Convictions upheld in fire death

BillingsGazette.com

December 28, 2000

HELENA (AP) Forcing a brother and sister to stand trial together for killing their stepfather to collect his life insurance was not so unfair that their convictions should be overturned, the Montana Supreme Court decided Thursday.

The unanimous court said Donna Enright of Great Falls and Roy Link of Sun River failed to show how combining their trials into one was so prejudicial that they could not get a fair trial.

The five-judge panel also said it found plenty of evidence to justify the murder and arson convictions and rejected challenges by Enright and Link to decisions made by the trial judge to allow the jury to see certain evidence.

Enright and Link were convicted in May 1999 of murdering their stepfather Leonard Theis, 61, in a Stanford mobile home fire in 1996. The prosecution said the fire was set so the pair could collect on an insurance policy they had bought on Theis life.

Enright was accused of setting the fatal fire, and Link was charged with helping her. The two claimed that either someone else had started the fire or it happened accidentally.

Enright and Link were first convicted in separate trials, but the Supreme Court overturned the verdicts and ordered new trials. District Judge John Warner of Havre decided to consolidate the trials since both defendants were charged in connection with the same crime and the evidence and witnesses would be mostly identical in both cases.

Upon their second convictions, Enright was sentenced to 75 years in prison and Link got a 25-year term.

In their appeal, Enright and Link did not dispute that combining trial would save court time and money, and lessen the inconvenience for witnesses and jurors. They argued that the prejudice created by merging the trials outweighed any judicial benefits.

A single trial invited evidence damaging to one defendant or the other, and excluded evidence that could be beneficial, they said.

The Supreme Court said the pair failed to prove that claim.

Neither Enright nor Link has made any specific or compelling showing that they would be prejudiced by consolidation of their trials, much less that the prejudice would be so great as to prevent a fair trial, Justice Bill Leaphart wrote for the court.

Although consolidation of trials may always involve some prejudice to defendants, we find none in this case that would warrant reversal, he said.

The court disposed of the contention that jurors lacked enough evidence to convict. That same argument was rejected by the justices when they ruled on the first appeals in 1998 and 1999, Leaphart said.

Inmate: Public defender just won't defend her

By Greg Tuttle - BillingsGazette.com

March 13, 2004

A state judge in Dillon has threatened to have Yellowstone County Chief Deputy Public Defender Roberta Drew thrown in jail and fined for her work as a court-appointed attorney there.

District Judge Loren Tucker of Beaverhead County said Drew has failed to properly represent a woman who is trying to appeal her murder conviction.

"It appears that Ms. Drew has willfully neglected and violated her duty to represent her client and has violated an order of this court," Tucker wrote in an order filed March 8.

The judge set a March 25 hearing in Dillon for Drew to appear and explain "why she should not be sanctioned by fine or jail or both or a combination of those and other sanctions for her utter failure to act and for her blatant misrepresentations."

The client, 69-year-old Donna June Enright, is serving a 75-year sentence at the Montana Women's Prison in Billings. She said Drew has come to the prison twice in the past 10 months to speak with her about her case, and each meeting lasted less than hour. Drew hasn't responded to her letters or phone calls, Enright said, and her appeal has been delayed by months or years as a result.

"She's a rock around my neck," Enright said.

Drew could not be reached for comment. In court documents, Drew responded to the concerns about her work on the case by saying she had been distracted by her husband's life-threatening illness and her mother's death.

In February, Drew submitted records in Enright's case that included her mother's obituary from the Oct. 17, 2003, edition of the Montana Standard newspaper in Butte. She also filed six pages of her husband's medical record showing he had complications from knee surgery. The documents also included a "statement of services" that show she logged more than 36 hours on the case between last April and September.

According to records obtained by The Gazette from the Montana Supreme Court Administrative Services Division, Drew was paid $60 an hour for 38.3 hours of work on Enright's case from April to July of last year. She was paid $2,390.19, which included $92 in travel expenses.

Enright's case began in October 1996, when fire swept through a mobile home in Stanford. Enright's stepfather, Leonard Theis, died in the blaze.

Prosecutors charged Enright with deliberate homicide and arson, saying Enright drugged Theis and set the blaze to collect insurance money. A jury convicted her of the charges in July 1997.

Enright appealed the conviction, and in December 1998 the Supreme Court ordered a new trial. The justices said a judge was wrong to allow prosecutors to use evidence of a 1995 fire linked to Enright.

A second jury convicted Enright of the same charges in May 1999. A judge sentenced her to 95 years in prison with 20 years suspended.

Enright said recently she did not set the fire and has been wrongfully convicted.

n April 2002, Enright petitioned for post-conviction relief, the first step in an appeal to the Supreme Court.

Judge John Warner in Judith Basin County reviewed Enright's petition, and on March 31, 2002, he filed an order allowing Enright's case to move forward. The case was later transferred to Tucker in Beaverhead County when Warner was appointed to the Supreme Court.

Enright said she learned that Drew had been appointed to represent her in early May of last year. Drew showed up at the prison and spoke with her for about 12 minutes, Enright said.

"She said she would do the best she could, that she was experienced and that she had won many cases," Enright said.

Enright didn't hear from Drew again until July 28, she said. By that time, Enright said, she had growing concerns about whether Drew was doing any work on her case, and she had written letters to Tucker and others asking for help.

Meanwhile, Tucker gave Drew more time to work on the case by extending deadlines. But by December of last year, the judge said he was concerned about Drew's "lack of action."

"If illness and death have occurred as described, Ms. Drew is entitled to sympathy," Tucker said in an order filed Jan. 21. "However, 71/2 months and four continuances have passed with nothing at all tangible produced for this court to review regarding her efforts on behalf of her client. Ms. Drew's excuses have been advanced only at the last minute. Ms. Drew has exhausted her credibility with this court."

Tucker then ordered Drew to appear in court or by video conference at her own expense in early February. The judge also ordered Drew to "provide corroboration from credible sources of the assertions of the family hardship she has allegedly encountered."

On Feb. 5, Drew appeared before Tucker and submitted the obituary, her husband's medical records and other documents. According to court records, Tucker gave Drew until Feb. 13 to file "substantive documents" in Enright's case.

In the March 8 order, Tucker said Drew had failed to meet the latest deadline or respond to a telephone message left for her on Feb. 19.

Drew was the chief deputy public defender in Yellowstone County for about four years before she was fired from the job in December 2002 on allegations that she lied to a judge and disobeyed her boss. She was reinstated to the job last September and was awarded back pay after a county grievance commission determined she had been wrongfully terminated. She rejoined the public defender office as chief deputy on Jan. 1.

At about the same time as she was fired, Drew filed a complaint with the Montana Human Rights Bureau stating that she was discriminated against when she was passed over for promotion. A hearing into that complaint began in late February and is scheduled to resume next month. Drew is seeking $75,000 from the county for emotional harm and $42,000 in back pay and lost benefits.

Drew also filed a federal lawsuit against the county stating that her civil rights were violated. That lawsuit is pending.

In another legal matter, Drew filed a complaint in District Court in February stating that The Gazette caused her emotional distress by publishing information obtained in public records. The complaint, which names the newspaper, a reporter and the newspaper's attorney, was served on the defendants but was not officially filed because questions arose about Drew's status in a related case filed against the newspaper and Drew by Yellowstone County. That issue has yet to be resolved, and Drew has not filed the complaint as a separate lawsuit.

Supreme Court of Montana

State v. Enright

Jon A. Oldenburg;  (for Enright), Craig R. Buehler, Attorney at Law, Lewistown, MT, (for Link), For Appellants.Hon. Joseph P. Mazurek, Attorney General;  John Paulson, Assistant Attorney General, Helena, MT, For Respondent.

¶ 1 Following a consolidated jury trial in the Tenth Judicial District Court, Judith Basin County, Donna June Enright (Enright) was found guilty of arson and deliberate homicide.   Her brother and co-defendant, Roy A. Link (Link), was tried and convicted of arson by accountability and deliberate homicide under the felony murder rule.   Both defendants now allege that their trials should not have been consolidated, that the State presented insufficient evidence for their convictions and that certain evidence was improperly admitted against them at trial.   We affirm the judgment of the District Court.

¶ 2 The charges against Enright and Link stem from the death of Enright's step-father, Leonard Theis (Leonard), in a trailer fire on October 17, 1996, in Stanford, Montana.   The State alleged that Enright and Link, acting in concert, intentionally started the fire to collect on insurance policies they purchased on Leonard's life.   Enright was charged by information with one count of deliberate homicide and one count of arson.   The information was later amended to include a charge of deliberate homicide (felony murder) as an alternative to the deliberate homicide charge.   Link was charged with arson by accountability, deliberate homicide, and deliberate homicide by accountability.

¶ 3 Both pled not guilty to all charges.   Following a five-day trial, Enright was convicted of arson and deliberate homicide.   In a separate trial, Link was convicted of arson by accountability and deliberate homicide but acquitted of the deliberate homicide by accountability charge.   Enright appealed her conviction and this Court reversed and remanded for a new trial on the grounds that certain prior acts evidence should not have been admitted.  State v. Enright, 1998 MT 322, ¶ 37, 292 Mont. 204, ¶ 37, 974 P.2d 1118, ¶ 37.   This Court subsequently reversed Link's arson and deliberate homicide convictions and remanded his case for a new trial as well.  State v. Link, 1999 MT 4, ¶ 35, 293 Mont. 23, ¶ 35, 974 P.2d 1124, ¶ 35.

¶ 4 to their second trial, the charges against Link were amended to arson by accountability and deliberate homicide under the felony murder rule.   The District Court also granted the State's motion, opposed by both Enright and Link, to consolidate their trials.   Following the consolidated trial, the jury found Enright guilty of arson and deliberate homicide and Link guilty of arson by accountability and guilty of deliberate homicide under the felony murder rule.   The District Court sentenced Enright to concurrent terms of twenty years on the arson charge and seventy-five years on the deliberate homicide charge.   Link was sentenced to five years on the arson by accountability charge and twenty years on the felony murder charge.   Both appeal from the judgment of conviction and sentence and together raise the following issues:

¶ 5 Issue 1:  Did the District Court err when it consolidated Link and Enright's trials?

¶ 6 Issue 2:  Did the District Court err when it denied Links's motion in limine to exclude exhibits and witnesses?

¶ 7 Issue 3:  Did the District Court err when it denied Link's motion in limine to exclude the November 22, 1996 letter from Enright?

¶ 8 Issue 4:  Was there sufficient evidence to support Link and Enright's convictions?

¶ 9 Issue 5:  Did the District Court commit such cumulative error that Enright was denied a fair trial?

DISCUSSION

¶ 10 Issue 1:  Did the District Court err when it consolidated Link and Enright's trials?

¶ 11 At the pretrial omnibus hearing, Enright claimed that consolidation would prejudice her defense by allowing the introduction of character evidence that would not be admissible against her in a separate trial.   Link's only specific claims were that joinder of his case prevented him from eliciting exculpatory evidence from Enright and prevented him from calling Enright's attorney to explain the context of a letter written by Enright to Link while she was in prison awaiting the first trial.   The District Court found that the cases met the statutory requirements for consolidation and that considerations of judicial economy far outweighed any prejudice claimed by the defendants.   We agree.

¶ 12 The decision to join or sever a trial is within the discretion of the trial court.  State v. Graves (1990), 241 Mont. 533, 538, 788 P.2d 311, 314.   Therefore, we review such a decision for abuse of discretion.  State v. Turner (1993), 262 Mont. 39, 53, 864 P.2d 235, 244.   The district court's discretion to consolidate trials is defined both by statute and case law.   Montana law provides that two or more defendants may be charged in the same indictment, information or complaint if they are alleged to have participated in the same transaction constituting an offense or offenses.  Section 46-11-404(4), MCA. In addition, § 46-13-210, MCA, provides that “the court may order two or more indictments, informations, complaints, or defendants to be tried together if the interests of justice require․” In considering whether there should be a joint trial, we have held that the district court must weigh the State's interest in judicial economy against the defendant's right to a fair trial.  Turner, 262 Mont. at 53, 864 P.2d at 244.   Joint trials speed the administration of criminal justice, conserve judicial time, lessen the burden on prospective jurors and obviate the necessity of recalling witnesses.   The trial court must weigh these benefits against the prejudice to a defendant that may arise as a result of his being tried with another defendant. State v. Strain (1980), 190 Mont. 44, 55-56, 618 P.2d 331, 338.   In striking this balance, considerations of judicial economy exert strong pressure in favor of joint trials.  State v. Campbell (1980), 189 Mont. 107, 121, 615 P.2d 190, 198 (citing United States v. Dohm (5th Cir.1979), 597 F.2d 535, 540).   Further, the burden of showing prejudice rests on the defendant.  Campbell, 189 Mont. at 121, 615 P.2d at 198 (citing State v. Orsborn (1976), 170 Mont. 480, 489, 555 P.2d 509, 515).   In showing prejudice, it is not sufficient that the defendant prove some prejudice or that a better chance of acquittal exists if separate trials are held.   Rather, the defendant must show the prejudice was so great as to prevent a fair trial.  Campbell, 189 Mont. at 121, 615 P.2d at 198 (citing Dohm, 597 F.2d at 539).

¶ 13 Enright and Link's cases meet the statutory requirements for consolidation because all charges arise from a fire in a trailer house in Stanford on October 17, 1996 in which Leonard lost his life. Both defendants are alleged to have participated in criminal acts resulting in the fire and death.   It is not required that they be charged with identical offenses.   Section 46-11-404(4), MCA.

¶ 14 In addition, the District Court found, correctly, that a great amount of judicial time and expense would be saved by consolidating the trials.   The witnesses called to testify and the physical evidence to be introduced by the State were almost the same for both defendants.   Enright and Link relied on the same expert witnesses in their first trials.   They were expected to do so again.   On motion of the defendants, the trial was moved from Judith Basin County, where the defendants were originally tried, to Hill County.   As a consequence of this change of venue, the District Court found that consolidation of the trials would significantly reduce inconvenience to witnesses and jurors.   None of these findings are disputed.   Rather, Enright and Link contend that the potential prejudice outweighed these considerations of judicial economy.

¶ 15 Enright claimed that Link would attempt to present derogatory character evidence against her;  evidence that would not be admissible against her in a separate trial.   However, in their original trials, neither defendant attempted to blame the other.   Rather, they both contended that the fire was either set by others or was an accident.   The District Court found no evidence that the parties' defenses would be different in the consolidated trials and Enright presented no evidence that Enright and Link were hostile to one another.

¶ 16 Link claimed that consolidation of the trials prevented him from eliciting exculpatory evidence from Enright.   Inability to call an exculpating co-defendant is a legitimate ground for denying a motion to consolidate trials.   However, to establish prejudice the defendant must be prepared to show that the co-defendant will testify and that the testimony will actually be exculpatory.  State v. Dess (1984), 207 Mont. 468, 474, 674 P.2d 502, 505 (citing Byrd v. Wainwright (5th Cir.1970), 428 F.2d 1017, 1019-20).   Link did not make this showing.   In his brief in response to the motion, he actually asserted that Enright might make inculpatory rather than exculpatory statements if called to testify.   On appeal, he drops this argument for more general but still unsupported assertions of prejudice.

¶ 17 Link also asserts that consolidation of the trial left him unable to call Enright's attorney to explain the background of a letter that implicated Link in a plan to commit arson with his sister, Enright.   Link was unable to offer any evidence to the District Court that Enright's attorney would be called to testify, that Enright would waive attorney-client privilege to allow him to testify, or that he would, indeed, offer any exculpatory testimony if he took the stand.

¶ 18 Neither Enright nor Link has made any specific or compelling showing that they would be prejudiced by consolidation of their trials;  much less that the prejudice would be so great as to prevent a fair trial.   In contrast, joinder of the trials clearly served the purpose of judicial economy and reduction of public expense.   Therefore, we hold that the District Court did not abuse its discretion when it ordered Enright and Link's trials consolidated.

¶ 19 Issue 2:  Did the District Court err when it denied Links's motion in limine to exclude exhibits and witnesses?

¶ 20 Link filed a pretrial motion to exclude exhibits and witnesses that he thought might be introduced for the purpose of showing that Leonard was murdered or that there might have been a financial motive for Leonard's death.   The District Court denied this motion.   Link contends that, since he was acquitted of accountability for homicide at the first trial, such evidence is irrelevant to his remaining charges of arson and deliberate homicide under the felony murder rule and should have been excluded.   The State contends that evidence of financial motive for Leonard's death is relevant to the arson charge and that, even if it was only relevant to Enright, the homicide and motive evidence was properly admitted at the consolidated trial.   We agree.

¶ 21 Court reviews a district court's evidentiary rulings for abuse of discretion.   The trial court has broad discretion in determining whether evidence is relevant and admissible, and absent a showing of abuse, this Court will not overturn that court's rulings.  State v. Smith, 1998 MT 257, ¶ 6, 291 Mont. 236, ¶ 6, 967 P.2d 424, ¶ 6 (citing State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263).

¶ 22 Only relevant evidence is admissible.   Rule 402, M.R.Evid. Evidence is relevant if it has the tendency to make the existence of any fact of consequence to the determination of the action more or less probable.   Rule 401, M.R.Evid. This Court has consistently held that evidence of motive is relevant for determining guilt or innocence.   See State v. Murdock (1972), 160 Mont. 95, 104, 500 P.2d 387, 392.

¶ 23 Link was charged with arson by accountability and felony murder.   The State's theory was that Enright killed Leonard for insurance proceeds and that Link aided and abetted her in the arson that caused Leonard's death.   Evidence that Link had a motive to assist Enright commit arson is clearly relevant to the question of his guilt or innocence.   Link argues that any evidence of a financial motive for Leonard's death was irrelevant to the arson charge because he had already been acquitted of purposely or knowingly causing Leonard's death in his first trial.   We find this argument unpersuasive.   That the potential financial gain could only come if Leonard died makes it no less a motive for setting the fire-or assisting Enright to do so.

¶ 24 if the evidence which Link sought to exclude could be viewed as relevant only to the charges against Enright, it was properly admitted at the consolidated trial.   Rule 105, M.R.Evid. As the District Court observed, the jury was capable of separately considering any evidence which pertained to guilt or innocence of each separate defendant and the court instructed the jury of its duty to do so.

¶ 25 Evidence that Leonard had been murdered was clearly relevant to the charges against Enright in the joint trial.   Furthermore, evidence of a financial motive for the arson was relevant to the question of whether Link aided or abetted Enright in the commission of the that act.   The District Court did not abuse its discretion when it denied Link's motion in limine.   We affirm.

¶ 26 Issue 3:  Did the District Court err when it denied Link's motions in limine to exclude the November 22, 1996 letter from Enright?

¶ 27 On November 22, 1996, after her arrest and incarceration in the Fergus County Jail but prior to the filing of charges against Link, Enright sent Link a letter.   In it, she refers to a “team” made up of Link and others and expresses concern that Link might be charged as a conspirator if he implicated her or himself.   Link filed a pretrial motion to exclude the letter arguing that it was inadmissible hearsay under Rule 801, M.R.Evid. The District Court allowed the letter to be admitted into evidence as a statement made by a co-conspirator under Rule 801(d)(2)(E), M.R.Evid.

¶ 28 On appeal, Link does not challenge the District Court's ruling under Rule 801(d)(2)(E) and does not dispute the sufficiency of the foundation for admission of the letter as a co-conspirator statement.  (For a discussion of these foundation requirements see State v. Smith (1996), 276 Mont. 434, 440, 916 P.2d 773, 776;  State v. Stever (1987), 225 Mont. 336, 341-43, 732 P.2d 853, 856-57.)   Rather, he contends that admission of the letter into evidence violated his right to confront witnesses against him under the rationale of our holding in State v. Fitzpatrick (1977), 174 Mont. 174, 569 P.2d 383.   This issue was not raised at trial and we will not address it now.

¶ 29 Our review of constitutional issues not raised at trial is constrained by § 46-20-701(2), MCA:

No claim alleging an error affecting jurisdictional or constitutional rights may be noticed on appeal, if the alleged error was not objected to as provided in 46-20-104, unless the defendant [convicted person] establishes that the error was prejudicial as to his guilt or punishment and that:

(a) the right asserted in the claim did not exist at the time of the trial and has been determined to be retroactive in its application;

(b) the prosecutor, the judge, or a law enforcement agency suppressed evidence from the defendant [convicted person] or his attorney that prevented the claim from being raised and disposed of;  or

(c) material and controlling facts upon which the claim is predicated were not known to the defendant [convicted person] or his attorney and could not have been ascertained by the exercise of reasonable diligence.

In order for this Court to review Link's confrontation claim he must show prejudice and applicability of at least one of the three statutory conditions set out above.   See State v. Cain (1986), 220 Mont. 509, 514, 717 P.2d 15, 18.   Link does not meet any of the three requirements.   His constitutional right to confront witnesses against him existed at the time of the trial.   Further, nothing prevented him from asserting his confrontation claim during the pretrial motion hearings or at trial by objection.   Finally, Link does not contend, even on appeal, that material or controlling facts where unknown to him.   We therefore hold that Link's failure to raise the confrontation issue at trial constitutes a waiver of his claim.

¶ 30 Issue 4:  Was there sufficient evidence to support Link and Enright's convictions?

¶ 31 Link argues that circumstantial evidence presented against him was insufficient as a matter of law to sustain his convictions for arson by accountability and deliberate homicide under the felony murder rule.   In his first trial Link was found guilty of these same charges but this Court reversed on the basis of improperly admitted prior acts evidence.   Nonetheless, we held that, even without the inadmissible evidence, there was sufficient evidence to permit any rational trier of fact to find beyond a reasonable doubt that Link aided and abetted Enright's commission of arson and, since Leonard died as a result of the arson, that there was sufficient evidence to find beyond a reasonable doubt that Link was guilty of deliberate homicide under the felony murder rule.  Link, ¶ 30-35.   The evidence presented in the second case is the same evidence we found sufficient in the first.   Therefore, for the reasons expressed in Link, we conclude that the evidence presented against Link in his second trial was sufficient to permit the jury to find beyond a reasonable doubt that Link was guilty of arson by accountability and deliberate homicide under the felony murder rule.

¶ 32 Enright also asks this Court to reverse her convictions for arson and deliberate homicide on the grounds of insufficient evidence.   This question was also put before this Court in Enright's appeal from her first conviction.   In that case we also held that the evidence was sufficient.   Enright, ¶ 32-36.   The State put on the same case in the second trial as it did in the first but Enright now contends that additional evidence, not presented in her first trial, casts doubt on the State's evidence.   However, the additional evidence presented by the defense does not undermine the legal sufficiency of the State's evidence.   The jury was entitled to accept or reject the additional defense evidence and its verdict constitutes its judgment on the credibility and weight the evidence should be accorded.   We hold now, as we did in Enright's first appeal on this issue, that the State presented sufficient evidence to prove the elements of the crimes of which Enright was charged.

¶ 33 Issue 5:  Did the District Court commit such cumulative error that Enright was denied a fair trial?

¶ 34 Enright contends that the District Court made several errors that combined to deny her a fair trial.   Reversal is required if accumulated errors prejudice the defendant's right to a fair trial.  State v. Hall (1988), 234 Mont. 57, 65, 761 P.2d 1283, 1288 (citing State v. Meidinger (1972), 160 Mont. 310, 321-22, 502 P.2d 58, 65).   However, in applying the doctrine, this Court has consistently refused to consider mere allegation of error, devoid of “argument or authority supporting defendant's contention.”  Meidinger, 160 Mont. at 322, 502 P.2d at 65.

¶ 35 Enright makes five specific allegations of error.   First, she repeats her allegation that the District Court erred when it consolidated her trial with Link's.   We have concluded that the District Court did not err when it consolidated the trials and, therefore, the consolidation issue can be no part of any cumulative error.  Hall, 234 Mont. at 65, 761 P.2d at 1288.

¶ 36 Next Enright asserts that the District Court erred in admitting certain testimony of Mina Mae Worm over the objection that it was inadmissible character evidence.   Ms. Worm testified that Enright was upset with Leonard and had yelled at him the day before the fire.   A district court has broad discretion to determine whether evidence is relevant and admissible.  Smith, ¶ 6. Here, the District Court did not abuse its discretion in allowing the testimony of Ms. Worm. The testimony concerned statements made by the defendant about the victim only a few hours before the victim died.   Such statements are not character evidence under Rules 404 and 405, M.R.Evid., and they may be properly admitted as relevant to the issue of Enright's state of mind and motive.

¶ 37 Enright's third and fourth specifications of error deal with evidence that Enright claims was only relevant as to Link and should not have been admitted against her.   While we do not agree that the evidence in question was irrelevant to the charges against Enright, it is sufficient that the evidence was relevant and properly admitted against Link. It is important to note that the jury was specifically instructed that it must determine the guilt or innocence of each defendant separately.   Enright has made no showing that the jury was unable to do so.

¶ 38 Finally, Enright alleges that the District Court improperly admitted evidence of debts owed by her son and her boyfriend.   She asserts that since she had no legal duty to repay them, evidence of these debts was irrelevant.   However, other evidence showed that Enright insured the trailer under her boyfriend's name and purchased insurance polices on Leonard's life with her son as a beneficiary.   Given the circumstances of this case, the District Court properly admitted the evidence as relevant to Enright's motive for the arson and homicide.   In any case, Enright does nothing more than allege the evidence was irrelevant and makes no showing that would allow this Court to find either prejudice or error.

¶ 39 This Court has carefully reviewed the issues presented by appellants.   Although consolidation of trials may always involve some prejudice to defendants, we find none in this case that would warrant reversal.   We find no abuse of judicial discretion in the District Court's evidentiary rulings.   Furthermore, we hold, as we did in their prior trials, that there was sufficient evidence for the jury to convict on the charges against both defendants.   Finally, inasmuch as none of the evidentiary rulings cited by Enright was error, this Court finds no grounds to apply the doctrine of cumulative error.

¶ 40 The judgment of the trial court is affirmed.

Justice W. WILLIAM LEAPHART delivered the Opinion of the Court.

JIM REGNIER, KARLA M. GRAY, JAMES C. NELSON, and TERRY N. TRIEWEILER, JJ., concur.

Supreme Court of Montana

State v. Enright

Jon A. Oldenburg, Attorney at Law;  Lewistown, for Appellant.Hon. Joseph P. Mazurek, Attorney General;  Joseph E. Thaggard and Elizabeth Horsman, Assistant Attorneys General;  Helena, for Respondent.

¶ 1 The defendant, Donna June Enright, was charged by information in the District Court for the Tenth Judicial District in Judith Basin County with felony arson and deliberate homicide.   The State filed a notice of intent to introduce evidence of other crimes, wrongs, or acts, and Enright filed a motion in limine to exclude the evidence of other crimes, wrongs, or acts.   The District Court granted in part and denied in part the motion in limine.   After a five-day jury trial, Enright was convicted of felony arson and deliberate homicide.   Enright appeals from her conviction.   We vacate the judgment of the District Court and remand this case to the District Court for further proceedings consistent with this opinion.

¶ 2 Enright presents two issues on appeal:

¶ 3 1. Did the District Court abuse its discretion when it denied in part Enright's motion in limine and admitted evidence of the 1995 fire during her trial?

¶ 4 2. Was there sufficient evidence to support the jury's verdict?

FACTUAL BACKGROUND

¶ 5 Faye Theis and Leonard Theis were married in 1961.   The couple had no children together, but Faye had children from a previous marriage, including Margaret Distad, Donna June Enright, and Roy Link.

¶ 6 In 1988, Faye and Leonard purchased and moved into a trailer in Great Falls.   Faye and Leonard eventually began to suffer from the effects of dementia and Alzheimer's disease and, in approximately November 1993, Distad and Link acquired a power of attorney on Faye's behalf, as did Enright and Link on Leonard's behalf.   Faye and Leonard entered a Great Falls nursing home in November 1993.   Shortly thereafter, however, Leonard left the nursing home and returned to the trailer.   Enright then became his guardian.   Faye remained in the nursing home.

¶ 7 In February 1995, Link exercised his power of attorney to transfer Faye's interest in the trailer to John Kozlowitz.   Enright also transferred Leonard's interest to Kozlowitz.   A week after Kozlowitz became the owner of the trailer, the home burned and he was paid the insurance proceeds.   The Great Falls Fire Department conducted an investigation of the fire, but did not determine the cause of the fire and found no evidence of foul play.   The adjuster for the insurer of the trailer saw nothing unusual about the circumstances of the fire and, after interviewing the fire department's investigator, saw no need to conduct an independent investigation of the cause.

¶ 8 A few months later, Enright, Kozlowitz, Leonard, and Tom Martin, Enright's son, formed the Sundown Inn, Inc. corporation for the purpose of purchasing and operating a bar and restaurant in Stanford.   Enright, Leonard, and Kozlowitz all then moved from Great Falls to Stanford, where they purchased three trailer lots.   Kozlowitz owned the two trailers that they kept on the lots, and he lived in one, while Enright and Leonard lived in the other trailer.   Financial difficulties eventually led the group to abandon their operation of the Sundown Inn in April 1996.   It appears that Enright and Leonard continued to live in Stanford, although they spent considerable time at Enright's home in Great Falls.

¶ 9 In July 1996, Enright applied for and eventually received on behalf of Leonard a lump sum distribution of Leonard's remaining pension benefits worth approximately $38,000.   Between July and October, six different insurance policies were purchased to insure Leonard's life;  Enright and Kozlowitz paid some of the premiums.   Testimony at trial suggested that Enright had actually prepared the applications and forged Leonard's signature.   The policies named Martin, Enright, and Link as beneficiaries.   In September 1996, Enright and Leonard moved back to Great Falls, after which Enright and Link made frequent trips to Stanford where they removed furniture from the Stanford trailer and transferred it to their residence in Great Falls.

¶ 10 On October 16, 1996, Enright and Leonard drove to Stanford from Great Falls in order to do their laundry at the Stanford trailer;  they had no laundry facilities in Great Falls.   After they had lunch at a cafe and went to a bar, Enright and Leonard were met by Link and his wife, who had come to Stanford to pick up one of Leonard's chairs from the trailer.   Link and his wife were at the bar only a short while before they went to get the chair, but Enright and Leonard remained at the bar until approximately 8:30 p.m. Over the course of the evening, Enright accrued approximately $1200 in gambling losses.

¶ 11 Enright and Leonard returned to the trailer.   Enright did the laundry and Leonard watched television.   Leonard was developing a cold, so in addition to turning up the furnace in the trailer and covering a number of the vents to channel the heat toward Leonard's part of the trailer, Enright gave Leonard some cold medicine.   Earlier in the day, Link had also allegedly given Leonard Tylenol with codeine.   According to Enright, Leonard went to bed in his room of the trailer at approximately 11:30 p.m. and she did not fall asleep until approximately 2:30 a.m.

¶ 12 Enright contends that she awoke shortly after she fell asleep to the sound of a smoke alarm.   She opened her bedroom door, but was confronted with smoke from the hallway and shut the door.   She then jumped out of her bedroom window to escape the trailer.   Enright tried to enter the trailer through its back door, but was unable to do so when confronted by flames.   She ran next door to Kozlowitz's trailer and called 911 at 3:40 a.m. She and Kozlowitz then tried to enter the burning trailer through the front door, but retreated because it was too dark.

¶ 13 When officials arrived to fight the fire, Enright told them that Leonard was still inside the trailer in his bedroom;  however, fire officials eventually found Leonard's body partially covered by a blanket on the living room couch, where he had apparently been asleep.   An autopsy revealed that Leonard died of carbon monoxide poisoning from smoke inhalation.   It further revealed the presence of therapeutic doses of potentially sedative drugs, such as Benadryl and codeine.

¶ 14 A few days later, agent Joe Uribe from the Criminal Investigation Bureau of the Montana Department of Justice was contacted by the Judith Basin County Sheriff to investigate Leonard's death.   During a search of the trailer, Uribe and other officers seized an empty bottle of sedative drugs, and a battery-operated smoke alarm that they found in the hallway;  they could not, however, find a battery for the alarm.   Uribe interviewed Enright on November 6, 1996.   He testified that she told him, among other things, that she was unaware of any life insurance policies for Leonard.   Uribe also testified that during the interview Enright made a number of other statements that appeared inconsistent with her earlier statements regarding the fire.   The next day he searched her home in Great Falls, where he found the six life insurance policies, a number of bills issued to Enright, Kozlowitz, Link, Martin, and Leonard, and several items of property which Enright had told her insurer had been destroyed in the fire.

¶ 15 Six experts investigated the fire and testified at trial.   They consistently testified that the fire started in a third bedroom that served as a storage room.   Several witnesses testified that the cause of the fire was a collection of newspapers that was stored in a corner of the room.   They all agreed that no accelerants were used to start the fire, and that there was no evidence of any deliberate act to start the fire.   Based largely on their inability to attribute the fire to any accidental cause, several experts opined that the cause of the fire was incendiary, as opposed to natural or undetermined.

¶ 16 On November 13, 1996, Enright was charged by information in the District Court for the Tenth Judicial District in Judith Basin County with felony arson and deliberate homicide;  the information was later amended to include an alternate charge of deliberate homicide pursuant to the felony murder rule at § 45-5-102(1)(b), MCA. Link and Kozlowitz were also charged a few months later based on their alleged roles in the fire and Leonard's death.

¶ 17 On April 14, 1997, the State filed its notice of intent to introduce evidence of other crimes, wrongs, or acts by Enright.   In order to prove motive, common scheme, and a nonaccidental cause of this fire, the State sought to introduce evidence that on seven previous occasions Enright had been involved in home or automobile fires for the purpose of making fraudulent insurance claims.   Enright filed a motion in limine to exclude, among other things, all evidence of previous fires and insurance claims.   After a hearing, the District Court granted in part and denied in part Enright's motion.   It held that all of the previous fires and the respective insurance claims were too remote in time and/or too dissimilar factually to be admitted, with the exception of the 1995 Great Falls trailer fire.   The court held that evidence of the 1995 fire could be admitted.

¶ 18 A five-day jury trial was conducted from June 16-20, 1997.   During the trial, the District Court permitted the State's witnesses to testify regarding the 1995 fire and the insurance claims made as a result of it.   The jury convicted Enright of arson and deliberate homicide, and she was ordered by the District Court to serve a seventy-five-year sentence.

ISSUE 1

¶ 19 Did the District Court abuse its discretion when it denied in part Enright's motion in limine and admitted evidence of the 1995 fire during her trial?

¶ 20 We review a district court's evidentiary rulings to determine whether the district court abused its discretion.   See State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263.

¶ 21 The State has alleged at trial and on appeal that due to gambling and business losses, Enright was in need of money, and that in order to obtain funds, she fraudulently insured Leonard's life, sedated him, and then intentionally burned the trailer with him in it to collect life insurance proceeds from his death.   In an effort to prove that the trailer fire was intentionally started and that Enright's actions in that regard were part of a common scheme, the State sought to introduce evidence of previous fires and of the insurance proceeds that were paid to Enright or other individuals close to her after those fires.   Throughout its attempts to introduce evidence surrounding the previous fires, the State referred to the fires as other crimes, wrongs, or acts evidence, and asserted that the evidence was admissible pursuant to the modified Just rule.   See generally State v. Matt (1991), 249 Mont. 136, 814 P.2d 52.

¶ 22 Enright contends that because there was no evidence which connected her to the 1995 fire, it should have been excluded pursuant to our decisions in State v. Johnson (1991), 250 Mont. 496, 821 P.2d 1039, and Britton v. Farmers Insurance Group (1986), 221 Mont. 67, 721 P.2d 303.

¶ 23 The State contends that pursuant to our decision in State v. Paulson (1991), 250 Mont. 32, 817 P.2d 1137, there is no threshold requirement regarding the quantum of proof necessary before evidence of other crimes, wrongs, or acts is admissible, and that the only appropriate analysis is pursuant to Rule 404(b), M.R.Evid., and Matt, 249 Mont. 136, 814 P.2d 52.

¶ 24 We conclude, however, that the four-part analysis for the admissibility of other crimes, wrongs, or acts assumes that there is evidence of a prior crime, wrong, or act, and without such evidence, there is nothing to analyze.   Paulson is not on point because in that case, other drug dealers testified to the defendant's importation and distribution of drugs prior to the distribution for which he was being tried.   The question in Paulson was not whether there was evidence of a prior criminal act by the defendant, but what quantum of proof would be required before that evidence could be admitted.

¶ 25 The facts in Johnson and Britton are more analogous to the facts in this case.   In Britton, Bill Britton filed a claim with his insurer, Farmers Insurance Group, after fire damaged one of the buildings on his property.   Farmers denied coverage, and in response to Britton's claim for bad faith, alleged that he had intentionally caused the fire.   From a verdict in Britton's favor, Farmers appealed and alleged that the district court erred when it refused evidence that Britton had recovered insurance proceeds from three previous fires which occurred on his property.   The evidence was offered by Farmers to demonstrate a common scheme or motive.   Without the need for any “other acts” analysis, we affirmed the district court's exclusion of the prior fires with the following explanation:

In like manner, we find no error in the denial by the District Court of evidence or testimony relating to prior fires on which Britton may have received insurance proceeds․  The proffered evidence did not meet the test of relevancy, in that it did not make probable that Britton had committed arson either from the viewpoint of motive, intent or deed itself.  Rhodes v. Weigand (1965), 145 Mont. 542, 402 P.2d 588.   Unless evidence naturally and logically tends to establish a fact in issue, it is not admissible.  Brion v. Brown (1959), 135 Mont. 356, 340 P.2d 539.   See McConnell-Cherewick v. Cherewick (1983), 205 Mont. 75, 666 P.2d 742.

Britton, 221 Mont. at 86, 721 P.2d at 315.

¶ 26 Although not discussed in our rationale for excluding the prior fires, it is apparent from our discussion of those fires that they were properly excluded because of a failure to offer any evidence that they were caused by Britton's wrongdoing.

¶ 27 Johnson, decided subsequent to Paulson, involved facts much more similar to those in this case, and found no need to apply the four-part analysis from Matt to nearly identical circumstances.   In Johnson, the defendants were charged with arson and, in the alternative, criminal mischief based on a fire that destroyed a mobile home.   Pursuant to notice of an intent to rely on other crimes evidence, the State was allowed to offer evidence of six prior fires which had occurred on premises owned or occupied by one or both of the defendants.   Following a three-day jury trial, the district court directed a verdict in favor of the defendants, dismissing the arson charges, but they were convicted by the jury of criminal mischief.   Based on the district court's admission of the prior fires, however, this Court reversed those convictions on appeal for the following reasons relevant to the issue in this case:

We hold that the admittance of these prior fires unfairly prejudiced the Defendants, as no evidence exists that links Defendants with intentionally causing these prior fires.   Therefore, these prior fires cannot be considered other crimes, wrongs or acts under Montana Rules of Evidence 403 and 404(b).   We reverse and remand this case;  in the event of a new trial, the District Court is to omit these prior fires as other crimes, wrongs or acts evidence.

Johnson, 250 Mont. at 499, 821 P.2d at 1041.

¶ 28 Likewise, in this case, we conclude that an analysis pursuant to Rule 404(b), M.R.Evid., of “other crimes, wrongs, or acts” evidence assumes that there is evidence of a prior wrongful act.   In this case, there was none.   Scott Enloe, the claims adjuster for the insurer of the trailer at the time of the 1995 fire, discussed the fire with the investigator for the Great Falls Fire Department.   He learned from that investigator that there was no evidence of foul play, and from his investigation found nothing unusual about the fire.   No additional evidence was offered at this trial to suggest that Enright was connected to the cause of the 1995 fire.   Therefore, there was insufficient foundation to offer evidence of the prior fire as a prior crime, wrongful act, or act of Enright, and there is no basis for analyzing the simple occurrence of a prior fire pursuant to the rule related to evidence of prior acts.

¶ 29 The State contends on appeal that Johnson and Britton do not control, since it contends that in neither of those cases was there evidence that the parties intentionally caused the previous fires.   Implicit in its argument is that such evidence exists in this case.   However, it is uncontroverted that the local authorities and the insurer made no allegations that the previous fire was intentionally caused, and no new evidence to that effect was offered.

¶ 30 The State would have the jury infer that something criminal was done in 1995 based on the facts in this case, and then use that inference to bootstrap guilt of the crimes charged.   Such circular reasoning has little probative value and creates a high risk that a jury would convict based on unsupported assumptions.

¶ 31 In other words, there is no evidence of an admissible common scheme.   Evidence of the 1995 fire was, therefore, not relevant to the issue of whether Enright committed the acts with which she was charged, and it should have been excluded.   As the District Court stated in its order regarding evidence which it did exclude prior to trial, “[t]he State's burden is to prove the specific crimes charged herein with proper evidence related to this incident.”   (Emphasis added.)   Accordingly, we hold that the District Court abused its discretion when it allowed evidence of the 1995 fire.

ISSUE 2

¶ 32 Was there sufficient evidence to support the jury's verdict?

¶ 33 We review the sufficiency of the evidence to support a jury verdict to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.   See State v. Licht (1994), 266 Mont. 123, 131, 879 P.2d 670, 675;  see also State v. Mergenthaler (1994), 263 Mont. 198, 203, 868 P.2d 560, 562.

¶ 34 The State's information charged Enright with arson pursuant to § 45-6-103(1), MCA, and with deliberate homicide pursuant to § 45-5-102(1)(a), MCA. The statutes require the State to prove beyond a reasonable doubt that Enright purposely or knowingly committed the respective acts of destroying the trailer by fire and causing Leonard's death.   Enright contends that the State failed to prove that she acted purposely or knowingly, and that the expert testimony failed to establish an intentional cause of the fire.

¶ 35 However, circumstantial evidence can be sufficient to prove criminal intent, as well as to sustain a conviction.   See State v. Bromgard (1993), 261 Mont. 291, 295, 862 P.2d 1140, 1142;  State v. Brogan (1993), 261 Mont. 79, 89, 862 P.2d 19, 25-26;  State v. Buckingham (1989), 240 Mont. 252, 260, 783 P.2d 1331, 1337;  see also § 45-2-103(3), MCA (“The existence of a mental state may be inferred from the acts of the accused and the facts and circumstances connected with the offense.”).   We conclude that in this case, after excluding evidence of the 1995 fire, there was still sufficient evidence to support submission of the State's charges to the jury.   Enright purchased six insurance policies which insured Leonard's life during the three months prior to his death, and then denied their existence;  Enright and her family and friends moved furniture out of the trailer prior to the fire and then claimed its loss to the insurance company;  Leonard's body revealed the presence of multiple sedative drugs;  a battery could not be found for the smoke alarm located nearest Enright's bedroom, and the only other smoke alarm in the trailer was located inside a closed kitchen cabinet at the completely opposite end of the trailer;  there were no signs of the clean laundry which Enright claimed to have left in the living room;  and the fire officials testified that despite Enright's supposedly multiple encounters with and in the burning trailer, they did not smell smoke on her.   Finally, there was expert opinion evidence that the fire was intentionally started.

¶ 36 While we recognize that Enright's version of the events suggests, at least in part, a benign explanation for this evidence, the role of fact-finding belongs to the jury.  “When circumstantial evidence is susceptible of two interpretations, one supporting guilt and the other supporting innocence, the trier of fact determines which is most reasonable.”  Bromgard, 261 Mont. at 295, 862 P.2d at 1142.   Accordingly, we conclude that the evidence in this case was sufficient to establish the essential elements of the alleged crimes beyond a reasonable doubt.

¶ 37 Therefore, Enright is not entitled to have the charges against her dismissed.   However, based on our conclusion that evidence of the 1995 fire was erroneously admitted, and further conclusion that that evidence was prejudicial to the defendant, we vacate the judgment of the District Court and remand to the District Court for a new trial.

Justice TERRY N. TRIEWEILER delivered the opinion of the Court.

JAMES C. NELSON, WILLIAM E. HUNT, SR., JIM REGNIER and W. WILLIAM LEAPHART, JJ., concur.