

332 Mont. 271, 136 P.3d 993 (citing State v. Shields, 2005 MT 249, ¶ 19, 328 Mont. 509,

122 P.3d 421).

¶86    In State v. Black, 2003 MT 376, ¶ 24, 319 Mont. 154, 82 P.3d 926, we set forth the

following test for reviewing the sufficiency of corroborating evidence:

             To be sufficient, corroborating evidence must show more than that a
       crime was in fact committed or the circumstances of its commission. It
       must raise more than a suspicion of the defendant’s involvement in, or
       opportunity to commit, the crime charged. But corroborative evidence need
       not be sufficient, by itself, to support a defendant’s conviction or even to
       make out a prima facie case against him. Corroborating evidence may be
       circumstantial and can come from the defendant or his witnesses.

Moreover, “[c]orroborating evidence is not insufficient just because it is circumstantial,

disputed or even possibly consistent with innocent conduct; it is up to the jury to resolve

factual questions.” Black, ¶ 24 (citing State v. Kaczmarek, 243 Mont. 456, 460, 795 P.2d

439, 442 (1990)). Furthermore, “[c]orroborating evidence need not extend to every fact


                                             28
to which the accomplice testifies.” Black, ¶ 24 (citing State v. Ungaretti, 239 Mont. 314,

318, 779 P.2d 923, 925 (1989)).

¶87    Viewing the evidence in this case in the light most favorable to the prosecution, as

we are constrained to do, Cybulski, ¶ 42, a rational trier of fact could conclude beyond a

reasonable doubt that Dewitz not only accompanied Ashley to Missoula, but that he was

the individual that occupied the motel room containing the meth lab.

¶88    Accordingly, we hold that the District Court correctly concluded that Ashley’s

testimony was corroborated by sufficient independent evidence to be submitted to the

jury, and that the court did not err in denying Dewitz’s motion to dismiss for insufficient

evidence.

                                         Issue 7.

¶89    Did the prosecutor commit misconduct in her closing argument to the jury?

¶90    During the State’s rebuttal closing arguments, the prosecutor made the following

comments to the jury:

              MS. MORGAN [for the State]: . . . We really had nothing to tie
       [Ashley] to that room with the exception of the fact that she said she
       entered it when they first arrived at the hotel. If we had had something to
       tie [Ashley] to that room, we probably would have charged her.

                                         .   .    .

              [MS. MORGAN:] Furthermore, the defense makes issue over the
       presence of the plea agreement signed by [Ashley], and you guys will have
       a chance to review that. I would like to emphasize to you that plea
       agreements are not binding. They’re simply something that we give to the
       court and say, “Hey, I’m the prosecutor. I think that this is how this should
       be handled.”




                                             29
¶91    Dewitz argues that these statements were improper and prejudiced his right to a

fair and impartial trial. The State argues on the other hand that Dewitz failed to show that

the prosecutor’s statements were improper, let alone prejudicial.

¶92    A defendant must demonstrate that the alleged prosecutorial misconduct violated

his substantial rights in order for the Court to reverse a conviction. State v. Soraich, 1999

MT 87, ¶ 20, 294 Mont. 175, 979 P.2d 206 (citing State v. Arlington, 265 Mont. 127, 150,

875 P.2d 307, 325 (1994)). We will not presume prejudice from claims of prosecutorial

misconduct. Soraich, ¶ 20 (citing State v. Hildreth, 267 Mont. 423, 433, 884 P.2d 771,

778 (1994)).

¶93    In the instant case, we conclude that the prosecutor’s comments were not so

egregious as to deprive Dewitz of his right to a fair trial. In his closing argument,

Dewitz’s counsel directed the jury to the charges set forth in the Information filed against

Ashley and the plea agreement she entered into with the State, suggesting that Ashley

was not credible because of the plea agreement. Thus, counsel opened the door for the

prosecutor’s comments regarding the plea agreement, and, in rebuttal, the prosecutor

appropriately explained why it did not consider Ashley to be an accomplice. See State v.

Maier, 1999 MT 51, ¶ 93, 293 Mont. 403, 977 P.2d 298; State v. Whitlow, 285 Mont.

430, 445, 949 P.2d 239, 249 (1997).

¶94    Furthermore, as we stated previously in this Opinion, “[w]e will not put a district

court in error for an action in which the appealing party acquiesced or actively

participated.” Harris, ¶¶ 32-33.




                                             30
¶95    Accordingly, we hold that the prosecutor did not commit misconduct in her

rebuttal argument to the jury, and we affirm on this issue.

¶96    Affirmed.



                                                  /S/ JAMES C. NELSON



We Concur:

/S/ BRIAN MORRIS
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




                                             31
