No. 85-477 INTHE SIJPREME COURT OF THE STATE OF MONTANA 1986

STATE OF MONTANA, Plaintiff and Respondent,

-vsLEE TECCA, Defendant and Appellant.

APPEAL FROM: DistrictCourt of the SixthJudicialDistrict, In and for theCounty 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

. - ClerkMr. Justice Frank R. Morrison, Jr., delivered the Opinion 

### of theCourt. Defendant Lee Tecca appeals his July 30, 1985, jury conviction in the District Court of the Sixth Judicial Dis

### trict 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, atthe Tecca residence. Defendant had recently finished a 

### termwith the AirForce and was living inthe Tecca home atthe 

### time. N.L. was elevenyears old and defendant 23years 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. 

### wereplaying. Both girlsbegan drinkingheer. About 9:00 p.m., defendant, Cindy, and N.L. leftthehouse to go driving. Mrs. Tecca was studying inher bedroom, and was

unaware the girls

### were drinking and that they had leftwith defendant. Defendant bought 

### a twelve-pack of beer, which was placed intheback seatwith the girls. They drove around town for about an hour and a half and then returned tothe 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 thathe had not more than two beers during the course of the evening. As they entered thehouse, 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 

### inher vagina. Defendant asked N.L. 

### to roll over,but she wouldn't sohe 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 informationwas 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 commencementof 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., concerningprior acts of defendant. Prior to R.T.'s testimo

### ny aboutdefendant's previous acts,the trial judge instructed the jury that theywere 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 aweek 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 thatsimilar 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 inherbed atnight and touched herbreasts and vagina. This occurred for nearly two years, but then stopped afterdefendant's fatherbecame aware and spokewith defendant. S.W. testified about an incident involving defendant when she visited the Tecca home about 

### five years ago. She went todefendant's room withCindy, 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 atthe Tecca home. On each occasion K.W. was 

### indefendant's room and defendant asked her tohave

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 realizedL.C. was awake. Jury instruction no. 16 was a limiting instruction informing the jury that theprior actsevidence 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, thejury returned a verdict of guiltyof sexual a-ssault, a felony. The districtjudge sentenced defendantto 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.idnot 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 relevantevidence: 

## "

# . .

# . if itsprobativevalue is substantially outweighed by the danger of unfair prejudice 

# . .."

In State v. Just, supra,we established a four-element test to determine the admissibilityofdefendant'sprior acts

or crimes. The four elementsare: 1) The sirnil-arityof 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-owingtestimony concerningprior acts ofd.efendant. While the prior acts were not identical to the offense committed in this case, there is sufficient similarity tosustain admission. Each of the incidents involved young girlsand occurred intheTecca home. The testimony of S.W., 

### K.W., and R.T., clearly shows defendant's sexual interest in young girls. Defendant asked S.W. toremove her clothingand then unbuttoned her pa.nts; defendant asked K.W. for sex and exposed himself toher; and defendant went tobed with R.T. foralmost two years and touched her allover. Both R.T. and L.C. testified that they had been awakened in the middle of the night to find defendant next tothe bed dressed only in hisunderwear. These incidentsbear sufficient similarityto thecharged offensetouphold theiradmission. The prior acts of defendant testified toby these

### witnesses go back as far asnine 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., Statev. Stroud (Mont. 1984), 683 P.2d 459; 

### 41St.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 conductby defendant and thereforewere 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 isamatter thatgoes tothecredibilityof the evidence rather than 

### its admissibility, unless the remoteness 

### is so great that theproffered 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 ofnearly two years until defendant was confronted by his father. During the next four years, defendant was away inthe service, yet when he was home on leave, incidents with other young girlsoccurred. Afterdefendant returned home from the service, R.T. testified that on many occasions defendant entered her room atnight inhisunderwear, and that, because of these occurrences, shemoved outof thehouse about a week prior tothe offense againstN.L. This testimony shows that defendant's devia.te sexual conduct has been occurring for approximately nine yea.rs. We d-eclinetoestablish an arbitrarytime 

### limitforadmittingprior actsevidencewhere such

a cut-off would excludeprobative 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 tothe 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 theJusttest. Finally, we find that the probative value of the prior acts evidence was not substantiallyoutweighed.by the prejudice todefendant. While defendant was likelyprejudiced 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 storyof thevictim.

### In State v. Just, supra, this Court set forth three procedural requirements for the admissionofprior acts. The requirementsare: (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. 184Mont. at 262, 602P.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 jurybefore theprior acts testimony: Ladies and gentlemenof the jury, evidence is about to be introduced for the purpose of showing the defendant committed crimes or acts other than the one forwhich he is on trial. Youmay 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 characteristicmethod, 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 tounjust doublepunishment. 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 aproposition, nor dowe find Justrequires the trial judge to deliver an admonition each time prior acts evidence is received.Finally, defendant asserts the trialjudge 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 atanother 

### timeengaged inother

### crimes, wrongs, or acts. That evidencewas not admitted toprove the character of the defendant in order to show he acted inconformity therewith. The onlypurpose of admitting that evidence was to show proof of motive, opportunity, plan, knowledge, identity and absence of mistake or accident. You may not use thatevidence forany otherpurpose. The defendant 

### is not being tried for that other 

### crime, wrong or act. He may notbe convicted forany 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 doublepunishment of thedefendant. We find this to he a proper cautionary instruction meeting thethirdprocedural requirement of Just. WeaffirmtheDistrictCou

Weconcur: