*1
MONTANA,
Respondent,
v. MICKEY
OF
STATE
Plaintiff
and
Appellant.
HANSEN,
GENE
Defendant
No. 14861.
Dec.
1979.
Submitted
April
Decided
Daley, argued, Kalispell, Sherlock Stephen J. defendant and appellant. Gen., Helena, Larson,
Mike Richard Asst. Greely, Atty. Atty. Gen., Helena, Intern, argued, Paul Student argued, Cooley, William Thompson, Deputy Shaun R. Douglas, County Atty., and argued, Libby, plaintiff respondent. County Atty., MR. SHEEHY delivered Court. opinion JUSTICE a conviction entered from felony Gene Mickey appeals Court, on a of sexual inter- the District Missoula County, charge without consent. course case, Birdsall, witness in this worked at
Carol the complaining Eureka, on at about 1:00 a. m. cafe in Montana. After work she she went a bar next the cafe. There September talked with defendant Hansen and friend Hansen’s. The group had a drink and discussed the some possibility getting from Hansen. marijuana closed, Hansen, the bar
After his friend and Birdsall left the bar out of town in truck. proceeded Hansen’s They planned smoke some drove to a outside marijuana. group campground Eureka, and smoked the Hansen’s friend parked marijuana. passed out at this point. *3 to conflicts as what next. stated Hansen testimony happened
he then returned car Birdsall her in Eureka unmolested. Birdsall home, testified that she asked to take her but he Hansen instead drove her to an isolated of the mountains. Birdsall stated part Hansen then became and tried fondle her. When she suggestive resisted, Hansen told her that she could have intercourse allegedly with him or walk home. Birdsall told Hansen she would walk home but he refused to allow her and told her he would wake his friend and both of them would her. rape then out of the truck got
Birdsall testified that she and Hansen did, she Hansen allegedly and she started walk As away. testified they feP Birdsall ground. her and grabbed they wrist, her removed her thumb against twisted Hansen struggled, with her. and forced intercourse some of her clothing truck and act, back into the stated got Hansen After the Birdsall told that Hansen stated back Eureka. group drove to Eureka. back driving the incident had to know about her nobody trial, a to exclude Prior Hansen filed motion in limine seeking of his in District evidence involvement crimes. The Court any trial, testified that denied the motion. At the Hansen Gayle Yeager had two her and one-half earlier. raped approximately years from stated she knew Hansen and ride home Yeager accepted home, him after the bars closed. Instead of her taking Yeager testified Hansen drove her to an isolated area outside Eureka. her, When made toward resisted advances Hansen Yeager her, twisted her thumb her wrist and her. grabbed against raped toward town and told not to Hansen then drove back her Yeager on Hansen was convicted of assault report rape. aggravated from this earlier incident. charges stemming the District Court is whether The sole issue raised by appeal sexual of the earlier in the admission of evidence erred allowing assault. not admissible to show of other crimes is
Evidence generally v. crime State charged. a defendant committed particular 960; (1977), (1979), v. LaVe State 184 Mont. (1975), 97, 100; 401, 571 v. Heine 169 Mont. P.2d State 25, 27, State v. P.2d Jensen however, 233, 238, a notable excep There is case. We state relies on in this rule which the tion to the general as follows: stated the exception Just, supra, to determine the admissibility a four element test emerges “There such as crimes or acts in criminal prosecutions of evidence other the one here . . . The four factors are: acts;
“1. of crimes or similarity time; “2. nearness in and scheme, or system;
“3.
establish a common
tendency
*4
“4. the
value of the evidence is not
probative
out-
substantially
961,
the
the defendant.”
In
applying
each
exception,
case must rest
its own
upon
(1960)
circumstances. State v.
546,
Merritt
549-50,
683,
Further,
P.2d
685.
“ ‘The
rule should be
general
enforced in all cases where
strictly
applicable, because of the
effect and
of such
prejudicial
injustice
evidence, and should not be
from
under conditions
departed
except
which
such a
clearly justify
should be
departure.
exceptions
limited, and their
carefully
number and
not increased.’
scope
State
237, 242-43,
v.
Tiedemann
362 P.2d
“Accord,
Sauter,
State v.
Thus, the rule admission of concerning evidence of other crimes and the exception rule are set out in clearly Montana. The problem presented by case is the rule to the facts applying here.
Before case, applying above test to the instant it should be noted that the case sets out procedural to follow guidelines Just in cases of 962-964, this nature. Just, 36 St.Rep. however, 1656-58. The procedures, do not have retroactive effect. Just, Since this case was tried decision, before the failure follow the is not procedures er ror.
The first element of the to the other crimes admission rule to be considered is the of the similarity prior crime charged crime. Definite similarities exist here. Each incident began in a Lincoln bar. Both victims County left the bar with Hansen in hours. Hansen drove both women into the moun- early morning tains and made advances toward them. When allegedly Birdsall resisted, them, thumbs Yeager grabbed twisted their also their wrists and forced intercourse them. Hansen against both women back to town and told them not report drove rape. are, however, between the crimes. Hansen
There differences well, until the evening but did meet Birdsall Yeager knew fairly left the bar alone. and Hansen alleged rape. Yeager a friend of left the bar Hansen’s. accompanied by and Hansen *5 96
Hansen threatened Birdsall with multiple He rape. made no such threat to Yeager.
Prior Montana cases of the speaking degree similarity this element the other crimes in necessary satisfy exception clude and Merritt. we found sufficient similar Just, In Just, Jensen sexual, where the acts were ity prior all involved the same vic they tim and the defendant at home with always be alone arranged 961, the victim before the crime. at 36 602 P.2d committing at 1653-54. In the court also held the acts suffi St.Rep. Jensen, similar. did the The Court so the fact that defendant ciently despite was with lewd acts on a child and there was no charged any proof of the women who testified to assaults the de sexual previous by 239, fendant were under 16. 153 at P.2d Jensen, supra, Mont. 455 Merritt, at the 634. In defendant was In the charged forgery. to a charged, crime the defendant another’s name allegedly signed act, In document. the defendant obtained purportedly aon document The held the acts too signature Court trickery. Merritt, at dissimilar qualify supra, exception. 550-51, at 357 P.2d have past shows that in we cases summary
The above No set standard ap on its facts. particular each case considered other jurisdictions law from from cases. Case emerge pears crimes reveals between alleged that when the similarities holds in the crime of events common than a sequence more nothing come enough not and distinctive the acts are usual charged, (5th v. Myers United States of the exception. within purview 847, 1036, 1045-1048, 99 439 1977), den. U.S. cert. 550 F.2d Cir. 149; (1969), 79 147, Cal.Rptr. v. Weathers 58 L.Ed.2d People S.Ct. (1968), 232; 131-32, 70 v. Haston 127, Cal.App.2d People 91, 419, 427-428, 99-100. 444 P.2d Cal.2d Cal.Rptr. as requirement this the rationale for Court explained California be which distinctive . . common features appear follows: “. those who all commit it is that when considered . . . lose this quality the same script follow usually approximately of scheme type Weather, 79 Cal.Rptr. supra, use props.” similar per California Court We find the rationale expressed by Further, of an the application cases of this nature involve suasive. on the sound rule is based to the other crimes rule. That exception for the should be jeopardy that a only placed principle person to the rule acts. prior wrongful Any crime charged, defined. construed and well Just, must be strictly v. State Tiedemann 242-43, taken by 531. Adopting position a move toward and in other is the commentators jurisdictions *6 We the position. that therefore achieving goal. adopt standard, not sufficiently here is the other crime Under the other to of the exception first element to satisfy similar of bar follow pattern Numerous rapes admission rule. crimes the vic vehicle by into the offender’s voluntary entry room pickup, advances, area, forcible in tim, resistance to a remote driving that qualities no distinctive events has sequence tercourse. The the events thus bringing other the acts from rapes distinguish ad other crimes element of the of the similarity within the purview mission rule exception. near considered is the be second element of the exception
The crime. The question act to the charged ness in time of the prior for the matter a discretionary in time is generally remoteness 341, 342, (1958), 332 P.2d 134 Mont. State v. Nicks District Court. out, is not an uncontrolled it also “. . . However 904. Nicks points it should too remote the matter and if this court regards discretion abuse of discre has been an that there ruling have no in hesitancy 342, at 332 P.2d tion.” 134 Mont. two months and crimes here are six
The
separated by
years,
act and
one week.
a three
interval between
Although
prior
year
remote,
limit of
too
other
being
crime is close
charged
been held ad
acts
three
to the crime have
occurring
years prior
in
the defendant constitutes a
missible when the acts engaged
961,
at
36
course of conduct.
602 P.2d
supra,
continuing
Just,
1654;
31-32,
Heine,
at
544 P.2d at
at
supra,
(Mr.
153
concurring);
specially
Jensen,
Castles
Justice
239,
at
Mont.
ment of the exception to tend to establish a other crimes leg exception requires scheme, what the issue of or We addressed common plan system. scheme, or in State v. Sauter a common system constitutes Sauter, the defendant and P.2d 731. In *7 to a bar. left drive a woman in The group a companion picked up road, the woman. on the both men raped to another town. Once been trial showed he had introduced at the defendant’s Evidence who had a a month earlier picked up with a of four men group to her a ride home. bar with her give woman in a bar and left the Instead, an location and raped woman to isolated drove the they of the first inadmissible held the evidence rape her. The Court acts, no in bar or rape, originating whether rape “Sexual stating, in auto and consummated the urge, room powered by pickups, to have much mobiles, and age too common in day are entirely Sauter, or plan.” a scheme value in showing systematic evidentiary at 732. at facts in case here. The a serious blow the State’s Sauter deals case. If Sauter similar to the instant anything, are very Sauter scheme because it in- of a or plan a indication stronger presents than single rapes, less common party volves a multiple-party rape, of each other. occurred within a month and the rapes crime. In on the bar alone previous left the and Yeager Hansen the bar in here, left and Birdsall Hansen the crime charged towas or pick system third If Hansen’s of a party. company and then bars, locations to isolated drive them victims in his up the bar with them, leave allow a third party did he why rape not bringing does include obviously of scheme him? That type could be Hansen argued It witness rape. someone along testified that Birdsall. rape both planned his companion That type rape. her with multiple-party threatened crime of the prior with the evidence is also inconsistent scheme short, in Hansen conduct engaged by In testified Yeager. a common method does not establish
on two occasions simply these there- conduct the crime charged. in committing of operation to the admission of the exception not this element fore does satisfy rule. of other crimes of the final to the
Consideration element other crimes rule a determination of whether the requires pro bative value of the evidence is substantially outweighed by prej to the defendant. in cases such as this manifests udice Prejudice First, subjects itself in three forms. of other offenses defend proof ant a crime defendant defend surprise by requiring against LaVe, at charged. supra, St.Rep. Second, value of the overestimate the jury might probative and assume that the defendant has com evidence because merely before, mitted crimes he is to be the crime likely guilty charged. (1974). 87 Harvard L.Rev. 1076. Recent Cases: Evidence Third, that the defendant is a the evidence indicate may jury P.2d at candidate for proper Just, supra, punishment. at 87 Harvard L.Rev.
The first manifestation of prejudice does not exist in this case. The State notified Hansen three months before trial that Yeager would The State also testify. provided Hansen with a copy Yeager’s statement to the made after police the first incident. Hansen cannot claim or prejudice under surprise these facts.
The other indications of are more prejudice difficult to measure. instructions Jury the limited explaining for which the purpose jury is to consider evidence of other crimes reduce the prejudicial effect of the evidence. (1979). 2 Weinstein’s Evidence 404-70 A cau- § tionary instruction was given here thus reducing ef- prejudicial However, fect of the indicates, evidence. as the above analysis acts involved here were not sufficiently similar or near in time to indicate the commission of the first act had value in probative if determining Hansen committed the charged crime. Neither does scheme, commission of the acts establish common or The
system. introduction of the first act therefore has little very value in probative fact in issue establishing any in Hansen’s trial. hand, On the other the introduction of the evidence certainly worked to prejudice Hansen’s case. As we stated in “. . . acts, Evidence of other of the nature especially testified to in this case, will invariably result in to the defendant to a prejudice cer- tain degree.” 602 P.2d at
Given the lack of value of the evidence of the probative other crime here and the amount of inherent in prejudice showing offense, a defendant has committed sex we conclude the effect of such evidence here prejudicial introducing substantially its value. outweighs probative facts here fail this case within the bring
admission of other crimes We the conviction rule. therefore reverse defendant and remand the case the District Court retrial.
MR. CHIEF HASWELL and DALY and JUSTICE JUSTICES HARRISON concur.
MR. SHEA JUSTICE concurring: with the majority do not agree the result but I I agree *9 case of State v. a dissent in the As I stated in analysis. established a need is first unless crimes, court should the trial of other admission of evidence to whether or discretion as its exercising no further proceed first need was admitted. No should not be to admit the evidencer-lt reason, the case. here, would reverse 'that I and for established would of this kind is so I inherently prejudicial, Since evidence kind, court, in evidence of this first that a trial require admitting what factors it considered enter a order detailing lengthy precisely and its reasons for the evidence. This is the only way admitting an court can ever be assured that the factors parties appellate and that the decision to admit the involved were carefully weighed was not made. evidence lightly
Thus, no need been demonstrated in the record for use having evidence, does not such I would reverse the conviction. My position or not there was an whether require analysis compliance the four test as discussed the court. point