State v. Oman

NO. 84-447
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985

STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
JOHN MARK OMAN,
Defendant and Appellant.

APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Joseph B. Gary, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Stephen C. Pohl, Bozeman, Montana

For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
A. Michael Salvagni, County Attorney, Bozeman,
Montana

Submitted on briefs: July 25, 1985
Decided: October 15, 1985

OCT 1 c: ,--J

Filed:
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.

Defendant, John Mark Oman, was convicted in the District
Court, Eighteenth Jud.icia1 District, County of Gallatin, on
May 31, 1984, of felony assa.ult. He was sentenced on June
21, 1984, to a three-year deferred impositi.on of sentence and
60 days in jail on work release with credit for time served.

The defendant appeals from his conviction.
We affirm.
The defendant raises two issues for our review:
1. That the District Court erred in granting the
prosecution's motion in limine to prohibit testimony
regarding previous civil child protective actions involving
the minor child, Crystal Simmons; and
2. That the jury's verdict was not supported by
substantial credible evidence.
In January 1984, Cindy Simmons and her daughter, Crystal
Simmons, were living in the home of defendant, Mark Oman. On
January 16, 1984, Cindy Simmons sought shelter for herself
and her child in the Gallatin County Battered Women's
Shelter. When Simmons went to the shelter, and on several
occasions immediately thereafter, she told several persons
that Oman had hit both her and her 14-month-old daughter in
the face. At the shelter several people, who testified at
the trial, personally observed that both Cindy and her child
had swollen lips and mouths as a result of the blows she
attributed to Oman.
On January 27, 1984, Cindy Simmons went to the Gallatin
County Sheriff's Office and made a statement against Oman.
Thereafter, Oman was arrested, charged with misdemeanor and
felony assault in violation of S 45-5-201 (1)(a), M.C.A. On
February 21, 1984, Oman entered pleas of not guilty to both
counts of the information. On May 21, 1984, upon motion of
the State, the charge of misdemeanor assault against Oman was
dismissed because Simmons recanted her story. The State,
however, proceeded to trial on May 31, 1984, with respect to
the felony assault charge.
At trial Simmons testified that her statement to the
Sheriff's Department was false and that the events she
described in the statement never occurred. Simmons testified
that by January 16, 1984, she had become very angry with Oman
and wanted to move out of his home, but had no money of her
own, no place to go and no relatives in town with whom she
could stay. As a result, Simmons contacted Bozeman's Help
Center and was given the name of the Battered Women's
Network. By reasons of her report that she had suffered
physical violence in her home, Simmons was all-owed to stay at
the shelter free of charge.
At the same time Simmons was admitted to the Shelter for
lodging, she was counseling with a Gallatin County social
worker. Simmons testified that the counsellor threatened her
that if she did not pursue an assault charge against Oman,
she would be sent to Boulder or Warm Springs and her
daughter, Crystal, would be taken away from her and put up
for adoption. Simmons also testified that she informed the
counsellor that what she had told the shelter about being
struck by Oman was not true and that the counsellor had
insisted she continue her story and further it by telling it
to the police. At the trial, the counsellor denied making
any such statements.
 Simmons accounted for her daughter's injured lip by
testifying that the injury occurred a couple of days prior to
January 16, 1984, while Crystal was with the church
babysitter. Simmons' explanation for her own injured lip was
that it was caused while rough-housing with a friend, Eric
Ayers.
Prior to trial., the prosecution presented a motion in
limine to prevent Oman's counsel from offering testimony
regarding civil court proceedings for child protective
actions. The District Court granted the motion in limine.
The civil proceeding which the motion in limine referred to
was a child protective action filed by the Gallatin County
Welfare Department in 1983 seeking the permanent removal of
Crystal Simmons from the home of her natural parents, Cindy
and Don Simmons, and seeking to terminate their parental
rights. The case was heard. and Crystal was returned to her
parents in December 1983.
No. 1.
Issue - - Did the District Court err in Granting the
Prosecution's Motion in Limine.
Oman's contention on this issue is that there was a
proceeding that unsuccessfully sought to remove Crystal
Simmons from her mother's custody and this was highly
relevant to show that Cindy Simmons pressed charges against
Oman only out of fear that her daughter would still be taken
from her. Oman argues that such evidence was highly relevant
to the issue of his guilt or innocence in that it would have
helped the jury understand Cindy Simmons' primary motive for
her reporting that Oman had assaulted her and her daughter,
and why she then changed her story at trial. In granting the
motion in limine the trial judge determined the subject
matter of the prior child protective actions was 1) not
relevant and 2) its introduction would only serve to confuse
the issues.
It is well settled that the trial judge has latitude of
discretion in passing on the admissibility of evidence.
State v. Gray (Mont. 1983), 659 P.2d 255, 257, 40 st/?Rep.
I-'

199, 202; State v. Pend-ergrass (19783, 179 Mont. 106, 112,
586 P.2d 691, 694; State v. Rollins (19671, 149 Mont. 481,
484, 428 P.2d 462, 464. The trial judge's determination of

the admissibility of evidence is subject to review only for
abuse of discretion. State v. Stokes (1981), 195 Mont. 321,
325, 637 P.2d 498, 500; State ~ 7 . Medicine Bull (1968), 152
Monte 34, 45, 445 P.2d 916, 922. Rule 402 of the Plontana

Rules of Evidence states in pertinent part: "Evidence which
is not Bgrelevant is not admissible."
Rule 401 of the M-ontana Rules of Evidence defines
relevant evidence in the following manner:
Relevant evidence means evidence ha.vinq any
tendency to make the existence of any fact that is
of consequence to the determination of the action
more probable or less probable than it would be
without the evidence. Relevant evidence may
include evidence bearing upon the credibility of a
witness or hearsay declarant.
The test of relevance is whether an item of evidence wj.11-
have any value, as determined by logic and experience, in
proving the proposition for which it is offered. State v.
Fit-zpatrick (1980), 1 8 Mont. 187, 207, 606 P . 2 d 1343, 1353.
.6
Generally, whatever naturally and 1ogicall.y tends to
establish a fact in issue is relevant, and that which fails
to qualify in this respect is not relevant. Monaco v.
Cecconi (1979), 180 Mont. 111, 119, 589 P.2d 156, 161; Brion
v. Brown (1959), 135 Mont. 356, 363, 340 P.2d 539, 543. The
District Court has broad discretion to determine whether or
not the evidence is relevant. Without a showing that the
District Court has abused its discretion, this Court will not
overturn the District Court's determination of relevancy.
McConnell-Cherwick v. Cherwick (1983), 666 P.2d 742, 744, 40
St.Rep. 1106, 1108; State v. Close (Mont. 19811, 623 P.2d
940, 948, 38 St.Rep. 177, 187.
We find no evidence in the record to indicate that the
District Court abused its discretion in determining the
offered evidence was irrelevant.
Having determined that the trial court judge's exclusion
of testimony regarding the prior child protective actions was
proper, the other matters that Oman raised with respect to
the application of S 41-3-205, MCA, regarding confidentiality
of the prior child protective actions, and his Sixth
Amendment right to confront witnesses need not be considered.
Issue No. 3,: Was the jury's verdict supported by
substantial credible evidence.
The test applied by this Court where sufficiency of the
evidence is an issue on appeal in a criminal case, whether
the trial is by jury or not, is the substantial evidence
test. This test is met if a reasonable mind would accept the
evidence as supporting the conclusion reached. In applying
this test the evidence is viewed in a light most favorable to
the prevailing party. The weight of the evidence and the
credibility of the witnesses is exclusively the province of
the trier of fact. If the evidence conflicts, it is within
the province of the trier of fact to determine which shall
prevail. See, State v. Berklund (Mont. 1984), - P.2d -I

42 St.Rep. 1147, 1149; State v. Green (Mont. 1984), 685 P.2d
370, 371-372, 41 St.Rep. 1562, 1564; State v. Johnson (1984),
1 9 Mont. 122, 127, 641 P.2d 462, 465.
.7 If the substantial
evidence test is not met, this Court will set the verdict or
judgment aside. Berklund, P.2d at -- I 42 St.Rep. at
1149; State v. Merseal (1975), 167 P.2d 410, 415, 538 P.2d
1366, 1368. In addition, the judgment will be disturbed when
the evidence is so inherently incredible that no reasonable
person ought to accept it as true. State v. Radi (1978), 176
Mont. 451, 461, 578 P.2d 1169, 1176; State v. Crockett
(1966), 148 Mont. 402, 407, 421 P.2d 722, 724-725.
We hold that there is sufficient evidence to support the
jury verdict. Despite Simmons' testimony at the trial
contradicting her previous statements, there was relevant
evidence that a reasonable mind would accept as adequate to
support the jury's finding that defendant was guilty as
charged. Evidence showed that in January 1984, Cindy Simmons
and her daughter, Crystal, were living in the home of Oman.
By January 1984, the relationship between Simmons and
defendant had eroded significantly. On January 16, 1984,
Simmons sought shelter for herself and her child in the
Gallatin County Battered Women's Shelter. At the Shelter and
immediately thereafter, Simmons told. several persons she and
her daughter had been violently beaten by Oman. Also when
Simmons appeared at the Shelter with her daughter, they both
had swollen lips and mouths from the beatings Simmons
attributed to Oman. On January 27, 1984, Cindy Simmons went
to the Gallatin County Sheriff's Office and made a statement
against Oman for the beating.
We a££irm.

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Justice

We Concur:
! ie Concur:
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