State v. Goodwin

No. 90-349

IN THE SUPREME COURT OF THE STATE OF MONTANA
1991

STATE OF MONTANA,

v.
Plaintiff, Respondent,
and Cross-Appellant,
FILED
JUN 11 1991
DARWIN DALE GOODWIN,
Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable Joel G. Roth, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Patrick F. Flaherty, Great Falls, Montana
For Respondent:
The Honorable Marc Racicot, Attorney General,
Jennifer Anders, Assistant Attorney General,
Helena, Montana; Patrick L. Paul, Cascade
County Attorney, Great Falls, Montana

Submitted on Briefs: May 9, 1991
Decided: June 11, 1991
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
On August 14, 1989, the State of Montana filed an information
charging the defendant, Darwin Dale Goodwin, with two counts of
sexual intercourse without consent, and one count of felony
assault. The alleged victim of all three counts was his daughter,
Dawn Goodwin. Following a jury trial, which commenced on
February 26, 1990, the jury returned its verdict, finding the
defendant guilty of one count of sexual intercourse without
consent, one count of misdemeanor sexual assault, and one count of
felony assault. The defendant was sentenced to five years in the
Montana State Prison for his conviction of sexual intercourse
without consent. However, all but the first 30 days of that
sentence was suspended. He was ordered to serve the first 30 days
of his sentence in the Cascade County Jail. He was sentenced to
terms of imprisonment for six months, and five years for the
remaining misdemeanor and felony convictions, respectively.
However, both of those prison terms were suspended. The defendant
appeals from his conviction on all three counts. The State has
cross-appealed from the sentence imposed on the defendant. We
affirm the jury's verdict and the sentence imposed by the District
Court.
The issues raised by the defendant, as rephrased by this
Court, are:
 1. Did the District Court err when it permitted testimony
from the psychologist who interviewed the defendant pursuant to
court order in a related "youth in need of care" proceeding?
2. Did the trial court err by refusing to receive testimony
of the victim's grandmother, which was offered for the purpose of
impeaching the victim's testimony?
3. Did the court improperly instruct the jury regarding the
definition of I1withoutconsent1I?
4. Did the court improperly instruct the jury regarding the
meaning of I1proof beyond a reasonable doubt"?
5. Should the District Court have granted a new trial based
upon evidence discovered by the defendant subsequent to trial?
6. Considering the totality of circumstances, was the
defendant denied a fair trial?
The State raises the following issue on appeal:
1. Did the District Court err when it applied the exception
found in 5 46-18-222 (5), MCA, to the mandatory two-year sentence
for sexual intercourse without consent?
FACTUAL BACKGROUND

The defendant, Darwin Goodwin, was employed by the Montana
State Civil Air Patrol, and stationed at Malmstrom Air Force Base
near Great Falls, Montana. His daughter, Dawn Goodwin, testified
to a series of events that occurred in February 1989 while she was
a 16-year-old high school student living with her father. These
events formed the basis of the charges against the defendant.
 Dawn testified that on or about February 11 or 12 her father
instructed her to go to her room, and to clean her room and then
herself. After she cleaned her room he inspected it and told her
to shower. She testified that after she showered he came into the
room and inspected her by sticking his hand inside her pants and
inserting his finger into her vagina without her permission. She
testified that she submitted to that inspection out of fear that
if she did not allow him to do so she would be punished physically.
She testified to a long history of prior physical abuse by her
father and her stepmother. This incident formed the basis for
Count I1 of the information filed against the defendant on
August 14, 1989. Count I1 charged the defendant with sexual
intercourse without consent in violation of 5 45-5-503, MCA.
At trial, the defendant denied that incident occurred.
However, during an interview conducted by Great Falls Policeman,
Bob Dykeman, during February 1989, the defendant admitted that the
incident had occurred, but explained that he simply wanted to
assure himself that his daughter was clean.
Dawn testified that on February 19 of that same year she was
having a conversation with her father and stepmother during which
the subject of suicide was discussed. During the conversation he
went to his bedroom, retrieved a pistol, returned with the pistol,
and told her to beg for her life. She testified that he started
to raise the gun and point it at her, but was stopped by her
stepmother. According to her testimony, he was very angry at the
time. She was frightened and thought that he really might shoot
her. This incident formed the basis for Count I11 of the State's
information charging the defendant with felony assault in violation
of 5 45-5-202(2) (b), MCA.
The defendant admitted that the incident with the gun
occurred, but testified that it was in response to his daughter's
statement that she felt like committing suicide, and that he was
simply trying to determine whether she was serious. He stated that
in the event he determined she was serious it was his intention to
get counseling for her. He further testified that when his wife
grabbed his hand and asked him to put the gun down, he did so. He
denied pointing the gun at his daughter and telling her to beg for
her life. However, according to the testimony of Officer Dykeman,
when he interviewed the defendant Mr. Goodwin described the gun
incident in terms fairly consistent with his daughter's description
and said that he had been trying to frighten her.
The defendant's daughter testified that on February 21 she
returned home from school and met a friend at the gate to the Air
Force Base. After helping her friend to gain entry onto the base,
the friend drove her to a location near her home where she dropped
her off. Her father, having witnessed her arrival in an unfamiliar
car, told her to go to her room and take off her clothes. After
she did so, he came into the room, told her he thought she had been
"screwing around with guyslv1and inspected her physically by
inserting his finger into her vagina. After conducting this
inspection, he commented that she was ruining his sex life with
his wife and asked how about if he took it out on her. She told
him 11no.t8 He said "why not?" He then left the room. She
testified that when her father inspected her it was without her
permission. She was again in fear that if she did not permit him
to do so she would be physically punished, and she had the
impression that it was his intention to have sex with her. She
remained in her room that day until about 11 p.m., and then ran
away from home. This incident formed the basis for Count I of the
State's information charging the defendant with sexual intercourse
without consent in violation of 5 45-5-503, MCA.
During his testimony the defendant admitted this inspection.
He testified that he told his daughter to go to her room and that
when he arrived in her room he told her to take off her clothes.
He said that he explained to her that he wanted to know if she had
been I1screwing aroundIg1
and then took his finger and "swiped the
vagina." He also admitted that during the conversation he told her
that she had been vlscrewingup" his love life with his wife.
However, it was defendant's contention that this inspection was
conducted merely for disciplinary purposes, and not for the purpose
of sexual gratification.
I.
Did the District Court err when it permitted testimony from
the psychologist who interviewed the defendant pursuant to court
order in a related "youth in need of care" proceeding?
 After defendant's daughter ran away from home, she eventually
was referred to the Department of Family Services, and she advised
them of what had happened. Based upon that information, the
Department referred this matter to the Cascade County Attorney's
Office, which petitioned the District Court for temporary
investigative authority and protective custody of the defendant's
daughter. After a hearing, the District Court granted the State's
petition, placed the defendant's daughter in foster care, and
ordered that the defendant complete a sex offender evaluation
through the Sexual Assault Treatment Program in Helena. That
evaluation was performed by Ron Silvers, a licensed professional
counselor in the State of Montana. Silvers does not have a degree
in clinical psychology and does not consider himself a
psychologist. As part of that evaluation, the defendant was
referred to Ronald Cutting, who administered a polygraph
examination to the defendant.
Prior to trial, both Silvers and Cutting were listed as
witnesses by the State. On January 30, 1990, the defendant moved
to exclude Silvers' testimony for the reason that it would violate
the patient-psychologist privilege provided for in 5 26-1-807, MCA,
and moved to exclude Cutting's testimony for the reason that
polygraph evidence is inadmissible under Montana law. On
February 23, 1990, the District Court ruled that the State would
not be allowed to call Silvers or Cutting during its primary case,
but left the door open for their testimony during rebuttal if the
defendant called his own psychologist, or through his own testimony
placed his state of mind in issue.
The defendant's attorney, however, did not wait for rebuttal.
He called both Silvers and cutting as witnesses during the
defendant's case.
In addition to the fact that he was not a psychologist,
Silvers testified that at the time of trial he had no ongoing
relationship with the defendant, and that in the strict clinical
sense it was his opinion that he had never had a client and
counselor relationship with Darwin Goodwin. He saw him as part of
a court ordered evaluation and did not acknowledge that there was
any confidentiality attendant to their relationship. He pointed
out that, in fact, it was necessary for the defendant to sign
documents authorizing release of information to anyone who had
anything to do with this case. He testified that what he did was
not a standard psychological evaluation.
Defendant's counsel then, over the objection of the county
attorney, asked Silvers a number of questions about the defendant's
referral to a polygraph examiner and the reliability of polygraphy.
He had Silvers identify questions which he had prepared for the
polygraph examiner, and had them admitted into evidence. The
county attorney made it clear that she felt this evidence was
inadmissible, and had no intention of offering it.
The only testimony given by Silvers regarding communications
made by the defendant to him, was the following:
 1. He testified that initially the defendant denied
inspecting his daughter following her shower (the inspection which
formed the basis for Count 11), but eventually simply said that he
could not recall it.
2. He testified that the defendant did describe to him the
second inspection (the acts which formed the basis for Count I),
but that he gave no specific details.
3. He testified that the defendant was quite adamant that
he had no sexual intent in any of the actions that he took against
his daughter.
In essence, the testimony that Silvers gave neither added to
nor contradicted the testimony given by the defendant, and in no
way contributed to the defendant's conviction. Any evidence
regarding polygraphy was offered by the defendant's own attorney
over the objection of the county attorney, and therefore, any
prejudicial effect therefrom was waived by the defendant.
On appeal, the defendant raises several objections to the
testimony of Ron Silvers:
1. He contends that Silverst relationship to the defendant
should be treated as that of a psychologist and a patient, and
therefore, privileged pursuant to B 26-1-807, MCA;
2. He contends that admission of the defendant's
conversation with Silvers violates the defendant's Fifth Amendment
right against self-incrimination pursuant to the United States
Supreme Court's decision in Estelle v. Smith, 451 U.S. 454, 68
L.Ed.2d 359, 101 S.Ct. 1866 (1981);
3. He contends that Lori Clark, the social worker for the
Department of Family Services, entered into an agreement with the
defendant to the effect that any evaluation that was done would be
limited to the "youth in need of care" case; and
4. Defendant contends that he did not waive his right to
object to this testimony by calling the witness himself pursuant
to this Court's decision in Beil v. Mayer, 242 Mont. 204, 789 P.2d
1229 (1990).
In Estelle v. Smith, the defendant was charged with murder,
and prior to trial was ordered to undergo a psychiatric examination
to determine his competency to stand trial. The defendant was
tried by a jury and convicted. Under Texas law a second trial was
then required prior to the imposition of a death sentence. At the
second trial, the state called as a witness the psychiatrist who
had conducted the pretrial examination, and through that testimony
established that defendant would pose a future threat to society.
The U.S. Supreme Court found that use of that testimony violated
the defendant's Fifth Amendment right to be free from compelled
self-incrimination. However, it was critical to the Supreme
Court's conclusion that the statements made by that defendant in
that case were "unwarned statements made in a post-arrest custodial
setting.'' Smith, 68 L.Ed.2d at 372. The Supreme Court added that:
 'lVolunteeredstatements ...
are not barred by the Fifth
Amendment, but under Miranda v. Arizona, supra, we must
conclude that, when faced while in custodv with a court-
ordered psychiatric inquiry, respondent's statements to
Dr. rigs son were not ''given freely and voluntarily
without any compelling influence^^^ and, as such, could
be used as the State did at the penalty phase only if
respondent had been apprised of his rights and had
knowingly decided to waive them.
Smith, 68 L.Ed.2d at 373 (emphasis added).
Since Miranda v. Arizona, 384 U.S. 436, 467, 16 L.Ed.2d 694,
86 S.Ct. 1602 (1966), and its progeny, custodial interrosation has
always been a significant element of an involuntary statement in
violation of the Fifth Amendment to the United States Constitution.
In this case, defendant's remarks to Ron Silvers were not made
while in custody. They were made after he was represented by an
attorney during appointment with counselor, which was made
with the knowledge of his attorney, at a time when his attorney
could have been present, had he chosen to be there. This case is
not controlled by Smith.
This case is more similar to Buchanan v. Kentucky, 483 U.S.
402, 97 L.Ed.2d 336, 107 S.Ct. 2906 (1987). In that case, the
defendant was also accused of murder. At trial, he attempted to
establish the affirmative defense of "extreme emotional
disturbance," and called on his behalf a social worker who read
excerpts from several reports and evaluations dealing with the
defendant's mental condition. On cross-examination, the prosecutor
sought to have the same social worker read from a psychological
evaluation done by a court-appointed psychiatrist who examined the
defendant, pursuant to court order, to determine his competency to
stand trial. The defendant objected to that evidence on the
grounds that it would violate his Fifth and Sixth Amendment rights
because counsel had not been present during the evaluation and the
defendant had not been informed that the results could be used
against him at trial.
The evidence was admitted and the defendant was convicted.
When this issue was subsequently considered by the U.S. Supreme
Court, that defendant, as the defendant in this case, relied on the
Court's decision in Smith. However, the Supreme Court
distinguished the Smith case on the following basis:
This case presents one of the situations that we
distinguished from the facts in S i h Here petitioner's
mt.
counsel joined in a motion for Dr. Lange's examination
pursuant to the Kentucky procedure for involuntary
hospitalization. Moreover, petitioner's entire defense
strategy was to establish the "mental status1'defense of
extreme emotional disturbance. Indeed, the sole witness
for petitioner was Elam, who was asked by defense counsel
to do little more than read to the jury the psychological
reports and letter in the custody of Kentucky's
Department of Human Services. In such circumstances,
with petitioner not taking the stand, the Commonwealth
could not respond to this defense unless it presented
other psychological evidence. Accordingly, the
Commonwealth asked Elam to read excerpts of Dr. Langels
report in which the psychiatrist had set forth his
general observations about the mental state of petitioner
but had not described any statements by petitioner
dealing with the crimes for which he was charged. The
introduction of such report for this limited rebuttal
purpose does not constitute a Fifth Amendment violation.
Buchanan v. Kentucky, 483 U.S. at 423-24.
In this case, the District Court stated that it would admit
the testimony of Ron Silvers for a limited purpose. The District
Court ruled that if the defendant placed his state of mind in issue
by calling his own psychologist as a witness or by testifying
directly that even though he had committed the acts complained of,
they were not committed for the purpose of sexual gratification,
then the State could call Silvers in rebuttal to contradict that
evidence. The District Court's ruling was squarely within the rule
established by the U.S. Supreme Court in Buchanan.
It was the defendant who called Silvers, and then asked about
communications made by the defendant to Silvers. To the extent
that Silvers1 testimony exceeded the purposes for which it was
originally allowed by the District Court, it was the fault of the
defendant, and he thereby waived any objection that he might have
otherwise asserted based on privilege or the Fifth Amendment.
Furthermore, there was nothing in Silverst testimony that was
prejudicial to the defendant. Silvers merely repeated what he was
told by the defendant; and the defendant told him the same thing
that he told the jury. He denied the incident following his
daughter's shower. He admitted the other inspection incident, but
stated that it was solely for the purpose of discipline and not for
the purpose of sexual gratification.
We conclude that pursuant to Buchanan, Silvers' testimony did
not violate the defendant's Fifth Amendment right to be free from
self-incrimination, and that because there is no reasonable
possibility that that testimony contributed to his conviction, it
is not necessary to discuss whether it was privileged or
inadmissible pursuant to the alleged agreement with the State. If
it had been inadmissible for either of those reasons, it would have
been, at most, harmless error. Brodniak v. State, 239 Mont. 110,
779 P.2d 71 (1989).

11.

Did the trial court err by refusing to receive testimony of
the victim's grandmother, which was offered for the purpose of
impeaching the victim's testimony?
The defendant was charged with two counts of sexual
intercourse without consent pursuant 9 45-5-503, MCA. Sexual
intercourse is defined at 5 45-2-101(61), MCA, as "penetration of
the vulva or anus of one person by any body member of another
person ... for the purpose of arousins or sratifyins the sexual
desire of either ~artv." (Emphasis added.)
Prior to trial, the defendant took the deposition of Ruby
Goodwin, who is the mother of the defendant and the grandmother of
Dawn Goodwin. She testified that subsequent to the acts complained
of, Dawn told her that she did not think her father had acted for
sexual gratification when he inspected her. The State objected to
this testimony on the grounds that it was inadmissible hearsay, and
that objection was sustained.
On appeal, the defendant asserts that the testimony from Ruby
Goodwin should have been admitted pursuant to Rule 613(b),
Mont.R.Evid., as a prior inconsistent statement.
 The State responds that pursuant to Rule 801(d) (1),
Mont.R.Evid., the prior out-of-court statement by a witness has to
be inconsistent with her trial testimony in order to form an
exception to the general exclusion of hearsay evidence found in
Rule 802.
During trial, in response to the defendant's cross-
examination, Dawn Goodwin gave the following testimony when asked
about her conversation with her grandmother:
Q. What explanation did you give to her for why you
ran away?
A. I told her about the sexual stuff and beatings and
everything else.
Q. Did you tell her that it was a sexual-type of
inspection?
A. I told her -- I didn't put a label on it like you
do. I just told her what had happened.

Q. You didn't tell her it was for discipline as opposed
to a sex thing?
A. I don't remember. I don't think I did. I might
have, I don't know.
We conclude that Dawn Goodwin's statement to her grandmother,
as related by Ruby Goodwin, was not inconsistent with her trial
testimony. Therefore, it was properly excluded by the District
Court as hearsay evidence.

Did the court improperly instruct the jury regarding the
definition of gvwithout
consentw?
 The District Court's Instruction No. 15 to the jury defined
"without consentn as follows:
With regard to the offense of sexual intercourse without
consent, the term "without consentg1 means the victim is
compelled to submit by force or by threat of imminent
death, bodily injury, or kidnapping to be inflicted on
anyone.
Resistance by the victim is not required to show lack of
consent. Force, fear, or threat is sufficient alone to
show lack of consent.
The law requires only that the victim does not consent
and that she do all that her age, strength and attendant
circumstances make it reasonable for her to do in order
to manifest her objection.
The court's instruction includes language from 9 45-5-501,
MCA, which defines "without consent," but adds language from
9 45-5-511(7), MCA, which includes general language applicable to
sexual crimes.
The defendant contends on appeal that by including the
language from 9 45-5-511(7), MCA, the District Court improperly
diluted the State's burden of proof as established by this Court's
decision in State v. Thompson, 243 Mont. 28, 792 P.2d 1103 (1990).
When reviewing jury instructions, this Court must determine
whether the instructions, as a whole, fully and fairly present the
applicable law of the case. State v. Lernrnon, 214 Mont. 121, 129,
692 P.2d 455, 459 (1984). Here the instruction to which the
defendant objects was a direct statement of the law and we find
that it was not prejudicial to the defendant.
 The District Court's instruction was not inconsistent with
this Court's decision in Thompson, supra. In that case, we simply
held that a person could not be convicted of the offense of sexual
intercourse without consent unless "the victim is compelled to
submit by force or by threat of imminent death, bodily injury, or
kidnapping .... Thompson, 792 P.2d at 1105. In this case, the
jury was specifically instructed that to prove lack of consent the
State had to establish that the victim was compelled to submit by
"force or by threat of imminent death, bodily injury, or kidnapping
. . . ." Therefore, the State's burden of proof was not something
less than required by prior case law.
IV.
Did the court improperly instruct the jury regarding the
meaning of "proof beyond a reasonable doubt"?
It is within the prerogative of the trial court to determine
which instructions are necessary in a particular case, and the
court should instruct on every theory having support in the
evidence. State v. Smith, 220 Mont. 364, 381, 715 P.2d 1301, 1311
(1986).
In its preliminary instruction to the jury at the outset of
trial, the District Court instructed it that the State of Montana
had the burden of proving the defendant's guilt beyond a reasonable
doubt. It then defined reasonable doubt as follows:
Proof beyond a reasonable doubt is proof of such a
convincing character that a reasonable person would rely
and act upon it in the most important of his own affairs.
 Beyond a reasonable doubt does not mean beyond any doubt
or beyond a shadow of a doubt.
The defendant offered an alternate instruction on reasonable
doubt from Devitt & Blackmar, 5 11.14. The defendant's instruction
was rejected in favor of the instruction that was actually given
by the court. On appeal, the defendant argues that the court's
reasonable doubt instruction was inadequate because it failed to
take into consideration that part of the State's proof was based
upon circumstantial evidence. Beyond that, the defendant has
failed to explain why his own offered instruction was preferable
to the one given by the court.
In State v. Lucero, 214 Mont. 334, 693 P.2d 511 (1984), this
Court specifically approved the reasonable doubt instruction given
by the District Court in this case. Furthermore, we stated that
more complicated instructions on reasonable doubt did not help
clarify the State's burden of proof but have a tendency to confuse
the jury. We suggested that this instruction, which is patterned
after Model Montana Criminal Jury Instruction No. 1-004, be used
in future criminal cases, and that no further elaboration of the
definition would, therefore, be needed.
We conclude that the District Court correctly instructed the
jury in this case regarding the meaning of reasonable doubt.
v.
Should the District Court have granted a new trial based upon
evidence discovered by the defendant subsequent to trial?
 After Dawn Goodwin had been removed from her parents' home,
she spent between seven and eight months living with a foster
parent whose name was Beatrice T. Doyle. Subsequent to trial, the
defendant's attorney learned that Dawn's relationship with Ms.
Doyle had not been a good one. In fact, Dawn was removed from that
home and Ms. Doyle's foster parent license was subsequently
revoked, due to complaints that Dawn and several others made about
the quality of care that she provided.
It is the defendant's position that the State had an
obligation to inform him of Ms. Doyle's existence, and to provide
him with a copy of the file kept on Ms. Doyle at the Department of
Family Services prior to trial. The defendant argues that by
failing to do so, the State suppressed exculpatory evidence in
violation of Brady v. Maryland, 373 U.S. 83, 10 L.Ed. 215, 83 S.Ct.
1194 (1963).
The basis for this charge by the defendant is his pretrial
motion which was granted by the District Court and which requested
that the State produce any exculpatory evidence and "a copy of the
Department of Family Services files on Dawn, Pam and Darwin Goodwin
. . . . 'I In response to that motion, the Department of Family
Services did produce their file pertaining to Dawn Goodwin. That
file was inspected by the District Court Judge who made certain
portions of the file available to defense counsel to assist him in
the preparation of his case.
 During the defendant's motion for a new trial, which was heard
on April 17, 1990, Lori Clark, who was in charge of delivering the
Dawn Goodwin file to the District Court, testified that the
information regarding Bea Doyle was kept in a separate Family
Servicest file and was not delivered because it was Lori Clark's
understanding that that file had not been requested.
It is the defendant's position that had the Bea Doyle file
been produced, his attorney would have subsequently interviewed
her, and learned of the following exculpatory evidence which would
have been of assistance to the defendant, and changed the result
of his trial:
1. Bea Doyle's testimony would have established a
propensity by Dawn Goodwin to assert complaints of a sexual nature;
2. Her testimony would have shown Dawn Goodwin's social
promiscuity; and
3. Her testimony would have established that Dawn had not
been coerced to submit to the acts with which the defendant was
charged in Counts I and 111.
Bea Doyle was called as a witness by the defendant during the
April 17, 1990, hearing on his motion for a new trial. The only
testimony that she gave regarding the victim's propensity to make
complaints of a sexual nature was her testimony that Dawn reported
her for "making-outM on the couch while ignoring the foster
children under her care. Lori Clark testified that a similar
complaint had been made by other foster children, and that Ms.
Doyle's license as a foster parent was subsequently suspended.
However, even if we assume, as Ms. Doyle contends, that the
complaint by Dawn was untrue, it was simply evidence of another act
offered to prove that Dawn acted in conformity therewith when she
complained about her father's acts. As such, it would have been
inadmissible at trial pursuant to Rule 404 (a), Mont.R.Evid. It did
not meet any of the exceptions outlined in Rule 404 (b), which would
have made it admissible.
Ms. Doyle's only testimony regarding Dawn Goodwin's lfsocial
promi~cuity'~ her testimony to the effect that Dawn had a steady
was
stream of boyfriends calling or visiting. These facts did not make
any fact which was in issue more or less likely to have occurred,
and would, therefore, have been inadmissible pursuant to Rule 401,
Mont.R.Evid., for lack of relevance. Furthermore, pursuant to
5 45-5-511(4), MCA, evidence of the sexual conduct of a victim of
a sexual crime is not admissible. If sexual conduct is
inadmissible, it is certainly reasonable to exclude testimony such
as Ms. Doyle's that the victim had a steady stream of boyfriends
calling and visiting.
Finally, Ms. Doyle's testimony on the subject of coercion was
as follows:
Q. (By Mr. Flaherty) Did Dawn tell you her version?
A. Yes.
Q. Have I ever asked her for what her version is of
what happened?
 A. No, you haven't.
Q. They say on cross-examination a good lawyer never
asks this question, but what did she tell you was
her version of what happened?
A. She said that there was an incident where her father
made her disrobe and he inserted his finger in her
vagina to see if she was a virgin. I thought that
was highly irregular because I think only a doctor
could even tell if a person was a virgin or not or
had been abused.
Q. When she communicated this to you, did she indicate
that she was in fear or in any kind of terror that
she submitted to this or --
A. Well, I don't think that was it. I thought the way
that I understood it was that her father -- it was
a command from her father which she was going to
obey even if she was reluctant to do it.
We conclude that the above testimony does not establish a lack
of coercion as suggested by the defendant.
There is no evidence that Bea Doyle's testimony was suppressed
by the State. The evidence was that the Department of Family
Services' file including information about Bea Doyle was not
produced by that Department because it did not appear to have been
requested by the defendant. The evidence was, furthermore, that
had the file been produced it would not have contained information
helpful to the defendant, other than the identity of Bea Doyle and
the fact that the Department of Family Services had recommended
that her foster parent license not be renewed. Finally, had the
defendant been aware of Bea Doyle and interviewed her, the
testimony that she had to offer would not have been exculpatory for
the reasons set forth above. Therefore, her testimony does not
warrant a new trial pursuant to Bradv v. Maryland, supra.
The defendant's motion for a new trial was properly considered
by the District Court under 5 46-16-702, MCA, which provides that:
Following a verdict or finding of guilty, the court may
grant the defendant a new trial if required in the
interest of justice.
The decision of whether a new trial is warranted is within the
sound discretion of the trial court and should not be disturbed on
appeal unless an abuse of discretion is shown. State v. Morris,
230 Mont. 311, 320, 749 P.2d 1379, 1384 (1988).
Where the basis for a motion for a new trial is newly
discovered evidence, as in this case, we have listed six criteria
which should be considered by the District Court:
1. The evidence must have come to the knowledge
of the applicant since the trial;
2. It was not through want of diligence that the
evidence was not discovered earlier;
3. The evidence is so material that it would
probably produce a different result upon another trial;
4. The evidence is not cumulative merely--that
is, does not speak as to facts in relation to which there
was evidence at the trial;
5. The application must be supported by the
affidavit of the witness whose evidence is alleged to
have been newly discovered, or its absence accounted for;
and
6. The evidence must not be such as will only tend
to impeach the character or credit of a witness.
State v. Greeno, 135 Mont. 580, 586, 342 P.2d 1052, 1055 (1959).
 For the reasons previously mentioned, we conclude that the
testimony of Beatrice T. Doyle was in some respects inadmissible,
and in other respects did not establish those facts for which the
defendant now offers it. Therefore, it could not produce a
different result upon another trial, and we conclude that the
District Court did not abuse its discretion when it denied the
defendant's motion for a new trial.

Considering the totality of circumstances, was the defendant
denied a fair trial?
A. INDEPENDENT EXAMINATION OF VICTIM.
Prior to trial the defendant moved for an independent
examination of the alleged victim. The trial court denied that
motion.
On appeal, the defendant argues that the trial court erred by
denying him an independent medical examination of the victim, Dawn
Goodwin. However, the defendant has not offered, nor suggested,
any material evidence that could have resulted from an independent
medical examination of the victim months after the alleged
incidents occurred.
This issue is controlled by our decision in State v. Liddell,
211 Mont. 180, 685 P.2d 918, 924 (1984), where we stated that:
The next specification of error is whether the District
Court erred by refusing to compel the victim to be
examined by defendant's psychologist.
 There is no legal authority for such a procedure. 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 w t e s not a party to this action. The
ins,
issue in this matter is whether the sexual intercourse
was effected against her will and without her consent.
... . Since the victim was a witness and not a party,
and since her state of mind was not at issue, it was
proper for the District Court to refuse to order her
examination by defendant's psychologist. To hold
otherwise would permit the defense to try the victim of
the crime and divert the jury's attention from the
primary issue--the guilt or innocence of the defendant.
B. CAUTIONARY INSTRUCTION.
During the victim's testimony she related a number of prior
acts by her father which amounted to contact or suggestions of a
sexual nature. These acts would normally have been inadmissible
under Rule 404(b) if offered to prove the character of the
defendant. However, they were admissible to prove that the
defendant's intent on the occasions in question was sexual
gratification.
On appeal, the defendant does not contend that the prior acts
were inadmissible under Rule 404(b). Instead, he argues that no
cautionary instruction was given, as is required pursuant to this
Court's decision in State v. Just, 184 Mont. 262, 602 P.2d 957, 964

However, at the time that the evidence of other acts was
offered, the defendant neither objected to the evidence nor
requested a cautionary instruction. Furthermore, after the State
completed its proof and it was pointed out to the District Court
that the Just instruction had not been given, the court did give
an instruction which met with the defendant's approval prior to
proceeding any further. In addition, the court included a second
cautionary instruction during its final instructions to the jury.
We conclude that while it would have been preferable for the
cautionary instruction to have been given at the time that the
evidence was introduced, the delay involved in the giving of the
instruction in this case was not prejudicial to the defendant.
C. PROSECUTOR'S REMARKS.
During jury deliberations, the foreman asked the court,
I1[w]hat is required of the completion of sexual intercourse and if
sexual gratification is a requirement of all three?"
Following a discussion in chambers with counsel present, the
District Court clarified its instruction by pointing out that the
act complained of had to be done for the purpose of t'arousinq or
gratifying [the] sexual desire of either party."
The foreman then stated, I1[s]o then it would be in order to
have sexual intercourse, Mr. Goodwin would have to have penetrated
his daughter in order to -- and receive sexual gratification; is
that correct?'' In response to that question, the District Court
responded, "that's correct."
The county attorney then stated to the judge that Mr. Goodwin
would not have had to receive sexual gratification as the foreman
stated, but only had to commit the act with sexual gratification
as his intent.
 On appeal the defendant objects that it was improper for the
county attorney to have instructed the jury on the law. We agree
that counsel should avoid stating their interpretation of the law
in the jury's presence in response to a question from the jury.
However, 5 46-20-701 (2), MCA, provides that: 'I [alny error, defect,
irregularity, or variance which does not affect substantial rights
shall be disregarded."
In this case, the prosecutor's comments were a correct
statement of the law, and therefore, we conclude that the
prosecutor's remarks did not adversely affect substantial rights
of the defendant.
D. INSPECTION OF FAMILY SERVICES' FILE.
Finally, defendant contends that it was error for the District
Court to refuse the defense complete access to the Department of
Family Services' files on Dawn Goodwin.
The District Court conducted its own inspection of those files
and produced, for the defendant Is use, those documents which it
felt were relevant and necessary to the defense.
In this case, the District Court was bound by 5 41-3-205, MCA,
which provides as follows:
(1) The case records of the department of social and
rehabilitation services, the department of family
services and its local affiliate, the county welfare
department, the county attorney, and the court concerning
actions taken under this chapter and all records
concerning reports of child abuse and neglect shall be
kept confidential except as provided by this section.
Any person who permits or encourages the unauthorized
 dissemination of their contents is guilty of a
misdemeanor.
(2) Records may be disclosed to a court for in camera
inspection if relevant to an issue before it. The court
may permit public disclosure if it finds such disclosure
to be necessary for the fair resolution of an issue
before it.
We conclude that the District Court did not err by the manner
in which it inspected and provided limited discovery of Dawn
Goodwin's records kept by the Department of Family Services.
CROSS-APPEAL

For its cross-appeal, the State of Montana raises the
following issue:
Did the ~istrictCourt err when it applied the exception found
in 5 46-18-222 (5), MCA, to the mandatory two-year sentence for
sexual intercourse without consent?
The State appeals from the District Court's sentencing order
which suspended all but 30 days of defendant's sentence which
resulted from his conviction of the crime of sexual intercourse
without consent.
section 45-5-503, MCA, which establishes the crime of sexual
intercourse without consent, also provides the following penalty:
(2) A person convicted of sexual intercourse without
consent shall be imprisoned in the state prison for a
term of not less than 2 years or more than 20 years and
may be fined not more than $50,000, except as provided
in 46-18-222.
 It is clear from the record that in making an exception to the
minimum two-year prison term, the District Court relied on
5 46-18-222, MCA, which provides as follows:
All mandatory minimum sentences prescribed by the laws
of this state and the restrictions on deferred imposition
and suspended execution of sentence prescribed by
subsections (4), (5), and (6) of 46-18-201, 46-18-
221(3), 46-18-224, and 46-18-502(3) do not apply if:

(5) where applicable, no serious bodily injury was
inflicted on the victim unless a weapon was used in the
commission of the offense.
The State argues that a reasonable construction of 5 46-18-
222(5), MCA, requires the conclusion that that exception to the
minimum sentence is applicable in only those cases where the threat
of bodily injury or actual infliction of bodily injury is an
essential element of the crime. It is the State's position that
that is why the introductory language "where applicable1'is used.
For example, 5 45-9-102, MCA, provides a minimum sentence for
the possession of dangerous drugs. It would make no sense to
impose the minimum sentence and then excuse it in those cases where
no serious bodily injury has been inflicted on the victim.
Although some would disagree, possession of dangerous drugs is
commonly considered a victimless crime.
On the other hand, the State offers robbery (5 45-5-401, MCA)
and aggravated assault (5 45-5-202(2), MCA) as examples of crimes
to which the exception found in 5 46-18-222(5), MCA, obviously
applies. The State's argument goes on to point out that both of
these crimes have as essential elements of the crime, the
infliction or threat of bodily injury. However, in that respect
they are similar to the crime of sexual intercourse without
consent. In S 45-5-501, MCA, the following definition of "without
consentuu provided:
is
As used in 45-5-503 and 45-5-505, the term Itwithout
consentuu
means :
(1) the victim is compelled to submit by force or by
threat of imminent death, bodily injury, or kidnapping
to be inflicted on anyone; or
(2) the victim is incapable of consent because he is:
(a) mentally defective or incapacitated;
(b) physically helpless; or
(c) less than 16 years old.
It is clear that the crimes of robbery, felony assault, and
sexual intercourse without consent may all involve the threat or
actual infliction of bodily harm.
The State points out that 45-5-503 (3) (a), MCA, increases the
penalty in those cases where the victim is under 16 years of age

- where bodily injury is inflicted on the victim.
or The State
argues that it would be inconsistent for the legislature to
increase the penalty under one section of the code where llbodily
injury occursIuf
and then to waive the minimum prison term in a
subsequent section where no ulserious
bodily injury was inflicted
on the victim .... 11
 We agree that in reconciling these two provisions there is at
least an ambiguity regarding the meaning of "where applicablel1 in
those cases where the victim is under the age of 16 (therefore, the
threat of or infliction of harm is not an element of the crime),
or where some injury less than "serious bodily injury" has been
inflicted on the victim. However, if the legislature had intended
this exception to minimum sentences to be limited to certain
crimes, it had it within its power to clearly state the crimes to
which the section was applicable. By doing so, the legislature
could have made its intention clear. It did not do so, and under
these circumstances our duty is clear. We must interpret the
criminal statute in a way most favorable to the private citizen
against whom it is sought to be enforced, and against the state
which authored it.
The District Court and this Court are compelled to follow the
classic rule of construction of criminal statutes which is
succinctly set forth as follows:
Penal statutes are construed with such strictness as to
safeguard the rights of the defendant. If the statute
contains patent ambiguity and admits of two reasonable
and contradictory constructions, that which operates in
favor of a party accused under its provisions is to be
preferred. Moreover, penal statutes are not to be
extended in their operation to persons, things, or acts
not within their descriptive terms, or the fair and clear
import of the language used. Nothing can be read into
penal statutes by implication.
73 Am.Jur. 2d Statutes 5 295.
 We agree with the following rule of interpretation articulated
by the United States Supreme Court over the years:
First, as we have recently reaffirmed, "ambiguity
concerning the ambit of criminal statutes should be
resolved in favor of lenity." Rewis v. United States,
401 US 808, 812, 28 L Ed 2d 493, 497, 91 S Ct 1056
(1971). See also, Ladner v. United States, 358 US 169,
177, 3 L Ed 2d 199, 204, 79 S Ct 209 (1958); Bell v.
United States, 349 US 81, 99 L Ed 2d 905, 75 S Ct 620
(1955); United States v. Five Gambling Devices, 346 US
441, 98 L Ed 179, 74 S Ct 190 (1953) (plurality opinion
for affirmance) . In various ways over the years, we have
stated that "when choice has to be made between two
readings of what conduct Congress has made a crime, it
is appropriate, before we choose the harsher alternative,
to require that Congress should have spoken in language
that is clear and definite." United States v. Universal
C. I. T. Credit Corp., 344 US 218, 221-222, 97 L Ed 260,
264, 73 S Ct 227 (1952). This principle is founded on
two policies that have long been part of our tradition.
First, "a fair warning should be given to the world in
language that the common world will understand, of what
the law intends to do if a certain line is passed. To
make the warning fair, so far as possible the line should
be clear." McBoyle v. United States, 283 US 25, 27, 75
L Ed 816, 818, 51 S Ct 340 (1931) (Holmes, J.) . See
also, United States v. Cardiff, 344 US 174, 97 L Ed 200,
73 S Ct 189 (1952). Second, because of the seriousness
of criminal penalties, and because criminal punishment
usually represents the moral condemnation of the
community, legislatures and not courts should define
criminal activity. This policy embodies "the instinctive
distaste against men languishing in prison unless the
law-maker has clearly said they should." H. Friendly,
Mr. Justice Frankfurter, and the Reading of Statutes in
Benchmarks 196, 209 (1967). Thus, where there is
ambiguity in a criminal statute, doubts are resolved in
favor of the defendant.
United States v. Bass, 404 U.S. 336, 347-48, 30 L.Ed.2d 496,

In summary, we conclude that since the threat or infliction
of actual bodily harm may, depending on the circumstances, be an
element of the offense of sexual intercourse without consent, it
is reasonable to conclude that the exception to the minimum
sentence found at 5 46-18-222(5), MCA, when no ltseriousbodily
injury was inflicted on the victim1'is applicable to that offense.
Any ambiguity regarding the applicability of this exception must
be llresolved favor of lenity.''
in
We affirm the jury's verdict and the sentencing of the
District Court.

We Concur:

,