NO. 85-443
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
THE STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
CHARLES W. 'BILL' BIEHLE,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Charles W. Biehle, Pro Se,
Powell, Wyoming
For Respondent:
Marc Racicot, Attorney General, Helena, Montana,
Barbara C. Harris, Assistant Attorney General,
Dennis Paxinos, Yellowstone County Attorney,
Billings, Montana,
Teresa O'Connor, Deputy County Attorney.
Submitted on Briefs: October 3, 1991
Decided: January 16, 1992
Filed:
Clerk
Justice William E. Hunt, Sr., delivered the opinion of the Court.
Appellant Charles W. Biehle, pro set appeals his one count
conviction of felony sexual assault following a jury trial in the
Thirteenth Judicial District Court, Yellowstone County. We affirm.
Appellant has set forth several issues. Those that are not
part of the record will not be considered by this Court. The
following issues will be considered:
1. Whether appellant was denied effective assistance of
counsel when defense counsel stipulated to the introduction of
Exhibits No. 3 and No. 5.
2. Whether there was sufficient evidence to support
appellant's conviction.
3. Whether there was exculpatory medical evidence.
4. Whether the appellant was placed in double jeopardy after
having his motion for a new trial granted following his initial
conviction.
On November 9, 1983, in response to an anonymous phone call,
T. K. , a ten year old, was interviewed by a State social worker.
The victim alleged that she was sexually assaulted by the appellant
on or about the first or second week of October 1983, and on
November 5, 1983. She repeated these allegations on video tape to
a police officer.
On January 10, 1984, appellant was charged with two counts of
sexual assault, a felony, for ''massaging her genitals underneath
her underwear." On June 6, 1984, he was convicted on both counts
in a jury trial. On August 6, 1984, the District Court granted
appellant's motion for a new trial based upon prosecutorial
misconduct. After the motion for new trial was granted,
appellant's counsel, Christopher P. Thimson, was permitted to
withdraw, and John L. Adams was appointed. On May 7, 1985,
appellant was convicted by a jury of Count I and acquitted of Count
11. He was sentenced to serve 20 years in the Montana State
Prison, with the final 10 years suspended. On July 16, 1985, a
timely notice of appeal was filed by appellant's counsel, John L.
Adams. The appeal was subsequently dismissed for failure to timely
file a brief. On June 7, 1990, we reinstated the appeal and
ordered the District Court to appoint counsel. The District Court
appointed Allen Beck as counsel. On October 25, 1990, Beck filed
an Anders brief and raised possible arguments for an appeal, as
required by Anders v. California (1967), 386 U.S. 738, 87 S.Ct
1396, 18 L.Ed.2d 493. Beck also filed a motion to withdraw as
counsel, and this Court granted that motion and allowed the
appellant to proceed with his appeal pro se. On July 8, 1991,
appellant filed his pro se brief to which the State subsequently
responded.
Whether appellant was denied effective assistance of counsel
when counsel stipulated to the introduction of Exhibits No. 3
and No. 5.
This Court uses the two-prong test set out in Strickland v.
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, in
evaluating ineffective assistance claims.
First, counsel's performance must be deficient. To
assess deficient performance, this Court employs the
l'lreasonablyeffective assistance' test of whether a
defendant's counsel acted within the range of competence
demanded of attorneys in criminal cases." (Citation
omitted.) Second, counsel's deficient performance must
have so prejudiced the defendant as to deprive the
defendant of a fair trial. [Citation omitted.] The
standard for evaluating prejudice is whether a reasonable
probability exists that but for counsel's deficient
performance, the trial's outcome would have been
different.
State v. Coates (1990), 241 Mont. 331, 337, 786 P.2d 1182, 1185.
We note that appellant's counsel on the initial appeal did
abandon him which resulted in the dismissal of the appeal. The
United States Supreme Court recognized that the Fourteenth
Amendment guarantees the right to counsel on the first direct
appeal as a right. Penson v. Ohio (1988), 488 U.S. 75, 79, 109
S.Ct. 346, 349, 102 L.Ed.2d 300, 308. An appellant cannot be
denied his right to appeal because of the errors of his counsel.
Pennsylvania v. Finley (1987), 481 U.S. 551, 557, 107 S.Ct. 1990,
1994, 94 L.Ed.2d 539, 547. This Court has rectified this error by
reinstating this appeal and ordering the District Court to appoint
counsel. Thus, appellant has received the appropriate remedy in
this instance.
Appellant's main contention focuses on the stipulation of
Exhibits No. 3 and No. 5. Exhibit No. 3 was a brown manila
envelope containing an unsigned handwritten letter marked at trial
as Exhibit No. 5 that was placed in the mail box of Shirley
Kaufman, T.K.Is mother. The content of the letter included
appellant's admissions of making a mistake and needing to seek help
for his problems. Appellant claimed that defense counsel
stipulated to the admission of the exhibit without his permission.
The record indicated that counsel believed that appellant
agreed to the stipulation of the exhibits, and it appeared that it
was a matter of trial tactics. This Court, in evaluating a defense
counsel's performance, will not second guess trial tactics.
Coates, 786 P.2d at 1185.
The record shows that defense counsel's performance was
competent. Through the efforts of his attorney, the appellant was
acquitted of one of the charges against him. Other evidence of
similar acts of sexual assault was suppressed. We hold that
appellant was adequately assisted in the conduct of the
proceedings.
I1
Whether there was sufficient evidence to support appellant's
conviction.
We have stated previously that in sex offense cases the
victim's testimony need not be corroborated. State v. Gilpin
(1988), 232 Mont. 56, 70, 756 P.2d 445, 453. The rule applies to
child victims of sexual abuse as well. Gilpin, 756 P.2d at 453.
The victim testified that the sexual contact of November 1983 was
committed by the appellant. This testimony is sufficient evidence
to sustain a jury's guilty verdict.
Whether there was exculpatory medical evidence.
Appellant alleged that there was a medical examination of the
victim that proved her hymen was still intact and that this
evidence refuted the victim's claim of penetration. Nothing in the
record indicated that appellant requested this information or that
the medical examination even occurred. Assuming that such record
existed and that the medical information was not exculpatory or
necessary for the preparation of the defense, this Court has stated
that defense counsel's right to review medical and psychological
evidence of the victim is outweighed by the victim's right to
confidentiality. State v. Donnelly (1990), 244 Mont. 371, 376-77,
798 P.2d 89, 92 (overruled on other grounds in State v. Imlay
(Mont. 1991), 813 P.2d 985, 48 St.Rep. 588.)
The appellant's argument is without merit under Montana law.
The statutory definition of sexual contact states the following:
"Sexual contact" means 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.
Section 45-2-101(60), MCA.
The policy underlying our sexual assault statute is to
If 'criminalize and punish sexual or intimate impositions that do not
involve penetration .... State v. Kestner (1988), 220 Mont.
41, 46, 713 P.2d 537, 540, (quoting State v. Weese (1980), 189
Mont. 464, 467, 616 P.2d 371, 373.) It is not necessary for the
victim's hymen to be broken, as the appellant alleged, to
constitute sexual contact. We hold the appellant's contention to
be without merit.
Whether the appellant was placed in double jeopardy after
having his motion of a new trial granted following his initial
conviction.
It has long been the rule that double jeopardy does not attach
after the trial court grants a new trail. State v. Thompson
(1891), 10 Mont. 549, 563, 27 P. 349, 352. In this case, a new
trial was granted at the request of appellant because of
prosecutorial misconduct in closing argument. We hold that double
jeopardy does not attach in this instance.
1
Justice
,