No. 84-414
I N THE SUPREME COURT O THE STATE O M N A A
F F OTN
1985
STATE O MONTANA,
F
P l a i n t i 3 f and R e s p o n d e n t ,
-vs-
STEVEN J. BERG,
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e Sixteenth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f C u s t e r ,
The H o n o r a b l e A. B. M a r t i n , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
Moses Law Firm; Bruce E . B e c k e r , B i l l i n g s , Montana
F o r Respondent :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
K e i t h Haker, County A t t o r n e y , M i l e s C i t y , Montana
S u b m i t t e d on B r i e f s : Jan. 2 4 , 1985
Decided: A p r i l 11, 1985
Filed:
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
The appellant, Steven Berg, was charged by information
with committing the crime of sexual assault, a felony because
the a1.l.eged victim was less than 16 years old and the
appellant was 3 or more years older. Section 45-5-502, MCA.
A jury trial resulted in a conviction, a new trial was
denied, and the appellant was sentenced to seven years in
Montana State Prison with the last two yea.rs suspended. This
appeal followed.
We reverse and remand.
The appellant was charged with sexually assaulting a
juvenile girl who was bahysitting at the home of another by
kissing her and removing some of her clothes. According to
the girl's testimony, she fled to a bathroom, the appellant
followed and upon pushing the bathroom door open knocked her
to the floor. She struck her head and was rendered
unconscious. Upon awakening she was naked and he was on top
of her.
Three issues are presented for review:
1. Whether the District Court erred in allowing a
certain witness to testify as an expert under Rule 702,
M0nt.R.Evi.d.
2. Whether the District Court erred in striking the
testimony of a certain witness because the witness was an
a l i b i witness and the defense did not give the prosecution
the required notice of intent to rely on alibi witness
testimony under S 46-15-301(2), MCA.
3. Whether the District Court erred in all-owing a
witness to testify as to prior crimes, wrongs, or acts under
Rule 404(b), Mont.R.Evid., without notice to the defendant of
intent to use such evidence as required by State v. Just
(1979), 184 Mont. 262, 274, 602 P.2d 957, 963-964.
The appellant argues that the District Court erred in
allowing a certain witness to testify as an expert when the
witness was not qualified. The appellant also argues that
the District Court erred in allowing the jury to determine if
the witness was qualified as an expert.
A witness may be qualified as an expert by knowledge,
skill, experience, training, or education. Rule 702,
Mont.R.Evid. The determination that a witness is an expert
is largely within the discretion of the trial judge and such
determination will not be disturbed on appeal absent a
showing of abuse of this discretion. Goodnough v. State
(Mont. 1982), 647 P.2d 364, 369, 39 St.Rep. 1170, 1175. Here
we find that the witness was qualified as an expert. She was
educated, trained, and experienced in a relevant area. She
testified that the juvenile fit within the statistical
picture of children who had been sexually assaulted. She had
counseled the juvenile for some time, she was a certified
psychol.ogist, she had a d.octorate in psychology, and she had
training and experience.
The appellant claims that the District Court erred in
leaving the qualification of the expert to the jury for
determination. We disagree. After the appellant had
objected that the witness was not qualified the court stated,
"Well, the court is going to permit her to testify. If the
jury doesn't believe she is qualified--well that will be up
to the jury to decide." We find that the District Court made
the determination that the witness was qualified when it
permitted the witness to testify. The District Court stated
afterwards that the jury coul-d determine the degree of the
witness's qual-ification as an expert and weigh the testimony
accordingly. This is proper. The degree of a witness's
qualification affects the weight rather than the
admissibility of the testimony. Little v. Grizzly Mfg.
(Mont. 1981), 636 P.2d 839, 843, 38 St.Rep. 1994, 2000. We
hold that the District Court d i d not err in allowing this
witness to testify.
The appellant next raises the issue whether the District
Court erred in striking the testimony of an alibi witness
when the defense did not give the State the required notice
of intent to rely on an alibi defense. If a defendant
intends to interpose an alibi defense the defendant shall
notify the prosecution of such intent and include the
identity of the witness to be called in support thereof.
Section 46-15-301(2), MCA. We find that no notice was given
in this case.
Here, though, the question turns on whether the witness
was actually an alibi witness. The appellant argues that the
witness did not give alibi testimony because the time period
covered by the witness testimony did not cover the time
established for the actual crime. The State argues that the
testimony was alibi in nature even though it concerned a time
prior to the time established for the actual crime.
An alibi is a d-efense that places the defendant at the
relevant time in a different place than the scene involved
and so removed therefrom as to render it impossible for the
defendant to be the guilty party. Black's Law Dictionary 66
(5th ed. 1979). We find that this witness did not testify as
an alibi witness. The witness testified that he was with the
appella-nt from approximately 7:30 p.m. to 8:10 p.m. on the
evening that the babysitter said she was assau!-ted. The
appellant admits that he went to the house at approximately
8:lO. This testimony also is consistent with the juvenile
baby sitter's own version of the time period involved in the
actual crime. The testimony by defendants witness did not
place the appellant at the relevant time in a different place
than the scene involved and so removed therefrcm as to render
it impossible for the appellant to be the guilty party. Here
the victim and defendant acknowledge that they were both in
the house at approximately 8:10 p.m. Their version of what
occurred differs. The excluded testimony, was not alibi
testimony. However, the testimony by this witness was not
relevant, and j t was therefore within the discretion of the
.
court to strike it.
The appellant next argues that the District Court erred
in allowing a certain witness to testify as to a prior crime,
wrong, or act. The witness testified that the appellant had
kissed her on a prior occasion despite her resistance. The
prosecution did not give the defense the required notice of
intent to use such evidence. In a criminal case if the State
intends to introduce evidence of other crimes, wrongs, or
acts for the limited purposes for which such evidence may be
allowed under Rule 404(b), Mont.R.Evid., the State must
notify the defendant of such intent and identify the purpose
for which the evidence will be introduced. State v. Just
(1979), 184 Mont. 262, 274, 602 P.2d 957, 963-964. We find
that the State did not supply the appellant with the
requisite notification.
In this case the Just rule applies and failure to give
the defendant the requisite notice of the State's intention
to use a witness to an act that occurred prior to the crime
is reversible error. The defendant is entitled to a new
trial-. The Just rule enables the District Court to ensure
that evidence of prior crimes, wrongs, or acts will only be
used for the allowable purposes and not to establish that the
accused acted in conformity with those prior a-ctions on the
present occasion. The Just rule also allows the defendant
time to prepare a defense to crimes, wrongs, or acts for
which he has not been charged.
Reversed and remanded for a n
We Concur:
/
Justices