No. 8 6 - 2 8 0
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
HAROLD NOEL ST. GODDARD,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Donald A. Garrity, Helena, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Harold Hanser, County Attorney, Billings, Montana
Donna K. Heffington, Deputy County Atty., Billings,
Montana
Submitted on Briefs: Feb. 13, 1 9 8 7
Decided: March 19, 1987
Filed: W(AR 19 1987
Clerk
Mr. J u s t i c e Frank B. Morrison, Jr. d e l i v e r e d t h e Opinion of
t h e Court.
Defendant, Harold St. Goddard, appeals a Yellowstone
County D i s t r i c t C o u r t j u r y v e r d i c t c o n v i c t i n g him o f s e x u a l
i n t e r c o u r s e without consent. W affirm.
e
Defendant was a teacher and track coach during the
s c h o o l y e a r s 1983-84 and p a r t o f 1984-85. The v i c t i m , C . L . ,
was under the age of 16 and a n e i g h t h g r a d e r at another
school. C.L. contends that during this time, she and
defendant entered into a romantic liaison. A sexual
r e l a t i o n s h i p a l l e g e d l y s t a r t e d w i t h d e f e n d a n t f o n d l i n g C.L.
on December 17, 1983. Sexual i n t e r c o u r s e e v e n t u a l l y occurred
on numerous o c c a s i o n s . However, C . L . i s apparently unable t o
remember s p e c i f i c d e t a i l s o r d a t e s o t h e r t h a n August 9 , 1 9 8 4 .
C.L. t e s t i f i e d a t t r i a l t h a t s h e was a t t e n d i n g a d e b a t e
conference in Billings, Montana, on August 9, 1984.
Defendant a l l e g e d l y came t o t h e dorm where s h e was s t a y i n g
and d r o v e h e r t o a m o t e l where he had r e n t e d a room. C.L.
t e s t i f i e d t h a t s h e became angry w i t h d e f e n d a n t t h a t n i g h t and
d i d n o t wish t o engage i n s e x u a l i n t e r c o u r s e w i t h him. She
f u r t h e r t e s t i f i e d t h a t s h e f e l l a s l e e p and awoke t o d e f e n d a n t
p e r f o r m i n g s e x u a l i n t e r c o u r s e on h e r .
Defendant a l l e g e d l y ended t h e r e l a t i o n s h i p i n t h e f a l l
o f 1984. C.L. w r o t e numerous l e t t e r s t o d e f e n d a n t a s k i n g him
to contact her. The letters contained false information
d e s i g n e d t o engage d e f e n d a n t ' s s y m p a t h i e s and f o r c e him t o
communicate with her. C.L.'s mother found d r a f t s o f the
letters in C.L.'s wastebasket. Charges were thereafter
b r o u g h t a g a i n s t d e f e n d a n t , a l l e g i n g t h a t d e f e n d a n t engaged i n
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 w i t h a n i n d i v i d u a l under
t h e a g e o f 16 on August 9 , 1984.
Defendant denies having a romantic or sexual
relationship with C.L. C.L. babysat for his two sons.
Defendant and his wife were friends of C.L.'s parents.
Defendant contends that he and C.L.'s mother had an affair in
the summer of 1984. After finding his wife in bed with
defendant, C.L. ' s step-father sought revenge by having these
charges brought.
The jury trial lasted five days. Testimony was obtained
from many individuals, including defendant, the victim, her
friends, her doctor and her social worker, Linda Crummett.
Ms. Crummett is a clinical social worker who specializes in
treating victims of sexual abuse. She had been counseling
C.L. for sexual abuse for nearly a year at the time of the
trial. Ms. Crummett was a witness for the State. On
cross-examination, victim's counsel elicited the following
testimony:
Q. Ms. Crummett, you indicated that [C.L.] had
evidenced suicidal tendencies, anxiety, extremely
worried?
A. Yes.
Q. Now if you had falsely accused someone of
having sexually assaulted you don't you think those
symptoms might likely be present?
A. I don't think they could be maintained over
this amount of time.
Q. You don't think they could?
A. Nor do I think she would submit herself to this
kind of process.
Q. You don't think she would be extremely worried,
she'd be anxious or be suicidal if she falsely
accused this man of having had sexual intercourse
with her, that's your testimony?
A. That's possible, but I don't think it could be
sustained.
Q. Again your testimony is based upon what she has
told you, what the county attorney has told you,
what the investigating officers have told you, and
what her parents have told you?
A. Yes, and I believe her.
Q. And you believe her?
A. Yes, I do.
Tr. vol. I, p. 46, In. 1-24.
Defense counsel made no objection to or motion to strike
Ms. Crummett's comment that she believed the victim. There
was no motion for mistrial either. In her closing argument,
the prosecutor briefly referred to Ms. Crumrnett 's statement
that she believed the victim's story. Again, no objection
was made.
Following five hours of deliberation, the jury reached a
guilty verdict. Defendant was subsequently sentenced to ten
years in the Montana State Prison and ordered to pay C.L.
$3,000 for counseling expenses. Two issues are raised on
appeal :
1. In a prosecution for sexual intercourse with a
child, may an expert in sexual abuse express the opinion that
she believes the story of the prosecuting witness?
2. Was it error to allow the prosecuting witness to
testify that she and the defendant had engaged in sex on
other occasions?
Appellant objects to Ms. Crummett's statement that she
believed the prosecuting witness as invading the province of
the jury. Appellant acknowledges that no objection or motion
to strike was entered at the time Ms. Crummett made the
statement. He claims, however, that the issue may be raised
on appeal anyway under the "plain error" rule. However, the
1983 Legislature substantially limited application of the
"plain error" rule in criminal appeals.
46-20-104. Scope of appeal by defendant. ...
(2) Upon appeal from a judgment, the court may
review the verdict or decision and any alleged
error objected to which involves the merits or
necessarily affects the judgment. Failure to make
a timely objection during trial constitutes a
waiver of the objection except as provided in
46-20-702.
46-20-702. Types of errors noticed on appeal.
. . No claim alleging an error affecting
jurisdictional or constitutional rights may be
noticed on appeal, if the alleged error was not
objected to as provided in 46-20-104, unless the
defendant establishes that the error was
prejudicial as to his guilt or punishment and that:
(1) the right asserted in the claim did not exist
at the time of the trial and has been determined to
be retroactive in its application;
(2) the prosecutor, the judge, or a law
enforcement agency suppressed evidence from the
defendant or his attorney that prevented the claim
from being raised and disposed of; or
(3) material and controlling facts upon which the
claim is predicated were not known to the defendant
or his attorney and could not have been ascertained
by the exercise of reasonable diligence.
The alleged error does not meet the criteria contained
in S 46-20-702, MCA. We therefore refuse to entertain the
first issue.
The second issue is whether it was error to allow C.L.
to testify about other occasions when she and the defendant
had engaged in sexual intercourse. Rule 404(b), M.R.~vid.
and State v. Just (1979), 184 Mont. 262, 602 P.2d 957,
control. Rule 404(b), M.R.Evid. states:
(b) Other crimes, wrongs, acts. Evidence of other
crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show that he
acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident.
In Just, supra, this Court further limited the use of
other crimes evidence. Before other crimes evidence may be
admitted, the State must provide:
1) notice of the introduction of the evidence;
2) an explanation to the jury at the time of the
introduction of the evidence about the purpose for
which the evidence is introduced; and
3) an instruction that the evidence is to be
received only for the enumerated limited purposes.
Just, 184 Mont. at 274, 602 P.2d at 963-964.
All criteria have been met in this instance. A Just,
notice was filed by the State 3 days before the start of the
trial. The jury was cautioned before the introduction of the
evidence. See transcript, vol. I, p. 59, In. 4-18. The jury
was instructed on the same matter in Instruction No. 4.
Just, supra, also contains a four-part test for
determining whether the other crimes are substantively
admissible. They are:
1) similarity of crimes or acts;
2) nearness in time;
3) tendency to establish a common scheme, plan or
system; and
4) probative value of the evidence outweighs the
prejudicial effect.
Just, 184 Mont. at 269, 602 P.2d at 961.
Again, all criteria are met. The evidence is of crimes
identical to the one with which defendant is charged. The
acts occured within a 9 month span. They show the system of
operation engaged in by the defendant, engaging in a sexual
relationship with C.L. Finally, their probative value
outweighs their prejudicial effect.
Affirmed.
We Concur: