State v. Croteau

No. 90-484
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991

STATE OF MONTANA,
Plaintiff and Respondent,
v.
EDWARD CROTEAU, -
J U N 3 1g91
Defendant and Appellant. L2 3 w z ; f L
CLERKOFSUPREMECOURT
F OF MONTANA

APPEAL FROM: District Court ofthe Thiirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Stephen C. Moses, Moses Law Firm, Billings, Montana
For Respondent:
Honorable Marc Racicot, Attorney General, Jennifer
Anders, Asst. Attorney General, Helena, Montana;
Dennis Paxinos, County Attorney, Teresa McCann
OIConnor,Deputy County Attorney, Billings, Montana

Submitted on Briefs: April 11, 1991
Decided: June 3, 1991
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The defendant, Edward Croteau, appeals from his conviction on
two counts of sexual assault following a jury trial in the
Thirteenth Judicial District Court, Yellowstone County. We
reverse.
The defendant raises the following issues on appeal:
1. Did the District Court err in admitting prior acts under
Rule 4 0 4 ( b ) , M.R.Evid.?
2. Did the District Court err in giving the State's Jury
Instruction No. l?
3. Did the record contain sufficient evidence to support
the defendant's convictions?
4. Was the sentence imposed by the District Court excessive?
On January 13, 1989, the Yellowstone County Attorney's Office
moved for leave to file an Information charging the defendant with
sexual assault against C.B., a nine-year-old boy. The affidavit
in support of the motion stated that on at least five occasions
during October and November 1988, Croteau put his hands down C.B. s
pants to fondle his penis while C.B. sat on Croteau's lap, and in
this manner caused C.B. to have an erection. The Information was
filed on January 17, 1989.
The county attorney filed notices with the District Court and
the defendant notifying them that the county attorney intended to
introduce evidence of other crimes, wrongs, or acts involving
C.B.Is older brother, R.B., and M.S. Specifically, the notice
stated:
COMES NOW Teresa McCann OIConnor Deputy County
Attorney for the County of Yellowstone, State of Montana,
and gives notice to defendant of her intention to
introduce evidence at the trial of the above-entitled
cause of the following other crimes, wrongs, or acts:
a. That as a course of conduct between 1982 and
1985, the defendant did fondle [R.B.], DOB: 9-14-72, and
that one specific incident took place in Wyoming in 1982
and another on a trip to Mexico in 1985.
b. That the defendant, between 1985 and 1988, made
physical advances toward [M.S.], DOB: 1-25-73, by putting
his hand on [M.S. Is] knee, squeezing it and moving his
hand up [M.S.Is] thigh. This evidence is being offered
for the purpose of showing the defendant's opportunity,
intent, preparation, plan, knowledge, identity, or
absence of mistake or accident in committing the offenses
charged.
On August 9, 1989, the State filed an amended Information
charging Croteau with two additional counts of sexual assault
against M.S. and Z.B., both of whom were less than 16 years of age.
The State then filed a second notice of its intention to use
evidence of other crimes, wrongs, or acts committed by Croteau
against B.W.
On June 20, 1990, the State moved to dismiss Count I1 of the
amended Information, alleging sexual assault against M.S. That
motion was granted. The next day, four days before trial, the
State issued its third notice of its intention to use evidence of
other crimes, wrongs, or acts committed against N.B., J.B., S.C.,
and T.M. Following a two day trial commencing on June 25, 1990,
the jury found the defendant guilty of two counts of sexual assault
against C.B. and Z.B.
 At the time of the alleged offenses, the defendant lived and
worked in Billings, Montana. The children in Croteauls
neighborhood would often visit his house to play pool and watch
television. Croteau had been close friends with C.B. and R.B.'s
family for over ten years. On several occasions the children would
spend the night at Croteauls house. Croteau also took C. B. and
R.B., and other children, on overnight trips.
In November 1988, C.B. told his mother, and later testified
at trial, that Croteau had I1slobbered on [his] neckv1and put his
hands down C.B. Is pants while C.B. was sitting on Croteauls lap
watching television. C.B. testified that these incidents took
place almost every weekend when he visited Croteau during October
and November 1988. At trial, C.B. also testified how Croteau made
sounds "like a bear growlingI1Irubbed his whiskers against C.B.Is
chin, and touched C.B.Is penis until it "would stand up.I1
C.B. further testified that Croteauls activities ceased in
late November 1988 after C.B.Is mother confronted Croteau about
C.B.Is allegations at Thanksgiving dinner. Croteau denied ever
abusing C.B.
Z.B. testified that he was introduced to Croteau while at an

air show with his family in Billings when he was nine years old.
Z.B.Is family were also friends of Croteau. After the show, Z.B.
and his brother went over to Croteaulshouse to play pool and watch
television. While at Croteauls home, Croteau laid Z.B. on top of
his stomach so that Z.B. could feel Croteauls penis. Z.B.

testified that Croteau held him there until his penis got hard and
then went soft. Croteau repeated the same acts on Z.B. when Z.B.
and his brother spent the night at Croteaurs house. Z.B. also
testified that he spent the night at Croteau's house two or three
other times, and on each occasion the same incident occurred.
Croteau also denied abusing Z.B.
During the trial, over the defendant s objection, the District
Court allowed the State to introduce evidence of other acts of the
defendant under Rule 404(b), M.R.Evid. Although the State listed
a number of witnesses in its notices, the State only called S.C.
and R.B. to testify to other acts of the defendant. Only the
"other crimesrr
testimony of R. B. is at issue on this appeal.
In December 1988, R.B., C.B. Is older brother, gave a statement
to the police describing instances of Croteau sexually molesting
him. These molestations took place on trips R.B. took with Croteau
outside of Billings. R.B. told the police, and later testified at
trial, that Croteau fondled his penis on a trip to Mexico in 1982.
These acts were described in the Staters first Just notice. On
June 25, 1990, the day of the trial, the county attorney handed
Croteau's counsel a new statement from R.B. dated March 1990. In
this second statement, R.B. claimed that Croteau touched and
fondled him in Croteaurs house. The defendant objected to the
admission of testimony concerning incidents occurring at his house,
arguing that the State failed to properly notify him under State
v. Just. The District Court disregarded Croteau's objection and
allowed the testimony.
 In that testimony, R.B. described a number of fondling
incidents while spending the night at Croteau's house. These
incidents occurred from the time R. B. was in the second grade until
1987, when he was in the eighth grade. Croteau denied abusing R.B.

Did the District Court err in admitting other acts under Rule
404 (b), M.R.Evid.?
Croteau contends that the District Court should have excluded
R.B.'s testimony regarding other acts because the testimony did not
meet the substantive and procedural requirements of prior crimes
or prior acts evidence as set forth in State v. Just, 184 Mont.
262, 602 P.2d 957 (1979).
The general rule is that evidence of other crimes or prior
acts must be excluded. Rule 404 (b), M.R.Evid. The reason for this
long-standing rule is that prior acts or crimes are highly
prejudicial to the defendant, and usually irrelevant for purposes
of the charged crime. In State v. Tiedeman, 139 Mont. 237, 242,

362 P.2d 529, 531 (1961), we explained:
The general rule should be strictly enforced in all
cases where applicable, because of the prejudicial effect
and injustice of such evidence, and should not be
departed from except under conditions which clearly
justify such a departure.
Evidence of a defendant's prior acts or uncharged misconduct

creates the risk that the jury will penalize a defendant simply for

his past bad character. E . Imwinkelried, U z h r e M s o z z c Evide\zce,
i c n g d icrdit
 However, under Rule 404(b), M.R.Evid., evidence of a
defendant's prior acts or prior crimes may be lladmissible
for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident.'' In Just, we set forth specific procedural requirements
which must be followed before prior acts or crimes can be admitted
for one of the reasons set forth in Rule 404(b), M.R.Evid.
Croteauls procedural claim of error relates to the notice
requirements in Just. In Just, we stated:
Evidence of other crimes may not be received unless
there has been notice to the defendant that such evidence
is to be introduced. The procedures set forth in Section
46-18-503, MCA, should serve as guidelines for the form
and content of such notice. Additionally, the notice to
the defendant shall include a statement as to the
purposes for which such evidence is to be admitted.
Just, 602 P.2d at 963-64.
The defendant contends the State violated the notice
requirements under Just by failing to notify him that evidence of
prior acts occurring at his house would be introduced into
evidence. At trial, R.B. testified to several incidents of
inappropriate touching while spending the night at Croteaulshouse.
However, in the original Just notice concerning R.B.'s testimony,
there is no mention of improper activity occurring at Croteauls
house. The notice only stated:
That as a course of conduct between 1982 and 1985,
the defendant did fondle [R.B.], DOB: 9-14-72, and that
one specific incident took place in Wyoming in 1982 and
another on a trip to Mexico in 1985.
 The State argues that the phrase "as a course of conduct
between 1982 and 1985," covered any incidents that happened at
Croteau's house between Croteau and R.B. We disagree. The purpose
of the notice requirement is to allow the defendant to prepare for
and respond to the allegation of previous conduct. The State's
original notice did not further that purpose, and therefore, was
insufficient to satisfy the notice requirement under Just.
Despite this lack of notice, the State contends that Croteau
was aware of the State's intention to introduce testimony of prior
acts occurring at Croteau's house. On the morning of the trial,
the State delivered to Croteau's counsel a new statement from R.B.
dated March 1990. This statement expanded and changed R.B.'s
previous statement to include Croteau's touching and fondling of
R. B. in Croteau's house. The State claims this last minute
delivery adequately informed Croteau of the State's intent to
introduce the testimony. Furthermore, the State claims any
prejudice to Croteau could have been cured by Croteau requesting
a continuance to familiarize himself with the statement.
In order for Croteau to prepare to defend against prior acts
or crimes testimony, the State must give Croteau a timely and
specific notice of intent to introduce such evidence. A review of
the notice reveals the State's notice was neither timely nor
specific. The notice requirement must be given sufficiently in
advance of trial to afford a defendant a reasonable opportunity to
prepare to meet the evidence against him. That requirement is not
satisfied by information delivered on the first day of trial. The
State's willingness to consent to a continuance to allow Croteau
to review R.B. 's new statement does not cure the State's defective
notice and the prejudice to Croteau. It is not acceptable to give
the defendant the option of waiving his constitutional right to a
speedy trial so that he can deal with the State's untimely notice.
The defendant has the right to a speedy trial and proper notice
under Just, and cannot be compelled because of untimely notice to
choose between the two.
Next, Croteau contends that the State's Just notice was
procedurally defective because the State did not specifically state
the relevant purpose for admitting the evidence. The notice
stated:
This evidence is being offered for the purpose of
showing defendant's opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or
accident in committing the offenses charged.
In Just, we explained that ''the notice to the defendant shall
include a statement as to the purposes for which such evidence is
to be admitted." Just
I 602 P.2d at 964. Here, the State simply
used a llshotgunll
approach and named all of the possible reasons,
with the exception of motive, set forth in Rule 404(b), M.R.Evid.
This type of llshotgunwnotice fails to specifically state the
relevant reason to admit other acts of the defendant. Recently,
in State v. Sadowski, - P . 2 d I 48 St.Rep. 93, 96 (Mont. 1991),
we explained:
The State must also demonstrate that the evidence
is logically relevant towards one of the Rule 404(b)
examples or some other fact in issue and not merely
introduced as proof of a character defect or propensity
 of the defendant in order to show that he acted in
conformity therewith. Rule 404(b), M.R.Evid.
In Sadowski, the defendant claimed self-defense and the State
sought to admit prior acts of the defendant under Rule 404(b),
M.R.Evid., to prove the defendant's intent when he shot the victim
and to rebut his claim of self-defense. In Sadowski, the intent
of the defendant was at issue, and prior acts under Rule 404(b)
were properly admitted to disprove the defendant's claim of self-
defense. In this case, the State did not specify the reason under
Rule 404(b) for which the defendant's other acts were logically
relevant. The trial court and this Court should not be required
to speculate which, if any, of the Rule 404(b) examples stated in
the State's notice applies, or was intended to apply, in this case.
Future notices which simply incorporate all, or substantially all,
of those reasons set forth in Rule 404(b) will not be satisfactory
under the Just notice requirements. The notice to the defendant
must identify the specific Rule 404(b) purpose for which it is to
be admitted.
Accordingly, the State has failed to meet the procedural
requirements under Just. Failure to adhere to the procedural
mandates of Just constitutes error. State v. Case, 190 Mont. 450,
460, 621 P.2d 1066, 1072 (1980); State v. Gray, 197 Mont. 348, 353,
643 P.2d 233, 236 (1982).
Croteau also contends that R.B.'s testimony should have been
excluded because it fails to meet the substantive requirements
under Just. However, the evidence was that much of the conduct
which formed the basis of the charges against the defendant
occurred during shared seating arrangements or roughhousing of some
type. Prior similar incidents would have been probative to show
that the contact was not by accident, and therefore, admissible
under Rule 404(b). Here, we reverse because the State did not
comply with the procedural safeguards which would have enabled the
defendant to adequately prepare for trial and defend himself
against claims of prior bad acts.

Did the District Court err in giving the State's Jury
Instruction No. l?
The defendant contends that it was reversible error for the
District court to instruct the jury as follows:
Where two witnesses testify directly opposite to
each other on a material point and are the only ones that
testify [on] that same point, you are not bound to
consider the evidence evenly balanced or the point not
proved; you may regard all the surrounding facts and
circumstances proved on the trial and give credence to
one witness over the other if you think the facts and
circumstances warrant it.
This Court has historically disapproved of this instruction
in criminal cases. State v. Jones, 48 Mont. 505, 523-24, 139
P. 441, 448 (1914); State v. Darchuck, 117 Mont. 15, 21, 156 P.2d
173, 175 (1945); State v. Carns, 136 Mont. 126, 139, 345 P.2d 735,
743 (1959). The reason for this Court's disapproval has been that
the instruction reduces the State's burden of proof in a criminal
case from guilt beyond a reasonable doubt to that applicable in a
civil case, which is a preponderance of the evidence. Jones, 139
P. at 448; Carns, 345 P.2d at 743. Likewise, we hold the District
Court erred in giving the State's Jury Instruction No. 1, and
should avoid giving such an instruction during any retrial of this
case.
Since the defendant's conviction is reversed and this case is
remanded to the District Court for retrial, based on our
consideration of Issue No. 1, it is not necessary to consider the
last two issues raised by the defendant.
We reverse.

We Concur:

9%
Chief ~ u s t i c d