No. 90-162
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
plaintiff and Respondent,
KERMIT MEDICINE CLOUD KAO,
Defendant and Appellant.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. ~ c N e i l ,Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Benjamin R. Anciaux, Esq., Polson, Montana
For Respondent:
Hon. Marc Racicot, Attorney General; Jennifer
Anders, Assistant Attorney General; Helena, Montana
Larry J. Nistler, County Attorney, Polson, Montana
Submitted on Briefs: September 6, 1990
C,
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-F Decided: November 8, 1990
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Kermit Medicine Cloud Kao appeals his felony conviction of
incest, following a jury trial in the Twentieth Judicial District,
Lake County. We affirm.
Kao raises the following issues:
1. Did the District Court err in allowing hearsay testimony
from two witnesses?
2. Did sufficient evidence exist in the record to support a
guilty verdict?
3. Did the District Court improperly allow evidence of Kao's
prior crimes, wrongs, or acts?
4. Did the District Court improperly exclude certain evidence
offered by Kao?
5. Did the District Court deny Kao a fair trial under the
doctrine of cumulative error?
Kermit Medicine Cloud Kao married Frances Medicine Cloud Kao
on March 3, 1983. At the time of their marriage, Frances had a
five-year-old daughter, E.M. E.M. lived with her natural father,
Tim Morris, in Helena, but through the years, she visited the Kaos
in Missoula and later lived with the Kaos in Turtle Lake.
While living at the Kao residence in Turtle Lake, eleven-
year-old E.M. ran away from home on two separate occasions, once
around February 21, 1989 and once on March 11, 1989. Following
the first run-away incident, the Lake County Sheriff's Office
referred E.M. to the Lake County Department of Family Services
2
(DFS). During a counseling session with Linda Noble of DFS, E.M.
disclosed that she had been sexually abused by her stepfather, Kao.
E.M. also told her mother, Frances, of the abuse incident.
Linda Noble promptly notified the Lake County Sheriff's Office
of the abuse incident; the Sheriff's Office, in turn, interviewed
E.M. In a statement made to Officer Paula Gill on March 6, 1989,
E.M. stated that Kao had touched her vaginal area during Christmas
vacation in 1985 when the Kaos lived in Missoula. E.M. was eight
years old at that time.
Meanwhile, Frances wrote a letter to Kao, who was then serving
a sentence for an unrelated matter in Montana State prison. In her
letter, Frances told Kao that E.M. had recently run away from home
on two occasions and that E.M. was being difficult to manage.
Frances, however, did not mention any allegations of sexual abuse.
Kao immediately responded to Frances1 concerns in a letter
dated March 14, 1989. Kao's letter, in relevant part, stated:
The problems you are having with [E.M.] extend
from me. She may have already been messed up,
but I did not help matters at all. I turned
it into a very sinful deed. It started in
Missoula. I touched her intimately and I told
her not to tell. That is why I was so mean
with her, to scare her so she wouldn't tell.
Then this last time, at Turtle Lake, I knew it
was wrong and I tried to ignor [sic] her. I
tried really hard, and I almost made it. But
I touched her again, just a quick feel, and I
knew I was lost. It happened and I really
felt dirty. I wanted to tell you, but the
fact is I didn't and because I didn't I may
have destroyed everything. Poor [E.M.], I am
so sorry. Frances, I am sorry! And it comes
from my heart. I do still have one.
On May 24, 1989, Kao was charged by information with one count
of incest. At his one-day trial on November 20, 1989, Kao
testified that he did not sexually abuse E.M.--he stated otherwise
in his letter only to get E.M. removed from Frances1 residence so
his two natural children, who also reside with Frances, would no
longer be exposed to the troubled E.M. E.M. could not testify as
she was undergoing inpatient psychiatric therapy at Rivendell
Center in Butte at the time of the trial.
The jury found Kao guilty of incest as charged. On December
15, 1989, the District Court sentenced Kao to ten years imprison-
ment for the charge of incest and ten years imprisonment for being
a persistent felony offender, both sentences to run consecutively.
The court also ordered Kao to complete the sexual offender
treatment program and designated him a dangerous offender for
parole purposes. From this conviction, Kao appeals.
1. Did the District Court err in allowing hearsay testimony
from two witnesses?
The District Court allowed Linda Noble of DFS and Lake County
Officer Paula Gill to testify from their personal knowledge
regarding 1) E.M. Is unavailability to testify, and, 2) the time-
frame of E .M.Is charges as E.M. stated to them. The District Court
restricted their testimony to these two areas, and stated that any
specific details of the alleged crime which E.M. related to Noble
and Gill would not be allowed into evidence. Kao argues that their
4
testimony, however limited, was still hearsay, and unexcepted by
Montana Rule of Evidence 804(b) (5) because the court failed to make
certain preliminary findings under State v. J.C.E. (1988), 235
Mont. 264, 767 P.2d 309.
We see no error in the District Court's ruling, but any
possible error is harmless; Kaols conviction will stand based on
his admission in his letter as discussed below.
2. Did sufficient evidence exist in the record to support a
guilty verdict?
The test for determining sufficiency of the evidence is
"whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt."
Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789,
61 L.Ed.2d 560, 573; restated in State v. Wilson (Mont. 1981), 631
P.2d 1273, 1278-79, State v. Geyman (1986), 224 Mont. 194, 195-
96, 729 P.2d 475, 476, and State v. Gilpin (1988), 232 Mont. 56,
68, 756 P.2d 445, 451. Kao argues that if this Court strikes the
testimony of Noble and Gill, then the evidence in the record would
be insufficient to support a guilty verdict. We disagree. Even
if the testimony of Noble and Gill were stricken from the record,
Kaolsletter independently establishes that Kao committed the crime
of incest beyond a reasonable doubt.
Section 45-5-507, MCA, provides, in part, that a person
commits the crime of incest when that person knowingly has sexual
contact with a stepchild. Section 45-2-lOl(60), MCA, defines
sexual contact as:
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.
This Court has liberally construed what constitutes "touching
of the sexual or other intimate parts of the person." See State
v. Gilpin (1988), 232 Mont. 56, 68-69, 756 P.2d 445, 452 (rubbing
buttocks and inner thigh) ; State v. Howie (1987), 228 Mont. 497,
503, 744 P.2d 156, 159 (rubbing belly and between legs); State v.
Weese (1980), 189 Mont. 464, 467-68, 616 P.2d 371, 374 (rubbing
belly and chest of prepubescent girl).
Here, Kao's admission in his letter clearly satisfies the
elements of incest:
It started in Missoula. I touched her in-
timately and I told her not to tell. That is
why I was so mean with her, to scare her so
she wouldn't tell. Then this last time, at
Turtle Lake, I knew it was wrong and I tried
to ignor [sic] her. I tried really hard, and
I almost made it. But I touched her again,
just a quick feel, and I knew I was lost. It
happened and I really felt dirty.
Although Kao, in his letter, excludes what part of E.M.'s body he
intimately touched, this exclusion does not negate Kaols admission
that his touching was intimate. This letter alone is sufficient
to satisfy, beyond a reasonable doubt, that Kao knowingly had
sexual contact with E.M, and thereby is guilty of incest.
3. Did the District Court improperly allow evidence of Kaols
prior crimes, wrongs, or acts?
Montana Rule of Evidence 404(b) provides, in part:
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.
Kao argues that the District Court erred when it allowed into
evidence the fact that Kao was in prison in March, 1989, when he
wrote the letter to his wife, which stated that he intimately
touched E.M. Kao further argues that this "other crimesl1 evidence
violated the notice requirements of State v. Just (1979), 184 Mont.
262, 602 P.2d 957. Kaols imprisonment was mentioned by the State
three times at trial: during opening statement, during direct
examination of Frances, and during closing argument. However,
Kaolsunderlying offense for his imprisonment was never mentioned.
Kaolsargument is without merit, procedurally and substantive-
ly. Procedurally, Kao waived appellate review of this issue
because he failed to timely object to the admittance of this fact
when it was mentioned during the various times at trial. See 8 8 46-
20-104 and -701, MCA; State v. Kills on Top (Mont. 1990), 793 P.2d
1273, 1299, 47 St.Rep. 984, 1012; State v. Ungaretti (1989), 239
Mont. 314, 319, 779 P.2d 923, 926.
Furthermore, Kaols argument lacks substantive merit as the
fact that Kao was in prison when he wrote the letter was not
introduced to prove the character of Kao "in order to show that he
acted in conformity therewith" under Montana Rule of Evidence
404(b). Rather, the evidence was submitted during the direct
examination of Frances to establish the authenticity of Kaols
letter. And the references to Kaols imprisonment during the
State's opening and closing statements were insignificant and did
not prejudice Kao in light of the entire record. We therefore hold
that the District Court properly allowed the fact that Kao was in
prison when he wrote his letter admitting he intimately touched
E.M.
4. Did the District Court improperly exclude certain evidence
offered by Kao?
During trial, Kao testified that he was aware that Tim Morris,
E.M.'s natural father, had sexually abused E.M. The State informed
the court that any reference to sexual abuse by Morris was
prohibited by 5 45-5-511(4), MCA. The District Court thereby
ordered Kaolstestimony stricken from the record and instructed the
jury to disregard it.
Section 45-5-511(4), MCA, provides:
No evidence concerning the sexual conduct of
the victim is admissible in prosecutions under
this part except:
(a) evidence of the victim's past sexual
conduct with the offender;
(b) evidence of specific instances of the
victim's sexual activity to show the origin of
semen, pregnancy, or disease which is at issue
in the prosecution.
Kao argues that this evidence should have been admitted to
establish that E.M.'s problems stemmed from additional sources
besides Kao. Kaols argument lacks merit and is a clumsy attempt
to reduce his own culpability by casting blame on another.
Clearly, § 45-5-511(4), MCA, provides no exception to warrant the
admittance of this evidence to establish that another person had
sexually abused E.M.
Kao further argues that this evidence is admissible under
Montana Rule of Evidence 404(a)(2), which allows ll[e]vidence of a
pertinent trait of character of the victim of the crime offered by
an accused. . . .I1 Kao argues that this evidence establishes that
E.M. had the pertinent character trait of accusing others of
sexually abusing her. Kaols assertion is unfounded and runs
contrary to the intent of 45-5-511(4), MCA, which prohibits
evidence regarding E.M.'s sexual conduct.
Lastly, Kao argues that this evidence is admissible under
Montana Rule of Evidence 404(b), the "other crimes" exception.
Again, Kaols argument lacks merit as the "other crimes" involved
allege sexual conduct, which again, is specifically prohibited by
5 45-5-511(4).
5. Did the District Court deny Kao a fair trial under the
doctrine of cumulative error?
"The doctrine of cumulative error 'refers to a number of
errors which prejudice defendant's right to a fair trial. State
v. Ottwell (1989), 239 Mont. 150, 157, 779 P.2d 500, 504 (citations
omitted). Kao asserts that the District Court cumulatively erred
by 1) allowing the fact that Kao was incarcerated when he wrote his
letter admitting that he intimately touched E.M., 2) disallowing
Kao's testimony regarding alleged sexual abuse of E.M. by Tim
Morris, and, 3) not dismissing the charges against Kao following
the State's case-in-chief or following Kao's case-in-chief.
Because we have held that the District Court, 1) properly allowed
the fact that Kao was incarcerated when he wrote his letter, and
2) properly disallowed any evidence regarding alleged sexual abuse
to E.M. by Tim Morris, we hold that the doctrine of cumulative
error is inapplicable to this case.
Affirmed.
d m r d
Chief Justice
We concur: