No. 91-559 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, D 

v. 

AUG2 4 1992 

JOSEPH ALLEN HOWELL, CLERK fL2 OF SVPREidE &%!d COURT. . STATE OF IM3lUTANA 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Ravalli, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James A. Haynes, Attorney at Law, 

Hamilton, Montana 

For Respondent: 

2. 

The Honorable Marc Racicot, Attorney General, 

Cregg W. Coughlin, Assistant Attorney General, 

Helena, Montana; George H. Corn, Ravalli 

County Attorney, Hamilton, Montana 

Submitted on Briefs: April 2, 1992 

Filed: 

Clerk 
Justice Terry N. Trieweiler delivered the opinion of the Court. 

Defendant appeals from his conviction on May 6, 1991, of the 

crimes of sexual intercourse without consent, sexual assault, and 

indecent exposure committed upon T.S., a nine-year-old girl, 

between December 25, 1990, and February 7, 1991. Following a jury 

trial in the Fourth Judicial District Court of Ravalli County, 

defendant was sentenced to a total of 60 years in the Montana State 

Prison without benefit of parole. An amended judgment was entered 

on November 20, 1991. The District Court denied defendant's motion 

for a new trial. The Defendant appeals. We affirm. 

The issues are: 

1. Did the District Court erroneously instruct the jury that 

it could consider evidence of defendant's other crimes as proof of 

a 'lcontinuous pattern of conductv1 under Rule 404(b), M.R.Evid.? 

2. Did the District Court err by excluding the victim's past 

sexual history under the rape shield statute, 5 45-5-511, MCA? 

3. Did the District Court err in instructing the jury that 

the charges were distinct offenses to be determined separately, 

rather than as lesser included offenses? 

4. Does sufficient evidence support the jury verdict? 

The State's amended information charged defendant with 

committing the offenses of which he was convicted on or between 

December 25, 1990, and February 7, 1991. The defendant filed a 

partial alibi defense notice because he was in California visiting 

his mother from the week before Christmas until the first week of 

January 1991. 
On April 16, 1991, the State filed a notice of intent to 

introduce evidence of other crimes, wrongs or acts in order to 

support proof "on the issue of the Defendant's identity, intent, 

state of mind, and that the Defendant's acts were consistent with 

continuous conduct, a common scheme, plan, or ~ystern.~' The notice 

stated its intent to introduce two prior convictions involving 

female minors for sexual assault and sexual intercourse without 

consent occurring in 1976 and 1978. The notice also specified the 

intent to use defendant's admissions to prison officials during 

psychological evaluations for parole in which he gave detailed 

accounts of numerous sexual assaults of female minors similar to 

the acts charged in this case. 

In response, defendant filed a motion in limine to bar 

introduction of prior acts evidence. Prior to trial, the District 

Court held a hearing on the motion and then denied it. Prior to 

each occasion on which evidence of prior acts was introduced, the 

District Court gave the following cautionary instruction: 

The State will now offer or has offered evidence 

that the defendant at another time engaged in other 

crimes, wrongs and acts. That evidence was not admitted 

to prove the character of the defendant in order to show 

he acted in conformity therewith. 

The only purpose of admitting that evidence was to 

show either proof of the defendant's motive in this case; 

or proof of opportunity; or proof of the Defendant ' s 

intent; or proof that the crimes were committed 

knowingly; or proof of the defendant's identity; or proof 

of absence of a mistake or accident; or proof of a 

continuous pattern of conduct. You may not use that 

evidence for any other purpose. 

The defendant is not being tried for these other 

crimes, wrongs or acts. He may not be convicted for any 
other offense than that charged in this case. For the 

jury to convict the defendant of any other offense than 

that charged in this case may result in unjust double 

punishment of the defendant. [Emphasis added.] 

Jury Instruction No. 6. Defendant objected to that part of the 

instruction which permitted consideration of prior acts for "proof 

of a continuous pattern of conduct." 

Prior to trial the court also considered the State's motion in 

limine to exclude evidence of the victim's prior sexual conduct 

pursuant to the rape shield statute, 5 45-5-511, MCA. Defendant 

objected to the exclusion because he wanted to introduce evidence 

of past sexual abuse by her natural father to show: veracity, 

accuracy of recall, prior knowledge of sexual terms such as fldick,lt 

and recognition of semen, tendency or opportunity to fabricate or 

exaggerate, and to rebut the State's "lost innocence" argument. 

The District Court granted the State's motion to exclude evidence 

of the prior sexual abuse and did not rule on defendant's motion 

for reconsideration. Defendant filed a notice of his intention to 

challenge the constitutionality of 9 45-5-511, MCA. 

The District Court also granted defendant's pretrial motion to 

prohibit any treating physician, therapist, psychologist, teacher, 

or social worker from testifying about the identification of the 

defendant, and also the reliability or credibility of the victim. 

However, the court reserved a ruling to allow such testimony in 

case the victim's credibility was attacked. 

Defendant stipulated to the fact that he was incarcerated in 

either the State Hospital at Warm Springs or the Montana State 
Prison from August 2, 1978, to June 8, 1989. Testimony at trial 

established that after his discharge, he moved to an apartment in 

Corvallis, a short distance from an elementary school. Defendant's 

neighbor contacted the police in January 1991 after he observed 

T.S. entering defendant's apartment on two occasions. He reported 

that after she entered the apartment, the window blinds were drawn 

and the music turned up. Deputy Sterling Maus responded to the 

report by visiting with T.S. and her mother. Maus testified that 

T.S. told him that defendant touched her pubic area. Deputy Pat 

Richie, who continued the investigation, testified that T.S. 

described one incident of oral intercourse, which occurred on 

February 8, 1991. 

Defendant moved to dismiss the sexual intercourse without 

consent charge, based on Deputy Richie's testimony that the only 

incident of oral intercourse reported occurred on February 8, 1991, 

and therefore, was outside the charging dates of December 25, 1990 

through February 7, 1991. The District Court denied the motion. 

T.S. is an emotionally underdeveloped nine-year-old girl who 

was assigned three school counselors to address her needs. T.S. 

testified that beginning in the fall of 1990, at defendant's 

request, she would go to his apartment almost daily where he would 

remove her clothing, strap her to the bed, unzip his pants, and rub 

his penis against her vagina. On occasion she said he would 

masturbate on her, or force her to perform oral sex. She said that 

defendant would close the blinds and put on music. She stated that 
defendant gave her candy or money and left her notes. T.S. 's 

parents found a note written before Christmas stating: 

Say how would you like to make twenty dollars. Don't let 

anybody see this, this is between you and I. Don't talk 

to anyone about this note. Don't let anyone see it. OK 

After comparing the note to a handwriting exemplar from defendant, 

a handwriting expert identified the handwriting as that of the 

defendant. 

Brad Fowler testified that he hauled water from defendant's 

apartment every evening around 5:00 to 5:30 during the last week in 

January and that he never saw T.S. present, although once defendant 

mentioned to Fowler that T.S. would be walking by at that time. 

Defendant also admitted to Fowler that he had given T.S. candy and 

money. Kathy Ostrander, supervisor for the Department of Family 

Services for Ravalli County, stated that Fowler told her that one 

time when he was over at defendant's getting water he was asked to 

leave because the defendant expected T.S. to arrive soon. Fowler 

testified that defendant asked him not to come over from 5:00 to 

5:30 because he liked to relax after work. 

At the close of evidence, defendant objected to the State's 

proposed Instruction No. 14 stating that the offenses charged were 

distinct offenses to be determined separately by the jury. The 

District Court adopted No. 14 and rejected defendant's proposed 

Instruction No. 1 which provided that the charges were not 

separate, but alternative charges, so that if defendant was found 

guilty, then the jury must determine which one of the three charges 

was committed, and find him not guilty of the other charges. 
After considering all the facts, the jury found defendant 

guilty of all three separate charges. The District Court denied 

his motion for a new trial. Defendant appeals. 

Did the District Court erroneously instruct the jury that it 

could consider evidence of defendant's other crimes as proof of a 

l'continuous pattern of conduct1* under Rule 404(b), M.R.Evid.? 

Defendant contends that the procedural protections under Just 

were violated. These protections are: 

(a) Evidence of other crimes may not be received 

unless there has been written notice to the defendant 

that such evidence is to be introduced. . . . Additionally, the notice to the defendant shall include a 

statement as to the purposes for which such evidence is 

to be admitted. 

(b) At the time of the introduction of such 

evidence, the trial court shall explain to the jury the 

purpose of such evidence and shall admonish it to weigh 

the evidence only for such purposes. 

(c) In its final charge, the court should instruct 

the jury in unequivocal terms that such evidence was 

received only for the limited purposes earlier stated and 

that the defendant is not being tried and may not be 

convicted for any offense except that charged, warning 

them that to convict for other offenses may result in 

unjust double punishment. 

Statev.Just (1979), 184 Mont. 262, 274, 602 P.2d 957, 963-64. 

A. ImRroper Notice: The defendant maintains that the first 

Just procedure was not properly followed because the State's notice 

of intent to introduce evidence of other crimes failed to show any 

logical relationship between the prior acts and any purpose under 

Rule 404(b). This argument is based on our recent decision in State 
v. Croteau (1991), 248 Mont. 403, 812 P.2d 1251, which requires the 

State to specifically state in the notice the relevant purpose for 

admitting the prior acts. Under Croteau, ggshotgunvg approaches merely 

listing all the 404(b) purposes are prohibited. Croteau, 812 P.2d 

at 1255. 

The record does not reflect a specific objection to an overly 

broad or ggshotgungg type of notice. Under 5 46-20-104(2), MCA, 

defendant's failure to make a specific objection to the adequacy of 

the notice waived any deficiency in the notice. 

B. Imprower Jury Instruction: Defendant also contends that 

the procedural protections under Just were violated because the 

phrase "continuing course of conductgv was included in the jury 

instructions. We emphasize that defendant only appeals the jury 

instruction language, and not the admissibility of the prior acts. 

Thus, we will not address whether "continuing course of conductw 

constitutes a 404(b) exception. Rather, we will only determine 

whether the District Court erred by including the phrase in the 

jury instructions. First we will determine whether the language is 

erroneous. If it is erroneous, then we will determine whether it 

was prejudicial. 

The phrase vgcontinuing course of conductIg has never been 

specifically approved for use in a jury instruction. However, it 

has been used interchangeably with several of the Just requirements. 

Most cases use the phrase in consideration of remoteness under the 

second prong of Just. State v. Paukon (1991) , 250 Mont . 32, 817 P. 2d 
P.2d 1137; Statev.Hanson (1980), 187 Mont. 91, 608 P.2d 1083; Statev. 

Tecca (1986), 220 Mont. 168, 714 P.2d 136; Statev. Gambrel (1990), 246 

Mont. 84, 803 P.2d 1071. 

Other cases use the phrase when discussing the third prong's 

vtcommon scheme or plant*: 

ItIn this case the other acts proved show a 

continuous pattern of behavior on the part of the 

defendant for a period of over 3 years. The pattern 

during that period remained virtually the same. This is 

precisely what is meant bv common scheme, plan or 

svstem.I1 [Emphasis added.] 

Just, 602 P.2d at 961 (quoting State v. Jensen (l969), 153 Mont. 233, 

Further, the purpose of the evidence under attack on 

this appeal was offered to show "plan, motive, scheme, 

design, a common course of conduct . . . .Iv [Emphasis 

added. ] 

Just, 602 P.2d at 962. The phrase also appears in connection with 

other purposes under the third prong such as opportunity, intent, 

and identity. 

While defendant was likely prejudiced to a certain 

degree, we cannot say as a matter of law that such 

prejudice clearly outweighed the probative value of this 

evidence. The prior acts evidence established a 

continuins course of conduct by defendant and aided in 

determining o~~ortunitv, intent. and identitv. [Emphasis 

added. ] 

Tecca, 714 P.2d at 139. 

In Statev. Gilpin (l988), 232 Mont. 56, 756 P.2d 445, we referred 

to the phrase as *tsurplusage.vt Likewise, we hold that in this case 

the phrase **continuous course of conductvt is superfluous language 

that was improperly included in the jury instruction. However, 
jury instruction errors which do not affect substantial rights of 

the defendant should be disregarded. State v. wurfz (198l), 195 Mont. 

226, 636 P. 2d 246 (overruled on other grounds in State v. Lance (1986) , 

222 Mont. 92, 721 P.2d 1258). Here, it is difficult to conclude 

that if the evidence itself was properly admitted, defendant's 

substantial rights were affected by this "surplusw language in the 

cautionary instructions. 

We hold that the phrase "continuing course of conduct" is 

superfluous language, improperly included in the jury instruction. 

However, because the instruction was not prejudicial, it 

constitutes harmless error. However, this language should not be 

used in future instructions. 

I I 

Did the District Court err by excluding the victim's past 

sexual history under the rape shield statute, 5 45-5-511, MCA? 

The defendant challenges the constitutionality of the rape 

shield statute on the basis that it violates his right to 

confrontation under the Sixth and Fourteenth Amendments of the 

United State Constitution, and under Article 11, 55 17 and 24, of 

the Montana Constitution. If the statute is upheld, the standard 

of review for its application is manifest abuse of discretion. State 

v. VanDyken (l99O), 242 Mont. 415, 435, 791 P.2d 1350, 1362-63. 

The Sixth Amendment is not absolute, and "may bow to 

accommodate other legitimate interests in the criminal trial 

process. I* Chambers v. MississSippi (1973), 410 U.S. 284, 295, 93 S. ~t. 
1038, 1046, 35 L. Ed. 2d 297, 309. The rape shield statute has 

been upheld as a legitimate interest justifying curtailment of the 

constitutional right to confront witnesses. State v. van Pelt (1991) , 

247 Mont. 99, 805 P.2d 549. 

[A] defendant's right to cross-examine the complaining 

witness in a sexual offense case would be constricted 

"where there is evidence of prior fake accusations.In 

. . . Furthermore, evidence of prior charges 

which have not been adjudicated to be true or 

false; i.e., which may be true or false is also 

inadmissible, primarily because its introduction circumvents the interest in preserving 

the integrity of the trial and preventing it 

from becoming a trial of the victim . . . . These limitations do not infringe upon a 

defendant's right to confrontation." 

Van Pelt, 805 P. 2d at 552-53 (quoting State v. Anderson (1984) , 211 Mont. 

272, 284-85, 686 P.2d 193, 200). Defendant contends that he was 

denied the opportunity to establish the victim's lack of veracity, 

accuracy, and her tendency to exaggerate. Defendant also claims he 

was denied the opportunity to refute the State's "lost innocencenf 

argument by showing that T.S.'s previous sexual abuse allowed her 

to become familiar with terms such as "di~k.~' 

The record shows that the District Court fully considered the 

matter before determining there was no merit to defendant's 

argument. None of the statutory exceptions to the rape shield 

statute, 5 45-5-511, MCA, are met in this case. No statutory 

exception exists allowingthe admission of the prior sexual history 

of a child molestation victim. We decline to create one. Under 

the statute we have affirmed the exclusion of evidence of a 
victim's sexual abuse by her father. Statev.Kao (1990), 245 Mont. 

263, 800 P.2d 714; Van Pelt, 805 P.2d 549. We find no evidence 

supporting the contention that the District Court abused its 

discretion. We hold that the District Court properly excluded the 

past sexual history of the victim in this case. 

I11 

Did the District Court err when it instructed the jury that 

the charges were distinct offenses to be determined separately, 

rather than as lesser included offenses? 

Defendant argues that the District Court erred by not adopting 

his proposed Instruction No. 1: 

These charges allege that the defendant committed an 

unlawful act which constitutes either the crime of Sexual 

Assault, and [sic] Sexual Intercourse Without Consent, or 

the crime of Indecent Exposure. If you find that the 

Defendant committed an act or acts constituting one of 

the crimes so charged, you then must determine which of 

the offenses so charged was thereby committed. 

In order to find the defendant guilty you must all 

agree as to the particular offense committed and, if you 

find the defendant guilty of one of such offenses, you 

must find him not guilty of the others. 

Defendant asserts that this proposed instruction should have 

been given because defendant's conduct occurred outside the 

charging dates stated in the information, and the information 

lacked specificity regarding the time and place of the offense 

pursuant to 5 46-11-401(1), MCA. However, there was no objection 

to the adequacy of the notice provided in the information. 

Therefore, any inadequacy was waived. Section 46-13-101, MCA. 

Furthermore, as discussed later in this opinion, there was 
sufficient evidence of conduct within the time period alleged to 

sustain conviction for separate offenses. 

Defendant also contends that the District Court erred by 

failing to instruct the jury on lesser included offenses. However, 

no instruction on lesser included offenses was requested, and 

therefore, such an instruction was waived. State v. Sheppard (Mont. 

1992) , - P. 2d __I 49 St. Rep. 382 (court not required to give 

lesser included offense instruction sua sponte, if counsel fails to 

request it). 

IV 

Does sufficient evidence support the jury verdict? 

The standard of review for sufficiency of evidence is whether 

any rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt when viewed in the light 

most favorable to the prosecution. Paukon, 817 P.2d at 1146; State 

v. Moreno (1990), 241 Mont. 359, 787 P.2d 334. 

Ample evidence supports the verdict. The evidence establishes 

the elements of each individual charge. The indecent exposure 

charge was established when T.S. testified that defendant Itunzipped 

his pants and took his privates out," and that "white stuff 

squirted at me." The sexual assault charge is established by 

T.S. Is explanation that defendant put his private parts on her 

private parts, and her statement that tr[h]evd take me to his room 

and strap me to the bed and start doing what moms and dads do." 

She also testified that he touched her genital area in her parents1 
home. T.S.'s testimony that defendant made her lick his private 

part, put it in her mouth, and pressed down on her head, provides 

a graphic description of oral intercourse which is the basis for 

the sexual intercourse without consent charge. 

Defendant contends, however, that uncorroborated testimony is 

insufficient to support a conviction. Defendant points to the lack 

of corroborating medical or school testimony. We have held that 

expert testimony is not necessary to prove sexual assault of 

children. Gilpin, 756 P.2d at 451. Moreover, we also held that the 

testimony of a child victim does not need to be corroborated. 

Nonetheless, the handwritten note, and the testimony of the 

neighbor, the handwriting expert, and the police officers support 

the verdict. After reviewing the record, we hold that the evidence 

was sufficient to support a guilty verdict on each separate charge. 

The judgment of the District Court is affirmed. 

We concur: 

Chief Justice 

August 24, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

James A. Haynes 

Attorney at Law 

P.O. Box 544 

Hamilton, MT 59840 

Hon. Marc Racicot, Attorney General 

Cregg W. Coughlin, Asst. Atty. General 

Justice Bldg. 

Helena, MT 59620 

George H. Corn 

Ravalli County Attorney 

P.O. Box 5008 

Hamilton, MT 59840 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA