96-094
No. 96-094
IN THE SUPREME COURT OF THE STATE OF MONTANA
1997
STATE OF MONTANA,
Plaintiff and Respondent,
v.
JACK
MASON,
Defendant and Appellant.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable John Christensen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Steven M. Hudspeth, Great Falls, Montana
For Respondent:
Thomas P. Meissner, Fergus County Attorney, Lewistown, Montana;
Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant
Attorney
General,Helena, Montana
Submitted on Briefs: April 24, 1997
Decided: June 17, 1997
Filed:
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_________________________________________
Clerk
Justice William E. Hunt, Sr. delivered the Opinion of the Court.
Appellant Jack Mason (Mason) appeals convictions entered by the Tenth Judicial
District Court, Fergus County, after a jury found him guilty of two counts of sexual
intercourse without consent and one count of felony sexual assault. We affirm.
ISSUES
Mason presents the following restated issues upon appeal:
1. Did the District Court abuse its discretion in denying Masonþs motion to
dismiss Count II and Count III of the information for lack of probable cause?
2. Did the District Court abuse its discretion in denying Masonþs motion to
dismiss the charges for violation of the applicable statute of limitations?
3. Did the District Court abuse its discretion in allowing witnesses to
testify that
the victim displayed psychological characteristics consistent with having been
sexually
abused?
FACTS
On December 6, 1993, the Fergus County Attorney charged Mason with two
counts of sexual intercourse without consent and one count of felony sexual assault
against his grand-niece, R.K. R.K. contacted the County Attorney in April of 1992,
when she was nineteen years old. The incidents giving rise to the charges, however,
took
place some six years before, when R.K. was about thirteen years old.
Prior to trial, Mason moved to dismiss Count II, felony sexual assault and
Count
III, sexual intercourse without consent. The District Court denied these motions.
After
the evidence was submitted at trial, Mason moved the District Court to direct an
acquittal
based on the Stateþs alleged failure to prove that the charges had been filed within
the
applicable statute of limitations. The District Court denied this motion as well.
In
addition, Mason objected at trial to the testimony of R.K.þs school and psychological
counselors. The District Court prohibited the counselors from testifying regarding
R.K.þs
credibility, but otherwise allowed their testimony.
Following a three-day jury trial, Mason was convicted of all the charged
offenses.
Mason appeals the denial of his motions to dismiss two of the charges, the denial of
his
motion to direct an acquittal, and the allowance of the testimony of R.K.þs
counselors.
ISSUE 1
Did the District Court abuse its discretion in denying Masonþs motion to
dismiss
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Count II and Count III of the information for lack of probable cause?
Mason argues that the District Court abused its discretion in denying his
motion
to dismiss Counts II and III of the information. He contends that the information
did not
contain allegations specific enough to meet the probable cause requirement of 46-
11-
201(2), MCA.
Leave to file an information will be granted if it appears from the
application that
probable cause exists to indicate that the offenses have been committed by the
defendant.
State v. Ramstead (1990), 243 Mont. 162, 165-66, 793 P.2d 802, 804. In the
supporting
affidavit, the State need only recite facts sufficient to indicate a probability
that the named
defendant committed the charged offenses; the State need not demonstrate a prima
facie
case. Ramstead, 793 P.2d at 804. See also State v. Little (1993), 260 Mont. 460, 861
P.2d 154. In reviewing an affidavit for probable cause, the district court may use
common sense and draw permissible inferences. On appeal, this Court will not reverse
a district courtþs determination regarding probable cause absent an abuse of
discretion.
Little, 861 P.2d at 160; Ramstead, 793 P.2d at 804.
In this case, the affidavit underlying the information contained a long
excerpt from
R.K.þs journal, detailing the abuse she suffered as a child. This excerpt vividly
recounted
the progression of the abuse as well as the details of the particular incidents
which gave
rise to the charges. However, as Mason notes, R.K. in the journal sometimes employed
euphemisms, such as recounting the initial events of one incident and then stating
that
Mason "proceeded to do his thing." Mason contends that such phrases are vague and
insufficient to support a finding of probable cause to charge him with the challenged
crimes.
The affidavit, however, is not limited to the excerpt from R.K.þs journal.
It also
contains the testimony of the county attorney, who attested that the victim had told
him
that sexual contact took place during the incident giving rise to the charge of
sexual
assault, and that penetration took place during the incident giving rise to the
charge of
sexual intercourse without consent. The affidavit in this case was both lengthy and
detailed, and the representations of the victim, together with the statements of the
county
attorney, constituted more than sufficient probable cause to support the
information. As
noted above, the prosecution need not prove its case before charging a defendant; it
need
only recite facts indicating that it is probable that the defendant committed the
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offenses.
Ramstead, 793 P.2d at 804. We conclude that the District Court did not abuse its
discretion in finding sufficient probable cause to charge Mason with the crimes
alleged.
ISSUE 2
Did the District Court err in denying Masonþs motion to dismiss the charges
for
violation of the applicable statute of limitations?
Mason next argues that the District Court erred in denying his motion to
dismiss
the charges for violation of the statute of limitations. Mason did not move to
dismiss the
charges until the end of the case but, as he correctly notes, a claimed violation of
the
applicable statute of limitations is a jurisdictional issue which may be raised at
any time.
State v. Larson (1989), 240 Mont. 203, 205, 783 P.2d 416, 417. Whether the District
Court correctly applied the statute of limitations is a question of law. Hollister
v.
Forsythe (1995), 270 Mont. 91, 93, 889 P.2d 1205, 1206. See also Barthule v. Karman
(1994), 268 Mont. 477, 484, 886 P.2d 971, 976. This Court reviews questions of law
to ensure the trial courtþs application of the law was correct. Hollister, 889 P.2d
at 1206;
Barthule, 886 P.2d at 976.
A felony prosecution must be commenced within five years of the commission of
the offense. Section 45-1-205(2)(a), MCA. However, if the victim is under eighteen
years old, the statute of limitations is tolled for certain sex offenses (including
both
felony sexual assault and sexual intercourse without consent) until he or she reaches
eighteen. Section 45-1-205(1)(b), MCA. This provision regarding victims under
eighteen
was enacted in 1989 and applied retroactively to all offenses that were committed
before
the effective date and for which the statute of limitations had not yet expired.
Since the
statute of limitations for a felony prosecution is five years, the State was
empowered to
prosecute any felony occurring after March 24, 1984, or five years prior to the
relevant
amendment of 45-1-205(1)(b), MCA.
Mason contends that the State failed to prove that the incidents giving rise
to the
offenses charged occurred after March 24, 1984. He notes that R.K. was unable to
pinpoint when the incidents took place, testifying only that they occurred when she
was
in the seventh and eighth grades. Mason contends these vague references to time are
not
sufficient to confirm that the statute of limitations on these offenses had not
previously
expired.
We disagree. The testimony at trial established that R.K. was born in
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February
of 1973 and was a sophomore in high school in February of 1989. According to these
dates, R.K. progressed through school at the usual rate of one grade per year,
starting
first grade at age six. In March of 1984, she would have been eleven years old and
in
the fifth grade. Yet at trial R.K. testified that the abuse began during her
twelfth year,
and that the incidents giving rise to the charges occurred when she was in the
seventh and
eighth grades. While R.K. was unable to fix the dates of the offenses with
particularity,
the record is devoid of any indication that they occurred prior to March of 1984,
thereby
exceeding the statute of limitations. We have held that "because children are less
likely
to distinguish dates and times with specificity, the fact that a victim cannot set a
date for
the crime should not be fatal to the Stateþs case. To hold otherwise would leave the
defendant virtually immune from prosecution." Little, 861 P.2d at 161. We conclude
that the District Court did not err by refusing to dismiss the charges or by
concluding that
the applicable statute of limitations had not expired.
. ISSUE 3
Did the District Court abuse its discretion in allowing witnesses to testify
that the
victim displayed psychological characteristics consistent with having been sexually
abused?
Lastly, Mason argues that the District Court abused its discretion in
allowing the
testimony of R.K.þs high school and psychological counselors. He contends that these
individuals impermissibly commented on the victimþs credibility and that, therefore,
their
testimony should have been excluded. This Court reviews evidentiary rulings to
determine whether the District Court abused its discretion in admitting or refusing
the
evidence in question. State v. Stuit (1996), 277 Mont. 227, 230, 921 P.2d 866, 868
(citing State v. Riley (1995), 270 Mont. 436, 440, 893 P.2d 310, 313; State v. Santos
(1995), 273 Mont. 125, 137, 902 P.2d 510, 517).
Masonþs assertion of error is premised on his characterization of the
counselorsþ
testimony as tending to "bolster or corroborate" R.K.þs testimony. He correctly
notes
that evidence presented to corroborate a victimþs testimony is generally
inadmissable,
absent an attack on the victimþs credibility by the defendant. Rule 801(d)(1)(B),
M.R.Evid. Since Mason did not attack the victimþs credibility, he argues that the
counselorsþ testimony was inadmissable and should have been excluded. In support of
this contention, Mason cites State v. Hensley (1991), 250 Mont. 478, 821 P.2d 1029,
and
In re the Teaching Certificate of Thompson (1995), 270 Mont. 419, 893 P.2d 301.
These cases are not on point. Hensley addressed the ability of a qualified expert
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to
testify directly about the credibility of a victim who testifies in a child sexual
abuse case.
Thompson involved a lack of foundation for the use of expert testimony to address the
credibility of a victim over the age of seventeen. Thus, both Hensley and Thompson
are
cases involving testimony commenting directly on the victimþs credibility. Masonþs
reliance on these cases is premised on the assumption that the counselorsþ remarks
also
constituted direct commentary on R.K.þs credibility. This assumption misconstrues
the
testimony.
The counselors in question worked with the victim during high school, prior
to her
reporting the offenses to the authorities and before investigation of the charges.
The
counselors described their counseling relationships with R.K. and testified that
during
those relationships they observed certain behavioral characteristics, such as
depression,
guilt and anger, which are symptomatic of sexual abuse victims. The counselors did
not
testify regarding whether R.K. was telling the truth or give their opinions as to her
credibility. To the contrary, the District Court before trial specifically
prohibited the
State from eliciting their testimony regarding R.K.þs credibility. The counselorsþ
testimony regarding counseling sessions which occurred long before trial did not
serve
to corroborate R.K.þs testimony. Instead, it set forth the counselorsþ personal
observations regarding her behavior, which was relevant to the issue of whether the
offenses charged actually occurred. This in turn was relevant to the juryþs
determination
of whether Mason had or had not committed the offenses charged. The District Court
did not abuse its discretion in allowing the challenged testimony.
Affirmed.
/S/ WILLIAM E. HUNT, SR.
We Concur:
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ KARLA M. GRAY
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