No. 90-342
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
MARVIN McLAIN,
Defendant and Appellant.
APPEAL FROM: District Court of the ~wentiethJudicial District,
In and for the County of Lake,
The Honorable C. B. ~ c ~ e i l ,
Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Marc Racicot, Attorney General, State of
Montana, Helena, Montana; John Paulson, Assistant
Attorney General, State of Montana, Helena, Montana;
Larry J. Nistler, Lake County Attorney, Polson,
Montana; Robert S. Anderson, Deputy County Attorney,
Polson, Montana.
For Respondent:
Rebecca T. Dupuis, Polson, Montana.
Submitted on briefs: May 24, 1991
Decided: July 1 6 , 1 9 9 1
JUL 6 199'1
p.iERK OF SUPREPVIE COUP'
Justice R. C. McDonough delivered the Opinion of the Court.
Marvin McLain appeals from a jury verdict finding him guilty
of sexual assault in violation of 5 45-5-502, MCA. The District
Court of the Twentieth Judicial District, Lake County, sentenced
McLain to a term of twenty years with five years suspended. We
affirm.
The issues submitted for review are:
1) Whether the defendant was denied his constitutional right
to effective assistance of counsel;
2) Whether the District Court erred by allowing expert
testimony that the victim was credible in her reporting of the
sexual assault;
3) Whether there was sufficient evidence to support the
conviction.
In August of 1989, nine year old D.L. lived with her mother
at the Schultz Trailer Court in Pablo, Montana. The defendant,
Marvin McLain (McLain) lived with his two children in a nearby
trailer. Apparently, D.L. and McLain's children were playmates.
McLainls children's names are Amy, who was nine years old at the
time, and Jonathan, who was five years old.
On the morning of August 22, 1989, D.L.'s mother went to work
at a local discount store. D.L. was left in the care of two house
guests who were staying with D.L. and her mother. As usual, D.L.
played all day long with Amy and Jonathan.
McLain had just gotten off of work from the saw mill where he
worked the graveyard shift. He rested on his couch throughout the
day while the children played. In the early evening hours the
children began to bake sugar cookies at the McLain trailer. While
the cookies were in the oven, the children began to have a pillow
fight. According to D.L. , McLain joined in the fight and began
tickling and wrestling with the children. When Amy left
momentarily to check on the cookies, D.L. was on the living room
floor on her hands and knees. McLain was on top of her, also on
his hands and knees. At this point McLain began touching D.L. on
her right breast. The lltouchingll
continued and he squeezed her
breast several times and then touched her between her legs.
Later that evening, D.L.'s mother noticed that her daughter
appeared very upset. D.L. asked to sleep in her mother's bed and
after being tucked in told her mother about the sexual assault
perpetrated by McLain. D.L.'s mother then called the police and
reported the incident.
After D.L. was interviewed by a state social worker, McLain
was arrested and charged by information with sexual assault. The
witnesses listed in the information included an wunknownll
person
from the Ronan Mental Health Clinic. Dr. Edward Trontel of
Kalispell was then asked, by the state, to interview D.L. for the
purpose of determining whether she was capable of making a credible
report. On February 1, 1990, the State filed a motion seeking to
substitute Dr. Trontel for the llunknownw
witness. Defense did not
object and this motion was granted.
Trial commenced on February 22, 1990. At trial D.L. testified
and related the story as set out above. McLain, for his part,
denied touching D.L.'s breasts or vaginal area. He testified that
he remembered the pillow fight but did not participate in it. He
further testified that he caught Amy and D.L. smoking his
cigarettes on that day and that he had informed D.L. that he was
going to tell her mother. Amy was called as a rebuttal witness.
She testified that she and D.L. had not gotten caught or gotten
into any trouble for smoking cigarettes. She further testified
that she saw her father touch D.L. between the legs.
Following trial, the jury returned a verdict of guilty as to
the offense of sexual assault. On March 14, 1990, sentence was
imposed and the judgment of the court rendered. This appeal
followed.
I
McLain maintains that he was not afforded his right to
effective assistance of counsel and that his rights under the Sixth
Amendment to the United States Constitution and Article 11, Section
24 of the Montana Constitution were therefore violated. He asserts
two deficiencies in his attorney's performance: (1) that counsel
failed to object to the State's motion to substitute Dr. Trontel
as a witness, and (2) that counsel failed to interview Dr. Trontel
prior to trial.
The standard for reviewing claims of ineffective assistance
of counsel is well established. In evaluating such claims, this
Court applies the two prong test set forth in Stickland v.
Washington (1984), 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052.
This test requires that a criminal defendant show (1) that his
attorney's performance was deficient and (2) that counsel's
deficient performance prejudiced the defense to a degree which
denied the defendant a fair trial. State v. Boyer (1985), 215
Mont. 143, 695 P.2d 829. This test places a heavy burden upon a
defendant who seeks to reverse a judgment on such grounds. Under
Strickland, judicial scrutiny of counsel's performance must be
highly deferential and the reviewing court must indulge a strong
presumption that counselts conduct falls within the wide range of
reasonable professional assistance. Strickland, 466 U.S. at 689.
Failure to object to the adding of a name to the list of
witnesses three weeks before trial under this circumstance is not
deficient. Moreover, even if we assume that counsel's performance
was deficient when he failed to interview Dr. Trontel, it is by no
means apparent that these deficiencies prejudiced McLainls right
to a fair trial. In order to prevail on this issue, McLain must
show that a reasonable probability exists that but for his
counsel's deficient performance, the trial's outcome would have
been different. In light of the overwhelming evidence against him,
McLain cannot make this showing.
Both D.L. and McLainls daughter testified that he sexually
assaulted D.L. Admittedly, D.L.'s testimony contained some
discrepancies. The discrepancies mostly dealt with small details
such as how many times he touched her or which hand he used when
he fondled her breast. The inaccuracies contained in these
statements do not weaken her testimony. On the whole the evidence
presented against the defendant was overwhelming and, therefore,
any failure to interview by McLainls counsel concerning Dr.
Trontells testimony could not have contributed to his conviction.
There is no showing that Dr. Trontellstestimony was a surprise or
not anticipated.
Defendant next argues that the District Court erred when it
allowed Dr. Trontel to testify about whether D.L. was credible in
her reporting of this event. Previously, 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.
Generally, such testimony is admissible when the child testifies
at trial and the child's credibility is brought into question. See
State v. Harris (1991), 808 P.2d 453, 48 St.Rep. 62; State v.
Geyman (1986), 224 Mont. 194, 729 P.2d 475; State v. French (1988),
233 Mont. 364, 760 P.2d 86.
In the case now before us, both of these factors are present.
As stated earlier, D.L., a nine year old, testified at McLainls
trial. During trial, McLainls counsel tried to impeach her
testimony by setting forth inconsistencies between her testimony
and earlier statements made to investigators, psychologists and
lawyers. Dr. Trontel, in his testimony, explained the reasons why
such inconsistencies often occur in the context of child sexual
abuse. He also gave some guidance which would help the lay jurors
understand and judge D.L. Is testimony. His explanation and his
testimony were given in accordance with the rules set down in
Harris. We therefore find no reversible error on this issue.
I11
McLain maintains that the evidence presented at trial was
insufficient to support his conviction for sexual assault. His
argument is based upon the inconsistencies in the evidence and the
State's failure to show that his touching of the victim was for his
sexual gratification.
In reviewing these types of questions, this Court has followed
the rule set forth in Jackson v. Virginia (1979), 443 U.S. 307, 99
S .Ct. 2781, 61 L.Ed. 2d 560. This rule requires the reviewing court
to determine "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." State v. Wilson (1981), - Mont ., 631 P.2d 1273.
In this case, McLain argues that the evidence presented by the
State was so inconsistent that no rational jury could have found
him guilty. We disagree. As stated earlier, the alleged
inconsistencies are inconsequential. They dealt with only small
details of a stressful occurrence that involved a very young girl.
There was no discrepancy involving any of the major aspects of the
occurrence. In general D.L.Is testimony was consistent and
believable. Furthermore it was supported, without any significant
differences, by McLainls daughter Amy.
McLain further contends that the evidence is not sufficient
to support a finding that the touching of D.L. was for his sexual
gratification. In State v. Gilpen (1988), 232 Mont. 56, 756 P.2d
445, we held that a defendant's intent to gratify his sexual desire
could be inferred from his conduct. Given the testimony that
McLain pinched and stroked D.L.'s private areas several times, the
jury's inference of his intent was reasonable. Furthermore, there
was testimony that McLain told D.L. not to tell her mother about
his physical contact with her. This evidence lends further support
to the jury's verdict.
Af firmed. /
We Concur: A