No. 85-262
I N THE SUPREME COURT O THE STATE O F MONTANA
F
1986
STATE O MONTANA,
F
P l a i n t i f f and A p p e l l a n t ,
-vs-
T . h7. ,
Defendant and Respond.ent.
APPEAL F O :
R M D i s t r i c t Court of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f Y e l l o w s t o n e ,
The Honorable R o b e r t Holmstrom, Judge p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant :
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
Kimberly A. K r a d o l f e r a r g u e d , A s s t . A t t y . G e n e r a l
Sherry Petrovich S t a d l e r argued, Legal I n t e r n f o r
A t t o r n e y G e n e r a l , Helena, Montana
Harold H a n s e r , County A t t o r n e y , B i l l i n g s , Montana
T e r e s a McCann O'Connor a r g u e d , Deputy County A t t o r n e y
For Respondent:
John Adams a r g u e d , B i l l i n g s , Montana
Submitted: J a n u a r y 1 6 , 1986
Decided: F e b r u a r y 25, 1986
Filed: FEB 251986
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an interlocutory appeal filed by the State of
Montana after the District Court granted defendant's motion
in limine precluding the State from using in any way
defendant's Youth Court records and from offering or
attempting to offer any evidence of alleged prior offenses
which occurred while the defendant was a minor. We reverse
and remand for trial consistent with the holding in this
opinion.
The defendant, T. W., is charged with incest, pursuant
to S 45-5-507, MCA. This offense was committed April 2,
1984, against his fifteen year old sister who is
developmentally disabled and functions at an IQ level of
about 81.
Prior to this incident, the victim had been placed in
various foster homes because her mother was having mental
problems. She spent weekends in her mother's home. During
one of these weekend visits, T. W. took her into her mother's
bedroom, pushed her face down on the bed with his hand over
her mouth so she could not scream and pressed his erect penis
against her buttocks to stimulate himself. When their mother
discovered them, the victim was crying.
This incident was reported to the Department of Social-
and Rehabilitation Services (SRS) but no charges were filed.
The matter was disposed of informally, ra.ther than being
adjudicated in Youth Court. The victim's foster care was
continued. T. W. was given the opportunity to join the Army
and did so in March, 1981. The victim then returned home
pursuant to court order.
When T. W.'s tour of duty ended in March, 1984, he
returned to Montana, to live with an aunt. He visited his
mother April 2 when he again molested the victim after
following her into her bedroom. He fondled the victim's
breasts and pushed his hands into her pants. He told her not
to tell anyone. She reported the incident to school
personnel who reported to SRS and law enforcement personnel.
T. W. denies the offense and has offered to join the Navy.
Defense counsel filed its motion in limine to preclude
the State from using evidence of any incidents prior to the
one at issue. The State filed a notice of intent to rely on
evidence of other crimes pursua.nt to Rule 404 (b) M.R.Evid.
Defendant's motion in limine was granted.
The issues presented for appeal are:
(1) Whether the Youth Court Act prohibits the
introduction of acts committed by the defendant when he was a
juvenile.
(2) Whether the past act is admissible as other crimes
evidence under Rule 404 (b), M.R.Evid., and State V. Just
(1979), 184 Mont. 262, 602 P.2d 957. The Montana Youth Court
Act does not prevent the mother from testifying. The
testimony at issue here concerns defendant's mother relating
what she observed of defendant on other occassions. The
State does not seek to use any statements made by a
participant during a juvenile proceeding. The applicable
statute is 5 41-5-402, MCA, which provides:
An inciminating statement relating to any
act or omission constituting delinquency
or need of supervision made by the
participant to the person giving counsel
or advice in the discussions or
conferences incident thereto may not be
used against the declarant in any
proceeding under this chapter, nor may
the incriminating statement be admissible
i n any c r i m i n a l proceeding against the
declarant.
S i n c e no s t a t e m e n t o f a " p a r t i c i p a n t " i s h e r e invof.ved, the
testimony given by the mother of the defend.ant is not
p r i v i l e g e d under 5 41-5-402, MCA.
T h i s Court r e c o g n i z e s t h a t :
Generally, evidence of o t h e r offenses o r
of o t h e r s i m i l a r a c t s a t o t h e r times i s
i n a d m i s s i b l e f o r t h e p u r p o s e o f showing
t h e commission o f t h e p a r t i c u l a r c r i m i n a l
o f f e n s e charged. [Citations omitted.]
The r e a s o n i s t h a t t h e d e f e n d a n t i s
e n t i t l e d t o be informed o f t h e o f f e n s e
c h a r g e d s o t h a t he need p r e p a r e h i s
defense only t o t h a t p a r t i c u l a r offense.
Proof o f o t h e r o f f e n s e s s u b j e c t s him t o
s u r p r i s e and t o a d e f e n s e o f m u l t i p l e
collateral or unrelated issues.
[Citations omitted.] This r u l e applies
t o evidence of o t h e r offenses r e g a r d l e s s
o f whether d e f e n d a n t was a c t u a l l y charged
with t h e o t h e r offense. [Citations
omitted. 1
J u s t , 184 Mont. a t 267-68, 602 P.2d a t 960.
There i s an i m p o r t a n t e x c e p t i o n t o t h i s g e n e r a l r u l e ,
which ... i n t h i s j u r i s d i c t i o n , i s of
ancient lineage. Simply put, the
e v i d e n c e o f p r i o r s e x u a l a c t s by a
d e f e n d a n t and a [ v i c t i m ] i s a d m i s s i b l e i n
a t r i a l f o r a sexual offense [:I
(1) When s i m i l a r a c t s w i t h t h e same
prosecuting witness a r e involved;
( 2 ) When s i m i l a r a c t s a r e n o t t o o remote
in time; and
( 3 ) When e v i d e n c e of other offenses
t e n d s t o e s t a b l i s h a common scheme, p l a n
o r system, where such o t h e r o f f e n s e s a r e
s i m i l a r t o , c l o s e l y c o n n e c t e d w i t h and
n o t t o o remote from t h e one c h a r g e d , and
where t h e y a r e s o t h a t t h e p r o o f o f one
tends t o e s t a b l i s h the other. [Citations
omitted. ]
J u s t , 1-84 Mont. a t 267-68, 602 P.2d a t 9 6 0 .
The r u l e and t h e e x c e p t i o n i s c o d i f i e d i n Rule 4 0 4 ( b ) ,
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.
The Commission Comment to Rule 404 (b), M. R.Evid, is clear.
The commission intended "that there be no change in the
admissibility of such evidence under existing Montana law. I
'
In order to protect defendants in criminal cases, the
potentially prejudicial evidence of other crimes or wrongful
acts is weighed against its probative value by applying three
factors identified in State v. Jensen (1969), 153 Mont. 233,
239, 455 P.2d 631, 634, and reiterated in Just, supra. The
fourth element was added and applied in Just. These four
elements have come to be known as the "Just test" or "Just
formula" and must be applied before allowing evidence of a
defendant's prior sexual acts a.gainst the same victim.
The order of the District Court granting defendant's
motion in limine is bottomed: on application of only one
element of the Just test and the Youth Court Act. As noted
above the Youth Court Act is not applicable in this case.
While failure of questioned evidence to meet only one element
of the Just test is not sufficient to refuse its admission, a
decision to admit the evidence should not be made lightly.
The four factors must be considered together.
The victim in this case had. been molested by her
brother four years prior to the incident which is the object
of this action. The lower court found this length of time to
be too remote, citing State v. Hansen (1980), 187 Mont. 91,
608 P.2d 1083, where the Court found two acts, two and
one-half years apart, were too remote and therefore not
admissible. However, the Court also concluded the sequence
of evidence had no distinctive qualities that distinguished
the acts from other rapes, nor did the crimes tend to
establish a common scheme, plan or system. Hansen, 187
Mont. at 97, 607 P.2d at 1086-87. If none of the elements
are met, the probative value of the evidence is not
substantially outweighed by the prejudice to the defendant
and the evidence can not be admitted. Hansen, 187 Mont. at
1.00, 608 P.2d at 1088. Hansen does not hold that failure to
meet only one element of the Just formula deems the
prejudicial effect on the defendant sufficient to refuse
admission of prior acts.
The lower court in this case applied only the element
of remoteness to the facts. "The objection that evidence is
too remote is directed to the d.iscretion of tke court and is
a matter that goes to the credibility of the evidence rather
than to its admissibility.'' State v. Saterfield (1943), 114
Mont. 122, 127, 132 P.2d 372, 373-74; State v. Nelson (1961),
139 Mont. 180, 186, 362 P.2d 224, 228; State v. Fitzpatrick
(1980), 186 Mont. 187, 209, 606 P.2d 1343, 1355; State v.
Doll (Mont. 1985), 629 P.2d 473, 476, 42 St.Rep. 40, 44.
The determination of a trial judge that evidence is too
remote to be relevant will not be reversed in the absence of
clear proof of an abuse of that discretion. Nelson, 139
Mont. at 186, 362 P.2d at 228. In this instance the lower
court's determination tha-t the previous incident was too
remote to be admissible is error. Admission of evidence
cannot be denied solely on the fact it was not near in time
to the incident in question. Factors other than mere lapse
of time must be determined by the circumstances of the case.
Satterfield, 114 Mont. at 127, 132 P.2d at 373; Nelson, 139
Mont. at 186, 362 P.2d at 228; Fitzpatrick, 186 Mont. at
209, 606 P.2d at 1355; Doll, 629 P.2d at 476, 42 St.Rep. at
44.
The Wisconsin Supreme Court found when analyzing the
probative value of a prior incident that remoteness in point
of time "does not necessarily render evidence
irrelevant ... " Sa-nford v. State (Wis. 1977), 250 N.W.2d
348, 352. Place and circumstances also must be considered.
The Wisconsin ca.se involved the rape of a woman who was
accosted by the suspect after she had exited a public bus.
He asked her innocuous questions to get h.er attention, then
approached her from behind, put what he said was a gun in her
back, took her to a garage where he ordered her to remove her
jacket and lie down on it, and committed an act of rape on
her. In an incident occurring one and one-half years
earlier, a person identified as the same defendant had
followed this pattern of behavior almost exactly. The court
allowed the evidence of the earlier incident to be admitted
to show identity, because it was similar in character to the
case being tried. However, the court also said evidence
cannot be admitted,
when the lapsed time is so great as to
negative all rationale or logical
connection between the facts sought to be
proved and the remote evidence offered in
proof thereof.
Sanford, 250 N.W.2d at 352.
We do not find in the case at bar that the evidence is
so remote as to have no evidentiary value. While the actual-
length of time between the two incidents was four years, the
opportunity for an encounter between T. W. and his sister did
not reoccur during that four year period. If in fact the
second alleged incident did occur, it occurred at the first
opportunity, making the actual time period between the two
incidents less significant. The reasoning of the Wisconsin
Court is persuasive and we adopt it:
... [Alny issue as to remoteness of the
prior incident is almost completely
diffused by the fact that during the time
gap between the prior incident and the
rape, defendant wa.s in confinement in a
correctional institution.
Sanford,250 N.W.2d at 352.
Because of the developmental disability of the victim,
extraordinary care must be exercised in deciding whether or
not to admit evidence of T. W.'s previous sexual conduct with
her. The State cannot expect routine admissions of past acts
anymore than the defendant can rely on their automatic
exclusion for any reason other than the Just exceptions.
While the Court is mindful that the exceptions can swallow
the rule, particularly in a case such as this one, where the
mental capacity of the witness is impaired, those exceptions
must be adhered to scrupulously to assure fairness to both
parties. In this case both acts were sexual in nature. The
acts occurred in the victim's bedroom or one she shared with
her mother. The act in question occurred at the first
opportunity after the previous act. These facts tend to
establish a common scheme or plan. The evidence the State
wishes to introduce is for the purpose of showing defendant's
motive, opportunity and intent--allowable exceptions under
Rule 404 (b), M. R.Evid. Because the parties are the same and
because of the similarities between the two acts and the
circumstances surrounding the acts, the probative value of
the evidence is not substantially outweighed by the prejudice
to the defendant.
An issue of first impression raised by the Court an.d
ordered briefed by c~unsel is whether the pre-trial order
* '
h5
denying thehmotion in limine is appealable within the scope
w
of 5 46-20-103, MCA, pertinent parts of which are set forth
below:
(1) Except as otherwise specifically
authorized, the state may not appeal in a
criminal case.
(2) The state may appeal from any court
order or judgment the substantive effect
of which results in;
(e) suppressing evidence ...
Although the term suppression is not defined in the Montana
Code Annotated or in Montana case law, "suppress" means "to
effectively prevent from using." Rogers v. United States
(D.C. Cal. 1958), 158 F.Supp. 670, 680.
In the past this Court has accepted interlocutory
appeals by the State when the ruling by the District Court
had the substantive effect of suppressing evidence, and
involving constitutional rights of the defendants. Nor were
the cases limited to the precise situations set forth in
S 46-13-301, MCA, (motion to suppress confession or
admission), or § 46-13-302, MCA, (motion to suppress evidence
illegally seized). See State v. Johnson (Mont. 1983), 674
P.2d 1077, 40 St.Rep. 1990, cert. denied (1984), U.S.
, 104 S.Ct. 2693, 81 L.Ed.2d 365, (voice identification
of defendant was suppressed) ; State v. Jackson (1981), 195
Mont. 185, 637 P.2d 1, (evidence of defendant's refusal to
take a breath-test was suppressed); State v. Ulrich (1980),
187 Mont. 347, 609 P.2d 1218, (results of neutron activation
test were suppressed) .
In the case at bar, however, defendant's constitutional
rights are not at issue, and the question to be addressed is
whether a broader interpretation of the statute is
appropriate. The State argues without evidence of prior
instances of contact between T. W. and his sister, its
ability to prosecute the case will be severely impaired. The
trial will be solely a question of credibility between the
defendant and the victim. The Kansas and Illinois Supreme
Courts have strongly rejected a narrow interpretation of
similar statutory language which would limit interlocutory
appeals by the State to situations in which evidence had been
suppressed because it was obtained in violation of
constitutinal rights. See State v. Newman (Kan. 1984), 680
P.2d 257, and People v. Young (Ill. 1980), 41.2 N.E.2d 501.
The Illinois Court in Younq allows pretrial interlocutory
appeals in criminal cases whenever the prosecutor certifies
to the trial court that suppression substantially impairs the
State's ability to prosecute. 412 N.E.2d at 507. The high
court refused to formulate a standard by which lower courts
could determine the appealability of a certain order, relying
instead on the "good-faith evaluation of the prosecutor of
the impact of the suppression order on his case." Young, 412
N.E.2d at 507.
There is an important distinction between interlocutory
appeals on pre-trial rulings and those taken in the course of
the trial. Mid-trial appeals place t z defendant in double
le
jeopardy in violation of the Fifth Amendment to the United
States Constitution and Article 11, Section 5 of the Montana
State Constitution and are not appealable. State v. Carney
(Mont. 1986), P.2d , 43 St.Rep. 54. No jeopardy
attaches here, as the jury had not yet been sworn. Crist v.
Bretz (1978), 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24.
Because there is no double jeopardy problem in this case the
ruling is appealable.
We reverse the order of the District Court and remand
with instructions to try the case on its merits consistent
with this opinion.