State v. Rogers

No. 84-178

I N T I E SUPREME COURT O F THE S T A T E O F MONTANA

1984

THE S T A T E O F MONTANA,

P l a i n t i f f and R e s p o n d e n t ,

-vs-
ANTHONY ROGERS,

D e f e n d a n t and A p p e l l a n t .

A P P E A L FROM: D i s t r i c t C o u r t of t h e T h i r t e e n t h J u d i c i a l D i s t r i c t ,
I n and f o r t h e C o u n t y of Y e l l o w s t o n e ,
T h e H o n o r a b l e C h a r l e s L u e d k e , Judge p r e s i d i n g .

COUNSEL O F RECORD:

For A p p e l l a n t :

John L. A d a m s , B i l l i n g s , M o n t a n a

For R e s p o n d e n t :

Hon. M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , M o n t a n a
H a r o l d F. Iianser, C o u n t y A t t o r n e y , B i l l i n g s , Flontana

S u b m i t t e d on B r i e f s : September 27, 1984
~ ~ ~ i d o v e md e r: 1 5 , 1 9 8 4
N ~ b

Filed: #0\1 1 :<1384

-
Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Defendant Anthony Rogers appeals his conviction of
felony assault and sexual intercourse without consent
following a jury trial in the Yellowstone County District
Court. We affirm the conviction.
Stella Smith left her two daughters, Lanny Smith, aqe
four, and Estelle Smith, age two, in the care of defendant
and one of his roommates, Claudia Best, while she left town
for several days. The girls remained at defendant's house
for four days, June 6, 1983 through June 10, 1983. On June
10, Stella's brother, Kim Krecklaw, and sister-in-law, Lori
Fresonke, went to defendant's house and returned home with
the girls. While bathing Estelle, Lori noticed bruises on
her lower back. Lori then called the Yellowstone County
Department of Welfare.
The children were examined that evening by Dr. John
Sauer, Chairman of the Yellowstone County Sexual Abuse Team.
At trial, Dr. Sauer testified that he found several bruises
on Estelle's lower back, the characteristics of which
indicated a significant amount of force had. been used on the
child. He concluded she had been physically abused. His
examination of Lanny revealed several abnormal conditions in
the vaginal area consistent with the insertion or attempted
insertion of a finger into the vagina or the fondling of the
vaginal opening. He concluded there had been direct sexual
or physical contact. During the examination, Lanny twice
volunteered that defenda-nt had hurt her with his hand in her
vaginal area.
Lanny and Estelle were then placed in a receiving home.
Detective Frank Brun, experienced in sexual abuse and
incest cases, and Connie Harvey, social worker, conducted a
videotaped interview of Lanny on June 15, 1983. Lanny refers
to her vaginal area as her pee pee. Near the beginning of
the interview, Connie asked Lanny if anyone had ever hurt her
pee pee. Lanny replied that yes, Tony had done so. Tony is
the name Lanny calls defendant. During the interview, Lanny
also demonstrated on anatomically correct dolls how defendant
had hurt her by placing her finger in the doll's vagina.
This demonstration was later repeated twice at trial.
Detective Brun interviewed defendant twice, July 1, 1983
and July 30, 1983. An information charging defendant with
two counts, sexual intercourse without consent and felony
assault, was filed September 19, 1983. A jury trial was held
in January of 1984. Defendant was convicted and sentenced to
twenty years on the sexual intercourse without consent charge
and five years on the assualt charge, the sentences to run
concurrently.
At the trial, defendant denied committing either felony.
He also stated that he was never alone with the girls for
more than a few minutes at a time. However, his roommates,
Claudia Best and Wayne Hartford testified that defendant had
been alone with the girls for extended periods of time on
several occasions. Claudia also testified that she had
noticed bruises on Estelle's back while the girls were at the
house.
At defendant's request, the trial judge examined Lanny
for witness competency and found her competent to testify.
There is no record of that examination. In his brief,
defense counsel states that the competency examination was
very similar to the preliminary questions asked of Lanny at
trial. Responding to those questions, Lanny told the
prosecuting attorney her age, the date of her birthday, how
old she would be then, counted to ten and said the alphabet.
Then the following dialogue occurred:
"Q. Can you tell me what this is?
"A. Cup.
"Q. And what color is the cup?
 "A. Yellow.
"MS. OICONNOR: Let the record reflect that I am
holding a yellow cup.
"Q. If I said that this cup was green, would I be
telling the truth or a lie?
"A. A lie.

"Q. When I say that it's yellow, am I telling the
truth or a lie?
"A. The truth.
"Q. What color is this piece of paper?
"A. Pink.

"Q. If I said that this piece of paper was brown,
woul-d I be telling the truth or a lie?
"A. A lie.

"Q. That's right. When you are in this room, do
you have to tell the truth or a lie?
I1A. Truth.
"Q. Why?
"A. 'Cause it's very important.
"Q. That's right. It's very important. Let me
put you down one more time." (Transcript, pp.
176-177)
Lanny testified while sitting on the prosecuting
attorney1 lap.
s Cross-examination was cond.ucted in the same
manner, although defense counsel had been offered the
opportunity to hold Lanny in his lap during
cross-examination. In addition to telling the jury what
defendant had done to her, Lanny also testified that
defendant had hurt her sister, Estelle, by spanking her.
Detective Brun also testified at trial. On direct
examination, Brun set forth his experience with sexual abuse
cases, stated that defendant had denied harming either child
and recounted portions of the videotaped interview with
Lanny. On cross-examination, after learning that Brun had
not recently reviewed his notes on the case, defense counsel
attempted to refresh Brun's recollection with the transcript
of the videotaped interview. In an apparent effort to
discredit Lanny's testimony at trial, defense counsel began
reading verbatim from the transcript. Following objections
by the prosecuting attorney, defense counsel ultimately
entered the transcript into evidence. Subsequently, the
prosecution offered the videotape as the best evidence of
that transcript. The videotape was admitted and shown to the
jury.
Defendant raises the following issues on appeal of his
convictions:
1. Did the trial court properly declare Lanny competent
to testify?
2. Did. the trial court properly admit a videotaped
interview of Lanny?
Rule 601, Mont.R.Evid. states:
"Rule 601. Competency in general;
disqualification.
Ca General rule competency. Every person is
competent to be a witness except as otherwise
provided in these rules.
(b) Disqualification of witnesses. A person is
disqualified to be a witness if the court finds
that (1) the witness is incapable of expressing
himself concerning the matter so as to be
understood by the judge and jury either directly or
through interpretation by one who can understand
him or (2) the witness is incapable of
understanding the duty of a witness to tell the
truth. I
'
This rule has no age requirement.
Prior to testifying, Lanny illustrated to both the judge
and the jury that she knew the difference between the truth
and a lie. She also illustrated that she knew the importance
of telling the truth.
Lanny's testimony was basically consistent with the
reports she had given to Dr. Sauer, Detective Brun and Connie
Harvey regarding the incidents. The inconsistencies mostly
involved dates and times, details about which any witness may
become confused. Those inconsistencies do not affect a
witness' competence. Rather, they are for the jury to
consider when determining a witness' credibility. State v.
Shambo (1958), 1-33 Mont. 305, 309, 322 P.2d 657, 659.
 'Whether a child is competent to be a witness is a
determination left largely to the discretion of the trial
court. State v. Campbell (1978), 176 Mont. 525, 529, 579
P.2d 1231, 1233. There was no clear abuse of that discretion
here.
Defendant further complains that allowing Llanny to sit
on the prosecuting attorney's lap while testifying was
prejudicial. Specifically, defendant alleges that it
prevented him from conducting an adequate cross-examination.
However, defendant cites no specific example of prejudice.
In fact, he was able to conduct a detailed cross-examination
of Lanny. " [I]n a criminal case, if prejudice is alleged,
it will not be presumed, but it must be established from the
record that a substantial right was denied. (cite omitted)."
State v. Dupre (Mont, 1982), 650 P.2d 1381, 1386, 39 St.Rep.
1660, 1666. The record in this case shows no prejudice.
Further, Rule 611, Mont.R.Evid. states in pertinent
part :
"Rule 611. Mode and order of interroqation and
-
presentation; re-examination and recall;
confrontation.
(a) Control by court. The court shall exercise
reasonable control over the mode and order of
interrogating witnesses and presenting evidence so
as to (1) make the interrogation and presentation
effective for the ascertainment of the truth, (2)
avoid needless consumption of time, and (3) protect
witnesses from harassment or undue embarrassment."
Pursuant to this rule, the trial court was well within its
discretion in allowing Lanny to sit on the prosecuting
attorney's lap. That posture assisted in directing Lanny ' s
attention to the questioning and provided comfort to her
during a difficult and unfamiliar experience.
Turning to the second issue, defendant contends that it
was reversible error for the trial court to admit the
videotape of the interview into evidence because he was not
present to confront and cross-examine Lanny. The interview
took place several weeks prior to defendant's arrest.
Defendant relies on sections 46-15-401 and -402, PICA, to
support his position.
"46-15-401. When videotaped testimony admissible.
For any prosecution commenced under 45-5-502(3),
45-5-503, 45-5-505, or 45-5-613, the testimony of
the victim, at the request of such victim and with
the concurrence of the prosecuting attorney, may be
recorded by means of videotape for presentation at
trial. The testimony so recorded may be presented
at trial and shall be received into evidence. The
victim need not be physically present in the
courtroom when the videotape is admitted into
evidence.
"46-15-402. Procedure at videotaping. (1) The
procedural and evidentiary rules of the state of
Montana which are applicable to criminal trials
within the state of Montana shall apply to the
videotape proceedings authorized by this part.
"(2) The district court judge, the prosecuting
attorney, the victim, the defendant, the
defendant's attorney, and such persons as are
deemed necessary by the court to make the
recordings authorized under this part shall be
allowed to attend the videotape proceedings."
These sections apply only to videotaped testimony to be used
in lieu of testimony by the witness at trial. See the
February 8, 1979 minutes of the House Judiciary Committee and
the January 29, 1979 minutes of the Senate Judiciary
Committee regarding Senate Bill 197. Here, Lanny was present
and testified at trial. Defendantr rights to confrontation
s

and cross-examination were preserved.
It was defendant who moved to have the transcript of
that interview admitted into evidence. Once that transcript
was admitted, it was totally within the province of the trial
court to allow into evidence what it considered to be a more
accurate version of the same thing. "The Federal Rules of
Civil Procedure [as well as Montana's rules] provide for the
taking of depositions by other than stenographic means and
presuppose their use in court. (citation omitted) No valid
distinction exists between the use of a deposition taken by
video tape and the use of a statement taken by video tape."
Hendricks v. Swenson (1972), 456 F.2d 503, 505.
Moreover, it was defendant who moved to have the
transcript of that interview admitted into evidence.
Pursuant to Rule 1002, Mont. R. Evid. , once the transcript was
admitted, the videotape itself could be admitted as the "best
evidence" of that transcript. See, for example, Duncanson
v. State (Ind. 1979), 391. N.E. 2d 1157, where the court held
a tape recording to be the best evidence of its own contents.
Defendant's conviction is affirmed.

We concur: