NO. 85-443 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsCHARLES W. 'BILL' BIEHLE, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable William J. Speare, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Charles W. Biehle, Pro Se, 

Powell, Wyoming 

For Respondent: 

Marc Racicot, Attorney General, Helena, Montana, 

Barbara C. Harris, Assistant Attorney General, 

Dennis Paxinos, Yellowstone County Attorney, 

Billings, Montana, 

Teresa O'Connor, Deputy County Attorney. 

Submitted on Briefs: October 3, 1991 

Decided: January 16, 1992 

Filed: 

Clerk 
Justice William E. Hunt, Sr., delivered the opinion of the Court. 

Appellant Charles W. Biehle, pro set appeals his one count 

conviction of felony sexual assault following a jury trial in the 

Thirteenth Judicial District Court, Yellowstone County. We affirm. 

Appellant has set forth several issues. Those that are not 

part of the record will not be considered by this Court. The 

following issues will be considered: 

1. Whether appellant was denied effective assistance of 

counsel when defense counsel stipulated to the introduction of 

Exhibits No. 3 and No. 5. 

2. Whether there was sufficient evidence to support 

appellant's conviction. 

3. Whether there was exculpatory medical evidence. 

4. Whether the appellant was placed in double jeopardy after 

having his motion for a new trial granted following his initial 

conviction. 

On November 9, 1983, in response to an anonymous phone call, 

T. K. , a ten year old, was interviewed by a State social worker. 

The victim alleged that she was sexually assaulted by the appellant 

on or about the first or second week of October 1983, and on 

November 5, 1983. She repeated these allegations on video tape to 

a police officer. 

On January 10, 1984, appellant was charged with two counts of 

sexual assault, a felony, for ''massaging her genitals underneath 

her underwear." On June 6, 1984, he was convicted on both counts 
in a jury trial. On August 6, 1984, the District Court granted 

appellant's motion for a new trial based upon prosecutorial 

misconduct. After the motion for new trial was granted, 

appellant's counsel, Christopher P. Thimson, was permitted to 

withdraw, and John L. Adams was appointed. On May 7, 1985, 

appellant was convicted by a jury of Count I and acquitted of Count 

11. He was sentenced to serve 20 years in the Montana State 

Prison, with the final 10 years suspended. On July 16, 1985, a 

timely notice of appeal was filed by appellant's counsel, John L. 

Adams. The appeal was subsequently dismissed for failure to timely 

file a brief. On June 7, 1990, we reinstated the appeal and 

ordered the District Court to appoint counsel. The District Court 

appointed Allen Beck as counsel. On October 25, 1990, Beck filed 

an Anders brief and raised possible arguments for an appeal, as 

required by Anders v. California (1967), 386 U.S. 738, 87 S.Ct 

1396, 18 L.Ed.2d 493. Beck also filed a motion to withdraw as 

counsel, and this Court granted that motion and allowed the 

appellant to proceed with his appeal pro se. On July 8, 1991, 

appellant filed his pro se brief to which the State subsequently 

responded. 

Whether appellant was denied effective assistance of counsel 

when counsel stipulated to the introduction of Exhibits No. 3 

and No. 5. 
This Court uses the two-prong test set out in Strickland v. 

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, in 

evaluating ineffective assistance claims. 

First, counsel's performance must be deficient. To 

assess deficient performance, this Court employs the 

l'lreasonably effective assistance' test of whether a 

defendant's counsel acted within the range of competence 

demanded of attorneys in criminal cases." (Citation 

omitted.) Second, counsel's deficient performance must 

have so prejudiced the defendant as to deprive the 

defendant of a fair trial. [Citation omitted.] The 

standard for evaluating prejudice is whether a reasonable 

probability exists that but for counsel's deficient 

performance, the trial's outcome would have been 

different. 

State v. Coates (1990), 241 Mont. 331, 337, 786 P.2d 1182, 1185. 

We note that appellant's counsel on the initial appeal did 

abandon him which resulted in the dismissal of the appeal. The 

United States Supreme Court recognized that the Fourteenth 

Amendment guarantees the right to counsel on the first direct 

appeal as a right. Penson v. Ohio (1988), 488 U.S. 75, 79, 109 

S.Ct. 346, 349, 102 L.Ed.2d 300, 308. An appellant cannot be 

denied his right to appeal because of the errors of his counsel. 

Pennsylvania v. Finley (1987), 481 U.S. 551, 557, 107 S.Ct. 1990, 

1994, 94 L.Ed.2d 539, 547. This Court has rectified this error by 

reinstating this appeal and ordering the District Court to appoint 

counsel. Thus, appellant has received the appropriate remedy in 

this instance. 

Appellant's main contention focuses on the stipulation of 

Exhibits No. 3 and No. 5. Exhibit No. 3 was a brown manila 
envelope containing an unsigned handwritten letter marked at trial 

as Exhibit No. 5 that was placed in the mail box of Shirley 

Kaufman, T.K.Is mother. The content of the letter included 

appellant's admissions of making a mistake and needing to seek help 

for his problems. Appellant claimed that defense counsel 

stipulated to the admission of the exhibit without his permission. 

The record indicated that counsel believed that appellant 

agreed to the stipulation of the exhibits, and it appeared that it 

was a matter of trial tactics. This Court, in evaluating a defense 

counsel's performance, will not second guess trial tactics. 

Coates, 786 P.2d at 1185. 

The record shows that defense counsel's performance was 

competent. Through the efforts of his attorney, the appellant was 

acquitted of one of the charges against him. Other evidence of 

similar acts of sexual assault was suppressed. We hold that 

appellant was adequately assisted in the conduct of the 

proceedings. 

I1 

Whether there was sufficient evidence to support appellant's 

conviction. 

We have stated previously that in sex offense cases the 

victim's testimony need not be corroborated. State v. Gilpin 

(1988), 232 Mont. 56, 70, 756 P.2d 445, 453. The rule applies to 

child victims of sexual abuse as well. Gilpin, 756 P.2d at 453. 

The victim testified that the sexual contact of November 1983 was 
committed by the appellant. This testimony is sufficient evidence 

to sustain a jury's guilty verdict. 

Whether there was exculpatory medical evidence. 

Appellant alleged that there was a medical examination of the 

victim that proved her hymen was still intact and that this 

evidence refuted the victim's claim of penetration. Nothing in the 

record indicated that appellant requested this information or that 

the medical examination even occurred. Assuming that such record 

existed and that the medical information was not exculpatory or 

necessary for the preparation of the defense, this Court has stated 

that defense counsel's right to review medical and psychological 

evidence of the victim is outweighed by the victim's right to 

confidentiality. State v. Donnelly (1990), 244 Mont. 371, 376-77, 

798 P.2d 89, 92 (overruled on other grounds in State v. Imlay 

(Mont. 1991), 813 P.2d 985, 48 St.Rep. 588.) 

The appellant's argument is without merit under Montana law. 

The statutory definition of sexual contact states the following: 

"Sexual contact" means any 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. 

Section 45-2-101(60), MCA. 

The policy underlying our sexual assault statute is to 

If 'criminalize and punish sexual or intimate impositions that do not 

involve penetration . . . . State v. Kestner (1988), 220 Mont. 
41, 46, 713 P.2d 537, 540, (quoting State v. Weese (1980), 189 

Mont. 464, 467, 616 P.2d 371, 373.) It is not necessary for the 

victim's hymen to be broken, as the appellant alleged, to 

constitute sexual contact. We hold the appellant's contention to 

be without merit. 

Whether the appellant was placed in double jeopardy after 

having his motion of a new trial granted following his initial 

conviction. 

It has long been the rule that double jeopardy does not attach 

after the trial court grants a new trail. State v. Thompson 

(1891), 10 Mont. 549, 563, 27 P. 349, 352. In this case, a new 

trial was granted at the request of appellant because of 

prosecutorial misconduct in closing argument. We hold that double 

jeopardy does not attach in this instance. 

1 

Justice 

,