NO. 93-264
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
STATE OF MONTANA,
Plaintiff and Respondent,
-v-s-
BILL J. HENDERSON,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable Douglas G. Harkin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Edmund F. Sheehy, Jr.; Cannon and Sheehy,
Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Barbara Harris, Assistant Attorney General,
Helena, Montana
Robert L. Deschamps, III, County Attorney,
Missoula. Montana
Submitted on Briefs: February 17, 1994
Decided: July 7, 1994
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
Bill Henderson was convicted of accountability for incest and
sexual intercourse without consent in the Fourth Judicial District
Court, Missoula County. He correctly asserts error in the District
Court's refusal to grant a directed verdict on the accountability
for incest charge and its admission of expert testimony. We
reverse and remand.
Bill Henderson (Henderson) was the stepfather of A.C., D.C.,
and B.C., the natural children of his wife, Stacey Henderson. The
children lived with the couple until moving to Alaska to live with
their maternal grandparents in December of 1984.
In June of 1985, the children's grandmother discussed the
topic of sexual abuse with A.C. and asked if she had ever been
sexually abused. A.C. responded that she had been abused by
Henderson. The next day, the grandmother took A.C. to Anne Drake,
a family therapist. A.C. repeated her sexual abuse allegations and
Drake contacted the Alaska Division of Family and Youth Services,
which initiated a criminal investigation. During the
investigation, the children recounted acts of simulated sexual
intercourse between A.C. and her brothers and acts of sexual
intercourse between Henderson and A.C.
The State of Montana (State) charged Henderson with
accountability for incest and sexual intercourse without consent:
he was convicted of these offenses on June 10, 1988. Henderson
failed to appear for sentencing and a bench warrant was issued.
2
Henderson was apprehended four and one-half years later on December
31, 1992.
In a written judgment dated March 19, 1993, the District Court
sentenced Henderson to consecutive terms of incarceration totaling
sixty years and recommended that Henderson not be eligible for
parole. The parole board notified the District Court that the
language in the judgment did not prevent Henderson from being
paroled and, on April 9, 1993, the District Court entered an
amended judgment precluding parole or participation in a supervised
release program. Additional facts are included in our discussion
of the issues.
Did the District Court abuse its discretion by denying Henderson's
motion for a directed verdict of acquittal on the accountability
for incest charge?
The State charged that Henderson "knowingly before and during
the commission of the offense of incest with the purpose to promote
such commission solicited [B.C.] and [D.C.] to have sexual contact
with their sister [A.C.]." (Emphasis added.) This charge stemmed
from the childrenUs accounts of incidents where Henderson made D.C.
and B.C. remove their clothes, lie on top of the naked A.C., and
'*move up and down." While the children performed these simulated
sex acts, Henderson masturbated nearby. At the close of the
State's case, Henderson moved for a directed verdict of acquittal
on the accountability charge. The District Court denied the motion
and the jury found Henderson guilty of the offense.
The grant or refusal of a directed verdict is within the trial
court's discretion. State v. Downing (1989), 240 Mont. 215, 217,
3
783 P.2d 412, 413. A directed verdict is appropriate only where
there is no evidence upon which a trier of fact could base a guilty
verdict. State v. Matson (1987), 227 Mont. 36, 42, 736 P.2d 971,
974.
Henderson argues that the District Court erred in denying his
motion because the physical contact between the children did not
constitute incest and, as a result, he cannot be convicted of
accountability for that offense. We agree.
A person is legally accountable for the conduct of another
when:
either before or during the commission of an
offense with the purpose to promote or facilitate
such commission, he solicits, aids, abets, agrees,
01: attempts to aid such other person in the
planning or commission of the offense.
Section 45-2-302(3), MCA. A charge of accountability under § 45-2-
302(3), MCA, must arise from the commission of an underlying
offense. See Downinq, 783 P.2d 412, 414. The underlying offense
here was the alleged incest involving A.C. and her brothers. Thus,
the District Court properly denied Henderson's motion for a
directed verdict if the State produced evidence upon which a jury
could find that the acts of simulated intercourse between A.C. and
her brothers constituted the offense of incest.
Section 45+-507(l), MCA, states in relevant part: "A person
commits the offense of incest if he knowingly . . . has sexual
contact as defined in 45-2-101 with an ancestor, descendant, a
brother or sister . . ., or any stepson or stepdaughter." Sexual
contact is "any touching of the sexual or other intimate parts of
4
the person of another for the purpose of arousing or gratifying the
sexual desire of either party." Section 45-2-101(60), MCA. This
definition of sexual contact requires that either the person
performing the touching or the person being touched engage in the
touching for the purpose of sexual arousal or gratification.
Therefore, the State was required to introduce evidence from which
the jury could find that one of the children engaged in these
simulated sex acts for the purpose of sexual arousal or
gratification.
The State's evidence did not establish that the children
engaged in the intimate touching for this purpose. Indeed, the
State's witnesses established the opposite; the children were angry
because of the coerced acts, considered the acts embarrassing, and
did not want to participate in the acts. We conclude that the
State failed to introduce evidence on which the jury could find
that the children committed the offense of incest and, therefore,
Henderson could not be legally accountable for that offense under
5 45-Z-302(3), MCA.
The State argues that the evidence established accountability
for incest pursuant to § 45-2-302(l), MCA. We observe, however,
that the State framed the accountability for incest charge using
the language of 5 45-2-302(3), MCA, and, in its argument opposing
the motion for a directed verdict, the State clearly stated that
the charge was based on subsection (3) of the statute. It is
axiomatic that a party may not change the theory on appeal from
that advanced in the district court. Donnes v. State ex rel.
5
Superintendent of Public Instruction (1983), 206 Mont. 530, 537,
672 P.2d 617, 621. This principle is especially important in
criminal prosecutions where the State must inform the defendant of
the nature of the criminal charges so the defendant may present a
defense. State 'v. Sanderson (1985), 214 Mont. 437, 453-54, 692
P.2d 479, 488. We decline to address the merits of this argument.
Absent evidence that the offense of incest was committed,
there was no evidence upon which the jury could base a verdict of
guilty on the accountability for incest charge. We hold,
therefore, that the District Court abused its discretion in denying
Henderson's motion for a directed verdict of acquittal on that
charge.
Did the District Court abuse its discretion in admitting the
testimony of Anne Drake?
Anne Drake began counseling the children to address emotional
problems associated with their move to Alaska. Her practice
consisted primarily of family and marital counseling. She began
counseling the children regarding the alleged sexual abuse,
however, following A.C.' s disclosure to her grandmother in June of
1985.
During trial, the State offered Drake as an expert witness to
testify to the validity of the children's allegations of sexual
abuse and A.C.'s statements identifying Henderson as the
perpetrator. Over Henderson's objection, the District Court
accepted Drake as an expert witness and admitted her testimony.
The admissibility of evidence rests within the discretion of
6
the trial court and is reviewed only for a manifest abuse of that
discretion. Stat@ v. Van Pelt (1991), 247 Mont. 99, 104, 805 P.2d
549, 552. A party's assertion of error "must stand or fall on the
ground relied on by the trial court." State Dep't of Highways v.
DeTienne (1985), 218 Mont. 249, 256, 707 P.2d 534, 538.
A. Drake's testimony regarding the validity of the children's
statements.
The parties argue for and against the retroactive application
of cases determining the necessary qualifications for an expert
witness on child sexual abuse which were decided between the 1988
trial of this matter and Henderson's sentencing in 1993. Henderson
argues for application of State v. Harris (1991), 247 Mont. 405,
808 P.2d 453, and State v. Scheffelman (1991), 250 Mont. 334, 820
P.2d 1293. Application of Scheffelman would mandate a conclusion
that Drake did not possess the needed qualifications for expert
witness status and, on that basis, that the District Court erred by
admitting her testimony regarding the validity or credibility of
the children's statements. The State argues against application of
those cases: according to the State, State v. Geyman (1986), 224
Mont. 194, 729 P.2d 475, should be applied to affirm the District
Court's admission of Drake's testimony.
The parties' arguments relate to whether Drake was qualified
as an expert on child sexual abuse to offer an opinion on the
credibility of the children's statements. Our decision, however,
addresses the issue raised by Henderson's objection at trial. That
objection, although somewhat ambiguous, essentially was that
7
Drake's opinion on the validity of the children's statements lacked
an adequate foundation.
Following Drake's testimony regarding her professional
background, Henderson voir dired Drake. Henderson inquired about
the "generally accepted" criteria used in validating a child's
allegations of sexual abuse and whether Drake had experience in
assessing the validity of such allegations. Drake responded that
the means of establishing the validity of allegations made by a
child A.C.'s age involved reviewing and determining the consistency
of the child's statements.
In response to questions regarding the statements she actually
reviewed in forming her opinion, Drake indicated that she had not
read any of the children's statements or medical reports, viewed
the videotaped depositions, ortalkedto any investigators assigned
to the case. She testified that her determination that A.C.'s
statements were consistent and, therefore, Walid" or credible, was
based largely on the similarity of A.C.'s statements to Drake and
her grandmother.
Henderson objected to Drake expressing an opinion on the
validity of A.C..'s statements because, according to her own
testimony, the opinion was not based on the generally accepted
criteria for validating such statements. The District Court
overruled the objection and allowed Drake to testify that she
believed What what the children told [her] did indeed happen to
them," and "[she] felt like they were quite honest and candid with
[her]."
Rule 703, M.R.Evid., which was adopted verbatim from the
federal rule, addresses the foundation necessary for expert
opinion; it permits an expert to use sources and kinds of
information which other experts in that particular field reasonably
rely on to form an opinion on a particular subject. "In
determining whether an expert's reliance on information is
reasonable, the courts evaluate the opinion and its foundation on
a case-by-case basis." 3 Weinstein's Evidence g 7031033, 703-24
(1993). In instances where the expert lacks an adequate basis, the
trial court must reject the opinion testimony. See Cella v. U.S.
(7th Cir. 1993), 998 F.2d 418, 423.
According to Drake, child sexual abuse experts form opinions
regarding the validity of a child's statements by reviewing and
determining the consistency of the child's various reports. Based
on DrakeIs own testimony that she did not determine the consistency
of the children's numerous statements and formed her opinion based
on limited statements made by A.C., we conclude that Drake's
opinion on the validity of the children's statements lacked an
adequate foundation. We hold, therefore, that the District Court
abused its discretion by admitting that opinion testimony.
B. Drake's testimony repeating A.C. 's statements identifying
Henderson as the perpetrator.
The State argues that Henderson failed to object to Drake's
testimony repeating A.C. 's out-of-court statements identifying
Henderson as the perpetrator and, as a result, the issue is not
properly before us. We disagree.
9
After hearing the parties' arguments, the District Court
determined that Drake's testimony was admissible pursuant to the
hearsay exceptions contained in subsections (4) and (24) of Rule
803, M.R.Evid. Henderson subsequently preserved his objection that
the testimony was inadmissible pursuant to Rule 803(24), M.R.Evid.,
on the record prior to Drake's direct examination. This procedure
meets the requirement of Rule 103(a)(l), M.R.Evid., that a specific
objection appear of record. Counsel are not required to restate an
objection once it has been made and preserved. We conclude that
this issue is properly before us.
Henderson urges the application of our 1991 Harris decision to
resolve the issue of whether Drake's testimony repeating A.C.'s
statements identifying Henderson as the perpetrator was properly
admitted. He contends that, under Harris, this testimony is
inadmissible pursuant to the Rule 803(24), M.R.Evid., exception
because A.C.' s own testimony at trial was the most probative
evidence on the subject. The State does not address this issue
separately but merely restates its opposition to applying any
decisions retroactively to the time of the 1988 trial in this case.
No retroactive application is necessary to conclude that
Drake's testimony in this regard was inadmissible hearsay.
Henderson was convicted on June 10, 1988, and was scheduled to
appear for sentencing on August 18, 1988. Had he appeared for
sentencing and thereafter appealed his conviction, our decision in
State v. J.C.E. (1988), 235 Mont. 264, 767 P.2d 309, clearly would
have applied to Henderson's appeal.
10
In J.C.E., the district court excluded as hearsay a
counselor's testimony regarding a child incest victimus out-of-
court statements identifying the defendant as the perpetrator. On
a-w-1, the State argued that the counselor's testimony was
admissible pursuant to Rule 803 (4) I M.R.Evid., the medical
diagnosis and treatment exception to the hearsay rule. J.c.E., 767
P.2d at 313. We refused to expand that exception to allow the
admission of a child's hearsay statements regarding alleged
incidents of sexual abuse through the testimony of a family
counselor even where, as in J.C.E., the child victim did not
testify at trial. J.C.E., 767 P.2d at 313. Our decision was based
Oil the conclusion that the circumstantial guarantee of
trustworthiness underlying the medical treatment exception is "less
forceful" in cases involving children because a "child might not
comprehend the necessity of telling a doctor the truth in order to
aid diagnosis and treatment." J.C.E., 767 P.2d at 314.
The District Court in this case faced a situation similar to
that presented by J.C.E. in that the State sought to admit A.C.'s
hearsay statements identifying Henderson as the perpetrator through
Drake's testimony. Here, the District Court admitted the testimony
pursuant to Rule 003(24), M.R.Evid., the catch-all exception to the
hearsay rule which allows admission of statements having
circumstantial guarantees of trustworthiness comparable to the
other exceptions listed in Rule 803. It reasoned that a child's
statements to a family counselor possessed a circumstantial
guarantee of trustworthiness comparable to statements made to a
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medical doctor which are admissible pursuant to Rule 803(4),
M.R.Evid. Having rejected such testimony in J.C.E., under the more
direct Rule 803(a), M.R.Evid., exception for lack of sufficient
guarantees of trustworthiness, we cannot conclude that the
testimony at issue here possessed sufficient guarantees of
trustworthiness to warrant admission under the "other exceptions"
provided in Rule 803(24), M.R.Evid. We hold, therefore, that the
District Court abused its discretion by admitting Drake's testimony
repeating A.C.'s hearsay statements identifying Henderson as the
perpetrator.
Henderson raises two additional issues: whether the District
Court had authority to amend the written judgment and whether the
twenty-year sentence for accountability for incest was lawful. Our
resolution of the above issues renders it unnecessary to address
the additional issues.
Reversed and remanded for entry of a directed verdict of
acquittal on the charge of accountability for incest and for a new
trial on the charge of sexual intercours;e without consent.
July 7, 1994
CERTIFICATE OF SERVICE
I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:
Edmund F. Sheehy, Jr.
Cannon & Sheehy
P.O. Box 5717
Helena, MT 59604-5717
Hon. Joseph P. Mazurek
Attorney General
Justice Bldg.
Helena, MT 59620
Robert L. Deschamps, III, County Attorney
Betty Wig, Deputy
Missoula County Courthouse
Missoula, MT 59802
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA