No. 83-442 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1384 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-VSROGER L. ANDERSON, 

Defendant and Appellant. 

APPEAL FROM: District Court of the First Judicial District, 

In and for the County of Lewis & Clark, 

The Honorable Gordon R. Bennett, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jackson Law Firm; Gregory Jackson argued, Helena, 

I4ontana 

For Respondent: 

Hon. Mike Greely, Attorney General, Helena, Montana 

Clay R. Smith argued, Asst. Atty. General, Helena 

Mike McGrath argued, County Attorney, Helena, Montana 

Submitted: April 20, 1984 

Decided: July 16, 1984 

Filed: JUC i . '1984 

Clerk 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Defendant Roger Anderson appeals from his conviction 

in the District Court of the First Judicial 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 

subsequently amended to sexual assault. All of the charges 

involve three minor children: M., the defendant's 

step-daughter, age ten at the time of trial; R. F., a friend 

of M., age thirteen at time of trial; and L. M., another 

friend of M., age nine at the time of 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 

assaults had been committed by defendant on her or the other 

victims. However, the State produced testimony to confirm 

all of the charges of sexual assault. The jury also heard 

expert testimony on the subject of sexual offenders and 

child sex crime. 

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 at the 

Montana State Prison, suspended fifteen years of each 
sentence, and designated defendant as nondangerous for 

purposes of parole eligibility. From his conviction and 

denial of his motion for a new trial, defendant appeals. 

The following issues are presented 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 

defendant was prejudiced? 

(2) Whether the District Court erred in granting the 

State's motion in limine to exclude evidence concerning a 

prior sexual assault allegation by prosecution witness 

R. F. against an individual other than the defendant? 

(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 

statements by a complaining witness? 

(5) Whether the District Court erred in refusing to 

permit defendant's request to examine a particular witness 

as a hostile or adverse witness? 

(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 the defendant? 

(8) Whether the District Court erred in refusing to 
give the Smith jury instruction, which provides that 

allegations of sexual crimes are "easily made but difficult 

to refute?" 

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 S U B S T A N T I A L R I G H T OF ------------------- THE DEFENDANT WAS 

PREJUDICED? 

Defendant's trial brief, presented to the judge a few 

days before trial, outlines four arguments or theories to be 

advanced by defense counsel: (1) the introduction of 

testimony to establish defendant's "good character;" (2) 

evidence of wrongful motives on the part of R. F. to testify 

against the defendant, to wit: that she was attempting to 

"get back" at defendant, 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 against defendant. 

Upon receipt of the brief, the trial judge tendered a 

copy to the county attorney. Defense counsel learned that a 

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 had 
unfairly 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 trial brief, and that it had tendered 

a copy of the brief only to expedite the trial. The motion 

to dismiss charges was denied. 

On appeal, defendant renews his initial arguments 

supporting dismissal of the charges, arguing that release of 

a copy of the brief to opposing counsel was in violation of 

the constitutional guarantee against self-incrimination and 

local court rules and customs pertaining to trial briefs. 

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, 12 L.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 trial brief. 

Furthermore, nothing in the First Judicial District 

Court rule or custom on trial briefs affords defendant the 

kind of confidentiality sought after respecting the contents 

of his brief. The rule or custom requires only that a brief 

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. A 
brief 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 IN GRANTING THE STATE'S - 

------ MOTION IN LIMINE TO EXCLUDE EVIDENCE CONCERNING A PRIOR 

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

AGAINST AN INDIVIDUAL OTHER THAN THE DEFENDANT? 

Defendant wished to produce evidence of a previously 

dismissed sexual assault charge involving R. F. as the 

complaining witness to demonstrate that she had a vengeful 

motive in bringing a similar charge against defendant. 

Prior to trial, the State moved to exclude this evidence and 

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 attorney would not only testify that his client 

had adamently denied the charge, but that it was his belief 

that the charge was motivated only by R. F.'s desire to 

obtain revenge for having been denied access to a play area 

by Bratcher. Defendant Anderson's counsel argued that 

independent medical testimony to be heard in the immediate 

case would at least confirm that R. 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 to probe into R. F.'s 
general moral 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 

there was no doubt in his mind regarding the truthfulness of 

R. F.'s allegations against Bratcher. One of the 

prosecuting attorneys in the instant case informed the court 

that the social worker involved with R. F. in the Bratcher 

case had urged the family to drop the charges, because R.F. 

had essentially forgotten the alleged assaults, and because 

the experience of trial could have been bad for her. As to 

the matter of whether R.F. had suffered penetration, the 

State indicated that Bratcher had been charged with sexual 

assault, regardless of statements made by R. F. that could 

be construed as evidence that she may have experienced 

intercourse. 

The trial judge granted the State's motion in limine, 

concluding that the defendant's "evidence" was more unfairly 

prejudicial than probative. The judge's explanation for 

that ruling 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's presented, as 

noted byr 

witness' credibility, but, in fact, it 

------------ puts the complaining witness . . . on 
trial for sexual deviation. When you ------------- balance that asainst what can be proven 

bv the fact that she brouaht a charae and 

then dropped it, is placing a burien on 

the State that the State should not have 

to bear, and I think it defeats the basic 

end that we're trying to reach here, and 

------------ that is discover the truth about this 

Darticular com~laint . . . TTlhe fact 

that under the circumstances described by 

[the prosecutor in the Bratcher case], ~. that this case was drow~ed is not even 

very good evidence against her .................... --------- 

---------- credibility, but it's overwhelming ....................... evidence against her character and would 

tend to make this a trial of the ................................ 

complaining witness." Tr. at 25-26 

(emphasis added). 

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 that McSloy is bad 

law, out-of-step with the Montana Rules of Evidence, and 

contrary to a line of cases begining with People v. Hurlburt 

(1959), 166 Cal.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 

instances may be inquired into on cross-examination of the 

witness, in the 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 

admittedly cuts off even the limited inquiry contemplated by 

the above-cited exception to Rule 608(b). Hurlburt, 

however, is more in line with the current rules of evidence. 

As the California court emphasized, evidence of prior false 
accusations 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 

state of mind, motive, or biases with respect to making the 

more current accusations. Hurlburt, 166 Cal.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 most jurisdictions. See e.g., 

People v. Simbolo (1975), 188 Colo. 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; State v. Nab (1966), 

245 Or. 454, 421 P.2d 388; State v. Izzi (1975), 115 R.I. 

487, 348 A.2d 371. 

In cases involving sexual intercourse without 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 integrity of the trial and . . . 

preventling] it from becoming a trial of the victim." 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 against 
introduction 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 confront witnesses. See Hughes 

v. Raines (9th Cir. 1981), 641 F.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, 166 Cal.App.2d 334, 333 P.2d at 87; 

People v. Johnson (Cal. Ct. App. 1967), 64 Cal. Rptr. 875, 

881, vacated on other grounds (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, see Little, supra, but certainly because 
of 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, 641 F.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. People v. 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 charges has been barred in those instances 

where the charges have been dropped due to an inability to 

locate the victim, State v. Demos (1980), 94 Wash.2d 733, 

619 P.2d 968, or due to a belief that there was insufficient 

evidence to prosecute, 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 falsity and were still disputed at the time of trial. 

Defense counsel's offers of proof are also irrelevant. 

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 People v. Mandel (1978), 61 A.D.2d 563, 403 

N.Y.S.2d 63, 68, rev'd on other grounds (1979), 48 N.Y.2d 

952, 401 N.E.2d 185, 425 N.Y.S.2d 63, cert. den. (1980), 446 

U.S. 949, 100 S.Ct. 2913, 64 L.Ed.2d 805. Similarly, the 

existence of medical testimony in the instant case that R.F. 

had never experienced intercourse does not prove the falsity 

of the prior charges. Bratcher had been charged with sexual 

assault, not sexual intercourse without 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 concluded 
correctly 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 about R. 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, we modify our holding in McSloy to conform 

to the principles expressed in Hurlburt and implicit in Rule 

608(b). Applying this modified standard to the facts of the 

immediate case, we conclude that the trial court did not 

commit error in its rulings on the admissibility of evidence 

concerning the Bratcher incident. 

................................................... 

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? 

The State amended 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 

the purpose of attacking the credibility of State witnesses. 

The county attorney moved 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. I made a determination that I 

did not want to do that. I don't want to 

make an argument to the jury that oral 

sex can amount to rape. There was also 

some misunderstanding as . . . to whether 

or not there was sexual intercourse or 

not as has been alluded to earlier; 

therefore, I made a decision. - The 

victims did not make a decision. I made 

a decision 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 any ------------------- prior inconsistent 

statements the~ mav or mav not have made. 

.............................. 

He will have an opportunity to 

.............................. 

cross-examine the officer that 

----- investigated ----------- this ----- case ---------.- regardine 

statements made in his re~ort reaardina 

whether there was sexual intercourse or 

not; therefore, counsel will have more 

than am~le o~nortunitv & .. to deal with the 

issues involved, and < would ask that the 

jury not be informed to the fact that for 

trial. tactic reasons this case has been 

amended." Tr. at 27-28 (emphasis added). 

After hearing arguments by defense counsel, the court 
granted 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 is meritless. 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 that defense counsel was 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 PERMITTING TESTIMONY BY 

-- A PROSECUTION WITNESS CONCERNING PRIOR ------------------- STATEMENTS BY A 

COMPLAINING WITNESS? 

At issue is the testimony of prosecution witness Mary 
Peterson, a social worker. During the direct examination of 

Peterson, defense counsel objected to a line of inquiry 

about statements R. 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 sort of 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.'s 
initial 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 to prior 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 inconsistency could only serve to impeach either 

R. F. or Peterson. The other sexual assaults involving R.F. 
were established, so the legal effect of excluding evidence 

of the first incident would not warrant reversal of 

defendant's convictions on the other incidents. 

.................... 

WHETHER THE DISTRICT COURT ERRED IN REFUSING TO PERMIT 

DEFENDANT'S REQUEST TO EXAMINE A PARTICULAR WITNESS AS A 

HOSTILE OR ADVERSE WITNESS? 

M., defendant's stepdaughter, was one of the victims, 

but was not called as a prosecution witness, 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. 's testimony 

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. Jojola v. 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 let defense counsel proceed under Rule 611 once 

actual hostility was established. In light of M.'s 
testimony absolving defendant, the "on-paper" significance 

of M. initially being identified as a prosecution 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 State did not produce D. 

H. as a witness during the case-in-chief. Instead, she was 

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 his good character to support an inference 

that he did not commit the crime, and allows the prosecution 

to rebut the same with contrary evidence. In the instant 

case, the defendant testified on his own behalf, claiming 
that 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 against him. 

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 THE DISTRICT COURT ERRED IN DENYING DEFENDANT'S 

.................................................. 

MOTION FOR A NEW TRIAL ON GROUNDS OF ALLEGED JUROR 

MISCONDUCT AND INSUFFICIENT CREDIBLE EVIDENCE TO CONVICT THE 

DEFENDANT? 

1. Jury Misconduct 

After trial, defense counsel procured an affidavit 
from 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 

defendant would receive a new trial was the kind of improper 

outside information frowned upon under the Rule, and because 

the pressures of late night-early morning deliberations were 

clearly prejudicial. 

Defendant freely concedes that Rule 606 generally 

prohibits inquiry into the validity 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's mind 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 to Rule 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 exclusive 
and are narrowly construed." 649 P.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 the purpose of challenging the verdict, within 

the general prohibition of Rule 606(b). See Maxwell, supra, 

647 P.2d at 353, 39 St.Rep. at 1154, citing Mueller, Juror's 

Impeachment of Verdicts and Indictments in Federal Court 

Under Rule 606(b), 57 Neb.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 f idavi t. 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 the verdicts. 
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 

that defendant was 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), 670 P.2d 79, 82, 40 St.Rep. 1616, 1621. With 

respect to the crucial matter 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 the verdict 

based on it.'" Maxwell, supra, 647 P.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 testimony does describe 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 took 
place. Finally, although M.'s testimony tends to vindicate 

defendant, the testimony from Mary Peterson about M.'s prior 

statements to her tends to establish that assaults were 

committed . 

Although defendant does not go beyond the testimony of 

the three girls, the jury did 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 

given by 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. [By Mr. McGrath] Could you tell the 

jury in your own words what happened 

[when you interrogated the defendant?] 

"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 some vaseline. ' 

"And then Detective McCormack asked him 

if he had ever attempted sexual 

intercourse, and Roger Anderson answered, 

'Yes, but --I I recall that 'but,' and 

then he said, '1'11 get an attorney and 

get back to you.'" (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 their parents, 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 no motive 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's verdicts. 

WHETHER THE DISTRICT COURT ERRED IN REFUSING TO GIVE THE 

SMITH JURY INSTRUCTION, WHICH PROVIDES THAT ALLEGATIONS OF 

SEXUAL CRIMES ARE "EASILY MADE BUT DIFFICULT TO REFUTE?" - 

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 judge presiding in the immediate case. M.'s testimony 
tended 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 the victims1 testimony regarding the nature of 

the sexual assaults. In any event, the giving of the Smith 

instruction required proof 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 Chief Justice 
Mr. Justice Frank B. Morrison, Jr. dissents as follows: 

There are several close evidentiary questions in this 

case. The trial court gave careful attention to the 

arguments of counsel and where at all possible I believe this 

Court should defer to the discretion of the trial court when 

discretion can be 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 the majority opinion that 

such dismissal, standing by itself, does not show the charges 

were demonstrably false. I also agree that the charges may 

have been dismissed. at the insistence of complainant's mother 

because the mother did not want R.F. to experience the trauma 

of trial. Again, this does not show the charges were false. 

The majority opinion then goes on to gloss over the 

critical issue with respect to the admissibility of R.F.'s 

charges against Bratcher. The majority states: 

"Similarly, the existence of medical testimony in 

the instant case that R.F. had never experienced 

intercourse does not prove the falsity of the prior 

charges. Bratcher had been charged with sexual 

assault, not sexual intercourse without consent, 

and R.F. 's equivocal statements about what she had 

experienced are not probative of the truth or 

falsity of the charge against Bratcher." 

This statement may seem innocuous when read casually. 

However, the statement is misleading because R.F.'s charges 

against Bratcher were not 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 sexual 
intercourse. The medical testimony established that R.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 in denying admission of the evidence. 

The majority, without ever telling us what charges R.F. 

made against Bratcher, simply pa.sses them off as "equivocal 

statements." In all fairness I must set forth at least one 

of these "equivocal statements" as illustrative to show that 

R.F.'s previous charges against Bratcher were demonstrably 

false and were admissible in the trial of Roger Anderson. In 

chambers, during argument on the admissibility of this 

evidence, defense counsel presented to the trial court the 

following excerpt from R.F.'s statement against Bratcher. 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: 

"We got on and he stuck his thing in me." 

The medical evidence clearly showed R.F. was previously 

chaste. Her charge against Bratcher was 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 justice may feel strongly 

the majority has gone astray, judicial lectures not necessary 

to issue resolution are inappropriate and should be avoided. 
Having filed this judicial caveat, I feel compelled here 

to disregard my own admonition. The majority of this Court 

has become far too "result oriented" in deciding criminal 

cases. Significant evidentiary 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 I believe my brothers who avoid pivotal 

issue confrontation do so because of a 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 

sense of 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, failure to fully and accurately present 

the record and discuss the legal issues is, in my opinion, in 

derogation of the constitutional responsibilities of this 

office. 
Mr. Justice John C. Sheehy, dissenting: 

I dissent on at least two grounds. 

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 facts being reported to the State by these witnesses. If 

the variance in the reports being 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, I want to disagree with the majority handling of 

the Smith instruction, although I agree the instruction was 

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 to wipe it out. Here the principle of 

Smith does not apply. There is no victim malice involved and 

there is corroborative testimony. 

Justice 

r4r. Justice Daniel J. Shea dissents and will file a written 

dissent later.