No. 83-442 INTHE SUPREMECOURTOF THE STATE OF MONTANA 1384

STATEOF MONTANA, Plaintiff and Respondent,

-VSROGER L. ANDERSON, Defendant andAppellant.

APPEAL FROM: DistrictCourt of the First Judicial District, In and for the County of Lewis & Clark, TheHonorable Gordon R. Bennett,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Jackson Law Firm;GregoryJackson argued,Helena, I4ontana

For Respondent: Hon. Mike Greely,Attorney General,Helena,Montana Clay R. Smith argued,Asst. Atty. General,Helena MikeMcGrath argued,CountyAttorney, Helena,Montana

Submitted: April 20, 1984 Decided: July 16,1984

Filed: 

### JUC i

.

## '1984

ClerkMr. Justice L. C. Gulbrandson delivered the Opinion of the Court.

Defendant Roger Anderson appeals from his conviction in the District Court of theFirstJudicial District, Lewis and Clark County, on three counts of sexual assault. We affirm. On March 22, 1983, Roger Anderson was charged by information with three sexual offenses: sexual intercourse without consent, attempted sexual intercourse without consent and sexual assault. The first two charges were subsequentlyamended tosexual assault. Allof the charges involve three minor children: M., the defendant's step-daughter, age tenatthetimeof trial; R. F., a friend of M., age thirteen at time of trial; and L. M., another friendof M., agenine atthetimeof trial. R. F. and L. M. testified during the State's case-in-chief concerning sexual assaults by the defendant. M., who made statements to authorities incriminating the defendant, changed her story prior to trial and testified during the defendant's case-in-chief, denying that sexual assaultshad been committed by defendanton her or theother victims. However, the Stateproduced testimony to confirm allof the charges of sexual assault. The jury also heard expert testimony on the subject of sexual offenders and child sexcrime. The jury returned a guilty verdict on all three counts. Defendant subsequently moved for a new trial, but the motion was denied. The court eventually sentenced defendant to three twenty-year concurrent sentences atthe Montana State Prison, suspended fifteen years of eachsentence, and designated defendant as nondangerous for purposes of parole eligibility. From his conviction and denialof hismotion foranew trial, defendant appeals. The following issuesarepresented on appeal: (1)Whether the District Court erred in tendering a copy of the defendant's trial brief to the State prior to trial and, if so, whether any substantial right of the defendantwasprejudiced? (2)Whether theDistrict Court erred ingranting the State's motion in limine to exclude evidence concerning a prior sexual assault allegation by prosecution witness R. F. againstan individual other than thedefendant? (3)Whether the District Court abused its discretion by excluding evidence of the State's amendments to the original information, although it took judicial notice of the same? (4) Whether the District Court erred in permitting testimony by a prosecution witness concerning prior statementsby a complainingwitness? (5)Whether the District Court erred in refusing to permit defendant's request toexamine a particular witness

asahostileor adversewitness? (6) Whether the Distict Court erred by admitting rebuttal testimony concerning "prior wrongful acts" by the defendant? (7) Whether the District Court erred in denying defendant's motion for a new trial on grounds of alleged jury misconduct and insufficient credible evidence to convict thedefendant? (8)Whether the District Court erred in refusing togive the Smith jury instruction, which provides that allegations of sexual crimes are "easilymade but difficult torefute?"

WHETHER THE DISTRICT COURT ERRED IN TENDERINGA COPY OF THE DEFENDANT'S TRIAL BRIEF TOTHE STATE PRIORTOTRIALAND, IF SO, WHETHER ANY S U B S T A N T I A L R I G H T OF 

### ------------------- THE DEFENDANT WAS PREJUDICED? Defendant's trialbrief, presented to thejudge a few daysbefore trial, outlinesfour arguments or theoriestobe advanced by defense counsel: (1) the introduction of testimony to establish defendant's "good character;" (2) evidenceof wrongfulmotives on thepartof R. F. totestify against the defendant, to wit: that she was attempting to "getback" atdefendant, a police officer, for apprehending her for criminal activity on at least two occasions, and reporting another incident of her wrongful conduct to sheriffs' deputies; (3) introduction of evidence of the State's amendments to the original information to show the "instability" of prosecution witness testimony; and (4) introduction of evidence of a previous sexual crime charge made by R. F. against another man, a charge subsequently dismissed, to again establish wrongful motives by R. P. in complaining againstdefendant. Upon receipt of thebrief, thetrialjudge tendered a copy tothecountyattorney. Defensecounsel learned thata copy had been delivered when the county attorney called him to obtain further information about statements made in the brief. Prior to the start of trial, defendant moved to dismiss the charges, arguing that release of the brief hadunfairly permitted the State to rehabilitate its witnesses and revise its voir dire, cross-examination and rebuttal strategies. The court responded that defendant was never ordered to produce the trialbrief, and that it had tendered

a copy of the brief only to expedite the trial. Themotion to dismiss charges was denied. On appeal, defendant renews his initial arguments supporting dismissal of the charges,arguing that releaseof

a copy of the brief to opposing counsel was inviolation of the constitutional guarantee against self-incrimination and local court rules and customs pertaining to trialbriefs. The protections of the Fifth Amendment to the United States Constitution, made available to criminal defendants in state proceedings through the due process component of the Fourteenth Amendment, pertain only to compelled self-incrimination. Lefkowitz v. Cunningham (1977), 431 U.S. 801, 804-5, 97 S.Ct. 2132, 2135, 53 L.Ed.2d 1, 6; Malloy v. Hogan (1964), 378 U.S. 1, 8, 84 S.Ct. 1489, 1493-94, 12L.Ed.2d 653,659-60. Assuming, for the purpose of argument, that the contents of defendant's brief even raised the prospect of self-incrimination, defendant was under no compulsion to produce the information or arguments summarized in the trialbrief. Furthermore, nothing in the First Judicial District Court rule or custom on trial briefs affords defendant the kind of confidentiality soughtafter respecting the contents of hisbrief. The rule or custom requires only that abrief set forth counsel's theory of the case and the issues involved plus supporting authorities. Neither party need disclose in detail the nature of evidence to be offered. Abrief need not be served on opposing counsel, but rule or custom does not prevent the District Court, in the exercise of its discretion, from forwarding a copy of the the trial brief of one party to another after the brief is filed with the court. Whether there exists any set of circumstances under which tender of a trial brief to an opposing party would be impermissible, other than the threat of compelled self-incrimination, is irrelevant here. The subject matter of defendant's trial brief was to be freely offered and elaborated upon at trial. Thus, defendant effectively waived any privileges which may have been involved with respect to the contents of the brief. 

### - Cf. State v. Hardy (1977), 293 N.C. 105, 235 N.E.2d 821, 841, (work product privilege waived when defendant or state seeks at trial to make testimonial use of the work product). Moreover, defendant suffered no substantial prejudice from disclosure of the brief. Prosecuting attorneys presumably would have moved in limine to exclude evidence of the amendments to the information and R. F.'s allegation of previous sexual assault even if they had not received the brief in advance of trial. The disclosure that defendant intended to adduce testimony about his "good character" and R. F.Is allegedly wrongful motives is likely innocuous, as there is no reasonable possibility that the trial court's tender of a copy of the brief might have contributed to the conviction. The most that can be said of the court's action is that it fairly facilitated the trial process by avoiding disruption of testimonial flow.WHETHER THE DISTRICT COURT ERRED INGRANTING THE STATE'S 

### - MOTION INLIMINE TO EXCLUDE EVIDENCE CONCERNING A PRIOR 

### ------ SEXUAL ASSAULT ALLEGATION BY PROSECUTION WITNESS R. F. 

### - 

### ------------------- AGAINST AN INDIVIDUAL OTHER THAN THE DEFENDANT? Defendant wished toproduce evidence of a previously dismissed sexual assault charge involving R. F. as the complaining witness todemonstrate that she had a vengeful motive in bringing a similar charge against defendant. Prior to trial, theStatemoved toexcludethisevidenceand the court conducted a hearing to consider the State's motion. The previous case, State v. Everitt Bratcher, concerned a charge that Bratcher had sexually assaulted R. F. on several occasions over the four-year period prior to 1980. The case was dismissed on motion of the prosecuting attorney in January, 1980. According to defendant Anderson's counsel, the charge against Bratcher was untrue, and counsel offered to produce Bratcher's attorney as a witness to support the claim that the charge was false. Bratcher's attorneywould not only testify that his client had adamently denied thecharge, butthat itwas hisbelief that the charge was motivated only by R. F.'s desire to obtain revenge for having been denied accesstoa playarea by Bratcher. Defendant Anderson's counsel argued that independent medical testimony tobe heard in the immediate

casewould atleastconfirm thatR. F. had never experienced sexual intercourse. In summary, counsel maintained that cross-examination of R. F. on the history of the prior charge was justified as a test of R. F.'s credibility, and that there would be no attempt made toprobe into R. F.'sgeneralmoral character. The State sought to exclude introduction of this evidence on the grounds that the previous charge had been dismissed because R. F.'s mother did not want her daughter to experience the rigors of trial, 

### - not because the allegations against Bratcher were false. The prosecuting attorney responsible for the Bratcher case testified under oath that the only basis for dismissing the charges was because of R. F.'s mother's "vehement request," and that therewas no doubt in hismind regarding thetruthfulnessof R. F.'s allegations against Bratcher. One of the prosecuting attorneys intheinstantcase informed thecourt that the social worker involved with R. F. in the Bratcher

casehad urged the familytodropthecharges, because R.F. had essentially forgotten the alleged assaults, and because the experience of trialcould have been bad forher. Asto the matter of whether R.F. had suffered penetration, the State indicated that Bratcher had been charged with sexual assault, regardless of statementsmade by R. F. that could be construed as evidence that she may have experienced intercourse. The trialjudge granted the State'smotion inlimine, concluding thatthedefendant's "evidence" wasmoreunfairly prejudicial than probative. The judge's explanation for thatruling is instructive: "Here we have [defendant's proposed] evidence that clearly will smear the witness of the State of being nothing less than a sexual libertarian, always getting in trouble, committing other offenses, being seduced from time to time, and so on. It'spresented, as noted byr witness' credibility, but, infact, it puts the complaining witness

# . .

# .on 

### ------------trialfor sexualdeviation. When you 

### ------------- balance thatasainstwhatcan beproven bvthefact thatshebrouaht a charaeand thendropped it, isplacing a burienon theStatethattheStateshould nothave tobear, and I think itdefeats thebasic end thatwe're tryingtoreach here, and that isdiscover the truthabout this 

### ------------ Darticular com~laint 

# . .. TTlhe fact thatunder thecircumstancesdescribedby [theprosecutor intheBratcher case],

~. thatthiscase was drow~ed isnoteven very good evidence against her



### .................... 

### --------- credibility, but it's overwhelming 

### ---------- ....................... evidence againsther character and would tend tomake this a trialof the



### ................................ complainingwitness." Tr. at 25-26 (emphasisadded). On appeal, defendant argues that the evidence should have been admitted. Defendant recognizes that the only Montana case on the subject, State v. McSloy (1953), 127 Mont. 265, 261 P.2d 663, holds that evidence of similar sexual offenses claimed to have been committed is inadmissible. Nevertheless, he contends thatMcSloy isbad law, out-of-step with the Montana Rules of Evidence, and contrarytoa lineof casesbeginingwithPeoplev. Hurlburt (1959), 166Cal.App.2d 334, 333 P.2d 82, holding that such evidence is admissible. Rule 608(b),Mont.R.Evid., prohibits use of extrinsic evidence of specific instances of a witness' conduct to attack his or her credibility, except that the same instancesmay be inquired into on cross-examination of the witness, inthe discretion of the court, if the evidence is probative of the witness' penchant for truthfulness or untruthfulness. See Rule 608(b)(l). The McSloy rule admittedlycutsoff even thelimited inquirycontemplated by the above-cited exception to Rule 608(b). Hurlburt, however, ismore in linewith thecurrentrulesof evidence. As the California court emphasized, evidence of prior falseaccusations of the same sexual crime involved in a more current case, while not admissible for the purpose of impeaching the general character or reputation of the witness, may be admissible if probative of the witness1 stateof mind, motive, or biaseswith respect tomaking the

more currentaccusations. Hurlburt, 166Cal.App.2d 334, 333 P.2d at 87. The principle expressed in Hurlburt-that evidence of prior false charges may often be probative of the complaining witness' specific reputation for untruthfulness-is approved by mostjurisdictions. Seee.g., Peoplev. Simbolo (1975), 188Colo. 49, 532 P.2d 962; People

v. McClure (1976),42 Ill.App.3d 952, 356 N.E.2d 899; Little

v. State (1nd.App. 1980), 413 N.E.2d 639; Woods v. State (Okla. Crim. App. 1983), 657 P.2d 180; Statev. Nab (1966), 245 Or. 454, 421 P.2d 388; State v. Izzi (1975), 115 R.I. 487, 348A.2d 371. Incasesinvolving sexual intercoursewithout consent, the legislature has determined that evidence of a victim's sexual conduct is inadmissible in all but very limited circumstances. See Section 45-5-503(5), MCA. This statutory prohibition reflects a compelling interest in favor of "preserv[ing] the integrityof the trial and

# .

# .. preventling] it frombecoming a trialof thevictim." State

v. Higley (Mont. 1980), 621 P.2d 1043, 1050-51, 37 St.Rep. 1942, 1948. Although there are no specific statutory limitations on the use of evidence of a victim's sexual conduct in sexual assault cases, McSloy, Rule 608(b), and evidentiary rules governing relevance, Rule 401, Mont.R.Evid. and prejudice and confusion of issues, Rule 403, Mont.R.Evid., generally act as a barrier againstintroduction of such evidence. Despite the general policy against sordid probes into a victim's past sexual conduct,

we conclude that the policy is not violated or circumvented if the offered evidence can be narrowed to the issue of the complaining witness' veracity. Hall v. State (1978), 176 Ind.App. 59, 374 N.E.2d 62. Indeed, limiting or barring a defendant's cross-examination of a complaining witness in a sex crime case where there is evidence of prior false accusations restricts defendant's enjoyment of the worth of his constitutional right to confrontwitnesses. See Hughes

v. Raines (9thCir. 1981), 641F.2d 790, 792 (habeas corpus action challenging restrictions on defendant's cross-examination of complaining witness in attempted rape prosecution). Our inquiry in the immediate case is directed to whether the trial court properly restricted mention of the offered evidence of the prior sexual assault charges. We emphasize that Hurlburt and related cases hold only that evidence of similar sexual offenses claimed to have been committed against the victim by other individuals is admissible if the offenses were proven or admitted to be false. Hurlburt, supra, 166Cal.App.2d 334, 333 P.2d at 87; People v. Johnson (Cal. Ct. App. 1967), 64 Cal. Rptr. 875, 881, vacated on othergrounds (1968), 68 Cal.2d 646, 441 P.2d 111, 68 Cal.Rptr. 599, cert. den. (1969), 393 U.S. 1051, 89 S.Ct. 679, 21 L.Ed.2d 693; Little, supra (prior allegations must be "demonstrably false"); Nab, supra. If the charges are true or reasonably true, then evidence of the charges is inadmissible, mainly because of its prejudicial effect, seeLittle, supra,but certainly becauseof its irrelevance to the instant proceeding. Little, supra; Nab, supra. Furthermore, evidence of prior charges 

## - which have not been adjudicated to be true or false; i.e., which may be true or false is also inadmissible, primarily 

### - because its introduction circumvents the interest in preserving the integrity of the trial and preventing it from becoming a trial of the victim. See Little, supra (reception of evidence which may be true or false allows circumvention of laws designed to protect legitimate interests of victim). These limitations do not infringe upon a defendant's right to confrontation. See Hughes, supra,641F.2d at 792-93. In order to establish whether there is sufficient support for the contention that the prior allegations are false,a separate hearing outside the jury's presence should be held. Peoplev. Sheperd (Colo.App. 1976), 551 P.2d 210, 212. See also Woods, supra, 657 P.2d at 182. Such a hearing was held in this case, and we conclude that, in reviewing the arguments and offers of proof presented, the court's decision to grant the state's motion in limine was justified. There was no competent evidence that the charges brought against Bratcher on the basis 

### of R. F.'s complaint

were fa.lse. That the charges were dismissed does not by itself establish their falsity, especially in view of the prosecuting attorney's testimony that the charges were dismissed only because R. F.'s mother did not want her daughter to experience the trial, and because of the offer of proof concerning the social worker's belief that the charges were true, based on her discussions with R. F.Evidence of prior chargeshasbeen barred inthose instances where the charges have been dropped due toan inabilityto locate the victim, State v. Demos (1980), 94 Wash.2d 733, 619 P.2d 968, or due toa belief thattherewas insufficient evidence toprosecute, Johnson, supra, because the evidence is not probative of truth or falsity. The same is true of the instant case. The charges were never tested for truth

or falsityand were stilldisputed atthetimeof trial. Defense counsel's offersof proof are alsoirrelevant. The fact that Bratcher's attorney would testify that Bratcher had denied the charges is inadmissible, whether on grounds that a mere denial does not establish falsity, Johnson, supra, or because the attorney's testimony would have been inadmissible hearsay. See Rules 801(c) and 802 Mont.R.Evid. and Peoplev. Mandel (1978),61A.D.2d 563, 403 N.Y.S.2d 63, 68, rev'd onothergrounds (1979), 48 N.Y.2d 952, 401N.E.2d 185, 425N.Y.S.2d 63, cert. den. (1980),446 U.S. 949, 100 S.Ct. 2913, 64 L.Ed.2d 805. Similarly, the existenceof medical testimony inthe instantcase thatR.F. had never experienced intercoursedoesnotprove the falsity of theprior charges. Bratcher had been charged with sexual assault, not sexual intercoursewithout consent, and R. F.'s equivocal statements about what she had experienced are not probative of the truth or falsity of the charge against i3ratcher. In short, the offered evidence would not have been probative of R. F.'s inclination for truthfulness or untruthfulness, as maintained by defendant, hut certainly would have placed a prejudicial stamp on her general character and reputation. The trial court concludedcorrectly that this irrelevant, prejudicial evidence would have shifted the focus of trial away from its central purpose and thus had to be barred. Neverthless, the court later permitted a reference that R. F. had been a victim of another sexual assault. This evidence, which came about through the testimony of social worker Mary Peterson, was permitted for the limited purpose of showing to the jury that R. F. could have had a basis for fantasizing the incidents involving defendant Anderson. That ruling followed testimony by Dr. Elizabeth Gunderson, a petiatrician and defense witness, who testified previously that a child like R. F., having experienced other sexual assaults, could have a basis for fantasizing future sexual assaults. Also, during closing arguments, defense counsel reminded the jury aboutR. F.'s previous assault and implied that she had fantasized the subsequent assault. Thus, defendant did have the opportunity to challenge R. F.'s veracity within the confines of the court's concern that the trial of defendant not become a trial of the complaining witness. This limited inquiry was proper in light of Gunderson's testimony. In summary,wemodify our holding inMcSloy to conform to theprinciples expressed inHurlburt and implicit inRule 608(b). Applying this modified standard to the factsof the immediate case, we conclude that the trial court did not commiterror in its rulings on the admissibility of evidence concerning theBratcher incident.

WHETHER THE DISTRICT COURT ABUSED ITS DISCRETION BY



### ...................................................EXCLUDING EVIDENCE OF THE STATE'SAMENDMENTS TOTHE ORIGINAL INFORMATION, ALTHOUGH ITTOOK JUDICIALNOTICE OF THE SAME? The Stateamended its original information twice,both times reducing charges of sexual intercourse or attempted sexual intercourse to sexual assault. Defendant contended that the amendments reflected changing stories by the victims, and sought to admit evidence of the amendments for thepurpose of attacking the credibilityof Statewitnesses. The county attorneymoved in limine to exclude the evidence of the amendments, and supported his motion with the following argument. "[Als a basic trial tactic I made a decision to amend the charges in this case on two separate occasions. I will admit that we made a mistake in our office in reading the police reports initially regarding the question of sexual intercourse. I think we could have proven sexual intercourse without consent from statements made regarding oral sex. Imade a determination that I did not want todo that. 

### Idon't want to make an argument to the jury that oral sex can amount to rape. There was also some misunderstanding as

# . . .towhether or not there was sexual intercourse or not as has been alluded to earlier; therefore, I made a decision. 

### - The victims did not make adecision. I made adecision to amend the charges to reduce to sexual assault as a trial tactic:



### ......................... Again, [defense]counsel will have the opportunity to cross-examine all of our witnesses on anyprior inconsistent 

### ------------------- statements the~ mav ormav nothavemade. He will have an opportunity to



### .............................. cross-examine the officer that



### .............................. investigated this case regardine 

### ---------------- 

### --------------.- statements made in his re~ort reaardina whether therewas sexual intercourse or not; therefore, counsel will havemore thanam~le o~nortunitvto deal with the

&

# .. issuesinvolved,and

# <would ask that the jurynotbe informed to the fact that for trial. tactic reasons this case has been amended." Tr. at 27-28 (emphasisadded). After hearing arguments by defense counsel, the courtgranted the state's motion, although it indicated that it would take judicial notice of the amendments. Defendant reasons that, once the amendments were judicially noticed, any evidence behind their having been made should have been placed before the jury for consideration. As a general proposition, defendant's argument ismeritless. The trial court took notice of the amendments only for the purpose of ruling on the motion in limine,not for future evidentiary considerations. Judicial notice is always confined to those matters which are relevant to the issues at hand. See, e.g., Gbur v. Cohen (1979), 93 Cal.App.3rd 296, 301, 155 Ca1.Rptr. 507, 510. The trial court made it clear that judicial notice of the amendments was not intended to place evidence of their existence before the jury. The court's ruling was ultimately predicated on its belief that, under Rule 401, Mont.R.Evid., evidence of the amendments was not probative of the veracity of prosecution witnesses. It must be emphasized thatdefense counselwas given the opportunity to cross-examine the complaining witnesses during trial concerning their veracity. And, during closing arguments, defense counsel pointed out what he maintained were inconsistencies in witness testimony. We find no error in the trial court's decision to grant the motion in limine concerning the amendments to the original information.

WHETHER THE DISTRICT COURT ERRED BY PERMITTINGTESTIMONYBY - A PROSECUTION WITNESS CONCERNING PRIOR STATEMENTS BY A 

### -- ------------------- COMPLAINING WITNESS? At issue is the testimony of prosecution witness MaryPeterson, a socialworker. During thedirect examination of Peterson, defense counsel objected to a line of inquiry about statementsR. F. had made to Peterson about the nature of the sexual assaults. The inquiry was in connection to remarks made by R. F., whose testimony on cross-examination

was allegedly unclear about the occurance of sexual assaults. Defense counsel objected to any remarks by Peterson as inadmissible hearsay. The State argued that Peterson's testimony would be admissible under Rule 801(d)(l), Mont.R.Evid., which essentially removes from the concept of hearsay prior consistent or inconsistent statements. Over continuing objection, the trial court specifically permitted Peterson to testify under Rule 801(d)(l)(B) as to prior consistent statements, because the examination of R. F. had "at least raised the specter of impeachment sufficiently to permit this sortof confirmation by another witness." Defendant's argument is that Peterson's remarks about R. F.'s previous statements contradicted R.. F.'s trial testimony, thus making the remarks prior inconsistent, as opposed to prior consistent,statements. As such,defendant maintains that the statements should have been excluded. Defendant's position is based on the assertion that Peterson's recitation of R. F.'s experiences differed markedly from the descriptions offered by R. F. herself. By admitting the much more graphic statements of Peterson, defendant concludes that he was unduly prejudiced in the minds of jurors. Whether there exists any significant difference between the substance of Peterson's testimony about R. F.'sinitial statements to her and R. F.'s later testimony is immaterial with respect to the issue of admissibility. Regardless of the trial court's references to subsection (d)(l)(B) of Rule 801, prior inconsistent statements are admissible under Rule 801(d)(l)(A) whether or not the declarant has been impeached by either side in the case. See, e.g., State v. Fitzpatrick (1980), 186 Mont. 187, 195-96, 606 P.2d 1343, 1348. Although defense counsel did make a continuing general objection to Peterson's testimony prior to her recitation of R. F.'s earlier statements, the law generally requires more specific objections to be made to portions of the testimony deemed inappropriate; broad, general objections do not suffice. See, e.g., State v. Britt (1977), 291 N.C. 528, 231 S.E.2d 644, 650. Defense counsel made no specific objections to any portion of Peterson's testimony regarding the use of prior inconsistent, as opposed toprior consistent,statements. Furthermore, after carefully comparing the statements made by R. F. and Peterson,we conclude that any technical inconsistencies are minimal and irrelevant. The statements are practically consistent with each other. All three incidents described depict sexual misconduct involving the same people in the same places. The only likely inconsistency, which involves the differing descriptions of the first incident of assault, is not crucial to the conviction. Whether R. F. merely danced nude on defendant's bed while he lay naked under the covers or whether he actually masturbated on her body was non-prejudicial, because the inconsistencycould only serve to impeach either R. F. or Peterson. The other sexual assaults involvingR.F.were established, so the legal effect of excluding evidence of the first incident would not warrant reversal of defendant's convictionson the other incidents.

WHETHER THE DISTRICTCOURT ERRED IN REFUSING TO PERMIT



### .................... DEFENDANT'S REQUEST TO EXAMINE A PARTICULAR WITNESS AS A HOSTILEORADVERSE WITNESS? M., defendant's stepdaughter, was one of the victims, but was not called as aprosecutionwitness, even though she had been listed as one in the final information. The defense called her as a witness in its case-in-chief, and requested that she be examined as a hostile witness under Rule 6ll(c), Mont.R.Evid., solely on grounds that she had been listed as a prosecution witness. The State objected, and the motion was denied until such time as M. 'stestimony during cross-examination actually reflected hostility toward defendant. M. proceeded to testify, denying any sexual improprieties involving her and her friends with defendant and denying statements made to social worker Mary Peterson about these improprieties. The question of whether a witness is adverse under Rule 611(c) is addressed to the sound discretion of the trial court. Jojolav. Baldridge Lumber Co. (Ct.App. 1981), 96 N.M. 761, 635 P.2d 316, 318 (interpreting Rule 611(c), N.M.R.Evid., which is identical to the Montana rule). This is consistent with pre-Rules of Evidence case law in EJIontana. See, e.g., State v. Collette (1946), 118 Mont. 473, 477, 167 P.2d 584, 586. Here, the trial court was not unwilling to letdefense counselproceed under Rule 611once actual hostility was established. In light of M.'stestimony absolving defendant, the "on-paper" significance of M. initiallybeing identified asaprosecution witness is irrelevant.

WHETHER THE DISTRICT COURT ERRED IN THE ADMISSION OF



### ............................................. REBUTTAL TESTIMONY CONCERNING "PRIOR WRONGFUL ACTS" BY THE DEFENDANT? At issue is the testimony of D. H., a young girl who supposedly had slept in defendant's bed while defendant was both present and naked. The event allegedly took place some time before the incidents involved in the instant case, while D. H. was visiting 

### M. The State had given notice under State v. Just (1979), 184 Mont. 262, 602 P.2d 957, that it intended to introduce such evidence to show "opportunity, intent, plan, knowledge, [and/or] absence of mistake or accident." However, the Statedid not produce D. H. as a witness during the case-in-chief. Instead, shewas produced as a rebuttal witness, and was permitted by the court to testify over objection as to the incident in defendant's bed. Defendant renews two arguments advanced during trial: first, that the admission of the rebuttal testimony is controlled by the substantive requirements outlined in Just for admissibility of "other crimes" evidence; and second, that the testimony does not meet any of the requirements. Rule 404(a)(l), Mont.R.Evid., permits the accused to offer evidence of hisgood character to support an inference that he did not commit the crime, and allows theprosecution to rebut the same with contrary evidence. In the instant case, the defendant testified on his own behalf, claimingthat he had never engaged in improper sexual activity with his stepdaughter, the other victims, or anyone else. Defendant's wife also testified on his behalf, describing his sexual mores as orthodox, and that the charges against him did not comport with her knowledge of him. Defendant's step-daughter denied the existence of the assaults and the alleged incident with D. H. Other witnesses also testified

as to defendant's good character. The major aim of defendant's case, as revealed by the testimony of defendant and his witnesses, was the establishment of defendant's reputation for morality and personal truthfulness--conduct and beliefs inconsistent with the charges filed againsthim. Under the circumstances, the State was entitled to rebut what it believed were false claims. The only rebuttal witness to testify about these matters was D. H. The fact that the prosecuting attorneys reserved her testimony until rebuttal, rather than present it during the State's case-in-chief, is of no legal consequence. The Just substantive requirements for admissibility of "other crimes

or acts" evidence do not apply to rebuttal evidence offered under Rule 404(a)(1). We therefore need not determine whether the essence of D. H.'s testimony meets these requirements.

WHETHER THEDISTRICT COURT ERRED INDENYING DEFENDANT'S MOTION FOR A NEW TRIAL ON GROUNDS OF ALLEGED JUROR



### .................................................. MISCONDUCT AND INSUFFICIENT CREDIBLE EVIDENCE TOCONVICTTHE DEFENDANT? 1. JuryMisconduct After trial, defense counsel procured an affidavitfrom one of the jurors, Lucy Lamping, stating that she believed the defendant was innocent, and that the guilty verdicts were the result of pressure brought to bear on her and other jurors because of the late morning-early hour deliberations and a belief by some jurors that if a new trial was ordered (presumably because of a hung jury), defendant would eventually be convicted anyway. Defendant

reasons that Rule 606(b), Mont.R.Evid. permits introduction of the Lamping affidavit because the assumption that defendantwould receive anew trialwas the kind of improper outside information frownedupon under theRule, and because thepressures of late night-early morning deliberationswere clearlyprejudicial. Defendant freely concedes that Rule 606 generally prohibits inquiry into thevalidity of jury verdicts through admission of juror affidavits or testimony concerning "any matter or statement occurring during the course of the jury's deliberations or

# .. . the effect of any thing upon his or any other juror'smind or emotions as influencing him to assent or dissent from the verdict or indictment or concerning his mental processes in connection therewith." We find that neither allegation contained in the Lamping affidavit may serve as a basis for inquiry into the jury's verdicts under any of the exceptions toRule 606(b). Recently, in State v. Elaxwell (Mont. 1982), 647 P.2d 348, 39 St.Rep. 1149,this Court emphasized that Rule 606(b) is designed to insure the right to have a jury deliberation in camera, free from 'frivolous and recurrent invasions of that privacy by disappointed litigants 

# .

# .. [and that] [tlhe exceptions stated in [Rule 6061 

# .

# .. are exclusiveand are narrowly construed." 649P.2d at 353, 39 St.Rep. at 1154 (emphasis added). Here, there are no allegations that the alleged argument during jury deliberations about a "new trial" and expedient verdicts were the result of outside influence or pressure brought on the jury, such that Subsection (b) (2) of Rule 606 would come into play and permit introduction and consideration of the affidavit. Moreover, the effect of lengthy deliberations on a juror's physical, mental, or emotional condition and the subsequent effect these conditions may have on the individual juror's vote are, for thepurpose of challenging theverdict, within the general prohibition of Rule 606(b). SeeMaxwell, supra, 647P.2d at 353, 39 St.Rep. at 1154,citing Mueller, Juror's Impeachment of Verdicts and Indictments in FederalCourt Under Rule 606(b), 57Neb.L.Rev. 920 (1978). Given that the allegations contained in the Lamping affidavit really go to internal deliberations involving no outside pressure, Montana law does not support defendant's motion for a new trial on grounds of jury misconduct. The trial judge did not err in refusing to accept and consider the af fidavit. Indeed, the trial judge was quite considerate of the jury's well-being as well as the defendant's interests. According to the Minute Entries of the District Court's file on the case,at 2:25 a.m. on June 17, 1983, the jury foreman advised the District Judge and the parties of the jury's desire to continue deliberations. No objections to continuation were voiced by any of the jurors at that time. Later, upon delivery of the verdict, the jury foreman indicated to the trial judge that there

were no dissenters to theverdicts.2. Sufficiency of the Evidence Defendant's argument here is that the existence of inconsistencies in the testimony of complaining witnesses makes the evidence supporting conviction both insufficient and incredible. Without question, great weight had to have been placed on credibility of the witnesses. Nevertheless, upon examining the record, including the testimony of complaining witnesses,we find that the jury's determination thatdefendantwas guilty as charged is supportable. The standard of review is whether the jury's verdict is supported by substantial evidence. State v. Greenwell (Mont. 1983), 670P.2d 79, 82,40 St.Rep. 1616, 1621. With respect to the crucialmatter of witness credibility, 

### "[tlhe jury is the sole judge 

# . . . [I]nconsistencies [in witness testimony] do not make [the] testimony inherently incredible. 'Only in those rare cases where the story told is so inherently improbable or so nullified by internal self-contradictions that no fair-minded person could believe it may we say that no firm foundation exists for theverdict based on it.'" Maxwell, supra, 647P.2d at 351, 39 St.Rep. at 1152 (citations omitted). A review of R. F.'s testimony does reveal some difficulty in describing the nature of the assaults. Nevertheless, this testimonydoesdescribe in fairly certain terms two incidents of sexual assault, and a review of the entire record indicates that these descriptions held up under cross-examination. Defendant does not quote from L.M.'s testimony, but maintains that it came about through "heavily leading questions." Defense counsel maintains that he objected to this line of testimony, but there is no indication in the record that he did so. Moreover, the testimony contains evidence that a sexual assault tookplace. Finally, although M.'s testimony tends to vindicate defendant, the testimony fromMary Peterson aboutM.'s prior statements to her tends to establish that assaults were committed

# . Although defendant doesnotgobeyond the testimony of the three girls, the jurydid hear important testimony from other witnesses, and was entitled to consider and weigh this testimony in conjunction with that of the complaining witnesses: (1) Dr. Elizabeth Gunderson, a defense witness, informed the jury that, in her opinion, even though there

was no evidence of penetration of R. F., she believed that the child had experienced sexual molestation. The descriptions made by R. F. to Gunderson of the events surrounding the molestation closely match the descriptions givenby R. F. during her testimony. (2)Detectives Sam McCormack and Richard Hammerbacker testified to remarks made by defendant during their only interrogation of him. (Defendant was properly informed of his Miranda rights and voluntarily signed a waiver.) The remarks could have been construed as confessions by the defendant:



### "Q. [By Ms. Clemens] After he denied having sexual intercourse, did you ask any further questions? "A. [McCormack] He said that all he did was played around with them with the use of some vaseline, and I again asked him if he attempted to have sexual intercourse with them, and he said, 'Well, yes, but --I and at that time stopped talking and asked for an attorney."9. [ByMr. McGrath] Could you tell the jury in your own words what happened [when you interrogated thedefendant?]

"A. [Hammerbacker] At this time Detective McCormack, who is my partner, advised Roger Anderson of his rights per the Miranda decision and had him sign a waiver of these rights. He, Detective McCormack then asked Roger Anderson if he had ever had sexual intercourse with any of the young girls, and I was standing behind Roger Anderson, and I heard him answer Detective McCormack,he said, 'No. I did fool around,' or 'We did fool around with somevaseline.

### ' "And then Detective McCormack asked him if he had ever attempted sexual intercourse,and RogerAnderson answered, 'Yes, but --I I recall that 'but,' and then he said, '1'11 get an attorney and getback toyou.'" (Tr. 253) Neither statement was objected to by defense counsel, although counsel did attempt to adduce testimony from the officers in an attempt to challenge their interpretation of defendant's remarks; (3) Alice Morse, a social worker who works with sexually abused children, testified about the possibility that molested children may often deny that they have been victimized by theirparents, for fear of losing the security of home life and love of the accused parent. Thus, the jury could have believed that defendant's stepdaughter had changed her story only out of love and respect for the defendant. (4)Penny Say, the restitution officer involved in R. F.'s previous problem with juvenile authorities, indicated that she likely had nomotive to punish defendant for his role in bringing her to Say and other authorities for her previous offenses.In conclusion, the evidence, when considered in its entirety, is both sufficient in quantity and quality to sustain the jury'sverdicts.

WHETHER THE DISTRICT COURT ERRED IN REFUSING TO GIVE THE SMITH JURY INSTRUCTION, WHICH PROVIDES THATALLEGATIONS OF SEXUAL CRIMESARE "EASILY MADE BUTDIFFICULT TOREFUTE?" - Defendant wanted the jury to be instructed that "the charge of sexual assault is easily made and difficult to refute." This is a variant of the cautionary instruction determined by this Court in State v. Smith (1980), 609 P.2d 696, 37 St.Rep. 583, to be mandatory when victim animus toward defendant is shown 

### - and where there is an absence of critical testimony corroborating the charges. The trial court refused to give the instruction. We note initially that Smith has recently been overruled on grounds that cautionary instructions like the

one requested in the immediate case are an improper comment

on the evidence and are not required by law or public policy. See State v. Liddell, No. 83-276. Nevertheless,

even if we assume that Smith-type instructions were lawful at the time of trial, the court did not err by refusing to give one in the instant case. Our past decisions emphasize that Smith-type instructions were proper only in exceptional circumstances. Victim animus, for example,had to be demonstrated by proof 

### of malice or vengeance on the part of the victim. See Smith, supra. See also State v. Mackie (Mont. 1981), 622 P.2d 673,676,38 St.Rep. 86,91,an opinion authored by the trial judgepresiding in the immediate case. M.'s testimonytended to vindicate defendant. R. F.'s and L. M.Is testimony was obviously damaging, but the trial court found no evidence in their statements of "manifest malice or motive for revenge," Mackie, supra, 622 P.2d at 

### 676, 38 St.Rep. at 91. Moreover, any retaliatory motive on R. F1s part appears to be a "strawman," primarily because the criminal investigation leading up to the charges began through L. M.'s mother's independent questioning of her daugher

# . Insofar as the presence of corroborative evidence is concerned, the jury heard the testimony of the detectives regarding defendant's "confession." His references to the

use of vaseline, for example,are corrobarative of at least one aspect of thevictims1testimony regarding the nature of the sexual assaults. In any event, the giving of the Smith instruction requiredproof of both victim animus 

### - and lack of corroborative testimony. Under the circumstances, the trial court acted properly in denying the instruction. The conviction is affirmed.



### We concur: 

# ~:,&J ChiefJusticeMr. Justice FrankB. Morrison,Jr. dissentsas follows: There are several close evidentiary questions in this

case. The trial court gave careful attention to the arguments of counselandwhere at allpossible Ibelieve this Court should defer to the discretionof the trial court when discretion canbe legitimately engaged. I must dissent with respect to one evidentiary ruling which was clearly erroneous. R.F.'s charge against Bratcher

was dismissed and I do agree with themajority opinion that suchdismissal, standingby itself, doesnot show the charges

were demonstrably false. I also agree that the chargesmay havebeendismissed.at the insistenceof complainant's mother because themother did notwant R.F. to experience the trauma of trial. Again, this doesnot show the chargeswere false. The majority opinion then goes on to gloss over the critical issue with respect to the admissibility of R.F.'s charges againstBratcher. The majority states: "Similarly,the existence of medical testimony in the instant case that R.F. had never experienced intercoursedoes notprove the falsityof theprior charges. Bratcher had been charged with sexual assault, not sexual intercourse without consent, and R.F. 's equivocal statements about what shehad experienced are not probative of the truth or falsityof thecharge againstBratcher." This statement may seem innocuous when read casually. However, the statement is misleading because R.F.'s charges against Bratcherwerenot equivocal statements.Additionally, the majority opinion fails to specifically address the real issue because defendant's position cannot be persuasively answered. The facts here are simple. R.F

# ., the complainant zgainst Roger Anderson, had previously charged one Bratcher with sexual assault. Her complaint against Bratcher stated that Bratcher had engaged her in numerous acts of sexualintercourse. Themedical testimony established thatR.F. had

never had sexual intercourse. Defendant sought to introduce the false charges R.F. made against Bratcher to demonstrate that R.F. was lacking in credibility. The evidence would have prejudiced R.F. but was so probative on the issue of R.F.'s credibility that the trial court clearly committed

error indenying admission of the evidence. Themajority, without ever telling us what chargesR.F. made against Bratcher, simply pa.ssesthem off as "equivocal statements." In all fairness Imust set forth at least one of these "equivocal statements"as illustrativeto show that R.F.'s previous charges against Bratcher were demonstrably false and were admissible in the trialofRoger Anderson. In chambers, during argument on the admissibility of this evidence, defense counsel presented to the trial court the following excerpt fromR.F.'s statement againstBratcher. She

was being interrogated by law enforcement. She was asked: "Let's go back to this apartment by your grandmother's now. When he asked you to go into the apartment, exactly what happened the ,-ast time?" R.F. responded: "Wegotonandhe stuck his thing inme." Themedical evidence clearly showed R.F. was previously chaste. Her charge against Bratcherwas demonstrably false. The evidence should have been admitted to impeach her credibility. I do not feel that any one justice always knows the right answer. In fact,most of the questions presented to this Court are close questions which do not compel a certain resolution. Although a dissenting justicemay feel strongly the majority has goneastray, judicial lectures not necessary to issue resolution are inappropriate and should be avoided.Having filed this judicialcaveat, I feel compelledhere to disregard my own admonition. The majority of this Court has become far too "result oriented" in deciding criminal

cases. Significantevidentiary and constitutional errors are avoided as the majority expeditiously moves to affirm the conviction. State v. McKenzie (1981)38 St.Rep. 1745; State

v. Arrow Weinberger (1983) 40 St.Rep. 844; State v. Gratzer

(1984) 41 St.Rep. 727; State v. Sigler (1984) St.Rep.

I do not believe the majority is pandering to the editors and commentators who believe the courts are hypertechnical, or to the majority's "law and order" constituency. Rather Ibelievemy brotherswho avoidpivotal issue confrontationdo sobecause ofa subconscious desire to

see the "guilty"pay for their misdeeds. The temptation to so yield is, at times, almost irresistible. However, as justices sworn to uphold the Constitution and the laws of this State, we cannot afford the luxury of indulging our

senseof justice. Justice is for juries. Our role is to see that the law is properly applied. The present inclination to do justice arises from a sense of judicial divinity and the result is to elevate seven philosopher kings to a position above the law. Members of our Court have, by way of dissent, been termed "intellectually dishonest." I find that expression inappropriate to adequately impart the intensity of my opposition to what seems a clear abrogation of judicial responsibility. Even though the majority has undoubtedly acted in good faith, failureto fully and accuratelypresent the record and discuss the legal issues is,in my opinion, in derogation of the constitutional responsibilities of this office.Mr. Justice JohnC. Sheehy,dissenting:

Idissent on at least twogrounds. First, I do not agree that the District Court properly excluded evidence of the changing theories of the crime committed, as shown by the amendments to the i~formation. This conviction depend.ed on the credibility of the State's witnesses. The amendments tend to show the inconsistency of the factsbeing reported to the Stateby thesewitnesses. If the variance in the reportsbeing given to the State by the witnesses are of such gravity that the State must withdraw some criminal charges and insert others in their place, the jury in its search for truth should be allowed to know that. Second, Iwant todisagree with themajority handling of the Smith instruction, although I agree the instructionwas not appropriate in this case. The majority, though,relies

on State v. Liddel-I (No. 83-276, Montana Supreme Court, decided July 10, 1984), for the proposition that the Smith instruction is improper. The Smith instruction was not raised as an issue by the defendant in Liddell; this Court gratuitously undertook towipe it out. Here the principle of Smith doesnotapply. There isnovictimmalice involved and there iscorroborativetestimony.

Justice

r4r. JusticeDanielJ. Shea dissentsandwill file awritten dissent later.