State v. DBS

No. 84-314
IN THE SUPREME COURT OF THE STATE OF MONTANA

1985

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-

D. B. S.
Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable James 31. Salansky, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
K. M. Bridenstine argued, Polson, Montana

For Respondent:

Mike Greely, Attorney General, Helena, >lantana
Joe Roberts argued, Asst. Atty. General, Helena
Ted 0 . Lympus, County Attorney, Kalispell, Montana

submitted: March 21, 1985
Decided: May 28, 1 9 8 5

Filed:

Clerk
Mr. Justice John C. Harrison delivered the Opinion of the
Court.
The defendant appeals from a conviction of incest with
his natural-born daughter following a jury trial in the
District Court of Flathead County, State of Montana.
The victim was born on December 6, 1979, to the
defendant and K.H. who establised a common-law marriage. In
September of 1982, K.H. petitioned for dissolution of
marriage. Between the approximate dates of September, 1982
and May of 1-983,the victim was in the custody of her father,
the defendant. During this time, her mother, K.H. worked out
of state. In May of 1983, K.H. returned to Montana and began
exercising a two week visitation with the victim. The
defendant and K.H. had discussed modifying the divorce decree
to provide for joint custody.
On October 27, 1983, while K.H. was driving the victim
to a day care facility, the victim related to her the facts
which formed the basis of the charge. Later, the victim
related substantially the same story to Tom Best of the
Family Court Services Department, Maxine Lamb of the Flathead
County Sheriff's Office and Ann Anderson of the Flathead
County Welfare Department.
An information charging the defendant with the offense
of incest, a felony, was filed on December 12, 1983. The
defendant entered a plea of not guilty and filed a motion to
dismiss the information for lack of specificity as to the
date of the alleged crime. On February 6, 1984, the
defendant filed a motion in limine to suppress the testimony
of the alleged victim. The court denied both motions by
consolidated order dated February 27, 1984. On March 2,
1984, following a hearing on the child's competency, the
D i s t r i c t C o u r t concluded that t h e v i c t i m was q u a l i f i e d to

serve a s a witness.

A jury t r i a l was h e l d on March 5 , 1984. A t the t r i a l ,

the victim testified and demonstrated the incident by

r e f e r e n c e t o male and female a n a t o m i c a l d o l l s . The v i c t i m

s t a t e d t h a t h e r f a t h e r had "made me suck on h i s weenie" and

that "cream" had come o u t o f h e r f a t h e r and went i n t o h e r

mouth. The v i c t i m was n o t p r e c i s e a s t o t h e t i m e of the

i n c i d e n t , b u t t e s t i f i e d i t o c c u r r e d i n h e r f a t h e r ' s bedroom

i n t h e r a n c h house.

At the trial, the defendant denied committing the

felony. Robert Evans, a p r i v a t e i n v e s t i g a t o r , t e s t i f i e d t h a t

he had looked i n t o defendant's background and t h e current

case. Evans testified t h a t he b e l i e v e d t h e d e f e n d a n t was

being t r u t h f u l . Three women a c q u a i n t a n c e s o f t h e d e f e n d a n t

also testified to the defendant's general character and

reputation in the community. The f i n a l witness, Dr. Paul

Wert, a c l i n i c a l p s y c h o l o g i s t from Spokane, who examined t h e

defendant stated that defendant did not exhibit the

c h a r a c t e r i s t i c s of a sex offender.

The d e f e n d a n t was c o n v i c t e d and sentenced. t o e i g h t y e a r s

imprisonment w i t h f o u r y e a r s suspended.

The f o l l o w i n g i s s u e s a r e r a i s e d on a p p e a l :

(1) Whether the court erred by denying defendant's

motion to dismiss the information for lack of rea.sonably

s p e c i f i c d a t e when t h e o f f e n s e a l l e g e d t h e r e i n was t o have

occurred.

( 2 ) Whether t h e r e was i n s u f f i c i e n t e v i d e n c e produced a t

t r i a l t o support t h e g u i l t y v e r d i c t .
 (3) Whether the court erred by denying defendant's
motion for mistrial predicated upon prejudicial prosecutorial
misconduct.
(4) Whether the presentence report was properly used by
the court.
As a basis for his appeal, defendant contends that the
State did not prove with sufficient specificity the date the
crime was committed. The information indicated a ten month
period, January 1, 1983 to October 28, 1983, during which the
offense was to have occurred. The defendant maintains the
lack of specificity as to the date in the information
prevents him from being able to properly prepare a defen, or
=e
to assert an affirmative defense. The defendant further
maintains that lack of specificity abrogates his protection
from double jeopardy. Specifically, he argues that the broad
time frame could conceivably subject him to being prosecuted
at a later date for the same offense.
The defendant primarily relies on a Pennsylvania Supreme
Court decision where a conviction of an offense committed
within a fourteen month period was reversed. Commonwealth v.
Devlin (Pa. 1 9 7 5 ) , 333 A.2d 888. The court noted the
importance of establishing a date the offense was committed
so as to enable the defendant to know what dates he must
cover if his defense is an alibi. We find this Pennsylvania
decision inapposite to the facts of the instant case. Here,
it would have been an impossible burden for the defendant to
offer an alibi for a ten month period while he had custody of
the victim.
The State maintains defendant's argument misconceives
the purpose of an information. The State argues the primary
purpose of an information is to give general notice to the
defendant of the charge against him. We agree.
We find the information sufficient. The statute which
guides us in this inquiry is section 46-11-401 (1)(c)(iv),
MCA, which states as follows: "a charge shall . .. charge
the commission of an offense by . . . stating the time and
place of the offense as definitely as can be done. "
- - -
(Emphasis added.) The statute does not require the exact
time, date, month or even year to be specified.
The State cites to a recent decision rendered by this
Court involving sexual abuse of a child. In State v. Clark
(Mont. 1984), 682 P.2d 1339, 41 St.Rep. 833, the victim was a
twelve-year old, repeatedly raped by her step-father over a
ten-month period. In upholding the sufficiency of the
information, this Court stated, "The law does not, however,
demand impossible precision." State v. Clark, 682 P.2d at
1343. In Clark, this Court provided a standard to judge
whether the information states the time of the alleged
offenses with sufficient particularity: " ... (1) whether
time is a 'material ingredient in the offense,' and (2)
whether a continuing course of conduct is alleged."
In applying this standard we find the following: The
defendant argues that he had a right to assert an affirmative
defense and was prevented from doing so by the fact that
there was a ten month span to consider. The affirmative
defenses available to the defendant are enumerated in section
46-15-301, (2)(a), MCA. It appears that the defense of alibi

is the only one which could apply to this charge. It would
have been a futile gesture for the defendant to have offered
an alibi for a period of time the defendant had custody of
the victim. Moreover, in Clark, this Court rejected
defendant's argument that notice of an alibi defense made
time a material ingredient in the offense. State v. Clark,
683 P.2d at 1345. Thereby the first test of Clark is
satisfied.
In regard to the "continuing course of conduct" element,
we have recognized that when a continuing course of conduct
is alleged, further specificity is not required. State v.
Riley (Mont. 1982), 649 P.2d 1273, 39 St.Rep. 1491. In Riley,
an information alleging a continuing course of abusive
conduct over a two year period culminating with the victim's
death was upheld. In the present matter, the record shows
and the information alleges a single act of incest during the
ten-month period. Because a single act of incest was alleged
and was not of a continuing nature, this alone, does not
affect the sufficiency of the information.
The State notes courts from other jurisdictions are
stongly in accord with Clark. In People v. King
(Colo.Ct.App. 1978), 581 P.2d 739, the court allowed a charge
"from July 1, 1976 to January 10, 1977," stating the specific
date of the offense was not a material allegation in
prosecution for sexual assault on a child. The Kansas
Supreme Court ruled the allegations of child abuse and
torture were as specific as possible under the circumstances.
People v. Wonser (Kan. 1972), 537 P.2d 197; State v. Fahy
(Kan. 1968), 440 P.2d 566; State v. Kilpatrick (Kan. Ct. App.
1978), 578 P.2d 1147. In California the court said the
precise time of the crime is not required in criminal
pleadings. It is sufficient if it alleges any time before
filing of the information, except where time is a material
ingredient of the offense. People v. Wrigley (Cal. 19681,
443 P.2d 580. In Idaho, an information stating "May and June
1976" was held sufficient in a charge of sexual abuse. State
v. Roberts (Idaho 1980), 610 P.2d 558. We believe that Clark
states the applicable rule of law.
In this case of incest, a four-year old child was the
victim. The prosecutor was hand.icapped from the outset of
the case in obtaining specific information about the offense.
We should recognize that children, particularly four-year
olds a.re not governed by the clock and calendar as adults
are. They are generally at a loss to apply times or dates to
significant events in their lives. "Children are less likely
to distinguish dates and time with specificity." State v.
Clark, 682 P.2d at 1344. The fact that the victim cannot set
a date for the crime should not be fatal to the State's case,
thus making the defendant virtually immune from prosecution.
Finally, defendant's contention that the broad time
frame alleged in the information subjects him to double
jeopardy is without merit. The State is barred by Article
11, Section 25 of the Montana Constitution from retrying the
defendant for the offense to this particular victim during
the time in question. We hold the defendant was not
prejudiced by the inability of the State to be more specific
as to the date of the alleged offense.
The second issue raised by the defendant concerns the
competency of the victim. Defendant filed a motion in limine
to suppress the testimony based on the competency of the
child to testify. A hearing on the motion was held. The
District Court judge thoroughly questioned the victim.
Counsel also examined the child. The District Court
concluded that the child was competent to testify. The
District Court made the following findings of fact:
 "1. That [the victim] knows the
differnce between oath and falsehood.
"2. That she has the present
understanding of the obligation and
necessity to tell the truth.
"3. That she appreciates that she will
be punished for telling a falsehood in
Court.
"4. That she has the ability to respond
to simple questions about the occurrence.
"5. That she had mental capacity at the
time of the occurrence to observe and.
register the observance.
"6. That she has the memory sufficient
to retain an independent recollection of
the occurrence."
The defendant argues that the victim lacked the
qualifications of competency as a witness in that:
(i) she could not understand nor appreciate the oath;
(ii) her testimony was inconsistent, contradictory and
not clear a.nd convincing; and
(iii) that she had no real independent recollection of
the event charged in the information.
Based on the foregoing, the defendant urges the
evidence adduced at trial was insufficient to support a
guilty verdict.
The State maintains that State v. Rogers (Mont. 1984),
692 P.2d 2, 41 St.Rep. 2131, is controlling. In Rogers we
found a four-year old sexual assault victim competent to
testify. This Court noted "whether a child is a competent
witness is a determination left largely to the discretion of
the trial court." Rogers, 41 St.Rep. at 2135, citing State v.
Campbell (1978), 176 Mont. 525, 579 P.2d 1231. However, one
distinction between Rogers and the instant case is in order.
In Rogers, the four-year old's testimony was consistent with
the testimony of the examining physician and other witnesses.
Here, the four-year old victim was the principal witness for
the State. The mother was the only other witness who offered
corroborating testimony. The defendant urges out of
vindictiveness toward the defendant, K.H. induced and
influenced the child's testimony in order to frame the
defendant. A similar allegation was raised in a recent case,
State v. Phelps (Mont. 1985), 696 P.2d 447, 42 St.Rep. 305.
In Phelps the defendant alleged a five-year old was coached
into testifying. We upheld the lower court's determination
that a five-year old boy was competent to be a witness in a
sexual abuse case. We noted although inconsistencies exist
in the child's perception of where he was, it did not affect
his competency.
Rule 601, Montana Rules of Evidence provides the
standards governing competency of a witness:
"Rule 601. Competency in general;
" (a) General rule competency. Every
person is competent to be a witness
except as otherwise provided in these
rules.
" (b) Disqualification of witnesses. A
person is disqualified to be a witness if
the court finds that (1) the witness is
incapable of expressing himself
concerning the matter so as to be
understood by the judge and jury either
directly or through interpretation by one
who can understand him or (2) the witness
is incapable of understanding the duty of
a witness to tell the truth."
In Phelps, supra, 42 St.Rep. at 312, we examined this rule,
and stated, "Competence is determined by capacity of
expression and appreciation of the duty to tell the truth."
In the present case, defense counsel inquired into the
victim's ability to understand the meaning of the oath:
"Q. [By Mr. Bridenstinel Do you know
who God is?
"A. [the victim] (Nods head)
 "a. Who is God?
"A. He goes in everything and he lives
in your heart. You can feel him.
"Q. Do you know who the Devil is?
.
%
I (Shakes head)
"Q. Satan. Have you ever heard that
word before?
"A. No.
"Q. How about Jesus?
"A. Yes.
"Q. Who is Jesus?
"A. He is a friend of God. God don't
have a face. He is on everything."
Furthermore, the child was directly questioned as to the
truthfulness of her testimony:
"MR. PREZEAU: And did we tell you what
to say or did we tell you to say the
truth?
"THE WITNESS: You told me to say the
truth.
"MR. PREZEAU: Did your mommy tell you
what to say or did she tell you to say
the truth?
"THE WITNESS: She told me to say the
truth.
"MR. PREZEAU: Thank you, [the victim's
.
name ] 'I
The foregoing colloquy disposes of the defendant's
contention that the victim's testimony was induced by K.H.
The victim's testimony clearly illustrates her capacity to
appreciate the duty to tell the truth. The fact that there
were no other witnesses to the alleged incestuous act was not
in the child's control. Such a circumstance must not
undermine a determination of competency.
Moreover, Rule 601, Montana Rules of Evidence, which
defines the competency of a witness, has no age requirement.
State v. Rogers (Mont. 1984), 692 P.2d 2, 41 St.Rep. 2134;
State v. Smith (Mont. 1984), 676 P.2d 185, 41 St.Rep. 176;
State v. Campbell (1978), 176 Mont. 525, 579 P.2d 1231. The
record clearly shows that the victim was capable of
expressing herself. She did so verbally as well as by
demonstration with anatomical dolls. Her ability to serve as
a competent witness not only convinced the trial judge, as
evinced by the findings of fact and conclusions, but also
members of the jury. We hold this case should remain in
accord with this Court's precedent that questions of
competency is a determination left largely to the discretion
of the trial court. State v. Phelps (Mont. 1985) , 696 P.2d
447, 42 St.Rep. 305; State v. Rogers (Mont. 1984), 692 P.2d
2, 41 St.Rep. 2131; State v. Campbell (1978), 176 Mont. 525,
579 P.2d 1231.
The District Court's instruction to the jury prior to
the victim's testimony that: "a determination of the
competency of the witness had been made and that the
credibility of her testimony rests with the province of the
jury," was given to inform the jury as to the qualification
of the victim as a witness. We hold the instruction properly
left the weight of the evidence within the province of the
jury.
The defendant next claims the State's cross-examination
of defendant's character witnesses was improper and
constituted grounds for a mistrial.
The defendant's character witness was a private
investigator named Robert Evans. On direct examination,
Evans testified that he had investigated the background of
the defendant and the charges against him. In substance, he
testified that he contacted over twenty people and spent more
than fifty-six hours in the course of the investigation; that
the defendant told the truth regarding the charges; that no
information would substantiate that the defendant committed
the alleged offense; and that each person contacted was
supportive of the defendant.
With regard to the opinions expressed by witness Evans
on direct examination, the State cross-examined him as
follows:
"Q. Well, sir, you put 56 hours in this
case. I want to know if you knew who
your client is. You said he is so honest
with you. Did he tell you those things?
"A. I didn't ask him those questions,
sir.
"Q. Well, did you investigate his past
at all?
"A. We did. investigate one alleged
offense, and it came back negative.
"Q. What alleged offense was that?
"A. He said he had had some difficulty
in Afton, Wyoming. It came back negative
from that office.
"Q. And did you talk to the parents of
that alleged victim, M. R.?
"A. Why should I talk to somebody when
it came back from the official record,
said, 'We have no record, no offense.'
"Q. Well, a lot of times charges don't
get filed, don't you think?
"A. I am not in the business of filing
charges, sir. I don't know what the
decisions are of whether they do or do
not. I only go by what the official
record is that came to me under the name
that I was given and the birthdate I was
given. "
Defendant contends the cross-examination by the State of
alleged prior acts or crimes was contrary to Rule 404(b),
Montana Rules of Evidence. The defendant further submits
that the admission of the witness' statements were
prejudicial and could not be cured by striking the
objectionab1.e portion of the testimony citing State v.
Cassagranda (Mont. 1981), 637 P.2d 826, 38 St.Rep. 2127;
State v. Tiedemann (1961), 139 Mont. 237, 362 P.2d 531.
The State argues that the defendant's reliance on Rule
404(b) is inappropriate. This is not a case where a State
introduced evidence of "other crimes" in its case-in-chief.
But rather, the State maintains, the defendant placed his
character at issue by allowing Robert Evans to testify as to
the defendant's reputation. Therefore, the correct reference
is to Rule 404 (a), Montana Rules of Evidence pertaining to
the character of the accused. Citing to State v. Heine
(1976), 169 Mont. 25, 544 P.2d 1212, the State submits when
the accused calls a witness to support his good reputation,
he opens the door to all legitimate cross-examination of that
witness. We agree.
The admissibility of character evidence is governed by
Rule 404(a) (I), Montana Rules of Evidence:
"Rule 404. Character evidence not
admissible to prove conduct, exceptions;
other crimes; character in issue.
" (a) Character evidence generally.
Evidence of a person's character or a
trait of his character is not admissible
for the purpose of proving that he acted
in conformity therewith on a particular
occasion, except:
(1) Character of accused. Evidence of a
pertinent trait of his character offered
by an accused, or by the prosecution to
rebut the same."
The method of proving the evidence of a pertinent trait
of the defendant's character is provided in Rule 405, Montana
Rules of Evidence, which states:
"Rule 405. Methods of proving character.
 (a) Reputation or opinion. In all cases
in which evidence of character or a trait
of character of a person is admissible,
proof may be made by testimony as to
reputation or by testimony in the form of
an opinion. On cross-examination,
inquiry is allowable into relevant
specific instances of conduct."
Defendant denied the incest allegation. As a result,
questions regarding defendant's character traits of
truthfulness, lack of prior crimes and the investigation of
defendant's background pertain to the key parts of his
defense. Moreover, defendant indicated in his opening
statement that defendant's witnesses would testify to his
reputation in the community for being an honest man and a
good parent who would not injure his child.
Evans testified at length and in detail as to the
defendant's character with particular emphasis on his
truthfulness and lack of criminal background. In State v.
Heine (1976), 169 Mont. 25, 544 P.2d 1212, we stated:
"When the accused calls a witness to
support his generally good reputation in
the community, he opens the door to all
legitimate cross-examination of that
witness and must therefore accept the
consequences which result. State v.
Moorman, 133 Mont. 148, 153, 321 P.2d
236; State v. Cor, 144 Mont. 323, 396
P.2d 86; State v. Turley, 164 Mont. 231,
521 P.2d 690."
The Commissioner's Comments to Rule 404 (a)(1), Montana
Rules of Evidence state:
"These cases also stand for the
proposition that the prosecution may
cross-examine the witnesses for the
accused concerning rumors or reports
concerning the reputation of the accused
which would rebut their good character
testimony and may cross-examine the
witnesses to determine the sufficiency of
grounds upon which they base their
testimony."
"It is a well settled rule that the proper scope of
cross-examination is determined by the scope of direct
testimony." State v. Clark (Mont. 1984), 682 P.2d 1339, 41
St.Rep. 833.
Evans on direct examination tesified that he had
thoroughly investigated the defendant and his background and
all information that would substantiate the charges in this
action. The prosecution then questioned Evans regarding any
other offenses of the defendant. The witness himself, first
referred to the molestation incident in Wyoming and not the
prosecution. It was only after Evans identified the
incident, did the prosecutor take hold of the opportunity to
reveal to the jury that Evans did not investigate the
defendant's background as thoroughly as he stated he had.
We hold the State's cross-examination falls within the
scope of Rule 404(a) of the Montana Rules of Evidence.
The other incident challenged by the defendant on appeal
involves the examination of defense witness Susie Sorenson.
Sorenson testified on direct to the relationship between the
victim and the defendant and as to the reputation of the
defendant in the community. During cross-examination, the
prosecution examined Sorenson regarding an investigation by
the Welfare Department of an alleged sexual molestation of
her daughter, inferring the defendant was involved.
The examination by the State amounted to overzealous
prosecution. Such conduct shall not be condoned. However,
we are satisfied that the defendant suffered no prejudice
under these circumstances. The District Court allowed Dr.
Wert, a clinical psychologist, to testify that the defendant
did not exhibit the characteristics of a sex offender. The
court allowed this testimony only because reference had been
made to the prior incident of sexual molestation.
Furthermore, the record reveals the defense counsel made
no objection to the examination of Sorenson by the State. We
have repeatedly held that we will not review a matter raised
for the first time on appeal. Peters v. Newkirk (Mont.
1981), 633 P.2d 1210, 38 St.Rep. 1526; Northern. Plains v.
Board of Natural Resources (1979), 181 Mont. 500, 594 P.2d

In view of the entire record, we find defendant's
allegations not only untimely, but also without prejudice.
The final issue raised by defendant, alleges prejudice
due to inaccuracies in the presentence investigation report.
The defendant objects to information obtained from:
(a) M.R. in Afton, Wyoming;
(b) K .H. , the mother of the victim; and

(c) K.H.'s parents, then living in phoenix, ~rizona.
The defendant contends the statements from these individuals
constituted hearsay and thereby tainted the report. Since
none of these persons were present in court at sentencing nor
amenable to defendant's subpoena, defendant submits, his
Sixth Amendment right was violated.
At the sentencing hearing defense counsel objected to
the presentence report 's reference to the molestation
incident in Wyoming. The District Court ruled:
". . .the Court will delete from the
presentence report and from the Court's
consideration in this case the references
on page 4 to a prior report of a possible
sexual molestation, and the Court will
delete that particular full paragraph
under paragraph 2 on page 4, and any
other references in the presentence
report to that particular situation."
An examination of the presentence report illustrates that the
incident was deleted.
Defendant's contention that hearsay taints the
presentence report is without merit. Section 46-18-112, MCA
authorizes a complete investigation into the background of
the defendant. The statute does not limit hearsay in a
presentence investigation. It would be contrary to the
purpose of such an investigation and report if it did.
The probation officer, Daniel Hoy, recommended that the
defendant be committed to the Montana State Prison for a term
of ten years with mandatory mental health and sex offender
therapy upon parole. Tom Best recommended that the defendant
receive mental health counseling and no imprisonment. The
defendant submits the District Court ' s reliance upon the
recommendation of the probation officer was in error.
The trial court sentenced the defendant to eight years
in prison with four suspended. The District Court's judgment
and sentence specified the reasons for the sentence imposed:
(1) that the crime committed against the victim was
serious and heinous;
(2) that he would not be receptive to direction under
supervision of a probation officer;
(3) that he does not have the frame of mind to accept
mental counseling or sexual therapy;
(4) that his past criminal record and social history
reveals conflict with the law and alienation and estrangement
from his family; and
(5) that he needs deterrent to refrain from committing
such offenses.
We find no merit to defendant's contention. Section
46-18-302, MCA, authorizes the sentencing judge to consider
the widest possible scope of inquiry when determining the
sentence to be imposed.
"In the sentencing hearing, evidence may
be presented as to any matter the court
considers relevant to the sentence,
including but not limited to the nature
and circumstances of the crime, the
defendant ' s character, background,
history, and mental and physical
condition, and any other facts in
aggravation or mitigation of the penalty.
Any evidence the court considers - - to have
robative fo r c e y s be received
:egardless - its admissibilTty under the
of
rules governing admission of evidence - at
criminal trials. ... " ~eytion
46-18-302, MCA (Emphasis supplied.)
We have spoken upon the sentencing judge's discretion to
use the presentence report in a recent Montana Supreme Court
decision. In State v. Smith (Mont. 1985), P.2d , 42
St.Rep. 463, this Court stated:
"At most, the report was merely an
additional factor the court was allowed
to consider when imposing the
sentence. . .We hold the presentence
report containing a sentencing
recommendation did not violate the
defendant's rights . . ."
In adopting this rule we examined a United States Supreme
Court decision, Williams v. New York (1949), 337 U.S. 241, 69
S.Ct. 1079, 93 L.Ed. 1337, in which the Court stated:
". . . highly relevant -- if not
essential -- to his selection of an
appropriate sentence is the possession of
the fullest information possible
concerning the defendant's life and
characteristics. And modern concepts
individualizing punishment have made it
all the more necessary that a sentencing
judge not be denied the opportunity to
obtain pertinent information by a
requirement of rigid adherence of
restrictive rules of evidence properly
applicable to the trial. ..[probation]
reports - - given a high value by
have been
contentious judges - - - to sentence
who want
Dersons on the best available information
L---
rather - -on guesswork and inadequate
than
information
 . . ." (Emphasis supplied.) Williams v.
New York (1949), 337 U.S. at 247-249.

We hold the presentence report was properly used by the
District Court when imposing the sentence.
Accordingly, the judgment of the District Court is

affirmed.
Mr. Justice Frank B. Morrison, Jr. specially concurring:

I concur specially for the reason that the majority

opinion does n o t adequately d i s c u s s t h e c r e d i b i l i t y of the

f o u r y e a r o l d c h i l d whose t e s t i m o n y c o m p r i s e s t h e e n t i r e c a s e

for the prosecution. I am o n l y agreeing t o the result

b e c a u s e o f my s t r o n g f e e l i n g f o r d e f e r e n c e t o a t r i a l j u d g e

in determining competency and my strong opposition to

appellate judges interfering with jury verdicts. However,

this child's testimony borders on being incompetent as a

m a t t e r o f law.

So that the record will be clear, I set forth the

following abstract of testimony from the t r a n s c r i p t which

shows the weak nature of the evidence upon which this

prosecution i s based. The f o l l o w i n g q u e s t i o n s and a n s w e r s

a r e t a k e n from t h e c h i l d ' s c r o s s - e x a m i n a t i o n :

"Q. Now, you s a i d t h a t y o u r f a t h e r made y o u , and
you s a i d t h i s , s u c k on h i s w e e n i e .

"A. Yes.

"Q. That i s n ' t t r u e , i s i t ?

"A. No."

On r e d i r e c t e x a m i n a t i o n t h i s t e s t i m o n y was g i v e n :

"Q. NOW, when M r . B r i d e n s t i n e -- you remember t h e
man who j u s t t a l k e d t o you?

"A. Yes.

llQ. The man w i t h t h e funny name. Remember?

"A. Yes.

"Q. Now, when you s a i d y o u r daddy d i d n ' t make you
d o t h a t , was t h a t t r u e o r was t h a t a l i e ?

"A. T h a t was a l i e .

"Q. Did y o u r daddy make you d o t h a t ?

"A. Yes. "

The following answer was followed by this

recross-examination:
 "0. [The victim's name], who told you to say that?
"A. My mom."
The defendant is a man 30 years of age who established a
common law marriage relationship with K. H., the woman
described by the child as "mom". The child was born December
6, 1979. The couple lived together with the child until
September, 1982, when they consented to a dissolution of
marriage in Flathead County, Montana. Following the
dissolution, K. H. left the state of Montana and the father
and the child lived together until May of 1983 when K. H.
returned to the area. She had not seen the child for
approximately nine months. The dissolution decree granted
parental custody of the child to the defendant subject to
visitation rights for the mother.
When the mother returned to the Kalispell area she
sought modification of the custody decree allowing her to
have custody for nine months of the year. The defendant
refused to agree. The defendant, on at least one occasion,
denied visitation rights to the mother because of her
intoxicated condition. The mother then reported to Tom Best
of Family Court Services that the child had told her about
this incident.
The defendant produced psychological testimony that
showed defendant was not capable of sexual abuse. The State
did not rebut the testimony.
There is strong motive for the mother to cause the
child's fabrication of this incident so the mother might
obtain custody. The child's testimony borders on being
incredible due to admissions made on cross-examination and
recross-examination.
 The l a w d o e s n o t r e q u i r e c o r r o b o r a t i o n i n t h e s e c a s e s .

P e r h a p s it s h o u l d . T h i s c a s e may w e l l r e p r e s e n t a t e r r i b l e

m i s c a r r i a g e of j u s t i c e . I concur s p e c i a l l y s o t h a t t h e f a c t s

w i l l b e p l a c e d upon t h e r e c o r