STATE v TECCA
Annotate this Case
Download PDF
No. 85-477 I N THE SIJPREME COURT OF THE STATE O MONTANA F 1986 STATE O MONTANA, F P l a i n t i f f and Respondent, -vsLEE TECCA, Defendant and A p p e l l a n t . APPEAL FROM: D i s t r i c t Court of t h e S i x t h J u d i c i a l D i s t r i c t , I n a n d f o r t h e County o f P a r k , The H o n o r a b l e Byron Robb, J u d g e p r e s i d i n g . COUNSEL O RECORD: F For Appellant: Knuchel & McGregor; K a r l K n u c h e l , L i v i n g s t o n , Montana For Respondent: Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana Kathy S e e l e y , A s s t . A t t y . G e n e r a l , H e l e n a , Montana Wm. N e l s Swandal, County A t t o r n e y , L i v i n g s t o n , Montana S u b m i t t e d on B r i e f s : Decided: 9 , 1986 F e b r u a r y 11, 1986 Filed: . - Clerk Jan. J u s t i c e Frank R. t h e Court. M o r r i s o n , J r . , d e l i v e r e d t h e O p i n i o n of Mr. Defendant Tecca Lee appeals his July 1985, 30, jury conviction i n t h e D i s t r i c t Court o f t h e S i x t h J u d i c i a l D i s - trict on On N.L., one of felony evening the count sexual of November 8, assault. 1984, affirm. We the prosecutrix, s t a y e d o v e r n i g h t w i t h h e r f r i e n d , Cindy T e c c a , a t the D e f e n d a n t had r e c e n t l y f i n i s h e d a t e r m w i t h Tecca r e s i d e n c e . t h e A i r F o r c e and was l i v i n g i n t h e Tecca home a t t h e t i m e . N.L. was e l e v e n y e a r s o l d and d e f e n d a n t 2 3 y e a r s o l d . half-brother About six-pack Mrs. of d a n t was b o r n t o Cindy, 8:00 of p.m. heer About 9:00 p.m., previous marriage, that and evening, took defendant the beer brought a d o w n s t a i r s where Both g i r l s began d r i n k i n g h e e r . d e f e n d a n t , C i n d y , and N.L. Mrs. and i s a a s w e l l a s t h e o t h e r Tecca c h i l d r e n . w e r e playing. Cindy and N.L. go d r i v i n g . home Tecca's Defen- l e f t t h e house t o Tecca was s t u d y i n g i n h e r bedroom, and was unaware t h e g i r l s w e r e d r i n k i n g and t h a t t h e y h a d l e f t w i t h defendant. D e f e n d a n t b o u g h t a t w e l v e - p a c k o f b e e r , which was p l a c e d i n t h e back s e a t w i t h t h e g i r l s . They d r o v e a r o u n d town f o r a b o u t a n h o u r and a h a l f and t h e n r e t u r n e d t o t h e T e c c a home about 10:30 consumed at p.m. least Ry four or time, this N.L. five beers; and Cindy had defendant each testified t h a t h e had n o t more t h a n two b e e r s d u r i n g t h e c o u r s e o f t h e evening. A s t h e y e n t e r e d t h e house, defendant suggested t h e g i r l s go r i g h t t o s l e e p and n o t make arranged their s l e e p i n g bags any n o i s e . The g i r l s had floor i n t h e basement on t h e e a r l i e r i n t h e e v e n i n g , a n d p l a n n e d on s l e e p i n g t h e r e . testified defendant. that she s l e p t f o r a while, N.L. b u t was awakened by D e f e n d a n t was k n e e l i n g b e s i d e N.L. and had h i s hand in her underpants with his finger in her vagina. Defen- dant asked N.L. to roll over, but she wouldn't so he left. A light in the hallway was on, and N.L. could see that it was defendant; he was wearing only his underwear. minutes later Cindy became sick. About 20 After several trips to the bathroom, Mrs. Tecca heard the commotion and moved the girls upstairs. N.L. did not tell her parents about the incident until a week later. An information was filed January 4, 1985, charg- ing defendant with felony sexual assault, in violation of 5 45-5-502 ( 3 ) , MCA. On April 10, 1-985, the prosecution filed a Notice of Intent to Introduce Evidence of Other Acts. Defense counsel responded with a motion in limine to bar introduction of prior acts evidence. iud.ge on May A hearing was held before the district 24, 1985, and the motion in limine denied. Defense counsel moved for reconsideration of the motion in limine, and the motion was again denied on July 29, 1985, prior to commencement of trial. Trial was held July 29, 1985. Following the testimony of N.L., testimony was given by R.T., concerning prior acts of defendant. S.W., K.W., and L.C., Prior to R.T.'s testimo- ny about defendant's previous acts, the trial judge instructed the jury that they were to consider such evidence only for the limited purposes of proving a common scheme or nethod used in the commission of the alleged offense, identity of the offender, or existence of intent. R.T., defendant's half-sister, testified that she had moved out of the Tecca home a week prior to the incident, because on three occasions the previous month she had awakened at night to find defendant sitting next to her bed clothed in only his underwear with his hand resting on her bed. R.T. testified that s i m i l a r i n c i d e n t s o c c u r r e d t h e p r e v i o u s two t i m e s d e f e n d a n t was o n l e a v e , d u r i n g 1982 and 1983. t h a t when s h e was e i g h t R.T. further testified (nine y e a r s a g o ) , defendant climbed i n h e r bed a t n i g h t and t o u c h e d h e r b r e a s t s and v a g i n a . This o c c u r r e d f o r n e a r l y two y e a r s , b u t t h e n s t o p p e d a f t e r d e f e n d a n t ' s f a t h e r became a w a r e and s p o k e w i t h d e f e n d a n t . testified S .W. about an incident involving defendant when s h e v i s i t e d t h e T e c c a home a b o u t f i v e y e a r s a g o . She went t o d e f e n d a n t ' s room w i t h C i n d y , and d e f e n d a n t a s k e d S.W. t o remove h e r c l o t h i n g . arms around h e r refused, S.W. s o defendant put h i s from b e h i n d and u n b u t t o n e d h e r p a n t s . b u t t o n e d them baclc up and l e f t . S.W. She was n i n e y e a r s o l d a t the time. K.W. t e s t i f i e d a b o u t two i n c i d e n t s w i t h d e f e n d a n t t h a t o c c u r r e d w h i l e s h e was a t t h e Tecca home. On e a c h o c c a s i o n was i n d e f e n d a n t ' s room a n d d e f e n d a n t a s k e d h e r t o h a v e K.W. s e x w i t h him and h e e x p o s e d h i m s e l f . These i n c i d e n t s oc- c u r r e d a p p r o x i m a t e l y two a n d f o u r y e a r s a g o , when K.W. was a g e e i q h t and t e n , r e s p e c t i v e l v . L.C. years testified before, home. L.C. she t h a t when spent the s h e was twelve, night with R.T. three the Tecca at awoke t h a t n i g h t t o f i n d d e f e n d a n t n e x t t o h e r bed w i t h h i s hand r e s t i n g on t h e b e d , h u t l e f t immediately was awake. when h e r e a l i z e d L.C. Jury about instruction no. 16 was a limiting instruction i n f o r m i n g t h e j u r y t h a t t h e p r i o r a c t s e v i d e n c e was a d m i t t e d t o show p r o o f o f m o t i v e , o p p o r t u n i t y , p l a n , knowledge, iden- t i t y and a b s e n c e o f m i s t a k e o r a c c i d e n t , a n d t h a t s u c h e v i dence was not to be used for any other purpose. After deliberation, t h e jury returned a verdict of g u i l t y of sexual a-ssault, a felony. 5 years, with 4 The d i s t r i c t j u d g e s e n t e n c e d d e f e n d a n t t o years, 1 months 1 conditionally suspended. Defendant appeals his conviction and raises the following issue: Whether the District Court erred in allowing admission of prior acts evidence? Defendant contends that the admission of testimony relating to his prior acts was a violation of Rule 404(b), Mont.R.Evid, and d.id not meet the guidelines established by this Court in State v. Just (1979), 184 Mont. 262, 602 P.2d 957. Rule 404(b), Mont.R.Evid., provides: Other crimes, wrongs, acts. 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. Rule 403, Mont.R.Evid. relevant evidence: ". requires the exclusion of otherwise . . if its probative value is substan- tially outweighed by the danger of unfair prejudice . . ." In State v. Just, supra, we established a four-element test to determine the admissibility of defendant's prior acts or crimes. The four elements are: 1) The sirnil-arity of crimes or acts; 2) nearness i n time; . 3) tendency to establish a common scheme, plan, or system; and 4) the probative value of the evidence is not substan- tially outweighed by the prejudice to the defendant. 184 Mont. at 269, 602 P.2d at 961. Applying this test to the facts of the present case, we find the trial judge was correct in all-owing testimony concerning prior acts of d.efendant. While the prior acts were not identical to the offense committed in this case, there is sufficient similarity to sustain admission. Each of the incidents g i r l s and o c c u r r e d i n t h e Tecca home. and R.T., K.W., young g i r l s . involved young The t e s t i m o n y o f S.W., c l e a r l y shows d e f e n d a n t ' s s e x u a l i n t e r e s t i n Defendant asked S.W. t o remove h e r c l o t h i n g and t h e n unbuttoned h e r pa.nts; d e f e n d a n t a s k e d K.W. exposed h i m s e l f t o h e r ; f o r s e x and and d e f e n d a n t went t o bed w i t h R.T. f o r a l m o s t two y e a r s and touched h e r a l l o v e r . Both R.T. and t e s t i f i e d t h a t t h e y had been awakened i n t h e m i d d l e o f L.C. t h e n i g h t t o f i n d d e f e n d a n t n e x t t o t h e bed d r e s s e d o n l y i n h i s underwear. These i n c i d e n t s b e a r s u f f i c i e n t s i m i l a r i t y t o t h e c h a r g e d o f f e n s e t o uphold t h e i r a d m i s s i o n . The p r i o r a c t s o f d e f e n d a n t t e s t i f i e d t o by t h e s e w i t n e s s e s go back a s f a r a s n i n e y e a r s . such e v i d e n c e i s t o o remote, established this Court and v i o l a t e s t h e t i m e for admitting p r i o r limits acts. See S t a t e v . S t r o u d (Mont. 1 9 8 4 ) , 683 P.2d 459; 4 1 St.Rep. e.g., 919 by Defendant a s s e r t s t h a t ( t h r e e and a h a l f Mont. 91, 608 P.2d judge agreed with years); 1083, Sta.te v. Hansen (two and a h a l f y e a r s ) . t h e prosecutor ( 1 9 8 0 ) , 187 The t r i a l t h a t t h e s e a c t s showed a c o n t i n u o u s p a t t e r n o f c o n d u c t by d e f e n d a n t and t h e r e f o r e were admissible. St.Rep. I n S t a t e v. D o l l (Mont. 1 9 8 5 ) , 692 P.2d 473, 4 2 40 we s a i d : Whether e v i d e n c e o f p r i o r c r i m e s i s t o o remote i s directed t o the discretion of the d i s t r i c t court and i s a m a t t e r t h a t goes t o t h e c r e d i b i l i t y o f t h e evidence r a t h e r than i t s a d m i s s i b i l i t y , u n l e s s t h e remoteness i s s o g r e a t t h a t t h e p r o f f e r e d e v i d e n c e h a s no v a l u e . W e a g r e e t h a t an i s o l a t e d i n c i d e n t from n i n e y e a r s ago i s t o o remote, however, where t h e r e i s a c o n t i n u i n g p z t t e r n of similar Accord, R.T. conduct, S t a t e v. the Spence remoteness (Ariz. problem is alleviated. 1 9 8 5 ) , 704 P.2d 272, 274. t e s t i f i e d t h a t defendant molested her f o r a period of n e a r l y two y e a r s u n t i l d e f e n d a n t was c o n f r o n t e d by h i s ther. fa- During t h e n e x t f o u r y e a r s , d e f e n d a n t was away i n t h e s e r v i c e , y e t when he was home on l e a v e , i n c i d e n t s w i t h o t h e r young g i r l s o c c u r r e d . service, A f t e r d e f e n d a n t r e t u r n e d home from t h e testified R.T. that on many occasions defendant e n t e r e d h e r room a t n i g h t i n h i s underwear, and t h a t , b e c a u s e of t h e s e o c c u r r e n c e s , s h e moved o u t o f t h e house a b o u t a week p r i o r t o t h e o f f e n s e a g a i n s t N.L. defendant's devia.te sexual a p p r o x i m a t e l y n i n e yea.rs. T h i s t e s t i m o n y shows t h a t conduct has been occurring for W d - e c l i n e t o e s t a b l i s h an a r b i e t r a r y t i m e l i m i t f o r a d m i t t i n g p r i o r a c t s e v i d e n c e where such a c u t - o f f would e x c l u d e p r o b a t i v e e v i d e n c e . The p r i o r a c t s t e s t i m o n y shows d e f e n d a n t committed, o r attempted to commit, sexual acts with young girls for a p e r i o d o f n i n e y e a r s l e a d i n g up t o t h e o f f e n s e a g a i n s t N . L . We find the number and similarity of incidents tends to e s t a b l i s h a common scheme o r p l a n u n d e r t h e t h i r d prong of the Just test. F i n a l l y , we f i n d t h a t t h e p r o b a t i v e v a l u e o f t h e p r i o r a c t s e v i d e n c e was n o t s u b s t a n t i a l l y outweighed. by t h e p r e j u d i c e t o defendant. While d e f e n d a n t was l i k e l y p r e j u d i c e d t o a c e r t a i n d e g r e e , we c a n n o t s a y a s a m a t t e r o f law t h a t s u c h prejudice clearly outweighed the probative value of this evidence. The p r i o r a c t s e v i d e n c e e s t a b l i s h e d a c o n t i n u i n g course conduct of opportunity, intent, was an 11 y e a r - o l d the incident. by defendant and and i d e n t i t y . aided in determining The v i c t i m i n t h i s c a s e who had consumed f i v e b e e r s t h e n i g h t o f Testimony t h a t d e f e n d a n t had made advances on o t h e r young g i r l s who had been i n t h e Tecca home t e n d s t o corroborate the story of t h e victim. In State v. Just, supra, this Court set forth three procedural requirements for the admission of prior acts. The requirements are: (1) notice to the defendant prior to trial that evidence of other crimes, wrongs or acts will be introduced; (2) an admonition by the judge to the jury when the evidence is introduced that it is admitted solely for one or more of the accepted purposes stated in Rule 404 (b); and (3) a cautionary jury instruction to the same effect, providing in unequivocal terms that the evidence is admitted for the purpose earlier stated and not to try and convict the defends-nt for prior wrongful conduct. 184 Mont. at 262, 602 P.2d at 963-4. There is no dispute that the prosecution timely filed a notice of intent to introduce such evidence. Defendant asserts the District Court failed to meet the second and third requirements. We disagree. The trial judge delivered the following admonition to the jury before the prior acts testimony: Ladies and gentlemen of the jury, evidence is about to be introduced for the purpose of showing the defendant committed crimes or acts other than the one for which he is on trial. You may not consider this evidence to prove that the defendant is a person of bad character, or that he has a disposition to commit crimes. You may only consider this evidence 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 committed the offense. You may also consider this evidence to prove existence of intent, 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. There were four witnesses who testified as to defendant's prior acts. Defendant argues that the trial judge was required to deliver the admonition before each of these witnesses testified. Defendant has cited no cases in support of such a proposition, nor do we find Just requires the trial judge to deliver an admonition each time prior acts evidence is received. F i n a l l y , d e f e n d a n t a s s e r t s t h e t r i a l judge d i d n o t g i v e the proper prior acts cautionary instruction evidence. Court to the instruction jury no. concerning 16 provided: The S t a t e h a s o f f e r e d e v i d e n c e t h a t t h e d e f e n d a n t a t a n o t h e r t i m e engaged i n o t h e r crimes, w r o n g s , o r acts. T h a t e v i d e n c e was n o t a d m i t t e d t o p r o v e t h e c h a r a c t e r o f t h e d e f e n d a n t i n o r d e r t o show h e acted i n conformity therewith. The o n l y p u r p o s e o f a d m i t t i n g t h a t e v i d e n c e was t o show p r o o f o f mot i v e , o p p o r t u n i t y , p l a n , knowledge, i d e n t i t y and absence o f mistake o r accident. You may n o t u s e t h a t e v i d e n c e f o r any o t h e r p u r p o s e . The d e f e n d a n t is n o t b e i n g t r i e d f o r t h a t o t h e r c r i m e , wrong o r act. He may n o t b e c o n v i c t e d f o r any o t h e r o f f e n s e than t h a t charged i n t h i s c a s e . For t h e jury t o c o n v i c t t h e d e f e n d a n t o f any o t h e r o f f e n s e t h a n t h a t c h a r g e d i n t h i s c a s e may r e s u l t i n u n j u s t double punishment o f t h e defendant. We find this to he a proper cautionary meeting t h e t h i r d procedural requirement o f J u s t . W e a f f i r m t h e D i s t r i c t Cou W e concur: instruction
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
