No. 85-262 INTHE SUPREME COURT OF THE STATE OF MONTANA 1986

STATE OF MONTANA, Plaintiff and Appellant,

-vsT. h7. 

### , Defendant and Respond.ent.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and forthe County of Yellowstone, The Honorable Robert Holmstrom, Judge presiding.

COUNSEL OF RECORD:

For Appellant: Mike Greely, Attorney General, Helena, Montana Kimberly A. Kradolfer argued, Asst. Atty. General Sherry Petrovich Stadlerargued, Legal Intern for Attorney General, Helena, Montana Harold Hanser, County Attorney, Billings, Montana Teresa McCann O'Connor argued, Deputy County Attorney

For Respondent: John Adams argued, Billings, Montana

Submitted: January 16, 1986 Decided: February 25, 1986

Filed: 

## FEB251986

Clerk

### Mr. Justice JohnConway Harrison delivered the Opinion of the Court.

This is an 

### interlocutory appeal filed by the State of Montana after the District Court granted defendant's motion in limine precluding the State from using in any way defendant's Youth Court records and from offering or attempting to offer any evidence of alleged prior offenses which occurred while the defendantwas a minor. We reverse and remand for trial consistent with the holding in this opinion. The defendant, T. W., is chargedwith incest, pursuant to S 

### 45-5-507, MCA. This offense was committed April 2, 

### 1984, against his fifteen year old sister who is developmentally disabled and functions at an IQ 

### level of about 81. 

### Prior to this incident, the victim had been placed in various foster homes because her mother was having mental problems. She spent weekends in her mother's home. During

one of theseweekend visits,T. W. took her intoher mother's bedroom, pushed her face down on the bed with his hand over her mouth so she could not scream and pressed his erect penis againsther buttocks to stimulatehimself. When theirmother discovered them,thevictimwas crying. This incident was reported to the Department of Socialand Rehabilitation Services (SRS)

### but no chargeswere filed. The matter was disposed of informally, ra.ther than being adjudicated in Youth Court. The victim's foster care was continued. T. W. 

### was given the opportunity to join theArmy and did so in March, 1981. The victim then returned home pursuant to courtorder.When T. W.'s tour of duty ended in March, 1984, he returned to Montana, to live with an aunt. He visited his mother April 2 when he again molested the victim after following her into her bedroom. He fondled the victim's breasts and pushed hishands intoher pants. He told her not to tell anyone. She reported the incident to school personnel who reported to SRS and law enforcementpersonnel. T. W. denies the offense and has offered to join the Navy. Defense counsel filed itsmotion in limine to preclude the State from using evidence of any incidents prior to the

one at issue. The State filed a notice of intent to rely on evidence of other crimes pursua.ntto Rule 404(b) M.R.Evid. Defendant'smotion in liminewasgranted. The issues presented forappealare:

(1) Whether the Youth Court Act prohibits the introductionof acts committedby the defendant when hewas a juvenile. (2) Whether thepast act is admissibleasother crimes evidence under Rule 404(b)

## , M.R.Evid., and State V. Just

(1979),184Mont. 262, 602P.2d 957. TheMontana Youth Court Act does not prevent the mother from testifying. The testimony at issue here concerns defendant's mother relating what she observed of defendant on other occassions. The State does not seek to use any statements made by 

### a participant during a juvenile proceeding. The applicable statute is 5 41-5-402,MCA,whichprovides: An inciminating statement relating to any act or omission constituting delinquency or need of supervision made by the participant to the person giving counsel or advice in the discussions or conferences incident thereto may not be used against the declarant in any proceeding under this chapter, nor may the incriminating statementbe admissiblein any criminal proceeding against the declarant. Since no statement of a "participant" ishere invof.ved, the testimony given by the mother of the defend.ant is not privilegedunder 

### 5 41-5-402, MCA. This Court recognizes that: Generally, evidence of other offenses or of other similar acts atother times is inadmissible for the purpose of showing thecommission of the particular criminal offense charged. [Citations omitted.] The reason is that the defendant is entitled to be informed of the offense charged so that he need prepare his defense only tothat particular offense. Proof of other offenses subjects him to surprise and to a defense of multiple collateral or unrelated issues. [Citations omitted.] This rule applies to evidence of other offenses regardless of whether defendant was actuallycharged with the other offense. [Citations omitted.

### 1 Just, 184Mont. at267-68, 602 P.2d at960. There is an important exception tothis general rule, which 

# . . . in thisjurisdiction, is of ancient lineage. Simply put, the evidence of prior sexual acts by a defendant and a [victim] isadmissiblein a trialfora sexualoffense

### [:I

(1) When similar acts with the same prosecuting witness areinvolved; (2) When similar actsarenot tooremote intime; and (3) When evidence of other offenses tends toestablish a common scheme, plan or system, where such other offenses are similar to, closely connected with and not too remote from the one charged, and where they are so that the proof of one tends to establish the other. [Citations omitted.] Just, 1-84Mont. at267-68, 602 P.2d at960. The rule and the exception is codified inRule 404(b)

## ,

### 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 therewith. It may, however, be admissible forother purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The Commission Comment to Rule 404(b)

## ,M.R.Evid, is clear. The commission intended "that there be no change in the admissibility of such evidence under existing Montana law.I' In order to protect defendants in criminal cases, the potentially prejudicial evidence of other crimes orwrongful acts is weighed against itsprobativevalueby applying three factors identified in Statev. Jensen (1969), 153 Mont. 233, 239, 

### 455 P.2d 631, 634,and reiterated in Just, supra. The fourth element was added and applied in Just. These four elements have come to be known as the "Just test" or "Just formula" and must be applied before allowing evidence of a defendant's prior sexual acts a.gainstthe samevictim. The order of the District Court granting defendant's motion in limine is bottomed: on application of only one element of the Just test and the Youth Court Act. As noted above the Youth Court Act is not applicable in this case. While failureofquestioned evidence to meet only one element of the Just test is not sufficientto refuse its admission, a decision to admit the evidence should not be made lightly. The four factorsmust be considered together. The victim in this case had. been molested by her brother four yearsprior to the incident which is the object of this action. The lower court found this lengthof time to be too remote, citing State v. Hansen (1980), 187 Mont. 91, 608 P.2d 1083, where the Court found two acts, two and one-half years apart, were too remote and therefore notadmissible. However, the Court also concluded the sequence of evidence had no distinctive qualities that distinguished the acts from other rapes, nor did the crimes tend to establish a common scheme, plan or system. Hansen, 187 Mont. at 97, 607 P.2d at 1086-87. If none of the elements

are met, the probative value of the evidence is not substantially outweighed by the prejudice to the defendant and the evidence can not be admitted. Hansen, 187 Mont. at 1.00,608 P.2d at 1088. Hansen does not hold that failure to meet only one element of the Just formula deems the prejudicial effect on the defendant sufficient to refuse admissionofprior acts. The lower court in this case applied only the element of remoteness to the facts. "The objection that evidence is too remote is directed to the d.iscretionof tke court and is

a matter that goes to the credibility of the evidence rather than to its admissibility.'' Statev. Saterfield (1943), 114 Mont. 122, 127, 132P.2d 372, 373-74; Statev. Nelson (1961), 139 Mont. 180, 186, 362 P.2d 224, 228; State v. Fitzpatrick (1980), 186 Mont. 187, 209, 606 P.2d 1343, 1355; State v. Doll (Mont. 1985), 629 P.2d 473, 476, 42 St.Rep. 40, 44. Thedeterminationof a trial judge that evidence is too remote to be relevantwill not be reversed in the absence of clear proof of an abuse of that discretion. Nelson, 139 Mont. at 186, 362 P.2d at 228. In this instance the lower court's determination tha-t the previous incident was too remote to be admissible is error. Admission of evidence cannot be denied solely on the fact it was not near in time to the incident in question. Factors other than mere lapse of time must be determined by the circumstancesof the case. Satterfield, 114 Mont. at 127, 132 P.2d at 373;Nelson, 139Mont. at 186, 362 P.2d at 228; Fitzpatrick, 186 Mont. at 209, 606 P.2d at 1355;Doll, 629 P.2d at 476, 42 St.Rep. at 44. The Wisconsin Supreme Court found when analyzing the probative value of 

### a prior incident that remoteness in point of time "does not necessarily render evidence irrelevant

# . .. " Sa-nford

### v. State (Wis. 1977), 250 N.W.2d 348, 352. Place and circumstances also must be considered. The Wisconsin ca.se involved the rape of a woman who was accosted by the suspect after she had exited a public bus. He asked her innocuous questions to get h.erattention, then approached her frombehind, putwhat he saidwas a gun inher back, took her to a garage where he ordered her to remove her jacket and lie down on it, and committed an act of rape on her. In an incident occurring one and one-half years earlier, a person identified as the same defendant had followed this pattern of behavior almost exactly. The court allowed the evidence of the earlier incident to be admitted to show identity, because itwas similar in character to the

case being tried. However, the court also said evidence cannotbe admitted, when the lapsed time is so great as to negative all rationale or logical connection between the facts sought to be proved and the remote evidence offered in proof thereof. Sanford,250N.W.2d at 352. We do not find in the case at bar that the evidence is

so remote as to have no evidentiary value. While the actuallength of time between the two incidentswas four years, the opportunity foran encounterbetween T. W. and his sisterdid not reoccur during that four year period. If in fact the second alleged incident did occur, it occurred at the first

### opportunity, making the actual time period between the two incidents less significant. The reasoning of the Wisconsin Court is persuasive andwe adopt it:



# . . . [Alnyissueas to remotenessof the prior incident is almost completely diffusedby the fact thatduring the time gap between the prior incident and the rape, defendant wa.s in confinement in a correctionalinstitution. Sanford,250 N.W.2d at 352. Because of the developmental disability of the victim, extraordinary care must be exercised in deciding whether or not to admit evidenceofT. W.'s previous sexual conduct with her. The State cannot expect routine admissionsofpast acts anymore than the defendant can rely on their automatic exclusion for any reason other than the Just exceptions. While the Court is mindful that the exceptions can swallow the rule,particularly in a case such as this one,where the mental capacity of thewitness is impaired, those exceptions must be adhered to scrupulously to assure fairness to both parties. In this case both actswere sexual innature. The acts occurred in the victim's bedroom or one she sharedwith her mother. The act in question occurred at the first opportunity after the previous act. These facts tend to establish a common scheme or plan. The evidence the State wishes to introduce is for thepurpose of showingdefendant's motive, opportunity and intent--allowable exceptions under Rule 404(b)

## ,M.

### R.Evid. Because the parties are the same and because of the similarities between the two acts and the circumstances surrounding the acts, the probative value of the evidence isnot substantially outweighed by theprejudice to thedefendant.An issue of first impression raised by the Court an.d ordered briefed by c~unselis whether the pre-trial order 

### *h'5 denying thehmotion in limine is appealable within the scope 

# w of 5 46-20-103,MCA, pertinent parts of which are set forth below: (1) Except as otherwise specifically authorized,the statemay not appeal in a criminal case.

(2) The statemay appeal from any court order or judgment the substantive effect ofwhich results in;

(e) suppressing evidence

# .. . Although the term suppression is not defined in the Montana Code Annotated or in Montana case law, "suppress" means "to effectively prevent from using." Rogers 

### v. United States

(D.C. Cal. 1958), 158F.Supp. 670,680. In the past this Court has accepted interlocutory appeals by the State when the ruling by the District Court had the substantive effect of suppressing evidence, and involving constitutional rights of the defendants. Nor were the cases limited to the precise situations set forth in S 46-13-301, MCA, (motion to suppress confession or admission),or § 46-13-302,MCA, (motionto suppress evidence illegally seized). See State 

### v. Johnson (Mont. 1983), 674 P.2d 1077, 40 St.Rep. 1990, cert. denied (1984), U.S.



### , 104 S.Ct. 2693, 81 L.Ed.2d 365, (voice identification of defendant was suppressed); State v. Jackson (1981), 195 Mont. 185, 637 P.2d 1, (evidence of defendant's refusal to take a breath-test was suppressed); State v. Ulrich (1980), 187Mont. 347, 609 P.2d 1218, (resultsof neutron activation test were suppressed)

# .

### In the case atbar,however, defendant's constitutional rights are not at issue,and the question to be addressed is whether a broader interpretation of the statute is appropriate. The State argues without evidence of prior instances of contact between T. W. and his sister, its ability toprosecute the casewill be severely impaired. The trial will be solely a question of credibility between the defendant and the victim. The Kansas and Illinois Supreme Courts have strongly rejected a narrow interpretation of similar statutory language which would limit interlocutory appealsby the State to situationsinwhich evidence had been suppressed because it was obtained in violation of constitutinal rights. See State v. Newman (Kan. 1984), 680 P.2d 257, and People v. Young (Ill. 1980), 41.2N.E.2d 501. The Illinois Court in Younq allows pretrial interlocutory appeals in criminal cases whenever the prosecutor certifies to the trial court that suppressionsubstantially impairs the State's ability to prosecute. 412N.E.2d at 507. The high court refused to formulate a standard by which lower courts could determine the appealability of a certainorder,relying instead on the "good-faith evaluation of the prosecutor of the impactof the suppression orderonhis case." Young, 412 N.E.2d at 507. There isan important distinction between interlocutory appealsonpre-trial rulingsand those taken in the course of the trial. Mid-trial appeals place tlze defendant in double jeopardy in violation of the Fifth Amendment to the United States Constitution and Article 11, 

### Section 5 of theMontana State Constitution and are not appealable. State v. Carney (Mont. 1986), P.2d 

## , 43 St.Rep. 54. No jeopardy attaches here, as the jury had not yetbeen sworn. Cristv.Bretz (1978), 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24. Because there is no double jeopardy problem in this case the ruling is appealable. We reverse the order of the District Court and remand with instructions to try the case on its merits consistent with this opinion.