                                                                                         August 19 2014
                                          DA 13-0272

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2014 MT 222



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

THOMAS LEE LAMARR,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead, Cause No. DC 12-439A
                       Honorable Ted O. Lympus, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Wade Zolynski, Chief Appellate Defender; David G. Dennis, Assistant
                       Appellate Defender; Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; Tammy A. Hinderman,
                       Assistant Attorney General; Helena, Montana

                       Ed Corrigan, Flathead County Attorney; Caitlin Overland, Deputy County
                       Attorney; Kalispell, Montana



                                                   Submitted on Briefs: June 4, 2014
                                                              Decided: August 19, 2014


Filed:

                       __________________________________________
                                         Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1     Thomas Lamarr appeals the Eleventh Judicial District Court’s decision affirming

his misdemeanor assault conviction by a jury in Flathead County Justice Court.

¶2     The sole issue on appeal is whether the Justice Court’s admission of testimony

regarding threats and an assault allegedly committed by Lamarr prior to the charged

assault entitles Lamarr to a new trial.

¶3     We affirm.

                   PROCEDURAL AND FACTUAL BACKGROUND

¶4     On June 21, 2012, the Flathead County Attorney’s Office filed a complaint

charging Lamarr with one count of misdemeanor assault. The Justice Court held a trial

on November 8, 2012, and the jury found Lamarr guilty of the charged offense.

¶5     The conviction arose out of an altercation occurring between Lamarr and the

alleged victim, Wesley Hill, at the Garden Bar in Bigfork, Montana, on May 26, 2012.

On that night, Hill was drinking at the Garden Bar with friends, including Axel Huckins

and Heidi Jelly.    Huckins and Jelly recently had rekindled their prior relationship,

following the end of Jelly’s relationship with Lamarr. At the time, Jelly was pregnant

with Lamarr’s child. Lamarr allegedly had been threatening Huckins via telephone calls

and text messages because of Huckins’s relationship with Jelly.

¶6     At around 9:00 p.m., Huckins went outside of the bar to meet a friend. Lamarr

approached Huckins in the parking lot and they argued back and forth. Huckins, who is

partially paralyzed and confined to a wheelchair, later testified that Lamarr got down on

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one knee, said “let me get down on your level,” and hit Huckins across the face. Huckins

testified that others came to break up the fight and several police officers arrived.

Huckins declined to pursue charges against Lamarr because he did not want to deal with

Lamarr any further.

¶7    Huckins then went back into the bar, sat down with his group of friends, and

began telling Hill what occurred in the parking lot. Within minutes, Lamarr approached

and, concerned that Jelly was drinking alcohol, asked her what she was drinking. In

response, she threw her glass of water in his face. When Huckins confirmed that Lamarr

was the assailant from the parking lot, Hill stood up, placed his hands on Lamarr’s arms,

and told him that they did not “need this tonight” and asked him to “please leave.”

Lamarr responded, “please don’t do this,” and “I’m warning you,” and then head-butted

Hill twice in quick succession. Huckins and other bar patrons broke up the fight. Hill

suffered a broken nose and a split lip requiring six stitches. Within the next few days,

Hill reported the incident to the Flathead County Sheriff’s Office and Lamarr was

charged with assault.

¶8    Prior to trial, the State filed a motion in limine requesting that the court allow

Huckins to testify regarding Lamarr’s threats and the altercation that occurred between

Huckins and Lamarr prior to the charged assault. The court heard arguments on the

State’s motion the morning of trial and ruled, over Lamarr’s objection, that the evidence

was admissible.    During Huckins’s testimony, Lamarr renewed his objection to the

information, stating that the probative value of Huckins’s testimony regarding the prior

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threats and altercation was outweighed by its prejudicial effect. The court again ruled

that the evidence was not too attenuated because the assault of Huckins was the reason

Hill got involved with Lamarr. The court gave a curative instruction, reminding the jury

that Lamarr could not be found guilty for anything other than the charged offense.

Following the guilty verdict, Lamarr appealed to the District Court, which affirmed the

Justice Court’s evidentiary ruling.

                                STANDARD OF REVIEW

¶9     “We review cases that originate in justice court and are appealed to district court

‘as if the appeal originally had been filed in this Court.’” State v. Gai, 2012 MT 235,

¶ 11, 366 Mont. 408, 288 P.3d 164 (quoting State v. Ellison, 2012 MT 50, ¶ 8, 364 Mont.

276, 272 P.3d 646). Accordingly, we “undertake an independent examination of the

record apart from the district court’s decision . . . .” Gai, ¶ 11.

¶10    A trial court has broad discretion when determining the relevance and

admissibility of evidence and we review its rulings for an abuse of discretion. State v.

Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811. To the extent that the

district court’s ruling is based on an interpretation of an evidentiary rule or statute, our

review is de novo. Derbyshire, ¶ 19.

                                        DISCUSSION

¶11 Whether the Flathead County Justice Court erred by allowing testimony regarding
Lamarr’s alleged threats and conduct prior to the charged assault.

¶12    M. R. Evid. 404(b) prohibits evidence of “other crimes, wrongs, or acts” used to

“prove the character of a person in order to show action in conformity therewith.” Prior
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acts of the accused may be admissible, however, for other purposes. One such purpose is

provided in Montana’s so-called “transaction rule.”         Section 26-1-103, MCA. That

section provides: “Where the declaration, act, or omission forms part of a transaction

which is itself the fact in dispute or evidence of that fact, such declaration, act, or

omission is evidence as part of the transaction.”

¶13    We have held that § 26-1-103, MCA, allows evidence of acts that are “inextricably

linked” with and “explanatory of” the charged allegations. State v. Guill, 2010 MT 69,

¶ 25, 355 Mont. 490, 228 P.3d 1152.            The rationale for admitting evidence of the

transaction is two-fold. First, “it is theoretically difficult to subdivide a course of conduct

into discrete criminal acts and ‘other’ conduct,” and second, “it is difficult for a witness

to testify coherently to an event if the witness is only permitted to reference the minutely

defined elements of the crime.” Guill, ¶ 27 (citing Charles Alan Wright & Kenneth W.

Graham, Jr., Federal Practice and Procedure: Evidence vol. 22, § 5239, 446 (West

1988)).

¶14       We have been careful to limit the transaction rule’s application, noting that it

should not be used to avoid Rule 404(b)’s prohibition against character evidence. State v.

Stout, 2010 MT 137, ¶¶ 38-39, 356 Mont. 468, 237 P.3d 37. Further, we have held that

evidence offered under the transaction rule is subject to fact-specific balancing under

M. R. Evid. 403, which allows the court to exclude relevant material when its prejudicial

effect substantially outweighs its probative value. State v. Hardman, 2012 MT 70, ¶ 16,

364 Mont. 361, 276 P.3d 839.

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¶15    Lamarr first asserts that the Justice Court did not use the correct “inextricably

linked” standard to determine whether the testimony could be presented under the

transaction rule and that we should therefore review its application of the rule de novo.

During the pre-trial hearing, the court ruled that Huckins’s testimony would be allowed

because “it was part of the same transaction” and “Huckins was involved all the way.”

Although the court did not use the words “inextricably linked,” it is clear from the court’s

comments that it utilized the correct standard.     The Justice Court analyzed whether

evidence of the altercation between Huckins and Lamarr was necessary to explain the

altercation between Lamarr and Hill or whether it was “too attenuated.” We conclude

that the Justice Court correctly interpreted the legal standard imposed by the transaction

rule and decline to review its application de novo. Admission of evidence is reviewed for

abuse of discretion. Derbyshire, ¶ 19.

¶16    Lamarr asserts that the threats and assault against Huckins were not inextricably

linked to the charged offense.     He argues that there was a “temporal break in the

exchanges between Huckins and Lamarr, and Hill and Lamarr,” and that the alleged text-

message threats were “not made on the day of the alleged offense or even the day prior.”

¶17    We have not limited the use of the transaction rule to evidence of acts occurring

immediately prior to the crime. Stout, ¶ 41. “[W]hile the timing of the events is relevant

to admissibility under the transaction rule, it is not determinative.” State v. Mackrill,

2008 MT 297, ¶ 43, 345 Mont. 469, 191 P.3d 451. Rather, admissibility is “predicated

on the jury’s right to hear what happened prior to the alleged offense, so that it may

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evaluate the evidence in the context in which the alleged criminal act occurred.” State v.

Berosik, 2009 MT 260, ¶ 45, 352 Mont. 16, 214 P.3d 776. Use of the transaction rule “is

most legitimate[] . . . to admit uncharged misconduct when such conduct arises from a

continuing series of events.” Guill, ¶ 45. In Mackrill, we upheld the District Court’s

decision to allow evidence of defendant’s unruly behavior at various bars throughout the

night of the charged offense. Mackrill, ¶ 43. We determined that the events occurring at

other bars the same night that the defendant assaulted the victim at a bar were

“sufficiently contemporaneous with the assault itself.” Mackrill, ¶ 43.

¶18    Here, Huckins’s testimony about the threats and the parking-lot assault was linked

to and explanatory of Lamarr’s assault of Hill. Hill’s decision to get involved and ask

Lamarr, a man he had never met, to leave the bar was based on the information related to

him by Huckins. That information was necessary for the jury to have context for the

exchange between Lamarr and Hill. Both Huckins and Hill testified as to how Huckins’s

prior interaction with Lamarr influenced the way they handled the situation when Lamarr

approached their table in the bar. The situation developed as a “continuing series of

events” and was “sufficiently contemporaneous.” Guill, ¶ 45; Mackrill, ¶ 43. The Justice

Court determined that Hill would not have gotten involved at all but for the prior

exchanges between Huckins and Lamarr. We conclude that Lamarr has not demonstrated

an abuse of the trial court’s discretion in admitting the evidence.

¶19    Lamarr also argues that the court failed to properly address his Rule 403 objection

that Huckins’s testimony would be substantially more prejudicial than probative. “Rule

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403 does not require the exclusion of relevant information simply because it is

prejudicial. In a criminal prosecution most of the evidence offered by the prosecution is

prejudicial to the defendant.” State v. Stewart, 2012 MT 317, ¶ 68, 367 Mont. 503, 291

P.3d 1187. A court has discretion to exclude the evidence only when it poses a danger of

unfair prejudice that substantially outweighs its probative value. M. R. Evid. 403.

¶20   Here, the court determined that because “Huckins was involved all the way,” his

testimony regarding the events was highly probative to the charged offense. Further, the

court was not convinced that the evidence was unfairly prejudicial, stating that all

evidence is prejudicial in one way or another. Lamarr argues that the State’s proferred

reason for probative value—to establish Lamarr’s mental state—was inapplicable

because Lamarr asserted a justifiable-use-of-force defense, admitting that he acted with

purpose or knowledge. Lamarr ignores that a justifiable-use-of-force defense generally is

not available to a defendant “who purposely or knowingly provokes the use of force

against the person.” Section 45-3-105(2), MCA. Lamarr’s previous encounters with

Huckins assisted the jury in determining who was the aggressor in the situation and

whether Lamarr provoked the use of force.          Although Lamarr makes conclusory

statements asserting prejudice, he has failed to point to any unfair prejudice resulting

from Huckins’s testimony, much less any that would substantially outweigh the

testimony’s probative value. We conclude that the Justice Court did not err in refusing

Lamarr’s request to exclude the evidence under Rule 403.




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¶21    Lamarr finally argues that Huckins’s testimony regarding the prior threats was

inadmissible because the State did not provide proper notice during discovery. At trial,

Huckins testified that Lamarr had sent him death threats in the weeks leading up to the

parking-lot assault. Lamarr argues that Huckins’s written statement was not enough to

put Lamarr on notice that evidence regarding death threats would be introduced.

¶22    Under the statutes governing discovery, the State must disclose to the defendant,

upon request, the witnesses it may call and the evidence it may introduce. Section 46-15-

322, MCA.      Nevertheless, the State “may not be required to prepare or disclose

summaries of witnesses’ testimony.”      Section 46-15-322(5), MCA.      Here, the State

disclosed that Huckins would be called as a witness and submitted his written statement

to the defense. In relevant part, this statement provided that “[Lamarr] began to threaten

me and slap me as hard as he could which he had said before via text he was planning to

do.”

¶23    Huckins included in his written statement that Lamarr had threatened him. Lamarr

had the opportunity to interview Huckins prior to trial to obtain additional information

regarding the text messages. Lamarr also had the opportunity to cross-examine Huckins

regarding inconsistencies between his written statement and his trial testimony. Lamarr

has not demonstrated that the State was aware that Huckins would describe the threats as

“death threats” in his testimony or that it wrongfully withheld information regarding the

nature of the threats. We conclude that the Justice Court properly determined that the




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State met its discovery obligation and did not abuse its discretion by allowing the

evidence at trial.

¶24    Affirmed.


                                            /S/ BETH BAKER

We concur:

/S/ PATRICIA COTTER
/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ JIM RICE




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