No. 87-106
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
THE STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
LEONARD PETER LAMPING,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis And Clark,
The Honorable Thomas M. McKittrick, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Edmund F. Sheehy, Jr., Cannon and Sheehy; Helena, MT
For Respondent:
Honorable Mike Greely, Attorney General, Helena, MT
Mike McGrath, County Attorney, Helena, MT
Carolyn Clemens, Deputy County Attorney, Helena, MT
Submitted on Briefs: February 25, 1988
Decided: March 29, 1988
Clerk
Mr. Justice William E. Hunt, Sr. delivered the Opinion of the
Court.
Leonard Peter Lamping, the defendant, was convicted of
sexual intercourse without consent by jury trial in the
District Court of the First Judicial District, Lewis and
Clark County. Defendant appealed.
We affirm.
The issues raised on appeal are:
1. Whether the District Court erred in denying the
defendant's motion for a new trial?
2. Whether sufficient evidence exists to sustain the
defendant's conviction for sexual intercourse without
consent?
On October 29, 1986, Leonard Peter Lamping, the
defendant, was convicted under B 45-5-503(1) and ( 3 ) , MCA, of
sexual intercourse without consent arising from a March 31,
1986 incidence. At the time of the act, Lamping was 45 years
of age and the victim was 15 years of age. Lamping was
sentenced to serve 25 years in prison with 10 years
suspended.
The series of events which lead to the felonious act
began on March 30, 1986 when the victim and a female
companion ran away from home. The two girls spent the day in
the Scratch Gravel Hills. Later that day, the girls received
a ride into the Helena city limits and went to the home of
the victim's boyfriend. The boyfriend was not at home, so
the girls went to the apartment building which housed an
acquaintance, Rick, and also the defendant, Lamping. The
girls decided to remain in the hallway but were later invited
into the two-room apartment by Lamping. The evening of March
30, 1986, the girls slept on the floor of the apartment which
housed, among others, the defendant Lamping.
The following day, March 31, 1986, the girls remained in
the apartment. The victim testified that early in the
evening she became tired and laid down on the bed located in
the front room. She further testified that Lamping then laid
down on the bed next to her and performed the sexual act.
Lamping testified that he did not perform any sexual acts on
the child nor touch her in an inappropriate way. He further
testified that he had laid down on the bed first and that the
victim then laid down next to him.
Fourteen other people were available to testify to what
they saw transpire between Lamping and the victim during the
early evening of March 31, 1986; to what actions the victim
took to escape Lamping; and to whether she appeared scared
during any of this time. At the trial, the State called five
out of the possible 14 witnesses they had listed. Among
those not called to testify was Kenneth Bennett.
The first issue raised on appeal is whether the District
Court erred in denying Lamping's motion for a new trial.
Lamping argues that Kenneth Bennett's proposed testimony was
newly discovered evidence upon which the District Court
should have granted him a new trial. Lamping had access to a
prepared police report that indicated Bennett's proposed
testimony, yet Lamping claims that the "exact nature" of
Bennett's proposed testimony was not known to him until after
the trial and conviction. In asserting his claim, Lamping
relies upon the State's decision not to call Bennett to
testify after the State served him with a subpoena. Lamping
argues that once he was aware that Bennett was served with a
subpoena he reasonably believed that Bennett would testify.
The State interviewed Bennett on October 27, 1986 and
decided not to have him testify because past experiences
proved he was an unreliable witness and because parts of his
testimony were cumulative. The District Court determined
that the State did not hide a witness from Lamping and that
Bennett's proposed testimony would be cumulative. The court
thus denied Lamping's motion for a new trial based upon
Lamping's claim of newly discovered evidence.
The District Court did not abuse its discretion in
refusing to grant a new trial. Section 46-16-702(1), MCA,
allows a district court to grant the defendant a new trial
"if required in the interest of justice." However,
applications for new trials are not favored when a defendant
has had ample opportunity to present his case. State v.
Pease (Mont. 1987), 740 P.2d 659, 664-65, 44 St.Rep. 1203,
1210; State v. Kutnyak (Mont. 1984), 685 P.2d 901, 909, 41
St.Rep. 1277, 1287; State v. Higley (Mont. 1980), 621 P.2d
1043, 1055, 37 St.Rep. 1942, 1955; State v. Greeno (1959),
135 Mont. 580, 586, 342 P.2d 1052, 1055. In the present
case, Lamping argues that the "exact nature" of Bennett's
proposed testimony was not available to him at the time of
trial. The record demonstrates that the State listed Bennett
as a witness; Lamping had access to the police report
indicating the nature of Bennett's proposed testimony; and
Lamping made little or no efforts to contact Bennett to
question him about his statement to the police officer.
Lamping also made no efforts during the trial to call Bennett
after knowing the State was not going to call him.
The State does not have an obligation to call every
witness listed nor an obligation to reveal the "exact nature"
of a witness's testimony. The District Court found that the
State did not hide a witness from Lamping. The record
supports this finding and we conclude that Lamping had ample
opportunity to determine for himself the "exact nature" of
Bennett's testimony and to present his case. Thus, Lamping's
motion for a new trial is disfavored, but the application of
the factors listed in Greeno to the present case is required
to determine whether the District Court properly denied the
motion.
In Greeno, this Court sets forth six factors that
governs when a new trial, based on newly discovered evidence,
should be granted. The six factors are: (1) knowledge of
the evidence came after the trial; (2) lack of due diligence
is not the reason for not discovering the evidence earlier;
( 3 ) the evidence is so material that upon a new trial a
different result is likely; (4) - evidence - -
the is not
cumulative; (5) the witness whose evidence is allegedly
newly discovered must support the application for a new trial
by affidavit; and (6) the evidence must not merely tend to
impeach the character or credibility of a witness. Greeno,
135 Mont. at 586, 342 P.2d at 1055 (citing State v. Matkins
(1912), 45 Mont. 58, 68, 121 P. 881, 885). The District
Court in this case held that Bennett's proposed testimony was
cumulative. A review of the record supports this finding.
The record shows that if Bennett had been called to
testify, the relevant parts of his testimony would have
included that, while he was in the apartment, he did not see
Lamping and the victim under any covers while they were on
the bed and he never saw the victim in her underwear; that he
assisted the victim out of the bathroom window; and that she
was not bleeding when she escaped the apartment nor did she
appear scared when she escaped. In this case, four or more
witnesses testified to each of the above facts. Parts of the
witnesses' testimony harmonized with Bennett's proposed
testimony and other parts contradicted it.
Lamping contends that Bennett's proposed testimony is
not cumulative because three statements of the proposed
testimony completely contradicts all of the other witnesses'
testimony and that such testimony would allow a jury to
believe Lamping's testimony and reject the victim's and other
witnesses' testimony. Consequently, Lamping argues that
Bennett's proposed testimony would probably produce a
different result.
As long ago as 1912, in State v. Matkins (1912), 45
Mont. 58, 121 P. 881, this Court adopted the six factors that
governs when a motion for a new trial is granted. In that
decision, we expounded upon the requirement that the evidence
must not be cumulative. More specifically, we stated that
the alleged newly discovered evidence must not speak to facts
to which there was evidence at the trial. Matkins, 45 Mont.
at 68, 121 P. at 885. In the present case, four or more
witnesses have already testified on all of the statements to
which Bennett proposes testimony. While the statements may
be contradictory to the evidence already in existence, this
does not preclude such statements from being cumulative. The
reasoning being that:
[i]t is often the case that the sense of loss
arouses [the appellant] to the diligent activity
which he should have put forth before the trial.
By importunity he then interests his friends and
through them brings to his support evidence which,
if not false, is only cumulative or impeaching in
character, and the efficacy of which to produce a
different result is speculative and dependent
entirely upon the personal characteristics of
another jury.
Matkins, 45 Mont. at 67, 68, 121 P. at 885.
We hold that Bennett's proposed testimony is cumulative
of facts already in existence. The District Court did not
abuse its discretion when it denied Lamping's motion for a
new trial based upon the alleged newly discovered evidence
when the court found such evidence cumulative.
The second issue raised on appeal is whether sufficient
evidence exists to sustain Lamping's conviction for sexual
intercourse without consent. The substantial evidence test
controls when the appellant alleges the jury's verdict is not
sustainable because of insufficient evidence. State v. Oman
(Mont. 1985), 707 P.2d 1117, 42 St.Rep. 1565; State v.
Berklund (Mont. 1985), 704 P.2d 59, 42 St.Rep. 1147. Under
this test, the verdict is sustained if a reasonable person
might accept the evidence as adequate to support the
conclusion when the evidence is viewed in a light most
favorable to the prevailing party. Oman, 707 P.2d at 1120,
42 St.Rep. at 1568; Berklund, 704 P.2d at 60, 42 St.Rep. at
1148-49. Only when the evidence is so inherently incredible
that a reasonable person would not accept it as true, will
this Court set aside the verdict. Oman, 707 P.2d at 1120, 42
St.Rep. at 1568; State v. Radi (1978), 176 Mont. 451, 461,
578 P.2d 1169, 1176; State v. Crockett (1966), 148 Mont. 402,
407, 421 P.2d 722, 724-25.
To support Lamping's argument that the victim's
testimony is so inherently incredible that no reasonable
person ought to accept it as true, defense counsel contends
that it is inherently incredible that a 45-year old man could
have performed sexual intercourse on a 15-year old girl with
other people in the apartment; that if such an act occurred,
the victim could have protested loud enough to attract the
attention of others in the apartment; and that it is
inherently incredible that other people in the apartment had
difficulty getting the victim out of the apartment over the
threats of Lamping.
This Court will not reexamine the evidence when
substantial evidence exists to support the verdict. Here,
Lamping, the victim, and several other witnesses testified to
the events that occurred during the evening of March 31,
1986. Parts of the witnesses' testimony supported the
victim's testimony, other parts contradicted it and supported
Lamping's. The weight of the evidence and the credibility of
the witnesses is exclusively within the province of the trier
of facts. When conflicting evidence exists, the jury
determines which evidence prevails. Berkland, 704 P.2d at 60,
42 St.Rep. at 1149; State v. Green (Mont. 1984), 685 P.2d
370, 371-72, 41 St.Rep. 1562, 1564. The defense counsel also
argues that the only evidence that established the sexual
intercourse element and that the victim was bleeding is the
victim's own testimony. This Court has consistently held
that a conviction of sexual intercourse without consent is
sustainable based entirely on the uncorroborated testimony of
the victim. State v. Maxwell (1982), 198 Mont. 498, 503, 647
P.2d 348, 351; State v. Metcalf (1969), 153 Mont. 369, 378,
457 P.2d 453, 458.
Upon reviewing the record, w/ hold that substantial
e
evidence exists to support the j