No. 91-559 IN THE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, Plaintiff and Respondent, 

# D

v. 

## AUG241992
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:

ClerkJustice 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, defendantwas sentenced to a total of 60years in theMontana State Prison without benefit of parole. An amended judgmentwas entered

onNovember 20, 1991. TheDistrictCourt denied defendant's motion for a new trial. The Defendant appeals. We affirm. The issues are: 1. Did the District Court erroneously instructthe jurythat it could consider evidence of defendant's other crimes asproof of

a 'lcontinuous pattern of conductv1 under Rule 404(b), M.R.Evid.? 2. Did the DistrictCourt errby excluding thevictim'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 evidencewas not admitted to prove the character of thedefendant in order to show he acted in conformity therewith. The only purpose of admitting that evidence was to showeitherproof of thedefendant's motive in this case; or proof of opportunity; or proof of the Defendant

### 's intent; or proof that the crimes were committed knowingly;orproof of thedefendant's identity;orproof 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. Hemay not be convicted for anyother 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. [Emphasisadded.] Jury Instruction No. 6. Defendant objected to that part of the instruction which permitted considerationof prior acts for "proof of a continuous pattern of conduct." Prior to trial the court also considered the State'smotion 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 knowledgeof sexual terms suchas 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 intentionto challenge the constitutionality 

### of 9 45-5-511, MCA. TheDistrictCourt alsogranted defendant's pretrialmotion to prohibit any treatingphysician, 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 StatePrison from August 2, 1978, to June 8, 1989. Testimony at trial established that after his discharge, he moved to an apartment in Corvallis,a shortdistance froman 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, shewould go to his apartment almost dailywhere he would remove her clothing,strap her to thebed, unzip his pants, and rub his penis against her vagina. On occasion she said he would masturbate onher, or force her toperform oral sex. She said that defendantwould close theblinds andput onmusic. She stated thatdefendant gave her candy or money and left her notes. T.S. 's parents found a note written before Christmas stating: Sayhowwould you like tomake twentydollars. 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 fromdefendant,

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 lastweek in January and thathe never sawT.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 InstructionNo. 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 determinewhich 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'continuouspattern of conduct1* under Rule 404(b), M.R.Evid.? Defendant contends that the procedural protections underJust

were violated. These protections are: (a) Evidence of other crimesmay 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 forthe limitedpurposes earlier statedand 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 procedurewas not properly followed because the State's notice of intent to introduce evidence of other crimes failed to showany logical relationship between the prior acts and any purpose under Rule 404(b). This argument is based on our recent decision inState

### 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 theprior acts. UnderCroteau, ggshotgunvg approachesmerely 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 failuretomake a specific objectionto theadequacyof 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 theprior 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. Firstwewill determine whether the language is

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

was prejudicial. The phrase vgcontinuing course of conductIghas never been specifically approved for use in a jury instruction. However, it hasbeen used interchangeably with several of theJust requirements. Most casesuse the phrase in considerationof remotenessunder the second prong of Just. State

### v. Paukon (1991)

## , 250 Mont

# . 32, 817 P.2dP.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 remainedvirtually the same. This is precisely what is meant bv common scheme, plan or svstem.I1 [Emphasisadded.] Just, 602 P.2d at 961 (quoting 

### Statev. Jensen (l969), 153 Mont. 233,

Further,thepurpose 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 connectionwith 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 determiningo~~ortunitv, intent. and identitv. [Emphasis added.] Tecca, 714 P.2d 

### at 139.
InStatev.Gilpin (l988), 232 Mont. 56, 756 P.2d 445,we referred to thephrase 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 shouldbe disregarded. State

### v. wurfz (198l), 195Mont. 226, 636 P.2d 246 (overruled on othergrounds inState

### 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 affectedby this "surpluswlanguage 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 applicationismanifest 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. vanPelt (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., whichmay be trueor 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." VanPelt, 805 P.2d at 552-53 (quotingState

### v.Anderson (1984)

## , 211Mont. 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,andher tendencyto exaggerate. Defendantalso claimshe

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 familiarwith 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 allowingtheadmission of theprior sexualhistory of a child molestation victim. We decline to create one. Under the statute we have affirmed the exclusion of evidence of avictim's sexual abuse by her father. Statev.Kao (1990), 245 Mont. 263, 800 P.2d 714; 

### VanPelt, 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 DistrictCourt erredby not adopting his proposed InstructionNo. 1: These charges allege that the defendant committed an unlawful act which constitutes eitherthecrimeof Sexual Assault,and [sic]Sexual IntercourseWithout 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 youmust 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 wassufficient evidence of conduct within the time period alleged to sustain conviction for separate offenses. Defendant also contends that the District Court erred by failingto 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 failsto 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 couldhave 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 theverdict. Theevidence establishes the elements of each individual charge. The indecent exposure chargewas establishedwhen T.S. testifiedthat 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 thathe touchedher genital area inher parents1home. 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 intercoursewithout consent charge. Defendant contends, however, that uncorroborated testimony is insufficientto support a conviction. Defendant points to the lack of corroboratingmedical 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 guiltyverdict on each separate charge. The judgment of the District Court is affirmed.

We concur:

Chief JusticeAugust24, 1992 CERTIFICATEOFSERVICE 

### Iherebycertifythat thefollowingorderwas sentby United Statesmail,prepaid,tothe followingnamed:

JamesA.Haynes Attorneyat

### Law P.O. Box544 Hamilton,MT 59840 Hon.MarcRacicot, AttorneyGeneral CreggW.Coughlin,Asst.Atty.General JusticeBldg. Helena,

### MT 59620 George

### H.Corn RavalliCounty Attorney P.O. Box

### 5008 Hamilton,MT 59840 EDSMITH CLERKOFTHESUPREMECOURT STATE

### OFMONTANA