No. 89-331
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
WILLIAM JACK HALL,
Defendant and Appellant.
APPEAL FROM: ~istrictCourt of the Twelfth
In and for the County of Hill,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Daniel A. Boucher, Altman & Boucher, Havre, ~ontana
For Respondent:
Marc Racicot, Attorney General, John Paulson,
Assistant Attorney General, Helena, Montana
David G. Rice, Hill County Attorney, Patricia
Jensen, Deputy County Attorney, Havre, Montana
Submitted: May 10, 1990
e Decided: August 20, 1990
Filed:
Clerk
Justice John C. Sheehy delivered the opinion of the Court.
A jury in the Twelfth Judicial District, Hill County, found
defendant William Jack Hall guilty of sexual assault. He now
appeals his conviction. We affirm.
The defendant raises four issues on appeal:
1. Whether the District Court erred in denying defendant's
motion to dismiss for lack of a speedy trial.
2. Whether the District Court properly admitted defendant's
statement concerning his acts at the scene of the crime.
3. Whether the District Court properly refused defendant's
proposed jury instruction concerning eyewitness identification.
4. Whether the District Court improperly allowed expert
testimony.
On July 21, 1988, six-year-old D.B. went to Havre-Hill County
Public library with her mother and two brothers. After walking
downstairs with the children to the children's section so that D.B.
and her brothers could choose some books to check out for
themselves, D.B.'s mother went upstairs to attend a meeting.
While D.B. was looking at books in the children's section,
defendant approached D.B. and asked her to follow him into a
periodical storage room. While inside the room, Hall had D.B. sit
down on a chair. Hall then showed his penis to D.B. and touched
D.B. Is leg with his penis. Hall asked D.B. to pull down her pants,
but she refused. Defendant than reached his hand up inside D.B.'s
shorts and touched her vagina and buttocks.
That evening D.B. told her mother about the incident in the
library. D.BVs mother reported the incident to officer Ross
Magnuson of the Havre Police Department the following day.
Magnuson examined the periodical room and found three hairs and a
dried substance on the floor.
On July 30, 1988, Magnuson interviewed Hall. Hall initially
stated that he had not been in the library for quite a while. When
Magnuson informed Hall of the hair evidence found at the scene and
that the police had obtained a search warrant to collect samples
of his hair to compare with the evidence at the scene, Hall changed
his story. He explained that he had been in the library the day
before the incident, had gone into the same periodical storage
room, and became aroused by a picture he had found in a magazine.
Hall stated that he then masturbated in the storage room.
Subsequent analysis by both the F.B.I. and Hall's expert
determined, however, that hairs found in the periodical storage
room could not match Hall's hair sample.
On August 1, 1988, the State charged Hall, by complaint, with
felony sexual assault. Section 45-5-502(1), MCA. The Justice of
the Peace initially set bail at $7,500. After receiving leave to
file an information, on August 19, 1988, the State filed an
information alleging Hall sexually assaulted D.B. On August 26,
1988, Hall was arraigned in District Court, at which time the court
reduced his bail to $4,000. Hall was unable to post bail and
remained incarcerated.
Subsequent to Hall's arraignment, the District Court set the
trial for October 26, 1988. On October 6, 1988, the State moved
to continue the trial date because the results of the trace
evidence had not yet been received and Hall's expert would have
insufficient time to examine the evidence. The court granted the
State's motion. Later, the District Court reset the trial for
December 12, 1988. Next on December 8, 1988, the parties entered
a stipulation to continue the December 12, 1988 trial date. The
stipulation was based on two grounds: 1) Hall's expert had
recently suffered serious heart ailments and was temporarily
unavailable and 2) the State had recently endorsed an expert
witness for which there had not been any opportunity for exchange
of discovery. Once again, on January 5, 1989, the District Court
rescheduled the trial for February 22, 1989.
On January 26, 1989, Hall filed a motion in limine with the
District Court requesting prohibition of the use of statements by
Hall to officer Magnuson. The District Court granted Hall's
motion, and ordered that the State could introduce evidence of
defendant's presence in the library but not of defendant's acts as
admitted in his statement. The District Court reasoned that
evidence of those acts had little probative value, and were
inflammatory and prejudicial.
Next, on February 16, 1989, Hall filed a motion to dismiss,
based upon a failure to provide a speedy trial. The District Court
denied Hall's motion.
The trial commenced on February 22, 1989. At trial D.B. and
her brother J.B., age nine, identified Hall as the offender. Hall
chose not to testify at trial. On February 25, 1989, a Hill County
jury found Hall guilty as charged. Hall now appeals his
conviction.
I.
Whether the District Court erred in denying defendant's motion
to dismiss for lack of a speedy trial.
The right of any defendant to a speedy trial is guaranteed by
the federal and Montana Constitutions. U.S. Const., Amend. VI;
Art. 11, 5 24, Mont. Const.; State v. Fife (Mont. 1981), 632 P.2d
712, 714.
The United States Supreme Court in Barker v. Wingo (1972), 407
U.S. 514, 530, 92 S.Ct 2182, 2192, 33 L.Ed.2d 101, 117, established
a four-pronged balancing test to determine speedy trial claims.
In Montana, when a speedy trial issue is presented to the District
Court, the court must resolve the issuing by applying the balancing
test of Barker. Briceno v. District Court (1977), 173 Mont. 516,
518, 568 P.2d 162, 163-64. The four factors to be evaluated and
balanced are:
1) length of delay;
2) reason for delay;
3) assertion of the right by defendant; and
4) prejudice to the defendant.
Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117;
Briceno, 568 P.2d at 164.
In speedy trial analysis, the length of delay acts a
"triggering1'mechanism and the other above enunciated factors need
not be examined unless presumptive prejudicial delay is present.
State v. Wombolt (1988), 231 Mont. 400, 402, 753 P.2d 330, 331;
State v. Armstrong (1980), 189 Mont. 407, 424, 616 P.2d 341, 351;
State v. Harvey (1979), 184 Mont. 423, 433, 603 P.2d 661, 667. If
the court finds the delay to be presumptively prejudicial, the
State has the burden of rebutting the presumption by providing a
reasonable explanation for the delay and showing that the defendant
was not prejudiced. Wombolt, 753 P.2d at 331; State v. Curtis
(Mont. 1990), 787 P.2d 306, 313, 47 St.Rep. 277, 283.
From the date of arrest on July 30, 1988, to the trial of
February 22, 1989, amounts to a delay of 207 days. The State
argues that we should deduct time attributable to Hall before
considering whether the delay was long enough to establish a
presumption. In Curtis, 787 P.2d at 313, we expressly overruled
this method of calculating the length of the delay:
. . . The parties' briefs exhibit some confusion
concerning at what point delay attributable to the
defendant should be considered. Some confusion is not
surprising considering the recent case law. Some cases
deduct time attributable to the defendant before
determining whether the delay was long enough to
establish a presumption of prejudice. Other cases did
not consider such delay until after the presumption of
prejudice had been established and dealt with it under
the second analytical element, the reason for the delay.
We believe that the second procedure is more appropriate.
The length of delay is considered twice in speedy trial
analysis. In the first instance, it acts merely as a
trigger to determine whether further inquiry is
warranted. If further inquiry is warranted, the length
of the delay is again considered as an inextricable
component of the second element, the reason for delay.
See Barker, 407 U.S. at 531, 92 S.Ct. at 2192, 33 L.Ed. 2d
at 117; United States v. Colombo (1st Cir. 1988), 852
F.2d 19, 24.
In this case, the delay of 207 days is sufficient to raise a
presumption of prejudice and require further inquiry. Fife, 632
P.2d at 714-15. (194 days). The State now has the burden of
providing a reasonable explanation for the delay and to show that
the defendant was not prejudiced by the delay. Curtis, 787 P.2d
at 314; Wombolt, 753 P.2d at 331.
We next examine the reasons for the delay. Hall contends that
the 207 days of delay should be credited against the State. We
disagree with Hall's contention. The District Court set Hall's
original date for October 26, 1988. On October 6, 1988, the State
moved to continue the trial date because the State had not received
the results of the trace evidence test. The District Court reset
the trial for December 12, 1988. The State, therefore, is
responsible for the delay up to December 12, 1988. Next, on
December 8, 1988, the State stipulated to Hall's motion to continue
the December 12, 1988 trial date. The parties1 stipulation was
based on two reasons:
1) Hall s expert witness suffered serious heart ailments
and had been unable to complete his evaluation of the
physical evidence.
2) The State had recently endorsed an expert witness for
which there had not been any opportunity for exchange of
discovery.
The District Court granted the motion, and vacated the
December 12, 1988, trial date. Later, the District Court reset the
trial for February 22, 1989. While the State is responsible for
the first delay of 135 days, both parties bear responsibility for
the delay caused by the December 8, 1988, stipulation.
The State concedes that Hall satisfied the third element by
moving to dismiss on speedy trial grounds on February 16, 1989.
The last factor relating to the right to a speedy trial is the
degree of prejudice suffered by the defendant. The degree of
prejudice is determined by considering the oppressiveness of the
pretrial incarceration , the anxiety and concern of the defendant,
and the impairment of the defense. State v. Shurtliff (1980), 187
Mont. 235, 240, 609 P.2d 303, 306.
Hall has alleged as prejudice that he was the victim of
oppressive pretrial incarceration, suffered anxiety and concern,
and his defense was impaired by the delay. The State's motion on
October 6, 1988, vacated the original trial date of October 26,
1988. The District Court rescheduled the trial for December 12,
1988. Obviously, the State's actions resulted in extending the
incarceration of Hall prior to trial. The blame for vacating the
next trial date, however, falls on Hall's shoulders. The parties
stipulated to a continuance of the December 12, 1988, trial date.
The continuance allowed Hall's expert to recover from a serious
heart ailment, and allowed both parties the opportunity for
exchange of discovery. In balance, therefore, we find Hall was not
the victim of oppressive pretrial incarceration by the State.
Next, nothing in the record substantiates Hall's claim of
suffering from "anxiety and concern.I1 Even if Hall had presented
some evidence of anxiety, the anxiety he suffered was not uncommon.
Curtis, 787 P.2d at 316. A certain amount of anxiety and concern
is inherent in being accused of a crime.I' Curtis, 787 P.2d at 316;
State v. Waters (1987), 228 Mont. 490, 494, 743 P.2d 617, 620;
State v. Chavez (1984), 231 Mont. 434, 444, 691 P.2d 1365, 1371.
Nor has Hall shown any factors which show his defense was impaired.
Thus, we find the defendant was not prejudiced by the delay.
Of the four factors we have considered, [n]o single factor
is determinative. Each facet of the analysis is weighed in light
of the surrounding facts and circumstance^.^^ Waters, 743 P.2d at
619. Considering these four factors and the record as a whole, we
find no excessive delay in bringing this case to trial. Thus, we
find no violation of Hall's right to a speedy trial.
11.
Whether the District Court properly admitted defendant's
statement concerning his acts at the scene of the crime.
When officer Magnuson confronted Hall with the fact that hairs
had been recovered at the scene of the assault, Hall gave a
statement to the officer in which he admitted going to the library
the day before the assault, entering the periodical storage room,
and masturbating. On January 26, 1989, Hall filed a motion in
limine to prohibit the State from using the statement.
The District Court ruled that the State could introduce
evidence of defendant's presence in the library but not of
defendant's acts as admitted in his statement. However, the
District Court noted in its order that the acts of the defendant
may become relevant and admissable to rebut evidence offered by the
defendant.
During the State's direct examination of officer Magnuson, the
State introduced Hall's admission that he had been in the library
periodical storage room the day before the assault. The officer
properly avoided any mention of Hall's acts while in the room.
During cross examination, however, Hall's counsel questioned
officer Magnuson extensively about Hall's statement and his reasons
for focusing the investigation solely on Hall. In particular,
Hall's counsel challenged the officer's failure to investigate
other possible suspects and gather other hair samples for
comparison. Following the cross-examination the State asked the
District Court to reconsider its earlier ruling and permit officer
Magnuson to testify fully about his reasons for suspecting Hall,
which included Hall's masturbation story. After hearing arguments
from both parties, the court realized that its earlier order had
prevented the officer from fully answering Hall's counsel's
questions concerning the investigation. The court then concluded
that Hall's story was relevant to the questions raised concerning
the focus of the investigation. After the court stated that it
would permit redirect examination concerning the masturbation
story, the court granted Hall's counsel permission to reopen his
cross-examination and bring the previously excluded story to the
jury's attention himself. The ~istrict Court then gave the
following cautionary instruction to the jury concerning the
evidence of masturbation.
... ladies and gentlemen, you are instructed that any
act of masturbation that may have been admitted to by the
defendant is not admitted into evidence to prove that the
defendant is guilty of the offense that he is charged
with. You are not to infer guilt of the present charges
from such evidence. Such evidence is not admitted to
prove the character of the defendant. You must not allow
such evidence to prejudice you against the defendant.
Such evidence is admitted solely for the purpose of
explaining officer Magnuson's conduct in his
investigation of this case and to aid you in any way that
it may or may not bear on any issue of knowledge,
identity or absence of mistake in this case ...
Now Hall contends that the District Court's ruling was
improper because the evidence had no probative value and was
obviously prejudicial and inflammatory, based upon Rule 402,
M.R.Evid. (excluding irrelevant evidence) and Rule 403, M.R.Evid
(allowing the exclusion of relevant evidence if its probative value
is substantially outweighed by the danger of unfair prejudice.)
It is well established that the District Court has latitude
of discretion in passing on the admissibility of evidence. State
v. Oman (1985), 218 Mont. 260, 263, 707 P.2d 1117, 1119; State v.
Gray (1983), 202 Mont. 445, 449, 659 P.2d 255, 257; State v.
Pendergrass (1978), 179 Mont. 106, 112, 586 P.2d 691, 694; State
v. Rollins (1967), 149 Mont. 481, 484, 428 P.2d 462, 464. The
District Court's determination of the admissibility of evidence is
subject to review only for abuse of discretion. Oman, 707 P.2d at
1119; State v. Stokes (1981), 195 Mont. 321, 325, 637 P.2d 498,
500; State v. Medicine Bull (1968), 152 Mont. 34, 45, 445 P.2d 916,
922. Rule 402, M.R.Evid. states in pertinent part: "Evidence which
is not relevant is not admissible."
Also, Rule 401, M.R.Evid., defines relevant evidence:
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 hearsay declarant.
The Commission states this test of relevance:
The test of relevance is whether an item of evidence will
have any value, as determined by logic and experience,
in proving the proposition for which it is offered . .
Usually, whatever naturally and logically tends to establish
a fact in issue is relevant and that which fails to qualify is not
relevant. Oman, 707 P.2d at 119. Monaco v. Cecconi (1979), 180
Mont. 111, 119, 589 P.2d 156, 161. Again, 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. McConnel- herew wick v. Cherewick
(1983), 205 Mont. 75, 79, 666 P.2d 742, 744.
Hall's own counsel, by challenging officer Magnuson1s failure
to investigate other possible suspects and gather other hair
samples during the investigation, made Hall's masturbation story
a relevant fact. The masturbation story explained the basis for
the investigating officer's focused suspicions and placed Hall at
the scene of the assault. Thus, we find no evidence in the record
to determine that the District Court abused its discretion in
determining the offered evidence was relevant.
Next, we must determine whether the above otherwise relevant
evidence is to be excluded because its probative value is
outweighed by the danger of unfair prejudice. Rule 403, M.R.Evid.
Under Rule 403, the determination of admissibility is within the
discretion of the trial judge and will not be disturbed unless
12
there is manifest abuse of discretion. Krueger v. General Motors
Corp. (Mont. 1989), 783 P.2d 1340, 1346, 46 St.Rep. 2114, 2120;
Zekels Distributing Co. v. Brown-Forman Corp. (Mont. 1989), 779
P.2d 908, 911; 46 St.Rep. 1678, 1681. Here, the probative value
of the evidence substantially outweighs the danger of unfair
prejudice. Introduction of Hall's statement to the police was
necessary after the cross-examination to explain why the Havre
police department focussed their investigation solely on Hall and
no other suspects. Furthermore, the District Court properly
tempered the prejudicial effect of Hall's testimony with a
cautionary instruction to the jury. The District Court did not
abuse its discretion in allowing this evidence.
Whether the District Court properly refused defendant's
proposed jury instruction concerningthe eyewitness identification.
The District Court rejected Hall's proposed jury instruction
no. 16 concerning eyewitness identification. Hall contends the
following instruction should have been given:
One of the most important issues in this case is the
identification of the defendant as the perpetrator of the
crime. The State has the burden of providing identity
beyond a reasonable doubt. It is not essential that the
witness himself be free from doubt as to the correctness
of his statement. However, you, the jury, must be
satisfied beyond a reasonable doubt of the accuracy of
the identification of the defendant before you may
convict him. If you are not convinced beyond a
reasonable doubt that the defendant was the person who
committed the crime, you must find the defendant not
guilty.
Identification testimony is an expression of belief or
impression by the witness. Its value depends on the
opportunity the witness had to observe the offender at
the time of the offense and to make the reliable
identification later.
In appraising the identification testimony of a witness,
you should consider the following:
(1) Are you convinced that the witness had the capacity
and an adequate opportunity to observe the offender?
Whether the witness had an adequate opportunity to
observe the offender at the time of the offense will be
affected by such matters as how long or short a time was
available, how far or close the witness was, how good
were lighting conditions, whether the witness had had
occasion to see or know the person in the past.
(2) Are you satisfied that the identification made by
the witness subsequent to the offense was the product of
his own recollection? You may take into account both the
strength of the identification, and the circumstances
under which the identification was made.
If the identification by the witness may have been
influenced by the circumstances under which the defendant
was presented to him for identification, you should
scrutinize the identification with great care. You may
also consider the length of time that lapsed between the
occurrence of the crime and the next opportunity of the
witness to see defendant, as a factor bearing on the
reliability of the identification.
( 3 ) You may take into account any occasions in which the
witness failed to make an identification of defendant,
or made an identification that was inconsistent with his
identification at trial.
(4) Finally, you must consider the credibility of each
identification witness in the same way as any other
witness, consider whether he is truthful, and consider
whether he had the capacity and opportunity to make a
reliable observation on the matter covered in his
testimony.
I again emphasize that the burden of proof on the State
extends to every element of the crime charged, and this
specifically includes the burden of proving beyond a
reasonable doubt the identity of the defendant as the
perpetrator of the crime with which he stands charged.
If, after examining the testimony, you have a reasonable
doubt as to the accuracy of the identification, you must
find the defendant not guilty.
Hall cites for support--and drew the above proposed
instruction from--United States v. Telfaire (D.C. Cir. 1972), 469
F.2d 552. In Telfaire, a single eyewitness was the only
incriminating evidence against the defendant. In the present case,
two witnesses identified Hall as the perpetrator of the assault.
Moreover, this Court in the past has not elected to adopt the
Telfaire instruction on eyewitness credibility. State v. Hart
(1981), 191Mont. 375, 393-94, 625 P.2d 21, 31, cert.den. 454 U.S.
827, 102 S.Ct. 119, 70 L.Ed.2d 102. In Hart, we rejected the
Telfaire instruction for the following reasons: 1) The substance
of the defendant's proposed instruction was adequately covered by
other instructions; and 2) The instruction is not appropriate when
there is more than a single eyewitness1 unsubstantiated testimony
which indentifies the offender.
The same reasoning we used in Hart, applies in this case.
First of all, the District Court correctly observed that the
substance of the instruction was adequately covered by other
instructions. The court instructed the jury concerning the
credibility of witnesses (Instructions Nos 1 and 7 ) , the State's
burden of proving defendant's guilt (Instruction No. 6 ) , the
competency and credibility of child witnesses (Instruction No. 11),
the effect of prior inconsistent statements on believability and
weight to be given the testimony of a witness (Instruction No. 13),
the elements of the crime (Instruction No. 14), and the proof
required to convict defendant of sexual assault (Instruction No.
18). If the instructions, reviewed as a whole, fully and fairly
present the law to the jury, the jury has been properly instructed.
State v. Graves (1981), 191 Mont. 81, 93-4, 622 P.2d 203, 210-11.
We determine that the jury was properly and adquately instructed
on the credibility of the witnesses.
We also believe that the circumstances of this case do not
mandate the allowing of Hall's proposed instruction. "Such an
instruction may be proper, if not mandatory, in certain cases. The
necessity of this type of instruction is especially clear when
there is only a single eyewitness' unsubstantiated testimony which
identifies the offender." Hart, 625 P.2d at 31. In this case
before us, there is more than a single eyewitness identification
of Hall. Two witnesses identified Hall as the perpetrator of the
crime. Accordingly, we find no error in the District Court's
refusal to give Hall's proposed Instruction No. 16.
IV.
Whether the District Court improperly allowed expert
testimony.
On February 9, 1989, the State filed a pretrial memorandum in
support of the admissibility of the expected testimony of Dr.
Lawrence Jarvis and Dr. Janet Hossack, two clinical psychologists
who had evaluated and treated D.B. On February 22, 1989, the first
day of trial, Hall's counsel made a motion in limine to exclude the
testimony of Drs. J a w i s and Hossack. The District Court denied
Hall's motion, and allowed the testimony of the doctors.
NOW, Hall argues his case was unfairly prejudiced by the
admission of the psychologistst testimony concerning D.B.'s
credibility. In particular, Hall complains that Dr. Hossack should
not have been permitted to testify that D.B.ls account of the
assault was consistent coherent storyv1or to offer an expert
opinion on the ability of children to be accurate eyewitnesses.
Hall also argues that Dr. Jarvis should not have been permitted to
testify that he thought D.B. was telling her story Itasit occurred
to herV1
and that D.B. "could pick out that individual that offended
her. "
In allowing the expert testimony of Drs. Hossack and Jarvis,
the District Court relied upon our decisions in State v. French
(1988), 233 Mont. 364, 760 P.2d 86; and State v. Geyman (1986),
224 Mont. 194, 729 P.2d 475. In Gevman, we held that expert
testimony is admissible "for the purpose of helping the jury to
assess the credibility of a child sexual assault victim. Gevman,
729 P.2d at 479. In French, we reaffirmed Gevman and held that the
District Court did not abuse its discretion by admitting a school
counselorls opinion as to whether the eight-year-old victim was
telling the truth. French, 760 P.2d at 89.
Hall acknowledges our past decisions but argues that they may
be distinguished from his case on the basis that in his case the
identity of the offender rather than the occurrence of the offense
was at issue. In support of his argument, Hall relies on our
decision in State v. J.C.E. (1988), 235 Mont. 264, 270, 767 P.2d
309, 313, where we said:
The identity of the alleged perpetrator in this case is
not a question requiring an expert opinion. Whether S
was the victim of incest is a question that might be
clarified by an expert opinion on her physical or mental
state. However, whether the evidence adduced by the
State establishes J.C.E. as perpetrator requires onlythe
common logic that is indeed well within the capacity of
a lay jury.
In J.C.E., the victim did not testify as to the identity of
her assailant, instead, the State attempted to have their expert
identify the defendant as perpetrator of the incest. This we found
unacceptable. In this case, neither Dr. Hossack nor Dr. Jarvis
attempted to identify Hall as the perpetrator of the sexual
assault. D.B. herself, unlike the victim in J.C.E., identified
Hall as her assailant. As the District Court properly noted,
Hall's counsel challenged D.B.'s credibility with respect to her
identification of Hall, raising questions concerning her ability
to identify and the possibility of undue influence. The doctors
were then allowed to testify, not to the identity of the defendant,
but whether D.B. was capable of identifying her offender. The
ultimate issue of identity of Hall still came from D.B. Is testimony
and not the testimony of the doctors. Thus, we find the District
Court did not err in admitting the expert testimony in this case.
In weighing the admissibility of expert testimony in child
molestation cases, the courts face an intrinsic problem in the
conflict between the evidence offered and the right of a defendant
to have the jury decide the guilt or innocence of the accused. The
test to be applied by district courts when faced with the problem,
and by this Court when it comes here, can be found in the Montana
Rules of Evidence. The doctors here are experts in their fields,
trained in psychology. As experts, their testimony is admissible
if it will help the jury to understand the evidence, or to
determine a fact in issue. Rule 702, M.R.Evid. The fact in issue
in this case was the identity of the transgressor. No party
disputes that the child was assaulted by somebody. A subissue of
the identity issue was the ability of a child of tender age to be
accurate in identification. Expert testimony on the subissue was
especially valuable here, as a matter helpful to the jury to
understand the evidence, and to determine a fact in issue, that is,
the identity of the transgressor. The testimony here eminently
qualifies under Rule 702.
We affirm.
We Concur: /