No. 90-317
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA,
Plaintiff and Respondent,
PAUL DEMETRI KORDONOWY,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Richland,
The Honorable Kenneth Wilson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Peter 0 Maltese, Attorney at Law, Sidney, Montana
.
For Respondent:
Hon. Marc Racicot, Attorney General, Helena,
Montana; Joseph E. Thaggard, Assistant Attorney
General, Helena, Montana
Mike Weber, Richland County Attorney, Sidney,
Montana
Submitted on Briefs: October 31, 1991
Decided: December 23, 1991
Filed:
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Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Paul Demetri Kordonowy (Kordonowy) appeals his convictions of
aggravated burglary and sexual intercourse without consent
following a jury trial in the Seventh Judicial District, Richland
County. We affirm.
Kordonowy presents the following issues:
1. Did the District Court abuse its discretion by admitting
certain other crimes, wrongs, or acts evidence?
2. Did sufficient evidence support the jury's verdict?
In July 1987, K.B. lived in Sidney, Montana, and was employed
as a counselor for District I1 Alcohol and Drug Program. On
Friday, July 24, 1987, following a full day's work, she ran a few
errands and returned home at around 7:00 p.m. She spent a quiet
evening at home alone. Before retiring that evening, she locked
the front door of her house but left the back door unlocked. She
later retired to her bed to read, removed her hearing aids and her
glasses, apparently turned off the light in her bedroom, and fell
asleep. Without her hearing aids, K.B. could not hear unless the
source of sound was next to her ear; without her glasses, her
vision was poor.
In the early morning hours of July 25, 1987, K.B. awoke.
Although her bedroom was dark, light shining through her bedroom
window allowed her to view a man lying next to her on her bed. At
first, she thought the man was her boyfriend, L.L., and called out
his name. She quickly realized, however, that the man was not L.L.
She viewed the man for less than a minute before he forcibly
grabbed her by the shoulders, flipped her over to her stomach, and
placed a pillowcase over her head. He then pushed her face into
the pillows on her bed, which constricted her breathing and caused
her nose to bleed.
The man attempted sexual intercourse, but was unable to
penetrate K.B.'s vagina with his penis. He then flipped K.B. to
her back, placed the pillows on top of her head, pushed the pillows
into her face, and again attempted sexual intercourse. This time,
he penetrated K.B.'s vagina with his penis, but failed to complete
the act.
K.B. asked the man if she could go to the bathroom. The man
led her to the bathroom with the pillowcase still over her head.
While they were in the bathroom, K.B. suggested that they find some
lubricant in an attempt to get the man to leave his fingerprints on
some objects. The man, however, forced K.B. to grab something and
then led her back into her bedroom.
Following their return to her bedroom, the man pushed K.B.
onto the bed and attempted to have anal intercourse with her by
sticking his finger up her rectum. K.B. asked the man to stop and
the man complied. The man then put his head next to her ear, asked
her if she climaxed, and told her that he loved her. He then left
her bedroom.
K.B. waited a few minutes before getting up from the bed and
removing the pillowcase from her head. She walked through her home
and determined that the man had left. She then telephoned a friend
and told her she had been raped. She additionally telephoned the
police for assistance. The police escorted K.B. to a hospital for
a sexual assault examination.
K.B. was able to give authorities a description of the man
from viewing him prior to the time he placed the pillowcase over
her head and through her sense of touch. She told police that the
man was white; in his twenties or thirties; weighed between 145 to
160 pounds and was of average height; had dirty, dark hair; a
triangular-shaped face; and a muscular build, except for some flab
around his waist. She further told police that the man wore heavy
denim pants, work boots with a rounded toe, a tee shirt, and a wide
belt with a heavy buckle. Because of her hearing and sight
impairment, however, K.B. could not go beyond this description and
positively identify her attacker.
In January 1989, the Richland County Sheriff's Department
apprehended Kordonowy regarding a similar rape which occurred in
the nearby town of Fairview, Montana. The victim, V.N.O.,
identified Kordonowy as the man who raped her under the following
facts. On the evening of Friday, January 20, 1989, V.N.O. spent a
quiet evening at home alone. Prior to retiring to bed, she locked
the front door of her home, but apparently forgot to lock the side
door. At approximately 2 :00 a.m. on Saturday, January 21, 1989,
V.N.O. awoke and viewed Kordonowy sitting on her bed. Kordonowy
wore round-toed boots and a belt with a heavy buckle. V.N.0 asked
Kordonowy what he was doing in her bedroom. Kordonowy responded by
grabbing V.N.O. and pinning her arms above her head as she laid on
her back. Kordonowy twice raped V.N.O., once as she laid on her
back and once as she laid on her stomach. At V.N.O1s request,
Kordonowy allowed her to go to the bathroom. He later attempted
anal intercourse with V.N.O. but ceased this act when V.N.O. asked
him to stop. Before departing her house, Kordonowy placed a pillow
over her head. Kordonowy later pled guilty to, inter alia, sexual
intercourse without consent against V.N.O.
Because of the similarity of these rape cases, authorities
suspected that Kordonowy may have also raped K.B. Accordingly,
authorities submitted the blood, hair samples, and pubic combing
taken from K. B. as well as the sheets, pillowcases, underpants, and
vacuumings seized from her house to the State Crime Lab for
comparisons with samples of Kordonowy's head hair, pubic hair, and
blood, which he had provided the Richland County Sheriff's
Department regarding the V.N.O. matter.
Forensic scientist Arnold Melnikoff (Melnikoff) of the State
Crime Lab testified that with caucasian head and pubic hair, he
could microscopically distinguish an individual's respective head
and pubic hair from another individual's respective head and pubic
hair in ninety-nine out of 100 cases. He compared the known
standards of head and pubic hair obtained from K.B. and Kordonowy.
Melnikoff testified that he could distinguish the known standards
of K.Brs head and pubic hair from Kordonowyrshead and pubic hair.
He further compared the known standards of Kordonowyrshead hair to
a head hair of an unknown origin which was found in K. B. s bedroom.
He testified that he could not microscopically distinguish
Kordonowyrs head hair from the head hair of unknown origin.
Additionally, Melnikoff compared strands of Kordonowyls pubic hair
to pubic hair of unknown origin found in the combings of K.B. Is
pubic area following the rape and pubic hair of unknown origin
found in the vacuumings of K.B.'s bathroom. Melnikoff testified
that he could not microscopically distinguish Kordonowyrs pubic
hair from these pubic hairs of unknown origin.
Julie Long (Long), a serologist at the State Crime Lab,
examined Kordonowyls blood type, K.B.Is blood type, and K.B.Is
boyfriend, L.L. Is, blood type. She also examined semen found on
vaginal swabs taken from K.B. during the course of the sexual abuse
examination and semen found on two pairs of K.B. Is underwear seized
from her bed and her kitchen. Following her examinations, she
concluded that Kordonowy could not be excluded as the donor of an
enzyme known as the rrHrl
substance found in semen retrieved from one
of the vaginal swabs and on both pairs of underwear. In addition,
Long testified that she found the IrArr
enzyme present in the semen
found on the vaginal swabs and on both pairs of K.B.'s underwear,
and that neither K.B. nor Kordonowy could have secreted that
enzyme. She further testified, however, that the I1Aw enzyme could
have been provided by either bacteria or L.L., who engaged in
sexual intercourse with K.B. within seventy-two hours prior to the
rape.
Based on these conclusions of Melnikoff and Long, the State
charged Kordonowy by information with one count of aggravated
burglary and one count of sexual intercourse without consent
against K.B. A jury convicted Kordonowy of both charges on January
18, 1990. On February 16, 1990, the District Court sentenced
Kordonowy to thirty years imprisonment for the aggravated burglary
charge and twenty years imprisonment for the sexual intercourse
without consent charge, these sentences to run concurrently. The
District Court further sentenced Kordonowy to a concurrent term of
twenty years imprisonment for his status as a persistent felony
offender, and designated him as a dangerous offender for purposes
of parole eligibility. The District Court ordered all of these
sentences to run consecutively to the sentences imposed in State v.
Kordonowy, Richland County Cause No. 89-003 (Seventh Judicial Dist.
Ct. 1989). From these convictions, Kordonowy appeals.
1. Did the District Court abuse its discretion by admitting
certain other crimes, wrongs, or acts evidence?
Kordonowy argues that the District Court erred when it allowed
into evidence V.N.O.'s testimony, which chronicled the evening when
Kordonowy raped her. Kordonowy argues that this other crimes,
wrongs, or acts evidence violates Montana Rule of Evidence 404(b)
and related Montana case law.
Montana Rule of Evidence 404(b) provides:
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 action 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. [Emphasis added.]
Montana Rule of Evidence 403 additionally provides:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or mislead-
ing the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.
Montana Rules of Evidence 404(b) and 403 preclude the
admission of evidence of other crimes, wrongs, or acts if this
evidence is offered to prove a defendant's character and that he
acted in conformity therewith, or if the prejudicial nature of the
evidence substantially outweighs its probative value. The last
sentence of Montana Rule of Evidence 404 (b), however, allows other
crimes, wrongs, or acts evidence if it is admitted to prove the
identity of the defendant.
This identity exception is often used "[tlo prove other like
crimes by the accused so nearly identical in method as to earmark
them as the handiwork of the accused." McCormick, Evidence 449
(1972), noted in Wright & Graham, Federal Practice and Procedure:
Evidence 5 5246. Here, we hold that the facts of the two rape
incidents are so nearly identical in method that they can be
earmarked as the handiwork of Kordonowy; accordingly, the
testimony of V.N.O. fits into the exception of proving identity
under Montana Rule of Evidence 404(b). We further hold that
V.N.O. Is testimony did not violate Montana Rule of Evidence 403
because its probative value was not outweighed by its prejudicial
value.
2. id sufficient evidence support the jury's verdict?
The standard for reviewing issues concerning sufficiency of
the evidence is "whether, after viewing 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." Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct.
2781, 2789, 61 L.Ed.2d 560, 573; restated in State v. Kao (1990)
245 Mont. 263, 267, 800 P.2d 714, 716. We hold that after viewing
the evidence in the light most favorable to the prosecution, the
evidence allowed the trier of fact to find beyond a reasonable
doubt that Kordonowy committed each essential element of aggravated
burglary and sexual intercourse without consent.
Section 45-6-204 (2) (b), MCA, provides that l1 [a] person commits
the offense of aggravated burglary if he knowingly enters or
remains unlawfully in an occupied structure with the purpose to
commit an offense therein and: in effecting entry or in the course
of committing the offense or in immediate flight thereafter, he
purposely, knowingly, or negligently inflicts or attempts to
inflict bodily injury upon anyone." Here, the evidence when
viewed in the light most favorable to the prosecution allowed the
jury to conclude beyond a reasonable doubt that Kordonowy knowingly
entered K.B.'s home with the purpose of committing sexual inter-
course without consent and in the process, inflicted bodily harm
upon her.
Section 45-5-503 (I), MCA (1989), provides in pertinent part
that "[a] person who knowingly has sexual intercourse without
consent with a person of the opposite sex commits the offense of
sexual intercourse without consent.I1 Here, the evidence viewed in
the light most favorable to the prosecution allowed the jury to
conclude beyond a reasonable doubt that Kordonowy engaged in sexual
intercourse with K.B. without her consent.
In conclusion, we affirm Kordonowylsconvictions of aggravated
burglary and sexual intercourse without consent
We concur: