State v. Brooks

NO. 93-033
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993

STATE OF MONTANA,
Plaintiff and Respondent,
v.
DOUGLAS ROBERT BROOKS,
Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Lawrence LaFountain, Attorney at Law,
Havre, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General;
Elizabeth L. Griffing, Assistant Attorney
General; Helena, Montana; David G. Rice,
Hill County Attorney, Havre, Montana

Submitted on Briefs: July 8, 1993

Filed:
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Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Douglas Robert Brooks was convicted of sexual

assault following a jury trial and appeals from the judgment of the

District Court of the Twelfth Judicial District, Hill County,

claiming error in the court's failure to suppress evidence of prior

crimes.

We affirm.
The sole issue on appeal is whether the District Court erred

in denying Brooks' motion to suppress evidence of prior crimes. We

analyze this issue under the modified Just rule, as set forth in

State v. Matt (1991), 249 Mont. 136, 814 P.2d 52.
On March 23, 1992, Brooks was charged by information with a

sexual assault on an 11-year-old victim, W.J., allegedly occurring

on February 7, 1992, in Havre, Montana. On June 25, 1992, as

required by u, the State filed a notice informing Brooks that

evidence of a prior sexual assault committed by Brooks would be

introduced at trial. Brooks filed a motion to suppress this

evidence. The District Court denied the motion. On August 25,

1992, a jury found Brooks guilty of sexual assault. Brooks appeals

from the judgment on the issue of admission of the prior sexual

assault.

The prior crime introduced in Brooks' trial involved an

incident that occurred before his move to Havre. In May 1989,

Brooks took 13-year-old G.M. to Lake Chelan in Washington state

where they engaged in recreational activities, including swimming,
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during the day. Later that evening, Brooks sexually assaulted G.M.
In January 1990, Brooks was convicted in Washington of felonious
sexual contact with a minor.
After moving to Havre, Brooks became employed as a maintenance
man at a motel where he became friendly with the manager's
lo-year-old son, J.T. In addition to helping J.T. with his math,
Brooks also accompanied him to the Havre city pool which was
largely attended by 10 and 11-year-old boys. Brooks would
frequently play with the boys in the pool by flipping them into the
water. In fact, complaints were made to the pool management that
Brooks was paying too much attention to the young boys. An
off-duty police officer investigated these complaints and found
that Brooks had a tendency to pay more attention to the young boys
than to the girls at the pool.
One day Brooks took both J.T. and his friend, W.J., swimming
at the pool. Brooks flipped the boys in the water, played several
pool games and allowed them to ride on his back for about 30
minutes or an hour. According to W.J., Brooks approached him from
behind and squeezed his buttocks, at which time W-J. swam away in
order to inform J.T. Later on, according to W.J., Brooks
approached him again, and this time squeezed W.J.'s penis. J.T.
testified that Brooks later approached him also and squeezed his
buttocks.
The next week, at J.T.'s birthday party, W.J. became upset
when informed that Brooks might stop by. According to W.J.,
Brooks had asked him whether or not he intended to inform the

police about the swimming pool incident, and W.J. answered that he

would not. Brooks contends that W.J. approached him with sexual

advances and that he merely tried to counsel W.J.
Did the District Court err in denying Brooks' motion to

suppress evidence of prior crimes?

As indicated, we will analyze this issue in light of the

four-part modified Just rule that provides:
(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.

Matt
-.--.--I 814 P.2d at 56.

Brooks' actions show a systematic plan to entertain boys or

adolescents in a recreational setting in which they feel

comfortable and then, immediately or soon after, to catch them

off-guard and unexpectedly sexually assault them. Although the

time Brooks spent befriending G.M., J.T., and W.J. before sexually

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assaulting them varied with each victim, the plan was nonetheless
systematic in that swimming or water games were used as a prelude
to the assaults, and the boys were each in a vulnerable position
because they wore fewer clothes while they were swimming, or in
G.M.'s case, receiving a back rub, than they would have in a more
formal setting.
Applying the first element of the modified Just rule to the
case at bar, we conclude that the sexual assault committed by
Brooks in Washington against G.M. is similar to the sexual assault
committed against W.J. in Havre. As we stated in State v. Gilpin
(1988), 232 Mont. 56, 64, 756 P.2d 445, 449, the prior act does not
need to be identical to the charged offense. In the case at bar,
the two acts are extremely similar.
Brooks took G.M. swimming at a lake in order to become closer
to him. The sexual assault on G.M. occurred after the swim in the
evening while Brooks gave G.M. a back rub which eventually turned
into an excuse to rub G.M.'s buttocks and penis. In the incident
involving J.T. and W.J., Brooks took both boys swimming at a pool
in order to strengthen his friendship with J.T. and become better
acquainted with W.J. During the water games, Brooks unexpectedly
assaulted both J.T. and W.J.
The similarities are obvious. In both incidents, Brooks
entertained the boys in a recreational setting around water and
swimming as a prelude to his sexual assaults. Brooks claims that
the acts are not similar because of the difference in location. We
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disagree. Although the assault of G.M. occurred after a swim, as
opposed to the assault on W.J. which occurred while still in the
water, both of the assaults occurred in or near swimming areas and
after Brooks had engaged in recreational activities with the boys
in order to appear to be their friend, and when the boys were more
vulnerably dressed, either in swim clothing or bedtime clothing.
Even though Brooks had just met W.J. and had only entertained him
in the pool for a short time before assaulting him, W.J. assumed
that Brooks could be trusted since Brooks had already gained the
trust of W.J. 's close friend, J.T., by taking J.T. on recreational
outings. Therefore, Brooks, through the trust he had already
gained with J.T., was able to put W.J. at ease with less effort
and, subsequently, take him by surprise with his sexual assault.
Brooks claims that he learned in therapy that he was only
attracted to 13 and 14ayear olds, rather than 10 and 11 year olds.
The problem with this argument is that it focuses on age, as
opposed to physical development. There is often no clear
difference in physical development among children in this age
range. Brooks failed to present specific evidence of any
developmental differences between G.M. and W.J. that caused him to
only be attracted to G.M. and not to W.J. G.M. had turned 13 just
one month prior to the sexual assault in Washington state, while
W.J. turned 11 soon after the sexual assault in Havre. The age
difference between G.M. and W.J., without more explanation, is not
sufficient to warrant a suppression of such a similar crime.
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 The District Court did not err in finding sufficient

similarity in the two crimes to meet the first element of the

modified Just rule.

Regarding the second element of the modified Just rule,

nearness in time between the two crimes, we conclude that the three

year time period between the prior crime and the assault against

W.J. is not so great as to render the evidence of the prior crime
inadmissible.

In State v. Medina (lPPO), 245 Mont. 25, 30, 798 P.2d 1032,

1036, we held that the range of three to five years between the
prior conviction and the charged crime was "near enough in time to

be considered probative." Although the facts differ in the case at

bar, when considering nearness of time, "each case must be examined
in light of its unique set of facts." Medina, 798 P.2d at 1036.

In Medina, a case in which the victim of the prior and charged

crime was the defendant's daughter, in considering the remoteness

of the prior crime, we took into account the fact that the

defendant did not have the "opportunity" to be alone with the

daughter for several years between the prior crime and the charged

crime due to the strict rules imposed by the family. Medina, 798

P.2d at 1036. Similarly, in the case at bar, the defendant did not

have the opportunity to be in contact with young or adolescent boys

for over a year because he was incarcerated or under the

supervision of the Washington State Department of Corrections.

Defendants' abstention from sexual abuse because of a lack of

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opportunity will not prevent this Court from taking into account a
prior crime because of remoteness in time from the present crime.
The District Court did not err in finding that the prior crime
was not too remote to be admitted under the second element of the
modified Just rule.
The third element of the modified Just rule is that the
evidence of crimes is admissible, among other reasons, to show a
tendency to establish a common scheme, plan, or system, as opposed
to being admissible to prove the character of a person in order to
show action in conformity therewith. Brooks' tendency, as a
prelude to sexual assault, to entertain young boys in a
recreational setting in order to make them feel comfortable, and
then catch them off-guard by sexually assaulting them, constitutes
a common scheme or plan as noted above.
The District Court did not err in finding that Brooks
developed a common scheme to an extent appropriate to admit the
prior crime under the third element of the modified Just rule.
Finally, analysis of the fourth element of the modified Just
rule, leads us to conclude that the probative value of the prior
crime is not outweighed by the prejudice to the defendant.
Although it is inevitable that the introduction of a prior crime
will have some prejudicial effect on a defendant, we held in State
v. Eiler (1988), 234 Mont. 38, 51, 762 P.2d 210, 218, that when the
prior crime meets the first three elements of the Just rule, these
elements combine to give "great probative weight to the evidence of
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prior acts." Accordingly, we conclude that because the prior crime
met the first three elements of the Just rule and the modified Just
rule, the cumulative effect is that the probative value outweighs
the prejudice to Brooks.
We hold that the District Court did not err in denying Brooks'
motion to suppress evidence of prior crimes. We affirm.

We concur:

n I
7’ ’
Chief Justice \

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 August 24, 1993

CERTIFICATE OF SERVICE

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

LAWRENCE A. LaFOUNTAIN
Attorney at Law
P.O. Box 1532
Havre, MT 59501

HON. JOSEPH P. MAZUREK, Attorney General
Elizabeth L. Griffmg, Assistant
Justice Blgd.
Helena. MT 59620

DAVID G. RICE
Hill County Attorney
P.O. Box 912
Havre, MT 59501-0912

ED SMITH
CLERK OF THE SUPREME COURT
STAE OF MONTANA