State v. M. Thomas

2020 MT 281, 476 P.3d 26, 402 Mont. 62

Opinion

11/10/2020

DA 18-0209 Case Number: DA 18-0209

IN THE SUPREME COURT OF THE STATE OF MONTANA 2020 MT 281

STATE OF MONTANA,

Plaintiff and Appellee,

v.

MARLON DAUNTE THOMAS,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DC 16-1157 Honorable Rod Souza, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Chad Wright, Appellate Defender, James Reavis, Assistant Appellate Defender, Helena, Montana

For Appellee:

Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant Attorney General, Helena, Montana

Scott Twito, Yellowstone County Attorney, Brett Linneweber, Deputy County Attorney, Billings, Montana

Submitted on Briefs: July 22, 2020

Decided: November 10, 2020

Filed:

cir-641.—if __________________________________________ Clerk Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Appellant, Marlon Daunte Thomas, appeals his conviction entered in the

Thirteenth Judicial District Court, Yellowstone County. Thomas was convicted of two

felony offenses: Aggravated Promotion of Prostitution of B.M., a 17-year-old, in violation

of § 45-5-603(1)(b), MCA; and Promoting Prostitution of Z.T., a 19-year-old, in violation

of § 45-5-602(1)(c), We address the following issue on appeal:

Did the District Court abuse its discretion when it prohibited Thomas from referring to the victim’s prior participation in prostitution?

¶2 We conclude the District Court did not abuse its discretion and affirm Thomas’

conviction.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Agent Seder is a law enforcement officer with the Department of Justice, Division

of Criminal Investigation. He investigates crimes involving prostitution and

human trafficking and monitors websites known to advertise these crimes, such as

Backpage. Agent Seder’s primary responsibility is to identify young victims through

photos or terminology and rescue them.

¶4 B.M. was 17 years old when she got her own apartment. B.M.’s friend, Z.T., was

19 years old. Z.T. needed a place to live, so she moved into the apartment with B.M. Z.T.

met Thomas when she left B.M.’s apartment and Thomas was outside the building in his

car. Thomas asked for Z.T.’s phone number and the two exchanged numbers and texts.

Later, Z.T. invited Thomas to B.M.’s apartment and Z.T., B.M., and Thomas smoked

marijuana and the three had sex together.

2 ¶5 After Z.T. expressed she wanted to travel but did not have the money, Thomas

suggested she have sex in exchange for money. Z.T. said she did not like this idea but

thought B.M. might like it as a way to make money. Thomas then met with B.M. alone

and told her that Z.T. and B.M. were going to be prostitutes for him. B.M. thought Z.T.

had already agreed and she did not want Z.T. to get hurt and wanted to be there for Z.T.

B.M. told Thomas that she was only 17, which was “okay” with Thomas.

¶6 Thomas told B.M. that they would split the money from her “dates.” B.M. fixed

her hair and put on makeup, and Thomas told her what clothes to wear and how to pose for

photos he was going to take. Thomas used B.M.’s phone to take the pictures and place an

advertisement on Backpage. He told B.M. he wanted the ad to be “sponsored” so it would

be one of the first ads on the webpage and more noticeable. He and B.M. then went to

Walmart where Thomas bought a Vanilla card, a prepaid card, to sponsor the ad. B.M.

immediately began receiving calls and text messages after the sponsored ad was posted and

Thomas told her how to respond. After B.M. started receiving calls and text messages for

“dates,” Z.T. also wanted to make money, so Thomas took photos of B.M. and Z.T. posing

together in lingerie. Thomas purchased bitcoins, an online currency, with a Vanilla card

to place the ad of Z.T. and B.M. posing together on Backpage. Thomas used B.M.’s phone

to post the ad.

¶7 Thomas made the arrangements for the “dates,” told B.M. and Z.T. what to wear,

gave them rides to their “dates,” and waited nearby in his car until they were done. Z.T.

had only one “date” and received $120, keeping $60 for herself. Thomas got the other half

of the money. After this “date,” who was drunk and became angry with her, Z.T. was

3 frightened and told Thomas she did not want go on any more “dates.” B.M., who had only

known Thomas for four days, had four “dates,” which included regular intercourse and oral

sex. On one occasion, B.M. was required to buy condoms out of her portion of the “date”

money.

¶8 On October 27, 2016, Agent Seder saw B.M.’s advertisement on Backpage and

thought B.M. looked very young. He sent a text to the phone number listed and received

a response that her rate was $200 per hour. He traced the phone number and identified the

girl as B.M. He then arranged to meet B.M. at the Ledgestone Motel in Billings. Thomas

and Z.T. dropped B.M. off at the hotel but drove away when they became suspicious that

a nearby vehicle was the police. Inside the motel, Agent Seder met B.M., who identified

herself as “Marilyn.” B.M. was heavily made up, wearing a bra with a see-through fish net

top over it, leggings, and high heels. He took B.M. to his undercover vehicle and released

her to Child Protective Services. Eventually Z.T. and B.M. were forthcoming about

Thomas and his promotion of their prostitution. Thomas was located and charged with

aggravated promotion and promotion of prostitution.

¶9 Thomas’ first jury trial was scheduled for July 10, 2017. On July 5, 2017, the State

filed its trial brief, including motions in limine. Relying on § 45-5-511(2), MCA, and

Montana Rules of Evidence 404(b), 608, and 401, the State moved to prevent Thomas from

introducing any of Z.T.’s or B.M.’s sexual conduct that occurred prior to their involvement

with Thomas. Before jury selection on the first day of his trial, Thomas objected to the

pre-trial motion, arguing that § 45-5-511(2), MCA, only applied to Part 5 crimes

(“Sexual Crimes”) and not Part 6 crimes (“Offenses Against the Family”). At issue was

4 Z.T. prostituting herself at the age of 16 and becoming pregnant as a result. Thomas argued

Z.T.’s history was relevant because Z.T. claimed she had not known anything about

prostitution and learned about it only from Thomas. The State acknowledged Z.T. was

previously involved in an act of prostitution, which resulted in Z.T. becoming pregnant at

16, but clarified there were aspects of prostituting that Z.T. did not know about prior to

becoming involved with Thomas.

¶10 On the afternoon of Thomas’ first trial, the District Court issued a written order

granting the State’s motion. The order relied, in part, on § 45-5-511, MCA, concluding the

statute “reflects a very important policy in Montana of preventing trials from becoming an

inquest of a victim.” The District Court further concluded that any past sexual conduct of

B.M. and Z.T. was irrelevant in determining whether Thomas committed the alleged

offenses. The order prohibited Thomas from eliciting any testimony concerning B.M.

and/or Z.T.’s prior sexual conduct but permitted cross-examination should the State open

the door on such matters. The first trial ended in a mistrial and a new trial was scheduled

before a different judge.

¶11 Thomas’ second jury trial began on November 27, 2017. The District Court did not

relitigate the State’s previously granted motion in limine despite Thomas urging the court

to reverse the prior ruling. During trial, Agent Seder testified that he had interviewed

Thomas and that Thomas admitted he posted at least one ad on Backpage, gave B.M. and

Z.T. rides to their “dates,” and accepted some of the proceeds B.M. and Z.T. collected.

There was also testimony that he took photos of B.M. and Z.T. in lingerie. Thomas’

5 defense, however, was that he only provided technical assistance to B.M. and Z.T. and that

B.M. and Z.T. wanted to prostitute.

¶12 The jury found Thomas guilty of Aggravated Promotion of Prostitution of B.M. and

Promoting Prostitution of Z.T. Thomas argues on appeal that the District Court erred in

granting the State’s motion in limine. While the District Court’s order granting the State’s

motion addressed prior sexual conduct of both Z.T. and B.M., on appeal Thomas’ argument

appears slightly more nuanced. Thomas argues the District Court’s ruling prevented him

from discussing Z.T.’s prostitution history as motivating both hers and B.M.’s prostitution

activities. Our conclusion, however, disposes of either argument.1

STANDARD OF REVIEW

¶13 A district court’s ruling on a motion in limine is an evidentiary ruling and therefore

reviewed for an abuse of discretion. State v. Snell, 2004 MT 334, ¶ 17, 324 Mont. 173,

103 P.3d 503. A district court has broad discretion when determining the relevancy and

admissibility of evidence, and we will not overturn its determination absent a showing of

abuse of discretion. Snell, ¶ 17. Abuse of discretion occurs when a district court

“acts arbitrarily without conscientious judgment or exceeds the bounds of reason resulting

in substantial injustice.” Larchick v. Diocese of Great Falls-Billings, 2009 MT 175, ¶ 39,

350 Mont. 538, 208 P.3d 836. A district court is bound by Montana’s Rules of Evidence

and applicable statutes in exercising its discretion. State v. Lake, 2019 MT 172, ¶ 22,

1 Thomas moved for a mistrial when the State, during closing argument, commented on whether Z.T. and B.M. were “doing it on their own” prior to Thomas’ involvement. The District Court denied Thomas’ motion for mistrial. It also denied Thomas’ motion for a curative instruction. Thomas has not appealed the denial of either motion. 6 396 Mont. 390, 445 P.3d 1211. Accordingly, where a district court’s ruling is based on its

interpretation of a statute, this Court reviews the district court’s ruling de novo for

correctness. Lake, ¶ 22.

DISCUSSION

¶14 A person commits the offense of promoting prostitution “if the person purposely or

knowingly commits any of the following acts: (c) encourages, induces, or otherwise

purposely causes another to become or remain a prostitute.” Section 45-5-602(1)(c), MCA.

Thomas was charged with having promoted prostitution of Z.T., an adult. A person

commits the offense of aggravated promotion of prostitution “if the person purposely or

knowingly commits any of the following acts: (b) promotes prostitution of a child, whether

or not the person is aware of the child’s age.” Section 45-5-603(1)(b), MCA. Thomas was

charged with aggravated promotion of prostitution of B.M., who was a child.

¶15 Thomas argues that the District court abused its discretion when it prohibited him,

under § 45-5-511, MCA, and Montana’s Rules of Evidence, from referring to Z.T.’s prior

participation in prostitution as a 16-year-old. Thomas’ theory of relevance is that Z.T.’s

prostitution history, combined with her need for money to pay for travel, makes it more

likely that Z.T., rather than Thomas, initiated her and B.M.’s prostitution plans. Thomas

maintains that this evidence went to the core of his defense and prohibiting its admission

prejudiced his ability to present a complete defense. The State contends the evidence was

not relevant under M. R. Evid. 402 and was also inadmissible propensity evidence under

M. R. Evid. 404(b). We conclude the proposed evidence was inadmissible under

7 Rules 401, 402, and 404(b), and that, this being dispositive, it is not necessary to address

whether § 45-5-511, MCA, applies to Part 6 crimes (“Offenses Against Family”).

¶16 Evidence is relevant if it will “make the existence of any fact that is of consequence

to the determination of the action more or less probable than it would be without the

evidence.” M. R. Evid. 401. If the evidence has any value “as determined by logic and

experience, in proving the proposition for which it is offered,” then it is considered

relevant. State v. Ellison, 2018 MT 252, ¶ 11, 393 Mont. 90, 428 P.3d 826. Under

Rule 402, “[a]ll relevant evidence is admissible, except as otherwise provided by

constitution, statute, these rules, or other rules applicable in the courts of this state.

Evidence which is not relevant is inadmissible.” Applying these rules, Z.T.’s prior

involvement with prostitution is admissible under Rule 402 if it is relevant to the existence

of any fact which is of consequence in Thomas’ case, provided some other rule does not

preclude its admission. Relevant evidence may include “evidence bearing upon the

credibility of a witness.” M. R. Evid. 401.

¶17 Here, Z.T.’s prior history of prostitution is not relevant to whether Thomas caused

her to “become or remain a prostitute,” and exclusion of Z.T.’s prior history did not prevent

Thomas from asserting his defense. First, Thomas is claiming that exclusion of the

evidence prevented him from presenting a complete defense, in this case, an alternative

explanation for how the prostitution came about. However, Agent Seder’s testimony

indicated that Thomas admitted he posted at least one ad on Backpage, gave B.M. and Z.T.

rides to and from their prostitution calls, and accepted some of the proceeds B.M. and Z.T.

collected. He also took photos of B.M. and Z.T. in lingerie. Even assuming Z.T. was still

8 engaged in prostitution as a 19-year-old, Thomas’ admissions to Agent Seder show, at a

minimum, that he encouraged B.M. and Z.T. to remain prostitutes. The fact of

consequence and at issue was whether Thomas encouraged, induced, or otherwise caused

B.M. and/or Z.T. to become or remain prostitutes. Thomas’ defense theory rested on his

portrayal of Z.T. as already having knowledge of and experience with prostitution, and

Thomas argues that he did not cause them to prostitute. He asserts that he helped set up

photo shoots, posted a Backpage ad, and gave rides, but did not have the mental state of

purposely or knowingly encouraging, inducing, or otherwise purposely causing B.M. or

Z.T. to become or remain prostitutes. However, whether Z.T. participated in prostitution

as a 16-year-old and became pregnant has no tendency to make whether Thomas

encouraged, induced, or otherwise caused B.M. and/or Z.T. to participate in or remain in

prostitution three years later, more or less probable. Moreover, Thomas’ argument that the

excluded evidence prevented him from presenting a complete defense is futile because his

own admissions to Agent Seder precluded his alternative explanation.

¶18 Thomas argues the evidence was admissible under M. R. Evid. 404(b) to show

Z.T.’s predisposition to engage in prostitution and/or to explain how she imparted her

knowledge of prostitution onto B.M. Rule 404(b) states 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.” 404(b) is not a bar to the admission of evidence; rather, the rule

bars a theory of admissibility of using evidence of other crimes, wrongs, or acts to prove a

person’s subjective character in order to show conduct in conformity with that character

9 on a particular occasion. State v. Dist. Court of the Eighteenth Judicial Dist., 2010 MT

263, ¶ 47, 358 Mont. 325, 246 P.3d 415.

¶19 Evidence of prior bad acts is prohibited under 404(b) unless the proponent can

“clearly articulate how that evidence fits into a chain of logical inferences . . .,” no link of

which can be propensity. State v. Daffin, 2017 MT 76, ¶ 15, 387 Mont. 154, 392 P.3d, 150.

Thomas argues the evidence was admissible under Rule 404(b) to show Z.T.’s

“predisposition to engage in prostitution during times of financial strain.” Thomas’ theory

of admissibility is, therefore, that Z.T. had a propensity to engage in prostitution when she

needed the money—Z.T. was a prostitute before, making it more likely that she returned

to prostitution, and she imparted such knowledge on B.M. This is clearly propensity

evidence and is inadmissible under Rule 404(b). As a final matter, Z.T. was employed

when she met Thomas, and other than Thomas’ self-serving statements, there was no

evidence Z.T. could not pay her bills.

¶20 In a slightly more nuanced argument, Thomas also argues that Z.T.’s prostitution

history can explain how she imparted her knowledge and intent of prostitution onto others,

such as B.M. In essence, Thomas’s non-propensity Rule 404(b) theory of admissibility

was that it was either Z.T.’s or B.M.’s idea for B.M. and Z.T. to engage in prostitution, not

his, based on Z.T.’s prior knowledge and experience with prostitution, B.M.’s financial

need or desire to engage in prostitution, and B.M.’s desire to not disappoint Z.T. by not

joining her in doing so. However, while Thomas has articulated a non-propensity theory

of relevance, his proffered Rule 404(b) evidence is inconsistent with his undisputed

admissions that he took sexually suggestive photos of B.M. and Z.T. for use in an ad

10 promoting them as prostitutes, posted the ad as a Backpage ad, and further assisted them

in engaging in prostitution by giving them rides to their prostitution “dates.” Regardless

of whether it may have been Z.T.’s or B.M.’s idea and decision to engage in prostitution,

Thomas’ admissions were admissions of facts constituting knowing encouragement and

promotion of B.M. to engage in prostitution for purposes of §§ 45-5-602(1)(c)

and -603(b), MCA. Inconsistent with his articulated theory of non-propensity relevance,

the proffered Rule 404(b) evidence was thus not probative for the proffered purpose under

M. R. Evid. 401 and 402. Under these circumstances, any arguable or tangential relevance

for the asserted non-propensity purpose was further substantially outweighed by the danger

of unfair prejudice and confusion of the issues in any event. Therefore, regardless of

Thomas’s articulated non-propensity theory of admissibility, the District Court properly

excluded the evidence of Z.T.’s prior knowledge and experience with prostitution under

M. R. Evid. Rules 401, 402, and 403.

¶21 We have previously stated that “[t]he purpose of a motion in limine is to prevent the

introduction of evidence which is immaterial, irrelevant, or unfairly prejudicial.”

Meredith, ¶ 42 (citing State v. Krause, 2002 MT 63, ¶ 32, 309 Mont. 174, 44 P.3d 493).

Accordingly, the authority to grant or deny a motion in limine is part of the inherent power

of a court to admit or exclude evidence necessary to afford a fair trial. Meredith, ¶ 42.

Because Thomas has not demonstrated that Z.T.’s prior involvement in prostitution or

B.M.’s prior sexual conduct tends to make any fact of consequence to the determination of

whether Thomas encouraged them to become or remain prostitutes, we conclude the

evidence is not relevant under Rules 401 and 402. The evidence also constitutes

11 inadmissible propensity evidence under Rule 404(b) with no permissible theory of

relevance. The District Court did not abuse its discretion in prohibiting its admission.

CONCLUSION

¶22 We conclude that the District Court properly exercised its discretion in excluding

evidence related to Z.T.’s prior involvement with prostitution under Rules 401, 402, and

404(b). We hold that the District Court did not abuse its discretion and we affirm Thomas’

¶23 Affirmed.

/S/ LAURIE McKINNON

We Concur:

/S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ BETH BAKER /S/ DIRK M. SANDEFUR