State v. Crist

NO. 91-424

IN THE SUPREME COURT OF THE STATE OF MONTANA

1992

STATE OF MONTANA,

Plaintiff and Respondent,

-v5-

STEPHEN DALE CRIST,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

John E. Smith and Marcia M. Jacobson, Public

Defender's Office, Missoula, Montana

For Respondent :

Hon. Marc Racicot, Attorney General, Helena, Montana

Carol Schmidt, Assistant Attorney General, Helena

Robert L. Deschamps, 111, County Attorney,

Missoula, Montana

Submitted on Briefs: April 2, 1992

Decided: June 1 , 1992

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Justice R. C. McDonough delivered the Opinion of the Court.

This is an appeal from the Fourth Judicial District, Missoula

County. Defendant, Stephen Crist (Crist) appeals from a ruling of

the District Court allowing evidence of 'other acts' to be admitted

under Rule 404(b), M.R.Evid. Subsequently, a jury found Crist

guilty of sexually assaulting 9 year old B.L. We reverse.

The issues for our review are:

I. Did the District Court err by admitting 'other acts'

evidence to be presented to the jury through the testimony of Kathy

Lamb?

11. Did the District Court err by denying Crist's request for

psychological evaluation of the complaining witnesses by a

qualified expert of Crist's choosing?

Crist was charged with three counts of sexual assault. In the

first count he was charged for sexual contact without consent for

touching 9 year old B.L. on the chest and in the vaginal area with

his hand. Count two alleged that Crist sexually assaulted B.C.,

Crist's 8 year old son, by fondling his penis. Count three alleged

Crist sexually assaulted J.L., a 14 year old baby sitter, by

fondling her breasts.

The State, pursuant to the requirements of State v. Just

(1979), 184 Mont. 262, 602 P.2d 957, filed a 'Notice of Intent to

Introduce Evidence of Other Acts' seeking to admit alleged

incidents of sexual assault upon Kathy Lamb (Lamb). The notice

provided that the State would seek to introduce evidence of 'other

acts' :

2

for the purpose of proving motive, intent, preparation,

plan, knowledge, absence of mistake or accident, or any

other permissible factor such as consciousness of guilt.

The State further provided that the evidence of 'other actst

expected to be presented consisted of the following:

On or about the fall of 1984 the defendant touched the

breast and legs of Kathy Lamb, d/o/b July 24, 1971, on

approximately twelve different occasions. One time he

showed her a pornographic magazine and on another

occasion he gave her an alcoholic beverage and joked that

he would get her drunk and then "take advantage" of her.

Later the same night he tried to get her to dress in a

nightgown. The touching all occurred when she was in bed

and he entered the bedroom and reached under her covers.

The court allowed the evidence to be introduced and at trial Lamb

testified to each of the prior acts as listed above. However, Lamb

did not recall defendant having touched her breasts but did testify

that on three or four occasions (rather than the 12 described in

the notice) Crist had come into the room where she was sleeping

(with B.L.), put his hand under her covers and rubbed her upper

leg. Crist was only found guilty of the charges involving B.L.

Rule 404(b), M.R.Evid., provides that:

Evidence of other crimes, wrongs or acts is not

admissible to prove the character of a person in order to

show action 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 404(b), M.R.Evid., must be strictly enforced, except where

clearly justified and exceptions to the rule must be carefully

limited. Just, 184 Mont. at 271-272, 602 P.2d at 962, citing State

v. Tiedemann (l96l), 139 Mont. 237, 242-243, 362 P.2d 529, 531. We

have developed four substantive criterion for the admission of

evidence of other acts or crimes. State v. Just (1979), 184 Mont.

262, 602 P.2d 957; State v. Matt (1991), 814 P.2d 521, 48 St. Rep.

614. The so called 'Modified Just Rule' requires that:

1) there is a similarity between the crime charged and

the previous crime, act or wrong;

2) the other crime, act or wrong must not be remote in

time ;

3) the evidence of other acts is not admissible to prove

the character of a person in order to show that he acted

in conformity with such character; but may be admissible

for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or

absence of mistake or accident; and

4) a determination that the probative value of the

evidence is not substantially outweighed by the prejudice

to the defendant.

When reviewing evidentiary rulings, this Court will determine

if the District Court misused or abused its discretion. Steer Inc.

v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

Absent a showing of abuse of discretion, the District Court's

determination will not be overturned. State v. Oman (1985), 218

Mont. 260, 264, 707 P.2d 1117, 1119-20. On review, we will apply

the Just criterion to the facts of the present case

The first requirement of the Modified Just Rule is that there

be a similarity between the crime charged and the prior act. Here

the crime charged was the perpetration of sexual assaults upon an

8, 9 and 14 year old child. In State v. Tecca (1986), 220 Mont.

168, 714 P.2d 136, we held that a prior act need not be identical

to the offense committed but that there must be a sufficient

similarity. In Tecca, the crime charged was the sexual assault of

an 11 year old who was sleeping in the defendant's house. We

determined that evidence of other children who had awakened in

defendant's house to find defendant sitting next to their bed in

his underwear bore sufficient similarity to the crime charged to

uphold its admission. On the basis of Tecca, we refuse to adopt

Cristls argument that a prior act in order to be admissible in a

sexual assault case must involve actual ltouching'.

In State v. Long (1986), 223 Mont. 502, 726 P.2d 1364, we

determined that defendant's having "rubbedo1

the clothed bottom of

a 5 year old was sufficiently similar to the crime charged of

pulling down the pants of two four year old children and rubbing

their vaginas. We noted that sexual abuse of children takes subtle

forms and deferred to the perceptions of the trier of fact to

properly admit the testimony.

In the instant case, Lamb testified that Crist assaulted her

late at night in the same bed in which Crist assaulted B.L. Lamb

testified that Crist rubbed the inside and outside of her thighs in

an attempt to "move his hand up." We conclude that this act is

sufficiently similar to the assault perpetrated on B.L. to uphold

its admission. See also State v. Gilpin (1988), 232 Mont. 56, 756

P.2d 445. We now apply Lamb's testimony, regarding Cristls

touching her, to the remaining Just criterion.

Whether 'other acts1 evidence is too remote is directed to the

discretion of the District Court to determine whether a remoteness

is so great that the proffered evidence has no value. Here, the

acts about which Lamb testified appear to have occurred

approximately four years prior to the act against B.L. We have

refused to establish an arbitrary time limit for admitting prior

acts. Tecca, 220 Mont. at 173; State v. Medina (1990), 245 Mont.

25, 30, 798 P.2d 1032, 1036. In similar cases we have determined

that remoteness does not bar admission where the intervening period

of time is three and one half years, State v. Stroud (1984), 210

Mont. 58, 71, 683 P.2d 459, 466; five years, State v. Eiler (1988),

234 Mont. 38, 48, 762 P.2d 210, 217; and nine years where there has

been a "continuing pattern of similar conduct.'' Tecca, 220 Mont.

at 172.

We conclude that Lamb's testimony is not too remote and that

the District Court acted within its discretion by allowing its

admission. Furthermore, we conclude that Lamb's testimony

regarding Crist's touching her tends to establish Crist's intent to

commit sexual acts with minors, and therefore satisfies the third

prong of the Just test.

The fourth prong of the Just test requires that the probative

value of the evidence is not substantially outweighed by unfair

prejudice to the defendant. We have clarified that unfair

prejudice occurs when the evidence is offered to "horrify, evoke

sympathy or increase a desire to punish and whose probative value

is slight." State v. Paulson (lggl), 817 P.2d 1137, 1144, 48

St.Rep. 838, 841. We again conclude the District Court acted

within its discretion and uphold the admission of Lamb's testimony

regarding Crist's touching her.

The remaining acts to which Lamb testified, we conclude, fail

to reach the requisite standard of sufficient similarity. Showing

Lamb a pornographic magazine, teasing her about getting her drunk

and "taking advantage of her," and attempting to get her to dress

in a nightgown are innuendos too broad to meet the standard of

similarity. We cannot say that these incidents are similar to the

actual assaults with which Crist is charged. The record is void of

Crist having ever acted similarly towards any of the alleged

victims. Not inconsistent with m, we continue to recognize that

sexual abuse of children takes subtle forms. However, the 'other

acts' admitted in the instant case cannot all be properly

characterized as sexual abuse. These acts are, however, evidence

of character. These innuendos would tend to distract the trier of

fact from the main question of what actually happened on the

occasions charged. Therefore, we conclude, with the exception of

Crist's touching Lamb while she was in bed, Lamb's testimony lacks

the requisite similarity to the crime charged and therefore fails

the first prong of the Just test and is inadmissible character

evidence. The District Court is reversed and the case remanded for

a new trial.

Because we reverse, we need not address Cristlsclaim that the

State failed to provide proper notice of which purpose the State

intended to introduce the 'other acts' evidence. However, we

reiterate our previous holding that the purposes listed in Rule

404(b), M.R.Evid., may not be listed in ushotgunllfashion but

instead the notice must provide the specific purpose upon which a

party intends to offer 'other acts' evidence. See State v. Croteau

(1991), 248 Mont. 403, 812 P.2d 1251.

Lastly, we turn to Crist's request to have the District Court

compel a psychological evaluation of B.L. by an expert of his

choosing. Contrary to Crist's contentions, no legal authority

exists in Montana to compel a victim in a sexual assault case to be

examined by a defendant's psychologist. State v. Liddell (1984),

211 Mont. 180, 685 P.2d 918. We addressed this issue in State v.

Gilpin (1988), 232 Mont. 56, 756 P.2d 445, wherein we held:

The defendant cannot force psychological evaluation of a

child victim of sexual assault.

We are not persuaded by Cristlsconstitutional arguments that he is

being denied his right to reciprocal discovery. We decline to hold

that denial of a request to compel a psychological examination of

a child sexual assault victim jeopardizes defendant's

constitutional rights. We hold the District Court did not abuse

its discretion by denying Crist's request to compel psychological

evaluation of B.L.

We Concur:

Chief Justice

Chief Justice J. A. Turnage, dissenting:

I respectfully dissent from the majority opinion reversing the

conviction of Stephen Dale Crist. Crist was found guilty on March

26, 1991, by a Missoula County jury of sexual assault upon a nine-

year-old girl, B.L., committed between November 15, 1989, and

January 31, 1990.

The majority opinion approves the admissibility of prior act

testimony given at the trial by K.L., sister of B.L., that Crist

sexually assaulted her in 1984 when K.L. was thirteen years old.

Crist was not charged with this assault. I agree with the majority

opinion's holding that this testimony of a prior act was admissible

and that the requirements of the "modified Just rule" with relation

to this prior act had been satisfied.

The majority opinion, however, reverses the conviction based

upon testimony of K.L., that she was subjected to three other prior

acts of Crist.

It must be noted that the three other prior acts, which the

majority holds to be inadmissible and reversible error, all

occurred within a short span of time before the prior act of sexual

assault by Crist upon K.L. which the majority held to be admissi-

ble.

The testimony of K.L. relating to these three other prior

acts, taken from the trial transcript of the direct testimony of

K.L., is as follows:

Q. Were there any other incidents involving

the Defendant that you can recall?

A. Yeah, I went over to the house one night,

and I was sitting there and on the floor

watching TV, and I don't remember how this

started, but Steve said something like --

yeah, right in front of Collette he said,

"Yeah, I'm going to --" I'm stumped. I can't

remember.

He goes, "I'm going to get her drunk and take

advantage of her," and Collette was sitting

right there, and they just kind of laughed

about it, and they go, "Well, we're going to

bed now," and I said, "Okay."

And I was just watching TV. So Steve came

back out a few minutes later, and he brought

this nightgown out, and he goes, "Come here,"

and he grabs me and takes me into the bath-

room, and he said, "Put this on,'' and I went,

"No." Then he walked out and he got mad, and

that was the end of it.

Q. Did anything else happen, either before or

after this, involving the Defendant?

A. What do you mean?

Q. Did he ever pick you up at Sentinel High

School or Hellgate High School?

A. Yes

Q. Can you explain to the jury about that

incident?

A. Well, I was at work, and I was at Human

Resources, and I called up because I wanted to

spend the day with [B.L.], my sister. So I

called up, and I said, "Well, Steve, will you

bring me over so I can see [B.L.]?" And he

said, "Sure." He said, "There's something I

want you to do, and I will pay you for it."

And I said, He goes, "Well, I will

meet you at Hellgate." I did [sic],

So he picked me up at Hellgate, and when I got

in the truck, I go, "Well, what was it you

wanted me to do?" He goes, "1'11 just tell

you later," and I go, What, clean the house,

clean dishes, some sewing?" And he goes,

"NO," and I go "Um." So he said, "1'11 tell

you when we get back to the house,1tand I go,

' Okay .I8

I

So when we get back to the house, he was

cleaning out the camper, either to go camping

or just got back, and after that he goes,

"Well, why don't you come in here and sit and

talk to me," and I said, "Okay."

Q. In where?

A. In the camper -- because we never had any

problems before this. We had always gotten

along okay.

Q. So this incident with the camper was

before he touched you?

A. This was before anything started. And so

we were sitting in the camper just talking and

everything. He said, "I want to show you

something," and he said, "1 will be right

back." So he went in the house, came back in

the camper, and he threw a magazine that was

covered up on the table, and he went back in

and he goes, "1'11 be back in a minute." And

so I uncovered it, and it was like a Penthouse

or something like that.

Q. Then what happened?

A. He came back in and he goes, "What do you

think?" [I] go, "What do you mean, what do I

think?" And I went, "I don't think so." So I

went in and kissed my sister and I left.

The majority opinion holds that the testimony of K.L. as to

the three other prior acts fails to reach the requisite standard of

sufficient similarity and is only evidence of Cristls character.

I disagree with this analysis.

The showing of a pornographic magazine to K.L., then a

thirteen-year-old girl, stating that he was Ifgoing to get her

[K.L. ] drunk and take advantage of her" and telling her to take her

clothes off and put on a nightgown are indeed subtle forms of

grooming a child for an act of sexual abuse. The sexual assault to

which K.L. testified Crist subjected her followed very closely

after his three other acts grooming K.L. for the sexual assault

that followed.

If, as the majority opinion holds, the actual sexual assault

upon K.L. is admissible as a prior act of Crist, then certainly

these other three prior acts are also admissible as a grooming of

K.L. for the sexual assault upon her, and cannot be held as not

similar. These acts of grooming of K.L. are not only similar to

the actual sexual assault committed upon her but are a prelude and

inextricably a part of Cristls plan and sexual assault.

Crist cannot complain that the admission of the testimony

concerning the other three prior acts prejudiced him. He was

charged in Count Two with sexual abuse against B.C., an eight-year-

old boy, and the jury found him not guilty on this count. In Count

Three, Crist was charged with sexual assault upon J.S., a fourteen-

year-old girl, and the jury hung on this charge--eight for guilty

and four for innocent. Count Three was thereafter dismissed.

I would affirm the jury conviction and sentence imposed by the

District Court.