State v. Sanderson

TJo. 83-3558

I N THE SUPREME COURT O F THE STATE OF MONTANA

1984

STATE OF MONTANA,

P l a i n t i f f and R e s p o n d e n t ,

-vs-
KENT ALLEN SATJDERSON I

D e f e n d a n t and A p p e l l a n t .

APPEAL FROM: D i s t r i c t C o u r t of t h e T h i r t e e n t h 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 C o u n t y of C a r b o n ,
T h e H o n o r a b l e D i a n e G. B a r z , J u d g e p r e s i d i n g .

COUNSEL OF RECORD:

For A p p e l l a n t :

K i n n a r d & Woodward; V e r n Woodward argued,
B i l l i n g s , Montana

F o r Respondent :

M a r k M u r p h y argued, Special D e p u t y C o u n t y A t t y .
for C a r b o n C o u n t y & A s s t . A t t y . G e n e r a l , H e l e n a
C l a y S m i t h argued, A s s t . A t t o r n e y G e n e r a l , H e l e n a ,
Montana

ON REHEARING

Submitted: N o v e m b e r 21, 1 9 8 4

Decided: J a n u a r y 4 , 198&

Filed: 3kII 4

-- -
Clerk
:I. Justice J o h n Conway H a r r i s o n delivered the Opinion of
the Court.

Appellant, Kent Allen Sanderson, appeals from a

judgment on a j u r y verdict of g u i l t y of sexual intercourse

without consent. The Thirteenth Judicial District Court,

Carbon County, s e n t e n c e d him t o t e n y e a r s on t h e o n e c o u n t .

Ide a f f i r m .

W e h a n d e d down t h e o r i g i n a l Opinion in t h i s c a u s e on

November 9, 1984. S u b s e q u e n t l y a p e t i t i o n f o r r e h e a r i n g and

r e s p o n s e t o t h a t p e t i t i o n were f i l e d w i t h t h i s C o u r t . After

careful consideration, we have concluded that the Opinion

should be revised. A s a r e s u l t w e now w i t h d r a w t h e o r i g i n a l

O p i n i o n w h i c h was d e c i d e d November 8, 1984, and s u b s t i t u t e

therefor t h e following Opinion.

There a r e e s s e n t i a l l y t h r e e p a r t i e s involved in this

case: the defendant, the victim and the victim's best

friend. B e c a u s e t h e v i c t i m and h e r f r i e n d w e r e j u s t s i x t e e n

y e a r s of age a t t h e t i m e of t h e i n c i d e n t we s h a l l refer to

them b y t h e i r i n i t i a l s : K.D. and D.J. respectively.

K.D. b e g a n h e r m o r n i n g on March 2 9 , 1982, by d r i v i n g

h e r mother t o work a n d h e r y o u n g e r sister t o school. She

t h e n met h e r b e s t f r i e n d , D . J . , a n d t h e two o f them d e c i d e d

n o t t o a t t e n d c l a s s e s t h a t day. They w e r e b o t h j u n i o r s a t a

BiLlings high school. A d e c i s i o n was made t o d r i v e t o Red

Lodge w h e r e t h e y e x p e c t e d t o meet w i t h some f r i e n d s who h a d

gone skiing for t h e day. Around 10:0GI a.m. t h e two g i r l s

left Billings and proceeded east to Laurel on t h e freeway

a n d t h e n s o u t h t o w a r d Red Lodge. About f i v e m i l e s s o u t h o f

Laurel, t h e c a r b r o k e down and e v e n t u a l l y a van d r i v e n by

appellant Sanderson stopped. After examining the car and
trying unsuccessfully to start it, Sanderson offered the

g i r l s a ride into Laurel. T h e r e , h e s a i d , h e would a t t e m p t

t o l o c a t e a tow c h a i n s o t h e y c o u l d t o w t h e c a r i n t o t o w n .

S a n d e r s o n had o r i g i n a l l y intended t o cash a check in

L a u r e l s o t h e t r i o ' s f i r s t s t o p was a t a b a n k . From t h e r e

they drove to Adeline's C a f e where S a n d e r s o n met a friend

whom h e t h o u g h t m i g h t e i t h e r h a v e a c c e s s t o a t o w c h a i n o r

know where one might be found. According to Sanderson's

t e s t i m o n y i t was h e r e t h e g i r l s i n d i c a t e d t h e y w e r e s t u d e n t s

a t E a s t e r n Montana C o l l e g e .

The party stopped at the Suds Iiut, a local tavern,

where Sanderson bought a pitcher of beer. K.D. testified

that Sanderson t o l d h e r and D . J . if anyone asked them for

i d e n t i f i c a t i o n because of t h e b e e r t h e y should s a y t h e y were

college students but did not have any identification with

them. I t was K . D . ' s c o n t e n t i o n a t t r i a l t h a t S a n d e r s o n knew

s h e and U . J . were h i g h s c h o o l s t u d e n t s . Sanderson, on t h e

o t h e r hand, r e i t e r a t e d h i s b e l i e f t h a t t h e y were e i g h t e e n o r

n i n e t e e n y e a r s o l d and were c o l l e g e s t u d e n t s .

Everyone agreed that while a t the Suds Hut the

conversation turned t o drugs. K.D. testified that a fairly

lively conversation occurred between D.J. and Sanderson

c o n c e r n i n g t h e s a l e of marijuana. K.D. denied taking part

in t h a t conversation. D.J., however, s a i d b o t h s h e and K.D.

conversed with Sanderson about the possibility of selling

drugs. Sanderson's s t o r y is a b i t d i f f e r e n t . According t o

h i s testimony, K.D. t o l d him t h e y were n o t r e a l l y going t o

Red Lodge t o s k i b u t were g o i n g t o p i c k up some m e s c a l i n e .

S a n d e r s o n s a i d h e t o l d t h e g i r l s h e c o u l d g e t some m a r i j u a n a

f o r them t o s e l l and t h e y t o l d him t h e y c o u l d s e l l a p o u n d .
 Prom t h e S u d s Nut t h e t r i o w e n t a c r o s s t h e s t r e e t t o a

convenience store where Sanderson bought beer and wine.

They d r o v e from there to t h e Pa11n B e a c h Supper Club and,

according to Sanderson, they smoked two marijuana

cigarettes, or joints, on t h e way. The p u r p o s e o f t h e s t o p

at the supper c l u b was for Sanderson t o make a telephone

c a l l t o s e t up a d e a l t o o b t a i n a q u a n t i t y o f m a r i j u a n a f o r

the g i r l s to s e l l . The c o n t a c t , who worked a t a r a n c h , s a i d

h e h a d a s m a l l s a m p l e on h a n d .

Sanderson t e s t i f i e d t h a t a f t e r o b t a i n i n g a chain a t a

service station, they drove to the ranch where they were
given a one-half ounce bag o f marijuana to sample. Then,

Sanderson s a i d , they drove t o t h e g i r l ' s parked c a r .

Everyone a g r e e d t h a t once t h e y reached t h e parked c a r

they could not find a place t o hook t h e c h a i n . They were

able to start the car, however, and drove it a short

distance before it quit again. They d e c i d e d to leave it

parked alongside t h e road.

According t o S a n d e r s o n ' s t e s t i m o n y , a f t e r leaving the

s t a l l e d c a r t h e s e c o n d t i m e t h e y r e t u r n e d t o t h e Palm B e a c h

supper club. S i n c e i t was a p p r o x i m a t e l y 3:00 p.m., t h e time

they normally would return home from school, the girls

t h o u g h t t h e y s h o u l d c a l l home. S a n d e r s o n l o a n e d them money

to call. Now, Sanderson s a i d , t h e y drove t o t h e ranch and

obtained the pound of marijuana for the girls to sell.

Sanderson a l s o s t a t e d that i t s e e m e d t o him t h e g i r l s w e r e

more i n t e r e s t e d i n g e t t i n g t h e p o u n d o f m a r i j u a n a t h a n t h e y

w e r e i n g e t t i n g t h e i r c a r home.

Once t h e y h a d t h e m a r i j u a n a i n h a n d t h e t h r e e p a r t i e s

began t h e t r i p back t o L a u r e l . Sanderson t e s t i f i e d t h a t on
t h e way t o Laurel. h e p u l l e d o f f t h e r o a d a t a b r i c k h o u s e ,

later identified as the Donald Blackburn residence. He

t e s t i f i e d he stopped to talk to t h e g i r l s about when and

where h e c o u l d p i c k up t h e money t h e g i r l s would u l . t i m a t e l y

r e a l i z e from t h e s a l e of t h e m a r i j u a n a . Sanderson s a i d h e

emphasized the fact t o t h e g i r l s t h a t h e r e a l l y wanted t o

t r u s t them t o g e t t h e money f o r him s i n c e h e was g i v i n g t h e

m a r i j u a n a t o them on c r e d i t . He a l s o a d m i t t e d t e l l i n g them

if h e d i d n o t g e t t h e money b a c k f r o m them then somebody

e l s e would, a statement t h e g i r l s s a i d t h e y p e r c e i v e d a s a

threat. H e f u r t h e r a d m i t t e d a t t r i a l t h a t h e may h a v e b e e n

suggestive at this point in the conversation. Sanderson

i n s l s t s a t t h i s p o i n t K.D. a s k e d him i f s e x would h e l p him

t r u s t h e r f o r t h e pound o f m a r i j u a n a . He t e s t i f i e d s h e t h e n

t o o k h e r p a n t s o f f and had i n t e r c o u r s e w i t h him i n t h e b a c k

of t h e v a n , b u t o n l y o n c e . He s a i d D . J . was i n t h e f r o n t o f

t h e van during t h e a c t . Finally, Sanderson t e s t i f i e d that

he took the g i r l s t o Laurel and left them a t t h e S a f e w a y

store.

Tracing t h e g i r l s ' t e s t i m o n y from t h e p o i n t where t h e

second attempt to start the car was made, a somewhat

d i f f e r e n t account of events unfolds. K.D. testified that

after s h e and D.J. abandoned t h e c a r f o r t h e second t i m e ,

t h e y r e t u r n e d t o t h e Palm Beach s u p p e r c l u b w i t h S a n d e r s o n .

Both girls called their mothers with money borrowed from

Sanderson. S a n d e r s o n t o l d them h i s f a t h e r had a f i f t h - w h e e l

t r a i l e r t h a t h e m i g h t be a b l e t o b o r r o w t o u s e t o h a u l t h e

car i n t o town. The t r i o d r o v e from t h e s u p p e r c l u b t o a

spot along the river where they a l l smoked some m a r i j u a n a

b e f o r e p r o c e e d i n g t o t h e E l Rancho I n n . K.D. saw a c l o c k a t
t h a t l o c a t i o n a n d n o t i c e d i t was 5 3 3 0 p.m. Prom there the

t h r e e d r o v e t o t h e r a n c h a n d were u n s u c c e s s f u l in obtaining

the trailer. R e t u r n i n g from t h e r a n c h , K.D. s a i d Sanderson

p a r k e d t h e van i n a d r i v e w a y n e a r a b r i c k house and j u s t s a t

there for several minutes without talking. He then got into

t h e back of t h e van w i t h t h e g i r l s and t o l d t h e g i r l s t h e y

were g o i n g t o s e l l t h e m a r i j u a n a f o r him. They r e f u s e d , a n d

Sanderson grabbed D.J. and pushed her to the back o f the

van. K.D. tried t o g e t out of t h e van but was p r e v e n t e d

f r o m d o i n g s o when S a n d e r s o n g r a b b e d h e r arm a n d t w i s t e d i t

behind h e r back. K.D. said she continued t o t r y t o escape

b u t D.J. t o l d h e r t o s t o p f o r f e a r t h a t S a n d e r s o n would h u r t

them. D.J. also testified Sanderson kept saying he was

doing this to see if he could trust them. K.D. said

Sanderson pushed b o t h o f them t o t h e f l o o r of t h e van and

laid on top of both of them simultaneously. He began

k i s s i n g a n d f o n d l i n g D.J., b u t s t o p p e d when s h e t o l d him s h e

was m e n s t r u a t i n g . Sanderson then turned h i s attention to

K.. A c c o r d i n g t o K.D. I s account, Sanderson took her pants

off and h a d s e x u a l i n t e r c o u r s e w i t h h e r a n d t h e n g o t o f f o f

her, began kissing D.J. again and then had sexual

i n t e r c o u r s e w i t h K.D. f o r a s e c o n d time. After t h e second

act of sexual intercourse, Sanderson drove the girls to

B i l l i n g s a n d d r o p p e d them o f f a t t h e H o l i d a y I n n .

In their statements to authorities, t h e two g i r l s a t

f i r s t gave c o n f l i c t i n g s t o r i e s . K.D.'s s t o r y was b a s i c a l l y

a s r e l a t e d above. D.J., on t h e o t h e r h a n d , initially told

l a w e n f o r c e m e n t o f f i c e r s t h a t a t h i r d g i r l had accompanied

them t o L a u r e l . She l a t e r a d m i t t e d t h a t was a l i e d e s i g n e d

for the benefit of her parents. She had said the reason
t h e y went t o L a u r e l was t o g i v e t h e g i r l a r i d e home.

Appellant Sanderson p r e s e n t s the following i s s u e s on

appeal :

(1) Whether the District Court erred by denying

a p p e l l a n t ' s motion t o d i s m i s s f o r l a c k of a speedy t r i a l .

(2) Whether the District Court erred. by denying

a p p e l l a n t ' s motion t o p r o v i d e f o r a t t e n d a n c e o f a w i t n e s s .

(3) Whether the District Court committed reversible

e r r o r by f a i l i n g t o g i v e a p p e l l a n t ' s o f f e r e d i n s t r u c t i o n No.

8 concerning p r i o r inconsistent statements.

(4) Whether the verdicts rendered and the evidence

presented are so inconsistent a s t o invalidate the verdict

of g u i l t y on c o u n t o n e o f t h e i n f o r m a t i o n .

( 5 ) Whether t h e c l o s i n g a r g u m e n t o f t h e S t a t e v i o l a t e d

appellant's right to a f a i r trial.

(6) Whether the District Court committed reversible

e r r o r by f a i l i n g t o g i v e a p p e l l a n t ' s o f f e r e d i n s t u r c t i o n No.

11 setting Eorth the material allegations of the

information.

( 7 ) Whether the District Court committed reversible

e r r o r by d e n y i n g a p p e l l a n t ' s m o t i o n t o s u p p r e s s e v i d e n c e .

I
Appellant argues that because of the 391 d a y d e l a y

from the time of arrest on March 38, 1982, until the

commencement o f t r i a l on A p r i l 2 5 , 1 9 8 3 , h e was d e n i e d h i s

c o n s t i t u t i o n a l . r i g h t t o a speedy t r i a l . W disagree.
e

A p p e l l a n t was a r r e s t e d on March 3fl, 1 9 8 2 , a r r a i g n e d on

April 5, 1982 and then released on bail. Trial was

originally set for June 21, 1982 but on June 8, 1982,
appellant, through his original counsel, requested and
received a continuance of the trial date until August 16,
1982. On July 13, 1982, appellant's bond was revoked and he
was reincarcerated in the Carbon County Jail were h e
remained until being released on his own recognizance
on August 2, 1982. On August 24, 1982, appellant asked for
and received a second continuance of at least sixty days.
Plea negotiations further delayed matters and on December
22, the trial judge received notice from Sanderson stating
he did not want to accept the negotiated plea arrangement.
In that same letter Sanderson's attorney stated his
intention to withdraw as his attorney. Appointment as
deputy county attorney for Carbon county was cited as the
reason for the withdrawal. On January 12, 1983, Sanderson's
new attorney was appointed. By order mailed January 31,

1983, the District Court set appellant's trial date for
April 25, 1983. On March 17, 1983, appellant's counsel
filed a motion to dismiss on the basis appellant had been
denied his constitutional right to a speedy trial. The
District Court denied the motion on April 19, 1983, and
trial commenced on April 25, 1983.
The right to a speedy trial is guaranteed by both the
Sixth Amzndment to the United States Constitution and by
Article 11, section 24 of the 1972 Montana Constitution.
Yoreover, the federal provision has been imposed upon the
several states by the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. Klopfer v.
North Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18
L.Ed.2d 1.
Having established appellant's right to a speedy
t r i a l , w e now c o n s i d e r w h e t h e r t h a t r i g h t h a s b e e n d e n i e d .

Both a p p e l l a n t and respondent agree t h a t the test to

he used i n determining whether t h e r i g h t t o a speedy t r i a l

h a s b e e n d e n i e d was e n u n c i a t e d more t h a n a d e c a d e a g o b y t h e

U n i t e d S t a t e s Supreme C o u r t i n Barker v. Wingo ( 1 9 7 2 ) , 487

1J.S. 514, 9 2 S.Ct. 2182, 33 L.Ed.2d lnl. In that decision

the Court stated:

"The a p p r o a c h w e a c c e p t i s a b a l a n c i n g
test i n which t h e c o n d u c t o f b o t h t h e
p r o s e c u t i o n and d e f e n d a n t a r e weighed.

"A b a l a n c i n g t e s t n e c e s s a r i l y compels
c o u r t s t o a p p r o a c h s p e e d y t r i a l c a s e s on
an ad hoc b a s i s , W e c a n do l i t t l e more
t h a n i d e n t i f y some o f t h e f a c t o r s w h i c h
courts should assess in determining
whether a p a r t i c u l a r d e f e n d a n t h a s been
deprived of h i s r i g h t . Though some m i g h t
e x p r e s s them i n d i f f e r e n t ways, we
i d e n t i f y four such f a c t o r s : Length o f
delay, t h e reason f o r t h e delay, t h e
d e f e n d a n t ' s a s s e r t i o n o f h i s r i g h t , and
prejudice t o t h e defendant." B a r k e r 4fl7
1J.S. a t 530.

After some e x p l a n a t i o n o f the four factors the Court

continues:

"We r e g a r d n o n e o f t h e f o u r f a c t o r s
i d e n t i f i e d above a s e i t h e r a n e c e s s a r y o r
s u f f i c i e n t condition t o t h e findings of a
deprivation of t h e r i g h t of speedy t r i a l .
R a t h e r , t h e y a r e r e l a t e d f a c t o r s and must
be c o n s i d e r e d t o g e t h e r w i t h s u c h o t h e r
c i r c u m s t a n c e s a s may b e r e l e v a n t . In
sum, t h e s e f a c t o r s h a v e n o t a l i s m a n i c
q u a l i t i e s ; c o u r t s must s t i l l engage i n a
difficult and sensitive balancing
process." B a r k e r , 487 U.S. a t 5 3 3 .

I n t h e p r e s e n t c a s e i t is e s s e n t i a l t h a t we c a r e f u l l y e n g a g e

in the difficult and sensitive balancing process which is

described in Barker. We note that this Court initially

relied on Barker in S t a t e v. Sanderson (1973), 1 6 3 Mont.

2 0 9 , 516 P.2d 372, i n w h i c h we a d o p t e d t h e u s a g e o f t h e f o u r

factors and the balancing test which is necessary in
reaching a final conclusion.
We note that the delay here was 390 days which is
sufficient to trigger a speedy trial inquiry. State v. Kel-ly
(Mont. 19831, 661 P.2d 26, 40 St.Rep. 364. We conclude that
the reasons given for the delay were not sufficient to
terminate our inquiry at that point. In addition the State
agrees with the defendant's contention that he asserted his
right within the appropriate time.
This leaves as the only remaining Barker factor, the
question of prejudice. The United States Supreme Court in
United States v. Ewell (1966), 383 U.S. 116, @S.Ct. 773, 15
L.Ed.2d 627, set forth three interests which the Sixth
Amendment was designed to protect in cases such as these.
The first was the question of undue and oppressive
incarceration. Here the defendant was incarcerated for
twenty-seven days which the record does not disclose to be
oppressive. The next factor is the presence of significant
anxiety and concern accompanying public accusation. While
defendant did testify as to his anxiety, there is substantial
evidence in the record to allow the District Court to
conclude that in fact his anxiety was very limited. However,
we do not turn the case on this point. We do note that there
was nothing in the record to justify the conclusion that the
defense of the defendant was impaired. While defendant
argued that there were diminished memories on the part of his
witnesses and that a key witness moved out of the state, the
prosecution showed that the key witness left the state in
August, 1982, and his absence was not caused by any delay in
trial. This was buttressed by the failure on the part of the
defendant to attempt to depose or otherwise preserve
testimony of witnesses.
As a part of the balancing process required under
Barker, we have reviewed the record with regard to the trial
delay, and have concluded that there is substantial evidence
to show that the defendant may not have wanted a speedy trial
and that the defendant in fact was responsible for the delay
in substantial part. As a result we have concluded that
defendant is in a position similar to Mr. Barker in Barker -
v.
Wingo in that the record demonstrates that the defendant did
not really desire a speedy trial. While this is a close and
difficult question, applying the sensitive balancing process
required under Barker, we conclude that the defendant in this
case was not deprived of his constitutional right to a speedy
trial.

Appellant's second issue on appeal is whether the
District Court erred by denying his motion to provide for
attendance of a witness. On 21, four days before
trial, counsel for appellant filed a motion to provide for
the attendance of a defense witness, Stevenson, who was at
that time residing in Massachusetts. The State resisted the
motion on the grounds that another defense witness would
testify to the same facts. Because of that redundancy,
coupled with cost considerations, the motion was denied.
The State contends the motion was properly denied for
two reasons. First, appellant failed to compl-y with the
procedure for subpoenaing out-of-state witnesses as set forth
in section 46-15-113, MCA. Second, the out-of-state witness
would have duplicated testimony already at hand and as such
would not have qualified as a material witness under the
statute.
The appellant insists he was denied due process by the
District Court's failure to provide for the attendance of the
witness. According to appellant access to the witness was
denied solely on the basis of county financial consideration,
and cites a long line of United States Supreme Court cases to
buttress his due process claim.
 A c c o r d i n g t o s e c t i o n 46-15-113, MCA, the decision

w h e t h e r t o compel t h e a t t e n d a n c e o f an o u t - o f - s t a t e witness

r e s t s s o l e l y w i t h i n t h e d i s c r e t i o n of t h e t r i a l c o u r t judge.

T h i s C o u r t h a s a d d r e s s e d s e c t i o n 46-15-113, MCA, o n l y once

and t h e n i n a manner u n r e l a t e d t o t h e i s s u e b e f o r e u s t o d a y .

The Court of Appeals of New York, People v. NcCartney

(1976), 38 N.Y.2d 618, 345 N.E.2d 326, 381 N.Y.S.2d 855,

found i t s e l f f a c e t o f a c e w i t h a s t a t u t e a l m o s t i d e n t i c a l t o

ours: "A request that t h e T r i a l Judge issue a certificate

p u r s u a n t t o [ t h e s t a t u t e ] seeking t h e compulsory a t t e n d a n c e

of a w i t n e s s i n a n o t h e r s t a t e i s a d d r e s s e d t o t h e d i s c r e t i o n

of t h e t r i a l judge." That Court f u r t h e r held t h a t " ...
i n t h e a b s e n c e o f a n a b u s e o f d i s c r e t i o n w e may n o t o v e r t u r n

[the trial judge's] determination of nonmateriality."

McCartney, 345 N.E.2d a t 33C). See a l s o S t a t e v. Etheridge

(1968), 74 Wash.2d 102, 443 P.2d 536, (Issuance of

certificate t o compel a t t e n d a n c e o f o u t - o f - s t a t e witnesses

is n o t mandatory b u t l a r g e l y d i s c r e t i o n a r y ) ; and S t a t e v.

Edwards ( 1 9 7 0 ) , 471 P.2d 843, 3 Or.App. 179, ( I s s u a n c e of

c e r t i f i c a t e s for out-of-state w i t n e s s e s w i t h i n d i s c r e t i o n of

t r i a l court).

The o n l y p r o c e d u r e t o s u b p o e n a a n o u t - o f - s t a t e witness

is set forth in section 46-15-113, MC.4, applied to the

instant case. The a p p e l l a n t failed t o make t h e p r o c e d u r e

set forth in the statute, or otherwise Stevenson had, or

would be, properly subpoenaed. Appellant's motion was

f a u l t y , and p r o p e r l y d e n i e d .

In addition, it is clear from the record that the

testimony of Mrs. Watson (the ex-wife of the absent

w i t n e s s ) , g i v e n by d e p o s i t i o n and r e a d t o t h e j u r y , covered

t h e e v e n t s t h a t occurred i n A d e l i n e l s Cafe. Therefore, w e
f i n d no a b u s e of d i s c r e t i o n i n n o t b r i n g i n g S t e v e n s o n back

from M a s s a c h u s e t t s .

If appellant's contention was true that the trial

court judge had denied h i s motion s o l e l y on the b a s i s of

c o u n t y f i n a n c i a l s t a n d i n g , t h e n a n i n j u s t i c e would h a v e b e e n

done. I n S t a t e v. Z a r r i s ( 1 9 8 0 ) , 47 Or. Rpp. 6 6 5 , 615 P.2d

36.3, t h e Court of Appeals held that t h e d e f e n d a n t made a

s u f f i c i e n t showing t h a t h i s p r o p o s e d o u t - o f - s t a t e witnesses

were material and therefore the trial court erred in

refusing t o provide funds t o secure t h e i r attendance. The

c a s e a t b a r i s d i s s i m i l a r however. H e r e t h e t r i a l j u d g e had

ample reason t o conclude appellant's proposed w i t n e s s was

nonmaterial. W e hold t h a t a t r i a l c o u r t ' s f i n d i n g a s t o t h e

materiality of a witness when applying this particular

statute will not be disturbed absent a clear showing of

abuse of discretion. Accordingly we reject appellant's

a r g u m e n t on t h i s i s s u e .

TI1

Next appellant contends t h e D i s t r i c t Court committed

reversible error by failing to give offered instruction

No. 8 concerning p r i o r inconsistent statements.

There is a dearth of case law regarding jury

instructions on p r i o r inconsistent statements not only in

gontana but elsewhere as well. The lone Montana case,

h e a v i l y r e l i e d upon by d e f e n d a n t , i s S t a t e v. T a y l o r ( 1 9 7 3 ) ,

1 6 3 Mont. 106, 515 P.2d 695. The d e f e n d a n t i n T a y l o r was

c h a r g e d w i t h s e c o n d d e g r e e h o m i c i d e a r i s i n g from t h e d e a t h

of a t w o - y e a r - o l d child. The c h i l d ' s m o t h e r g a v e t e s t i m o n y

a t t r i a l which was i n c o n s i s t e n t w i t h s t a t e m e n t s s h e had made
prior to trial. The defendant appealed his conviction
contending the trial court erred by not including in its
jury instructions his request that prior inconsistent
statements are one of the factors which the jury should
consider as possibly repelling the presumption that a
witness speaks the truth. This Court agreed with the
defendant in that case and relied on section 93-1091-12,
R.C.M. 1947, which specifically provided: "A witness may
also be impeached by evidence that he has made, at other
times, statements inconsistent with his present testimony. .
. " We concluded:
"Clearly, such an instruction would have
been proper and in a case, such as this,
when the State's principal witness had
admittedly made a number of prior
inconsistent statements, it would seem
particularly appropriate. The giving of
the instruction with the defendant's
requested inclusion regarding prior
inconsistent statements would better
accord with the accepted principle of
fully and clearly instructing the jury as
to the specifics of the law applicable to
the case." Taylor, 515 P.2d at 704.

We must distinguish Taylor from the case at hand for
several reasons. First in -
Taylor, the inconsistent
testimony went directly to the heart of the issue at bar:
whether the defendant had, in fact, caused the death of the
victim. In the instant case, the inconsistencies in the
testimony of D.J. contain no probative value. We agree with

respondent's conclusion that " .. .not only was [sic] none
of her inconsistencies material to whether the defendant's
intercourse with the victim was consensual, but they were
also corrected in a later pretrial statement."
Second, and most persuasively, the trial court
instructed the jury more than sufficiently on the matter in
its i n s t r u c t i o n No. 1. In that i n s t r u c t i o n the following

was read t o the jury: "Every w i t n e s s i s presumed t o speak

the truth. This presumption, however, may b e r e p e l l e d by

t h e manner i n which h e testified, by t h e c h a r a c t e r of his

t e s t i m o n y , o r by e v i d e n c e a f f e c t i n g h i s r e p u t a t i o n f o r t r u t h

honesty, integrity, or h i s m o t i v e s o r by c o n t r a d i c t o r y

evidence. (Emphasis is ours.) Appellant's requested

i n s t r u c t i o n No. 8 would have been identical to the above

i n s t r u c t i o n with the following addition: "Furthermore, t h i s

p r e s u m p t i o n may b e r e b u t t e d by e v i d e n c e t h a t t h e w i t n e s s h a s

made, at other times, statements inconsistent with his

p r e s e n t testimony." W e f i n d t h a t no e r r o r was c o m m i t t e d b y

t h e c o u r t b e l o w , r e v e r s i b l e o r o t h e r w i s e , by r e f u s i n g t o add

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

instruction.

IV

A p p e l l a n t ' s f o u r t h i s s u e on a p p e a l d e a l s w i t h w h e t h e r

there was sufficient evidence before the jury upon which

they based their verdict. More specifically, appellant

urges us t o find t h e v e r d i c t was s o i n c o n s i s t e n t w i t h t h e

evidence a s t o invalidate t h e j u r y ' s findings.

Appellant was charged with two counts of sexual

intercourse without consent. The victim testified that

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

i n t e r c o u r s e w i t h him. The a p p e l l a n t i n s i s t s t h e r e was o n l y

o n e a c t and t h a t a c t was c o n s e n s u a l .

This Court has p r e v i o u s l y faced t h i s i s s u e i n r e c e n t

cases, S t a t e v. Thompson ( 1 9 7 8 ) , 1 7 6 Mont. 150, 576 P.2d

1 1 0 5 ; S t a t e v. Doe ( 1 9 7 6 ) , 1 4 3 Mont. 1 4 1 , 1 4 6 , 388 P.2d 372,
375. In Thompson, supra, we noted in following - supra
Boe,
that "where separate acts are charged in an information, and
each act is a separate offense, an acquittal or conviction
of one or more counts does not affect the other counts. . ."
The jury, after deliberating for approximately nine

hours, found appellant guilty on count one and not guilty
on count two. Appellant apparently feels that either the
jury believed his story or it believed the victim's but
could not have believed a little of each. Appellant argues
if the jury believed his story, the verdict should have been
not guilty on both charges. If the jury believed the
victim's story, the verdict should have been guilty on both
counts.
The decision we are therefore called upon to make is

whether the jury was within its province to believe the
victim's testimony to the point of convicting appellant of
sexual intercourse without consent, while at the same time
disbelieving the victim's testimony as to how many acts were
perpetrated.
The question is well settled in Montana. A long line
of cases state emphatically that this Court, when assessing
the sufficiency of the evidence upon which a jury has based
its verdict, must view that evidence in a light most
favorable to the prosecution. Most recently this Court held

when ". . . assessing the sufficiency of the evidence, this
Court must give it all of the probative effect toward
conviction that it will support. State v. Fitzpatrick
(1973), 163 Mont. 220, 227, 516 P.2d 605, 610." State v.
Hammons (Mont. 1983), 664 P.2d 922, 926, 40 St.Rep. 884,
888. This Court will not substitute its judgment for that
of the jury; 3 j u r y which, in t h i s case, was a b l e t o v i e w

firsthand the evidence presented, observe the demeanor of

the witnesses and weigh the credibility of each party.

Therefore we reject appellant's contention as to the

v a l i d i t y of t h e v e r d i c t .

Appellant contends that the following statements on

closing argument by the State were so inflamatory and

p r e j u d i c i a l a s t o d e n y him h i s r i g h t t o a f a i r t r i a l :

"In order t o find the defendant not
g u i l t y , you h a v e t o t e l l K.D., first,
t h a t s h e was a d r u g p u s h e r ; s e c o n d t h a t
s h e i s a s l u t ; and t h i r d , t h a t s h e i s a
liar. You h a v e g o t t o t e l l h e r t h a t y o u
b e l i e v e t h e d e f e n d a n t when h e s a y s s h e
l a i d i n back o f t h e c a r and t o o k h e r
p a n t s o f f and i n d i c a t e d f o r him t o come
hack. And, i f you c a n b e l i e v e t h a t ,
l a d i e s and g e n t l e m e n , f r o m t h e t e s t i m o n y
t h a t was p r e s e n t e d i n t h i s c a s e , you c a n
a c q u i t him, and l e t him g o . "

A t t h e t i m e of t r i a l , s e c t i o n 46-20-702, MCA, provided

t h a t "Any e r r o r , d e f e c t , i r r e g u l a r i t y o r v a r i a n c e which d o e s

n o t a f f e c t s u b s t a n t i a l r i g h t s s h a l l be d i s r e g a r d e d . " This

h a s s u b s e q u e n t l y been m o d i f i e d .

By h i s t e s t i m o n y and e v i d e n c e , appellant attempted t o

c o n v i n c e t h e j u r y t h a t K.D. was i n t e r e s t e d i n s e l l i n g d r u g s

and was t h e r e f o r e a d r u g p u s h e r , t h a t s h e had v o l u n t a r i l y

offered herself sexually without any encouragement on the

p a r t of t h e a p p e l l a n t , which c e r t a i n l y s u g g e s t s t h a t p a r t s

of our society would class her as a "slut" and last

a p p e l l a n t c o n t e n d e d many times t h a t K.D. had lied to the

jury. The t e s t i m o n y o f K . D . contradicted these contentions

on t h e p a r t o f t h e a p p e l l a n t .

While it is not true that in order to find the
appellant not guilty, the jury would have to tell K.D. that
she was a drug pusher, slut and liar this is a matter of
argument to the jury and not legal instruction by the court.
We certainly do not condone any such misstatement on the
part of the prosecution as to the standard to be applied for
conviction or aquittal. However, we do recognize that a
comment of this nature upon the evidence submitted by the
appellant would have been appropriate so far as the
prosecution is concerned. In weighing the effect of the
argument, we have examined the record and concluded that the
error on the part of the prosection in making this argument
i d not affect the substantial rights on the part of the
appellant and, therefore, may be disregarded.

VI

Appellant next contends the District Court committed
reversible error by failing to give his offered instruction
No. 11 setting forth the material allegations of the
information. He relies on section 46-11-401(l)(c)(iv), MCAI
which reads: "Form of charge. (1) A charge shall: ... (c)

charge the commission of an offense by: . .. (iv) stating
the time and place of the offense as definitely as can be
done . . . " Because the information charging him stated
the offense took place " .. . between Rockvale and Edgar .
. . " appellant claims it was insufficient when held up to
section 46-11-401(l)(c)(iv), MCA.
The test of the sufficiency of an information is
whether the defendant is apprised of the charges brought
against him and whether he will be surprised. State v.
Rogue (1963), 142 Mont. 459, 384 P.2d 749. The test of the
sufficiency of an information is whether a person of common
understanding would know what is intended to be changed.
State v. Board (1959), 135 Mont. 139, 337 P.2d 924. It is
clear from the record that appellant was adequately apprised
of the charges brought against him, that a-ppellant was not
surprised by the charges and that he possessed such common
understanding as enabled him to know what the charges
against him were intended to be. Indeed, the public policy
underlying the technical requirements of the charging
statute is to afford defendant due process of law; that is
to fa.irly apprise them of what crime they are being charged
with in order that they might fully defend against it.
Here, appellant knew full well from the information what
crime he had been charged with. His crime was not part of a
common scheme involving many incidents over a long period of
time. He had not committed so many similar crimes in the
general vicinity that he was confused as to just which
sexual intercourse without consent the prosecution was
referring to. Accordingly we disagree with appellant's
contention of error in this issue.

VI I

The District Court committed reversible error,
appellant contends, by denying his motion to suppress
evidence. Appellant moved to suppress evidence seized
pursuant to the issuance of a search warrant he claims was
defective on its face. However, we need not decide this
issue since the only evidentiary significance of the
property seized was to establish the physical presence of
the victim in the van. Because appellant admitted her
presence and the a c t of sexual intercourse, the property

s e i z e d had no e v i d e n t i a l l y p r e j u d i c i a l i m p a c t and d i d n o t
contribute i n a n y way to the conviction. Therefore the
q u e s t i o n is moot.
The judgment of the District Court convicting

a p p e l l a n t of o n e c o u n t o f 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
is a f f i r m e d .

W e concur:

---
-- -- ----
Chief J u s t i c e

Hongfdable J o h n enson, on,
D i t ict Judge, s i t t i n g i n
?I
? %ojlo f Mr. J u s t i c e L . C .
Gulbrandson.

Lqr. C h i e f J u s t i c e Prank I . H a s w e l l :

I concur i n the result.