Convictions upheld in fire death
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
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
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
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,
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
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
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
A second jury convicted Enright of the same charges
in May 1999. A judge sentenced her to 95 years in prison with 20 years
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
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
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
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
STATE of Montana, Plaintiff and Respondent,
Donna June ENRIGHT, Defendant and Appellant.
State of Montana, Plaintiff and Respondent, v. Roy A. Link,
Defendant and Appellant.
December 28, 2000
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
¶ 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,
¶ 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
¶ 9 Issue 5: Did the District Court commit such cumulative error
that Enright was denied a fair trial?
¶ 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
¶ 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
¶ 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
¶ 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
¶ 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
¶ 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
(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;
(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
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
¶ 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
STATE of Montana, Plaintiff and Respondent,
Donna June ENRIGHT, Defendant and Appellant.
December 23, 1998
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,
¶ 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
¶ 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
¶ 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
¶ 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.
¶ 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,
¶ 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
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
¶ 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.
¶ 32 Was there sufficient evidence to support the
¶ 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.