No. 85-477
I N THE SIJPREME COURT OF THE STATE O MONTANA
F
1986
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
-vs-
LEE TECCA,
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e S i x t h J u d i c i a l D i s t r i c t ,
I n a n d f o r t h e County o f P a r k ,
The H o n o r a b l e Byron Robb, J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Knuchel & McGregor; K a r l K n u c h e l , L i v i n g s t o n ,
Montana
For Respondent:
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
Kathy S e e l e y , A s s t . A t t y . G e n e r a l , H e l e n a , Montana
Wm. N e l s Swandal, County A t t o r n e y , L i v i n g s t o n ,
Montana
S u b m i t t e d on B r i e f s : Jan. 9 , 1986
Decided: F e b r u a r y 11, 1986
Filed:
. -
Clerk
Mr. J u s t i c e Frank R. M o r r i s o n , J r . , d e l i v e r e d t h e O p i n i o n of
t h e Court.
Defendant Lee Tecca appeals his July 30, 1985, jury
conviction i n t h e D i s t r i c t Court o f t h e S i x t h J u d i c i a l D i s -
trict on one count of felony sexual assault. We affirm.
On the evening of November 8, 1984, the prosecutrix,
N.L., s t a y e d o v e r n i g h t w i t h h e r f r i e n d , Cindy T e c c a , a t the
Tecca r e s i d e n c e . D e f e n d a n t had r e c e n t l y f i n i s h e d a t e r m w i t h
t h e A i r F o r c e and was l i v i n g i n t h e Tecca home a t t h e t i m e .
N.L. was e l e v e n y e a r s o l d and d e f e n d a n t 2 3 y e a r s o l d . Defen-
d a n t was b o r n of Mrs. Tecca's previous marriage, and i s a
half-brother t o Cindy, a s w e l l a s t h e o t h e r Tecca c h i l d r e n .
About 8:00 p.m. that evening, defendant brought a
six-pack of heer home and took the beer d o w n s t a i r s where
Cindy and N.L. w e r e playing. Both g i r l s began d r i n k i n g h e e r .
About 9:00 p.m., d e f e n d a n t , C i n d y , and N.L. l e f t t h e house t o
go d r i v i n g . Mrs. Tecca was s t u d y i n g i n h e r bedroom, and was
unaware t h e g i r l s w e r e d r i n k i n g and t h a t t h e y h a d l e f t w i t h
defendant.
D e f e n d a n t b o u g h t a t w e l v e - p a c k o f b e e r , which was p l a c e d
i n t h e back s e a t w i t h t h e g i r l s . They d r o v e a r o u n d town f o r
a b o u t a n h o u r and a h a l f and t h e n r e t u r n e d t o t h e T e c c a home
about 10:30 p.m. Ry this time, N.L. and Cindy had each
consumed at least four or five beers; defendant testified
t h a t h e had n o t more t h a n two b e e r s d u r i n g t h e c o u r s e o f t h e
evening.
A s t h e y e n t e r e d t h e house, defendant suggested t h e g i r l s
go r i g h t t o s l e e p and n o t make any n o i s e . The g i r l s had
arranged their s l e e p i n g bags on t h e floor i n t h e basement
e a r l i e r i n t h e e v e n i n g , a n d p l a n n e d on s l e e p i n g t h e r e . N.L.
testified that she s l e p t f o r a while, b u t was awakened by
defendant. D e f e n d a n t was k n e e l i n g b e s i d e N.L. and had h i s
hand in her underpants with his finger in her vagina. Defen-
dant asked N.L. to roll over, but she wouldn't so he left. A
light in the hallway was on, and N.L. could see that it was
defendant; he was wearing only his underwear. About 20
minutes later Cindy became sick. After several trips to the
bathroom, Mrs. Tecca heard the commotion and moved the girls
upstairs.
N.L. did not tell her parents about the incident until a
week later. An information was filed January 4, 1985, charg-
ing defendant with felony sexual assault, in violation of
5 45-5-502 ( 3 ) , MCA.
On April 10, 1-985, the prosecution filed a Notice of
Intent to Introduce Evidence of Other Acts. Defense counsel
responded with a motion in limine to bar introduction of
prior acts evidence. A hearing was held before the district
iud.ge on May 24, 1985, and the motion in limine denied.
Defense counsel moved for reconsideration of the motion in
limine, and the motion was again denied on July 29, 1985,
prior to commencement of trial.
Trial was held July 29, 1985. Following the testimony
of N.L., testimony was given by R.T., S.W., K.W., and L.C.,
concerning prior acts of defendant. Prior to R.T.'s testimo-
ny about defendant's previous acts, the trial judge instruct-
ed the jury that they were to consider such evidence only for
the limited purposes of proving a common scheme or nethod
used in the commission of the alleged offense, identity of
the offender, or existence of intent. R.T., defendant's
half-sister, testified that she had moved out of the Tecca
home a week prior to the incident, because on three occasions
the previous month she had awakened at night to find defen-
dant sitting next to her bed clothed in only his underwear
with his hand resting on her bed. R.T. testified that
s i m i l a r i n c i d e n t s o c c u r r e d t h e p r e v i o u s two t i m e s d e f e n d a n t
was o n l e a v e , d u r i n g 1982 and 1983. R.T. further testified
t h a t when s h e was e i g h t (nine y e a r s a g o ) , defendant climbed
i n h e r bed a t n i g h t and t o u c h e d h e r b r e a s t s and v a g i n a . This
o c c u r r e d f o r n e a r l y two y e a r s , b u t t h e n s t o p p e d a f t e r d e f e n -
d a n t ' s f a t h e r became a w a r e and s p o k e w i t h d e f e n d a n t .
S .W. testified about an incident involving defendant
when s h e v i s i t e d t h e T e c c a home a b o u t f i v e y e a r s a g o . She
went t o d e f e n d a n t ' s room w i t h C i n d y , and d e f e n d a n t a s k e d S.W.
t o remove h e r c l o t h i n g . S.W. refused, s o defendant put h i s
arms around h e r from b e h i n d and u n b u t t o n e d h e r p a n t s . She
b u t t o n e d them baclc up and l e f t . S.W. was n i n e y e a r s o l d a t
the time.
K.W. t e s t i f i e d a b o u t two i n c i d e n t s w i t h d e f e n d a n t t h a t
o c c u r r e d w h i l e s h e was a t t h e Tecca home. On e a c h o c c a s i o n
K.W. was i n d e f e n d a n t ' s room a n d d e f e n d a n t a s k e d h e r t o h a v e
s e x w i t h him and h e e x p o s e d h i m s e l f . These i n c i d e n t s oc-
c u r r e d a p p r o x i m a t e l y two a n d f o u r y e a r s a g o , when K.W. was
a g e e i q h t and t e n , r e s p e c t i v e l v .
L.C. testified t h a t when s h e was twelve, about three
years before, she spent the night with R.T. at the Tecca
home. L.C. awoke t h a t n i g h t t o f i n d d e f e n d a n t n e x t t o h e r
bed w i t h h i s hand r e s t i n g on t h e b e d , h u t l e f t immediately
when h e r e a l i z e d L.C. was awake.
Jury instruction no. 16 was a limiting instruction
i n f o r m i n g t h e j u r y t h a t t h e p r i o r a c t s e v i d e n c e was a d m i t t e d
t o show p r o o f o f m o t i v e , o p p o r t u n i t y , p l a n , knowledge, iden-
t i t y and a b s e n c e o f m i s t a k e o r a c c i d e n t , a n d t h a t s u c h e v i -
dence was not to be used for any other purpose. After
deliberation, t h e jury returned a verdict of g u i l t y of sexual
a-ssault, a felony. The d i s t r i c t j u d g e s e n t e n c e d d e f e n d a n t t o
5 years, with 4 years, 1 months
1 conditionally suspended.
Defendant appeals his conviction and raises the following
issue:
Whether the District Court erred in allowing admission
of prior acts evidence?
Defendant contends that the admission of testimony
relating to his prior acts was a violation of Rule 404(b),
Mont.R.Evid, and d.id not meet the guidelines established by
this Court in State v. Just (1979), 184 Mont. 262, 602 P.2d
957. Rule 404(b), Mont.R.Evid., provides:
Other crimes, wrongs, acts. 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.
Rule 403, Mont.R.Evid. requires the exclusion of otherwise
relevant evidence: ". . . if its probative value is substan-
tially outweighed by the danger of unfair prejudice . . ."
In State v. Just, supra, we established a four-element
test to determine the admissibility of defendant's prior acts
or crimes. The four elements are:
1) The sirnil-arity of crimes or acts;
2) nearness i n time;
.
3) tendency to establish a common scheme, plan, or
system; and
4) the probative value of the evidence is not substan-
tially outweighed by the prejudice to the defendant. 184
Mont. at 269, 602 P.2d at 961.
Applying this test to the facts of the present case, we
find the trial judge was correct in all-owing testimony con-
cerning prior acts of d.efendant.
While the prior acts were not identical to the offense
committed in this case, there is sufficient similarity to
sustain admission. Each of the incidents involved young
g i r l s and o c c u r r e d i n t h e Tecca home. The t e s t i m o n y o f S.W.,
K.W., and R.T., c l e a r l y shows d e f e n d a n t ' s s e x u a l i n t e r e s t i n
young g i r l s . Defendant asked S.W. t o remove h e r c l o t h i n g and
t h e n unbuttoned h e r pa.nts; d e f e n d a n t a s k e d K.W. f o r s e x and
exposed h i m s e l f t o h e r ; and d e f e n d a n t went t o bed w i t h R.T.
f o r a l m o s t two y e a r s and touched h e r a l l o v e r . Both R.T. and
L.C. t e s t i f i e d t h a t t h e y had been awakened i n t h e m i d d l e o f
t h e n i g h t t o f i n d d e f e n d a n t n e x t t o t h e bed d r e s s e d o n l y i n
h i s underwear. These i n c i d e n t s b e a r s u f f i c i e n t s i m i l a r i t y t o
t h e c h a r g e d o f f e n s e t o uphold t h e i r a d m i s s i o n .
The p r i o r a c t s o f d e f e n d a n t t e s t i f i e d t o by t h e s e w i t -
n e s s e s go back a s f a r a s n i n e y e a r s . Defendant a s s e r t s t h a t
such e v i d e n c e i s t o o remote, and v i o l a t e s t h e t i m e limits
established by this Court for admitting p r i o r acts. See
e.g., S t a t e v . S t r o u d (Mont. 1 9 8 4 ) , 683 P.2d 459; 4 1 St.Rep.
919 ( t h r e e and a h a l f years); Sta.te v. Hansen ( 1 9 8 0 ) , 187
Mont. 91, 608 P.2d 1083, (two and a h a l f y e a r s ) . The t r i a l
judge agreed with t h e prosecutor t h a t t h e s e a c t s showed a
c o n t i n u o u s p a t t e r n o f c o n d u c t by d e f e n d a n t and t h e r e f o r e were
admissible. I n S t a t e v. D o l l (Mont. 1 9 8 5 ) , 692 P.2d 473, 4 2
St.Rep. 40 we s a i d :
Whether e v i d e n c e o f p r i o r c r i m e s i s t o o remote i s
directed t o the discretion of the d i s t r i c t court
and i s a m a t t e r t h a t goes t o t h e c r e d i b i l i t y o f t h e
evidence r a t h e r than i t s a d m i s s i b i l i t y , u n l e s s t h e
remoteness i s s o g r e a t t h a t t h e p r o f f e r e d e v i d e n c e
h a s no v a l u e .
W e a g r e e t h a t an i s o l a t e d i n c i d e n t from n i n e y e a r s ago
i s t o o remote, however, where t h e r e i s a c o n t i n u i n g p z t t e r n
of similar conduct, the remoteness problem is alleviated.
Accord, S t a t e v. Spence (Ariz. 1 9 8 5 ) , 704 P.2d 272, 274.
R.T. t e s t i f i e d t h a t defendant molested her f o r a period of
n e a r l y two y e a r s u n t i l d e f e n d a n t was c o n f r o n t e d by h i s fa-
ther. During t h e n e x t f o u r y e a r s , d e f e n d a n t was away i n t h e
s e r v i c e , y e t when he was home on l e a v e , i n c i d e n t s w i t h o t h e r
young g i r l s o c c u r r e d . A f t e r d e f e n d a n t r e t u r n e d home from t h e
service, R.T. testified that on many occasions defendant
e n t e r e d h e r room a t n i g h t i n h i s underwear, and t h a t , b e c a u s e
of t h e s e o c c u r r e n c e s , s h e moved o u t o f t h e house a b o u t a week
p r i o r t o t h e o f f e n s e a g a i n s t N.L. T h i s t e s t i m o n y shows t h a t
defendant's devia.te sexual conduct has been occurring for
a p p r o x i m a t e l y n i n e yea.rs. W d - e c l i n e t o e s t a b l i s h an a r b i -
e
t r a r y t i m e l i m i t f o r a d m i t t i n g p r i o r a c t s e v i d e n c e where such
a c u t - o f f would e x c l u d e p r o b a t i v e e v i d e n c e .
The p r i o r a c t s t e s t i m o n y shows d e f e n d a n t committed, o r
attempted to commit, sexual acts with young girls for a
p e r i o d o f n i n e y e a r s l e a d i n g up t o t h e o f f e n s e a g a i n s t N . L .
We find the number and similarity of incidents tends to
e s t a b l i s h a common scheme o r p l a n u n d e r t h e t h i r d prong of
the Just test.
F i n a l l y , we f i n d t h a t t h e p r o b a t i v e v a l u e o f t h e p r i o r
a c t s e v i d e n c e was n o t s u b s t a n t i a l l y outweighed. by t h e p r e j u -
d i c e t o defendant. While d e f e n d a n t was l i k e l y p r e j u d i c e d t o
a c e r t a i n d e g r e e , we c a n n o t s a y a s a m a t t e r o f law t h a t s u c h
prejudice clearly outweighed the probative value of this
evidence. The p r i o r a c t s e v i d e n c e e s t a b l i s h e d a c o n t i n u i n g
course of conduct by defendant and aided in determining
opportunity, intent, and i d e n t i t y . The v i c t i m i n t h i s c a s e
was an 11 y e a r - o l d who had consumed f i v e b e e r s t h e n i g h t o f
the incident. Testimony t h a t d e f e n d a n t had made advances on
o t h e r young g i r l s who had been i n t h e Tecca home t e n d s t o
corroborate the story of t h e victim.
In State v. Just, supra, this Court set forth three
procedural requirements for the admission of prior acts. The
requirements are:
(1) notice to the defendant prior to trial that
evidence of other crimes, wrongs or acts will be
introduced; (2) an admonition by the judge to the
jury when the evidence is introduced that it is
admitted solely for one or more of the accepted
purposes stated in Rule 404 (b); and (3) a caution-
ary jury instruction to the same effect, providing
in unequivocal terms that the evidence is admitted
for the purpose earlier stated and not to try and
convict the defends-nt for prior wrongful conduct.
184 Mont. at 262, 602 P.2d at 963-4.
There is no dispute that the prosecution timely filed a
notice of intent to introduce such evidence. Defendant
asserts the District Court failed to meet the second and
third requirements. We disagree.
The trial judge delivered the following admonition to
the jury before the prior acts testimony:
Ladies and gentlemen of the jury, evidence is about
to be introduced for the purpose of showing the
defendant committed crimes or acts other than the
one for which he is on trial. You may not consider
this evidence to prove that the defendant is a
person of bad character, or that he has a disposi-
tion to commit crimes. You may only consider this
evidence for the limited purposes of providing a
characteristic method, plan or scheme used in the
commission of the offense in this case, or the
identity of the person who committed the offense.
You may also consider this evidence to prove exis-
tence of intent, which is an element of the crime
charged. You may not consider this evidence for
any other purpose that would expose the defendant
to unjust double punishment.
There were four witnesses who testified as to defendant's
prior acts. Defendant argues that the trial judge was
required to deliver the admonition before each of these
witnesses testified. Defendant has cited no cases in support
of such a proposition, nor do we find Just requires the trial
judge to deliver an admonition each time prior acts evidence
is received.
F i n a l l y , d e f e n d a n t a s s e r t s t h e t r i a l judge d i d n o t g i v e
the proper cautionary instruction to the jury concerning
prior acts evidence. Court instruction no. 16 provided:
The S t a t e h a s o f f e r e d e v i d e n c e t h a t t h e d e f e n d a n t
a t a n o t h e r t i m e engaged i n o t h e r crimes, w r o n g s , o r
acts. T h a t e v i d e n c e was n o t a d m i t t e d t o p r o v e t h e
c h a r a c t e r o f t h e d e f e n d a n t i n o r d e r t o show h e
acted i n conformity therewith. The o n l y p u r p o s e o f
a d m i t t i n g t h a t e v i d e n c e was t o show p r o o f o f mo-
t i v e , o p p o r t u n i t y , p l a n , knowledge, i d e n t i t y and
absence o f mistake o r accident. You may n o t u s e
t h a t e v i d e n c e f o r any o t h e r p u r p o s e . The d e f e n d a n t
is n o t b e i n g t r i e d f o r t h a t o t h e r c r i m e , wrong o r
act. He may n o t b e c o n v i c t e d f o r any o t h e r o f f e n s e
than t h a t charged i n t h i s c a s e . For t h e jury t o
c o n v i c t t h e d e f e n d a n t o f any o t h e r o f f e n s e t h a n
t h a t c h a r g e d i n t h i s c a s e may r e s u l t i n u n j u s t
double punishment o f t h e defendant.
We find this to he a proper cautionary instruction
meeting t h e t h i r d procedural requirement o f J u s t .
W e a f f i r m t h e D i s t r i c t Cou
W e concur: