                            No.       93-409

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                  1994



STATE OF MONTANA,
          plaintiff and Appellant,
    V.

JEFFREY LAYNE GARN,
          Defendant and Respondent.



APPEAL FROM:   District Court of the First Judicial District,
               In and f o r the County of Lewis and Clark,
               The Honorable Thomas C. Honzel, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Hon. Joseph P. Mazurek, Attorney General,
               Cregg W. Coughlin, Assistant Attorney
               General, Helena, Montana
               Mike McGrath, Lewis and Clark County
               Attorney, Helena, Montana
          For Respondent:
               Edmund F. Sheehy, Jr., Cannon & Sheehy,
               Helena, Montana


                            Submitted on Briefs:      November 18, 1993
                                               Decided:   March 24, 1994
Filed:


                                  i
                                  Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
        Appellant State of Montana appeals from the order of the First
Judicial District Court, Lewis and Clark County, granting a new
trial to defendant Jeffrey Layne Garn for admitting irrelevant
evidence at trial, based on State v. Keys (1993), 258 Mont. 311,
852 P.2d 621, which was decided between Garnls conviction and
motion.
        We affirm.
        The sole issue raised on appeal is whether the District Court
erred when it granted the defendant a new trial.
        In August and early September 1992, 15-year-old K.M. was
staying with her father in Helena while her mother moved from Reno,
Nevada, to Spokane, Washington.        K.M.'s   mother was to arrive in
Helena on September 2, 1992, and K.M. was to return to Spokane to
reside with her. K.M. did not want to live with her mother because
of conflict in their relationship.         On September 2, 1992, K.M.
decided to run away to avoid returning to Spokane with her mother.
She gathered her clothes into a duffle bag and hid them in her
father's home.       Then she went to the mall to see T.R., a young man
she had met the night before who worked at a record and video
store.     K.M. told T.R. that she was 15 years old and had run away
from home and needed a place to stay.      T.R. told her that he could
not provide her with a place to stay.       He introduced her to Garn,
the manager of the record and video store. T.R. told Garn that she
was a runaway and needed a place to stay and left them alone to
talk.     Sometime during their conversation, Garn showed K.M. a
brochure regarding a modeling contest.     Garn asked her if she was
interested in modeling for photographs that could be entered in the
contest, and told her she could win $500. K.M. agreed to model for
Garn at his house that evening.     K.M. testified that Garn did not
tell her that nudity would be involved in the modeling.
     After the record and video store closed, K.M. met Garn at the
outside entrance to the mall.     Before they drove to Garn's house,
he drove her to her father's house to get her duffle bag.      After
arriving at Garnts house, the two sat on the couch in the living
room.   K.M. testified that Garn told her to undress, and that she
was hesitant and confused, and was unsure whether she should run
and try to get away, or do what she was told.    K.M. testified that
she went to the bathroom and put on a slip that Garn had given her,
but left her underwear on. She returned to the living room and sat
on the couch by Garn.     They talked about nudist colonies that Garn
had visited.    Then Garn asked her to take off her top.        K.M.
testified that although Garn did not threaten her, she was
intimidated by him.      She took off her top and Garn fondled her
breast. K.M.   testified that she shook her head no. Garn testified
that he had asked her if he could touch her breast and that she
said "enjoy it."       He then asked her to remove the rest of her
clothing and turn around in a circle for him.     K.M. complied with
his request.    K.M.   testified that after Garn took two polaroid
pictures of her, he exposed himself to her, and then had sexual
intercourse with her by penetrating her vagina with his fingers.
K.M. told Garn that she was tired and asked to stay at his home or
go somewhere else.   Garn agreed to pay for a motel room for her to
stay in.    On her way out, she picked up the photographs to take
with her.   Garn took them from her saying she would not need them
because he was choosing someone else for the photo contest.      He
unsuccessfully tried to burn and cut the photographs.     Garn then
drove her to a motel and paid for a room for her to stay in.   Since
early that evening, her father had been searching for her and
reported her absence to the police.     She called her father who
immediately drove to the motel and brought her home.
     On December 8, 1992, Garn was charged with two felonies,
sexual intercourse without consent, and deceptive practices. Prior
to trial, the District Court dismissed the deceptive practices
charge.     On January 25, 1993, the State gave notice to Garn
pursuant to the notice requirements of State v Just (1979), 184
                                              .
Mont. 262, 602 P.2d 957, modified in State v. Matt (1991), 249
Mont. 136, 814 P.2d 52, that it intended to introduce evidence of
other crimes, wrongs, or acts involving Garn9s convictions of
unlawful transactions with minors. The State argued that the other
crime or acts evidence were relevant to determine whether K.M.
consented to the sexual contact by demonstrating Garn9s plan or
common scheme, whereby he would entice teenage girls to pose nude
with promises of money and modeling opportunities, thus proving any
consent given to him by K M was achieved by deception and invalid.
                         ..
Garn opposed the evidence, arguing that the evidence could not meet
the similarity requirements of the modified    Just   analysis, and
therefore, was inadmissible character evidence.
     The other crimes or acts evidence involved testimony by two
teenage girls, S.M. and A.W., who modeled for Garn for a photo
contest to promote his record and video store.       S.M., who was 16
years old, testified that she knew Garn because she worked in the
mall and would see him at the record and video store.               She
testified that he would often tell her dirty jokes and tell her
about nudist colonies he had visited. On October 19, 1992, at the
record and video store, Garn promised to pay the girls $50 to model
for him at his house the next day, and also promised to provide
them with alcohol while they modeled.        The three met at Garn's
house the next afternoon.     After talking a while, Garn gave the
girls wine coolers and had them change into different attire that
they had brought with them.     As the girls danced to music, Garn
videotaped and took polaroid pictures of them.      Later, Garn urged
the girls to remove more clothing and directed the girls actions,
while continuing to take pictures of them.      Eventually, the girls
were naked except for their underwear.
     S.M. had to leave for work at five o'clock so the girls began
dressing.    Garn asked A.W. to stay and continue modeling for him,
but A.W. made excuses to leave.      When the girls left they took a
couple of the polaroid photographs with them. Later, they tried to
destroy them and threw them in the garbage. S.M.'s mother learned
of   the    incident,   retrieved   the   photographs,   and   notified
authorities.    Garn was charged with unlawful transactions with
minors for supplying the girls with alcohol, to which he pled
guilty.
       On March 17, 1993, the District Court allowed the other crimes
or acts evidence at trial.        After hearing the evidence and
testimony, the jury found that Garn was not guilty of sexual
intercourse without consent, but found him guilty of sexual
assault.
       After Garnls conviction, and before his motion for a new
trial, this Court decided   m, 852 P.2d   621. Garn requested a new
trial arguing that Keys supported his contention that the other
crimes or acts evidence allowed at trial were not relevant to prove
any issue at trial.    The District Court granted his motion for a
new trial based on            stating that the evidence was not
sufficiently similar to the present charges concerning sexual
contact without consent because the evidence did not involve sexual
assault or sexual advances toward the girls. Therefore, the court
found the evidence was not relevant under Rule 404(b), M.R.Evid.
       Did the District Court err when it granted defendant a new
trial?
       The State contends that the District Court abused its
discretion when it granted Garn a new trial by finding the other
crimes or acts evidence allowed at trial did not meet the modified
Just   requirements.    The State argues that the evidence was
necessary to prove the central issue in dispute, that K.M. did not
consent to sexual intercourse with Garn, and that the requirements
under the modified   Just rule had been met. The State's purpose for
admitting the other crimes or acts evidence was to show motive,
intent, plan, and common scheme, which it contends was relevant for

                                  6
the determination of whether K.M. consented to the sexual contact
by demonstrating a plan or common scheme whereby Garn would entice
teenage girls to pose nude with promises of money and modeling
opportunities, thus rendering any consent invalid.       The other
crimes evidence involved Garn's conviction for supplying alcohol to
the underage girls.
      Garn opposed the evidence arguing that the evidence could not
meet the similarity requirement under the modified Just rule
because his prior crime of supplying the teenage girls with alcohol
was not similar to the charges in the present case involving sexual
intercourse without consent. Further, the other acts evidence did
not involve any sexual contact or advances.    Garn argues that the
District Court's decision was correct when it determined that the
evidence was not relevant to prove any issue in dispute. He argues
that the evidence was inadmissible character evidence.
      Section 46-16-702(1), MCA, provides that a district court may
grant a motion for a new trial if required in the interest of
justice.    The order granting or denying a motion for a new trial
will be upheld by this Court absent an abuse of discretion. State
V.   Staat (1991), 251 Mont. 1, 9-10, 822 P.2d 643, 648; State v.
Goodwin (1991), 249 Mont. 1, 17, 813 P.2d 953, 963.
      The basis for a trial court's decision admitting or excluding
evidence is whether the evidence is relevant to the issues at
trial.     Relevant evidence means "evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it

                                  7
would be without the evidence."       Rule 401, M.R.Evid.       Further,
relevant evidence may be excluded if the probative value of the
evidence is substantially outweighed by the prejudice to the
defendant.     Rule 403, M.R.Evid.   Rule 404(b), M.R.Evid.,    provides
that:
        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, plan, knowledge,
        identity, or absence of mistake or accident.
        To guard against admission of inadmissible character evidence,
this Court has provided a four-part analysis which requires that:
             (1) The crimes, wrongs or acts must be similar.
            (2) The other crimes, wrongs or acts must not be
       remote in time.
            (3) The 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 with such
       character; but may be admissible for other purposes, such
       as proof of motive, opportunity, intent, preparation,
       plan, knowledge, identity, or absence of mistake or
       accident.
            (4) Although relevant, evidence may be excluded if
       its probative value is substantially outweighed by the
       danger of unfair prejudice, confusion of the issues,
       misleading of the jury, considerations of undue delay,
       waste of time, or needless presentation of cumulative
       evidence.
Matt
I        814 P.2d at 56.   Further, the party offering such evidence
must comply with the procedural precautions in       Just.     Matt,   814
P.2d at 56.      In this case, the parties do not dispute that the
proper procedural precautions were taken.
        The District Court allowed the evidence at trial after
applying the modified Just analysis and finding that the evidence
met all four parts of the analysis.      The court found a similarity
between the acts specified in the notice to Garn and the crime
charged because all the acts involved young girls, were of a sexual
nature, and involved a discrepancy in positions of power of the
various actors.   The court found the evidence was not remote in
time, having occurred a year earlier, and was admissible to show
motive, intent, plan, and common scheme. Further, the court found
that although this type of evidence is always prejudicial, the
probative value of the evidence substantially outweighed the danger
of unfair prejudice or confusion of the issues.
     The State contends that our recent opinion in State v. Brooks,
(Mont. 1993), 857 P.2d 734, 50 St. Rep. 967, is most closely
analogous to this case.       Brooks was convicted of sexually
assaulting an 11-year-old victim in Havre, Montana. At trial, the
State introduced other crimes or acts evidence involving a prior
conviction whereby Brooks sexually assaulted a 13-year-old boy in
Washington state. In both the charged offense and the other crimes
evidence, Brooks used a systematic plan to entertain boys in
swimming or water games, where he would play with them, catch them
off guard, and then sexually assault them unexpectedly.    Brooks,
857 P.2d at 735-36. Similarly, the State argues that Garn's other
acts evidence was relevant to prove that Garn had sexual contact
with K.M. without her consent. The State contends the evidence of
Garn's plan, scheme, or method of approaching young girls and
offering them modeling, prizes, and money demonstrated that he had
ability and capacity to exercise control and authority over the
girls, therefore, inferring that the girls were deceived by him,
proving that K.M.'s   apparent consent was invalid.
     Brooks is distinguishable from the present case.   The charged
offense in Brooks was sexual assault of a young boy.     The prior
crime or acts evidence admitted at trial involved Brook's prior
conviction of sexual assault of another boy in Washington state.
The crime of sexual assault in Washington state, and the systematic
plan used to sexually assault the boy in Havre, were obviously
similar.   Brooks, 857 P.2d at 736.   Here, the charged offense was
sexual intercourse without consent.    However, the other crimes or
acts evidence did not     involve any sexual touching or sexual
advances toward the girls.
     In granting the new trial, the District Court relied on Kevs,
which involved the question of whether or not the defendant's prior
act of indecent exposure and assault was admissible to prove sexual
intercourse without consent.    Similarly, the issue in the present
case is whether Garnls prior crime of giving alcohol to underage
girls, and his prior acts of enticing them to pose nude with
promises of money and modeling opportunities, were admissible to
prove Garn subjected K.M.    to the same scheme to coerce K.M.   to
consent to sexual contact.       The ~istrict Court applied the
four-part Just analysis and found the evidence could not meet the
similarity requirement that the evidence have some relevance to
prove an issue in dispute. The court, in its memorandum and order,
quoted the following paragraph in Keys as its basis for granting a
new trial :
     While there is no rigid rule for determining when conduct
     is sufficiently similar, the determination of similarity
     depends on whether that conduct has some relevance to
     prove an issue in dispute. We reiterate that in this
     case the only issue before the jury was whether N.B.
     consented. We do not find that the indecent exposure
     incident, followed by an apology from Keys and the fact
     that he left P.B. alone, is similar or relevant to
     determine what occurred between N.B. and Keys. The two
     incidents are so completely different in surrounding
     circumstances, acts committed, and victims, that we
     cannot reasonably conclude that one is probative of the
     other.


    The issues in the present case were whether Garn had sexual
intercourse without consent; whether Garn reasonably believed that
K.M. was older than 16; and whether Garn subjected K.M. to sexual
contact without her consent. The District Court reasoned that the
prior crimes or acts did not present facts that Garn touched either
of the two girls or that he made any sexual advances toward them,
therefore, the evidence was not similar to the present case, where
K.M. alleged that Garn sexually assaulted her.    The court found
that the prior crime evidence whereby Garn supplied alcohol to
underage girls, and the prior acts evidence where Garn enticed the
two girls to pose naked for him while he photographed them, were
not similar or relevant to determine whether Garn subjected K.M. to
sexual contact without her consent.    We agree with the District
Court. Garn's prior crimes or acts are not sufficiently similar or
relevant to prove sexual intercourse without consent or sexual
assault, and the evidence is inadmissible character evidence.
     In   m, we   cited State v Crist (l992), 253 Mont. 442, 833
                               .
P.2d 1052, where we held that evidence of the defendant showing a
young girl pornographic magazines and enticing her to dress in a
nightgown were not sufficiently similar to a charge of sexual
abuse.   -,      852 P.2d      at 624-25.   Rather, the evidence was
inadmissible character evidence which would tend to distract the
trier of fact from the main issue at trial of what occurred on the
occasions charged.   -,        852 P.2d at 625.   We concluded that the
innuendos that could be drawn from the evidence in Crist, and also
from the evidence in      -,       tended to go to the defendants'
character and their propensity to act in conformity with the
evidence.     w, 852 P.2d      at 624-25. Here, innuendos from Garnls
prior crime and acts could also tend to go to his character and his
propensity to act in conformity with the evidence. Therefore, the
prior crimes and acts evidence could have distracted the jury from
the main question at trial of whether Garn had sexual contact with
K.M. without her consent.
     In sum, we do not find enough similarity between the acts to
conclude that the crime of supplying alcohol to underage girls and
the prior acts enticing two girls to pose naked for photographs
tend to prove whether K.M. consented. The District Court did not
abuse its discretion by granting Garn a new trial.
     Affirmed.




                                            Justice
We concur:
Justice Fred J. Weber dissents as follows:

       The majority concluded that Garn's priar crimes or acts are
not sufficiently similar or relevant to prove sexual intercourse
without consent or sexual assault, and the evidence is inadmissible
character evidence.      I disagree with that conclusion.
       As pointed out in the majority opinion the issues are whether
Garn    had   sexual   intercourse     without    consent,     whether    Garn
reasonably believed K.M.        was older than 16, and whether Garn
subjected K.M. to sexual contact without her consent. The majority
relies upon State v. Keys ( 1 9 9 3 ) , 852 P . 2 d 621, 50 St.Rep. 547, and
concluded that innuendoes from Garn's prior crimes and acts could
also tend to go to his character and his propensity to act in
conformity with the evidence and that such evidence could have
distracted the jury from the main question at trial.             The majority
then concludes that it did not find sufficient similarity between
the acts to conclude that the crime of supplying alcohol to
underage girls and enticing them to pose nude for photographs tends
to prove whether K.M.       consented or not.        The position in that
regard is set forth in my dissent in Keys and I will not restate
the same.     I do suggest there has been an improper focus on the

actual issue for consideration in this opinion.

       I believe that the majority has disregard paragraph (1) of the
Modified Just analysis which states:
       (1) The crimes, wrongs or acts must be similar.

I n s u b s t a n c e the majority has c o n c l u d e d that the crimes must be

similar before there can be an admission under the Modified Just
Rule.      As held     in numerous other cases, the evidence may be
admissible even though it does not consist of crimes or wrongs and
consists only of "acts."
        The acts on the part of Garn with regard to K . M .    showed that
he persuaded her to take her clothing off and to be photographed
before proceeding further. In a similar manner, the evidence as to
S.M. and A.W.     established that after Garn had them change into
different attire he had them dance while he took polaroid pictures
and urged the girls to remove more clothing while he continued to
take pictures.         Up to that point it is clear that the acts
committed against the three girls were similar and almost identical
in nature.       The evidence further showed that Garn attempted to
persuade A.W.      to stay and continue modeling for him, but she
refused to do so. In the present case, Garn proceeded further, and
based upon the evidence submitted at trial engaged in sexual
intercourse without consent with K . M . ,   reasonably believing that
she was older than sixteen, and subjected K.M. to sexual contact
without her consent.       It is true that the crimes with which Garn
was charged could not have been charged in connection with his
conduct with S . M .    and A.W.   It is apparently that difference in
conduct which leads the majority to conclude that Garn's prior acts
are not sufficiently similar to prove sexual intercourse without
consent     or   sexual   assault,   and   the   evidence     is   therefore
inadmissible. I believe the conclusion of the majority ignores the
express wording of the Modified Just Rule which in paragraph (1)
does not limit the similarity to crimes only, but allows the proof
if "acts" are similar.     The acts which are a significant part of
the whole transaction in both cases are similar.     Under previous
cases, the evidence would have been admitted and I believe should
have been admitted in this case.
        I disagree with the effective narrowing of the Modified Just
Rule.    I would reverse the granting of a new trial.
