No. 90-069 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsRONALD F. TIMBLIN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Billy B. Miller argued, Miller & Cook, Great Falls, 

Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Carol E. Schmidt argued, Assistant Attorney 

General, Helena, Montana 

Patrick L. Paul, County Attorney, Great Falls, 

,b ,.'-..- Montana *-. 

submitted: June 11, 1992 

Decided: July 13, 1992 

'Clerk 
Justice R. C. McDonough delivered the opinion of the Court. 

Ronald Timblin appeals from a judgment of the Eighth Judicial 

District Court, Cascade County entered after a bench trial. We 

reverse. 

The sole issue to consider on this appeal is: whether the 

District Court erred in denying a continuance thereby denying 

Timblinls Sixth Amendment right to compulsory process, and his 

Fifth Amendment rights to due process and a fair trial. These 

rights are applicable to the states by reason of the Fourteenth 

Amendment to the United States Constitution. 

During the spring of 1987, Timblinls wife filed for a divorce 

and Timblin moved out of the family home. On approximately August 

22, 1987, Timblin picked up P.T., C.T. and K.T. (his three 

daughters) for a scheduled visitation. At the time, P.T. was 14 

years old. P.T. later reported that Timblin forcibly raped her 

during the visit. She initially told no one about this incident. 

Two years later, in 1989, P.T. confided in her boyfriend Matthew 

and revealed a history of sexual abuse by her father. After 

consideration, on the following day, Matthew told P.T.Is mother 

about the abuse. On April 24, 1989 P.T. Is mother contacted the 

Great Falls Police Department. After an investigation, Timblin was 

charged with sexual intercourse without consent. 

P.T. told the investigating officer that on the day of the 

incident at Timblinls apartment, he called her into the bathroom to 

talk about C.T.Is birthday present. She stated that Timblin told 

C.T. and K.T., her younger sisters, to stay in the living room and 
watch television. P.T. reported that after the alleged rape 

occurred Timblin left the bathroom first. She remained in the 

bathroom to clean up and put cold water on her face. Later, at 

the request of the County Attorney, the investigating officer 

interviewed P.T.'s sisters, C.T. and K.T. Both C.T. and K.T. 

reported that Timblin called P.T. into the bedroom to talk about 

C. T. I s birthday present. They stated that P. T. and Timblin were in 

the bedroom about two minutes, and that P.T. came out of the 

bedroom first. Both girls stated they were in the living room 

watching TV at the time of the alleged rape. C.T. stated she saw 

P.T. and Timblin go into the bedroom but not the bathroom. 

Prior to trial, the State issued subpoenas to both C.T. and 

K.T. Apparently, the State released the subpoenas one or two days 

prior to the trial. At the trial, P.T.'s story changed somewhat. 

Counsel for the defendant then had subpoenas issued for C.T. and 

K.T. but was unable to serve them. Filed affidavits made by the 

process server and a private investigator showed that the girls 

were hidden by their maternal grandmother, and/or mother thus 

preventing service. 

The statements taken by the investigating officer had revealed 

some inconsistencies between the girls1 stories, and the story of 

the victim. However, it was not revealed to the defense until 

trial that P.T.Is initial story had changed. Prior to P.T.Is incourt testimony, Timblin was unaware that P.T. had made more than 

one statement to the investigating officer. The State did not 

notify Timblin about the change in P.T. Is testimony. P.T. 
testified at trial that her father first called her into the 

bedroom, then they went into the bathroom. P.T. stated that 

Timblin told the younger girls to take out the garbage. P.T. 

further testified that the girls stayed outside and played. This 

was not the version told by C.T. and K.T. 

P.T.ls original and only typed statement was different than 

her trial testimony; the detective knew about her change in 

testimony prior to trial. The defendant was unaware of the change 

in the story until the trial. 

During the trial, after the process server was unsuccessful in 

serving the subpoenas, Timblin made a motion to compel the State to 

produce C.T. and K.T., and a motion to continue the trial until the 

witnesses could be subpoenaed. The District Court denied Timblinls 

motions. Timblin was found guilty by the court and sentenced to 35 

years in the Montana State Prison, with five years suspended and 

without credit for time served. This appeal followed. 

Our standard of review is to determine whether the trial court 

abused its discretion in denying the motion for a continuance. 

Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 803 P.2d 

601. 

On the second day of the two day bench trial, the District 

Court denied Timblinls motion to continue until Timblin could 

locate and serve subpoenas on C.T. and K.T. The District Court, 

for purposes of the record, stated that its calendar was full. It 

further stated that Timblin should have subpoenaed C.T. and K.T. 

prior to trial. We agree with the District Court that a criminal 
defendant must plead and prove his or her own case, thus calling 

witnesses in his or her own defense. See Ferrari v. United States 

(9th Cir. 1957), 244 F.2d 132, 142, cert. denied sub nom Cherpakov 

v. United States (1957), 355 U.S. 873. In this instance, due to 

the lack of notice of changed testimony, a continuance would have 

been proper. 

Timblin argues that under Schwartzmiller v. State (Idaho App. 

1985), 699 P.2d 429, and Singleton v. Lefkowitz (2nd Cir. 1978), 

583 F.2d 618, he was denied his rights to compulsory process, due 

process, and a fair trial. Schwartzmiller set forth three criteria 

in determining whether compulsory process has been denied: 

1. The nature and extent the government conduct 

contributed to the unavailability of the witness; 

2. The importance of the evidence to the 

defendant's case; and 

3. The defendant's diligence in exercising his 

Sixth Amendment rights. 

Schwartzmiller at 430-431. 

As Schwartzmiller pointed out, each inquiry is important, but 

all three need not be satisfied. Schwartzmiller at 431. In the 

case before us, after the change of testimony on the part of P.T., 

the importance of the younger girls1 testimony increased 

significantly. Timblin diligently had subpoenas issued for C.T. 

and K.T., hired an investigator to help locate them, and made the 

proper motions in order to accomplish service. 

In Sinaleton the Second Circuit held that the defendant was 

denied his right to compulsory process when the trial court refused 

an adjournment to secure the presence of a witness. The court 

stated that denial of a defendantls right to present a defense 
deprives the defendant the right to a fair trial. Sinuleton at 

625. Additionally, due process guarantees that a criminal 

defendant will be treated with the fundamental fairness essential 

to the very concept of justice. Schwartzmiller at 430. (citations 

omitted) 

We conclude that the District Court abused its discretion in 

denying Timblinls motion for continuance. A reasonable continuance 

would have satisfied Timblinls constitutional rights. The presence 

of the two girls at trial would have allowed Timblin to test the 

credibility of the victim. The change in P.T.'s testimony goes to 

her credibility. The credibility of a witness is of utmost 

importance between a sexual abuse victim and a denying defendant. 

It is often the only defense available. 

For the reasons stated above, we remand to the District Court 

for a new trial. 

We Concur: 

Chief Justice 

@~~fleJustice / 
Chief Justice J. A. Turnage, dissenting: 

I respectfully dissent. 

The majority opinion of the Court reverses the bench trial 

conviction of the defendant of sexual intercourse without consent 

committed upon the person of his then fourteen-year-old natural 

daughter, P.T., and orders a new trial for defendant. 

The sole basis for the majorityls decision to reverse the 

conviction is the conclusion that the trial judge abused his 

discretion in refusing counsel's motion for a continuance made 

during the trial for the purpose of allowing defendant to subpoena 

his two other natural daughters, C.T. and K.T. At the time of the 

offense, C. T. and K.T. were nine and ten years of age respectively. 

They were approximately ages eleven and twelve at the time of 

trial. 

From the date of filing of the information on June 6, 1989, 

defendant was aware that C.T. and K.T. were the potential witnesses 

referred to in the information and potentially witnesses to be 

called at the trial. C.T. and K.T. had been subpoenaed by the 

State but were not called to testify and had been released from 

subpoena prior to trial. 

Defendant had the opportunity prior to trial to depose C.T. 

and K.T. Defendantls counsel did notice a deposition of C.T., and 

thereafter her deposition was taken on October 16, 1989, with 

defendant's counsel present along with the deputy county attorney. 
The defendant, having knowledge of these potential witnesses, chose 

not to subpoena them for testimony on his behalf. 

The State is under no obligation to call all of the witnesses 

that it subpoenaed. It is the duty of the defendant and his 

counsel to subpoena their own witnesses and prepare for the 

defendant's case. The defense is not entitled to rely upon the 

witnesses subpoenaed by the State. 

Defendant's counsel's request for a continuance for the 

purpose of subpoenaing C. T. and K. T. , mid-trial, was based on an 

inconsistency in the testimony of P.T. as to whether the offense 

was committed in a bathroom or a bedroom in defendant's residence, 

and whether C.T. and K.T. were in the residence all the time or 

whether they were outside part of the time during the commission of 

the offense. 

In my view, any direct or cross-examination of C.T. or K.T. 

would have been cumulative and not probative to a degree that would 

have created reasonable doubt or altered the decision of the court. 

In bench trials, the trial judge should be more willing to 

consider a reasonable request for continuance. The delay would 

not, in all probability, be as inconvenient as it may be in a jury 

trial. In this case, however, the trial judge did not abuse his 

discretion in denying the continuance. 

The overwhelming testimony submitted by the State in proof of 

the defendant's guilt, which is plain from the totality of the 
record, leaves no room for a reversible error in the denial of the 

motion for continuance. At most, it was a harmless error, and I do 

not concede that it was error in any event. 

The totality of this record, when carefully reviewed, 

establishes from the testimony of the victim, P.T., that defendant 

had committed sexual assaults upon her commencing from the time she 

was approximately five years of age and continuing over several 

years. The sexual assaults commenced with sexual fondling and 

escalated to acts of sexual intercourse, including oral intercourse. These acts occurred with an astounding frequency, ending 

on or about August 23, 1987, with the act on which defendant stands 

convicted. 

The State made an appropriate motion under Rule 404(b), 

M.R.Evid., to introduce prior acts of the defendant and, after 

briefing and argument, the Court granted the State's motion. The 

prior acts were testified to in much detail by the victim, P.T. 

That testimony included the fact that the defendant had signed a 

deferred prosecution agreement on November 20, 1987, wherein he 

admitted that approximately three years prior to that date, he had 

committed the offense of sexual assault upon the victim in this 

case, his daughter P.T. Pursuant to the agreement, his prosecution 

for that offense was deferred for two years. The agreement was 

entered into evidence without objection as State's Exhibit 1. 
Direct or cross-examination of C.T. and K.T. concerning an 

event that occurred when they were nine and ten years of age, over 

two years prior to trial, relating to whether or not they were 

present in the residence and whether the victim and the defendant 

were in the bedroom or the bathroom during the commission of the 

offense, simply does not rise to a probative value that warrants a 

reversal of this conviction. 

I would affirm.