No. 8 7 - 3 0 5
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
DOUGLAS ALBERT HOWIE,
Defendant and Appellant.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert Holter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
David W. Harman, Libby, Montana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
Dorothy McCarter, Asst. Atty. General, Helena
Susan Loehn, County Attorney, Libby, Montana
Submitted on Briefs: Sept. 3, 1 9 8 7
Decided: October 13, 1987
Filed: 1 3 1987
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from a jury verdict of sexual assault
on an eight-year-old girl. The matter was tried before the
Honorable Robert M. Holter, Nineteenth Judicial District, in
and for the County of Lincoln, State of Montana. Appellant
was sentenced to six years in the Montana State Prison.
We affirm.
Three issues are presented for our consideration:
(1) Whether the trial court committed reversible error
in failing to sever Counts I1 and 111.
(2) Whether the trial court properly refused to
dismiss Count 11.
(3) Whether the prosecutor committed reversible
misconduct in posing leading questions to the victim.
On February 5, 1987, the appellant was charged with
three counts of sexual assault, all felonies, committed
against an eight-year-old girl. Section 45-5-502, MCA, says
one commits the offense of sexual assault if he "knowingly
subjects another not his spouse to any sexual contact without
consent ... " Section 45-2-101(60), MCA, defines sexual
contact as "any touching of the sexual or other intimate
parts of the person of another for the purpose of arousing or
gratifying the sexual desire of either party." Montana law
permits a maximum sentence of twenty years in prison for
anyone convicted of sexual assault upon a victim less than
sixteen years of age.
The appellant was arraigned March 2, 1987, and pled not
guilty to each count. Trial was held on June 3, 1987. At the
close of the State's case, on motion of counsel for the
appellant, the court dismissed Count I. The jury found
appellant not guilty on Count 11, which charged that
appellant made sexual contact with the girl on November 30 or
December 1, 1986 while he was babysitting the child. The
jury, however, convicted on Count 111, which stems from an
incident on January 25, 1987. We note that the jury
considered all of the evidence in this case and found that
the evidence supported conviction in Count I11 only.
The mother of the victim (hereinafter referred to as
mother) lived in Libby, Montana with her daughter
(hereinafter referred to as victim) age eight, and her son,
age five. At the time of the offense, the appellant and the
mother were involved in a relationship that lasted one year.
They had spent a considerable amount of time together. The
appellant was the mother's boyfriend.
On January 25, 1987, the appellant invited the mother,
her two children and some other people to his small apartment
to watch the Super Bowl football game. Testimony at trial
indicates that there was a considerable amount of beer
consumed by the people at this party. At trial the appellant
admitted that he had been drinking beer all day and that when
questioned initially he had told a sheriff's deputy he had
been drunk.
That evening it was decided that the mother and her
children would spend the night at appellant's apartment.
When it was time to put the children to bed, the mother put
them in appellant's bedroom, the only bedroom in the
apartment. The mother could not persuade them to go to
sleep, so the appellant offered to lie down with them to try
to get them to sleep. The mother left the appellant with the
children in the bedroom and testified that because she
trusted the appellant, she closed the door. There was
testimony by others present that the door was left open to
allow the bedroom to stay warm, as the only heat source was
in the other room.
The children were dressed in their pajamas and under
the covers when the appellant lay on top of the covers,
between the two children. The victim used anatomical dolls
when she later testified that the appellant had his hand on
her vaginal area, under her underpants and was rubbing her.
She further testified that appellant said she should snuggle
up to him. The victim came out to the living room and told
her mother that she could not sleep. She went to the couch
to lie down and she told her mother what the appellant had
done to her. The appellant denies that he touched her in her
vaginal area but did admit rubbing the children's stomach in
an effort to relax them and put them to sleep. As soon as
the victim told her mother what had happened, the mother
gathered up her two children and arranged transportation
home.
One witness who was at appellant's apartment that
evening observed the victim come out of the bedroom. He
testified that the victim seemed to be "a little distraught,"
and that she complained that the appellant had been rubbing
her, as the witness stated "just below the belt line."
Issue one raises the question of whether the conviction
should be reversed because the District Court failed to sever
the counts. The appellant argues that the District Court
committed reversible error when it failed to sever Counts I1
and 111, even though the appellant's counsel failed to
request severance before the trial. Appellant's counsel
proposes that the District Court should have severed the
counts on its own motion to protect appellant's right to a
fair trial since sexual abuse cases are highly emotional.
However, it is the general rule that failure to object to an
alleged error at trial results in a waiver of the right to
challenge the error on appeal. Sections 4 6 - 2 0 - 1 0 4 ( 2 ) ,
46-20-702, MCA; State v. Long (Mont. 1986), 726 P.2d 1364, 43
St.Rep. 1948.
The record does not support appellant's claim of
reversible error. Section 46-11-404 (4), MCA, states in
pertinent part:
If it appears that a defendant .. . is
prejudiced by a joinder of ... separate
charges ... the court may order
separate trials . .
. or provide any
other relief as justice may require.
P e find no merit in appellant's argument that the failure to
7
sever Counts I1 and I11 prejudiced his case by the
accumulation of evidence leading to his conviction on Count
This Court set forth in State v. Arthur Eldon Campbell
(1980), 189 Mont. 107, 615 P.2d 190, three basic prejudices
that may occur on joinder of similar offenses: (1) the jury
may consider a defendant facing multiple charges to be a bad
man and therefore may tend to accumulate the evidence until
it convicts him of some charge; (2) proof of guilt on one
count, inadmissible in a separate trial, may be used to
convict the defendant on a second count; or (3) the defendant
may wish to testify on his own behalf as to one count, but
not on another. The first type of prejudice is seldom
adequate to warrant severance, Campbell, 615 P.2d at 198.
Here the appellant failed to specify which evidence
offered as to Count I1 prejudiced his trial on Count 111. In
his brief, appellant's counsel admits that there was
sufficient evidence for Count I11 to go to the jury. Here
the very speculative allegation of prejudice is insufficient
to reverse the District Court. The appellant has failed to
meet his burden of demonstrating such prejudice. State v.
Orsborn (1976), 170 Mont. 480, 489, 555 P.2d 509, 515.
Neither does the second type of prejudice, which deals
with using evidence that would have been inadmissible in
separate trials to gain a conviction, exist in this case.
This is so because such prejudice is not present where the
facts and details of the allegations of one count are so
distinct that the jurors can keep it separate from the other
count. Orsborn, 555 P.2d at 515. The appellant does not
claim, and the record fails to indicate, that the two counts
were so much alike that the jurors were unable to separate
them.
Likewise, the appellant fails to claim, and the record
fails to disclose, that appellant wished to testify about
only one of the counts to the exclusion of the other. It is
the District Court Judge who must balance any prejudice of
the defendant's case against the judicial economy that
results from joint trials. Campbell, 615 P.2d at 198. This
Court will not interfere with the District Court's ruling
where it appears, as it does here, that the District Court
Judge employed sound discretion and did not abuse his
judicial prerogatives.
As to issue two, the failure to dismiss Count 11, we
find no merit.
The District Court employed the authority granted it by
5 46-16-403, MCA, which allows it to dismiss the count at the
close of the State's case if the evidence is insufficient to
support a guilty verdict. In State v. White Water (Mont.
1981), 634 P.2d 636, 638, 38 St.Rep. 1664, 1666, we
considered the statute and held:
[A1 directed verdict should only be
granted where there is no evidence upon
which a jury could base a verdict; that
is, the defendant is entitled to an
acquittal if reasonable men could not
conclude from evidence taken in the light
most favorable to the prosecution that
guilt has been proved beyond a reasonable
doubt. (Emphasis added. )
See, State v. Matson (Mont. 1987), 736 P.2d 971, 974, 44
St.Rep. 874, 877, citing White Water, supra. The District
Court keeping in mind the evidence that has been produced
along with a notion of "reasonable doubt" is the arbiter that
must decide whether to dismiss a count. The District Court
Judge, on motion of appellant's counsel at the close of the
State's case, considered the adequacy of the State's evidence
as to each of the three original counts. He granted the
motion to dismiss Count I, which alleged that appellant had
pinched the victim on the buttocks sometime during the late
summer or fall of 1986. The court stated, in the absence of
the jury :
[I] listened to that [testimony] quite
carefully because we have got to a
pinching and the problem is that these
[counts] become intertwined and proof of
one becomes proof of the other. But that
is not really the way that this works. I
think that each count has to stand on its
own.
It just seems to me that whatever the
contact was was minimal to be able to
conclude, standing alone, that Count No.
1 would be in any way to gratify any lust
of anybody. It would be such an
extension of the imagination that you
would have to take some of the other
proofs of other acts and I don't think
that is why they are submitted and I
think that I'm just going to not burden
the jury with that one.
Meanwhile, the court allowed Count I1 to be submitted
for jury consideration. The court ruled:
I'm going to let that one go to the jury.
I think that there is evidence there of
contact and I guess the last element
[that of sexual gratification], the
circumstances could cover.
Unless a defendant in a criminal case can show that the
District Court abused its discretion, the ruling will not be
disturbed. White Water, 634 P.2d at 637. The District Court
Judge's rationale shows that he made thoughtful decisions and
did not abuse his discretion.
Here the District Court Judge allowed testimony of the
victim relating to the facts of Count 11. The victim
testified as follows:
Q. [By Mrs. Loehn] And what happened
the night that Doug stayed with you?
A. We went to bed and he said to me, one
of us to sleep with him and [her brother]
fell asleep and so I crawled in bed with
him and he was naked.
Q. He didn't have any clothes on?
A. No.
Q. What did he do?
A. He rubbed his leg on me.
Q. Where on you did he rub it?
A. Right on my leg.
The appellant later testified that the two children slept in
their own beds that evening and denied that the victim slept
in his bed.
The victim's testimony was such that a reasonable jury
could conclude that the appellant had subjected the victim to
sexual contact and that the contact was for appellant's
sexual gratification. Conviction of a sexual assault may be
based entirely on the uncorroborated testimony of the victim.
State v. Maxwell (1982), 198 Mont. 498, 503, 647 P.2d 348,
351. This rule pertains to child victims as well. In State
v. A.D.M. (Mont. 1985), 701 P.2d 999, 42 St.Rep. 1186, a
five-year-old child was held to be competent to testify about
sexual abuse by her father because her testimony was
consistent with her prior reports and were supported by
psychological testimony. Therefore, that child's testimony
required no corroboration. A.D.M., 701 P.2d at 1000.
Whether a child is competent to testify is a matter left
largely to the discretion of the trial court. State v.
Rogers (Mont. 1984), 692 P.2d 2, 5, 41 St.Rep. 2131, 2135,
citing State v. Merrill Campbell (1978), 176 Mont. 525, 529,
579 P.2d 1231, 1233. In the present case the court
questioned the child victim outside of the presence of the
jury. Upon completion of the questioning, the court decided
that the child had the capacity to remember the occurrence
and the ability to relate her impressions of what occurred.
Further, the court found that the child had an "understanding
of the obligations to tell the truth ... " The District
Court properly discharged its function of insuring the
competency of the child victim. In the case at bar, the jury
might well have found sufficient proof to support Count 11,
even though they found the appellant not guilty of that
charge.
The third issue raises the question of whether the
prosecutor committed misconduct with her leading questions
and thereby prejudiced the appellant.
The appellant points out that under Griffin v.
California (1965), 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d
106, prejudice is not presumed but that it must be
established from the record that a substantial right was
denied. Here, he alleges that the substantial right is the
denial of a fair trial because of evidence by the State and
questioning the eight-year-old victim with leading questions.
State v. Watkins (1971), 156 Mont. 456, 481 P.2d 689.
The questioning of a minor child in this type of case
is a most difficult task for both the prosecutor and defense
counsel. The prosecutor argues that she was forced to use
leading questions to elicit facts that the child had related
previously. Under Rule 611(c), M.R.Evid., leading questions
are allowed when necessary to develop such testimony. This
Court's opinion, Bailey v. Bailey (1979), 184 Mont. 418, 421,
603 P.2d 259, 261, sets forth an exception to the general
rule against leading questions where there is a child
involved. In addition, we note that the answers given by the
child to the questions that are the subject of these
objections were in favor of the appellant.. We find no
prejudice.
The judgment of the District Court is affirmed.
We concur: I