No. 89-158
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
STATE OF MONTANA,
Plaintiff and Respondent,
v.
KEVIN NEWMAN, -
-
- -
2
-
4
1
Defendant and Appellant. (- .,
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Leif B. Erickson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Antonia P. Marra; Bell & Marra, Great Falls, Montana
For Respondent:
Hon. Marc Racicot, Attorney General; Elizabeth L.
Griffing, Assistant Attorney General, Helena,
Montana
Ted 0. Lympus, Flathead County Attorney, Kalispell,
Montana
Submitted on Briefs: February 25, 1990
Decided: April 9, 1990
Filed:
Justice Diane G. Barz delivered the Opinion of the Court.
Kevin Newman appeals his conviction of sexual assault, 5 45-
5-502, MCA, and sexual intercourse without consent, 5 45-5-503,
MCA, in the District Court for the Eleventh Judicial District,
Flathead County. We affirm.
The charges against defendant stem from allegations made by
J.G., the seven-year-old daughter of his girlfriend. The precise
nature of the relationship between defendant and J.G.'s mother
(mother) and her children is unclear. The defendant stayed at
mother's residence on a sporadic basis. Defendant and mother also
had an infant child, C.G. J.G. and her brother, B.G., age eight,
were required to obey defendant and were disciplined by him, but
were never encouraged to think of him as a father figure. The
children's father (father) had remarried. J.G. told her stepmother
that defendant forced her to watch pornographic movies with him.
During a telephone call to her stepmother, J.G. asked to come stay
at her father ' s house. Prior to this incident, father and
stepmother had considered instituting an action to modify
residential custody of the children. Both father and stepmother
testified as to their concern about the children's living
conditions, including defendant's presence in mother's home.
The day after J.G. Is phone call, father and stepmother
contacted Flathead County Sheriff's Department detective Maxine
Lamb. Father and stepmother related their concerns about the
children's general welfare, including what they knew of defendant's
behavior toward J.G. Lamb recommended they contact Ann Anderson,
a social worker for the Montana Department of Family Services.
Anderson interviewed both J.G. and B.G. but did not disclose the
details of the interview to father or stepmother. It was only
after J.G.'s interview with Lamb that father and stepmother were
made aware of J.G.'s disclosures regarding defendant's sexual
contact with her.
Over the course of several months, during conversations with
her stepmother, counselors and the prosecutor, J.G. was able to
relate the details of defendant's assaults upon her. At the trial
she testified as follows:
Q. Do you remember telling your stepmother
. . . about some movies?
A. Yes.
Q. What were the movies that you told her
about?
A. They were about bad people with their
clothes off.
Q. Boys and girls?
A. Yes.
Q. And they didn't have any clothes on?
A. No.
Q. What were they doing?
A. They were, like, doing the same thing
[defendant] was doing to me.
Q. What was that?
A. Well, he put his finger in my private
part and then he put his penis in my
butt.
Q. id you ever s e e [ d e f e n d a n t ] t o u c h h i s
private part?
A. Yes.
Q. What d i d h e do?
A. H e was s h a k i n g it up and down.
Q. With h i s hand?
Q. What would happen?
A. Water would come o u t most of t h e t i m e .
Q. What d i d t h e w a t e r l o o k l i k e ?
A. I t was w h i t e .
Q. What would h e do a f t e r t h e w a t e r came
out?
A. W e l l , most o f t h e t i m e h e would j u s t - - h e
would g e t a t o w e l .
Q. And do what w i t h t h e t o w e l .
A. H e would wipe it o f f .
Q. Did h e ever make you s h a k e h i s p r i v a t e
p a r t up and down?
A. Yes.
Q. What would happen.
A. Water would come o u t .
Q. Did h e e v e r p u t h i s p r i v a t e p a r t anywhere
else?
A. I n m mouth.
y
Q. Can you tell us what you had to do?
A. I can't remember. I just had to keep it
in my mouth.
Q. What did he do when it was in your mouth?
A. He was moving it up and down.
Q. When you were watching these movies
. . . did it appear like any of the
people in the movies didn't like what was
happening to them?
A. I didn't like what was happening to them.
Q. When you and [your stepmother] were
crying and you finally told her about the
movies, why did you tell her?
A. Because I wanted him to stop.
Q. Why did you tell Maxine Lamb about the
sexual abuse? Why did you tell Maxine
what he did to you?
A. Because I wanted him to go to jail,
because I didn't want him to do it to
anybody else.
Q. Who were you thinking about when you were
concerned [about] him doing it to anybody
else?
A. My sister.
Q. [C.G.]?
A. (Witness nods head)
Q. Were you afraid that he might do it to
her?
A. (Witness nods head)
Q. Are you afraid of [defendant]?
A. (Witness nods head)
Defendant was charged by information with sexual intercourse
without consent in violation of 545-5-503, MCA. The District
Court later granted the State leave to amend the information and
further charge defendant with sexual assault in violation of 545-
5-502, MCA. Defendant's pre-trial motions included a request that
the District Court qualify J.G. as a witness and a motion to
exclude as hearsay testimony by certain witnesses regarding J.G.'s
statements concerning defendant's assault upon her. The District
Court denied the latter motion reserving the opportunity to rule
on specific testimony at trial. Subsequent to a hearing held
during the course of trial, the trial court found J.G. competent
to testify. The jury found defendant guilty of both charges
against him and the District Court imposed two twenty year
sentences, both with ten years suspended and to be served
concurrently.
Defendant raises four issues on appeal:
1) Did the District Court erroneously permit the State to
rebut testimony given by defendant on cross-examination?
2) Did the District Court err in finding the seven-year-old
victim competent to testify?
3) Did testimony given by various witnesses fall within a
statutory exception to the hearsay rule prohibiting the same?
4) Did improper remarks made by the prosecution prejudice
defendant thus preventing a fair trial?
Defendant first contends the District Court erred in
permitting the State to rebut defendant's testimony elicited on
6
cross-examination. Defendant testified on cross-exam that he was
a normal heterosexual male with no interest in anal sex, child
pornography or sexual contact with children. Over objection,
defendant's ex-wife testified on rebuttal that during the course
of their marriage he had encouraged her to engage in anal sex with
him and that she had seen him become sexually aroused by a
pornographic movie depicting a father having sex with his pre-
teenage daughter. Defendant contends this was testimony of
specific conduct inadmissable pursuant to Rules 608 and 404 (b),
M.R.Evid. Furthermore, defendant argues the State failed to give
notice of character testimony as required by State v. Just (1979),
184 Mont. 262, 602 P.2d 957. Defendant concludes the erroneous
admission of this testimony warrants reversal.
The State correctly observes that counsel for defendant did
not object to these questions and defendant thus put his
credibility at issue by his testimony. The facts of this case are
analogous to State v. Norris (1984), 212 Mont. 427, 689 P.2d 243.
Norris was charged with two counts of sexual intercourse without
consent stemming from an incident involving a teenage babysitter.
Norris, 689 P.2d at 244. Norris allegedly assaulted the young
woman after luring her to his motel room with the promise of a
babysitting job then inducing her to consume alcohol. Norris, 689
P.2d at 244.
In response to the prosecution's question on cross-exam, Lynn
Norris testified her husband had never coaxed women to enter into
prostitution. Norris, 689 P.2d at 246. The District Court
properly allowed rebuttal testimony by Norrisls cellmate from a
previous incarceration as to statements made by Norris regarding
his practice of encouraging women to consume illegal drugs and
then forcing them into prostitution. Norris, 689 P.2d at 245. In
that case, as in this, the State properly presented testimony
rebutting statements made by a witness. Furthermore, I1[t]he Just
substantive requirements for admissability of 'other crimes or
acts1 evidence do not apply to rebuttal evidence offered under
Rule 404 (a)(1). I 1 State v. Anderson (1984), 211 Mont. 272, 292,
686 P.2d 193, 204. We hold the District Court properly admitted
the ex-wife's testimony as rebuttal of defendant's statements on
cross-examination.
Defendant's second specification of error concerns the lower
court's determination that J.G. was competent to testify.
Defendant contends that because J.G. did not know where she lived,
how long she had lived there, specific dates upon which the sexual
abuse had taken place or even a time frame within which the
assaults had occurred, she was not competent to testify.
Rule 601(b), M.R.Evid., provides that:
A person is disqualified to be a witness if the
court finds that (1) the witness is incapable of
expressing himself concerning the matter so as to
be understood by the judge and jury either directly
or through interpretation by one who can understand
him or (2) the witness is incapable of understanding
the duty of a witness to tell the truth.
The ~istrictCourt in this case questioned J.G. extensively
regarding her understanding of her obligation to testify
truthfully. It is within the sound discretion of the District
Court to ascertain the competency of a witness. State v. Howie
(1987), 228 Mont. 497, 503, 744 P.2d 156, 159. "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
o~curred.'~
State v. Eiler (Mont. 1988), 762 P.2d 210, 213, 45
St.Rep. 1710, 1713. The child's inability to remember her address
or specific dates did not render her incapable of testifying as to
instances of sexual abuse by defendant. Any inconsistencies within
her testimony or possible fabrication would affect J.G.'s
credibility not her competency. Eiler, 762 P.2d at 213-14. The
jury determines the weight given witness testimony in light of that
person's credibility. Eiler, 762 P.2d at 214. The District Court
properly found J.G. competent to testify.
Defendant specifies as error the District Court's admission,
over objection, of testimony defendant contends was inadmissable
hearsay. We note that the District Court repeatedly admonished the
jury that certain statements, particularly those made by J.G. to
other witnesses concerning defendant's sexual abuse of her, were
not admitted for the truth of the statement made, but as evidence
that the statements were made at a certain point in time. The
first group of statements under contention were descriptions by
J.G. of the activities in which defendant compelled her to
participate. J.G.'s stepmother, therapist Carol Lee, Ann Anderson,
law enforcement officer Maxine Lamb and Dr. Pamela Oehrtman all
testified that J.G. described to them the sexual abuse defendant
inflicted upon her.
Rule 801(c), M.R.Evid., provides that:
Hearsay is a statement, other than one made by
the declarant while testifying at the trial or
hearing, offered in evidence to prove the
truth of the matter asserted.
However, pursuant to Rule 801(d)(l), M.R.Evid.:
A statement is not hearsay if . . . [tlhe
declarant testifies at the trial or hearing
and is subject to cross-examination concerning
the statement, and the statement is . . .
consistent with his testimony and is offered
to rebut an express or implied charge against
him of subsequent fabrication, improper
influence or motive. . .
We hold this group of statements is not hearsay according to Rule
Our recent holding in State v. Hibbs (Mont. 1989), 780 P.2d
182, 46 St.Rep. 1705, is analogous to the instant case. The issue
in Hibbs concerned the admissibility of out-of-court statements
made by four children regarding the sexual abuse inflicted on them
by Hibbs. Hibbs, 780 P.2d at 185. We found those statements
admissible pursuant to Rule 801(d)(l), M.R.Evid., noting that the
out-of-court statements were introduced into evidence after the
victims testified, and that the defendant repeatedly attacked the
credibility of the victims as witnesses. Hibbs, 780 P.2d at 185.
Similarly, defendant in the case at hand questioned J.G.'s
credibility by repeatedly referring to her possible motives for
falsely accusing defendant.
A linchpin of defendant's defense below and his argument
before this Court is that the allegations by J.G. were merely one
element of her father's campaign to gain residential custody of
J.G. and her brother. Defendant made express references to the
custody dispute between J.G.'s parents. Defendant also implied
that J.G.'s gradual recollection and increased ability to relate
the details of his contact with her were symptomatic of her induced
fabrication of these allegations. J.G. testified at the trial,
was subject to cross-examination and her statements to others were
introduced to counter defendant's charge that J.G. fabricated her
allegations against him. The District Court properly permitted
rebuttal of defendant's assault on J.G.'s credibility by admission
of her prior consistent statements.
Counsel for defendant further objected to the following
testimony by father:
Q. And the concerns that you had in the
summer of ' 8 7 were what?
A. [B.G.] was pretty much a straight-F
student. He didn't care. He was real
hyper and everything. I went to school
with him once on a parent-teacher's
conference, and the teacher told me, with
me there, that it was like--
Instead of doing his work, he would lay
down on the floor and roll around and be
a complete pest in his class. I was told
after I went in on the first parent-
teacher conference that, and I gave some
advice to [B.G.] on it right there.
The ~istrictCourt allowed this testimony over objection as
reflective of the witness1 state of mind. As noted above, counsel
for defendant repeatedly alleged that her father induced J.G. to
fabricate her charges against defendant so that father and
stepmother could prevail against mother in an action to modify
residential custody. Thus, defendant brought into issue father's
motive for seeking a change in custody. The above testimony
reveals father's state of mind. As such, father's testimony is
admissible as an exception to the hearsay rule pursuant to Rule
Nurse Karen Skonard testified J.G. related the details of
defendant's assaults upon her. Skonard gave expert testimony
regarding J.G.'s demeanor as compared with that of a typical
sexual assault victim. Skonard's diagnosis was based in part upon
these statements by J.G. and was thus admissable as an exception
to the rule excluding hearsay pursuant to Rule 803(4), M.R.Evid.
Defendant further contends Lorraine Pierce's testimony
regarding mother's statement that defendant would babysit her
children was inadmissible hearsay. We disagree.
Mother testified as follows:
Q. During this period of time, were there
occasions when you would leave [B.G. ] and
[J.G.] along [sic] with [defendant]?
A. When [defendant] was in my home it was
when he was with the guy that he worked
with and--
Q. Not always, though?
A. Not always, no. If I ever did leave the
home, it was just to go to, like, Circle
K and be right back home, because he
didn't babysit. He wasn't a babysitter.
He wasn't my babysitter.
Q. But he did babysit for you on occasion?
A. Just if I went to Circle K and back.
Q. How many times did he babysit for you?
Do you know?
A. Not very often, because I took the kids
wherever I went. I always take the kids
wherever I go.
The ~istrictCourt admitted over defendant's objection the
following testimony by mother's neighbor Lorraine Pierce:
Q. Do you recall at that time a time when
you were at her house during the summer
of '87 and the subject of babysitting
came up?
Q. In what context did that come up?
A. I was over there one afternoon and she
said something about that she was going
to go play bingo with, I believe,
[defendant's] sister, .. . And [J.G.]
came over to me and asked me if she could
go home with me.
Q. [J.G. ] asked you?
A. Yes. She practically was begging . . .
[me] to take her home with me.
Q. Was that something she did often?
A. She liked to come down to our house. We
live on a farm, and she liked coming out
there. But this seemed a little bit more
than the usual times she would ask to
come out.
Q. What did you tell her?
A. I told her I was busy and I couldn't have
her out that night.
Q. What did [mother] have to say at that
time?
A. She said that she didn't need a
babysitter, that [defendant] had offered
to watch the children that night.
Q. And what was [J.G.'s] reaction to that?
A. She looked very terrified. She looked
like she wanted to start to cry and ran
into her room and slammed the door.
Mother's statement to Pierce was clearly inconsistent with
her testimony at trial that defendant never babysat the children
for longer than the few moments it took her to run to the corner
store. The District Court properly admitted Lorraine Pierce's
testimony of mother's prior inconsistent statement pursuant to
Rule 801(d) (I), M.R.Evid.
Defendant's final specification of error concerns statements
made by the prosecutor and a State witness which defendant argues
constitute substantial prejudice requiring reversal of his
conviction. Defendant maintains Maxine Lamb's response on cross-
exam to the following questions prejudiced him in the eyes of the
jury:
Q. Now, did you take any steps to safeguard
the fact that [J.G.] may have been
creating this story? What steps do you
normally take when you interview
somebody?
A. Are you asking about the investigative
procedure?
Q. Right.
A. Certainly. I felt in this case, Pat,
that in my opinion, it warranted getting
a warrant for the arrest of [defendant]
for these charges, particularly after the
interview, after the affect, the
indicators from [J.G.]. And then running
a criminal history on [defendant], seeing
the violence in his background.
The District Court sustained counsel for defendant's objection to
Lamb's testimony as being non-responsive and inappropriate.
Defendant maintains such testimony caused him substantial
prejudice. However, mother previously testified without objection
to one incident of domestic violence admitted by defendant and to
which the police responded.
Defendant further contends the prosecutor's interjection in
the following exchange prejudiced him:
Q. [By defense counsel] So when did you
claim that [defendant] was watching this
movie, child pornography?
A. I can't tell you the exact date. It was
when we were married.
Q. Ten years ago?
A. No. Probably mid-marriage.
Q. Where did this movie come from?
A. It came from a video store, I think one
of the sex shops.
Q. Didn't you know that these movies, you
cannot get them locally?
[THE STATE 'S COUNSEL] : Your Honor, I am not
too sure that is true.
THE COURT: I am not sure that is true, either.
"It has long been the law of this state that prejudice in a
criminal case will not be presumed, but must appear from the denial
or invasion of a substantial right from which the law imputes
prejudice.'' State v. Miller (Mont. 1988), 757 P.2d 1275, 1281, 45
St.Rep. 790, 796-97. Defendant in this case failed to demonstrate
denial or invasion of a substantial right. The jury had sufficient
evidence upon which to determine defendant's guilt. We find no
reasonable possibility that these comments contributed to
defendant's conviction. State v. Gray (1983), 207 Mont. 261, 268,
673 P.2d 1262, 1266.
Affirmed.
Chief Justice