No. 93-409 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

STATE OF MONTANA, 

plaintiff and Appellant, 

V. 

JEFFREY LAYNE GARN, 

Defendant and Respondent. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis and Clark, 

The Honorable Thomas C. Honzel, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Hon. Joseph P. Mazurek, Attorney General, 

Cregg W. Coughlin, Assistant Attorney 

General, Helena, Montana 

Mike McGrath, Lewis and Clark County 

Attorney, Helena, Montana 

For Respondent: 

Edmund F. Sheehy, Jr., Cannon & Sheehy, 

Helena, Montana 

Filed: 

Submitted on Briefs: November 18, 1993 

Decided: March 24, 1994 

i 

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

Appellant State of Montana appeals from the order of the First 

Judicial District Court, Lewis and Clark County, granting a new 

trial to defendant Jeffrey Layne Garn for admitting irrelevant 

evidence at trial, based on State v. Keys (1993), 258 Mont. 311, 

852 P.2d 621, which was decided between Garnls conviction and 

motion. 

We affirm. 

The sole issue raised on appeal is whether the District Court 

erred when it granted the defendant a new trial. 

In August and early September 1992, 15-year-old K.M. was 

staying with her father in Helena while her mother moved from Reno, 

Nevada, to Spokane, Washington. K.M.'s mother was to arrive in 

Helena on September 2, 1992, and K.M. was to return to Spokane to 

reside with her. K.M. did not want to live with her mother because 

of conflict in their relationship. On September 2, 1992, K.M. 

decided to run away to avoid returning to Spokane with her mother. 

She gathered her clothes into a duffle bag and hid them in her 

father's home. Then she went to the mall to see T.R., a young man 

she had met the night before who worked at a record and video 

store. K.M. told T.R. that she was 15 years old and had run away 

from home and needed a place to stay. T.R. told her that he could 

not provide her with a place to stay. He introduced her to Garn, 

the manager of the record and video store. T.R. told Garn that she 

was a runaway and needed a place to stay and left them alone to 

talk. Sometime during their conversation, Garn showed K.M. a 
brochure regarding a modeling contest. Garn asked her if she was 

interested in modeling for photographs that could be entered in the 

contest, and told her she could win $500. K.M. agreed to model for 

Garn at his house that evening. K.M. testified that Garn did not 

tell her that nudity would be involved in the modeling. 

After the record and video store closed, K.M. met Garn at the 

outside entrance to the mall. Before they drove to Garn's house, 

he drove her to her father's house to get her duffle bag. After 

arriving at Garnts house, the two sat on the couch in the living 

room. K.M. testified that Garn told her to undress, and that she 

was hesitant and confused, and was unsure whether she should run 

and try to get away, or do what she was told. K.M. testified that 

she went to the bathroom and put on a slip that Garn had given her, 

but left her underwear on. She returned to the living room and sat 

on the couch by Garn. They talked about nudist colonies that Garn 

had visited. Then Garn asked her to take off her top. K.M. 

testified that although Garn did not threaten her, she was 

intimidated by him. She took off her top and Garn fondled her 

breast. K.M. testified that she shook her head no. Garn testified 

that he had asked her if he could touch her breast and that she 

said "enjoy it." He then asked her to remove the rest of her 

clothing and turn around in a circle for him. K.M. complied with 

his request. K.M. testified that after Garn took two polaroid 

pictures of her, he exposed himself to her, and then had sexual 

intercourse with her by penetrating her vagina with his fingers. 

K.M. told Garn that she was tired and asked to stay at his home or 
go somewhere else. Garn agreed to pay for a motel room for her to 

stay in. On her way out, she picked up the photographs to take 

with her. Garn took them from her saying she would not need them 

because he was choosing someone else for the photo contest. He 

unsuccessfully tried to burn and cut the photographs. Garn then 

drove her to a motel and paid for a room for her to stay in. Since 

early that evening, her father had been searching for her and 

reported her absence to the police. She called her father who 

immediately drove to the motel and brought her home. 

On December 8, 1992, Garn was charged with two felonies, 

sexual intercourse without consent, and deceptive practices. Prior 

to trial, the District Court dismissed the deceptive practices 

charge. On January 25, 1993, the State gave notice to Garn 

pursuant to the notice requirements of State v. Just (1979), 184 

Mont. 262, 602 P.2d 957, modified in State v. Matt (1991), 249 

Mont. 136, 814 P.2d 52, that it intended to introduce evidence of 

other crimes, wrongs, or acts involving Garn9s convictions of 

unlawful transactions with minors. The State argued that the other 

crime or acts evidence were relevant to determine whether K.M. 

consented to the sexual contact by demonstrating Garn9s plan or 

common scheme, whereby he would entice teenage girls to pose nude 

with promises of money and modeling opportunities, thus proving any 

consent given to him by K.M. was achieved by deception and invalid. 

Garn opposed the evidence, arguing that the evidence could not meet 

the similarity requirements of the modified Just analysis, and 

therefore, was inadmissible character evidence. 
The other crimes or acts evidence involved testimony by two 

teenage girls, S.M. and A.W., who modeled for Garn for a photo 

contest to promote his record and video store. S.M., who was 16 

years old, testified that she knew Garn because she worked in the 

mall and would see him at the record and video store. She 

testified that he would often tell her dirty jokes and tell her 

about nudist colonies he had visited. On October 19, 1992, at the 

record and video store, Garn promised to pay the girls $50 to model 

for him at his house the next day, and also promised to provide 

them with alcohol while they modeled. The three met at Garn's 

house the next afternoon. After talking a while, Garn gave the 

girls wine coolers and had them change into different attire that 

they had brought with them. As the girls danced to music, Garn 

videotaped and took polaroid pictures of them. Later, Garn urged 

the girls to remove more clothing and directed the girls actions, 

while continuing to take pictures of them. Eventually, the girls 

were naked except for their underwear. 

S.M. had to leave for work at five o'clock so the girls began 

dressing. Garn asked A.W. to stay and continue modeling for him, 

but A.W. made excuses to leave. When the girls left they took a 

couple of the polaroid photographs with them. Later, they tried to 

destroy them and threw them in the garbage. S.M.'s mother learned 

of the incident, retrieved the photographs, and notified 

authorities. Garn was charged with unlawful transactions with 

minors for supplying the girls with alcohol, to which he pled 

guilty. 
On March 17, 1993, the District Court allowed the other crimes 

or acts evidence at trial. After hearing the evidence and 

testimony, the jury found that Garn was not guilty of sexual 

intercourse without consent, but found him guilty of sexual 

assault. 

After Garnls conviction, and before his motion for a new 

trial, this Court decided m, 852 P.2d 621. Garn requested a new 

trial arguing that Keys supported his contention that the other 

crimes or acts evidence allowed at trial were not relevant to prove 

any issue at trial. The District Court granted his motion for a 

new trial based on stating that the evidence was not 

sufficiently similar to the present charges concerning sexual 

contact without consent because the evidence did not involve sexual 

assault or sexual advances toward the girls. Therefore, the court 

found the evidence was not relevant under Rule 404(b), M.R.Evid. 

Did the District Court err when it granted defendant a new 

trial? 

The State contends that the District Court abused its 

discretion when it granted Garn a new trial by finding the other 

crimes or acts evidence allowed at trial did not meet the modified 

Just requirements. The State argues that the evidence was 

necessary to prove the central issue in dispute, that K.M. did not 

consent to sexual intercourse with Garn, and that the requirements 

under the modified Just rule had been met. The State's purpose for 

admitting the other crimes or acts evidence was to show motive, 

intent, plan, and common scheme, which it contends was relevant for 

6 
the determination of whether K.M. consented to the sexual contact 

by demonstrating a plan or common scheme whereby Garn would entice 

teenage girls to pose nude with promises of money and modeling 

opportunities, thus rendering any consent invalid. The other 

crimes evidence involved Garn's conviction for supplying alcohol to 

the underage girls. 

Garn opposed the evidence arguing that the evidence could not 

meet the similarity requirement under the modified Just rule 

because his prior crime of supplying the teenage girls with alcohol 

was not similar to the charges in the present case involving sexual 

intercourse without consent. Further, the other acts evidence did 

not involve any sexual contact or advances. Garn argues that the 

District Court's decision was correct when it determined that the 

evidence was not relevant to prove any issue in dispute. He argues 

that the evidence was inadmissible character evidence. 

Section 46-16-702(1), MCA, provides that a district court may 

grant a motion for a new trial if required in the interest of 

justice. The order granting or denying a motion for a new trial 

will be upheld by this Court absent an abuse of discretion. State 

V. Staat (1991), 251 Mont. 1, 9-10, 822 P.2d 643, 648; State v. 

Goodwin (1991), 249 Mont. 1, 17, 813 P.2d 953, 963. 

The basis for a trial court's decision admitting or excluding 

evidence is whether the evidence is relevant to the issues at 

trial. Relevant evidence means "evidence having any tendency to 

make the existence of any fact that is of consequence to the 

determination of the action more probable or less probable than it 

7 
would be without the evidence." Rule 401, M.R.Evid. Further, 

relevant evidence may be excluded if the probative value of the 

evidence is substantially outweighed by the prejudice to the 

defendant. Rule 403, M.R.Evid. Rule 404(b), M.R.Evid., provides 

that: 

Evidence of other crimes, wrongs, or acts is not 

admissible to prove the character of a person in order to 

show action 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. 

To guard against admission of inadmissible character evidence, 

this Court has provided a four-part analysis which requires that: 

(1) The 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. 

I Matt 814 P.2d at 56. Further, the party offering such evidence 

must comply with the procedural precautions in Just. Matt, 814 

P.2d at 56. In this case, the parties do not dispute that the 

proper procedural precautions were taken. 

The District Court allowed the evidence at trial after 

applying the modified Just analysis and finding that the evidence 

met all four parts of the analysis. The court found a similarity 
between the acts specified in the notice to Garn and the crime 

charged because all the acts involved young girls, were of a sexual 

nature, and involved a discrepancy in positions of power of the 

various actors. The court found the evidence was not remote in 

time, having occurred a year earlier, and was admissible to show 

motive, intent, plan, and common scheme. Further, the court found 

that although this type of evidence is always prejudicial, the 

probative value of the evidence substantially outweighed the danger 

of unfair prejudice or confusion of the issues. 

The State contends that our recent opinion in State v. Brooks, 

(Mont. 1993), 857 P.2d 734, 50 St. Rep. 967, is most closely 

analogous to this case. Brooks was convicted of sexually 

assaulting an 11-year-old victim in Havre, Montana. At trial, the 

State introduced other crimes or acts evidence involving a prior 

conviction whereby Brooks sexually assaulted a 13-year-old boy in 

Washington state. In both the charged offense and the other crimes 

evidence, Brooks used a systematic plan to entertain boys in 

swimming or water games, where he would play with them, catch them 

off guard, and then sexually assault them unexpectedly. Brooks, 

857 P.2d at 735-36. Similarly, the State argues that Garn's other 

acts evidence was relevant to prove that Garn had sexual contact 

with K.M. without her consent. The State contends the evidence of 

Garn's plan, scheme, or method of approaching young girls and 

offering them modeling, prizes, and money demonstrated that he had 

ability and capacity to exercise control and authority over the 
girls, therefore, inferring that the girls were deceived by him, 

proving that K.M.'s apparent consent was invalid. 

Brooks is distinguishable from the present case. The charged 

offense in Brooks was sexual assault of a young boy. The prior 

crime or acts evidence admitted at trial involved Brook's prior 

conviction of sexual assault of another boy in Washington state. 

The crime of sexual assault in Washington state, and the systematic 

plan used to sexually assault the boy in Havre, were obviously 

similar. Brooks, 857 P.2d at 736. Here, the charged offense was 

sexual intercourse without consent. However, the other crimes or 

acts evidence did not involve any sexual touching or sexual 

advances toward the girls. 

In granting the new trial, the District Court relied on Kevs, 

which involved the question of whether or not the defendant's prior 

act of indecent exposure and assault was admissible to prove sexual 

intercourse without consent. Similarly, the issue in the present 

case is whether Garnls prior crime of giving alcohol to underage 

girls, and his prior acts of enticing them to pose nude with 

promises of money and modeling opportunities, were admissible to 

prove Garn subjected K.M. to the same scheme to coerce K.M. to 

consent to sexual contact. The ~istrict Court applied the 

four-part Just analysis and found the evidence could not meet the 

similarity requirement that the evidence have some relevance to 

prove an issue in dispute. The court, in its memorandum and order, 

quoted the following paragraph in Keys as its basis for granting a 

new trial : 
While there is no rigid rule for determining when conduct 

is sufficiently similar, the determination of similarity 

depends on whether that conduct has some relevance to 

prove an issue in dispute. We reiterate that in this 

case the only issue before the jury was whether N.B. 

consented. We do not find that the indecent exposure 

incident, followed by an apology from Keys and the fact 

that he left P.B. alone, is similar or relevant to 

determine what occurred between N.B. and Keys. The two 

incidents are so completely different in surrounding 

circumstances, acts committed, and victims, that we 

cannot reasonably conclude that one is probative of the 

other. 

The issues in the present case were whether Garn had sexual 

intercourse without consent; whether Garn reasonably believed that 

K.M. was older than 16; and whether Garn subjected K.M. to sexual 

contact without her consent. The District Court reasoned that the 

prior crimes or acts did not present facts that Garn touched either 

of the two girls or that he made any sexual advances toward them, 

therefore, the evidence was not similar to the present case, where 

K.M. alleged that Garn sexually assaulted her. The court found 

that the prior crime evidence whereby Garn supplied alcohol to 

underage girls, and the prior acts evidence where Garn enticed the 

two girls to pose naked for him while he photographed them, were 

not similar or relevant to determine whether Garn subjected K.M. to 

sexual contact without her consent. We agree with the District 

Court. Garn's prior crimes or acts are not sufficiently similar or 

relevant to prove sexual intercourse without consent or sexual 

assault, and the evidence is inadmissible character evidence. 

In m, we cited State v. Crist (l992), 253 Mont. 442, 833 

P.2d 1052, where we held that evidence of the defendant showing a 
young girl pornographic magazines and enticing her to dress in a 

nightgown were not sufficiently similar to a charge of sexual 

abuse. -, 852 P.2d at 624-25. Rather, the evidence was 

inadmissible character evidence which would tend to distract the 

trier of fact from the main issue at trial of what occurred on the 

occasions charged. -, 852 P.2d at 625. We concluded that the 

innuendos that could be drawn from the evidence in Crist, and also 

from the evidence in -, tended to go to the defendants' 

character and their propensity to act in conformity with the 

evidence. w, 852 P.2d at 624-25. Here, innuendos from Garnls 

prior crime and acts could also tend to go to his character and his 

propensity to act in conformity with the evidence. Therefore, the 

prior crimes and acts evidence could have distracted the jury from 

the main question at trial of whether Garn had sexual contact with 

K.M. without her consent. 

In sum, we do not find enough similarity between the acts to 

conclude that the crime of supplying alcohol to underage girls and 

the prior acts enticing two girls to pose naked for photographs 

tend to prove whether K.M. consented. The District Court did not 

abuse its discretion by granting Garn a new trial. 

Affirmed. 

Justice 
We concur: 
Justice Fred J. Weber dissents as follows: 

The majority concluded that Garn's priar crimes or acts are 

not sufficiently similar or relevant to prove sexual intercourse 

without consent or sexual assault, and the evidence is inadmissible 

character evidence. I disagree with that conclusion. 

As pointed out in the majority opinion the issues are whether 

Garn had sexual intercourse without consent, whether Garn 

reasonably believed K.M. was older than 16, and whether Garn 

subjected K.M. to sexual contact without her consent. The majority 

relies upon State v. Keys (1993), 852 P.2d 621, 50 St.Rep. 547, and 

concluded that innuendoes from Garn's prior crimes and acts could 

also tend to go to his character and his propensity to act in 

conformity with the evidence and that such evidence could have 

distracted the jury from the main question at trial. The majority 

then concludes that it did not find sufficient similarity between 

the acts to conclude that the crime of supplying alcohol to 

underage girls and enticing them to pose nude for photographs tends 

to prove whether K.M. consented or not. The position in that 

regard is set forth in my dissent in Keys and I will not restate 

the same. I do suggest there has been an improper focus on the 

actual issue for consideration in this opinion. 

I believe that the majority has disregard paragraph (1) of the 

Modified Just analysis which states: 

(1) The crimes, wrongs or acts must be similar. 

In substance the majority has concluded that the crimes must be 

similar before there can be an admission under the Modified Just 
Rule. As held in numerous other cases, the evidence may be 

admissible even though it does not consist of crimes or wrongs and 

consists only of "acts." 

The acts on the part of Garn with regard to K.M. showed that 

he persuaded her to take her clothing off and to be photographed 

before proceeding further. In a similar manner, the evidence as to 

S.M. and A.W. established that after Garn had them change into 

different attire he had them dance while he took polaroid pictures 

and urged the girls to remove more clothing while he continued to 

take pictures. Up to that point it is clear that the acts 

committed against the three girls were similar and almost identical 

in nature. The evidence further showed that Garn attempted to 

persuade A.W. to stay and continue modeling for him, but she 

refused to do so. In the present case, Garn proceeded further, and 

based upon the evidence submitted at trial engaged in sexual 

intercourse without consent with K.M., reasonably believing that 

she was older than sixteen, and subjected K.M. to sexual contact 

without her consent. It is true that the crimes with which Garn 

was charged could not have been charged in connection with his 

conduct with S.M. and A.W. It is apparently that difference in 

conduct which leads the majority to conclude that Garn's prior acts 

are not sufficiently similar to prove sexual intercourse without 

consent or sexual assault, and the evidence is therefore 

inadmissible. I believe the conclusion of the majority ignores the 

express wording of the Modified Just Rule which in paragraph (1) 

does not limit the similarity to crimes only, but allows the proof 
if "acts" are similar. The acts which are a significant part of 

the whole transaction in both cases are similar. Under previous 

cases, the evidence would have been admitted and I believe should 

have been admitted in this case. 

I disagree with the effective narrowing of the Modified Just 

Rule. I would reverse the granting of a new trial.