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Date: 11-20-2020

Case Style:


Case Number: 2020 MT 283



Plaintiff's Attorney: Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
Attorney General, Helena, Montana

Marty Lambert, Gallatin County Attorney, Bjorn Boyer, Deputy County
Attorney, Bozeman, Montana

Defendant's Attorney:

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Bozeman, MT - Criminal defense lawyer represented defendant Renie Raymond Joseph Fillion with appealing his conviction entered in the Eighteenth Judicial District Court, Gallatin County, for felony Theft; felony Altering an Identification Number; and a misdemeanor count for Violation of a License Plate Requirement..

Nicholas Haskell (Haskell) is a motorcycle enthusiast and has owned custom
choppers, Supermotos, and antique dirt bikes. Haskell owned a 2008 KLX450R Kawasaki,
a rare model that Kawasaki only manufactured for a limited time. After Haskell purchased
the motorcycle, he customized many features which made the bike unique and valuable.
On May 3, 2016, Haskell drove his motorcycle to work in Bozeman, where it was stolen.
Haskell notified the Bozeman Police Department and placed an ad on Craigslist with a
photograph of the motorcycle, offering a $1,500 reward for information leading to its
¶4 Officer Engle of the Livingston Police Department received a call from
David Hames (Hames), a citizen who explained he may have seen a stolen motorcycle in
Fillion’s yard. Hames explained he had been at Fillion’s house looking at other items when
he saw a new motorcycle in Fillion’s yard. Hames was suspicious because he did not
believe Fillion could afford to purchase such an expensive motorcycle. Hames noted that
he saw a similar motorcycle on Craigslist, which offered reward money for information
leading to the return of the motorcycle. In response to Hames’ information, Officer Engle
went to Fillion’s residence and noticed a motorcycle near Fillion’s front door. Officer
Engle could not approach the residence because of Fillion’s pit bulls that were in the yard.
However, Officer Engle could see the motorcycle’s license plate and, after running a check
on the plate number, learned it was registered to a trailer rather than a motorcycle. With
that information, Officer Engle obtained a search warrant for the motorcycle. He
transported the motorcycle to the police department where Haskell identified the unique,
customized items of the motorcycle and said it was his. Officer Engle received a court
order to release the motorcycle to the Bozeman Police Department. Several weeks later
Haskell and a Bozeman police officer retrieved the motorcycle.
¶5 Numerous photographs of the motorcycle were taken after it was seized from
Fillion. The VIN on the bike had been scratched and altered, and when the altered VIN
was researched it came back to a 1981 Kawasaki and not the one stolen from Haskell. The
permanent registration sticker on the bike had also been scratched and altered.
¶6 On July 21, 2016, the State filed an Information charging Fillion with the instant
offenses. Prior to trial, the State returned the motorcycle to Haskell. In response, Fillion
filed a motion to dismiss the charges on the basis that the State failed to maintain a
chain of custody concerning a primary piece of evidence—the motorcycle. The State
responded that it would not be introducing the motorcycle as evidence during the trial, but
that the motorcycle was still available to inspect and that defense counsel did personally
inspect the motorcycle. The State also said it took multiple photographs of the motorcycle
prior to returning it to Haskell, which depicted its condition immediately after it was seized
from Fillion. The District Court held a hearing and denied Fillion’s motion to dismiss.
The District Court concluded Fillion advanced no actual theory or testing that Fillion could
rely on or perform if the motorcycle were still in the State’s possession.
¶7 The case went to trial in June of 2018. During Officer Engle’s testimony, Fillion
objected on hearsay grounds to Officer Engle’s explanation that he initially went to
Fillion’s residence in response to a citizen’s call from Hames. Ultimately, the District
Court overruled the objection, finding that the statement was being offered not for its truth,
but to explain the steps Officer Engle was taking in his investigation of a citizen’s call.
Significant to the issues here, the jury was fully instructed on the elements of each offense
and Fillion did not object to the adequacy or completeness of any instruction given by the
District Court. However, during jury deliberations, the jury submitted the following
question: [Does] falsifying a VIN number of a motor vehicle apply to a stamped number
on the actual vehicle or does altering a title or bill of sale fall under the same law?
Following discussion with counsel, the District Court instructed the jury to refer to the
instructions which had previously been given.
¶8 This Court exercises plenary review over constitutional questions, including
Brady violations. State v. Ilk, 2018 MT 186, ¶ 15, 392 Mont. 201, 422 P.3d 1219;
(see Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963)). A district court has broad
discretion in controlling the admission of evidence at trial; this Court reviews a district
court’s evidentiary ruling for an abuse of discretion. State v. Colburn, 2018 MT 141, ¶ 7,
391 Mont. 449, 419 P.3d 1196. This Court reviews a district court’s decision to provide
or deny the jury’s request for additional information for an abuse of discretion.
State v. Bieber, 2007 MT 262, ¶ 67, 339 Mont. 309, 170 P.3d 444.
¶9 1. Did the District Court correctly deny Fillion’s motion to dismiss, which was
based on the State’s alleged failure to preserve exculpatory evidence?
¶10 A failure by the State to disclose exculpatory evidence to a defendant is a violation
of the defendant’s Fourteenth Amendment guarantee of due process. Ilk, ¶ 29. To assert
a Brady violation, a defendant must establish: (1) the State possessed evidence, including
impeachment evidence, favorable to the defense; (2) the prosecution suppressed the
favorable evidence; and (3) had the evidence been disclosed a reasonable probability exists
that the outcome of the proceedings would have been different. State v. Weisbarth,
2016 MT 214, ¶ 20, 384 Mont. 424, 378 P.3d 1195 (citing Brady, 373 U.S. at 83). The
defendant bears the burden of proving each element of a Brady violation. Ilk, ¶ 30. The
State does not need to gather evidence to aid in the defense but may not frustrate or hamper
an accused’s right to obtain exculpatory evidence. State v. Belgarde, 1998 MT 152, ¶ 16,
289 Mont. 287, 962 P.2d 571.
¶11 Fillion asserts the State frustrated his right to obtain exculpatory evidence when it
released the motorcycle to Haskell who altered and used it for a month prior to Fillion
being charged with a crime. Fillion relies on State v. Colvin, 2016 MT 129, 383 Mont. 474,
372 P.3d 471 and State v. Halter, 283 Mont. 408, 777 P.2d 1313 (1989), to support his
position. In Colvin, Colvin was charged with attempted deliberate homicide when he shot
the victim who was seated in the driver’s side of his vehicle. Colvin claimed he was
holding the gun inside the driver’s window when it accidentally fired. In contrast, the
State’s theory was that it was shot from several feet outside the vehicle. The State released
the vehicle to the victim prior to trial without providing notice to defense counsel or the
court. Colvin, ¶¶ 8-9. This Court held that the vehicle itself was the crime scene and the
blood spatter and gunshot residue on it were important evidence for both the defense and
prosecution. Colvin, ¶ 20. The car had been driven for months and cleaned. Therefore,
the State’s release of the vehicle was a violation of Colvin’s right to due process.
Colvin, ¶ 24.
¶12 In Halter, Halter was charged with stealing a bull and illegally branding it.
Halter, 238 Mont. at 409, 777 P.2d at 1313. Before Halter’s expert could examine the
brand and make a comparison between the brand and Halter’s branding irons, the bull was
sold and slaughtered. Halter, 238 Mont. at 410, 777 P.2d at 1314. Halter moved to dismiss
the charges based on the State’s failure to preserve exculpatory evidence.
Halter, 238 Mont. at 409-10, 777 P.2d at 1314. This Court affirmed the district court’s
order dismissing the charges against Halter because Halter would be unable to adequately
defend himself since the bull had been slaughtered. Halter, 238 Mont. at 413,
777 P.2d at 1317.
¶13 Here, Fillion has failed to set forth a theory under which the return of the motorcycle
would have produced exculpatory evidence. He merely speculates that the return of the
motorcycle somehow destroyed favorable evidence. See State v. Robertson, 2019 MT 99,
395 Mont. 370, 440 P.3d 17 (holding that Robertson offered nothing to indicate the video
constituted favorable evidence). Fillion’s counsel inspected the motorcycle; there were
photographs taken of the motorcycle after it was seized; Haskell was amenable to allowing
another inspection; and, critically, the motorcycle was still available for inspection at the
time of trial. Fillion argues the actions of stripping off the black spray paint and removing
the stickers destroyed evidence favorable to his defense. However, this evidence was
captured, and documented thoroughly, in photographs.
¶14 To prove the State suppressed favorable evidence, Fillion had to offer some
explanation or theory of why the photographs and invitation for personal inspection of the
motorcycle were insufficient and amounted to a violation of his right to due process.
Fillion, who bears the burden of proving each element establishing a Brady violation, has
failed to prove the first element requiring that the evidence would have been favorable to
the defense. Having failed to prove the first Brady element, it is unnecessary to address
the remaining two.
¶15 2. Did the District Court properly allow an out-of-court statement offered for the
limited purpose of explaining an officer’s conduct?
¶16 “Hearsay is a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.”
M. R. Evid. 801(c). Hearsay is generally not admissible. M. R. Evid. 802. “A statement
is hearsay only when the immediate interference the proponent wants to draw is the truth
of the assertion on the statement’s face. If the proponent can demonstrate that the statement
is logically relevant on any other theory, the statement is nonhearsay.”
Siebken v. Vonderberg, 2015 MT 296, ¶ 22, 381 Mont. 256, 359 P.3d 1073. In
State v. Lawrence, 285 Mont. 140, 167, 948 P.2d 186, 202 (1997), we first considered
whether an out-of-court statement offered for the limited purpose of explaining an officer’s
conduct was hearsay. We adopted the reasoning of People v. Tenorio, 197 Colo. 137,
590 P.2d 952 (Colo. 1979), which explained:
The statements were elicited only to establish the officers’ reasons for
initially going to the park and for drawing their guns after arrival there. The
statements were not offered to show the truth of the content of the radio report
or to establish that the defendant did in fact possess a weapon.
Tenorio, 590 P. 2d at 958.
¶17 There is a caveat, however; an officer’s testimony is not admissible when it
“[e]ffectively points the finger of accusation at [the] defendant.”
Lawrence, 285 Mont. at 167, 948 P.2d at 202. The reasoning of the Ninth Circuit in
Busby v. U.S., 296 F.2d 328 (9th Cir. 1961), is likewise informative:
[W]hile it is clear that the testimony of officer McDonald concerned
out-of-court assertions by third persons (i.e., what others had said to him), it
is equally clear that his testimony was not admitted to prove the truth of the
matter asserted, i.e. that the appellants had actually done what others had said
they had done. This evidence was admitted merely to establish facts and
circumstances upon which officer McDonald could justify his routine
investigation and actions such as asking the appellants to step out of the
Busby, 296 F.2d at 332 (emphasis added).
¶18 Here, the State offered Hames’ statement to explain why Officer Engle went to
Fillion’s house in the first place. Hames’ statement was not offered for its truth and it did
not point the finger of accusation at Fillion. It merely established how the next step in the
investigation proceeded. Hames made initial contact with Officer Engle for the purpose of
referring Officer Engle to Fillion’s house. Once Officer Engle was on the sidewalk outside
of Fillion’s house he began to make his own personal observations, i.e. reading the license
plate on the motorcycle and confirming that the plates were licensed to a trailer and not the
motorcycle. From there, a search warrant issued. Thus, Hames’ statement was offered
only to show why Officer Engle went to Fillion’s residence and how the investigation
proceeded. Accordingly, it was not hearsay and the District Court was correct in holding
it was admissible.
¶19 3. Whether, after correctly instructing the jury, the District Court appropriately
exercised its discretion to refer the jury to instructions already provided?

¶20 When a court fully and correctly instructs the jury as to the law, it was not an abuse
of discretion to refuse to further instruct the jury. Bieber, ¶ 67.
Section 46-16-503(2), MCA, provides:
After the jury has retired for deliberation, if there is any disagreement among
the jurors as to the testimony or if the jurors desire to be informed on any
point of law arising in the cause, they shall notify the officer appointed to
keep them together, who shall then notify the court. The information
requested may be given, in the discretion of the court, after consultation with
the parties.
¶21 Fillion argues the District Court erred in referring the jury to instructions already
given when the jury requested clarification on the count charging Fillion with Altering an
Identification Number. The jury’s question concerned whether falsifying a VIN number
on a motor vehicle only applied to a stamped number or if it could refer to altering the title
or bill of sale as well. The District Court ultimately decided that providing an additional
instruction would create unnecessary confusion since Fillion was never charged with
altering a title or bill of sale.
¶22 The charge of Altering an Identification Number, contained at § 61-3-604(1), MCA,
and set forth in Jury Instruction 6, provides that a person may not “willfully remove[] or
falsif[y] an identification number of a motor vehicle, trailer, semitrailer, pole trailer, or
motor vehicle engine.” In contrast, the charge of Alteration or Forgery of Certificate of
Ownership or Certificate of Title, under § 61-3-603, MCA, provides: “a person who alters
or forges or causes to be altered or forged any motor vehicle, trailer, semitrailer, or pole
trailer certificate of ownership or certificate of title or any assignment of a certificate of
ownership or certificate of title or who holds or uses any certificate or assignment knowing
that the certificate has been altered or forged is guilty of a felony.” Although there may be
similarities between the two codified sections—§§ 61-3-603, -604(1), MCA—Fillion was
only charged with the crime of altering an identification number under
§ 61-3-604(1), MCA. We conclude the District Court did not abuse its discretion when it
refused to instruct the jury on an offense for which Fillion was not charged. While the
State presented evidence that the bill of sale was fraudulent and forged, Fillion was never
charged with the crime of altering a title or bill of sale. The District Court fully and fairly
instructed the jury initially and no objections were made by either party. Instructing the
jury to refer to instructions already given, to avoid the risk of confusion with an additional
uncharged offense, was not an abuse of discretion.

Outcome: The District Court correctly denied Fillion’s motion to dismiss based on the State’s
alleged failure to preserve exculpatory evidence. The District Court properly allowed an out-of-court statement offered for the limited purpose of explaining the officer’s conduct.

Finally, the District Court did not abuse its discretion, after it correctly instructed the jury and no objections were made by the parties, that the jury should refer to the instructions previously given to answer their question.


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