State v. Crist, No. 91-424

• Docket Nº: No. 91-424
• Citation: 253 Mont. 442, 833 P.2d 1052
• Case Date: August 13, 1992
• Court: United States State Supreme Court of Montana

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833 P.2d 1052 253 Mont. 442 STATE of Montana, Plaintiff and Respondent,
v.
Stephen Dale CRIST, Defendant and Appellant. No. 91-424. Supreme Court of Montana. Submitted on Briefs April 2, 1992.
Decided June 11, 1992.
As Clarified Aug. 13, 1992.

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[253 Mont. 443] John E. Smith and Marcia M. Jacobson, Public Defender's Office, Missoula, for defendant and appellant.

Marc Racicot, Atty. Gen., Carol Schmidt, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, County Atty., Missoula, for plaintiff and respondent.

McDONOUGH, Justice.

This is an appeal from the Fourth Judicial District, Missoula County. Defendant, Stephen Crist (Crist) appeals from a ruling of the District Court allowing evidence of 'other acts' to be admitted under Rule 404(b), M.R.Evid. Subsequently, a jury found Crist guilty of sexually assaulting 9 year old B.L. We reverse.

The issues for our review are:

I. Did the District Court err by admitting 'other acts' evidence to be presented to the jury through the testimony of Kathy Lamb?

II. Did the District Court err by denying Crist's request for psychological evaluation of the complaining witnesses by a qualified expert of Crist's choosing?

Crist was charged with three counts of sexual assault. In the first count he was charged for sexual contact without consent for touching [253 Mont. 444] 9 year old B.L. on the chest and in the vaginal area with his hand. Count two alleged that Crist sexually assaulted B.C., Crist's 8 year old son, by fondling his penis. Count three alleged Crist sexually assaulted J.L., a 14 year old baby sitter, by fondling her breasts.

The State, pursuant to the requirements of State v. Just (1979), 184 Mont. 262, 602 P.2d 957, filed a 'Notice of Intent to Introduce Evidence of Other Acts' seeking

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to admit alleged incidents of sexual assault upon Kathy Lamb (Lamb). The notice provided that the State would seek to introduce evidence of 'other acts':

for the purpose of proving motive, intent, preparation, plan, knowledge, absence of mistake or accident, or any other permissible factor such as consciousness of guilt.

The State further provided that the evidence of 'other acts' expected to be presented consisted of the following:

On or about the fall of 1984 the defendant touched the breast and legs of Kathy Lamb, d/o/b July 24, 1971, on approximately twelve different occasions. One time he showed her a pornographic magazine and on another occasion he gave her an alcoholic beverage and joked that he would get her drunk and then "take advantage" of her. Later the same night he tried to get her to dress in a nightgown. The touching all occurred when she was in bed and he entered the bedroom and reached under her covers.

The court allowed the evidence to be introduced and at trial Lamb testified to each of the prior acts as listed above. However, Lamb did not recall defendant having touched her breasts but did testify that on three or four occasions (rather than the 12 described in the notice) Crist had come into the room where she was sleeping (with B.L.), put his hand under her covers and rubbed her upper leg. Crist was only found guilty of the charges involving B.L.

Rule 404(b), M.R.Evid., provides that:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

The general rule of Rule 404(b), M.R.Evid., must be strictly enforced, except where a departure is clearly justified and exceptions to the rule must be carefully limited. Just, 184 Mont. at 271-272, 602 P.2d at 962, citing State v. Tiedemann (1961), 139 Mont. 237, 242-243, 362 P.2d 529, 531. We have developed four substantive criterion for the admission of evidence of other acts or crimes. State v. Just (1979), 184 Mont. 262, [253 Mont. 445] 602 P.2d 957; State v. Matt (1991), 249 Mont. 136, 814 P.2d 52, 48 St.Rep. 614. The so called 'Modified Just Rule' requires that:

1) there is a similarity between the crime charged and the previous crime, act or wrong;

2) the other crime, act or wrong must not be remote in time;

3) the evidence of other 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; and

4) a determination that the probative value of the evidence is not substantially outweighed by the prejudice to the defendant.

When reviewing evidentiary rulings, this Court will determine if the District Court misused or abused its discretion. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601. Absent a showing of abuse of discretion, the District Court's determination will not be overturned. State v. Oman (1985), 218 Mont. 260, 264, 707 P.2d 1117, 1119-20. On review, we will apply the Just criterion to the facts of the present case.

The first requirement of the Modified Just Rule is that there be a similarity between the crime charged and the prior act. Here the crime charged was the perpetration of sexual assaults upon an 8, 9 and 14 year old child. In State v. Tecca (1986), 220 Mont. 168, 714 P.2d 136, we held that a prior act need not be identical to the offense committed but that there must be a sufficient similarity. In Tecca, the crime charged was the sexual assault of an 11 year old who was sleeping in the defendant's house. We determined that evidence of other children who had awakened in defendant's house to find defendant sitting next to their bed in his underwear bore sufficient similarity to the crime charged to

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uphold its admission. On the basis of Tecca, we refuse to adopt Crist's argument that a prior act in order to be admissible in a sexual assault case must involve actual 'touching'.

In State v. Long (1986), 223 Mont. 502, 726 P.2d 1364, we determined that defendant's having "rubbed" the clothed bottom of a 5 year old was sufficiently similar to the crime charged of pulling down the pants of two four year old children and rubbing their vaginas. We noted that sexual abuse of children takes subtle forms and deferred to the perceptions of the trier of fact to properly admit the testimony.

In the instant case, Lamb testified that Crist assaulted her late at night in the same bed in which Crist assaulted B.L. Lamb testified [253 Mont. 446] that Crist rubbed the inside and outside of her thighs in an attempt to "move his hand up." We conclude that this act is sufficiently similar to the assault perpetrated on B.L. to uphold its admission. See also State v. Gilpin (1988), 232 Mont. 56, 756 P.2d 445. We now apply Lamb's testimony, regarding Crist's...