State v. Weeks

No. 94-023
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995

STATE OF MONTANA,
Plaintiff and Respondent,
-v-
MICHAEL WEEKS,
Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis & Clark,
The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Steven J. Shapiro, Clancy, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Cregg
Coughlin, Assistant Attorney General, Helena,
Montana; John Flynn, Broadwater County Attorney,
Townsend, Montana

Submitted on Briefs: November 10, 1994
Decided: February 16, 1995
Filed:
Justice James C. Nelson delivered the Opinion of the Court.

Defendant/Appellant, Michael Weeks, was charged with sexual
intercourse without consent, a felony in violation of 5 45-5-503,

MCA (19911, alleged to have occurred on or about October 17, 1991.

After a jury trial held in the First Judicial District, Lewis and

Clark County, Weeks was convicted of the charge, and the District

Court entered its Judgment and Order on September 22, 1993,

sentencing Weeks to 35 years in prison with 15 years suspended.

Weeks appeals his conviction. We affirm.

Weeks raises five issues on appeal.

1. Whether he was denied his right to a speedy trial?

2. Whether the District Court abused its discretion in
finding a sufficient chain of custody for the blood
specimens?

3. Whether the District Court abused its discretion in
admitting evidence of serological and DNA testing?

4. Whether the District Court properly denied Weeks'
motion for a judgment of acquittal?

5. Whether the District Court abused its discretion
when it excluded evidence of prior sexual abuse of
the victim?

FACTUAL BACKGROUND

In the fall of 1991, the victim, C.R., was in the seventh

grade and living in Townsend, Montana, with her mother, two

brothers and her stepfather, Weeks. In December of 1991, C.R. went

to a doctor in Townsend, who determined that C.R. was pregnant.

C.R. testified that from the time she was eight years old until she

left the home, Weeks would have sex with her two to three times a

week. C.R. stated that the incidents would usually take place in

2
the morning, after her mother had left for work, and before her
brothers had awakened.

In January of 1992, Cheryl Rolfe, a social worker for the
Montana Department of Social Services working in Broadwater County

received an anonymous referral stating that C.R. was pregnant. As

a result of this referral, Rolfe interviewed C.R. at school, and

C.R. told Rolfe that Weeks had impregnated her. Rolfe immediately
placed C.R. in a foster home, where she stayed until January 31,

1992, at which time Rolfe placed C.R. at the Florence Crittenton

Home. Rolfe stated that she specifically told C.R.'s mother not to

make any contact with C.R. including telephone calls, unless it was

first approved by Rolfe. C.R. stated that while she was staying at

the foster home, her mother and Weeks called her and asked her to

change her testimony and claim someone else was the father of the

child.

On July 20, 1992, C.R. gave birth to a baby boy. C.R.

testified that Weeks was the only person she had ever had sexual

intercourse with. Weeks denies that he is the father of the child,

and presented evidence that C.R.'s brother could have been the

potential father.
The Montana State Crime Lab received blood samples from C.R.,

the baby, Weeks, and C.R.'s brother. Julie Long, a forensic

scientist working at the State Crime Lab testified that she ran

serological tests on the blood samples and determined that Weeks

was included as a possible father of the baby. According to Long,

C.R.'s brother was positively excluded as the baby's father.

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 The State sent blood samples from C.R., the baby, and weeks to
Genelex Corporation, a paternity testing laboratory in Seattle, for

DNA analysis. The president of Genelex, Howard Coleman, testified

that the DNA analysis evidence demonstrated that Weeks could not be

excluded as the baby's father. In addition, Genelex conducted a
statistical analysis of the DNA testing results and determined that

Weeks was 154,000 times more likely to be the baby's father than a

random man.

Weeks was arrested on October 30, 1992, and charged with

sexual intercourse without consent. A jury trial was held July 7.6

through July 28, 1993, and Weeks was found guilty of the charge.
Additional facts will be presented as is necessary for the

discussion of the issues.
1. SPEEDY TRIAL

Although not reflected in the District Court record, Weeks

maintains, and the State does not dispute, that Weeks was charged

by complaint in Broadwater County Justice Court in October of 1992,

and arrested on October 30, 1992. An information charging Weeks

was filed on November 17, 1992, and during Week's arraignment,

which was held on December 4, 1992, the court set the original

trial date for the week of April 12, 1993. On February 9, 1993,

Weeks requested documentation of the DNA testing Genelex conducted.

The State produced the documentation on March 18, 1993. On March

31, 1993, Weeks moved for a continuance of the trial date scheduled

for April 12, 1993 to May 17, 1993, alleging that his expert needed

additional time to review the DNA testing documentation. Weeks

4
specifically waived his right to a speedy trial in his motion,

The District Court granted Weeks' motion for a continuance,
and a second trial date was scheduled for May 17, 1993. On May 3,
1993, Weeks moved to exclude scientific evidence, which included

the evidence of the DNA testing, statistical probabilities based on

the DNA and serological tests, and references to the terms "match"

and "fingerprints." The State objected to Weeks'.motion to exclude

on May 5, 1993, alleging that l'[tlhe very nature of Defendant's
motion begs for an evidentiary hearing to address the issues raised

by the Defense." The State requested that the court vacate the May
17 trial date and hold an evidentiary hearing on Weeks' motion.

After giving preliminary consideration to Weeks' motion on May 7,

the court decided a hearing was necessary to determine the

admissibility of the scientific evidence, and therefore rescheduled

trial for July 26, 1993.

On June 21, 1993, Weeks filed a motion to dismiss on the

grounds that he was denied his right to a speedy trial. Weeks

alleged the State was responsible for the delay because it took six

weeks to respond to his discovery request and because it moved to

vacate the trial and hold a hearing on his motion to exclude the

scientific evidence. After a hearing held on July 2, 1993, the

court denied his motion.

The Sixth Amendment to the United States Constitution, and

Article II, Section 24 of the Montana Constitution, guarantee a

criminal defendant the right to a speedy trial. State v. Stewart

(1994), 881 P.2d 629, 632, 51 St.Rep. 910, 911. This Court applies

5
the four part test set forth in Barker v. Wingo (1972), 407 U.S.
514, 92 S.Ct. 2182, 33 L.Ed.2d 101, to determine whether a criminal

defendant has been denied his right to a speedy trial. State ex
rel. Briceno v. District Court (1977), 173 Mont. 516, 568 p.2d 162.

The four factors which must be evaluated are the "[llength of

delay, the reason for the delay, the defendant's assertion of his

right, and prejudice to the defendant." Barker, 407 U.S. at 530,
92 S.Ct. at 2192, 33 L.Ed.2d at 117; State v. Thompson (1993), 263

Mont. 17, 31-32, 865 P.2d 1125, 1134. No particular factor is

determinative, rather, all four factors must be weighed in light of

the surrounding facts and circumstances. Stewart, 881 P.2d at 632.

The first factor, the length of the delay is the threshold

factor, as the other three factors need not be considered unless
the length of the delay is presumptively prejudicial. Thompson,

865 P.2d at 1134. In this case, the State concedes that the 269

day pretrial delay is sufficient to warrant additional speedy trial

analysis. See, Thompson, 865 P.2d at 1135, "[al delay of over 200

days will usually trigger further analysis." Therefore, we

consider the remaining three factors.

The second factor, the reason for the delay, requires an

allocation of portions of the overall delay to the party

responsible for causing any given period of delay. Thompson, 865

P.2d at 1135.
The delay in this case may be divided into three separate

segments. The first period consists of 164 days and represents the

time between Weeks' arrest on October 30, 1992, and the original

6
trial date of April 12, 1993. Because the District Court set the
original trial date, the delay is considered institutional, and is

therefore chargeable to the State. Thomoson, 865 P.2d at 1135.
"However, institutional delay weighs less heavily against the State

than does purposeful delay." Thompson, 865 P.2d at 1135. Weeks
makes no argument, and the record does not indicate, that the State

purposefully caused the delay between his arrest and the first

scheduled trial date, which is by far the longest period of delay.

Therefore, we weigh this initial 164 days less heavily against the

State.

The second period of delay consists of 36 days, and represents

the time between the original trial date of April 12, 1993, and the

trial date set for May 17, 1993. The defendant requested this

delay in his motion for continuance, wherein he specifically waived

his right to a speedy trial. On appeal, Weeks contends that the

State should be responsible for this delay, as it did not timely

respond to his request for discovery. Nevertheless, Weeks
specifically waived his right to a speedy trial until May 17, 1993.

Therefore, the second period of delay is attributable to Weeks.

State v. Tilly (19871, 227 Mont. 138, 143, 737 P.Zd 484, 487; see

also, State v. Nelson (1991), 251 Mont. 139, 822 P.2d 1086.

The third period of delay consists of 69 days, and represents

the delay between the court's vacating the May 17 trial date and

rescheduling the trial for July 26, 1993. Weeks maintains that

this delay should be attributable to the State, as it moved to

vacate the May 17 trial date. While the State agrees that it

7
requested that the trial date be vacated, it argues that the delay
should be attributed to Weeks, as the delay was caused by Weeks'

motion to exclude the DNA evidence. The State alleges that in
light of Weeks' motion to exclude, an evidentiary hearing was
necessary at which expert witnesses could testify. We agree, and
conclude the delay should be attributable to Weeks in this instance

for the following reasons.

First, Weeks did not move to exclude the evidence until two

weeks before trial, although he admits that the DNA testing was

completed by October 1992. Second, the evidence Weeks sought to

exclude is highly complicated and technical scientific evidence.

At the time Weeks made his motion, this Court had never ruled on

the admissibility of DNA evidence in a criminal trial. Therefore,

this evidence was clearly of the type which required a pretrial

admissibility hearing. Given the complexity of the subject matter

and the timing of Weeks' motion to exclude, the State's motion for

an evidentiary hearing was proper, and the District Court was

correct in granting the State's motion. State v. Moore (1994), 885

P.2d 457, 471, 51 St.Rep. 1151, 1160; U.S. v. Martinez (8th Cir.

1993), 3 F.3d 1191, 1197-98, cert denied, - U.S.-, 114 s.ct.

734, 126 L.Ed.2d 697 (1994). Accordingly, we conclude that Weeks

should be charged with this 69 day delay.
Weeks has met the third Barker factor, assertion of his right,

as he moved to dismiss the action on speedy trial grounds, on June

21, 1993, before this case was brought to trial. Stewart, 881 P.Zd

at 633.

8
 The fourth Barker factor is prejudice to the defendant.
Prejudice is assessed in light of the interests of the defendant
which may be harmed by a delay in bringing his case to trial.

These interests are: (1) pretrial incarceration, (2) anxiety and

concern, and (3) impairment of defense. Stewart, 881 P.2d at 633.
Applying these criteria to the facts in this case we conclude that

Weeks was not prejudiced by the delay.

Weeks, incarcerated from the date of his arrest to the date of

trial, argues that his incarceration was oppressive and impaired

his defense. However, given the fact that Weeks had been

extradited from Oregon and had few ties to Broadwater County,

pretrial incarceration was necessary to ensure his presence at

trial.

Regarding the second interest, Weeks maintains that 'I [tlhe

anxiety caused by loss of liberty is great." While this may be

true, Weeks offers no proof conclusively showing that he actually

suffered anxiety and concern. This Court has recognized that

anxiety is an inevitable part of being charged with a crime, and

that the existence of anxiety and emotional distress are

notoriously difficult to prove. Stewart, 881 P.2d at 634.

However, we have also held that the State's burden to show lack of

anxiety lessens considerably when marginal evidence of anxiety is

presented. State v. Eklund (1994), 264 Mont. 420, 425, 872 P.2d

323, 326. While Weeks mentions that he was suicidal as a result of

his pretrial incarceration, he offered no support for this cursory

statement. Weeks' evidence demonstrating anxiety and concern is

9
marginal at best.

The third and most important interest we must consider is
whether the delay impaired or prejudiced the defense. Again Weeks
offers no explanation as to how his defense suffered as a result of

the delay other than stating that 0 [tlhe defense was impaired by

the passage of time." A mere self-serving assertion that the

defendant suffered prejudice is not sufficient to demonstrate that

the delay impaired or prejudiced his defense. State v. Bretz

(1979), 185 Mont. 253, 268, 605 P.2d 974, 983; see also, State v.

Kills on Top (19901, 243 Mont. 56, 79, 793 P.2d 1273, 1288-89.

In summary, of the total 269 days of pretrial delay, 164 days

are institutional, charged to but weighed less heavily against the

State, and 105 days are charged to Weeks. While Weeks may have

suffered some anxiety as a result of his pretrial incarceration,

that incarceration was necessary and his defense was not prejudiced

by the delay. Therefore, applying the four part balancing test of

Barker, we hold that Weeks was not denied his right to a speedy

trial.

2. CHAIN OF CUSTODY

Weeks contends that the State did not establish a proper
foundation for the chain of custody for the blood samples taken

from C.R., the baby, and Weeks. Accordingly, Weeks maintains that

the District Court erred in admitting any evidence regarding the

blood samples and the accompanying test results. Weeks claims that

the blood samples of C.R. and the baby should not have been

admitted because those samples were mistakenly sent to Baltimore Rh

10
Typing Laboratory, a genetic testing center in Baltimore, Maryland,
when they were supposed to have been sent to Genelex Corporation in

Seattle, Washington. When the mistake was discovered, the samples
were forwarded to Genelex. Weeks maintains that the chain of

custody for these two samples was not established because while at

the Baltimore laboratory, ' ttlhe samples could have been opened,

examined, tested, contaminated and resealed before anyone realized
that they did not belong there."

Weeks also argues that the State did not establish a proper

chain of custody for his blood sample because Genelex did not
follow the procedure set forth in its laboratory manual in

identifying the sample. In addition, the State Crime Lab received

a sample of Weeks' blood from Genelex for the purpose of conducting

standard serological tests on the sample. Julie Long, a forensic

serologist at the State Crime Lab, testified that the "blood vial"

was broken when she received it. Ms. Long testified that the

broken blood vial was inside of another plastic tube which was

sealed, and that any glass residue from the breakage would not have

affected the outcome of her testing, nor would any bacterial

contamination have affected the outcome of her testing. However,

Weeks maintains that it is not clear whether Genelex tested from

that broken sample which could have affected the outcome of its

testing.

In deciding whether to admit evidence concerning the blood

tests results, the District Court had to determine whether a proper

foundation had been laid. Specifically, the court had to determine
if the blood samples used for the DNA and serological testing were

the same blood taken from Weeks, C.R., and the baby. Therefore,
the State had to establish a complete and secure chain of custody

from the time the blood was drawn until the time of testing. The
District Court found the State properly established this chain of

custody. We agree.

The determination of the adequacy of the foundation for the

admission of evidence is within the discretion of the trial court,

and will not be overturned absent a clear abuse of discretion.

State v. Wells (19831, 202 Mont. 337, 356, 658 P.2d 381, 391; State
v. Christenson (1991), 250 Mont. 351, 359, 820 P.2d 1303, 1308.

When identifying evidence by a chain of custody, the State has the

burden to make a prima facie showing of a continuous chain of

possession and that there was no substantial change in the evidence

while it was in its possession. State v. Thomas (1975), 166 Mont.

265, 268-69, 532 P.2d 405, 406-07; -r
Wells 658 P.2d at 391. The

burden then shifts to the defense to show that the evidence has

been tampered with while in the State's custody. State v.

Armstrong (1980), 189 Mont. 407, 432, 616 P.2d 341, 355; Wells, 658

P.2d at 391.
While other cases have stated that the State must make a prima

facie showing that the evidence was in the "State's continuous

possession", see e.g., State v. Evans (1991), 247 Mont. 218, 228,
806 P.2d 512, 518, this language is not completely accurate. The

State does not need to show that it had possession at all times;

rather it must establish a continuous chain of custody. For

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example, as here, when the State ships a piece of evidence to a
laboratory for testing, the evidence necessarily leaves the
"State's possession." At times the post office or parcel carrier
has possession of the evidence; at times the evidence is in the

possession of clerks; and at other times laboratory technicians
have possession. The chain of custody is not broken however, so

long as the State can demonstrate to the court's satisfaction, that

from the time the evidence was gathered to the time it was tested,

(if testing was performed), or to the time it was offered, that

there was no substantial change that would affect the character of

the evidence, the accuracy of the test results, or its probative

value and authenticity.

Weeks first argues that the State did not demonstrate a

complete chain of custody for the blood samples taken from C.R. and

her baby because the samples were mistakenly shipped to the

Baltimore lab. Weeks also alleges that the samples could have been
tampered with while there. However, the record does not support

Weeks' contentions. While it is true that the medical technologist

who originally withdrew the blood samples from C.R. and the baby

shipped them to Baltimore RH Typing Laboratory, the State

demonstrated that it contacted the Baltimore lab the same day the

lab received the samples and instructed it to send the samples to

Genelex. The chain of custody documentation evidences the

following: (1) the Baltimore lab received the samples on July 23,

1992, at 8:35 a.m.; (2) a lab worker opened the shipping package

and noted that blood samples' condition was fine; (3) the State

13
contacted the Baltimore lab by facsimile that same day and
requested that the samples be shipped to Genelex; (4) the Baltimore

lab shipped the samples to Genelex on July 23, 1992; and (5)
Genelex received the samples the next day. Furthermore, Howard
Coleman, the president of Genelex, testified that the evidence tape

sealing the samples was intact, and there was no evidence that the

samples themselves had been opened or tampered with in any way.

This Court has previously held that it is not necessary for

the State to call as witnesses at trial each person who handled the

evidence in order to establish a chain of custody. State v.

Bradley (1993), 262 Mont. 194, 198-99, 864 P.2d 787, 790. In

Bradlev, we held that testimony concerning the chain of custody

from the time a blood sample was drawn, to when it was shipped,

along with the laboratory log listing the names of the persons at

the lab who handled the evidence was sufficient to establish chain

of custody foundation. Bradley, 864 P.2d at 790. Likewise, here

we conclude that the documentation and testimony outlined above,

demonstrates a sufficient chain of custody of the samples from the

time they were withdrawn from C.R. and her baby until the time the

tests were conducted.

Regarding the tampering allegation, Weeks failed to present

any evidence that the sealed samples were actually altered or

tampered with in any way. The State's evidence, in fact, was to

the contrary. Accordingly, we conclude that this argument has no

merit. Armstronq, 616 P.2d at 355.

Weeks' next contention concerns the sample of blood withdrawn

14
from him. Weeks argues that the State failed to establish a
foundation for the admission of his blood sample because the sample
did not comply with "mandatory identification requirements." Weeks
suggests that because the procedure used to identify the blood
sample in this case did not follow the identification procedures
set forth in Genelex's lab manual, i.e., the sample was not
accompanied by a signed fingerprint or signed photograph, Genelex
had no means of connecting the sample to Weeks. Weeks relies on
State v. McDonald (1985), 215 Mont. 340, 697 P.2d 1328, as support
for his argument that failure to follow the requirements of the
administrative rules of Montana is analogous to failure to follow
a laboratory manual. We disagree, and conclude there was
sufficient evidence to prove that the blood sample Genelex tested
was the same sample withdrawn from Weeks, as is evidenced by the
following facts.
John Oritz testified that in February 1992, while he was
employed as an investigator for the Broadwater County Attorney's
Office, he received a signed consent from Weeks to take a sample of
Weeks' blood. Oritz and Weeks went to the Broadwater Health Center
in Townsend, where Katherine Carr, a medical technologist, drew
three vials of Weeks' blood. Carr testified that she labeled the
vials with Weeks' name, the date, and the time of the procedure.
Carr then packed the samples and gave them to Oritz. Carr also
testified that Oritz watched the procedure, and that she personally
knew Weeks.
Oritz testified that he placed evidence tape over the sample's

15
lids, and stored them in the evidence refrigerator at the sheriff's
office until he mailed them to Genelex through registered mail.
Genelex's chain of evidence documentation indicates it received the

samples by registered mail on February 24, 1992.

Coleman testified that while Genelex's laboratory manual

states that a sample should be accompanied by a signed fingerprint

or signed photograph, he also stated that it was impossible for the

manual to cover every eventuality that might occur. Coleman

explained that Genelex would accept a specimen which deviated from

the procedures contained in the laboratory manual if it followed

accepted laboratory practice and forensic and law enforcement

practice in terms of the maintenance of custody. Coleman added:

The typical kinds of cases in which we don't have that
sort of documentation [i.e., documentation set forth in
Genelex's laboratory manual] is the case exactly such as
this one, a criminal case where one of the parties who
has been drawn has been in custody of a law enforcement
officer at the time of the blood draw and the law
enforcement officer will provide the specimen to us on
their chain of custody forms and they will sign off on it
and send it to us then in an appropriate manner.

Coleman also testified that the identification procedure set

forth in its lab manual was merely administrative procedure which

did not affect the laboratory procedure, and did not invalidate the

testing. Finally, Coleman noted that in this case, "the bottom

line is that the chain of custody was maintained." Accordingly, we

conclude that Weeks' allegation that the State failed to establish
a proper foundation for chain of custody for his blood sample is

also without merit.

Finally we address Weeks' argument that Genelex could have

16
tested from the broken sample received by the Montana State Crime

Lab, and returned to Genelex. The record again demonstrates that
Genelex did not test from this sample because Coleman testified

that Genelex did not use the sample it received from the crime lab

for testing, but rather conducted the tests using the original

samples. Therefore, we conclude that Weeks did not demonstrate the

blood sample Genelex used for testing had been contaminated while

in the State's possession.

Upon considering all of Weeks' allegations of error, we hold
that the District Court did not abuse its discretion in admitting

evidence of the blood samples and the test results thereof.

3. DNA AND SEROLOGICAL EVIDENCE

Background
Before we begin our discussion of the alleged errors
concerning the DNA and serological analysis evidence, a brief

overview of the DNA and statistical analysis conducted in this case

is necessary.

DNA makes up units called chromosomes. In the nucleus of each

cell there are 46 chromosomes arranged in 22 pairs plus one pair of

sex chromosomes. An individual inherits one-half of his or her

chromosomes from the father, and one-half from the mother.

Therefore, scientists are able to determine a genetic profile of

the father of a child by examining the genetic traits of the mother

and her child.

DNA analyses are frequently used in paternity cases.
In the typical case, laboratories perform genetic tests
on the mother, child, and alleged father to arrive at a
so-called 'paternity index.' This is a measure of the

17
 strength of the genetic evidence, where higher numbers
are more probative of paternity than lower numbers.
Essentially, it is a ratio of the chance that the alleged
father, if he was the father, would transmit the genetic
markers observed in the child to the chance that a
randomly selected man from the reference population, if
he was the father, would pass along these markers.

Koehler, DNA Matches and Statistics, 76 JUDICATURE, 222, 224 (1993).

In this case, Genelex conducted the DNA paternity testing
using a process called Restriction Fragment Length Polymorphism

analysis (RFLP). As explained in -I
Moore 855 P.2d at 465-66, RFLP
analysis involves several steps: extraction of the DNA from the

evidentiary sample; fragmentation (cutting) of the DNA molecules at

specific sites into restriction fragments; assortment of the
fragments by gel electrophoresis; Southern transfer, a process

which transfers the DNA fragments onto a nylon membrane;

hybridization with radioactive probes; and production of

autoradiographies (autorads) by placing x-ray film over the nylon

membrane, thereby revealing the restriction fragments (or alleles),

which appear as dark bands on the film.
Genelex used four different probes to analyze the DNA profile

of C.R., the baby, and Weeks. Specifically, Genelex examined

certain loci (or sites) on chromosomes two, four, ten and

seventeen, to determine whether Weeks and the baby shared a common

band at each location. For each locus examined, Weeks has a gene

which is indistinguishable from the baby's obligate (paternal)

gene.

The next step, the statistical analysis, attempts to

determine how often the particular bands would occur in the

18
relevant racial population, thereby demonstrating how frequently
the genes of the alleged father occur in the relevant racial

population. TO make this statistical analysis, Genelex prepared a

database which is comprised of DNA profiles of several hundred

people to determine the sizes of specific DNA fragments (alleles)

in all the individuals tested. The scientists then determine how

often a particular allele occurs within the database.

To determine how often an allele is found within the database,
Genelex uses a process called "binning," whereby the alleles are

separated by size range and assigned to separate bins. For
example, an allele which is comprised of approximately 2,500 base
pairs is placed into a bin with alleles which are comprised of

between 2,000 and 3,000 base pairs. Once an allele is assigned to

a bin, the scientist determines how frequently it occurs within the

database.

The scientist then compares the alleles in question (in this

case the alleles shared between Weeks and the baby) to the alleles

generated from the database. Then using certain basic formulas

from population genetics, the scientist makes a statistical

determination of how frequently that particular allele is found in

the same racial population.

Here, Genelex examined four probes, determined how frequently

they were found in the database, and then, using a multiplication

or product rule computed an aggregate estimate of the statistical

probability that the combination of alleles would be found in the

relevant racial population. For example, if one allele is found in

19
ten percent of the population, and another allele is found in fifty
percent of the population, scientists, (knowing that the occurrence

of these genes is independent of each other) apply the product rule

and conclude that the probability of a coincidental match on both

alleles is 0.10 x 0.50 = 0.05 or a five percent probability.

Upon completing the statistical analysis, Genelex concluded

that Weeks "is 154,000 times more likely to be the father of the

baby . . than a random man."

Discussion

Weeks argues that the District Court erred in admitting the
DNA evidence and its accompanying statistical data on several

grounds. We will first address Weeks' objections to the DNA

testing evidence, and then his objections to the statistical

evidence.

Standard of Review

Rulings on the admissibility of evidence are left to the sound

discretion of the trial court, and the court's decision will not be

overturned absent an abuse of discretion. Moore, 885 P.2d at 467.

A. DNA Analysis Evidence

Weeks asserts that evidence of the DNA testing in general,
should not have been admitted because one set of standards does not

govern the industry. Weeks concludes that because the industry
uses various standards for testing, the laboratories do not have

guidelines concerning what procedures will be acceptable to the

courts , and likewise, the courts cannot be assured that the results
will be consistent from one laboratory to another.

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 While Weeks is correct in stating that one standard does not
govern the industry, that fact does not, in and of itself, impair

the reliability of the DNA analysis evidence. Weeks' own expert,
Dr. Moses Schanfield, testified that there are several sets of
standards governing the industry, citing: TWGDAM, or the Technical

Working Group on DNA analysis and Methods; HCFA, the Health Care

Finance Administration; and ASHE, the American Society of
Histocompatibility and Genetics. Schanfield also noted that most
laboratories that are engaged in paternity testing are accredited

by the American Association of Blood Banks (AABB) and that:
[while] there is no law requiring paternity testing
laboratories [to] be accredited. . . . virtually every
contract that comes out for parentage testing by a state
o r county agency requires that the laboratory be
accredited or have applied for accreditation with the
AABB so that even though there is no statutory
requirement, there is a de facto one that exists.

Dr. Schanfield added:

The standards should be considered minimal standards and
they are not specific because -- to use a colloquialism
there is more than one way to skin a cat. The reality is
there is more than one way to test an enzyme and get the
same results.

This Court has recently recognized that "the theory underlying

DNA and RFLP technology is generally not open to serious attack. .
I! Moore, 885 P.2d at 468. We also concluded that the general

reason courts exclude RFLP analysis evidence is because the

particular laboratory failed to adhere to generally accepted

techniques for obtaining relevant, reliable results. Moore, 885

P.2d at 468-69.

In this case, Weeks fails to point out any errors in Genelex's

21
testing procedures. Genelex is certified by the American
Association of Blood Banks. During the certification process, the
AABB reviewed Genelex's laboratory procedure manual, inspected the

various phases of the laboratory's operation, and its statistical

methods. Upon completion of the certification process, the AABB

issued Genelex a certification of accreditation. Accordingly, we
conclude that Weeks' argument concerning the lack of standards
governing DNA testing is without merit. See, Moore, 885 P.2d at
469.

B. Statistical Evidence

Weeks also alleges that the State failed to lay a foundation

for the admissibility of the DNA statistical analysis evidence. The

essence of Weeks' argument is that Genelex's database was too small

to project to a population of 100 million and that Genelex failed
to make statistical corrections to its database.

Genelex's database is comprised of approximately 300

individuals. From this database, Genelex extrapolates to the

frequency of a genetic occurrence within the United States'

population. According to Weeks, Genelex's database is too small

which is evident in the difference between the State expert's

conclusion that there might be "dozens" of men who carry the

genetic pattern which would show them to be the father of the baby,

and the defense expert's conclusion that 12,000 men would have the

same genetic pattern as the father of the baby. Dr. Schanfield,

the defense expert, based his calculations on the FBI database of

approximately 10,000 samples, while Mr. Coleman, the State's

22
expert, based his calculations on Genelex's database.

However, when questioned whether Genelex's database was too

small, Schanfield testified that Genelex's data base was the

minimum size to detect the bands being sought. Schanfield stated,

"I think the Genelex data base like most starting databases is

small. That is a reality of starting databases. Ours was that
size once, too. All it means is there are inherently larger errors

in it."

In addition, Coleman also agreed that calculations become more

accurate using a larger data base. However, in Coleman's opinion,

the differences would not be significant in light of the fact that

the statistical probability is an underestimate of the true number.

In United States v. Bond (6th Cir. 1993), 12 F.3d 540, 558,

the defendants also argued that the statistical probabilities of a

match would have been more accurate if a different database had

been used. Similar to the arguments raised here, the defendants in

Bond did not challenge the fact that the probabilities were

generated, but rather challenged the precision of the probability

estimate. Bond
-I 12 F.3d at 558. The Sixth Circuit Court noted

that the test for admissibility under Daubert v. Merrell Dow

Pharmaceuticals, Inc. (19931, U.S. , 113 S.Ct. 2786,

2796, requires only scientific validity for admissibility, not

scientific precision. -,
Bond 12 F.3d at 558. The Bond court

concluded that:

[T]he criticisms about the specific application of the
procedure used or questions about the accuracy of the
test results do not render the scientific theory and
methodology invalid or destroy their general acceptance.
23
 These questions go to the weight of the evidence, not the
admissibility.
Bond
-r 12 F.3d at 563.
Weeks does not contend that the scientific theory and
methodology underlying the probability estimates were invalid.

Rather, he argues that the conflicting testimony concerning the

probability determinations, renders the evidence inadmissible. We

disagree and conclude that the conflicting evidence was a matter of

weight for the jury to decide. See, Barmeyer v. Montana Power Co.

(1983), 202 Mont. 185, 193-94, 657 P.Zd 594, 598 ("it is better to
admit relevant scientific evidence in the same manner as other

expert testimony and allow its weight to be attacked by cross-
examination and refutation.") Accordingly we hold that the
District Court did not abuse its discretion in admitting the

statistical analysis evidence.

Weeks also asserts that the exaggerated opinion of the
accuracy of DNA testing is prejudicial, as juries would give undue

weight and deference to the statistical evidence. Weeks claims

that "[t]he popular media and the DNA laboratories themselves have

portrayed DNAtesting as 99.99% accurate in demonstrating 'matches'

of biological samples." Weeks concludes that the probability

aspect of the DNA analysis invades the province of the jury to

decide the guilt or innocence of the defendant.

Weeks relies on Rule 403, M.R.Evid., which allows a court to

exclude evidence " if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury. . .I( Weeks cites Delaware v.

24
Pennell (Del.Super. 1989), 584 A.Zd 513, to support his argument
that the impact of statistics upon a jury can be overwhelming.

However, we conclude that Pennell is unpersuasive, as the Delaware

court specifically did not adopt the position that statistical

analysis would never be proper. Rather, the Delaware court stated,
"[iIn this case, however, the State has failed to demonstrate a
degree of reliability necessary to admit such statistical

probabilities." Pennell, 584 A.2d at 522.

Weeks also cites Commonwealth v. Curnin (Mass. 1991), 565

N.E.Zd 440, and State v. Schwartz (Minn. 1989), 447 N.W.2d 422, to
support his argument. We find these cases to be unpersuasive as
well, as they were decided under the general acceptance test set

forth in Frye v. United States (D.C. Cir. 1923), 293 F. 1013, which

we rejected in Barrnever.

We recognize that courts must be mindful that the probative

value of statistical probabilities evidence is not outweighed by

any unfair prejudicial effect. United States v. Chischilly (9th

Cir. 1994), No. 92-10619, 1994 WL 382696, *g-*10; Bond, 12 F.3d at

567. However, Weeks presents no evidence in the record that

supports his contention that the statistical analysis evidence had

a prejudicial impact on the jury. Accordingly, we conclude that

the statistical analysis evidence was more probative than

prejudicial.
Weeks also alleges that the statistical analysis evidence

invades the province of the jury. Weeks states that because he was

charged with sexual intercourse without consent, the State must

25
prove that someone had sexual intercourse with the victim, and that

it was done without consent. According to Weeks, because C.R. was
13 years old at the time of the crime, she was incapable of giving

consent pursuant to § 45-5-501(l) (b) (iii), MCA, therefore, the

proof of sexual intercourse alone is the fact in issue. The fact
that C.R. had a baby "is in most circumstances, proof of sexual

intercourse." Therefore, Weeks argues the ultimate factual issue

is the identify of the perpetrator, which the statistics purport to

resolve.

Weeks' argument has no merit. Rule, 704 M.R.Evid., provides:

Opinions on ultimate issue. Testimony in the form of an
opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be
decided by the trier of fact.

Here, the jury was entitled to consider the statistical

analysis evidence along with all of the other direct and

circumstantial evidence to determine the question of Weeks' guilt

or innocence. The jury was free to disregard or discredit any of

the evidence. Furthermore, we note that Weeks' arguments that the

statistical evidence invades the province of the jury is weakened

by the fact that he himself offered statistical probabilities of

the DNA match for the jury's consideration.

The Iowa Supreme Court considered a similar argument in

State v. Brown (Iowa 1991), 470 N.W.Zd 30, 33. The Iowa Court

concluded that such an argument:

will exclude statistical probability testimony where it
is the most cogent, and allow it in evidence only where
there remains a degree of doubt because of the
inconclusiveness of the numbers. Where both are based on
the same scientific methods and facts, this makes little
26
 logical sense. Indeed, it might lead to the exclusion of
fingerprint evidence, which is also based on the
mathematical theory of probabilities that the chance of
two individuals bearing the same fingerprint (or prints)
is so infinitesimally small as to be negligible.
[Citation omitted.]

Finally, Weeks argues that the court erred in allowing Coleman

to testify concerning the statistical analysis generated by Genelex

from the serological evidence because the State did not provide

proper foundation.

The State Crime Lab conducted standard serological tests on
the blood specimens of Weeks, C.R., and the baby, and determined

that Weeks could not be excluded as the baby's father. The samples

were analyzed for ADO antigen type, six red blood cell enzymes and

one serum protein. Upon receiving the serology reports from the

State Crime Lab, Genelex calculated a combined paternity index of

12.43; i.e., Weeks is 12.43 times more likely to be the baby's

father than a random Caucasian-American man. Genelex then used the

statistics generated from the serological tests and the statistics

generated from the DNA analysis to reach a combined statistical

analysis. Coleman acknowledged that the combined calculation was

an approximation because he could not insure that the systems were

"unlinked" to the DNA profiles. Coleman's testimony concerning

these statistical analyses was offered and received into evidence

at trial without objection.

The State argues that Weeks waived his objection concerning

the admissibility of the combined statistical analysis evidence

because he did not object to the foundation for the evidence at
either the admissibility hearing or at trial. Weeks maintains that

27
he established and preserved his objection by filing a motion in

limine before trial. While a motion in limine may preserve a
SpeCifiCatiOn of error for appeal, State v. Brown (1984), 209 Mont.

502, 506-07, 680 P.2d 582, 584-85, that does not negate the
obligation of the objector to make the basis and grounds for his

objection clear to the court. "A district court will not be put in

error where it was not given an opportunity to correct itself."

BrownI
- 680 P.2d. at 584. In addition, specific objections must be

made to portions of testimony deemed inappropriate; broad general

objections do not suffice. State v. Anderson (1984), 211 Mont.

272, 290, 686 P.2d 193, 202-03; State v. Courchene (1992), 256
Mont. 381, 385, 047 P.2d 271, 273.

While Weeks did object to the admission of the statistical

analysis evidence, he failed to specify any reasons or authority

regarding why the evidence should be excluded. Rather, Weeks

relied on sweeping conclusory statements that the serological

statistical evidence is inadmissible. For example, Weeks stated in

his motion to exclude:

In order to make the complexity and multiplicity of their
errors clear to the Court, the Defendant points out that
after calculating the erroneous statistics for the
serology analysis, Genelex went on to multiply that by
the erroneous statistics for their DNA analysis. . .

Weeks' "objection" simply assumes, without proof, that the

serology and DNA statistical probabilities are "erroneous. IT

Moreover, Weeks motion in limine did not contain an objection to

the combined statistical analysis evidence on a foundation basis,

rather it set forth an argument that the evidence was prejudicial.

28
Simply objecting to evidence because it is prejudicial is not
sufficient. State v. Arlington (19941, 265 Mont. 127, 150, 875
P.2d 307, 321, ('I [pl rejudice in a criminal case will not be

presumed, it must be established by the record. . . [that] the
prosecution denied the defendant a substantial right"). Evidence
offered by a litigant in support of, or in defense of its case

usually is prejudicial to the other side's case. If it were not,

there would be little reason to offer the evidence.
Pursuant to 5 46-20-104(2), MCA, " [flailure to make a timely

objection during trial constitutes a waiver of the objection,

except as provided in 46-20-701(2)." Section 46-20-701(2), MCA,

states that unless an objection is made, U [alny error, defect,

irregularity, or variance which does not affect substantial rights

shall be disregarded."
This Court will not consider issues raised for the first time

on appeal when the appellant had the opportunity to make an

objection at the trial level. State v. Webb (1992), 252 Mont. 248,

251, 828 P.2d 1351, 1353. We conclude that Weeks waived his

objection to the statistical evidence regarding the serological

testing by his failure to make a specific objection in his motion

in limine and by his failure to make any objection at the

admissibility hearing or at trial. Furthermore, Weeks failed to

demonstrate that his substantial rights were prejudiced.

Moreover, having thoroughly reviewed the entire record, we are

satisfied that while the foundation laid by the State for the

combined statistical analysis evidence might have been more

29
detailed, there was no showing that such evidence was inaccurate,
inherently unbelievable, unduly prejudicial or inflammatory. The
combined statistical evidence was, in fact, consistent with and
merely corroborative of other scientific, circumstantial and direct

evidence in this case.

After considering all of Weeks' arguments concerning the

admissibility of the DNA and serological evidence, we hold that the

District Court did not abuse its discretion by admitting evidence

of the DNA analysis and the statistical analysis conducted in this

case.

4. MOTION FOR JUDGMENT OF ACQUITTAL

Weeks maintains that the District Court erred when it denied

his motion to dismiss at the conclusion of the State's case. Weeks

argues that there was insufficient evidence to convict him of the

charge of sexual intercourse without consent because the State

failed to prove that Weeks actually penetrated C.R. We disagree.
Pursuant to § 46-16-403, MCA, a district court may dismiss a

criminal action at the close of the State's case when the evidence

is insufficient to support a verdict of guilty. This Court has

previously held that a trial court should grant a motion for a

directed verdict of acquittal only when there is no evidence to

support a guilty verdict. State v. Mergenthaler (1994), 263 Mont.

198, 203, 868 P.2d 560, 562-63. The standard of review for a

directed verdict of acquittal, is "whether, after reviewing the

evidence in a light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime

30
beyond a reasonable doubt." State V. Bower (1992), 254 Mont. 1, 6,
833 P.Zd 1106, 1110.

Weeks was charged under § 45-5-503, MCA (1991), which
provides:

Sexual intercourse without consent. (1) A person who
knowingly has sexual intercourse without consent with
another person commits the offense of sexual intercourse
without consent. . .

"Sexual intercourse" is defined at 5 45-2-101(61), MCA (1991), for

purposes of this case as:
[Plenetration of the vulva, . . . of one person by the
penis of another person. . Any penetration, however
slight, is sufficient.

The record in this case evidences the following facts
regarding penetration: (1) C.R. testified that Weeks had sexual

intercourse with her several times a week from the time she was

eight years old until she left the home; (2) C.R. testified that

she knew Weeks was the father of the baby because she did not have

sexual intercourse with anyone else; (3) C.R. testified she learned

what the term sexual intercourse meant after speaking with a worker

at the Florence Crittenton Home, and that was what Weeks was doing

with her; (4) C.R. had a baby, and the statistical interpretation

of the DNA analysis demonstrated that Weeks was 154,000 times more

likely than a random man to be the father of the child, and the

combined statistical analysis of the serological and DNA testing

indicated that Weeks was 1.9 million times more likely to be the

father of the baby than a random man.

Based on the above, we conclude that the State provided

sufficient evidence upon which a rational trier of fact could find
31
Weeks penetrated C.R. Therefore we hold the District Court
properly denied Weeks' motion for a directed verdict of acquittal.

5. PRIOR SEXUAL ABUSE

The final issue Weeks raises on appeal is whether the District
Court abused its discretion when it excluded evidence of prior

sexual abuse of C.R. Pursuant to 5 45-5-511(2), MCA, the rape

shield statute, the State moved to limit evidence of C.R.'s prior

sexual conduct, except evidence of prior conduct which was relevant

to show the origin of her pregnancy, or evidence of C.R.'s past

sexual conduct with Weeks. The court granted the motion, limiting
defense counsel from presenting any evidence of C.R.'s past sexual

conduct, except for evidence of sexual conduct within the time

frame for the period of conception. Before trial, the State moved

that Weeks' witnesses be interviewed in chambers prior to

testifying to ensure compliance with the court's order. The court

granted the motion.

Accordingly, outside the presence of the jury, Weeks presented

the testimony of two potential witnesses: thirteen year old G.Q.,

and fourteen year old N.H. N.H. stated that in the fall of 1991,

C.R. had told her that C.R.'s brother was having sex with her.

N.H. also related that C.R. told her that C.R.'s brother made C.R.

undress in front of him and his friends. However, N.H. did not

know when the alleged incidents occurred.

G.Q. related that in October of 1991, C.R. told her that

C.R.'s brother had forced C.R. to go to bed with him. According to

G.Q., C.R. said this incident had occurred a few nights before.

32
G.Q. also stated that C.R. had told her that her brother, and

"Gordon," an adult male, had intercourse with C.R. on several

occasions. When asked if C.R. had ever mentioned anything about

Weeks, G.Q. related that C.R. told her that Weeks "was the nicest

person. 'I

The District Court would not allow N.H. to testify, because

the defense could not establish that the conduct between C.R. and

her brother occurred within the general parameters of the

conception period. Therefore, the court ruled N.K.'s testimony was

impermissible under the rape shield statute. The court limited
G.Q.'s testimony to the incident which occurred in October of 1991;

that C.R.'s brother had forced her to go to bed with him. The

court excluded the remainder of G.Q.'s testimony, ruling that it

was irrelevant and violative of the rape shield statute. On

appeal, Weeks argues that the court's rulings violated his due

process rights because he was not able to challenge the credibility
of C.R.

Section 45-S-511(2), MCA, prohibits evidence concerning the

sexual conduct of the victim of a sexual crime, "except evidence of

the victim's past sexual conduct with the offender or evidence of

specific instances of the victim's sexual activity to show the

origin of semen, pregnancy, or disease which is at issue in the

prosecution." The purpose of the rape shield statute is to prevent

the trial from becoming a trial of the victim. State v. Steffes

(1994) P.2d , 51 St.Rep. 1463, 1469. It is well

established that inadmissible evidence concerning sexual conduct of

33
the victim includes prior sexual abuse. state v. Lamb (1982), 198
Mont. 323, 646 P.2d 516; State v. Rhyne (19921, 253 Mont. 513, 519,

833 P.Zd 1112, 1116; Steffes, 51 St.Rep. at 1469.

However, the protection of victims under the rape shield

statute must be balanced against the defendant's right to confront

witnesses. Steffes, 51 St.Rep. at 1469-70. This Court has
determined that defendant's right to confront witnesses is not

abridged by the exclusion of evidence of the victim's prior sexual

abuse unless the victim's accusations or allegations of prior
sexual abuse have been proven to be false. State v. Van Pelt

(1991), 247 Mont. 99, 104, 805 P.Zd 549, 552.

In this case, Weeks failed to demonstrate how his rights were

abridged. The District Court allowed G.Q. to testify concerning

the incident which occurred within the conception time period. The
court concluded that this testimony was relevant to establish that

the origin of C.R.'s pregnancy could have been someone other than

Weeks, even though the genetic tests excluded C.R.'s brother as the

possible father of the child. The remainder of the proposed

evidence was clearly violative of the rape shield statute.

The determination of admissibility under the statute is left

to the discretion of the trial court and will not be disturbed on

appeal absent an abuse of discretion. Van Pelt, 805 P.2d at 552.

Upon review, we hold that the District Court did not abuse its

discretion in excluding the evidence of prior sexual abuse which

would not demonstrate the origin of C.R.'s pregnancy.

In conclusion, after considering all of the issues raised by

34
Weeks, we hold that the District Court did not commit reversible
error as to any issue raised on appeal. Acsordingly,,, Weeks
conviction is AFFIRMED.

Jfstice
We Concur: 1

35