NO. 93-033

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

STATE OF MONTANA,

Plaintiff and Respondent,

v.

DOUGLAS ROBERT BROOKS,

Defendant and Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District,

In and for the County of Hill,

The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Lawrence LaFountain, Attorney at Law,

Havre, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General;

Elizabeth L. Griffing, Assistant Attorney

General; Helena, Montana; David G. Rice,

Hill County Attorney, Havre, Montana

Submitted on Briefs: July 8, 1993

Filed:

i
Justice William E. Hunt, Sr., delivered the opinion of the Court.

Appellant Douglas Robert Brooks was convicted of sexual

assault following a jury trial and appeals from the judgment of the

District Court of the Twelfth Judicial District, Hill County,

claiming error in the court's failure to suppress evidence of prior

crimes.

We affirm.

The sole issue on appeal is whether the District Court erred

in denying Brooks' motion to suppress evidence of prior crimes. We

analyze this issue under the modified Just rule, as set forth in

State v. Matt (1991), 249 Mont. 136, 814 P.2d 52.

On March 23, 1992, Brooks was charged by information with a

sexual assault on an 11-year-old victim, W.J., allegedly occurring

on February 7, 1992, in Havre, Montana. On June 25, 1992, as

required by u, the State filed a notice informing Brooks that

evidence of a prior sexual assault committed by Brooks would be

introduced at trial. Brooks filed a motion to suppress this

evidence. The District Court denied the motion. On August 25,

1992, a jury found Brooks guilty of sexual assault. Brooks appeals

from the judgment on the issue of admission of the prior sexual

assault.

The prior crime introduced in Brooks' trial involved an

incident that occurred before his move to Havre. In May 1989,

Brooks took 13-year-old G.M. to Lake Chelan in Washington state

where they engaged in recreational activities, including swimming,

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during the day. Later that evening, Brooks sexually assaulted G.M.

In January 1990, Brooks was convicted in Washington of felonious

sexual contact with a minor.

After moving to Havre, Brooks became employed as a maintenance

man at a motel where he became friendly with the manager's

lo-year-old son, J.T. In addition to helping J.T. with his math,

Brooks also accompanied him to the Havre city pool which was

largely attended by 10 and 11-year-old boys. Brooks would

frequently play with the boys in the pool by flipping them into the

water. In fact, complaints were made to the pool management that

Brooks was paying too much attention to the young boys. An

off-duty police officer investigated these complaints and found

that Brooks had a tendency to pay more attention to the young boys

than to the girls at the pool.

One day Brooks took both J.T. and his friend, W.J., swimming

at the pool. Brooks flipped the boys in the water, played several

pool games and allowed them to ride on his back for about 30

minutes or an hour. According to W.J., Brooks approached him from

behind and squeezed his buttocks, at which time W-J. swam away in

order to inform J.T. Later on, according to W.J., Brooks

approached him again, and this time squeezed W.J.'s penis. J.T.

testified that Brooks later approached him also and squeezed his

buttocks.

The next week, at J.T.'s birthday party, W.J. became upset

when informed that Brooks might stop by. According to W.J.,
Brooks had asked him whether or not he intended to inform the

police about the swimming pool incident, and W.J. answered that he

would not. Brooks contends that W.J. approached him with sexual

advances and that he merely tried to counsel W.J.

Did the District Court err in denying Brooks' motion to

suppress evidence of prior crimes?

As indicated, we will analyze this issue in light of the

four-part modified Just rule that provides:

(1) The other crimes, wrongs or acts must be

similar.

(2) The other crimes, wrongs or acts must not be

remote in time.

(3) The 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 with such

character: but may be admissible for other purposes,

such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of

mistake or accident.

(4) Although relevant, evidence may be excluded if

its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues,

misleading of the jury, considerations of undue delay,

waste of time, or needless presentation of cumulative

evidence.

Matt -.--.--I 814 P.2d at 56.

Brooks' actions show a systematic plan to entertain boys or

adolescents in a recreational setting in which they feel

comfortable and then, immediately or soon after, to catch them

off-guard and unexpectedly sexually assault them. Although the

time Brooks spent befriending G.M., J.T., and W.J. before sexually

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assaulting them varied with each victim, the plan was nonetheless

systematic in that swimming or water games were used as a prelude

to the assaults, and the boys were each in a vulnerable position

because they wore fewer clothes while they were swimming, or in

G.M.'s case, receiving a back rub, than they would have in a more

formal setting.

Applying the first element of the modified Just rule to the

case at bar, we conclude that the sexual assault committed by

Brooks in Washington against G.M. is similar to the sexual assault

committed against W.J. in Havre. As we stated in State v. Gilpin

(1988), 232 Mont. 56, 64, 756 P.2d 445, 449, the prior act does not

need to be identical to the charged offense. In the case at bar,

the two acts are extremely similar.

Brooks took G.M. swimming at a lake in order to become closer

to him. The sexual assault on G.M. occurred after the swim in the

evening while Brooks gave G.M. a back rub which eventually turned

into an excuse to rub G.M.'s buttocks and penis. In the incident

involving J.T. and W.J., Brooks took both boys swimming at a pool

in order to strengthen his friendship with J.T. and become better

acquainted with W.J. During the water games, Brooks unexpectedly

assaulted both J.T. and W.J.

The similarities are obvious. In both incidents, Brooks

entertained the boys in a recreational setting around water and

swimming as a prelude to his sexual assaults. Brooks claims that

the acts are not similar because of the difference in location. We

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disagree. Although the assault of G.M. occurred after a swim, as

opposed to the assault on W.J. which occurred while still in the

water, both of the assaults occurred in or near swimming areas and

after Brooks had engaged in recreational activities with the boys

in order to appear to be their friend, and when the boys were more

vulnerably dressed, either in swim clothing or bedtime clothing.

Even though Brooks had just met W.J. and had only entertained him

in the pool for a short time before assaulting him, W.J. assumed

that Brooks could be trusted since Brooks had already gained the

trust of W.J. 's close friend, J.T., by taking J.T. on recreational

outings. Therefore, Brooks, through the trust he had already

gained with J.T., was able to put W.J. at ease with less effort

and, subsequently, take him by surprise with his sexual assault.

Brooks claims that he learned in therapy that he was only

attracted to 13 and 14ayear olds, rather than 10 and 11 year olds.

The problem with this argument is that it focuses on age, as

opposed to physical development. There is often no clear

difference in physical development among children in this age

range. Brooks failed to present specific evidence of any

developmental differences between G.M. and W.J. that caused him to

only be attracted to G.M. and not to W.J. G.M. had turned 13 just

one month prior to the sexual assault in Washington state, while

W.J. turned 11 soon after the sexual assault in Havre. The age

difference between G.M. and W.J., without more explanation, is not

sufficient to warrant a suppression of such a similar crime.

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The District Court did not err in finding sufficient

similarity in the two crimes to meet the first element of the

modified Just rule.

Regarding the second element of the modified Just rule,

nearness in time between the two crimes, we conclude that the three

year time period between the prior crime and the assault against

W.J. is not so great as to render the evidence of the prior crime

inadmissible.

In State v. Medina (lPPO), 245 Mont. 25, 30, 798 P.2d 1032,

1036, we held that the range of three to five years between the

prior conviction and the charged crime was "near enough in time to

be considered probative." Although the facts differ in the case at

bar, when considering nearness of time, "each case must be examined

in light of its unique set of facts." Medina, 798 P.2d at 1036.

In Medina, a case in which the victim of the prior and charged

crime was the defendant's daughter, in considering the remoteness

of the prior crime, we took into account the fact that the

defendant did not have the "opportunity" to be alone with the

daughter for several years between the prior crime and the charged

crime due to the strict rules imposed by the family. Medina, 798

P.2d at 1036. Similarly, in the case at bar, the defendant did not

have the opportunity to be in contact with young or adolescent boys

for over a year because he was incarcerated or under the

supervision of the Washington State Department of Corrections.

Defendants' abstention from sexual abuse because of a lack of

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opportunity will not prevent this Court from taking into account a

prior crime because of remoteness in time from the present crime.

The District Court did not err in finding that the prior crime

was not too remote to be admitted under the second element of the

modified Just rule.

The third element of the modified Just rule is that the

evidence of crimes is admissible, among other reasons, to show a

tendency to establish a common scheme, plan, or system, as opposed

to being admissible to prove the character of a person in order to

show action in conformity therewith. Brooks' tendency, as a

prelude to sexual assault, to entertain young boys in a

recreational setting in order to make them feel comfortable, and

then catch them off-guard by sexually assaulting them, constitutes

a common scheme or plan as noted above.

The District Court did not err in finding that Brooks

developed a common scheme to an extent appropriate to admit the

prior crime under the third element of the modified Just rule.

Finally, analysis of the fourth element of the modified Just

rule, leads us to conclude that the probative value of the prior

crime is not outweighed by the prejudice to the defendant.

Although it is inevitable that the introduction of a prior crime

will have some prejudicial effect on a defendant, we held in State

v. Eiler (1988), 234 Mont. 38, 51, 762 P.2d 210, 218, that when the

prior crime meets the first three elements of the Just rule, these

elements combine to give "great probative weight to the evidence of

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prior acts." Accordingly, we conclude that because the prior crime

met the first three elements of the Just rule and the modified Just

rule, the cumulative effect is that the probative value outweighs

the prejudice to Brooks.

We hold that the District Court did not err in denying Brooks'

motion to suppress evidence of prior crimes. We affirm.

We concur:

7’ ’

n I

Chief Justice \

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August 24, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following

named:

LAWRENCE A. LaFOUNTAIN

Attorney at Law

P.O. Box 1532

Havre, MT 59501

HON. JOSEPH P. MAZUREK, Attorney General

Elizabeth L. Griffmg, Assistant

Justice Blgd.

Helena. MT 59620

DAVID G. RICE

Hill County Attorney

P.O. Box 912

Havre, MT 59501-0912

ED SMITH

CLERK OF THE SUPREME COURT

STAE OF MONTANA