NO. 93-618
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
v.
STEVEN HENRICH,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Anne H. Watson, Watson and Watson,
Bozeman, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
George Schunk, Assistant Attorney General,
Helena, Montana
Mike Salvagni, Gallatin County Attorney,
Gary Balaz, Deputy County Attorney,
Bozeman, Montana
Submitted on Briefs: October 28, 1994
Decided: December 8, 1994
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
On April 23, 1993, defendant Steven Henrich was charged by
information filed in the District Court for the Eighteenth Judicial
District in Gallatin County with endangering the welfare of
,
children, a misdemeanor, in violation of 5 45-5-622(2)(a)(i) MCA;
sexual intercourse without consent, a felony, in violation of
5 45-5-503,MCA; incest, a felony, in violation of 5 45-5-507,MCA;
two counts of sexual assault, a felony, in violation of § 45-5-502,
MCA; and two counts of assault, a misdemeanor, in violation of
5 45-5-201(1)(a), MCA. On September 24, 1993, the State filed an
amended information amending one count of misdemeanor assault to
felony assault in violation of 5 45-5-201(3), MCA, and adding
additional facts in support of other charges. Following a jury
trial which was conducted from September 27-29, 1993, Henrich was
convicted of six of the seven offenses charged, sentenced to
22 years in the Montana State Prison, and designated a dangerous
offender. Henrich appeals. We af firm in part and reverse in part.
The issues on appeal are rephrased as follows:
1. Did the District Court abuse its discretion when it
refused to grant Henrich's motion for a mistrial and motion for a
new trial based on a newspaper article about additional charges
against Henrich published in the Bozeman Chronicle the day before
the case was submitted to the jury?
2. Did the District Court abuse its discretion and did
prejudice result when it allowed the jury to listen to a portion of
one of the victim's recorded testimony during deliberations?
3. Was there sufficient evidence for the jury to convict
Henrich?
4. Did the District Court abuse its discretion when it
allowed a school counselor to testify regarding a complaint made by
one of the victims?
5. Did the District Court err when it concluded that Henrich
is a dangerous offender?
6. Did the District Court err when it sentenced Henrich to
the Montana State Prison?
FACTUAL BACKGROUND
Steven Henrich is married to Patricia Henrich. They are the
parents of M.H., born on January 22, 1976, and A.H., born on May 9,
1977. Both daughters were removed from their parents' home after
A.H. complained in February 1992 that Henrich had physically and
sexually abused her sister over a period of five years. At trial,
the girls related the following history of abuse prior to their
removal.
M.H. testified that in 1987, while the family lived in West
Yellowstone, Henrich would occasionally take her to the woods under
the pretext that they were going to shoot weapons. Instead of
shooting, M.H. said that Henrich fondled her and had her perform
sexual acts for his physical gratification. This conduct was the
basis for one count of felony sexual assault.
After they lived in West Yellowstone, but before they moved to
Belgrade, Henrich worked as a chef at Big Sky and lived in the
dormitories with M.H. M.H. testified that while living in the
dormitories, Henrich had sexual intercourse with her. She also
testified about several different time periods during which Henrich
had intercourse with her at other locations from 1988 to 1992.
M.H. testified that the sexual acts were a routine that she
complied with because she was afraid of Henrich. These acts were
the grounds for the charge of sexual intercourse without consent.
M.H. testified that in the fall of 1989, when she was in the
eighth grade, she attended a Halloween dance against Henrich's
wishes. Upon returning from the dance, M.H. stated that Henrich
backhanded her and spanked her with a cribbage board. This conduct
was the basis for one count of misdemeanor assault.
M.H. testified that in February 1992, Henrich had her take
speed or methamphetamine prescribed for him. This was the basis
for the charge that he endangered the welfare of a child.
A.H. alleged that she was also a victim of Henrich's abuse.
She testified that in 1991 or 1992 Henrich, on different occasions,
backhanded her in the face, kicked her in the stomach, and threw
the telephone and electrical tape at her. This conduct was the
basis for a second count of misdemeanor assault. Her testimony
that he rubbed her crotch and vaginawas the basis for the second
count of sexual assault.
These allegations of physical and sexual abuse were first
revealed when A.H. reported the occurrences to Belgrade school
counselors in February of 1992. Following A.H.'s report, she and
M.H. were removed from their parents' home.
This case was tried from September 27-29, 1993. On
September 28, 1993, before the jury began deliberations, the
Bozeman Chronicle published two stories about Henrich. One article
merely summarized the trial. A second article was shaded and
entitled "Man faces pimping charges," and involved additional
charges filed against Henrich on September 17, 1993.
The next morning, Judge Thomas A. Olson discussed the articles
with both attorneys. enrich's counsel immediately moved for a
mistrial because of the publicity. The court instead questioned
each juror individually in chambers to determine if any had read
the article. Judge Olson placed paper over the title and sat 10 to
12 feet from the jurors and asked each juror the following series
of questions:
1. Did that juror subscribe to the Bozeman Chronicle?
2. Did that juror see the Chronicle the preceding evening?
3. Did that juror see the shaded article or the article next
to it about the trial?
4. Did anyone tell that juror about the shaded article or
call their attention to it?
5. Did that juror see the television story about the trial
on Channel 7 the previous night?
None of the jurors stated that they read or heard about
details of the article; nor did any state that they had observed or
heard about the details of the television coverage. As a result,
the court allowed the trial to continue. Henrichfs counsel again
objected.
As the jury was deliberating, they sent a note requesting to
hear M.H.'s testimony, beginning with a specific question the
prosecutor asked M.H. The court sent back the note and requested
the jury to indicate the extent of the requested testimony. ~ f t e r
the jury responded, the court discussed the request with counsel
and replayed that portion of the testimony for the jury. The jury
continued deliberating and later returned a verdict that enrich
was guilty of six of the seven counts with which he was charged.
The court had dismissed the charge of incest following Henrich's
motion for a directed verdict.
Finally, after a sentencing hearing during which the court
heard testimony from a professional counselor, a psychologist,
Henrich, his wife, and others, the court sentenced Henrich to
22 years in prison and designated him a dangerous offender.
Henrich claims numerous errors warrant reversal of his convictions.
We affirm in part and reverse in part.
ISSUE 1
Did the District Court abuse its discretion when it refused to
grant Henrich's motion for a mistrial and motion for a new trial
based on a newspaper article about additional charges against
Henrich published in the Bozeman Chronicle the day before the case
was submitted to the jury?
Our standard of review from a district court's denial of a
motion for mistrial is whether there is clear and convincing
evidence that the trial court ' s ruling was erroneous. State v. Greyfak
(1993), 262 Mont. 401, 404, 865 P.2d 1096, 1098. We review a
6
court's decision to deny a motion for a new trial to determine
whether there is a showing of manifest abuse of discretion. Geiger
v. Sherrodd, Inc. (19931, 262 Mont. 505, 508, 866 P.2d 1106, 1108.
Henrich argues that he was denied a fair trial in violation of the
Sixth Amendment of the U.S. Constitution and Article 11, Section 4,
of the Montana Constitution, because of the second newspaper
article. The article was entitled "Man Faces Pimping Charges," and
discussed charges filed against Henrich on September 17, 1993.
Henrich would have us conclude that the article was
prejudicial per se and require a new trial. This case does not
involve a situation of continuous and massive pretrial publicity
giving rise to due process implications, as in Estes v. Texas (1965),
381 U.S. 532, 85 S. Ct, 1628, 14 L. Ed. 2d 543. This case is more
analogous to our previous decisions regarding prejudicial news
releases during a trial. SeeStatev. Kirkland (l979), 184 Mont. 229, 602
P.2d 586; State v. Weaver (l98l), 195 Mont. 481, 637 P.2d 23.
In Kirkland, television broadcasts during the trial labeled the
defendant as a hired killer. The district court denied the
defendant's motion for a mistrial and admonished the jury to decide
the case based on the evidence presented and not to listen to radio
or television broadcasts or read newspaper reports. We discussed
what action is required of a district court when prejudicial news
releases appear during trial and noted that we must determine
whether the news releases tainted any of the jurors. Kirkland, 602
P.2d at 592. We refused to adopt a rule that would require the
court to voir dire each juror individually.
We held that the determination of whether a defendant's right
to a fair trial had been prejudiced by publicity is within a
district court's sound discretion. Kirkland, 602 P.2d at 594 (citing
Marshallv. Unitedstates (1959), 360 U . S . 310, 79 S . Ct. 1171, 3 L. Ed. 2d
1250) . We reaffirmed this notion in Weaver. In Weaver, the
defendant claimed he was denied a fair trial because of prejudicial
newspaper articles. The trial court admonished the jury to rely
only on the evidence presented in court and not to read the
newspaper. We noted that Montana does not require a district court
to individually question jurors regarding publicity, but rather it
is within the trial court's discretion to determine whether
newspaper articles are prejudicial. Weaver, 637 P.2d at 28. We
required a defendant to show lack of due process or actual juror
partiality. Weaver, 637 P.2d at 28-29. We concluded that the
court's admonitions were sufficient to cure any possible prejudice.
Weaver, 637 P.2d at 29.
In this case, Judge Olson admonished the jury not to let any
other person talk to them about the trial, and not to read about
the case in the newspapers, or listen to radio or television
broadcasts about the trial. After the story appeared in the
newspaper, Judge Olson individually questioned the jurors to
determine the extent to which they were exposed to, or influenced
by, the article. They all denied reading the article or knowing of
its contents. Nothing in their responses indicates prejudice from
the article. To hold otherwise would require the conclusion that
the jurors were not truthful when they responded to the court's
questions. We have no basis for such a conclusion. Nor has
Henrich offered any. We conclude that the District Court did not
abuse its discretion by the manner in which it determined whether
unfavorable news stories were prejudicial to Henrich and did not
err when it denied Henrich's motions for a mistrial and for a new
trial.
ISSUE 2
Did the District Court abuse its discretion and did prejudice
result when it allowed the jury to listen to a portion of one of
the victim's recorded testimony during deliberations?
Our standard of review of a district court's decision to allow
or disallow a jury's request to replay trial testimony is whether
the district court abused its discretion. State v. Evans (1993), 261
Mont. 508, 511, 862 P.2d 417, 418. Henrich claims that the
District Court committed reversible error by allowing a portion of
M.H.'s testimony to be replayed for the jury during its
deliberations.
Montana statutorily altered the common law rule that did not
allow the trial court to reread a transcript of a witness's
testimony or to replay recorded testimony during deliberations.
Section 46-16-503(2),MCA, provides:
After the jury has retired for deliberation, if
there is any disagreement among the jurors as to the
testimony or if the jurors desire to be informed on any
point of law arising in the cause, they shall notify the
officer appointed to keep them together, who shall then
notify the court. The information requested may be
given, in the discretion of the court, after consultation
with the parties.
The common law rule was designed to prevent undue emphasis being
placed on materials given to the jury as opposed to other evidence
in the case. We have recognized that this rule still applies in
most cases. Evans, 862 P.2d at 419.
Recognizing 5 46-16-503(2), MCA, and the difficulty of
allowing testimony to be replayed, this Court has imposed a
stringent requirement upon district courts faced with this issue.
We set forth a specific instruction for these circumstances in State
v. Harris (1991), 247 Mont. 405, 808 P.2d 453, and restated it in
Evans, 862 P.2d at 419-20. When dealing with requests from the jury
about witness testimony, the courts should answer the request with
this instruction:
It would be error for me to furnish you with a transcript
of any particular witness for the reason that in
rendering your verdict, you should not give any undue
emphasis to the testimony of any one witness to the
exclusion of all others. Instead, you should consider
all of the evidence as a whole in rendering your verdict.
However, if you have some particular reason or point that
you are trying to resolve that relates to the evidence of
this witness, you may submit that question to me in
written form, and I will give it consideration.
Harris, 808 P.2d at 460.
In Harris, we acknowledged that testimony should be reread to
the jury only in limited circumstances contemplated by
5 46-16-503( 2 1 , MCA. An example would be a witness's testimony
regarding basic factual matters like "the width of a street, the
height of an object, distance, time or some other limited request,
but not the entire testimony of the witness." Harris, 808 P.2d at
460.
In this case, Judge Olson ensured that M.H.'s entire testimony
was not replayed. He also consulted the jury regarding the extent
of the testimony that it was requesting. In spite of these
precautions, we conclude that the District Court erred by failing
to give the instruction set forth in Harris.
However, before a procedural error is a basis for reversal, it
must be shown to have been prejudicial. Section 46-20-701, MCA.
After listening to that portion of M.H.'s testimony which was
replayed for the jury, we conclude that Henrich was not prejudiced
by the court's failure to give the Harris instruction.
We have previously concluded that it is prejudicial to replay
testimony if it would emphasize the testimony of one witness where
several other witnesses have testified about the same point. Evans,
862 P.2d at 420.
In Evans, the defendant was charged with obstructing justice.
A critical element was whether the defendant knew the person hiding
in his home was an offender. Several witnesses testified to this
crucial element, including a detective. The jury requested to
rehear part of the detective's testimony, and the court refused the
request. We affirmed the district court because replaying the
detective's testimony on a critical point of proof about which
several witnesses testified would emphasize the detective's
testimony over several others. Evans, 862 P.2d at 420.
The same concern was not present in this case. There were not
numerous witnesses who testified to the acts with which the
replayed portion of M.U.'s testimony was concerned. The only
witnesses were M.H. and Henrich. The fact that her testimony had
to be balanced against Henrich's denial was obvious, and thus, an
instruction to that effect was not as critical as it would be under
other circumstances which we have considered. We conclude that
although the District Court erred by replaying a portion of M.H.'s
testimony without first giving the proper instruction to the jury,
the record does not demonstrate that the error was prejudicial.
ISSUE 3
Was there sufficient evidence for the jury to convict Henrich?
The standard of review is whether the evidence viewed in a
light most favorable to the State would permit any rational trier
of fact to conclude that the elements of the crimes charged were
proven beyond a reasonable doubt. State v. Cates (1990), 2 4 1 Mont . 282,
285, 787 P.2d 319, 321. Henrich argues that the only evidence
supporting his conviction was testimony by A.H. and M.U. He claims
that their testimony is not credible because they are minors who
made inconsistent statements, had a history of making false
accusations, and had a motive to fabricate their testimony.
Substantial evidence is evidence that a reasonable mind might
accept as sufficient to support a conclusion. Statev. Wilson (1981),
193 Mont. 318, 327, 631 P.2d 1273, 1278. In sex offense cases,
including those that involve small children, the victims' testimony
need not be corroborated. Statev. Gilpin (1988),232 Mont. 56, 70, 756
P.2d 445, 453. The weight and credibility of witnesses is
exclusively within the province of the jury. State v. Urness (1989),
239 Mont. 58, 60, 778 P.2d 419, 421.
Henrich would have us conclude that A.H.'s and M.H.'s
testimony was not credible. However, the previous authorities are
based on the notion that jurors are in the best position to draw or
reject that conclusion. In this case, they rejected it.
Furthermore, except for the incest charge which was dismissed
by directed verdict, and Count 1, Henrich did not allege at the
time of trial that the testimony was insufficient to establish the
elements of the specific offenses charged. Therefore, that claim
was waived for purposes of appeal, except for Count 1, which
related to endangerment of a child in violation of 5 45-5-
622 (2)(a)(i), MCA.
Henrich argues that the evidence is insufficient to establish
that he was guilty of endangering the welfare of children pursuant
to 5 45-5-622(2)(a)(i), MCA, by supplying M.H. with an intoxicating
substance. An intoxicating substance is a controlled substance as
defined in Title 50, Chapter 32, MCA. Methamphetamine, the alleged
drug given to M.H., is a controlled substance as defined in
5 50-32-224(3)(c), MCA. The jury found Henrich guilty of this
offense based solely on M.H.'s testimony that Henrich gave her
speed or methamphetamine that was prescribed for him.
We have recognized that it is not necessary to have a
suspected intoxicating substance tested by the state crime lab to
substantiate a conviction for a drug related offense. State v. Salois
(1988), 235 Mont. 276, 279, 766 P.2d 1306, 1309. Like other
elements of a criminal offense, proof that a drug is an
intoxicating substance may be established by circumstantial
evidence. Slate v. Dunn (l97O), 155 Mont. 319, 472 P.2d 288. To
justify a conviction based on circumstantial evidence that a
substance is a dangerous drug or intoxicating substance, however,
the facts and circumstances must be entirely consistent with guilt
and inconsistent with any other rational theory. State v. Starr (1983),
204 Mont. 210, 215, 664 P.2d 893, 896 (citing Statev. Stoddard (l966),
147 Mont. 402, 412 P.2d 827).
In Dunn, the defendant gave two teenage girls pills alleged to
be LSD. The girls both testified that they hallucinated from the
drugs. In addition, a doctor expressed an opinion that the drugs
were LSD, or a combination of LSD and an amphetamine, and a parent
of one of the girls described her behavior as she hallucinated.
Dunn, 472 P.2d at 296-97.
However, the circumstantial evidence in this case was not
sufficient to establish Henrich was guilty of the charged offense.
M.H.'s unqualified opinion is insufficient to establish that the
alleged drug was methamphetamine. The State did not introduce a
bottle of the pills, any analysis of the pills, or any expert
analysis of M.H.'s reaction to the pills. Her testimony that she
shook, was wide awake, and that her hair tingled from ingestion of
the substance was not supported by other testimony, as in Dunn.
We conclude that substantial evidence did not support the
jury's conclusion that Henrich gave M.H. methamphetamine.
Therefore, his conviction for endangering the welfare of children
is reversed.
We conclude that Henrich's other convictions were supported by
substantial evidence.
ISSUE 4
Did the District Court abuse its discretion when it allowed a
school counselor to testify regarding a complaint made by one of
the victims?
Henrich moved for a mistrial based on the admission of hearsay
evidence. We will affirm a district court's denial of a motion for
mistrial unless there is clear and convincing proof that the
district court erred in its ruling. Greytak, 865 P.2d at 1098.
Neil Bricco, a Belgrade school counselor, testified about a
meeting he had with A.H. on February 28, 1992. At this meeting,
A.H. told Bricco about the sexual and physical abuse, including
abuse of M.H. The court decided to allow Bricco to testify about
what A.H. told him regarding her situation. However, Bricco began
to testify that A.H. told him that Henrich sexually abused M.H.
Henrich objected to this testimony and requested a mistrial. The
court ordered that the testimony of Bricco regarding the abuse of
M.H. be stricken, admonished the jury to ignore it, and denied
Henrich's motion for a mistrial.
The district court is in the best position to determine the
jurors' reaction to inadmissible evidence and to decide whether a
mistrial is necessary. Statev. Seaman ( l 9 8 9 ) , 2 3 6 Mont. 4 6 6 , 4 7 5 - 7 6 ,
771 P.2d 9 5 0 , 9 5 6 . Here, the court properly ordered the testimony
stricken and admonished the jury. In addition, A.H. testified
personally that she told Bricco about M.H.'s abuse. Henrich has
failed to establish clear and convincing proof that the District
Court erred when it denied his motion for a mistrial, or that
Bricco's testimony was more harmful than A.H.'s testimony to the
same facts in person.
Henrich challenges other aspects of Bricco's testimony. The
prosecutor asked Bricco " [hlow open are children who have been
sexually abused to talking about that with a counselor." Henrich
objected, stating that Bricco was not qualified to render an
opinion on this issue. The court overruled the objection and
Bricco responded that the abuse is usually kept within the family.
Henrich now argues that Bricco lacked personal knowledge to answer
this question, or was not an expert qualified to render an opinion
on this issue, and Bricco's testimony improperly bolstered A.H.'s
testimony.
We do not decide whether Bricco's testimony is relevant
evidence, but only address the issue raised by Henrich's objection,
i.e., whether Bricco was qualified or had personal knowledge. Rule
602, M.R.Evid., states:
A witness may not testify as to a matter unless
evidence is introduced sufficient to support a finding
that the witness has personal knowledge of the matter.
Evidence to prove personal, knowledge may, but need not,
consist of the witness' own testimony. This rule is
subject to the provisions of Rule 703, relating to
opinion testimony by expert witnesses.
Bricco testified that he was a school counselor for seven
years. He did not specialize in counseling sexually abused
children, but did encounter them while providing general
counseling. He stated that he saw hundreds of children in the two
years he counseled at Belgrade. Of these children, Bricco stated
that about ten percent were sexually abused. He discussed sexual
abuse with numerous children. How open children were about sexual
abuse was, therefore, a matter of his personal counseling
experience. We conclude that Bricco was merely stating a personal
observation, and that the District Court did not err when it
admitted his testimony.
ISSUE 5
Did the District Court err when it concluded that Henrich is
a dangerous offender?
A district court is required to articulate its reasons for its
determination that an offender is a dangerous offender and must do
more than merely recite the statutory Language. State v. Morrison
(1993), 257 Mont. 282, 287-88, 848 P.2d 514, 517-18. Henrich
argues that the court erred when it determined that he was a
dangerous offender for purposes of parole eligibility. Although he
17
cites no case authority, and does not claim that the court failed
to articulate its reasons, he asserts several challenges.
Henrich's main argument is that evidence did not support the
court's dangerous offender determination. The court shall
designate an offender as nondangerous for parole eligibility
purposes if the court has determined, based on the presentence
report, evidence at trial, and the sentencing hearing, that the
offender "does not represent a substantial danger to other persons
or society." Section 46-18-404(1),MCA. If the court determines
that the offender is dangerous, that determination shall be made
part of the sentence imposed and shall be stated in the judgment.
Section 46-18-404(3),MCA.
The District Court considered the presentence investigation
report, evidence at trial, and the sentencing hearing. Because of
the nature and the duration of the abuse, the court found that
Henrich was a substantial danger to his daughters. Posing a threat
of harm to others is a sufficient basis for designation as a
dangerous offender.
Henrich also argues that we should reverse the District
Court's dangerous offender designation because he was not given
notice before trial in violation of his due process rights. We
disposed of a similar argument in State v. Krantz (1990), 241 Mont . 501,
788 P.2d 298, cert. denied (l99O), 498 U.S. 938, where we stated that
notice of the sentencing hearing itself is sufficient notice of a
potential dangerous offender designation because the sentencing
court is required to consider the issue. Krantz, 788 P.2d at 305.
Finally, Henrich asserts that we should reverse the court's
dangerous offender finding because there is no proof beyond a
reasonable doubt that Henrich is dangerous. Dangerousness is not
an element of the offenses charged and need not be proven beyond a
reasonable doubt. Rather, the Montana Legislature has decided that
the dangerous offender determination is a sentencing factor. Krantz,
788 P.2d at 305. We conclude that the District Court articulated
sufficient reasons when it determined Henrich was dangerous to
other persons, and that his designation as a dangerous offender did
not violate Henrich's right to due process.
ISSUE 6
Did the District Court err when it sentenced Henrich to the
Montana State Prison?
Henrich contends that his sentence to the Montana State Prison
was contrary to our decision in S t a t e v . h l a y (1991), 249 Mont. 82, 813
P.2d 979, cert.dismissed (1992), 113 S. Ct. 444, 121 L. Ed. 2d 310. In
Imlay, the defendant's prison sentence for sexual assault was
suspended on the condition that he complete a sexual therapy
program. The defendant attended sexual therapy programs but
refused to admit his guilt, which was a prerequisite to completion
of any treatment program. As a result, his suspended sentence was
revoked and the defendant was sentenced to prison. In Imlay, we
held that the defendant was punished for exercising his right
against self-incrimination, as protected by the Fifth Amendment,
because he was sentenced to prison for refusing to confess to the
crime. Imlay, 813 P.2d at 985.
Henrich's main challenge stems from a counselor's presentence
sexual evaluation that recommended incarceration because Henrich
continued to deny his guilt and rehabilitation was unlikely.
Henrich objected to the report, claiming it violated rights
protected by the Fifth Amendment to the U.S. Constitution, as set
forth in Imlay.
Imlay does not prevent a professional counselor from testifying
at the sentencing phase that, in his or her opinion, a defendant
ought to be incarcerated. Rather, Imlay prevents a sentencing court
from incarcerating a defendant for refusing to confess to the crime
in order to complete treatment that is a condition of a suspended
sentence.
At the sentencing hearing held October 28, 1993, the court
indicated it considered Henrich's characteristics, the presentence
investigations, criminal record, conduct, and psychological
reports. The District Court decided that Henrich's prospects of
rehabilitation were slim, that the crimes continued over a
significant time period, and that Henrich was dangerous. The court
considered other alternatives, but Henrich was sent to prison for
punishment because ,of the severity of his crimes and the slim
prospects for rehabilitation, not because he failed to admit his
guilt. Therefore, we conclude that the District Court did not err
when it sentenced Henrich to the Montana State Prison.
We affirm in part and reverse in part the judgment of the
District Court.
We concur:
Justice Karla M. Gray, dissenting.
I concur in the Court's opinion on all issues except issue 2,
whether the District Court abused its discretion in allowing the
jury to listen to a portion of one of the victim's recorded
testimony. On that issue, I agree with most of the Court's
analysis, but dissent from its conclusion that no prejudice
resulted. As a result, I disagree with the Courtls resolution of
issue 2.
The portion of M.H. Is testimany which was replayed for the
jury was specific to acts of sexual intercourse and sexual abuse
between M.H. and Henrich alleged to have occurred in January and
February of 1992. The only testimony regarding those acts came
from M.H. and Henrich; needless to say, those testimonies were
contradictory. Clearly, the jury's determinations regarding the
credibility of the witnesses and the weight to be given to the
respective and opposite versions of events offered by the State and
Henrich were critical factors here.
Under such a circumstance, and given the emotional nature of
M.H. 's testimony replayed to the jury, I cannot agree with the
Court's conclusion that Henrich was not prejudiced. Under these
circumstances, replaying that portion of M.H.Is testimony unduly
emphasized the testimony of the victim over that of the accused, to
the prejudice of the latter. I conclude that the District Court
abused its discretion in allowing the jury to hear again the
portion of M.H.'s testimony at issue here.