No. 88-14
INTHE SIJPREME COURT OF THE STATE OF MONTANA
1988

STATE OF MONTANA,
Plaintiffand Respondent,-vsJACKIE WAYNE BURK,
Defendant and Appellant.

APPEAL FROM: DistrictCourtof the FourthJudicialDistrict, Inand forthe Countyof Missoula, TheHonorableJamesB. Wheelis, Judge presiding.
COUNSEL OF RECORD:
ForAppellant:

J. DirkBeccari, Missoula, Montana
ForRespondent:
Hon. Mike Greely, AttorneyGeneral, Helena, Montana Barbara Claassen, Asst. Atty. General, Helena RobertL Deschamps, 111, CountyAttorney, Missoula, Montana; BettyWing, Deputy CountyAttorney

Submittedon Briefs: Sept. 1, 1988 Decided: September 26, 1988

Filed:

## sEp26

### 1988

ClerkMr. 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 inMay 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 unrelatedmatter. We affirm. The issue on appeal iswhether the District Court erred in allowing the Missoula County Attorney to present evidence ofdefendant's absence from the first scheduled trialon this matter alongwith an accompanying jury instructionon flight. On December 21, 1985,defendant, age twenty-eight, went

on a date with T.R., the complainingwitness, age eighteen. Defendant picked her up at her house in Clinton and took her to a Christmasparty inMissoula. Both consumed alcohol and defendant "smoked a joint": amarijuana 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 severalhours. 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 inMilltown. Unableto 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 timebut discovered her outside on the road exiting the trailer park. Burk testified that T.R. was going towalk 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 PatteeCanyonditch. T.R. relates a vastly different story ofwhat happened to her in the early morning hours of December 22, 1985. Finding the IGApay phone jammed,T.R. crossed the streetand 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 IGAwhen 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 shewas now supposed to go with Burk andwait insideat the Babbits' forher parents. Believing Burk's story, T.R. started off across the field again with Burk. As they walked across the walkingbridge 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 somebushes and rocks. She sat on the rocks while Burk smoked his cigarette. He then tried to kissherbut she refused. Burk tried to kiss her again and crawled on top ofher. 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 stoodup,pulled up his pants and left. T.R. thenwent toward a light thatwas 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 threatenedwithmurder. Her mother called 911and within minutes a sheriff's officerpicked up T.R. She gave a fulldescription of Burk and the locationofhis car. Burkwas apprehendedby other officers at 4:30 a.m. at the location of his car as givenby T.R. The officers transported T.R. to St. Patrick's Hospital where a rape protocol kit examinationwas 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 thismatch upwas not identityperfect. Rather, it was a probability test showing that defendant was definitely within the 30 percent group type of men as possibleassailants. Examination by Dr. Girard revealed a lesion on T.R.'s rightbreast consistent with abite 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 clotheswere dirty, shehad dirt and twigs in her hair. She stated that shehad justbeen raped. Officers investigatingthe crime sceneunder thebridge 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 aknife inhispocket. At trial the prosecution further introduced evidenceof 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 jurywas allowed to hear defendant's tale. The jury was also given an instruction as to the use of flight evidence, fromwhich 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 

### - orprosecution. Gannv. 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 alsoMcCormick 

### - onEvidence, 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 itwas several months after the arrestand charges that defendant disappeared, the inference that defendant tried to escape arrest isnegated. However,we are not convinced that the evidencenegates the possibility that defendant was trying to avoid prosecution, since he disappeared on the day of trial. Thus, the immediacy element isnot at issue. It should be noted, however, that a defendantmust 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; Commonwealthv. Babbs (Pa. Sup. Ct. 1985), 499A.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. Hetestified that he became disoriented from hitting the trees and rocks as he was swept down riverwhile trying to escape. Once on dry land he hiked to Lolo Pass. (Theopposite direction fromMissoula, the place of trial.) Itwasmidday 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,calmand 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 evidenceby Officer Reed thatalthough the riverhad been searched repeatedly by the sheriff's department, even during low water periods, no evidence of a carwreckwas ever foundand defendant's car
was not retrieved. Officer Bell, an officer familiar with that area, testified that it would take five days and nights tohike the territoryallegedly coveredby the defendant on June 4,1986. Through the officer

## 's testimony,defendant

### 's story was discounted on severalpoints. In lightof 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 evidencewill notbe disturbed absenta showing of an abuse ofdiscretion. Cooperv. Roston (Mont. 1988), 756 P.2d 1125, 45 St.Rep. 978. The trial judge in thiscaseheard the defendant's testimony in a June 1986 hearing and held an in 

### - camera hearing in May 1987 at which the State made anadditional 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 inallowing the flight evidence. Prosecutors introducing questionable evidence to prove guilt beyond a reasonable doubt are inviting issues of reversible error. In the instantcase, it shouldbe 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 issueof immediacy, the flightevidencewasproper.

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 youmay take into considerationany testimony showing or tending to show flightby the defendant. This testimony may be considered by the jury as a circumstancetending 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 isproper when it is "relevantto evidence or issues in a case and when it is supportedby some evidence

or some logical inference from other evidence presented at trial.

### " Charlo, 735 P.2d at 281, 44 St.Rep. at 602.(Emphasisadded.) It is clear from the foregoingdiscussion of the evidence adduced at trial that this instruction was definitely supported by the evidence. Further, the instructionwas 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 isprobative value to flightevidence. "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 flightevidence. Judgmentaffirmed.We concur: A

{Justices 

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