                                                                         No.    89-012

                               IN THE SUPREME COURT OF THE STATE OF M N A A
                                                                     OTN




STATE OF MONTANA,

                                               P l a i n t i f f and R e s p o n d e n t ,
           -vs-

PAUL A T O Y H E I N R I C H ,
      NH N

                                               D e f e n d a n t and A p p e l l a n t .




APPEAL FROM:                                   ~ i s t r i c t ourt of t h e Seventh J u d i c i a l ~ i s t r i c t ,
                                                             C
                                               I n and f o r t h e County o f ~ i c h l a n d ,
                                               The H o n o r a b l e D a l e Cox, J u d g e p r e s i d i n g .


COUNSEL O RECORD:
         F

           For Appellant:

                                               J . Douglas A l e x a n d e r , S i d n e y , Montana

           For Respondent:

                                               Hon. Marc R a c i c o t , A t t o r n e y G e n e r a l , H e l e n a , Montana
                                               ~ a t r i c i a . S c h a e f f e r , A s s t . A t t y . G e n e r a l , Helena
                                                              J
                                               v i c t o r G . Koch, County A t t o r n e y ; P h i l l i p C a r t e r , Deputy,
                                               S i d n e y , Montana




                                                                               S u b m i t t e d on B r i e f s :   Dec.   1 4 , 1989
                                                                                  Decided:          F e b r u a r y 1 4 , 1990
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Honorable Joel G. Roth, District Judge, delivered the Opinion of
the Court.
     The defendant appeals his conviction of felony assault from
the District Court of the Seventh Judicial District, Richland
County.   During the jury trial, the trial court admitted evidence
of other crimes committed by the defendant.     The defendant, on
appeal, contends that by admitting said evidence prejudicial error
was committed which requires reversal.   We agree.


                      PRE-TRIAL PROCEEDINGS
     As the result of a reported shooting incident on August 11,
1987, at the defendant's trailer house near Sidney, Montana, and
the subsequent investigation, the Richland County Attorney on
August 17, 1987, filed two criminal charges against the defendant:
Count I, alleged assault, a felony, and Count 11, alleged criminal
possession of dangerous drugs (marijuana), a felony.       Count I
alleged that the defendant purposely or knowingly caused reasonable
apprehension of serious bodily injury in another by use of a weapon
when, on or about August 11, 1987, the defendant pointed a revolver
in the direction of a vehicle occupied by Henry David LaFever and
John P. Knoop and caused Henry David LaFever to believe he might
be seriously injured or killed by a shot from the revolver, in
violation of 5 45-5-202(2) (b), MCA.   Count I1 alleged that on or
about August 11, 12 or 13, 1987, or any combination of those three
dates, the defendant possessed a dangerous drug by having in his
possession more than sixty grams of marijuana, in violation of
§   45-9-102 ( 4 ) , MCA.
       The defendant pled not guilty to both charges on September 16,
1987, and filed a notice of defense of justifiable use of force as
to the assault charge.
       The State on October 30, 1987, gave its written notice of
intent to introduce evidence of other crimes (commonly referred to
as the Just notice).        Pursuant to the Just notice, the State sought
a pretrial ruling from the trial judge which would allow the State
to offer evidence of three other crimes committed by the defendant.
The Just notice described the evidence would be: (1) a July 27,
1983, offense of criminal possession of dangerous drugs, a felony,
to which the defendant pled guilty on November 16, 1983 (offered
to prove the defendant's motive, intent, absence of mistake or
accident in the instant drug charge); (2) a July 29, 1983, offense
of intimidation, a felony, for which the defendant was sentenced
on January 4, 1984 (offered to prove defendant's motive, intent,
preparation, plan, absence of mistake or accident in the instant
assault charge) ; and (3) evidence of the seizure of dangerous drugs
in defendant's trailer house on August 12, 1987 (offered to prove
defendant's motive, intent, absence of mistake or accident and to
disprove defendant's claim that the drugs belonged to another
person in the instant drug charge).
     The defendant's attorney moved on February 11, 1988, to
exclude the evidence of the other crimes.   The defendant's motion
to exclude and the State's Just notice were heard by the trial
court on the morning of the first day of the jury trial, March 7,
1988.
     The jury trial commenced on March 7, 1988.   The roll call of
the summoned jurors was completed and the pre-voir dire panel was
seated in the jury box.   The prospective jurors were then excused
and the defendant changed his plea to guilty to Count 11, criminal
possession of dangerous drugs, a felony.    After questioning the
defendant, the trial judge accepted the guilty plea.   There is no
appeal from the defendant's conviction of Count 11.
     The State's Just notice and the defendant's opposition thereto
were then argued to the trial court.        The judge denied the
defendant's motion to exclude the other crimes evidence and allowed
the State to offer evidence of the defendant's 1983 drug conviction
and 1983 intimidation conviction and the evidence of the August 12,
1987, seizure of marijuana at the defendant's trailer house and
evidence of the August 13, 1987, seizure of the bag of marijuana
thrown from the defendant's car. The reasoning of the trial judge
was that the evidence of the other crimes would go to prove the
motive of the defendant in assaulting Henry LaFever with the
revolver.   The motive was to scare and intimidate Henry LaFever
because the defendant thought Henry LaFever was telling the Sidney
law enforcement people that he (the defendant) was in possession
of and dealing in dangerous drugs.   Additionally, the evidence of
the other crimes would go to rebut the defendant's asserted defense
of justifiable use of force for self-defense.
     The trial then proceeded with the voir dire of the jury panel,
the exericse of peremptory challenges, the opening statements of
counsel and the presentation of evidence.


                      THE EVIDENCE AT TRIAL
     Twelve witnesses testified at trial (including the defendant)
and certain documents and items of physical evidence were admitted.
The evidence established the following chain of events.
     On August 11, 1987, about 4:45 p.m., Henry LaFever and John
Knoop drove in LaFeverVs Chevy pick-up truck to the defendant's
trailer house which was located near Sidney, Montana, in Richland
County.   LaFever intended to confront the defendant about rumors
that he (the defendant) had been spreading around town that LaFever
called the police on him (the defendant) for possessing or dealing
dangerous drugs. When LaFever and Knoop arrived at the defendant's
trailer house, no one was there. A few minutes later they observed
the defendant's 1967 black Camaro approaching the trailer house on
the gravel road. The Camaro pulled into the yard and stopped. The
occupants of the Camaro were the defendant (driving) and passengers
Gisele LaFever (Henry's sister who was also the girlfriend of the
defendant) and Robert Wagner.
     Wagner testified that LaFever said, "Get out of the car.    I'm
going to kill you, you little bastard."     LaFever testified, "1
asked him [the defendant] why held been spreading around town that
I'd called the police on him."    The defendant testified that he
suspected LaFever of telling the police that he (the defendant) was
dealing drugs and he told that to LaFever during the ensuing fight.
LaFever grabbed the defendant around the neck as the defendant was
getting out of his car and threw him on the ground and banged his
head on the ground. A wrestling match resulted between the two men
which lasted for a few minutes with LaFever getting the best of the
defendant.   LaFever is 6' tall and weighs about 180 to 200 pounds,
while the defendant is 5'7'' and weighs about 135 pounds.     Wagner
picked up a piece of pipe to assure that Knoop would not enter the
fracas.   While the two men were wrestling on the ground, Gisele
grabbed her brother by the hair and told him to stop and to leave.
     Henry LaFever backhanded    Gisele across her    face.     The
defendant broke away from Henry and ran into the trailer house
where he obtained a .22 caliber Ruger Bearcat revolver from his
dresser and came back outside. In the meantime, Henry LaFever and
Knoop were in the process of getting into LaFeverlstruck to leave.
There was conflicting evidence about whether the defendant ever
pointed the revolver at LaFever or Knoop or the truck.   Two shots
were fired by the defendant.     Some of the testimony was to the
effect that the defendant was pointing the revolver in the
direction of the truck when the shots were fired. Other testimony
was that the defendant pointed the revolver upward toward the sky
when he fired the two shots.    There were no bullet holes found in
LaFeverls truck and no one was injured by the shots.      There was
conflicting testimony about whether or not LaFever was wearing a
knife on his belt.   The defendant testified that he did not use the
gun to intimidate LaFever about informing on him but rather the
defendant shot the revolver to drive LaFever and Knoop off.     The
defendant testified that he was trying to convey a message to
LaFever that he had a gun and it was loaded and if LaFever came
back to hurt him he had some protection.
     Immediately after LaFever and Knoop left, the defendant told
Gisele to go to the neighbor1 house and call the sheriff.
                             s                                  She
did, and shortly thereafter Deputy Richland County Sheriff Charles
Greenough arrived at the trailer house.    He asked the defendant,
Gisele and Wagner to write out statements of what had occurred.
Greenough learned from the three that LaFever had assaulted the
defendant. Nothing was said about defendant's use of the revolver.
Greenough then went to Knooplshouse and took statements from both
Knoop and LaFever.   From them he learned that a revolver had been
fired by the defendant.
     Deputy Greenough knew that the defendant was on parole from
the Montana State Prison and so he contacted Jack Fasig, the local
parole officer, and informed Fasig of the fact that the defendant
had fired a gun.     Because it was a violation of the defendant 's
parole conditions for him to possess a gun and the location of the
gun was unknown, Fasig obtained a search warrant for the gun from
the local justice of the peace on August 12, 1987.      The search
warrant authorized a search of the defendant's trailer house and
his two vehicles.    During the evening of August 12, 1987, Fasig
and Greenough went to the defendant's trailer house (no one was
there) and searched for the revolver.      They did not find it.
However, they did find (and seize) in the trailer house marijuana
roaches, a marijuana cigarette, marijuana seeds and drug parapher-
nalia (a pipe)   .
     During the morning of August 12, 1987, Gisele went to the
Sidney police and to the county attorney to discuss the fight.
There was a dispute in the testimony about whether or not the
defendant was with her at the police station and at the county
attorney's office.
     Later the same morning (August 12), the defendant, Gisele and
Wagner drove to a town about seventy miles from Sidney to take
Wagner to a carnival where he was working.      The defendant and
Gisele returned to Sidney later that night and were spotted by
police officer John Dynneson about midnight.   Dynneson knew there
was a search warrant outstanding for the gun and so he reported the
sighting to Greenough.    Greenough contacted Fasig who said he was
on his way.
     Greenough and Bill Anderson, a jailer, left by car to find the
defendant's car (the Camaro).      They found it and stopped the
defendant.    The defendant was driving and Gisele was a passenger.
Greenough told the defendant that Fasig had a search warrant for
the car to search for the gun and that Fasig was on his way.
Greenough asked the defendant to give him the gun if he had it, and
the defendant opened the truck of the car voluntarily and produced
the holstered revolver and placed it on the top of the car trunk
as ordered by Greenough. Fasig had not yet arrived and it was cold
so Greenough allowed the defendant and Gisele to get back into the
car. The defendant and Gisele sat in the car about fifteen minutes
and then unexpectedly and without permission from Greenough drove
away quickly.    The holstered revolver fell off the trunk and was
retrieved by Anderson who then with Greenough gave chase.    Fasig
arrived about that time and both cars then pursued the defendant's
car for three or four miles but were unable to catch the car.
However, during the chase, Greenough observed the defendant's car
stop momentarily and then continue on.    After Greenough lost the
defendant's car, he returned to the place on the road where he had
seen the defendant stop and found a bag of marijuana near the road.
       Upon inspection of the .22 caliber Ruger Bearcat revolver,
there were six cartridges in the cylinder; four live rounds and two
empty rounds.
       During Greenough's pursuit of the defendant's car, Greenough
contacted the sheriff's office in McKenzie County, North Dakota,
for assistance in stopping the defendant.        Later on August 13,
1987, North Dakota Deputy Sheriff Lloyd Clock found the defendant's

car empty and locked at a well site and reported the same to
Greenough.      The defendant's car was impounded and towed into
Sidney.
       During the chase of the defendant's car and when the car
momentarily stopped, not only was the bag of marijuana thrown out,
but the defendant got out and hid in the bushes while Gisele drove
off.    Gisele, after abandoning the car at the well site, went to
a friend's house and stayed there. A few days later the defendant
telephoned her and Gisele then borrowed a car, picked up the
defendant and they left the Sidney area.   The defendant was later
apprehended in the borrowed car in Park City, Montana.


                      EVIDENCE OF OTHER CRIMES
       During the trial and over the continuing objections of
defendant's lawyer, evidence was admitted about the other crimes
committed by the defendant.    The trial judge gave the cautionary
instruction as the evidence was presented and also gave it as a
final instruction as required by the Just case.    Fasig testified
about executing the search warrant for the revolver at the
defendantlsunoccupied trailer house on August 12, 1987. Although
the revolver was not found, Fasig testified about finding and
seizing marijuana roaches, a marijuana cigarette, marijuana seeds
and drug paraphernalia (a pipe).
     Also during trial, Greenough testified about finding the bag
of marijuana (containing over 200 grams) along the side of the road
where the defendant had momentarily stopped on August 13, 1987.
     It is to be noted that the defendant had pled guilty to the
drug charge at the beginning of this trial.   There was no need for
the State to present evidence relating to the drug charge as the
defendant had admitted his possession of dangerous drugs.
     If the marijuana evidence of August 12 and August 13 was
somehow related to the assault charge (which we do not accept), it
was not admissible as "prior1'crimes evidence because the assault
occurred on August 11, 1987.       It would be ltsubsequentll
                                                            crimes
evidence and clearly not admissible under State v. Just (1979), 184
Mont. 262, 602 P.2d 957.   We fail to understand how the August 12
and August 13 marijuana evidence is similar to the assault offense
or how it tends to establish a common scheme, plan or system.   As
indicated above, the August 12 and August 13 marijuana evidence was
glsubsequent" and not "prior" to the assault.
            to                                    We hold that the
Just requirement of nearness in time relates to other crimes or
wrongs committed "priorw to the offense for which the defendant is
being tried.   The prejudice to the defendant by allowing the post-
assault marijuana evidence to be admitted to prove the assault
offense is obvious and is not harmless.
     Also during the trial, Fasig testified about the defendant's
July 27, 1983, dangerous drug offense and his conviction thereof.
In applying the four factors set out in the Just case to this prior
crimes evidence, we consider the similarity of it to the present
assault charge and find no similarity; the nearness in time of the
1983 drug conviction to the 1987 assault and find over four years
intervened; the tendency of the 1983 drug conviction to establish
a common scheme, plan or system and find no common scheme, plan or
system. The prejudice to the defendant by admitting the prior 1983
drug conviction when it does not satisfy the four factors test of
the Just case is evident and is not harmless error.
     Finally, during the trial, both Fasig and witness Loren James
Lowry testified about the defendant's July 29, 1983, felony
intimidation offense.   The testimony was to the effect that the
defendant had intimidated a person named Steve Herman because the
defendant thought Herman had informed (about having drugs) on
either the defendant or the defendant's then common-law wife, Pam
Junso.   Fasig testified that the defendant had threatened to kill
Herman if Herman testified against the defendant in connection with
the July 27, 1983, drug offense.        Lowry testified that the
defendant wanted to know from Herman who had informed on him and
there was an altercation between the defendant and Herman (a
shoving match) but no fists were swung and no weapon was involved
and no threats were made by the defendant.        Unfortunately, a
certified copy of the intimidation charge and conviction was not
made part of the record to clarify whether it was the defendant or
the defendant's common-law wife on whom Herman had presumably
informed.
     Again, applying the four factors of the Just case to the
defendant's 1983 intimidation offense, we find the similarity of
the intimidation offense to the present assault charge to be
lacking (the victims in the two offenses were different, no weapon
was used in the intimidation offense whereas a revolver was used
in the assault, and the defendant sought out Herman in 1983 whereas
LaFever sought out the defendant in the present assault offense);
the 1983 intimidation offense was over four years prior to the
present assault charge; and the 1983 intimidation offense does not
tend to establish a common scheme, plan or system.   The prejudice
to the defendant in allowing the 1983 intimidation evidence is
clear and is not harmless.
     Rule 404(b) of the Montana Rules of Evidence provides:
            Other crimes, wrongs, acts. Evidence of other
            crimes, wrongs, or acts is not admissible to
            prove the character of a person in order to
            show that he acted in conformity therewith.
            It may, however, be admissible for other
            purposes, such as proof of motive, oppor-
            tunity, intent, preparation, plan, knowledge,
            identity, or absence of mistake or accident.
     The Just case requires that the trial judge consider the
proposed other crimes evidence at a pretrial hearing in light of
the four factors set forth in Just: similarity of crimes; nearness
in time; tendency to establish a common scheme, plan or system; and
that the probative value of the other crimes evidence is not
substantially outweighed by prejudice to the defendant.      Other
cases discussing the required Just case analysis are State v. Case
(1980), 190 Mont. 450, 621 P.2d 1066, and State v. Hansen (1980),
187 Mont. 91, 608 P.2d 1083, afftd after remand, 633 P.2d 1202, 38
St.Rep. 1541.
     In light of our discussion above, we conclude that the trial
judge erred in his pretrial ruling which would permit the State to
present the other crimes evidence, and there was prejudicial error
when the other crimes evidence was admitted during trial.


                             CONCLUSION
     This case is an example of the State presenting other crimes
evidence which does not satisfy the strict requirements of the Just
decision.   The admission of other crimes evidence is the exception
and not the rule. The defendant was prejudiced by the other crimes
evidence allowed into evidence in this case and his conviction of
felony assault is reversed. This cause is remanded to the District
Court of the Seventh Judicial District.




                                    Q.&c.z.</
                              Hon. jdel G. Roth, District Judge,
                              sitting in place of Justice R - C.
                                                            .
                              McDonough, who deems himself dis-
                              qualified.


We concur:




 @f
  &
406.Ted L. ~i>-*$/  District
Judge, sitting byplace of Justice
Diane G. Barz, who deems herself
disqualified.
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                           No. 89-012

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STATE OF MONTANA,                       1           -.
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PAUL ANTHONY HEINRICH,
                                        1
          Defendant and Appellant.      1


     On February 14, 1990, this Court entered its Opinion in this
appeal.
     On February 23, 1990, the State of Montana filed a petition
for rehearing and a response to the petition for rehearing was
filed by appellant on March 27, 1990. The Court having considered
the petition for rehearing and response thereto,
     IT IS ORDERED:
     1. The following paragraph beginning at line 14 on page 11
of the Opinion of the Court is hereby deleted:
             If the marijuana evidence of August 12 and
          August 13 was somehow related to the assault
          charge (which we do not accept), it was not
          admissible as "priorI1 crimes evidence because
          the assault occurred on August 11, 1987. It
          would be llsubsequentucrimes evidence and
          clearly not admissible under State v. Just
          (1979), 184 Mont. 262, 602 P.2d 957. We fail
          to understand how the August 12 and August 13
          marijuana evidence is similar to the assault
          offense or how it tends to establish a common
          scheme, plan or system. As indicated above,
          the August 12 and August 13 marijuana evidence
          was llsubsequentll and not Inprior" to the
                            to
          assault. We hold that the Just requirement of
          nearness in time relates to other crimes or
          wrongs committed ltpriorll the offense for
                                     to
             which the defendant is being tried.        The
             prejudice to the defendant by allowing the
             post-assault marijuana evidence to be admitted
             to prove the assault offense is obvious and is
             not harmless.
     2.   The following paragraph shall be inserted in the Opinion
of this Court in place of the paragraph above-deleted:
                We fail to understand how the August 12 and
             August 13 marijuana evidence is related or
             similar to the assault charge or how it tends
             to establish a common scheme, plan or system.
             The prejudice to the defendant by allowing the
             August 12 and 13 marijuana evidence to be
             admitted to prove the assault offense out-
             weighs its probative value and is not harm-
             less.
     3.   On page 9, line 10, of the Opinion Ittruck of the carM
should read Ittrunkof the car."
     4.   Let remittitur issue forthwith.
     DATED this     /yg    day of April, 1990.




                                                      ~istr-ict - -
                                 Hon. 4661 G. ~ o t h ,       Judqe,
                                 sittidcj in place of Justice R. C.
                                 McDonough



We concur:
H o 6 . Ted L . ~ i - z d p ! r / ) D i s t r i c t
Judge, s i t t i n g jln&lace of
J u s t i c e Diane G . Barz
