State v. Howell

No. 91-559

IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA,
Plaintiff and Respondent,
AUG2 4 1992
D
v.
JOSEPH ALLEN HOWELL, fL2 & !
%d
CLERK OF SVPREidE COURT.
STATE OF IM3lUTANA
.
Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Ravalli,
The Honorable Jack L. Green, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
James A. Haynes, Attorney at Law,
Hamilton, Montana
For Respondent:
2.
The Honorable Marc Racicot, Attorney General,
Cregg W. Coughlin, Assistant Attorney General,
Helena, Montana; George H. Corn, Ravalli
County Attorney, Hamilton, Montana

Submitted on Briefs: April 2, 1992

Filed:

Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
Defendant appeals from his conviction on May 6, 1991, of the
crimes of sexual intercourse without consent, sexual assault, and
indecent exposure committed upon T.S., a nine-year-old girl,
between December 25, 1990, and February 7, 1991. Following a jury
trial in the Fourth Judicial District Court of Ravalli County,
defendant was sentenced to a total of 60 years in the Montana State
Prison without benefit of parole. An amended judgment was entered
on November 20, 1991. The District Court denied defendant's motion
for a new trial. The Defendant appeals. We affirm.
The issues are:
1. Did the District Court erroneously instruct the jury that
it could consider evidence of defendant's other crimes as proof of
a 'lcontinuouspattern of conductv1
under Rule 404(b), M.R.Evid.?
2. Did the District Court err by excluding the victim's past
sexual history under the rape shield statute, 5 45-5-511, MCA?
3. Did the District Court err in instructing the jury that
the charges were distinct offenses to be determined separately,
rather than as lesser included offenses?
4. Does sufficient evidence support the jury verdict?
The State's amended information charged defendant with
committing the offenses of which he was convicted on or between
December 25, 1990, and February 7, 1991. The defendant filed a
partial alibi defense notice because he was in California visiting
his mother from the week before Christmas until the first week of
January 1991.
 On April 16, 1991, the State filed a notice of intent to
introduce evidence of other crimes, wrongs or acts in order to
support proof "on the issue of the Defendant's identity, intent,
state of mind, and that the Defendant's acts were consistent with
continuous conduct, a common scheme, plan, or ~ystern.~'The notice
stated its intent to introduce two prior convictions involving
female minors for sexual assault and sexual intercourse without
consent occurring in 1976 and 1978. The notice also specified the
intent to use defendant's admissions to prison officials during
psychological evaluations for parole in which he gave detailed
accounts of numerous sexual assaults of female minors similar to
the acts charged in this case.
In response, defendant filed a motion in limine to bar
introduction of prior acts evidence. Prior to trial, the District
Court held a hearing on the motion and then denied it. Prior to
each occasion on which evidence of prior acts was introduced, the
District Court gave the following cautionary instruction:
The State will now offer or has offered evidence
that the defendant at another time engaged in other
crimes, wrongs and acts. That evidence was not admitted
to prove the character of the defendant in order to show
he acted in conformity therewith.
The only purpose of admitting that evidence was to
show either proof of the defendant's motive in this case;
or proof of opportunity; or proof of the Defendant' s
intent; or proof that the crimes were committed
knowingly; or proof of the defendant's identity; or proof
of absence of a mistake or accident; or proof of a
continuous pattern of conduct. You may not use that
evidence for any other purpose.
The defendant is not being tried for these other
crimes, wrongs or acts. He may not be convicted for any
 other offense than that charged in this case. For the
jury to convict the defendant of any other offense than
that charged in this case may result in unjust double
punishment of the defendant. [Emphasis added.]
Jury Instruction No. 6. Defendant objected to that part of the
instruction which permitted consideration of prior acts for "proof
of a continuous pattern of conduct."
Prior to trial the court also considered the State's motion in
limine to exclude evidence of the victim's prior sexual conduct
pursuant to the rape shield statute, 5 45-5-511, MCA. Defendant
objected to the exclusion because he wanted to introduce evidence
of past sexual abuse by her natural father to show: veracity,
accuracy of recall, prior knowledge of sexual terms such as fldick,lt
and recognition of semen, tendency or opportunity to fabricate or
exaggerate, and to rebut the State's "lost innocence" argument.
The District Court granted the State's motion to exclude evidence
of the prior sexual abuse and did not rule on defendant's motion
for reconsideration. Defendant filed a notice of his intention to
challenge the constitutionality of 9 45-5-511, MCA.
The District Court also granted defendant's pretrial motion to
prohibit any treating physician, therapist, psychologist, teacher,
or social worker from testifying about the identification of the
defendant, and also the reliability or credibility of the victim.
However, the court reserved a ruling to allow such testimony in
case the victim's credibility was attacked.
Defendant stipulated to the fact that he was incarcerated in
either the State Hospital at Warm Springs or the Montana State
Prison from August 2, 1978, to June 8, 1989. Testimony at trial
established that after his discharge, he moved to an apartment in
Corvallis, a short distance from an elementary school. Defendant's
neighbor contacted the police in January 1991 after he observed
T.S. entering defendant's apartment on two occasions. He reported
that after she entered the apartment, the window blinds were drawn
and the music turned up. Deputy Sterling Maus responded to the
report by visiting with T.S. and her mother. Maus testified that
T.S. told him that defendant touched her pubic area. Deputy Pat
Richie, who continued the investigation, testified that T.S.
described one incident of oral intercourse, which occurred on
February 8, 1991.
Defendant moved to dismiss the sexual intercourse without
consent charge, based on Deputy Richie's testimony that the only
incident of oral intercourse reported occurred on February 8, 1991,
and therefore, was outside the charging dates of December 25, 1990
through February 7, 1991. The District Court denied the motion.
T.S. is an emotionally underdeveloped nine-year-old girl who
was assigned three school counselors to address her needs. T.S.
testified that beginning in the fall of 1990, at defendant's
request, she would go to his apartment almost daily where he would
remove her clothing, strap her to the bed, unzip his pants, and rub
his penis against her vagina. On occasion she said he would
masturbate on her, or force her to perform oral sex. She said that
defendant would close the blinds and put on music. She stated that
defendant gave her candy or money and left her notes. T.S. 's
parents found a note written before Christmas stating:
Say how would you like to make twenty dollars. Don't let
anybody see this, this is between you and I. Don't talk
to anyone about this note. Don't let anyone see it. OK
After comparing the note to a handwriting exemplar from defendant,
a handwriting expert identified the handwriting as that of the
defendant.
Brad Fowler testified that he hauled water from defendant's
apartment every evening around 5:00 to 5:30 during the last week in
January and that he never saw T.S. present, although once defendant
mentioned to Fowler that T.S. would be walking by at that time.
Defendant also admitted to Fowler that he had given T.S. candy and
money. Kathy Ostrander, supervisor for the Department of Family
Services for Ravalli County, stated that Fowler told her that one
time when he was over at defendant's getting water he was asked to
leave because the defendant expected T.S. to arrive soon. Fowler
testified that defendant asked him not to come over from 5:00 to
5:30 because he liked to relax after work.
At the close of evidence, defendant objected to the State's
proposed Instruction No. 14 stating that the offenses charged were
distinct offenses to be determined separately by the jury. The
District Court adopted No. 14 and rejected defendant's proposed
Instruction No. 1 which provided that the charges were not
separate, but alternative charges, so that if defendant was found
guilty, then the jury must determine which one of the three charges
was committed, and find him not guilty of the other charges.
 After considering all the facts, the jury found defendant
guilty of all three separate charges. The District Court denied
his motion for a new trial. Defendant appeals.

Did the District Court erroneously instruct the jury that it
could consider evidence of defendant's other crimes as proof of a
l'continuous pattern of conduct1*
under Rule 404(b), M.R.Evid.?
Defendant contends that the procedural protections under Just

were violated. These protections are:
(a) Evidence of other crimes may not be received
unless there has been written notice to the defendant
that such evidence is to be introduced. ...Addition-
ally, the notice to the defendant shall include a
statement as to the purposes for which such evidence is
to be admitted.
(b) At the time of the introduction of such
evidence, the trial court shall explain to the jury the
purpose of such evidence and shall admonish it to weigh
the evidence only for such purposes.
(c) In its final charge, the court should instruct
the jury in unequivocal terms that such evidence was
received only for the limited purposes earlier stated and
that the defendant is not being tried and may not be
convicted for any offense except that charged, warning
them that to convict for other offenses may result in
unjust double punishment.

Statev.Just (1979), 184 Mont. 262, 274, 602 P.2d 957, 963-64.

A. ImRroper Notice: The defendant maintains that the first
Just procedure was not properly followed because the State's notice

of intent to introduce evidence of other crimes failed to show any
logical relationship between the prior acts and any purpose under
Rule 404(b). This argument is based on our recent decision in State
v Croteau (1991), 248 Mont. 403, 812 P.2d 1251, which requires the
.
State to specifically state in the notice the relevant purpose for
admitting the prior acts. Under Croteau, ggshotgunvg
approaches merely

listing all the 404(b) purposes are prohibited. Croteau, 812 P.2d

at 1255.
The record does not reflect a specific objection to an overly
broad or ggshotgungg
type of notice. Under 5 46-20-104(2), MCA,
defendant's failure to make a specific objection to the adequacy of
the notice waived any deficiency in the notice.
B. Imprower Jury Instruction: Defendant also contends that
the procedural protections under Just were violated because the

phrase "continuing course of conductgvwas included in the jury
instructions. We emphasize that defendant only appeals the jury
instruction language, and not the admissibility of the prior acts.
Thus, we will not address whether "continuing course of conductw
constitutes a 404(b) exception. Rather, we will only determine
whether the District Court erred by including the phrase in the
jury instructions. First we will determine whether the language is
erroneous. If it is erroneous, then we will determine whether it
was prejudicial.
The phrase vgcontinuingcourse of conductIg has never been
specifically approved for use in a jury instruction. However, it
has been used interchangeably with several of the Just requirements.

Most cases use the phrase in consideration of remoteness under the
second prong of Just. State v Paukon (1991), 250 Mont
. . 32, 817 P.2d
P.2d 1137; Statev.Hanson (1980), 187 Mont. 91, 608 P.2d 1083; Statev.

Tecca (1986), 220 Mont. 168, 714 P.2d 136; Statev. Gambrel (1990), 246
Mont. 84, 803 P.2d 1071.
Other cases use the phrase when discussing the third prong's
vtcommon
scheme or plant*:
ItIn this case the other acts proved show a
continuous pattern of behavior on the part of the
defendant for a period of over 3 years. The pattern
during that period remained virtually the same. This is
precisely what is meant bv common scheme, plan or
svstem.I1 [Emphasis added.]
J s , 602 P.2d at 961 (quoting State v J n e (l969), 153 Mont. 233,
ut . esn

Further, the purpose of the evidence under attack on
this appeal was offered to show "plan, motive, scheme,
design, a common course of conduct ... .Iv [Emphasis
added. ]
J s , 602 P.2d at 962.
ut The phrase also appears in connection with

other purposes under the third prong such as opportunity, intent,
and identity.
While defendant was likely prejudiced to a certain
degree, we cannot say as a matter of law that such
prejudice clearly outweighed the probative value of this
evidence. The prior acts evidence established a
continuins course of conduct by defendant and aided in
determining o~~ortunitv, intent. and identitv. [Emphasis
added. ]
Tecca, 714 P.2d at 139.

In S a e .G l i (l988), 232 Mont. 56, 756 P.2d 445, we referred
t t v ipn

to the phrase as *tsurplusage.vt
Likewise, we hold that in this case
the phrase **continuouscourse of conductvt superfluous language
is
that was improperly included in the jury instruction. However,
jury instruction errors which do not affect substantial rights of
the defendant should be disregarded. State v wurfz (198l), 195 Mont.
.
226, 636 P.2d 246 (overruled on other grounds in State v Lance (1986),
.
222 Mont. 92, 721 P.2d 1258). Here, it is difficult to conclude
that if the evidence itself was properly admitted, defendant's
substantial rights were affected by this "surplusw language in the
cautionary instructions.
We hold that the phrase "continuing course of conduct" is
superfluous language, improperly included in the jury instruction.
However, because the instruction was not prejudicial, it
constitutes harmless error. However, this language should not be
used in future instructions.
II
Did the District Court err by excluding the victim's past
sexual history under the rape shield statute, 5 45-5-511, MCA?
The defendant challenges the constitutionality of the rape
shield statute on the basis that it violates his right to
confrontation under the Sixth and Fourteenth Amendments of the
United State Constitution, and under Article 11, 5 5 17 and 24, of
the Montana Constitution. If the statute is upheld, the standard
of review for its application is manifest abuse of discretion. State

v VanDyken (l99O), 242 Mont. 415, 435, 791 P.2d 1350, 1362-63.
.
The Sixth Amendment is not absolute, and "may bow to
accommodate other legitimate interests in the criminal trial
process. I* Chambers v MississSippi (1973), 410 U.S. 284, 295, 93 S. ~ t .
.
1038, 1046, 35 L. Ed. 2d 297, 309. The rape shield statute has
been upheld as a legitimate interest justifying curtailment of the
constitutional right to confront witnesses. State v van Pelt (1991),
.
247 Mont. 99, 805 P.2d 549.
[A] defendant's right to cross-examine the complaining
witness in a sexual offense case would be constricted
"where there is evidence of prior fake accusations.In

. .. Furthermore, evidence of prior charges
which have not been adjudicated to be true or
false; i.e., which may be true or false is also
inadmissible, primarily because its introduc-
tion circumvents the interest in preserving
the integrity of the trial and preventing it
from becoming a trial of the victim . . . .
These limitations do not infringe upon a
defendant's right to confrontation."
Van Pelt, 805 P . 2d at 552-53 (quoting State v Anderson (1984), 211 Mont.
.
272, 284-85, 686 P.2d 193, 200). Defendant contends that he was
denied the opportunity to establish the victim's lack of veracity,
accuracy, and her tendency to exaggerate. Defendant also claims he
was denied the opportunity to refute the State's "lost innocencenf
argument by showing that T.S.'s previous sexual abuse allowed her
to become familiar with terms such as "di~k.~'
The record shows that the District Court fully considered the
matter before determining there was no merit to defendant's
argument. None of the statutory exceptions to the rape shield
statute, 5 45-5-511, MCA, are met in this case. No statutory
exception exists allowingthe admission of the prior sexual history
of a child molestation victim. We decline to create one. Under
the statute we have affirmed the exclusion of evidence of a
victim's sexual abuse by her father. Statev.Kao (1990), 245 Mont.

263, 800 P.2d 714; Van Pelt, 805 P.2d 549. We find no evidence

supporting the contention that the District Court abused its
discretion. We hold that the District Court properly excluded the
past sexual history of the victim in this case.
I11
Did the District Court err when it instructed the jury that
the charges were distinct offenses to be determined separately,
rather than as lesser included offenses?
Defendant argues that the District Court erred by not adopting
his proposed Instruction No. 1:
These charges allege that the defendant committed an
unlawful act which constitutes either the crime of Sexual
Assault, and [sic] Sexual Intercourse Without Consent, or
the crime of Indecent Exposure. If you find that the
Defendant committed an act or acts constituting one of
the crimes so charged, you then must determine which of
the offenses so charged was thereby committed.
In order to find the defendant guilty you must all
agree as to the particular offense committed and, if you
find the defendant guilty of one of such offenses, you
must find him not guilty of the others.
Defendant asserts that this proposed instruction should have
been given because defendant's conduct occurred outside the
charging dates stated in the information, and the information
lacked specificity regarding the time and place of the offense
pursuant to 5 46-11-401(1), MCA. However, there was no objection
to the adequacy of the notice provided in the information.
Therefore, any inadequacy was waived. Section 46-13-101, MCA.
Furthermore, as discussed later in this opinion, there was
sufficient evidence of conduct within the time period alleged to
sustain conviction for separate offenses.
Defendant also contends that the District Court erred by
failing to instruct the jury on lesser included offenses. However,
no instruction on lesser included offenses was requested, and
therefore, such an instruction was waived. State v Sheppard (Mont.
.

1992), - P.2d __I 49 St. Rep. 382 (court not required to give
lesser included offense instruction sua sponte, if counsel fails to
request it).
IV
Does sufficient evidence support the jury verdict?
The standard of review for sufficiency of evidence is whether
any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt when viewed in the light
most favorable to the prosecution. Paukon, 817 P.2d at 1146; State

v. Moreno (1990), 241 Mont. 359, 787 P.2d 334.

Ample evidence supports the verdict. The evidence establishes
the elements of each individual charge. The indecent exposure
charge was established when T.S. testified that defendant Itunzipped
his pants and took his privates out," and that "white stuff
squirted at me." The sexual assault charge is established by
T.S. Is explanation that defendant put his private parts on her
private parts, and her statement that tr[h]evd
take me to his room
and strap me to the bed and start doing what moms and dads do."
She also testified that he touched her genital area in her parents1
home. T.S.'s testimony that defendant made her lick his private
part, put it in her mouth, and pressed down on her head, provides
a graphic description of oral intercourse which is the basis for
the sexual intercourse without consent charge.
Defendant contends, however, that uncorroborated testimony is
insufficient to support a conviction. Defendant points to the lack
of corroborating medical or school testimony. We have held that
expert testimony is not necessary to prove sexual assault of
children. Gilpin, 756 P.2d at 451. Moreover, we also held that the

testimony of a child victim does not need to be corroborated.

Nonetheless, the handwritten note, and the testimony of the
neighbor, the handwriting expert, and the police officers support
the verdict. After reviewing the record, we hold that the evidence
was sufficient to support a guilty verdict on each separate charge.
The judgment of the District Court is affirmed.

We concur:

Chief Justice
 August 24, 1992

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:

James A. Haynes
Attorney at Law
P.O. Box 544
Hamilton, MT 59840

Hon. Marc Racicot, Attorney General
Cregg W. Coughlin, Asst. Atty. General
Justice Bldg.
Helena, MT 59620

George H. Corn
Ravalli County Attorney
P.O. Box 5008
Hamilton, MT 59840

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA