State v. Eiler

NO. 87-494

I N THE SUPREME COURT OF THE STATE O F MONTANA

1988

STATE O F MONTANA,

Plaintiff and R e s p o n d e n t ,
-vs-

JERR-Y E I L E R ,

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: T h e D i s t r i c t C o u r t of t h e T w e l f 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 H i l l ,
T h e H o n o r a b l e B.W. T h o m a s , J u d g e p r e s i d i n g .

COUNSEL O F RECORD:

For A p p e l l a n t :

Moses Law F i r m ; C h a r l e s F . Moses a r g u e d , B i l l i n g s ,
Montana

For Respondent:

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 , Helena, Montana
B e t s y B r a n d b o r g argued, A s s t . A t t y . General, Helena
D a v i d R i c e argued, C o u n t y A t t o r n e y , H a v r e , Montana

Submitted: June 1 4 1 1 9 8 8
Decided: September 14, 1988

Filed: $ j ~ p 4 1988'
1

Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Defendant Jerry Eiler appeals his jury conviction of
sexual assault in violation of S 45-5-502, MCA, in the
Twelfth Judicial District, Hill County, Montana. Defendant
was charged by information on February 5, 1986, with sexually
assaulting his then four-year-old stepdaughter, S.A. Eiler
was sentenced to a term of fifteen years with the last seven
years suspended. We affirm.
Defendant raises the following issues on appeal:
1. Did the District Court properly determine that the
victim, eight-year-old S.A., was competent to testify to
incidents which occurred four years earlier?
2. Did the District Court properly allow leading
questions by the prosecuting attorney during the deposition
of the eight-year-old victim?
3. Did the District Court properly admit evidence of
defendant Eiler's prior acts with T.M., his stepdaughter in a
previous marriage?
4. Did the District Court properly rule that Dr.
Jarvis, a psychologist who examined S.A., was a qualified
expert whose testimony was permissible?
5. Did the evidence support the jury conviction of
guilty beyond a reasonable doubt?
The victim, S.A., was born on January 21, 1978. In
September, 1980, she and her mother Sharon began living with
Jerry Eiler, defendant and appellant in this action. Sharon
and defendant were married in October, 1981. In the summer
of 1982, Eiler had sexual contact with S.A. while she was
riding with him on a tractor.
In January, 1983, Sharon went to the State of Washing-
ton for treatment of alcoholism, for a period of one month.
During this time S.A. stayed with Eiler. While Sharon was
absent Eiler had sexual contact with S.A. in the family home
on two separate occasions.
Shortly after Sharon returned home from Washington, she
divorced Eiler.
By the fall of 1983, S.A. had become disobedient,
destructive, and towards other children, abusive. S.A. also
began masturbating frequently. This unusual behavior prompt-
ed Sharon to take S.A. to Dr. Jarvis, a psychologist, who
concluded from his diagnosis that S.A. had been sexually
abused. He testified to this at trial.
In February of 1986, Eiler was charged with sexual
assault of his stepdaughter. S.A. testified by videotape
deposition at trial. It was determined by the District Court
at the deposition that S.A. was competent to testify.
S.A. testified that she understood what it meant to
tell the truth and realized there were consequences if she
failed to tell the truth. The videotaped deposition revealed
that she was crying, quite upset, and was hesitant to answer
questions concerning specific details of the alleged sexual
contacts. The prosecution was allowed to use leading ques-
tions, and S.A. testified that the defendant had touched her
"private parts" with his hands and had instructed her to
touch his "private parts." S.A. testified that she did not
tell anyone "because he [Eiler] said he would spank me."
T.M., Eiler's stepdaughter in a previous marriage,
testified at trial that Eiler forced her to have intercourse
with him regularly from 1973 when T.M. was age nine, until
1977. Eiler and T.M.'s mother, J.E., began living together
in 1973, were married in 1975, and were divorced in 1977.
Counsel for the defense objected to this testimony of prior
acts by T.M., but the objection was overruled. Eiler was
convicted by jury verdict of sexually assaulting S.A.
 Appellant first contends that S.A., the victim, was not
competent to testify. S.A. was four years old when forced to
engage in sexual contact with Jerry Eiler and she was eight
years old when she testified to the acts. Rule 601,
M.R.Evid., is controlling:
Rule 601. Competency in general;
disqualification.
(a) 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 under-
stood 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.
The requirements for determining competence are "capacity of
expression and appreciation of the duty to tell the truth."
State v. Phelps (Mont. 1985), 696 P.2d. 447, 453, 42 St.Rep.
305, 312. The rule imposes no age requirement for testify-
ing. State v. Campbell (1978), 176 Mont. 525, 579 P.2d 1231;
State v. Smith (1984), 208 Mont. 66, 676 P.2d 185. This
Court has allowed testimony of five-year-old victims in
Phelps, 696 P.2d 447, 42 St.Rep. 305, and State v. A.D.M.
(Mont. 1985), 701 P.2d 999, 42 St.Rep. 916; and testimony of
four-year-old victims in State v. D.B.S. (Mont. 1985), 700
P.2d 630, 42 St.Rep. 770, Campbell, 176 Mont. 525, 579 P.2d
1231, and State v. Rogers (Mont. 1984), 692 P.2d 2, 41
St.Rep. 2131.
Appellant contends that S.A. did not have the ability
to comprehend and relate what occurred. Appellant refers to
S.A.'s testimony which indicates she could not clearly remem-
ber details of the alleged acts. First, she could not remem-
ber where she lived in 1982 and 1983. Second, when the
sexual contact occurred, she could not specifically recall
whether she was standing or sitting on the tractor. And
third, S.A. could not remember what clothes she and Eiler
were wearing when the acts took place. However, it has been
established by this Court that "children especially
four-year-olds are not governed by the clock and calendar as
adults are. They are generally at a loss to apply times or
dates to significant events in their lives." State v.
D.B.S., 700 P.2d at 634.
We have stated that what is important is the capacity
to remember the occurrence and the ability of the witness to
relate her impressions of what occurred. State v. Howie
(Mont. 1987), 744 P.2d 156, 44 St.Rep. 1711. S.A.'s testimo-
ny is consistent with her prior reports of the incidents and
is supported by Dr. Jarvis' testimony. This shows her capaci-
ty to remember the occurrence and her ability to relate her
impressions. In State v. A.D.M. (Mont. 19851, 701 P.2d 999,
42 St.Rep. 916, a five-year-old was held to be competent
because her testimony was uniform with her prior reports and
was confirmed with the testimony of a psychologist.
Although appellant argues that the inconsistencies in
S.A.'s testimony are indicative of her incompetency, we held
in Phelps, 696 P.2d at 453, that "the inconsistencies of [the
victim's] perception of where he was do not affect his compe-
tence." The record shows that S.A. could not answer inqui-
ries of where she lived or what she was doing in 1982 and
1983. However, when asked where she lived or what she was
doing when she was four years old, she had a more specific
time frame in which she as a child could work and could
answer the questions clearly.
 In addition, we have ruled that inconsistencies go to
the credibility of the evidence, the weight of which is
decided by the jury. Rogers, 692 P.2d 2, 5; State v. Shambo
(1958), 133 Mont. 305, 322 P.2d 657, 659.
Witness competency is within the discretion of the
trial court. D.B.S., 700 P.2d at 636; Phelps, 696 P.2d at
453; Rogers, 692 P. 2d at 5. The judge in this case did not
abuse his discretion in deciding that S.A. understood her
duty to tell the truth and had the ability to clearly cornmu-
nicate her accounts of the events in question.
Appellant, though, argues that S.A. did not understand
the duty to tell the truth. Counsel for the defendant asked
S.A. when she discovered the difference between the truth and
a lie. Her response was that she did not know. This ques-
tion is a difficult question for any adult to answer. It
would be even more rare for a child to know when she learned
the difference between the truth and a lie.
In order to show that S.A. did not know the difference
between the truth and a lie, appellant quoted a portion of
S.A.'s deposition.
Q. [By Mr. Rice] Is there a reason for
telling the truth?
A. Yes.
Q. What's the reason for telling the
truth? (No response) Do you believe in
God?
A. Yes.
Q. Okay. And does God have anything to
do with you telling the truth?
A. Yes.
Q. What does God have to do with that?
A. I don't know.
In citing this testimony counsel for the defendant contends
that S.A. does not know what it means to tell the truth.
However, counsel neglected to call attention to the state-
ments made immediately prior to this testimony:
Q. [By Mr. Rice] Okay. Now do you
know what it means to tell the truth?
A. Yes.
Q. What does it mean to tell the truth?
A. To tell what really happened.
Counsel also failed to cite the testimony which continued
after the referred-to passage in appellant's brief:
Q. Okay. Does God care if you tell the
truth?
A. Yes.
Q. And do you wish to please God?
A. Yes.
Q. Okay. What do you think happens if
you don't tell the truth?
A. You won't be resurrected.

Q. Okay. Do you get in trouble for not
telling the truth, not telling the truth
at school.
A. Yes.
Q. What happens if you don't tell the
truth at school?
A. You have to go to detention.
Q. What is detention?
A. You have t.o stay in in recess.
 Q. And do you ever--would you get in
trouble at home for not telling the
truth?
A. Yes.
Q. What happens if you don't tell the
truth?
A. You have to go to bed.
In addition, Dr. Jarvis testified that in his opinion
S.A. knew the difference between the truth and a lie.
[By Dr. Jarvis] In my opinion she could
clearly distinguish between the truth
and a lie.

Her telling me at times that she talked
to her mother, and finding out, indeed,
she had talked with her mother about
those kinds of things.
These passages indicate that S.A. understood what the
truth was and that there were consequences if she told a lie.
After hearing this testimony, the trial court judge was
satisfied that S.A. had the ability to discern the difference
between the truth and a lie.
Appellant's counsel also makes allegations that in
addition to an ability to appreciate telling the truth, S.A.
had been coached to say that the sexual abuse had occurred.
However, Dr. Jarvis testified that he saw no signs of coach-
ing. He stated that her story was consistent over time and
when he asked who had told her to say what she had said, S.A.
told Dr. Jarvis that no one had told her to say those things.
The District Court properly used its discretion in
deciding that S.A. was competent to testify.
 The second issue on appeal is whether the District
Court properly permitted the prosecution to use leading
questions with the eight-year-old victim.
Rule 611(c) of the Montana Rules of Evidence reads in
pertinent part:
Leading questions should not be used on
the direct examination of a witness
except as may be necessary to develop
his testimony.
Appellant objected to the leading nature of the prose-
cution's questions to the victim, S . A . However, in Bailey v.
Bailey (1979), 184 Mont. 418, 421, 603 P.2d 259, 261, we held
that "whether or not [leading questions] will be allowed is a
matter for the trial court's discretion." In Bailey the
court allowed leading questions where the child was
withdrawn.
In the case on appeal, Dr. Jarvis testified that S . A .
and other children who are involved in sexual abuse cases, do
not want to talk about the incident. S . A . Is videotaped
deposition clearly corroborates Dr. Jarvis' expert opinion
that child victims of sexual abuse are reticent witnesses.
The trial court also noted in its memorandum on the competen-
cy issue, "it is noticeably difficult for her to testify
about her experiences, a circumstance which is understandable
and not unusual for a child witness in this type of case."
We find that there was no abuse of discretion by the District
Court for allowing leading questions by the prosecution.

The third issue before this Court is whether the testi-
mony by T.M. of prior acts was properly admitted by the trial
judge.
T.M., a stepdaughter of Eiler's in a previous marriage,
testified that she had been sexually abused by Eiler
frequently between 1973 and 1977. In her testimony she
stated that in 1973, when she was nine, Eiler asked T.M. to
come to his room. He told her to take off her pajamas and
then felt her breasts and vagina and told her to touch his
penis. It was her testimony that she did so in fear that
Eiler would hurt her mother if she did not cooperate. T.M.
stated that this incident and others occurred when her mother
was working nights from 10:OO p.m. to 5:00 a.m. and Eiler had
opportunity to be alone with her. In subsequent incidents
while on hunting trips alone with T.M. or in a laundry room
where Eiler worked, T.M. was forced to have intercourse with
him. These acts continued from 1973 to 1977 when Eiler and
J.E., T.M.'s mother, divorced.
Appellant objected to the preceding testimony on the
ground that it was in violation of Rule 404 ( b ) , M.R.Evid.,
which states:
(b) Other crimes, wrongs, acts. Evi-
dence of other crimes, wrongs, or acts
is not admissible to prove the character
of a person in order to show that he
acted in conformity therewith. It may,
however, be admissible for other purpos-
es, such as proof of motive, opportuni-
ty I intent, preparation, plan
I
knowledge, identity, or absence of
mistake or accident.
Appellant contends that the effect of the prior acts evidence
is prejudicial to the defendant because it was offered to
show Eiler's depravity or criminal propensities. However,
respondent made it clear that the evidence was being offered
to show plan, motive, or opportunity as is permitted by the
rule.
In State v. Just (1979), 184 Mont. 262, 602 P.2d 957,
we set forth procedures which must be strictly followed when
evidence of other crimes is to be offered as testimony.
 (a) Evidence of other crimes may not be
received unless there has been notice to
the defendant that such evidence is to
be introduced. . . . Additionally, the
notice to the defendant shall include a
statement as to the purposes for which
such evidence is to be admitted.
(b) At the time of the introduction of
such evidence, the trial court shall
explain to the jury the purpose of such
evidence and shall admonish it to weigh
the evidence only for such purposes.
(c) In its final charge, the court
should instruct the jury in unequivocal
terms that such evidence was received
only for the limited purposes earlier
stated and that the defendant is not
being tried and may not be convicted for
any offense except that charged, warning
them that to convict for other offenses
may result in unjust double punishment.
Just, 602 P.2d at 963-964.
Prior to trial, the prosecution filed a notice of
intent to rely on prior acts. The District Court admonished
the jury before T.M. testified that the evidence they were
about to hear was to be considered only to show plan, motive,
or opportunity. Plus, Instruction No. 13 was submitted which
reminded the jury that the evidence of prior acts was offered
only to show proof of motive, plan, or knowledge. By adher-
ing to the Just rule, the prosecution assured that the defen-
dant would not be prejudiced by the evidence of prior acts.
Just also provided a four-point test to which the
evidence of prior acts is applied, three parts of which were
first identified in State v. Jensen (1969), 153 Mont. 233,
239, 455 P.2d 631, 634, with the addition of a fourth part
from Pule 403, M.R.Evid.
1. Similarity of crimes or acts;
 2. Nearness in time; and
3. Tendency to establish a common
scheme, plan, or system; and
4. The probative value of evidence is
not substantially outweighed by the
prejudice to the defendant.
Just, 602 P.2d at 961.
We conclude that the District Court considered all four
elements and properly admitted testimony of T.M. regardi-nq
defendant's other crimes.

1. Similarity of crimes or acts.
Appellant, in his brief, contends that the acts are not
similar, without articulating why they are not. The crime
charged here is sexual abuse of a stepdaughter. The prior
acts testified to by T.M. were also sexual acts with Eiler
when she was his stepdaughter. Both girls were minors when
they were forced to engage in the sexual activities. Appel-
lant points out that S.A. was subject to "touching" and T.M.
testified that she had unwillingly engaged in intercourse and
that these acts are not similar. However, the first acts to
which T.M. was subject by Eiler were acts of "touching" also.
In addition, we established in State v. Tecca (Mont. 1986),
714 P.2d 136, 43 St.Rep. 264, that the prior acts need not be
identical to the offense committed but be merely of "suffi-
cient similarity." Tecca was applied to State v. Long (Mont.
1986), 726 P.2d 1364, 43 St.Rep. 1948. The defendant in Long
was convicted of sexual abuse for "rubbing" the clothed
bottom of a five-year-old. This was deemed sufficiently
similar to the prior acts of "rubbing" the genitals of two
four-year-olds after their pants had been removed. The acts
here of sexual contact with stepdaughters are sufficiently
similar.
 2. Nearness in time.
Appellant contends that the time between the offense
charged and the prior acts, five years, is too remote in
time. To support this allegation appellant cites State v.
Hansen (1980), 187 Mont. 91, 608 P.2d 1083, where we allowed
a period of two and one-half years between acts, and State v.
Stroud (Mont. 1984), 683 P.2d 459, 41 St.Rep. 919, in which
testimony of prior acts three and one-half years previously
was admitted. On the other hand we have made reference to
putting a cap on the time frame between acts in State v.
Tecca (Mont. 1986), 714 P.2d 136, 43 St.Rep. 264, where the
Court stated that a single act nine years before would be too
remote.
The five-year span involved here is significant to show
that defendant engaged in sexual activities with his step-
daughters only when he had the opportunity. Eiler had sexual
contact with T.M. between 1973 and 1977, when he was married
to her mother, J.E. The sexual activities with S.A. occurred
when he was married to Sharon, and S.A. was his stepdaughter,
in 1982 and 1983. He did not have parental control over a
minor girl between 1977 and 1982 and therefore did not have
the opportunity. Lack of opportunity in this case causes the
actual time period between the two incidents to be less
significant. State v. T.W. (Mont. 1986), 715 P.2d 428, 43
St.Rep. 368.
In State v. T.W. the defendant was convicted of sexu-
ally assaulting his developmentally disabled sister. Evi-
dence of similar sexual abuse was presented, but the
defendant objected on the grounds that the evidence was too
remote in time. We held that the evidence was not too remote
because during the four-year interval in which the defendant
did not sexually ahuse his sister he was in the military. He
engaged in sexual contact with her prior to enlisting in the
military and at the first opportunity after being discharged.
In this case, Eiler engaged in sexual abuse during the
time that he had parental control over a stepdaughter. These
dates were 1973 through 1977 and 1982 through 1983.
It was held in State v. Fitzpatrick (1980), 186 Mont.
187, 606 P.2d 1343, and State v. Doll (Mont. 1985), 692 P.2d
473, 42 St.Rep. 40, that remoteness affects credibility of
the evidence and not its admissibility. The evidence here
was properly admitted for the jury to weigh.

3. Tendency to establish a common scheme,
plan, or system.
The evidence testified to by T.M. was brought forward
by the prosecution to show motive, plan, or knowledge, as
required by the procedures in Just. Rule 404 (b), M.R.Evid.,
codifying the rule pertaining to admissibility of prior acts,
recognizes some allowed exceptions and includes in its list,
opportunity. In this case defendant engaged in sexual contact
when the opportunity presented itself and the evidence shows
motive to engage in sexual contact with minor girls.
Eiler coerced S.A. to participate in sexual touching on
three occasions. The first was when they were alone on the
tractor. The second and third times occurred when S.A.'s
mother Sharon was in Washington for treatment of alcoholism
and Eiler and S.A. were alone in his bedroom. These were the
first opportunities Eiler had to engage in sexual contact
with a stepdaughter since 1977 when he divorced J.E. Between
1973 and 1977, when T.M. was Eiler's stepdaughter, acts of
sexual contact and intercourse occurred when the two were
alone either when T.M.'s mother worked nights or when Eiler
and T.M. went hunting.
 Like the defendant in State v. T.W., who sexually
assaulted his sister before and after his military tour,
Eiler forced sexual contact with his stepdaughters when given
the opportunity. Rule 404(b) provides that evidence of prior
acts is admissible for a showing that the defendant acted
when he had the opportunity. The evidence in the case on
appeal shows that Eiler acted only when he had parental
control over a stepdaughter. Only when he could threaten
punishment was he able to force the girls into engaging in
sexual relations. T.M. testified that she engaged in the
touching and sexual intercourse because she was afraid that
Eiler would hurt her mother if she did not obey his commands.
S.A. testified that Eiler threatened a spanking if she did
not cooperate.
There is also some showing of motive behind Eiler's
actions. T.M.'s testimony showed that each time Eiler mar-
ried he had control over a stepdaughter and sexually abused
her when they were alone. The motive behind this is Eiler's
sexual interests in young girls. Just requires only a "ten-
dency" to establish a common scheme, plan, or system. Just,
602 P.2d at 961. This tendency is shown by Eiler's actions.
In Just we stated that the prior acts "testified to
occurred between the defendant and the victim; all transpired
when the two were alone; and all involved essentially identi-
cal behavior on the part of the defendant." Just, 602 P.2d
at 961.
In the instant appeal, although the victims were dif-
ferent, the acts transpired when Eiler was alone with each
girl, and the acts involved comparable behavior on the part
of the defendant. The prior acts here are sufficiently
similar to the acts with which Eiler was charged to show
motive behind the actions of the defendant, as required by
Rule 404 ( b ) , M.R.Evid.
 In State v. Long (Mont. 1986), 726 P.2d 1364, 43
St.Rep. 1948, the District Court allowed testimony of prior
crimes where the defendant touched several little girls in
the vaginal area or on the upper thighs or "rubbed one girl's
bottom. "
. . . the State introduced evidence of
the prior act to show a common scheme
plan or design in the defendant's con-
duct. Because of the subtle nature of
child abuse, we find the evidence of
prior acts is similar enough to the acts
involved to justify its admission.
Long, 726 P . 2 d at 1367. A common plan is evident through a
showing that Eiler had parental control over each stepdaugh-
ter and maintained continual control through threats of
punishment. Therefore, we would also hold that the acts show
a common scheme, plan or design, apparent from Eiler's acts
of sexual contact with S.A. and T.M. We hold that the evi-
dence of prior acts showed opportunity and motive.

4. The probative value of the evidence is not
substantially outweighed by the prejudice to defendant.
This Court has established that anytime evidence of
prior acts is submitted to show plan, scheme, or design there
will obviously be some prejudicial effect. Just, 602 P.2d at
961. However, if the evidence shows that the acts were
similar, that they were near in time, and that they do in
fact show a tendency to establish a common plan, scheme, or
design, these factors combine to give great probative weight
to the evidence of prior acts. Under the discretion of the
District Court the prejudice was weighed against the proba-
tive effect. The procedural safeguards of Just were followed
assuring less likelihood of prejudice to the defendant.
Although T.M.'s testimony is prejudicial to Eiler, "[gliven
the elusive nature of sexual assault against very young
children, [the witness's] testimony was probative of the
State's theory that defendant's actions were not an isolated
event." Long, 726 P.2d at 1367-68. We hold that the evidence
of prior acts was properly admitted by the District Court.

The fourth issue is whether the District Court properly
ruled that Dr. Jarvis, S.A.'s psychologist, was a qualified
expert and that his testimony was permissible. After Dr.
Jarvis testified, defense counsel moved the court to strike
his testimony on the grounds that (1) he was not a qualified
expert in child psychology, and (2) his opinion was not
based on medical certainty.
Appellant contends that Dr. Jarvis is not a qualified
expert in the field of child psychology simply because Dr.
Jarvis holds no degree in child psychology. The trial court,
though, determined that he was sufficiently qualified. The
appropriate rule of evidence, Rule 702 M. R. Evid, states:
If scientific, technical, or other
specialized knowledge will assist the
trier of fact to understand the evidence
or to determine a fact in issue, a
witness qualified as an expert by knowl-
edge, skill, experience, training, or
education may testify thereto in the
form of an opinion or otherwise.
Dr. Jarvis holds a Ph.D. in psychology and a masters degree
in counseling and guidance. Seventy percent of his practice
involves children who allegedly have been sexually abused.
He testified that he has attended numerous programs which
focused on child psychology and sexual abuse, and he is the
clinical director of a sexual abuse program in Havre, Mon-
tana. Taking these credentials into consideration, the
District Court determined that he was a qualified expert.
 The determination that a witness is an expert witness
is largely within the discretion of the trial court and such
determination will not be disturbed on appeal absent a show-
ing of abuse of discretion. State v. Berg (Mont. 1985), 697
P.2d 1365, 42 St.Rep. 518; State v. Geyman (Mont. 1986), 729
P.2d 475, 43 St.Rep. 2125; In the Matter of J.W.K. (Mont.
1986), 724 P.2d 164, 43 St.Rep. 1483. In addition, the
degree of an expert's qualification goes to the weight of the
testimony decided by the jury rather than its admissibility.
Berg, 697 P.2d at 1367; Matter of J.W.K., 724 P.2d at 166.
The trial judge properly ruled that Dr. Jarvis is an
expert qualified to testify in cases of sexual abuse of
children.
Appellant contends that Dr. Jarvis' diagnosis was
performed in preparation of trial. However, S.A. was brought
to Dr. Jarvis by her mother before the mother had any knowl-
edge of possible sexual abuse. Dr. Jarvis stated, "I did no
preparation for any kind of legal preparation or going to
Court, which is typically something I do when I am currently
working with a child."
Appellant contends, in objecting to Dr. Jarvis' testi-
mony, that his opinion was not based on medical certainty.
He states that Dr. Jarvis could not say specifically what
traumatic event caused S.A.'s behavior. Dr. Jarvis, though,
stated that he believed S.A. had been sexually abused. The
weight of this testimony is to be decided by the jury.
Appellant cites State v. Brodniak (Mont. 1986), 718
P.2d 322, 43 St.Rep. 755, in support of his contention that
the testimony of Dr. Jarvis was admitted improperly for the
purpose of testifying to the veracity of S.A. 's testimony.
However, appellant failed to make this objection at trial.
If counsel fails to raise an issue at trial, the issue cannot
be raised fox the first time on appeal. Long, 726 P.2d
1364; State v. Patton (1979), 183 Mont. 417, 600 P.2d 194.
The appellant failed to make a timely objection at trial and
so cannot raise the issue here.
Appellant also cites Brodniak in support of his objec-
tion to Dr. Jarvis' testimony on the grounds that Dr. Jarvis
was not an appropriate medical physician to give testimony.
Brodniak stands for the proposition that a psychologist
expert witness is limited in his opinion testimony. In
Brodniak, it was held by this Court that an expert witness
may testify as to his opinion of whether the victim was
suffering from rape trauma syndrome, but the expert is not
allowed to opine whether he believed the witness is telling
the truth or whether he believed the story that the victim
was narrating. Brodniak, 718 P.2d at 329.

The fifth issue on appeal here is whether the evidence
was sufficiently substantial to support the jury verdict
beyond a reasonable doubt. In Jackson v. Virginia (1979),
443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, the standard of
review is whether:
[alfter viewing the evidence in the
light most favorable to the prosecution,
any rational trier of fact could have
found the essential elements of the
crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. at 319. State v. Rodriguez
(Mont. 1981), 628 P.2d 280, 283, 38 St.Rep. 578F, 5781; State
v. Geyman (Mont. 1986), 729 P.2d 475, 476, 43 St.Rep. 2125,
2126.
Appellant contends that the testimonies of S.A. and
T.M. were not sufficient for the jury to find guilt beyond a
reasonable doubt, claiming conjecture and speculation.
However, it was ruled by the District Court that S.A. was a
competent witness and clearly gave testimony of abuse by
Eiler. Her testimony was consistent with what she had told
Dr. Jarvis when he diagnosed her. Moreover, T.M. corroborat-
ed S.A. 's testimony with accounts of prior acts which tended
to show opportunity and motive behind Eiler's forced sexual
contacts.
The sexual assault statute, § 45-5-502(1), MCA, pro-
vides that:
A person who knowingly subjects another
not his spouse to any sexual contact
without consent commits the offense of
sexual assault.
Section 45-2-101(60), MCA, defines sexual contact as:
[Alny touching of the sexual or other
intimate parts of the person of another
for the purpose of arousing or gratify-
ing the sexual desire of either party.
S.A. testified that Eiler touched her "private parts"
and instructed her to touch his "private parts." This testi-
mony clearly shows that any rational trier of fact could have
found the essential elements of sexual assault against S.A.
beyond a reasonable doubt.
Affirmed.

We concur:

J'ustices
Mr. Justice R. C. McDonough, dissenting.

I dissent as to the third issue of whether the
testimony of J.M. as to prior criminal acts was properly
admitted by the trial court.
The general rule is that evidence of other crimes must
be excluded. Rule 404 (b), M.R. Evid. In State v. Tiedemann
(1961), 139 Mont. 237, 362 P.2d 529, we said:
The general rule should be strictly
enforced in all cases where applicable,
because of the prejudicial effect and
injustice of such evidence, and should
not be departed from except under
conditions which clearly justify such a
departure. The exceptions should be
carefully limited, and their number and
scope not increased.
Tiedemann, 362 P.2d at 531.
The reason for the rule is that prior bad acts are
usually considered irrelevant and prejudicial. They tend to
show defendant is a bad person or has criminal propensities,
and on that basis juries may find that defendant committed
the crime actually charged. In other words, they do not
prove the crime charged, but only go to defendant's character
or propensities. Also, as a matter of policy, they are
inadmissible because there is a tendency for the trier of
fact to give excessive weight to such acts, and to justify
defendant's punishment irrespective of whether defendant is
guilty of the present charge. As said in State v. Jensen
(1969), 153 Mont. 233, 238, 455 P.2d 631, 633:
"'[tlhat when a defendant is put on trial
for one offense, he should be convicted,
if at all, by evidence which shows that
he is guilty of that offense alone;
.. . 1 II
 There are exceptions to the general rule prohibiting
introduction of prior bad acts. Rule 404(b), M.R.Evid. They
may be admitted, but only for the purpose of showing motive,
opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident.
The majority here holds that the evidence of the prior
acts showed opportunity and motive. Motive is not really an
issue in this case. It is self-evident that the motive for
commission of these acts was sexual gratification.
Opportunity is also not an issue because anyone in a parental
capacity would have plenty of opportunity to commit this type
of crime. Moreover, the State appears to have relied on the
common plan exception for relevance on the bad acts issue,
not opportunity.
Beyond the procedural requirements of notice,
explanations, warnings and instructions, State v. Just
(1979), 184 Mont. 262, 602 P.2d 957, set out a four-point
test: similarity of crimes or acts; nearness in time;
tendancy to establish a plan; and the probative value of
evidence as weighed against its prejudice to defendant.
As to similarity, the act charged here was that of
touching the genitalia by both the victim and the defendant
and it is the same as some of the acts with J.M., but there
is nothing distinguishing. The dominant prior acts with J.M.
were the crimes of sexual intercourse without consent with a
minor. There is no unique similarity between the prior acts
and the case at bar other than the fact that both are sex
crimes. Sexual intercourse without consent is a much more
serious crime than sexual assault. See §§ 45-5-502 and 503,
MCA. The former is a sex crime, but it is not the same as
the latter, just as all larcenies are not the same. In order
to tie the defendant into a plan or method of operation,
there must be something distinguishable and identifiable.
Otherwise the other acts are not relevant and material.
As to nearness in time, over five years elapsed between
the last act with T.M. and the first with S.A. There is no
continuous series of acts tending to show intentional plan by
defendant. In State v. T.W. (Mont. 1986), 715 P.2d 428, 43
St.Rep. 368, the interval was four years, and the prior acts
were with the same victim. Because they were with the same
victim, the acts in T.W. were more readily admissible. The
separate crimes in this case were not a part of the history
of the case, nor did they have any integrated tie-in. They
were entirely separate, with some even allegedly committed in
different states.
To establish a common plan, the "plan" must be a
general or larger course of action. The State's position is
that Eiler's plan was to commit sexual assault on a
stepdaughter when he had an opportunity while the mother was
out of the household, or when he and the victim were away
from the household. This is inherently weak. It implies
that one of the reasons he married S.A.'s mother was because
she had a minor daughter. There is nothing more here than
the general acts of a pedophile when he would have
opportunity.
The probative value of T.M.'s testimony as to the crime
charged is outweighed by its prejudice to the defendant. The
evidence meeting each of the first three tests of the Just
rule is weak. The testimony of S.A., the victim, is not the
strongest because of her age and was bolstered Sy the
testimony of the psychologist.
Other evidence of defendant's guilt is not so
overwhelming as to bend the general rule on the
inadmissibility of evidence of other crimes. The lack of
strength in the evidence of the crime charged also
contributed to the prejudicial effect of the prior crimes.
The defendant in this case should not be punished for the
alleged crimes against T.M. on which the statute of
limitations has run.
Another reason that caution should be employed in the
admissibility of evidence of other crimes is that it opens up
other issues which by inference or direct action or comment
would greatly lessen a defendant's rights against
self-incrimination as to the crime actually charged.
If such evidence is ruled admissible to show a plan,
scheme, etc., then it goes to the merits of the main charge,
and if defendant testifies, denying and contesting such
evidence of other crimes, defendant is now into the merits of
the main charge and defendant has forfeited his or her
constitutional Fifth Amendment protection as to the main
charge. See McGahee v. Massey, (1.lth Cir. 1.982), 667 F.2d
1357, 1362.
The testimony of T.M. was prejudicial to the defendant
under these circumstances. It was an abuse of discretion to
admit such testimony and I would reverse defendant's
conviction and remand for new trial.

Justices John C. Sheehy and William E. Hunt join in the
foregoing dissent.
n