No. 13769

IN THE SUPREME COURT OF THE STATE OF MONTANA

1977 THE STATE OF MONTANA,

Plaintiff and Respondent, DIONISIO WILLIAMS,

Defendant and Appellant. Appeal from: District Court of the Thirteenth Judicial

District,

Honorable Charles Luedke, Judge presiding. Counsel of Record:

For Appellant:

John L. Adams argued, Billings, Montana For Respondent:

Hon. Mike Greely, Attorney General, Helena, Montana

J. Mayo Ashley argued, Assistant Attorney General,

argued, Helena, Montana

Harold Hanser, County Attorney, Billings, Montana

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Submitted: October 4, 1977

Decided : Filed: -

L,.* - 7 2 7 M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion of t h e Court .

Defendant Dionisio Williams was charged by a two count Information f i l e d October 25, 1976, with t h e crimes of c a r r y i n g a concealed weapon and i n t i m i d a t i o n , both f e l o n i e s . A jury t r i a l was h e l d i n t h e d i s t r i c t c o u r t , Yellowstone County, on January 11, 1977. A t t h e c l o s e of t r i a l , t h e jury returned a v e r d i c t a c q u i t t i n g defendant of t h e crime of c a r r y i n g a con- cealed weapon, b u t convicting him of the crime of i n t i m i d a t i o n . Defendant was subsequently sentenced t o serve f i v e years i n t h e s t a t e p e n i t e n t i a r y and has been incarcerated since early March 1977. Defendant appeals the conviction and t h e d e n i a l of h i s motion f o r a m i s w i a l made a t r t h e c l o s e of t h e s t a t e ' s case.

The f a c t s introduced by t h e s t a t e through testimony a t t h e t r i a l were, i n c e r t a i n e s s e n t i a l r e s p e c t s , a t variance with those o f f e r e d by defendant i n h i s t r i a l testimony.

The p r i n c i p a l witness f o r the s t a t e was the complaining w i t n e s s , Joe Thomas. Thomas t e s t i f i e d , over o b j e c t i o n , t h a t t h r e e weeks p r i o r t o October 19, 1976, t h e d a t e of t h e a l l e g e d crimes, he purchased $10 worth of t h e drug "speed" from de- fendant. The purchase was made "on c r e d i t " . Defendant denied t h e s a l e of t h e drug, and s t a t e d he had, i n f a c t , merely "loaned" $10 t o Thomas.

On October 1 9 defendant saw Thomzs a t a B i l l i n g s b a r and demanded payment. Thomas was unable t o pay. L a t e r t h a t day Thomas, together with h i s g i r l f r i e n d and two o t h e r s , were stopped f o r gas a t a s e l f - s e r v i c e gas s t a t i o n . Defendant a r r i v e d a t t h e s t a t i o n i n a c a r belonging t o and driven by h i s f r i e n d , Raymond Best. Defendant got out of t h e c a r and approached Thomas, again demanding payment of t h e $10. Thomas t e s t i f i e d t h a t upon h i s explaining he could n o t g e t t h e $10, defendant opened h i s c o a t , exposing what appeared t o Thomas t o be t h e b u t t of a revolver and "said he was going t o drop me" i f pay- ment was n o t then made. Defendant, however, denied having a p i s t o l on h i s person a t t h e time, o r t h a t he threatened Thomas. I n any e v e n t , Thomas obtained $10 from h i s g i r l f r i e n d and immediately gave i t t o defendant.

A t the c l o s e of t h e s t a t e ' s c a s e , defendant o r a l l y moved f o r a m i s t r i a l on t h e ground t h e c o u r t e r r e d i n permitting testimony concerning t h e drug t r a n s a c t i o n between defendant and Thomas. Defendant a l s o moved t o dismiss t h e i n t i m i d a t i o n charge on t h e grounds of i n s u f f i c i e n c y of evidence o r , a l t e r - natively, for a direct verdict. A l l motions were denied.

Defendant bases h i s appeal on two grounds:

1. Evidence of t h e a l l e g e d drug t r a n s a c t i o n was erron- eously permitted by the d i s t r i c t c o u r t .

2. The evidence was i n s u f f i c i e n t t o support t h e conviction of t h e crime of i n t i m i d a t i o n .

Defendant contends t h e evidence p e r t a i n i n g t o t h e a l l e g e d drug t r a n s a c t i o n was i r r e l e v a n t and immaterial and should have been excluded a s being highly p r e j u d i c i a l . He maintained t h e evidence had no probative value and operated t o place defendant i n t h e p o s i t i o n i n t h e eyes of t h e j u r o r s a s a "pusher" who would by inference possess p r o p e n s i t i e s f o r v i o l e n t c r i m i n a l behavior. F u r t h e r , t h e evidence had minimal o r no value i n e s t a b l i s h i n g t h e elements of t h e crime of i n t i m i d a t i o n , and should have been excluded, o r a m i s t r i a l granted.

A fundamental p r i n c i p a l , a p p l i c a b l e t o every c r i m i n a l proceeding, i s t h a t t h e evidence must be r e l e v a n t t o t h e f a c t s i n i s s u e a t t h e t r i a l and must l o g i c a l l y tend t o prove o r d i s - prove such f a c t s . Evidence of c o l l a t e r a l f a c t s which f a i l s t o a f f o r d any reasonable presumption o r inference a s t o a p r i n c i p a l f a c t o r matter i n d i s p u t e , o r evidence too remote, i s i r r e l e v a n t and inadmissible. S t a t e v. Sanders, 158 Mont. 113, 489 P.2d 371 (1971).

I n Sanders, defendant was charged with t h r e e counts of assault. During t h e course of t r i a l testimony was presented t o t h e j u r y which, among o t h e r t h i n g s , i n d i c a ted defendant previously threatened a p o l i c e o f f i c e r upon r e c e i v i n g a speeding c i t a t i o n , wrongfully f a i l e d t o pay wages due an employee, made improper use of c r e d i t c a r d s , and p o s s i b l y b u r g l a r i z e d h i s own business. This Court, i n applying t h e above mentioned r u l e , concluded :

"* * * The a d m i s s i b i l i t y of such c o l l a t e r a l ,

i r r e l e v a n t , and p r e j u d i c i a l evidence i n a c r i m i n a l

proceeding c o n s t i t u t e s r e v e r s i b l e e r r o r." 158 Mont . 118.

Here, admission of evidence of the underlying reason f o r t h e $10 d e b t , t h e a l l e g e d drug s a l e , was such a s t o have made an impression on t h e jury and was highly p r e j u d i c i a l t o defendant. Given t h e obvious c o l l a t e r a l n a t u r e of such e v i - dence and t h e prejudice engendered thereby, i t s admission over proper o b j e c t i o n was e r r o r . Defendant's motion f o r a m i s t r i a l should have been granted.

I n view of t h e Court's f i n d i n g on defendant's f i r s t i s s u e , i t i s unnecessary t o d i s c u s s t h e second i s s u e .

Accordingly, the conviction i s reversed. I t i s ordered that defendant be released from confinement a t the Montana s t a t e prison. The case i s dismissed. W Concur: e

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