*1 STATE OF MONTANA, Appellee, Plaintiff and v.
MATTHEW JOHN BLAZ,
Appellant.
Defendant
No. DA 14-0807.
Argued May
2017.
2,May
Submitted on Briefs
2017.
July
Decided
For C. Montana Wellenstein, Attorney (argued), Micheál S. Assistant General Helena; Joyce, County Attorney, Cox, Eileen Silver Bow Samm Deputy County Attorneys, Clague, Michael Butte. Opinion
JUSTICE RICE delivered the of the Court. (Blaz) appeals judgment Matthew John Blaz entered Court, County, convicting him Second Judicial District Silver Bow following Deliberate Homicide. We address the issues: *2 106 byadmitting
1.Did the District Court abuse its discretion evidence 404(b)? prior about the conviction under M. R. Evid by issuing nonconforming 2. Did the District Court err written judgment days that omitted credit time served? for part, part, entry in in We affirm reverse and remand for of an judgment. amended AND
FACTUAL PROCEDURAL BACKGROUND August 16, 2013, daughter, Matti, On Blaz’s infant died after being day. Blaz’s care for the Matti was born June via section, approximately days cesarean and was old at the time of her Kemp, Deputy Examiner, death. Dr. Walter State Medical determined Matti’s cause of death to be craniocerebral and cervical trauma. Matti’s (1) autopsy neck, revealed: blunt force trauma to her head and (2) primarily side;1 on the left abrasions on the left side of her chin and (3) right chest; on the side of the base of her neck near her injury trial, Kemp evidence of an older on one of her ribs. At Dr. likely very strong, testified Matti died as the result of “a forceful against object.” questioning prosecutor, slam some broad Under Kemp testified as follows:
Q. you [Matti’s] And how about as to the manner of death? Do opinion? have an
A. Yes.
Q. And what is the manner of the death?
A. Homicide.
Q. you And what do base that on? [Matti’s] IA. believe that the cause of death was an intentional person and harmful act caused another that resulted her death.
Continuing, Kemp opined drop that a fall or a could not have caused injuries autopsy. he found at He stated:
Q. just clear, upon skull, So so we’re based the fracture to her brain, damage eyes, tear to her extensive to her and the tears autopsy report Matti’s stated: significant autopsy findings subgaleal hemorrhage The in this death are the site), underlying parietal (indicating impact left skull fracture an hemorrhage hemorrhage, bilateral thin subdural and bilateral subarachnoid ...), (underlying the left frontal lobe laceration the skull fracture the bilateral hemorrhages, involving multiple layers diffuse and extensive retinal and with retinoschisis, apparent hemorrhages within the cervical dorsal root ganglia adjacent nerves. *3 neck, you in her believe the manner of death this case is homicide!?]
A. Yes.
Q. way simple And there’s no that this could have come from a fall[?] simple fall,
IA. do not believe this came from a no. July 10, 2013, Blaz, Matti, Jennifer, mother, On Matti’s were time, in in involved an altercation their home. At the Matti was about days old, recovering and Jennifer was from her cesarean section and subsequent surgical Having a infection of the site. returned home from playing softball, and, holding Matti, began Blaz was intoxicated while “dozing him, stating going off.” Jennifer took Matti from she was to change preparing and feed Matti. While Jennifer was the kitchen holding her, up them, grabbed Matti’s bottle and Blaz came behind hair, her, holding Matti, Jennifer and threw while she was still banging against to the floor. He then started Jennifer’s head the floor. By regain feet, the time Jennifer was able to her Blaz had taken Matti. During assault, sister, K.Y.,2 Matti’s older and K.Y.’s friend retreated to the basement of the house. When K.Y. heard a slam to the floor, yelling, “stop it,” she and her friend started to which Blaz retorted, up coming I’m “tell them to shut down there.” K.Y. and her incident, friend hid under a bed. Out of this Blaz was with and (PFMA). pled guilty Family to Partner or Member Assault He received suspended a six month sentence and was ordered to have no contact with Jennifer. despite Blaz returned to live the home the No Contact Order. morning August 16, 2013, stayed
On the Blaz home from work with Accompanied by K.Y., Matti and K.Y. Matti and Blaz took Jennifer to point, appeared work between 8:00 and 8:30 a.m. At that Matti to be acting normally. returning home, fine and was After Blaz watched Matti, played in television with while K.Y. the basement with a neighbor girl. approximately a.m., stepped At 10:00 Blaz out of the quiet dog lying residence to and talk to the mailman. Matti was on television, a blanket on the floor front of the and Blaz indicated that vantage point he could see her from his outside the house. While Blaz talking, neighbor boy, girl and the mailman were brother of the playing K.Y., girls inside with entered the house to see what the were doing. Testimony point diverged. about what occurred after this According Blaz, neighbor to he looked the house and saw the biological daughter stepdaughter. K.Y. is Jennifer’s and Blaz’s *4 108
boy holding scream, house, Matti. He then heard a loud entered the screaming blanket, neighbor boy and saw Matti on the while the happened boy hovered over her. Blaz asked what ran picked up yelled downstairs. Blaz Matti and tried to calm her. He happened, girls downstairs and asked the kids what to which the replied they anything. boy that had not done The was the house for time, a short then he left. According neighbor boy, crying to the he heard Matti inside when
¶7 Matti, he arrived at the house. He testified that he had tickled but did pick up. that, downstairs, not her He confirmed when he was Blaz had any picked up if asked the children of them had touched or Matti. The neighbor boy girls testified that he went downstairs to see what the doing, got bored, shortly were and left thereafter. approximately a.m., At 11:00 Blaz called Jennifer at work to plans. During conversation,
discuss lunch Blaz did not mention anything happened during morning any had to Matti wellbeing. noon, concerns about Matti’s Around Blaz took a lunch to Jennifer, leaving neighbor girl. left, Matti with K.Y. and the When Blaz sleeping, slept Matti was and she for most of the afternoon. At approximately p.m., pick up 4:00 Blaz took Matti and K.Y. to Jennifer work, group way, from after which the drove to Walmart. On the Blaz neighbor boy might dropped mentioned to Jennifer have they Matti. Jennifer said she would check Matti when arrived at and, time, ashen, Walmart at that she observed Matti’s skin was her breathing unusual, bulging eyes. Acting urgently, was and she had they hospital, Jennifer directed take Matti to the where she died. trial, being At Blaz asserted Matti’s death was the result of dropped by neighbor boy. sought The State admission of evidence July charge against pursuant PFMA related to the Blaz to M. R. Evid. 404(b). argued The State was relevant and rebutted Blaz’s motive, opportunity, defense because it demonstrated and the absence of accident or mistake. The District Court admitted the over objection. appeals. Blaz’s Blaz
STANDARD OF REVIEW
District
courts have broad discretion
to determine
admissibility
Daffin,
76, 12,
MT
of evidence. State v.
2017
¶
(citing
Madplume,
40,
19,
MT
109 evidentiary ruling To the extent an is based on a district court’s interpretation Evidence, of the Montana Rules of our review is de novo. 19). Daffin, (citing Madplume, 12¶ ¶
DISCUSSION
by admitting
1. Did the District Court abuse its discretion
evidence
404(b)?
prior PFMA
about the
conviction under M. R. Evid.
404(b) provides
crimes,
“[elvidence
M. R. Evid.
of other
wrongs,
prove
person in
or acts is not admissible to
the character of a
conformity
order to show action
therewith.” The Rule does not bar
evidence,
prohibits
“theory
admissibility”—using
but rather
of
wrongs
prove
subjective
evidence of other crimes or
to
the defendant’s
conformity
“in
character
order to show conduct
with that character
particular
Eighteen
on a
occasion.” State v. Dist. Court
Judicial
of
Dist.,
263,
47,
325,
[hereinafter
MT
358 Mont.
A. Motive
extensively argued,
Motive was
both to the District Court and to
404(b).
Court,
admitting
this
as a basis for
under Rule
The
“prior
probative
[was]
District Court stated that
act
of Blaz’s
‘may
many
purposes,
including
“Other-acts evidence
be admissible
for
other
”
404(b).’
Stout,
97,
specifically
those
listed in Rule
State v.
2010 MT
(citation
added).
(Nelson, J.,
omitted;
dissenting)
emphasis
Dictionary, “[sjomething... motive is that leads one to act.” Black’s Law 2014). Dictionary (Bryan Garnered., A. 10 ed. But Black’s further “ ]t,|he unfortunately ambiguous. notes that term “motive” is That feeling internally urges pushes person which or to do or refrain from doing emotion, doing an act is an and is of course evidential toward his ” doing Dictionary, supra, (quoting or not the act.’ Black’s Law at 1172 Wigmore, A John H. Students’ Textbook the Law Evidence 76 “[ejvidence (1935)). We have stated that is admissible to show motive separate explained by motive,” Daffin, when acts can be the same 19¶ (citing Crider, 139, 25, MT State v. 328 P.3d 612), explained that, and further cause, uncharged
the motive is acts are effects', is, explainable both acts are as a result of the same prosecutor uncharged motive. The uses the act to show the motive, strengthens existence of the and the motive in turn identity perpetrator as the inference of defendant’s charged act. (footnote added).
Salvagni, omitted; emphasis 59¶ During argument, explained oral the State its motive was upon “general hostility,” based Blaz’s and that the tended to generally feelings show Blaz’s hostile toward Jennifer and Matti. However, explained by to conclude that the acts at issue here “can be motive,” Daffin, 19, effects,” Salvagni, the same or that both acts “are general hostility complete disregard of the “causes” of for *7 others, more, very broadly without would define motive and cast a wide 404(b), potentially encroaching net indeed for use of motive under Rule upon impermissible propensity use of motive as evidence. We something necessary conclude that further is to demonstrate a cause relationship. presented and effect Such additional evidence was here. Identity B. and Pattern 404(b), identity pattern overlap Under Rule and often because
unique patterns identity. behavior can be used to establish As we noted Daffin, idiosyncratic evidence of “distinctive or methods” can signatures” pattern, illustrate “criminal and demonstrate a which can identify specific Daffin, In be used to a individual. 17-18. some ¶¶ instances, may identify by the evidence be “offered to the defendant showing uncharged operandi that she committed the act with a modus strikingly Salvagni, similar to that of the act.” this case, linking pattern identity motive evidence with and evidence picture signature.” creates a clear of Blaz’s “criminal alleged Facets of Blaz’s were similar to facets of the crime First, just here. Matti was a victim of the earlier domestic violence as she was of the intentional acts that caused her death. Blaz’s earlier pattern resolving family action illustrates a issues with violence and disregard safety wellbeing. demonstrates his careless for Matti’s and Second, importantly, similarity and most is the between the method of upon during PFMA, Blaz’s assault Jennifer and the mechanics of injuries by that, during sustained Matti. Jennifer testified PFMA, grabbed by hair, floor, Blaz her her threw her to the and banging against Kemp started her head the floor. Dr. testified that by very Matti suffered craniocerebral and cervical trauma caused “a strong, against object.” injuries forceful slam some broad These two mechanics, have similar both involve a cranial assault inflicted impact against grabbed by a broad surface: Jennifer was the head and floor, trauma, slammed into the while Matti sustained severe head including fracture, bruising a skull on her neck. These were violent and, case, Further, acts directed to the head Matti’s caused death. causing both the and the violence Matti’s death occurred privacy home, sight presence of the Blaz out of the of others who family could intervene. Jennifer and Matti were assaulted when the game. Additionally, returned home after a softball Matti sustained injuries home, in the same while under Blaz’s care. Both victims were family whole, suggested female members. Taken as a these facts (1) pattern reacting family problems, specifically of Blaz to with female (2) family members, violence; attacking victims; with the heads of his (3) (4) striking against surface; his victims’ heads a broad or flat *8 attacking privacy family while the home. These facts were pattern behavior, permissible purpose evidence of a which is a 404(b). admissible under Rule
C. Absence of Mistake or Accident argues PFMA Blaz the was inadmissible to show an absence of any mistake or accident because Blaz never said he had part—accidental causing argues, or otherwise—in Matti’s death. He premise “[flundamental to the that other acts be admitted to show accident,’ ‘absence of mistake or is that the defendant claims he made (Emphasis original.) argues a mistake.” The State evidence of the “strengthens [Blaz] PFMA the inference that killed Matti and rebuts theory neighbor boy] by accidently dropping [the his killed Matti living above, her on the room floor.” As noted Blaz’s defense was neighbor boy dropped Matti, causing the her death. The State sought theory. PFMA to introduce evidence of the to rebut this defense case, Salvagni, purposes pattern this much like the identity closely are related to the absence of mistake or accident. explained, As we have here and the violence toward Matti pattern have similar elements which form a relevant and serve to by neighbor boy. rebut Blaz’s defense that Matti was killed The largely heavily State’s case was circumstantial and relied on the testimony Kemp. However, permissibly of Dr. illustrated a pattern by linking of conduct Blaz his documented actions and the manner ofMatti’s death. The District Court did not abuse its discretion admitting the evidence.
M. R. Evid. 403
admissible, except
provided
“All relevant evidence is
as otherwise
by constitution, statute,
rules,
applicable in
these
or other rules
courts of this state.” M. R. Evid. 402. M. R. Evid. 403 allows relevant
probative
substantially
“if
evidence to be excluded
its
value is
outweighed by
danger
prejudice,
issues,
of unfair
confusion of the
misleading
jury,
delay,
or
or
considerations of undue
waste of
time,
presentation
or needless
of cumulative evidence.” Probative
usually prejudicial,
being unfairly
evidence is
but rises to the level of
prejudicial only
jury’s hostility
sympathy
“if it arouses the
or
for one
regard
probative value, if
side without
to its
it confuses or misleads the
fact,
unduly
if
trier of
it
distracts from the main issues.” State v.
Hicks,
165,
MT
if
113
may
prejudice by admitting
court
minimize unfair
evidence for a
particular purpose
limiting
jury may put
the uses to which the
Pulst,
184, 19,
494,
MT
evidence.” State v.
2015
351 P.3d
(citations omitted). Finally,
limiting
generally
“[a]
687
instruction
any
prejudice.”
Hantz,
311,
44,
MT
cures
unfair
State v.
49).
(citing Salvagni,
Mont.
The Defendant is not tried for that other may any or act. He not be convicted for other offense than that charged jury any in this case. For the to convict the Defendant of may unjust in other offense than that this case result punishment double of the defendant. successfully any prejudice might
This instruction cured unfair admitted, have occurred when evidence of the was District Court did not abuse its discretion. by issuing nonconforming 2. Did the District Court err written
judgment days that omitted credit time served? for days, The State concedes that Blaz is entitled to credit for 318 pending granted during which he served trial. The credit was the oral pronouncement sentence, of his but was not credited the written judgment. entry We remand this matter to the District Court for of an judgment granting days amended Blaz credit for 318 of time served. part, part, entry Affirmed reversed and remanded for of an judgment. amended McGRATH, WHEAT,
CHIEF JUSTICE JUSTICES BAKER and SHEA concur. *10 McKINNON, dissenting.
JUSTICE my view, great injustice the Court’s decision does to the 404(b) purposes opens impermissible of M. R. Evid. the door to propensity previously evidence that had been closed. Because there is did, a substantial risk that Blaz was convicted not for what he but for having past, respectfully PFMA in I committed a the dissent. provided by constitution, statute, rule, Unless otherwise or all relevant evidence is admissible. M. R. Evid. 402. Relevant evidence having any tendency any means “evidence to make the existence of fact consequence probable that is of to the determination of the action more probable or less than it would be without the evidence.” M. R. Evid. maybe excluded, however, probative “if 401. Even relevant evidence its substantially outweighed by danger prejudice value is the of unfair ....” admissibility A M. R. Evid. 403. further limitation on the rule of is 404(b), provides: found M. R. Evid. which crimes, wrongs, Evidence of other or acts is not admissible to prove person in the character of a order to show action conformity may, however, therewith. It be admissible for other purposes, proof motive, opportunity, intent, such as of preparation, plan, knowledge, identity, or absence of mistake or accident. 404(b) propensity Rule does not forbid the admission of evidence 404(b) propensity evidence; instead,
or constitute a bar to Rule prohibits theory admissibility a which allows an ultimate inference premised upon to be made when it is an intermediate inference of the personal, subjective prosecutor If defendant’s character. “can arrive through at an ultimate inference of conduct a different intermediate inference, prohibition inapplicable.” Imwinkelreid, is Edward J. (Rev. 2009). (“When Uncharged 4:1, Misconduct Evidence 5-6 ed. § prosecutor develops theory logical relevance without an character, theory intermediate inference as to the defendant’s dangers. prosecutor develop If moots one of the can an alternative 404(b) reference, intermediate Rule will not bar the admission of misconduct.”). uncharged admissibility depends When the on personal, subjective an intermediate inference of a defendant’s traits, high jury character there is a risk of misdecision and that the they repulsive, immoral, will convict because find the defendant repugnant. together, require following analysis: Read these rules first, materially relevant; second, logical is the evidence is the independent inference, prohibited by relevance of the intermediate 404(b), conformity character; Rule that the defendant acted with bad and, third, probative substantially does the value of the evidence
outweigh danger prejudice.1 of unfair typical prosecution “[t]he We have stated that case is reducible to (1) (i.e. person three elements: committed the actus reus forbidden act) (2) alleged information; person possessed in the indictment or that (3) requisite (i.e., mind), and; mens rea criminal intent or state of (citations omitted). person defendant).”Stewart, was the 64¶ Here, question by there was no that Matti was killed nonaccidental prosecution through trauma. The demonstrated its forensic evidence Kemp’s testimony through and Dr. that Matti’s death occurred human agency, agree I which was intentional. with the Court’s assessment largely heavily that this “case was circumstantial and relied on the testimony Kemp.” Opinion, only of Dr. 19. The element that therefore ¶ prove person remained for the State to concerned whether Blaz was the is, identity who committed the crime: that the element of remained disputed. sought PFMA The State admission of the evidence based on motive, opportunity, and absence of accident or mistake. The District Court denied Blaz’s motion limine on the basis that evidence of the prior “probative feeling PFMA was “reflective” and of Blaz’ toward living [Mom] [Mom’s] and toward children the household.” This concludes, through theory, Court still another was idiosyncratic admissible as evidence of “distinctive or methods” and signature” specifically illustrates a “criminal which can be used to identify Opinion However, regardless Blaz. of which admissibility upon—that State, Court, relied offered the District premised upon sufficiently or this Court—none are relevance that is independent inference, prohibited by 404(b), of the intermediate Rule charged that Blaz committed the crime because of the likelihood that conformity underlying he acted with his conduct his PFMA. brevity, only analysis I interest of will address the Court’s flawed (1) pursuant the evidence was admissible to: Blaz’s “criminal (2) signature,” and absence of mistake or accident. unique A. The does not demonstrate a and distinctive
methodology permitting
identity.
an
Blaz’s
inference of
may
It is well settled that the State
introduce evidence of
prove
identity
perpetrator
bad acts to
the defendant’s
as
prosecution,
prejudicial
In a criminal
most of the evidence will be
to the
Stewart,
317,
68,
503,
(citing
defendant. State v.
2012 MT
367 Mont.
prosecutions
offenses,
for sexual
that evidence of a defendant’s
(method
uncharged
operandi
commission of an
crime with a modus
operation) strikingly
charged
permissible
similar to that of the
crime is
404(b).
identity
pursuant
evidence
to Rule
To invoke the modus
“(1)
operandi theory, the State must establish that
both crimes were
(2)
strikingly
methodology;
committed with the ‘same’ or
similar
methodology
unique
is so
that both crimes can be attributed to ‘one’
Imwinkelreid, supra
3:10,
explained in
criminal.”
62. We
State v.
§
Kordonowy,
44, 49,
854,
(1991),
“[t]his
823 P.2d
857
identity exception
prove
by
is often used to
other crimes
the accused so
nearly
identical method as to earmark them as the handiwork of the
Therefore,
accused.”
when evidence of other crimes or acts are
prove identity,
introduced to
the other crime or act must be
“sufficiently
person
distinctive to warrant an inference that the
who
committed the crime also committed the offense at issue.” State v.
Sweeney,
74, 31, 299
111,
Significantly,
MT
2000
Mont.
Luna,
Thus,
methodologies
distinct such that “the modus must the defendant’s personal identity.” Imwinkelreid, supra 3:11, criminal § Here, the Court concludes the and Matti’s death evidenced “pattern theory admissibility of behavior” sufficient to establish a upon operandi; is, based modus the Court concludes that unique distinctive, PFMA and Matti’s death are so as methodologies, demonstrated their that an inference arises that only similarity in Blaz could have committed them. The Court finds injury, explaining “mechanics” of the that both Mom and Matti injuries resulting impact sustained head from an to a “broad” surface. Opinion, they 17. The Court states were “violent” acts “directed at Opinion, uniqueness in the head ....” 17. The Court finds features of “family that both victims were members” and that the crimes occurred privacy family Opinion, evidence, “in the of the home.” 17. This however, generic many Unfortunately, is and characteristic of crimes. against family unique domestic violence and crimes members are not Indeed, they large or distinctive. include a and diverse class of victims. Furthermore, nothing unique committing there is or distinctive about private, doing “privacy family in in a crime or so of the home.” against persons normally nothing Crimes are “violent” and there is unique generalized assuming about a trauma to the head. Even appropriateness designating of the Court for the State its admissibility, attempt uniqueness in the Court fails its to find only generic in distinction what can be characterized as evidence. nothing inherently unique There is and distinctive about the two acts point only Blaz, except that would to that on both occasions Blaz acted conformity in with bad character. Conversely, distinguishable upon the crimes are based
following: injured attempted in Mom was when Blaz to hold Matti offense, Matti, asleep during first while who remained the entire offense, injured; during was not Blaz was intoxicated the first offense, second; but not the the first offense was directed towards an spouse, Mom, adult and the second offense was directed towards an infant; Blaz, intentionally there was no evidence that either negligently, attempting physically was to hurt Matti the first offense, offense, while the second Matti’s death was the result of an many intentional act. While acts of domestic violence will exhibit a pattern establishing signature” or course of conduct a “criminal defendant, certain, cycles this is not one of those cases. To be 404(b) domestic violence could be relevant the context of Rule Yet, uniqueness, evidence. without evidence of distinctiveness or large class, domestic violence victims are members of a which *14 themselves, necessarily signature” upon of do not establish a “criminal perpetrator. Moreover, adopted specific “[a] while few states have a past violence, by rule to allow evidence of acts of domestic the same against victim, prosecutions defendant the same to be admitted involving worrying purpose domestic violence without about the for the evidence...,” Broun, Montana has not. Kenneth S. McCormick on (7th 2013) (footnote omitted). Today’s Evidence ed. § decision, however, effectively through expedient creates a rule relabeling propensity Blaz’s for domestic violence as a “criminal signature” demonstrating and also “absence of mistake or accident.” See infra. Daffin, charged offenses, the defendant was with 13 sexual
many involving following of them children. The Court found the sufficiently signature:” established Daffin’s “criminal
Here, testimony of the former victims and other witnesses was used to establish Daffin’s methods of victim selection and grooming. signature” Some common elements of Daffin’s “criminal supplying drugs; driving included: his victims with alcohol and his vehicle; “partying” victims; taking victims around his with his “mudding”; and, eventually, assaulting Testimony them them. pattern process about Daffin’s of sexual abuse detailed a “flirting”; started with escalated to sexual conversation and touching sexual; proceeded contact; that bordered on to sexual by telling they complicit in concluded the victims were at fault or abuse, swearing them to silence. (footnotes omitted). Daffin, 18¶ Similarly Madplume, the defendant was with pursuant felony rule,
deliberate homicide to the murder with sexual predicate intercourse without consent as the offense. The Court involving rape affirmed admission of evidence of a different male explained: victim. The Court
Here, uncharged the State used the similar circumstances of the Madplume’s plan. J.B. incident to show Just as he had done with J.B., Madplume accompany him invited Kenmille to and a younger guise drinking cousin to Wild Horse under the partying together. J.B., Madplume Just as he tried to do with plan getting carried out the same Kenmille intoxicated and isolating private Madplume him in Room Four’s hot tub so could argument Madplume’s have sex with him. The State’s about purpose bringing younger along in for cousin each incident did imply prey straight not that all homosexual men on men. Nor did argument predisposed insinuate that homosexual men are to
sexually assaulting straight Rather, permissibly men. the State uncharged steps Madplume’s in used the similar act to show the plan Franks, to have sex with Kenmille at Wild Horse. Unlike prosecution imply where the used the other acts evidence to propensity molestation, logical defendant had a for child chain connecting the J.B. incident to Kenmille’s death did not involve an impermissible propensity character or inference.
Madplume, 29. ¶ contrast, Sweeney alleged In in we found that sexual “necessarily in
misconduct on both occasions was not distinctive Sweeney, “Sweeney allegedly context of sexual assaults.” 34. ¶ performed acts, involving victims, different of a nature unfortunately give many Sweeney, rise to sexual assault cases.” 34. ¶ “[tjhere nothing Sweeney’s alleged [was] We concluded that conduct sufficiently that was distinctive to warrant an inference that since he prior committed the sexual assault he must have committed the sexual charged].” Sweeney, having [for assault which he was 34. While some ¶ similarities, Sweeny we described the evidence as follows: case, similarity age gender
In this there is some between the of the victim and the sexual behavior involved the 1988-89 assault,[sic] however, sexual assault and the 1996 sexual there are also a number of differences. The sexual behavior involved Sweeney getting top five-year-old 1988-89 included on of his stepdaughter, licking genitalia, placing her her hands on his penis. regard assault, Sweeney’s nine-year-old With to the 1996 Sweeney genitalia niece testified that had licked her and had on pants another occasion unbuttoned her shirt and and touched her addition, Sweeney's In chest. niece testified that on the occasion clothing, Sweeney put where he had unbuttoned her had his hand stop screaming over her mouth to her from and told her to shut up.
Sweeney, 34. only examples The aforementioned authorities are a few of our
prior
analysis
operandi
careful
of modus
evidence to demonstrate
identity
Salvagni,
60; Kordonowy,
of the defendant. See also
854; Aakre,
allowed,
Mont. at
absence accident. mistakenly The Court also finds the evidence could be Here, admitted to demonstrate the absence of mistake or accident. pattern by Court concludes that the “illustrated a of behavior” Blaz that linked Blaz’s “documented actions and the manner of Matti’s Opinion, improper upon death.” 19. Aside from an reliance ¶ “pattern identity, of behavior” the Court finds to establish the use of evidence to demonstrate absence of mistake or accident relates to the crime; is, actus reus of the whether the crime was accidental or actually Stewart, Here, question, a “forbidden act.” there is no ¶ upon Kemp’s testimony evidence, based Dr. and the forensic that the appropriate crime was not an accident. The use of evidence demonstrating premised upon absence of mistake or accident is increase, objective inference that as the number of incidents probability is, highly unlikely of accident decreases. That it is that the by many same crime would be committed so similar accidental acts. permissible arising The inference from an absence of mistake or 404(b) logic accident allowed Rule is that it defies common sense or many to find coincidence on so occasions. parties dispute The do not that Matti’s death was not an accident.
Significantly, Salvagni, while the trauma to the victim was trauma, likely compression “indicative of non-accidental most due to chest,” though the cause of death was “undetermined” even “no Salvagni, definitive natural cause of death was identified.” 13. The prove circumstantially purposely State intended to that the defendant knowingly by suffocating through caused her child’s death her prior “placed [the sister] incident which the defendant victim’s face up down her crib with a blanket rolled and tied to each side of the placed Salvagni, [the child’s] crib and the blanket on neck.” 65. The Court held that the bad acts evidence was offered to demonstrate accidentally” [the victim] “that did not die and was “relevant to her suggestion [the victim’s] intent and to rebut death was added). Salvagni, (emphasis accidental.” We did not decide whether, particular facts, under the the State had established a non- propensity fact, inference for admission of the evidence. we directed *17 remand, develop
that on the State would have to a more detailed explanation of the incidents and the District Court would have to analysis any objections Salvagni, conduct an on raised. Accordingly, perhaps impeachment while admissible as or rebuttal evidence, Salvagni may does not establish that the State offer 404(b) bad acts evidence under Rule when the non-accidental nature undisputed. of the victim’s death is proceedings, dispute In these there was no that Matti’s death was
¶41 Stewart, non-accidental and the result of a “forbidden act.” 65. The undisputed testimony. actus reus was and established forensic Although, unfolded, may as the trial have been admissible pursuant admissibility theories, to other the District Court erred denying purpose Blaz’s motion limine when the stated for 404(b). admissibility by pursuant the State was to Rule Finally, assuming arguendo, dispute regarding there was a accidental, prior PFMA whether Matti’s death was evidence of the would not have demonstrated a lack of coincidence sufficient to infer unlikely that Matti’s death was to have been an accident or mistake. nature, substantively in Evidence of this admitted the State’s case-in- chief, provide evidentiary would have to a sufficient correlation to allow an inference that Matti’s death could not have been the result of Here, single prior PFMA coincidence. the evidence of a was insufficient Accordingly, any to establish such a correlation and inference. evidence Neighbor Boy supported by caused Matti’s death would have to be admissibility—impeachment, rebuttal, an alternative or some acceptable premise. other
CONCLUSION improperly I would conclude that evidence was 404(b). pursuant Further, I admitted to Rule would conclude that the prejudicial abuse, danger nature of the evidence of domestic jury improper basis, would decide the case on this demonstrates qualitatively probability there was no reasonable the evidence did not contribute to Blaz’s conviction. I would reverse and remand for a new trial. joins
JUSTICE SANDEFUR the dissent.