State v. Medina

• Decision Date: 25 September 1990
• Docket Number: No. 90-047,90-047
• Citation: 47 St.Rep. 1832,245 Mont. 25,798 P.2d 1032
• Parties: STATE of Montana, Plaintiff and Respondent, v. Samuel E. MEDINA, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1032

798 P.2d 1032

245 Mont. 25

STATE of Montana, Plaintiff and Respondent, v. Samuel E. MEDINA, Defendant and Appellant.

No. 90-047.

Supreme Court of Montana.

Submitted May 30, 1990.

Decided Sept. 25, 1990.

Deirdre Caughlan, Dunlap & Caughlan, Butte, for defendant and appellant.

Marc Racicot, Atty. Gen., Elizabeth Baker, Asst. Atty. Gen., Helena, Robert M. McCarthy, County Atty., Eileen Joyce-Smith, Deputy County Atty., Silver Bow County, Butte, for plaintiff and respondent.

HUNT, Justice.

Defendant Samuel E. Medina appeals from the jury verdict rendered in the District Court of the Second Judicial District, Silver Bow County, which found him guilty of sexual assault. We affirm.

The issues on appeal are:

1) Whether the District Court erred in admitting evidence of defendant's 1984 conviction of sexual assault.

2) Whether the District Court erred in admitting evidence of the victim's prior consistent statements.

3) Whether appellant's conviction is supported by sufficient evidence.

In early June, 1989, Carol Wold, psychologist for the Butte public school system, was visited by the defendant's 15-year-old daughter, CM, together with two of her friends. The girls wanted to discuss a hypothetical situation in which a girl is sexually abused by her father. Wold told the girls that such abuse should be reported. The girls returned to Wold's office shortly thereafter, and CM revealed that she had been sexually abused by her father. Terry Waldorf of the Department of Family Services was contacted immediately and interviewed CM that day. CM was interviewed several days later by Butte-Silver Bow Detective Thomas Gallagher and related the same account of sexual abuse to him.

Defendant was charged with one count of sexual assault, a felony, in violation of Sec. 45-5-502(1) and (3), MCA. Defendant entered a plea of not guilty to the charge and was released on bail.

Thereafter, the State filed a notice of intent to introduce evidence of other crimes or acts. The information was also amended to expand the dates of commission of the offense to the time period between May 1987 and May 1989.

Defendant filed a brief opposing the introduction of other crimes evidence. Prior to the commencement of trial on November 7, 1989, the court ruled in open court that introduction of other crimes evidence would be permitted.

Trial was held on November 7 and 8, 1989. During trial, CM testified that on May 10, 1989, while her mother was out playing bingo and her sister was at night school, the defendant approached her from behind, put his hand down her pants and inserted his finger into her vagina; he then turned her around, lifted her shirt and fondled her breasts. She also testified that this was not the first time that her father had touched her sexually. CM stated that on an earlier occasion in the family home, when CM had told her father to "shut up," he turned and bit her on the breast. CM related this story to her friend, April Baker, who testified as to the existence of a red mark on CM's breast. Further, CM testified that in May or June of 1987 her father forced her to perform oral sex on him and to stimulate him with her hand until he ejaculated. Similar incidents occurred every two or three weeks until the last episode in May 1989, which prompted her to tell authorities.

CM also related an experience of similar abuse by her father in 1984 when her family lived in Colorado. On that occasion, defendant took CM from her bedroom in the family home, pulled down her pants, and attempted unsuccessfully to have sexual intercourse with her. CM reported the incident to the police, as a result of which charges were filed and defendant entered a plea of guilty.

On cross-examination, defendant questioned CM about her possible motives for making these allegations against her father and whether she had related this sexual abuse to any members of her family. In response, the State presented testimony from various experts who had spoken with CM about the abuse. These experts included Terry Waldorf, Social Worker for the Department of Family Services.

Defendant and the rest of the family testified that, as a result of defendant's previous conviction and the counseling thereafter received by the family, strict rules and safeguards were imposed in the home. Defendant was never allowed to be alone with either CM or her older sister, Nicole. The family testified that these safeguards were rigidly adhered to. Defendant also testified that the only improper sexual contact between himself and CM had been initiated by CM herself. The entire family testified that CM was a disruptive child. CM's mother testified that, the night before CM reported her father's alleged abuse, she and CM had argued about a boyfriend; CM had angrily told her mother that she would "get [them] all" and said: "It worked before and it will work again."

The jury found defendant guilty of felony sexual assault as charged. Defendant was subsequently sentenced to a 20-year term of imprisonment and designated a nondangerous offender. Defendant filed a timely appeal.

The first issue on appeal is whether the District Court erred in admitting evidence of defendant's 1984 conviction of sexual assault.

The admission of other crimes evidence is governed by Rule 404(b), M.R.Evid., which states:

(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.

Generally, evidence of other crimes, wrongs, or acts is inadmissible to prove that a person "who commits a crime probably has a defect of character [and that] a [person] with such a defect of character is more likely than [people] generally to have committed the act in question." 2 Weinstein's Evidence, Sec. 404, page 52 (1990). Other crimes evidence is admissible, however, for other relevant purposes such as "motive, opportunity, intent, preparation plan, knowledge, identity, or absence of mistake or accident." Rule 404(b), M.R.Evid. The admission of such evidence is tempered by Rule 403, M.R.Evid., which requires that all evidence, even if relevant, "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ..." Rule 403, M.R.Evid.

The State must show that the other crimes evidence is relevant in proving the current charge. United States v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir.1982). In this case, the State sought to introduce other crimes evidence of defendant's 1984 sexual assault conviction. To be convicted of sexual assault, defendant must "knowingly" commit the assault. Section 45-5-502(1), MCA. A person acts "knowingly" when he is aware of his conduct or is aware that his conduct created a substantial probability that a circumstance defining an offense would result. Section 45-2-101(33), MCA. Therefore, in this case the State must show that the previous conviction is relevant to prove that defendant was aware that his conduct caused the assault or created circumstances that resulted in the assault.

The State alleged that the prior conviction was relevant to prove that defendant acted "knowingly" by exposing defendant's motive, intent, knowledge, absence of mistake or accident, and consciousness of guilt in participating in the current charge. We hold that the admission of the 1984 conviction is appropriate for the purpose of proving motive, intent, absence of mistake or accident, and knowledge.

The 1984 conviction indicated that defendant "knowingly" participated in the current charge by exposing his prior motive. Knowledge is appropriate to prove that the defendant was aware of his conduct. Also, if the defendant had committed the conduct once before, it is evidence that he knew the consequences that such action would again bring. Similarly, the previous occurrence of an assault on the same victim indicates that defendant was aware of the consequences of such conduct and that he could not claim that his actions were mistaken.

The relevancy of the other crimes evidence is further supported under the test enumerated in the landmark case of State v. Just, 184 Mont. 262, 602 P.2d 957 (1979). Compliance with this test also lends additional support to the probative aspects of such evidence. State v. Eiler, 234 Mont. 38, 762 P.2d 210 (1988). The four factors involved in the test are as follows:

1. The similarity of crimes or acts;

2. nearness in time;

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. (Emphasis in original.)

Just, 602 P.2d at 961.

In considering the first prong of this test, we have previously held that "prior acts need not be identical to the offense committed but be merely of 'sufficient similarity' " in order to comply with this first criteria. State v. Eiler, 762 P.2d at 216, quoting State v. Tecca, 220 Mont. 168, 714 P.2d 136 (1986). See State v. T.W., 220 Mont. 280, 715 P.2d 428 (1986), where similarity was established between the first act of defendant in which he got on top of the victim and pressed his erect penis against her buttocks, and the second act of defendant in which he fondled the victim's breasts and pushed his hands into her pants.

Defendant's 1984 conviction is sufficiently similar to the current charge. The 1984 conviction involved inappropriate sexual contact with his daughter, CM, who at that time was ten years old. Because defendant's attempt at sexual intercourse was unsuccessful, defendant was convicted of sexual assault. The current charge also involved inappropriate sexual contact by defendant with the same daughter, who was fifteen at the time. Although the activities involved in each situation are not...