State v. Long

• Decision Date: 30 October 1986
• Docket Number: No. 85-564,85-564
• Citation: 43 St.Rep. 1948,726 P.2d 1364,223 Mont. 502
• Court: Montana Supreme Court
• Parties: STATE of Montana, Plaintiff and Respondent, v. Chancy LONG, Defendant and Appellant.

Page 1364

726 P.2d 1364

223 Mont. 502

STATE of Montana, Plaintiff and Respondent, v. Chancy LONG, Defendant and Appellant.

No. 85-564.

Supreme Court of Montana.

Submitted on Briefs July 24, 1986.

Decided Oct. 30, 1986.

Leanne M. Schrauder, Bozeman, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, A. Michael Salvagni, Co. Atty., Marty Lambert, Deputy Co. Atty., Bozeman, for plaintiff and respondent.

SHEEHY, Justice.

Defendant Chancy Long appeals his conviction for two counts of sexual assault following a jury trial in the District Court, Eighteenth Judicial District, Gallatin County. We affirm his conviction and remand his sentence for rehearing.

The principal issues raised by Long on appeal are: (1) whether the District Court improperly allowed the testimony of juvenile girls, other than those for whom the charges were filed, as testimony pertaining to prior acts under Rule 404(b), M.R.Evid.; (2) whether the District Court committed error in its cautionary and jury instructions when it described the other girls' testimony as evidence of prior crimes, rather than as evidence of prior acts; (3) whether the District Court erred in refusing to permit evidence of the absence of sexual assault of defendant's grandchildren under Rule 106, M.R.Evid.; (4) whether the District Court erred in refusing to instruct the jury on the offense of misdemeanor assault; (5) whether defendant received effective assistance of counsel; and, (6) whether the county prosecutor's opening and closing statements unfairly prejudiced the defendant.

On November 20, 1984, an information was filed against the defendant charging him with three counts of sexual assault against two four-year-old girls and a six-year-old girl. In December and again in March, the county attorney filed notices with the District Court and defendant notifying them that the county attorney intended to introduce evidence of other crimes, wrongs or acts involving four other girls. The girls' ages ranged from 5 to 9 years at the time defendant was in contact with them. The prosecution contends the evidence was necessary to establish that defendant's behavior was indicative of a common scheme of assaulting very young girls. In April, 1985, defendant was convicted in a trial by jury of sexually assaulting the two four-year-old girls. The District Court dismissed the count of felony sexual assault involving the six year old after the State finished its case in chief.

At the time the offenses were committed, defendant owned and operated a trailer court in Belgrade, Montana. The children in the trailer court would often visit the defendant's house to play with defendant's two grandchildren. The incidents of abuse occurred between April, 1983, and October, 1984. In October, the parent of one of the four year olds overheard a conversation between her daughter, W.B., and the other four year old, A.M., describing defendant's assaultive actions. Later at trial the two girls testified that defendant had pulled their pants down and rubbed their vaginas.

The prosecution's evidence of other crimes, wrongs or acts involving the four other children was as follows: H.D., an eight year old, testified that when she was alone with defendant he touched her near her "private spot" which she indicated was below her naval at her belt line. T.D., a six year old, testified that defendant touched her on the thigh when he was giving her a ride to school. This was the charge dismissed after the State's case in chief. Another T.D., age 10, testified that defendant held her hand tightly with both of his hands frightening her because she couldn't get away from him. M.M., age five, testified that he had "rubbed her bottom" several times when she was alone with him. Finally, N.S. testified that in 1980, when she was nine years old, defendant surprised her by kissing her on the lips. N.S. reported the incident to her mother and from that time on went to another neighbor's house after school, instead of to the defendant's house.

The defendant is asserting on appeal that the testimony of H.D., M.M., N.S. and ten year old T.D. was improperly admitted by the District Court because their testimony violated Rule 404(b), M.R.Evid. and State v. Just (1979), 184 Mont. 262, 602 P.2d 957.

The procedural aspect of this contention must be considered first. It is a well established rule in Montana that if counsel fails to object to an issue at trial, the issue cannot be raised for the first time on appeal. In State v. Patton (1979), 183 Mont. 417, 600 P.2d 194, this Court considered allegations of error which were raised for the first time on appeal and held that:

[a] District Court will not be put in error where it was not accorded an opportunity to correct itself. State v. Walker (1966), 148 Mont. 216, 223, 419 P.2d 300. The admissibility of evidence to which no objection is made cannot be reviewed on appeal. State v. Armstrong (1977), 172 Mont. 296, 562 P.2d 1129, 1132; State v. Dillon (1951), 125 Mont. 24, 30, 230 P.2d 764. The failure to object or to move to strike testimony precludes objection on appeal. State v. Cripps (1978), 177 Mont. 410, 582 P.2d 312, 317, 35 St.Rep. 967.

State v. Patton (1979), 183 Mont. at 422, 600 P.2d at 197.

In State v. Powers (1982), 198 Mont. 289, 645 P.2d 1357, this Court examined the right to appeal an issue, not dealt with at trial that testimony had been admitted in violation of Rule 404(b), M.R.Evid., stating:

Defendants next argue that the District Court erred in admitting testimony of prior acts of violence committed by persons not defendants against the victim or other children. Initially, defendant Powers' failure to object to this issue at trial bars his raising it on appeal.

State v. Powers (1982), 198 Mont. at 299, 645 P.2d at 1363.

In his appeal, defendant is objecting to the testimony of H.D., M.M., N.S., and ten year old T.D. However, at trial defendant objected only to M.M.'s testimony, stating:

I didn't object earlier to [N.S. or H.D. & 10 year old T.D.]. That testimony doesn't amount to a hill of beans, judge. There is a little bit of smoke there but I don't see fire anywhere.

Now, in the testimony of M.M., which I was just able to ascertain at lunch time today, they were talking about an act very similar to the allegations that are charged. I think that it is extremely prejudical to Mr. Long. In fact, the prejudicial effect substantially outweighs the probative value, and I would ask the Court not to allow them to call this most recent witness who will testify to acts that have not been charged.

It is apparent from the record that defendant's trial counsel objected only to the admissibility of M.M.'s testimony. Hence the issue now before this Court is whether M.M.'s testimony was admitted in violation of Rule 404(b), M.R.Evid. and State v. Just, supra.

Rule 404(b) provides that:

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.

Admissibility is also governed by four specific substantive rules which are: (1) similarity between the crime charged and the previous crimes, wrongs or acts; (2) nearness in time between the charged crime and the previous crimes, wrongs or acts; (3) tendency to establish a common scheme, plan or system; and (4) a determination that the probative value of the evidence is not substantially outweighed by the prejudice to the defendant. State v. Jensen (1969), 153 Mont. 233, 455 P.2d 631; State v. Just, supra.

Defendant contends that the act testified to by M.M. was not sufficiently similar to defendant's assaults upon A.M. and W.B. to satisfy the first element of the Just test. Defendant's assault against A.M. and W.B., both four years old, involved pulling the girls pants to their knees and rubbing their vaginas. M.M., age 5, testified that defendant had "rubbed" her bottom. Her clothes had not been removed. Defendant argues that this act, standing alone, had no sexual connotation and that it took on evil connotations only when coupled with the charges of sexual assault.

It must be noticed that sexual abuse of children takes subtle forms. Further, because sexually abused children often have a difficult time communicating what has happened to them, it is wise to defer to the perceptions of the finder of fact. In this case the trial judge admitted M.M.'s testimony over defendant's trial counsel's objection and properly submitted the matter to the jury for them to weigh the evidence.

This Court established in State v. Tecca (Mont.1986), 714 P.2d 136, 43 St.Rep. 264, that it is not necessary that the prior acts be identical to the charged offense. The test established in Tecca requires only that there be "sufficient similarity" between the charged offense and the other crime, wrong or act. Here, the State introduced evidence of the prior act to show a common scheme, plan or design in the defendant's conduct. Because of the subtle nature of child abuse, we find the evidence or prior acts is similar enough to the acts involved to justify its admission.

Defendant alleges on appeal that M.M.'s testimony was extremely prejudicial and that the prejudicial effect substantially outweighed the testimony's probative value. We disagree. The State had evidence of defendants acts against A.M. and W.B. Given the elusive nature of sexual assault against very young children, M.M.'s testimony was probative of the State's theory that defendant's actions were not an isolated event.

Defendant next alleges error in the trial court's application of the Just procedural rules. These guidelines require (1) that notice be given to defendant prior to trial that evidence of other crimes, wrongs, or acts will be introduced; (2) that there be an admonition by the...