No. 94-034
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
STATE OF MONTANA,
Plaintiff and Respondent,
v.
EDWIN WARREN RILEY, a/k/a
"SMOKEY" RILEY,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial
District, In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John E. Smith, Attorney at Law,
Missoula, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Micheal S. Wellenstein, Assistant Attorney
General, Helena, Montana
George H. Corn, Ravalli County Attorney,
Hamilton, Montana
Submitted on Briefs: January 19, 1995
Decided: April 4, 1995
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Defendant Edwin W. Riley was charged in the District Court for
the Twenty-First Judicial District in Ravalli County with incest,
in violation of 5 45-5-507, MCA. On June 28, 1993, after a trial
by jury, Riley was found guilty of the crime charged. The District
Court sentenced him to ten years in an appropriate state
institution or community based correctional institution or program.
Riley appeals his conviction. We affirm the judgment of the
District Court.
We restate the issues on appeal as follows:
1. Did the District Court err when it allowed Bob Custer and
Pat Richie to comment regarding their observations of the victim
during their interview?
2. Was the District Court's admission of Custer's testimony
regarding out-of-court statements by the victim prejudicial to the
defendant?
3. Was Riley's conviction supported by sufficient evidence?
FACTUAL BACKGROUND
On June 9, 1993, Riley was charged by amended information with
incest, in violation of § 45-5-507, MCA. The issues raised by this
charge and Riley's denial were the subject of a trial by jury on
June 28, 1993. At trial, Bob Custer, a former social worker for
the Montana Department of Family Services, Detective Pat Richie of
the Ravalli County Sheriff's Department, the victim (Riley's
stepdaughter B.F.), and the victim's mother, Shirley Riley, all
testified.
Custer testified that his office received a referral involving
B.F. in February 1993, and that he interviewed her with Detective
Richie present. He stated that he found B.F. to be “more mature
than the average 16-year-old. Certainly more straightforward,
almost blunt." At trial, Riley did not object to this testimony.
When Custer was asked who B.F. said assaulted her, Riley
objected that the question called for inadmissible hearsay
evidence. However, the court ruled that while Custer's reports
were inadmissible, his testimony was not. Custer then stated that
B.F. reported that her stepfather, Riley, touched her in
inappropriate ways while at the family's mobile home outside of
Hamilton.
Detective Richie testified that during her interview with B.F.
she was very straightforward in her mannerisms and speech, but that
she became angry and frustrated at times during the conversation.
She also testified that during a subsequent interview, B.F.
appeared to be a very straightforward young lady, but did not
appear as outwardly angered. Riley did not object to these
descriptions of B.F.'s demeanor, nor any other testimony from
Richie.
B.F. testified that on Friday, February 12, while she and
Riley were watching movies and her mother was asleep in the back
bedroom, Riley "just started picking at me to annoy me and started
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wrestling around with me, and then he grabbed my breast on the
outside of the shirt, sometimes under, and I would tell him to
leave me alone . . . .'I B.F. testified that incidents like this
happened more than once.
B.F. testified that on Saturday night of the same weekend she
was in the kitchen washing dishes when Riley walked up behind her
and cupped her breasts and asked her what she was doing. She
stated that she told him she was washing the dishes and shrugged
him away.
She testified that 'I [hle would sometimes tell me to pull down
my pants, and I would--and he would grab ahold of my pubic hairs
and tell me you're getting a big bush on you, or he would look at
my breasts and tell me I'm growing." B.F. testified that she tried
to discourage this type of action.
B.F. testified that Riley sometimes wrestled with her and that
she would get the feeling that he was aroused. B.F. testified that
l'[h]e would press his penis area up against my body and say, see
what you can do to an old man whenever he would get hard." B.F.
also stated that Riley would sometimes kiss her and that he would
sometimes pull her blouse down.
B.F. told a school classmate, and later, a school counselor,
about these incidents involving her stepfather, in February 1993.
B.F. said she did not report any of this earlier because she was
afraid that her mother would reject her and that no one would
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believe her. B.F. also testified that she was afraid she would be
taken out of her home.
B.F. stated that she talked with Custer and Richie about these
allegations, and that after she talked to Custer, she was placed in
a foster home.
B.F. admitted on cross-examination that she did not observe
Riley achieve sexual climax during these incidents with her.
However, B.F. again stated on redirect examination that, based on
Riley's erection, she felt he had been sexually aroused.
ISSUE 1
Did the District Court err when it allowed Bob Custer and Pat
Richie to comment regarding their observations of the victim during
their interview?
Riley contends that the District Court erred when it allowed
testimony of the investigating social worker, Bob Custer, and the
investigating officer, Pat Richie, which had the effect of
bolstering B.F.'s credibility. The State points out, however, that
no objection to either witness's testimony was made on that basis
at the time of trial. A review of the record demonstrates that the
State is correct. We have held that the failure to object
constitutes a waiver of that objection pursuant to § 46-20-104,
MCA, unless the circumstances come within an exception found at
§ 46-20-701, MCA. State v. Arlington (1994), 265 Mont. 127, 158, 875
P.2d 307, 326.
Section 46-20-104(2), MCA, provides that:
Upon appeal from a judgment, the court may review the
verdict or decision and any alleged error objected to
which involves the merits or necessarily affects the
judgment. Failure to make a timely objection durinq
trial constitutes a waiver of the obiection except as
provided in 46-20-701(2).
(Emphasis added.)
There is no demonstration by Riley that any of the exceptions
found at 5 46-20-701(2), MCA, apply. Therefore, we hold that since
Riley failed to raise these objections at trial, he is barred from
raising them on appeal.
ISSUE 2
Was the District Court's admission of Custer's testimony
regarding out-of-court statements by the victim prejudicial to the
defendant?
The standard of review for evidentiary rulings is whether the
district court abused its discretion. state v. ~ussama (1993) , 261
Mont. 338, 341, 863 P.2d 378, 380 (citing state Y. Crist (1992), 253
Mont. 442, 445, 833 P.2d 1052, 1054).
Riley claims that the testimony of Custer, which repeated
B.F.'s allegations, was hearsay and should not have been admitted
as a hearsay exception pursuant to Rule 803(8), M.R.Evid. Riley
objected during trial to references to the recorded statements of
B. F. The District Court held that Custer's reports themselves, not
his testimony, were excluded under Rule 803(E), M.R.Evid., and
allowed Custer to repeat what he was told by B.F. Riley contends
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that based on Rule 803(8) (i), Custer's testimony which summarized
his report was just as inadmissible as his report. We agree.
The State concedes that Custer's testimony regarding B.F.'s
out-of-court statements was hearsay and should have been excluded
by the District Court. However, the State argues that the
admission of that testimony does not automatically entitle Riley to
a reversal of his conviction. With this contention, we also agree.
We have held that "[aln error by the trial court will be
deemed harmless 'unless the record shows that the error was
prejudicial.'" Stutev.Bower (19921, 254 Mont. 1, 5-6, 833 P.2d 1106,
1109 (citing 5 46-20-701(l), MCA).
When we examine the prejudicial effect of an error, we will
examine the totality of the circumstances in which the error
occurred. Bower, 833 P.2d at 1109 (citing Brodniakv.State (1989), 239
Mont. 110, 115, 779 P.2d 71, 74).
The record discloses that Custer testified prior to B.F. and
that B.F. was, in fact, cross-examined regarding her interview by
Custer and Richie. We also note that Custer did not repeat any
allegation to which B.F. did not herself testify in much greater
detail, and that B.F. was subject to full cross-examination
regarding all of her testimony.
In this case, after a review of the record, we cannot conclude
that Custer's testimony was prejudicial to the defendant. It was
brief and added nothing to the direct testimony of the victim. We
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hold that the District Court's error when it admitted Custer's
hearsay testimony was harmless.
ISSUE 3
Was Riley's conviction supported by sufficient evidence?
The standard of review for sufficiency of the evidence is
"'whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."'
Arlington, 875 P.2d at 318 (quoting Statev. @’ (1987), 229 Mont. 337,
339, 746 P.2d 120, 122).
Riley was charged with the crime of felony incest. Section
45-5-507 Cl), MCA, provides that:
A person commits the offense of incest if he knowingly
marries, cohabits with, has sexual intercourse with, z
has sexual contact as defined in 45-Z-101 with an
ancestor, a descendent, a brother or sister of the whole
or halfblood, or any stepson or stepdauqhter. The
relationships referred to herein include blood
relationships without regard to legitimacy, relationship
of parent and child by adoption, and relationships
involving a stepson or stepdaughter.
(Emphasis added.)
Section 45-Z-101(60), MCA, defines sexual contact as "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." The District Court instructed the jury that
sexual or intimate parts include the "genitalia, breasts, buttocks,
hips, belly or chest of a girl."
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In this case, B.F. testified that Riley touched intimate parts
of her body, including her breasts and her pubic area. B.F. also
testified that the defendant appeared to be aroused during these
incidents.
Riley argues that there was not substantial evidence in the
record to infer that he touched B.F. with intent to arouse or
gratify his sexual desires. However, the record indicated
otherwise. B.F. testified that "[hle would press his penis area up
against my body and say, see what you can do to an old man whenever
he would get hard." Testimony of a more explicit or graphic nature
was unnecessary.
We have held that "[ilntent is a fact question for the jury,
and it is well-settled that the jury may infer intent from
defendant's acts." Stutev. Kestner (1986), 220 Mont. 41, 46, 713 P.Zd
537, 540 (citing Statev.Ju&on (1979), 180 Mont. 195, 205, 589 P.2d
1009, 1015). Based upon the previous testimony, the jury could
reasonably infer that Riley's acts were done for the purpose of
sexual gratification.
We hold that there was sufficient evidence to support Riley's
conviction for incest.
The judgment of the District Court is affirmed.
J tice
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We c o n c u r : A