State v. Blain Southern

No

No. 97-640

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 94

294 Mont. 225

980 P.2d 3

STATE OF MONTANA,

Plaintiff and Respondent,

v.

BLAIN SOUTHERN,

Defendant and Appellant.

APPEAL FROM: District Court of the First Judicial District,

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In and for the County of Lewis and Clark,

The Honorable Jeffrey M. Sherlock, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Edmund F. Sheehy, Jr., Helena, Montana

For Respondent:

Joseph P. Mazurek, Attorney General, Cregg W. Coughlin, Assistant Attorney General, Helena, Montana; Mike
McGrath, Lewis and Clark County Attorney, Lisa Leckie, Deputy Lewis and Clark County Attorney, Helena,
Montana

Submitted on Briefs: October 1, 1998

Decided: May 11, 1999

Filed:

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__________________________________________

Clerk

Justice James C. Nelson delivered the Opinion of the Court.

¶1. A jury in the District Court for the First Judicial District, Lewis and Clark
County, convicted Defendant Blain Southern (Southern) of two counts of kidnaping,
one count of burglary, one count of theft, and five counts of sexual intercourse
without consent. The District Court sentenced Southern to a substantial term of
years in prison and ordered that Southern be ineligible for parole. Southern appeals
his convictions. We affirm.

¶2. We address the following issues on appeal:

¶3. 1. Did the District Court err in denying Southern's motion to sever the counts
against him into four separate trials?

¶4. 2. Did the District Court err in denying Southern's motion in limine to preclude
the State from offering microscopic hair comparison evidence at trial?

¶5. 3. Did the District Court err in admitting DNA evidence which came from a rape
kit which a nurse sealed and then opened to double check her paperwork?

¶6. 4. Was the evidence sufficient to support Southern's convictions on Counts II

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through VIII?

Procedural Background

¶7. On March 5, 1997, the State charged Southern by Amended Information with
two counts of kidnaping, one count of burglary, one count of theft, and five counts of
sexual intercourse without consent. The Amended Information alleged that, on four
occasions from April 25, 1994, to June 10, 1996, Southern raped four older women in
the Helena area. The Amended Information also alleged that Southern kidnaped two
of the victims and burglarized and stole money from another victim.

¶8. On March 7, 1997, Southern filed a motion to sever the nine counts in the
Amended Information pursuant to § 46-13-211, MCA, based on there being four
different victims and claimed lack of similarity of the alleged crimes. Southern
asserted that joinder of the counts for trial was not proper under § 46-11-404, MCA,
and that he would be unfairly prejudiced if he was tried on all nine counts at one
trial. On April 16, 1997, the District Court denied Southern's motion to sever.

¶9. Southern filed a motion in limine on March 14, 1997, to prohibit the State from
introducing microscopic hair comparison evidence. Southern argued that
microscopic hair comparison evidence was inadmissible under Rules 702 and 403, M.
R.Evid. On April 10, 1997, the District Court denied Southern's motion in limine.

¶10. A jury trial was held April 28 through May 2, 1997. The jury found Southern
guilty on all nine counts charged in the Amended Information.

¶11. On July 11, 1997, the District Court sentenced Southern to imprisonment at the
Montana State Prison (MSP) for a term of one hundred years on each of four of the
counts of sexual intercourse without consent; to twenty years at the MSP on the
remaining count of sexual intercourse without consent; to ten years at the MSP on
each count of kidnaping; to twenty years at the MSP for the count of burglary; and
to six months at the Lewis and Clark County Jail for the count of theft. The court
ordered that all sentences run consecutively and that Southern be ineligible for
parole. Southern appeals his convictions. To the extent necessary, we will discuss the
facts of Southern's crimes as part of our analysis of the issues.

Issue 1.

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¶12. Did the District Court err in denying Southern's motion to sever the counts against
him into four separate trials?

¶13. The District Court ruled that Southern would not be prejudiced if tried on all
nine counts together, and thus denied Southern's motion to sever the counts into four
separate trials based on there being four different victims and claimed lack of
similarity of the alleged crimes. Southern contends that the District Court erred in
not considering whether the counts were properly joined in the Amended
Information. Southern asserts that the counts were misjoined and, therefore, that the
court erred in denying his motion to sever the counts in the Amended Information
into four separate trials. In the alternative, Southern asserts that the court erred in
denying his motion because severing the counts into four separate trials was
necessary to prevent unfair prejudice. The State, however, maintains that the counts
were properly joined and that Southern failed to prove that the prejudice was so
great that it prevented a fair trial. We agree with the State.

¶14. A criminal defendant seeking to sever counts into separate trials has the burden
of proving either that the counts were misjoined under § 46-11-404(1), MCA, or, if
joinder was proper, that severing the counts under § 46-13-211(1), MCA, is necessary
to prevent unfair prejudice. See State v. Richards (1995), 274 Mont. 180, 186, 906
P.2d 222, 226 (stating that, in issues regarding joinder and severance of criminal
charges, this Court first determines whether joinder of the charges was proper and
then determines whether severance of the charges was necessary to prevent prejudice
to the defendant). See also State v. Martin (1996), 279 Mont. 185, 192, 926 P.2d 1380,
1384 (citing State v. Slice (1988), 231 Mont. 448, 451, 753 P.2d 1309, 1311) (stating
that a criminal defendant moving for severance pursuant to § 46-13-211(1), MCA,
has the burden of proving that the joinder of the charges is prejudicial).

A.

¶15. Was joinder of the counts in the Amended Information proper pursuant to § 46-11-
404(1), MCA?

¶16. Southern argues that the counts of sexual intercourse without consent were
misjoined in the Amended Information because they were not sufficiently similar to
each other. Consequently, Southern contends that the District Court should have
severed the counts and conducted four separate trials on the charges as to each

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victim. The State, however, contends that the counts of sexual intercourse without
consent were sufficiently similar to each other and, therefore, that they were
properly joined in the Amended Information.

¶17. Determining whether charges were properly joined in a charging document is a
question of law which we review de novo. See United States v. VonWillie (9th Cir.
1995), 59 F.3d 922, 929 (citing United States v. Vasquez-Velasco (9th Cir. 1994), 15
F.3d 833, 843) (interpreting Rule 8(a), Fed.R.Crim.P.).

¶18. Section 46-11-404(1), MCA, provides in pertinent part:

Two or more offenses . . . may be charged in the same charging document in a separate
count, . . . if the offenses charged, whether felonies or misdemeanors or both, are of the
same or similar character or are based on the same transactions connected together or
constituting parts of a common scheme or plan.(Emphasis added.) Two or more offenses
do not need to be identical to be joined in an information pursuant to this statute; rather,
the offenses need only be sufficiently similar. Cf. State v. Whitlow (1997), 285 Mont. 430,
438, 949 P.2d 239, 244 (citing State v. Weldy (1995), 273 Mont. 68, 74, 902 P.2d 1, 5)
(stating that under the Modified Just Rule, which governs the admissibility of other
crimes, wrongs or acts in a criminal trial, that the other crimes, wrongs or acts need not be
identical to the charged conduct to be admissible, only sufficiently similar).

¶19. Although not determinative, some factors which are relevant to whether charges
in an information are "of the same or similar character" are: (1) whether the charges
are brought under the same statute; (2) whether the charges involve similar victims,
locations, or modes of operation; (3) whether the charged conduct occurred in a
narrow time frame; and (4) whether the charged conduct occurred in a limited
geographical area. See United States v. Edgar (1st Cir. 1996), 82 F.3d 499, 503 (citing
United States v. Taylor (1st Cir. 1995), 54 F.3d 967, 973) (interpreting Rule 8(a), Fed.
R.Crim.P., which is substantively identical to § 46-11-404(1), MCA); United States v.
Acker (4th Cir. 1995), 52 F.3d 509, 514 (citing United States v. DeBordez (8th Cir.
1984), 741 F.2d 182, cert. denied, 469 U.S. 1089, 105 S.Ct. 599, 83 L.Ed.2d 707)
(stating that, under Rule 8(a), Fed.R.Crim.P., offenses may be joined when they are
"identical or strikingly similar in the method of operation and occur over a short
period of time"); and United States v. Chambers (1st Cir. 1992), 964 F.2d 1250, 1251
(stating that the charged offenses were sufficiently similar for joinder under Rule 8
(a), Fed.R.Crim.P., in part, because they all occurred in the greater Boston area).

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¶20. In the instant case, Southern differentiates the counts of sexual intercourse
without consent by pointing out that each victim was raped at a different hour of the
day. Southern also differentiates the modus operandi of the counts of sexual
intercourse without consent by pointing out that a knife was used on three of the
victims but not on the remaining victim. Southern finally points out that, although
three of the victims were raped in their home, one victim was kidnaped and raped at
a location west of Helena and that one of the victims who was raped in her home was
subsequently taken to a location west of Helena and raped a second time.

¶21. Despite these differences, the charges in the Amended Information were
sufficiently similar to be joined in the Amended Information pursuant to § 46-11-404
(1), MCA. The State brought each charge of sexual intercourse without consent
under § 45-5-503, MCA. The victims are all older women. They were raped in the
same limited geographical area-- either in their homes in Helena, at a rural location
west of Helena or both. The perpetrator covered each victim's face with an article of
clothing and demanded money from each victim. Each victim was raped within a
relatively narrow time frame--two and one-half years (April 25, 1994 to November 2,
1996). Finally, each victim described the perpetrator as a white male with short
brown or dark hair. Thus, on the whole, the modus operandi and victims of the rapes
were similar. We conclude that the five counts of sexual intercourse without consent
were of the same or similar character and were therefore properly joined in the
Amended Information pursuant to § 46-11-404(1), MCA.

¶22. Southern also maintains that the two counts of kidnaping are not of the same or
similar character and, therefore, that they were misjoined. Along these same lines,
Southern argues that the charges of burglary and theft were misjoined because they
were not of the same or similar character to the other charges in the Amended
Information.

¶23. However, counts may be joined in an information pursuant to § 46-11-404(1),
MCA, not only if the offenses are of the same or similar character, but also if the
offenses "constitut[e] parts of a common scheme or plan." A common scheme is a
"series of acts or omissions motivated by a purpose to accomplish a single criminal
objective or by a common purpose or plan that results in the repeated commission of
the same offense or that affects the same person or the same persons or the property
of the same person or persons." Section 45-2-101(7), MCA. Thus, joining two charges
is proper in cases in which one charge precipitates the second charge and in cases in

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which the charges are logically linked by motive and where overlapping proof must
be offered. Richards, 274 Mont. at 187, 906 P.2d at 226 (citing State v. Bingman
(1987), 229 Mont. 101, 109, 745 P.2d 342, 347 and State v. Baker (1989), 237 Mont.
140, 144, 773 P.2d 1194, 1197).

¶24. Here, Southern concedes in his brief that there would be overlapping proof
regarding the kidnaping, burglary, and theft charges and the accompanying charges
of sexual intercourse without consent. Thus, the counts of kidnaping, burglary, and
theft were properly joined with the accompanying counts of sexual intercourse
without consent in the Amended Information because overlapping proof would have
been offered to prove the crimes. See Richards, 274 Mont. at 187, 906 P.2d at 226
(citation omitted). Moreover, even if Southern had not conceded this point, the
kidnaping, burglary, and theft charges were properly joined in the Amended
Information pursuant to § 46-11-404(1), MCA, because they were each part of a
"series of acts . . . motivated by a purpose to accomplish a single criminal objective"
and, therefore, parts of a common scheme. Section 45-2-101(7), MCA. Thus, the
counts of kidnaping, burglary, and theft were properly joined with the
accompanying charges of sexual intercourse without consent in the Amended
Information pursuant to § 46-11-404(1), MCA.

¶25. In sum, the five counts of sexual intercourse without consent were properly
joined in the Amended Information pursuant to § 46-11-404(1), MCA, because they
were of the same or similar character. The two counts of kidnaping, count of
burglary, and count of theft were properly joined in the Amended Information
pursuant to § 46-11-404(1), MCA, because they were part of a common scheme and
because overlapping proof would have been required regarding these charges and
the accompanying charges of sexual intercourse without consent. Accordingly, even
though the District Court did not directly address this issue, we hold that all nine
counts in the Amended Information were properly joined.

B.

¶26. Was severing the counts necessary to prevent unfair prejudice to Southern?

¶27. Southern argues that severing the counts by victim (resulting in four separate
trials) was necessary to prevent unfair prejudice. The State, in contrast, argues that
Southern did not meet his burden of proving that the prejudice was so great that he

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was denied a fair trial.

¶28. Section 46-13-211(1), MCA, provides in pertinent part:

If it appears that a defendant . . . is prejudiced by a joinder of charges . . . in an . . .
information, . . . the court may order separate trials, . . . or provide whatever other relief
justice requires. This statute requires trial courts to balance the possibility of prejudice to a
criminal defendant against the judicial economy resulting from a joint trial. Martin, 279
Mont. at 191, 926 P.2d at 1384 (citing Richards, 274 Mont. at 188, 906 P.2d 222, 226-27).
This balancing is within the trial court's discretion; thus, we will not substitute our
judgment for that of the trial court unless the trial court abused its discretion. Martin, 279
Mont. at 191, 926 P.2d at 1384 (citing Richards, 906 P.2d at 227).

¶29. It is not sufficient for a criminal defendant to prove that he will face some
prejudice as a result of a joint trial or that he stands a better chance of acquittal if
separate trials are held. Martin, 279 Mont. at 192, 926 P.2d at 1384 (citing Richards,
906 P.2d at 227). Rather, a criminal defendant must prove that the prejudice is so
great as to prevent a fair trial. Martin, 279 Mont. at 192, 926 P.2d at 1384-85 (citing
Richards, 906 P.2d at 227).

¶30. Three types of prejudice may result from consolidating charges. Martin, 279
Mont. at 192, 926 P.2d at 1385 (citing Richards, 906 P.2d at 227). First, a jury may
consider the criminal defendant facing multiple charges a "bad man" and
accumulate evidence until it finds the defendant guilty of something. Second, a jury
may use proof of guilt on one count to convict the defendant of a second count even
though that proof would be inadmissible at a separate trial on the second count.
Third, the defendant may be prejudiced if he or she wishes to testify on one charge
but not on another. Martin, 279 Mont. at 192, 926 P.2d at 1385 (citing Richards, 906
P.2d at 227). See also State v. Orsborn (1976), 170 Mont. 480, 489, 555 P.2d 509, 514-
15 (citations omitted).

1. Accumulation of Evidence

¶31. Southern argues that the DNA evidence on one count of sexual intercourse
without consent (Count IX), which showed that DNA from one victim's vaginal swab
matched Southern's genetic profile to a high degree of certainty, caused the jury to
decide that he was a bad person and, consequently, to convict him of the other counts

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even though there was no DNA match on those counts.

¶32. Whatever the cumulative effect of this evidence was on the multiple charges,
however, we conclude that it was tenuous, at best, and, by itself, insufficient to
warrant severance. See Martin, 279 Mont. at 192, 926 P.2d at 1385. Moreover, as is
discussed in greater detail in Issue 4, there was sufficient evidence for a rational jury
to find that Southern committed each offense charged in the Amended Information.
Consequently, we hold that the prejudice which arose from the cumulative evidence
at Southern's trial was not so great that it prevented a fair trial.

2. Use of Inadmissible Evidence

¶33. Southern claims that he was unfairly prejudiced because the joint trial caused
the jury to use evidence of guilt on some counts to convict him of other counts even
though the evidence which the jury considered would have been inadmissible at a
separate trial on the other counts. More specifically, Southern argues that the
evidence relating to each victim would have been inadmissible at trials relating to the
other victims under Rule 404(b), M.R.Evid., and our decision in State v. Matt (1991),
249 Mont. 136, 814 P.2d 52. The State, however, asserts that, even if there had been
four trials, the evidence of the crimes committed against the other victims would
have been admissible in each trial.

¶34. In Matt, we modified the requirements for admitting evidence of other crimes,
wrongs or acts that we had set out in State v. Just (1979), 184 Mont. 262, 602 P.2d
957. Based on Rules 403 and 404(b), M.R.Evid., we established the following criteria
to determine the admissibility of other crimes, wrongs or acts:

(1) The other crimes, wrongs or acts must be similar;

(2) The other crimes, wrongs or acts must not be too remote in time;

(3) The evidence of other crimes, wrongs or acts is not admissible to prove the character
of a person in order to show that they acted in conformity with such character; but may be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident;

(4) Although relevant, evidence may be excluded if its probative value is substantially

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outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the
jury, considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.

Matt, 249 Mont. at 142, 814 P.2d at 56. These criteria have come to be known as the Modified Just Rule.(1)

¶35. Southern concedes that the evidence of the other crimes was not too remote in
time to be admissible and that it was admissible under the third part of the Modified
Just Rule. Nevertheless, Southern asserts that the evidence of the other crimes would
have been inadmissible at separate trials because the other crimes were not similar
and because the danger of unfair prejudice substantially outweighed the probative
value of the other crimes evidence. We will address these issues in turn.

¶36. Southern first argues that the other crimes were not similar and, therefore, that
the evidence of other crimes would not have been admissible at separate trials.
However, as we stated in Issue I. A., although the crimes against each victim were not
identical, they were sufficiently similar to be joined in the Amended Information
pursuant to § 46-11-404(1), MCA. Likewise, and for the same reasons which we
outlined in Issue I. A., the four incidents at issue in the instant case are sufficiently
similar to satisfy the first part of the Modified Just Rule, and thus would have been
admissible at separate trials on this basis.

¶37. Southern next argues that the prejudicial effect of the other crimes evidence
substantially outweighed its probative value. Therefore, Southern claims that the
evidence of other crimes would not have been admissible in separate trials.

¶38. It is inevitable that evidence of other crimes, wrongs or acts will have some
prejudicial effect on a criminal defendant. State v. Whitlow (1997), 285 Mont. 430,
439, 949 P.2d 239, 245 (citing State v. Brooks (1993), 857 P.2d 734, 737).
Consequently, relevant evidence will be inadmissible under the fourth part of the
Modified Just Rule only when "its probity is substantially outweighed by the danger
of unfair prejudice." Martin, 279 Mont. at 195-96, 926 P.2d at 1387 (citing Matt, 814
P.2d at 56).

¶39. The prejudicial effect of relevant evidence will substantially outweigh the
probative value of the evidence when the evidence will prompt the jury to decide the
case on an improper basis. State v. Heuther (1997), 284 Mont. 259, 265, 943 P.2d

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1291, 1295 (citation omitted). Thus, evidence is inadmissable under the fourth part of
the Modified Just Rule if it arouses the jury's sympathy for one side without regard
to its probative value, if it confuses or misleads the jury, or if it distracts the jury
from the main issues in the case. Huether, 284 Mont. at 265, 943 P.2d at 1295
(citation omitted).

¶40. In the instant case, although the evidence of the other crimes would have been
prejudicial to Southern, it was not the type of evidence which would arouse the jury's
sympathy nor would it have confused, misled, or distracted the jury from the main
issues in the case. Thus, we hold that its probative value was not substantially
outweighed by the danger of unfair prejudice.

¶41. Moreover, prejudice arising from use of inadmissible evidence will not be found
where the evidence is simple and distinct. Martin, 279 Mont. at 193, 926 P.2d at 1385
(citing Richards, 906 P.2d at 227). The policy underlying this rule is that there is no
reason to assume the jury will be confused and cannot keep the relevant evidence
separate when the charges are few and the evidence straight forward. Martin, 279
Mont. at 193, 926 P.2d at 1385 (citing State v. Campbell (1980), 615 P.2d 190, 199).

¶42. Here, although the State charged Southern with nine counts, the evidence
pertaining to each count was simple, distinct and straight forward. There were four
discrete victims, specific crimes committed against each victim, and the evidence
clearly applied only to the specific crimes committed against each victim. Thus, after
reviewing the record, we conclude that there is nothing that suggests that the jury
could not (and did not) keep the relevant evidence separate. Moreover, the District
Court instructed the jury that each charged count was a distinct offense and that the
jury was to decide each count separately. Consequently, since the evidence of the
other crimes, wrongs or acts would have been admissible at separate trials and since
the evidence was simple and distinct, we hold that Southern did not establish that the
jury used evidence of guilt on one charge to convict him of other charges on his
theory that the evidence would have been inadmissible in the trials on the other
charges.

3. Self-Incrimination

¶43. Since Southern testified on all counts at the trial on this matter, he concedes that
he was not unfairly prejudiced in this regard. Accordingly, we will not address this

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type of prejudice.

¶44. In sum, even though Southern may have faced some prejudice as a result of the
joint trial, he did not prove that the prejudice was so great that it prevented a fair
trial. Accordingly, we affirm the District Court's order denying Southern's motion to
sever the counts into four trials pursuant to § 46-13-211(1), MCA.

Issue 2.

¶45. Did the District Court err in denying Southern's motion in limine to preclude the
State from offering microscopic hair comparison evidence at trial?

¶46. Before the trial, Southern filed a motion in limine to exclude the testimony of
Alice Ammen (Ammen), a forensic scientist at the Montana State Crime Lab.
Ammen testified at the trial that she microscopically compared Southern's hair
sample to hairs from the rape scenes and that the hair from the rape scenes was
either "similar to" or "consistent with" Southern's hair sample. Southern contends
that Ammen's testimony was inadmissible under Rule 702, M.R.Evid., because it did
not satisfy the factors for the reliability of expert testimony which the United States
Supreme Court set out in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993), 509 U.
S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469, and which this Court adopted in State v.
Moore (1994), 268 Mont. 20, 885 P.2d 457. In support of his argument, Southern cites
Williamson v. Reynolds (E.D.Okl. 1995), 904 F.Supp. 1529 and McGrew v. State (Ind.
App. 1996), 673 N.E.2d 787, wherein the courts ruled that microscopic hair
comparison testimony was inadmissible under Daubert because it was unreliable.

¶47. The State responds that, in Montana, the Daubert factors only apply to the
admissibility of novel scientific evidence and, since microscopic hair comparison is
not novel scientific evidence, that Southern's reliance on the Daubert factors is
misplaced. Thus, the State concludes that Ammen's testimony was admissible under
Rule 702, M.R.Evid.

¶48. The admissibility of evidence is left to the discretion of the district court judge.
State v. Lancione, 1998 MT 84, ¶ 20, 288 Mont. 228, ¶ 20, 956 P.2d 1358, ¶ 20 (citing
State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263). Thus, this Court
reviews a district court's evidentiary ruling, including a court's ruling on a motion in

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limine, to determine whether the court abused its discretion. Lancione, ¶ 20 (citing
Gollehon, 262 Mont. at 301, 864 P.2d at 1263). See also Hulse v. State, Dept. of Justice,
1998 MT 108, ¶ 15, 289 Mont. 1, ¶ 15, 961 P.2d 75, ¶ 15 (holding that this Court
reviews a district court's ruling on a motion in limine for abuse of discretion).
Montana's district courts are "vested with great latitude in ruling on the
admissibility of expert testimony." Durbin v. Ross (1996), 276 Mont. 463, 477, 916
P.2d 758, 767 (citing Cottrell v. Burlington Northern R. Co. (1993), 261 Mont. 296,
301, 863 P.2d 381, 384 and Jim's Excavating Service v. HKM Assoc. (1994), 265 Mont.
494, 509, 878 P.2d 248, 257).

¶49. Rule 702, M.R.Evid., which is identical to its federal counterpart, governs the
admissibility of expert testimony and provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify thereto in the form of an
opinion or otherwise. We have stated that "[t]he test for admissibility of expert testimony
is whether the matter is sufficiently beyond common experience that the opinion of the
expert will assist the trier of fact to understand the evidence or to determine a fact in
issue." Hulse, ¶ 48 (quoting Durbin, 276 Mont. at 469, 916 P.2d at 762). See also Durbin,
276 Mont. at 477, 916 P.2d at 767 (citing Newville v. State, Dept. of Family Services
(1994), 267 Mont. 237, 257, 883 P.2d 793, 805) (stating that "[e]xpert testimony is
required in areas not within the range of ordinary training or intelligence."). Hence, in
determining whether expert testimony is admissible under Rule 702, M.R.Evid., the trial
court must initially decide whether the subject matter of the testimony is one that requires
expert testimony. See Durbin, 276 Mont. at 477, 916 P.2d at 767. The trial court must then
decide whether the particular witness is qualified as an expert to give an opinion in the
particular area on which he or she proposes to testify. See Durbin, 276 Mont. at 477, 916
P.2d at 767. Thus, Rule 702, M.R.Evid., "implicitly requires a foundation showing that the
expert has special training or education and adequate knowledge on which to base an
opinion." Durbin, 276 Mont. at 477-78, 916 P.2d at 767 (quoting Cottrell, 863 P.2d 381 at
384).

¶50. In Barmeyer v. Montana Power Co. (1983), 202 Mont. 185, 657 P.2d 594, this
Court noted that before Rule 702, M.R.Evid., was adopted, courts required a
foundation showing that the proffered expert testimony involved a field of science
which had gained "general acceptance" by the relevant scientific community.

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Barmeyer, 202 Mont. at 193, 657 P.2d at 598 (citing Frye v. United States (D.C. Cir.
1923), 293 F. 1013). However, this Court pointed out that there was a trend to
liberalize the admission of expert testimony, that the general acceptance test had
been eroded, and that neither Rule 702, M.R.Evid., nor the Commission Comments
to the rule mentioned the general acceptance test. Barmeyer, 202 Mont. at 193, 657
P.2d at 598 (citation omitted). Therefore, this Court held that the general acceptance
test was not "in conformity with the spirit of the new rules of evidence." Barmeyer,
202 Mont. at 193, 657 P.2d at 598. This Court then explained that "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." Barmeyer, 202
Mont. at 193-94, 657 P.2d at 598 (quoting United States v. Baller (4th Cir. 1975), 519
F.2d 463, 466, cert. denied 423 U.S. 1019, 96 S.Ct. 456, 46 L.Ed.2d 391).

¶51. In Daubert, the United States Supreme Court considered the standard for
admitting expert scientific testimony in a federal trial. The Court ruled that the
general acceptance test was absent from, and incompatible with, the Federal Rules of
Evidence. Daubert, 509 U.S. at 589, 113 S.Ct. at 2794. Therefore, the Court held that
the general acceptance test was not the exclusive test for admitting expert scientific
testimony in a federal trial. Daubert, 509 U.S. at 589, 113 S.Ct. at 2794. Instead, the
Supreme Court concluded that Rule 702, Fed.R.Evid., requires a trial court which is
faced with a proffer of expert scientific testimony to determine whether the expert is
proposing to testify to (1) scientific knowledge that (2) will assist that trier of fact to
understand or determine a fact in issue. Daubert, 509 U.S. at 592, 113 S.Ct. at 2796.
The Court also noted that Rule 702, Fed.R.Evid., requires trial courts to act as a
gatekeeper and screen potential expert scientific testimony to ensure that it is
relevant to the case and reliable. Daubert, 509 U.S. at 589-91, 113 S.Ct. at 2795.

¶52. The Court set forth the following non-determinative factors to guide trial courts
assessing the reliability of proffered scientific expert testimony: (a) whether the
theory or technique can be and has been tested; (b) whether the theory or technique
has been subjected to peer review and publication; (c) whether the theory or
technique has a known or potential rate of error and whether there are standards
controlling the technique's operation; and (d) whether the theory or technique has
been generally accepted or rejected in the particular scientific field. Daubert, 509 U.S.
at 593-94, 113 S.Ct. at 2796-97.

¶53. The Court recently expanded Daubert's general holding by concluding that the

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trial court's gatekeeping obligation under Rule 702, Fed.L.Evid., applies not only to
testimony based on scientific knowledge but also to testimony based on technical and
other specialized knowledge. Kumho Tire Co. v. Carmichael (1999), ___ U.S. ___, ___,
119 S.Ct. 1167, 1175. The Court also concluded that the trial court may consider one
or more of the factors that Daubert outlined for assessing testimony's reliability.
Kumbo Tire, ___ U.S. at ___, 119 S.Ct. at 1175. Even so, the Court emphasized that
the test of reliability is flexible and that Daubert's factors neither necessarily nor
exclusively apply to all experts or in every case. Kumho Tire, ___ U.S. at ___, 119 S.
Ct. at 1175.

¶54. In 1994, this Court adopted the factors for determining the reliability of expert
scientific testimony that the Supreme Court set forth in Daubert and stated that they
are consistent with our holding in Barmeyer concerning the admission of novel
scientific evidence. State v. Moore (1994), 268 Mont. 20, 42, 885 P.2d 457, 470-71. In
Moore, the defendant argued that the district court erred in admitting DNA evidence.
Although the foundation of the testimony of the State's expert witnesses was
somewhat shaky, we concluded that the district court did not err in ruling that the
defendant's objections to the DNA evidence went to the weight of the evidence and
not to the admissibility of the evidence. Moore, 268 Mont. at 42-43, 885 P.2d at 471.

¶55. Two years later, in State v. Cline (1996), 275 Mont. 46, 909 P.2d 1171, the
defendant argued that the district court erred in allowing a FBI fingerprint
technician to testify as to the age of the defendant's fingerprint which was found on
an envelope. We pointed out that fingerprint evidence is not novel scientific evidence
but that the issue before us was whether it was possible to determine the age of a
fingerprint using magnetic powder. Cline, 275 Mont. at 55, 909 P.2d at 1177. Because
we considered the fingerprint aging techniques at issue to be novel scientific
evidence, we applied the Daubert factors to determine whether the technique was
reliable. Cline, 275 Mont. at 56, 909 P.2d at 1178. Even so, we stated that it is certain
that "all scientific expert testimony in not subject to the Daubert standard and the
Daubert test should only be used to determine the admissibility of novel scientific
evidence." Cline, 275 Mont. at 55, 909 P.2d at 1177.

¶56. Thereafter, in Hulse, the petitioner, who appealed from a district court's
decision not to reinstate her driving privileges after they were suspended for failing
to take an alcohol breath test, argued that the results of a Horizontal Gaze
Nystagmus (HGN) test was inadmissible. The petitioner argued that the HGN test is

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a scientific test and that the results of a HGN test are therefore inadmissible unless
the requirements of Daubert are met. She argued that Daubert was not limited to the
admissibility of "novel" scientific evidence and that Barmeyer and Daubert were
inconsistent. We disagreed and reaffirmed our holding in Cline that the Daubert
factors for determining the reliability of expert scientific testimony should be used
only to determine the admissibility of novel scientific evidence. Hulse, ¶ 56 (quoting
Cline, 275 Mont. at 55, 909 P.2d at 1177). Moreover, we held that Barmeyer should
not be limited only to novel scientific evidence. "Rather, our statements in Barmeyer
more broadly referenced the entire trend to liberalize the admission of expert
testimony as it applied to scientific evidence in general." Hulse, ¶ 61. Thus, we
summarized the law concerning the admissibility of scientific expert testimony in
Montana by stating that

a trial court, presented with scientific evidence, novel or not, is encouraged to liberally
construe the rules of evidence so as to admit all relevant expert testimony pursuant to
Barmeyer. Certainly, if a court is presented with an issue concerning the admissibility of
novel scientific evidence, as was the case in both Moore and Cline, the court must apply
the guidelines set forth in Daubert, while adhering to the principle set forth in Barmeyer.
However, if a court is presented with an issue concerning the admissibility of scientific
evidence in general, the court must employ a conventional analysis under Rule 702, M.R.
Evid., while again adhering to the principle set forth in Barmeyer.

Hulse, ¶ 63.

¶57. We then turned to the issue of whether the HGN test is novel scientific evidence.
We noted that law enforcement has used the HGN test for several decades and that
other courts throughout the country had determined that the HGN test was not an
emerging, new, or novel scientific technique. Hulse, ¶ 68 (citations omitted).
Consequently, we concluded that the HGN test is not novel scientific evidence and,
therefore, that a district court did not need to apply the Daubert standards to
determine whether the HGN test was admissible under Rule 702, M.R.Evid. Hulse, ¶
69.

¶58. Even so, since the relationship between alcohol and nystagmus, and the
underlying principle of the HGN test is beyond the range of ordinary training or
intelligence, we held that a district court must conduct a conventional Rule 702, M.R.

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Evid. analysis to determine the admissibility of HGN test results while adhering to
the principle set out in Barmeyer. Hulse ¶ 69. Since the record showed that a
foundation was laid which showed that the arresting officer was trained to
administer the HGN test and that the officer administered the HGN test in
accordance with his training, we held that the officer was qualified to testify as to
both his administration of the HGN test and his evaluation of the petitioner's
performance. Hulse, ¶ 72. Notwithstanding, nothing in the record established that
the officer had either special training, education, or adequate knowledge which
qualified him as an expert to explain the correlation between alcohol consumption
and nystagmus, the underlying scientific basis of the HGN test. Hulse, ¶ 72. Thus, we
concluded that there was insufficient foundation for the admission of evidence
concerning the HGN test. Hulse, ¶ 72.

¶59. In the instant case, we conclude that microscopic hair comparison is not novel
scientific evidence. Our research indicates that this Court has considered at least five
(2)
cases since 1978 wherein a witness has testified on microscopic hair comparison.
Moreover, Ammen testified that comparing hair samples with a microscope "has
been [done] for decades." Therefore, since microscopic hair comparison is not novel
scientific evidence, the District Court did not err in not considering the Daubert
factors to determine whether Ammen's testimony was admissible. See Hulse, ¶ 69.

¶60. Nevertheless, a district court faced with a proffer of microscopic hair
comparison evidence must conduct a conventional Rule 702, M.R.Evid. analysis, and
thus adhere to the principle set out in Barmeyer, to determine whether the
microscopic hair comparison evidence is admissible. See Hulse, ¶ 69. That is, a
district court must determine: (1) whether the subject matter of the testimony is one
that requires expert testimony and (2) whether the putative expert has either special
training or education and has adequate knowledge on which to base an opinion. See
Durbin, 276 Mont. at 477, 916 P.2d at 767.

¶61. In the case at bar, we hold that microscopic hair comparison, like the HGN test,
is beyond the range of ordinary training or intelligence. Consequently, microscopic
hair comparison evidence is a subject on which an expert may testify. See Hulse, ¶
69.

¶62. Having reviewed the record, we also hold that the State established a foundation
which showed that Ammen was qualified to testify on microscopic hair comparison

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and that she had adequate knowledge on which to base an opinion. Ammen testified
at the trial that she had been working with trace evidence (such as hair, fibers, glass,
and paint) for four and one-half years at the Montana State Crime Lab. She stated
that she spends about ninety per cent of her time examining trace evidence. Ammen
also testified that she had taken several training courses at the FBI Academy that
dealt with trace evidence and that she had taken several other courses on forensic
microscopy. Ammen testified that she is a member of two forensic scientist groups
and that she is involved with writing guidelines for trace evidence examination for
one of the groups. Ammen also stated that she had testified in other cases regarding
her examinations of trace evidence and that she had been recognized as an expert
witness in those cases. Ammen also explained how she analyzes hair samples. Finally,
she stated that she had examined hair samples from the crimes scenes at issue in the
instant case, from the victims, and from Southern. Accordingly, we conclude that this
foundation shows that Ammen has special training and education concerning
microscopic hair analysis and that she had adequate knowledge on which to base an
opinion in the instant case.

¶63. In sum, since microscopic hair analysis is not novel scientific evidence, the
District Court did not err in not applying the Daubert factors to determine whether
such analysis was reliable. However, since microscopic hair analysis is a subject
which requires expert testimony and since Ammen has special training and
education and had adequate knowledge on which to base her opinions, the District
Court did not err in admitting Ammen's expert testimony regarding microscopic
hair comparison under Rule 702, M.R.Evid. Accord United States v. Matta-Ballesteros
(9th Cir. 1995), 71 F.3d 754, 766-67 (holding that the defendant's objection to expert
microscopic hair comparison testimony went to the weight, not the admissibility, of
the testimony, and therefore that Rule 702, Fed.R.Evid., did not warrant the
exclusion of such testimony).

¶64. As a final point, the two cases which Southern relies on for the proposition that
microscopic hair comparison evidence is inadmissible under the Daubert factors have
been specifically reversed or overruled on that point. Williamson, 904 F.Supp. 1529
(reversed in part by Williamson v. Ward (10th Cir. 1997), 110 F.3d 1508, 1522-23) and
McGrew, 673 N.E.2d 787 (overruled in part by McGrew v. State (Ind. 1997), 682 N.
E.2d 1289, 1292). Consequently, those cases are not persuasive authority.

¶65. Southern also contends that Ammen's testimony was inadmissible under Rule

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403, M.R.Evid., because its prejudicial effect substantially outweighed its probative
value. Southern maintains that hair comparison evidence is unfairly prejudicial
because it is not possible to determine whether hair comes from a particular person.
Thus, he concludes that the jury may have been misled because the microscopic hair
comparison evidence did not positively identify him. The State counters Southern's
argument that Ammen's testimony was inadmissible under Rule 403, M.R.Evid., by
arguing that positive identification is not the standard for admissibility of
circumstantial evidence.

¶66. Rule 403, M.R.Evid., provides that, "[a]lthough relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury . . ." Probative evidence is
often, if not always, prejudicial to a criminal defendant. See Martin, 279 Mont. at
196, 926 P.2d at 1387. Consequently, mere prejudicial effect does not render evidence
inadmissible; relevant evidence is inadmissible under Rule 403, M.R.Evid., only
when its probative value is substantially outweighed by its unfair prejudicial effect.

¶67. As we noted in Issue I. B., the prejudicial effect of relevant evidence will
substantially outweigh the probative value of the evidence when the evidence will
prompt the jury to decide the case on an improper basis (such as sympathy) or will
confuse, mislead or distract the jury from the main issue in the case. Huether, 284
Mont. at 265, 943 P.2d at 1295 (citation omitted).

¶68. In the instant case, the District Court did not directly address Southern's
argument under Rule 403, M.R.Evid. However, after reviewing the record, we
conclude that the court did not err in admitting Ammen's testimony based on Rule
403 concerns. Ammen's testimony was probative because it linked Southern to the
crime scenes and suggested his involvement in the crimes. See State v. Lantis, 1998
MT 172, ¶ 54, 289 Mont. 480, ¶ 54, 962 P.2d 1169, ¶ 54. Although Ammen's
testimony was undoubtedly prejudicial to Southern, it could not have prompted the
jury to decide the case on an improper basis. Moreover, Ammen clearly explained, in
both direct and cross-examination, that she could not say that the hair from the rape
scenes came from Southern; she could only say that the hairs from the crime scenes
were either "similar to" or "consistent with" Southern's hair sample. Thus,
Ammen's testimony could not have misled or confused the jury nor could it have
distracted the jury from the main issues in the case. Accordingly, after balancing the
probative value of Ammen's testimony against the danger of unfair prejudice,

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confusion of the issues, and misleading the jury, we hold that the admission of this
evidence did not violate Rule 403, M.R.Evid.

Issue 3.

¶69. Did the District Court err in admitting DNA evidence which came from a rape kit
which a nurse sealed and then opened to double check her paperwork?

¶70. Jan Yahner (Yahner), a nurse who collected the samples from one of the victims
for a rape kit, testified at the trial that she placed the samples inside the rape kit and
then sealed the kit. However, Yahner testified that she then broke the seal to double
check that she had placed the proper paperwork in the rape kit. The seal on the rape
kit apparently stated that only the crime lab was to break the seal. Consequently,
Southern objected to the admission of evidence from the rape kit "just for the simple
reason that the proper procedures were not followed in this case by [Yahner]
opening the box." The District Court overruled Southern's objection.

¶71. Southern asserts on appeal that the District Court erred in admitting the DNA
evidence which came from the rape kit because Yahner tampered with the rape kit
after she sealed it for the first time. The State argues that there was no evidence
which shows that Yahner tampered with the samples which she placed inside the
rape kit when she broke the seals to check her paperwork. As such, the State argues
that the rape kit evidence was admissible.

¶72. A criminal defendant seeking to exclude evidence on the grounds that the
evidence was tampered with before the prosecution acquired the evidence has the
burden of proving that someone altered the evidence. See State v. Evans (1991), 247
Mont. 218, 228, 806 P.2d 512, 518 (citing State v. Walton (1986), 222 Mont. 340, 343,
722 P.2d 1145, 1147). See also § 45-2-101(72), MCA (stating that "[t]amper means to
interfere with something improperly, meddle with it, [or] make unwarranted
alterations in its existing condition. . . .").

¶73. In the instant case, Yahner testified that she made no changes to the samples
which she had placed inside the rape kit when she opened the kit to double check her
paperwork. Southern, however, points to the testimony of Julie Long (Long), a
forensic scientist at the Montana State Crime Lab, who agreed that opening a rape

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kit could affect the integrity of the samples inside the kit.

¶74. Notwithstanding, Long also testified that the integrity of the samples would be
unaffected if the rape kit was opened only to check the paperwork inside the kit.
Long explained that the integrity of the samples inside the rape kit would be affected
only if the person who opened the kit "did something with the samples." Long
further explained that, "[j]ust opening the box to put papers in would, in and of
itself, not affect the samples themselves which are inside [the rape kit] and inside
other boxes inside [the rape kit]." Southern did not introduce any evidence which
suggests that Yahner, or anyone else, tampered with the samples inside the rape kit.
Since Southern did not prove that anyone had tampered with the samples inside the
rape kit, the District Court did not err in admitting the evidence which came from
the samples inside the rape kit, including the DNA evidence.

Issue 4.

¶75. Was the evidence sufficient to support Southern's convictions on Counts II
through VIII?

¶76. Southern asserts that there was not sufficient evidence for the jury to find him
guilty on Counts II through VIII. Southern maintains that DNA evidence exonerates
him of one of the counts of sexual intercourse without consent (Count II); that DNA
evidence and fingerprint evidence exonerates him of two other counts of sexual
intercourse without consent and one count of kidnaping (Counts III, IV and V,
respectively); and that, although the evidence when viewed in a light most favorable
to the prosecution places Southern at the crime scenes of the burglary count, of a
count of sexual intercourse without consent, and of a theft count (Counts VI, VII and
VIII, respectively), mere presence at a crime scene is insufficient to find him guilty of
these crimes and that the evidence was too speculative for the jury to convict him of
these crimes.

¶77. The State maintains that neither the DNA evidence nor the fingerprint evidence
excluded Southern as the perpetrator of any of the crimes. The State also maintains
that even though more than presence at a crime scene is necessary to establish
criminal liability, the evidence places Southern with the victim at the time when the
victim was raped and that the only two people at the crime scene at that time was the

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victim and her attacker. Thus, the State asserts that there was sufficient evidence for
the jury to convict Southern on Counts II through VIII.

¶78. This Court reviews the sufficiency of the evidence to sustain a guilty verdict in a
criminal case to determine whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. State v. Johnson, 1998 MT 289, ¶
41, 969 P.2d 925, ¶ 41, 55 St.Rep. 1186, ¶ 41(citing State v. Sattler, 1998 MT 57, ¶ 56,
956 P.2d 54, ¶ 56, 55 St.Rep. 230, ¶ 56). "It is within the province of the finder of fact
to weigh the evidence presented and determine the credibility of the witness; in the
event of conflicting evidence on factual issues, the trier of fact determines which will
prevail." Johnson, ¶ 41 (quoting Sattler, ¶ 55). Thus, "[w]e review the jury's verdict
only to determine whether it is supported by sufficient evidence, not to determine
whether there was evidence to support a different verdict." Johnson, ¶ 41 (quoting
Sattler, ¶ 60).

A

Sufficiency of the Evidence on Count II

¶79. Although Southern admits that the evidence, when viewed in a light most
favorable to the State, is sufficient to sustain a guilty verdict on the charge of
kidnaping (Count I) which occurred on November 2, 1996, he argues that the
evidence was insufficient to sustain his conviction for sexual intercourse without
consent against that victim (Count II) because the only evidence that supports the
conviction was the victim's testimony. In addition, Southern argues that, since this
victim's vaginal swabs contained only female DNA, the victim's credibility as to
whether she was raped is suspect. Moreover, Southern claims that Anita Matthews
(Matthews), a DNA expert, and Jim Streeter (Streeter), a forensic scientist at the
Montana State Crime Lab, testified that the DNA from this victim excluded
Southern as a the perpetrator.

¶80. The testimony of one witness is sufficient to establish a fact. Section 26-1-301,
MCA. See also State v. Ahmed (1996), 278 Mont. 200, 212, 924 P.2d 679, 686, cert.
denied (1997), ___ U.S. ___, 117 S.Ct. 748, 136 L.Ed.2d 686 (citation omitted). Thus,
despite Southern's argument, the victim's testimony was sufficient to establish that
Southern raped her. Moreover, the record shows that there was other corroborating

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evidence, such as Southern's footprints at the crime scene, that, when viewed in a
light most favorable to the prosecution, could have led a rational trier of fact to find
Southern guilty beyond a reasonable doubt.

¶81. In addition, the record shows that neither Matthews nor Streeter testified that
the DNA evidence from this victim's vaginal swab excluded Southern as the
perpetrator. Rather, Matthews testified that the DNA which her company tested was
consistent with the victim's DNA. Matthew's went on to explain that this result did
not mean that no sexual intercourse occurred; it only meant that there was no
cellular material foreign to the victim on the vaginal swab that was submitted for
testing. Matthew's explained that, if sexual intercourse occurred, the assailant either
left no cellular material or that it was left in an area other than the area from which
the vaginal swab was taken. Thus, contrary to Southern's claim, Matthews did not
testify that the DNA evidence from this victim excluded Southern as the assailant.
Similarly, even though Streeter testified that Southern could be excluded as the
source of the DNA which was tested, Streeter did not say that Southern could be
excluded as the assailant. Therefore, the results of the DNA tests did not exclude
Southern as the assailant. These results only determined that Southern was not the
source of the DNA which was tested. Finally, even if the DNA evidence had brought
this victim's credibility into issue, it is the fact finder, in the instant case the jury,
which determines a witness' credibility; this Court will not set aside a jury's
credibility determinations on appeal. Ahmed, 278 Mont. at 212, 924 P.2d at 686
(citations omitted).

¶82. In sum, having reviewed the record, we hold that there was sufficient evidence
for a rational trier of fact to find beyond a reasonable doubt that Southern
committed the offense of sexual intercourse without consent as charged in Count II.

B

Sufficiency of the Evidence on Counts III, IV and V

¶83. Southern next argues that there was insufficient evidence to convict him of the
one count of kidnaping, and the two counts of sexual intercourse without consent
(Counts III, IV and V, respectively), which occurred on June 10, 1996. Southern
contends that DNA evidence and fingerprint evidence excludes him as the assailant.
Southern also points out some inconsistencies in this victim's testimony and thus, in

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effect, attacks her credibility. Southern also contends that, although footprints link
him to the crime scene, this evidence was insufficient to convict him on Counts III, IV
and V because mere presence at the scene of a crime does not establish guilt.

¶84. The victim of the offenses charged in Counts III, IV and V testified that, after
her assailant raped her the first time in her house, he blindfolded her, tied her hands
behind her back, placed her in a car, drove her to her bank and attempted to cash
some checks which were in her checkbook. Deborah Hewitt (Hewitt), a forensic
scientist at the Montana State Crime Lab, testified that she found a latent finger
print on a plastic insert which was inside the victim's checkbook. Nevertheless,
Hewitt testified that the print did not match either the victim or Southern. Southern
points this out and, in effect, argues that the fingerprint exonerates him as the
assailant. Notwithstanding, Hewitt explained that this result did not exonerate
Southern as the assailant; it only meant that the print that she found was not
Southern's print. Thus, the fingerprint on the checkbook insert did not exonerate
Southern.

¶85. The victim of the offenses charged in Counts III, IV and V also testified that the
assailant raped her the first time on a comforter which was on her bed. Matthews,
however, testified that the DNA testing showed that Southern could be excluded as
the contributor of a semen stain which was found on the comforter. Similarly,
Streeter testified that the DNA tests showed that Southern could be excluded as the
person who left the semen stain on the comforter. Southern asserts that this evidence
exonerates him as this victim's assailant.

¶86. However, although the DNA testing showed that Southern did not leave the
semen stain on the comforter, neither Matthews nor Streeter testified that the DNA
results excluded Southern as the assailant. Rather, Matthews and Streeter stated that
it was only possible to exclude Southern as the person who left the semen sample on
the comforter. In sum, despite Southern's argument, neither Matthews nor Streeter's
testimony excluded him as the assailant.

¶87. Moreover, Matthews testified that the DNA from the semen stain was consistent
with the victim's DNA profile and that it was possible that it could have come from
one of the victim's sons. Matthews also stated that the stain could have been left on
the comforter years prior to the attack. In addition, the victim testified that her
grown and married children had stayed in the bedroom when they had come to

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Helena to visit her. Furthermore, the victim's testimony was consistent with the
conclusion that the stain on the comforter did not come from the assailant. In fact,
the victim testified that her assailant had difficulty maintaining an erection and did
not ejaculate. Thus, this evidence supports the State's hypothesis that the semen stain
was left by one of the victim's sons.

¶88. Next, although we agree with Southern that presence at a crime scene is
insufficient, by itself, to prove criminal liability, see State v. Johnston (1994), 267
Mont. 474, 481, 885 P.2d 402, 406 (citing State ex rel. Murphy v. McKinnon (1976),
171 Mont. 120, 125, 556 P.2d 906, 909), the evidence in the instant case not only
placed Southern at the crime scene but also established that he was the assailant
when viewed in a light most favorable to the prosecution. Consequently, we reject
Southern's argument that the evidence only placed him at the crime scene.

¶89. Finally, as we stated above, this Court will not set aside a jury's credibility
determinations on appeal. Ahmed, 278 Mont. at 212, 924 P.2d at 686 (citations
omitted). Thus, we will not address Southern's argument concerning this victim's
credibility.

¶90. In sum, having reviewed the record, we hold that there was sufficient evidence
for a rational trier of fact to find beyond a reasonable doubt that Southern
committed the offenses of kidnaping and sexual intercourse without consent as
charged in Counts III, VI and V.

C

Sufficiency of the Evidence on Counts VI, VII and VIII

¶91. Southern contends that there was not sufficient evidence to support his
convictions for the count of burglary, the count of sexual intercourse without
consent, and the count of theft (Counts VI, VII and VIII, respectively), which
occurred on May 18, 1996. Southern maintains that the only evidence that connects
him to these crimes is circumstantial, and that, although the circumstantial evidence
places him at the crime scene, it does not establish that he committed the crimes. The
State counters that the evidence not only placed Southern at the crime scene, but
placed him there when the only two people present were the assailant and the victim.

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¶92. Circumstantial evidence alone is sufficient to obtain a conviction. Johnson, ¶ 43
(citing State v. Lancione, 1998 MT 84, ¶ 37, 956 P.2d 1358, ¶ 37, 55 St.Rep. 344, ¶ 37).
"Circumstantial evidence must only be of such a quality and quantity as to legally
justify a jury in determining guilt beyond a reasonable doubt, and all facts and
circumstances must be considered collectively." Johnson, ¶ 43 (quoting Lancione, ¶
37 and State v. Weaver (1981), 195 Mont. 481, 495, 637 P.2d 23, 31).

¶93. The evidence against Southern included Hewitt's testimony regarding a pair of
sunglass which the victim knocked off her assailant's face during the attack and
which were subsequently found on the floor of the victim's bedroom. Hewitt found a
footprint left on the lens of the sunglasses which she compared to the sole of a pair of
Southern's shoes. Hewitt determined that the footprint was made by the left sole of
Southern's shoe to the exclusion of all other shoes. In addition, Ammen testified that
pubic hairs found on the bed where the rape occurred were consistent with
Southern's pubic hair sample but inconsistent with the victim's pubic hair sample.

¶94. Notwithstanding, Southern asserts that this evidence only establishes that he
was at the crime scene. As we stated above, presence at a crime scene is insufficient,
by itself, to prove criminal liability. Johnston, 267 Mont. at 481, 885 P.2d at 406
(citation omitted). However, as the State correctly points out, this evidence not only
placed Southern at the scene but also placed him at the crime scene when the only
people there were the victim and her attacker. Consequently, we conclude that even
though the evidence on Counts VI, VII and VII was circumstantial, it was of
sufficient quality and quantity that a reasonable jury could find Southern guilty of
the offenses charged beyond a reasonable doubt. Therefore, having reviewed the
record, we hold that there was sufficient evidence for a rational trier of fact to find
beyond a reasonable doubt that Southern committed the offenses of burglary, sexual
intercourse without consent, and theft as charged in Counts VI, VII and VIII.

Conclusion

¶95. In summary, we hold that the District Court did not err in denying Southern's
motion to sever the counts against him into four separate trials, did not err in
admitting microscopic hair comparison evidence at trial, did not err in admitting
DNA evidence from the rape kit which had been opened so that the nurse could
double check her paperwork, and that there was sufficient evidence for the jury to

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convict Southern on Counts II through VIII. Therefore, we affirm Southern's
convictions.

¶96. Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ J. A. TURNAGE

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

/S/ TERRY N. TRIEWEILER

1. 1 In Matt, we also clarified the procedural protections which Just required. Matt, 249 Mont. at 142-43, 814
P.2d at 56. These procedural protections, however, are not at issue in the instant case.

2. 2 See State v. Bromgard (1993), 261 Mont. 291, 293-94, 862 P.2d 1140, 1141; State v. Kordonowy (1991), 251
Mont. 44, 47, 823 P.2d 854, 856; State v. Coleman (1981), 194 Mont. 428, 447, 633 P.2d 624, 636; State v.
Higley (1980), 190 Mont. 412, 428, 621 P.2d 1043, 1053; and Coleman v. State (1978), 177 Mont. 1, 26-27, 579
P.2d 732, 747. See also Gregory G. Sarno, Annotation, Admissibility and Weight, in Criminal
Case, of Expert or Scientific Evidence Respecting Characteristics and Identification of
Human Hair, 23 A.L.R.4th 1199 (1983).

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