                                              NO.    91-424
                           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                    1992


             STATE OF MONTANA,
                                  Plaintiff and Respondent,
                  -v5-

             STEPHEN DALE CRIST,
                                  Defendant and Appellant.



             APPEAL FROM:         District Court of the Fourth Judicial District,
                                  In and for the County of Missoula,
                                  The Honorable Ed McLean, Judge presiding.


             COUNSEL OF RECORD:
                          For Appellant:
                                  John E. Smith and Marcia M. Jacobson, Public
                                  Defender's Office, Missoula, Montana
                          For Respondent :
                                  Hon. Marc Racicot, Attorney General, Helena, Montana
                                  Carol Schmidt, Assistant Attorney General, Helena
                                  Robert L. Deschamps, 111, County Attorney,
                                  Missoula, Montana



                                                    Submitted on Briefs:   April 2, 1992
                                                                Decided:   June 1 , 1992
                                                                                 1
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Justice R. C. McDonough delivered the Opinion of the Court.

     This is an appeal from the Fourth Judicial District, Missoula
County.      Defendant, Stephen Crist (Crist) appeals from a ruling of
the District Court allowing evidence of 'other acts' to be admitted
under Rule 404(b), M.R.Evid.            Subsequently, a jury found Crist
guilty of sexually assaulting 9 year old B.L.           We reverse.
        The issues for our review are:
        I.   Did the District Court err by admitting 'other acts'
evidence to be presented to the jury through the testimony of Kathy
Lamb?
        11. Did the District Court err by denying Crist's request for
psychological     evaluation       of   the   complaining witnesses   by   a
qualified expert of Crist's choosing?
        Crist was charged with three counts of sexual assault. In the
first count he was charged for sexual contact without consent for
touching 9 year old B.L. on the chest and in the vaginal area with
his hand.      Count two alleged that Crist sexually assaulted B.C.,
Crist's 8 year old son, by fondling his penis. Count three alleged
Crist sexually assaulted J.L., a 14 year old baby sitter, by
fondling her breasts.
        The State, pursuant to the requirements of State v. Just
(1979), 184 Mont.     262,   602   P.2d 957, filed a 'Notice of Intent to
Introduce Evidence      of Other Acts'          seeking to   admit alleged
incidents of sexual assault upon Kathy Lamb (Lamb).             The notice
provided that the State would seek to introduce evidence of 'other
acts' :
                                         2
       for the purpose of proving motive, intent, preparation,
       plan, knowledge, absence of mistake or accident, or any
       other permissible factor such as consciousness of guilt.
The State further provided that the evidence of         'other actst
expected to be presented consisted of the following:
       On or about the fall of 1984 the defendant touched the
       breast and legs of Kathy Lamb, d/o/b July 24, 1971, on
       approximately twelve different occasions. One time he
       showed her a pornographic magazine and on another
       occasion he gave her an alcoholic beverage and joked that
       he would get her drunk and then "take advantage" of her.
       Later the same night he tried to get her to dress in a
       nightgown. The touching all occurred when she was in bed
       and he entered the bedroom and reached under her covers.
The court allowed the evidence to be introduced and at trial Lamb
testified to each of the prior acts as listed above. However, Lamb
did not recall defendant having touched her breasts but did testify
that on three or four occasions (rather than the 12 described in
the notice) Crist had come into the room where she was sleeping
(with B.L.),   put his hand under her covers and rubbed her upper
leg.    Crist was only found guilty of the charges involving B.L.
       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.
Rule 404(b), M.R.Evid., must be strictly enforced, except where
clearly justified and exceptions to the rule must be carefully
limited. Just, 184 Mont. at 271-272, 602 P.2d at 962, citing State
v. Tiedemann (l96l), 139 Mont. 237, 242-243, 362 P.2d 529, 531. We
have developed four substantive criterion for the admission of
evidence of other acts or crimes. State v. Just (1979), 184 Mont.
262, 602 P.2d 957; State v. Matt (1991), 814 P.2d 521, 48 St. Rep.
614.   The so called 'Modified Just Rule' requires that:
       1) there is a similarity between the crime charged and
       the previous crime, act or wrong;
       2) the other crime, act or wrong must not be remote in
       time ;
       3) the evidence of other 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; and
       4) a determination that the probative value of the
       evidence is not substantially outweighed by the prejudice
       to the defendant.

       When reviewing evidentiary rulings, this Court will determine
if the District Court misused or abused its discretion. Steer Inc.
v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.
Absent a showing of abuse of discretion, the District Court's
determination will not be overturned.     State v. Oman (1985), 218
Mont. 260, 264, 707 P.2d 1117, 1119-20.     On review, we will apply
the Just criterion to the facts of the present case
       The first requirement of the Modified Just Rule is that there
be a similarity between the crime charged and the prior act.       Here
the crime charged was the perpetration of sexual assaults upon an
8, 9 and 14 year old child.     In State v. Tecca (1986), 220 Mont.
168, 714 P.2d 136, we held that a prior act need not be identical
to the offense committed but that there must be a sufficient
similarity. In Tecca, the crime charged was the sexual assault of
an 11 year old who was sleeping in the defendant's house.             We
determined that evidence of other children who had awakened in
defendant's house to find defendant sitting next to their bed in
his underwear bore sufficient similarity to the crime charged to
uphold its admission.     On the basis of Tecca, we refuse to adopt
Cristls argument that a prior act in order to be admissible in a
sexual assault case must involve actual ltouching'.
       In State v. Long (1986), 223 Mont. 502, 726 P.2d 1364, we
determined that defendant's having "rubbedo1
                                           the clothed bottom of
a 5 year old was sufficiently similar to the crime charged of
pulling down the pants of two four year old children and rubbing
their vaginas. We noted that sexual abuse of children takes subtle
forms and deferred to the perceptions of the trier of fact to
properly admit the testimony.
       In the instant case, Lamb testified that Crist assaulted her
late at night in the same bed in which Crist assaulted B.L.         Lamb
testified that Crist rubbed the inside and outside of her thighs in
an attempt to "move his hand up."      We conclude that this act is
sufficiently similar to the assault perpetrated on B.L. to uphold
its admission.    See also State v. Gilpin (1988), 232 Mont. 56, 756
P.2d   445.     We now apply Lamb's testimony, regarding Cristls
touching her, to the remaining Just criterion.
       Whether 'other acts1 evidence is too remote is directed to the
discretion of the District Court to determine whether a remoteness
is so great that the proffered evidence has no value.           Here, the
acts    about   which   Lamb   testified   appear   to   have    occurred
approximately four years prior to the act against B.L.          We have
refused to establish an arbitrary time limit for admitting prior
acts. Tecca, 220 Mont. at 173; State v. Medina (1990), 245 Mont.
25, 30, 798 P.2d 1032, 1036.      In similar cases we have determined
that remoteness does not bar admission where the intervening period
of time is three and one half years, State v. Stroud (1984), 210
Mont. 58, 71, 683 P.2d 459, 466; five years, State v. Eiler (1988),
234 Mont. 38, 48, 762 P.2d 210, 217; and nine years where there has

been a "continuing pattern of similar conduct.''      Tecca, 220 Mont.
at 172.
     We conclude that Lamb's testimony is not too remote and that
the District Court acted within its discretion by allowing its
admission.       Furthermore, we    conclude   that   Lamb's   testimony
regarding Crist's touching her tends to establish Crist's intent to
commit sexual acts with minors, and therefore satisfies the third
prong of the     Just   test.
     The fourth prong of the Just test requires that the probative
value of the evidence is not substantially outweighed by unfair
prejudice to the defendant.          We have clarified that unfair
prejudice occurs when the evidence is offered to "horrify, evoke
sympathy or increase a desire to punish and whose probative value
is slight."       State v. Paulson (lggl), 817 P.2d 1137, 1144, 48
St.Rep.   838,   841.     We again conclude the District Court acted
within its discretion and uphold the admission of Lamb's testimony
regarding Crist's touching her.
     The remaining acts to which Lamb testified, we conclude, fail
to reach the requisite standard of sufficient similarity.   Showing
Lamb a pornographic magazine, teasing her about getting her drunk
and "taking advantage of her," and attempting to get her to dress
in a nightgown are innuendos too broad to meet the standard of
similarity. We cannot say that these incidents are similar to the
actual assaults with which Crist is charged. The record is void of
Crist having ever acted similarly towards any of the alleged
victims. Not inconsistent with   m, we continue to recognize that
sexual abuse of children takes subtle forms.    However, the 'other
acts' admitted   in the    instant case cannot     all be   properly
characterized as sexual abuse.     These acts are, however, evidence
of character. These innuendos would tend to distract the trier of
fact from the main question of what actually happened on the
occasions charged.   Therefore, we conclude, with the exception of
Crist's touching Lamb while she was in bed, Lamb's testimony lacks
the requisite similarity to the crime charged and therefore fails
the first prong of the    Just   test and is inadmissible character
evidence. The District Court is reversed and the case remanded for
a new trial.
     Because we reverse, we need not address Cristlsclaim that the
State failed to provide proper notice of which purpose the State
intended to introduce the 'other acts' evidence.        However, we
reiterate our previous holding that the purposes listed in Rule
404(b), M.R.Evid.,   may not be listed in ushotgunllfashion but
instead the notice must provide the specific purpose upon which a
party intends to offer 'other acts' evidence. See State v. Croteau
(1991), 248 Mont. 403, 812 P.2d 1251.
     Lastly, we turn to Crist's request to have the District Court
compel a psychological evaluation of B.L.      by an expert of his
choosing.    Contrary to Crist's contentions, no legal authority
exists in Montana to compel a victim in a sexual assault case to be
examined by a defendant's psychologist.     State v. Liddell (1984),
211 Mont. 180, 685 P.2d 918.     We addressed this issue in State v.
Gilpin (1988), 232 Mont. 56, 756 P.2d 445, wherein we held:
     The defendant cannot force psychological evaluation of a
     child victim of sexual assault.
We are not persuaded by Cristlsconstitutional arguments that he is
being denied his right to reciprocal discovery. We decline to hold
that denial of a request to compel a psychological examination of
a   child    sexual    assault    victim   jeopardizes   defendant's
constitutional rights.    We hold the District Court did not abuse
its discretion by denying Crist's request to compel psychological
evaluation of B.L.




We Concur:


       Chief Justice
Chief Justice J. A. Turnage, dissenting:
       I respectfully dissent from the majority opinion reversing the
conviction of Stephen Dale Crist.    Crist was found guilty on March
26, 1991, by a Missoula County jury of sexual assault upon a nine-

year-old girl, B.L.,     committed between November 15, 1989, and
January 31, 1990.
       The majority opinion approves the admissibility of prior act
testimony given at the trial by K.L., sister of B.L., that Crist
sexually assaulted her in 1984 when K.L. was thirteen years old.
Crist was not charged with this assault. I agree with the majority
opinion's holding that this testimony of a prior act was admissible
and that the requirements of the "modified Just rule" with relation
to this prior act had been satisfied.
       The majority opinion, however, reverses the conviction based
upon testimony of K.L., that she was subjected to three other prior
acts of Crist.
       It must be noted that the three other prior acts, which the
majority holds to be      inadmissible and reversible error, all
occurred within a short span of time before the prior act of sexual
assault by Crist upon K.L. which the majority held to be admissi-
ble.
       The testimony of K.L.   relating to these three other prior
acts, taken from the trial transcript of the direct testimony of
K.L., is as follows:
Q.  Were there any other incidents involving
the Defendant that you can recall?
A. Yeah, I went over to the house one night,
and I was sitting there and on the floor
watching TV, and I don't remember how this
started, but Steve said something like --
yeah, right in front of Collette he said,
"Yeah, I'm going to --" I'm stumped. I can't
remember.
He goes, "I'm going to get her drunk and take
advantage of her," and Collette was sitting
right there, and they just kind of laughed
about it, and they go, "Well, we're going to
bed now," and I said, "Okay."
And I was just watching TV. So Steve came
back out a few minutes later, and he brought
this nightgown out, and he goes, "Come here,"
and he grabs me and takes me into the bath-
room, and he said, "Put this on,'' and I went,
"No." Then he walked out and he got mad, and
that was the end of it.
Q. Did anything else happen, either before or
after this, involving the Defendant?
A.   What do you mean?
Q. Did he ever pick you up at Sentinel High
School or Hellgate High School?
A.   Yes
Q.   Can you explain to the jury about that
incident?
A. Well, I was at work, and I was at Human
Resources, and I called up because I wanted to
spend the day with [B.L.], my sister. So I
called up, and I said, "Well, Steve, will you
bring me over so I can see [B.L.]?"     And he
said, "Sure." He said, "There's something I
want you to do, and I will pay you for it."
And I said,           He goes, "Well, I will
meet you at Hellgate." I did [sic],
          So he picked me up at Hellgate, and when I got
          in the truck, I go, "Well, what was it you
          wanted me to do?" He goes, "1'11 just tell
          you later," and I go, What, clean the house,
          clean dishes, some sewing?"      And he goes,
          "NO," and I go "Um." So he said, "1'11 tell
          you when we get back to the house,1tand I go,
          ' Okay .I8
          I


          So when we get back to the house, he was
          cleaning out the camper, either to go camping
          or just got back, and after that he goes,
          "Well, why don't you come in here and sit and
          talk to me," and I said, "Okay."
          Q.   In where?
          A. In the camper -- because we never had any
          problems before this. We had always gotten
          along okay.

          Q.   So this incident with the camper was
          before he touched you?
          A. This was before anything started. And so
          we were sitting in the camper just talking and
          everything.   He said, "I want to show you
          something," and he said, "1 will be right
          back." So he went in the house, came back in
          the camper, and he threw a magazine that was
          covered up on the table, and he went back in
          and he goes, "1'11 be back in a minute." And
          so I uncovered it, and it was like a Penthouse
          or something like that.
          Q.   Then what happened?
          A.  He came back in and he goes, "What do you
          think?" [I] go, "What do you mean, what do I
          think?" And I went, "I don't think so." So I
          went in and kissed my sister and I left.
     The majority opinion holds that the testimony of K.L. as to
the three other prior acts fails to reach the requisite standard of
sufficient similarity and is only evidence of Cristls character.
I disagree with this analysis.
     The showing of a pornographic magazine to K.L.,        then a
thirteen-year-old girl, stating that he was Ifgoing to get her
[K.L. ] drunk and take advantage of her" and telling her to take her
clothes off and put on a nightgown are indeed subtle forms of
grooming a child for an act of sexual abuse. The sexual assault to
which K.L. testified Crist subjected her followed very closely
after his three other acts grooming K.L. for the sexual assault
that followed.
     If, as the majority opinion holds, the actual sexual assault
upon K.L. is admissible as a prior act of Crist, then certainly
these other three prior acts are also admissible as a grooming of
K.L. for the sexual assault upon her, and cannot be held as not
similar.   These acts of grooming of K.L. are not only similar to
the actual sexual assault committed upon her but are a prelude and
inextricably a part of Cristls plan and sexual assault.
     Crist cannot complain that the admission of the testimony
concerning the other three prior acts prejudiced him.        He was
charged in Count Two with sexual abuse against B.C., an eight-year-
old boy, and the jury found him not guilty on this count. In Count
Three, Crist was charged with sexual assault upon J.S., a fourteen-
year-old girl, and the jury hung on this charge--eight for guilty
and four for innocent.   Count Three was thereafter dismissed.
     I would affirm the jury conviction and sentence imposed by the
District Court.
