State v. Long

No. 85-564
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986

STATE OF MONTANA,
Plaintiff and Fespondent,
-VS-

CHANCY LONG,
Defendant and Appellant,

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Joseph Gary, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Leanne M. Schrauder, Bozeman, Montana

For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
A. Michael Salvagni, County Attorney, Bozeman, Montana
Marty Lambert, Deputy County Attorney, Rozeman

Submitted on Briefs: July 24, 1 9 8 6
Decided: October 3 0 , 1986

&L *"?
Clerk
Nr. Justice John C. Sheehy delivered the Opinion of the
Court.

Defendant Chancy Long appeals his conviction for two
counts of sexual assault following a jury trial in the
District Court, Eighteenth Judicial District, Gallatin
County. We affirm his conviction and remand his sentence for
rehearing.
The principal issues raised by Long on appeal are:
(1) whether the District Court improperly allowed the
testimony of juvenile girls, other than those for whom the
charges were filed, as testimony pertaining to prior acts
under Rule 404 (b), M.R.Evid. ; (2) whether the District Court
committed error in its cautionary and jury instructions when
it described the other girls' testimony as evidence of prior
crimes, rather than as evidence of prior acts; (3) whether
the District Court erred in refusing to permit evid.ence of
the absence of sexual assault of defendant's grandchildren
under Rule 106, M.R.Evid.; (4) whether the District Court
erred in refusing to instruct the jury on the offense of
misdemeanor assault; (5) whether defendant received effective
assistance of counsel; and, (6) whether the county
prosecutor's opening and closing statements unfairly
prejudiced the defendant.
On November 20, 1984, an information was filed against
the defendant charging him with three counts of sexual
assault against two four-year-old girls and a six-year-old
girl. In December and again in March, the county attorney
filed notices with the District Court and defendant notifying
them that the county attorney intended to introduce evidence
of other crimes, wrongs or acts involving four other girls.
The girls' ages ranged from 5 to 9 years at the time
defendant was in contact with them. The prosecution contends
the evidence was necessary to establish that defendant's
behavior was indicative of a common scheme of assaulting very
young girls. In April, 1985, defendant was convicted in a
trial by jury of sexually assaulting the two four-year-old
girls. The District Court dismissed the count of felony
sexual assault involving the six year old after the State
finished its case in chief.
At the time the offenses were committed, defendant owned
and operated a trailer court in Belgrade, Montana. The
children in the trailer court would often visit the
defendant's house to play with defendant's two grandchildren.
The incidents of abuse occurred between April, 1983, and
October, 1984. In October, the parent of one of the four
year olds overheard a conversation between her daughter,
W.B., and the other four year old, A.M., describing
defendant's assaultive actions. Later at trial the two girls
testified that defendant had pulled their pants down and
rubbed their vaginas.
The prosecution's evidence of other crimes, wrongs or
acts involving the four other children was as follows: H.D.,
en eight year old, testified that when she was alone with
defendant he touched her near her "private spot" which she
indicated was below her naval at her belt line. T.D., a six
year old, testified that defendant touched her on the thigh
when he was giving her a ride to school. This was the charge
dismissed after the State's case in chief. Another T.D., age
10, testified that defendant held her hand tightly with both

of his hands frightening her because she couldn't get away
from him. M.M., age five, testified that he had "rubbed her
bottom" several times when she was alone with him. Finally,
N.S. testified that in 1980, when she was nine years old,
defendant surprised her by kissing her on the lips. N.S.
reported the incident to her mother and from that time on
went to another neighbor's house after school, instead of to
the defendant's house.
The defendant is asserting on appeal that the testimony
of H.D., M.M., N.S. and. ten year old T.D. was improperly
admitted. by the District Court because their testimony
violated Rule 404(b), M.R.Evid. and State v. Just (1979), 184
Mont. 262, 602 P.2d 957.

The procedural aspect of this contention must be
considered first. It is a well established rule in Montana
that if counsel fails to object to an issue at trial, the
issue cannot be raised for the first time on appeal. In
State v. Patton (1979), 183 Mont. 417, 600 P.2d 194, this
Court considered allegations of error which were raised for
the first time on appeal and held that:
[a] District Court will not be put in error where
it was not accorded an opportunity to correct
itself. State v. Walker (1966), 148 Mont. 216,
223, 419 P.2d 300. The admissibility of evidence
to which no objection is made cannot be reviewed on
appeal. State v. Armstrong (1977), 172 Mont. '296,
562 P.2d 1129, 1132; State v. Dillon (1951), 125
Mont. 24, 30, 230 P.2d 764. The failure to object
or to move to strike testimony precludes objection
on appeal. State v. Cripps (1978), 177 Mont. 410,
582 P.2d 312, 317, 35 St.Rep. 967.
State v. patton (1979), 183 Mont. at 422, 600 P-2d at lg7-

In State v. Powers (1982), 198 Mont. 289, 645 P.2d 1357,
this Court examined the right to appeal an issue, not dealt
with at trial that testimony had. been admitted in violation
of Rule 404 (b), M.R.Evid., stating:
Defendants next argue that the District Court erred
in admitting testimony of prior acts of violence
committed by persons not defendants against the
 victim or other children. Initially, defendant
Powers' failure to object to this issue at trial
bars his raising it on appeal.
State v. Powers (1982), 198 Mont. at 299, 6 4 5 P.2d at 1 3 6 3 .
In his appeal, defendant is objecting to the testimony
of H.D., M.M., N.S., and ten year old T.D. However, at trial
defendant objected only to M.M.'s testimony, stating:
I didn't object earlier to [N.S. or H.D. & 10 year
old T.D.]. That testimony doesn't amount to a hill
of beans, judge. There is a little bit of smoke
there but I d-on't see fire anywhere.
Now, in the testimony of P I M , which I was just
...
able to ascertain at lunch time today, they were
talking about an act very similar to the
allegations that are charged. I think that it is
extremely prejudical to Mr. Long. In fact, the
prejudicial effect substantially outweighs the
probative value, and I would ask the Court not to
allow them to call this most recent witness who
will testify to acts that have not been charged.
It is apparent from the record that defendant's trial
counsel objected only to the admissibility of M.M. 's
testimony. Hence the issue now before this Court is whether
M.M. 's testimony was admitted in violation of Rule 4 0 4 (b),
M.R.Evid. and State v. Just, supra.
Rule 4 0 4 (b) provides that:
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
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.
Admissibility is also governed by four specific
substantive rules which are : (1) simil-arity between the
crime charged and the previous crimes, wrongs or acts; (2)

nearness in time between the charged crime and the previous
crimes, wrongs or acts; (3) tendency to establish a common
scheme, plan or system; and (4) a determination that the
probative value of the evidence is not substantially
outweighed by the prejudice to the defendant. State v.
Jensen (1969), 153 Mont. 233, 455 P.2d 631; Sta.te v. Just,
supra.
Defendant contends that the act testified to by M.M. was
not sufficiently similar to defendant's assaults upon A.M.
and W.B. to satisfy the first element of the Just test.
Defenda.ntls assault against A.M. and W.R., both four years
old, involved pulling the girls pants to their knees and.
rubbing their vaginas. M.M., age 5, testified that defendant
had "rubbed" her bottom. Her clothes had. not been removed.
Defendant argues that this act, standing alone, had no sexual
connotation and that it took on evil connotations only when
coupled with the charges of sexual assault.
It must be noticed that sexual abuse of children takes
subtle forms. Further, beca.use sexually abused children
often have a difficult time communicating what has happened
to them, it is wise to defer to the perceptions of the finder
of fact. In this case the trial judge admitted M.M.'s
testimony over defendant ' s trial counsel ' s objection and
properly submitted the matter to the jury for them to weigh
the evidence.
This Court established in State v. Tecca (Mont. 1986),

- P.2d -, 43 St.Rep. 264, that it is not necessary that
the prior acts be identical to the charged offense. The test
established in Tecca requires only that there be "sufficient
similarity" between the charged offense and the other crime,
wrong or act. Here, the State introduced evidence of the
prior act to show a common scheme, plan or design in the
defendant's conduct. Because of the subtle nature of child
abuse, we find the evidence or prior acts is similar enough
to the acts involved to justify its admission.
 Defendant alleges on appeal that M.M.'s testimony was
extremely prejudicial and that the prejudicial effect
substantially outweighed the testimony's probative value. We
disagree. The State had evidence of defendants acts against
A.M. and W.B. Given the elusive nature of sexual assault
against very young children, M.M.'s testimony was probative
of the State's theory that defendant's actions were not an
isolated event.
Defendant next alleges error in the trial court's
application of the Just procedural rules. These guidelines
require (1) that notice be given to defendant prior to
trial that evidence of other crimes, wrongs, or acts will be
introduced; (2) that there be an admonition by the judge to
the jury when the evidence is introduced that that evidence
is admitted solely for one or more of the accepted purposes
stated in Rule 404(b); and (3) that a cautionary jury
instruction to the same effect be given, providing in
unequivocal terms that the evidence is admitted for the
purpose earlier stated and not to try and convict the
defendant for prior wrongful conduct. State v. Just, 184
Mont. at 274, 602 P.2d at 963-964.
In keeping the second requirement of the Just procedural
guidelines, the trial court gave on four separate occasions
the following cautionary instruction:
Ladies and gentlemen of the jury, the State is
attempting to offer evidence that the Defendant at
another time engaged in other crimes. The only
purpose of submitting the evidence is to show proof
of motive, opportunity, intent, knowledge,
identity, and absence of mistake or accident. You
may not use that evidence for any other purpose.
The Defendant is not being tried for that other
crime. He may not be convicted of other offenses
than those charged in the case. Those charges are
involving [A.M., F1.B. and six-year-old T.D.] For .
the jury to convict the Defendant of offenses other
 than those charged in the information would be
unjust double punishment of the Defendant.
This cautionary instruction was first given during the
testimony of H.D. and was repeated before testimony of
defendant's acts by ten-year-old T.D., N.S., and M.M. After
the very first reading during H.D.'s testimony the following
exchange took place between defense counsel and the District
Court.
DEFENSE COUNSEL: Your Honor, I had earlier
indicated we wanted to object to that instruction;
as referred to this testimony as about to be
offered, as a crime. I feel that it is a comment
on the evidence. I would like to instruct the jury
that it may not or may be a crime. They can
consider the evidence for what it's worth.
THE COURT: You heard the objection made.
[Counsel] is objecting to the terminology of the
word "crime" and you will be instructed under--what
constitutes a crime. You can make that
determination yourself.
Defendant contends that the inference taken from the
"other crimes" instruction converted acts of doubtful
criminal nature into evidence of a course of conduct of
sexual assault. This is not the case. Here the court drew
the jury's attention to defense counsel's objection. Then
the court explained to the jury that it would be instructed
on what constituted the crime. The court also explained that
the jury would be free to exercise its own discretion in
determining if the acts did constitute crimes. To further
alleviate any possibility of unfair prejudice to the
defendant, the court, after repeating the "other crimes"
instruction as instruction 18, gave the following cautionary
instruction:
Instruction -
19
The preceding instruction [18] has been read to you
several times throughout the course of the trial.
It refers to other crimes of the defendant.
Although I use the term crimes to describe the acts
 testified to, I didn't mean to suggest that they
were criminal a.cts.
The giving of this final cautionary instruction protects the
balance between probative value and prejudicial effect by
alleviating any potential misconstruction of the repeated
caution referring to other crimes, wrongs or acts simply as
crimes.
This Court is not suggesting that the District Court's
abbreviation of the Just "other crime" instruction is
adopted. It merely approves its use in conjunction with the
above discussed mitigating steps intended. to protect
defendant from unfair prejudice.
Defendant next alleges error because the trial court
refused to allow evidence of the absence of criminal conduct
by defendant against his grandchildren. Again, however, the
defense objection runs afoul of procedural requirements on
appeal. Before trial, the county attorney's office filed a
motion in limine to preclude the defendant from discussing
whether or not he had molested his grandchildren. During the
hearing in chambers before trial, the District Court granted
the prosecutor's motion after the defendant's trial attorney
stated he had no objection.
Here again the defendant wishes to raise an objection to
the introd-uction of evidence for the first time on appeal.
As we stated earlier, citing the cases of State v. Patton
(1979), 183 Mont. 417, 600 P.2d 194, and State v. Powers
(1982), 198 Mont. 289, 645 P.2d 1357, defendant cannot appeal
an issue not tried at District Court level.
At trial defense counsel offered several instructions
stating tha-tmisdemeanor assault is a lesser included offense
of sexual assault. The District Court refused to so instruct
the jury and defendant appeals. We affirm the District
Court's decision.
This Court addressed this issue in State v. Madera
(Mont. 1983), 670 P.2d 552, 40 St.Rep. 1558. There we
explained that our statute, S 46-11-502(1), MCA, prevents
prosecution for more than one offense when one offense is
included in the other. F e also adopted the Blockberger v.
7
U.S. (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 test
for determining if there is a lesser included offense. This
test states that separate distinct offenses require proof of
additional facts, where lesser included offenses do not. "We
look to the statutes and not to the facts of the individual
case to make that determination." State v. Madera (Mont.
1983), 670 P.2d at 558, 40 St.Rep. at 1564.
An examination of the statutes defining misdemeanor
assault and sexual assault clearly indicate that misdemeanor
assault is not a lesser included offense of sexual assault.
A person commits the offense of misdemeanor assault if he
purposely or knowingly makes physical contact of an insulting
or provoking nature with any individual. Section
45-5-201 (1)(c), MCA. A person commits the offense of sexual
assault if he knowingly subjects another, not his spouse, to
any sexual contact without consent. Section 45-5-502(l),
MCA. In order to prove misdemeanor assault, the State must
prove that physical contact of an insulting or provoking
nature occurred. This is not required as proof of sexual
assault.
In order to adopt the defendant's lesser included
offense theory, this Court must find that sexual contact and
physical contact of an insulting or provoking nature are
interchangeable terms. This we will not do. The defendant's
contentions that misdemeanor assault is a lesser included
offense of sexual assault is not supported by the law.
Defendant next contends that he was denied effective

assistance of counsel at trial. To support this contention,
he argues that trial counsel conducted no independent
investigation of the facts, that counsel did not interview
the State's witnesses, did not seek the help of an expert in
preparing for trial and did not pursue examination
defendant's physical and mental health. He further claims
that counsel failed to prepare him as a witness or call
witnesses to testify on his behalf.
The standard used to review claims of ineffective
counsel comes from Strickland v. Washington (19851, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 as adopted in Montana in
State v. Probert (Mont. 19861, - P.2d - 43 St.Rep. 988;
State v. Boyer (Mont. 1985), 695 P.2d 829, 42 St-Rep. 247;
and State v. Robbins (Mont. 1985), 708 P.2d 227, 42 St.Rep.
1440. The two-pronged test is as follows:
First, the defendant must show that counsel's
performa~ce was deficient. This requires showing
that counsel made errors so serious that counsel
was not functioning as counsel guaranteed the
defendant by the Sixth Amendment. Second, the
defendant must show that the deficient performance
prejudiced the defense. This requires showing that
counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is
reliable.
Boyer, 695 P.2d at 831, 42 St.Rep. at 250 (quoting Strickland
v. Washington, supra). "Challenging the effective assistance
of counsel places a burden on a defendant to show 'that the
error allegedly committed by a lawyer resulted in prejudice
to him and stemmed from neglect or ignorance rather than from
informed professional deliberation.'" State v. Robbins
(Mont. 1985), 708 P.2d at 231, 42 St.Rep. at 1443. To show
prejudice "[tlhe defendant must show that there is a
reasonable probability that, but for counsel's unprofessional
errors, the result of a proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome. " Id. at 232, 42 St.Rep
at 1444. We are of the opinion that defendant cannot meet
the burden of proving that his counsel was ineffective.
Defendant's arguments on the issue rely almost totally
on matters which are not part of the record on appeal in this
case. There is no evidence in the record that the issue of
mental disease or defect should have been pursued nor is
there any indication in the trial transcript that defendant
was not capable of understanding the proceedings or unable to
assist counsel in his own defense.
Defendant argues that trial counsel erred by failing to
require that defendant undergo physical and mental
examinations in preparing the defense and prior to
sentencing. This argument imposes an unacceptable burden on
defense attorneys by requiring them to exercise diagnostic
skills beyond their training. In this case the record
suggests nothing that would evidence that defendant was
suffering from mental disease or defect. Trial counsel's
performance was not deficient under these circumstances.
Defendant also cl-aims that trial counsel erred in
failing to interview the state's witnesses, the children and
their parents. The decision about interviewing witnesses
prior to trial is tactical, especially in this case involving
potentially hostile parents and their children. If the
attorney believes he may obtain better results at trial
without having earlier interviewed the witnesses, that is his
prerogative. The exercise of discretion in making tactical
decisions cannot automatically be deemed ineffective
assistance. The same rule holds true for trial counsel's
decision to call no witnesses on the defendant's behalf.
There is no evidence that even if certain witnesses had been
called that their testimony would have been relevant to the
facts of the crime. Finally, although trial counsel may have
failed to prepare defendant as a witness, counsel's errors
was not so serious as to deprive defendant of a fair trial.
In fact, review of the transcript indicates defendant
carefully considered his responses before replying on
cross-examination.
Finally, defendant complains that the deputy county
attorney who prosecuted the case made inflammatory and
prejudicial remarks in his opening and closing statements to
the jury. In his opening statement, counsel for the
prosecution stated:
The children you are about to see testify, they are
the future. They are the future of this country
and of this state and of this nation. They will
become the doctors and engineers and nurses and
lawyers and county commissioners of tomorrow.
The testimony will prove, ladies and gentlemen,
that this man threatened our future. He threatened
our future.
The closing argument maintained the tone:
You have got your job to do, and I know that you
are not going to allow sympathy or prejudice on his
part or anybody's part to affect your decision.
This is the most important affair. Would you allow
your four or five year old to play with this
man? ...
Our future was threatened. That is
wrong.
Defendant believes that the above quoted statements
prejudicially exceeded the bounds of fair advocacy. It is
our duty in this instance to consider the trial record as a
whole and to ignore errors that have little, if any,
likelihood of having changed the result of the trial.
Although the prosecutor's arguments were over-broad and
dramatic, it is clear they did not by themselves render the
trial unfair. It is this Court's opinion that the
prosecutor' s comments did not affect the substantial rights
of the defendant or deprive him of a fair trial.
Defendant had requested on April 11, 1986 in a separate
motion that this Court suspend appeal and remand this case
for hearing on whether a new trial should be granted. We
denied that motion, but feel that evidence gathered in
support of that motion is pertinent to Long's sentence. The
evidence we refer to involves the results of examinations of
defendant by two physicians and a psychologist. The
examinations were conducted after defendant was sentenced and
suggested that defendant is suffering from organic brain
syndrome and progressive dementia. There is also some
indication that defendant is suffering from Alzheimer's

We believe the rule of law set out in § 46-14-311, MCA,
must be followed in this case. Section 46-14-311 states:
Consid-eration of mental disease or defect in
sentencinq. whenever a defendant is convicted o ?
n
verdict ...
and he claims that at the time of the
commission of the offense of which he was convicted
he was suffering from a mental disease or defect
which rendered him unable to appreciate the
criminality of his cond-uct or to conform his
conduct to the requirements of law, the sentencing
court shall consider any relevant evidence
presented at the trial and shall require such
additional evidence as it considers necessary for
the determination of the issue, including
examination of the defendant and a report thereof
as provided in 46-14-202 and 46-14-203.
In the insta.nt case the defendant's progressive dementia
was not diagnosed until after trial and sentencing.
Nonetheless, the evidence is clearly relevant and warrants
attention, especially as it relates to defendant's sentence.
 Defendant's April motion requested rehearing for purpose
of determining the necessity of a new trial. Our denial of
that motion is consistent with our present decision to remand
the issue of mental disease to the sentencing court for
review.
A medical diagnosis of mental illness that requires
treatment and a legal finding of mental disease
that relieves criminal responsibility are
distinguishable. It is possible to be diagnosed as
suffering from a mental illness for medical and
treatment purposes and, from a legal standpoint,
still be criminally culpable.
State v. Watson (Mont. 19841, 686 P.2d 879, 887, 41 St-Rep.
i452, 1462.
We affirm the defendant's conviction for sexual assault.
Whether his sentence should be conditioned because of a
mental disease or defect has not been determined in the
District Court. We remand the cause to the District Court
for further proceedings regarding his sentence with
opportunity provided to the State and the defendant to
present additional evidence as to whether the defendant's
sentence should be modified under 5 s 46-14-311 and 46-14-312,
MCA.

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Justice
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We Concur:
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Justices