NO. 87-494 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsJERR-Y EILER, 

Defendant and Appellant. 

APPEAL FROM: The District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable B.W. Thomas, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Moses Law Firm; Charles F. Moses argued, Billings, 

Montana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Betsy Brandborg argued, Asst. Atty. General, Helena 

David Rice argued, County Attorney, Havre, Montana 

Submitted: June 141 1988 

Decided: September 14, 1988 

Filed: $j~p 1 4 1988' 

Clerk 
Mr. Chief Justice J. A. Turnage delivered the Opinion of the 

Court. 

Defendant Jerry Eiler appeals his jury conviction of 

sexual assault in violation of S 45-5-502, MCA, in the 

Twelfth Judicial District, Hill County, Montana. Defendant 

was charged by information on February 5, 1986, with sexually 

assaulting his then four-year-old stepdaughter, S.A. Eiler 

was sentenced to a term of fifteen years with the last seven 

years suspended. We affirm. 

Defendant raises the following issues on appeal: 

1. Did the District Court properly determine that the 

victim, eight-year-old S.A., was competent to testify to 

incidents which occurred four years earlier? 

2. Did the District Court properly allow leading 

questions by the prosecuting attorney during the deposition 

of the eight-year-old victim? 

3. Did the District Court properly admit evidence of 

defendant Eiler's prior acts with T.M., his stepdaughter in a 

previous marriage? 

4. Did the District Court properly rule that Dr. 

Jarvis, a psychologist who examined S.A., was a qualified 

expert whose testimony was permissible? 

5. Did the evidence support the jury conviction of 

guilty beyond a reasonable doubt? 

The victim, S.A., was born on January 21, 1978. In 

September, 1980, she and her mother Sharon began living with 

Jerry Eiler, defendant and appellant in this action. Sharon 

and defendant were married in October, 1981. In the summer 

of 1982, Eiler had sexual contact with S.A. while she was 

riding with him on a tractor. 

In January, 1983, Sharon went to the State of Washington for treatment of alcoholism, for a period of one month. 

During this time S.A. stayed with Eiler. While Sharon was 
absent Eiler had sexual contact with S.A. in the family home 

on two separate occasions. 

Shortly after Sharon returned home from Washington, she 

divorced Eiler. 

By the fall of 1983, S.A. had become disobedient, 

destructive, and towards other children, abusive. S.A. also 

began masturbating frequently. This unusual behavior prompted Sharon to take S.A. to Dr. Jarvis, a psychologist, who 

concluded from his diagnosis that S.A. had been sexually 

abused. He testified to this at trial. 

In February of 1986, Eiler was charged with sexual 

assault of his stepdaughter. S.A. testified by videotape 

deposition at trial. It was determined by the District Court 

at the deposition that S.A. was competent to testify. 

S.A. testified that she understood what it meant to 

tell the truth and realized there were consequences if she 

failed to tell the truth. The videotaped deposition revealed 

that she was crying, quite upset, and was hesitant to answer 

questions concerning specific details of the alleged sexual 

contacts. The prosecution was allowed to use leading questions, and S.A. testified that the defendant had touched her 

"private parts" with his hands and had instructed her to 

touch his "private parts." S.A. testified that she did not 

tell anyone "because he [Eiler] said he would spank me." 

T.M., Eiler's stepdaughter in a previous marriage, 

testified at trial that Eiler forced her to have intercourse 

with him regularly from 1973 when T.M. was age nine, until 

1977. Eiler and T.M.'s mother, J.E., began living together 

in 1973, were married in 1975, and were divorced in 1977. 

Counsel for the defense objected to this testimony of prior 

acts by T.M., but the objection was overruled. Eiler was 

convicted by jury verdict of sexually assaulting S.A. 
Appellant first contends that S.A., the victim, was not 

competent to testify. S.A. was four years old when forced to 

engage in sexual contact with Jerry Eiler and she was eight 

years old when she testified to the acts. Rule 601, 

M.R.Evid., is controlling: 

Rule 601. Competency in general; 

disqualification. 

(a) General rule competency. Every 

person is competent to be a witness 

except as otherwise provided in these 

rules. 

(b) Disqualification of witnesses. A 

person is disqualified to be a witness 

if the court finds that (1) the witness 

is incapable of expressing himself 

concerning the matter so as to be 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 requirements for determining competence are "capacity of 

expression and appreciation of the duty to tell the truth." 

State v. Phelps (Mont. 1985), 696 P.2d. 447, 453, 42 St.Rep. 

305, 312. The rule imposes no age requirement for testifying. State v. Campbell (1978), 176 Mont. 525, 579 P.2d 1231; 

State v. Smith (1984), 208 Mont. 66, 676 P.2d 185. This 

Court has allowed testimony of five-year-old victims in 

Phelps, 696 P.2d 447, 42 St.Rep. 305, and State v. A.D.M. 

(Mont. 1985), 701 P.2d 999, 42 St.Rep. 916; and testimony of 

four-year-old victims in State v. D.B.S. (Mont. 1985), 700 

P.2d 630, 42 St.Rep. 770, Campbell, 176 Mont. 525, 579 P.2d 

1231, and State v. Rogers (Mont. 1984), 692 P.2d 2, 41 

St.Rep. 2131. 

Appellant contends that S.A. did not have the ability 

to comprehend and relate what occurred. Appellant refers to 
S.A.'s testimony which indicates she could not clearly remember details of the alleged acts. First, she could not remember where she lived in 1982 and 1983. Second, when the 

sexual contact occurred, she could not specifically recall 

whether she was standing or sitting on the tractor. And 

third, S.A. could not remember what clothes she and Eiler 

were wearing when the acts took place. However, it has been 

established by this Court that "children especially 

four-year-olds are not governed by the clock and calendar as 

adults are. They are generally at a loss to apply times or 

dates to significant events in their lives." State v. 

D.B.S., 700 P.2d at 634. 

We have stated that what is important is the capacity 

to remember the occurrence and the ability of the witness to 

relate her impressions of what occurred. State v. Howie 

(Mont. 1987), 744 P.2d 156, 44 St.Rep. 1711. S.A.'s testimony is consistent with her prior reports of the incidents and 

is supported by Dr. Jarvis' testimony. This shows her capacity to remember the occurrence and her ability to relate her 

impressions. In State v. A.D.M. (Mont. 19851, 701 P.2d 999, 

42 St.Rep. 916, a five-year-old was held to be competent 

because her testimony was uniform with her prior reports and 

was confirmed with the testimony of a psychologist. 

Although appellant argues that the inconsistencies in 

S.A.'s testimony are indicative of her incompetency, we held 

in Phelps, 696 P.2d at 453, that "the inconsistencies of [the 

victim's] perception of where he was do not affect his competence." The record shows that S.A. could not answer inquiries of where she lived or what she was doing in 1982 and 

1983. However, when asked where she lived or what she was 

doing when she was four years old, she had a more specific 

time frame in which she as a child could work and could 

answer the questions clearly. 
In addition, we have ruled that inconsistencies go to 

the credibility of the evidence, the weight of which is 

decided by the jury. Rogers, 692 P.2d 2, 5; State v. Shambo 

(1958), 133 Mont. 305, 322 P.2d 657, 659. 

Witness competency is within the discretion of the 

trial court. D.B.S., 700 P.2d at 636; Phelps, 696 P.2d at 

453; Rogers, 692 P. 2d at 5. The judge in this case did not 

abuse his discretion in deciding that S.A. understood her 

duty to tell the truth and had the ability to clearly cornmunicate her accounts of the events in question. 

Appellant, though, argues that S.A. did not understand 

the duty to tell the truth. Counsel for the defendant asked 

S.A. when she discovered the difference between the truth and 

a lie. Her response was that she did not know. This question is a difficult question for any adult to answer. It 

would be even more rare for a child to know when she learned 

the difference between the truth and a lie. 

In order to show that S.A. did not know the difference 

between the truth and a lie, appellant quoted a portion of 

S.A.'s deposition. 

Q. [By Mr. Rice] Is there a reason for 

telling the truth? 

A. Yes. 

Q. What's the reason for telling the 

truth? (No response) Do you believe in 

God? 

A. Yes. 

Q. Okay. And does God have anything to 

do with you telling the truth? 

A. Yes. 

Q. What does God have to do with that? 

A. I don't know. 
In citing this testimony counsel for the defendant contends 

that S.A. does not know what it means to tell the truth. 

However, counsel neglected to call attention to the statements made immediately prior to this testimony: 

Q. [By Mr. Rice] Okay. Now do you 

know what it means to tell the truth? 

A. Yes. 

Q. What does it mean to tell the truth? 

A. To tell what really happened. 

Counsel also failed to cite the testimony which continued 

after the referred-to passage in appellant's brief: 

Q. Okay. Does God care if you tell the 

truth? 

A. Yes. 

Q. And do you wish to please God? 

A. Yes. 

Q. Okay. What do you think happens if 

you don't tell the truth? 

A. You won't be resurrected. 

Q. Okay. Do you get in trouble for not 

telling the truth, not telling the truth 

at school. 

A. Yes. 

Q. What happens if you don't tell the 

truth at school? 

A. You have to go to detention. 

Q. What is detention? 

A. You have t.o stay in in recess. 
Q. And do you ever--would you get in 

trouble at home for not telling the 

truth? 

A. Yes. 

Q. What happens if you don't tell the 

truth? 

A. You have to go to bed. 

In addition, Dr. Jarvis testified that in his opinion 

S.A. knew the difference between the truth and a lie. 

[By Dr. Jarvis] In my opinion she could 

clearly distinguish between the truth 

and a lie. 

Her telling me at times that she talked 

to her mother, and finding out, indeed, 

she had talked with her mother about 

those kinds of things. 

These passages indicate that S.A. understood what the 

truth was and that there were consequences if she told a lie. 

After hearing this testimony, the trial court judge was 

satisfied that S.A. had the ability to discern the difference 

between the truth and a lie. 

Appellant's counsel also makes allegations that in 

addition to an ability to appreciate telling the truth, S.A. 

had been coached to say that the sexual abuse had occurred. 

However, Dr. Jarvis testified that he saw no signs of coaching. He stated that her story was consistent over time and 

when he asked who had told her to say what she had said, S.A. 

told Dr. Jarvis that no one had told her to say those things. 

The District Court properly used its discretion in 

deciding that S.A. was competent to testify. 
The second issue on appeal is whether the District 

Court properly permitted the prosecution to use leading 

questions with the eight-year-old victim. 

Rule 611(c) of the Montana Rules of Evidence reads in 

pertinent part: 

Leading questions should not be used on 

the direct examination of a witness 

except as may be necessary to develop 

his testimony. 

Appellant objected to the leading nature of the prosecution's questions to the victim, S.A. However, in Bailey v. 

Bailey (1979), 184 Mont. 418, 421, 603 P.2d 259, 261, we held 

that "whether or not [leading questions] will be allowed is a 

matter for the trial court's discretion." In Bailey the 

court allowed leading questions where the child was 

withdrawn. 

In the case on appeal, Dr. Jarvis testified that S.A. 

and other children who are involved in sexual abuse cases, do 

not want to talk about the incident. S.A. Is videotaped 

deposition clearly corroborates Dr. Jarvis' expert opinion 

that child victims of sexual abuse are reticent witnesses. 

The trial court also noted in its memorandum on the competency issue, "it is noticeably difficult for her to testify 

about her experiences, a circumstance which is understandable 

and not unusual for a child witness in this type of case." 

We find that there was no abuse of discretion by the District 

Court for allowing leading questions by the prosecution. 

The third issue before this Court is whether the testimony by T.M. of prior acts was properly admitted by the trial 

judge. 

T.M., a stepdaughter of Eiler's in a previous marriage, 

testified that she had been sexually abused by Eiler 
frequently between 1973 and 1977. In her testimony she 

stated that in 1973, when she was nine, Eiler asked T.M. to 

come to his room. He told her to take off her pajamas and 

then felt her breasts and vagina and told her to touch his 

penis. It was her testimony that she did so in fear that 

Eiler would hurt her mother if she did not cooperate. T.M. 

stated that this incident and others occurred when her mother 

was working nights from 10:OO p.m. to 5:00 a.m. and Eiler had 

opportunity to be alone with her. In subsequent incidents 

while on hunting trips alone with T.M. or in a laundry room 

where Eiler worked, T.M. was forced to have intercourse with 

him. These acts continued from 1973 to 1977 when Eiler and 

J.E., T.M.'s mother, divorced. 

Appellant objected to the preceding testimony on the 

ground that it was in violation of Rule 404 (b) , M.R.Evid., 

which states: 

(b) Other crimes, wrongs, acts. 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 therewith. It may, 

however, be admissible for other purposes, such as proof of motive, opportunity I intent, preparation, plan I 

knowledge, identity, or absence of 

mistake or accident. 

Appellant contends that the effect of the prior acts evidence 

is prejudicial to the defendant because it was offered to 

show Eiler's depravity or criminal propensities. However, 

respondent made it clear that the evidence was being offered 

to show plan, motive, or opportunity as is permitted by the 

rule. 

In State v. Just (1979), 184 Mont. 262, 602 P.2d 957, 

we set forth procedures which must be strictly followed when 

evidence of other crimes is to be offered as testimony. 
(a) Evidence of other crimes may not be 

received unless there has been notice to 

the defendant that such evidence is to 

be introduced. . . . Additionally, the 

notice to the defendant shall include a 

statement as to the purposes for which 

such evidence is to be admitted. 

(b) At the time of the introduction of 

such evidence, the trial court shall 

explain to the jury the purpose of such 

evidence and shall admonish it to weigh 

the evidence only for such purposes. 

(c) In its final charge, the court 

should instruct the jury in unequivocal 

terms that such evidence was received 

only for the limited purposes earlier 

stated and that the defendant is not 

being tried and may not be convicted for 

any offense except that charged, warning 

them that to convict for other offenses 

may result in unjust double punishment. 

Just, 602 P.2d at 963-964. 

Prior to trial, the prosecution filed a notice of 

intent to rely on prior acts. The District Court admonished 

the jury before T.M. testified that the evidence they were 

about to hear was to be considered only to show plan, motive, 

or opportunity. Plus, Instruction No. 13 was submitted which 

reminded the jury that the evidence of prior acts was offered 

only to show proof of motive, plan, or knowledge. By adhering to the Just rule, the prosecution assured that the defendant would not be prejudiced by the evidence of prior acts. 

Just also provided a four-point test to which the 

evidence of prior acts is applied, three parts of which were 

first identified in State v. Jensen (1969), 153 Mont. 233, 

239, 455 P.2d 631, 634, with the addition of a fourth part 

from Pule 403, M.R.Evid. 

1. Similarity of crimes or acts; 
2. Nearness in time; and 

3. Tendency to establish a common 

scheme, plan, or system; and 

4. The probative value of evidence is 

not substantially outweighed by the 

prejudice to the defendant. 

Just, 602 P.2d at 961. 

We conclude that the District Court considered all four 

elements and properly admitted testimony of T.M. regardi-nq 

defendant's other crimes. 

1. Similarity of crimes or acts. 

Appellant, in his brief, contends that the acts are not 

similar, without articulating why they are not. The crime 

charged here is sexual abuse of a stepdaughter. The prior 

acts testified to by T.M. were also sexual acts with Eiler 

when she was his stepdaughter. Both girls were minors when 

they were forced to engage in the sexual activities. Appellant points out that S.A. was subject to "touching" and T.M. 

testified that she had unwillingly engaged in intercourse and 

that these acts are not similar. However, the first acts to 

which T.M. was subject by Eiler were acts of "touching" also. 

In addition, we established in State v. Tecca (Mont. 1986), 

714 P.2d 136, 43 St.Rep. 264, that the prior acts need not be 

identical to the offense committed but be merely of "sufficient similarity." Tecca was applied to State v. Long (Mont. 

1986), 726 P.2d 1364, 43 St.Rep. 1948. The defendant in Long 

was convicted of sexual abuse for "rubbing" the clothed 

bottom of a five-year-old. This was deemed sufficiently 

similar to the prior acts of "rubbing" the genitals of two 

four-year-olds after their pants had been removed. The acts 

here of sexual contact with stepdaughters are sufficiently 

similar. 
2. Nearness in time. 

Appellant contends that the time between the offense 

charged and the prior acts, five years, is too remote in 

time. To support this allegation appellant cites State v. 

Hansen (1980), 187 Mont. 91, 608 P.2d 1083, where we allowed 

a period of two and one-half years between acts, and State v. 

Stroud (Mont. 1984), 683 P.2d 459, 41 St.Rep. 919, in which 

testimony of prior acts three and one-half years previously 

was admitted. On the other hand we have made reference to 

putting a cap on the time frame between acts in State v. 

Tecca (Mont. 1986), 714 P.2d 136, 43 St.Rep. 264, where the 

Court stated that a single act nine years before would be too 

remote. 

The five-year span involved here is significant to show 

that defendant engaged in sexual activities with his stepdaughters only when he had the opportunity. Eiler had sexual 

contact with T.M. between 1973 and 1977, when he was married 

to her mother, J.E. The sexual activities with S.A. occurred 

when he was married to Sharon, and S.A. was his stepdaughter, 

in 1982 and 1983. He did not have parental control over a 

minor girl between 1977 and 1982 and therefore did not have 

the opportunity. Lack of opportunity in this case causes the 

actual time period between the two incidents to be less 

significant. State v. T.W. (Mont. 1986), 715 P.2d 428, 43 

St.Rep. 368. 

In State v. T.W. the defendant was convicted of sexually assaulting his developmentally disabled sister. Evidence of similar sexual abuse was presented, but the 

defendant objected on the grounds that the evidence was too 

remote in time. We held that the evidence was not too remote 

because during the four-year interval in which the defendant 

did not sexually ahuse his sister he was in the military. He 
engaged in sexual contact with her prior to enlisting in the 

military and at the first opportunity after being discharged. 

In this case, Eiler engaged in sexual abuse during the 

time that he had parental control over a stepdaughter. These 

dates were 1973 through 1977 and 1982 through 1983. 

It was held in State v. Fitzpatrick (1980), 186 Mont. 

187, 606 P.2d 1343, and State v. Doll (Mont. 1985), 692 P.2d 

473, 42 St.Rep. 40, that remoteness affects credibility of 

the evidence and not its admissibility. The evidence here 

was properly admitted for the jury to weigh. 

3. Tendency to establish a common scheme, 

plan, or system. 

The evidence testified to by T.M. was brought forward 

by the prosecution to show motive, plan, or knowledge, as 

required by the procedures in Just. Rule 404 (b), M.R.Evid., 

codifying the rule pertaining to admissibility of prior acts, 

recognizes some allowed exceptions and includes in its list, 

opportunity. In this case defendant engaged in sexual contact 

when the opportunity presented itself and the evidence shows 

motive to engage in sexual contact with minor girls. 

Eiler coerced S.A. to participate in sexual touching on 

three occasions. The first was when they were alone on the 

tractor. The second and third times occurred when S.A.'s 

mother Sharon was in Washington for treatment of alcoholism 

and Eiler and S.A. were alone in his bedroom. These were the 

first opportunities Eiler had to engage in sexual contact 

with a stepdaughter since 1977 when he divorced J.E. Between 

1973 and 1977, when T.M. was Eiler's stepdaughter, acts of 

sexual contact and intercourse occurred when the two were 

alone either when T.M.'s mother worked nights or when Eiler 

and T.M. went hunting. 
Like the defendant in State v. T.W., who sexually 

assaulted his sister before and after his military tour, 

Eiler forced sexual contact with his stepdaughters when given 

the opportunity. Rule 404(b) provides that evidence of prior 

acts is admissible for a showing that the defendant acted 

when he had the opportunity. The evidence in the case on 

appeal shows that Eiler acted only when he had parental 

control over a stepdaughter. Only when he could threaten 

punishment was he able to force the girls into engaging in 

sexual relations. T.M. testified that she engaged in the 

touching and sexual intercourse because she was afraid that 

Eiler would hurt her mother if she did not obey his commands. 

S.A. testified that Eiler threatened a spanking if she did 

not cooperate. 

There is also some showing of motive behind Eiler's 

actions. T.M.'s testimony showed that each time Eiler married he had control over a stepdaughter and sexually abused 

her when they were alone. The motive behind this is Eiler's 

sexual interests in young girls. Just requires only a "tendency" to establish a common scheme, plan, or system. Just, 

602 P.2d at 961. This tendency is shown by Eiler's actions. 

In Just we stated that the prior acts "testified to 

occurred between the defendant and the victim; all transpired 

when the two were alone; and all involved essentially identical behavior on the part of the defendant." Just, 602 P.2d 

at 961. 

In the instant appeal, although the victims were different, the acts transpired when Eiler was alone with each 

girl, and the acts involved comparable behavior on the part 

of the defendant. The prior acts here are sufficiently 

similar to the acts with which Eiler was charged to show 

motive behind the actions of the defendant, as required by 

Rule 404 (b) , M.R.Evid. 
In State v. Long (Mont. 1986), 726 P.2d 1364, 43 

St.Rep. 1948, the District Court allowed testimony of prior 

crimes where the defendant touched several little girls in 

the vaginal area or on the upper thighs or "rubbed one girl's 

bottom. " 

. . . the State introduced evidence of 

the prior act to show a common scheme 

plan or design in the defendant's conduct. Because of the subtle nature of 

child abuse, we find the evidence of 

prior acts is similar enough to the acts 

involved to justify its admission. 

Long, 726 P.2d at 1367. A common plan is evident through a 

showing that Eiler had parental control over each stepdaughter and maintained continual control through threats of 

punishment. Therefore, we would also hold that the acts show 

a common scheme, plan or design, apparent from Eiler's acts 

of sexual contact with S.A. and T.M. We hold that the evidence of prior acts showed opportunity and motive. 

4. The probative value of the evidence is not 

substantially outweighed by the prejudice to defendant. 

This Court has established that anytime evidence of 

prior acts is submitted to show plan, scheme, or design there 

will obviously be some prejudicial effect. Just, 602 P.2d at 

961. However, if the evidence shows that the acts were 

similar, that they were near in time, and that they do in 

fact show a tendency to establish a common plan, scheme, or 

design, these factors combine to give great probative weight 

to the evidence of prior acts. Under the discretion of the 

District Court the prejudice was weighed against the probative effect. The procedural safeguards of Just were followed 

assuring less likelihood of prejudice to the defendant. 

Although T.M.'s testimony is prejudicial to Eiler, "[gliven 
the elusive nature of sexual assault against very young 

children, [the witness's] testimony was probative of the 

State's theory that defendant's actions were not an isolated 

event." Long, 726 P.2d at 1367-68. We hold that the evidence 

of prior acts was properly admitted by the District Court. 

The fourth issue is whether the District Court properly 

ruled that Dr. Jarvis, S.A.'s psychologist, was a qualified 

expert and that his testimony was permissible. After Dr. 

Jarvis testified, defense counsel moved the court to strike 

his testimony on the grounds that (1) he was not a qualified 

expert in child psychology, and (2) his opinion was not 

based on medical certainty. 

Appellant contends that Dr. Jarvis is not a qualified 

expert in the field of child psychology simply because Dr. 

Jarvis holds no degree in child psychology. The trial court, 

though, determined that he was sufficiently qualified. The 

appropriate rule of evidence, Rule 702 M. R. Evid, states: 

If scientific, technical, or other 

specialized knowledge will assist the 

trier of fact to understand the evidence 

or to determine a fact in issue, a 

witness qualified as an expert by knowledge, skill, experience, training, or 

education may testify thereto in the 

form of an opinion or otherwise. 

Dr. Jarvis holds a Ph.D. in psychology and a masters degree 

in counseling and guidance. Seventy percent of his practice 

involves children who allegedly have been sexually abused. 

He testified that he has attended numerous programs which 

focused on child psychology and sexual abuse, and he is the 

clinical director of a sexual abuse program in Havre, Montana. Taking these credentials into consideration, the 

District Court determined that he was a qualified expert. 
The determination that a witness is an expert witness 

is largely within the discretion of the trial court and such 

determination will not be disturbed on appeal absent a showing of abuse of discretion. State v. Berg (Mont. 1985), 697 

P.2d 1365, 42 St.Rep. 518; State v. Geyman (Mont. 1986), 729 

P.2d 475, 43 St.Rep. 2125; In the Matter of J.W.K. (Mont. 

1986), 724 P.2d 164, 43 St.Rep. 1483. In addition, the 

degree of an expert's qualification goes to the weight of the 

testimony decided by the jury rather than its admissibility. 

Berg, 697 P.2d at 1367; Matter of J.W.K., 724 P.2d at 166. 

The trial judge properly ruled that Dr. Jarvis is an 

expert qualified to testify in cases of sexual abuse of 

children. 

Appellant contends that Dr. Jarvis' diagnosis was 

performed in preparation of trial. However, S.A. was brought 

to Dr. Jarvis by her mother before the mother had any knowledge of possible sexual abuse. Dr. Jarvis stated, "I did no 

preparation for any kind of legal preparation or going to 

Court, which is typically something I do when I am currently 

working with a child." 

Appellant contends, in objecting to Dr. Jarvis' testimony, that his opinion was not based on medical certainty. 

He states that Dr. Jarvis could not say specifically what 

traumatic event caused S.A.'s behavior. Dr. Jarvis, though, 

stated that he believed S.A. had been sexually abused. The 

weight of this testimony is to be decided by the jury. 

Appellant cites State v. Brodniak (Mont. 1986), 718 

P.2d 322, 43 St.Rep. 755, in support of his contention that 

the testimony of Dr. Jarvis was admitted improperly for the 

purpose of testifying to the veracity of S.A. 's testimony. 

However, appellant failed to make this objection at trial. 

If counsel fails to raise an issue at trial, the issue cannot 

be raised fox the first time on appeal. Long, 726 P.2d 
1364; State v. Patton (1979), 183 Mont. 417, 600 P.2d 194. 

The appellant failed to make a timely objection at trial and 

so cannot raise the issue here. 

Appellant also cites Brodniak in support of his objection to Dr. Jarvis' testimony on the grounds that Dr. Jarvis 

was not an appropriate medical physician to give testimony. 

Brodniak stands for the proposition that a psychologist 

expert witness is limited in his opinion testimony. In 

Brodniak, it was held by this Court that an expert witness 

may testify as to his opinion of whether the victim was 

suffering from rape trauma syndrome, but the expert is not 

allowed to opine whether he believed the witness is telling 

the truth or whether he believed the story that the victim 

was narrating. Brodniak, 718 P.2d at 329. 

The fifth issue on appeal here is whether the evidence 

was sufficiently substantial to support the jury verdict 

beyond a reasonable doubt. In Jackson v. Virginia (1979) , 

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, the standard of 

review is whether: 

[alfter viewing the evidence in the 

light most favorable to the prosecution, 

any rational trier of fact could have 

found the essential elements of the 

crime beyond a reasonable doubt. 

Jackson v. Virginia, 443 U.S. at 319. State v. Rodriguez 

(Mont. 1981), 628 P.2d 280, 283, 38 St.Rep. 578F, 5781; State 

v. Geyman (Mont. 1986), 729 P.2d 475, 476, 43 St.Rep. 2125, 

2126. 

Appellant contends that the testimonies of S.A. and 

T.M. were not sufficient for the jury to find guilt beyond a 

reasonable doubt, claiming conjecture and speculation. 

However, it was ruled by the District Court that S.A. was a 

competent witness and clearly gave testimony of abuse by 
Eiler. Her testimony was consistent with what she had told 

Dr. Jarvis when he diagnosed her. Moreover, T.M. corroborated S.A. 's testimony with accounts of prior acts which tended 

to show opportunity and motive behind Eiler's forced sexual 

contacts. 

The sexual assault statute, § 45-5-502(1), MCA, provides that: 

A person who knowingly subjects another 

not his spouse to any sexual contact 

without consent commits the offense of 

sexual assault. 

Section 45-2-101(60), MCA, defines sexual contact as: 

[Alny touching of the sexual or other 

intimate parts of the person of another 

for the purpose of arousing or gratifying the sexual desire of either party. 

S.A. testified that Eiler touched her "private parts" 

and instructed her to touch his "private parts." This testimony clearly shows that any rational trier of fact could have 

found the essential elements of sexual assault against S.A. 

beyond a reasonable doubt. 

Affirmed. 

We concur: 

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

I dissent as to the third issue of whether the 

testimony of J.M. as to prior criminal acts was properly 

admitted by the trial court. 

The general rule is that evidence of other crimes must 

be excluded. Rule 404 (b) , M.R. Evid. In State v. Tiedemann 

(1961), 139 Mont. 237, 362 P.2d 529, we said: 

The general rule should be strictly 

enforced in all cases where applicable, 

because of the prejudicial effect and 

injustice of such evidence, and should 

not be departed from except under 

conditions which clearly justify such a 

departure. The exceptions should be 

carefully limited, and their number and 

scope not increased. 

Tiedemann, 362 P.2d at 531. 

The reason for the rule is that prior bad acts are 

usually considered irrelevant and prejudicial. They tend to 

show defendant is a bad person or has criminal propensities, 

and on that basis juries may find that defendant committed 

the crime actually charged. In other words, they do not 

prove the crime charged, but only go to defendant's character 

or propensities. Also, as a matter of policy, they are 

inadmissible because there is a tendency for the trier of 

fact to give excessive weight to such acts, and to justify 

defendant's punishment irrespective of whether defendant is 

guilty of the present charge. As said in State v. Jensen 

(1969), 153 Mont. 233, 238, 455 P.2d 631, 633: 

"'[tlhat when a defendant is put on trial 

for one offense, he should be convicted, 

if at all, by evidence which shows that 

he is guilty of that offense alone; . . . 1 II 
There are exceptions to the general rule prohibiting 

introduction of prior bad acts. Rule 404(b), M.R.Evid. They 

may be admitted, but only for the purpose of showing motive, 

opportunity, intent, preparation, plan, knowledge, identity, 

or absence of mistake or accident. 

The majority here holds that the evidence of the prior 

acts showed opportunity and motive. Motive is not really an 

issue in this case. It is self-evident that the motive for 

commission of these acts was sexual gratification. 

Opportunity is also not an issue because anyone in a parental 

capacity would have plenty of opportunity to commit this type 

of crime. Moreover, the State appears to have relied on the 

common plan exception for relevance on the bad acts issue, 

not opportunity. 

Beyond the procedural requirements of notice, 

explanations, warnings and instructions, State v. Just 

(1979), 184 Mont. 262, 602 P.2d 957, set out a four-point 

test: similarity of crimes or acts; nearness in time; 

tendancy to establish a plan; and the probative value of 

evidence as weighed against its prejudice to defendant. 

As to similarity, the act charged here was that of 

touching the genitalia by both the victim and the defendant 

and it is the same as some of the acts with J.M., but there 

is nothing distinguishing. The dominant prior acts with J.M. 

were the crimes of sexual intercourse without consent with a 

minor. There is no unique similarity between the prior acts 

and the case at bar other than the fact that both are sex 

crimes. Sexual intercourse without consent is a much more 

serious crime than sexual assault. See §§ 45-5-502 and 503, 

MCA. The former is a sex crime, but it is not the same as 

the latter, just as all larcenies are not the same. In order 

to tie the defendant into a plan or method of operation, 
there must be something distinguishable and identifiable. 

Otherwise the other acts are not relevant and material. 

As to nearness in time, over five years elapsed between 

the last act with T.M. and the first with S.A. There is no 

continuous series of acts tending to show intentional plan by 

defendant. In State v. T.W. (Mont. 1986), 715 P.2d 428, 43 

St.Rep. 368, the interval was four years, and the prior acts 

were with the same victim. Because they were with the same 

victim, the acts in T.W. were more readily admissible. The 

separate crimes in this case were not a part of the history 

of the case, nor did they have any integrated tie-in. They 

were entirely separate, with some even allegedly committed in 

different states. 

To establish a common plan, the "plan" must be a 

general or larger course of action. The State's position is 

that Eiler's plan was to commit sexual assault on a 

stepdaughter when he had an opportunity while the mother was 

out of the household, or when he and the victim were away 

from the household. This is inherently weak. It implies 

that one of the reasons he married S.A.'s mother was because 

she had a minor daughter. There is nothing more here than 

the general acts of a pedophile when he would have 

opportunity. 

The probative value of T.M.'s testimony as to the crime 

charged is outweighed by its prejudice to the defendant. The 

evidence meeting each of the first three tests of the Just 

rule is weak. The testimony of S.A., the victim, is not the 

strongest because of her age and was bolstered Sy the 

testimony of the psychologist. 

Other evidence of defendant's guilt is not so 

overwhelming as to bend the general rule on the 

inadmissibility of evidence of other crimes. The lack of 

strength in the evidence of the crime charged also 
contributed to the prejudicial effect of the prior crimes. 

The defendant in this case should not be punished for the 

alleged crimes against T.M. on which the statute of 

limitations has run. 

Another reason that caution should be employed in the 

admissibility of evidence of other crimes is that it opens up 

other issues which by inference or direct action or comment 

would greatly lessen a defendant's rights against 

self-incrimination as to the crime actually charged. 

If such evidence is ruled admissible to show a plan, 

scheme, etc., then it goes to the merits of the main charge, 

and if defendant testifies, denying and contesting such 

evidence of other crimes, defendant is now into the merits of 

the main charge and defendant has forfeited his or her 

constitutional Fifth Amendment protection as to the main 

charge. See McGahee v. Massey, (1.lth Cir. 1.982), 667 F.2d 

1357, 1362. 

The testimony of T.M. was prejudicial to the defendant 

under these circumstances. It was an abuse of discretion to 

admit such testimony and I would reverse defendant's 

conviction and remand for new trial. 

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

foregoing dissent. 

n