STATE v NORRIS
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No. 84-47 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984 STATE OF MONTANA, Plaintiff and Respondent, ROBERT LEE NORRIS, Defendant and Appellant. APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Charles Luedke, Judge presiding. COUNSEL OF RECORD: For Appellant: Allen Beck argued, Billings, Montana For Respondent : Hon. Mike Greely, Attorney General, Helena, Montana Dorothy McCarter argued, Asst. Atty. General, Helena Harold F. Hanser, County Attorney, Billings, Montana Theresa O'Connor, Deputy County Attorney, Billings Submitted: Decided: Filed: Ul;dj May 30, 1984 October 4, 1984 584 Clerk --------- Mr. Justice John C. Court. Sheehy delivered the Opinion of the Robert Lee Norris wa.s convicted in the District Court, Yellowstone County, Thirteenth Judicial District, on jury verdict of two counts of sexual intercourse without consent and one count of aggravated kidnapping. On consideration of his appeal from those convictions, we affirm. The principal issues raised by Norris on appeal are that the District Court had improperly allowed evidence of prior crimes committed with a person not the prosecutrix, and that the District Court improperly admitted rebuttal testimony to a fact issue not raised by the defendant Morris. Secondary issues are that the District Court improperly limited the scope of cross-examination of a witness not the prosecutrix, and that a cautionary instruction given by the court was legally insufficient. We will set out a short statement of the facts from the record from the viewpoint of the prosecutor. 1983, Ann Hanson, then 1-5 years On January 30, old, went to a motel apartment for the purpose of babysitting the child of Lynn and Robert Norris. The babysitting job had been arranged by Ann's mother, who stipulated that Ann was not to stay in the motel apartment if she were alone with Robert Norris. Ann arrived at the motel at approximately 4:00 p.m., where Lynn and Robert were present. A friend of Norris' , Carl Barnes, was at the motel when Ann arrived or he arrived shortly thereafter. Norris forced Ann to consume a substantial portion of a pint of whiskey. Lynn and Carl left the premises and in their absence, Norris committed by force two acts of fellatio and a rape upon her person, along with other sexual intrusions. Ann left the motel at approximately 8 : 0 0 p.m., reported to her mother what had happened, who brought her to the police. The charges against Norris resulted. Medical exanination of Ann immediately following the incident revealed she had sustained a blackened. eye and a cracked rib. OTHER CRIMES Debbie Huck, age 19, testified that in August 1982, she had been called on the telephone by Norris to babysit at his motel. She had been told that he and his wife, Lynn, were going to a movie that night. When she got to the motel-, in a taxi arranged by Norris, she found that Lynn was not at home. He started telephoning numbers to try to find Lynn and then started a conversation about Debbie being a model. She testified that through fear of him she partially disrobed and that eventually she was raped. He told her when she left that he would About pay her $250. a week later, she testified, she was called to the telephone by Norris, who told her to come to the motel to pick up the money. When she got there, when Lynn was also present, Norris injected her, again through her fear of him, with two shots of cocaine in her arms, and again raped and otherwise sexually assaulted her. Other testimony revealed that Norris had been charged with sexual intercourse without consent over the Debbie Huck incidents but that the charges had been reduced upon plea bargain, and he pleaded guilty to the misdemeanor offense of promotion of prostitution. In accordance with State v. Just (Mont. 1979), 602 P.2d 957, 36 St.Rep. 1649, the State had given notice of its intention to call Debbie Huck as a v?j-tnessin Norris' case. The defendant had sought to prohibit the testimony by a motion in limine, which the District Court first granted but during the course of the trial, after hearing Ann's testimony, reversed. itself and permitted the testimony. Norris contends that the admission of Debbie Huck's testimony was improper because it was not permissible under Rule 404 (b), M.R.Evid., and that the Huck testimony does not meet the four-factor test of State v. Just, supra, in that the Huck testimony did. not describe similar crimes or acts, did not reveal a common scheme or plan and its probative value was defendant. clearly outweighed by the prejudice to the The State answers that the Huck test.imony tends to establish Norris' identity, his motive, scheme and modus operandi; that the probative value of Huck's testimony Rule 4 0 4 ( 3 ) (b), outweighs anv prejudice suffered by Norris. At issue is the applicability of "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." Undeniably there are similarities between the Hanson and the Huck incidents. Hanson was lured by the defendant to ba-bysit; Huck also came as a prospective babysitter. Each of the acts involving the girls took place at a motel. Hanson was forced to drink whiskey during her occurrence; Huck was not involved in alcohol or d-rugs in the first incident, but was forced to take cocaine injections in the second incident. Norris told Hanson he would give her money if she needed it; he offered to pay Huck $250 for the first incident, and lured her back to the motel a second time on the promise of paying her the $250. There are dissimilarities, it is true, in the kinds of acts that Norris practiced upon the girls when they had come under his power. occlude the apparent Those dissimilarities do not practice of Norris, with the acquiescence of or at least without objection from I.,ynn,an admitted. prostitute, to lure young women to his motel- apartment to ply them with alcohol. or drugs and thereby accomplish his unlawful purposes upon them. Clearly in Montana, evidence of other crimes is admissible when proof is shown of similarity, nearness of time, identity, and tendency to establish a common scheme or plan of the crime charged. State v. Just, supra; State v. Jenson (1969), 153 Mont. 233, 455 P.2d 63; State v. Tully (1960), 148 Mont. 166, 418 P.2d 549. REBUTTAL TESTIMONY In the State's case on rebuttal, Leonard Lamping was permitted by the District Court to testify that he had been confined in a ja.i.1 cell in Yellowstone County with Robert Norris when Norris was subjected to the criminal charges concerning Debbie Huck. Here again, the District Court had originally granted Norris' motion in limine as to Lamping, but reversed itself to allow the testimony d.uring State's rebuttal. Lamping's testimony related to statements of Norris which included descriptions of how Norris' wife would help Norris lure young women into the business of prostitution, descriptions of the use of drugs by Norris during the process of "turning out" prostitutes, and a claim by Norris that he had "disposed" of a young girl who attempted to have Norris prosecuted. Norris contends that the Lamping testimony was improper rebuttal evidence, that Lamping was a known "snitch," untrustworthy, and testifying for his own gain as a criminal defendant. Moreover, Norris claims that the trial court did not determine whether there were circumstantial guaranties of trustworthiness in Lamping's statements. During the State's cross-examination of Lynn Norris, in the defendant's case-in-chief, the foil-owing occurred: "Q. So he doesn't make you go out i.n the street? A. No, he doesn't. "Q. He's never made you go out and work the street? A. He never made me do nothing. "Q. Does he make other girls go out and work the streets? A. No. "Q. I'm sure he was. Now when you were told that Bobby raped Annie you've testified that you said, 'You've got to be kidding.' Were you surprised? A. Was I surprised? "Q. Yeah? A. "Q. Why not? "Q. Yeah? A. I didn't believe it. A. b h not? 7y 'Cause I know my husband. ' Okay? .. 3 "Q. And .. A. I don't think he is capable of raping anybody. To put it bluntly." Following the above testimony, the State moved t.he court to reverse its ruling on the motion in limine with respect to Lamping. The State wanted. rebut the testimony Lynn Norris, who had claimed the defendant had never forced anyone to be a prostitute or to make money for him. On that motion, the court allowed the testimony of Lamping. The testimony from Lynn Norri-s in her cross-examina-tion by the State in defendant's case-in-chief that her husband had. never made her or other women "work the streets" came in without objection. That testimony raised an immediate issue as to the habitual routine of Norris, and tended to discredit the other testimony in the record that Norrj-s had pleaded guilty to the prostitution. misdemeanor The charge clearly State was of promotion entitled to of rebut through Lamping the t.estimony of Lynn Norris. The argument testimony has on taken appeal a with curious respect turn. to When Lamping's Lynn Norris testified that she did not think Norris was "capable of raping anybody. To put it bluntly," defense counsel objected on the ground that he had not made the character of Norris an issue in his case-in-chief. point. The questions stopped at that Norris contends on appeal that the sole purpose of the Lamping testimony was to rebut the statement by Lynn Norris that her husband was incapable of raping anybody. are uncertain as to whether the statement made by We Lynn respecting her husband meant it was not in his character to rape anybody, or whether virility to rape anybody. she meant that he lacked the If the former, of course the question would arise, as Norris contends, as to whether she was improperly led by the State to put Norris' character in issue. If, however, she meant the latter, then of course, her testimony constituted a rebuttable fact. At any rate, we Lampins's testimony. find no error in the admission of Moreover, the District Court allowed the question of S;ampinqsl credibility to be decided by the iury. Defendant was permitted to call witnesses who establish that Lamping was a known "snitch;" that another person in the county jail was considered to be the person who performed the acts of which Lamping accused Norris; and that Lamping was under indictment at the time he agreed to give the testimony respecting Norris. The jury had ample opportunity to consider Lamping's credibility. LIMITED CROSS-EXAMINATION With respect to Debbie Huck's testimony, Norris contends that the court improperly limited his cross-examination of her. Defense counsel proposed to the court that he wanted to establish that when Debbie returned to Norris' motel apartment, she wanted the $250 for the purpose of getting an abortion, her second, and to establish that the abortion was necessary through defendant Norris. provisions of M.R.Evid., her intimacy with a person not the The District Court, in considering the section 45-5-503(5), MCA, and Rule 608 (b), determined that the extension of such cross-examination might turn the trial into one involving Debbie Huck instead of Ann Hanson. Norris contends that he was not allowed full cross-examination as to Huck engaging in sex in return for money or drugs; that the true reason for her presence at the Norris residence was with respect to the second abortion; and that he was precluded from showing that her appearance at Norris' motel involved no plan, motive, or design similar to the Hanson case. Section 45-5-503(5), MCA, limits evidence concerning the sexual conduct of the victim. It does not by its terms apply to the sexual conduct of a witness. does, however, pr0vid.e with respect Rule 608, M.R.Evid., to a witness that "specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, may not be proved by extrinsic evidence." The District Court permitted Norris to show that Debbie Huck had returned to the motel the second time for the purpose of obtaining $250, and that she wanted it for an abortion. Further cross-examination. concluded that than that, the court limited the In making its ruling, the District Court the purpose of admitting Debbie Huck's testimony in the first instance was to show a common plan, scheme or design on the part of Morris in luring young women to his motel. Prior to the introduction of Huck's testimony, the court had given the cautionary instruction to which we shall later advert. The District Court therefore ruled that it would limit cross-examination of Debbie by Norris' counsel to matters which would demonstrate Norris did not initiate his contacts with Debbie through a common scheme, design or plan. We recognize that the District Court is given wide latitude in determining what evidence is admissible during the course of a trial. wisely limited the In this case, the District Court cross-examination to those facts concerning Debbie Huck that would indicate a common plan, scheme or design in the manner in which he committed the offense of Ann Hanson. credibility of Huck, truthfulness, which M.R.Evid., forbids. but Norris was seeking to attack the not by would. be rather by opinion testimony admissible under extrinsic acts which of Rule Rule her 608, 608 The District Court was not in error in so ruling. CAUTIONARY INSTRUCTION Before all-owing the testimony of Debbie Huck, District Court instructed. the jury as follows: "Ladies and Gentlemen of the ISury, evidence is about to be introduced for the purpose of showing the defendant committed crimes other than the ones for which he is on trial. You may not consider this evidence to prove that the defendant is a person of bad chara.cter, or that he has a disposition to commit crimes. You may onl-y the consider this evid.ence for the limited purposes of providing a characteristic method, plan or scheme used in the commission of the offense in this case, or the identity of the person who comrnj-tted the offense. You may also consider this evid.ence to prove existence of purpose or knowledge, which is an element of the crime charged. You may not consider this evidence for any other purpose that would expose the defendant to unjust double punishment." The instruction was based. on State v. Van Natta (~ont. 1982), 651 P.2d 57, 61, 39 St.Rep. 1771, except that the District Court substituted the words "purpose or knowledge" for the word "intent," found in Van Natta. Norris objects to the instruction on the ground that it is understandable only by lawyers and not laymen, a.nd that the use of the word "characteristic" in the instruction implies that any method, plan or scheme found by the jury involves the character of the defendant. We find no substance in the objections raised by Norris and determine that the instruction proposed in Van Natta, as modified by the District Court to substitute "purpose or knowledge" for the word "intent" is a proper one in circumstances where evidence of other crimes is about to be admitted in a criminal case. CONCLUSION The judgment of conviction on the counts against Robert Lee Norris are hereby affirmed. Justice We Concur: a.w4L-&.@w* Chief Justice
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