                                                                                         November 8 2011


                                          DA 10-0291

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2011 MT 278


STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

LARRY B. DANIELS,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Twenty-Second Judicial District,
                       In and For the County of Carbon, Cause No. DC 09-024
                       Honorable Blair Jones, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Colin M. Stephens; Smith & Stephens, P.C.; Missoula, Montana

                For Appellee:

                       Steve Bullock, Montana Attorney General; Jonathan M. Krauss, Assistant
                       Attorney General, Helena, Montana

                       Dan Guzynski, Assistant Attorney General, Special Deputy County
                       Attorney for Carbon County, Helena, Montana

                       Alex Nixon, Carbon County Attorney, Red Lodge, Montana



                                                   Submitted on Briefs: June 22, 2011

                                                               Decided: November 8, 2011


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Defendant Larry B. Daniels (Daniels) appeals from the conviction and judgment

for deliberate homicide entered following jury trial in the Twenty-Second Judicial

District Court, Carbon County. In defense, Daniels asserted justifiable use of force. We

affirm and restate the issues on appeal as follows:

¶2     1.   Did the District Court err in its rulings regarding the admissibility of

character evidence of the victim in violation of the Rules of Evidence and Daniels’

constitutional rights?

¶3     2. Did the District Court err by refusing Daniels’ proposed jury instructions on

justifiable use of force in defense of an occupied structure and burglary as a forcible

felony?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4     In April 2009, the Daniels family rented a ten-acre property in Fromberg,

Montana. Daniels, age 66, Buddy (Daniels’ adult son, age 43), Logan (Daniels’ son, age

14), and Hagen (Buddy’s son, age 13), lived together on the property. Daniels and Logan

had recently moved to Montana from California, and the property was rented by Daniels

so that the Daniels family could live together. Two residential structures were on the

property, including a north house consisting of an apartment and attached shop, and the

main house located to the south. Buddy, Logan, and Hagen lived in the main house,

while Daniels resided in the apartment in the north house.




                                             2
¶5     Daniels and Buddy had plans to develop the property, and on the morning of

May 21, 2009, they went to Billings to purchase lumber to build corrals. Daniels and

Buddy drank beer while driving home, stopping to buy food and supplies for Logan and

Hagen. They stopped at a bar and drank beer and liquor with friends until around 8:00

p.m. According to the bartender, everyone “seemed to be getting along great.”

¶6     Later, Daniels, Buddy, Logan and Hagen gathered at the main house for dinner.

Logan testified that Daniels and Buddy were intoxicated. An argument ensued during

dinner over Daniels incorrectly remembering Logan’s birthday and not being “a good

grandpa” to Hagen. The argument escalated, with Buddy asking Daniels to leave the

main house, and Daniels refusing. Buddy broke two chairs and Daniels threw a beer at

Buddy. Buddy then struck Daniels and wrestled him to the ground, pinning him there

and telling him to leave. Buddy then rolled or drug Daniels down the stairs. Daniels

testified he did not remember being struck, only that he ended up at the bottom of the

stairs. The argument continued as Daniels and Buddy moved into the mud room. Hagen

testified “it kind of toned down a little bit” and that neither person seemed to be hurt.

Daniels headed to his house, with Buddy following. Hagen testified that he and Logan

decided to “separate” Daniels and Buddy, and the boys started to go towards Daniels’

house. Daniels went into his house and was the only witness to the events that occurred

inside the home.

¶7     Daniels testified that he “went straight to the refrigerator and grabbed a beer,” and

went upstairs. He said he was quite upset, took a .22 pistol out of a holster and sat on his

                                             3
bed “thinking about shooting myself.” Daniels testified he heard the front door open and

Buddy’s angry voice.      Buddy came up the stairs and verbally challenged Daniels.

Daniels testified that when Buddy came up the stairs, Daniels said, “No more. Go home.

It’s over. Go home. Get out of here.” Daniels told police “[b]y that time I’m around on

this side of my bed at my nightstand and my pistol lays right there. I picked up my pistol

and I said Bud, just leave and leave me alone. He said fuck you and your pistol. I’ll

shove that mother fucker up your ass and he come toward me, pop, pop.” Daniels

testified Buddy “straight-arm[ed] me in the chest,” and the pistol went in the air and he

pulled the trigger “to protect myself.” Daniels told police that he fired three shots ten feet

from Buddy. He told police his intent was to “[g]et away from him” and “to stop him,”

and that “[a]ny time you pick up a gun and you pop a cap, your intent is to kill.”

¶8     After the shooting, Daniels went downstairs. Logan and Hagen came through the

doorway and Daniels told them to leave. Logan and Hagen testified that Daniels said that

he had just shot and killed Buddy. Daniels called 911, telling the dispatcher: “He’s

wantin’ to beat me up all the time and he owes me a ton of money and arguin’ about this

and one thing another. He ripped my shirt off of me and he shoved me down the stairs

one thing another and I ... I come over to my little house and he followed me up here

gonna kick my ass one thing another and I said leave me alone. I can’t out .. I can’t beat

you. I’m too old. I can’t whip him anymore. I picked up my gun, he said oh fuck you.

What ya gonna do with that gun you know and blah, blah and I said I ... I ain’t gonna do

it anymore. I’m tired of it. Then I pulled the trigger. I’m guilty 100%.” Daniels

                                              4
testified he remembered telling the 911 dispatcher he was “one hundred percent guilty,”

and meant that “I had shot my son. I knew that I had done this. I was not looking for any

kind of defense at the time. I was not looking for justification. I was just -- yes, I did it.”

A trooper who arrived at the scene testified that Daniels’ demeanor struck him as almost

jovial and upbeat, and Daniels “asked if [the trooper] could get him a beer because it

might be the last one that he would ever have.” Six hours after the shooting Daniels’

blood alcohol content was 0.08. Daniels was arrested at the scene.

¶9     Daniels had an abrasion on his left elbow, and no other injuries. Buddy had two

gunshot wounds, one to the back of his head at the base of his skull—which the forensic

pathologist/medical examiner, Dr. Thomas Bennett, believed was sustained first—and a

second gunshot wound to the middle of his back. The third bullet went into the ceiling.

The gunshot to the back of Buddy’s head struck and fractured the base of the skull.

Dr. Bennett testified that the shot to Buddy’s skull probably took place when he was

upright, and it would have rendered Buddy immediately unconscious and caused him to

fall directly to the ground. Dr. Bennett believed Buddy was still alive at that point and

his heart would still have been beating. Dr. Bennett opined the second shot to the middle

of his back occurred when Buddy was on the ground. According to Dr. Bennett, this shot

broke two ribs and perforated Buddy’s lung, causing his chest cavity to fill with blood.

Dr. Bennett believed both shots were fired very close in time. Dr. Bennett believed the

first shot was fired from a distance of “at least four to five feet or more,” and the second




                                              5
shot was fired from a closer distance of approximately a foot and a half away. Injuries

sustained from the two gunshot wounds caused Buddy’s death.

¶10    The State filed an Information charging Daniels with deliberate homicide in

violation of § 45-5-102, MCA (2007).1 The State later amended the Information to

alternatively charge mitigated deliberate homicide in violation of § 45-5-103, MCA.

Daniels pled not guilty to the charges and filed notice of his intent to rely on the

affirmative defense of justifiable use of force. The State filed a motion in limine to

prohibit Daniels from referencing testimony regarding Buddy’s alleged character for

violence until a proper foundation had been laid by Daniels, and Daniels sought an order

excluding “any argument by the prosecution that would tend to shift the burden of proof.”

(Emphasis omitted.) The District Court entered preliminary rulings and deferred final

rulings until trial. In January 2010, a six-day jury trial was conducted, during which

Daniels testified. The jury returned a guilty verdict on the charge of deliberate homicide.

The District Court sentenced Daniels to 60 years in Montana State Prison, with a

condition that he be ineligible for parole for 20 years. Daniels appeals. Additional facts

as necessary will be discussed herein.

                               STANDARD OF REVIEW

¶11    A district court has broad discretion when determining the relevance and

admissibility of evidence. State v. Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201
1
  Because Buddy’s death occurred in May of 2009, the 2007 MCA was in effect, except for the
justifiable use of force amendments enacted within House Bill (HB) 228, which went into effect
on April 27, 2009. Laws of Montana, 2009, ch. 332, § 11, at 2275. All subsequent references to
the MCA will be to the 2007 version, unless otherwise indicated.

                                              6
P.3d 811. Generally, we review evidentiary rulings for an abuse of discretion. State v.

Dist. Ct. of the Eighteenth Jud. Dist., 2010 MT 263, ¶ 31, 358 Mont. 325, 246 P.3d 415.

A district court abuses its discretion if it “acts arbitrarily without the employment of

conscientious judgment or exceeds the bounds of reason, resulting in substantial

injustice.” Derbyshire, ¶ 19. “In exercising its discretion, however, the trial court is

bound by the Rules of Evidence or applicable statutes. Thus, to the extent the court’s

ruling is based on an interpretation of an evidentiary rule or statute, our review is de

novo.” Derbyshire, ¶ 19; see also Dist. Ct. of the Eighteenth Jud. Dist., ¶ 31. Our review

is plenary for questions regarding constitutional law. State v. Jackson, 2009 MT 427,

¶ 50, 354 Mont. 63, 221 P.3d 1213.

                                     DISCUSSION

¶12   1.   Did the District Court err in its rulings regarding the admissibility of

character evidence of the victim in violation of the Rules of Evidence and Daniels’

constitutional rights?

      A.     2009 Legislative Changes

¶13   The central theme of Daniels’ arguments is that the District Court erred by making

rulings in violation of legislation enacted by the 2009 Legislature. HB 228 proposed an

act “preserving and clarifying laws relating to the right of self-defense and the right to

bear arms.” Laws of Montana, 2009, ch. 332, at 2271 (emphasis omitted). Under prior

law, the State bore the burden of proving the elements of the charged offense beyond a

reasonable doubt, but it did not need to prove “the absence of justification.” State v.

                                            7
Henson, 2010 MT 136, ¶ 33, 356 Mont. 458, 235 P.3d 1274 (citing State v. Longstreth,

1999 MT 204, ¶ 22, 295 Mont. 457, 984 P.2d 157; additional citation omitted). In

Longstreth, we explained that “as an affirmative defense, justifiable use of force requires

the defendant to produce sufficient evidence on the issue to raise a reasonable doubt of

his guilt and that the State’s burden is to prove beyond a reasonable doubt the elements of

the offense charged, which does not include the absence of justification.” Longstreth,

¶ 22 (emphasis added).

¶14    The sponsor of HB 228, Representative Kerns, indicated to the House Judiciary

Committee that the bill “shifts the burden to the prosecutor to prove . . . the absence of

justification” in self-defense claims. Mont. H. Comm. on Jud., Hearing on H. Bill 228,

61st Legis., Reg. Sess., (Jan. 22, 2009). Committee discussion on HB 228 expressly

referred to Longstreth. Mont. H. Comm. on Jud., Hearing on H. Bill 228, 61st Legis.,

Reg. Sess., Exhibit 3, at 1-2 (Jan. 22, 2009) (noting HB 228’s provision on the burden of

proof for justifiable use of force “is important and needed to clarify law in Montana

resulting from the 1999 Longstreth opinion by the Montana Supreme Court”). Rep.

Kerns explained that the “meat of the bill” was that “you are innocent until proven guilty

in terms of self-defense. That the State must prove an absence of justification beyond a

reasonable doubt with respect to self-defense claims.      That’s the foundation of our

judicial system in this nation, and we’re just specifying that it applies to self-defense

claims as it does [to] every other aspect of the law.” Mont. Sen. Comm. on Jud., Hearing




                                            8
on H. Bill 228, 61st Legis., Reg. Sess., (Mar. 17, 2009). HB 228 included a provision

which is now codified as § 46-16-131, MCA (2009):

              Justifiable use of force – burden of proof. In a criminal trial,
       when the defendant has offered evidence of justifiable use of force, the state
       has the burden of proving beyond a reasonable doubt that the defendant’s
       actions were not justified.

See also Laws of Montana, 2009, ch. 332, § 9, at 2275. The enactment of HB 228

effectively abrogated Longstreth, Henson and other cases to the extent they held that the

burden of proof for the defense of justifiable use of force (JUOF) was on the defendant.2

¶15    Daniels further argues that the passage of HB 228 “reversed the long-held rule in

Montana that justifiable use of force” is an affirmative defense, apparently because

defendants have historically been required to prove affirmative defenses. See State v.

Gratzer, 209 Mont. 308, 318, 682 P.2d 141, 146 (1984).             However, this argument

overstates the effect of the legislation. Section 45-3-115, MCA, unchanged by HB 228,

continues to provide that JUOF is an affirmative defense, which we have defined as “one

that admits the doing of the act charged, but seeks to justify, excuse or mitigate it.” State

v. Nicholls, 200 Mont. 144, 150, 649 P.2d 1346, 1350 (1982). A defendant is still

required to provide written notice to the prosecutor of his intention to rely upon the

defense of JUOF. Section 46-15-323(2), MCA. And, while the Legislature provided that

the burden of proof can ultimately be shifted to the State, it placed the initial burden of

evidence production upon the defendant.          Under § 46-16-131, MCA (2009), the


2
 See e.g. State v. Matz, 2006 MT 348, 335 Mont. 201, 150 P.3d 367; State v. Daniels, 210 Mont.
1, 682 P.2d 173 (1984); State v. Kutnyak, 211 Mont. 155, 685 P.2d 901 (1984).
                                               9
defendant has the initial burden to “offer[] evidence of justifiable use of force” before the

burden of proof is shifted to the State. If the defendant offers no evidence, then he fails

to satisfy his initial burden and the defense fails. See § 26-1-401, MCA (“The initial

burden of producing evidence as to a particular fact is on the party who would be

defeated if no evidence were given on either side. Thereafter, the burden of producing

evidence is on the party who would suffer a finding against him in the absence of further

evidence.”). Accordingly, though the ultimate burden of proof can be shifted to the State,

JUOF still operates as an affirmative defense.

¶16    We also disagree with Daniels’ implication that by providing pre-trial notice of his

intention to rely on JUOF as a defense, he satisfied his burden under § 46-16-131, MCA

(2009), to “offer[] evidence,” and thereby shifted the burden of proof to the State. Notice

does not place the defense of JUOF at issue during the trial. City of Red Lodge v. Nelson,

1999 MT 246, ¶ 13, 296 Mont. 190, 989 P.2d 300; State v. Logan, 156 Mont. 48, 65, 473

P.2d 833, 842 (1970) (the notice of self-defense served by defendant on the State pre-trial

is immaterial and does not place the matter into issue during trial; defendant is not bound

to rely on this defense at trial, notwithstanding service on the State).3

       B.      The District Court’s evidentiary rulings

¶17    The thrust of Daniels’ overlapping arguments is that the District Court erred in its

rulings regarding the foundation required for the introduction of character evidence about

3
 In the District Court, the parties agreed that sufficient evidence was offered by Daniels to raise
JUOF as a defense, and the jury was instructed accordingly. Therefore, we take no position on
the quantum of evidence required under § 46-16-131, MCA (2009), to shift the burden of proof
to the State, as that issue is not before us.
                                                 10
Buddy. Before trial, the State filed a motion in limine requesting the court to “issue an

order prohibiting the Defendant at trial from referencing or soliciting testimony regarding

the victim’s alleged character for violence, including specific acts of violence, until a

proper foundation is laid by the Defendant . . . .” At hearing, the court noted the

statement in State v. Montgomery, 2005 MT 120, ¶ 20, 327 Mont. 138, 112 P.3d 1014,

that failure to establish the defendant’s knowledge of the victim’s violent past rendered

certain character evidence of the victim “irrelevant and inadmissible.” Defense counsel

argued that “there are various ways for a defendant to establish his knowledge of the

violent nature of the victim. It doesn’t have to be through the defendant’s testimony.”

The court responded it felt it was a “sticky wicket” in that “you’re asking someone else to

really comment on what only the individual himself can readily establish.” The State

added that “a distinction needs to be made at some point of reputation evidence and

specific instances of violent behavior by the victim,” stating that the State’s concern was

“the State’s case being prejudiced by the introduction of specific acts.”

¶18    Relying on Montgomery, the court made an initial ruling on the State’s motion:

       [F]or evidence of the victim’s character and propensity for violence to be
       admissible the evidence first must be related to the issue of the
       reasonableness of force used by the defendant. And at this point, the
       Court’s assuming that based on the defendant’s obvious indications that
       justifiable use of force is a defense in this case.
               Secondly, the defendant must establish his knowledge of the violent
       nature of the alleged victim in order for that evidence to be admissible.
               I will reserve how that must be established, but just for general
       guidance, it would seem that without the defendant’s testimony in that
       regard, relative to what his understanding was, it may be difficult to show
       that. But I’m keeping an open mind.

                                             11
              And then finally, the defendant must show that this knowledge
       motivated his own level of force. . . .
              So if the defendant fails to make that showing, the evidence is
       irrelevant and inadmissible.

During trial, prior to the State calling Hagen as a witness, Daniels indicated Hagen had

knowledge of a previous act of violence by Buddy that Daniels wanted to inquire into on

cross-examination. The court said it would disallow cross “until there’s some foundation

laid for that pursuant to Montgomery and other cases. I thought about this previously,

but I think the defendant is going to have to testify.” Citing State v. Cartwright, 200

Mont. 91, 650 P.2d 758 (1982) and Logan, the court concluded “I’m not going to allow it

until that foundation is laid.”     However, during defense cross-examination, Hagen

testified that Buddy had “[a] little bit” of a reputation for fighting, without objection from

the State.

¶19    During Logan’s testimony, the court sustained the State’s objection to a defense

question asking about Buddy’s reputation “for being a fighter.”            In the chambers

conference which followed, defense counsel indicated “I did not interpret your previous

ruling to go to reputation,” and the State argued “I believe that reputation for violence

only comes in . . . once the defendant testifies and he says that he relied upon the

defendant’s reputation for violence and he acted upon that.” The court responded “it

seems to me to be the appropriate way to go.” Thereafter, questioning resumed, but no

reference was made to Buddy’s reputation for violence.4


4
 At the close of the defense’s case-in-chief, defense counsel indicated for the record “we had
other witnesses that fell in that category and that would have been Logan Daniels.” Thus, “we
                                                 12
¶20      Thereafter, Daniels took the stand, and defense counsel asked: “Do you know of

any other instances in the past of Bud being violent to you?” The State objected and, at

the ensuing chambers conference, the court stated that the State’s objection would be

sustained because the level of testimony so far was “insufficient foundation that what was

going on in his mind was that he was recalling other specific instances of violence

committed by this victim.” Daniels’ counsel then made an offer of proof of six instances

of Buddy’s past behavior he wished to admit. The court ruled that four of the six

instances were more prejudicial than probative and would be excluded under M. R. Evid.

403.5 The court also ruled that a 2007 Columbia Falls bar fight and a 2004 incident at a

barbecue in Wyoming would be admissible upon the proper foundation.

¶21      However, when Daniels resumed testifying, he did not offer this foundation.

Instead, counsel asked: “[I]n your decision to shoot Bud, did you take into consideration

his propensity for violence?” Daniels answered “[y]es, I did.” Defense counsel then

asked if Buddy had a reputation for “being violent,” “fighting,” “a short fuse,” and

“holding grudges,” to which Daniels answered “[y]es, he does.” Defense counsel then

asked:

                Now when you decided to shoot, you had just come from the main
         house; is that correct?

               [Daniels]: Correct.




made the decision not to call other witnesses who would have gotten on the stand and who would
have testified as to reputation.”
5
  This ruling is not disputed on appeal.
                                               13
               [Defense counsel]: And so that was really what was on your mind,
       is that fair to say?

              [Daniels]: The events of that evening, yes.

              [Defense counsel]: So you had just gotten beat up; is that correct?

              [Daniels]: Yes.

                                            .      .   .

              [Defense counsel]: Is it fair to say your main motivating force that
       night was what happened that night?

              [Daniels]: Correct.

Immediately thereafter, the parties met with the court in chambers and the State argued

that, after this testimony, the specific instances of Buddy’s character for violence had no

probative value and would only be prejudicial. Daniels agreed and indicated “we chose

to go away from specific acts and go through that. We went through general reputation.

That’s what we did.” The court confirmed that reputation evidence had been received

“obviously without objection, as to propensity.”

       C.     Analysis

              i.)    Rules of Evidence

¶22    Daniels challenges the District Court’s ruling that he needed to testify in order to

lay the foundation necessary for admission of Buddy’s character evidence. He also

contends the District Court abused its discretion by disallowing cross-examination of the




                                            14
State’s witnesses on Buddy’s reputation and acts of violence, asserting the rulings were

premised on case law which has been overruled by HB 228.6

¶23    While HB 228 provides for shifting of the burden of proof of JUOF, the Montana

Rules of Evidence still apply and “govern all proceedings in all courts in the state of

Montana . . . .” M. R. Evid. 101(a). See also § 46-16-201, MCA (“The Montana Rules

of Evidence and the statutory rules of evidence in civil actions are applicable also to

criminal actions, except as otherwise provided.”). Generally, “[e]vidence of a person’s

character or a trait of character is not admissible for the purpose of proving action in

conformity therewith on a particular occasion,” M. R. Evid. 404(a), with an exception for

“[e]vidence of a pertinent trait of character of the victim of the crime offered by an

accused.” M. R. Evid. 404(a)(2); State v. Sattler, 1998 MT 57, ¶ 43, 288 Mont. 79, 956

P.2d 54.7 When character evidence is admissible, Rule 405 provides the methods of

proving character. Nelson, ¶ 11. Rule 405 provides:


6
  The State asserts that the “only evidentiary issue before this Court is whether the district court
erred in excluding prior specific instances of Buddy’s violence . . . .” The State notes that
testimony about Buddy’s reputation for fighting was given without objection during Hagen and
Daniels’ testimony. However, reputation evidence was excluded during Logan’s testimony, on
the ground of insufficient foundation. Daniels focuses on the District Court’s “one constant
ruling,” which he describes as “that there would be no evidence of Buddy’s past acts or
reputation absent proper foundation being laid via Larry’s testimony.” (Emphasis added.) Thus,
we deem Daniels’ arguments to encompass the exclusion of reputation evidence as well as prior
specific acts of violence.
7
  Instead of utilizing Rule 404(a)(2), Daniels appears to argue on appeal that Buddy’s character
was admissible because it was “an essential element” of the JUOF defense, citing M. R. Evid.
404(c). Rule 404(c) states “[e]vidence of a person’s character or a trait of character is admissible
in cases in which character or a trait of character of a person is an essential element of a charge,
claim, or defense.” See also the first prong of M. R. Evid. 405(b). However, a “victim’s
character for violence is not an ‘essential element’ of the defense of justifiable force.” Nelson,
                                                 15
               (a) Reputation or opinion. In all cases in which evidence of
       character or a trait of character of a person is admissible, proof may be
       made by testimony as to reputation or by testimony in the form of an
       opinion. On cross-examination, inquiry is allowable into relevant specific
       instances of conduct.
               (b) Specific instances of conduct. In cases in which character or a
       trait of character of a person is an essential element of a charge, claim, or
       defense, or where the character of the victim relates to the reasonableness
       of force used by the accused in self defense, proof may also be made of
       specific instances of that person’s conduct.

¶24    Daniels first argues the court erred in disallowing defense cross-examination

concerning specific instances of Buddy’s violent conduct under Rule 405(a). As noted,

the State called Hagen as a witness, and during the defense cross-examination, Hagen

testified to Buddy’s reputation for being a fighter without objection from the State.

Daniels construes Rule 405(a) to permit further defense cross-examination about specific

instances of Buddy’s conduct because reputation evidence was elicited during earlier

defense questioning of Hagen. In other words, Daniels argues that the last sentence of M.

R. Evid. 405(a) permitted the defense to conduct cross-examination regarding specific

instances of Buddy’s conduct once the defense had elicited evidence of Buddy’s

reputation. We disagree with Daniels’ interpretation of the Rule. Rule 405(a) permits

cross-examination about specific instances of conduct by a party who is adverse to the

witness’ reputation or opinion testimony, not by the same party. See § 26-1-101(1),

¶ 19; Sattler, ¶ 45. Here, Daniels conceded in both his response to the State’s motion and at the
pre-trial hearing that a victim’s character is not an essential element of the JUOF defense.
Therefore, we do not analyze Daniels’ evidentiary arguments in the context of M. R Evid.
404(c), but rather under M. R. Evid. 404(a)(2). This approach is reinforced by Daniels’
argument to the District Court, in support of introduction of Buddy’s character evidence, that
“[a]n exception is allowed when the character trait of the victim is offered by the accused,”
thereby implicitly relying on M. R. Evid. 404(a)(2).

                                               16
MCA (emphases added) (“‘Direct examination’ is the first examination of a witness on a

particular matter. ‘Cross-examination’ is the examination of a witness by a party other

than the direct examiner.”); see also State v. Jones, 48 Mont. 505, 516, 139 P. 441, 445

(1914) (first emphasis in original) (“As the favorable [reputation] testimony tends to

sustain the presumption of innocence which the law indulges in favor of the defendant,

by introducing it the defendant tenders an issue of fact, viz., whether his reputation is

such as the witnesses say it is, and the prosecution has the right to cross-examine the

witnesses to ascertain the sufficiency of the grounds upon which they base their

statements.”). Otherwise, a party could offer reputation evidence and thereby open the

door to further examination about specific instances, an interpretation which would

swallow the rule. We conclude the District Court did not abuse its discretion.

¶25    Daniels next argues that “[t]he court abused its discretion by disallowing [him] the

ability, on cross-examination, to present evidence of specific acts of Buddy’s violent past

and reputation for violence” until proper foundation had been laid by Daniels’ testimony.

(Emphasis omitted.) He argues the District Court erroneously relied on pre-HB 228 cases

such as Logan, Cartwright, and Montgomery.

¶26    In Logan, the defendant was charged with first degree murder and had given

notice of his intention to claim self-defense. Logan, 156 Mont. at 52, 473 P.2d at 835.

We held that evidence of the victim’s reputation was admissible only after the issues of

self-defense and the identity of the aggressor had been raised. Logan, 156 Mont. at 64,

473 P.2d at 842. Concluding the defendant had not yet joined these issues when making

                                            17
his offers of proof, “no foundation then existed for the admission of this testimony” and

the district court properly excluded the evidence. Logan, 156 Mont. at 65, 473 P.2d at

842. In Cartwright, the defendant challenged the district court’s refusal of evidence of

threats made by the victims and their family. Cartwright, 200 Mont. at 103, 650 P.2d at

764. The defendant did not admit to the killing, stating only that he did “not remember

firing any shots.” Cartwright, 200 Mont. at 104, 650 P.2d at 765. Affirming, we held

that “‘the accused must first lay a foundation that he acted in self defense before he can

introduce evidence of the violent character of the victim”’ (citation omitted), noting

Logan’s statement that “‘[u]ntil such time as defendant took the stand and admitted the

killing, the issue of self defense was not joined at the trial.’” Cartwright, 200 Mont. at

104, 650 P.2d at 764-65 (quoting Logan, 156 Mont. at 65, 473 P.2d at 842).                  In

Montgomery, the defendant shot and killed a man in his home who turned out to be an

individual the defendant had fought with earlier. Montgomery, ¶¶ 3-4. We held that the

defendant “must establish that he knew he was shooting [the victim], that he knew of [the

victim’s] past violent conduct, and that his knowledge of this conduct led him to use the

level of force he did.” Montgomery, ¶ 19. We concluded that evidence of the victim’s

past was “irrelevant and inadmissible,” since the defendant “did not establish that his

knowledge of [the victim’s] past led him to use the level of force he employed.”

Montgomery, ¶ 20.8



8
 See also Deschon v. State, 2008 MT 380, ¶ 24, 347 Mont. 30, 197 P.3d 476 (“Evidence of the
violent nature of the alleged victim of an assault is limited to what the defendant knew at the
                                               18
¶27    In contrast to Daniels’ assertion that pre-HB 228 cases on foundation and

relevance have been overruled, the discussions in Montgomery, reiterated in Deschon and

Henson, as to the foundation required for admission of character evidence of the victim,

remain good law. “Evidence which is not relevant is not admissible.” M. R. Evid. 402.

Consequently, “[s]ince [the defendant] did not establish that his knowledge of [the

victim’s] past led him to use the level of force he employed, [the victim’s] past was

irrelevant and inadmissible.” Montgomery, ¶ 20; see also Deschon, ¶ 24; Henson, ¶ 27.

While the burden may shift to the State to prove the absence of justification under § 46-

16-131, MCA (2009), this burden does not eliminate the need to satisfy foundational

requirements for the admissibility of evidence pursuant to the Rules of Evidence.9

¶28    The District Court did not err in requiring Daniels to lay a proper foundation, here,

by testifying. Given the circumstances here, the court properly determined that Daniels’

testimony was necessary to provide the requisite foundation for the evidence of Buddy’s

past which he initially intended to offer. Daniels fails to specifically demonstrate how

the foundation for his proffered evidence could have otherwise been established, and

therefore, we need not address whether the foundation could have been alternatively laid.

And, in the end, Daniels did not offer evidence of the two incidents in Buddy’s past


time he used force against the victim, and it is also required that the defendant show this
knowledge led him to use the level of force he did.”).
9
  There is no dispute on appeal that Daniels raised and joined the defense of JUOF during trial.
Therefore, the State correctly notes that the discussions in Cartwright and Logan, premised upon
whether self-defense had been joined, do not apply. To the extent that the District Court’s
reliance on these cases could be considered error, it was harmless, as the court correctly analyzed
relevance pursuant to Montgomery.
                                                 19
which the District Court had approved following his offer of proof, but rather testified

that it was the events of the evening in question which motivated his behavior. The

District Court did not abuse its discretion.

                ii.)   Constitutional arguments

¶29    Daniels argues, “[b]y requiring Larry’s testimony to provide foundation for

Buddy’s character and reputation, the court shifted the burden of proof to Larry,” thereby

violating his constitutional right to due process. Daniels argues sufficient objections exist

for the review of this issue on direct appeal, but alternatively requests we apply plain

error review.

¶30    Daniels filed a pre-trial motion in limine requesting the court to exclude “any

argument by the prosecution that would tend to shift the burden of proof pursuant to the

U.S. and Montana Constitutions and § 46-16-204, M.C.A.” (Emphasis omitted.) Prior to

opening statements at trial, the District Court granted Daniels’ motion, stating: “Then

there’s some question about shifting the burden of proof. I’m going to believe that the

State isn’t going to attempt to do so. And if you think that the State is treading on thin

ice in that regard, you need to let me know. But that request is granted.” Daniels offered

no objection during the trial.

¶31    Generally, “[a] defendant must make a timely objection to properly preserve an

issue for appeal.” State v. Paoni, 2006 MT 26, ¶ 35, 331 Mont. 86, 128 P.3d 1040; see

also §§ 46-20-104(2) and -701, MCA. While “we have repeatedly approved the use of a

motion in limine to preserve an objection for appeal ‘provided the objecting party makes

                                               20
the basis for his objection clear to the district court,’” State v. Vukasin, 2003 MT 230,

¶ 29, 317 Mont. 204, 75 P.3d 1284 (citation omitted), the objector is still obligated to

make the basis and grounds for the objection clear to the court. State v. Weeks, 270

Mont. 63, 85, 891 P.2d 477, 490 (1995). Further, the “specific objections must be made

to portions of testimony deemed inappropriate; broad general objections do not suffice.”

Weeks, 270 Mont. at 85, 891 P.2d at 490. Consequently, we conclude that Daniels’

motion in limine did not preserve an objection for appeal since his motion was

generalized, and did not provide notice to the court of the specific action to which he

objected. See Vukasin, ¶ 38; State v. Ferguson, 2005 MT 343, ¶ 66, 330 Mont. 103, 126

P.3d 463.

¶32    We invoke the plain error doctrine sparingly, on a case-by-case basis. State v.

Lindberg, 2008 MT 389, ¶ 34, 347 Mont. 76, 196 P.3d 1252. For plain error review of an

unpreserved issue, “the appealing party must (1) show that the claimed error implicates a

fundamental right and (2) ‘firmly convince’ this Court that failure to review the claimed

error would result in a manifest miscarriage of justice, leave unsettled the question of the

fundamental fairness of the trial or proceedings, or compromise the integrity of the

judicial process.” State v. Norman, 2010 MT 253, ¶ 17, 358 Mont. 252, 244 P.3d 737

(citations omitted).

¶33    A fundamental principle of our criminal justice system is that the State prove

every element of a charged offense beyond a reasonable doubt, State v. Price, 2002 MT

284, ¶ 33, 312 Mont. 458, 59 P.3d 1122 (citing In re Winship, 397 U.S. 358, 363-64, 90

                                            21
S. Ct. 1068, 1072-73 (1970), and we have previously stated “[i]f the burden of proof was

shifted as [the defendant] claims, there is no doubt his fundamental constitutional rights

have been violated.” Price, ¶ 33. Evidentiary foundation is a related, but separate issue

from determining which party bears the burden of proof. As we have discussed herein,

by requiring Daniels to comply with evidentiary requirements, the District Court did not

impermissibly shift the burden of proof on an element of the offense. Further, the

District Court was clear at trial that the State bore the burden of proof to prove the

elements of deliberate homicide as well as the absence of JUOF, and so instructed the

jury. Thus, we are not “‘firmly convince[d]’” that failure to review Daniels’ claim would

result in “a manifest miscarriage of justice, leave unsettled the question of the

fundamental fairness of the trial . . . or compromise the integrity of the judicial process,”

and we decline to invoke the plain error doctrine. Norman, ¶ 17 (citations omitted).

¶34    Daniels raises a second constitutional argument. He asserts “[b]y compelling

Larry to testify in order to lay the foundation for his justification evidence, the court

violated his Fifth Amendment right to remain silent” under the United States

Constitution, and Article II, Section 25, of the Montana Constitution. The State answers

that Daniels never objected that he was being compelled to testify, and notes that he does

not seek plain error review of this issue. In reply, Daniels argues his right to remain

silent argument is properly preserved for appeal because of “numerous references to the

Fifth Amendment throughout the record.”




                                             22
¶35    Daniels is correct that there are references to the Fifth Amendment in the record;

however, they do not encompass the argument he is asserting on appeal. When the State

filed its motion in limine, it requested that Daniels testify during a pre-trial hearing to lay

a proper foundation for his evidence. In response, Daniels’ counsel vigorously opposed

that suggestion, arguing “the most important reason that we object to this, Your Honor, is

that what they’re asking for is some look into Mr. Daniels’ mind. . . . Well, he has a Fifth

Amendment right to keep that to himself. Whether he testifies or not at trial, is also up to

him. . . . If he wants to give it up at trial, he can do that.” (Emphases added.) The

District Court ruled:

              I think the Fifth Amendment, and then the Montana constitution
       protections, as well, preclude the Court from requiring the defendant to take
       the stand at this time and make such a showing. And if he fails to make
       such a showing at any time, that evidence is irrelevant and inadmissible.

(Emphases added.) Thus, Daniels raised his Fifth Amendment right to remain silent

during the pre-trial hearing, and prevailed there on his argument. However, he also

indicated the likelihood he would testify at trial, which he did. During trial, Daniels’

counsel stated repeatedly that Daniels would testify and offered no objection to his doing

so based upon the Fifth Amendment. Daniels has not asserted, either in the District Court

or on appeal, that he would have declined to testify had the court not made its ruling. See

State v. Kutnyak, 211 Mont. 155, 172, 685 P.2d 901, 910 (1984) (“defense counsel

neither objected to the ruling[s] of the trial judge nor asserted that his client could not be

compelled to testify to establish self-defense. In addition, he never stated during trial or


                                              23
on appeal that he would not have had his client testify if the trial judge had not made that

ruling.”).

¶36    “‘It has long been the rule of this Court that on appeal we will not put a District

Court in error for a ruling or procedure in which the appellant acquiesced, participated, or

to which appellant made no objection. Acquiescence in error takes away the right of

objecting to it. This Court will not hold a district court in error when it has not been

given an opportunity to correct itself.’” State v. English, 2006 MT 177, ¶ 71, 333 Mont.

23, 140 P.3d 454 (citation omitted). We hold that Daniels’ constitutional argument has

not been properly preserved for appeal.

¶37    2. Did the District Court err by refusing Daniels’ proposed jury instructions on

justifiable use of force in defense of an occupied structure and burglary as a forcible

felony?

¶38    “[D]istrict courts are accorded broad discretion in formulating jury instructions.”

State v. Archambault, 2007 MT 26, ¶ 25, 336 Mont. 6, 152 P.3d 698. We review

decisions regarding jury instructions for an abuse of discretion. State v. Cybulski, 2009

MT 70, ¶ 34, 349 Mont. 429, 204 P.3d 7. When considering if the district court has erred

in its jury instructions, “we determine whether the instructions, taken as a whole, fully

and fairly instruct the jury regarding the applicable law.” Archambault, ¶ 14; see also

State v. DaSilva, 2011 MT 183, ¶ 15, 361 Mont. 288, 258 P.3d 419. A mistake in

rendering the instructions “must prejudicially affect the defendant’s substantial rights” to

constitute reversible error. Cybulski, ¶ 34.

                                               24
¶39    Daniels argues the court erred in refusing his proffered jury instruction concerning

the defense of an occupied structure under § 45-3-103, MCA (2009). Daniels argues that

this refused jury instruction had “ample evidentiary support” in the record.

¶40    Section 45-3-103, MCA (2009), pertaining to the use of force in defense of an

occupied structure, was amended by HB 228. It states:

               (1) A person is justified in the use of force or threat to use force
       against another when and to the extent that the person reasonably believes
       that the use of force is necessary to prevent or terminate the other person’s
       unlawful entry into or attack upon an occupied structure.
               (2) A person justified in the use of force pursuant to subsection (1) is
       justified in the use of force likely to cause death or serious bodily harm
       only if:
               (a) the entry is made or attempted and the person reasonably believes
       that the force is necessary to prevent an assault upon the person or another
       then in the occupied structure; or
               (b) the person reasonably believes that the force is necessary to
       prevent the commission of a forcible felony in the occupied structure.

Section 45-3-103, MCA (2009). HB 228 deleted the language previously contained in

the provision that the entry had to be made or attempted “in violent, riotous, or

tumultuous manner” to justify use of force. Laws of Montana, 2009, ch. 332, § 4, at

2273.10

¶41    We have previously explained that “an unlawful entry is a prerequisite to asserting

the defense of justifiable use of force in defense of an occupied structure.” State v.

Hagen, 273 Mont. 432, 440, 903 P.2d 1381, 1386 (1995); see also State v. Sorenson, 190

10
  The prior version stated, in part: A person “is justified in the use of force likely to cause death
or serious bodily harm only if: (1) the entry is made or attempted in violent, riotous, or
tumultuous manner and he reasonably believes that such force is necessary to prevent an assault
upon or offer of personal violence to him or another then in the occupied structure . . . .” Section
45-3-103(1), MCA (2007) (emphasis added).
                                                25
Mont. 155, 170, 619 P.2d 1185, 1194 (1980) (emphasis in original) (“By its terms, this

section [§ 45-3-103, MCA] only applies to efforts of a defendant to prevent or terminate

an unlawful entry into occupied premises. It has no application to a lawful entry into

premises.”); State v. Beach, 247 Mont. 147, 150, 805 P.2d 564, 566 (1991). Daniels

attempts to distinguish Hagen, Sorenson, and Beach from his case because the statute

was amended by HB 228. Notably, however, the statute as amended by HB 228 still

contains the same key phrase “unlawful entry into or attack upon an occupied structure”

that the versions in our prior cases relied upon.

¶42    “A district court must only instruct the jury on those theories and issues which are

supported by evidence presented at trial.” Hagen, 273 Mont. at 438, 903 P.2d at 1385.

The evidence at trial indicated the following: Daniels signed the Residential Lease-

Rental Agreement, but Buddy was listed on the lease under the section entitled

“Additional Occupants,” denoting that he was to “occupy the premises” along with

Hagen and Logan. The realtor who had facilitated the lease testified that each person was

to have free use of the property, and that the lease agreement was intended to cover both

homes. Hagen testified the property was considered to be a “whole family estate” and a

“family home,” and he felt free to move about the whole property, often going between

the two houses. Logan testified that people “[p]retty much” went where they wanted on

the property, and that Buddy also went to Daniels’ house. Logan also testified that he

went to Daniels’ house every day and slept there “[a] few times.” Logan testified that

Daniels never knocked when entering the main house, and that he, Hagen and Buddy

                                             26
never knocked when entering Daniels’ house. While Daniels testified that he always

locked his house when he left, he also testified that Logan had a key and the family knew

that they could “jimmy the door [open] from the shop.” While Daniels argues on appeal

that “family members very rarely entered into each others’ bedrooms,” both Hagen and

Logan testified that they had been in Daniels’ bedroom. Finally, when asked if he ever

told other family members not to enter his house, Daniels testified that he had never said

that to Logan, and had only told Hagen not to come inside if Hagen was going to use bad

language.

¶43    We conclude that the evidence clearly established that Buddy was not a trespasser

into Daniels’ house, that he was a co-occupant, and that his entry into Daniels’ house was

lawful. Because “an unlawful entry is a prerequisite to asserting the defense of justifiable

use of force in defense of an occupied structure,” Hagen, 273 Mont. at 440, 903 P.2d at

1386, the District Court correctly denied Daniels’ proffered jury instruction.

¶44    Daniels also argues the District Court erred by refusing to include the definition of

burglary as a forcible felony for consideration with his defense of JUOF in defense of a

person. When instructing the jury on JUOF to defend a person, the District Court

instructed the jury that a “forcible felony” means “any felony which involves the use or

threat of physical force or violence against any individual.” See § 45-3-101(2), MCA.

The District Court included aggravated assault as a forcible felony within the

instructions, giving the definition for aggravated assault under § 45-5-202(1), MCA.

Daniels asked that burglary be added as a forcible felony for the jury to consider under

                                            27
§ 45-3-102, MCA.11 The District Court declined to do so, reasoning that there were

insufficient facts to demonstrate that Buddy’s entry into Daniels’ house was unlawful.

¶45    An individual commits burglary if “he knowingly enters or remains unlawfully in

an occupied structure with the purpose to commit an offense therein.” Section 45-6-

204(1), MCA (emphasis added). Additionally, “[a] person enters or remains unlawfully

in or upon any vehicle, occupied structure, or premises when he is not licensed, invited,

or otherwise privileged to do so. . . . The privilege may be revoked at any time by

personal communication of notice by the landowner or other authorized person to the

entering person.” Section 45-6-201(1), MCA.

¶46    Daniels argues enough evidence existed to support the theory that Buddy

unlawfully entered Daniels’ house to support including burglary in the forcible felony

instruction. However, as indicated by the above discussion, the evidence established that

Buddy’s entrance into Daniels’ house was lawful for purposes of the jury instruction on

JUOF in defense of an occupied structure, and we also hold that Buddy’s entry was not

unlawful for purposes of the burglary statute. “To constitute a burglary the nature of the

entry must itself be a trespass.” State v. Feldt, 239 Mont. 398, 400, 781 P.2d 255, 256

(1989). Daniels concedes that “Buddy was on the lease,” and the evidence indicated that

the family members had leave to be in both houses. While Buddy may have committed

11
  Section 45-3-102, MCA, provides “[a] person is justified in the use of force or threat to use
force against another when and to the extent that he reasonably believes that such conduct is
necessary to defend himself or another against such other’s imminent use of unlawful force.
However, he is justified in the use of force likely to cause death or serious bodily harm only if he
reasonably believes that such force is necessary to prevent imminent death or serious bodily
harm to himself or another or to prevent the commission of a forcible felony.” (Emphasis added.)
                                                  28
unlawful acts that night, he did not commit burglary. His entry was not contingent upon

Daniels’ permission, and by his words, Daniels could not transform Buddy’s lawful

presence into a trespass.      The District Court correctly denied Daniels’ proffered

instruction on burglary as a forcible felony.

¶47    Affirmed.

                                                     /S/ JIM RICE


We concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS




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