No. 84-178 

IN TIE SUPREME COURT OF THE STATE OF MONTANA 

1984 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsANTHONY ROGERS, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Charles Luedke, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant : 

John L. Adams, Billings, Montana 

For Respondent : 

Hon. Mike Greely, Attorney General, Helena, Montana 

Harold F. Iianser, County Attorney, Billings, Flontana 

Submitted on Briefs: September 27, 1984 

~~~id~d: November 15, 1984 

Filed: #0\1 1 :< 1384 

- Clerk 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Defendant Anthony Rogers appeals his conviction of 

felony assault and sexual intercourse without consent 

following a jury trial in the Yellowstone County District 

Court. We affirm the conviction. 

Stella Smith left her two daughters, Lanny Smith, aqe 

four, and Estelle Smith, age two, in the care of defendant 

and one of his roommates, Claudia Best, while she left town 

for several days. The girls remained at defendant's house 

for four days, June 6, 1983 through June 10, 1983. On June 

10, Stella's brother, Kim Krecklaw, and sister-in-law, Lori 

Fresonke, went to defendant's house and returned home with 

the girls. While bathing Estelle, Lori noticed bruises on 

her lower back. Lori then called the Yellowstone County 

Department of Welfare. 

The children were examined that evening by Dr. John 

Sauer, Chairman of the Yellowstone County Sexual Abuse Team. 

At trial, Dr. Sauer testified that he found several bruises 

on Estelle's lower back, the characteristics of which 

indicated a significant amount of force had. been used on the 

child. He concluded she had been physically abused. His 

examination of Lanny revealed several abnormal conditions in 

the vaginal area consistent with the insertion or attempted 

insertion of a finger into the vagina or the fondling of the 

vaginal opening. He concluded there had been direct sexual 

or physical contact. During the examination, Lanny twice 

volunteered that defenda-nt had hurt her with his hand in her 

vaginal area. 

Lanny and Estelle were then placed in a receiving home. 

Detective Frank Brun, experienced in sexual abuse and 

incest cases, and Connie Harvey, social worker, conducted a 

videotaped interview of Lanny on June 15, 1983. Lanny refers 

to her vaginal area as her pee pee. Near the beginning of 
the interview, Connie asked Lanny if anyone had ever hurt her 

pee pee. Lanny replied that yes, Tony had done so. Tony is 

the name Lanny calls defendant. During the interview, Lanny 

also demonstrated on anatomically correct dolls how defendant 

had hurt her by placing her finger in the doll's vagina. 

This demonstration was later repeated twice at trial. 

Detective Brun interviewed defendant twice, July 1, 1983 

and July 30, 1983. An information charging defendant with 

two counts, sexual intercourse without consent and felony 

assault, was filed September 19, 1983. A jury trial was held 

in January of 1984. Defendant was convicted and sentenced to 

twenty years on the sexual intercourse without consent charge 

and five years on the assualt charge, the sentences to run 

concurrently. 

At the trial, defendant denied committing either felony. 

He also stated that he was never alone with the girls for 

more than a few minutes at a time. However, his roommates, 

Claudia Best and Wayne Hartford testified that defendant had 

been alone with the girls for extended periods of time on 

several occasions. Claudia also testified that she had 

noticed bruises on Estelle's back while the girls were at the 

house. 

At defendant's request, the trial judge examined Lanny 

for witness competency and found her competent to testify. 

There is no record of that examination. In his brief, 

defense counsel states that the competency examination was 

very similar to the preliminary questions asked of Lanny at 

trial. Responding to those questions, Lanny told the 

prosecuting attorney her age, the date of her birthday, how 

old she would be then, counted to ten and said the alphabet. 

Then the following dialogue occurred: 

"Q. Can you tell me what this is? 

"A. Cup. 

"Q. And what color is the cup? 
"A. Yellow. 

"MS. OICONNOR: Let the record reflect that I am 

holding a yellow cup. 

"Q. If I said that this cup was green, would I be 

telling the truth or a lie? 

"A. A lie. 

"Q. When I say that it's yellow, am I telling the 

truth or a lie? 

"A. The truth. 

"Q. What color is this piece of paper? 

"A. Pink. 

"Q. If I said that this piece of paper was brown, 

woul-d I be telling the truth or a lie? 

"A. A lie. 

"Q. That's right. When you are in this room, do 

you have to tell the truth or a lie? 

I1A. Truth. 

"Q. Why? 

"A. 'Cause it's very important. 

"Q. That's right. It's very important. Let me 

put you down one more time." (Transcript, pp. 

176-177) 

Lanny testified while sitting on the prosecuting 

attorney1 s lap. Cross-examination was cond.ucted in the same 

manner, although defense counsel had been offered the 

opportunity to hold Lanny in his lap during 

cross-examination. In addition to telling the jury what 

defendant had done to her, Lanny also testified that 

defendant had hurt her sister, Estelle, by spanking her. 

Detective Brun also testified at trial. On direct 

examination, Brun set forth his experience with sexual abuse 

cases, stated that defendant had denied harming either child 

and recounted portions of the videotaped interview with 

Lanny. On cross-examination, after learning that Brun had 

not recently reviewed his notes on the case, defense counsel 

attempted to refresh Brun's recollection with the transcript 

of the videotaped interview. In an apparent effort to 

discredit Lanny's testimony at trial, defense counsel began 
reading verbatim from the transcript. Following objections 

by the prosecuting attorney, defense counsel ultimately 

entered the transcript into evidence. Subsequently, the 

prosecution offered the videotape as the best evidence of 

that transcript. The videotape was admitted and shown to the 

jury. 

Defendant raises the following issues on appeal of his 

convictions: 

1. Did the trial court properly declare Lanny competent 

to testify? 

2. Did. the trial court properly admit a videotaped 

interview of Lanny? 

Rule 601, Mont.R.Evid. states: 

"Rule 601. Competency in general; 

disqualification. 

C 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. I' 

This rule has no age requirement. 

Prior to testifying, Lanny illustrated to both the judge 

and the jury that she knew the difference between the truth 

and a lie. She also illustrated that she knew the importance 

of telling the truth. 

Lanny's testimony was basically consistent with the 

reports she had given to Dr. Sauer, Detective Brun and Connie 

Harvey regarding the incidents. The inconsistencies mostly 

involved dates and times, details about which any witness may 

become confused. Those inconsistencies do not affect a 

witness' competence. Rather, they are for the jury to 

consider when determining a witness' credibility. State v. 

Shambo (1958), 1-33 Mont. 305, 309, 322 P.2d 657, 659. 
'Whether a child is competent to be a witness is a 

determination left largely to the discretion of the trial 

court. State v. Campbell (1978), 176 Mont. 525, 529, 579 

P.2d 1231, 1233. There was no clear abuse of that discretion 

here. 

Defendant further complains that allowing Llanny to sit 

on the prosecuting attorney's lap while testifying was 

prejudicial. Specifically, defendant alleges that it 

prevented him from conducting an adequate cross-examination. 

However, defendant cites no specific example of prejudice. 

In fact, he was able to conduct a detailed cross-examination 

of Lanny. " [I]n a criminal case, if prejudice is alleged, 

it will not be presumed, but it must be established from the 

record that a substantial right was denied. (cite omitted)." 

State v. Dupre (Mont, 1982), 650 P.2d 1381, 1386, 39 St.Rep. 

1660, 1666. The record in this case shows no prejudice. 

Further, Rule 611, Mont.R.Evid. states in pertinent 

part : 

"Rule 611. Mode and order of interroqation - and 

presentation; re-examination and recall; 

confrontation. 

(a) Control by court. The court shall exercise 

reasonable control over the mode and order of 

interrogating witnesses and presenting evidence so 

as to (1) make the interrogation and presentation 

effective for the ascertainment of the truth, (2) 

avoid needless consumption of time, and (3) protect 

witnesses from harassment or undue embarrassment." 

Pursuant to this rule, the trial court was well within its 

discretion in allowing Lanny to sit on the prosecuting 

attorney's lap. That posture assisted in directing Lanny ' s 

attention to the questioning and provided comfort to her 

during a difficult and unfamiliar experience. 

Turning to the second issue, defendant contends that it 

was reversible error for the trial court to admit the 

videotape of the interview into evidence because he was not 

present to confront and cross-examine Lanny. The interview 

took place several weeks prior to defendant's arrest. 
Defendant relies on sections 46-15-401 and -402, PICA, to 

support his position. 

"46-15-401. When videotaped testimony admissible. 

For any prosecution commenced under 45-5-502(3), 

45-5-503, 45-5-505, or 45-5-613, the testimony of 

the victim, at the request of such victim and with 

the concurrence of the prosecuting attorney, may be 

recorded by means of videotape for presentation at 

trial. The testimony so recorded may be presented 

at trial and shall be received into evidence. The 

victim need not be physically present in the 

courtroom when the videotape is admitted into 

evidence. 

"46-15-402. Procedure at videotaping. (1) The 

procedural and evidentiary rules of the state of 

Montana which are applicable to criminal trials 

within the state of Montana shall apply to the 

videotape proceedings authorized by this part. 

"(2) The district court judge, the prosecuting 

attorney, the victim, the defendant, the 

defendant's attorney, and such persons as are 

deemed necessary by the court to make the 

recordings authorized under this part shall be 

allowed to attend the videotape proceedings." 

These sections apply only to videotaped testimony to be used 

in lieu of testimony by the witness at trial. See the 

February 8, 1979 minutes of the House Judiciary Committee and 

the January 29, 1979 minutes of the Senate Judiciary 

Committee regarding Senate Bill 197. Here, Lanny was present 

and testified at trial. Defendantr s rights to confrontation 

and cross-examination were preserved. 

It was defendant who moved to have the transcript of 

that interview admitted into evidence. Once that transcript 

was admitted, it was totally within the province of the trial 

court to allow into evidence what it considered to be a more 

accurate version of the same thing. "The Federal Rules of 

Civil Procedure [as well as Montana's rules] provide for the 

taking of depositions by other than stenographic means and 

presuppose their use in court. (citation omitted) No valid 

distinction exists between the use of a deposition taken by 

video tape and the use of a statement taken by video tape." 

Hendricks v. Swenson (1972), 456 F.2d 503, 505. 

Moreover, it was defendant who moved to have the 

transcript of that interview admitted into evidence. 
Pursuant to Rule 1002, Mont. R. Evid. , once the transcript was 

admitted, the videotape itself could be admitted as the "best 

evidence" of that transcript. See, for example, Duncanson 

v. State (Ind. 1979), 391. N.E. 2d 1157, where the court held 

a tape recording to be the best evidence of its own contents. 

Defendant's conviction is affirmed. 

We concur: