NO. 88-572
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
MAURICE FITZGERALD,
Defendant and Appellant.
APPEAL FROM: ~istrictCourt of the ~hirteenth~udicial~istrict,
In and for the County of Yellowstone,
The Honorable Russell ~illner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Allen Beck, ~illings,Montana
For Respondent:
Hon. Marc ~acicot, Attorney General, Helena, Montana
John Paulson, Asst. Atty. General, Helena
Harold Hanser, County Attorney; Brent Brooks, Deputy
County Atty., ~illings, Montana
Submitted on Briefs: June 30, 1989
. . ~ecided: July 24, 1989
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Defendant appeals his conviction in the District Court
for the Thirteenth Judicial District, Yellowstone County, of
four counts of sexual intercourse without consent. We
affirm.
The issues are:
1. Did the District Court violate the defendant's
right of confrontation by limiting his cross-examination of
the victim named in Count I of the information?
2. Did the District Court err in admitting evidence of
other crimes or wrongs as to Count I1 of the information?
Defendant was charged with four counts of sexual inter-
course without consent, each count alleging a separate inci-
dent and a different victim. After a five-day jury trial, he
was found guilty on all four counts and sentenced to a prison
term of 40 years on each count, the terms to be served con-
currently. He appeals on issues relating to two of the four
counts against him. He argues that the errors relating to
those two counts tainted the entire case.
Did the District Court violate the defendant's right of
confrontation by limiting his cross-examination of the victim
named in Count I of the information?
Count I of the information alleged an incident of
sexual intercourse without consent on October 4, 1987, from
12:00 to 1:30 a.m. The victim testified at trial as follows:
During the late evening hours of October 3, 1987, she was at
the Machine and Pool Palace in Billings, Montana, with her
roommate Collette. Defendant, to whom she had been intro-
duced before, asked her to go outside and. talk with him.
When they were outside, the defendant stated that he wanted
to move his car across the street, and asked the victim to
get in the car so that they could continue their conversa-
tion. She did so. Instead of driving across the street, the
defendant drove to a deserted industrial area and stopped.
He refused her requests to take her back to the Machine and
Pool Palace. He then fondled her and forced her to perform
oral sex. Afterwards, the defendant dropped the victim off
near her home and threatened to get revenge if she told
anyone.
The victim waited for her roommate Collette to get
home, told Collette what had happened, and decided to make a
police report. On the way to the police station, the two
stopped at Collette's boyfriend's house and at the house
where the defendant was staying. During both brief stops,
the victim remained in the car.
Defendant attempted to elicit from the victim on
cross-examination that Collette was a prostitute and that her
"boyfriend" was actually her pimp. The defense's theory was
that the victim was also a prostitute, that the acts between
the defendant and the victim were consensual, and that the
victim fabricated the rape story so that she would not have
to face her pimp with no earnings for the evening. The
District Court refused to allow this line of questioning.
The Sixth Amendment to the United States Constitution
provides that a criminal defendant shall enjoy the right "to
be confronted with the witnesses against him." The Montana
Constitution also guarantees the right of the criminally
accused to meet the witnesses against him face to face. Art.
11, Sec. 24, Mont. Const. Defendant argues that in the
absence of physical evidence or other evidence corroborating
the victim's testimony, his proposed line of questioning was
relevant to the victim's veracity and essential to his right
of confrontation.
Section 45-5-511(4), MCA, provides:
No evidence concerning the sexual conduct
of the victim is admissible in prosecu-
tions under this part except:
(a) evidence of the victim's past sexual
conduct with the offender;
(b) evidence of specific instances of
the victim's sexual activity to show the
origin of semen, pregnancy, or disease
which is at issue in the prosecution.
Neither of the two statutory exceptions applies in this case.
This Court has considered whether the restrictions
codified at 5 45-5-511 (4), MCA, deny a defendant his consti-
tutional right to confront witnesses. State v. Higley
(1980), 190 Mont. 412, 621 P.2d 1043. There the Court stated
that the "rules limiting inquiry into sexual conduct of the
victim are essential to preserve the integrity of the trial
and to prevent it from becoming a trial of the victim," and
found no denial of a defendant's rights in these limitations.
Higley, 621 P.2d at 1050-51.
Defendant maintains that the line of questioning he
wishes to pursue is permissible under State v. Anderson
(1984), 211 Mont. 272, 686 P.2d 193. In that case, this
Court stated that:
[dlespite the general policy against sordid probes
into a victim's past sexual conduct, we conclude
that the policy is not violated or circumvented if
the offered evidence can be narrowed to the issue
of the complaining witness' veracity.
Anderson, 686 P.2d at 200. (Citation omitted.) In Anderson,
the offered evidence was that the child victim had made a
prior false charge of sexual assault. The Court concluded
that the trial court correctly excluded this evidence as
unduly prejudicial compared to its value probative of the
victim's truthfulness, under Rule 403, M.R.Evid. Anderson,
686 P.2d at 201.
In the present case, although the defense argues that
the testimony about prostitution would go toward the victim's
veracity and motivation to fabricate a rape story, we con-
clude that the District Court did not err in ruling that the
prejudicial effect of that testimony on the credibility of
the victim would outweigh its probative value. As the State
points out in its brief, the defense did not offer any wit-
nesses, other than possibly the defendant, who could testify
that the victim and Collette were prostitutes. It did not
offer testimony that the victim had solicited defendant to
engage in sexual intercourse for money. Further, even if it
were proven that the victim was a prostitute, that would not
have proven consent. We hold that the District Court did not
violate the defendant's right of confrontation by refusing to
allow the desired cross-examination.
11.
Did the District Court err in admitting evidence of
other crimes or wrongs as to Count I1 of the information?
Count I1 of the information alleged that at about 11:OO
p.m. on November 4, 1987, the defendant knowingly had sexual
intercourse without consent with the second victim. The
victim testified at trial as follows:
She had lived with the defendant off and on from Janu-
ary 1986 until July 1987. In August 1987, a son was born to
them. She allowed the defendant to visit his son from time
to time. At about 11:OO p.m. on November 4, 1987, the defen-
dant came to the victim's house claiming he had brought some
diapers for the baby. The victim allowed defendant in. When
she learned that he did not have diapers or wish to see his
son, she asked him several times to leave. He pretended to
do so, but then came back and tried to force her to perform
oral sex. She s t r u g g l e d u n t i l s h e h e a r d t h e baby c r y i n g .
Then s h e gave up and t o l d him t o " g e t it o v e r s o I can go s e e
m son."
y Defendant f o r c e d v a g i n a l i n t e r c o u r s e .
Defendant threatened the victim t h a t if she reported
t h e i n c i d e n t , h e would come t o g e t h e r . She went i n t o t h e
bedroom t o t e n d t h e baby and s t a y e d t h e r e u n t i l t h e d e f e n d a n t
l e f t t h e house a t a b o u t 6:00 a.m. The v i c t i m r e p o r t e d t h e
i n c i d e n t t o t h e p o l i c e a b o u t a month a f t e r i t happened. She
stated that she delayed in telling anyone b e c a u s e of the
defendant's threats and because she feared no one would
believe her, given her former relationship with the
defendant.
On direct examination, the State elicited testimony
from t h i s v i c t i m a b o u t p r e v i o u s p h y s i c a l a s s a u l t s which t h e
d e f e n d a n t had committed against her. She t e s t i f i e d about
i n c i d e n t s i n May 1986, March 1987, and J u l y 1987. The d e f e n -
dant objected to the admission of this testimony on the
grounds that the assaults were not similar to the crime
charged h e r e . The S t a t e s u c c e s s f u l l y argued t h a t t h i s e v i -
dence was r e l e v a n t t o t h e i s s u e of c o n s e n t and showed t h a t
t h e v i c t i m had good r e a s o n t o be a f r a i d of t h e defendant.
In general, e v i d e n c e o f o t h e r c r i m e s , wrongs, o r a c t s
i s n o t admissible t o prove t h e c h a r a c t e r of a person. Rule
4 0 4 ( b ) , M.R.Evid. Such e v i d e n c e may b e a d m i s s i b l e f o r o t h e r
p u r p o s e s , however. -.
Id
In S t a t e v. Just ( 1 9 7 9 ) , 184 Mont. 262, 269, 602 P.2d
957, 961, t h i s Court s e t f o r t h a f o u r - f a c t o r t e s t t o deter-
mine whether e v i d e n c e o f o t h e r c r i m e s o r a c t s i s a d m i s s i b l e
i n a criminal prosecution. The f a c t o r s a r e :
1. S i m i l a r i t y of c r i m e s o r a c t s ;
2. n e a r n e s s i n t i m e ; and
3. tendency to establish a common
scheme, p l a n , o r system; and
4. t h e p r o b a t i v e value of t h e evidence
i s n o t s u b s t a n t i a l l y outweighed by t h e
prejudice t o t h e defendant.
Defendant a r g u e s t h a t t h e o t h e r c r i m e s i n t h i s c a s e , a
s e r i e s of domestic assaults, a r e not s i m i l a r t o t h e crime
charged. He a s s e r t s t h a t t h e e v i d e n c e of t h e a s s a u l t s s h o u l d
n o t have been a d m i t t e d .
However, a s t h e S t a t e a r g u e s , t h e o t h e r c r i m e s on which
t e s t i m o n y was p e r m i t t e d were s i m i l a r t o t h e o f f e n s e charged
i n several particulars. They were c r i m e s by t h e d e f e n d a n t
a g a i n s t t h e same v i c t i m . They a l l o c c u r r e d i n t h e v i c t i m ' s
home. They a l l f o l l o w e d arguments between t h e d e f e n d a n t and
t h e v i c t i m i n which t h e d e f e n d a n t was a n g r y a b o u t some p e r -
ceived s l i g h t . W e conclude t h a t t h e D i s t r i c t Court d i d not
abuse i t s d i s c r e t i o n i n a l l o w i n g t h e t e s t i m o n y a b o u t p r i o r
p h y s i c a l a s s a u l t s o f t h e v i c t i m i n Count 11.
The d e f e n d a n t h a s n o t a p p e a l e d any i s s u e s r e l a t i n g t o
the remaining two counts on which he was found guilty.
Because we have concluded that the defense has not shown
reversible error, we need not consider wh
t a i n t e d t h e t r i a l on t h o s e two c o u n t s .
Affirmed.