STATE v HENDERSON
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NO. 95-248 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996 STATE OF MONTANA, Plaintiff and Respondent, v. BILL J. ;iili~ ~/i 'i;?~,,~~ HENDERSON, Defendant APPEAL FROM: and Appellant. District Court of the Fourth Judicial In and for the County of Missoula, The Honorable John W. Larson, Judge District, presiding. COUNSEL OF RECORD: For Appellant: Marcia M. Jacobson, Missoula, Montana For Public Defender Office, Respondent: Hon. Joseph P. Mazurek, Attorney General; Assistant Attorney Barbara C. Harris, General, Helena, Montana Robert L. "Dusty" Deschamps, III, Missoula County Attorney; Betty T. Wing, Deputy County Attorney, Missoula, Montana Submitted on Briefs: Decided: Filed: June 4, October 1996 17, 1996 Justice Terry N. Trieweiler The defendant, filed in the Bill County, consent, by was charged. affirm jury, The with discretion offense opinion Fourth of of of the Judicial sexual District intercourse 5 45-5-503, MCA. of the crime the of the in without Following District judgment Court. by information, was convicted with a which he Court. We Court. on appeal when the violation Henderson issue Slarev.Jusl in District for the He appeals the was charged Court a felony, trial the Henderson, J. District Missoula delivered it (1979), is whether admitted the evidence 184 Mont. 262, District of Court "other 602 P.2d abused acts" its pursuant to 957. FACTUAL BACKGROUND In children the maternal Do.B., children lived A.B. moved he also A.B., who and B.B. Alaska, time, A.B. abused notified children the engaged made the D.B., that a counselor, Henderson with had sexually investigation, occasions, Missoula to Anchorage, At Henderson to in marriage, grandparents. that police that a prior from 1984, took Henderson 1984, children in to told the perform and In live her December with their her grandmother, Do.B. her. immediately police. alleged sexual S.B. During that, intercourse on several with A.B., sexual simulated the acts and with one another. In 1988, sexual Following Henderson was arrested intercourse without a trial by jury, consent, Henderson 2 and charged with and accountability was convicted two offenses: for of both incest. charges. He subsequently fled sentenced 1993. until Henderson then 454, the children did the District Court accountability not for of the for the pretrial offense incest sexual In November 1994, of Evidence the Henderson verdict acts remanded without consent was retried in without filed Acts," a between on the case for a charge. the District consent. which his we ordered the "Notice in of acquittal We also State both basis, of and Statev. Henderson sexual On that intercourse Other in we reversed incest. a directed apprehended and simulated intercourse the of Court, 1013, charge. sexual proceedings, Introduce that enter this P.2d constitute to and was not to 877 We concluded convictions. new trial jurisdiction, appealed Mont. 265 (1994), the Court During the Intent to of asserted it the following: [Tlhe State will seek to introduce . evidence of other acts that are inseparably related to and conduct simultaneous with the crime charged, for the purpose of proving intent, identity, and common scheme. The evidence of other acts expected the State . . . consists of: to be presented by [Henderson] ,was 1. During the same time period that having sexual intercourse with [A.B. 1, he was also having her two young brothers lie on top of her and have intercourse with her In prior proceedings [Henderson] asserted mistaken identity as a defense, that it was some other man that sexually assaulted the victim. The boys' testimony that [Henderson] also had them perform sexual acts on their sister is critical to testimony that [Henderson] is the confirm her perpetrator. The District Just rule, and Court determined reviewed that the the 3 requirements proffered of evidence the modified of "other acts" the satisfied those District Court requirements. granted evidence of "other the trial, A.B. State's on that determination, motion, and admitted the on several occasions, her vagina. D.B. acts." At the Based Henderson B.B. inserted testified testified sexual penis with that acts his Henderson A.B., that, and fingers regard Henderson with testified to the their testified guilty on his sexual own behalf, On another man had sexually the conclusion as acts." and They acts both or simulated sister. that At "other made them perform allegations. children's opinion into of cross-examination, the charged. The Henderson, sentenced District for the Court of stated the his A.B. jury found entered years all he molested trial, him to forty ineligible and denied Henderson judgment in prison, against and declared him Court its parole. DISCUSSION The issue discretion on appeal when Stntev.Just it (19791, of Mont. 184 1054. is Furthermore, discretion admissible, to absent of 602 P.2d court's whether the that whether or a showing of 4 District "other acts" to 957. district 442, 445, abused 833 P.2d court evidence an abuse ruling, court a district not abused pursuant evidentiary 253 Mont. we recognize determine and 262, 119921, Statev.Crist the evidence a district review discretion. whether admitted When we review standard is is of has relevant discretion, the its 1052, "broad and the trial court's determination 261 Mont. In wrongs, 221, Montana, the or (1993), is acts will 224, not be overturned." 861 P.2d admissibility 929, 931. of governed evidence Rule by Srate v. Romero of 404(b), other crimes, M.R.Evid., which provides: 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, knowledge, plan, identity, or absence of mistake or accident. To insure character have evidence substantive Mont. of Just rule the The other (2) The other time; acts" Rule is acts" P.2d rule not 404(b), requirements 814 requires (1) of "other 136, in Matt modifies The modified "other contravention evidence 249 promulgated of four before (1991), evidence in delineated satisfied Mari that used M.R.Evid., that we must can be admitted. 52. The originally test in Jusl. that: crimes, wrongs or acts must be similar; remote in crimes, wrongs or acts must not be The evidence of other crimes, wrongs or acts is (3) 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, knowledge, identity, or absence of mistake or plan, accident; Although relevant, evidence may be excluded if (4) its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, considerations of undue delay, 5 be Slale v. four-part established as waste of evidence. 249 Mont. Matt, time, at Henderson admitted or 142, needless 814 P.2d asserts Specifically, that evidence the of he contends improperly admitted dissimilar to the not relevant it could be admitted; is substantially of acts" not are the of and remote the of sexual "other it abuse. acts" was sexual acts are was charged; (2) the pursuant simulated he probative by the when purpose the the of evidence which value danger of of the unfair however, to which evidence prejudice that and the "other time. of Henderson's third, SIMILARITY Henderson acts) are appeal, and fourth therefore, will requirements that the simulated as defined by in evidence the modified of that to without participate OF OTHER CRIMES, asserts dissimilar intercourse of (3) erred of involve the a modified rule. .Just the acts" He concedes, in first, Court to a permissible issues. Our analysis review (1) outweighed confusion the with cumulative 56. "other that of District his offense is at the because: evidence presentation the consent). sexual acts 5 45-2-101(66), the simulated "other Just acts" rule. the act WRONGS, OR ACTS "other with acts" which To support did not sexual does not he was charged his involve MCA, and satisfy claim, sexual (sexual he points "sexual that acts. (simulated intercourse" he did not out actually Therefore, he contends, the requirement first "We have consistently to be identical Slalev. Weldy Tecca the (19951, "other for his sexual for sexual conduct similarity 621, to at For other We conclude charged reasons acts that were the offense. acts" the the performed same solely Henderson's no rigid the has 273 Mont. at 311, 316, 852 Weldy , to prove for conduct that the rule rather, 258 Mont. in acts" following an issue are sufficiently we hold that requirement first case, Henderson similar, (1993), Accordingly, satisfied is dispute." stated "other Stntev. In this involved on whether relevant (citing involved here sufficiently Statev.Keys 5 were acts [tl in similar." of occurrences. that an issue 5 (citing offense have children. depends prove 624). Henderson's is do not 138). and they the 1, 136, of the of we have stated some relevance "other All of 902 P.2d charged acts sufficiently 902 P.2d 714 P.2d acts, and abuse [other] only same series of the when determination the the gratification. manipulation determining P.2d the all Furthermore, 75, and of the 74, 172, acts" was responsible 68, 168, part that conduct, 273 Mont. and were victim, charged 220 Mont. (1986)) both to the held of section, in dispute. similar to the evidence of the modified Jzrsr rule. PROPER PURPOSES FOR THE ADMISSION EVIDENCE OF "OTHER ACTS" In its "Notice the State asserted to prove identity of Intent to that the evidence and common Introduce Evidence of "other scheme. It 7 OF of Other acts" is Acts," was admissible undisputed that, pursuant to Rule 404(b), see e.g. state V. Kordonowy (identity); (1991), Stutev.Brooks (common is allowable further 251 (1993), Mont. are permissible 44, 260 Mont. correct 49, 79, 823 purposes. P.2d 854, 83, "merely 857 734, 857 P.2d that is not sufficient purpose or that purpose Keys, 258 Mont. at that case to be the Henderson 317, the 737 his of became was properly to prove that charged made it more identity at the not evidence an issue However, 625. likely does in not dispute." we do not a disputed issue allowed that find asserted in the to introduce was, in the was not case. evidence the perpetrator evidence of mistaken him of the the State's The evidence another this The State, the fact, that A.B. accused alleged When he abuse. that she and sexual We conclude when is innocence, Henderson offense. if reciting here. acts identity therefore, 852 P.2d protested man committed defense, when he recognizes purpose that acts" these scheme). Henderson an M.R.Evid., of of "other about "other the acts" Henderson's crime with which second asserted he was charged. We also common merit or plan find scheme. establish the existence sexually abused and in of a common manipulated the of scheme children "other purpose-- acts" in which for his helped Henderson own sexual gratification. We conclude admitted to that prove the evidence of identity Henderson's 8 "other acts" and was common properly scheme. Accordingly, the we hold third that requirement the of the evidence of modified Just "other acts" satisfied rule. THE PREJUDICIAL EFFECT DOES NOT SUBSTANTIALLY OUTWEIGH THE PROBATIVE VALUE Henderson have been contends excluded probative that because have frequently often and inevitably Mont. (1991), 250 Mont. 32, evidence of "other acts" other 457, not should outweighed its Mont. at 226, 861 P.2d the evidence 1279, 817 P.2d 1137, 1144. the modified reason 932. to refuse Stak v. McKnight 12 84 ; In state this because case, it the satisfies prejudice admission." 250 v. Pnulson such rule, SeealsoMcKnight, will Rornero , 2 6 1 Mont. at 465, 820 1284 the P.2d Just at evidence a party. "but a sufficient For to of is and value, reasons that substantially the modified stated Henderson's the prejudicial outweigh evidence Jusl previously of of its "other in this "other acts" effect of opinion, probative acts" had strong the value. satisfied we conclude probative evidence Accordingly, the fourth did not we hold prong of the rule. We conclude four acts" probative was prejudicial, requirements at that 820 465, 43, alone that "other effect be prejudicial 250 that of prejudicial recognized 119911, P.2d its evidence value. We the the that requirements of the the evidence modified of "other .Just rule. 9 acts" satisfied Accordingly, all we hold that the admitted District Court did not abuse evidence of Henderson's "other The judgment of the District Court We concur: 10 its acts" discretion of sexual is affirmed. when abuse. it
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