State v. Marshall

DA 06-0151

IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 198

STATE OF MONTANA,

Plaintiff and Respondent,

v.

JOSEPH R. MARSHALL,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and For the County of Cascade, Cause No. CDC-04-258
Honorable Kenneth R. Neill, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Hooks & Wright, Helena, Montana

For Respondent:

Honorable Mike McGrath, Attorney General; C. Mark Fowler,
Assistant Attorney General, Helena, Montana

Brant Light, County Attorney; John W. Parker, Joel Thompson
and Susan Weber, Deputy County Attorneys, Great Falls, Montana

Submitted on Briefs: June 26, 2007

Decided: August 14, 2007

Filed:

__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Defendant Joseph Marshall appeals his conviction for attempted sexual abuse of

children. He claims that the District Court impermissibly admitted evidence of prior bad

acts and that the evidence presented at trial was insufficient to prove the elements of the

crime. We affirm.

¶2 We restate the issues as follows:

¶3 I. Did the District Court err in admitting evidence of Marshall’s prior sexual acts

and sexual comments?

¶4 II. Did the State present sufficient evidence for the jury to conclude that Marshall

committed the offense of attempted sexual abuse of children?

BACKGROUND

¶5 In the Fall of 2003, Marshall moved into the trailer next door to J.M., the victim,

then eleven years old, and S.M., J.M.’s sister, who was nine years old. J.M. and S.M. had

a shaky home life, and soon began spending a good deal of time at Marshall’s house.

Eventually, they established a routine with Marshall. On Tuesdays they ate dinner at

Marshall’s, on Fridays they watched movies at his house, and on Sundays he took them

to McDonald’s for breakfast. Additionally, Marshall would often give the girls ten to

fifteen dollars for clothes, supplies and the like, and provided both the girls an

“allowance” if they were well behaved. Marshall also kept soft drinks and snacks at his

house for the girls.

¶6 Early in the summer of 2004, when the girls were visiting, Marshall called to the

girls, and when they looked at Marshall he had his penis hanging outside his pants.

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Sometime later in the summer, J.M. asked Marshall if he would give her $150. He

responded by asking what she was going to do for the money: “[a]re you going to strip

for me?” he asked. He also asked to see her crotch and, according to S.M., proposed to

lick her crotch. J.M. turned down the offer and left with her sister.

¶7 Marshall was arrested and charged with sexual assault (against one of J.M’s

friends), attempted sexual abuse of children and indecent exposure. After being arrested

and taken to the police station, Marshall voluntarily agreed to answer questions on

videotape. During the taped interview Marshall admitted that he told J.M. “[w]e gotta

quit hanging out together because I’m ready to pour honey over you and lick you like a

popsicle . . . .” Additionally, Marshall demonstrated, on tape, how he had “humped” a

counter top in front of the girls and made noises to simulate an orgasm. Further, Marshall

admitted that the girls’ maturing bodies, especially J.M.’s, had started to turn him on.

The timeline of when these particular acts occurred is somewhat murky. However, all

witnesses agreed that the acts took place approximately two months prior to Marshall’s

arrest.

¶8 Before trial, Marshall, in a motion in limine, sought to exclude evidence of the

honey comment and humping incident as prior bad acts because the State was using them

to show propensity; that is, the State’s purpose in introducing these prior acts was to

show that Marshall acted in conformity therewith when he committed the offense for

which he was charged. Additionally, Marshall argued that the prior acts were

inadmissible because the probative value of the prior acts was substantially outweighed

by the danger of unfair prejudice. The State responded that the prior acts were admissible

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under the “transaction rule,” as described in § 26-1-103, MCA. In particular, the prior

acts, according to the State, were evidence of “grooming;” that is, evidence that Marshall

was building trust and desensitizing the girls to sexual advances to set them up for a

future sexual crime. The Court eventually denied Marshall’s motion, concluding that the

prior acts formed a continuous course of conduct and therefore fit within the transaction

rule.

¶9 Trial began on October 24, 2005. Just prior to the State’s opening argument,

Marshall requested a continuing objection to the State’s use of the prior bad acts

evidence, specifically noting that the evidence violated M. R. Evid. 401, 403, and 404.

¶10 At the close of the State’s case-in-chief, the Defense moved for a directed verdict,

arguing, among other things, that the State had failed to prove that Marshall took a

material step towards the charged crime of sexual abuse of a child. The court denied the

motion, concluding that, while there may be factual issues regarding the charge, the State

had presented sufficient evidence to submit the matter to the jury. Marshall was

subsequently found not guilty of the sexual assault charge, and guilty of the attempted

sexual abuse of children and indecent exposure charges. He now appeals the attempted

sexual abuse of children conviction.

STANDARD OF REVIEW

¶11 We review an evidentiary ruling regarding the admission of evidence of other

crimes, wrongs, or acts for abuse of discretion. State v. Buck, 2006 MT 81, ¶ 71, 331

Mont. 517, ¶ 71, 134 P.3d 53, ¶ 71.

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¶12 We review sufficiency of evidence claims to determine whether, 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. State v.

McCarthy, 2004 MT 312, ¶ 46, 324 Mont. 1, ¶ 46, 101 P.3d 288, ¶ 46.

DISCUSSION

¶13 I. Did the District Court err in admitting evidence of Marshall’s prior sexual

acts and sexual comments?

¶14 Marshall argues that the court erred in admitting evidence of the humping incident

and the honey comment because the requirements of M. R. Evid. 404(b) were not met.

Marshall also claims that the prior acts were inadmissible under the “transaction rule,”

because the acts were too spread out to constitute the “same transaction” and were highly

prejudicial.

¶15 M. R. Evid. 404(b) prohibits the admission of evidence of other crimes, wrongs or

acts to show conformity therewith, but allows admission for other purposes, such as to

prove motive or intent. This Court’s precedent, via the Modified Just Rule, provides

additional substantive and procedural criteria for the admission of evidence of other

crimes, wrongs or acts. Buck, ¶¶ 72-74 (citing to State v. Just, 184 Mont. 262, 602 P.2d

957 (1979), and State v. Matt, 249 Mont. 136, 814 P.2d 52 (1991). It does not appear

that all of the modified Just criteria were met in this case. First, written notice was not

given to the defendant specifying the prior acts to be admitted, and the Court did not,

apparently, explain to the jury the purpose of such evidence. See Buck, ¶ 74. Also, the

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Just rule requires that the prior act “not be remote in time.” Buck, ¶ 73 (citations

omitted).

¶16 However, the Modified Just Rule has an exception: evidence of acts that are

inextricably linked to the offense charged are admissible, notwithstanding the criteria of

the Modified Just Rule. Buck, ¶ 75 (citations omitted). This exception is codified as the

“transaction rule,” which provides: “[w]here the declaration, act, or omission forms part

of a transaction which is itself the fact in dispute or evidence of that fact, such

declaration, act, or omission is evidence as part of the transaction.” Section 26-1-103,

MCA. Pursuant to the transaction rule, prior acts that are “inextricably linked to, and

explanatory of, the charged offense are admissible notwithstanding the rules relating to

‘other crimes’ evidence.” Buck, ¶ 76 (quotations omitted).

¶17 In Buck, we concluded that evidence of the defendant’s act of using

methamphetamine was admissible under the transaction rule because it was “explanatory

of the circumstances surrounding the charged offenses.” Buck, ¶ 79. Buck, who was

tried for and convicted of deliberate homicide and burglary, had ingested

methamphetamine within hours of the alleged offenses. Thus, the evidence of Buck’s

methamphetamine use was not only relevant, but inextricably linked with the charged

offenses and therefore not precluded by the Modified Just Rule. Buck, ¶ 79.

¶18 Here, as in Buck, Marshall’s prior acts of humping a table and making the honey

comment are explanatory of the circumstances surrounding the offense of attempted

sexual abuse of children. The State was required to show that Marshall, with the specific

purpose to commit sexual abuse of children, performed an act which constituted a

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material step towards that commission. Section 45-4-103(1), MCA; Jury Instruction No.

16. A person commits the offense of sexual abuse of children if the person knowingly

employs a child in an exhibition of sexual conduct, defined as the lewd exhibition of the

genitals or other intimate parts of a person. Sections 45-5-625(1)(a), 45-5-620(1)(f),

MCA. Consequently, the State had to show that Marshall was not just being crass or

making a random lewd comment when he suggested that J.M. take off her clothes if she

wanted $150, but was seriously propositioning J.M. to take her clothes off and show him

her crotch, or other intimate parts, for lewd purposes.

¶19 The State, in order to prove that Marshall seriously intended to pay J.M. money

for a lewd exhibition, sought to show that Marshall had been “grooming” J.M. in order to

desensitize her to sexual advances. “Grooming” is “the process of cultivating trust with a

victim and gradually introducing sexual behaviors until reaching the point” where it is

possible to perpetrate a sex crime against the victim. United States v. Johnson, 132 F.3d

1279, 1283 fn. 2 (9th Cir. 1997). The humping incident and the honey comment, as

evidence of grooming, allowed the jury to infer intent from Marshall’s proposition to

J.M. Thus, Marshall’s prior acts were inextricably linked with the charged offense of

sexual abuse of children.

¶20 Admittedly, Marshall’s actions, unlike the methamphetamine use in Buck, were

not undertaken on the day of the incident, but were performed a month or two before.

Relying on the definition of “same transaction” at § 46-1-202(23), MCA, Marshall asserts

that, because the acts were not close enough in time, they cannot be part of the same

transaction. However, while the timing of the prior acts is relevant concerning the

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transaction rule, it is not determinative. The transaction rule is an exception to the

required criteria under the Modified Just Rule, including the rule’s insistence that the act

“not be remote in time.” Further, the prior act satisfies the transaction rule if it is “itself

the fact in dispute” or if it is “evidence of that fact.” Here, the prior acts of grooming,

which by definition must occur over a period of time, are evidence of the fact in dispute:

that Marshall intended to pay J.M. so that she would expose herself to him for lewd

purposes.

¶21 Finally, we recognize that evidence of past deviant sexual acts is, by its very

nature, prejudicial. However, we also recognize that courts have broad discretion in

determining whether “other crimes” evidence is admissible. Buck, ¶ 80 (citations

omitted). Given the facts of this case, in particular the “grooming” link between the prior

acts and the charged offense, we conclude that the District Court did not abuse its

discretion by admitting evidence of Marshall’s prior acts.

¶22 II. Did the State present sufficient evidence for the jury to conclude that

Marshall committed the offense of attempted sexual abuse of children?

¶23 Marshall claims that the State failed to prove two requirements of the charge of

attempted sexual abuse of children. As explained above, the State had to prove that

Marshall took a “material step” towards the commission of sexual abuse of children,

which, under these facts, is employing a child in an exhibition of “sexual conduct,”

defined as the lewd exhibition of the genitals or other intimate parts of a person. See

§§ 45-4-103(1), 45-5-625(1)(a) and 45-5-620(1)(f), MCA. Marshall asserts that the State

did not present sufficient evidence that Marshall took a “material step” towards

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commission of the offense. Second, Marshall asserts that the State failed to prove that he

intended to employ J.M. in “sexual conduct.”

¶24 A. Sufficient evidence of a “material step”?

¶25 Marshall argues that while his inquiry as to whether J.M. was going to strip in

return for money was certainly inappropriate, it did not indicate an attempt to engage

J.M. in sexual conduct, as Marshall did not show J.M. any money, and it was made

outside in the presence of other people.

¶26 However, as elaborated above, Marshall’s comment, taken in the full context of

his other “grooming” behaviors, may be viewed as a material step towards paying J.M. to

expose herself to him for lewd purposes. The jury may infer intent from the defendant’s

acts, including evidence of the defendant’s prior acts. See State v. Riley, 270 Mont. 436,

441, 893 P.2d 310, 314 (1995) (quotations omitted). Accordingly, we conclude that a

rational trier of fact could have found, beyond a reasonable doubt, that Marshall took a

material step towards the commission of sexual abuse of children.

¶27 B. Sufficient evidence of a “sexual conduct”?

¶28 Marshall also argues that the State failed to prove that Marshall’s specific purpose

was to employ J.M. in sexual conduct; that is, a lewd exhibition of the genitals or other

intimate parts of a person. “Lewd” was defined in the jury instructions as the “gross

flouting of community standard in respect to sexuality or nudity in public.”

¶29 Here, if J.M. had immediately taken Marshall up on his offer, she would have

flouted her nudity in public at his request. However, it is also possible, and somewhat

more probable, that the jury inferred that Marshall’s intention was to have J.M. pose for

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him in private, in such a manner that he could perform his previously expressed fantasies.

Such action with an eleven-year-old minor certainly flouts community standards, and the

jury therefore could have found, beyond a reasonable doubt, that Marshall sought to

employ J.M. in sexual conduct, namely a lewd exhibition of her intimate parts.

CONCLUSION

¶30 The District Court did not abuse its discretion in admitting evidence of Marshall’s

prior acts. Additionally, the State presented sufficient evidence for a rational trier of fact

to determine, beyond a reasonable doubt, that Marshall committed the offense of

attempted sexual abuse of children.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ KARLA M. GRAY
/S/ JOHN WARNER
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS

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