State v. J. Strizich

. The district court admitted

                                            11
this evidence as evidence of flight. Burk,

234 Mont. at 122

. Because of

the delay between the date of Burk’s offense and the date of the alleged “flight,” we

commented on the issue of immediacy:

       In the instant case, immediacy is not an issue. Because it was several months
       after the arrest and charges that defendant disappeared, the inference that
       defendant tried to escape arrest is negated. However, we are not convinced
       that the evidence negates the possibility that defendant was trying to avoid
       prosecution, since he disappeared on the day of trial. Thus, the immediacy
       element is not at issue. It should be noted, however, that a defendant must
       do more than merely fail to show up for the flight evidence to be proper.

Burk,

234 Mont. at 122-23

 (citations omitted) (emphasis added). We

observed    that,   because   Burk’s    failure   to   appear    was   coupled    with    an

“inherently unbelievable” story regarding his absence, “it [was] reasonable that a jury could

infer a consciousness of guilt.” Burk,

761 P.2d at 827-28

.

¶26    Strizich’s flight from Elkhorn was not isolated. He fled after learning there was an

arrest warrant issued in connection with the Buus burglary. Strizich testified, “I didn’t

want to go to jail, and I was just scared. I didn’t want to go to jail.” He acknowledged that

his flight from Elkhorn was premeditated: “I planned it. You know, I had some friends

come down and get me out of there.” Strizich testified that he escaped through a window

with his friends’ assistance and then laid down in Lamere’s vehicle while Lamere led the

police on a high-speed chase.       From this evidence, a jury reasonably could infer

consciousness of guilt. The length of time between the burglary and the flight is immaterial

because the evidence is probative of Strizich’s desire to avoid legal responsibility for the

charged offense.



                                             12
¶27    We conclude that the District Court did not abuse its discretion by overruling

Strizich’s Rule 402 relevance objections.

       b. Rule 403

¶28    Rule 103(a)(1), M. R. Evid., requires “a timely objection . . . stating the specific

ground of the objection.” See also State v. Baker,

2000 MT 307, ¶ 29

302 Mont. 408

15 P.3d 379

. A trial court “should not be put in error when it was never given a chance to

rule on the specific objection.” Baker, ¶ 29 (citation omitted). We additionally have been

clear that “a party may not raise new arguments or change his legal theory on appeal.”

State v. Bar-Jonah,

2004 MT 344, ¶ 93

324 Mont. 278

102 P.3d 1229

 (citation omitted).

When a party fails to make a specific, contemporaneous objection at trial, Rule 103(d),

M. R. Evid., allows the Court, nonetheless, to exercise plain-error review in its discretion.

Zimmerman v. Bozeman Prod. Credit Ass’n,

233 Mont. 156, 160

759 P.2d 166, 169

 (1988).

¶29    Strizich did not make a Rule 403 objection at trial. Though he argued relevance, he

did not ask the court to exclude the flight evidence because it was unfairly prejudicial. He

raised Rules 402 and 404(b), but he never mentioned prejudice or Rule 403 and did not

give the District Court a “chance to rule on” the balance of probative value against unfair

prejudice. Citing State v. Fleming,

2019 MT 237

397 Mont. 345

449 P.3d 1234

, Strizich

now asserts that the District Court was obliged to conduct such a balancing analysis when

it overruled his relevance objection. In Fleming, however, the defendant filed a pre-trial

motion to suppress evidence of his prior conviction on three separate grounds—one of

which was Rule 403. Fleming, ¶ 23. The trial court held a hearing, at which Fleming

argued that the “previous conviction was highly and unfairly prejudicial[,]” and the court

                                             13
overruled his objection. Fleming, ¶¶ 5, 34. The trial court in Fleming did not undertake a

Rule 403 analysis sua sponte, as Strizich seems to suggest. In Busta v. Columbus Hosp.,

276 Mont. 342, 353-54

916 P.2d 122, 129

 (1996), we specifically declined to review a

Rule 403 argument on appeal where the defendant made a relevance objection but not a

Rule 403 objection at trial. Strizich did not preserve his Rule 403 argument for appeal.

¶30    Citing State v. Tome,

2021 MT 229

405 Mont. 292

495 P.3d 54

, Busta, and

State v. Rogers,

2013 MT 221

371 Mont. 239

306 P.3d 348

, the Dissent contends that

Strizich properly preserved his Rule 403 objection. These cases do not, however, lend

Strizich any support.    In Tome, the defendant “specifically argued that his right of

confrontation would be violated[,]” and the district court specifically ruled on that

objection. Tome, ¶¶ 13-14. “At the beginning of the second trial, Tome again objected,

stating: . . . ‘We believe it’s a due process and confrontation violation[.] . . . We think we

have a right to confront.’” Tome, ¶ 19. Strizich, objecting four times to the flight evidence,

did not once suggest that the evidence was “unfairly prejudicial” or mention Rule 403, nor

did the trial judge rule on a Rule 403 objection.

¶31    Busta and Rogers demonstrate that we have applied the appropriate scope of review

here. In Busta, we reviewed a relevancy objection even though Busta never said the word

“irrelevant” at trial. Busta,

276 Mont. at 354

. We construed the objection

that the exhibit “was written by a person who was not an interested party to this lawsuit”

as stating that the exhibit was irrelevant. Busta,

276 Mont. at 354

.

Similarly, Strizich’s trial counsel said, “he’s not charged with escape[, s]o it has nothing

to do with the burglary.” The trial judge construed the words “nothing to do with” as stating

                                             14
a Rule 402 relevancy objection and later ruled on that specific objection: “Mr. Strizich’s

fleeing from the Elkhorn facility is relevant because it tends to show consciousness of

guilt.” In Rogers, we reviewed a Rule 404(b) argument where the defendant asked, “do you

want to prosecute me on my past?” Rogers, ¶ 34. Strizich’s trial counsel stated in like

fashion, “it is . . . other acts that the State is trying to bring in simply to establish that my

client is a bad person or that he was fleeing from a crime.” The District Court construed

these words as making a Rule 404(b) objection and later ruled on that specific objection,

stating: “Rule 404(b) . . . does not apply.” We review Strizich’s preserved Rules 402 and

404(b) objections here as “apparent from the context.” See M. R. Evid. 103. But neither

Rogers nor Busta suggests an appellate court read unstated objections into the trial

transcript.    Quite the opposite, Busta expressly prohibits this Court from doing so.

See Busta,

276 Mont. at 353-54

.

¶32    We of course permit parties to “bolster their preserved issues with additional legal

authority or to make further arguments within the scope of the legal theory articulated

[at trial].” State v. Montgomery,

2010 MT 193, ¶ 12

357 Mont. 348

239 P.3d 929

.

Strizich,     though,   is   not   supporting   an   unfair   prejudice    trial   theory   with

“additional authority” or “further[ing an] argument[ ] within the scope” of the same legal

theory. He instead presents a new theory of inadmissibility for the first time on appeal;

this we consistently do not allow. See Bar-Jonah, ¶ 93; State v. Heath,

2004 MT 58, ¶ 39

320 Mont. 211

89 P.3d 947

; State v. Martinez,

2003 MT 65, ¶ 17

314 Mont. 434

67 P.3d 207

; State v. Weaselboy,

1999 MT 274, ¶ 16

296 Mont. 503

989 P.2d 836

.



                                                15
¶33    Strizich does not argue on appeal that we should invoke plain-error review.

“To invoke plain-error review, ‘we still require the assertion of plain error to be raised and

argued on appeal.’” In re B.H.,

2018 MT 282, ¶ 15

393 Mont. 352

430 P.3d 1006

 (quoting

In re B.O.T.,

2015 MT 40, ¶ 22

378 Mont. 198

342 P.3d 981

). We have refused to invoke

the common-law doctrine of plain-error review when a party raises such a request for the

first time in a reply brief. See, e.g., Fleming, ¶ 40; State v. Johnson,

2010 MT 288, ¶ 13

359 Mont. 15

245 P.3d 1113

; State v. Raugust,

2000 MT 146, ¶ 19

300 Mont. 54

3 P.3d 115

; State v. Hagen,

283 Mont. 156, 159

939 P.2d 994, 996

 (1997). Strizich did

not do that, either. He has not asked the Court to review the flight evidence for plain error.

We examine the issue with the apposite circumspection to determine whether Strizich has

made the case for our discretionary review.

¶34    Relevant evidence “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” Rule 403, M. R. Evid. (emphasis added). “District courts have

broad discretion to weigh the relative probative value of evidence against the risk of unfair

prejudice.” State v. Madplume,

2017 MT 40, ¶ 32

386 Mont. 368

390 P.3d 142

. Rule 403

is “a fact-specific balancing test.” State v. Haithcox,

2019 MT 201, ¶ 16

397 Mont. 103

447 P.3d 452

. The district court is in the best position to determine whether evidence is

unfairly prejudicial.   See Vintage Constr., Inc. v. Feighner,

2017 MT 109, ¶ 20

387 Mont. 354

394 P.3d 179

; O’Connor v. George,

2015 MT 274, ¶ 17

381 Mont. 127

357 P.3d 323

; Benjamin v. Torgerson,

1999 MT 216, ¶ 15

295 Mont. 528

985 P.2d 734

;

                                              16
State v. Couture,

1998 MT 137, ¶ 18

289 Mont. 215

959 P.2d 948

; State v. Ford,

278 Mont. 353, 361

926 P.2d 245, 249-50

 (1996); Waller v. Hayden,

268 Mont. 204, 210

885 P.2d 1305, 1308

 (1994).        This Court does not weigh the facts in isolation of

district court review.

¶35    Probative evidence always is prejudicial to some degree. Madplume, ¶ 33 (citation

omitted). “Evidence rises to the level of being unfairly prejudicial ‘only if it arouses the

jury’s hostility or sympathy for one side without regard to its probative value, if it confuses

or misleads the trier of fact, or if it unduly distracts from the main issues.’”

Madplume, ¶ 33 (emphasis added) (quoting State v. Hicks,

2013 MT 50, ¶ 24

369 Mont. 165

296 P.3d 1149

). Even if evidence rises to the level of unfair prejudice,

“the Rule 403 balancing test favors admission[.]” Madplume, ¶ 33.

¶36    We considered whether flight evidence violated Rule 403 in Burk. We stated:

       There is probative value to flight evidence. The fact that the jury could
       reasonably interpret the defendant’s actions as flight in avoidance of
       prosecution would support the instruction on flight. Burk had ample
       opportunity to tell the jury his reasons for absence and to dissipate any
       prejudice the jury might attach to the fact that Burk was not present [at his
       original trial].

Burk,

234 Mont. at 125

761 P.2d at 828

(internal citations and quotations omitted).

Strizich too had ample opportunity to “dissipate any prejudice” by explaining the reasons

for his flight from Elkhorn. Strizich testified, though, that he escaped Elkhorn to avoid

arrest for the Buus burglary, effectively bolstering the probative value of the flight

evidence.

17
¶37 Strizich argues that he was unfairly prejudiced when the District Court took judicial

notice of Lamere’s youth court dispositional order. By that time, the jury had heard the

testimonies of nursing assistant Applin and Deputies Holmlund and Schmidt. Applin’s

testimony established that two friends visited Strizich right before Strizich fled through a

window. Holmlund’s testimony described the beginning of the pursuit and the second

vehicle acting as a “blocker.” As Holmlund did not pursue Lamere onto Recreation Road,

Schmidt’s testimony described the final pursuit and ultimately the crash on Recreation

Road. This told the story of Strizich’s flight from Elkhorn. The only additional

information in the court’s judicial notice was Lamere’s admission to the offense of criminal

endangerment. Otherwise, the jury already heard details of the pursuit, including Lamere’s

driving speed.

¶38 Strizich acknowledges that some evidence of his flight may have been permissible

but argues it went too far. We agree with Strizich that Lamere’s youth court offense added

little probative value to the charges Strizich faced.2 But this is precisely the point of

requiring a specific objection at trial. Had he argued undue prejudice from certain facts or

details, the trial court may have been persuaded to limit the testimony. On the record as it

stands, however, Strizich has not met his burden to demonstrate that either the testimony

2
We also have observed that the “interest of justice is perhaps best served if [flight evidence] is
reserved for counsel’s argument, with little if any comment by the bench.” State v. Hall,

1999 MT 297, ¶ 45

297 Mont. 111

991 P.2d 929

. Strizich does not raise a Hall argument on
appeal. Strizich did not make a “Hall-type objection to the flight evidence during [trial,]” either.
See State v. Davis,

2000 MT 199, ¶¶ 37-39

300 Mont. 458

5 P.3d 547

(where the defendant did
not argue at trial that the court’s instruction constituted an “improper comment on the evidence”);
Baker, ¶ 30 (“We decline to address Baker’s objection that the flight instruction was a comment
on the evidence since that objection is raised for the first time on appeal”). We do not address
whether taking judicial notice is a comment on the evidence.
18
of the high-speed chase or the evidence of Lamere’s disposition rendered the trial

fundamentally unfair. The jury received overwhelming evidence of Strizich’s involvement

in the crimes, including the items in Strizich’s Durango, the state of the Buuses’ cabin, the

state of the Mayerniks’ cabin, the photographs of Strizich and Daniels at the Buuses’ cabin,

and Lippert’s stolen belt buckle. Strizich intentionally took off with Lamere and laid in

the back seat, from which the jury could infer he sought to avoid arrest and prosecution for

those offenses. And Strizich readily acknowledged that he fled Elkhorn to avoid legal

accountability for the Buus burglary. The addition of Lamere’s youth court dispositional

order and details of the flight did not “so arouse[ ] the jury’s hostility or sympathy for one

side without regard to its probative value, . . . confuse[ ] or mislead[ ] the trier of fact,

or . . . unduly distract[ ] from the main issues” to render the trial fundamentally unfair.

See Madplume, ¶ 13. See also State v. Shaw,

199 Mont. 248, 253

648 P.2d 287, 290

 (1982)

(finding no unfair prejudice in evidence tending to show consciousness of guilt).

¶39    Strizich has failed to “firmly convinc[e]” us that the flight evidence presented to the

jury amounted to constitutional deprivation of a fair trial or undermined the integrity of the

judicial process to such an extent that its admission requires reversal. See State v. George,

2020 MT 56, ¶ 5

399 Mont. 173

459 P.3d 854

 (describing a defendant’s burden for

plain-error review).

¶40    Were we in any event, as the Dissent suggests, to review admission of the evidence

for harmless error, Strizich still cannot prevail. “We use the cumulative evidence test to

determine whether the error was harmless under the circumstances.” State v. Santillan,

2017 MT 314, ¶ 35

390 Mont. 25

408 P.3d 130

 (citing State v. Van Kirk,

2001 MT 184

306 Mont. 215

32 P.3d 735

); State v. Kaarma,

2017 MT 24, ¶ 89

386 Mont. 243

390 P.3d 609

 (citing Van Kirk, ¶ 43). Key inquiries under the Van Kirk test are whether

the evidence “tend[ed] to prove an element of the crime,” Van Kirk, ¶ 45, and whether

“the fact-finder was presented with admissible evidence that proved the same facts as the

tainted evidence,” Santillan, ¶ 35 (citing Van Kirk, ¶ 43). “[W]here the tainted evidence

does not go to the proof of an element of the crime charged, and there is no other admissible

evidence tending to prove the particular fact at issue,” then the State must show that there

is “no reasonable possibility the tainted evidence might have contributed to the defendant’s

conviction[.]” Van Kirk, ¶ 46 (emphasis added); accord State v. Forsythe,

2017 MT 61, ¶ 43

387 Mont. 62

390 P.3d 931

 (“If the tainted evidence is the only evidence tending to

prove a fact other than an element of the charged offense, then the error is harmless if the

State can show . . . the tainted evidence could not reasonably have contributed to the

conviction.”) (emphasis added); State v. Payne,

2011 MT 35, ¶¶ 37-38

359 Mont. 270

248 P.3d 842

 (“Merifield’s evidence did not go to an element of Payne’s charged offense[.]

No untainted evidence was presented[.] Therefore, . . . the State must demonstrate that

there was no ‘reasonable possibility’ that the jury relied on Payne’s lack of compliance

with Connecticut law to convict him.”) (emphasis added).

¶41    The State offered, and the District Court admitted, evidence of Strizich’s flight to

show consciousness of guilt, not to prove an element of the crime charged. And, as Strizich

acknowledges, some of the flight evidence was admissible for that purpose. Harmless error

review here thus passes both threshold inquiries. The Dissent does not address the

considerable evidence of Strizich’s guilt we already have discussed. See supra ¶ 38.

                                             20
Giving Strizich’s claim on appeal the most generous review, the error was harmless under

the cumulative evidence test because there was other admissible evidence proving

consciousness of guilt and the evidence did not go to an element of the crimes charged. In

the final analysis, Strizich has not persuaded us that the flight evidence carried such unfair

prejudice as to “prompt the jury to decide the case on an improper basis.” State v. Stewart,

2012 MT 317, ¶ 68

367 Mont. 503

291 P.3d 1187

 (citing State v. Belanus,

2010 MT 204, ¶ 14

357 Mont. 463

240 P.3d 1021

).

¶42    Strizich fails to establish that by admission of the flight evidence he “was prejudiced

and his right to a fair trial violated.” See State v. Byrne,

2021 MT 238, ¶ 30

405 Mont. 352

495 P.3d 440

; § 40-20-701(1) and (2), MCA. We decline to require a new trial on this

ground.

¶43 2. Has Strizich established plain error in the District Court’s mental state
instructions?

¶44    Strizich did not object to the jury instructions at trial but challenges several on

appeal. To invoke this Court’s common-law doctrine of plain-error review, Strizich must

“(1) show that the claimed error implicates a fundamental right and (2) ‘firmly convince’

this Court that failure to review the claimed error would result in a manifest miscarriage of

justice, leave unsettled the question of the fundamental fairness of the trial or proceedings,

or compromise the integrity of the judicial process.” Favel, ¶ 24 (quoting State v. Daniels,

2011 MT 278, ¶ 32

362 Mont. 426

265 P.3d 623

¶45 Strizich first claims that the District Court erred in instructing the jury on Count II,

Accountability for Aggravated Burglary. Because Strizich was not convicted of Count II,

21
even if he could show an error that implicates a fundamental right, he cannot establish that

this error led to a manifest miscarriage of justice.

¶46 Next, Strizich contends that the District Court failed to instruct the jury that theft is

a result-based crime with respect to the mental state.

¶47 Under § 45-6-301, MCA, “[a] person commits the offense of theft when the person

purposely or knowingly obtains or exerts unauthorized control over property of the owner

and . . . has the purpose of depriving the owner of the property.” The court’s Instruction No.

32 stated:

With respect to THEFT, a person purposely obtains or exerts unauthorized
control over property of another, when it is the person’s conscious object to
engage in conduct of that nature. With respect to THEFT, a person has the
purpose of depriving the owner of the property when it is the person’s
conscious object to cause such a result.

The first sentence of the instruction pertains to the act element of theft (exerts unauthorized

control). It states that the mental state concerning the act element of theft is conduct-based

(e.g., “it is that person’s conscious object to engage in conduct of that nature”). The second

sentence of the instruction pertains to the result element of theft (deprivation of the owner’s

property). It states that the mental state as to the deprivation is result-based (e.g., “it is the

person’s conscious object to cause such a result”). The result of the crime of theft is the

deprivation of the owner’s property. See State v. Lawrence,

2016 MT 346, ¶ 31

386 Mont. 86

385 P.3d 968

. Instruction No. 32 fairly instructed the jury that the mental

state as to the deprivation of the owner’s property must be result-based.

¶48 Strizich alleges also that the District Court failed to instruct the jury properly on the

mental state of the aggravating factor in aggravated burglary. Under § 45-6-204, MCA,

22
[a] person commits the offense of aggravated burglary if the person
knowingly enters or remains unlawfully in an occupied structure and:

(a)(i) the person has the purpose to commit an offense in the occupied
structure; or

(ii) the person knowingly or purposely commits any other offense within that
structure; and

(b) in effecting entry or in the course of committing the offense or in
immediate flight after effecting entry or committing the offense:

(i) the person or another participant in the offense is armed with explosives
or a weapon; or

(ii) the person purposely, knowingly, or negligently inflicts or attempts to
inflict bodily injury upon anyone.

The District Court’s Instruction No. 17 stated,

A person commits the offense of [aggravated burglary] as alleged in Count I,
if the person knowingly enters or remains in an occupied structure with the
purpose to commit the offense of Theft therein, and in effecting entry, in
course of committing the offense, or in immediate flight after the commission
of the offense, the person purposely, knowingly, or negligently inflicted or
attempted to inflict bodily injury upon another(s).

Instruction No. 36 defined “purposely” with respect to aggravated burglary: “a person has

the purpose to commit an offense when it is the person’s conscious object to cause such a

result.” Instruction No. 37 defined “knowingly” with respect to aggravated

burglary: “a person knowingly enters or remains unlawfully in an occupied structure when

the person is aware of his or her conduct.” Instruction No. 38 defined “negligently” with

respect to aggravated burglary: “a person acts negligently when an act is done with a

conscious disregard of the risk, or when the person should be aware of the risk by

knowingly entering or remaining unlawfully in an occupied structure.”

23
¶49 Taken as a whole, these instructions fully and fairly instructed the jury on each

mental state definition as it may apply to different elements of aggravated burglary,

including the aggravating factor charged. Though Strizich parses details of the instructions

that could have been worded more clearly as applied to certain elements, he made no such

argument or objection at trial. Strizich has not met his burden to demonstrate that the

District Court committed plain error in its jury instructions, and he is not entitled to a new

trial on this ground.

CONCLUSION

¶50 We affirm the District Court’s March 14, 2018 Amended Judgment and

Commitment.

/S/ BETH BAKER

We Concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE

Justice Laurie McKinnon, dissenting.

¶51 I dissent. First, I would conclude the evidence of Strizich’s flight from Elkhorn was

irrelevant. Alternatively, I would conclude Strizich properly preserved his Rule 403

objection and the evidence of his flight from Elkhorn, introduced through testimony

concerning Lamere’s bad acts, was unfairly prejudicial and violated Rule 404(b).

24
¶52 The majority concludes the evidence of Strizich’s flight is relevant because it is

probative of his “desire to avoid legal responsibility for the charged offense.” Evidence is

relevant if it has “any tendency to make the existence of any fact that is of consequence to

the determination of the action more [or less] probable than it would be without the

evidence.” M. R. Evid. 401. Generally, all relevant evidence is admissible; irrelevant

evidence is not. M. R. Evid. 402. Here, Strizich was not fleeing the crime scene of the

burglary for which he was eventually charged, nor was he fleeing from an arresting officer

who intended to apprehend him for the burglary offenses. The circumstantial evidence the

Court relies upon to support its conclusion that Strizich was conscious of his guilt for the

charged burglary offenses, and thus constituted relevant evidence, is that Strizich left a

medical rehabilitation center three weeks after the offense and was a passenger in a vehicle

driven by Lamere. However, it was Lamere, not Strizich, who led police on a high-speed

chase, and it was Lamere, not Strizich, who ultimately was charged with criminal

endangerment following those events. In my opinion, there is no evidentiary support for

the jury to infer Strizich’s consciousness of guilt from Lamere’s high speed chase, and the

evidence was highly prejudicial to Strizich. I disagree that Strizich’s flight from Elkhorn

has any relevance to his consciousness of guilt for the charged burglary offenses.

¶53 I agree that evidence of flight may prove relevant to a defendant’s consciousness of

guilt in certain instances. Evidence of flight that creates an inference of the defendant’s

consciousness of guilt has been admissible evidence since the English common law.

See Hickory v. United States,

160 U.S. 408, 418

16 S. Ct. 327, 331

 (1896). Of course,

flight is not limited to the guilty, for “the innocent do often conceal through fear or other

                                         25
emotion.” Hickory,

160 U.S. at 421

16 S. Ct. at 332

. As such, “[e]vidence of flight tends

to be only marginally probative as to the ultimate issue of guilt or innocence.” State v. Hall,

1999 MT 297, ¶ 45

297 Mont. 111

991 P.2d 929

 (citations omitted). “In the face of

Supreme Court decisions expressing doubt as to the probative value of flight, the lower

courts have generally scrutinized the facts of each case to determine whether the jury

should be given the opportunity to draw an inference of guilt from a defendant’s flight.”

United States v. Peltier,

585 F.2d 314, 323

 (8th Cir. 1978) (internal citations omitted). Any

probative value of evidence of flight depends on the degree of confidence with which four

inferences can be drawn: “(1) from the defendant’s behavior to flight; (2) from flight to

consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning

the crime charged; and (4) from consciousness of guilt concerning the crime charged to

actual guilt of the crime charged.” State v. Patton,

280 Mont. 278, 292

930 P.2d 635, 643


(1996) (Leaphart, J., specially concurring) (quoting United States v. Jackson,

572 F.2d 636, 639

 (7th Cir. 1978)). Importantly, here, the “validity of drawing these inferences in turn

depends upon the number of evidentiary manifestations suggesting defendant’s decision to

flee was prompted by considerations related to the crime in question.”                 Peltier,

585 F.2d at 323

 (emphasis added). In Bailey v. United States,

416 F.2d 1110, 1115

 (D.C.

Cir. 1969), it was explained that “guilt, as a factual deduction, must be predicated upon a

firmer foundation than a combination of unelucidated presence and unelucidated flight.”

¶54    When I apply these inferences to the evidentiary record here, I would conclude

(1) the evidence surrounding Strizich’s departure from Elkhorn had no relevance or

connection to the charged burglary offenses; (2) Strizich’s leaving Elkhorn was not

                                          26
circumstantial evidence of any consciousness of guilt for the charged burglary offenses;

(3) there is no consciousness of guilt that infers consciousness of guilt for the charged

burglary offenses; and (4) an inference of actual guilt based on this evidentiary record is

analytically improper. Analytically, flight evidence is generally considered “admission by

conduct.” United States v. Myers,

550 F.2d 1036, 1049

 (5th Cir. 1977). I cannot say, with

any degree of confidence, that the four permissible inferences could be drawn from the

State’s evidence. I fail to see how Strizich’s departure from Elkhorn in a vehicle driven by

Lamere, three weeks after the burglary offenses occurred, is an admission of guilt by

Strizich of the burglary.

¶55    The majority relies primarily on Burk to reach its conclusion, but fails to properly

apply Burk. As the majority cites from Burk, “a defendant must do more than merely fail

to show up for the flight evidence to be proper.”


(emphasis added). Burk’s failure to appear was paired with an “inherently unbelievable

story” excusing his absence. Burk,

761 P.2d at 827-28

. At the time

Strizich fled, it is true that an arrest warrant had been issued in connection with the

burglary. However, Strizich had already been informed of the warrant three weeks before

his flight and admitted this knowledge at trial. Strizich had not been charged with any

crimes, and the record indicates he was not charged with the burglary offenses until nearly

two weeks after his flight. Nor would Strizich be charged with any offense for the flight

from Elkhorn. Strizich’s flight, then, simply could not cause him to fail to appear at any

proceedings. See § 1-3-221, MCA (“That which does not appear to exist is to be regarded

as if it did not exist.”). At trial, Strizich did not present an “inherently unbelievable” story.

                                           27
See Burk,

761 P.2d at 827-28

. Strizich testified truthfully concerning

the circumstances of his flight and acknowledged that doing so might impact his friends.

Moreover, evidence of his flight, three weeks after the burglary but before any formal

proceedings commenced, has no probative value to his guilt for the charged offenses.

Simply, Strizich did not “do more than merely fail to show up.” After his arrest, he showed

up and testified truthfully. Evidence of his flight, then, must be improper. See Burk,

. Accordingly, I would find the District Court abused its

discretion and that evidence of Strizich’s flight was improper under Rule 402. I now

address whether, assuming the relevancy of the evidence, Strizich’s Rule 403 objection

was properly preserved.

¶56    The majority states that Strizich failed to raise a specific Rule 403 objection at trial

and “did not give the District Court a chance to rule on the balance of probative value

against unfair prejudice.” Opinion, ¶ 29 (internal quotations omitted). In my view, this

represents a half-truth. Rule 103(a)(1), M. R. Evid., requires “a timely objection . . . stating

the specific ground of objection, if the specific ground was not apparent from the context.”

(Emphasis added). Our analysis, accordingly, focuses on the record.

¶57    In State v. Greytak, the district court overruled Greytak’s objection on grounds of

speculation at trial.

262 Mont. 401, 403

865 P.2d 1096, 1098

 (1993). On appeal, Greytak

argued the testimony at issue constituted improper impeachment which bolstered the

witness’s credibility.

262 Mont. at 404

865 P.2d at 1098

. We affirmed the district court’s

ruling, noting “the prosecutor’s question was not improper for the reason urged at the time

of trial and that the reason raised for the first time on appeal was not apparent from the

                                           28
context in which the question was asked.”

262 Mont. at 404

865 P.2d at 1098

. In

State v. Castle, the defendant again objected on grounds of speculation.

1999 MT 141, ¶ 13

295 Mont. 1

982 P.2d 1035

. The district court overruled the objection and referenced

the witness’s expert qualifications as laying sufficient foundation for their testimony.

Castle, ¶¶ 13-15. We affirmed the district court’s ruling and noted “the specific ground for

objection [was not] apparent from the context of the objection, as is evidenced by the

District Court’s inference that the objection related to Reilly’s expert qualifications.”

Castle, ¶ 15.    Conversely, in Superior Enterprises, LLC v. Montana Power Co.,

Superior Enterprises objected to Montana Power Company’s failure to disclose an intended

witness but failed to specify whether the witness was an expert or lay witness.

2002 MT 139, ¶¶ 12-13

310 Mont. 198

49 P.3d 565

. We based our conclusion on the

district court’s “apparent[ ] aware[ness] that [the witness] was testifying as an expert” and

noted the district court’s colloquy calling the witness an expert. Superior Enters. LLC,

¶ 13.     In the context of the case, we concluded the objection was adequate.

Superior Enters. LLC, ¶ 13.

¶58     Other precedent provides further guidance to our context-based inquiry. In our

recent decision, State v. Tome, we were faced with the preliminary issue of whether Tome

properly preserved his Confrontation Clause objection for appeal.

2021 MT 229, ¶ 18

405 Mont. 292

495 P.3d 54

. In Tome, the State contended “Tome’s general reference to

the Confrontation Clause was insufficient to preserve his argument . . .” Tome, ¶ 18. We

disagreed, concluding our review of the record “demonstrate[d] that the court understood

Tome’s objection” and noting the district court’s comments were relevant in reaching that

                                         29
conclusion. Tome, ¶ 19. We further noted if “the court were limited to the arguments and

reasoning of counsel in its decisions of cases, to the exclusion of our own observations,

many cases would lead us far from what we understand to be the true object of the court.”

Tome, ¶ 20 (citations omitted). Nor is it unprecedented for us to “permit[ ] parties to bolster

their preserved issues with additional legal authority or to make further arguments within

the scope of the legal theory articulated to the trial court.”         State v. Montgomery,

2010 MT 193, ¶ 12

357 Mont. 348

239 P.3d 929

; see also Tome, ¶ 21 (compiling cases).

¶59    Busta v. Columbus Hospital,

276 Mont. 342

916 P.2d 122

 (1996), provides further

illustration of a context-based objection under Rule 103(a)(1). The majority correctly notes

that “we specifically declined to review a Rule 403 argument on appeal where the

defendant . . . [did not make] a Rule 403 objection at trial” in Busta. Opinion, ¶ 29.

However, in the very next sentence after we concluded the Rule 403 objection was waived,

we noted “[a]lthough irrelevance was not specifically stated as a basis for the defendant’s

objection to the plaintiff’s photographic exhibit, we will construe its objection to the effect

that the author of the message on the exhibit was not a party to mean that the exhibit was

therefore irrelevant.” Busta,

276 Mont. at 354

 (emphasis added). The

record and context of the objection proved crucial to our interpretation of the relevance

objection in Busta. In State v. Rogers, we noted that Rogers failed to specifically cite

Rule 404(b) as the basis for his objection.

2013 MT 221, ¶ 34

371 Mont. 239

306 P.3d 348

. Nevertheless, we concluded his statements, including the objection

“‘Do you want to prosecute me on my past, or this charge?’ . . . were sufficient to put the

State and the court on notice” of the grounds for Rogers’s objection. Rogers, ¶ 34. This

30
line of cases indicates the key inquiry concerns the district court’s understanding of the

objection.

¶60 I agree with the majority that Strizich failed to expressly and specifically object

under M. R. Evid. 403 by saying “I object under 403.” I disagree, however, that Strizich’s

objection was not properly preserved and “did not give the District Court a chance to rule

on the balance of probative value against unfair prejudice.” Both the District Court and the

State construed Strizich’s objection as raising Rule 403 concerns in the following colloquy:

[State]: As long as it was provided in the discovery, and it was, then the
obligation is on the defense to bring it to the Court’s attention at omnibus or
certainly before now, and the Court can have a hearing as to its probative
value, and all of that time is gone, Judge.

So [defense counsel] sits on this issue until today, literally with the jury
waiting outside, and then he argues that it’s somehow prejudicial. It may be
prejudicial, but that’s why it’s flight evidence. It demonstrates his
consciousness of guilt, your Honor. Once again it’s relevant and admissible,
and [defense counsel] has not done what he was directed to do by the
Supreme Court in the 18th Judicial District.

[District Court]: All right. Well, I think I’m still obligated to examine the
relevant probative value of the evidence of – that’s going to be offered and
weigh this against the prejudice inherent in this type of evidence in light of
the actual need to introduce it. I still think I have that obligation under
Rule 404, even at this late juncture.

(Emphasis added.)

From context, it is clear both the State and District Court understood Strizich’s objection.

This Court should not be willing to so easily ignore “our overriding obligation to protect

the substantial rights of litigants when the basis for the objection was clear to the litigants

and the trial court.” Tome, ¶ 22. All parties clearly understood Strizich’s objection raised

Rule 403 concerns. Moreover, and contrary to the majority’s conclusion, the District Court

31
believed it was obligated to balance the probative value against the prejudicial effect. It

makes no functional difference whether that analysis was rooted under Rule 403 or

Rule 404. I would find Strizich’s Rule 403 objection properly preserved for our review

and conclude the unfairly prejudicial impact of the evidence outweighed its limited

probative value, assuming it had any at all.

¶61 The majority again cites Burk to foreclose Strizich’s argument that the evidence of

his flight violated Rule 403. However, Burk remains factually distinguishable from the

instant case. The evidence of flight in Burk concerned Burk’s “incredible story” that

blamed his absence at his initial trial on a car accident that he claimed occurred while

en route to his trial.

. Burk’s absence resulted in an

apparent delay of nearly one year from his original trial date.

. Burk testified that, after his car crashed into the Bitterroot River, he was

swept down river and hiked to Lolo Pass.

. Upon

reaching Lolo Pass, he saw no cars and proceeded to hike to Florence “the rest of that day

and all through the night in the rain and hail” before arriving “dry, calm and oriented” in

Missoula the following day to explain his absence.