                                                                                         May 13 2014


                                          DA 13-0306

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2014 MT 129N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

JEREMIAH ALLEN JOHNSON,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DC 12-415
                       Honorable Robert L. Deschamps, III, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Joseph P. Howard, Attorney at Law, Great Falls, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant
                       Attorney General, Helena, Montana

                       Fred Van Valkenburg, Missoula County Attorney, Jennifer Clark, Deputy
                       County Attorney, Missoula, Montana



                                                   Submitted on Briefs: April 16, 2014
                                                              Decided: May 13, 2014


Filed:
                       __________________________________________
                                         Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not serve

as precedent. Its case title, 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     Jeremiah Allen Johnson appeals from his conviction of the offenses of felony

aggravated assault and felony assault with a weapon in the Fourth Judicial District Court,

Missoula County. We affirm.

¶3     Johnson argues on appeal that the District Court abused its discretion by refusing to

excuse a juror for cause, denying his motion for a mistrial, and failing to give a cautionary

instruction about prior acts testimony.

¶4     Johnson was arrested on August 28, 2012, after his former girlfriend, Kelsey

Rowland, called 911 to report that Johnson had hit her in the face while wearing

hard-knuckled motorcycle gloves. He was charged with aggravated assault, assault with a

weapon, criminal trespass to property, and driving with a suspended or revoked license. He

was later charged with violation of an order of protection. He pled guilty to the latter three

charges and proceeded to trial on the charges of aggravated assault and assault with a

weapon.

¶5     During jury selection, defense counsel asked members of the jury if they believed

police officers would be more credible than the defendant. Prospective juror Blevins voiced

his opinion that “against any person I would say a police officer, to me, has a slightly greater



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credibility.” The defense challenged Blevins for cause, and he was excused by the District

Court. Later, prospective juror Grogan said:

         I totally agreed with Mr. Blevins, that potential juror. Now that I’m older and
         out of trouble, with neighbors who are in law enforcement, I give them that
         level of credibility. Not to the detriment of the defendant, because I truly feel
         that a person is innocent until proven guilty.

Defense counsel asked whether the testimony of a police officer would have a higher level of

credibility than testimony by the defendant. Grogan responded, “Higher, no. I would like to

hear the evidence and judge it accordingly.” The defense challenged Grogan for cause. The

District Court asked Grogan, “In the courtroom, do you automatically think that the police

start out with a—they’re a little ahead of the game, just because they’re the police?” Grogan

answered, “I do not think that, Your Honor. Credibility, I give them that level of credibility

because of their station and their training.” The District Court denied the challenge to this

juror.

¶6       At trial, Rowland testified that Johnson “had a GPS tracker thing.” The defense

objected. A bench conference was held, and Rowland did not refer to the “GPS tracker

thing” again. She also testified that Johnson had approached her at work the week before

August 28. The defense objected again. The defense argued that the prior contact, combined

with the reference to a “GPS tracker thing,” created the impression Johnson was stalking

Rowland. Regarding the prior incident, Rowland testified:

         He wanted to talk again about us. And he just—he—I had asked him to please
         go, a couple of times, and he wouldn’t. And I—he finally did end up leaving.
         And as he’s leaving, he was yelling obscenities at me and told me that, “I
         won’t be surprised if you got your ass kicked.”

She said she did not see Johnson again until he showed up at her home on August 28. The

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District Court did not give a cautionary instruction. The defense motion for a mistrial was

denied.

¶7     Johnson claims the District Court erred by denying his challenge for cause to

prospective juror Grogan. This Court reviews the denial of a challenge for cause to

determine whether the trial court abused its discretion. State v. Golie, 2006 MT 91, ¶ 6, 332

Mont. 69, 134 P.3d 95. A juror may be challenged for cause if he or she has “a state of mind

in reference to the case or to either of the parties that would prevent the juror from acting

with entire impartiality and without prejudice to the substantial rights of either party.”

Section 46-16-115(2)(j), MCA. If a juror is able to set aside his or her preconceptions and

follow the law, it is within the discretion of the district court to determine whether that juror

should be excused. State v. Jay, 2013 MT 79, ¶ 20, 369 Mont. 332, 298 P.3d 396. The

district court “has the ability to look into the eyes of the juror in question, and to consider her

responses in the context of the courtroom, and then determine whether serious doubts exist

about the juror’s ability to be impartial.” Jay, ¶ 20 (quoting State v. Robinson, 2008 MT 34,

¶ 13, 341 Mont. 300, 177 P.3d 488, overruled in part on other grounds, State v. Gunderson,

2010 MT 166, ¶ 50, 357 Mont. 142, 237 P.3d 74). The juror’s spontaneous and unprompted

statements are the most meaningful, though the court or the parties may ask open-ended

questions to clarify a juror’s initial statements. State v. Allen, 2010 MT 214, ¶ 26, 357 Mont.

495, 241 P.3d 1045.

¶8     Grogan stated that he agreed with prospective juror Blevins, but went on to say,

unprompted, that he did not believe law enforcement was entitled to heightened credibility to

the detriment of the defendant. On further questioning, Grogan maintained that he did not

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attribute higher credibility to law enforcement and would weigh the evidence fairly. The

District Court was in a position to “look into the eyes” of each juror and determine whether

his ability to be impartial was in doubt. The District Court did not abuse its discretion when

it denied the challenge for cause to prospective juror Grogan.

¶9     Johnson also claims the District Court erred by denying his motion for a mistrial. The

denial of a motion for mistrial is reviewed for abuse of discretion. State v. Moree, 2010 MT

148, ¶ 11, 357 Mont. 24, 235 P.3d 585. A mistrial is appropriate where there is a reasonable

possibility that inadmissible evidence contributed to the conviction. State v. Long, 2005 MT

130, ¶ 24, 327 Mont. 238, 113 P.3d 290. The strength of the evidence against the defendant,

the prejudicial effect of the inadmissible evidence, and whether that prejudice could be cured

by a cautionary instruction are considered when determining whether the inadmissible

evidence could have contributed to the defendant’s conviction. Long, ¶ 24. In this case,

Rowland’s reference to a “GPS tracker thing” was brief, isolated, and vague. The testimony

was not enough to indicate to the jury that Johnson was on probation. The jury could have

drawn a variety of inferences from the testimony, or, given its brief nature, paid it no

attention. The District Court appropriately avoided drawing any extra attention to the

testimony. The District Court did not abuse its discretion by denying Johnson’s motion for a

mistrial.

¶10     Johnson’s final claim of error is that the District Court should have given a

cautionary instruction to the jury regarding Rowland’s testimony that Johnson yelled

obscenities and threatened her the week before August 28. A district court is given broad

discretion when instructing a jury, and we review decisions regarding jury instructions for an

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abuse of that discretion. State v. Bieber, 2007 MT 262, ¶ 22, 339 Mont. 309, 170 P.3d 444.

The District Court ruled before trial that testimony regarding the parties’ prior relationship

was explanatory of the events of August 28 and would be admitted under the transaction

rule. Section 26-1-103, MCA; State v. Berosik, 2009 MT 260, ¶ 46, 352 Mont. 16, 214 P.3d

776. The transaction rule “is most legitimately used to admit uncharged misconduct when

such conduct arises from a continuing series of events.” State v. Guill, 2010 MT 69, ¶ 45,

355 Mont. 490, 228 P.3d 1152. Acts considered part of the same transaction are not

excluded under M. R. Evid. 404(b). Berosik, ¶ 45. Evidence admitted under the transaction

rule need not be accompanied by a cautionary instruction. See Guill, ¶¶ 44-45. Rowland’s

testimony explained a “continuing series of events” in which Johnson tried to contact her to

discuss their relationship, a series which continued when he let himself into her home on

August 28. The evidence was properly admitted as part of the same transaction, and

therefore no cautionary instruction was required. The District Court did not abuse its

discretion by failing to give such an instruction.

¶11    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for memorandum opinions. The issues in this case

are ones of judicial discretion, and there clearly was not an abuse of discretion.

¶12    Affirmed.


                                                     /S/ MIKE McGRATH

We Concur:

/S/ BETH BAKER
/S/ LAURIE McKINNON

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/S/ PATRICIA COTTER
/S/ JIM RICE




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