State v. Alexander

NO. 93-456
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994

STATE OF MONTANA,
Plaintiff and Respondent,
-v-
PAUL A. ALEXANDER,
Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Ted 0 Lympus, Judge presiding.
.

COUNSEL OF RECORD:
For Appellant:
Don Vernay, Kalispell, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Barbara C.
Harris, ~ s s i s t a n t A t t o r n e y G e n e r a 1 ,Helena, Montana;
Thomas J. Esch, Flathead County Attorney, Valerie D.
Wilson, Deputy, Kalispell, Montana

Submitted on Briefs: February 17, 1994
Decided: May 2 4 , 1 9 9 4
Filed:
Justice Fred J. Weber deliversd the Opinion of the Court.

This is an appeal by defendant Paul A. Alexander from the
judgment entered in the Eleventh Judicial District Court, Flathead
County, following a jury conviction of one count of sexual
intercourse without consent and one count of sexual assault, both
felonies. We affirm in part and reverse in part and remand to the
District Court for resentencing.
Alexander presents two issues for our review:
I. Did the District Court err in permitting the jury to hear
improper hearsay testimony?
11. Did the District Court err in refusing to continue the
sentencing in order to allow the inclusion of a sex offender
evaluation in the Pre-Sentence Investigation?
Paul A. Alexander (Alexander) was originally charged with two
counts each of sexual assault and sexual intercourse without
consent, all felonies, involving two of his step-grandchildren, a
boy and a girl. The boy was eleven years old at the time Alexander
was charged with the offenses. The charges regarding the five-
year-old girl were later dismissed upon motion by the State that
she was not competent to testify.
The alleged abuse of Alexander's step-grandson had begun when
he was in the first or second grade and had continued until he was
in the fourth grade. Testimony showed that the victim was alone
with his step-grandfather almost on a daily basis, that they shared
a "special relationshipw and spent a good deal of time together.
The victim was often alone in the house with Alexander while his

2
mother, grandmother and other household members were outdoors
working horses or otherwise absent. Further, the victim, his
parents and older brother had stayed with the Alexanders for a
period of nine months in 1988 while their home was being
constructed.
In April of 1992, Alexander and his wife separated. The
victim's mother testified that in August of 1992, her son (the
victim) came to her very upset, crying and feeling he had done
something wrong because of something Alexander had done to him.
The mother took him to a counselor and the sexual abuse was
subsequently reported to the police. Alexander was tried before a
jury on June 16 and 17, 1993, for committing the two offenses
involving his step-grandson. On June 17, 1993, the jury returned
a guilty verdict for each of the offenses against the boy.
Prior to the trial, on June 16, 1993, Alexander filed a Motion
in Limine to bar statements made by the victim to several persons
as inadmissible hearsay. Although the court granted the
defendant's motion subject to allowance by the court pursuant to
Rule 801(d)(l)(A) or (B), M.R.Evid., the prosecution made several
references to the material covered by Alexander's motion in its
opening statement during the trial. Testimony elicited by the
prosecution and objected to by Alexander as hearsay was allowed
over his ongoing objections.
During a recess of the trial, Alexander moved the court for a
mistrial based on the following four points: (1) in opening
statements, the State violated the Order in limine by referring to
statements made by the victim to Brad Custer, a school counselor,
that the abuse had occurred in Alexander's home; (2) also in
opening statements, the State violated the Order in limine by
referring to statements made by the victim to Detective Maxine
Lamb; (3) Brad Custer's testimony stating that the victim had told
him that the abuse occurred in his step-grandfather's house; and
(4) the testimony by the victim's mother concerning what her son
had told her about the alleged abuse and what a counselor had told
her concerning the abuse. Alexander's motion for a mistrial was
denied.
Following that denial of his motion, Alexander again objected
to statements introduced by Robert Piersall (Piersall), a licensed
social worker in private practice in Kalispell, who had treated the
victim for sexual abuse when the victim's parents brought him to
Piersall for counseling. The District Court allowed Piersall to
testify about a post-traumatic stress disorder which Piersall had
concluded that the victim suffered from and which was evident in
children who had been sexually abused or had suffered from other
traumatic events. Piersall further testified that he knew of no
other traumatic events in the victim's experience.
After the jury returned the guilty verdicts against Alexander
on both counts regarding his step-grandson, a Sentencing Hearing
was set for August 5, 1993. The District Court ordered a
presentence investigation. On June 24, 1993, Alexander filed a
Motion for Evaluation requesting that an evaluation be conducted to
assess his amenability to outpatient sexual offender treatment.
The District Court ordered such an evaluation to be completed by
Northwest Family Recovery in Kalispell and ordered further that it
be included in the presentence investigation.
Andy Hudak (Hudak), director of Northwest Family Recovery was
conducting the sex offender evaluation of Alexander. Hudak had not
completed the evaluation by August 5, 1993, the date scheduled for
the Sentencing Hearing. Alexander moved to continue the hearing
until the evaluation was completed; this motion was denied by the
District Court. The State presented information at the Sentencing
Hearing concerning information Hudak had provided tothe prosecutor
regarding Alexander's amenability to treatment. In spite of the
fact that the evaluation had not been completed, the District Court
sentenced Alexanderto thirty years imprisonment and designated him
a dangerous offender for parole purposes, with the added
requirement that he must successfully complete the sex offender
program at the Montana State Prison to be considered for parole.
Additional facts will be supplied as necessary throughout this
opinion.
Issue I: Hearsay
Did the District Court err in permitting the jury to hear
improper hearsay testimony?
Alexander contends that the District Court's admission of
hearsay statements made by the victim to Brad Custer, Detective
Maxine Lamb, his mother and to Robert Piersall was error and
resulted in substantial prejudice to him. He contends that the
pretrial Motion in Limine and resulting Order acted to enjoin the
State from "referring to or using, in any manner, hearsay
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statements made by the victims to Brad Custer, Maxine Lamb, Robert
Piersall and Lauren Langmead, unless and until same are ruled
allowable by the court pursuant to Rule 801 (d) (1)(B) ." Alexander
claims that the court then improperly allowed such hearsay
statements during the trial, beginning with statements made by the
State during its opening statements.
Alexander contends that the following statements made by the
prosecutor during her opening statements to the jury constitute
reversible error:
. . . And in Late August of 92, [the victim] began
approaching his parents saying that he felt he had done
something wrong and he would be crying. He would say
that Paul would tickle him on his thighs, on his legs.
And the parents, as any parent would, investigated. And
they went and talked to the school counselor; and the
school counselor called Maxine Lamb of the Sheriff's
Department; and Maxine Lamb of the Sheriff's Department
suggested they go see Brad Custer of the Department of
Family Services.

So Brad Custer interviewed the child, and then
referred the case back to the Flathead County Sheriff's
Department.
It wasn't until the 31st of December, New Years eve
that Maxine finally interviewed [the victim] ... After
speaking with [the victim], Maxine then spoke with the
defendant, and he was interviewed by Maxine Lamb also on
that day, on New Years eve, 1992.
Alexander claims that the statements by the prosecutor regarding
the contact of the victim with Brad Custer and Maxine Lamb
constitute improperly admitted hearsay.
In the District Court's Order concerning presentation of
hearsay, the court stated it would not allow statements made by the
named witnesses unless and until it ruled on the statements. The
statements made by the prosecutor as detailed above do not
constitute hearsay, but rather allude to testimony of certain
witnesses to be called during the trial. Hearsay is 'a statement,
l
other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter
asserted.I1 Rule 801(c), M.R.Evid.
However, citing State v. West (1980), 190 Mont. 38, 42, 617
P.2d 1298, 1300, Alexander contends that certain statements made
here are grounds for reversal because the prosecutor's reference to
inadmissible evidence in her opening statement contributed to his
conviction. According to the ruling in West, hearsay evidence
alluded to in opening statements must be so highly prejudicial that
it supports a reasonable probability that the statements led to the
defendant's conviction. West, 617 P.2d at 1300.
The prosecutor's statements as quoted above do not contain any
statements made by Brad Custer or Maxine Lamb. They merely detail
the course of events leading up to Detective Lamb's interview with
the defendant. Her statements chronicle the development and
investigation of the case to the point of charging Alexander with
the offenses against his step-grandson. We conclude that the
prosecutor's statements do not in any sense constitute testimony,
nor did they prejudice Alexander by alluding to improper witness
hearsay testimony. Thus, Alexander's objection to the statements
on these bases is misplaced.
Alexander also claims certain testimony by witnesses involved
inadmissible hearsay statements. He first contends that statements
made by Brad Custer, which we quote in their entirety here, were
inadmissible hearsay:
Q. [by Ms. Wilson] And through your investigation,
were you able to establish where the alleged abused [sic]
occurred?
A. [by Brad Custer] Yes, I was.
Q. And where was that, Mr. Custer?
A. [The victim] told me that the incident he
described occurred at his step-grandfather's house in
Kalispell. He listed that as 83 Dern Road in Kalispell.
Q. And would that be in Flathead County?
A. Yes, it would.
The District Court ruled that this testimony was in the nature of
foundation and background.
The State contends that this testimony by Mr. Custer was
clearly elicited to establish venue in Flathead County and is not
hearsay. Alexander claims that there was never any question of or
challenge to venue. It is clear from the questions and answers in
the transcript that the statements only establish the place where
the incidents occurred and do not constitute testimony that
Alexander was the person who committed the acts. However, our
question is whether or not that can be classed as inadmissible
hearsay.
Rule 801(c), M.R.Evid., provides that hearsay is a statement
made by someone other than the declarant offered in evidence to
prove the truth of the matter asserted. Clearly, Mr. Custerls
statements as set forth above were offered into evidence to prove
that the incident the victim described had occurred in Flathead
County and as such constituted inadmissible hearsay as they were
being offered by someone other than the declarant.
Having determined that error was committed by allowing the
prosecutor to present hearsay testimony, we next address whether
that error was harmless. Montana follows the United States Supreme
Court's test for determining what constitutes harmless error.
State v. Wallace (1986), 223 Mont. 454, 458, 727 P.2d 520, 523.
That definition provides:
[Aln otherwise valid conviction should not be set aside
if the reviewing court may confidently say, on the whole
record, that the constitutional error was harmless beyond
a reasonable doubt.
Delaware v. Van Arsdall (1986), 475 U.S. 673, 681, 106 S.Ct. 1431,
1436, 89 L.Ed.2d 674, 684. We have also stated:
This Court must be able to state, in cases of error which
we regard as harmless, that beyond a reasonable doubt the
error did not affect the outcome of the trial.
State v. Daniels (1984), 210 Mont. 1, 12, 682 P.2d 173, 179,
(citing Chapman v. California (1967), 386 U.S. 18, 26, 87 s.c~.
824, 829, 17 L.Ed.2d 705, 711 (reh'q denied 386 U.S. 987, 87 S.Ct.
1283, 18 L.Ed. 2d 241)) .
Although Mr. Custer's testimony as to the location where the
offenses occurred was presented prior to the victim's testimony, it
did not include any information that was not verified by the victim
later during the course of the trial. We conclude that this did
not prejudice Alexander and is harmless error according to Montana
law as established by our prior cases.
Alexander's next hearsay argument concerns certain statements
made by the victim's mother at trial when she attempted to state
what her son had told her about the sexual abuse and what a friend
who was a counselor had said to her about sexual abuse. The
transcript indicates that the victim's mother did indeed attempt to
make inappropriate statements; however, counsel for defendant
objected immediately and the District Court sustained the
objections. Consequently, there was no hearsay introduced through
the victim's mother's testimony.
Moreover, the mother's attempt to introduce hearsay evidence
did not result from the prosecutor's attempt to introduce such
comments; rather, it was the witness who tried to do so. The
District Court ruled that although some of the other testimony from
the victim's mother may have involved some hearsay in her
description of events leading up to filing charges against
Alexander and obtaining counseling for her son for sexual abuse,
that testimony was also foundational in nature and not substantive
enough to be of such prejudice as to warrant granting Alexander's
motion for a mistrial.
Alexander's final argument concerning hearsay relates to the
testimony of the victim's counselor, Piersall. Piersall did not
testify about anything the victim said to him. He testified about
his diagnosis that the victim was suffering from post-traumatic
stress and that such stress is consistent with certain experiences
in a child's life, including sexual abuse. He testified as
follows:
Q. [By Ms. Wilson] Have you diagnosed [the
victim]?
A. [By Piersall] Yes, I have.
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 Q. And can you tell me what that diagnosis is?
A. Post-traumatic stress disorder.
Q. And what symptoms did the child display that
brought you to that decision?
A. Well, [the victim's] tendency was to minimize
his symptoms of distress as a coping device, because the
more he would become aware of his distress, then the more
distressed he would actually become. So his tendency was
to down-play them. Part of my making that diagnosis is
based on information reported to me by the mother ...
M R . VERNAY: Your Honor, we are in hearsay.
THE COURT: Well, not yet.
THE WITNESS: She reported--
MR. VERNAY: We are in hearsay from [the mother].
THE COURT: You are objecting?
MR. VERNAY: Yes, I am.
THE COURT: Sustained.
BY MS. WILSON:
Q. Can you tell me what symptoms that you directly
observed of [the victim] that would be consistent with
your diagnosis?
A. Well, it was approximately the third or fourth
meeting that I had with [the victim] that I questioned
him directly.
MR. VERNAY: Objection, Your Honor, hearsay.
THE COURT : Overruled.
THE WITNESS: Where I questioned [the victim]
directly about his allegations of sexual abuse by Paul
Alexandertoward him. And as [the victim] was describing
verbally to me things that he says took place--
THE COURT: Wait a minute. Stop. This is hearsay.
I am going to have to sustain the objection. You can't
testify as to [the victim]-- what he said to you or
things that he has done that he-- manners other than
 speech or in addition to speech, where he communicated to
you. It is hearsay, and you are not allowed to--
THE WITNESS: Okay. I can say that he was very
fearful as he relayed that information. That is
something I observed directly.
BY MS. WILSON:
Q. Were there any other physical symptoms?
A. Well I asked him to do some drawings.
Q. I guess I don't really want to get into the
nature of those.
A. All right.
Q. Doctor, is the diagnosis of post traumatic
stress disorder consistent with children who have
suffered sexual abuse?
A. Yes.
Q. Is it also consistent with other traumatic
events that occur?
A. Yes.
Q. Can you give the jurors an example of some other
things that might cause post traumatic stress?
A. Well, overwhelming experiences, such as being
involved in a car accident and receiving significant
injuries, having your house burn down, being physically
abused. There are numerous traumatic events that could
occur that could cause this type of symptom cluster.
Q. Have any of those type of occurrences been
reported to you as occurring to [the victim]?
A. No, they haven't been reported to me. I am not
aware of any? [sic]
Alexander contends that Piersall's testimony violates the
holding of this Court in State v. Harris (1991), 247 Mont. 405, 808
P.2d 453. Harris dealt with statements about sexual abuse made to
a counselor by a minor child who is the alleged victim of sexual
abuse for purposes of diagnosis under the medical treatment
exception of Rule 803(4), M.R.Evid., and under the residual
exception to the hearsay rule, Rule 804(b)(5), M.R.Evid. The
Harris case also discussed a counselor's testimony relating to the
credibility of the child victim. Harris, 808 P.2d at 455-59.
Neither issue is appropriate here and Alexander has cited no other
authority to support his argument. Here, there were no statements
made by the victim which the State introduced through the counselor
and the counselor did not testify as to the credibility of the
victim.
Expert testimony is permissible to explain the existence of
medical or psychological conditions associated with abuse. In
State v. Scott (1993), 257 Mont. 454, 465, 850 P.2d 286, 292-93, we
said:
Expert testimony relating to the contradictory behavior
...of a child victim of sexual abuse, will be allowed
to enlighten the jury on a subject with which most people
have no common experience and to assist the jurors in
assessing the credibility of the victim.
We conclude the testimony given by Piersall in this case is the
sort of testimony referred to in Scott which pertains to explaining
the behavior of the victim and which is intended to assist the
jurors in assessing the credibility of the victim. Scott also
discussed the testimony of a counselor relating to the credibility
of the child victim; this sort of testimony was not used in this
case as Piersall did not testify as to the victim's credibility.
His testimony was informative to the jurors on the nature of post
traumatic stress disorder and did not impinge on the jury's
determination of credibility of the victim.
We hold the District Court erred by admitting the testimony of
Brad Custer to establish where the offenses occurred and that such
error was harmless. We further hold that none of the other
testimony challenged by Alexander constituted improper hearsay
testimony.

Did the District Court err in refusing to continue the
sentencing to allow the inclusion of a sex offender evaluation in
the Pre-Sentence Investigation?
On June 28, 1992, the District Court ordered an evaluation by
a psychologist "for purposes of ascertaining [Alexander's]
amenability to treatment in an outpatient program." The evaluation
was to be provided to the District Court as part of the presentence
investigation. The court ordered that the sex offender evaluation
be conducted by Northwest Family Recovery, licensed clinical
psychologists. The court further ordered that copies of the
evaluation be included in the presentence investigation pursuant to
§ 46-18-111. MCA. When that evaluation was not completed by the
time scheduled for the sentencing hearing, the District Court
refused to continue the hearing and sentencedthe defendant without
the benefit of the sex offender evaluation and recommendation.
During the sentencing hearing conducted on August 5, 1993,
counsel for Alexander advised the court that Andy Hudak of
Northwest Family Recovery was working on the evaluation but that it
would not be completed for at least another month. He requested
that the sentencing hearing be continued until the evaluation had
14
been completed and considered by the court. The prosecutor advised
the court that she too had spoken with Hudak and that Hudak had
told her that persons such as Alexander who maintain their
innocence about the sexual behavior at issue are generally not
amenable to treatment in his outpatient program. The District
Court acknowledged its own familiarity with such programs, noted
the continued denial of the defendant and denied the motion to
continue the sentencing hearing.
Alexander contends that the District Court erred by refusing
to continue the sentencing hearing and by sentencing him without
considering Hudak's report. He argues that this violated the
presentence investigation requirements set forth in § 46-18-111,
MCA . Section 46-18-111, MCA (1991), applies to Alexander's
sentencing and provides in pertinent part:
46-18-111.
required. (1) Upon
Presentence investigation
...
--when
a verdict or finding of guilty
to one or more felony offenses, the district court shall
direct the probation officer to make a presentence
investigation and report. ... The investigation must
include an evaluation of the defendant and a
recommendation as to treatment by a person qualified
corrections and human services.
supplied.)
, .
under guidelines established by the department of
. (Emphasis

Section 46-18-111(1), MCA, was amended by the 1993 Legislature and
now specifically addresses perpetrators of sexual crimes involving
victims under the age of sixteen years. The legislature amended
subsection (1) to include a mandate for an evaluation and a
recommendation as to treatment in the least restrictive environment
in light of community safety and offender needs. Although
Alexander argues that the amended statute is more applicable to
this case and should apply, that statute took effect on October 1,
1993, after Alexander's sentencing. However, the statute as
previously written also requires an evaluation and recommendation
as to treatment in this case.
Nonetheless, the State argues that because the District Court
considered placement in a less restrictive environment than the
Montana State Prison and recognized Alexander's rights to continue
to claim his innocence, Alexander was not prejudiced by sentencing
without the evaluation. The express wording of the 1991 statute,
however, requires that the District Court "shall direct the
probation officer to make a presentence evaluation and reportw and
that the "investigation include an evaluation of the defendant
and a recommendation as to treatment" by a qualified person.
Sentencing decisions made by a district court are generally
discretionary as trial judges are granted broad discretion to
determine the appropriate punishment. a,. . State
es, v. Hembd
(1992), 254 Mont. 407, 411, 838 P.2d 412, 415. However, the
appropriate standard of review here as to this issue is whether the
District Court's interpretation of the law is correct. State v.
Strong (1993), 258 Mont. 48, 49, 851 P.2d 415, 416.
In this case, the District Court sentenced the defendant
before the presentence investigation was completed. The trial
court's discretion to determine the appropriate punishment in such
a case cannot be exercised until and unless the statute concerning
presentence investigations has been correctly applied. We conclude
that the District Court did not have the discretion to sentence the
defendant in this case without considering a complete presentence
investigation containingthe evaluation and recommendation required
by § 46-18-111(1), MCA.
After Alexander's sentencing, Hudak completed Alexander's
~menity Evaluation (for purposes of amenability for outpatient
therapy) and the evaluation is now part of the record and can be
included in the presentence investigation. Thus, on remand, the
District Court will have a complete presentence investigation to
consider in light of our decision in this case.
We hold the District Court erred in refusing to continue the
sentencing in order to allow the inclusion of a sex offender
evaluation in the Pre-Sentence Investigation.
Affirmed in part, reversed in part and remanded for
resentencins consistent with this opinion. n

We Concur:

chief-~ustice l
7