State v. Anderson

No. 83-442
IN THE SUPREME COURT OF THE STATE OF MONTANA

1384

STATE OF MONTANA,

Plaintiff and Respondent,
-VS-

ROGER L. ANDERSON,
Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Gordon R. Bennett, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Jackson Law Firm; Gregory Jackson argued, Helena,
I4ontana

For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Clay R. Smith argued, Asst. Atty. General, Helena
Mike McGrath argued, County Attorney, Helena, Montana

Submitted: April 2 0 , 1984
Decided: July 16, 1984

Filed:
JUC . '1984
i

Clerk
Mr. J u s t i c e L. C. Gulbrandson d e l i v e r e d t h e Opinion of the
Court.

D e f e n d a n t Roger A n d e r s o n a p p e a l s f r o m h i s c o n v i c t i o n

i n t h e D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t , Lewis
and C l a r k C o u n t y , on t h r e e c o u n t s o f sexual assault. We

affirm.

On March 22, 1983, Roger Anderson was charged by

information with three sexual offenses: sexual intercourse
without consent, attempted sexual intercourse without

consent and sexual assault. The first two c h a r g e s w e r e
s u b s e q u e n t l y amended t o s e x u a l a s s a u l t . A l l of the charges

involve three minor children: M., the defendant's
step-daughter, a g e t e n a t t h e t i m e o f t r i a l ; R. F., a friend
of M., a g e t h i r t e e n a t time o f trial; a n d L. M., another
f r i e n d o f M., age nine a t t h e t i m e of t r i a l .

R. F. and L. M. testified during the State's
case-in-chief c o n c e r n i n g s e x u a l a s s a u l t s by t h e d e f e n d a n t .

M., who made statements to authorities incriminating the
defendant, changed h e r s t o r y p r i o r t o t r i a l and testified
during the defendant's case-in-chief, denying that sexual
a s s a u l t s had b e e n c o m m i t t e d by d e f e n d a n t on h e r o r t h e o t h e r

victims. However, t h e S t a t e produced testimony t o confirm
a l l of t h e c h a r g e s of s e x u a l a s s a u l t . The j u r y a l s o h e a r d

expert testimony on the subject of sexual offenders and
c h i l d sex crime.
The jury returned a guilty verdict on all three
counts. D e f e n d a n t s u b s e q u e n t l y moved f o r a new t r i a l , b u t
the motion was denied. The court eventually sentenced
d e f e n d a n t t o t h r e e twenty-year concurrent sentences a t the
Montana S t a t e P r i s o n , suspended fifteen years of each
sentence, and d e s i g n a t e d defendant a s nondangerous for

purposes of parole eligibility. From h i s conviction and
d e n i a l o f h i s m o t i o n f o r a new t r i a l , d e f e n d a n t a p p e a l s .

The f o l l o w i n g i s s u e s a r e p r e s e n t e d on a p p e a l :
(1) Whether t h e D i s t r i c t Court e r r e d i n tendering a

c o p y of the defendant's t r i a l brief t o the State prior t o
trial and, if so, whether any substantial right of the

d e f e n d a n t was p r e j u d i c e d ?
( 2 ) Whether t h e D i s t r i c t Court e r r e d i n granting t h e

S t a t e ' s motion i n limine t o exclude evidence concerning a
prior s e x u a l a s s a u l t a l l e g a t i o n by p r o s e c u t i o n w i t n e s s

R. F. a g a i n s t an i n d i v i d u a l o t h e r t h a n t h e d e f e n d a n t ?
( 3 ) Whether t h e D i s t r i c t C o u r t a b u s e d i t s d i s c r e t i o n
by excluding evidence of the State's amendments to the

original information, although it took judicial n o t i c e of
t h e same?
( 4 ) Whether the District Court erred in permitting

testimony by a prosecution witness concerning prior
s t a t e m e n t s by a c o m p l a i n i n g w i t n e s s ?

( 5 ) Whether t h e D i s t r i c t Court e r r e d in refusing t o
permit defendant's r e q u e s t t o examine a p a r t i c u l a r w i t n e s s

a s a h o s t i l e or adverse witness?
(6) Whether the Distict Court erred by admitting

r e b u t t a l t e s t i m o n y c o n c e r n i n g " p r i o r w r o n g f u l a c t s " by t h e
defendant?
( 7 ) Whether the District Court erred in denying
defendant's motion for a new t r i a l on g r o u n d s o f alleged
jury misconduct and insufficient credible evidence to
convict the defendant?
( 8 ) Whether t h e D i s t r i c t Court erred in refusing to
give the Smith jury instruction, which provides that

a l l e g a t i o n s of s e x u a l c r i m e s a r e " e a s i l y made b u t d i f f i c u l t
t o refute?"

WHETHER THE DISTRICT COURT ERRED IN TENDERING A C O P Y O F T H E

D E F E N D A N T ' S TRIAL BRIEF T O THE STATE PRIOR T O TRIAL AND, IF

SO, W H E T H E R A N Y S U B S T A N T I A L R I G H T O -------------------
F THE DEFENDANT WAS

PREJUDICED?

D e f e n d a n t ' s t r i a l b r i e f , p r e s e n t e d t o t h e j u d g e a few

days b e f o r e t r i a l , o u t l i n e s four arguments o r t h e o r i e s t o be

advanced by defense counsel: (1) t h e introduction of

testimony to establish defendant's "good character;" (2)

e v i d e n c e o f w r o n g f u l m o t i v e s on t h e p a r t o f R. F. t o t e s t i f y

against the defendant, to wit: t h a t s h e was a t t e m p t i n g t o

" g e t back" a t d e f e n d a n t , a p o l i c e o f f i c e r , f o r apprehending

her for criminal a c t i v i t y on a t l e a s t two o c c a s i o n s , and

reporting another incident of her wrongful conduct to

sheriffs' deputies; (3) introduction of evidence of the

S t a t e ' s amendments t o t h e o r i g i n a l i n f o r m a t i o n t o show t h e

"instability" of prosecution witness testimony; and (4)

i n t r o d u c t i o n of e v i d e n c e of a previous sexual crime charge

made by R. F. a g a i n s t a n o t h e r man, a charge subsequently

dismissed, t o a g a i n e s t a b l i s h w r o n g f u l m o t i v e s by R. P. in

complaining a g a i n s t defendant.

Upon r e c e i p t o f t h e b r i e f , t h e t r i a l j u d g e t e n d e r e d a

copy t o t h e c o u n t y a t t o r n e y . Defense counsel l e a r n e d t h a t a

c o p y had b e e n d e l i v e r e d when t h e c o u n t y a t t o r n e y c a l l e d him
t o o b t a i n f u r t h e r i n f o r m a t i o n a b o u t s t a t e m e n t s made i n t h e
brief. Prior to the s t a r t of trial, defendant moved to

dismiss the charges, a r g u i n g t h a t r e l e a s e o f t h e b r i e f had
unfairly permitted the State to rehabilitate its witnesses
and revise its voir dire, cross-examination and rebuttal
strategies. The court responded that defendant was never
ordered to produce the trial brief, and that it had tendered
a copy of the brief only to expedite the trial. The motion
to dismiss charges was denied.
On appeal, defendant renews his initial arguments
supporting dismissal of the charges, arguing that release of
a copy of the brief to opposing counsel was in violation of
the constitutional guarantee against self-incrimination and
local court rules and customs pertaining to trial briefs.
The protections of the Fifth Amendment to the United
States Constitution, made available to criminal defendants
in state proceedings through the due process component of
the Fourteenth Amendment, pertain only to compelled
self-incrimination. Lefkowitz v. Cunningham (1977), 431
U.S. 801, 804-5, 97 S.Ct. 2132, 2135, 53 L.Ed.2d 1, 6;
Malloy v. Hogan (1964), 378 U.S. 1, 8, 84 S.Ct. 1489,
1493-94, 12 L.Ed.2d 653, 659-60. Assuming, for the purpose
of argument, that the contents of defendant's brief even
raised the prospect of self-incrimination, defendant was
under no compulsion to produce the information or arguments
summarized in the trial brief.
Furthermore, nothing in the First Judicial District
Court rule or custom on trial briefs affords defendant the
kind of confidentiality sought after respecting the contents
of his brief. The rule or custom requires only that a brief
set forth counsel's theory of the case and the issues
involved plus supporting authorities. Neither party need
disclose in detail the nature of evidence to be offered. A
brief need not be served on opposing counsel, but rule or
custom does not prevent the District Court, in the exercise
of its discretion, from forwarding a copy of the the trial
brief of one party to another after the brief is filed with
the court.
Whether there exists any set of circumstances under
which tender of a trial brief to an opposing party would be
impermissible, other than the threat of compelled
self-incrimination, is irrelevant here. The subject matter
of defendant's trial brief was to be freely offered and
elaborated upon at trial. Thus, defendant effectively
waived any privileges which may have been involved with
respect to the contents of the brief. - State v. Hardy
Cf.
(1977), 293 N.C. 105, 235 N.E.2d 821, 841, (work product
privilege waived when defendant or state seeks at trial to
make testimonial use of the work product). Moreover,
defendant suffered no substantial prejudice from disclosure
of the brief. Prosecuting attorneys presumably would have
moved in limine to exclude evidence of the amendments to the
information and R. F.'s allegation of previous sexual
assault even if they had not received the brief in advance
of trial. The disclosure that defendant intended to adduce
testimony about his "good character" and R. F. Is allegedly
wrongful motives is likely innocuous, as there is no
reasonable possibility that the trial court's tender of a
copy of the brief might have contributed to the conviction.
The most that can be said of the court's action is that it
fairly facilitated the trial process by avoiding disruption
of testimonial flow.
WHETHER THE -
DISTRICT COURT E R R E D I N GRANTING THE STATE'S
MOTION
------ I N L I M I N E TO E X C L U D E E V I D E N C E C O N C E R N I N G A PRIOR

SEXUAL ASSAULT
- A L L E G A T I O N BY PROSECUTION WITNESS R . F .
-------------------
AGAINST AN I N D I V I D U A L OTHER THAN THE DEFENDANT?
Defendant wished t o produce e v i d e n c e of a p r e v i o u s l y

dismissed sexual assault charge involving R. F. as the
c o m p l a i n i n g w i t n e s s t o d e m o n s t r a t e t h a t s h e had a v e n g e f u l

motive in bringing a similar charge against defendant.
P r i o r t o t r i a l , t h e S t a t e moved t o e x c l u d e t h i s e v i d e n c e and

the court conducted a hearing to consider the State's
motion.
The previous case, State v. Everitt Bratcher,
c o n c e r n e d a c h a r g e t h a t B r a t c h e r had s e x u a l l y a s s a u l t e d R.

F. on s e v e r a l o c c a s i o n s over t h e four-year period p r i o r t o
1980. The case was d i s m i s s e d on m o t i o n o f t h e p r o s e c u t i n g

attorney in January, 1980. According to defendant
Anderson's c o u n s e l , t h e c h a r g e a g a i n s t B r a t c h e r was u n t r u e ,
and counsel offered to produce Bratcher's attorney as a

witness to support the claim that t h e c h a r g e was false.
B r a t c h e r ' s a t t o r n e y would n o t o n l y t e s t i f y t h a t h i s c l i e n t
had a d a m e n t l y d e n i e d t h e c h a r g e , b u t t h a t i t was h i s b e l i e f

that the c h a r g e was m o t i v a t e d o n l y b y R. F.'s desire to

o b t a i n revenge f o r having been denied a c c e s s t o a p l a y a r e a
by Bratcher. Defendant Anderson's counsel argued that
i n d e p e n d e n t m e d i c a l t e s t i m o n y t o be h e a r d i n t h e immediate
c a s e would a t l e a s t c o n f i r m t h a t R. F. had n e v e r e x p e r i e n c e d

sexual intercourse. In summary, counsel maintained that
cross-examination of R. F. on the history of the prior
c h a r g e was j u s t i f i e d a s a t e s t o f R. F.'s credibility, and
t h a t t h e r e would b e no a t t e m p t made t o p r o b e i n t o R. F.'s
g e n e r a l moral c h a r a c t e r .

The State sought to exclude introduction of this
e v i d e n c e on t h e g r o u n d s t h a t t h e p r e v i o u s c h a r g e had b e e n
d i s m i s s e d b e c a u s e R. F.'s mother d i d n o t want h e r d a u g h t e r

to experience the rigors of trial, - because
not the
a l l e g a t i o n s against Bratcher were false. The p r o s e c u t i n g

a t t o r n e y r e s p o n s i b l e f o r t h e Bratcher c a s e t e s t i f i e d under
oath that the only basis for dismissing the charges was

because of R. F.'s mother's "vehement request," and that
t h e r e was no d o u b t i n h i s mind r e g a r d i n g t h e t r u t h f u l n e s s o f

R. F.'s allegations against Bratcher. One of the

p r o s e c u t i n g a t t o r n e y s i n t h e i n s t a n t c a s e informed t h e c o u r t

t h a t t h e s o c i a l w o r k e r i n v o l v e d w i t h R. F. i n the Bratcher
c a s e had u r g e d t h e f a m i l y t o d r o p t h e c h a r g e s , b e c a u s e R . F .

had e s s e n t i a l l y f o r g o t t e n t h e a l l e g e d a s s a u l t s , and b e c a u s e
t h e e x p e r i e n c e o f t r i a l c o u l d h a v e b e e n bad f o r h e r . As to

the matter of whether R.F. had suffered penetration, the
S t a t e i n d i c a t e d t h a t B r a t c h e r had b e e n c h a r g e d w i t h s e x u a l

assault, r e g a r d l e s s of s t a t e m e n t s made by R. F. t h a t could
be construed as evidence that she may have experienced
intercourse.
The t r i a l j u d g e g r a n t e d t h e S t a t e ' s m o t i o n i n l i m i n e ,

c o n c l u d i n g t h a t t h e d e f e n d a n t ' s " e v i d e n c e " was more u n f a i r l y
prejudicial than probative. The judge's explanation for

t h a t r u l i n g is i n s t r u c t i v e :

"Here w e have [ d e f e n d a n t ' s proposed]
e v i d e n c e t h a t c l e a r l y w i l l smear t h e
w i t n e s s of t h e S t a t e o f being n o t h i n g
less t h a n a s e x u a l l i b e r t a r i a n , always
g e t t i n g i n t r o u b l e , committing o t h e r
o f f e n s e s , b e i n g s e d u c e d f r o m time t o
t i m e , and s o on. I t ' s p r e s e n t e d , as
noted b y r
witness' c r e d i b i l i t y , but, i n f a c t , it
------------ p l a i n i n g w i t n e s s
p u t s t h e com . ..on
 t r i a l f o r s e x u a l d e v i a t i -------------
on. When y o u
b a l a n c e t h a t a s a i n s t what can be proven
bv t h e f a c t t h a t s h e b r o u a h t a c h a r a e and
t h e n d r o p p e d i t , is p l a c i n g a b u r i e n on
the State that the State should n o t have
t o b e a r , and I t h i n k i t d e f e a t s t h e b a s i c
e n d t h a t we're t r y i n g t o r e a c h h e r e , a n d
t h a t is disc
------------o v e r t h e t r u t h a b o u t t h i s
D a r t i c u l a r c o m ~ l a i n t. . . T T l h e f a c t
t h a t under t h e circumstances d e s c r i b e d by
[the prosecutor i n the Bratcher case],
~.
t h a t t h i s c a s e was d r o w ~ e d i s n o t e v e n
.................... e a g ---------
very good e v i d e n c a i n s t h e r
, b u t i t ' s overwhel
c r e d i b i l i t y ....................... m i n g
----------
evidence a g a i n s t her c h a r a c t e r and would
................................ f t h e
t e n d t o make t h i s a t r i a l o
complaining witness." Tr. a t 25-26
(emphasis added).
On a p p e a l , d e f e n d a n t a r g u e s t h a t t h e e v i d e n c e s h o u l d
have been admitted. Defendant recognizes that the only
Montana c a s e o n t h e s u b j e c t , S t a t e v. McSloy (1953), 127
Mont. 265, 261 P.2d 663, holds that evidence of similar
sexual offenses claimed to have been committed is

inadmissible. N e v e r t h e l e s s , h e c o n t e n d s t h a t McSloy i s bad
law, out-of-step with t h e Montana R u l e s o f Evidence, and

c o n t r a r y t o a l i n e of c a s e s b e g i n i n g w i t h P e o p l e v. H u r l b u r t

( 1 9 5 9 ) , 1 6 6 Cal.App.2d 334, 333 P.2d 82, holding t h a t such
e v i d e n c e is a d m i s s i b l e .
R u l e 6 0 8 ( b ) , Mont.R.Evid., p r o h i b i t s use of e x t r i n s i c

evidence of specific instances of a witness' conduct to
attack his or her credibility, except that the same

i n s t a n c e s may b e i n q u i r e d i n t o on c r o s s - e x a m i n a t i o n of the
witness, i n t h e d i s c r e t i o n of t h e c o u r t , i f t h e e v i d e n c e is

probative of the witness' penchant for truthfulness or
untruthfulness. See Rule 608(b)(l). The McSloy rule

a d m i t t e d l y c u t s o f f even t h e l i m i t e d i n q u i r y contemplated by
the above-cited exception to Rule 608(b). Hurlburt,
h o w e v e r , i s more i n l i n e w i t h t h e c u r r e n t r u l e s o f e v i d e n c e .
A s t h e C a l i f o r n i a c o u r t emphasized, e v i d e n c e of p r i o r f a l s e
a c c u s a t i o n s of the same s e x u a l c r i m e involved in a more

current case, while not admissible for the purpose of

impeaching the general character or reputation of the

witness, may be admissible if probative of the witness1

s t a t e o f m i n d , m o t i v e , o r b i a s e s w i t h r e s p e c t t o making t h e

more c u r r e n t a c c u s a t i o n s . H u r l b u r t , 1 6 6 Cal.App.2d 334, 333

P.2d at 87. The principle expressed in Hurlburt-that

e v i d e n c e of prior f a l s e c h a r g e s may o f t e n b e p r o b a t i v e o f

the complaining witness' specific reputation for

untruthfulness-is approved by most j u r i s d i c t i o n s . See e.g.,

P e o p l e v . S i m b o l o ( 1 9 7 5 ) , 1 8 8 C o l o . 4 9 , 532 P.2d 9 6 2 ; P e o p l e

v. McClure ( 1 9 7 6 ) , 42 I l l . A p p . 3 d 9 5 2 , 356 N.E.2d 899; L i t t l e

v. State (1nd.App. 1 9 8 0 ) , 4 1 3 N.E.2d 639; Woods v. State

(Okla. C r i m . App. 1 9 8 3 ) , 657 P.2d 1 8 0 ; S t a t e v. Nab ( 1 9 6 6 ) ,

245 O r . 454, 4 2 1 P.2d 388; S t a t e v. Izzi ( 1 9 7 5 ) , 1 1 5 R . I .
4 8 7 , 348 A.2d 371.

I n cases involving sexual intercourse without consent,

t h e l e g i s l a t u r e h a s d e t e r m i n e d t h a t e v i d e n c e of a victim's

sexual conduct is inadmissible in all but very limited

circumstances. See Section 45-5-503(5), MCA. This

statutory prohibition reflects a compelling interest in

f a v o r o f " p r e s e r v [ i n g ] t h e i n t e g r i t y o f t h e t r i a l and .. .
preventling] i t f r o m becoming a t r i a l o f t h e v i c t i m . " State

v. Higley (Mont. 1 9 8 0 ) , 6 2 1 P.2d 1 0 4 3 , 1050-51, 37 S t . R e p .

1942, 1948. Although there are no specific statutory

limitations on the use of evidence of a victim's sexual

conduct i n sexual a s s a u l t cases, McSloy, Rule 6 0 8 ( b ) , and

evidentiary rules governing relevance, Rule 401,

Mont.R.Evid. and prejudice and confusion of issues, Rule

403, Mont.R.Evid., generally act as a barrier against
introduction of such evidence. Despite the general policy
against sordid probes into a victim's past sexual conduct,
we conclude that the policy is not violated or circumvented
if the offered evidence can be narrowed to the issue of the
complaining witness' veracity. Hall v. State (1978), 176
Ind.App. 59, 374 N.E.2d 62. Indeed, limiting or barring a
defendant's cross-examination of a complaining witness in a
sex crime case where there is evidence of prior false
accusations restricts defendant's enjoyment of the worth of
his constitutional right to confront witnesses. See Hughes
v. Raines (9th Cir. 1981), 641 F.2d 790, 792 (habeas corpus
action challenging restrictions on defendant's
cross-examination of complaining witness in attempted rape
prosecution).
Our inquiry in the immediate case is directed to
whether the trial court properly restricted mention of the
offered evidence of the prior sexual assault charges. We
emphasize that Hurlburt and related cases hold only that
evidence of similar sexual offenses claimed to have been
committed against the victim by other individuals is
admissible if the offenses were proven or admitted to be
false. Hurlburt, supra, 166 Cal.App.2d 334, 333 P.2d at 87;
People v. Johnson (Cal. Ct. App. 1967), 64 Cal. Rptr. 875,
881, vacated on other grounds (1968), 68 Cal.2d 646, 441
P.2d 111, 68 Cal.Rptr. 599, cert. den. (1969), 393 U.S.
1051, 89 S.Ct. 679, 21 L.Ed.2d 693; Little, supra (prior
allegations must be "demonstrably false"); Nab, supra. If
the charges are true or reasonably true, then evidence of
the charges is inadmissible, mainly because of its
prejudicial effect, see Little, supra, but certainly because
of its irrelevance to the instant proceeding. Little,
supra; - supra.
Nab, Furthermore, evidence of prior charges
which have not been adjudicated to be true or false; i.e.,
which may be true - false is also inadmissible, primarily
or
because its introduction circumvents the interest in
preserving the integrity of the trial and preventing it from
becoming a trial of the victim. See Little, supra
(reception of evidence which may be true or false allows
circumvention of laws designed to protect legitimate
interests of victim). These limitations do not infringe
upon a defendant's right to confrontation. See Hughes,
supra, 641 F.2d at 792-93.
In order to establish whether there is sufficient
support for the contention that the prior allegations are
false, a separate hearing outside the jury's presence should
be held. People v. Sheperd (Colo. App. 1976), 551 P.2d 210,
212. See also Woods, supra, 657 P.2d at 182. Such a
hearing was held in this case, and we conclude that, in
reviewing the arguments and offers of proof presented, the
court's decision to grant the state's motion in limine was
justified.
There was no competent evidence that the charges
brought against Bratcher on the basis of R. F.'s complaint
were fa.lse. That the charges were dismissed does not by
itself establish their falsity, especially in view of the
prosecuting attorney's testimony that the charges were
dismissed only because R. F.'s mother did not want her
daughter to experience the trial, and because of the offer
of proof concerning the social worker's belief that the
charges were true, based on her discussions with R. F.
Evidence of p r i o r c h a r g e s h a s been b a r r e d i n t h o s e i n s t a n c e s

where t h e c h a r g e s have been dropped due t o a n i n a b i l i t y t o

locate the victim, S t a t e v. Demos (1980), 94 Wash.2d 733,

619 P.2d 968, o r due t o a b e l i e f t h a t t h e r e w a s i n s u f f i c i e n t

evidence t o p r o s e c u t e , Johnson, supra, because t h e evidence

is n o t p r o b a t i v e o f truth or falsity. The same i s t r u e o f

the i n s t a n t case. The c h a r g e s w e r e n e v e r tested for truth

o r f a l s i t y and w e r e s t i l l d i s p u t e d a t t h e t i m e o f t r i a l .

Defense c o u n s e l ' s o f f e r s of proof are a l s o i r r e l e v a n t .

The fact that Bratcher's attorney would testify that

B r a t c h e r had d e n i e d t h e c h a r g e s is i n a d m i s s i b l e , whether on

grounds that a mere denial does not establish falsity,

Johnson, supra, or because the attorney's t e s t i m o n y would

have been inadmissible hearsay. See R u l e s 8 0 1 ( c ) and 802

Mont.R.Evid. a n d P e o p l e v . Mandel ( 1 9 7 8 ) , 6 1 A.D.2d 563, 403

N.Y.S.2d 63, 68, r e v ' d on o t h e r grounds ( 1 9 7 9 ) , 48 N.Y.2d

9 5 2 , 4 0 1 N.E.2d 1 8 5 , 425 N.Y.S.2d 63, c e r t . den. ( 1 9 8 0 ) , 446

U.S. 949, 100 S . C t . 2913, 64 L.Ed.2d 805. Similarly, the

e x i s t e n c e o f m e d i c a l t e s t i m o n y i n t h e i n s t a n t case t h a t R.F.

had n e v e r e x p e r i e n c e d i n t e r c o u r s e d o e s n o t p r o v e t h e f a l s i t y

of the p r i o r charges. B r a t c h e r had been charged w i t h s e x u a l

a s s a u l t , n o t s e x u a l i n t e r c o u r s e w i t h o u t c o n s e n t , a n d R. F.'s

e q u i v o c a l s t a t e m e n t s a b o u t what s h e had e x p e r i e n c e d a r e n o t

probative of the truth or falsity of the charge against

i3ratcher.

In short, the offered e v i d e n c e would not have been

probative of R. F.'s inclination for truthfulness or

untruthfulness, a s maintained by defendant, hut certainly

would have placed a prejudicial stamp on her general

character and reputation. The trial court concluded
correctly that this irrelevant, prejudicial evidence would
have shifted the focus of trial away from its central
purpose and thus had to be barred. Neverthless, the court
later permitted a reference that R. F. had been a victim of
another sexual assault. This evidence, which came about
through the testimony of social worker Mary Peterson, was
permitted for the limited purpose of showing to the jury
that R. F. could have had a basis for fantasizing the
incidents involving defendant Anderson. That ruling
followed testimony by Dr. Elizabeth Gunderson, a
petiatrician and defense witness, who testified previously
that a child like R. F., having experienced other sexual
assaults, could have a basis for fantasizing future sexual
assaults. Also, during closing arguments, defense counsel
reminded the jury about R. F.'s previous assault and implied
that she had fantasized the subsequent assault. Thus,
defendant did have the opportunity to challenge R. F.'s
veracity within the confines of the court's concern that the
trial of defendant not become a trial of the complaining
witness. This limited inquiry was proper in light of
Gunderson's testimony.
In summary, we modify our holding in McSloy to conform
to the principles expressed in Hurlburt and implicit in Rule
608(b). Applying this modified standard to the facts of the
immediate case, we conclude that the trial court did not
commit error in its rulings on the admissibility of evidence
concerning the Bratcher incident.

...................................................R E T I O N B Y
WHETHER T H E DISTRICT COURT ABUSED I T S D I S C
EXCLUDING EVIDENCE OF THE STATE'S AMENDMENTS TO THE ORIGINAL
INFORMATION, ALTHOUGH IT TOOK JUDICIAL NOTICE OF THE SAME?
The State amended its original information twice, both
times reducing charges of sexual intercourse or attempted
sexual intercourse to sexual assault. Defendant contended
that the amendments reflected changing stories by the
victims, and sought to admit evidence of the amendments for
the purpose of attacking the credibility of State witnesses.
The county attorney moved in limine to exclude the evidence
of the amendments, and supported his motion with the
following argument.
"[Als a basic trial tactic I made a
decision to amend the charges in this
case on two separate occasions. I will
admit that we made a mistake in our
office in reading the police reports
initially regarding the question of
sexual intercourse. I think we could
have proven sexual intercourse without
consent from statements made regarding
oral sex. I made a determination that I
did not want to do that. I don't want to
make an argument to the jury that oral
sex can amount to rape. There was also
some misunderstanding as ... to whether
or not there was sexual intercourse or
not as has been alluded to earlier;
therefore, I made a decision. -
The
victims did not make a decision. I made
a decision to amend the charges to reduce
......................... a trial tactic:
to sexual assault a s
Again, [defense] counsel will have the
opportunity to cross-examine all of our
witnesses on a n y-------------------
prior i n c o n s i s t e n t
statements t h e ~mav or mav not have made.
.............................. y t o
He will have a n opportunit
.............................. t h a t
cross-examine the officer
--------------------- e r e g a r d i n e
investigated this c a s ---------.-
statements made in his r e ~ o r treaardina
whether there was sexual intercourse or
not; therefore, counsel will have more
& .
than a m ~ l eo~nortunitv to deal with the
issues involved, and <
would a s k that the
jury not be informed to the fact that for
trial. tactic reasons this case has been
amended." Tr. at 27-28 (emphasis added).
After hearing arguments by defense counsel, the court
granted the state's motion, although it indicated that it
would take judicial notice of the amendments.
Defendant reasons that, once the amendments were
judicially noticed, any evidence behind their having been
made should have been placed before the jury for
consideration. As a general proposition, defendant's
argument is meritless. The trial court took notice of the
amendments only for the purpose of ruling on the motion in
limine, not for future evidentiary considerations. Judicial
notice is always confined to those matters which are
relevant to the issues at hand. See, e.g., Gbur v. Cohen
(1979), 93 Cal.App.3rd 296, 301, 155 Ca1.Rptr. 507, 510.
The trial court made it clear that judicial notice of the
amendments was not intended to place evidence of their
existence before the jury. The court's ruling was
ultimately predicated on its belief that, under Rule 401,
Mont .R.Evid., evidence of the amendments was not probative
of the veracity of prosecution witnesses. It must be
emphasized that defense counsel was given the opportunity to
cross-examine the complaining witnesses during trial
concerning their veracity. And, during closing arguments,
defense counsel pointed out what he maintained were
inconsistencies in witness testimony. We find no error in
the trial court's decision to grant the motion in limine
concerning the amendments to the original information.

WHETHER THE DISTRICT COURT ERRED BY PERMITTING TESTIMONY BY
-

-PROSECUTION WITNESS CONCERNING PRIOR STATEMENTS B Y A
A - -------------------
COMPLAINING WITNESS?
At issue is the testimony of prosecution witness Mary
Peterson, a social worker. During the direct examination of
Peterson, defense counsel objected to a line of inquiry
about statements R. F. had made to Peterson about the nature

of the sexual assaults. The inquiry was in connection to
remarks made by R. F., whose testimony on cross-examination
was allegedly unclear about the occurance of sexual
assaults. Defense counsel objected to any remarks by
Peterson as inadmissible hearsay. The State argued that
Peterson's testimony would be admissible under Rule

801(d)(l), Mont.R.Evid., which essentially removes from the
concept of hearsay prior consistent or inconsistent
statements. Over continuing objection, the trial court
specifically permitted Peterson to testify under Rule
801(d)(l)(B) as to prior consistent statements, because the
examination of R. F. had "at least raised the specter of

impeachment sufficiently to permit this sort of confirmation
by another witness."
Defendant's argument is that Peterson's remarks about
R. F.'s previous statements contradicted R.. F.'s trial
testimony, thus making the remarks prior inconsistent, as
opposed to prior consistent, statements. As such, defendant
maintains that the statements should have been excluded.
Defendant's position is based on the assertion that
Peterson's recitation of R. F.'s experiences differed
markedly from the descriptions offered by R. F. herself. By
admitting the much more graphic statements of Peterson,
defendant concludes that he was unduly prejudiced in the
minds of jurors.
Whether there exists any significant difference
between the substance of Peterson's testimony about R. F.'s
initial statements to her and R. F.'s later testimony is
immaterial with respect to the issue of admissibility.
Regardless of the trial court's references to subsection
(d)(l)(B) of Rule 801, prior inconsistent statements are
admissible under Rule 801(d)(l)(A) whether or not the
declarant has been impeached by either side in the case.
See, e.g., State v. Fitzpatrick (1980), 186 Mont. 187,
195-96, 606 P.2d 1343, 1348. Although defense counsel did
make a continuing general objection to Peterson's testimony
prior to her recitation of R. F.'s earlier statements, the
law generally requires more specific objections to be made
to portions of the testimony deemed inappropriate; broad,
general objections do not suffice. See, e.g., State v.
Britt (1977), 291 N.C. 528, 231 S.E.2d 644, 650. Defense
counsel made no specific objections to any portion of
Peterson's testimony regarding the use of prior
inconsistent, as opposed to prior consistent, statements.
Furthermore, after carefully comparing the statements
made by R. F. and Peterson, we conclude that any technical
inconsistencies are minimal and irrelevant. The statements
are practically consistent with each other. All three
incidents described depict sexual misconduct involving the
same people in the same places. The only likely
inconsistency, which involves the differing descriptions of
the first incident of assault, is not crucial to the
conviction. Whether R. F. merely danced nude on defendant's
bed while he lay naked under the covers or whether he
actually masturbated on her body was non-prejudicial,
because the inconsistency could only serve to impeach either
R. F. or Peterson. The other sexual assaults involving R.F.
were established, so the legal effect of excluding evidence
of the first incident would not warrant reversal of
defendant's convictions on the other incidents.

WHETHER T H E DISTRICT COURT ERRED IN REFUSING TO PERMIT
....................
DEFENDANT'S REQUEST TO EXAMINE A PARTICULAR WITNESS AS A
HOSTILE OR ADVERSE WITNESS?
M., defendant's stepdaughter, was one of the victims,
but was not called as a prosecution witness, even though she
had been listed as one in the final information. The
defense called her as a witness in its case-in-chief, and
requested that she be examined as a hostile witness under
Rule 6ll(c), Mont.R.Evid., solely on grounds that she had
been listed as a prosecution witness. The State objected,
and the motion was denied until such time as M. 's testimony
during cross-examination actually reflected hostility toward
defendant. M. proceeded to testify, denying any sexual
improprieties involving her and her friends with defendant
and denying statements made to social worker Mary Peterson
about these improprieties.
The question of whether a witness is adverse under
Rule 611(c) is addressed to the sound discretion of the
trial court. Jojola v. Baldridge Lumber Co. (Ct.App. 1981),
96 N.M. 761, 635 P.2d 316, 318 (interpreting Rule 611(c),
N.M.R.Evid., which is identical to the Montana rule). This
is consistent with pre-Rules of Evidence case law in
EJIontana. See, e.g., State v. Collette (1946), 118 Mont.
473, 477, 167 P . 2 d 584, 586. Here, the trial court was not
unwilling to let defense counsel proceed under Rule 611 once
actual hostility was established. In light of M.'s
testimony absolving defendant, the "on-paper" significance
of M. initially being identified as a prosecution witness is
irrelevant.

WHETHER .............................................
T H E DISTRICT COURT ERRED IN T H E ADMISSION OF
REBUTTAL TESTIMONY CONCERNING "PRIOR WRONGFUL ACTS" BY THE
DEFENDANT?
At issue is the testimony of D. H., a young girl who
supposedly had slept in defendant's bed while defendant was
both present and naked. The event allegedly took place some
time before the incidents involved in the instant case,
while D. H. was visiting M. The State had given notice
under State v. Just (1979), 184 Mont. 262, 602 P.2d 957,
that it intended to introduce such evidence to show
"opportunity, intent, plan, knowledge, [and/or] absence of
mistake or accident." However, the State did not produce D.
H. as a witness during the case-in-chief. Instead, she was
produced as a rebuttal witness, and was permitted by the
court to testify over objection as to the incident in
defendant's bed.
Defendant renews two arguments advanced during trial:
first, that the admission of the rebuttal testimony is
controlled by the substantive requirements outlined in Just
for admissibility of "other crimes" evidence; and second,
that the testimony does not meet any of the requirements.
Rule 404(a)(l), Mont.R.Evid., permits the accused to
offer evidence of his good character to support an inference
that he did not commit the crime, and allows the prosecution
to rebut the same with contrary evidence. In the instant
case, the defendant testified on his own behalf, claiming
that he had never engaged in improper sexual activity with
his stepdaughter, the other victims, or anyone else.
Defendant's wife also testified on his behalf, describing
his sexual mores as orthodox, and that the charges against
him did not comport with her knowledge of him. Defendant's
step-daughter denied the existence of the assaults and the
alleged incident with D. H. Other witnesses also testified
as to defendant's good character. The major aim of
defendant's case, as revealed by the testimony of defendant
and his witnesses, was the establishment of defendant's
reputation for morality and personal truthfulness--conduct
and beliefs inconsistent with the charges filed against him.
Under the circumstances, the State was entitled to rebut
what it believed were false claims. The only rebuttal
witness to testify about these matters was D. H. The fact
that the prosecuting attorneys reserved her testimony until
rebuttal, rather than present it during the State's
case-in-chief, is of no legal consequence. The Just
substantive requirements for admissibility of "other crimes
or acts" evidence do not apply to rebuttal evidence offered
under Rule 404(a) (1). We therefore need not determine
whether the essence of D. H.'s testimony meets these
requirements.

WHETHER THE DISTRICT COURT ERRED IN DENYING DEFENDANT'S
M O T I O N F O R A N E W T R I A L ON G R O U N D S O F ALLEGED J U R O R
..................................................
MISCONDUCT AND INSUFFICIENT CREDIBLE EVIDENCE TO CONVICT THE
DEFENDANT?
1. Jury Misconduct
After trial, defense counsel procured an affidavit
from one of the jurors, Lucy Lamping, stating that she
believed the defendant was innocent, and that the guilty
verdicts were the result of pressure brought to bear on her
and other jurors because of the late morning-early hour
deliberations and a belief by some jurors that if a new
trial was ordered (presumably because of a hung jury),
defendant would eventually be convicted anyway. Defendant
reasons that Rule 606(b), Mont.R.Evid. permits introduction
of the Lamping affidavit because the assumption that
defendant would receive a new trial was the kind of improper
outside information frowned upon under the Rule, and because
the pressures of late night-early morning deliberations were
clearly prejudicial.
Defendant freely concedes that Rule 606 generally
prohibits inquiry into the validity of jury verdicts through
admission of juror affidavits or testimony concerning "any
matter or statement occurring during the course of the
jury's deliberations or ... the effect of any thing upon
his or any other juror's mind or emotions as influencing him
to assent or dissent from the verdict or indictment or
concerning his mental processes in connection therewith."
We find that neither allegation contained in the Lamping
affidavit may serve as a basis for inquiry into the jury's
verdicts under any of the exceptions to Rule 606(b).
Recently, in State v. Elaxwell (Mont. 1982), 647 P.2d
348, 39 St.Rep. 1149, this Court emphasized that Rule 606(b)
is designed to insure the right to have a jury deliberation
in camera, free from 'frivolous and recurrent invasions of
that privacy by disappointed litigants . . . [and that]
[tlhe exceptions stated in [Rule 6061 . . . are exclusive
and are narrowly construed." 649 P.2d at 353, 39 St.Rep. at
1154 (emphasis added). Here, there are no allegations that
the alleged argument during jury deliberations about a "new
trial" and expedient verdicts were the result of outside
influence or pressure brought on the jury, such that
Subsection (b)(2) of Rule 606 would come into play and
permit introduction and consideration of the affidavit.
Moreover, the effect of lengthy deliberations on a juror's
physical, mental, or emotional condition and the subsequent
effect these conditions may have on the individual juror's
vote are, for the purpose of challenging the verdict, within
the general prohibition of Rule 606(b). See Maxwell, supra,
647 P.2d at 353, 39 St.Rep. at 1154, citing Mueller, Juror's
Impeachment of Verdicts and Indictments in Federal Court
Under Rule 606(b), 57 Neb.L.Rev. 920 (1978).
Given that the allegations contained in the Lamping
affidavit really go to internal deliberations involving no
outside pressure, Montana law does not support defendant's
motion for a new trial on grounds of jury misconduct. The
trial judge did not err in refusing to accept and consider
the af f idavi t. Indeed, the trial judge was quite
considerate of the jury's well-being as well as the
defendant's interests. According to the Minute Entries of
the District Court's file on the case, at 2:25 a.m. on June
17, 1983, the jury foreman advised the District Judge and
the parties of the jury's desire to continue deliberations.
No objections to continuation were voiced by any of the
jurors at that time. Later, upon delivery of the verdict,
the jury foreman indicated to the trial judge that there
were no dissenters to the verdicts.
 2. Sufficiency of the Evidence
Defendant's argument here is that the existence of
inconsistencies in the testimony of complaining witnesses
makes the evidence supporting conviction both insufficient
and incredible. Without question, great weight had to have
been placed on credibility of the witnesses. Nevertheless,
upon examining the record, including the testimony of
complaining witnesses, we find that the jury's determination
that defendant was guilty as charged is supportable.
The standard of review is whether the jury's verdict
is supported by substantial evidence. State v. Greenwell
(Mont. 1983), 670 P.2d 79, 82, 40 St.Rep. 1616, 1621. With
respect to the crucial matter of witness credibility,
" [tlhe jury is the sole judge . . .
[I]nconsistencies [in witness testimony]
do not make [the] testimony inherently
incredible. 'Only in those rare cases
where the story told is so inherently
improbable or so nullified by internal
self-contradictions that no fair-minded
person could believe it may we say that
no firm foundation exists for the verdict
based on it.'" Maxwell, supra, 647 P.2d
at 351, 39 St.Rep. at 1152 (citations
omitted).
A review of R. F.'s testimony does reveal some
difficulty in describing the nature of the assaults.
Nevertheless, this testimony does describe in fairly certain
terms two incidents of sexual assault, and a review of the
entire record indicates that these descriptions held up
under cross-examination. Defendant does not quote from
L.M.'s testimony, but maintains that it came about through
"heavily leading questions." Defense counsel maintains that
he objected to this line of testimony, but there is no
indication in the record that he did so. Moreover, the
testimony contains evidence that a sexual assault took
place. Finally, although M.'s testimony tends to vindicate
defendant, the testimony from Mary Peterson about M.'s prior
statements to her tends to establish that assaults were
committed .
Although defendant does not go beyond the testimony of
the three girls, the jury did hear important testimony from
other witnesses, and was entitled to consider and weigh this
testimony in conjunction with that of the complaining
witnesses:
(1) Dr. Elizabeth Gunderson, a defense witness,
informed the jury that, in her opinion, even though there
was no evidence of penetration of R. F., she believed that
the child had experienced sexual molestation. The
descriptions made by R. F. to Gunderson of the events
surrounding the molestation closely match the descriptions
given by R. F. during her testimony.
(2) Detectives Sam McCormack and Richard Hammerbacker
testified to remarks made by defendant during their only
interrogation of him. (Defendant was properly informed of
his Miranda rights and voluntarily signed a waiver.) The
remarks could have been construed as confessions by the
defendant:

"Q. [By Ms. Clemens] After he denied
having sexual intercourse, did you ask
any further questions?
"A. [McCormack] He said that all he did
was played around with them with the use
of some vaseline, and I again asked him
if he attempted to have sexual
intercourse with them, and he said,
'Well, yes, but - - I and at that time
stopped talking and asked for an
attorney.
 " 9 . [By Mr. McGrath] Could you tell the
jury in your own words what happened
[when you interrogated the defendant?]

"A. [Hammerbacker ] At this time
Detective McCormack, who is my partner,
advised Roger Anderson of his rights per
the Miranda decision and had him sign a
waiver of these rights. He, Detective
McCormack then asked Roger Anderson if he
had ever had sexual intercourse with any
of the young girls, and I was standing
behind Roger Anderson, and I heard him
answer Detective McCormack, he said, 'No.
I did fool around,' or 'We did fool
around with some vaseline. '
"And then Detective McCormack asked him
if he had ever attempted sexual
intercourse, and Roger Anderson answered,
'Yes, but --I I recall that 'but,' and
then he said, '1'11 get an attorney and
get back to you.'" (Tr. 2 5 3 )
Neither statement was objected to by defense counsel,
although counsel did attempt to adduce testimony from the
officers in an attempt to challenge their interpretation of
defendant's remarks;
(3) Alice Morse, a social worker who works with
sexually abused children, testified about the possibility
that molested children may often deny that they have been
victimized by their parents, for fear of losing the security
of home life and love of the accused parent. Thus, the jury
could have believed that defendant's stepdaughter had
changed her story only out of love and respect for the
defendant.
(4) Penny Say, the restitution officer involved in
R. F.'s previous problem with juvenile authorities,
indicated that she likely had no motive to punish defendant
for his role in bringing her to Say and other authorities
for her previous offenses.
 In conclusion, the evidence, when considered in its

entirety, is both sufficient in quantity and quality to
sustain the jury's verdicts.

WHETHER THE DISTRICT COURT ERRED IN REFUSING TO GIVE THE

SMITH JURY INSTRUCTION, WHICH PROVIDES THAT ALLEGATIONS OF
SEXUAL CRIMES ARE "EASILY MADE BUT DIFFICULT TO REFUTE?"
-
Defendant wanted the jury to be instructed that "the
charge of sexual assault is easily made and difficult to
refute." This is a variant of the cautionary instruction
determined by this Court in State v. Smith (1980), 609 P.2d
696, 37 St.Rep. 583, to be mandatory when victim animus
toward defendant is shown - where there is an absence of
and
critical testimony corroborating the charges. The trial
court refused to give the instruction.
We note initially that Smith has recently been
overruled on grounds that cautionary instructions like the
one requested in the immediate case are an improper comment
on the evidence and are not required by law or public
policy. See State v. Liddell, No. 83-276. Nevertheless,
even if we assume that Smith-type instructions were lawful
at the time of trial, the court did not err by refusing to
give one in the instant case.
Our past decisions emphasize that Smith-type
instructions were proper only in exceptional circumstances.
Victim animus, for example, had to be demonstrated by proof
of malice or vengeance on the part of the victim. See
Smith, supra. See also State v. Mackie (Mont. 1981), 622
P.2d 673, 676, 38 St.Rep. 86, 91, an opinion authored by the
trial judge presiding in the immediate case. M.'s testimony
tended to vindicate defendant. R. F.'s and L. M. Is
testimony was obviously damaging, but the trial court found
no evidence in their statements of "manifest malice or
motive for revenge," Mackie, supra, 622 P.2d at 676, 38
St.Rep. at 91. Moreover, any retaliatory motive on R. F 1 s
part appears to be a "strawman," primarily because the
criminal investigation leading up to the charges began
through L. M.'s mother's independent questioning of her
daugher .
Insofar as the presence of corroborative evidence is
concerned, the jury heard the testimony of the detectives
regarding defendant's "confession." His references to the
use of vaseline, for example, are corrobarative of at least
one aspect of the victims1 testimony regarding the nature of
the sexual assaults. In any event, the giving of the Smith
instruction required proof of both victim animus - lack of
and
corroborative testimony. Under the circumstances, the trial
court acted properly in denying the instruction.
The conviction is affirmed.

We concur:

Chief Justice
~:,&J
Mr. Justice Frank B. Morrison, Jr. dissents as follows:
There are several close evidentiary questions in this
case. The trial court gave careful attention to the
arguments of counsel and where at all possible I believe this
Court should defer to the discretion of the trial court when
discretion can be legitimately engaged.
I must dissent with respect to one evidentiary ruling
which was clearly erroneous. R.F.'s charge against Bratcher
was dismissed and I do agree with the majority opinion that
such dismissal, standing by itself, does not show the charges
were demonstrably false. I also agree that the charges may
have been dismissed. at the insistence of complainant's mother
because the mother did not want R.F. to experience the trauma
of trial. Again, this does not show the charges were false.
The majority opinion then goes on to gloss over the
critical issue with respect to the admissibility of R.F.'s
charges against Bratcher. The majority states:
"Similarly, the existence of medical testimony in
the instant case that R.F. had never experienced
intercourse does not prove the falsity of the prior
charges. Bratcher had been charged with sexual
assault, not sexual intercourse without consent,
and R.F. 's equivocal statements about what she had
experienced are not probative of the truth or
falsity of the charge against Bratcher."
This statement may seem innocuous when read casually.
However, the statement is misleading because R.F.'s charges
against Bratcher were not equivocal statements. Additionally,
the majority opinion fails to specifically address the real
issue because defendant's position cannot be persuasively
answered.
The facts here are simple. R. F ., the complainant
zgainst Roger Anderson, had previously charged one Bratcher
with sexual assault. Her complaint against Bratcher stated
that Bratcher had engaged her in numerous acts of sexual
intercourse. The medical testimony established that R.F. had
never had sexual intercourse. Defendant sought to introduce
the false charges R.F. made against Bratcher to demonstrate
that R.F. was lacking in credibility. The evidence would
have prejudiced R.F. but was so probative on the issue of
R.F.'s credibility that the trial court clearly committed
error in denying admission of the evidence.
The majority, without ever telling us what charges R.F.
made against Bratcher, simply pa.sses them off as "equivocal
statements." In all fairness I must set forth at least one
of these "equivocal statements" as illustrative to show that
R.F.'s previous charges against Bratcher were demonstrably
false and were admissible in the trial of Roger Anderson. In
chambers, during argument on the admissibility of this
evidence, defense counsel presented to the trial court the
following excerpt from R.F.'s statement against Bratcher. She
was being interrogated by law enforcement. She was asked:
"Let's go back to this apartment by your
grandmother's now. When he asked you to go into
the apartment, exactly what happened the ,-ast
time?"
R.F. responded:
"We got on and he stuck his thing in me."
The medical evidence clearly showed R.F. was previously
chaste. Her charge against Bratcher was demonstrably false.
The evidence should have been admitted to impeach her
credibility.
I do not feel that any one justice always knows the

right answer. In fact, most of the questions presented to
this Court are close questions which do not compel a certain
resolution. Although a dissenting justice may feel strongly
the majority has gone astray, judicial lectures not necessary
to issue resolution are inappropriate and should be avoided.
 Having filed this judicial caveat, I feel compelled here
to disregard my own admonition. The majority of this Court
has become far too "result oriented" in deciding criminal
cases. Significant evidentiary and constitutional errors are
avoided as the majority expeditiously moves to affirm the
conviction. State v. McKenzie (1981) 38 St.Rep. 1745; State
v. Arrow Weinberger (1983) 40 St.Rep. 844; State v. Gratzer
(1984) 41 St.Rep. 727; State v. Sigler (1984) St.Rep.

I do not believe the majority is pandering to the
editors and commentators who believe the courts are
hypertechnical, or to the majority's "law and order"
constituency. Rather I believe my brothers who avoid pivotal
issue confrontation do so because of a subconscious desire to
see the "guilty" pay for their misdeeds. The temptation to
so yield is, at times, almost irresistible. However, as
justices sworn to uphold the Constitution and the laws of
this State, we cannot afford the luxury of indulging our
sense of justice. Justice is for juries. Our role is to see
that the law is properly applied. The present inclination to
do justice arises from a sense of judicial divinity and the
result is to elevate seven philosopher kings to a position
above the law.
Members of our Court have, by way of dissent, been
termed "intellectually dishonest." I find that expression
inappropriate to adequately impart the intensity of my

opposition to what seems a clear abrogation of judicial
responsibility. Even though the majority has undoubtedly
acted in good faith, failure to fully and accurately present
the record and discuss the legal issues is, in my opinion, in
derogation of the constitutional responsibilities of this
office.
Mr. Justice John C. Sheehy, dissenting:

I dissent on at least two grounds.
First, I do not agree that the District Court properly
excluded evidence of the changing theories of the crime
committed, as shown by the amendments to the i~formation.
This conviction depend.ed on the credibility of the State's
witnesses. The amendments tend to show the inconsistency of
the facts being reported to the State by these witnesses. If
the variance in the reports being given to the State by the
witnesses are of such gravity that the State must withdraw
some criminal charges and insert others in their place, the
jury in its search for truth should be allowed to know that.
Second, I want to disagree with the majority handling of
the Smith instruction, although I agree the instruction was
not appropriate in this case. The majority, though, relies
on State v. Liddel-I (No. 83-276, Montana Supreme Court,
decided July 10, 1984), for the proposition that the Smith
instruction is improper. The Smith instruction was not
raised as an issue by the defendant in Liddell; this Court
gratuitously undertook to wipe it out. Here the principle of
Smith does not apply. There is no victim malice involved and
there is corroborative testimony.

Justice

r4r.Justice Daniel J. Shea dissents and will file a written
dissent later.