Full Opinion

09/22/2026 DA 24-0313 Case Number: DA 24-0313 IN THE SUPREME COURT OF THE STATE OF MONTANA 2026 MT 224 STATE OF MONTANA, Plaintiff and Appellee, v. ANDREW PIERCE LAKE, Defendant and Appellant. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDC-2017-135 Honorable Kathy Seeley, Presiding Judge COUNSEL OF RECORD: For Appellant: Nick K. Brooke, Stephens Brooke, P.C., Missoula, Montana For Appellee: Austin Knudsen, Montana Attorney General, Thad Tudor, Assistant Attorney General, Helena, Montana Kevin Downs, Lewis and Clark County Attorney, Mary Barry, Deputy County Attorney, Helena, Montana Submitted on Briefs: June 17, 2026 Decided: September 22, 2026 Filed: __________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of the Court. ¶1 Andrew Pierce Lake was originally convicted in 2018 in the First Judicial District Court, Lewis and Clark County, for attempted deliberate homicide of Ryan Zitnik. This Court reversed Lake’s 2018 conviction and remanded the case back to the District Court for a new trial. State v. Lake, 2022 MT 28, 407 Mont. 350, 503 P.3d 274 (Lake I). Lake was retried and convicted of attempted deliberate homicide. Lake now appeals his subsequent conviction. We affirm. ¶2 Lake presents the following issue on appeal: Whether the District Court erred by allowing testimony concerning Lake’s comments about child rape. FACTUAL AND PROCEDURAL BACKGROUND ¶3 This case is about a stabbing that occurred early in the morning on March 16, 2017, outside of The Jesters Bar (Jesters) in Helena, Montana. Ryan Zitnik (Zitnik) and Andrew Lake (Lake) were both regulars at Jesters and were acquainted for several years before Lake stabbed Zitnik. ¶4 Around 2:00 a.m. on March 16, 2017, Lake and Zitnik exchanged words as Lake was exiting Jesters. Witness accounts differed as to who instigated the altercation and the extent of the physical contact involved. Regardless, the following witnesses to the altercation: Zitnik, John Shook (the bartender), and Kevin Cravens (Cravens) all testified that they did not think a physical fight would result from the altercation. Lake testified about the altercation but did not indicate whether he thought a physical fight was likely to result. 2 ¶5 Immediately after the altercation, Lake exited Jesters. Less than five minutes later, Zitnik left Jesters through the same exit as Lake. After leaving Jesters, Lake and Zitnik re-engaged in another altercation where Lake ultimately stabbed Zitnik multiple times. Nobody witnessed their interaction after they exited the bar and immediately preceding the stabbing. Zitnik and Lake offer contradictory accounts of those moments leading up to the stabbing—each describing the other as the aggressor. To that end, Lake raised the affirmative defense of justifiable use of force (JUOF). ¶6 Cravens left Jesters shortly after Zitnik and was the sole third-party witness to the altercation between Zitnik and Lake. The sounds of grunting drew Cravens attention to the two men who, by that time, were clearly involved in a physical altercation. Cravens, upon realizing Zitnik was badly hurt, called 911. Cravens helped Zitnik back to Jesters where he and two others provided what aid they could to Zitnik until an ambulance arrived and transported Zitnik to St. Peter’s Hospital. Shortly after the stabbing, Lake was arrested, taken into custody, and interrogated. ¶7 Lake gave a statement to the police that Zitnik—who Lake alleged had previously slandered him—followed Lake out of Jesters on the night of the stabbing. When the police inquired into the content of the of the alleged slander, Lake revealed his child sex abuse comments. Lake’s sex abuse comments related to (1) his self-proclaimed nickname “skull fucker”; (2) his dream about raping a teenager; and (3) his joke about a black and blue five-year-old in the trunk of his car who hates sex. The State’s evidentiary use of Lake’s child sex abuse comments is the basis for this and the previous appeal. 3 Lake I ¶8 In pretrial proceedings in Lake I, Lake filed a motion in limine to exclude from evidence any reference at trial to his prior comments about child sex abuse. Subsequently, at a motions hearing, Lake conceded that a generic use of his child sex abuse comments was relevant to prove his motive for attempting to kill Zitnik. We held in Lake I that Lake’s motion, brief in support thereof, and oral argument at the motions hearing adequately preserved Lake’s M. R. Evid. 404(b), and 403 objections. ¶9 The issue on appeal in Lake I was whether the District Court erred by allowing the State to reference and elicit testimony about Lake’s prior child sex abuse comments in an explicit and repetitive manner that was unfairly prejudicial. In Lake I, we essentially bifurcated the issue into two separate questions: whether the District Court erred by allowing the State to admit and reference testimony about Lake’s child sex abuse comments under Rule 404(b); and, if admission was proper, whether the State’s use of the comments was permissible under Rule 403. We held it was not an abuse of discretion to deny “Lake’s motion in limine to categorically exclude any and all references to his prior child sex abuse comments and references.” Lake I, ¶ 31 (emphasis in original). We based this part of our holding in Lake I on the State’s asserted Rule 404(b) motive theory—that Lake tried to kill Zitnik because Zitnik slandered Lake to other bar patrons about Lake’s child sex abuse comments. However, this Court reversed Lake’s conviction and remanded for a new trial. We based our decision to reverse on our conclusion that the District Court abused its discretion by allowing the State to reference and elicit testimony regarding Lake’s child 4 sex abuse comments in an explicit and repetitive manner that was unfairly prejudicial under Rule 403. ¶10 There were three comments relating to child sex abuse attributed to Lake during the trial: (1) his self-proclaimed nickname “skull fucker” (including the origins of the nickname and Lake’s references to his nickname); (2) his dream about raping a teenager; and (3) his joke about a black and blue five-year-old in the trunk of his car who hates sex. Before opening statements, the District Court gave a limiting instruction that generically referenced the child sex abuse comments. The State then previewed the comments in its opening statement. The State’s preview started with generic references to the comments, but then explicitly referenced Lake’s rape dream. We summarized the State’s use of Lake’s comments throughout the rest of the trial as follows: (1) [Lake] referred to himself as ‘skull fucker’; (2) the name and term referred to ‘fucking’ the skull of a child; (3) [Lake’s] ‘skull fucker’ nickname and references were well known to regulars at the bar; (4) [Lake] previously made a comment directly to Zitnik about ‘fucking’ a child’s skull which offended Zitnik and in regard to which he discussed his resulting concerns about [Lake] with others in the bar; (5) [Lake] sang a song in the bar about ‘skull fucking’; (6) [Lake] repeatedly yelled out ‘skull fucker’ in the bar; (7) [Lake] told a joke at the bar about a child in the trunk of his car who didn't like sex; (8) [Lake] previously disclosed to Cravens and another that he had a dream about raping a 14-year-old girl which then offended Cravens and caused him to dislike [Lake]; and (9) Cravens discussed [Lake’s] child rape dream with other regulars, including Zitnik, which then furthered poisoned Zitnik against [Lake]. Lake I, ¶ 14. Current Appeal ¶11 Lake did not file a motion in limine on retrial to limit or exclude the State’s use of his child sex abuse comments. The only pretrial discussion about Lake’s child sex abuse 5 comments occurred on October 6, 2023, at a pretrial motions hearing. The primary purpose of the hearing was to decide the State’s motion in limine regarding evidence unrelated to this appeal. The State eventually raised the issue of Lake’s child sex abuse comments. Together, the parties and the court reached a vague agreement on their use and admissibility. Importantly, Lake informed the State and the Court that he would make contemporaneous objections, at his discretion, during the trial. We set forth the parties’ and court’s discussion which informs the preservation issue: STATE: [O]ur plan is, which I think we have Mr. Brooke’s agreement on this, is that [the two jokes and the nickname] are going to come in one time. . . . [A]nd later on when we need to refer to them . . . with witnesses we will refer to things like, you know, he made distasteful jokes about child sexual abuse, and then we’re moving on . . . but it doesn’t become the focal point of the trial. The reason why it comes in at all is because it was, by the defendant’s own admission, why he believed that Mr. Zitnik targeted him was because of these jokes[.] Do you have anything to add Mr. Brooke? BROOKE: I’ll add, yeah, I agree with much of what the State has said. The first trial in this matter the State relied heavily not only on reciting the jokes themselves but quizzing people as to how funny they were. I don’t expect the State intends to do that here. I think there are limited reasons to bring it in as to both of our cases because it gets talked about by a number of witnesses. I will reserve – I guess I’ll just say, I’ll object if I think it’s getting too cumulative or too prejudicial. COURT: So you believe it’s going to come in, those topics are going to come in to some degree but you’re going to try to limit them? STATE: That is correct. COURT: Okay. STATE: Clearly it’s been made clear by the Supreme Court that we should limit them, and so that is our plan. And I hope that Mr. Brooke won’t have to object, but if he does I will yield. 6 ¶12 The State sought to introduce the same three comments relating to child sex abuse as they did in the original trial: (1) his self-proclaimed nickname “skull fucker”; (2) his dream about raping a teenager; and (3) his joke about a black and blue five-year-old in the trunk of his car who hates sex. ¶13 The State generically referenced Lake’s child sex abuse comments during its opening statement. Later, the District Court referenced them in the limiting instruction it gave just before direct examination of the State’s witness, Detective Randy Ranalli (Ranalli): You will hear evidence that the defendant made statements or jokes about child sexual abuse. The only purpose of admitting that evidence is to show proof of motive. That evidence will not be admitted to prove his character or to show that he acted in conformity therewith. You may not use that evidence for any other purpose than to determine motive. The defendant is not being tried for making those statements. He may not be convicted for any other offense other than that charged in this case. For the jury to convict the defendant of any other offense than that charged in this case may result in unjust double punishment of the defendant. You may proceed. ¶14 Ranalli was expected to be the first witness to offer testimony regarding Lake’s comments. However, the State bifurcated Ranalli’s testimony, and Cravens was the first witness to provide explicit testimony about Lake’s comments, specifically about Lake’s rape dream: STATE: [A]t some point did your relationship with Lake change from being positive to acrimonious? CRAVENS: Yeah. STATE: Why did that happen? CRAVENS: He made a comment about raping a kid. 7 STATE: Okay. CRAVENS: That was it. . . . STATE: Why was one comment so significant? CRAVENS: Because he was over the rainbow excited about a dream he had about raping some red haired – I don’t – 13, 14 something like that. . . . STATE: [W]hat do you remember of that moment when he told you about this dream and was over the moon excited about it? CRAVENS: Disgust, jaw hit the floor. Like what the fuck, something along those lines. . . . STATE: [A]nd when he told you this joke, was he doing anything with his body? CRAVENS: It wasn’t a joke. STATE: I appreciate that, and I’ll rephrase. When he made this comment to you about a dream, did he do anything with his body? CRAVENS: Yeah. STATE: Can you demonstrate to the jury? CRAVENS: I’m not demonstrating that. STATE: Okay. Did he make like a humping motion? CRAVENS: Yeah. He was thrusting. . . . STATE: [A]nd what was your reaction to this, besides disgust and jaw dropping? I mean, did you have an interaction with him immediately? 8 CRAVENS: I walked away. Lake did not lodge an objection to the foregoing testimony. ¶15 Later, Detective Ranalli was recalled to the stand where he then offered testimony regarding the joke about the five-year-old boy and generic references to Lake’s nickname: STATE: Did he talk to you about making statements to shock people? RANALLI: Yes, so Andrew Lake mentioned that he liked to shock people and say things for shock value. STATE: Was there a statement about a five-year-old child? RANALLI: Yes there was. STATE: Do you recall what that was? RANALLI: I do, Andrew Lake asked – BROOKE: I’d object to relevance. STATE: Your honor it goes to the motive of having alienated, and it goes to the relationship between Zitnik and Lake. COURT: Was this statement reportedly made to Zitnik? STATE: Yes, your honor. . . . COURT: All right. Overruled. STATE: And can you tell us the comments Mr. Lake made? RANALLI: Mr. Lake asked, what is black and blue and hates sex. Detective Lawrence and I just sat there, and he responded with, the five-year-old boy in my trunk. STATE: Did Mr. Lake also tell you he had a nickname in the military? 9 RANALLI: Yes, going back with the shock value. And he had a nickname while he was in the Army, and his nickname he told us – BROOKE: I’m going to object to relevance on this as well. STATE: And do you understand that Mr. Lake shared this nickname with patrons of the bar? RANALLI: Yes. . . . STATE: Okay. Were there any songs related to this nickname? RANALLI: Yes, he did mention some songs related to the nickname. COURT: I’m sustaining the objection. You can go no further with that. ¶16 Andrea Cross Guns (Cross Guns), another Jesters’ patron, and Zitnik provided the other critical testimony regarding Lake’s child sex abuse comments. Cross Guns testified as the next witness after Ranalli was re-called. STATE: [I] want to direct your attention to a particular conversation [with Lake] that . . . involved Mr. Ryan Zitnik. Is that sounding familiar to you? . . . .What happened in there, what was that conversation about? CROSS GUNS: Mr. Lake told me that he – that he and Mr. Zitnik had not been getting along and that Mr. Zitnik threatened to punch him in the face, or beat him up, something like that if he continued with telling some jokes that Mr. Zitnik did not like. . . . STATE: Okay. And these are jokes about being inappropriate with children? CROSS GUNS: I believe that was the nature of those jokes. STATE: Okay. And so, what was your suggestion to him, Mr. Lake? CROSS GUNS: I suggested he cool it on the – on those jokes[.] 10 STATE: Okay. All right. And so, your advice was to just stop, just stop telling these things then? CROSS GUNS: Yes. STATE: All right. During this conversation, did Mr. Lake – after this, after you said the suggestion of stop telling the jokes, did he make any statements about hurting Mr. Zitnik? CROSS GUNS: Yes, yeah, he did. STATE: What was that? . . . CROSS GUNS: That if – if Mr. Zitnik tried anything, that Mr. Lake was going to stab him. ¶17 Zitnik testified about the effect Lake’s comments had on their relationship: STATE: And when you all first began getting to know each other did [you and Lake] eventually become friends? ZITNIK: I don’t take on friends real quick, but yeah, we were definitely acquaintances and I guess I could call him a friend maybe. . . . STATE: Okay. So at some point, it didn’t – it wasn’t a positive relationship that you had with Mr. Lake. Fair to say? ZITNIK: Yeah. STATE: What happened? ZITNIK: Quite a bit, but I think he said some jokes and inappropriate things I didn’t care to listen to or be around. STATE: Okay. Were these inappropriate things comments about child sex abuse? ZITNIK: That’s exactly how I perceived it. 11 . . . STATE: So, at what point did you let him know that you don’t want him to say these things? ZITNIK: When I realized that – I don’t know. I felt he wasn’t really joking about it when someone repeats that kind of stuff. STATE: Okay. So you started to have some real concerns, and then you said what to him? ZITNIK: I just asked him to stay away from me or – it’s pretty much – you know, if you’re going to talk like that, you can stay away from me is what I would say. . . . STATE: All right. So if this stabbing is in March of 2017, when does you relationship with him dissolve where you tell him to stay away from you, is it – and I’m not asking for a specific day, I’m just asking generally. Was it a couple of years before, weeks before? ZITNIK: Before what? STATE: Before he stabbed you. ZITNIK: It had probably been a year. I really don’t remember, but it was quite a while I thought I handled it. STATE: All right. Well, after you told him to leave you alone, what happened? ZITNIK: Nothing. You know, I probably mentioned it to a few other people and they were like, aw, just let it go or brush it off. I did my best to do that. STATE: You did your best to brush it off? ZITNIK: Yeah. STATE: Did anything prevent you from totally brushing it off? ZITNIK: Yeah, it never really ended. 12 STATE: What do you mean it never really ended? ZITNIK: I’d still hear those – hear him. And he’d still approach me and, I guess, poke at me. . . . STATE: Okay. So he continued to say these jokes within your earshot, essentially? ZITNIK: Yeah. There was a little more than that, but yeah. Like, if I moved to the other side of the bar, then all of a sudden he’d be at the other side of the bar kind of stuff. ¶18 Lake also testified in his own defense. He testified that Zitnik blew up at him “out of the blue,” saying “you’re sick, you’re sick, you’re disgusting.” According to Lake, this initial blow up between he and Zitnik happened at least one year before the stabbing. Lake testified that his relationship with Zitnik deteriorated from that point forward. ¶19 The final reference to Lake’s child sex abuse comments came from the State in its closing statement: But the show for Lake anyway, that started years before March 16th of 2017. If you recall, he began building this persona at Jesters bar that he was not to be messed with, okay. He told very shocking statements about child abuse. He had an unsavory nickname for himself. And the reaction at Jesters was ignoring him, but he ratcheted it up. Kevin Cravens talked about how around Christmas time a couple of months before this assault he was out in front of Jesters smoking with a friend and Mr. Lake was there, and he relayed that the defendant was over the moon – or I can’t remember his expression that he used, but he was obviously very excited to share with Kevin, who had a 14-year-old daughter, that he had a dream about raping a 13- or 14-year-old daughter. And this time it wasn’t just his words. He showed you the graphic movements that he made, demonstrating that assault with that child in his dream. And what was Kevin Craven’s reaction and that other man? They put down their cigarettes, and they went inside, and they ignored him. 13 ¶20 At the end of the closing statements, the District Court did not issue an additional limiting instruction. The jury retired to deliberate and returned a guilty verdict for the charge of attempted deliberate homicide. Lake was sentenced to forty years in Montana State Prison with no time suspended. STANDARD OF REVIEW ¶21 District courts have broad discretion in determining the relevance and admissibility of evidence; therefore, we review a district court’s evidentiary rulings for abuse of discretion. State v. Derbyshire, 2009 MT 27, ¶ 19, 349 Mont. 114, 201 P.3d 811. A district court abuses its discretion when it acts arbitrarily, without conscientious judgment, or exceeds the bounds of reason, resulting in substantial injustice. Derbyshire, ¶ 19. DISCUSSION ¶22 Lake argues that the District Court erred because the danger of unfair prejudice from the testimony about his child sex abuse comments substantially outweighed its probative value and should have been excluded under Rule 403. Lake concedes that, compared to the first trial, there were fewer instances where the State relied on Lake’s comments about child sex abuse and no testimony revealing Lake’s “skull fucker” nickname or its origins. Still, because the State elicited explicit testimony regarding the rape dream and the joke about the five-year-old, Lake maintains that the danger of unfair prejudice from the comments remained very high. In terms of probative value, Lake argues that the probative value of his comments was low because neither he, Zitnik, nor Cravens, expressly identified the comments as the reason for the stabbing. 14 ¶23 Preliminarily, we must address whether Lake adequately preserved the issue of admissibility for each of the comments relating to child sex abuse. The general rule is that a defendant waives an objection and may not seek appellate review if they fail to make a contemporaneous objection to an alleged error in the trial court. State v. Ankeny, 2010 MT 224, ¶ 35, 358 Mont. 32, 243 P.3d 391. However, a motion in limine can preserve an issue for appeal in some instances even without a contemporaneous objection made at trial. Ankeny, ¶ 35. ¶24 Critical to our present analysis is the procedural distinction between this case and Lake I. In Lake I, we found that Lake’s pretrial efforts to exclude the disputed evidence through a motion in limine sufficiently preserved his evidentiary objections without the need for contemporaneous objections at trial. Accordingly, this Court’s review was not confined to instances where Lake objected at trial. Instead, we were able to consider the disputed evidence throughout the trial record. ¶25 Here, unlike in Lake I, Lake did not submit a motion in limine to exclude all references to his child sex abuse comments. The only pretrial discussion about the use and admissibility of Lake’s comments occurred when the State brought it up at a pretrial motions hearing for its own motion to exclude. At the motions hearing, the State said that the comments would come in once and that subsequent references would be generic. In response, Lake agreed. Additionally, Lake said that he would object when he thought the testimony was getting too cumulative or too prejudicial. Therefore, for purposes of preserving the District Court’s evidentiary rulings for appeal, the onus was on Lake to 15 make objections which would provide the District Court the opportunity to make a ruling that we could review. ¶26 Like the first trial, the State attempted to admit explicit testimony regarding all three of Lake’s comments. Lake only objected to the explicit testimony regarding his nickname and the joke about the five-year-old. Lake did not object to the explicit testimony regarding his rape dream. Importantly, the State elicited the testimony about the rape dream first, and Lake did not object. So, even if we were to treat Lake’s objections to the testimony about the nickname or the joke as an objection to the use of Lake’s comments as a whole, the objection came too late because the State had already elicited the rape dream testimony. ¶27 Therefore, our analysis is confined to the particular instances where Lake objected to disputed evidence upon retrial, specifically his objections to testimony about the nickname and the joke. ¶28 Other acts evidence that is properly admitted for non-propensity purposes under Rule 404(b) “must be viewed in concert with Rule 403 which allows the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice.” State v. Franks, 2014 MT 273, ¶ 15, 376 Mont. 431, 335 P.3d 725. ¶29 To assess the relative probative value of particular evidence against the danger of unfair prejudice under Rule 403, courts should consider the evidence in question and any actually available substitutes. Lake I, ¶ 41. Courts must also consider the proponent’s need for evidentiary richness, narrative integrity, and the prerogative for choosing evidence. Lake I, ¶ 41. Still, if an alternative is available, with substantially the same or greater probative value but a lower danger of unfair prejudice, sound judicial discretion would 16 discount the probative value of the more prejudicial evidence offered, and exclude it, if its discounted value is substantially outweighed by the danger of unfair prejudice. Lake I, ¶ 41. ¶30 As a result, the probative value of evidence under Rule 403 is distinct from its relevance under Rule 401 because it includes consideration of comparative evidentiary alternatives, especially in the context of Rule 404(b) when evidence has a legitimate purpose and an inherently illegitimate tendency or effect. Lake I, ¶ 41. Probative value is the degree to which one fact tends to make probable another posited fact. Probative value, Black’s Law Dictionary 12th ed. 2024). ¶31 Here, the State’s relevant purpose for admitting Lake’s comments was to prove that Lake had a motive to kill Zitnik. The most distilled version of the State’s theory is that Lake made comments about child sex abuse that repulsed and worried Zitnik (he was worried that Lake was not safe to have around children); that Zitnik ultimately started sharing his worry with other bar patrons; that Lake found out what Zitnik was saying; and that he tried to kill Zitnik for what he was telling the other bar patrons. Thus, under the State’s theory, the fact that Lake made these comments is probative of Lake’s motive to kill Zitnik; without it the State’s theory fails. ¶32 However, in our view, generic testimony about Lake making child sex abuse comments constituted an available evidentiary alternative. Generic testimony would have provided sufficient evidentiary richness and narrative integrity for the jury to grasp the role that Lake’s comments played in the State’s theory of events. Hence, as an alternative, 17 generic use of the comments would have had substantially similar probative value and less or minimal danger of unfair prejudice. ¶33 Rule 403 only applies to evidence that poses a danger of unfair prejudice. Lake I, ¶ 32. “[O]therwise admissible evidence generally poses a danger of unfair prejudice only if of a type that tends or is likely to arouse or provoke jury disdain and hostility for the other party without regard to its probative value in the context of the other evidence in the case.” Lake I, ¶ 32. “The need and demand for careful consideration and application of Rule 403 is particularly critical in the case of other bad acts evidence because, even when otherwise validly admissible for a non-propensity purpose, such evidence is inherently prejudicial insofar that it impugns or has the tendency to impugn the character of the accused based on matters not directly at issue, thus arousing or provoking hostility against him or her without regard to its probative value, thereby inviting or tempting the jury to find guilt on an improper basis.” Lake I, ¶ 32. “The inherent danger of unfair prejudice from prior bad acts is particularly acute when the bad acts evidence pertains to child molestation.” Lake I, ¶ 32. ¶34 Here, the explicit recitations of Lake’s comments concerning child sexual abuse pose a substantial danger of unfair prejudice. The content of the comments is very likely to animate a jury’s perception of Lake as someone who has a prurient interest in child sexual abuse. Child sexual abuse is among the most socially and morally condemned forms of conduct. Thus, explicit recitations of Lake’s comments would almost certainly provoke jury disdain and hostility toward Lake without regard for probative value and would tempt a jury to find guilt on an improper basis. Therefore, admitting explicit references to Lake’s 18 child sex abuse comments as other bad acts evidence under Rule 404(b) is evidence that poses an acute danger of unfair prejudice under Rule 403. ¶35 Trial judges are in the best position to evaluate the admissibility of evidence and are accorded wide discretion to make those determinations—particularly in the context of Rule 403—because it requires “on-the-spot balancing of probative value and [unfair] prejudice, potentially to exclude . . . some evidence that has been found to be factually relevant.” State v. Peterson, 2024 MT 5, ¶ 21, 415 Mont. 34, 541 P.3d 776; Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S. Ct. 1140, 1145 (2008) (citing 1 S. Childress & M. Davis, Federal Standards of Review at § 4.02, p. 4–16 (3d ed. 1999)). “The existence of a motive, and the underlying nature and state of the prior relationship between the accused and an alleged victim, is . . . generally relevant to an accused’s ‘state of mind and intent’ when JUOF is at issue.” Lake I, ¶ 28 (quoting State v. Weinberger, 204 Mont. 278, 292, 665 P.2d 202, 210 (1983)). Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. M. R. Evid. 403. “The Rule 403 balancing test favors admission because the [danger] of unfair prejudice must substantially outweigh the evidence’s probative value.” Peterson, ¶ 21. Nevertheless, this Court has repeatedly warned district courts, and the State, to exercise great caution in the use of prior acts evidence regarding child sex abuse. Lake I, ¶ 32. ¶36 Here, Lake objected to testimony about his nickname and his joke about the five-year-old in the trunk of his vehicle. Though evidence of Lake’s rape dream came in, he did not object to it. Thus, in the absence of a motion in limine, only the objections to Ranalli’s testimony about the nickname and Ranalli’s testimony about the joke warrant 19 further discussion. These are the principal instances where the District Court made its evidentiary rulings. ¶37 Regarding the nickname, Lake objected to relevance before Ranalli could explicitly say the name. Though the District Court did not immediately sustain the objection, the State came to its senses and made no further attempts to explicitly reveal Lake’s nickname. Later, when the State’s line of questioning about the nickname began to get out of line, the District Court sustained the objection and ended the inquiry. Ultimately, only generic references to Lake’s nickname and its origins were presented to the jury. The District Court’s decision to admit generic testimony about the nickname, which—as an evidentiary alternative—carried full probative value and minimal danger of unfair prejudice, was not an abuse of discretion. It was within reason for the District Court to judge that the danger of unfair prejudice from the generic testimony about the nickname did not substantially outweigh its probative value. ¶38 What remains is the testimony regarding the “joke” of a child being in Lake’s trunk who did not like sex. Lake objected to the joke’s relevance before Ranalli could recite it. The District Court proceeded to ask whether the statement (the joke) was reportedly made to Zitnik. After the State confirmed Lake reportedly made the statement to Zitnik, the District Court overruled Lake’s objection and Ranalli recited the joke. Though the explicit recitation of the joke posed an acute danger of unfair prejudice, it remained probative of the fact that Zitnik and Lake’s relationship deteriorated. The only explicit evidence of child sex abuse that was before the jury—and objected to—was the evidence pertaining to Lake’s joke. The joke was probative of the tension and hostility between Zitnik and Lake 20 and relevant to Lake’s defense of JUOF. Therefore, given that Rule 403 is an evidentiary rule that favors admission, and applying the deferential abuse of discretion standard, we cannot conclude, based on this record, that the District Court abused its discretion in finding that the danger of unfair prejudice from the joke did not substantially outweigh its probative value. CONCLUSION ¶39 We conclude that the District Court carefully considered both the probative value and prejudicial effect of the bad acts evidence pertaining to the nickname and the joke. The court labored to stay within the boundaries of Lake I and did not abuse its discretion in allowing the limited references to Lake’s sex abuse evidence. Lake I explicitly held that the evidence was not categorically inadmissible. Compared to Lake I, there were fewer instances where the State relied on Lake’s comments about child sex abuse and less danger of unfair prejudice. ¶40 Affirmed. /S/ LAURIE McKINNON We Concur: /S/ CORY J. SWANSON /S/ KATHERINE M. BIDEGARAY /S/ INGRID GUSTAFSON /S/ JIM RICE 21