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State v. Ellison

Supreme Court of Montana

October 16, 2018

STATE OF MONTANA, Plaintiff and Appellee,
v.
LIONEL SCOTT ELLISON, Defendant and Appellant.

          Submitted on Briefs: August 29, 2018

          APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 14-0614 Honorable Blair Jones, Presiding Judge

          For Appellant: Chad Wright, Appellate Defender, Danny Tenenbaum, Assistant Appellate Defender, Helena, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant Attorney General, Helena, Montana

          Scott D. Twito, Yellowstone County Attorney, Julie Mees, Deputy County Attorney, Billings, Montana

          JIM RICE JUSTICE

         ¶1 Lionel Scott Ellison appeals his conviction of two counts of tampering with or fabricating physical evidence, and one count of impersonation of a public servant, after jury trial in the Thirteenth Judicial District Court, Yellowstone County. We affirm in part, reverse in part, and remand for further proceedings consistent with this Opinion. We restate Ellison's issues on appeal as follows:

1. Did the District Court abuse its discretion by admitting evidence related to Ellison's prior acts?
2. Did Ellison's counsel render ineffective assistance by failing to object, under § 46-11-410, MCA, to Ellison's conviction of two counts of tampering with or fabricating physical evidence?
3. Did the District Court err by imposing a "per count" surcharge for court information technology under § 3-1-317(1), MCA?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 On March 13, 2013, Ellison staged a crime scene in which he attempted to implicate Yellowstone County Detective Frank Fritz (Fritz), by tying the doors shut to the trailer home he shared with his parents, starting a small fire outside, and placing a knife on the ground outside the home with "Fritz" scribbled on it. The Fire Department was summoned and, during the investigation, Ellison reported he saw flames from his bedroom window but was unable to escape the house because the doors had been tied shut from the outside. Ellison and his parents claimed they saw someone who looked like Fritz or his "twin" in their yard on the night of the fire, and that the same man had been at their home several times before. They later made statements in the proceeding that Fritz was responsible for starting the fire at the home. At trial, Fritz and other officers testified that Fritz was investigating another crime scene elsewhere in Billings in the hours before, during, and after the fire at Ellison's home.

         ¶3 After testing, the Montana State Crime Lab determined the DNA found on the ropes tied to the doors of Ellison's home matched Ellison's DNA. Ellison was arrested on July 31, 2014. Later, soon after Ellison was released on bond, Ellison made phone calls to two employers in which he falsely identified himself as Fritz and maintained that they should not hire Ellison.

         ¶4 Ellison was charged with one count of arson, two counts of tampering with or fabricating physical evidence, and one count of impersonation of a public servant. Before trial, Ellison moved in limine to exclude evidence of any other crimes, wrongs, or acts pursuant to M. R. Evid. 404(b). These prior acts raised by Ellison included investigations by the Yellowstone County Sheriff's Office and Park County Sheriff's Office after Ellison staged his own abductions in 2008 and 2010, a conviction for arson in 2009, a conviction for misdemeanor theft in 2010, a conviction for Partner or Family Member Assault (PFMA) in 2010, and a conviction for two counts of Violation of an Order of Protection (VOP) in 2012. Fritz had investigated the PFMA and VOP cases, leading to charges against Ellison. Following Ellison's convictions in those cases, Ellison and his parents attempted to prosecute a civil lawsuit against Fritz and the Yellowstone County Sheriff's Office, alleging intimidation and intentional infliction of emotional distress.

         ¶5 The District Court partially granted and partially denied Ellison's motion, ruling that evidence relating to Ellison's staged abductions in 2008 and 2010, his conviction for arson in 2009, and his conviction for theft in 2010 was not admissible; but that "evidence of Ellison's past acts relating to Detective Fritz may properly be admitted," including the PFMA and VOP investigations, as well as evidence relating to the Ellisons' lawsuit against Fritz. The court reasoned:

Evidence that is inextricably linked to and explanatory of a fact in dispute may be admitted under the transaction rule in order to provide a comprehensive and complete picture of the commission of a crime [internal quotations and citations omitted]. . . . By making these accusations [that Fritz started the fire], Ellison and his parents made the other evidence concerning Detective Fritz relevant to show the source of Ellison's animosity toward Detective Fritz, as well as Ellison's motive to concoct the crime scene. The State's evidence relating to Detective Fritz-including his investigation of Ellison for prior convictions and the Ellisons' lawsuit against him-is thus relevant not for propensity purposes, but rather to show motive and provide ...

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