STATE v KEYS
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NO. 92-232 IN THE SUPREME COURT OF THE STATE OF MONTANA 1993 STATE OF MONTANA, Plaintiff and Respondent, v. MILTON LEE KEYS, Defendant APPEAL FROM: and Appellant District Court of the Eighth Judicial In and for the County of Cascade, The Honorable John M. McCarvel, Judge District, presiding. COUNSEL OF RECORD: For Appellant: Edmund Helena, For F. Sheehy, Montana Jr., & Sheehy, Respondent: Hon. Marc Racicot, Schunk, Assistant Patrick Montana; Attorney, Steven County Attorney, Attorney General, George Attorney General, Helena, L. Paul, Cascade County M. Hudspeth, Deputy Great Falls, Montana Submitted Filed: Cannon on Briefs: November May 18, Decided: ..~.iy;,7& .i,'. 19, 1993 1992 Justice Terry N. Trieweiler Defendant verdict of Milton Lee Eighth the convicting delivered Judicial him of the crime pursuant to sentenced appeals from District of sexual Keys to 15 years years 5 45-5-503, Keys the opinion MCA. of the Court. the Court, Cascade intercourse On February and County, without 4, in the Montana State judgment consent, 1992, the with Prison, court three suspended. We reverse. The following issues 1. District admitted Did the evidence misconduct of are presented Court a by Keys in abuse prior, the on appeal: its discretion uncharged incident for trial when intercourse sexual of it sexual without consent? 2. prior his Did the misconduct right to opportunity heard Court's evidence a fair during and to minimize testimony 3. District about opening impartial the impact Keys' Was the evidence inherently refusal incredible allow statements trial reference deprive because of the evidence to Keys of Keys before had no the jury misconduct? presented and to by the State insufficient to during support the trial the guilty verdict? On August offense violation of 3, 1990, sexual intercourse of ยง 45-5-503, Keys had knowingly Keys was charged without MCA. At trial, engaged in sexual 2 by information consent, there intercourse a with felony, was no dispute with the in that the victim, N.B. The sole issue in dispute was whether or not N.B. had consented. On the the time,, evening met bartender, Keys of July Keys at 31, TJ's 1990, Lounge this, who was 18 years Great in who was an acquaintance overheard N.B., Falls. of hers, he offered to left the Keys stopped for give N.B. asked a ride her a old home. ride at the When and she accepted. The toward two of N.B.'s Tenth home. Avenue South, thought Keys sexual advances across the have would sexual to ended, N.B. a nearby resume her and, to house to where car but to the get she N.B. headed off of stated that she continued to make Keys climbed testimony, forced her N.B.'s testified of turning he instead that was very Keys. out and Thereafter, car stop vehicle after N.B. objections. but was able Keys' the N.B. anything in kissing according incident do bar driving intercourse. the unable and began over seat throughout them notified car the struggled confining Finally, the she and she was when the assault and immediately police that to went she had to been raped. While en route dispatched to near the given of later identified in the claimed meet investigate crime the to scene car. he was the which suspect's looking N.B., alleged resembled vehicle. as Keys, When the with for the for asked his crime wallet 3 police officer which what parked she had been observed something Keys who was saw a vehicle description The officer searching officer the the driver, on the ground and he was doing, he he had lost when he dropped off a male friend not yet made mention Keys later because he lied when approached he might know the age of consent gathering and took with alone the him hair, another police his words, left videotaped interview, time "I of that the he had lied was hoping nothing Keys did not deny having she had willingly jury which three found consent, years and the suspended. The dispositive Court properly misconduct It her didn't While court the At occasions with imposed of because, think N.B., sexual a 15-year Keys trial, in that I had tell work out that crime the and a male were with them way." but The case was tried of at of Keys again told [N.B.] intercourse participated. Keys guilty the purpose me . . . and she would happened. that without for let these him. and had not been incident. on both I would really TJ's two females alleged somebody to back up a story that identified Keys he and N.B. had been when they officers that that not Keys fit placed and blood. officer rape, officer that for In a later investigating acknowledged saliva, had and did the officer and female in the car. the confirming to the hospital of his male rape him to the house where N.B. Keys told at a possible with assailant, day Keys was taken another After in Montana. samples hospital the officer by the police charged be of the alleged The next Although she was investigating he was afraid under arrest spot. that admitted the description at this claimed before intercourse sentence, with Keys appeals. issue admitted in this evidence appeal about by Keys. 4 is whether a prior incident the District of sexual a Prior to intent State's acts," trial, to to prove opposition 1992, evidence Keys Keys' court testified times. As would earlier out turned leaving with of the exposed. with Be then P.B. reacted Keys apologized it occurred actions the having done Keys left and the it consented, and did M.R.Evid. The State commit "I alone. testified with him told and said P.B. several P.B. that that got Keys outside, Keys penis your socks off." call the the trial, fuck and he his police, when Keys incident, had described. rude," who had met to to this The Falls. down During about 27, testified pants want on January he admitted Be characterized that his he was stupid for this. because to her basically that relevant She his in Great and when they of P.B., way P.B. argues evidence told in and when she threatened and as "being of her, a brief P.B., Keys outside. zipper twice stand her or be admissible. danced Flamingo, the filed woman, and of wrongs, but would Lounge Keys the ahead angrily, on the that bar Keys evidence with notice crimes, evidence, Flamingo talked was intent. by another the speak around was at she to walked this with "other of this that Keys of and of testimony she like evidence motive ruled that served introduction consisted a month State offer to the the the because sexual it the court erred in allowing had no relevance not meet the counters by was highly acts against to issue of of this whether requirements of Rule arguing the evidence probative nonconsenting 5 the admission that of Keys' motive female N.B. 404(b), was and intent victims. The standard district review court abused its P.2d 1052; 833 442, for The district of evidentiary discretion. rulings (1992), &ZteV.Ctit Statev. Sadowski (1991), 247 Mont. court has broad discretion or not evidence is relevant and admissible, an abuse of this discretion, the court's 537. overturned. In (b) t Montana, the ("prior acts M.R.Evid., 253 Mont. 63, to determine and absent the 805 P.2d whether a showing determination will of not be P.2d at 1054. 833 or wrongs, 404 &St, is whether admissibility acts which of evidence evidence") is of other controlled crimes, by Rule provides: 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, knowledge, plan, identity, or absence of mistake or accident. We have stated that strictly enforced the except and exceptions to P.2d at 1054; %ZteV..hSt 962. In order character criteria Mont. rule to the for 136, the admission 814 P.2d 52. 184 Mont. that prior Court This developed 1. crime, act, acts has in rule, is a similarity previous Rule is 404(b) limited. &i-t, evidence between or wrong: 6 833 602 P.2d 957, is four not used as substantive State v. Matt (1991) , 249 is a modification 602 P.2d at 961, Just, be justified, outlined which must clearly 262, 271-72, of such evidence. originally There of must be carefully (1979), this rule where a departure rule insure evidence, general the crime requires charged of the that: and the 2. The other crime, 3. The evidence act, or wrong must not is not admissible show that be he acted remote in to prove the time; character of with of character; such as proof of knowledge, not in motive, acts order but to may be admissible or absence A determination substantially of that the outweighed for conformity purposes, such preparation, mistake or probative by the in other intent, opportunity, identity, 4. is a person other plan, accident: value danger of and the of prejudice addition to satisfying offering such evidence to the defendant. In Matt, we also criteria for comply Just. the this instance, the The defendant the jury at instructed point appropriate the the requirements we first received that the the evidence; of its final set the charge trial court on the in do not were and the must forth parties precautions notice: introduction in out these evidence originally procedural proper jury in a party procedural that dispute that admissibility, with In clarified taken. admonished trial court purpose of the instance of evidence. The only sexual exposure question misconduct, and intercourse that and that the the this which assault, with contends in N.B. the was is State whether goes a single characterized admissible occurred evidence requirements case to prove without her to Keys' prove of the modified Just as that consent. motive rule, indecent the The sexual State and intent, as announced in Matt, have with P.B., been which satisfies the we conclude which only requirement met requirements this and for that Although occurred that is fact satisfied. the a month that is the only the offered admissibility incident alleged crime against not crime, in time, Just criteria fails other is State sufficiently consent were argues because directed Gilpin both 232 proposition charged that to meet acts evidence been charge were Mont. which of in time to the is not necessary " the that State State v. 449, prior presents differences Admittedly, been meets quite in dissimilar from cases similarity Sadowski, 805 P.2d at a deputy between several the held 537 for acts examples the and the of prior the we have actual 8 charged held even crime suicide similar even though the standard (apparent sufficiently admissible and conduct. evidence has been held nature, Citing 445, the is without in victims. P.2d weigh incident intercourse and sexual 756 which exposure female 64, factors sexual illegal 56, be identical, substantial prior the the the The mere respect. near indecent nonconsenting "[i]t offense the acts toward (1988), that to similar to overcome alleged modified occurred incident be remote evidence P.B. sufficient the the every the admissibility. The not act one of in with that before prior the that we concede being attempt to deliberate crime that though there and prior the have acts the acts have charged. See, e.g., and pointing a gun homicide); State v.McKnight (1991), similar to (1990) sexual admissible in from victim While whether that conduct exposure incident, he left occurred completely probative (intimidation assault against a determining determination of consented. to from or relevant Keys. The two an issue that in before the the indecent to determining acts fact what are incidents conclude on issue Keys and the circumstances, reasonably is depends prove We do not find is similar we cannot similarity case the only by an apology and when conduct so committed, that one is of the other. Crist, we held that pornographic a nightgown abuse. for in surrounding that 195 lot). in this N.B. different victims, sexual some relevance P.B. alone, between grounds) to rule followed sex crimes state v. Wurtz (1981), that N.B. uncharged trial); has We reiterate was whether girl the held on other similar is no rigid similar, dispute. In auto assault State v. Gambrel consent): 1071 (prior homicide in a parking there sufficiently and 803 P.2d deliberate made different that 84, without 226, 636 P.2d 246 (overruled threats jury 457, 820 P.2d 1279 (sexual intercourse 246 Mont. I Mont. 250 Mont. evidence magazines were not of the defendant and attempting sufficiently similar showing a young to get her to a charge to dress of sexual We concluded: 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. 9 in &St. 833 In drawn his P.2d at this case, from this to the find find of in fact similarity exposure that would act trier enough indecent we also evidence propensity distract 1055. the tend a to certain from innuendos go to way the between the is in probative episode Keys' and issue acts could and therefore, question. We do not conclude the be character could, to of that that issue of the N.B.'s consent. The State Keys' our motive holding in if is ultimately not argues determining that of essence an argument being tried precisely his sexually because what prior in the whether victims 404(b), not was aggressive that he acts Keys is evidence of crime poor may not purpose or the is the for State this which W. Strong, McCormick on Evidence 10 798 (4th ed. in he was This for. 1992). of is [T]he prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is introduced for some purpose other than to suggest that because the defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial. John that probative character. be used not consent However, the acts is case, with behavior. committed prior incident concerned under purpose this exposure a person for that In to prove purposes allowable dispute. Keys permissible further indecent was offered M.R.Evid., an does issue evidence both reciting evidence an the are Rule merely the that which and hfatt But sufficient purpose contends and intent evidence. of next is Furthermore, it determinative intent, is is in factor and whether dispositive intended intended this whether have that is tried in goes being this to Keys' explicitly the it criteria, the and the is not modified District testify evidence the Inasmuch as use abused its we are reversing admission of clearly even this State to the if he criminal contends question for prior the acts under the the being evidence evidence the first is and third remaining reasons discretion with which M.R.Evid. the incident the of discuss For and the victim's Keys purpose inadmissible rule. Just the consent, relevant relevant to is intercourse, N.B., which 404(b), necessary Court about is is committed. her for this by Rule which consented. not only character, Because under The it of with N.B. are motive act was purposes presented prohibited the and without if the case. to intercourse be irrelevant We conclude or Rather, case. forcibly would evidence intent a crime sexual to do this intent Keys' she consented of to not requirement stated, when it Keys and remand we hold allowed this case that P.B. for to a new trial. allowing the whether Keys' was the evidence could not the deprived prior the acts a fair because maintains contends the State's that the be discussed first issue evidence, and impartial that judgment evidence evidence during not question the and of trial is should opening because be discussed. Keys not of on be insufficient presented 13 by the statements entered in to convict State during his need favor him. the He trial is so inherently incredible that it is unworthy of belief. We disagree. Keys I argument size of the consensual forced a two of by physical shortly testimony. sexual weighed Keys' well victim, during intercourse the the heard alleged without is consent. that 810 P.2d 751; Statev.French (1988), at aware that various stages of accusation, and it was noted there was any mention a possible If the trier the that that (1991), 364, the police were, the willingly. It of of the sexual 248 Mont. 183, 760 P.2d 86. to police because one of these her that testimony Keys had lied investigation who were and then heard and conviction 233 Mont. supported testimony uncorroborated StUteV. hitcher gave corroborated occurred for to details. witnesses her consent, sufficient car, N.B. testimony, which it the the not have been certain N.B.'s that of where of other and weighed testimony alone, was also trial rape, given Keys also points of N.B.'s in Montana without The jury to do. not recall occurred standing could consisted conflicting settled but N.B. and the testimony The jury intercourse size or could after that, the she was unwilling evidence evidence assertion and was possible, statements The State's on his involved instances nondefinitive is parties to do anything her premised intercourse number with is he feared lies in fact, occurred officers a rape before investigating rape. there is conflicting of fact to decide evidence, it is within who to believe. 12 the province of State v. Medina (1990) , 245 Mont. 239 Mont. 453, 781 P.2d 281). 1038 (quoting 25, 34, 798 P.2d 1032, not only other the testimony witnesses resolved In this of N.B. evidence, the conflict in favor applicable standard The sufficiency instance, and Keys, and physical of the evidence state after but also the v. &0wlt (1989), considering the testimony jury, by its of verdict, of the State. of review for determining the is [Wlhether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime [Emphasis added.] beyond a reasonable doubt. Medina , 798 P.2d at emphasize some of remember, the resolution of the that 1037. was lack there arguments the jury about of the However, issue do N.B. ample in isolate and could not clearly evidence to justify favor of N.B. and to find conclude that Keys' of the car or N.B.'s we to We cannot no rational Nor that it consent. size Keys tries that before credibility decision. incredible particulars had burden of showing that this Although trier find the it is unworthy upon our conclusion could meet the have reached evidence so inherently that District of belief. based of fact testimony improperly admitted the evidence of sexual misconduct, and this case is of Keys' prior, the judgment remanded for of the District a new trial. the Court uncharged incident Court is vacated We concur: Chief Justice Justices 14 Justice Fred J. Weber dissents The majority the claimed additional opinion sexual facts The should that the bar the defendant from himself friends, the would give her a ride would go on a date with was offended by her home. to take including which stating, N.B. extensive sexual N.B. intercourse were He then N.B. he by the At the holding car. a sock in her 15 That hand, and tonight" detailing to the act of photographic on the the act. home of a friend on his car advances, forcible trial bruises had been caused during he the sexual very the she him away and asked Without to defendant. showing stopped if thought to make love not." testified in an open garage appeared home N.B. made various "NO, we are ran from the car to a nearby N.B. a ride asked N.B. by pushing know we are going introduced knees which be working that "I responded, testimony, exhibits N.B.'s her she had and indicated Defendant him roommate and to obtain him and when she refused, her and she reacted The At the at the bar assuming In the car defendant commenced kissing male 12:30 a.m. interrupted rejection. N.B., fairgrounds. N.B.'s attempted defendant home. victim, and her roommate's to N.B. N.B. believe the evidence. at the Great Falls stranded I old year Bar at approximately introduced regarding consent. roommate, While N.B. unsuccessfully other information in evaluating eighteen the fair inadvertently a ride. limited without she, her female of them went to TJ's boyfriend forth be considered of companion had attended three sets intercourse testimony established as follows: After inside of the act, who happened to friend terrified, testified crying and frantically rape. The testimony by the police medical doctor. her after and back in with to death The majority when it admitted Modified condition parents of the was confirmed the the incident, emergency room N.B. moved out of because she testified alone. that the District evidence such evidence, Just complained including her to live concludes In considering entire and others, In addition, she was scared P.B. as to her hysterical officers apartment discretion She immediately hysterical: it of the Court prior is important abused incident to consider its with the Rule: We therefore now adopt the following as the Modified Just Rule which sets forth the basis for the admission of evidence of other crimes, wrongs or acts as referred to and described in Rules 404(b) and 403, M.R.Evid.: (1) The other crimes, wrongs or acts must be similar. (2) The other crimes, wrongs or acts must not be remote in time. (3) The 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 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. (4) Although relevant, evidence may be excluded if its probative is value substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of undue delay, waste of time, or needless presentation of cumulative evidence. State v. Modified which pointed Matt Just (1991), Rule contains is separately out 249 Mont. in cited State v. 136, 142, the essential in the majority Sadowski 16 (1991), 814 P.Zd 52, elements 56. The of Rule 404(b), opinion. 247 Mont. In addition, 63, as 805 P.2d 537, the Modified than exclusory Just Rule.must rule. be classed The Sadowski Court as an inclusory rather stated: As with its federal counterpart, the Montana rule adopts an inclusionary rather than exclusionary approach, that is, use of the word "may" indicates that the second sentence actually lists theories of relevant examples rather than exceptions . . . Sadowski, 247 Mont. The majority at 70, 805 P.2d at 541. opinion concludes that Modified Just Rule which has been satisfied requires that the prior incident I the other agree do evaluation with with act P.B. occurred that conclusion this Court Just has concluded where acts cases cited by the majority, felony 136, sexual defendant's inserting other stated that finger the other that year in her vagina. in remaining notes crime, of evidence evidence on a charge complaining though to the 220 Mont. assault This Court of the witness and that identical as follows: 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 girls and occurred in the Tecca home. . . . Both R.T. and L.C. testified that they had been awakened in the middle of the night to find defendant 17 168, included concluded not in the admission In addition sexual old wrong or a number of cases v. Tecca (1986), The claimed were admissible the the Rule allows admission the eleven Here the to the crime. with dissimilar. State the which Rule. are quite assault. touching his acts allowed not The majority of evidence 714 P.2d a month prior of the (2), in time. but Just Rule requires must be "similar." which only element is paragraph acts must not be remote of the Modified The Modified only the and next to the bed dressed incidents bear sufficient offense to uphold their Tecca -I 220 Mont. offense at all sitting on at in the underwear. 172, Yet of to uphold conclusion that at conduct two this similarity in his similarity admission. 714 P.2d the bed only Note there girls of Tecca of the Modified the majority older was is was no only there Clearly an dressed concluded (1) that consisted young admission. paragraph These charged 138. which Court underwear. to the in his sufficient authority Just man for Rule had the been satisfied. In analyzing believe the issue, this court is a misstatement was whether or not committed the of set in forth prove offense the incidents in the as P.B. the to have morning desire, sexual being consider place testified to Just only issue issue. before The defendant intercourse issue knowingly without that sexual the Rule, the before or purposely consent. As of after the hours and after were Just and possible which intercourse case. intent, with he met they admitted present intercourse the acts defendant defendant The act charged The in Rule. parties part the consent. a bar with him. took place P.B. indicated of the conduct Both at bar conduct with to sufficiently the his on the without 18 the left that P.B. is may be admissible Modified (1) in the with evidence whether paragraph that clear that meet took I emphasize similar now early the the as follows: intent. We will to of sexual Modified or motive similar stated We reiterate that in this case the jury was whether N.B. consented. the I this defendant is principal There clearly case, was no consent on the the defendant acts could similarity have that and the to Modified meet Just sexual the to 868, and other with the Rule has been Paragraph evidence motive or be be evidence meets the Paragraph of misleading. unfair for of factors the a failure of does (1989), not 237 Mont. cited. paragraph of Just other (2) clearly could a of the Modified with or (3) the Just Modified if substantial prejudice that had some influence upon the unfair confusion or while jury, of the there issues 19 Modified prejudice of nothing or misleading of sexual that the Rule. that the outweighs issues, certainly is of was not Just provides evidence proof have conclude Rule the by a finder to I confusion as clearly intent of the that such P.B. necessary. of paragraph excluded states be considered motive if Rule purposes conduct consent I conclude prejudice, that Randall therein that sufficient (1) the of v. Modified of test (4) may be danger It without evidence the evidence intercourse, one suggest out if and the paragraph point State Defendant's to by her. to of part consent all any majority of intent. fact without circumstances, cases admissible consented intercourse on the met. (3) may as an intention further See 772 P.2d and statements surrounding meet admissibility. exposure themselves, I would evidence sexual requirements We agree Just the victims the Rule. offered preclude to be construed to committed, 271, P.B.- I conclude necessary. the of Such evidence made. of part in the or is may have the nature of the jury. of I conclude Modified that its concluding the that it is determinative part the of question being I would Chief Justice the foregoing the test of paragraph of prior (4) of the with that fact was to with in this concludes analysis. which it is the or not intercourse conclusion not is requirement whether sexual majority's is that The determine case again or motive committed the opinion intent It case. or purposely act majority defendant's I disagree the the in this trier knowingly consent. evidence not I disagree of defendant without the analysis, factor intent. on the meets Rule. emphasizes victim's evidence Just In the the relevant that to the tried. affirm the conviction J. A. Turnage dissent. of and Justice 20 the defendant. John C n concur in
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