NO. 93-063
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
v.
EDWARD GEORGE PASSAMA,
Defendant and Appellant.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Chouteau,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John Keith, Attorney at Law, Great Falls, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Jennifer Anders, Assistant Attorney General,
Helena, Montana; Allin H. Cheetham, Chouteau
County Attorney, Fort Benton, Montana
Submitted on Briefs: June 10, 1993
Decided: November 2, 1993
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Defendant Edward George Passama was convicted in the District
Court for the Twelfth Judicial District in Chouteau County for
sexually assaulting an eight-year-old girl. Passama appeals his
conviction based on his assertion that the District Court erred
when it limited the scope of his cross-examination of the victim
and her 13-year-old brother. We affirm.
There are two issues on appeal.
1. Did the District Court abuse its discretion when it
prohibited appellant from cross-examining W.B., the victim's
brother, about details of his past sexual misconduct with other
children?
2. Did the District Court abuse its discretion when it
prohibited appellant from cross-examining the victim about details
of her past sexual history?
On September 15, 1992, Edward George Passama, age 47, was
charged by information with one count of sexual assault upon an
eight-year-old girl in violation of 5 45-5-502(l) and (3), MCA. A
trial was held on December 1, 1992, in the District Court in
Chouteau County.
At trial, the State presented the testimony of the victim,
M.B., and her 13-year-old brother, W.B. W.B. testified that he and
his sister frequently visited their neighbor, Passama, at his
house. W.B. explained that he and M.B. usually played computer
games at Passama's house or helped Passama with his chores. W.B.
testified that one day he went looking for Passama and M.B., and he
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found them lying side by side on Passama's bed. When W.B. entered
the room, Passama jumped up and began complaining that something
was wrong with his leg. W.B. testified that Passama then ducked
behind a door and that W.B. heard him zipping up his pants.
W.B. testified that on another occasion, when Passama was
watching a movie with the children at their house, Passama had an
erection while M.B. was sitting on his lap.
The victim, M.B., testified that Passama laid on top of her,
sometimes with their clothes on and other times with their clothes
off. M.D. stated that Passama kissed and hugged her while he lay
on top of her. M.B. explained that the majority of the incidents
occurred at Passama's house, although she thought that some may
have occurred at her house while her mother was sleeping. When
asked to indicate on anatomical drawings the parts of her body that
Passama touched when her clothes were off, M.B. circled her mouth,
her vaginal area, and her buttocks. When asked to identify the
parts of his body that Passama used to touch her, M.B. circled the
mouth and the genital area on the anatomical drawing of an adult
male.
This appeal concerns the limitations the District Court placed
on Passama's cross-examination of the victim and her brother.
Prior to trial, Passama filed a motion in limine in which he
requested the court's permission to cross-examine W.B. about his
past sexual misconduct with other children. Passama argued that
questioning W.B. about his past conduct was relevant to W.B.'s
credibility. According to Passama, not only would it show that
W.B. was being treated for sexually molesting a 12-year-old child,
but it would reveal that W.B. made an agreement with the
prosecution to testify favorably for the State in exchange for
leniency in his own legal difficulties.
The District Court denied Passama's motion. The court ruled
that Passama could ask W.B. whether any sexual misconduct charges
had ever been filed against him, however, the court prohibited
Passama from inquiring into the details of the allegations. The
court indicated that if W.B. admitted that he had been charged, the
defense was permitted to ask W.B. if he had made an agreement with
the prosecution that was conditioned on his testimony in the
present case. The court determined that such an inquiry would be
probative of whether W.B. was testifying truthfully or falsely.
Prior to trial, Passama also requested the court's permission
to cross-examine the victim, M.B., about her past sexual history.
Passama wanted to ask M.B. about other sexual assaults committed
against her. Additionally, he wanted to question the victim about
what she had learned from others regarding sexually abusive
incidents. Passama intended to attack M.B.'s credibility by
demonstrating that the victim's knowledge of sexual abuse could
have come from sources other than her personal experiences with
Passama. The court reserved ruling on Passama's request until
after the court heard testimony from M.B.
During M.B. 's cross-examination, Passama's attorney renewed
his prior motion concerning the scope of M.B.'s cross-examination.
The court permitted the defendant to ask M.B. whether she had been
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the victim of other sexual assaults of a similar nature. Further,
the court allowed inquiry into how M.B. knew about the body parts,
and the meaning of good touch and bad touch. However, the court
explicitly refused to allow further examination regarding assaults
and prohibited any inquiry into the names of former assailants.
Passama's attorney cross-examined W.B. and M.B. according to
the guidelines set by the District Court. On December 2, 1992, the
jury convicted Passama of sexual assault. This appeal is from that
conviction.
I
Did the District Court abuse its discretion when it prohibited
appellant from cross-examining W.B., the victim’s brother, about
details of his past sexual misconduct with other children?
Appellant asserts that the District Court erred when it
prohibited him from inquiring into the specific instances of W.B.'s
previous sexual misconduct. Appellant contends that by limiting
his cross-examination (1) to whether W.B. had ever been charged
with sexual misconduct, and (2) to whether W.B. agreed to testify
favorably for the State in exchange for leniency in his own
situation, the court prevented appellant from effectively attacking
W.B.'s credibility. Appellant argues that W.B. was never charged
with a crime, and therefore, the court's permitted questions were
valueless to Passama.
The standard of review of evidentiary rulings is whether the
district court abused its discretion. statev. Crikt (1992), 253 Mont.
442, 445, 833 P.2d 1052, 1054. The district court has broad
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discretion to determine whether or not evidence is relevant and
admissible, and absent a showing of an abuse of discretion, the
trial court's determination will not be overturned. &St, 8 3 3 P.2d
at 1054.
"A witness'[s] credibility may be attacked through
cross-examination to reveal possible biases, prejudices, or
ulterior motives if they relate directly to issues or personalities
in the case at hand." State% Short (1985), 217 Mont. 62, 67, 702
P.2d 979, 982. However, interrogating a witness regarding prior
misconduct is fraught with potential prejudice. In the past, this
Court has been cautious about permitting such testimony on
cross-examination. For example, in state v. whk? (1983), 202 Mont.
491, 496, 658 P.2d 1111, 1113, we held that evidence of prior bad
acts
served only to create an unfair prejudice against [the
witness], and confusion of the issues for the jury, and
as such should have been barred under 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 tie jury[, or] . . . waste of time . . .'I
The result here as to this issue would be the same even
before the adoption of the Montana Rules of Evidence.
Former section 93-1901-11, R.C.M. 1947, used
substantially the same language. Specific wrongful acts
used in cross-examination of witnesses to degrade their
characters were condemned in State v. Rogers (1904), 31 Mont.
1, 6, 77 P. 293; Statev. Crowe (1909), 39 Mont. 174, 177,
102 P. 579; Statev.Kanakarias (1917), 54 Mont. 180, 184, 169
P. 42; Stute V. Shannon (1933), 95 Mont. 280, 288, 26 P.2d
360.
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Similarly, we hold that the District Court did not abuse its
discretion when it limited appellant's cross-examination of W.B.
The District Court acted in accordance with Rule 403, M.R.Evid.,
and properly barred appellant from inquiring into W.B.'s prior
sexual misconduct because the probative value of such evidence was
substantially outweighed by its prejudicial value, and the evidence
would have potentially confused the issues.
II
Did the District Court abuse its discretion when it prohibited
appellant from cross-examining the victim about details of her past
sexual history?
Appellant asserts that the District Court abused its
discretion when it denied his request to question M.B. about the
details of other sexual assaults on her. Appellant claims that by
cross-examining M.B. about the details of other sexual assaults, he
could impeach M.B. by showing that the source of her knowledge
about sexual abuse came from sources other than her personal
experiences with appellant.
The rules of evidence certainly allow the credibility of a
witness to be attacked, however, these rules are not without
limitation. State v. T/ail Pelt (1991), 247 Mont. 99, 805 P.2d 549.
Section 45-5-511(2), MCA, governs the admissibility of
evidence of a victim's past sexual history. The statute provides
that:
No evidence concerning the sexual conduct of the victim
is admissible in prosecutions under this part except
evidence of the victim's past sexual conduct with the
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offender or 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.
The purpose of 3 45-5-511(4), MCA (1989) (now § 45-5-511(Z), MCA),
is to prevent the trial from becoming a trial of the victim.
Vnn Pelt, 805 P.2d at 552.
None of the exceptions to 3 45-5-511(2), MCA, are met in the
present case. Accordingly, the District Court did not err when it
denied appellant's request to cross-examine M.B. about the details
of her past sexual history.
Appellant was allowed to ask M.B. whether she was a victim of
similar sexual assaults. Appellant was permitted to inquire into
how M.B. knew about the body parts, and the meaning of good touch
and bad touch. There was sufficient evidence in M.B.'s testimony
to conclude that the child's source of knowledge about sexual abuse
was a result of her experiences with the appellant.
We affirm appellant's conviction for sexual assault.
ujtice
/
We concur:
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