No. 84-178 INTIE SUPREME COURT OF THE STATE OFMONTANA 1984

THE STATE OFMONTANA, Plaintiff and Respondent,

-vsANTHONY ROGERS, Defendant and Appellant.

APPEAL FROM: DistrictCourtof the ThirteenthJudicialDistrict, In and for theCountyof Yellowstone, TheHonorableCharlesLuedke, Judge presiding.

COUNSEL OF RECORD:

For Appellant: John L. Adams, Billings, Montana

For Respondent: Hon. Mike Greely, AttorneyGeneral, Helena, Montana HaroldF. Iianser, CountyAttorney, Billings, Flontana

Submittedon Briefs: September 27, 1984 ~~~id~d: November 15, 1984

Filed:

### #0\11

## :< 1384

- ClerkMr. 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 ofWelfare. 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 forcehad.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-nthad 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 ofthe interview, Connie asked Lanny if anyonehad ever hurt her pee pee. Lanny replied thatyes, Tony had done so. Tony is the name Lanny callsdefendant. During the interview, Lanny alsodemonstrated on anatomically correct dollshow defendant had hurt her by placing her finger in the doll's vagina. This demonstrationwas later repeated twice at trial. DetectiveBrun intervieweddefendant 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 trialwas held in January of 1984. Defendantwas convicted and sentenced to twenty yearson the sexual intercoursewithout consent charge and five years on the assualt charge, the sentences to run concurrently. At the trial,defendantdenied 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 girlswere 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 shewould be then, counted to ten and said the alphabet. Then the followingdialogue 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 Ibe telling the truth ora 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 thispiece ofpaper? "A. Pink. "Q. If I said that this piece ofpaper was brown, woul-dIbe telling the truth or a lie? "A. A lie. "Q. That's right. When you are in this room, do youhave to tell the truth or a lie? I1A. Truth. "Q. Why? "A. 'Causeit'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-examinationwas cond.uctedin 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 beganreading 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. Thevideotape was admitted and shown to the jury.Defendant raises the following issues on appeal of his convictions: 1. Did the trial courtproperly declare Lanny competent to testify? 2. Did. the trial court properly admit a videotaped interviewofLanny? Rule 601,Mont.R.Evid. states: "Rule 601. Competency in general; disqualification. Ca 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 toboth the judge and the jury that she knew the difference between the truth and a lie. She also illustrated that sheknew the importance of telling the truth. Lanny's testimony was basically consistent with the reports shehad given to Dr. Sauer,Detective Brun and Connie Harvey regarding the incidents. The inconsistencies mostly involved dates and times,details aboutwhich anywitnessmay 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),1-33Mont. 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. Therewas no clear abuse of that discretion here.Defendant further complains that allowing Llannyto 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 substantialrightwas denied. (citeomitted)." State v. Dupre (Mont,1982), 650P.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 consumptionof 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 supporthisposition. "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 suchvictim and with the concurrenceof theprosecuting 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 thevideotape proceedings." These sections apply only to videotaped testimony to be used in lieu of testimony by the witness at trial. See the February 8,1979minutes of the House Judiciary Committee and the January 29, 1979 minutes of the Senate Judiciary Committee regarding SenateBill 197. Here,Lannywas present and testified at trial. Defendantr s rights to confrontation and cross-examinationwerepreserved. It was defendant who moved to have the transcript of that interview admitted into evidence. Once that transcript was admitted, itwas totallywithin theprovince of the trial court to allow into evidencewhat it considered to be a more accurate version of the same thing. "TheFederal Rules of Civil Procedure [aswell asMontana'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." Hendricksv. 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 transcriptwas admitted, thevideotape 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 thebest evidence of its own contents. Defendant's conviction is affirmed.

We concur: