                                           No. 05-717

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2006 MT 310N


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

JOHN EDWARD CRATER,

              Defendant and Appellant.




APPEAL FROM:         The District Court of the First Judicial District,
                     In and For the County of Lewis and Clark, Cause No. CDC 2005-181,
                     Honorable Thomas C. Honzel, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     Shannon McDonald, Public Defender’s Office, Helena, Montana

              For Respondent:

                     Hon. Mike McGrath, Montana Attorney General, Joslyn M. Hunt,
                     Assistant Attorney General, Helena, Montana

                     Leo J. Gallagher, Lewis and Clark County Attorney, Michael Menahan,
                     Deputy County Attorney, Helena, Montana


                                                         Submitted on Briefs: August 15, 2006

                                                               Decided: November 29, 2006

Filed:

                     __________________________________________
                                        Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section 1, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal

Operating Rules, as amended in 2003, the following memorandum decision shall not be

cited as precedent. Its case title, Supreme Court cause number and disposition shall be

included in this Court’s quarterly list of noncitable cases published in the Pacific

Reporter and Montana Reports.

¶2     John Crater (Crater) appeals the First Judicial District Court’s denial of his motion

for a mistrial. We affirm.

                        FACTUAL AND PROCEDURAL BACKGROUND

¶3     On May 16, 2005, police officers with the Helena Police Department responded to

a call reporting a disturbance. Upon arriving at the scene, Officer Callahan observed that

Crater and another man were engaged in a physical altercation. Although the officers

broke up the fight, Crater remained aggressive and hostile. Therefore, he was handcuffed

and subsequently arrested.

¶4     On June 1, 2005, an Information was filed charging Crater with one count of

felony burglary and two counts of misdemeanor assault.           On June 9, 2005, Crater

appeared with appointed counsel and pleaded not guilty to all offenses. Two days before

trial, Crater filed a motion in limine seeking to bar any evidence of his prior bad acts or

criminal activity from being presented to the jury. The State did not object and the

District Court granted the motion. A jury trial was held on July 25-26, 2005. During the

course of the trial, Callahan testified that his decision to handcuff Crater was “based on

past experiences we’ve had — .” Before completing his statement, the officer was


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instructed to stop speaking. The State’s attorney rephrased the question and Callahan

explained in the presence of the jury that he had handcuffed Crater “believing he may

have been implicated in a crime at that point.”

¶5     Based on the officer’s interrupted statement, and outside of the presence of the

jury, Crater’s counsel moved for a mistrial arguing that the officer’s testimony

constituted a statement regarding his past experience with Crater, in violation of the

motion in limine prohibiting reference to prior bad acts by Crater. The State responded

that the officer intended to testify that it was the general policy of the police department,

based on various officers’ experiences, to detain and handcuff individuals when they

become violent. The State further argued that the officer did not state that he had had

prior experiences with Crater, nor did he mention or refer to any prior criminal acts

Crater committed. After hearing arguments from both parties, the District Court

concluded the partial statement did not warrant a mistrial and denied the motion. Crater

was found guilty of felony burglary and one count of misdemeanor assault.

¶6     At the sentencing hearing on September 14, 2005, Crater was sentenced to fifteen

(15) years at Montana State Prison, with eight (8) years suspended, on the felony burglary

charge. He also was sentenced to six months, suspended, for misdemeanor assault and

received credit for sixty-five (65) days served. These sentences were accompanied by

certain conditions, including fines and restitution. Crater filed a timely appeal.

                                           ISSUE

¶7     A restatement of the issue on appeal is whether the District Court abused its

discretion when it denied Crater’s motion for a mistrial.


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                               STANDARD OF REVIEW

¶8     We review a district court’s ruling on a motion for a mistrial for an abuse of

discretion. When a defendant moves for a mistrial, the district court bases its ruling on

whether the defendant has received a fair and impartial trial. State v. Partin, 287 Mont.

12, 15-18, 951 P.2d 1002, 1004-05 (1997).

                                      DISCUSSION

¶9     Did the District Court abuse its discretion when it denied Crater’s motion for a
mistrial?

¶10    Where there is a reasonable possibility that inadmissible evidence might have

contributed to the conviction, a mistrial is appropriate. State v. Weldele, 2003 MT 117,

¶ 75, 315 Mont. 452, ¶ 75, 69 P.3d 1162, ¶ 75. In determining whether a prohibited

statement contributed to a conviction, a court must consider: 1) the strength of the

evidence against the defendant; 2) the prejudicial effect of the testimony; and 3) whether

a cautionary jury instruction could cure any prejudice. Partin, 287 Mont. at 18, 951 P.2d

at 1005. The record reveals that no cautionary jury instruction was given.

¶11    The District Court did not abuse its discretion when it denied Crater’s motion for a

mistrial.   The record contains sufficient evidence for the jury’s verdict. The order

granting Crater’s motion in limine prohibited reference to previous crimes or bad acts

committed by Crater.      Callahan’s partial statement did not reference Crater, past

experience the officer had had with Crater, or prior crimes or bad acts committed by

Crater; therefore, the incomplete statement by Callahan had little or no prejudicial effect.

We conclude the officer’s testimony did not contribute to Crater’s conviction.



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¶12      We have decided this case pursuant to Section 1, Paragraph 3(d) of our 1996

Internal Operating Rules, as amended in 2003, which provides for memorandum

opinions. It is manifest on the face of the briefs and the record that the appeal is without

merit.

¶13      For the foregoing reasons, we affirm the judgment of the District Court.


                                                  /S/ PATRICIA COTTER



We Concur:

/S/ KARLA M. GRAY
/S/ JIM RICE
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS




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