No. 90-047
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
SAMUEL E. MEDINA,
Defendant and Appellant.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable Mark P. Sullivan, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Deirdre Caughlan, Dunlap & Caughlan, Butte, Montana
For Respondent:
Marc Racicot, Attorney General, Elizabeth Baker,
Assistant Attorney General, Helena, Montana; Robert
M. McCarthy, County Attorney, Eileen Joyce-Smith,
Deputy County Attorney, Silver Bow County, Butte,
Montana
Submitted: May 30, 1990
Decided: September 25, 1990
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Defendant Samuel E. Medina appeals from the jury verdict
rendered in the District Court of the Second Judicial District,
Silver Bow County, which found him guilty of sexual assault. We
affirm.
The issues on appeal are:
1) Whether the District Court erred in admitting evidence of
defendant's 1984 conviction of sexual assault.
2) Whether the District Court erred in admitting evidence of
the victim's prior consistent statements.
3) Whether appellant's conviction is supported by sufficient
evidence.
In early June, 1989, Carol Wold, psychologist for the Butte
public school system, was visited by the defendant's 15-year-old
daughter, CM, together with two of her friends. The girls wanted
to discuss a hypothetical situation in which a girl is sexually
abused by her father. Wold told the girls that such abuse should
be reported. The girls returned to Wold's office shortly
thereafter, and CM revealed that she had been sexually abused by
her father. Terry Waldorf of the Department of Family Services was
contacted immediately and interviewed CM that day. CM was
interviewed several days later by Butte-Silver Bow Detective Thomas
Gallagher and related the same account of sexual abuse to him.
Defendant was charged with one count of sexual assault, a
felony, in violation of 5 45-5-502(1) and (3), MCA. Defendant
entered a plea of not guilty to the charge and was released on
bail.
Thereafter, the State filed a notice of intent to introduce
evidence of other crimes or acts. The information was also amended
to expand the dates of commission of the offense to the time period
between May 1987 and May 1989.
Defendant filed a brief opposing the introduction of other
crimes evidence. Prior to the commencement of trial on November
7, 1989, the court ruled in open court that introduction of other
crimes evidence would be permitted.
Trial was held on November 7 and 8, 1989. During trial, CM
testified that on May 10, 1989, while her mother was out playing
bingo and her sister was at night school, the defendant approached
her from behind, put his hand down her pants and inserted his
finger into her vagina; he then turned her around, lifted her shirt
and fondled her breasts. She also testified that this was not the
first time that her father had touched her sexually. CM stated
that on an earlier occasion in the family home, when CM had told
her father to "shut upItt turned and bit her on the breast.
he CM
related this story to her friend, April Baker, who testified as to
the existence of a red mark on CM's breast. Further, CM testified
that in May or June of 1987 her father forced her to perform oral
sex on him and to stimulate him with her hand until he ejaculated.
Similar incidents occurred every two or three weeks until the last
episode in May 1989, which prompted her to tell authorities.
CM also related an experience of similar abuse by her father
in 1984 when her family lived in Colorado. On that occasion,
defendant took CM from her bedroom in the family home, pulled down
her pants, and attempted unsuccessfully to have sexual intercourse
with her. CM reported the incident to the police, as a result of
which charges were filed and defendant entered a plea of guilty.
On cross-examination, defendant questioned CM about her
possible motives for making these allegations against her father
and whether she had related this sexual abuse to any members of her
family. In response, the State presented testimony from various
experts who had spoken with CM about the abuse. These experts
included Terry Waldorf, Social Worker for the Department of Family
Services.
Defendant and the rest of the family testified that, as a
result of defendant's previous conviction and the counseling
thereafter received by the family, strict rules and safeguards were
imposed in the home. Defendant was never allowed to be alone with
either CM or her older sister, Nicole. The family testified that
these safeguards were rigidly adhered to. Defendant also testified
that the only improper sexual contact between himself and CM had
been initiated by CM herself. The entire family testified that CM
was a disruptive child. CM's mother testified that, the night
before CM reported her father's alleged abuse, she and CM had
argued about a boyfriend; CM had angrily told her mother that she
would "get [them] all1' and said: "It worked before and it will
work again. I'
The jury found defendant guilty of felony sexual assault as
charged. Defendant was subsequently sentenced to a 20-year term
of imprisonment and designated a nondangerous offender. Defendant
filed a timely appeal.
The first issue on appeal is whether the District Court erred
in admitting evidence of defendant's 1984 conviction of sexual
assault.
The admission of other crimes evidence is governed by Rule
404(b), M.R.Evid., which states:
(b) 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.
Generally, evidence of other crimes, wrongs, or acts is
inadmissible to prove that a person "who commits a crime probably
has a defect of character [and that] a [person] with such a defect
of character is more likely than [people] generally to have
committed the act in question. 2 Weinstein's Evidence, 5 404 [08],
page 52 (1990). Other crimes evidence is admissible, however, for
other relevant purposes such as "motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident. Rule 404 (b), M.R.Evid. The admission of such evidence
is tempered by Rule 403, M.R.Evid., which requires that all
evidence, even if relevant, Inmaybe excluded if its probative value
is substantially outweighed by the danger of unfair prejudice
. . ." Rule 403, M.R.Evid.
The State must show that the other crimes evidence is relevant
in proving the current charge. United States v. Mehrmanesh, 689
F.2d 822, 830 (9th Cir. 1982). In this case, the State sought to
introduce other crimes evidence of defendant's 1984 sexual assault
conviction. To be convicted of sexual assault, defendant must
"knowingly" commit the assault. Section 45-5-502 (I), MCA. A
person acts "knowingly" when he is aware of his conduct or is aware
that his conduct created a substantial probability that a
circumstance defining an offense would result. Section 45-2-
101 (33) , MCA. Therefore, in this case the State must show that the
previous conviction is relevant to prove that defendant was aware
that his conduct caused the assault or created circumstances that
resulted in the assault.
The State alleged that the prior conviction was relevant to
prove that defendant acted "knowingly1' by exposing defendant's
motive, intent, knowledge, absence of mistake or accident, and
consciousness of guilt in participating in the current charge. We
hold that the admission of the 1984 conviction is appropriate for
the purpose of proving motive, intent, absence of mistake or
accident, and knowledge.
The 1984 conviction indicated that defendant wknowinglyl'
participated in the current charge by exposing his prior motive.
Knowledge is appropriate to prove that the defendant was aware of
his conduct. Also, if the defendant had committed the conduct once
before, it is evidence that he knew the consequences that such
action would again bring. Similarly, the previous occurrence of
an assault on the same victim indicates that defendant was aware
of the consequences of such conduct and that he could not claim
that his actions were mistaken.
The relevancy of the other crimes evidence is further
supported under the test enumerated in the landmark case of State
v. Just, 184 Mont. 262, 602 P.2d 957 (1979). Compliance with this
test also lends additional support to the probative aspects of such
evidence. State v. Eiler, 234 Mont. 38, 762 P.2d 210 (1988). The
four factors involved in the test are as follows:
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. (Emphasis in
original.)
Just
I 602 P.2d at 961.
In considering the first prong of this test, we have
previously held that "prior acts need not be identical to the
offense committed but be merely of sufficient similarity1 in
l1
order to comply with this first criteria. State v. Eiler, 762 P.2d
at 216, quoting State v. Tecca, 220 Mont. 68, 714 P.2d 136 (1986).
See State v. T.W., 220 Mont. 280, 715 P.2d 428 (1986), where
similarity was established between the first act of defendant in
which he got on top of the victim and pressed his erect penis
against her buttocks, and the second act of defendant in which he
fondled the victim's breasts and pushed his hands into her pants.
Defendant's 1984 conviction is sufficiently similar to the
current charge. The 1984 conviction involved inappropriate sexual
contact with his daughter, CM, who at that time was ten years old.
Because defendant's attempt at sexual intercourse was unsuccessful,
defendant was convicted of sexual assault. The current charge also
involved inappropriate sexual contact by defendant with the same
daughter, who was fifteen at the time. Although the activities
involved in each situation are not identical, it is inescapable
that defendant's conduct on both occasions was similar in that both
involved sexual contact between the defendant and the same victim
and occurred for purposes of defendant's sexual gratification. We
conclude that this meets the first test of similarity of acts.
With regard to nearness in time, each case must be examined
in light of its unique set of facts. See State v. Hansen, 187
Mont. 91, 608 P.2d 1083 (1980), where we allowed two and one-half
years; State v. Stroud, 210 Mont. 58, 683 P.2d 459 (1984), where
we allowed three and one-half years; and State v. T.W., 220 Mont.
280, 715 P.2d 428 (1986), where we allowed four years when the
facts indicated that defendant did not have a prior opportunity.
In this case, the three to five year period between the 1984
conviction and the charged crime is near enough in time to be
considered probative. Defendant did not have an opportunity to be
alone with his daughter, CM, prior to the three years. After
defendant's 1984 conviction, strict rules were imposed by the
family on the defendant's interaction with his daughters:
defendant was never to be alone with either of his daughters; the
daughters were to be together at all times when their mother was
gone; and CM1s mother, whenever she left the house, would return
and question the daughters as to whether everything was alright.
In time, these rules were no longer strictly enforced. Defendant
began to be left in the home with CM and her two younger brothers.
As a result, when the two boys were playing elsewhere in the house,
defendant would be alone in a room with CM. Defendant was given
an llopportunityvl
three to five years after the 1984 conviction that
did not exist immediately after the conviction. We conclude that
the nearness in time portion of the test has been met.
Our next requirement is to determine whether the defendant
was acting upon a common scheme, plan, or system at the time of the
current charge. A common scheme, plan, or system is indicated by
other crimes evidence when, compared with the current charge, the
crimes possess a unique similarity which supports a plan to carry
out a scheme. Just, 602 P.2d at 961.
The 1984 acts are so similar to the 1989 acts as to indicate
that defendant was acting in accordance with a common pattern of
behavior. Just, 602 P.2d at 961. This common pattern of behavior
is indicated by the following facts: all the acts testified to
occurred between the defendant and the same victim; all transpired
when defendant was allowed to be alone with the victim; all
involved essentially identical behavior by defendant; and all
occurred for defendant's sexual gratification. Just, 602 P.2d at
961. See Eiler, 762 P.2d at 216; T.W., 715 P.2d at 430. We
conclude that the facts establish a common scheme or plan.
The evidence of the 1984 actions meets the first three Just
factors and is, therefore, probative. However, in compliance with
Rule 403, M.R.Evid., and the fourth Just factor, this probative
value must still be balanced against the prejudicial effect this
evidence may have on defendant.
Any evidence of other crimes will have prejudicial
implications on the defendant. u s , 602 P.2d at 961. As a
result, this Court adopted certain procedural safeguards to
decrease these prejudicial implications. Just, 602 P.2d at 963-
64. Although these procedural safeguards do alleviate some of the
prejudice to defendant, they still do not replace the court's
ultimate task of weighing the probative value of the other crimes
evidence against its prejudicial effect.
Defendant used the 1984 conviction to support the argument
that CM concocted the current charge to be removed from the family
home. The defense argued that CM knew from this prior experience
that, if she accused defendant of sexual assault, she would be
removed from the family home; she, therefore, concocted the story
in order to get away from her parents with whom she was angry for
the restrictions they imposed upon her relationship with her
boyfriend.
Based upon the above discussion, the 1984 conviction was found
to be relevant and its probative value outweighed its prejudicial
effect. The District Court properly admitted the 1984 conviction
into evidence.
The second issue on appeal is whether the District Court erred
in allowing a prosecution witness to testify as to out-of-court
statements made to her by the victim.
During trial, prosecution witness Terry Waldorf testified
regarding an interview she had with the victim, CM. Defendant
challenges this testimony to the extent that Waldorf repeated
statements made to her by CM during this interview. This testimony
is admissable under the prior consistent statement exception to the
hearsay rule.
Hearsay is defined in Rule 801 (c), M.R. Evid. , as Itastatement,
other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter
asserted.I1 Certain out-of-court statements are not considered to
be hearsay. Rule 801(d), M.R.Evid. One such example is prior
statements made by a witness when: 1) the declarant testifies at
trial, and 2) is subject to cross-examination concerning her prior
statements; 3) the statements to which the witness testifies must
be consistent with the declaranttstestimony, and 4) the statement
must rebut an actual or implied charge of fabrication. Rule
801(d) (I), M.R.~vid. State v. Mackie, 191 Mont. 138, 144, 622 P.2d
;
673, 676 (1981). "An attack on general credibility satisfies the
recent fabrication element." State v. Tafoya, 729 P.2d 1371, 1376
(N.M.Ct.App. 1986).
Clearly, the first three factors have been complied with: the
declarant, CM, testified at trial; she was subject to cross-
examination concerning her statement; and the witness Waldorfts
testimony was consistent with CMfs testimony. The defense argues,
however, that these consistent statements are still not admissible
because they were not being used to rebut an allegation of
fabrication, or, if admissible for such purpose, should only have
been used during the State's rebuttal and not its case-in-chief.
This Court has previously addressed these arguments in a
similar case. In State v. Hibbs, 239 Mont. 308, 780 P.2d 182
(1989), this Court held that the use of prior consistent statements
made by the victim and testified to by certain prosecution
witnesses would be allowed when defendant had attacked the victim's
credibility during opening and cross-examination. These witnesses
were allowed to testify after the victim's credibility had been
attacked and after the victims themselves had testified. There was
no requirement that these witnesses only be allowed to testify
during the State's rebuttal.
In this case, defendant attacked C M 1 s credibility during his
opening statement and during CM's cross-examination. In his
opening statement defendant indicated that the sexual contact
alleged by CM "did not happen1'and that the defense would "present
reasonable doubtu as to the truth of C M t s allegations. Further,
when CM was cross-examined she was questioned repeatedly about
alleged inconsistencies in her statements. These attacks on CMfs
credibility justify the State's use of prior consistent statements
by Waldorf for rebuttal purposes. The State's use of these
statements could have occurred at any time after CM had testified.
The third issue on appeal is whether defendant's conviction
is supported by sufficient evidence.
The standard of review regarding the sufficiency of the
evidence was well established in the case of State v. Brown, 239
Mont. 453, 781 P.2d 281 (1989). This standard of review is:
Whether, after reviewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime
beyond a reasonable doubt.
Brown, 781 P.2d at 284, quoting State v. Tracy, 233 Mont. 529, 761
Defendant was charged with sexual assault on his daughter,
CM. In order to prove defendant's guilt, the State had to
establish that defendant knowingly subjected his daughter, CM, a
person less than 16 years old and not his spouse, to sexual contact
without her consent. Section 45-5-502 (I), (3) , MCA. Sexual
contact is defined in § 45-2-101(60), MCA, as "any touching of the
sexual or other intimate parts of the person of another for the
purpose of arousing or gratifying the sexual desire of either
party. 'I
The uncorroborated testimony of the victim is sufficient to
support a conviction of sexual assault provided that such testimony
is consistent with other evidence. State v. Howie, 228 Mont. 497,
503, 744 P.2d 156, 159 (1987). In this case, CM testified as to
sexual assault by the defendant. Her testimony was consistent with
the testimony of other witnesses. The jury weighed her testimony
and concluded that she was telling the truth. This testimony is
sufficient to support the jury's decision.
Defendant claims that even when the evidence is viewed in a
light most favorable to the State, such evidence is so fraught with
inconsistencies that it is not sufficiently credibleto support the
verdict. These inconsistencies stem from variations in testimony
between CM and other witnesses.
During review, this Court must not decide the weisht of the
evidence. "If the evidence conflicts, it is within the province
of the trier of fact to determine which shall prevail." State v.
Brown, 239 Mont. 453, 781 P.2d 281 (1989). In Brown, we addressed
a similar situation and stated:
The issue of sufficiency of the evidence boiled down to
the credibility of the State's witnesses vis-a-vis the
defendant's testimony. The jury by its verdict resolved
this conflict in favor of the State.
Brown, 781 P.2d at 284, quoting State v. Roberts, 633 P.2d 1214,
38 St.Rep. 1551 (Mont. 1981).
The jury in this case, sitting as the trier of fact, weighed
the conflicting evidence and chose to believe the State's
witnesses. We will not disturb this conclusion.
Affirm.