State v. Hansen

• Decision Date: 02 April 1980
• Docket Number: No. 14861,14861
• Parties: STATE of Montana, Plaintiff and Respondent, v. Mickey Gene HANSEN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1083

608 P.2d 1083

187 Mont. 91

STATE of Montana, Plaintiff and Respondent, v. Mickey Gene HANSEN, Defendant and Appellant.

No. 14861.

Supreme Court of Montana.

Submitted Dec. 10, 1979.

Decided April 2, 1980.

Daley, Sherlock & Nardi, Stephen J. Nardi argued, Kalispell, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Richard Larson, Asst. Atty. Gen., argued, Helena, Paul Cooley, Student Intern, argued, William Douglas, County Atty., Shaun R. Thompson, Deputy County Atty., argued, Libby, for plaintiff and respondent.

SHEEHY, Justice.

Mickey Gene Hansen appeals from a felony conviction entered in the District Court, Missoula County, on a charge of sexual intercourse without consent.

Carol Birdsall, the complaining witness in this case, worked at a cafe in Eureka, Montana. After work at about 1:00 a. m. on September 2, 1978, she went to a bar next to the cafe. There she talked with defendant Hansen and a friend of Hansen's. The group had a drink and discussed the possibility of Birdsall getting some marijuana from Hansen.

After the bar closed, Hansen, his friend and Birdsall left the bar and proceeded out of town in Hansen's truck. They planned to smoke some marijuana. The group drove to a campground outside Eureka, parked and smoked the marijuana. Hansen's friend passed out at this point.

The testimony conflicts as to what happened next. Hansen stated he then returned Birdsall to her car in Eureka unmolested. Birdsall testified that she asked Hansen to take her home, but instead he drove her to an isolated part of the mountains. Birdsall stated Hansen then became suggestive and tried to fondle her. When she resisted, Hansen allegedly told her that she could have intercourse with him or walk home. Birdsall told Hansen she would walk home but he refused to allow her and told her he would wake his friend and both of them would rape her.

Birdsall testified that she and Hansen then got out of the truck and she started to walk away. As she did, Hansen allegedly grabbed her and they fell to the ground. Birdsall testified they struggled, Hansen twisted her thumb against her wrist, removed some of her clothing and forced intercourse with her.

After the act, Birdsall stated Hansen got back into the truck and drove the group back to Eureka. Birdsall stated that Hansen told her nobody had to know about the incident driving back to Eureka.

Prior to trial, Hansen filed a motion in limine seeking to exclude any evidence of his involvement in prior crimes. The District Court denied the motion. At the trial, Gayle Yeager testified that Hansen had raped her approximately two and one-half years earlier. Yeager stated she knew Hansen and accepted a ride home from him after the bars closed. Instead of taking her home, Yeager testified Hansen drove her to an isolated area outside Eureka. When Yeager resisted advances Hansen made toward her, Hansen grabbed her, twisted her thumb against her wrist and raped her. Hansen then drove Yeager back toward town and told her not to report the rape. Hansen was convicted of aggravated assault on charges stemming from this earlier incident.

The sole issue raised by this appeal is whether the District Court erred in allowing the admission of evidence of the earlier sexual assault.

Evidence of other crimes is generally not admissible to show a defendant committed a particular crime charged. State v. Just (1979), Mont., 602 P.2d 957, 960, 36 St.Rep. 1649, 1652; State v. LaVe (1977), Mont., 571 P.2d 97, 100, 34 St.Rep. 1298, 1301; State v. Heine (1975), 169 Mont. 25, 27, 544 P.2d 1212, 1213; State v. Jensen (1969), 153 Mont. 233, 238, 455 P.2d 631, 633. There is however, a notable exception to the general rule which the state relies on in this case. We stated the exception in Just, supra, as follows:

"There emerges a four element test to determine the admissibility of evidence of other crimes or acts in criminal prosecutions such as the one here . . . The four factors are:

"1. similarity of crimes or acts;

"2. nearness in time; and

"3. tendency to establish a common scheme, plan or system; and

"4. the probative value of the evidence is not substantially outweighed by the prejudice to the defendant." 602 P.2d at 961, 36 St.Rep. at 1653.

In applying the exception, each case must rest upon its own circumstances. State v. Merritt (1960) 138 Mont. 546, 549-50, 357 P.2d 683, 685. Further,

" 'The general rule should be strictly enforced in all cases where applicable, because of the prejudicial effect and injustice of such evidence, and should not be departed from except under conditions which clearly justify such a departure. The exceptions should be carefully limited, and their number and scope not increased.' State v. Tiedemann (1961), 139 Mont. 237, 242-43, 362 P.2d 529, 531.

"Accord, State v. Sauter, 125 Mont. at 116, 232 P.2d at 734." Just, 602 P.2d at 962, 36 St.Rep. at 1656.

Thus, the rule concerning admission of evidence of other crimes and the exception to the rule are clearly set out in Montana. The problem presented by this case is applying the rule to the facts here.

Before applying the above test to the instant case, it should be noted that the Just case sets out procedural guidelines to follow in cases of this nature. Just, supra, 602 P.2d 962-964, 36 St.Rep. 1656-58. The procedures, however, do not have retroactive effect. Just, 602 P.2d at 963, 36 St.Rep. at 1657. Since this case was tried before the Just decision, failure to follow the procedures is not error.

The first element of the exception to the other crimes admission rule to be considered is the similarity of the prior crime to the charged crime. Definite similarities exist here. Each incident began in a Lincoln County bar. Both victims left the bar with Hansen in the early morning hours. Hansen drove both women into the mountains and allegedly made advances toward them. When Birdsall and Yeager resisted, Hansen grabbed them, twisted their thumbs against their wrists and forced intercourse with them. Hansen also drove both women back to town and told them not to report the rape.

There are, however, differences between the crimes. Hansen knew Yeager fairly well, but did not meet Birdsall until the evening of the alleged rape. Yeager and Hansen left the bar alone. Birdsall and Hansen left the bar accompanied by a friend of Hansen's. Hansen threatened Birdsall with multiple rape. He made no such threat to Yeager.

Prior Montana cases speaking to the degree of similarity necessary to satisfy this element of the other crimes exception include Just, Jensen and Merritt. In Just, we found sufficient similarity where the prior acts were all sexual, they involved the same victim and the defendant always arranged to be at home alone with the victim before committing the crime. 602 P.2d at 961, 36 St.Rep. at 1653-54. In Jensen, the court also held the acts sufficiently similar. The Court did so despite the fact that the defendant was charged with lewd acts on a child and there was no proof any of the women who testified to previous sexual assaults by the defendant were under 16. Jensen, supra, 153 Mont. at 239, 455 P.2d at 634. In Merritt, the defendant was charged with forgery. In the crime charged, the defendant allegedly signed another's name to a document. In the prior act, defendant purportedly obtained a signature on a document by trickery. The Court held the acts too dissimilar to qualify for the exception. Merritt, supra, 138 Mont. at 550-51, 357 P.2d at 685.

The above summary of cases shows that in the past we have considered each case on its particular facts. No set standard appears to emerge from the cases. Case law from other jurisdictions holds that when the alleged similarities between crimes reveals nothing more than a sequence of events common in the crime charged, the acts are not usual and distinctive enough to come within the purview of the exception. United States v. Myers (5th Cir. 1977), 550 F.2d 1036, 1045-1048, cert. den. 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed.2d 149; People v. Weathers (1969), 79 Cal.Rptr. 127, 131-32, 274 Cal.App.2d 232; People v. Haston (1968), 70 Cal.Rptr. 419, 427-428, 69 Cal.2d 233, 444 P.2d 91, 99-100. The California Court explained the rationale for this requirement as follows: ". . . those common features which appear to be distinctive . . . lose this quality when it is considered that all who commit this type of scheme usually follow approximately the same script and use similar props." Weathers, supra, 79 Cal.Rptr. at 131.

We find the rationale expressed by California Court persuasive. Further, cases of this nature involve the application of an exception to the other crimes rule. That rule is based on the sound principle that a person should only be placed in jeopardy for the crime charged, not prior wrongful acts. Any exception to the rule must be strictly construed and well defined. Just, supra, 602 P.2d 962, 36 St.Rep. at 1656; State v. Tiedemann (1961), 139 Mont. 237, 242-43, 362 P.2d 529, 531. Adopting the position taken by the commentators and in other jurisdictions is a move toward achieving that goal. We therefore adopt the position.

Under this standard, the other crime here is not sufficiently similar to satisfy the first element of the exception to the other crimes admission rule. Numerous rapes follow the pattern of barroom pickup, voluntary entry into the offender's vehicle by the victim, driving to a remote area, advances, resistance and forcible intercourse. The sequence of events has no distinctive qualities that distinguish the acts from other rapes thus bringing the events within the purview of the similarity element of the other crimes admission rule exception.

The second element of the exception to be considered is the nearness in time of the prior act to the charged crime. The question of remoteness in time is generally a discretionary matter for the District Court. State v. Nicks (1958), 134 Mont. 341, 342, 332 P.2d 904. ...