State v. Brooks, 93-033

• Decision Date: 24 August 1993
• Docket Number: No. 93-033,93-033
• Citation: 260 Mont. 79,857 P.2d 734
• Parties: STATE of Montana, Plaintiff and Respondent, v. Douglas Robert BROOKS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 734

857 P.2d 734

260 Mont. 79

STATE of Montana, Plaintiff and Respondent, v. Douglas Robert BROOKS, Defendant and Appellant.

No. 93-033.

Supreme Court of Montana.

Submitted on Briefs July 8, 1993.

Decided Aug. 24, 1993.

Lawrence LaFountain, Havre, for defendant and appellant.

Joseph P. Mazurek, Atty. Gen., Elizabeth L. Griffing, Asst. Atty. Gen., Helena, David G. Rice, Hill County Atty., Havre, for plaintiff and respondent.

HUNT, Justice.

Appellant Douglas Robert Brooks was convicted of sexual assault following a jury trial and appeals from the judgment of the District Court of the Twelfth Judicial District, Hill County, claiming error in the court's failure to suppress evidence of prior crimes.

We affirm.

The sole issue on appeal is whether the District Court erred in denying Brooks' motion to suppress evidence of prior crimes. We analyze this issue under the modified Just rule, as set forth in State v. Matt (1991), 249 Mont. 136, 814 P.2d 52.

On March 23, 1992, Brooks was charged by information with a sexual assault on an 11-year-old victim, W.J., allegedly occurring on February 7, 1992, in Havre, Montana. On June 25, 1992, as required by Matt, the State filed a notice informing Brooks that evidence of a prior sexual assault committed by Brooks would be introduced at trial. Brooks filed a motion to suppress this evidence. The District Court denied the motion. On August 25, 1992, a jury found Brooks guilty of sexual assault. Brooks appeals from the judgment on the issue of admission of the prior sexual assault.

The prior crime introduced in Brooks' trial involved an incident that occurred before his move to Havre. In May 1989, Brooks took 13-year-old G.M. to Lake Chelan in Washington state where they engaged in recreational activities, including swimming, during the day. Later that evening, Brooks sexually assaulted G.M. In January 1990, Brooks was convicted in Washington of felonious sexual contact with a minor.

After moving to Havre, Brooks became employed as a maintenance man at a motel where he became friendly with the manager's 10-year-old son, J.T. In addition to helping J.T. with his math, Brooks also accompanied him to the Havre city pool which was largely attended by 10 and 11-year-old boys. Brooks would frequently play with the boys in the pool by flipping them into the water. In fact, complaints were made to the pool management that Brooks was paying too much attention to the young boys. An off-duty police officer investigated these complaints and found that Brooks had a tendency to pay more attention to the young boys than to the girls at the pool.

One day Brooks took both J.T. and his friend, W.J., swimming at the pool. Brooks flipped the boys in the water, played several pool games and allowed them to ride on his back for about 30 minutes or an hour. According to W.J., Brooks approached him from behind and squeezed his buttocks, at which time W.J. swam away in order to inform J.T. Later on, according to W.J., Brooks approached him again, and this time squeezed W.J.'s penis. J.T. testified that Brooks later approached him also and squeezed his buttocks.

The next week, at J.T.'s birthday party, W.J. became upset when informed that Brooks might stop by. According to W.J., Brooks had asked him whether or not he intended to inform the police about the swimming pool incident, and W.J. answered that he would not. Brooks contends that W.J. approached him with sexual advances and that he merely tried to counsel W.J.

Did the District Court err in denying Brooks' motion to suppress evidence of prior crimes?

As indicated, we will analyze this issue in light of the four-part modified Just rule that provides:

(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.

Matt, 814 P.2d at 56.

Brooks' actions show a systematic plan to entertain boys or adolescents in a recreational setting in which they feel comfortable and then, immediately or soon after, to catch them off-guard and unexpectedly sexually assault them. Although the time Brooks spent befriending G.M., J.T., and W.J. before sexually assaulting them varied with each victim, the plan was nonetheless systematic in that swimming or water games were used as a prelude to the assaults, and the boys were each in a vulnerable position because they wore fewer clothes while they were swimming, or in G.M.'s case, receiving a back rub, than they would have in a more formal setting.

Applying the first element of the modified Just rule to the case at bar, we conclude that the sexual assault committed by Brooks in Washington against G.M. is similar to the sexual assault committed against W.J. in Havre. As we stated in State v. Gilpin (1988), 232 Mont. 56, 64, 756 P.2d 445, 449, the prior act does not need to be identical to the charged offense. In the case at bar, the two acts are extremely similar.

Brooks took G.M. swimming at a lake in order to...