                             NO.    93-115
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1993


THE STATE OF MONTANA,
          Plaintiff and Appellant,
     v.
NEIL K. ANDERSEN and
THOMAS RIPPINGALE,
          Defendants and Respondents.



APPEAL FROM:   District Court of the First Judicial District,
               In and for the County of Lewis and Clark,
               The Honorable Thomas C. Honzel, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Hon. Joseph P. Mazurek, Attorney General:
               Elizabeth L. Griffing, Assistant Attorney
               General, Helena
               Mike McGrath, County Attorney, Helena
          For Respondents:
               Nicholas C. Jacques, Helena (Rippingale)
               Gregory A.      Jackson,      Jackson   &   Rice,   Helena
               (Andersen)




                                   Submitted on Briefs:    June 23, 1993
                                               Decided:    September 16, 1993
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
     The State appeals from a pretrial order granting a defense
motion in limine.          The order bars the State from presenting at
trial evidence of past uncharged criminal conduct of defendant
Thomas     Rippingale.     We affirm the order entered by the District
Court for the First Judicial District, Lewis and Clark County.
     The issue is whether the District Court abused its discretion
in granting the motion in limine.
     The defendants, Neil Andersen and Thomas Rippingale, have been
charged by information with conspiracy and solicitation.               The
conspiracy charge alleges that Rippingale agreed with Andersen and
Bryan Hardy to commit arson by burning down a mansion owned by
Andersen.       The      solicitation   charge   alleges   that Rippingale
solicited Hardy to steal a pickup truck owned by Andersen.           Trial
on these charges has not yet occurred.
      The State filed a notice of intent to introduce at trial
evidence of a previous conspiracy to commit arson at a duplex owned
by Rippingale, pursuant to the notice requirements of State v. Just

(1979),    184 Mont. 262, 602 P.2d 957, as modified in State v. Matt

(1991) I    249 Mont. 136, 814 P.2d 52.          The State also sought to
introduce evidence of the theft of a pickup truck in 1980.             The
proposed evidence connecting Rippingale to both uncharged criminal
acts would consist primarily of Hardy's testimony.
     Rippingale moved in limine to bar the State from introducing

the evidence of the duplex fire and the theft of the pickup truck.
                                        2
The motion was submitted to the District Court on briefs and was
granted in a written memorandum and order. The court later denied
the State's motion for reconsideration.    The State then filed its
notice of appeal,   appealing only the portion of the District
Court's order suppressing evidence of the prior conspiracy to
commit arson at Rippingale's duplex.


     Did the District Court abuse its discretion in granting the
motion in limine?
     The standard for appellate review of evidentiary rulings is
whether the district court abused its discretion.         State v.
Sadowski (1991), 247 Mont. 63, 69, 805 P.2d 537, 540.   We will not
overturn a district court's findings of fact regarding suppression
hearing evidence unless   those findings are clearly erroneous.
State v. Bower (1992), 254 Mont. 1, 7, 833 P.2d 1106, 1110.
     The District Court's ruling was made under the modified Just
rule, after the courtweighedthe following requirements concerning
admissibility of evidence of prior acts:
     (I-) The other crimes, wrongs or acts must be similar to
     the crime charged:
     (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 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, knowl-
     edge, identity, or absence of mistake or accident:

                                 3
        (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.

-I 814 P.2d at 56.
Matt
        The Just notice filed by the State identified "the fires which
occurred at the Rippingale duplex on or about February 3, 1987."
As the defense points out,       the duplex fire with which Hardy has
confessed involvement occurred in late January of 1987.           The duplex
was destroyed by a different fire, which occurred on February 3,
1987.    Hardy has professed no connection with the February 3 fire,
and from its review of the record, the District Court found that
the January fire did not cause significant damage to the duplex.
The court, however,      treated the two duplex fires as a unit for
purposes of considering the motion in limine.
        The State asserts that the District Court abused its discre-
tion by:      1)   underestimating   the   relevance   and   significance   of
other crimes evidence in conspiracy cases; 2) applying too strict
a similarity standard and comparing the characteristics of the
fires rather than the characteristics of the conspiracies: and 3)
finding that the prejudicial effect of the prior acts substantially
outweighed the probative value of the evidence.              We will address
these arguments in the order in which the State has presented them.
        Rule 404(b), M.R.Evid., provides that
        [elvidence of other crimes, wrongs, or acts is not
        admissible to prove the character of a person in order to
        show action in conformity therewith. It may, however, be
                                      4
     admissible for other purposes, such as proof of motive,
     opportunity,   intent, preparation,   plan,  knowledge,
     identity, or absence of mistake or accident.
This rule of evidence is restated in the third requirement under
the modified Just rule.     Matt 814 P.2d at 56.
                            -I                     The State asserts
that evidence of a previous agreement between Hardy and Rippingale
to start a fire is admissible under this rule because of its
relevance to the description, purpose, and nature of the charged
conspiracy.   In its Just notice, the State described the purpose of
introducing the evidence as "to show intent, motive, plan, and to
show the long-standing involvement of these two men in criminal
activity as accomplices."
     In its order granting the defense's motion in limine, the
District Court stated "the fact that Hardy and Rippingale may have
a history of criminal involvement is not a permissible purpose
under Rule 404(b)." However, this was not the primary reason for
the court's ruliny.
     The primary reason given by the District Court for its ruling
is that the fires at Rippingale's duplex are not sufficiently
similar to the mansion fire.   This determination reflects the first
factor under the modified Just rule.
     The State asserts that all the differences listed by the
District Court between the charged crime and the offered evidence
relate to the nature of the fires.    That is not true.   The court's
order refers to ,the absence of evidence that the motives for
starting the fires at the duplex and at the mansion were the same,
                                  5
because there is no evidence that Rippingale benefitted financially
from the mansion fire.   The court also noted that the two buildings
were not owned by the same person and that Hardy did not receive
any payment for the fire at the Rippingale duplex but may have
received something from the mansion fire.
     In further support of its argument that the District Court
applied too strict a standard on similarity, the State compares
this case with other Montana cases in which the admissibility of
evidence of other acts or crimes was at issue.                The    persuasive
value of this line of argument is limited for two reasons.              First,
rulings on admission of evidence of prior acts must be made on a
case-by-case basis.    Sadowski,   805    P.2d at 543.     The Montana cases
cited by the State deal with a wide variety of crimes, assorted
purposes for introduction of the proposed evidence, and diverse
other crimes, wrongs, or acts.      These variables impede comparison
of the cases.
     Second,    we emphasize our standard of review,               which is to
affirm the district courts' discretion absent clear error.                  The
effect of this standard of review is demonstrated not only in the
Montana cases cited by the State, but also in the federal cases
cited, which are more factually          similar to   this case.    Overwhelm-
ingly, the appellate decisions affirm the discretionary rulings of
the trial courts.
     The District Court stated that 'I [e]ven if the similarity prong
of the test can be considered satisfied, the evidence should still
                                    6
not be admitted because     its probative value is    substantially
outweighed by the danger of unfair prejudice to [Rippingale]."
Unlike the proposed evidence in many cases, the proposed evidence
in this case is uncorroborated testimony of an alleged accomplice.
Moreover, it appears from the record that the credibility of Hardy,
thealleged accomplice, will be hotly contested at trial on several
bases.   This raises significant questions about the probative value
of the proposed evidence.     On the other hand, there is obvious
prejudicial potential in allowing the proposed evidence as an
indication of a long-standing involvement of Hardy and Rippingale
as accomplices in criminal activity.
     We conclude that the District Court did not abuse its
discretion in granting the defense motion in limine prohibiting the
use at trial of the proposed evidence.     We therefore affirm the
decision of the District Court.




We concur:




             Justices
                                  7
Justice Fred J. Weber dissents as follows:

        As presented in the majority opinion, I will discuss the
assertions by the State that the District Court abused its

discretion by: (1) underestimating the relevance and significance

of   other   crimes      evidence   in   conspiracy      cases;   (2) applying too

strict a similarity standard and comparing the characteristics of

fires rather than the characteristics of the conspiracies: and (3)
finding that the prejudicial effect of the prior acts substantially

outweighed the probative value of the evidence.

        Relevance     and     sisnificance       of   other crimes     evidence in
conswiracv      cases.      The majority opinion does not discuss this at

length.      I conclude it is the primary issue.              The majority opinion

does point out that the District Court stated: "The fact that Hardy
and Rippingale may have a history of criminal involvement is not a

permissible purpose under Rule 404(b)."                  I conclude the District

Court     was   in    error    in   stating       that   a   history   of   criminal

involvement was not a permissible purpose.                        Defendant    Thomas

Rippingale is charged by information with conspiracy.                       The State

cited     Imwinkelried, Uncharsed Misconduct Evidence 5 4.22, which

describes the unique proof which a conspiracy prosecution requires,

and points to the relevance of the past relationships of criminal

involvement in a conspiracy case.                Imwinkelreid     states:

             Suppose that the defendant is charged with a
        conspiracy.     Under  substantive   criminal   law,  the
        prosecutor must showthatthe defendant performed the act
        of entering into an illegal agreement with the alleged
        coconspirator or coconspirators.     The prosecutor has
        evidencethatthe defendant and the alleged coconspirator
        have had prior illegal dealings.      May the prosecutor
        offer that evidence to prove the act of entering into the

                                             0
     charged illegal      agreementwithoutviolatingthe    character
     prohibition?
          Numerous cases allow the vrosecutor to do nreciselv
     that
     -.       In vrincivle. this is a leaitimate use of
     uncharaed misconduct evidence.     The prosecutor is not
     merely offering evidence of the defendant's prior
     misconduct with third parties and arguing that since the
     defendant once entered into an illegal transaction, he or
     she probably entered into the charged illegal agreement.
     Rather. the vrosecutor is offerina evidence of the
     defendant's    svecial   relationshiv    with  the   same
     coconsvirator involved in the charaed consviracv and
     contendins that the earlier,        svecial relationshin
     increases the likelihood that thev entered into the
     later, charaed consviracv.       This theory of logical
     relevance is tenable.     It is unlikely that a criminal
     would approach a complete stranger with a proposal for an
     unlawful conspiracy. It is much more vlausible that the
     defendant will avvroach someone the defendant trusts and
     someone whom the defendant knows is willina to enaaae in
     illeaal activity.    This is a vermissible noncharacter
     theorv          a      relevance.   (Footnotes omitted.)
     (Emphasi~fsu&$li!s?)
Imwinkelried, Uncharaed    Misconduct Evidence 5 4.22       I agree with
Imwinkelried's   conclusion      that     the   relationships    between
coconspirators are both permissible and relevant where a conspiracy
has been charged.      Here the relationship between Hardy and
Rippingale is of central importance to a prosecution.           In United
States v. Jones (11th Cir. 1991),       933 F.2d 1541, 1546, the circuit
court concludedthatevidence of another crime among coconspirators
was relevant not only to motive and intent, but also "to explain
the relationship" among them.     That theory is directly applicable
in the present case.      In a similar manner, in United States v.
McKay (9th Cir. 1985), 771 F.2d 1207, 1214, the Ninth Circuit
concluded that evidence of other crimes was admissible to "explain
the nature of    the relationship"         between   coconspirators   and
acknowledged that "evidence of prior criminal acts may be relevant
in conspiracy cases to show the background and development of the

conspiracy."      In its Modified Just Notice in the present case, the
State    listed    the   involvement    of    these   two   men     in    criminal

activities as accomplices as one of its purposes.              I believe that
was clearly relevant.

        Evidence of a past relationship between Rippingale and Hardy

constituted a foundation upon which a subsequent conspiracy could

be built.     The District Court concluded that it was relevant that
Rippingale received $40,000 in insurance proceeds from the duplex

fire while Anderson received over $400,000 from the mansion fire.
I do not believe that the receipt of the monies by different

parties destroys the conspiracy aspect.            In its notice, the State

also proposed that the evidence of prior conspiracy was relevant to

the issues of motive,       intent and plan and I believe those are

properly a basis for admission as well.
        I therefore conclude that under part (3) of the Modified Just

Rule,    the evidence of the other crime was admissible to prove

motive, intent, plan, and also as an explanation of the conspiracy

relationship between the parties.            While the latter aspect is not

specifically set forth in the Modified Just Rule, this Court has

determined that the evidence must be logically relevant to one of

the listed purposes "or Some other fact in issue and not merely
introduced as proof of a character defect."                 State    v.    Sadowski

(1991) t 247 Mont. 63, 72, 805 P.2d 537, 542.
        Standard of similarity.    other crimes must be similar.                The

majority points out that the primary reason given by the District


                                       10




   .-
Court for its ruling was that the fire at Rippingale's duplex was
not similar to the fire at the mansion.                  I conclude the District
Court abused its discretion by applying too strict a similarity

standard.     The similarity between the uncharged conduct and the

charged conduct is clearly material.                     Both acts involved an
agreement between Rippingale and Hardy to commit arson.                     In both

instances Rippingale approached Hardy with the request to set the

fire and Rippingale was shown to be the instigator. Hardy was the
man who actually set the fires.                 Finally,    Rippingale    and   Hardy
coordinated when the fires were to happen.                   In the duplex fire,
Rippingale told Hardy when to set the fire, and in the mansion

fire,   Hardy and Rippingale talked the night before the fire.
        The District Court emphasized that it was significant that

Rippingale was paid the insurance proceeds on the duplex fire and

Anderson was paid the insurance proceeds on the mansion fire. I

suggest    this   has   little   relevance.           The similarity lies in the
allegation that insurance proceeds were paid to the owner as a

result of arson.        I conclude similarities between the two incidents

are clearly sufficient to meet the similarity test as enunciated in

other Montana cases.

        As an example that such a strict rule of similarity has not
been applied in Montana, State v. McKnight                 (1991),   250 Mont. 457,

820 P.2d 1279, held that a sexual assault was sufficiently similar

to sexual intercourse without consent to allow evidence of the
assault under the Modified Just Rule.                  In a similar manner, prior

violent     uncharged      sex   crimes        were    sufficiently      similar   to


                                          11
deliberate homicide to allow such evidence.               See State v. Gambrel

(l-o), 246       Mont.   84, 803 P.2d 1071.
     I   would      therefore    conclude     that      the   prior     conspiracy
established sufficient similarity under the Rule.

     Preiudicial effect outweiahs           DrObatiVe    value.       The   majority

concludes that the District Court was correct in stating that even

if the similarity prong can be considered as being satisfied, the

evidence should not be admitted because its probative value was

substantially outweighed by the danger of unfair prejudice to

Rippingale.      Here the District Court emphasized that the proposed

evidence was uncorroborated testimony of an alleged accomplice and
that the credibility would be hotly contested at trial.                 This Court

has concluded that prejudice alone is not a sufficient reason to
refuse admission of evidence under the Modified Just Rule.                       See

McRniaht, 820 P.2d at1284.         "Unfair prejudice" has been previously

defined by this Court in State v. Paulson (1991), 250 Mont. 32, 43,
817 P.2d 1137, 1144 (quoting 10 James Wm. Moore, Moore's Federal

Practice 5 403.10[1]), as follows:

     [B]y restricting the rule to evidence which will cause
     "unfair prejudice" the draftsmen meant to caution courts
     that mere nreiudicial effect is not a sufficient reason
     to refuse admission. Probative evidence will frequently
     be prejudicial to a party, but that does not mean that it
     will cause the fact finder to ground a decision on an
     emotional basis. Thus, evidence which tends to horrifv.
     evoke svmnathv or increase a desire to DUnish due to a
     prior act of a oartv and whose Drobative value is sliaht
     mav         P D   v excluded.      (Footnotes   omitted.)
     (Emphabseis s?pp?%d.)

The District Court failed to properly apply this standard in making
a finding of unfair areiudice.        The evidence here does not horrify,


                                       12
evoke sympathy or increase a desire to punish, and the probative
value is certainly not slight.        All we find here is that the
evidence would have some prejudicial effect but that in itself is
not a sufficient reason to refuse admission under State v. Paulson.
     I would therefore conclude that the District Court abused its
discretion in concluding that the evidence should be excluded
because its probative value is substantially outweighed by the
danger of prejudice.
     I would reverse the decision of the District Cour




                                 13
                                       September 16, 1993

                                  CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:


MIKE McGRATH, County Attorney
Lewis & Clark County
228 Broadway
Helena, MT 59601

HON. JOSEPH P. MAZUREK, Attorney General
Elizabeth L. Griffmg, Assistant
Justice Bldg.
Helena, MT 59601

Gregory A. Jackson
JACKSON & RICE
833 North Last Chance Gulch
Helena, MT 59601

NICHOLAS C. JACQUES
Attorney at Law
310 Broadway
Helena, MT 59601


                                                     ED SMITH
                                                     CLERK OF THE SUPREME COURT
                                                     STA’l$ OF ,MONTANA
