No. 14861
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1979
STATE O M N A A
F O T N ,
P l a i n t i f f and Respondent,
VS.
MICKEY G N HANSEN,
E E
Defendant and A p p e l l a n t .
Appeal from: D i s t r i c t Court of t h e Nineteenth J u d i c i a l D i s t r i c t ,
Honorable R o b e r t M. H o l t e r , Judge p r e s i d i n g .
Counsel o f Record:
For Appellant:
Daley, S h e r l o c k and N a r d i , K a l i s p e l l , Montana
S t e p h e n J. N a r d i a r g u e d , K a l i s p e l l , Montana
F o r Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Richard Larson argued, A s s i s t a n t A t t o r n e y General,
H e l e n a , Montana
P a u l Cooley ( S t u d e n t I n t e r n ) a r g u e d , M i s s o u l a , Montana
W i l l i a m A. Douglas, County A t t o r n e y , L i b b y , Montana
Shaun R. Thompson a r g u e d , Deputy County A t t o r n e y ,
Libby, Montana
Submitted: December 1 0 , 1979
Decided: f,' 3 2 - k: &
Mr. Justice John C. Sheehy delivered the Opinion of the Court.
Mickey Gene Hansen appeals from a felony conviction
entered in the District Court, Missoula County, on a charge
of sexual intercourse without consent.
Carol Birdsall, the complaining witness in this case,
worked at a cafe in Eureka, Montana. After work at about
1:00 a.m. on September 2, 1978, she went to a bar next to
the cafe. There she talked with defendant Hansen and a
friend of Hansen's. The group had a drink and discussed the
possibility of Birdsall getting some marijuana from Hansen.
After the bar closed, Hansen, his friend and Birdsall
left the bar and proceeded out of town in Hansen's truck.
They planned to smoke some marijuana. The group drove to
a campground outside Eureka, parked and smoked the marijuana.
Hansen's friend passed out at this point.
The testimony conflicts as to what happened next. Hansen
stated he then returned Birdsall to her car in Eureka
unmolested. Birdsall testified that she asked Hansen to
take her home, but instead he drove her to an isolated part
of the mountains. Birdsall stated Hansen then became
suggestive and tried to fondle her. When she resisted, Hansen
allegedly told her that she could have intercourse with him
or walk home. Birdsall told Hansen she would walk home but
he refused to allow her and told her he would wake his friend
and both of them would rape her.
Birdsall testified that she and Hansen then got out of
the truck and she started to walk away. As she did, Hansen
allegedly grabbed her and they fell to the ground. ~irdsall
testified they struggled, Hansen twisted her thumb against
her wrist, removed some of her clothing and forced intercourse
with her.
After the act, Birdsall stated Hansen got back into the
truck and drove the group back to Eureka. Birdsall stated
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that Hansen told her nobody had to know about the incident
driving back to Eureka.
Prior to trial, Hansen filed a motion in limine seeking
to exclude any evidence of his involvement in prior crimes.
The District Court denied the motion. At the trial, Gayle
Yeager testified that Hansen had raped her approximately two
and one-half years earlier. Yeager stated she knew Hansen
and accepted a ride home from him after the bars closed.
Instead of taking her home, Yeager testified Hansen drove
her to an isolated area outside Eureka. When Yeager resisted
advances Hansen made toward her, Hansen grabbed her, twisted
her thumb against her wrist and raped her. Hansen then drove
Yeager back toward town and told her not to report the rape.
Hansen was convicted of aggravated assault on charges stemming
from this earlier incident.
The sole issue raised by this appeal is whether the
District Court erred in allowing the admission of evidence
of the earlier sexual assault.
Evidence of other crimes is generally not admissible to
show a defendant committed a particular crime charged. State
v. Just (1979), - Mont . , 602 P.2d 957, 960, 36 St.
Rep. 1649, 1652; State v. Lave (1977), Mont . , 571
P.2d 97, 100, 34 St.Rep. 1298, 1301; State v. Heine (19751,
169 Mont. 25, 27, 544 P.2d 1212, 1213; State v. Jensen
(1969), 153 Mont. 233, 238, 455 P.2d 631, 633. There is,
however, a notable exception to the general rule which the
state relies on in this case. We stated the exception in
Just, supra, as follows:
"There emerges a four element test to determine
the admissibility of evidence of other crimes
or acts in criminal prosecutions such as the one
here ... The four factors are:
"1. similarity of crimes or acts;
"2. nearness in time; -
and
"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." 602 P.2d at 961, 36 St.Rep.
at 1653.
In applying the exception, each case must rest upon
its own circumstances. State v. Merritt (1960), 138 Mont.
546, 549-50, 357 P.2d 683, 685. Further,
"'The general rule should be strictly enforced
in all cases where applicable, because of the
prejudicial effect and injustice of such evidence,
and should not be departed from except under
conditions which clearly justify such a departure.
The exceptions should be carefully limited, and
their number and scope not increased.' State v.
Tiedemann (1961), 139 Mont. 237, 242-43, 362 P.2d
529, 531.
"Accord, State v. Sauter, 125 Mont. at 116, 232
P.2d at 734." Just, 602 P.2d at 962, 36 St.Rep. at
1656.
Thus, the rule concerning admission of evidence of
other crimes and the exception to the rule are clearly set
out in Montana. The problem presented by this case is
applying the rule to the facts here.
Before applying the above test to the instant case,
it should be noted that the Just case sets out procedural
guidelines to follow in cases of this nature. Just, supra,
602 P.2d 962-964, 36 St.Rep. 1656-58. The procedures,
however, do not have retroactive effect. Just, 602 P.2d at
963, 36 St.Rep. at 1657. Since this case was tried before
the Just decision, failure to follow the procedures is not
error.
The first element of the exception to the other crimes
admission rule to be considered is the similarity of the
prior crime to the charged crime. Definite similarities
exist here. Each incident began in a Lincoln County bar.
Both victims left the bar with Hansen in the early morning
hours. Hansen drove both women into the mountains
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and allegedly made advances toward them. When Birdsall
and Yeager resisted, Hansen grabbed them, twisted their
thumbs against their wrists and forced intercourse with
them. Hansen also drove both women back to town and told
them not to report the rape.
There are, however, differences between the crimes.
Hansen knew Yeager fairly well, but did not meet Birdsall
until the evening of the alleged rape. Yeager and Hansen
left the bar alone. Birdsall and Hansen left the bar
accompanied by a friend of Hansen's. Hansen threatened
Birdsall with multiple rape. He made no such threat to
Yeager.
Prior Montana cases speaking to the degree of similarity
necessary to satisfy this element of the other crimes exception
include Just, Jensen and Merritt. In Just, we found sufficient
similarity where the prior acts were all sexual, they involved
the same victim and the defendant always arranged to be at
home alone with the victim before committing the crime. 602
P.2d at 961, 36 St.Rep. at 1653-54. In Jensen, the court
also held the acts sufficiently similar. The Court did so
despite the fact that the defendant was charged with lewd
acts on a child and there was no proof any of the women who
testified to previous sexual assaults by the defendant were
under 16. Jensen, supra, 153 Mont. at 239, 455 P.2d at 634.
In Merritt, the defendant was charged with forgery. In the
crime charged, the defendant allegedly signed another's name
to a document. In the prior act, defendant purportedly
obtained a signature on a document by trickery. The Court
held the acts too dissimilar to qualify for the exception.
Merritt, supra, 138 Mont. at 550-51, 357 P.2d at 685.
The above summary of cases shows that in the past we have
considered each case on its particular facts. No set
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standard appears to emerge from the cases. Case law from
other jurisdictions holds that when the alleged similarities
between crimes reveals nothing more than a sequence of
events common in the crime charged, the acts are not unusual
and distinctive enough to come within the purview of the
exception. United States v. Myers (5th Cir. 1977), 550 F.2d
1036, 1045-1048, cert-den. 439 U.S. 847; People v. Weathers
(1969), 79 Cal.Rptr. 127, 131-32, 274 Cal.App.2d 232; People
v. Haston (1968), 70 Cal.Rptr. 419,427-428, 69 Cal.2d 233;
444 P.2d 91, 99-100. The California Court explained the
rationale for this requirement as follows: ". . . those
common features which appear to be distinctive . . . lose
this quality when it is considered that all who commit this
type of scheme usually follow approximately the same script
and use similar props." Weathers, supra, 79 Cal.Rptr. at
We find the rationaleexpressed by the California Court
persuasive. Further, cases of this nature involve the
application of an exception to the other crimes rule. That
rule is based on the sound principle that a person should
only be placed in jeopardy for the crime charged, not prior
wrongful acts. Any exception to the rule must be strictly
construed and well defined. Just, supra, 602 P.2d 962, 36
St.Rep. at 1656; State v. Tiedemann (1961), 139 Mont. 237,
242-43, 362 P.2d 529, 531. Adopting the position taken by
the commentators and in other jurisdictions is a move toward
achieving that goal. We therefore adopt the position.
Under this standard, the other crime here is not suf-
ficiently similar to satisfy the first element of the
exception to the other crimes admission rule. Numerous rapes
follow the pattern of barroom pickup, voluntary entry into
the offender's vehicle by the victim, driving to a remote area,
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advances, resistance and forcible intercourse. The
sequence of events has no distinctive qualities that dist-
inguish the acts from other rapes thus bringing the events
within the purview of the similarity element of the other
crimes admission rule exception.
The second element of the exception to be considered
is the nearness in time of the prior act to the charged
crime. The question of remoteness in time is generally a
discretionary matter for the District Court. State v. Nicks
(1958), 134 Mont. 341, 342, 332 P.2d 904. Nicks also points
out, ". . . However it is not an uncontrolled discretion
and if this court regards the matter too remote it should
have no hesitancy in ruling that there has been an abuse
of discretion." 134 Mont. at 342, 332 P.2d at 304.
The crimes here are separated by two years, six months
and one week. Although a three year interval between a
prior act and the charged crime is close to the limit of
being too remote, other acts occurring three years prior
to the crime have been held admissible when the acts engaged
in by the defendant constitutes a continuing course of
conduct. Just, supra, 602 P.2d at 961, 36 St.Rep. at 1654;
Heine, supra, 169 Mont. at 31-32, 544 P.2d at 1215 (Mr. Justice
Castles specially concurring); Jensen, supra, 153 Mont. at
239, 455 P.2d at 634. Factors that affect the determination
of whether a prior act is too remote includes the number of
incidents that have occurred, the nature of the incidents
and the proximity of the last act to the date of the occurrence
of the conduct at issue. State v. Minns (1969), 80 N.M.
269, 454 P.2d 355, 358.
Viewing this case in light of these decisions, we
find the District Court abused its discretion in holding
Hansen's prior act was near enough in time to the crime
charged to satisfy this element of exception. It was not
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sufficiently similar to the prior act to meet the test
established in Montana for holding an act sufficiently
similar to qualify for the exception. Further, the last and
only act occurred at least 2 1/2 years prior to the alleged
rape here. Under these circumstances, the acts are too
remote to fall within this element of the other crimes
admission exception. See also, State v. read away (1977),
116 Ariz. 163, 568 P.2d 1061, 1064, n. 2; State v. Gammons
(1963), 258 N.C. 522, 128 S.E.2d 860, 862; Annot. 88 A.L.R.3d
8 (1978).
The facts here also fail to meet the criteria for the
third element of the exception to the other crimes admission
rule. The third leg of the exception requires other crimes
to tend to establish a common scheme, plan or system. We
addressed the issue of what constitutes a common scheme,
plan or system in State v. Sauter (1951), 125 Mont. 109, 232
P.2d 731. In Sauter, the defendant and a companion picked
up a woman in a bar. The group left to drive to another
town. Once on the road, both men raped the woman. Evidence
introduced at the defendant's trial showed he had been with
a group of four men a month earlier who had picked up a
woman in a bar and left the bar with her to give her a ride
home. Instead, they drove the woman to an isolated location
and raped her. The Court held the evidence of the first rape
inadmissible stating, "Sexual acts, whether rape or no rape,
originating in barroom pickups, powered by the urge, and
consummated in automobiles, are entirely too common in this
day and age to have much evidentiary value in showing a
systematic scheme or plan." Sauter, 125 Mont. at 112, 232
P.2d at 732.
Sauter deals a serious blow to the State's case here.
The facts in Sauter are very similar to the instant case.
If anything, Sauter presents a stronger indication of a plan
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or scheme because it involves a multiple-party rape,
less common than single party rapes, and the rapes occurred
within a month of each other.
Hansen and Yeager left the bar alone on the previous
crime. In the crime charged here, Hansen and Birdsall left
the bar in the company of a third party. If Hansen's plan
or system was to pick up his victims in bars, drive them
to isolated locations and then rape them, why did he allow a
third party to leave the bar with him? That type of scheme
obviously does not include bringing someone along to witness
the rape. It could be argued Hansen and his companion both
planned to rape Birdsall. Birdsall testified that Hansen
threatened her with multiple-party rape. That type of
scheme is also inconsistent with the evidence of the prior
crime testified to by Yeager. In short, the conduct engaged
in by Hansen on these two occasions simply does not establish
a common method of operation in committing the crime charged.
The conduct therefore does not satisfy this element of the
exception to the admission of other crimes rule.
Consideration of the final element of the exception to
the other crimes rule requires a determination of whether
the probative value of the evidence is substantially outweighed
by the prejudice to the defendant. Prejudice in cases such
as this manifests itself in three forms. First, proof of
other offenses subjects a defendant to surprise by requiring
a defendant to defend against a crime not charged. Lave,
supra, 571 P.2d at 100. 34 St.Rep. at 1301. Second, the
jury might overestimate the probative value of the evidence
and assume that merely because the defendant has committed
crimes before, he is likely to be guilty of the crime charged.
87 Harvard L.Rev. 1074, 1076. Recent Cases: ~vidence
(1974). Third, the evidence may indicate to the jury that the
defendant is a proper candidate for punishment. Just,
supra, 602 P.2d at 963, 36 St.Rep. at 1656; 87 Harvard L.
Rev. supra, at 1076.
The first manifestation of prejudice does not exist
in this case. The State notified Hansen three months before
trial that Yeager would testify. The State also provided
Hansen with a copy of Yeager's statement to the police made
after the first incident. Hansen cannot claim prejudice 'or
surprise under these facts.
The other indications of prejudice are more difficult
to measure. Jury instructions explaining the limited purpose
for which the jury is to consider evidence of other crimes
reduce the prejudicial effect of the evidence. 2 Weinsteins
Evidence 5404-70 (1979). A cautionary instruction was given
here thus reducing the prejudicial effect of the evidence.
However, as the above analysis indicates, the acts involved
here were not sufficiently similar or near in time to
indicate the commission of the first act had probative
value in determining if Hansen committed the charged crime.
Neither does the commission of the acts establish a common
scheme, plan or system. The introduction of the first act
therefore has very little probative value in establishing
any fact in issue in Hansen's trial. On the other hand,
the introduction of the evidence certainly worked to
prejudice Hansen's case. As we stated in Just ". . .
Evidence of other acts, especially of the nature testified
to in this case, invariably will result in prejudice to the
defendant to a certain degree." 602 P.2d at 961, 36 St.Rep.
at 1654.
Given the lack of probative value of the evidence of
the other crime here and the amount of prejudice inherent in
showing a defendant has committed a prior sex offense, we
conclude the prejudicial effect of introducing such evidence
here substantially outweighs its probative value.
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The facts here fail to bring this case within the
exception to the admission of other crimes rule. We therefore
reverse the conviction of the defendant and remand the case
to the District Court for retrial.
cj&-&:gF-l-d--
We Concur:
Chief Justice
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Justices
Mr. Justice Daniel J. Shea concurring:
I agree with the result but I do not agree with the
majority analysis. As I stated in a dissent in the case of
,
State v. Just (1979), - Mont. - 602 P.2d 957, 36 St.Rep.
1649, unless a need is first established for the admission of
evidence of other crimes, the trial court should proceed no
further in exercising its discretion as to whether or not to
admit the evidence. It should not be admitted. No need was
first established here, and for that reason, I would reverse
the case.
Since evidence of this kind is so inherently prejudicial,
I would require that a trial court, in admitting evidence of
this kind, first enter a lengthy order detailing precisely
what factors it considered and its reasons for admitting
the evidence. This is the only way the parties and an
appellate court can ever be assured that the factors
involved were carefully weighed and that the decision to
admit the evidence was not lightly made.
Thus, no need having been demonstrated in the record
for use of such evidence, I would reverse the conviction.
My position does not require an analysis of whether or not
there was compliance with the four point test as discussed
by the court.
'-, , .
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Justice