No. 87-432
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
J O E L GILPIN,
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:
Stephen C. Moses; Moses Law Firm, Billings, Montana
For Respondent:
Honorable Mike Greely, Attorney General, Helena, Montana
Patricia J. Schaeffer, Assistant Attorney General
Harold F. Hanser, County Attorney, Billings, Montana
Donna Heffington, Deputy County Attorney
Submitted on Briefs: March 11, 1988
Decided: May 11, 1988
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
This matter is on appeal from the District Court of the
Thirteenth Judicial District, Yellowstone County, wherein a
jury found Joel Gilpin guilty of two counts of sexual as-
sault. We affirm.
Mr. Gilpin presents eight issues for review:
1. Did the District Court commit reversible error by
denying defendant's motion for mistrial when the prosecution
referred to certain statistics during voir dire?
2. Did the court err by admitting evidence of other
crimes, wrongs, or acts?
3. Did the court err by denying defendant's motion to
compel psychiatric examination of the victims?
4. Did the court err by denying defendant's motion to
dismiss on grounds that the State failed to establish the
element of "sexual contact"?
5. Did the court err by refusing three of defendant's
offered instructions?
6. Was the evidence sufficient to convict the
defendant?
7. Did the court err by admitting, at the sentencing
hearing, evidence of other acts?
8. Did the court err by sentencing defendant to two
consecutive terms?
In the early evening hours of October 31, 1986, Hallow-
een night, the defendant Joel Gilpin and a friend were at the
home of a female co-worker. She had to work until later that
evening so Mr. Gilpin and the other man were helping her
three children get ready for Halloween trick-or-treating.
The woman's 11 year old daughter testified that she and
Mr. Gilpin were sitting on the downstairs couch and that no
one else was in the room with them. She then testified as
follows:
Q. And what happened first?
A. Well I was leaning over to get something,
I think it was a blanket and then I felt his hand
like on my back butt.
Q. On your back butt, where would that be.
A. My cheek.
A. Okay. And what was his hand doing?
A. Oh, was kind of like rubbing.
Q. What happened next?
A. Well then I sat back down and his hand was
still there, he was like squeezing.
Q. Was his hand on the side of your butt then
when you sat back down?
A. No, I was sitting on his hand like.
Q. So his hand was underneath your butt?
A. Yes.
Q. And what was he doing with his hand?
A. He was like squeezing.
Q. Squeezing what?
A. My butt.
Q. How did that make you feel?
A. It felt weird.
Q. What did you do?
A. Well I couldn't really do anything because
then he picked me up and put me on his lap.
Q. And when he put you on his lap, what did
he do?
A. Well he had one hand on my butt and then
one hand between my legs.
Q. Where between your legs, ... ?
A. On my inner thigh.
Q. How far up or down on your inner thigh?
A. Well about five inches away from my
vagina.
Q. Okay. What was he doing with his hand
when he had his hand on your inner thigh?
A. He was rubbing and then he kind of like
moved up.
Q. Toward your vagina?
A. Yeah.
Q. How did you feel about that?
A. It felt weird.
Q. What did you do, . .
. ?
A. I got up and I went upstairs because
someone called me or else the doorbell rang.
...
Q. When you w e r e u p s t a i r s w i l l you t e l l t h e
j u r y what happened.
A. W e l l I was, I went and I j u s t s h u t t h e
d o o r ' c a u s e t h e y w e r e t r i c k o r t r e a t i n g and I d o n ' t
know i f anybody e l s e was u p s t a i r s and t h e n J o e l
came up from b e h i n d m e and h e l i k e s t a r t e d a t my
w a i s t and s t a r t e d coming up t o w a r d s my b r e a s t s and
h e was s a y i n g s t u f f l i k e h e h a r d l y e v e r g e t s t o s e e
m e , and t h i n g s .
...
Q. A l l right. And you s a i d h e was moving h i s
h a n d s up?
A. Uhhuh.
Q. How f a r up d i d he move them?
A. R i g h t u n d e r my b r e a s t s .
Q. What d i d you do?
A. W e l l I s t e p p e d on h i s t o e and I l e f t .
Q. Did you make any e f f o r t t o p u s h h i s h a n d s
down?
A. Yeah, I d i d , t h e n h e k e p t moving b a c k up.
Q. And t h a t ' s when you s t e p p e d on h i s t o e ?
A. Yes.
Q. And d i d you d o it p u r p o s e l y o r was i t an
accident?
A. Purposely.
Q. And why d i d you s t e p on h i s t o e ?
A. So I c o u l d g e t away.
The 11 y e a r o l d t e s t i f i e d t h a t , a f t e r g e t t i n g away, s h e
went d o w n s t a i r s a g a i n , s a t down, and began w h i t i n g h e r s h o e s .
She s a i d t h a t M r . G i l p i n came d o w n s t a i r s and went i n t o t h e
bathroom.
The g i r l ' s 1 2 year old sister t e s t i f i e d t h a t s h e had
d r e s s e d i n h e r c o s t u m e , had p u t on h e r makeup, and was s t a n d -
i n g i n f r o n t o f t h e bathroom m i r r o r when M r . G i l p i n came i n
and stood i n the doorway. She t e s t i f i e d that Mr. Gilpin
a s k e d h e r what s h e was g o i n g t o b e f o r Halloween. She t e s t i -
f i e d , i n p a r t , a s follows:
Q. Did you answer him?
A. Yes.
Q. What d i d you t e l l him?
A. A prostitute or hooker or whatever.
Q. Did he respond to that in any way?
A. Yes.
Q. What did he do?
A. He said he wishes he could be my first
customer.
Q. Did he say that from the doorway where he
was standing?
A. Yeah, and I think he kinda walked towards
me.
...
Q. Where did he stand?
A. Behind me.
Q. Several feet behind you?
A. No.
Q. How close behind you?
A. So I could feel him.
Q. Did he say anything to you when he came
and stood behind you?
A. He just kept repeating, "I wish I could be
your first customer".
Q. Did you say anything back about that?
A. No.
Q. Now when he stood behind you so that you
could feel him saying he would like to be your
first customer, do you know what he was doing with
his arms?
A. Yes, he put them under my arms.
Q. Where were his hands?
A. On my breasts.
...
Q. What was he doing with his hands?
A. He was rubbing like.
Q. Now you were wearing your sweater at that
time, right?
A. Yeah.
...
Q. When Joel did these things to you, . . .,
what did you do?
A. I tried to wiggle away.
Q. You tried to wiggle away?
A. Yes.
...
Q. Were you able to wiggle away?
A. Yeah.
Q. Okay. Did you then leave the bathroom?
A. I tried to.
Q. What happened?
A. He grabbed my arm.
Q. Where did he grab you?
A. On the wrist.
Q. And what did he do?
A. He just was saying no, no.
Q. Okay. Did he just let you stay out there
at the end of his arm?
A. No, he kind of pulled me back again.
Q. What did you do then?
A. I told him that I thought I heard the
doorbell ring.
She testified that during this time she was yelling, "help
... help me," to her 11 year old sister. Her sister heard
the yelling but thought she was "joking around." Mr. Gilpin,
however, let the 1 2 year old go when she said she heard the
doorbell ring. She said she and her sister ran upstairs and
"decided we would stick together the whole night." She
explained, "We decided that so he wouldn't try anything on
us, together we thought maybe he couldn't do anything when we
were together."
Neither of the girls told anyone about these incidents
that night. A week or so later, the 11 year old wrote a note
to her mother, explaining the problems the girls had been
having with Mr. Gilpin. She specifically described the
bathroom incident between her older sister and Mr. Gilpin.
After receiving the note and discussing the matter with
the girls, the mother eventually talked with a detective from
the Billings Police Department. The mother and two girls
each gave statements to the detective concerning the inci-
dents. The girls also received counselling from a psycho-
therapist. The 11 year old saw the therapist twice, and the
1 2 year old saw her five or six times. The therapist was not
called to testify at trial by either party.
Mr. Gilpin denied all of these allegations. At the
conclusion of trial, the jury returned a verdict of guilty on
both counts of sexual assault, 5 45-5-502, MCA. The District
Court sentenced Mr. Gilpin to a term of four years imprison-
ment on each count, to be served consecutively.
Did the District Court commit reversible error by deny-
ing defendant's motion for mistrial when the prosecution
referred to certain statistics during voir dire?
During voir dire, the deputy county attorney referred to
a statistical probability that one in every five men and one
in every three women have been molested before the age of
eighteen. The defense objected that this was an offer of
testimony. The court informed the prospective jurors that
this was neither testimony nor evidence to be considered by
them. The prosecution then asked if any of the potential
jurors or people close to them had been victims of sexual
abuse. At this point defense counsel moved the court to
declare a mistrial. The court denied the motion.
The defense argues that the prosecution was attempting
in voir dire to personalize information in the form of sta-
tistics for which there was never any testimony at trial. He
claims the information tainted the entire jury panel. Mr.
Gilpin does not present any evidence to support this allega-
tion of prejudice.
The appellant must show by clear and convincing evi-
dence, practically free from doubt, that the trial court's
ruling on a motion for mistrial was erroneous. State v.
Murray (Mont. 1987), 741 P.2d 759, 762, 44 St.Rep. 1394,
1397. Although we are not convinced that the prosecutor's
statements were either necessary or appropriate, we conclude
that any taint created by those statements was remedied by
the court's admonishment to the jury that the statements were
not evidence and that only sworn testimony and tangible
evidence could be considered. We hold that the record does
not contain clear and convincing evidence that the trial
court's ruling was erroneous.
I1
Did the court err by admitting evidence of other crimes,
wrongs, or acts?
Mr. Gilpin objects to certain testimony of the two
victims which included descriptions of other prior incidents
between himself and the victims. He argues that these acts
are inadmissible as other crimes, wrongs, or acts under
Montana law. This Court outlined the proper test for admis-
sibility of other crimes or acts in State v. Stroud (Mont.
1984), 683 P.2d 459, 465, 41 St.Rep. 919, 924-25:
Rule 404 (b) provides that:
" [elvidence 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."
Admissibility is also governed by specific substan-
tive and procedural rules. The four substantive
requirements are (1) similarity between the crime
charged and the previous crimes, wrongs or acts;
(2) nearness in time between the charged crime and
the previous crimes, wrongs or acts; (3) tendency
to establish a common scheme, plan or system; - and
(4) determination that the probative value of the
evidence is not substantially outweighed by the
prejudice to the defendant. Jensen, supra, 153
Mont. at 239, 455 P.2d at 634 and Rule 403,
Mont.R.Evid. In addition, three procedural guide-
lines must be followed: (1) notice to the defen-
dant prior to trial that evidence of other crimes,
wrongs or acts will be introduced; (2) an admoni-
tion by the judge to the jury when the evidence is
introduced that it is admitted solely for one or
more of the accepted purposes stated in Rule
404(b) ; and (3) a cautionary jury instruction to
the same effect, providing in unequivocal terms
that the evidence is admitted for the purpose
earlier stated and not to try and convict the
defendant for prior wrongful conduct. Just, supra,
184 Mont. at 274, 602 P.2d at 963-64.
a. Similarity between crime charged and previous acts
The prior acts contained in the State's notice consisted
of the following:
(a) In spring of 1986 ... when [the 11 year
old] was sitting on the defendant's lap during a
game of Trivial Pursuit, he put his hand on her
thigh, moved his hand to her inner thigh, and began
rubbing upward on her inner thigh.
(b) During the summer of 1986 . .
. defendant
put his arms around [the 12 year old] , and hugged
her tight for a long time, while telling her to
call him if she ever needed to talk, and held her
so tight she could feel his penis against her.
Mr. Gilpin, in his brief, concedes that the incidents involv-
ing the 11 year old were similar. He contends that the
incidents involving the 12 year old had "absolutely no simi-
larity." Concerning the 12 year old girl, Mr. Gilpin was
charged with standing very close behind her and rubbing her
breasts. It is not necessary that the prior acts and the
charged offense be identical. State v. Tecca (Mont. 1986),
714 P.2d 136, 138, 43 St.Rep. 264, 267. We conclude that the
other acts were sufficiently similar to the charged offense
to justify admission of the evidence. State v. Long (Mont.
1986), 726 P.2d 1364, 1367, 43 St.Rep. 1948, 1951.
b. Nearness in Time
Mr. Gilpin concedes that the incidents were near in
time.
c. Tendency to establish a common scheme, plan, or system
The evidence of other acts in this case appears consis-
tent with the crime charged and suggests the defendant's
desire to gratify his sexual desires by fondling the girls at
different times. What Mr. Gilpin contends on appeal is that
the State, by dropping the language "continuing course of
conduct" from the information, somehow agreed that these
incidents did not constitute a common scheme, plan, or sys-
tem. As the District Court noted when the information was
amended, "continuing course of conduct" was not an element of
the crime charged and properly was dropped as surplusage. We
conclude that amendment of the information in this way did
not estop the State from presenting evidence of other acts
tending to show a common scheme, plan, or system.
d. Probative value versus prejudicial effect
Mr. Gilpin contends that the other acts involved could
have sexual connotations or could as easily be viewed as
common experiences of life. He argues that Rule 404(3) (b),
M.R.Evid., requires that only acts which have been proven to
be wrongful or criminal may be admitted, not acts which may
be ambiguous. Evidently he is arguing that to be probative
enough to substantially outweigh prejudice, an act must be
criminal in nature. He cites no authority for this position,
and we find no support for it in the rule itself. Evidence
otherwise inadmissible under the rule may be admitted for the
limited purpose of helping to establish motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. The District Court ruled that the
evidence was admissible for this purpose, and we see no clear
error in that decision. The defense had the opportunity to
cross-examine these witnesses, and the jury then had this
testimony to weigh in its determination. The evidence tended
to corroborate the children's allegations and was probative
of absence of mistake or accident. We conclude that the
prejudicial effect of the evidence does not outweigh its
probative value.
e. Notice
Mr. Gilpin argues that the State did not give proper
notice, as required by Just, that evidence of other crimes,
wrongs, or acts would be introduced. Defense counsel did not
receive notice until May 26, the day before trial. The
defense filed a motion in limine to exclude the evidence of
other acts at trial and objected to the notice as untimely.
We stated in State v. Case (Mont. 1980), 621 P.2d 1066, 1071,
37 St.Rep. 2057, 2063, and again in Murray, 741 P.2d at 764,
that "the State must provide written notice to the defendant,
before - - - is called for trial
the case . . ." (Emphasis added).
This simply means that notice must be given before the trial
has actually begun. State v. Johnson (1978), 179 Mont. 61,
70, 585 P.2d 1328, 1333. We hold that the State's notice was
timely.
f. Admonition
Mr. Gilpin takes issue with the court's admonition to
the jury concerning the evidence of other acts. He contends
that the result of the court's admonition is that the jury
received the court's opinion that the otherwise innocent acts
were in fact wrongful or criminal. The court admonished the
jury as follows:
Ladies and gentlemen of the jury, evidence may
be introduced during the course of this trial that
may show that defendant may have committed other
acts at other times which might be seen as wrong.
By other acts at other times I mean other than the
ones for which he is on trial. You may not consid-
er any such evidence to prove that the defendant is
a person of bad character, or that he has a dispo-
sition to commit crimes or that he committed the
crime of which he now stands accused. You may only
consider this evidence for the limited purposes of
providing a characteristic method, plan or scheme
that may have been used in the commission of the
offense in this case. You may also consider this
evidence to prove existence of intent, in other
words, acting knowingly, which is an element of the
crime charged. You may not consider this evidence
for any other purpose as to do so might expose the
defendant to unjust and double punishment.
In Just, 602 P.2d at 964, we explained what procedures
must be followed with regard to admonition and instructions
to the jury:
(b) At the time of the introduction of such
evidence, the trial court shall explain to the jury
the purpose of such evidence and shall admonish it
to weigh the evidence only for such purposes.
(c) In its final charge, the court should
instruct the jury in unequivocal terms that such
evidence was received only for the limited purposes
earlier stated and that the defendant is not being
tried and may not be convicted for any offense
except that charged, warning them that to convict
for other offenses may result in unjust double
punishment.
We conclude that the trial court properly admonished and
instructed the jury on this point. We hold that th,e District
Court properly admitted this evidence of other crimes,
wrongs, or acts.
Did the court err by denying defendant's motion to
compel psychiatric examination of the victims?
Mr. Gilpin argues that no physical or psychological
evidence existed in this case to corroborate the girls'
testimony. He says that had the court granted his motion to
compel psychiatric examination of the victims, he might have
been able to show they did not suffer from post-trauma syn-
drome. He then urges, "If the child does not have the trau-
ma, then the event did not occur." This argument merits
little discussion. While we have held that expert testimony
is "admissible for the purpose of helping the jury to assess
the credibility of a child sexual assault victim," State v.
Geyman (Mont. 1986), 729 P.2d 475, 479, 43 St.Rep. 2125,
2131, we have not by any means held that expert testimony is
necessary or required. The prosecution is not required to
prove psychological trauma, and the absence of evidence of
psychological trauma logically does not prove that the of-
fense did not occur. The defendant cannot force psychologi-
cal evaluation of a child victim of sexual assault. As
stated by this Court in State v. Liddell (Mont. 1984), 685
P.2d 918, 924, 41 St.Rep. 1293, 1300:
There is no legal authority for such a proce-
dure. Rule 35 (a), M.R.Civ.P., allows for a mental
or physical examination by a physician when the
mental or physical condition of a party is in
-
controversy. The victim in this matter is a wit-
ness, not a party to this action.
We hold that the District Court did not abuse its discretion
by denying defendant's motion to compel psychiatric examina-
tion of the victims.
IV
Did the court err by denying defendant's motion to
dismiss on grounds that the State failed to establish the
element of "sexual contact"?
Mr. Gilpin contends that the State failed to prove
beyond a reasonable doubt that he subjected the girls to any
"sexual contact". That term is defined at 5 45-2-lOl(60):
"Sexual contact" means any touching of the
sexual or other intimate parts of the person of
another for the purpose of arousing or gratifying
the sexual desire of either party.
Thus, the defendant must (1) touch the sexual or other inti-
mate parts of the girls, (2) for the purpose of arousing or
gratifying his or the girls' sexual desires. He argues that
the State failed in its proof of both elements. The standard
o f r e v i e w f o r s u f f i c i e n c y o f t h e e v i d e n c e was f i r s t s t a t e d i n
J a c k s o n v . V i r g i n i a ( 1 9 7 9 ) , 443 U.S. 307, 319, 99 S . C t . 2781,
2789, 6 1 L.Ed.2d 560, 573; and r e s t a t e d i n S t a t e v . Geyman
(Mont. 1 9 8 6 ) , 729 P.2d 475, 476, 43 St.Rep. 2125, 2126.
[Tlhe r e l e v a n t q u e s t i o n i s whether, a f t e r viewing
t h e e v i d e n c e i n t h e l i g h t most f a v o r a b l e t o t h e
p r o s e c u t i o n , any r a t i o n a l t r i e r o f f a c t c o u l d h a v e
found t h e e s s e n t i a l e l e m e n t s o f t h e c r i m e beyond a
reasonable doubt.
A s t o t h e 12 y e a r o l d v i c t i m , w e c o n c l u d e t h a t t h e t e s t
s e t f o r t h i n Geyman i s s a t i s f i e d . A r a t i o n a l trier of fact
could have concluded that Mr. Gilpin rubbed the girl's
b r e a s t s f o r t h e purpose of arousing o r g r a t i f y i n g h i s sexual
desires.
A s t o t h e 11 y e a r o l d v i c t i m , Mr. G i l p i n a r g u e s t h a t he
d i d n o t t o u c h a n i n t i m a t e p a r t o f h e r body. The e v i d e n c e was
t h a t h e had rubbed and s q u e e z e d h e r b u t t o c k s w i t h h i s hand.
H e t h e n p l a c e d h e r on h i s l a p , a n d , w i t h one hand s t i l l on
h e r b u t t o c k s , h e b e g a n r u b b i n g h e r i n n e r t h i g h w h i l e moving
h i s hand toward h e r v a g i n a . Then, upstairs, he placed h i s
h a n d s a t h e r w a i s t and b e g a n t o move h i s h a n d s up u n t i l t h e y
w e r e under h e r b r e a s t s . She t h e n s t e p p e d on h i s t o e and r a n
downstairs.
I n S t a t e v. Weese ( 1 9 8 0 ) , 189 Mont. 464, 616 P.2d 371,
t h e defendant pulled a 9 year o l d g i r l "onto h i s l a p , pulled
u p h e r s h i r t and b e g a n r u b b i n g h e r b e l l y and c h e s t b u t d i d
n o t make c o n t a c t w i t h h e r n i p p l e s . " H e then offered her a
dollar i f s h e would a l l o w him t o c o n t i n u e . T h i s C o u r t con-
s t r u e d t h a t conduct a s p r o h i b i t e d s e x u a l c o n t a c t should t h e
jury determine defendant had the purpose to gratify his
sexual desires. Weese, 616 P.2d a t 374. This Court d i s -
cussed t h e purpose o f t h e s t a t u t e :
Use of the terms "sexual or other intimate
parts" indicates that the legislature did not
intend to restrict the crime to a touching of the
genitalia of either sex or a touching of a female's
breast, but instead intended to give the terms a
broader application. In keeping with the focus of
sexual assault statutes on the outrage, disgust or
shame engendered in the victim, other courts have
held that the term "intimate parts" in such stat-
utes include the buttocks . .. the hips. .. and
the prepubescent chest of a 7-year old girl . . .
(omitting citations).
Weese 616 P.2d at 374. We conclude that Mr. Gilpin's conduct
here fits within the type of contact prohibited by the legis-
lature. We are not convinced by Mr. Gilpin's suggestion that
he must touch the girl under her clothing before sexual
contact can occur. Nothing in the statute suggests such a
restricted reading. Mr. Gilpin further argues that no evi-
dence exists to establish that he had the purpose of arousing
or gratifying his sexual desires. We conclude that a ration-
al trier of fact could infer the requisite intent from Mr.
Gilpin's conduct. State v. Kestner (Mont. 19861, 713 P.2d
537, 540, 43 St.Rep. 155, 159. We hold that the District
Court properly denied Mr. Gilpin's motions to dismiss.
v
Did the court err by refusing three of defendant's
offered instructions?
Mr. Gilpin argues that the court erred by failing to
give three of his offered instructions. Offered instruction
no. 5 stated that defendant cannot be convicted on conjec-
ture, suspicion, or probability. He bases this instruction
upon State v. Keckonen (1938), 107 Mont. 253, 84 P.2d 341.
We distinguish that case from the present case because
Keckonen relied upon a statute providing that conviction
cannot be had on uncorroborated testimony of an accomplice.
Further, the defendant's concerns on this point were covered
by the District Court's instruction no. 1, stating in perti-
nent part,
The law forbids you to be governed by mere senti-
ment, conjecture, sympathy, passion, prejudice,
public opinion or public feeling.
Defendant's offered instruction no. 5 also defined "reason-
able doubt". We conclude that instruction no. 8, given by
the court, covered this elemant.
Offered instruction no. 10 tells the jury that there
must be a joint action of act and mental state. We conclude
that the elements of the offense were stated and covered in
the given instructions which properly instructed that Mr.
Gilpin must be found, without a reasonable doubt, to have
acted with the requisite mental state.
Offered instruction no. 19 was an attempt to inform the
jury that the mental state of the victims does not establish
the mental state of the defendant, that the mental state of
defendant must be proved beyond a reasonable doubt. We
conclude that other instructions given by the court properly
stated the law as to mental state. We hold that the given
instructions as a whole properly tendered the case to the
jury. State v. Bingham (Mont. 1987), 745 P.2d 342, 349, 44
St.Rep. 1813, 1820-21. We therefore affirm the District
Court's refusal of defendant's offered instructions.
VI
Was the evidence sufficient to convict the defendant?
We have already set forth the standard of review for
sufficiency of the evidence in a criminal case, under Issue
IV. We concluded that any rational trier of fact could have
found the essential element of "sexual contact". Section
45-5-502(l), MCA, also requires the State to prove the
defendant "knowingly" subjected the girls to sexual contact.
Mr. Gilpin's argument is that the State produced no evidence
to corroborate the girls' testimony, and therefore could not
prove its case beyond a reasonable doubt. This Court, in
Just, 602 P.2d at 962, stated the rule in Montana:
[I]n sex offense cases in Montana, the victim's
testimony does not need to be corroborated. State
v. Metcalf (1969), 153 Mont. 369, 378, 457 P.2d
453, 458; State v. Gaimos, 53 Mont. at 126, 162 P.
at 599.
This rule applies to testimony of a child victim as well.
State v. Howie (Mont. 1987), 744 P.2d 156, 159, 44 St.Rep.
1711, 1716. At trial the girls testified concerning Mr.
Gilpin's conduct. Through this and other testimony, the jury
was asked to determine whether Mr. Gilpin knowingly subjected
the girls to sexual contact. He claims that it is his testi-
mony against the girls' testimony. The court gave instruc-
tion no. 7 to the jury at Mr. Gilpin's request. It read as
follows:
As a matter of law, where two witnesses testi-
fy directly opposite to each other on a material
point and are the only ones that testify on that
same point, you are not bound to consider the
evidence evenly balanced or the point not proved;
you may regard all the surrounding facts and cir-
cumstances proved on the trial and give credence to
one witness over the other if you think the facts
and circumstances warrant it.
After review of the record, including the trial transcript,
we hold that a rational trier of fact could have found that
Mr. Gilpin knowingly subjected the girls to sexual contact.
VI I
Did the court err by admitting, at the sentencing hear-
ing, evidence of other acts?
Mr. Gilpin objects to two letters contained in the
sentencing file. One letter was written by a boy who claimed
his friend was molested by Mr. Gilpin while in a swimming
pool. The other letter was written by the boy's mother. Mr.
Gilpin objects because he had no opportunity to cross-examine
these witnesses. In Williams v. New York (1949), 337 U.S.
241, 250, 69 S.Ct. 1079, 1084, 93 L.Ed. 1337, 1343-44, the
United States Supreme Court discussed this concern:
We must recognize that most of the information now
relied upon by judges to guide them in the intelli-
gent imposition of sentences would be unavailable
if information were restricted to that given in
open court by witnesses subject to cross-examina-
tion. And the modern probation report draws on
information concerning every aspect of a defen-
dant's life.
As the State points out, the defendant had an opportunity to
rebut, deny, or explain this incident, thus his due process
right was not violated. See State v. Orsborn (1976), 170
Mont. 480, 555 P.2d 509.
[Tlhe right of cross-examination at a presentence
hearing is a discretionary matter of the trial
court and will not be overruled without a showing
of abuse of that discretion.
State v. Trangsrud (1982), 200 Mont. 303, 307, 651 P.2d 37,
39; see also S; 46-18-113 (I), MCA.
Mr. Gilpin also objects to testimony at the hearing by a
13 year old girl who reported an incident involving him. He
claims that although he had the opportunity to cross-examine
the witness, he had no opportunity to prepare. We note,
however, that Mr. Gilpin did not request a continuance to
allow for preparation, although at the sentencing hearing,
the court offered defense counsel that opportunity. Mr.
Gilpin failed to request a continuance, and we will not
r e v i e w t h e m a t t e r now a s i t i s r a i s e d f o r t h e f i r s t t i m e on
appeal. Trangsrud, 651 P.2d a t 40. W hold t h a t t h e D i s -
e
t r i c t C o u r t d i d n o t err by a d m i t t i n g t h e e v i d e n c e .
VIII
Did t h e c o u r t err by s e n t e n c i n g d e f e n d a n t t o two c o n s e c -
u t i v e terms?
Lastly, Mr. Gilpin asserts that the alleged incidents
a r o s e o u t o f t h e same t r a n s a c t i o n o r e v e n t ; h e n c e , h e s h o u l d
n o t be subjected t o consecutive t e r m s . Our r e v i e w o f the
D i s t r i c t C o u r t ' s Judgment and Commitment shows t h a t t h e c o u r t
properly considered the factors listed in S 46-18-101 ( 3 ) ,
MCA. W e a l s o n o t e t h a t t h e s e n t e n c e imposed f a l l s w i t h i n t h e
l e g a l l i m i t s under S 45-5-502(3), MCA. Therefore, w e hold
that the District Court did not abuse its discretion in
sentencing. S t a t e v. Almanza (Mont. 1987), 746 P.2d 1089,
1091, 4 4 St.Rep. 2064, 2067.
Affirmed.