No. 85-477 

IN THE SIJPREME COURT OF THE STATE OF MONTANA 

1986 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsLEE TECCA, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Sixth Judicial District, 

In and for the County of Park, 

The Honorable Byron Robb, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Knuchel & McGregor; Karl Knuchel, Livingston, 

Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Kathy Seeley, Asst. Atty. General, Helena, Montana 

Wm. Nels Swandal, County Attorney, Livingston, 

Montana 

Filed: 

Submitted on Briefs: Jan. 9, 1986 

Decided: February 11, 1986 

. - 

Clerk 
Mr. Justice Frank R. Morrison, Jr., delivered the Opinion of 

the Court. 

Defendant Lee Tecca appeals his July 30, 1985, jury 

conviction in the District Court of the Sixth Judicial District on one count of felony sexual assault. We affirm. 

On the evening of November 8, 1984, the prosecutrix, 

N.L., stayed overnight with her friend, Cindy Tecca, at the 

Tecca residence. Defendant had recently finished a term with 

the Air Force and was living in the Tecca home at the time. 

N.L. was eleven years old and defendant 23 years old. Defendant was born of Mrs. Tecca's previous marriage, and is a 

half-brother to Cindy, as well as the other Tecca children. 

About 8:00 p.m. that evening, defendant brought a 

six-pack of heer home and took the beer downstairs where 

Cindy and N.L. were playing. Both girls began drinking heer. 

About 9:00 p.m., defendant, Cindy, and N.L. left the house to 

go driving. Mrs. Tecca was studying in her bedroom, and was 

unaware the girls were drinking and that they had left with 

defendant. 

Defendant bought a twelve-pack of beer, which was placed 

in the back seat with the girls. They drove around town for 

about an hour and a half and then returned to the Tecca home 

about 10:30 p.m. Ry this time, N.L. and Cindy had each 

consumed at least four or five beers; defendant testified 

that he had not more than two beers during the course of the 

evening. 

As they entered the house, defendant suggested the girls 

go right to sleep and not make any noise. The girls had 

arranged their sleeping bags on the floor in the basement 

earlier in the evening, and planned on sleeping there. N.L. 

testified that she slept for a while, but was awakened by 

defendant. Defendant was kneeling beside N.L. and had his 
hand in her underpants with his finger in her vagina. Defendant asked N.L. to roll over, but she wouldn't so he left. A 

light in the hallway was on, and N.L. could see that it was 

defendant; he was wearing only his underwear. About 20 

minutes later Cindy became sick. After several trips to the 

bathroom, Mrs. Tecca heard the commotion and moved the girls 

upstairs. 

N.L. did not tell her parents about the incident until a 

week later. An information was filed January 4, 1985, charging defendant with felony sexual assault, in violation of 

5 45-5-502 (3), MCA. 

On April 10, 1-985, the prosecution filed a Notice of 

Intent to Introduce Evidence of Other Acts. Defense counsel 

responded with a motion in limine to bar introduction of 

prior acts evidence. A hearing was held before the district 

iud.ge on May 24, 1985, and the motion in limine denied. 

Defense counsel moved for reconsideration of the motion in 

limine, and the motion was again denied on July 29, 1985, 

prior to commencement of trial. 

Trial was held July 29, 1985. Following the testimony 

of N.L., testimony was given by R.T., S.W., K.W., and L.C., 

concerning prior acts of defendant. Prior to R.T.'s testimony about defendant's previous acts, the trial judge instructed the jury that they were to consider such evidence only for 

the limited purposes of proving a common scheme or nethod 

used in the commission of the alleged offense, identity of 

the offender, or existence of intent. R.T., defendant's 

half-sister, testified that she had moved out of the Tecca 

home a week prior to the incident, because on three occasions 

the previous month she had awakened at night to find defendant sitting next to her bed clothed in only his underwear 

with his hand resting on her bed. R.T. testified that 
similar incidents occurred the previous two times defendant 

was on leave, during 1982 and 1983. R.T. further testified 

that when she was eight (nine years ago), defendant climbed 

in her bed at night and touched her breasts and vagina. This 

occurred for nearly two years, but then stopped after defendant's father became aware and spoke with defendant. 

S .W. testified about an incident involving defendant 

when she visited the Tecca home about five years ago. She 

went to defendant's room with Cindy, and defendant asked S.W. 

to remove her clothing. S.W. refused, so defendant put his 

arms around her from behind and unbuttoned her pants. She 

buttoned them baclc up and left. S.W. was nine years old at 

the time. 

K.W. testified about two incidents with defendant that 

occurred while she was at the Tecca home. On each occasion 

K.W. was in defendant's room and defendant asked her to have 

sex with him and he exposed himself. These incidents occurred approximately two and four years ago, when K.W. was 

age eiqht and ten, respectivelv. 

L.C. testified that when she was twelve, about three 

years before, she spent the night with R.T. at the Tecca 

home. L.C. awoke that night to find defendant next to her 

bed with his hand resting on the bed, hut left immediately 

when he realized L.C. was awake. 

Jury instruction no. 16 was a limiting instruction 

informing the jury that the prior acts evidence was admitted 

to show proof of motive, opportunity, plan, knowledge, identity and absence of mistake or accident, and that such evidence was not to be used for any other purpose. After 

deliberation, the jury returned a verdict of guilty of sexual 

a-ssault, a felony. The district judge sentenced defendant to 

5 years, with 4 years, 11 months conditionally suspended. 
Defendant appeals his conviction and raises the following 

issue: 

Whether the District Court erred in allowing admission 

of prior acts evidence? 

Defendant contends that the admission of testimony 

relating to his prior acts was a violation of Rule 404(b), 

Mont.R.Evid, and d.id not meet the guidelines established by 

this Court in State v. Just (1979), 184 Mont. 262, 602 P.2d 

957. Rule 404(b), Mont.R.Evid., provides: 

Other crimes, wrongs, acts. 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 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 403, Mont.R.Evid. requires the exclusion of otherwise 

relevant evidence: " . . . if its probative value is substantially outweighed by the danger of unfair prejudice . . ." 

In State v. Just, supra, we established a four-element 

test to determine the admissibility of defendant's prior acts 

or crimes. The four elements are: 

1) The sirnil-arity of crimes or acts; 

2) nearness i.n time; 

3) tendency to establish a common scheme, plan, or 

system; and 

4) the probative value of the evidence is not substantially outweighed by the prejudice to the defendant. 184 

Mont. at 269, 602 P.2d at 961. 

Applying this test to the facts of the present case, we 

find the trial judge was correct in all-owing testimony concerning prior acts of d.efendant. 

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. The testimony of S.W., 

K.W., and R.T., clearly shows defendant's sexual interest in 

young girls. Defendant asked S.W. to remove her clothing and 

then unbuttoned her pa.nts; defendant asked K.W. for sex and 

exposed himself to her; and defendant went to bed with R.T. 

for almost two years and touched her all over. Both R.T. and 

L.C. testified that they had been awakened in the middle of 

the night to find defendant next to the bed dressed only in 

his underwear. These incidents bear sufficient similarity to 

the charged offense to uphold their admission. 

The prior acts of defendant testified to by these witnesses go back as far as nine years. Defendant asserts that 

such evidence is too remote, and violates the time limits 

established by this Court for admitting prior acts. See 

e.g., State v. Stroud (Mont. 1984), 683 P.2d 459; 41 St.Rep. 

919 (three and a half years); Sta.te v. Hansen (1980), 187 

Mont. 91, 608 P.2d 1083, (two and a half years). The trial 

judge agreed with the prosecutor that these acts showed a 

continuous pattern of conduct by defendant and therefore were 

admissible. In State v. Doll (Mont. 1985), 692 P.2d 473, 42 

St.Rep. 40 we said: 

Whether evidence of prior crimes is too remote is 

directed to the discretion of the district court 

and is a matter that goes to the credibility of the 

evidence rather than its admissibility, unless the 

remoteness is so great that the proffered evidence 

has no value. 

We agree that an isolated incident from nine years ago 

is too remote, however, where there is a continuing pzttern 

of similar conduct, the remoteness problem is alleviated. 

Accord, State v. Spence (Ariz. 1985), 704 P.2d 272, 274. 

R.T. testified that defendant molested her for a period of 
nearly two years until defendant was confronted by his father. During the next four years, defendant was away in the 

service, yet when he was home on leave, incidents with other 

young girls occurred. After defendant returned home from the 

service, R.T. testified that on many occasions defendant 

entered her room at night in his underwear, and that, because 

of these occurrences, she moved out of the house about a week 

prior to the offense against N.L. This testimony shows that 

defendant's devia.te sexual conduct has been occurring for 

approximately nine yea.rs. We d-ecline to establish an arbitrary time limit for admitting prior acts evidence where such 

a cut-off would exclude probative evidence. 

The prior acts testimony shows defendant committed, or 

attempted to commit, sexual acts with young girls for a 

period of nine years leading up to the offense against N.L. 

We find the number and similarity of incidents tends to 

establish a common scheme or plan under the third prong of 

the Just test. 

Finally, we find that the probative value of the prior 

acts evidence was not substantially outweighed. by the prejudice to defendant. 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 continuing 

course of conduct by defendant and aided in determining 

opportunity, intent, and identity. The victim in this case 

was an 11 year-old who had consumed five beers the night of 

the incident. Testimony that defendant had made advances on 

other young girls who had been in the Tecca home tends to 

corroborate the story of the victim. 
In State v. Just, supra, this Court set forth three 

procedural requirements for the admission of prior acts. The 

requirements are: 

(1) notice to the defendant prior to trial that 

evidence of other crimes, wrongs or acts will be 

introduced; (2) an admonition by the judge to the 

jury when the evidence is introduced that it is 

admitted solely for one or more of the accepted 

purposes stated in Rule 404 (b) ; and (3) a cautionary jury instruction to the same effect, providing 

in unequivocal terms that the evidence is admitted 

for the purpose earlier stated and not to try and 

convict the defends-nt for prior wrongful conduct. 

184 Mont. at 262, 602 P.2d at 963-4. 

There is no dispute that the prosecution timely filed a 

notice of intent to introduce such evidence. Defendant 

asserts the District Court failed to meet the second and 

third requirements. We disagree. 

The trial judge delivered the following admonition to 

the jury before the prior acts testimony: 

Ladies and gentlemen of the jury, evidence is about 

to be introduced for the purpose of showing the 

defendant committed crimes or acts other than the 

one for which he is on trial. You may not consider 

this evidence to prove that the defendant is a 

person of bad character, or that he has a disposition to commit crimes. You may only consider this 

evidence for the limited purposes of providing a 

characteristic method, plan or scheme used in the 

commission of the offense in this case, or the 

identity of the person who committed the offense. 

You may also consider this evidence to prove existence of intent, which is an element of the crime 

charged. You may not consider this evidence for 

any other purpose that would expose the defendant 

to unjust double punishment. 

There were four witnesses who testified as to defendant's 

prior acts. Defendant argues that the trial judge was 

required to deliver the admonition before each of these 

witnesses testified. Defendant has cited no cases in support 

of such a proposition, nor do we find Just requires the trial 

judge to deliver an admonition each time prior acts evidence 

is received. 
Finally, defendant asserts the trial judge did not give 

the proper cautionary instruction to the jury concerning 

prior acts evidence. Court instruction no. 16 provided: 

The State has offered evidence that the defendant 

at another time engaged in other crimes, wrongs, or 

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 proof of motive, opportunity, plan, knowledge, identity and 

absence of mistake or accident. You may not use 

that evidence for any other purpose. The defendant 

is not being tried for that other crime, wrong or 

act. 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. 

We find this to he a proper cautionary instruction 

meeting the third procedural requirement of Just. 

We affirm the District Cou 

We concur: