State v. Tecca
| Decision Date | 11 March 1986 |
| Docket Number | No. 85-477,85-477 |
| Citation | 43 St.Rep. 264,220 Mont. 168,714 P.2d 136 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Lee TECCA, Defendant and Appellant. |
| Court | Montana Supreme Court |
Knuchel & McGregor, Karl Knuchel, Livingston, for defendant and appellant.
Mike Greely, Atty. Gen., Kathy Seeley, Asst. Atty. Gen., Helena, Wm. Nels Swandal, Co. Atty., Livingston, for plaintiff and respondent.
Defendant Lee Tecca appeals his July 30, 1985, jury conviction in the District Court of the Sixth Judicial District on one count of felony sexual assault. We affirm.
On the evening of November 8, 1984, the prosecutrix, N.L., stayed overnight with her friend, Cindy Tecca, at the Tecca residence. Defendant had recently finished a term with the Air Force and was living in the Tecca home at the time. N.L. was eleven years old and defendant 23 years old. Defendant was born of Mrs. Tecca's previous marriage, and is a half-brother to Cindy, as well as the other Tecca children.
About 8:00 p.m. that evening, defendant brought a six-pack of beer home and took the beer downstairs where Cindy and N.L. were playing. Both girls began drinking beer. About 9:00 p.m., defendant, Cindy, and N.L. left the house to go driving. Mrs. Tecca was studying in her bedroom, and was unaware the girls were drinking and that they had left with defendant.
Defendant bought a twelve-pack of beer, which was placed in the back seat with the girls. They drove around town for about an hour and a half and then returned to the Tecca home about 10:30 p.m. By this time, N.L. and Cindy had each consumed at least four or five beers; defendant testified that he had not more than two beers during the course of the evening.
As they entered the house, defendant suggested the girls go right to sleep and not make any noise. The girls had arranged their sleeping bags on the floor in the basement earlier in the evening, and planned on sleeping there. N.L. testified that she slept for a while, but was awakened by defendant. Defendant was kneeling beside N.L. and had his hand in her underpants with his finger in her vagina. Defendant asked N.L. to roll over, but she wouldn't so he left. A light in the hallway was on, and N.L. could see that it was defendant; he was wearing only his underwear. About 20 minutes later Cindy became sick. After several trips to the bathroom, Mrs. Tecca heard the commotion and moved the girls upstairs.
N.L. did not tell her parents about the incident until a week later. An information was filed January 4, 1985, charging defendant with felony sexual assault, in violation of Sec. 45-5-502(3), MCA.
On April 10, 1985, the prosecution filed a Notice of Intent to Introduce Evidence of Other Acts. Defense counsel responded with a motion in limine to bar introduction of prior acts evidence. A hearing was held before the district judge on May 24, 1985, and the motion in limine denied. Defense counsel moved for reconsideration of the motion in limine, and the motion was again denied on July 29, 1985, prior to commencement of trial.
Trial was held July 29, 1985. Following the testimony of N.L., testimony was given by R.T., S.W., K.W., and L.C., concerning prior acts of defendant. Prior to R.T.'s testimony about defendant's previous acts, the trial judge instructed the jury that they were to consider such evidence only for the limited purposes of proving a common scheme or method used in the commission of the alleged offense, identity of the offender, or existence of intent. R.T., defendant's half-sister, testified that she had moved out of the Tecca home a week prior to the incident, because on three occasions the previous month she had awakened at night to find defendant sitting next to her bed clothed in only his underwear with his hand resting on her bed. R.T. testified that similar incidents occurred the previous two times defendant was on leave, during 1982 and 1983. R.T. further testified that when she was eight (nine years ago), defendant climbed in her bed at night and touched her breasts and vagina. This occurred for nearly two years, but then stopped after defendant's father became aware and spoke with defendant.
S.W. testified about an incident involving defendant when she visited the Tecca home about five years ago. She went to defendant's room with Cindy, and defendant asked S.W. to remove her clothing. S.W. refused, so defendant put his arms around her from behind and unbuttoned her pants. She buttoned them back up and left. S.W. was nine years old at the time.
K.W. testified about two incidents with defendant that occurred while she was at the Tecca home. On each occasion K.W. was in defendant's room and defendant asked her to have sex with him and he exposed himself. These incidents occurred approximately two and four years ago, when K.W. was age eight and ten, respectively.
L.C. testified that when she was twelve, about three years before, she spent the night with R.T. at the Tecca home. L.C. awoke that night to find defendant next to her bed with his hand resting on the bed, but left immediately when he realized L.C. was awake.
Jury instruction no. 16 was a limiting instruction informing the jury that the prior acts evidence was admitted to show proof of motive, opportunity, plan, knowledge, identity and absence of mistake or accident, and that such evidence was not to be used for any other purpose. After deliberation, the jury returned a verdict of guilty of sexual assault, a felony. The district judge sentenced defendant to 5 years, with 4 years, 11 months conditionally suspended. Defendant appeals his conviction and raises the following issue:
Whether the District Court erred in allowing admission of prior acts evidence?
Defendant contends that the admission of testimony relating to his prior acts was a violation of Rule 404(b), Mont.R.Evid., and did not meet the guidelines established by this Court in State v. Just (1979), 184 Mont. 262, 602 P.2d 957. Rule 404(b), Mont.R.Evid., provides:
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.
Rule 403, Mont.R.Evid. requires the exclusion of otherwise relevant evidence: "... if its probative value is substantially outweighed by the danger of unfair prejudice ..."
In State v. Just, supra, we established a four-element test to determine the admissibility of defendant's prior acts or crimes. The four elements are:
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. 184 Mont. at 269, 602 P.2d at 961.
Applying this test to the facts of the present case, we find the trial judge was correct in allowing testimony concerning prior acts of defendant.
While the prior acts were not identical to the offense committed in this case, there is sufficient similarity to sustain admission. Each of the incidents involved young girls and occurred in the Tecca home. The testimony of S.W., K.W., and R.T., clearly shows defendant's sexual interest in young girls. Defendant asked S.W. to remove her clothing and then unbuttoned her pants; defendant asked K.W. for sex and exposed himself to her; and defendant went to bed with R.T. for almost two years and touched her all over. Both R.T. and L.C. testified that they had been awakened in the middle of the night to find defendant next to the bed dressed only in his underwear. These incidents bear sufficient similarity to the charged offense to uphold their admission.
The prior acts of defendant testified to by these witnesses go back as far as nine years. Defendant asserts that such evidence is too remote, and violates the time limits...
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