                          No. 13769
         IN THE SUPREME COURT OF THE STATE OF MONTANA
                              1977


THE STATE OF MONTANA,
               Plaintiff and Respondent,


DIONISIO WILLIAMS,
               Defendant and Appellant.


Appeal from:      District Court of the Thirteenth Judicial
                   District,
                  Honorable Charles Luedke, Judge presiding.
Counsel of Record:
     For Appellant:

             John L. Adams argued, Billings, Montana
    For Respondent:
             Hon. Mike Greely, Attorney General, Helena, Montana
             J. Mayo Ashley argued, Assistant Attorney General,
              argued, Helena, Montana
             Harold Hanser, County Attorney, Billings, Montana

                                      --        ~   -




                               Submitted:   October 4, 1977
                                Decided :
Filed:   -
         L,.* -   7 2 7
M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion of
t h e Court  .
        Defendant Dionisio Williams was charged by a two count

Information f i l e d October 25, 1976, with t h e crimes of c a r r y i n g

a concealed weapon and i n t i m i d a t i o n , both f e l o n i e s .          A jury

t r i a l was h e l d i n t h e d i s t r i c t c o u r t , Yellowstone County, on

January 11, 1977.           A t t h e c l o s e of t r i a l , t h e jury returned a

v e r d i c t a c q u i t t i n g defendant of t h e crime of c a r r y i n g a con-

cealed weapon, b u t convicting him of the crime of i n t i m i d a t i o n .

Defendant was subsequently sentenced t o serve f i v e years i n

t h e s t a t e p e n i t e n t i a r y and has been    incarcerated since early

March 1977.        Defendant appeals the conviction and t h e d e n i a l

of h i s motion f o r a m i s w i a l made a t r t h e c l o s e of t h e s t a t e ' s

case.

        The f a c t s introduced by t h e s t a t e through testimony a t

t h e t r i a l were, i n c e r t a i n e s s e n t i a l r e s p e c t s , a t variance

with those o f f e r e d by defendant i n h i s t r i a l testimony.

        The p r i n c i p a l witness f o r the s t a t e was the complaining

w i t n e s s , Joe Thomas.      Thomas t e s t i f i e d , over o b j e c t i o n , t h a t

t h r e e weeks p r i o r t o October 19, 1976, t h e d a t e of t h e a l l e g e d

crimes, he purchased $10 worth of t h e drug "speed" from de-

fendant.       The purchase was made "on c r e d i t " .              Defendant denied

t h e s a l e of t h e drug, and s t a t e d he had, i n f a c t , merely "loaned"

$10 t o Thomas.

        On October 1 9 defendant saw Thomzs a t a B i l l i n g s b a r and

demanded payment.           Thomas was unable t o pay.                L a t e r t h a t day

Thomas, together with h i s g i r l f r i e n d and two o t h e r s , were

stopped f o r gas a t a s e l f - s e r v i c e gas s t a t i o n .      Defendant a r r i v e d
a t t h e s t a t i o n i n a c a r belonging t o and driven by h i s f r i e n d ,

Raymond Best.         Defendant got out of t h e c a r and approached

Thomas, again demanding payment of t h e $10.                  Thomas t e s t i f i e d

t h a t upon h i s explaining he could n o t g e t t h e $10, defendant

opened h i s c o a t , exposing         what appeared t o Thomas t o be t h e

b u t t of a revolver and "said he was going t o drop me" i f pay-

ment was n o t then made.            Defendant, however, denied having a

p i s t o l on h i s person a t t h e time, o r t h a t he threatened Thomas.

I n any e v e n t , Thomas obtained $10 from h i s g i r l f r i e n d and

immediately gave i t t o defendant.

       A t the c l o s e of t h e s t a t e ' s c a s e , defendant o r a l l y moved

f o r a m i s t r i a l on t h e ground t h e c o u r t e r r e d i n permitting

testimony concerning t h e drug t r a n s a c t i o n between defendant

and Thomas.        Defendant a l s o moved t o dismiss t h e i n t i m i d a t i o n

charge on t h e grounds of i n s u f f i c i e n c y of evidence o r , a l t e r -

natively, for a direct verdict.               A l l motions were denied.

       Defendant bases h i s appeal on two grounds:

       1.    Evidence of t h e a l l e g e d drug t r a n s a c t i o n was erron-

eously permitted by the d i s t r i c t c o u r t .

       2.    The evidence was i n s u f f i c i e n t t o support t h e conviction

of t h e crime of i n t i m i d a t i o n .

       Defendant contends t h e evidence p e r t a i n i n g t o t h e a l l e g e d

drug t r a n s a c t i o n was i r r e l e v a n t and immaterial and should

have been excluded a s being highly p r e j u d i c i a l .         He maintained

t h e evidence had no probative value and operated t o place

defendant i n t h e p o s i t i o n i n t h e eyes of t h e j u r o r s a s a "pusher"

who would by inference possess p r o p e n s i t i e s f o r v i o l e n t c r i m i n a l

behavior.       F u r t h e r , t h e evidence had minimal o r no value i n
e s t a b l i s h i n g t h e elements of t h e crime of i n t i m i d a t i o n , and

should have been excluded, o r a m i s t r i a l granted.

       A fundamental p r i n c i p a l , a p p l i c a b l e t o every c r i m i n a l

proceeding, i s t h a t t h e evidence must be r e l e v a n t t o t h e f a c t s

i n i s s u e a t t h e t r i a l and must l o g i c a l l y tend t o prove o r d i s -

prove such f a c t s .       Evidence of c o l l a t e r a l f a c t s which f a i l s t o

a f f o r d any reasonable presumption o r inference a s t o a p r i n c i p a l

f a c t o r matter i n d i s p u t e , o r evidence too remote, i s i r r e l e v a n t

and inadmissible.            S t a t e v. Sanders, 158 Mont. 113, 489 P.2d

371 (1971).

       I n Sanders, defendant was charged with t h r e e counts of

assault.      During t h e course of t r i a l testimony was presented

t o t h e j u r y which, among o t h e r t h i n g s , i n d i c a ted defendant

previously threatened a p o l i c e o f f i c e r upon r e c e i v i n g a speeding

c i t a t i o n , wrongfully f a i l e d t o pay wages due an employee, made

improper use of c r e d i t c a r d s , and p o s s i b l y b u r g l a r i z e d h i s own

business.       This Court, i n applying t h e above mentioned r u l e ,

concluded :

             "* * * The         a d m i s s i b i l i t y of such c o l l a t e r a l ,
       i r r e l e v a n t , and p r e j u d i c i a l evidence i n a c r i m i n a l
       proceeding c o n s t i t u t e s r e v e r s i b l e e r r o r."     158 Mont      . 118.
       Here, admission of evidence of the underlying reason

f o r t h e $10 d e b t , t h e a l l e g e d drug s a l e , was such a s t o have

made an impression on t h e jury and was highly p r e j u d i c i a l t o

defendant.        Given t h e obvious c o l l a t e r a l n a t u r e of such e v i -

dence and t h e prejudice engendered thereby, i t s admission

over proper o b j e c t i o n was e r r o r .        Defendant's motion f o r a

m i s t r i a l should have been granted.

       I n view of t h e Court's f i n d i n g on defendant's f i r s t i s s u e ,

i t i s unnecessary t o d i s c u s s t h e second i s s u e .
      Accordingly, the conviction i s reversed.   I t i s ordered

that defendant be released from confinement a t the Montana

s t a t e prison.   The case i s dismissed.




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