State v. Aakre

Decision Date10 May 2002
Docket NumberNo. 01-321.,01-321.
Citation309 Mont. 403,46 P.3d 648,2002 MT 101
CourtMontana Supreme Court
PartiesSTATE of Montana, Plaintiff and Appellant, v. Jerry AAKRE, Defendant and Respondent.

Mike McGrath, Montana Attorney General, John Paulson, Assistant Montana Attorney General, Helena, Montana; Brant S. Light, Cascade County Attorney, Susan Brooke, Deputy Cascade County Attorney, Great Falls, Montana, For Appellant.

Scott Albers, Great Falls, Montana, For Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Jerry Aakre (Aakre) was charged by information on June 21, 1999, with three counts of sexual assault in violation of § 45-5-502, MCA, in the Eighth Judicial District Court, Cascade County. Before trial, one count was withdrawn by the State. After a trial in which the jury found him guilty on one count, Aakre made a motion for a new trial on the grounds that other crimes evidence of previous sexual assaults was improperly admitted against him under our decision in State v. Sweeney, 2000 MT 74, 299 Mont. 111, 999 P.2d 296. The District Court granted the motion. Pursuant to § 46-20-103(c), MCA, the State appeals this decision, asserting that the other crimes evidence was properly admitted against Aakre as evidence of common scheme or evidence of absence of mistake or accident.

¶ 2 We address the following issue on appeal: Did the District Court properly grant Aakre's motion for a new trial on the grounds that evidence of his prior acts was erroneously admitted during his trial for sexual assault?

¶ 3 We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 On June 21, 1999, Aakre was charged by information with three counts of sexual assault against his step-granddaughter, A.S. Before trial the State gave notice, as required by the modified Just rule, of its intent to introduce evidence of Aakre's other crimes. The State intended to introduce evidence that Aakre pled guilty to continuous sexual assaults over a two year period against two stepdaughters from a previous marriage 16 years earlier. In its brief in support of its Just notice, the State only offered testimony from one of the stepdaughters. Aakre opposed the introduction of this evidence.

¶ 5 In the prior crimes, Aakre asked his stepdaughter to come to his bedroom when her mother was absent, directed her to take her pants down, stroked her vagina with his index finger, and kissed her on the mouth. Further, he had her rub initially his stomach and then his penis. In the alleged crime, i.e., the current charges, Aakre's acts were similar, except for the allegation that he would place A.S. on his pelvis and move her back and forth rather than have her rub his stomach.

¶ 6 The District Court ruled that the evidence properly conformed to the requirements of the Just rule and allowed the evidence to be introduced. The District Court found that the crimes involved in the prior guilty plea and the alleged crimes on trial were sufficiently similar to establish a plan or modus operandi because of the similarity of the incidents and because both involved a continuous pattern of conduct rather than a single instance of conduct.

¶ 7 The jury found Aakre guilty of the count of continuous sexual assault while in the home and not guilty on the second count which alleged a sexual assault in a vehicle. After trial, Aakre moved for a new trial on the grounds that the other crimes evidence was improperly admitted under our decision in Sweeney. The District Court granted the motion, concluding that Sweeney controlled the admission of other crimes evidence in Aakre's case. The State now appeals, asserting that the District Court erred because Aakre's prior plea was admissible as evidence of common scheme or absence of mistake or accident.

II. STANDARD OF REVIEW

¶ 8 We review a trial court's decision to grant a new trial for abuse of discretion. State v. Bell (1996), 277 Mont. 482, 485, 923 P.2d 524, 526. Evidentiary rulings regarding whether evidence is relevant and admissible are also reviewed for abuse of discretion. State v. Whitlow (1997), 285 Mont. 430, 437, 949 P.2d 239, 244. Determinations of law integral to the grant of a new trial are reviewed de novo. Bell, 277 Mont. at 486,

923 P.2d at 526. While we have applied the abuse of discretion standard to other crimes issues, we have not specifically stated the standard of review applicable to rulings on other crimes evidence under the Just rule. Because the admission of other crimes is directed to the relevance and admissibility of such evidence, we now specifically hold that we will review a trial court's decision on whether to admit evidence of other crimes, wrongs or acts under Rule 404(b), M.R.Evid., for abuse of discretion.

¶ 9 There are four substantive criteria under Rule 404(b), M.R.Evid., that must be met before evidence of other crimes, wrongs or acts can be admitted in the trial of the current charge. These criteria were stated in State v. Just (1979), 184 Mont. 262, 602 P.2d 957, were modified by State v. Matt, and are as follows:

(1) The other crimes, wrongs or acts must be similar.
(2) The other crimes, wrongs or acts must not be remote in time.
(3) The evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity with such character; but may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
(4) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

State v. Matt (1991), 249 Mont. 136, 142, 814 P.2d 52, 56. In this case, the only criteria at issue is the third prong of the Just rule, the purpose of proof for which the evidence is offered.

¶ 10 The District Court found that evidence of Aakre's prior guilty plea should not have been admitted at trial under our decision in Sweeney and therefore granted the motion for a new trial. The State now argues that Aakre's previous crimes were properly admitted as evidence of common scheme and as evidence of absence of mistake or accident. The State asserts that the District Court incorrectly applied Sweeney to the facts of this case. Sweeney involved whether the admission of a defendant's prior conviction for sexual assault against his stepdaughter was properly admitted in the defendant's trial of sexual assault against his niece which allegedly occurred seven years later. Sweeney, ¶¶ 7, 15. We held that the prior conviction did not satisfy the Just rule and should not have been admitted as evidence of identity, intent, motive, or knowledge. Sweeney, ¶ 35.

¶ 11 While Sweeney did not directly address the issue of common scheme or the issue of absence of mistake or accident, Sweeney does require that each allowable purpose under Rule 404(b), M.R.Evid, asserted by the State be analyzed by a trial court to determine whether the evidence supports that specific purpose. Sweeney, ¶ 23 (analysis addresses each purpose identified by the State). Sweeney teaches that before other crimes evidence can be admitted under Rule 404(b), M.R.Evid., the purpose justifying the admission of the evidence must be at issue in the current charge. For example, if intent is not at issue, then other crimes evidence on that point is not admissible under the third prong of the modified Just rule. See Sweeney, ¶ 22-36. We hold here, as discussed below, that the District Court did not abuse its discretion in granting Aakre a new trial because the prior acts evidence should not have been admitted in Aakre's first trial as evidence of either common scheme or absence of mistake or accident.

III. DISCUSSION
A. Common Scheme

¶ 12 Under Rule 404(a), M.R.Evid., evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion. The purpose of this rule is to prevent convictions that are merely based on a jury finding that someone has a propensity to do certain things. Sweeney, ¶ 35. The rule furthers the purpose to inform the defendant of the charges against him, Just, 184 Mont. at 273, 602 P.2d at 963; prevents convictions based on finding the defendant is a bad person, State v. Tiedemann (1961), 139 Mont. 237, 242, 362 P.2d 529, 531; and prevents convictions for one crime based on evidence of another, Matt, 249 Mont. at 143, 814 P.2d at 56 (requiring jury instruction to emphasize that the defendant is not being tried and may not be convicted for any offense except that charged); see also State v. Sanders (1971), 158 Mont. 113, 119, 489 P.2d 371, 374

. Further, in order to uphold the intent of the rule, exceptions to this rule must be clearly justified and carefully limited. Sweeney, ¶ 16.

¶ 13 Exceptions are allowed by Rule 404, M.R.Evid., when character is in issue or when past acts that may have character implications nonetheless serve as independent proof of a material issue. Rule 404(b), M.R.Evid., allows admission when other crimes, wrongs or acts prove motive, opportunity, intent, preparation, knowledge, identity, absence of mistake or accident, or, as discussed here, when other crimes prove defendant's "plan."

¶ 14 "Plan," though referred to in Rule 404(b), is not a defined term of art in the context of Title 45. Notwithstanding, a "plan" is nothing more than "a method for achieving an end." MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 889 (10th ed.1997). This definition of "plan" is encompassed within the definition of "common scheme" under § 45-2-101(7), MCA. Under § 45-2-101(7), MCA, "common scheme" is defined as:

a series of acts or omissions motivated by a purpose to accomplish a single criminal objective or by a common purpose or plan
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