No. 90-142
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
APPEAL FROM: District Court of the Eighth Judicial District,
In and for the County of Cascade,
The Honorable John M. McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Michael Donahoe, Esq., Helena, Montana
For Respondent:
Hon. Marc Racicot, Attorney General; Elizabeth
Griffing, Assistant Attorney General; Helena,
Montana
Patrick L. Paul, County Attorney; Tammy Plubell,
Deputy County Attorney; Great Falls, Montana
Submitted on Briefs: November 29, 1990
Decided: January 28, 1991
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
George Ronald Walters appeals his felony convictions of sexual
assault and sexual intercourse without consent following a jury
trial in the Eighth Judicial District, Cascade County. We affirm.
Walters presents the following issues:
1 Did the District Court abuse its discretion in determining
.
that the four-year-old victim was competent to testify?
2. Did the District Court improperly conclude that the State
did not have to prove the reliability of an expert witness's
testimony concerning the child victim meeting the profile of a
sexually abused child?
3. Did the District Court abuse its discretion in allowing
a police officer to refresh his recollection by reviewing the
transcript of an interview the officer had with the appellant?
4. Did the District Court err when it excluded evidence that
the victim's mother had, as a child, made a complaint of sexual
abuse against her father?
5. Did sufficient evidence exist to support the appellant's
conviction of sexual intercourse without consent?
6. Did the District Court abuse its discretion in not
sentencing the appellant under the incest statute, 1 45-5-507, MCA?
In 1988, the appellant, George Ronald Walters, and his wife,
Ruth, resided in Great Falls, Montana, as did their son, Rodney
Walters. Rodney lived with Cindy Cameron and Cindy's three-year-
old daughter, K.C. Although Rodney was not the natural father of
K.C., he considered himself K.C.'s stepfather. K.C., in turn,
called Rodney ''Dadn and also referred to appellant and Ruth as
"Grandpa Ronw and "Grandma Ruth.''
On December 28, 1988, Rodney, Cindy, and K.C. went to
appellant and Ruth's home to do laundry. While there, Cindy and
Rodney decided to go to a movie, which began around 9:00 p.m.
Cindy and Rod left K.C. with Ruth; appellant was not home at this
time. Prior to departing for the movie, Cindy dressed K.C. in a
nightgown and panties and prepared her for bed.
Appellant returned home shortly after Rodney and Cindy had
departed. Because Ruth was not feeling well and had to arise early
the next day to go to work, she asked appellant to watch K.C. until
Rodney and Cindy returned. Ruth then retired to her separate
bedroom and closed her bedroom door, although Ruth remained awake
and recalled hearing activity in the house until 11:15 p.m.
Ruth testified she left her bedroom and checked on appellant
and K.C. on two occasions that evening, once at around 11:30 p.m.
and once at around 12:OO a.m. On the first occasion, Ruth noticed
that K.C. was not in the bedroom where she had instructed appellant
to put her. She then checked appellant's bedroom; the door was
open and the room was dark and quiet. Ruth concluded that
appellant and K.C. were asleep in appellant's bedroom, and returned
to her bedroom. On the second occasion, Ruth testified that she
got up and noticed that everything appeared the same; appellant's
bedroom was dark and quiet.
3
Rodney and Cindy returned from the movie at about 12:15 a.m.
Upon entering the house, Rodney went into a nearby bathroom, and
Cindy proceeded to the living room, where she expected to find K.C.
sleeping on the couch. When Cindy did not find K.C. in the living
room, she proceeded down the hallway to Ruth's bedroom. In the
hallway, Cindy was greeted with a hug by an excited K.C. K.C. then
pulled up her nightgown, revealing that she was no longer wearing
her panties. Cindy assumed that K.C. left her panties in a
bathroom, and asked her to retrieve them; K.C. responded, "no."
Cindy again asked K.C. to get her panties and K. C., once again,
refused and told Cindy that Grandpa Ron had removed her panties and
had ''tickled her with his pee."
Shortly thereafter, Rodney appeared from the bathroom, and
the visibly-shakened Cindy requested that the three go downstairs
in the laundry room and talk. Upon Cindy's request, K.C. repeated
to Rodney and Cindy that Grandpa Ron had removed her panties and
"tickled her with his pee." Rodney then went upstairs, woke up his
mother, Ruth, and asked her what happened.
Cindy and K.C. returned upstairs to the living room, where
they were joined by Rodney and Ruth. Cindy asked Ruth to find
K.C.'s panties. Upon looking for the panties, Ruth entered
appellant's bedroom, and found the panties in his bed. Ruth gave
the panties to Cindy. K.C. then repeated her allegations to Ruth,
Rodney and Cindy, and added that Grandpa Ron had also "stuck his
pee in her mouth and went like that," gesturing an in-and-out
4
movement with her finger in her mouth. K.C. also stated that l*it
got small and big."
Rodney then confronted appellant with K.C.Is allegations;
appellant was in a bathroom located close to his bedroom at this
time. Appellant responded with further questions and never denied
the allegations; he stated that he was tired and wanted to return
to bed.
Rodney returned to the living room, and with Cindy and K.C.,
gathered their belongings and went outside to their car. Rodney
then briefly returned to the house where he again confronted
appellant about K.C.Is allegations before leaving.
Confused and upset, Rodney, Cindy, and K.C. drove to the home
of Cindy's sister to use a telephone; it was now in the early
morning hours of December 29, 1988. While there, Cindy telephoned
her parents, who advised her to immediately take K.C. to the
hospital for a physical examination. Rodney and Cindy complied
with this advice, and took K.C. to the Montana Deaconess Medical
Center Emergency Department following the phone call. There, Dr.
Nora Gerrity, a pediatrician, observed that K.C. had redness and
swelling around her vagina, which was consistent to frictional
trauma associated with sexual contact. Dr. Gerrity testified that
such redness around the vagina could not have been caused by an
infection or a self-inflicted act.
While K.C. was being examined by Dr. Gerrity, Police Detective
Robert Dykemen arrived at the hospital and interviewed Rodney and
5
Cindy concerning the incident. The following day, December 30,
1988, Dykemen tried to interview K.C., but she refused to talk with
him. Additionally, on January 2, 1989, Dykemen interviewed
appellant about the incident. Dykemen testified that appellant
indicated more than once during the interview that he was feeling
"bad and ashamed,It that l1it may have happened, and that he
generally felt guilty about the incident.
Irene Johnson, a social worker for the Department of Family
Services, interviewed K.C. following the incident. Ms. Johnson
testified that K.C. was a verbal three-year-old girl who was able
to relate a truthful story. Ms. Johnson also believed that K.C.'s
mother did not coach K.C. in any way concerning her accounting of
the incident. Ms. Johnson referred K.C. to Dr. Janet Hossack, a
psychologist and therapist specializing in child sexual abuse, for
counseling.
After working with K.C., Dr. Hossack concluded that K.C.Is
behavior was consistent with that of a sexually abused child.
Prior to the incident, K.C. had been toilet-trained and after the
incident, she not only urinated but defecated on the floor. K.C.
had been dry during the day and most nights, but after the
incident, was wet during the day and night. K. C. had been sleeping
fine in her own bed, but after the incident, had difficulty
sleeping without her mother. About a month after the incident,
K. C. began acting out sexually by masturbating, had periods of
spacing out, experienced temper tantrums, and was increasingly
6
hyperactive and irritable. Based on K.C.Is actions and accounting,
Dr. Hossack believed that K.C. had been sexually abused. Dr.
Hossack also noted that a three- to four-year-old child is
incapable of fabricating such an incident.
On March 14, 1989, appellant was charged by information with
sexual assault and sexual intercourse without consent in violation
of 8 8 45-5-502, and -503, MCA. The information alleged that
appellant had subjected K. C. to sexual contact by rubbing his penis
against her vaginal area and to sexual intercourse without consent
by placing his penis in K.C.Is mouth.
original counsel for appellant stipulated to the admittance
of a videotape deposition of K.C., which was taken on December 7,
1989. On December 11, 1989, however, appellant dismissed his
original counsel, and obtained new counsel. Upon reviewing the
videotape deposition, appellant's new counsel objected to the
admittance of the videotape deposition asserting that K.C. was not
a competent witness. A competency hearing was held prior to trial
on January 15, 1990. The District Court, after examining K.C. and
Dr. Hossack, determined that K. C. was a competent witness, and held
K.C.Is videotape deposition admissible.
On the videotape, K.C. testified that she understood what it
meant to tell the truth, and that there were consequences if she
failed to tell the truth. Although K.C. displayed some confusion
and inconsistency during parts of her videotape deposition, she
accurately responded to questions pertaining to her age, name, and
7
colors in the room. Additionally, K.C. responded to questions with
regard to the incident.
Following the jury trial, on January 16, 1990, appellant was
found guilty of sexual assault and sexual intercourse without
consent. On February 22, 1990, the District Court sentenced
appellant to twenty years imprisonment for sexual assault with ten
years suspended, and thirty-five years imprisonment for sexual
intercourse without consent with ten years suspended, both of these
sentences to run consecutively. From this judgment, appellant
appeals.
1 Did the District Court abuse its discretion in determining
.
that the four-year-old victim was competent to testify?
Montana Rule of Evidence 601 provides:
(a) General rule competency. Every person is
competent to be a witness except as otherwise
provided in these rules.
(b) Disqualification of witnesses. A person
is disqualified to be a witness if the court
finds that (1) the witness is incapable of
expressing himself concerning the matter so as
to be understood by the judge and jury either
directly or through interpretation by one who
can understand him or (2) the witness is
incapable of understanding the duty of a
witness to tell the truth.
"Witness competency is within the discretion of the trial court.I1
State v. Eiler (1988), 234 Mont. 38, 43, 762 P.2d 210, 214
(citations omitted). "The requirements for determining competence
are Icapacity of expression and appreciation of the duty to tell
the truth. I n Eiler, 234 Mont. at 42, 762 P.2d at 213 (citations
omitted). Here, the District Court committed no error because it
methodically and carefully determined, in a competency hearing
before the trial, that K.C. was capable of expressing herself and
that she appreciated the duty to tell the truth.
Appellant argues that the District Court erred by relying
solely on the information concerning K.C.Is ability to communicate
and to tell the truth, which was disclosed during the competency
hearing on the morning of the trial. Appellant contends that the
court should have reviewed K.C.'s videotape deposition, which
exhibited some inconsistencies in K.C.Is testimony, to determine
her competency. Appellant's argument lacks merit. Inconsistencies
in a witness's testimony are not matters of competency, but rather,
matters of credibility. And, evaluating the credibility of a
witness falls strictly within the province of the jury. State v.
Newman (1990), 242 Mont. 315, 321, 790 P.2d 971, 974 (citations
omitted). We therefore hold that the District Court did not abuse
its discretion when it determined that K.C. was a competent
witness.
2. Did the District Court improperly conclude that the State
did not have to prove the reliability of an expert witness's
testimony concerning the child victim meeting the profile of a
sexually abused child?
In raising this issue, appellant is essentially asking this
Court to adopt the two-pronged F r ~ e
test, which states that expert
witness testimony lacks foundation unless it is established that
the expert's testimony is based upon well-recognized scientific
principles or has gained "general acceptanceI1 in the expert's
field. Frye v. United States (D.C. Cir. 1923), 293 F. 1013, 1014.
Appellant's argument lacks merit. This Court has expressly
rejected the ''general acceptancell prong of the Frve test. Barmeyer
v. Montana Power Co. (1983), 202 Mont. 185, 193, 657 P.2d 594, 598;
State v. Clark (1988), 234 Mont. 222, 227, 762 P.2d 853, 856.
Montana Rule of Evidence 702, adopted fifty-four years after
the Frye decision, provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact
in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or
education may testify thereto in the form of
an opinion or otherwise.
In Barmever, we held that the "general acceptanceg1
rule of the Frve
test was "not in conformity with the spirit of the new rules of
evidence. . . . 'Unless an exaggerated popular opinion of the
accuracy of a particular technique makes its use prejudicial or
likely to mislead the jury, it is better to admit relevant
scientific evidence in the same manner as other expert testimony
and allow its weight to be attacked by cross-examination and
refutation.'" Barmever, 202 Mont. at 193-94, 657 P.2d at 598
(citations omitted). Here, Dr. Hossackls testimony was neither
prejudicial nor misleading. And, appellant had the opportunity to
attack the weight of Dr. Hossackls testimony through cross-
examination.
Appellant further argues that besides the "general acceptancet8
prong, the remaining prong of the F r ~ e
test requires a threshold
determination of reliability of expert testimony to novel areas of
scientific expertise, citing United States v. Downing (3d Cir.
1985), 753 F.2d 1224, 1237-39. Appellant asserts that expert
testimony concerning sexual abuse of children is a novel area in
Montana. This Court, however, has recognized and sanctioned expert
testimony concerning sexual abuse and specifically has allowed
expert testimony concerning a child fitting the profile of a
sexually abused child, and thus, this area is not a novel area of
scientific expertise. State v. Donnelly (Mont. 1990), 798 P. 2d
89, 93, 47 St.Rep. 1600, 1604. We therefore hold that the District
Court committed no error by allowing Dr. Hossackls testimony
without requiring a threshold determination of the reliability of
her testimony.
3. Did the District Court abuse its discretion in allowing
a police officer to refresh his recollection by reviewing the
transcript of an interview the officer had with the appellant?
Prior to testifying Officer Dykeman reviewed a transcript of
his interview with the appellant, which occurred on January 2,
1989, for the purpose of refreshing his memory; the transcript
11
was not introduced into evidence. Appellant asserts that the
District Court erred by allowing Officer Dykeman to refresh his
recollection of the interview by reviewing the transcript because
the original audio tapes of the interview were erased by the police
department for economic reasons, and these tapes were the best
evidence. We disagree. Montana Rule of Evidence 612 allows a
witness to refresh his or her memory by reviewing a writing prior
to or during their testimony. Furthermore, the best evidence rule
concerns matters of admissibility. Here, the best evidence rule
is inapplicable because the admissibility or inadmissibility of the
writing does not affect the writing's availability for the use of
refreshing a witness's memory. See Johnson Equipment, Inc. v.
Nielson (Idaho 1985), 702 P.2d 905, 908. As long as the writing
is not introduced into evidence, and here it was not, a witness may
refresh his recollection for the purpose of testifying. State v.
LaFreniere (1973), 163 Mont. 21, 25-27, 515 P.2d 76, 78-80. We
therefore hold that the District Court did not abuse its discretion
in allowing the police officer to refresh his recollection of the
interview by reviewing the transcript.
4. Did the District Court err when it excluded evidence that
the victim's mother had, as a child, made a complaint of sexual
abuse against her father?
Montana Rule of Evidence 402 provides, in pertinent part, that
"[all1 relevant evidence is admissible. . . . Montana Rule of
12
Evidence 401 defines relevant evidence as, "evidence having any
tendency to make the existence of any fact that is of consequence
to the determination of the action more probable or less probable
than it would be without the evidence. Relevant evidence may
include evidence bearing upon the credibility of a witness or
hearsay declarant."
It is within the discretion of the trial court to determine
issues of admissibility, and the trial court's ruling will stand
upon review unless the record indicates that the trial court abused
its discretion. State v. Crazy Boy (1988), 232 Mont. 398, 402, 757
P.2d 341, 343 (citations omitted).
Here, the District Court found that Cindy's accusations of
sexual abuse against her father (K.C.'s maternal grandfather) was
irrelevant to the case at hand, and thus, inadmissible. Appellant,
however, asserts that this evidence supports his theory that on the
night of the incident, K.C. was asleep and was recalling a past
alleged incident of sexual abuse committed by her maternal
grandfather through a dream. Upon being awakened by her mother's
return from the movie, K.C. confused her dream with appellant, and
wrongly accused appellant as the assailant.
Appellant's theory is unfounded. Although Ruth testified that
she assumed K.C. was asleep when she twice observed that appel-
lant's bedroom was dark and quiet the night of the incident, the
record is void of any evidence to support appellant's theory that
K.C. was dreaming of a past alleged sexual abuse incident involving
13
her maternal grandfather. We therefore hold that the District
Court did not abuse its discretion when it determined that this
evidence was irrelevant and inadmissible.
5. Did sufficient evidence exist to support the appellantls
conviction of sexual intercourse without consent?
The standard for reviewing issues concerning sufficiency of
the evidence is Itwhether,after viewing the evidence in the light
most favorable to the prosecution, anv 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,; State v. Gilpin (1988), 232 Mont.
56, 68, 756 P.2d 445, 451; and State v. Kao (Mont. 1990), P. 2d
, , 47 St.Rep. 2100, 2102. Appellant asserts that the record
lacked sufficient evidence to convict him of sexual intercourse
without consent.
Section 45-2-101(61), MCA, provides, in pertinent part, that
lllSex~al
intercourse1 means penetration of the vulva, anus, or
mouth of one person by the penis of another person. . .I1 And,
5 45-5-503(3) (a), MCA, provides, in pertinent part, that I1without
consentl1 means that the victim is incapable of consent because he
or she is less that sixteen years of age.
Here, the record contains sufficient evidence that appellant
put his penis in three-year-old K.C.'s mouth, and therefore,
committed the crime of sexual intercourse without consent in
violation of 5 45-5-503, MCA. Cindy, Rodney, and appellant's wife
all testified that K.C. stated to them on the night of the
incident, appellant had "stuck his pee in her mouth and went like
that," gesturing an in-and-out movement with her finger in her
mouth. Furthermore, Dr. Hossack testified that K.C. told her an
accounting of the incident consistent to the above testimony and
that K.C. was not capable of fabricating such an accounting. Dr.
Hossack, as well as Irene Johnson, testified that it was their
belief that K.C. was credible and was not coached by her mother
with her accounting of the incident. Furthermore, Officer Dykeman
testified that in his interview with the appellant concerning the
incident, appellant indicated more than once that he was feeling
"bad and ashamed," and that "it may have happened."
It is important to clarify that during trial, appellant's
counsel made no objections based on hearsay grounds with regard to
the testimony of Cindy, Rodney, Ruth, Irene Johnson, and Dr.
Hossack, which discussed the statements K.C. made to them. In the
event a hearsay objection had been made, the testimony of Cindy,
Rodney, and Ruth, although hearsay, would be excepted as an excited
utterance under Montana Rule of Evidence 803(2). However, no
hearsay issues were preserved for appeal by proper objections at
trial with regard to any of the above testimony. We therefore hold
15
that sufficient evidence existed to support the appellantls
conviction of sexual intercourse without consent.
6. Did the District Court abuse its discretion in not
sentencing the appellant under the incest statute, 5 45-5-507, MCA?
On January 16, 1990, a jury found appellant guilty of one
count of sexual assault and one count of sexual intercourse without
consent as charged. On February 22, 1990, the District Court
sentenced appellant to twenty years imprisonment for sexual assault
with ten years suspended, and thirty-five years imprisonment for
sexual intercourse without consent with ten years suspended, both
of these sentences to run consecutively. Appellant argues that
because it was recognized during trial that he and K.C. had a
grandparent-grandchild relationship, he should have been sentenced
under the incest statute, 5 45-5-507, MCA.
Appellantls argument lacks merit, and is a clumsy attempt to
decrease his prison sentence. Appellant was charged and convicted
of sexual assault and sexual intercourse without consent, not
incest. The District Court properly sentenced appellant under the
sexual assault and sexual intercourse without consent statutes,
5 5 45-5-502 and -503, MCA. The fact that a grandparent-grandchild
relationship between appellant and K.C. was recognized during
trial, although no blood-line relationship exists here, does not
serve to alter the charges, convictions or sentences against
appellant. We therefore find that no error was committed by the
District Court.
Affirmed .
We concur: