NO. 92-560
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
STEVEN L. LITTLE,
Defendant and Appellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Teresa McCann Ofconnor; OIConnor & O'Connor,
Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General, Patricia
J. Jordon, Ass't Attorney General, Helena, Montana
Dennis J. Paxinos, Yellowstone County Attorney,
Marcia Good Sept and Dale R. Mrkich, Deputy County
Attorneys, Billings, Montana
Submitted on Briefs: August 19, 1993
Decided: October 4, 1993
Filed:
Justice Karla M. Gray delivered the Opinion of the Court
Steven L. Little appeals from pre-trial and evidentiary
rulings and a jury verdict entered in the Thirteenth Judicial
District Court, Yellowstone County, finding him guilty of three
counts of sexual intercourse without consent and one count of
sexual assault. We affirm.
We restate the issues on appeal as follows:
1) Did the District Court err in denying Little's "investi-
gatory" motions?
2) Did the District Court err in denying Little's motions to
dismiss the information?
3) Did the District Court err in admitting evidence of other
crimes, wrongs or acts?
4) Did the District Court err in excluding evidence regarding
the "motorcycle incident?"
5) Did the District Court err in refusing to admit two
photographs of the scene of the Flathead Lake incident?
6) Is the evidence sufficient to support the jury's verdict?
On August 7, 1991, an information was filed against Steve
Little (Little) alleging three counts of sexual intercourse without
consent in violation of 5 45-5-503, MCA, and one count of sexual
assault in violation of 5 45-5-502, MCA. The first two counts
alleged that in 1987-88, Little knowingly had sexual intercourse
without consent with D.H. (older victim). Count Three alleged that
on or about 1990, Little had sexual intercourse without consent
with D.H. (younger victim), while Count Four alleged that Little
2
knowingly had subjected the younger victim to sexual contact
without her consent. The victims were Little's stepdaughters.
Little was subsequently arrested and released on bond.
On November 21 and 22, 1991, Little filed numerous motions,
including three motions to dismiss the information, motions to
compel medical and psychological evaluations on the victims, a
motion for additional discovery of the Department of Family
Servicesi (DFS) files regarding the victims, a motion for
disclosure of the victims1 counselor's notes, and a motion for a
polygraph examination of the older victim. He asserted that the
motions were necessary to remedy the Staters lack of investigation
of the charges against him.
In response to one of Little's motions to dismiss, the State
was granted leave to file an amended information, which detailed
two specific acts of sexual intercourse without consent involving
the older victim and one specific act of both sexual intercourse
without consent and sexual assault involving the younger victim.
Little then moved to dismiss the amended information.
The District Court denied Little's motions regarding the
psychological, medical and polygraph examinations, counseling notes
and DFS files on February 25, 1992. On that date, the court also
denied Little's motions to dismiss the information. One week prior
to trial, the State submitted notice of its intent to introduce
evidence of "other crimes" and alleged that, in Flathead County,
Little had attempted sexual intercourse with the older victim and
had performed oral sex on the older victim without her consent.
After a three-day trial, the jury found Little guilty on all
four counts. On August 26, 1992, the District Court sentenced
Little to terms of imprisonment totalling forty-five consecutive
years, with ten years suspended. Little appeals.
Did the District Court err in denying Little's
**investigatoryw
motions?
As stated above, Little filed several motions in support of
his general allegation that the State had not sufficiently
investigated the victims' allegations. On appeal, Little again
broadly asserts that the State did not sufficiently investigate the
allegations made against him; he urges this Court to require
prosecutors and law enforcement to "search for and weigh pieces of
information which tend to show innocence as well as those which
tend to show guilt." He cites no authority for imposing this
requirement as a matter of law nor does he identify the bases for
his assertions. In the interest of clarity, we examine Little's
arguments regarding his various "investigatory" motions in turn.
DEPARTMENT OF FAMILY SERVICES FILES
Little argued that he should be allowed discovery of the
victims' files held by DFS or, at a minimum, the files should be
inspected in camera by the District Court. The State informed the
District Court that it knew of no relevant information contained in
the DFS files. The District Court denied Little's requests.
On June 23, 1993, this Court issued an interlocutory appellate
order requiring the District Court to conduct an in camera
inspection of the victims' DFS files and enter appropriate findings
regarding whether the files contained information relevant to
Little's prosecution. We relied on § 41-3-205, MCA, which provides
that DFS records may be disclosed to a court for an in camera
inspection if relevant to an issue before it. We concluded that an
actual in camera inspection of the DFS files was necessary to
complete the record on appeal. On August 6, 1993, the District
Court entered an order stating that it had inspected the victimsJ
DFS files and concluded that they contained no disclosable
information. The court forwarded the DFS files to us with its
order.
If a district court makes an in camera review of confidential
records and concludes that no material information is contained
therein (and that conclusion is subject to review on appeal), the
defendant's interest in ensuring a fair trial is protected. See
State v. Thiel (1989), 236 Mont. 63, 67, 768 P.2d 343, 345. In
w, we quoted with approval the United States Supreme Court's
explanation of the policy underlying this principle:
To allow full disclosure to defense counsel in this type
of case would sacrifice unnecessarily the Commonwealth's
compelling interest in protecting its child abuse
information. If the .. . records were made available to
defendants, even through counsel, it could have a
seriously adverse effect on Pennsylvania's efforts to
uncover and treat abuse.
m,768 P.2d at 345, quoting Pennsylvania v. Ritchie (l987), 480
U.S. 39, 60-61, 107 S.Ct. 989, 1003-4, 94 L.Ed.2d 40, 59.
We have reviewed the DFS files and conclude that the District
Court properly determined that Little was not entitled to their
disclosure. See also State v. Goodwin (1991), 249 Mont. 1, 20-21,
813 P.2d 953, 965. We conclude that the District Court did not err
in denying Little's motion to compel disclosure of the victims' DFS
files.
COUNSELOR'S NOTES
Little also requested discovery of the victims' counselor's
notes, arguing that they might contain exculpatory evidence. The
District Court denied the motion, concluding that Little was not
entitled to discovery of the counselor's notes because the State
did not have possession of the notes and did not intend to call the
counselor as a witness. Little then subpoenaed the counselor as
a witness at trial and, at that point, requested an in camera
inspection of the notes by the District Court. The District Court
declined to inspect the notes in camera. The counselor testified,
in essence, that the notes contained no exculpatory evidence and
that she had no information indicating that the girls had
fabricated their allegations against Little.
No statutory authority permits or requires a district court to
make an in camera inspection of a counselor's notes and Little
cites no other authority requiring disclosure or in camera
inspection of the counselor's notes. In State v. Rhyne (1992), 253
Mont. 513, 524, 833 P.2d 1112, 1119, we held that it was not error
for a district court to refuse to examine or turn over counselor's
notes if the counselor was not a witness against the defendant and
the counselor's opinions were not used by the prosecution in
preparing the case.
Here, the State did not call the counselor as a witness
against Little and did not rely on the counselor's notes or
opinions in preparing the case. Indeed, the prosecutor indicated
that the State had not viewed the counselor's files prior to the
trial. We conclude that the District Court did not err in refusing
to disclose the victims1 counselor's notes to Little or in refusing
to conduct an in camera inspection of the notes at trial.
PSYCHOLOGICAL EXAMINATIONS
Little argues that he should be allowed to require the victims
to submit to a psychiatric examination. It is well-established
that a defendant cannot force a child victim of a sexual crime to
undergo a psychological evaluation. State v. Crist (1992), 253
Mont. 442, 447, 833 P.2d 1052, 1056: State v. Gilpin (1986), 232
Mont. 56, 67, 756 P.2d 445, 451. Rule 35(a), M.R.Civ.P., allows
for a mental or physical examination by a physician only when the
mental or physical condition of a party is in controversy. State
v. Liddel (l984), 211 Mont. 180, 191, 685 P.2d 918, 924. As was
the case in w,Gil~in,and Liddel, the victims are witnesses,
not parties, to this action.
Little concedes that this Court has held that a defendant
cannot compel the psychiatric examination of a victim of a sexual
crime. Instead, he argues that the reasoning of State v. Malee, an
unpublished opinion and order issued by this Court in 1988, is more
applicable to his situation. We do not recognize citations to
unpublished opinions.
MEDICAL EXAXINATIONS
Little also moved for production of medical reports or for an
order compelling the victims to undergo a medical examination. The
District Court denied this motion based primarily on the State's
assertion that it had no medical records to disclose.
For the same reasons that underlie our conclusion regarding
the psychological examination, we conclude that a defendant cannot
compel a child victim of a sexual offense to undergo an independent
medical examination. Goodwin, 813 P.2d at 964. The victims are
witnesses, not parties. As we have repeatedly admonished, to hold
otherwise would permit the defense to try the victim of the crime
and divert the jury's attention from the primary issue--the guilt
or innocence of the defendant. Goodwin, 813 P.2d at 964.
Did the District Court err in denying Little's motions to
dismiss the information?
Little made four motions to dismiss the information filed
against him, ail of which were withdrawn by Little or denied by the
District Court. On appeal, he asserts three separate and
independent grounds to support his argument that the information
should have been dismissed: (1) the information was not supported
by probable cause; (2) the information was not specific regarding
the dates of the offenses; and (3) the information was not specific
enough to protect him from double jeopardy. We examine each
contention in turn.
PROBABLE CAUSE
Section 46-11-201, MCA, which sets forth the statutory
requirements for obtaining leave to file an information, provides
in pertinent part:
8
(2) An application must be by affidavit supported by
evidence that the judge . .
. may require. If it appears
that there is probable cause to believe that an offense
has been committed by the defendant, the judge . . .
shall grant leave to file the information, otherwise the
application is denied.
Little argues that the affidavit filed in support of the
information was insufficient because the victims' allegations were
not corroborated. He also contends that, taken as a whole, the
entire investigative file did not contain sufficient information to
support a probability that he had committed the offenses charged.
An affidavit filed in support of a motion for leave to file an
information need only recite facts sufficient to indicate a
probability that the defendant committed an offense; it need not
demonstrate a prima facie case. State v. Ramstead (19901, 243
Mont. 162, 166, 793 P.2d 802, 804. An information is intended to
provide the defendant with notice, not to provide discovery of the
State's evidence. State v . Riley j1982j, 199 Mont. 413, 421, 649
P.2d 1273, 1277. Further, a court reviewing an affidavit for
probable cause may use common sense and draw permissible
inferences; the standards are less stringent than those governing
the admissibility of evidence. State v. Miner (1976), 169 Mont.
260, 264, 546 P.2d 252, 255. This probable cause determination
will not be reversed absent an abuse of discretion. State v.
Buckingham (1989), 240 Mont. 252, 256, 783 P.2d 1331, 1334.
With those standards in mind, we review the affidavit filed in
support of the motion for leave to file the information in this
case. The crime of sexual intercourse without consent requires
that the defendant knowingly had sexual intercourse without consent
9
with another person. Section 46-5-503, MCA. A victim is incapable
of consent if she is less than 16 years old. Section 45-5-
5Ol (b)(iii), MCA.
Here, the affidavit related that the older victim stated that
Little had sexual contact with her beginning in 1987, when she was
15 years old. The sexual contact originally consisted of kissing
and fondling but progressed to the insertion of Little's fingers
into her vagina and forced oral intercourse. The affidavit also
alleged that the younger victim, who was 11 years old at the time,
had stated that Little had inserted his fingers into her vagina.
Thus, the affidavit sufficiently indicated a probability that
Little had committed the three counts of sexual intercourse without
consent.
The affidavit also satisfied the probable cause requirement
for the count of sexual assault by alleging that, beginning in
early 1990, Little had fondled the younger victim's breasts and
vaginal area and had forced her to fondle his penis. See 5 45-5-
502, MCA. Lastly, the standards for probable cause with regard to
filing an information do not require corroboration of the victims'
allegations; the affidavit filed was sufficient to indicate a
probability that Little committed the charged offenses.
We conclude that the District Court did not abuse its
discretion in denying Little's motion to dismiss the information
for lack of probable cause.
LACK OF SPECIFICITY OF DATE
The amended information alleged that "on or about 1987-88,"
Little had committed sexual intercourse without consent against the
older victim (Counts I and 11) and "on or about 1990," Little had
committed sexual intercourse without consent and sexual assault
against the younger victim (Counts I11 and IV). Little argues
that the information is deficient because the dates of the offenses
are not alleged with sufficient particularity to allow him to
meaningfully assert the defense of alibi.
The law does not require that the time and place in an
information be stated with impossible precision. w , P.2d
649
at 1277. Section 46-11-401(1)(c)(iv), MCA, requires that the
information "charge the commission of an offense by . . . stating
the time and place of the offense as definitelv as can be done."
(emphasis added.) In cases of sexual abuse against children, this
Court has declinedto impose exacting standards for identifying the
dates of the offenses contained in the charging document even where
the defense of alibi is asserted. See State v. Clark (19841, 209
Mont. 473, 481-83, 682 P.2d 1339, 1343-45; State v. D.B.S. (1985),
216 Mont. 234, 239-40, 700 P.2d 630, 633-35: and State v. Shaver
(1988), 233 Mont. 438, 445-46, 760 P.2d 1230, 1235. In determining
whether the dates are alleged with sufficient particularity in
these situations, we review whether 1) time is a material
ingredient in the offense, and 2) whether a continuing course of
conduct is alleged. Clark, 682 P.2d at 1344.
In D.B.S., the information alleged that the defendant had
committed a single act of incest sometime during a ten-month
period. D.B.S., 700 P.2d at 633. In applying the first element
from Clark, we concluded that time was not a material ingredient in
the offense of incest, even though the defendant had asserted the
defense of alibi. D.B.S., 700 P.2d at 634. Regarding the second
element, we stated that when a continuing course of conduct is
alleged, further specificity in the information is not required.
Even if a continuing course of conduct is not alleged, and a single
act of incest is charged over a period of time, the information is
not automatically insufficient. D.B.S., 700 P.2d at 634. After
surveying the law in other jurisdictions, we concluded in D.B.S.
that, because children are less likely to distinguish dates and
times with specificity, the fact that the victim cannot set a date
for the crime should not be fatal to the State's case. To hold
otherwise would leave the defendant virtually immune from
prosecution. D.B.S., 700 P.2d at 634.
The same reasoning applies here. Little's assertion of the
defense of alibi does not make time a material ingredient to the
crime of sexual intercourse without consent or sexual assault.
Shaver, 760 P.2d at 1234-35. It is clear, and Little does not
challenge, that the time during which the specific acts are alleged
to have occurred was when both victims were under the age of
sixteen. Thus, he asserts no challenge that relates to time as a
material element of the offenses.
We also conclude that the time frame alleged in the
information is sufficiently particular under these circumstances.
Although the State's amended information alleged four specific
criminal acts instead of a continuing course of conduct, the
statements taken from both victims indicate that the defendant
repeatedly subjected the children to sexual acts. We do not hold
abused children to a standard requiring them to comprehend and
remember specific times and dates. Shaver, 760 P.2d at 1235.
Little attempts to distinguish D.B.S. on the grounds that the
victim in that case was four years old, and argues that the
leniency afforded to such a young child should not be granted to
these victims, who were 15 and 11 at the time of the criminal acts.
We have previously rejected a similar argument with regard to a
twelve-year-old victim, stating that, even though the victim was
older than the child in D.B.S., the rationale of D.B.S. was still
instructive. Shaver, 760 P.2d at 1235.
We conclude that the information alleged the dates of the
offenses with sufficient particularity to inform Little of the
general time period in which the offenses occurred. Shaver,
760 P.2d at 1235.
DOUBLE JEOPARDY
Little's final argument regarding the sufficiency of the
information is that Counts 1 and I1 "charge the same statute," and
that Counts I11 and IV alleged the same course of conduct. He
contends, therefore, that the information violates the statutory
and constitutional prohibitions against double jeopardy. He
concedes that this alleged double jeopardy violation was cured by
the time the trial began, but argues that his ability to prepare
his defense was hindered by the confusion caused by the
information.
We find no merit to this argument. The facts constituting
Count I in the mended Information read:
That the Defendant, STEVE LITTLE, DOB 12-24-47, knowingly
had sexual intercourse without consent with D.H., DOB 10-
6-72, when she was less than 16 and he was three or more
years older, when he inserted his fingers into her vagina
The facts constituting Count I1 read:
That the Defendant, STEVE LITTLE, DOB 12-24-47, knowing
had sexual intercourse without consent with D.H., DOB 10-
6-72, when she was less than 16 and he was three or more
years older, when he would insert his penis into her
mouth . . .
The facts constituting Count I11 of the amended information detail
digital penetration against the younger victim, in language similar
to that of Count I. Count IV sets forth the facts constituting
sexual assault, which are:
That the Defendant, STEVE LITTLE, DOB 12-24-47, knowingly
subjected D.H., DOB 11-4-79, to sexual contact without
her consent, when she was less than 16 and he was three
or more years older, when he fondled her breasts and
vaginal area and forced her to fondle his penis .. .
The information clearly sets forth four specific and distinct
sexual acts which occurred during a specified time period. It is
elementary that separate acts can be charged in an information as
separate offenses. 5 46-11-404 and -410, MCA: State v. Boe
(1963), 143 Mont. 141, 145, 388 P.2d 372, 375; State v. Sanderson
(1985), 214 Mont. 437, 451, 692 P.2d 479, 487. No double jeopardy
violation occurred here.
We hold that the District Court did not err in denying
Little's motions to dismiss the information.
Did the District Court err in admitting evidence of other
crimes, wrongs or acts?
In the older victim's initial statement made July 15, 1991,
she referred to an incident in Flathead County where Little had
attempted sexual intercourse with her in the family camper while
the rest of the family was at the waterslides. She also related an
incident where, while picking cherries near Flathead Lake, Little
sat her on a stump in the orchard and placed a cherry in her vagina
with his tongue. On April 1 1992,
, three weeks prior to trial,
defense counsel interviewed the older victim and she again related
the incidents in Flathead County.
On April 13, 1992, seven days before the trial began, the
State filed notice of its intent to use evidence of other crimes,
wrongs or acts, as required by State v. Just (1979) , 184 Mont. 262,
6 0 2 P.2d 957. The Just notice specified that:
1) During the offense period, the defendant forced sexual
intercourse without consent upon victim D.H. DOB 10-6-72
[the older victim] during a family vacation to Flathead
Lake, Montana. During the vacation, defendant forced
oral intercourse upon victim and and [sic] he attempted
to force sexual intercourse upon her. The attempted
sexual intercourse occurred in Flathead County, Montana
and the forced oral intercourse occurred in either Lake
County or Flathead County, Montana.
The Defendant's attorney learned of these allegations
through D.H.'s original statement in the police
investigative file. The attorney again heard the
allegations from D.H. during her recorded interview which
was taken on April 1, 1 9 9 2 .
The foregoing evidence is relevant to establish the plan
which the defendant had established for the sexual abuse
of D.H. and a lack of mistake or accident that the
defendant's actions constituted sexual intercourse
without consent.
The District Court admitted the evidence over Little's objections.
On appeal, Little argues that the one-week notice was not
timely and that the acts described in the notice were not
sufficiently similar to the crimes charged. In reviewing
evidentiary rulings, this Court will not overturn the district
court's determination absent an abuse of discretion. State v. Hage
(Mont. 1993), 853 P.2d 1251, 1253, 50 St.Rep. 631, 632.
We have developed extensive procedural and substantive
requirements that govern the admission of evidence of other crimes,
wrongs or acts in a criminal case. Procedurally, evidence of other
crimes may not be received unless there has been written notice to
the defendant that such evidence is to be introduced. State v.
Howell (1992), 254 Mont. 438, 443, 839 P.2d 87, 90; Gilvin, 756
P.2d at 450. In Gilvin, on the day before trial, the State gave
notice of its intent to introduce evidence of prior sexual assaults
on a child victim. We determined that the notice must be given
before the case is called for trial and, therefore, notice given on
the day before trial began was timely. Gilpin, 756 P.2d at 450.
Applied to this case, the State's one-week notice is sufficient.
Little argues that the State's notice was deficient under
State v. Croteau (1991), 248 Mont. 403, 812 P.2d 1251. Croteau
lends no support to Little's argument. In Croteau, the Just
notice, given one year before trial, stated that the defendant
fondled victim R.B. in Wyoming in 1982 and in Mexico in 1985.
Croteau, 812 P.2d at 1252. While testifying, victim R.B. stated
that the defendant had fondled him while he spent the night at the
defendant's house; the defense objected that this evidence of a
npri~ract," which was neither charged nor included in the Just
notice, was improperly admitted. Croteau, 812 P.2d at 1253.
In response, the State asserted that the lack of Just notice
was cured when it delivered, on the morning of the trial, a copy of
a new statement by victim R.B. in which the incident at the
defendant's house was described. Croteau, 812 P.2d at 1253. We
disagreed, concluding that the last minute delivery of victim
R.B.*s statement violated the notice requirements of Just.
Croteau, 812 P.2d at 1254.
Unlike the defendant in Croteau, Little has been aware of the
details of the allegations concerning the Flathead incidents since
the outset of the case. As we stated in Croteau, the purpose of
the notice requirement is to allow the defendant a reasonable
opportunity to prepare to meet the evidence against him. Croteau,
812 P.2d at 1254. Here, Little had ample knowledge of the
allegations and sufficient opportunity to respond to the evidence.
We conclude that the Staters Just notice was timely.
Little also argues that the admission of the evidence of the
other crimes, wrongs or acts violates the substantive requirements
of Just because the other crimes, wrongs or acts are not similar to
those alleged in the information. To admit evidence of other
crimes, wrongs or acts, the "Modified Just RuleN requires:
1) the other crimes, wrongs or acts must be similar;
2) the other crimes, wrongs or acts must not be remote in
time ;
3) the evidence 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 with such character, but
may be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan,
knowledge, identity or absence of accident or mistake;
and
4) although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger
of unfair prejudice, confusion of the issues, misleading
the jury, considerations of undue delay, waste of time or
needless presentation of cumulative evidence.
State v. Matt (1991), 249 Mont. 136, 142, 814 P.2d 52, 56.
Regarding the first element, it is not necessary that the
prior act and the charged offense be identical. Gil~in,756 P.2d
at 449; e,
833 P.2d at 1054. In State v. Medina (l99O), 245
Mont. 25, 31-32, 798 P.2d 1032, 1035-36, we concluded that a prior
act of attempted sexual intercourse was sufficiently similar to the
charged acts of fondling and forced oral sex against the same
victim.
Here, both the other acts evidence introduced at trial and the
acts charged involved the same victim. The defendant's actions
during each incident and the charged offenses were basically the
same: the defendant waited until he and the victim were alone and
attempted or completed some form of sexual intercourse without
consent toward his stepdaughter. See State v. McKnight (1991), 250
Mont. 457, 462-63, 820 P.2d 1279, 1282. We conclude that the acts
in Flathead County were sufficiently similar to the charged
offenses. Little does not challenge the existence of the other
three substantive requirements of the Modified Just Rule.
We hold that the District Court did not abuse its discretion
in admitting evidence of other acts, wrongs or crimes.
Did the District Court err in excluding evidence regarding the
"motorcycle incident?"
On appeal, Little argues that the court improperly denied him
the right to impeach the credibility of the older victim by
"excluding evidence" regarding an incident that the older victim
had described in a pre-trial interview with defense counsel
concerning an alleged sexual assault on a motorcycle in Yellowstone
County. Little's argument is misplaced.
It is well-established that admitting or refusing evidence
lies within the sound discretion of the trial judge. State v.
Kowalski (1992), 252 Mont. 166, 171, 827 P.2d 1253, 1256. We will
not hold a trial court in error for a procedure in which a party
acquiesced at trial. In re Marriage of West (1988), 233 Mont. 47,
51, 758 P.2d 282, 285. For similar reasons, we will not hold a
district court in error for a procedure that did not occur.
During the older victim's cross-examination, defense counsel
did not question, or attempt to question, her regarding the
motorcycle incident. The court did sustain the State's objection
to defense counsel's general question concerning the victim's
truthfulness on the basis that the question was outside the scope
of direct examination. That ruling, however, did not relieve the
defense of its obligation to at least attempt to question the
victim about the motorcycle incident so that a record would be
available for review. Absent such a record, we have no basis for
concluding that the court wrongfully @'excludedM this evidence
Additionally, Little argues that he was prohibited from
recalling the older victim as a witness and from introducing
independent evidence about the motorcycle incident. This argument
fails for two reasons. First, notwithstanding the court's
suggestion during the older victimss cross-examination that Little
could call the witness in his case-in-chief, Little did not do so.
The record contains no ruling by the District Court that prohibited
Little from recalling the older victim as a witness.
Second, three days prior to trial, Little submitted a motion
in limine seeking to limit the State from referring to any acts
alleged to have been committed by the defendant other than the
specific four offenses charged and those covered by the Just
notice. While no specific ruling appears of record, the District
Court appears to have granted the motion, at least tacitly;
throughout the proceedings, the court consistently limited the
State's evidence to the four charged acts and the two acts
described in the Just notice. When Little's counsel announced her
intention to introduce independent evidence that would prove that
the motorcycle incident could not have occurred as the victim
described in her interview, the District Court ruled that such
evidence would be excluded.
Because of Little's successful motion in limine, the older
victim did not, and could not, testify on direct examination
regarding the motorcycle incident. As discussed above, Little did
not attempt to cross-examine the older victim concerning the
motorcycle incident. Nor did Little call the older victim as a
witness in his case-in-chief. Without testimony regarding the
motorcycle incident in the record, it would be improper for the
defense to introduce evidence from an independent witness as to
whether that incident could have occurred. Little seeks the best
of both worlds: he argues that the State cannot introduce evidence
of his other sexual acts towards the victim because it would be
unduly prejudicial; yet, when it suits his purpose, he urges this
Court to ascribe error to the District Court for refusing to allow
him to question the older victim regarding the "other act," and for
refusing to allow him to introduce independent evidence concerning
this "other act."
We hold that the District Court did not abuse its discretion
in refusing to admit evidence of the "motorcycle incident."
Did the District Court err in refusing to admit two
photographs of the scene of the Flathead Lake incident?
During Little's testimony, he attempted to introduce three
photographs which depicted the cherry orchard near Flathead Lake
where the incident of oral intercourse was alleged to have taken
place. The District Court refused to admit two of the photographs
on relevancy grounds. Little argues that he intended to introduce
the photographs to demonstrate that there was no stump in the
orchard and that the incident could not have happened as the older
victim described.
As stated earlier, the trial court has wide discretion in
admitting or refusing evidence. Kowalski, 827 P.2d at 1256. The
two excluded photographs depict fairly close-up pictures of cherry
trees, which, as conceded by Little's counsel, do not exclude the
possibility of a stump in the orchard. As the District Court
observed, only the photograph admitted into evidence depicts the
21
road and orchard in such a way that Little could demonstrate the
absence of the stump. Therefore, the relevance of the other
excluded photographs is minimal. We cannot conclude that the
District Court's evidentiary ruling constituted an abuse of
discretion.
Is the evidence sufficient to support the jury's verdict?
In reviewing a jury verdict in a criminal case, the proper
inquiry is whether, after the 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 (1979), 443 U.S. 307, 319, 99 S.Ct.
2781, 2789, 61 L.Ed.2d 560, 573; State v. Whitcher (1991), 248
Mont. 183, 187, 810 P.2d 751, 753. Like the defendant in Whitcher,
Little argues that the jury verdict cannot stand because it is
based on the uncorroborated testimony of the victims.
We have held repeatedly that convictions for sexual
intercourse without consent and sexual assault are sustainable
based entirely on the uncorroborated testimony of the victim.
Whitcher, 810 P.2d at 754: Gilwin, 756 P.2d at 453; Howell, 839
P.2d at 93: State v. Maxwell (1982), 198 Mont. 498, 503, 647 P.2d
348, 351. Here, both victims testified that Little had performed
various sexual acts upon them during the specified time periods,
while they were under the age of 16. Further, Little's natural
daughter confirmed that the younger victim had told her of Little's
sexual acts.
We hold that, based upon the evidence presented at trial, a
rational trier of fact could have found the defendant guilty of the
offenses of sexual assault and sexual intercourse without consent
beyond a reasonable doubt.
Affirmed.
October 4, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Teresa McCann O'Connor
O'Connor & O'Connor
208 North Broadway, Suite 412
Billings, MT 59101
Hon. Joseph P. Mazurek, Attorney General
Patricia J. Jordan, Assistant
215 N. Sanders, Justice Building
Helena, MT 59620
Dennis J. Paxinos
Yellowstone County Attorney
P. 0. Box 35025
Billings, MT 59107
Marcia Sept
Deputy County Attorney
P. 0 . Box 35025
Billings, MT 59107
ED SMITH
CLERK OF THE SUPREME COURT
STATF, OF MONTANA