No. 88-14 

IN THE SIJPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJACKIE WAYNE BURK, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

J. Dirk Beccari, Missoula, Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Barbara Claassen, Asst. Atty. General, Helena 

Robert L Deschamps, 111, County Attorney, Missoula, 

Montana; Betty Wing, Deputy County Attorney 

Submitted on Briefs: Sept. 1, 1988 

Decided: September 26, 1988 

Filed: sEp 2 6 1988 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Jackie Wayne Burk appeals his conviction of sexual 

intercourse without consent, 5 45-5-503, Montana Code Annotated. He was tried and convicted in May 1987 in the Fourth 

Judicial District, Missoula County, Honorable James B. 

Wheelis presiding. Burk was sentenced to twenty-five years 

in the Montana State Prison for his conviction of sexual 

intercourse without consent, to run consecutively with an 

additional ten-year sentence imposed for use of a weapon in 

the commission of the offense. The total Montana sentence 

imposed was to run concurrently with a previous Idaho sentence on an unrelated matter. We affirm. 

The issue on appeal is whether the District Court erred 

in allowing the Missoula County Attorney to present evidence 

of defendant's absence from the first scheduled trial on this 

matter along with an accompanying jury instruction on flight. 

On December 21, 1985, defendant, age twenty-eight, went 

on a date with T.R., the complaining witness, age eighteen. 

Defendant picked her up at her house in Clinton and took her 

to a Christmas party in Missoula. Both consumed alcohol and 

defendant "smoked a joint": a marijuana cigarette. When the 

party dwindled, they left in search of another Christmas 

party to be held by friends of Burk. After this point, the 

details are hotly disputed, and there is no agreement as to 

what transpired over the next several hours. 

After a car wreck in Pattee Canyon at approximately 

1:00 a.m., Burk and T.R. were picked up by passersby in a 

Bronco. Burk forgot his coat in the wrecked car. T.R. 

wanted to go to the hospital because of the injuries to her 

head and face she received when Burk's car went off the road 

and slammed into a tree. But, at Burk's insistence, they 

were dropped off at the Babbit residence in Milltown. Unable 
to awaken the Babbits for assistance, they went to a neighboring trailer to use the phone. The trailer had no phone. 

Burk then lost track of T.R. for a short time but discovered 

her outside on the road exiting the trailer park. Burk 

testified that T.R. was going to walk across the field to the 

IGA in Milltown to call her parents for a ride home and she 

thought it best that he not be there. Defendant testified 

that he did not see T.R. again that night and was unaware of 

any incident which may have happened to her until the officers arrested him at about 4:30 a.m. while he was attempting 

to retrieve his car from the Pattee Canyon ditch. 

T.R. relates a vastly different story of what happened 

to her in the early morning hours of December 22, 1985. 

Finding the IGA pay phone jammed, T.R. crossed the street and 

phoned her parents from a local business. It was 2: 24 a.m. 

She asked her parents for a ride home and was waiting for 

them at the IGA when Burk reappeared. 

He was now wearing dark blue snow clothing. He convinced T.R. that the Babbits, who had just given him the 

coat, had phoned her parents and that she was now supposed to 

go with Burk and wait inside at the Babbits' for her parents. 

Believing Burk's story, T.R. started off across the field 

again with Burk. As they walked across the walking bridge in 

Milltown Burk commented to her how easy it would be to push 

someone off the bridge to their death and make it look like 

an accident. T.R. took this as a threat. 

After they crossed the bridge, Burk wanted to go under 

the bridge to "smoke a joint." T.R. refused. Burk then told 

her she could go willingly or under force and with that he 

wrestled her down the embankment. T.R. testified that she 

landed on some bushes and rocks. She sat on the rocks while 

Burk smoked his cigarette. He then tried to kiss her but she 

refused. Burk tried to kiss her again and crawled on top of 
her. T.R. scratched his face. Angered, Burk told her that 

she could do this willingly or under force, and he then 

pulled a knife out of his pocket. T.R. testified that the 

knife blade was six inches in length. He rubbed the knife 

along her hair, ear and neck. He then took off his snow 

jacket and instructed her to lie on it. He pulled up her 

shirt and bit her right breast. T.R. testified that out of 

fear for her life, she was still and passive while Burk 

pulled down her pants and penetrated her. Burk then stated 

it would not be fun if T.R. was not going to move, so he 

stood up, pulled up his pants and left. 

T.R. then went toward a light that was on in the trailer park. From the trailer, she phoned her parents again and 

told them she had been in two car wrecks, raped and threatened with murder. Her mother called 911 and within minutes a 

sheriff's officer picked up T.R. She gave a full description 

of Burk and the location of his car. Burk was apprehended by 

other officers at 4:30 a.m. at the location of his car as 

given by T. R. 

The officers transported T.R. to St. Patrick's Hospital 

where a rape protocol kit examination was performed and the 

evidence preserved. T.R. was taken from the hospital to the 

sheriff's department for a statement and some further 

questioning. 

The evidence at trial from the rape protocol exam 

revealed sperm, four to six hours old, on T.R. ' s underwear 

which matched the sperm that was also found on defendant's 

underwear. Expert serologist testimony revealed that 30 

percent of the male population had Burk's blood and semen 

type so that this match up was not identity perfect. Rather, 

it was a probability test showing that defendant was definitely within the 30 percent group type of men as possible 
assailants. Examination by Dr. Girard revealed a lesion on 

T.R.'s right breast consistent with a bite mark. 

Testimony from Estella Harris, whose phone T.R. used at 

4:00 a.m., related that T.R. showed up on their door step 

crying and hysterical. She requested to use the phone, her 

clothes were dirty, she had dirt and twigs in her hair. She 

stated that she had just been raped. 

Officers investigating the crime scene under the bridge 

found tennis shoe prints matching the same shoes that Burk 

was wearing. Also clothing patterns in the dirt near the 

rocks on the river bank were found. Additionally, when 

apprehended by officers in Pattee Canyon, Burk was wearing 

the dark ski jacket and had a knife in his pocket. 

At trial the prosecution further introduced evidence of 

the June 4, 1986, original trial date for which defendant 

failed to appear. Defendant appeared the next day with an 

implausible story of an automobile accident the day before 

and the resultant disorientation which prevented his 

appearance. 

The prosecution sought to show guilt by conduct of 

defendant's attempt to avoid prosecution. However, defendant 

appeared at the courthouse the following day and was arrested. Defense counsel objected to the introduction of his 

absence as evidence of flight. The trial judge allowed the 

testimony and the jury was allowed to hear defendant's tale. 

The jury was also given an instruction as to the use of 

flight evidence, from which they could infer a consciousness 

of guilt. 

The jury convicted Burk of sexual intercourse without 

consent. Burk appeals. 
I. EVIDENCE OF FLIGHT 

The tension surrounding evidence of flight usually 

involves the issue of immediacy. Flight is an attempt to 

avoid arrest - or prosecution. Gann v. State (Ind. 1988) , 521 

N.Ed.2d 330. Evidence of such is used to prove guilt by 

conduct. State v. Charlo (Mont. 1987), 735 P-2d 2781 44 

St.Rep. 597; see also McCormick - on Evidence, 5 271 at 803 (3d 

Ed. 1984). Through the use of an accompanying instruction, 

the jury is allowed to infer a consciousness of guilt from 

evidence of flight. Charlo, 735 P.2d at 282, 44 St.Rep. at 

603. 

In the instant case, immediacy is not an issue. Recause it was several months after the arrest and charges that 

defendant disappeared, the inference that defendant tried to 

escape arrest is negated. 

However, we are not convinced that the evidence negates 

the possibility that defendant was trying to avoid prosecution, since he disappeared on the day of trial. Thus, the 

immediacy element is not at issue. 

It should be noted, however, that a defendant must do 

more than merely fail to show up for the flight evidence to 

be proper. United States v. Sanchez (2nd Cir. 1986), 790 

F.2d 245; Commonwealth v. Babbs (Pa. Sup. Ct. 1985), 499 A.2d 

1111. In the instant case, the defendant's nonappearance at 

his trial was coupled with the incredible story which he 

recounted to the authorities when he appeared the next day. 

According to defendant's testimony, he was involved in 

a single car accident on Blue Mountain Road outside of 

Missoula while en route to the courthouse for his trial. 

While he was driving along the Bitterroot River, a cigarette 

which he was trying to put in the ashtray fell to the floor 

and began burning. Defendant reached over to grab it, 

swerved off the road and plunged his car into the river. He 
testified that he became disoriented from hitting the trees 

and rocks as he was swept down river while trying to escape. 

Once on dry land he hiked to Lolo Pass. (The opposite 

direction from Missoula, the place of trial.) It was midday 

when he reached the highway at the pass. Seeing no cars at 

all, he took off across country, headed for his residence in 

south Florence. He hiked the rest of that day and all 

through the night in the rain and hail. The next day he 

appeared at the courthouse in Missoula, dry, calm and oriented, to explain his absence to the judge. This is the story 

which Burk also told the jury at his second trial in May 

1987. 

At trial, the prosecution introduced evidence by Officer Reed that although the river had been searched repeatedly 

by the sheriff's department, even during low water periods, 

no evidence of a car wreck was ever found and defendant's car 

was not retrieved. 

Officer Bell, an officer familiar with that area, 

testified that it would take five days and nights to hike the 

territory allegedly covered by the defendant on June 4, 1986. 

Through the officer ' s testimony, defendant ' s story was discounted on several points. In light of Officer Bell's testimony, coupled with Officer Reed's testimony and no car ever 

being found in the river, defendant's story seems inherently 

unbelievable. It is reasonable that a jury could infer a 

consciousness of guilt by Burk's absence coupled with this 

story. 

A District Court's ruling on the admissibility of 

certain evidence will not be disturbed absent a showing of an 

abuse of discretion. Cooper v. Roston (Mont. 1988), 756 P.2d 

1125, 45 St.Rep. 978. The trial judge in this case heard the 

defendant's testimony in a June 1986 hearing and held an - in 

camera hearing in May 1987 at which the State made an 
additional offer of proof before the judge ruled on its 

admissibility. Under these facts, defendant has failed to 

meet his burden of proof that the district judge abused his 

discretion in allowing the flight evidence. 

Prosecutors introducing questionable evidence to prove 

guilt beyond a reasonable doubt are inviting issues of reversible error. In the instant case, it should be noted that 

a jury conviction easily could have been sustained from the 

substantial credible testimonial and scientific evidence 

against defendant which was produced at trial, notwithstanding the flight evidence. Thus, at most, the unnecessary 

flight evidence would have been harmless error had it been 

determined to be inappropriate. However, because there was 

more than mere absence on the part of the defendant and no 

issue of immediacy, the flight evidence was proper. 

11. FLIGHT INSTRUCTION 

The judge instructed the jury on the evidence as 

follows: 

If you are satisfied that the crime 

charged in the information has been 

committed by someone, then you may take 

into consideration any testimony showing 

or tending to show flight by the defendant. This testimony may be considered 

by the jury as a circumstance tending to 

prove a consciousness of guilt, but it 

is not sufficient of itself to prove 

guilt. The weight to be given such 

circumstances and significance, if any, 

to be attached to it, are matters for 

the jury to determine. 

A jury instruction is proper when it is "relevant to evidence 

or issues in a case and when it is supported by some evidence 

or some logical inference from other evidence presented at 

trial. " Charlo, 735 P.2d at 281, 44 St.Rep. at 602. 
(Emphasis added.) It is clear from the foregoing discussion 

of the evidence adduced at trial that this instruction was 

definitely supported by the evidence. Further, the instruction was a correct statement of the law. Indeed the instruction was taken verbatim from this Court's opinion in Charlo. 

Defense counsel next argues that it is legally inadmissible under Rule 403, M.R.Evid., arguing that its probative 

value is substantially outweighed by its prejudicial effect, 

and, the instruction improperly called additional attention 

to the issue of flight. We disagree. 

There is probative value to flight evidence. "The fact 

that the jury could reasonably interpret the defendant's 

actions as flight in avoidance of prosecution would support 

the instruction on flight." Gann v. State (Ind. 1988), 521 

N.E.2d at 334. Burk had ample opportunity to tell the jury 

his reasons for absence and to dissipate any prejudice the 

jury might attach to the fact that Burk was not present on 

June 4, 1986. Determining the credibility of Burk's story 

was properly left to the jury. The instruction itself cautions the jury that the significance, if any, of Burk's 

absence is for them alone to determine. We find no error in 

this instruction. 

Although the flight evidence was unnecessary in this 

case, the District Court did not abuse its discretion in 

allowing it. The jury instruction properly accompanied the 

flight evidence. 

Judgment affirmed. 
We concur: 

A 

{Justices n