                               No. 81-15
          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1981


STATE OF MONTANA,
                         Plaintiff and Respondent,
         VS   .
LARRY WURTZ ,
                         Defendant and Appellant.


Appeal from:       District Court of the Eleventh Judicial District,
                   In and for the County of Flathead.
                   Honorable Robert Sykes, Judge presiding.
Counsel of Record:
     For Appellant:
              Hash, Jellison, O'Brien and Bartlett, Kalispell,
               Montana
              James C. Bartlett argued, Kalispell, Montana
     For Respondent:
              Hon. Mike Greely, Attorney General, Helena, Montana
              Chris D. Tweeten argued, Assistant Attorney General,
               Helena, Montana
              Ted 0. Lympus, County Attorney, Kalispell, Montana


                             Submitted:    June 19, 1981
                               Decided:    November 6, 1981

Filed:    NOV 6 - 198l


                                   Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the
Court.

        Larry Wurtz was found guilty of intimidation after
being tried     by jury in the Eleventh Judicial District,
Flathead County, and was sentenced to ten years imprison-
ment.     He appeals his conviction.   We affirm.
        On April 10, 1980, K.S. was walking home from her job
as a legal secretary in Kalispell, Montana.     While she was
crossing the street, she noticed a blue car that was stopped
at a stop sign.    K.S. proceeded one half block down the
street.    As she crossed an alley, the blue car pulled into the
alley and stopped behind her.    The driver's window was open,
and the driver asked K.S., "Do you want to fuck?"     K.S. looked
at the driver and then walked on.      She later identified Larry
Wurtz as the driver of the car.
    As K.S. walked down the street, the car kept pace and the
driver continued to make obscene comments.     When K.S. reached
the next alley, the car pulled into the alley and blocked her
path.     The defendant said, "I want to rape you" or words to
that effect or "I am going to rape you."      He also said, "Do
you want to suck my cock?"    K.S. walked behind the car and
memorized the license number.     The driver placed his car in
reverse as if to run over K.S. and she ran one-half block to
a neighboring house.    The door was locked so K.S. hid between
two houses.     The car proceeded down the street and out of
sight.     K.S. then ran to her house and called the police.    She
observed the car driving around the neighborhood while she
was speaking to the police over the telephone.
        At trial, the State presented the testimony of K.S. and
that of two other witnesses, Addison Clark and S.B.     Clark was
a Kalispell police officer who participated in the investigation
of the case against the defendant.      He testified, over objection,
that a license check had been run on the numbers that K.S.
had observed on the blue car, and that the car was registered
to the defendant.     He also testified that he showed K.S. a
photo array containing the defendant's photo together with
six others depicting persons meeting the defendant's general
description.     K.S. identified the defendant's photo as being
that of the driver of the car.
        S.B., a high school student, testified to a prior incident
involving the defendant.     She stated that on June 23, 1979,
at approximately 4:30 to 5:00 p.m., she was walking toward
Flathead High School when Larry Wurtz drove by in the opposite
direction and stuck his tongue out at her in a suggestive manner.
When S.B. arrived at the high school parking lot, the defendant
drove up and asked S.B. to have sexual intercourse with him.
He also asked her if she wanted to see his penis.    When S.B.
rebuffed the defendant's advances, he jumped out of the car
and grabbed her.    Wurtz unsnapped S.B.'s pants and was beginning
to unzip his when S.B. broke away from him and ran to safety
in the high school.     While Wurtz was restraining S.B., he
continued to make obscene comments.     S.B. was able to identify
Wurtz, and he pleaded guilty to sexual assault on September 7,
1979.
     Wurtz was found guilty of intimidation and raises five
issues in his appeal:
        1. Whether the charge of intimidation under section
45-5-203(1) (c), MCA,    is unconstitutional.
        2. Whether the charge of intimidation should have been
dismissed as a matter of law for the reason that it was not
supported by the evidence.
        3. Whether the court properly instructed the jury.
        4. Whether the court properly admitted other crime
evidence through the testimony of S.B.
       5. Whether the court properly admitted the testimony of
policeman Addison Clark.
Issue No. 1:    The appellant was convicted under section 45-
5-203 (1) (c), MCA, which states that:
       "A person commits the offense of intimidation when,
       with the purpose to cause another to perform or omit
       the performance of any act, he communicates to
       another a threat to perform without lawful authority
       any of the following acts:   ...
       "(c) commit any criminal offense:.   . ."
Appellant contends that the above section is overbroad on
its face and therefore an infringement of various rights
guaranteed by the First Amendment to the United States
Constitution.      The allegation of overbreadth rests upon the
restriction that the section places upon communication of
threats to commit "insubstantial evil."
       Appellant relies solely upon Landry v. Daley (N.D. Ill.
1968), 280 F.Supp. 938, rev'd on other grounds sub nom.
Boyle v. Landry (1971), 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d
696.    That case involved section 12-6 (a)(3), Illinois Criminal
Code (1961), which is virtually      identical to section 45-5-
203 (1)(c), MCA.
       Landry v. Daley was a declaratory judgment action
brought by black citizens and ACT, a civil rights group.
ACT engaged in picketing, demonstrations, rallies and other
activities to accomplish its goals.      The plaintiffs sought
injunctions against the enforcement of Illinois statutes and
Chicago ordinances.      They alleged that the laws were being
used to deprive them of the free exercise of their First
Amendment rights.      The three-judge federal court declared
the "any criminal offense" section of the Illinois statute
to be unconstitutional.
     "The provision is not vague. It is, however,
     overbroad since it prohibits threats of
     insubstantial evil. The commission of criminal
     offenses against persons or property is a sub-
     stantial evil, and the state may legitimately
     proscribe the making of threats to commit such
     offenses. The commission of offenses against
     public order only, however, is not such a
     substantial evil that the state may prohibit the
     threat of it. Sub-paragraph (a)(3) proscribes
     threats to violate - penal statute. It there-
                        any
     fore makes criminal threats such as the following:
     (1) [sic] threats by dissentient grounds to
     engage in disorderly conduct, threats by residents
     of a high-crime neighborhood to carry concealed
     weapons for their own protection, and threats by
     mothers to block a dangerous state highway to
     demonstrate the need for increased safety measures.
     Indeed, the phrase 'commit any criminal offense' is
     so broad as to include threats to commit mis-
     demeanors punishable by fine only. These evils
     are not so substantial that the state's interest
     in prohibiting the threat of them outweighs the
     public interest in giving legitimate political
     discussion a wide berth." Landry v. Daley, 280
     F.Supp. at 964.
     The decision in Landry v. Daley was reversed in Boyle
v. Landry (1971), 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696.
The Supreme Court found that the injunction was issued pre-
maturely because:
     "It is obvious that the allegations of the complaint
     in this case fall far short of showing any irreparable
     injury from threats or actual prosecutions under the
     intimidation statute or from any other conduct by
     state or city officials. Not a single one of the
     citizens who brought this action had ever been
     prosecuted, charged, or even arrested under the
     particular intimidation statute which the court
     below held unconstitutional .  .. r$e normal course
                                        ll
     of state criminal prosecutions cannot be disrupted
     or blocked on the basis of charges which in the last
     analysis amount to nothing more than speculation
     about the future." Boyle v. Landry, 401 U.S. at
     80-81, 91 S.Ct. at 760, 27 L.Ed.2d at 699-700.
Appellant argues that the reversal of Landry v. Daley by
Boyle v. Landry does not weaken the reasoning of the three-
judge federal court.   We find, however, that statements of
the United States Supreme Court subsequent to the Landry v.
Daley decision lead us to conclude that section 45-5-203(1)
(c), MCA, is not overbroad.
     Broadrick v. Oklahoma (1973), 413 U.S. 601, 93 S.Ct.
2908, 37 L.Ed.2d 830, involved an Oklahoma statute which
limited the political participation of certain state employees.
Three state employees who had been charged under the statute
challenged it as vague and overbroad.   The Supreme Court

affirmed the federal district court holding that the statute
was constitutional, and said:
     "Embedded in the traditional rules governing con-
     stitutional adjudication is the principle that a
     person to whom a statute may constitutionally be
     applied will not be heard to challenge that statute
     on the ground that it may conceivably be applied
     unconstitutionally to others, in other situations
     not before the Court.. ..  [An] exception has been
     carved out in the area of the First Amendment.
    "It has long been recognized that the First Amend-
    ment needs breathing space and that statutes at-
    tempting to restrict or burden the exercise of
    First Amendment rights must be narrowly drawn and
    represent a considered legislative judgment that a
    particular mode of expression has to give way to
    other compelling needs of society .   ..Litigants,
    therefore, are permitted to challenge a statute not
    because their own rights of free expression are
    violated, but because of a judicial prediction or
    assumption that the statute's very existence may
    cause others not before the court to refrain from
    constitutionally protected speech or expression.   . ."
    Broadrick, 413 U.S. at 610, 611-612, 93 S.Ct. at 2915-
    2916, 37 L.Ed.2d at 839-840.
    "It remains a 'matter of no little difficulty' to
    determine when a law may properly be held void on
    its face and when 'such summary action' is inappro-
    priate. Coates v. City of Cincinnati, 402 U.S. 611,
    617, 91 S.Ct. 1686, 1689, 29 L.Ed.2d 214 (1971)
    (opinion of Black, J.). But the plain import
    of our cases is, at the very least, that facial
    overbreadth adjudication is an exception to our tra-
    ditional rules of practice and that its function, a
    limited one at the outset, attenuates as the other-
    wise unprotected behavior that it forbids the State
    to sanction moves from 'pure speech' toward conduct
    and that conduct--even if expressive--falls within
    the scope of otherwise valid criminal laws that re-
    flect legitimate state interests in maintaining
    comprehensive controls over harmful, constitutionally
    unprotected conduct. Although such laws, if too
    broadly worded, may deter protected speech to some
    unknown extent, there comes a point where that effect
    --at best a prediction--cannot, with confidence,
    justify invalidating a statute on its face and so
    prohibiting a State from enforcing the statute against
    conduct that is admittedly within its power to pro-
    scribe. Cf. Alderman v. United States, 394 U.S. 165,
    174-175, 89 S.Ct. 961, 966-967, 22 L.Ed.2d 176
     (1969). To put the matter another way, par-
    ticularly where conduct and not merely speech is
    involved, we believe that the overbreadth of a
    statute must not only be real, but substantial as
    well, judged in relation to the statute's plainly
    legitimate sweep. It is our view that 5 818 is not
    substantially overbroad and that whatever overbreadth
    may exist should be cured through case-by-case
    analysis of the fact situations to which its sanc-
    tions, assertedly, may not be applied." Broadrick,
    413 U.S. at 615-616, 93 S.Ct. at 2917-2918, 37 L.Ed.2d
    at 842.
    We decline to make a "judicial prediction or assumption"
that the very existence of section 45-5-203(1)(c), MCA, may
cause others not now before us to refrain from constitutionally
protected speech or expression.   The activities which are
encompassed by part "c" of the Montana intimidation statute--
the commission of any criminal offense--are almost exclusively
"conduct."   In this context, the overbreadth must be substantial
in relation to the statute's plainly legitimate sweep.    The
question of whether the statute is overbroad is not decided
on the basis of whether the proscription applies to threats
of "substantial" or "insubstantial" evil.   The decision to
apply felony punishments to seemingly harmless conduct rests
with the legislature.   Our sole province is to decide whether
the conduct for which a person is being prosecuted is con-
stitutionally protected.
     We do not find it apparent or obvious that section 45-
5-203(1)(c) will deter protected speech.    Of course, the
fact that the statute may in the future be applied in a
manner that will violate the constitutional rights of some
party is not beyond the bounds of our perception.   However,
the fact that a statute may be misapplied, misused or abused
does not render the statute invalid.   Landry v. Daley, 280
F.Supp. at 967.   The Montana intimidation statute reflects a
legitimate state interest in maintaining control over con-
stitutionally unprotected conduct.   We hold that the possibility
of misapplication of section 45-5-203(1)(c) does not con-
stitute facial overbreadth.   Any future misapplication of
the statute to protected speech or conduct may be remedied
as those cases arise.
Issue No. 2: Is the charge of intimidation supported by the
evidence?
       There are three elements which the State must prove in
order to sustain a charge of intimidation: (1) that the
defendant communicated to the victim a threat to commit one
or more of the acts enumerated in section 45-5-203(1); (2)
that the defendant was without legal authority to perform
the threatened act; and (3) that the defendant had the
purpose to cause the victim to perform or omit the performance
of any act.   The State's amended information alleged that
Wurtz had the purpose to cause K.S. to engage in sexual
conduct with him.   Wurtz argues that the State failed to
prove that he had the purpose to cause K.S. to perform this
act.   We find that there was ample evidence which showed
that Larry Wurtz had the purpose to cause K.S. to engage in
sexual conduct with him.
       Wurtz followed K.S. in his vehicle as she walked down
the sidewalk.    He invited her to have sexual intercourse
with him and to perform fellatio upon him.   He told her that
he was going to rape her.    He attempted to block her way by
driving his vehicle across her path.   He continued to drive
through her neighborhood after she had fled from him.    This
evidence was in addition to the evidence of Wurtz' sexual
assault upon S.B.    The totality of the evidence supports
the conclusion that Larry Wurtz had the purpose to cause
K.S. to engage in sexual conduct with him.   We hold that
the State proved that Wurtz had the purpose to cause the
victim to perform an act.
     We note that during oral argument counsel for appellant
contended that the conduct described above only warranted a
charge of assault, a misdemeanor.       While Larry Wurtz could
have been charged with a lesser crime, that fact in no way
defeats his conviction for intimidation.       It is for the
prosecutor to determine the specific charge to be brought.
When the charge has been proved, we will not reverse simply
because a less serious charge could have been brought.
lssue No. 3:     Jury Instructions
    Appellant contends that the District Court erred by
giving the court's instructions 7, 8 and 19 and by failing
to give defendant's instructions 7, 8, 9, 22, 23, 25, 26, 27
and 28.    The court's instruction 19 was objected to below
and we will discuss that instruction in connection with the
admissibility of the testimony of S.B.       However, no objection
was made at trial to the giving or refusal of the other
instructions. The time for appellant's counsel to object to
these instructions was before they were submitted to the
jury.      Section 46-16-401(4), MCA.    The rule in this situation
has long been established:     instructions cannot be challenged
for the first time on appeal.     McGuinn v. State (1978), 177
Mont. 215, 581 P.2d 417; State v. Hill (1912), 46 Mont. 24,
126 P. 41.     The errors now asserted did not affect the
substantial rights of the defendant and shall, therefore, be
disregarded.     Section 46-20-702, MCA.
Issue No. 4: Admissibility af the testimony of S.B.
        The admissibility of evidence of prior acts is governed
by guidelines set out in State v. Just (1979), -Mont -I     .
602 P.2d 957, 36 St.Rep. 1649.       The Just case established
substantive and procedural requirements which must be met
before evidence such as the testimony of S.B. may be admitted.
     In order for evidence of other crimes, wrongs or acts
to be admissible, a court must first determine whether the
previous crimes, wrongs or acts:
     (1) are sufficiently similar;
     (2) are near enough in time;
     (3) are offered for one of the purposes permitted by
Rule 404 (b), M.R.Evid.   ;   and,
     (4) whether the probative value of the evidence is sub-
stantially outweighed by its inherently prejudicial nature.
     The testimony of S.B. described a sexual assault by
Larry Wurtz which was accomplished in a manner very similar
to the conduct which K.S. described.      The conduct could not
be said to be a commonplace occurrence.      See State v. Hansen

      ,
(1980) -       ,
        Mont. - 608 P.2d 1083, 37 St.Rep. 657.           The
events were sufficiently similar to satisfy the first element
of the test.   Second, the lapse of nine months between the
S.B. and K.S. incidents did not make the prior act too
remote in time.    This Court has permitted the admission of evi-
dence of prior acts which occurred three years before the
offense charged.     State v. Heine (1976), 169 Mont. 25, 544
P.2d 1212; State v. Jensen (1969), 153 Mont. 233, 455 P.2d 631.
Third, the evidence was presented to prove motive, intent,
or common scheme or plan.       The evidence was relevant to the
question of motive and intent.       The fact that Wurtz' pursuit
of S.B. resulted in sexual assault tended to show that he
was motivated by a purpose to cause K.S. to perform an
act--to engage in sexual contact with him.      The similarity
of the incidents also indicated that he was employing a
common scheme to achieve his intended result.      The testimony
came under Rule 404(b), M.R.Evid.    Finally, on balance, the
probative value of the evidence outweighed its prejudicial
effects.    The evidence was highly probative.   Wurtz' assault
upon S.B. was the strongest available evidence that he had
the purpose to cause K.S. to engage in sexual contact or
activity.   While the evidence was unavoidably prejudicial,
the prejudice was reduced to an acceptable level by the
District Court's adherence to the procedural safeguards
mandated by Just.
     The first procedural requirement is that the defendant
be given notice of the State's intention to use prior acts
evidence and the purposes for which the evidence is to be
admitted.   The State's pretrial motion to admit the testimony
in question stated that admission was being sought to prove
motive, intent, or common scheme or plan.     However, the jury
was instructed that the testimony was to be considered only
as proof of motive, intent or    identity.   Appellant argues
that it was improper to allow S.B.'s testimony to be used to
prove identity because appellant was not notified that it
would be used for this purpose until the trial began.     The
basic purpose of notice to the defendant is to prevent
surprise.   Just,
            - -   Mont. at          ,   602 P.2d at 960, 36
St.Rep. at 1652.    While we agree that the jury slrould have
been instructed in accordance with the purposes denominated
in the State's motion, we do not find that the appellant was
surprised or prejudiced by the fact that the evidence was
ultimately presented for the purpose of proving identity.
Before trial the appellant gave notice of his intention to
rely upon the defense of alibi. That defense automatically
raises the question of the identity of the perpetrator of
the crime charged.    Under the facts of this case, the use of
S.B.'s testimony did not surprise the defendant, and no harm
came to him by the failure of the instructions to conform to
the purposes listed in the State's motion.
     The other two procedural elements of Just require the
court to give instructions designed to limit the prejudicial
effects of the evidence of prior acts.    At the time of the
introduction of the evidence, the trial court must explain
to the jury the purposes of the evidence and must admonish
the jury to weigh the evidence only for the stated purposes.
The jury which tried Larry Wurtz was given this instruction
just prior to the presentation of S.B.'s testimony.    The
last requirement of Just is that the court must, in its
final charge, instruct the jury in unequivocal terms that
the evidence was received only for the limited purposes
stated earlier, that the defendant is not being tried and
may not be convicted for any offense but that charged, and
that to convict for other offenses would result in unjust
double punishment.    This very instruction was presented
below.
     We find compliance with the substantive and procedural
safeguards of Just.     The District Court did not err by admitting
the testimony of S.B.
Issue No. 5:    Admissibility of testimony of Addison Clark
     Officer Clark became involved in the investigation of
the K.S. incident five days after the commission of the
offense.    He testified that K.S. had given the police a
license number, that a license plate check had been run on
the vehicle, and that the vehicle was registered to Larry
Wurtz.     The defendant objected that no foundation had been
laid to establish that Clark had personally made the license
check and that the testimony was hearsay.    We agree that the
testimony lacked foundation and amounted to hearsay.    The
State should have introduced a certified copy of the registration
record of the Department of Motor Vehicles.     "A witness may

not testify as to a matter unless evidence is introduced
sufficient to support a finding that he has personal knowledge
of the matter."    Rule 602, M.R.Evid.   Clark's conclusory
statement that the license number was the license number of
Wurtz' car should not have been accepted without substantiation.
Nevertheless, we do not find this error to be grounds for
reversal.    Appellant does not contend that the license
number was that of a vehicle other than his own.    Also, the
evidence of ownership of the vehicle was but a small part of
the case against Wurtz.    The admission of Clark's testimony
did not affect Wurtz' substantial rights and the error shall
be disregarded.    Section 46-20-702, MCA.
     The judgment is affirmed.



We Concur:



       Qbief Justice




              Justices
Mr. Justice Frank B. Morrison, Jr., dissenting:

        I respectfully dissent from the majority opinion.
        Section 45-5-203(1)(c), MCA, is quoted in the majority
opinion.    That statute prohibits a communication, in the
form of a threat to commit any criminal offense, when that
communication is designed to cause another to perform,
or omit performing, an act.    As pointed out in the majority
opinion, the same type of statute was involved in Landry v.
Daley (N.D. Ill. 1968), 280 F.Supp. 938.     In that case the
court held the statute to be unconstitutional due to over-
breadth.    The opinion noted that the effect of the statute
was to make many forms of political protest punishable as
felonies.     The court held that threats to commit offenses
against the public order were not so substantial that the
state could legitimately proscribe the making of such threats.
     Our courts have protected against the potential abuses
inherent in legislation similar to Montana's intimidation
statute.    The majority opinion accurately quotes from Broadrick
v. Oklahoma (1973), 413 U.S. 601, 611, 93 S.Ct. 2908, 37
L.Ed.2d 830, 839, wherein the United States Supreme Court
said:
    "It has long been recognized that the First
    Amendment needs breathing space and that statutes
    attempting to restrict or burden the exercise of
    First Amendment rights must be narrowly drawn and
    represent a considered legislative judgment that
    a particular mode of expression has to give way
    to other compelling needs of society. .     ..
    Litigants, therefore, are permitted to challenge
    a statute not because their own rights of free
    expression are violated, but because of a judicial
    prediction or assumption that the statute's very
    existence may cause others not before the court to
    refrain from constitutionally protected speech or
    expression   . .   ."
     The majority attempts to distinguish the Wurtz case
from deeply rooted and significant constitutional principles
on the basis that Montana's intimidation statute intends to
govern conduct and not speech.   The majority opinion states:
"The activities which are encompassed by part 'c' of the
Montana intimidation statute--the commission of any criminal
offense--are almost exclusively 'conduct.'"   However, the
statute in issue provides:   "A person commits the offense of
intimidation when, with the purpose to cause another to
perform or omit the performance of any act, he communicates
to another - threat to
7
           a             ...   (c) commit any criminal offense."
     The clearly stated purpose of the statute is to prohibit
communications.   The statute clearly impairs verbal expression.
The statute has nothing to do with conduct except that some
physical gestures may be deemed communication.
     The majority opinion states:   "The decision to apply
felony punishments to seemingly harmless conduct rests with
the legislature."   This startling statement shreds the Con-
stitution, abdicates judicial responsibility, and creates an
Imperial legislature.
     Montana's intimidation statute is, in my judgment,
unconstitutional because:    (1) First Amendment rights are
chilled.   (2) The statute makes insubstantial evil punishable
as a felony.
     I would reverse and remand with directions to dismiss.
Mr. Justice Daniel J. Shea dissenting:

     I agree with Justice Morrison that the statute is
unconstitutional on its face and thus the conviction must
be reversed and the case dismissed.   But my dissent does
not stop there.   Due to the pressures of writing other dissents,
and the time pressures of handing down opinions, I do not
have time to writea full dissent on the issues as I would like.
I therefore briefly express my views on the other issues.
    Although a conclusion that the statute is unconstitutional
on its face could take care of the problem, I believe also
that the charge as filed, is unconstitutional as applied.     I
believe also that the prosecution is guilty of gross overkill
in filing these charges against defendant.   During the hearing
on oral arguments, the prosecution contended that intimidation
was the only crime that could be charged.    But during questioning
from the bench, the prosecution admitted that defendant's
conduct fell within the ambit of a misdemeanor assault charge.
I believe that misdemeanor assault was the appropriate charge,
and that the decision to charge defendant with intimidation
so to subject him to a 10 year prison sentence, was an example
of vindictiveness at its worst.   Nor can I accept the fact
that defendant was sentenced to the maximum 10 years in prison
for this conviction.   It demonstrates a vindictiveness on the
part of the sentencing judge.   Although a defendant's background

should certainly be considered for sentencing purposes, there
must also be a reasonable relationship between the crime committed
and the sentence given.   Here there is no reasonable relationship
at all.
     In addition, the crime of intimidation was not proved.
It cannot be disputed that the defendant frightened the woman
by his words and by his actions--but this fright cannot be
translated into the crime of intimidation.    His words and
acts certainly constituted misdemeanor assault, but to say
that he is guilty of intimidation is to use the statute
in a situation for which it was never designed.
     Further, it was error to the extreme for the trial court
to admit other crime evidence through the testimony of the
woman whom defendant had assaulted near the high school.      Not
only were the elements for admissibility not complied with, the
court failed miserably in not determining that the inherent
prejudicial effect of this testimony would outweigh the
probative value of this witness' testimony.    I have no doubt

that this witness' testimony sealed the defendant's fate
before the jury.   Once the jury heard what the defendant had
done on a previous occasion, no matter what the charge was,
a jury would be out to convict--and convict it did.     It is
clear to me that the trial courts are paying only lip-service
to the balancing test before admitting such evidence.    Rather,
they are simply concluding that if the evidence will help convict
a defendant it should be admitted.
