No. 85-262 

IN THE 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 for the 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 Stadler argued, 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: FEB 251986 

Clerk 
Mr. Justice John Conway 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 defendant was a minor. We reverse 

and remand for trial consistent with the holding in this 

opinion. 

The defendant, T. W., is charged with 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 these weekend visits, T. W. took her into her 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 

against her buttocks to stimulate himself. When their mother 

discovered them, the victim was crying. 

This incident was reported to the Department of Socialand Rehabilitation Services (SRS) but no charges were 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 the Army 

and did so in March, 1981. The victim then returned home 

pursuant to court order. 
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 his hands into her pants. He told her not 

to tell anyone. She reported the incident to school 

personnel who reported to SRS and law enforcement personnel. 

T. W. denies the offense and has offered to join the Navy. 

Defense counsel filed its motion 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.nt to Rule 404 (b) M.R.Evid. 

Defendant's motion in limine was granted. 

The issues presented for appeal are: 

(1) Whether the Youth Court Act prohibits the 

introduction of acts committed by the defendant when he was a 

juvenile. 

(2) Whether the past act is admissible as other crimes 

evidence under Rule 404 (b) , M.R.Evid., and State V. Just 

(1979), 184 Mont. 262, 602 P.2d 957. The Montana 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, which provides: 

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 statement be admissible 
in any criminal proceeding against the 

declarant. 

Since no statement of a "participant" is here invof.ved, the 

testimony given by the mother of the defend.ant is not 

privileged under 5 41-5-402, MCA. 

This Court recognizes that: 

Generally, evidence of other offenses or 

of other similar acts at other times is 

inadmissible for the purpose of showing 

the commission 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 to that 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 actually charged 

with the other offense. [Citations 

omitted. 1 

Just, 184 Mont. at 267-68, 602 P.2d at 960. 

There is an important exception to this general rule, 

which . . . in this jurisdiction, is of 

ancient lineage. Simply put, the 

evidence of prior sexual acts by a 

defendant and a [victim] is admissible in 

a trial for a sexual offense [:I 

(1) When similar acts with the same 

prosecuting witness are involved; 

(2) When similar acts are not too remote 

in time; and 

(3) When evidence of other offenses 

tends to establish 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, 1-84 Mont. at 267-68, 602 P.2d at 960. 

The rule and the exception is codified in Rule 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 for other 

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 or wrongful 

acts is weighed against its probative value by applying three 

factors identified in State v. 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.gainst the same victim. 

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 failure of questioned evidence to meet only one element 

of the Just test is not sufficient to refuse its admission, a 

decision to admit the evidence should not be made lightly. 

The four factors must be considered together. 

The victim in this case had. been molested by her 

brother four years prior to the incident which is the object 

of this action. The lower court found this length of 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 not 
admissible. 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 

admission of prior 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.iscretion of tke court and is 

a matter that goes to the credibility of the evidence rather 

than to its admissibility.'' State v. Saterfield (1943), 114 

Mont. 122, 127, 132 P.2d 372, 373-74; State v. 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. 

The determination of a trial judge that evidence is too 

remote to be relevant will 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 circumstances of the case. 

Satterfield, 114 Mont. at 127, 132 P.2d at 373; Nelson, 139 
Mont. 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.er attention, then 

approached her from behind, put what he said was a gun in her 

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 it was similar in character to the 

case being tried. However, the court also said evidence 

cannot be 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, 250 N.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 incidents was four years, the 

opportunity for an encounter between T. W. and his sister did 

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 and we adopt it: 

. . . [Alny issue as to remoteness of the 

prior incident is almost completely 

diffused by the fact that during the time 

gap between the prior incident and the 

rape, defendant wa.s in confinement in a 

correctional institution. 

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 evidence of T. W.'s previous sexual conduct with 

her. The State cannot expect routine admissions of past 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 the witness is impaired, those exceptions 

must be adhered to scrupulously to assure fairness to both 

parties. In this case both acts were sexual in nature. The 

acts occurred in the victim's bedroom or one she shared with 

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 the purpose of showing defendant'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 is not substantially outweighed by the prejudice 

to the defendant. 
An issue of first impression raised by the Court an.d 

ordered briefed by c~unsel is 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 state may not appeal in a 

criminal case. 

(2) The state may appeal from any court 

order or judgment the substantive effect 

of which 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), 158 F.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, (motion to 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), 

187 Mont. 347, 609 P.2d 1218, (results of neutron activation 

test were suppressed) . 
In the case at bar, 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 to prosecute the case will 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 

appeals by the State to situations in which 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), 41.2 N.E.2d 501. 

The Illinois Court in Younq allows pretrial interlocutory 

appeals in criminal cases whenever the prosecutor certifies 

to the trial court that suppression substantially impairs the 

State's ability to prosecute. 412 N.E.2d at 507. The high 

court refused to formulate a standard by which lower courts 

could determine the appealability of a certain order, relying 

instead on the "good-faith evaluation of the prosecutor of 

the impact of the suppression order on his case." Young, 412 

N.E.2d at 507. 

There is an important distinction between interlocutory 

appeals on pre-trial rulings and 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 the Montana 

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 yet been sworn. Crist v. 
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.