State v. Johnson

96-694

No. 96-694

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 107

STATE OF MONTANA,

Plaintiff and Respondent,

v.

CLYDE ALLEN JOHNSON,

Defendant and Appellant.

APPEAL FROM: District Court of the Twenty-First Judicial
District,
In and for the County of Ravalli,
Honorable Jeffrey H. Langton, Judge Presiding.

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, Appellate Defender, Helena, Montana; J. G.
Shockley (argued), Victor, Montana

For Respondents:

Honorable Joseph P. Mazurek, Attorney General; Jennifer
Anders (argued),Assistant Attorney General, Helena, Montana; George H. Corn,
County Attorney, Hamilton, Montana

Heard: February 17, 1998
Submitted: February 26, 1998
Decided: May 5, 1998

Filed:

__________________________________________
Clerk

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Chief Justice J. A. Turnage delivered the Opinion of the Court.

¶1 In a Ravalli County jury trial before the Twenty-First Judicial District
Court, Clyde Allen Johnson was convicted of three counts of sexual intercourse
without consent. He appeals. We affirm.

¶2 The issues are:

¶3 1. Did the District Court abuse its discretion when it precluded
Johnson from cross-examining the victim or offering other evidence of her
prior sexual conduct with other men?

¶4 2. Did the court err in admitting the annotated transcription of an
interview of the victim by the investigating officer?

¶5 3. Did the court err in granting the jury's request for a copy of the
annotated transcription during deliberations?

¶6 Clyde Allen Johnson spent the afternoon of May 23, 1994, at Chaffin
Motor in Hamilton, Montana, helping the owner of the business, Chad
Chaffin, and two other men, Brad Grenfell and Jay Bier, put an engine in a
truck. A 28-year-old woman, the victim in this case, was also working at
Chaffin Motor that day, "detailing" another truck to prepare it for sale. The
victim and Johnson had not met before, although he had seen her around town.

¶7 As they worked, they all drank beer and talked about fishing. At the
end of the afternoon, the victim asked Chaffin for a ride home. Chaffin told
her he would take her home when he finished putting the engine in the truck.
She decided not to wait and began walking. As she was walking on the left
side of the highway, Johnson's car pulled up behind her in the wrong lane of
traffic, and he offered her a ride. She agreed, getting into the car quickly
because of oncoming traffic.

¶8 The trial testimony of Johnson and the victim differed as to what
happened next. The victim testified that she gave Johnson directions to the
house where she lived with her boyfriend and his mother. She noticed that
Johnson was not following her directions and at first thought he must have had
an errand to run in town. However, when she mentioned that he was going in
the wrong direction, he sped up and told her that he wanted to "party." When
she told him that she wanted to go home, he leaned very close and said
repeatedly, "I'm going to fuck you." The victim told Johnson that she did not
want to "party" and that she needed to get home for dinner or her boyfriend
would wonder where she was. Johnson proceeded to drive several miles out
of town, up to the Canyon Creek trail head.

¶9 Johnson testified, in contrast, that after the victim got into his car, they
agreed to go fishing. Because neither of them had a fishing license and
because the victim did not want her boyfriend to know what she was doing,

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they decided to fish at the somewhat remote Canyon Creek trail head.

¶10 At the trail head, Johnson and the victim got out of his car and walked
toward the nearby creek. The victim testified that Johnson was holding her
tightly by the arm and that she was trying to make conversation to "keep him
calm." A couple visiting Montana from New Hampshire walked past them on
the short trail to the creek. The woman from New Hampshire heard the victim
nervously ask Johnson if he wanted her to tell him her whole life story.
Johnson said, "Howdy" to the couple, but the victim did not speak to them,
and she testified that she did not even see them.

¶11 According to the victim, after she and Johnson got to the creek, she
suggested that they go back to town and get her fishing pole, hoping that this
would give her an opportunity to escape. Johnson instead went back to his car
and got his fishing pole. The victim testified that she did not believe she had
time to escape while he was at his car. When he returned, they fished briefly.
Johnson then led her to a spot near the trail, pushed up her t-shirt and bra, and
pushed her shorts and panties down. She left one leg in her shorts in
preparation for escape. Johnson forced her to engage in three separate acts of
sexual intercourse with him, and attempted a fourth, anal intercourse, on the
ground near the creek. She testified that she did not actively fight back
because she was afraid to provoke a violent physical response from him.

¶12 Johnson testified, in contrast, that their acts of sexual intercourse near
the creek were consensual and did not include attempted anal intercourse. He
testified that after they fished, they kissed for awhile. Then the victim took
him by the hand and led him up the trail, where she sat down and pulled her
pants and panties down. He laid down beside her and they proceeded to have
intercourse. He testified that when they finished having sex, the victim got up
and walked away; he believed she was just going back to his car.

¶13 The victim testified that at the first opportunity she saw, she got up
from the ground and ran away. The couple from New Hampshire saw her bolt
past them in the parking area, again not appearing to notice them, and then run
right off the road over an embankment. The couple became convinced that
something was wrong. At that point, Johnson came down the trail and asked
if they had seen the victim. They said "no" and directed Johnson off into the
woods (the wrong way) to look for her.

¶14 The man from New Hampshire got into his van and drove down the
road in the direction the victim had gone. After he drove around several
curves, the man heard thrashing in the underbrush and then the victim
reemerged onto the road. He stopped the van and called out, "I'm here to help
you," to which she replied, "Thank God, thank God, thank God for you, you're
an angel, you saved me." She got into the van and hid in the back. The man
asked if Johnson was armed, and the victim replied, "Only with his dick."

¶15 The man then went back to the trail head and asked his companion to
take the victim to get the police. Johnson reappeared and said he was going
to go get the victim's brother to help look for her. Johnson then left in his car,
returning with Grenfell, who was not a brother of the victim. Two Ravalli

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County sheriff's officers arrived shortly thereafter and arrested Johnson.

¶16 At the jury trial, the victim, Johnson, and the couple from New
Hampshire testified, as did Chaffin, Grenfell, and the investigating officers.
The doctor who examined the victim after the incident testified that her vagina
was packed with forest debris, and that she had a "fairly flat" and "unemotional"
affect, not unusual in a person who had undergone trauma and abuse.
The doctor testified that the victim did not appear to be drunk so he did not
test for alcohol content in her blood.

¶17 The jury convicted Johnson of three counts of sexual intercourse
without consent and acquitted him of the fourth count, attempted anal sexual
intercourse without consent. He appeals.
Issue 1

¶18 Did the District Court abuse its discretion when it precluded Johnson
from cross-examining the victim or offering other evidence of her prior sexual
conduct with other men?

¶19 Montana's rape shield statute, § 45-5-511, MCA, provides in relevant
part:
(2) No evidence concerning the sexual conduct of the
victim is admissible in prosecutions under this part 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 statute, enacted in 1973, "reflects a compelling interest in favor of
'preserv[ing] the integrity of the trial and . . . prevent[ing] it from becoming
a trial of the victim.'" State v. Anderson (1984), 211 Mont. 272, 283, 686 P.2d
193, 199. In reviewing a trial court's decision regarding the admissibility of
evidence relating to extrinsic sexual activity of an alleged victim of sexual
assault under the rape shield statute, this Court determines whether the lower
court abused its discretion. State ex rel. Mazurek v. Dist. Court of Fourth Jud.
Dist. (1996), 277 Mont. 349, 353, 922 P.2d 474, 477.

¶20 Johnson argues that the rape shield statute may not automatically be
applied to exclude evidence of the complainant's sexual activity not within the
enumerated exceptions. He asserts that is exactly what happened here, in
violation of his rights to due process and to confront the witnesses against him
as guaranteed under the Sixth Amendment to the United States Constitution.
He maintains that the victim's prior sexual activity was a factor which, if
developed at trial, would have established her motive to lie and to claim a lack
of consent. Amicus curiae Montana Association of Criminal Defense Lawyers
joins Johnson's argument, advocating that a constitutional catch-all provision
is necessary in the statute to protect defendants' constitutional rights.

¶21 Johnson points out that the United States Supreme Court has struck
down state evidentiary rules which arbitrarily or mechanistically operated to
exclude evidence material and relevant to the defense. See Washington v.

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Texas (1967), 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (striking a statute
which prohibited persons charged as accomplices from testifying for each
other as an arbitrary denial of the right to present evidence relevant and
material to the defense); Chambers v. Mississippi (1973), 410 U.S. 284, 302,
93 S.Ct. 1038, 1049, 35 L.Ed.2d 297, 313 ("where constitutional rights
directly affecting the ascertainment of guilt are implicated, the hearsay rule
may not be applied mechanistically to defeat the ends of justice"); Rock v.
Arkansas (1987), 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (restrictions on
the right to testify may not be arbitrary or disproportionate to the purposes
which they are designed to serve).

¶22 However, the Court has recently reaffirmed that a defendant's right to
present relevant evidence under the Fifth and Sixth Amendments is not
unlimited, but rather is subject to reasonable restrictions. In United States v.
Scheffer (1998), ___ U.S. ___, 118 S.Ct. 1261, ___ L.Ed.2d ___, the Court
upheld a per se rule against admission of polygraph evidence in court martial
proceedings. In so doing, the Court restated that state and federal rules
excluding evidence from criminal trials do not abridge an accused's right to
present a defense so long as they are not arbitrary or disproportionate to the
purposes they are designed to serve. Scheffer, 118 S.Ct. at 1264.

¶23 This Court has recognized that the bar imposed by Montana's rape
shield statute is not absolute. The statute allows narrowly-drawn exceptions
to the exclusion of evidence of a complainant's sexual conduct. "[T]he policy
is not violated or circumvented if the offered evidence can be narrowed to the
issue of the complaining witness' veracity." Anderson, 211 Mont. at 284, 686
P.2d at 200, citing Hall v. State (Ind. App. 1978), 374 N.E.2d 62. At the same
time, this Court recently noted that it has "consistently upheld the exclusion
of prior sexual conduct evidence rejecting claims that the Sixth Amendment
of the United States Constitution and Article II, 24 of the Montana
Constitution guarantee the defendant the right to introduce such evidence."
Mazurek, 277 Mont. at 354, 922 P.2d at 478.
We have held that the Sixth Amendment right of confrontation
is not absolute and that the Rape Shield Law serves a compelling
state interest in preventing rape trials from becoming trials
on the prior sexual conduct of the victims. In balancing the
rights of victims and the rights of the defendant we have stated
that: "The Sixth Amendment is not absolute, and 'may bow to
accommodate other legitimate interests in the criminal trial
process.' The rape shield statute has been upheld as a legitimate
interest justifying curtailment of the constitutional right to
confront witnesses."

Mazurek, 277 Mont. at 354-55, 922 P.2d at 478 (citations omitted).

¶24 The constitution does not require a blanket exception to rape shield
statutes for all evidence related to motive to fabricate. Speculative or
unsupported allegations are insufficient to tip the scales in favor of a
defendant's right to present a defense and against the victim's rights under the
rape shield statute. See State v. Rhyne (1992), 253 Mont. 513, 521, 833 P.2d
1112, 1118; State v. Fitzgerald (1989), 238 Mont. 261, 263-64, 776 P.2d 1222,

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1223-24; State v. Laird (1987), 225 Mont. 306, 310, 732 P.2d 417, 420.

¶25 In a pretrial motion, Johnson proposed to introduce evidence that the
victim was cohabitating with her boyfriend at the time of the rape and that she
had a crush on Chad Chaffin. Johnson's counsel further alleged in that motion,
"A fact not known to Mr. Johnson at the time, liaisons with other men had on
more than one occasion caused [the victim's boyfriend] to leave [the victim]."
The defense alleged that these matters were relevant to show that the victim
had a motive to lie in order to prevent her boyfriend and Chaffin from finding
out about what the defense alleged was consensual sex. The court denied the
motion, ruling that the defense's theories had been presented "without offer of
proof establishing a significant factual basis."

¶26 The only specific allegations made by the defense in its initial motion
were that the victim had had sexual relationships with her boyfriend and with
Chaffin. The court allowed considerable testimony concerning those two
relationships.

¶27 As part of the evidence submitted for the jury's consideration, the court
allowed the defense to elicit the victim's admissions that she had told Johnson
she was in love with Chaffin and that she had a crush on him. The defense
also elicited the victim's testimony that at the time of the rape, she and her
boyfriend (not Chaffin) were planning on getting married and that they were
living together. The court further allowed the defense to ask the victim
whether, on the afternoon of the rape, she told Johnson that she had to get
home or her boyfriend would be mad, which she admitted. The defense
questioned the victim as to why she did not scream during the rape, why she
did not run away sooner, and whether she had made a statement in the
transcription that she "pretended [she] liked part of it [the sexual intercourse
with Johnson]."

¶28 The court allowed Johnson to testify that the victim was "obsessed
with" Chaffin and upset that he was not paying attention to her. The court also
allowed Johnson to testify that he and the victim decided to go fishing up
Canyon Creek so that her boyfriend would not find out. Finally, Johnson was
allowed to testify at length that the acts of sexual intercourse between him and
the victim were consensual.

¶29 In short, the court allowed extensive testimony relating to the defense
theory concerning a motive to lie on the part of the victim. All of this belies
the defense's allegation that the jury was not permitted to consider the victim's
statements in context of the defense theory that she was making up the
complaint to cover up an incident of consensual sexual intercourse.

¶30 The defense raised its motion to introduce evidence twice more--in an
offer of proof on a motion for reconsideration of the court's ruling on the
initial motion, and on the morning of trial. Immediately before trial, counsel
for the defense made an offer of proof in which he referred to an August 1994
statement by Chaffin, which had been taped and transcribed. The defense
further alleged that Chaffin, Chaffin's sister, and Grenfell would all say that
the victim had been thrown out by her boyfriend because of her sexual

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misconduct with other people. However, the defense did not submit any
support for these allegations.

¶31 At oral argument before this Court, the State pointed out that the sole
apparent basis for Johnson's claim that prior liaisons between the victim and
other men had caused her boyfriend to break up with her was a transcript of
a taped interview with Chaffin in August 1994, several months after the rape.
In that interview, Chaffin stated that the victim was no longer living with her
boyfriend, but had lived by herself for "two weeks . . . or so" because "she
went on one of her little flings . . . [the boyfriend] found out . . . and kicked
her out[.]"

¶32 This statement by Chaffin does not speak to anything which could have
provided a motive for the victim to lie at the time of the rape. The event to
which he referred occurred "two weeks . . . or so" before his statement was
made, which was several months after the rape. The defense did not include
Chaffin's interview statement as part of its offer of proof. A copy of the
statement, which was not introduced into evidence, is in the exhibit file.

¶33 The defense claims it was denied the opportunity to interview the
victim and her boyfriend until the last minute. It did not, however, raise this
point during the year and a half in which this case was pending, but only on
the morning of trial. We note that the defense was provided the services of a
private investigator and did not complain until the day of trial that it was in
any way unable to prepare its case.

¶34 Johnson himself acknowledges that a limitation, without a blanket
prohibition, may be proper as to evidence of the victim's alleged motive to lie.
After reviewing the record, we conclude that this case does not present an
example of a blanket application of the rape shield statute as to evidence
related to motive to fabricate. We conclude that the facts alleged and about
which questioning was not permitted were speculative and unsupported, and
are therefore insufficient to tip the scales in favor of Johnson's right to present
a defense and against the victim's rights under the rape shield statute. We hold
that to the extent the District Court denied the defense's motions to present
evidence of the victim's prior sexual conduct and her relationships with other
men, that denial was not an abuse of discretion and violated neither Johnson's
right to due process nor his right of confrontation.
Issue 2

¶35 Did the court err in admitting the annotated transcription of an
interview of the victim by the investigating officer?

¶36 The admissibility of evidence is a discretionary ruling, and this Court
determines whether the trial court abused its discretion by admitting disputed
evidence. State v. Ahmed (1996), 278 Mont. 200, 206-07, 924 P.2d 679, 683.

¶37 At trial, the defense cross-examined the victim about an interview
which Detective Zerbst had conducted with her on the evening of the rape.
Referring to a transcription of that interview, counsel attempted to impeach the
victim's trial testimony with statements she had made to Detective Zerbst. The

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defense also cross-examined Detective Zerbst using the transcription of the
interview.

¶38 It became apparent during this cross-examination that the transcription
to which defense counsel was referring was not the same transcription in the
possession of the State--the defense's copy contained additional handwritten
comments, beginning at page 2. Out of the jury's presence, the court and
counsel determined that the copy in the defense's possession was one on which
the victim had added handwritten changes and additions. The prosecuting
attorney had given the victim a copy of the transcription, asking her to add to
it or correct it as she saw necessary. When the victim returned her annotated
copy to the county attorney's office, the office was closed, and she merely
slipped it under the door. When the annotated copy was found, it was believed
to be identical to the original, and was later mistakenly provided to the defense
as part of discovery. The State did not realize until during cross-examination
that the victim had made handwritten notes on a copy of the transcription and
that defense counsel had been given that copy.

¶39 The State proposed that because the victim had already been cross-examined
on parts of her transcribed and annotated statement, the statement
should be allowed into evidence under Rule 801(d)(1), M.R.Evid., as either a
prior consistent or prior inconsistent statement. Defense counsel argued that
the statement as a whole was inadmissible hearsay. The court reserved a
ruling on the admissibility of the annotated transcription, but the parties agreed
to examine the victim to explain to the jury the confusion over the two
different transcriptions.

¶40 During further cross-examination, the defense specifically questioned
the victim about her handwritten statement on page 9 of the transcription that,
"I pretended I liked part of it I went back and forth." The victim confirmed
that this was her handwriting and that it was a true statement. On redirect, she
clarified that going "back and forth" did not describe her physical movements
with Johnson, but instead described how she felt mentally, i.e., "making him
think I liked it for a little bit, but then I'd get angry and I'd burst out with
verbal
abuse."

¶41 During closing arguments, both sides again addressed the victim's
statement to Detective Zerbst and her annotations on the transcribed copy of
that statement. The prosecutor argued that despite defense counsel's attempts
to impeach the victim with some of the statements, her trial testimony was not
"that inconsistent" with either her original or annotated statement. In his
closing, defense counsel played up the "back and forth" language which the
victim had handwritten in her statement, saying, "Take that in context, folks.
She was talking about her body and Mr. Johnson's body." He argued that the
sexual intercourse in which Johnson admittedly engaged with the victim was
consensual, or if not consensual, not knowingly nonconsensual to Johnson,
because the victim was acting as if she liked it.

¶42 The issue of the admissibility of the annotated transcription was
reopened during the jury's deliberations when the jury asked to be allowed to

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see the copy of the transcription "which includes [the victim's] written
changes." After lengthy discussion with counsel, the court decided to admit
nearly all of the annotated transcription into evidence, with the exception of
a small portion at the bottom of page 3 and the top of page 4 discussing
another event deemed prejudicial to Johnson. The court reasoned that based
upon the arguments made in the defense's closing, "we have more reason now
to put it in as a prior consistent statement than we had when it was first
offered."

¶43 Rule 801(d)(1), M.R.Evid., provides that a prior statement is not
hearsay if the declarant testifies at the trial and is subject to cross-examination
concerning the statement and the statement is either (A) inconsistent with the
declarant's testimony, or (B) consistent with the declarant's testimony and
offered to rebut an express or implied charge against the declarant of
subsequent fabrication, improper influence or motive. Johnson argues that the
victim's pretrial statements were not admissible as either a prior statement
consistent with her trial testimony offered to rebut a charge of subsequent
fabrication, or as a prior inconsistent statement.

¶44 The court allowed the statement as a prior consistent statement under
Rule 801(d)(1)(B), M.R.Evid. As to that subsection, Johnson maintains that
he did not allege a subsequent fabrication of the story, but that the victim
fabricated her story all along. He cites Tome v. United States (1995), 513 U.S.
150, 115 S.Ct. 696, 130 L.Ed.2d 574. In Tome, the Court interpreted Fed. R.
Evid. 801(d)(1)(B), which is different from Rule 801(d)(1)(B), M.R.Evid.
Johnson also points out, however, that this Court has interpreted Rule
801(d)(1)(B), M.R.Evid., to mean that "if a defendant does not assert that the
victim is subsequently fabricating her story, but claims, as in this case, she was
lying all along, prior consistent statements are not admissible." State v.
Lunstad (1993), 259 Mont. 512, 517, 857 P.2d 723, 726.

¶45 In this case, the prior statement in the annotated transcription may have
had general impeachment value to the defense, but our review of that
statement convinces us that nothing in it supported Johnson's theory that the
victim was concocting the rape to hide her promiscuity from others. The prior
statement thus provided no independent basis for defense counsel to question
the victim about a "motive to lie all along," but was relevant only to suggest
that the victim's overall credibility was suspect because of her various
statements concerning the rape.

¶46 The annotated statement was initially brought before the jury by the
defense, for purposes of impeachment. The defense attempted to use the
annotated transcription as a prior inconsistent statement by the victim. Under
that argument, the annotated transcription would have had to predate the
motive to lie. But, as the District Court noted, the victim's statements in the
annotated transcription proved to be fairly consistent with her trial testimony.
A prior consistent statement which predates the motive to lie is admissible into
evidence. Therefore, we conclude that the State was thereafter entitled to
utilize the statement as a prior consistent statement to rehabilitate the witness,
and the annotated transcription was admissible under Rule 801(d)(1)(B),
M.R.Evid.

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¶47 Finally, it is disingenuous for Johnson to argue that the annotated
transcription is a prior statement that could not be used by the State for its
substantive value. Johnson himself relied upon the annotated statement as
substantive evidence that the victim went "back and forth," implying that the
victim was consenting to sex.

¶48 We hold that the District Court did not abuse its discretion in admitting
the annotated transcription into evidence.
Issue 3

¶49 Did the court err in granting the jury's request for a copy of the
annotated transcription during deliberations?

¶50 Section 46-16-503(2), MCA, allows a Montana court to refresh the
jury's recollection of trial testimony under certain limited circumstances:
After the jury has retired for deliberations, if there is any
disagreement among the jurors as to the testimony or if the
jurors desire to be informed on any point of law arising in the
cause, they shall notify the officer appointed to keep them
together, who shall then notify the court. The information
requested may be given, in the discretion of the court, after
consultation with the parties.

Johnson's objection to granting the jury's request for a copy of the annotated
transcription during deliberations is based upon case law concerning jury
requests to rehear trial testimony during deliberations. In such cases, this
Court has held that trial courts should not furnish a transcript of the testimony
of any particular witness, in order to avoid placing undue emphasis on the
testimony of any one witness to the exclusion of all others. E.g., State v.
Harris (1991), 247 Mont. 405, 417, 808 P.2d 453, 460. However, if a jury has
"some particular reason or point" that it wants to resolve relating to the
evidence, the jury may submit the question for the court's consideration.
Harris, 247 Mont. at 418, 808 P.2d at 460.
[T]he court should determine what particular testimony has
caused the disagreement among the jurors. After making that
determination, the court shall exercise its discretion after
consultation with the parties, keeping in mind that the court
must avoid undue emphasis upon particular testimony as
condemned in State v. Harris.

State v. Mayes (1992), 251 Mont. 358, 374, 825 P.2d 1196, 1206.

¶51 This case is in no way analogous to Harris or Mayes. First, the ruling
did not place undue emphasis on the victim's testimony to the exclusion of the
other evidence. At issue were the victim's statements, made at different times,
which defense counsel suggested were inconsistent with her trial testimony.
Defense counsel also asked the jury to consider the annotated transcription for
its substantive value, i.e., that the victim "went back and forth."

¶52 More to the point, the jury was not asking to review trial testimony, but

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to review a document referenced at trial and introduced into evidence. Section
46-16-504, MCA, allows the jury to take with it into the jury room "all
exhibits that have been received as evidence in the cause that in the opinion
of the court will be necessary." Like jury requests to be allowed to review trial
testimony, such requests must be decided so as to guard against the evidence
being given undue weight or emphasis. See State v. Christenson (1991), 250
Mont. 351, 361, 820 P.2d 1303, 1309.

¶53 The form of the jury's request indicated that the jury was interested in
the additions and corrections the victim made to her initial statement to
Detective Zerbst. The victim's handwritten corrections or additions appeared
on pages 2, 4, 5, 6, 7, 8, 9, 11, and 13 of the 23-page transcription. By
admitting the majority of the annotated transcription into evidence, the court
allowed the victim's statements to be placed in context. We conclude that this
was the only just result, given the manner in which the statements were used
at trial and that the victim's additions and corrections appeared on multiple
pages of the transcription. The court's ruling would have aided the defense if,
as the defense argued, discrepancies truly existed in the victim's statements.
We hold that the District Court did not abuse its discretion in granting the
jury's request to review the annotated transcription during deliberations.

¶54 Affirmed.
/S/ J. A. TURNAGE

We concur:

/S/ JIM REGNIER
/S/ JAMES C. NELSON
/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
/S/ W. WILLIAM LEAPHART
/S/ TERRY N. TRIEWEILER

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