State Of Mont. v. Sage

• Decision Date: 20 July 2010
• Docket Number: No. DA 09-0252.,DA 09-0252.
• Citation: 235 P.3d 1284,357 Mont. 99,2010 MT 156
• Parties: STATE of Montana, Plaintiff and Appellee,v.Donald Ray SAGE, Defendant and Appellant.
• Court: Montana Supreme Court

357 Mont. 99

235 P.3d 1284

2010 MT 156

STATE of Montana, Plaintiff and Appellee,v.Donald Ray SAGE, Defendant and Appellant.

No. DA 09-0252.

Supreme Court of Montana.

Submitted on Briefs June 9, 2010.

Decided July 20, 2010.

For Appellant: Nancy G. Schwartz, NG Schwartz Law, PLLC, Billings, Montana.

For Appellee: Hon. Steve Bullock, Montana Attorney General, Jonathan M. Krauss, Assistant Attorney General, Helena, Montana, Joan S. Borneman, Deer Lodge County Attorney, Anaconda, Montana.

Justice PATRICIA O. COTTER delivered the Opinion of the Court.

¶ 1 Donald Ray Sage (Sage) appeals his conviction for the felony offense of sexual intercourse without consent (SIWC) in the Third Judicial District Court. We reverse Sage's conviction and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 In the fall of 2007, Mary Graham (Mary) routinely spent time at Sage's house in Anaconda, Montana. Mary lived with her boyfriend Jeremiah Bell (Bell) in Anaconda in a camper trailer with no heat or running water. Sage and his then-girlfriend Marian Sage (Marian) ¹ allowed Mary to stay at the house on occasion in order to shower and use Sage's computer. Mary had originally been introduced to Sage by her godmother Martha Koffler (Koffler). Sage and Bell worked together delivering newspapers. Sage and Marian allowed other individuals to regularly use their house as a place to hang out and use Sage's computers. Sage and Marian provided food to the individuals who hung out at the house, and allowed them to drink beer and smoke marijuana there as well.

¶ 3 Mary was a regular at Sage's house for over a month. In the course of spending time there, Mary testified that she came to regard Sage as a pretty good friend, and developed trust in both Sage and Marian. According to Mary's testimony, at some point Sage began paying Mary compliments and “saying things” to her. Sage told Mary he was a photographer who took “exotic” photographs. Sage showed Mary a number of these photographs. The photographs depicted women in various lurid poses, and women in some of the pictures were naked, or skimpily dressed. Some of the photographs also showed Sage himself, posing naked, and Sage's penis showing a “69” tattoo in his pelvic area. Two of the photographs which Sage showed to Mary depicted his penis ejaculating.

¶ 4 Mary stated that Sage asked her what she thought about the photographs and made comments indicating that he wanted to take pictures of her. Sage suggested that he could take pictures of Mary for her boyfriend Bell as Christmas presents. Mary testified that she was disgusted by the photographs and considered them pornographic. Mary thought it strange that Sage had showed her these photographs, but decided to leave the topic alone. Mary testified that she would not stop going to Sage's house solely on account of the pictures, and also testified that she had nowhere else to go. Sage did end up taking some photographs of Mary although it appears that Mary was fully clothed in all of them. Mary also took some pictures of herself using Sage's camera.

¶ 5 Mary testified that Sage had asked her on many occasions if she wanted him to shave her pubic area, but she always told Sage “no.” After she refused these advances, Mary thought that the whole issue was a “done deal,” especially given the fact that she hung out at Sage's house with her boyfriend Bell and others. Despite Sage's advances and her refusals, Mary stated she was still comfortable at Sage's house and felt as though she could trust him.

¶ 6 On December 11, 2007, Mary had been at Sage's house using the computer checking her “My Space” page and talking to her friends. Marian went on an errand, leaving Sage and Mary alone in the house for the first time. Mary testified that Sage came into the computer room dressed only in his boxer shorts. Mary testified that Sage's boxers were pulled down and that his penis was exposed to her. Mary “freaked out” and tried to leave, but Sage grabbed her arm, causing Mary a significant amount of pain due to nerve damage and scars she suffered after contracting meningitis. Mary testified that she ended up on the floor, and that Sage held her arms and told her to relax, enjoy it, and that he just wanted to give her pleasure. Mary resisted by kicking, crying, screaming and trying to get away, and testified that she repeatedly told him “no.” Sage then allegedly ripped off her pants and underwear, got between her legs, and continued to hold her arms above her head. Eventually, Mary gave up, laid on the floor, and attempted to “tune out” what Sage was doing to her. At trial, Mary testified that she was accustomed to “tuning out” when confronted with traumatic experiences in her life.

¶ 7 Mary testified that Sage then pulled out an electric razor and used it as a vibrator on Mary, telling her again that he only wanted to give her pleasure. Sage allegedly then asked Mary again if she wanted him to shave her, and ultimately penetrated her with his penis. Sage allegedly threatened Mary, stating that if she told anybody or mentioned it, he would either say that she begged him for it and “wanted it,” or he would deny the incident outright.

¶ 8 Mary testified that she did not initially want to report the alleged rape, and wanted to put it out of her mind and go on with her life. She threw away the clothes she had been wearing, including the ripped pants. However, a week after the rape she told Koffler about the incident and Koffler made her report it to the police.

¶ 9 On December 18, 2007, Koffler took Mary to the Anaconda police station to report that she had been raped by Sage. Mary was interviewed by Detective Steven Barclay of the Anaconda-Deer Lodge Police Department in Anaconda. Mary told Det. Barclay the version of events noted above. Based upon information provided by Mary, the officers obtained a search warrant for Sage's house. Mary informed the officers that there was a “pot pipe” in Sage's house, and described its location. During the search, officers seized two razors, Sage's computers, a digital camera, photographs, and the pot pipe in the location where Mary said it would be.

¶ 10 Sage was arrested for misdemeanor possession of drug paraphernalia. Sage was interviewed by law enforcement and gave a voluntary statement to the police while in custody. Sage told the officers that he did not rape Mary. At trial, Sage claimed that when he and Mary were alone in the house, Mary approached him after taking a shower with towels wrapped around her head and middle, and asked him to shave her pubic area. Sage stated that he thought the request was weird, but nonetheless agreed to do it. Sage denied holding Mary down or penetrating her in any manner.

¶ 11 Sage was subsequently charged with misdemeanor possession of drug paraphernalia and SIWC. Prior to trial, Sage filed a motion in limine seeking to exclude any reference to other crimes, wrongs, or acts which he may have committed. The motion sought to exclude the photographs he had shown to Mary of the various women, Sage himself, and his penis. Sage did not seek to exclude the photographs of Mary, because the digital stamp on the photos of Mary indicated they had been taken after the date of the alleged rape, thus demonstrating that Mary had returned to Sage's house after she claimed she was raped.

¶ 12 Generally speaking, M.R. Evid. 404(b) prohibits the admission of evidence of other crimes, wrongs, or acts in order to show that the defendant acted in conformity therewith, but does allow the admission of such evidence for other purposes, such as to prove motive or intent. State v. Marshall, 2007 MT 198, ¶ 15, 338 Mont. 395, 165 P.3d 1129. If the State intends to introduce evidence of other crimes, wrongs, or acts, it must provide written notice pursuant to the Modified Just Rule described by this Court in State v. Matt, 249 Mont. 136, 814 P.2d 52 (1991). The “transaction rule,” codified at § 26-1-103, MCA,² permits the introduction of evidence of prior bad acts which are inextricably linked to the charged offense, notwithstanding the criteria and requirements of the Modified Just Rule. Marshall, ¶ 16. The State in this case did not comply with the Modified Just Rule, but argued that the photographs were inextricably linked to the sexual intercourse without consent charge, and were thus admissible under the “transaction rule.”

¶ 13 The District Court agreed with the State and allowed the admission of the disputed photographs under the transaction rule. In its ruling from the bench at the final pretrial conference, the District Court expressed some discomfort with the idea that the photographs were admissible as evidence of Sage “grooming” Mary in preparation to commit the offense.³ The District Court observed that grooming evidence did not fit well with the forcible rape situation as alleged by the State, and also that Mary was of adult age, while “grooming” usually involves an underage victim. However, noting that the transaction rule would allow the admission of evidence if it forms part of the disputed transaction, the District Court determined that if the photographs were actually a part of the conduct, communications, and relationship activity between Sage and Mary, then they would qualify as a part of the transaction.

¶ 14 Sage's trial was held on October 6-8, 2008. On the morning of the first day of trial, Sage entered a guilty plea to the misdemeanor charge of possession of drug paraphernalia. The District Court received his guilty plea in chambers, outside the presence of the jury. In light of his change of plea, Sage argued that all the evidence related to this charge was no longer relevant and therefore inadmissible under M.R. Evid. 404(b). The State argued that it should be able to present evidence that Mary was a part of a group that hung out at Sage's house and regularly drank and smoked marijuana. The State contended that this group was “almost like a subculture,” and that it was...