State v. Duffy

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No. 99-054

IN THE SUPREME COURT OF THE STATE OF MONTANA

2000 MT 186

300 Mont. 381

6 P.3d 453

STATE OF MONTANA,

Plaintiff and Respondent,

v.

BERNARD THEODORE DUFFY, JR.,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Stillwater,

The Honorable Maurice Colberg, Judge presiding.

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COUNSEL OF RECORD:

For Appellant:

Penelope Strong, Attorney at Law, Livingston, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Tammy K. Plubell,

Assistant Attorney General, Helena, Montana

Robert Eddleman, Stillwater County Attorney, Columbus, Montana

Submitted on Briefs: February 3, 2000

Decided: July 18, 2000

Filed:

__________________________________________

Clerk

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Justice Terry N. Trieweiler delivered the opinion of the Court.

1. ¶By Information filed in the District Court for the Thirteenth Judicial District in
Stillwater County, the Defendant, Bernard Theodore Duffy, Jr., was charged with
two counts of sexual intercourse without consent and two counts of incest.
Following a jury trial he was found guilty of all four counts. Duffy appeals from his
convictions. We affirm the judgment of the District Court.
2. ¶The following issues are presented for review:
3. ¶1. Did the District Court err when it denied defense counsel the opportunity to
personally review confidential victim records?
4. ¶2. Did a legislative change in the statute of limitations which pertained to the
Defendant's alleged offenses violate the ex post facto provisions of the Montana and
federal constitutions?
5. ¶3. Did the District Court abuse its discretion when it denied Duffy's motions for
mistrial based on prosecutorial misconduct?
6. ¶4. Did the District Court err when it denied Duffy's motions for mistrial based on
trial testimony that the Court had previously excluded in its order in limine?
7. ¶5. Did the District Court err when it denied Duffy's motion to dismiss Counts III
(sexual intercourse without consent) and IV (incest) based on insufficient evidence?
8. ¶6. Do the minimum prison terms found at §§ 45-5-503(3)(a) and -507(4), MCA, as
applied to Duffy, violate his right to equal protection?

FACTUAL BACKGROUND

1. ¶Duffy and Tina Cook had three children together: David, A.M.D., and Sean. When
Duffy and Tina's relationship ended, Duffy married Theresa Fay, Tina's sister. Duffy
and Theresa had two children together: M.M.D. and P.J.D. In 1985, Duffy, Theresa,
and the five children moved from Idaho to Columbus, Montana.
2. ¶At trial, A.M.D. testified that during an evening between January and May 1996,
while Theresa was not present and the other children where sleeping, Duffy asked
her to perform oral sex in exchange for candy. A.M.D. was six years old at the time.
A.M.D.'s testimony regarding the event was:

A. So they went to bed, and I don't remember how he got on the floor, but he laid on the
floor. He was just wearing jeans. He had pulled down his pants and asked me if-if I would

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suck on his penis like a popsicle, and I was confused a little bit.

Q. Did you ask him anything at that time?

A. Yes, I asked him if he was drunk because I thought it was a rather odd question, and he
said he wasn't. I don't know-I don't remember smelling any alcohol or anything like that. I
don't know, but-but before-before he asked me to do that he said that he would give me a
candy bar and, okay, you know, and I got down. I do not recall if I touched it with my
hands. I know that I did put my mouth around it, but my lips did not touch it.

Q. When you say "it"-

A. His penis. And it must have not been-I'm estimating two to five minutes, the whole
incident. I just remember that he zipped up his pants, I believe that I got the candy bar, and
I went to sleep.

Q. Now, specifically, do you remember, was his penis in your mouth?

A. Yes. I wasn't touching it with my lips or my tongue or anything though

.

1. ¶When A.M.D. was eight years old, she moved from Duffy's home to her mother's
home. She told Tina about the sexual incident with Duffy when she was 12, but
refused to report it to the State to protect Duffy. A.M.D. lived with Tina in Colorado
and Boston, Massachusetts until she was 14. She then moved back to Montana
where she lived with Duffy. By then, Duffy and Theresa were divorced.
2. ¶After Duffy and Theresa divorced, M.M.D. lived with Theresa until they had an
argument in 1996. M.M.D. then moved to live with Duffy and his new wife Sherry.
After M.M.D. began living with Duffy and Sherry, she testified the following

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occurred:

A. Nothing unusual happened right away. It was about a couple days, maybe two weeks.
Me and my father were sitting in the living room. And he started talking to me about birth
control, and I told him I wasn't on it, I didn't want to be put on it, nothing like that. Well,
we got into a conversation about him having problems with my stepmom, Sherry, can't get
it up, doesn't want to go to the hospital and get it checked out by a doctor, doesn't want it
outside the house.

Q. Okay. So he-do you remember the specific words that he used when he was describing
this to you?

A. Not all of them. He wanted me to give him a blow job to make sure that it wasn't him
because if it wasn't him, he was going to divorce Sherry because she wasn't doing it or
something like that. I'm not positive.

....

Q. What was your response to that request?

A. It was no to begin with, and I started crying. And he had asked me to ask a friend if
they would do it, and he offered to pay my friend $50 for it, the same as he would a whore.

M.M.D. testified that she asked a friend to perform oral sex for Duffy, but M.M.D.'s friend
refused. M.M.D. testified she then performed oral sex for Duffy, and he gave her $20.

1. ¶Prior to trial Duffy filed a demand for disclosure and sought discovery of the
victims' medical, psychiatric, psychological, and counseling reports. The District
Court denied the motion and reviewed the reports in camera. After its review, the

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court provided Duffy with a redacted copy of one page of the records.
2. ¶Duffy also filed a motion in limine to exclude evidence of alleged wrongful acts,
which the District Court granted. The Court excluded evidence that Duffy allegedly
had sexual contact with A.M.D. when she was 14 years old by placing his hand on
A.M.D.'s leg near her groin.
3. ¶During the trial, however, while the prosecutor was examining M.M.D., she
testified that after she told her brother Sean about performing oral sex with Duffy,
Sean told A.M.D., who then confessed to M.M.D. that she also had similar
experiences with Duffy when she was 6 and 14. M.M.D.'s testimony regarding the
discussion was:

A. [Sean] was upset. He wanted to tell my sister [A.M.D.] immediately. I told him, "No,
it's not supposed to go anywhere. I'm not supposed to tell anybody. I shouldn't have even
told you." After that we went back to the trailer, all four of us, [A.M.D.], Sean, [P.J.D.]
and I. We're sitting in there by ourselves. Sean had brought it up and explained it to [A.M.
D.] while I was there. My sister got upset and said that, "I have no respect for my father
anymore. He did the same thing to me," and that's when I found out about my sister.

Q. Okay. But before that time, you hadn't any idea that he had-there had been any incident
with your father with [A.M.D.]?

A. No, I did not.

Q. How did [A.D.M.]-did she go into any detail about what had happened to her?

A. No, she didn't. I was told that he had sexually abused her when she was 6 and 14.

Duffy objected and the District Court struck the answer. Duffy then moved for a mistrial,
which the Court denied.

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1. ¶Duffy also moved for a mistrial based on three incidents which he characterizes as
prosecutorial misconduct. Finally, Duffy moved to dismiss Counts III (sexual
intercourse without consent) and IV (incest) based on insufficient evidence. The
District Court denied these motions, and Duffy was convicted of all four counts.
Additional facts will be discussed as they are relevant to particular issues.

ISSUE 1

1. ¶Did the District Court err when it denied defense counsel the opportunity to
personally review confidential victim records?
2. ¶We review a district court's conclusions of law to determine if they are correct. In
re J.J.G., 1998 MT 28, ¶ 20, 287 Mont. 313, ¶ 20, 954 P.2d 1120, ¶ 20. We review
evidentiary rulings for an abuse of discretion. State v. Abe, 1998 MT 206, ¶ 44, 290
Mont. 393, ¶ 44, 965 P.2d 882, ¶ 44. We review orders granting or denying
discovery orders for an abuse of discretion. Rocky Mountains Enter., Inc. v. Pierce
Flooring (1997), 286 Mont. 282, 298, 951 P.2d 1326, 1336.
3. ¶During discovery, the prosecution has an obligation to disclose "all material or
information that tends to mitigate or negate the defendant's guilt as to the offense
charged or that would tend to reduce the defendant's potential sentence." Section 46-
15-322, MCA. The role of the prosecutor is special-it is not to act as a zealous
advocate, rather it is to protect the rights of citizens, including citizens accused of
crime. See Rule 3.8, Montana Rules of Professional Responsibility. The defendant's
right to discover exculpatory evidence is derived from the right to confront
witnesses. State v. Reynolds (1990), 243 Mont. 1, 7, 792 P.2d 1111, 1115.
4. ¶Equally important to the defendant's right to discover exculpatory evidence is the
victim's right to protect his or her confidential relations. State v. Donnelly (1990),
244 Mont. 371, 376, 798 P.2d 89, 92. Section 26-1-801, MCA, provides: "[t]here
are particular relations in which it is the policy of the law to encourage confidence
and to preserve it inviolate; therefore, a person cannot be examined as a witness in
the cases enumerated in this part." For example, § 26-1-805, MCA, provides a
doctor-patient privilege, and § 26-1-807, MCA, provides a psychologist-client
privilege.
5. ¶When these competing interests conflict, the district court must balance the
defendant's need for exculpatory evidence against the privacy interest of the victim.
Donnelly, 244 Mont. at 376, 798 P.2d at 92. To balance the relative interests of the
defendant and the victim, the district court should review the confidential records in
camera. For example, in Donnelly, we held:

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The District Court reviewed the requested psychological records in camera. After in
camera inspection the District Court found that the information was not exculpatory nor
necessary for the preparation of a defense. Pursuant to this finding the District Court ruled
that the requested information was privileged since the testimonial privileges protecting
medical and psychological records outweigh the defendant's limited right to such
information. This in camera inspection by the District Court suffices to protect the
confrontation rights of the defendant. Due to the privileged status of the medical and
psychological records requested by defendant, we hold that defense counsel's right to
review the medical and psychological records of the victim in an incest case is outweighed
by the child's right to confidentiality under the statutes.

Donnelly, 244 Mont. at 376-77, 798 P.2d at 92. If confidential information is not exculpatory or
necessary for the preparation of the defense, defense counsel's right to review the information is
outweighed by the victim's right to confidentiality. State v. Biehle (1992), 251 Mont. 257, 261, 824 P.2d
268, 271.

1. ¶Duffy contends that Montana's in camera procedure is unfair because, while the
prosecutor and the judge are permitted to view the victims confidential records, the
defendant's counsel is denied access and review by a judge is no substitute for
review by the defendant's advocate. Duffy suggests that we adopt the procedure
used in Massachusetts, which permits the defendant's attorney to review the victim's
confidential records. In Commonwealth v. Stockhammer (Mass. 1991), 570 N.E.2d
992, 1001-02, the Massachusetts Supreme Court held that in camera review of
privileged documents by the trial judge confused the roles of trial judge and defense
counsel and violated Article 12 of the Massachusetts Declaration of Rights. While
we concede that in camera review by the court is not the equivalent of scrutiny by
the defendant's attorney, we conclude that it is a reasonable compromise which
considers the interests of both the defendant and the victim, and therefore decline to
adopt the Massachusetts' approach.
2. ¶To allow defense counsel general access to a victim's confidential records could
adversely effect the state's interest in uncovering and treating abuse. See
Pennsylvania v. Ritchie (1986), 480 U.S. 39, 60, 107 S. Ct. 989, 1003. In Ritchie,
the Supreme Court stated:

Child abuse is one of the most difficult crimes to detect and prosecute, in large part
because there often are no witnesses except the victim. A child's feelings of vulnerability

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and guilt and his or her unwillingness to come forward are particularly acute when the
abuser is a parent. It therefore is essential that the child have a . . . person to whom he may
turn, and to do so with the assurance of confidentiality.

480 U.S. at 60, 107 S. Ct. at 1003. The best way to balance the accused's need for
exculpatory evidence against the privacy interest of the victim is to have the district court
review the confidential records in camera. See Donnelly, 244 Mont. at 376, 798 P.2d at 92.

1. ¶In this case, the District Court reviewed a binder containing seven confidential
reports. Many of the documents were handwritten notes from mental health
professionals, who were involved in the treatment of A.M.D. and M.M.D.
Following its in camera review, the District Court ordered a redacted copy of one
page disclosed to defense counsel. We conclude that the District Court did not err
when it followed this procedure.

ISSUE 2

1. ¶Did a legislative change in the statute of limitations which pertained to the
Defendant's alleged offenses violate the ex post facto provisions of the Montana and
federal constitutions?
2. ¶The District Court's conclusion that § 45-1-205(1)(b), MCA (1989), applied to
Duffy's case is a conclusion of law. We review a district court's conclusion of law to
determine if it is correct. In re J.J.G., 1998 MT 28, ¶ 20, 287 Mont. 313, ¶ 20, 954
P.2d 1120, ¶ 20.
3. ¶The District Court found that Duffy was alleged to have committed the offense of
sexual intercourse without consent and incest against A.M.D. on June 3, 1986. At
the time, the applicable statute of limitations was § 45-1-205(1)(b), MCA (1985),
which provided:

A prosecution under 45-5-502 through 45-5-505, 45-5-507, or 45-5-625 may be
commenced within 5 years after the offense was committed if the victim was less than 16
years old at the time the offense occurred.

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In 1989, § 45-1-205(1)(b), MCA, was amended to provide:

A prosecution under 45-5-502 through 45-5-505, 45-5-507, 45-5-625, or 45-5-627 may be
commenced within 5 years after the victim reaches the age of 18 if the victim was less
than 18 years old at the time that the offense occurred.

(Emphasis added.) If the statute of limitations contained in § 45-1-205(1)(b), MCA
(1985), was not amended in 1989, it would have barred prosecution of Duffy by June 3,
1991. Duffy was charged with the offenses against A.M.D. on March 11, 1997. On August
1, 1997, Duffy moved to dismiss Counts III and IV. The District Court denied Duffy's
motion.

1. ¶Duffy contends that at the time he was charged on March 11, 1997, the 1985
statute of limitation had expired, and that to apply the 1989 statute of limitation is an
unlawful application of an ex post facto law. The State responds that the statute of
limitation was merely tolled in 1989; that the change was merely procedural; and,
therefore does not meet the definition of ex post facto legislation.
2. ¶Article I, section 10, of the United States Constitution prohibits the states from
passing ex post facto laws. California Dept. of Corrections v. Morales (1995), 514
U.S. 499, 504, 115 S. Ct. 1597, 1601. Article II, section 31, of the Montana
Constitution also prohibits the passage of ex post facto laws. In re the Matter of
Young, 1999 MT 195, ¶ 14, 295 Mont. 394, ¶ 14, 983 P.2d 985, ¶ 14. In Morales,
the United States Supreme Court stated:

In Collins v. Youngblood, 497 U.S. 37, 41, 110 S. Ct. 2715, 2718, 111 L. Ed. 2d 30
(1990), we reaffirmed that the Ex Post Facto Clause incorporated "a term of art with an
established meaning at the time of the framing of the Constitution." In accordance with
this original understanding, we have held that the Clause is aimed at laws that
"retroactively alter the definition of crimes or increase the punishment for criminal acts."

Morales, 514 U.S. at 504, 115 S. Ct. at 1601. We use a two-part test to determine whether a statute
violates the ban on ex post facto laws: (1) the law must be retrospective, and (2) it must disadvantage
the offender affected by it. State v. Leistiko (1992), 256 Mont. 32, 36-37, 844 P.2d 97, 100.

1. ¶With respect to the first part of the Leistiko test, the District Court concluded that,

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as applied to Duffy, § 45-1-205(1)(b), MCA [1989], was retrospective because it
applied to conduct that occurred before it was enacted. The District Court's
conclusion was correct. In Matter of Young, ¶ 15, we held that the statute in question
was retrospective because it was not in effect at the time the offense was charged.
2. ¶However, the District Court held that Duffy failed to satisfy the second part of the
Leistiko test because "section 45-1-205(1)(b), MCA (1989), does not increase the
punishment from what it might have been in 1986; it merely expands the time in
which that punishment might be imposed." This conclusion is also correct. Duffy is
not disadvantaged in the constitutional sense by the retroactive application of § 45-1-
205(1)(b), MCA (1989), because the statute did not alter the definition of or the
punishment for the crimes with which Duffy was charged. The conduct of which he
was accused was illegal and punishable both before and after the statute of
limitation was extended. In U.S. v. Marrow (5th Cir. 1999),177 F.3d 272, 294, the
circuit court of appeals reviewed a situation similar to Duffy's and held that
applying a revised ten-year statute of limitation for bank fraud prosecution was
proper and did not violate the ex post facto clause because the initial five-year
statute of limitations had not run when the revised ten-year limitations period was
enacted, even though the defendant was not indicted within five years of the
relevant conduct.
3. ¶In this case, § 45-1-205, MCA (1985), was amended before the original statute of
limitations applicable to Duffy's conduct expired. It was a procedural change which
extended the time within which Duffy could be prosecuted without redefining his
offense or changing the punishment for that offense. Therefore, the District Court's
application of the statute of limitations contained in § 45-1-205(1)(b), MCA (1989),
did not violate the ex post facto provisions of the Montana and federal constitutions.

ISSUE 3

1. ¶Did the District Court abuse its discretion when it denied Duffy's motions for
mistrial based on prosecutorial misconduct?
2. ¶We review a district court's ruling on a motion for mistrial to determine whether
the court abused its discretion. State v. Partin (1997), 287 Mont. 12, 17, 951 P.2d
1002, 1005.
3. ¶ Before there can be an abuse of discretion, the defendant first must show that the
prosecutor engaged in misconduct. Prosecutorial misconduct is determined by
reference to established norms of professional conduct. See Everroad v. Indiana
(1991), 571 N.E.2d 1240, 1244. Secondly, the defendant must show that the alleged

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prosecutorial misconduct violated his or her substantial rights. State v. Soraich,
1999 MT 87, ¶ 20, 294 Mont. 175, ¶ 20, 979 P.2d 206, ¶ 20. We will not presume
prejudice from charges of prosecutorial misconduct. Soraich, ¶ 20.
4. ¶Duffy alleges three incidents of prosecutorial misconduct. First, Duffy contends
that in her initial statement to the prosecutor, A.M.D. said that the assault occurred
in Idaho. Duffy suggests that the prosecutor improperly instructed A.M.D. that the
assault occurred in Montana thereby avoiding Duffy's challenge to Montana's
jurisdiction over the offense. Duffy directs us to the following testimony:

Q. Okay. And on the first statement that you gave to, I believe, a social worker in
February of 1997 out in Boston, you told her it happened in Challis, Idaho, didn't you?

A. Yes.

....

Q. And when you discussed it with Mr. Eddleman [the prosecutor], he told you that he
thought it was in Montana, didn't he?

A. No, when I spoke to Theresa.

Q. Okay. Do you deny that Mr. Eddleman-that you made such a statement that he told you
he thought it was in Montana?

A. No, no, but Theresa had told me. I don't know who told me first. I've spoken to both of
them.

Q. Do you have any recollection-you have recollection of talking to Mr. Eddleman,
correct?

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A. Yes.

Q. Okay. And again, you don't have a recollection of whether or not he told you if it was
in Montana?

A. Yeah, he told me it was here.

Q. In fact, he said-he said, "He would figure out where I was living." That's what you told
me when I interviewed you and asked you about that didn't you?

A. Yes.

Q. And then did he suggest to you that you talk to your Aunt Theresa Fay?

A. Yes.

Q. Okay. And then you had a conversation with Theresa Fay about where you were living,
right?

A. Yes.

Q. And, in fact, she described the trailer that you lived in in Montana to you didn't you
[sic]?

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A. I-I described it first and she told me that it was in Columbus.

1. ¶The State contends it was proper for the prosecutor to discover where A.M.D. lived
at the time of the alleged assault and share independent evidence of that location
with her.
2. ¶In its Amended Information, the State alleged that Duffy abused A.M.D. between
January and May 1986. The prosecutor had documentary evidence indicating that
Duffy, Theresa, and A.M.D. lived in Montana as early as September 9, 1985.
Further, A.M.D. testified that after she described the trailer home, Theresa told her
the trailer was located in Columbus, Montana. The prosecutor was not prohibited
from discovering facts to aid A.M.D.'s recollection of where the incident occurred.
We conclude that doing so was not prosecutorial misconduct.
3. ¶Duffy also asserts that the prosecutor committed misconduct when the prosecutor
questioned Officer Danny Ames about a telephone call Ames made to Duffy while
Duffy was living in Colorado. Duffy points to the following testimony:

Q. What did he [Duffy] tell you in the conversation?

A. We talked about the complaint being filed [against Duffy]. He was aware of the
complaint. I advised him that I wanted to get his side of the story on the complaint and
that he needed to contact Detective Dugan [a Colorado detective], that I had made
arrangements with him.

Q. What did the defendant say he would do?

A. The defendant told me that he would contact Detective Dugan. I gave him his name, his
address, his phone numbers, his work hours, and he was going to do that.

Duffy contends that this testimony was a violation of his Fifth Amendment right to remain
silent and a violation of the prosecutor's obligation pursuant to the omnibus discovery

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order since the prosecutor did not disclose Duffy's conversation with Ames. The State
responds that even if the prosecutor engaged in misconduct, Duffy was not prejudiced
because nothing further was said about what Duffy did or did not do.

1. ¶After Duffy objected to the above testimony, the District Court instructed the jury
to disregard any testimony regarding Ames' conversation with Duffy. The District
Court also refused to give the State's flight instruction which was the basis for the
line of inquiry. We conclude that Duffy's substantial rights were not violated by the
testimony given by Ames.
2. ¶ Duffy claims that the third incident of misconduct occurred when the prosecutor
elicited testimony from A.M.D. regarding her desire to see Duffy convicted, and
then later reiterated that testimony during his rebuttal argument. Duffy also asserts
that the prosecutor improperly argued that the Duffy family had been "ripped apart."
The State responds that Duffy opened the door for A.M.D.'s testimony, and that the
prosecutor's statements made during rebuttal were not misconduct.
3. ¶During cross examination of A.M.D., defense counsel asked, "[y]ou want to see
your dad convicted here, don't you?" A.M.D. responded, "yes." During redirect the
following question was asked and the following answer was given:

Q. Finally, Ms. Strong [defense counsel] asked you whether or not you wanted to see your
father, here today convicted. Can you give us an explanation why?

....

A. Sure. I don't want it to happen to anybody else, basically, and it's not fair for him to not
go away for all this stuff.

During the State's rebuttal argument, the prosecutor made the following remarks:

[I]n answer to their question of why she thought he should be convicted, it wasn't that she
wanted revenge, it wasn't that she hated her father now, it was because she couldn't let it
happen to somebody else.

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Imagine what she had to feel, knowing that because she did not disclose [it] it happened to
her sister too. Imagine what it would felt like to know that your sister was abused because
you hadn't gone to the authorities, and maybe you can feel some of the pain she felt as she
sat at that stand and testified.

1. ¶A district court has broad discretion to determine whether evidence is relevant and
admissible. State v. Berger, 1998 MT 170, ¶ 39, 290 Mont. 78, ¶ 39, 964 P.2d 725, ¶
39. Evidence is relevant if it has value, as determined by logic and experience, in
proving the proposition for which it is offered. Berger, ¶ 39. When one party cross-
examines a witness regarding an event, the witness may be re-examined for the
purpose of elaborating on the event in order to explain what is already in evidence.
Berger, ¶41. During closing argument, an attorney may argue and draw reasonable
inferences from evidence so long as there are facts to support such statements. State
v. Bashor (1980), 188 Mont. 397, 417, 614 P.2d 470, 481.
2. ¶In this case, after defense counsel asked A.M.D. if she wanted Duffy convicted, the
prosecutor was free to re-examine A.M.D. for the purpose of discovering A.M.D.'s
motive. When A.M.D. stated, "I don't want it to happen to anybody else, basically,
and it's not fair for him to not go away for all this stuff," she was explaining why she
had answered "yes" to defense counsel's question: "[y]ou want to see your dad
convicted here, don't you?" The prosecutor's question was proper. Further, it was
reasonable to infer that the prosecutor's statements during rebuttal argument were
based on A.M.D.'s testimony. Based on the facts in this case, neither was it
unreasonable to infer that the family's relations had been severely strained.
3. ¶We conclude that the District Court did not abuse its discretion when it denied
Duffy's motions for mistrial based on prosecutorial misconduct.

ISSUE 4

1. ¶Did the District Court err when it denied Duffy's motion for mistrial based on trial
testimony that the court had previously excluded in its order in limine?
2. ¶We review a district court's denial of a motion for mistrial to determine whether the
district court abused its discretion. State v. Partin (1997), 287 Mont. 12, 17-18, 951
P.2d 1002, 1005. Our analysis takes into consideration whether there is a reasonable
possibility that inadmissable evidence contributed to the conviction. Partin, 287

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Mont. at 18, 951 P.2d at 1006. "In determining whether a prohibited statement
contributed to a conviction, the strength of the evidence against the defendant-
together with the prejudicial effect of the testimony and whether a cautionary jury
instruction could cure any prejudice-must be considered." Partin, 287 Mont. at 18,
951 P.2d at 1006.
3. ¶In this case, both of Duffy's daughters, A.M.D. and M.M.D., testified that Duffy
sexually abused them. While M.M.D. testified that she discovered that Duffy had
sexually abused A.M.D., when A.M.D. was 6 and 14, she did not testify regarding
any facts in support of that conclusion. Her testimony was essentially void of
context. Additionally, following Duffy's objection, the District Court immediately
struck the objectionable part of the testimony. We conclude that M.M.D.'s
objectionable testimony was not prejudicial. Therefore, we conclude that the District
Court did not err when it denied Duffy's motion for mistrial based on trial testimony
that the Court had previously excluded in its order in limine.

ISSUE 5

1. ¶Did the District Court err when it denied Duffy's motion to dismiss Counts III and
IV based on insufficient evidence?
2. ¶We review the sufficiency of the evidence to determine whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.
State v. Medrano (1997), 285 Mont. 69, 73, 945 P.2d 937, 939.
3. ¶Both offenses, sexual intercourse without consent, § 45-5-503, MCA, and incest,
§ 45-5-507, MCA, include the element of sexual intercourse. "'Sexual intercourse'
means penetration of the vulva, anus, or mouth of one person by the penis of another
person . . . ." Section 45-2-101(67)(a), MCA. Section 45-2-101(67)(b) provides: "[f]
or purposes of subsection (67)(a), any penetration, however slight, is sufficient."
4. ¶Duffy contends that since A.M.D. testified that she did not touch Duffy's penis
with her lips, tongue, or mouth, there was insufficient evidence to convict him of
sexual intercourse without consent and incest. The State responds that although A.M.
D. testified that she did not touch Duffy's penis, she also testified that she had
Duffy's penis in her mouth, which, the State contends, is sufficient to meet the
element of sexual intercourse.
5. ¶When asked, "[n]ow, specifically, do you remember, was his penis in your mouth,"
A.M.D. responded, "Yes[,] I wasn't touching it with my lips or my tongue or
anything though." Touching is not necessary. Penetration of A.M.D.'s mouth,

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however slight, by Duffy's penis is sufficient to meet the statutory definition of
sexual intercourse. After viewing the evidence in the light most favorable to the
prosecution, we conclude that based on A.M.D.'s testimony, a rational trier of fact
could have found that Duffy engaged in sexual intercourse with A.M.D. beyond a
reasonable doubt. Therefore, we conclude that the District Court did not err when it
denied Duffy's motion to dismiss Counts III and IV based on insufficient evidence.

ISSUE 6

1. ¶ Do the minimum prison terms contained in §§ 45-5-503(3)(a) and -507(4), MCA,
as applied to Duffy, violate his right to equal protection?
2. ¶We review constitutional issues to determine whether the court's interpretation of
the law is correct. In re the Matter of S.L.M. (1997), 287 Mont. 23, 32, 951 P.2d
1365, 1370.
3. ¶Duffy contends that since A.D.M. and M.M.D. were less than 16 years old at the
time he sexually abused them, §§ 45-5-503(3)(a) and -507(4), MCA, require a
minimum four- year prison term, which deprives him of equal protection because he
does not qualify for the exception to the minimum four-year term found at § 46-18-
222(5), MCA. Duffy asserts that he is similarly situated to persons convicted of
sexual assault, but treated differently because those offenders convicted of sexual
assault can qualify for the exception to the minimum sentence contained in § 46-18-
222(5), MCA. Duffy asserts that there is no rational basis for such a distinction.
4. ¶Before Duffy can claim standing to complain that he was unconstitutionally
affected by the mandatory minimum sentences, he must have been subject to those
sentences. He was not sentenced to the mandatory four-year minimum for any of his
offenses. He was sentenced to 20 years for each offense of sexual intercourse
without consent and 10 years for each incest conviction based on the District Court's
independent determination of the magnitude of his offenses. Therefore, we conclude
that Duffy has not been affected by the disparate treatment of sex offenders based
on the nature of their offense and has no standing to challenge the State's sentencing
scheme based on either equal protection or due process.
5. ¶The judgment of the District Court is affirmed.

/S/ TERRY N. TRIEWEILER

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We Concur:

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

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