SEX ABUSE OUTLINE INDEX
Case Summary and Comment
Prepared by Karen S. Townsend
Deputy County Attorney
Missoula, Montana
Charging ............................................1-6
Applicable Statutes.............................1-4
Statutes of Limitations......................... 4
Charging Language and time frames...............4-6
Pre-Trial Issues....................................6-14
Discovery......................................6-10
Medical, Psychological, Alcohol treatment,
DFS records of victim......................6-8
Defense Medical or Psychological exam of
victim ....................................8-9
Personal interview of victim..............9-10
Depositions......................................10
Personnel records of Defendant..............10
Confessions...................................10-11
Speedy Trial..................................11-13
Joinder/Severance................................13
Continuance...................................13-14
Trial Issues.......................................14-45
Jury Selection................................14-15
Double Jeopardy...............................15-16
Character Evidence of Victim, state's witness.16-19
Sexual Preference of Defendant...................19
Exhibits......................................19-20
Victim's Testimony............................20-23
Competency...............................20-21
Manner of victim testifying..............21-23
By means of videotape...............21-22
On prosecutor's lap....................22
Protected by screen.................22-23
Limit on cross of lay witness.................23-24
Identification Evidence..........................24
Expert Witnesses..............................24-28
Credibility of child witness.............24-27
Objecting to preserve appeal rights.........27
Admissibility criteria...................27-28
Qualification of expert.....................28
DNA........................................ 28
Hearsay Statements by experts.................28-30
Hearsay Statements by witnesses..................30
Other Acts Evidence...........................30-35
Sufficiency of Evidence.......................35-39
Request by Jury to rehear testimony...........39-40
Juror Misconduct.................................40
Prosecutorial Misconduct......................40-42
Instructions..................................42-44
Jury Deliberations............................44-45
Sentencing.........................................45-48
General provisions............................45-46
PSI reports: Hearsay/Sex Offender Evaluation..46-47
Mental Disease or Defect in sentencing...........47
Sex Offender Treatment........................47-48
MONTANA COUNTY ATTORNEY'S ASSOCIATION
Presentation on
SEXUAL ABUSE CASES IN MONTANA
Cases and Commentary by Karen S. Townsend
Deputy County Attorney
Missoula County Attorneys Office
Missoula, Montana
September 16, 1997
This outline attempts to bring together the majority of the applicable statutes and case law pertaining to cases of sexual intercourse without consent and child sexual assault in Montana. Emphasis is placed on cases decided between 1988 and 1996, however, where there have been no recent cases on the issue, earlier cases are included. The annual attorney general summary of criminal cases decided in Montana for each year from 1979-1996 has been consulted on a regular basis, and abstracts from those summaries are included here as appropriate to the point under discussion. There has been no attempt to include statements or case law concerning such general issues as arrest, search and seizure, right to counsel, guilty pleas, appeal rights, etc. The general principles applicable to other areas of substantive criminal law in Montana law on these areas apply to child sexual assault as well. The annual AG summaries are excellent resources for answers to your questions in these areas.
OUTLINE OF PRESENTATION
I. CHARGING
A. Applicable statutes.
1. 45-5-503. Sexual Intercourse without consent. Carries penalty of at least two (2) and not more than 100 years MSP and/or a $50,000.00 fine if victim sixteen (16) years old or older. If victim less than sixteen (16) and the offender is three (3) or more years older or there is bodily injury, then the penalty is at least two (4) and not more than 100 years MSP with the same fine. If there is a "gang rape" as defined by subsection "b", the penalty is not less than 5 years nor more than 100 years. The offender is also expected to pay for the victim's reasonable medical and counseling costs resulting from the attack. The current statute requires you to prove penetration of the vagina, mouth oranus and applies only to cases in which the victim and offender are of the opposite sex. The 1991 Legislature changed the statute and changed the provision on opposite sex and as of October 1, 1991, this crime can apply to same sex incidents.
2. 45-5-502. Sexual Assault. Carries a misdemeanor penalty if the victim is sixteen (16) or older and is not hurt. If the victim is less than sixteen (16) and the offender three (3) or more years older or if the victim is injured, the penalty is not less than two (2) nor more than 100 years MSP and/or a $50,000.00 fine. This statute requires proof of "sexual contact" between two persons not married to each other. It can be applied when the parties are of the same sex.
3. 45-5-505. Deviate Sexual Conduct. Carries a penalty of ten (10)
years MSP and/or a $50,000.00 fine. This statute requires proof of "deviate sexual relations" which is defined as sexual contact or sexual relations between two persons of the same sex. The statute also provides that a prosecution cannot be based on the fact that a party has sought HIV testing or treatment, and those facts are not admissible in any trial. This statute was declared unconstitutional under the Montana Constitution's privacy provisions in Gryczan v. State, 54 St.Rep. 699 (1997).
4. 45-5-507. Incest. Carries a penalty of life, or one hundred (100) years MSP and/or a fine of $50,000.00 if the victim is sixteen (16) years or older and a penalty of life imprisonment or not less than four (4) years or more than one hundred (100) years MSP and the same fine if the victim is less than sixteen (16) and the offender is three (3) or more years older. The offender can also be asked to be responsible for medical and/or counseling costs. This statute requires proof of either sexual intercourse or sexual contact between two parties of specified relationships. It includes relationships between blood relatives and those related by adoption. Consent is a defense if the offense occurs between a stepfather and stepson or daughter, although consent is ineffective if the victim is less than eighteen (18).
5.45-5-625. Sexual Abuse of Children. This statute punishes the use of children in photographic depictions of actual or simulated sexual contact. The statute carries a penalty of one hundred (100) years MSP and/or a fine of $10,000 or a penalty of not less than four (4) nor more than one hundred (100) years and a fine of $10,000 if the victim is less than 16 years of age, or a penalty of ten (10) years and a fine of $10,000 if the defendant merely possesses the material showing children in the prohibited acts. The statute covers all persons who do the filming, process the films, publish the films, transport the films, sell the films, possess the films with the intent to sell them, oradvertise the films.
6.45-5-501. Defines the term "without consent". Without consent means that a victim is compelled to submit by force, threat of imminent death, bodily injury, or kidnapping to be inflicted on anyone; or that the victim is incapable of consent because he/she is mentally defective or incapacitated; physically helpless; or less than 16 years old. This statute was amended in the 1991 legislature to broaden the definition of "force". This amendment was necessary in light of the Montana Supreme Court decision in State v. Gerald Roy Thompson, 243 Mont. 28, 792 P.2d 1103 (1990) which held that psychological pain and fear did not amount to force as defined in the statute. The amended statute which carried an immediate effective date defines force as: a) the infliction or attempted infliction of bodily injury or the commission of a forcible felony by the offender; or b) the threat of substantial retaliatory action that causes the victim to reasonably believe that the offender has the ability to execute the threat.
7.45-5-511. This section contains several provisions which are applicable to sexual crimes. Included are: 1) If the lack of consent is based on age, the defendant may defend on a reasonable belief that the victim was more that 16 unless she is less than 14. 2) If the offenses involve the term spouse, that term applies to people living as husband and wife, even if there has been no legal marriage. However, if the spouses are living apart, there is no need for a legal separation or divorce for a statute to apply. 3) This section is Montana's rape shield law. 4) This section provides that a failure to make a timely complaint does not raise any presumption on credibility of the victim. 5) The last section provides that the victim does not have to offer formal resistance to prove lack of consent.
8.45-2-101(60). Sexual contact. Sexual contact means any touching of the sexual or other intimate parts of the person of another for the purpose of arousing or gratifying the sexual desire of either party. In 1980, the Montana Supreme Court held that the prescribed conduct is not limited to touching of the anal or genital areas of a male or female or the breast of a female, and found that the rubbing of the belly and chest of a prepubescent female child was covered. State v. Weese, 189 Mont. 464, 616 P.2d 371 (1980). In State v. Gilpin, 232 Mont. 56, 756 P. 2d 445 (1988), the Court held that touching the buttocks area even though the touching was on the clothes and not under the clothes met the prohibition of the statute even though the defendant argued that the touching had to be under the clothing to beprohibited. However, in State v. Kestner, 220 Mont. 41, 713 P.2d 537 (1986), the Court cautioned against using any instruction in defining sexual assault other than the statute.
9.45-2-101 (61). Sexual Intercourse. Sexual Intercourse means penetration of the vulva, anus, or mouth of one person by the penis of another person, penetration of the vulva or anus of one person by any body member of another person, or penetration of the vulva or anus of one person by any foreign instrument or object manipulated by another person for the purpose of arousing or gratifying the sexual desire of either party. Any penetration, however slight, is sufficient. A child's testimony that he saw the Defendant "touch" the victim's vagina a "lot of times" does not establish penetration as required under this definition. State v. Cates, 241 Mont. 282, 787 P.2d 319 (1990).
B.Statutes of Limitations.
1.45-1-205 provides that in general, prosecutions for felony offenses must be commenced within five (5) years after the event occurs; prosecutions for misdemeanors must be commenced within one (1) year after the event occurs.
2.This statute provides an exception for prosecutions brought under sexual offense statutes if the victim was less than eighteen (18) at the time of the event. In these cases, prosecutions can be brought up to five (5) years after the victim reaches eighteen (18).
C.Charging language.
1.Charging language and time frames: The Montana Supreme Court has given some flexibility in allowing prosecutors to charge sexual offenses using lengthy and fairly vague time references when charging sexual offenses. In State v. Clark, 209 Mont. 473, 682 P.2d 1339 (1984), the Court stated that it was ok for the prosecution to amend the information to make the dates of the offense less certain where this is necessary to make it comport with the recollection of juvenile witnesses in a statutory rape case. In State v. Sanderson, 214 Mont. 437, 692 P.2d 479 (1985), the Court approved an information charging that the stated offense took place "between Rockvale and Edgar" holding that such language sufficiently apprised the defendant of the charges against him where he had not committed so many similar crimes in the general vicinity that he was confused asto just which sexual intercourse without consent the prosecution was referring to. In State v. D.B.S., 216 Mont 234, 700 P.2d 680 (1985), the Court held that an information which indicated a ten-month period from January 1, 1983-October 28, 1983 was sufficiently specific where it would have been an impossible burden for Defendant to offer an alibi for a ten-month period while he had custody of the victim. The Court also stated that the broad time frame did not subject the Defendant to possible double jeopardy. The Court further held that an information may be less specific where time is not a material ingredient in the offense and where a child victim is unable to apply times or dates to significant events in his or her life. In State v. Cornell, 220 Mont. 433, 715 P.2d 446 (1986), the Court stated that a Defendant was given sufficient notice as to the acts involved to assert an alibi defense. The information charged that the offenses of sexual assault took place "in the summer of 1984". The Court further stated that the statute does not require that the exact time, date, month or even year be specified. The Court referred to 46-11-401 (1)(c)(iv) and held that the language used complied with the requirement of that statute that the Defendant be given "general" notice of the charge against him and with the portion of that statute which requires the charge state the "time and place of the offense as definitely as can be done." The Court found that the charging language was enough so that the defendant could prepare a defense or assert an affirmative defense. In State v. Little, 260 Mont. 460, 861 P.2d 154 (1993), the Court held that charging language which stated that the offense was committed "on or about 1987-1988" and "on or about 1990" alleged the dates with sufficient particularity, even though defendant asserted alibi defense. Victims' statements indicated that defendant repeatedly subjected them to sexual acts, and therefore assertion of an alibi defense does not make time a material ingredient.
2.In State v. Steffes, 269 Mont. 214, 887 P.2d 1196 (1994), the Court held that the Information charging the defendant with deviate sexual conduct was not insufficient for failing to include the definition of sexual contact within the charging document. The Court held that a charging document need not contain definitions of all legal terms of art used in the statute creating the offense.
3.In State v. Sage, 255 Mont. 227, 841 P.2d 1142 (1992), Defendant was charged with Solicitation with the underlying crime being incest. Defendant argued he could not be charged with the crime because he was soliciting a "victim" and not someone to commit an offense. The Court rejected his argument and upheld the conviction reasoning thatthe person's status is neither an element of nor a defense to the crime of solicitation.
4.In State v. Black, 270 Mont. 329, 891 P.2d 1162 (1995), defendant was charged with sexual intercourse without consent, but convicted after a bench trial of sexual assault. The court assumed, for the purpose of the appeal, that sexual assault was a lesser included offense of sexual intercourse without consent, and held that defendant was given sufficient notice of a possible conviction for sexual assault by the information charging him with sexual intercourse without consent based on 46-16-607(1).
II.Pre-Trial Issues.
A.Discovery.
1.Medical, psychological, alcohol treatment or DFS records of the victim. In general, the Montana Supreme Court has refused to order general disclosure to the defense of a victim's medical, psychological, alcohol treatment or DFS records if the case involves a sexual offense. It is, of course, a requirement that if there is any exculpatory material in any of these records in the hands of the State, that portion of the records must be supplied to the defense. Frequently the Court has approved an in camera review of these records by the presiding trial judge to determine if there is any exculpatory material and a finding by the trial judge that the records contain no such material. In State v. Donnelly, 244 Mont. 371, 798 P.2d 89 (1990), the issue was discovery of a set of psychological treatment records for an incest victim. The victim had received treatment for psychological problems from one psychologist prior to her disclosure of the sexual attacks. Following disclosure, she began treatment with a woman therapist who specialized in sexual abuse. The defense sought access to treatment records from both therapists. The district court granted access to the woman therapist's records as she was to be a state's witness, but denied access to the other records after reviewing them in camera, balancing the privacy rights of the victim with the need of the defense to have access to exculpatory material, and determining that there was no exculpatory material in the records to which access was denied. The defense argued that his confrontation rights mandated that he should have access to the records, but the Court disagreed. The Court reaffirmed its holding in State v. Reynolds, 243 Mont. 1, 792 P.2d 1111 (1990) in which the Court also held that a defendant's right to review medical and psychological records of avictim in an incest case is outweighed by the child's right to confidentiality under Montana statutes. The Court refused in both cases to apply the Montana confrontation clause any broader than did the U.S. Supreme Court in Pennsylvania v. Ritchie, 480 U.S. 39, (1987). In Donnelly, the Court held that the Defendant's confrontation rights were protected by his ability to cross-examine both the expert and the victim at trial. The Court refused to hold that access to the file was necessary to allow effective cross-examination on the part of the defense. The Court also stated that since the victim was the daughter of the defendant, that he was well aware of the psychological problems that she had and if there had been anything in her history relevant to her possible bias, motive, or prejudice, he would have known. The Court reached a similar conclusion in State v. Thiel, 236 Mont. 63, 768 P.2d 343 (1989), when the Court held that the child abuse confidentiality statute does not violate a defendant's right to confront witnesses or discover exculpatory evidence. In that case, the trial court had refused to disclose the entire investigative file of a social worker. The reasoning in Thiel, was used to support the holding in Donnelly. The Court applied similar reasoning in State v. Mendenhall, 219 Mont. 328, 721 P.2d 1255 (1985), when the Court approved the denial of access to a juvenile victim's alcohol treatment and youth court records. The sixteen year old victim of a rape case had been a patient at the Shodair Children's Home and the St. Patrick chemical dependency center. The defense argued that access to the records was necessary to enable preparation of an adequate defense of the victim's possible biases, prejudices or ulterior motives which might surface in her testimony. The defense urged the court to apply Davis v. Alaska, 415 U.S. 308 (1974) and State v. Camitsch, Mont. , 626 P.2d 1250 (1981) and rule that the confrontation clause required disclosure. In this case, the trial court conducted an in camera inspection of all the records and concluded that no exculpatory material was included. The Montana Supreme Court distinguished Davis and Camitsch and ruled the refusal to disclose was proper and held that the confrontation clause does not require a criminal defendant be allowed to impeach the credibility of a victim by compromising the confidentiality of medical treatment or Youth Court records. The Court found important that the jury was informed that the victim had been drinking on the night of the attack, and further that the evidence of the defendant's guilt "was overwhelming." This case is not discussed in Thiel, Reynolds, or Donnelly. Since the decision in Donnelly, the Court has continued to find that defendants have no right to view child's counseling records. A similar result was reached in State v. Goodwin, 249 Mont. 1, 813 P.2d 953 (1991). In State v. Scheffelman, 250 Mont. 334, 820 P. 2d 1293 (1992) and State v. Rhyne, 253 Mont. 513, 833 P.2d 1112, (1992), the Court continued to hold to this policy. In Scheffelman, the Court conducted an in camera review of the records and determined that they were not useful or exculpatory. The Court rejected the contention of the defense that the records were needed to dispel the impression that the counseling was for sex abuse, and further to show that the victim did not suffer from rape trauma syndrome. The Court held that neither reason was sufficient to gain access to the records. In Rhyne, the Court did not conduct an in camera review of the records in question, but the Court found that such a review was unnecessary since the author of the records was not a witness called in the trial. The two most recent decisions in this area are State v. Little and State v. Muir. In State v. Little, 260 Mont. 460, 861 P.2d 154 (1993), defendant sought access to DFS files. The trial court conducted an in camera inspection and concluded that there were no materials which were subject to disclosure. The Supreme Court held that such inspection was sufficient to protect defendant's rights. Defendant further sought discovery of the victims' counselor's notes. The State argued that they did not have custody of those notes, and they did not intend to call the counselor as a witness. The defense then subpoenaed the witness and demanded an in camera inspection of the notes by the Court. The trial court declined to inspect the notes in camera, and the counselor testified that the notes contained no exculpatory evidence and no evidence that the victims were fabricating their allegations against the defendant. The Supreme Court held that no statutory authority permits or requires a district court to make an in camera inspection of counselor's notes and further since the State did not call the counselor as a witness or use the notes to prepare its case, there was no error. In State v. Muir, 263 Mont. 211, 867 P.2d 1094 (1994), the Court reached a similar conclusion as in Little when the Defendant sought access to records on the victim from the Yellowstone Treatment Center.
2.Defense requests for a medical or psychological exam of the victim. The Montana Supreme Court has not been receptive to defense requests that they be permitted to have their own expert psychologically examine the victim of a sexual offense. This general holding applies both to child and adult victims of sexual offenses. In State v. Liddell, 211 Mont. 180, 685 P.2d 918 (1984), the Court held that where a rape victim's state of mind was not at issue, the district court properly refused to order her examined by defendant's psychologist. In State v. Gilpin, 232 Mont. 56, 756 P.2d 455 (1988),the Court held that the district court properly denied the defendant's motion to compel psychological examination of the sexual assault witnesses. Expert testimony regarding such examination may be admissible, but is not required. The State is not required to prove psychological trauma, and a defendant cannot force the psychological evaluation of a child victim of sexual assault. The defendant in the Gilpin case has attacked his conviction by means of habeas corpus raising again in the federal courts this issue of the denial of a psychological examination of the victim. In Gilpin v. McCormick, 921 F.2d 928 (9th Cir. 1990), the 9th Circuit held that the court's denial of the requested psychological examination was not a denial of the defendant's due process rights. The Court reasoned that the United States Supreme Court rulings in Maryland v. Craig, 110 S. Ct 3157 (1990) and Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982) grant certain protections to juveniles (being permitted to testify out of sight of the defendant and denial of press access) and thus the refusal of a state to require defense psychological exams of child victims was proper. The 9th Circuit also ruled that the defendant's confrontation rights were not abridged by the court's refusal to order the exam. The Court stated that the confrontation clause only guarantees "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense may wish." In 1991, the Court reached a similar conclusion when the Defendant requested that the victim undergo a medical examination. In State v. Goodwin, 249 Mont. 1, 813 P.2d 953 (1991), the Court stated that victims are witnesses, not parties. "As we have repeatedly admonished, to hold otherwise would permit the defense to try the victim of the crime and divert the jury's attention from the primary issue---the guilt or innocence of the defendant." The Court reached a similar conclusion in State v. Crist, 253 Mont. 442, 833 P.2d 1052 (1992) and in State v. Little, 260 Mont. 460, 861 P.2d 154 (1993), and also held in Little that the Defendant could not compel a victim to undergo a medical examination, quoting from its opinion in Goodwin.
3.Right to defendant to personally interview victim. The Montana Supreme Court held in State v. Smith, 235 Mont. 99, 765 P.2d 742 (1988) that the accused does not have the constitutional right to interview the victim/witness personally. That opinion further holds that reasonable restrictions on the accused's access to victim comports with the guarantees of the confrontation clause. Witnesses are entitled to have a voice in the conditions of interviews and depositions.
4.Depositions. Although section 46-15-201 MCA permits depositions in criminal cases under certain circumstances, the circumstances are extremely limited. In State v. Pecora, 190 Mont. 115, 619 P.2d 173 (1980), the Montana Court held that a defendant was not entitled to take a deposition of a rape victim's sister and brother simply because they refused to be interviewed unless accompanied by a member of the County Attorney's office. This case stated that witnesses are able to insist on reasonable conditions for pre-trial interviews. In State v. Tilly, 227 Mont. 138, 737 P.2d 484 (1987), the Court held that the trial court's refusal to order an immediate deposition of an incest victim after the trial had been continued over the defendant's objection because the victim was in psychiatric treatment as a result of the defendant's actions and not available to testify because of her mental condition was not error. In this case, the defense counsel was permitted to conduct an informal interview of the victim at the treatment facility and was given complete access to the state's files.
5.Personnel records of Defendant. In State v. Burns, 253 Mont. 37, 830 P.2d 1318 (1992), the State sought access by means of Investigative Subpoena to the personnel files maintained by the Catholic Diocese on a priest charged with Deviate Sexual Conduct. The State contended that the files contained reports of similar instances of misconduct, disciplinary actions, and witness names for rebutting character evidence. The trial court conducted an in camera inspection of the records and ruled the information was not discoverable on grounds of privacy rights. The Supreme Court upheld the trial court's ruling concluding that the Diocese had a privacy right in its personnel records, and suggesting that the records were not necessarily probative anyhow.
B.Admissibility of Confession. The admissibility of a confession in child sexual assault cases is handled in the same way as in any other case. The issue is voluntariness. The Court will look to whether the Defendant has been threatened, had improper promises or inducements made to him, and/or given his Miranda rights. In State v. Mayes, 251 Mont. 358, 825 P.2d 1196 (1992), the defendant admitted to having "inappropriately touched" one of his daughters about one year earlier while he was being given a polygraph examination. The examiner questioned the defendant further, and then the defendant requested that he be allowed to consult with his attorney. The Court concluded that the defendant's statements to the examiner were not voluntary and should have been suppressed because the defendant had been deprived of sleep, he was on the road and had been separated from his children, was questioned continuously, and had been lied to by agentsregarding the evidence against him. In State v. Craig, 262 Mont. 240, 864 P.2d 1240 (1993), the Supreme Court found that a confession given by the defendant after he had taken a polygraph and was told he had lied, was a coercive tactic and made the confession inadmissible. In this case, the defendant had had plenty of sleep, the police officers did not fabricate evidence, or tell defendant that they had evidence that did not exist. The Court stated: "We condemn the use of the results of polygraph examinations to elicit or coerce a confession from defendants." In State v. Hermes, 273 Mont. 446, 904 P.2d 587 (1995), Defendant's confession regarding sexual misconduct with a minor was involuntary where police confronted Defendant at his home in an isolated area, "barked" questions at him while Hermes was sitting inside a pickup truck with them, and failed to tell Hermes why they were there. The Court stated that Hermes' education was limited and he felt that he could not leave the pickup while being questioned. The Court deferred to these findings of fact by the district court judge and affirmed the order suppressing Hermes's confession. In State v. Fuller, 915 P.2d 809 (1996), the Court ruled that incriminating statements made by the defendant as part of a court-ordered sex offender treatment program were obtained in violation of the privilege against self-incrimination and could not be used against him in a criminal prosecution.
C.Speedy Trial. The general rules applying to speedy trial decisions apply in cases of child sexual assault. The Court will employ the Barker-Wingo four-part balancing test, will look at the reason for the delay if the delay is more than 180 days and will assess delay against the defendant only if the defendant asks for the delay. In State v. Croteau, 248 Mont.403, 812 P.2d 1251, (1991), the Court held that a Defendant cannot be placed in a position of seeking a continuance and thus waive his speedy trial rights when provided late notice of other acts material. In State v. Gould, 273 Mont. 207, 902 P.2d 532 (1995), commented that the signed speedy trial waivers did not constitute a "total waiver" of defendant's right to a speedy trial since they were limited to specific time periods. In State v. Weeks, 270 Mont. 63, 891 P.2d 477 (1995), two delays were attributed to the Defendant, one in which he asked for a continuance of the trial date and waived speedy trial, and the other where he filed a motion in limine objecting to DNA evidence and an evidentiary hearing was necessary. His speedy trial claim was denied. In the 1993 case of State v. Scott, 257 Mont. 454, 850 P.2d 286 (1993), the Court looked at a 256 day delay which the Court found sufficient to trigger the Barker-Wingo analysis and the Court then looked to see whether there was a reasonable excuse for the delay or whether the defendant suffered any prejudice due to the delay. The two delays were caused because first, it was not in the child's best interest for her to be subjected to extensive and intensive interviewing until she had undergone more therapy, and second,additional time was needed for a therapist to make an accurate assessment of her ability to testify. The Court found these reasons valid, but went on to see if there was any prejudice to the defendant, and concluded that his contention that his defense was impaired due to the delay was not the case. The Court found that the details that the child witnesses were unable to recall actually helped his case instead of hurting it. In State v. Jack Hall, 244 Mont. 161, 797 P.2d 183 (1990), the Court examined a 207 day delay between the defendant's arrest and the trial in a child sexual-assault case. The Court found that the defendant's actions resulted in some of the delay, and despite pre-trial incarceration, the defendant was not unduly prejudiced nor did his ability to mount a defense diminish as a result of the delay. In this case, some delay resulted because of a delay in obtaining lab results, and other delay resulted because the defense expert suffered a heart attack and had to recover and there was further a need to complete pre-trial discovery by both sides. In State v. Reynolds, 243 Mont. 1, 792 P.2d 1111 (1990), the Court held that the State was able to provide a reasonable excuse for delay when the material witness was unavailable to testify due to illness caused largely by the defendant. Further there was no prejudice from the delay when the defendant was free on bond and able to continue working. In this case the delay was 257 days. The Court held that the State was responsible for 243 of those days. These delays were caused because the victim's guardian ad litem requested two continuances informing the court that she would suffer deep psychological harm if she were forced to testify at that time. The victim had made suicide attempts during the delay period. In State v. Tilly, 227 Mont. 138, 737 P.2d 484 (1987), there was a total delay of 312 days between the defendant's arrest and his trial. Defendant was incarcerated during the entire period. The Court held that his speedy trial rights were not violated because the victim was temporarily unavailable to testify due to emotional instability. Her illness was due in large part to the defendant's unlawful acts. After he was charged and during his stay in jail, he wrote 12 "love letters" to the victim in violation of repeated court orders. The State is not charged with speedy trial delay when a material witness with a "valid reason" is not available. Here the valid reason existed where the material witness was unavailable due to defendant's unlawful acts. During the delay, the victim spent most of the time being treated for emotional problems at the Montana Youth Treatment Center in Billings. The Court also found that various actions by the Defendant and his two attorneys accounted for 192 of the days of delay. Of importance in this case is the Court's statement that "One may expect a certain amount of anxiety and concern when accused of a crime", when addressing the issue of prejudice to the defendant. Although not a sexual assault case, State v. Bartnes, 234 Mont. 522, 734 P.2d 1271 (1988) holds that pre-indictment delay is irrelevant to speedy trial claims brought under Sixth Amendmentauspices although it will be analyzed under the due process clause. When looking at a speedy trial claim under due process analysis, the Court will look to whether or not the delay caused substantial prejudice to the defendant's right to a fair trial and whether the delay was used as an intentional device to gain a tactical advantage over the accused. Under this analysis, the defendant has the burden of proving actual prejudice. This case should be kept in mind in case you are faced with a lengthy investigation of a multi-defendant sexual abuse case before deciding whether or not to file any charges.
D.Joinder/Severance. In State v. Howie,228 Mont 497, 744 P.2d 156 (1987), Defendant was charged with three counts of Sexual Assault all involving the same victim. At the close of the State's case, the District Court dismissed Count I. The jury found the Defendant not guilty of Count II and guilty of Count III. On appeal, the defendant argued that the trial court should have severed Counts II and III on its own motion even though counsel had failed to request severance prior to trial. The Court found no merit to defendant's argument that the counts should have been severed, relied on State v. Arthur Eldon Campbell, 189 Mont. 107, 615 P.2d 190 (1980) in finding that the allegation of prejudice was speculative and that none of the potential prejudices which might demand a severance occurred in this case. The three prejudices are: 1) a spillover effect in which a jury may consider a defendant charged with multiple counts such a bad man and therefore tend to accumulate evidence until it convicts him of some charge; 2) proof of guilt on one count which may be inadmissible in a separate trial may be used to convict the defendant on another count; 3) the defendant may wish to testify on his own behalf as to one count, but not on the others. In State v. Martin, 279 Mont. 185, 926 P.2d 1380 (1996), the Court held that the district court did not abuse its discretion in refusing to sever five counts of sex offenses committed against five child victims.
E.Continuance. Continuances are governed by 46-13-202(3) MCA and are always addressed to the discretion of the trial court. The general rule is that the Supreme Court will not reverse a trial court's ruling on a continuance unless there is a showing of a clear abuse of discretion on the part of the trial court. State v. Walker, 225 Mont. 415, 733 P.2d 352 (1987). In State v. French, 233 Mont. 364, 760 P.2d 86 (1988), the Court held in a prosecution for three counts of sexual intercourse without consent in which the victim was a young child. In this case, the defendant requested a continuance of the trial so that he could undergo a psychological exam and perhaps present psychological testimony at trial. The trial court denied his request. The Supreme Court held that the trial court did not abuse its discretion and that the defendant had not demonstrated due diligence inattempting to obtain this evidence. The record showed that the trial had already been rescheduled twice and that there had been a three-monthdelay between the first trial setting and the ultimate trial date. In State v. Timblin, 254 Mont.48, 834 P.2d 927 (1992), the Court held that the trial court had abused its discretion in not granting the Defendant a continuance so that he could subpoena two witnesses, which would have challenged the credibility of the victim, his 14-year old daughter. The two witnesses were also his children and had been subpoenaed by the State, but were not called to testify and were released from their subpoenas. The grandmother was apparently hiding the children from subpoena by the father. The Court found it important that these witnesses be available to testify because they would test the credibility of the victim. In State v. Scott, 257 Mont. 454, 850 P.2d 286 (1993), Defendant appealed the Court's denial of a continuance prior to the taping of the victim's testimony. Defendant claimed he had inadequate time to prepare his cross-examination, and cited a recent change in the victim's testimony about the occurrence, and lack of knowledge of certain psychiatric symptoms. The Court found that the trial court had not abused its discretion in denying the continuance, and stated that the Defendant had not demonstrated any prejudice by the refusal to continue.
III.Trial Issues.
A.Jury Selection. In State v. Gilpin, 232 Mont. 56, 756 P.2d 445 (1988), the defense made a motion for mistrial because during the voir dire, the prosecutor referred to statistical probabilities of sexual molestation and then asked if any of the potential jurors or people close to them had been victims of sexual abuse. The district court told the jurors that the statistics were not testimony or evidence. The Supreme Court ruled that the trial court's denial of the motion for mistrial was not erroneous, but did state that "we are not convinced that the prosecutor's statements were either necessary or appropriate" although they held that the trial court's instruction to the jury that the prosecutor's statements were not evidence cured any possible taint. In State v. Rhyne, 253 Mont. 513, 833 P.2d 1112 (1992), prosecutor asked during voir dire prospective jurors whether they would feel uncomfortable telling a group of people the details of their first sexual experience. In this case the victim's prior sexual assaults were excluded from evidence by the rape shield statute. The court found that this question was not improper and did not leave the impression that this case was the first sexual experience for the victim, but rather was intended to elicit responses about the victim's difficulty in recounting the incest incidents. Importantly, defendant did not request cautionary instruction or declaration of a mistrial.
B.Double Jeopardy. In State v. Hall, 224 Mont. 187, 728 P.2d 1339 (1986), the defendant was originally charged with felony sexual assault for acts committed against his stepdaughter. The defendant successfully persuadedthe district court that he should be charged with incest and the district court dismissed the original information and allowed the county attorney to refile charging incest. The acts were committed before the effective date of legislation adding "stepdaughter" to the incest statute, although at the time of the charge, the statute was applicable. The Montana Supreme Court held that the conviction under the incest statute was an "ex post facto" application of the amended statute and thus could not stand. The Court further held that the defendant could not be retried on the original charge of sexual assault because of double jeopardy prohibitions. The United States Supreme Court summarily reversed the Montana court on this issue 107 S. Ct. 1825 (1987) holding that the defendant could be retried unless there was insufficient evidence to support the conviction. In State v. Thiel, 236 Mont. 63, 768 P.2d 343 (1989), the defendant was charged with twenty-six counts of sexual intercourse without consent, all involving conduct with the same victims, his stepdaughters. This information was filed in 1986 and included acts taking place from 1981-1986. Counts 1-24 covered acts taking place from 1981-1983. Prior to the filing of this information, the defendant had previously been charged in 1983 with two counts of sexual intercourse without consent for acts against the same victims. In the course of plea negotiations during the 1983 case, defendant was evaluated by a psychologist, and admitted all of the acts that covered in counts 1-24 of the 1986 charge. Defendant received a 7 year suspended sentence for this case as opposed to the contemplated 2-3 year deferred largely as a result of the disclosure during the evaluation of the information of the other assaults. The Montana Supreme Court held that to convict the defendant of Counts 1-24 of the 1986 charge would subject him to double jeopardy since those charges had been considered in sentencing in the earlier case. The Court upheld the convictions on the other two counts. In State v. Waldrup, 264 Mont. 456, 872 P.2d 772 (1994), the Defendant sought dismissal of an Information charging the Defendant with four counts of Indecent Exposure, a felony on double jeopardy grounds arguing that the felony counts were part of the same transaction as other counts charged as misdemeanors to which he had entered guilty pleas. Defendant argued that 46-11-503 MCA barred prosecution since the prosecution knew or should have known of the other offenses at the time of the original charges. The Supreme Court reversed holding that 46-11-503 only applies to cases involving the same transaction and since these offenses were different transactions because there were different victims, no double jeopardy applied. In State v. McQuiston, 277 Mont. 397, 922 P.2d 519 (1996) the Court held that convictions for both sexual intercourse without consent and incest when the victim was the Defendant's daughter were not barred on double jeopardy grounds since each statute required the proof of separate facts. In State v. Gruendemann, 54 St. Rep. 275, 935 P.2d 1110 (1997), the Court held that Montana was notbarred from prosecuting the defendant for sexual intercourse without consent following his prosecution and conviction in Wyoming for endangering the welfare of children because Montana and Wyoming did not have concurrent jurisdiction since there was no evidence that Wyoming could have charged the defendant with sexual intercourse without consent. Further the Court found that venue and jurisdiction of the two offenses did not lie in a single court.
C.Character Evidence. The Montana Supreme Court has generally not permitted the defense to introduce evidence of the victim's bad character in sex cases. The rape shield statute generally prohibits any mention of prior sexual activity of a victim except for conduct with the defendant if the issue is consent. Montana Rules of Evidence 404 (a) and 608 govern character evidence. In State v. Courville, 236 Mont. 253, 769 P.2d 44 (1989), the Defendant sought to introduce evidence that the victim had been accused of stealing money and that she had a criminal record. Defendant argued that since the victim had made inconsistent statements in her accounts of the sexual assault, that the character evidence should be admitted. The court held that inconsistent statements in her account did not put her character in issue and open the door to the misconduct evidence. In State v. Oman, 218 Mont. 260, 707 P.2d 1117 (1985), the Court held that evidence offered by the defendant that child protective actions had been taken against the victim seeking custody of her daughter was irrelevant despite defendant's assertion that it would show a reason for her alleging an assault against him. In State v. Kowalski, 252 Mont. 166, 827 P.2d 1253 (1992), Defendant was charged with sexual assault of his daughters and originally pled guilty but was allowed to withdraw his plea and proceed to trial. At trial, one of the victims testified that she was afraid of her father. The defendant then attempted to impeach her claim of fear by introducing letter she sent to her father after he pled guilty. The court ruled that this testimony on cross-examination opened the door for the state to inquire into the circumstances surrounding the writing of letters, namely that the defendant was in another state awaiting sentencing upon his plea and posed no threat to the victim at that time. The Supreme Court ruled that this was proper, despite defendant's claim that he was forced to choose between effective cross-examination and exposing the jury to highly prejudicial statements made during pleading. In addition, the Court ruled that defendant could not introduce evidence that another victim had been hit by her father in order to show the victim's bias and motive to fabricate the sexual fondling in order to escape the physical abuse. The Court held that the evidence of physical abuse was abundant so that the victim's statement to the contrary was "of little consequence." Furthermore, the evidence was not properly admissible under Rule 608(b) because the defendant attempted to introduce the victim's statements through otherwitnesses rather than on cross-examination of the victim as provided by the rule. Finally, the Court applied the "relevancy test" as opposed to the old rule of "collateral matters" and concluded that the evidence of defendant's striking the victim failed to make it more or less probable that he had sexual contact with either victim. The evidence was thus properly excluded under Rule 401. In State v. Fitzgerald, 238 Mont. 261, 776 P.2d 1222 (1989), the court held that the district court properly excluded evidence that the victim of sexual intercourse without consent was a prostitute. The court relied in part on the rape shield statute (45-5-511(4) MCA), and its prior ruling, State v. Higley, 190 Mont. 412, 621 P.2d 1043 (1980) that the statute does not conflict with the confrontation clause. The Court did, however, then conduct a balancing test and conclude that the prejudicial effect of the proposed evidence outweighed and probative value thereby indicating that the rape shield statute may not be absolute. Another case construing Montana's rape-shield statute is, State v. Lamb, 198 Mont. 323, 646 P.2d 516 (1982) where the defendant wished to introduce evidence of the victim's previous sexual conduct on the theory that her accusations were "motivated by a psychological syndrome resulting from a previous sexual assault." The Montana court sustained the trial court's granting of a motion in limine based on the rape shield statute relying on the rationale in Higley and stating that the proposed evidence did not control the outcome of the case. The Court also considered the statute in State v. Anderson, 211 Mont. 272, 686 P.2d 193 (1984), where the defendant sought to introduce evidence of a prior sexual assault complaint brought by the same victim against a different defendant and the fact that those charges were ultimately dropped. The defendant argued that the fact that the charges were dropped was sufficient to prove that the prior charge was falsely made and thus appropriate evidence to attack the victim's credibility. The Montana court disagreed with the defense and held that such evidence was admissible only if the prior claim had been adjudicated as false and it was only offered to prove the narrow "issue of the complaining witness' veracity." The Court also set up a requirement that if the defense proposes to use such evidence, that pre-trial notice must be given, and a pre-trial in camera hearing conducted to determine the admissibility of the evidence. The Court reached similar conclusions in recent decisions which discuss the rape shield statute. In State v. Kao, 245 Mont. 263, 800 P.2d 714 (1990, State v. Van Pelt, 247 Mont 99, 805 P.2d 549 (1991), and State v. Rhyne, 253 Mont. 513, 833 P.2d 1112, (1992), the Court reaffirms its previous holding that information about previous allegations of sexual abuse by the victim are not admissible unless they are false. In Kao, the Court stated that rape shield provisions provide no exception to warrant admissions of evidence of prior sexual abuse. In Rhyne, the Defendant also sought to introduce information that the victim claimed to have had an abortion as a result of becoming pregnant by hisattacks, but that no evidence of such an abortion being performed could be found. Defendant sought to use the information to challenge the victim's credibility. The Court found that the Court properly denied use of this information as the prejudicial effect outweighed any possible probative value. In State v. Howell, 254 Mont. 438, 839 P.2d 87 (1992), cert. denied, S.Ct. (1993), the Defendant challenged the constitutionality of the rape shield statute because he was not permitted to introduce evidence that the child-victim had been previously sexually molested. The District Court did not abuse its discretion in excluding the evidence, since a defendant's right of confrontation is not without limitation. The evidence did not fit within any of the statutory exceptions and the Supreme Court refused to create a new exception. There is a discussion of Montana's rape shield statute in a recent issue of the Montana Law Review pointing out potential problems or possible challenges that might be made to our current statute. See McGuinnes, "Montana's Rape Shield Statute: No Time to Waste," 52 Mont. L. Rev. 125 (1991). In State v. Wing, State v. Lorenz, 51 St. Rep. 223 (1994), the defendants were tried together for a "gang rape" of the victim. The Court allowed testimony regarding prior consensual sexual activity with the victim, including some testimony concerning consensual sexual activity with multiple partners. The trial court limited additional testimony on the basis that it would not be probative, just prejudicial. The Supreme Court ruled that the trial court did not abuse its discretion. In State v. Stuit, 268 Mont. 176, 885 P.2d 1290 (1994), the State, relying on the rape shield statute, filed and prevailed in a motion in limine to prohibit any evidence that the victim had suffered prior sexual abuse. In opening, the prosecutor made a comment about the defendant taking away the victim's "innocence through sexual acts most consenting adults don't even engage in." No contemporaneous objection was made. The Court found that the prosecutor's comment did not open the door to testimony regarding prior abuse of the victim, even to show how the victim gained her knowledge of sex. In State v. Steffes, 269 Mont. 214, 887 P.2d 1196 (1994), the Court again stated that the rape shield statute does not violate a Defendant's Sixth Amendment right to confront witnesses unless the victim's allegations of prior sexual abuse have been proven to be false. As such, request for production of evidence regarding prior sexual conduct of the victim was properly denied, even when the evidence was sought to show the victim's prior knowledge of sexual matters. The Court stated that such claim was merely a guise to attempt to attack the credibility of the victim which is prohibited under the rape shield statute. In State ex rel. Mazurek v. Fourth Judicial District Court, 277 Mont. 349, 922 P.2d 474 (1996) (a writ of supervisory control in the case of State v. Johns) Defendant sought to introduce sexual misconduct evidence against each of the two victims. The Court ruled completely inadmissible a variety of acts engaged in by one of the victims both on the night of the rape and during herhigh school years because they did not meet any exception of the rape shield statute since they were not with the Defendant. The Court again rejected the Sixth Amendment claim and reiterated its oft quoted language that there is a compelling state interest in preventing rape trials from becoming trials of victims. The Court, however, appeared to change the rules for admissibility of "false allegation" evidence with respect to the other victim. The Court held that for false allegation evidence to be admitted, there must be a pre-trial in camera proceeding in which the district court judge determines if there is "sufficient evidence" to determine that the prior allegations were false, and then if yes, to make a determination whether the prejudicial effect of the admissibility of the evidence would outweigh its probative value.
D.Sexual preference of Defendant. In State v. Ford, 278 Mont. 353, 926 P.2d 245 (1996), evidence of the Defendant's sexual preference was properly admitted as relevant to a charge of sexual intercourse without consent upon a victim of the same sex. The Court cautioned that such evidence will not be relevant in most cases.
E.Exhibits. In cases of child sexual abuse, the general rules governing admission of exhibits apply. In State v. Rogers, 213 Mont. 301, 692 P.2d 2 (1984), after the defense attorney had used a transcript of videotaped interview with the victim in his cross-examination of the chief investigating officer and had the transcript admitted into evidence, the State moved to admit the videotape and it was played for the jury. The Court found that under MRE 1002, the videotape was the best evidence and properly admitted. In State v. Laird, 225 Mont. 306, 732 P.2d 417 (1987), the Court approved the admission of pornographic found in a search of Defendant's apartment. The victim testified at trial that the Defendant had shown her "dirty" magazines. The Defendant objected to their admission on foundation grounds arguing that the victim had not stated that the admitted magazines were the exact magazines shown to her. He also objected that the prejudicial effect of the magazines outweighed their possible probative value. The Court reiterated the standard rule that admission of evidence is at the discretion of the trial court, and they found no abuse of discretion in this case. The Court also found the magazines necessary to corroborate the testimony of the victim. In State v. Mayes, 251 Mont. 358, 825 P.2d 1196 (1992), the Court held that it was proper to admit photographs of the sexual abuse victims to show the jury who was involved in the crime.
F.Victim's Testimony.
1.Competency. Montana Rule of Evidence 601 is the evidentiaryprovision on the issue of competency. The issue that the Court must determine is the witness' "capacity of expression and appreciation of the duty to tell the truth." In State v. Campbell, 176 Mont. 525, 322 P.2d 657 (1978), the Court held that whether or not a child is competent to be a witness is a determination left largely to the discretion of the trial court. In Campbell, the witness was four (4) years old, and the Court held that four years old was not too young to automatically be disqualified as a witness. In State v. Rogers, 213 Mont. 301, 692 P.2d 2 (1984), the Montana Supreme Court held that the trial court's determination that the four-year-old victim of a sexual assault was competent was well within its discretion. The case further held that the witness was properly examined as to competency. This case contains the dialogue between the prosecutor and the witness as to competency. In State v. Phelps, 215 Mont 217, 696 P.2d 447 (1985), the Court held that the trial court's determination that a five-year old witness was competent to testify was not error. In this case, the witness demonstrated that he could express himself concerning the matter and that he was capable of understanding the duty of a witness to tell the truth. Defendant's reliance on cases concerning "coached" witnesses was misplaced where those cases concerned children who had been asked to repeat stories their mothers told them to tell the judge, or cases where the witness was confused concerning the concepts of truth and falsehood. In State v. D.B.S., 216 Mont. 234, 700 P.2d 630 (1985), the Court held that a four-year old witness was properly qualified to testify and repeated the general rule that the determination of competency of a witness is left to the sound discretion of the trial court. In State v. A.D.M., 216 Mont. 419, 701 P.2d 999 (1985) the Court held that a five-year old victim who had undergone counseling did not have to have her testimony corroborated, and the counseling did not affect her competency to testify. The Court stated that the defense arguments went to the weight or credibility of the child's testimony and not its admissibility and concluded that the child was competent to testify. In State v. Jerry Eiler, 234 Mont. 38, 762 P.2d 210 (1988), the Court held that a witness who was four years old at the time of the incident and eight at the time of the trial understood her duty to tell the truth and had the ability to clearly communicate her account of the assault. In State v. Newman, 242 Mont. 315, 790 P.2d 971 (1990), the Court upheld the trial court's determination that the seven-year-old victim was competent to testify. In this case, the trial court had extensively questioned the child regarding her understanding of the obligation to testify truthfully. The Newman court reiterated the holding in Eiler, and further stated that a child'sinability to remember her address or specific dates of the assaults did not render her incapable of testifying as to the incidence of sexual abuse by the defendant. Any inconsistencies within her testimony or possible fabrication would affect the child's credibility not her competence. In State v. Walters, 247 Mont. 84, 806 P.2d 497 (1991), the Court held that the trial court did not abuse its discretion in determining that a four-year old child was a competent witness. The case further states that the trial court had "methodically and carefully determined" in a pre-trial competency hearing that the child was capable of expressing herself and that she appreciated the duty to tell the truth. During the pre-trial hearing, the judge examined both the child and the child's therapist. The defense contended that the trial judge should also have examined the videotaped deposition because it contained inconsistencies. The opinion stated that inconsistencies relate to an issue of credibility which is for the jury, and not competency. In State v. Kelly, 265 Mont. 298, 876 P.2d 641 (1994), the Montana Supreme Court held that it was error to conduct the competency hearing in front of the jury, although in the context of this case, found the error harmless.
2.Manner of testifying.
a.The victim may testify by means of videotape. 46-15-401 MCA sets out the procedure for use of videotape testimony in sexual intercourse without consent, sexual assault, deviate sexual conduct and incest cases. The procedure requires the request of the victim and the agreement of the prosecutor. The videotaping is done with the judge, prosecutor, defendant, and defense counsel, and court personnel present and such others as the court may permit. Montana Rules of Evidence apply. The videotape can then be used in evidence at the trial without the necessity of calling the victim. This statute did not cover the admission of the videotaped statement of the victim in State v. Rogers, 213 Mont. 302, 692 P.2d 2 (1984) since the videotaped statement was not used in lieu of the victim's testimony, but only after the victim had already testified. In State v. Scott, 257 Mont. 454, 850 P.2d 286, (1993), the Defendant challenged the filming techniques used by the camera operator and argued that the techniques used made the videotape too prejudicial to use at the trial. The Defendant claimed that the filming placed undue influence on the nature of her testimony by "zooming in" when she cried. The Court held that a decision on admissibility is within the sounddiscretion of the trial court. Further, the Court stated that the filming technique did not inform the jury of anything that they did not know (that she was crying), and further, the Court reviewed the tape and stated that they saw no prejudicial filming techniques. The Court declined to adopt for Montana uniform procedures applicable to the videotaping of testimony such as those found in State v. Sheppard, (N.J. 1984) 484 A.2d 1330.
b.The victim may testify while sitting on the prosecutor's lap. State v. Rogers, 213 Mont. 302, 692 P.2d 2 (1984).
c.In State v. Davis, 253 Mont. 50, 830 P.2d 1309 (1992), the Supreme Court held that placement of a screen in front of the witness box so that a sexual assault victim and another child witness could not be seen by the defendant does not violate the defendant's right to confront witnesses so long as the trial court makes a specific finding of necessity. The finding of necessity requires that the trial court hear evidence and determine whether the procedure is necessary to protect the welfare of the child witness, that the child witness would be traumatized by the presence of the defendant, and that the emotional distress suffered by the child witness in the presence of the defendant is more than mere nervousness or excitement or some reluctance to testify. The Court based its holding on the United States Supreme Court holdings in Coy v. Iowa 487 U.S. 1012 (1988) and Maryland v. Craig 497 U.S. 836 (1990) which ruled on the issue of confrontation clause and its impact on steps taken to protect child witnesses. Of note in this case is the special concurrence written by Justice Treiweiller who also wrote the majority opinion suggesting that if defense counsel had challenged the procedure under the Montana Constitution as opposed to the U. S. Constitution the decision would have been different. In State v. Scott, 257 Mont. 454, 850 P.2d 286, (1993), Defendant challenged the state's videotaping statute on the grounds that it violated the tenants of Coy and Craig. The Court found, however, that Montana's statute provides adequate protection because the Defendant is permitted to be present at the taping, thus preserving his confrontation rights. In this case, he chose not to be present. The Court found that the essential elements of the confrontation clause---physical presence, oath, cross-examination, and observation of demeanor by the trier of fact(although by video recording)--are present in the Montana procedure.
G.Limitation of Cross Examination of Lay Witnesses.
In State v. McNatt, 257 Mont. 468, 849 P.2d 1050, (1993) Defendant claimed that his right to confront and cross-examine witnesses had been unfairly limited. In this case, the step-sister of the victim was being cross-examined on the issue of what the victim had told her about the incident. Defense counsel asked her on four separate occasions about her statements during a pre-trial interview differing from her trial testimony. The witness got upset and began to cry. After the fourth version of the same question, the State objected as "asked and answered". The Court did not rule directly on that objection, but noted that this was the point that the witness breaks down all the time. At this point, a juror interrupted and stated that he could not sit through anymore questioning of this little girl and that if the Court wished to hold him in contempt, so be it. The Court then agreed that the little girl had been through enough and ordered her off the stand. The defense moved for a mistrial based on juror misconduct or in the alternative, removal of the juror and seating of an alternate juror. Both motions were denied. The Supreme Court found the actions of the Court within the discretion of the trial judge, and further stated that Defendant had not demonstrated that the juror's outburst had resulted in prejudice to the Defendant. They further held that the comment did not indicate any hostility to the Defendant nor that the juror had formed an opinion as to guilt. Defendant further claimed that his cross examination right had been cut short by the juror outburst and the subsequent action by the trial judge. The Court found that action of the Court within the Court's discretion basing its decision on Rule 611 (a) M.R.Evid. The Court found that the repeated questioning was designed to get at the witness' credibility, and that the defense was able to get that point across by calling their own witness and therefore the Court did not abuse its discretion. In St. v. Passama,261 Mont. 338, 863 P. 2d 378 (1993), the Court upheld the trial court's limitations placed on the cross examination of the victim's brother. The defense was not allowed to examine him as to the details of his own charges of sexual abuse, although they were allowed to ask if he had been charged and if he made an agreement with the prosecutor for leniency in exchange for his testimony at the trial. In State v. Wing and State v. Lorenz, 264 Mont. 215, 870 P.2d 1368 (1994), the Court found that it was harmless error for the trial judge to have limited defense counsel by prohibiting questions starting with "Isn't it true that...." during cross-examination.
H.Identification Evidence. In State v. Jack Hall, 161
Mont. 244, 797 P.183 (1990) the Court ruled that the Defendant was notentitled to the "Telfaire" on eye witness identification. The Telfaire instruction is a lengthy instruction on eye-witness identification from a 1972 federal case. The Court held it inapplicable in this case because the substance of the instruction was adequately covered in other instructions, and in this case, there were two eye witnesses as opposed to one.
I.Expert Witnesses.
1.Testimony regarding the credibility of the child witness. In 1986, the Montana Supreme Court began deciding a series of child sexual assault cases which allowed prosecutors to make fairly strong use of expert testimony, and under certain cases, permitted the expert to make some comment on the credibility of the victim if the victim testifies. In In Re. J.W.K. 223 Mont. 1, 724 P.2d 164 (1986), the Court held that testimony concerning the reliability of a particular class of witnesses, such as juvenile victims of sexual abuse, is admissible. The testimony came in when defendant disputed the victim's credibility. In this case, the Court stated that a witness may not testify concerning the credibility and reliability of a particular witness. Shortly thereafter, in State v. Geyman, 224 Mont. 194, 729 P.2d 475 (1986), the Court held that an expert's comment on the credibility of the child sexual assault victim is admissible for the purpose of helping the jury to assess the victim's credibility. The Court further held that the expert testimony did not impinge upon the jury's obligation to decide the victim's credibility, but merely enlightened the jurors on the subject with which many or most jurors have no common experience they can use to judge the victim's credibility. In this case, there was a delay in reporting the sexual incidents, and the comment on the child's credibility arose in response to defense cross-examination. In State v. Laird, 225 Mont. 306, 732 P.2d 417 (1987), the Court held that an expert may properly testify to his findings and such testimony does not constitute a comment on the weight and credibility of the evidence given by the victim. Here, the doctor (a treating physician) testified that he felt 99.99 percent sure that the child had been sexually assaulted. In State v. French, 233 Mont. 364, 760 P.2d 86 (1988) the Court held that a school counselor's testimony in response to questions put to her by the prosecutor that she believed that the victim was telling the truth was found to be proper. The Court relied on the Geyman decision and again stated that such testimony may assist the jurors in assessing the child's credibility since most jurors will be unfamiliar with the responses of children who have been sexually assaulted and may find their reactions peculiar. However, with the 1988 decision ofState v. J. C. E., 235 Mont. 264, 767 P.2d 309 (1988), the Court began a process of severely limiting the nature of expert testimony in these types of cases. In State v. J.C.E., 235 Mont. 264, 767 P.2d 309 (1988), the Court held that testimony by an expert evaluating the credibility of a child witness is inadmissible except where the witness is a child victim of a sexual assault and the child testifies. In this case the child did not testify and the State attempted to introduce the identity of the offender through expert testimony. The Court held that was error. In State v. Hall, 244 Mont. 161, 797 P.2d 183 (1990) the Court held that the testimony of the expert witness that the victim's account of the assault was "a consistent coherent story" and that she "could pick out that individual that offended her" and her opinion that children could be accurate eyewitnesses was proper since the victim in that case had testified. The Court further stated that in deciding the admissibility of expert testimony in child molestation cases that the district courts should be guided by the Montana Rules of Evidence. The Court said that expert testimony is admissible if it will help the jury to understand the evidence, or to determine a fact in issue. Here, the Court said that the fact in issue was the identity of the offender since no one disputed the fact that the child had been assaulted by someone. In State v. Donnelly, 244 Mont. 371, 798 P.2d 89 (1990), the Court again approved expert testimony which stated that the victim had been a subjected to sexual abuse, and that she fit the profile of a sexually abused child. The Court relied on Geyman and held that in this case the testimony was consistent with the holding in that case and stated that this issue is "well settled" in Montana case law. Despite this 1990 decision, in State v. Harris, 247 Mont. 405, 808 P.2d 453 (1991) a further limitation on the ability of expert witnesses to testify on a victim's credibility was adopted. In this case, the Court held that not only did the child have to testify, but that the child's credibility needed to be brought into question by the Defendant before it was proper for the expert to testify. In this case, the Court reasoned that the defendant had not denigrated the child's credibility during the opening statement and had not cross examined the child after he testified. Although the defendant had cross-examined the mother and had her admit that the child had first denied the allegation, the Court through Justice Hunt stated that the State had brought that information out first. In State v. McLain, 249 Mont. 242, 815 P.2d 147 (1991), the Court found that the testimony of the expert on the credibility was proper because the child did testify, her credibility was attacked by the defense, and there were inconsistencies between her testimony and earlier statements. The expert was allowed to explain the reasons why such inconsistenciesoften occur in the context of child sexual abuse. The Court found that his testimony was in accord with the rules set down in Harris. In State v. Scheffelman, 250 Mont. 478, 821 P.2d 1293 (1991), the Court put further restrictions on the use of expert testimony on this issue. The Court held that in order for a witness to be qualified as an expert witness in this area, the witness would have to meet three qualifications: (1) extensive firsthand experience with sexually abused and non-sexually abused children; (2) thorough and up-to-date knowledge of the professional literature on child sexual abuse; and (3) objectivity and neutrality about individual cases, as are required of other experts. The Court held that the State had failed to qualify the expert and therefore her opinion on credibility was improper. The dissent strongly objected to the majority's characterization that the witness was not qualified as an expert, and it is hard to see how a person would be better qualified. In State v. Hensley, 250 Mont. 478, 821 P.2d 1029 (1991), the question of qualification of the witness as an expert was not challenged. What was challenged was the opinion that the victim was telling the truth. The Court held that since at the time the victim testified she was 17 years old, it was error to admit the testimony on her truthfulness even though the sexual assaults she testified to happened 10 years previously and her credibility was seriously challenged by the defense who presented testimony from her mother, brothers, and defendant father that she was lying. In State v. Scott, 257 Mont. 454, 850 P.2d 286, (1993) Defendant challenged the testimony of the child's therapist regarding her psychiatric symptoms claiming that they improperly bolstered the child's credibility. The Court rejected the claim relying on the fact that the Defendant had called the child's therapist to testify in his case relying on a defense that her symptoms were caused by others. On cross-examination by the State, the therapist testified that the symptoms were related to the Defendant. The Court held that the testimony was proper, particularly in light of the fact that the Defendant had first broached the issue. In State v. Alexander, 265 Mont. 192, 875 P.2d 345 (1994), the Court approved testimony from an expert that the child's symptoms constituted post-traumatic stress disorder, and the expert's testimony that sexual abuse could be a triggering event, and the expert knew of no other possible event in the child's life to account for the diagnosis. In State v. Henderson, 265 Mont. 454, 877 P.2d 1013 (1994), the Court found the expert's opinion on credibility of the child victim improper because there was improper foundation for the giving of the expert's opinion. In State v. Steffes, 269 Mont. 214, 887 P.2d 1196 (1994), the Defendant proposed to present the testimony of Dr. Sandra Whaley-Olson totestify as to the reliability and credibility of the statements given by the victims to the police. Although she was permitted to offer expert testimony on general procedures used to conduct interviews with sexually abused children, the State objected to any specific testimony about the case in question on grounds that such testimony was testimony on the credibility of the victim and as such, the expert did not meet the qualification standards established by Scheffelman. The Supreme Court agreed finding that she did not have sufficient experience with sexually abused children.
2.Necessity of objecting to the testimony in order to preserve appeal rights. In State v. Eiler, 234 Mont. 38, 762 P.2d 210 (1988) the Court held that it would not review on appeal a question of the admissibility of expert testimony if it had not been objected to at the trial. This holding was reiterated in State v. Donnelly, 244 Mont. 371, 798 P.2d 89 (1990), when defendant argued during his appeal that the expert testimony concerning the characteristics of sex offenders should not have been admitted. Since defendant had not objected to the testimony at trial, the Court refused to consider the issue. In State v. Henderson I , 265 Mont. 454, 877 P.2d 1013 (1994), the Court found that although the objection was "somewhat ambiguous", the defendant had preserved his objection to the expert's opinion concerning the sexual abuse of the victim. In this case, the issue was whether there was sufficient foundation for the opinion.
3.The Frye test does not govern the admissibility of expert testimony in the area of child sexual assault. In State v. Walters, 247 Mont. 84 P.2d 497 (1991), the Court ruled that the Frye test was not applicable to the admissibility of testimony concerning the child victim meeting the profile of a sexually abuse child. The Court held that the "general acceptance" rule of the Frye test was not in conformity with the spirit of the new rules of evidence which rely instead on the position that the evidence should be admitted if it will assist the trier of fact to understand the evidence or to determine a fact in issue. The Court also held that testimony concerning sexual abuse of children is not a "novel" area of scientific expertise.
4.The child sexual abuse expert must be properly qualified. In State v. Scheffelman, 250 Mont. 334, 820 P.2d 1293 (1991), the Court set out the requirements for properly qualifying an expert in the area of child sexual abuse. Those qualifications are: (1) extensive firsthand experience with sexually abused and non-sexually abused children; (2) thorough and up-to-date knowledge of the professional literatureon child sexual abuse; and (3) objectivity and neutrality about individual cases, as are required of other experts. In State v. Henderson I , 265 Mont. 454, 877 P.2d 1013 (1994), the Court found that the expert called by the State in that case was unqualified to offer her opinion. Similarly in State v. Steffes, 269 Mont. 214, 887 P.2d 1196 (1994), a defense expert was found to be unqualified to offer her opinion.
4.In State v. Ray, 267 Mont. 128, 882 P.2d 1013 (1994), the State was chastised for failing to identify pre-trial two witnesses called at trial as experts. In this case, the individuals had been listed on the information as potential witnesses, but had not been identified as experts, and no summary of expected testimony had been provided. This failure did not cause the reversal in the case, but appears to be a warning to prosecutors for future conduct.
5.DNA evidence. In State v. Weeks, 270 Mont. 63, 891 P.2d 477 (1995) the Court again conducted a fairly detailed analysis of the admissibility question of DNA evidence and determined that the evidence and the statistical interpretation was admissible under Dow Chemical standard. There is also a discussion of chain of custody of the blood evidence in this case.
J.Use of Hearsay statements by Experts. In State v. Anderson, 211 Mont. 272, 686 P.2d 193 (1984) the defense objected on hearsay grounds to the testimony of the victim's social worker who related to the Court what the victim had told her about the sexual assaults. There was some question whether the testimony was consistent or inconsistent with the victim's testimony. The Montana Court held that it really didn't matter because both prior consistent and prior inconsistent statements are admissible in a trial and defined under the rules of evidence as not hearsay. The Court issued similar rulings in State v. Hibbs, 239 Mont. 308, 780 P.2d 182 (1989) and State v. Newman, 242 Mont. 315, 790 P.2d 971 (1990) where the Court stated that prior consistent statements are admissible if the credibility of the declarant (in these cases the victims) has been attacked by the defense. The Montana Court discussed at length the hearsay exceptions and their applicability in child sexual assault cases in State v. J.C.E., 235 Mont. 264, 767 P.2d 309 (1988). In this incest case, the victim was found incompetent to testify, but the State proposed to offer testimony at trial by the treating physician, the DFS worker and a counselor concerning her out of court statements in which the victim identified the offender. The State urged the Court to admit the testimony pursuant to the exception for purposes of medical diagnosis and also the residual hearsay exception. The MontanaSupreme Court refused to apply those exceptions in this case, and issued lengthy guidelines for their applications in future cases. The J.C.E. case was further buttressed in the case of State v. Harris, 247 Mont. 405, 808 P.2d 453 (1991). In this case, a child therapist testified that the non testifying victim had told her that the defendant had assaulted her. She was not a witness due to her incompetency, but her older brother testified to his observations of the defendant's treatment of his little sister. The Court found the hearsay statements improperly admitted because they were "merely cumulative" serving to bolster the testimony of the boy. The Court went on to discuss the J.C.E. guidelines and stated that the relationship between a child's therapist has a negative impact on the trustworthiness of the hearsay statement. They concluded that "only in an extraordinary case will hearsay testimony by a therapist concerning the identity of the perpetrator or the nature of the abuse possess sufficient circumstantial guarantees of trustworthiness to be admissible into evidence." They went onto hold the "hearsay statements of a child victim of sexual abuse who does not testify at trial will, in general, not be admissible under Rule 804 (b) (5) M.R.Evid., through the child's therapist. Nor will the hearsay statement of a child victim of sexual abuse who does testify at trial generally be admissible under Rule 803 (24) M.R.Evid., through the child's therapist." In State v. Scheffelman, 250 Mont. 334, 820 P.2d. 1293, the Court dealt with the definition of a "prior consistent statement". In this case, the defendant's step-daughter accused him of sexual assault. She told a pastor that defendant also had sexual intercourse with her, but she later admitted that part was a lie. At trial, the State introduced the victim's prior consistent out-of-court statements to rebut defense counsel's charge of fabrication and improper influence by the prosecutor. Adopting 9th Circuit reasoning, the Court held that prior consistent statements, introduced under Rule 801(d)(1)(B) M.R.Evid. must have been made prior to time any motive to fabricate has arisen, where alleged motive to fabricate was in fact the impetus for reporting the abuse (fear that defendant would return to family home), statements were properly admitted. In State v. Mayes, 251 Mont. 358, 825 P.2d 1196 (1992), the Court held that the district court properly admitted hearsay statements of non-testifying child sexual abuse victims who were declared to be incompetent. The admission of the statements was approved even though the social workers who testified as to the statements were not involved in long term therapy with the children, but were performing an interview as part of a criminal investigation one day after the alleged assault took place. The Court applied a lengthy analysis of State v. Harris and State v. J.C.E. distinguishing Harris and determined the trustworthiness of the statements. In State v. Alexander, 265 Mont. 192, 875 P.2 345 (1994), the Court found that asking an investigator what the victim had told him with regard to the location of the abuse was inadmissible hearsay, but was harmless in thiscase since the victim testified at trial to the same facts. In State v. Henderson I , 265 Mont. 454, 877 P.2d 1013 (1994), the Court held without any exception that Rule 803(24) M.R.E., the so-called "residual exception" to the hearsay rule cannot be used to admit through the therapist hearsay statements as to the identity of the offender.
K.General use of Hearsay statement. In State v. Powers, 233 Mont. 54, 758 P.2d 761 (1988), the Court considered the admissibility of two separate hearsay statements made by a co-Defendant who did not testify at trial because she had fled the jurisdiction. The first statement was offered by the State and consisted of testimony from the investigating officer concerning the presence of a knife used to threaten the victim to have sex. The Court stated that the admission made by the co-defendant was admissible because it was a statement against interest. The other statement was offered by the defense and consisted of an alleged statement by the same co-defendant in which she was supposed to have said that the Defendant did not participate in the criminal activities for which he was charged. The Court found this statement inadmissible because there were insufficient corroborating circumstances which clearly indicated the trustworthiness of the statement. In State v. Alexander, 265 Mont. 192, 875 P.2d 345 (1994), the Court found that the officers repetition of the victim's statement as to where the offense took place hearsay, and therefore inadmissible, but harmless because the victim testified to the same facts. In State v. Riley, 270 Mont. 436, 893 P.2d 310 (1995), when a social worker testified to the victim's statements to him, the court reached a similar conclusion, finding error in the admission of the testimony but finding the error harmless since the victim testified to the same facts and was cross examined on the particular issue of her interview with the social worker.
L.Other Acts. In child sexual assault cases, there has traditionally been little trouble in gaining approval for introducing evidence of other sexual acts against the same victim in a prosecution for a specific sexual offense. The Court has also been generally sympathetic to evidence of other sexual conduct against other similar victims as well. It is, however, necessary to be aware of other acts cases for other kinds of crimes and ensure that those cases are followed as well. There have been a series of cases in which the Court has been a stickler for following the procedural requirements. Further, the Court has condemned the practice of using a "shotgun" listing of the purposes for which such evidence is proposed. See e.g. State v. Sadowski, 247 Mont. 63, 805 P.2d 537 (1991) and State v. Wells, 252 Mont. 121, 827 P.2d 801 (1992), both non sexual assault cases. However, in a child sexual assault case, State v. Croteau, 248 Mont.403, 812 P.2d 1251 (1991), the Court found that the State had failed to comply with the notice provisions ofthe Just rule. In this case, the prosecutor gave to defense counsel a statement on the day of trial that had been taken three months earlier and used that evidence as part of other acts in the trial. The State did offer to the Defendant the option of a continuance to prepare to meet this evidence. The Court found that the State had not met the requirements of Just by the late notice, and further that the notice that had been provided to the Defendant had not been specific enough in that it had merely recited a "shotgun" list of the various reasons under 404 (b) for admission of the evidence. The Court held that future Just notices must specifically state the relevant reason for admission of each other act. The Court also said that a Defendant does not have to give up his right to a speedy trial to prepare to meet such evidence and that is what he would have had to do if he had asked for a continuance. The seminal case in this area is State v. Just, 184 Mont. 262, 602 P.2d 957 (1979). That case set out the rules for admission of uncharged misconduct evidence and stated that the trial court should apply a four-part test to determine the admissibility of other acts evidence. The four elements are: similarity of crimes or acts; nearness in time; tendency to establish a common scheme, plan or system; and a finding that the probative value is not substantially outweighed by the prejudice to the defendant. These four elements have just been modified in the June 26, 1991 decision of State v. Allen Ray "Speedy" Matt, 249 Mont. 136, 813 P.2d 52 (1991). The new four-part test is that: 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. The Matt opinion holds that the modified Just rule will permit the use of other acts evidence for any of the purposes included in Rule 404 (b) M.R.Evid. subject to the limitations of Rule 403 M.R.Evid. The following cases have approved the introduction of other acts evidence in sexual assault cases. In general the Court will approve such evidence if it is "sufficiently similar" holding that the evidence does not have to be "identical" See eg. State v. Medina, 245 Mont. 25, 798 P.2d 1032 (1990) in which evidence of a 1984 incident against the same victim for which the Defendant plead guilty in Colorado was admitted in the Montana prosecution for acts which occurred between 1987-1989. The Court found that in each of the cases that there was "inappropriate sexual contact with his daughter". The Court also found the 3-5 year time period near enough in time. The Court made similar rulings inState v. Gilpin, 232 Mont. 56, 756 P.2d 445 (1988), State v. Eiler, 234 Mont. 38, 762 P.2d 210 (1988), State v. Tecca, 220 Mont. 168, 714 P.2d 136 (1986) and State v. T.W., 220 Mont 280, 715 P.2d 428 (1986). In Tecca, the victims were different but the Court found them sufficiently similar since they each showed Defendant's sexual interest in young girls. In this case there was a nine-year period between some of the incidents and the incident that was tried. The Court found that since there was a continuing pattern of similar conduct, the acts were not too remote. In T.W., the defendant was charged with incest for acts between himself and his 15-year old developmentally disabled sister. The trial court had refused to admit an earlier act that had occurred four years before the act in question. The Supreme Court reversed and held that four years was not too remote, particularly in this case since the youth had not had access to the sister during the intervening time. The Court also discusses at length the remoteness issue, states that a failure of the evidence to meet one element of the Just test is not sufficient to refuse the evidence, and that all the elements must be considered together. In Gilpin, two victims were involved, and the Court found that the acts were sufficiently similar and tended to establish a common plan, scheme or design in that they showed his "desire to gratify his sexual desires by fondling the girls". In State v. Chancy Long, 223 Mont. 502, 726 P.2d 1364 (1986), the other acts involved other victims. In this case, the Court spoke about the "subtle nature of child abuse" and held that the acts were sufficiently similar to demonstrate a common scheme, plan or design in Defendant's conduct. In this case, two of the victims stated that the Defendant had pulled down their pants and rubbed their vaginas, the other had said that he had "rubbed her bottom". In State v. McKnight, 250 Mont. 457, 820 P.2d 1279 (1991), the Court approved the use of other acts evidence in a prosecution for Sexual Intercourse Without Consent against the defendant for acts against his grand-niece. Defendant was originally charged with other counts of sexual assault and sexual intercourse without consent for acts against friends of the victim for acts which took place three years earlier. These charges were dismissed prior to trial for statute of limitations problems. The Court approved, however, of the use of evidence about these other acts at the trial. The Court found that even though some of the acts involved intercourse and others only assaults, they were sufficiently similar in that all were perpetrated against 8 or 9 year old girls, all occurred on the defendant's property, and each girl was threatened in essentially the same way to satisfy the Just-Matt requirements. In State v. Kordonowy, 251 Mont. 44, 823 P.2d 854 (1991), Defendant was convicted of raping woman who had diminished sight and hearing. At trial, state introduced evidence defendant had since raped another woman under strikingly similar circumstances. Defendant argued on appeal that such other crimes evidence should not have been admitted but the SupremeCourt held that identity is one of the purposes for admitting other crimes evidence. Even considering the prejudicial nature of the evidence, the Court held the evidence was admissible since the acts of this offense were shown to be the "handiwork" of the defendant. In State v. Davis, 253 Mont. 50, 830 P.2d 1309 (1992), evidence of an unproven sexual assault charge was admissible in a trial involving solicitation of tampering with physical evidence, where the tampering involved the defendant's request that a friend destroy a package containing photographs of defendant engaging in sexual activity with the victim in the sexual assault charge. The evidence was admissible as part of the corpus delicti of the evidence tampering charge. In State v. Crist, 253 Mont. 442, 833 P.2d 1052 (1992), sexual assaults upon the child victims which occurred four years before the instant offense were not too remote to satisfy the Just requirements. However, evidence that the defendant had shown one of the victims a pornographic magazine, teased her about getting drunk and "taking advantage of her," and attempted to dress her in a nightgown amounted to innuendo that was too broad to meet the standard of similarity under Just. In State v. Keys, 258 Mont. 311, 852 P.2d 621 (1993), the defendant was charged with sexual intercourse without consent. The Court admitted evidence of a prior incident of indecent exposure followed by an apology to the other victim. The Court said: "While there is no rigid rule for determining when conduct is sufficiently similar, the determination of similarity depends upon whether that conduct has some relevance to prove an issue in dispute." The Court held that motive or intent of defendant was not at issue; only the consent of the victim was. Defendant's criminal intent is irrelevant if the victim consented. In State v. Brooks, 260 Mont. 79, 857 P.2d 734 (1993), a prior sexual assault on a teenage boy victim was found to be sufficiently similar to the charged sexual assault on 10-year old boy. The Court held that the prior acts need not be identical. In both instances, defendant had taken a young boy swimming, vulnerably dressed, and in a position of trust. The age difference between the victims was not sufficient, without more explanation, to warrant suppression of such a similar prior act. In State v. Little, 260 Mont. 460, 861 P.2d 154 (1993), the Court found the two other acts sufficiently similar to the charges to admit the evidence at trial under Just/Matt. The other act evidence was attempted sexual intercourse and an act of sexual intercourse with one of the victims while the family was on a vacation at Flathead Lake. Defendant argued that the notice was untimely since the formal notice of other acts was delivered one-week before trial. The Court found that the notice was not untimely since unlike the case in Croteau, the defendant had been aware of the incident from the time of the victim's first statements given one year before the trial. In State v. Romero, 261 Mont. 221, 861 P.2d 929 (1993), charged and uncharged acts of sexual assaults on young girls were sufficiently similar despite age difference in victims. Victim in chargedsexual assault was 5 years old, while victim in uncharged sexual assault was 13. Both assaults occurred in the evening when the victims were asleep and after defendant had been drinking. In State v. Garn, 264 Mont. 296, 871 P.2d 878 (1994), the State introduced evidence of defendant's prior association with two minor girls when he persuaded them to model for him and took pictures of them in their underwear. Trial court granted a new trial after finding that these prior acts had been inadmissible for lack of similarity to charged act of sexual assault. State had argued that the modeling was part of the same scheme or plan, but the Supreme Court affirmed holding that the prior acts were not sufficiently similar because they did not involve any sexual activity. In State v. Ray, 267 Mont. 128, 882 P.2d 1013 (1994), although the court declined to set arbitrary time limits for admitting other acts evidence, in this case the court found the other acts evidence too remote because they occurred 16-18 years previously without any intervening acts. The Court also found that the probative value of the evidence did not outweigh the danger of unfair prejudice. In State v. Steffes, 269 Mont. 214, 887 P.2d 1196 (1994), the court did not prohibit the election of more than one applicable purpose for the admission of other crimes evidence. The Court also held that the district court does not need to issue findings or conduct a full evidentiary hearing to determine admissibility of other crimes evidence. In State v. McQuiston, 277 Mont. 397, 922 P.2d 519 (1996), defendant complained that improper other acts evidence was admitted in the trial, and that the Court improperly instructed the jury on the other acts evidence. The Supreme Court rejected this claim stating that Defendant had opened the door on cross examination of the victim, and that the State was then permitted to present the evidence on redirect examination. Similarly the State was permitted to use the other acts evidence as impeachment on cross examination of the defendant when he raised the issue of his financial condition. With respect to the instruction issue, the Court held that it was not necessary to repeat the admonition each time the evidence was discussed. In State v. Henderson (II), 278 Mont. 376, 925 P.2d 475 (1996), the defendant was charged with sexual intercourse without consent of his stepdaughter. The other acts evidence consisted of having her two young brothers lie on top of her and have intercourse with her or simulate intercourse with her. The State argued that the evidence was admissible either as common scheme or identity evidence. The defendant argued that the evidence was too dissimilar, was not relevant to a permissible purpose and that the unfair prejudice outweighed the probative value. The Court stated: "We have consistently held that the [other] acts do not have to be identical to the charged conduct,only sufficiently similar", citing Weldy, and Tecca. In this case the court found the acts sufficiently similar because the "involved the same victim, and were part of the same series of occurrences. Henderson was responsible for all of the acts, and they were performedsolely for his sexual gratification. All of the acts involved Henderson's sexual manipulation and abuse of the children." The Court also found the evidence relevant to a permissible purpose, that of identity because the defendant when he testified at trial asserted his innocence and alleged that another man committed the acts of sexual abuse. "The State, therefore, was properly allowed to introduce the evidence of "other acts" to prove that Henderson, was, in fact, the perpetrator of the charged offense." The evidence was also common scheme evidence because it showed that Henderson had a common scheme to sexually abuse and manipulate his children for his own sexual gratification. Finally, with respect to the balancing of prejudicial effect against probative value, the court stated: "We have often recognized that probative evidence will frequently and inevitably be prejudicial to a party....In this case, the evidence of 'other acts' was prejudicial, 'but because it satisfies the other requirements of the modified Just rule, such prejudice alone is not a sufficient reason to refuse admission.' " In State v. Martin, 279 Mont. 185, 926 P.2d 1380 (1996), the Court held that the defendant was not prejudiced by the joinder of five separate sex offenses because the evidence of all offenses would have been admissible as other acts evidence in separate trials. The Court discussed the similarity prong of the other acts analysis and said: "While we recognize that there are some differences between the incidents involving K.T. and C.H. when compared with each other and with the incidents involving M.G. and K.G., those differences do not negate the similarity of the incidents....Thus, the nature of the acts, the location of the incidents and the age of the victims were largely identical, and where not identical, were substantially similar."
M.Sufficiency of Evidence. The standard of review applied in ruling on claims that there has been insufficient evidence submitted to sustain the verdict of guilty is: "Whether the evidence, viewed in the light most favorable to the prosecution, is sufficient to permit any rational trier of fact to find that the elements of the offense were established beyond a reasonable doubt." Montana allows convictions to stand based on the uncorroborated testimony of the victim. See eg. State v. Howie, 228 Mont. 497, 744 P.2d 156 (1987); State v. Maxwell, 198 Mont 498, 647 P.2d 348 (1982); State v. A.D.M., 216 Mont. 419, 701 P.2d 999 (1985); State v. Lamping, 231 Mont. 288, 752 P.2d 742 (1988); State v. Gilpin, 232 Mont. 56, 756 P.2d 445 (1988); State v. Medina, 245 Mont. 25 798 P.2d 1032 (1990); State v. Biehle, 251 Mont. 257, 824 P.2d 268 (1992). Montana has not found that there is lack of sufficient evidence to sustain a guilty verdict even though there are inconsistencies in the victim's testimony. See eg. State v. Anderson, 211 Mont. 272, 686 P.2d 193 (1984); State v. Sanderson, 214 Mont. 437, 692 P.2d 479 (1985) where Defendant was charged with two counts of Sexual Intercourse without Consent and the victim testified to two separate actsoccurring on the same evening but with brief time between the two acts, but the jury convicted him of one and acquitted him of the other. Other Montana cases on this topic are: State v. Geyman, 224 Mont 194, 729 P.2d 475 (1986) which found the evidence supporting the conviction "compelling". The evidence consisted of the testimony of the child, his mother, a neighbor and two clinical psychologists and a clinical psychiatrist; State v. Powers, 233 Mont. 54, 758 P.2d 761 (1988) where the testimony of the victim was corroborated in part by two people who came to the Defendant's apartment during the assault and the treating physician; In Re J.W.K., 223 Mont 1, 724 P.2d 164 (1986) where the juvenile hearing was conducted before the District Court Judge and the Court concluded that as the trier of fact, the Judge had the sole province to determine the credibility of the witnesses, and that if juvenile witnesses are found to be competent their testimony provides sufficient corroboration to the youth's confession; State v. Eiler, 234 Mont. 38, 762 P.2d 210 (1988) where the Court found that the testimony of the juvenile victim and witness was sufficient to support the conviction. The Court has found insufficient evidence in two cases. In State v. White Water, Mont. , 634 P.2d 636 (1981), the Court found that the trial court's decision to issue a directed verdict and not submit the case to the jury for decision was proper since the State's evidence consisted of a prior inconsistent statement which the court found to be unreliable. In this case, the Defendant was accused of molesting his step-daughter, a fifteen-year old with a learning disability. The child went with her mother to the Sheriff's office and a statement from her was taken down in the deputy's handwriting. At trial the victim repudiated that version of the facts and in her trial testimony, the element of penetration could not be proved. In State v. Cates, 241 Mont. 282, 787 P.2d 319 (1990) the Court held that a child's testimony that the Defendant had "touched Janey's vagina a lot of times" was not sufficient to sustain the element of penetration for a conviction on sexual intercourse without consent. The majority opinion did not discuss the testimony from the pediatrician which had clearly stated that the child victim had been a victim of penetration. The dissenting justice tried to point out that the issue was not the question of penetration, but the question of identity of the offender, but to no avail. In State v. Hamm, 250 Mont. 123, 818 P.2d 830 (1991), The Court found sufficient evidence of the element of force in a rape prosecution. Defendant had grabbed victim by the hair and forced her upstairs, ordered her to undress and asked if she liked "forced sex"; defendant repeatedly penetrated her while she cried and pleaded with him to stop; examining physician found abrasions in vaginal area which indicated "some degree of force" was used. In State v. McLain, 249 Mont. 242, 815 P.2d 147 (1991), the Court found that the evidence was sufficient to support a conviction of sexual assault, in spite of inconsistencies on minor details. The jury may infer intent that touching was for sexual gratificationfrom conduct. In this case, defendant pinched and stroked victim's private areas, then told her not to tell her mother. In State v. Biehle, 251 Mont. 257, 824 P.2d 268 (1992), the Court reiterated the rule from Gilpin, that the victim's testimony in a child sexual abuse case need not be corroborated. No proof of penetration is necessary to sustain a conviction for sexual assault. In State v. Sage, 255 Mont. 227, 841 P.2d 1142 (1992), the Defendant, who was convicted of solicitation to commit incest, argued that such conduct did not constitute a crime in Montana. Defendant had asked his daughter to sexually fool around with him, cut a peephole in a wall and installed a video camera in the bathroom so that he could watch her. He argued that he was soliciting a victim as opposed to someone to commit a crime. The Court rejected his argument and found sufficient evidence to sustain his conviction. In State v. Howell, 254 Mont. 438, 839 P.2d 97 (1992), cert. denied, S. Ct. (1993), the Court found more than sufficient evidence to sustain convictions for sexual intercourse without consent, sexual assault, and indecent exposure against a nine-year old victim. The Court reiterated the principle that the uncorroborated testimony of the child victim was sufficient, and also held that expert testimony is not required to prove sexual assault of children. In State v. Keys, 258 Mont. 311, 852 P.2d 621 (1993), the Court found the victim's testimony supported by the physical evidence and the testimony of witnesses who were with her shortly after the crime constituted sufficient evidence to support the verdict of guilt of sexual intercourse without consent. The Court found the evidence sufficient in State v. Little, 260 Mont. 460, 861 P.2d 154 (1993), held that testimony of both victims that the defendant had performed various sexual acts upon them during specified time periods while they were under age of 16 as well as testimony of defendant's natural daughter confirming that younger victim had told her of defendant's sexual acts was sufficient for conviction of sexual intercourse without consent and sexual assault. In State v. Bromgard, 261 Mont. 291, 862 P.2d 1140 (1993), the Court held that there was sufficient evidence to support a conviction of sexual intercourse without consent. The 8-year old victim had identified the Defendant sufficiently and any inconsistencies in her testimony went to her credibility and were a matter within the province of the jury. In State v. Muir, 263 Mont. 211, 867 P.2d 1094 (1993), the Court found the evidence sufficient to prove that a "statutory rape" had occurred since Defendant first admitted to police that he knew the girl was 14 at the time of the intercourse. Although at trial he testified that he thought she was 17, the jury was not persuaded by his testimony. In State v. Henderson, 265 Mont. 454, 877 P.2d 1013 (1994), the Court decided that the Defendant could not be found guilty of accountability for Incest. In that case, the evidence had demonstrated that Defendant had forced his children to perform simulated sex acts while Henderson masturbated nearby. The Court found that although the evidence showedthat those acts took place, it did not amount to Incest since the none of the children were touching for purpose of sexual arousal or gratification. In State v. Henrich, 268 Mont. 258, 886 P.2d 402 (1994), the Court again held that the uncorroborated testimony of a victim is sufficient to sustain a conviction, even if the victims are small children. The Defendant had argued that their testimony was incredible because of inconsistent statements and the fact that they had a history of making false accusations and a motive to fabricate testimony. The Court held that weight and credibility of the witnesses is exclusively within the province of the jury. In addition, the Court concluded that defendant waived his objection on appeal by not objecting at the time of trial to this issue. In State v. Weeks, 270 Mont. 63, 891 P.2d 477 (1995), Defendant argued that his motion to dismiss at the close of the State's case should have been granted. The Court disagreed citing the testimony of the victim who testified that the Defendant had had intercourse with her from the time she was 8, that only he had had intercourse with her, that he was the father of her baby, and the DNA evidence made the Defendant 1.9 million times more likely that the random man to be the father of the child. In State v. Black, 270 Mont. 329, 891 P.2d 1162 (1995), defendant was charged with sexual intercourse without consent, but following a bench trial, convicted of sexual assault. Defendant argued he could not be convicted of sexual assault because he was not charged with that offense. The court held that the issue of whether or not sexual assault is a lesser included offense was not before the court because it was not raised at the district court level, but proceeded to accept that sexual assault was a lesser included offense, and that the testimony of the victim was sufficient to sustain a conviction of that offense. In State v. Riley, 270 Mont. 436, 893 P.2d 310 (1995), defendant argued that there were not sufficient facts in the record to support the fact that he touched his stepdaughter for the purpose of sexual gratification. Her testimony was that he touched her breasts and her pubic area and that "he would press his penis area up against my body and say, see what you can do to an old man whenever he would get hard." The Court found that intent was a question of fact for the jury and that the jury could infer intent from the defendant's acts. In State v. Fuller, 266 Mont. 420, 880 P.2d 1340 (1994), defendant was charged with attempted sexual assault and was found guilty after a bench trial. Testimony from the three young girls was that he drove by in a car, honked his horn, and stated "nice butt" and then came back driving on the wrong side of the road and pulled up on the sidewalk directly alongside and stated "let's do it" while sticking out his tongue and licking his lips. A detective testified that in an interview, he stated that he was on the very edge of having a significant problem sexually with children and that he believed himself to be a pedophile. The Court issued inconsistent findings of fact, and one fact was that the Court did not find that the defendant intended to actually touch thechildren. Based on that finding, the Supreme Court concluded that the Defendant should have been found not guilty since there must be proof of intent to commit the underlying offense if charged with an attempt. In State v. Graves, 272 Mont. 451, 901 P.2d 549 (1995), an intoxicated victim had passed out and was awakened when someone began having intercourse with her. Defendant argued there was insufficient evidence to demonstrate victim was incapacitated. The court again stated that a rape conviction can be substantiated on the uncorroborated testimony of the victim and that credibility issues are resolved by the trier of fact. In State v. Gould, 273 Mont. 207, 902 P.2d 532 (1995), the Defendant argued that he could not be found guilty of sexual intercourse without consent based on a mental incapacity theory because the victim had voluntarily consumed the alcohol which caused her to pass out. The Court disagreed and held that voluntary consumption of an intoxicating substance to the point of unconsciousness can amount to mental incapacity. The Defendant also argued that there were insufficient facts to show that the victim was a "person" under Montana law since the exact time of the victim's death was unknown and Defendant argued that he had intercourse with her after she died and therefore she was not a "person." The Court found sufficient facts in the record to show that she had not died until after he had intercourse with her. In State v. Ford, 278 Mont. 353, 926 P.2d 245 (1996), evidence of the victim's testimony that the defendant had sexual intercourse with him without his consent, then rubbed baby oil on his back, later apologized for his behavior and that a bottle of baby oil was found in his trailer was sufficient to support a conviction. In State v. McQuiston, 277 Mont. 397, 922 P.2d 519 (1996) defendant could be convicted of both Sexual Intercourse without consent and incest.
N.Request by Jury to rehear testimony. In State v. Harris, 247 Mont. 405, 808 P.2d 453 (1991), the Court found error when the Court reread the entire testimony of one of the child victims. The Court also stated that if any testimony was to be reread, it was to be accompanied by a specific instruction which told the jury that it was error to have the entire testimony read back because of the danger of undue emphasis being placed on that evidence, but that if there was a particular point that the jury was trying to resolve, the Court would consider the matter. The Court also stated that testimony should be reread only in limited circumstances on factual matters such as "the width od a street, the height of an object, distance, time or some other limited request." That prohibition was restated in State v. Evans, 261 Mont. 508, 862 P.2d 417 (1993, a felony assault case. The issue was raised again in State v. Henrich, 268 Mont. 258, 886 P.2d 402 (1994). In Henrich, the jury asked for the entire testimony of one of the child victims to be reread. The trial judge consulted the jury about the area that they wereconcerned and then presented limited portions of the testimony but failed to give the Harris instruction. The Supreme Court found error in the failure to give the Harris instruction, but concluded that the error was harmless. In State v. Graves, 272 Mont. 451, 901 P.2d 549 (1995), the jury asked to hear again certain portions of the detectives testimony concerning the prior inconsistent statement of the Defendant. The trial judge after consulting with counsel declined to read any portion of the testimony back. The Court held that such decision was within the discretion of the judge, and that no abuse of discretion was found.
O.Juror Misconduct. In State v. McNatt, 257 Mont. 468, 849 P.2d 1050, 50 (1993) Defendant claimed that juror misconduct had denied him a fair trial. In this case, the step-sister of the victim was being cross-examined on the issue of what the victim had told her about the incident. Defense counsel asked her on four separate occasions about her statements during a pre-trial interview differing from her trial testimony. The witness got upset and began to cry. After the fourth version of the same question, the State objected as "asked and answered". The Court did not rule directly on that objection, but noted that this was the point that the witness breaks down all the time. At this point, a juror interrupted and stated that he could not sit through anymore questioning of this little girl and that if the Court wished to hold him in contempt, so be it. The Court then agreed that the little girl had been through enough and ordered her off the stand. The defense moved for a mistrial based on juror misconduct or in the alternative, removal of the juror and seating of an alternate juror. Both motions were denied. The Supreme Court found the actions of the Court within the discretion of the trial judge, and further stated that Defendant had not demonstrated that the juror's outburst had resulted in prejudice to the Defendant. They further held that the comment did not indicate any hostility to the Defendant nor that the juror had formed an opinion as to guilt.
P.Prosecutorial Misconduct. The Montana Supreme Court has considered the issue of prosecutorial misconduct on several occasions. Three issues have been addressed: the propriety of using statistical information on child sexual abuse during Voir Dire; the propriety of using leading questions to juvenile witnesses during the course of their examination; and prosecutorial comment during closing argument. No case has been reversed for prosecutorial misconduct, although the Court has disapproved often of particular behavior. They have, however, found that the conduct did not deprive the defendant of a fair trial. In State. v. Gilpin, 232 Mont. 56, 756 P.2d 445 (1988), the prosecutor made reference to common statistical information concerning the prevalence of child sexual abuse during voir dire. The Court disapproved, but said that the Court's instruction that prosecutor's statements were notevidence was sufficient to cure any error. In State v. Howie, 228 Mont. 497, 744 P.2d 156 (1987), the prosecutor used leading questions with the eight-year old victim. The Supreme Court held that use of such questions is proper under the rules of evidence if necessary to develop the testimony. In State v. Sanderson, 214 Mont. 437, 692 P.2d 479 (1985) the prosecutor in closing had stated to the jury that "In order to find the defendant not guilty, you have to tell K.D., first, that she was a drug pusher; second that she is a slut; and third, that she is a liar. You have got to tell her that you believe the defendant when he says she laid in back of the car and took her pants off and indicated for him to come back. And, if you can believe that, ladies and gentlemen, from the testimony that was presented in this case,you can acquit him, and let him go." The Court felt that these comments were a misstatement by the prosecution as to the standard to be applied for conviction or acquittal, but although it was error, did not affect the substantial rights of the defendant in this case because of the evidence submitted by the defendant. In State v. Chancy Long, 223 Mont. 502, 726 P.2d 1364 (1986) Defendant complained about the opening and closing arguments of the deputy county attorney who commented that the children were the future of the country and that the defendant was a threat to that future. The Court called the statements "overbroad and dramatic" but did not concluded that they rendered the trial unfair. In State v. Wiman, 236 Mont. 180, 769 P.2d 1200 (1989), the Defendant argued that the prosecutor's closing argument was an improper comment on his failure to testify. The exact issue in question were statements that the Defendant did not tell the investigating officer that the children had been coached. On appeal, the Defendant also objected to statements that certain portions of the evidence had not been contradicted. The Defendant did not, however, object to these comments during the trial. The Court found no error in the prosecutor's comments because the defendant's counsel had impeached the victim with testimony from the first trial of this cause and argued that she had been coached. The Court found that the prosecutor's comments were merely reminders to the jury that the Defendant's first comments about the accusations made in this case after waiving his Miranda rights were inconsistent with his counsel's current claims. In State v. Rhyne, 253 Mont. 513, 833 P.2d 1112, (1992), defendant in an incest case contended that the prosecutor's question during voir dire was improper. The question was whether members of the panel would feel uncomfortable telling a group of people the details of his or her first sexual experience. The defendant claimed the question was improper because it implied that the acts in question were the victim's first sexual experience when in fact that was not true. The Court did not find the question improper in the context of the voir dire. In State v. Ogle, 255 Mont. 246, 841 P.2d 1133 (1992), Defendant objected on appeal that the prosecutor had committed prosecutorial misconduct by eliciting inadmissibleevidence with no factual basis, characterized witnesses as liars, used misleading and inflammatory argument, expressed personal opinion, and used the complaining witness's religious beliefs to enhance her credibility. No objection was made to any of these alleged incidents. The Court refused to consider the allegations since they were not preserved for appeal by objection. In State v. Dixon, 264 Mont. 38, 869 P.2d 779 (1994), Defendant argued that the prosecutor's use of the term "female rape victim" after the Court had granted a motion in limine precluding the use of the word "victim", although improper, was insignificant when viewed in context with the entire trial. In State v. Hildreth, 267 Mont. 423, 884 P.2d 771 (1994), the court concluded that the State's asking a single objectionable hearsay question of a rebuttal witness, to which the witness responded prior to the defendant's objection did not constitute prosecutorial misconduct. The Court stated that the modern cases on prosecutorial misconduct have generally come in the form of the prosecutor making comments on the evidence or comments on the defendant's failure to testify. Further, in this case, the defendant did not request that the trial judge admonish the jury, give a cautionary instruction, or ask for a mistrial. The court found no demonstration that one of the defendant's substantial rights was prejudiced by the prosecutorial misconduct.
Q.Instructions. Prosecutors are advised to offer only the instructions approved in the Montana Jury Instruction Guide on the definitions of the crime and other pertinent definitions. The cases of State v. Liddell, 211 Mont 180, 685 P.2d 918 (1984) and State v. Anderson, 211 Mont. 272, 686 P.2d 193 (1984) made it clear that the old "Lord Hale" instruction concerning rape being a charge easily made and difficult to disprove" is not properly given in Montana as an improper comment on the evidence. In the case of State v. Croteau, 248 Mont. 403, 812 P.2d 1251 (1991) the Court the following instruction: "Where two witnesses testify directly opposite to each other on a material point and are the only ones that testify on that same point, you are not bound to consider the evidence evenly balanced or the point not proved; you may regard all the surrounding facts and circumstances proved on the trial and give credence to one witness over the other if you think the facts and circumstances warrant it." The Court stated that it had historically disapproved of this instruction in criminal cases. The court further stated that such an instruction reduces the State's burden of proof in a criminal case from guilt beyond a reasonable doubt to that applicable in a civil case. In State v. Chancy Long, 223 Mont. 502, 726 P.2d 1364 (1986), the Court held that misdemeanor assault is not a lesser included offense of sexual assault, and therefore the refusal to instruct on misdemeanor assault was proper in this case. In State v. Sheppard, 253 Mont. 118, 831 P.2d 370, (1992), the Court ruled that the trial court in a noncapital case does not havea duty to instruct the jury on a lesser-included offense absent a request for such an instruction. The court may instruct sua sponte if the evidence supports it. Defendant was convicted of sexual intercourse without consent and argued that it was a violation of due process not to instruct on misdemeanor sexual assault. The Supreme Court reasoned that defense counsel may have wanted to omit a lesser-included offense instruction as a matter of strategy, and attorneys, rather than judges should try cases. In State v. Ogle, 255 Mont. 246, 841 P.2d 1133 (1992), the State offered instructions on the lesser included offense of Sexual Assault in a prosecution for Sexual Intercourse without Consent. The Defendant objected, but did not specifically state his objection to the instruction. The Court found that in the absence of a proper objection, the lesser-included offense issue was not preserved for appeal. The Court also held that in a case in which lack of consent is based on age, the issue of "without consent" is not an element of the offense, and therefore there is no need to instruct on the consent issue in such a trial. However, there is no error to so instruct on the issue since it merely adds another element to the prosecution's burden of proof. In State v. Howell, 254 Mont. 438, 839 P.2d 87 (1992), cert. denied S. Ct. (1993), the District Court gave cautionary other acts instructions to the jury which stated that the evidence could be considered to show defendant's "continuous pattern of conduct." The language was superfluous and should not have been included in cautionary instructions under Just, but the inclusion was not prejudicial and was thus harmless. In Howell, Defendant offered an instruction that put the three offenses charged, sexual assault, sexual intercourse without consent, and indecent exposure, as alternate charges rather than separate provable offenses. The court said the trial court properly rejected the proposed instruction since the charges were separate, there was sufficient evidence to support the separate offenses, and there was no objection made to the specificity of times of the alleged offenses in the information. In State v. Scott, 257 Mont. 454, 850 P.2d 286, (1993), the Court instructed the jury that the law did not require that the time and place of alleged criminal act be stated with impossible precision. The Defendant objected saying that such an instruction contradicted the allegation found in the Information. The Court did not find error in the giving of such an instruction taking all the instructions as a whole. In State v. Ray, 267 Mont. 128, 882 P.2d 1013 (1994), although this case was reversed on other grounds, the court approved a specific instruction for the offense of solicitation of sexual assault. In State v. Steffes, 269 Mont. 214, 887 P.2d 1196 (1994), the court dealt with numerous instruction questions. The court determined that defendant was not entitled to a lesser included offense instruction when the charged offense was deviate sexual conduct and the lesser offered was endangering the welfare of children because endangering was not a lesser included offense of deviate sexual conduct. Steffes alsoargued that the definition of knowingly was incomplete and mislead the jury, but the court found that he submitted no authority for the claim and therefore did not consider the issue. The court also approved an instruction which stated that defendant's intent to gratify his sexual desire can be inferred from his conduct, and that the trial judge properly refused the defendant's instruction on circumstantial evidence since this case was not based entirely or substantially on circumstantial evidence since there was testimony from the two victims. In State v. Bradley, 269 Mont. 292, 889 P.2d 1167 (1995), in a rape case under the old law which made an exemption for "spouse", the court found that the defendant was entitled to an instruction on the issue of spouse since whether he and the victim had been living as husband and wife at the time of the alleged crime was a question of fact for the jury.
R.Jury Deliberations. In State v. Harris, 247 Mont. 405, 808 P.2d 453 (1991) and State v. Mayes, 251 Mont. 358, 825 P.2d 1196 (1992), the Court held that the trial court committed reversible error by permitting the jury to rehear the entire testimony of a witness. In Harris, the testimony requested was that of the child victim and the court reporter read back the testimony of both direct and cross examination. In Mayes, the testimony was of two social workers who repeated child hearsay statements of the child-victims and the testimony went to the jury by means of a tape recording which is the system for court reporting used in Bozeman. The Court found that the repetition of the entire testimony placed undue emphasis on the statement of that particular witness to the exclusion of the testimony of other witnesses. The Court interpreted 46-16-503(2) M.C.A. which gives the trial court discretion in the decision to allow a replaying or restatement of testimony from a trial. The Court cautioned that future trial judges should avoid placing undue emphasis on any particular testimony, and that jurors should be asked which portion of the testimony has caused the disagreement. The Court also stated that if any testimony was to be reread, it was to be accompanied by a specific instruction which told the jury that it was error to have the entire testimony read back because of the danger of undue emphasis being placed on that evidence, but that if there was a particular point that the jury was trying to resolve, the Court would consider the matter. The Court also stated that testimony should be reread only in limited circumstances on factual matters such as "the width od a street, the height of an object, distance, time or some other limited request." That prohibition was restated in State v. Evans, 261 Mont. 508, 862 P.2d 417 (1993, a felony assault case. The issue was raised again in State v. Henrich, 268 Mont. 258, 886 P.2d 402 (1994). In Henrich, the jury asked for the entire testimony of one of the child victims to be reread. The trial judge consulted the jury about the area that they were concerned and then presented limited portions of the testimony but failed to give the Harris instruction. The Supreme Court found error inthe failure to give the Harris instruction, but concluded that the error was harmless. In State v. Graves, 272 Mont. 451, 901 P.2d 549 (1995), the jury asked to hear again certain portions of the detectives testimony concerning the prior inconsistent statement of the Defendant. The trial judge after consulting with counsel declined to read any portion of the testimony back. The Court held that such decision was within the discretion of the judge, and that no abuse of discretion was found.
IV.Sentencing.
A.General provisions: In State v. Suiste, 261 Mont. 251, 862 P.2d 399 (1993), a defendant was initially sentenced for rape in 1979 and given a suspended sentence with no parole eligibility designation who was resentenced after a probation violation and given a dangerous offender designation. Defendant objected that the dangerous offender designation was an ex-post facto law, and the court ruled that the statutes in effect at the time of the original sentence govern any resentencing following probation violations. In State v. Wing and Lorenz, 264 Mont. 215, 870 P.2d 1368 (1994), the court remanded the case for additional findings because the court did not adequately state its reasons for a dangerous offender designation. In State v. Henrich, 268 Mont. 258, 886 P.2d 402 (1994), the defendant was convicted of a number of sex offenses and the presentence investigation recommended incarceration because the defendant continued to deny his guilt. Defendant argued that such a recommendation violated his Fifth Amendment rights as set forth in State v. Imlay, 249 Mont. 82, 813 P.2d 979 (1991). The court disagreed and stated: "Imlay does not prevent a professional counselor from testifying at the sentencing phase that, in his or her opinion, a defendant ought to be incarcerated. Rather, Imlay prevents a sentencing court from incarcerating a defendant for refusing to confess to the crime in order to complete treatment that is a condition of a suspended sentence." The court concluded that the defendant was sent to prison for punishment because of the severity of his crimes and the slim prospects of rehabilitation, not because he failed to admit his guilt. In State v. Stevens, 273 Mont. 452, 904 P.2d 590 (1995), the defendant filed a post conviction appeal arguing that imposition of a prison term for sexual assault is inconsistent with the State's correctional policy in effect at the time of the crime, and that the trial judge had improperly analyzed the factors for sentencing non violent offenders. The Supreme Court disagreed and affirmed the sentence. In State v. Finley, 276 Mont. 126, 915 P.2d 208 (1996), the trial judge reserved its authority to designate defendant a dangerous or nondangerous offender at the time his suspended sentence is revoked. Because the statute granting the district court the authority to make such a reservation did not exist at the time of the commission of theoffense, the reservation was in error. In State v. McQuiston, 277 Mont. 397, 922 P.2d 519 (1996), defendant was designated a persistent felony offender after being convicted of both incest and sexual intercourse without consent. He was given a sentence of 22 1/2 years in prison on the incest charge with 5 years suspended. His counsel objected that the maximum sentence possible on the incest charge at the time of the offense was 20 years, and the court was using the new 100 sentence and therefore there was an ex-post facto problem. The court disagreed and said that when a person is designated a persistent felony offender, then 100 years is the sentence that can be imposed, and therefore no error was committed. In addition, in this case, no sex offender evaluation was done, and the pre sentence author stated in his report that since the defendant was a denier, two treatment clinics had stated an evaluation would be of no benefit. The trial judge decided to proceed with sentencing without an evaluation despite the mandatory language in the statute. The supreme court stated that there was no abuse of discretion and found the sentence appropriate. In State v. Ford, 278 Mont. 353, 926 P.2d 245 (1996), a sentence of 100 years without parole was not cruel or unusual or a violation of the prohibition against excessive sanctions because it was within the statutory parameters, and further the sentencing court had considered the defendant's prior criminal history of sexually preying on young boys, defendant's apparent unwillingness to accept treatment provided by professional therapists and state officials, and his predatory nature.
B.Hearsay is acceptable in a pre-sentence investigation report. In State v. D.B.S. 216 Mont. 234, 700 P.2d 630 (1985), the defendant objected to hearsay statements from the mother of the victim, the grandparents of the victim which were contained in the PSI. The Court did delete, pursuant to Defendant's objection, a statement from another individual concerning a possible sexual molestation. The Court noted that the statute on PSI's does not limit the use of hearsay statements. In this case, the Court also stated that it was proper for the trial judge to rely on the recommendation of the probation officer in making a sentencing determination. In State v. Alexander, 265 Mont. 192, 875 P.2d 345 (1994), the Court remanded the case for resentencing as the trial judge did not consider prior to sentencing the sexual offender evaluation as required by 46-18-111.
C.Use of mental disease of defect in sentencing. In State v. Chancy Long, 223 Mont. 502, 726 P.2d 1364 (1986), there was evidence that the Defendant may have been suffering from Alzheimer's disease or an organic brain syndrome and progressive dementia. The Court remanded the case to the District Court for reconsideration of the sentence under 46-14-311 MCA.
D.Sex Offender Treatment.
1.In State v. Pease, 233 Mont. 65, 758 P.2d 764 (1988), the Defendant had his original probationary sentence revoked for failure to comply with a condition that he not have contact with the victim. The Court ordered him to complete the sex offender treatment program at the State Prison despite testimony that he would probably not benefit from such a program. The Court held that "conditions of a sentence are within the discretion of the trial judge" and approved the condition as not unreasonable.
2.In State v. Donnelly, 244 Mont. 371, 798 P.2d 89 (1990), the trial judge at sentencing ordered that the Defendant not be eligible for parole until he had completed the sex offender treatment program at the State Prison. His counsel objected because he claimed that in order to be accepted into the treatment program, he would have to admit committing the offense which he continues to deny, and therefore he would be violating his Fifth Amendment Rights. The Montana Supreme Court rejected this argument arguing that although defendant was faced with a difficult decision, it was a tactical decision not a compelled one. The Donnelly court relied on the case of Matter of C.L.R., 211 Mont. 381, 685 P.2d 926 (1986) in which a convicted child killer had to decide whether to remain silent because his case was on appeal or to testify at the termination hearing on his son born after the first child died.
3.In State v. Imlay, 249 Mont. 82, 813 P.2d 979 (1991) cast grave doubt on the continuing validity of this holding. In Imlay, the Defendant was convicted after a jury trial of three counts of sexual assault for fondling the vaginal area of a five-year old girl. The Defendant was placed on probation, and ordered to complete sexual offender treatment as a condition of his probation. Defendant made numerous attempts to enroll in and obtain sexual offender counseling, but no program would continue his treatment or accept him because he failed to admit his guilt. The Montana Supreme Court in a 5-0 opinion authored by Justice Trieweiler held that his sentence could not be revoked because he would be punished for exercising his Fifth Amendment rights. The Court discussed the Donnelly decision and overruled the portion of the opinion that is inconsistent with the decision in Imlay.
4.In State v. Lundquist, 251 Mont. 329, 825 P.2d 204 (1992), the Courtheld that it was an abuse of discretion for the district court to revoke defendant's suspended sentence for failure to develop a payment schedule for money owed to sexual therapist and for failure to complete the written portion of program. Defendant contended that he had undergone a "religious metamorphosis," that he was not the same man who committed the offense and that he no longer needed treatment. The Court concluded that the terms of defendant's probation did not require that he give up his religious beliefs or take food from his family's table to pay for sexual offender counseling.
5.In State v. McQuiston, 277 Mont. 397, 922 P.2d 519 (1996), defendant was designated a persistent felony offender after being convicted of both incest and sexual intercourse without consent. In this case, no sex offender evaluation was done, and the pre sentence author stated in his report that since the defendant was a denier, two treatment clinics had stated an evaluation would be of no benefit. The trial judge decided to proceed with sentencing without an evaluation despite the mandatory language in the statute, and the defendant argued that his sentence was therefore illegal. The supreme court stated that there was no abuse of discretion and found the sentence appropriate.