No. 88-14
I N THE SIJPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
P l a i n t i f f and R e s p o n d e n t ,
-vs-
J A C K I E WAYNE BURK,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t C o u r t of t h e F o u r 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 C o u n t y of M i s s o u l a ,
T h e H o n o r a b l e J a m e s B . W h e e l i s , Judge p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
J. D i r k B e c c a r i , Missoula, Montana
F o r Respondent:
H o n . 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 , M o n t a n a
Barbara Claassen, Asst. Atty. General, Helena
R o b e r t L D e s c h a m p s , 111, C o u n t y A t t o r n e y , M i s s o u l a ,
Montana; B e t t y Wing, D e p u t y C o u n t y A t t o r n e y
S u b m i t t e d on B r i e f s : Sept. 1, 1 9 8 8
Decided: September 26, 1988
Filed: s p 2 6 1988
E
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Jackie Wayne Burk appeals his conviction of sexual
intercourse without consent, 5 45-5-503, Montana Code Anno-
tated. He was tried and convicted in May 1987 in the Fourth
Judicial District, Missoula County, Honorable James B.
Wheelis presiding. Burk was sentenced to twenty-five years
in the Montana State Prison for his conviction of sexual
intercourse without consent, to run consecutively with an
additional ten-year sentence imposed for use of a weapon in
the commission of the offense. The total Montana sentence
imposed was to run concurrently with a previous Idaho sen-
tence on an unrelated matter. We affirm.
The issue on appeal is whether the District Court erred
in allowing the Missoula County Attorney to present evidence
of defendant's absence from the first scheduled trial on this
matter along with an accompanying jury instruction on flight.
On December 21, 1985, defendant, age twenty-eight, went
on a date with T.R., the complaining witness, age eighteen.
Defendant picked her up at her house in Clinton and took her
to a Christmas party in Missoula. Both consumed alcohol and
defendant "smoked a joint": a marijuana cigarette. When the
party dwindled, they left in search of another Christmas
party to be held by friends of Burk. After this point, the
details are hotly disputed, and there is no agreement as to
what transpired over the next several hours.
After a car wreck in Pattee Canyon at approximately
1:00 a.m., Burk and T.R. were picked up by passersby in a
Bronco. Burk forgot his coat in the wrecked car. T.R.
wanted to go to the hospital because of the injuries to her
head and face she received when Burk's car went off the road
and slammed into a tree. But, at Burk's insistence, they
were dropped off at the Babbit residence in Milltown. Unable
to awaken the Babbits for assistance, they went to a neigh-
boring trailer to use the phone. The trailer had no phone.
Burk then lost track of T . R . for a short time but discovered
her outside on the road exiting the trailer park. Burk
testified that T . R . was going to walk across the field to the
IGA in Milltown to call her parents for a ride home and she
thought it best that he not be there. Defendant testified
that he did not see T . R . again that night and was unaware of
any incident which may have happened to her until the offi-
cers arrested him at about 4:30 a.m. while he was attempting
to retrieve his car from the Pattee Canyon ditch.
T.R. relates a vastly different story of what happened
to her in the early morning hours of December 22, 1985.
Finding the IGA pay phone jammed, T . R . crossed the street and
phoned her parents from a local business. It was 2: 24 a.m.
She asked her parents for a ride home and was waiting for
them at the IGA when Burk reappeared.
He was now wearing dark blue snow clothing. He con-
vinced T.R. that the Babbits, who had just given him the
coat, had phoned her parents and that she was now supposed to
go with Burk and wait inside at the Babbits' for her parents.
Believing Burk's story, T . R . started off across the field
again with Burk. As they walked across the walking bridge in
Milltown Burk commented to her how easy it would be to push
someone off the bridge to their death and make it look like
an accident. T . R . took this as a threat.
After they crossed the bridge, Burk wanted to go under
the bridge to "smoke a joint." T . R . refused. Burk then told
her she could go willingly or under force and with that he
wrestled her down the embankment. T.R. testified that she
landed on some bushes and rocks. She sat on the rocks while
Burk smoked his cigarette. He then tried to kiss her but she
refused. Burk tried to kiss her again and crawled on top of
her. T.R. scratched his face. Angered, Burk told her that
she could do this willingly or under force, and he then
pulled a knife out of his pocket. T.R. testified that the
knife blade was six inches in length. He rubbed the knife
along her hair, ear and neck. He then took off his snow
jacket and instructed her to lie on it. He pulled up her
shirt and bit her right breast. T.R. testified that out of
fear for her life, she was still and passive while Burk
pulled down her pants and penetrated her. Burk then stated
it would not be fun if T.R. was not going to move, so he
stood up, pulled up his pants and left.
T.R. then went toward a light that was on in the trail-
er park. From the trailer, she phoned her parents again and
told them she had been in two car wrecks, raped and threat-
ened with murder. Her mother called 911 and within minutes a
sheriff's officer picked up T.R. She gave a full description
of Burk and the location of his car. Burk was apprehended by
other officers at 4:30 a.m. at the location of his car as
given by T. R.
The officers transported T.R. to St. Patrick's Hospital
where a rape protocol kit examination was performed and the
evidence preserved. T.R. was taken from the hospital to the
sheriff's department for a statement and some further
questioning.
The evidence at trial from the rape protocol exam
revealed sperm, four to six hours old, on T.R. ' s underwear
which matched the sperm that was also found on defendant's
underwear. Expert serologist testimony revealed that 30
percent of the male population had Burk's blood and semen
type so that this match up was not identity perfect. Rather,
it was a probability test showing that defendant was defi-
nitely within the 30 percent group type of men as possible
assailants. Examination by Dr. Girard revealed a lesion on
T.R.'s right breast consistent with a bite mark.
Testimony from Estella Harris, whose phone T.R. used at
4:00 a.m., related that T.R. showed up on their door step
crying and hysterical. She requested to use the phone, her
clothes were dirty, she had dirt and twigs in her hair. She
stated that she had just been raped.
Officers investigating the crime scene under the bridge
found tennis shoe prints matching the same shoes that Burk
was wearing. Also clothing patterns in the dirt near the
rocks on the river bank were found. Additionally, when
apprehended by officers in Pattee Canyon, Burk was wearing
the dark ski jacket and had a knife in his pocket.
At trial the prosecution further introduced evidence of
the June 4, 1986, original trial date for which defendant
failed to appear. Defendant appeared the next day with an
implausible story of an automobile accident the day before
and the resultant disorientation which prevented his
appearance.
The prosecution sought to show guilt by conduct of
defendant's attempt to avoid prosecution. However, defendant
appeared at the courthouse the following day and was arrest-
ed. Defense counsel objected to the introduction of his
absence as evidence of flight. The trial judge allowed the
testimony and the jury was allowed to hear defendant's tale.
The jury was also given an instruction as to the use of
flight evidence, from which they could infer a consciousness
of guilt.
The jury convicted Burk of sexual intercourse without
consent. Burk appeals.
I. EVIDENCE OF FLIGHT
The tension surrounding evidence of flight usually
involves the issue of immediacy. Flight is an attempt to
avoid arrest - prosecution. Gann v. State (Ind. 1988) , 521
or
N.Ed.2d 330. Evidence of such is used to prove guilt by
conduct. State v. Charlo (Mont. 1987), 735 P-2d 2781 4 4
St.Rep. 597; see also McCormick - Evidence, 5 271 at 803 (3d
on
Ed. 1984). Through the use of an accompanying instruction,
the jury is allowed to infer a consciousness of guilt from
evidence of flight. Charlo, 735 P.2d at 282, 44 St.Rep. at
603.
In the instant case, immediacy is not an issue. Re-
cause it was several months after the arrest and charges that
defendant disappeared, the inference that defendant tried to
escape arrest is negated.
However, we are not convinced that the evidence negates
the possibility that defendant was trying to avoid prosecu-
tion, since he disappeared on the day of trial. Thus, the
immediacy element is not at issue.
It should be noted, however, that a defendant must do
more than merely fail to show up for the flight evidence to
be proper. United States v. Sanchez (2nd Cir. 1986), 790
F.2d 245; Commonwealth v. Babbs (Pa. Sup. Ct. 1985), 499 A.2d
1111. In the instant case, the defendant's nonappearance at
his trial was coupled with the incredible story which he
recounted to the authorities when he appeared the next day.
According to defendant's testimony, he was involved in
a single car accident on Blue Mountain Road outside of
Missoula while en route to the courthouse for his trial.
While he was driving along the Bitterroot River, a cigarette
which he was trying to put in the ashtray fell to the floor
and began burning. Defendant reached over to grab it,
swerved off the road and plunged his car into the river. He
testified that he became disoriented from hitting the trees
and rocks as he was swept down river while trying to escape.
Once on dry land he hiked to Lolo Pass. (The opposite
direction from Missoula, the place of trial.) It was midday
when he reached the highway at the pass. Seeing no cars at
all, he took off across country, headed for his residence in
south Florence. He hiked the rest of that day and all
through the night in the rain and hail. The next day he
appeared at the courthouse in Missoula, dry, calm and orient-
ed, to explain his absence to the judge. This is the story
which Burk also told the jury at his second trial in May
1987.
At trial, the prosecution introduced evidence by Offi-
cer Reed that although the river had been searched repeatedly
by the sheriff's department, even during low water periods,
no evidence of a car wreck was ever found and defendant's car
was not retrieved.
Officer Bell, an officer familiar with that area,
testified that it would take five days and nights to hike the
territory allegedly covered by the defendant on June 4, 1986.
Through the officer ' s testimony, defendant ' s story was dis-
counted on several points. In light of Officer Bell's testi-
mony, coupled with Officer Reed's testimony and no car ever
being found in the river, defendant's story seems inherently
unbelievable. It is reasonable that a jury could infer a
consciousness of guilt by Burk's absence coupled with this
story.
A District Court's ruling on the admissibility of
certain evidence will not be disturbed absent a showing of an
abuse of discretion. Cooper v. Roston (Mont. 1988), 756 P.2d
1125, 45 St.Rep. 978. The trial judge in this case heard the
defendant's testimony in a June 1986 hearing and held an - in
camera hearing in May 1987 at which the State made an
additional offer of proof before the judge ruled on its
admissibility. Under these facts, defendant has failed to
meet his burden of proof that the district judge abused his
discretion in allowing the flight evidence.
Prosecutors introducing questionable evidence to prove
guilt beyond a reasonable doubt are inviting issues of re-
versible error. In the instant case, it should be noted that
a jury conviction easily could have been sustained from the
substantial credible testimonial and scientific evidence
against defendant which was produced at trial, notwithstand-
ing the flight evidence. Thus, at most, the unnecessary
flight evidence would have been harmless error had it been
determined to be inappropriate. However, because there was
more than mere absence on the part of the defendant and no
issue of immediacy, the flight evidence was proper.
11. FLIGHT INSTRUCTION
The judge instructed the jury on the evidence as
follows:
If you are satisfied that the crime
charged in the information has been
committed by someone, then you may take
into consideration any testimony showing
or tending to show flight by the defen-
dant. This testimony may be considered
by the jury as a circumstance tending to
prove a consciousness of guilt, but it
is not sufficient of itself to prove
guilt. The weight to be given such
circumstances and significance, if any,
to be attached to it, are matters for
the jury to determine.
A jury instruction is proper when it is "relevant to evidence
or issues in a case and when it is supported by some evidence
or some logical inference from other evidence presented at
trial. " Charlo, 735 P.2d at 281, 44 St.Rep. at 602.
(Emphasis added.) It is clear from the foregoing discussion
of the evidence adduced at trial that this instruction was
definitely supported by the evidence. Further, the instruc-
tion was a correct statement of the law. Indeed the instruc-
tion was taken verbatim from this Court's opinion in Charlo.
Defense counsel next argues that it is legally inadmis-
sible under Rule 403, M.R.Evid., arguing that its probative
value is substantially outweighed by its prejudicial effect,
and, the instruction improperly called additional attention
to the issue of flight. We disagree.
There is probative value to flight evidence. "The fact
that the jury could reasonably interpret the defendant's
actions as flight in avoidance of prosecution would support
the instruction on flight." Gann v. State (Ind. 1988), 521
N.E.2d at 334. Burk had ample opportunity to tell the jury
his reasons for absence and to dissipate any prejudice the
jury might attach to the fact that Burk was not present on
June 4, 1986. Determining the credibility of Burk's story
was properly left to the jury. The instruction itself cau-
tions the jury that the significance, if any, of Burk's
absence is for them alone to determine. We find no error in
this instruction.
Although the flight evidence was unnecessary in this
case, the District Court did not abuse its discretion in
allowing it. The jury instruction properly accompanied the
flight evidence.
Judgment affirmed.
We concur:
A
{Justices n