State v. Howell
| Citation | 254 Mont. 438,839 P.2d 87 |
| Decision Date | 16 November 1992 |
| Docket Number | No. 91-559,91-559 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Joseph Allen HOWELL, Defendant and Appellant. |
| Court | United States State Supreme Court of Montana |
James A. Haynes, Hamilton, for defendant and appellant.
Marc Racicot, Atty. Gen., Cregg W. Coughlin, Asst. Atty. Gen., Helena, and George H. Corn, Ravalli County Atty., Hamilton, for plaintiff and respondent.
Defendant appeals from his conviction on May 6, 1991, of the crimes of sexual intercourse without consent, sexual assault, and indecent exposure committed upon T.S., a nine-year-old girl, between December 25, 1990, and February 7, 1991. Following a jury trial in the Fourth Judicial District Court of Ravalli County, defendant was sentenced to a total of 60 years in the Montana State Prison without benefit of parole. An amended judgment was entered on November 20, 1991. The District Court denied defendant's motion for a new trial. The Defendant appeals. We affirm.
The issues are:
1. Did the District Court erroneously instruct the jury that it could consider evidence of defendant's other crimes as proof of a "continuous pattern of conduct" under Rule 404(b), M.R.Evid.?
2. Did the District Court err by excluding the victim's past sexual history under the rape shield statute, Sec. 45-5-511, MCA?
3. Did the District Court err in instructing the jury that the charges were distinct offenses to be determined separately, rather than as lesser included offenses?
4. Does sufficient evidence support the jury verdict?
The State's amended information charged defendant with committing the offenses of which he was convicted on or between December 25, 1990, and February 7, 1991. The defendant filed a partial alibi defense notice because he was in California visiting his mother from the week before Christmas until the first week of January 1991.
On April 16, 1991, the State filed a notice of intent to introduce evidence of other crimes, wrongs or acts in order to support proof "on the issue of the Defendant's identity, intent, state of mind, and that the Defendant's acts were consistent with continuous conduct, a common scheme, plan, or system." The notice stated its intent to introduce two prior convictions involving female minors for sexual assault and sexual intercourse without consent occurring in 1976 and 1978. The notice also specified the intent to use defendant's admissions to prison officials during psychological evaluations for parole in which he gave detailed accounts of numerous sexual assaults of female minors similar to the acts charged in this case.
In response, defendant filed a motion in limine to bar introduction of prior acts evidence. Prior to trial, the District Court held a hearing on the motion and then denied it. Prior to each occasion on which evidence of prior acts was introduced, the District Court gave the following cautionary instruction:
The State will now offer or has offered evidence that the defendant at another time engaged in other crimes, wrongs and acts. That evidence was not admitted to prove the character of the defendant in order to show he acted in conformity therewith.
The only purpose of admitting that evidence was to show either proof of the defendant's motive in this case; or proof of opportunity; or proof of the Defendant's intent; or proof that the crimes were committed knowingly; or proof of the defendant's identity; or proof of absence of a mistake or accident; or proof of a continuous pattern of conduct. You may not use that evidence for any other purpose.
The defendant is not being tried for these other crimes, wrongs or acts. He may not be convicted for any other offense 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. [Emphasis added.]
Jury Instruction No. 6. Defendant objected to that part of the instruction which permitted consideration of prior acts for "proof of a continuous pattern of conduct."
Prior to trial the court also considered the State's motion in limine to exclude evidence of the victim's prior sexual conduct pursuant to the rape shield statute, Sec. 45-5-511, MCA. Defendant objected to the exclusion because he wanted to introduce evidence of past sexual abuse by her natural father to show: veracity, accuracy of recall, prior knowledge of sexual terms such as "dick," and recognition of semen, tendency or opportunity to fabricate or exaggerate, and to rebut the State's "lost innocence" argument. The District Court granted the State's motion to exclude evidence of the prior sexual abuse and did not rule on defendant's motion for reconsideration. Defendant filed a notice of his intention to challenge the constitutionality of Sec. 45-5-511, MCA.
The District Court also granted defendant's pretrial motion to prohibit any treating physician, therapist, psychologist, teacher, or social worker from testifying about the identification of the defendant, and also the reliability or credibility of the victim. However, the court reserved a ruling to allow such testimony in case the victim's credibility was attacked.
Defendant stipulated to the fact that he was incarcerated in either the State Hospital at Warm Springs or the Montana State Prison from August 2, 1978, to June 8, 1989. Testimony at trial established that after his discharge, he moved to an apartment in Corvallis, a short distance from an elementary school. Defendant's neighbor contacted the police in January 1991 after he observed T.S. entering defendant's apartment on two occasions. He reported that after she entered the apartment, the window blinds were drawn and the music turned up. Deputy Sterling Maus responded to the report by visiting with T.S. and her mother. Maus testified that T.S. told him that defendant touched her pubic area. Deputy Pat Richie, who continued the investigation, testified that T.S. described one incident of oral intercourse, which occurred on February 8, 1991.
Defendant moved to dismiss the sexual intercourse without consent charge, based on Deputy Richie's testimony that the only incident of oral intercourse reported occurred on February 8, 1991, and therefore, was outside the charging dates of December 25, 1990 through February 7, 1991. The District Court denied the motion.
T.S. is an emotionally underdeveloped nine-year-old girl who was assigned three school counselors to address her needs. T.S. testified that beginning in the fall of 1990, at defendant's request, she would go to his apartment almost daily where he would remove her clothing, strap her to the bed, unzip his pants, and rub his penis against her vagina. On occasion she said he would masturbate on her, or force her to perform oral sex. She said that defendant would close the blinds and put on music. She stated that defendant gave her candy or money and left her notes. T.S.'s parents found a note written before Christmas stating:
Say how would you like to make twenty dollars. Don't let anybody see this, this is between you and I. Don't talk to anyone about this note. Don't let anyone see it. OK
After comparing the note to a handwriting exemplar from defendant, a handwriting expert identified the handwriting as that of the defendant.
Brad Fowler testified that he hauled water from defendant's apartment every evening around 5:00 to 5:30 during the last week in January and that he never saw T.S. present, although once defendant mentioned to Fowler that T.S. would be walking by at that time. Defendant also admitted to Fowler that he had given T.S. candy and money. Kathy Ostrander, supervisor for the Department of Family Services for Ravalli County, stated that Fowler told her that one time when he was over at defendant's getting water he was asked to leave because the defendant expected T.S. to arrive soon. Fowler testified that defendant asked him not to come over from 5:00 to 5:30 because he liked to relax after work.
At the close of evidence, defendant objected to the State's proposed Instruction No. 14 stating that the offenses charged were distinct offenses to be determined separately by the jury. The District Court adopted No. 14 and rejected defendant's proposed Instruction No. 1 which provided that the charges were not separate, but alternative charges, so that if defendant was found guilty, then the jury must determine which one of the three charges was committed, and find him not guilty of the other charges.
After considering all the facts, the jury found defendant guilty of all three separate charges. The District Court denied his motion for a new trial. Defendant appeals.
Did the District Court erroneously instruct the jury that it could consider evidence of defendant's other crimes as proof of a "continuous pattern of conduct" under Rule 404(b), M.R.Evid.?
Defendant contends that the procedural protections under Just were violated. These protections are:
(a) Evidence of other crimes may not be received unless there has been written notice to the defendant that such evidence is to be introduced.... Additionally, the notice to the defendant shall include a statement as to the purposes for which such evidence is to be admitted.
(b) At the time of the introduction of such evidence, the trial court shall explain to the jury the purpose of such evidence and shall admonish it to weigh the evidence only for such purposes.
(c) In its final charge, the court should instruct the jury in unequivocal terms that such evidence was received only for the limited purposes earlier stated and that the defendant is not being tried and may not be convicted for any offense except that charged, warning them that to convict for other offenses may result in unjust double punishment.
State v. Just (1979), 184 Mont. 262, 274, 602 P.2d 957, 963-64.
A. Improper Notice: The defendant...
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