*1 STATE OF MONTANA, Respondent, Plaintiff v.
EARL DALLAS FORD,
Aрpellant.
Defendant
No. 95-158.
Submitted on Briefs June
1996.
Rehearing Denied November
1996.
Decided October
1996.
St.Rep.
For William Appellant: Law, at Missoula. *3 Respondent: Joseph Mazurek, For Hon. P. Attorney General, Collins, Pamela Attorney General, Helena; P. Assistant Robert L. “Dusty” HI, Deschamps County Attorney, Missoula Missoula.
JUSTICE TRIEWEILER delivered the Opinion of the Court. Defendant, charged by Earl Dallas information filed in the District Court of the Fourth Judicial District in Missoula County, the with offense of sexual consent, intercourse without a felony, 45-5-503, in violation of MCA. a Following jury, § trial Ford and appeals convicted sentenced. He the District Court’s judg- ment. We affirm the District Court.
The issues on appeal are: there to support Was sufficient evidence the verdict? the
2. Did District Court err it when denied Ford’s a motion for mistrial?
3. Did the objections District Court err when it overruled to during asked cross-examination, and to statements closing argument made the State’s regarding pref- his sexual erence?
4. Did the sentence imposed District Court violate Ford’s rights pursuant II, 22, to Article Section of Montana Constitution?
FACTUAL BACKGROUND the offense of sexual inter- charged with Earl Dallas Ford was 45-5-503, MCA. The consent, felony, in violation of § course without Stahl, incapacitated Brad drugged that Ford and alleged information Stahl, without Stahl’s in sexual intercourse engaged then and guilty. of not plea He entered a consent. Intent to filed a “Notice of proceedings, State
During pretrial Acts,” to State v. Just pursuant of Other Evidence Introduce of 46-13- requirements § and the notice to evidence of a conviction sought present The State MCA. fоr which Ford was sen- felony child molestation California for Intent years. also filed a “Notice of for three The State prison tenced to felony Punishment,” pursuant persistent to Increased to Seek -502, -503, MCA. 46-18-501, and statutes, §§ offender 11, 1994. The District Court on October by jury Trial commenced Intent Intro- the State’s “Notice of to opposing Ford’s motion granted granted The District Court also of Other Acts.” duce Evidence Lewis, testify officer, Tom to investigating to allow the motion State’s boy in California. arrest, raping admitted to time of that, at the witness, July that on Stahl, testified complaining Brad Missoula, slept he on the in East attending after a barbecue quite asleep He was not when in Earl Ford’s trailer. living room couch mouth, to and was then unable placed over his something he felt consciousness, he realized that someone’s regained heWhen breathe. awake, and he was disoriented Although anus. in his penis was move, he into the bathroom finally able to went to move. When unable He back wearing any clothes. wаlked that he was not and discovered couch, put them room, under the found his clothes living into attempted him on the couch. Brad down next to Ford then sat on. back, baby-oil on his and tried trailer, Ford rubbed but leave attempted Brad sleep. Again, go him to lie down and back convince the bed. and onto him into his bedroom leave, pushed but Ford leave the trailer. bedroom, finally able to and was exited Brad He then truck for one hour. drive, slept in his unable to Feeling for three house, slept in his truck uncle’s drоve to his up, woke *4 more hours. Charlie, cousin, and his by his Brad, accompanied day, next he had admitted what apologized, Ford. Ford Kevin, confronted
uncle, the return Brad demanded “a man.” good Brad he was done, and told from his bedroom. Ford retrieved underwear, which of his days later, police Several Brad went to the and to a doctor. Although ejaculated him, tearing had in Brad suffered some Ford not his drugged, He that he been anus. told nurse had that anal inter- him, that had performed upon course hаd been he not consented to intercourse, trial, and angry and that he was emotional. At the time of seeing a he was counselor. confirmed July
Charlie on Stahl Brad was not intoxicated. He the confrontation described between Ford and Brad July 15, 1994, noting that apologized repeatedly. on Ford He also recounted Brad’s emotional distress.
Likewise, intoxicated, Kevin Stahl was confirmed Brad provided a confrontation description and similar of the between Ford Furthermore, and Brad. he July 15, tеstified that on the morning 1994, Kevin had found Brad in As asleep his truck. Brad exited the hug, truck and for immediately asked a Kevin knew something was wrong. The two men then around an drove hour while Brad relayed rape. the events of the also Kevin recounted the and physical emotional pain experiencing. Brad was Lewis, deputy
Officer Tom a sheriff with the County Missoula Department, Sheriff’s was the investigating arresting officer. regarding Lewis Brad, testified his interview attempts his that, locate pursuant trailer, to a search of Fоrd’s he found baby small bottle Johnson’s oil. During testimony, his the follow- ing exchange occurred:
Q: you ask Did to search his residence? Yes, A: did. asked Mr. Ford consent to search. Prior to when I advised Mr. Ford that there charges pending were on violation out another state and- point, objected
At that Ford ruling based the District Court’s regarding evidence other acts. After the District Court overruled objection, mistrial, his Ford moved for a which the District Court proceeded denied. The State question Officer No Lewis. further regаrding information Ford’s prior Immediately offenses was elicited. testimony, cautionary Lewis’s the District Court issued The jury only instruction. was told to consider the merits of factors, any particularly instant case and not other any jurisdiction. other wanted behalf, having
Earl Ford testified on own and denied sexual baby-oil intercourse with Brad Stahl. He admitted that had rubbed back, Brad, merely soothing on Brad’s but claimed he who had *5 complained hangover. of a bad His apologies day, alleged, the next he only for his grumpy During werе behavior. the State’s cross-exami- following exchange nation of occurred: Q: true, not, you It is it is that have an in homosexuality? interest Yes, A: it is. (defense counsel): honor,
MR. BECCARI going object, Your am to incredibly that is so prejudicial. nothing It is I brought up my direct examination.
THE COURT: Overruled.
Q: you Would explain interest, please? just
A: I have an interest in men.
Q: you homosexual, Are a bisexual or what?
A: Bisexual. Subsequently, during the State’s closing argument, the following statements were made:
THE STATE: I’m get this, hesitant and reluctant into but I feel your to call have this to attention. I am gay bashing, I am not bashing, got bisexual I have things better to do. But got we have a man here— (defense counsel):
MR. BECCARI going object I am to this in It closing argument. by any evidence, is not supported totally— it is THE COURT: It argumentative, is it is admitted.
THE STATE: We have a man that admitted he is bisexual. That’s exactly what he is with doing. What he does with consent somebody, I don’t give rip. a But Brad happened cares what to him. jury guilty verdict, returned a presentence and a investigation At
report sentencing ordered. hearing, the District Court designated persistent felony offender, Ford as a pursuant 46-18- §§ 501, -502, MCA; and -503 and a dangerous offender for purрoses of parole. The District Court years, sentenced him to 100 and ordered that he eligible parole shall not be participation or in a supervised program release while serving his term. appeals
Ford now to this It Court. should be appeal noted accompanied brief, an Anders filed by the Missoula Public Office, contending Defender that there are no meritorious appealable issues in this case. We affirm the judgment of the District Court.
ISSUE 1 jury Was there sufficient evidence to supрort the verdict? sufficiency supporting When we review the evidence case, whether, verdict in a criminal the standard of review is viewing light prosecu after the evidence in the most favorable to the any rational of fact have found tion, trier could the essential elements beyond of the crime reasonable doubt. State v. Licht Mont. brief, contending
The Anders while are there no meritori grounds appeal, provides ous notice to this Court that Ford wishes unfairly arrested, issue: That charged, rаise Stahl, convicted word lying. essence, on the of Brad who was In Ford claims that there was insufficient evidence to support jury’s verdict. *6 jury presented conflicting testimony with the of Brad Ultimately, they and Earl Ford. accept
Stahl decided to ver- Brad’s sion, reject and to Ford’s jury’s version. This is the prerogative according 25-7-103, to the law in Section MCA, Montana. provides jury fact, that in a trial all limited questions of exceptions, are by jury. to be decided prior
Our in decisions establish that sex cases offensе the victim’s testimony be Gilpin need not corroborated. State (19288), v. 232 56, 70, 445, Mont. 756 P.2d State (1992), 453. In v. Biehle 251 Mont. 257, 824 P.2d victim testified that the sexual contact was testimony committed the defendant. We held that such was suffi- Mont, Biehle, guilty cient sustain a verdict. 251 at 824 at P.2d Additionally, jury the testimony Stahl, 271. heard of Charlie Stahl, Lewis, presented Kevin and Officer and was with the bottle oil found in baby Ford’s trailer. presented,
Based on the evidence a rational trier fact could have found the beyond essential elements of the crime a reasonable doubt. Accordingly, we hold that there was sufficient evidence to support jury’s verdict. 2
ISSUE Did the District Court err it denied Ford’s a when motion for mistrial?
When we review a District Court’s
on a
a
ruling
motion for
mistrial, of review is
there
clear
standard
is
and convinc
ing
ruling
evidence that
the court’s
is erroneous. State v. Greytak
(1993),
401, 404,
Furthermore,
262 Mont.
865 P.2d
a
when there is a
appropriate
mistrial
demonstration
manifest
necessity, or when the defendant has been denied a fair and impartial
(9
(1824),
United
165;
trial.
States v. Perez
U.S.
L. Ed
Wheat.)
(1987),
247, 252-53,
State v.
Brush
228 Mоnt.
741 P.2d
1336;
(1981),
Doney
22, 32-33, 636
State v.
1377, 1383.
Mont.
necessity
Court
This
has invoked
manifest
twenty-two
doctrine
employed
since it was
times
first
State v. Close
Unfortunately,
At Officer Lewis testified: asked Mr. Ford consent to search. Prior when I advised Mr. Ford that there were charges pending violation out of another state and— added). objection
(emphasis testimony to this and subsequent for a both appeal, motion mistrial were denied. On that claims Lewis’s statement constituted Officer inadmissible evidence of other and “ensured the would [Ford] crimes convict based on who he he Therefore, contends, rather than what did.” the District error when it deniеd his a Court committed reversible motion for mistrial. necessity mistrial,
We conclude that there was not a for a manifest impartial First, Ford was not denied fair and trial. slight effect, had if only prejudicial any. statement Officer did Lewis testify about any prior Rather, crimes or convictions. he men- jurisdiction another charges tioned from were pending, and *7 they were attempting one of the reasons he was to He locate Ford. speculate not about the nature of other charges. did those Seсond, any prejudicial might effect the statement have had was cautionary following given by cured the instruction which was the Court: District you testimony gentlemen, just and have heard the of
Ladies concerning to locate attempts Detective Lewis the Defendant. only thing you are consider is the merits of this case alone. any factors, any are not to other particularly You consider whether jurisdiction anything you him or of that nature. other wanted And any not to at all from of that information. You are speculate are solely to the or the yourself aspect guilt confine innocence of do charges speculation on these and no as particular Defendant
361 anybody any other Does have any Agreed? problem matters. concept? error in may “[a]n have held that the admission evidence be We jury disregard if the is admonished to it.” State cured v. Conrad (1990), 1, 9, 241 Mont. 785 P.2d 190. In Conrad we on to went the trial conclude in view of court’s admonishment of the after evidence of the defеndant’s other misconduct came in cross-examination, prior the State’s reference to during convictions Mont, Conrad, constitute error. did not reversible at 785 P.2d at 190. little,
We conclude that Officer Lewis’s could statement have had any, jury’s decision, if effect on the and that fails to meet his showing convincing burden clear evidence of error agree District Court. We with the Court District the circum- mistrial, stances this case did warrant a conclude that Ford Accordingly, received fair and trial. impartial we hold that Court did not err when it District denied Ford’s motion for a mistrial.
ISSUE 3 Did District Court err when it objections overruled Ford’s cross-examination, asked during his and to made statements argument closing regarding State’s his sexual preference? evidentiary we review an ruling, When the standard of review is the district court abused its discretion. State v. Gollehon (1993), 293, 301, Mont. 1263. The district court is admissibility best position in the to rule on the of evidence at trial. It opportunity has the to evaluate the contextual relevance of proffered evidence, and such impact jury. Rulings evidence will have on the admissibility of evidence are left to the sound regarding discretion court, be appeal showing of the trial and will not overturned on absent a Mont, Greytak, abuse of at at of manifest discretion. 865 P.2d Thus, gives our court 1098. deferential standard of review district ruling admissibility “great discretion” in of evidence. State v. 843 P.2d Larson During the State’s cross-examination ex- occurred: change
Q: true, not, you homosexuality? It is it have an interest Yes, A: it is. *8 counsel): (defense honor, going object, BECCARI Your I am
MR. incredibly prejudicial. nothing brought up my so It is that is examination. direct
THE COURT: Overruled.
Q: interest, you explain please? Would just have an interest in men. A: homosexual,
Q: you a bisexual or what? Are A: Bisexual. during closing argument, the State’s
Subsequently, made: statements were get this, I’m hesitant and reluctant to into I feel
THE STATE: but your gay bashing, attention. I am not I am not I have to call this bashing, got things got I have to do. But we have bisexual better man here— (defense counsel): going object
MR. BECCARI I am to this in evidence, supportеd by any totally— It is not it is closing argument. THE COURT: It is it is admitted. argumentative, man that admitted he is THE STATE: We have a bisexual. That’s doing. with he does exactly what What with consent somebody, give rip. happened I don’t But Brad cares what to him. questions during the State’s his cross-examina-
Ford asserts that closing argument regarding its his sexual tion and statements deprived that he of a fair trial. preference prejudicial were so case, the probative hold based on the facts of this value We substantially outweighed by not of the State’s evidence was By prejudice. admitting ofunfair See Rule M.R.Evid. this danger discretion, evidence, the District Court did not abuse its and did not error. commit reversible is, in this situ- unquestionably, potential prejudice
There be, virtually every jury, would find people There will who ation. of a homosexual or bisexual lifestyle preferences and sexual crime everyone should be offended person offensive. While committed, justice system criminal must found to have our Ford was are convicted necessary people to assure precautions take the inflammatory and not on the basis of some guilt, on evidence of based and district courts Therefore, prosecutors we caution trait. personal that evidence of a defendant’s assume, opinion, on this based not In under most circumstances. be admissible preference sexual would case, however, rights we conclude that Ford’s adequately this were that he is a safeguarded, and convicted because he bisexual. potential prejudice, preference Despite sexual to, probative was relevant of an essential issue in this case. Ford *9 consent, sexual intercourse upon without committed person gender. the same The State’s questions cross-examina of tion, during closing probative and statements argument, were of profile fit the of someone would Ford who commit the act for true especially given which was accused. This the fact crime, nature society of the of the not all members of because would Furthermore, profile. recognized fit the we perpetrator’s have that State, making closing right its argument, the when has the to com upon suggest the evidence and the ment the inferences to be (1990), therefrom. See State v. 241 Campbell 323, 329, drawn Mont. 329, 787 P.2d it
Finally, has not been shown that the State’s questions and prejudiced rights. statements Ford’s substantial verdict, rendering Before its the jury presented with the baby following evidence: the oil trailer; bottle found Ford’s the guilt expressions admission of and by remorse made Fоrd to the victim; unlikely explanation expressions for his of remorse; testimony Stahl, Stahl, and the of Charlie Lewis, Kevin and, Officer significantly, most Brad possible Stahl. The impact jury’s knowledge pales comparison was bisexual likely impact of overwhelming guilt. evidence of his we
Accordingly, hold that the District Court did not abuse its it discretion Ford’s objections when overruled to the questions State’s on cross-examination and statements its argument. closing ISSUE 4 Did the sentence District imposed Court violate Ford’s rights pursuant II, 22, Articlе Section theof Montana Constitution?
It is well established our review of a sentence will be legality. (1995), limited to State v. Graves 272 Mont. 549, 557; (1988), 901 P.2d State v. Hurlbert Mont. 1110, 1115. P.2d We will review a sentence for mere inequity; for a proper forum review that nature is the Sentence Review v. Division. State Almanza 229 Mont. P.2d 1089, 1090-91. years, parole
Ford asserts his sentence of 100 without eligi- bility, II, violates sanction of Article provision excessive Section states, provision “[e]xcessive Constitution. That
22, of the Montana imposed, or excessivе fines or cruel and required, shall not be bail that the inflicted.” He claims harshness of his punishments unusual unconstitutionally disproportionate gravity to the of his sentence is crime. Ford, the District Court found that he is a sentencing
Before offender, 46-18-501, -502, -503, and felony pursuant persistent §§ Further, during pretrial proceedings, MCA. State filed “Notice Punishment,” 46-18-501, pursuant to Seek Increased to §§ of Intent and the -502, -503, presentence MCA. Based on those statutes prison Court sentenced Ford to investigation report, District offender, yeаrs, designated dangerous him a a term of 100 ineligible parole. him declared illegal parameters is not when it is within the
A sentence Henry (1995), 491, 497-98, 898 by statute. State v. provided 46-18-502(1), MCA, felony “a persistent 1199. Under § prison in the state for a term of not less imprisoned offender shall be years.” clearly than 100 Ford’s sentence falls years than 5 or more 46-18-502, parameters MCA. § within *10 to determine the judges granted appro- are broad discretion “Trial 407, 411, State v. Hembd priate punishment.” sentencing Ford, discretion and exercising 415. In its ofthe instant Court considered the factors: facts District boys; crime; history sexually preying young criminal prior his by professional therapists and state officials previous attempts apparent unwillingness accept provided his problems; treat his treatment; All of the aforementioned fac- predatory and his nature. sentencing when a defendant. appropriate tors are considerations Accordingly, legally that the District Court’s sentence was we hold II, to Article rights pursuant and did not violate Ford’s imрosed 22, of the Montana Constitution. Section may today any right does not affect to relief have Our decision the Sentence Review Division. from Court is affirmed. judgment of the District TURNAGE, HUNT and ERDMANN JUSTICES
CHIEF JUSTICE concur. LEAPHART, concurring. specially
JUSTICE three has been stated as follows: concur in issue which specially objections to it overruled Ford’s the District Court err when Did cross-examination, statements and to during asked during closing argument regarding made the State’s his sexual pref- erence? on the fact
This issue focuses cross-examination of testimony elicited indicating State he was bisexual. Then, during closing arguments, regard bisexuality, with the State argued: exactly doing. “That’s what he is with heWhat does somebody, give rip. consent with I don’t But Brad cares what to him.” happened probative
The Court herein has held that the value State’s substantially outweighed danger evidence was of unfair prejudice and District Court did not abuse its discretion in admitting this evidence. The prefer- Court holds that Ford’s sexual ence probative profile whether Ford fit the of someone who commit the act would of sexual intercourse without upon consent person gender. of the same below,
For the reasons set forth I disagree with the above rationale admissibility as to of evidence of sexual preference in this case. 404(a)(1), M.R.Evid., Rule provides: (a)... Evidence of a person’s character or a trait of character is not admissible for the purpose proving conformity action in there- (1) particular occasion, with on a except: Character of accusеd. pertinent Evidence of a trait of character offered by accused, an or prosecution to rebut the same. Character traits pertaining sexuality or sexual preference have specifically been held to fall within the character evidence prohibition 404(a)(1). of Rule (Tex.
InBrewington 1991), v. State App. Grim. 802 S.W.2d Appeals Court of Criminal held Texas that it was clear from the record that the prosecutor sought to introduce testimony that appellant pedophile sоlely was a fixated to prove appellant’s propen sity to children conformity molest and that he acted in therewith. The type testimony “[t]his court held of character prohibited when it is sought prove to be introduced to that a person conformity acted in therewith.” (Tex. *11 Blakeney 1995),
In v. State Ct. App. Blakeney S.W.2d aggravated was convicted of sexual assault on a child. In reversing conviction, the Appeals the Court of of Texas stated that: relevant events adequately
[t]he
[sexual
child]
abuse of
... can be
explained
appellant’s bisexuality/homosexual-
without evidence of
ity
complete
to render a
picture
jury. Appellant’s
whole
for the
preference is, therefore,
admission of his sexual
background con-
Moreover,
evidence,
textual evidence.
introduction
this
in the
present case,
only
could
serve
send the
the message that
all homosexual men are
boys.
also molesters of little
Such an
inference,
unsupported
logic,
evidence
improper
or
is an
basis
introducing
of appellant’s
evidence
preference.
sexual
Because
impermissible
evidence has an
character component, we con-
clude
the trial court abused its
in admitting
discretion
evi-
dence of appellant’s
preference.
sexual
Blakeney,
In
v.Papke
Cohn
Cir.
plaintiff
F.2d
brought
suit against law enforcement officers who
him charges
arrested
on
soliciting homosexual acts. The defense
inquired
plain-
counsel
“By
way,
Cohn,
tiff:
Mr.
you
Cohn,
are
bisexual?”
I agree reasoning with the expressed opinions. in the above-cited is, That 404, M.R.Evid., Rule proscribes the introduction of preference merely evidence of sexual to show that the defendant had a particular character trait and that conformity he acted in with that trait under these circumstances.
In v. Gommenginger 265, 271, 790 State 404(a)(1), M.R.Evid., only we held that Rule prosecu allows the tion to introduce character proof evidence of an accused as that he conformity acted in therewith to rebut defense evidence the ac good cused’s character offered to prove Gommengin the same. As in ger, present case is not one in which opened the defense the door presenting evidence of good Accordingly, defendant’s character. I would hold that the District Court sustaining erred objections to the on cross-examination and closing remarks concerning bisexuality.
However, assuming error, even admission this evidence was agree given the Court overwhelming guilt, evidence of prejudice it rights. Thus, did not Ford’s substantial would affirm conviction. specially concurring.
JUSTICE TRIEWEILER Leaphart’s special premise Justice concurrence is based on preference evidence of sexual is evidence of a character. I person’s heterosexual, disagreе. person homosexual, The fact that a or *12 being character than person’s is no more evidence of that bisexual of character. left-handed is evidence any the evidence is relevant simply is question
material issue.
Furthermore, involve the disagree that those cases which moles- any way to the issue in this case. tation of children are relevant has in conduct which constitutes a engaged Evidence that someone analogous serious criminal offense and is harmful to others is not person’s preference among consenting sexual other evidence of adults. reasons, disagree 404(a)(1), M.R.Evid., these that Rule
For applicable to evidence offered in this case.