NO. 93-027
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
THE STATE OF MONTANA,
Plaintiff and Respondent,
-vs.-
LESLIE ALLEN LUNSTAD,
Defendant and Appellant.
APPEAL FROM: DistrictCourt of the Seventh Judicial District,
In and for the County of Richland,
The Honorable Richard G. Phillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William F. Hooks, Appellate Public Defender, Helena,
Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Barbara c.
Harris,- Assistant, Helena, Montana: Gary Ryder,
Deputy Richard County Attorney, Sidney, Montana
Submitted on Briefs:
Decided:
Justice James C. Nelson delivered the Opinion of the Court.
This is an appeal from a jury verdict in the Seventh Judicial
District Court convicting Defendant of felony sexual assault. We
reverse and remand for a new trial.
One issue is dispositive of this appeal: Did the District
Court err in admitting prior consistent statements of the alleged
victim?
On November 4, 1991, C.H., a minor, the alleged victim in this
case, told her father that the Defendant, Leslie Lunstad (Mr.
Lunstad), had touched her in a private place. Based on this
allegation, Mr. Lunstad was charged by Information with felony
sexual assault.
At the jury trial, C.H. testified that Mr. Lunstad asked
permission to touch her. C.H. testified that she said "nol', but
that Mr. Lunstad touched her anyway. C.H. stated that Mr. Lunstad
told her not to report the incident to her parents and gave her two
pennies. This incident allegedly occurred on November 4, 1991.
During the State's case-in-chief, the State attempted to
introduce C.H.'s prior consistent statements regarding her version
of the events. The trial judge refused this evidence as
inadmissible hearsay, stating that Mr. Lunstad had not implied that
C.H. had subsequently fabricated her testimony, was improperly
influenced, or had an improper motive.
During the Defendant's case-in-chief, Mr. Lunstad testified
that sometime during the week of October 27 to November 3, 1991, he
and C.H. were playing Nintendo in the family home. C.H. was seated
2
on his lap and Mr. Lunstad had his arms on top of her legs,
operating the Nintendo controller. Mr. Lunstad testified that he
dropped the controller and, when he retrieved the device, he
accidently touched C.H. in her crotch. A week later, on November
4, 1991, Mr. Lunstad testified that he was again playing Nintendo
with C.H., at which time C.H. told Mr. Lunstad she would report the
prior touch to her father if he would not give her a piggy back
ride.
Both Mr. Lunstad and C.H. testified that they were both fully
clothed during this incident and that only one touch occurred. In
dispute was whether Mr. Lunstad purposely or accidently touched
C.H.
On cross-examination of Mr. Lunstad, the State asked him:
Q: So are you saying [that C.H.], when she came before this
jury, she lied?
A: Yes.
Q: And you're saying that she came forward and lied about
the fact that you offered her money not to tell her dad?
A: Yes.
Q: And you're saying that she lied about the fact that you
asked her if you could touch her private parts?
A: Yes.
After this testimony, the State requested permission to present
rebuttal testimony in the form of the prior consistent statements
made by C.H. This request was made pursuant to Rule 801(d)(l)(B),
M.R.Evid., on the basis that Mr. Lunstad had called C.H.'s
credibility into question. The State wished to introduce
statements C.H. made to a police officer, including a tape recorded
3
statement, and statements C.H. made to her counselor. The trial
court allowed these statements as prior consistent statements to
rebut charges of fabrication or motive.
On rebuttal, the police officer who took C.H.'s statement
played a recording of that statement. This statement related
C.H.'s version of the incident, and was essentially the same as her
in-court testimony. The counselor did not testify as to C.H.'s
truthfulness, but testified as follows:
Q: Okay. The question was, you did have an opportunity to
sit through her [C.H.] testimony yesterday?
A: Yes I I did.
Q: And on how many occasions has she related to you her
version of what's taken place?
A: Approximately four times.
Q: Was there any significant factual differences between her
testimony yesterday and the statements that she has given
you?
A: NO.
This evidence was presented on rebuttal to a jury on July 29
and 30, 1992. The jury found Mr. Lunstad guilty of felony sexual
assault. Mr. Lunstad was sentenced to ten years in prison on the
assault charge and ten years in prison for being a persistent
felony offender, all sentences to run consecutively. In addition,
the trial judge designated Mr. Lunstad a dangerous offender and
required him to complete Phase I and II of the sexual offender
treatment program. From that verdict and sentence, Mr. Lunstad
appeals.
Our standard of review relating to discretionary trial court
rulings, such as the decision to allow certain evidence to be heard
4
by the jury, is whether the trial judge abused his discretion in
allowing the evidence. Steer, Inc. v. Dep't. of Revenue (1990),
245 Mont. 470, 474-75, 803 P.2d 601, 604.
One issue is dispositive in this case: did the District Court
err in admitting C.H.' s prior consistent statements?
'
Rule 801(d)(l)(B), M.R.Evid., states:
A statement is not hearsay if . . . [t]he declarant
testifies at the trial or hearing and is subject to
cross-examination concerning the statement, and the
statement is (B) consistent with the declarant's
testimony and is offered to rebut an express or implied
charge against the declarant of subsequent fabrication,
improper influence, or motive. . . .
This rule only applies when the declarant's in-court testimony has
been impeached by another party's allegations of subsequent
fabrication, improper influence, or motive.
The sole basis for allowing C.H. 's prior consistent statements
was the theory that, by agreeing with the State that C.H. was
lying, Mr. Lunstad had charged her with fabrication. The District
Court held that, when Mr. Lunstad agreed that C.H. was lying, he
opened the door for C.H.'s prior consistent statements to be
admitted. We disagree, and hold that the State cannot use this
line of questioning to admit prior consistent statements of a
witness.
In State v. Webb (1992), 252 Mont. 248, 828 P.2d 1351, the
State asked the defendant during cross-examination: "In essence
you are saying that [the informant] was lying?" The defendant
answered, "That is correct." - I 828 P.2d at 1356.
Webb The State
contended that the defendant had attacked the informant's character
and was allowed to present character evidence under Rule 608,
5
M.R.Evid.
On appeal, this Court approved other jurisdictions' holdings
that "neither contradictory evidence nor extensive cross-
examination constitutes an attack upon a witness['] character for
truth and veracity." -, 828 P.2d at 1356.
Webb In -, the State
Webb
opened the door by directly asking the defendant if he believed the
informant was lying. In commenting on the State's position, this
Court stated that the State cannot itself open the door for opinion
testimony regarding the truthfulness of its own witness, Webb, 828
P.2d at 1356. Although Webb involved Rule 608, as opposed to Rule
801, the analysis used in Webb applies in this case.
Here, the trial judge denied the State's request to present
prior consistent statements to the jury during the State's case-in-
chief. Thereafter, the State questioned Mr. Lunstad and asked him
directly if he believed C.H. was lying. The State cannot put a
defendant in this tenuous position and then introduce prior
consistent statements to "rebut" the only answer that the State
knows the defendant can give consistent with his defense. Here,
the State itself opened the door by directly asking Mr. Lunstad if
C.H. was lying, and then attempted to bolster C.H.'s credibility by
the admission of the very prior consistent statements that the
district judge had ruled inadmissible hearsay in the State's case-
in-chief. The State cannot use this type of cross-examination to
get evidence admitted which it could not get admitted prior to its
cross-examination. We hold that it was an abuse of discretion and
reversible error to allow the rebuttal testimony, in the form of
prior consistent statements, to be presented on these facts.
6
For the guidance of the District Court and counsel on retrial
of this case, we also hold that the statements of C.H. were not
admissible under Rule 801(d)(l)(B), M.R.Evid., because such
statements were not made prior to the time C.H.'s alleged motive to
fabricate arose. In this case, Mr. Lunstad claimed that C.H.
threatened to tell her father about the touch if Mr. Lunstad would
not give her a piggy back ride. The only possible motive to
fabricate suggested by Mr. Lunstad was the fact that C.H. was
angered at him for refusing her the piggy back ride. Therefore,
any "motive" arose on November 4, 1991, the day C.H. allegedly made
that statement to Mr. Lunstad. Any statements C.H. made after that
date, including statements to her father (November 4, 1991), the
police officer (November 5 and 6, 1991), and her counselor
(January, 1992), could not be prior consistent statements, because
they were made subseauent to the time C.H.'s alleged motive to
fabricate arose. Therefore, C.H.'s statements were not admissible
as prior consistent statements as contemplated by Rule
801(d)(l)(B), M.R.Evid., and the hearsay exclusion does not apply
in this case.
In State v. Scheffelman (1992), 250 Mont. 334, 820 P.2d 1293,
the prosecutor anticipated that the defendant would allege
fabrication and motive, and addressed the same in her opening
statement. However, in his opening statement, counsel for the
defendant also stated the victim had lied. Scheffelman, 820 P.2d
at 1296. During cross-examination, defense counsel challenged the
victim's testimony. He also alluded to the possibility that the
victim had a motive to fabricate and implied she was subject to
improper influence by the prosecutor. Scheffelman, 820 P.2d at
1296. The State was allowed to present the victim's prior
consistent statements.
On appeal, this Court held that a prior consistent statement
was allowable if it was made before any motive to fabricate had
arisen. However, if a defendant does not assert that the victim is
subsequently fabricating her story, but claims, as in this case,
she was lying all along, prior consistent statements are not
admissible. Scheffelman, 820 P.2d at 1296. In Scheffelman, the
Court held that, because the defendant alleged the victim was
improperly influenced, no error was committed in allowing the prior
consistent statements into evidence under Rule 801. Scheffelman,
820 P.2d at 1296.
In this case, however, defense counsel did not state in her
opening statement that C.H. was a liar. Counsel did not challenge
C.H.'s testimony on cross-examination, did not allude that C.H. was
subject to improper influence by the prosecutor, and did not allege
that she changed her version of the incident. Therefore, on its
facts, Scheffelman is distinguishable from the case at bar.
Similarly, Mr. Lunstad did not conduct a general attack on the
credibility of C.H. of the sort that justified the admission of
prior consistent statements in State v. Medina (1990), 245 Mont.
25, 798 P.2d 1032.
Reversed and remanded for a new tri
8
We Concur:
August 10, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
William F. Hooks
Appellate Public Defender
Capitol Station
Helena, MT 59620
Leslie Allen Lunstad
700 Conley Lake Road
Deer Lodge, MT 59722
Hon. Joseph P. Mazurek, Attorney General
Barbara C. Harris, Assistant
215 N. Sanders, Justice Building
Helena. MT 59620
Gary Ryder, Deputy
Richland County Attorney
Richland County Courthouse
Sidney, MT 59270
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA
BY:Jt. cu
Deputy