No. 87-492
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-VS-
MARK FRENCH,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COIJNSEL OF RECORD:
For Appellant:
Gary E. Wilcox, Billings, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Betsy Rrandborg, Asst. Atty. General, Helena
Harold Hanser, County Attorney, ~illings, Montana
David W. Hoefer, Deputy County Attorney, Billings
Submitted on Briefs: June 22, 1988
Decided : August 23, 1988
Filed:
'K~G 3
2 198'
Clerk
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
Mark French, the defendant, was convicted of three
counts of sexual intercourse without consent by jury trial in
the District Court of the Thirteenth Judicial District,
Yellowstone County. Defendant appealed. We affirm.
The issues raised on appeal are:
1. Did the District Court err in denying defendant's
motion for a mistrial?
2. Did sufficient evidence of penetration exist to
sustain defendant's conviction of sexual intercourse without
consent?
3. Did the District Court err in denying defendant's
motion for a continuance of the trial?
On July 7, 1987, Mark French, the defendant, was con-
victed under 45-5-503, MCA, of three counts of sexual
intercourse without consent arising out of encounters that
occurred over a five year period with his minor stepdaughter.
French was sentenced to forty years for each count
with the sentences to be served concurrently.
French began living with the victim's mother in December
1980 when the victim was two years old. French married the
victim's mother in August 1981 and adopted the victim in
December 1981. French lived in the same household with the
victim until November 1985 when French and the victim's
mother separated.
The victim attended first grade in Billings during the
1985-86 school year. The victim's first grade teacher no-
ticed unusual behavior from the victim and eventually re-
ferred the victim to a school counselor. Through meetings
with the school counselor, the victim disclosed the
encounters that occurred with French. At trial, the victim
testified that while French was living with the family, but
while her mother was not at home, French would touch her
vagina and bottom with his hands and his penis. She further
testified that he would place his penis in her mouth and
ejaculate.
Supporting the victim's testimony at trial were the
testimonies of the school counselor, who holds a Master's
degree in counseling and a Bachelor's degree in education; a
medical doctor who conducted a physical examination of the
victim; the victim's mother; the victim's grandmother; and
the victim's teacher. The school counselor, who met with the
victim once or twice a week beginning in January 1986, testi-
fied that the victim appeared traumatized or abused. The
counselor based this opinion on the victim's reaction when
inquiring about French's behavior and anything he might have
done to her and what the victim was eventually able to tell
her about the manner in which French sexually abused her.
When inquiring about French, the victim's reaction included
assuming a fetal position, rocking, crying, and refusing to
allow anyone to touch her. The medical doctor testified that
the results of the victim's physical exam was consistent with
recurrent anal penetration and that while the vaginal opening
was normal size for a girl of that age, the results did not
preclude penetration of the perineal area or the vagina.
The victim's grandmother testified that she witnessed
French behave peculiarly one afternoon when he came to pick
the victim up after the grandmother had been babysitting.
Specifically, the grandmother testified that French had been
drinking and went to wake the victim from her nap. The
grandmother went to check on them and saw French lying across
the bed with the victim on top of him giving her a long kiss
with his eyes closed while rolling back and forth. French
stopped when he noticed the grandmother and then took the
victim to the living room area, and apparently believing he
was unobserved, kissed her some more, pulled her panties
down, patted her bottom, and told her she had a "cute little
butt. "
The victim's mother testified to occasions when French
and she were in bed and French would call her by the victim's
name. She further testified that the victim would complain
about soreness in her genitalia and rectal areas but did not
want her mother to tell French about her complaints. The
victim's teacher testified that the victim displayed unusual
behavior for a six year old, in that she was very shy, jumpy,
skittish and masturbated frequently. The teacher further
testified that during one teaching session when the teacher
was focusing on "warm fuzzies," things that people do to make
you feel good inside, and "cold pricklies," things that
people do to make you feel bad or to hurt you, that the
victim, who was usually shy and reserved in the classroom,
blurted out that her dad gave her cold pricklies every time
her mom left the house.
French denied having any type of sexual intercourse with
his minor stepdaughter. The jury, after hearing all the
testimony, found French guilty of all three counts of sexual
intercourse without consent with the victim. French appeals
the conviction, raising three issues.
The first issue French raises is whether the District
Court erred in denying French's motion for a mistrial.
The District Court, after considering the circumstances,
is in the best position to determine whether the responses by
the school counselor were bases for a mistrial. When a court
exercises its power to nullify a jury's verdict by granting a
motion for a mistrial, this "power ought to be used with the
greatest caution, under urgent circumstances, and for very
plan and obvious causes; . . ."State v. Close (Mont. 1981),
623 P.2d 940, 945-46, 38 St.Rep. 177, 183 (quoting United
States v. Perez (1824), 22 U.S. (9 Wheat) 579, 580). This
Court's function on appeal is to determine whether the
District Court abused its discretion by not granting a
mistrial. Close, 623 P.2d at 946, 38 St.Rep. at 183.
French argues that the District Court should have grant-
ed his motion for a mistrial. French bases this argument on
the school counselor's responses to questions by the prosecu-
tor on whether the counselor believed the now eight year old
victim was telling the truth. The three questions by the
prosecutor that French points to are:
Q. And so the fact that she would tell
you things, and then later deny it, did
not imply to you that she was lying?
A. I have never been convinced that she
has ever lied to me.
Q. And so what we really need to get
down to is: Do you feel that most of
what she said was the truth? A. There
is no question in my mind that what she
told me was the truth.
. Now, did you believe that she was
responding accurately or not embellish-
ing when she answered those questions?
French objected to the last of these three questions
addressed to the school counselor.
To support his argument, French relies upon State v.
Brodnkk (1986), 718 P.2d 322, 43 St.Rep. 755 to argue that
this Court does not allow an expert witness to testify on
whether the expert believes that the witness is telling the
truth. In Brodniak, we held that an expert's testimony
explaining rape trauma syndrome is permissible, but that the
expert could not testify as to whether she believed the
witness was telling the truth. Brodniak, 718 P.2d at 327-29,
43 St.Rep. at 758-63. French therefore argues that this is a
basis for granting his motion for a mistrial. We disagree.
French fails to acknowledge our more recent decision,
State v. Geyman (1986), 729 P.2d 475, 43 St.Rep. 2125. In
Geyman we addressed for the first time the admissibility of
expert testimony when a child is subject to sexual assault.
After assessing the relevant literature and other jurisdic-
tions' treatment of the subject, we held that "expert testi-
mony is admissible for the purpose of helping the jury to
assess the credibility of a child sexual assault victim."
Geyman, 729 P.2d at 479, 43 St.Rep. at 2131. A child's reac-
tion to being subject to sexual assault of any form may
include responses most adults, unfamiliar with the subject,
find peculiar. A child may, for example, fail to disclose
the defendant's criminal sexual acts immediately and may also
oscillate between admitting the abuse and denying it. An
expert witness's testimony merely aids the jurors in
assessing a child's credibility under such abusive circum-
stances, but in no way impinges upon the jury's obligation to
decide ultimately the victim's credibility. Geyman, 729 P.2d
at 479-80, 43 St.Rep. at 2131.
In light of the recent case law, we hold that the Dis-
trict Court did not abuse its discretion by denying French's
motion for a mistrial based on the school counselor's opinion
as to whether the eight year old victim was telling the
truth.
The second issue French raises on appeal is whether
sufficient evidence of penetration exist to sustain inter-
course without consent.
In arguing that insufficient evidence exist to support
the jury's verdict, French notes that under Count I he was
charged with having vaginal intercourse with the victim, yet
the physician did not testify conclusively that the victim
was subject to recurrent internal and complete vaginal pene-
tration. French then argues, based upon the foregoing, that
"no evidence whatsoever" supported the jury's verdict as to
Count I and therefore that the evidence supporting Counts II
and I11 should also be found insufficient. We again
disagree.
French fails to acknowledge the current statute defining
sexual intercourse and other evidence in the record. Sexual
intercourse, as used in 5 45-5-503, MCA, includes
penetration, however slight, of the vulva. Section
45-2-101 (61), MCA. Complete internal vaginal intercourse is
not necessary. The record reveals that the victim frequently
complained of soreness in her perineal area, the physician
testified that the area was red and would not preclude com-
plete internal vaginal intercourse nor perineal rubbing, and
further, the victim testified that French tried to put his
penis in her vagina.
When determining whether sufficient evidence supports
the jury's verdict on appeal, this Court will view the evi-
dence in the light most favorable to the prosecution, and
will uphold the verdict if a reasonable mind could have found
the essential elements of the crime beyond a reasonable
doubt. State v. Oman (1985), 707 P.2d 1117, 1120, 42 St.Rep.
1565, 1568-69; State v. A.D.M. (1985), 701 P.2d 999, 1000, 42
St.Rep. 916, 918. In light of the statutes and the evidence,
we hold that sufficient evidence exists to allow the jury to
conclude that French performed vaginal intercourse on the
victim.
French's half-hearted argument that Counts I1 and 111,
which are based upon his performing anal and oral intercourse
on the victim, should also be found insufficient because "no
evidence whatsoever" supported his conviction for vaginal
intercourse is without substance. Besides finding sufficient
evidence to support his conviction for vaginal intercourse,
the record also contains sufficient evidence to support both
Counts I1 and 111. Such evidence includes the victim's own
testimony that French performed anal and oral intercourse on
her, the physician's testimony that the results of the vic-
tim's physical examination were consistent with recurrent
anal penetration, and the school counselor's as well as the
mother's and grandmother's testimonies.
A conviction of sexual intercourse without consent is
sustainable based entirely on the uncorroborated testimony of
the victim. State v. Lamping (1988), 752 P.2d 742, 746, 45
St.Rep. 616, 620; State v. Maxwell (1982), 198 Mont. 498,
503, 647 P.2d 348, 351. While the victim's testimony alone
is sufficient in this case, it is nonetheless supported by
other evidence. We therefore hold that sufficient evidence
exists to allow the jury to conclude that French performed
anal and oral intercourse on the victim.
The last issue French raises on appeal is whether the
District Court erred in denying his motion for a continuance
of the trial.
French's motion for a continuance is based upon French's
desire to undergo a psychological evaluation. French argues
that no one would have been prejudiced by granting the motion
for a continuance, stating that the evidence indicated he had
not seen his children since the fall of 1986 and no evidence
existed that he had engaged in any similar activity since
1986. In support of the motion, French argues that he would
suffer prejudice as a resul-t of the denial of the motion
because he did not have time to explore the possibility of
utilizing the psychologist's testimony. Once again, we
disagree.
The controlling statute to determine whether the Dis-
trict Court should have granted French's motion for a
continuance is S 46-13-202 (3), MCA. This statute states:
All motions for a continuance are ad-
dressed to the discretion of the trial
court and shall be considered in the
light of the diligence shown on the part
of the movant. This section shall be
construed to the end that criminal cases
are tried with due diligence consonant
with the rights of the defendant and the
state to a speedy trial.
On appeal, this Court will not reverse the District Court
unless the court clearly abused its discretion. State v.
Walker (1987), 733 P.2d 352, 355, 44 St.Rep. 363, 366.
This Court has consistently held that before a motion
for a continuance is granted to allow the movant more time to
obtain evidence, the movant must have shown the exercise of
due diligence in procuring the desired evidence. Walker, 733
P.2d at 354, 44 St.Rep. at 365-66; State v. Lance (Mont.
1986), 721 P.2d 1258, 1269-70, 43 St.Rep. 1086, 1097-98;
State v. Van Natta (1982), 200 Mont. 312, 321, 651 P.2d 57,
61. The legislature further requires that "[a] motion to
postpone a trial on grounds of the absence of evidence shall
only be made upon affidavit showing the materiality of the
evidence expected to be obtained and that due diligence has
been used to procure it." Section 25-4-501, MCA. French has
done neither.
The record reveals that French's trial date had already
been rescheduled twice. The April trial date was rescheduled
after the District Court granted French's motion for a
continuance because he had inadequate time to prepare for
trial. The June trial date was vacated by the court on its
own motion and rescheduled for July 6, 1987. French ' s
request, informally made a week before the trial, would have
reset the trial date a third time.
French offers no evidence or argument that he exercised
due diligence in pursuing a psychological evaluation. The
trial date had already been rescheduled once at the request
of French, which allowed him three more months to prepare for
trial. No formal affidavit was submitted as required by 5
25-4-501, MCA.
In granting a motion for a continuance, the statute, $
46-13-202 ( 3 ) , MCA, clearly allows the District Court to
exercise its own discretion after considering the diligence
put forth by the movant. In light of the minimal diligence
exercised by French, we hold that the District Court did not
abuse its discretion by denying French's second motion for a
continuance so as to allow French to undergo a psychological
evaluation.
Affirmed.
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We Concur: //
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/ Chief Justice /
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Justices ~ ~