                                                                                      September 3 2008



                                         DA 06-0376

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2008 MT 308



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

GARY CARL SWENSON, JR.,

              Defendant and Appellant.


APPEAL FROM:          District Court of the Seventh Judicial District,
                      In and For the County of Richland, Cause No. DC-04-31
                      Honorable Katherine M. Irigoin, Presiding Judge


COUNSEL OF RECORD:

               For Appellant:

                      Ali Moulton, Assistant Public Defender, Glendive, Montana

               For Appellee:

                      Hon. Mike McGrath, Montana Attorney General; Jonathan M. Krauss,
                      Assistant Attorney General, Helena, Montana



                                                  Submitted on Briefs: September 6, 2007

                                                             Decided: September 3, 2008


Filed:

                      __________________________________________
                                        Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.


¶1     Gary Carl Swenson, Jr., appeals from the judgment entered by the Seventh Judicial

District Court, Richland County, on a jury verdict finding him guilty of sexual assault, a

felony. We affirm.

¶2     The restated issues on appeal are:

¶3     1. Did the District Court abuse its discretion by admitting evidence of Swenson’s

prior acts?

¶4     2.     Did the District Court err by denying Swenson’s motions to dismiss for

insufficiency of the evidence?

                                     BACKGROUND

¶5     In 1996, Swenson pled guilty to, and was convicted of, the felony offenses of sexual

intercourse without consent against A.B. and J.S., and a felony offense of sexual assault

against A.H. In September of 2004, the State of Montana charged Swenson by information

with the felony sexual assault of A.F.K.

¶6     The State filed notice of its intent to introduce evidence of other crimes, wrongs or

acts, specifically “[t]he fact of the defendant’s conviction on July 12, 1996 of Sexual

Assault, a felony [involving A.H.] . . . together with the underlying facts and circumstances

of the offense[,]” and “[t]he fact that the defendant touched the bottom of J.S. with his hands

between August 20, 1992 and December 10, 1994.” The State represented that its proof of

these matters would include, respectively, court documents from the earlier case and the

testimony of A.H., J.S., A.B. and Dr. Sally George Wright.
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¶7     Swenson moved to exclude the evidence referenced in the State’s notice and, after the

State responded, the District Court held a hearing at which the parties presented arguments

regarding the four-pronged Modified Just Rule, which is set forth below. At that time,

Swenson’s challenges pertained only to the “remoteness” and “prejudice” prongs of the

Modified Just Rule. Based on the arguments presented, the District Court ruled the State’s

proffered evidence was admissible.         It subsequently granted Swenson’s motion for

appointment of new counsel.

¶8     Defense counsel raised certain matters at a conference the day before the scheduled

trial, and the parties presented oral arguments regarding the admissibility of the amended

complaint leading to the 1996 conviction in light of the Modified Just Rule, hearsay rules

and the confrontation clause. At that time, Swenson argued regarding the two previously

unchallenged “similarity” and “purpose” prongs of the Modified Just Rule, but—as the

record reflects the District Court clarified with defense counsel—only in relation to the

sexual intercourse without consent charges in the amended information. In other words,

Swenson’s second set of Modified Just Rule arguments did not pertain to the alleged

touching of J.S. in 1992 and 1994, the sexual assault offense involving A.H. to which he had

pled guilty or the facts underlying that offense. Shortly before jury voir dire, the District

Court ruled that, because the State no longer intended to call A.B. and A.H. to testify at trial,

evidence relating to the offenses involving A.B. and A.H. would be inadmissible on

confrontation clause grounds. The court made no further determinations regarding the

Modified Just Rule.

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¶9     During J.S.’s trial testimony, the defense asserted confrontation clause and hearsay

objections and a hearing was held outside the jury’s presence.             The District Court

determined, in light of J.S.’s trial testimony that she had witnessed Swenson’s 1990s conduct

involving the other girls, that J.S. could testify regarding Swenson’s conduct involving A.B.

and A.H., essentially reversing its earlier confrontation clause ruling. J.S. then testified that

Swenson touched or rubbed the buttocks or vaginal areas of A.B., A.H. and herself when

they were children in his mother’s daycare. The State did not attempt to have the amended

information leading to the 1996 convictions admitted into evidence and, except for testimony

elicited by the defense on cross-examination, no State witness or exhibit other than J.S.

mentioned Swenson’s acts in the 1990s.

¶10    Swenson moved to dismiss on insufficiency of the evidence grounds after the State’s

case-in-chief and again after the close of all evidence. The District Court denied both

motions.

¶11    The jury found Swenson guilty of the charged felony sexual assault offense, and the

District Court subsequently entered judgment and sentence. Swenson appeals.

                                STANDARDS OF REVIEW

¶12    We review a district court’s evidentiary ruling for abuse of discretion. State v. Price,

2007 MT 269, ¶ 10, 339 Mont. 399, ¶ 10, 171 P.3d 293, ¶ 10 (citation omitted). In a

criminal case, a motion to dismiss for insufficiency of the evidence under § 46-16-403,

MCA, is properly granted only if, viewing the evidence in a light most favorable to the

prosecution, no evidence exists upon which a rational trier of fact could find the essential

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elements of the crime beyond a reasonable doubt. We review a district court's denial of such

a motion de novo, because evidence is either sufficient or it is not. State v. Bomar, 2008 MT

91, ¶ 13, 342 Mont. 281, ¶ 13, 182 P.3d 47, ¶ 13 (citation omitted).

                                      DISCUSSION

¶13 1. Did the District Court abuse its discretion in admitting evidence of Swenson’s
prior acts?

¶14    Swenson correctly posits that a district court’s decision to admit evidence of other

crimes, wrongs or acts pursuant to M. R. Evid. 404(b) is guided by the Modified Just Rule,

which consists of the following four elements:

       (1) The other 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.

Price, ¶ 13 (citation omitted). As Swenson observes, we have stated that all four prongs of

the Modified Just Rule must be met before a trial court properly may admit evidence of other

acts, crimes or wrongs. See State v. Ayers, 2003 MT 114, ¶ 76, 315 Mont. 395, ¶ 76, 68 P.3d

768, ¶ 76 (citations omitted).

¶15    Procedural requirements pertaining to written notice and jury instructions also apply

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when a party offers evidence of other acts. See Ayers, ¶ 77. Swenson concedes the

procedural requirements were met here.

¶16    Before continuing further, we clarify certain points about the posture of the case now

before us. First, as indicated above, the parties made their arguments—and the District

Court made its determination—regarding the Modified Just Rule before trial. Accordingly,

we review whether the District Court abused its discretion in the context in which it made its

determination—that is, based on the arguments presented before trial.

¶17    Second, some of Swenson’s arguments on appeal pertain to the amended complaint

leading to the 1996 convictions and evidence of the 1990s sexual intercourse without consent

incidents, matters never actually introduced into evidence at trial. In this regard, we reiterate

that—except for testimony elicited by the defense—the only evidence admitted at trial

regarding acts by Swenson in the 1990s was J.S.’s testimony that he touched her, A.B. and

A.H. Thus, notwithstanding the District Court’s pretrial admissibility ruling encompassing

more than J.S.’s testimony, we conclude Swenson cannot establish prejudice or reversible

error with respect to evidence never introduced or admitted at trial. We need not address

these arguments further.

¶18    Third, Swenson’s arguments on appeal include assertions regarding the “purpose”

prong of the Modified Just Rule. As set forth above, however, he did not preserve a

“purpose” prong argument in the District Court in relation to the sexual assault on A.H. or

any alleged touching—the matters about which J.S. testified at trial. Swenson’s first set of

Modified Just Rule arguments in the District Court focused exclusively on the “remoteness”

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and “prejudice” prongs, and his second set of Modified Just Rule arguments regarding all

four substantive prongs pertained only to the sexual intercourse without consent incidents.

We note that, in closing arguments and in moving to dismiss the charge after the State’s

case-in-chief and at the close of all evidence, Swenson asserted the evidence was insufficient

to convict if the jury considered J.S.’s testimony for a permissible purpose. Because these

assertions were made after the admission of J.S.’s testimony, they cannot reasonably be

construed as pertaining to the admissibility of the testimony in the first instance. We

conclude Swenson has not preserved any argument regarding the “purpose” prong of the

Modified Just Rule.

¶19    We generally do not address arguments raised for the first time on appeal. See e.g.

State v. Johnson, 2008 MT 227, ¶ 26, 344 Mont. 313, ¶ 26, 187 P.3d 662, ¶ 26 (citation

omitted). Accordingly, we decline to consider Swenson’s unpreserved arguments regarding

the “purpose” prong as applied to the evidence of the 1990s touching and sexual assault

incidents, and address only his preserved arguments relating to the “remoteness” and

“prejudice” prongs.

¶20    The District Court determined Swenson’s 1990s acts were not too remote, reasoning

that the period between Swenson’s release from incarceration and the current alleged offense

was “about the same” as the period at issue in State v. Whitlow, 285 Mont. 430, 949 P.2d 239

(1997). In Whitlow, we concluded the “remoteness” prong was met when the charged

offenses at issue occurred in 1993 and the defendant had previously been convicted in 1985,

incarcerated from 1985 through 1989 and discharged from parole in 1990. Whitlow, 285

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Mont. at 435-38, 949 P.2d at 243-45. Here, Swenson was convicted in 1996, released from

incarceration in 2000, and still on probation in 2004 when the new offense was charged. On

appeal, Swenson mentions Whitlow—along with State v. Brooks, 260 Mont. 79, 83, 857 P.2d

734, 736-37 (1993)—only for the proposition that a lack of opportunity to reoffend while

incarcerated makes the time between the prior act and the charged offense less significant.

He does not assert Whitlow was incorrectly decided, nor does he attempt to distinguish it.

The appellant has the burden of establishing error, Johnson, ¶ 17, and Swenson has not met

that burden with respect to the District Court’s Whitlow-related reasoning.

¶21    Swenson asserts, however, that the present case is factually distinguishable from State

v. Medina, 245 Mont. 25, 798 P.2d 1032 (1990), overruled on other grounds by State v.

Olson, 286 Mont. 364, 373, 951 P.2d 571, 577 (1997), regarding a defendant’s opportunity

to reoffend. He is correct. We set forth no bright-line rules regarding the effect of the

opportunity to reoffend on the “remoteness” prong in Medina, however. Indeed, we stated

without equivocation that “[w]ith regard to nearness in time, each case must be examined in

light of its unique set of facts.” Medina, 245 Mont. at 30, 798 P.2d at 1036. Medina is of no

assistance to Swenson here.

¶22    Swenson also relies on State v. Ray, 267 Mont. 128, 132-33, 882 P.2d 1013, 1015-16

(1994), where we determined that acts from 16 to 18 years before the newly charged offense

were too remote because the State failed to establish intervening acts constituting a

continuing course of conduct. Swenson asserts the State failed similarly here, given the

period of approximately 10 to 12 years between the 1990s acts about which J.S. testified and

                                              8
the offense charged in 2004. As noted above, however, Swenson was incarcerated until

2000, and was on probation for the four years after his release. Unlike the present case, Ray

did not involve any incarceration and, as noted above, a lack of opportunity to reoffend while

incarcerated—here, from 1996 to 2000—makes the time between the prior act and the

charged offense less significant. See Whitlow, 285 Mont. at 438, 949 P.2d at 245.

¶23    Swenson also quotes a passage from State v. McKnight, 250 Mont. 457, 463, 820 P.2d

1279, 1282 (1991), which appeared in that case under the heading “Similarity of Other

Crimes, Wrongs or Acts.” As indicated, that portion of McKnight pertains to the “similarity”

prong, not to remoteness. Swenson did not argue the “similarity” prong in the District Court

with relation to the matters about which J.S. testified, and he raises no issue regarding

“similarity” on appeal. We conclude the District Court did not abuse its discretion by

determining Swenson’s earlier acts were not too remote in time.

¶24    Regarding the “prejudice” prong, Swenson argues the purposes set forth in the State’s

notice establish it intended to introduce impermissible character evidence. By its terms,

however, this argument relates to the “purpose” prong of the Modified Just Rule. As noted

above, Swenson did not preserve an argument under the “purpose” prong in relation to

evidence admitted at trial and, accordingly, we decline to address this argument further. See

Johnson, ¶ 26.

¶25    Finally, Swenson simply asserts the evidence was unduly prejudicial. We have

“repeatedly noted that probative evidence will frequently and inevitably be prejudicial to a

party.” Ayers, ¶ 99 (citation omitted). Moreover, when the other acts evidence meets the

                                              9
first three prongs of the Modified Just rule, it “‘necessarily carries great probative weight.’”

Ayers, ¶ 99 (quoting State v. Hagberg, 277 Mont. 33, 45, 920 P.2d 86, 93 (1996)). We

conclude Swenson has not established an abuse of discretion by the trial court with respect to

its determination regarding the “prejudice” prong of the Modified Just Rule.

¶26    We hold the District Court did not abuse its discretion by admitting evidence of

Swenson’s prior acts.

¶27 2. Did the District Court err by denying Swenson’s motions to dismiss for
insufficiency of the evidence?

¶28    Swenson advances State v. Cochran, 1998 MT 138, 290 Mont. 1, 964 P.2d 707, as

support for his assertion that the District Court erred by denying his motions to dismiss for

insufficiency of the evidence. Swenson does not discuss Cochran in detail, and we need not

address it at length here because we did so recently in State v. Maetche, 2008 MT 184, ¶¶ 20-

23, 343 Mont. 464, ¶¶ 20-23, 185 P.3d 980, ¶¶ 20-23, after briefing was complete in the

present case.

¶29    In Cochran, ¶¶ 29-34, we concluded the evidence was insufficient to establish assault

when, among other things, a stabbing victim expressly denied at trial that the defendant had

stabbed him. The present case is readily distinguishable from Cochran. Here, alleged victim

A.F.K. testified that Swenson committed the offense against her.

¶30    Swenson maintains, however, that the evidence was insufficient because A.F.K.

testified she did not see or hear anything during the alleged incident, and her minor cousin—

who was present at the time—testified that he observed Swenson simply wake A.F.K. and

leave the room. Among other things, Swenson asserts the evidence is vague, does not single
                                              10
out Swenson, does not show any explicit act, and does not “conclude” a crime was

committed.

¶31    A conviction for a sex offense may be based entirely on the victim’s uncorroborated

testimony. See State v. Rennaker, 2007 MT 10, ¶ 16, 335 Mont. 274, ¶ 16, 150 P.3d 960, ¶

16 (citation omitted); Olson, 286 Mont. at 372-73, 951 P.2d at 576-77. At trial, A.F.K.

testified she kept her eyes closed and pretended to remain asleep during the touching, then

pretended to wake up and saw Swenson standing over her. This testimony, which combined

both direct and circumstantial evidence, was sufficient to submit the issue to the jury and

support a conviction. See Maetche, ¶ 24 (citation omitted). We conclude sufficient evidence

existed upon which a rational trier of fact could find Swenson guilty beyond a reasonable

doubt. See Bomar, ¶ 13.

¶32    We hold the District Court did not err by denying Swenson’s motions to dismiss for

insufficiency of the evidence.

¶33    Affirmed.

                                                 /S/ KARLA M. GRAY


We concur:


/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ JOHN WARNER
/S/ JAMES C. NELSON




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