No. 86-72
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
THE STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
KENNETH LAIRD,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial Di.strict,
In and for the County of Yellowstone,
The Honorable Diane G. Rarz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gary E. Wilcox, Billings, Montana
For Respondent:
Mike Greely, Attorney General, Helena, Montana
George Schunk, Asst. Atty. General, Helena
Harold F. Hanser, County Attorney, ~illings,
Montana; Donna Heffington, Deputy County Attorney
Submitted on Briefs: Dec. 11, 1986
Decided: F e b r u a r y 9, 1987
Filed:FEB9- EWlf
- a *,u Clerk
4
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Defendant Kenneth Laird appeals his conviction for
sexual intercourse without consent following a jury trial in
the Thirteenth Judicial District in and for the County of
Yellowstone. We affirm his conviction.
Three issues are raised on appeal:
1. Whether the District Court erred in denying
defendant's request to cross examine the State's witnesses on
an alleged prior assault made against the victim.
2. Whether the District Court erred in admitting the
testimony of the state's expert witness on the probability of
sexual assault upon the victim.
3. Whether the District Court erred in admitting as
evidence "pornographic" materials found in defendant's
apartment.
In March 1 9 8 5 , nine year old Katherine lived with her
mother Melissa and two younger sisters in an upstairs room at
the Acme Hotel in downtown Billings. The defendant lived
with his common law wife a floor beneath them in room No. 1 5 .
Defendant and Melissa had known each other on Billings' south
side for several months before Melissa moved her family to
the Acme. Defendant moved to the Acme a month or so after
Melissa's family. Defendant and Melissa were friends, so in
the months between defendant's move and the early part of
March, defendant visited Melissa several times a week to
drink coffee and talk. Melissa's children were often present
during these visits.
On Friday, March 8, Katherine was on her way home from
school when, as she started up the stairs to her apartment,
she saw defendant in the hallway. He coaxed her near to him
by offering her candy, then grabbed her by the hand, pulled
her into his room, and locked the chain lock on the door.
Defendant's wife was not there. Defendant then undressed
Katherine and raped her orally, vaginally and rectally.
Katherine testified that defendant showed her "dirty"
magazines before raping her, telling her that he was going to
do to her what the naked people in the magazines were doing.
When he finished raping Katherine, defendant told her that if
she told on him, he would do it again.
Katherine did not tell anyone what happened for several
days. In that period her mother noticed that her daughter
had trouble sleeping, was scratching her vaginal area and
made frequent trips to the bathroom. Around 1:30 on Sunday
morning, March 10, Katherine, who was sleeping near her
mother, (who was watching a late movie on t.v.), woke crying.
When her mother asked her what was wrong, Katherine continued
crying and insisted that if she told, her mother wouldn't
love her anymore. Melissa, aware that something was wrong,
asked Katherine if someone had hurt her, and learned that
Katherine had been assaulted. In her rage, Melissa went down
to defendant's apartment, broke through his door and attacked
him with a kitchen knife. She was arrested and taken to jail
until March 15. She did not spend any time alone with her
children until that time.
At about 11 a.m. the morning of March 10, a Billings
police officer took the defendant's stat.ement at the Billings
Deaconess Hospital. At that time defendant maintained that
an unknown lady had attacked him with a knife, and that
although she may have lived in the building, he did not know
who she was. In another statement to police on March 12,
defendant admitted. knowing Melissa and her family, but denied
any close familiarity with them. He stated that he believed
Melissa made up the sexual assault story to cover for her
attack on him.
Sometime after the assault defendant moved from
apartment 15, where Katherine was raped, to a new apartment
in the building, apartment 29. On March 14, defendant
consented to a search of his new apartment. The detective
explained that the purpose of the search was to find
pornography relating to defendant's sexual assault on
Katherine. Seven maga,zines were confiscated. At trial
defendant admitted that the magazines confiscated from
apartment no. 29 were the same that he had in his earlier
apartment, number 15.
Katherine was examined by a doctor, Doctor Patrick Sauer
on March 13. His conclusion from the examination, as well as
from Katherine's statements to him, was that he was 99.99
percent sure that Katherine had been sexually assaulted. Dr.
Sauer testified that Katherine's hymen was gone and that her
vaginal opening was twice the size normal for a child of her
age. He further testified that he found three abrasions
inside the vaginal opening, each approximately $ " in length.
On April 23, 1985 Social. Worker Susan Kerns of the
Yellowstone County Resource Department gave her statement to
the police. She had been the social worker assigned to
Melissa and her family since August of 1984. Her statement
contained two pertinent passages to this appeal:
Q. (by the police) ... [Hlad you occasion to
talk to the children or have anything to do with
the family within a couple of weeks previous [to
the assault]?
A. I saw the family about two weeks earlier.
Q. And did you notice anything peculiar at that
time?
A. [Wlhile I was there I noticed that Katherine
getting up from taking a nap and scratching herself
in the vaginal area.
Q. (by the police) ... Since (the rape) have
either of the children mentioned anything new to
you?
A. There is a possibility Katherine may have been
assaulted once by a man who picked her up on the
street as she was walking home from school.
Q. Do you recall or do you know when that might
have been?
A. No, and I don't know what the man's name was,
she did not have the name, ah I, just don't know
how we can track that down.
Q. Did she, or was she able to describe to what
extent the assault occurred?
A. No.
The first of the three issues concern these comments by
Ms. Kerns. Defendant maintains that it was error for the
District Court to prevent defendant from asking Dr. Sauer
whether a previous assault could be the explanation for the
physical injuries he used in concluding that she had been
assaulted. Defendant also argues that the testimony of
social worker Kerns on Katherine's apparent vaginal
irritation two weeks before the assault was evidence he
should have been able to use to mitigate the adverse physical
evidence against him. The implication was that Katherine's
irritation was caused by an earlier assault and that
Katherine was fabricating the charge against defendant. The
trial court ruled that defense counsel was not allowed to
examine any State's witness regarding any alleged prior
assault. We affirm its decision.
Defense counsel intended to bring the matter up for
cross examination under § 45-5-511 (4), MCA. Section
45-5-511, MCA, provides in relevant part:
(4) No evidence concerning the sexual conduct of
the victim is admissible in prosecutions under this
part except:
(a) evidence of the victim's past sexual conduct
with the offender;
(b) evidence of specific instances of the victim's
sexual activity to show the origin of semen,
pregnancy, or disease which is at issue in the
prosecution.
It is our view that neither of the above quoted
exceptions pertain to the alleged incident of assault.
First, this incident was not alleged to have occurred with
the defendant and, even were it so alleged, would not have
been exculpatory hecause of the victim's and defendant's
ages. Second, the alleged assault hardly constituted a
specific instance of the victim's sexual activity. The
defendant admittedly knew very little about the speculated
earlier assault. The record does not even indicate if the
incid.ent was sexual in nature. Ms. Kern's statement that
there was a "possibility" of assault, without further
explanation, was an inadequate offer of proof and was
insufficient to support any cross examination under the
exceptions of S 45-5-511 (4)(b).
Defendant also argues that Dr. Sauer's opinion testimony
on whether there was a rape went to the ultimate issue before
the Court and was inadmissible evidence of Katherine's
veracity. Defendant cites the following trial testimony to
support his contention:
Q. [Deputy County Attorny) Based on your
examination of this little girl, did you arrive at
a diagnosis?
A. [Dr. Sauerj Based on the information that she
gave me, based on her physical exam, reviewing all
the information, I feel the diagnosis is that she
was sexually assaulted.
Q. All right. Is that the diagnosis that you
placed on your report?
A. It is on the dictated report, my final
impression says "Possible sexual assault." I think
you need to understand that this is, and especially
in these kinds of circumstances where I feel it is
important to put down what the child tells to you
as soon as possible, and I am still waiting for
further tests, I will put "possible" until I have
reviewed it in my mind and made my final diagnosis.
Q. Based upon the evidence you had before you at
that time, how likely do you feel it was that the
child had been sexually assaulted?
A. 99.99 percent.
Defendant invites this Court to conclude that when an
expert testifies about his findings, the expert is in fact
commenting on the weight and credibility of the evidence
given by the victim. We do not accept the defendant's
invitation. It is clear that Dr. Sauer was not testifying
about Katherine's veracity. Instead, Dr. Sauer was asked to
give his diagnosis of Katherine based upon his experience as
a pediatric specialist. The physician can testify as to his
clinical impression and give an opinion based upon his
experience and first hand observation. State v. Dickens
(1982), 198 Mont. 482, 647 P.2d 338. Dr. Sauer said he was
99.99 percent certain Katherine had been sexually assaulted.
He did not say he was certain she was telling the truth. He
also did not make any conclusions regarding the ultimate
issue, i.e., whether the defendant raped Katherine. For the
above reasons, defendant's assertion that the District Court
erred in admitting Dr. Sauer's testimony on the probability
of sexual assault is unsupported in law.
The final issue raised by the defendant is whether the
District Court erred in admitting as evidence the magazines
found in his apartment. Defendant argues that the magazines
were inadmissible first because of lack of foundation and
second because the probative value of the evidence was
outweighed by its prejudicial effect.
Defendant argues that no evidence or testimony was
presented establishing that the magazines taken from his
second apartment were similar to or were the actual magazines
shown to Katherine. Defendant maintains that magazines were
admitted for the sole purpose of prejudicing the jury.
The introduction of evidence at trial is controlled by
several statutory provisions. A threshold inquiry is whether
the evidence is relevant. Rule 401, M.R.Evid. provides:
Relevant evidence means evidence having 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 a hearsay declarant.
The magazines were relevant because they tended to
buttress Katherine's credibility. She had told investigators
that she was shown "dirty" magazines and such magazines were
found in the search of defendant's room.
The defendant contends that the evidence was unfairly
prejudicial, citing Rule 403, M.R.Evid:
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by
considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
The defendant asserts that physical presentation of the
magazines at trial was unnecessary. He maintains that the
State did not need to admit the magazines as evidence to
establish that the magazines were confiscated from his
apartment and that the evidence bolstered Katherine's
testimony. In defendant's view, the magazines were
unnecessary evidence admitted solely for prejudicial
purposes.
The established rule of law is that a district court's
weighing of potential prejudice against probative value will
be upheld absent an abuse of discretion, State v. Austad.
(1982), 197 Mont. 70, 83, 641 P.2d 1373, 1380. We find no
abuse of discretion by the trial court in finding that the
probative value of the magazines outweighed potential
prejudice to the defendant. The magazines were necessary to
corroborate Katherine's testimony. It was within the trial
court's discretion to rule on their admission as physical
evidence.
Defendant also questions the sufficiency of the
foundation supporting the admission of the magazines.
Defendant asserts that although Katherine testified she had
been shown magazines, she never testified at trial that the
magazines in evidence were those magazines defendant showed
her.
Once again this matter is within the trial court's
discretion. The trial court's determination of the adequacy
of foundation should not be overturned unless there is a
clear abuse of discretion. State v. Armstrong (1980), 37
St.Rep. 1563, 1579, 616 P.2d 341, 355. In the instant case,
defendant admitted that the magazines presented at trial were
the same present in apartment 15 on March 8. Given this
admission it is clear the trial court was justified in
finding that an adequate foundation had been presented. The
trial court did not abuse its discretion by allowing the
magazines into evidence.
For the reasons stated herein, the findings of fact and
conclusions of law of the District Court are affirmed.
,,/7
Justice
We Concur:
C
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