No. 94-195

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

STATE OF MONTANA,

Plaintiff and Respondent,

v.

RENO MCLAUGHLIN,

Defendant and Appellant.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable John M. McCarvel, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Scott A. Albers, Attorney at Law, Great Falls,

Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Jennifer

Anders, Ass't Attorney General, Helena, Montana

Brant Light, Cascade County Attorney, Great Falls,

Montana

Submitted on Briefs: July 6, 1995

Decided: September 8, 1995
Justice W. William Leaphart delivered the Opinion of the Court.

Appellant Reno McLaughlin appeals from his convictions in the

Eighth Judicial District Court, Cascade County, for two counts of

sexual intercourse without consent and his designation as a

dangerous offender. We affirm.

S.R.M. is the natural mother of J.K.M., a ten-year-old male,

and J.M.M., a five-year-old female. S.R.M. is married to

McLaughlin. McLaughlin is not the children's biological father.

After enduring a period of sexual abuse by McLaughlin, J.K.M. and

J.M.M. informed their mother that they were being molested by

McLaughlin.

S.R.M. contacted the police and took steps to keep McLaughlin

from being alone with the children. At trial the children

testified that McLaughlin forced them to engage in a number of

sexual acts with him, including masturbation, oral intercourse,

vaginal and anal intercourse, and that he forced them to engage in

sexual contact with each other. J.K.M. and J.M.M. further

testified that McLaughlin threatened both children with a shotgun,

that he tried to run over J.K.M. with a motorcycle, and that he

threatened to harm members of their family. Additional facts

appear where necessary in the remainder of this opinion.

McLaughlin was charged by information with two counts of

sexual intercourse without consent in violation of § 45-5-503(l),

MCA. McLaughlin was found guilty by jury verdict and filed a

motion for new trial. The motion was denied. McLaughlin was

sentenced to twenty years in prison on each count, to run

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consecutively. McLaughlin received an additional ten-year sentence

for his use of a weapon during commission of a crime. Finally,

McLaughlin was designated a dangerous offender for parole

eligibility purposes.

McLaughlin raises five issues on appeal.

1 . Did the State fail to give McLaughlin Just notice under Rule

404(b), M.R.Evid., for the following sub-issues:

(a) Questioning J.K.M. regarding McLaughlin's

shotgun and threats to kill J.K.M. and his family?

(b) Questioning J.K.M. regarding McLaughlin's

alleged flight from police and attempts to remove/conceal

McLaughlin's shotgun?

(c) Questioning J.K.M. regarding McLaughlin's

confession to him of the murder of another individual and

the reasonableness of J.K.M.' s fear of being killed by

McLaughlin?

(d) Questioning J.K.M. regarding McLaughlin's

attempts to kill him by running over him with a

motorcycle?

(e) Questioning J.M.M. regarding McLaughlin's

threats to kill her?

(f) Questioning Officer Grubb regarding S.R.M.'s

hearsay statement to him that McLaughlin "had a violent

temper?"

(g) Questioning Officer Grubb regarding S.R.M.'s

hearsay statement to the police that McLaughlin "had

previously been in prison?"

(h) Questioning Officer Bellusci and obtaining the

statement that "evidently that gun was one that he had

when he was out to get his ex-wife --?'I

(i) Questioning McLaughlin regarding his alleged

bigamy at the time of his marriage to S.R.M.?

(j) QuestioningMcLaughlinregardinghis suspicions

that the possession of a particular gun may have been

illegal?

2 . Did the State's use of an expert to testify to the

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3 .

4 .

5 .

truthfulness of a child witness violate McLaughlin's right to

confront the witnesses against him?

Did the State violate McLaughlin's right to a fair trial by

making improper comments during closing argument?

Did the District Court violate McLaughlin's right to a fair

trial when it admonished defense counsel not to object during

closing argument "until you have a real serious reason to do

it?"

Did the District Court improperly construe Rule 801(d) (1) (B),

M.R.Evid.?

Issue I

(a) Did the State fail to give McLaughlin Just notice under

Rule 404(b), M.R.Evid., for questioning J.K.M. regarding

McLaughlin's shotgun and threats to kill J.K.M. and his

family?

McLaughlin did not object at trial to the allegations

contained in sub-issue (a). We have held that the failure to raise

an issue before the district court bars a defendant from raising

the issue on appeal under § 46-20-104, MCA. State v. Arlington

(1994), 265 Mont. 127, 151, 875 P.2d 307, 321. Section 46-20-

104(2), MCA, provides:

(2) upon appeal from a judgment, the court may

review the verdict or decision and any alleged error

objected to which involves the merits or necessarily

affects the judgment. Failure to make a timelv obiection

during trial constitutes a waiver of the obiection exceot

as provided in 46-20-701(2). [Emphasis added.]

None of the exceptions in § 46-20-701(Z), MCA, apply to the instant

case. We hold that McLaughlin is barred from raising sub-issue (a)

on appeal and we need not further consider the merits of this subissue.

(b) Did the State fail to give McLaughlin Just notice under

Rule 404(b), M.R.Evid., for questioning J.K.M. regarding

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McLaughlin's alleged flight from police and McLaughlin's

attempts to conceal his shotgun from authorities.

Rule 404(b), M.R.Evid., provides that:

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 action in

conformity therewith. It may, however, be admissible for

other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.

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

the State must provide notice, prior to trial, when it intends to

offer evidence of other crimes, wrongs, or acts at trial.

McLaughlin's objection was based upon a motion in limine which

did not address the question of any shotgun evidence. Further,

McLaughlin has not cited to any pretrial ruling which would have

limited the discussion of shotgun evidence. We hold that the court

did not err in overruling the objection.

(c) Did the State fail to give McLaughlin Just notice under

Rule 404(b), M.R.Evid., for questioning J.K.M. regarding

McLaughlin's confession to him of the murder of another

individual and regarding the reasonableness of J.K.M.'s fear

of being killed by McLaughlin.

In the context of the acts committed by McLaughlin, the

reasonableness of J.K.M.'s fear of being killed by McLaughlin was

not another crime, wrong, or act. Rather, J.K.M.'s fear of being

killed or harmed was closely tied to how McLaughlin was able to

force himself upon J.K.M. and J.M.M. through the use of fear and

intimidation. Therefore, gust notice does not apply.

After asking J.K.M. about his fear of being killed by

McLaughlin, the prosecutor asked J.K.M., "Do you think he is

capable of [killing you]?" J.K.M. responded "Yes" and the

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prosecutor asked "Why?" McLaughlin's counsel objected, claiming

that this question was speculative. The court overruled the

objection and J.K.M. answered suggesting that if McLaughlin ever

got out of jail and saw J.K.M., J.K.M. would be dead. The

prosecutor then asked, "Let me get more specific. Has he ever

claimed to have killed anyone--." The court interrupted and

terminated that line of questioning. The question was never

completed and was never answered. More importantly, McLaughlin did

not properly object to this question on Rule 404(b) or Just notice

grounds. McLaughlin fails to demonstrate that the prosecutor's

unanswered questions in any way impaired his right to a fair trial.

We hold that this was not a reversible error. See Arlinston, 075

P.2d at 321.

(d) D~O4t~~~ State fail to give McLaughlin Just notice under

Rule M.R.Evid., for questioning J.K.M. about

McLaughlin's attempts to kill J.K.M. by running over him with

a motorcycle?

McLaughlin did not object at trial to questioning or testimony

about his attempts to kill J.K.M. by running over him with a

motorcycle. We have held that the failure to raise an issue before

the district court bars a defendant from raising the issue on

appeal under § 46-20-104, MCA. Arlinqton, 875 P.2d at 321. None

of the exceptions in 5 46-20-701(2), MCA, apply to the instant

case. We hold that McLaughlin is barred from raising this issue on

appeal.

(e) Did the State fail to give McLaughlin Just notice under

Rule 404(b), M.R.Evid., for questioning J.M.M. about

McLaughlin's threats to kill her?

McLaughlin did not object at trial to the questioning of

6
J.M.M. regarding his threats to kill her. We have held that the

failure to raise an issue before the district court bars a

defendant from raising the issue on appeal under § 46-20-104, MCA.

Arlinqton, 875 P.2d at 321. None of the exceptions in § 46-20-

701(2), MCA, apply to the instant case. Therefore, McLaughlin is

barred from raising this issue on appeal.

(f) Did the State fail to give McLaughlin Just notice under

Rule 404(b), M.R.Evid., for questioning Officer Grubb about

S.R.M.'s hearsay statement to him that McLaughlin "had a

violent temper."

During the prosecution's redirect examination, the following

statements were made regarding S.R.M. 's returning to the house that

she shared with McLaughlin:

PROSECUTION: And did she indicate that she felt that

would be a problem?

WITNESS: She indicated to me that Reno had a violent

temper.

MCLAUGHLIN'S COUNSEL: Objection, Your Honor, this goes

into 404(b), and no Just notice was filed.

PROSECUTION: The question is, did she indicate to you

there would be a problem if she returned to the home with

the kids; did you write anything about that in your

report?

While the witness' response touched on McLaughlin's violent temper,

the questioning did not attempt to elicit character-type or other

crimes evidence. McLaughlin fails to demonstrate that the

prosecutor's statements in any way impaired his right to a fair

trial. This was not a reversible error. See Arlinston, 875 P.2d

at 321. We hold that this was not a Rule 404(b) or JUSt notice

violation and did not deprive McLaughlin of a fair trial.

(g) Did the State fail to give McLaughlin Just notice under

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Rule 404(b), M.R.Evid., for questioning Officer Grubb about

S.R.M.'s hearsay statement to the police that McLaughlin "had

previously been in prison?"

The State asked Officer Grubb to refer to his report to see if

it indicated whether the children's mother had any concerns about

taking the children back to the residence where McLaughlin resided.

The officer read from the wrong line of the report and gave a non

responsive answer to the effect that McLaughlin had previously been

in prison. The trial. transcript evidences that this was an honest

mistake by the officer and was not an error attributable to the

prosecution. More importantly, this was not an error that supports

a Rule 404(b) or Just notice violation. We note finally that the

judge admonished the jury to disregard the improperly read lines,

thus minimizing any harm to McLaughlin. We hold that the State was

not required to give McLaughlin Just notice under Rule 404(b),

M.R.Evid., for questioning Officer Grubb in an instance wherein he

mistakenly read a statement given to the police that McLaughlin

"had previously been in prison."

(h) Did the State fail to give McLaughlin Just notice under

Rule 404(b), M.R.Evid., for questioning Officer Bellusci and

obtaining the statement that "evidently that gun was one that

he had when he was out to get his ex-wife --I'?

McLaughlin objected that Officer Bellusci's statement that

"evidently that gun was one that he had when he was out to get his

ex-wife . . .lt was ixrelevant and prejudicial. The court granted

the defense's motion to strike the answer. McLaughlin's counsel

did not make a Rule 404(b) or Just notice objection. We have held

that the failure to raise an issue before the district court bars

a defendant from raising the issue on appeal under § 46-20-104,

8
MCA. Arlinqton, 875 P.2d at 321. None of the exceptions in 5 46-

20-701(2), MCA, apply to the instant case. We hold that McLaughlin

is barred from raising this issue on appeal.

(i) Did the State fail to give McLaughlin Just notice under

Rule 404(b), M.R.Evid., for questioning McLaughlin regarding

his alleged bigamy at the time of his marriage to S.R.M.

McLaughlin allegedly did not divorce his first wife before

marrying S.R.M. McLaughlin argues that because bigamy is a crime,

the State was required to give Just notice regarding its questions

about his marital status. We disagree. The State did not raise

the question of bigamy during its case-in-chief. Rather, it raised

the issue in its cross-examination of McLaughlin after he had

testified that he was married to S.R.M.

In a conference with the judge and counsel, away from the

jury, the judge concluded that evidence of bigamy pertained to

McLaughlin‘s credibility and was therefore admissible. We conclude

that the District Court correctly allowed this evidence.

McLaughlin testified that he was married to S.R.M. and that she had

coached the children to make false accusations of sexual abuse

because of a pending divorce which S.R.M. did not want. Having

testified about his marriage/divorce situation with S.R.M.,

McLaughlin opened the door to discussion of the legality of his

marriage in the first instance. We hold that the District Court

did not err in allowing the State to question McLaughlin regarding

his alleged bigamy at the time of his marriage to S.R.M.

(j) Did the State fail to give McLaughlin Just notice under

Rule 404(b), M.R.Evid., for questioning McLaughlin as to

whether he possessed a particular gun that may have been

illegal.

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On direct examination McLaughlin testified that he possessed

a shotgun. Although McLaughlin testified that he possessed a

shotgun, McLaughlin conceded, on cross-examination, that he had not

identified the shotgun as his own. Rather, he testified that the

shotgun was given to him by a friend who was leaving town to work

as a traveling harvester. McLaughlin further testified that he

could not remember his friend's last name and that he referred to

him as "Fat Mike." Finally, McLaughlin testified that, by the time

of trial, he had not been asked to return the shotgun.

On cross-examination the prosecutor asked McLaughlin if he

knew that the shotgun was an illegal length. McLaughlin answered

that "I had my suspicions it was illegal, but I thought it was--"

whereupon his counsel objected. The judge ruled that the answer

went to McLaughlin's credibility. We agree.

Having testified about his possession of the shotgun on direct

examination, McLaughlin opened the door to cross-examination as to

the legality of the shotgun length. We hold that the questions as

to the legality of the shotgun were legitimate cross-examination.

Issue II

Did the State's use of an expert to testify to the

truthfulness of a child witness violate McLaughlin's

right to confront the witnesses against him?

McLaughlin did not object to expert testimony about the

truthfulness of child witnesses. We have held that the failure to

raise an issue before the district court bars a defendant from

10
raising the issue on appeal under § 46-20-104, MCA. Arlinqton, 875

P.2d at 321. None of the exceptions in § 46-20-701(2), MCA, apply

to the instant case. We hold that McLaughlin is barred from

raising this issue on appeal.

Additionally, we note that we are unaware of any Montana

authority prohibiting a qualified expert from testifying about the

credibility of a minor sexual abuse victim who has testified at

trial and whose credibility has been challenged. In State v.

Scheffelman (1991), 250 Mont. 334, 342, 820 P.2d 1293, 1298, we

held that this type of expert testimony is permitted in Montana.

Finally, given the nature of the defense's cross-examination of

J.K.M. and J.M.M., their credibility was sufficiently challenged to

warrant expert testimony about their credibility.

Issue III

Did the State violate McLaughlin's right to a fair trial

when the State referred to McLaughlin as 'I a sick

individual" and "pedophile" in its closing and when it

told the jury that McLaughlin "has inconvenienced all of

us to come here and conduct this trial?"

The relevant comments by the prosecutor are as follows:

PROSECUTION: They want you to think this is a vendetta

of the mother LS.R.M.1 and the defendant. For what?

They weren't even legally married. There was no divorce

here, and no need for one.

. . . .

There is no custody battle here, they are not his kids.

There is no reason for a custody battle, no reason for

any of that.

What's the reason for all of this? The reason is

you have got one sick individual there that likes to

molest children. It's a case of a pedophile.

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THE COURT: Sit down.

MCLAUGHLIN'S ATTORNEY: I must object. . . .

THE COURT: He can state that if he wishes . . . .

McLaughlin argues that we should apply State v. Statczar

(1987), 228 Mont. 446, 743 P.2d 606. McLaughlin urges that

Statczar stands for the proposition that attorneys should not

proclaim personal opinion to a jury as such proclamation invades

the province of the trier of fact.

In Statczar the prosecutor commented that the prosecutor's

office was too busy to prosecute innocent persons. Although we

disapproved of prosecutors expressing personal opinions in

Statczar, we found no evidence of undue prejudice.

We do not here consider whether the comments McLaughlin

challenges were accurate or appropriate. Rather we decide whether

the comments constituted undue prejudice depriving McLaughlin of a

fair trial. We do not condone this type of characterization in

front of a jury. However, considered in light of McLaughlin's

closing argument, which included suggestions that the mother

coached the children to falsely testify against him and that the

mother inappropriately influenced the prosecution, the prosecutor

was arguing that this was a case of psychiatric disorder

(pedophilia) rather than a case of witness coaching. We conclude

that McLaughlin has not shown, and we do not find, that these

comments constituted undue prejudice or denial of a fair trial.

McLaughlin's appeal brief also makes passing reference to the

fact that the prosecutor, during closing, suggested that "they

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inconvenienced all of us to come here, and conduct a trial."

McLaughlin does not cite any authority as to why this would

constitute error nor does he present any argument to the effect

that the comment prejudiced him or denied him a fair trial. A

party asserting error by the district court must present argument,

supported by citation to legal authorities. Rule 23, M.R.App.P.

We note that the comment was made in the context of the State's

characterization (whether accurate or not) of the testimony of

defense witness Kathy Taylor who wrote a statement indicating that

she knew McLaughlin was not guilty. According to the State, Ms.

Taylor gave the statement to McLaughlin's mother. In closing, the

State was pointing out that, if this statement were so important to

the defense, it was incongruous for the defense to have not turned

that information over to the police or to the county attorney,

rather than inconveniencing everyone "to come here and conduct a

trial." When the comment was objected to, the prosecutor, in the

presence of the jury, stated that he was not talking about the

"client," McLaughlin. We conclude that the comment did not

constitute undue prejudice or deny McLaughlin a fair trial.

Issue IV

Did the District Court violate McLaughlin's right to a

fair trial when, after the State commented in its closing

that McLaughlin was a sick individual and pedophile, the

District Court told the defense, "Don't interrupt until

you have a real serious reason to do it?"

After the prosecutor's comments during closing, McLaughlin

objected, stating "I must object to the characterization of my

13
client as a sick individual and pedophile." The judge responded:

He can state that if he wishes. Now don't interrupt on

that, you know he can make those statements. Don't

interrupt until you have a real serious reason to do it.

McLaughlin argues that the court's response demonstrated to

the jury that the court did not consider such slander improper and

that it agreed with the prosection's comments . McLaughlin

concludes that the court's response to the objection impliedly told

the jury to convict McLaughlin and denied McLaughlin an unbiased

judge. We disagree.

McLaughlin presents no law, and we have found none, to suggest

that a judge may not instruct attorneys about their conduct. It

may have been preferable for the judge to have simply overruled the

objection, but because of the wide latitude generally afforded in

closing arguments, the judge's comments were permissible.

Particularly in light of our holding that the prosecutor's comments

which prompted the objection did not deny McLaughlin a fair trial,

we hold that neither did the judge's comments deny McLaughlin a

fair trial.

Issue V

Did the District Court improperly construe Rule

801(d) (1) (B), M.R.Evid.?

McLaughlin argues that testimony presented by police officers

about what J.K.M. and J.M.M. had stated during the police

investigation violated Rule 801(d) (1) (B), M.R.Evid. Although the

State does not raise the issue in its brief, the record indicates

that McLaughlin did not object to the testimony in question as

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containing prior consistent statements in violation of Rule

801(d) (1) (B), M.R.Evid. As we indicated in Issue l(a) above, the

failure to raise an issue before the district court bars a

defendant from raising the issue on appeal under § 46-20-104, MCA.

Affirmed.

Pursuant to Section I, Paragraph 3(c), Montana Supreme Court

1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document

with the Clerk of the Supreme Court and by a report of its result

to Montana Law Week, State Reporter and West Publishing Company.

We concur.

Chief Justice /

15
i

September 8, 1995

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Scott A. Albers

Attorney at Law

Cascade County Courthouse

415 2nd Ave. No., RM 110

Great Falls, MT 59401

Patrick L. Paul

Cascade County Attorney

Cascade County Courthouse

Great Falls MT 59401

Joseph P. Mazurek, Attorney General

, Assistant

Justice Building

215 N. Sanders

Helena MT 59620

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA