## Facts

- Bari Lynne Losson shot and killed her husband, Rick Losson, and asserted self-defense.
- To rebut self-defense, the State offered Rick’s out-of-court statements through three witnesses:
  - A counselor testified Rick said Bari had threatened to kill him in the past.
  - Rick’s employer testified Rick said Bari would kill him if he moved out.
  - A Naval Reserves officer testified Rick sought information about returning to active duty because he was afraid Bari would kill him.
- The trial court admitted the statements with limiting instructions that the jury could consider them only for Rick’s state of mind, not as proof of Bari’s intent or that she would kill him.
- A Yellowstone County jury convicted Bari of mitigated deliberate homicide.

## Issues

1. Whether the trial court erred by admitting the victim’s out-of-court statements expressing fear of the defendant and concern she would kill him, offered to rebut self-defense.
2. Whether the statements fell within the Montana Rule of Evidence 803(3) state-of-mind exception rather than being impermissible hearsay used substantively against the defendant.
3. Whether limiting instructions sufficiently reduced unfair prejudice and avoided improper use inconsistent with confrontation principles.
4. Whether proceeding with homicide charges after the defendant withdrew an earlier plea violated double jeopardy.

## Decision

- The Montana Supreme Court affirmed the conviction.
- The court held the victim’s statements were admissible under Rule 803(3) to show the victim’s then-existing fear and state of mind.
- The court held the trial court did not abuse its discretion by admitting the statements with limiting instructions, and no reversible prejudice was shown.
- The court rejected the double jeopardy claim because the defendant voluntarily withdrew the earlier plea, allowing the State to proceed.

## Legal Principles

- Under Mont. R. Evid. 803(3), a declarant’s then-existing emotional condition (including fear) is admissible as a hearsay exception when relevant.
- In a homicide case where the defendant claims self-defense, the victim’s state of mind may be relevant to whether it is likely the victim was the aggressor.
- Victim fear statements may be admitted for the limited purpose of proving the victim’s state of mind, not as proof of the defendant’s intent or conduct; clear limiting instructions are central to confining the jury’s use of the evidence.
- A defendant’s voluntary withdrawal of a plea may permit the State to resume prosecution without violating double jeopardy, absent a final adjudication barring further proceedings.

## Conclusion

The court upheld admission of the victim’s fear statements under the state-of-mind hearsay exception to rebut self-defense where the jury was repeatedly instructed to consider the statements only for the victim’s state of mind, and it held that prosecution after the defendant withdrew a prior plea did not violate double jeopardy.


State v. Losson, 865 P.2d 255 (Mont. 1993)