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                                                               No. 97-137

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                              2000 MT 157

                                                     STATE OF MONTANA,

                                                      Plaintiff and Respondent,

                                                                      v.

                                                        SUSAN HOCEVAR,

                                                     Defendant and Appellant.

                         APPEAL FROM: District Court of the Sixteenth Judicial District,

                                                 In and for the County of Custer,

                                       The Honorable Joe L. Hegel, Judge presiding.


                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                            Jay F. Lansing (argued); Moses Law Firm, Billings, Montana

                                                            For Respondent:

                        Hon. Joseph P. Mazurek, Attorney General; John Paulson (argued),

                                       Assistant Attorney General; Helena, Montana

                           Garry P. Bunke, Custer County Attorney, Miles City, Montana

                                                         For Amicus Curiae:

                            Joseph E. Thaggard, Montana County Attorneys' Association,

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                                                            Helena, Montana

                                                       Argued: October 1, 1998

                                                  Submitted: November 19, 1998

                                                        Decided: June 19, 2000

                                                                    Filed:

                                    __________________________________________

                                                                    Clerk

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

¶1 Susan Hocevar (Susan) was convicted by a jury of criminal endangerment with regard
to her son Wesley Hocevar's (Wesley) ingestion of an overdose of Benadryl. She appeals
from the judgment of the Sixteenth Judicial District Court, Custer County, finding by a
preponderance of the evidence that Susan exemplified Munchausen Syndrome By Proxy
(MSBP) and smothered her sons Zachary and Mathew, Jr. (Mathew) and considering that
conduct in sentencing Susan for the criminal endangerment conviction. The District Court
further found that she was not entitled to be classified a first-time nonviolent offender for
sentencing purposes. Susan appeals from the final judgment entered as to the criminal
endangerment conviction and from the District Court's denial of Susan's motion to dismiss
counts III, IV, and V of the Information upon double jeopardy grounds.

¶2 We affirm in part and reverse and remand in part.

                                                                   Issues

In reviewing the District Court's judgment we consider the following issues:

¶3 1. Whether the evidence was sufficient to support Susan's conviction of the felony
                                                                                                   (1)
offense of criminal endangerment under § 45-5-207(1), MCA.

¶4 2. Whether the jury was properly instructed on the elements of criminal endangerment.


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¶5 3. Whether Susan's motion for a new trial based on alleged juror misconduct was
properly denied.

¶6 4. Whether the videotapes of interviews with Wesley Hocevar should have been
admitted into evidence.

¶7 5. Whether the expert testimony on MSBP was properly admitted.

¶8 6. Whether Susan's motion to sever counts I and II and counts III, IV, and V for
separate trials was properly denied

¶9 7. Whether Dr. David Southall's testimony was properly admitted.

¶10 8. Whether evidence concerning Zachary Hocevar's death was properly admitted
pursuant to Rule 404(b), M.R.Evid.


¶11 9. Whether considering the deaths of Mathew and Zachary Hocevar in determining
Susan's sentence for criminal endangerment violated Susan's right to due process under
Article II, Section 17 of the Montana Constitution.

¶12 10. Whether Susan should have been classified a first-time, nonviolent offender for
sentencing purposes.

¶13 11. Whether Susan's renewed motion to dismiss counts III, IV, and V based on double
jeopardy grounds was properly denied.

a. Whether Susan's motion to dismiss counts III, IV, and V for insufficiency of the
evidence should have been granted, barring further prosecution pursuant to § 46-16-403,
MCA.

b. Whether further prosecution of counts IV and V is barred by the hung jury on Count III.

c. Whether further prosecution of counts III, IV, and V is barred by § 46-11-503, MCA?

                                                                    Facts

¶14 On the afternoon of May 21, 1992, Susan was baking cookies at the Hocevar family

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home in Miles City, Montana. Susan's then four-year-old son Wesley was not feeling well
and complained that his head hurt, so Susan put two Children's Tylenol tablets or a dose of
                     (2)
Tylenol elixir on the coffee table in the living room. At trial, Dr. Pezzarossi, who, with
her partner Dr. Young, had been Wesley's and his deceased brother Mathew's pediatrician,
testified that Susan later told her that there had been no water on the table. Pezzarossi also
testified that Wesley was not able to swallow capsules without water. Susan testified at
trial that Wesley had a cup of water. Also on the coffee table was a bottle of Benadryl
capsules without a cap. Susan habitually removed the plastic wrappers from Benadryl
capsules and put them in a bottle so that she would have quicker access to them at the
onset of an allergy attack. When Susan set the Children's Tylenol on the coffee table for
Wesley, about ten or twelve 25-milligram Benadryl capsules were remaining in the bottle.
Susan told Wesley to take his medicine and resumed baking cookies in the kitchen.

¶15 When Susan asked Wesley if he had taken his medicine, he replied, "I took all my
medicine." Susan continued baking cookies and a neighbor stopped by. Susan briefly
visited with him in the living room and noticed, after the neighbor had left, that her
Benadryl was gone. The Children's Tylenol was still sitting on the coffee table. Wesley
confirmed that he had eaten the Benadryl capsules. Pezzarossi testified at trial that Susan
later told her that she did not find pieces of the Benadryl on the floor, which might have
indicated that Wesley had not taken all of the Benadryl. Susan testified that Wesley had
tried to take other people's medicine on other occasions and that he had previously tried to
take more vitamins than he was supposed to take. Susan unsuccessfully tried to phone her
husband, Mathew Hocevar, Sr. (Mathew, Sr.), and then instructed the neighbor who had
just visited to pick up Mathew, Sr. from work. Susan then called the emergency room and
tried unsuccessfully to reach Dr. Young. Mathew, Sr. arrived at home and he and Susan
took Wesley to the emergency room at Holy Rosary Hospital in Miles City.

¶16 The hospital called Pezzarossi. Wesley's stomach was rinsed and he was given
activated charcoal and a laxative to quickly remove the Benadryl from his system.
Pezzarossi testified at trial that the Hocevars informed her that Wesley had ingested
approximately 250 to 300 milligrams of Benadryl and that Pezzarossi was aware at the
time of treating Wesley that the lethal dose for a child of Wesley's weight was 480
milligrams. She further testified that the symptoms of a Benadryl overdose include a fast
heart rate, dilated pupils, hallucinations, combativeness, agitation, and hyperactivity.
Pezzarossi testified that she observed hallucinations in Wesley. She also testified that she
was aware that an overdose of Benadryl could lead to seizures, but the record does not
reflect that Wesley suffered any seizures following the overdose. Wesley was placed in the

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Intensive Care Unit for observation overnight and was released on the following day.

¶17 Pezzarossi was concerned that Wesley's Benadryl overdose might not have been
accidental, partly based on her prior experience with Wesley's brother Mathew. Mathew
died in December 1991 at the age of ten months. Pezzarossi first saw then six-month-old
Mathew in August 1991, shortly after the Hocevars had moved to Montana from
California. Susan informed Pezzarossi that Mathew had been on an apnea monitor in
California, a device that alarms at a heart beat or respiration abnormality, because another
Hocevar child, Zachary, had died of Sudden Infant Death Syndrome (SIDS). Although
Mathew appeared normal to Pezzarossi, she therefore decided to prescribe another apnea
monitor for him.

¶18 Pezzarossi testified that subsequent to the August office visit, Mathew was
hospitalized several times and brought in for office visits several times, for problems
including seizures, viral infections, and diarrhea. At the time of Mathew's last office visit
on December 5, 1991, Pezzarossi testified that Susan felt that Mathew had been back to
normal for several days and that Pezzarossi's examination of Mathew was normal. On
December 19, 1991, Pezzarossi was summoned to the emergency room for a code blue (a
child undergoing cardiopulmonary resuscitation) involving Mathew. Mathew was unable
to breathe on his own and died the following day.

                                                                                                           (3)
¶19 Pezzarossi feared that Susan exhibited the symptoms of MSBP and consulted with
specialists about the situation. The Montana Department of Family Services removed
Wesley from the Hocevar home on May 22, 1992, the day he was released from the
hospital following the overdose. Wesley was place in a foster home for several weeks and
then lived with Mathew, Sr.'s parents. After an investigation, Wesley was returned to
Susan and Mathew, Sr. in November 1993. Susan gave birth to a girl, Chelsea, in April
1993, who was also placed in a foster home until being returned to Susan and Mathew, Sr.
in November 1993. Since then, the Hocevars have become parents to another girl. Susan's
sentence has been stayed pending this appeal, and she continues to reside in Miles City
with Mathew, Sr. and their three living children.

                                                     Procedural Background

¶20 On February 16, 1994, Susan was charged by information with commission of the
following offenses:


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Count I: Attempted Deliberate Homicide, in violation of § 45-4-103, MCA; or, in the
alternative to Count I only;

Count II: Criminal Endangerment, in violation of § 45-5-207, MCA;

Count III: Assault, in violation of § 45-5-201(1)(a) and (3), MCA;

Count IV: Deliberate Homicide, in violation of § 45-5-102(1)(b), MCA;

or, in the alternative to Counts III and IV only;

Count V: Deliberate Homicide, in violation of § 45-5-102(1)(a), MCA.

The Information alleged, with regard to counts I and II, that Susan had provided an
overdose of Benadryl to Wesley and, with regard to counts III, IV, and V, that Susan had
smothered Mathew.

¶21 The District Court granted Susan's motion for a change of venue and a jury trial
commenced in Billings on April 17, 1995. The court dismissed Count I after the close of
the State's case, finding that there was "insufficient evidence for the jury to find the
essential element of having a purpose to cause Wesley's death beyond a reasonable doubt."
On May 13, 1995, the jury returned a guilty verdict on Count II, but was unable to reach a
unanimous verdict on counts III, IV, and V. Susan filed motions for a new trial and to
dismiss the remaining counts on double jeopardy grounds. The District Court denied both
motions. On January 31, 1997, the District Court issued its sentencing memorandum,
committing Susan to the Department of Corrections for ten years. Susan moved for her
release pending appeal and the court stayed her sentence pending this appeal.

                                                                Discussion

                                                                   Issue 1

¶22 Whether the evidence was sufficient to support Susan's conviction of the felony
offense of criminal endangerment under § 45-5-207(1), MCA.

¶23 When reviewing whether evidence was sufficient to support a criminal conviction,
this Court views the facts in a light most favorable to the prosecution. The standard of
review is whether " 'any rational trier of fact could have found the essential elements of

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the crime beyond a reasonable doubt.' " State v. Larson (1992), 255 Mont. 451, 456, 843
P.2d 777, 780-81 (citations omitted).

¶24 Section 45-5-207, MCA, Montana's criminal endangerment statute, reads in pertinent
part: "A person who knowingly engages in conduct that creates a substantial risk of death
or serious bodily injury to another commits the offense of criminal endangerment." "A
person commits the offense of criminal endangerment when he is aware that there is a
high probability that his conduct may cause a substantial risk of death or serious bodily
injury to another." State v. Smaage (1996), 276 Mont. 94, 98, 915 P.2d 192, 195 (citing
State v. Crisp (1991), 249 Mont. 199, 203, 814 P.2d 981, 983). "Serious bodily injury" is
defined as "bodily injury which creates a substantial risk of death or which causes serious
permanent disfigurement or protracted loss or impairment of the function or process of
any bodily member or organ. . . ." Section 45-2-101(59), MCA. Susan contends that the
only applicable statutory definition of "serious bodily injury" is bodily injury that creates a
substantial risk of death, but the jury instruction contained the entire statutory definition.

¶25 Susan argues that her conduct alleged by the State, i.e., making the Benadryl available
to Wesley, did not actually create "a substantial risk of death or serious bodily injury."
Under Montana's criminal endangerment statute, the State did not have to prove that
Susan's conduct actually resulted in bodily injury to Wesley. What the State had to prove
was that Susan was aware that there was a high probability that making the Benadryl
available to Wesley created a specific result-a substantial risk of death or serious bodily
injury. A rational jury could have found that Susan's conduct created both a substantial
risk of death and of serious bodily injury based on the evidence the State presented at trial.

¶26 Susan's reliance on State v. Andrews (1995), 274 Mont. 292, 907 P.2d 967, is
misplaced. There, the defendant was charged with aggravated assault, which requires
proof that the defendant actually "purposely or knowingly cause[d] serious bodily injury
to another." Section 45-5-202(1)(a), MCA. Criminal endangerment, on the other hand,
does not require that the defendant actually caused death or serious bodily injury, but that
the defendant's conduct created a substantial risk of death or serious bodily injury. Susan
made approximately 250 to 300 milligrams of Benadryl available to Wesley. A lethal dose
of Benadryl for a child of Wesley's size is 480 milligrams. The District Court correctly
concluded that it was a jury question whether such an overdose poses a substantial risk of
death. Evidence that Wesley was actually in danger of dying from the overdose was not
required to prove the offense of criminal endangerment.



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¶27 Further, a rational jury could have found that Susan's conduct created a substantial
risk of serious bodily injury, defined as "bodily injury which causes serious permanent
disfigurement or protracted loss or impairment of the function or process of any bodily
member or organ. . . ." Section 45-2-101(59), MCA. Pezzarossi testified that an overdose
of Benadryl could lead to seizures. It is irrelevant that Wesley did not actually suffer any
seizures. Again, the criminal endangerment statute does not require actual injury, but risk
of injury. The evidence presented by the State was sufficient for the jury to convict Susan
of criminal endangerment pursuant to § 45-5-207(1), MCA, under either statutory
definition of serious bodily injury.

¶28 Finally, Susan contends that the State failed to prove that she knowingly made the
Benadryl available to Wesley. She speculates that by affirming her conviction, we open
the doors to such an expansion of the criminal endangerment statute that gun dealers and
pharmacists could subject themselves to criminal liability by making a firearm or
medication available to a person, knowing the firearm or medication could cause a
substantial risk of death if used in an improper manner. Indeed, a gun dealer would be
subject to criminal liability for placing a loaded firearm within reach of a four-year-old
child as would a pharmacist for placing medication within reach of a child. However, the
criminal liability of a mother who not only places medication in reach of her young child,
but next to the medicine she has instructed the child to take is hardly comparable to a gun
dealer selling a firearm or a pharmacist selling medication to a legal customer. The State
presented sufficient evidence that Susan knowingly made the Benadryl available to
Wesley by leaving ten to twelve capsules thereof in an open bottle on the same coffee
table that held the medicine Susan instructed Wesley to take.

¶29 Having reviewed the evidence in a light most favorable to the prosecution, we
conclude that a rational jury could have found beyond a reasonable doubt that Susan
knowingly engaged in conduct that created a substantial risk of death or serious bodily
injury to Wesley by making the Benadryl available to him.

                                                                   Issue 2

¶30 Whether the jury was properly instructed on the elements of criminal endangerment.

¶31 We review a district court's discretionary rulings in a criminal case to determine
whether the court abused its discretion. See State v. Sullivan (1994), 266 Mont. 313, 324,
880 P.2d 829, 836. We give broad discretion to a district court in formulating jury


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instructions. See State v. Goulet (1997), 283 Mont. 38, 41, 938 P.2d 1330, 1332 (citation
omitted).

        ¶32 The instruction given to the jury with regard to the criminal endangerment count
        read in relevant part:

        To convict the defendant of criminal endangerment, the State must prove the
        following elements:

        1. That the defendant engaged in conduct that created a substantial risk of

        death or serious bodily injury to Wesley Hocevar; and

        2. That the defendant acted knowingly.

The court also instructed the jury on the definition of "knowingly" by giving the then-
standard Montana instruction setting forth the statutory definition of knowingly. During its
deliberations, the jury asked three questions concerning the criminal endangerment
instruction: (1) Is making a mistake a criminal offense if it causes a risk? (2) Does
knowingly in the charge of Criminal Endangerment mean that the defendant was aware of
causing risk? (3) In regard to Criminal Endangerment and Instruction 19, does a person
only need to be aware of their actions, or, do they have to be aware that the consequences
of their actions constitute a substantial risk?

¶33 At issue in this appeal is the court's response to questions two and three. The court
gave an additional instruction, which the parties agreed upon, in response to the second
question and then referred the jury to that instruction in response to the third question. The
instruction consisted of the following statement, citing this Court's decision in State v.
Crisp (1991), 249 Mont. 199, 203, 814 P.2d 981, 983:

        A person commits the offense of criminal endangerment when she is aware of a
        high degree of probability that her conduct will cause a substantial risk of death or
        serious bodily injury to another.

The jury's questions certainly could have been answered more clearly and emphatically, i.
e., that the defendant must be aware of both conduct and risk. However, we find that the
jury was properly instructed with regard to the elements of criminal endangerment;
specifically, that the defendant had to be aware of her conduct and of the high probability
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of the risk posed by her conduct. The additional Crisp instruction properly states the law
from our decision in State v. Lambert (1996), 280 Mont. 231, 929 P.2d 846, which was
decided after the trial. There, we held that the " 'knowingly' element of criminal
endangerment contemplates a defendant's awareness of the high probability that the
conduct in which he is engaging . . . will cause a substantial risk of death or serious bodily
injury to another." Lambert, 280 Mont. at 237, 929 P.2d at 850.

¶34 The District Court did not abuse its discretion in instructing the jury on the elements
of criminal endangerment.

                                                                   Issue 3

¶35 Whether Susan's motion for a new trial based on alleged juror misconduct
wasproperly denied.

¶36 We review a district court's ruling on a motion for a new trial to determine whether
the court abused its discretion. Absent an abuse of discretion, we will affirm a district
court's decision concerning whether or not to grant a motion for a new trial. State v.
Walker (1996), 280 Mont. 346, 354, 930 P.2d 60, 64-65 (citations omitted).

¶37 During the course of the jury's deliberations, the District Court received several
questions and notes from the jury regarding one of the jurors, Joseph Sullivan (Sullivan).
The jury asked, "Can we discredit a juror?" The foreperson sent a note stating:

        I believe that 11 people sat down at the table Monday ready to deliberate. I believe
        one person set out to keep us from following the instructions, weighing the
        evidence, using our collective memory to weigh the evidence, studying the exhibits
        and deliberating this case.

The court received the following note from another juror requesting that the judge meet
with the foreperson:

        We have all been working together for the last week. Eleven of us have deliberated
        fairly and honestly. However, we have one juror who has manipulated the rest of us
        for 4 days. The eleven of us feel we have been betrayed and not allowed to do "our
        job" as specified by the court due to the narrow viewpoint of the one individual.



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¶38 Susan filed a motion for a mistrial based upon a breakdown in the deliberative process
of the jury, which the court denied. The jury returned a guilty verdict on the criminal
endangerment count. When the jurors were subsequently polled, Sullivan stated, "No, I've
changed my mind." The court directed the jurors to retire to the jury room to again
consider whether they could reach a unanimous verdict on the criminal endangerment
count. Shortly thereafter, the jury returned a unanimous verdict of guilty.

¶39 Following the trial, Susan moved for a new trial based in part on her contention that
juror misconduct had denied her a fair trial. In support, she introduced an affidavit
prepared by Sullivan alleging that he had been unaware of the jurors' notes and their
attempt to discredit him. Sullivan further alleged that he would not have changed his mind
back to guilty had he been aware of the jurors' allegations and notes to the judge. The State
moved to strike the affidavit pursuant to Rule 606(b), M.R.Evid. The court ordered the
affidavit stricken and found no evidence of juror misconduct, with or without the affidavit.
The court thus denied Susan's motion for a new trial.

¶40 Susan claims that the court erred in striking Sullivan's affidavit and denying her
motion for a new trial. Motions for a new trial are governed by § 46-16-702, MCA, which
states in relevant part that "the court may grant the defendant a new trial if required in the
interest of justice." Rule 606(b) of the Montana Rules of Evidence states in relevant part
that:

        [u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify
        as to any matter or statement occurring during the course of the jury's deliberations
        or to the effect of anything upon that or any other juror's mind or emotions as
        influencing the juror to assent or dissent from the verdict or indictment or
        concerning the juror's mental processes in connection therewith. Nor may a juror's
        affidavit . . . concerning a matter about which the juror would be precluded from
        testifying be received for these purposes.

As an exception to this rule, a juror may testify or submit an affidavit on matters
concerning:

        (1) whether extraneous prejudicial information was improperly brought to the jury's
        attention; or (2) whether any outside influence was brought to bear upon any juror;
        or (3) whether any juror has been induced to assent to any general or special verdict,
        or finding on any question submitted to them by the court, by a resort to the


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        determination of chance.

Rule 606(b), M.R.Evid. In striking Sullivan's affidavit, the court found that the exceptions
to Rule 606(b) did not apply, because the notes were part of the jury's deliberative process.
The court found that the jurors acted as they had been instructed: "you should not talk to
your fellow jurors about anything that you feel necessary to bring to the attention of the
judge."

¶41 The jurors' notes to the court constituted an entirely internal process and did not
introduce an extraneous or outside element into the jury's deliberative process. The jurors'
notes did not signal a breakdown in the jury's deliberative process as Susan contends. The
jurors had been instructed to bring questions and problems to the judge's attention. We fail
to see how the jurors' notes could have had any bearing on the issue of Susan's guilt or
innocence. Even assuming arguendo that the jurors' notes affected Sullivan's vote, such
testimony is prohibited by Rule 606(b), M.R.Evid., and the District Court properly struck
Sullivan's affidavit.

¶42 The District Court did not abuse its discretion in striking the affidavit and denying
Susan's motion for a new trial based on alleged juror misconduct.

                                                                   Issue 4

¶43 Whether the videotapes of interviews with Wesley Hocevar should have been
admitted into evidence.

¶44 In regard to evidentiary matters, it is within the district court's discretion to determine
whether or not evidence is relevant and admissible. See State v. Beavers, 1999 MT 260,
¶ 20, 987 P.2d 371, ¶ 20, 56 St.Rep. 1035, ¶ 20 (citation omitted). Absent a showing of an
abuse of discretion, we will not overturn the district court's determinations on evidentiary
matters. See Beavers, ¶ 20.

¶45 Following Wesley's overdose, Chief Robert Stabio (Stabio) of the Miles City Police
Department conducted two videotaped interviews of Wesley, on May 26, 1992 and on
June 2, 1992. At trial, the State did not call Wesley as a witness or attempt to introduce the
videotapes. Susan sought to introduce these videotapes during the defense's case-in-chief.
The District Court ruled that the videotapes were not admissible under any exception to
the hearsay rule.


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¶46 Susan contends that the videotapes of interviews with Wesley should have been
admitted into evidence under one of three exceptions to the hearsay rule: present sense
impression, recorded recollection, or other exceptions. Under Rule 803, M.R.Evid., the
following, among others, are not excluded by the hearsay rule even though the declarant is
available as a witness:

        (1) Present sense impression. A statement describing or explaining an event or
        condition made while the declarant was perceiving the event or condition, or
        immediately thereafter.

        ....

        (5) Recorded recollection. A memorandum or record concerning a matter about
        which a witness once had knowledge but now has insufficient recollection to enable
        the witness to testify fully and accurately, shown to have been made or adopted by
        the witness when the matter was fresh in the witness' memory and to reflect that
        knowledge correctly. If admitted, the memorandum or record may be read into
        evidence but may not itself be received as an exhibit unless offered by an adverse
        party.

        ....

(24) Other exceptions. A statement not specifically covered by any of the foregoing
exceptions but having comparable circumstantial guarantees of trustworthiness.

¶47 The present sense impression exception to the hearsay rule applies to out-of-court
statements that describe or explain an event or condition "made while the declarant was
perceiving the event or condition, or immediately thereafter," and is thus inapplicable in
this case. The timing element assures the trustworthiness of present sense impressions in
two ways: it reduces the likelihood of faulty recollection and precludes time for reflection.
See, e.g., Christopher B. Mueller and Laird C. Kirkpatrick, Evidence § 8.34 (1995).
Although we recognize that there could be a slight time lag between an event and the
declarant's description of that event, the declarant's statement must nonetheless reflect a
present sense impression rather than a description of events that were observed in the past.
Absent contemporaneousness or near-contemporaneousness of event and statement, the
inherent trustworthiness of a present sense impression is negated. In State v. Newman
(1973), 162 Mont. 450, 457, 513 P.2d 258, 262, which was decided prior to the adoption


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of the Montana Rules of Evidence but is nonetheless instructive on the timing element of
Rule 803(1), M.R.Evid., we held that a statement in reference to an event that occurred the
previous evening was not a present sense impression.

¶48 The videotaped interviews with Wesley were conducted five and twelve days after
Wesley's Benadryl overdose. At the time of the interviews, Wesley was not describing the
overdose as he was perceiving it nor immediately thereafter. Because the timing element is
not satisfied, Wesley's statements to Stabio five and twelve days after the overdose cannot
be considered trustworthy pursuant to the present sense impression exception. Enough
time had passed that Wesley's recollection of the events could have become faulty. Wesley
also had ample time for reflection during which he could have falsified or distorted the
events surrounding his overdose. The admission of the videotaped interviews was properly
denied under the present sense impression exception because its timing element was not
satisfied.

¶49 In order to admit evidence pursuant to the recorded recollection exception, the party
seeking to introduce such evidence must establish certain foundational requirements. By
its terms, Rule 803(5), M.R.Evid., requires the declarant to be a witness and requires that
the witness "has insufficient recollection to enable the witness to testify fully and
accurately." Wesley was not a witness at trial and Susan made no showing that Wesley
had insufficient recollection of the overdose. The court noted that "[t]he Defendant did not
demonstrate, or even make a proffer, that Mathew could not recollect or communicate
regarding the subject matter of the videotape," and held that the recorded recollection
exception did not apply. The admission of the videotaped interviews was properly denied
under the recorded recollection exception because its basic foundational requirement was
not satisfied.

¶50 Susan finally argues that the videotapes should have been admitted pursuant the
residual exception of Rule 803, which excepts from hearsay statements "not specifically
covered by any of the foregoing exceptions but having comparable circumstantial
guarantees of trustworthiness." Rule 803(24), M.R.Evid. The residual exception "look[s]
to the circumstances surrounding a hearsay statement when it is made-the 'circumstantial
guarantees of trustworthiness' that lend reliability to the hearsay statement in lieu of cross-
examination." State v. J.C.E. (1988), 235 Mont. 264, 272, 767 P.2d 309, 314. "Everything
that bears on the credibility of the speaker and the accuracy of his statement counts. . . ."
Christopher B. Mueller and Laird C. Kirkpatrick, Evidence § 8.65 (1995). We have held
that the residual exceptions "should be used sparingly, and only in exceptional

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circumstances." State v. Brown (1988), 231 Mont. 334, 338, 752 P.2d 204, 207.

¶51 Here, the District Court reviewed the videotapes and found that

        Mr. Stabio and Wesley did not communicate very well. There is a lot of
        inconsistencies, a lot of difficulty with times, staying focused on what Mr. Stabio
        wanted to say, and the Court cannot say that even at that time from that, that Wesley
        was a competent witness at that time. It just seems to me that he, initially, at the first
        interview, he was saying his mother told him-at first he said no, she didn't tell him to
        take them. He took them because he wanted to take them. And then she did tell him
        to take them. And then there was, how many were there? There were this many.
        And that means ten or five? It just doesn't seem to me that there is anything
        substantive that would assist the jury with respect to that . . . .

        The admission of the videotaped interviews was properly denied under the residual
        exception because the videotapes did not manifest circumstantial guarantees of
        trustworthiness.

¶52 The videotapes were not admissible pursuant to Rule 803, M.R.Evid., as present sense
impression, recorded recollection, or under the residual exception. The District Court did
not abuse its discretion in refusing to admit the videotaped interviews with Wesley into
evidence.

                                                                   Issue 5

¶53 Whether the expert testimony on MSBP was properly admitted.

¶54 In regard to evidentiary matters, it is within the district court's discretion to determine
whether or not evidence is relevant and admissible. See Beavers, ¶ 20. District courts are "
'vested with great latitude in ruling on the admissibility of expert testimony.' " State v.
Southern, 1999 MT 94, ¶ 48, 294 Mont. 225, ¶ 48, 980 P.2d 3, ¶ 48 (citations omitted).
Absent a showing of an abuse of discretion, we will not overturn a district court's
determinations on evidentiary matters. See Beavers, ¶ 20.

¶55 Susan challenged the admissibility of the MSBP expert testimony prior to trial. The
District Court preliminarily ruled that the testimony would be admissible and that the jury
was entitled to receive and weigh such evidence. The court noted that a further hearing


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outside of the presence of the jury might be necessary. The court conducted the hearing
prior to the testimony of one of the State's expert witnesses, Dr. Randall Alexander, a
Professor of Pediatrics. Alexander presented his prospective testimony. The court found
that the foundational requirement for admission of MSBP testimony had been satisfied and
allowed the State to present Alexander's testimony regarding MSBP to the jury.

¶56 Although both parties have framed their argument with regard to the admissibility of
the MSBP expert testimony around the Daubert standard, that standard is inapplicable
because it only applies to the admissibility of novel scientific evidence. See, e.g., Gilkey v.
Schweitzer, 1999 MT 188, ¶ 18, 295 Mont. 345, ¶ 18, 983 P.2d 869, ¶ 18 (citations
omitted). The expert testimony regarding MSBP is neither novel nor scientific. The term
"Munchausen Syndrome By Proxy" has appeared in medical literature since at least 1977.
Cf. State v. Southern, 1999 MT 94, ¶ 59, 294 Mont. 225, ¶ 59, 980 P.2d 3, ¶ 59 (holding
that microscopic hair comparison evidence was not novel because the Court had
considered several cases since 1978 and because comparing hair samples with a
microscope had been done for decades and therefore Daubert standards were not
applicable to determine its admissibility). While this Court has not previously addressed
the admissibility of MSBP evidence, other courts have considered such evidence since
1981. See California v. Phillips (1981), 175 Cal.Rptr. 703. A Westlaw search reveals that
the term "Munchausen Syndrome By Proxy" has appeared in over forty state and federal
cases since then. Thus testimony regarding MSBP is not novel to the field of pediatrics or
law.

¶57 Further, Alexander referred to MSBP as a form of child abuse in the field of
pediatrics, not a psychiatric disorder, and his testimony on MSBP is therefore not
scientific evidence subject to Daubert standards. Cf. Gilkey, ¶ 20 (holding that a
physician's expert opinion on informed consent constitutes specialized knowledge of a
medical professional, not novel scientific evidence).

¶58 Instead, we analyze the admissibility of the MSBP expert testimony under a
conventional Rule 702 analysis. Rule 702 of the Montana Rules of Evidence, identical to
its federal counterpart, states that:

        If scientific, technical, or other specialized knowledge will assist the trier of fact to
        understand the evidence or to determine a fact in issue, a witness qualified as an
        expert by knowledge, skill, experience, training, or education may testify thereto in
        the form of an opinion or otherwise.


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Under such an analysis, a court must, before admitting expert testimony, determine (1)
whether the subject matter requires expert testimony and (2) whether the putative expert
has either special training or education and has adequate knowledge on which to base an
opinion. Southern, ¶ 60. Regarding the first prong, we have held that " '[e]xpert testimony
is required in areas not within the range of ordinary training or intelligence.' " Hulse v.
State, 1998 MT 108, ¶ 48, 289 Mont. 1, ¶ 48, 961 P.2d 75, ¶ 48 (citation omitted).

¶59 We hold that testimony about MSBP is beyond the range of ordinary training or
intelligence and is therefore a subject matter requiring expert testimony. "[T]he dynamics
of child abuse and specifically MSBP are generally not within the knowledge of the
average juror." Lynn Holland Goldman & Beatrice Crofts Yorker, Mommie Dearest?
Prosecuting Cases of Munchausen Syndrome By Proxy, 13 WTR Crim. Just. 2629 (1999).
Cf. Southern, ¶ 61 (holding that microscopic hair comparison is beyond the range of
ordinary training or intelligence and therefore subject on which an expert may testify);
Hulse, ¶ 69 (holding that Horizontal Gaze Nystagmus test is beyond the range of ordinary
training or intelligence and therefore subject on which an expert may testify).

¶60 Having reviewed the transcript of the admissibility hearing, we also hold that the State
established sufficient foundation to show that Alexander was qualified to testify on MSBP
and that he had adequate knowledge on which to base an opinion in this case. The record
shows that the State sufficiently established Alexander's medical training and experience,
specifically his experience with MSBP. As a Professor of Pediatrics, Alexander had
written and taught on the subject. The State also established that Alexander had adequate
knowledge about the Hocevar family situation on which to base his diagnosis of MSBP.
Alexander testified that he was given the medical records on all the Hocevar children and
a variety of investigative statements as well as some information on Susan.

¶61 The District Court did not abuse its discretion in admitting expert testimony regarding
MSBP into evidence.

                                                                   Issue 6

¶62 Whether Susan's motion to sever counts I and II and counts III, IV, and V for separate
trials was properly denied.

¶63 In determining whether to grant a motion to sever, the trial court must balance the
possibility of prejudice to the defendant against the judicial economy which results from a

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joint trial. Judicial economy weighs heavily in the balancing process. This balancing
process is left to the sound discretion of the trial judge and absent an abuse of that
discretion, we will not substitute our judgment for that of the trial court. The burden of
showing prejudice rests on the defendant. In showing prejudice, it is not sufficient that the
defendant prove some prejudice or that a better chance of acquittal exists if separate trials
are held. Rather, the defendant must show the prejudice was so great as to prevent a fair
trial. State v. Richards (1995), 274 Mont. 180, 188, 906 P.2d 222, 226-27 (citations
omitted).

¶64 The District Court denied Susan's pretrial motion to sever the first two counts of the
Information, which concerned Wesley's Benadryl overdose, from the last three counts,
which concerned Mathew's death. Susan also cited the court's failure to grant the
severance in support of her motion for a new trial. The court reaffirmed its holding in
favor of joinder, holding that the counts related to Wesley's overdose and the counts
related to Mathew's death were "similar in nature and much of the proof, which includes
many out-of-state professional witnesses, would apply to all counts."

¶65 Section 46-11-404(1), MCA, states in relevant part:

        Two or more offenses or different statements of the same offense may be charged in
        the same charging document in a separate count, or alternatively, if the offenses
        charged, whether felonies or misdemeanors or both, are of the same or similar
        character or are based on the same transactions connected together or constituting
        parts of a common scheme or plan.

Section 46-13-211(1), MCA, states in relevant part:

        If it appears that a defendant . . . is prejudiced by a joinder of charges . . . in an . . .
        information . . . or by a joinder for trial together, the court may order separate
        trials . . . or provide whatever relief justice requires.

Susan contends that the joinder of counts I and II and counts III, IV, and V was improper
pursuant to § 46-11-404(1), MCA, and prejudicial pursuant to § 46-13-211(1), MCA.
Susan links this issue with her double jeopardy claim; however, we address the double
jeopardy claim separately in our analysis of Issue 11.

¶66 Susan contends that the joinder of the two sets of charges was improper under § 46-11-


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404(1), MCA, because they involve separate incidents: Wesley's May 1992 overdose,
which resulted in the alternate charges of attempted deliberate homicide and criminal
endangerment, and Mathew's 1991 death, which resulted in the alternate charges of
assault, felony murder and deliberate homicide. She argues that Wesley's overdose and
Mathew's death were dissimilar in victims, dates, and methods of commission, and were
not part of a common scheme or plan. In responding to this argument in District Court, the
State argued that joinder was proper because in both instances Susan injured or killed her
children in an attempt to draw attention to herself.

¶67 In Southern, ¶ 23, we held that joinder is proper "in cases in which the charges are
logically linked by motive and where overlapping proof must be offered." Here, the State,
under its MSBP theory, alleged that Wesley's overdose and Mathew's death were linked
by Susan's motive of drawing attention to herself by injuring or killing her children. The
expert testimony on the subject of MSBP concerned all counts of the Information. Joinder
of the charges resulting from Wesley's overdose and Mathew's death was proper pursuant
to § 46-11-404(1), MCA, because the offenses were logically linked by the MSBP motive
and the proof regarding all the charges overlapped.

¶68 Having decided that joinder was proper, we turn to the question whether joinder of the
charges resulted in unfair prejudice to Susan pursuant to § 46-13-211(1), MCA. We have
held that three types of prejudice may result from the joinder of charges:

        First, a jury may consider the criminal defendant facing multiple charges a "bad
        man" and accumulate evidence until it finds him guilty of something. Second, a jury
        may use proof of guilt on one count to convict the defendant of a second count even
        though the proof would be inadmissible at a separate trial on the second count.
        Third, prejudice may occur when the defendant wishes to testify on his or her own
        behalf on one charge but not another.

State v. Martin (1996), 279 Mont. 185, 192, 926 P.2d 1380, 1385 (citations omitted).
Susan contends that the first and second types of prejudice resulted from the joinder of the
charges against her. The State contends that Susan failed to meet her burden of
establishing any of the three types of prejudice.

¶69 Susan argues that the joinder of charges prejudiced her by portraying her as a "bad
person." She contends that the cumulative effect of the evidence presented during the
three-week trial resulted in the jury wanting to find her guilty of something, even if they


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could not convict her of deliberate homicide. The State contends that Susan did not
establish the first type of prejudice, relying on our holding in Martin that "a bald assertion
that the multiple charges and overlapping evidence 'invited' the jury to convict him is
insufficient to meet his burden of demonstrating the existence of this first type of
prejudice." 279 Mont. at 192, 926 P.2d at 1385. That holding is not quite applicable here.
Albeit not in great detail, Susan does more than "baldly assert" that the joinder of charges
prejudiced her. She contends that during the long trial, the State attempted to portray her
as a bad person and that the jury may have convicted her of "something" in order to
protect Wesley and Chelsea from further harm. Although Susan's claim of prejudice of the
first type may be plausible, this type of prejudice alone is not sufficient to warrant
severance. See State v. Richards (1995), 274 Mont. 180, 189, 906 P.2d 222, 227. See also
State v. Campbell (1980), 189 Mont. 107, 121-22, 615 P.2d 190, 198.

¶70 We turn to the second type of prejudice claimed by Susan, that the jury used proof of
guilt on one count to convict her of another count, even though the proof would have been
inadmissible at a separate trial. Susan's main contention with respect to this type of
prejudice is that the evidence presented at her trial was not simple and direct, as in State v.
Campbell (1980), 189 Mont. 107, 615 P.2d 190. In Campbell, we relied on the "rationale
that when the charges are few and the evidence straightforward, there is no reason to
assume the jury was confused and could not keep the relevant evidence separate."
Campbell, 189 Mont. at 122, 615 P.2d at 199. The State concedes that the evidence against
Susan was complex and largely circumstantial, but argues that Susan failed to make the
required showing under the second type of prejudice that proof on the first charge would
have been inadmissible at a separate trial on the second charge.

¶71 A review of the record reveals that Susan failed to satisfy the threshold requirement
for showing this type of prejudice-that the proof regarding Mathew's death would have
been inadmissible at a separate trial on charges regarding Wesley's overdose. Without
deciding whether such evidence would have been admissible at a separate trial, we
therefore hold that Susan has failed to meet her burden of showing prejudice of the second
type.

¶72 In attempting to sever the charges against her, it was Susan's burden to establish that
prejudice resulted from the joinder. See Martin, 279 Mont. at 197, 926 P.2d at 1388. We
conclude that Susan has failed to establish the existence of the first and the second types of
prejudice resulting from joinder of the charges against her.



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¶73 Moreover, joinder in this case promoted judicial economy, which weighs heavily in
the District Court's balancing process in determining whether to grant a motion to sever.
See Martin, 279 Mont. at 197, 926 P.2d at 1388. The District Court noted that many of the
expert witnesses at the three-week trial came from out-of-state and their attendance and
testimony at a separate trial would have required additional time and inconvenience for
them as well as the expenditure of considerable additional resources by the State.

¶74 Joinder of the charges against Susan was proper and did not result in prejudice. The
District Court did not abuse its discretion in denying Susan's motion to sever counts I and
II and counts III, IV, and V for separate trials.

                                                                   Issue 7

¶75 Whether Dr. David Southall's testimony was properly admitted.

¶76 The determination of whether proposed testimony is admissible as rebuttal testimony
in any given case is within the sound discretion of the District Court, and we will not
reverse the District Court's ruling unless it abused this discretion. See Massman v. City of
Helena (1989), 237 Mont. 234, 243, 773 P.2d 1206, 1211. The determination of "good
cause" for departing from the usual order of trial and permitting the State to reopen its
case-in-chief is left to the sound discretion of the district court. See State v. Snaric (1993),
262 Mont. 62, 69, 862 P.2d 1175, 1179 (citation omitted).

¶77 Susan presented a motion in limine concerning the scope of the expected rebuttal
testimony of Dr. David Southall, a Professor of Pediatrics from the United Kingdom. She
argued that Southall's testimony should be limited to an interpretation of the apnea
monitor recordings. The District Court ruled that Southall would be permitted to testify
regarding any matters to which the defense experts testified, but that his testimony should
be limited to matters of record at that time or matters contained within the medical records
to which the defense experts referred. The court further ruled that, to the extent Southall's
testimony might exceed the scope of rebuttal, it would be allowed pursuant to § 46-16-401
               (4)
(3), MCA.

¶78 In her motion for a new trial, Susan asked the District Court to reconsider this ruling
and the court held that Susan was neither surprised nor prejudiced by its allowing
Southall's rebuttal testimony. The court noted that it allowed Southall's testimony in
response to the defense's expert witnesses. In the alternative, it allowed Southall's

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testimony as part of the State's case-in-chief. The court noted that the State had given
notice that Southall, who had to travel from the U.K., would not be available early in the
trial and that the court had indicated that the defense would be allowed to call other
witnesses to address the issues brought up by Southall's testimony.

¶79 Susan alleges that Southall's rebuttal testimony should have been excluded on the
bases that it constituted unfair surprise and that it was not based on a "new matter" first
raised by the defense, but on primary allegations raised by the State in its case-in-chief.
While portions of Southall's testimony may have been outside the proper scope of rebuttal
testimony, the District Court specifically noted that "to the extent that [Southall's
testimony] might exceed the scope of rebuttal, that would be due to the inability to get
Doctor Southall here earlier. The Court will allow that under 46-16-401(3)."

¶80 Susan contends that no good cause existed to allow the prosecution to offer evidence
upon its original case pursuant to § 46-16-402, MCA. She states that Southall was not
contacted by the State until approximately a week or two prior to the trial, and defense
counsel was first notified approximately ten to fourteen days before the trial that Southall
may be called as a witness. Susan argues that the State offered no explanation as to why
Southall was not contacted earlier and that therefore Southall's unavailability during the
State's case-in-chief was attributable to the State's lack of diligence.

¶81 The District Court, in exercising its sound discretion whether to depart from the usual
order of trial and permit the State to reopen its case-in-chief, concluded that "[t]he State
had given notice early that Dr. Southall, who had to travel from England, would not be
available early in the trial. The Court indicated early on that it would allow Dr. Southall's
testimony and allowed the defense to call other witnesses to address the issues brought up
by Dr. Southall." Susan's contention that no good cause existed to depart from the usual
order of trial is not supported by the record. In State v. White (1980), 185 Mont. 213, 217,
605 P.2d 191, 193, this Court found good cause to depart from the usual order of trial
when the State had difficulty in locating the witness, even though that difficulty may have
been caused in part by the State's failure to subpoena the witness prior to trial. There, we
held that good cause existed because the State kept the trial court and the defendant
informed of its difficulty in locating the witness and of its intention to call the witness
when he was located. We also noted that, in permitting the State to reopen its case, the
trial court gave the defendant full opportunity to rebut the witness' testimony. White, 185
Mont. at 217, 605 P.2d at 193.



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¶82 Likewise here, even if Southall's unavailability early in the trial may be in part
attributable to the State not contacting him earlier, the State kept the trial court and the
defendant informed that Southall would not be available until the end of the trial. The trial
court informed Susan early on that it would allow Southall's testimony and that it would
allow the defense to call other witnesses to address the issues brought up by Southall's
testimony.

¶83 The District Court did not abuse its discretion in admitting Southall's testimony.

                                                                   Issue 8

¶84 Whether evidence concerning Zachary Hocevar's death was properly admitted
pursuant to Rule 404(b), M.R.Evid.

¶85 A district court has broad discretion to determine whether other crimes, wrongs or acts
evidence is relevant and admissible under Rule 404(b), M.R.Evid. See State v. Henderson
(1996), 278 Mont. 376, 379-80, 925 P.2d 475, 477-78. Absent a showing of an abuse of
discretion, we will not overturn a district court's determinations on evidentiary matters.
See Beavers, ¶ 20.

¶86 The State gave pretrial notice of its intent to introduce evidence of Zachary's death
pursuant to Rule 404(b), M.R.Evid., for the purposes of proving:

(1) that Susan engaged in a common plan or modus operandi pursuant to which she
unlawfully caused the deaths of Zachary and Mathew;

(2) that the death of Mathew and the poisoning of Wesley were neither natural nor
accidental; and

(3) that Susan's affliction with MSBP gave her motive to smother Mathew.

Susan filed a motion in limine to prohibit the State from introducing this other crimes,
wrongs or acts evidence. The District Court denied the motion following a hearing. Susan
renewed her objection to this evidence in her motion for a new trial. In denying the
motion, the District Court held that Zachary's and Wesley's medical histories bore
remarkable similarities regarding the phenomenon of MSBP and that Zachary's death was
thus admissible to show motive and absence of any other cause pursuant to Rule 404(b),
M.R.Evid., and State v. Matt (1991), 249 Mont. 136, 814 P.2d 52.

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¶87 Susan argues that, contrary to the State's Notice, the evidence of Zachary's death was
not intended to prove common plan or modus operandi, but to show Susan's "character," i.
e., MSBP, and that she acted in conformity with that character. Susan asserts that the State
used the evidence of Zachary's death to show that she suffered from MSBP and then used
MSBP as the common plan or motive for her actions against Mathew and Wesley.

¶88 Susan analogizes the introduction of evidence of Zachary's death to a situation where
the State seeks to introduce evidence of past burglaries to show a that defendant charged
with burglary is a kleptomaniac and acted in conformity with that diagnosis. We agree
with the State that this analogy is not apt. As the District Court noted in allowing the
MSBP evidence, MSBP is not a psychiatric diagnosis of a mental disorder, such as
kleptomania. Rather, MSBP is a pediatric diagnosis of a form of child abuse, where the
"disorder" consists of the behavior of the person suffering from it. Unlike in the case of a
mental disorder, there is no distinction between the disorder and the behavior associated
with that disorder. As such, MSBP does not describe Susan's character, but her behavior
toward her children.

¶89 The Modified Just Rule guides the District Court's discretion in admitting other
crimes, wrongs or acts evidence under Rules 404(b) and 403, M.R.Evid.:

(1) The other crimes, wrongs or acts must be similar.

(2) The other crimes, wrongs or acts must not be remote in time.

(3) The evidence of other crimes, wrongs or acts is not admissible to prove the character
of a person in order to show that he acted in conformity with such character; but may be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.

(4) Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the
jury, considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.

Matt, 249 Mont. at 142, 814 P.2d at 56. Applying the Modified Just Rule to the evidence of Zachary's
death, we conclude that the District Court did not abuse its discretion in allowing the evidence.


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¶90 We limit our discussion to the third and fourth requirements of the Modified Just rule.
Susan does not raise the second requirement in her briefs and cites no legal authority in
support of her argument that Zachary's death was not similar to Wesley's overdose.
Because Susan cites to no authority as required by Rule 23(a)(4), M.R.App.P., and
recognizing that she bears the burden of establishing error by the trial court (see Duck Inn,
Inc. v. Montana State Univ.-Northern (1997), 285 Mont. 519, 523, 949 P.2d 1179, 1181),
we decline to address her argument regarding the first requirement of the Modified Just
rule.

¶91 The evidence of Zachary's death was introduced to show motive and not, as Susan
contends, that she acted in conformity with her character-MSBP-in causing Mathew's
death and Wesley's overdose. The evidence was thus properly admitted under the third
requirement of the Modified Just rule because it was introduced to establish MSBP as
Susan's motive for smothering Mathew and poisoning Wesley, not to establish MSBP as
Susan's character and that she acted in conformity therewith.

¶92 Finally, Susan argues that the evidence of Zachary's death was inadmissible under the
fourth requirement because its probative value was substantially outweighed by the danger
of unfair prejudice, confusion of the issues, misleading the jury, considerations of undue
delay, and waste of time. With regard to counts I and II, concerning Wesley's overdose,
Susan contends that the evidence of Zachary's death caused undue prejudice and that,
because Alexander did not testify with certainty that Wesley's overdose was consistent
with MSBP, the evidence only served to mislead the jury, cause undue delay, waste of
time, and confusion of the issues. With regard to counts III, IV, and V, concerning
Mathew's death, Susan contends that the evidence of Zachary's death caused undue
prejudice because the State wanted the jury to be aware that two of the Hocevar children
had died, leaving them to question how this could happen absent some wrongdoing.

93 ¶This Court has previously recognized that other crimes evidence will inevitably have
some prejudicial effect on a defendant. See State v. Anderson (1996), 275 Mont. 344, 349,
912 P.2d 801, 804 (citing State v. Brooks (1993), 260 Mont. 79, 84, 857 P.2d 734, 737).
The evidence of Zachary's death had great probative weight because it tended to establish
the diagnosis of MSBP, which the State alleged as Susan's motive for smothering Mathew
and poisoning Wesley. While it is possible that the jury could have viewed the deaths of
two Hocevar children with suspicion, such inevitable prejudice does not rise to the level of
outweighing the probative weight of the evidence of Zachary's death.



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¶94 The District Court did not abuse its discretion in admitting evidence of Zachary'sdeath
pursuant to Rule 404(b), M.R.Evid.

                                                                   Issue 9

¶95 Whether considering the deaths of Mathew and Zachary Hocevar in determining
Susan's sentence for criminal endangerment violated Susan's right to due process under
Article II, Section 17 of the Montana Constitution.

¶96 Our review of questions of constitutional law is plenary. See State v. Anderson, 1998
MT 258, ¶ 6, 291 Mont. 242, ¶ 6, 967 P.2d 413, ¶ 6.

¶97 In the State's Supplemental Authority to its Sentencing Memorandum, it argued that
the District Court should consider Mathew's death in sentencing Susan. Susan argued that
it would be inappropriate to consider Mathew's death, which had been charged but resulted
in a hung jury. The District Court determined that it should consider all relevant testimony
in sentencing Susan, including testimony regarding the deaths of Mathew and Zachary.
The court found that, "[b]ased on the preponderance of the evidence, . . . Susan Hocevar
exemplifies Munchausen's Syndrome By Proxy and suffocated Zachary Hocevar and
Mathew Hocevar, Jr., and that the benadryl overdose may also be a manifestation of the
syndrome." The court noted that "[a]lthough the Court will consider such conduct
[Mathew's and Zachary's deaths], the Court's finding does not constitute a conviction of
such other offenses and the sentence the court imposes in this case is a sentence only for
the Criminal Endangerment charge and not for the other offenses."

¶98 We hold that considering the deaths of Zachary and Mathew in sentencing violated
Susan's right to due process under Article II, Section 17 of the Montana Constitution-
specifically the due process guarantee against having her sentence predicated on
misinformation-and we therefore do not reach the issue whether considering Zachary's and
Mathew's deaths in sentencing violated Montana's double jeopardy clause. We further do
not reach the issue whether United States v. Watts (1997), 519 U.S. 1144, 117 S.Ct. 633,
136 L.Ed.2d 554, or other federal cases may be applicable precedent.

¶99 We take notice of our decision in State v. Anderson, 1998 MT 258, 291 Mont. 242,
967 P.2d 413, which we decided subsequent to the filing of the briefs in this case. There,
we held that the double jeopardy clause of the United States Constitution did not bar
prosecution of a DUI charge that had previously been considered in sentencing on a


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separate conviction. In Anderson, we did not consider a due process challenge, but decided
the issue solely pursuant to the double jeopardy clause of the United States Constitution.

¶100 We have previously held that a convicted defendant " 'has a due process guarantee
against a sentence predicated on misinformation.' " Bauer v. State, 1999 MT 185, ¶ 21,
295 Mont. 306, ¶ 21, 983 P.2d 955, ¶ 21 (citing State v. Orsborn (1976), 170 Mont. 480,
486, 555 P.2d 509, 513). To help assure that the sentencing court does not rely on
misinformation, the defendant has an affirmative duty to present evidence showing the
inaccuracies contained in the presentence investigation report. See State v. McPherson
(1989), 236 Mont. 484, 490, 771 P.2d 120, 124 (citations omitted).

¶101 In Orsborn, which we cited with approval in Bauer, we held that a sentencing judge
could rely on facts outside of the presentence report in determining defendant's sentence,
provided that the defendant was given an opportunity to explain or rebut that information
at the presentence hearing. We held there that the sentencing judge had averted any danger
of relying on misinformation in sentencing and due process had not been offended by
admitting information outside of the presentence report because (1) the defendant was
represented by counsel at the time the sentencing information was made known to him; (2)
the defendant was provided an opportunity to rebut that information; and (3) the
defendant, rather than rebutting the information, chose to affirm its accuracy. See Orsborn,
170 Mont. at 486, 555 P.2d at 513 (citations omitted).

¶102 In State v. Baldwin (1981), 192 Mont. 521, 524, 629 P.2d 222, 224, we held that the
sentencing court could consider the underlying facts of a previous charge of which the
defendant had been acquitted. While we held that considering acquitted conduct did not
offend the double jeopardy clause, we pointed out that "[a] defendant is entitled to have
his sentence predicated on substantially correct information." Baldwin, 192 Mont. at 524,
629 P.2d at 224 (citations omitted). There, the sentencing judge relied on information in
the presentence investigation report, which contained the defendant's volunteered version
of the underlying facts of his previous acquittal. Baldwin, 192 Mont. at 524, 629 P.2d at
224. The defendant did not challenge the accuracy of the information at the sentencing
hearing. Baldwin, 192 Mont. at 525, 629 P.2d at 224.

¶103 Here, the District Court denied Susan due process by finding by a preponderance of
the evidence that she smothered Zachary and Mathew without affording her an
opportunity procedurally-during the sentencing phase-to challenge the accuracy of this
information, which was not contained in the presentence investigation report. The


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presentence investigation report makes no mention of including Zachary's and Mathew's
deaths in determining Susan's sentence; thus denying Susan the opportunity to challenge
the information at the sentencing stage.

¶104 Mathew's death was charged and tried with the charges relating to Wesley's
overdose. The charges relating to Mathew's death, however, resulted in a hung jury.
Although evidence as to Zachary's death was admitted during the guilt phase of the trial
pursuant to Rule 404(b), M.R.Evid., the State did not attempt to prove that Susan
smothered Zachary under any burden of proof. Thus Susan's effort at the trial was to raise
a reasonable doubt in regard to her guilt for Wesley's overdose and Mathew's death. The
facts regarding Mathew's and Zachary's deaths were highly disputed (as evidenced by the
jury's inability to reach a verdict on counts III, IV, and V) and the District Court, in order
to avoid relying on misinformation in sentencing Susan based on information outside of
the presentence investigation report, owed Susan the procedural opportunity to explain or
rebut this information during the sentencing stage.

¶105 We hold that the District Court denied Susan due process in considering Zachary's
and Mathew's deaths without giving her the opportunity to explain or rebut this
information during the sentencing phase of the trial. We reverse on this issue and remand
for resentencing consistent herewith.

                                                                  Issue 10

¶106 Whether Susan should have been classified a first-time, nonviolent felony offender
for sentencing purposes.

¶107 The District Court's refusal to classify Susan as a first-time nonviolent felony
offender involves a question of statutory interpretation. We review a district court's
interpretation of the law, including questions of statutory interpretation, to determine
whether the court's interpretation is correct. See State v. Montoya, 1999 MT 180, ¶ 16, 295
Mont. 288, ¶ 16, 983 P.2d 937, ¶ 16.

¶108 In her Sentencing Memorandum, Susan argued that she should be treated as a first-
time, nonviolent offender for sentencing purposes. In its Sentencing Memorandum, the
District Court found that "Susan Hocevar committed a violent offense inasmuch as she
caused serious bodily injury by causing a substantial risk of death. She is not entitled to be
treated as a first-time, non-violent offender."


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¶109 We agree with Susan that the District Court erred in refusing to classify her as a first-
time, nonviolent felony offender and sentencing her in accordance with the criteria for
sentencing nonviolent felony offenders set forth in § 46-18-225, MCA. Section 46-18-104
(3), MCA, defines "nonviolent felony offender" as "a person . . . who has been convicted
of a felony offense other than a crime of violence." The only relevant definition of "crime
of violence" is "a crime in which the offender causes a serious bodily injury or death to a
person other than himself." Section 46-18-104(2)(b), MCA.

¶110 Susan was convicted of criminal endangerment. As set forth under the discussion of
Issue 1, to convict Susan of criminal endangerment, the jury had to find that Susan's
conduct created a substantial risk of death or serious bodily injury. In contrast, § 46-18-
104(2)(b), MCA, requires that an offender actually cause a serious bodily injury or death.

¶111 In our discussion of Issue 1, we concluded that a rational jury could have found that
Susan's conduct created both a substantial risk of death and a substantial risk of bodily
injury. There, we did not agree with Susan's contention that the only applicable definition
of "serious bodily injury" was bodily injury that creates a substantial risk of death, but that
"bodily injury which causes serious permanent disfigurement or protracted loss or
impairment of the function or process of any bodily member or organ" was also an
applicable definition. While the jury could have convicted Susan under either statutory
definition of "serious bodily injury," we have no way of knowing on which definition the
jury relied.

¶112 In conclusion, a "crime of violence" is a crime in which the offender causes a serious
bodily injury. Given the various options that were given to the jury, we cannot tell from
the jury's verdict whether it found that Susan actually caused a "substantial risk of death"
or whether she merely caused the risk of "serious permanent disfigurement or protracted
loss or impairment of the function or process of any bodily member or organ." In light of
the uncertainty inherent in the definitions and the verdict, the District Court erred in
concluding that Susan had committed a "crime of violence."

¶113 We hold that the District Court erred in refusing to classify Susan a first-time,
nonviolent felony offender for sentencing purposes. We reverse on this issue and remand
for resentencing consistent herewith.

                                                                  Issue 11


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¶114 Whether Susan's renewed motion to dismiss counts III, IV, and V based on double
jeopardy grounds was properly denied.

¶115 The denial of a motion to dismiss in a criminal case is a question of law. See State v.
Weaver, 1998 MT 167, ¶ 43, 290 Mont. 58, ¶ 43, 964 P.2d 713, ¶ 43 (citations omitted).
Our standard of review of a district court's conclusions of law is plenary and we will
review the court's conclusions of law to determine whether those conclusions are correct.
See Weaver, ¶ 43 (citations omitted).

¶116 a. Whether Susan's motion to dismiss counts III, IV, and V for insufficiency of the
evidence should have been granted, barring further prosecution pursuant to § 46-16-403,
MCA.

¶117 Susan argues that the District Court abused its discretion in denying her motion to
dismiss counts III, IV, and V (motion for directed verdict of acquittal) on the basis of
insufficiency of the evidence. She maintains that the court should have ordered a directed
verdict of acquittal on the charges relating to Mathew's death and that such a verdict
would bar further prosecution as to those counts. The State argues that the court did not
abuse its discretion in denying Susan's motion because, as the District Court noted in
denying the motion, the court had already considered and ruled against Susan's
insufficiency of the evidence claim several times and did not see a reason to reverse its
rulings at that juncture.

¶118 A district court should grant a motion for directed verdict of acquittal only when
there is no evidence whatsoever to support a guilty verdict. State v. Campbell (1996), 278
Mont. 236, 246, 924 P.2d 1304, 1310-11 (citation omitted). A defendant is entitled to an
acquittal " 'if reasonable men could not conclude from the evidence taken in a light most
favorable to the prosecution that guilt has been proved beyond a reasonable doubt.' " State
v. Bromgard (1993), 261 Mont. 291, 293, 862 P.2d 1140, 1141 (citation omitted).

¶119 Here, although Susan points to testimony suggesting a contrary finding and notes
that she challenged the admissibility of some of this evidence, she acknowledges in her
Brief that some of the evidence presented at trial supported the State's theory that Susan
smothered Mathew. Dr. Gary Dale testified that in his opinion the cause of Mathew's death
was smothering. Further, our review of the transcript shows that Dale based his conclusion
"on a comprehensive review of all the records, the interviews, a very large amount of
data." Southall testified that "it is my opinion that [Mathew] was suffocated by his
mother." The fact that there is conflicting evidence in the record does not require that the

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court grant Susan's motion for a directed verdict of acquittal. The weight and credibility of
witnesses are exclusively the province of the trier of fact. See State v. Santos (1995), 273
Mont. 125, 131, 902 P.2d 510, 514. "In the event of conflicting evidence, it is within the
province of the trier of fact to determine which will prevail." Santos, 273 Mont. at 131,
902 P.2d at 514 (citation omitted).

¶120 It is clear from the record that a reasonable juror could have concluded from the
evidence taken in a light most favorable to the prosecution that guilt on counts III, IV, and
V was proved beyond a reasonable doubt. We therefore conclude that the District Court
did not abuse its discretion in denying Susan's motion for a directed verdict of acquittal
and that further prosecution of counts III, IV, and V is not barred on these grounds.

¶121 b. Whether further prosecution of counts IV and V is barred by the hung jury on
Count III.

¶122 Susan contends that the hung jury on Count III, felony assault, bars further
prosecution of counts IV and V. She relies on our decision in State v. Weinberger (1983),
206 Mont. 110, 131, 671 P.2d 567, 578, where we reversed a felony murder conviction
because we concluded that the evidence was insufficient to establish the underlying
felony. Here, Susan was neither acquitted of the underlying felony-assault-nor have we
concluded that the evidence was insufficient to establish felony assault. Further
prosecution of counts IV and V is not barred by the hung jury on Count III.

¶123 c. Whether further prosecution of counts III, IV, and V is barred by § 46-11-503,
MCA.

¶124 Susan contends, pursuant to the provisions of § 46-11-503, MCA, that further
prosecution of counts III, IV, and V, relating to Mathew's death, is barred by her
conviction of Count II, relating to Wesley's overdose. Section 46-11-503, MCA, states in
relevant part:

(1) When two or more offenses are known to the prosecutor, are supported by probable
cause, and are consummated prior to the original charge and jurisdiction and venue of the
offenses lie in a single court, a prosecution is barred if: (b) the former prosecution resulted
in a conviction that has not been set aside, reversed, or vacated; . . .

¶125 Susan argues that Count II and counts III, IV, and V are part of the "same
transaction" and that the former prosecution resulted in a conviction on Count II, which
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has not been set aside, reversed, or vacated. In denying Susan's motion to dismiss counts
III, IV, and V, the District Court rejected this contention and concluded that, "Counts I and
II dealt with the transaction involving Wesley's benadryl overdose and Counts III, IV and
V dealt with the transaction involving Mathew's death. A conviction of Count II does not
involve the same transaction as Counts III, IV and V and therefore does not constitute a
bar to the retrial of such counts."

¶126 The court relied on our decision in State v. Berger (1993), 259 Mont. 364, 856 P.2d
552, where we held that § 46-11-503, MCA, applies only to prosecutions arising from the
"same transaction," even after the 1991 amendments eliminated the "same transaction"
language from subsection (1) of the statute. Susan urges this Court to overrule Berger and
hold that in Berger, we violated a principle of statutory construction by adding the
requirement of "same transaction" to the plain language of § 46-11-503(1)(b), MCA. We
reaffirmed the "same transaction" requirement in State v. Waldrup (1994), 264 Mont. 456,
872 P.2d 772, and decline another invitation to reconsider our construction of § 46-11-503
(1)(b), MCA, here.

¶127 When Susan moved to sever the counts involving Wesley from the counts involving
Mathew pursuant to § 46-11-404(1), MCA, the State resisted and the District Court denied
the motion. Having successfully argued to the District Court that the Wesley counts and
the Mathew counts are part of the "same transaction" for purposes of joinder, the State is
then estopped from conveniently adopting a contrary position and arguing that the counts
are not part of the "same transaction" for purposes of further prosecution under § 46-11-
503, MCA.

¶128 Montana's joinder statute, § 46-11-404, MCA, provides in relevant part:

        Joinder of offenses and defendants. (1) Two or more offenses or different statements
        of the same offense may be charged in the same charging document in a separate
        count, or alternatively, if the offenses charged, whether felonies or misdemeanors or
        both, are of the same or similar character or are based on the same transaction
        connected together or constituting parts of a common scheme or plan.

The language of the joinder provision is broader than the "same transaction" language
used

in the former prosecution context. That is, the joinder provision does not limit joinder to

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charges arising out of the "same transaction connected together or constituting parts of a
                                      (5)
common scheme or plan ," but also includes charges which are of the "same or similar
character." The dissent points to this distinction in concluding that the charges against
Susan were joined, not because they were part of the "same transaction," but because they
were of "same or similar character" in that they involved similar victims, similar locations,
and were offenses of a similar nature.

¶129 The State's entire prosecutorial theme was that the counts all arose out of MSBP and
were thus part of the "same transaction." In opposing Susan's motion to sever, the State
was very clear as to its position:

        In this case, the State contends that Munchausen Syndrome by Proxy caused the
        Defendant to engage in a common plan whereby she injured her children. Moreover,
        the expert witnesses on the subject of Munchausen Syndrome by Proxy whom the
        State intends to call will provide testimony which concerns all of the counts of the
        Information. For those reasons the counts do constitute the same transaction
        connected together or constituting part of a common scheme for purpose of Mont.
        Code Ann. Sec. 46-11-404(1).

The State's position throughout this prosecution was that all the counts were part of the
"same transaction" as that term is used in Title 46 and, in particular, the joinder statute, §
46-11-404(1), MCA. Thus, although § 46-11-404(1), MCA, does allow joinder of offenses
of "same or similar character," as well as those arising out of the "same transaction," that
distinction is irrelevant here because the State's theory has always been that conduct
attributable to MSBP is part of the "same transaction."

¶130 The definition of "same transaction" is set forth in § 46-1-202(23), MCA. That
definition applies throughout Title 46 and thus encompasses both the joinder and the
former prosecution statutes. Having convinced the District Court that the counts were all
part of the same MSBP transaction for purposes of joinder, the State's contention that the
Mathew counts are not part of the "same transaction" for purposes of further prosecution
rings hollow.

¶131 Aside from the inconsistency inherent in the State's position, the fact is that the
Mathew counts and the Wesley count are part of the "same transaction" as defined in § 46-
1-202(23), MCA.


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        "Same transaction" means conduct consisting of a series of acts or omissions that
        are motivated by: (a) a purpose to accomplish a criminal objective and that are
        necessary or incidental to the accomplishment of that objective; . . .

Contrary to the dissent's contention that MSBP is not a "criminal objective," we determine
that the seeking of attention through harming one's children is a criminal objective. The
State's theory, which was supported by expert testimony, was that Susan engaged in a
series of acts towards Wesley and Mathew that were motivated by a desire to accomplish a
criminal objective (drawing attention to herself through harming her children) and that the
overdosing of Wesley and the smothering of Mathew were necessary to the
accomplishment of that objective. The Mathew counts and the Wesley count thus come
within the "same transaction" element of § 46-11-503, MCA.

¶132 We reverse the District Court's conclusion and hold that, under § 46-11-503, MCA,
any further prosecution of Susan for Mathew's death is barred by the former prosecution,
which resulted in a conviction on Count II, relating to Wesley's overdose.

¶133 Affirmed in part and reversed and remanded in part for further proceedings
consistent with this Opinion.

                                               /S/ W. WILLIAM LEAPHART

We concur:

                                                    /S/ JAMES C. NELSON

Justice Terry N. Trieweiler concurring.

¶134 I concur with the majority opinion. I write separately to specially concur with
subpart (c) to Issue 11 of the majority's opinion, found at paragraphs 125 to 133. While I
agree with the majority's resolution of Issue 11(c), I would arrive at that same result for
different reasons.

¶135 I would vote as I did in State v. Waldrup (1994), 264 Mont. 456, 460, 872 P.2d 772,
775, (Trieweiler, T., dissenting) to overturn State v. Berger (1993), 259 Mont. 364, 856
P.2d 552. Because the plain language of § 46-11-503, MCA, does not require that an
offense be part of the same transaction as a previously tried offense for the statute's bar to
apply, I conclude that further prosecution of Counts III, IV, and V are barred by the
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Defendant's conviction of Count II, and the plain language of § 46-11-503, MCA.

¶136 For these reasons, I concur with the result of the majority opinion, but do not agree
with everything stated in that opinion.

                                                /S/ TERRY N. TRIEWEILER

Justice William E. Hunt, Sr., joins in the foregoing concurring opinion.

                                                /S/ WILLIAM E. HUNT, SR.

Justice Jim Regnier concurring in part and dissenting in part.

¶137 I concur with the opinion of Justice Leaphart (hereinafter referred to as the "Court's
              (6)
opinion") with the exception of its analysis of the former conviction statute, § 46-11-
503, MCA, contained in subpart (c) to Issue 11. The issue in subpart (c) concerns whether
the District Court erred in concluding that Hocevar's conviction for Criminal
Endangerment in regard to Wesley's Benadryl overdose did not bar a subsequent
prosecution on the charges arising out of Mathew's death. Because I believe that Wesley's
Benadryl overdose and Mathew's death did not arise out of the same transaction, I would
vote to affirm the District Court. I take this opportunity to restate some of the relevant
facts.

¶138 On February 16, 1994, the State filed an Information charging Hocevar with two
offenses, stated in the alternative, stemming from her son Wesley's Benadryl overdose.
The State alleged that Hocevar had provided Wesley with Benadryl on May 21, 1992. The
State also charged Hocevar with three offenses stemming from the death of her son
Mathew from aspiration of vomitus. In regard to these charges, the State alleged that
Hocevar had smothered Mathew in December 1991.

¶139 On June 29, 1994, Hocevar filed a motion to sever Counts I and II, the charges
stemming from Wesley's Benadryl overdose, from trial on Counts III, IV, and V, the
charges stemming from Mathew's death, contending that joinder of these charges violated
§ 46-11-404, MCA. The District Court denied Hocevar's motion to sever. On May 12,
1995, the jury returned a verdict of guilty as to Count II, Criminal Endangerment, with
respect to Hocevar's conduct toward Wesley, but was unable to reach a verdict on Counts
III, IV, and V pertaining to Mathew's death.

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¶140 On May 22, 1995, the State filed a motion requesting the District Court to schedule a
trial date for Counts III, IV, and V of the Information. Hocevar filed a Renewed Motion to
Dismiss requesting that the District Court dismiss Counts III, IV, and V of the
Information. Hocevar contended that a second trial for Counts III, IV, and V was
prohibited by the plain language of § 46-11-503(1)(b), MCA (hereinafter also referred to
as the "former conviction statute"). On December 18, 1996, the District Court denied
Hocevar's motion to dismiss. The District Court concluded that pursuant to State v. Berger
(1993), 259 Mont. 364, 856 P.2d 552, a second prosecution on Counts III, IV, and V was
not barred because these charges did not arise out of the same transaction as Hocevar's
Criminal Endangerment conviction.

¶141 On appeal, Hocevar asserts that we should overrule Berger because in deciding
Berger we violated a principle of statutory construction by adding the requirement of
"same transaction" to our interpretation of § 46-11-503(1)(b), MCA. In the alternative,
Hocevar claims that Counts III, IV, and V relate to the same transaction as Count II and,
therefore, a subsequent prosecution on the charges relating to her conduct with respect to
Mathew's death is still barred under Berger. In this regard, Hocevar maintains that the
counts arising from Wesley's hospitalization and the counts arising from Mathew's death
are part of the same transaction for purposes of the former conviction statute because the
State contended, and the District Court agreed, that the counts could be joined for trial
under § 46-11-404, MCA.

¶142 The statute which Hocevar contends bars a retrial on the charges arising out of
Mathew's death is § 46-11-503(1)(b), MCA, which provides, in relevant part:

         Prosecution based on same transaction barred by former prosecution.(1) When
         two or more offenses are known to the prosecutor, are supported by probable cause,
         and are consummated prior to the original charge and jurisdiction and venue of the
         offenses lie in a single court, a prosecution is barred if:

.. . .

                  (b) the former prosecution resulted in a conviction that has not been set aside,
                  reversed, or vacated.




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¶143 I agree with the Court's conclusion that this provision only bars subsequent
prosecutions of offenses arising out of the "same transaction." See Berger, 259 Mont. at
368, 856 P.2d at 554. Accordingly, the remaining question is whether the charges
stemming from Mathew's death in December 1991 arose out of the same transaction as
Hocevar's Criminal Endangerment conviction which derived from Wesley's Benadryl
overdose in May 1992.

144 ¶When determining whether charges arose out of the same transaction for purposes of
the former conviction statute we have referred to the definition of same transaction
contained in § 46-1-202(22), MCA. See State v. Waldrup (1994), 264 Mont. 456, 459, 872
P.2d 772, 774. Section 46-1-202(22)(a), MCA, provides:

        "Same transaction" means conduct consisting of a series of acts or omissions that
        are motivated by:

(a) a purpose to accomplish a criminal objective and that are necessary or incidental to the
accomplishment of that objective . . . .

¶145 The charges related to Mathew's death and the charges related to Wesley's
hospitalization do not fit under the statutory definition of "same transaction" because
Hocevar did not engage in conduct consisting of a series of acts motivated by a purpose to
accomplish a single criminal objective. Rather, these events are the product of two
separate criminal objectives which happen to share a noncriminal motivation. In one
instance, Hocevar's alleged criminal objective was to smother Mathew. In the other,
Hocevar's criminal objective was to endanger Wesley by providing him with Benadryl.
These events are allegedly linked by Hocevar's noncriminal objective of seeking attention
(the MSBP evidence). However, the sole fact that in both instances Hocevar was seeking
attention does not bring these separate events within the definition of "same transaction."
Seeking attention is not a criminal objective under the same transaction provision.

¶146 In my view, the court erred by confusing Hocevar's criminal and noncriminal
objectives, thereby concluding that these separate events, Mathew's death and Wesley's
overdose, are part of the same transaction. This error is manifested by the Court's
conclusion that "the seeking of attention through the harming of one's children is a
criminal objective." Court's opinion at ¶ 131. The objective of harming a specific person (e.
g., Hocevar's son Mathew) has been criminalized, however, seeking attention has not.
What the Court misconstrues is the fact that while Hocevar's conduct with regard to


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Mathew is of a similar character as her conduct toward Wesley in that in both instances
Hocevar committed criminal acts in order to receive attention, these events did not arise
out of the same transaction because they did not share the same criminal objective. As
delineated above, these counts arise out of two separate and distinct transactions because
they have separate and distinct criminal objectives. One set of charges arose out of the acts
Hocevar committed in order to further the criminal objective of smothering Mathew. The
other set of charges arose out of the acts Hocevar committed in order to further the
criminal objective of harming Wesley. These crimes are of a similar nature in that they
both shared a noncriminal motivation, the seeking of attention.

¶147 Seeking attention is not a "criminal objective" in any sense under which we have
previously analyzed the former conviction statute. In my view the meaning of "criminal
objective" is fairly clear: a goal which has been criminalized. This is precisely how we
have previously analyzed it. For instance, had the State alleged that Hocevar poisoned
Wesley with a substance which was illegal to possess, a conviction for criminally
endangering Wesley would have prevented a subsequent prosecution for the illegal
possession of the poisonous substance. The unlawful possession of the poisonous
substance was necessary in order to accomplish the criminal goal of poisoning Wesley.
The two crimes would be united by a common criminal objective and thus be part of the
"same transaction."

¶148 I note that the facts of this case are remarkably similar to the facts of Waldrup in
which we held that multiple counts of indecent exposure filed against the defendant had
not arisen out of the same transaction as previous charges for which the defendant had
already been convicted. 264 Mont. at 459, 872 P.2d at 774. Like Hocevar, presumably
Waldrup repeatedly exposed himself in order to garner attention. However, we did not
conclude that the similarity in motive meant that the separate incidents were part of the
"same transaction" for purposes of the former conviction statute. This is because this
provision does not prohibit the subsequent prosecution of a defendant for other similar
offenses which share a similar noncriminal motivation.

¶149 A comparison of two decisions interpreting § 46-1-202(22)(a), MCA, clearly
supports the conclusion that smothering Mathew and providing Wesley with Benadryl are
not part of the same transaction. In State v. Sword (1987), 229 Mont. 370, 747 P.2d 206,
we concluded that the defendant had engaged in a series of acts for the purpose of
accomplishing the criminal objective of unlawfully taking a grizzly bear. The defendant
had pled guilty to violating the Endangered Species Act by knowingly possessing,

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carrying, and transporting a grizzly bear taken unlawfully. The State subsequently filed an
Information charging Sword with making false statements on a trophy license. The trophy
license authorized Sword to possess and transport the grizzly bear. We concluded that the
two charges arose from the same transaction because the false statements on the trophy
license were necessary to the accomplishment of the criminal objective of possessing,
carrying, and transporting a grizzly bear taken unlawfully. Sword, 229 Mont. at 374, 747
P.2d at 209.

¶150 In State v. Tadewaldt (1996), 277 Mont. 261, 922 P.2d 463, we concluded that a
former conviction for DUI did not bar a subsequent prosecution for criminal possession of
dangerous drugs because the acts were not motivated by the purpose to accomplish a
common criminal objective. The defendant in this case, Tadewaldt, was arrested for
driving under the influence. Immediately following his arrest, several pills were found in
his possession which were later identified as dangerous drugs. Tadewaldt pled guilty to a
DUI charge and moved to dismiss a separate prosecution for criminal possession of
dangerous drugs, asserting that it arose out of the same transaction. We stated:

        The drugs forming part of the criminal possession charge had not been ingested and
        did not contribute to Tadewaldt's impairment. Thus, in statutory terms, Tadewaldt's
        conduct in possessing the dangerous drugs was not motivated by a purpose to
        accomplish the "criminal objective" of DUI, nor was it necessary or incidental to
        that "objective."

Tadewaldt, 277 Mont. at 267, 922 P.2d at 466.

¶151 The paradigmatic example of charges arising out of the "same transaction" is Sword.
Sword engaged in a series of acts motivated by the purpose of furthering his single
criminal objective of taking a grizzly bear unlawfully. On the other hand, Tadewaldt did
not involve charges arising out of the same transaction, even though they arose out of the
same arrest, because the acts were not motivated by a single criminal objective. The facts
of the instant case are unlike the conduct at issue in Sword. Allegedly smothering Mathew
was not necessary or incidental to the accomplishment of harming Wesley by providing
him with an overdose of Benadryl. Rather, these incidents involved two separate criminal
objectives, smothering Mathew on the one hand and providing Benadryl to Wesley on the
other, which were similar in that they shared a noncriminal objective, gaining attention.
Undeniably, the Court's "same transaction" analysis is muddled by the combination of
criminal and noncriminal objectives contained in its conclusion that "the seeking of


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attention through harming one's children is a criminal objective."

¶152 It is clear that the actual reason for the Court's conclusion that the charges arose from
the same transaction for purposes of the former conviction statute is its belief that the State
adopted "contrary" positions on joinder and on the former conviction statute. The Court's
opinion states:

        Having successfully argued to the District Court that the Wesley counts and the
        Mathew counts are part of the "same transaction" for purposes of joinder, the State
        is then estopped from conveniently adopting a contrary position and arguing that the
        counts are not part of the "same transaction" for purposes of further prosecution
        under § 46-11-503, MCA.

Court's Op. at ¶ 127.

¶153 The Court's conclusion that the State has adopted contrary positions is based on a
misunderstanding of the State's positions on joinder and on the former conviction statutue.
The Court's opinion states:

        The State's theory, which was supported by expert testimony, was that Susan
        engaged in a series of acts towards Wesley and Mathew that were motivated by a
        desire to accomplish a criminal objective (drawing attention to herself through
        harming her children) and that the overdosing of Wesley and the smothering of
        Mathew were necessary to the accomplishment of that objective. The Mathew
        counts and the Wesley count thus come within the "same transaction" element of §
        46-11-503, MCA.



Court's Op. at ¶ 131.

¶154 Actually, the Court's representation of the State's positions as inconsistent is not
accurate. As the Court acknowledges, joinder and the applicability of the former
conviction statute are separate issues. The language of these provisions, the decisions
interpreting them, and the purposes which they further are distinct. The State's position on
joinder has nothing to do with its position on the former conviction statute. The plain
language of the joinder provision, § 46-11-404, MCA, does not limit joinder to charges
arising out of the "same transaction," but rather includes charges which are of a "similar

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character" or charges which are part of a "common scheme or plan."

¶155 The Court states that the State's entire prosecutorial theme was that all of the counts
arose out of the same transaction, referring to the State's brief supporting joinder. See
Court's Op. at ¶ 129. In fact, the State posed alternative arguments in its brief supporting
joinder. The State did assert that the counts arose out of "a common plan" in that they
were the product of Hocevar's MSBP pathology. However, the State also claimed that "[t]
he charges in Counts I and II are of the same or similar nature to those in Counts III, IV
and V" and should be joined because of their "striking similarity." (Emphasis added.)
From these assertions, the Court draws the conclusion that the State is "estopped from
conveniently adopting" a subsequent position on the former conviction statute which is
                                                                                                                     (7)
inconsistent with one of its alternative arguments in its brief in support of joinder.

¶156 As the Court observes throughout its opinion, the essence of the State's position on
joinder was that joinder of the charges was proper because "in both instances Susan
injured or killed her children in an attempt to draw attention to herself" and the State
intended to call expert witnesses on MSBP which would be relevant to all the charges.
Court's Op. at ¶¶ 66, 67, and 130. Significantly, the Court acknowledges that the District
Court joined the charges for trial, not because they arose from the same transaction, but
because the counts were "similar in nature and much of the proof . . . would apply to all
counts." Court's Op. at ¶ 64 (emphasis added). We correctly affirmed the District Court's
joinder of the charges not because they arose from the same transaction, but rather because
the counts were "logically linked by the MSBP motive and proof regarding all the charges
overlapped." Court's Op. at ¶ 67. Had the State argued that the charges could be joined for
the sole reason that they were a series of acts motivated by the purpose to commit a single
criminal objective, and more importantly, had the District Court agreed, it would have
been error to have affirmed on that basis because, as noted above, the charges could not
have been part of the "same transaction" for purposes of joinder-they did not share a
"single criminal objective." Section 45-2-101(7), MCA (emphasis added).

¶157 The State's actual position with regard to the former prosecution statute was that
Hocevar's conduct in relation to Wesley's overdose was "not necessary or incidental to the
accomplishment of any criminal objective related to the conduct alleged [with respect to
Mathew's death]." (Emphasis added.) It is clear to me that the State correctly maintained
that the charges could be joined because they were of a similar nature and logically linked
by evidence of motivation while at the same time maintaining that Hocevar's conviction
did not bar a subsequent prosecution because Mathew's death was not incidental or

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necessary to the accomplishment of Wesley's overdose. In no way are these positions
inconsistent.

¶158 The resolution of this issue does not depend on one of the State's alternative
arguments in its brief supporting joinder below, that is simply a red herring. The precise
issue, as correctly framed by the Court, is "[w]hether further prosecution on counts III, IV,
and V is barred by § 46-11-503, MCA." Court's Op. at ¶ 123. I would conclude that a
conviction on one of the charges relating to Wesley's overdose does not preclude a
subsequent prosecution on the charges relating to Mathew's suffocation because they do
not arise out of the "same transaction." The conduct underlying the charges occurred on
different dates, involved different victims, and, while they shared a common explanation
of motive, the MSBP evidence, the acts were not in furtherance of a common criminal
objective. Hocevar did not smother Mathew in order to further the criminal objective of
endangering Wesley, nor was the smothering of Mathew necessary or incidental to
Wesley's overdose.

¶159 Accordingly, I would affirm the District Court conclusion that a subsequent
prosecution on charges arising from Mathew's death was not precluded on account of a
previous conviction arising from Wesley's overdose.

                                                         /S/ JIM REGNIER

Chief Justice Jean A. Turnage and Justice Karla M. Gray, join in the foregoing dissenting

opinion.

                                                        /S/ J. A. TURNAGE

                                                      /S/ KARLA M. GRAY




1. Unless otherwise noted, the 1991 version of the Montana Code is cited throughout this Opinion.

2. At trial, Susan testified that she put tablets on the coffee table, but Dr. Pezzarossi testified that Susan
told her on the day following the overdose that she had set out a dose of elixir.



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3. MSBP, also known as factitious disorder by proxy, is a form of child abuse and refers to a pattern of
behavior where a caretaker, usually a mother, fabricates or causes illness in another, usually a preverbal
child, to gain attention.

4. Section 46-16-401(3), MCA, regarding the order of trial, states: The prosecutor and the defendant
may, respectively, offer rebutting testimony only. However, the court, for good cause, may permit either
party to offer evidence upon the original case at any time before the close of evidence.

5. We note that the definition of "common scheme" under § 45-2-101(7), MCA, is virtually identical to
the definition of "same transaction," as set forth under § 46-1-202(23), MCA, and is therefore
synonymous with "same transaction" for purposes of applying that portion of the joinder statute.

6. I refer to the "Court's opinion" rather than the "Majority opinion" for the following reason: the "same
transaction" analysis contained in subpart (c) to Issue 11 of Justice Leaphart's opinion has been joined by
only one other member of the Court, Justice Nelson. Justices Trieweiler and Hunt concur in the Court's
result, barring a retrial of the charges arising from Mathew's death, but on different grounds. They
contend that the former conviction statute bars subsequent prosecutions regardless of whether the charge
which forms the basis of the subsequent prosecution arose out of the "same transaction." Therefore,
although a majority of the Court would reverse the District Court and bar a retrial on Counts III, IV, and
V of the Information, there is no majority opinion on that issue.

7. I am not aware of any previous case in which we concluded that a party could be held to one of its
alternative arguments for purposes of all subsequent legal issues which arise during litigation; nor,
apparently, is the Court, thus the lack of citation to any authority. See Court's Op. at ¶ 127.




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