State v. Keys

• Decision Date: 18 May 1993
• Docket Number: No. 92-232,92-232
• Citation: 258 Mont. 311,852 P.2d 621
• Parties: STATE of Montana, Plaintiff and Respondent, v. Milton Lee KEYS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 621

852 P.2d 621

258 Mont. 311

STATE of Montana, Plaintiff and Respondent, v. Milton Lee KEYS, Defendant and Appellant.

No. 92-232.

Supreme Court of Montana.

Submitted on Briefs Nov. 19, 1992.

Decided May 18, 1993.

Edmund F. Sheehy, Jr., Cannon & Sheehy, Helena, for defendant and appellant.

Marc Racicot, Atty. Gen., George Schunk, Asst. Atty. Gen., Helena, Patrick L. Paul, Cascade County Atty., Steven M. Hudspeth, Deputy County Atty., Great Falls, for plaintiff and respondent.

TRIEWEILER, Justice.

Defendant Milton Lee Keys appeals from the judgment and verdict of the Eighth Judicial District Court, Cascade County, convicting him of the crime of sexual intercourse without consent, pursuant to § 45-5-503, MCA. On February 4, 1992, the court sentenced Keys to 15 years in the Montana State Prison, with three years suspended.

We reverse.

The following issues are presented on appeal:

1. Did the District Court abuse its discretion when it admitted evidence of a prior, uncharged incident of sexual misconduct by Keys in the trial for sexual intercourse without consent?

2. Did the District Court's refusal to allow reference to prior misconduct evidence during opening statements deprive Keys of his right to a fair and impartial trial because Keys had no opportunity to minimize the impact of the evidence before the jury heard testimony about Keys' misconduct?

3. Was the evidence presented by the State during the trial inherently incredible and insufficient to support the guilty verdict?

On August 3, 1990, Keys was charged by information with the offense of sexual intercourse without consent, a felony, in violation of § 45-5-503, MCA. At trial, there was no dispute that Keys had knowingly engaged in sexual intercourse with the victim, N.B. The sole issue in dispute was whether or not N.B. had consented.

On the evening of July 31, 1990, N.B., who was 18 years old at the time, met Keys at TJ's Lounge in Great Falls. N.B. asked the bartender, who was an acquaintance of hers, for a ride home. When Keys overheard this, he offered to give her a ride and she accepted.

The two of them left the bar in Keys' vehicle and headed toward N.B.'s home. Keys stopped the car after turning off of Tenth Avenue South, and began kissing N.B. N.B. stated that she thought Keys would resume driving but he instead continued to make sexual advances over her objections. Thereafter, Keys climbed across the seat and, according to N.B.'s testimony, forced her to have sexual intercourse. N.B. testified that she struggled throughout the incident but the car was very confining and she was unable to do anything to stop Keys. Finally, when the assault ended, N.B. was able to get out of the car and immediately went to a nearby house where she notified the police that she had been raped.

While en route to meet with N.B., the police officer who was dispatched to investigate the alleged crime saw a vehicle parked near the crime scene which resembled the description she had been given of the suspect's vehicle. The officer observed the driver, later identified as Keys, searching for something on the ground and in the car. When the officer asked Keys what he was doing, he claimed he was looking for his wallet which he had lost when he dropped off a male friend at this spot. Although the officer had not yet made mention that she was investigating a possible rape, Keys later admitted he lied when approached by the police officer because he was afraid he might be charged with rape and did not know the age of consent in Montana. After confirming that Keys fit the description of the alleged assailant, the officer placed Keys under arrest and took him to the house where N.B. identified him.

The next day Keys was taken to the hospital for the purpose of gathering samples of his hair, saliva, and blood. While at the hospital Keys told another police officer that he and N.B. had been with another male and female when they left TJ's and had not been alone in the car. In a later videotaped interview, Keys again told the investigating officers that two females and a male were with him at the time of the alleged incident. At trial, Keys acknowledged that he had lied on both these occasions because, in his words, "I was hoping I would let her [N.B.] think that I had somebody to back up a story for me ... and she would tell them that nothing really happened. It didn't work out that way."

Keys did not deny having intercourse with N.B., but claimed that she had willingly participated. The case was tried before a jury which found Keys guilty of the crime of sexual intercourse without consent, and the court imposed a 15-year sentence, with three years suspended. Keys appeals.

The dispositive issue in this appeal is whether the District Court properly admitted evidence about a prior incident of sexual misconduct by Keys.

Prior to trial, the State served Keys with notice of the State's intent to offer evidence of "other crimes, wrongs, or acts," to prove Keys' motive and intent. Keys filed a brief in opposition to the introduction of this evidence, but on January 27, 1992, the court ruled that this evidence would be admissible. The evidence consisted of testimony by another woman, P.B., who had met Keys a month earlier at the Flamingo Lounge in Great Falls. P.B. testified that she talked with Keys and danced with him several times. As she was leaving the Flamingo, Keys told P.B. that he would like to speak with her outside. She testified that Keys walked out of the bar ahead of her, and when they got outside, Keys turned around with the zipper of his pants down and his penis exposed. He then twice told P.B., "I want to fuck your socks off." P.B. reacted angrily, and when she threatened to call the police, Keys apologized and left her alone. During the trial, when Keys was on the stand and testified about this incident, he admitted that it occurred the way P.B. had described. He characterized his actions as "being basically rude," and said that he was stupid for having done this.

Keys argues that the court erred in allowing admission of this evidence because it had no relevance to the issue of whether N.B. consented, and did not meet the requirements of Rule 404(b), M.R.Evid. The State counters by arguing that the evidence was relevant because it was highly probative of Keys' motive and intent to commit sexual acts against nonconsenting female victims.

The standard for review of evidentiary rulings is whether the district court abused its discretion. State v. Crist (1992), 253 Mont. 442, 833 P.2d 1052; State v. Sadowski (1991), 247 Mont. 63, 805 P.2d 537. The district court has broad discretion to determine whether or not evidence is relevant and admissible, and absent a showing of an abuse of this discretion, the court's determination will not be overturned. Crist, 833 P.2d at 1054.

In Montana, the admissibility of evidence of other crimes, wrongs, or acts ("prior acts evidence") is controlled by Rule 404(b), M.R.Evid., which provides:

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.

We have stated that the general rule of Rule 404(b) must be strictly enforced except where a departure is clearly justified, and exceptions to the rule must be carefully limited. Crist, 833 P.2d at 1054; State v. Just (1979), 184 Mont. 262, 271-72, 602 P.2d 957, 962. In order to insure that prior acts evidence is not used as character evidence, this Court has outlined four substantive criteria for the admission of such evidence. State v. Matt (1991), 249 Mont. 136, 814 P.2d 52. This rule, which is a modification of the rule originally developed in Just, 602 P.2d at 961, 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 danger of prejudice to the defendant.

In Matt, we also clarified that in addition to satisfying these criteria for admissibility, a party offering such evidence must comply with the procedural requirements originally set forth in Just. In this instance, we first point out that the parties do not dispute that the appropriate procedural precautions were taken. The defendant received proper notice; the trial court admonished the jury at the introduction of the evidence; and the trial court instructed the jury in its final charge on the purpose of the evidence.

The only question in this case is whether a single instance of sexual misconduct, which the State characterized as indecent exposure and assault, was admissible to prove that the sexual intercourse with N.B. occurred without her consent. The State contends that the evidence goes to prove Keys' motive and intent, and that the requirements of the modified Just rule, as announced in Matt, have been satisfied. Although we concede that the incident with P.B., which occurred only a month before the alleged crime, satisfies the requirement that the prior act not be remote in time, we conclude that this is the only one of the modified Just criteria which is met and that the offered evidence fails to meet the requirements for admissibility in every other respect. The mere fact that the incident with P.B. occurred near in time to the alleged crime is not sufficient to overcome the factors which weigh against...