State v. Henderson

NO. 95-248
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

STATE OF MONTANA,
Plaintiff and Respondent,
v. ;iili~ ~/i 'i;?~,,~~
BILL J. HENDERSON,
Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John W. Larson, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Marcia M. Jacobson, Public Defender Office,
Missoula, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General;
Barbara C. Harris, Assistant Attorney
General, Helena, Montana
Robert L. "Dusty" Deschamps, III,
Missoula County Attorney; Betty T. Wing,
Deputy County Attorney, Missoula, Montana

Submitted on Briefs: June 4, 1996
Decided: October 17, 1996
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.

The defendant, Bill J. Henderson, was charged by information,
filed in the District Court for the Fourth Judicial District in

Missoula County, with the offense of sexual intercourse without

consent, a felony, in violation of 5 45-5-503, MCA. Following a

trial by jury, Henderson was convicted of the crime with which he

was charged. He appeals the judgment of the District Court. We

affirm the District Court.

The issue on appeal is whether the District Court abused its
discretion when it admitted evidence of "other acts" pursuant to

Slarev.Jusl (1979), 184 Mont. 262, 602 P.2d 957.

FACTUAL BACKGROUND

In 1984, Henderson lived in Missoula with S.B. and her

children from a prior marriage, A.B., D.B., and B.B. In December

1984, the children moved to Anchorage, Alaska, to live with their

maternal grandparents. At that time, A.B. told her grandmother,

Do.B., that Henderson had sexually abused her. Do.B. immediately

took A.B. to a counselor, who notified the police. During the

police investigation, the children alleged that, on several

occasions, Henderson engaged in sexual intercourse with A.B., and

that he also made the children perform simulated sexual acts with

one another.
In 1988, Henderson was arrested and charged with two offenses:

sexual intercourse without consent, and accountability for incest.

Following a trial by jury, Henderson was convicted of both charges.

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He subsequently fled the jurisdiction, and was not apprehended and
sentenced until 1993.

Henderson then appealed to this Court, and in Statev. Henderson

(1994), 265 Mont. 454, 877 P.2d 1013, we reversed both of his

convictions. We concluded that the simulated sexual acts between

the children did not constitute incest. On that basis, we ordered

the District Court to enter a directed verdict of acquittal on the

accountability for incest charge. We also remanded the case for a

new trial of the sexual intercourse without consent charge.

In November 1994, Henderson was retried in the District Court

for the offense of sexual intercourse without consent. During the

pretrial proceedings, the State filed a "Notice of Intent to

Introduce Evidence of Other Acts," in which it asserted the

following:

[Tlhe State will seek to introduce . evidence
of other acts that are inseparably related to and conduct
simultaneous with the crime charged, for the purpose of
proving intent, identity, and common scheme.

The evidence of other acts expected to be presented by
the State . . . consists of:

1. During the same time period that [Henderson] ,was
having sexual intercourse with [A.B. 1, he was also having
her two young brothers lie on top of her and have
intercourse with her In prior proceedings
[Henderson] asserted mistaken identity as a defense, that
it was some other man that sexually assaulted the victim.
The boys' testimony that [Henderson] also had them
perform sexual acts on their sister is critical to
confirm her testimony that [Henderson] is the
perpetrator.

The District Court reviewed the requirements of the modified

Just rule, and determined that the proffered evidence of "other

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acts" satisfied those requirements. Based on that determination,
the District Court granted the State's motion, and admitted the

evidence of "other acts."

At the trial, A.B. testified that, on several occasions,

Henderson inserted his penis and fingers into her vagina. D.B. and

B.B. testified with regard to the "other acts." They both

testified that Henderson made them perform sexual acts or simulated

sexual acts with A.B., their sister.
Henderson testified on his own behalf, and denied all of the

children's allegations. On cross-examination, he stated his

opinion that another man had sexually molested A.B.

At the conclusion of the trial, the jury found Henderson

guilty as charged. The District Court entered judgment against

Henderson, sentenced him to forty years in prison, and declared him

ineligible for parole.

DISCUSSION

The issue on appeal is whether the District Court abused its

discretion when it admitted evidence of "other acts" pursuant to

Stntev.Just (19791, 184 Mont. 262, 602 P.2d 957.

When we review a district court's evidentiary ruling, the

standard of review is whether the district court abused its

discretion. Statev.Crist 119921, 253 Mont. 442, 445, 833 P.2d 1052,

1054. Furthermore, we recognize that a district court has "broad

discretion to determine whether or not evidence is relevant and

admissible, and absent a showing of an abuse of discretion, the

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trial court's determination will not be overturned." Srate v. Romero

(1993), 261 Mont. 221, 224, 861 P.2d 929, 931.

In Montana, the admissibility of evidence of other crimes,

wrongs, or acts is governed by Rule 404(b), 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.

To insure that evidence of "other acts" is not used as

character evidence in contravention of Rule 404(b), M.R.Evid., we

have delineated four substantive requirements that must be

satisfied before evidence of "other acts" can be admitted. Slale v.

Mari (1991), 249 Mont. 136, 814 P.2d 52. The four-part test

promulgated in Matt modifies the rule originally established in Jusl.

The modified Just rule requires that:

(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,

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 waste of time, or needless presentation of cumulative
evidence.

Matt, 249 Mont. at 142, 814 P.2d at 56.

Henderson asserts that the District Court erred when it

admitted the evidence of his "other acts" of sexual abuse.
Specifically, he contends that the evidence of "other acts" was

improperly admitted because: (1) the simulated sexual acts are

dissimilar to the offense with which he was charged; (2) the
evidence is not relevant to a permissible purpose pursuant to which

it could be admitted; and (3) the probative value of the evidence
is substantially outweighed by the danger of unfair prejudice and

confusion of the issues. He concedes, however, that the "other

acts" are not remote in time.

Our analysis of Henderson's appeal, therefore, will involve a

review of the first, third, and fourth requirements of the modified

.Just rule.

SIMILARITY OF OTHER CRIMES, WRONGS, OR ACTS

Henderson asserts that the "other acts" (simulated sexual

acts) are dissimilar to the act with which he was charged (sexual

intercourse without consent). To support his claim, he points out

that the simulated sexual acts did not involve "sexual intercourse"
as defined by 5 45-2-101(66), MCA, and that he did not actually

participate in the simulated sexual acts. Therefore, he contends,

the evidence of "other acts" does not satisfy the first requirement

of the modified Just rule.
 "We have consistently held that the [other] acts do not have
to be identical to the charged conduct, only sufficiently similar."

Slalev. Weldy (19951, 273 Mont. 68, 74, 902 P.2d 1, 5 (citing Stntev.

Tecca (1986)) 220 Mont. 168, 172, 714 P.2d 136, 138). In this case,

both the "other acts" and the charged offense involved the same

victim, and were part of the same series of occurrences. Henderson

was responsible for all of the acts, and they were performed solely

for his sexual gratification. All of the acts involved Henderson's

sexual manipulation and abuse of the children.
Furthermore, we have stated that “[tl here is no rigid rule for
determining when conduct is sufficiently similar, rather, the

determination of similarity depends on whether that conduct has

some relevance to prove an issue in dispute." Weldy , 273 Mont. at

75, 902 P.2d at 5 (citing Statev.Keys (1993), 258 Mont. 311, 316, 852

P.2d 621, 624). For reasons stated in the following section,

Henderson's other acts were relevant to prove an issue in dispute.

We conclude that the "other acts" are sufficiently similar to

the charged offense. Accordingly, we hold that the evidence of

"other acts" satisfied the first requirement of the modified Jzrsr

rule.

PROPER PURPOSES FOR THE ADMISSION OF
EVIDENCE OF "OTHER ACTS"

In its "Notice of Intent to Introduce Evidence of Other Acts,"

the State asserted that the evidence of "other acts" was admissible
to prove identity and common scheme. It is undisputed that,

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pursuant to Rule 404(b), M.R.Evid., these are permissible purposes.
see e.g. state V. Kordonowy (1991), 251 Mont. 44, 49, 823 P.2d 854, 857

(identity); Stutev.Brooks (1993), 260 Mont. 79, 83, 857 P.2d 734, 737

(common scheme).

Henderson is correct when he recognizes that "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."

Keys, 258 Mont. at 317, 852 P.2d at 625. However, we do not find

that to be the case here.

Henderson protested his innocence, and alleged that another

man committed the acts of sexual abuse. When he asserted this

defense, identity became a disputed issue in the case. The State,

therefore, was properly allowed to introduce the evidence of "other

acts" to prove that Henderson was, in fact, the perpetrator of the

charged offense. We conclude that the evidence of "other acts"

made it more likely that A.B. was not mistaken about Henderson's

identity when she accused him of the crime with which he was

charged.

We also find merit in the State's second asserted purpose--

common plan or scheme. The evidence of "other acts" helped

establish the existence of a common scheme in which Henderson

sexually abused and manipulated the children for his own sexual

gratification.
We conclude that the evidence of "other acts" was properly

admitted to prove Henderson's identity and common scheme.

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Accordingly, we hold that the evidence of "other acts" satisfied
the third requirement of the modified Just rule.

THE PREJUDICIAL EFFECT DOES NOT SUBSTANTIALLY
OUTWEIGH THE PROBATIVE VALUE

Henderson contends that the evidence of "other acts" should

have been excluded because its prejudicial effect outweighed its

probative value.

We have often recognized that probative evidence will

frequently and inevitably be prejudicial to a party. Stak v. McKnight

119911, 250 Mont. 457, 465, 820 P.2d 1279, 12 84 ; state v. Pnulson

(1991), 250 Mont. 32, 43, 817 P.2d 1137, 1144. In this case, the

evidence of "other acts" was prejudicial, "but because it satisfies

the other requirements of the modified Just rule, such prejudice

alone is not a sufficient reason to refuse admission." Rornero , 2 6 1

Mont. at 226, 861 P.2d at 932. SeealsoMcKnight, 250 Mont. at 465, 820

P.2d at 1284

For the reasons stated previously in this opinion, we conclude

that the evidence of Henderson's "other acts" had strong probative

value, and that the prejudicial effect of the evidence did not

substantially outweigh its probative value. Accordingly, we hold

that the evidence of "other acts" satisfied the fourth prong of the

modified Jusl rule.

We conclude that the evidence of "other acts" satisfied all

four requirements of the modified .Just rule. Accordingly, we hold

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that the District Court did not abuse its discretion when it
admitted evidence of Henderson's "other acts" of sexual abuse.
The judgment of the District Court is affirmed.

We concur:

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