State v. Just, No. 14197

• Docket Nº: No. 14197
• Citation: 36 St.Rep. 1649, 602 P.2d 957, 184 Mont. 262
• Case Date: October 22, 1979
• Court: United States State Supreme Court of Montana

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602 P.2d 957 184 Mont. 262 STATE of Montana, Plaintiff and Respondent,
v.
David Leroy JUST, Defendant and Appellant. No. 14197. Supreme Court of Montana. Submitted June 5, 1979.
Decided Sept. 17, 1979.
Dissenting Opinion Oct. 22, 1979.

[184 Mont. 264]

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Stacey & Nye, Billings, Calvin J. Stacey, argued, Billings, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Mary B. Troland, argued, Asst. Atty. Gen., Helena, Harold F. Hanser, County Atty., Billings, for respondent.

W. W. LESSLEY, District Judge. ^*

Defendant appeals from his conviction of the crime of sexual intercourse without consent following a jury trial in the District Court of Yellowstone County.

Defendant is the stepfather of the victim, who was thirteen years old at the time of the incident. The specific incident with which defendant was charged occurred on or about January 27, 1977. At trial the victim testified to the following sequence of events.

On January 25, or 26, the victim had been left in charge of the family home in Huntley, Montana, and of her younger brother and sister while her mother attended a conference in California, and defendant, her stepfather, was working out of the state.

On the night of the specific acts charged, the victim and her brother and sister had gone to bed for the night. Sometime between 9 and 10 p. m., defendant arrived home, awakened the victim, and asked her to cook something to eat for him. The victim, wearing an ankle length nightgown, complied.

Sometime later, after defendant had finished eating and the victim had returned to bed, defendant began calling to the victim, asking her to get up and come sit beside him on the couch in the living room. The victim again got out of bed and returned to the kitchen where she cleared away the dirty dishes. While she was so engaged, defendant went back to his bedroom and began looking for something. He then

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called the victim back to his room to look at something.

The victim went back to the doorway of defendant's bedroom. He asked her to sit beside him on the bed, which she refused to do. Shortly thereafter, he grabbed her by her wrist and pulled her [184 Mont. 265] down on the bed beside him. After lying there awhile, defendant got up, procured a pornographic magazine from his desk drawer and attempted to force the victim to look at it.

Defendant then shut the bedroom door, turned out the lights, removed his pants, pushed the victim's nightgown to her waist, removed her underpants, and attempted unsuccessfully to have genital sexual intercourse. After some period of time, defendant, failing to achieve sexual penetration, grabbed the victim by the back of the neck and forced her to take his penis into her mouth. He held her in this position until he ejaculated.

The victim was then allowed to go to the bathroom where she cleaned up and, after turning off the television, she returned to her own bed. Because there was nothing on the television, the victim estimated the time as being at least after midnight.

At school the next day, the victim called her aunt in Billings to come pick her up. The aunt, upon arriving at the school, was generally informed by two of the victim's schoolmates that she had been sexually assaulted by her stepfather. Thinking that they meant the victim had been raped, the aunt, after calling the victim's mother in California, took her for a pelvic examination which revealed no sign of semen, trauma, or penetration. The examining physician did not, however, examine the victim's mouth.

The next day, the victim's mother returned to Billings and along with the victim went to the Yellowstone County sheriff's department to report the incident. With the mother's consent, a search warrant was obtained and executed for the seizure of the bedspread from defendant's bed, the victim's nightgown, some towels and the pornographic magazine.

Shortly after the execution of the search warrant, defendant was arrested and taken to the Yellowstone County jail where several pubic hairs and his undershorts were taken. The bedspread, nightgown, towels and undershorts were sent to the FBI laboratory in Washington, D.C., for testing along with samples of pubic hair from both defendant and the victim.

At trial the victim further testified, over the continuing objection [184 Mont. 266] of defense counsel, that defendant had previously committed sexual offenses against her similar to the offense with which he was charged. The victim testified that these acts had begun three years earlier while the family lived in Wisconsin and all occurred when she and defendant were alone. In total, the victim testified that she had been forced to have oral sex with defendant between ten and thirty times prior to the January 27 incident. None of the victim's testimony as to these prior acts were corroborated by other testimony or evidence.

The State presented further testimony from the FBI agents who conducted the examination of the physical evidence. These agents testified that a spermatozoa stain was discovered on the bedspread and on the defendant's undershorts, but they were unable to identify these stains in any more detail. No stains were found on either the nightgown or the towels. As it developed at trial, however, it appears that the wrong nightgown had been seized and the one the victim had been wearing at the time of the incident was inadvertently washed before the error was discovered.

The physician who examined the victim after the incident testified as to the absence of any evidence of semen, trauma, or penetration in the pelvic area. He conceded that he had not examined her mouth.

Defendant testified in his own behalf, denying any and all of the sexual assaults alleged by the victim. Further, the defense attempted to impeach the victim's testimony regarding prior assaults by bringing out that although she had had numerous opportunities to do so, she had never reported any of the prior incidents to anyone.

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The issues before us are:

1. Whether the District Court erred in allowing the victim to testify over defendant's objection to uncharged, uncorroborated prior acts of sexual crimes allegedly committed upon her by the defendant?

2. Whether the District Court erred in refusing defendant's offered[184 Mont. 267] cautionary instruction on use of the prosecuting witness's testimony?

3. Whether the evidence produced at trial can sustain the verdict as a matter of law?

Defendant in his argument below and before this Court recognizes the exception to the general rule of the incompetency of evidence of the commission of other crimes for which a defendant is not charged. That exception, which is the rule in this jurisdiction, is of ancient lineage. Simply put, the evidence of prior sexual acts by a defendant and a prosecutrix is admissible in a trial for a sexual offense.

In this first issue of his appeal, defendant challenges as "illogical" one of the oldest and most often applied general rules and exception, in this State's criminal jurisprudence. This general rule as well as the exception were recently summarized in State v. LaVe (1977), Mont., 571 P.2d 97, 100, 34 St.Rep. 1298, 1301-02:

"Generally, evidence of other offenses or of other similar acts at other times is inadmissible for the purpose of showing the commission of the particular criminal offense charged. State v. Taylor, 163 Mont. 106, 120, 515 P.2d 695 (1973). The reason is that the defendant is entitled to be informed of the offense charge so that he need prepare his defense only to that particular offense. Proof of other offenses subjects him to surprise and to a defense of multiple collateral or unrelated issues. State v. Jensen, 153 Mont. 233, 455 P.2d 631 (1969). This rule applies to evidence of other offenses regardless of whether defendant was actually charged with the other offense. See, State v. Tiedemann, 139 Mont. 237, 362 P.2d 529 (1961).

"The general rule, however, is subject to several exceptions when such evidence becomes admissible: (1) When similar acts with the same prosecuting witness are involved; (2) when similar acts are not too remote in time; and (3) when evidence of other offenses tends to establish a common scheme, plan or system, where such other offenses are similar to, closely connected with and not too remote from the one charged, and where they are so that the proof [184 Mont. 268] of one tends to establish the other. State v. Taylor, supra; State v. Jensen, supra."

Accord, State v. Heine (1975), 169 Mont. 25, 27-28, 544 P.2d 1212, 1213; State v. Taylor (1973), 163 Mont. 106, 120-22, 515 P.2d 695, 703-04; State v. Frates (1972), 160 Mont. 431, 436-37, 503 P.2d 47, 50; State v. Jensen (1969), 153 Mont. 233, 238-39, 455 P.2d 631, 633-34; State v. Merritt (1960), 138 Mont. 546, 548-50, 357 P.2d 683, 684; State v. Sauter (1951), 125 Mont. 109, 111-16, 232 P.2d 731, 731-34; State v. Gaimos (1916), 53 Mont. 118, 124, 162 P. 596, 599; State v. Peres (1903), 27 Mont. 358, 360, 71 P. 162, 163.

The above rules and exception have also recently been codified in Rule 404(b), Mont.R.Evid.:

"(b) Other crimes, wrongs, acts. 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 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."

As noted in the Commission Comment to this section, the Commission intended "that there be no change in the admissibility of such evidence under existing Montana law."

Montana has given protection to the defendant in such a case as this against the admission of potentially prejudicial evidence of other crimes or wrongful acts. It is the rule that both trial courts and this Court are obligated to balance carefully the relative probative value of the evidence of

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other offenses...