NO. 92-232
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
v.
MILTON LEE KEYS,
Defendant and Appellant
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Edmund F. Sheehy, Jr., Cannon & Sheehy,
Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General, George
Schunk, Assistant Attorney General, Helena,
Montana; Patrick L. Paul, Cascade County
Attorney, Steven M. Hudspeth, Deputy
County Attorney, Great Falls, Montana
Submitted on Briefs: November 19, 1992
Decided: May 18, 1993
Filed: ..~.iy;,7&
.i,'.
Justice Terry N. Trieweiler delivered the opinion of the Court.
Defendant Milton Lee Keys appeals from the judgment and
verdict of the Eighth Judicial District Court, Cascade County,
convicting him of the crime of sexual intercourse without consent,
pursuant to 5 45-5-503, MCA. On February 4, 1992, the court
sentenced Keys to 15 years in the Montana State Prison, with three
years suspended.
We reverse.
The following issues are presented on appeal:
1. Did the District Court abuse its discretion when it
admitted evidence of a prior, uncharged incident of sexual
misconduct by Keys in the trial for sexual intercourse without
consent?
2. Did the District Court's refusal to allow reference to
prior misconduct evidence during opening statements deprive Keys of
his right to a fair and impartial trial because Keys had no
opportunity to minimize the impact of the evidence before the jury
heard testimony about Keys' misconduct?
3. Was the evidence presented by the State during the trial
inherently incredible and insufficient to support the guilty
verdict?
On August 3, 1990, Keys was charged by information with the
offense of sexual intercourse without consent, a felony, in
violation of § 45-5-503, MCA. At trial, there was no dispute that
Keys had knowingly engaged in sexual intercourse with the victim,
2
N.B. The sole issue in dispute was whether or not N.B. had
consented.
On the evening of July 31, 1990, N.B., who was 18 years old at
the time,, met Keys at TJ's Lounge in Great Falls. N.B. asked the
bartender, who was an acquaintance of hers, for a ride home. When
Keys overheard this, he offered to give her a ride and she
accepted.
The two of them left the bar in Keys' vehicle and headed
toward N.B.'s home. Keys stopped the car after turning off of
Tenth Avenue South, and began kissing N.B. N.B. stated that she
thought Keys would resume driving but he instead continued to make
sexual advances over her objections. Thereafter, Keys climbed
across the seat and, according to N.B.'s testimony, forced her to
have sexual intercourse. N.B. testified that she struggled
throughout the incident but the car was very confining and she was
unable to do anything to stop Keys. Finally, when the assault
ended, N.B. was able to get out of the car and immediately went to
a nearby house where she notified the police that she had been
raped.
While en route to meet with N.B., the police officer who was
dispatched to investigate the alleged crime saw a vehicle parked
near the crime scene which resembled the description she had been
given of the suspect's vehicle. The officer observed the driver,
later identified as Keys, searching for something on the ground and
in the car. When the officer asked Keys what he was doing, he
claimed he was looking for his wallet which he had lost when he
3
dropped off a male friend at this spot. Although the officer had
not yet made mention that she was investigating a possible rape,
Keys later admitted he lied when approached by the police officer
because he was afraid he might be charged with rape and did not
know the age of consent in Montana. After confirming that Keys fit
the description of the alleged assailant, the officer placed Keys
under arrest and took him to the house where N.B. identified him.
The next day Keys was taken to the hospital for the purpose of
gathering samples of his hair, saliva, and blood. While at the
hospital Keys told another police officer that he and N.B. had been
with another male and female when they left TJ's and had not been
alone in the car. In a later videotaped interview, Keys again told
the investigating officers that two females and a male were with
him at the time of the alleged incident. At trial, Keys
acknowledged that he had lied on both these occasions because, in
his words, "I was hoping I would let her [N.B.] think that I had
somebody to back up a story for me . . . and she would tell them
that nothing really happened. It didn't work out that way."
Keys did not deny having intercourse with N.B., but claimed
that she had willingly participated. The case was tried before a
jury which found Keys guilty of the crime of sexual intercourse
without consent, and the court imposed a 15-year sentence, with
three years suspended. Keys appeals.
The dispositive issue in this appeal is whether the District
Court properly admitted evidence about a prior incident of sexual
misconduct by Keys.
4
Prior to trial, the State served Keys with notice of the
State's intent to offer evidence of "other crimes, wrongs, or
acts," to prove Keys' motive and intent. Keys filed a brief in
opposition to the introduction of this evidence, but on January 27,
1992, the court ruled that this evidence would be admissible. The
evidence consisted of testimony by another woman, P.B., who had met
Keys a month earlier at the Flamingo Lounge in Great Falls. P.B.
testified that she talked with Keys and danced with him several
times. As she was leaving the Flamingo, Keys told P.B. that he
would like to speak with her outside. She testified that Keys
walked out of the bar ahead of her, and when they got outside, Keys
turned around with the zipper of his pants down and his penis
exposed. Be then twice told P.B., "I want to fuck your socks off."
P.B. reacted angrily, and when she threatened to call the police,
Keys apologized and left her alone. During the trial, when Keys
was on the stand and testified about this incident, he admitted
that it occurred the way P.B. had described. Be characterized his
actions as "being basically rude," and said that he was stupid for
having done this.
Keys argues that the court erred in allowing admission of this
evidence because it had no relevance to the issue of whether N.B.
consented, and did not meet the requirements of Rule 404(b),
M.R.Evid. The State counters by arguing that the evidence was
relevant because it was highly probative of Keys' motive and intent
to commit sexual acts against nonconsenting female victims.
5
The standard for review of evidentiary rulings is whether the
district court abused its discretion. &ZteV.Ctit (1992), 253 Mont.
442, 833 P.2d 1052; Statev. Sadowski (1991), 247 Mont. 63, 805 P.2d
537. The district court has broad discretion to determine whether
or not evidence is relevant and admissible, and absent a showing of
an abuse of this discretion, the court's determination will not be
overturned. &St, 833 P.2d at 1054.
In Montana, the admissibility of evidence of other crimes,
wrongs, or acts ("prior acts evidence") is controlled by Rule
404 (b) t M.R.Evid., which provides:
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.
We have stated that the general rule of Rule 404(b) must be
strictly enforced except where a departure is clearly justified,
and exceptions to the rule must be carefully limited. &i-t, 833
P.2d at 1054; %ZteV..hSt (1979), 184 Mont. 262, 271-72, 602 P.2d 957,
962. In order to insure that prior acts evidence is not used as
character evidence, this Court has outlined four substantive
criteria for the admission of such evidence. State v. Matt (1991) , 249
Mont. 136, 814 P.2d 52. This rule, which is a modification of the
rule originally developed in Just, 602 P.2d at 961, requires that:
1. There is a similarity between the crime charged and the
previous crime, act, or wrong:
6
2. The other crime, act, or wrong must not be remote in
time;
3. The evidence of other acts is not admissible to prove the
character of a person in order to show that he acted in conformity
with such character; but may be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident: and
4. A determination that the probative value of the evidence
is not substantially outweighed by the danger of prejudice to the
defendant.
In Matt, we also clarified that in addition to satisfying these
criteria for admissibility, a party offering such evidence must
comply with the procedural requirements originally set forth in
Just. In this instance, we first point out that the parties do not
dispute that the appropriate procedural precautions were taken.
The defendant received proper notice: the trial court admonished
the jury at the introduction of the evidence; and the trial court
instructed the jury in its final charge on the purpose of the
evidence.
The only question in this case is whether a single instance of
sexual misconduct, which the State characterized as indecent
exposure and assault, was admissible to prove that the sexual
intercourse with N.B. occurred without her consent. The State
contends that the evidence goes to prove Keys' motive and intent,
and that the requirements of the modified Just rule, as announced in
Matt, have been satisfied. Although we concede that the incident
with P.B., which occurred only a month before the alleged crime,
satisfies the requirement that the prior act not be remote in time,
we conclude that this is the only one of the modified Just criteria
which is met and that the offered evidence fails to meet the
requirements for admissibility in every other respect. The mere
fact that the incident with P.B. occurred near in time to the
alleged crime is not sufficient to overcome the factors which weigh
against admissibility.
The State argues that the indecent exposure incident is
sufficiently similar to the charge of sexual intercourse without
consent because both acts were illegal and sexual in nature, and
were directed toward nonconsenting female victims. Citing State v.
Gilpin (1988), 232 Mont. 56, 64, 756 P.2d 445, 449, for the
proposition that "[i]t is not necessary that the prior acts and the
charged offense be identical, " the State presents examples of prior
acts evidence which has been held admissible even though there have
been substantial differences between the charged crime and the
prior conduct.
Admittedly, in several cases we have held that prior acts
evidence meets the similarity standard even though the acts have
been quite dissimilar from the actual crime being charged. See, e.g.,
Sadowski, 805 P.2d 537 (apparent suicide attempt and pointing a gun
at a deputy held sufficiently similar to deliberate homicide); State
8
v.McKnight (1991), 250 Mont. 457, 820 P.2d 1279 (sexual assault held
similar to sexual intercourse without consent): State v. Gambrel
(1990) I 246 Mont. 84, 803 P.2d 1071 (prior uncharged sex crimes
admissible in deliberate homicide trial); state v. Wurtz (1981), 195
Mont. 226, 636 P.2d 246 (overruled on other grounds) (intimidation
threats made from auto similar to sexual assault against a
different victim in a parking lot).
While there is no rigid rule for determining when conduct is
sufficiently similar, the determination of similarity depends on
whether that conduct has some relevance to prove an issue in
dispute. We reiterate that in this case the only issue before the
jury was whether N.B. consented. We do not find that the indecent
exposure incident, followed by an apology from Keys and the fact
that he left P.B. alone, is similar or relevant to determining what
occurred between N.B. and Keys. The two incidents are so
completely different in surrounding circumstances, acts committed,
and victims, that we cannot reasonably conclude that one is
probative of the other.
In Crist, we held that evidence of the defendant showing a young
girl pornographic magazines and attempting to get her to dress in
a nightgown were not sufficiently similar to a charge of sexual
abuse. We concluded:
These acts are, however, evidence of character. These
innuendos would tend to distract the trier of fact from
the main question of what actually happened on the
occasions charged.
9
&St. 833 P.2d at 1055.
In this case, we also find that the innuendos that could be
drawn from this evidence would tend to go to Keys' character and
his propensity to act in a certain way and could, therefore,
distract the trier of fact from the issue in question. We do not
find enough similarity between the acts to conclude that the
indecent exposure episode is probative of the issue of N.B.'s
consent.
The State next contends that the evidence was offered to prove
Keys' motive and intent which are both permissible purposes under
our holding in hfatt and Rule 404(b), M.R.Evid., for prior acts
evidence. But merely reciting an allowable purpose is not
sufficient if the evidence does not further that purpose or that
purpose is not an issue in dispute. In this case, the State
ultimately argues that the indecent exposure incident is probative
of determining whether Keys was concerned with the consent of
victims of his sexually aggressive behavior. However, this is in
essence an argument that Keys committed the crime for which he was
being tried because he is a person of poor character. This is
precisely what prior acts evidence may not be used for.
[T]he prosecution may not introduce evidence of other
criminal acts of the accused unless the evidence is
introduced for some purpose other than to suggest that
because the defendant is a person of criminal character,
it is more probable that he committed the crime for which
he is on trial.
John W. Strong, McCormick on Evidence 798 (4th ed. 1992).
10
Furthermore, it is not Keys' intent or motive which is the
determinative factor in this case. Rather, it is the victim's
intent, and whether she consented to the act of intercourse, which
is dispositive of whether a crime was committed. Keys clearly
intended to have sexual intercourse with N.B., and even if he
intended to do this forcibly and without her consent, this criminal
intent would be irrelevant if N.B. consented.
We conclude that the purposes for which the State contends the
evidence is being presented are not relevant to the question being
tried in this case. The only relevant purpose for the evidence
goes to Keys' character, and this use of prior acts evidence is
explicitly prohibited by Rule 404(b), M.R.Evid.
Because the evidence is inadmissible under the first and third
criteria, it is not necessary to discuss the remaining requirement
under the modified Just rule. For the reasons stated, we hold that
the District Court abused its discretion when it allowed P.B. to
testify about the incident with Keys and remand this case for a new
trial.
Inasmuch as we are reversing on the first issue and not
allowing the admission of the prior acts evidence, the question of
whether Keys' was deprived of a fair and impartial trial because
the evidence could not be discussed during opening statements need
not be discussed.
Keys contends that judgment should be entered in his favor
because the State's evidence is insufficient to convict him. He
maintains that the evidence presented by the State during the trial
13
is so inherently incredible that it is unworthy of belief. We
disagree.
Keys I argument is premised on his assertion that, given the
size of the two parties involved and the size of the car,
consensual intercourse was possible, but N.B. could not have been
forced to do anything she was unwilling to do. Keys also points to
a number of instances during the trial where N.B. gave
nondefinitive statements or could not recall certain details.
The State's evidence consisted of N.B.'s testimony, supported
by physical evidence and the testimony of other witnesses who were
with her shortly after the alleged rape, which corroborated her
testimony. The jury heard and weighed N.B.'s testimony that the
sexual intercourse occurred without her consent, and then heard and
weighed Keys' conflicting testimony that it occurred willingly. It
is well settled in Montana that uncorroborated testimony of the
victim, standing alone, is sufficient for conviction of sexual
intercourse without consent. StUteV. hitcher (1991), 248 Mont. 183,
810 P.2d 751; Statev.French (1988), 233 Mont. 364, 760 P.2d 86.
The jury was also aware that Keys had lied to police officers
at various stages of the investigation because he feared a rape
accusation, and it was noted that one of these lies occurred before
there was any mention that the police were, in fact, investigating
a possible rape.
If there is conflicting evidence, it is within the province of
the trier of fact to decide who to believe. State v. Medina (1990) ,
12
245 Mont. 25, 34, 798 P.2d 1032, 1038 (quoting state v. &0wlt (1989),
239 Mont. 453, 781 P.2d 281). In this instance, after considering
not only the testimony of N.B. and Keys, but also the testimony of
other witnesses and physical evidence, the jury, by its verdict,
resolved the conflict in favor of the State.
The applicable standard of review for determining the
sufficiency of the evidence is
[Wlhether, 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. [Emphasis added.]
Medina , 798 P.2d at 1037. Although Keys tries to isolate and
emphasize some of the particulars that N.B. could not clearly
remember, the jury had before it ample evidence to justify
resolution of the credibility issue in favor of N.B. and to find
that there was lack of consent. We cannot conclude that Keys'
arguments about the size of the car or N.B.'s testimony meet the
burden of showing that no rational trier of fact could have reached
this decision. Nor do we find the evidence so inherently
incredible that it is unworthy of belief.
However, based upon our conclusion that the District Court
improperly admitted the evidence of Keys' prior, uncharged incident
of sexual misconduct, the judgment of the District Court is vacated
and this case is remanded for a new trial.
We concur:
Chief Justice
Justices
14
Justice Fred J. Weber dissents as follows:
The majority opinion sets forth limited information regarding
the claimed sexual intercourse without consent. I believe
additional facts should be considered in evaluating the evidence.
The testimony of the eighteen year old victim, N.B.,
established that she, her female roommate, and her roommate's male
companion had attended the fair at the Great Falls fairgrounds. The
three of them went to TJ's Bar at approximately 12:30 a.m. At the
bar the defendant introduced himself to N.B. N.B.'s roommate and
boyfriend inadvertently stranded N.B. at the bar assuming she had
a ride. While N.B. unsuccessfully attempted to obtain a ride home
from other friends, the defendant interrupted and indicated he
would give her a ride home. In the car defendant asked N.B. if she
would go on a date with him and when she refused, N.B. thought he
was offended by her rejection. Defendant stopped the car and
commenced kissing her and she reacted by pushing him away and asked
him to take her home. He then made various sexual advances,
including stating, "I know we are going to make love tonight" to
which N.B. responded, "NO, we are not." Without detailing the
extensive testimony, N.B. testified to the very forcible act of
sexual intercourse by defendant. At the trial photographic
exhibits were introduced showing the bruises on the inside of
N.B.'s knees which had been caused during the act. After the act,
N.B. ran from the car to a nearby home of a friend who happened to
be working in an open garage on his car. That friend testified
that N.B. appeared holding a sock in her hand, terrified, crying
15
and frantically hysterical: She immediately complained of the
rape. The testimony as to her hysterical condition was confirmed
by the police officers and others, including the emergency room
medical doctor. In addition, after the incident, N.B. moved out of
her apartment and back in with her parents because she testified
she was scared to death to live alone.
The majority concludes that the District Court abused its
discretion when it admitted evidence of the prior incident with
P.B. In considering such evidence, it is important to consider the
entire Modified Just Rule:
We therefore now adopt the following as the Modified
Just Rule which sets forth the basis for the admission of
evidence of other crimes, wrongs or acts as referred to
and described in Rules 404(b) and 403, M.R.Evid.:
(1) The other crimes, wrongs or acts must
be similar.
(2) The other crimes, wrongs or acts must
not be remote in time.
(3) The 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 with such character; but
may be admissible for other purposes, such as
proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or
absence of mistake or accident.
(4) Although relevant, evidence may be
excluded if its probative value is
substantially outweighed by the danger of
unfair prejudice, confusion of the issues,
misleading of the jury, considerations of
undue delay, waste of time, or needless
presentation of cumulative evidence.
State v. Matt (1991), 249 Mont. 136, 142, 814 P.Zd 52, 56. The
Modified Just Rule contains the essential elements of Rule 404(b),
which is separately cited in the majority opinion. In addition, as
pointed out in State v. Sadowski (1991), 247 Mont. 63, 805 P.2d
16
537, the Modified Just Rule.must be classed as an inclusory rather
than exclusory rule. The Sadowski Court stated:
As with its federal counterpart, the Montana rule
adopts an inclusionary rather than exclusionary approach,
that is, use of the word "may" indicates that the second
sentence actually lists theories of relevant examples
rather than exceptions . . .
Sadowski, 247 Mont. at 70, 805 P.2d at 541.
The majority opinion concludes that the only element of the
Modified Just Rule which has been satisfied is paragraph (2), which
requires that the other acts must not be remote in time. Here the
prior incident with P.B. occurred only a month prior to the crime.
I do agree with that conclusion but not with the remaining
evaluation of the Modified Just Rule.
The Modified Just Rule requires that the other crime, wrong or
act must be "similar." The majority notes a number of cases in
which this Court has concluded that the Rule allows the admission
of evidence where acts are quite dissimilar. In addition to the
cases cited by the majority, State v. Tecca (1986), 220 Mont. 168,
714 P.2d 136, allowed the admission of evidence on a charge of
felony sexual assault. The claimed sexual assault included the
defendant's touching the eleven year old complaining witness and
inserting his finger in her vagina. This Court concluded that the
other acts were admissible in evidence though not identical and
stated as follows:
While the prior acts were not identical to the
offense committed in this case, there is sufficient
similarity to sustain admission. Each of the incidents
involved young girls and occurred in the Tecca home. . .
. Both R.T. and L.C. testified that they had been
awakened in the middle of the night to find defendant
17
next to the bed dressed only in his underwear. These
incidents bear sufficient similarity to the charged
offense to uphold their admission.
Tecca
-I 220 Mont. at 172, 714 P.2d at 138. Note that there was no
offense at all in the conduct which consisted of an older man
sitting on the bed of two young girls dressed only in his
underwear. Yet this Court concluded there was sufficient
similarity to uphold admission. Clearly Tecca is authority for the
conclusion that paragraph (1) of the Modified Just Rule had been
satisfied.
In analyzing this issue, the majority stated as follows:
We reiterate that in this case the only issue before
the jury was whether N.B. consented.
I believe this is a misstatement of the issue. The issue before
the court was whether or not the defendant knowingly or purposely
committed the offense of sexual intercourse without consent. As
set forth in the Modified Just Rule, evidence may be admissible to
prove motive or intent.
We will now consider whether the acts were sufficiently
similar to meet paragraph (1) of the Modified Just Rule. Both
incidents took place after the defendant met the parties at a bar
in the early morning hours and after they left the bar with him.
I emphasize that the defendant admitted that his conduct took place
as P.B. testified in the present case. The act with P.B. indicated
the clear desire, and possible intent, on the part of the defendant
to have sexual intercourse with P.B. The conduct is clearly
similar to that with which he is charged in the principal case,
that being sexual intercourse without consent. There was no
18
consent on the part of P.B.- to the sexual exposure and statements
made. Such evidence could be construed as an intention on the part
of the defendant to have sexual intercourse without consent if
necessary. I conclude that the surrounding circumstances, and the
acts committed, and the victims themselves, all suggest sufficient
similarity to meet the requirements of paragraph (1) of the
Modified Just Rule. I would further point out that a failure of
the offered evidence to meet any one of the factors does not
preclude admissibility. See State v. Randall (1989), 237 Mont.
271, 772 P.2d 868, and other cases therein cited.
We agree with the majority that paragraph (2) of the Modified
Just Rule has been met.
Paragraph (3) of the Modified Just Rule states that the
evidence may be admissible for other purposes such as proof of
motive or intent. Defendant's conduct with P.B. clearly was not
consented to by her. It clearly could be considered by a finder of
fact to be evidence of a motive or intent to have sexual
intercourse, without consent if necessary. I conclude that the
evidence meets the test of paragraph (3) of the Modified Just Rule.
Paragraph (4) of the Modified Just Rule provides that the
evidence may be excluded if substantial prejudice outweighs the
danger of unfair prejudice or confusion of issues, or is
misleading. I conclude that while the evidence certainly may have
had some influence upon the jury, there is nothing in the nature of
unfair prejudice, confusion of issues or misleading of the jury.
19
I conclude that the evidence meets the test of paragraph (4) of the
Modified Just Rule.
In its concluding analysis, the majority opinion again
emphasizes that it is not the defendant's intent or motive which is
the determinative factor in this case. It concludes that it is the
victim's intent. I disagree with that analysis. The requirement
on the part of the trier of fact was to determine whether or not
the defendant knowingly or purposely committed sexual intercourse
without consent. I disagree with the majority's conclusion that
evidence of the prior act in this case is not relevant to the
question being tried.
I would affirm the conviction of the defendant.
Chief Justice J. A. Turnage and Justice John C n concur in
the foregoing dissent.
20