No. 87-097 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA 

Plaintiff/Respondent, 

VS. 

SCOTT STEPHEN BRUSH, 

Defendant/Appellant, 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Custer 

The Honorable Arthur B. Martin, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Joe L. Hegel, Miles City, Montana, 

For Respondent: 

Honorable Mike Greely, Attorney General, 

Clay R. Smith, Assistant Attorney General, 

Helena, Montana, 

Keith D. Haker, Custer County Attorney, 

J. Dennis Corbin, Deputy Custer County Attorney, 

Miles City, Montana. 

Submitted on Briefs: July 1, 1987 

Decided: September 1, 1987 

Filed: SEP 1 - 1981J 

Clerk 
Mr. Justice William E. Hunt, Sr., delivered the Opinion of 

the Court. 

Appellant, Scott Stephen Brush, was convicted of sexual 

assault in District Court, Sixteenth Judicial District, 

Custer County, following a trial by jury. During the trial, 

defense counsel made a motion for a mistrial based on 

testimony introducing other crimes contrary to a pre-trial 

agreement. This motion was denied as was a similar motion 

for new trial and/or mistrial made after the jury verdict. 

Appellant appeals his conviction and the trial court's denial 

of his motions for mistrial and new trial. 

We affirm. 

Brush raises three issues on appeal. 

1. Did the District Court err in denying defendant's 

motion for mistrial after police officer testified to other 

crimes in spite of prior agreement and without the required 

Just notice? 

2. Did the District Court err in denying the 

defendant's motion for new trial and/or mistrial upon the 

grounds that the officer's testimony was prejudicial? 

3. Did the District Court err by applying the wrong 

standard for determining whether the defendant was prejudiced 

by the officer's testimony? 

On August 19, 1985, defendant Brush went to Bender Park 

located on the northeast side of Miles City where he struck 

up a conversation with a juvenile, J.L.O., age eight, 

accompanied by her eight month old brother. J.L.O. testified 

at trial that Brush asked her a lot of questions and then put 

his arms around her and rubbed her genital area when she bent 

over to place her brother in his stroller. She ran behind a 
building and when Brush did not pursue her, returned to the 

stroller, put her brother in it, and went to her home across 

the street. J.L.O. immediately told her mother that there 

was a man in the park who was asking her a lot of questions. 

Her mother then went over to the park, wrote down the license 

number of the defendant's orange van and got a general 

description of the defendant who was still in the park. She 

called the police. Officer Newby responded to the call and 

was approached by two other children at the park, W.B. Z. and 

R.Z. They described the defendant and told Newby that he had 

tried to touch both of them in their "private parts." At 

this time, J.L.O. arrived at the park and told the officer 

she had been touched in her "private parts" also. The 

defendant was eventually arrested after his van was 

identified and stopped at an intersection by other officers 

who found numerous opened and unopened beer bottles. 

Defendant admits talking to J.L.O. at the park but denies 

touching her. 

Brush was charged by information under S 45-5-502(l), 

MCA, on two counts of sexual assault against J.L.O. and 

W.B.Z. The counts were severed by order on December 20, 

1985. This case deals only with count one regarding the 

offense against J.L.O. Upon learning that the State would 

call W.B.Z. to the stand as part of their case in chief, 

defense counsel requested that the State be prevented from 

asking W.B.Z. questions relating to the charge in the severed 

second count. The county attorney orally agreed to this 

before trial. 

The controversy in this case surrounds the testimony 

given by Officer Newby. After relating the description of 

the defendant given by W.B.Z. and R.Z., the following 

occurred: 
Q. What other conversation did you have with the 

youth? A. I asked them basically what the problem 

was -- you know, did they have any problem with 

this man. The nature of the call was "bothering", 

so I then inquired of what was happening. 

Q. Did any of the youth explain to you? A. Yes. 

Q. Just continue, what occurred? A. Robin stated 

that the man was -- that he talked very nice and he 

tried to touch both of them in their private parts. 

Defense counsel's objection was sustained and the jury was 

directed to disregard any testimony concerning any other 

alleged offense. After the close of the State's case, 

defendant entered a motion for mistrial which was denied, as 

was a motion for new trial and/or mistrial made after the 

verdict came in. 

Appellant first contends that the State failed to 

conform to the procedural requirements of State v. Just 

(1979), 184 Mont. 262, 602 P.2d 957. The decision in that 

case requires that the prosecutor give reasonable notice to 

the defendant that he intends to introduce evidence of other 

crimes. Just, 602 P.2d at 963-64. The purpose of this rule 

is to insure that the defendant is fully informed of what 

crimes or charges he need defend against so that he will not 

be taken by surprise at trial. The trial court found that 

Newby's testimony had been inadvertent. Both the county 

attorney and defense counsel agreed at trial that Newby's 

testimony was not a planned part of the State's case. 

Indeed, the county attorney had fully instructed Newby 

regarding such testimony in accordance with the pre-trial 

agreement. We fail to see how Just applies to a case where 

the county attorney never intended to introduce evidence of 

defendant's other crimes and where the testimony was an 

unintentional response to a non-suggestive question as 
occurred here. Therefore, we conclude that no Just notice 

was required under these circumstances. 

Appellant next contends that the introduction of Newby's 

testimony was of "such an inflammatory nature" that the 

cautionary instructions given by the court "only served to 

reinforce the prejudicial effect in the minds of the jurors." 

The standard for establishing prejudice is whether a 

substantial right was denied. Section 46-20-701, MCA; State 

v. Gray (Mont. 1983), 673 P.2d 1262, 1266, 40 St.Rep. 2023, 

2027; State v. Wells (1983), 202 Mont. 337, 349, 658 P.2d 

381, 388. Only if there was a reasonable possibility that 

the inadmissible evidence might have contributed to the 

conviction is there reversible error. State v. Howell (Mont. 

1987), 734 p.2d 214, 217, 44 St.Rep. 542, 546; Gray, 673 P.2d 

at 1266; Wells, 658 P.2d at 388; State v. Lave (1977), 174 

Mont. 401, 571 P.2d 97. 

Here, Officer Newby's testimony was not purposely drawn 

out by the county attorney. Defense counsel agreed that it 

was an inadvertent slip. The testimony was neither graphic 

nor detailed and the county attorney made no effort to 

corroborate it. In addition, J.L.O.'s testimony was found by 

the trial court to be consistent with corroborating testimony 

and truthful. Under the above circumstances we find that 

even if there was error it was rendered harmless by the trial 

court's cautionary instructions to the jury. 

The general rule is that where the trial judge withdraws 

or strikes improper testimony from the record with an 

accompanying cautionary instruction to the jury any error 

committed by its introduction is presumed cured. State v. 

Smith (Mont. 1986), 715 P.2d 1301, 1308, 43 St.Rep. 449, 456; 

State v. Gray (Mont. 1983), 673 P.2d 1262, 1266, 40 St.Rep. 

2023, 2027; State v. Freeman (1979), 183 Mont. 334, 345, 599 

P.2d 368, 374. As we discussed in Freeman, the jury cannot 
be presumed to ignore their duties to respect the 

instructions of the court and to decide a case based only 

upon the evidence admitted. Freeman, 599 P.2d at 374-75. 

See also State v. Armstrong (1980), 189 Mont. 407, 428, 616 

P.2d 341, 353. The trial court gave three cautionary 

instructions admonishing the jury to disregard Officer 

Newby's comment. One was given immediately after defense 

counsel's objection. Another was given at the end of county 

attorney's redirect examination of Newby and a third was 

given in jury instruction no. 14 as follows: 

INSTRUCTION NO. 14 

Testimony has been given by Officer Newby that 

during his initial investigation that he was told 

by two children that the defendant had touched 

them. You are instructed to erase this testimony 

from your minds and not allow it to influence you 

in any manner in determining if the defendant is 

guilty or not guilty of the offense of sexual 

assault against a child, [J.L.O.]. 

Appellant argues that these repeated instructions only served 

to firmly fix Newby's remark in the minds of the jurors. 

This argument is without merit. Evidence of other crimes is 

often admitted by courts for limited purposes with a 

corresponding cautionary instruction to the jury. This 

practice has been expressly approved and provided for by this 

Court in Just. Just, 602 P.2d at 964. To recognize that 

juries can hear of other offenses and use proper restraint in 

considering them only for a particular purpose but cannot 

ignore them completely when told to do so is illogical and 

inconsistent. 

This case is very similar to the case of State v. 

Straight (1959), 136 Mont. 255, 347 P.2d 482, where the 

prosecuting attorney referred to the defendant's beating of 

"children" instead of the single child who was the subject of 
the assault charge. This Court held that any error resulting 

from this remark was promptly cured by the judge's 

admonishment to the jury to disregard the statement. 

Straight, 347 P.2d at 487. A similar result was demanded in 

State v. Liddell (Mont. 1984), 685 P.2d 918, 41 St.Rep. 1293, 

where a rape victim "blurted out," in departure from the 

established time sequence of her testimony, that the 

defendant had smoked a marijuana cigarette prior to the act 

charged. The State did not pursue this and we held that the 

evidence was made harmless by the trial court's cautionary 

instruction. Liddell, 685 P.2d at 925. Accordingly we hold 

that any error caused by Newby's inadmissible testimony was 

cured by proper admonishment of the jury. 

The third contention of appellant is that the trial 

court used the wrong standard in denying the defendant's 

motions for mistrial and motion for new trial. We do not 

agree. 

As stated above the standard for determining reversible 

error is whether there was a reasonable possibility that the 

inadmissible evidence might have contributed to the 

conviction. Gray, 673 P.2d at 1266. The trial judge noted 

in his order of November 10, 1986 that he found J.L.O.'s 

testimony credible and consistent with corroborating 

testimony and that he was satisfied that the jury convicted 

only on the admitted evidence. Our role as an appellate 

court is to determine whether as a matter of law the trial 

court abused its discretion in denying a mistrial under these 

circumstances. State v. Close (Mont. 1981), 623 P.2d 940, 

946, 38 St.Rep. 177, 183. To declare a mistrial there must 

be a manifest necessity to do so or the ends of public 

justice would be defeated. State v. Smith (~ont. 19861, 715 

P.2d 1301, 1308, 43 St.Rep. 449, 456; Close, 623 P.2d at 946. 

Similarly, to grant a new trial, the defendant must have been 
deprived of a fair and impartial trial or it is clearly 

within the interest of justice. See Gray, 673 P.2d at 

1265-66; State v. Rose (1980), 187 Mont. 74, 83, 608 P.2d 

1074, 1079. Because the trial court is in the best position 

to observe the jurors and determine the effect of 

questionable testimony it is given a latitude of discretion 

in its rulings on prejudicial evidence. See Gray, 673 P. 2d 

at 1266 and cases cited therein. 

This is not a case of prosecutorial misconduct which 

often forms the basis for a new trial. See Gray, 673 P.2d at 

1265-66. As stated earlier no prejudicial error was shown. 

Officer Newby's inadvertent statement was not graphic nor 

detailed and was not elaborated upon. Any prejudicial effect 

it may have had was promptly cured by the court's cautionary 

instructions to the jury. The trial judge did not abuse his 

discretion in denying the defendant's motions for mistrial 

and new trial. 

Affirmed. 

We Concur: ,'